author: SCHOTT, Judge.

text:
    Glenn A. SCHEER v. PAT O’BRIEN’S BAR, INC., Defendant-Appellant, ABC Insurance Company, Lonnie T. Eastland, John “Sidney” Serentine, and Charlie Lee Jones.
    No. 12038.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1981.

      John R. Martzell, Martzell, Montero & Lamothe, New Orleans, for plaintiff-appel-lee.
    R. K. Christovich, Christovich & Kearney, New Orleans, for defendant-appellant (Pat O’Brien’s Bar, Inc.).
    Before REDMANN, SCHOTT and KLIE-BERT, JJ.
   SCHOTT, Judge.

This is a damage suit for personal injuries sustained by Glenn A. Scheer in a beating administered to him by three employees of the defendant, Pat O’Brien’s Bar, Inc. The case was tried to a jury which returned a verdict in plaintiff’s favor for $50,000 against Pat O’Brien’s Bar. None of the three individuals was cast in judgment. In this appeal defendant raises issues over evi-dentiary rulings by the trial judge and the charge and interrogatories given to the jury. Defendant also takes issue with the quantum of damages contending that the award was grossly excessive.

At about 6 AM one Saturday morning plaintiff and his companion, Edward Duke, after partying all night, decided to go to Pat O’Brien’s, a popular tavern in the French Quarter of New Orleans. The manager, Lonnie T. Eastland, was standing in front of the establishment with a security guard, Rocky Macaluso. Plaintiff was told the place was closed, and exactly what transpired in the brief conversation which followed is in conflict. According to plaintiff and Duke, Eastland punched plaintiff in the face for no reason, knocking him to the ground whereupon two other employees of Pat O’Brien’s, defendants Sidney Serentine and Charles Jones, administered a beating to plaintiff. These two defendants were not on duty as employees at the time. They had completed their shifts as night managers and were at a bar across the street from Pat O’Brien’s when they saw Eastland having difficulty with plaintiff.

According to the three defendants, the security guard and the two other witnesses, plaintiff provoked the fight by threatening Eastland with a ceramic beer mug and throwing it at him. These witnesses testified that the beer mug shattered against the wall of Pat O’Brien’s. However, plaintiff and Duke testified that the beer mug plaintiff was carrying was plastic and flew up in the air after he was struck by East-land. Defendants’ version of the affair was that after Eastland was intimidated he shoved plaintiff away and Serentine and Jones intervened when they saw plaintiff throw the mug at Eastland and feared that Eastland was in danger. They testified that they struck plaintiff because he was struggling and fighting with them and that plaintiff struck the first blows at them. Since the jury resolved this conflict in favor of plaintiff and Duke the case would ordinarily be susceptible of easy disposition in this court since the case would seem to be a credibility call. However, if defendant’s contentions with respect to the evidentiary rulings and the trial judge’s instructions and special interrogatories are correct we must disregard the findings of the jury and decide the case on the record ourselves.

The first question raised by defendant is over the trial court’s failure to admit testimony regarding a previous arrest of plaintiff on a charge of public drunkenness. While plaintiff was under cross examination he was asked the question, “Have you ever been arrested, sir, for intoxication in public, sir?” Plaintiff’s objection to this question was sustained by the trial judge and defendants elicited testimony from plaintiff on a proffer outside the presence of the jury that he had been arrested around 1973 in Chattanooga, Tennessee, for being drunk in public, spent four hours in jail, paid a fine and was released the following morning.

The precise question to which the objection was made was whether plaintiff had been previously arrested for public drunkenness. As to this question defendant’s reliance on Ashley v. Nissan Motor Corp., in U. S. A., 821 So.2d 868 (La.App. 1st Cir. 1975) writs refused 323 So.2d 478, is misplaced. That case held that a previous conviction is admissible to impeach the credibility of a witness but it did not sanction the use of a previous arrest for impeachment purposes. LSA-R.S. 15:495 specifically prohibits the use of a previous arrest to impeach credibility in criminal prosecutions. In Sikes v. McLean Trucking Co., 383 So.2d 111 (La.App. 3rd Cir. 1980) the court recognized that this statute does not apply to civil cases but held that the same rule áp-plies based on “the weight of this state’s jurisprudence.” There, in a case arising out of a vehicular collision, the court allowed evidence of prior convictions of driving while intoxicated on the part of defendant’s driver.

While it seems clear that a previous arrest is not admissible, the issue raised by defendant goes beyond this question because in the proffer plaintiff admitted that he paid a fine on the previous occasion, implying that he was convicted on his own plea of guilty. Assuming that to be so, we nevertheless conclude that the evidence was inadmissible and properly excluded. In Cambrice v. Ferm Supply Co., Inc., 285 So.2d 863 (La.App. 4th Cir. 1973) we held that evidence of a prior traffic conviction was inadmissible in an automobile accident case, reiterating the rule announced by our predecessor court in Buras v. Peck, 83 So.2d 783 (La.App.Orl.1955). The rationale for this rule seems to be that such a prior conviction has no bearing on the witness’s credibility and is irrelevant to the issue of the witness’s negligence in the case being tried. Similarly, plaintiff’s arrest and presumed conviction for public drunkenness on an occasion five years prior to the incident in question here was irrelevant to the issue sought to be proved by defendant that plaintiff was drunk on this occasion. The evidence is uncontradicted that plaintiff and his companion had been drinking prior to the incident, but this old incident could scarcely affect his credibility in his testimony that he was not drunk on this particular occasion.

We likewise reject defendant’s argument that this isolated arrest or conviction for drunkenness when plaintiff was 24 years of age was admissible to rebut any suggestion that plaintiff was a good, law abiding citizen. We are not persuaded that plaintiff’s character or reputation was an important issue at trial and deem the previous arrest or conviction irrelevant.

The other evidentiary ruling complained of by defendant is with respect to the trial court’s allowing the investigating police officer to read portions of his report written some hours after the investigation. This argument has no merit. The police officer testified before the jury that he took notes during his investigation and incorporated the information in his formal report which he was given while on the witness stand for the purpose of refreshing his memory.

In attacking this procedure defendant refers to Veal v. Hutchinson, 284 So.2d 60 (La.App. 4th Cir. 1973) writs refused 286 So.2d 662, but that case is distinguishable. There we held that the police report made by a deceased policeman was inadmissible. In the present case the policeman was available for cross examination and he used his report primarily to refresh his memory. To the extent that he read portions of his report, it was admissible as past recollection recorded. Aetna Casualty & Surety Company v. Braud, 327 So.2d 183 (La.App. 4th 1976); Primeaux v. Kinney, 256 So.2d 140 (La.App. 3rd Cir. 1971).

We next consider defendant’s objections to the trial judge’s inclusion in his jury charge of five special instructions requested by plaintiff. Plaintiff’s special requested instruction No. 1 was as follows:

“He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act. Thus, if you find that Lonnie Eastland in any way assisted or encouraged Charlie Jones and Sidney Serentine in their alleged assault upon Glenn Scheer, Lonnie Eastland is liable to Glenn Scheer for his injuries even if East-land himself never actually administered one blow.”

Defendant first contends that there was no evidence at the trial on which to base the instruction. However, Duke’s testimony was to the effect that after Eastland punched plaintiff he beckoned toward Ser-entine and Jones, who jumped on plaintiff and beat him. Furthermore, Duke testified that Eastland threatened him and ordered him to leave, thus discouraging him from rendering assistance to plaintiff. Thus, defendant’s objection has no merit.

Defendant next contends that the instruction is a “gross misinterpretation” of the law. However, the first sentence is quoted from LSA-C.C. Art. 2324, and the second merely paraphrases the article to include the parties and their alleged tor-tious conduct. We are not persuaded that the instruction was erroneous.

Next, defendant complains of plaintiff’s special requested instruction No. 2:

“If an individual even tacitly enters into a conspiracy with others to injure a person and thereafter, assists or encourages the commission of a battery on said person, such individual is answerable in soli-do with the other defendants for damage caused by said battery.”

In this instance defendant takes issue especially with the use of the word “conspiracy” in the instruction arguing that there was no evidentiary basis for its inclusion and that such use was per se prejudicial. “Conspiracy” in the popular sense simply connotes a combination of persons for an evil purpose. “Websters Dictionary” compiled by John Gage Allen, Ph.D. 1981 Edition. Duke’s testimony provided a factual basis for the instruction while Miller v. Keating, 339 So.2d 40 (La.App. 3rd Cir. 1976), amended and affirmed 349 So.2d 265 (La.1977) supports it legally.

Plaintiff’s special requested instruction No. 3 is as follows:

“Even if you find that Glenn Scheer committed an aggressive act which justified a battery, the law of Louisiana allows the person retaliating to use only so much force as is necessary to repel the aggression. Where more force than that which is necessary is used, the person retaliating is liable in damages for the injuries caused by employment of force in excess of what would have been reasonably necessary.”

Here defendant confines his objection to the use of the words “even if” at the beginning of the instruction, contending that this tended to show feeling on the part of the court and had the effect of overwhelming the jury. Even if the use of the two words were error it would be harmless error at worst and surely not reversible, especially considering that the judge told the jury repeatedly that they were the sole judges of the facts of the case.

Defendant next assigns error to the inclusion in the charge of plaintiff’s special requested instruction No. 10 as follows:

“If you find that Lonnie Eastland’s actions toward Glenn Scheer were done in furtherance of his job as manager at Pat O’Brien’s, then his participation in the battery alleged committed upon Glenn Scheer is attributable to Pat O’Brien’s and Pat O’Brien’s Bar is solidarily liable, along with Eastland, Serentine and Jones for the injuries sustained by Glenn Scheer.”

Defendant contends that this instruction improperly “lumps together” the acts committed by the three defendants and tends to obviate “all of the testimony at trial,” that Eastland only struck or pushed plaintiff once. This argument overlooks Duke’s testimony already referred to. From a legal point of view we are satisfied that this instruction is a correct statement of the law as discussed in Miller v. Keating, supra.

