text:
    Ronald Eugene CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 79-1720/T4-703.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.
    Richard L. Jorandby, Public Defender, and Polly M. Shull, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a conviction after a nolo contendere plea in a robbery case. Appellant pleaded nolo contendere and specifically reserved the right to appeal the denial of a motion to suppress certain evidence seized without a warrant. We do not decide this issue on appeal because, even if we were to reverse the order denying the suppression, the state has other evidence and eye witness testimony with which to try the appellant. Thus the issue is not dispositive of the case.

This type of appeal falls within the dictates of Brown v. State, 376 So.2d 382 (Fla. 1979), and State v. Ashby, 245 So.2d 225 (Fla.1971).

AFFIRMED.

DAUKSCH, C. J., and COBB and PRANK D. UPCHURCH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles Willie HILSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-90/T4-365.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.
    Richard L. Jorandby, Public Defender and Gary S. Israel, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a burglary conviction. Appellant challenges the conviction by urging the evidence was legally insufficient. We find the evidence to be legally sufficient but do note the appellant was sentenced to prison “at hard labor.” The judgment and sentence is hereby modified to delete the words “at hard labor.”

AFFIRMED as modified.

DAUKSCH, C. J., and ORFINGER and COBB, JJ., concur.


author: ORFINGER, Judge.

text:
    Mary Deborah Stinebaker ISAAC, Appellant, v. Don C. STINEBAKER, Sr., Appellee.
    No. 79-143.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.

      R. Wm. Lyng, III, Kissimmee, for appellant.
    Harold L. Downing and Jack B. Nichols of Nichols & Associates, P. A., Orlando, for appellees.
   ORFINGER, Judge.

This appeal questions the propriety of a non-final stay order in this cause pending the outcome of other proceedings to which appellant is a party and which could be determinative of the issues here.

An order staying proceedings is not an appealable order under Rule 9.130, Florida Rules of Appellate Procedure. However, because appeal from an eventual final order would not necessarily provide appellant with complete relief, we treat this appeal as a petition for writ of certiorari under Rule 9.040(c), Florida Rules of Appellate Procedure.

A review of the record fails to reveal that the trial court departed from the essential requirements of law in staying this cause, so the petition is

DENIED.

DAUKSCH, C. J., and SHARP, J., concur.


author: DAUKSCH, Chief Judge.

text:
    Iris Denise WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 79-497.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.
    James B. Gibson, Public Defender, and Terrence M. White, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a conviction of two charges: resisting an officer with violence to his person and battery on a law enforcement officer. The officer was called to a shoe store where appellant was creating a disturbance. When the policeman arrested appellant for breach of the peace, she jerked away from him. They both fell to the ground and in the ensuing melee, appellant bit, kicked and scratched the officer before she was finally subdued.

Appellant urges she should not be convicted of both crimes because one is factually included in the other and each is a facet or phase of the same criminal transaction. As authority for reversal, she cites Jane v. State, 362 So.2d 1005 (Fla. 4th DCA 1978), which held under the facts of that case that battery and false imprisonment were part of the same transaction and thus Jane could not be convicted of both. In that case, the appellant embraced the victim in a bear hug and would not let her go. Because of that, he was charged with battery for hugging her and false imprisonment for not letting her go. Here, appellant is charged with resisting an officer with violence to his person and battery upon the same law enforcement officer for jerking away from him, hitting, biting, kicking and scratching him. In order for the appellant to have committed the crime of “resisting with violence,” it was necessary for her to have committed a battery in this case. Thus, it was all a part of the same conduct. This is not to say in all cases a battery must occur before resisting with violence charge is warranted because the resisting statute proscribes not only the doing of violence but the offer to do violence. Sec. 843.01, Fla. Stat. (1979). However, in this case the proof is clear that appellant was not inclined to make any offers to do violence; she just attacked. As in Jane, it was not necessary for the crime of false imprisonment to include a battery, but it did, and that court reversed the battery conviction, because it was a lesser included offense under Brown v. State, 206 So.2d 377 (Fla. 1968), category 4. Here, neither crime is “lesser” because both are third degree felonies but since the battery was incidental to, and included in the resisting the officer charge, we affirm the resisting conviction and reverse the battery conviction. The converse would apply, of course, but some choice must be made.

The judgment of conviction of battery on a law enforcement officer is reversed and this case in remanded to the trial court for sentencing.

REVERSED AND REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: OTT, Judge.

text:
    Reginald James WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 79-867.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of attempted burglary in the course of which he committed an assault or was armed with a dangerous weapon, involuntary sexual battery, and resisting arrest with violence. He challenges his sentence of fifteen years for the attempted burglary and urges that the maximum sentence for this offense is five years. We agree.

An attempt to commit a burglary of any degree constitutes a third-degree felony punishable by a term of imprisonment not exceeding five years. §§ 777.04(4)(c), 810.-02(2) and 775.082(3)(d), Fla.Stat. (1979); McQuay v. State, 368 So.2d 908 (Fla. 1st DCA 1979).

Accordingly, appellant’s sentence for attempted burglary is reduced to five years. Appellant’s convictions and sentences are otherwise affirmed.

HOBSON, Acting C. J., and DANAHY, J., concur.


text:
    Durel RODRIGUEZ v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA.
    No. 67784.
    Supreme Court of Louisiana.
    June 24, 1980.
    Melvin Ripp, Jr., New Orleans, for plaintiff-applicant.
    William L. Brockman, New Orleans, for defendant-respondent.
   PER CURIAM.

Relator has applied for supervisory writs, complaining that the trial court erred in maintaining defendant’s exception of no cause of action.

Relator’s suit primarily seeks recovery of the value of his totally destroyed automobile from his own insurer. Relator additionally demands penalties and attorney’s fees based on the insurer’s arbitrary refusal to pay the amount demanded, as well as further “damages for breach of fiduciary obligation”. By exception of no cause of action defendant objected to relator’s demand for the latter item of damages. The trial court maintained the exception and ordered that item of damages struck from the petition. Relator’s application to the court of appeal for supervisory writs was denied on the basis that he has an adequate remedy by appeal.

We grant relator’s application. When a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La. 1975).

The purpose of the rule is to prevent multiple appeals. The trial court’s ruling in this case is a final judgment which creates the right of appeal as to only part of plaintiff’s cause of action and forces the intermediate court to consider the merits of that cause of action in a piecemeal fashion. The preferable procedure is for the trial court to overrule the exception and at the trial on the merits to exclude evidence of damages for breach of fiduciary obligation, it the court believes such damages are not recoverable. Relator can then include the evidence by means of a proffer, and in any subsequent appeal all issues can be presented at one time.

DECREE

Relator’s application for supervisory writs is granted, and it is ordered that the trial court vacate its judgment maintaining the exception of no cause of action and overrule the exception.

WRIT GRANTED WITH ORDER.

DENNIS, J., not participating.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. ENTERTAINMENT SPECIALISTS, INC., d/b/a Glenwood Theater.
    No. 66537.
    Supreme Court of Louisiana.
    July 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., for plaintiff-appellee, respondent.
    Gregorio & Frazier, John M. Frazier, Sam N. Gregorio, Shreveport, for defendant-appellant, relator.
   BLANCHE, Justice.

The defendant was charged by bill of information with obscenity in violation of La.R.S. 14:106. Upon conviction, the defendant was fined $100. Defendant perfected an appeal urging sixteen assignments of error.

Before reaching the merits, we note that the 1977 legislature amended R.S. 14:106 in two acts with divergent results. Act 97 established the penalty for obscenity as follows:

“G. (1) Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned in the parish prison for not more than one year, or both.
“(2) When a violation of Paragraph (1), (2), or (3) of Subsection A of this Section is with or in the presence of any unmarried person under the age of seventeen years, the offender shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than two years nor more than ten years, without benefit of parole, probation, or suspension of sentence.”

In contrast, Act 717 enacted the following penalty provision:

“G. Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than one year with or without hard labor, or both.
“When a violation of Paragraphs (1), (2), or (3) of Subsection A of this Section is with, or in the presence of, an unmarried person under the age of seventeen years, the offender shall be fined not more than two thousand dollars, or imprisoned for not more than five years with or without hard labor, or both.”

If Act No. 97 is controlling, the defendant has been convicted of a misdemeanor and before this Court on writ of certiorari. However, if Act 717 is controlling, then the defendant has been convicted of a felony and has a right to appeal. La.Const. art. V, § 5(D)(2).

In State v. Bosworth, 373 So.2d 152 (La. 1979), we addressed the issue of conflicting punishments for the same crime. In Bos-worth, we noted that it is a fundamental principle of statutory construction that penal provisions are interpreted strictly in favor of the defendant who must be afforded the benefit of any ambiguity. In applying this principle to an instance of conflicting punishments, we found the statute must be construed in order to afford the defendant the advantage of the lesser punishment.

Applying the principles of Bosworth to the instant case, we find that the penalty provision of Act No. 97 is controlling, and the defendant has been convicted of a misdemeanor. Pursuant to Rule 1, § 11 of Rules of the Supreme Court, we shall treat the defendant’s appeal as an application for writ of certiorari, and grant the writ.

