text:
    HUFFMAN TECHNICAL DRILLING, INC. v. SMITH, et al. CAYMAN EXPLORATION CORPORATION v. EMERALD DIRECTIONAL DRILLING, CO., INC., et al.
    Nos. 5-249, 5-250.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Armentor & Wattigny, Gerard B. Wattig-ny, New Iberia, for plaintiffs-appellants.
    Koury & Koury, Joseph A. Koury, Lafayette, for defendants-appellees.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is an appeal from a concursus proceeding filed by Cayman Exploration Corporation impleading Emerald Directional Drilling Company, Inc., Huffman Technical Drilling, Inc., Forrest Wayne Smith, and John Huffman. Cayman deposited $41,-742.50, which included $2,000.00 in attorney’s fees, in the registry of the court after liens were filed by the competing interests of Forrest Wayne Smith d/b/a Emerald Directional Drilling and John Huffman d/b/a Huffman Technical Drilling, Inc. Directional Drilling, Inc. intervened in the matter for the amount of $3,148.84. The trial court dispersed the concursus funds as follows:

(1) Huffman Technical Drilling, Inc. in the amount of $3,726.00;

(2) Directional Drilling, Inc. on its intervention in the amount of $3,148.84;

(3) Emerald Directional Drilling awarding it the balance of the original deposit made by Cayman which included the $2,000.00 in attorney’s fees;

(4) Interest was awarded proportionately on all sums from the time the amount deposited in the registry of the court began to earn interest;

(5) Defendants and intervenor were to bear costs proportionately.

The funds dispersed to Directional Drilling, Inc. are not contested by any of the parties. John Huffman appeals from the allocation of the amounts to Huffman Technical Drilling, Inc. and Emerald Directional Drilling, Inc. contending that there was a business agreement between Forrest Smith and himself to do directional drilling on the Cayman well, and, therefore, the amounts dispersed in the concursus proceedings were incorrect. We reverse and remand.

Two issues are presented by this controversy:

(1) Whether an agreement was reached to form a business?

(2) If an agreement was reached, what is the nature of the business relationship formed?

In late October 1978 Forrest Smith and John Huffman began discussions concerning the formation of a directional drilling corporation known as Emerald Directional Drilling, Inc. They visited an attorney who was instructed to form and file articles of incorporation. In his depositional testimony, this attorney stated there was to be a one-half and one-half distribution of stock between the two men. In the meantime, Forrest Smith’s engineering firm, Emerald Engineering, Inc., obtained a contract with Cayman Exploration for the drilling of a well in St. James Parish. This engineering company was in charge of the entire drilling operation; however, directional drilling for the job was to be done by Emerald Directional Drilling.

In early November Mr. Smith and Mr. Huffman flew to Los Angeles to discuss the Cayman project with Cayman executives. They made a trip to Houston to speak with Jim Graham who was Cayman’s vice president of engineering and operation and also Cayman’s representative to oversee the entire drilling operation at the site in St. James Parish. In his deposition Mr. Graham testified Huffman was introduced to him prior to the drilling as the person to take care of all of the directional drilling on the Cayman job. Graham’s impression was that Huffman had the expertise and the tools to perform the directional drilling and that Huffman and Smith were partners. He remembered that Huffman was introduced to him as Smith’s partner and that Smith and Huffman were forming a company, Emerald Directional Drilling, Inc. At that time, Mr. Graham was given a card with John Huffman’s name on it as president of Emerald Directional Drilling. According to Graham, Emerald Engineering, Inc. was the consultant engineering firm for the Cayman job. Graham testified that Emerald Directional Drilling was employed through Emerald Engineering Company and not directly by Cayman. Graham testified that Huffman visited him in Houston a second time in order to finalize a contract with a drilling contracting firm.

In early November Huffman withdrew $5,000.00 from his company, Huffman Technical Co., and opened a checking account under the name of Emerald Directional Drilling. A check cashing card was signed by Smith, Smith’s wife, Huffman, and Huffman’s wife; however, the bank never received the card.

Drilling on the Cayman well began in November. Initially, John Huffman supervised the directional drilling. However, in early December Huffman had a problem with an infected hand which required hospitalization and caused him to be away from the job site. It seems about this time the two men had a disagreement. Huffman testified he still supervised the operations from his hospital room and later went to the job site on several occasions. Smith, on the other hand, testified that after a disagreement between himself and Huffman in late November, Smith “fired” Huffman from the Cayman job. He testified that Huffman did no more work after the end of November. There is conflicting testimony as to the work done by Huffman in December. Huffman testified he continued to supervise the well throughout December. He became aware of a change in the relationship between himself and Smith in mid-December but continued to work on the job out of a sense of duty to fulfill his obligation to Cayman. He made several trips out to the job, and on one such trip in late December he spoke to Mr. Graham who had flown in to inspect the job.

Smith negates Huffman’s participation in the drilling after the end of November. He urged at trial that Huffman’s services were not longer needed after the end of November since Smith felt he was capable of supervising the entire drilling along with the participation of another employee, Lee Du-bois.

Huffman testified that he withdrew a salary of $3,500.00 from the $5,000.00 in the account of Emerald Directional Drilling. He also withdrew from this account sums for his expenses for travel, hotels, and meals accumulated during the Cayman project.

Smith and Huffman also dispute the use of Huffman’s tools on the Cayman job. It was originally agreed that Huffman’s tools would be used for directional drilling. It appears from the record Huffman’s tools were used during most of the drilling. Huffman contended that he attempted to remove unused tools which were on the job site, but Emerald Engineering employees, obeying instructions of Smith, would not allow this. Smith testified he did not limit Huffman in removing these tools, and, in fact, ordered the removal himself. However, Huffman’s testimony is buttressed by that of Graham who stated that during his visit in late December he found unused tools on the job site and inquired as to their presence. He was told by employees that Smith had not allowed Huffman to remove these tools. Graham at that time ordered the removal of the tools in question.

The directional drilling on the Cayman well was completed in late December. In early January, Forrest Smith incorporated Emerald Directional Drilling alone. Thereafter, a dispute arose between Smith and Cayman concerning the reimbursement for services performed, and the newly formed Emerald Directional Drilling, Inc. filed a lien against Cayman. Shortly thereafter John Huffman filed two liens against Cayman. One lien was against Cayman by John Huffman d/b/a Emerald Directional Drilling and/or Huffman and Smith as partners of Emerald Directional Drilling. The second lien was on behalf of Huffman as president of Huffman Technical Drilling, Inc. In response to these liens, Cayman filed this concursus suit in which Directional Drilling, Inc. intervened. Huffman Technical Drilling, Inc. also filed a writ of attachment against Forrest Smith’s interest in the concursus proceeding alleging that Smith was a non-resident. Huffman in this suit alleged that a loan of $5,000.00 was made to Emerald Directional Drilling, Inc. for which Huffman requested reimbursement from Smith’s proceeds in the concur-sus proceeding. This attachment suit was consolidated with the concursus proceeding for trial on the merits.

After trial on the merits, the trial court ruled in favor of Cayman discharging the corporation from any further responsibility. It awarded the bulk of the deposit to Emerald Directional Drilling, Inc. and a small amount to Huffman Technical Drilling, Inc. for tool rentals. Huffman appeals this disbursement.

It is clear these two men did agree to form a business together. While short lived, a relationship existed on one project, the directional drilling on the Cayman well. We characterize the nature of this business relationship as a joint venture because a joint venture is an undertaking by two or more persons to combine their property, capital, labor, or skill in any combination of these elements in the conduct of a particular line of trade or general business for joint profits, thus creating the status of a partnership, although the facts may not show a formal partnership. See, Ault & Wiborg Co. of Canada v. Carson Carbon Co., 160 So. 298, 300 (La.1935); Frazell v. United States, 213 F.Supp. 457, 462 (W.D.La.1963) revd on other grounds 335 Fd 487 (5th Cir.1964). Thus, joint ventures are likened to partnerships and are governed generally by the same rules. Frazell v. United States, supra. The following partnership rules are applicable to our determination. Louisiana Civil Code article 2801 applicable in 1978 defined a partnership as a “... synallagmatic and commutative contract made between two or more persons for the mutual participation in the profits which may accrue from property, credit, skill or industry, furnished in determined proportions by the parties.” Both a joint venture and partnerships stem from a contract, express or implied, between the parties who must, as between themselves, have intended to form a partnership or joint venture. See Frazell, supra. Essential to the relationship of a joint venture or partnership is a sharing in the profits of the enterprise as well as a sharing of control or management of the affairs of the enterprise. Frazell, supra. Importantly, as noted in Frazell, “[t]he ultimate criterion is whether the parties actually intended to enter into a joint venture and, in arriving at this determination, there are no hard and fast rules fixing the legal requisites. Each case must be considered sui generis ...” Frazell, 213 F.Supp. 457, 463.

Although there were no reasons for judgment, the trial court’s judgment allocating only tool rental to John Huffman and the remaining amount to Emerald Directional Drilling indicates that it found no partnership, joint venture, or any other kind of business relationship between Mr. Smith and Mr. Huffman. We find this clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). The record indicates that there was an agreement between Forrest Smith and John Huffman. We find that Smith and Huffman did form a directional drilling company. This company’s first job was the directional drilling on the Cayman well for which Smith’s Emerald Engineering firm was the engineering consultant firm.