Finally, defendant complains about plaintiff’s special requested instruction No. 11:

“If you find that Lonnie Eastland, as manager on duty of Pat O’Brien’s Bar, Inc., was present when Charlie Jones and Sidney Serentine committed a battery upon Glenn Scheer and that Eastland had been party to the original argument which led to the battery, and made no attempt physically or verbally to restrain his co-employees then Lonnie Eastland is liable to Glenn Scheer for the injuries he suffered in that he acquiesced and condoned and approved the actions of Charlie Jones and Sidney Serentine.”

In Murray v. Dominick, 236 So.2d 626 (La.App.2nd Cir.1970) from which this instruction was taken, Murray was beaten by Dominick’s employee in his presence. The court held:

“Therefore, we are unable to escape the conclusion, even if it could be said that Dominick was not an actual participant in the affray, he was present, acquiesced in, condoned, and approved the actions of his employee. Dominick’s failure to protest the action of Reid, his employee, must therefore be regarded as an approval or as a condonation of his agent’s action.”

Defendant argues that this statement is inapplicable because Eastland had no authority over the two off-duty night managers. However, Eastland, who was on duty as manager at the time, was in charge of Pat O’Brien’s for whom the others worked. If Duke’s testimony is believed Eastland did prevail upon the others to beat plaintiff, thus exercising authority over them. Under these circumstances we cannot conclude that the instruction was erroneous.

To our discussion of the specific objections and arguments made by defendant to the charge we add that these excerpts have been taken from the context of comprehensive instructions which correctly discuss the legal principles applicable in a suit based on assault and battery, including burden of proof, liability to one who was an aggressor at the outset and self defense. Even if a sentence or paragraph here and there is questionable the charge as a whole was not erroneous. Furthermore, a reading of this record convinces us that the jury made its ultimate decision after resolving the conflict between plaintiff and his witness on the one hand and the three defendants and their witnesses on the other hand, in favor of plaintiff. The jury had to be impressed with the extent of the injuries sustained by this 29 year old plaintiff, who was six feet tall and weighed 140 pounds, at the hands of Serentine, 31 years old, six feet tall and weighed 170 pounds; Jones, 40 years old, 6’4” tall and weighed 200 pounds, and East-land, 60 years old, 6 feet tall and weighed 225 pounds. For them to reach their verdict they had to believe that plaintiff was the victim of an unwarranted attack and excessive beating initiated by Eastland in the performance of his duties as the manager of Pat O’Brien’s and joined in by Seren-tine and Jones at the request and with the encouragement of Eastland. Once this conclusion is reached any errors contained in the instructions quoted above would at worst be harmless error but not reversible.

Defendant next complains that the interrogatories submitted to the jury by the trial court were incomplete and confusing. They were as follows:

“Is Glenn A. Scheer entitled to recover damages from any or all defendants?
YES_ NO_
If no, do not answer any other questions.
What amount of money damages do you award to plaintiff?
$_
Against whom is plaintiff entitled to recover damages?
1. Pat O’Brien’s_
2. Lonnie T. Eastland_
3. Sidney Serentine_
4. Charlie L. Jones_”

This objection to interrogatories is not properly before us because defendant failed to object to the interrogatories before the jury retired to deliberate. St. Pierre v. General American Transp. Corp., 360 So.2d 595 (La.App. 4th Cir. 1978). In any event, while the interrogatories did not include a question as to whether Pat O’Brien’s was vicariously liable to plaintiff for the actions of Eastland or the others they must be considered in relation to the charge to the jury which properly outlined what they had to find in order to hold Pat O’Brien’s vicariously liable. Furthermore, the trial court has discretion under C.C.P. 1812 to submit interrogatories on “one or more issues of fact.” Defendant has not demonstrated an abuse of such discretion.

Defendant’s last assignment of error is addressed to the amount of award which was $50,000, including general and special damages. Plaintiff sustained multiple fractures of the bony structure beneath his left eye, the front wall of his sinus was crushed, surgery was required, a tooth was eventually lost, and he was left with some permanent disfigurement, loss of some sinus function and numbness. His medical expenses exceeded $3,800.00 and he incurred some loss of income. While the latter item was not specifically proven plaintiff’s testimony that his treatment and recuperation period caused him to lose momentum in earning bonuses and commissions was corroborated by his tax returns. Considering the principles discussed in Folse v. Fakouri, 371 So.2d 1120 (La.1979) this evidence was quite sufficient to enable the jury to include a substantial figure in its verdict for loss of earnings. In the final analysis we regard Reck v. Stevens, 373 So.2d 498 (La.1979) as authority for rejecting defendant’s argument that the award constituted an abuse of the jury’s discretion.

Accordingly, the judgment is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Roy E. PENNINGTON, Jr. v. Wilfred BARNHILL, Individually and as Administrator of the Estate of Brian A. Barnhill, Maryland Casualty Company, David F. Boudreaux, Henry P. Boudreaux, and National General Insurance Company.
    No. 14657.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 8, 1981.
    Leslie Clement, Thibodaux, for plaintiff5 and appellee.
    Denis J. Gaubert, III, Thibodaux, for defendants and appellants David F. Bou-dreaux, Henry P. Boudreaux and National Gen. Ins. Co.
    Leopold B. Babin, Houma, for defendants and appellees Wilfred Barnhill and Maryland Cas. Co.
    Before LOTTINGER, EDWARDS, and PONDER, JJ.
   EDWARDS, Judge.

Roy E. Pennington, Jr., brought suit against Wilfred Barnhill, individually and as administrator of the estate of Brian A. Barnhill, Maryland Casualty Company, David F. Boudreaux, Henry P. Boudreaux, and National General Insurance Company.

Plaintiff alleged that on March 29, 1980, the automobile which he was driving was negligently struck from the rear by an automobile driven by Brian A. Barnhill, owned by Wilfred Barnhill, and insured by Maryland Casualty Company.

Plaintiff further alleged that on July 7, 1980, the automobile he was driving was negligently struck from the rear by a truck driven by David F. Boudreaux, owned by Henry P. Boudreaux, and insured by National General Insurance Company.

Alleging various injuries, plaintiff prayed for judgment in his favor and against all defendants, individually, jointly, and in soli-do for the amount of $185,000 together with legal interest from date of judicial demand and all costs.

All defendants filed dilatory exceptions of improper joinder of parties. The thrust of this exception was that plaintiff’s petition, on its face, was based upon two separate and unrelated causes of action occurring more than three months apart and involving different parties. Appellants urged that there was no community of interest upon which a cause of action based on the two distinct incidents could be maintained.

The exceptions filed by defendants were argued, but were dismissed by the trial judge. From that judgment of dismissal defendants David F. Boudreaux, Henry P. Boudreaux, and National General Insurance Company appeal.

LSA-C.C.P. Art. 2083 provides:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

The judgment appealed from is clearly interlocutory. Furthermore, despite the claims of appellants, it is not clear that the bases for plaintiff’s suit are so distinct that to try them in one case would cause irreparable injury to defendants. The two incidents alleged were both rear end automobile collisions and they occurred within about three months of one another. Evidently, the trial judge believed that the trier of fact should determine which group of parties defendant, if either, were responsible for plaintiff’s injuries. We cannot say that his decision causes irreparable injury to either set of defendants or to appellants in particular. The motion to dismiss, filed by plaintiff, is granted.

APPEAL DISMISSED.

PONDER, J., concurs believing that the matter should be handled by writ.


author: PER CURIAM.

text:
    Henry F. WILLIAMS v. WINN-DIXIE OF LOUISIANA, INC.
    No. 13200.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 1981.
    Dennis R. Whalen, Baton Rouge, for plaintiff-appellant Henry F. Williams.
    Peter T. Dazzio, Baton Rouge, for defendant-appellee Winn-Dixie Louisiana, Inc.
    Before Covington, Lattinger, and Cole, JJ.
   PER CURIAM.

This case was remanded to us for a determination of any damages due plaintiff for injuries he may have sustained as a result of slipping and falling in one of defendant’s grocery stores. Our original per curiam disposition (unpublished) affirmed the trial court’s finding that defendant was not negligent. The Supreme Court, with a complete recitation of the attendant circumstances, concluded defendant was negligent, its negligence caused plaintiff to fall, and plaintiff was not contributorily negligent. 393 So.2d 680 (La.1981).

When plaintiff slipped and fell to the floor he scraped his left elbow and allegedly injured his back. At the time of the fall, October 25, 1975, plaintiff’s only complaint was with respect to the elbow. A store employee administered an antiseptic spray to the small cut sustained. There is no evidence of any further treatment for the elbow.

Several weeks after the accident plaintiff saw his regular physician complaining of low back pain. He was referred to Dr. John F. Loupe, an orthopedic surgeon, who prescribed flexion exercises and medication. A few weeks later plaintiff was found to be doing very well but in April 1976, approximately six months after the accident, his complaints led to a brief period of hospitalization during which time he underwent conservative treatment, including traction and physical therapy.

Two weeks after the hospitalization plaintiff was well enough to be discharged by his physician with instructions to return as necessary. Plaintiff was again discharged on June 9, 1976, with instructions to continue his exercises. He is described at that time as having a mild back ache. Plaintiff did not see Dr. Loupe again until February 28, 1978, when he allegedly was experiencing back pain. Again, he was discharged, to continue with his exercises. At the time of trial, April 9, 1979, plaintiff maintained he was still experiencing back pain. Total medical expenses proven by plaintiff, as regards treatment of his back, amounted to $756.83. The medical evidence established, at most, a mild to moderate lumbosacral strain. The existence of a ruptured disc was negated.

At trial, plaintiff’s answers were vague when questioned about his prior medical history. He specifically denied any previous back trouble, admitting to back pain only when carrying a pack while in the army. When pressed about being hospitalized in 1972 for low back pain, plaintiff’s evasiveness caused the trial judge to comment: “Well, it bears on credibility of the witness, not answering questions.” Documentary evidence was introduced conflicting with plaintiff’s statement he had never had back trouble in the past.