Assignment of Error Number 21

By assignment of error number 21, the defendant contends that the trial court erred in denying its motion for a new trial based on the allegation that the state did not prove beyond a reasonable doubt that the defendant was, in fact, doing business as Glenwood Theatre, and was guilty of the conduct set forth in the bill of information. On appeal, this Court’s review is limited to questions of law by La.Const. art. 5, § 5(C). Therefore, if there is some evidence of an essential element of the crime, no question of law is presented, sufficiency of the evidence being a matter to be decided by the trier of fact. R.S. 14:106 provides in pertinent part as follows:

“(2) Participation or engagement in, or management, production, presentation, performance, promotion, exhibition, advertisement, sponsorship or display of, hard core sexual conduct when the trier, of fact determines that the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary, artistic, political, or scientific value.”

Further, we note that a determination of guilt of obscenity requires proof of scienter or knowledge. Smith v. California, 361 U.S. 147, 80 S.Ct. 399, 4 L.Ed.2d 383 (1959). The state is, therefore, required to show that the accused had knowledge of or had reason to know of the character and nature of the contents of the materials for exhibition of which he is responsible. State v. Wrestle, Inc., 360 So.2d 831 (La.1978).

In order to prove that the defendant was the person participating, engaging in, etc. the proscribed behavior, and to show the defendant’s guilty knowledge, the state introduced a lease which identified the defendant as the corporation which leased the premises at 3323 Line Avenue, Shreveport, Louisiana, the place where the films were shown. The lease, which was in effect at the time the films were shown, provides that the premises shall only be utilized as a theater and prohibits subletting the premises without the permission of the lessor. At best, this evidence is circumstantial evidence of the fact to be proven — that is, who knowingly exhibited the obscene films,

La.R.S. 15:438 establishes the rule as to circumstantial evidence as:

“. . assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

Thus, for the purpose of appellate review, the issue of whether there is a total lack of circumstantial evidence to prove the crime is decided by whether or not there is some evidence from which the jury could conclude that the only reasonable hypothesis is that the defendant had committed every element of the crime. See State v. Lindinger, 357 So.2d 500 (La.1978).

Applying these principles to the facts herein, we find that evidence introduced does not exclude every reasonable hypothesis of innocence. The facts that the evidence tends to prove are that the defendant corporation leased the premises in question for a period of three years and that under the lease, they were only allowed to use the place as a theater, and were not allowed to sublet the theater without the permission of the lessor. Yet, assuming these facts to be true, this does not eliminate every reasonable hypothesis of innocence. For instance, these facts do not eliminate the possibility that the defendant did, in fact, sublet the premises with or without the permission of the owner. Nor does it eliminate the possibility that the lease was dissolved or assigned. Most important, the proof that the defendant leased the premises does not eliminate the reasonable hypothesis that the defendant did not know the nature of the films being shown therein. There is no evidence that the defendant hired the personnel to operate the theater, or that it ordered the films or in any other fashion participated in the exposition of these films, except for the lease. The fact that the defendant may have leased the building does not prove that the defendant conducted the business therein or was aware of the nature of the business conducted therein. Since the introduction of the lease did not exclude every reasonable hypothesis of the defendant’s innocence, the state has failed to prove an essential element of the crime.

Having found that there is no evidence of an essential element of the crime, we must reverse.

The United States Supreme Court, in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), held that the double jeopardy clause of the Fifth Amendment precludes a second trial once a reviewing court has found no evidence of the crime charged, or an essential element thereof. In addition, the Court stated that the only just remedy for the reviewing court is the direction of a judgment of acquittal. Because we find no evidence in the record of the crime charged, we must enter a judgment of acquittal. State v. Peoples, 383 So.2d 1006 (La.1980); State v. Thompson, 366 So.2d 1291 (La.1978).

For the reasons assigned, the defendant’s conviction is reversed and a judgment of acquittal entered.

      . In the past, where a reviewable question has been raised, this Court has sustained a motion for new trial only when there is a total lack of evidence to prove the crime or an essential element thereof. Here, whether the traditional standard of review or the Jackson standard, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is employed, the result is the same.


author: WATKINS, Judge.

text:
    Lloyd A. RUSSELL v. J. Al AMISS, Sheriff of East Baton Rouge Parish et al.
    No. 13155.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Rehearing Denied May 5, 1980.

      Raymond L. Simmons, Baton Rouge, for plaintiff-appellant Lloyd A. Russell.
    William H. Cooper, Baton Rouge, for defendants-appellees J. A1 Amiss, Sheriff; Alexander D. Twine; R. L. McGraw; Charles W. Beard; Randolph Scott; and Roger N. Aucoin.
    Judy F. Pierce, Baton Rouge, for defendant-appellee State of Louisiana.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action for personal injuries sustained by Lloyd A. Russell, appellant, while a prisoner in East Baton Rouge Prison and for slander. Named defendants are J. A1 Amiss, Sheriff, Alexander D. Twine, R. L. McGraw, Charles W. Beard, Randolph Scott, Roger N. Aucoin, and the State of Louisiana. After plaintiff’s presentation of his case, the State of Louisiana moved to be dismissed as a party defendant, and the motion was granted. At the conclusion of the trial on the merits, the trial court gave oral reasons for judgment, dismissing plaintiff’s suit at his cost. Plaintiff has appealed from this judgment.

First we shall consider the personal injury cause of action.

About certain facts there is no controversy. On the night of March 13, 1977, there was an attempted jailbreak from plaintiff’s cellblock by no less than three inmates, and a deputy was stabbed. Plaintiff may or may not have been involved in the attempted jailbreak; the evidence is unclear. In any event, plaintiff and the other inmates in the cellblock were made to crawl on their hands and knees to the drunk tank, and were then ordered to take off their clothes — if defendants’ witnesses version of the events is correct, to permit the authorities to search for weapons. Plaintiff and one other inmate were then taken down the hall to an isolation cell. After midnight the same night, plaintiff was taken to Earl K. Long Memorial Hospital in Baton Rouge, where a gash on his head was sewed up and where bruises of the ribs, shoulders, and forearms were treated. He was then taken back to prison.

If the version of events recounted by plaintiff and plaintiff’s two witnesses to the events (Steven H. LeBlanc and Jonathan Poltrock) is correct, five inmates, including plaintiff, were called out of the drunk tank and beaten in the back of the head with numb chucks (billy clubs tied together) by Lieutenant Alexander D. Twine, defendant. After plaintiff and another inmate were taken to an isolation cell, Sergeant Charles W. Beard, defendant, and Warden Roger N. Aucoin, defendant, came in the cell and beat them to the floor and kicked them. The testimony also indicates that while the inmates were on their way on their hands and knees from the cellblock to the drunk tank they were kicked by the deputies. Le-Blanc and Poltrock were both inmates with plaintiff in Parish Prison, and were under incarceration at the time of the trial, Le-Blanc having been convicted of burglary and Poltrock of manslaughter.

Defendants’ testimony is that when the cell door of the drunk tank was opened to take the inmates out, plaintiff and another prisoner lunged out, plaintiff butting Captain Harvey in the teeth and face with his head or shoulders. They deny having numb chucks present in the prison, or beating Russell or the other inmates at any time. Certain testimony of defendants’ witnesses seems to indicate the prisoners were kicked while crawling on their hands and knees, but in the seat of the pants, and this would not have caused the injuries treated or sued upon.

The testimony on either side is generally consistent, and each side seems equally believable. There are only two obvious flaws in the testimony, which are not major. The first is that after defendants’ witnesses testified to the effect that Sergeant Beard did not come on duty until after the alleged beatings occurred, plaintiff changed his testimony to indicate that Captain Harvey and Aucoin, not Beard and Aucoin, followed him into the isolation cell and beat him. The second was that Captain Harvey, defendants’ witness, testified that Russell had no visible marks after he sustained the injuries sued upon. This is clearly contrary to fact in view of the medical report and other testimony, which indicate that plaintiff’s head needed to be sewed up. However, in general, the testimony on either side is equally worthy of belief.

Plaintiff contends that the trial court in its oral reasons for judgment improperly took judicial notice of its personal opinions or observations concerning conditions in East Baton Rouge Parish Prison and the worth of Warden Aucoin. We find that this allegation of error is well founded. See State v. Thurman, 231 So.2d 692 (La. App. 1st Cir. 1970). However, the oral reasons for judgment are clearly founded primarily upon the finding that plaintiff has failed to prove his case by a preponderance of the evidence. We agree that this is correct, finding both versions of the events on the night on which plaintiff’s injuries were sustained equally believable. In any event, there is no manifest error. See Haydel v. Clark, 347 So.2d 1200 (La.App. 1st Cir. 1977), writ denied 350 So.2d 1223 (La.1977); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

The second cause of action is for slander. Plaintiff contends that a local Baton Rouge newspaper stated that Russell was a participant in the escape attempt, and further contends that this information was supplied to the newspaper by the sheriff's office. A later newspaper published by the same company stated that Russell was not involved, but inmates other than Russell were involved, and also stated that the original information came from the sheriff’s office. The trial court refused to admit the newspaper articles, and plaintiff made a proffer.

