author: GULOTTA, Judge. BOUTALL, Judge, BOUTALL, Judge. GULOTTA, J.,

text:
    SUCCESSION OF William E. GRIFFITH.
    Nos. 12280, 12332.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1981.
    On Rehearing Feb. 10, 1982.
    M. Arnaud Pilie, New Orleans, for executrix and appellant.
    Edward C. Alker, Metairie, in pro per.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   GULOTTA, Judge.

In this Writ Application, the Succession of William E. Griffith seeks to annul a judgment ordering the Succession to pay an attorney for legal services rendered to the decedent during decedent’s lifetime. The judgment was signed after trial on a rule to show cause why the Succession should not pay his claim immediately. The Succession contends that a summary proceeding is not the proper procedure for a creditor to pursue a money judgment against a succession and that the required citation and service were not made.

A motion for suspensive appeal was filed by the Succession, but the judgment creditor sought to execute on the judgment by a writ of fieri facias and garnishment seizing the Succession’s checking account. In supplemental writ applications, the Succession seeks to have the seizure and garnishment dissolved on the grounds that the judgment itself is a nullity and that the trial court lacked jurisdiction in the matter while the appeal was pending. A stay of execution of the judgment has been issued, and the Supreme Court has transferred the matter to us for expedited disposition of the issues raised.

Dr. Griffith’s will was probated on November 20,1979. On June 16,1980 Edward C. Alker, an attorney having an unliquidat-ed claim against Dr. Griffith for professional fees, filed a petition to compel the executrix to furnish security in the amount of $30,208.88, one-and-one-quarter times the total amount of his claim. On June 23, Alker filed formal proof of his claim and annexed a statement of account itemizing the legal services he had rendered the decedent; and on July 9 he filed a rule to show cause why the administratrix should not be removed and his claim paid immediately. Karen Griffith, as testamentary executrix of the Succession, filed a $30,000.00 bond on July 24.

At the show cause hearing on September 3,1980 only Alker was present. Alker testified that he had performed services according to a descriptive list, which he offered into evidence. On September 11 the trial court rendered judgment as prayed in the amount of $25,167.10. Following the filing of the suspensive appeal and the attempted execution of the judgment, these writ applications were filed.

Although there is a serious question whether summary procedure may be used to assert a money claim against a succession, the dilatory exception to use of this procedure is waived unless timely pleaded in the trial court. LSA-C.C.P. Arts. 926, 928. See also, Ritchey v. Brignac, 328 So.2d 190 (La.App. 3rd Cir. 1976); In re Lomm, 195 So.2d 416 (La.App. 4th Cir. 1967), writ refused, 250 La. 541, 197 So.2d 81 (1967). In this matter the exception was untimely filed and we cannot now consider the propriety of Alker’s use of summary procedure to assert his claim.

On the other hand, a judgment rendered against a defendant who has not been served with process and has not entered a general appearance is an absolute nullity that can be raised collaterally at any time. LSA-C.C.P. Art. 2002(2); Thompson v. Courville, 372 So.2d 579 (La.App. 3rd Cir. 1979). The real issue before us, therefore, is whether the Succession was properly served with Alker’s rule to show cause.

Although LSA-C.C.P. Art. 2594 states that citation and service are not necessary in a summary proceeding, it does provide that a copy of the rule to show cause or other pleadings filed by the plaintiff and any order of the court assigning the date and hour of the trial, “shall be served upon the defendant.” The article does not specify a particular method of service. LSA-C. C.P. Art. 2596 states, however, that the rules governing ordinary proceedings are applicable to summary proceedings, unless otherwise provided.

LSA-C.C.P. Art. 1313, dealing with service of process, provides for service by mail or by delivery of a pleading that “requires no appearance or answer, the service being complete upon the mailing of a copy thereof.” On the other hand, LSA-C.C.P. Art. 1314 provides for service by the sheriff of any pleading that cannot be mailed under LSA-C.C.P. Art. 1313. Since a rule to show cause anticipates an appearance by the defendant in rule, we hold that Alker’s rule required service by the sheriff. Service of the rule by mailing a copy of it to counsel was not authorized. See Normand Company v. Abraham, 176 So.2d 178 (La.App. 4th Cir. 1965).

Sheriff’s returns in the record indicate that Alker’s petition to compel the executrix to furnish security was served on the then attorney for the Succession. Likewise, Alker’s formal proof of claim was served by the sheriff on both the Succession’s attorney and the executrix.

Alker’s rule to show cause, filed on July 9, and the order setting the matter for hearing on September 3, were not served on either the Succession’s attorney or the executrix. Although service was requested at two alternative addresses, the sheriff’s returns dated July 25 and July 30, 1980 state, “returned to sheriff’s office not served.” The rule was heard on September 3 resulting in the rendition of the September 11 judgment in favor of Alker. Irrespective of the claim that the Succession attorney was informed by a certified return receipt letter of the September 3 trial date, service by mail will not suffice in this instance. We point out that the Succession neither filed a responsive pleading to the rule nor made an appearance at the hearing of the rule. Under these circumstances, because of lack of proper service, we conclude the judgment rendered in favor of Alker is a nullity. It obviously follows that any attempt to execute on the null judgment is unlawful.

Accordingly, IT IS ORDERED THAT:

1) The September 11, 1980 judgment of the trial court in favor of Edward C. Alker, ordering the Succession of Dr. William E. Griffith to pay to Edward C. Alker the sum of $25,167.10, together with legal interest and reasonable attorney’s fees of $500.00, and all costs, be reversed and set aside;

2) It is further ordered that the garnishment, seizure or other attempted execution of said judgment be and the same is dissolved;

3)The matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

BOUTALL, J., concurs and assigns reasons.

BOUTALL, Judge,

concurring:

Having been required to consider this matter on writ application rather than on the merits of the appeal, I concur in result only.

ON REHEARING

BOUTALL, Judge.

This matter came before us on writs of certiorari, prohibition and mandamus on the application of the Succession of William E. Griffith seeking to annul a judgment ordering the succession to pay the fees of an attorney, Edward C. Alker, for legal services rendered to the decedent during his lifetime and in connection with the circumstances surrounding his death. A subsequent application was filed seeking to prevent the execution of the judgment by writ of fieri facias and garnishment proceedings. In our original opinion we concluded that the judgment rendered in favor of Alker for his attorney’s fees was a nullity for lack of proper notice given the succession’s attorney and the succession’s executrix of the September 3, 1980, hearing which resulted in the rendition of the judgment complained of. The respondent Alker has applied for a rehearing on the basis that the facts upon which we rendered that judgment were incorrect, contending that a proper showing of the facts would show sufficient notice.

We granted rehearing, and have been referred to additional facts of which we were not aware on the original hearing. It should be noted that this matter came to us on writ application mandated by the Supreme Court, and not in the regular course of appeal. Accordingly, we have been plagued with the problem of obtaining a complete record from the trial court. The record has now been lodged in this court by virtue of the suspensive appeal taken by the applicant from the adverse judgment, and although it is still not complete, there is sufficient ground upon which to vacate our original opinion declaring the judgment of September 11,1980, a nullity, and to affirm that judgment.

First, we reiterate our holding that the dilatory exception of improper use of summary procedure was untimely filed, and we cannot now consider the propriety of Alker’s use of summary procedure to assert his claim.

Our inquiry here is basically directed at the nullity of judgment for lack of service. The record shows, despite continued denials of the succession attorney, that the “FORMAL PROOF OF CLAIM TO THE SUCCESSION” and “STATEMENT OF ACCOUNT”, showing the details of the claim for attorney’s fees and containing an order of the judge setting the hearing on the claim for June 30,1980, were all personally served on June 27, 1980, on Karen Griffith, the executrix. John T. Keyes, Jr., attorney for the succession at that time was served on June 26 with citation and “PETITION BY CREDITOR TO COMPEL EXECUTRIX TO FURNISH SECURITY” in addition to the other three pleadings. The applicant’s statements in this regard are misdirected. However, the rule was not heard on June 30 but later on September 3, and this is an area of serious contention.

