text:
    Lizzie Roberson DOUGLAS v. Norris DOUGLAS.
    No. 13358.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Ralph L. Roy, Baton Rouge, of counsel, for plaintiff-appellant.
    William L. Kimball, Port Allen, of counsel, for defendant-appellee.

      Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Plaintiff-appellant, Lizzie Roberson Douglas, seeks reversal of a trial court judgment granting her a separation from bed and board from her husband, Norris Douglas, but finding both parties mutually at fault. Appellant additionally complains that the $125.00 per month award of alimony pendente lite was too low. We affirm.

The record shows that Mr. and Mrs. Douglas originally met at the bar where she worked, the Black Stallion, and were married in 1965. Mrs. Douglas, eight years older than her husband, had two children by a prior marriage. Working as a beautician, both prior and subsequent to her marriage to the defendant, she sent both children through college.

Domestic tranquillity in the Douglas home, owned separately by the plaintiff, has frequently been shattered by arguments, primarily over Mr. Douglas’ predilection for staying out overnight and frequenting such bars as the Roadrunner and the Paradise Inn.

Mrs. Douglas objects to her husband’s life-style and, apparently, is quite jealous. On at least one occasion, she contacted the local sheriff in an attempt to prevent future visits from a woman she believed was driving up to her house to see her husband. Mr. Douglas obstinately refuses to change his unusual life-style, which, to a degree, must have been known to plaintiff from the outset of their courtship.

On several occasions, Mr. Douglas has packed his bags and temporarily left the family domicile. He testified that his wife told him to get out numerous times, including his final exodus prior to this suit. Mrs. Douglas maintains that he left of his own volition.

At trial on the merits, plaintiff strove mightily to prove her husband was an adulterer. The testimony of both her investigators was wholly discredited, however. No adultery was proven.

Clearly, the Douglas marriage has been tottering for some time. Both spouses refuse to change their ways, yet insist that the other do so. Both argue frequently and temporary breakups occur. Cruel treatment abounds.

The judgment of separation was granted under the authority of LSA-C.C. Art. 141, which provides:

“A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances, alimony pendente lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.”

For mutual fault to exist, each party must have been guilty of conduct sufficient to constitute an independent ground for separation, even though one may be guilty of greater fault than the other. Brocato v. Brocato, 369 So.2d 1083 (La.App. 1st Cir. 1979), writ denied 371 So.2d 1341 (1979). See also Watson v. Watson, 372 So.2d 639 (La.App. 1st Cir. 1979) and Dixon v. Dixon, 357 So.2d 856 (La.App. 4th Cir. 1978).

The trial court evidently found that each spouse was guilty of cruelty such as would permit a separation from bed and board under LSA-C.C. Art. 138(3). Credibility determinations by the trier of fact are entitled to great weight and there should be no reversal without a finding of manifest error. Watson v. Watson, supra. The record in this case fully supports a finding of mutual fault. There was no manifest error.

We find no merit in plaintiff’s claim that the alimony pendente lite award of $125.00 per month was inadequate. On her own earnings, Mrs. Douglas managed to send two children through college and has supported herself for the past year. Her income tax return showing earnings of only $350.00 in a whole year openly conflicts with her testimony at trial that she netted $125.00 per month. It is quite likely that the trial court took into consideration both the fact that her earnings are on a cash basis and not subject to verification and Mr. Douglas’ testimony that his wife’s business did quite well.

Mrs. Douglas’ claims that she is now unable to work must fall on deaf ears. She and her counsel chose not to introduce medical evidence or call physicians to testify at trial.

We note that Mr. Douglas agreed to pay his wife’s past due medical bills and to maintain the insurance, at least until a final divorce. His earnings and expenses were carefully documented.

The determinative issue is the award’s adequacy in light of all the circumstances. A trial court has wide discretion and, even if the reviewing court considers the award to be low, the award will not be disturbed unless it is so low as to constitute an abuse of discretion. Meyer v. Meyer, 371 So.2d 1304 (La.App. 4th Cir. 1979), writ denied 373 So.2d 546 (1979); Gray v. Champagne, 367 So.2d 1309 (La.App. 4th Cir. 1979). There was no abuse of discretion in the present case.

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by Lizzie Roberson Douglas.

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Vernon MICHAELMAN v. Sheriff J. Al AMISS, Warden Rodger Aucoin, the Parish of East Baton Rouge, and the State of Louisiana.
    No. 12774.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    E. Wade Shows, Baton Rouge, of counsel for plaintiff-appellant Vernon Michaelman.
    Asst. Parish Atty. Joseph F. Keogh, Stephen R. Wilson, Baton Rouge, of counsel for defendant-appellee Parish of East Baton Rouge.
    William H. Cooper, Jr., Baton Rouge, of counsel for defendants-appellees J. A1 Amiss, Sheriff, Warden Rodger Aucoin and The North River Ins. Co.
    Asst. Atty. Gen. Thomas S. Halligan, Baton Rouge, of counsel for defendant-appel-lee State of La.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

In our original opinion in this case, reported at 376 So.2d 1029 (La.App. 1st Cir. 1979), we held that the State is not the employer of a deputy sheriff and, therefore, is not vicariously liable for his torts. We found that a contrary statement by our Supreme Court in Foster v. Hampton, 352 So.2d 197 (La.1977), was pure dictum. Foster v. Hampton has since revisited the Supreme Court, and that court has reaffirmed its position that the State is the employer of a deputy sheriff. The case at bar has been remanded to this court for reconsideration in light of that reaffirmation.

The State in its brief on remand attempts to distinguish the facts in the present case from those in Foster v. Hampton. The State argues that in Foster the deputy sheriff was in the act of serving process for a district court when an accident occurred. The complaint in this suit arises out of the operation of the East Baton Rouge Parish jail. Service of process, the State notes, is the performance of a judicial function, whereas jail management is a law enforcement function vested in the chief law enforcement officer of the parish. Article 5, Section 27, La.Const. (1974). The State further points out that the office of sheriff is mentioned twice in the local government article of the Louisiana Constitution. Article 6, Section 5(G) and Section 7(B).

The State also argues that with the advent of law enforcement districts (La.R.S. 33:9001, et seq.) the operation of the sheriff’s office is financed through tax millages, and the sheriff is totally independent of the State.

Lastly, the State argues that if the Supreme Court intended to find that sheriffs and their deputies are State employees in all factual contexts, it would have simply granted writs, reversed, and remanded this case. The Supreme Court, however, did not reverse this court’s opinion but remanded the case for reconsideration in light of Foster v. Hampton II.

We see no significance in the factual or financial distinctions made by the State. When the Louisiana Supreme Court renders a decision dealing with the same subject matter as that of another case pending before it, the court’s policy is to remand the pending case to the Court of Appeal for reconsideration in light of the case already decided by the Supreme Court. We are convinced the Supreme Court intends that a deputy sheriff be recognized as an employee of the State regardless of the factual situation. We must necessarily conclude, then, that the Supreme Court did not intend its statement in Foster v. Hampton I, about employment and vicarious liability to be dictum. Thus, we hold that the trial judge was in error in the instant case in relying on Wambles v. State, 283 So.2d 331 (La.App. 4th Cir. 1973) and in dismissing the plaintiff’s suit against the State on an exception of no cause of action.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed and remanded for further proceedings consistent with the views expressed hereinabove. The State will bear the costs according to law.

REVERSED AND REMANDED.

      . 381 So.2d 789 (La.1980).


author: COLE, Judge.

text:
    Clifton E. HAGOOD, Jr., et al. v. Kenneth E. PICKERING et al.
    No. 13210.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Ross A. Brupbacher, Jefferson J. Moss, Jr., Lafayette, for plaintiff-appellant Clifton E. Hagood, Jr.
    William J. Guste, Jr., Atty. Gen., Kenneth C. DeJean, Asst. Atty. Gen., Baton Rouge, for defendants-appellees Kenneth E. Pickering, et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

There are two issues presented by this appeal: (1) whether under the Administrative Procedures Act (La.R.S. 49:951 et seq.) an applicant for a certificate of authority to organize a bank is entitled to a hearing before the Commissioner of Financial Institutions; and (2) whether the trial court was correct in its review on the merits of the decision of the Commissioner.

Plaintiffs-appellants petitioned the Commissioner of Financial Institutions for authorization to establish the First Acadian Bank and Trust Company in Lafayette Parish. After three informal meetings with the plaintiffs, the Commissioner denied the application on September 11, 1978, citing insufficient need for banking services in the area. The Commissioner testified his ruling was based on confidential materials gathered by his examiners.

Plaintiffs assert that judicial review of the Commissioner’s decision is controlled by § 964 of the Administrative Procedures Act and that under § 955(A) of that act they were entitled to a formal hearing before the Commissioner. The relevant portions of the act read as follows:

§ 951.
As used in this Chapter:
(1) ‘Adjudication’ means agency process for the formulation of a decision or order.
(3) ‘Decision’ or ‘order’ means the whole or any part of the final disposition (whether affirmative, negative, injunc-tive, or declaratory in form) of any agency, in any matter other than rulemaking, required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing, and including non-revenue licensing, when the grant, denial, or renewal of a license is required by constitution or statute to be preceded by notice and opportunity for hearing.
§ 955.
A. In an adjudication, all parties who do not waive their rights shall be afforded an opportunity for hearing after reasonable notice.
§ 964.
A. A person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter .

