text:
    Phyllis Sanders VINING v. Travis F. VINING.
    No. 11251.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.

      James E. Shields, New Orleans, for appel-lee.
    John Vance Robichaux, Jr., Glenn E. Diaz, Chalmette, for appellant.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

We are confronted with the issue whether a consent alimony and child support judgment is enforceable when rendered on the same day that a default judgment of divorce was granted but the divorce decree did not provide for alimony and child support. We conclude the judgment is enforceable, and accordingly affirm.

On July 10, 1973 a judgment of separation from bed and board was granted to the parties. In that judgment defendant was ordered to pay the sum of $70.00 per week for the support of two minor children. Thereafter, on July 22, 1976 a “consent judgment on rule” was rendered, ordering defendant to pay to plaintiff $200.00 per month for her support and $40.00 per week support for each of the two minor children. Rendered on the same date as the consent judgment on rule was a judgment of divorce. The default divorce judgment was silent on alimony and child support, and did not incorporate by reference, or include the consent alimony and child support award rendered on the same day.

On February 16,1979, the trial court rendered an executory judgment against defendant in favor of plaintiff, in the sum of $3,005.40 for accumulated unpaid child support and $5,000.00 in accumulated unpaid alimony. That February 16th judgment further condemns defendant to continue to pay $200.00 per month alimony and $80.00 per week child support.

Defendant, appealing, contends the trial judge erred in rendering the February 16, 1979 executory judgment and continuing in effect the alimony and child support order for the reason that the divorce decree did not incorporate a judgment condemning defendant to pay alimony and child support. ■According to defendant, the separate consent alimony and child support judgment rendered on the same date that the divorce decree was rendered, and signed by the attorney for the litigant, but not by the litigant, became unenforceable when the divorce decree, silent on alimony and child support, was rendered. Defendant, relying on LSA-C.C.P. art. 1201, further contends that because citation and service were not made upon him, the “June 14, 1976” consent judgment is an.absolute nullity.

Considering defendant’s contentions in reverse order, we find no merit to the claim of absolute nullity for failure of citation and service. In response to the June 14, 1976 petition for divorce filed by Travis Vining, on July 16,1976 Phyllis Vining filed a rule for alimony and child support. This pleading is signed by counsel of record for defendant, Travis Vining, with the notation “service waived and accepted.” It is clear from the acceptance of the service by defendant’s attorney that the requirement for service has been waived. Although citation apparently was not waived, the judgment complained of by defendant is a consent judgment signed by defendant’s attorney. Under these circumstances we conclude objections regarding failure of citation have been waived.

Furthermore, we find no merit to the primary contention that because the divorce decree did not provide for alimony and child support, the separate alimony and child support consent judgment on rule granted on the same date is unenforceable. It is true, as pointed out by defendant, that our jurisprudence is well-settled that any judgment awarding alimony or child support obtained as an incident to a suit for separation from bed and board abates and ceases to have effect following a judgment of divorce. See Thornton v. Floyd, 85 So.2d 499 (La.1956); Dubois v. Breaux, 341 So.2d 68 (La.App. 3rd Cir. 1976); Bozarth v. Bo-zarth, 199 So.2d 544 (La.App. 4th Cir. 1967); and Kennedy v. Kennedy, 261 So.2d 657 (La.App. 4th Cir. 1972).

However, it is obvious that the July 22, 1976 consent judgment on rule, setting alimony and child support, was incidental to and rendered in connection with the divorce of the same date. It is clear from the language of Mrs. Vining’s July 16, 1976 Rule for Alimony and Child Support that the rule was filed in expectation that the forthcoming divorce judgment would abate the prior pendente lite support judgment. The July 16, 1976 rule obviously sought post-divorce support, and therefore was an incident to the divorce suit. Further, the record reflects that on July 22, 1976, the alimony/child support judgment was rendered after the divorce decree. At trial of the rule to make past-due support executo-ry, the trial judge stated:

“And for the record in the minutes the judgment of the divorce is entered first and the rule, the consent judgment on the rule is entered in the minute book after the judgment of divorce.
The minute book is here available for inspection.”

We do not interpret our holding in Kennedy, supra, or in any of the other cited cases, to mean that a judgment awarding alimony and child support in a separate judgment incidental to the divorce decree rendered on the same date, but silent on alimony and child support, makes the alimony and child support decree unenforceable.

Finally, we find no merit to the claim that because the alimony and child support judgment was rendered subsequent to the time the divorce decree was rendered (according to the minutes), but on the same day, a separate petition for alimony and support is required. LSA-C.C.P. art. 2592(8) and LSA-C.C.P. art 2594 permit the use of summary proceedings in alimony and support matters. Furthermore, as pointed out above, any request for a separate petition, citation and service has been waived by the appearance in the consent judgment.

Under these circumstances, we conclude that the alimony and child support decree is an incident to the divorce decree, though rendered in separate documents, and is therefore enforceable. Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . LSA-C.C.P. art. 1201 reads as follows:
      “Art. 1201. Citation; waiver Citation and service thereof are essential in all civil actions except summary and executo-ry proceedings. Without them all proceedings are absolutely null.
      The defendant may expressly waive citation and service thereof by any written waiver made part of the record.”

      . Defendant, in brief, erroneously refers to a June 14, 1976 consent judgment, but no judgment was rendered on that date. The petition for divorce was filed on June 14, 1976 and plaintiffs rule for alimony and child support filed on July 16, 1976 makes reference to the June 14, 1976 date. However, the consent judgment on rule, from which the executory judgment was rendered, was dated July 22, 1976.

      . LSA-C.C.P. arts. 2592(8) and 2594 read as follows:
      “Art. 2592. Use of summary proceedings Summary proceedings may be used for trial or disposition of the following matters only:
      (8) The original granting of, subsequent change in, or termination of, child custody, alimony, child support in behalf of minor children, and support between ascendants and descendants; and ...”
      “Art. 2594. Service of process Citation and service thereof are not necessary in a summary proceeding. A copy of the contradictory motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, and of any order of court assigning the date and hour of the trial thereof, shall be served upon the defendant.”


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    DIXIE CAMPERS, INC. v. VESELY COMPANY.
    No. 11258.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Writ Granted Dec. 5, 1980.

      Love, Rigby, Dehan, Love & McDaniel, William G. Nader, Shreveport, for plaintiff-appellant.
    Adams & Reese, Philip A. Franco, New Orleans, for defendant-appellee.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   CHEHARDY, Judge.

Plaintiff, Dixie Campers, Inc. (Dixie), appeals from a summary judgment in favor of defendant, Vesely Company (Vesely), dismissing with prejudice plaintiff’s suit against defendant for alleged breach of contract at plaintiff’s cost.

Dixie entered into a dealership agreement with Vesely on October 8, 1974, by which the defendant appointed the plaintiff its authorized “ * * * Apache dealer for the sale and distribution of Apache camping trailers and parts and accessories marketed by Vesely * * *.” (Emphasis ours.)

Exhibit “A” to Dixie’s dealer agreement, also dated October 8, 1974, contained the following statement:

“In consideration of the active and aggressive promotion of VESELY Products in the following described marketing area, VESELY will not, during the term of the Dealer Agreement, sell Apache products to any other person purchasing for resale who, to VESELY’S knowledge, maintains a place of business for sale of products in such marketing area. “Marketing Area: Jefferson, St. Charles, Plaquemines, St. Bernard, Orleans Parishes.”

During the3 existence of the agreement, Gerald T. Hennings, president of Dixie, stated in a sworn affidavit that it was the understanding of Dixie that the dealership agreement concerned not only Apache Camping Trailers but any and all Apache products. He also averred that Dixie, in fact, marketed and sold the following Apache products during the existence of the contract: Apache Campers, Empire Travel Trailers, Empire Motor Homes, and Apache Mini Homes.

Plaintiff’s petition further alleged that in November of 1977, during the existence of the contract in question, defendant appointed a firm known as Allgood Campers (All-good), located at 3629 Williams Boulevard, Kenner, Jefferson Parish, Louisiana, as its dealer for the sale and distribution of Apache products, in spite of plaintiff’s protests, and that Jefferson Parish was within the marketing area reserved to the plaintiff under its dealership contract.

In addition, plaintiff claimed that in late 1976 Vesely established a dealership for distribution and sale of Apache products in Slidell, Louisiana, said dealership known as Slidell Campers Sales and Service, Inc. (Sli-dell). Dixie also produced advertisements of Apache products placed by Allgood and Slidell in a local newspaper distributed in the parishes covered by Dixie’s contract.

Fred W. Krantz, director of sales of Vesely Company, said in a sworn affidavit the only Apache products sold to Allgood during this period were four Apache Travel Trailers, an item, defendant claimed, not covered under the exclusive dealership contract with Dixie. An attached photo copy of a computer printout which was dated July 31, 1978 and covered the period from August 1, 1977 to July 31, 1978 showed no Apache Camping Trailers sold to Allgood during this period.

Defendant’s copy of Allgood’s dealer application, moreover, made reference to only Apache Travel Trailers and Empire Travel Trailers, without inclusion of Apache Camping Trailers, noting Dixie had an agreement.

Defendant further produced letters of response to dealership inquiries stating that, in regard to Apache Camping Trailers, the territory in question had been previously committed to Dixie.

Plaintiff contends that the trial court erred in sustaining defendant’s motion for summary judgment in view of the fact there clearly existed a material issue of fact in the matter and that defendant was not entitled to judgment as a matter of law.

In Bohm v. CIT Financial Services, Inc., 348 So.2d 132, 134 (La.App. 1st Cir. 1977), writ refused October 7, 1977, the Court held:

“LSA-C.C. art. 1945 provides:
‘Art. 1945. Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:
‘First -That no general or special legislative act can be so construed as to avoid or modify a legal contract previously made;
‘Second -That courts are bound to give-legal effect to all such contracts according to the true intent of all the parties;
‘Third-That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences;
‘Fourth -That it is the common intent of the parties-that is, the intention of all-that is to be sought for; if there was difference in this intent, there was no common consent and, consequently, no contract.’