The record as it is now composed does not contain any return of service of notice either to the executrix or the succession attorney of the September 3 hearing. It does contain a letter addressed by Alker to the new attorney for the succession, M. Arnaud Pilie, calling his attention to the September 3 trial date. There is no contention by Pilie that he did not receive the letter nor is there contention that he was unaware of the trial date. His position is simply that this informal notice is insufficient. In our original opinion, we agreed and declared the judgment null. However, on this reheáring we have been furnished further evidence which causes us to conclude that the fact of notice was indeed proven.

As stated above both the executrix and succession attorney had been served with a copy of an order setting a hearing for June 30, 1980. There were also other proceedings in the succession, not relevant to this, that were set for the same date. The clerk’s minute entry on June 30 shows only that the other matter was taken up, and there is no mention of this matter in that minute entry, nor is there any other minute entry for June 30 in the record. Alker contends that the matter was continued to September 3 by the judge in open court and that both the succession attorney and himself were thus notified. In support of his contention, he furnishes us with an affidavit of certain Max Scott to that effect. Counsel also furnishes us with a transcript of the proceedings taken on a motion to set aside the judgment of September 11 before the same judge on January 5,1981. In that proceedings the respondent makes reference to the notification in court, and although the trial judge made no remarks in that regard, nevertheless he dismissed the motion, causing us to believe that such a notification of continuance in open court did take place. We have seriously considered remanding this matter for trial on that point but this matter has been before this court for some period of time, and the judge’s action leads us to believe that proof is readily available, and that the notification is a fact.

We hold that it is within the inherent judicial power of the judge in ordering a continuance to at the same time notify the attorneys of the date to which the continuance is made, and that is sufficient notice to require the attendance at that continued hearing on the date specified. Accordingly, we agree with the action of the trial judge in permitting the attorney to proceed on September 3,1980, and we affirm the judgment rendered on September 11.

The other issue brought before us is the matter of the issuance of a fieri facias and garnishment proceedings based upon the judgment of September 11. It is apparent that a timely suspensive appeal was taken by the attorney for the succession, and indeed that matter is lodged in this court. C.C.P.Art. 2252 provides that a judgment creditor may proceed with the execution of a judgment only after the delay for a suspensive appeal therefrom has elapsed. Additionally, a suspensive appeal is one that suspends the effect or the execution of an appealable order or judgment. C.C.P.Art. 2123. Obviously, the issuance of a writ of fieri facias and garnishment proceedings in execution of the judgment sus-pensively appealed from are not permitted, and we issue a writ of mandamus directed to the trial judge ordering him to revoke and vacate the writ of fieri facias and dismiss the garnishment proceedings taken in accordance therewith.

For the reasons assigned, the September 11, 1980, judgment in favor of Edward C. Alker against the Succession of Dr. William E. Griffith in the sum of $25,167.10 is affirmed; the fieri facias and garnishment proceedings are ordered recalled and vacated and this matter is remanded to the trial court in accordance therewith.

JUDGMENT AFFIRMED; MANDAMUS ISSUED.

GULOTTA, J.,

dissenting.

GULOTTA, J., dissents.

For the reasons assigned in the original opinion, I respectfully dissent.

      . LSA-C.C.P.Art. 2594 provides as follows: “Art. 2594. Service of process
      Citation and service thereof are not necessary in a summary proceeding. A copy of the contradictory motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, and of any order of court assigning the date and hour of the trial thereof, shall be served upon the defendant.”

      . LSA-C.C.P.Art. 2596 provides as follows:
      “Art. 2596. Rules of ordinary proceedings applicable; exceptions
      The rules governing ordinary proceedings are applicable to summary proceedings, except as otherwise provided by law.”

      .LSA-C.C.P.Art. 2971 provides that, except as otherwise provided by law, the rules of pleading and service of process applicable in ordinary proceedings shall apply to Succession proceedings.

      . The record contains a letter dated August 21 (though not a certified return receipt) from Alker to the Succession’s attorney in which Alker refers to the September 3 hearing.
      The copy of the rule in the record is stamped and apparently signed by a person associated with Alker who certified that a copy of the pleading was served by mail on all counsel of record.


source: Caselaw Access Project

author: SAMUEL, Judge. PER CURIAM.

license: Public Domain

text:
    Carol Lynn Cue, wife of David George LENTZ v. David George LENTZ.
    No. 11354.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 1981.
    Per Curiam on Rehearing Jan. 22, 1982.

      Schaff & Currier, John M. Currier, New Orleans, for plaintiff-appellee.
    Maurice B. Friedman, New Orleans, for defendant-appellant.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   SAMUEL, Judge.

This is an appeal taken by the ex-husband from a judicial partition of the community formerly existing between the two litigants.

The parties were legally separated on December 12, 1973 and divorced on January 27, 1975. The wife earned an income and there was no award of alimony. In due course a judicial partition of the community was ordered, and the immovable community property, consisting solely of the family home, was sold at public auction. It was purchased by the husband for $37,000. At the time of trial, following payment of various costs and expenses, $20,254.44 was available for distribution between the parties, both of whom made various claims on these funds.

In the trial court, the husband claimed reimbursement, out of the wife’s share, of one-half of the payments, including principal, interest, taxes and insurance, made on notes secured by mortgages on the family home, and one-half of the payments made for improvements and upkeep of that home, all fully paid by him with his separate funds. The wife claimed reimbursement from the husband’s share for various paychecks allegedly belonging to her, cashed by the husband without her consent and diverted to his own use, and for payment of an alleged loan made by her to him after the separation.

Following trial, there was judgment awarding the wife, out of the husband’s share of the funds, $340 for her said loan (while rejecting her claim for reimbursement relative to the checks), and crediting the husband with the sum of $1,419.54, representing the mortgage payments referable only to the principal. Accordingly, out of the $20,254.44 available the judgment awards the wife $10,242.45 and the husband $10,011.99. The husband has appealed, raising four issues.

First, appellant contends the trial court erred in failing to award him recovery, out of his wife’s share, of one-half of all the amounts paid by him on the mortgage notes, including principal, interest, taxes and insurance. We agree with this contention.

For all practical purposes, the husband lived in the originally community-owned home, and the wife lived elsewhere, from the time the community was terminated until the property was sold, a period of approximately four and one-half years. During that time he made mortgage payments with his separate funds in a total amount of $8,478.50, which payments consisted of $1,414.95 on the mortgage principal and $7,063.55 for interest, taxes and insurance.

Appellee relies, and the trial court in part relied, on the cases of Succession of Brumes, 209 La. 629, 25 So.2d 287, Succession of Boyer, 36 La.Ann. 506, Cookmeyer v. Cookmeyer, La.App., 354 So.2d 686, Madere v. Madere, La.App., 310 So.2d 166, and Hurta v. Hurta, La.App., 260 So.2d 324. We find these cases are not applicable in the issue now before us.

Cookmeyer is the only one of these cases concerned with mortgage payments, including interest, taxes and insurance, on a home which had belonged to the community. However, (at page 693) the Cookmeyer court concluded the trial court order “necessarily envisioned the husband’s bearing, as part of alimony and child support, the interest and any tax and insurance components of the monthly mortgage payments” (emphasis ours). The remaining four cases relied on involve a home which was the separate property of the spouse who occupied the same; there was no co-ownership as is the ease here. In this case the rules relative to ownership in indivisión are applicable.

Our long settled jurisprudence is that following termination of the community between a husband and wife the two parties become owners in indivisión of the immovable property which had belonged to the community; each owner in indivisión is entitled to possess or use the common property without the obligation to pay rent therefor, provided that such possession or use is not to the exclusion of his co-owner; and each co-owner has the obligation to maintain and preserve the property or, visa-vis each other, pay his share of the cost thereof.