Since the trial judge decided the case adverse to plaintiff on the basis of liability, he did not reach the question of quantum. Accordingly, the very obvious issue of credibility was not passed upon and the conflicting evidence was not resolved by the trial court. Left unanswered were several questions essential to assessing the nature and extent of injuries sustained by plaintiff. Among these are whether plaintiff actually injured his back when he fell in defendant’s store, or whether plaintiff simply has a pre-existing chronic back problem. Also, assuming plaintiff did, in fact, injure his back in the fall, is he telling the truth when he states he now suffers continuously from back pain? These questions could only be answered after determining plaintiff’s veracity and weighing the result along with other evidence adduced.

The trial judge was well aware of the credibility issue in this case and undoubtedly would have made a reasonable evaluation of plaintiff’s credibility as related to injuries had he been called upon to do so. Within the context of this clearly presented issue, a proper allocation of trial and appellate functions requires we remand this case to the trial court for the initial assessment of any damages due plaintiff. The determination of credibility is a function properly allocated to the trial court, whether judge or jury. Williams v. Allstate Ins. Co., 367 So.2d 1318 (La.App. 4th Cir. 1979). A trial court has the better capacity to evaluate a live witness, as compared with our access only to a cold record. Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). See also, Guidry v. Davis, 382 So.2d 250 (La.App. 3d Cir. 1980); Reed v. Henry, 343 So.2d 457 (La.App. 3d Cir. 1977).

For the foregoing reasons, this case is remanded to the trial court for the initial determination of any damages due plaintiff, and for the imposition of court costs.

REMANDED.


author: FORET, Judge.

text:
    Glenn VASCOCU, Plaintiff-Appellant, v. Gerald SINGLETARY, et al., Defendants-Appellees.
    No. 8324.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 11, 1981.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff-appellant.
    Mayer, Smith & Roberts, Mark A. Goodwin, Shreveport, for defendants-appellees.
    Gerald Singletary, in pro. per., Don W. Martin, Leesville, for defendant-appellee.
    Before FORET, SWIFT and DOUCET, JJ.
   FORET, Judge.

Glenn Vascocu (appellant) appeals from a trial court’s judgment which granted a motion for summary judgment filed by Western World Insurance Company, Inc. (Western).

The sole question presented is whether there is no genuine issue as to material fact, hence entitling Western to judgment as a matter of law.

FACTS

Appellant seeks to recover damages for personal injuries he received when struck by shotgun pellets in his left leg and foot. The shooting occurred during a barroom brawl on October 26, 1979, at a lounge known as the “Cajun Club”, which is located in Natchitoches Parish, Louisiana.

Gerald Singletary and Roger Mayo were partners in the operation of the lounge. Appellant named them as defendants and alleged that Singletary was the one who shot him. In addition, appellant named the insurer of the premises, Western, as a defendant.

Western filed its motion for summary judgment alleging that its policy contained a clause which excluded coverage for injuries resulting from an assault or battery. Western further alleged that appellant’s injuries resulted from a battery and therefore it was in no way liable to him. The trial court rendered judgment in favor of Western granting its motion. Plaintiff appeals from this judgment.

In support of its motion for summary judgment, Western introduced in evidence the deposition of Gerald Singletary, with attachments, and a certified copy of the policy issued by it.

The policy issued by Western contains the following exclusionary clause:

“In consideration of the reduced rate of premium charged, it is understood and agreed that this policy excludes claims arising out of assault and battery, whether caused by or at the instigation of, or at the direction of, or omission by, the insured, his employees, patrons or any cause whatsoever.”

Western contends that the testimony given by Gerald Singletary in his deposition clearly shows that appellant’s injuries resulted from a battery, and therefore, the exclusionary clause of its policy is applicable and that it is entitled to summary judgment as a matter of law.

The interest in freedom from intentional and unpermitted contacts with the plaintiff’s person is protected by an action for the tort commonly called battery. The protection extends to any part of the body, or to anything which is attached to it and practically identified with it. Prosser: Law of Torts (4th Ed.), pg. 34.

Appellant alleged in his petition that, as he was standing and watching the fight, Gerald Singletary struck him on the back of his head. Appellant further alleged that, thereafter, as he was attempting to leave the premises, Gerald Singletary fired a shotgun and the pellets struck him on the left leg and foot.

There is no dispute with regard to the fact that appellant in no way consented to these contacts with his person. Rather, appellant argues that there is a genuine issue as to the material fact of whether Gerald Singletary intended to make the unpermit-ted contact and, therefore, committed a battery.

Gerald Singletary testified unequivocally that he did intend to strike appellant on the head with a club he had secured after the fighting broke out. The parties seemed to be in agreement that this constituted a battery. However, appellant contends that there is a genuine dispute as to whether Singletary intended to shoot him. Apparently, it is appellant’s position that Single-tary accidentally shot him, or, at least, a dispute exists with respect to the issue of whether he did so. Thus, appellant contends that the trial court erred in granting appellee’s motion for summary judgment.

Singletary testified that, while he intentionally fired the shotgun, he had no intention of shooting anyone. He stated that he fired the shotgun at the wooden floor of the lounge in an attempt to scare those who were fighting. He also stated that he was being severely beaten by appellant and another person at that time.

The Louisiana Supreme Court, in Bazley v. Tortorich, 397 So.2d 475 (La.1981), had occasion to discuss the element of “intent” in the context of intentional torts. Bazley stated, on page 481, that:

“The meaning of ‘intent’ is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself.”

See also Prosser: Law of Torts (4th Ed.), § 8; Monk v. Veillon, 312 So.2d 377 (La.App. 3 Cir. 1975).

In opposition to Western’s motion for summary judgment, plaintiff-appellant filed an affidavit reciting his version of what occurred on the night of the shooting. He stated that, after being repeatedly struck on the head by what he believed was a pool cue, he went behind the bar to keep from getting hit again, and to leave the premises by the back door. He stated that Singletary was behind the bar and the two of them started fighting. Appellant’s version of the shooting is that he knocked Singletary down, and that Singletary then got up from the floor and procured the shotgun from under the bar. Singletary then stood up and pointed the gun at plaintiff, whereupon plaintiff stated that he slapped the barrel downward, at which time the gun discharged, hitting plaintiff in the left leg and foot.

SUMMARY JUDGMENT

LSA-C.C.P. Article 966 provides that a motion for summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

In deciding whether all material issues have in fact been disposed of, any doubt is to be resolved against the granting of summary judgment and in favor of trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Employers’ Surplus Line Insurance Company v. City of Baton Rouge, 362 So.2d 561 (La.1978).

On a motion for summary judgment, the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings. Sanders v. Hercules Sheet Metal, Inc., supra.

In consideration of this motion for summary judgment, this Court must view the facts as recited by plaintiff in the light most favorable to him, in his opposition to the motion for summary judgment. It is apparent that a genuine issue of material fact does exist in this case. That issue is whether Singletary, when he raised the gun towards the plaintiff, intended to shoot him or not. This is an issue which can only be decided on trial of the merits. Western claims that there was an intentional battery, and appellant’s contentions are that the shooting was accidental. Thus, the trial court improperly granted appellee’s motion for summary judgment.

For the above and foregoing reasons, the judgment of the trial court is reversed. This action is remanded for trial on the merits accordingly.

All costs of this appeal are assessed against defendant-appellee.

REVERSED.

      . Roger Mayo filed a third party demand against appellee, Western World Insurance Company, Inc. The trial court, in granting ap-pellee’s motion for summary judgment, dismissed Mayo’s third party demand. Mayo has not taken an appeal with respect to that portion of the trial court’s judgment.

      . The attachments consist of a transcript of the proceedings in which Gerald Singletary plead guilty to the crime of simple battery.

      . “Art. 966. Motion for summary judgment; procedure
      The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”


author: SWIFT, Judge. FORET, Judge,

text:
    CHRYSLER CREDIT CORPORATION, Plaintiff-Appellant, v. Glenn B. STOUT, Jr., Defendant-Appellee.
    No. 8332.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 11, 1981.
    Codings & Codings, R. William Codings, Lake Charles, for plaintiff-appellant.
    E. M. Nichols, Lake Charles, for defendant-appellee.

      Before FORET, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

Chrysler Credit Corporation (Chrysler) instituted this suit for a deficiency judgment against Glenn B. Stout, Jr. The plaintiff has perfected this appeal from a judgment in favor of the defendant dismissing its suit. We affirm.

The issues on appeal are whether the original petition for executory process sufficiently alleged that the obligation secured by the mortgage was in default and if not whether the absence of such allegation can be asserted as a defense to a subsequent action for a deficiency judgment.

Chrysler, as holder in due course of a note executed by the defendant secured by a chattel mortgage on an automobile, foreclosed via executiva. The automobile was seized and sold after appraisement at a judicial sale. The defendant neither sought to enjoin the sale nor did he appeal the order for seizure and sale.

Thereafter, in opposing this suit for a deficiency judgment the defendant contended the following allegation in the exec-utory process petition was insufficient and defective:

“Petitioner shows payment(s) due on N/A has/have not been paid. This default matured the note in its entirety, as of that date, and the entire balance due, the sum of $4,336.73 is now due and owing, despite amicable demand.”

The trial court concluded that Chrysler had failed to allege the obligation of the defendant under the note was in default. Consequently, the petition did not comply with LSA-C.C.P. Art. 2634 and the executory proceedings could have been defeated either through injunction or appeal. May Co., Inc. v. Heirs of Sumage, 347 So.2d 916 (La.App. 3 Cir. 1977). The defendant’s failure to do so did not preclude his urging this fundamental defect in the executory proceeding in defense of the plaintiff’s subsequent action for a deficiency judgment. The trial judge pointed out that executory process is a harsh remedy and the party using it must strictly comply with the codal requirements for its use. First National Bank of Lafayette v. Gaddis, 250 So.2d 504 (La.App. 3 Cir. 1971); Slidell Building Supply, Inc. v. I.D.S. Mortgage Corporation, 273 So.2d 343 (La.App. 1 Cir. 1972), writ denied, 274 So.2d 708 (La.1973).