“If the agreement between the parties is clear and unambiguous, and will not lead to absurd consequences, the intention of the parties must be gathered from the writing itself. It is only where the agreement is unclear, ambiguous or will

lead to absurd consequences that the court should go beyond the written agreement to gather the true intention. * * ”

We are aware of the cases of Berger v. Fireman’s Fund Insurance Company, 305 So.2d 724 (La.App. 4th Cir. 1974), and Vital v. Hous. Auth. of City of New Iberia, 360 So.2d 1182 (La.App. 3d Cir. 1978), wherein the courts have held that summary judgment is often not appropriate to show subjective facts such as motive, intent, malice, good faith or knowledge. However, in the present case we cannot find that ambiguity or absurd consequence from the words of the contract that would require the trial court to go beyond the words of the written agreement in determining the intent of the parties themselves.

The present case, therefore, we find distinguishable from cases such as Hall v. Management Recruiters of New Orleans, Inc., 332 So.2d 509 (La.App. 4th Cir. 1976), wherein this court denied summary judgment, holding that it is rarely an appropriate procedure for determining intention. Hall, supra, however, involved a notation on the back of a check and at issue was whether the payment was offered and accepted as full settlement of all wage-related claims, in spite of the absence of an explicit and detailed contract of compromise. Clearly, the situation in Hall, supra, therefore, is not comparable to the present case, where the trial court had before it a written, unambiguous contract that limited the court’s determination of the parties’ intent.

The court in Crow v. Monsell, 200 So.2d 700 (La.App. 2d Cir. 1967), also addressed itself to the interpretation of written contracts at pages 701-702:

“A cardinal rule for the interpretation of contracts is that courts must seek for and ascertain, if possible, the mutual intention of the parties. LSA-C.C. Art. 1945; Cooley v. Meridian Lumber Co., 195 La. 631, 197 So. 255 (1940); Chicago Mill & Lumber Co. v. Lewis (La.App.) 68 So.2d 913 (2d Cir. 1953-cert, denied). Although language employed in contracts is usually interpreted according to the ordinary and customary meaning of the words used, clauses couched in general terms, which, if taken literally would lead to unreasonable consequences must be construed according to what, under all circumstances, was probably the intention of the parties. Losecco v. Gregory, 108 La. 648, 32 So. 985 (1901); Molero v. California Company (La.App.) 145 So.2d 602 (4th Cir. 1962-cert. denied). Where the words of a contract are susceptible of more than one meaning, courts must give them the interpretation that carries out the object and purpose of the contract. Robbert v. Equitable Life Assur. Soc., 217 La. 325, 46 So.2d 286 (1950). Even where the words used in a contract are fairly explicit, it is the duty of the courts to refrain from construing them in such a manner as to lead to absurd consequences. LSA-C.C. Art. 1945; Texaco, Inc. v. Vermilion Parish School Board, 244 La. 408, 152 So.2d 541 (1963); Bondio v. Joseph Binder, Inc. (La.App.) 24 So.2d 398 (Orl.1946).”

For this court or the trial court to accept the plaintiff’s contention that although his exclusive dealership in a written agreement was limited to only Apache Camping Trailers, the intent of the parties in Exhibit “A” of the contract was to limit the sale of all of Vesely’s products in the marketing area to only Dixie, would, indeed, be construing the words of the contract in such a way as to lead to absurd consequences, and this construction of the contract in question, therefore, would directly contravene the established jurisprudence of our courts.

Reasonableness demands that the words “Apache products” in Exhibit “A” be interpreted to mean only those products listed in the main body of the contract, i. e., Apache Camping Trailers.

Neither can we find merit in plaintiff’s citation of the case of National Safe Corp. v. Benedict and Myrick, Inc., 371 So.2d 792, 795 (La.1979), wherein the court said:

“Article 1901 of the Civil Code requires good faith performance of all agreements. A principle of implied obligations in contracts is also stated in Article 1903 of the Code in these words: ‘The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.’ The effect of equity on implied obligations is expressed in Article 1964 in these terms: ‘Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.’ Insofar as pertinent here, the ‘equity intended by this rule is founded in the Christian principal no’t to do unto others that which we would not wish others should do unto us . . . . ’ La.Civil Code art. 1965.
“From these pronouncements we are reminded that not all obligations arising out of contract need be explicitly stated. Into all contracts, therefore, good faith performance is implied. Furthermore, everything that by equity is considered incidental to the particular contract, or necessary to carry it into effect, is also a part of all agreements. And, as Article 1964 of the Civil Code makes clear, equity will supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from that source.
******
“It is evident from the principles announced in the Code that contracts are to be understood, not only from what is expressed, but also everything that by law, equity or custom is considered as incidental to the particular contract, or necessary to carry it into effect.”

Vesely’s establishment of a dealership in Slidell was not in breach of its contract with Dixie. Slidell is in St. Tammany Parish, an area not covered in Dixie’s exclusive contract. It would be unreasonable to conclude that Vesely agreed to also prevent dealerships in parishes not covered in Dixie’s contract from advertising in those parishes controlled by Dixie or that, since the contract is silent in this regard, that principals of equity would demand this conclusion in interpreting Dixie’s contract. The establishment of the Slidell dealership did not, in any way, prevent Dixie from performing its contract with Vesely.

Vesely’s establishment of the All-good dealership in Jefferson Parish was not in breach of Dixie’s contract since conclusive proof was offered at the trial court level that the only vehicles sold to Allgood were Apache Travel Trailers, an item not sold to Dixie and not listed in its dealership contract. Furthermore, a review of Vesely’s correspondence regarding dealership inquiries and a reading of the Allgood contract itself can only lead to the conclusion that Vesely acted in good faith performance of its contract with Dixie by consistently protecting that dealership’s rights under the agreement. This court feels, as apparently did the trial court, that Vesely firmly established, through copies of correspondence, dealership agreements and sworn affidavit, that it was its intent to limit Dixie to only the sale of Apache Camping Trailers in that company’s marketing area. We agree with the trial court in not accepting Dixie’s contention that its intent was a different one (i. e., that the contract encompassed a11 Apache products).

In accordance with LSA-C.C.P. art. 966, the pleadings, answers to interrogatories, depositions, and admissions of the parties, together with the affidavits, show that in the present case there is no genuine issue as to material fact and that the mover for summary judgment, Vesely Company, is entitled to judgment as a matter of law.

For the reasons assigned the trial court’s judgment is affirmed in all respects.

AFFIRMED.


author: SARTAIN, Judge.

text:
    Michael ROWEN and Marta Rowen v. MEL’S, a Division of Wright Tailors, Inc.
    No. 11260.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Writ Refused Dec. 5, 1980.
    Byron J. Casey, III, New Orleans, for plaintiffs - appellants.
    Bronfin, Heller, Feldman & Steinberg, Fred Bronfin and Bernard H. Berins, New Orleans, for defendant-appellee.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   SARTAIN, Judge.

This is an appeal from a judgment of the district court which denied plaintiffs’ payment for wages due and penalties under R.S. 23:631 and 632. We affirm.

Mr. and Mrs. Rowen were employed by Mel’s Monogram Shop, a division of Wright Tailors, Inc. Mel’s has a policy of permitting its employees to purchase and/or charge merchandise under a special account and at a discounted rate. The rules of the company provide, inter alia, that “all indebtedness must be liquidated before terminating employment by a full deduction from employee’s final check.”

On April 6, 1979, when their employment was terminated, Mr. and Mrs. Rowen were due final weekly wages of $151.80 and $128.38 respectively. On that date Mr. Rowen owed Mel’s $152.21 and Mrs. Rowen owed the account $177.34. When they asked for their final checks they were refused and advised that these sums would be applied to their respective accounts. This litigation followed.

There is some conflict in the testimony as to whether Mr. and Mrs. Rowen had knowledge of the rule that their final weekly checks would be applied to their respective accounts. Mrs. Rowen admitted receiving and receipting for a copy of the company rules but stated that she did not read the rules before receipting for them. Mr. Row-en stated that he was absent from work on the day the rules were handed out and that his wife signed for him. There is other evidence that the rules were well known to and discussed by all of the employees. We find that the plaintiffs had knowledge of the provisions for payment.

Plaintiffs’ first contention is that the rule requiring application of the last pay check to the charge account is in contravention of the special provision of the statute which requires payment for wages due within three days of termination of one’s employment. They cite as authority the cases of Hendrix v. Delta Air Lines, Inc., 234 So.2d 93 (La.App. 4th Cir. 1970); Duhon v. Prof Erny’s Music Co., Inc., 328 So.2d 788 (La.App. 3rd Cir. 1976); and Soday v. Mall Snacks, Inc., 374 So.2d 138 (La.App. 1st Cir. 1979).

The cited authorities stand for the well-established rule that company policy cannot impose an adverse effect on the requirement for prompt payment of earned wages upon termination of employment. However, the facts in each of these cases are distinguishable from those in the instant case. The cited cases involved issues where the employers sought to delay payment based on a company rule that required an employee to wait seven to ten days (Hendrix), to sign a “Removal from Payroll” form (Duhon), or required one week’s notice before termination (Soday). In the case before us the question is, may an employer offset to the extent of an amount equal to one week’s wages, the amount it is owed by an employee from that employee’s final wages?

C.C. arts. 2207, 2208, and 2209 provide in essence that compensation takes place between two persons who are mutually indebted to the other whereby the debts are extinguished, provided that the debts are “equally liquidated and demandable.”

On the question of whether the respective obligations, i. e. the duty of the employer to pay final wages and the contractual obligation of the employee to liquidate his account out of final wages, meet the requirements for compensation under the articles of the Civil Code, we find they do. The sums involved here are for fixed amounts, known to both parties, and are equally demandable.

