author: GULOTTA, Judge.

text:
    SUCCESSION OF Elizabeth Spreckles, Wife of/and Antoine ROVIRA v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS.
    No. 12963.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Sept. 24, 1982.

      Pilié & Pilié, M. Arnaud Pilié, New Orleans, for plaintiffs-appellees.
    Phelps, Dunbar, Marks, Claverie & Sims, Charles M. Lanier, Danny G. Shaw, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

The co-administrators of the consolidated Successions of Elizabeth Spreckles, wife of/and Antoine Rovira filed this suit against the Dock Board for the unlawful taking without compensation of approximately 43 acres of plaintiffs’ property for the construction of the Mississippi River Gulf Outlet (MRGO). From a judgment in favor of plaintiffs on the issue of liability, the Dock Board appeals. We affirm.

Although the Dock Board’s brief specifies twenty-one errors by the trial judge, the arguments on appeal may be grouped into the following issues:

1) Whether the Succession representatives are the proper parties to bring the action;

2) Whether the United States, rather than the Dock Board, is the proper party defendant;

3) Whether the subject property was dedicated to public use, thereby barring plaintiffs’ claim;

4) Whether mandamus is a proper remedy;

5) Whether plaintiffs’ suit has prescribed; and,

6) Whether the United States has gained ownership or a servitude over the property by acquisitive prescription.

BACKGROUND

In 1861, Antoine Rovira purchased 97.97 acres of marsh land in Orleans Parish. Antoine died intestate in 1871, survived by his wife Elizabeth and their eight children. In Antoine’s succession Elizabeth was appointed administratrix of the succession and confirmed as natural tutrix. Although an inventory was taken and the final account and tableau of distribution were homologat-ed, no judgment of possession was rendered.

Elizabeth died in 1903 but her succession was not opened until 1978.

In the Succession of Belle Rovira, one of Antoine and Elizabeth’s children, a petition for partition of the property was filed by parties claiming to be the sole surviving heirs of Antoine and Elizabeth, and judgment was rendered in 1911 recognizing the petitioners as joint owners, decreeing a partition by licitation of the property, and ordering a private sale. One tract of land, which does not concern us, was subsequently sold. The subject property, however, was not sold.

The property, which had been assessed in the name of “Heirs of A. Rovira and Wife”, was adjudicated to the City of New Orleans for non-payment of 1921 and 1929 taxes. The property was redeemed on January 23, 1957, and the redemption was registered in the conveyance office on June 22, 1960.

Between 1942 and 1944, the United States Corp of Engineers constructed the Gulf Intracoastal Waterway. Pursuant to a city ordinance, the City of New Orleans conveyed to the United States a perpetual servitude affecting 21.3 acres of plaintiffs’ property through which the waterway was constructed.

In 1956, the United States Congress authorized the construction of the Mississippi River Gulf Outlet (MRGO) and required that “local interests” furnish free of cost to the United States all lands, easements, rights-of-way and spoil disposal areas for the construction of the waterway. Pursuant to the State’s designation of the Dock Board as the agency to furnish easements, the City granted rights of ingress and egress over the property for the project, and the Dock Board, on May 28, 1958, conveyed the right-of-entry to the United States.

In 1957, the construction of the MRGO began and the project was opened to navigation on July 25, 1963. The MRGO follows the route of and incorporates the Gulf In-tracoastal Waterway across the subject property. A total of 38.48 acres of plaintiffs’ property is occupied and used for the channel of the combined GIWW and MRGO, and an additional 4.42 acres has been used as permanent spoil disposal area for dredged materials. The MRGO was constructed by and is operated solely by the United States.

Neither the Dock Board, the City, nor the United States ever instituted proceedings to expropriate any portion of plaintiffs’ property, and no remuneration has been made to the heirs for the taking.

On June 16, 1978, the “Succession of Elizabeth Spreckles, widow of Antonio (Antoine) Rovira” was opened and consolidated with the re-opened “Succession of Antonio Rovira”. Edwin J. Rovira, Jr. and Witham Dufor, the co-administrators, thereafter filed the instant suit against the Dock Board seeking compensation for the property taken. From the trial court’s judgment in favor of plaintiffs on the issue of liability, defendant has appealed.

PROPER PARTY PLAINTIFF

Defendant contends the co-administrators are not the proper parties-plaintiff and the Rovira-Spreckles heirs are indispensable parties. According to defendant, the appointments of the co-administrators in 1978 were null and void since Antoine’s succession was closed over 100 years earlier and the property has long since been distributed to and accepted by the Rovira heirs who were put into possession of the subject property by the judgment of partition in 1911. Defendant argues, therefore, that the Rovira heirs are the only parties who can assert the action or, alternatively, are indispensable parties who must be joined in the instant suit. We disagree.

Although it may be true that the decen-dants of Antoine Rovira and Elizabeth Spreckles have considered themselves as owners of the subject property by their actions through the years, the heirs have never been recognized as owners of the property by a judgment of possession in the successions of Antoine and Elizabeth. Antoine’s succession, though opened, never culminated in a judgment of possession. Elizabeth’s succession was not opened until 1978, when plaintiffs in this suit were named as co-administrators. Although a judgment of partition recognizing certain parties as joint owners of the subject property was rendered in the succession of Mrs. Belle Arnoult in 1911, that judgment does not recognize those parties as the sole and only heirs of decedents.

LSA-C.C.P. Art. 3393(B) provides:

“B. After tacit or express acceptance by the heirs or rendition of a judgment of possession by a court of competent jurisdiction, if other property is discovered, or for any other cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be opened or reopened, as the case may be, regardless of whether or not, theretofore, any succession proceedings had been filed in court. The court may appoint or reappoint the succession representative, if any, or may appoint another, or new, succession representative. The procedure provided by this Code, for an original administration, shall apply to the administration of successions tacitly or expressly accepted by heirs and in successions where a judgment of possession has been rendered, in so far as same is applicable. C.”

(Amended by Acts 70, No. 644, Section 1.) Because no judgment of possession was rendered in Antoine’s succession, and Elizabeth’s succession had not been opened before 1978, we conclude the co-administrators of both successions were proper parties, as succession representatives, to file this suit. See LSA-C.C.P. Art. 685.

We are not persuaded to conclude otherwise by the decision of our brothers on the First Circuit in Danos v. Waterford Oil Company, 225 So.2d 708 (La.App. 1st Cir. 1969). In that case, the court held the appointment of an administrator invalid where the heirs had exercised ownership by their unqualified acceptance of the succession property and no judgment of possession had been rendered. The Danos court concluded that LSA-C.C.P. Art. 3393 applied to “re-opened” successions and the succession in the Danos case had never been opened.

Defendant’s reliance on Danos is misplaced. When the Danos decision was rendered in 1969, LSA-C.C.P. Art. 3393 clearly applied only to “re-opened” successions. However, by amendment in 1970 the statute was changed to apply to “opened” or “re-opened” successions. Accordingly, under the present wording of the statute, the succession representative is the proper party to assert a claim in an opened or reopened succession where good cause has been shown. We point out further that we question the result reached in the Danos decision and, therefore, do not choose to follow it.

Moreover, as a matter of judicial economy, the filing of the instant action by the succession representatives is the most prudent means of assuring the interests of all the Rovira heirs are protected.

PROPER-PARTY DEFENDANT

We likewise reject defendant’s argument that the Dock Board is not the proper-party defendant.

In response to the argument that the United States is the proper party or an indispensable party, the trial judge concluded that the Dock Board had been designated by the State to furnish to the United States land, easements and rights-of-way for the construction “free of cost to the United States .. .. ” In reasons overruling the exceptions, the trial judge stated:

“These exceptions were overruled because the Court feels that were the Corps of Engineers named as a defendant it would simply call the Dock Board under the indemnity agreement existing between those parties then stand aside and let the litigation proceed between the parties presently before the Court.”

It is clear from the documents ordering and empowering the Dock Board to acquire the rights-of-way that the Dock Board is the public body that was the “taker” of the land used in construction. The instant suit is a claim for compensation for the lands taken. The dispute is between plaintiffs and the Dock Board as “taker”. It is of no moment that the United States, as ultimate recipient of the lands taken, constructed the waterway and now operates it. It is the Dock Board, not the United States, that must respond to the claim asserted by plaintiffs.

LSA-C.C.P. Art. 641 defines indispensable parties as "... those whose interests in the subject matter are so interrelated and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.”

Defendant relies, in support of its contentions, on Haeuser v. Board of Commissioners of the Port of New Orleans, 170 So.2d 728 (La. App. 4th Cir. 1965), and Vuljan v. Board of Com’rs of Port of New Orleans, 170 So.2d 910 (La.App. 4th Cir. 1965). We distinguish these cases. In Haeuser, plaintiff-landowners sought damages resulting from the denial of access to their property caused by the construction of the MRGO. In Vuljan, plaintiff sought damages for the destruction of his oyster bed leased within a mile of the MRGO. In both cases, this court held that plaintiffs’ damages did not result from the “taking” by the state but resulted from the construction of the MRGO, (over which the United States had sole jurisdiction and control) and that the United States was the proper-party defendant.

In our case, plaintiffs’ claim is not for property damage occasioned by construction, but for compensation for the “taking” of the property. Because the Dock Board was the body designated by the state to acquire the rights-of-way and easements, we conclude the Dock Board is the proper-party defendant and the United States is not an indispensable party.

DEDICATION TO PUBLIC USE

In brief and oral argument, plaintiffs concede that the 21.8 acres taken for the GIWW has been continuously used as a public waterway in excess of thirty years, and they do not assert any claim for compensation for that acreage.

In connection with the claim for the remaining 21.60 acres, the Dock Board contends that even if plaintiffs can bring an action, they are not entitled to compensation since the land taken for the GIWW and MRGO has been dedicated to public use.

