text:
    Barbara Jean Simkus EMERY v. Nell Buchanan EMERY, Executrix for the Succession of Arthur Buchanan Emery.
    No. 13520.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Christopher M. Moody, Hammond, for plaintiff.
    Matthew J. Farley, Deutsch, Kerrigan & Stiles, New Orleans, for defendants.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

This is an action by the surviving spouse, Barbara Jean Simkus Emery, against the estate of her deceased husband, Arthur Buchanan Emery, who died testate on May 19, 1977.

The plaintiff-appellee and decedent were separated by judgment of the Twenty-first Judicial District Court on September 12, 1975. Decedent, Arthur Buchanan Emery, was a successful insurance executive in Hammond, Louisiana. In settlement of the community, appellee and her late husband executed a settlement agreement by authentic act. Essentially, it provided that decedent was to pay to his wife the sum of $50,000.00, payable “. . . Five Thousand and No/100 ($5,000.00) Dollars on the date of the execution of this settlement instrument, the balance of Forty-five Thousand and No/100 ($45,000.00) Dollars payable on or before one year from date.” The only other relevant portions of the community property settlement were Mr. Emery’s agreement to pay to Mrs. Emery the sum of $600.00 monthly for one year and to maintain certain insurance premiums.

On August 25, 1976, some eleven months later, the parties amended, by authentic act, the settlement agreement by giving Mr. Emery an additional year (or to September 12, 1977) to pay the $45,000.00 as provided for in the authentic act of September 12, 1975. The other payments of $600.00 monthly and insurance premiums were to be continued.

In February of 1977, a reconciliation was confected and the couple lived together until shortly before his death on May 19,1977. At no time did the husband and wife execute an act reestablishing the community of acquets and gains as required by La.C.C. article 155.

Plaintiff-appellee thereafter filed this action against decedent’s estate seeking to protect her claim and interest. At the trial on the merits, defendant-appellant adduced testimony tending to show that the decedent left a life insurance policy payable to his wife, appellee, in the amount of $146,-000.00; that he paid her the sum of $600.00 monthly until their reconciliation and thereafter, $1,000.00 monthly until his death. Defendant further sought to prove that it was Mrs. Emery’s intention to abandon execution of the settlement agreement once she and her husband were reconciled. Finally, defendant contended that any and all monies and benefits received by Mrs. Emery, either directly from her husband or his estate, should be credited or set off toward payment of any amount due under the settlement agreement. The trial court rejected all defenses-excepting one-and awarded judgment in favor of plaintiff-appellee. We affirm.

We start with the principle that a judgment of separation from bed and board, lawfully obtained, puts an end to the community of acquets and gains. From a review of the record, there are but two questions presented which warrant discussion; (1) Whether a reconciliation after judgment of separation renders inoperative and unenforceable all executory portions of a settlement agreement, and (2) whether the proceeds of an insurance policy issued to decedent, which were paid to the surviving spouse, constitutes “payment” under the circumstances of this case.

Appellant contends that the decision of the trial court is irreconcilable with the holdings of Moody v. Moody, 227 La. 134, 78 So.2d 536 (La.1955) and Reichert v. Lloveras, 188 La. 447, 177 So. 569 (La.1937). In Moody the wife filed suit for separation. Within a few days an agreement had been hammered out proposing settlement of the property wherein the husband would pay child support but no alimony. Judgment of separation was rendered several months later and the property settlement was promptly executed. In due course, the parties were reconciled. After several years, they were again separated and the husband brought suit for divorce. The wife reconvened and asked for alimony for herself which was granted. On appeal the husband urged that the property settlement was binding on the parties. The Supreme Court rejected that argument holding that:

“. . . the reconciliation not only destroyed the effect of the judgment of separation but the wife’s waiver of alimony, with the exception of the dissolution of the community of acquets and gains which would have to be reestablished in pursuance of articles 152, 155 of the LSA-Civil Code. ” (Emphasis added.)

We construe this holding to say simply that the wife is entitled to alimony once the marriage is reestablished and that each reconciliation activates that right, notwithstanding a prior waiver. We do not view it as any departure from the legislative requirement that the community must be reestablished by authentic act. It does not and cannot stand for any proposition that a reconciliation destroys both (1) legal separation and (2) community property settlement. The decedent’s promise to pay a certain sum ($45,000.00) was given in exchange for full ownership in substantial real estate holdings, stocks and bonds, life insurance policies issued on the lives of the two children, and all household furniture, etc., not expressly conveyed to appellee. Appellee’s interests were no more nullified by reconciliation than those of her spouse, now deceased. Moody is, therefore, inapplicable; likewise, Lloverás, which involves similar factual circumstances.

Appellant’s next contention is that the proceeds of the life insurance policy totaling $146,000.00, which was paid to ap-pellee upon the death of her husband, may be considered as offset for decedent’s $50,-000.00 indebtedness. The trial court’s findings and conclusions relative to this issue which are set out in its written reasons for judgment merit restatement:

“. . . Defendants do, however, claim certain offsets for the obligation owed by Mr. Emery’s estate. First and foremost was the life insurance proceeds that the Plaintiff received in the sum of $146,-000.00.
“The Court is of the opinion that no offset can be granted for this sum. The Defendants presented no legal basis for such on offset and the facts discerned from the evidence presented at the trial would indicate that no offset was intended by the decedent. This Court is convinced that before a legitimate offset can be asserted for insurance proceeds received there must be some indication on behalf of the parties to indicate their intent. Absent some clear separate agreement or any other causal connection between the proceeds of the policy and the debt, the presumption must be that the insurance was a gratuity.
“Furthermore, the Court fails to see the distinction between the present set of circumstances and the routine succession proceedings in which the widowed wife received both her half interest in the community as well as any insurance benefits for which she was the beneficiary. The mere fact that in this case the parties were legally separated and had identified their respective portions of the community property should make no difference.
“Also, the court takes cognizance of the fact that life insurance in general is sui-generis and not governed by the provisions of the Revised Civil Code of 1870 or any other laws of this State relative to the form of donation inter vivos. See LA. R.S. 15:21 and Catalano v. United States, District Court 1968, 293 F.Supp. 1300. See also Tucker v. Metropolitian (sic) Life Insurance Company, 11 Orleans App. 59 and in re Brotherhood of Locomotive, Firemen and Enginemen, 119 So. 79 (1928 La.App.).
“It was further established at the trial that the decedent was a very knowledgeable insurance executive. Had the decedent wished to deprive his widow of the life insurance proceeds, he simply could have changed the beneficiary which would have been the clearest indication of his intent. His failure to do so is a strong indication that he desired her to have both the insurance proceeds as well as her half of the community property.
“For these reasons the Court refuses to acknowledge any offset for the insurance proceeds received by Mrs. Emery.”

Accordingly, the judgment of the trial court is affirmed at appellant’s costs, there being no manifest error in the court’s ruling.

AFFIRMED.

      . Art. 155 The judgment of separation from bed and board carries with it the separation of goods and effects and is retroactive to the date on which the petition for same was filed, but such retroactive effect shall be without prejudice (a) to the liability of the community for the attorneys’ fees and costs incurred by the wife in the action in which the judgment is rendered, or (b) to rights validly acquired in the interim between commencement of the action and recordation of the judgment. Upon reconciliation of the spouses, the community may be reestablished by husband wife jointly, as of the date of the filing of the suit for separation from bed and board, by an act before a notary and two witnesses, which act shall be recorded in the conveyance office of the parish where said parties are domiciled, but which act shall be without prejudice to rights validly acquired in the interim between rendition of the judgment and recordation of the act of reconciliation. (As amended by Acts 1962, No. 178.)


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Houston J. DOUCET v. Larry WELLS et al.
    No. 13532.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    J. Lee Wimberley, Jr., Church Point, for plaintiff-appellant Houston J. Doucet.
    William R. Aaron, Baton Rouge, for defendants-appellees Larry Wells and Suzanne Simmon Wells.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is a garnishment proceeding. Plaintiff, Houston J. Doucet, was the holder of a chattel mortgage on a horse in the amount of $2,000.00. He obtained a money judgment against Larry Wells and Suzanne Simmon Wells on the mortgage note in Acadia Parish which also recognized the chattel mortgage, the judgment being dated June 7, 1979. The present action is one to make that judgment executory and to obtain garnishment in East Baton Rouge Parish against Russ Mixon. Plaintiff alleges in his garnishment petition that the horse was in the possession of Mixon, who, it appears, was stabling the horse. Mixon contends that he has sold the horse to one Hughes in Mendenhall, Mississippi, for $2,500.00 on July 24,1979, and that plaintiff Doucet is not entitled to the proceeds of the sale because of the provisions of the Louisiana Abandoned Animals Act, LSA-R.S. 3:2451 et seq.

The present matter arose on a rule to traverse Mixon’s answers in the garnishment proceeding. Plaintiff gives two reasons in his pleadings for traversing the answers. One is that the expenses given by the garnishee for feeding the animal in the amount of $2,659.35 were excessive. The second reason alleged is that garnishee did not respond by outlining in detail the actions that he took to comply with the Abandoned Animals Act. The sole issue considered by the trial judge in his written reasons for judgment was whether or not plaintiff’s rights as a chattel mortgagee primed the garnishee’s rights under the Abandoned Animals Act. He held that the garnishee’s rights under the Abandoned Animals Act primed the chattel mortgagee’s rights. We reverse. That issue does not appear to have been raised in the pleading bringing the rule to traverse the answers to the garnishment interrogatories. However, that issue was the sole issue considered on the trial on the rule, and the pleadings were clearly enlarged by the testimony on that issue, which was received without either counsel’s objection.

