author: LOTTINGER, Judge. SHORTESS, Judge,

text:
    Theresa WILLIAMS, Individually and as Natural Tutrix of Her Minor Child, Cynthia McGee v. PARISH OF EAST BATON ROUGE, Parish Government of East Baton Rouge, the Department of Public Works, Gary D. Plain and XYZ Insurance Company.
    No. 14995.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Walter C. Dumas, Baton Rouge, for plaintiff-appellant Theresa Williams, Individually and as Natural Tutrix of her Minor Child, Cynthia McGee.
    Gary D. Plains, in pro. per.
    Frank J. Gremillion, Asst. Parish Atty., Baton Rouge, for defendant-appellee Parish of East Baton Rouge, Parish Government of East Baton Rouge, the Department of Public Works.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is an action ex delicto by Theresa Williams, individually and as natural tutrix of the minor, Cynthia McGee, against the Parish of East Baton Rouge, the Parish Government of East Baton Rouge, and the Department of Public Works (collectively hereinafter referred to as Parish), and Gary D. Plain for personal injuries received by Cynthia McGee and property damages. From a judgment in favor of plaintiff against Gary D. Plain, and dismissing plaintiff’s suit against the Parish, plaintiff has appealed.

FACTS

This accident happened between 4:30 and 5:00 p. m. on September 15, 1977, when Cynthia McGee (13 years of age at the time of the accident) was riding her bicycle near the edge of Hyacinth Avenue in Baton Rouge, and she was struck head-on by a car driven by the defendant, Gary Plain. The trial judge found that Plain lost control of his vehicle when it hit a water-filled pothole in the street. Cynthia McGee received a cut on her right knee, leaving a permanent disfiguring scar, and a broken right leg.

Plain testified that he was returning to his home at the time of the accident; that he was traveling approximately 25 to 30 miles per hour prior to the accident but had slowed down; that the pothole in question was filled with water and he could not distinguish such as a pothole; that two approaching vehicles prevented him from avoiding the pothole; that as he hit the pothole he lost control of his vehicle and it skidded out of control and struck Cynthia McGee; and that the street was dry except for the pothole.

No signs were present along the street warning drivers of potholes or that the street might be slippery.

The investigating officer testified that the street was wet and muddy, and that defendant’s vehicle traveled approximately 170 feet past the point of impact.

The Parish has a program of checking major streets for potholes, of which Hyacinth is one, but at the time of the accident an overlay program was in progress and the patchwork had been allowed to lag. However, even where potholes are patched, heavy rains and traffic can cause a patch to pop out shortly thereafter.

TRIAL COURT

The trial judge found the water-filled pothole to be a defective condition of the road, but concluded that the accident was caused by the fault of the third party, namely Plain.

ISSUES

Plaintiff contends the trial judge was in error in dismissing the Parish from the suit, and that the amount of the award, $27,-803.80, was inadequate.

I

We are of the opinion that the pothole which existed in the case sub judice did not create an unreasonable risk of harm to others so as to constitute a defective thing under La.Civ.C. Art. 2317. Potholes are known to develop and exist in asphalt surfaced roadways. That a pothole existed at this location, had been repaired, and had redeveloped several times was known to the defendant Gary Plain. Additionally, we conclude that those individuals who, like Plain, lived in the neighborhood of the accident, and who traveled this roadway often should be familiar with the potholes that existed in the road surface.

Additionally, we find no breach of a La.Civ.C. Art. 2315 duty on the part of the Parish. The Parish knew potholes developed, and it had a regular maintenance program to correct them. However, it is clear that even though a pothole may be corrected early in the day, rain and traffic can cause a pothole to redevelop later the same day.

Finally, in assuming arguendo that La.Civ.C. Arts. 2315 and 2317 would be found applicable, we agree with the trial judge that the cause in fact of this accident was the failure of Gary Plain to operate his vehicle at a speed commensurate with the conditions of the road surface, to maintain control of this vehicle, and to keep a proper lookout.

II

Cynthia McGee received a cut on her right knee, leaving a permanent disfiguring scar. She also received a broken leg. She was hospitalized for two months, and after discharge from the hospital she was on crutches for approximately one month. At the time of the accident she was a seventh grade honor student active as a cheerleader and in the athletic program of the school. She can no longer participate in these activities because of her injury and presently avoids wearing shorts because of the permanent scar.

Though we find the award granted by the trial judge to be conservative, same does not so shock our conscience as to require us to modify this award.

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

AFFIRMED.

SHORTESS, Judge,

dissenting.

I respectfully dissent.

The record reveals the following facts: Gary D. Plain was proceeding on Hyacinth Avenue, a two-lane street in Baton Rouge, on the afternoon of September 15, 1977. Cynthia McGee was riding her bike in the opposite direction, near the edge of the roadway, but in the same lane that Plain was traveling. The road was wet in some areas, because it had rained the day before; however, the weather was mild at the time of the accident. The speed limit was 30 or 35 miles per hour. Plain approached a curve in the road, traveling approximately 25 to 30 miles per hour. He noticed water in the street and slowed to approximately 10 to 20 miles per hour. There were vehicles in the opposite lane which prevented him from veering away and avoiding the wet area and Cynthia McGee. The water was covering a pothole. When Plain’s vehicle hit the pothole, he lost control, began sliding, and collided with Cynthia McGee and her bicycle. An ambulance was called to render aid and, upon arrival, it also hit the pothole and then skidded, according to Plain.

The Parish street supervisor, at the time of the accident, admitted that the street was not being inspected regularly at this time, as was the normal procedure, due to an overlay project.

The trial judge found that:

. . . the existence of the pothole and the fact that the pothole filled with water after a rainstorm made that section of the road unreasonably dangerous in normal use. Because of the tendency for water to stand in the hole, motorists could not tell that that section of the roadway was damaged. Therefore, the Parish is responsible for any damage caused by the defective condition of the road.

I agree with this conclusion. However, he also found that Charles Plain was guilty of negligence constituting third party fault, so as to exonerate the Parish from liability under Civil Code Art. 2317. These facts are not highly convincing, as to the negligence of Plain. Moreover, if I assume Plain was negligent in the operation of his vehicle and apply the “but for” test of negligence used in Sinitiere v. Lavergne, 391 So.2d 821 (La. 1980), I can reach only one logical conclusion. If Plain had not hit the pothole, described by the trial court to be a defective condition in this road, this accident and the resulting injuries to Cynthia McGee, would not have happened. The pothole was a substantial factor and I would hold the Parish liable as a joint tortfeasor.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    Pershing J. LATOUR and Roceil A. Latour v. William FRANCIS.
    No. 14997.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Eric M. Ferrouillet, Elie, Ferrouillet & Ferrouillet, New Orleans, for defendant-appellant.
    Sidney A. Marchand, III, Talbot, Sotile, Carmouche, Marchand & Marcello, Donald-sonville, for plaintiffs-appellees.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Pershing J. Latour and Roceil A. Latour (plaintiffs-appellees) filed suit against William Francis (defendant-appellant) seeking a permanent injunction to prevent him from obstructing their use of a certain right-of-way, allegedly owned by them. Defendant filed an Exception of Liberative Prescription, claiming that the right-of-way or servitude had been extinguished by non-usage over a period of ten years. The trial judge granted the injunction and defendant has appealed.

The following facts are undisputed: By act dated October 29, 1957, Delta Mud and Chemical Company, Inc. (plaintiffs’ predecessor in title) acquired from Harvey J. Truxillo and Henry J. Traphagen (defendant’s predecessor in title) a certain tract of land described in the deed as located:

... in the Parish of Ascension, State of Louisiana, and in what is known as Smoke Bend, bounded on the North by the Right of Way of the Texas and pacific (sic) Railroad Company, on the East by other property of the vendors herein, on the West by land now or formerly belonging to Edward Irwin, and on the South by land now or formerly belonging to Cle-bert Oubre (now the property of Jack Hood and Orlan L. Bunn). For title see C.O.B. 57, folio 54, C.O.B. 47, folio 213, and C.O.B. 122, folio 529 et seq of Ascension Parish, Louisiana.

On that same date, Delta Mud also acquired from these vendors a servitude, namely, “a right of way being the right of ingress and egress” through the property retained by Truxillo and Traphagen, situated to the East of the purchased tract. Delta Mud thereafter merged with Chromalloy American Corporation, which then sold the tract, including the right-of-way to plaintiffs, by act dated November 11, 1980.

Truxillo and Traphagen sold the parcel, directly east and adjacent to plaintiffs’ tract, to Willie Francis, Jr., defendant’s father, by act dated May 13, 1963. The deed provided:

This present conveyance is made and accepted subject to a certain right of way agreement between vendors and Delta Mud and Chemical Company, Inc., recorded in C.O.B. 129, folio 98 of Ascension Parish, Louisiana.

The tract was obtained by Florida Richard Francis, wife of Willie Francis, Jr., by community property settlement, dated March 9, 1976. Florida Francis transferred the property to her son, defendant herein, by act dated April 13, 1976.

The right-of-way was originally created to allow access from the public road on the opposite side of the railroad tracks, through defendant’s property, and onto the tract now owned by plaintiffs. At present, access may be gained by leaving Louisiana Highway 1, crossing a ditch and railroad tracks, and then another ditch, by means of a ramp which leads to the right-of-way located on defendant’s property; and plaintiffs’ land is situated directly to the west.

The sole issue is whether there has ever been a ten-year period where the right-of-way has not been used by plaintiffs or by their predecessors in title.

This right-of-way is characterized by the Louisiana Civil Code as an affirmative predial servitude. Civil Code Art. 646 provides:

A predial servitude is a charge on a ser-vient estate for the benefit of a dominant estate. The two estates must belong to different owners.

And Civil Code Art. 706 provides in pertinent part:

Predial servitudes are either affirmative or negative.
Affirmative servitudes are those that give the right to the owner of the dominant estate to do a certain thing on the servient estate. Such are the servitudes of right of way, drain, and support. [Emphasis ours.]