In the instant case the property could not have been maintained and preserved without payment of the mortgage principal, interest, taxes and insurance. Without payment of all of these components it could be lost by foreclosure. Accordingly, we hold appellant is entitled to be reimbursed, out of his wife’s share of the funds to be distributed, one-half of all the amounts paid by him, with his separate funds, on the mortgage notes, including principal, interest, taxes and insurance. As each co-owning litigant is responsible for one-half of that total amount, $8,478.50, we amend the judgment so as to increase the award to appellant by $2,719.71 (one-half of $8,478.50, less $1,419.54, the amount awarded him by the judgment appealed from), and decrease the award to the appellee-wife by a like amount.

Appellant’s second assignment of error is the trial court’s refusal to award him, out of appellee’s share, one-half of the cost of improvements to, and upkeep of, the property. Those costs were paid with his separate funds. The alleged improvements and upkeep were made by the husband in spite of the injunction. They consisted of painting, kitchen cabinets, adding a patio, and other minor repairs. They were performed by him, his father, and/or his brothers. The cost of such work may be recovered only if the person claiming reimbursement can prove both that the work was necessary and that the value of the property was enhanced thereby.

The property in suit was purchased in 1969 at a cost of $21,500. It was appraised in August, 1977 for $30,000 and sold in 1978 for $37,000. The alleged total cost of the improvements and upkeep was $1,690. The trial court found there was insufficient evidence to establish the improvements enhanced the value of the property, and that the difference between the appraised value and sale price, as well as the difference between the cost in 1969 and the sale price in 1978, could not be attributed to these expenditures. He further noted defendant had violated the terms of the injunction and should not be rewarded therefor. We agree with those conclusions. In addition, we are of the opinion appellant’s “upkeep” was not made for the preservation of the property, but rather for his own use and benefit.

The last assignment of error is the trial court’s refusal to reimburse appellant for taxes and insurance paid on two formerly community-owned automobiles.

The record reflects that by agreement between the litigants each was to use and (possibly) keep one of the vehicles. When the husband’s automobile became inoperative, he took the car the wife was using without her knowledge or consent, and never returned the vehicle. In the final settlement the husband received both cars and made a small payment ($485) to the wife for the car he had converted to his own use, in effect purchasing that car.

We note the wife needed transportation to work, as did the husband. She was deprived of that transportation when the husband converted the use of both cars to his own use and enjoyment to the exclusion of his wife. The trial court felt that under the circumstances appellant was not entitled to reimbursement. We find no error in that conclusion. Although the record is not clear on this point, if by the agreement each party had become the owner of one of the vehicles, the wife clearly could not be held responsible for taxes or insurance on either car. If, on the other hand, the vehicles were owned by the parties in indivisión, each co-owner was entitled to possess and use the common property, but only if such possession and use was not to the exclusion of the co-owner. Here, appellant’s actions effectively prevented and excluded the ap-pellee from using either of the two vehicles.

Finally, only by way of brief, and only in the event the judgment appealed from is altered in any respect, appellee prays that we also revise the judgment so as to give her credit for the checks allegedly improperly converted to his use by the husband, a claim denied by the trial court. Since she has neither appealed nor answered the husband’s appeal, we cannot consider her request.

For the reasons assigned, the judgment appealed from is amended so as to disburse the $20,254.44 to be divided between the parties by awarding the appellant, David George Lentz, the sum of $12,731.70, and by awarding the appellee, Mrs. Carol Lynn Cue Lentz, the sum of $7,522.74. As thus amended, and in all other respects, the judgment appealed from is affirmed. Costs in this court are to be paid by the appellant.

AMENDED AND AFFIRMED.

ON REHEARING

PER CURIAM.

Among other matters in his application for rehearing, appellant contends our decree is mathematically incorrect and fails to give him the $1,419.54 trial court award which we have affirmed.

We agree our decree is mathematically incorrect to the extent that appellant should be awarded an additional $100 and appellee’s award should be decreased by that amount.

We do not agree with the second contention. The $1,419.54 amount referred to in appellant’s application was included in the trial court’s award to appellant. That amount represented the appellee’s responsibility for the total payments appellant had made out of his separate funds on the note principal. Our decree simply adds to appellant’s award in the trial court judgment one-half of the amount he paid out of his separate funds for interest, taxes and insurance and deducts the same amount from the award to the appellee.

Accordingly, we recall and rescind our original decree and now enter the following decree:

“For the reasons assigned, the judgment appealed from is amended so as to disburse the $20,254.44 to be divided between the parties by awarding the appellant, David George Lentz, the sum of $12,831.70, and by awarding the appellee, Mrs. Carol Lynn Cue Lentz, the sum of $7,422.74. As thus amended, and in all other respects, the judgment appealed from is affirmed. Costs in this court are to be paid by the appellant.”

In all other respects, both applications for rehearing are denied.

      . An injunction prohibiting encumbrance or disposal of community assets also was issued.

      . Kennedy v. Kennedy, La.App., 391 So.2d 1193; Butler v. Butler, La.App., 228 So.2d 339; Arcemont v. Arcemont, La.App., 162 So.2d 813, and cases cited therein; Loret v. Fugler, La. App., 71 So.2d 384.

      . See Davidson v. McDonald, 131 La. 1047, 60 So. 679; Ferrier v. Mossier, La.App., 23 So.2d 341.

      . LSA-C.C.P. Art. 2133.


author: GUIDRY, Judge.

text:
    Sally M. BANTIN, Plaintiff-Appellee, v. STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 8489.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 3, 1981.
    Andrus & Doherty, Alex L. Andrus, III, Opelousas, for plaintiff-appellee.
    Warren D. Ponder, Baton Rouge, Voo-rhies & Labbe, W. Gerald Gaudet, Lafayette, for defendant-appellant.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   GUIDRY, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Sally M. Bantin, moves to dismiss the devolutive appeal of the defendant-appellant, State of Louisiana through the Department of Transportation and Development, as not being perfected within the time allowed by law. We deny the motion to dismiss the appeal.

The plaintiff sued the State of Louisiana through the Department of Transportation and Development (hereafter Department), H & S Construction and its insurer, Northwest Insurance Company, to recover damages suffered in an automobile accident. The trial court found the defendants soli-darily liable. The chronology of events is as follows:

February 24,1981 Final judgment signed by trial judge.
March 9, 1981 Notice of final judgment sent to parties.
March 10,1981 H & S Construction and Northwest Insurance Company apply for a new trial.
April 1, 1981 The trial court denies the application for a new trial.
May 22, 1981 The State of Louisiana through the Department of Transportation and Development files a motion for a devolutive appeal.
May 26, 1981 The trial court signs the order for a devolutive appeal.

The delay for taking a devolutive appeal is 60 days after the date of the trial court’s refusal to grant a new trial, where notice of the refusal is not required. LSA-C.C.P. Art. 2087(2). The motion for a devolutive appeal was filed with the Clerk of Court on the fifty-first day after the trial court’s denial of the application for a new trial.

The plaintiff contends that since the Department did not apply for a new trial, the Department’s delay for perfecting a devolu-tive appeal began to run after the expiration of the delay for applying for a new trial. LSA-C.C.P. 2087(1).

The issue presented is whether the timely filing of an application for a new trial, by one or more of the defendants in a lawsuit, suspends the running of appellate delays to those defendants who have not applied for a new trial.

This court in Billeaud v. Perry, 336 So.2d 539 (La.App. 3rd Cir. 1976) ruled that an appeal by the plaintiff was premature and subject to dismissal where an application for a new trial by the third-party defendant and the intervenor had not been acted upon by the trial court. The court stated:

“While recognizing that there is authority to the contrary (Thibodeaux v. Lock Clinic, 299 So.2d 574 [La.App. 4 Cir. 1974]; Department of Highways v. D &J Realty Company, Inc., 245 So.2d 465 [La. App. 2 Cir. 1971]), the better rule in the interest of judicial economy and orderly procedures is that the timely filing of a motion for new trial, by one or more of the parties to a lawsuit, holds the previously signed judgment in abeyance until a final judgment decides all issues as to all parties in the suit. LSA-C.C.P. art. 1971, 2164; Simmons v. Beauregard Parish School Board, 293 So.2d 226 (La.App. 3 Cir. 1974).