We will then pass on to the determination of whether or not the Abandoned Animals Act primes the chattel mortgage. We do not find that it does, as we find that the Abandoned Animals Act is inapplicable. We quote from the Abandoned Animals Act:

“Sec. 2452. Abandoned animals
A. An animal shall be considered abandoned when the owner thereof has not paid the charge for veterinarian services, including medical, or for boarding, within thirty days after rendition to the owner of the invoice for such services or boarding and no other agreement with the owner has been reached for the payment of such charge for services or boarding. The person to whom the charges are due may then give notice, as provided in R.S. 3:2453.
B. The owner of an abandoned animal shall be deemed to have relinquished all rights and claims to such animal by virtue of such abandonment, except as provided in R.S. 3:2454(B).
“Sec. 2453. Notice requirements; freedom from liability
A. The notice required in R.S. 3:2452(A) above shall be given to the owner of the animal or the owner’s agent at his last known address by registered mail or by certified mail, return receipt requested, and shall contain a statement that if the animal is not claimed within ten days after receipt of the notice, the animal may be sold, donated, turned over to the nearest humane society or dog pound, or otherwise disposed of as the person having custody of the animal may deem proper.
B. In the event that the notice described in R.S. 3:2453(A), above, cannot be delivered for any reason, or in the event that such notice is returned as ‘refused’, ‘addressee unknown’, ‘not at this address’, or other similar designation, then the person having custody of the animal shall cause to be published once in a newspaper of general circulation in the parish where such custodian is doing business, a notice directed to the owner of the animal or such owner’s authorized agent, stating that if the animal is not claimed within ten days after publication of the above described notice, the animal may be sold, donated, turned over to the nearest humane society or dog pound, or otherwise disposed of as the person having custody of the animal may deem proper.
C. The receipt of notice by the owner or his agent, or the publication, whichever is applicable, shall relieve the custodian of any liability for the sale, donation, euthanasia, or other disposal of the animal. “Sec. 2454. Sale or disposal of animal;
disposition of sale proceeds
A. If, in accordance with the notice, the animal is sold at public or private sale, the proceeds shall be applied to the amount, if any, due the custodian for any goods or services furnished to the animal, including all reasonable charges of notice, advertisement, and sale. The balance, if any, shall be paid to the owner of the animal, and the custodian shall retain the right to proceed against the owner for any deficiency.
B. Prior to the time of sale of such animal or transfer thereof to the nearest humane society or dog pound, or other disposal thereof, any person claiming the right of property or possession of such animal may pay the amount necessary to satisfy the charges for services rendered to the animal, or on behalf of the animal, including all reasonable charges of notice, advertisement, and sale. Upon payment of this amount, the animal shall be delivered to the person making the demand, if he is entitled to possession. Otherwise the animal shall be retained according to the terms of the notice, and shall be sold, or otherwise disposed of.”

The Abandoned Animals Act does not apply for two reasons. The first is that it is intended to cut off the rights of the owner and makes no mention of cutting off the rights of a mortgagee. The second reason that it does not apply is that the rights of the owner to the proceeds of a sale of an abandoned animal, as opposed to the rights of the owner in the animal itself, are not cut off; rather they are expressly recognized, as is clearly established by LSA-R.S. 3:2454 A. Therefore, no question exists as to whether or not the Abandoned Animals Act primes the chattel mortgage in the strict sense of the word “prime”, because the Abandoned Animals Act does not apply to the facts of the present case; it does not deal with the rights of a mortgagee.

Accordingly, the judgment of the trial judge is reversed, and the matter remanded to the trial court for further proceedings not inconsistent with this opinion, all costs of this court and of the trial court to be assessed to the garnishee, Mixon.

REVERSED AND REMANDED.


author: REDMANN, Judge.

text:
    Jessie S. CHATELAIN v. AMERICAN CAN COMPANY.
    No. 10984.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 10, 1980.
    Rehearing Denied Sept. 15, 1980.
    Coleman T. Organ, Organ & Meyer, New Orleans, for plaintiff.

      John E. Jackson, Baldwin J. Allen, John E. Jackson, Jr., New Orleans, for defendant.
    Before REDMANN, GULOTTA and GARRISON, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal, on exception of no cause of action, of his suit against his corporate employer for damages, alleging that noise at his employment caused him a partial hearing loss and hypersensitivity to loud noises.

Accepting plaintiff’s petition’s allegations as true, his petition would state a cause of action for workers’ compensation and it might therefore be argued that the judgment appealed from is not wholly correct. However, the context is that plaintiff has already tried and lost a suit for workers’ compensation, 344 So.2d 1180, this court finding that he did not prove his hearing problems were caused by his work environment. Thus, insofar as the petition is viewed as stating a cause of action for workers’ compensation, defendant’s exception of res judicata would require its dismissal. And, to the extent that plaintiff seeks any recovery other than workers’ compensation, he does not state a cause of action because of the exclusivity of workers’ compensation, R.S. 23:1032.

Affirmed.


author: CUTRER, Judge.

text:
    Charles Joseph DEESE, Plaintiff-Appellee, v. Vera Ann DEESE, Defendant-Appellant.
    No. 7573.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.
    Rehearing Denied Sept. 19, 1980.

      Jack W. Caskey, of Caskey & Pizzolatto, Lake Charles, for defendant-appellant.
    Arnette, Nichols & Riley, Ltd., W. Greg Arnette, Jennings, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This is a child custody suit. The trial judge removed Charles Deese, age 8, and Skye Deese, age 7, from the custody of their mother, Vera Ann Deese, and placed the children in the custody of their father, Charles Joseph Deese, in a rule proceeding. Vera Ann Deese has appealed the trial court judgment. We reverse.

Charles Joseph Deese and Vera Ann Deese were married on May 16,1966. They made their home in Jennings, Louisiana. Two children were born of the marriage, Charles and Skye. Charles was born in April of 1970 and Skye was born in May of 1971. On May 9, 1975, the Deeses were judicially separated in uncontested proceedings. Mrs. Deese was awarded custody by consent. On December 4, 1975, the parties were divorced in an uncontested proceeding. Custody was again awarded to Mrs. Deese by consent.

In 1975, Vera Deese and the two children moved from Jennings to Lake Charles, Louisiana. She obtained employment in Lake Charles and remained there until October 1978. At that time she moved to Warring-ton, Florida, the home of the paternal grandparents, John and Beulah Deese. Upon arriving in Florida, she rented a house approximately five blocks from the grandparents. Vera obtained employment in Florida shortly after her arrival. At times she was working at two jobs. The employment continued until May 1979.

The relationship between the mother and the paternal grandparents was very amicable. Both of the grandparents were also employed. The employment of the mother and grandparents kept them away from home during the day. During this period, November 1978 to May 1979, both children would spend a majority of their nights with the grandparents. The record reflects that the children enjoyed staying with their grandparents. The grandparents enjoyed the visits of the children. The mother testified that she had no objection to this arrangement.

When the children stayed with the grandparents, the mother saw them practically every day. She took Charles to school or to the baby-sitter’s home each day. Also, the mother would take the children to the beach for outings on weekends. The expenses of the baby-sitter was paid by both the mother and the grandparents. During the latter part of this six-month period, the girl, Skye, began staying with her mother the majority of the time.

During this time, the visitation privileges of the husband were exercised with full cooperation from the mother. The husband testified that the children spent Christmas of 1978 with him in Jennings. He also visited the children in January and February of 1979. Arrangements for visitation were made through the grandparents. In Mid-June of 1979, Deese picked up his children at his parent’s home in Warrington, Florida. Mrs. Deese had given her consent to Deese’s keeping the children for the summer.

While the children were with the father during the summer, Mrs. Deese called on two or three occasions to speak to the children. She wrote them two letters also. She made no visits to see them, though she began living in Lake Charles in July 1979. The relationship between the mother and her ex-husband was apparently less than amicable.

On August 23, 1979, Deese filed a rule to show cause why he should not be awarded custody of the children. On August 29, 1979, Mrs. Deese contacted her husband about her picking up the children. Deese informed her that he had enrolled the children in school and had filed suit seeking to obtain custody of them.

On August 30, 1979, Mrs. Deese filed a petition seeking issuance of a writ of habe-as corpus and return of the children to her control. These matters were consolidated for trial which occurred September 7, 1979.

The parties had not lived together since October 1973. The children from that time until the summer of 1979 had been in the custody of their mother.

The record further reflects that Deese is a chiropractor; that he had remarried some three or four years prior to trial; that he and his second wife had one small child; that they lived in a brick, four bedroom home on a two acre lot; and that Deese had a net income of about $6,000.00 per year.

The record also reflects that Mrs. Deese works out of a Lake Charles electrician’s union, Local 861, and that she was earning approximately $15,000.00 per year. She was living in an apartment in Lake Charles at the time of trial with the intention of purchasing a home if she regained the custody of the children.

In his oral reasons for judgment, the trial judge concluded that the best interest of the children required that custody be granted to the father with reasonable visitation rights to the mother. The trial judge was of the opinion that the father could provide a more stable environment for the children.