In support of its position, the Dock Board relies on Emery v. Orleans Levee Board, 207 La. 386, 21 So.2d 418 (1945) and Wood v. Bd. of Com’rs. for Pontchartrain, Etc., 338 So.2d 744 (La.App. 4th Cir. 1976), writ denied, 341 So.2d 5 (La. 1977). In the cited cases, property used for public construction had been adjudicated to the state for unpaid taxes and had been redeemed by the tax debtors. In both cases, the courts held that the property had been dedicated for public purposes and removed from commerce, and, since the property in dispute had not been privately owned at the time it was applied to public use, plaintiffs were not entitled to compensation for the taking.

The Dock Board argues in our case the City had acquired the property for non-payment of taxes for the years 1921 and 1929 and was the proper party to grant the right of entry to the Dock Board who in turn conveyed it to the United States in 1957-58. According to the Dock Board, the subsequent redemption of the property by the Rovira heirs, which was registered on June 22, 1960, is without effect. We disagree.

Our property was adjudicated by tax sale to the Third District Land Company for non-payment of taxes due the city for 1913. By act of sale on August 1, 1917, the Third District Land Company conveyed the property to Houston L. Wood, husband of one of the heirs of Antoine Rovira, which act of sale was registered in the conveyance office. In Dufour v. Wood, 346 So.2d 863 (La.App. 4th Cir. 1977), we held that Wood had redeemed the property. Implicit in our decision in Dufour, is a finding that Houston L. Wood was, at all pertinent times subsequent to 1917, the duly registered owner of the property according to the conveyance records. According to the public records then, the property was under private ownership when the request of entry was granted by the City to the Dock Board. Clearly, the dedication doctrines of the cited eases do not apply to our case.

We recognize that by an instrument registered in the conveyance office in 1932, the property was adjudicated to the City for non-payment of 1929 taxes. Nonetheless, even though the redemptions of this tax sale and another for non-payment of taxes in 1921, were not recorded until 1960, Houston Wood appeared as a record owner in 1957 and 1958. As pointed out by the trial judge in his written reasons, title to the property was in a “state of utter confusion” and the Dock Board was proceeding at its own risk in acquiring property whose title was so clouded.

It is well settled that the conveyance records constitute notice to third-party purchasers of ownership in the registered owner. Wells v. Joseph, 234 La. 780, 101 So.2d 667 (La. 1958); Meares v. Pioneer Production Corp., 382 So.2d 1009 (La.App. 3rd Cir. 1980), writs refused, 392 So.2d 667 (1980). In our case, an examiner of the public records would have found Houston Wood as a registered owner according to the conveyance records. Under such circumstances, we cannot conclude a dedication was made by the City to the Dock Board.

LIBERATIVE PRESCRIPTION

Alternatively, defendant asserts 1, % 3 and 10 year prescription. According to the Dock Board, the prescriptive periods have accrued between the time the heirs received actual or constructive notice and the time of the filing of the suit in 1978. The most serious attack is that relating to two and three year prescriptions.

It is true, as pointed out by the Dock Board, that LSA-R.S. 19:2.1(B) provides for a two-year prescriptive period for all claims for the value of property or damages to an owner caused by expropriation, and the period commences on the date on which the property was actually occupied and used for the purposes of expropriation. It is true also that LSA-R.S. 13:5111 provides for a three-year prescriptive period in actions for compensation for property taken by the state, parish, municipality or other political subdivision, which runs from the date of the taking. It is also clear in our case that the property was taken in 1958 and the suit was filed some twenty years later in 1978.

However, it is well settled that the commencement of the running of prescription presupposes notice, constructive or actual, to the owners. See Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970); Powell v. Department of Highways, 383 So.2d 425 (La.App. 4th Cir. 1980); Chenevert v. Louisiana State Dept. of Highways, 345 So.2d 960 (La.App. 4th Cir. 1977). In written reasons, the trial judge in addressing the notice question, stated:

“Defendant argues the Cartwright case, 232 So.2d 285 regarding constructive notice should control but where the aerial photographs of the canal and the surrounding property show the entire area to be nothing more than inaccessible swampland and where the property was owned by numerous heirs who had inherited fractional interests from generations past and these facts were discernible from the public records, governmental agencies have a greater duty to notify the property owners directly than were the property located on the suburb of a metropolitan area and legal advertisements cannot be relied on under these circumstances.”

We are in accord and adopt those reasons as our own.

Accordingly, we conclude no notice was given to the heirs which would commence the running of prescription.

We are aware of the stipulations in the record that in 1971 attorneys for heirs of Antoine Rovira and Elizabeth Spreckles Ro-vira and a co-administrator of the Succession of Elizabeth Spreckles Rovira, who was a representative of the class comprising all of the heirs of the decedents, knew of the construction and existence of the MRGO across the property and that a portion of these lands had been taken. However, we cannot conclude that a mere stipulation of attorneys or a co-administrator can bind all of the heirs, known or unknown, where no judgment has been rendered recognizing these owners as the sole and only heirs at law of decedents. The stipulation notwithstanding, we find no error in the trial court’s conclusion that no notice had been given to the “numerous heirs”.

Under the circumstances, we find no merit to the Dock Board’s argument regarding liberative prescription.

ACQUISITIVE PRESCRIPTION

Defendant further contends that plaintiffs have no right to maintain the action against the Dock Board since the United States by its construction and operation of the MRGO has acquired the property by ten-year acquisitive prescription.

LSA-C.C. Art. 742 provides:

“The laws governing acquisitive prescription of immovable property apply to apparent servitudes. An apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years in good faith and by just title; ...."

According to defendant, the waterway is an “apparent” servitude that has been in continuous existence and operation since constructed in 1958-59, or at least since 1963 when it was opened to traffic. Defendant argues the “good faith” and “just title” requirements were met when the United States acquired from the Dock Board the right-of-entry granted by the City of New Orleans, the record owner. Because action was not taken until 1978, defendant claims the ten-year prescriptive period has elapsed.

We reject this contention. Neither the Dock Board nor the United States obtained “just title” to the property. The “right of entry agreement” between the City and the Dock Board is not a deed translative of title. The agreement, in pertinent part, merely provides that:

“... The City of New Orleans does hereby grant to the Board of Commissioners of the Port of New Orleans the right of ingress and egress over City property for the purpose of the Mississippi River Gulf Outlet. The above said Commissioners are authorized to proceed with whatever must be done to bring this project to reality.
* * * * * *
It is agreed that negotiations will be entered into promptly for the acquisition in fee simple title of the lands upon which this right of entry is granted under mutually satisfactory terms, or if mutually satisfactory terms cannot be agreed upon, that Board of Commissioners of the Port of New Orleans will take steps to acquire title by condemnation procedure.
It is further agreed that the value of the lands to be acquired for the State of Louisiana shall not be considered either depreciated or enhanced by any dredging or deposit of spoils performed by the United States of America, or by any mucking out by the Board of Levee Commissioners of the Orleans Levee District, the value of said lands to be considered as remaining as it is at present and to be arrived at as though no dredging or deposit of spoils or mucking out had taken place.”

Just title has been defined by our courts as title that purports to convey ownership, is translative of property, and, on its face, is apparently valid so as to induce the possessor to believe that it is a perfect one. LSA-C.C. Arts. 3483, 3484, 3485, 3486. Callahan v. Authement, 99 So.2d 531 (La.App. 1st Cir. 1957); Barrois v. Legendre, 127 So.2d 790 (La.App. 4th Cir. 1961). Considering those cases, together with the right-of-entry agreement, we cannot conclude the agreement constitutes a just title as contemplated by the Code. Having so concluded, we find no merit to the Dock Board’s claim relative to the ten-year acquisitive prescription.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . The matter has been heard only on the question of liability. We only decide the liability question.

      . Although a number of individuals have been recognized as fractional owners of the subject property by judgments of possession in the later successions of various apparent heirs of Antoine Rovira and Elizabeth Spreckles, those judgments of possession presuppose the decedents’ interests were acquired from Antoine Rovira’s succession.

      . While defendant’s appeal was pending in this Court, the Rovira heirs filed a motion to be substituted as parties-plaintiff. Having concluded that the succession representatives are the proper-parties-plaintiff to prosecute this action without the necessity of joining the individual heirs, we do not consider the motion to substitute.

      . LSA-C.C.P. Art. 685 reads as follows:
      “Art. 685. Succession

      Except as otherwise provided by law, the succession representative appointed by a court of this state is the proper plaintiff to sue to enforce a right of the deceased or of his succession, while the latter is under administration. The heirs or legatees of the deceased, whether present or represented in the state or not, need not be joined as parties, whether the action is personal, real, or mixed.”

      . In connection with the one-year prescriptive period, the Dock Board relies on LSA-C.C. Art. 3534, which provides a one-year prescriptive period in mandamus suits. Because we con-dude plaintiffs are entitled to be compensated for the taking by the Dock Board, we find no necessity to discuss whether or not plaintiffs have a right of mandamus.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Cecil STEWART v. CITY OF NEW ORLEANS, New Orleans Police Department, Travelers Insurance Company, and Charity Hospital of Louisiana At New Orleans, a Division of/and Louisiana Health and Human Resources Administration, and ABC Insurance Company.
    No. 12516.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Sept. 24, 1982.

      Walter F. Gemeinhard, John P. Keegan, New Orleans, for plaintiff-appellant.
    H.M. Westholz, Jr., Staff Atty., Louisiana Dept, of Health and Human Resources, New Orleans, for defendants-appellees.
    Before GARRISON, AUGUSTINE and WARD, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, dismissing plaintiff’s suit against Charity Hospital and the Louisiana Health and Human Resources Administration. Defendants, Travelers Insurance Co., the City of New Orleans, and the New Orleans Police Department (hereinafter N.O.P.D.), reached a settlement with plaintiff in plaintiff’s case against the City prior to rendition of judgment. From the judgment of dismissal, which we affirm, plaintiff appeals.

On appeal, plaintiff argues that the trial court erred in failing to apply the doctrine of res ipsa loquitur as applied in Holloway v. Southern Baptist Hospital, 367 So.2d 871 (La. App. 4th Cir., 1978) or, alternatively, that the trial court erred in failing to provide compensation for the aggravation of a prior existing condition.