Plaintiffs argues that R.S. 23:631 and 632 are special statutes dealing with a particular subject and therefore supersede the general articles of the Code pertaining to the extinguishment of debts by compensation. Accordingly, plaintiffs submit that defendant as any other creditor should “have proceeded via collection proceedings” and that they were entitled to their wages under the statute. We disagree. Under the particular facts of this case we find nothing repugnant in the requirement of the instant employer for an employee to satisfy his account out of his last week’s wages, particularly where the employee has knowledge of the requirement and enjoys the advantages of special discounts.

For these reasons the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.

      . The discount is 15% on cash purchases and 10% on credit sales.


author: GARRISON, Judge.

text:
    Randy SALEZ v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 11267.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Ronald S. Ruiz, New Orleans, for plaintiff-appellant.
    Floyd F. Greene, New Orleans, for defendant appellee.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, finding in favor of defendant and dismissing the plaintiff’s and interve-nor’s claims. On September 3, 1975, Randy Salez filed this action, seeking damages in the amount of $30,000.00, for injuries sustained by him on September 3, 1974, when he allegedly was hit by a bus owned by the defendant and driven by defendant’s employee. On February 18, 1976, Kathleen Hernandez Salez intervened, seeking to recover a community property interest in any judgment rendered in plaintiff’s behalf.

After a full trial on the merits, the district court issued the following reasons for judgment:

“The issue presented in this suit is, did the Plaintiff sustain an accident with the New Orleans Public Service, Inc., bus on or about September 3, 1974?
This Court concludes from all of the credible evidence that the Plaintiff Randy Salez did not sustain an accident with the Defendant bus as it passed him on Tulane Avenue.
The Court evaluated the testimony, behavior and demeanor of the Plaintiff and his witness as well as his medical record and the testimony of the defense witnesses and concludes that the Plaintiff was not struck by the passing bus. Although, he did receive some injuries, the Court feels that these injuries were not serious nor caused by the accident upon which this suit is based.”

This court’s independent review of the evidence and testimony presented convinces us that the trial judge was not manifestly erroneous in his factual determination that the accident complained of had never occurred. We will, therefore, uphold the trial judge’s determination of the credibility of the witnesses. Arceneaux v. Domingue, 365 So.2d 1330 (La.App.1978).

For the reasons discussed, the judgment of the trial court is affirmed. Costs to be borne by appellant.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Henry G. DUCHMANN, Jr. et al. v. ALLSTATE INSURANCE COMPANY et al.
    No. 11268.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Andry & Andry, Jerald N. Andry, Gilbert V. Andry, III and Leonce J. Malus, III, New Orleans, for plaintiffs-appellees.
    W. Monroe Stephenson, New Orleans, Montgomery, Barnett, Brown & Read, Edward A. Rodrigue, Jr., Alexander N. Breckenridge, New Orleans, for plaintiffs-appellants.
    Murphy & Simon, James S. Rees, III, James Colomb, New Orleans, for defendants-appellees-appellants, Allstate Ins. Co. and Dorothy Famulara.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

In this intersectional automobile accident case the primary issue is the question of the concurrent or contributory negligence of the driver of the automobile traveling on the favored boulevard street. Quantum also is at issue.

On March 24, 1976 at approximately 7:40 a. m., Pamela Duchmann was a passenger in an automobile driven by Kathleen Zam-mit in a westerly direction on St. Claude Avenue (toward Canal Street). St. Claude Avenue is a neutral-ground street with two moving traffic lanes and one parking lane on each side. Dorothy Famulara, the defendant, was driving her automobile on St. Ferdinand Street in a southerly direction (toward the river). When she reached the intersection of St. Claude Avenue she stopped her car, looked for approaching traffic, and attempted to cross St. Claude. St. Ferdinand Street is a two-way street on the north side of St. Claude Avenue. No stop signs or signal lights control this intersection.

As the Famulara automobile was attempting to cross the Canal Street-bound traffic lanes of St. Claude, the front of the Zammit automobile struck the left-front of the Famulara vehicle. This suit by the Duchmanns and the Zammits followed.

A jury verdict was rendered against Dorothy Famulara and her liability insurer, Allstate Insurance Company, in favor of Pamela Duchmann in the sum of $1,000.00 in general damages and in favor of her husband, Henry Duchmann, in the sum of $566.69 in special damages. Based on a finding by the jury of negligence on the part of Kathleen Zammit, Zammit’s suit and that of her husband against Famulara and her insurer, Allstate, was dismissed. Judgment was further rendered in favor of Famulara and Allstate on their third-party demand against Michael and Kathleen Zam-mit for one-half of the amount of the judgment for which the third-party plaintiffs were cast.

The Zammits, appealing, claim the jury manifestly erred in its finding of negligence on the part of Mrs. Zammit. The appeal filed by Famulara and Allstate Insurance Company complains of the excessiveness of the awards in favor of the Duchmanns. In answer to the appeals, the Duchmanns, complain of the inadequacy of the award made to them.

CONCURRENT OR CONTRIBUTORY NEGLIGENCE OF KATHLEEN ZAMMIT

According to Mrs. Zammit, as she approached the intersection of St. Claude Avenue and St. Ferdinand Street, she saw the Famulara automobile stopped on St. Ferdinand Street, but did not take her eyes off the Famulara automobile. She was about a car-length away from the defendant automobile when she first noticed Mrs. Famu-lara pulling into the intersection, and she applied her brakes but unavoidably struck defendant’s vehicle. Mrs. Zammit further testified that at the time she saw the Fam-ulara vehicle stop in the intersection, it was about one-and-one-half car lengths away. She added, “I didn’t actually see her start. I saw her when she got right in front of my car.”

Pamela Duchmann’s testimony added little, if any, to that of Mrs. Zammit. She did testify, however, that she saw the Famu-lara automobile stop at the intersection and “. . . then the next thing I knew she was in front of us and then we collided.” She explained that she had been reading a magazine, looked up to see the stopped Famu-lara automobile, glanced down again to read the magazine, and the accident occurred.

Mrs. Famulara testified that after stopping at the corner, seeing no traffic on St. Claude Avenue, she proceeded into the westbound traffic lane of St. Claude, where the accident occurred. She stated that the accident occurred in the neutral ground lane of St. Claude. When asked if the Zammit vehicle was speeding, she testified, “I don’t think so. I really couldn’t say. Like I say, because I really didn’t see her.” According to Mrs. Zammit, she was traveling at the 35 mph speed limit. Finally, Mrs. Famulara testified that she recognized that St. Claude Avenue was the favored street.

Well-established is the rule that a motorist on a favored street has the right to assume that any driver approaching the intersection on a less-favored street will yield the right-of-way. This right-of-way driver can indulge in this assumption until he sees, or should have seen, the other car has not yielded. Audubon Insurance Company v. Knoten, 325 So.2d 624 (La.App. 4th Cir. 1976). Furthermore, a driver who stops at a stop sign has discharged only part of that duty which is required of him. He may not proceed until he has made certain that it is safe for him to do so. Continental Insurance Company v. Duthu, 235 So.2d 182 (La. App. 4th Cir. 1970). See also, Clements v. Allstate Ins. Co., 383 So.2d 1375 (La.App. 4th Cir. 1980); Otillio v. Dolese, 236 So.2d 646 (La.App. 4th Cir. 1970).

Famulara’s negligence is not in contest. Applying the jurisprudence to the evidence and assuming the jury construed that evidence most favorably to Famulara, we are led to conclude that the jury erred as a matter of law when it found the violation of a duty on the part of Mrs. Zammit. When this plaintiff, Zammit, saw the Fam-ulara automobile stopped in obedience to the right-of-way street, Mrs. Zammit had a right to assume that she would remain stopped and yield to traffic traveling on the right-of-way street. When the Famulara automobile came into the path of the Zam-mit vehicle, Zammit was unable to avoid the accident. Under these circumstances we cannot conclude that Zammit was either concurrently or contributorily negligent. Accordingly, Kathleen and Michael Zammit are entitled to recover against Famulara and her liability insurer. Therefore, it necessarily follows that the third-party demand of Famulara and Allstate Insurance Company against the Zammits must be dismissed.

QUANTUM

PAMELA AND HENRY DUCHMANN

Mrs. Duchmann was seen by Dr. W. H. Newman, an orthopedic surgeon, on March 26, 1976. Her complaints at that time were of stiffness in her neck, pain in her right calf, and headaches. No muscle spasms were discerned, and her injuries were diagnosed as a sprained neck involving a tear of the ligaments to the cervical vertebrae. She was placed on muscle relaxants and a cervical collar was prescribed. Dr. Newman anticipated that Mrs. Duch-mann would have difficulty for approximately six weeks.

On March 31, 1976 plaintiff was seen by Dr. Emile A. Bertucci. He discerned stiffness in the cervical area with practically no range of motion. He found further tenderness and muscle spasm over the neck muscles and the muscles between the neck and shoulder. Examination revealed pain radiating down the entire back, although there was no tenderness over the lumbosacral junction. Muscle relaxants and a pain killer were prescribed. Dr. Bertucci’s diagnosis was a strain of both sternocleidomastoid and paravertebral muscles. He found also a strain of the uppermost portion of the trapezius muscles between the neck and shoulder. Physical therapy treatment in the form of diathermy was administered to the cervical area. Between March 31, 1976 and discharge on May 26, 1976, Mrs. Duch-mann was seen by Dr. Bertucci on ten occasions. She received twenty-one physical therapy treatments during this period. Mrs. Duchmann’s injury was classified by Dr. Bertucci as moderately severe. On the date of discharge, according to Dr. Bertucci, Mrs. Duchmann was asymptomatic.

Considering the injury, pain and suffering, as well as treatment prescribed, we deem the $1,000.00 general damage award somewhat on the low side. Nevertheless, we cannot say it is inadequate and constitutes an abuse of the jury’s discretion. Accordingly, we affirm this award in favor of Mrs. Duchmann.