The issue on appeal is whether the trial judge erred in changing custody of the children to the father from the mother.

The current law governing the change of custody between parents is set forth in LSA-C.C. art. 157(A), which reads, in pertinent part, as follows:

“In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent. Such custody hearing may be held in private chambers of the judge. The party under whose care the child or children is placed, or to whose care the child or children has been entrusted, shall of right become natural tutor or tutrix of said child or children to the same extent and with the same effect as if the other party had died.”

As stated in Thornton v. Thornton, 377 So.2d 417 (La.App. 2nd Cir. 1979):

“. . . The father and the mother stand on equal footing at the outset and the role of the court is to determine the best interest of the child based on the relative fitness and ability of the competing parents in all respects to care for the child.”

The court went on to say that:

“The legislative amendments do not, however, do a way with the real life fact, based on human experience, that it is often, in many if not most family circumstances, in the best interest of young children to be cared for by their mother. This nonmaterial concept remains a factor to be considered, along with many others, and will often compete with more materialistic factors that favor the father. It is correct, however, that this concept does not create a preference or presumption in favor of the mother that must be overcome by proof of the mother’s unfitness or incapability.”

We must point out that the previous awards of custody to the mother in this case were not considered decrees. The custody was uncontested in both the separation and divorce proceedings. Therefore, the heavy burden of proof required in Fulco of the party seeking the custody change does not apply. The test is the best interest of the child. Hays v. Hays, 365 So.2d 563 (La.App. 1st Cir. 1978).

Prior custody, however, is still to be considered a factor when determining who ought to have custody. Maintaining stability of environment continues to be a factor in determining the best interest of the child. Bordelon v. Bordelon, 381 So.2d 871 (La.App. 3rd Cir. 1980), writ granted, 385 So.2d 794 (La.1980). As noted above, it is often in the best interest of young children to be cared for by their mother. Thornton v. Thornton, supra.

In the present case, the children had been in the custody of their mother since 1973. The children were young and have spent the majority of their lives in the care of their mother. There is nothing in the record to indicate moral unfitness or other unsuitability of the mother. Mrs. Deese has sufficient income for the support of the children, and is quite able to provide a home. She earned $15,000.00 in 1979 and was earning $250.00 per week at the time of trial. She also had $1,900.00 in a savings account. While we may question the wisdom of allowing the children to spend so much time with their grandparents under some circumstances, we cannot say that such an arrangement could be criticized under the facts presented here. The cooperation between the mother and the grandparents inured to the benefit of the children. We cannot label such an arrangement as a neglect of the children by the mother. We conclude that the father has furnished no convincing evidence that the best interest of the children will be served by changing the custody. We find the trial judge abused his discretion in granting custody to the father in light of all of the factors to be considered.

The judgment appealed from is therefore reversed and it is ordered, adjudged and decreed that there be judgment in favor of Vera Ann Deese and against Charles Joseph Deese, dismissing the custody rule at his costs.

It is further ordered, adjudged and decreed that the writ of habeas corpus is hereby made peremptory and Charles Joseph Deese is ordered to return the children, Charles and Skye Deese, to Vera Ann Deese within fifteen (15) days from the finality of this judgment.

REVERSED AND RENDERED.

      . Fulco v. Fulco, 254 So.2d 603 (La.1971).


text:
    Edward McGUIRE, Jr., Plaintiff-Appellee, v. Katherine D. HONEYCUTT; James A. Welch; and The Military Department, State of Louisiana, Defendants-Appellants.
    No. 7704.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.
    Rehearing Denied Sept. 19, 1980.

      Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants-appellants.
    Christopher J. Roy, Gravel, Robertson & Brady, Thomas K. Bracato, Alexandria, for plaintiff-appellee.
    Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This is a tort suit. Edward McGuire seeks to recover damages for personal injuries sustained in a collision between two automobiles. Named as defendants were Katherine D. Honeycutt, James A. Welch, the Military Department, State of Louisiana, and Travelers Insurance Company, the insurer of the Military Department. Following a jury trial on the merits, the trial judge granted a directed verdict in favor of plaintiff against the defendants on the issue of liability. The issue of quantum of damages (special and general) was submitted to the jury which rendered a verdict in favor of the plaintiff for $35,000.00. Judgment was then rendered in favor of plaintiff and against defendants in the sum of $35,000.00. Defendants Welch and the Military Department have appealed. The plaintiff has answered the appeal asking for an increase in the award for damages.

This is a companion case to Honeycutt v. Travelers Insurance Company, 387 So.2d 680 (La.App. 3rd Cir. 1980), Docket Number 7705, in which a separate opinion is being rendered this date.

The record reveals the following undisputed facts: James A. Welch was employed by the Military Department of the State of Louisiana at Camp Beauregard near Pine-ville, Louisiana. Camp Beauregard also contains a penal institution operated by the Department of Corrections of the State of Louisiana. On the evening of November 8, 1978, Welch received a call requesting that he transport a sick inmate of the Department of Corrections facility to the Huey P. Long Memorial Hospital. The inmate was placed in a station wagon which was equipped with flashing lights and belonged to the Military Department. The inmate was accompanied by the plaintiff (McGuire), who was employed by the Department of Corrections, and another employee of the Department of Corrections.

Welch drove the station wagon with flashing lights in excess of the posted speed limit. It was dark and raining. As Welch, driving southerly on Main Street in Pine-ville, approached the intersection of Shamrock Street and Main, the traffic light turned red. Welch attempted to ascertain whether any traffic was approaching the intersection on Shamrock, but his view was obstructed. Welch, however, seeing no lights of approaching cars, proceeded into the intersection whereupon the station wagon was struck by a vehicle driven by Katherine D. Honeycutt who was proceeding westerly on Shamrock and who had entered the intersection on a green light. McGuire, a passenger in the vehicle driven by Welch, was seriously injured.

It was conceded at trial and on appeal by all parties that Mrs. Honeycutt was free of negligence. Further, it is not disputed that Welch was at fault in causing the accident.

McGuire brought suit in tort against the defendants for his personal injuries. Defendants denied liability in tort contending that LSA-R.S. 23:1032 provided that plaintiff’s exclusive remedy was workmen’s compensation.

Following the close of the testimony and evidence several exceptions and motions were considered by the trial judge.

In oral reasons for judgment, the trial judge overruled a peremptory exception of no cause of action and denied the motion for a directed verdict filed by defendants. He stated that he so ruled for the reasons that plaintiff and Welch were employed by different departments of the State; that Welch’s act of running the red light was “intentional,” and that Welch was also not acting in the normal course and scope of his employment at the time of the accident. He thus concluded that this tort action was not barred by LSA-R.S. 23:1032.

The issues on appeal center around the provisions of LSA-R.S. 23:1032, a part of the workmen’s compensation law. This statute provides, in part, as follows:

“The rights and remedies herein srrant-ed to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
“Nothinsr in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
“The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not eneased at the time of the injury in the normal course and scope of his employment: . . . .” (Emphasis added.)

The above statute had the effect of abolishing “executive officer” suits except (1) in those cases where the act causing the injuries was an “intentional act,” or (2) the “officer, director, stockholder, partner or employee . . . [was] not engaged at the time of the injury in the normal course and scope of his employment.”

We must decide whether McGuire can maintain this suit for damages against the Military Department and/or Welch under the provisions of LSA-R.S. 23:1032. To accomplish this we must determine:

(1) Whether Welch and McGuire are considered employees of separate departments of the State or whether they are actually both employees of the State of Louisiana;
(2) If we conclude that they are both employees of the State of Louisiana, we must next determine whether McGuire’s injuries resulted from an “intentional act” of Welch; and
(3) If we determine that Welch’s act was not intentional, then we must decide whether Welch was acting in the “normal course and scope of his employment” at the time of the accident and injury.

I.

It is undisputed that Welch and McGuire were performing duties for two different departments of the State at the time of the accident. The question then arises as to whether they are to be considered as employees of the departments or employees of the State for the purpose of workmen’s compensation.

This question was recently considered in the case of Wright v. Moore, 380 So.2d 172 (La.App. 1st Cir. 1979), writ den., 382 So.2d 164 (La.1980). The court, in Wright, was faced with the issue of whether a state employee in one department may bring suit against the State in tort for injuries caused by the negligence of an employee of another department of the State. The court held that the injured employee’s exclusive remedy was workmen’s compensation under LSA-R.S. 23:1032. In reaching this conclusion, the court stated as follows:

“The State of Louisiana, as a governmental unit, is charged with promoting the health, safety, education, and welfare of the people. Preamble, La.Const.1974. To carry out this public mandate, many persons are employed in various capacities by different executive departments and agencies. The function of promoting traffic safety (maintaining a traffic signal) and the function of promoting health (providing nurses) are separate and different. However, each function involves an obligation owed by the State which is related to that flowing from the other. The obligation in each instance is to provide an essential state service. The status of the persona exercising the separate functions and discharging the obligations does not change.
“We cannot find in this instance that the State of Louisiana occupies a dual capacity, that of employer and tortfeasor. Whether maintaining the traffic signal alleged by the plaintiff to have played a causative role in the accident, or whether providing nurses for health care, the status of the State in this lawsuit is that of employer only.”

Furthermore, LSA-R.S. 23:1034 provides that the provisions of Chapter 10 of Title 23 (Workmen’s Compensation) applies to all persons employed by the State and that the provisions of that Chapter “shall be exclusive, compulsory and obligatory; . . . .”