The operative facts are as follows:

On November 12, 1974, plaintiff became extremely disoriented, such that his mother notified N.O.P.D. At 4:35 a.m., he was taken into custody on charges of disturbing the peace and was subsequently placed in, the House of Detention. Pursuant to a coroner’s examination, plaintiff was diagnosed a paranoid schizophrenic and was committed to Charity Hospital. He was admitted to Charity at 9:15 a.m. on November 15. At 10:00 a.m. he was admitted to the psychiatric ward. Restraints had been placed on the plaintiff, including ankle restraints on his right leg. During his stay in Charity Hospital, the area of the right ankle restraint became gangrenous, resulting in the amputation of plaintiff’s right leg. The amputation extended to above plaintiff’s right knee.

Plaintiff argued that the restraints were improperly applied and excessively tight, resulting in the injury. Plaintiff further argues that he was severely beaten and physically abused while in custody.

At trial Dr. Bruce Iteld testified that the laboratory tests positively indicated that plaintiff had group A beta hemolytic streptococcus bacteria in his blood stream. The bacteria is introduced into the blood stream most commonly by the use of unclean needles and poor dental hygiene. At the time of plaintiff’s confinement in Charity Hospital, the bacterial infection had already attacked plaintiff’s musculature system, which indicated to Dr. Iteld that the bacterial infection had been in plaintiff’s blood stream for some time and that it was introduced into his blood stream prior to his confinement. Plaintiff’s leg had “track marks” of the type normally associated with drug addiction. Dr. Iteld further testified that plaintiff’s sickle cell traits would aggravate the bacteriological condition. Plaintiff’s leg was amputated due to a lack of blood flow or eschemia which resulted in the gangrene.

Dr. Larry Hollier, Assistant Professor of Vascular Surgery at L.S.U. Medical School, also treated the plaintiff. Dr. Hollier testified that plaintiff had a bacteriological infection harbored within the walls of the heart. Upon examination it was noted that plaintiff had an extraneous noise that could be heard with each heartbeat. He further had small hemorrhages present beneath the nails of his fingers and gradually developed spots on both feet. Dr. Hollier testified that these “splinter hemorrhages” are caused by clusters of small bacteria-laden blood clots which are then showered into the blood stream during the pumping action in the heart. Once in the blood stream, the clots then block small blood vessels, which in turn give rise to discoloration and black spots. Dr. Hollier further testified, that plaintiff’s “bruised” appearance was due to the discoloration caused by the splinter hemorrhages.

On appeal, the question to be addressed by this court is, whether upon a full and independent review of the evidence and testimony presented, can this court conclude that the trial judge was manifestly erroneous in his factual determinations. In the present case, we cannot conclude that the trial judge was manifestly erroneous. We find no evidence that plaintiff was either improperly restrained or physically abused. We are convinced that Charity Hospital provided creditable medical services and that the medical personnel did all that they could do to save plaintiff’s leg and plaintiff’s life.

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

AFFIRMED.


author: WARD, Judge.

text:
    PELICAN ELECTRICAL CONTRACTORS v. John S. NEUMEYER and Roy J. Anselmo, Jr. d/b/a Georgie Porgie’s Restaurant and Discotheque.
    No. 12783.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Sept. 24, 1982.

      Robert McDonald, New Orleans, for defendants-appellants.
    Frank J. Rabito, New Orleans, for plaintiff-appellee.
    Before BARRY, WARD and WILLIAMS, JJ.
   WARD, Judge.

This suit arises out of a construction contract for electrical work at Georgie Por-gie’s, a restaurant and discotheque, located in the Hyatt Regency Hotel in New Orleans. Pelican Electrical Contractors, Inc. [Pelican] has sued the co-owners of Georgie Porgie’s, John Neumeyer and Roy Anselmo, Jr., for the unpaid portion of the contract price and for payment of “extras” supplied during construction. Neumeyer and Anselmo’s defenses and claims will be discussed in detail later, but essentially they have denied owing money under the contract- or for any “extras,” and they have reconvened, seeking damages caused by the failure of Pelican to complete construction. The Trial Judge referred the matter to the Commissioner who, at the request of Pelican, appointed an expert to investigate the contending claims of the parties, to evaluate them, and to report his conclusions. After receipt of the report, the Commissioner conducted a hearing and recommended to the Trial Judge that he render judgment in favor of Pelican. Defendants objected to that recommendation, but the Trial Judge accepted it, and he rendered judgment in favor of Pelican and against defendants. Defendants have appealed from that judgment alleging numerous errors in the Commissioner’s factual findings. Pelican has appealed, asking for an increase in the judgment.

The issues in this appeal arise from factual disputes brought about by oral agreements and a written contract. The oral agreements — valid contracts — were made before and after the signing of the written contract; nevertheless, the written contract will be described first.

The written contract was signed by James Higginbotham, as owner of Pelican, and by both defendants, as co-owners of Georgie Porgie’s, and was for the installation of electrical wiring, equipment, and fixtures for the restaurant and discotheque, but not for the dining room. Although Pelican supplied the contract, it was unusual because it was nothing more than a printed form copyrighted by an out-of-state publisher for use in the construction trade in other states. According to its terms, Pelican made a proposal or bid for the electrical work, and defendants Neumeyer and Anselmo accepted it. The contract also contained a vague description of the work to be performed, a reference to a drawing to fill in the details, and an agreed price of $34,500.00. Although it was dated June 8, 1977, there was no indication of when Neu-meyer and Anselmo accepted the bid. It was unusual in more ways: there was no date for commencement of construction, and, more importantly, there was no date for completion of construction. Additionally, as if this were not enough, there was a provision giving the defendants “the option to relocate and change [the electrical wiring, equipment and fixtures] as job necessitates,” although it also contained a provision standard in the industry that “deviations from ... specifications will be executed only upon written orders, and will become an extra charge.”

Not only was the contract unusual, there also was conflicting testimony given during the trial both about the events that occurred before and after the signing of the contract and about the oral agreements between the parties. Nevertheless, in spite of the conflicting evidence, it is possible to piece together a narration of those events which is logical in sequence and consistent with the Commissioner’s findings of fact.

The testimony indicated that Neumeyer employed Mr. John Bohlke, an architect, to design the construction plans for Georgie Porgie’s, and Bohlke subcontracted with Mr. Mario Zervigon, an electrical engineer, to design the electrical part of the plans. In October 1976, Zervigon gave his electrical design plans to Bohlke, who gave the plans to Neumeyer, who distributed them to the subcontractors. Higginbotham received them early in April 1977 (from a third party who had declined to bid on the job), and he met with Neumeyer later in the month for the purpose of submitting a bid by Pelican. They met in Georgie Porgie’s and, after discussing the plans, Neumeyer, who had supervised construction of several hundred lounges, accepted Pelican’s bid of $34,-500.00. Relying on this oral contract, Pelican ordered material for the job, and construction began before May of 1977. From the very beginning and throughout the course of four months of construction, Neu-meyer issued numerous change orders, and Pelican complied with these orders. Some change orders were minor; some were not.

Finally, on June 8,1977, the written contract was signed by Neumeyer and Anselmo, for Georgie Porgie’s, and by Higginbot-ham, for Pelican. At the time of signing, a substantial amount of work had been done, and Neumeyer and Anselmo paid Pelican the first installment. Work continued, and construction in the restaurant and discotheque progressed.

Sometime before the completion of that work, Neumeyer acquired space for a dining room adjacent to the lounge, and after this, Neumeyer, Anselmo and Higginbot-ham entered into an oral agreement for Pelican to do the electrical work for the newly acquired dining area. The work was insubstantial compared to that in the original contract, and the agreed price was $2,800.00. It was never reduced to writing and was much like all the other change orders given by Neumeyer to Higginbotham —informal, without plans or specifications.

Neumeyer and Anselmo were anxious to open Georgie Porgie’s, and Neumeyer continually pressed for completion of the unfinished construction. Finally, although the work was not entirely completed, the doors opened for business on September 15, 1977, and Georgie Porgie’s has operated continuously since that date.

After the opening, Higginbotham visited Georgie Porgie’s in the latter part of September and presented a list of “extras”— $19,504.00 worth — that were the result of changes in the plans. At that time, Pelican had been paid $30,000.00 on the original contract price of $34,500.00, and some work remained to be done. Neumeyer examined the list and agreed to pay for some of the “extras,” but not for others. Pelican stopped work, and shortly thereafter it filed suit, and this appeal followed.

In this appeal, defendants have alleged numerous reasons for reversing the factual findings of the Commissioner; they are summarized for purposes of analysis. First, defendants contend that Pelican breached the contract when it failed to complete construction and Pelican, therefore, should not recover the unpaid portion of the contract price. Second, they contend that the entire agreement between the parties was contained in the written contract which stated that orders for changes in construction, “extras,” must be in writing before the defendants would be liable for them and Pelican, therefore, should not recover for “extras” supplied to fill the oral change orders. Third, in their reconventional demand, they contend that the work was done in a shoddy manner and that additional work was necessary to correct defects and omissions in the work that had been done and Pelican, therefore, should pay for the cost of correcting the defects and pay for the omissions. Finally, also in reconvention, they contend that the unreasonable delay in construction prevented opening on schedule, which caused additional expenses and loss of profits and Pelican, therefore, should pay for these damages caused by the breach of its contract.

The first contention of defendants, that Pelican breached the contract and should not recover under it, presents the factual question of whether there was substantial performance by Pelican because, as the Supreme Court stated in Airco v. Fink, 242 La. 73, 134 So.2d 880 (1961):

... the law is well settled that when the contractor has substantially performed a building contract which he has breached, he is entitled in a suit on the contract to recover the contract price less whatever damages the owner may prove attributable to the breach.
... This is a question of fact. Among the factors to be considered [in determining whether there was substantial performance] are the extent of the defect(s) or non-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the defendant of the work performed.