As a predial servitude, it is governed by a 10-year prescriptive period. Civil Code Art. 753. For affirmative servitudes, prescription begins to run from the date of the last use. Civil Code Art. 754.

The trial judge considered the extensive testimony on both sides and concluded that the right-of-way had not been extinguished by ten years non-use. We agree.

The record shows that there were several periodic visits made to plaintiffs’ property, since its acquisition by Delta Mud in 1957. These occurrences involved the use of the right-of-way either to obtain entrance to the land or simply to observe any activity thereon.

Louis Talbot was the Vice-President of Delta Services in charge of sales in 1957, when Delta Mud first obtained the right-of-way. He testified that he made two or three visits during the negotiations for the sale of the land in 1956; that from 1957 to 1961, he made two visits personally and had operational men inspect the tract three or four times a year; that from 1961 to 1970, he and his family would occasionally check on the property for his company after football games, probably in 1964 or 1965; and that his last visit was with plaintiff in January or February of 1971, in contemplation of the sale. During each of these visits, Talbot stated that he utilized the right-of-way to gain entrance onto the property, or simply to observe same.

Louis Oliver, another employee of Delta Mud, testified that from 1970 to 1973, he was instructed by his company to go onto the land to cut the grass; that he transported a bush hog on an 18-wheeler which he used to cut the property; that he used the right-of-way during each visit to gain entrance; that approximately two visits per year were made; and that on each trip, it took about two days to cut the entire area.

Ray Burleigh testified that while employed by Baroid Mud Company in June of 1971, he went with his wife and children to “check out” the tract for his boss; that at this time he simply used the right-of-way to go to the edge of the land and observe any activity; that he returned by himself in the Summer of 1974, this time on behalf of General Mud, to see if it would be an appropriate spot, for business; that he actually walked on the land from the right-of-way; and that he contacted Talbot at this time concerning purchasing the land.

Plaintiff, President and co-owner of General Mud Company, testified that he first checked on the land in June of 1957; that every two or three years after that he would go and observe the land up until 1964; that in the Fall of 1970 he went to the tract with the specific purpose of purchasing it and on this visit spoke with Willie Francis; that he went back with Mr. Talbot in the Spring of 1971; that he was informed by letter dated March 29,1971, that he could purchase the property from Delta Mud; that in 1972 he went to the property; that Delta Mud then sold out to Chromalloy American Corporation; that he visited the property in 1978 or 1979 and then with his attorney, thirty days before the purchase date, November 11, 1980.

Willie Francis, defendant’s father, testified that he purchased the Francis tract in 1963; that the ramp which provided access to his property and to the right-of-way was in deplorable condition; that he and his son and workers built the ramp back up over several months; that they also built a barbed wire fence separating the two tracts, all in 1963; that he built a burial vault business and a residence on the land where he resided part-time; and that he never saw anyone use the right-of-way and go onto the Latour property, except for a few hunters, to whom he gave permission to use the right-of-way for access to the adjacent tract.

Defendant’s testimony was consistent with his father’s. He added that he had worked on the property since 1965; that he was physically present on it ninety percent of the time; that he has lived on it since 1969; that there was a hog pen present on the property from approximately 1968 to 1977; that he has had wire delivered in an 18-wheeler, but no other large vehicle entered the premises; and that he has never seen anyone use the servitude to enter the Latour property.

Eloise Francis, defendant’s wife, stated that she is a housewife and is always at home; that the longest she has been away from her home is half a day; and that she has not seen the servitude used for access to the adjacent tract.

Daniel Walker stated that he built a hog pen on the property and raised hogs thereon from 1968 to about 1973; that he visited the property about one hour a day, seven days a week; and that he does not recall ever seeing anyone use the servitude.

Several other defense witnesses, mainly employees, relatives, and friends, testified that they had not seen any use of the right-of-way to get to the Latour property. Their testimony did establish that the fence built by Willie Francis in 1963 can hardly be seen at this time.

The trial judge stated in oral reasons: ... as I said, there are two things about the case which the Court can’t reconcile and, as I said, to me the fact that many of the witnesses went back there, didn’t see the hog farm, didn’t see all these buildings. I can’t reconcile that — and I don’t impute any perjury or ill motives to anybody — any more than I can reconcile the testimony of the Francises who were there day in and day out, never took a vacation, every day but Sunday they were there and never saw anybody go on this property ... but I am convinced from the testimony that there was use made of this property and there never was a ten-year period in which there was no use made of it.

Great weight must be given to the credibility determinations of the trial judge, who has the opportunity to observe the conduct and demeanor of the witnesses. Murphy v. DeLatte, 389 So.2d 912 (La.App. 4th Cir. 1980); writ denied, 396 So.2d 899 (La.1981). His findings will not be set aside, unless the appellate court is convinced from its review that they are clearly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our review of the record shows ample evidence to support the trial judge’s conclusion that the right-of-way was not extinguished by ten years non-usage.

Defendant argues that certain visits made by plaintiff, when he was a competitor of Delta Mud, and an employee and co-owner of General Mud Company, were not sufficient “uses” of the right-of-way for purposes of interrupting prescription.

A predial servitude is a charge established on an estate expressly for the benefit of another estate, as opposed to being granted for the convenience of the person. Civil Code Arts. 533, 534, 646, 731 and 734. Civil Code Art. 757 states:

A predial servitude is preserved by the use made of it by anyone, even a stranger, if it is used an appertaining to the dominant estate.

The trial judge found, with respect to the right-of-way question:

And what that last phrase, “if it be used as appertaining to the dominant estate,” means in the opinion of the Court is that it must be used for some purpose connected with the ingress and egress to the dominant estate, ... that someone must use the property for the purpose of going onto that property for some legitimate purpose, either to see the owner or for something connected with the use of that property ....

The Official Reporter’s Comments to Civil Code Art. 757 detail Articles 793 and 794 of the Civil Code of 1870, which formed the basis for the present rule:

Comments
(a) This provision reproduces the substance of Articles 793 and 794 of the Louisiana Civil Code of 1870. It does not change the law.
(b) Thus, the servitude is preserved by the use made of it by one who possesses the dominant estate in bad faith. But if any one passes over the land of another considering the way as public, or as belonging to another estate, the owner of the dominant estate may not avail himself of the use thus made of the servitude in order to prevent the running of the prescription. C.C. art. 794(1), (2) (1870).
(c)In order to preserve a predial servitude and prevent prescription from running against it, it is not necessary that the servitude be exercised personally by the owner of the dominant estate or by a person who uses his rights or who represents him directly, as a usufructuary, a lessee, or a mandatory. It suffices that the servitude be exercised by employees of the owner, his friends, or visitors. C.C. art. 793 (1870).

The explicit language of Civil Code Art. 757, along with its comments, supports the trial judge’s conclusion. The use of the right-of-way by plaintiff, who was described by Louis Talbot as his “friendly competitor” and by the trial judge as a “prospective buyer,” was within the scope of activities sufficient to interrupt prescription under Civil Code Art. 757.

For the above reasons, the judgment of the trial court is affirmed and all costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


author: CARTER, Judge:

text:
    Ronnie L. SCOTT v. Pansy Comeaux SCOTT.
    No. 82 CA 0028.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      F. Barry Marionneaux, Plaquemine, for defendant in rule, Ronnie L. Scott.
    Dana K. Larpenteur, Wilbert & Larpen-teur, Plaquemine, for plaintiff in rule, Mrs. Pansy C. Scott Rivet.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge:

This case involves the custody of two minor children, ages 5V2 and 3V2, born of the marriage between Ronnie L. Scott, appellant, and Pansy C. Scott Rivet, appellee.

A judgment granting a separation between the parties and custody of the children to the mother was rendered on November 5, 1980. In January of 1981, custody was removed from the mother and transferred to the father. Mr. Scott obtained a judgment of divorce on the ground of adultery on May 27, 1981 and was awarded the permanent care, custody and control of the minor children. On September 3,1981, Ms. Rivet filed a rule seeking to change custody from Mr. Scott to herself, and, in the alternative, to have specific visitation set by the court.

The matter was heard and judgment was rendered granting joint custody of the children first to Mr. Scott and then to Ms. Rivet for periods of one year each, to continue in alternate fashion until the children reach the age of majority. Visitation was set for every other week-end. Mr. Scott has perfected a devolutive appeal from this judgment.

The first issue on appeal is whether or not the trial judge erred in granting joint custody to the parties. We find that he did.

The situation presented in this case is clearly governed by La.Civ.Code art. 157, which provides in pertinent part, as follows:

“In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, or to both jointly by agreement of both the husband and wife, in accordance with the best interest of the child or children; however, an award of joint custody may be granted only when the husband and wife are both domiciled in the State of Louisiana. If either parent changes his or her domicile to another state, the other may petition for sole custody. No preference shall be given on the basis of the sex of the parent in cases where custody is awarded to only one parent.” (Emphasis by the court)

The plain language of La.Civ.Code art. 157 requires that awards of joint custody be made only when 1) both parents agree to such an award, 2) both parents reside in Louisiana, and 3) it is in accordance with the best interest of the child or children.

There is no indication in this case that Mr. Scott agreed to an award of joint custody. Joint custody was not, in fact, requested by Ms. Rivet in her rule for change of custody, although it appears to be acceptable to her. The trial judge apparently decided on his own, without the agreement of the children’s parents, that an award of joint custody was in the best interest of the children.

Ms. Rivet argues that the trial judge’s broad discretion includes making an award of joint custody without the agreement of the parents. However, prior to the 1981 amendment of La.Civ.Code art. 157 authorizing awards of joint custody under certain circumstances, jurisprudence was well-established that custody should not be divided between the parents, but should be granted to one or the other of them. Pate v. Pate, 348 So.2d 1338 (La.App. 3rd Cir. 1977); Schexnayder v. Schexnayder, 343 So.2d 393 (La.App. 4th Cir. 1977); Sims v. Sims, 340 So.2d 397 (La.App. 2d Cir. 1976); Ogden v. Ogden, 220 So.2d 241 (La.App. 1st Cir. 1969); Newson v. Newson, 176 La. 694, 146 So. 472 (La.1933).