Since the application for a new trial holds the previously signed judgment in abeyance as to all the parties until a final judgment is rendered, the delays for taking a devolutive appeal cannot begin to run until such a final judgment is rendered. It would be incongruous to hold that an appeal by any party filed before an application for a new trial is acted upon is subject to dismissal as being premature yet at the same time the delay allowed for taking a devolutive appeal is running against those parties who did not apply for a new trial.

We do not consider that our decision in Billeaud, supra, and in this case conflicts with Thurman v. Star Electric Supply, Inc., 283 So.2d 212 (La.1973), on which case mover primarily relies.

In Thurman, supra, the appellate court, in dismissing an appeal as untimely, held that under C.C.P. Art. 1971 a new trial granted to a party on part of the issues did not hold a judgment in abeyance as to other issues and parties unless the judgment is ordered held in abeyance by the trial judge. In reversing the Court of Appeals, our Supreme Court adopted neither the rule as announced by the Court of Appeal nor the reasoning advanced by the appellant, who argued that if any application has been timely filed the delay for taking an appeal for any party begins to run only after the refusal to grant an application for a new trial. In Thurman, supra, the Supreme Court recognized that that case represented a conflict between the abhorrence to “piecemeal appeals” and a liberal rule promoting the efficient disposition of litigated issues as soon as possible. In resolving this conflict the Supreme Court, in effect, concluded that a new trial application by one party does not necessarily extend another party’s delay for appealing. However, where the issues are interrelated to the extent that one party’s motion and the trial court’s action thereon substantially affect the non-moving party or parties the application for rehearing by one will extend the delay for taking an appeal for all parties. In the instant case, the trial court judgment found the defendants solidarily liable. The granting of a new trial as to one of those defendants would certainly have affected the other defendants.

The above being considered, under the Thurman rationale the timely application for a new trial filed by H & S Construction Company and Northwest Insurance Company operated to extend the delay allowed the Department for appealing. As stated in Thurman:

“... Appeals are favored in the law, and should not be dismissed unless the law clearly requires a dismissal. Smith v. Board of Commissioners of Port of New Orleans, 262 La. 96, 262 So.2d 383 (1972).”

For the above and foregoing reasons, the motion to dismiss is denied. The plaintiff-appellee is to pay the cost of these proceedings.

MOTION DENIED.

      . LSA-C.C.P. Art. 2087 states:
      Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
      (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
      When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolu-tive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.

      . A devolutive appeal is perfected upon the timely filing of the motion with the Clerk of Court. Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La.1981).


author: CUTRER, Judge.

text:
    Sally M. BANTIN, Plaintiff-Appellee-Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al., Defendants-Appellants-Appellees.
    No. 8489.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Voorhiesand Labbe, W. Gerald Gaudet, Lafayette, for defendants-appellants-appel-lees.
    Andrus & Doherty, James Doherty, Jr., and Alex Andrus, III, Opelousas, for plaintiff-appellee-appellant.
    Warren Ponder, Baton Rouge, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is an appeal by the State of Louisiana, through the Department of Transportation and Development and the contractor, H & S Construction Company, Inc., and its insurer, from a trial court judgment awarding Sally Bantin damages she incurred when her vehicle struck a raised manhole in a street (La. U.S. 190) that was under construction in Opelousas, Louisiana.

On April 4, 1973, at approximately 3:30 P.M., plaintiff was driving her automobile north on Union Street in the city of Opelou-sas. She started to cross the intersection of Vine and Union Streets when her car came to a sudden halt throwing her into the steering wheel of the car. She suffered bruises to her abdomen, legs and face. Upon investigation, it was discovered that the crossmember of the frame of her car had hit a protruding manhole which had been raised during the road construction on Vine Street. Suit was filed against the State of Louisiana through the Department of Transportation and Development (State), H & S Construction Company, Inc. (H & S), and its insurer, Northwest Insurance Company (Northwest), for damages due to personal injuries and property damage.

The trial court rendered judgment against the defendants, in solido, for general damages in the amount of $25,000.00. Damages for past and future medical expenses, vehicle damage and wrecker service were also awarded.

The State, H & S and its liability insurer appeal presenting the following issues:

(1) Whether the State and/or H & S were negligent;
(2) Whether plaintiff was guilty of contributory negligence;
(3) Whether the general damages awarded were excessive; and
(4) Whether the State is entitled to indemnity from H & S and its insurer.

LIABILITY OF THE STATE AND/OR H & S

The State contracted with H & S for the resurfacing of Vine Street (also known as U.S. 190) in the city of Opelousas. The existing asphalt surface was removed. It was then discovered that the subbase of the highway had deteriorated requiring that it also be removed. After this removal, and before resurfacing began, it was necessary to raise several manholes along Vine Street in order that they would be level with the surface of the new asphalt when it was applied. One of these manholes was located close to the middle of the intersection of Vine and Union Streets.

The plaintiff was proceeding north on Union Street approaching the Vine Street intersection. She was driving slowly. A witness who was following plaintiff stated that he was traveling 10 to 12 miles per hour and the plaintiff’s car was not pulling away from him. Plaintiff started through the intersection, intending to travel over the manhole. The crossmember of the frame of her car caught the protruding manhole; the car halted abruptly, causing her injuries and car damage.

Two signs had been placed along Union Street warning the public of “construction ahead” and “bump.” There were no signs, barricades or any other warnings of the specific danger of a protruding manhole.

The cause of the accident in question was the unusual height of the manhole above the level of Vine Street. The estimates of its height by the various witnesses varied from four to eight inches. Robert Wolf, an engineer, stated that the ground clearance of plaintiff’s car was five inches. This being so, the manhole was protruding slightly more than five inches as the frame of plaintiff’s car struck the manhole near its top.

Andrew Quirk, the construction engineer for the State, testified that barricades around the manhole had previously been installed but truck traffic frequently struck the barricades causing a problem of maintenance. Quirk decided that the motorists would be protected if a beveled ring of asphalt would be placed around each manhole. He explained that he informed H & S employees to install such a bevel and to do so using a ratio of one inch to twelve inches. By ratio of one inch to twelve inches he explained that, for each inch of manhole height, the ring of asphalt would extend outward twelve inches. If the manhole was five inches high, the ring of asphalt would begin at the top of the manhole and would be beveled outward for 50 inches in all directions around the manhole. He stated that the beveled asphalt, placed upon a one inch to twelve inches ratio would allow vehicles to safely travel over the manhole without striking it with their undercarriages.

The evidence is clear that, in this case, the height of the manhole was near five inches. It was equally clear that the beveled asphalt extended outward no. more than two feet from the manhole. A vehicle traveling over the manhole would not be protected from striking the manhole ring with its undercarriage. The bevel had been placed upon this manhole several days before the accident. The asphalt used in the beveling process was beginning to deteriorate when the accident occurred.

Both the State and H & S had employees on this job whose responsibility was to attend to the safety of the public and to rectify any hazardous condition that might have existed. These persons had the authority and duty to order the immediate correction of any hazardous condition.

The question arises as to whether the State and/or H & S performed the duty to protect the public against the hazardous condition under the facts presented.

The general principles regarding the State and its contractor’s duties to the public while highway construction is in progress is set forth in the case of Knotts v. State, Dept. of Highways, 395 So.2d 419, 422, 423 (La.App. 3rd Cir. 1981), writ den., 400 So.2d 669 (La.1981), wherein this court held as follows:

“We recognize the necessity of construction along our highways and that hazards will often necessarily exist during the course of construction. We are aware that the general duty of the Department to maintain the highways in a reasonably safe condition are relaxed somewhat in connection with construction activities. This duty, however, is relaxed according to the reasonable necessities of the circumstances. Hazardous conditions, created by construction work on a highway, must be remedied within a reasonable length of time. It is a breach of the Department’s duty to allow a hazardous condition to exist for an unreasonable length of time, particularly when it is within the capability of the Department to eliminate the hazard.
“ ‘What constitutes a reasonable time to complete construction and to eliminate construction defects depends upon the circumstances of each case and involves consideration of factors such as the extent of the project, emergencies, availability of materials and manpower, priorities of projects, safety and economic aspects of construction, the nature and degree of the hazard created, the ability to adequately warn, and other factors.’
“Brandon v. State, Through Dept. of Highways, 367 So.2d 137, 143 (La.App. 2nd Cir. 1979), writs ref’d, 369 So.2d 141 (La.1979).
“The jurisprudence holds that anyone contracting with the Department to do road repair is obligated not to expose the traveling public to undue hazards. Hale v. Aetna Casualty & Surety Co., 273 So.2d 860 (La.App. 2nd Cir. 1973), writ den., 275 So.2d 867 (La.1973).”