One of these requirements, of course, is that the plaintiff must allege and prove by a verified petition or affidavit a breach of a condition of the mortgage which matured the obligation. Commercial Credit Corp. v. Nolan, 385 So.2d 1246 (La.App. 3 Cir. 1980).

Chrysler contends that the language quoted above sufficiently alleges that the obligation was due and owing when suit was filed. We cannot agree. In May Co., Inc. this court concluded the following language was insufficient to allege that the obligation sued on was due and in default:

“. . . That there is a balance due on said note of $2,403.23 with 18% per annum interest from October 7, 1976 to October 7, 1977, and thence with 8% per annum interest from October 7, 1977, until paid. ..
That the said Heirs of Dessie Su-mage have refused to pay the note in spite of amicable demand, and petitioner desires to treat said note as entirely due and exigible...”

And because the petition did not allege that the obligation was in default and there was no proof thereof, the petitioner was not entitled to proceed by executory process.

The allegations in regard to default in the petition for executory process in the instant case are very similar to those in May Co., Inc. and we likewise hold they are insufficient to meet the legal requirement for such a proceeding. There being no allegation in the verified petition of a failure to pay an installment due on the note secured by the mortgage and this fact not having been proved by an affidavit submitted therewith, there was no proof of a breach of such condition of the mortgage that matured the obligation sued for.

Chrysler next contends that even if we find its petition for executory process defective this cannot be used by the defendant to defeat the suit for deficiency judgment, because the defendant did not seek to enjoin the sale or appeal from the order for seizure and sale. Again, we must disagree. Ordinarily, defects of form in executory proceedings cannot be successfully urged in a later action to annul a judicial sale where no injunction was sought and no suspensive appeal was taken. Reed v. Meaux, 292 So.2d 557 (La.1973). However, where the defect is fundamental so as to render the executory process null, it will constitute a valid defense to a subsequent suit for a deficiency judgment. League Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968); Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La.App. 3 Cir. 1975); Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450 (La.App. 1 Cir. 1976).

The failure to properly allege and prove in the executory proceeding a breach of the condition of the mortgage which matured the obligation is in our opinion such a fundamental defect which prohibits the plaintiff from obtaining a deficiency judgment.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of the appeal are taxed against the plaintiff-appellant, Chrysler Credit Corporation.

AFFIRMED.

FORET, J., dissents with written reasons.

FORET, Judge,

dissenting.

I respectfully dissent. I believe that the case sub judice is distinguishable from May Company, Inc. v. Heirs of Sumage, 347 So.2d 916 (La.App. 3 Cir. 1977). Sumage did not mention the word “default”, even though other allegations were made which would indicate that they had defaulted since it was alleged that amicable demand had been made upon them and they refused to pay. However, in the case sub judice the plaintiff does allege that “payments) due . . . had/have not been paid”. Plaintiff, however, does not allege the date on which these payments were due. But, plaintiff goes on to say that, “this default matured the note in its entirety”. It certainly seems to me that this is an allegation of default, and that petitioner, apparently through a clerical error, simply failed to put the due date of the payment(s) in default. As far as I can see, all that this omission affects is the date that the entire note matured. In the absence of such an allegation of maturity date, then the note would simply mature on the date of the filing of the suit for executory process.

But, even though the debtor, either by defense or by a suit to enjoin executory proceedings, could have seized upon this minor defect in the pleadings, he did not do so. It is my opinion, therefore, that this defect or irregularity has been waived by defendant’s inaction, and the defect is not so sacramental as to nullify the executory proceeding. As such, it does not constitute a valid defense to a subsequent suit for a deficiency judgment.

      . Counsel for plaintiff has acknowledged that “N/A” was an abbreviated form of “Not Applicable.”


author: SWIFT, Judge.

text:
    Willie ROBINSON, Plaintiff-Appellee, v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Defendant-Appellant.
    No. 8346.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 11, 1981.

      Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defend-an1>appellant.
    Fuhrer & Flournoy, George A. Flournoy, Alexandria, for plaintiff-appellee.
    Before FORET, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

This workmen’s compensation suit arose from an accident on April 21, 1980, when Willie Robinson and a fellow employee of Payton Plumbing Company dropped a manhole cover from a sewer line on the plaintiff’s left foot.

Dr. Robert R. Sills of Natchitoches examined and xrayed Robinson’s foot the day of the accident and found he had suffered an undisplaced fracture of the proximal phalanx of the left great toe. A short leg cast was applied and the physician prescribed a pain medication. The cast was removed on May 30 and another xray was made. Because of Robinson’s complaint that his foot was still painful, Dr. Sills recommended hot soaking and a loosely fitted shoe. He continued the plaintiff on pain medication and also suggested whirlpool baths. When Robinson was examined on June 30 he requested a release to return to work. No swelling of the toe was noted and the doctor complied. The release was unrestricted.

On July 11, 1980, Robinson filed this suit asserting that he was totally and/or partially disabled. However, on July 15 he went to Dr. Sills’ office again, requesting that his blood pressure and blood sugar content be checked and that he be given a statement that he could go to work. The doctor thought this was related to his obtaining other employment at a local chicken processing plant. Robinson made no mention or complaint of his foot at this examination. Later in that same month the plaintiff asked Dr. Sills to refer him to an orthopedic specialist and he did so without any further examination. Dr. Sills’ opinion was that no further medical treatment for Robinson’s injury was needed after June 30, 1980, and that he was then able to resume his plumbing work. The doctor added that he “might feel some — I don’t think it would be a major pain — I think it would be some minor pain.” However, he acknowledged that pain is a subjective thing varying with each individual.

Dr. Baer I. Rambach, a Shreveport orthopedist, examined the plaintiff at Dr. Sills’ request on July 29. He felt that Robinson still had some residual swelling and discomfort. However, the fracture had healed satisfactorily and the plaintiff could on that date return to his former work without further treatment. He suggested that Robinson wear a closed-over shoe with a firm sole. He testified that he probably would not have released Robinson to return to heavy work which required long standing on June 30 or July 15 if he had been symptomatic at such times.

The plaintiff testified that his foot continued to swell and hurt and this was why he went back to see Dr. Sills on June 30. The trial judge apparently believed him and awarded weekly compensation at the rate stipulated by the parties of $113.33 from the accident through July 29, 1980 (when Dr. Rambach saw plaintiff and found no disability), subject to a credit for benefits previously paid. The judgment also ordered the defendant to pay Dr. Rambach’s bill of $80.00 and awarded penalties and a $2,000.00 attorney’s fee.

Defendant, the employer’s insurer, has appealed this judgment. Plaintiff has answered the appeal seeking an increase in the attorney’s fee.

Appellant first contends the trial court erred in concluding that Willie Robinson was disabled through July 29, 1980. While we must admit that this court may have reached a contrary result had it been the initial trier of fact, we are unable to say that the trial judge was clearly wrong on this factual issue. Consequently, the award of weekly compensation will be affirmed.

We also are unable to agree with appellant’s contention that it is not liable for Dr. Rambach’s bill for the reason that the doctor did not render any treatment to Robinson. Unlike the situation where a plaintiff is sent to a physician by his own attorney simply for evaluation for trial, Robinson was referred by Dr. Sills, the attending physician, to Dr. Rambach presumably for his evaluation and recommendations because of plaintiff’s additional complaints. It is clear that this examination was not made simply in connection with litigation. We believe it was a necessary medical expense for which the employer is liable. Bryant v. New Orleans Public Serv., Inc., 367 So.2d 100 (La.App. 4 Cir. 1979), writ denied 369 So.2d 457 (La.1979). We find, however, that the bill has actually been paid, so the judgment will be amended accordingly.

Appellant next contends that the trial court erred in awarding penalties and a $2,000.00 attorney’s fee. In his written reasons for judgment the judge said he did so because there was no explanation by the defendant why Dr. Sills’ bills of May 30 and June 30 for $30.00 and $10.00, respectively, were not paid until October 25, 1980, two days before the trial, and Dr. Rambach’s bill of July 29 for $80.00 was never paid.

The plaintiff was never billed for such services. However, it was stipulated the bookkeepers of these physicians would testify that their respective offices sent such bills to the employer on the dates mentioned and that Dr. Rambach’s office also sent a similar bill to Payton Plumbing on the 20th days of August, September and October, 1980.

The defendant’s employees testified they mailed a check for $120.00 to the employer to cover these bills within a short time after they were received. However, the record contains no explanation as to why Payton Plumbing Company delayed paying the doctors.

Be that as it may, we find from our review of the record that no demand was ever made by the plaintiff on the employer or its insurer to pay these particular medical expenses. They do not appear in the list of expenses set forth in the petition filed on July 11, 1980. Nor are they listed in plaintiff’s counsel’s letter of August 13, 1980, to defendant’s attorney demanding reimbursement for certain medical and travel expenses amounting to $164.34. In response thereto the defendant’s draft for $252.22 was sent to plaintiff and his attorney by letter of August 21, 1980. Although the plaintiff’s employer was his brother-in-law and his sister handled the compensation matters for the company, there is no indication that he ever inquired about or requested payment of Drs. Sills’ and Rambach’s bills. Nor does the record reflect any specific request or demand by him or his counsel on the defendant insurer for payment of these medical bills.

LSA-R.S. 23:1201.2 provides that an employer’s failure to pay compensation benefits within sixty days after receipt of notice gives rise to imposition of penalties when such failure is arbitrary, capricious or without probable cause. However, LSA-R.S. 22:658, relative to insurers, provides that failure to make such payment within sixty days after receipt of proof of loss and demand therefor is cause for imposing penalties when the failure to pay benefits is arbitrary, capricious or without probable cause. It therefore appears that while simple notice of the medical expense being incurred and untimely arbitrary payment thereof gives rise to imposition of the penalties upon an employer, the statute dealing with insurers requires proof of loss, demand and untimely arbitrary payment to impose penalties on an insurer.