Smith contends that this company was never formed with Huffman, that he was merely testing Huffman to see if he wanted to later associate with Huffman, and that Huffman was an employee of Emerald Engineering, Inc. which he terminated after only a few days’ work on the Cayman job. The record reflects that Huffman was considered from the start as more than a mere employee and that a business arrangement was formed in November of 1978 whether considered as a joint venture, an association, or a partnership. Both parties had unique attributes to bring to the “business.” Forrest Smith had the Cayman job through his engineering firm, Emerald Engineering, Inc. However, Smith had no particular expertise in directional drilling; this John Huffman offered. The facts indicate that not only did Huffman supervise the directional drilling on the Cayman job, but he also provided important business connections with other tool rental companies and supplied through his Huffman Technical Corporation, a needed franchise that allowed the rental of equipment for the Cayman job. Huffman put $5,000.00 in a banking account and designated the account as Emerald Directional Drilling. A signature card was signed by all parties although never returned to the bank. Smith’s own testimony is that he could not initially put up $5,000.00 because he lacked cash resources but had intended to do so as soon as the monies from the Cayman project were realized. A mere employee would not open a checking account under another name and draw his salary from it.

Other facts also support the finding of a business arrangement. Huffman was introduced to Cayman’s executives in Los Ange-les and the job supervisor, Graham, in Houston, as Smith’s partner for directional drilling work. Moreover, Huffman visited Houston on two occasions to discuss the Cayman well. Bill Graham, Cayman’s vice president of engineering and operation and Cayman’s supervisor for the whole drilling operation, testified that he understood Huffman and Smith to be partners and that Huffman was to supervise the directional drilling on the Cayman well. Smith and Huffman had business cards printed with John Huffman as president of the company, Emerald Directional Drilling, Inc., which were presented to Graham in late October. Huffman also invoiced Emerald Engineering, Inc. for the entire job including rental on his tools and other companies’ tools as well as his salary. This is consistent with Graham’s testimony that Emerald Directional Drilling was working under Emerald Engineering, Inc. and not Cayman. Only when Huffman did not receive funds from Emerald Engineering, Inc. did he invoice Cayman directly. Importantly, Huffman was never paid as an employee of Emerald Engineering. He was, in fact, not paid at all for his services. If an employee of Smith, Smith would have at least paid him for the days he worked in November on the Cayman well before his so called “termination.” Other facts which also indicate that Huffman was not an employee of Smith’s but Smith’s equal (in this new business) are Huffman’s contribution of the Huffman Technical Drilling’s franchise in order for Emerald Directional Drilling to rent Dyna-Drill tools and finally Huffman’s paying for Dyna-Drill rental on the Cayman job. The above facts indicate that there was a mutual agreement; there was a disagreement, and their association was short-lived. We find they in fact agreed to do the Cayman job together; therefore, we must recognize Huffman’s participation in this business endeavor; we find this to be on a 50-50 basis.

For the reasons assigned we reverse and remand for the specific purpose of determining each participant’s expenses and contributions, and after determining the above, distributing the profits accordingly.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: GRISBAUM, Judge.

license: Public Domain

text:
    Caroline Jeanette Brister, Wife of/and Anthony Herman GERARD, for Themselves and on Behalf of Their Minor Children Sharon, Douglas, Patrick, Paige, and Sandra v. The PARISH OF JEFFERSON, State of Louisiana; the Sheriff, Parish of Jefferson, State of Louisiana; Firemen’s Fund Insurance Company, Their Insurer; Robert Kerry, and Deputy Sheriff Sergeant J. Koehler.
    No. 5-145.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Jan. 17, 1983.

      Hugh G. Oliver, Westwego, for plaintiffs-appellants.
    Cronvich, Wambsgans & Michalczyk, A. Wes Wambsgans, Metairie, Warren E. Mou-ledoux, Jr., Asst. Parish Atty., Gretna, Dillon & Cambre, Gerard M. Dillon, New Orleans, Ronald C. Davis, Asst. Atty. Gen., New Orleans, for defendants-appellees.
    Before SAMUEL, KLIEBERT and GRISBAUM, JJ.
   GRISBAUM, Judge.

This personal injury suit involves the alleged torts of false imprisonment, battery, and invasion of privacy. Plaintiffs, a husband and wife, individually and on behalf of their minor children bring suit to recover damages from a police officer, the Sheriff, Parish of Jefferson, a Jefferson Parish dog pound officer, the Parish of Jefferson, and its insurer for the alleged intentional torts of battery and false imprisonment and for an alleged illegal search of their home. Plaintiffs appeal from the trial court’s dismissal of plaintiffs’ cause against the dog pound officer and the Parish of Jefferson and its insurer after the close of plaintiffs’ case and from the judgment against the plaintiffs and in favor of the defendants, the police officer and the Sheriff, Parish of Jefferson, rendered after trial on the merits. We affirm in part and reverse in part.

In February of 1978 plaintiffs, Anthony Gerald and his wife, owned a dog, Ding-a-ling. Jefferson Parish dog pound officer, Mr. Robert Kerry, had received numerous complaints from the neighbors that this animal was allowed to roam the streets of the neighborhood. Officer Kerry himself had observed the dog loose on more than one occasion. He also believed that the dog was unlicensed and unvaccinated. On February 23,1978 defendant Kerry gave Mr. Gerald a citation for having an unlicensed, untagged, and unleashed dog. Several days later, on Sunday, February 26,1978, Mr. Kerry testified that as he was checking the neighborhood for roaming animals, he again observed plaintiffs’ dog loose and stopped by plaintiffs’ home at approximately 8 a.m. to check whether plaintiffs had obtained the correct papers on the dog. The following episode ensued. Defendant Kerry was met by one of the Gerald children who asked him to return later because his parents were not awake. Because he was given what he felt to be unresponsive and evasive answers to his request to see the dog’s vaccination papers, Kerry called the Jefferson Parish Sheriff’s Office for assistance. Defendant Sergeant Koehler responded.

Both Koehler and Kerry went to the Gerald home. According to Koehler and Kerry, when Mr. Gerald came to the door he began yelling at them. Sergeant Koehler testified that he explained the Jefferson Parish Animal Control Ordinance (No. 12146) to Mr. Gerald; however, Mr. Gerald insisted that the dog was not in his possession and that his father-in-law was having her vaccinated. At trial Mr. Gerald testified that he lied about Ding-a-ling and that the dog was actually hidden in the bathroom. Mr. Gerald was advised that if he did not produce the dog or his papers of vaccination, Sergeant Koehler would arrest him. A heated argument followed.

The parties have somewhat different versions of what transpired, but the essential events are agreed upon by all parties. Sergeant Koehler told Mr. Gerald he was under arrest and attempted to effectuate the arrest by taking Gerald’s arm. According to Kerry, Mr. Gerald pushed Sergeant Koehler away and attempted to slam the door on Sergeant Koehler. Koehler persisted in his efforts to take Mr. Gerald into custody by grabbing his waistband, but Mr. Gerald retreated into his house with Koehler holding on to his waistband. Again, Sergeant Koehler told Gerald he was under arrest and attempted to lead him back to the front door, but Gerald brushed his hand off of his pants. Sergeant Koehler attempted several times to use his PR24 stick to place Mr. Gerald’s arm behind his back. However, due to Mr. Gerald’s size and strength, Koeh-ler was not able to gain control of Gerald using this method. The officer attempted again to grab Mr. Gerald’s waistband, but the waistband broke, and Gerald’s pants fell. Sergeant Koehler testified that Mr. Gerald reached down to pick up his pants and arose threateningly. Fearful that Mr. Gerald would strike him, Sergeant Koehler struck Mr. Gerald once with the PR24 stick. Sergeant Koehler also testified that he struck Mrs. Gerald inadvertently in the stomach as she was holding his arm. Again the police officer tried to lead Mr. Gerald to the front door but was unable to do so. Due to his inability to control Gerald, Sergeant Koehler left the Gerald home and called for additional police assistance.

Mr. Gerald’s version of the episode is that as soon as he came to the door Sergeant Koehler started arguing with him. According to Gerald, Sergeant Koehler asked him where the dog was and stepped across the threshold. Immediately, Gerald asked, “What are you doing?” When Gerald asked if he was being arrested because the dog was not there, Gerald was told that he was under arrest. Gerald’s reply was that the officer could not arrest him because he had no warrant. When he moved away from the police officer, the officer followed him into the house. At the hallway Sergeant Koehler grabbed his pants; the catch broke, and as he reached down to pick them up, Officer Koehler struck him across the head with a billy club. Gerald and his wife, as well as two of his children, testified that Sergeant Koehler then turned and poked Mrs. Gerald in the stomach and ran out the front door.

Gerald testified that when he did not come out when ordered out of the house over a loudspeaker, the police kicked his back door down and placed him and his wife under arrest. They were escorted out of the house and taken away. The dog catcher then entered the Gerald home, found Ding-a-ling near a laundry room, seized her in the presence of at least one of the Gerald children, and brought her to the animal control center.

