text:
    STATE In the Interest of Russell J. GIANGROSSO, Lonnie Ray J. Gros and Scott N. Hood.
    No. 13281.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.

      Alan J. Robert, Gonzales, Benjamin C. Vega, Jr., Donaldsonville, for the minors Russell J. Giangrosso, Lonnie Ray J. Gros and Scott N. Hood, appellants.
    Aubert D. Talbot, Dist. Atty., and Abbott Reeves, Asst. Dist. Atty., Napoleon ville, for State of La., appellee.
    Before ELLIS, EDWARDS and PONDER, JJ.
   ELLIS, Judge:

Russell James Giangrosso, Lonnie Ray Joseph Gros, and Scott Neal Hood are alleged to be delinquent juveniles because they violated the provisions of R.S. 14:42.1, forcible rape, on October 8, 1977. Giangrosso and Gros are charged with two separate offenses. After a full adjudication hearing, all of the juveniles were adjudicated delinquent, and committed to the Department of Corrections, Giangrosso and Gros for “a period not to exceed his twenty-first birthday,” and Hood for a period of one year and six months. All three juveniles have appealed to this court.

Defendants have ascribed six specifications of error. First, they allege that the court erred in permitting investigative officers of the State to remain in the courtroom while other witnesses were sequestered. The record reveals that counsel for the defense requested that the investigators for the State be sequestered. The District Attorney stated that he preferred that they remain in the courtroom. The following colloquy then took place:

“BY THE COURT: What is the basis of your objection, Mr. Vega?
BY MR. VEGA: Well, I think, like any other witness, they are going to be sitting in here, and I would prefer that they not have the input of any other witnesses prior to their testimony.
BY MR. TALBOT: Your Honor, I would simply say this. These investigators were not present when anything happened. There investigation only took place at a later date. They can neither confirm nor deny of their own knowledge what they saw or heard at the scene or anything that transpired in connection with this hearing. I would strongly urge that the Court keep the investigators present. And, of course, I have no objection, naturally, for the investigators representing the defense to also be present.
BY THE COURT: The Court will exempt the investigative witnesses from the rule. Let’s proceed.”

Two investigative officers testified as to the voluntary nature of certain statements made by the juveniles. One of them also testified as to some of the content of those statements. The testimony of the latter officer was for the purpose of impeaching the testimony of the three juveniles.

Article 69 of the Code of Juvenile Procedure provides, in part, as follows:

“On its own motion the court may, and on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order.”

It would have been better practice for the judge to place the investigative witnesses under the sequestration order. However, he does have some discretion in the application of the order and no prejudice has been shown by the defendants. If there was error, it was harmless under the circumstances of this case.

The second specification of error relates to the use of a statement given to the police by Brian Theriot, a defense witness, for the purpose of impeaching his testimony. On the night of the alleged offense, Theriot voluntarily gave a statement to the investigating officers. Some of the facts given in that statement were in direct contradiction to his testimony under oath at the trial. It was used by the State on cross examination, without objection by the defense. As a result, Theriot admitted to making a number of statements, which contradicted his testimony on direct examination.

On the following day, the defense asked to be allowed to view the statement. The State offered to introduce it into evidence, but refused to permit the defense to see it otherwise. The Court ruled that the defense was not entitled to see the statement.

In this court, it is urged that the State should have produced the statement on a motion for pre-trial discovery, since it might contain exculpatory evidence; and that the Court should have permitted full review of the statement at trial.

Under Article 59 of the Code of Juvenile Procedure, discovery in delinquency proceedings is regulated by the Code of Criminal Procedure. Under that Code, the State may not be required to produce the statements of witnesses or prospective witnesses on a motion for pre-trial discovery, unless they contain exculpatory material. Articles 718, 723, Code of Criminal Procedure: Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In State v. Linkletter, 345 So.2d 452 (La.1977) the Court said:

“On a number of occasions this Court has made clear that the decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), while requiring the prosecution to inform the defendant of exculpatory evidence, does not require the State to open its files to the defendant to search and decide what is exculpatory. (Citations omitted).
“These cases do not construe Brady v. Maryland to permit the defendant unlimited pretrial discovery. No fishing expedition is authorized by that decision and a pretrial in-camera inspection of the State’s file is not required. However, the cases do understand Brady v. Maryland to hold, in effect, that the State must, upon request, furnish the defense with evidence which is material to the issues and favorable to the defense. And, if it can be shown that the State, after request, has deliberately withheld from the trial specific evidence favorable to the defense, the error would warrant reversal of the conviction. State v. Tyler, 342 So.2d 574 (La.1977).”

In State v. May, 339 So.2d 764 (La.1976), the court announced the following principles:

“The high court, in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) held that
‘ * * * Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.’ 96 S.Ct. at 2399.”

The record in this case reveals that the defendants had requested, pre-trial, any exculpatory material which the State had, and the State had replied that it had no such material. At the trial, after the statement had been used by the District Attorney in his cross examination of Theriot, the defense asked to view the statement, which had not been used in its entirety, to see if it contained exculpatory material. During the colloquy which followed, the District Attorney stated, on one occasion, that he did not know if the statement contained exculpatory material. Later he appeared to deny that it contained exculpatory material. The defense made no request that the Court examine the statement in camera to see if it contained exculpatory material, although the statement was readily available for such inspection.

Under those circumstances, we do not believe that the defendants have made a sufficient showing that exculpatory material was contained in the Theriot statement, or that it should have been made available by the State pursuant to the pre-trial discovery motion.

At the trial, Brian Theriot admitted having made all the statements which contradicted his testimony given at the trial. The statement was therefore not admissible in evidence at that time. R.S. 15:493. Defendants have cited no law which would permit inspection of a statement of the trial which they could not have discovered pre-trial, other than a decision of this court in a civil case. We believe that inspection is an aspect of discovery, and therefore governed by the provisions of the Code of Criminal Procedure. We, therefore, find no error in the ruling of the trial judge.

The third specification of error relates to the alleged refusal of the court to permit the defense to make a proffer of evidence. The record shows that the State objected to a question asked by the defense, and the Court sustained the objection. Counsel for defense objected to the ruling and stated that he wanted to put his reasons for the objection in the record as a note of evidence. The State pointed out that his reasons could be included in a brief on appeal. The Court did not permit counsel for defense to make the proffer.

This ruling is, of course, correct. A proffer is used to set forth the nature of evidence, and not to preserve the reasons for an objection. Article 24, Code of Juvenile Procedure; Article 1636, Code of Civil Procedure.

Fourth, it is claimed that defense counsel, who represented different defendants, were unduly restricted in cross examination. The record shows that after counsel for Giangrosso and Gros had completed his cross examination of the first witness for the State, the District Attorney asked the Court not to permit counsel for Hood to ask the same questions on cross examination that had been asked by counsel for the other defendants. The Court ruled that, since the rules of civil procedure apply in a juvenile proceeding, he would not permit repetition of anything already covered. Thereafter, the Court sustained objections on five occasions to questions which were repetitious of questions asked by other counsel. The Court noted at one point that none of the evidence given by this witness tended to incriminate Scott Hood, client of the second counsel. The problem did not arise in connection with any of the other witnesses.

We find no error. Although cross examination was somewhat restricted, it was only in areas already covered by counsel for the other defendants, and as to matters which did not bear on the guilt or innocence of Scott Hood, who was the client of the attorney so restricted. Articles 19 and 74 of the Code of Juvenile Procedure require that juvenile proceedings be conducted in an orderly and expeditious manner. The trial judge has the duty of so conducting the proceedings. This includes, necessarily, the right to restrict unduly long or repetitious examination of witnesses by any counsel. His discretion in this respect was not abused herein.

Fifth, the defense contends that the State was improperly permitted to use oral statements made by the defendants, which had been suppressed by stipulation of the District Attorney, to impeach their testimony at the trial. The record shows that each of the boys made a statement on the night of the alleged rapes. These statements were given out of the presence of their parents and without the assistance of counsel, and were therefore clearly inadmissible as oral confessions. State in Interest of Dino, 359 So.2d 586 (La.1978).

Scott Hood testified that Jeff Wiley, the juvenile officer who questioned him, grabbed him around the neck and threatened him with physical violence if he did not tell the truth. Lonnie Gros stated that he looked through a glass set in the door of the interrogation room and saw Wiley with his hand on Scott’s throat, holding him against the wall. Mrs. J. T. Hood, Scott’s mother, testified that Scott showed her a red mark. She did not state where the mark was. She also stated that Scott told her the mark was made by a “man across the river,” and not by an employee of the sheriff’s office. No testimony was adduced that indicated that there was any improper conduct in taking the statements of Giang-rosso or Gros.

Officer Wiley testified that no threats, force, or violence were used on Hood or any of the boys; that they were fully advised of their constitutional rights and appeared to understand them; and that their statements were freely and voluntarily given.

The trial judge ruled that the statements were freely and voluntarily given and could be used to impeach the testimony given by the defendants on direct examination. After reviewing the record thoroughly, we find that the conclusion of the trial judge, which is entitled to great weight, is not manifestly erroneous.

Under the circumstances, the statements so made by the defendants may be used to impeach their testimony, even though not admissible as evidence of guilt. State v. Kent, 371 So.2d 1319 (La.1979).