The Supreme Court in the recent case of Delta Bank & Trust Company v. Lassiter, 383 So.2d 330 (La.1980), held the Commissioner is a state agency as defined in the Administrative Procedures Act and that the provisions of the act do apply to his activities. However, for the reasons given below, we conclude there is no provision which requires the Commissioner to grant a hearing to an applicant for a certificate of authority.

Section 955(A) of the act gives a right to a hearing only in an “adjudication.” When the definition of “adjudication” is read together with the definition of the included words “decision or order,” it is clear a hearing is provided for only when the agency disposition is required by statute or constitution to be made after notice and opportunity for a hearing. In other words, the Administrative Procedures Act does not create an independent right to a hearing. It merely sets forth the procedures to be used if the agency is obligated to hold a hearing by constitution or another statute. Delta Bank & Trust Company v. Lassiter, supra; First Federal Savings & Loan Association of Concordia, Vidalia v. Smith, 327 So.2d 657 (La.App. 1st Cir. 1976); First National Bank of Abbeville v. Sehrt, 246 So.2d 382 (La.App. 1st Cir. 1971).

Also the procedures for judicial review provided for in the Administrative Procedures Act are restricted to persons who are “aggrieved by a final decision or order in an adjudication proceeding.” La. R.S. 49:964. Thus, this provision too is applicable only when the ruling under review is one required by statute or constitution to be made after notice and a hearing.

In ruling on applications for certificates of authority, the Commissioner is acting under the statutory authority of La.R.S. 6:241, which provides in pertinent part:

No banking association shall commence business or open branch offices until it has procured from the commissioner a certificate of authority which shall not be granted until the association has furnished to him satisfactory proof that it has complied with all requirements concerning the adoption and recordation of its charter and that one hundred percent of the subscribed capital has been paid up in lawful money.
Before issuing a certificate of authority to any banking association or savings bank, the commissioner shall examine the qualifications, responsibility, and standing of the persons organizing the association or bank. If he finds that the public interest will not be subserved by permitting such persons to organize the association or bank, he shall refuse to issue the certificate.

Nothing in this statute nor in other statutes relative to the Commissioner’s functions requires a hearing on applications for certificates of authority. Delta Bank & Trust Company v. Lassiter, supra; First National Bank of Abbeville v. Sehrt, supra.

However, we must go one step further and determine if a hearing is required by the due process clauses of the Louisiana and federal constitutions. If it is, then the provisions of the Administrative Procedures Act would apply. In Delta Bank & Trust Company v. Lassiter, supra, the Supreme Court held opponents of an application for a certificate of authority had no due process rights to a hearing since the competition of a new. bank in the area did not constitute deprivation of any liberty or property interests. The case before us differs in that it involves the due process rights of the applicants, not the opponents.

The initial inquiry in a due process claim is to determine if the claimant has a property or liberty interest which has been adversely affected. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). For the reasons given below, we conclude plaintiffs have no property or liberty interests within the protection of the due process clause which are damaged by the Commissioner’s refusal to grant a certificate of authority.

Plaintiffs have certainly not been deprived of “liberty” ’by the Commissioner’s refusal to authorize them to establish a bank. Their position as it relates to any liberty interest remains the same as before the Commissioner’s ruling. The denial of their application on grounds of insufficient need in no way harmed their reputation in the community or deprived them of opportunities to engage in other business ventures. Board of Regents of State Colleges v. Roth, supra; Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).

The U. S. Supreme Court in Board of Regents of State Colleges v. Roth, supra, 92 S.Ct. at 2709, discussed the property interests protected by procedural due process as follows:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Plaintiffs clearly have no property interest' in a certificate of authority. La. R.S. 6:241 does not condition the granting of certificates merely on the applicant meeting certain specified qualifications. Rather, it gives the Commissioner broad discretionary powers to determine if the public interest would be subserved. Nothing in this statute could be construed to give an applicant a legitimate claim of entitlement to a certificate of authority.

In our holding that due process does not require an applicant be given a hearing before the denial of an application, we are supported by the following observation made by the Louisiana Supreme Court in Delta Bank and Trust Company v. Lassiter, supra at footnote 4:

In Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), the Supreme Court of the United States held that the Comptroller of the Currency is not required to hold a hearing on applications for bank charters, even at the instance of a party who has actually applied for a charter. The court did not directly address the issue of due process, but the clear implication of the holding was that there is no due process problem with the comptroller’s power to grant or deny such applications in his discretion without a hearing.

Since there is no constitutional nor statutory requirement for a hearing on applications for certificates of authority, we hold, as did the trial court, that the procedures set forth in the Administrative Procedures Act for hearings and judicial review do not apply to the Commissioner’s disposition of the application nor to our review of his ruling.

The trial court, after finding the Administrative Procedures Act inapplicable, proceeded to review, on the merits the Commissioner’s decision. Following an in-camera inspection of the documents relied upon by the Commissioner, the trial court upheld the Commissioner’s action on the grounds the Commissioner did not act in an arbitrary, capricious or unreasonable manner.

We agree with the trial court that the Commissioner’s decision is subject to judicial review and that the scope of review is limited to a determination of whether the ruling was unreasonable, arbitrary or capricious or amounted to an abuse of discretion. Delta Bank & Trust Company v. Lassiter, supra; Kansas City Southern Ry. Co. v. Louisiana Public Service Commission, 254 La. 160, 223 So.2d 132 (1969). However, we must reverse the trial court as the plaintiffs failed to state a cause of action for judicial review.

To state a cause of action for review of an administrative proceeding a petition must contain allegations of facts from which the court could conclude the administrative agency abused its discretion. Delta Bank & Trust Company v. Lassiter, supra.

In testing a petition for a cause of action, all well-pleaded facts are accepted as true and all doubts are resolved in favor of the sufficiency of the petition. C.C.P. arts. 927, 931; Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961). However mere statements of conclusions of law will not state a cause of action. C.C.P. art. 891; Delta Bank & Trust Company v. Lassiter, supra; Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1st Cir. 1980); Williams v. Chrysler Motor Company, 271 So.2d 551 (La.App. 1st Cir. 1972).

An examination of plaintiffs’ pleadings reveals no allegations of fact from which a court could conclude the Commissioner abused his discretion. The supplemental and amending petition contains the following allegations:

(1) The decision was made in excess of the statutory authority of the Office of Financial Institutions.
(2) The decision was made upon unlawful procedure.
(3) The decision was arbitrary or capricious or characterized by an abuse of discretion or by a clearly unwarranted exercise of discretion.
(4) The decision was manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record.

However, each of the above statements is a conclusion of law unsupported by any allegations of specific facts.

For the foregoing reasons, the judgment below is affirmed in part and reversed in part and the case is remanded for further proceedings in accordance with Code of Civil Procedure article 934. Costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

      . Code of Civil Procedure article 927 provides an appellate court can notice on its own motion the failure to state a cause of action.


author: COVINGTON, Judge.

text:
    Everette P. HEBERT v. DIAMOND M COMPANY et al.
    No. 13223.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.

      Joseph L. Waitz, Houma, for plaintiff and appellee.
    Raymond Morgan Allen, Lafayette, for defendant and appellant Diamond M Co.
    John J. Weigel, New Orleans, for third-party defendant and appellant F.M.C. Corp.
    J. Mark Graham, Houma, for intervenor Aetna Cas. & Sur. Co.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is an appeal by Diamond M Company, defendant, from a judgment in favor of Everette P. Hebert, plaintiff. Plaintiff has answered the appeal, asking for an increase in certain awards; i. e., future medical expenses and loss of future earnings. Inter-venor, Aetna Casualty & Surety Company, has also answered the appeal, seeking reimbursement from Diamond M Company for additional medical expenses, maintenance or cure which intervenor may be required to pay to the plaintiff.

This suit arises out of a simple state of facts. Plaintiff, Everette P. Hebert, while in the employ of Dowell, Inc., was seriously injured on November 30,1977, when he was dropped about 15 feet onto the steel deck of the crew boat from a personnel carrier which was being lifted by a crane aboard a tender barge. At the time of the accident, plaintiff was aboard the M/V MASTER JODY, a crew boat, and was being lifted in a personnel carrier suspended from defendant’s crane located aboard the Diamond M tender barge, S-25, which served as an Exxon fixed platform in the Gulf of Mexico off the coast of the State of Louisiana.

As a result of the accident and resulting injuries, on June 30, 1978, plaintiff sued Diamond M Company in personam in state court pursuant to the “Savings to Suitors” clause of the Federal Constitution and 28 U.S.C.A. § 1333, alleging a cause of action under General Maritime Law, based on negligence and unseaworthiness.

On August 30, 1978, Diamond M Company filed an answer in the nature of a general denial, and demanded a trial by jury of all actions and causes of action involved herein.

On October 10, 1978, a petition of intervention was filed by Aetna Casualty & Surety Company, the workmen’s compensation insurer of Dowell, Inc., seeking recovery of benefits and medical expenses paid to plaintiff.

On October 18, 1978, defendant brought F.M.C. Corporation, as manufacturer, distributor and seller of the Diamond M crane involved, into the suit by a third party demand for indemnification and/or contribution.