The Commissioner applied those standards to this case. He found, although there was evidence of defects and omissions and although it cost the defendants at least $2,602.20 to correct them, the defects and omissions were insubstantial when compared to the contract price and the “extras.” Further, he found that since Georgie Porgie’s had opened for business within a reasonable time after work commenced and because it has operated continuously since that time, the purpose of the contract was not defeated. For these reasons, the Commissioner found there was substantial performance.

The standard of review of a Commissioner’s finding of fact when it is adopted by the trial court is the same as that applied by an appellate court to any other factual finding of a district court: the finding of fact will not be disturbed unless it is manifestly erroneous. In the instant case, we hold the Commissioner’s findings were not manifestly erroneous; there was substantial performance of the contract, and defendants must pay the contract price less whatever damages they may prove. Airco v. Fink, supra.

The second contention of defendants, that the contract authorizes payment only for written change orders, presents the question of whether they must also pay for “extras.” As to those “extras,” after the Commissioner had decided there was substantial performance of the contract, he proceeded on the premise that a fair treatment of the competing claims required a credit to Pelican for the “extras” and a credit to defendants for defects and omissions. Defendants vigorously objected to this procedure because the written contract prohibits it: liability for “extras” was limited to those authorized in writing. The Commissioner considered these arguments and rejected them. He found the parties made verbal agreements that abrogated the written contract, and he relied upon the following cases as authority for the rule that they may do so: A.A. Home Improvement Company, Inc. v. Shane, 217 So.2d 445 (La.App. 4th Cir. 1969); Huey Lumber & Millwork, Inc. v. Jackson, 212 So.2d 538 (La.App. 1st Cir. 1968); Groner v. Cavender, 16 La.App. 565, 133 So. 825 (2nd Cir. 1931); and Wellman v. Smith, 114 La. 228, 38 So. 151 (1905). These cases clearly indicate that the Commissioner is correct; written contracts for construction may be modified by oral contracts and by the conduct of the parties, and this is true even when the written contract contains the provision that an owner is liable only if the change orders are in writing. Pamper Corporation v. Town of Marksville, 208 So.2d 715 (La.App. 3rd Cir. 1968), writ den. 252 La. 271, 210 So.2d 509 (1968). It is a question of fact, therefore, as to whether there were oral agreements that modified the written contract.

The Commissioner made a finding of fact: there were oral agreements between Neumeyer, acting for Georgie Porgie’s, and Higginbotham, acting for Pelican, and the agreements modified the written contract. His finding is supported by the record, which described the numerous change orders, and shows Neumeyer’s willingness to pay for some of them. Again, the question in this appeal is whether that finding is manifestly erroneous. It is not.

Defendants supported their third contention (that the work was done in a shoddy manner and that there were defects and omissions) by the testimony of their experts who examined the plans and the work. These allegations were also supported by the testimony of Mr. Lucien Vivian, the court-appointed expert. Defendants proved, and Pelican admitted, that there were defects and omissions, but both disagree with Mr. Vivian’s opinion of the number of them and their evaluation.

Mr. Vivian determined their number when he went to Georgie Porgie’s and compared the work completed with the plans, and he used an industry approved uniform cost analysis for his evaluations. He allowed a credit to defendants for correction of defects and omissions, and he allowed a credit to Pelican for additions to the contract. Although neither defendants nor Pelican was satisfied with Mr. Vivian’s report, the Commissioner found it fair and impartial, and he approved this method of evaluation and adopted the findings of the expert as his own with only one change. That change was an addition to the plans made by Pelican for back lighting in an area of the building inaccessible for inspection by Vivian. The Commissioner, finding these additions proven by the evidence but omitted by Vivian because he could not view them, allowed Pelican a credit for their cost. After adding the cost of the back lighting and after offsetting the credits given Pelican for “extras” with the credits given defendants for defects and omissions, the Commissioner found that defendants owed Pelican $12,440.00, in addition to the $4,500.00 owed for the unpaid portion of the contract.

That finding of fact is also supported by the record. It is not manifestly erroneous. Neither defendants nor Pelican has proven it is, and it will not be changed.

The last contention of defendants, that Pelican owes damages for added expenses and loss of profits because it breached the contract, raises two issues: (1) was there substantial performance? and (2) if so, was there substantial performance within a reasonable time? We have already held there was substantial performance. But defendants also argue that even if there was substantial performance, Pelican failed to substantially perform within a reasonable time, and they claim loss of profits and added expenses for wages paid to employees occasioned by a delayed opening. They make this claim in spite of the fact that no date for completion had been specified in the contract. The applicable law is:

“... where no time for performance is specified, the inference will be supplied that the parties intended the obligation to be undertaken within a reasonable time. What constitutes a reasonable time must be determined by the circumstances of each case.” Perrin v. Hellback, 296 So.2d 342 (La.App. 4th Cir. 1974), writ den. 300 So.2d 184 (La.1974),

and further:

“It is well settled principle of law that a contractor’s failure to complete a building contract within the time specified therefor constitutes a passive breach thereof. It is equally well settled that the obligee seeking liquidated damages as a result of the late completion must first put the obligor in default. It is only in these instances where the contract expressly states that the expiration of the term assigned for performance constitutes a putting in default that the obligee is relieved from the necessity thereof.” Binnings Construction Co. v. Louisiana Life Insurance Co., 139 So.2d 561 (La.App. 4th Cir. 1962),

and finally:

“When the breach has been passive only, damages are due from the time that the debtor has been put in default....” LSA-C.C. Art. 1933.

Therefore, since this contract did not state a term for performance of the work, it must be construed to require substantial performance within a reasonable time. The Commissioner found the work was done within a reasonable time. We agree with his findings. He also found that, even if there was not substantial performance within a reasonable time, Pelican was not liable for damages because neither Neumeyer nor Anselmo ever placed Pelican in default. We agree; defendants are not entitled to damages.

There is another contention that deserves only brief comment. Defendants complain that the expert appointed by the Commissioner was biased because he had previously done work as an electrical engineer for counsel representing Pelican. That allegation of bias is not supported by the record. Rather, the record indicates a competent, professional evaluation by a professional man who gave unbiased testimony. It would be unreasonable to conclude that Mr. Vivian, an electrical engineer, would write a biased report and give false testimony because of a prior business relationship with counsel. The Commissioner properly rejected this allegation.

The report of Mr. Vivian, otherwise very thorough, omitted an item for which Geor-gie Porgie’s should be given credit. Pelican conceded that piping for the sound system specified in the contract was not installed. A credit was not given to defendants, and the judgment will be amended to give a $400.00 credit for that omission. Otherwise, the judgment of the trial court is affirmed. Cost of trial, including that for the experts’ investigation and testimony, and cost of this appeal are to be paid by appellants, John Neumeyer and Roy Anselmo, Jr.


text:
    James L. BOCK, Individually and as Administrator of the Estate of his Minor Son, James L. Bock, Jr. v. Mrs. Elizabeth BURNHAM and Donald Burnham, Individually and as Administrators of the Estate of their Minor Son, Mark Toca.
    No. 13042.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1982.
    Rehearing Denied Sept. 24, 1982.

      Edmund T. Wegener, Jr., New Orleans, for plaintiffs-appellees.
    Harriet R. Campbell Young, New Orleans, for defendants-appellants.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granted pursuant to a confirmation of a default, awarding to James Bock as administrator of the estate of his minor son, James Bock, Jr., the amount of $15,000.00 for damages sustained by him when the minor Mark Toca attacked Bock, Jr. with a pool cue, resulting in the loss of three teeth, lacerations of the lip, root canal work, teeth replants, wiring of the jaw for two months and a secondary infection resulting in a painful swelling. The judgment further awarded $898.01 of the $1,076.98 of medical and pharmaceutical bills to James Bock individually. From that judgment, Donald Burnham and Elizabeth Burnham appeal.

Suit was filed against Donald Burnham and Elizabeth Burnham as follows:

“That defendant, Mark Toca, is a minor child of defendant Mrs. Elizabeth Burn-ham from a prior marriage, and that on information and belief, defendant Donald Burnham is the adoptive father of the minor, Mark Toca, and that therefore defendants Mrs. Elizabeth Burnham and Donald Burnham, or one of them, are the proper parties defendant to represent the minor, Mark Toca.”

Personal service was made on Donald Burnham on May 14, 1981. On that same day, service was made on Elizabeth Burn-ham by leaving service with “her husband.” The Burnhams filed no exceptions or answers and made no appearances. Consequently, a default judgment was taken against them. Mrs. Burnham was personally served with the confirmation of default on August 14, 1981. On August 21, 1981, both Burnhams filed a motion for new trial which was denied.

On appeal the Burnhams argue that the judgment of the district court is improper because the plaintiffs failed to carry their burden of proof when plaintiffs failed to prove:

(1) that Mike Toca was or was not an emancipated minor;
(2) that Donald Burnham was or was not the adoptive father of Mike Toca;
(3) that Donald Burnham or Elizabeth Burnham were or were not the proper legal representatives of Mike Toca;
(4) that Elizabeth Burnham did or did not have legal custody of Mike Toca;
(5) that Mike Toca’s natural father was or was not the proper legal representative of the minor; and
(6) that the natural father did or did not have legal custody of Toca.

Indeed, defendants place a heavy burden of proof of capacity on the plaintiffs. Such a burden, however, is not the law.

C.C.P. Art. 855 provides as follows:

“It is not necessary to allege the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of a legal entity or an organized association of persons made a party. Such procedural capacity shall be presumed, unless challenged by the dilatory exception.”

Either plaintiff or defendant has standing to assert the dilatory exception of lack of procedural capacity. Frazer v. Day, 307 So.2d 733, appeal after remand 315 So.2d 356 (La., 1975). Additionally if the exception of lack of procedural capacity is not timely filed it is waived. Frazer v. Day, above; Davis v. Bankston, 192 So.2d 614 (La.App. 3rd Cir., 1966); Nicosia v. Guillory, 322 So.2d 129 (La., 1975). In the instant appeal, defendants are indicated as having been timely and properly served and consequently it must be concluded that they had the opportunity to raise the issue. Having apparently failed to raise the issue by dilatory exception, defendants must be regarded as having waived the issue.