Finally, it is urged that the record as a whole does not support a finding that the defendants are guilty beyond a reasonable doubt of the crime of forcible rape.

The two alleged victims of the crime were Robin and Windy Kelleher, who were aged 14 and 15 years at the time of the alleged crime. Robin testified that she was forced into a van belonging to Lonnie Gros by Giangrosso and Gros who held her down and started to undress her. Gros then got out of the van and Giangrosso locked it. She testified that, despite her resistance, she was raped by him, and that she was screaming throughout.

Gros denied being in the van. Giangrosso testified that Robin consented, after he told her that he would not go out with her if she did not “give him some.” All three of the defendants testified that there was no screaming coming from the van while Giangrosso and Robin were inside together, and that Robin was apparently calm when she got out of the van. Windy and Debbie McGuirk, who were also present, testified that there was screaming coming from the van, and that Robin was crying when she got out.

After the incident in the van, the girls asked Giangrosso to take them home and he refused. They then asked Gros, and he refused. The girls started to leave, and the second incident occurred. According to Windy, as she and the girls were walking away, the boys came after them and grabbed Windy. She was thrown to the ground and undressed, and then the three boys took turns raping her. She testified that she was fighting and screaming, that she was hit, threatened and forced to say things and that they put sand in her mouth.

The two other girls testified that as they were leaving, the boys chased them and caught Windy. They continued to run away. Debbie McGuirk stated that she saw Windy knocked to the ground.

The boys all testified that as the girls were leaving they were told that they could have a ride home if they would “give (the boys) some.” Two of the girls refused, but Windy said, “It might as well be me.” She voluntarily disrobed and permitted each of them to have intercourse with her. In the meanwhile, Robin and Debbie had summoned the police.

The only other witness to the incidents was Brian Theriot. Brian’s testimony on direct supported that of the defendants. However, on cross examination, he admitted to having made the statements to interrogating officers on the night of the incidents which supported the testimony of the girls, including statements which indicated that he thought the girls were being forced, and that when Giangrosso and Robin were in the van together that it sounded like rape to him.

Article 73 of the Code of Juvenile Procedure provides, in part:

“If the petition requests that the child be adjudicated a delinquent, the state shall prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.”

In juvenile proceedings, the scope of review of this court extends to both law and fact. Article 5, Section 10, Constitution of 1974; see State in Interest of Batiste, 367 So.2d 784 (La.1979). We must, therefore, decide if the trial judge was clearly wrong in his determination that the defendants were proven guilty beyond a reasonable doubt.

In reaching his conclusion, the trial judge had to believe the testimony of the three girls, and reject that of the defendants. This, of course, is a determination, based on credibility, which the trial judge is in a better position to make than we. However, we further note that there is ample evidence from which one can conclude that much of the testimony given by the defendants at the trial was impeached by their own statements given on the night of the incident.

After carefully considering the entire record, we conclude that we cannot say that the trial judge was manifestly erroneous or clearly wrong in his finding that the defendants were guilty as charged beyond a reasonable doubt.

The judgments appealed from are therefore affirmed.

AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Sylvia BLOUNT v. Eldon Roy BLOUNT, Sr.
    No. 13272.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Writ Refused June 13,1980.

      Michael W. Lee, Livingston, for plaintiff.
    Ralph L. Roy, Baton Rouge, for defendant.
    Before ELLIS, EDWARDS and PONDER, JJ.
   PONDER, Judge.

In this suit for specific performance, defendant appealed. The issues are the validity of the community property settlement, lesion and prescription.

We affirm.

Plaintiff and defendant, wife and husband, were legally separated in 1968. They entered into a notarized agreement by which, among other things, defendant agreed to convey all of his interest in the immovable property to plaintiff upon her assuming all mortgage payments. Plaintiff paid the mortgage. When defendant refused to convey the property upon demand, she sued for specific performance.

Defendant asserts that the agreement was insufficient to be effective as a community property settlement and was invalid because of lesion.

We conclude that the agreement was intended to be a community property settlement and that any ambiguity has been cured by action of the parties.

The agreement can be attacked for lesion. Beatty v. Vining, 147 So.2d 37 (La. App. 2nd Cir. 1962). C.C. Art. 1861(1). However, prescription has accrued by the lapse of four years. C.C. Art. 1876.

Furthermore, there was no proof of the values of the community and of the immovable at the time the instrument was signed. To prove lesion the evidence must be clear and exceedingly strong. Alexander v. State, Dept. of Hwys., 342 So.2d 1201 (La.App. 2nd Cir. 1977). Emile v. Ruiz, 144 So.2d 479 (La.App. 4th Cir. 1962).

Therefore, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . C.C. Art. 1861(1):
      “The law, however, will not release a person of full age, and who is under no incapacity, against the effect of his voluntary contracts, on account of such implied error or imposition, except in the two following cases:
      1. In partition where there is a difference in the value of the portions to more than the amount of one-fourth to the prejudice of one or [of] the parties;

      . C.C. Art. 1876:
      “Actions for lesion are limited to four years, to date from the time of the contract between the persons of full age, and from the age of majority in contracts of minors.”


text:
    Francis M. BATES v. FOREMOST-McKESSON, INC.
    No. 13274.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Writ Granted July 7, 1980.
    Michael W. McKay, Baton Rouge, for plaintiff-appellant Francis M. Bates.
    David Donnell Moss, Baton Rouge, for defendant-appellee Foremost-McKesson, Inc.
    Before ELLIS, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit for damages for wrongful firing. The trial court sustained an exception of res judicata and plaintiff appealed.

The issue is whether there was an identity of parties.

We reverse and remand.

Plaintiff, a member of Teamsters Local 270 which had a collective bargaining agreement with defendant, was discharged because of negligence resulting in damage to company property. The local filed a grievance and went through the arbitration provided for in the contract; the grievance was denied. Plaintiff later filed this suit, defendant raised the exception of res judi-cata which was sustained.

In order for res judicata to apply in Louisiana there must be identity of the parties, identity of the cause, and identity of the thing demanded. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978). Res judicata is strictly and narrowly interpreted in this state.

The award of an arbitrator has the effect of a final judgment and can be the basis of an exception of res judicata in a suit between the parties to the arbitration. Bergeron v. Gassen, 185 So.2d 106 (La.App. 4th Cir. 1966) and Housing Authority of New Orleans v. Henry Ericsson Co., 2 So.2d 195, 197 La. 732 (La.1941).

However, plaintiff was not a party to the arbitration. The arbitration was between the parties to the collective bargaining agreement, the union and the defendant. Plaintiff was not a party to this contract and could not have brought the matter to arbitration himself under the terms of the contract; only the union had the authority to do so. It is true, as appellee contends that if the local had been acting as the agent for plaintiff in the arbitration, the parties would be the same. It is also true that plaintiff was the object of the arbitration. However, we do not believe that the local was acting as the agent for plaintiff as that term is normally understood. The local was a party to the collective bargaining agreement, it could invoke the arbitration procedure. Plaintiff could not. The local had an interest in the grievance procedure beyond the welfare of plaintiff individually. Any doubt that it was acting solely as plaintiff’s agent and representative has to be resolved against appel-lee.

The judgment of the trial court is reversed at appellee’s costs. The matter is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.


author: GARRISON, Judge.

text:
    Jeanne ROUSSEL v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 10952.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    Floyd F. Green, New Orleans, for defendant-appellant.
    Sciambra, Souhlas & Edwards, Ernest N. Souhlas, Metairie, for plaintiff-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, granting to plaintiff, Jeanne Roussel, damages in the amount of $5,742.17, including $742.17 medicals, for injuries sustained by her when she slipped and fell while alighting from a public bus operated by the defendant. Plaintiff argued that she slipped and fell on an area of the steps where the protective rubber matting had been rubbed or worn away, leaving an exposed and slippery surface. From that judgment, which we affirm, defendant appeals.

The appellant argues that the trial court erred both in finding defendants negligent and failing to find plaintiff contributorily negligent.

Photographic exhibits presented by the defendant as NOPSI # 3 and # 4 show a clear wearing away of part of the rubber surface. In holding defendant liable, the trial judge in his written reasons for judgment, relied upon Davis v. Owen, 368 So.2d 1052 (1979) and Wise v. Prescott, as cited therein:

“Because plaintiffs were fare-paying passengers on a public conveyance and were injured, defendant NOPSI had the burden of proving that it was without the slightest degree of negligence. As this Court stated in Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963).
‘The mere showing of injury to a fare paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case.
* * * * * sit
A public carrier of passengers while not an insurer is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence.
******
The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted to prevent injury to passengers, the carrier being held liable for the slightest negligence with reference to the exercise of such care.’ (citations omitted.)” At 1055.

It is clear that in the instant appeal, the defense did not prove that it was “without the slightest degree of negligence” by virtue of its own exhibits.

On the issue of contributory negligence, there is nothing contained within the record to show that plaintiff was negligent in any manner. At the time of the accident, she was 54 years old. She was wearing heels measuring approximately one and one-half inches. She stated that she observed the steps and continued to watch them as she alighted from the bus.

In light of the evidence presented, this court cannot conclude that the district court was manifestly erroneous. Canter v. Koehring Co., 283 So.2d 716 (1973); Arceneaux v. Domingue, 365 So.2d 1330 (1978).

Accordingly, the judgment of the district court is affirmed.