The trial court denied defendant’s request for jury trial, and on October 13, 1978, defendant applied for writs to this Court. On October 24, 1978, an alternative writ of mandamus was issued by this Court, commanding the trial judge to grant a trial by jury or to show cause why the writ should not be made peremptory. In due course this Court made the writ peremptory, holding that “since trial by jury is a remedy recognized in this state, this remedy is available to a litigant in a maritime or admiralty claim the same as it would be to any other civil litigant before our courts.” Hebert v. Diamond M Company, 367 So.2d 1210 (La.App. 1 Cir. 1978).

On November 15, 1978, plaintiff filed a supplemental petition, alleging alternatively the applicability of the Jones Act, 46 U.S.C.A. § 688, by virtue of his employment by defendant as a seaman permanently attached to and working aboard the Diamond M tender on which the alleged accident occurred. Moreover, plaintiff averred that as a seaman under the Jones Act, “petitioner elects to have his claims tried by the court rather than by a jury.”

On December 28, 1978, the clerk’s office mailed notice of the trial by jury set for January 29, 1979.

On December 29, 1978, the plaintiff filed a rule to show cause why the jury trial should not be stricken on the ground that as a Jones Act seaman, he was entitled to elect and had elected to have his case tried by the Court rather than by a jury. On January 4, 1979, defendant filed a motion for partial summary judgment, seeking to have the Jones Act claim dismissed. Thereafter, plaintiff moved for partial summary judgment to have himself declared a Jones Act seaman as to Diamond M.

On January 10, 1979, the trial court denied the rule to strike the jury, and took the motions for partial summary judgment under advisement.

Prior to trial, stipulations were made regarding the intervenor’s claim whereby the parties recognized Aetna’s right to reimbursement of amounts paid to plaintiff for maintenance in the sum of $2,984.00, and for medical expenses in the sum of $10,-613.40, which sums were to be added to any award made to plaintiff and paid directly to Aetna.

The matter then came on for trial before the jury and the trial judge. During the trial, Diamond M admitted liability and admitted that plaintiff was a seaman.

After the case was tried and submitted, the jury rendered a verdict in plaintiff’s favor against defendant in the sum of $470,000.00 for loss of future earnings, $104,000.00 for pain, suffering, mental anguish and disability, and $76,000.00 for future medical expenses, or a total amount of $650,000.00. The jury also returned a general verdict in favor of the plaintiff in the same amount.

On March 8,1979, the trial court rendered its written reasons for judgment and, on its own motion, rendered and signed judgment in favor of Hebert against Diamond M in the sum of One Million, Forty-six Thousand Dollars ($1,046,000.00), together with legal interest from date of judicial demand and costs. Judgment was also entered in favor of intervenor, Aetna, in accordance with the stipulations in the suit. Except for questioning the date from which the interest should be awarded, the post-judgment rules and motions raised no new issues. The motion for new trial by defendant, and a motion for additur by plaintiff, were denied. This appeal and the answers thereto followed.

On this appeal, the plaintiff has formally withdrawn his claim under the Jones Act and seeks recovery only under the general maritime law; it is thus not necessary for us to decide whether the trial judge erred in electing to try the case himself as a Jones Act claim rather than letting the jury decide it, or whether the jury correctly decided that Everette P. Hebert was a “borrowed servant” of Diamond M Company within the meaning of Jones Act coverage at the time of the accident. Hence, the case is before us as though it is an appeal from a judgment on the jury verdict in favor of the plaintiff in the amount of $650,000.00.

We turn to the assessment of damages as made by the jury. The record shows that plaintiff Hebert was dropped a distance of about 15 feet onto the steel deck of the crew boat. He sustained injuries to his back, his left arm (with contusion to the ulnar nerve) and his left ankle (with three broken bones). Due to the accident, plaintiff developed serious mental disorders. He received only superficial treatment at the scene and was in great pain, at least until he could be taken to the hospital. He has been hospitalized on three occasions: first, for surgery to his ankle; second, for a mye-logram for his back; third, for pelvic traction for his back. He has not returned to his former work or any gainful employment.

A metal pin was inserted during ankle surgery. Hebert was in full leg cast for six months and a partial cast for a period of time thereafter. Dr. Christopher Cenac, the treating physician, testified that plaintiff walked with an awkward, rolling gait, as though the hinge action of the ankle is not normal. He was of the opinion that Hebert would require surgery to remove the pin and either fusion or a joint replacement to repair the ankle. The record establishes permanent residual damage to the ankle which will cause a permanent limp when the plaintiff walks.

The back injury necessitated hospitalization twice, once for eight days for the mye-logram, and then eleven days for pelvic traction. At present the plaintiff wears a transcutaneous electrical nerve stimulator to relieve the back pain. The record establishes that plaintiff’s present condition of spondylolisthesis was caused by the accident and that he will probably require a spinal fusion to help alleviate the pain. There is also permanent nerve damage in his back. Regardless of whether Hebert has the spinal fusion, the medical evidence shows definite permanent damage to his back. Dr. Cenac testified to a substantial disability rating to the back. Dr. Stuart Phillips, plaintiff’s consulting physician, testified that plaintiff is restricted to lifting only light weights (from 10-25 pounds).

As to his arm, Hebert will require surgery because of the ulnar nerve injury. This will necessitate three days’ hospitalization, six weeks in a cast, and six weeks of rehabilitation, according to Dr. Phillips. There was also expert testimony that plaintiff’s mental condition was delaying the nerve surgery. As to the physical problems associated with the nerve, Dr. Phillips testified that Hebert has pain and numbness and has a tendency to drop things because the ulnar nerve is the one that supplies the hand muscles.

The record also establishes that plaintiff’s mental illness is a disabling condition. Dr. Thomas Moore, who was the plaintiff’s treating psychiatrist, diagnosed his condition as a depressive reaction to the accident . This serious mental disorder can not be controlled without heavy medication. At the time of the trial, plaintiff had been on seven different drugs. Dr. Moore expressed the opinion that Hebert could not even be rehabilitated to a clerical job or similar light work. Dr. Moore expressed his opinion as follows:

“I think he’ll be in a chronic depression, and that the depression would vary in terms of its depth from anywhere from being totally disabling to almost being vegetative, and if you really want to get into it, there would probably be the possibility of suicide because of his inability to be what he felt he should be.”

We have carefully examined the record in this case, and find that there was no manifest error in the jury’s conclusion that plaintiff Hebert sustained a permanent disability from engaging in gainful employment over a long period of time, as reflected by its fixing of the award for loss of future earnings at the sum of $470,000.00. However, in making this computation, the jury fell into manifest error. The economic expert, using a discount rate of 5% and a wage increase rate of 7%, determined that Hebert would suffer a loss of future earnings of $980,260.95. The jury award, being less than half of that amount, is such as to shock our consciences if it was allowed to remain untouched. In accordance with the directions of our Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), we must raise that special award to $780,000.00.

The record supports the jury’s awards for pain, suffering, mental anguish and disability, and $76,000.00 for future medical expenses. We find no abuse of the trier of fact’s discretion in fixing those awards to plaintiff Hebert at the total sum of $180,000.00.

With respect to the award of general damages, each case must be weighed and evaluated according to its own particular facts and circumstances. A scale of prior awards, made for merely generically similar medical injuries, can not be used by a reviewing court to ascertain whether or not a particular trier of fact has abused its “much discretion”, accorded by LSA-C.C. art. 1934(3), in the award to this particular injured person under the facts and circumstances peculiar to this particular case. Reck v. Stevens, 373 So.2d 498 (La.1979).

In Reck v. Stevens, supra at 501, the Court stated:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.
“In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function—if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) ‘similar’ injuries, see Coco at 341 So.2d 334.
“However, absent an initial determination that the trial court’s very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier’s award. Wilson v. Magee, 367 So.2d 314 (La.1979).”

Finding no abuse of discretion, we affirm those portions of the jury’s award. Hanzy v. Sam, 385 So.2d 355 (1980). Therefore, we amend the trial court’s judgment in accordance therewith.

Appellant’s next contention is that the plaintiff is not entitled to interest from date of judicial demand, but only from date of judgment. Since this case is in the posture of a claim under the general maritime law rather than a Jones Act claim, the trial court had discretion to award pre-judgment interest. See Canova v. Travelers Insurance Company, 406 F.2d 410 (C.A. 5 Cir. 1969); Ferdinandtsen v. Delta Marine Drilling Company, 235 So.2d 461 (La.App. 4 Cir. 1970). There was no abuse of this discretion.

On the question of the award of expert fees, we find that the trial court’s award of fees to Ms. Terry Ringer and Mr. Roger Villarrubia was in error, because these two individuals were not qualified by said court as experts. Ms. Ringer is a court reporter who offered factual testimony concerning a deposition she took and transcribed. Mr. Villarrubia, as executive director of Terrebonne General Hospital, offered factual testimony concerning hospital costs at his hospital; he did not give any expert testimony on any aspect of the case. We, thus, amend the judgment insofar as awards of expert witness fees to Ms. Ringer, and Mr. Villarrubia were made. LSA-R.S. 13:3666; Wallace v. State Farm Fire & Casualty Insurance Company, 345 So.2d 1004 (La.App. 2 Cir. 1977), writ refused, 349 So.2d 334 (La.1977).

