text:
    Nora Lee PRINCE, Plaintiff and Appellant, v. William Ross PRINCE, Jr., Defendant and Appellee.
    No. 7755.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Ronald J. Bertrand, Lake Charles, for plaintiff and appellant.
    Hopkins & Little, James E. Hopkins, Lake Charles, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CULPEPPER, Judge.

Appellant, Nora Lee Prince, appeals from a judgment of the district court denying her demands for child support incidental to an action for final divorce.

The issue is whether in the divorce action the district court has in personam jurisdiction over the husband to continue the judgment of child support previously ordered in the separation proceeding, where the court had personal jurisdiction in the separation proceeding but the husband moved his domicile to another state prior to the filing of the petition for final divorce.

The appellant, Nora Lee Prince, filed a petition for separation from bed and board from her husband, William Ross Prince, Jr. Appellant also requested custody and child support for her two minor children. The husband thereafter filed an answer to the petition and reconvened for separation from bed and board and for custody of the children. At the hearing for separation held June 20, 1977, the husband, representing himself in proper person, was successful in obtaining a judgment of separation based upon the wife’s abandonment. The court awarded custody of the children to the wife and ordered the husband to pay child support in the amount of $200 per month for each child. The husband complied with that judgment.

Sometime thereafter, the husband, who previously had lived in Calcasieu Parish with appellant for 13 years, moved to Beaumont, Texas.

On June 30, 1978, petition for final divorce was filed by appellant based upon living separate and apart for one year from the date of the judgment of separation without reconciliation. An attorney was appointed by the court to represent the non-resident husband. By supplemental and amending petition, appellant advised the court that one of the children had since reached the age of majority, but she prayed for the custody and child support in the amount of $200 per month for the remaining minor child.

All pleadings were answered by way of general denial by the court-appointed attorney. On June 28, 1978, a judgment of final divorce and child custody of the minor was granted in favor of appellant. However, the demand for child support was denied. The court held that it lacked personal jurisdiction to enforce a judgment for child support against the nonresident husband who was no longer a Louisiana domiciliary. Plaintiff appeals from that portion of the judgment which denies child support.

At the hearing on the divorce, the curator ad hoc presented evidence of the return receipts signed by the husband demonstrating that he had received in Texas copies of all pleadings sent to him by certified mail by his duly appointed attorney.

In support of its ruling denying the demand for child support based on lack of personal jurisdiction over the husband, the court below relied on LSA-C.C.P. Article 6(2). This section provides that personal jurisdiction may be based upon service of process of an attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant only when the defendant is domiciled in this state. As there was no affirmative showing that the husband was domiciled in Louisiana when the petition for final divorce was filed, the court reasoned there could be no personal jurisdiction over the husband. We disagree.

Under LSA-C.C.P. Article 5091, the court may appoint an attorney to represent an absent defendant where the court already has jurisdiction over the person of the defendant. In the present case, the court clearly had personal jurisdiction over the defendant in the separation proceedings. By answering the petition for separation from bed and board, by filing a reconventional demand, by appearing in proper person at the separation proceeding and by complying with the judgment ordering child support payments, the husband clearly submitted himself to the exercise of in personam jurisdiction by the district court. LSA-C.C.P. Article 6(3).

In Imperial v. Hardy, 302 So.2d 5 (La.1974), our Supreme Court established the rule that once personal jurisdiction attaches for an award of child support, it continues for subsequent petitions to modify the award, even where the defendant moves his domicile to another state. Under this decision, the Courts of Appeal have held personal jurisdiction acquired in separation proceedings continues in subsequent divorce actions to permit continuation, reduction or increase in child support ordered in earlier separation proceedings. Heaton v. Garvin, 314 So.2d 363 (La.App. 3rd Cir. 1975); Webb v. Webb, 35 So.2d 1288 (La.App. 3rd Cir. 1978); DeFatta v. DeFatta, 352 So.2d 287 (La.App. 2d Cir. 1977). The Webb ease, in particular, is very similar to the present matter.

The rationale of the decisions is the strong state interest in child support matters. The obligation to provide child support under LSA-C.C. Articles 227 and 229 is the same in a separation or a divorce proceeding. As the Supreme Court stated in Imperial v. Hardy, supra:

“It would be intolerable if an action once properly begun could not proceed without the continued existence of the original basis for jurisdiction. Under such a rule a litigant who had availed himself of the court’s jurisdiction at the inception of the case could avoid the entry of judgment against him by the simple expedient of withdrawing from the state.” (Citations omitted)

For the reasons assigned, that part of the judgment of the district court denying the request for payment of child support is reversed. It is now ordered that defendant pay to plaintiff the sum of $200 per month for the support of the minor child, Laura Lee Prince, payable on the first and fifteenth of each month beginning from the date of judicial demand on January 16, 1979. Otherwise, the judgment is affirmed. All costs in the trial and appellate courts are assessed against the defendant.

REVERSED IN PART AND RENDERED.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Huey SHACKLEFORD, Plaintiff-Appellant, v. Hazel Tyler SHACKLEFORD, Defendant-Appellee.
    No. 7760.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellant.
    James C. Downs, Alexandria, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CUTRER, Judge.

The issue presented on appeal is whether a household, in which a mother is living in open concubinage with an unmarried man, can be a suitable environment for the mother’s nine year old son.

Huey and Hazel Shackleford married on February 27, 1960. Of this marriage, five children were born; two boys and three girls. Their ages at the time of the custody hearing (December 1979) were: Russell, 19; Evelyn, 17; Theresa, 15; Charlotte, 12 and Preston, 9.

On October 26,1978, an uncontested separation judgment was rendered in favor of Huey Shackleford and against Hazel Shack-leford. By agreement, the custody of four of the children was placed with the father and the custody of the remaining child, Preston, was placed with the mother.

On November 5, 1979, Huey Shackleford brought suit against Hazel for divorce on the ground that the couple had lived separate and apart for more than one year following judgment of separation. Shack-leford also sued for custody of Preston. The custody portion of this suit was contested. After hearing the custody suit, the trial court rendered judgment continuing custody of Preston with the mother. The record reflects the following minute entry:

“For the oral reasons this day handed down the custody of the minor child, Preston Wayne Shackleford, is to remain with the mother, Hazel Tyler Shackle-ford.”

The oral reasons referred to in this minute entry do not appear in the record. Huey Shackleford appeals from the judgment. We reverse and remand.

The basic facts of this case are not in dispute. Mrs. Shackleford began an adulterous affair with Wallace Gunter 12 to 14 years before her separation from her husband. In approximately October 1978, Mrs. Shackleford left her husband and moved into the home of Gunter. Mrs. Shackleford continued to live with Gunter and was living with him at the time of the divorce and custody hearing. She admitted this in her answer filed herein and both Mrs. Shackle-ford and Gunter testified that they were living together as man and wife in his home near the Forest Hill community. Mrs. Shackleford also stated that a baby had been born to her on October 29, 1979 and that Gunter was the father of same.

During the period of time that Mrs. Shackleford and Gunter were living together, Preston, the nine year old boy, was living with his mother and Gunter. She stated that Preston knew that Gunter was not her husband but she gave no thought to what effect such an arrangement may have on the boy.

Mrs. Shackleford was not employed. Gunter provided the support for Mrs. Shackleford and Preston after she and Gun-ter began living together. The photographs in evidence and the testimony reflect that the Gunter house is a brick home which has adequate facilities to provide for Gunter, Mrs. Shackleford, Preston, the new baby and Gunter’s mother. Preston was provided his own bedroom. Gunter testified that he loved the boy as his own.

Gunter and Mrs. Shackleford both testified that they loved each other and planned to get married as soon as the divorce became final. The brief filed by defendant states that the marriage took place after the divorce, but there is no evidence of such in the record and such cannot be considered by this court.

As to plaintiff’s circumstances, he was employed as a pulpwood cutter earning approximately $250.00 per week. He and the other four children occupied a four room house. Plaintiff stated that the house had two bedrooms, a kitchen and living room. The three girls slept in one bedroom and plaintiff and the oldest son occupied the other. The house contained no bath facilities. The house was kept and meals were fixed, principally, by Evelyn, the oldest daughter, along with help from relatives who lived nearby. The children attended school regularly and the needs of the children, otherwise, were apparently adequately attended to. The grandmother lived nearby and the children spent some of their time with her.

The plaintiff exercised his visitation rights by having Preston visit with him every other weekend. He stated that Preston seemed to enjoy his visits with the older children and was reluctant to return to Mrs. Shackleford.

These are the basic facts that give rise to the issue presented herein. We approach this problem recognizing that the standard of review in custody matters gives the trial court decision great weight, to be overturned only when there is a clear abuse of discretion. Fulco v. Fulco, 254 So.2d 603 (La.1971). The only object in custody cases is to determine the best interest of the child. LSA-C.C. art. 157.

The courts of this state have consistently followed the general rule that where a mother has recently lived in open and public adultery with her paramour for a substantial period of time, in total disregard of the moral principles of our society, the mother is morally unfit to maintain custody of her children. Beck v. Beck, 341 So.2d 580 (La.App. 2nd Cir. 1977); Johnson v. Johnson, 268 So.2d 114 (La.App. 3rd Cir. 1972); Kaufman v. Kaufman, 271 So.2d 629 (La.App. 1st Cir. 1972).

The above rule has been tempered, however, by the Supreme Court with its adoption of the “reformation” rule. The “reformation” rule was first adopted in the case of Fulco, supra. In Fulco, after the rule for a change of custody was filed, the mother terminated her adulterous relationship and was living with her parents at the time of the trial of the rule. The Supreme Court held that, due to the mother’s reformation from any previous course of open indiscretion and probable immorality, the custody of the children could be retained by the mother.

