text:
    STATE of Louisiana v. Calvin MOORE et al.
    No. 81-K-0698.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re State of Louisiana, applying for supervisory writs. Parish of Orleans. No. 280-614.

Denied.

LEMMON, J., would grant the writ.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Ronald R. LEWIS v. STATE of Louisiana, CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 81-KH-0708.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Ronald R. Lewis, applying for writ of habeas corpus. Parish of Orleans. No. 228768-H.

Denied.


text:
    STATE of Louisiana ex rel. James R. THOMAS v. C. Paul PHELPS, Secretary of Department of Corrections et al.
    No. 81-KH-0727.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re James R. Thomas, applying for remedial writs. Parish of East Baton Rouge. Nos. 1-78-701 and 1-79-379.

Denied.


text:
    STATE of Louisiana ex rel. Gary A. DESDUNES v. Warden, Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0731.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Gary A. Desdunes, applying for writ of habeas corpus and certiorari. Parish of Orleans. No. 245-992.

Denied.


text:
    STATE of Louisiana, ex rel. Edward J. SCOTT v. Ross MAGGIO, Jr., Warden, Hunt Correctional Center.
    No. 81-KH-0752.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Edward J. Scott, applying for writ of certiorari. Parish of Orleans. No. 218-317.

Denied.


text:
    Claude DRODDY et ux. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT et al.
    No. 81-C-0755.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Claude Droddy, applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Winn. No. 14457.

Denied.

DIXON, C.J., and WATSON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Sam THOMAS v. STATE of Louisiana.
    No. 81-KH-0764.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Sam Thomas, applying for remedial writs. Parish of Bossier.

Writ Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Charles Ucless FOBB v. STATE of Louisiana.
    No. 81-KH-0782.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Charles Ucless Fobb, applying for writs of habeas corpus. Parish of Jefferson. Nos. 17948, 22547, and 22792.

Writ Denied.


text:
    STATE of Louisiana, ex rel. Manuel VARGAS v. Frank BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-0788.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Manuel Vargas, applying for remedial writs. Parish of Terrebonne. No. 86876.

Writ Denied.


text:
    STATE of Louisiana v. April TRUMP.
    No. 81-K-0805.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re April Trump, applying for supervisory writs. Parish of East Baton Rouge.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Allen R. WILLIAMS v. Frank C. BLACKBURN, Warden et al. Louisiana State Penitentiary.
    No. 81-KH-0813.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Allen R. Williams, applying for writs of habeas corpus, prohibition, certiora-ri and review. Parish of St. Mary. No. 100641.

Writ denied.

CALOGERO, J., would grant an eviden-tiary hearing.


text:
    STATE of Louisiana v. William G. VALLERY.
    No. 81-K-0822.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re William G. Vallery, applying for writ of remedial writ. Parish of East Baton Rouge. No. 3-80-315.

Denied.

LEMMON, J., would grant.


text:
    STATE of Louisiana v. Glynn Darnell WICKS.
    No. 81-K-0861.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Glynn Darnell Wicks, applying for writs of habeas corpus. Parish of Iberville. No. 3330-79.

Denied.


text:
    Edward V. RICCA v. Sydney D. LEVY.
    No. 81-C-0866.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Sydney D. Levy, applying for writs of certiorari or mandamus. Parish of Jefferson. No 214-153.

Denied.


text:
    STATE of Louisiana ex rel. Oliver COUSIN v. STATE of Louisiana.
    No. 81-KH-0883.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Oliver Cousin, applying for writ of certiorari. Parish of St. Tammany. No. 84837.

Writ Denied.


text:
    STATE of Louisiana ex rel. Reuben CRAWFORD v. STATE of Louisiana.
    No. 81-KH-0884.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Reuben Crawford, applying for writ of habeas corpus. Parish of St. Tammany. No. 83940

Writ Denied. The District Court has informed us the hearing was held.


text:
    STATE of Louisiana v. Lawrence DENT.
    No. 81-K-0894.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Lawrence Dent, applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. Nos. 8-80-7 and 9-80-67.

Writ denied.


text:
    STATE of Louisiana ex rel. Jerome MITCHELL v. Hayden J. DEES, Warden Dixon Correctional Institute.
    No. 81-KH-0898.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Jerome Mitchell, applying for writs of certiorari. Parish of West Baton Rouge. No. 69920.

Writ Denied.


text:
    STATE of Louisiana, ex rel. Norman BYRD v. STATE of Louisiana.
    No. 81-KH-0901.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Norman Byrd, applying for remedial writs. Parish of St. Tammany. No. 81276/8.

Writ Denied.


text:
    STATE of Louisiana ex rel. Robert Earl SPANN v. Frank C. BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-0904.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Robert Earl Spann, applying for writs of certiorari, prohibition, mandamus, or - habeas corpus. Parish of Concordia.

Writ denied.


text:
    STATE of Louisiana v. Darrell CAGLE.
    No. 81-K-0938.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Darrell Cagle, applying for writ of review. Parish of Lafourche. No. 103309.

Denied.


text:
    STATE of Louisiana v. Barbara FRAZIER.
    No. 81-K-1033.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Barbara Frazier, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 279-898.

Denied.

CALOGERO, MARCUS and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Roy LEWIS.
    No. 81-K-1049.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Roy Lewis, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 117234.

Writ denied.


text:
    SHREVEPORT PRODUCTION CREDIT ASSOCIATION v. The BANK OF COMMERCE.
    No. 81-C-0702.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Northwest Louisiana Production Credit Association, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 395 So.2d 862.

Writ granted.


text:
    Edward T. URSIN, III, & National Indemnity Company v. INSURANCE GUARANTY ASSOCIATION.
    No. 81-C-0850.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re National Indemnity Company, applying for writs of certiorari, and review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 396 So.2d 400.

Granted.


text:
    Frank T. CACIOPPO and Bennie L. Ippolito v. TANGIPAHOA PARISH SCHOOL BOARD.
    No. 81-C-0869.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Frank T. Cacioppo and Bennie L. Ippolito, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit.- Parish of Tangipahoa. Number 14009 and from the 21st Judicial District Court. 396 So.2d 344.

Granted.


text:
    SUCCESSION OF Felix Anthony RIGGIO.
    No. 81-C-0931.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Camilla Riggio, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. 395 So.2d 361.

Granted.


text:
    Walter FELDER v. GEORGIA PACIFIC CORPORATION, Henry K. Turner and Hartford Accident and Indemnity Company.
    No. 81-C-0977.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Walter Felder, applying for writ of certiorari, or review to the Court of Appeal First Circuit. Parish of East Baton Rouge. 393 So.2d 394.

Granted.


text:
    A. I. U. INSURANCE COMPANY v. F. J. ROBERTS et ux. F. J. ROBERTS, Jr. et ux. v. Neil B. BURRIS et al.
    No. 81-C-1001.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Margaret B. Roberts, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 395 So.2d 375.

Granted.


text:
    Webb J. POLITE et al. v. Reuben M. NEWMAN et al.
    No. 81-C-0880.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Webb J. Polite, et al, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 396 So.2d 409.

Denied.

MARCUS, J., would grant and reinstate the appeal.


text:
    Randy E. MARTINEZ v. Johney MODENBACH, Deloris Modenbach, and State Farm Insurance Company.
    No. 81-C-0922.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Randy E. -Martinez, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 396 So.2d 471.

Denied.


text:
    Silton TURNER v. J & J WELLS CONTRACTORS, INC., et al.
    No. 81-C-0939.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Silton Turner, applying for writs of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 396 So.2d 552.

Denied.

DIXON, C. J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Audrey RENFROE, Surviving Spouse of Anthony Polito, Individually and On Behalf of the Dependent Minors, Frank Joseph Polito and Samuel Wayne Mclellan v. CITY OF NEW ORLEANS, General Motors Corporation and the Royal Globe Indemnity Insurance Company.
    No. 81-C-0950.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Audrey Renfroe, etc., et al., applying for writ of certiorari to the Court of Appeal, Fourth Circuit. Parish of Orleans. 394 So.2d 787.

Denied.

DENNIS, J., would grant the writ.


text:
    Joe Edward STARK, Sr. v. TOWN OF MERRYVILLE et al. Joe Edward STARK, II v. TOWN OF MERRYVILLE et al.
    No. 81-C-0962.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Joe Edward Stark, Sr., and Joe Edward Stark, II, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Beauregard. 96 So.2d 569 and 396 So.2d 572.

Denied.


text:
    Merrie Elizabeth EAST et al. v. CHUCK MILLER REALTY, INC.
    No. 81-C-0965.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Merrie Elizabeth East, wife of and Clyde V. Bourgeois, Jr., applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 394 So.2d 767.

Writ denied.


text:
    Patsy LONG v. MARTIN TIMBER COMPANY, INC.
    No. 81-C-0967.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Martin Timber Company, Inc., applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Bienville. 395 So.2d 931.

Denied.


text:
    Eldridge Mack WILLIAMS v. CINCLARE CENTRAL FACTORY and Liberty Mutual Insurance Company.
    No. 81-C-0968.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Eldrige Mack Williams, applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of West Baton Rouge. 396 So.2d 301.

Denied.


text:
    Gilbert T. WHITE et al. v. Mr. & Mrs. Kenneth B. MATHIEU, Sr.
    No. 81-C-0976.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Gilbert T. White, et ah, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 394 So.2d 668.

Denied.

CALOGERO, BLANCHE and LEMMON JJ., would grant the writ.


text:
    Mr. & Mrs. Newton F. MARSH v. WINNEBAGO INDUSTRIES, INC. & Camper City of New Orleans, Inc.
    No. 81-C-0985.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Winnebago Industries, Inc. and Camper City of New Orleans, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 394 So.2d 670.

Denied.


text:
    COMMERCIAL BANK AND TRUST v. Angelo J. SCIORTINO.
    No. 81-C-0992.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Angelo J. Sciortino, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 394 So.2d 673.

Denied.


text:
    Denise HADLEY v. George W. HADLEY.
    No. 81-C-0997.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re the Minor, Eric Hadley, applying for certiorari, or writ of review, to the. Court of Appeal, Fourth Circuit. Parish of St. Bernard. 394 So.2d 769.