ISSUES

The issues are as follows:

1) Whether plaintiffs, husband and wife, are entitled to damages for the intentional tort of false imprisonment?

2) Whether plaintiffs, husband and wife, are entitled to damages for the intentional tort of battery?

3) Whether plaintiffs are entitled to damages for invasion of privacy?

FALSE ARREST AND IMPRISONMENT

False arrest and imprisonment occur when one arrests and restrains another against his will without color of legal authority. Kyle v. City of New Orleans, 353 So.2d 969, 971 (La.1977); Barfield v. Marron, 222 La. 210, 62 So.2d 276, 280 (1952). If a police officer acts pursuant to statutory authority in arresting and incarcerating a citizen, he is not liable for damages for false arrest and imprisonment. Kyle, su pra. Under Louisiana Code of Criminal Procedure article 213(3), a peace officer may arrest a person without a warrant, when the officer has “reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer....” This article provides statutory authority for the arrest in this case. The reasonable cause required in article 213(3) exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in belief that the person to be arrested has committed or is committing an offense. See State v. Davis, 407 So.2d 666, 668 (La.1981); State v. Elliot, 407 So.2d 659, 661 (La.1981).

In this case the dog catcher asked the police officer to assist him in enforcing an animal control ordinance. The dog catcher explained he had been to the plaintiffs’ home on two occasions and had warned them that a vaccination certificate for the dog had to be produced. He told the officer that he had been to the home only fifteen minutes before and had seen the dog at the house. The police officer, therefore, had reasonable cause to believe that plaintiffs had violated Jefferson Parish Ordinance No. 12146 which requires, among other things, that one have a license and/or proof of vaccination of a dog. Since the police officer had authority for the arrest under Criminal Code of Procedure article 213(3), plaintiffs cannot recover damages for false arrest and imprisonment.

BATTERY

Also to be considered is whether plaintiffs, the husband and wife, can recover for batteries inflicted upon them by the police officer. A lawful arrest is a defense to the intentional tort of battery when reasonable force is used to effect such an arrest. See Kyle, 353 So.2d 969, 972. However, if an officer uses unreasonable or excessive force, he and his employer are liable for any injuries which result. La.C.C. art. 2320; Kyle, 353 So.2d 969, 972; Picoa v. Terrebonne Parish Sheriff’s Office, 343 So.2d 306, 308 (La.App. 1st Cir.1977); Taylor v. City of Baton Rouge, 233 So.2d 325, 330 (La.App. 1st Cir. 1970). We must evaluate this officer’s actions against the standard of an ordinary, prudent, and reasonable man placed in the same position and with the same knowledge as this officer. Kyle, 353 So.2d 969, 973; Picou, supra. Since the degree of force employed is a factual issue the trial court’s finding is entitled to great weight. Kyle, supra; Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973); Picou, 343 So.2d 306, 309. Kyle sets forth several factors to be considered in making this determination of reasonableness such as the known character of the arrestee, the risk and dangers faced by the officer, and the nature of the offense involved, the chance of the arrestee’s escape if the particular means are not employed, the existence of alternative methods of arrest, the physical size, strength, and weaponry of the officer as compared to the ar-restee, and the exigencies of the moment. Kyle, supra.

The facts and circumstances of this case support the trial court’s finding that the defendant police officer acted reasonably. The record reflects that Mr. Gerald was upset when he came to the door. He responded to Officer Koehler’s questions in a belligerent manner and often with evasive answers. When Koehler placed Mr. Gerald under arrest, Gerald resisted and retreated inside his home. Due to Mr. Gerald’s size and strength, Koehler’s several attempts to effectuate his arrest were of no avail. Officer Koehler testified that he struck Mr. Gerald with the PR24 when Gerald made a fist. Koehler stated that he felt Gerald would strike him. Moreover, Officer Koehler hit Mr. Gerald only once which Koehler stated had little effect upon Gerald; Gerald did not go to his knees nor did he surrender to the officer but continued to resist the officer. This plaintiff’s general demeanor, the fact that he weighed over three hundred pounds, combined with the fact that he seemed to be ready to strike this officer, indicate that the officer’s one blow to plaintiff Anthony Gerald was not unreasonable. We also accept, as did the trial court, Officer Koehler’s version of the episode that in attempting to dislodge Mrs. Gerald’s hold on his arm he accidently hit her in the stomach. Canter, supra. Under the facts, the police officer made a lawful arrest and used reasonable force in order to effect the arrest and to overcome plaintiff’s resistance.

INVASION OF PRIVACY

Louisiana recognizes tort recovery for invasion of privacy. The right to privacy includes the right to be free from unwarranted intrusion into one’s own quarters. Parish National Bank, 397 So.2d 1282, 1286. In Louisiana in order to recover for an invasion of privacy, plaintiffs must show they have an “actionable” claim not merely an “actual” claim. Parish National Bank, 397 So.2d 1282, 1286; Jaubert, 375 So.2d 1386, 1389; Love, 263 So.2d 460, 464-66; Hamilton, 82 So.2d 61, 70. An invasion of privacy is “actionable” when the defendant’s conduct is unreasonable and seriously interferes with the plaintiffs privacy interest. To determine the reasonableness of the defendant’s conduct, this court must balance defendant’s interest in pursuing his course of conduct against plaintiff’s interest in protecting his privacy. Parish National Bank, supra; Jaubert, supra. “Where a defendant’s action is properly authorized or justified by circumstance, it may be found reasonable and nonactionable even though it amounts to a slight invasion of the plaintiff’s privacy.” Parish National Bank, supra.

Applying the above principles, we find that plaintiffs do not have an actionable claim for invasion of privacy against the police officer and his employer; however, plaintiffs do have an actionable claim against the dog pound officer and his employer. As noted above, the police officer was authorized under La.C.Cr.P. art. 213(3) to arrest the husband and wife; his actions were reasonable under the circumstances and, therefore, nonactionable. However, the dog pound officer had no authority under the Parish Animal Control Statute or any other Louisiana statutes or jurisprudence to enter the home and seize an unlicensed animal. Under the circumstances his actions were not justified. The dog had not bitten anyone nor does the record indicate that the dog was reported as a dangerous or vicious animal. Importantly, at least one of the Gerald children still remained in the home and was present when the officer seized the dog. Considering the specific procedures set forth in the Jefferson Parish Animal Control Ordinance for violation of its provisions, we cannot say the officer was justified in entering the home. When we weigh the importance of the privacy of one’s home, against the Parish’s interest in having animals properly licensed and leashed when upon public streets, we conclude that the dog pound officer’s actions in entering the home to seize the animal were unreasonable.

Plaintiffs allege in their petition for damages that the dog pound officer’s actions caused psychic injuries to themselves and their children. They also claim entry into their home without a warrant as an injury in itself as well as damages for humiliation, mental anguish, and extreme mental suffering. The plaintiffs inadequately addressed the issues of psychological injuries at the trial court level. Consequently, the trial court granted a motion to dismiss the plaintiffs’ case as to the dog officer and his employer on the grounds that no damages were proven with regards to this defendant’s actions. While we agree with the trial court that the plaintiffs presented no evidence of the children’s psychological injuries, we do find plaintiffs have shown they were injured by the physical intrusion into their home by the dog catcher. Throughout the proceedings, there is testimony evidencing the Geralds’ desire to protect the sanctity of their home. Mr. and Mrs. Gerald made several strenuous objections to the presence of outsiders in their home without a warrant before they were arrested. We conclude that plaintiffs have shown an actionable claim for invasion of privacy against the dog pound officer and his employer and award them $1000.00 under our authority provided in La.C.C.P. art. 2164. We reverse the lower court’s dismissal of plaintiffs’ claim against the dog pound officer and his employer, the Parish of Jefferson, and award $1000.00 damages for invasion of privacy to plaintiffs against Robert Kerry, the Parish of Jefferson, and its insurer, Firemen’s Fund Insurance Company.

For the above reasons, we affirm that part of the trial court’s judgment which finds in favor of defendants, Deputy Sheriff Sergeant J. Koehler, and the Sheriff, Parish of Jefferson, and against plaintiffs. We reverse that part of the trial court’s judgment which dismisses plaintiffs’ claim against Robert Kerry and the Parish of Jefferson and its insurer, Firemen’s Fund Insurance Company, and it is now ordered that there be judgment against those defendants, in solido, and in favor of the plaintiffs in the full sum of $1000.00.

AFFIRMED IN PART AND REVERSED IN PART.

      . Several of Jefferson Parish’s Animal Control Ordinance’s pertinent provisions are:
      “Sec. 4-17(c) Dogs at large; violation notices. No dog shall be permitted to run or be upon any street, alleyway, highway, common or public square unless under the immediate control of a competent person and restrained by a substantial chain or leash not exceeding six (6) feet in length ....
      Sec. 4-13(a) Registrations, tags and vaccination. It shall be the duty of the owner or keeper of every dog or cat over four (4) months old to register same with the department by purchase of a dog or cat license. Such license shall be dated and indicate the number of the license tag issued for the dog or cat at the time it is vaccinated by a licensed veterinarian or licensed veterinary technologist with appropriate anti-rabies vaccine at the owner’s expense

      Sec. 4-16(c) Public nuisance. Every owner or keeper of animals shall exercise proper care and control of such animals so as to prevent them from creating or becoming a public nuisance. Excessive or untimely barking, howling or yelping so as to disturb the peace and quiet of a neighborhood or its residents or to disturb the health or repose of the residents; attacking or molesting passersby or other animals; being repeatedly at large; ... all shall be deemed to be the creation of a public nuisance and the owner or keeper of an animal causing such public nuisance shall be guilty of a misdemean- or and subject to the penalties of section 4-25 of this article.”

      . Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) and State v. Brown, 387 So.2d 567 (La.1980) prohibit a war-rantless, non-exigent arrest in the home. However, State v. Pittman, 397 So.2d 1297, 1298 (La.1981) held that the Payton rule is not retroactive. The arrest in this case occurred February 26, 1978; Payton and Brown were decided in 1980.

      . Code of Criminal Procedure art. 220 authorizes the use of “reasonable” force in making arrests; it provides:
      “A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistnance of the person being arrested or detained.” (Emphasis added)

      . See, e.g., Parish National Bank v. C.E. Lane, 397 So.2d 1282, 1285-86 (La.1981); Jaubert v. Crowley Post-Singal, Inc., 375 So.2d 1386, 1388-89 (La.1979); Lucas v. Ludwig, 313 So.2d 12, 14-15 (La.App. 4th Cir.1975); Love v. Southern Bell Telephone and Telegraph Co., 263 So.2d 460, 464-66 (La.App. 1st Cir.1972); Hamilton v. Lumbermen’s Mutual Casualty Co., 82 So.2d 61, 63-64 (La.App. 1st Cir.1955).

      . Other forms of invasion of privacy recognized in Louisiana include the appropriation of an individual’s name or likeness for the use or benefit of the defendant, publicity which unreasonably places the plaintiff in a false light before the public, and the unreasonable public disclosure of embarrassing private facts. Jaubert, 375 So.2d 1386, 1388.

      . La.C.C. art. 2320.

      . Although the Parish claims Section 4-21 provides authority for an authorized employee of the animal shelter department to enter a premises to take possession of and remove animals kept in violation of the provisions of the Parish Code, this article provides removal of “abandoned” or “neglected” animals from buildings or premises.

      . Section 4-12(c) authorizes the Animal Shelter Advisory Board to constitute a committee of three or more members to hear all complaints involving violations of the provisions of the statute. For example, this committee hears complaints under Section 4-16(c) pertaining to animals considered to be a public nuisance because repeatedly found to be at large. It requires notice to the defendant of a hearing and a right to be represented by counsel. Also to be noted, Section 4-17(c) authorizes the seizure of dogs found at large.

      . See, Ford Motor Company v. Williams, 108 Ga.App. 21, 132 S.E.2d 206, 211-12 (1963), revd on other grounds 219 Ga. 505, 134 S.E.2d 32 (1963), where an intrusion of privacy was found even though plaintiff was not present at the time of the entry into his home.


text:
    Shirley BEVERLY v. STATE of Louisiana Through the DEPARTMENT OF HEALTH AND HUMAN RESOURCES.
    No. 5-387.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Jan. 17, 1983.

      Edmond R. Eberle, New Orleans, for plaintiff-appellant.
    Dutel & Dutel, Catharine E. Ohlsson, Arthur J. O’Keefe, Metairie, for defendant-ap-pellee.
    Before SAMUEL, KLIEBERT and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is a worker’s compensation case in which the trial court sustained defendant’s preemptive exception of prescription and dismissed plaintiff’s suit. Plaintiff has appealed. We reverse.

The issue is whether plaintiff’s injury “developed” within one year prior to the time plaintiff filed this suit under La.R.S. 23:1209.

Plaintiff is employed as a homemaker by defendant, the State of Louisiana, through its Department of Health and Human Resources. On May 25,1979 while engaged in her homemaking duties, she was injured in a slip and fall accident at a Winn Dixie Food Store in Jefferson Parish. On that day she reported the accident to her supervisor and attempted to continue working but finally was excused (for the day) due to the pain she was experiencing. She also reported to the Emergency Room of East Jefferson Hospital where x-rays and medical examinations were performed. On the following day she returned to work. In early June 1979 she consulted Dr. Raol Rodriguez, an orthopedist, who informed her that she had a disc problem and recommended conservative medical treatment for her back injury such as pain pills, muscle relaxants, use of a corset, and applying heat to the back area. Because she was experiencing considerable pain, at the request of Dr. Rodriguez, Mrs. Beverly remained off work during June 1979 then returned to her normal work as a homemaker. In November 1979, with the approval of her supervisor, Mrs. Beverly restricted some of her work activities due to continuing back pain. She performed most of her duties as a homemaker but no longer mopped, lifted heavy objects or climbed stairs. She has continued working to the present time under this “light duty status.” According to her deposition testimony, her condition has remained essentially the same; she experiences pain sporadically but only misses work when the pain is unbearable.

During September 1980 Dr. Rodriguez recommended that plaintiff be hospitalized and that a myelogram test be performed to determine whether back surgery was necessary. At that point plaintiff sought medical payments for the proposed hospitalization and other medical expenses from her employer. This request was denied; thus, appellant filed this suit for medical care payments on May 20, 1981.

On September 23, 1981 appellee filed an exception of prescription. The trial court found that plaintiffs claim for medical expenses under Louisiana Workman’s Compensation Law had prescribed and dismissed her suit on March 12, 1982.

Plaintiff’s right to claim medical expenses exists under La.R.S. 23:1203. The Act per se does not specifically provide a prescriptive period for medical payments; however, jurisprudence has indicated that the period set forth in R.S. 23:1209 for weekly compensation benefits is applicable to claims for medical payments. See, Brown v. Travelers Ins. Co., 247 La. 7, 169 So.2d 540, 543 (1964); Rowley v. Lumbermens Mutual Cas. Co., 247 So.2d 135-36 (La.App. 4th Cir.1971); Prejean v. Travelers Ins. Co., 234 So.2d 527, 528-30 (La.App. 3d Cir.1970); Cook v. International Paper Co., 42 So.2d 558, 560 (La.App. 2d Cir.1949).

The last sentence of R.S. 23:1209 states:

“... Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.” (Emphasis added)

Expressions in the jurisprudence interpreting the last sentence of R.S. 23:1209 indicate that the prescriptive period begins to run when the employee is unable to “substantially perform the duties of employment.” See e.g. Russell v. Employers Mutual Liability Insurance Company of Wisconsin, 246 La. 1012, 169 So.2d 82, 88-89 (1964); Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522, 525-26 (1956); Johnson v. Cabot Carbon Company, Inc., 227 La. 941, 81 So.2d 2, 4-5 (1955); Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218, 219-20 (1952); Burleigh v. Argonaut Ins. Co., 347 So.2d 13, 15-16 (La.App. 3rd Cir.1977); Harris v. Seaboard Fire & Marine Ins. Co., 337 So.2d 262, 263-64 (La.App. 2d Cir.1976); Hebert v. Hartford Accident & Indemnity Co., 331 So.2d 222, 223-25 (La.App. 3d Cir.1976). Addressing the question of when a disability exists, our courts have usually resolved this question by simply holding that the day the employee ceases his/her employment due to disability is the day the “injury develops.” See Wallace, supra; Johnson, supra; Mottet, supra; Burleigh, supra; Harris, supra; Hebert, supra; Malone and Johnson, Workers’ Compensation, § 384, pp. 245-248. It should be noted that these cases have been suits that have primarily dealt with compensation benefits where the employee was forced to terminate employment due to his condition or was terminated by his employer. We find the rationale supporting these decisions determinative. It makes no difference that there is initial manifestation of the disability. Hebert, 331 So.2d 222, 224. Development connotes the time when disability to perform work becomes manifest either to the injured employee or his employer not merely when there is an occurrence of pain. Wallace, 86 So.2d 522, 526; Burleigh, 347 So.2d 13, 15; Hebert, 331 So.2d 222, 224. Importantly, where an employee continues to work, our courts emphasize encouraging rather than penalizing “an employee who seeks to continue working despite what, in legal contemplation, turns out to be disability.” Hebert, 331 So.2d 222, 224; See Wallace, 86 So.2d 522, 525-26; Johnson, 81 So.2d 2, 4; Burleigh, 347 So.2d 13, 15. They recognize an employee does not have the same knowledge and inclination of an attorney. Hebert, 331 So.2d 222, 224.

Applying these principles to this case, plaintiff has never reached the point where she can no longer pursue her occupation. Defendant claims November 1979, the date she went on light duty, as the date her injury developed. We do not find that the facts, viewed as a whole, support this conclusion. Granted she does not lift heavy objects, climb stairs with regularity, or mop which are duties performed by a homemaker; however, we do not consider this a substantial reduction in her work. She is paid her same salary and continues to work full work days. Moreover, as Wallace points out:

“[w]hat may be a disabling injury to one man may not be to another and the plain purpose of the amendment to the compensation law by Act 29 of 1934 is to provide a reasonable period of limitation in cases like this, where the injured workman continue? on at his job and earns his wage, even though he does not perform all the duties formerly assigned to him.” Wallace, 86 So.2d 522, 526.