In this case the plaintiff chose to sue only the workmen’s compensation insurer. No demand having been made on the defendant for the benefits that were not timely paid, the plaintiff is not entitled to recover the statutory attorney’s fee in this instance. We also must add that we do not believe the insurer’s actions under these circumstances were arbitrary, capricious or without probable cause.

For the foregoing reasons, the judgment of the district court is amended so as to delete therefrom the order to pay Dr. Ram-bach’s bill of $80.00 and also the award to plaintiff for statutory penalties and the attorney’s fee of $2,000.00. In all other respects the judgment is affirmed. The costs of this appeal are assessed to plaintiff-ap- • pellee.

AMENDED AND AFFIRMED.

      . The record reflects that the latter part of this statement is incorrect as there was filed by consent after trial (and apparently after the judge’s written reasons were rendered) a copy of the cancelled check of Payton Plumbing dated October 10, 1980, made payable to this physician’s clinic for $80.00. The date the check was deposited by the payee is not clear, but it was endorsed by the depositary bank on October 31, 1980.

      . The expense of Dr. Rambach’s examination, of course, had not been incurred as it was made on July 29, 1980.

      . The trial judge noted in his opinion that the plaintiff grossly exaggerated the amount of mileage involved in the travel claim and there is no evidence that plaintiff had actually had the physical therapy for which some travel expenses were demanded.

      . Thus, through error plaintiff was overpaid $87.87.


text:
    Donald S. GRENEAUX, Plaintiff-Appellee, v. CASTLE I, INC., Defendant-Appellant.
    No. 8352.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 11, 1981.

      Mildred Allison Black, Lafayette, for defendant-appellant.
    Mouton, Roy, Carmouche, Bivens & Kraft, Kenneth M. Henke, Lafayette, for plaintiff-appellee.
    Before FORET, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

On February 27, 1978, Donald S. Gre-neaux, plaintiff, contracted with Castle I, Inc., defendant, for the latter to construct a house on Greneaux’s lot which is located on a hill in St. Landry Parish. The contract price was $27,555.00. Construction began in early April, 1978, and the house was substantially completed the following month.

Shortly after construction began the house was found to be unlevel, apparently because the pier supports of its left front corner were sinking in the ground. The contractor attempted on three occasions to correct the problem by jacking up and leveling the house, but was not completely successful. Thereafter, portions of the walls and floors buckled. Also, for some undetermined reason a pipe to the bathroom lavatory burst and remained unchecked, causing extensive water damage to the interior of the house.

Greneaux filed suit against Castle I alleging that the house contained defects which were due to the defendant’s bad workmanship. The plaintiff prayed for the cost of repairs, or alternatively, for a rescission of the contract plus damages.

Castle I denied plaintiff’s allegations and reconvened for recognition of its lien and for the unpaid balance due under the construction contract.

An expert in the field of building construction and home repair was appointed by the court to examine the house and determine the extent of the water damage. He reported that a 26 X 32 feet area of the floor had sustained such damage and to correct same would cost $2,990.00.

After trial the judge found that the house was actually unlevel and this condition was caused by the fault of the defendant-contractor. He concluded the owner was entitled to recover $15,840.00, the amount of plaintiff’s expert’s estimate of the cost of repairs. However, the judge attributed the water damage to the plaintiff’s failure to minimize his damages by timely removing the water from the house and he credited defendant with the cost to repair this and also with the unpaid balance of the contract. Judgment was finally rendered for $9,795.00. The defendant has appealed this award. Plaintiff has neither appealed nor answered the appeal.

Defendant-appellant first asserts that the trial court erred by failing to find that a latent defect existed in the soil, a condition for which the landowner is responsible under the laws and jurisprudence.

Louisiana Civil Code Article 2762 provides:

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

Although defects in the soil are not mentioned therein, the jurisprudence has extended Article 2762 to hold the builder responsible for certain defects of this nature. In Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 (1967), our supreme court stated:

“While undertakers and architects under Article 2762 are held harmless for ‘defects in the soil’, it is latent defects in the soil which are meant. Hence a different result would obtain if the soil defect was apparent to the undertaker. And it could not be otherwise, unless a contractual stipulation governed the question. For the requirements of public order and the obligation implicit in every contract that the work will be done in a good and workmanlike manner would compel us to reject a contention that an undertaker is not responsible for building upon a site which he knows to be defective. In such a case, the barest standards of care would require him to bring the defect to the attention of the owner before proceeding. The owner would then have an opportunity to make the indicated adjustment in the contract to provide against the defective soil condition of which he had no prior knowledge. Matthews v. Rudy, 4 La.App. 226 (1926).
“Not only do we think Article 2762 imposes liability upon an undertaker who builds upon a site he knows to be defective, but we are also of the opinion he is liable for the loss resulting from a structure falling into ruin when he should have known by the exercise of proper judgment that a condition at the site, other than a latent defect in the soil, should be corrected before proceeding with the work, and he fails to advise the owner in time to permit an adjustment. This is an obligation of the undertaker which seems plain to us. Draube v. Rieth, 114 So.2d 879 (La.App.1959). For the contractor has expert knowledge of such things, or should have, and he must bring these things to the attention of the owners, who have no knowledge of such affairs. See Jung v. Gwin, 174 La. 111, 139 So. 774 (1932).”

See also, Unverzagt v. Young Builders, 207 So.2d 405 (La.App. 3 Cir. 1967), affirmed 252 La. 1091, 215 So.2d 823 (1968); and Kuhlman v. Talley, 145 So.2d 101 (La.App. 3 Cir. 1962).

We are in complete accord with the trial judge’s factual conclusion that the house is unlevel. The preponderance of the testimony, expert and lay, indicates that despite three attempts to relevel the house its left front corner remains lower than the others.

The evidence also reflects, and both parties seem to concede in their briefs, that the soil caused the house to sink, which then caused the defects in the house. The principal issue then is whether the soil condition was a latent defect, in which case the plaintiff-landowner must bear the responsibility, or whether it was apparent, whereby the defendant-contractor is responsible.

No soil boring tests were conducted on the property prior to construction, because, according to defendant, the house was not constructed near a river, in or near a swamp, over a fill or in such an area which normally requires that support pilings be driven. The contractor contends that it had no reason to suspect that the character of the soil possessed an insufficient weight bearing capacity for the proposed structure as the land has a natural slope and appears to be well-drained.

The plaintiff testified that he first perceived the house was unlevel on the third or fourth day after the construction began. He said he tried to convince the builder of this, but latter disagreed. Plaintiff contends that the uneven floors then caused the walls to be uneven as they were being built. The builder subsequently did check the house, however, and finding it unlevel on three occasions jacked it up and attempted to stabilize at least one of its pier supports and bring about a level condition.

Lennis Belaire, the main carpenter who worked on the house, testified that Gre-neaux first complained of its unevenness after the roof was on. When Belaire jacked up the house, the piece of lumber on which the jack was sitting went into the ground. He testified, “That ground just sunk on me.”

Cecil D. Trahan, a defense expert witness, testified that contractors generally do not take soil borings of lots on which small houses are to be built. However, if during the course of construction the foundation begins to sink, this “would be a good clue” of a soil defect. When he anticipates there is going to be a foundation problem the owner is informed.

While a builder is not obliged in every instance to test the soil before construction begins, we are convinced that in this case the defendant should have known and informed the plaintiff the soil would not support his house earlier than it did. As heretofore mentioned, the record reflects that the house was unlevel certainly as early as when the walls were being built, apparently because the house was sinking. The defendant should have known then that something was wrong with the soil and should have notified the plaintiff-landowner so that proper adjustments could have been made. Because of its failure to do so, defendant is liable to plaintiff for the cost of remedying the defects in the house. Wurst v. Pruyn, supra.

Appellant suggests that since the plaintiff owned the lot for several years prior to commencement of construction, he is therefore charged with knowledge of its characteristics. We cannot agree. The contractor is considered as having expert knowledge of such things and is obliged to bring them to the attention of the owner who has no knowledge of such affairs. Wetmore v. Blueridge, Inc., 391 So.2d 951 (La.App. 4 Cir. 1980).

It is clear that the burst water pipe did not cause the house to sink initially. The unlevel condition and the defects in the house appeared before the pipe was ruptured and the flooding took place.

Lastly, defendant complains of the trial court’s reliance upon the highly speculative estimate of repairs of plaintiff’s expert which it contends was not substantiated by the evidence. Although this witness did not present much detailed information to support his final conclusion, the trial judge apparently was impressed by his testimony. The defendant did not offer any counter estimates. We are unable to say that the trial court abused its much discretion in making this award and we will not disturb it.

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

AFFIRMED.


text:
    Ronald VENABLE, Plaintiff-Appellee, v. Adeline M. CREDEUR, et als., Defendants-Appellants.
    No. 8355.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 11, 1981.

      Voorhies & Labbe, Marc W. Judice, Ga-ehassin & Capretz, Nicholas Gaehassin, Herman Clause, Lafayette, for defendants-appellants.
    Ronald J. Bertrand of Bertrand & Soi-leau, Rayne, for plaintiff-appellee.
    Before FORET, SWIFT and DOUCET, JJ.
   FORET, Judge.

Ronald Venable (appellee) brought this tort action to recover damages for personal injuries he sustained in an automobile collision. Defendants are Adeline Credeur, the driver of the other car, and her automobile liability insurer, Trinity Universal Insurance Company of Kansas (Trinity). St. Paul Fire & Marine Insurance Company (St. Paul), appellee’s uninsured motorist insurer, was also made a defendant.

St. Paul filed separate third party demands against Adeline Credeur and Trinity.