AFFIRMED.


text:
    Nathan P. BOUDREAUX v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 13285.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.

      See also, La.App., 385 So.2d 485.

      Victor L. Marcello, Donaldsonville, Robert L. Picou, Houma, for plaintiffs and ap-pellees Nathan P. Boudreaux and Mary Ar-mond.
    Robert B. Butler, III, Houma, for defendant and appellant, State Farm Mut. Auto. Ins. Co.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

These are two tort suits arising from a one vehicle accident. We intend no discourtesy by the use of given names; we find it necessary to distinguish the different Bou-dreaux’s.

Michael Boudreaux (Michael), a minor, agreed to purchase a car from Jerry Aucoin for $450.00. After Michael paid $300.00 in installments, Aucoin’s attorney drew up a bill of sale and a promissory note for $150.00. Michael signed the note and took possession of the vehicle. He kept the car at his sister’s home for several days, but then drove the car home and to work that night.

The next day, Michael’s father, Nathan Boudreaux (Nathan) objected to Michael’s having the car and took the keys from him, saying he would not be responsible for his son’s driving the car. There is some confusion concerning whether or not Nathan would have permitted Michael to keep the car if someone else had agreed to be responsible for it. Michael apparently tried unsuccessfully to convince his mother and his sisters to assume the responsibility.

Nathan spoke to Aucoin’s parents and told them he would not be responsible for the car. He subsequently spoke to Aucoin and told him Michael was a minor and that he would not be responsible for the car. Aucoin agreed to come to some agreement to take the car back.

Nathan gave Michael the car keys with the understanding Michael was to meet Au-coin in Thibodaux and return the car. Instead, Michael met a friend, John Bou-dreaux (John), not related to him, and they decided to drive to California.

The boys picked up two hitchhikers in Texas. Michael asked one of them to drive so he could rest. Approximately 10 hours later, while still in Texas, the hitchhiker-driver veered close to a truck, pulled sharply on the steering wheel and pushed down on the accelerator. The car swerved off the road and rolled over several times. Michael, who was asleep in the front seat, was killed instantly. John suffered a broken back and other injuries. The hitchhikers were only slightly injured. Their whereabouts are now unknown.

Nathan sued State Farm Mutual Auto Insurance, his insurer on two other vehicles, for damages for the wrongful death of his son. John’s parents sued Nathan and State Farm for their son’s injuries.

The trial court found that the driver’s gross negligence was the cause of the accident; that neither Michael nor John was neither negligent nor contributorily negligent, and neither had assumed the risk; that the driver was an uninsured motorist at the time of the accident; that the vehicle involved was a non-owned vehicle and had not been furnished for the regular use of Michael under the terms of the State Farm policies; that the two policies should be stacked to provide $55,000.00 uninsured motorist coverage per person and $110,000.00 per accident; that the sale entered into by Michael was null and void. The trial court permitted all parties to recover from State Farm. Michael’s parents recovered $55,-000.00 for the wrongful death of their son. John recovered $55,000.00 for his injuries.

The issues are: Was the hitchhiker-driver negligent? Was Michael negligent or con-tributorily negligent? Was John negligent or contributorily negligent? Was the sale to Michael an absolute nullity? If not, did Michael own the car or had the sale been nullified? Was the car an unowned vehicle under the terms of the policy? Was it furnished for the regular use of Michael? Did Michael have permission to drive the car? Did the hitchhiker-driver become a second permittee? Has the driver been proved to be an uninsured motorist? Is Nathan entitled to recover under the uninsured motorists provision of his policies? Is John entitled to recover under the uninsured motorist provision of Nathan’s policies? Was an excessive award given to Michael’s parents?

NEGLIGENCE

The trial court found that the hitchhiker-driver was negligent. This conclusion is not being seriously contested on appeal. We agree.

Michael was found to be not negligent. We agree. He was not operating the vehicle at the time of the accident; he was asleep. It is argued that he was negligent by allowing the hitchhiker to drive. John, the only witness to testify said he had found no cause to question the driver’s competency until the accident occurred. We find insufficient proof of negligence in allowing him to drive.

There was no proof of John’s negligence.

We therefore find no negligence, either primary or contributory, on the part of Michael or John. There being no negligence on the part of Michael, Nathan cannot be held liable therefor.

OWNERSHIP OF THE CAR

Contrary to this circuit’s holding in Ellis Electric Co. v. Allstate Ins. Co., 153 So.2d 905 (La.App. 1st Cir. 1963) a contract entered into by a minor is not an absolute nullity but rather a relative nullity. La. C.C. Arts. 1785, 1791 and 3542. Harris v. Ward, 224 So.2d 517 (La.App. 2nd Cir. 1969), Scott v. Continental Ins. Co., 259 So.2d 391 (La.App. 2nd Cir. 1972).

The sale between Michael and Au-coin was valid but voidable. The question then becomes was the sale voided by Nathan’s actions or was the car owned by Michael at the time of the accident.

Nathan informed Aucoin of Michael’s minority and his refusal to take responsibility for the car. Nathan had the authority under C.C. 1794 to either confirm or annul the contract on behalf of his minor son. He left no doubt that his intent was to disaffirm the contract. In the case of a minor’s contract, restitution need not be made before the contract can be declared null. D. H. Holmes Co. v. Rena, 34 So.2d 813 (La.App. Orleans, 1948). Therefore, we hold that the contract had been disaffirmed at the time of the accident.

Under the terms of the policies, a non-owned vehicle is an automobile not owned or furnished for the regular use of either the named insured or any relative. State Farm argues that the vehicle was for the regular use of Michael.

The facts of this case point to the opposite conclusion. Michael was forbidden to use the car. The keys were taken from him. Regular use must be more than casual or incidental use. Moreau v. Keller, 144 So.2d 281 (La.App. 4th Cir. 1962); Diagle v. Chastant, 271 So.2d 290 (La.App. 3rd Cir. 1972); cf. Romano v. Girlinghouse, No. 13, 198, decided March 31, 1980. The facts indicate that the use of the vehicle was merely incidental to returning the car to Aucoin. There is a question of whether the deviation by Michael changed the use of the car from being merely incidental or casual to regular use. At the time of the accident, Michael had had the car under his control for approximately 24 hours. However, we hold the use was still incidental or casual. The fact that Michael intended to take the car to California and use it regularly in the future is irrelevant.

We therefore hold that the vehicle was a non-owned vehicle not furnished for the regular use of Michael.

PERMISSION TO DRIVE

Aucoin at least impliedly gave Michael permission to drive the vehicle with the intention that the car be returned to him. Though the permission was limited, deviations by the initial permittee, given expressly or impliedly, are immaterial for purposes of insurance coverage. Gathe v. Aetna Casualty & Sur. Co., 345 So.2d 117 (La.App. 1st Cir. 1977) writ refused, 346 So.2d 709.

However, we hold that the hitchhiker was not a second permittee driver. In Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977) and Hughes v. Southeastern Fidelity Ins. Co., 340 So.2d 293 (La.1976), the Supreme Court found certain specific circumstances in which a permittee driver can give permission to a second permittee. It has even been argued that permission to use should always include the right to give permission to a second permittee. However, in this case, no discretion was given to Michael, certainly not to allow someone else to drive the car while en route to California. He was to drive the car for the purpose of returning it to Aucoin. He certainly did not have any discretion to allow a second permittee to drive it. It was not foreseeable that Michael would allow any one else to drive the car. Therefore, the hitchhiker was not a second permittee driver.

RECOVERY UNDER UNINSURED MOTORIST PROVISIONS

The above reasoning forces the conclusion that the car was not covered under the liability portions of Nathan’s policy.

State Farm argues that the plaintiffs have not proved that the driver was uninsured. The statement from the Department of Public Safety does not comply with the literal terms of La.R.S. 22:1406d(6), which, however, is not the exclusive method of proving the non-existence of a liability insurance policy. See Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 (1972). We have held above that Nathan’s policies did not afford coverage. There is creditable evidence that there was no other insurance covering the driver’s operation. We agree with the trial court’s conclusion.

The recovery is then limited to the uninsured motorist provisions of State Farm’s policies.

A relevant provision of those policies is:

“ ‘Insured’ means:
(a) The named insured and any relative;
(b) any other person while occupying an insured automobile; and
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this Part applies sustained by an insured under (a) or (b) above.”

Clearly, both Nathan and Michael were insureds and recovery for Michael’s death was proper.

John’s situation is quite different. He is not the named insured under Nathan’s policy nor is he a relative of Nathan. The definition of insured automobile under the uninsured motorist coverage includes a non-owed automobile only while being operated by the named insured. John would not be entitled to recovery because of injury to another. We are therefore unable to find that he was an insured under Nathan’s policies so as to be entitled to recovery thereunder.

DAMAGES

State Farm complains of the amounts awarded to Nathan, Michael’s father, and Mary Armond, his mother.

Awards given in other cases are not binding on the court. Each set of facts determines what the appropriate award for that case will be. Michael was a troubled child. However, there is much evidence of a close relationship with his mother and father. The instances when he stayed away from home for a night or two were not to escape a bad home situation. He went to New Orleans and Lafayette on several occasions for fun. His father, in particular, aided Michael in every way he could to receive an education. His father also encouraged him when he decided to work.

The awards to Nathan, Michael’s father, and to Mary Armond, Michael’s mother, are high but not excessive. They are within the discretion of the trial court.