Appellants further argue that plaintiffs failed to carry their burden of proof because the testimony presented included a great deal of hearsay and that the amount awarded is excessive.

Hearsay testimony must be objected to at trial in order for the issue of hearsay to be preserved for appeal. As no objections were made at trial, the hearsay issue is not properly before this court and need not be addressed.

Turning to the issue of quantum, we note that the standard of review is whether the amount awarded constitutes a clear abuse of discretion. The jurisprudential range for this type of injury ranges from $18,000.00 [Johnson v. McKay, 306 So.2d 417 (La.App. 3rd Cir., 1975) ] down to $10,000.00 [Rutledge v. Century, 280 So.2d 619 (La.App. 3rd Cir., 1973)]. While an examination of the jurisprudence is one factor to be considered, the court must also consider the effect of this individual injury on this individual plaintiff. As a result of the attack, James Bock, Jr. underwent teeth implant procedures. When the teeth were rejected, he was forced to undergo root canal work, which subsequently became infected, resulting in swelling and soreness of the entire face. His mouth was wired for two months, severely affecting his ability to speak and eat. In light of the factors considered, we cannot find that the amount awarded constitutes a clear abuse of discretion.

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

AFFIRMED.


author: REDMANN, Chief Judge.

text:
    Roy L. THOMAS v. AVONDALE SHIPYARDS, INC.
    No. 12806.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 15, 1982.
    Rehearing Denied Sept. 24, 1982.

      Joseph M. Bruno, Bruno & Bruno, New Orleans, for plaintiff-appellee.
    Stewart E. Niles, Jr., Donna G. Klein, Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and SCHOTT and KLEES, JJ.
   REDMANN, Chief Judge.

Defendant appeals from an award of workers’ compensation benefits for permanent and total disability from silicosis. We remand to allow defendant to cross-examine plaintiff’s expert Dr. Morton Brown on his expertise and to allow plaintiff too to present further evidence.

Dr. Brown is the only physician who testified plaintiff was disabled from silicosis. Dr. Brown had never examined plaintiff, but saw his chest x-rays and knew his employment history to include sandblasting (although with a forced-air sandblast hood, and mostly with coal ash rather thán silica). Dr. Brown testified that x-rays demonstrated nodular and interstitial changes that, in view of plaintiff’s sandblasting history, were most obviously explained by silicosis. He further testified that plaintiff’s severe heart and collagen diseases were caused by the silicosis.

The problem is that Dr. Brown’s testimony is seriously divergent from that of the other two experts, both also presented by plaintiff. They were probably presented for two points: first, that silicosis can be diagnosed from x-rays and a work history of sandblasting; and second, that these doctors view the x-rays as consistent with (perhaps in the sense of not affirmatively excluding) silicosis.

Plaintiff’s first pulmonary diseases expert, Dr. Kenneth Smith, asked whether x-rays were “consistent with silicosis,” replied “The accentuation of the interstitial pattern with ... almost a reticulonodular pattern is consistent with silicosis.” But his next answer, to “what was your final diagnosis,” was “it is my impression that at this time there is no evidence for silicosis in Mr. Thomas. There are no nodular changes in the lung, and he has no other evidence that could not be explained by the presence of his collagen vascular disease .... I believe his symptoms are probably due to a mixed collagen vascular disease with a prominent progressive systemic sclerosis component. ... I think that it’s possible, underlying all of this, that he might have silicosis. It’s impossible for me to say with any probability or any certainty that he does or does not.” Dr. Smith does testify as to two x-rays, plaintiff emphasizes, with “some very tiny nodular changes”; but he repeats “I can’t see with a probability that he has silicosis. I think there’s a possibility that he has silicosis.”

Plaintiff’s second expert, Dr. Hans Weill, professor of medicine and chief of the pulmonary disease section and director of a large research center in occupational diseases at Tulane University, was accepted as an expert in “pulmonary diseases and occupational lung diseases.” The substance of his testimony (especially as supplemented by post-trial deposition) is that the x-rays are explainable by plaintiff’s heart failure and collagen disease, and do not indicate silicosis, having “at best only marginal evidence” of “characteristic nodulation”; some concomitant silicosis cannot be positively excluded because of the history of sandblasting with silica (“without that occupational history ..., there isn’t anything about this x-ray that would suggest silicosis ... ”); “If he has silicosis it would be at the very lowest order of simple nodular silicosis where there is some doubt even at that level.” Tulane studies indicate that only acute forms of silicosis are associated with an increased incidence of collagen diseases; because plaintiff’s “x-rays show an enlarged heart without advanced silicosis ... that excludes silicosis as a cause of the heart enlargement .... ”

In sum, we read the testimony of the other two doctors as supporting the conclusions (1) the x-rays show no nodules or “very tiny” nodules, but do show a much enlarged heart (and at one time “lungs flooded with water” from heart failure) and collagen disease, and thus (2) the x-rays, even considering the work history, do not establish silicosis although they would not exclude some minimal silicosis; (3) only advanced silicosis can cause heart and collagen disease; (4) lung function tests are consistent rather with heart and collagen disease in that plaintiff (in Dr. Weill’s words) “has no airways obstruction at all and as silicosis worsens that’s an invariable physiologic impairment. He has primarily ... reduction of lung volume ... and a marked disturbance of alveolar gas transfer which is almost certainly due to his lung congestion and heart disease.”

With that testimony in mind from two other experts presented by plaintiff, we find it most disturbing that Dr. Brown sees x-ray evidence, that Drs. Smith and Weill do not, not merely of silicosis, but of silicosis sufficient to cause plaintiff’s obvious heart and collagen disease, and to justify Dr. Brown’s conclusion, without ever examining plaintiff, that plaintiff is totally and permanently disabled by silicosis. It appears to us that either Dr. Brown or else Drs. Smith and Weill are so mistaken as to question the expertise or impartiality of one side or the other. Under the circumstances we conclude that the foreclosing of. cross-examination related to expertise and bias was error and we therefore remand to allow that cross-examination and redirect and any other evidence the trial judge in his discretion deems appropriate. See Brown v. Avondale Shipyards, Inc., 413 So.2d 183 (La.App. 4 Cir. 1982).

Remanded.


text:
    Lloyd P. CHAMPAGNE v. Henry R. ALSOBROOK, Jr.
    No. 12995.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 19, 1982.
    Rehearing Denied Sept. 24, 1982.

      Ralph Brewer, Baton Rouge, for plaintiff-appellant.
    H. Martin Hunley, Jr., Gerald J. Talbot, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant-appellee.
    Before REDMANN, C.J., and SCHOTT and KLEES, JJ.
   REDMANN, Chief Judge.

Law professors and students every day discuss actual court cases, by name and in detail, for educational purposes. Do they defame a litigant or lawyer by pointing out, so that listeners will avoid similar acts in the future, unwise behavior or procedural missteps in the case?

The question in this appeal from dismissal on the merits of a defamation case is whether a lawyer, while giving an educational address to a group of physicians on how to act in court, defamed a then-unnamed doctor by pointing out that, while testifying as a medical expert in a case involving a femoral arteriogram, the doctor was made to “look bad” by cross-examination that revealed he had never done an arteriogram and did not know the name of the inventor of the procedure or the names of the needles and catheters used in the procedure although a nurse or technician (accustomed to the procedure) would know the instrument names. The particular point being made was that a doctor should avoid testifying out of the field of his expertise, and thus avoid possibly embarrassing cross-examination.

The answer is that the lawyer giving an educational speech to an audience with an interest in the matter, like the law professor, does not defame participants in actual litigation by describing with substantial accuracy the litigation and the acts of the participants that the speaker deems errors that the audience should avoid.

The factual basis for plaintiff’s complaint is that defendant, during the course of an address as general counsel to the Louisiana Medical Society relative to how doctors should act in court, told of a case in which some doctor (in fact that doctor was our plaintiff) qualified as an expert (relative to the standard of medical care in New Orleans) in a medical malpractice case involving a femoral arteriogram procedure. That doctor (in fact our plaintiff) had never done such a procedure and did not know the name of the doctor who invented the procedure, or the needles and catheters used. “[0]f course,” defendant testified at trial, “this made him look bad because he was not familiar with the procedure and he was testifying as an expert on it.”

Plaintiff did have one witness, Dr. Philip M. Castro of Baton Rouge, who testified that in his address (1) defendant identified plaintiff by name as being that doctor; (2) defendant “asked [plaintiff] to identify . .. one particular instrument ... and he [plaintiff] was unable to do that, and later a nurse, I presume a scrub nurse ... was able to identify this instrument”; (3) defendant “didn’t say why he brought [the case and plaintiff’s involvement] up” but Castro’s “impression ... was that this was a clever way to discredit the witness’ testimony ... [although Castro] didn’t think this was clever on [defendant’s] part, but — I wasn’t too impressed with the impact of the statement.” Defendant and two other doctor witnesses testified, as to (1), that defendant did not identify plaintiff by name, and, as to (3), that the point of referring to that particular case was to impress upon doctors that they ought not to attempt to testify in cases outside of their respective fields. (One other doctor testified he knew enough about the case to infer that plaintiff was the doctor involved, but he believed that inference could not have been drawn by “anybody not familiar with the particular medical-legal scene.”) Defendant further testified, as to Dr. Castro’s point (2), that in addition to a cardiovascular surgeon he did have available at that malpractice trial “a nurse, laboratory technician, whom we did not call but who also knew [the names of the needles and catheters].”

The trial judge found “that the defendant did not make any defamatory or slanderous statements directly or indirectly about the plaintiff.” He added that defendant’s remarks “were educational, informational, and protected by” U.S. Const. Amend. 1 and 14 and La. Const, art. 1 § 7.

Cangelosi v. Schwegmann Bros., 390 So.2d 196, 198 (La. 1980), declares that a successful action in defamation requires a showing of “(1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury.”