We agree with the reasoning in Wright and apply it to this case. In this instance, Welch and McGuire were performing duties to promote health, safety and welfare for the people of the State when the accident occurred. We, therefore, hold that James A. Welch and Edward McGuire, Jr., were both employees of the State of Louisiana at the time of the accident.

Thus, we conclude that McGuire is barred from bringing suit against the Military Department, State of Louisiana and Welch, its employee, since the Military Department is indistinguishable from the State of Louisiana for purposes of workmen’s compensation unless one of the exceptions to immunity as provided in LSA-R.S. 23:1032 is applicable.

II.

We now turn to whether McGuire can maintain his suit in tort under the “intentional act” exception to immunity provided in LSA-R.S. 23:1032.

The trial court, in its comments on the motions for directed verdict, expressed the opinion that Welch’s failure to slow down at the intersection of Main and Shamrock was in complete derogation of the rights and safety of others. He concluded that the act of failing to stop was intentional and that Welch could reasonably believe that his violation of the traffic laws would result in injuries.

Plaintiff argues on appeal that his motion for directed verdict was properly granted because the act of Welch in failing to stop was intentional and therefore Welch and the Military Department are liable in tort as an exception to the tort immunity provided by LSA-R.S. 23:1032. Plaintiff contends that any act done intentionally, regardless of whether the actor intended the result or should have believed that the result was substantially certain to follow, which results in an injury, allows a suit to be brought against the employer and employee in tort.

Defendants, however, argue that “intentional act” as used in that portion of R.S. 23:1032 regarding the civil liability of employees means “intentional tort.” Defendants further argue that, for there to be an intentional tort, the tortfeasor must have intended to cause the result and that he should have believed that the result was substantially certain to follow. Defendants contend that nothing in the record shows any such intent.

In the recent case of Guidry v. Aetna Cas. & Surety Co., 359 So.2d 637 (La.App. 1st Cir. 1978), writ den., 362 So.2d 978 (La.1978), the court was faced with the issue of what elements are necessary to constitute an intentional act under LSA-R.S. 23:1032. In Guidry, plaintiff’s minor lost the sight in his left eye as a result of an accident which occurred during the course and scope of his employment. The employer placed an open knife outwards on a shelf at eye-level near the plaintiff’s son. The son turned and was cut in the eye by the knife, causing the loss of the eye. Suit was brought in tort. In affirming the trial court judgment sustaining the employer’s exception of no cause of action under the exclusive remedy doctrine of LSA-R.S. 23:1032, the court held as follows with regard to the elements necessary to constitute an intentional act under LSA-R.S. 23:1032:

“To constitute the requisite intent to result in civil liability, the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow. See Monk v. Veillon, 312 So.2d 377 (La.App. 3rd Cir. 1975); Prosser, Law of Torts, (West 1971) pp. 31-32.”

See also, Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir. 1979).

We agree with the definition of “intentional act” as set forth in Guidry. We find that the record does not establish an intentional act within this definition. The evidence fails to establish that Welch, in attempting to rush a sick inmate to the hospital, desired to bring about the result which followed, nor that Welch should have believed that the result was substantially certain to follow. Therefore, neither Welch nor the Military Department can be sued in tort under the “intentional act” exception as set forth in LSA-R.S. 23:1032.

Plaintiff cites the case of Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980), in support of his position on this issue. We have carefully reviewed Bazley. Insofar as it may conflict with the holding herein, we respectfully disagree with Bazley.

III.

Since we have determined that the “intentional act” exception does not apply, we must now determine whether Welch was acting outside the normal course and scope of his employment. If so, Welch would have no immunity to suit in tort by McGuire.

Welch testified that transporting inmates from the Camp Beauregard correction facility for emergency treatment when requested was part of his duties at Camp Beauregard. He did say that he was not trained to administer first aid and that administering first aid was not a normal part of his duties.

The trial judge found that Welch was acting outside of his normal course and scope of employment since he normally was engaged in patrolling Camp Beauregard’s military base. The trial court concluded that the tort action was not therefore barred against the defendants.

Plaintiff argues that by using the adjective “normal” to modify the term “course and scope of employment” the Legislature limited the ambit of immunity from tort liability provided in LSA-R.S. 23:1032. He argues that since the trial judge found that the acts performed by Welch leading to the accident were not regularly performed by Welch in the course of his employment Welch is not immune from tort liability for harm resulting from those acts.

We disagree. The purpose of Act 147 of 1976 amending LSA-R.S. 23:1032 was to extend tort immunity not only to the employer but also to any principal, officer, director, stockholder, partner or employee of an employer. The act closed the loophole which allowed “executive officer” suits by eliminating the right to tort recovery in cases where the Compensation Act is applicable. If we adopt plaintiff’s argument, we will open “another amorphous loophole” which we believe would not be consistent with the legislative intent to restrict tort liability for co-employees and providing for recovery by workmen’s compensation.

We find that Welch was acting within the “normal course and scope of employment” for purpose of tort immunity under LSA-R.S. 23:1032. He was performing services arising out of and incidental to his employment by the State of Louisiana in the course of the State’s business.

Plaintiff also argues that a broad interpretation of “normal course and scope of employment ” is to give an unconstitutional application of LSA-R.S. 23:1032. This argument is without merit. The constitutionality of LSA-R.S. 23:1032 is well settled. Perez v. Continental Cas. Co., 367 So.2d 1284 (La.App. 3rd Cir. 1979), writ den., 369 So.2d 157 (La.1979). Burmaster v. Gravity Drainage Dis. No. 2, 366 So.2d 1381 (La.1978). These cases clearly establish that the Legislature may validly regulate causes of action including replacement or abolition that one person may have against another for personal injuries. Such regulation does not deny equal protection of the law or due process.

We conclude that, under the facts presented, McGuire is barred by LSA-R.S. 23:1032 from suing the Military Department or Welch in tort.

Since we find these issues dispositive of the case, we do not reach other issues raised in the appeal or the answer to the appeal.

We conclude therefore that the trial judge erred in awarding a directed verdict in favor of plaintiff.

For the assigned reasons, the judgment of the trial court in favor of Edward McGuire, Jr., and against appellants is reversed and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed against appellants at plaintiff’s costs.

REVERSED AND RENDERED.

      . Mrs. Katherine D. Honeycutt was dismissed as a defendant in this suit prior to trial, and is, therefore, no longer part of this suit (Number 7704). The term “defendants” as hereinafter used refers only to the appellants in this suit.

      . Travelers Insurance Company has not perfected an appeal and is not a party before this court.

      .McGuire testified as follows concerning the occurrence of the accident:
      “Whenever I was, 1 was turned sideways at first, I looked forward, because there was a good bit of traffic, it was green, when I first looked at it, but the patient was just like has been mentioned before in testimony, was hollering and making a lot of noise, I turned around and tried to care for him, when I kind of looked back again, when I did, it was red, but was too close and about the same time I seen the automobile from the left coming out of the intersection behind that building I just seen the front end part from then on, it was nothing that I can recollect except just a lot of noise and everybody bouncing around.”

      . Whether Welch was acting outside the normal course and scope of employment does not affect the immunity of the Military Department, State of Louisiana, since this exception applies only to “any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment.”

      . Malone and Johnson, Louisiana Civil Law Treatise, Vol. 14, Worker’s Compensation Law and Practice (2d Ed. 1980) § 364, p. 156.


text:
    Katherine D. HONEYCUTT, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellants.
    No. 7705.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.
    Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants-appellants.
    Chris J. Roy, Gravel, Robertson & Brady, Thomas K. Bracato, Alexandria, for plaintiff-appellee.
    Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This is a companion suit with the case McGuire v. Honeycutt, et al., 387 So.2d 674 (La.App. 3rd Cir. 1980), Docket Number 7704.

Katherine D. Honeycutt brought this action to recover damages for personal injuries arising out of an intersectional collision. Defendants are James A. Welch, the State of Louisiana through the Military Department, and Travelers Insurance Company, insurer of the Military Department. The trial court awarded judgment to plaintiff and against defendants in the sum of $256.94 for special damages and $8,500.00 as general damages. Defendants have appealed with regard to the award of general damages. Plaintiff has answered the appeal seeking an increase.

The sole issue on appeal is whether the award of general damages was excessive.

The facts of the case relating to the occurrence of the intersectional collision are set forth in the companion case of McGuire v. Honeycutt, et al., supra.

The record reveals the following:

Mrs. Honeycutt was a 58 year old widow at the time of the accident. Mrs. Honey-cutt testified at trial that immediately after the accident her knees, ankles and arms were hurting. Plaintiff was taken by her son-in-law to Rapides General Hospital shortly after the accident. The hospital emergency room report in evidence reflects that plaintiff sustained abrasions to both knees, contusions on the left arm and left ribs, strained neck muscles and that the neck was tender in the mid — cervical region. Plaintiff was given an injection, apparently to relieve pain. X-rays were taken. Plaintiff was given a neck brace to wear. She was given some prescriptions and some medication.

Plaintiff stated that on the day following the accident, most of her body was in pain, but especially in her wrist, both legs, and ankle, her neck, back, shoulders and head. For the first week after the accident, she spent most of her time in bed. Plaintiff missed one week of work immediately following the accident.