The “reformation” rule is further illustrated by the case of Monsour v. Monsour, 347 So.2d 203 (La.1977), in which the mother had been living in open adultery for a period of four months at the time that the father filed the rule to change custody. The mother married the man with whom the relationship had been carried out. This marriage took place before the custody trial. The Supreme Court reinstated the trial court’s decision which held that the mother had reformed, was leading a stable life and was suited for custody.

Another illustration of the judicial attitude toward this subject matter is illustrated by the very recent case of Cleeton v. Cleeton, 383 So.2d 1231 (La., 1980). The mother and father separated. After separation, the mother began seeing a married man named Dave Breedlove. During the period of November 1977 to April 1978, Breedlove spent one night a week with Mrs. Cleeton in her apartment. The three daughters, 17, 12, and 9 years of age, also lived in the apartment. Mrs. Cleeton occupied a bedroom on the ground floor and the children slept upstairs. When Breedlove spent the night, he usually left before the children awakened. When suit was filed for change of custody, Mrs. Cleeton terminated the open association with Breedlove.

The Supreme Court held that this was not a relationship that amounted to concubinage or the cohabitation of persons not legally married. The relationship was deemed adulterous but discreet. The court granted the custody to the mother.

Another important ease which must be noted is the recent case of Atteberry v. Atteberry, 379 So.2d 18 (La.App. 3rd Cir. 1979), writ granted, 381 So.2d 1231 (La. 1980). The general rule was tempered further by the Supreme Court in this case.

In Atteberry, it was established that Mrs. Atteberry had lived in open adultery with Warner “Sonny” Manning from January 1978 until the time of trial in August 1978. The two children were living with the mother during this time. At the trial of the custody matter, the testimony of Mrs. Atteberry and Manning was that they intended to get married at a future time.

This court held that the mother was so morally unfit that the custody of the two children could not be awarded to her. This court found that the best interest of the children required that custody be awarded to the father. A writ was granted by the Supreme Court and the case was:

"... remanded to trial court to determine whether best interest of children required granting custody of children to mother or father.”

The remand of the Supreme Court did not elaborate on the reasons for the remand but in view of the prior jurisprudence we are left with the impression that the court felt that the intended marriage may have been consummated, thereby giving the trial judge an opportunity to consider the case in light of the “reformation” rule.

In the case at hand, we have a situation of Mrs. Shackleford living in open concubinage with Gunter. She has been doing so since October 1978. She had a child by Gunter in October 1979. Preston, the nine year old boy, had lived with them during this time and was aware of their status. Such continuing, notorious, adulterous conduct, without reformation, cannot be condoned by the court by awarding custody to the mother. We hold that such conduct, without reformation, is so detrimental to the welfare of the child that he should be removed from the custody of the mother.

In view of the remand of the Supreme Court in Atteberry, supra, however, and the fact that Mrs. Shackleford and Gunter both testified that they intended to get married, we conclude that the custody portion of this case should be remanded to the trial court for a new trial, to determine whether the best interest of the child required granting custody to the mother or father.

For these reasons, the judgment appealed is reversed and set aside. This case is remanded to the district court for a new trial on the issue of custody of the child and the views expressed herein. All costs of this appeal are to be paid by defendant-appel-lee.

REVERSED; SET ASIDE AND REMANDED.

      . The brief of appellant states that this deficiency has been remedied since the hearing. This is not in the record and cannot be considered by this court.


author: SWIFT, Judge. CULPEPPER, Judge,

text:
    S. R. FINLEY, Plaintiff-Appellant, v. Davis B. HAILEY et al., Defendants-Appellees.
    No. 7770.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      George F. Griffing, Jonesville, for plaintiff-appellant.
    Jimmie C. Peters, Jena, for defendants-appellees.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   SWIFT, Judge.

In this petitory action the parties have stipulated that the plaintiff, S. R. Finley, has record title to the property which the defendants claim to own by virtue of 30 years acquisitive prescription. It consists of seven irregularly shaped tracts of land: Nos. 1, 2 and 3 are claimed by Davis B. Hailey; Nos. 4 and 5 by Charley Allen; No. 6 by Fred Allen; and No. 7 by Edward R. Skrable. Tract 3 is situated in Lot 1 of fractional Section 36 and the other tracts are in Lot 1 of fractional Section 26, all in Township 7 North, Range 3 East, LaSalle Parish, Louisiana. The district court sustained the pleas of 30 years prescription and recognized the defendants’ ownership of their respective lands. Plaintiff has taken a devolutive appeal.

The first specification of error is that the lower court was not empowered to recognize the defendants’ ownership in its judgment because their pleas of prescription were not set forth in a reconventional demand, citing Suire v. Primeaux, 363 So.2d 963 (La.App. 3 Cir. 1978). That case and its progenitor, Montgomery v. Breaux, 297 So.2d 185 (La.1974), dealt with judgments that sustained peremptory exceptions of acquisitive prescription in petitory actions where the exceptions were tried and sustained prior to a trial on the merits. It was held that in such circumstances a court is only authorized to dismiss the petitory action and cannot determine the ownership of the property. Although we are bound to follow this rather unsatisfactory rule, it is inapplicable in the instant suit as here 30 years prescription acquirendi causa was not pled by way of exception and tried preliminarily. Instead, it was pled in the answer as an affirmative defense and sustained after a trial on the merits.

The other two specifications of error are directed at the sufficiency of the defendants’ proof of possession as owners and the failure of the court to find that they were precarious possessors. These will be considered together.

It is clear from the testimony in the record that each of Tracts 1 through 6 was entirely enclosed by fencing before 1939, probably in the early 30’s. Each defendant used his land for agricultural purposes every year. At first corn or other crops were planted and subsequently some of the tracts were used as hay meadows. No evidence was offered by the plaintiffs which contradicted this. Most witnesses testified that the defendants and their ancestors were recognized in the community as owners of their respective tracts. No attempts were made to evict them and no one told them to vacate the premises. Under the circumstances we certainly cannot say that the trial judge erred in concluding that the defendants’ respective possession of Tracts 1 through 6 was sufficient to establish ownership thereof through 30 years prescription even though the tracts were not assessed to such parties and no taxes were paid by them thereon. William T. Burton Industries, Inc. v. Cook, 322 So.2d 880 (La.App. 3 Cir. 1975).

The plaintiff’s contention that the failure of defendants to assert any interest in or claim royalty from a producing oil well located a short distance north of Tract 5 indicates they did not possess as owners of their respective properties lacks merit. The well was not located on any of the land involved in this suit nor was any proof offered which indicated that it produced oil from same.

Nor can we agree with the plaintiff’s contention that the defendants were precarious possessors unable to prescribe under LSA-C.C. Arts. 3490, 3510 and 3511. The record contains testimony by a witness who worked for Louisiana Delta Hardwood Lumber Company (apparently a record owner in the early chain of title) that Melinda Hailey, defendant Hailey’s mother, executed several leases to the lumber company for $1.00 a year around 1947. At the time she was living with Davis Hailey and his brother in a house erected by the former in the early 1930’s on Tract 3. Melinda and her husband had erected a log house and occupied all or part of Tract 3 since the early 1890’s. She died in 1961 and was predeceased by her husband.

Defendant Hailey admitted that his mother signed “some kind of little old paper” for one year two or three times before World War II. However, he said he had not read them and did not know what they were. These documents were not recorded and neither the originals nor the copies could be produced. The trial judge concluded that without such instrument he could not determine whether they were actually leases that affected the land possessed by Mrs. Hailey or the other parties to this suit. Also he believed it improbable that Mrs. Hailey would knowingly relinquish long vested rights for only a dollar. Therefore, the judge concluded that no acknowledgement of Delta’s title was adequately proven. The other defendants denied that they or their ancestors had executed any leases covering their respective tracts.

LSA-C.C. Art. 3520 provides that prescription ceases to run whenever the possessor acknowledges the right of the person against whose title they prescribe. Although the case involved liberative prescription running against mineral servitudes, in Placid Oil Co. v. George, 49 So.2d 500, 505 (La.App. 2 Cir. 1951), reversed on other grounds, 59 So.2d 120 (La.1952), the court expounded on the requirements of this co-dal article, which is equally applicable to acquisitive prescription, as follows:

“We think it is well established by our jurisprudence that the acknowledgment contemplated by the codal article must comply with certain very definite requirements. The acknowledgment must be express; it must be certain; it must be definite; it must be accompanied by or coupled with the clear purpose and intention of the party to interrupt prescription by such an acknowledgment.”

And in Montgomery v. Breaux, 338 So.2d 314, (La.App. 3 Cir. 1976), with respect to a verbal acknowledgment of non-ownership this court said:

“[SJuffice it to say that factual conclusions of the trial court, particularly where the credibility of witnesses is involved, should not be disturbed on appellate review except upon a finding of manifest error.”

We cannot say the trial judge so erred in his conclusion that the proof in this case was insufficient to establish an acknowledgment on the part of Melinda Davis which caused her possession and that of her son, Davis B. Hailey, to be precarious and defeated the plea of 30 years prescription acquirendi causa.