Denied.

BLANCHE, J., would grant the writ.


text:
    Billy and Jan TRICHEL v. Dr. Michael CAIRE; Dr. Albert Donald; Donald, Watson & Caire; Lynn Duffy; and Glenwood Hospital et al.
    No. 81-C-1000.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Dr. Michael Caire, Dr. Albert Donald; Donald, Watson and Caire; Lynn Duffy; and Glenwood Hospital, et al., applying for writs of certiorari or review or, alternatively, for a supervisory writ, to the Court of Appeal, Second Circuit. Parish of Oua-chita. 395 So.2d 952.

Denied.

BLANCHE and LEMMON, JJ., would grant the writ.


text:
    Kenneth Dale RAINS v. DIAMOND M COMPANY et al.
    No. 81-C-1011.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Diamond M Company, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Sabine. 396 So.2d 306.

Denied.

LEMMON, J., would grant in part and order a hearing on the motion for new trial.


text:
    SECRETARY OF the DEPARTMENT OF REVENUE AND TAXATION, State of Louisiana v. C. T. ALMAND DISTRIBUTOR, INC.
    No. 81-C-1012.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Shirley McNamara, Secretary of the Department of Revenue and Taxation, State of Louisiana, applying for writ of certiorari, or review, to the Court of Appeals, First Circuit. Parish of East Baton Rouge. 395 So.2d 391.

Writ denied.


text:
    HERLITZ CONSTRUCTION COMPANY, INC. v. HOTEL INVESTORS OF NEW IBERIA, INC. et al.
    No. 81-C-1047.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Hotel Investors of New Iberia, Inc., et al., applying for supervisory writ. Parish of Iberia. No. 45838.

Writ denied.

CALOGERO, BLANCHE and MARCUS, JJ., would grant the writ.


text:
    Jerry H. SCHWAB, Robert L. Morris, Laura Herring Morris, Merrick A. Dugal, Jr., Norman J. Claverie, Beulah Giroir King Claverie, and Tracy L. Rhodes v. Robert E. KELTON and Claudia Gordon Kelton.
    No. 14320.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Donald R. Mintz and Maureen O’Connor Sullivan of New Orleans for Robert E. Kel-ton and Claudia Gordon Kelton.
    Charles Hanemann of Houma for Jerry H. Schwab, Robert L. Morris, Laura Herring Morris, Merrick A. Dugal, Jr., Norman J. Claverie, Beulah Giroir King Claverie and Tracy L. Rhodes.
    Before LOTTINGER and EDWARDS, JJ.
   Writs refused. We find no abuse of discretion on the part of the trial judge in refusing a suspensive appeal. La.C.C.P. art. 3612.

In Board of Supervisors of Louisiana State University v. Lewark, 281 So.2d 706 (La.1973) the Supreme Court said:

“Undoubtedly all matters and things which induced the trial judge to grant or deny a suspension of the injunction pending appeal are relevant and should be considered by the reviewing court to determine whether there has been an abuse of the discretion he is authorized by statute to exercise in such matters. Clearly, then, in the absence of a showing to the contrary, all of the evidence considered by the trial judge in granting the injunction had some influence upon the exercise of that discretion.”

Though we do not have the entire record available to determine whether there has been an abuse of discretion, we do have copies of the trial memorandum filed by defendants-relators which contains a resume of the testimony of various witnesses. We assume, of course, that this testimony is that which was most favorable to defendants. Additionally we have the benefit of the trial judge’s written reasons for denying the suspensive appeal, a copy of which is attached. Therefore, we are of the opinion that this court has before it sufficient information to allow it to reach a decision without the necessity of ordering that the entire record be sent up.

After reviewing the above referred to memorandum and written reasons, as well as the other exhibits attached to the writ application, we are convinced that the trial judge did not abuse his discretion.

JERRY H. SCHWAB, ROBERT L. MORRIS, LAURA HERRING MORRIS, MERRICK A. DUGAL, JR, NORMAN J. CLAVERIE, BEULAH GIROIR KING CLAVERIE, AND TRACY L. RHODES VS. NO. 62,541 ROBERT E. KELTON AND CLAUDIA GORDON KELTON * 32ND JUDICIAL DISTRICT COURT * PARISH OF TERREBONNE * STATE OF LOUISIANA

REASONS FOR DENIAL OF SUSPENSIVE APPEAL

This Court has denied the Defendants’ petition for suspensive appeal, reserving, of course, the defendants’ right to appeal de-volutively.

Whether or not to grant a suspensive appeal from a preliminary injunction is a matter which addresses itself to the Court’s discretion. La.C.C.P. 3612 requires denial of a suspensive appeal unless there are good and valid reasons to justify the exercise of the Court’s discretion to the contrary. In the instant case, there are no circumstances which warrant the exercise of the discretionary powers of this Court.

The Defendant, Mr. Robert Kelton, is a certified Public Accountant as well as a knowledgeable and intelligent businessman. His actions in opening up and operating an accounting practice in the subject residential subdivision were done with the full knowledge that he was violating the restrictive covenants. It was duly noted at the hearing that Mr. and Mrs. Kelton owned other property in the same subdivision upon which they were rebuilding a beautiful home which had earlier been destroyed by fire. It was further noted that the Defendants’ purchase of the subject property was solely for the express purpose of conducting an accounting business. Prior to the purchase, Mr. Kelton approached some of the residents in the subdivision seeking their approval of his proposed intentions. Some of the residents voiced no objection. However, several other residents did voice an objection. In fact, two of the residents, both being practicing attorneys, strongly urged Mr. Kelton not to purchase the property if his sole intention was to operate his business there and further urged Mr. Kel-ton that if he persisted they would be forced to seek legal redress to preserve the residential quality of the subdivision.

Nevertheless, armed with the clear disapproval of many of his neighbors and with full knowledge of the covenant restricting the use of the property went forward with his plans. For reasons known only to Mr. Kelton, he intentionally sought a course of action designed to strike at the very heart of the term “residential subdivision”.

Upon the hearing for preliminary injunction, Mr. Kelton readily admitted that he did, in fact, violate the residential requirements of the restrictive covenants and then sought to justify his actions. The witnesses were numerous and the testimony extensive. After due consideration this Court was not convinced that the Defendants’ actions were justified and issued the preliminary injunction prayed for by the Plaintiffs.

The Defendants have argued that serious harm will be suffered by them if they are not granted a suspensive appeal and further, that failure to suspend the injunction would render their appeal meaningless. This Court is not persuaded by such argument.

The Defendants admittedly may be inconvenienced by having to cease operations in one location and begin in another. Although moving may cause some additional expense to Defendants, there is absolutely no evidence that they would suffer a loss of business or clients. Further, the Defendants are not being divested of their ownership in the subject lot and improvements. The property consisted of a residential home. Should they be successful in their devolutive appeal and have this Court’s judgment reversed need only begin their operation on the premises as before.

This Court cannot be sympathetic to any financial loss incurred by the Defendants when they knowingly and intentionally sought to circumvent the obligations they willingly assumed by purchasing the property burdened with restrictive covenants.

The Plaintiffs in this action are entitled to consideration and must not be ignored. Articles 775 et seq. of the Civil Code expressly establish the right of land owners to enforce restrictive covenants by injunction. Normally, injunctions issue only upon a showing of irreparable injury, La.CCP 3601. Evidently, realizing the right of landowners to peaceful, uninterrupted enjoyment of their home, the Legislature has eliminated the usual requirement of “irreparable injury” as a prerequisite to an injunction to protect restrictive covenants. La.C.C. 779.

Balancing the interests of the Plaintiffs in enforcement of the restrictions and peaceful enjoyment of their homes, against the interest of Defendants in continuing to violate the restrictions by operating their accounting practice on the subject property, this Court is not constrained to exercise its discretion by granting a suspension of the preliminary injunction pending appeal.

For the above and foregoing reasons, the Court has seen fit to deny Defendants’ request for a suspensive appeal.

HOUMA, LOUISIANA, this 21st day of January, 1981.

/S/ PAUL R. WIMBISH

PAUL R. WIMBISH

DISTRICT JUDGE - DIVISION “E”


author: BAILES, Judge.

text:
    Richard W. GALLARDO v. DEPARTMENT OF FIRE.
    No. 11864.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1981.

      Barker, Boudreaux, Lamy, Gardner & Foley, Louis L. Robein, Jr., New Orleans, for plaintiff-appellee.
    Salvador Anzelmo, City Atty., Michael A. Starks, Asst. City Atty., New Orleans, for defendant-appellant.
    Before SAMUEL, GARRISON and BAILES, JJ.
   BAILES, Judge.

This appeal is by the City of New Orleans, through the Department of Fire, of the adverse judgment of the Civil Service Commission of the City. The judgment appealed reversed the determination of the appointing authority which found the appel-lee, Richard Gallardo, had violated Section 13.04 of the rules and Regulations of the New Orleans Fire Department and suspended him for thirty days.

Section 13:04 provides:

“OBEY LAWFUL ORDERS: Members shall obey all lawful orders and directions given by Superior Officers. Such obedience shall be prompt and willing.”

The jurisdiction of this court to hear this appeal is based on Article X, Section 12 of the Louisiana Constitution (1974), which in part states:

“Section 12. * * * The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.”

In Armant v. Housing Authority of New Orleans, New Orleans, Louisiana, 351 So.2d 1262 (La.App. 1st Cir. 1977) the court stated:

“(1) Civil Service Commission decisions are reviewable on appeal to this court on both law and fact. Art. 10, § 12, La. Const. (1974). The scope of review is the same as that accorded appeals from the Trial Courts. Art. 5, § 12, La.Const. (1974). * * *”

We hold that the fact findings of the Civil Service Commission are to be accorded the same efficacy as a finding of fact made by a trial court. The often quoted jurisprudential directive of appellate review found in Canter v. Koehring Company, 283 So.2d 716 (La.1973), page 724, appears appropriate here:

“(8, 9) Where there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluation and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Although not set out in its brief as specifications of error, appellant’s contention is that the Civil Service Commission committed two errors which require a reversal of its decision. Specifically it contends: (1) The Department of Fire proved that appel-lee, Richard Gallardo, was on duty when the fire alarm came in; and (2) that appellee disobeyed a direct order. Both of these contentions embody findings of fact which the Commission resolved adverse to the appointing authority. In order to effect a reversal both fact findings must be turned around.