The language of La.Civ.Code art. 157 imposes a clear limitation upon the trial judge’s discretion by requiring parental agreement as a prerequisite to an award of joint custody. Unless it was intended as such, there would have been no reason for the legislature to include the language “by agreement of both the husband and wife” in the amendment to article 157. To hold otherwise would be to totally ignore the plain language of the article as amended.

Therefore, because the parents in this case did not agree to an award of joint custody, the judgment of the trial court must be reversed.

The next question on appeal is to whom should custody be granted. The sole criterion for determining if a change of custody should be granted is the best interest of the children. La.Civ.Code art. 157; Bordelon v. Bordelon, 390 So.2d 1325 (La.1980).

The trial judge’s conclusion that Mr. Scott is providing a good home for his children is supported by the record. There is no indication that the children are not happy and well-adjusted. Additionally, it seems that Mr. Scott’s present wife has a genuine affection for the children and will take an active part in caring for them. The family attends church regularly and is active in church affairs. Appellant stated that he plans to purchase the three-bedroom house in which the family is presently living. The evidence as a whole indicates that the present atmosphere of the father’s home is wholesome and healthy for children of such a young age as those concerned.

A very significant factor in favor of maintaining custody in Mr. Scott is the stability of the children’s environment. This consideration is an important factor in determining the best interest of a child. Bordelon v. Bordelon, supra. As of now, appellant has had custody of the children for approximately 16 months. Considering the ages of the children, 5V2 and 3V2, this time period is a significant portion of their lives. Since removal of the children from the custody of their father would undoubtedly be very traumatic, the advantages of living with their mother should be considerable in order to justify making a change of custody. Otherwise, it does not seem that permitting such an emotional upheaval would be in the children’s best interest.

The primary argument advanced by Ms. Rivet to show that granting custody to her would be in the children’s best interest is that she would have more time to spend with them since she is unemployed and appellant and his wife both work shift-work. In reply, Mr. Scott testified that since he and his wife are not on the same shift, one of them will be home with the children every day except for approximately one day per week and perhaps a few hours on the mornings they come off the dog-shift. On these occasions, the two children will be cared for by Mr. Scott’s mother. Appellant also stated that he had off every other weekend. Therefore, it appears that the children will not be significantly deprived of parental supervision and attention. The mere fact that the working conditions of a custodian parent, such as working shift work, causes difficulties, does not necessarily mean that the custodian parent is unable to properly care for the children. Hays v. Hays, 365 So.2d 563 (La.App. 1st Cir. 1978). As in Hays, supra, the record herein reflects that the children have been properly cared for despite the difficulties caused by Mr. Scott’s and his wife’s work schedule.

Another factor given emphasis by Ms. Rivet is the fact that she is the children’s mother. She is no longer entitled to a preference on this basis, but it remains a factor to be considered. La.Civ.Code art. 157. Additionally, Mr. Scott’s present wife should be able to provide the children with many of the benefits which are generally thought to be provided exclusively by females.

We note that the trial judge concluded that Mr. Scott was providing a good home for the children and was “more ready” for the children than appellee. The conclusions reached by the trial judges in custody cases are entitled to great weight on review. Camelo v. Camelo, 402 So.2d 174 (La.App. 1st Cir. 1981); Bordelon v. Bordelon, supra. Accordingly, these conclusions, as well as an examination of the record, convince us that it is in the children’s best interest that Mr. Scott be granted custody.

The remaining issue on appeal is whether or not the trial judge erred in refusing to deny visitation privileges to Ms. Rivet.

A noncustodian parent is entitled to reasonable visitation rights unless he has forfeited that right or unless the exercise of such visitation rights would be injurious to the child. D’Armond v. D’Armond, 405 So.2d 1231 (La.App. 1st Cir. 1981); Pate v. Pate, supra. Obviously, the trial judge did not find that visitation rights granted to Ms. Rivet would be detrimental to the welfare of the children.

We affirm the holding that visitation rights should be granted, but remand the case to the trial judge for determination of visitation in light of the judgment rendered by this court.

For the above reasons, the judgment of the trial court is reversed in part, affirmed in part, and remanded.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.


text:
    Anthony MICHELLI v. Dorothy Michelli LIPARI.
    No. 82 CA 0046.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Leonard E. Yokum, Jr., Hammond, for plaintiff-appellee.
    Bryan E. Bush, Jr., Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Dorothy Michelli Lipari (appellant) seeks to reverse a judgment which awarded the permanent care, custody and control of Bridget Michelli to Anthony Michelli (appel-lee). She presents two specifications of error: (1) The trial court erred in not awarding the custody of Bridget to her, as the testimony and evidence did not support such judgment and such denial in change of custody was a clear abuse of discretion; and (2) the trial court erred in filing written reasons for judgment after jurisdiction of the trial court was divested, upon lodging of this record.

The written judgment signed by the trial judge was dated November 6, 1981, containing this preamble:

After due hearing on the merits of the matter, and for written reasons assigned, the Court being of the opinion that it is in the best interests of the child, ...

The motion for appeal was granted November 24,1981. The written reasons for judgment were not filed until February 9, 1982, after the record was lodged with this court on January 22, 1982. The appellant argues that C.C.P. Art. 2082 is controlling; that the jurisdiction of the trial court over all matters was divested on November 24, 1981; and that the written reasons should not be afforded any weight on appeal because the trial court’s jurisdiction had been divested, so it had no authority to render written reasons after November 24. Appel-lee calls our attention to paragraph 4 of C.C.P. Art. 2088, which grants the trial court jurisdiction to:

... correct any misstatement irregularity, informality, or omission of the trial record, as provided in Article 2132.

The written judgment clearly referred to the trial court’s written reasons. These reasons were omitted from the record but certainly should have been a part of it. This omission could be corrected even after the record was lodged with us under the express language of C.C.P. Art. 2132, which provides:

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

The remaining issue is whether the best interest and welfare of Bridget Michel-li will be served if custody remains with her father. In that connection, the court refers to the following express findings of fact by the trial court:

1. The child was not terrified of her father as alleged by the mother.
2. A comparison of the child’s school records from the period when the mother had custody to that period when the father had custody showed a marked improvement instead of a deterioration as the mother had alleged.
3. There was no indication that the child was being deprived of any medical care, when needed. The child actually seemed to have fewer tension problems and pains during the latter period.
4. The child did express a desire to live with her mother, but the Court feels that it is because more freedom (sic) given her by her mother and less discipline.

A careful analysis of the record indicates that the trial court did not commit manifest error in its findings of fact. The record abundantly and very clearly substantiates same.

The trial court also disapproved of appellant’s action in having Bridget examined by a child psychiatrist, Dr. Joseph R. Manson. The reason for the examination was to assist her in this suit, rather than a belief that Bridget needed medical treatment. Dr. Manson testified that the child did not have any psychiatric problems. He felt that the reason for his entry into this case was because appellant wanted his opinion as to which parent should have custody.

This record, taken as a whole, clearly indicates that the best interests of this child would be served by continuing custody with appellee, and that the judgment of the trial court was correct in all respects.

All costs are taxed to appellant.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Shelly Martin BABIN v. Whitney BABIN, Jr.
    No. 82 CA 0047.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Hobart O. Pardue, Jr., Springfield, for plaintiff-appellee.
    Walter L. Comeaux, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This appeal arises from a rule for change of child custody. Whitney Babin, Jr. ruled his former wife, Shelly Martin Babin, to show cause why custody of their minor child should not be awarded to him. From a judgment in favor of Shelly Martin Ba-bin, dismissing the rule, Whitney Babin, Jr. has appealed.

The parties were divorced in June, 1978. Michelle, age five at the time of the divorce, was the only child of the marriage. The judgment of divorce granted permanent custody of Michelle to her mother, Shelly Martin Babin.

Michelle began living with her father in June of 1980, and lived with her father until August 7, 1981, when her mother demanded her return after quarreling with the father. Whitney Babin, Jr. relinquished physical custody and filed a rule nisi to show why permanent custody should not be awarded to him. After hearing the evidence, the trial judge dismissed the rule. Michelle was nine years old at the time.

Whitney Babin, Jr. basically argues on appeal that the judgment of the trial court maintaining custody with the mother was contrary to the law and evidence.

Appellant contends that custody should have been awarded to him because Michelle lived with him for fourteen months with her mother’s consent, the child prospered and developed during this time, and he is able to provide Michelle a stable environment. Appellant sought to prove at the custody hearing that his former wife was without a steady income, tended to change residences frequently, cavorted with men in front of Michelle, and smoked marijuana in front of the child. Shelly Martin Babin admitted that her deteriorating relationship with her second husband, Mark Elam, was what prompted her to allow Michelle to move in with her father in June, 1980.

Louisiana Civil Code Article 157 provides the standard used in determining an award of permanent custody. As amended in 1981, the code article states in pertinent part:

“A. In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, or to both jointly by agreement of both the husband and wife, in accordance with the best interest of the child or children; however, an award of joint custody may be granted only when the husband and wife are both domiciled in the state of Louisiana. If either parent changes his or her domicile to another state, the other may petition for sole custody. No preference shall be given on the basis of the sex of the parent in cases where custody is awarded to only one parent. Such custody hearing may be held in private chambers of the judge.”

Thus, in all custody cases, the best interest of the child is the primary consideration, without any preference being given on the basis of the sex of the parent. See Camelo v. Camelo, 402 So.2d 174 (La.App. 1st Cir. 1981); Traylor v. Traylor, 388 So.2d 70 (La.App. 1st Cir. 1980).