In regard to Tract 7, the record discloses that this was a part of a larger tract of land occupied as the homeplace of Jodie Allen, the father-in-law of Edward Skra-ble. The latter testified that Tract 7 is timberland, but he has been putting his cattle on it at night to “bed up” for about 25 years. He testified without objection that he had bought the interests of all but one of his wife’s co-heirs in the whole tract. Apparently, Jodie Allen and his family exercised some possession over the large tract for many years. However, the proof in the record does not establish that either Tract 7 or the whole tract has been completely enclosed by fences or other definite markings providing notice to the public of the extent of the possession for the required 30 year period. Consequently, we must necessarily conclude that the trial judge was manifestly in error in sustaining defendant Skrable’s plea of prescription as to this tract. Hill v. Richey, 221 La. 402, 59 So.2d 434 (La.1952); William T. Burton Industries, Inc. v. Cook, supra.

For the foregoing reasons, the judgment of the district court is reversed insofar as it sustains the plea of 30 years prescription of defendant, Edward Skrable, and recognizes his ownership of Tract 7 and in this respect It Is Ordered, Adjudged and Decreed that the plaintiff, S. R. Finley, is recognized as the owner of the following described property situated in LaSalle Parish, Louisiana:

“Tract 7:
“From the Northeast corner of Section 26, Township 7 North, Range 3 East, La-Salle Parish, Louisiana, go North 81 degrees 39 minutes West 2,666.9 feet to the point of beginning proper: From said point of beginning go South 144.8 feet; thence go South 80 degrees 27 minutes East 98.8 feet; thence go North 8 degrees 33 minutes East a distance of 145.4 feet or to the Northern boundary line of Section 26, Township 7 North, Range 3 East, LaSalle Parish, Louisiana; thence go North 81 degrees 39 minutes West a distance of 120.3 feet or to the point of beginning proper, containing 0.36 acres, and being more particularly described by plat or survey of James H. Tooke, Civil Engineer, prepared on June 7, 1978, at the request of Mr. Samuel R. Finley.”

It is amended to assess the costs of court, including this appeal, in the proportions of V1? to defendant, Edward Skrable, and % to plaintiff, S. R. Finley. Otherwise, the judgment of the district court is affirmed.

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

CULPEPPER, J., concurs and assigns reasons.

CULPEPPER, Judge,

concurring.

I concur in the majority opinion except that I think the affirmative defense of the acquisitive prescription of thirty years should be treated as a reconventional demand for recognition of defendants’ownership. LSA-C.C.P. Article 1005 states in pertinent part:

“If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.”

If we treat defendants’ affirmative defense as a reconventional demand, this case presents no procedural problem.


author: DOUCET, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and George J. John, Sr., Julia J. Smith, Plaintiffs-Appellees, v. Gerald LEMOINE, Defendant-Appellant.
    No. 7771.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Devillier & Ardoin, Ellis J. Daigle, Eunice, for defendant-appellant.
    McBride & Brewster, Glynn Rozas, Lafayette, for plaintiffs-appellees.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   DOUCET, Judge.

This tort action arises out of an automobile collision on Interstate-10 in Lafayette, Louisiana. Two ears were involved. One of them, a 1975 Lincoln Continental, was leased to George J. John, Sr. and driven by his son, George J. John, Jr. It was insured by State Farm Mutual Automobile Insurance Company. The other car, a 1977 Ford Granada, was owned and operated by Gerald A. Lemoine.

George J. John, Sr., State Farm, and Julia J. Smith, a guest passenger in the Lincoln, brought this suit against Gerald Lem-oine. They seek the recovery of damages incurred in the repair of the Lincoln and in the medical treatment of injuries sustained by Mrs. Smith in the accident. Lemoine answered and reconvened against State Farm, seeking recovery for the damage to his automobile and for personal injuries, which he sustained in the accident. Following a trial, the district court rendered judgment against Lemoine and in favor of George J. John, Sr. and State Farm in the sums of $500 and $4,347.60, respectively. Lemoine’s reconventional demand was dismissed. From that judgment, he appealed.

The accident giving rise to this suit occurred on September 1, 1977 at approximately 7:04 P.M. There was still full daylight, and the weather was clear. Both vehicles were headed in an easterly direction on Interstate-10, with the Lincoln driven by John in the lead in the right lane. The Lincoln stalled on the ascent of a railroad overpass, on which there was no shoulder for emergency parking. John put the car in neutral, activated the emergency flashers, and attempted to restart the engine. He was able to get it started several times, but it would stall again after traveling only a few feet.

At the same time, Lemoine was proceeding easterly in the left lane, following a large tractor-trailer rig at a distance of 100-150 feet. The tractor-trailer slowed down on the ascent of the overpass, and Lemoine began closing in on it. When he was about 80 feet behind the trailer, he moved into the right lane and began going around it. He did not observe the Lincoln, which by then was near the top of the overpass and either barely moving or stopped, until he was alongside the trailer and could not return to the left lane. He applied his brakes, but he was unable to stop in time to avoid the collision.

The trial judge found that under the circumstances Lemoine was negligent in failing to maintain a proper lookout. On appeal, Lemoine argues that he erred in doing so. We disagree. Lemoine testified that he did not see the Lincoln until he was approximately 100 feet behind it. He suggested that he had not been able to see it earlier because of its position on or near the flat portion at the top of the overpass. However, he also testified that when he executed his passing maneuver, he was observing the trailer and the other vehicles in the immediate vicinity, and not looking up ahead. On the other hand, John testified that he observed Lemoine approaching when he was several hundred feet away, and that when it became apparent that Lemoine hadn’t observed the flashing lights, he tapped his brakes in an effort to get his attention.

A driver of a left-hand drive vehicle is clearly at a disadvantage when passing on the right. Particular caution is required to fulfill his duty to observe the road ahead of him in order to ascertain that the maneuver can be carried out safely. After reviewing all of the evidence in the record, we agree with the trial judge’s conclusion that the accident in this case was the result of Lemoine’s breach of that duty. O’Reilly v. State Farm Mutual Automobile Insurance Company, 230 So.2d 630 (La.App. 2nd Cir. 1970), which is cited by Lemoine, is inapposite. Different circumstances in that case clearly established that the driver of the following vehicle could not have observed the disabled car in time to avoid the accident. The disabled vehicle was at the bottom of an overpass, and the accident occurred at nighttime, during a heavy rain.

Alternatively, Lemoine argues that the trial judge erred in failing to find that John was contributorily negligent. John testified that his car stopped once earlier that day. However, he also testified that it restarted immediately and gave him no further difficulty until it stalled on the overpass. We agree with the trial judge’s conclusion that this single, isolated incident was not sufficient to warn John that the car was not roadworthy. Lemoine also argues that John was negligent in failing to get out of his car to warn approaching motorists. However, according to John’s uncontradieted testimony, he did not have sufficient time to do so after it became apparent that he would not be able to get the car going again. Under these circumstances, we find no error in the trial judge’s finding that John was not contributorily negligent.

For the above and foregoing reasons, the judgment appealed is affirmed. All costs of this appeal are assessed to the defendant-appellant.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    A. A. SOLLAY, Plaintiff and Appellee, v. SOLLAY FOUNDATION & DRILLING, INC., Defendant and Appellant.
    No. 7777.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Hunt, Godwin, Painter & Roddy, Fred R. Godwin, Lake Charles, for plaintiff-appel-lee.
    Camp, Carmouche, Palmer, Barsh & Hunter, Adam Ortego, Lake Charles, for defendant-appellant.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CULPEPPER, Judge.

The plaintiff, A. A. Sollay, a former director, stockholder and employee of the defendant corporation, Sollay Foundation & Drilling, Inc., sues for salary, vacation pay and bonuses, and penalty wages and attorney’s fees under LSA-R.S. 23:632. By supplemental and amending petition, plaintiff seeks liquidated damages and attorney’s fees from the defendant corporation, Florence H. Sollay, Allister C. Sollay and Alta A. Baker, jointly and in solido, in the total amount of $125,000 for violation of a stock redemption plan and agreement entered into between the parties. Plaintiff’s wife, Mrs. Norma M. Sollay, also a former director of the corporation, joined her husband in the suit for liquidated damages and attorney’s fees. The trial court awarded plaintiff $3,583 as the balance due on his salary and vacation pay, plus $2,313 on his bonus. The claim for penalty wages and attorney’s fees was denied. Plaintiff and his wife together were also awarded $25,000 in liquidated damages plus $5,000 attorney’s fees under the redemption contract. From this judgment, defendants appeal. Plaintiffs answered the appeal, seeking (1) reasonable attorney’s fees (not penalty wages) under LSA-R.S. 23:632, (2) an increase in the bonus award to $18,850 and (3) an increase in liquidated damages to $125,000 each.

The issues on appeal are: (1) Should attorney’s fees be awarded under LSA- R.S. 23:632? (2) Is plaintiff entitled to a bonus, and, if so, how much? (3) Did defendants violate certain provisions of the stock redemption agreement, thus entitling plaintiff to liquidated damages and attorney’s fees? (4) If so, what is the amount of liquidated damages due?

This lengthy and protracted litigation involves a closely held corporation, formerly Sollay Brothers, Inc., owned by two families in Lake Charles, Louisiana. The sole directors and stockholders of the corporation were plaintiff, A. A. Sollay, and his brother, C. B. Sollay, and their respective wives. Ownership of the corporation was equally divided between each family. The control and management of the business was entirely handled by the two brothers. In September of 1974, C. B. Sollay, president of Sollay Brothers, Inc., died. On November 12,1974, the widow and heirs of C. B. Sollay secured the appointment of a temporary receiver. On December 18,1974, the receiver terminated A. A. Sollay’s active employment with the corporation. On June 5, 1975, plaintiff brought this suit.