The newspaper articles were properly identified by plaintiff, and were admissible to prove the fact that they were published. The first article, Russell Proffer 1, taken from the Morning Advocate of March 14, 1977, stated that inmates Lance Nowell, Lloyd Russell, and Kenneth Whatley attempted to escape from parish prison. It indicated that the identities of the men came from “authorities”. The second article, Russell Proffer 2, taken from the State-Times of March 14, 1977, stated that the inmates who attempted to escape were Lance T. Nowell, Dewayne Hall, and Kevin East. It further stated that the sheriff’s office earlier had identified two of the three men, mistakenly, as Lloyd Russell and Kenneth Whatley.

As we have said, the newspaper articles were admissible as proof of the fact that the articles were published. Pugh, Louisiana Evidence Law (1976 Supp.) pp. 199, 200. However, the statement in the State-Times article that the sheriff’s office was the source of the erroneous report is the rankest hearsay, and is entitled to no weight.

There is no other evidence in the record or proffer that would prove that the erroneous statement emanated from the sheriff’s office. For this reason alone, there is no proof of slander in this case, leaving aside the question of whether or not the other elements of slander were present.

For the reasons stated, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED..


author: COVINGTON, Judge.

text:
    Barry L. NETTLES v. Earl E. BOWLIN et al.
    No. 13122.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Rehearing Denied May 5, 1980.

      John Degravelles, Baton Rouge, of counsel, for plaintiff-appellant, Barry L. Nettles.
    W. Luther Wilson, Baton Rouge, of counsel, for defendants-appellees, Earl E. Bow-lin, Gordon E. Minor and Fred Eubanks.
    Cyrus S. Baldwin, Jr., Baton Rouge, of counsel, for defendant, intervenor & third party defendant-appellee, Gulf States Utilities.
    Arthur H. Andrews, Baton Rouge, of counsel, for defendant-appellee, Dr. Richard M. Hill.
    Claude F. Reynaud, Jr., Baton Rouge, of counsel, for defendant & third party plaintiff-appellee, South Central Bell Tel. Co.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is a devolutive appeal by plaintiff-appellant, Barry L. Nettles, from three separate judgments granting summary judgments in favor of defendants-appellees, South Central Bell Telephone Company, Gulf States Utilities Company (GSU), Earl E. Bowlin, Gordon D. Minor, and Fred Eu-banks, dismissing the plaintiff’s suit at his costs. We affirm in part, reverse in part and remand.

The incident giving rise to the present litigation occurred on August 15, 1977, when Barry L. Nettles, in the course and scope of his employment as an apprentice lineman for Gulf States Utilities, was severely injured when a utility pole, which he had climbed, broke, causing him and the pole to fall to the ground. The utility pole was subsequently found to be rotten at its base. As a result of the injury, Nettles underwent numerous surgical procedures, and ultimately had to have his left leg amputated, for which he is now receiving workmen’s compensation.

The utility pole in question was owned by Gulf States Utilities and was a “joint use” pole under a written “joint use” contract between the telephone company and the electric company, but was not in actual full use by the telephone company because it uses only underground cables in this area of the city. It had made limited use of the pole in order to connect phone service to the construction company shack at the construction site several months prior to the accident in question.

Gordon Minor was the line foreman in charge of the crew in which Nettles worked. They had done some work during the week immediately preceding the date of the accident. However, after working on Friday the 12th of August, Minor was away from the job on Monday and his place was taken by Earl Bowlin, a utility foreman. Fred Eubanks was the general line foreman over Bowlin and Minor.

The GSU crew with which Nettles was working was removing electrical lines from the subject pole to a new utility pole a short distance away in order to accommodate the construction of a driveway to a parking lot for a new shopping center.

The subject pole was one of a series of GSU’s poles supporting only that company’s electrical cables which ran parallel to the roadway. The aerial cables on the subject pole were to be moved to the new pole. All of the cables, save one, had been moved the previous week by the same crew (including Nettles) that was performing the work when the accident occurred. The subject pole had been climbed the previous week by linemen other than Nettles, who at that time was not qualified to climb a pole having energized cables attached. At the time Nettles did climb the pole (on the day of the accident) there was no energized cable on it. The pole was not tested before Nettles climbed it, the workmen apparently assuming that since the pole had been climbed by experienced linemen the week before, it was in a climbable condition. It proved not to be.

Bowlin, Minor and Eubanks were sued as executive employees or officers who caused or contributed to the accident through their individual or combined negligence. These individual defendants moved for summary judgment on the basis that LSA-R.S. 23:1032, as amended by Act 147 of 1976, prevents suits by an employee against co-employees or officers of the employer.

The telephone company was sued on two theories: First, that it was negligent in failing to properly inspect and maintain the subject pole; second, that it was strictly liable pursuant to LSA-C.C. art. 2317 in light of its “garde” of the pole. South Central Bell moved for summary judgment on the ground that, as a matter of law, it did not have “garde” of the pole and was not negligent in any manner since it had no duty to inspect or maintain the pole.

GSU was sued also on the theories of negligence and strict liability, and in addition, that it contractually waived its right to be sued only in workmen’s compensation. The employer moved for summary judgment based on LSA-R.S. 23:1032, which makes workmen’s compensation the exclusive remedy of an employee against his employer for injuries sustained in the course and scope of his employment.

In three separate judgments the District Court granted the motions for summary judgment, and Nettles has devolutively appealed all judgments.

We reverse the judgments in favor of Gulf States Utilities and in favor of South Central Bell, because those demands aré not in a proper posture for summary disposition. There are genuine issues of material facts yet to be resolved. See LSA-C.C.P. arts. 966, 967. The established law is to the effect that a summary judgment may be granted only when there is no genuine issue of a material fact and the mover is entitled to judgment as a matter of law. It can not be used as a substitute for trial. The burden of proof is on the mover and any doubt must be resolved in favor of the opposing party. Lang v. Dairyland Insurance Company, 368 So.2d 203 (La.App. 1 Cir. 1979); Batson Lumber Co., Inc. v. Yates, 319 So.2d 853 (La.App. 1 Cir. 1975).

The allegations of negligence, together with the evidence from depositions in the record, raise a factual question of South Central Bell’s negligence vel non which is more properly addressed to the trier of fact on the merits rather than by way of summary action. There is also a genuine issue of material fact concerning the question of the telephone company’s “garde” of the subject pole which broke and fell, injuring the plaintiff. Further, a question exists as to the company’s duty if it had knowledge of the condition of the pole. There is no evidence in the record concerning how the parties to the “joint use” contract interpreted or executed said contract. We think the plaintiff should be allowed an opportunity to prove South Central Bell’s liability, if any.

There is also a genuine issue of material fact concerning whether or not GSU voluntarily agreed by contract to pay employees, such as Nettles, damages in addition to workmen’s compensation benefits, thereby waiving the exclusivity of the workmen’s compensation law. Without, at this time, interpreting the “joint use” agreement, a reading of such contract raises certain questions concerning the intent of the parties as to their respective liabilities in case one party’s employees are injured through the negligence of the other party. Such intent should properly be addressed to the merits. Seldom is summary judgment appropriate where there is a question of what was intended by certain language in a contract. Hall v. Management Recruiters of New Orleans, Inc., 332 So.2d 509 (La.App. 4 Cir. 1976). This is not an appropriate case for summary judgment in favor of the employer.

We affirm the judgment in favor of the three individual defendants, Bowlin, Minor and Eubanks. There is no dispute that these men were executive officers or supervisory employees of the employer who were charged in the petition with conduct generally within the course and scope of their employment. Suits against such individuals are the very actions which LSA-R.S. 23:1032, as amended by Act 147 of 1976, was designed to eliminate. Appellant’s arguments attacking the constitutionality of the statutory provisions have already been decided adversely to the appellant. Flynn v. Devore, 373 So.2d 580 (La.App. 3 Cir. 1979); Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1 Cir. 1979); Perez v. Continental Casualty Company, 367 So.2d 1284 (La.App. 3 Cir. 1979), writ denied, 369 So.2d 157 (1979); Guidry v. Aetna Casualty and Surety Company, 359 So.2d 637 (La.App. 1 Cir. 1978). We accept the rationale of the cited decisions and find the statute to be constitutional. We find no merit in appellant’s contention that by merely alleging “intentional injury,” he has avoided the mandatory effect of the statutory provision. See Johnson v. Narcisse, 373 So.2d 207 (La.App. 4 Cir. 1979); Guidry v. Aetna Casualty and Surety Company, supra. The record reflects that this was not an “intentional tort.” There is nothing to indicate that any defendant entertained a desire to bring about the result obtained, or could possibly have believed that the result was substantially certain to follow from anything they did or did not do. No serious argument can be made that anyone connected with this work or accident had any active desire that the accident with resulting injuries should happen. See Tobin v. Jacobson, supra.