KATHLEEN AND MICHAEL ZAMMIT

Kathleen Zammit was seen by Dr. Newman on March 25, 1978. Her complaints were primarily a pain in the lumbar area. The diagnosis was a sprain in the lumbosacral joint, and hot baths and exercise were prescribed. The injury was described by Dr. Newman, as a “mild back sprain.” He found no muscle spasm and his diagnosis was based primarily on the subjective complaints of Mrs. Zammit.

On March 31, 1976 she saw Dr. Bertucci. Her complaints again were pain in the low-back area. Upon motion of the low back, muscle spasms were noted. Dr. Bertucci’s diagnosis was acute lumbosacral strain. An anti-inflammatory agent, a muscle relaxant and pain killer were prescribed. This plaintiff received twenty-three physical therapy treatments between the time of her initial visit and her discharge on May 26,1976. It was Dr. Bertucci’s opinion that Mrs. Zam-mit sustained a “moderate strain” of the low back area. Dr. Bertucci’s records indicated that as late as May 5, 1976 Mrs. Zammit was suffering with spasms and pain. Mrs. Zammit described her injury as very painful and complained of sleepless nights on approximately four or five occasions. She further testified that up to the time of the trial she continued to experience pain in the lower back.

The nature and extent of the injury and suffering sustained by Mrs. Zammit warrants an award of $1,000.00

Medical expenses incurred by the Zam-mits included Dr. Bertucci’s bill in the sum of $395.00 and a stipulated bill from Dr. Newman in the sum of $77.00, together with $36.00 in lost wages which is not contested. Accordingly, the Zammits are entitled to recover special damages in the amount of $508.00.

Although Michael Zammit claims entitlement to the $100.00 deductible which he paid for automobile damage under his personal liability automobile insurance policy, in the answer filed by Kathleen and Michael Zammit to the third-party demand of Famulara and Allstate Insurance Company, these plaintiffs acknowledge in paragraph 3 that they had been paid in full by the third-party plaintiff for all property damage suffered by them. Under the circumstances, these plaintiffs are not entitled to reimbursement for the automobile deductible amount.

DECREE

Having so concluded, we affirm in part, reverse in part, and recast the judgment of the trial court as follows:

That part of the judgment in favor of Pamela Duchmann and against Allstate Insurance Company and Dorothy S. Famu-lara, in the sum of $1,000.00, with interest from date of judicial demand, is affirmed. That part of the judgment in favor of Henry G. Duchmann, and against Allstate Insurance Company and Dorothy S. Famu-lara, in solido, in the sum of $566.69, with interest from date of judicial demand, is affirmed. That part of the judgment dismissing Kathleen and Michael Zammit’s suit against Allstate Insurance Company and Dorothy S. Famulara is reversed and set aside. That part of the judgment in favor of third-party plaintiffs Allstate Insurance Company and Dorothy S. Famulara and against third-party defendants Michael Zammit and Kathleen Torres Zammit for one-half of the amount of the judgment for which the third-party plaintiffs have been cast is reversed and set aside.

It is further ordered, adjudged and decreed that judgment be rendered in favor of Kathleen Torres Zammit and against Allstate Insurance Company and Dorothy S. Famulara, in solido, in the sum of $1,000.00 together with interest from date of judicial demand, and further that there be judgment in favor of Michael Zammit and against Allstate Insurance Company and Dorothy S. Famulara, in solido in the sum of $508.00, with interest from date of judicial demand. Costs to be paid by Allstate Insurance Company and Dorothy Famulara.

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


author: BOUTALL, Judge.

text:
    Belinda SMITH and James Brandon Smith, appearing through Belinda Smith, his provisional Tutrix v. WINN DIXIE STORES OF LOUISIANA, INC.
    No. 11269.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980
    Robert E. Peyton, Christovish & Kearney, New Orleans, on behalf of Winn Dixie of Louisiana, Inc., defendant-appellee.
    Larry Preston Williams, New Orleans, on behalf of plaintiffs-appellants.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

This appeal arises from a slip and fall sustained by the plaintiffs, Belinda Smith and her son James Smith, while entering the Winn-Dixie grocery store located at 2841 S. Claiborne Ave. in New Orleans. The plaintiffs brought an action against Winn-Dixie Stores of Louisiana as owner of the store wherein the accident occurred. Upon trial of the matter, the district court entered judgment in favor of the defendant and against the plaintiffs dismissing the suit at their cost. From this adverse judgment the plaintiffs appeal.

On August 30, 1977, at approximately 2:00 P.M., the plaintiff, Belinda Smith, while carrying her baby son James, approached the entrance to the grocery store owned by the defendant. After taking her initial step inside the entrance to the defendant’s store, the plaintiff, Ms. Smith, slipped and fell onto the tile floor, thereby suffering injury to herself and to her son. Though it was not raining at the time of the accident, it had been doing so shortly before the accident and intermittently earlier in the day. Testimony by the plaintiff, Ms. Smith, reveals that the floor upon which she fell had a “slight puddle” of water. Plaintiff further testified that she was wearing rubber thongs at the time of the accident, that is, open faced rubber shoes wherein the shoe fits between the first and second metatarsals.

The jurisprudence reflects the view that upon proof that a foreign substance was on the floor at the time the plaintiff entered the store; that the plaintiff stepped on this foreign substance; and that it caused her to slip, fall, and suffer injury, the burden shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent. The defendant, as store owner, can carry its burden by establishing that it was free from fault and that it exercised reasonable care in protecting its customers from foreign substances on the floor. Reasonable care is exercised when the store owner takes reasonable protective measures, including periodic inspections, in order to keep the floors and aisles free of substances or objects that may cause customers to fall. If the evidence presented is sufficient to establish that the store owner has carried its burden, then the presumption of negligence will be rebutted and the defendant will be exonerated from liability. Kavlich v. Kramer, 315 So.2d 282, (La.1975); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Hanzo v. Travelers Ins. Co., 357 So.2d 1346 (4th Cir. 1978); Hyman v. National Super Markets, Inc., 353 So.2d 347 (4th Cir. 1977); Green v. Schwegmann Bros. Giant Supermarkets, Inc., 325 So.2d 621 (4th Cir. 1976). One other rule which must be considered here is that the storeowner is not the insurer of the safety of its customers and further that it does not have to keep its entranceways, aisles and passageways in perfect condition. Lott v. Winn-Dixie Louisiana, Inc. (4th Cir. 1973); Rozelle v. Employer’s Liability Assurance Corp. 260 So.2d 757 (2d Cir. 1972).

We conclude that the plaintiffs have carried their burden in establishing a presumption of negligence on the part of the defendant storeowner. This finding is based on proof by the plaintiffs that a foreign substance in the form of water was on the floor of the entrance of the defendant’s grocery store; that the plaintiff, Ms. Smith, stepped on this water and that this caused her to slip, fall and injure not only herself but also her child. The burden having shifted to the defendant to exculpate itself from the presumption of negligence, we must now consider whether it has carried this burden. We conclude that the defendant has done so by establishing that it was free from fault and that it exercised reasonable care in protecting its customers from foreign substances on the floor. The evidence discloses that on rainy days, such as the one on which the accident in this case occurred, the front of the store was periodically mopped so as to prevent slip and fall injuries. In fact a special mop and bucket was placed in the front of the store close to the entrance for this purpose. Furthermore, the cashiers, bag boys, office girls and the assistant manager in the front of the store are all instructed to check the entrance for water on rainy days. Testimony by the plaintiff reveals that this maintenance policy was in effect on this rainy day as the amount of water on the floor upon which the plaintiffs fell was only a “slight puddle”. Moreover, the small amount of water on the floor was probably caused by other customers tracking it in from outside the store. We hold that the storeowner defendant, having carried its burden of rebutting the presumption of negligence, is exonerated from liability.

Our findings, based on the facts before us, coincide with those in Berglund v. F. W. Woolworth, 236 So.2d 266 (4th Cir. 1970) and in Lott v. Winn-Dixie Louisiana, Inc., 280 So.2d 659 (4th Cir. 1973). In Berglund v. F. W. Woolworth, supra, the plaintiff, on a rainy day, slipped and fell inside the entrance of the defendant’s department store. The undisputed facts reveal that the store entrance was wet from the tracking in of water and the dripping of umbrellas. In finding that the defendant was not liable, the court made the following statement:

“There is no evidence that there was an abnormal accumulation of water or foreign substance on the floor, but only such as might reasonably be expected to have been tracked in by customers on a rainy day. There was testimony by defendant’s porters that, among other duties, they mopped the surplus water from the floor near the entrances several times that day, but we are not convinced that they did so with any regularity. There is no convincing evidence, that the entrance in question was mopped at any certain time prior to Mrs. Berglund’s accident, but the condition of the floor as described by Mrs. Berglund and her companion was not such as to indicate a neglect on the part of defendant’s porters in not having mopped it more frequently.”, (at p. 269)

In Lott v. Winn-Dixie Louisiana, Inc., supra, the plaintiff, on a rainy day, sustained injury when he slipped and fell inside the entrance to the defendant’s grocery store. The evidence disclosed that there was very little water on the floor immediately after the accident. In upholding the trial court’s finding that the defendant was not liable, the court stated:

“It can be reasonably anticipated that on a rainy day people will track water into a public place. We must also remember that the accident in question took place on a Saturday and the testimony indicates that the store was quite busy. Any one person may track in enough water or dirt to cause the next person to slip, dependent upon the condition of the floor surface. There is no showing here that the floor surface was unduly slick or smooth such that any wetness whatever would cause patrons to slip. Upon such a showing even continuous mopping may conceivably be insufficient care. In the absence of such a showing we cannot say reasonable care was not taken.”

For the above reasons we affirm the judgment of the trial court.

AFFIRMED.


text:
    Mrs. Melba Acquistapace, wife of/and Harry E. LINDSEY, Sr. v. SEARS, ROEBUCK AND CO.
    No. 11277.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.