THE CLAIM FOR WAGES AND ATTORNEY’S FEES UNDER LA. R.S. 23:632

After his termination by the temporary receiver, plaintiff made written demand for payment of the balance of his salary, vacation pay and bonus. The trial court, finding proper demand had been made, held plaintiff was entitled to $3,573 in unpaid wages and vacation time, but denied penalty wages and attorney’s fees due to equitable considerations. Plaintiff now contends the, trial court erred in denying his claim for attorney’s fees. In his answer to the appeal, plaintiff does not seek penalty wages.

LSA -R.S. 23:632, as amended in 1964, provides in pertinent part that “Reasonable attorney’s fees shall be allowed the laborer or employee ... in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

Prior to the 1964 amendment to this section, equitable defenses of the employer were allowed to defeat the claim for attorney’s fees in an employee’s suit for unpaid wages. The section as amended now requires the payment of attorney’s fees despite any good faith defenses of the employer, provided the employee’s suit be “well-founded.” See Carriere v. Pee Wee's Equipment Company, 364 So.2d 555 (La. 1978) and Letulle v. S & E Oil Company, Inc., 387 So.2d 703 (La.App. 3rd Cir. 1980). In the instant case, plaintiff was dismissed without receiving his full monthly salary for November and part of December. His suit for wages is clearly well-founded. Accordingly, he is entitled to reasonable attorney’s fees, which we fix in the sum of $1,000.

Appellants urge on appeal that plaintiff cannot recover against the corporation for his unpaid wages for the reason that he was dismissed by a court-appointed receiver, who is a ministerial officer and representative of the court rather than of the corporation. See General Motors Truck Company of Louisiana v. Caddo Transfer & Warehouse Company, 179 So. 843 (La. 1938). Appellants contend the corporation cannot be responsible for the acts of the receiver in dismissing plaintiff.

Appellants’ argument may have had merit had the corporation been placed in permanent receivership. In the present case, however, Sollay Brothers, Inc. was never declared in dissolution, and only a temporary receiver was appointed. The proceedings for temporary receivership were dismissed after a short time, and the temporary receiver was discharged. Pretermit-ting any lengthy discussion of the legal distinctions between temporary and permanent receivers, we simply note that the corporation is now a solvent, ongoing concern and is the proper party to respond to plaintiff’s claim for wages.

PLAINTIFF’S CLAIM FOR BONUS

The evidence shows that beginning with the fiscal year of 1966 through 1974, plaintiff and his brother each received a bonus of 25% of the net profits of the corporation. This bonus was in addition to a base salary. Proof of authorization of this bonus is evidenced by an unsigned copy of minutes of a meeting of the board of directors of the corporation held in 1963. Appellants do not deny that bonus payments were made annually thereafter as provided in the resolution. They argue, however, that there was no formal board meeting and that payment of the bonus throughout the ensuing years was simply an unwritten policy, which does not continue after the death of a principal stockholder.

The question of the validity and authorization of the 1965 meeting, in our opinion, yields to the fact that for a period of over eight years such bonus payments were in fact made and acquiesced in by the corporation. Defendants are now estopped to deny the authorization of the bonus. See Acadian Production Corporation of Louisiana v. Tennant, 63 So.2d 343 (La.1953).

The next issue is the method of computation of the pro rata amount of bonus to which plaintiff is entitled. The fiscal year of the corporation ended on September 30 of each year. Plaintiff was discharged by the receiver on December 18, 1974. Thus, he worked a total of 79 days during the fiscal year that started on October 1, 1974. Although there is some question about its correctness, a profit and loss statement of the corporation for the first quarter, ending December 31, 1974, showed a net profit of $86,221. Plaintiff contends his bonus should be based on this first quarter net profit. Thus, he contends he is entitled to 79/92 of 25% of $86,221, or the sum of $18,509.

The trial judge found the evidence showed the bonus paid in previous years was based on the net profit for the full fiscal year, not the month, or the quarter, or six months, or any other period. C. B. Sollay died in September of 1974, just prior to the end of the fiscal year, and his bonus was paid on the basis of the net profit for the full fiscal year of 1974. The trial judge concluded it was the intention of the parties that the bonus be paid on the basis of the full fiscal year, rather than any other period. We find no manifest error in this factual conclusion.

On this basis, the trial judge found that the net profit of the corporation for the fiscal year beginning October 1, 1974 was $42,754. In computing plaintiff’s pro rata share of this net profit, the trial judge awarded 7%65 of 25% of $42,754, thus producing the figure of $2,313, representing the bonus to which plaintiff is entitled. We find no manifest error in these conclusions. The judgment on rehearing (Tr. 248) computed 25% of $42,574 as $11,156, but this is merely a typographical error.

Plaintiff cites Hodges v. Decoteau, 314 So.2d 500 (La.App. 1st Cir. 1975) in which the plaintiff was employed on a monthly salary of $1,000 plus 50% of the corporation’s profits. Plaintiff was terminated in July. The court affirmed the jury award basing plaintiff’s bonus on the net profits for the portion of the year during which he worked. We have no quarrel with the decision in Hodges. However, the question in each of these cases is the construction of the agreement in accordance with the intention of the parties. This is an issue of fact. We find no manifest error in the finding of fact by the trial judge in this regard in the present case.

THE CLAIM FOR LIQUIDATED DAMAGES AND ATTORNEY’S FEES RESULTING FROM THE STOCK REDEMPTION PLAN AND AGREEMENT

Following his dismissal by the temporary receiver on December 18, 1974, plaintiff and the widow and heirs of C. B. Sollay entered into a stock redemption plan and agreement on February 6, 1975. As a result of this agreement, A. A. Sollay and his wife transferred all their stock in the corporation to the succession of C. B. Sollay. Plaintiff’s claim for damages is based on two paragraphs of the agreement; namely 14 and 15 which read:

“14. Within 12 months following the redemption, the redeeming shareholder shall cause Sollay Brothers, Inc. and Sol-lay Brothers of Texas, Inc. to change their names in such a manner as to delete the words ‘Brothers’, and to insert a word or words descriptive of the corporation’s business.”
“15. Any of the corporations or any of the individuals who are parties to this plan and agreement shall have the option to sue for damages for any breach of this agreement or to sue for specific performance, and any individual or any of the corporations who fail to comply with the terms of this agreement shall be obligated to pay reasonable attorney’s fees and costs incurred in enforcing the agreement, and in addition to any damages or specific performance, shall pay an additional penalty sum to the grieved parties in the amount of $25,000.”

The deletion of the word “Brothers” was to be accomplished by February 6, 1976. Within this time, the name of the corporation was changed with the secretary of state from Sollay Brothers, Inc. v. Sollay Foundation & Drilling, Inc. and the checking account name and the name on the letterheads and envelopes was changed. The present dispute centers on the continued use by Sollay Foundation & Drilling, Inc. of the telephone listing in the Lake Charles telephone directory as “Sollay Brothers- Foundation Drilling, Inc.” in the March, 1976, October 1976 and November 1977 telephone directories. Plaintiff also complains of a sign at the corporation’s office in Baton Rouge containing the words “Sollay Brothers Foundations”, which was allowed to remain up until sometime in April of 1976 with the knowledge of the corporation’s president, John B. Baker.

At the trial there was conflicting testimony as to whether or not South Central Bell had been notified of the change of name. Mr. Baker testified that, following the agreement, he called the company several times and requested that the change be made. Ms. Louise Lominac, supervisor for the business listings department at the Lake Charles telephone office, testified that a change of listing is usually made within three days after the request, and that, in her opinion, it was very unlikely the company would have made the same error on three successive listings had a request in fact been received. The trial judge, obviously impressed with the testimony of Ms. Lominac, found the contract had been breached and held in favor of plaintiff. We agree with the trial court that in view of the rather severe penalty imposed for failure to completely effectuate the name change, it was incumbent upon defendants-appellants to take further action to insure the change was accomplished. We find no manifest error in these factual conclusions of the trial judge.

After oral arguments in our Court, defendants filed a supplemental brief raising a new argument not previously urged. They contend that a putting in default is a necessary condition before plaintiffs can recover the liquidated damages stipulated in the contract. For authority they cite LSA - C.C. Article 2126, which is in the section of the code dealing with penalty clauses:

“Art. 2126. Whether the principal obligation contain, or do not contain, a term in which it is to be fulfilled, the penalty is forfeited only when he who has obligated himself either to deliver, to take, or to do, is in default.”

In answer to defendants’ supplemental brief, plaintiffs contend that the listing of the name of Sollay Brothers Foundation, Inc. in the phone book and on the sign in Baton Rouge constituted an active violation of the contract, and, therefore, no putting in default was necessary. LSA-C.C. Article 1932.

The contract specifically required the redeeming shareholder to have the words “Brothers” deleted from the corporate name by February 6, 1976. Defendants failed to do so. We agree with defendants that this was a passive breach.

Although we find the breach here to be passive, this case falls within one of the exceptions listed in LSA-C.C. Article 1933. That article reads in pertinent part:

“Art. 1933. When the breach has been passive only, damages are due from the time that the debtor has been put in default, in the manner directed in this chapter.
“The rules contained in this and the preceding articles, however, are subject to the following exceptions and modifications:
“1. When the thing to be given or done by the contract was of such a nature, that it could only be given or done within a certain time, which has elapsed, or under certain circumstances, which no longer exist, the debtor need not be put in legal delay to entitle the creditor to damages.”

Several early cases have construed this exception to mean that in contracts stipulating that they must be executed within a specified time, or where time is of the essence, a putting in default is not necessary. McMillan & Company v. Mills, 3 La.App. 9 (1925); Federal Signs System v. Groff, App., 1923 Orl. NO 9086. This is true where a specified time for performing the obligation expires without performance. Brown Carriage Company v. Cored, 7 La.App. 411 (1928).