As we apply these principles to the facts herein, we have no difficulty in agreeing with the trial court’s conclusion that both the State and H & S were negligent when they knowingly allowed the manhole hazard to exist which was the cause of the accident and injuries to the plaintiff. The lack of proper warnings, barricades, or the improper installation of the asphalt bevel round the manhole was a breach of duty both by the State and H & S. Both the State and H & S had inspectors on this job to protect the public from such a hazard. They had authority to make any necessary corrections to accomplish such duty. These employees of the State and H & S failed in their duties. Thus, both the State and H & S will be liable for plaintiff’s damages unless she was contributorily negligent.

CONTRIBUTORY NEGLIGENCE OF PLAINTIFF

The State alleges that plaintiff’s vehicle was defective and thus did not have the proper ground clearance. This argument lacks merit. The evidence simply does not support such a contention. It was not shown that the ground clearance of plaintiff’s vehicle was unusually low nor did defendants prove that the vehicle was defective.

The defendants also contend that plaintiff was negligent by not seeing the height of the manhole and going around same. Even though plaintiff could see the protrusion of the manhole, it was not shown that plaintiff could have been able to judge its height and then make a determination whether her vehicle would clear the manhole when she went over it. A motorist has a right to assume that the highway is safe and maintained in a reasonably safe condition. Without any barricades or other warnings around the manhole, plaintiff had a right to assume that she could safely traverse the intersection, traveling over the manhole. We conclude that the plaintiff was free of negligence.

INDEMNITY

The State appealed the trial judge’s dismissal of its demand for indemnity from H & S. The trial court found that the indemnity agreement did not express an agreement to hold the indemnitee harmless on account of its own negligent acts. The relevant section of the Louisiana Standard Specifications for Roads and Bridges (1977 edition) which pertains to the indemnity claim of the State is:

Section 107.16:

“The contractor shall indemnify the Department, its officers and employees from all suits, actions or claims of any character brought because of any injuries or damage received or sustained by any person or property on account of the operations of the said contractor; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any negligent act, omission or misconduct of said contractor; or because of any claims or amounts recovered from any infringements of patent, trademark or copyright; or from any claims for amount arising or recovered under the Workmen’s Compensation Act or any other law, ordinance, order or decree; and so much of the money due the said contractor under and by virtue of his contract as may be considered necessary by the Department for such purpose, may be retained for the use of the State; or, in case no money is due, his surety may be held until such suit or suits, action or actions, claim or claims for injuries or damages as aforesaid have been settled and suitable evidence to that effect furnished to the Department; except that money due the contractor will not be withheld when the contractor produces satisfactory evidence that he is adequately protected by public liability and property damage insurance, including railroad protective liability insurance in accordance with Subsection 107.08.”

The State argues that this indemnity agreement requires the contractor to indemnify the State from all actions arising due to work undertaken by the contractor, including the claim herein. We conclude that such indemnity agreement does not impose an indemnity obligation upon H & S since the State was also negligent.

In Polozola v. Garlock, Inc., 343 So.2d 1000, 1003 (La.1977), the Supreme Court stated:

“A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through is own negligent act, unless such an intention was expressed in unequivocal terms.” (Citations omitted.)

In Green v. Taca International Airlines, 304 So.2d 357, 361 (La.1974), the Supreme Court, in passing on applicability of an indemnity agreement, stated:

“Agreements have the effect of law between the parties, and the courts are bound to give effect to all such contracts according to the true intent of the parties. That intent is determined by the words of the contract when they are clear and explicit. La.Civil Code art. 1945 (1807). Additionally, a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms. This rule is equally applicable whether the damage is caused by the sole negligence of the indemnitee or the concurrent negligence of the in-demnitee and indemnitor.”

See also, Daigle v. Lang, 377 So.2d 1384 (La.App. 4th Cir. 1979), writ den., 381 So.2d 510 (La.1980); LSA-C.C. articles 1945-1955. We find no language in the indemnity contract which would make H & S an indemnitor of the State’s own negligent acts. The State’s contention that it is entitled to indemnity from H & S for its own negligent acts is without merit.

GENERAL DAMAGES

The State contends that the trial court’s general damages award of $25,-000.00 was excessive.

The trial judge, in his reasons for judgment, fully set forth the injuries and resulting medical problems incurred by plaintiff in the accident. We adopt such reasons as our own:

“Mrs. Bantin was taken by police officer Alexander Peck to the office of Dr. Seldon Deshotels, who attended her. He then referred Mrs. Bantin to Dr. Richard Bidstrup, an ear, nose and throat specialist so that she could receive further attention and treatment. Dr. Bidstrup, who examined the plaintiff five days subsequent to the accident, found her to have suffered a nasal septal fracture with subluxation of the quadrangular cartilage from the maxillary crest, which left a depression of the cartilaginous portion of the dorsum of the nose, and several small chip fractures of the nasal bone. The doctor also found her to have sustained a severe deflection of the nasal septum with a compromise of the nasal airway.
“Dr. Bidstrup scheduled Mrs. Bantin for surgical repair of her nose, and on April 18, 1979, he performed an open reduction of the fracture and reconstructed the bridge of her nose. During the forty-eight hours after the surgery, when her nose remained packed, she suffered intense pain. She was discharged from the hospital on April 21, and five days later when she was seen again by Dr. Bidstrup, her pain was not so severe as when he had first examined her, nor as it had been during the immediate post-operative period; and the swelling of her face had subsided considerably.
“On August 7, 1979, Dr. Bidstrup noted that the plaintiff had a mild nasal defect or depression on the dorsal portion of the nose; and although Mrs. Bantin’s nose had been straightened by the surgery and a good airway had been achieved, in the course of the healing process, her nose returned somewhat to its post-traumatic state. Mrs. Bantin suffered difficulty in breathing through her nose, a condition which in Dr. Bidstrup’s opinion was not profound, and would be aggravated by nasal congestion and allergies.
“It was Mrs. Bantin’s testimony that one week after the accident, except for the condition of her nose, the other soreness and bruises occasioned by the accident disappeared. She maintained, however, that her senses of smell and taste have greatly diminished since the accident, that she has difficulty breathing, and that she suffers periodic pain from the tip of the bridge of her nose to her cheek and teeth.
“Mrs. Bantin’s testimony is corroborated by Dr. Darryl Henderson, a specialist in plastic and reconstructive surgery, whom she consulted in November of 1979. On examination, Dr. Henderson found the plaintiff to have depression on the top part of her nose with a dorsal hump, giving her nose an S-shaped appearance. Dr. Henderson further explained his findings by referring to photographs of the plaintiff which have been attached to his deposition. He noted that Mrs. Bantin’s nose appears drooped on her lip with a too-small angle between her lip and nose. He also observed that her nasal pyramids are wider than they should be, and that her nostrils, which should be elliptical, are round-shaped and not quite symmetrical.
“Dr. Henderson found Mrs. Bantin’s nasal airway to be diminished on both sides with her nasal terminals too large and blocking air flow. He estimated a $1600.00 surgical fee for the repair of this condition, in addition to hospital expenses of some $1200.00 to $1600.00. He stated also, that if the repair were performed at the Surgery Clinic her expense for the Surgery Clinic would be approximately $575.00 to $850.00, as opposed to the greater hospitalization costs if surgery were performed in the hospital. It was his testimony, too, that if Mrs. Bantin underwent surgery she would require a nasal pack for one week after surgery and that her post-operative pain would decrease as healing progressed. He stated also that in his opinion surgery would improve her appearance and breathing, but that it may not improve her diminished sense of smell, which was occasioned by the accident.”