      Roccaforte & Rousselle, Leo W. Rousselle, New Orleans, for plaintiffs-appellees.
    Chaffe, McCall, Phillips, Toler & Sarpy, James A. Babst, James J. Gillespie, New Orleans, for defendant-appellant.
    Before SAMUELS, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

Defendant appeals from a $500.00 award in favor of plaintiffs arising out of the detention of Mrs. Melba Lindsey on March 9, 1977, by store detectives when an electronic alarm was triggered by a tag on merchandise purchased and paid for by plaintiff, from which the sales person neglected to remove the tag.

In answer to the appeal plaintiffs seek an increase in the amount of the award.

Relying on Louisiana Code of Criminal Procedure Art. 215(B), defendant contends that notices were posted to advise that the electronic shoplifting device was being utilized in the store and that the signal from the device, under these circumstances, constituted “a sufficient basis for reasonable cause” to detain plaintiff. According to defendant, because of the existence of “reasonable cause” and because the time of detention did not exceed five or ten minutes, well within the “sixty-minute” time permitted under LSA-C.Cr.P. art. 215(A), plaintiffs are not entitled to recover. Defendants further claim that because Mrs. Lindsey failed to observe and heed the posted notices and because she contributed to the sales clerk’s confusion by exchanging the original items for same-priced articles of different size after the sale had been run through the register, plaintiffs’ recovery is barred by contributory negligence.

Relying on Firstley v. Bill Watson Ford, Inc., 268 So.2d 314 (La.App. 4th Cir.1972), plaintiffs contend that the neglect of the sales clerk in failing to remove the tag triggered the electronic device, resulting in Mrs. Lindsey’s unlawful detention. See also, Jones v. Simonson, 292 So.2d 251 (La.App. 4th Cir.1974).

In Clark v. I.H. Rubenstein, Inc., 326 So.2d 497 (La.1976), recovery was permitted for embarrassment and detention caused by the sales clerk’s failure to remove the tag from the merchandise sounding the alarm, resulting in Clark’s detention. Defendant points out, however, that following the result reached by the Clark court in February 1976, the Louisiana Legislature, in the next legislative session, adopted Art. 215(B) of the Code of Criminal Procedure which provided that when notice is posted, reasonable cause to detain exists when the electronic device is triggered.

It is clear that the responsibility for the removal of the tags from the merchandise rests with the sales clerk. There exists some evidence in the record that different sized shirts were exchanged by plaintiff during the time the purchase was being made and the price paid. Nonetheless, it was the sales clerk’s failure to remove the tag on the merchandise, which had been purchased, that triggered the electronic device. Despite this fact, it is clear, from a reading of the statute, that the legislature intended to afford to the merchant a right, within statutory limitations, to detain a person when the electronic device has been triggered.

The more troublesome question, therefore, is not whether “reasonable cause” exists, but whether the method and extent of plaintiff’s detention was reasonable under the circumstances of this case. In this connection, Melba Lindsey testified that she had purchased two shirts, and after she had descended the escalator and was going out of the side-door of the store at Baronne and Common, a detective gently placed his hand on her arm indicating it would be necessary for her to be taken to another store detective. She stated that she indicated to him that he was making a mistake; however, they went back into the store and the other detective took the package from her hand and emptied the contents on a counter. According to Mrs. Lindsey, during this time she was embarrassed because other customers in the store were looking at her. After the receipt was found in the bag, one of the detectives removed the plastic tag from the merchandise and walked away. Plaintiff stated that instead of the detectives taking her into a private room to conduct the inspection they emptied the contents in the presence of other customers and made a “spectacle” of her, causing humiliation and embarrassment resulting in nervousness, anxiety and vomiting.

According to the sales clerk, plaintiff returned with the security people, and at that time the clerk “apologized for the mistake”, although she was of the opinion that Mrs. Lindsey had contributed to the error. According to this witness, only five or ten minutes had elapsed between- the time plaintiff walked away from her after the purchase and she returned with the store detective.

The security manager at Sears testified concerning the operation of the system, but added little or nothing regarding the incident. He explained that one of the store detectives who detained plaintiff was not employed by Sears any longer.

Although it would have been advisable, perhaps, to ask plaintiff to produce the receipt for the purchase immediately after the device was triggered, or to escort her to the privacy of an area unobserved by other customers, we cannot say the manner in which Mrs. Lindsey was detained or the extent of her detention was unreasonable. Under the circumstances, plaintiffs are not entitled to recover.

Our determination is not based upon a manifestly erroneous factual conclusion of the trial judge, but is based upon the application of the amended statute to substantially unconflicting facts. Accordingly, the judgment in favor of plaintiffs is reversed and set aside and their suit is dismissed at their cost.

REVERSED AND RENDERED.

      . La.Code of Criminal Procedure Art. 215, sub-paragraph (B), reads as follows:
      “B. If a merchant utilizes electronic devices which are designed to detect the unauthorized removal of marked merchandise from the store, and if sufficient notice has been posted to advise the patrons that such a device is being utilized, a signal from the device to the merchant or his employee indicating the removal of specially marked merchandise shall constitute a sufficient basis for reasonable cause to detain the person.”

      . La.Code of Criminal Procedure art. 215(A) reads as follows:
      “A. A peace officer, merchant, or a specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.
      A peace officer may, without a warrant, arrest a person when he has reasonable grounds to believe the person has committed a theft of goods held for sale by a merchant, regardless of the actual value of the goods. A complaint made to a peace officer by a merchant or a merchant’s employee shall constitute reasonable cause for the officer making the arrest.”

      .According to both plaintiff and the sales clerk, Mrs. Lindsey had purchased two shirts of the same size. After the price had been placed on the register, Mrs. Lindsey then exchanged one of the two shirts for a different size. The purchase price of the different-sized shirt was the same. In the exchange between the time the price had been rung up on the machine and payment was made to the clerk, the clerk neglected to remove the plastic tag on the exchanged shirt.

      . This amendment became effective October 1, 1976 by the adoption of Act 339 of the Regular Session of the Louisiana Legislature of 1976.


author: SAMUEL, Judge.

text:
    David S. BORDELON v. DEPARTMENT OF POLICE.
    No. 11281.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Bach & Wasserman, Sidney M. Bach and Gerald Wasserman, New Orleans, for plaintiff appellant.
    Salvador Anzelmo, City Atty., Marc G. Shachat, Asst. City Atty., and Michael A. Starks, Deputy City Atty., New Orleans, for defendant-appellee.

      Before SAMUEL, GULOTTA and BOU-TALL, JJ.

       Bach & Wasserman, New Orleans, filed a brief on behalf of appellant, Bordelon, on February 20, 1980. The matter was set by the court and submitted, on briefs only, on September 8, 1980. However, on April 3, 1980 Bach & Was-serman withdrew as counsel of record for appellant.

   SAMUEL, Judge.

Plaintiff was dismissed from his position of Probationary Police Sergeant and reinstated to his former position of Police Officer. He appealed to the Civil Service Commission of the City of New Orleans contending there was no justifiable cause for that action. On the basis of his probationary status, the appointing authority filed an exception contesting his right to appeal to the Commission. The Commission maintained the exception and dismissed the appeal. Plaintiff then appealed to this court.

Plaintiff, who held permanent civil service status as a Police Officer, was promoted to the rank of Sergeant on July 16, 1978. This required that he serve a one year probationary period prior to the promotion becoming permanent. He was demoted to his former, permanent position of Police Officer on June 1, 1979, within that one year probationary period. The specific reasons for the demotion were given to him by letter of May 31, 1979 from the Superintendent of Police and he was given an opportunity to explain his alleged actions. The letter lists untruthfulness, habitual tardiness, arrival for duty 40 minutes late on one occasion, reporting for duty in civilian attire and, on one occasion, absence without leave from his place of assignment from 5:05 p. m. until conclusion of his tour of duty at 10 p. m. Such alleged misconduct violates Articles 29, 63 and 65 of the Rules for the Administration of the Department of Police and Rule IX, Section 1, Paragraph 1.1 of the Civil Service Commission of the City of New Orleans.

The primary issue before us is whether an employee who has gained permanent status in the service, but who is probationary in a promotional capacity, may appeal a disciplinary action related solely to that promotional capacity where there is no allegation of the discrimination set out in Article 10, Section 8(B) of the 1974 Constitution, and where the disciplinary action does not affect the employee’s previously obtained permanent status.

The answer is in the negative. Under these circumstances the decision to dismiss from the promotional capacity is solely within the authority of the appointing authority; that is the very purpose of the probational or working test period; and neither the Commission nor the courts have the authority to inquire into the reason or justification of such a dismissal; our jurisprudence consistently has been that an employee has no right of appeal under these circumstances. In Martin v. Sewerage & Water Bd., we said:

“In our view, the internal decision to return Martin to his pre-December, 1974 position as Mechanical Engineer III is not, in the context of these appeals, properly before us for review since the rules of the Civil Service Commission set out a basis for the taking of this action which is not reviewable either by the Civil Service Commission or the Civil District Court or this court.
The action taken by the Board was within the time limit provided for by the rules and did nothing more and nothing less than return Martin to his previous position as Mechanical Engineer III within the chronological perimeters which the rules provide for.
Stated another way, Martin was not demoted from Mechanical Engineer IV to Mechanical Engineer III. He was only conditionally promoted from Mechanical Engineer III to Mechanical Engineer IV. Within the probationary period of his conditional promotion, his superiors deemed that his performance did not demonstrate a basis for making the promotion permanent, and, so, during this probationary period, he was, accordingly, returned to his status as Mechanical Engineer III.
While men of good will might differ as to the substantive basis for reaching such a decision, such consideration is outside the ambit of jurisdiction of the Civil Service Commission, the Civil District Court and this court and is solely an internal matter within the Sewerage & Water Board when reached during the probationary period. The New Orleans Home Rule Charter grants authority to the Civil Service Commission to adopt rules governing promotion, and those rules, duly promulgated, include the specific right of the appointing authority to unilaterally revoke such promotion during the probationary period.
Since the action by the Board was taken during the probationary time period when its decision regarding same is, then and there, a final decision, there was never any jurisdiction for review of the Board’s action in either the Civil Service Commission, the Civil District Court or this court. The fact, conceded by all, that Martin was, at all times pertinent, a permanent employee of the Board is of no consequence. His designation as a permanent employee cannot be said to entitle him to permanent designation as Mechanical Engineer IV in derogation of the requirement that he serve in the promoted slot for a probationary period before the promotion becomes permanent.”