Plaintiff argues that defendant’s remarks were defamatory because they tend to expose him to ridicule, Madison v. Bolton, 234 La. 997, 102 So.2d 433 (1958), and that they are presumed to be malicious because they adversely affect his professional reputation, Wiel v. Israel, 42 La.Ann. 955, 8 So. 826 (1890). But the overall evidence here is that no one’s respect for plaintiff was diminished by defendant’s remarks: even Dr. Castro “wasn’t too impressed” because he himself did not know the names of all surgical instruments. We cannot disagree with the trial court’s finding that the words were not defamatory.

Nor can we conclude that the lecture remarks were false, for the transcript from the malpractice trial shows that defendant’s statements, as reported by Dr. Castro, were substantially accurate, and that is all that is required; see Bosley v. Hebert, 385 So.2d 430 (La.App. 1 Cir. 1980).

Moreover, the circumstances and educational intent of the remarks disprove any malice. “The test is the effect the [statement] is fairly calculated to produce and the impression it would naturally engender in the minds of average persons among whom it is intended to circulate.” Brown v. News-World Pub. Corp., 245 So.2d 430, 432 (La.App. 2 Cir. 1971). The overall context of allegedly defamatory statements must be considered, Tate v. Nicholson Pub. Co., 122 La. 472, 47 So. 774 (1908); and the context here shows no design of ill will towards plaintiff but a design to alert the medical audience to stay within their own expertise in court appearances so as to avoid possible embarrassment.

Affirmed.

      . That part of our plaintiffs testimony on cross-examination by our defendant in that actual case was: “Q. Have you ever done an arteriogram? A. No, sir. Q. Have you ever done an angiogram? A. No, sir.” Later, “Q. Doctor, what was the name of the man who invented this procedure? A. What procedure? Q. The femoral arteriogram? A. I don’t know. Q. Do you know where it was first done? A. No, sir. I’ve already said I don’t do them, I am not an expert in the procedure, itself. I really doubt if even the people who do them could answer that. Q. Do you know who was the first person who did one in New Orleans? A. No, sir. Q. Do you know what the names of the needles are that they use in this procedure? A. No,' sir. Q. Do you know what the names of the catheters are that they use in this procedure? A. No, sir.”

      . Dr. Castro’s téstimony on these points was: “Q. Now, did the name Lloyd Champagne arise during the course of his talk? A. To the best of my ability to recall it was — when this issue came up, this is the thought that came from my mind that I recall in citing the instances that took place in this case in a court hearing he did refer to testimony that was given by a witness — I think he said expert witness — and referred to the witness by name. Q. Did he use the name Dr. Lloyd Champagne as such, or do you recall? A. I recall that he did say Lloyd Champagne. Q. Do you recall whether he mentioned that name in connection with one or more cases? A. In only one case. Q. All right. Now, to the best of your recollection would you repeat what he said in connection with the case that Dr. Champagne was involved in? A. I don’t remember the exact words.... What I recall was that he stated that Dr. Champagne or Lloyd Champagne, I don’t know how he referred to him, was a witness in this case. I think it was a disc case, a back case, surgical case, but I could be wrong about that. But the impression I got was that as a witness he asked him to identify an instrument, one particular instrument — he didn’t say what instrument — and he was unable to do that, and later a nurse, I presume a scrub nurse but I don’t remember whether he qualified this type of nurse, was able to identify this instrument. And in the course of relating what took place during this case hearing, this was sort of a side comment, incidental comment, apparently. He didn’t carry it any further but he just mentioned that as a passing comment. And I guess I recall it because knowing Dr. Champagne and hearing his name it impressed me enough to remember that part whereas I could not give you any details about that case or any ether case.... Q. Did he mention this particular case and Dr. Champagne’s involvement in it to make a particular point? A. I don’t know that. He didn’t say why he brought it up. Q. Can you recall in your mind why you thought he brought it up at the time? ... A. Well, I don’t know what his intention was, but the impression I got was that this was a clever way to discredit the witness’ testimony and like any other legal maneuver that would tend to discredit, it may have been a clever way to do it. Of course, as a physician I didn’t give much thought to this because even though I’ve scrubbed up in a lot of surgical cases there are many instruments that I couldn’t recognize or call by name because I just use them and may not know the name of them. The surgeon would know, but — so I didn’t think this was clever on his part, but — I wasn’t too impressed with the impact of the statement. Q. All right. Is there any doubt of the kind of instrument that Mr. Alsobrook referred to at that particular time and in that particular talk? ... A. If I had to — the best I recall it was a disc case so if it’s a disc case it could be an orthopedic instrument or a neurosurgical instrument.... Q. What else, if anything, did Mr. Alsobrook say in connection with reference to that particular court case that you can recall? A. That’s all I can recall.”


author: DOUCET, Judge.

text:
    Joseph Ernest NARCISSE, Adm. of the Estate of His Son Kevin Joseph Narcisse, Plaintiff-Appellant, v. CONTINENTAL INSURANCE COMPANY and the Lafayette Parish School Board, Defendants-Appellees.
    No. 82-29.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1982.

      John G. Poteet, Jr., Lafayette, for plaintiff-appellant.
    Simmons & Doyle, Gracella Simmons, Baton Rouge, for defendants-appeilees.
    Before SWIFT, DOUCET and LaHAYE , JJ.

       Judge Joseph A. LaHaye, 27th Judicial District ' Court, Parish of St. Landry, presided as Judge Ad Hoc in this decision.

   DOUCET, Judge.

Plaintiff’s son, a first grader at St. Antoine’s School in Lafayette, was injured when a classmate shut a heavy metal door on the child’s thumb. Plaintiff sought recovery from the school board and its insurer on two grounds: 1) The door involved was unreasonably hazardous, and 2) the school was negligent in its supervision of the school children involved. The trial court rendered judgment in favor of defendants and plaintiff appeals. We find the record is void of proof supportive of plaintiff’s first contention and further find that the school board was not remiss in its duty to supervise.

On May 8, 1980, Kevin was leaning with his hand on a classroom door frame when a fellow student stumbled and hit the door, closing the heavy metal door on Kevin’s thumb, severely smashing it. The incident occurred during lunchtime when only a few students were in the classroom and while the teacher had temporarily stepped out to go to the ladies’ room.

Suit was filed by Joseph Narcisse on behalf of his minor son against the Lafayette Parish School Board and its insurer, Continental Insurance Co., wherein it was alleged the particular door in question was unreasonably hazardous to children under the Board’s supervision and, alternatively, that the board was negligent in supervising the children.

At trial on the merits plaintiff produced evidence relative to the door involved. It was established that the door was made of metal, weighed 112 pounds, and lacked a doorstop or closure. Dr. Louis Y. Mclntire, a chemical engineer with training in mechanical engineering and physics, was tendered as an expert witness. However, on traversal, when questioned about the safety design and use of doors, Dr. Mclntire admitted that he had no prior experience in this regard. Accordingly, the court allowed the witness to be qualified as an expert generally in mechanical engineering, but not specifically doors. Also in support of his claim, plaintiff sought to introduce photocopied portions of the National Fire Code and the Southern Building Code International, and two photocopied pages entitled “Architectural Graphic Standards, American Institute of Architects, John Wiley & Son, Inc.” The trial court disallowed introduction of this evidence.

The trial court ruled in favor of defendants, dismissing plaintiff’s claim. From that judgment plaintiff has taken a devolu-tive appeal, , maintaining the same theories of recovery.

Appellant contends that a metal door of such weight, without a closure, placed in a school building amidst children, is an unreasonable risk of harm, particularly when one considers the relative ease, mechanically and financially, with which the risk could be reduced via installation of safety devices. However, we need not address this issue as the record is void of supporting proof.

Plaintiffs strict liability claim is simply not supported by the evidence. His expert witness, an engineer, had no prior experience concerning door design or safety, and thus he was qualified and accepted by the court as an expert on a fairly narrow range of subjects. Testimony as to safety or design of doors would have clearly been outside of his field of expertise, as the trial court correctly concluded.

Plaintiff sought to introduce the aforementioned documents pursuant to LSA-R.S. 13:3713, which provides, inter alia, that official regulations of federal agencies or commissions may be evidenced “... by the federal register or by a printed book or pamphlet or periodical purporting to be published by the U.S. Government Printing Office ... by authority ... shall be received in all courts ... as prima facie evidence...” (emphasis added). We do not believe a litigant can avail himself of this provision by tendering selected, photocopied portions of a publication, absent additional foundation for its introduction. Hence we need not decide whether the preferred exhibits fall within the ambit of the statute’s definition of publications, nor must we address the applicability of Burley v. Louisiana Power and Light Co., 319 So.2d 334 (La.1975), relied upon by appellant. The evidence was properly excluded.

Appellant alternatively argues that the School Board is liable because of its negligence in (1) failing to have a classroom teacher present when the accident happened, (2) failing to have a door stop to hold the door open, and (3) failure to have a closure on the door to prevent it from slamming.

Appellant “cites” the case of Schnell v. Travelers Ins. Co., 264 So.2d 346 (La.App. 4th Cir. 1972) for his proposition that the school board was negligent in its supervision duties. In Schnell, plaintiff’s sixth grade daughter lost sight in one eye when another 11-year old pushed her hand through a frosted door-pane when her hand allegedly slipped as she attempted to get into a room in which the sixth grader was “minding” four or five first graders. The Fourth Circuit, in a divided opinion, three-judge panel, held, inter alia, the teacher was negligent in allowing the sixth grader to supervise the first graders. Not only is the case not controlling, it is factually inap-posite.

Appellant also cites 38 A.L.R.3d 830, An-not. Tort Liability of Public Schools and Institutions of Higher Learning for Injuries Resulting from Lack or Insufficiency of Supervision, in support of his proposition that the school board was negligent in failing to supervise plaintiff and third party tortfeaser. However, a reading of the annotation discloses that the cases cited therein are inapposite and that the majority of jurisprudence is contrary to plaintiff’s contention.

Constant supervision of all pupils is not required. Indeed such a requirement would be virtually impossible in view of class sizes and children’s mobility, absent a ball and chain. In the absence of a special, dangerous condition appellee is under no duty to supervise all movements of all children at all times. The record reveals no breach of duty.