Moreover, in the present case, once the 12 month period had passed without the required change of name in the telephone directory, it was impossible for defendants to comply with the contract. They could not recover all of the telephone directories. Thus, a putting in default would have had no effect. It is well settled that the law does not require a putting in default when such action would be a vain, futile and useless gesture. Voss v. Roach, 35 So.2d 142 (La.App. 2d Cir. 1948).

Defendants’ final contention is that the penalty award should have been modified by the trial judge because they had substantially complied with the provisions of paragraph 14. They rely on Civil Code Article 2127 which reads:

“Art. 2127. The penalty may be modified by the judge, when the principal obligation has been partly executed, except in case of a contrary agreement.”

The trial judge apparently attached little significance to the changes defendants had made and their attempts to have the telephone company correctly list the new name of the corporation. As noted by the judge, the purpose of the change of the name was to prevent the corporation from trading under its former name. Not changing the name in the phone directory surely had the most detrimental effect. We find no manifest error in the factual conclusions of the trial judge.

In their answer to the appeal, plaintiff and his wife contend they are each entitled to the sum of $25,000 as liquidated damages against each of the four defendants, Sollay Foundation Drilling, Inc., Florence H. Sollay, Allister C. Sollay, and Alta A. Baker, and in addition the sum of $25,-000 from the three individuals jointly, as widow and heirs of C. B. Sollay, for a total of $125,000 each to the plaintiffs. We find no merit in this argument. The above quoted portion of the agreement states “the grieved (sic) parties” receive $25,000 in liquidated damages. We agree with the construction of the agreement by the trial judge, that plaintiff and his wife are together entitled to $25,000 liquidated damages.

For the reasons assigned, the judgment appealed is amended to increase the award in favor of A. A. Sollay and against the defendant, Sollay Foundation Drilling, Inc. by the sum of $1,000, representing reasonable attorney’s fees under LSA-R.S. 23:632. Otherwise, the judgment appealed is affirmed.

AFFIRMED, AS AMENDED.


text:
    LOUISIANA FARM BUREAU RICE, INC., Plaintiff-Appellant, v. Robert H. MILLER, Defendant-Appellee.
    No. 7778.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Bean & Rush, Ernest Parker, Lafayette, for plaintiff - -appellant.
    Guillory, McGee & Mayeux, John Fonten-ot, Eunice, for defendant-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   DOUCET, Judge.

This suit was brought by the plaintiff, Louisiana Farm Bureau Rice, Inc., to enforce a rice marketing agreement allegedly breaehed by the defendant, Robert H. Miller. Following a trial, the district court rendered judgment in favor of defendant, dismissing plaintiff’s suit at its cost. From that judgment, plaintiff appeals. We affirm.

The record shows that plaintiff is a cooperative marketing association, which was organized under the provisions of LSA-R.S. 3:121, et seq., for the purpose of marketing rice produced by its members or patrons. Defendant, who is a rice farmer, is a shareholder in the association. On July 7, 1976, the parties entered into a rice marketing agreement. Plaintiff agreed to purchase, and defendant agreed to sell and deliver to plaintiff, all of the rice produced by or for him on 100 acres of land in St. Landry Parish for a period of four crop years, beginning with the 1976 crop. The agreement provided that delivery was to be made by the issuance of negotiable warehouse receipts in plaintiff’s name, and payments were to be made in installments. An initial payment was to be made upon delivery and quality analysis of the rice, and the final payment was to be deferred until the “pool” in which the rice was placed had been liquidated. The agreement also provided for liquidated damages of $25.00 for each acre of rice committed but not delivered to plaintiff. ,

Defendant delivered his 1976 crop to plaintiff and was paid according to the terms of the agreement. On September 27, 1977, he issued warehouse receipts to plaintiff for his 1977 crop, which had been harvested and was stored in bins on his farm. This dispute arose later that year when defendant refused to surrender the physical possession of the rice. When plaintiff demanded possession, it had not made the initial payment for the 1977 rice. In addition, defendant had not yet received the final payment for his 1976 crop.

The trial judge found that there was no realistic explanation for plaintiff’s failure to make the initial payment for the rice, which had been delivered by being put under warehouse receipts. Accordingly, he concluded that defendant was justified in treating the contract as dissolved of right and in refusing to carry out his obligations under it. He further concluded that- it would be unfair to allow plaintiff to collect damages under a contract that it had breached first.

On appeal, plaintiff argues that the trial judge erred by not finding that its failure to make the initial payment had been justified. It was established at the trial that the land referred to in the agreement is owned by defendant’s father, and that his father receives a percentage of the proceeds from the sale of the crop as rent. In addition, a percentage of the proceeds is put into a joint account maintained by defendant and his father to cover the costs of irrigating the property. Plaintiff claims that it could not make the initial payment, because defendant failed to give it the information necessary to properly distribute the payment.

Plaintiff offered the testimony of its former employee, Elizabeth Sicks, in support of its position. Miss Sicks testified that she had met with defendant at plaintiff’s offices, and that she had tried unsuccessfully to obtain the information. She testified that when she asked defendant for the information, he told her that he would have to check his records and get back to her later. However, he failed to do so, and she was unable to contact him by telephone, despite several attempts.

Miss Sicks’ testimony was directly contradicted by defendant’s. He acknowledges meeting with her; however, he testified that the purpose of the meeting was to discuss an error in the final payment for his 1976 crop. He denies having been asked for distribution information. In addition, both defendant and his wife, who is his bookkeeper, testified that the distribution information for 1977 was the same as the information that plaintiff had been given in 1976.

After examining all of the evidence in the record, we fully agree with the trial judge’s conclusions. Plaintiff was obligated to make the initial payment prior to the time that defendant refused to surrender the rice. We find nothing in the facts that would excuse plaintiff from fulfilling that obligation. Plaintiff has not shown that it would have incurred any liability to anyone by making the payment entirely to defendant or by distributing it according to the information that it had been given the year before. It may have been its practice to update distribution information annually. However, the fact that it could not, or at any rate did not, do so in this case did not make it impossible for it to perform its obligation. Accordingly, its failure to make the payment within the time specified in the contract constituted a breach of the contract.

It is well settled that a buyer, who is in default by failing to pay promptly, cannot maintain an action for damages for the seller’s failure to fulfill a contract to sell and deliver goods. LSA-C.C. Art. 2487; Smith v. Anders, 148 La. 474, 87 So. 241 (1921); Bunge Corporation v. McGuffie, 317 So.2d 227 (La.App. 3rd Cir. 1975). We therefore find that the judgment dismissing plaintiff’s suit is correct.

For the above and foregoing reasons, the judgment appealed by plaintiff is affirmed. All costs are assessed to the plaintiff-appellant.

AFFIRMED.


author: SWIFT, Judge.

text:
    Deloris W. MOUTON, Plaintiff-Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Defendant-Appellee.
    No. 7780.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Jones, Jones & Alexander, Glenn W. Alexander, Cameron, for plaintiff-appellant.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, John S. Bradford, Lake Charles, for defendant-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   SWIFT, Judge.

This is a workmen’s compensation suit in which the district court denied benefits, finding that the plaintiff, Deloris W. Mouton, was not in the course and scope of her employment at the time of her accident. We affirm.

The trial judge made the following findings of fact and conclusion of law which we approve and hereby adopt as our own:

“The Court finds, as a fact, that the accident in which the plaintiff was injured occurred some approximately 15 minutes prior to her work time, while she was en route to work. Plaintiff was a guest passenger in an automobile being driven by a friend who was transporting her to her place of employment. The vehicle in which plaintiff was riding was traveling north on First Avenue, in the City of Lake Charles, Calcasieu Parish, Louisiana, which is a paved two-lane street for traffic operating in directions both north and south. At the approximate scene of the accident, this street is intersected from the east by See Street, which is also a paved two-lane street for two-way traffic. From the top of the ‘T’ formed by See Street, a private roadway, with a shell surface for two-way traffic, extends to the west, and immediately after leaving the paved surface, that driveway crosses a railroad track. The Court finds, as a fact, that the accident was caused by an emergency created by the left-turning vehicle in which plaintiff was a passenger, and that an oncoming vehicle headed south then went apparently out of control and collided with the right side of the vehicle in which plaintiff was riding, at a point approximately one or two car lengths to the west of the paved street surface thereby causing the injuries complained of by plaintiff. Although the vehicle in which plaintiff was riding came to rest astride the railroad track, the tracks played no part in the accident, and the presence of the railroad in that vicinity in no wise contributed to plaintiff’s injuries. The defendant-employer had no supervision or control of the plaintiff-employee en route to or from her place of employment. The Court has noted, particularly, the case of Templet versus Intracoastal Truck Line, Incorporated, cited at 230 So.2d 74, and also a more recent Court of Appeal, Third Circuit case, Fife versus Allied Supermarkets, Incorporated, reported at 284 So.2d 561. In the Templet ease, the Supreme Court of Louisiana reviewed the history of the doctrine of proximity or threshold as it applies in workman’s compensation cases. This Court finds that there was no peculiar hazard inherent in the intersection or the shell road immediately to the west of it. As in the Templet case, the facts presented in this case do not show any special risk that the defendant-employees must assume in turning off the public street to enter the employer’s premises which would not be encountered by the general public in turning off such road, or other roads similarly situated, and that there was no peculiar or greater hazard to the employee herein than that faced by any other motorist using the public streets.”