In response to the appeal from the appointing authority’s suspension of appellee, the Civil Service Commission appointed an examiner who conducted an evidentiary hearing on January 7, 1980, at which time the record herein was made. Testimony of witnesses for both parties was recorded, transcribed and considered by the Commission. The appointed authority presented testimony of Captain Alphonse J. Arnone, Captain Ronald P. Nunez and Superintendent of Fire, William J. McCrossen. The appellee presented his own testimony and that of Captain John Foley.

The crux of the issue herein appears to be the resolution of the question of whether Captain Arnone gave the appellee an order, and if so, was the order disobeyed. However, the threshold question is, was the ap-pellee on duty at the time? It appears that Captain Arnone said to the appellee when the roll was made, “Let’s go, Richard.” It appears equally certain that acting operator Ward Breaux had not been relieved by the appellee. Although acting operator Breaux did not testify at the hearing conducted by the Commission examiner, he did testify before the Board of Internal Affairs (the administrative hearing) that he (Breaux) considered himself still on duty.

Apparently the Commission concluded, as do we, that there was a misunderstanding on the part of Captain Arnone as to whether appellee was on duty at the time the roll was made at 6:35 a. m. on the date in question. It is clearly shown by the record that acting operator Breaux, without question or hesitation, responded to the roll. Doubtlessly, Captain Arnone, in good faith, thought the appellee was on duty when he said “Let’s go, Richard”, and he should have realized that appellee, who was not a member of his shift, had not relieved acting operator Breaux when the latter responded to the roll.

There is a clear lack of unanimity in the procedure of one fire fighter relieving another fire fighter. For instance, one opinion is that the relief is effected upon the relieving fire fighter crossing the threshold of the firehouse; another is that one contacts the member to be relieved and especially in the case of an operator, there is the verbal contact between them at which time the relieved operator advises the relieving operator of what activity took place during the preceding 24 hours, whether the pump was operated, what equipment, including ladders, was used, and whether the air masks were used. Then there is found this provision in the Rules and Regulations of the Fire Department, Section 10:04:

“REMAINING ON DUTY UNTIL PROPERLY RELIEVED:
Members shall remain at their place of assignment until properly relieved by another member and officially dismissed by a superior officer. Members shall take leave from their duties only when authorized by their company commander.”

There is a credibility call on the testimony of Captain Arnone who stated under oath that he ordered the appellee on three separate commands to make the roll. Another witness, Captain Foley, testified that Captain Arnone subsequently made the statement in his presence that he (Captain Arnone) believed that had he given Operator Richard Gallardo a direct order he (Richard Gallardo) would have made the roll.

The pertinent part of the Commission’s ruling is here quoted:

“The testimony reveals that appellant arrived at the Fire Station at approximately 6:15 a. m. His official tour of duty commences at 7:00 a. m. At approximately 6:35 a. m. an alarm came in. Appellant did not respond to the call because he did not feel he was on duty yet. “The Appointing Authority contends that appellant was on duty at the time of the alarm and refused to obey a lawful order of his superior. With respect to the question of ‘being on duty’ there was testimony to the effect that when a Fire Fighter or Operator enters the station he is considered as having relieved the person from the previous platoon. There was also testimony that ‘relieving’ procedures are based upon mutual agreement. Finally, the Rules and Regulations of the New Orleans Fire Department provide that:
“REMAINING ON DUTY UNTIL PROPERLY RELIEVED:
Members shall remain at their place of assignment until properly relieved by another member and officially dismissed by a superior officer. Members shall take leave from their duties only when authorized by their company commander.
“The Commission feels that the evidence did not sufficiently establish that appellant’s predecessor had been relieved and that appellant was on duty.
“With regard to the question of an order, the Appointing Authority contends that Captain A. J. Arnone ordered Gallardo to respond to the call and that he refused to obey this lawful order of his superior. However, the testimony at the hearing does not support this allegation. Captain Arnone first testified that he ordered appellant to answer the call, but later when questioned, testified to the effect that he may not have given appellant a direct order. In view of this statement we feel that the Appointing Authority failed to establish that appellant refused to obey an order. Consequently appellant should not have been disciplined.
“It must be pointed out that we are not talking here about a question of life or death in the sense that if appellant did not respond there would be no one to handle the call. We are merely talking about which of two men, who are drinking coffee, is responsible to answer. For these reasons the appeal is upheld.”

There is a conflict in the testimony of the witnesses who appeared for the appointing authority and those of the appel-lee on both issues of this appeal. Giving effect to the mandate of the Supreme Court in Canter v. Koehring Company, supra, we are not at liberty to make a finding of fact the result of which would necessitate a different result unless it appears the trier of fact committed manifest error. We find the factual conclusions of the Commission are neither unreasonable evaluations of credibility nor unreasonable inferences of fact. There appear credible facts in the record to support the judgment of the Commission.

For these reasons the judgment appealed is affirmed.

AFFIRMED.


author: GARRISON, Judge.

text:
    Adrian J. MARTINEZ, Individually & On Behalf of His Minor Son Kelley P. Martinez v. Dale LANDRY, His Minor Daughter, Tamra A. Landry, and Their Insurer Liberty Mutual Insurance Co.
    No. 11966.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1981.

      Joseph S. Russo, Jefferson, for plaintiff-appellant.
    Bruce J. Borrello, Borrello & Huber, Me-tairie, for defendants-appellees.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court adopting the jury’s verdict by dismissing plaintiffs case upon a finding of no negligence on the part of the operator of a vehicle involved in a collision with plaintiff’s minor son. From that judgment, which we affirm, plaintiff appeals.

The suit is the result of an incident occurring on Sunday, April 15, 1979. Defendant’s 17 year old daughter, Tamra Landry, was driving the family station wagon when she was involved in an accident with plaintiff’s 9 year old son, Kelley Martinez, who was riding a bicycle.

After trial on the merits, the jury concluded that Tamra Landry was not negligent. We agree. Upon an examination of all of the evidence presented, our review indicates that the boy riding the bike darted out from between two parked cars into the path of the oncoming car. The vehicle was traveling 12 to 15 miles per hour and stopped immediately prior to or contemporaneous with the impact. There were no skid marks from the car. The bike did not “flip” in the air but rather fell over and slid. Russel C. Boe, Jr., witness to the accident, testified that the handlebars of the bike appeared “wobbly” and that it appeared to him that the boy “lost control” of the bike.

On appeal, it is the duty of this court to determine whether the trier of fact was manifestly erroneous. Arceneaux v. Dominque, 365 So.2d 1330 (1978). In light of the evidence and testimony presented, we cannot conclude that the trier of fact was manifestly erroneous.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


author: REDMANN, Judge.

text:
    Wayne DUCOTE v. A. Charles BORRELLO.
    No. 12272.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1981.
    Writ Denied July 2, 1981.
    Michael S. Fawer, E. Sue Bernie, Fawer & Greenbaum, New Orleans, for plaintiff-appellee.
    Nat G. Kiefer, Emile W. Schneider, New Orleans, for defendant-appellant.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   REDMANN, Judge.

Reappointed on December 11,1979 by the then Governor to the Orleans Levee District Board of Commissioners, La. R.S. 38:1233, defendant A. Charles Borrello privately took his oath of office within 30 days of receipt of his commission as required by La. R.S. 42:141 and mailed it to the Secretary of State, but the Secretary of State is unable to find the oath and has no record of having received it.

Defendant now appeals from a judgment declaring his office vacant and upholding an appointment by the present Governor to fill the vacancy. We reverse.

Paramount in our consideration is that both elected and appointed officials are governed by the same laws in respect to qualifying for their offices. Although the office in question here is an appointed one, our decision would equally apply to an elected one. We reject any notion that courts should defeat the will of the voters and deprive an elected public official of his office on any basis other than one expressly provided by law. Because that must be the test for elected officials, it must also be the test for appointed officials. We find no law that expressly provides for the loss of one’s office under defendant’s circumstances.

Plaintiff cites La. R.S. 42:141 and 162, but it is only § 141 that expressly vacates one’s office for noncompliance with its provisions, and defendant has complied with § 141. That law reads:

A. Each public officer, within thirty days after receipt of his commission, shall take the oath of office prescribed by law, and give bond, where required, and file the same in the proper office in the manner required by law.
B. Subject to the time limitations set forth in Subsection A hereof, a public officer may take his oath of office at any time after he receives his commission. An oath taken prior to the date shown on the commission shall be deemed to have been taken on and shall be effective on and after the date on which the term of office for which the oath is taken commences. In cases where the office is one for which no date for term of office is set, an oath taken prior to the date on the commission shall be deemed to have been taken oh and shall be effective on and after the date on the commission.
C.Failure to comply with the requirements of this Section shall create a vacancy in the office, and the vacancy shall be filled in accordance with law as in other cases of vacancy.

The warning of § 141 is that a public officer must “take” the oath — something that can be done orally, as is done by every witness in a court of law. § 141 adds that the officer shall “give bond, where required, and file the same in the manner required by law.” (Emphasis added.) § 141 thus requires filing the bond (“within thirty days after receipt of his commission”) but does not expressly require a filing of the oath.

One must here compare § 162:

The oath of all officers of the state may be administered by the governor, any judge, justice of the peace, or clerk, and shall be subscribed by the party taking it, and certified in his commission by the person administering it. This oath or affirmation shall be deposited in the office of the Secretary of State, and by him recorded in a book kept for that purpose. The oath or affirmation of all parish officers shall also be recorded in the clerk’s office of the parish where the same may have been administered, to be recorded by the clerk in a book kept for that purpose.
The oath or affirmation shall be deposited for recordation within one month after the same shall have been administered.