By stipulation of the parties, the only issue before the trial court was the extent of appellee’s recovery for general damages, which the trial court set at $23,500.00.

Adeline Credeur and Trinity appeal from the trial court’s judgment. The sole issue is whether the trial court abused its “much discretion” in assessing the amount of general damages awarded appellee.

FACTS

Appellee alleges that a 1975 Buick, owned and being operated in a negligent manner by Adeline Credeur, collided with his automobile, causing him serious personal injury. The accident occurred in Lafayette, Louisiana, on August 30, 1978.

St. Paul instituted a third party demand against Adeline Credeur and sought to hold her liable to it for any sums it might be condemned to pay appellee, which would be in excess of the policy limits of her insurer, Trinity. St. Paul also instituted a third party demand against Trinity, alleging that it was acting arbitrarily and capriciously in refusing to settle this case within its policy limits, after appellee had offered to do so. St. Paul further alleged that Trinity was acting in bad faith in refusing to accept this offer and that Trinity was negligently exposing it to liability for a judgment, which might be rendered in excess of Trinity’s policy limits.

The parties entered into a stipulation, prior to trial, in which they agreed to the following: First, that the accident was caused solely by the negligence of Adeline Credeur. Second, that Trinity provided coverage, up to its policy limits of $25,-000.00, and that St. Paul provided coverage, up to its policy limits of $10,000.00, for any judgment rendered in excess of $25,000.00. Third, that appellee had incurred special damages of $1,246.48. Finally, that appel-lee would reduce his demand to $35,000.00 and, in return, would be allowed to enlarge his pleadings to include damages for disability and loss of earning capacity. Thus, the only issue before the trial court was the amount of appellee’s recovery for general damages.

This action was tried and the trial court rendered judgment awarding appellee $23,-500.00 for general damages. The trial court dismissed the third party demands of St. Paul, as its judgment was below Trinity’s policy limits. Adeline Credeur and Trinity (appellants) were granted a suspensive appeal from the trial court’s judgment.

QUANTUM

LSA-C.C. Article 1934(3) provides that, in the assessment of general damages, “much discretion” must be left to the trial judge or jury. Reck v. Stevens, 373 So.2d 498 (La.1979).

The Louisiana Supreme Court, in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), stated, on page 335:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., supra; Bitoun v. Landry, supra; Fox v. State Farm Mutual Automobile Ins. Co., supra; Walker v. Champion, supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry, supra; Spillers v. Montgomery Ward & Company, Inc., supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

Appellants contend that the trial court’s award of $23,500.00 to appellee for general damages is clearly excessive and constitutes an abuse of that court’s “much discretion” in assessing such damages.

We have attached our analysis of the facts and circumstances regarding appellee and his injuries to this opinion, as an appen-' dix. That analysis leads us to the following conclusions: First, appellee experienced no problems with his back prior to the accident. Second, appellee has been experiencing chronic back pain since the accident, and is being prescribed the narcotic “Perco-dan” in an attempt to secure relief from that pain. Third, appellee has experienced a problem with his right leg since the accident, which causes that leg to give way infrequently. Fourth, that the back pain and problem with appellee’s right leg resulted from the accident. Finally, that ap-pellee has suffered a permanent, partial disability of 20% of his body, as a whole, and that 5% to 6% of that disability is attributable to a pre-existing condition, which was aggravated by the accident.

In an appellate review of a trial court’s award for general damages, the initial inquiry must always be directed at whether the award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact’s “much discretion” in the award of damages. Reck v. Stevens, supra.

It is our determination that the trial court’s award of $23,500.00 for general damages does not constitute a clear abuse of that court’s “much discretion”. The cases cited by appellants in their attempt to show the excessiveness of the trial court’s award are not “closely similar” in their facts and circumstances to this case.

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

All costs of this appeal are assessed against defendants-appellants.

AFFIRMED.

APPENDIX

The record contains the following information concerning the appellee and his injuries. Appellee was 19 years old at the time of the accident. He testified that he experienced a stinging sensation in the lower area of his back immediately after the accident. He visited his family physician, Dr. Jacob Segura, Jr., that afternoon, as the stinging sensation in his back was persisting. Dr. Segura is a general practitioner in Rayne, Louisiana. He testified that appel-lee complained of pain in his neck and back and that he prescribed muscle relaxants and pain killers. He also testified that, to his knowledge, appellee had no prior problems with his back. He was of the opinion that the accident was the cause of appellee’s injuries. Dr. Segura sent appellee to Dr. D. F. Overdyke, an orthopedic surgeon practicing in Shreveport, Louisiana, when appellee continued to complain of back pain and headaches. Dr. Segura deferred to the opinion and evaluation of Dr. Overdyke as to appellee’s condition.

Dr. Overdyke examined appellee three times. The first was on November .16,1978, some three months after the accident. It was at this examination that appellee related to Dr. Overdyke the facts surrounding the accident and the injuries he suffered. Dr. Overdyke stated that appellee’s main complaints were pain in his neck and low back. Dr. Overdyke performed a neurological examination which revealed the presence of some pain when appellee tried to move his extremities or torso in certain ways. X-ray studies were performed and were negative for fracture, dislocation, or subluxation. However, these studies did reveal the presence of a condition known as reverse spondylolisthesis. Dr. Overdyke’s diagnosis was that appellee had sustained a cervical and lumbar myoligamentous sprain with some evidence of sciatic root irritation on the right. Appellee was fitted with a surgical support and was advised to do only light work.

Dr. Overdyke next examined appellee on December 28, 1978, and ordered certain tests run on him in an effort to determine the cause of the back pain, which appellee was still complaining of. His conclusion was that appellee was suffering from an extreme right lateral protrusion of an inter-vertebral disc. Dr. Overdyke advised appel-lee that if he could not live with the condition of his back, then surgery was the only alternative. Appellee was advised to take several weeks before making a decision since his condition was not acute at the time.

Dr. Overdyke last examined' appellee on August 27, 1979, approximately one year after the accident and stated that appellee was still complaining of pain in his back. Dr. Overdyke testified that he had no cause to doubt the legitimacy of appellee’s complaints. Tests run on the appellee at this time suggested that some healing had taken place in his back. Dr. Overdyke emphatically stated that he would not perform surgery on appellee unless his present condition deteriorated significantly. It was Dr. Overdyke’s opinion that appellee would continue to have problems with his back in the future, and he assigned a permanent 20% disability to the body as a whole. Also, Dr. Overdyke stated that appellee would have to restrict himself to light work for the rest of his life but could continue to work in his father’s store.

Dr. Overdyke testified, under cross-examination, that reverse spondylolisthesis is a developmental problem, which formed as appellee grew through adolescence. In effect, it was a pre-existing condition. He stated that this alone was enough to restrict appellee to light work for the rest of his life. However, he assigned only 5% to 6% of the 20% permanent disability to the body as a whole as resulting from this pre-exist-ing condition. Dr. Overdyke felt that based on what appellee had told him and his examinations, this pre-existing condition had been aggravated by the accident.

Appellee also made two visits to Dr. John Olivier of Lafayette, Louisiana, at the request of appellants, and one visit to a Dr. Mayer of Opelousas, Louisiana. However, neither of these doctors testified at the trial of this matter.

Appellee testified that he never had any problems with his back prior to the accident. He related a history of chronic back pain since then and stated that his right leg would buckle every now and then. He also related problems of inability to sleep and an inability to perform strenuous tasks, together with the need for frequent rest periods while working. Appellee testified that he is taking the narcotic “Percodan” in an effort to secure relief from the chronic pain. Appellee works in his father’s store and has been able to continue doing so on a somewhat restricted basis.

Elaine Venable, appellee’s wife, testified that she knew of no problems that appellee had with his neck or back during the time that they had been married, but prior to the accident. She stated that she has seen ap-pellee’s right leg give way and that he constantly complains of pain since the accident.

Preston Venable, appellee’s father, testified that he knew of no problems that ap-pellee had with his back or neck prior to the accident. He stated that appellee can do only light work around the store and that appellee complains of pain and fatigue.


author: DOUCET, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. The ESTATE OF Guerry Ward AERTKER, Defendant-Appellee.
    No. 8146.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 14, 1981.

      Bryan Miller and Edward A. Michel, Baton Rouge, for plaintiff-appellant.
    William P. Polk, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

This is an expropriation suit instituted by the State of Louisiana, through the Department of Transportation & Development (Department), against Samuel R. Aertker under the provisions of LSA-R.S. 48:441, et seq. The Department deposited $65,202.00 for the takings. The trial judge awarded $79,515.00 for the land taken, plus $39,-780.00 in severance damages, $1,400.00 in fees for defendant’s expert and $13,500.00 as attorney’s fees. The Department appeals, seeking a reduction in the award.

Prior to the takings, defendant’s property consisted of two rectangular shaped tracts situated in the Tioga community in Ward 10 of Rapides Parish. Both tracts were unimproved and landlocked. One of them, which was designated as Parcel 6-3 by the Department, contained 40.578 acres. The other, which was designated as Parcel 6-6, contained 25.20 acres.

The taking runs diagonally across both tracts, creating four unbalanced remainders. 19.121 acres were taken from Parcel 6-3, leaving a 3.887 acre remainder, which will front on a service road to be constructed by the Department as part of the project giving rise to this suit. The other 17.57 acre remainder in that tract will be landlocked. 12.685 acres were taken from Parcel 6-6, leaving a 3.566 acre remainder which will front on the aforementioned service road and an 8.95 acre remainder that will be landlocked.

Through its specifications of error, the Department has raised the following issues for our consideration:

(1) Whether the trial court erred in awarding $79,515.00 for the takings;
(2) Whether defendant is entitled to severance damages;
(3) Whether the trial court erred in fixing the fee of defendant’s expert at $1,400.00; and
(4) Whether defendant is entitled to attorney’s fees, and if so, whether the award of $13,500.00 is reasonable.