Defendant also contends that plaintiff had knowledge of a disc problem and of the seriousness of this problem as early as June 1979. It cites Guillory v. Maryland Casualty Co., 227 So.2d 620 (La.App. 3d Cir.1969); Granger v. Nichols Construction Corp., 202 So.2d 337 (La.App. 1st Cir.1967); Whatley v. Insurance Company of North America, 154 So.2d 220 (La.App. 2d Cir.1963) for the proposition that Mrs. Beverly was fully informed as to the nature and the effect of her injury; therefore, her knowledge as early as June 1979 of the disc problem makes this date (or at the latest November 1979) the time in which prescription commences.

It is true (as was stated in her deposition testimony) that Mrs. Beverly was informed that she may have a serious disc problem as early as June 1979. However, she was never told that she was disabled or that she could not return to work. Moreover, her physician informed her that there was a possibility her condition would improve. Rather than quit work and draw worker’s compensation payments, Mrs. Beverly has continued working although at times in considerable pain and has missed only a few work days due to her back condition. The rationale behind the above cited cases of Wallace, Johnson, Burleigh, and Hebert is applicable here. We will not penalize a worker who continues to work in pain hoping that her condition will improve and who continues to support her family unit throughout this time.

For the reasons stated above, we overrule the exception of prescription and remand this case for further proceedings. The costs of this appeal are assessed to defendant-ap-pellee; any costs at the trial court level arising from the adjudication of this exception of prescription are also assessed to defendant-appellee.

REVERSED AND REMANDED.

      . Shirley Beverly has not sought compensation payments but has reserved her right to claim compensation benefits if such a claim arises.


text:
    Frank TRAPANI III and his Wife, Patricia Munster Trapani v. STATE FARM FIRE & CASUALTY COMPANY, Maurice Phil Weinstein.
    No. 5-191.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Jan. 17, 1983.

      Owen J. Bradley and Michael R. Guidry, New Orleans, for plaintiffs-appellants.
    Dinwiddie & Brandao, Edward J. Bran-dao, Metairie, for defendants-appellees.
    Before SAMUEL, KLIEBERT and GRISBAUM, JJ.
   GRISBAUM, Judge.

In this personal injury case, appellant Frank Trapani, III and his wife, Patricia Munster Trapani, brought suit for injuries sustained by Mrs. Trapani while a guest on Mr. Weinstein’s boat. The Trapanis appeal a judgment in favor of the defendant, State Farm Fire and Casualty Company. We affirm.

Early in the morning of July 3,1977 four friends met to embark on a fishing trip. Frank and Pat Trapani, Phil Weinstein, and Santo Mangipano drove to Empire, Louisiana, to launch the boat which was owned and operated by Mr. Weinstein. The 22 foot boat proceeded through calm canal water without incident. However, upon entering the Gulf, the waves picked up and Mr. Weinstein reduced the speed of the boat. Standing to the left of Mr. Weinstein was Frank Trapani. Seated to the left of him was his wife, Pat. Seated at the back of the boat on an ice chest was Mr. Mangi-pano. Mrs. Trapani complained to her husband that she was bothered by the movement of the boat. He recommended that she stand next to him and hold onto the windshield. The height of the waves, assessed differently by each party, was estimated as between one to three feet and three to five feet. The reduced speed that Mr. Weinstein was driving in the Gulf was also estimated variously as between twelve to fifteen miles per hour and twenty-five to thirty-five miles per hour. The boat had gone less than a mile in the open Gulf when suddenly Mrs. Trapani was thrown up in the air and came crashing down on the boat’s deck. She sustained a severe fracture to her ankle.

On November 17,1977 Mr. and Mrs. Tra-pani filed a petition for damages against Maurice Phil Weinstein, and his insurer, State Farm Fire and Casualty Company. The matter came to trial before a jury on April 6, 9 and 10, 1981. On April 10 appellants voluntarily dismissed with prejudice their claim against Mr. Weinstein. On the same day, the jury returned a verdict in favor of the remaining defendant, State Farm Fire and Casualty Company. The jury found Maurice Weinstein, Jr. was not negligent. On July 16,1981 appellants filed a devolutive appeal.

There are two issues presented. The first is whether the court erroneously charged the jury as to a matter of common knowledge. Finding it was erroneous, the second issue is whether Mr. Weinstein was negligent.

The basis of the first issue is the court’s charge to the jury that “it is a matter of common knowledge that the movement of fishing boats and other small water craft are constantly affected by the waves and thereby made unsteady.” This language, requested by the defendant, was quoted from the opinion in Aronowitz v. Molero, 273 F.Supp. 226 (E.D.La.1967). The Louisiana Code of Civil Procedure restricts the permissible contents of the charge of the jury. Article 1792 states:

Content of Charge to Jury
In his charge to the jury the judge shall instruct the jurors on the law applicable to the cause submitted to them, but he shall not recapitulate or comment upon the evidence so as to exercise any influence upon their decision as to the facts.

The disputed charge admits to being on a matter of common knowledge, not on the law applicable to the case. If a fact is a matter of common knowledge, the jury need not be told so by the court. If it is not, then the judge stating that it is exercises an undue influence upon their decision. So, while jurors may be free to integrate common knowledge into their reasoning, their mental processes should be unaffected by any suggestion by the trial court. The damaging import of such language is that it has a tendency to influence the jury upon the crucial factual issue of whether Mr. Weinstein’s negligence or unavoidable movement caused by the waves was the cause of Mrs. Trapani’s fall. Gulf, M. & N.R. Co. v. Weldy, 193 Miss. 59, 8 So.2d 249 (1942).

The fact that the language was borrowed from the reasoning of a written opinion does not uphold the charge. Isolated from its context, or sought to be translated from mere discussion into substantive law, opinion language is apt to become invested with a quality wholly inappropriate for use in instructions. Taylor v. Insurance Company of North America, 263 So.2d 749 (Miss.1972). The mere fact that certain language has been used by a judge in rendering an opinion is not of itself sufficient to justify the use of the same language by a trial court in its instruction to the jury. News Leader Co. v. Kocen, 173 Va. 95, 3 S.E.2d 385 (1939).

The question of whether or not the jury was properly instructed affects the weight that should be given to the jury findings. If the instructions were so inadequate or improper as to preclude the jury from reaching a verdict based on the law and facts, the appellate court would be bound to render the judgment which it considers is just, legal and proper upon the record on appeal. La.Code Civ.P. art. 2164; Brown v. White, 405 So.2d 555 (La.App. 4th Cir.1981). The adequacy of a jury instruction must be determined in light of the jury instructions as a whole. Brown v. White, supra.

This court has considered the jury charges given in this case. The other jury charge of the defendants which was granted and apparently read in conjunction with the disputed jury charge is “the mere happening of an accident and injuries does not raise any presumption of negligence on the part of anyone. Negligence is an affirmative fact which is not presumed but must be proved by the party who alleges it; and it must be proved by a preponderance of the evidence.” While this charge is not improper on its face, it does, when read with the “common knowledge” charge, seem to infer to the jury that negligence was not proven to be the cause of Mrs. Trapani’s injury but rather the common knowledge fact that fishing boats are thrown around by the waves.

Therefore, we hold that the jury charge, in light of the jury instructions as a whole, were so improper as to preclude the jury from reaching a verdict based on the law and facts. We must now reach our own factual determination of whether Mr. Wein-stein was negligent.

The second issue requires discussion of general negligence and the doctrine of res ipsa loquitur which the appellant raises for the first time in argument to this court. Appellant cites a recent Second Circuit case Holman v. Reliance Insurance Companies, 414 So.2d 1298 (La.App. 2d Cir.1982) as authority for application of res ipsa to the instant case.

However, as stated in Holman, Louisiana courts have utilized res ipsa primarily when (1) the accident is of the kind that does not ordinarily occur in the absence of negligence, (2) the injury was caused by an agency or instrumentality within the actual or constructive control of the defendants, and (3) evidence of the real cause of the accident is more readily accessible to the defendant. Comment, 25 La.L.Rev. 748 (1965). The last factor would apply, for example, to the facts of Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972) in which fire had spread throughout a building within an hour after defendant’s employees left and locked the restaurant. Plaintiff’s decedent, in an adjacent building, died from suffocation. Defendants were the last people in the restaurant and knew the condition the kitchen was left in. Plaintiff could not readily access the condition of the restaurant prior to the fire. Thus, the cause of the accident was more readily accessible to the defendant. In the instant case, however, all parties were on the boat, noted the sea conditions and speed of the boat. Thus, evidence of the cause of the accident was equally accessible to both parties.

The court in Boudreaux applied the doctrine of res ipsa stating “the evidence as a whole shows that the defendant’s insured’s negligence was the most plausible or likely cause of the fire which caused the decedent’s death. (Footnote omitted) We cannot as reasonably ascribe any other cause.” Therefore to determine if res ipsa should be applied, we must determine if “the facts ... suggest negligence of the defendant, rather than some other factors, as the most plausible explanation of the accident.” Pilie v. National Food Stores of La., Inc., 245 La. 276, 158 So.2d 162 (1963). Testimony in the instant case failed to suggest that negligence, rather than other factors, was the most plausible explanation of the accident.