For approximately one month, Mrs. Ho-neycutt wore a neck brace. During this period, Mrs. Honeycutt stated that she continued to experience pain. She testified that she was unable to comb her hair, do her housework, cook or drive. Plaintiff explained that she is reluctant to go to physicians. Her pain became so intense that she finally went to her personal physician, Dr. Hubert Prevost, for the first time approximately two months after the accident.

Plaintiff testified that she was able to return to work about a week after the accident, but for some time she was unable to fully perform her duties. She missed work occasionally due to her pain. She stated that she tired easily due to her neck and shoulders.

Plaintiff stated that between the first month following the accident and the time of trial (November 6, 1979), she was still experiencing pain in her neck and shoulders and she continued to have headaches. The pain is constant in her back and shoulders, but not constant in intensity. She stated that she takes medication (muscle relaxants) for the pain. Plaintiff stated that her ankle is still weak and that occasionally it would “give,” causing her to stumble. She testified that she is unable to take care of her garden as she had done prior to the accident.

Dr. Hubert Prevost, a general surgeon who had been plaintiff’s physician for some time, examined plaintiff on January 3,1979. He testified that she gave him a history of having been in an automobile accident in November 1978. She informed Dr. Prevost that she was still having discomfort in the shoulders and that she was still having headaches. Dr. Prevost’s examination revealed tenderness in the trapezii muscles (the big neck muscles and shoulder muscles behind the neck). Dr. Prevost’s diagnosis was that plaintiff was suffering from chronic muscle sprain, which results from the overstretching of muscles when they are tense. Dr. Prevost stated the injury diagnosed is consistent with the occurrence of the automobile accident.

According to Dr. Prevost, such a sprain is very uncomfortable. He prescribed analgesic medication containing a muscle relaxant. He also prescribed an anti-inflammatory agent due to the chronic nature of the sprain. The plaintiff was instructed to use heat and to perform an exercise for the neck to strengthen the muscles and to increase her comfort in her neck. He stated that exercise would be painful in the beginning.

Dr. Prevost again examined plaintiff in August 1979. Plaintiff still had considerable discomfort at times. She still had tenderness over the lower cervical vertebra. She did, however, have normal motion of the neck. Dr. Prevost felt she still had the stress problem from the muscle strain.

Dr. Prevost felt at that time that plaintiff would probably continue to have trouble at intervals, particularly with relation to fatigue. According to Dr. Prevost there is a lot of fatigue under emotional stress and that conditions like plaintiff’s tend to flare up.

According to Dr. Prevost, usually such conditions, with the use of exercise, analgesics and heat, when flareups occur, will clear up over various lengths of time. During this time pain can be severe enough to require rest and medication for pain. He also stated that with the tension and pain in the muscle, one usually gets a headache.

Mrs. Verna Shea, a close friend of plaintiff’s, testified that she saw Mrs. Honeycutt the day after the accident. According to Mrs. Shea, plaintiff’s left arm was bruised and swollen. She also stated that both of plaintiff’s knees and one of her ankles were swollen. Plaintiff appeared to be unable to lift her injured arm. She was unable to do housework or cooking for approximately one month following the accident. She was also unable to drive during this period and was dependent upon her daughter and Mrs. Shea for transportation. Mrs. Shea testified that for some six months following the accident (until Mrs. Shea moved away), plaintiff had frequent headaches, tired easily and was depressed. Plaintiff was unable to maintain a garden as she had prior to the accident. Mrs. Shea testified that up until she moved, though plaintiff had improved in her condition, she had not fully recovered.

Defendants argue that the award of $8,500.00 in general damages is excessive and should be reduced to not more than $5,000.00. We disagree.

Under the guidelines established by the Supreme Court, we cannot say that the trial judge abused his much discretion. We may not, under these guidelines, look to prior awards but only to the individual circumstances of the present case. Reck v. Stevens, 373 So.2d 498 (La.1979).

We cannot say under the facts and circumstances of this particular case that the award for general damages is a clear abuse of the trial court’s “much discretion.’’ Likewise, we reject the plaintiff’s request by her answer for an increase.

For the reasons assigned, the judgment of the trial court is affirmed. Defendants are assessed with costs of this appeal.

AFFIRMED.

      . The physician who saw plaintiff in the emergency room did not testify.


author: GARRISON, Judge. BARRY, Judge,

text:
    Brian EASTWOLD, President of/and the Public Employees Association of New Orleans, Inc. v. Marcel GARSAUD, Jr., Chairman, and the City Civil Service Commission for the City of New Orleans.
    No. 11096.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    Rehearing Denied Sept. 15, 1980.

      Clyde P. Martin, Jr., New Orleans, for plaintiffs-appellants.
    Many, Lo Coco & Dwyer, Ralph D. Dwyer, New Orleans, for defendants-appel-lees.
    Before BOUTALL, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court denying a preliminary injunction and declaratory judgment against the Civil Service Commission for the City of New Orleans.0 Petitioners Brian Eastwold as President of/and the Public Employees Association of New Orleans, Inc. brought this action to compel the Commission to comply with the then effective open meeting or sunshine laws, R.S. 42:1 through 42:9 inclusive. The court found that the Commission was not covered under the sunshine laws then in effect, denying the relief prayed for. From that judgment, which we now affirm, petitioners appeal.

The real issue remaining before this court is the question of an award of attorney’s fees and court costs should it be found that the trial court erred in its judgment below.

Under the then effective R.S. 42:10(B) a successful plaintiff was to be awarded fees and costs under the mandatory provision below:

“B. Any citizen residing within the governmental subdivision served by the public body who is denied the rights conferred by R.S. 42:4.1 through R.S. 42:9 may commence a suit in a court of competent jurisdiction for the parish or city in which the public body ordinarily meets for the purpose of requiring compliance with or preventing violations of or to determine the applicability of any provision of R.S. 42:4.1 through R.S. 42:9 to the discussions or decisions of the public body. The court shall order payment of court costs and attorney fees to a successful plaintiff in a suit. If the plaintiff is unsuccessful, he may be ordered to pay reasonable attorney fees as well as court costs if the court determines that the suit was of a frivolous nature with no substantial justification.” (emphasis added)

Thus the question of whether appellant should be awarded fees and costs is directly dependent upon this court’s review of the trial court’s judgment.

The trial judge provided extensive reasons for judgment including the following:

“A constitutionally established commission, such as The City Civil Service Commission for the City of New Orleans is not one of the ‘governing bodies’ or ‘boards’ referred to in Title 42:5 of the Louisiana Revised Statutes.
“The function of the City Civil Service Commission for the City of New Orleans is not to ‘receive or expend tax funds.’ “The Statute, R.S. 42:1 defines a ‘commission’ as a ‘Public Office.’
“R.S. 42.5 [42:5] is the section which provides for ‘Meetings of governing bodies and boards to be open to the public.’ The terms ‘Public Office’ or ‘Commission’ are not mentioned in Section R.S. 42:5.
“The provisions of R.S. 42:4.1 through 42:10 are vague. R.S. 42:4.1 reads as follows:
‘It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of R.S. 42:4.1 through R.S. 4:10 [42:10] shall be construed liberally-’
“R.S. 42:9 contains criminal penalties, therefore the Court cannot construe the provisions of the Statutes liberally. On the contrary, the Statutes are to be strictly construed.
“The issuance of preliminary injunction is discretionary with the Court. Further, the trial Court has wide discretion in giving or receiving declaratory relief.
“The issuance of a preliminary injunction and the request that a declaratory judgment be rendered declaring that the City Civil Service Commission is subject to the ‘open meeting laws of the State of Louisiana, L.R.S. 42:1 through L.R.S. 42:9’ will be denied.”

We agree with the appellant that the trial judge erred in applying a strict interpretation of the statutes in the face of a legislative mandate that they be liberally construed. Even under a liberal construction, however, the trial judge would have obtained the same results. R.S. 42:5 as then in effect, reads as follows:

“For the purpose of R.S. 42:4.1 through R.S. 42:10 ‘meeting’ means the official convening of town and city councils, police juries and other governing bodies; school boards and boards of levee and port commissioners; boards of publicly operated utilities; and all state, parish, or municipal boards or authorities with policy making or administrative functions which receive or expend tax funds, the legislature specifically exempted, to discuss or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power. Such meetings shall be open to the public.” (emphasis added)

While the City Service Commission does submit a proposed budget, it does not have the power to adopt, enforce, or otherwise implement that budget, which power is reserved to the City Council of New Orleans. The City Civil Service Commission does not expend tax funds; it is the City Council which expends tax funds.

Neither does the City Civil Service Commission receive tax funds. Appellants point to the per diem amount received by Commission members as a receipt of tax funds. We cannot, solely on the basis of so insignificant an amount, hold in good conscience that a per diem constitutes the type of tax receipt and disbursements contemplated under the statute, even if given a radically liberal construction.

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

AFFIRMED.

BARRY, J., dissents with written reasons.

BARRY, Judge,

dissents with written reasons.

I feel the majority erred in its interpretation of former R.S. 42:5. This statute does not require the City Civil Service Commission, as one of its functions, to “receive or expend tax funds.”

The Civil Service Commission for New Orleans, like numerous other Boards, Commissions, and Authorities, functions via policy making and administrative decisions arrived at by citizen members. Commissioners are paid a nominal per diem and basically undertake their responsibility as a civic-minded endeavor.