As to the award of expert fees for the expert witnesses who were properly qualified as such, we find no abuse of the trial court’s discretion. The awarding of expert fees rests within the discretion of the trial court to be fixed with reference to the “value of time” and the “degree of learning or skill” of the expert witness. LSA-R.S. 13:3666; Succession of Moody, 306 So.2d 869 (La.App. 1 Cir. 1974), writ denied, 310 So.2d 639 (La.1975).

As stated above, intervenor, Aetna Casualty & Surety Company, has answered the appeal of Diamond M seeking a decree in its favor against Diamond M, declaring inter-venor’s entitlement to recover the full amount of any medical expenses or maintenance or cure which intervenor may be required to pay plaintiff Hebert in addition to those covered by the stipulation in this suit.

We have reviewed the record and find that there is nothing before us presented by Aetna which we can review. The judgment from which Diamond M appealed awarded Aetna $13,597.40, in accordance with the stipulation entered into prior to trial. On May 9,1979, a satisfaction of judgment was executed by Aetna satisfying and settling the claims asserted by Aetna against Diamond M in the instant suit. The judgment as to Aetna has been satisfied. LSA-C.C.P. art. 2085; Jack v. Lambert’s In Metairie, Inc., 348 So.2d 102 (La.App. 4 Cir. 1977).

For the reasons assigned, we amend the judgment to increase the total award to $780,000.00 for loss of future earnings; we delete and deny the expert witness fees of $50.00 and $100.00 to Mr. Roger Villarrubia and Ms. Terry Ringer, respectively; we affirm the jury award in favor of plaintiff, Everette P. Hebert, and against the defendant, Diamond M Company, in all other respects. We amend the judgment accordingly. We deny and dismiss the answer to the appeal filed by Aetna Casualty & Surety Company, intervenor, without prejudice to its rights in other legal proceedings. The appellant, Diamond M Company, is cast for costs of this appeal.

AMENDED AND AFFIRMED.

      . Joseph Hawks, safety director of Diamond M Company, was also named in the petition as a defendant, but was dismissed without prejudice during the trial.

      . During the trial defendant’s third party demand against F.M.C. Corporation was dismissed with prejudice, so that demand is not before the Court.

      . Neither this action, nor the actions referred to in the footnotes above, are reflected in the minutes of the Court; however, they are referred to by the Court in its written reasons.


text:
    Owen J. RHODES v. Anton FROMENTHAL, Jr. and Roxanna Guillot.
    No. 13291.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Gerald J. Block, Lafayette, for appellant.
    Allen A. McElroy, Jr., McElroy & Ramsey, Berwick, for appellees.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is an action ex delicto by Owen J. Rhodes against Anton Fromenthal, Jr. and Roxanna Guillot. From a summary judgment in favor of Fromenthal, plaintiff has appealed.

Plaintiff alleges that while Ms. Guillot was operating an automobile owned by Fro-menthal, she collided with a motorcycle operated by plaintiff. Plaintiff alleges negligence on the part of Ms. Guillot and that an agency relationship existed between Ms. Guillot and Fromenthal so as to make both defendants liable in solido. Plaintiff does not allege any independent negligence on the part of Fromenthal. Ms. Guillot and Fromenthal live together, though they are not married to each other. She is legally separated from her husband. At the time of the accident Ms. Guillot had the apparent permission of Fromenthal to use the automobile and was in route to the beauty parlor.

In support of the motion for summary judgment both defendants filed affidavits setting forth the above facts which are not in dispute. From the pleadings, affidavits and depositions on file in the record, we conclude that there is no genuine issue of material fact, and the motion should be granted if mover is entitled to judgment as a matter of law.

Plaintiff apparently argues that, because of the live-in arrangement, Ms. Guillot should be treated as if she were Fromen-thal’s wife.

We know of no statutory law or jurisprudential rule that would make a non-negligent automobile owner liable for the torts committed by a friend while operating the owner’s car.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


text:
    LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Willie L. PRINE and Minnie Ott Prime.
    No. 13300.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Allen Boudreaux and Roland C. Kizer, Jr., Baton Rouge, for plaintiff-appellee Liberty National Life Insurance Co.
    Ford T. Hardy, Jr., New Orleans, for defendants-appellants Willie L. Prine and Minnie Ott Prine.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is a suit for the seizure and sale by executory process of certain real estate.

The petition of Liberty National Life Insurance Company alleges, in summary, it is the holder, for value, of a promissory note executed by William L. Honea and Katherine Maudine Watson Honea dated March 23,1961, which is secured by a mortgage on Lot 91 of Foster Heights Subdivision located in East Baton Rouge Parish, Louisiana.

It further alleges, through a series of sales, the obligation was eventually assumed by the present owners, Willie L. Prine and Minnie Ott Prine, and the monthly notes thereon have not been paid since November 1,1978. Based upon the petition and its attachments, an order of executory process issued.

The Prines, who had purchased the property by an act of sale with assumption of mortgage, attempted to enjoin that seizure and sale on several grounds. Subsequent to a hearing in the district court, injunctive relief was denied and an attorney’s fee of $1,000.00 was awarded to the plaintiff for the dissolution of the allegedly improper restraining order. This devolutive appeal by the defendants followed and upon application to this court, an order issued staying the judicial sale of the property until the matter was decided here.

The appellants contend that executory process is improper in this case because of several defects in the petition and documents attached thereto. We find that the documents presented by the plaintiff are insufficient to allow the use of executory process.

The documentation offered by Liberty National to obtain the order of executory process reflects the promissory note originally executed by the Honeas was assigned to the plaintiff by a notarial act of assignment on March 23, 1961. However, the notarial assignment itself states the note was assigned to the Manhattan Savings Bank.

This discrepancy was apparently not noticed until shortly before the filing of this suit. On May 11, 1979 a notarial act of correction was executed by the original assignor, Louisiana Fire Insurance Company, which stated the first act of assignment was in error, that Manhattan Savings Bank had never received the note and that Liberty National was the correct assignee and had always possessed the note since 1961.

The record, however, contains no recognition in authentic form of these facts by Manhattan Savings Bank.

Code of Civil Procedure Article 2635 provides:

“The plaintiff shall submit with his petition the authentic evidence necessary to prove his right to use executory process to enforce the mortgage or privilege. These exhibits shall include authentic evidence of:
(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage or privilege;
(2) The authentic act of mortgage or privilege importing a confession of judgment; and
(3) Any judgment, judicial letters, order or court, or authentic act necessary to complete the proof of plaintiff’s right to use the executory process.
This requirement of authentic evidence is relaxed only in those cases, and to the extent, provided by law.” [Emphasis added.]
The official comments relating to Article 2635 state, in part:
(b) The requirement of authentic evidence to support every link in the necessary chain of evidence in an executory proceeding is the very foundation of ex-ecutory procedure. Its rigid application, in the absence of statute, is well illustrated in the leading case of Miller, Lyon & Co. v. Cappel, 36 La.Ann. 264 (1884) where it was held that: ‘To justify the order of seizure and sale every muniment of title, and every link of evidence must be in the authentic form. In such a proceeding the judge can entertain no matter in pais.’ To the same effect, see Ricks v. Bernstein, 19 La.Ann. 141 (1867).” [Emphasis added.]

Strict adherence to the requirements for executory process is necessary. Executory process is a harsh remedy and the party using it must strictly comply with the letter of the law governing this severe remedy. First National Bank of Lafayette v. Gaddis, 250 So.2d 504 (La.App. 3d Cir. 1971); Slidell Building Supply, Inc. v. I. D. S. Mortgage Corporation, 273 So.2d 343 (La.App. 1st Cir. 1972).

Although the issue raised by the facts here presented is res nova, we conclude the unilateral notarial act of correction is insufficient to fully and completely establish the chain of evidence necessary for Liberty National to proceed by executo-ry process. Without a proper and sufficient acknowledgment by Manhattan Savings Bank of the fact they had no interest in the note sued upon here, we find executory process is not available to the appellees.

Appellee strongly contends L.R.S. 13:4104, by analogy, should permit executo-ry process in this instance. It provides:

“The right to an order for executory process shall exist when there is a variance between a notarial act of mortgage and the note or notes issued in connection therewith, when such variance is sue to a clerical error and the fact that such variance is so due is certified on the note or notes or on the act of mortgage, or both, over the official signature of the notary before whom the mortgage was passed.” [Emphasis added.]

We conclude the debtor has less interest in an assignment than in errors connected with the note or mortgage. However, we cannot agree because the notary has the power to correct variances between the mortgage and note due to a clerical error, his power extends to and includes the unilateral correction of an assignment of the note. A variance between the note and mortgage is indicative of clerical error. Either the note provision or the mortgage provision is erroneous when they provide differently with respect to the same subject matter. An assignment of the note, however, creates a link in the chain of evidence not suggestive of clerical error but one essential “to complete the proof of plaintiff’s right to use the executory process.” In essence, this matter must be viewed from the standpoint of the creditor establishing his right to seize, nor from the debtor’s obligation to pay. There is no variance in the documentary evidence in this case, only a missing link in the chain of authenticity. Only Manhattan Savings Bank can provide the missing link.