Appellant, Frank Trapani, did not testify to any facts that inferred negligence. He stated he had fished with Phil Weinstein in his boat ten to fifteen times previously, and the speed that Mr. Weinstein operated his boat on the day of the accident was the normal speed he usually operated the boat. He stated that on past occasions, he and Phil would decide together if the seas were too rough to go out on. He had never had any personal disagreement with Phil’s decision as to whether or not to go out on the Gulf. Mr. Trapani stated, under cross-examination, he had no objection to going out into the Gulf the day of the accident. Still under cross-examination, Mr. Trapani responded to questions as follows:

Q. Now, once the vessel got into the Gulf waters, out of the canal, did you have any problem maintaining your balance standing in the middle of the boat as you described?
A. No, sir; I was holding onto the windshield.
Q. And the waves that you described the boat going through did not cause you to slip or fall or have any problems of any sort, did they?
A. No, sir, just a throbbing, you know.
Q. In point of fact, the wave which was under the boat when your wife fell didn’t cause you any problems, did it?
A. I felt a jolt, but I didn’t fall.
Q. You neither lost your balance?
A. Right.
Q. Nor went up in the air?
A. Not that I can remember.
Q. Nor fell down?
A. Right.
Q. You felt the wave but it didn’t cause you problems?
A. Right.
Q. You earlier testified that Phil reduced his speed when the vessel had entered the Gulf?
A. Yes, sir.

The testimony of Mr. Mangipano was likewise unsupportive of a finding of negligence. He stated at the time that Mrs. Trapani had her accident he “went up, too” from his seated position on the ice chest, but came back down sitting and sustained no injuries in connection with the event. In the period before the accident he did not have to hold on to keep from falling off the ice chest nor did he have any difficulty maintaining his position. Mr. Mangipano stated he had traveled on the Gulf in waves of the same size before and had traveled at speeds equal to and even faster than the speed traveled by Mr. Weinstein that day.

Mrs. Trapani testified she had only been out in the Gulf two times before the day of her accident. Both previous trips had also been with Mr. Weinstein. On the first trip the water was calm and they had an uneventful fishing trip. On the second trip, however, they turned back when they reached the Gulf because of the rough condition of the waves. On the third trip during which Mrs. Trapani had her accident, she testified the waves were rough and choppy. She told her husband she “felt like her insides were falling out.”

Mr. Weinstein testified that he had owned and operated boats for fifteen years. Based on the RPM’s registered on his tachometer, he estimated his speed at the time of the accident at twelve to fifteen miles per hour. He also estimated the height of the waves at somewhere in between one and three feet. Mr. Weinstein stated that although he was looking ahead and saw all the waves, there was nothing about the waves that resulted in Mrs. Tra-pani’s injury that appeared different or required special handling.

Application of the doctrine of res ipsa loquitur would be inappropriate in the instant case. The evidence failed to indicate that Mr. Weinstein’s negligence was the most likely cause of the accident. The testimony indicated nothing unusual or unreasonable about a boat ride on the Gulf. Res ipsa cannot be employed to provide an inference of negligence only because the testimony failed to do so.

To avoid negligence, a person must comply to the standard of a reasonable person under like circumstances. Although a slower speed may well have prevented this mishap, the appellee is not held to a standard of perfect accompanied with hindsight. No evidence was advanced to show that Mr. Weinstein breached the duty he owed to Mrs. Trapani. The reason why only Mrs. Trapani was adversely affected by the wave is not clear. Regardless, appellant failed to prove that Mr. Weinstein should reasonably have acted differently to avoid such a mishap. For the reasons assigned, we find that Mr. Weinstein was not negligent, and the judgment appealed from is affirmed.

AFFIRMED.


text:
    Duc Minh NGUYEN, Individually and For and on Behalf of His Minor Children, Tri NGUYEN, and Tam Nguyen, and Loi Van Nguyen v. Louis THOMAS.
    No. 5-245.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Ernest E. Barrow, II, Gretna, for plaintiff-appellee.
    Melvin C. Zeno, Marrero, for defendant-appellant.
    Joel P. Loeffelholz, New Orleans, for defendant-appellant.
    Robert W. Booksh, Jr., Larry M. Roedel, New Orleans, for defendant-appellant.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is an appeal from a summary judgment which dismissed a third party claim for liability insurance coverage against an insurance company. The central issue is whether the trial court erred in granting a summary judgment because genuine issues of material fact are present in this case. We believe there are genuine issues of material fact in dispute. Accordingly, we reverse and remand for the reasons given below.

Due Minh Nguyen individually and on behalf of his minor children, sued Louis Thomas, appellant, for damages which plaintiffs received through the alleged negligence of Louis Thomas in an automobile accident which occurred September 22, 1979. On October 17, 1980 Mr. Thomas brought a third party demand against H.H. Frenkle Insurance Agency and Canal Indemnity Insurance Company. He alleged that on September 22, 1979, the day of the accident, he was covered by liability insurance which he had contracted with Canal Indemnity through H.H. Frenkle Insurance Agency. He alleged that this contract was for liability coverage from May 26, 1979 to May 26, 1980. He also alleged negligence on the part of H.H. Frenkle Insurance Agency and/or Canal Indemnity Company resulting in the delay in issuance of insurance covering his truck despite the fact he concluded his contract for insurance on May 26, 1979. In a Supplemental and Amended Petition, Mr. Thomas more specifically alleged that H.H. Frenkle Insurance Agency was an agent for Canal Indemnity Company thereby making Canal liable for Fren-kle’s acts, that H.H. Frenkle Insurance Agency refused and/or failed to properly record and/or transmit the necessary documents to Canal to evidence the insurance contracted by Thomas on May 26, 1979 or submitted an incorrect date. Further, that Canal failed to properly record and/or issue a policy of insurance to Mr. Thomas which resulted in a policy which was effected September 25, 1979 rather than May 26, 1979, and finally that Mr. Thomas at all times believed he had full liability coverage with Canal Indemnity Company beginning May 26, 1979 and effective on the date of the accident, September 22, 1979. On October 17, 1980 Canal moved for Summary Judgment. In support of its motion it filed two affidavits based upon the personal knowledge of the affiant which attested that H.H. Frenkle has never been authorized by Canal as its agent to accept applications and/or to issue insurance policies on its behalf, and that on September 22,1979, the date of the accident, sued upon in the main demand, Canal did not have in force and effect any insurance policy issued insuring Mr. Thomas. In opposition to Canal’s motion for summary judgment, Mr. Thomas filed an affidavit based upon his personal knowledge which attested that on May 26, 1979 he contracted with Canal Indemnity Company through H.H. Frenkle Insurance Agency for liability insurance on a 1978 Chevrolet truck and that this agreement was contracted specifically to protect Mr. Thomas from actions sued upon by original plaintiffs and was to be effective May 26, 1979 to May 26,1980. He also attested that acts of negligence committed by Canal and/or H.H. Frenkle Insurance Agency had resulted in failure of Mr. Thomas being properly insured on the date of the accident.

Summary judgment is available only when “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.” La.C.C.P. art. 966; Thompson v. South Central Bell Telephone Co., 411 So.2d 26, 27 (La.1982); Vermilion Corp. v. Vaughn, 397 So.2d 490, 493 (La.1981). Under Vermilion we must view the inferences to be drawn from the materials before us in a light most favorable to the party opposing the motion. Vermilion elaborates:

“To satisfy his burden the mover must meet a strict standard by a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. (Citations omitted) The papers supporting mover’s position are closely scrutinized, while the opposing papers are indulgently treated, in determining whether the mover has satisfied his burden.” Vermilion, supra.

Under the principles outlined above, we find that mover, Canal, has not satisfied its burden of establishing that no genuine issue as to material fact exists. We find there is a question as to whether Thomas entered into a contract of insurance with Canal on May 26, 1979. To determine the issue of the existence of such a contract, the further question of whether an agency relationship existed between Canal and Frenkle must also be addressed and evidence educed.

Mr. Thomas’ petition alleges and his affidavit attests that he has a contract of liability insurance with Canal which began May 26, 1979. Canal presents two affidavits attesting that there is no contract of liability insurance with Thomas in effect on the date of his accident, September 22, 1979, and that Frenkle is not its authorized agent.

Canal emphasizes that in Mr. Thomas’ affidavit he acknowledges that he was not properly insured by Canal on the date of the automobile accident, and, therefore, there is no issue as to the existence of any insurance contract between them. In one of his attestations Mr. Thomas does state that the negligence of Canal and/or Fren-kle resulted in his failure to be properly insured; he, however, initially attests that he contracted with Canal Indemnity through H.H. Frenkle. As we are directed by Vermilion, we treat this apparent contradiction with indulgence remembering as emphasized in Thompson that the “[s]um-mary judgment procedure is not a catchpenny (sic) contrivance to take unwary litigants into its toils and deprive them of a trial.” Thompson, 411 So.2d 26, 27 quoting Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir.1940); Vermilion, supra. Moreover, even if we accepted Canal’s argument that there is no insurance contract entered into on May 26,1979 as admitted by Mr. Thomas in one of his attestations, we do find a genuine issue as to an agency relationship which may exist between Frenkle and Canal Indemnity Insurance Company. Thus, Canal has not carried its burden of showing that it is quite clear what the truth is and that there is no real doubt as to the existence of any genuine issue of material fact.