As we examine damage awards, we are guided by the principles enunciated in the case of Coco v. Winston Industries, Inc., 341 So.2d 332, 334 (La.1976), where the Supreme Court held as follows:

“ ‘Unless the record demonstrates that the trial court abused the “much discretion” provided for in fixing damages (C.C.1934), the appellate court should not disturb the award.. .. The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court.’ ....
“ ‘A reviewing court might well disagree with the amount of the award fixed by the jury, but it is not entitled to substitute its opinion for that of the trier of fact.’ .. . . ”

We find no abuse of discretion by the trial court in its award of $25,000.00 to plaintiff as general damages.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal shall be paid by the defendants-appellants.

AFFIRMED.

      . A motion to dismiss the State’s appeal was filed by H & S and its insurer. This motion was denied in a separate opinion. Bantin v. State of Louisiana, through the Dept, of Trans. & Development, et al., - So.2d -(La.App. 3rd Cir. 1981), Docket Number 8489.

      . We have been referred to the case of Oglesby v. Donald M. Clement Con., Inc., 367 So.2d 1328 (La.App. 4th Cir. 1979), where $20,000.00 was awarded for similar injuries.


author: PER CURIAM.

text:
    Anna Burglass D. DUNKER v. NEW ORLEANS BAPTIST THEOLOGICAL SEMINARY, et al.
    No. 5-256.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 1982.
    A. Morgan Brian, Jr., New Orleans, for appellees.
    Anna B. Dunker, pro per.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   ON MOTION TO DISMISS APPEAL

PER CURIAM.

Appellees, New Orleans Baptist Theological Seminary, et al, moved to dismiss a devolutive appeal taken by Anna Burglass DeSalvo Dunker from the refusal to grant her motion for correction of judgment on January 18, 1982.

The procedural sequence is as follows: A judgment was rendered on November 2, 1981, adverse to plaintiff-appellant. No motion for new trial was made nor was there any petition for appeal. On January 18, 1982, plaintiff-appellant filed a motion for correction of judgment complaining “that the final judgment rendered in the above cause is erroneous in that it dismisses portions of the cause which are presently under appeal and further dismisses the action as to Finance Funds Group, Inc.” The motion asserted that the judgment should be amended to “affect only the party with issue joined and appeal allowed.” The judge denied that motion the same day and the next day, January 19, 1982, plaintiff-appellant filed a motion for a devolutive appeal from the order of January 18. It is this appeal which is the subject of the motion to dismiss.

We hold that there is no right to appeal that order and the appeal is dismissed. C.C.P. Article 2162. The judgment sought to be amended, that of November 2, 1981, became final and executory due to failure to request a new trial and lapse of the time allotted for suspensive and devolutive appeals, the delay for devolutive appeal lapsing on January 11,1982. This pleading was filed seven days later.

C.C.P. Article 1951 provides that a final judgment may be amended by the trial court at any time for two purposes: 1) to alter the phraseology of the judgment but not the substance; or 2) to correct errors of calculation. It is apparent from the face of the document that the matters sought to be changed are matters of substance, i.e., dismissal of portions of the suit, and Article 1951 does not apply. Plaintiff-appellant is not entitled to have us inquire into the validity of the November 2 judgment by resort to an appeal from the denial of this interlocutory decree after her time for applying for new trial and appeal have expired. To rule otherwise would be to permit litigation to continue forever without conclusion.

Accordingly, the motion to dismiss is granted, and we enter judgment dismissing the appeal of Anna Burglass DeSalvo Dunker filed on January 19, 1982, and signed on January 21, 1982.

APPEAL DISMISSED.


author: STOKER, Judge.

text:
    Jerry K. TILLEY and Nora M. Tilley, Individually and as Natural Tutrix For the Use and Benefit of Keith Ashley Tilley, Plaintiffs-Appellants, v. MOUNT VERNON INSURANCE COMPANY, Lovelace J. Hebert, Individually and Lovelace J. Hebert d/b/a Gulfview Motel Apartments, Defendants-Appellees.
    No. 8653.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Brame, Bergstedt & Brame, John E. Bergstedt, Lake Charles, for plaintiffs-appellants.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, John S. Bradford, Lake Charles, for defendants-appellees.
    Before GUIDRY, SWIFT, and STOKER, JJ.
   STOKER, Judge.

This is a suit for damages arising out of an accident in which the plaintiffs’ three year old son lost an eye. The accident occurred at the Gulfview Motel Apartments in Holley Beach, Cameron Parish, Louisiana, on the evening of April 13, 1979. Plaintiffs seek to hold liable their host, Robert Johnson, who was a guest-tenant at the motel facility, and to also hold Johnson’s liability insurer. The issue in this appeal is the correctness of the trial court’s action in granting a directed verdict rather than submitting the case to the jury.

The plaintiffs are divorced. Nora M. Til-ley has custody of their son, Keith Ashley Tilley, and is suing as natural tutrix of her minor son. In addition, Jerry Tilley and Nora Tilley are suing individually for medical expenses. The trial court granted a directed verdict after the close of defendants’ evidence and plaintiffs’ waiver of rebuttal, dismissing the plaintiffs’ claim against Robert Johnson and his insurer, State Farm Fire & Casualty Insurance Company. The plaintiffs have appealed this judgment.

FACTS

Defendant Robert Johnson (Johnson) is a part-time employee of plaintiff Jerry Tilley (Tilley) in Shreveport. Johnson had reserved a room at the Gulfview Motel Apartments for the Easter weekend of 1979. He arrived at the motel with his wife and child sometime during the night of Thursday, April 12, 1979. On the following night, Tilley arrived at the motel with his son, Keith, who was visiting with Tilley that weekend according to the visitation agreement between him and his ex-wife, Nora. Johnson had invited Tilley and his son to join him and his family at the motel for the weekend.

Johnson had taken with him two motorcycles which he was storing under the back end of the motel building which stood upon pilings. Sometime shortly after Tilley arrived at the motel, the subject of the motorcycles arose in conversation, and Keith was told that he might be able to ride on one of the vehicles with his father or Johnson on the following day. Keith reportedly became very excited and it was decided to show him the motorcycles that night. Johnson led the way, carrying a flashlight. Keith was given a small portable lamp. Tilley carried no light source. The rear of the building was lit by a security light which illuminated part of the area under the building.

After briefly viewing the motorcycles, the parties turned to go. Johnson did not use his flashlight to light the way out from under the building because he felt that the way was clearly lit by the outside security light. Keith, who was slightly ahead of his father and Johnson, struck his eye on something as he emerged from under the building. It was later concluded by all parties that it was most likely that Keith had struck a bent nail protruding slightly from the end of one of several weather-beaten boards in a crude work bench which had been attached to the pilings for the use of the motel patrons in cleaning fish. The work bench was not underneath the motel structure but extended from the support pilings outward from the structure. Thus it would have been illuminated by the security light. The testimony indicated the light provided enough illumination for people to clean fish after dark. The injury to Keith’s eye necessitated its removal and eventual replacement by an artificial eye.

The plaintiffs ground their suit against Johnson on his alleged negligence in leading Keith and his father into a hazardous area and his failure to use the flashlight to illuminate Keith’s exit from under the building. The defendants moved for a directed verdict at the close of plaintiffs’ evidence, which motion the trial court denied. After defendants presented evidence and rested their case, they again moved for a directed verdict. The trial court at this time granted the motion. Plaintiffs appeal that decision, alleging that (1) the motion for a directed verdict was not timely; and that (2) the granting of the motion was error in that the trial court “made its own conclusion, based upon conflicting evidence, inferences, and credibility, which is the exclusive province of the jury.” These arguments will be addressed below.