It is thus § 162 that requires that a written oath be “deposited” (rather than “filed”), but § 162 does not say that the public officer taking the oath must deposit it, and the language is at least equally susceptible to the interpretation that the person administering the oath must deposit it (just as the oath must be “certified in his commission by the person administering it” rather than by the person taking the oath). Moreover, § 162 calls for deposit not within 30 days of the commission but “within one month after the [oath] shall have been administered.” Yet another difference pertinent to § 141’s “file the same in the proper office” is that the oath and bond go to different offices: § 162 sends the oath to the Secretary of State while §§ 186 and 189 send the bond to the parish clerk of court and a “copy” to the State Treasurer.

Accordingly, our conclusion from the wording of § 141 is reinforced by § 162: the only oath requirement in § 141 is that the oath be taken within 30 days of receipt of the commission. Thereafter it is § 162 that requires its deposit within a month of the taking of the oath. Thus, if the oath were taken on the 30th day after receipt of the commission and deposited a 31-day month after taking the oath, the deposit could occur timely although 61 days after receipt of the commission. Most important, and dispositive of this case, is that failure to deposit the oath timely within the delay allowed by § 162 is a noncompliance with § 162 but not with § 141: and it is expressly and only a violation of § 141 that results in a vacancy in the office.

We need not cite all the court decisions dealing with § 141 or its predecessors to assert that none of them, as far as we can find, involves a simple failure of the oath to be deposited with or recorded by the Secretary of State.

The judgment appealed from is reversed, effective immediately and notwithstanding plaintiff’s entitlement to apply for rehearing or writs, and plaintiff’s action is dismissed at his cost.

      . A curious coincidence is that, at first, the Secretary of State was also unable to find defendant’s earlier oath for his first term of office. But a record of receiving that oath did exist.

      . We do not decide whether the testimony of mailing suffices to show the depositing required by § 162.


author: BARRY, Judge. SARTAIN, Judge,

text:
    HARRY’S HARDWARE, INC. v. James C. PARSONS, Superintendent of Police et al.
    No. 11696.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 1981.
    Writ Granted July 2, 1981.

      Midió & Lehmann, Rene Lehmann, New Orleans, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Robert J. Caluda, Staff Atty., New Orleans, Harry F. Connick, Dist. Atty., John H. Craft and James Kevin McNary, Asst. Dist. Attys., Salvador Anzelmo, City Atty., Galen S. Brown, Deputy City Atty., New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN, GARRISON, BARRY and SARTAIN, JJ.
   BARRY, Judge.

Plaintiff, Harry’s Hardware, Inc., appeals from a judgment dismissing its application for a Preliminary Injunction prohibiting the New Orleans Superintendent of Police and certain elected officials from enforcing La. R.S. 51:194, commonly referred to as the “Sunday closing law”. Plaintiff alleges this law is unconstitutional because it invidiously discriminates against its hardware stores by permitting grocery and drugstores to remain open on Sunday selling merchandise similar and identical in nature to that sold by plaintiff.

Sunday legislation originated in A.D. 321 when Constantine the Great issued an edict commanding all Roman judges and inhabitants of cities to rest on the venerable day of the sun. Sunday statutes were passed in England and 29 Charles II c 7 page 412 (1660-1685) has served as the basis for similar legislation in many of our states. Statutes regulating the observance of Sunday were enacted in our country during the Colonial period and included the Virginia Colony at Jamestown in 1617. See 83 C.J.S. Sunday § 3a, p. 800 (1953). By 1800, statutes no longer emphasized church attendance, but instead sought to prohibit other activities which removed the temptation to miss religious services.

The United States Supreme Court in People of State of Illinois ex rel., McCollum v. Board of Education, 1948, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 and Everson v. Board of Education, 1946, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, holding that the fourteenth amendment protected the individual against any state statute which infringed upon his individual beliefs or convictions, made it inevitable that Sunday legislation would be subject to constitutional attack. The judicial history of the “blue” laws, however, shows they have not generally been interpreted as laws establishing or infringing upon religion, but have been viewed as welfare legislation which provides for a day of rest and relaxation. This premise, in today’s society, has limited merit.

Louisiana’s Sunday law cannot be upheld upon any religious concept although it is founded upon the Biblical admonition to “remember the Sabbath to keep it holy,” because of our constitutional provision requiring separation of church and state. Amendment 1, Federal Constitution. The constitutionality of our law must be determined upon a consideration of whether it was justified as a proper exercise of the state’s police power. Laws similar to ours have been upheld not because of any governmental right to promote religion by legislative enactment, but rather as an exercise of the police power in the protection of all citizens from the physical, as well as moral, degradation which might result from continuous labor.

When the injunction was filed plaintiff obtained a temporary restraining order pending a hearing. Defendants filed an exception of “Lack of Jurisdiction over the Subject Matter” urging that a civil court lacks jurisdiction to enjoin enforcement of a criminal statute. By agreement the preliminary and final injunction were heard together and the matter submitted on affidavits.

The trial judge referred the exception of lack of jurisdiction to the merits and thereafter dismissed plaintiff’s petition for injunction, in effect upholding the constitutionality of the Sunday closing law, citing State of Louisiana v. Scallon, 374 So.2d 1232 (La.1979).

In his Reasons for Judgment the trial judge properly held that for a civil court to prevent the enforcement of a criminal statute by injunction, a tripartite test must be met consisting of the following:

(1) The invasion of a property right must be clearly shown;
(2) There must be threat of irreparable injury,
(3) The unconstitutionality or illegality of the statute must be manifest. National Food Stores of Louisiana, Inc. v. Cefalu, 280 So.2d 903 (La.1973); West v. Winnsboro, 211 So.2d 665 (La.1968).

The trial judge opined that plaintiff may be able to establish the first two conditions, but held that plaintiff failed to prove the third condition that the “Sunday closing law” was manifestly unconstitutional.

The right of our legislature to pass a “Sunday closing law” is not open to question. State Legislatures within their general police powers have the right to enact legislation setting aside a day of rest and regulating and restricting sales on that day to protect all persons from the physical and moral debasement which comes from uninterrupted labor. McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

The first issue we address is the jurisdiction of the civil district court to grant an injunction to prevent enforcement of a criminal statute.

Injunction is an equitable remedy. LSA-C.C.P. Art. 3601. Louisiana district courts have jurisdiction of all civil matters, La.Const. Art. V § 16, and are courts of general trial jurisdiction which administer both law and equity. LSA-C.C. Art. 21. When an equitable remedy is sought from a district court in a civil action, the true question is not one of jurisdiction but whether or not the equitable remedy is warranted under the circumstances. West v. Winnsboro, supra, p. 669. We are therefore satisfied that the District Court had jurisdiction to hear the petition.

Our next determination is whether an injunction restraining enforcement of LSA-R.S. 51:194 should be issued on the grounds that plaintiff has shown invasion of a property right, irreparable injury, and the manifest unconstitutionality of the statute. If the tripartite test is met then injunctive relief is the proper remedy.

INVASION OF PROPERTY RIGHT

In the equitable protection of property rights, the courts have broadly defined the term “property right”. It embraces any civil right of a pecuniary nature. Thus, the right to conduct a business is clearly a property right which equity will protect. The protection extends to any substantial interference produced by unconstitutional legislation. National Food Stores of Louisiana, Inc. v. Cefalu, supra; West v. Winnsboro, supra; Sears, Roebuck and Company v. City of New Orleans, 238 La. 936, 117 So.2d 64 (La.1960); Banjavich v. Louisiana Licens. Bd. for Marine Divers, 237 La. 467, 111 So.2d 505 (1959); Dumestre v. Police Jury, Parish of Jefferson, 185 La. 492, 197 So. 209 (1940); Patout Bros. v. Mayor, Etc. of City of New Iberia, 138 La. 697, 70 So. 616 (1916); McClintock on Equity § 151, p. 402 (2d ed. 1948); de Funiak, Handbook of Modern Equity § 41, pp. 75-77, (2d ed. 1956); 30 C.J.S. Equity § 58 pp. 897-899; 27 Am.Jur.2d, Equity, § 66, pp. 589-590, 28 Am.Jur., Injunctions, § 70, p. 566.

Plaintiff operates hardware stores and is not exempted from Sunday closing under La.R.S. 51:192 or 194. Hardware stores fall under the generl provisions of Section 191 and are prohibited from selling any merchandise on Sunday. Therefore, it is clear that plaintiff’s right, a substantial property right, is invaded.

IRREPARABLE INJURY

Plaintiff’s name and reputation are in jeopardy under criminal procedures and plaintiff is therefore forced to choose between irretrievable economic loss or being subjected to criminal prosecution.

When unconstitutional ordinances or laws interfere with the pursuit of a lawful occupation, injunctive relief has been granted. See Sears, Roebuck and Company v. City of New Orleans, supra. By “adequate remedy at law” is meant one which is as speedy, efficient, and complete as the remedy in equity. See Banjavich v. Louisiana Licens. Bd. for Marine Divers, supra; de Funiak, Handbook of Modern Equity § 5, pp. 9-10 (2d ed. 1956); McClintock on Equity, § 43, p. 103 (2d ed. 1948); 28 Am.Jur., Injunctions § 39, pp. 534-535.

During the proceedings in the lower court plaintiff demonstrated that closing his business as required by statute causes him irretrievable loss. Plaintiff’s affidavits supported its contention that the identical merchandise carried by its hardware stores is being sold on Sundays by drugstores and grocery stores.

Plaintiff’s Exhibit A, which was annexed to an affidavit of its Vice-President, sets forth purchases made from plaintiff’s competitors. The analysis shows that of 83 different items which were purchased at grocery and drugstores in the area, 82 items were also carried by plaintiff’s hardware stores. These 82 items were listed for illustration only since plaintiff’s total stock consists of 10,000 different items, many of which are also offered by grocery and drugstores in the New Orleans Area. Plaintiff’s affidavit further shows that sales at its General Meyer St. store on Sunday, March 16, 1980 (during the temporary restraining order) amounted to $3,800.00. This sum represents 138% of plaintiff’s average daily sales. A graphic illustration of irreparable injury was introduction of a Sunday newspaper advertisement by Walgreen’s drugstore in which Walgreen’s is referred to as the “Shopper’s Center”.