Appellant argues that his home will provide a stable environment which is in the best interest of Michelle. He contends that when Michelle came to live with him in June, 1980, she had the nervous habit of plucking her eyelashes which resulted in the child not having eyelashes at all. Appellant sought psychiatric help for Michelle, which helped her break the habit. Appellant also introduced Michelle’s report card from the 1980-1981 school year (when she lived with appellant) and a partial report card from the 1981-1982 school year to show that Michelle’s grades have dropped somewhat since returning to live with her mother in August, 1981.

Appellant and his present wife testified that Michelle and her mother have both related that the mother uses marijuana in front of the child. Testimony at trial also indicated that Shelly Martin Babin had moved a large number of times since her divorce from appellant, and that she has a difficult time finding and holding construction jobs, due to fluctuations in the construction industry. Appellant also testified that Michelle had told him that she and her mother had slept in a bed together with a man not the legal husband of Shelly Martin Babin. Appellant stated that he and his present wife loved and would care for Michelle, and would provide her a stable, caring, religious home.

However, Shelly Martin Babin testified that her moving around was due to her need to find jobs, and that she and her daughter were now living with her mother, where she intended to reside indefinitely. Appellee also denied flatly that she had ever conducted herself immorally with a man while Michelle was in the same house. Although she admitted to marijuana use in the past, appellee testified that she had not smoked marijuana in more than three years. Mrs. Babin (now Elam) stated that Michelle’s stay with her father was initiated as an exercise of his summer visitation rights and that the parties had agreed to let Michelle stay with her father for one school year, since appellee and her second husband were experiencing marital difficulties which appellee did not want Michelle to witness. Appellee maintained that it was never her intention to give up custody of Michelle to her former husband, and that she sought Michelle’s return as soon as the school year was 'over. Appellee’s mother (with whom appellee and Michelle currently reside) and appellee’s pastor both testified that appellee had provided and would continue to provide Michelle with a stable, loving environment.

In custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Cleeton v. Cleeton, 383 So.2d 1231 (La.1979) on rehearing; Camelo, supra; Traylor, supra. The best interest of the child, and not the possibility of harm, is the sole criterion applicable to change of custody cases. Borde-lon, supra at 1328.

The trial judge evaluated all of the conflicting testimony and determined that Michelle’s best interest would be served by remaining with her mother. After a careful and thorough review of the record in its entirety, we are unable to conclude that this determination by the trial court was a clear abuse of its discretion.

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

AFFIRMED.

      . Appellee physically separated from her second husband in March, 1981.

      . Appellee further testified that it was appellant who had introduced her to the use of marijuana.


author: ELLIS, Judge:

text:
    In the Interest of the Minor Amy Rochelle VOYLES.
    No. 82-CJ-0068.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Guy A. Módica, and Carmack M. Black-mon, Baton Rouge, for plaintiffs-appellants Tom D. Allgood and Irys Lynn Voyles All-good.
    David A. Leclere, Baton Rouge, for defendant-appellee Harrold Hansel Austin.
    A. Edward Hardin, Baton Rouge, for defendant-appellee Inge Meyer Austin.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

This is a suit for the annulment of an adoption. Plaintiffs are Tom D. Allgood and Irys Lynn Voyles Allgood. The petition alleges that on March 13, 1971, Mrs. Allgood, then 15 years of age and unmarried, gave birth to a female child. It is further alleged that Mr. Allgood is the natural father of the child. Mrs. Allgood alleges that she was coerced by her parents and others into giving up the child for adoption, that she was never permitted to see the child, and that the whereabouts of the child were concealed from her until March, 1981. It is further alleged that the child was subsequently adopted by Harrold Hansel Austin and Inge Meyer Austin, who are named defendants herein.

To the petition, defendants filed a peremptory exception of prescription, based on R.S. 9:405, and, as to Tom D. Allgood, an exception of no cause of action. After a hearing, the peremptory exception of prescription was sustained, citing R.S. 9:405 and R.S. 9:440, and plaintiffs’ suit dismissed. From the judgment of dismissal, plaintiffs have appealed.

R.S. 9:405 provides as follows:

“No action to annul any court order or decree of abandonment of a child, or attacking the validity of any voluntary surrender of custody of a child prior to July 31, 1974, where the reason for annulment or attack is lack of jurisdiction, a defect in the procedure followed, lack of capacity or authority of the person executing the surrender, the alleged invalidity of the statute under which the decree was rendered or surrender executed or for any other reason, shall be brought after the lapse of one year from July 31,1974.”

R.S. 9:440 provides:

“No action to annul a final decree of adoption rendered prior to July 31, 1974, for any reason, may be brought. No action to annul a final decree of adoption rendered prior to September 7, 1979, for any reason, shall be brought after a lapse of six months from September 7, 1979.”

In this court, plaintiffs claim that the above two statutes do not apply in cases in which the adoption is an absolute nullity. Alternatively, it is claimed that the doctrine of contra non valentem agere, nulla currit praescriptio is applicable. In the further alternative, it is contended that R.S. 9:405 and R.S. 440 are unconstitutional under the state and federal constitutions.

The record reveals that Amy Rochelle Voyles was born on March 13,1971, and was immediately placed in the care of Mr. and Mrs. Austin by Mrs. Allgood’s mother. Mrs. Allgood testified, without contradiction, that her mother refused to tell her where Amy was. She further testified that she signed a surrender document and offered no opposition to the subsequent abandonment proceeding because her mother threatened to have Mr. Allgood arrested for carnal knowledge of a juvenile and to have her (Mrs. Allgood) placed in a detention home if she fought the adoption. It is clear from the record that copies of the pleadings in the abandonment proceeding were served on Mrs. Allgood, and that both she and her husband were aware of the nature of the proceeding, and that Amy was to be adopted by parties selected by Mrs. Allgood’s mother.

The abandonment proceeding was instituted April 6, 1972, and judgment of abandonment was signed on June 6, 1972. The adoption proceeding was filed on June 15, 1972, and the final decree of adoption was signed on April 10, 1973. Because of the abandonment decree, no notice of any kind was given Mrs. Allgood in the adoption proceeding.

Mrs. Allgood testified that she finally learned Amy’s whereabouts in March, 1981, and this suit to annul the adoption was brought in July, 1981.

Act 147 of 1974 amended R.S. 9:440 so that it read as follows:

“No action to annul a final decree of adoption rendered prior to July 31, 1974, for any reason, shall be brought after the lapse of six months from July 31, 1974.”

As amended in 1979, R.S. 9:440 presently forbids any action to annul an adoption decree rendered prior to July 31, 1974. If these statutes mean what they say, plaintiffs’ right of action was extinguished on January 31, 1975.

Plaintiffs’ first argument is that the above statute was designed to remedy minor procedural defects and not to cure absolute nullities arising from the failure to follow basic substantive requirements of the law. Plaintiffs rely on certain dicta in Succession of Donellan, 310 So.2d 143 (La. App. 4th Cir. 1975), in which the court indicated that a forged notarized act of adoption would be an absolute nullity, not cured by a statute of repose. The instant case involves a judicial proceeding and an entirely different statute.

We find R.S. 9:440 to be entirely clear. We hold that “for any reason” means what it says, and that it is now too late for plaintiffs to seek the nullity of the adoption, assuming, arguendo, that the proceedings were, in fact, absolutely null for the reasons stated.

Plaintiffs’ next contention is that they are entitled to the benefit of the doctrine contra non valentem agere, nulla cur-rit praeseriptio. The doctrine states that prescription does not begin to run against one who is ignorant of facts that would entitle him to bring suit. They contend that they believed they could do nothing until they knew the whereabouts of their child, and that the one year period of prescription or peremption prescribed by R.S. 9:440 did not begin to run until that time. However, the record shows that both plaintiffs were aware of the abandonment proceeding; that they knew that there was an impending adoption; that they were married on July 15, 1972, and no longer under any threat of imprisonment at a time when the adoption proceeding was barely under way; and that they still took no action to contest the adoption or appeal the abandonment judgment.

Therefore, even if the doctrine of contra non valentem is applicable to a situation involving a statute of repose, which is not at all clear, plaintiffs would not be entitled to its benefit under the circumstances of the case.

Plaintiffs further contend that R.S. 9:405 and R.S. 9:440 are unconstitutional because they are special statutes in contravention of Article III, Section 12 of the Constitution of 1974, formerly Article IV, Sections 4 and 5 of the Constitution of 1921. A special statute is one designed to secure a special advantage for the benefit of private individuals. It is argued that the statutes in question are special rather than general in nature because they are designed to legalize proceedings not carried out in accordance with the laws relative to adoption proceedings, and benefit only those persons who failed to follow the provisions of the law.

In disposing of the point, the trial judge said, in his written reasons for judgment:

“The Louisiana Supreme Court distinguished a special law from a general law in St. [State] v. Slay, 370 So.2d 508 (La.1979):
A statute is considered a special ... law if its restrictions can affect only a portion of the citizens. A general law operates equally and uniformly upon all the persons brought within the relations and circumstances for which it provides.
“The statute here operate an all persons wishing to annul acts of surrender or adoptions. The bar to the action is equal and uniform. Excluded from the class of people who are barred are only those who brought their actions timely and those who have no interest in annulling any act of surrender or adoption. This application of the laws is equal and uniform as to all citizens in a rationally based classification. Davenport v. Hardy, 349 So.2nd 858 (La.1977); St. [State] v. Clement, 188 La. 923, 178 So. 493 (1938); Martin v. La. Stadium and Exposition Dist., 349 So.2nd 349 (La.App. 4th Cir. 1977).”

We agree with the reasons of the trial judge.

Finally, plaintiffs argue that R.S. 9:405 and R.S. 9:440 are unconstitutional because they violate the equal protection and due process clauses of the Constitution of the United States. It is argued that the goal of the statutes, to insure the validity of defective adoption proceedings after the passage of a period of time, is outweighed by the fundamental right of natural parents to rear their own children.