For the foregoing reasons, the judgments in favor of Gulf States Utilities and South Central Bell are reversed, and the case is remanded for further proceedings in accordance with law; the judgment in favor of the three individual defendants, Bowlin, Minor and Eubanks, granting their motion for summary judgment and dismissing Nettles’ claim against them is affirmed. Costs of this appeal are assessed equally against appellees, Gulf States Utilities and South Central Bell; all other costs are to await final disposition.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


author: LOTTINGER, Judge.

text:
    Malcolm Y. BRIAN et al. v. Robert E. BOWLUS et al.
    No. 13137.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Rehearing Denied May 5, 1980.
    Robert L. Kleinpeter, Baton Rouge, for plaintiffs-appellees, Malcolm Y. Brian and Helena S. Brian.
    J. Glenn Dupree, Baton Rouge, for defendants-appellants, Robert E. Bowlus and Ann M. Bowlus.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit by Malcolm Y. Brian, his wife Helena, and David Brian for a declaratory judgment against Robert E. Bowlus, The Ann M. Bowlus Trust and The Robert E. Bowlus Trust seeking the approval and recognition of the revocation of an old ser-, vitude and the relocation thereof. From a judgment in favor of plaintiffs, all defendants have appealed.

This suit was tried based on stipulated evidence.

On December 22, 1966, plaintiffs, Malcolm and Helena Brian, sold to Robert E. Bowlus a certain parcel of land with a “servitude of way and passage” providing access across plaintiffs’ property to Perkins Road. The property purchased by Bowlus was enclosed. The parcel sold, as well as the servitude, were described with particularity in the act of sale. No specific consideration was mentioned for the servitude.

Subsequently, on May 2, 1973, Bowlus transferred both the parcel and the servitude to the Ann M. Bowlus Trust and the William M. Bowlus Trust. On July 18, 1978, plaintiffs sold to David Brian a certain tract of land which included a portion of the existing servitude. Prior to the sale to David, plaintiffs attempted to negotiate a revocation and relocation of the servitude with the defendants, but to no avail. The plaintiffs unilaterally on May 3, 1978, executed a “revocation and relocation of servitude,” and forwarded same to the defendants. David Brian prior to this suit built a personal residence on the original servitude.

In rendering judgment in favor of plaintiffs, the trial judge reasoned that the servitude was a predial one rather than a conventional servitude, and that under Louisiana Civil Code Article 695 the owner may relocate the servitude to a “more convenient place.” The trial judge in mentioning a predial servitude was obviously referring to a legal servitude vis-a-vis conventional servitude, inasmuch as “predial servitudes may be natural, legal, and voluntary or conventional.” La.C.C. art. 654.

Defendants-appellants contend the servitude was conventional vis-a-vis legal, and that plaintiffs were not entitled to relocate the servitude unilaterally.

We are of the opinion that the servitude in question is a legal servitude. A review of the act of sale fixing the servitude reveals the description of the property sold as well as reference to a map. The property description does not mention that the tract sold borders on a public road. In fact it points out that the property is some distance from a public road. In language printed below the property description, the act of sale “establishes for the use and benefit of the hereinabove described property acquired by vendee a servitude of way and passage * * It is apparent from the description of the servitude in the act of sale that the servitude connects the tract sold to Perkins Road.

A copy of the map attached to the act of sale is in the record, and it; too, shows that the tract sold was an enclosed estate.

The mere inclusion of the description of a servitude of passage and way in an act of sale does not create a conventional servitude. The attending facts and circumstances must be considered in determining what type of servitude exists. The trial judge apparently concluded that since the tract being sold was an enclosed estate, the description of the servitude was merely the particularization of the legal servitude the vendor was obligated to furnish the vendee under La.C.C. art. 694. For a similar case also holding that the inclusion of the description of a servitude in an act of partition does not create a conventional servitude, see Picard v. Shaubhut, 324 So.2d 517 (La.App. 1st Cir. 1975), writ refused 326 So.2d 380 (La.1976). We agree with the conclusion reached by the trial judge.

Defendants-appellants also argue that to allow the above result will create havoc and confusion in the public records for abstrac-tors and title examiners. We think not. As in the above case, the facts found in the act of sale and the attached map are enough to place any competent title examiner on notice of the possibility that a legal servitude is owed.

Lastly, defendants-appellants complain about the unilateral action of plaintiffs. Undoubtedly, the better practice to follow in relocating a legal servitude where agreement between the parties cannot be reached is through the courts rather than unilaterally. The risk taken is that the courts will ultimately not approve the new location.

However, the fact that a land owner re-establishes a legal servitude without court guidance does not, of itself, void the unilateral action. Under La.C.C. art. 695, the owner of the servient estate has the right to relocate the servitude at his own expense as long as the relocation “affords the same facility to the owner of the enclosed estate.” Here, we agree with the trial court that the new location “affords the same facility” to the defendant.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . There is no “The Robert E. Bowlus Trust.” The proper party defendant is “The William M. Bowlus Trust.”


text:
    OAKSHIRE REALTY COMPANY, INC. v. BOWMAN BUSINESS COLLEGE, INC.
    No. 13140.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Rehearing Denied May 5, 1980.
    Charley J. Schrader, Jr., Houma, for plaintiff and appellant, Claude P. Bou-dreaux.
    Elton A. Darsey, Houma, for Charlton P. Rozands, Sheriff of Terrebonne Parish.
    Danny J. Lirette, Houma, for Progressive Bank & Trust Co.

      Warren J. Daigle, Jr., Houma, for Industrial Finance and Thrift Corp.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a rule filed by the sheriff of Terrebonne Parish against the custodian of property under a writ of fieri facias to show cause why certain property which was in the care of the custodian but which was subsequently released by the custodian pri- or to judicial sale should not be returned to the sheriff or, alternatively, why the custodian should not be held in contempt of court for allowing the property to escape from his custody.

The trial court held that the custodian, Claude P. Boudreaux, must either return the property or be held in contempt of court. Mr. Boudreaux appeals from the trial court’s decision, questioning whether summary process was the correct form of proceeding in this matter and further questioning whether he can be held in contempt of court for allowing property under seizure to escape from his custody prior to judicial sale.

The background posture of this case is important to show the context in which the rule was filed. Oakshire Realty Company instituted an action against Bowman Business College for rents due under a lease agreement between the two parties. Subsequently, a writ of sequestration was issued in the case and all the movable property on Bowman’s premises was seized and inventoried by the Terrebonne Parish sheriff’s office. Mr. Boudreaux was appointed custodian of the property under the writ of sequestration.

Afterwards, a default judgment was entered and confirmed against Bowman in the sum of $31,100.00, representing the rents due and owing under the lease contract. A writ of fifa was later issued, the property was reinventoried and Mr. Boudreaux was again appointed custodian.

Mr. Boudreaux claims that after the writ of sequestration was issued but before the writ of fifa was issued, he allowed the company which owned a computer leased to Bowman Business College to remove the computer from the Bowman premises. The computer was one of the items listed on the inventories for the sequestration and the fifa. The deputy who took the inventory claims that the computer was on the Bowman premises when the inventory was taken for both writs.

Mr. Boudreaux was appointed appraiser of the property, along with another person appointed on behalf of the defendant, and the property was appraised for $10,00.00. After advertisement according to law, Statewide Trailer Sales, Inc. purchased the property for $9,500.00, more than two-thirds of its appraised value. Employees of Statewide Trailer Sales, Inc. attempted to obtain the property the night of the sale, but found that only some of the property on the inventory was present on the Bowman premises. The major item missing was the computer which Mr. Boudreaux claims he had previously released to the company which owned the equipment.

The sheriff then filed this rule against Mr. Boudreaux as custodian to show cause why Mr. Boudreaux should not either produce the property or be held in contempt of court. As stated previously, the trial judge ruled in favor of the sheriff and ordered Mr. Boudreaux to produce the property or to show cause in ten days why he should not be held in contempt. This appeal was timely taken.

We are willing to concede for the purposes of this appeal that the sheriff has a cause of action against the custodian for return of the property in question. We also agree with the plaintiff-in-rule that summary process is the correct way to proceed in a move to hold defendant-in-rule guilty of contempt. La.C.C.P. art. 225. However, we disagree with the trial court’s holding that Mr. Boudreaux can be held in contempt of court in this case. The testimony at the trial on rule shows there is no way for Mr. Boudreaux to retrieve the property he allowed to escape from his custody. The property has since been re-leased to another company by the owner of the computer. Mr. Boudreaux has no way of obtaining the property at this time. Requiring him to obtain the property or otherwise be held in contempt of court would be requiring him to do a vain and useless thing, which this court will not allow. Whether and to what extent Mr. Boudreaux should be held liable for damages is an issue that will have to be determined in other proceedings.

Therefore, for the above and foregoing reasons, the decision of the trial court is reversed. Plaintiff-in-rule will pay the costs of this appeal.

REVERSED.