For these reasons, the judgment in No. 13,285, Nathan P. Boudreaux v. State Farm Mutual Insurance Company, is affirmed at appellant’s costs.

AFFIRMED.


text:
    John R. BOUDREAUX, Individually and on Behalf of John R. Boudreaux, Jr. v. Nathan P. BOUDREAUX, State Farm Mutual Automobile Ins. Co., et al.
    No. 13286.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.
    John T. Pettigrew, Houma, for plaintiff and appellant, John R. Boudreaux, Sr.
    Alex A. Lopresto, III, New Iberia, for defendant and appellee, Nathan P. Bou-dreaux.
    Robert B. Butler, III, Houma, for defendant and appellant, State Farm Mut. Auto. Ins. Co.
    John R. Walker, Houma, for defendant, Jerry A. Aueoin.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

For the reasons assigned in No. 13,285, Nathan P. Boudreaux v. State Farm Mutual Automobile Insurance Company, 385 So.2d 480, there is judgment herein reversing the judgment herein and dismissing plaintiff’s suit at his costs.

REVERSED AND RENDERED.


author: ELLIS, Judge:

text:
    Leola M. FACUNDUS v. STATE of Louisiana, DEPARTMENT OF HEALTH & HUMAN RESOURCES, et al.
    No. 13287.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Clayton S. Knight of Knight & Brum-field, Franklinton, for plaintiff.
    Arthur J. O’keefe of O’keefe, O’keefe & Berrigan, New Orleans, for defendants.
    Stephen T. Victory of Liskow & Lewis, New Orleans, for third party defendants.
    Before ELLIS, COVINGTON and PONDER, JJ.
   ELLIS, Judge:

This is a suit by Leola M. Facundus for Workmen’s Compensation benefits allegedly due as the result of an accident in which she fell and aggravated a pre-existing back injury. Defendants are the State of Louisiana, Department of Health and Human Resources, and Rockwood Insurance Company, its insurer. After filing answer, the State and Rockwood filed a third party petition, impleading Levelle Fortenberry, Michael W. Dufrene and Canal Insurance Company, and asking for indemnity or contribution, in the event plaintiff should prevail herein.

According to the third party petition, Mrs. Facundus first injured her back in an automobile accident which was allegedly due to the negligence of Mr. Dufrene, who was operating a truck owned by Mr. For-tenberry and insured by Canal. It is further alleged that the major cause of plaintiff’s disability is the injury suffered in the automobile accident, and that the third party defendants should pay all or part of the workmen’s compensation benefits paid by the State and Rockwood to plaintiff.

To the third party petition, third party defendants filed a declinatory exception of lis pendens and dilatory exceptions of improper cumulation of actions and improper joinder of parties. It is alleged that there is pending, in the Twenty-Second Judicial District Court, a suit entitled “Leola M. Facundus v. Canal Insurance Co., Levelle Fortenberry and Michael Dufrene,” No. 50026, filed on September 16, 1977. It is further alleged that the said suit is “between the same parties, in the same capacities, on the same cause of action, and has the same object as does the Third Party Petition filed herein.” Both exceptions appear to be based on the same grounds.

After a hearing, both exceptions were maintained by the trial judge, and the third party demand was dismissed with prejudice. From the judgment of dismissal, defendants-third party plaintiffs have appealed.

No note of evidence appears in the record, but, from the briefs of the parties, we find the following facts to be established, since admitted therein.

1. The suit entitled “Leola M. Facundus v. Michael Dufrene, Levelle Fortenberry and Canal Indemnity Company," No. 50026 of the docket of the Twenty-Second Judicial District Court for the Parish of St. Tammany, was filed on September 16, 1977.
2. Mrs. Facundus allegedly fell and injured her back, while in the course and scope of her employment, on January 2, 1977.
3. This suit was filed on October 23, 1978.
4. On April 27, 1979, the third party petition herein was filed.
5. On May 22, 1979, Rockwood intervened in the first suit, No. 50026, asking for judgment against Dufrene, Fortenberry and Canal for all amounts paid as workmen’s compensation benefits to Mrs. Facundus.
6. On June 6, 1979, these exceptions were filed in this suit.

Article 1034 of the Code of Civil Procedure permits defendant in an incidental action to plead exceptions available to a defendant in a principal action. Article 531 of the Code of Civil Procedure provides:

“When two or more suits are pending in a Louisiana court or courts on the same cause of action, between the same parties in the same capacities, and having the same object, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.”

In this case the two actions between the parties are the third party action filed in this suit and the intervention filed in the St. Tammany Parish suit. Since the third party action herein was filed before the intervention, the exceptors are not entitled to have it dismissed, even if all of the other requirements of Article 531, supra, are met. We therefore pretermit consideration of the questions of identity of cause of action, parties, capacity and object. The exception should have been overruled because the third party action herein was the first filed between these parties.

The dilatory exceptions filed herein are based on the same factual allegations. There is no basis in law for a finding of improper cumulation of actions or improper joinder of parties in this case.

The judgment appealed from is therefore reversed and set aside, and there will be judgment in favor of the State of Louisiana and Rockwood Insurance Company, overruling the exceptions filed by Fortenberry, Dufrene and Canal Insurance Company, and remanding the case to the trial court for further proceedings according to law. Third party defendants shall pay all costs of this appeal. All other costs shall await final determination hereof on the merits.

REVERSED AND REMANDED.


author: COVINGTON, Judge.

text:
    STATE of Louisiana v. Bobby R. VICKERS.
    No. 13288.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Bryan E. Bush, Jr., Baton Rouge, for defendant-appellant Bobby R. Vickers.
    J. Michael McDonald, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee State of La.
    Before ELLIS, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

This is an appeal by the defendant, Bobby R. Vickers, from a judgment of the District Court decreeing the defendant to be an Habitual Offender as defined by LSA-R.S. 32:1472, prohibiting him from operating a motor vehicle upon the highways of the State of Louisiana and ordering the defendant to surrender to the District Court all licenses and permits to operate a motor vehicle upon the state highways. We affirm.

The facts are not in dispute. The defendant admittedly was convicted on March 25, 1974 of DWI; on July 30, 1974 of DWI; on December , 1975 of DWI; and on April 26,1976 of revocation violation. He admitted his four convictions within the five year period.

On appeal, the defendant first complains that the action to have him adjudged an Habitual Offender and to bar him from operating a motor vehicle upon state highways was not timely instituted, inasmuch as the petition was not filed until 14 days after the receipt of the abstract of the record despite the requirement of LSA-32:1474 that the petition shall be filed within ten days of the receipt of the abstract. This question has been decided adversely to the defendant’s position in State v. Skyeagle, 345 So.2d 189 (La.App. 3rd Cir. 1977), writ denied, 347 So.2d 261 (La.1977), where the Court specifically held that this was merely a directory, provision rather than a statute providing a prescriptive period for filing suits under the Motor Vehicle Habitual Offender Law. We agree with this interpretation of LSA-R.S. 32:1474, and consider the defendant’s argument on this point to be without merit.

It is established that the fundamental purpose of the Motor Vehicle Habitual Offender Act is to promote highway safety by denying driving privileges to habitual traffic law offenders. That portion of the Act with which we are now concerned is civil in nature. State v. Page, 332 So.2d 427, 429 (La.1976).

In that case, the State Supreme Court stated:

“One purpose of the Act is, of course, to discourage repetition of criminal acts, but this alone is not sufficient to give the Act a penal character since deterrence of wrongful criminal conduct while often an object of criminal statutes may be an objective of a regulatory statute as well. See McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 57 L.Ed. 754 (1913); United States v. Kordel, 164 F.2d 913 (7th Cir. 1947), aff’d, 335 U.S. 345, 69 S.Ct. 106, 93 L.Ed. 52 (1948).
“There are, of course, features of the Act not now before us which are penal, or criminal. For instance, 32:1480 may result in imprisonment for driving while classified as a habitual offender. However, this is an independent feature of the Act separate and distinct from the revocation proceeding.
“The two appellate courts in this state which have reviewed the statute have determined that the revocation proceeding is indeed a civil action. State v. Free, 321 So.2d 50 (La.App. 3rd Cir. 1975), writs refused, 325 So.2d 272; State v. Love, 312 So.2d 675 (La.App. 2nd Cir. 1975), writs refused, 317 So.2d 627. In State v. Love, supra, at 677, the Second Circuit held that the revocation proceeding was a civil matter for these reasons:
“ ‘The Motor Vehicle Habitual Offender Law authorizes both civil and criminal proceedings against a person related to his operation of a motor vehicle. The initial suit to have a person declared an habitual offender and to revoke his license is a civil matter. It does not involve loss of liberty or threat of incarceration, but its object is the protection of the public in removing from the highways a dangerous driver. R.S. 32:1474-78. On the other hand, two additional proceedings authorized by R.S. 32:1480 and 1481, which may result in enhancement of statutory penalties and imprisonment for driving while classified as an habitual offender, are clearly criminal actions. A previous civil declaration of habitual offender status is essential to the success of any subsequent criminal proceeding, but such prosecutions are necessarily separate and distinct from the civil revocation proceeding.’ ”

We now turn to the problem of prescription of the action, since it was not brought until three and one-half years after the last conviction for DWI. The defendant does not urge that any particular prescriptive period or prescription provision is applicable, but merely contends that the lapse of 3V2 years suffices to bar the proceedings instituted against him on May 7, 1979 (actually filed on March 26, 1979). The doctrine of laches is not recognized in Louisiana. Our attention has not been directed to any particular statute providing a specific time limitation for the bringing of the action to adjudicate a person as a motor vehicle habitual offender. In view of this absence of a specific prescriptive period, we find that the general prescription of ten years applicable to all personal actions, except those specifically provided for, governs this action. See LSA-C.C. art. 3544.