There is a presumption of constitutionality of a statute, and the party attacking its constitutionality has the burden of proof. In this case, the authorities relied on by plaintiffs are inapposite. Plaintiffs had the means, the knowledge and the opportunity to attack the validity of this adoption proceeding for over two and one half years after their marriage, and failed to do so. Their ignorance of their rights is of no moment.

It must not be overlooked that there is no suggestion in this case that the defendants were in any way parties to the coercion practiced by Mrs. Allgood’s mother. Amy has never known any other parents than defendants, and, as of this writing, she is eleven years old. R.S. 9:405 and R.S. 9:440 are designed to prevent the disruption which would surely result should we not give effect to those statutes.

We hold that plaintiffs have not borne their burden of demonstrating the unconstitutionality of R.S. 9:405 and R.S. 9:440, and that their right to attack the adoption judgment in question was cut off as of January 31,1975. The exception of prescription was properly sustained.

The judgment appealed from is affirmed, at plaintiffs’ cost.

AFFIRMED.


text:
    Maxime THOMAS, et al. v. Rev. Gordon G. CRAIG.
    No. 82 CA 0118.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Milton Osborne, Jr., Baton Rouge, for plaintiffs-appellant Máxime Thomas, et al.
    Charles R. Moore, Baton Rouge, for defendant-appellee Rev. Gordon G. Craig.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge:

This litigation is before us on a “Motion to Dismiss for Failure to Join Indispensable Party” filed by defendant-appellee Rev. Gordon G. Craig.

The appeal in this case is from a judgment sustaining a declinatory exception of lack of jurisdiction over the subject matter of the action. Arguments were heard on this exception and on December 23, 1981, judgment was rendered sustaining the exception dismissing plaintiffs’ suit at their costs. On December 23, 1981, a motion and order for a devolutive appeal was filed and signed returnable to the First Circuit Court of Appeal on March 23, 1982. On April 26, 1982, defendant-appellee filed a “Motion to Dismiss for Failure to Join Indispensable Party”. In pursuant thereto, a rule to show cause was issued to the parties to show cause by briefs why the appeal should or should not be dismissed.

Plaintiffs-appellants filed suit against Rev. Gordon G. Craig seeking to have certain provisions of the Articles of Incorporation of Fellowship Missionary Baptist Church of Denham Street declared illegal, null and void, and further seeking a temporary restraining order and preliminary injunction prohibiting defendant-appellee Rev. Craig from disposing of church property, dissolving the church and interfering with the Board of Deacons. Finding the controversy to be purely a religious matter, the trial court sustained the defendant’s exception to jurisdiction and dismissed the case. Defendant filed the instant pleading and though styled “Motion to Dismiss for Failure to Join Indispensable Party”, it is in reality, a peremptory exception of nonjoin-der of indispensable party filed for the first time at the appellate level.

La.Code Civ.P. art. 927 clearly provides that the exception of nonjoinder of an indispensable party is a peremptory exception. La.Code Civ.P. art. 2163 provides that the appellate court may consider a peremptory exception filed for the first time in that court if pleaded prior to submission of the case for decision and if proof of the ground of the exception appears of record.

Peremptory exceptions filed initially on appeal are generally (although not required by law) determined in the opinion on the merits of the case and not by motion to dismiss. See e.g. Whittington v. Hopfensitz, 321 So.2d 836 (La.App. 1st Cir. 1975). Whether or not the exception is considered on a motion to dismiss, on the merits of the case on appeal, or remanded to the trial court for determination is within the discretion of the appellate court. La.Code Civ.P. art. 2163. Therefore, we deem it appropriate in the instant case to address the peremptory exception of nonjoinder of an indispensable party on the merits of the case on appeal.

Since the peremptory exception of nonjoinder of an indispensable party will be addressed on the merits of the case on appeal, the motion to dismiss the appeal is denied and costs will be assessed on final disposition of the case.

MOTION TO DISMISS DENIED.


author: COVINGTON, Judge.

text:
    Leroy A. DARDAR v. Betty Billiot DARDAR (Theresa Billiot Dardar).
    No. 82 CA 0122.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Stanley L. Perry, Galliano, for plaintiff-appellant Leroy A. Dardar.
    Leslie J. Clement, Jr., Thibodaux, for defendant-appellee Betty Billiot Dardar.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal by the father, Leroy A. Dardar, from a judgment dated December 10, 1981, granting permanent care, control and custody of the minor children, Jay Dar-dar and Margaret Dardar, to their mother, Theresa Billiot Dardar. We affirm.

On May 6, 1981, the parents of the minor children obtained a judgment granting custody of the children, by agreement, to the father. Then, the mother, on October 8, 1981, sued for change of custody to her, as being in “the best interest” of the children.

A hearing was held on December 10, 1981. On that date, the trial judge, for oral reasons assigned, rendered judgment in favor of the mother, giving her permanent custody of the children. In his oral reasons, the trial judge stated:

“You have to look at what would be in the best interest of the children. Should they be raised by the grandmother and the father, who is away half of the time, or should they be raised by the mother, who would be at home every evening to take care of them? I have no doubt that both homes are able, you know what I mean, both homes are — I am not disagreeing with the care that the children have been given. But the question is: should these children be raised away from home and not have the benefit of their mother’s tender care? Now, they are such young children — see, if they were older children, I think it would be a little different — but I think the best interest and welfare of the children would be that they be given to the mother, because of the things that have happened. Here is a man who is driving with his children, drinking, gets into two automobile accidents, goes into Bayou Lafourche. Luckily, the children were saved. And it just disturbs the Court a great deal to feel that these children are in the hands of the father who takes them out, not only on one occasion, twice, and drinks and goes into Bayou Lafourche. What is going to happen the next time? I think the best interest and welfare of the children, based on all the testimony I have heard, would be to have the children raised by the mother. So ordered.”

This case is governed by LSA-C.C. art. 157, as amended, which provides that permanent custody of the child shall be granted to the husband or the wife (mother or father) in accordance with “the best interest” of the child, “without any preference being given on the basis of sex of the parent.” This codal article as amended does away with the maternal preference rule and any presumption in favor of the mother in a custody dispute. Dickey v. Dickey, 383 So.2d 808 (La.App. 1 Cir. 1980); Thornton v. Thornton, 377 So.2d 417 (La.App. 2 Cir. 1979). This amendment also abrogates the “double-burden” rule. Bordelon v. Bordelon, 390 So.2d 1325 (La.1980).

The standard of review in custody matters gives great weight to the determination of the trial judge, and his discretion will not be disturbed on review in the absence of a clear showing of abuse thereof. Cleeton v. Cleeton, 383 So.2d 1231 (La.1980); Ferguson v. Ferguson, 398 So.2d 1238 (La.App. 4 Cir. 1981). We find no abuse in the instant ease.

The trial judge had the opportunity to view the opposing parties and was in a better position than the reviewing court to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the effect of all of the factors on the welfare of the children. He stated his reasons unequivocally.

Our review of the record leads us to conclude that the trial court had a sufficient basis for the award of permanent custody of Jay Dardar and Margaret Dar-dar to their mother, Theresa Billiot Dardar. We conclude that the trial court made a reasoned and correct award of permanent custody based on all of the evidence, and the best interest of these children will be served by permanent custody being in the mother.

Accordingly, the judgment is affirmed at the appellant’s costs.

AFFIRMED.


author: LANIER, Judge.

text:
    James J. BAILEY, III, et al. v. FRANKS PETROLEUM, INC.
    No. 82 CW 0208.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      John E. Coleman, Jr., Franklin, and John B. Noland, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiffs.
    Patrick S. Ottinger, Lafayette, Herschel M. Downs, Shreveport, for Franks Petroleum.
    David Klotz, Bodenheimer, Jones, Klotz & Simmons, Shreveport, for Scurlock Oil Co.
    Lee C. Kantrow and Richard F. Zimmerman, Jr., Kantrow, Spaht, Weaver & Walter, Baton Rouge, for Fidelity Nat. Bank of Baton Rouge.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a supervisory writ granted to review the judgment of the trial court overruling an exception of improper venue. Suit was originally filed by the plaintiffs to secure from Franks Petroleum, Inc. interest and attorney’s fees as penalties, in accordance with La.R.S. 31:133 et seq., for failure to timely pay royalties for mineral production pursuant to a mineral lease covering certain lands in St. Mary Parish, Louisiana. Plaintiffs filed a supplemental and amending petition seeking, in addition to interest and attorney’s fees, damages equal to double the amount of royalties past due and dissolution of the mineral lease. Franks Petroleum, Inc. answered the petition and filed a third party demand against Scurlock Oil Company for indemnification of all judgments rendered against it. Scurlock Oil Company answered the third party demand of Franks Petroleum, Inc. and filed a third party demand against the Fidelity National Bank of Baton Rouge (hereinafter referred to as Fidelity) for all sums for which it may be cast in judgment. Fidelity filed a declinatory exception of improper venue alleging that it was a fully chartered national banking corporation domiciled in the Parish of East Baton Rouge, Louisiana, that pursuant to the provisions of 12 U.S.C. § 94 of the National Bank Act, it could only be sued in East Baton Rouge Parish and that the Parish of St. Mary was an improper venue for the third party demand. The trial judge overruled this exception and Fidelity sought this supervisory writ.

A judgment overruling an exception of venue is interlocutory. Article 1841, Louisiana Code of Civil Procedure; James v. Charity Hospital of Louisiana at New Orleans, 398 So.2d 622 (La.App. 1st Cir. 1981). An interlocutory judgment is only appealable if it may cause irreparable injury. Article 2083, Louisiana Code of Civil Procedure; Glazer Steel Corporation v. Larose Shipyard, Inc., 368 So.2d 205 (La.App. 1st Cir. 1979); Thibaut v. Thibaut, 346 So.2d 809 (La.App. 1st Cir. 1977). In Her-litz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981), the Louisiana Supreme Court observed as follows in footnote 1:

“To reason that there is no irreparable injury is to decide that relator has no right to appeal under C.C.P. art 2083. (In that context irreparable injury occurs if any error in the ruling cannot as a practical matter be corrected on appeal. For example, once the trial court overrules an exception to the venue and the case is tried on the merits in the wrong venue, an appellate court has no practical means of correcting the error on appeal.) ...” (Emphasis Added).