      . Mr. Boudreaux, an attorney, is President of Oakshire Realty Company and represented Oakshire in the seizure.


author: ELLIS, Judge:

text:
    Raymond K. CAILLOUETTE et al v. CHEROKEE BEACH & CAMPGROUNDS, INC., et al.
    No. 13095.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Rehearing Denied May 5, 1980.
    Kerry P. Camarata, Metairie, for plaintiffs.
    Kenneth E. Barnette, Baton Rouge, for defendants, Cherokee Beach & Campgrounds, Inc., Lynn Ezzel, and Henry Walz.
    John J. Hainkel, Jr., New Orleans, for defendant, Dr. Woodrow Simmons.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is an appeal by Raymond Caillouette and Marie Meyer Caillouette from a summary judgment dismissing their suit. The suit was originally filed by Mr. & Mrs. Caillouette and their son, Raymond Cail-louette, Jr., with Mr. and Mrs. Caillouette seeking damages for the wrongful death of their son, Elphage Caillouette, and Rayond Caillouette, Jr. seeking damages for personal injuries.

Defendants are Cherokee Beach and Campgrounds, Inc., Henry Walz, Lynn Ez-zel and Dr. Woodrow Simmons. The suit was dismissed as to Dr. Simmons by summary judgment which has become final, and he is no longer before the court. The motion for summary judgment now before the court was filed by Cherokee, Walz and Ezzel, and after argument, was sustained as to all plaintiffs, and the suit dismissed. From the judgment of dismissal, only Mr. and Mrs. Caillouette have appealed.

The petition alleges that Elphage Cail-louette and Raymond Caillouette, Jr. were “tubing” in the Tangipahoa River; that they had entered the river at the property of Cherokee; that they had paid Cherokee for the rental of inner tubes and for a ride back to Cherokee’s property from the terminus of the tubing expedition; and that El-phage was killed and Raymond was injured as a result of diving into the river from a bluff on Dr. Simmons’ property. Article 10 of the petition states:

“All defendants knew that large numbers of people used this area as a beach and more particularly that many people also dove from the shore into the water at that spot. Furthermore, none of the defendants gave any warning to those engaged in tubing down the Tangipahoa River nor did they post ‘no diving’ sign at the place Elphage Caillouette met his death although all defendants knew or should have known of the dangerous condition which existed at that spot.”

All of the foregoing allegations of the petition were denied by defendants. The only evidence offered in support of the motion for summary judgment are the depositions of Raymond Caillouette, Jr. and Dr. Simmons. Neither of these depositions contain testimony which would either refute or support the allegations of Article 10 of the petition, above quoted, which is the sole allegation of negligent behavior of defendants. In a motion for summary judgment, it must appear that there is no issue as to material facts, and that the mover is entitled to judgment as a matter of law. Articles 966, 967, Code of Civil Procedure. In this case, no facts are made to appear, and we cannot assume the truth of the allegations of the petition when they have been denied by defendants. We find there is nothing before us on which a summary judgment might properly be based.

We note, however, that defendants filed an exception of no cause of action to the petition, which, in our opinion should have been sustained by the trial court. We do not believe that defendants are required by law to warn persons of the obvious dangers attendant to diving into an unknown body of water, or that they can be held liable for the injuries suffered by one who trespasses on the property of a third person in order to do so.

The judgment appealed from is therefore reversed and set aside as to appellants, and the exception of no cause of action filed by defendants is sustained. In accordance with Article 934 of the Code of Civil Procedure, the case is remanded to the trial court, and plaintiffs Raymond and Marie Mayer Caillouette are granted 15 days from the date this judgment becomes final to amend their petition so as to state a cause of action, in default of which, the suit will be dismissed. Costs of this appeal shall be equally shared by the parties hereto. All other costs shall await final determination of this suit on its merits.

REVERSED AND REMANDED.


author: CHIASSON, Judge.

text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY v. HOSPITAL INVESTORS, INC.
    No. 13121.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Rehearing Denied May 5, 1980.

      Davis A. Gueymard, Baton Rouge, for plaintiff-appellant, Republic Nat. Life Ins. Co.
    John H. Fetzer, III, Baton Rouge, for defendant-appellee, Hospital Investors, Inc.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellant, Republic National Life Insurance Company, seeks review of the trial judge’s action revoking an order of executo-ry process and enjoining the sale of property on which mortgage foreclosure proceedings had been instituted. We reverse.

Appellee, Hospital Investors, Inc., sought and obtained a preliminary injunction enjoining the sale on the basis of an alleged discrepancy relative to the due date of the first installment payment. The sale and assignment with mortgage and the mortgage note, both of which are dated March 16, 1978, contained December 1, 1978 as the due date for the first installment payment. A corporate resolution of Republic National Life dated December 14, 1977, which was made a part of the sale with mortgage, authorized the sale and provided for a twelve month moratorium on the mortgage payments.

A resolution of Hospital Investors, Inc., dated December 12, 1977, authorized the purchase and the execution of the mortgage and the mortgage note.

Upon the execution of the necessary papers, some three months later, the parties therein agreed that December 1,1978 would be the date for the payment of the first installment and no discrepancy exists between the note and the mortgage containing a confession of judgment.

The resolution of Republic National Life was necessary for the execution of the sale, but is not necessary for use of executory process. C.C.P. art. 2635. The resolution of the seller adopted in December, 1977, showed an intent of the seller to allow the first payment to become due in December, 1978. We are convinced that the note and mortgage finally executed in March, 1978, was in accord with the intent of that resolution. Under these facts the provisions of the resolution cannot be used to vary the content of the note and mortgage.

For these reasons the judgment of the trial court is reversed and the preliminary injunction is recalled and vacated. The case is remanded to the trial court for further proceedings.

Appellee is to bear all cost of this appeal.

REVERSED, RENDERED AND REMANDED.


author: PONDER, Judge.

text:
    Junior Victor MELANCON v. UNITED ASSOCIATION OF JOURNEYMEN, etc., et al. Dale BRIGNAC v. UNITED ASSOCIATION OF JOURNEYMEN, etc., et al.
    Nos. 13117, 13118.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Rehearing Denied May 5, 1980.
    James M. Boone, Donna W. Lee, Baton Rouge, for plaintiffs-appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

These consolidated suits are for damages for personal injuries to plaintiffs and for property damages to the Brignac’s car. The trial court dismissed the suits and plaintiffs appealed.

The issue is the sufficiency of proof of “mass action” of the union members.

We affirm.

Members of different unions, all of whom were affiliated with the AFL-CIO, picketed a plant because members of their unions were not being hired by Payne & Keller, contractor for the construction of a pipeline for Toro Petroleum Corporation. A restraining order was issued enjoining defendants from congregating near the plant and allowing a maximum of six pickets on the public property near the site.

While defendants apparently complied with the restraining order, several hundred of their members congregated near the site but away from the pickets. On March 28, 1972, members of Local 102 approached the site in four vehicles. The exact events are unclear from the testimony, but a fight ensued, resulting in the injuries to plaintiffs and in damage to the car.

The Norris-LaGuardia Act (29 U.S.C.A. § 106) states:

“No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court in the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.”

The “clear proof” required by the Act is not present. Neither of the plaintiffs was able to identify who caused the personal injuries and who damaged the car. There is no proof that the defendants are connected with the alleged wrong. There is no proof that the attackers were union members, much less members acting with any authority or approval from the unions.

Plaintiffs maintain that defendant should be held liable notwithstanding the act, because of Harlem River Consumers Coop., Inc. v. Assoc. Grocers, 450 F.2d 271 (2nd Cir. 1971). The court held that injunctive relief will be granted against a union if it delegates unrestricted authority to an officer or agent going beyond the norms of union conduct or if it can be proved that the union kept the officer or agent after knowledge of illegal activity.

Plaintiffs claim that a meeting was called by the Building and Trades Council at which business agents voted to picket the Toro plant. Plaintiffs feel this action delegated authority which went beyond the norms of union conduct. However, plaintiffs admit there is no record of the meeting or the amount of authority delegated. Therefore, there is no proof, not even circumstantial in nature, showing the union delegated “unrestricted authority.”

Plaintiffs then contend that the union is responsible for the mass action of its members. U. S. v. International Union, U.M.W. of A., 77 F.Supp. 563 (D.D.C., 1948); Turnkey Constructors Inc. v. Cement Masons Local Union, 580 F.2d 798 (5th Cir. 1978); Wagner Electric Corp. v. Local 1104 International Union of Electrical Radio & Machine Workers, 361 F.Supp. 647 (E.D.Mo. E.D., 1973).

These cases hold that the concerted action of a multitude of union members can be sufficient proof of the “participation in or actual authorization” of the illegal acts of the members.

In this case there is no evidence showing mass actions of the union members. In fact, all the proof is to the contrary. Even plaintiff’s witnesses had difficulty identifying any members, agents or officers from defendant unions at the site. There was no proof of circumstances which would lead to the conclusion that the unions approved of the actions of their members or that their leaders had incited the action. Therefore we are unable to hold the unions responsible for the mass actions of their members.

For these reasons the judgments of the trial court are affirmed at appellants’ costs.

AFFIRMED.


author: LEAR, Judge.

text:
    GUARANTY SAVINGS ASSURANCE COMPANY v. Peter A. UDDO.
    No. 13051.
    Court of Appeal of Louisiana, First Circuit.
    March 6, 1980.
    Rehearing Denied May 5, 1980.