Accordingly, we affirm the judgment of the District Court at appellant’s costs.

AFFIRMED.

      . LSA-R.S. 32:1474 provides:
      “The district attorney, upon receiving the aforesaid abstract from the department, shall forthwith and within ten days after receipt of the abstract file a petition against the person named therein in the criminal district court for the parish wherein such person resides or, in the case of a nonresident, in the criminal district court of East Baton Rouge Parish. If the court is not in session when the aforesaid abstract is received by the district attorney or within ten days after its receipt, the district attorney shall file the petition within ten days after the court again convenes. The petition shall request the court to determine whether or not the person named therein is an habitual offender, and the court shall make its determination within thirty days after the petition is filed.”


text:
    Donald Lynn SUMMERS v. SUMMERS BROTHERS, INC.
    No. 13289.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.

      Cyrus Greco and Arthur A. Vingiello, Baton Rouge, for plaintiff-appellant, Donald Lynn Summers.
    Joel B. Dickinson, Baton Rouge, for defendant-appellee, Summers Bros., Inc.
    Charles H. Braud, Jr., Baton Rouge, for intervenor-appellant, Laurence L. Summers.
    Before ELLIS, COVINGTON and PONDER, JJ.
   PONDER, Judge.

This is a suit for breach of contract and rescission of a sale. The trial court found for defendant and plaintiff and intervenor appeal.

We affirm.

Plaintiff’s sale of property to defendant was by an authentic act. Plaintiff asserted that his intention was to transfer the property to defendant for convenience only, to be later transferred to his father, the inter-venor, when a tax lien against the latter was lifted. Defendant ultimately refused to transfer the property and plaintiff filed suit claiming fraud and error. Plaintiff’s father intervened.

An authentic act for the sale of real property is full proof of its contents; parol evidence cannot be used to attack it unless there are allegations and proof of fraud or error, in the absence of a counter-letter or interrogatories and admissions of fact. Morrison v. Richards, 343 So.2d 375 (La.App. 4th Cir. 1977), writ denied 345 So.2d 503. Fraud is never presumed but must be proved by clear and convincing evidence. Valvoline Oil Co. v. Krauss, 335 So.2d 64 (La.App. 3rd Cir. 1976).

There was no eounterletter and no interrogatories and admissions of fact to indicate that the property was transferred to the defendant as an interposed substitute for intervenor. At the time of the transfer plaintiff intended the property to be transferred to defendant. Thus there was no error. Plaintiff did not meet the strong burden of proof to show fraud.

Plaintiffs father filed an intervention seeking to be declared owner of the property. An exception of res judicata was filed but was ultimately denied by the trial court. This ruling was correct. The first suit was based on breach of contract; the second was based on fraud. Mitchell v. Bertolla, 340 So.2d 287 (La.1976). However, we find no proof of fraud in the record.

Therefore, the judgment of the trial court is affirmed. The costs of this appeal are to be divided equally between the plaintiff/appellant and the intervenor/appellant.

AFFIRMED.


text:
    Mark Shane SIMS v. Jeffrey N. SIMON et al. Marilyn D. MYERS v. Jeffrey N. SIMON et al.
    Nos. 13255, 13256.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    James W. Murray, Baton Rouge, of counsel for plaintiff-appellant Mark Shane Sims.
    Anthony J. Clesi, Jr., Baton Rouge, of counsel for defendant and third-party defendant-appellant Jeffrey N. Simon and State Farm Mut. Auto. Ins. Co.
    David L. Dawson, Jr., Baton Rouge, of counsel for plaintiff-appellant Marilyn Myers.
    Daniel R. Atkinson, Baton Rouge, of counsel for defendant and third-party plaintiff-appellee Commercial Union Assurance Co.
    Before ELLIS, PONDER and LEAR, JJ.
   ELLIS, Judge:

These two consolidated cases arise out of an automobile accident involving a van owned and operated by Mark Shane Sims, and an automobile owned and operated by Jeffrey N. Simon. Marilyn D. Myers was a guest passenger in the Sims vehicle.

Both vehicles were heading in a northerly direction on Scenic Highway, following a third vehicle operated by Hollis N. Grayer. Mr. Grayer brought his vehicle to a stop behind another vehicle which was waiting to make a left turn. According to Mr. Sims and Miss Myers, Sims was bringing his van to a normal stop behind the Grayer car when the van was struck violently in the rear by the Simon vehicle, and driven into the Grayer automobile.

Both Mr. Simon and his guest passenger, Miss Jane Minville, testified that they had been following the van for some time, and had attempted to pass it on several occasions. Just before the accident, however, Mr. Simon testified that he was following at a safe distance. He testified that the van suddenly braked hard and skidded into the Grayer vehicle, which it struck. He was unable to stop his car, and skidded into the van, striking it lightly in the rear. Expert testimony and photographs in the record indicate that the damage to the rear of the van and the front of the Simon vehicle was light.

The trial judge accepted the Simon version of the accident, basing his finding primarily on the physical damage to the two vehicles. Plaintiffs Sims and Myers have appealed, alleging that the factual conclusions of the judge are manifestly erroneous.

We have carefully reviewed the record, and find no manifest terror in the conclusion of the trial judge, which is based on his evaluation of the credibility of the witnesses, and of the physical evidence. See Flowers v. St. Paul Companies, 336 So.2d 1018 (La.App. 2nd Cir. 1976).

The judgments appealed from are therefore affirmed, at plaintiffs’ cost.

AFFIRMED.


text:
    Darrow PERKINS v. AMERICAN MACHINE & FOUNDARY CO.
    No. 13259.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.

      Michael W. McKay, Baton Rouge, for plaintiff-appellant, Darrow Perkins.
    Henry Salassi, Jr., Baton Rouge, for defendant-appellee, AMF, Inc.
    Richard Creed, Jr., Baton Rouge, for in-tervenor-appellee, U. S. Fidelity & Guaranty Co.
    Before ELLIS, PONDER and LEAR, JJ.
   ELLIS, Judge:

This is a suit for damages by Darrow Perkins against AMF, Incorporated, arising out of an industrial accident in which plaintiff’s hand was severely injured. The case was tried before a jury, and, at the conclusion of the plaintiff’s case, defendant moved for and was granted a directed verdict. From the judgment of dismissal rendered pursuant thereto, plaintiff has appealed.

Plaintiff was employed at Holsum Bakery in Baton Rouge, where his job was to monitor one of the production lines. Among the equipment in the line was a Pan-O-Mat machine, which was driven by a chain and sprocket drive system. A cover, affixed to the machine by four bolts, guarded the drive.

Shortly before the accident, plaintiff took a break and was relieved at his station by Hezekiah Brown, Jr. Brown noticed that the cover over the drive seemed warm, and called a maintenance man to check it. He came and removed the cover and found that the drive was in need of lubrication. The cover was left on the floor while the maintenance man went to get the needed equipment. The production line and the Pan-O-Mat machine continued to function, and were not shut down. When plaintiff returned from his break, he was not warned that the cover had been removed, and shortly thereafter, his hand was caught in the exposed chain and sprocket drive and injured.

The Pan-O-Mat machine in question was designed and built by defendant AMF, Incorporated. In his petition, plaintiff alleges as follows:

“Petitioner’s injury was solely caused by the legal fault of defendant in defectively designing and manufacturing the machine listed above; specifically including but not limited to failing to provide an adequate guard to protect against the hazard of the exposed chain and sprocket and/or failing to provide adequate warnings of the danger.”

The Pan-O-Mat in this case was manufactured and sold in 1962. The chain and sprocket drive is normally lubricated when the machine is shut down, and not when it is in operation. No witness in the case could recall a time when the cover had been removed from the drive while the machine was in operation.

Plaintiff’s expert witness testified that there were numerous ways in which the installation of the cover could have been done in order to make the machine safer. These included the installation of an interlock device so that the machine could not operate while the cover was off; hinging the cover so that it would be more readily replaceable over the drive; painting the cover a different color, so as to indicate the existence of a hazard; and putting a written warning on the guard. The expert testified that the machine, as designed, was unreasonably dangerous to “normal use,” because none of the above devices or techniques were incorporated into the machine. However, he also testified that the design of the machine violated no specific government regulations or industry standards; and that, as he understood the facts of this case, the cover was not removed during “normal use.”