The general rule in Louisiana is that an employee is not considered to be in the course of his employment while traveling to and from work. Chancellor v. Schwegmann Bros. Giant Super Markets, Inc., 363 So.2d 1282 (La.App. 4 Cir. 1978). For the so called “threshold” doctrine to apply, the employee must be subjected to to a distinctive or peculiar risk not common to the public that is in fact the cause of the accident. In other words, the risk faced by the employee in entering the employer’s premises must be one which would not be encountered by the general public in turning off such road or other roads similarly situated. Templet, supra.

The plaintiff argues that although the accident occurred outside the gates of her employment, the roadway on which the accident occurred is the only means of ingress and egress afforded to workers and therefore is a hazard to which the employees were regularly exposed, citing Fabre v. Travelers Insurance Company, 286 So.2d 459 (La.App. 1 Cir. 1973), writ refused Feb. 1, 1974. The facts of that case are readily distinguishable from those of the instant suit. In Fabre the workers traveled a roadway under which Monte Sano Bayou passed. It was on property either owned or leased by the employer and was constructed at its request. The night before the accident a heavy rainfall had caused the supporting dirt fill of the road to be washed out by the bayou. The plaintiff, driving to work in the pre-dawn darkness and rain, did not see the washout until it was too late to avoid the hole, thus causing inundation of his vehicle and personal injuries. There was no such inherent hazard to which Mrs. Mouton was regularly exposed.

The plaintiff introduced no evidence to support her allegations that the railroad tracks either made the intersection more hazardous or was a cause of the accident. In fact, the testimony from Officer Duhon, who investigated the collision, was to the effect that the railroad tracks played no real part in the accident.

We are in full accord with the trial judge’s finding that the turn off North First Avenue into the private drive leading to the plaintiff’s employer’s premises did not involve any unusual or greater hazard to such employees than that faced by any other motorist using the public streets. Consequently, the threshold or proximity rule is inapplicable and Mrs. Mouton is not entitled to workmen’s compensation benefits.

For the above reasons the judgment of the district court is affirmed'at appellant’s cost.

AFFIRMED.


text:
    Marvin I. APLIN, Plaintiff-Appellee, v. Arch H. APLIN, Jr., et al., Defendant-Appellant.
    No. 7789.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Reeves & Owens, Jack F. Owens, Harri-sonburg, for plaintiff-appellee.
    Crawford A. Rose, Jr., Rayville, for defendant-appellant.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   DOUCET, Judge.

This suit arises out of a sale of land to the United States Government. The land was sold by Arch H. Aplin Enterprises, Inc., a small, family corporation. The plaintiff, Marvin I. Aplin, is a shareholder in the corporation. The defendants named in his original petition, William M. Aplin, Jimmy Dale Aplin, Onita Aplin McGuffee, and Arch H. Aplin, Jr., are also shareholders and officers or directors of the corporation. Plaintiff alleged in his original petition that the land had been sold for less than its actual value, and that the sale constituted a breach of a contract that he had with the defendants. He sought damages equal to the difference between the sale price and the alleged actual value of the land. Alternatively, he alleged that the sale was an ultra vires act on the part of the defendants, as well as being subject to recision for lesion beyond moiety, and prayed that the defendants be ordered to take all necessary steps to have the sale set aside.

The defendants filed peremptory exceptions of failure to join an indispensable party and no right or cause of action. Plaintiff amended his petition to name the corporation as a defendant, and the exception of no cause of action was sustained, as a result of which thejndividual defendants were dismissed from the suit without prejudice.

Subsequent to their dismissal, the individual defendants joined the corporation in filing a motion for summary judgment, to which they attached a copy of the act of sale, minutes of the corporation containing a resolution of the board of directors authorizing the sale, and an appraisal of the land. Plaintiff filed a different appraisal, and the motion was set for hearing on January 30, 1980. On that date, the court overruled the motion for summary judgment, and without taking additional evidence or entertaining arguments, rendered judgment in favor of plaintiff and against the corporation, ordering the corporation to take legal action within 60 days to recover the land or the difference between its actual value and the sale price. Plaintiff was authorized to bring the action as an agent of the corporation within 60 days after the corporation failed to act or committed itself not to act. The judgment further provided that in the event the action was successful, the corporation was to pay all costs, including reasonable attorney’s fees. From that judgment, the corporation appealed. Plaintiff neither appealed, nor answered the appeal.

Since the individual defendants have been dismissed, and plaintiff has neither appealed nor answered the appeal, he has waived his right to relief for breach of contract or breach of the defendants’ fiduciary obligations as officers and directors, at least insofar as this suit is concerned. Only his alternative demand of relief against the United States Government, based on the corporation’s alleged right to rescind the sale for lesion beyond moiety, is viable. Thus, the present posture of this case is that of a secondary action brought under LSA-C.C.P. Art. 611.

When viewed in this light, it is readily apparent that the pleadings in this case are seriously deficient. Many of the requirements of LSA-C.C.P. Arts. 596 and 611 have not been met. The most striking deficiency is plaintiff’s failure to join the United States as a 'party, as required by LSA-C.C.P. Art. 596(3). The use of the word “shall” in the opening paragraph of that article shows clearly that the United States is an indispensable party to this action. However, the United States can’t be made a party to these state court proceedings, because the United States District Courts and the United States Court of Claims have been vested with exclusive jurisdiction over actions in which the United States is a party. U.S.Const. Art. Ill, Sec. 2; 28 U.S.C. Sec. 1346.

Naturally, our esteemed brother of the district court was aware of this fact. In his oral reasons for judgment he indicated that the result he was trying to achieve was the transfer of this matter to a federal court which has subject matter jurisdiction. Unfortunately, the evidence in the record does not support the judgment forcing the corporation to pursue this matter in federal court either through its officers and directors or plaintiff acting as its agent. Nor was it sufficient to support the motion for summary judgment, as the corporation argues on appeal. The discrepancy between the two appraisals, which were submitted, leaves the issue of the value of the land unsettled. This issue could only be decided by taking additional evidence to determine which is the more accurate.

We can solve the problem thus presented by noting the failure to join an indispensable party on our own motion, as provided by LSA-C.C.P. Art. 927, and dismissing plaintiff’s suit. Since the merits of his claim have not been reached, our decision will not bar him from bringing a new action in federal court. However, he will have to do so in his individual capacity. In addition, since the individual defendants were dismissed without prejudice, his right to pursue an action against them in state court for breach of a contractual or fiduciary obligation is preserved.

For the reasons assigned above, the judgment appealed is reversed and set aside, and judgment is rendered dismissing plaintiff’s suit at his cost. All costs of this appeal are assessed against the plaintiff.

REVERSED AND RENDERED.

SWIFT, J., concurs.


text:
    Nathan ALLBRITTON, Plaintiff-Appellee, v. Bill POWELL, Defendant-Appellant.
    No. 7793.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Kelly & Salim, Robert L. Salim, Natchi-toches, for defendant-appellant.
    Whitehead & McCoy, Kenneth D. McCoy, Jr., Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CUTRER, Judge.

This is a possessory action affecting a narrow, rectangular shaped tract of land located along the common boundary of properties owned by plaintiff, Nathan All-britton, and defendant, Bill Powell. Powell’s property is contiguous to Allbritton’s property for a distance of 660 feet. The property in dispute is a narrow strip along this 660 foot boundary which strip measures 44 feet wide on the south end and 74 feet wide on the north end.

The plaintiff alleges that he is the owner of a 120 acre tract of land, the eastern boundary of which is marked by a historical fence line which separates plaintiff’s property from defendant’s 36 acres. Plaintiff alleges that defendant caused a survey to be made with stakes or markers placed inside the fence line, which stakes delineated the strip described above. Plaintiff alleges that in approximately February 1979, defendant destroyed the fence line and cut timber off the strip in dispute. Plaintiff claims that he and his ancestors in title had possessed the property in dispute for many years and that such possession continued up to the date of the disturbance..

Powell filed an answer of general denial and a reconventional demand alleging that he was the possessor of the disputed property, and asked to be placed in possession thereof by the court.

After trial on the merits, judgment was rendered in favor of the plaintiff, maintaining his possession of the disputed area and ordering defendant to assert any adverse claim of ownership to the property in a petitory action within 60 days. Defendant’s reconventional demand was dismissed. Defendant appeals from this ruling. We affirm.

The principal issue presented on appeal is factual; that is, whether plaintiff has sustained the burden of proof under the law which would entitle him to a judgment of possession.

The elements of proof necessary in pos-sessory actions are set forth by this court in the ease of Broussard v. Motty, 174 So.2d

246, 248, 249 (La.App. 3rd Cir. 1965), as follows:

“To maintain the possessory action, the possessor must allege and prove, among other things, that ‘(1) He had possession of the immovable property * * * at the time the disturbance occurred,’ and ‘(2) He * * * had such possession quietly and without interruption for more than a year immediately prior to the disturbance * * LSA-C.C.P. Article 3658.
“The type of possession required of a plaintiff in a possessory action is identical in nature to the possession upon which is based the acquisitive prescription of thirty years. Hill v. Richey, et al., 221 La. 402, 59 So.2d 434; Broussard v. Louisiana Land & Exploration Company, et al., La.App. 1 Cir., 164 So.2d 84 (writs ref.).

“In Hill v. Richey, supra, where the issues raised were similar to those presented here, our Supreme Court said:

‘In the case of Prevost’s Heirs v. Johnson. 9 Mart, O.S., 123, 174, this court for the first time announced the principle that, “* * * When a person claims by possession alone, without showing any title, he must show an adverse possession by enclosures, and his claim will not extend beyond such enclosures.” In Ellis v. Prevost. supra, this rule of law was reiterated and has continued to be reiterated in the jurisprudence since that time.’ (59 So.2d 434, 439)
‘What the court means by “enclosures”, as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof. To say that the term means “enclosed only by a fence or wall” would be giving it a very strict and narrow construction, not justified or supported by the articles of the Code, as we have hereinabove pointed out, and would lead to absurd consequences in some cases.’ (59 So.2d 434, 440)”

Defendant contends that the old fence line was inadequate to show the limits of plaintiff’s possession. Defendant also contends that plaintiff failed to prove possession of the disputed property for one year prior to the disturbance.