We recognize this result is harsh but absent legislative authorization, the unilateral correction of a note assignment is contrary to the strict requirements of executory process. A different result would ignore that part of La.C.C.P. art. 2635 providing: “This requirement of authentic evidence is relaxed only in those cases, and to the extent, provided by law.”

The appellants also seek attorneys fees as a result of this attempted seizure by Liberty National. It has been previously decided attorneys fees may be allowed to a mortgagor who successfully averts an attempted foreclosure by executory process. May Co., Inc. v. Heirs of Sumage, 347 So.2d 916 (La.App. 3d Cir. 1977). We have considered the evidence concerning time expended and work done by counsel for the Prines and we find an award of $500.00 is in order. Appellee is cast for that sum.

The judgment of the district court is reversed; executory proceedings are permanently enjoined; attorneys fees are ordered; and all costs of this appeal are to be paid by the appellee.

REVERSED AND RENDERED.


text:
    Thomas E. SHAFFETT v. Lee VICKS.
    No. 13302.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      John R. Burgess, Livingston, for plaintiff.
    Curtis M. Baham, Jr., Hammond, for defendant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

The issue before this Court is the amount of damages a defendant must pay for trees cut and removed by the defendant, acting in good faith, from the land of the owner, without the latter’s consent, where the boundary line between plaintiff’s and defendant’s land has not been fixed although there is a surveyed property line for the plaintiff’s land.

The plaintiff owns the southerly tract of land, comprising 7.52 acres, which he acquired in an exchange with the partnership of Batson & Jones on March 29, 1977. The tract had been surveyed for this transaction by John D. Adams, Surveyor, on March 14, 1977. The north boundary line was about 1332 feet in length and was indicated by witness trees at each end, with iron pipes (tied with red ribbons) at various points along the straight line. The property to the north of the plaintiff’s tract was acquired by the defendant by credit deed from the Blackwells in July of 1978. This property has not been surveyed. The boundary between the two tracts has never been fixed, the two tracts apparently at one time having been owned by one owner, Ralph Jones.

After his acquisition, defendant Vicks arranged to have his timber cut by George and Josh Chappel, loggers of many years experience. The property line between the two tracts (the north line of the Shaffett tract) was pointed out to Vicks by Shaffett; and Vicks, in turn, pointed out the line to the loggers.

The timber was cut and removed in August and September of 1978. It was on September 15, 1978, that Shaffett discovered that Vicks’ loggers had cut over the property line, cutting and felling about 75 trees over an area of IV2 acres. At that time, Shaffett and Vicks discussed permission to remove the timber if Vicks paid for it.

When Vicks failed to pay him, Shaffett brought this suit for damages for trespass, asserting that the willful and intentional cutting and removal of plaintiff’s timber rendered defendant liable for civil damages in the amount of three times its market value. LSA-R.S. 56:1478.1.

Defendant responded that he had acted in good faith and that his logger had only cut and removed timber within the property line which had been pointed out to defendant by plaintiff. It is not seriously disputed that the loggers logged on the plaintiff’s land.

After trial on the merits, the District Court rendered judgment in favor of Thomas E. Shaffett against Lee Edward Vicks in the sum of $4,076.88, plus interest and costs, the measure of damages being the treble damages provided by LSA-R.S. 56:1478.-1(C). The defendant’s motion for a new trial was denied. He then suspensively appealed to this Court.

The parties are in accord that the controlling statute is LSA-R.S. 56:1478.1, which provides:

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

In the instant case, the record establishes that there are no visible ownership lines, marked boundary lines, or designated cutting area lines. The only indication of a line was the north line of the plaintiff’s tract of land, which was a survey line placed by John D. Adams, Surveyor, at the time of the plaintiff’s acquisition from Bat-son & Jones in March of 1977. The boundary line between the plaintiff’s tract and the defendant’s has never been formally fixed. There are no natural boundaries between the property; neither are there fences or artificial boundaries dividing the properties.

We think it appropriate at this point to note the remark of the Court in Harvey v. Havard, 274 So.2d 917, 923 (La.App. 1 Cir. 1973), affirmed, 287 So.2d 780 (La.1973):

“It is difficult to argue with the proposition that in determining whether a trespass has been committed, the boundary must be located with certainty.”

Although the plaintiff pointed out to the defendant the property line and defendant in turn pointed it out to the loggers, the record reflects that some of the trees on about IV2 acres of plaintiff’s land were mistakenly cut by the loggers. It is of interest to note that the plaintiff never went to observe the timber cutting despite his knowledge that the defendant had a logging crew in the area near the property line. The record shows that the defendant stopped the cutting of the trees as soon as he was told that the loggers had crossed the property line, although the loggers did go ahead and remove 70-75 timber-trees. The trial court held Vicks was in good faith, but interpreted LSA-R.S. 56:1474.1 as requiring an assessment of treble damages. We disagree with this interpretation of the statute.

We believe that LSA-R.S. 56:1478.1(A)-(C) means, for our purposes, that damages are assessed against a person who cuts and removes timber from another person’s land without the owner’s permission. The penalty of damages is levied in all such situations. The amount of the penalty depends on the circumstances of the particular timber-cutting. If the timber-cutter “wilfully and intentionally” cuts and removes the timber, he is liable for damages in “the amount of three times the fair market value” of the timber. If the timber-cutter “in good faith” cuts and removes timber “across ownership lines, marked boundary lines, or outside of designated cutting area lines,” he is liable for damages for “three times the fair market value” of the timber. If the timber-cutter “in good faith” cuts and removes timber across a property line which is not visibly designated as a demarcation line between two adjacent properties, he is only liable for the fair market value of the timber. He is not liable for triple damages. It should be kept in mind that as a punitive measure, this statute must be strictly construed; it is only when a person clearly violates its provisions that he will be assessed the severe penalty of triple damages.

We find that subsection B of the statute is not applicable, because the record establishes that Vicks’ loggers did not willfully and intentionally cut and remove timber from Shaffett’s land. We find that under subsection C defendant, being in good faith, would be liable for treble damages only if there was a visibly designated demarcation line dividing the two properties. The evidence in the record establishes beyond any question that there was no such dividing line; i. e., an experienced timber man could go from Vicks’ tract to Shaf-fett’s tract without a noticeable difference, unless he happened to see an iron stob. It appeared to be one stand of timber.

Consequently, we find that Vicks is not to be assessed for treble damages under LSA-R.S. 56:1474.1, but is liable only for the fair market value of the timber removed. For this damage, we award the plaintiff the sum of $1,358.96. We base this award on the appraisal of Gaston Lanaux, III timber manager for Crown Zellerbach Corporation, an experienced forester with a B.S. degree in Forest Management from L.S.U., who made a 100% stump count (75 stumps) and used the Doyle scale (a standard of measure for standing timber), estimating the log volume as 8,471 board feet, and the pulpwood volume as 0.45 cords, and using a price of $160/M for pine logs and of $8.00 per cord for pulpwood. Mr. Lanaux fixed a value of $1,358.96. This evidence is uncontradicted by the defendant. The trial judge also accepted this figure as the fair market value of the timber.

As to the claim of the plaintiff for damages for mental anguish and for depreciation of the property, since he neither appealed nor answered the appeal we cannot consider those items.

For the foregoing reasons, we amend the judgment to reduce the award from $4,076.88 to the sum of $1,358.96, and render judgment in favor of plaintiff, Thomas E. Shaffett, and against the defendant, Lee Edward Vicks, in the amount of One Thousand Three Hundred Fifty-eight and 96/100 ($1,358.96), plus legal interest from the date of judicial demand until paid. In all other respects the judgment is affirmed. We assess the costs of this appeal equally between the appellant and appellee.

AMENDED AND AFFIRMED.


text:
    James T. F. KAO and Merle D. Wiggins v. James J. McKENZIE.
    No. 13306.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    William P. Brumfield, Baton Rouge, for plaintiff-appellee James T. F. Kao.
    James J. McKenzie in pro per.
    Felix R. Weill, Baton Rouge, for third party defendant-appellee Merle D. Wiggins.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This suit involves property damage done to an automobile. On September 10, 1977, a vehicle operated by the appellant, James J. McKenzie, struck the rear of an automobile owned by James T. F. Kao as they were traveling on Highland Road within the City of Baton Rouge, Louisiana.

Kao brought suit against McKenzie in the City Court for the City of Baton Rouge for the damages to his vehicle which amounted to $522.08. McKenzie thereafter answered and filed a third party claim against Merle D. Wiggins, alleging the accident was due to the negligence of that third party defendant.

Prior to trial, the Kao claim against McKenzie was settled and the only matter tried was the third party demand against Wiggins. Judgment was subsequently rendered in favor of McKenzie and against Wiggins in the amount of the main demand.

Wiggins appealed that judgment to the Nineteenth Judicial District Court which thereafter reversed the action of the trial court and dismissed the third party demand against Wiggins. McKenzie now appeals the judgment of the Nineteenth Judicial District Court.