The trial judge ruled as follows:

“Considering the motion for a directed verdict, the court feels that in a case of this kind there are two possible standards which would apply to the defendant’s conduct. One of those standards would apply in the event that a defect as defined in law were to be proven. And that standard would be one of strict liability. However, in the event that a defect is not proven, the standard to apply would be that of negligence.”
In this case, the court finds that a defect as defined by law has not been proven. Further, that there is no evidence from which the jury could reasonably find a defect. There is no evidence that the machine in question was dangerous while in its normal use. The only evidence regarding its normal use is that the plaintiff himself, in the years that he worked at the plant and the years that he worked operating this machine never saw it operating with the guard off. Even plaintiff’s expert witness could not testify as to what the normal use and maintenance of the machine was. The court having found that there is no evidence from which the jury could conclude that a defect existed, the court turns to a consideration of the standard of negligence. In this regard, there is simply no evidence from which the jury could possibly find negligence on the part of the defendant and the manufacturer of this piece of equipment. We will comment that there is considerable evidence that the accident, as regrettable and as painful as it was, was caused by the negligence of co-workers, co-employees of the plaintiff, by their leaving the guard off, and I choose not to make any comment on the question of contributory negligence since it’s not necessary. For these reasons, the court sustains the motion for a directed verdict in favor of the defendant.”

In Weber v. Fidelity & Casualty Insurance Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971), the court said:

“A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.”

In Leathem v. Moore, 265 So.2d 270 (La. App. 1st Cir. 1972) we said:

“The foregoing rule requires the manufacturer to exercise reasonable care in the design of its products which are of such nature that, if not carefully made, can cause foreseeable injury to persons using the products for purposes which the manufacturer may reasonably expect they will be employed, and also to those whom the manufacturer may reasonably expect to be endangered by such probable use. Failure to exercise such care renders the manufacturer liable if injury results from lawful use of the product in a manner and for a purpose which the manufacturer may be deemed to reasonably expect. However, such liability does not extend to the whole world, nor does it involve all risks that might result in injury-
“By its very nature, the criteria of reasonable care, applicable in instances of this nature, must be flexible inasmuch as it depends on the peculiar facts and circumstances of each individual case. Even though a design may not be perfect or foolproof, it is still not defective provided reasonable care is taken in its adoption. On the other hand, neither custom nor usage in manufacturing style, nor prolonged marketing and use without significant injury producing accidents, can exonerate the manufacturer from liability for reasonably foreseeable injury resulting from use. These latter factors are merely part of the attending circumstances which must be weighed and considered in each case of this nature. We are of the further view that the duty of reasonable care, applicable to design, also obtains with respect to fabrication and manufacture of a product.”

In this case, plaintiff is arguing that defendant’s design was improper in that it failed to incorporate some or all of the devices and safeguards which might have made the machine safer; that defendant was required to anticipate that the cover might be removed, without warning, while the machine was in operation; and that the machine was therefore not safe in “normal use.”

It has been shown that the machine could have been made safer, but that is not the sole criterion. It must further be shown that the manufacturer should reasonably anticipate that the cover would be removed for maintenance while the machine was in operation. There has been no such showing. If, for instance, normal maintenance would require lubrication of the gears, chains and sprockets behind the cover at extended intervals, which would be performed only when the machine was not in operation, then the manufacturer would not be required to anticipate that the cover would be removed during operation. If, on the other hand, lubrication was necessary at relatively short intervals, then it should reasonably be anticipated that the cover would be removed during operating periods. The only testimony on that point is that neither plaintiff nor Hezekiah Brown, Jr., both of whom were long time employees, had ever known the cover to be removed.

Article 1810 of the Code of Civil Procedure provides that a defendant in a jury trial may move for a directed verdict at the close of plaintiff’s case, which may be granted, if justified, without the consent of the jury. The standard to be applied by the trial judge in considering the motion is expressed in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979):

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

The trial judge found that there was no evidence from which reasonable men could conclude that there was a defect in the design, or that there was negligence on the part of AMF. Our review of the record shows that plaintiff proved that the machine could have been designed more safely, and that plaintiff was injured when the cover was removed. He offered no evidence whatsoever as to the normal use or maintenance of the machine, or as to when or if the manufacturer might reasonably expect the removal of the cover from the drive.

We think that, under the circumstances, the trial judge applied the proper standard of adjudication and reached a proper conclusion.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    Eugene HOLLAND v. John “Shady” HURST.
    No. 13268.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.

      Henry A. Mentz, Jr., Hammond, for plaintiff.
    Bruce E. Simpson, Kentwood, for defendant.
    John A. Gutierrez, Gonzales, for Heldors Associates, Inc.
    Before ELLIS, PONDER and LEAR, JJ.
   PONDER, Judge.

In this action on a construction contract, the trial court found for defendant and plaintiff appealed.

We affirm.

Plaintiff and defendant entered into a contract whereby defendant was to build a swimming pool. Plaintiff began complaining of the quality of the pool shortly after it was completed. He stated that algae formed, the water became muddy, the steps leading to the pool were misshapen, the skimmer and vacuum did not work, two holes appeared in the liner, the pool began to leak, and the side panels appeared to be misaligned.

The installation of a swimming pool is a construction contract and not a sale. Therefore the principle of redhibition is not applicable in such cases. Catalina Pools v. Sellers, 322 So.2d 812 (La.App.4th Cir.1975). See also the annotation at 1 ALR 870.

The applicable article is C.C. 2762, which states:

“If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.”

The test to determine if plaintiff can recover is whether defendant performed the contract in a good and workmanlike manner. The plaintiff must prove this by a preponderance of the evidence either direct or circumstantial. A & M Pest Control Serv., Inc. v. Fejta Const. Co., Inc., 338 So.2d 946 (La.App.4th Cir. 1976).

Defendant asserts that the problems of algae and mud as well as the problems plaintiff had with the skimmer and vacuum were caused by the inexperience of plaintiff’s wife in maintaining the pool.

The misaligned panels and hole which caused the leak were found by the trial court to have been caused by a third party.

The problem with the steps was admitted by defendant. He also said he would have repaired them but that plaintiff hired another to do the job. Plaintiff deducted the cost of the repair from his final payment to defendant.

The trial court found that an agent of plaintiff who was hired to repair the steps caused the misalignment of the panels and that no water was observed leaking until this work was completed. The trial court also found that defendant was given no opportunity to repair the defects and that plaintiff had not proved a claim in redhibition.

Other questions on the quality of workmanship raised by plaintiff’s expert were improper installation of the deck supports and the absence of concrete on the A frame braces. Defendant testified that deck supports are optional on this model pool and that plaintiff had not ordered any deck supports. He asserted that there was no need to pour concrete on the A frame braces because this pool was set in hard clay. Concrete is only “recommended” by the manufacturer and is not required.

The decision in this case depends greatly upon the credibility of the witnesses. The trial court preferred to believe defendant’s witnesses and there is evidence in the record to support that conclusion.

A review of the entire record does not reveal any manifest error. Therefore, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: LEAR, Judge.

text:
    Lawrence J. HENLEY, Jr. v. F. G. SULLIVAN, JR., CONTRACTOR, INC., et al.
    No. 13263.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Cyrus L. Greco and Arthur A. Vingiello, Baton Rouge, for plaintiff-appellant Lawrence J. Henley, Jr.
    Daniel R. Atkinson, Baton Rouge, for defendants-appellants F. G. Sullivan, Jr., Contractor, Inc., and Sentry Ins.
    Before ELLIS, PONDER and LEAR, JJ.
   LEAR, Judge.

Appellant, Lawrence J. Henley, Jr., seeks review of the trial court’s dismissal of his suit.

On July 3, 1978, appellant was injured while in the course and scope of his employment with F. G. Sullivan, Jr., Contractor, Inc. On July 21, 1978, workmen’s compensation payments commenced at a rate of $80.04 per week. This amount was not correct and in August, 1978, appellant’s attorney wrote Henley’s employer and its insurer requesting that the rate of compensation be increased. Suit was filed on October 31, 1978. Thereafter, in November, 1978, the rate of compensation was corrected to $106.67 per week. At that time, a check representing the difference between the $80.04 per week previously paid and the $106.67 then being paid was issued to Henley. Payments continued until March, 1979. Discontinuance of payments was based on the opinion of Henley’s physician that Henley was able to return to work without any permanent disability or loss of physical function.

After trial, Henley’s suit was dismissed and this appeal ensued. Appellant contends that (1) the trial court was wrong in finding that he was not disabled when compensation was stopped and (2) the trial court erred in denying him penalties and attorney fees based on delay without cause in correcting the amount of his compensation benefits.

The trial court’s finding that appellant was no longer disabled when compensation benefits were terminated cannot be disturbed. Appellant and his relatives testified that he was still having difficulty with his knee; however, medical evidence indicated otherwise.

“It is the judge’s function to determine the weight which is to be accorded the medical testimony as well as the lay testimony.” Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975).

Upon fulfilling this function the trial judge apparently gave greater weight to the medical evidence. It is well established that: “On appellate review, the trial court’s factual findings of work-connected disability are entitled to great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless clearly wrong.” Crump v. Hartford Accident & Indemnity Company, et al., 367 So.2d 300 (La.1979).

We conclude that a reasonable evaluation of the evidence supports the trial court’s finding that appellant was no longer disabled when compensation was terminated. Therefore, this finding cannot be disturbed.

Furthermore, the trial judge’s denial of penalties and attorney fees cannot be disturbed. L.S.A.-R.S. 22:658 provides that a 12% penalty and attorney fees may be imposed only when failure to pay is “arbitrary, capricious, or without probable cause.” This statute being penal in nature must be strictly construed and the burden is on the claimant to prove that failure to pay was arbitrary, capricious or without probable cause. Gauthier v. Employers National Insurance Co., 316 So.2d 769 (La.App. 1st Cir. 1975).