      Floyd A. Falcon, Jr., Baton Rouge, for plaintiff-appellant Guaranty Sav. Assur. Co.
    Nick F. Noriea, Jr., New Orleans, for defendant-appellant Peter A. Uddo.
    Before EDWARDS, LEAR and GREENE, JJ.
   LEAR, Judge.

Guaranty Savings Assurance Company (GSA) and Peter A. Uddo (Uddo) are both aggrieved by the decision of the lower court dismissing their respective demands and, therefore, have prosecuted these appeals. GSA appeals from the dismissal of its principal demand wherein Uddo is the named defendant. Uddo appeals from the dismissal of his reconventional demand filed against GSA and two of its officers and agents, F. D. V. De La Barre (De La Barre) and Pierre D. Kirk (Kirk).

The pertinent facts are these: GSA is a domestic corporation authorized to do and doing business in Louisiana. In the instant cause, GSA was approached by Uddo, a New Orleans restaurant owner, who desired to lease certain property owned by GSA in Baton Rouge, Louisiana. The property in question is located on Stanford Avenue near the Baton Rouge campus of Louisiana State University. Uddo was particularly impressed with the location of the property, because it fronted a body of water known as University Lake and because this was consistent with the name and scheme of his New Orleans operation, Riverbend Restaurant.

In January of 1977, Uddo had several meetings with GSA’s officers-agents, De La Barre and Kirk. De La Barre is the secretary-treasurer and a director of GSA, and Kirk is its president. Uddo is a member of a New Orleans family prominent in the restaurant business. He actively managed the restaurant himself. De La Barre, though an officer of GSA, was also a practicing attorney for some twenty-six years and, also, represented GSA in that capacity.

Testimony at the trial established that Uddo desired to lease the lakeside property for the purpose of establishing a restaurant and lounge. He was informed by De La Barre that the property had only recently (December 31, 1976) been leased to the San Francisco Bay Company (San Francisco). Therefore, he was advised by GSA to contact San Francisco. The San Francisco lease, however, was only for five years, while Uddo desired one for at least nine years, coupled with an option. Uddo, with GSA’s approval and assistance, negotiated a cancellation of the San Francisco lease for a consideration of Fifteen Thousand Five Hundred and No/100 ($15,500.00) Dollars.

Throughout the discussions and negotiations involving Uddo and De La Barre — one session lasting more than seven hours— Uddo continued to emphasize that he intended to distinguish the construction and operations of the Baton Rouge and New Orleans restaurants in one critical particular: the Baton Rouge operation would be highlighted by a lounge as “. . . part of and separate from the restaurant”.

However, unknown to Uddo was the prior history of the Stanford Avenue property. GSA’s ownership and use of the subject property was permeated with protracted neighborhood opposition to any use which would permit the serving of alcoholic beverages on the premises. In fact, as established in the record, GSA had cancelled a prior lease with one Tortorich who had applied for a liquor permit to operate an “amusement center and lounge and retail outlet”. The lease was cancelled and a refund made by GSA because the licensing authorities had denied the same and were upheld by the City-Parish Council.

After the Tortorich incident, GSA officials met with certain of the neighborhood leaders, including Mrs. Ann Hise, whose opposition to lounges in the affected area was well known. These officials of GSA, including De La Barre, assured the opposition that GSA would not act contrary to the sentiments expressed.

Subsequent to 1974, Southside Civic Association, Incorporated (Southside) instituted a suit in the Nineteenth Judicial District Court against GSA and certain of its officials and against certain city officials. Southside sought a declaratory judgment as to the status of the Stanford Avenue property. The matter was ultimately adjudicated by the Louisiana Supreme Court at 339 So.2d 323 (1976). On remand, a consent judgment was entered which held in part, “, . that there was an existing nonconforming commercial use of the building at 922 Stanford Avenue but this non-conforming C-l use was discontinued on August 31, 1976 and if such non-conforming C-l use is not reestablished on or before August 31, 1977 the building use must conform with A-4 zoning”. (Plaintiff Exhibit 9) This judgment was signed and filed on December 28, 1978, less than three (3) weeks prior to the Uddo-De La Barre negotiations.

In the face of these facts, GSA admits that at no time did it disclose to Uddo the substantial opposition that he would likely —indeed, certainly — incur in attempting to obtain a liquor permit for a “restaurant and lounge” at the Stanford Avenue property. Nor did GSA’s agents, De La Barre and Kirk, disclose to Uddo that the said property was not zoned for a lounge which required a C-2 classification. Uddo, therefore, proceeded to enter into the contract of lease and to expend in excess of Thirty-five Thousand and No/100 ($35,000.00) Dollars in preparation for and in anticipation of a productive business.

Finally, when Uddo applied for the liquor permit, he was confronted with solid opposition from city and civic officials, including Councilman Carl Crane and Mrs. Hise. It was also at that time that he was informed that under no set of circumstances would he likely obtain a rezoning of the properly to C-2.

After several unsuccessful attempts to secure the cooperation of Mrs. Hise, the Southside Civic Association, Councilman Crane and other city officials in his efforts to obtain a liquor permit, Uddo concluded that the obstacles were insurmountable. He then notified GSA that he could not complete the venture and that the lease was void because of his inability to obtain a permit. GSA disagreed and, subsequently, sued for breach of contract and payment of the rent. Uddo reconvened alleging that the contract was void from its inception because of error occasioned by the failure of GSA and its agents to disclose the true status of the property and because of-Uddo’s mistaken belief that he could obtain a permit to operate a lounge in an area zoned C-l non-conforming.

The trial court held that GSA had properly disclosed the true status of the property and that the contract of lease was valid. However, the court further held that the contract contained a resolutory condition which was triggered and which permitted Uddo to rescind from the contract. The court concluded that the legal obstacle which made it impossible to obtain a permit was such a resolutory condition contained in the contract.

The controversy hinges, therefore, on whether the contract of lease should be rescinded because- of error.

We do believe that the evidence is substantial that the principal cause or motive for contracting was to establish a lounge as a part of and separate from the restaurant.

The record reflects that the Baton Rouge Riverbend was to be distinguished from the New Orleans structure in one critical particular: it was to combine a restaurant and lounge. The New Orleans establishment had no more than six thousand (6,000) square feet, of which three thousand five hundred (3,500) square feet were used for the restaurant and the remaining space for kitchen, storage and administrative office space. On the contrary, the Baton Rouge establishment had more than eight thousand five hundred (8,500) square feet, three thousand five hundred (3,500) being allocated for restaurant and three thousand five hundred (3, 500) being allocated for a lounge. The record is replete with evidence to support Uddo’s contention that the construction of a lounge was a principal cause for the contract. GSA was well aware of Uddo’s intention and that the zoning was inconsistent with Uddo’s plan.

Articles 1820 et seq., of the Civil Code provide:

“1820. Error, as applied to contracts is of two kinds: 1. Error of fact, 2. Error of law; [.]
“1821. That is called error of fact, which proceeds from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.
“1825. The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several, this principal cause is called motive, and means that consideration without which the contract would not have been made.
“1826. No error in motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement or unless from the nature of the transaction it must be presumed that he knew it.
“1846. Error in law, as well as error in fact, invalidates a contract, where such error is its only or principal cause . . .”

Boehmer Sales Agency v. Russo, 99 So.2d 475 (La.App.1958) and Marcello v. Bussiere, 284 So.2d 892 (La.1973) are fully dispositive of this case.

In Boehmer, the plaintiffs alleged that when they entered into an option agreement they labored under an error of fact concerning the principal cause of the contract believing that the zoning status of the property was such that it could be used for the purpose for which they desired it. Further, they alleged that defendant was aware of the true fact but failed to disclose the same. The court held that the vendor (lessor) must disclose the exact status of the property; that the vendee (lessee) need only prove that he labored under an error of fact concerning the principal cause for the making of the contract when it was evident that he (lessee) would not have been interested at all had he known that the property could not be used for the purpose intended.

In Marcello v. Bussiere, another cause factually on point, the buyer-sublessee, Bus-siere, filed a reconventional demand for return of the purchase price, rescission of contracts, and money spent in renovation. Bussiere and his wife desired to open a business in Louisiana. They were advised of the availability of certain property which housed a lounge. The Bussieres were acting under the belief that the lounge had been a successful operation and that the alcoholic beverage license was still in effect. However, after entering a verbal agreement to lease and commencing renovations, they learned that the license had, indeed, been revoked by the governing authority and that no permit could be procured. Our Supreme Court, speaking through Justice Sanders in Marcello, held:

“Since the purchasers received no going business and could not secure a license to operate, we conclude that there was an error in the principal cause of the contract. It makes no difference whether we classify the error as one of fact or one of both fact and law. The result is the same. The contracts must be rescinded.”

Because of the rescission of the contract of lease and the proof of record mandating the same, the lessee is entitled to recover those items of damages proved.