We have no jurisdiction to consider this appeal. In Crain v. Dearmond’s, 369 So.2d 1171 (La.App. 1st Cir. 1979), we considered a similar sequence of events in the appellate process. As here, a judgment of the City Court for the City of Baton Rouge was appealed to the Nineteenth Judicial District Court. After the district court had acted, an attempt was then made to appeal its action to this court. There, we stated:

“We notice ex proprio motu lack of jurisdiction.
“Article 5, Section 10 of the Constitution of 1974, provides:
“ ‘(A) Jurisdiction. Except in cases ap-pealable to the supreme court and except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of all (1) civil matters decided within its circuit and (2) matters appealed from family and juvenile courts, except criminal prosecutions of persons other than juveniles. It has supervisory jurisdiction over cases in which an appeal would lie to it. .
“ ‘(B) Scope of Review. * *
“Section 16 of Article 5 of the constitution provides:
“ ‘(A) Original Jurisdiction. * * *.
“ ‘(B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law.’
“C.C.P. Article 4833, states:
U * * *
“ ‘B. The appeal from a city court when the amount in contest is one thousand dollars or less exclusive of interest, shall be returnable to the district court of the district in which the city is located.
“ ‘The appeal from a city court when the amount in contest exceeds one thousand dollars, exclusive of interest, shall be returnable to the court of appeal of the circuit in which the city is located. Amended by Acts of 1976, No. 84, § 1.’ ”
“As the amount involved in this matter is less than one thousand dollars, exclusive of interest, and in accordance with the constitutional and statutory provisions above quoted, this court has no jurisdiction to hear this appeal. There is but one appeal of right in matters of this nature. The defendant cast in judgment of the city court appealed to the Nineteenth Judicial District Court. The unsuccessful party in that appeal has no right to appeal to this court and this court has no jurisdiction to hear this so-called appeal.
“Accordingly, this matter is dismissed at appellant’s cost.”

More recently, in Caire v. Stassi, 379 So.2d 1056 (1980), our Supreme Court affirmed that in cases which originate in a city court, involving $1,000.00 or less, the appeal is to the proper district court and a court of appeal has no appellate jurisdiction. Therefore, the appeal to this court is dismissed at appellant’s cost.

Appellant has also requested in his brief that, if this court has no jurisdiction to consider this appeal, we treat this filing as a writ application. However, as provided in Article 5, Section 10 of the 1974 Louisiana Constitution, this court has supervisory jurisdiction only over cases in which an appeal to it would lie. Therefore, we have no jurisdiction over this case on any basis.

APPEAL DISMISSED.

      . Effective January 1, 1980, an appeal from a judgment rendered by a parish court or by a city court shall be taken to the court of appeal. See La.C.C.P. art. 5001 (Act 46 of 1979).


text:
    RIVER LANDS FLEETING CORPORATION et al. v. ASHLAND PLANTATION, INC. and Chevron, U. S. A., Inc.
    No. 13309.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      John M. McCollam, New Orleans, for plaintiffs-appellants River Lands Fleeting Corp., MAI Frances Doles, Trustee, Etc., Benj amine R. Badley Rush and Crutcher-Tufts Corp.
    William Hugh Mouton, Lafayette, Oliver P. Stockwell, Lake Charles, for defendant-appellee Chevron, U. S. A.
    R. Gordon Kean, Jr., Baton Rouge, for defendant-appellee Ashland Plantation, Inc.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is a petitory action involving adverse claims of ownership of real property situated along the Mississippi River.

The suit was brought in the Nineteenth Judicial District Court for the Parish of East Baton Rouge by several landowners who claim title to Sections 61 and 62, Township 6 South, Range 1 West and Sections 37 and 38 of Township 6 South, Range 2 West, all of which property is supposedly located in East Baton Rouge Parish. The chain of title by which the plaintiffs claim ownership is also set out in the petition.

The pleadings further allege that Ash-land Plantation, Inc., and its mineral lessee, Chevron U.S.A., Inc. are, or may be, asserting title to a portion of the property under certain acts of conveyance and under judgment in that suit captioned Oliver v. Milliken & Farwell, Inc., 290 So.2d 738 (La.App. 1st Cir. 1974), which was originally tried in the Eighteenth Judicial District Court for the Parish of West Baton Rouge and later affirmed by this court.

The defendants, Ashland and Chevron, filed the declinatory exception raising the objection of improper venue. They claim the property in which the plaintiffs are apparently asserting an interest is actually located in West Baton Rouge Parish. (La. C.C.P. arts. 80(1), 3652). The district court, in written reasons for judgment, maintained the exception and rendered judgment dismissing plaintiffs’ suit. Plaintiffs appeal. We find for the reasons stated hereafter, the judgment must be reversed and the matter remanded to the district court for the taking of additional evidence.

This issue for decision resolved itself into a determination of the proper boundary between the parishes of East and West Baton Rouge. The appellants maintain the property to which they claim ownership is located within East Baton Rouge Parish because the actual boundary between those two parishes is the bed of the Mississippi River as it was located when the two parishes were created in 1807 and 1811. The appellees maintain the thread of the river in its present location is the parish boundary and the land in question, is, therefore, within the Parish of West Baton Rouge.

After argument in the district court, the trial judge concluded the present thread of the river is the proper point of division and the appellants’ suit was brought in an improper jurisdiction. His judgment was based primarily upon certain decisions of the United States Supreme Court which held, as between states with a river as a common boundary, where a gradual accretion of the river occurred the boundary would continue to be the thread of the river wherever it moved, but where the movement of the river took place as a result of sudden avulsion the former bed of the abandoned channel would remain as the boundary. Typical of those decisions is the case of Nebraska v. Iowa, 143 U.S. 359, 367, 12 S.Ct. 396, 399, 36 L.Ed. 186 (1892) in which that court said:

“The result of these authorities puts it beyond doubt that accretion on an ordinary river would leave the boundary between two states the varying center of the channel, and that avulsion would establish a fixed boundary, to-wit, the center of the abandoned channel.”
See also Mississippi v. Arkansas, 415 U.S. 289, 94 S.Ct. 1046, 39 L.Ed.2d 333 (1974).

We conclude, however, state law must be applied in this case rather than the federal common law set out in the decisions just cited. In Fitzsimmons v. Cassity, 172 So. 824 (La.App.2d Cir. 1937), it was recognized the federal cases which relied upon those principles involved interstate boundary litigation, not present there or here. Recent decisions of the United States Supreme Court have continued to be cognizant of the applicability of state law where riparian boundaries are in dispute unless an overriding federal interest is present. See State Land Board v. Corvallis Sand and Gravel Company, 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977), and the authorities cited therein.

In Comegys v. Stanolind Oil and Gas Company, 227 La. 657, 80 So.2d 110 (1955), the Supreme Court of this state reviewed our jurisprudence in such matters. It summarized as follows:

“We have consistently held that, where the boundary lines of adjoining parishes have been previously defined by statute, though never established by actual survey on the ground, and where issue arose between two parishes as to the true location of the boundary, the provisions of Act 40 of 1855 were all-exclusive to the extent that the procedure outlined therein must first be resorted to and be exhausted as a remedy before recourse can be had in the courts. [Citations omitted.]
“Whenever an issue arose between adjoining parishes over the location of their statutory boundary lines and which had never been defined on the ground; or, where there arose a contest between landowners adjoining said boundary line, due to an uncertainty as to which court should entertain jurisdiction thereof, we have consistently held that the consideration and acceptance of landowners in that area adjoining the boundary line, and that of parish officials and official agencies, including proof of the levying and collection of taxes, was admissible proof, and that the judge before whom the suit has been originally instituted should hear and consider all relevant facts for the purpose of determining the extent of the territorial jurisdiction over which he presides. Our jurisprudence in that respect is founded on the maxim ‘L’erreur commune fait le droit’.” [Emphasis added.]

The record here contains no evidence of the nature suggested in Comegys nor evidence the parish boundaries have been officially fixed as provided for by LSA R.S. 50:221 et seq. And, even if the parish boundaries have been officially established, evidence is necessary to show where the subject property is situated in relation to those boundaries. The decisions of this court in Oliver v. Milliken & Farwell, Inc., supra, and its sequel, Oliver v. Milliken & Farwell, Inc., 361 So.2d 1248 (La.App 1st Cir. 1978), assumed the property in question was in West Baton Rouge Parish; the actual issue of its location was not raised. We find there is no other evidence of which we can take judicial notice which is decisive of the question. The cases cited by counsel as regards judicial notice are inapposite. As previously noted, there was no evidentiary hearing when this matter was heard in the trial court. We cannot assume facts not in the record.

For these reasons, the judgment appealed is reversed and this case is remanded to the district court for the taking of evidence consistent with this opinion. Assessment of costs is to await final disposition in the trial court.

REVERSED AND REMANDED.


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    AAA TIRE & EXPORT, INC. v. BIG CHIEF TRUCK LINES, INC.
    No. 13311.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Michael R. Connelly, Baton Rouge, for plaintiff-appellant AAA Tire and Export, Inc.
    Larry M. Roedel, New Orleans, for defendant-appellee Big Chief Truck Lines, Inc.
    Joseph R. Raggio, Baton Rouge, for defendant-appellee in third party demand.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit on an open account filed by AAA Tire and Export, Inc. against Big Chief Truck Lines, Inc. for the sum of $4,765.07. The defendant filed a third party demand against Adam Dixon, Dixon and Company, Inc. and Dixon Trucking Company, seeking to be indemnified for any sums it is required to pay on the principal demand.