THE CONDITION OF THE FENCE LINE

The testimony concerning the condition of the old fence is conflicting. The plaintiff testified that prior to the purchase of the 120 acres in August of 1978, he had leased the property for grazing purposes, beginning in 1974. He stated that the fence was in good condition from the time that he leased the land until the disturbance took place in early 1979. This testimony of plaintiff as to the condition of the fence was corroborated by August Ryberg, the surveyor, and Joe Winn, who was a prior owner of the property.

Defendant and his witness testified that the fence was in a state of disrepair and had gaps in some places where no fence existed at all. Defendant stated that after the survey was made, he cut timber off the disputed property up to the survey line.

The trial court resolved the issue of credibility in favor of the plaintiff, relying heavily on the surveyor, Ryberg. The trial court reasoned as follows:

“Concerning the issue of which party was in possession of the disputed tract, the testimony, as is usual in these types of eases, is conflicting. Of prime significance is the alleged ‘boundary fence’. Defendant contends that it was so run down and neglected as to be invisible in many sections, and therefore not adequate to serve as any indication of a boundary to plaintiff’s possession. On the other hand, plaintiff contends that the fence was standing upright, was clearly visible, confined plaintiff's live stock, and was ample to serve as a physical marker to the limits of plaintiff’s possession.
“In resolving this issue, the court is favorably impressed with the testimony of surveyor, August J. Ryberg, who appeared to be the only witness truly disinterested in the outcome of this case.
“In his deposition, Mr. Ryberg testified as follows:
‘Q. When you were out on the ground, Mr. Ryberg, I presume that you personally observed this fence line, and made whatever notations you needed to so that you could show it on the plat as you have done?
‘A. Yes, sir.
‘Q. First of all, tell me what that fence looked like, as best you can remember.
‘A. It’s a barbed wire fence, I believe it was a four strand fence.
“Q. Did it appear to be new?
“A. No, I wouldn’t say it was new, but it was in pretty good shape.
“Q. It was standing along the entire distance of the north Bill Powell line to the south Bill Powell line?
“A. Yes, sir.
“Q. Did it appear good enough where it would have held gentle cows, or livestock?
“A. I believe so.
“This testimony is very convincing and shows the Court that the fence was, in fact, sufficient to serve as a distinct boundary to the limits of plaintiff’s possession. ’’

The factual findings of the trial court will not be disturbed on appeal unless it can be shown that the trial court was clearly wrong in its findings. We find no such error in the trial court’s findings of fact.

PROOF OF POSSESSION

Defendant contends that plaintiff failed to prove the required possession of the narrow strip in dispute. He also contends that the plaintiff failed to prove that the property was “enclosed” as required by law.

Joe V. Winn, 83 years of age, testified that his father had acquired the 120 acres (now owned by Allbritton) in 1917. The property was used as a pasture for cattle grazing in those early days. A rail fence was located along the line that is in dispute in this suit. Winn stated that the rail fence was burned in 1917 by a forest fire. He stated that it was replaced immediately as the family had cattle in the pasture bordered by the rail fence and replacement was necessary to keep those cattle from roaming into other properties. The rail fence was replaced by a barbed wire fence which fence had been maintained in good condition until the disturbance in question took place. Winn stated that he had kept cattle in the 120 acre area up until he sold them in recent years. Winn also testified that he knew of his own knowledge that Allbritton had used the 120 acres as a pasture for the grazing of cattle. Allbritton began grazing his cattle on this acreage when he leased the property in 1974. Winn testified that Allbritton continued to graze cattle in the 120 acre pasture up until the fence was torn down.

Plaintiff testified that he was in the cattle raising business. He leased the 120 acres from William Winn for pasturage for cattle grazing. He continued to so use the acreage for this purpose up until the fence was removed along the line in dispute. He moved his cattle off the plot until he could build a new fence around the disputed area. He also stated that he had planted rye grass on some of the acreage and that it was necessary to build the new fence, after the disturbance, in order to enclose the pasture and to properly utilize the rye grass for his cattle.

The evidence establishes that plaintiff had possessed the property in question for several years prior to the institution of this action. The exercise of these grazing privileges over the 120 acres up to the old fence line, which includes the strip in question, along with the maintenance of the fence, constituted corporeal possession of the property in question. Broussard v. Motty, supra; Kilchrist v. Conrad, 191 So.2d 705 (La.App. 3rd Cir. 1966).

Defendant’s contention that plaintiff failed to prove that the property was enclosed is without merit. The evidence is clear that this acreage had been maintained as an enclosed pasture for grazing purposes for many years. The testimony of plaintiff and Winn repeatedly refer to the necessity of maintaining the fence in question to keep the cattle from roaming on other people’s property. Plaintiff also testified that the fence in question was connected to fences of other landowners.

We conclude that plaintiff possessed the property in question quietly and without interruption for more than a year prior to the disturbance created when defendant removed the fence and cut the timber on the property. The plaintiff instituted the action within one year of the disturbance. Therefore, we agree with the trial court’s conclusion that plaintiff has satisfied the requirements of the law and is entitled to be recognized as the possessor of the property in question.

For these reasons, the judgment of the trial court rendered in favor of the plaintiff and against the defendant is affirmed. The defendant-appellant is to pay all costs of this appeal.

AFFIRMED.

      . The judgment describes the property as follows:
      “Start at the corner common to Sections 6 and 7, Township 8 North, Range 9 West, Natchitoches Parish, Louisiana, and Sections 1 and 12, Township 8 North, Range 10 West, Sabine Parish, Louisiana, and proceed thence South along the range line a distance of 3,960 feet to a point and corner, and proceed thence East a distance of 2,640 feet to the POINT OF BEGINNING of the parcel herein being described, and proceed thence South a distance of 660 feet to a point and corner, and proceed thence West a distance of 44 feet to a point and corner, proceed thence generally Northerly along a straight line to a point and corner lying 74 feet West of the POINT OF BEGINNING, and proceed thence East a distance of 74 feet to the POINT OF BEGINNING.”


author: SAMUEL, Judge.

text:
    ASHLEY-HALL INTERIORS, LTD., INC. v. BANK OF NEW ORLEANS.
    No. 10791.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.

      Milling, Benson, Woodward, Hillyer, Pier-son & Miller, Charles A. Snyder and W. Richard House, Jr., New Orleans, for plaintiff-appellant.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, J. David Forsyth, New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against the Bank of New Orleans & Trust Company to recover $26,344.21, representing the total amount of checks allegedly forged or altered by plaintiff’s bookkeeper and paid by the defendant bank.

Defendant answered, denying liability, and affirmatively pled plaintiff is precluded from collecting any sums because its negligence substantially contributed to the making of the forgeries and alterations, and because plaintiff failed to exercise reasonable care and promptness in examining monthly statements of account and can-celled cheeks returned with it.

After a trial on the merits, judgment was rendered in favor of the defendant, dismissing plaintiff’s suit. Plaintiff has appealed.

The record shows plaintiff is a small corporation doing business in New Orleans, where it provides commercial and residential interior design, decoration and furniture. It has three to four employees. Joe L. Morrow, plaintiff’s vice president and general manager, dealt with clients and provided interior design services in their homes or offices. Consequently, he was not on the corporate premises for approximately 90% of the time.

Plaintiff had one bookkeeper, with the responsibility for writing checks on corporate accounts, paying bills, making deposits, recording accounts receivable and payable, and maintaining inventory controls. Prior to October, 1976 plaintiff had employed other bookkeepers who performed these functions with no incident. On October 11,1976 plaintiff hired one Natalie Morgan to replace its previous bookkeeper. Her references were checked, and the information gathered thereby indicated no problem in her job capability and honesty. During the term of her employment the corporation was unaware of any incident indicating the original information was incorrect.

Plaintiff had its corporate checking account at International City Bank, which went into liquidation in early December, 1976. Defendant then took over the checking accounts formerly maintained at International City Bank, including plaintiff’s, on December 5, 1976.

Beginning in January, 1977 through June 3, 1977, Mrs. Morgan apparently began to forge authorized signatures and raise amounts on plaintiff’s checks. During this period 56 separate checks were drawn in various amounts, with 51 payable to Mrs. Morgan, three to one Jerry Lee Morgan, one to Delta Air Lines, and one to a mail order house. Mrs. Morgan cashed the checks with various tellers at several of defendant’s branches. On five occasions she cashed two checks made payable to herself on the same day and on one occasion she cashed three checks made payable to herself on the same day.

Plaintiff argues that for defendant to prevail it must first prove it exercised due diligence in handling plaintiff’s account and only then can it show negligence attributable to plaintiff substantially contributed to the making of the unauthorized signatures. The trial judge did not assign reasons for judgment, but his judgment in favor of defendant impliedly indicates he held for the bank on both issues.

Defendant urges this court to hold plaintiff did not prove the checks in suit were forgeries or alterations and to maintain the trial court’s judgment under the manifest error doctrine. There is much in the record to justify such action on our part. However, the trial judge’s silence does not establish he concluded as a matter of fact that plaintiff failed to carry that burden of proof. Consequently, we choose to decide the case on its other issues.