The record below shows that Uddo spent considerable sums of money in contemplation of establishing his business in Baton Rouge (Uddo 10 and 11). The largest sum, Fifteen Thousand Five Hundred and No/100 ($15,500.00) Dollars, was paid to San Francisco Bay Company for cancellation of its lease with GSA. Uddo 10 and 11 were admitted without objection. The total expenditures shown amount to Thirty-six Thousand Two Hundred Fifty-eight and 39/100 ($36,258.39) Dollars, including One Thousand and No/100 ($1,000.00) Dollars in attorney’s fees to defend and prosecute the within lawsuit. We hold that Uddo is entitled to recover against defendant in recon-vention, GSA, the sum of Thirty-five Thousand Two Hundred Fifty-eight and 39/100 ($35,258.39) Dollars, which represents his losses herein. We disallow any attorney’s fee.

For the reasons assigned, the judgment of the trial court is affirmed as to the dismissal of the main demand.

Further, for reasons assigned, the judgment of the trial court dismissing the recon-ventional demand against GSA is reversed and set aside. Judgment is rendered in favor of plaintiff in reconvention, Peter Uddo, and against defendant in reconvention, GSA, in the amount of Thirty-five Thousand Two Hundred Fifty-eight and 39/100 ($35,258.39) Dollars, with legal interest thereon from judicial demand until paid.

Judgment is further rendered assessing all costs, trial and appellate, against defendant in reconvention, GSA.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . “If Lessee is prevented from conducting his restaurant operation on account of some legal prohibition that arises for causes unrelated to him and his operation and with which he had no causal connection, then and in that event this lease will terminate, at Lessee’s option at such time as Lessee is put out of possession of the premises; but, provided Lessee has furnished written notice allowing 30 days for discussion. And if Lessee’s occupancy is threatened by any notice, demand, or legal action Lessee will immediately notify Lessor and cooperate with Lessor in defence (sic) of any such threat to his possession and occupancy.” (Plaintiff’s Exhibit 3)


author: SWIFT, Judge.

text:
    Wayne ATTAWAY et al., Plaintiffs-Appellees, v. Louis CULPEPPER, Defendant-Appellant.
    No. 7601.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 1980.
    Rehearing Denied Aug. 22, 1980.

      Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendant-appellant.
    Whitaker & Doggett, John B. Whitaker, Natchitoches, for plaintiffs-appellees.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   SWIFT, Judge.

The plaintiffs, Wayne and Carson Atta-way, brought this suit for a partition by licitation of a tract of land particularly described as:

“A certain tract of land situated and located in the Parish of Natchitoches, Louisiana, situated and located with all buildings and improvements thereon, containing 23 acres, more or less, situated and located on the northwest corner of Section 55, Township 8 North, Range 7 West, bounded North by property now or formerly of Culpepper, East by property now or formerly of Edwards, South by property now or formerly of Pratt, and West by property now or formerly of Johnson.

The defendant, Louis Culpepper, answered denying plaintiffs’ ownership and in the alternative reconvened for damages for breach of warranty. In addition, he pled that title to the property had been established by acquisitive prescription of ten years provided by LSA-C.C. Art. 3478.

After trial the judge found that defendant was aware of an outstanding interest in the land when he bought it in 1952 from Mrs. Lese Rachal Attaway and the heirs of Andrew T, MaHaffey, her former husband. Therefore, the plea of ten years good faith prescription was overruled, the undivided one-fourth interest of each plaintiff was recognized and a partition by licitation was ordered.

The specifications of error by defendant-appellant on this appeal are that the trial court erred in:

1) Finding that he possessed the property in bad faith;

2) Failing to sustain his plea of prescription;

3) Dismissing his reconventional demand for breach of warranty.

The facts are that the property was sold by the Natchitoches Parish Tax Collector to Mrs. Attaway in 1931 for unpaid taxes of 1930 under an assessment to the heirs of A. T. MaHaffey. She was married at the time to R. N. Attaway and presumptively the land was acquired by their community of acquets and gains. Mr. Attaway died in 1948 leaving six children, four of whom conveyed their interests in the property in 1956 to the other two, who are the plaintiffs in this suit.

The 1952 deed to defendant contained a declaration that the vendors were the widow and sole heirs of Andrew T. MaHaffey and that the property was acquired by him while married to Leze Rachal. However, this was not established as a fact. The only acquisition by Mr. MaHaffey in the record is a deed dated March 12,1910, whereby Mr. MaHaffey, who was then married to Alabe-ma Wingate, acquired 80 arpents of land in Section 55, Township 8 South, Range 7 West. The tract was not further identified except by a reference to the recordation of the vendor’s deed of acquisition. Leze Ra-chal and Mr. MaHaffey were not married to each other until 1918.

The defendant’s testimony that he was not aware of any community interest of R. N. Attaway in the property which had succeeded to his children when he purchased in 1952 was contradicted by the testimony of the plaintiffs and also Noble MaHaffey, an heir of Andrew T. MaHaffey.

Noble MaHaffey testified that some time between 1948 and 1951, when he served as a deputy sheriff in Natchitoches Parish, the defendant inquired as to whether he and his mother, Leze Rachal Attaway, were willing to sell the property. He said he told the defendant at that time “the Attaway name had come into it through a tax sale” and there were Attaway heirs as well as Ma-Haffey heirs involved.

Wayne Attaway testified the defendant came to their house a number of times trying to buy the property from his father, R. N. Attaway, but the latter would not sell. He also said that after his father’s death defendant talked to Mrs. Attaway about Wayne’s and Carson’s interests in the property. When defendant brought papers for her to sign (apparently the 1952 deed) he told her he knew about the cloud on the title, but that it would be straightened out later.

Carson Attaway said the defendant came to their house three or four times while his father was alive and tried to buy this property.

Evidently, the trial judge accepted the testimony of the last three persons mentioned hereinabove as being correct. From our review of the record, we certainly cannot say that he was wrong in doing so.

The law provides that “notice of facts which ought to excite inquiry and which if pursued would lead to knowledge of other facts operates as notice thereof. Where one who has had sufficient knowledge of the facts to put him on inquiry and fails to inquire, or one who has cause to inquire and fails to avail himself of the means and facilities at hand to inform himself of the true facts, is chargeable with all the facts which by a proper inquiry he might have ascertained. LaFleur v. Fontenot, supra [93 So.2d 285, La.App.]; Malone v. Fowler, 228 So.2d 500 (La.App. 3 Cir. 1969); Boyet v. Perryman, 240 La. 339, 123 So.2d 79 (1960); Juneau v. Laborde, 219 La. 921, 54 So.2d 325 (1951).” Thibodeaux v. Quebodeaux, 282 So.2d 845, 851 (La.App. 3 Cir. 1973).

With the information that the defendant possessed, which was certainly sufficient to excite inquiry, a duty devolved on him to investigate the title. Having failed in that duty, he is chargeable with knowledge of the plaintiffs’ interests and therefore was not a possessor in good faith.

Defendant’s reliance on Owen v. Owen, 336 So.2d 782 (La.1976) is unfounded. That case stands for the proposition that a third party purchaser may rely on the public records even though he may have some knowledge outside the records which would tend to lay doubt on the deed’s validity. Had the defendant examined the public records in this instance he was entitled to rely thereon, but such an examination would have revealed the plaintiffs’ outstanding ownership.

We conclude that the defendant was at least in legal bad faith at the time of his purchase and when his possession commenced and thus has not acquired title to the property by prescription of ten years.

As to defendant’s reconventional demand against plaintiffs for damages for breach of warranty, it is obvious that it could only have been asserted against Mrs. Leze R. Attaway and the heirs of A. T. MaHaffey, the vendors in the 1952 sale. The plaintiffs were not parties thereto, nor does it appear that they have accepted their mother’s succession. In this case their interests in the land were derived from their father, not Mrs. Attaway. The trial judge therefore correctly dismissed such demand.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against defendant-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Ernest JOHNSON, Plaintiff-Appellee, v. Henry MARICLE and Sam Cloud, Defendants-Appellants.
    No. 7449.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearings Denied Aug. 22, 1980.

      Eugene P. Cicardo, Alexandria, for defendant-appellant.
    Gravel, Roy & Burnes, Dee D. Drell, Alexandria, for plaintiff-appellee.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendant-appellee.
    Henry Maride, in pro. per.
    Before FORET, SWIFT and STOKER, JJ.
   FORET, Judge.

This is a tort suit resulting from a vehicular accident which occurred on November 22, 1974, on Louisiana Highway 10 in Vernon Parish, Louisiana. On that day, Henry Maride was driving a pulpwood truck which was involved in a collision with a tractor being operated by Ernest Johnson. Johnson sued Maride and Sam Cloud alleging that Maride was an employee of Cloud, thereby rendering Cloud vicariously liable for Maricle’s alleged negligence. Plaintiff also sued his own uninsured motorist carrier, Allstate Insurance Company. Allstate, in turn, third-partied Maride and Cloud.

After trial on the merits, judgment was rendered in favor of the plaintiff against Maride and Cloud, in solido, for $20,191.81. Judgment was also rendered in favor of plaintiff against Allstate Insurance Company in the amount of $5,000.00, and in favor of Allstate against Cloud and Maride on Allstate’s third party demand. From this judgment, the defendant, Sam Cloud, perfected this appeal.