VALUE OF THE TAKINGS

At the trial, the parties presented substantially different evidence regarding the value of the land that was taken. The Department’s experts, Mr. Gene Cope and Mr. James C. McNew, were of the opinion that the highest and best use of the property was for raising timber. They also found that it had some potential for commercial and residential subdivision development. However, they felt that subdivision development was not feasible at the time of the taking because the market was saturated and the property was landlocked. Based on comparable sales of timberland in that area, they concluded that the value of the property prior to the taking was $1,000.00 per acre.

Defendant’s expert, Mr. Hab Monsur, disagreed with those conclusions. He found that despite the access problem and lack of utilities, the highest and best use of the property was for subdivision development. He noted that Parcel 6-6 was only a little more than one hundred feet from an existing paved road in a subdivision adjacent to that tract. After interviewing neighboring landowners, he concluded that obtaining a right-of-way to Parcel 6-6 and a right-of-way from that tract to Parcel 6-3, which was about three hundred feet away, would not have been a serious problem prior to the taking. Based on comparable sales of property suitable for subdivision development, he concluded that prior to the taking the land was valued at $2,500.00 per acre.

The trial judge found Mr. Monsur’s appraisal to be the most realistic and accepted $2,500.00 per acre as the value of the property taken. He therefore awarded $79,-515.00 for the 31.806 acres that were taken. The Department contends that the trial judge erred in relying on Mr. Monsur’s testimony rather than on the testimony of its experts. We disagree.

The weight that the trier of fact accords to expert opinion testimony governs the effect that is given to such testimony. This weight is determined by the expert’s professional qualifications and experience, the facts and studies upon which his opinion is based, and in the case of land appraisals, his familiarity with the locality. State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972); State, Department of Transportation & Development v. Van Willett, 386 So.2d 1023 (La.App. 3rd Cir. 1980).

It is well settled that in the trial of an expropriation suit in which the experts disagree as to the value of the land taken, the trial court is granted much discretion in evaluating and determining the weight to be given to the testimony of each expert witness. The trial court’s findings of fact will not be disturbed on appeal unless they are clearly erroneous. State, Department of Transportation & Development v. Van Willett, supra; Greater Baton Rouge Airport District v. Carrick, 258 So.2d 640 (La.App. 1st Cir. 1972).

After reviewing the testimony of the experts, we find no abuse of discretion in the trial court’s conclusion that Mr. Mon-sur’s testimony was entitled to greater weight than the testimony of the Department’s experts. Of the three experts, Mr. Monsur was clearly the most familiar with the area of the takings. He had had 25 years of experience as a realtor, builder and developer in Central Louisiana. During that time, he developed fifteen commercial and residential subdivisions. His testimony reflects an in-depth knowledge of the growth trends, market patterns and cost factors that affect the development of property in that area. In light of that testimony, we cannot say that the trial judge was clearly wrong in assigning the value that he did to the property that was taken.

SEVERANCE DAMAGES

The trial judge also relied on Mr. Monsur’s testimony in awarding severance damages. Mr. Monsur was of the opinion that the two smaller remainders had suffered no diminution in value because their frontage on the service road made them suitable for rural homesites. He found,' however, that the two larger remainders had suffered a 60% diminution in value as a result of the takings. He concluded that after the takings their highest and best use was for growing timber, because their reduced size, altered shape and increased distance from existing public roads (approximately one-fourth of a mile for both remainders) precluded subdivision development.

Utilizing Mr. Monsur’s estimate of a 60% depreciation, the trial judge found that as a result of the takings the value of the larger remainders was reduced from $2,500.00 per acre to $1,000.00 per acre. He therefore awarded $39,780.00 as severance damages for the 26.52 acres in those remainders.

The Department concedes that the property was suitable only for growing timber after the takings and that as such it was worth $1,000.00 per acre. Its only complaint is with the finding that the highest and best use of the property was changed. For the reasons assigned earlier, we cannot say that the trial judge was clearly wrong in finding that the highest and best use of the property was for subdivision development prior to the takings. Accordingly, we find no error in his award of severance damages.

EXPERT WITNESS FEES

In awarding $1,400.00 in fees for defendant’s expert, the trial court allowed recovery for the following amounts which Mr. Monsur charged defendant: $1,000.00 for his appraisal; $200.00 for a pre-trial conference with defendant’s attorney; and $200.00 for his court appearance. The Department contends that the trial court erred in awarding $1,000.00 for the appraisal and in awarding any amount for the pre-trial conference.

The Department correctly argues that the agreement between a landowner and his expert witness concerning the expert’s fee is not the criterion to be used by the trial court in fixing such fees. State, Department of Transportation & Development v. Gagnard, 391 So.2d 91 (La.App. 3rd Cir. 1980), writ denied 396 So.2d 928 (La.1981). In this ease, however, we find no abuse of discretion in the trial court’s allowance of $1,000.00 for the preparatory work done by Mr. Monsur. In view of the time and skill reflected in his written report and the usefulness of his testimony, we believe that the award is reasonable.

With regard to the Department’s second contention, it is well established that an expert’s charges for pre-trial consultations with the landowner’s attorney are not compensable. Louisiana Interstate Gas Corporation v. McIntire, 349 So.2d 1331 (La.App. 1st Cir. 1977); State, Department of Highways v. Manning, 322 So.2d 362 (La.App. 2nd Cir. 1975); State, Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App. 2nd Cir. 1975), writ denied 318 So.2d 60 (La.1975). We will therefore amend the award to delete the $200.00 allowed for the pre-trial conference.

ATTORNEY’S FEES

The trial judge arrived at the award of $13,500.00 for attorney’s fees by rounding off 25% of the difference between the amount deposited by the Department, $65,-202.00, and the total amount awarded for the takings and severance damages, $119,-295.00. The Department contends that the award is excessive and should be reduced.

LSA-R.S. 48:453(E) reads as follows:

“Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment.' Such attorney fees in no event shall exceed 25% of the difference in the registry of the court.”

This provision gives the trial court discretion in making an award of attorney’s fees. Such awards must be reasonable, however, and they may not exceed 25% of the excess awarded.

The Department argues that although the trial court’s award complies with the 25% ceiling imposed by the legislature, it nevertheless is not a reasonable award. We are inclined to agree with the Department’s contention that the award is high. However, we do not find that it is so excessive so as to constitute an abuse of the trial court’s considerable discretion in these matters. The award will therefore be affirmed.

For the above and foregoing reasons, the judgment of the trial court is amended to reduce the fee of the expert witness, Hab Monsur, to the sum of $1,200.00. In all other respects, the judgment is affirmed. The costs of this appeal are taxed to the State of Louisiana, Department of Transportation & Development, in the sum of $376.75.

AMENDED AND AFFIRMED.

      . The suit was originally brought against the Estate of Guerry Ward Aertker, as the caption reflects. Samuel R. Aertker, the record owner of the subject property at the time of the takings, was later substituted as the defendant.


text:
    Yvonne HALEY v. STATE of Mississippi.
    No. 52745.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Mike Smith, McComb, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, David W. Hall, Asst. Dist. Atty., Natchez, for ap-pellee.
   Appeal from Circuit Court, Adams County; Edwin E. Benoist, Jr., Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM, BOWLING and HAWKINS, JJ., concurring.


text:
    MISSISSIPPI ACTION FOR COMMUNITY EDUCATION v. Ward MONTGOMERY—Judgment Debtor Central Mississippi, Inc.—Judgment Creditor.
    No. 52899.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Walls, Buck & Irving, Robert E. Buck, Greenville, for appellant.
    Donald W. Bond, Winona, for appellee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice, for the Court:

Mississippi Action for Community Education (MACE) appeals from an Order of the Circuit Court of Holmes County, dismissing its “Declaration of Garnishee” filed August 28,1980, in which declaration MACE prayed for the suspension of the execution of a writ of garnishment served on the First National Bank of Greenville, Mississippi, on a judgment against MACE.

On October 6, 1978, Central Mississippi, Inc. (CMI), recovered a $3,821.13 default judgment against Ward Montgomery. On December 10, 1979, CMI had a writ of garnishment issued and personally served on MACE to collect its judgment against Ward Montgomery, who worked for MACE. The garnishment writ was made returnable to the April, 1980, term of court, which term would begin April 7, 1980.

When MACE failed to answer the writ of garnishment, a default judgment was entered against MACE, as garnishee, on April 9, 1980, in favor of CMI for $4,598.75. On June 30, 1980, CMI filed a suggestion for writ of garnishment against First National Bank of Greenville. A writ of garnishment was accordingly issued against FNB on the judgment against MACE which, with interest and court costs, amounted to $4,807.70. The writ of garnishment was made returnable to the October, 1980, term of court which would begin on October 6,1980. The writ was personally served on FNB on July 1, 1980. The bank answered on July 11, 1980, that it had a checking account of MACE and it paid into court $4,807.70. On July 14, 1980, the Circuit Clerk of Holmes County disbursed the proceeds paid into court to CMI, and the judgment against MACE was marked “Satisfied” by the Circuit Clerk on August 29, 1980.

On August 28,1980, MACE filed its “Declaration of Garnishee” in the Holmes County Circuit Court, praying for an order “suspending the execution of Central Mississippi, Inc., judgment creditor against the checking account of garnishee and releasing the proceeds of said account heretofore paid into the Court.” MACE further prayed “for an order limiting its liability herein to $350.00, the total sum of wages owed or that became owed to judgment debtor [Ward Montgomery] after the writ of garnishment herein was served on garnishee that were not exempt.”

In its Order of November 5,1980, dismissing the declaration of MACE, the Court said:

“In the opinion of this Court such action, on the part of Mississippi Action for Community Education comes too late, as Judgment against it became final in April. The Garnishment had against First National Bank, Greenville, Mississippi, which paid the proceeds of the Judgment into court, and the disbursement of these monies was accomplished in July, almost two months prior to Declaration of MACE.
“ACCORDINGLY, the relief requested is denied and the Declaration to suspend Execution is dismissed.”