Therefore we conclude that irreparable injury was shown.

MANIFEST UNCONSTITUTIONALITY

Plaintiff does not question the legislative prerogative to enact a “Sunday closing law”; its position is that such a statute cannot create arbitrary and unreasonable business classifications which have no bearing upon public health and welfare and which creates and fosters unfair competition.

The “Sunday closing law” is comprised of four sections. Section 191 forbids “all stores, shops, saloons, and all places of public business, licensed under the law of Louisiana or under any parochial or municipal law and all plantation stores from being open and doing business on Sundays.” Section 192 (as amended and re-enacted by Act 483 of 1979) exempts from Section 191 the following:

News dealers and newspaper offices
Printing offices
Book stores
Watering places and public parks
Places of resort and recreation '
Livery stables
Railroads
Hotels and boarding houses
Undertaker shops
Art galleries insofar as sales of original art and prints constitute a substantial portion of their operation
Drugstores and apothecary shops
Keepers of soda fountains
Public and Private Markets
Dairies
Bakeries
Places of amusement
Steamboats and other vessels
Warehouses for receiving and forwarding freight
Telegraph offices
Theatres
Restaurants
lee dealers

Section 193 prohibits the operation of barber shops on Sunday. Section 194, Subsection A, provides that the following sales and services shall not be conducted on Sunday:

“.any clothing or wearing apparel; lumber or building supply materials; furniture; home or business or office furnishings; any household, office or business appliances; new or used automobiles and trucks or parts for and servicing of such motor vehicles in all places of business wherein such motor vehicles are sold. In the case of an emergency, parts and servicing may be sold.”

Subsection E of Section 194 exempts sales:

(1) for charitable purposes; or
(2) of items for funeral or burial purposes; of items sold as a part of or in conjunction with the sale of real property or mobile homes; or of drugs, medicines, medical or surgical supplies and appliances.
(3)of clothing or wearing apparel, new and used furniture, new and used home or business or office furnishings, or any new or used household, office or business appliances in the Vieux Carre section of the city of New Orleans being that section of the city bounded by Iberville Street, North Rampart Street, Esplanade Avenue and the Mississippi River. Added by Acts 1972, No. 72 § 1. Acts 1972, No. 547 § 1. Amended by Acts 1977, No. 190 § 1.

Drugstores are listed in Section 192 and fall within the exempted class. Grocery stores are exempted under “public or private market” as decided in State v. Penniman, 68 So.2d 770, 224 La. 95 (1953). In Penniman, the defense urged (1) that since the legislature failed to define the term “market”, the statute was too vague, and (2) that it is unconstitutional because neither the classification or the exemptions therein are founded upon any reasonable distinction and had no logical relation to the statute’s objective. The court held that in light of commonly accepted meanings of the words “public and private markets” it could not say defendant was not within the meaning and contemplation of this statute, otherwise the act would be unconstitutional. Having reached this conclusion it was unnecessary for the court to discuss the constitutionality of the statute.

Before Penniman, supra, State v. Fernandez, 39 La.Ann. 538, 2 So. 233 (1887) was the controlling jurisprudence. There it was asserted that Section 3 of Act 18 of 1886 did not apply to public and private markets, and, as the grocery establishment in question was in a public market, the opening of a grocery stand in such a place of business on Sunday was not prohibited. The court held grocery stores in public markets were not exempt, because it would not suppose that the legislature designed a statute which odiously and unconstitutionally discriminated between citizens belonging to the “same class”. The court in Penniman, however, decided the Fernandez case was factually distinguishable.

The question of whether a hardware store could legally open on Sunday as a “public or private market” has never been decided by the court, State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (La.1971); State v. Deutch, 245 La. 819, 161 So.2d 730 (La.1964). See also Pick’s Auto Parts No. 2, Inc. v. Hodge’s Auto Parts, La.App., 334 So.2d 547, 548 (4th Cir. 1976). This point is not urged by plaintiff and we find it unnecessary to address this issue.

In summary, plaintiff urges that the “Sunday closing law” violates their right to equal protection of the law on the grounds that (1) the exceptions and exemptions of Sections 192 and 194 create classification of proscribed activities and goods which is arbitrary and unconstitutional; (2) that the “Sunday closing law” is so riddled with exceptions that the present state of the law invidiously discriminates between persons similarly situated, selling the same goods; (3) that the classifications established by the legislature rests on grounds wholly irrelevant to the achievement of the state’s objective, namely, the promotion of health, recreation and welfare and creates unfair competition among persons, firms or business establishments similarly situated; (4) that since no public purpose is served it is an abuse of legislative authority.

The Constitution of the United States, while forbidding the state from engaging in deliberate discrimination where that discrimination is invidious, does not require that a statutory discrimination be set aside if any state of facts reasonably may be conceived to support it. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. McGowan v. State of Maryland, supra.

The legislative body has a wide latitude in classifying commodities and businesses in this type of legislation. But such statutes cannot invidiously discriminate between those in the same business who properly belong in the same class. West v. Winnsboro, supra; Sears, Roebuck and Company v. City of New Orleans, supra; Banjavich v. Louisiana Licens. Bd. for Marine Divers, supra; City of Shreveport v. Schultz, 154 La. 899, 98 So. 411 (1923); State v. Barba, 132 La. 768, 61 So. 784, 45 L.R.A., N.S., 546 (1913); City of Shreveport v. Levy, 26 La.Ann. 671, 21 Am.Rep. 553 (1874); Terry Carpenter, Inc. v. Wood, 177 Neb. 515, 129 N.W.2d 475 (1964); Rhyne, Municipal Law § 26-13, pp. 542-543 (1957); McQuillin, Municipal Corporations § 18.18, pp. 441-443 (3d ed. 1949); 16 Am.Jur.2d, Constitutional Law, § 503, pp. 881-882.

Accordingly, if the statute (1) unreasonably discriminates between those engaged in the same business and/or (2) contains classifications resting on grounds wholly irrelevant to the achievement of the State’s objective, it is constitutionally infirm.

Drugstores in 1981 are no longer the apothecary shops of the 19th century, and modern supermarkets sell more than milk, bread, and necessary staples. These stores have become home and garden centers, department stores, bakeries, delicatessens, among others.

A review of plaintiff’s exhibits shows that many items sold by plaintiff’s hardware stores are also offered by grocery and drugstores. Very few of these items fall into the prohibited categories of La.R.S. 51:194, i. e., lumber, building supply materials, furniture, home, business or office furnishings, or household, office or business appliances. Consequently, drugstores and grocery stores are permitted to sell merchandise on Sunday, under Sec. 192, without violating the prohibitions of Section 194. Plaintiff’s affidavits show that in the three to five mile trading area of each of plaintiff’s locations there are 16 major drug and grocery stores which carry the same and/or similar merchandise as plaintiff. In one instance, a competitor, Eckerd Drugs, is directly across the street and open on Sundays.

The evidence convinces us that plaintiff is in a business similarly situated to grocery and drugstores.

To permit drugstores and grocery stores to be open on Sunday and sell their non-drug and non-food stock while hardware stores carrying the same and/or similar merchandise are required to be closed constitutes invidious discrimination against hardware stores and is patently discriminatory.

The second requisite, that the classification established by the State must rest on ground relevant to achievement of the State’s purpose, is also absent. The courts have long recognized the promotion of health, recreation and welfare to be a valid governmental purpose of the Sunday closing law. McGowan v. State of Maryland, supra. The legitimacy of this objective is not questioned by this court. The question we must resolve is whether classifications in the statute rationally further the State’s ordained purpose.

The original concept is that closing of all business houses on Sunday, except in cases of emergency, bears a reasonable relationship to the general welfare because protection is afforded to all citizens from the possible evils from uninterrupted labor. It doesn’t follow that laws containing the exemption of so many businesses, such as our statutes under consideration, can be said to bear such relationship to the public health, safety, morals or general welfare as to declare them to be valid general laws simply because they operate equally upon all within a certain class or classes. It is necessary that there will be a valid and substantial reason to make such laws operate only upon certain classes rather than generally upon all.

It is not suggested that parties who work in hardware stores need protection from uninterrupted labor more than do citizens who are engaged in any of the exempt businesses or vocations. We can think of no reason why health, safety, morals or general welfare of our people would be better safeguarded by requiring hardware stores to close on Sunday than such rights or guaranties would be safeguarded were such persons allowed to do business on the Sabbath along with proprietors of tourist attractions in the French Quarter. Such distinctions are nebulous, arbitrary, and made without a reasonable basis for holding them as a valid exercise of the police power. Indeed, each of these distinctions fits into the category of a distinction without a difference. It is necessary that there be a valid and substantial reason to make such laws operate only upon certain classes rather than generally upon all.

Our statute specifically states the purpose for which it was enacted in Subsection C of Section 194:

“The purpose of this Section being to promote the health, recreation and welfare of the people of this state and to prevent unfair competition among persons, firms, or business establishments .. .. ” (Emphasis added)

We note that Louisiana cases on this point, particularly the recent case of State v. Scallon, supra, relied upon by the district court, have either failed to discuss or given ostensible treatment to the fact that Subsection C of Section 194 states a two-fold purpose.

In the instant case, it is unquestioned that the distinction between hardware stores on one hand and drug and grocery stores on the other, are classifications which create unfair competition rather than prevent it. The poor record of uniform enforcement throughout the State will not improve. Experience has taught mankind that the retention of unenforceable laws which are universally violated, breeds contempt for the law in general.

We conclude that the classifications established by the legislature rest on grounds wholly irrelevant to the achievement of the State’s objective to promote the health, recreation and welfare of its people.

The distinction between hardware stores and grocery/drugstores is arbitrary and without any relation to public health, recreation and welfare. If the purpose of the statute is prevention of unfair competition, then that purpose has failed in reality.