The open meetings law is intended to have the public’s business conducted in public. The very nature of the law can be burdensome and time consuming. However, seeking loopholes to avoid compliance has the effect of rendering the law meaningless. If the legislature intended to exclude this Commission from the law it would have done so.

The Civil Service Commission is a “board or governing body” as defined in the statute. The Commission certainly must “receive tax funds” in order to pay staff salaries, office expenses, and per diem allowances. Though the amount of tax funds received may be nominal when compared to other public entities, the statute does not specify any minimum amount. To require that tax monies received must be more than “insignificant” is to read something into the law which is not there.

Further, the record discloses that the Civil Service Commission makes policy, such as the adoption of a pay plan for city employees wherein the Commission had exclusive jurisdiction over certain areas.

The substantive issue involved here is moot as the laws have been amended to leave no doubt that the Civil Service Commission falls under the provisions of our open meeting laws. However, because the Commission did violate the “sunshine laws” by conducting business in private, plaintiff should be awarded reasonable attorney’s fees and costs as prayed for.

      . We note the statutes in question were amended by Act 681 of 1979 so as to provide that the Commission as well as various other bodies are now covered by the open meeting laws. Counsel for the Commission assures this court that the Commission is now in compliance with the amended sunshine laws.


author: GARRISON, Judge.

text:
    Clarence ARENA v. J. A. JONES CONSTRUCTION COMPANY et al.
    No. 11298.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    Rehearing Denied Sept. 15, 1980.

      Gordon Hackman, Boutte, for plaintiff-appellant.
    Richard L. Edrington, Carville & Edring-ton, LaPlace, for defendants-appellees.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing both plaintiff’s workmen’s compensation suit as premature and plaintiff’s tort suit under R.S. 23:1032 on the basis of plaintiff’s statement in his deposition that plaintiff knew of no intentional acts committed by any of the defendants which were causative of his accident. From that judgment which we now affirm in part and reverse in part, plaintiff appealed.

Our first consideration is the dismissal of plaintiff’s tort action. The statements on which the court relied are found in plaintiff’s deposition as follows:

“Q. Now, your lawyer has filed a lawsuit in which he not only alleges that you have a claim for workmen’s compensation, but he alleges that there are certain other persons who were employed on this job who were responsible for your injury, and that their acts were intentional. Do you know of anything that Mr. Cassimus or Greer did to be considered to be of an intentional nature, that they meant what happened to you to happen to you?
A: No, not offhand. (Depo. pp. 23-24).
******
“Q: My question to you is: There have been allegations that certain acts that allegedly resulted in your injury, are a result of intent of certain parties; particularly Mr. Cassimus, Miguel, as you call him, and Billy Greer. Do you know of any intent upon their part?
A: I don’t really know how to answer that. (Depo. pp. 24-25).
******
“Q: So, the only thing that you can indicate to me, and I’m not asking you to be a lawyer or give me a legal conclusion, but I’m asking you, as a layman, the only thing you can indicate to me that has any relationship to the possibility of intent was maybe Miguel and/or Billy were mad at you?
A: Probably, there’s a probability.
Q: That they were angry?
A: There’s a probability.” (Depo. p. 28).

The phrase “intentional act” is a term of art and the finding that a party committed an act which is an “intentional act” under R.S. 23:1032 is a conclusion of law.

The plaintiff is not competent to offer opinion evidence of a legal conclusion as he neither was nor could be qualified as an expert. R.S. 15:466; R.S. 15:464; R.S. 15:463. Accordingly, the district court erroneously dismissed plaintiff’s case on the basis of inadmissible testimony.

Turning now to the issue of prematurity of the workmen’s compensation suit, we note that the district court made the following finding:

“. . . plaintiff, in deposition, testified that he has been and is still receiving compensation benefits. There is nothing to show that any proper expenses have not been paid . . . ”

During his deposition, plaintiff stated that he was still receiving compensation and that his compensation payments had not been terminated. The plaintiff also indicated that he had not been reimbursed for local travel expenses, however, the deposition of John Landwehr, the claims adjuster on the case, indicates that plaintiff has not requested payment for travel expenses. Accordingly, we conclude that the exception of prematurity was properly maintained.

For the reasons discussed, that portion of the judgment dismissing plaintiff’s workmen’s compensation suit is affirmed. The portion of the judgment dismissing plaintiff’s suit in tort is reversed with directions that the case be remanded for further proceedings.

AFFIRMED IN PART, REVERSED IN PART.

CHEHARDY, Judge, concurring.

I concur in the result.

      . See Weir v. Commissioner of Internal Revenue, 109 F.2d 996, 997 (3rd Cir., 1940) for a discussion of the various meanings of the word “intent.”


text:
    Edward J. LAGRAIZE v. NEW ORLEANS ARMATURE WORKS et al.
    No. 11461.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    Rehearing Denied Sept. 15, 1980.
    Weigand & Siegrist, Joseph J. Weigand, Jr., Houma, for defendants-appellants.

      Lambert, Nowalsky & Lambert, John D. Lambert, Jr., New Orleans, for plaintiff-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, granting to petitioner workmen’s compensation benefits subject to. a credit for wages, $5,882.08 medical expenses and future medical expenses to $25,000.00, inclusive. From that judgment, which we affirm, defendant appealed alleging that the trial court erred in finding that wages were paid to plaintiff in lieu of compensation.

On January 6,1975, plaintiff, while in the course and scope of his employment, was injured in a motor vehicle accident. Plaintiff was out of work for several days, but returned to his former employment as a supervisor with the defendant. The trial court found that although plaintiff retained the same title, his capacity to perform the work was diminished. In March of 1975 the insurer paid one of plaintiff’s medical bills. On December 20,1975 a personal injury suit was filed. Argonaut, the insurer of the defendant, intervened in this suit on September 22, 1976. Throughout this time, plaintiff was undergoing treatment by Dr. Kerr. In June of 1977, plaintiff was referred to Dr. Pisarello who discovered that plaintiff’s injury was a lumbar disc herniation. In August of 1977, plaintiff underwent disc surgery. On July 1, 1977 plaintiff brought this action for workmen’s compensation benefits. Defendant filed an exception of preemption which was granted, dismissing plaintiff’s case. On December 22, 1977 the trial court set aside its prior judgment and granted plaintiff a new trial. Pursuant thereto, trial on the merits was held on October 17,1978 and judgment was rendered in plaintiff’s favor.

The critical issue of this case, as recognized by the district court, is the question of prescription. The district court applied R.S. 23:1209 as amended by Act No. 583 § 7, Acts of 1975, retroactively. As amended, the statute reads, in part as follows:

“. . . Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment . .”

We agree with the trial court’s application of the statute, and incorporate his reasons for judgment as our own:

“. . . our jurisprudence is to the effect that prescriptive statutes may be applied to causes of action arising prior to their enactment if the legislature so intends. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950). The general rule is that when a prescriptive period is changed, the time which preceded the change of legislation or altering the period of prescription should be reckoned according to the ancient law, and that which followed according to the new law. Henson v. St. Paul Fire and Marine Ins. Co., 354 So.2d 612 (La.App. 1st Cir. 1978).
“The compensation statute is social legislation. The jurisprudence clearly established the principle that it is to be liberally interpreted in favor of the injured worker. The evidence clearly preponderates to establish that if the medical doctors had overly extended the period of time during which they conservatively tried to treat the plaintiff, then major disc surgery would have been performed and the compensation carrier would clearly be liable in these premises. Further, that evidence shows that the plaintiff was not, after the accident, the mechanic he was before. Some of the work he performed before the accident he does not do at all now. (Blower work). And some of the other work he did before he is greatly limited (in lifting objects, pulling on wrenches, stooping, etc.). The Court concludes that not all but at least some of the wages paid to him and being paid to him are in lieu of compensation. Therefore, prescription has been interrupted for workmen’s compensation purposes ...”

Our review of the evidence presented also reveals that the plaintiff was not performing physical work which he was required to do as part of his job prior to the accident. Accordingly, we cannot conclude that the district court was manifestly erroneous in this finding of fact. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). We additionally note that the results of the trial court are also mandated by the application of R.S. 9:5801. See National Surety Corp. v. Standard Accident Insur. Co., 247 La. 905,175 So.2d 263 (1965); Taylor v. Zetz 7-Up Bottling Co., 384 So.2d 811 (La.App. 4th Cir. 1980).

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

AFFIRMED.


author: CHEHARDY, Judge.

text:
    STATE of Louisiana In the Interest of Tod REDDICKS.
    No. 11541.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    Writ Granted Sept. 26, 1980.
    Otha Curtis Nelson, Sr., William G. Davis, Staff Attys., D. H. H. R. Office of General Counsel, Baton Rouge, for relator.
    Samuel B. Stephens, Gretna, and William C. Credo, III, Gretna, for respondent.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

The crucial issue in this case is identical to that decided by this court in In the Interest of Robin Sapia, 387 So.2d 41, with the exception of the fact that in the present case Juvenile Judge Tom McGee issued an ex parte order placing the minor Tod Reddicks in Brentwood Hospital in Shreveport, in absence of specific assurance by the State of Louisiana that the costs of such private institutional care could be borne by the State.