Because of this observation by the Louisiana Supreme Court, we exercised our discretion and granted this writ to determine whether or not the venue was proper for the third party demand against Fidelity.

12 U.S.C. § 94 provides as follows:

“Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases." (Emphasis Added).

The Supreme Court of the United States has found that this statute indicates that Congress was concerned with the unnecessary interruption of a national bank’s business that might result from compelled production of bank records for distant litigation and this section, despite the presence of what might be regarded as permissive language, is not permissive but mandatory, and therefore, a national bank may be sued as an original defendant only in a state court in the county (parish) where the bank is located. Citizens and Southern National Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (Ga.1977). This line of jurisprudence has recognized two exceptions to the rule as it applies to the principal action. The first is that of waiver where the bank, as plaintiff, institutes a proceeding outside its home district against a defendant, or where the bank has failed to raise the objection timely. Kellogg Company v. First National Bank of Louisville, 512 F.Supp. 56 (W.D.Mich.1981); First National Bank of Minneapolis v. White, 420 F.Supp. 1331 (D.C.Minn.1976). The second is where the action is an in rem or “local” action as opposed to an in personam or “transitory” action. National Bank of North America v. Associates of Obstetrics and Female Surgery, Inc., 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed.2d 92 (1976); Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963); Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52 (1880); Chateau Lafayette Apartments, Inc. v. Meadow Brook National Bank, 416 F.2d 301 (5th Cir. 1969); Moreland v. Rucker Pharmacal Company, 59 F.R.D. 537 (W.D.La.1973); Security First National Bank v. Tattersall, 311 So.2d 218 (La.1975). In Chateau Lafayette Apartments, Inc. v. Meadow Brook National Bank, supra, it was held that where the principal purpose of a suit against a national bank was to cancel a mortgage on immovable property and erase it from the public records, the action was “local” and not “personal” and that the venue requirements of § 94 of the National Bank Act were not applicable. At page 304 of the Federal Reporter in that case appears the following:

“Article 80 of the Louisiana Code of Civil Procedure establishes mandatory venue for ‘an action to assert an interest in immovable property, or a right in, to, or against immovable property.’ Such an action ‘shall be brought in the parish where the immovable property is situated.’ While we are able to find no Louisiana decisions directly in point, we have little doubt that the action here, which by virtue of the amended complaint, seeks in major part to have a mortgage on immovable property in part ‘cancelled and erased from the public records of Lafayette Parish,’ and seeks to have ‘the mortgage * * * ordered reformed,’ is an action ‘to assert an interest in immovable property, or a right in, to, or against immovable property’; hence, the action could be brought in but one Parish, and, in this diversity case, that would be the Lafayette Division of the District Court. “Moreover, the effect of the remedy sought in Casey and the one claimed here virtually were the same. In Casey, complete cancellation and erasure of secured mortgages on immovable property was sought; here, although the action arose under circumstances not exactly the same as those in Casey, total or partial cancellation, reformation, and erasure of a mortgage on immovable local property is sought.” (Footnote Omitted).

The principal purpose of the instant case is to seek statutory penalties and termination of a mineral lease pursuant to La.R.S. 31:133 et seq. for violation of the lease’s royalty payment provisions. A mineral right is an incorporeal immovable whose situs is the parish or parishes in which the land burdened with it is located. La.R.S. 31:18. A mineral right is a real right and a mineral lease is one form of a mineral right. La.R.S. 31:16. Since this is a suit to cancel an immovable right (mineral lease) and to seek statutory penalties and damages for violation of an immovable right (mineral lease) this action can only “be brought in the parish where the immovable property is situated. . .. ” Article 80 of the Louisiana Code of Civil Procedure.

In Casey v. Adams, supra, at page 68 of the United States Reporter appears the following:

“... Local actions are in the nature of suits in rem, and are to be prosecuted where the thing on which they are founded is situated. To give the act of Congress the construction now contended for would be in effect to declare that a national bank could not be sued at all in a local action where the thing about which the suit was brought was not in the judicial district of the United States within which the bank was located. Such a result could never have, been contemplated by Congress.”

Accordingly, it is our opinion that the principal action in this case is a “local” proceeding and is not subject to the venue provisions of § 94 of the National Bank Act.

The fact that the third party demand against Fidelity is for indemnification and is incidental to the principal demand does not defeat venue. In Petrizzo v. United States, 492 F.Supp. 752 (D.N.J.1980) at page 755 of the Federal Supplement appears the following:

“This Court finds that since the third-party action is not an ‘original’ action, but is ancillary to the original action, the venue requirements of the banking act are not applicable. Indeed, Professor Moore has stated:
Where, it is necessary to make the distinction, we believe that it should be treated for what it is: a claim growing out of the main proceeding: that it does not involve a plenary (original) action (as some actions do that involve ancillary jurisdiction); and that the venue statutes which are designed to govern an original action are not applicable. With a few exceptions, especially in the earlier decisions, the weight of authority supports the view herein advocated: the third-party defendant has no objection based upon venue.
“3 Moore’s Federal Practice, ¶ 14.28[2]. See Odette v. Shearson, Hammili & Co., Inc., 394 F.Supp. 946 (S.D.N.Y.1975); Jones v. Kreminski, 404 F.Supp. 667 (D.Conn.1975); First Nat’l Bank of Minneapolis v. White, 420 F.Supp. 1331 (D.Minn.1976)....”

See also Herndon v. Herndon, 491 F.Supp. 53 (W.D.Tex.1980). CONTRA: Southeast Guaranty Trust Co., Ltd. v. Rodman & Renshaw, Inc., 358 F.Supp. 1001 (N.D.Ill.1973); Swiss Israel Trade Bank v. Mobley, 319 F.Supp. 374 (S.D.Ga.1970). The case of Security First National Bank v. Tattersall, supra, involved a subpoena duces tecum issued to a national bank in a “personal” action and did not involve a third party demand in a “local” action.

We believe that the majority view in the federal system concerning the applicability of § 94 to third party demands is the better view and is adopted by this Court. If § 94 is applied to third party demands, the result is multiple litigation and, thus, reduced judicial economy. It is basically unfair to require an original defendant, who has generally no choice over venue, to defend a suit in one jurisdiction and simultaneously prosecute a third party claim in the same matter in another jurisdiction. While certainly the power to repeal or modify § 94 is reserved to Congress, the courts should not extend application of this archaic statute to situations not clearly contemplated or specified.

Por the foregoing reasons, it is our opinion that the judgment of the trial court is correct and it is affirmed. The stay order previously entered herein is dissolved. Fidelity is cast for all costs of this writ.

AFFIRMED.


text:
    Melvin IRVIN, Jr. v. John Marshall GROWER dba Colony House Apartments.
    No. 82 CA 0363.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Walter C. Dumas, Baton Rouge, for plaintiff/appellant.
    William R. Mullin, III, Baton Rouge, for defendant/appellee.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Melvin Irvin, Jr. (plaintiff) filed suit for damages against John Marshall Grower, doing business as Colony House Apartments (defendant). Judgment was rendered in favor of defendant, and plaintiff appealed. Plaintiff failed to pay estimated costs of appeal, and the Clerk of City Court filed a motion for counsel to show cause why the appeal should not be dismissed. C.C.P. Arts. 5004 and 2126. After a hearing, the City Court dismissed the appeal by judgment signed February 26, 1982. On that same date, notice of judgment was mailed to plaintiff’s counsel. Plaintiff did not apply for a “new trial.”

On April 2, 1982, plaintiff applied for writs to this court, complaining of the judgment of dismissal. On April 6, this court denied the writ application, stating, “Proper remedy is by appeal.” No determination was made at that time as to whether or not the appeal delays had lapsed.

On April 8, 1982, plaintiff filed a motion for devolutive appeal which was signed on April 20, and made returnable on June 18. The appeal was lodged on May 19. This court issued a rule ex proprio motu to the parties, on May 20, to show cause why this appeal should not be dismissed, as not timely filed.

The applicable appeal delay is ten days from judgment, or notice, when necessary. C.C.P. Art. 5003. On April 2, the date plaintiff applied for writs, the appeal delays had lapsed. Also, it is well settled that an application for supervisory writs does not extend appeal delays. Guillory v. Hartford Insurance Company, 383 So.2d 144 (La.App. 3d Cir. 1980); Carmadelle v. Urrate, 359 So.2d 708 (La.App. 4th Cir. 1978).

For these reasons, we dismiss this appeal at appellant’s costs.

APPEAL DISMISSED.


text:
    Willie HOWARD v. HERCULES-GALLION CO., et al.
    No. 82 CM 0380.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Robert E. Kerrigan, Jr., New Orleans, for Peabody, defendant-appellee.
    Gordon Hackman, Boutte, for Willie Howard, plaintiff-appellant.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

The defendant-appellee, Peabody International, Inc., moves to dismiss this un-lodged devolutive appeal on the ground it was not timely perfected.

On November 4,1981, when this case was called for trial on the merits, counsel for the appellant (plaintiff), Willie Howard, filed a written motion for a continuance on the grounds that the plaintiff was not competent to testify and that he was not ready to proceed with the case. After hearing the arguments of counsel, the trial judge denied the motion for the continuance. Counsel for the appellant then advised the court that he was unable to proceed with the trial. Counsel for the appellee made a motion to dismiss the petition of the appellant with prejudice. A judgment of dismissal with prejudice was then verbally rendered by the trial judge in open court in the presence of counsel for the parties. Counsel for the appellant did not request notice of the signing of the judgment at this point in time.