In the instant case plaintiff did not mention discrimination in his petition of appeal or otherwise until (possibly) the argument before the Commission on the defendant’s exception. Nor, since plaintiff was restored to his permanent status, did the appointing authority’s action affect his permanent status. We agree that plaintiff had no right to appeal either to the Commission or to the courts.

There is one other issue. In effect, plaintiff argues that procedures before the Commission should be as liberal as they are before the courts and points to Code of Civil Procedure Article 934 which provides that when the grounds of the objection pleaded by the peremptory exception may be removed by amendment a judgment maintaining the exception shall order such amendment within an allowed delay. Thus, plaintiff contends he should have been permitted to amend for the purpose of showing political discrimination. While we do not disagree with the argument as it relates solely to liberality of procedure, we do not agree with this contention.

Rule II, Section 4.1(c) of the Rules of the Civil Service Commission of the City of New Orleans reads:

“(c) A classified employee discriminated against because of his political or religious beliefs, sex or race shall file a written statement with the Civil Service Commission containing the following information:
1. The name or names of the person or persons alleged to have committed the discriminatory act or acts.
2. The date or dates of such act or acts.
3. Where and in what manner such act or acts occurred.
4. The nature of the alleged discrimination.
5. A complainant’s statement shall be filed with the City Civil Service Commission within thirty days of the alleged discriminatory act or acts or the last occurrence of a discriminatory act.”

In the instant case the appointing authority action complained of was taken on May 31, 1979 and became effective June 1, 1979. Plaintiff filed his petition of appeal to the Commission on June 19, 1979 and, as we have said, there was no mention of discrimination in that petition of appeal or otherwise until (possibly) the argument before the Commission on the defendant’s exception. The argument took place on August 9, 1979, more than 30 days after the June 1, 1979 occurrence of the incident complained of, and the Commission ruling was handed down October 11, 1979, more than four months after that occurrence. To allow plaintiff to amend at that time so as to allege political discrimination would violate sub part 5 of the above quoted Commission rule and, accordingly, the grounds of the objection here pleaded by the exception could not have been removed by amendment.

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

AFFIRMED.

      . In pertinent part the section provides that no classified employee shall be discriminated against because of his political or religious beliefs, sex or race and gives a classified employee so discriminated against the right to appeal to the appropriate commission.

      . Martin v. Sewerage & Water Bd., La.App., 342 So.2d 1229; Courtney v. Louisiana Department of Highways, La.App., 282 So.2d 721; Pembrick v. Charity Hospital of La. at New Orleans, La.App., 268 So.2d 265; Maggio v. Department of Public Safety, La.App., 234 So.2d 844.

        .Supra, note 2, at page 1230.

      . The record contains plaintiff’s written opposition to defendant’s exception. That opposition makes no mention of a claim of discrimination. Mention of such a claim could have been made during oral argument.

      . We note Code of Civil Procedure Article 934 states that where the objection may be removed by amendment the judgment sustaining the exception shall order the amendment.

      . Code of Civil Procedure Article 934 further states that if the grounds of the objection cannot be removed by amendment, the action shall be dismissed.


author: BARRY, Judge.

text:
    Anthony GENUSA, Jr., on behalf of his minor son, Anthony Genusa, III v. HOLY CROSS COLLEGE, INC.
    No. 11284.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Bach & Wasserman, New Orleans, for plaintiff- appellee.
    Talley, Anthony, Hughes & Knight, Charles M. Hughes, and R. Bradley Lewis, Bogalusa, for defendant-appellant.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   BARRY, Judge.

Anthony Genusa III was in his junior year at Holy Cross High School during the 1978-79 school term and a member of its wrestling team in his sophomore and junior years. In January, 1979 Genusa was suspended from Holy Cross for disciplinary reasons unrelated to athletics.

Genusa transferred to East Jefferson High to complete his junior year with the intention of returning to Holy Cross to complete his senior year and graduate with his classmates in May, 1980. Genusa was readmitted to Holy Cross in September, 1979 but denied participation on the wrestling team pursuant to a letter from the Commissioner of the Louisiana High School Athletic Association (LHSAA). Genusa’s ineligibility resulted from a provision in the bylaws of the LHSAA known as the “transfer rule” which provides:

Art. 1, Sec. 8. Transfer Rule
Rule 1-No student who enrolls in one school and later transfers to, or enrolls in another, shall be eligible to represent the latter school in any athletic contest.

Genusa’s father filed suit on constitutional grounds asking for injunctive relief prohibiting Holy Cross from application of the rule as it pertained to his son. An amended petition was filed joining LHSAA as a co-defendant and asking for a declaratory judgment that the transfer rule constitutes an abridgement of the equal protection guarantees of both our state and federal constitutions.

On November 15, 1979 the District Court found the transfer rule unconstitutional and permanently enjoined Holy Cross and LHSAA from enforcing it.

Plaintiff’s constitutional attack charges that the rule is vague, ambiguous, and constitutes a denial of equal protection of the laws as prohibited by the Louisiana Constitution, Art. 1, Sec. 3, and the United States Constitution, Amendment XIV.

Plaintiff relies heavily on Walsh v. Louisiana High School Athletic Ass’n, 428 F.Supp. 1261 (D.C.1977) which held that the transfer rule was unconstitutional as applied in Orleans Parish. However, this authority has vanished after being overruled by the Fifth Circuit Court of Appeal. Walsh v. Louisiana High Sch. Athletic Ass’n, 616 F.2d 152 (1980). The Fifth Circuit held that the transfer rule did not violate due process or equal protection as administered in Orleans Parish.

The purpose of the transfer rule is prophylactic in nature; without it high schools would be free to recruit athletes with a laissez-faire attitude. It protects the integrity of athletic programs and prevents transgressions by unscrupulous participants. The rule saw light in 1920 and has been applied equally to all LHSAA member schools.

The good intent of the rule is evident. Our concern is the constitutionality of its application to plaintiff’s son. The rule was subject to constitutional attack in Chabert v. Louisiana High School Athletic Ass’n, 323 So.2d 774 (La., 1975) on grounds of denial of equal protection. The Supreme Court cited Parish v. National Collegiate Athletic Association, 506 F.2d 1028 (5th Cir. 1975) which held that equal protection was not violated even though the application of the rule may produce seemingly unreasonable results in certain situations. The Chabert court went on to say that:

“As long as the rule is uniformly applied and not arbitrary, and related rationally to a legitimate governmental interest, that rule cannot be said to violate the guarantee of equal protection of the law. (Cited case omitted) Such is the case with the LHSAA’s transfer* rule.” Chabert, p. 780.

Plaintiff does not and cannot argue that any other student similarly situated was treated differently than his son. We fail to find any violation of the equal protection provisions of our state or federal constitutions.

Plaintiff also alleged unconstitutionality on the basis the transfer rule is vague and ambiguous. Our reading shows the language to be precise, explicit and unconditional; to conclude otherwise would be to ignore the simplistic language.

The trial judge issued copious reasons for judgment and acknowledged his philosophical conflict with Chabert, supra. The lower court judgment flies directly into the core of our highest court’s pronouncement in Chabert. The federal appellate pronouncement in Walsh, supra, magnifies the obvious abuse of discretion by the District Court.

We therefore hold that the trial judge created reversible error in ruling that Art. 1, Sec. 8 of the by-laws of the Louisiana High School Athletic Association, referred to as the “transfer rule,” is unconstitutional. Accordingly, the judgment of the District Court is reversed. Costs attributable to this appeal to be borne by plaintiff-ap-pellee.

REVERSED.


text:
    Ozeme Joseph MITCHELL v. Gary ZERINGUE et al.
    No. 11288.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Daniel E. Becnel, Jr., C. William Bradley, Jr., Barry J. Landry, Reserve, for plaintiff-appellant.
    Cronvich, Wambsgans & Michalczyk, Anthony W. Wambsgans, Metairie, and Dur-rett, Hardin, Hunter, Dameron & Fritchie, Emile C. Rolfs, III, Baton Rouge, for Donald Dillon and A. J. Thibodaux, defendants-appellees.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   CHEHARDY, Judge.

Plaintiff, Ozeme J. Mitchell, appeals a trial court decision dismissing, on the exception of prescription, defendants Donald Dillon and A. J. Thibodaux from plaintiff’s suit for personal injuries, each party to pay his own costs.

Plaintiff originally filed suit against Gary Zeringue, Paul LeBlanc and the St. Charles Sheriff’s Office on August 27,1976, alleging that he received personal injuries as a result of assault, illegal arrest and search, and false imprisonment when he was arrested by Zeringue and LeBlanc on or about February 10, 1976.

On May 18, 1978, plaintiff filed a second amended petition, adding as parties defendant Sergeant Donald Dillon and Detective A. J. Thibodaux, both residents of the Parish of Jefferson, and alleging they were liable jointly, severally, and in solido with the defendants already named in the suit. Plaintiff further alleged that in addition to the actions complained of by the original defendants, Dillon and Thibodaux arrested, handcuffed and assaulted plaintiff.

On March 19, 1979, the district court rendered judgment, which stated in part:

“3. The exception of no cause of action and the motion for summary judgment urged by Gary Zeringue and Paul LeBlanc are dismissed and denied, respectively.
“4. The Plaintiff, Ozeme J. Mitchell, is hereby ordered to amend his petition within twenty (20) days so as to delete any and all reference to alleged acts of assault and battery by the Defendants Gary Zeringue and Paul LeBlanc.”

The judgment also dismissed the St. Charles Parish Sheriff’s Office as a party defendant.