We hold that La.R.S. 51:191-194, the Sunday closing law, is manifestly unconstitutional and that a permanent injunction should issue as prayed for. For the foregoing reasons the judgment of the District Court is reversed and set aside and this matter is remanded for issuance of the permanent injunction in accordance with the views hereinabove expressed. All costs are to be paid by appellees.

REVERSED, RENDERED AND REMANDED.

SARTAIN, Judge,

dissenting.

I respectfully dissent for the reasons assigned by the trial judge.

      . An intervention was filed on behalf of the plaintiff but intervenor has not pursued its position.


text:
    Claibert J. MORALES, Sr. v. MAGNOLIA CHEMICALS & SOLVENTS, INC., et al.
    No. 11536.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 1981.
    Writ Denied July 2, 1981.
    Richard McGinity, New Orleans, for plaintiff-appellee.
    Moliere, Flanagan & Arceneaux, James S. Arceneaux, Metairie, Deutsch, Kerrigan & Stiles, Patricia M. Joyce, New Orleans, for intervenor-appellee Transportation Insurance Co.
    Before STOULIG, GARRISON and CHE-HARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granted in favor of plaintiff, awarding to him damages in the amount of $164,161.00, including expert fees and medical expenses, for injuries sustained by him on June 14, 1977. Plaintiff, who was employed as a truck driver by Browning-Ferris Industries, Chemicals & Solvents, Inc., was severely burned by sulfuric acid which was being dispensed into his employer’s truck by the seller, Magnolia Chemical & Solvents, Inc., hereinafter “Magnolia”, under the direction and supervision of Adolph Hilken, the plant manager for Magnolia. From that judgment, which we affirm, Magnolia appeals.

On appeal, Magnolia contends that the trial judge erred in finding it negligent, in failing to find that the plaintiff was con-tributorily negligent or that he had assumed the risk, and in awarding expert fees. Appellant also argues that the trial court clearly abused its discretion in the amount of damages awarded.

The first twenty-five pages of appellant’s brief deal with the issue of liability and defenses thereto. But for three and one-half pages, the bulk of the liability arguments consists of restatements of testimony contained within the record and reargument of the facts of the case. The function of the appellate court is different from that of the trial court in that the trial court is the finder of fact. The appellate court is limited to a determination as to whether the trial judge was manifestly erroneous in his factual determinations. Canter v. Koehring, 283 So.2d 716 (La.1973), Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In the instant appeal the trial court has provided the following written reasons for judgment:

“This is a suit for damages as a result of injuries sustained by the plaintiff when splashed with sulfuric acid. The merits were tried before the Court and consumed approximately three days of testimony. After considering the evidence and the law in this ease, the Court, for the reasons contained in these findings, holds that the plaintiff is entitled to a judgment against Magnolia Chemicals and Solvents, Inc., Commercial Union Insurance Company and Adolph Hilken, jointly, severally and in solido, in the sum of $164,161.00, together with interest, costs, expert fees and medical expenses.
This Court finds that the plaintiff, Claibert J. Morales, Sr., was a “business invitee” of the defendant Magnolia Chemicals and Solvents, Inc. On the day of this injury, the plaintiff was at the defendant’s plant to pick up an unspecified chemical. “An ‘invitee’ is the person who goes on the premises with the express or implied invitation of the occupant on the business of the latter or for their mutual advantage, and to him the duty owed is that of reasonable and ordinary care, which includes the proper discovery of reasonably discoverable conditions on the premises which may be unreasonably dangerous and correction thereof or warning to the invitee of the danger.” Taylor v. National Indemnity Company, 215 So.2d 203 [(La.App.1968)].
Where one is engaged in the distribution of an inherently dangerous substance, he is charged with the duty of exercising the utmost degree of care.
This Court finds that defendants, Magnolia Chemicals and Solvents, Inc. and Adolph H. Hilken were negligent in that they breached the duty of care owed to the plaintiff by not warning the plaintiff, Mr. Morales, of the dangers inherent in dealing with a chemical of the nature of sulfuric acid. The defendants failed to use a safe method of loading the acid as well as failing to use the proper protective and safety gear needed.
The Court therefore concludes that the cause in fact of the plaintiff’s injury was the failure of Magnolia and Hilken to exercise reasonable care in the dispensing of a dangerous chemical and that the defendant’s conduct was a breach of the duty imposed to protect the plaintiff under the circumstances.
The defendants failed to prove and the Court finds no contributory negligence on the part of the plaintiff.
The injuries sustained by the plaintiff were both serious and uncontested. The evidence revealed that the plaintiff suffered sulfuric acid burns over one fifth (Vs) of his entire body.
Considering the nature and permanency of the injuries as related herein as well as awards made in similar type cases, the Court assesses damages for past and future pain and suffering and for permanent scarring and disfigurement, in the full amount of one hundred sixty-four thousand one hundred sixty-one and no/100 dollars ($164,161.00).
The expert fees are set at five thousand eight hundred thirty-eight and 64/100 ($5,838.64).
The Court recognizes the claim of the intervenor for medical expenses of $2,000.50 and reimbursement of compensation paid in the amount of $5,095.00.
For the reasons stated hereinabove, there will be judgment in favor of the plaintiff, Claibert J. Morales, Sr., and against the defendants, Magnolia Chemical and Solvents, Inc., Adolph H. Hilken and Commercial Union Insurance Co., jointly, severally and in solido in the amount of one hundred sixty-four thousand one hundred sixty-one dollars and no/100 ($164,161.00) Dollars together with legal interest from date of judicial demand until paid, all court costs and expert fees in the amount of $5,838.64, and medical expenses of $2,000.50. Out of the aforesaid Judgment, intervenor is to be reimbursed the total sum of seven thousand ninety-five and 50/100 dollars ($7,095.00).”

This case primarily revolves around a credibility determination by the trial judge. We agree with the conclusion of the trial judge that Morales did not know that the chemical being pumped was sulfuric acid, that defendants failed to so inform him, that defendants failed to provide him with any safety equipment and that defendants instituted and controlled the method by which and manner in which the acid was pumped. Accordingly, we cannot conclude that the trial judge was manifestly erroneous.

Turning to issue of quantum, we note that Mr. Morales suffered sulfuric acid burns over almost 30% of his total skin surface. Mr. Morales has lost all pigmentation and hair in the burned areas, resulting in a permanent mottled “albino” effect. As much of the scarring is on his face, head, shoulders, and legs it has caused Mr. Morales to become very self-conscious. He will experience pain on a daily basis for the rest of his life, particularly in conjunction with changes in temperature and physical exertion.

While burns are among the most painful types of physical injuries, our courts have recognized that sulfuric acid burns cause indescribable pain and suffering because the acid continues to react on the body for seventy-two hours even though the wounds are thoroughly cleaned. Cain v. Witco Chemical Corp., 341 So.2d 1220, 1227, (La. App. 1st, 1976). Mr. Morales is permanently disabled and has a life expectancy of 38 years.

The standard of review to be used by this court is whether the trial judge clearly abused his discretion. In light of the particular injuries involved and their effects upon this particular person, we cannot conclude that the trial judge clearly abused his discretion. Reck v. Stevens, 373 So.2d 498, 501 (La., 1979).

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


author: SAMUEL, Judge. REDMANN, Judge,

text:
    The BANK OF NEW ORLEANS AND TRUST COMPANY v. Bushnell C. SEAVEY.
    No. 10632.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 22, 1981.
    Writ Denied July 2, 1981.

      J. David Forsyth, New Orleans, for relator.
    C. Ellis Henican, Jr., New Orleans, for respondent.
    Before SAMUEL, REDMANN, GULOT-TA, GARRISON and SARTAIN, JJ.
   SAMUEL, Judge.

This matter previously was heard, decided and handed down by a three judge panel of this court. Subsequently, the Supreme Court of Louisiana granted certiorari, reversed and remanded to us for reargument before a panel of at least five judges under La. Const. Art. 5, § 8(B).

The matter now having been heard by a five judge panel, we adhere to the views and conclusion expressed in our prior opinion and decree.

Accordingly, the judgment of the trial court is reversed, the exception of lis pen-dens is overruled, and the matter is remanded to the trial court for further proceedings in accordance with law. Costs in this court are to be paid by the defendant-respondent; all other costs are to await a final determination.

REVERSED AND REMANDED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge,

dissenting.

If a suit to annul a promissory note were filed by the maker against the payee in a state district court, and then a suit to collect the note were filed by the payee against the maker in a state district court, lis pendens would lie. Kline v. Freret, 1850, 5 La.Ann. 494; Bischoff v. Theurer, 1853, 8 La.Ann. 15.

Although multiple litigation of issues is not precluded by collateral estoppel in Louisiana, Welch v. Crown-Zellerbach Corp., La. 1978, 359 So.2d 154, it is by lis pendens, La.C.C.P. 531, and by res judicata, La.C.C. 2286. A definitive judgment in the maker’s suit against the payee, annulling a promissory note, surely will prevent a later suit on the note by the payee against the maker. Becausé there is no collateral estoppel, only res judicata could prevent such a suit in Louisiana, and if a judgment in the first suit is res judicata then the pending of the first suit is lis pendens. The identical reasoning applies to an earlier intervention in the first suit. Dick v. Gilmer, 1849, 4 La.Ann. 520.

The trial judge acted within his authority under C.C.P. 532 and his decision should be upheld.

      . Bank of New Orleans & Trust Co. v. Seavey, La.App., 374 So.2d 696.

      . Bank of New Orleans & Trust Co. v. Seavey, La., 383 So.2d 354.

        .Supra, note 1.


text:
    SOUTHERN PLASTICS SPECIALTIES, INC. v. DIXIE BREWING COMPANY, INC.
    No. 11659.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 22, 1981.

      Dan R. Dorsey, River Ridge, for plaintiff-defendant in reconvention-appellant.
    Henican, James & Cleveland, Joseph P. Henican, III, New Orleans, for defendant-plaintiff in reconvention-appellee.
    Before BOUTALL, GARRISON and KLIEBERT, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing the plaintiff’s suit to recover $16,613.00 outstanding balance plus $50,000.00 for loss of good will and injury to its credit rating. Defendant reconvened seeking damages in the amount of $100,000.00 for loss of credibility with its customers or loss of good will and for loss of business. The contract arose out of a contract between plaintiff, a retailer of plastic specialty items, and defendant, a brewery.