MACE assigns as error:

1. The lower court erred in dismissing the Declaration of Appellant and Denying the Relief Sought.
2. The Declaration of Garnishee was filed in a timely fashion.

MCA section 11-35-31 (1972) provides:

“If a garnishee, personally summoned, shall fail to answer as required by law, or if a scire facias on a judgment nisi be executed on him, and he fail to show cause for vacating it, the court shall enter a judgment against him for the amount of plaintiff’s demand; and execution shall issue thereon, provided, however, that the garnishee may suspend the execution by filing a sworn declaration in said court showing the property and effects in his possession belonging to the debtor, and his indebtedness to the debt- or, if any, or showing that there be none, if that be true; and by such act and upon a hearing thereon, the garnishee shall limit his liability to the extent of such property and effects in his hands, and such indebtedness due by him to the debt- or, plus court costs and reasonable attor ney’s fees of the judgment creditor in said garnishment action.” [Emphasis • added].

Since no answer was filed by MACE on or before the return day (April 7, 1980), of the writ of garnishment, the court, in accordance with the mandatory requirement of § 11-35-31 entered judgment on April 9, 1980, against MACE for the amount of CMI’s demand.

The judgment against MACE became final when the April 1980 term of court ended, and the Circuit Court was powerless to set aside the judgment against MACE absent a showing of fraud, accident or mistake. Martin v. Armstrong, 350 So.2d 1353 (Miss. 1977), and Walker George v. Standard Oil Co., 239 Miss. 712, 124 So.2d 858 (1960).

More than 140 days elapsed between the entering of the default judgment against MACE and the filing of MACE’s declaration in the Circuit Court. More than 100 days elapsed between the end of the April, 1980, term of court and the filing of MACE’s declaration on August 28, 1980.

FNB of Greenville, as it had a right to do, did not wait until the return day (the October, 1980, term of court) to file its answer as garnishee, but filed it on July 11, 1980, after being served on July 1, 1980. Columbus Insurance and Banking Company v. Hirsh, et al., 61 Miss. 74 (1883); Hussey v. Hussey, et al., 224 Miss. 856, 82 So.2d 442 (1955); MCA § 11-35-27 (1972).

We agree with the Circuit Court that the declaration of MACE was filed too late. In harmonizing the apparently conflicting provisions of section 11-35-31, we interpret this language of the statute:

“[Pjrovided, however, that the garnishee may suspend the execution by filing a sworn declaration in said court showing the property and effects in his possession belonging to the debtor, and his indebtedness to the debtor, if any, or showing that there be none, if that be true; and by such act and upon a hearing thereon, the garnishee shall limit his liability to the extent of such property and effects in his hands, and such indebtedness due by him to the debtor, plus court costs and reasonable attorney’s fees of the judgment creditor in said garnishment action.”

to mean that MACE, in order to suspend the execution of the writ of garnishment, must file a sworn declaration in the court before the garnishee (FNB) has answered and paid into court the funds caught by the garnishment. In other words, MACE can not wait to file a declaration to suspend the execution until the execution has been completed, the answer filed, the funds paid into Court and disbursed by the Clerk to the judgment creditor.

In the case at bar, the writ of garnishment was issued on June 30, 1980, personally served on FNB of Greenville on July 1, 1980, promptly answered by it, the funds paid into court on July 11, 1980, and the funds disbursed by the Circuit Clerk on July 14, 1980. The declaration was not filed until August 28, 1980, almost 2 months after the issuance of the writ of garnishment, and 1 month and 2 weeks after the funds had been completely disbursed.

The court was correct in ruling that the declaration was filed too late and in dismissing the declaration of MACE to suspend execution of the writ of garnishment.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: PATTERSON, Chief Justice,

text:
    James Benson BIRINDELLI v. Donald Michael EGELSTON and Lynette Joyce Egelston.
    No. 52936.
    Supreme Court of Mississippi.
    Oct. 7, 1981.

      Eaton, Cottrell, Galloway & Lang, John Edgar Johnson, III, Ann Bowden-Hollis, Gulfport, for appellant.
    Jim W. Rose, Gulfport, for appellee.
    Before PATTERSON, C. J„ and SUGG and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

Donald Michael Egelston and Lynette Joyce Egelston initially filed a petition for adoption of Brooke Kay Birindelli, Tyler Anne Birindelli, James Michael Birindelli and David Benson Birindelli in the Chancery Court of the Second Judicial District of Harrison County. James Benson Birindelli, a non-resident, was allegedly served with process by mail and publication.

Two days before the final decree of adoption, the lower court granted petitioner’s motion to transfer the cause to the Chancery Court of the First Judicial District of Harrison County.

Mr. Birindelli made no appearance and the final decree of adoption was entered on May 16, 1980, based on abandonment by the father. Birindelli thereafter petitioned to set aside the adoption decree, and a hearing was held on the motion. The lower court denied the petition to set aside the adoption decree.

Aggrieved, Birindelli appeals from the dismissal, assigning six errors. We are of the opinion that we need address only the assignment concerning the jurisdiction of the court because it is dispositive of the suit.

The threshold issue is whether or not the trial court had jurisdiction of James Benson Birindelli, the adoptive father of Brooke and the natural father of Tyler Anne, James Michael, and David Benson. The petition was mistakenly filed in the second judicial district and process was issued from and returnable to the second judicial district. Even though the cause was transferred prior to the rendition of the final adoption decree, there is no evidence that process was ever made returnable to the proper district.

It is the well settled rule that service of process on a non-resident defendant is jurisdictional requiring strict compliance with statutory procedures. Mosby v. Gandy, 375 So.2d 1024 (Miss.1979). We are of the opinion the failure to make service of process returnable to the proper district rendered service of process fatally defective. This being so, jurisdiction was lacking; and the final adoption decree is therefore void. Failure to make process returnable to the appropriate district in a county is a jurisdictional defect, for we held in Rogers v. State, 266 So.2d 10, 16 (Miss.1972), that “when two judicial districts are created in a county, the effect is the same for jurisdictional purposes as if they were two counties.” Citing with approval Isabel v. State, 101 Miss. 371, 58 So.1 (1912); Passons v. State, 208 Miss. 545, 45 So.2d 131 (1950).

We also are of the opinion that even if process had been returnable to the proper district, the adoption decree would still be void for lack of jurisdiction because Birindelli testified without contradiction that he did not receive notice of the adoption proceedings. His testimony overcomes the presumption that process was proper. Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780 (1937). Further, there is no evidence the court clerk noted on the docket the mailing of summons to Birindelli as required by MCA § 13-3-21 (1972). Although not jurisdictional, the clerk’s compliance with § 13-3-21 is a matter of high importance. Ponder v. Martin, 119 Miss. 156, 80 So. 388 (1919). This coupled with Birindelli’s testimony he did not receive statutory notice of the adoption proceeding renders the adoption decree void.

Since the jurisdictional issue is dispositive of the appeal, we do not reach the merits of appellant’s remaining assertions. We believe the adoption decree to be void; and since Birindelli has made his appearance in court, we reverse and remand for a hearing on the merits.

REVERSED AND REMANDED FOR A HEARING ON THE MERITS.

SMITH, and ROBERTSON, P. JJ., SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    William C. ROWELL v. Irene ROWELL.
    No. 52856.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Barnett, Montgomery, McClintock & Cunningham, G. William Palmer, Jackson, for appellant.
    Johnston, Adams & Younger, Jerry T. Johnson, Brandon, for appellee.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

REVERSED AND BILL OF COMPLAINT DISMISSED WITHOUT PREJUDICE.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and HAWKINS, JJ., concur.


text:
    Frank TOWNSEND v. STATE of Mississippi.
    No. 52885.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Beach, Luckett, Ross & Gunter, Stephen L. Beach, James J. Fougerousse, Jackson, for appellant.

Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, LEE and BOWLING, JJ., concur.


text:
    Patrick F. BROWNING, Jr. v. Donald F. FIELDS.
    No. 52915.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Bryan, Nelson, Allen, Schroeder & Cobb, Gail A. Crowell, Gulfport, for appellant.
    John C. Johnson, Gulfport, for appellee.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, LEE and BOWLING, JJ., concur.


text:
    CITY OF MOUND BAYOU v. Alma Ernestine WALKER.
    No. 52897.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Walls, Buck & Irving, Tyree Irving, Greenville, for appellant.
    James H. Walker, Cleveland, for appellee.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, LEE and BOWLING, JJ., concur.


text:
    Edwin H. PILMER, Jr. v. Juanita L. PILMER.
    No. 52700.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    McDade & Edwards, Helen J. McDade, Lowry C. Edwards, DeKalb, for appellant.
    No brief filed, on behalf of appellee.
   Appeal from Chancery Court, Kemper County; Edward C. Prisock, Chancellor.

Before SMITH, P. J., and BOWLING and HAWKINS, JJ.

REVERSED AND DECREE HERE DENYING SEPARATE MAINTENANCE; REVERSED AND DECREE HERE GRANTING DIVORCE TO APPELLANT; AND AFFIRMED AS TO ALLOWANCE FOR EDUCATION OF DAUGHTER.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Armand WEILBACHER, d/b/a Weilbacher Realty Co. v. LaLINDA, INCORPORATED, a Mississippi Corporation and Union Oil Company of California, etc.
    No. 52896.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Floyd J. Logan, Hopkins & Logan, Gulf-port, for appellant.
    Charles K. Pringle, Robert W. Smith, Biloxi, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    PRUETT CORPORATION d/b/a Mr. Transmission and Rachel Pruett and John Pruett, Individually v. William C. CALVERT.
    No. 52784.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Powell & Thrash, Gary D. Thrash, Jackson, for appellant.
    James G. McIntyre, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

Before SMITH, P. J., and BOWLING and HAWKINS, JJ.

Reversed and Judgment Here for Appellant.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concur.