Plaintiff’s fourth amended petition filed on April 3, 1979, amended earlier pleadings, particularly amending Paragraph III of his original petition so that the last sentence of the said paragraph read: “Your petitioner was handcuffed and brutally assaulted by the Defendants Sgt. Donald Dillon and Detective A. J. Thibodaux during his arrest.” He also amended Paragraph I of his first amended petition (which, in turn, had amended Paragraph III of his original petition) so that the last sentence of the said paragraph read: “Your petitioner was handcuffed and brutally assaulted by the Defendants Sgt. Donald Dillon and Detective A. J. Thibodaux during his arrest.”

Paragraph I of plaintiff’s first amended petition, in fact, had originally stated in part that defendants Zeringue and LeBlanc on February 10, 1976, at approximately 6 a. m., maliciously, recklessly and in a willful and wanton manner burst into plaintiff’s residence, arrested, handcuffed and assaulted plaintiff during the incident.

The district court rendered judgment on October 29,1979, maintaining the exception of prescription filed by Dillon and Thibo-daux, and from this judgment plaintiff appeals.

In the case of Fontenot v. O’Brien, 361 So.2d 298, 299 (La.App. 1st Cir. 1978), the court said:

“It is now well established that the filing of suit by plaintiff against the original defendant will interrupt the one year prescriptive period of LSA-C.C. art. 3536 as to those defendants later joined and alleged to be solidarily liable. Wick v. Sellers, 309 So.2d 909 (La.App. 3rd Cir. 1975), application denied 313 So.2d 828 (La.1975).”

In Fontenot, supra, the court reversed and remanded a district court judgment maintaining a peremptory exception of prescription as to two defendants named after the passage of one year since the alleged incident, because the suit against the original defendant had been timely filed. As the court also explained at page 299:

“ * * * We find a connexity between the alleged negligence of the original defendants and the defendant-international, and as pleaded, the original defendants and International must be considered as joint tort-feasors.”

In the present case the trial court judge’s order of March 19,1979, directing the plaintiff to amend his petition and delete all reference to alleged acts of assault and battery by Zeringue and LeBlanc precluded any determination by the court at a trial on the merits that these two defendants could be held liable in solido with Dillon and Thibodaux regarding the alleged acts of assault and battery.

Moreover, a review of the plaintiff’s deposition, part of which was in the record received by this court, indicates that the alleged arrest of the plaintiff was made by Zeringue and LeBlanc, whereas the alleged handcuffing and acts of assault were perpetrated by Dillon and Thibodaux.

In view of the above, we must hold that since there is not that connexity that would allow these four defendants to be held liable in solido in the plaintiff’s cause of action, the timely filing of the plaintiff’s original petition against Zeringue and LeBlanc did not interrupt the running of prescription as to Thibodaux and Dillon. Therefore, the plaintiff’s cause of action as against Thibodaux and Dillon was prescribed prior to their inclusion in the lawsuit.

This court is bound to follow the reasoning expressed in Gibson v. Exxon Corporation, 360 So.2d 230 (La.App. 1st Cir. 1978), and must conclude that since Dillon and Thibodaux could not be held solidarily liable with Zeringue and LeBlanc for the alleged acts of assault and battery, the timely filing of this suit against the original defendants did not interrupt LSA-C.C. art. 3536’s prescriptive period as to Dillon and Thibodaux.

Accordingly, the trial court decision dismissing Donald Dillon and A. J. Thibodaux from the present case on the ground that the plaintiff’s cause of action against these two defendants as prescribed is affirmed in all respects. Plaintiff is to bear all costs of this appeal.

AFFIRMED.


author: GARRISON, Judge. REDMANN, Judge,

text:
    Robert M. MURPHY and Wendell R. Gauthier v. Walden DeLATTE.
    No. 11291.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearing Denied Nov. 17, 1980.
    Gauthier & Murphy, Patrick McCabe & Peter Breslin, Kenner, for plaintiff-appel-lee.
    Anthony S. Taormina, Metairie, for defendant-appellant Walden DeLatte.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting plaintiffs damages in the amount of $750.00, plus legal interest and costs, for injury to their immovable property. In his judgment, the trial judge stated “.. . the Court is of the opinion that defendant Walden DeLatte’s contractor and/or agent was responsible for placing a portion if not all, of the debris on petitioner’s adjacent lot.” Prom that judgment which we affirm, defendant appeals.

In January 1977, plaintiffs purchased four lots, No. 25, 26, 27, and 28 of Square 54 in Harlem subdivision. At the time of purchase, the lots were free of debris. The contiguous property owner, Pascal Culotta, leased his property to Walden DeLatte in April, 1977. DeLatte had the leased property cleared and filled. Additionally, he erected a building on the land. In October of 1977, a large pile of debris appeared on plaintiff’s property. The debris pile includes two Volkswagons, a few trees, and a piece of large tin fencing, as well as other shrubbery and trash. In February of 1978, the plaintiffs sold the lots to Joseph Razi-ano. A condition of the sale was that the trash be removed from the property. To that end, $1,000.00 was placed in escrow in accordance with an agreement allowing plaintiffs 60 days to remove the debris or forfeit the money. As plaintiffs were unable to hire anyone to remove the pile, the money was forfeited to the buyer.

On February 28, 1978, the plaintiffs filed this action seeking to recover $1,000.00 from defendant. A subsequent amendment additionally alleged loss in property value in the amount of $7,500.00. DeLatte answered, bringing a third-party demand against Raziano. Defendant’s third-party demand was settled prior to trial. As plaintiffs failed to prove their case on the issue of loss in property value, the trial judge denied an award of $7,500.00.

On appeal, defendant-appellant seeks a reversal primarily on the facts presented at trial. Appellees neither seek to have the award increased to include loss of property value, nor to include the difference between the amount awarded and the escrowed amount, but rather they seek a simple affirmation.

At trial, DeLatte testified that he hired a bulldozer to clear his property. He said that he personally did not place the debris on plaintiff’s property and that his contractor told him that the bulldozed materials were buried on DeLatte’s property. Neither the contractor nor the operator of the bulldozer were produced at trial. Although there were no eyewitnesses able to testify as to who placed the debris on the plaintiff’s property, the trial judge apparently believed the inference raised by plaintiffs that DeLatte’s contractor bulldozed the pile onto plaintiff’s property.

As in most cases of factual review, this court must place great weight in the credibility determinations of the trial judge, who has the opportunity to observe the conduct and demeanor of the witness. Such great weight is given to the trier of fact that only when our independent review of the testimony and evidence presented convinces us that the trial judge was manifestly erroneous in his factual determinations are we at liberty to reverse those findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Based upon our independent review of the record, we cannot conclude that the trial judge was manifestly erroneous in the instant appeal.

Civil Code Article 667, which was not affected by the 1977 revision of Title IV of Book II of the Civil Code, provides as follows:

“Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

In Hauck v. Brunet, 50 So.2d 495 (Orl.La. App., 1951) the court stated:

“Defendant’s attorney also advances the proposition that Montague was the independent contractor of Brunet, and maintains that under the law an owner is not ordinarily liable for the acts of an- independent contractor, and can only be said to be liable where the work itself is inherently dangerous or where inherently dangerous instrumentalities are used.
The best answer to this contention is that art. 667, R.C.C., emphatically enjoins a proprietor not to make any work on his estate which may be the cause of damages to his neighbor, and merely through the medium of an independent contractor, the proprietor cannot relieve himself from the nondelegable duty which he owes to his neighbor, and he is nonetheless liable for damages to his neighbor’s property,” (At 497-498).

The last specification of error to be addressed by this court is appellant’s contention that several exhibits were erroneously admitted into evidence. Exhibits Nos. 1-9 are photographs. At trial, counsel for the appellant objected to the introduction of the photos on the grounds that the photographer did not testify. This objection was overruled by the trial judge who allowed Robert Murphy to verify the photos. We conclude that the trial judge properly admitted the photographs into evidence under the rule of law discussed in Wallace v. Travelers Insurance Co., 195 So.2d 712 (La. App.1967):

“Our procedural rules require identification of photographs as a condition precedent to their admissibility in evidence. Generally, photographs are admissible only if verified or authenticated by extrinsic evidence. The trial court, however, is vested with some discretion in determining the sufficiency of preliminary proof of authenticity. Although the better practice dictates that a photograph be verified and authenticated by the photographer who took it, nevertheless, authentication may be accomplished by the testimony of anyone with sufficient knowledge to aver that the picture fairly represents the subject matter it purports to portray. Launey v. Traders and General Insurance Company, La.App., 169 So.2d 757, and cases therein cited.” (at 718).

Counsel for appellant failed to object to the introduction of Exhibit Nos. 10 and 12. Objections not made at trial may not be raised for the first time on appeal.

Exhibit No. 11 is photocopy of a letter to Robert Burns, the attorney who held the escrow account, from Edward Keiler, counsel representing the buyer, Joseph Raziano. The letter informed Mr. Burns that the buyer had waited the required 60 days, that the vendors had failed to remove the debris within that time period, and that he demanded that the funds held in escrow be released to him. Contained within the body of the letter is the following paragraph to which appellant objects on the grounds of hearsay:

“Attached is the only written estimate which Mr. Raziano has been able to obtain other (sic) verbal estimates have exceeded the $1,116.00 price of Johnston”.

As neither Burns nor Keiler were produced to verify the photocopy, appellant additionally contends that the letter is inadmissible under the “Original Document” rule, more popularly known as the “Best Evidence” rule.

We agree with appellant that the trial judge erred in admitting Exhibit No. 11 into evidence. We find, however, that the trial judge’s ruling is harmless error as it would not have affected the outcome of this judge’s trial. Both parties have admitted that $1,000.00 was in the escrow account and that the escrow account was released to Raziano.

For the reasons discussed, the judgment of the trial court is affirmed.

AFFIRMED.

REDMANN, J., dissents and assigns reasons.

REDMANN, Judge,

dissenting.

An owner cannot reasonably anticipate that a pile-driving contract will be performed without some cracking in neighboring buildings as a natural, almost inevitable consequence.