LSA-R.S. 13:1580.2 states:

“The Department of Health and Human Resources shall, whenever it has been assigned custody of a child by judicial order, file a written report to the court on the status of the child six months after the initial placement of the child and every twelve months thereafter. This report shall be filed with the court which placed the child in the custody of the Department of Health and Human Resources. The court shall consider such reports and may hold hearings on the status of the child for the purpose of determining whether the child should remain in the care and custody of the Department of Health and Human Resources, should be returned to the parent, tutor, guardian, or relative, or should receive some alternative program of care, support and supervision.” (Emphasis ours.)

We feel that the above statute coupled with LSA-C.J.P. arts. 85 and 86 clearly gives the ultimate authority for deciding the placement of children adjudged to be in need of supervision to the juvenile courts. Furthermore, we can find no statutory limitation on the court’s authority to act ex parte in determining the proper placement for Tod Reddicks.

For the above reasons and the reasons assigned by this court in Sapia, supra, the order of the juvenile court placing Tod Red-dicks in Brentwood Hospital in Shreveport; ordering that the State of Louisiana through the Office of Human Development, Department of Human Resources, assume financial responsibility for his treatment at Brentwood; and instructing the State of Louisiana, through the Office of Human Development, to provide the court with continuing reports of the minor’s treatment, an outline for the suggested plan of treatment, and an analysis of locations where this plan for treatment can be best performed is affirmed in all respects.

AFFIRMED.

      . In Sapia, several officials of the Department of Health and Human Resources, Office of Human Development, were subpoenaed to testify, as was Charles E. Roemer, Commissioner of Administration, State of Louisiana, who orally stipulated that the Louisiana Department of Health and Human Resources and its subsidiary agency, the Office of Human Development, had sufficient funds and authority for their expenditure to place Robin Sapia in a facility most appropriate for the child’s needs. The court subsequently ordered the Department of Health and Human Resources to pay for the expenses incurred for the housing, care and treatment of Robin in Coliseum House, a private institution.


author: FORET, Judge.

text:
    James DORRY, Plaintiff-Appellant, v. Goldman LAFLEUR, Defendant-Appellee.
    No. 7660.
    Court of Appeal of Louisiana, Third Circuit.
    July 31, 1980.
    Rehearing Denied Sept. 19, 1980.

      Steven Broussard, Lake Charles, for plaintiff-appellant.
    Rogers & St. Romain, Jack Rogers and Phillip W. St. Romain, Lake Charles, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   FORET, Judge.

Plaintiff, James Dorry, brought suit against defendant, Goldman Lafleur, attempting to recover damages for personal injuries he sustained when he slipped and fell while roller skating at defendant’s roller skating rink. The trial court, in ruling in favor of the defendant and dismissing plaintiff’s suit at his costs and with prejudice, found that the plaintiff had assumed the risk and was contributorily negligent.

The issues presented are:

(1) Is the defendant liable under the theory of strict liability as set forth in LSA-C.C. Article 2322[];
(2) Is assumption of the risk a defense to a suit based on LSA-C.C. Article 2322 and did the plaintiff assume the risk;
(3) Was the defense of contributory negligence properly raised by defendant.

FACTS

On January 19,1979, James Dorry slipped and fell while roller skating at Lafleur’s Roller Rink in Sulphur, Louisiana. Dorry’s fall was caused by a puddle of water on the rink floor. This puddle, like two others present on the rink floor on the night of Dorry’s accident, resulted from a leak in the roof of the building. As a result of his fall, plaintiff suffered a broken right elbow, bruised left wrist and a bruised left arm.

OWNER’S LIABILITY

The owner’s fault under LSA-C.C. Article 2322 is founded upon a breach of his obligation to maintain his building in good repair so as to avoid the creation of undue risks of injury to others. Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1978).

Operators of recreational facilities are not the insurers of the safety of their patrons, but must conduct their operations in such a way as to not expose the patron to an unreasonable risk of harm, considering the nature of the facilities provided. Alfonso v. Market Facilities of Houston, Inc., 356 So.2d 86 (La.App. 1 Cir. 1978), writ denied, 357 So.2d 1169 (La.1978); Spiers v. Lake Shore Enterprises, Inc., 210 So.2d 901 (La.App. 1 Cir. 1968).

An obvious undue risk of injury was created by the water which had accumulated on the rink floor. The ruin which created the risk was a leak in the roof, which leak should have been repaired by Lafleur. Lafleur could have caused a halt to the skating once he was apprised of the dangerous condition created by the water on the floor. These things were not done, however. He is therefore liable to anyone injured on the premises as a result of the ruin in his building or as a result of a breach of the duty which operators of amusement facilities owe to their patrons, unless, of course, he successfully makes out a defense.

DEFENSES

A. Assumption of Risk.

The dispositive issue herein concerns the viability of assumption of the risk doctrine as a defense to strict liability under Article 2322, and whether or- not plaintiff knowingly assumed the risk of injuring himself in the manner in which he did.

In order for a plaintiff to assume risk, he must knowingly and voluntarily encounter the risk which caused him harm; plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger which may result from that risk. Prestenbach v. Sentry Insurance Company, 340 So.2d 1331 (La.1976); Mclnnis v. Fireman’s Fund Insurance Company, 322 So.2d 155 (La.1975).

In a recent case, Bass v. Aetna Insurance Co., 370 So.2d 511 (La.1979), the Supreme Court discussed in some detail the doctrine of assumption of risk. The necessary ingredient for one to assume a risk and then have his recovery barred is knowledge. One must actually, subjectively comprehend the risk or it must be something that one knows or should have known.

In Prestenbach v. Sentry Insurance Company, supra, at page 1335, the Supreme Court further discussed the knowledge element of the defense:

“As we stated in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971), ‘the determination of whether a plaintiff has assumed a risk is made by subjective inquiry . . . .’ See also McInnis v. Firemen’s Fund Ins. Co., 322 So.2d 155 (La.1975); Prosser on Torts, pp. 447-450 (4th ed., 1971).
“In order for a plaintiff to assume a risk, he must knowingly and voluntarily counter the risk which causes his injury. McInnis v. Firemen’s Fund Ins. Co., cited above. ‘Knowledge’ is the mainstay of this defense, and it must be proved by a preponderance of the evidence.
“Recovery is denied if the plaintiff knew or should have known of the risk involved. The defendant argues, and the court of appeal also held, that Presten-bach should have known of the driver’s condition, simply since he had spent most of the evening with him.
“However, for purposes of a knowing assumption of risk, we impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when he actually makes those observations and, from them, should reasonably have known that a risk was involved.”

According to plaintiff’s testimony, puddles of water began to form on the rink floor approximately one hour before he fell. Plaintiff stated that he knew the water was there and had to skate around it. Although he testified that he did not see the puddle which ultimately caused his fall, Dorry knew or should have known that there was a good possibility that water would be present in areas other than the area which he avoided while skating. We find that the trial court was correct in concluding that plaintiff knowingly assumed the risk of injuring himself.

The owner or guardian of a building who is responsible for the harm caused thereby may exculpate himself by showing that the harm was caused by the fault of the victim, by the fault of a third person, or an irresistible force. Olsen v. Shell Oil Company, supra; Loescher v. Parr, 324 So.2d 441 (La.1975). Since the injuries plaintiff sustained were due at least in part from his own fault, recovery was properly denied.

B. Contributory Negligence.

Because we have concluded that plaintiff must be denied recovery for the reason that he voluntarily assumed the risk of injuring himself in the manner in which he did, we need not consider whether or not the defense of contributory negligence is properly raised by the defendant.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against the plaintiff-appellant, James Dor-ry.,

AFFIRMED.

      . Article 2322:
      “Damage caused by ruin of building
      The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”


text:
    HOUSING AUTHORITY OF CITY OF ABBEVILLE, Plaintiff-Appellee, v. Raymond HEBERT, Defendant-Appellant.
    No. 7739.
    Court of Appeal of Louisiana, Third Circuit.
    July 31, 1980.
    Rehearing Denied Sept. 19, 1980.

      Louis G. Garrot, III, Abbeville, for defendant-appellant.
    Carrol L. Spell, Jr., Abbeville, for plaintiff-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   FORET, Judge.

This is an eviction case. Defendant, Raymond Hebert, appeals from a judgment of the City Court of Abbeville, Louisiana, ordering defendant to remove all animals from the leased premises within twenty-four hours of the service of said judgment, and in default thereof, to vacate the premises.

The issues presented are:

(1) Had plaintiff acquiesced in the violation of the lease, and
(2) Did plaintiff abuse the right granted it under the lease.