After careful review of the record, we find no manifest error in the trial judge’s determination that the evidence does not indicate that failure to pay was arbitrary, capricious or without probable cause.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Jeffrey J. ROWDON v. Brenda Gail Braddy ROWDON.
    No. 12318.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.
    Bruce E. Simpson, Kentwood, for plaintiff.
    Michael R. Tregle, Hammond, for defendants.
    Before ELLIS, PONDER and COLE, JJ.
   ELLIS, Judge:

This is an appeal by Brenda Gail Braddy Rowdon from a judgment decreeing a separation from her husband, Jeffrey John Rowdon, on the ground of mutual fault and awarding to Mr. Rowdon custody of the two minor children born of the marriage.

This suit was originally filed by Mr. Row-don, seeking a separation on the ground of habitual intemperance. It is alleged that Mrs. Rowdon “excessively abuses alcohol and drugs.” Mrs. Rowdon reconvened for a separation on the ground of abandonment.

Mrs. Rowdon suffered an injury in an automobile accident when she was pregnant with her first child, about five years before the trial in this case. She suffered grand mal seizures as a result, and Dilantin and phenobarbital were prescribed for this condition. About a year before the trial she began to take Darvocet, and continued to take it in increasing quantities until November, 1978, when she consulted a doctor because she felt she was taking too much. The doctor testified she told him she was taking 20 to 40 Darvocets daily. He referred her to a psychiatrist, who told her to stop the Darvocet, and who put her on Valium instead. Mrs. Rowdon testified that she discontinued all drugs before January 1, 1979, except for Ativan and some vitamins which were prescribed by the psychiatrist.

Other evidence indicates that at one time, some seven or eight months before trial, Mr. Rowdon found Mrs. Rowdon at the kitchen sink with about 15 phenobarbitals in her hand, which he took away from her. Mrs. Rowdon testified that she did not intend to take all the pills, but had just spilled too many from the bottle into her hand. At about the same time, she was taken to a hospital to have her stomach pumped after taking about 10 Elavils. About eight months before the trial, Mrs. Rowdon attempted to commit herself to Southeast Louisiana State Hospital in Mandeville because of her problem with Darvocet, but was not accepted.

Mr. Rowdon also testified that on about 10 occasions during the three years before the trial, he had seen his wife in a condition when “she can’t talk, can’t walk — she’s uncoordinated, she’s in another world.”

The incident which led to their separation occurred on May 4, 1979, about three and one-half months before the trial. Mr. Row-don returned home and found Mrs. Rowdon asleep in her bed, with a smoking pot of potatoes on the stove, and their trailer home filled with smoke. He had difficulty in awakening her, but did so. He assisted her to the door and put her out, telling her that if she returned he would kill her. Mrs. Rowdon was in a fairly advanced state of pregnancy at the time. Mr. Rowdon testified that he told her mother that Mrs. Row-don needed help.

Mrs. Rowdon testified that she had not slept for two nights before the incident because of headaches, and that she had taken three Ativans, one less than the maximum number prescribed by the psychiatrist. She said she lay down to relax and inadvertently went to sleep. She said she was not drugged but exhausted.

After the foregoing incident, Mrs. Row-don had herself committed to East Louisiana State Hospital in Jackson, where she remained for a week. After her discharge she returned home, and Mr. Rowdon then took the children and went to live with his sister. This suit was filed the day after Mr. Rowdon put his wife out of the trailer.

There is no evidence in the record to substantiate any mental illness on Mrs. Rowdon’s part. Except for the May 4, 1979, incident, every other specific incident took place at least four months before the separation. According to her unrebutted testimony, she had had no drugs at all since January 1, 1979, except for Valium and Ativan, which she took under doctor’s orders. There is no evidence to show that she was not a good mother.

The record further reflects that Mr. Row-don was a fairly heavy drinker of beer. At the time of the trial he and the two children were living in a trailer with his sister, her husband and their three children.

We are disturbed by the result reached in this case. Although it is clear that Mrs. Rowdon had had some sort of drug problem during 1978, there is nothing to contradict her assertion that she was no longer taking these drugs during 1979 and up to the time of the separation. Neither is there any evidence to show that she was anything other than a good mother to her children. Unfortunately, the testimony of the psychiatrist who was treating Mrs. Rowdon was not offered, nor was that of a social worker who was, apparently, familiar with her case.

The depositions of these two witnesses were to be taken post trial and placed in the record by Mr. Rowdon, but he did not do so.

We think that, on its face, this record does not justify either the finding of mutual fault or the grant of custody to Mr. Rowdon. The only drug problem which was proven was over five and one-half months prior to the event when Mr. Rowdon put Mrs. Rowdon out of the trailer. We do not think this sufficient to entitle Mr. Rowdon to a separation on the ground of habitual intemperance, and no other ground is alleged.

On the other hand, there can be little doubt that Mr. Rowdon abandoned his wife when he took their children and left the trailer when she returned from the hospital.

On the question of custody, the same reasoning applies. The evidence shows that Mrs. Rowdon took good care of her children, and the record does not show that she was not able to continue to care for them or that she was in any way unfit.

We are of the opinion that, on the face of the record, the result reached by the trial judge is clearly wrong. However, because the children involved are of tender years, and because we think that the testimony of the psychiatrist and social worker is necessary in reaching a proper result in this case, we believe that the interest of justice would best be served by a remand for the purpose of admitting the testimony of these witnesses, and any other relevant evidence both as to the granting of the separation and the question of custody.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for further proceedings consistent with this opinion and according to law. Costs of this appeal shall be paid by Mr. Rowdon, with all other costs to await final disposition hereof on its merits.

REVERSED AND REMANDED.


author: ELLIS, Judge.

text:
    STATE of Louisiana and the Military Department, State of Louisiana v. LACONCO, INC., et al.
    No. 12873.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Horace B. Womack, Baker, John A. Lieux, Gonzales, for Hilton Haydel, d/b/a Ascension Roofing & Sheet Metal Works et al.
    Michael J. Matthews, Gonzales, for Economy Brick Sales, Inc.
    George B. Recile, New Orleans, for State of Louisiana, appellant.
    H. Michael Aaron, Gonzales, for Dependable Glass Works Inc., and Bucklew’s Food Serving Equipment Co., Inc.
    E. Wade Shows and David Bell, Baton Rouge, for Laconco, Inc. and Commercial Union Ins. Co.
    Ralph Tureau, Gonzales, for Picou Brothers Construction Co., Inc., et al.
    Peter W. Arbour, Baton Rouge, for Howard Olivier d/b/a Howard Olivier Builder.
    Warren L. Mengis, Baton Rouge, for Dub Johnson Paving Contractor, Inc. and N. E. W. Elec. Co.
    Ben F. Day, Baton Rouge, for Alan Kifer d/b/a Southern Landscaping.
    Charles W. Nelson, Jr., New Orleans, for Architectural Hardware, Inc.
    Marshall J. Favret, New Orleans, for Metfab, Inc.
    James H. Morgan, III, Baton Rouge, for Accardo Tile Contractor, Inc.
    Before ELLIS, PONDER and COLE, JJ.
   ELLIS, Judge.

The State of Louisiana and the Military Department, State of Louisiana, bring this suit against Laconco, Inc., Commercial Union Insurance Company and 16 subcontractors and materialmen pursuant to the provisions of R.S. 38:2243. The petition alleges that plaintiffs entered into a contract with Laconco for the construction of a National Guard Armory in Ascension Parish on September 17, 1975. It is further alleged that Commercial Union was surety on both the payment and performance bonds furnished in connection with the contract.

It is further alleged that the contract was timely recorded on November 4, 1975; that the date of completion was to be 366 days after the notice to proceed; and that the contractor was to complete the building and deliver it to plaintiffs free of all liens, privileges and claims. The petition further alleges that two liens were filed against the job in February, 1977, and that plaintiffs ceased payment to Laconco at that time. The petition states that Laconco was placed in default on June 22, 1977, because the building was not satisfactorily completed; and a second letter of default was recorded on January 3, 1978. The petition details 16 liens which had been filed against the job, and alleges that the lien holders are threatening to bring suit against plaintiffs for the amounts claimed by them. Plaintiffs allege that, under the above circumstances, they have a right to invoke a concursus proceeding.

It is further alleged that Laconco and Commercial Union are indebted to plaintiffs for funds expended to complete a security alarm system and for $200.00 per day in liquidated damages for failure to complete the building within the time allotted.

Nine of the 16 subcontractors and materi-almen filed pleadings in response to the petition; four of the nine third partied La-conco and Commercial Union, and two of the nine reconvened against plaintiffs.