The judgment of the trial court dismissing defendant, third party plaintiff’s claim against third party defendant Canal Indemnity Insurance Company is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion. The costs of this appeal and the costs of the adjudication of the summary judgment on the trial court level are assessed against Canal Indemnity Company.

REVERSED AND REMANDED.


author: KLIEBERT, Judge.

text:
    Elizabeth Ferrera Mitchell KESLER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 5-162.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Preston G. Sutherland, Kambur & Sutherland, New Orleans, for plaintiff-appellant.
    Owen A. Neff, Sessions, Fishman, Rosen-son, Boisfontaine & Nathan, New Orleans, for defendant-appellee.
    Before SAMUEL, KLIEBERT and GRISBAUM, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal brought by Elizabeth Kesler, plaintiff, from a judgment dismissing her claim against her uninsured motorist insurance carrier, State Farm Mutual Automobile Insurance Company, on an exception of prescription grounded in LA. R.S. 9:5629. The issue presented on appeal is whether the two year prescriptive period provided by R.S. 9:5629 applies under the facts of this case. The trial judge concluded that it did.

Ms. Kesler was involved in an automobile accident on May 6,1978. Three years later, on May 14, 1981, she filed suit against her insurance carrier, State Farm, for recovery of damages under the underinsured motorist provisions of her policy. Her petition alleged a compromise with the tort-feasor and his insurance carrier but contended her damages exceeded the coverage provided by the tort-feasor’s policy, hence, she sought recovery from her carrier pursuant to the underinsured motorist provisions of her policy.

In response, State Farm filed an exception of prescription grounded in R.S. 9:5629 which provides:

“Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.
Added by Acts 1977, No. 444, § 1, eff. July 1,1978.”

Prior to July 1, 1979, the effective date of the statute, the prescriptive period applicable to plaintiff’s claim was the ten years prescription provided by La.C.C. Article 3544. Since the statute at issue here became effective after the date of the accident, i.e., May 6, 1978, the issue presented on appeal is whether the two year prescription provided in R.S. 9:5629 can be applied here.

Under the statute, the plaintiff’s cause of action prescribed on May 6, 1980. Thus, plaintiff had from the date of the accident, May 6, 1978 to May 6, 1980, in which to timely file her suit. She did not file the suit, however, until more than two years after the effective date of R.S. 9:5629. There is, therefore, no constitutional bar to the application of the statute. Pure and simple, it is a statute which merely shortens the existing periods of limitations and since plaintiff had a reasonable period of time to assert her rights, the application of the statute does not violate her constitutional rights. Reichenphader v. Allstate Insurance Company, 418 So.2d 648, (La.1982).

During oral arguments, counsel for appellant requested and we granted additional time for the parties to file supplemental briefs based on the Supreme Court’s ruling in Hoefly v. Government Employees Insur ance Company, et al, 418 So.2d 575 (La.1982). The ruling of Hoefly was that the uninsured motorist insurance carrier has a solidary obligation with the tort-feasor, therefore, a suit against the tort-feasor interrupted prescription as to the insurer.

The briefs filed by both parties refer to the pleadings in and/or the filing of a suit by Kesler against the tort-feasor. Counsel for Kesler argues the suit interrupted prescription, hence, the suit was timely. On the other hand, counsel for State Farm argues the suit did not interrupt the prescriptive period, but even if it did, the settlement and dismissal of the suit with prejudice resulted in the discharge of State Farm and/or had the effect of destroying the interruption. The facts, i.e., the record of the suit against the tort-fea-sor, necessary to determine whether or not there was an interruption of the prescription, are not in the record before us, nor did the trial court have an opportunity to rule on the question of interruption. Accordingly, the case is remanded to the trial court for the purpose of taking evidence and ruling on whether there was an interruption of the prescriptive period provided by La.R.S. 9:5629. Each party to bear his own costs.

REMANDED.


text:
    Jane Flick, Wife of Frank W. WHARTON v. Frank W. WHARTON.
    No. 5-235.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Frank W. Wharton, in pro. per.
    George L. Gillespie, Jr., Gillespie & Jones, Metairie, for plaintiff-appellee.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

The trial judge made a judgment for past due child support and alimony of $6,341.50 executory against the husband, Frank W. Wharton, and awarded attorney fees of $400.00 to the wife’s attorney and costs, including a fee of $320.00 to the attorney appointed by the court to represent the husband when his original counsel withdrew.

The appointed counsel perfected a devolu-tive appeal and then filed for and was granted the right to withdraw from the representation of the husband. Neither party requested oral arguments or filed briefs.

Under our present uniform rules for Courts of Appeal, effective July 1, 1982, this appeal would be considered abandoned under Rule 2-8.6 if appellant failed to respond when notified of his failure to file his brief. However, this appeal was lodged prior to the effective date of the rule, hence, no notice of the failure was given by the clerk. Therefore, the procedure is not applicable here.

Accordingly, we carefully reviewed the record and see no reason or grounds to disturb the judgment appealed from. Therefore, the judgment of the trial court is affirmed. Each party to bear his own costs.

AFFIRMED.


text:
    TIARA CORPORATION v. DELTA ELECTRONICS COMPANY OF LOUISIANA, INC.
    No. 5-243.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Robert G. Creely, Amato & Creely, Gret-na, for defendant-appellant.
    G. Patrick Hand, Hand & Markey, New Orleans, for plaintiff-appellee.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

This is a suspensive appeal brought by Delta Electronics Company of Louisiana, Inc. (hereafter “lessee”) from a judgment rendered in favor of Tiara Corporation (hereafter “lessor”) for $1,813.73. The $1,813.73 represented the ad valorem taxes paid by the lessor and for which he sought reimbursement from lessee under the lease provisions. The lessee appeals, contending the trial judge erred in his interpretation of the written lease agreement. We agree with the trial judge’s interpretation and accordingly affirm.

On June 20, 1979, the lessor and lessee entered into a written lease agreement. Paragraph XII of the lease agreement provides as follows:

“UTILITIES AND TAXES
LESSOR shall be liable for payment of all real estate and related taxes due to the State of Louisiana or any political subdivision thereof on the herein leased premises. LESSEE shall be liable for payment of all utility charges for electricity, gas, and/or water and taxes on inventory or other related corporate taxes.”

Paragraph XV, headed “Miscellaneous”, provided in pertinent part as follows:

“LESSEE agrees to reimburse LESSOR for any increase (over 1979 levels) in both owner’s fire, casualty and liability insur-anee and in property taxes of any kind (which are imposed on the leased property)-”

The record shows the property taxes assessed for the year 1979 were paid by the lessor and totalled $169.49. Property taxes assessed for 1980 and paid by the lessor amounted to $1,983.11. The increase was attributed to an increase in assessment due to the erection of a building on the property by the lessee. The lessor made demand upon the lessee for reimbursement of the increase in taxes for 1980. The lessee refused the demand. This suit followed. At the trial level, the parties agreed to submit the matter on briefs. The lessee failed to submit a brief. Both parties have filed a brief here.

The thrust of lessee’s argument on appeal is that the difference in the 1979 and 1980 taxes was attributable to the newly erected building and, as such a new tax to be borne by the lessor under the provisions of paragraph XII of the lease agreement rather than an increase in ad valorem taxes, the burden of which was to be borne by the lessee under the provisions of Paragraph XV of the lease. Additionally, the lessee contends a substantial increase in ad valo-rem taxes was not intended to be covered by the lease agreement.

Louisiana Civil Code Article 1945 provides:

Art. 1945. Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:
First — That no general or special legislative act can be so construed as to avoid or modify a legal contract previously made;
Second —That courts are bound to give legal effect to all such contracts according to the true intent of all the parties;
Third — That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences;
Fourth — That it is the common intent of the parties — that is, the intention of all — that is to be sought for; if there was a difference in this intent, there was no common consent and, consequently, no contract.

In Bohm v. CIT Financial Services, Inc., 348 So.2d 132 (La.App., 1st Cir.1977) the court stated at page 134:

“If the agreement between the parties is clear and unambiguous, and will not lead to absurd consequences, the intention of the parties must be gathered from the writing itself. It is only where the agreement is unclear, ambiguous or will lead to absurd consequences that the court should go beyond the written agreement to gather the true intention...” (Cases cited therein.)

We find no error in the interpretation of the lease agreement by the trial judge. The increase in taxes was clearly provided for in the lease agreement. The above quoted paragraphs of the lease agreement make the lessor responsible for the ad valo-rem taxes as assessed in 1979, while shifting the burden of any increases in ad valorem taxes thereafter to the lessee. We find the lease agreement to be clear and unambiguous. Accordingly, the trial court’s judgment is affirmed. Appellant to pay all costs.