The issue on appeal is whether Adam Dixon, terminal manager for Big Chief’s Baton Rouge operation, had either actual or apparent authority to buy tires for Big Chief from AAA. The trial judge held he did not and dismissed AAA’s suit. This appeal has been timely perfected.

AAA, a Florida Corporation which made over-the-phone sales of truck tires and tubes to numerous trucking concerns, made its first sales call to Big Chief in February, 1977. Big Chief was an interstate and intrastate carrier of principally petroleum products. The company, however, owned no trucks or trailers of its own. It leased trucks and trailers from other firms, which handled most of their own maintenance and expense costs.

Robert E. Taylor, president of AAA, obtained Big Chief’s name from a Dunn & Bradstreet card which listed Big Chief as a truck hauling company and therefore a potential customer of AAA. Taylor did not know what type of hauling company Big Chief was, but he apparently thought the company would be in need of tires. Dunn and Bradstreet also listed Adam Dixon’s name, but the evidence is unclear as to whether Dixon’s position with Big Chief was printed on the card. Taylor talked to Dixon on the phone and made his sales pitch. Dixon ordered a number of tires and tubes and requested delivery at Big Chief’s Baton Rouge terminal.

Dixon also testified that he told either Taylor or the tire shipper or both that the tires should be addressed to Dixon and Company, a truck leasing firm Dixon operated on the side. Taylor denied this. Dixon also supplied Taylor with two credit references, one from Bossier City Bank and the other from a local tire company. Bossier Bank handled bank business for Dixon and his firm, but did not have an account with Big Chief. Dixon testified that he did business with the local tire company, but that he only bought tires for his own company’s trucks. Taylor turned the credit information over to a factor, who supposedly checked the references and approved the credit. The tires were shipped on credit with no down payment, and invoices were later mailed to Big Chief in Baton Rouge. Payments were due in two monthly installments. About a month later, and before any payment had been made on the first shipment, Taylor made a second sales call to Dixon, who ordered another batch of tires and tubes.

All tires were eventually delivered but no payments were made. Dixon said some tires were placed on his own trucks but he did not know how the other tires were used. Dixon’s testimony was confusing as to whether any of the tires he ordered were ever placed on trailers which had been leased by Big Chief. He said some of the tires arrived with the words Dixon and Company written on them in yellow color. Dixon has since filed for personal bankruptcy, but AAA was not listed as a creditor.

Stewart C. Bushong, owner and chairman of the board of Big Chief, testified that Dixon had no actual authority to buy tires on behalf of Big Chief. Bushong explained that since Big Chief did not own any trucks, it rarely if ever had the need for tires or tubes to use on the trucks it leased. If a tire on a truck went flat, the lessor was usually called in to make a replacement. Bushong did not recall any time that Big Chief personnel made tire replacements on trucks or trailers leased by the company.

Bushong also testified that Dixon’s duties and responsibilities were outlined specifically in a letter Bushong wrote to Dixon when Dixon was hired as terminal manager. The letter gives Dixon authority “to operate and manage our Baton Rouge terminal and over see [sic] the expansion of this facility as our resources permit.

“Specifically, these responsibilities include generation of new accounts and other sales activity, service, lease operator management, dispatcher, maintenance and the required on-site accounting and support for these operations.”

The plaintiff claims on appeal that Dixon had either actual or apparent authority to buy the tires and that Big Chief is therefore liable for the purchase price. The law of agency in Louisiana has its roots in the Civil Code, La.C.C. arts. 2985-3023, but the jurisprudence regarding actual and apparent agency has developed to a large extent outside of the code.

An actual agency is a contract between the principal and agent created either expressly or by implication. Broadway v. All-Star Insurance Corporation, 285 So.2d 536, (La.1973); Pailet v. Guillory, 315 So.2d 893 (La.App. 3rd Cir. 1975); Ebert v. Babin, 200 So.2d 672 (La.App. 3rd Cir. 1967); Busby v. Walker, 84 So.2d 304 (La.App. 2nd Cir. 1955). See also Dart Distributors, Inc. v. Foti Enterprises, Inc., 271 So.2d 705 (La. App. 1st Cir. 1972).

An agency is created expressly by the oral or written agreements between the parties. It is created by implication when, from the nature of the principal’s business and the position of the agent within that business, the agent is deemed to have permission from the principal to undertake certain acts which are reasonably related to the agent’s position and which are reasonable and necessary concomitants of the agent’s express authorization. Implied authority connotes permission from the principal for the agent to act, though that permission is not expressly set forth orally or in writing. Generally, one should look from the viewpoint of the principal and the agent to determine whether the agent has implied authority.

The concept of apparent authority only comes into play when the agent has acted beyond his actual authority and has no permission whatsoever from his principal to act in such a manner. The principal will be bound for such actions if he has put his agent in such a position or has acted in such a manner as to give an innocent third person the reasonable belief that the agent has authority to act for the principal. The facts and circumstances of each case must be examined to determine the reasonableness of the third party’s belief. One must look from the viewpoint of the third person to determine whether an apparent agency has been created. In transactions between businessmen, the nature of the business and the customs and the usages within the trade can be important factors to be considered.

The trial court did not address in detail the argument that Dixon had actual authority, either express or implied, to order the tires. The record, particularly the letter outlining Dixon’s duties and responsibilities, convinces us that Dixon had neither express nor implied authority to buy tires from AAA. Although the letter from Bushong lists “maintenance” as one of Dixon’s responsibilities, Dixon was well aware that maintenance did not include purchasing tires for Big Chief because Big Chief did not own any trucks for which tires would be needed. Both Bushong and Dixon were in agreement that Dixon had no actual authority to buy the tires. Had Big Chief been a trucking firm which purchased and maintained its own trucks, our result would probably be different, because in that case Dixon would certainly have had the implied authority as terminal manager to purchase tires. But such is not the case, and the trial judge was correct in deciding that no actual authority existed.

The issue is thus narrowed down to the question of whether Dixon had apparent authority to purchase the tires. We must survey the situation from the viewpoint of AAA to determine whether Taylor was reasonably justified in his belief that Dixon had authority to purchase the tires for Big Chief. Taylor had no independent knowledge of Big Chief’s existence or operation outside of the four corners of the Dunn & Bradstreet cards which he used to locate customers. The two credit references given to Taylor by Dixon were references for Dixon’s independent companies, and not for Big Chief. Had those credit references been adequately checked by AAA’s factor, there may never have been tire sales made by AAA to Dixon.

Taylor’s contact with Dixon at Big Chief in early February, 1977, was the first time anyone from AAA had ever contacted anyone involved with Big Chief. No effort was made to determine the financial condition of Big Chief, nor was any attempt made to determine whether Dixon had authority to purchase the tires. The only action of Big Chief upon which Taylor could possibly have relied was the act of placing Dixon in charge of the Baton Rouge operation as terminal manager. This alone, however, was insufficient to give Taylor a reasonable belief that Dixon had authority to purchase tires for his principal, Big Chief. The trial court correctly determined that there was no apparent authority on the part of Mr. Dixon.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed. AAA will bear the costs of this appeal.

AFFIRMED.


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    Fred BOSLEY v. Joyce and Gary HEBERT, d/b/a the Greater Plaquemine Post.
    No. 13313.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Raymond L. Simmons, Baton Rouge, for plaintiff-appellant Fred Bosley.
    Houston C. Gascon, III, Plaquemine, for defendant-appellee Joyce and Gary Hebert, d/b/a The Greater Plaquemine Post.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Fred Bosley appeals the dismissal of his suit for defamation against Joyce and Gary Hebert, d/b/a The Greater Plaquemine Post. He also complains of the trial court’s failure to issue written or oral reasons for judgment.

This case arises out of two articles which were published in The Greater Plaquemine Post. Appearing in the February 24, 1977 edition was the following statement:

Booked last week for theft were Fred Bosley, 32, and Darryl Green, 20, both of Plaquemine. Bosley was charged with “theft, by issuing worthless checks.”

The second article complained of appeared in the next edition of the weekly newspaper. It was entitled “Post Article Was in Error” and consisted of the following:

An article in last week’s POST incorrectly identified Fred Bosley as the man arrested by sheriff’s deputies for theft by issuing worthless checks.
Bosley was booked for theft. Booked for theft by issuing worthless checks, according to a report by Sheriff Jessel Our-so, was Darryl Green.

Although denied by plaintiff, it was conclusively proved he was arrested and booked for theft. He was accused by his mother-in-law of theft of a washing machine. The charges against him were terminated before trial.

Louisiana jurisprudence lists the following elements of a cause of action for defamation: (1) defamatory words, (2) publication, (3) falsity, (4) malice, actual or implied, and (5) resulting injury. Slocum v. Webb, 375 So.2d 125 (La.App. 3d Cir. 1979); Trahan v. Ritterman, 368 So.2d 181 (La. App. 1st Cir. 1979).

It is well established that truth or substantial truth is a defense to a defamation suit. Rosen v. Capital City Press, 314 So.2d 511 (La.App. 1st Cir. 1975).

Since it is true plaintiff was arrested and booked for theft, he cannot recover damages for the publication of that fact.