MERITS

On August 7, 1979, a notice of eviction was delivered to defendant alleging that he had breached applicable provisions of the lease by:

(A) keeping pets, more specifically, dogs;
(B) failing to keep the premises in a clean and sanitary condition, and failing to maintain the yard in a neat and orderly manner; and
(C) engaging in practices that endanger and disturb other project tenants.
Sections 1(e) and 1(f) of the lease provide:
U* * *
(e) To comply with all City Ordinances to keep the premises in clean and sanitary condition; to maintain the yard in the front and rear of his dwelling in neat and orderly manner; not to use the premises for any illegal or immoral purposes or for any other purpose than herein contemplated; not to make any repairs or alterations without the written consent of the Management; not to place anything in the premises or use the premises in any manner which might in any respect forfeit the insurance of the premises or increase the rate thereof; not to display any signs whatsoever, not to keep pets of any kind. Not to use tacks, nails or screws or other fasteners in any part of the premises except in a manner prescribed by the Management; not to install window fans, air conditioners or aerials without a permit from the Manager and to notify the Management promptly of the need of any repairs to the premises.
(f) To follow all rules or regulations prescribed by the Management including particularly, but not limited to, those contained in the Tenant Handbook concerning the use and care of the premises and of any common or community space in the “Development” including stair halls, walks, drives, playgrounds, community rooms, and to follow all rules and regulations with reference to your obligations as a tenant in relation to the community as a whole; you and all members of your family are prohibited from committing any form of vandalism and also are prohibited from any practices that will endanger or disturb other project residents, such as playing baseball and other dangerous games in the project courts, etc. * *

Ground “B”, failing to keep the premises clean, was abandoned by plaintiff. Ground “C” is based upon activities of the defendant’s minor son. Allegedly the boy had fights with other children thereby “engaging in practices that endanger and disturb other project tenants”. After a review of the lease, we conclude, as did the trial court, that this conduct is not the type of prohibited activity contemplated by the terms thereof.

This leaves us addressing only “A”, the keeping of pets on the premises.

It is undisputed that defendant kept a pet on the leased premises for a period in excess of three years. The record shows that pets were kept by several residents of the housing project, and that this violation of the lease was seemingly condoned by virtue of the inaction of the Abbeville Housing Authority for over twenty years. On May 4, 1979, however, a notice was circulated to all tenants, including defendant, notifying them that the keeping of pets on the project premises would no longer be allowed. This notice gave the occupants owning pets thirty days to relocate or dispose of same. Defendant failed to comply with the notice and eviction proceedings were instituted, whereupon the trial court rendered judgment in favor of plaintiff, stating:

“Defendants shall remove all animals from the premises within 24 hours or in default thereof the Marshall shall have them vacate the premises. I therefore, leave the decision of whether or not the defendant will have adequate housing for his family in his control.”

Defendant argues that the acquiescence by the Housing Authority in allowing the keeping of pets on the project premises over a number of years would tend to bar them from enforcing a written prohibition in the lease. We tend to agree with this argument, absent any other extenuating circumstances.

Counsel for defendant relies on the case of Lee Lumber Company, Ltd. v. International Paper Company, 345 So.2d 212 (La.App. 3 Cir. 1977), certiorari denied, 347 So.2d 503 (La.1977), as supporting his theory that plaintiff is estopped from enforcing a provision of a lease where the violation of that provision was sought to be strictly enforced when the lessor had acquiesced in said violation. In Lee, however, there had been no notice to the lessee that the violated provision would henceforth be strictly enforced.

There is a presumption that each party to every contract has agreed to confer on the other the right to resort to the judicial machinery of the state in order to enforce the performance of the agreement unless the contrary be expressed or implied. LSA-C.C. Article 1799. Although plaintiff may have tacitly approved of the keeping of pets in the project, this approval cannot be construed, under the facts presented here, to have vitiated the right granted by Civil Code Article 1799.

Vital to the formation of a contract or to the modification thereof is the concurrence of the consent of the parties which consent must be freely given. LSA-C.C. Articles 1766, 1779(2), 1798, and 1800. There must be a free and deliberate exercise of the will together with the consent of the parties, which consent must be expressed or implied. LSA-C.C. Articles 1780, 1811, 1819. Consent may be deemed implied:

. . when it is manifested by actions, even by silence or inaction, in cases in which they can from the circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent.”

LSA-C.C. Article 1811.

This consent, however, is implied only in cases which are particularly determined by law. LSA-C.C. Article 1781. The silence of an offeree alone, therefore, should not, in principle, be considered as involving acceptance on his part. His consent can result from his silence or inaction, however, when combined with surrounding circumstances imply or indicate his consent unequivocably. 1 Civil Law Translations-Aubry & Rau, Obligations, § 343, pg. 307 (1965); Illinois Central Gulf Railroad Company v. International Harvester Company, 368 So.2d 1009 (La.1979). Where the law does not expressly create a legal presumption of consent from certain facts, the determination of the existence of consent is left to the discretion of the judge. LSA-C.C. Article 1818.

Our Civil Code and statutes do not provide that any legal presumption arises from a lessor’s permitting a lessee to keep pets in violation of a lease by virtue of the former’s silence. Therefore, the trial judge was correct in finding that plaintiff could properly enforce the term of the lease treating the keeping of pets inasmuch as the silence or inaction of the Housing Authority could not be construed as condoning this practice.

Significant in our conclusion is the fact that defendant was given notice thirty days prior to the date that the lease provision would begin being strictly enforced.

An analogous situation arises when a lessor continually accepts the late payment of rent. There is a well established rule in our jurisprudence that when a lessor-owner customarily accepts late rental payments, such “custom” has the effect of altering the lease contract with respect to punctuality of rent payments. Himbola Manor Apartments v. Allen, 315 So.2d 790 (La.App. 3 Cir. 1975); Briede v. Babst, 131 La. 159, 59 So. 106 (1912); Standard Brewing Co. v. Anderson, 121 La. 935, 46 So. 926 (1908); Rex Credit Co. v. Kirsch, 4 So.2d 797 (La.App. Orl. Cir. 1941).

This rule is based on the equitable consideration that to allow the lessor-owner to accept late payments thereby “misleading or lulling the tenant into a false sense of security” and then arbitrarily demanding timely payment of the rent would be unfair.

This rule, however, does not apply to a situation where a lessor-owner notifies the lessee of his intention to strictly enforce a contract well in advance of the time that the enforcement is to take place. In this case, Hebert was given thirty days, and an additional twenty-four hours after the service of the judgment, within which to remove the pet. We think that the defendant had ample opportunity to remedy the situation.

Defendant’s counsel asserts that the lessor was guilty of abusing the rights it held pursuant to the lease.

The doctrine of abuse of rights has gone relatively unused in Louisiana. In an excellent treatment of this legal principle, Professor Cueto-Rua observes:

“* * * The doctrine of abuse of rights is in the making, it is ‘in fieri.’ It is an important juridical-political element of modern civil law doctrine. Although there are still pending important questions concerning its scope as well as criteria for the definition of abusive use of rights, this we may safely say now: it will be difficult for a holder of an individual right, in most of the civil law jurisdictions today, to exercise such right to the detriment of other parties, just for the sheer sake of exercising it. At least a ‘serious and legitimate interest’ will have to be shown in order to justify the exercise of its right.”

In Illinois Central Gulf Railroad Company v. International Harvester Company, supra, our Supreme Court dealt extensively with this doctrine, stating:

“This Court expressly recognized the doctrine of abuse of rights in Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1977), and has employed a similar analysis in earlier decisions. Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 So. 206 (1919); Onorato v. Maestri, 173 La. 375, 137 So. 67 (1931).
Nevertheless, the doctrine of abuse of rights has been invoked sparingly in Louisiana and we must look to other civilian jurisdictions for its full articulation. The doctrine is the product of a French jurisprudential and doctrinal movement which has expanded into most of the civil law jurisdictions “to the point, of becoming a widely accepted principle of the Civil Law.” Cueto-Rua, Abuse of Rights, 35 La.L.Rev. 965, 967 (1975). See, generally, Catala and Weir, Delict and Torts: A Study in Parallel (Part II), 38 Tul.L.Rev. 221 (1964); Herman, Classical Social Theories and the Doctrine of Abuse of Right, 37 La.L.Rev. 747 (1977); Maynard, Abuse of Rights in France and Quebec, 34 La.L.Rev. 993 (1974); Comment, 7 Tul.L.Rev. 426 (1933). The main body of French case law on abuse of rights is based on article 1382 of the French Civil Code, which is very similar in wording to article 2315 of the Louisiana Civil Code. In its origin, the abuse of rights doctrine was applied to prevent the holder of rights or powers from exercising those rights exclusively for the purpose of harming another, but today most courts in civil law jurisdictions will find an act abusive if the predominant motive for it was to cause harm. See, Cueto-Rua, supra, at 990-91; Catala and Weir, supra, at 222-26. The doctrine has been applied where an intent to harm was not proven, if it was shown that there was no serious and legitimate interest in the exercise of the right worthy of judicial protection. See, Cueto-Rua, supra, at 992-96; Catala and Weir, supra, at 230-34. Protection or enforcement of a right has been denied when the exercise of the right is against moral rules, good faith or elementary fairness. See, Cueto-Rua, supra, at 996-99. Another criteria, espoused originally by the French scholar Louis Josserand, would require an examination of the purpose for which the right was granted. If the holder of the right exercised the right for a purpose other than that for which the right was granted, then he may have abused the right. See, Cueto-Rua, supra, at 1000-1003; Catala and Weir, supra, at 227-29; Herman, supra, at 754-55.”

Thus, the main criteria for applying the abuse of rights doctrine are:

(1) The exercising of rights exclusively for the purpose of harming another or if the predominant motive is to cause harm;
(2) The non-existence of a serious and legitimate interest that is worthy of judicial protection;
(3) The right has been used in violation of moral rules, good faith, or elementary fairness, or
(4) The holder of the right exercised the right for a purpose other than for which the right was granted.

Our review of the conduct of all parties in light of the foregoing jurisprudence and learned writings reveals nothing which would sanction the application of the doctrine of abuse of rights.

Therefore, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against appellant.

AFFIRMED.

      . Cueto-Rua, Abuse of Rights, 35 La.Law Rev. 965 (1975).