As was noted in Lewis v. St. Bernard Parish School Board, 350 So.2d 1256 (La.App. 4th Cir. 1977):

“It repeatedly has been held that ‘(t)he fact that each student is not personally supervised every moment of each school day does not constitute fault on the part of the School Board or its employees.’ McDonald v. Terrebonne Parish School Board, 253 So.2d 558, 562 (La.App. 1st Cir., 1971), writ ref., 260 La. 128, 255 So.2d 353. Accord, Partin v. Vernon Parish School Board, 343 So.2d 417 (La.App. 3rd Cir., 1977); Bourgeois v. Indemnity Ins. Co. of North America, supra [60 So.2d 718, La.App.]”

The unreasonable danger presented, according to plaintiff, is not doors in and of themselves. Doors are known to smash fingers; they are of great utility (as are fingers). Rather, plaintiff’s contention is that a door of such weight, without safety devices, presented a dangerous condition. However, when the expert testimony and tendered exhibits mentioned hereinabove are properly excluded from consideration, there is little or no evidence of a dangerous condition. Additionally, the record is deficient with regards to any knowledge, actual or constructive, on the part of defendants, of such a dangerous condition, if one indeed existed.

Furthermore, we have found no jurisprudence imposing an affirmative duty to install closures on classroom doors, and the record does not indicate the absence of same constituted negligence in the case at bar. Accord: Lewis v. St. Bernard Parish School Board, supra. Likewise, we know of no case requiring door stops under the circumstances presented.

For the reasons set forth above the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

      . The record reveals a comparable wooden door would have weighed approximately 33 pounds.

      . The alleged errors are not categorically specified. Plaintiffs brief is phrased to the effect that the trial court erred in rendering judgment in defendants’ favor other than plaintiffs.

      . The citation provided, “Schnell versus Travelers Insurance Company, 264 So.2d 346 (1974)”, was incomplete inasmuch as counsel did not designate the court rendering the decision.


author: LaHAYE, Judge Pro Temp.

text:
    Cora Beatrice DEVILLE, Plaintiff-Appellant, v. PORT PIPE TERMINAL OF LOUISIANA, INC. and United States Fidelity and Guaranty Company, Defendants-Appellees.
    No. 82-30.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1982.
    Rehearing Denied Sept. 15, 1982.
    Writ Denied Nov. 19, 1982.

      Norman L. Williams, Billie C. Woodard, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Stephen A. Berniard, Jr., Lake Charles, for defendants-appellees.
    Before SWIFT, DOUCET and LaHAYE, JJ.
   LaHAYE, Judge Pro Temp.

This is a workmen’s compensation case. Plaintiff, Cora Beatrice Deville, sued her employer, Port Pipe Terminal of Louisiana, Inc., and its workmen’s compensation carrier, United States Fidelity and Guaranty Company, seeking compensation benefits and medical expenses for an alleged injury she received while in the course and scope of her employment. The sole issue on appeal is whether plaintiff proved that the injuries she suffered were caused by a work-related accident. In a well-reasoned opinion, the trial judge found that plaintiff failed in her burden of proving that her injuries were the result of a job-related accident. We adopt the following reasons of the trial court as our own:

“Plaintiff was employed as a laborer by Port City Terminal, Inc., and sues to recover compensation benefits and medical expenses for an alleged injury while she was handling pipe with a Stilson wrench.

Plaintiff testified that her accident occurred on July 23,1980. She saw a company physician on July 31. She did not work thereafter. In August she was hospitalized and had an anterior cervical fusion at two levels. She was still wearing a neck brace on the day of trial (April 13, 1981). The prognosis is maximum recovery four months from the date of trial after which she should be able to return to full duty. There is some suggestion of the presence of a carpal tunnel syndrome which may or may not be accident caused.

Although it is undisputed that the operation in August was necessary to correct a cervical condition, there is a dispute as to its causation. Specifically, the employer disputes that plaintiff suffered a job related accident.

Plaintiff and her husband were both employed by defendant. On July 31 he was terminated because of an altercation on the job. On the same day plaintiff reported to her superiors that she had had an accident about a week before, on July 23. She made out an accident report and went to see a company physician. In the accident report she stated that three co-workers witnessed the accident, and named them. At the trial she testified that she had told two of her superiors when the accident happened, and mentioned it to other employees during the days intervening, and that she had had to be helped to perform some of her duties.

She called all eight of her co-workers on cross-examination. None of them witnessed the accident. None of them even heard about it until the day she and her husband left the job. In addition to failing to substantiate plaintiff’s testimony that she had had an accident on July 23, her co-employees were unable to substantiate her testimony that she was working in severe pain during the period between July 23 and July 31, or that she had even mentioned the accident to them.

She saw the company doctor Richert in Sulphur on July 31. She told him the accident had happened on the 23rd. She saw two neurosurgeons later and told one of them that the accident had happened either on the 3rd or the 23rd.

Plaintiff’s husband did not appear and testify. Two reasons were given for his absence: he stayed home to babysit for one of their daughters, who testified as a ‘before and after’ witness, and plaintiff’s counsel advised him to stay at home.

Two daughters testified as before and after witnesses. One was not asked when she learned about the accident and the other stated that she learned about it after July 31, although she saw her mother regularly.

The weight and credibility of the testimony at odds with plaintiff’s account of an accident causes the Court to conclude that her proof falls considerably short of a preponderance even by the liberal standards applicable in this type of case.

The Court finds that plaintiff has failed to prove that a job related accident occurred. Accordingly judgment must be rendered against her and in favor of defendant, dismissing her suit at her costs. The fees of the three expert witnesses who testified will be fixed at $150 each and taxed to costs. A formal decree will be signed when presented.”

In order to recover workmen’s compensation benefits, an employee must prove, among other things, that the personal injuries he received were “by accident arising out of and in the course of his employment.” See LSA-R.S. 23:1031 which is quoted in pertinent part below.

Whether a work-related accident occurred is a question of fact to be decided by the trial judge. Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975) and Prim v. City of Shreveport, 297 So.2d 421 (La.1974). After recognizing that the issue was one of causation, specifically whether plaintiff suffered a job-related accident, the district judge found that plaintiff did not carry her burden of proving a job-related accident. The judge’s decision depended on an evaluation of the plaintiff’s credibility and upon the preponderance of the medical and lay testimony. Findings of the trial judge on factual issues in a workmen’s compensation case are entitled to great weight and are not to be distrubed except on a showing of manifest error. Lanieux v. Iberville Services, Inc., 391 So.2d 1282 (La.App. 1st Cir. 1980) and cases cited therein; Canter v. Koehring Company, 283 So.2d 716 (La.1973). We have carefully reviewed the record under the established rules of appellate review and find it clearly supports the trial judge’s conclusion on this factual issue.

For the reasons assigned, the judgment appealed from is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . The correct name of plaintiffs employer is Port Pipe Terminal of Louisiana, Inc.

      . LSA-R.S. 23:1031, in pertinent part, provides:
      “If an employee, not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.”


text:
    Martin Wayne BAACK, et ux., Plaintiffs-Appellees, v. James D. LEE, et al., Defendants-Appellants.
    No. 82-122.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1982.

      Kenneth N. Simmons, Natchitoches, for defendants-appellants.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for plaintiffs-appel-lees.
    Before SWIFT, DOUCET and LaHAYE  (Ad Hoc), Judges.

       Judge Joseph A. LaHaye, 27th Judicial District Court, Parish of St. Landry, presided as Judge Ad Hoc in this decision.

   DOUCET, Judge.

Defendants were rendered liable in the sum of $837.00 for property damage to and trespass upon plaintiffs’ property. Defendants appeal. We affirm.

Plaintiffs, Martin Wayne Baack and Brenda Blue Baack, filed a suit for damages against defendants, James D. Lee and Otha Farmer, alleging that defendants, without their consent, destroyed a building belonging to and existing upon the premises of plaintiffs. Defendants reconvened alleging that the building was torn down and removed at the request of and with the consent and knowledge of plaintiffs, and sought damages for expenses for drilling of a water well, and mental anguish and distress as a result of malicious prosecution.

The record discloses that plaintiffs’ immediate ancestor in title, Vickie Lynn Olliff, along with the wives of the two defendants, were co-owners in common of a small tract of land in Sabine Parish. By act of partition dated July 1,1976, the three co-owners partitioned the property in kind with each receiving a specified parcel of land as shown by a survey, along with all improvements situated and located upon that property. By act of sale dated February 20, 1981, plaintiffs acquired the parcel of property received by Vickie Lynn Olliff Roshto, one of the parties to the original proceeding.

Subsequently defendants went onto plaintiffs’ property and tore down a structure described as a three-car shed. Suit followed. Trial was had, whereafter the trial judge, without assigning written or oral reasons, rendered judgment in favor of plaintiffs and against defendants.

Defendants appeal alleging: 1) the trial court committed manifest error in failing to grant their motion to dismiss, and 2) the trial court committed manifest error in rendering judgment in favor of plaintiffs. The crux of appellants’ complaint is that plaintiff failed to establish damages by a preponderance of evidence. We disagree.

Our review of the record convinces us that plaintiffs established a prima facie case. Mr. Lester Berry, Jr. testified that it would cost $837.00 to construct a new shed substantially equivalent to the one destroyed and removed by defendants. Considering the property involved and the evidence introduced, we believe plaintiffs sustained their burden of proof. Conversely, defendants offered little or no evidence to rebut Mr. Berry’s estimation of the value of the shed.

As aforementioned, the trial judge did not assign reasons for judgment, nor did he itemize damages according to whether they arose from property loss or mental anguish and distress occasioned by defendants’ trespass and removal of plaintiffs’ property. However, there is no error on the part of the trial judge in awarding both general and special damages in globo. Smith v. Travelers Indemnity Co. of Rhode Island, 374 So.2d 708 (La.App. 1st Cir. 1979). It is within the discretion of the trial judge to determine the award and its form, and absent a showing of abuse of discretion appellate courts will not alter this award. Id.