TIMELINESS OF THE MOTION FOR DIRECTED VERDICT

Plaintiffs contend that it was error for the trial court to grant the defendants’ motion for directed verdict made at close of defendants’ case. Plaintiffs allege that the motion was untimely following the denial of a similar motion made at the close of the plaintiffs’ evidence.

Article 1810 of the Louisiana Code of Civil Procedure authorizes the granting of a directed verdict in civil trials. That statute, in Section A pertaining to jury trials, provides:

“A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”

Plaintiffs refer this court to the opening words of Article 1810, “A party who moves for a directed verdict at the close of the evidence offered by an opponent ... ”, and contend that this language precludes a party from moving for a directed verdict after the presentation of the moving party’s evidence. Under plaintiffs’ interpretation, the motion submitted by defendants at the close of plaintiffs’ evidence was the only motion timely submitted. This motion was denied by the trial court. The motion submitted by defendants at the close of defendants’ evidence would not be timely under plaintiffs’ reading of Article 1810.

We reject plaintiffs’ construction of LSA-C.C.P. art. 1810. The statute clearly requires that a motion for directed verdict be submitted after the close of evidence of the mover’s opponent, but it does not prohibit the submission of the motion after the close of the mover’s and his opponent’s evidence. Stated otherwise, Article 1810 permits a party to move for a directed verdict at any time after the close of the evidence offered by an opponent, provided that the case as to that opponent has not already been submitted to the jury.

Plaintiffs cite the case of Duplechin v. John Doe, Rimmer & Garrett, Inc., et al., 365 So.2d 53 (La.App. 3rd Cir. 1978), for the proposition that the words “at the close of the evidence offered by an opponent” in Article 1810 are to be interpreted literally. In the Duplechin case, this court reversed a decision in which a motion for a directed verdict was granted after the plaintiff had completed the liability portion of his evidence but had not yet presented his evidence concerning quantum. The court held that under Article 1810 a motion for a directed verdict may be granted only after the close of the nonmover’s evidence. This ruling is not inconsistent with the interpretation we have given to Article 1810 in the instant case.

Plaintiffs contend further that, unlike the Federal Rule of Civil Procedure from which it is derived, LSA-C.C.P. art. 1810 does not permit a motion for a directed verdict to be made at any time later than the close of the plaintiff’s evidence. The wording of LSA-C.C.P. art. 1810(A), quoted above, is identical to that of F.R.C.P. 50(a). F.R.C.P. 50(b), which was not adopted in Louisiana’s Code of Civil Procedure, provides the procedure for a motion for judgment notwithstanding the verdict. A motion for directed verdict made at the close of all the evidence is part of the procedure required by that section of F.R.C.P. 50. Plaintiffs argue in brief that the failure of the Louisiana legislature to adopt paragraph (b) of the federal rule, or to change the wording of Article 1810(A) accordingly, indicates the legislative intent to require that the motion for the directed verdict be submitted immediately after the close of the plaintiff’s evidence.

Plaintiffs’ contention is not borne out by federal practice. Federal courts, under F.R.C.P. 50(a), allow the defendant to move for a directed verdict after presenting evidence. Under federal jurisprudence, a motion for directed verdict is considered to be waived when the defendant puts on evidence, but the defendant may renew the motion at the close of all the evidence, Federal courts have also encouraged the trial court to defer ruling upon the motion for a directed verdict until both sides have finally rested.

The purpose and use of F.R.C.P. 50(a) is discussed in Wright and Miller’s Federal Practice and Procedure:

“Rule 50(a) provides for a motion for a directed verdict at the close of the plaintiff’s evidence or at the close of evidence and before the case is submitted to the jury. It enables the court to determine whether there is any question of fact to be submitted to the jury and whether any verdict other than the one directed would be erroneous as a matter of law. It is conceived as a device to save the time and trouble involved in a lengthy jury determination.” (Emphasis supplied).

In light of the foregoing, we cannot say the motion for directed verdict adopted from F.R.C.P. 50(a) in LSA-C.C.P. art. 1810(A) was intended by the legislature to be brought only immediately after the close of the plaintiff’s evidence. Therefore, a motion for directed verdict under LSA-C. C.P. art. 1810(A) may be brought at the close of all evidence when both sides have rested provided that the case has not yet been submitted to the jury. This is precisely what occurred in this case because prior to allowing the second motion for directed verdict to be made, it was determined that plaintiffs had no rebuttal and counsel agreed that all the evidence had been submitted. (See footnote 2.) The procedure followed by the trial court in this case was correct.

STANDARD FOR DIRECTED VERDICTS

Having determined that the trial court was not in error in considering the motion for directed verdict at the close of evidence, we now must consider whether the trial court applied the correct standard in granting the motion.

LSA-C.C.P. art. 1810 does not provide the standard to be used in considering a motion for directed verdict. That standard has been supplied jurisprudentially. This court in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979), held that the standard applicable to Article 1810(A) is that applied by the Federal court in considering motions for directed verdicts since the source of the Louisiana article is the Federal Rules of Civil Procedure. In the Campbell decision, we adopted the following standard as stated by the U. S. Fifth Circuit Court of Appeal in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969):

“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.”

We now decide whether the trial court correctly applied this standard of proof.

SUFFICIENCY OF EVIDENCE

Plaintiffs allege that Johnson negligently caused the injury sustained by Til-ley. Generally, Johnson is charged in plaintiffs’ petition with failure to inspect the premises, failure to warn his guests of dangers of which he was aware or should have been aware and failure to correct “any such defects”.

We note preliminarily that, while it is reasonably certain that Keith injured his eye while emerging from underneath the motel, it is not clear just how he did it. This point is immaterial, however, because the conclusion the jury might have reached which would have been most favorable to plaintiffs is that Keith struck either the protruding nail point or he simply struck the protruding board or one of the others in the fish board structure. Any considerations the jury might have made in assessing the responsibility of Robert Johnson (cause in fact, legal cause, duty-risk analyses, legal policy, and so on) require a clear picture of the arrangement of the physical features at the scene of the accident.

The fish board and its location is graphically shown in various pictures filed in evidence. As stated above, it is not located beneath the motel building but is outside attached to the pilings supporting the motel building. Therefore, it was illuminated by whatever light was shed by the security light. The security light was located approximately thirty feet from the building and shed some light underneath the building.

The fish board itself, used for cleaning fish, appears to have been constructed of used lumber. A schematic diagram and illustrative sketches of the fish board accompany this opinion for aid in description. Something in the nature of 2" X 8" boards are nailed horizontally onto two pilings so as to extend outward from the building, and each is supported by struts of 2 X 4 or 2X6 lumber. The two horizontal pieces serve as support for the boards constituting the surface of the working area (referred to inclusively as the “fish board”) on which the fish were placed for cleaning. Approximately four such individual boards are depicted in the pictures with spaces in between them. These boards extend approximately two feet sidewise beyond the horizontal supports on which they rest. This extension or overhang appears to be approximately a foot and a half to the side of the pilings. At the end where Keith was injured, the board farthest from the piling is the board which contained the nail in it. The nail appears to have been driven through from the underneath side of the board which appears to be at least two inches thick. The nail protrudes from the top of the board about one-half to one inch from the end of the board. The nail had been bent over the end of the board but the tip of the nail (the sharp end) tilted upward slightly and had not been beaten into the end of the board. Some of the other boards between the end board and the piling appear to be rotten and their ends were quite jagged.

Young Keith Tilley was under four years of age, and possibly the boards, including the one with the nail on it, were at about Keith’s eye level. Evidently, his eye came in contact with either the nail, the edge of the board with the nail in it, or one of the other boards. No one actually knows what happened and the assumptions of the parties were formed after the incident when the premises were inspected later to determine what might have happened.