After trial on the merits the district court rendered judgment in favor of defendant on the principal demand, dismissing Southern Plastics’ case. Additionally, the court granted judgment in favor of Southern Plastics on the reconventional demand, dismissing Dixie’s reconventional demand. From that judgment, which we affirm in part and reverse in part, Southern Plastics appealed and Dixie Brewing Co. answered the appeal.

The trial judge provided the following written reasons for judgment:

“Mr. Fell represented to Dixie that the contract for the ‘cups’ was an exclusive arrangement. He admits the above fact, but says it was an agreement between Dixie and Southern Plastics Specialties, Inc.
Mr. Fell then explains that Packer Plastics was not a party to this ‘Exclusivity’. Further, he had no control over Packer Plastics.
Mr. DeLong testified that if Mr. Fell had told them of the ‘Exclusivity’, Packer Plastics would have honored the agreement. Why Mr. Fell ‘fell down on the job’ is not satisfactorily explained.
When Mr. Fell was confronted with the ‘Miller Cups’ he telephoned Packer Plastics to find out why. This was the moment of truth. If the agreement with Dixie was as he now contends there was no reason to telephone Packer Plastics. All he had to say was ‘Southern Plastics lived up to its agreement, it did not sell cups to anyone else’. This he did not do. (See Testimony Mr. Hooten, Mr. DeLong and Mr. Fell.)
Under the facts and circumstances of this cáse, the Plaintiff’s suit will be dismissed.
There will be judgment accordingly.”

Upon our independent review of the record, we cannot find that the trial judge was manifestly erroneous in his factual determinations. Canter v. Koehring Co., 283 So.2d 716 (1973); Arceneaux v. Domingue, 365 So.2d 1330 (1978). Indeed, we agree with the factual conclusion of the court below.

By the terms of the contract as admitted by all parties, defendant was to have an exclusive sales market on 300,000 sixteen ounce white dishwashable plastic cups manufactured by Packer Plastics and imprinted with a Mardi Gras 1978 logo. The cups were to be sold as “collectors items”.

Southern Plastics made the arrangements for manufacturer with Packer Plastics, but failed to inform Packer of the exclusive nature of the contract. Meanwhile, Packer contracted to sell a similar specialty item to Miller Brewing Co. As the Packer-Miller contract was a direct sales agreement which eliminated a retailer such as the plaintiff, Miller was able to sell the specialty item at a substantially lower cost. Dixie’s sales of the item declined accordingly. Packer testified that they would have honored the exclusivity provision if they had been informed by Southern Plastics.

On appeal Dixie contends that the trial court erred in failing to award damages to Dixie. We agree. Civil Code Article 1930 provides as follows:

“The obligations of contract [contracts] extending to whatsoever is incident to such contracts, the party who violates them, is liable as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.”

Loss of profit is sometimes a difficult element to prove. In the instant appeal, however, Dixie had run a similar sales and promotional campaign in December of 1978 for the Superbowl, which provides a basis for comparison with the Mardi Gras, 1978 campaign. Lawrence Oertling, Department Accountant and Treasurer for Dixie testified that Dixie lost a minimum of $60,572.00 as a result of the unsuccessful Mardi Gras campaign. We find that the trial court should have awarded that amount to Dixie on its reconventional demand.

For the reasons discussed, the judgment of the district court is affirmed in part and reversed in part as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein on the principal demand in favor of the defendant, Dixie Brewing Co., Inc. and against the plaintiff, Southern Plastics Specialties, Inc., dismissing plaintiff’s suit at plaintiff’s costs.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein on the reconventional demand in favor of the plaintiff-in-reconvention, Dixie Brewing Co., Inc., and against the defendant-in-reconvention, Southern Plastics Specialties, Inc., condemning it to pay damages in the amount of SIXTY THOUSAND FIVE HUNDRED SEVENTY-TWO AND NO/100 ($60,572.00) DOLLARS, plus legal interest from the date of judicial demand until paid and all costs.

AFFIRMED IN PART; REVERSED IN PART.


author: JULIAN E. BAILES, Judge Pro Tern.

text:
    Lana J. HINGLE, Administratrix, v. PLAQUEMINES OIL SALES CORPORATION, Eugene C. Nunez and Eugene E. Leon, Jr.
    No. 11811.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 22, 1981.
    Writ Denied June 22, 1981.
    Greenberg & Dallam, Nathan Greenberg, Gretna, for plaintiff-appellant.
    Butler & Reynolds, Peter J. Butler and Gayle A. Reynolds, New Orleans, for defendants-appellees.
    Before SAMUEL and GARRISON, JJ., and BAILES, J. Pro Tern.
   JULIAN E. BAILES, Judge Pro Tern.

The plaintiff-appellant, Lana J. Hingle, as administratrix of the Succession of Joseph P. Hingle, Jr., sought an injunction against the action of the Board of Directors of Plaquemine Oil Sales Corporation, its president, Eugene C. Nunez, and Eugene E. Leon, Jr., its secretary-treasurer, to prevent the implementation of certain annual salary increases to Eugene C. Nunez in his capacity as chief executive officer of the corporation. Certain other action was stated as a cause of action for the institution of this suit; however, such is not at issue in this appeal. After hearing on the rule nisi, the trial court refused to enjoin the salary increase action of the defendants. From this adverse ruling of the trial court the plaintiff has timely appealed.

A brief resume of the recent history of this closely held corporation and the employment of Mr: Eugene C. Nunez is desirable for a better understanding of the issue and its resolution. At the present time the stock of the defendant corporation is owned by the following individuals in the indicated percentages: Succession of Joseph P. Hin-gle, 50 percent; Eugene C. Nunez, 25 percent; and Eugene E. Leon, Jr., 25 percent. The plaintiff^ as administratrix of her father’s succession is a member of the board of directors, as are both Nunez and Leon. These three persons comprise the entire board of directors. In 1952 Mr. Nunez went to work for Shell Oil Company as a budget analyst. This employment continued for the next twenty years, during which period he progressed from his initial position to assistant manager of the whole of Shell’s activities in the States of Alabama, Mississippi, Tennessee and Arkansas. At the termination of his employment with Shell he was earning $37,500.00, plus a large framework of fringe benefits which monetarily greatly augmented his stated remuneration.

Mr. Nunez voluntarily severed his Shell connection to join Plaquemine Oil Sales Corporation on May 1,1972. At the close of this corporation’s fiscal year on April 30, 1972 it had an audited loss in excess of $8,500.00. At this time, in addition to Mr. Joseph P. Hingle, who was the owner of 50 percent, there were two other stockholders who owned the other 50 percent of the stock. It was from the latter two individuals that Mr. Nunez purchased his 25 percent and Eugene E. Leon, Jr. purchased the other 25 percent.

It is sufficient to state that with Mr. Nunez as the chief administrative officer alone in charge of sales, personnel, and purchasing brought the corporation from an $8,000 loss in 1972 to the point of earning a net profit in excess of $1,500,000 for the first nine months of the 1979-1980 fiscal year.

The issues on this appeal are: (1) The determination of whether the increase in annual salary of defendant-appellee Nunez, as president and chief administrative officer, to the $100,000 and $125,000 level is excessive; and (2) The propriety of the unilateral raise in salary by Nunez himself and his participation in the vote of the board of directors which authorized the raises.

At trial both the plaintiff and the defendants presented one expert witness each. Both witnesses appeared knowledgeable of the subject at hand. We believe it of value to quote the salient testimony of each witness.

Mr. Robert Peel, the plaintiff’s expert, testified as follows:

“Q. Assuming that there was a gross salary paid to the President and Chief Executive Officer of seventy-two thousand dollars for the year 1978, would you please tell us, sir, whether you would consider the increase from 1978 to 1979 to ninety-three thousand dollars plus the fifteen hundred dollars to I.R.A. to be reasonable or unreasonable?
“A. Well, based on the data from the income statement and the data from the salary survey which reflects salary for the year immediately preceding the time we’re talking about, in my estimation the salary increase would be unreasonable, and I’ll explain how I came to that conclusion. In terms of executive compensation, you generally are measuring a man’s performance. I think that’s conceded to be true. The executive’s job description is very difficult to quantify. In determining that salary, you would tend to look at what his track record has been. You would tend to look at the recent past and a little more distant past. Based upon those sort of criteria, you would make a decision as to whether or not he was entitled to an increase. Prior to that time, you would test the market to determine whether or not his current salary level was commensurate with his position and constant with the salary market at that time. The survey that I utilized was the American Management Association Executive Compensation Survey, which is conceded by a great number of people in the industry to be the most credible executive salary survey in existence. They have for some thirty-one years provided that information to corporations. It has a section of petroleum crude oil and natural gas, which reports salaries of executives in organizations in that particular segment of the industry. Based on that data, there is an indication that the seventy-two thousand dollars would be a reasonable salary. This was published in October, and it was data as of July, 1978. They indicated that for organizations with average sales of thirteen million, four hundred and five thousand dollars that a reasonable salary for the Chief Executive Officer would be seven thousand, four hundred dollars. If you look at the data, you notice as the sales volume increases or decreases, there’s a somewhat direct relationship in that salary. I would say in my estimation that an organization with a sales volume of four or five million dollars could expect to reasonably pay in the neighborhood of seventy-two thousand dollars for a Chief Executive based on this data.
“Q. Mr. Peel, in connection with that raise to the sum of one hundred thousand dollars, would you consider that to be reasonable, unreasonable, and if so, why?
“A. I think the initial raise from the seventy-two thousand dollars represented a substantial percentage increase in terms of what the relationship of profit to sales had been, in terms of what the track record had been, in terms of what the cost containment had been because they had increased in all of those areas from ’74 to ’79. In light of the fact that there had been one raise immediately prior to that or within six months prior to that, I would tend to think it was unreasonable.
“Q. Let’s take it one step further and get to the nitty-gritty of what what we’re really at issue with here today. The subsequent raise in December of 1979 to $125,000.00 per annum plus the bonus of $12,500.00, which was voted on at that time, tell us your opinion as to that and why.
“A. Looking at the $125,000.00 raise and looking at the sales volume of that corporation, I would tend to think that the man is overpaid. He’s overpaid because that sort of salary level is indicative of a sales data group of 25 to 50 million dollars in terms of the data, and it’s the only objective data or some of it available. That represents a sales group of 25 to 50 million dollars.”