The issues on appeal are:

(1) whether or not Henry Maride was an employee of Sam Cloud, and
(2) the validity of the judgment against Henry Maride.

The facts of this case are relatively simple. On the day of the accident, plaintiff, Ernest Johnson, was traveling in a northwesterly direction on Highway 10 in Vernon Parish, headed toward Pitkin, Louisiana. While traveling down the highway, the tractor plaintiff was driving was rear-ended by a pulpwood truck being driven by the defendant, Maride. It is undisputed that Maride was negligent and his negligence caused the accident.

MARICLE’S STATUS

On the day of the accident, Maride was en route to a woodyard, owned and operated by Sam Cloud, with a load of pulpwood. Approximately six months prior to the accident complained of, Cloud had made arrangements for Maride to obtain the pulpwood truck involved in the accident. Since Maride did not have the funds to buy the truck from Cloud, Cloud escorted Maride to a local bank and co-signed a promissory note with Maride so that the latter could obtain a loan to buy the truck from Cloud. Most of the payments on the truck were made by Maride, however, Cloud did make one or two payments on the truck.

Maride testified that he had been hauling pulpwood for Sam Cloud for approximately two to three years prior to the accident. Once the wood was cut and hauled to Cloud’s woodyard, Maride was paid the proceeds which were determined directly by the number of cords of wood he had hauled, less stumpage. The record shows that Cloud would withhold amounts from the proceeds paid to Maride, which amount was used to pay the note on the truck that Cloud had arranged for Maride to purchase. Furthermore, the record shows that on one occasion, Maride delivered pulpwood to a woodyard which was not owned and operated by Sam Cloud. As a result, Cloud threatened to have Maricle’s truck taken away.

The record further reveals that Maride exercised complete control and ownership of the truck and maintained it through the use of his own funds. Title to the truck was in Maricle’s name, and the truck was garaged at his residence. Cloud in no way exercised direct supervision over Maricle’s activities while he was cutting pulpwood. Maride had his own employee whose wages were paid by Maride himself. Maride was free to cut pulpwood wherever he deemed expedient. Cloud did not inform or instruct Maride where to go to find the pulpwood which he would cut and haul to Cloud’s woodyard.

Maride supplied and used his own tools, gasoline and lubricants in his wood-cutting operation. Cloud did not withhold any sums for social security or federal and state income taxes from the proceeds paid to Maride.

The principal elements to be considered in determining whether any employer-employee relationship exists are: (1) selection and engagement; (2) payment of wages; (3) power of dismissal, and (4) power of control. Franklin v. Haughton Timber Co., 377 So.2d 400 (La.App. 2 Cir. 1979), writs denied, 380 So.2d 624 (La.1980); Savoie v. Fireman’s Fund Insurance Co., 347 So.2d 188 (La.1977); Gaspard v. Travelers Ins. Co., 284 So.2d 104 (La.App. 3 Cir. 1973).

Maride was not under the continuing auspices of Cloud and was free to procure pulpwood from whomever he desired. Although Cloud apparently “required” Ma-ride to haul exclusively for him, Maride had in the past hauled pulpwood to another woodyard. Cloud did exercise a type of control over Maride; however, this control was not the type characteristic of an employer-employee relationship. The relationship between Maride and Cloud was more in the nature of a buyer-seller. This being the case, the power of dismissal which an employer ordinarily commands over an employee was not present as it is in the ordinary employer-employee relationship. The wages paid to Maride were directly related to the amount of wood which he cut and hauled to the woodyard. Cloud did not control how much wood Maride cut and sold. The fact that Cloud co-signed a note with Maride in order that Maride could purchase a truck is not a fact of such significance so as to render the existing relationship one of employer-employee. The truck could not be repossessed so long as Maride continued to make the required payments, regardless of Cloud’s posture as a co-maker or surety on the note.

The trial court rendered judgment in favor of Johnson, against Maride and Cloud and Allstate Insurance Company. However, his reasons for judgment did not mention an employer-employee relationship between Maride and Cloud. The trial court’s reasoning in granting judgment as he did, against Cloud, was that Cloud should be held liable for Maricle’s negligence because he (Cloud) made it possible “for Henry Ma-ride to get on the highways of this State with a used wood truck without any public liability insurance to protect the parties such as Ernest Johnson from being injured. . The estate of Sam Cloud is liable for Sam Cloud’s negligence in effectively placing an uninsured motorist on the highway. Sam Cloud is charged with either having known or should have known that Henry Maride was not a financially responsible person as related to the operation of motor vehicles.” If the trial judge had found an employer-employee relationship between Maride and Cloud, he would not have needed to resort to the erroneous theory of recovery on which he based his judgment. Accordingly, we feel free to speculate that the trial court did not believe that an employer-employee relationship existed; otherwise, it would have been much simpler for the trial court to permit recovery by the plaintiff based on the vicarious liability of Sam Cloud as the employer of Maride. This, the trial court did not do. Thus, we conclude that the trial court was of the opinion that no employer-employee relationship existed. The record does not show that the trial court judge was clearly wrong in that regard.

For the foregoing reasons, we are of the opinion that the arrangement which existed between Maride and Cloud was more like that of a buyer-seller rather than that of an employer-employee. Therefore, Cloud is not liable to the plaintiff for the damage sustained by said plaintiff.

VALIDITY OF JUDGMENT AGAINST HENRY MARICLE

No answer has ever been filed in these proceedings by Henry Maride. On the day of trial, plaintiff moved for a preliminary default against Maride; however, the trial court denied the preliminary default and proceeded to trial on November 27, 1978. A preliminary default was entered on November 30, 1978, or three days after trial. The record does not show an entry of a confirmation of default. Consequently, the judgment against Henry Mari-de is invalid.

LSA-C.C.P. Article 2002(2) in pertinent part provides:

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

The judgment signed by the trial court in favor of Allstate Insurance Company, on its third party demand over and against defendant, Henry Maride, is likewise invalid. Accordingly, the judgment against Maride in favor of plaintiff, and in favor of Allstate Insurance Company is hereby declared null, and therefore reversed and set aside. The matter will be remanded for further proceedings against Henry Maride in accordance with the views and findings expressed herein.

QUANTUM

After the accident, Johnson was taken to the emergency room at the Oakdale General Hospital where he was examined by Dr. James Lowry. Dr. Lowry’s clinical examination revealed that Johnson was suffering from a contusion of the lower back and long-standing hypertension. Johnson was then hospitalized for two weeks. While in the hospital, he underwent a program of physical therapy. This hospitalization was not solely the result of the injuries received by plaintiff in the accident of November 22, 1974. The record shows that Johnson had a history of heart disease and hypertension. While in Oakdale General Hospital, he was treated for (1) pneumoni-tis, (2) contusion of lumbar area, cervical spine area, and hips, and (3) hypertension. Dr. Lowry concluded that Johnson’s hypertension and cardiovascular disease were not related to the accident.

On December 11, 1974, Johnson was examined by Dr. Louis A. Gayer, an orthopedist. Dr. Gayer was of the opinion that Johnson had a fracture of an osteophyte on the inferior base of the C-5 vertebra, and a significant cervical strain. He also concluded that Johnson had an acute strain of the lumbar spine.

Johnson was seen by Dr. Lowry sporadically after his hospitalization in November of 1974. These visits were not necessitated solely by the injuries received by Johnson. He was treated for other conditions relative to his respiratory and cardiovascular ailments.

Our review of the record discloses nothing inconsistent with the trial court’s award. The judgment granted Johnson $16,500.00 in general damages and $3,691.81 in medical and property damage.

Our analysis of the facts and circumstances peculiar to this case and this plaintiff leads us to conclude that the trial court did not abuse its discretion in granting the award it did. Reck v. Stevens, 373 So.2d 498 (La.1979).

For the above and foregoing reasons, the judgment of the trial court is reversed insofar as it finds Sam Cloud to be vicariously liable and/or financially responsible for the negligence of Henry Maride.

All costs of this appeal are assessed against defendant, Allstate Insurance Company.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

SWIFT, J., specially concurring.

      . Plaintiff-appellee, Ernest Johnson, died on April 19, 1979, and his wife, Lettie L. Johnson, and children, Crockett Johnson and Peggy Johnson Williams, have been substituted as legal representatives for all purposes in these proceedings.

      . Sam Cloud died after the institution of this lawsuit, and Dr. Walter Cloud has been appointed the provisional administrator of the Succession of Sam Cloud.

      . In reaching our conclusion herein (a tort case) that an employer-employee relationship did not exist between Maride and Cloud, we wish to emphasize that a different result might be reached if this case involved a workmen’s compensation claim by Maride and/or one of his employees against Cloud. Other factors to be considered in a compensation case could change the result in classifying the relationship between the parties, such as where Maride may be an independent contractor who performed substantial manual labor directly related to and in furtherance of Cloud’s primary business or occupation. In other words, different statutory and jurisprudential rules in a workmen’s compensation case might call for a different result from that which we reach herein, a tort case.