An owner can reasonably anticipate a lot-clearing contract will be performed without dumping the trash on a neighbor’s land. The owner is therefore not liable if the lot-clearing independent contractor drops the trash on an adjacent lot-or on a lot three blocks away.

The owner is liable for the natural consequences of proper performance of an independent contract because he has, in effect, obliged the contractor to do them. But the owner is not liable for things the contractor does that the contract does not oblige him to do.


author: SCHOTT, Judge.

text:
    Hazel B. LUNDA v. Bruce M. SAUER et al.
    No. 11315.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    C. Gordon Johnson, Jr., Porteous, Toleda-no, Hainkel & Johnson, New Orleans, for third-party defendant-appellee Insurance Co. of North America.
    Madeleine Fischer, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for third-party plaintiffs-appellants Bruce M. Sauer, City Stores, Inc. and The Travelers Ins. Co.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

This suit arose out of an automobile accident which occurred on August 7, 1975. Plaintiff alleged that the accident was caused by the negligence of Bruce M. Sauer in the operation of a vehicle leased to his employer, City Stores, Inc., and owned and leased by Ryder Truck Rental. She further alleged that Travelers Insurance Company was the liability insurer of City Stores and accordingly joined as defendants Sauer, City Stores, Ryder and Travelers. Ryder was subsequently dismissed from the suit by plaintiff and the remaining defendants brought a third- party demand against Insurance Company of North America (INA) as the primary liability insurer of Sauer and City Stores. From a judgment dismissing the third-party demand third-party plaintiffs have appealed.

Because Sauer was under 21 years of age at the time of the accident the issue is whether INA afforded coverage under its policy considering provisions of the lease agreement between Ryder and City Stores precluding operation of the vehicle by any person under 21 years of age.

The lease agreement entered into on August 7,1975, between City Stores and Ryder contained the following provisions:

“Ryder Truck Rental, Inc. (Owner) hereby rents to the firm or person executing the reverse side hereof (Renter) the motor vehicle described herein (Vehicle). Owner and Renter for the considerations and warranties herein provided covenant and agree as follows:
I. Renter warrants and agrees that the Vehicle shall not be operated:
(a) In violation of any law, ordinance, rule or regulation of any governmental agency or body or by any person under the age of 21 or who is not duly licensed and qualified.”

In addition, above the renter’s signature on the agreement, the following is provided:

“I have read and hereby agree to the terms and conditions on page 2 of this agreement and understand that I am bound by those terms. I further understand that the liability insurance as outlined in paragraph 4 is void if driver is under 21 years of age, and I accept the vehicle in the physical condition described above.”

The insurance policy issued by INA to Ryder provides:

II. PERSONS INSURED

“Each of the following is an insured under this insurance to the extent set forth below:
(c) Any other person while using an owned automobile or a hired automobile with the permission of the Named Insured provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission ...”
The policy also provides:
“It is agreed that such automobile liability insurance as is afforded by the policy, including the Exclusions and Conditions applicable thereto, for bodily injury liability under Coverage A and for property damage liability under Coverage B applies to any one or more persons or organizations leasing/renting an automobile from any named insured subject to the following provisions:
* * * * * sje
2. In addition to the other terms of this policy, the insurance afforded to such lessee/renter, his agents or employees, or to any person or organizations legally responsible for the use of an automobile so leased/rented by such lessee/renter shall also be subject to the terms, including the limit or limits of liability, conditions restrictions, and limitations in the lease/rental agreements, providing the coverage afforded under this policy is not thereby enlarged or extended.”

Appellants rely on Jones v. Breaux, 289 So.2d 110 (La.1974) and Grady v. Allstate Ins. Co., 355 So.2d 1070 (La.App. 4th Cir. 1978), in support of their position that the provisions of the rental agreement were ineffective to limit coverage under the policy-

In the Jones case, the court found that there was coverage in favor of the lessee for liability growing out of an accident in which the plaintiff was injured as the result of the negligence of the lessee’s son in the operation of the leased vehicle. The driver was under 21 years of age and the rental agreement contained provisions similar to those contained in the rental agreement now under consideration. The court held that because the rental agreement was not made a part of the policy as required by LSA R.S. 22:628 the limitation of coverage was invalid. The same result was reached by this court in the Grady case which involved the operation of the rented vehicle by an under-age driver, a rental agreement which prohibited such operation and an insurance policy issued to the rental company which did not contain such a restriction.

INA relies on Lauer v. Dickinson, 299 So.2d 525 (La.App. 4th Cir. 1974) writs refused, 302 So.2d 36 (La.). That case is distinguishable. In that case the rental agency and not the father of the minor driver was the insured. In the instant case City Stores is an insured under the policy along with the rental agency. More importantly, the automobile in the Lauer case was not being operated for the benefit of the father, whereas, in the instant case the insured City Stores was using the vehicle through its employee Sauer when the accident occurred, bringing it squarely within the ambit of the Jones and Brady cases in which the lessees were passengers in the vehicles being operated by minor drivers with their permission.

Accordingly, the judgment appealed from is reversed and there is judgment in favor of Bruce Sauer, City Stores, Inc. and The Travelers Insurance Company, and against Insurance Company of North America, denying its motion for summary judgment. The costs of this appeal are assessed against Insurance Company of North America, all other costs to await the outcome of the case which is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.


text:
    STATE of Louisiana In the Interest of Wayne COLLINS.
    No. 11551.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    New Orleans Legal Assistance Corporation, Mark McTernan, New Orleans, for appellant.
    Harry Connick, Dist. Atty., Kathleen M. Bilbe, Clifford R. Strider, Asst. Dist. Attys., New Orleans, for appellee.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a decision of the Juvenile Court for the Parish of Orleans condemning Wayne Collins to be committed to the Department of Corrections for a period of twenty-four months, of which twenty months are suspended and four months are to be served, for a violation of R.S. 14:69. Collins was in possession of a Colt Lawman Mark III .357 Magnum “snub-nosed” revolver, which was reported stolen by its licensed owner, Robert J. Lewis. From that conviction, which we now affirm, Wayne Collins appealed.

The Juvenile Court found the following facts:

On October 22, 1979, Fischer Jewelry and Loan Co. notified the New Orleans Police Department that a robbery was committed when an unidentified 5'6" black male, with a medium bush and wearing a striped shirt, grabbed a ring from a customer’s hand and ran out of the store. The suspect was accompanied by a 5'7" or 5'8" black male of medium complexion. Store personnel informed the police that the two suspects had run in the direction of University Place.
Officers Kelly and Marrione passed the Burger King located in University Place, one-half block from the jewelry store, and saw Wayne Collins through the window. Collins fit the description of one of the suspects.
Wayne Collins and Van Anthony Du-gay were in the process of obtaining lunch. Dugay was ordering the food. Collins left a briefcase in the booth while he went to the bathroom. Marrione testified that Collins was sitting in the booth prior to heading for the bathroom. Mar-rione testified that Dugay returned to the booth with the food. Marrione further testified that both suspects appeared “nervous” and the Dugay tried to push the briefcase away from him, apparently in an effort to conceal it.
While his partner was detaining Collins, Officer Marrione asked Dugay who owned the bag and asked Dugay to hand it to him. Dugay said that Collins owned it and handed over the bag without objection. Marrione took the case over to Collins, who denied ownership of the bag. Marrione opened it and found the gun. A subsequent check of the National Crime Information Center computer indicated that the gun was stolen. The police returned to the Fischer Jewelry Store with the two suspects. Store personnel indicated that Collins and Dugay did not rob the jewelry store.

Dugay and Collins were charged with violating R.S. 14:69, with regard to receiving stolen things. The District Attorney entered a nolle prosequi on behalf of Dugay. Counsel for defendant moved to suppress admission of the gun, which motion was denied.

On appeal Collins contends that the Juvenile Court improperly denied his Motion to Suppress the admission of the revolver into evidence, arguing that the gun was procured by an illegal, warrantless search and seizure in violation of the prohibition guaranteed by the Fourth Amendment of the U.S. Constitution and Art. 1, § 5 of the Louisiana Constitution of 1974.

The trial court found that the briefcase, belonging to Wayne Collins and containing the stolen weapon, constituted abandoned property. As stated by the Louisiana Supreme Court in State v. Ryan, 358 So.2d 1274 (1978) at 1276:

“There is no expectation of privacy when property is abandoned, and no constitutional prohibition against seizure of abandoned property by police.”

We agree with the conclusion of the Juvenile Court that the defendant’s actions in pushing the bag away coupled with his statement that the bag was not his constitutes abandonment. Accordingly, no warrant was required in order for the police to search the briefcase. State v. Washington, 364 So.2d 949 (1978).

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

AFFIRMED.


text:
    Sharon Hurst BARRE v. Donrad BARRE.
    No. 11937.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.

      Guy W. Olano, Jr. and Joan B. Montero, Kenner, for plaintiff-appellee.
    Marco A. Rosamano, New Orleans, for defendant-appellant.
   ON MOTION TO DISMISS

Before SAMUEL, GULOTTA and CHE-HARDY, JJ.

SAMUEL, Judge.

The sole matter before us at this time is a plaintiff-appellee motion to dismiss the appeal taken by the defendant. The record has not been lodged in this court.

The motion alleges: The order of appeal was granted on June 23, 1980 returnable to this court on August 18, 1980; the defendant-appellant has failed to pay the appeal costs due the clerk of the trial court as required by LSA-C.C.P. Art. 2126; and the return date of August 18, 1980 expired without an extension thereof.

On this showing, mover’s remedy is in the trial court and not in this court; we are without jurisdiction to entertain the motion. As provided by LSA-C.C.P. Arts. 2088(9) and 2126, even after the granting of the order of appeal in the case of a devolu-tive appeal, and after the granting of such order plus the filing of the appeal bond in the case of a suspensive appeal, the trial court retains jurisdiction to dismiss the appeal or impose the other penalties provided in Article 2126.

Accordingly, the motion is dismissed without further consideration.

DISMISSED FOR LACK OF JURISDICTION.