The applicable law is set forth in R.S. 10:3-404 and 10:3-406, as follows:

■ “(1) Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it; but it operates as the signature of the unauthorized signer in favor of any person who in good faith pays the instrument or takes it for value.
(2) Any unauthorized signature may be ratified for all purposes of this Chapter. Such ratification does not of itself affect any rights of the person ratifying against the actual signer.” LSA-R.S. 10:3-404.
“Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.” LSA-R.S. 10:3-406.

Also relevant is R.S. 10:4-406, which provides in pertinent part as follows:

“(1) When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer, the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof.
(2) If the bank establishes that the customer failed with respect to an item to comply with the duties imposed on the customer by subsection (1) the customer is precluded from asserting against the bank
(a) his unauthorized signature or any alteration on the item if the bank also establishes that it suffered a loss by reason of such failure; and
(b) an unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank after the first item and statement was available to the customer for a reasonable period not exceeding fourteen calendar days and before the bank receives notification from the customer of any such unauthorized signature or alteration.
(3) The preclusion under subsection (2) does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item.” LSA-R.S. 10:4-406.

The circumstances of this case clearly show the plaintiff was guilty of negligence which substantially contributed to the forgeries and material alterations and that the defendant bank made payment on the checks in good faith in accordance with reasonable commercial standards.

The preclusion doctrine set forth in R.S. 10:4-406, quoted above, previously was used by this court to deny recovery against a bank for paying forged checks. In Victory Electric Works, Inc. v. Maryland Cas. Co., based on former R.S. 6:53, we stated that a bank’s liability for payment of forged checks ends at the time the bank’s action becomes knowable to the depositor upon return of the cancelled checks unless the depositor then notifies the bank. This doctrine was carried forth and expanded in R.S. 10:3-406, which now only requires that the depositor’s negligence substantially contributes to an unauthorized signature or material alteration; it need not be proved that the depositor’s negligence was the proximate cause.

Mr. Morrow had direct authority over the actions and procedures of Mrs. Morgan; no one else exercised any such authority. However, he exercised almost no supervision or review of her actions following a short time after she was hired. She had unrestricted access to the checks, to the mail, to the books and financial records of the company, and she handled almost all of the company’s banking transactions. Even though Mr. Morrow had charge of the corporation’s financial operation, he exercised almost no supervision over Mrs. Morgan’s activities.

In addition, Mr. Morrow signed checks which were not filled in, thereby affording Mrs. Morgan the opportunity to raise their amounts and to make herself payee. It was admitted that at least twenty-two of the checks sued upon were signed prior to being processed through plaintiff’s check printer. Further, Mr. Morrow failed to examine plaintiff’s monthly bank statements, which began to contain cancelled checks with forgeries and obvious alterations beginning December 31, 1976. In effect, Mr. Morrow admitted he would have detected many of the embezzlements had he reviewed the bank statements, a conclusion we believe is self-evident.

In addition, Mr. Morrow did not examine the company’s cash disbursement journal, in which were recorded all checks written on plaintiff’s account. The journal indicated there were no entries for many of the checks, and Mr. Morrow or any other corporate officer easily could have determined irregularities by examination of this one corporate record. Moreover, Mr. Morrow easily could have noticed discrepancies in the corporation’s bank balances had he examined the statements, and he also would have noticed that on at least one occasion Mrs. Morgan paid her own utility bill by a plaintiff check.

On at least one occasion Mr. Morrow inquired as to Mrs. Morgan’s purchasing power in spite of her salary of $267.31 every two weeks. Mrs. Morgan attempted to reassure him with the explanation that her husband had a substantial inheritance. However, Mr. Morrow either knew then or learned shortly thereafter that Mrs. Morgan and her husband were separated. In spite of this, he made no further inquiry, nor did he investigate the corporate records or books.

Plaintiff attempts to exculpate itself from negligence by showing it operated under the supervision of a firm of certified public accountants. This avails plaintiff little since a C.P.A. basically reviewed plaintiff’s financial transactions only once a year for the purpose of an audit and to prepare tax returns. Plaintiff also cites Couvillon v. Whitney Nat. Bank of New Orleans, as authority for the proposition that a depositor does not guarantee the integrity or honesty of an employee to the bank. This case affords plaintiff little relief since its facts show the offending employee forged only six checks over a three week period, while approximately fifty-five checks were involved in this case from November, 1976 to the beginning of June, 1977.

Our review of the evidence and the applicable law convinces us that plaintiff was guilty of negligence which substantially contributed to the forgeries and alterations of the checks in suit.

Numerous witnesses testified with regard to the defendant’s check verification procedures at both the teller and check processing levels. Customer signatures were verified at both levels on commercial accounts such as that used by plaintiff. The basic tenor of the testimony was that defendant teller procedures involved comparison of the check presented for payment with a microfilm reproduction of the signature card, except when the maker’s signature was known to the teller. At the bookkeeping or check processing level, the testimony indicates the bookkeeper made another comparison of the signature on each check processed with the original signature card.

Gary Saluzzo, a former employee of defendant, was called by plaintiff under cross-examination. He testified as stated above, and indicated the discretion afforded each teller depended upon the teller’s familiarity with the customer and the signature on the check. Defendant points out in connection with this testimony that Mrs. Morgan, handling basically all of the plaintiff’s banking transactions, was often seen at the bank and the tellers were familiar with her, so that little suspicion would have been aroused to provoke a teller to check a microfilm reproduction of the signature card. Ruth Mauer, an employee in the defendant’s bookkeeping department for approximately 22 years, testified she verified signatures for 20 years and had responsibility over plaintiff’s account. She stated signatures were checked daily, and that when any problem arose • with regard to signatures she would bring the checks to the attention of a supervisor. She also said, however, no suspicion ever arose regarding plaintiff’s checks and there was nothing unusual about several checks payable to the same payee appearing on the same date.

Carol Meunier, a teller at defendant’s Prytania Street branch, testified she received 6 or 7 of the checks involved in this law suit. She confirmed other testimony regarding defendant’s verification procedures and recalled nothing suspicious about plaintiff’s checks. She testified that under normal procedures she reported irregularities to a superior, and she also noted some of the checks were cashed at drive-in windows, where verification of signatures was done more thoroughly because of the absence of personal contact between the teller and the bank customer.

Joyce Wolfe, defendant’s bookkeeping assistant manager and Ms. Mauer’s supervisor, testified favorably as to Ms. Mauer’s job performance and ability. She also explained that defendant made special efforts to examine the check processing procedures of International City Bank (where plaintiff’s account originally was placed) to be sure they were consistent with those of defendant, and indicated ICB’s check matching procedures were similar to those of the defendant.

Defendant also called Cary McGovern, a bank consultant, who testified as an expert in teller and check processing operations. He inspected the defendant’s facilities, viewed the work of Ruth Mauer and observed BNO’s general procedures. He described the defendant’s teller procedures as “adequate” and “very reasonable” and stated defendant’s check processing procedures were “extremely adequate”. He further stated defendant was more particular than most banks in check verification and that its filing by signature afforded extra protection. According to his testimony, many banks do not check signatures as well as the defendant.

William Farrell, a handwriting expert, had to make comparisons from photocopies of the checks in suit because the originals apparently were destroyed by Mrs. Morgan. He testified Mr. Morrow’s signatures on the checks were either authentic or fairly good forgeries. He also examined various original examples of Morrow’s signature and pointed out it varies from day to day, thus making detection of forgeries more difficult. Mr. Farrell described Morrow’s signature as a “scrawl” type which is much more easily forged than a neat or precise signature style.

Defendant urges, and we conclude, that its policy and procedures regarding verification of customer signatures are in conformity with reasonable banking procedures and meet the “reasonable commercial standards” test of R.S. 10:3-406.

Plaintiff further contends that, even if we hold in favor of the defendant, it is nevertheless entitled to recover $10,795.58, represented by the checks forged by Mrs. Morgan during the month of May and the first three days of June. The authority for this assertion is Victory Electric Works, Inc. v. Maryland Cas. Co., discussed above. We concede that the manner in which Victory is summarized and digested in the West reporter indicates plaintiff’s argument has merit. However, a careful examination of the case reveals the trial court so held, but the defendant neither appealed nor answered the appeal of the plaintiff. Therefore, the question now being considered was not before the Victory court for decision. In addition, the statute under which Victory was decided, R.S. 6:53, has been repealed and the matter is now controlled by the above quoted R.S. 10:4-406.

Finally, we do not agree with the alternative plaintiff argument that the defendant is liable for forged or altered checks paid by the bank within fourteen days from the date of the first bank statement containing evidence of forgeries or alterations. The above quoted R.S. 10:4-406 (1) and (2) clearly state that a bank customer must exercise reasonable care and promptness to examine the statement and items for the purpose of discovering unauthorized signatures or alterations of an item and thereafter must promptly notify the bank of such discovery. In the absence of this examination, discovery and notice, the customer is precluded from asserting against the bank such unauthorized signatures or alterations. As we have said, the plaintiff did not comply with the duty imposed on it, the defendant did suffer a loss by reason of that failure and there was ordinary care on the part of the bank in paying the items.

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

AFFIRMED.

      . It was shown at trial that some of the checks in question were “raised,” i.e., the amounts for which they were initially made payable were increased by changing the amounts thereon.

      . Arceneaux v. Domingue, La., 365 So.2d 1330; Canter v. Koehring Company, La., 283 So.2d 716.

      . La.App., 230 So.2d 287.

      . There is also evidence to indicate Mrs. Morgan converted customer cash payments to her own use and took part in thefts of merchandise worth approximately $10,000 in conjunction with another former employee.

      . 218 La. 1096, 51 So.2d 798.

      . Supra, note 3.