As was stated by this court in Roshong v. Travelers Ins. Co., 281 So.2d 785 (La.App. 3rd Cir. 1973): “When it is clear that a plaintiff has sustained some damage as a result of defendants’ fault, his demands will not be rejected merely because he cannot establish exactly the amounts suffered. Under such circumstances the court must fix quantum as best as it can.” 281 So.2d 789. We find the $837.00 award to fall within the trial court’s reasonable discretion considering all the facts and circumstances before it.

Realistically, in quantum issues, as in other issues, there must necessarily be a degree of uncertainty in predicting the ultimate result in a given case. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). This is particularly so where, as here, the award includes damages for mental anguish and distress. Hence trial judges are vested with much discretion. La.Civ.Code 1934(3). We find no manifest error. Accordingly, the judgment appealed is Affirmed at appellant’s cost.

AFFIRMED.


author: LaHAYE, Judge Pro Tem.

text:
    Malcolm O. SAYES, Plaintiff-Appellant, v. Alton TASSIN, Defendant-Appellee.
    No. 82-123.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1982.
    Ben C. Bennett, Jr., Marksville, for plaintiff-appellant.
    Harold J. Brouillette, Marksville, for defendant-appellee.
    Before SWIFT, DOUCET and LaHAYE, Judges.
   LaHAYE, Judge Pro Tem.

The matter before us concerns the location of a certain “Field Road” decreed by this court in Alton Tassin et al v. C. A. Rhynes et al., 366 So.2d 580 (La.App. 3rd Cir. 1978), writ denied 368 So.2d 123 (La.), to be the line of division between the property of Alton Tassin and Malcolm O. Sayes, two of the litigants in those proceedings and the parties in the present appeal. In pertinent part, the judgment of the court in that case reads, at page 587, as follows:

“It is further ordered, adjudged and decreed that Alton J. Tassin be recognized as the owner of a tract of land containing approximately seven acres located in Section 29, T3N, R4E, Avoyelles Parish, Louisiana, and being more particularly shown on that certain plat of survey by Louis J. Daigre Associates, Inc., dated May 18,1977, a copy of which is on record in these proceedings, said seven acres, more or less, being shown on said plat as all of that portion of the 15.1 acres allocated to Alton Tassin lying north of the ‘Field Road,’ as shown on said plat.”
“It is further ordered, adjudged and decreed that Malcolm 0. Sayes be recognized as having the right to possession of all of the 76.4 acres in dispute in this suit, except the 1.4 acres herein awarded to Foster Johnson, and the seven acres, more or less, herein awarded to Alton Tassin, the land of which Sayes is recognized to be the lawful possessor being more fully described as follows: A tract of land containing 68 acres more or less, located in Section 29, T3N, R4E, Avo-yelles Parish, Louisiana, and being more fully shown on that certain plat of survey by Louis Ji Daigre Associates, Inc., of date May 18,1977, a copy of which plat is of record in these proceedings, the said 68 acres, more or less, being all of the 76.4 acres shown on said plat as being in dispute in this suit, except the 1.4 acres designated as being owned by Foster Johnson, and the seven acres, more or less, lying north of the ‘Field Road’ which runs generally in an east and west direction across the 15.1-acre tract designated on said plat as being owned by Alton Tassin.”

The record of the case now before us reveals that pending appeal from a judgment of the Twelfth Judicial District Court in Rhynes, supra, Tassin, pursuant to an agreement between the parties that each would take possession of the land allotted him and that any party whose ownership was modified on appeal would pay to the ultimate owner one-fourth of the crops produced as rentals, took over the 15.1-acre tract which the district court had decreed to be his. It was Tassin’s testimony that in cultivating the property under the foregoing arrangement, he plowed up the “Field Road” which this court on appeal later determined to be the boundary between his property and the property of Sayes, and he established a new turn row.

After the appeals in Rhynes became final, Sayes, a civil engineer and surveyor, surveyed the property and established what he found to be the location of the “Field Road,” according to this court’s opinion in that case. He prepared a plat of survey, dated May 21, 1979, to which he attached the appellate judgment in that proceeding and recorded those documents in the Conveyance Records of Avoyelles Parish. Wayne Normand, to whom he had leased the land, then cultivated all of that part of the 15.1-acre tract which Sayes claims to be his and which includes two triangular tracts containing in the aggregate approximately three acres of land lying between the line Sayes established as the location of the “Field Road” and its location on the 1977 Louis J. Daigre Associates, Inc., plat.

Malcolm 0. Sayes and Lorey J. Normand filed the suit which is the subject of the present appeal in the Twelfth Judicial District Court for the Parish of Avoyelles, against Alton Tassin for damages they allege to have sustained, as owner and lessee respectively, in loss of use, loss of income and inconvenience during 1977 and 1978 through Tassin’s occupancy of a part of the land which Sayes alleges to have acquired by decree of this court in Rhynes. Tassin denied the allegation of the plaintiffs for damages and maintained his ownership to the contested acreage by virtue of the same decree and reconvened against Sayes for loss of use and for trespass by the latter’s subsequent possession of that acreage, and against Normand for damages to the land and growing crops and for trespass. By amendment he sought injunctive relief ordering the return of the area in controversy. The damage claims alleged by the parties were dismissed by the district judge on exception of prescription, except as they pertained to rentals alleged to be due.

On trial in the district court, Tassin, who had filed a plea of res judicata which was referred to the merits by the district judge, objected to any evidence which would have tended to vary the location of the “Field Road” as shown on the Louis J. Daigre Associates, Inc., 1977 plat in evidence and to which this court in Rhynes had referred. It appears to us that because that plat did not give bearings and distances concerning the “Field Road,” the district judge appointed Louis J. Daigre Associates, Inc. (now Daigre Engineers, Inc.), to stake its center line as shown on that survey. Mr. Gilchrist, a registered surveyor in the employ of the firm appointed by the court for the survey, staked out the road by scaling the plat referred to in the court’s order and made a return of his findings, together with a plat which showed the bearings and distances of the road as shown on the former Daigre survey.

Subject to the defendant’s previous objection that the plaintiffs could not vary the location of the “Field Road” as shown by the Daigre survey of May 18, 1977, which the district judge had sustained, the plaintiffs made an offer of proof during which Sayes introduced his own survey and his testimony relative thereto as well as other documentary evidence and testimony in support of his conclusion that the “Field Road” was improperly located on the 1977 Daigre survey and that instead it actually ran in a location different from where it had been staked by Gilchrist as the “Field Road” to which this court, in Rhynes, had adverted. Tassin, on the other hand, introduced contrary testimony.

On closing the note of evidence, the district court sustained the exception of res judicata which Tassin had filed and which had been referred to the merits, and adopted the line as shown on the survey of Daigre Engineers, Inc., dated December 30, 1981, prepared by Mr. Gilchrist, as determinate of the boundary line between Tassin and Sayes, and as established by this court in Rhynes. It granted judgment against Tassin in favor of Sayes for rent and/or land use in the sum of Four Hundred Dollars, with interest, and in favor of Tassin against Sayes on the former’s reconventional demand in the sum of Three Hundred Dollars, with interest, also for rent and loss of use, and as a partial setoff to the award in favor of Sayes. All other demands, including those of Normand, were dismissed, and Sayes perfected this appeal.

We affirm.

The pleadings filed in this suit by Tassin and Sayes indicate that each recognized the “Field Road” to have been judicially established by the previous suit as the boundary line between their properties. We understand counsel for Sayes to contend, however, that the plat of survey designating the location of the boundary line to which the judgment in Rhynes refers is in error, and also that the court in that case did not intend that its location on the plat was to be considered as showing its precise location on the ground, since it was not thereon designated in courses and distances in relation to other established points of survey, and also because no evidence was otherwise presented as to where it should be marked; therefore it is argued that the proffered evidence should have been considered by the district court to establish its true location.

We find these arguments to be without merit. The decision in Rhynes has become final. The arguments now offered by counsel were matters proper to that proceeding. They may not be urged now. The boundary, having been judicially fixed, is merged in the judgment, which, except for attacks upon it permissible within one year under LSA-C.C.P. art. 2004, can no longer be litigated. Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957); Branch v. Hinson, 183 So.2d 655 (La.App. 1st Cir. 1966); Opdenwyer v. Brown, 155 La. 617, 99 So. 482 (1924). It may, therefore, for the basis of a plea of res judicata under LSA-C.C. art. 2286.

The reported former suit indicated that Sayes, a defendant and plaintiff in recon-vention in that case, sought recognition of his right to possession of certain lands which included the area disputed in the case before us. His possession was recognized except for the 1.4 acres awarded to Foster Johnson, one of the litigants in the prior suit, and the area lying north of the “Field Road” as shown on the May 18, 1977, Daigre plat which was awarded to Tassin. The cause or legal principle upon which he relied for relief was his possession, which is the same legal principle upon which his specific demand for relief is based in this case, viz., his possession formerly recognized. In Mitchell v. Bertolla, 340 So.2d 287 (La.1976), our Supreme Court said, at page 291:

“The cause is said to be the judicial or material fact which is the basis of the right claimed, or the defense pleaded. 2 Plainol, traite Elementaire De Droit Civil 34 (11 ed. 1939). Stated otherwise:
‘.... Cause is the principle upon which a specific demand is grounded while cause of action embraces the cause and the demand, and is related to the party making the demand.... ”’

As we previously noted, the decree in Rhynes established the “Field Road” as shown on the May 18, 1977, Daigre plat in evidence in that suit as the boundary line between the properties of Sayes and Tassin. Although Sayes questions the correctness of the location of the boundary shown on that plat, the object of both suits is the same.

Because the former judgment was a final judgment between the same parties before us, with the same object, and based on the same cause, the judgment of the district court sustaining the objection to vary the location of the boundary line shown on the 1977 plat of Louis J. Daigre Associates, Inc., and maintaining the exception of res judi-cata as to that issue, was correct.

Affirmed.

SWIFT, J., concurs in the result.