Mr. Gerard E. Watzke, the defendants’ expert, gave the following testimony:

“Q. Have you attempted to apply your criteria for establishing a compensation package to Mr. Nunez’s particular situation?
“A. Yes, I have.
“Q. What have you concluded:
“A. My conclusion is that the reasonableness of Mr. Nunez’s salary, in my judgment, is beyond question. How I got to it is like this. In terms of what an executive search firm would do — Well, they would look at the market value of the executive. In the case of Mr. Nunez, there is no obvious way determining market value because he hasn’t been seeking a job in the open market and has no letter of offer which says that in the open market he is worth this much. So we have to look to other data, which could be his history. That’s the most obvious one anyhow. For this I looked at the compensation which was being provided to Mr. Nunez as an employee of Shell Oil immediately prior to his joining Plaquemines Oil Sales Corporation. I noted in 1971 his salary was $37,500.00. If one adds on to this — In my judgment, a company such as Shell — Well, I know something of Shell’s compensation policies because I worked for them in summers and so forth as an engineer some years ago. Anyhow, I would think a reasonable figure to tack onto that would be about 40 percent, but surveys will differ with this depending upon the industry and the company within the industry. Shell happens to be one of the better employers in this regard. If one looks at that and assumes no promotion and no bonus with a modest 10 percent in salary a year, by 1980 he would be making $124,-000.00. In reviewing the accompanying data, Plaquemines Oil Sales Corporation data, for the first time the compensation will equal the Shell compensation, for the first time. There’s substantial differences in fringe benefits and the tax implications of not having the benefits, but the Plaquemines salary now is about equivalent to what he would be making with Shell under the assumptions I stated. Although that parity may be present now, we’re looking at a $191,000.00 loss by 1980 as a result of Mr. Nunez’s employment with Plaquemines Oil Sales because he has foregone during this period that amount of compensation by virtue of his employment with Plaquemines Oil Sales. You must put it in the context of the business itself, Plaquemines Oil Sales. My notions of the success of the business are relatively simple. I look at the state of the business when Mr. Nunez became employed and the state of the business today. I note that if one uses as a cut point fiscal year 1979 — Well, we heard that in the nine months following that there had been substantial increase in all the figures. Sales increased some two and a half times. Expenses increased about 2.1 times. Stockholders equity, which has not been discussed here, increased about five times. If one uses the updated data, the six-month data as opposed to the nine-month data, for the fiscal 1980, sales is increasing by five times and expenses by three times and Stockholders’ equity some twenty times. If you take a five-year average, on the return of assets we’re looking at a figure of 24 percent. I view this as an outstanding success. If one looks at the historical relationship within this business, the accounting data, one finds for the period of 1975 to ’79, for example, that Mr. Nunez’s compensation was something like 1.4 to 1.5 percent of sales. If one applies that historical relationship to the sales figure that we see evolving for 1980, we’re looking at a compensation package that should be worth one hundred and fifty or one hundred and sixty thousand dollars. If we look at the expenses, we get the same kind of thing. Given the relationship of Mr. Nunez’s salary to expenses, the compensation of $123,000.00 would be my exact figure. I look at the success of the business, the performance, which we have over that long a period to believe that the quantitative part of the criteria are certainly satisfied. In using these sort of data, one must recognize that a compensation cannot be viewed merely as a compensation for performance at that instance. If you look at the condition under which Mr. Nunez joined the company and the extremely low salaries that he drew in the early years as he was attempting, by his testimony, to turn the company around, my conclusion was he was substantially underpaid for those years. The rough validation of that would be to look at the earnings stream had he stayed with Shell. The qualitative aspects of making this kind of judgment would devolve on the skills demanded by this kind of position. As I understand it, he was handling all managerial aspects of the company; financing, delivery, personnel, external relations. I gather in all of these things that Mr. Nunez is the sole decision maker, so the interrelated necessity of these activities suggest he performs a much more complex type of work with Plaquemines Oil Sales than he was performing with Shell, for which his compensation was as we have it. The last bit of qualitative input I used would be the leadership role Mr. Nunez has taken in his professional organizations. In a school of business administration, we constantly teach that to be a successful executive today, you must get outside the firm and work with the external environment. We preach that from morning till night. I need not repeat Mr. Nunez’s testimony of his roles in dealing with the external environment. It’s the kind of leadership which we can’t place an exact dollar value on. I apply basically an earnings pattern against the success of the business. I want to emphasize that this company has done very, very well by anyone’s standards, Fortune 500, anyone. I added on these qualifying factors to reach my judgment.”

The events which precipitated this action are the following: Mr. Nunez unilaterally raised his salary to $100,000 in May, 1979. Then the board of directors, at its meeting on July 2, 1979, approved the raise. At a December, 1979 board of directors meeting the salary was again raised; this time to $125,000, plus a bonus of $12,500.

The trial court in its reasons for judgment denying the injunction stated:

“This Court feels that the increase in salary is rather dramatic. However, plaintiff has not discharged her burden of proof to convince the Court that it is so excessive that relief must be granted.”

It is obvious that the trial judge was more impressed with the testimony of the defendants’ expert and the conclusion arrived therefrom than that of the plaintiff’s expert.

Our review of appeals extends to law and facts. The standard of appellate review is well prescribed by the Supreme Court in the case of Canter v. Koehring Company, 283 So.2d 716 (La.1973).

In Arceneaux v. Domingue, 365 So.2d 1330 (La.1979) the court, in defining the term “manifestly erroneous”, stated on page 1333:

* * * * * *
“As an aid to the exercise of the appellate function of review of facts in civil cases, we attempted to explain, in Canter v. Keohring, supra, without great detail, the appropriate standard. We said that ‘even though the appellate court may feel that its own evaluations and inferences are as reasonable,’ it should not disturb reasonable findings of the trial court when there is conflict in the testimony. We prefaced this observation: ‘When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.’ 283 So.2d 716, 724. (Emphasis added). “We did not foresee that this explanation would be misunderstood to mean that: ‘There is no manifest error when the evidence before the trier of fact furnishes a reasonable basis for its finding.’ We said the appellate court should not disturb the factual finding in the absence of manifest error. The difference is important. ‘Manifestly erroneous,’ in its simplest terms, means ‘clearly wrong.’ We said then, that the appellate court should not disturb such a finding of fact uniess it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).”

Guided by these precepts of judicial review we find that the judgment of the trial court is not manifestly erroneous because its finding is not clearly wrong. Therefore, even if we were to disagree with the trial court, proper judicial review makes it impermissible for this court to reverse.

We now pass to the second issue, namely: The propriety of appellee, Mr. Eugene C. Nunez, participating in the vote of the board of directors which authorized his subject pay raises.

R.S. 12:84, in extract,- is here quoted: “No contract or transaction between a corporation and one * * * of its directors or officers * * * in which one * * * of its directors or officers * * * has a financial interest, shall be void or voidable solely for this reason * * * or solely because his * * * votes were counted for such purpose, if:
% * SH * *
“(3) The contract or transaction was fair as to the corporation as of the time it was authorized * *

Thus, it having been determined that the contract or transaction, namely, the raising of Mr. Nunez’s salary from $93,-000 to $100,000, then to $125,000, was fair as to the corporation as of the time it was authorized, there is no ground for the disqualification of Mr. Nunez as a voting member of the board of directors. See McCann v. Baton Rouge Millwork, Inc., 386 So.2d 763 (La.App. 1st Cir. 1973); writ refused.

For the foregoing reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Joel B. DICKINSON v. Jeanelle M. DICKINSON.
    No. 14023.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Weldon H. Hill, Baton Rouge, for plaintiff-appellee Joel B. Dickinson.
    Mary Olive Pierson, Baton Rouge, for defendant-appellant Jeaneile M. Dickinson.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

The husband, Joel B. Dickinson, sought a judgment of separation from his wife, Jea-neile M. Dickinson, based on specifically alleged acts of cruel treatment. Mrs. Dickinson reconvened for a judgment of separation based on abandonment and acts of mental cruelty. From a judgment in favor of the plaintiff granting a separation between the parties and dismissing the defendant’s reconventional demand, Mrs. Dickinson appeals. We affirm.

At the trial the parties and two of their neighbors testified. It was stipulated that two other neighbors would testify along the same lines. The record supports the trial court’s finding that the wife was at fault in the separation. The evidence reveals that the wife, for a period of several years, and without the husband’s consent, unjustifiably refused to have sexual relations with her husband.

It is settled that cruel treatment by one spouse of the other, in any form which renders living together insupportable, is a proper legal ground for separation from bed and board. LSA-C.C. art. 138; Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4 Cir.1976). Thus, a persistent refusal to engage in sexual union, in the absence of consent or sickness or grave fault may constitute cruel treatment. Phillpott v. Phillpott, 285 So.2d 570 (La.App. 4 Cir.1973), writ refused, 288 So.2d 643 (La.1974); see also Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980); Denbo v. Denbo, 345 So.2d 1257 (La.App. 1 Cir.1977).

Based on the totality of the circumstances, the trial court found Mrs. Dickinson was guilty of cruel treatment. In such situations as this, the findings of the trier of fact should be left undisturbed in the absence of manifest error. Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1 Cir.1976); Gurtner v. Gurtner, 258 So.2d 148 (La.App. 4 Cir.1972). We cannot state that manifest error is present here.

Accordingly, for the above reasons, we affirm the judgment decreeing a separation from bed and board in favor of plaintiff, Joel B. Dickinson, and against defendant, Jeanelle M. Dickinson, and dismissing defendant’s reconventional demand; we cast the costs of this appeal on the defendant-appellant.

AFFIRMED.