From the description given above, for Johnson to have incurred liability for Keith’s mishap and injury, it would have been necessary for the jury to have found Johnson was negligent, that the negligence was a cause in fact of the accident and that it was a legal cause of the accident. This involves a duty-risk analysis. See Professor Ferdinand F. Stone’s work, Tort Doctrine, Louisiana Civil Law Treatise, Volume 12, Section 42, in which he discusses the theory developed in Dixie Drive It Yourself System of New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962) and the later cases which followed it and further developed the concepts for resolution of such cases.

Except for the precise manner in which Keith incurred his injury, the facts are clear. Only Johnson and Keith’s father, Jerry Tilley, were present and their testimony as to what occurred before and after the accident is not in conflict. From their testimony it is clear that the fish board was located within the illumination of the security light located behind the motel building.

From the facts given to the jury and the description of the physical layout of the area where the accident occurred, it is clear that the fact of the parties having been underneath the motel (and any lack of illumination there) played little or no part in causing the accident. As the eye injury was inflicted by contact with some part of the fish board or the nail embedded in it, the injury occurred as or after Keith emerged from underneath the motel into the illumination. The only part that going beneath the motel played in the unfortunate affair is that the mishap occurred as the parties emerged from under the motel. In fact, a person of Keith’s height might just as easily have come in contact with the fish board or the nail in going toward the underneath area of the motel as in coming out, and further, might have done so without having planned to go beneath the motel.

In conformity with the standard adopted in Campbell v. Mouton, supra, we assume, as the most reasonable inference favorable to plaintiffs, that Keith’s eye did come in contact with some part of the fish board and that something from the board did penetrate his eye. Therefore, there are no facts upon which reasonable minds might differ. This means that the only thing left to the jury was to apply a standard of conduct to the actions or alleged failures of Johnson. This function is often regarded as a function of the court rather than a fact finding function for the jury. However, the respective functions of the courts and juries are not easy to clearly define or separate. See Prosser, Handbook of the Law of Torts, Fourth Edition, Sections 37, 41 and 45.

As we see the matter, any jury charge would have required the trial court to instruct the jury in the law necessary for the jury to decide whether Johnson met, or failed to meet, the proper standard under the circumstances. Any finding of liability on the part of Johnson would require a finding that he failed to meet some standard of conduct which unreasonably exposed Keith to the risk of injury to his eye such as he sustained. Although Johnson was not the owner of the premises and was not aware of the risk posed to a young child by the protruding boards, plaintiffs maintain that he should have been aware of the risk because he should have inspected the premises. Even if he had known of the protruding nail or had noted the jagged edges and ends of various boards in the fish board, it would be necessary to find that Johnson should have foreseen and anticipated that a young child might injure himself as Keith did. Although foreseeability has been a touchstone in determining negligence liability, Turner v. Caddo Parish School Board, 252 La. 810, 214 So.2d 153 (La.1968), our Supreme Court has observed in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972) that foreseeability is not always a reliable guide, and is not the only criterion for determining whether there is a duty-risk relationship. In that case the Supreme Court stated: “Just because a risk may foreseeably arise by reason of conduct, it is not necessarily within the scope of duty owed because of that conduct.”

We agree with the comments and observations of Professor Stone in his Tort Doctrine, cited above, and in his conclusion that the process of analysis to determine negligence liability as developed by the courts is, in the end, often only a matter of reaching court policy in a given situation; that is, the finding of negligence is a decision made by the courts to extend the protection of the law to exposure to certain risks. In Hill v. Lundin & Associates, the Supreme Court summed up the concept in these words:

“Where the rule of law upon which a plaintiff relies for imposing a duty is based upon a statute, the court attempts to interpret legislative intent as to the risk contemplated by the legal duty, which is often a resort to the court’s own judgment of the scope of protection intended by the Legislature. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298; Pierre v. Allstate Ins. Co., [257 La. 471, 242 So.2d 821] supra. Where the rule of law is jurisprudential and the court is without the aid of legislative intent, the process of determining the risk encompassed within the rule of law is nevertheless similar. Malone, Ruminations on Dixie Drive It Yourself, 30 La.L.Rev. 363 (1970); McDonald, Proximate Cause in Louisiana, 16 La.L.Rev. 391 (1956). The same policy considerations which would motivate a legislative body to impose duties to protect from certain risks are applied by the court in making its determination. “All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.” Malone, Ruminations on Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956).”

It is our conclusion that the risk to which Keith was exposed under the circumstances of this case was beyond the protection afforded by law with respect to any duty owed by a transient guest at the motel to a guest of his own. The place where Johnson’s vehicles were parked underneath the motel was not rented to him and was not under his control or custody. The same applies to the fish board and the area around it. He had been allowed to park the vehicles where they were by the owner. As a matter of legal policy, any role played by Johnson in Keith’s injury was too remote to justify imposing legal liability on him. We conclude that it would have been the trial court’s duty to frame such jury instructions that the jury in considering all the evidence as provided in Campbell v. Mouton, supra, could not as reasonable persons arrive at any other verdict than that Johnson was not legally liable for Keith’s injury.

Therefore, there was no function for the jury to perform and the trial court did not commit error in granting a directed verdict on the basis of all the evidence. We affirm the trial court’s ruling and judgment. Plaintiffs-appellants are assessed with the costs of this appeal.

AFFIRMED.

      . The defendants originally included Lovelace J. Hebert, who was sued both individually and as owner of Gulfview Motel Apartments, and Mount Vernon Insurance Company, Hebert’s and Gulfview’s liability insurers. As third party plaintiffs, Hebert, Gulfview, and Mount Vernon sued Robert Johnson and reconvened against Jerry K. Tilley. Through a supplemental and amending petition plaintiffs made Robert Johnson an additional defendant along with his insurer, State Farm Fire & Casualty Insurance Company. Hebert, Gulfview, and Mount Vernon settled out of court with the plaintiffs and were dismissed from the present suit. The remaining parties in this appeal are plaintiffs Jerry K. Tilley and Nora M. Tilley, and defendants Robert Johnson and State Farm.

      . After the defendants’ case was concluded the trial court asked the plaintiffs’ counsel if plaintiffs had any rebuttal evidence. Counsel replied that plaintiffs had no rebuttal. The trial court then stated: “So in effect, all the evidence is before the court.” Plaintiffs’ counsel answered in the affirmative. (Tr. 349),

      . F.R.C.P. 50(b) states:
      “(b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.”

      . See Sm(D.C.Va.1978), footnote 1 at 1125; and Monolith Portland Midwest
        Co. v. Western Public Service Co., 142 F.2d 857 (C.C.A. 10th 1944).

      . See Guess v. Baltimore & I. R. Co., 191 F.2d 976 (C.A. 8th, 1951).

      . Wright and Miller, Federal Practice and Procedure § 2521, at 537 (1971).

      . The supplemental and amending petition in which plaintiffs made Robert Johnson and his insurer defendants alleges Johnson’s negligence as follows:
      “G.
      “The accident sued upon herein was caused in whole or in part by the negligence of ROBERT M. “BOB” JOHNSON in that the said JOHNSON had an affirmative duty to inspect the subject premises and to warn his invitees of dangers, if any, of which he knew or should have known, and further had the duty to correct or have corrected any such defects, which failure to perform said duty constitutes negligence and a proximate cause of the accident sued upon herein in the following particulars:
      (1)In failing to warn the TILLEYS of the dangers of which he knew or should have known;
      (2) In failing to take corrective action to remedy or eliminate those dangers of which he knew or should have known;
      (3) In failing to properly inspect the subject premises and ‘common grounds’ for dangers;
      (4) In leading the minor, KEITH ASHLEY TILLEY, into an unlighted area where JOHNSON knew, or should have known possible dangers existed;
      (5) In failing to take the proper precautions in leading KEITH ASHLEY TILLEY into an area of possible dangers of which he knew or should have known;
      (6) In failing to maintain a proper lookout for himself and his invitees and to warn his invitees of dangers which were visible;
      (7) In generally participating in an unsafe journey, which the said JOHNSON knew or should have known posed a danger for the minor, KEITH ASHLEY TILLEY:
      (8) Such other acts of negligence as will be more fully shown at the trial hereof.”