The pertinent dates and facts of this motion to dismiss are as follows:

(1) November 5, 1981 — formal judgment signed and filed;
(2) November 13, 1981 — -appellant filed a request for notice of the date when the judgment was signed;
(3) November 16, 1981 — notice of judgment issued by the Clerk of Court;
(4) November 17, 1981 — notice of judgment served on counsel for appellant;
(5) November 19, 1981 — counsel for appellant filed a motion for a new trial;
(6) March 5,1982 — hearing on the motion for new trial;
(7) March 24, 1982 — judgment rendered and signed denying the motion for new trial;
(8) April 1, 1982 — motion for devolutive appeal filed.

The time for taking a devolutive appeal is prescribed by La.C.C.P. art. 2087 which provides that it must be taken within sixty (60) days of: (1) the expiration of the delay for applying for a new trial, if an application is not timely filed; (2) the court’s denial of a timely filed application for a new trial; and (3) the date of mailing notice of refusal to grant a timely filed application for a new trial when applicant is entitled to such notice. Pursuant to La.C.C.P. art. 1974, the delay for applying for a new trial is seven (7) days, exclusive of legal holidays. This seven (7) day delay commences to run on the day after the judgment is signed, except when notice of judgment is required under La.C.C.P. art. 1913, in which case the delay commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment. The portion of Article 1913 applicable to the facts of this case provides as follows:

******
“If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.”
* * * * * *

In Guaranty Bank & Trust Company v. Quad Drilling Corporation, 284 So.2d 349 (La.App. 1st Cir. 1973), this court held that Article 1913 did not require that the request for notice of signing of judgment be made at the time the court verbally pronounces its judgment, and that if such a request was filed of record at anytime prior to the conclusion of the trial, that it was a timely and valid request. The issue here presented is when a trial court does not take a case under advisement and renders a verbal judgment, is a request for notice of judgment timely if it is filed during the delay period for applying for a new trial after the formal judgment is signed?

Since counsel for the appellant did not make a request for notice of judgment at the time that the judgment of dismissal was verbally rendered, and did not file such request prior to the time that the formal judgment was signed, the delay for applying for a new trial commenced to run on November 6,1981, pursuant to Article 1974. We find no authority in the statutory law or jurisprudence that authorizes the interruption of the delay period for applying for a new trial once it commences to run. If such an interruption were permitted, an additional delay would be added to the appeal process which is not consistent with a policy of orderly and expeditious appeals. It is our opinion that a request for notice of judgment may be timely filed up to and including the day that the formal judgment is signed. Once the period for applying for a new trial commences to run, an application for notice of judgment pursuant to Article 1913 is untimely and of no legal effect.

Since the application for notice of judgment filed on November 13, 1981, did not interrupt the delay period for applying for a new trial, that period expired on November 17, 1981. Accordingly, the application for a new trial filed by appellant on November 19,1981, was untimely and of no legal effect. The sixty (60) day delay for taking a devolutive appeal commenced to run on November 18, 1981, and expired on January 18, 1982. Appellant’s motion for this devolutive appeal filed on April 1,1982, was untimely and of no legal effect. Since the appellant failed to appeal within the delays allowed by law, this court is without jurisdiction to hear this appeal. La.G.C.P. art. 2088; McKean v. Campbell, 392 So.2d 129 (La.App. 1st Cir. 1980); Dean v. General Finance Corporation, 348 So.2d 756 (La.App. 1st Cir. 1977).

The gratuitous mailing of notice of judgment by the clerk, when such notice was not required because the request for it was untimely, does not extend the time within which application for a new trial may be filed or an appeal may be taken. Mitchell v. Louisiana Power & Light Co., 380 So.2d 743 (La.App. 4th Cir. 1980). An untimely application for a new trial does not affect, interrupt or extend the delay for timely taking an appeal. Willie v. Otasco, 351 So.2d 844 (La.App. 1st Cir. 1977).

The instant case is one of three cases which were consolidated for purposes of trial on the merits by a judgment dated May 9, 1980. Before the date fixed for trial, the other two cases were compromised leaving only the instant case to be adjudicated. Appellant argues that a request for notice of judgment filed on March 10, 1977, in one of the consolidated cases is procedurally binding in the instant case. Consolidation of actions pursuant to La.C.C.P. art. 1561 is a procedural convenience designed to avoid multiplicity of actions and does not cause a case to lose its status as a procedural entity. Reed v. Pittman, 257 La. 389, 242 So.2d 554 (1970); Burke v. State Farm Mutual Automobile Insurance Company, 234 So.2d 432 (La.App. 1st Cir. 1970); Voth v. American Home Assurance Company, 219 So.2d 236 (La.App. 1st Cir. 1969); Darouse v. Mamon, 201 So.2d 362 (La.App. 1st Cir. 1967). Procedural rights peculiar to one case are not rendered applicable to a companion case by the mere fact of consolidation; each case must stand on its own merits. Williams v. Scheinuk, 358 So.2d 340 (La.App. 4th Cir. 1978). Thus, it has been held that filing an intervention (Williams), an order for briefs (Burke), or a judgment (Voth and Darouse) in one of several consolidated cases does not procedurally affect the others. By analogy the filing of the request for notice of judgment in a companion case which was consolidated with the instant case, especially when the companion case was compromised prior to trial, had no procedural effect on the instant case.

For the foregoing reasons, the appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.

      . See, for example, La.C.C. arts. 3516 et seq.; La.R.S. 9:5801 et seq.; Levy v. Stelly, 277 So.2d 194 (La.App. 4th Cir. 1973); 41 La.L.Rev. 227 (1980).

      . November 6, 9, 10, 12, 13, 16 and 17 were legal days and November 7, 8, 11, 14 and 15 were excluded as legal holidays. La.R.S. 1:55.

        .Willie Howard v. No. 50124 Dee Callahan, Earl Fischer and International Harvester Company; Willie Howard v. No. 50371 Hercules-Gallion Company and Peabody Solid Waste Management Corporation; and Willie Howard v. No. 59282 Terrebonne Parish et al.

      . No. 50124.


author: DOMENGEAUX, Judge.

text:
    Barry D. BURRIS, Plaintiff-Appellee, v. INSURED LLOYDS, et al, Defendants-Appellants.
    No. 82-58.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      William J. Doran, Jr., Baton Rouge, for defendants-appellants.
    Gist, Methvin, Hughes & Munsterman, Victor H. Sooter, Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendants-appellees.
    Walter T. Gamard, II, New Orleans, Air-hart & Copenhaver, Teddy W. Airhart, Jr., Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This case was consolidated for trial with those of Dairyland Insurance Company v. David R. Stowell, et al, 417 So.2d 516 (La.App. 3rd Cir. 1982), and Select Insurance Company, et al v. Insured Lloyds, et al, 417 So.2d 516 (La.App. 3 Cir. 1982). The cases have remained consolidated on appeal, and, as the law and relevant facts are common to all three suits, our opinion herein, where appropriate, is equally applicable to each. Additionally, we render separate judgments, where appropriate, in the other two consolidated cases.

This case arises out of a head-on collision between an 18-wheeler driven by defendant, David Stowell, and a pickup truck driven by plaintiff, Barry Burris, which occurred on U. S. Highway 165, in LaSalle Parish, Louisiana. Also made defendants were Farmers Dairies (owner of the 18-wheeler), Select Insurance Company (Farmers Dairies’ insurer), Lester Easterling (the driver of a vehicle directly preceding the 18-wheeler), Insured Lloyds (Easterling’s insurer), and the State of Louisiana through the Department of Transportation and Development (State). After a non-jury trial the district court held in favor of plaintiff and against defendants’ Easterling, Insured Lloyds, and the State insólido, and awarded plaintiff judgment in the amount of $304,-119.74. All other principal and incidental demands were dismissed. Defendants East-erling and the State appeal, and defendants Stowell, Farmers Dairies, and Select Insurance Company have answered those appeals. Plaintiff has not appealed nor has he answered the appeals. We reverse in part, affirm in part, and render.

The facts surrounding the aforesaid collision are essentially undisputed. For several miles prior to the accident, the defendant Easterling was preceding Stowell’s 18-wheeler truck and trailer in a northerly direction on U. S. Highway 165. Some time prior to the date of the accident Mr. Easter-ling had installed on his vehicle (a flatbed truck used to carry tree stumps) twelve homemade metal pipes or bolsters which were placed at intervals around the perimeter of the flatbed in an upright or vertical position. These bolsters had at one time been attached by a single bolt to a sleeve, also installed by Mr. Easterling, to support said bolsters in their upright position. The bolsters were approximately four and one-half feet long, three and one-half inches in diameter, and weighed almost forty pounds.

Stowell was traveling at about 50 to 55 miles per hour and gaining on the Easter-ling vehicle as the two drove northward up a long straight hill on U. S. Highway 165. When Easterling’s vehicle was still over 900 feet from the crest of the hill, and Stowell was some 60 to 80 yards following, Easter-ling’s vehicle passed over a hump in the roadway allegedly causing one of the unsecured bolsters in the back of his truck to slip out of its sleeve directly into the path of Stowell’s 18-wheeler. Stowell took evasive action by veering to his left into the southbound lane of traffic in order to miss the projectile. He was successful in avoiding the pipe, but as he proceeded back into his lane of travel he collided with plaintiff’s vehicle which was proceeding in the opposite direction. Apparently, plaintiff upon seeing the 18-wheeler moving into the southbound lane of traffic directly in front of him slammed on his brakes, went into a spin, and eventually collided with Stowell in the northbound lane of traffic. The only issues presented on appeal concern:

(1) The liability of the State through the Department of Transportation and Development;

(2) Quantum.