The only falsity contained in the articles was that the theft was by issuing worthless checks. Plaintiff has not shown that any humiliation, mental suffering or injury to his reputation was caused by this inaccuracy, apart from that caused by the publication of his arrest for theft. Plaintiff testified that following the publication of the articles he had been shunned by various people. But there is no evidence which connects this ostracism with the fact that it was thought his arrest was for theft by issuing worthless checks instead of theft by some other means. O’Neil Bosley, plaintiff’s brother, was the only other witness who testified relative to the effect of the newspaper articles on his brother. He testified he heard only members of his family and his wife’s family discussing the first article. He stated they all knew it was not true because they knew plaintiff had never had a checking account. Our review of the evidence convinces us plaintiff failed to prove he was injured by the false statement in the first article. Absent competent evidence concerning injury, there is no support for an award in this case. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

The trial court, after taking the case under advisement, rendered judgment for defendants without giving any reasons other than the statement in the judgment that “plaintiff has failed to carry the burden of proof by a preponderance of the evidence.” Plaintiff admits his request for written reasons filed after rendition of judgment was not timely. Charles Ragusa & Son v. Community State Bank, 360 So.2d 231 (La.App. 1st Cir. 1978); C.C.P. art. 1917. However, he argues that a judgment rendered without any statement of reasons is unconstitutional. In support, plaintiff cites Caston v. Argonaut Insurance Company, 244 So.2d 320 (La.App. 1st Cir. 1970), which relied on Article 7 § 1 of the 1921 Constitution. This constitutional provision required “judges of all courts [to] refer to the law and adduce the reasons on which every definitive judgment is founded.” We note this provision is no longer in effect as it was not included in the 1974 Constitution. Nor do we think there has been a violation of the due process clause of the 1974 Constitution. Due process is afforded by Code of Civil Procedure article 1917, which gives a litigant the opportunity to obtain written reasons for judgment. After failing to take advantage of this provision, plaintiff cannot be heard to complain.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


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    ADSERV CORPORATION v. Hubert L. LINCECUM.
    No. 13315.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Warren L. Mengis, Baton Rouge, for plaintiff-appellant Adserv Corp.
    Fernin F. Eaton, Baton Rouge, for defendant-appellee Hubert L. Linceeum.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit for defamation filed by Adserv Corporation against Hubert L. Linceeum. From a judgment sustaining defendant’s peremptory exception of no cause of action, plaintiff has appealed, and defendant has answered the appeal.

In its petition plaintiff alleges:

“3.
“On or about May 30, 1979, defendant, HUBERT L. LINCECUM, voluntarily appeared before the House Appropriations Committee of the Louisiana Legislature, ostensibly for the purpose of testifying to factual information concerning the Louisiana State Employees’ Group Insurance, which program is managed by your petitioner.
“4.
“During the course of defendant’s testimony before the said House Appropriations Committee, defendant defamed your petitioner by making false, misleading and totally inaccurate statements concerning petitioner’s management of the Louisiana State Employees’ Group Insurance Program.
5.
“More particularly, defendant alleged that state employees were being ‘ripped off’ by the group insurance program managed by your petitioner, as well as numerous other derogatory and defamatory remarks concerning your petitioner, the substance of which remarks will be proved upon the trial of this matter.
“6.
“Petitioner further alleges that the said statements made by defendant were false, malicious, and were made by defendant with knowledge of their falsity or with reckless disregard for the truth of same for political reasons.
“7.
“The said false statements made by defendant were widely disseminated, being the subject of at least two (2) newspaper articles in the Baton Rouge State Times and Morning Advocate on May 30th and May 31st, 1979 respectively, copies of which newspaper articles are annexed hereto and made a part hereof by reference; additionally, the said defamatory statements concerning your petitioner were the subject of a television news story broadcast by WBRZ-TV, Channel 2 in Baton Rouge, resulting in their widespread dissemination.
“8.
“Petitioner has always conducted its business operations in a fair and professional manner to the best of its ability and has enjoyed an excellent reputation for honesty and integrity in its field.
“9.
“The said defamatory statements referred to hereinabove were made by defendant with actual malice; shortly before making the said statements, defendant advised the general manager of your petitioner, ‘You are going to get a lesson in Louisiana politics.’ ”

To the petition defendant filed various exceptions. He declined the jurisdiction of the court, arguing jurisdiction was constitutionally delegated to the legislature. He filed the dilatory exception of prematurity because there were ongoing legislative and criminal investigations. Additionally, he filed exceptions of vagueness, lack of procedural capacity and nonjoinder of necessary parties. Lastly he filed the peremptory exceptions of no cause of action, nonjoinder of an indispensable party, and no right of action or lack of interest in plaintiff to institute the suit. In addition to defendant’s exceptions, plaintiff filed a motion for security for costs.

The trial judge overruled the declinatory exception of lack of jurisdiction over the subject matter; took the dilatory exception of prematurity and the motion for security for costs under advisement; maintained the peremptory exception of no cause of action and dismissed plaintiff’s suit; and ruled moot the exception of no right of action and failure to join indispensable parties.

Defendant has answered the appeal as to those rulings of the trial court which either overruled exceptions, took them under advisement, or found them moot.

NO CAUSE OF ACTION

The peremptory exception of no cause of action is tried on the face of the petition, and “no evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La.C.C.P. art. 931.

The purpose of the exception of no cause of action is to determine whether under the allegations of the petition the law affords any remedy for the particular grievance complained of. Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977); Guillory v. Nicklos Oil and Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975); American Bank & Trust Company v. French, 226 So.2d 580 (La.App. 1st Cir. 1969). And in determining whether the petition states a cause of action, every reasonable interpretation must be afforded its language so as to maintain the sufficiency of the petition and to afford plaintiff his day in court. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).

Thus, with these well recognized rules in mind, we now proceed to determine whether the instant petition states a cause of action.

Because of public necessity and policy, certain utterances, communications and publications are afforded a privilege as defense against an action for libel and slander. This privilege is either absolute or qualified.

“An absolutely privileged communication is one in respect of which * * * no remedy can be had in a civil action, however hard it may bear upon a person who claims to be injured thereby, and even though it may have been made maliciously, and is false.” 50 Am.Jur.2d Libel and Slander § 193 (1970).

“Conditional or qualified privileged is based on public policy. It does not change the actionable quality of the words published, but merely rebuts the inference of malice that is imputed in the absence of privilege, and makes a showing of falsity and actual malice essential to the right of recovery.
“A qualified or conditionally privileged communication is one made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right, or interest. The essential elements thereof are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty. The transmitter must have an interest or duty in the subject matter, and the addressee must have a corresponding interest or duty, but such duty may be moral or social, rather than a legal one. The defense of qualified privilege does not extend to a publication to the general public.
“In determining whether conditional privilege exists, the nature of the subject, the right, duty, and interest of the parties, the time, place, and circumstances of the occasion, and the nature, character, and extent of the communication should be considered. It has been held that a conditional privilege to reveal information to protect a sufficiently important interest has its origin in, and is governed by, the rule of good sense and customary conduct of people motivated by good will and proper consideration for others, including due consideration for the subject being informed about as well as the recipient being protected.” (Footnote omitted.) 50 Am.Jur.2d Libel and Slander § 195 (1970).

Louisiana recognizes that judicial allegations are not libelous and actionable unless shown to have been false, maliciously made, and uttered without probable cause. Thus only a qualified privilege is afforded. Waldo v. Morrison, 220 La. 1006, 58 So.2d 210 (1952); Lescale v. Schwartz, 118 La. 718, 43 So. 385 (1907) and 116 La. 293, 40 So. 708 (1906).

The same qualified privilege is afforded a witness in a judicial proceeding. Oakes v. Walther, 179 La. 365, 154 So. 26 (1934).

We conclude that the same qualified privilege must be afforded a witness appearing before a legislative committee, as long as the statements were made without malice, that is, without knowledge that they were false, or without reckless disregard of whether they were false or not, and that they be material and relevant to the inquiry.

The petition alleges that the statements made by defendant were made “with knowledge of their falsity or with reckless disregard for the truth of same for political reasons” and were made by defendant with actual malice. Since these allegations, if proved, would defeat the qualified privilege, the trial judge was in error in sustaining the exception of no cause of action.

JURISDICTION OVER SUBJECT MATTER

In answering the appeal defendant argues that the trial judge was in error in overruling its declinatory exception of lack of jurisdiction over the subject matter. We find an absence of argument by the defendant as to this particular exception.

Jurisdiction is defined by La.C.C.P. art. 1 as “the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” Additionally, La.C.C.P. art. 2 defines jurisdiction over subject matter as “the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” We cannot conceive of the trial court being without jurisdiction to adjudicate the controversy between these parties. Therefore, we find no error on the part of the trial judge in overruling the exception.

The exceptions that were taken under advisement or ruled moot, including the motion for security for costs, should be disposed of by the trial judge on the remand of this case.

Therefore, for the above and foregoing reasons, the judgment of the trial court insofar as it overruled the exception of lack of jurisdiction over the subject matter is affirmed, and insofar as it sustained the exception of no cause of action is reversed. All other exceptions and motions pending in the trial court are to be disposed of on remand. The costs of this appeal are to be paid by defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.