Laconco and Commercial Union filed a peremptory exception to the petition based on the following grounds:

“1.
“The plaintiffs have no right to invoke a concursus proceeding as none of the alleged defendants have competing or conflicting claims against the plaintiffs, the State of Louisiana and The Military Department State of Louisiana or against each other.
“2.
“Additionally, some of the defendants, allegedly made part of this concursus proceeding have no claim against the plaintiffs, the State of Louisiana and The Military Department State of Louisiana nor will they ever assert a claim against the plaintiffs.
“3.
“Further the plaintiffs, the State of Louisiana and The Military Department State of Louisiana have attempted to implead all potential claimants against the defendant, Commercial Union Insurance Company, into this alleged concursus proceeding and have requested that all defendants assert against the defendant, Commercial Union Insurance Company, their claim arising out of certain purchase orders or subcontracts of which plaintiffs, the State of Louisiana and The Military Department State of Louisiana have no involvement.
“4.
“Also, the plaintiffs, the State of Louisiana and The Military Department State of Louisiana have improperly combined an alleged concursus proceeding in which all claimants are supposed to have competing or conflicting claims with an action personal between the State of Louisiana and The Military Department State of Louisiana and' Commercial Union Insurance Company for breach of a construction contract all in contravention of the procedure set forth in the applicable Louisiana Code of Civil Procedure Articles relative to concursus proceedings.”

Five of the other defendants filed peremptory exceptions based in part on some of the grounds alleged above and in part on the alleged failure of the plaintiffs to rec-' ord the payment bond in Ascension Parish.

In addition, Laconco and Commercial Union filed a rule to compel plaintiffs to furnish an itemized list of deficiencies in the job and a description of the remedial work necessary for the satisfactory completion of the job.

After hearings were held on the exceptions and on the above rule, judgment was rendered ordering plaintiffs to furnish the itemized list and description requested; dismissing the concursus proceeding, with prejudice, as to plaintiffs; and ordering all claims arising out of the construction of the National Guard Armory to be consolidated in the 23rd Judicial District Court for determination. From that judgment, plaintiffs have appealed.

R.S. 38:2243 provides as follows:

“If at the expiration of the forty-five days any filed and recorded claims are unpaid, the governing authority shall file a petition in the proper court of the parish where the work was done, citing all claimants and the contractor, subcontractor, and surety on the bond and asserting whatever claims it has against any of them, and shall require the claimants to assert their claims. If the governing authority fails to file the proceeding any claimant may do so.
“All the claims shall be tried in concursus and the claims of the claimants shall be paid in preference to the claims of the governing authority.”

Plaintiffs have followed the dictates of the foregoing statute in bringing this proceeding. The exceptions filed by Lacon-co and Commercial Union seem to be an attempt to add to the requirements of the said statute the substantive requirements of the concursus articles of the Code of Civil Procedure. We do not believe that this was the intention of the legislature. We think it was intended for the State to use the concursus procedure as a vehicle for the simple resolution of all claims arising out of a public works contract. That is what it has done in this case.

There is no evidence in the record to show that the bond was or was not recorded as required by law. However, even if it were not so recorded, we can see no reason for denying to the State the procedure provided in R.S. 38:2243.

We therefore hold that the exceptions were improvidently maintained, and that the concursus proceeding should not have been dismissed.

Plaintiffs further complain about the decree ordering them to furnish the list of deficiencies to Laconco and Commercial Union. Since we do not have a transcript of the proceedings before the trial court, we do not know the factual basis for this ruling. There is, therefore, nothing for us to review.

The judgment appealed from is therefore reversed insofar as it dismisses the proceeding with prejudice as to plaintiffs, and there will be judgment overruling the various exceptions filed herein. In all other respects, the judgment is affirmed, and the case remanded to the trial court for further proceedings in accordance with law. Costs of this appeal shall be paid by Laconco and Commercial Union, with all other costs to await final disposition hereof on the merits.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.


text:
    Peggy Ruth Farrar NIX v. Charles F. NIX.
    No. 13165.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.

      Joseph P. Brantley, IV, Baton Rouge, for plaintiff-appellee Peggy Ruth Farrar Nix.
    Donald R. Weber, Baton Rouge, for defendant-appellant Charles F. Nix.
    Before ELLIS, PONDER and COLE, JJ.
   PONDER, Judge.

This is a suit for partition of community property. The defendant appealed the judgment ordering the partition.

The issues are the validity of an agreement partitioning at least some of the community property; the completeness of the agreement; and prescription.

We reverse and render.

Plaintiff and defendant were legally separated in April, 1968 and divorced in November, 1971. In May, 1967, they had entered into an agreement purporting to divide the community property. Within a few days of signing, plaintiff left the matrimonial domicile, taking with her a number of household items, some antiques and a car. Over the next few years she received from defendant the $1,750.00 payable under the agreement. She also sold back to defendant at least one item of furniture. She traded the car in on another vehicle and made no accounting to defendant.

In 1978, plaintiff filed a suit for partition of the community, claiming the settlement she signed in 1967 was invalid because she and defendant were still living as husband and wife at the time of the signing. She also claimed that the immovable property of the community was never meant to be included in the agreement.

The trial court found for defendant stating in its written reasons that the settlement had been ratified by plaintiff.

Plaintiff applied for and was granted a new trial based on Ward v. Ward, 339 So.2d 839 (La.1976) and Rasbury v. Baudier, 370 So.2d 659 (La.App. 4th Cir. 1979). The judge then found for plaintiff based upon the testimony and evidence adduced at the previous hearing.

On appeal, defendant claims a new trial should never have been granted to plaintiff based upon the cases. That question, however, addresses itself to the large discretion of the trial court. We find no abuse.

We find no merit to defendant’s exception of prescription since this is a suit for partition. Rasbury v. Baudier, supra.

Further, appellant claims that plaintiff did in fact ratify the agreement arid that the “omnibus” language in the settlement is sufficient to include all property in the community, movable or immovable. Although property settlements signed prior to the dissolution of the community are null, they may be subsequently ratified. Clay v. Clay, 358 So.2d 649 (La.App. 1st Cir. 1978). Plaintiff and defendant ratified the agreement by their actions after the termination of the community. We find the Ward and Rasbury cases neither controlling nor relevant.

The final issue remaining is whether the omnibus clause of the agreement was sufficient to include immovable property. The settlement reads as follows:

“This document, signed by interested parties, has been notarized, showing mutual agreement to the community property settlement, out of court, with no other settlement forthcoming.
Mrs. Charles F. Nix, resident of Apartment # 6, 450 Cloud Drive, Baton Rouge, Louisiana, will remove one-half of the furniture and household goods, now in joint residence of Mr. and Mrs. Charles F. Nix. Mr. Charles F. Nix will pay Mrs. Charles F. Nix a total sum of Seventeen Hundred and 50/100 ($1750.00) in total payment of community property. Mrs. Charles F. Nix, as of June 4th, is to assume complete responsibility of her livelihood.”

An omnibus description of land is effective between the parties even though the land was not specifically described. Valvoline Oil Company v. Krauss, 335 So.2d 64 (La.App. 3rd Cir. 1976).

Defendant testified he paid plaintiff the money for her share of the equity interest in the house. Plaintiff never addressed this issue at all. The agreement says the money was in total payment of community property and that no other settlement is forthcoming from the parties. We find that the parties meant for the settlement to include any and all community property, whether movable or immovable.

Therefore the judgment of the trial court is reversed and there is now judgment in defendant’s favor and against the plaintiff dismissing her suit. All costs are assessed against the appellee.

REVERSED AND RENDERED.


text:
    Michael SIBLEY v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY.
    No. 13258.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    See also, La.App., 385 So.2d 506.

      A. Wayne Stewart, Livingston, for plaintiff.
    Michael C. Barron and Foye L. Lowe, Baton Rouge, for defendant.
    Before ELLIS, PONDER and COLE, JJ.
   PONDER, Judge.

This is an action for a restricted driver’s license under the provisions of La.R.S. 32:415.1. Defendant appealed from the order granting such a license.

The issues are whether plaintiff’s petition stated a cause of action and the validity of the issuance of the license despite multiple prior suspensions and revocations.

We reverse.

In order for a restricted license to be granted, it must be the driver’s FIRST suspension. Perry v. State, Dept. of Pub. Saf., Driver’s L. Div., 353 So.2d 318 (La.App. 1st Cir. 1977) writ denied 354 So.2d 1385 (La. 1978).

Plaintiff’s failure to state in his petition that this was a first suspension is fatal to his claim.

There was and is no need to give permission to amend the pleadings so as to state a cause of action. As a matter of fact, plaintiff could not have truthfully stated a cause of action because plaintiff has two DWI convictions as well as speeding and reckless driving violations. He also has several violations for driving under a revoked license. His record shows five suspensions since 1975. There is evidence in the record of other suspensions for driving under a revoked license prior to 1975. Even the DWI convictions more than five years old are to be considered although these are not considered in assessing penalties for second and subsequent DWI convictions. Perry, supra.

The judgment is reversed at appellee’s costs and the petition for a restricted driver’s license is dismissed.

REVERSED.

      . LSA-R.S. 32:415.1 states in pertinent part:
      “A. (1) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood.”


author: COLE, Judge.

text:
    Teddy W. HICKMAN v. DEPARTMENT OF PUBLIC SAFETY.
    No. 13257.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Richard P. Reina, Denham Springs, for plaintiff.
    Foye L. Lowe, Jr., Baton Rouge, for defendant.

      Before ELLIS, PONDER and COLE, JJ.
   COLE, Judge.

Appellant, Louisiana Department of Public Safety seeks review of the trial court’s judgment granting a restricted license under the provisions of LSA-R.S. 32:415.1.

Appellee has three DWI convictions and several convictions for driving under revocation. He is therefore not entitled to a restricted license and the judgment of the trial court is reversed for reasons as set forth in Sibley v. La. Department of Public Safety, La.App., 385 So.2d 505.

REVERSED.