LIABILITY OF THE STATE

The trial judge in reasons orally assigned found that the hump the Easterling vehicle traversed was between two and three inches high, however, the record indicates that those who actually measured the hump, as opposed to those who approximated its height, found it was actually two inches rather than three inches in height. The trial judge held that despite the Department of Transportation and Development’s knowledge of same, it (the hump) was allowed to remain uncorrected for several weeks prior to the accident. The district judge further held that the hump created an unreasonable risk of injury (or was defective), and therefore found the State liable in negligence (finding that the State had knowledge of the hump) as well as in strict liability. We disagree.

In Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3rd Cir. 1975), this Court addressed the issue of the State’s liability in negligence as follows:

“The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974); Dupre v. Louisiana Department of Highways, 154 So.2d 579 (La.App. 3 Cir. 1963); Mistich v. Matthaei, 277 So.2d 239 (La.App. 4 Cir. 1973); St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (La.1964).”

When one’s basis for recovery lies in strict liability rather than in negligence, the plaintiff is relieved of proving the State’s knowledge, constructive or otherwise, of the hazardous condition or defect. Kent v. Gulf States Utilities, et al., 418 So.2d 493 (La. 1982). In this case it is not contested that the State had knowledge of the hump in question. Consequently, our review concerns itself with determining whether the hump created a hazardous condition or was defective.

“Unreasonableness” is a traditional standard for the determination of negligence. It is also fundamental to a finding of strict liability under La.C.C. Article 2317. Kent v. Gulf States Utilities, supra. Not every minor imperfection or irregularity in the roadway can be said to be patently dangerous (defective) or create an unreasonable risk of injury within the parameters of La.C.C. Articles 2315 and 2317. In the present case, we feel that the two inch hump in the roadway was not of such magnitude as to constitute a defect.

A review of the record and photographs contained therein reveal that the hump in question was a gradual hump, as opposed to a sharp protruding bump, apparently caused by compression of the pavement. Although we recognize that such conditions are not particularly desirous and may even be annoying to motorists, we refuse to enlarge the scope of the state’s liability and to hold it responsible whenever it can be shown that roadway conditions exist whieh are less than perfect because of minor irregularities in the road’s surface. The record is void of any evidence tending to show that this particular hump in and of itself was obviously dangerous or created an unreasonable risk of injury to ordinary prudent motorists who pass over it.

In holding against the State the trial judge also held that defendant Easterling was liable to plaintiff in negligence as well as in strict liability. He held that although Easterling had previously passed over the hump on numerous occasions, Easterling approached this particular stretch of roadway without exercising any added degree of caution, even though the vehicle he drove was patently dangerous and defective, i.e., the bolsters were improperly anchored to the bed of his truck. The record reflects Easterling testified that quite a few of the bolsters were missing from the back of his truck indicating that he had lost other bolsters on the same strip of highway shortly before this accident. Easterling further admitted that he was concerned about the approaching hump not because it was particularly large or may cause him to lose control of his truck, but rather “. .. It was just a bump you got whenever you jumped over it fast.”

In view of the above, we feel that the sole proximate cause for the bolsters coming loose resulted from the negligence of Easterling who failed to adequately secure the support pipe to the flatbed of his truck. We find no basis of liability on behalf of the State. The two-inch sloping hump present in this case does not amount to a defect, nor was it reasonably forseeable that anyone would take to the highways in a vehicle so patently defective that even the slightest jolt might cast these bolsters onto the roadway. Accordingly, we reverse that portion of the trial court’s decision casting the State in judgment.

QUANTUM

The trial judge made the following factual determination concerning plaintiff’s injuries:

“... I find that he has suffered permanent residual disability. I find that he suffered total disability for a long period of time. I find that he lost his ability to engage in the brick laying job that he was in at the time of the accident and I find that he suffered trauma over most of his person. He was trapped in a vehicle for a short while in great pain. He was removed then by ambulance from the scene to Hartner Hospital and then transported to Rapides Hospital in Alexandria where he was found to be suffering from fractures of the right femur, right tibia, right fibula and talus. He suffered a torn and lacerated spleen and a torn and lacerated liver. He experienced pulmonary insufficiency syndrome, collapsed lung and shocked lung. The shocked lung was a complication resulting from the many blood transfusions that he was given. As a result of this variety of injuries he had to be put on a respirator for a while, and it was necessary that he be operated on and given a tracheotomy. He was actually operated on on three separate occasions. His spleen was removed, and after that surgery they had to go back, as the doctor said, sort of unusually, because it appeared that all bleeding had been stopped and then after a short period of time they had to go back in to stop unexpected bleeding. He suffered a hernia as a result of all surgery that he had had and that had to be repaired. They had to put pins in his leg, some of which were not removed until May of 1980. He was in traction for a long period of time. He was in casts for a long period of time. All the medication and everything that he was given caused him to suffer stomach problems; an acid stomach or a peptic ulcer. He has extensive scars on his person. His right leg, his torso and his throat. His right leg is an inch and one-half shorter than the left leg. He suffered all kinds of bruises and other things that were incidental to this galaxy of problems that I have just described.”

Additionally, plaintiff incurred $33,869.74 of medical expenses, lost income, and has suffered permanent residual disability.

Before an appellate court can disturb an award made by the trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. See Reck v. Stevens, 373 So.2d 498 (La.1979) and the cases cited therein. We have closely reviewed the record before us, and find no clear abuse of the trial judge’s discretion, therefore, we affirm the award for quantum.

DECREE

For the above and foregoing reasons the judgment of the trial court is reversed in part, affirmed in part, and recast as follows:

It is Ordered, Adjudged, and Decreed that there be judgment herein in favor of the plaintiff, Barry D. Burris, and against the defendants Lester Easterling, and Insured Lloyds, jointly and in solido, in the sum of Three Hundred Four Thousand, One Hundred Nineteen and 74/100 ($304,119.74) Dollars, limiting Insured Lloyds to the full amount under its policy limits of (10-20-10) Ten Thousand and no/100 ($10,000.00) Dollars — Twenty Thousand and no/100 ($20,-000.00) Dollars — Ten Thousand and no/100 ($10,000.00) Dollars, with legal interest thereon from date of judicial demand until paid. Costs at trial and on appeal are to be assessed against Lester Easterling and Insured Lloyds.

It is further Ordered, Adjudged, and Decreed that the cost of taking of depositions of plaintiff’s exhibit number 1 and number 2 depositions in the amount of Two Hundred Two and 50/100 ($202.50) Dollars be charged as costs of Court, and that the sum of Two Hundred and Fifty and no/100 ($250.00) Dollars each for the testimony of Doctor Gamburg and Doctor Edgerton be set as expert witness fees and, as such, be charged also as costs of Court.

It is further Ordered, Adjudged, and Decreed that there be judgment herein in favor of defendant, the State of Louisiana, through the Department of Transportation and Development, and against the plaintiff, Barry D. Burris, dismissing the plaintiff’s claim against said defendant.

It is further Ordered, Adjudged, and Decreed that all third party demands filed in conjunction with this action are hereby dismissed.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . The first suit (# 82-56) was brought by the insurer of Burris’ truck, Dairyland Insurance Company, to recover the sum of $1,231.66, the amount of the collision damages paid to Burris by Dairyland, and also for Mr. Burris’ $250.00 deductible.
      The second suit (# 82-57) was on behalf of Select Insurance Company to recover payments it made to Farmers Dairies under its collision coverage for the damages to the 18-wheeler driven by Mr. Stowell in the amount of $18,031.50.
      This suit was filed on behalf of Mr. Burris to recover damages for personal injuries which Burris suffered in the accident.
      All of the plaintiffs were defendants or third party defendants in one or more suits, and the State of Louisiana, through the Department of Transportation and Development was a defendant and third party plaintiff in ail three suits.

      . Insured Lloyds’ liability is limited to the extent of its coverage in its policy of insurance issued to defendant Easterling.

      . Stowell did not see plaintiff until immediately prior to impact, and Burris, who evidently is suffering from post traumatic neurosis, does not remember any facts concerning the accident.

      . Since plaintiff has not appealed the judgment of the district court dismissing defendants Sto-well, Farmers Dairies, and Select Insurance Company, that judgment has now become final, therefore, the issue of these defendants’ liability is not now before us.

      . Defendant Easterling’s appeal addresses the issue of quantum only.

      . Upon examining the photographs depicting the hump, it is almost impossible to ascertain any hump at all.

      . Ibid, at 5.


text:
    DAIRYLAND INSURANCE COMPANY, Plaintiff-Appellee, v. David R. STOWELL, et al, Defendants-Appellants.
    No. 82-56.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    William J. Doran, Jr., Baton Rouge, for defendants-appellants.
    Gist, Methvin, Hughes & Munsterman, Victor H. Sooter, Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendants-appellees.
    Walter T. Gamard, II, New Orleans, Air-hart & Copenhaver, Teddy W. Airhart, Jr., Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

For the reasons assigned in the case of Barry D. Burris v. Insured Lloyds, et al, 417 So.2d 511 (La.App. 3rd Cir. 1982), the judgment of the district court is reversed in part, affirmed in part, and recast as follows:

It is hereby Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiff, Dairyland Insurance Company, and against defendants, Lester East-erling and Insured Lloyds, in solido, in the full and true sum of One Thousand, Two Hundred Thirty-one and 66/100 ($1,231.66) Dollars, subject to a settlement agreement between the parties which is evidenced in the record.

It is further Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiff, Barry D. Burris, individually, and against defendants, Lester Easter-ling, and Insured Lloyds, insólido, for the full and true sum of Two Hundred and Fifty and no/100 ($250.00) Dollars;

It is further Ordered, Adjudged, and Decreed that there be judgment herein in favor of defendant, the State of Louisiana, through the Department of Transportation and Development, against the claims of plaintiff, rejecting plaintiff’s demands as to said defendant, and dismissing said defendant from this lawsuit.

Costs at trial and on appeal are to be assessed to defendants Lester Easterling and Insured Lloyds.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.