AFFIRMED.


text:
    Hanson J. EDWARDS and Jo Ann V. Edwards v. LOUSTEAU AUTO SALES, INC.
    No. 5-295.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Lawrence W. Bell, Attaya & Bell, Gonzales, for plaintiffs-appellees.
    Richard J. Holmes, Norco, for defendant-appellant.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

On May 15, 1980, Hanson J. Edwards (buyer) purchased from Lousteau Auto Sales, Inc. (seller), a 1962 Volkswagen automobile for $745.00. On August 13, 1981, buyer filed a petition alleging that on July 1, 1980 he parked the vehicle in his driveway and never again used it because he found the number on the chassis of the vehicle was different from the chassis number shown on the title certificate he received from the State of Louisiana. He alleges the erroneous number makes the title non-merchantable and, as such, constitutes a redhibitory defect which entitles the buyer to have the sale set aside and the purchase price refunded to him. He additionally alleges as follows:

“In addition to the redhibitory defect in the vehicle, there is error in the' contract in that petitioners would not have purchased the vehicle until the question of the serial number had been resolved had they known of the discrepancy at the time of the purchase.”

The petition then contained a prayer as follows:

“WHEREFORE, petitioners pray that after due proceedings had that there be judgment herein in favor of plaintiffs and against defendant awarding unto plaintiffs a sum of not less than $5,000.00, plus a sum to be determined by this court as reasonable attorney fees, together with judicial interest from date of demand until paid and for all costs of these proceedings, including depositions and expert witness fees.”

Although a hearing was held, no evidence pertinent to the issues presented here was submitted. Following arguments, the trial judge maintained the seller’s exception of prescription insofar as the petition alleged a cause of action in redhibition and dismissed the exception of prescription insofar as the suit was an action for breach of contract. The effect of the ruling was to maintain the buyer’s action as a suit for damages arising out of a breach of contract.

The seller devolutively appealed from the trial judge’s ruling denying his exception of prescription insofar as the buyer’s suit was one for breach of contract. The buyer answered the appeal seeking a reversal of that portion of the trial court’s ruling maintaining the exception of prescription insofar as the petition alleged a cause of action in redhibition and seeking damages for a frivolous appeal. The judgment from which the seller appeals (i.e., the dismissal of the exception as it pertains to the action for breach of contract) is an interlocutory one and, hence, not appealable. La.C.C.P. Article 2083 and 1841; Short v. Criminal Sheriff's Office, 407 So.2d 786 (La.App. 4th Cir.1981). Accordingly, the seller’s appeal is dismissed.

The appeal having been dismissed, the answer of the appellee, being unsupported and without foundation, falls, notwithstanding the provisions of La.C.C.P. Article 2133. Weathers v. Herald Life Insurance Co., 284 So.2d 624 (La.App. 3rd Cir.1973). Therefore, since the answer to the appeal is without independent vitality, it is dismissed along with the seller’s appeal.

Appellant to pay all costs of the appeal.

DISMISSED.


author: BOWES, Judge.

text:
    BANK OF ST. CHARLES AND TRUST COMPANY v. GREAT SOUTHERN COACH CORPORATION.
    No. 5-90.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Charles Lagarde, Jr., Luling, Herman C. Hoffman, Jr., New Orleans, for plaintiff-appellee.
    Daniel A. Post and John M. Garic, Post, Reinhardt & Rougelot, for defendant-appellant.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   BOWES, Judge.

Defendants-appellants seek to have set aside a deficiency judgment obtained by the plaintiff after the bank foreclosed via exe-cutiva on three promissory notes executed by the defendant corporation and endorsed by two individuals, C.J. Guiteau, Jr., President of Great Southern, and Jacques L. Fortier, as co-makers. Appellant argues that plaintiff-appellee should not have been allowed to obtain a deficiency judgment against appellants because the bank did not comply with the strict requisites of executo-ry process in that the bank failed to attach to the collateral mortgage securing the promissory notes a certified copy of a corporate resolution authorizing C.J. Guiteau, Jr. to execute mortgages on its behalf.

Executory process is a unique and a harsh remedy and because of these attributes the rules which allow a creditor to proceed with this remedy must be strictly construed. L.S.A.C.C.P.—2635 lists the authentic evidence which shall be submitted with a petition for executory process:

(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage or privilege;
(2) The authentic act of mortgage or privilege importing a confession of judgment; and
(3) Any judgment, judicial letters, order of court, or authentic act necessary to complete the proof of plaintiff’s right to use executory process.”
This requirement of authentic evidence is relaxed only in those cases, and to the extent, provided by law.

Appellant claims that LSA C.C.P. 2635, along with LSA R.S. 13:4103 require that a certified copy of the resolution of the Board of Directors authorizing the execution of the mortgage on behalf of the corporation be attached to the original Act of Mortgage to complete the proof of plaintiff’s right to use executory process.

The requirement of authentic evidence to support every Jink in the chain of evidence in an executory proceeding is the very foundation of executory process. “To justify the order of seizure and sale every muniment of title, and every link of evidence must be in the authentic form.” Miller, Lyon & Co. v. Cappel, 36 La.Ann. 264 (1884); La.Code Civ.P. art. 2635, Official Comments.

It is evident from Louisiana statutory law and jurisprudence that a corporate resolution is such a link. La.Code Civ.P. art. 2635, 2636; La.R.S. 13:4103; Progressive Bank & Trust Co. v. Dieco Specialty, Inc., 378 So.2d 139 (La.App. 1st Cir.1979); Snell v. Amite Oil Co., 178 La. 176, 151 So. 70 (1933).

La.Code Civ.P. art. 2636 provides:

The following documentary evidence shall be deemed to be authentic for purposes of executory process:
(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage or privilege, paraphed for identification with the act of mortgage or privilege by the notary or other officer before whom it is executed;
(2) A certified copy of an authentic act;
(3) A certified copy of any judgment, judicial letters, or order of court;
(4) A copy of a resolution of the board of directors, or other governing board of a corporation, authorizing the execution of a mortgage on its property, certified in accordance with the provisions of R.S. 13:4103; and
(5) All other documentary evidence recognized by law as authentic.

We are of the opinion that articles 2635 and 2636 must be read in pari materia.

Thus, it is seen that Article 2636 supplies or explains what will be deemed to be authentic evidence of the exhibits required in Article 2635. Article 2636(1) states that the note, bond, or other instrument required in Article 2635(1), must be paraphed for identification to be deemed authentic. Article 2636(2) states that a certified copy of an authentic act, that being the authentic act of the mortgage or privilege of Article 2635(2), is sufficient for executory process. Article 2636(3) states that a certified copy of any judgment, judicial letters, or order of court as per Article 2635(3), is authentic evidence. The remainder of Article 2635(3) calls for any authentic act necessary to complete the proof of the plaintiff’s right to use executory process. The last sentence of said article refers to the fact that this requirement of authentic evidence (being the first three sections of the article) is relaxed only in those cases and to the extent provided by law. Thus we see that the article refers to authentic evidence and authentic acts in the same context or interchangeably. The counterpart in Article 2636(4) refers to a copy of the resolution of the board of directors authorizing execution of the mortgage. Accordingly, a copy of the resolution is authentic evidence necessary to complete the proof of plaintiff’s right to use executo-ry process. Article 2636(4) states that this copy should be certified in accordance with the provisions of R.S. 13:4103, which states in pertinent part:

A copy of the resolution of the board of directors or other governing board of a corporation, authorizing the execution of a mortgage on behalf of the corporation, taken from the copy certified by the secretary or any assistant secretary, and certified as provided hereinafter, shall be deemed authentic evidence for the purposes of an executory proceeding to enforce the mortgage.

Section 4103 thus extensively states what is required for a copy of the resolution to be deemed sufficient evidence for the purposes of executory process. It specifies the manner in which this copy of the resolution should be certified to be deemed authentic. It does not deal with the underlying requirement for the certified copy.

The general rule governing defenses and procedural objections to an executory process are set forth in LSA-C.C.P. art. 2642, which states:

Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a sus-pensive appeal from the order directing the issuance of the writ of seizure and sale, or both.
A suspensive appeal from an order directing the issuance of a writ of seizure and sale shall be taken within fifteen days of the signing of the order. The appeal is governed by the provisions of Articles 2081 through 2086, 2088 through 2122, and 2124 through 2167, except that the security therefor shall be for an amount exceeding by one-half the balance due on the debt secured by the mortgage or privilege sought to be enforced, including principal, interest to date of the order of appeal, and attorney’s fee, but exclusive of court costs.

Since the time limitations of LSA-C.C.P. art. 2642 have expired and the sale of the property is now complete, the remedies set out in Article 2642 are no longer available to the defendants.

However, defendants’ attack on the granting of a deficiency judgment based upon defective executory proceedings is proper and well-founded. In League Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968), Rehearing Denied, the Louisiana Supreme Court stated:

Our law stipulates the authentic evidence required in order to invoke exec-utory proceedings. * * * The courts on numerous occasions have held that, without the proper authentic evidence, execu-tory proceedings cannot be had. * * * This follows the general principle set out in Article 12 of the Louisiana Civil Code:
‘Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed.’
A creditor cannot obtain a deficiency judgment unless he has sold the property under executory proceedings after appraisal. * * * It should follow that, if improper authentic evidence was filed so as to render the executory proceedings null, then any action based upon the exec-utory proceedings is likewise null, [citations omitted]

In addressing this same question in the case of Chrysler Credit Corp. v. Stout, 404 So.2d 304 (La.App. 3rd Cir.1981), our brothers of the Third Circuit, following the dictate of the Supreme Court, enunciated:

... Ordinarily, defects of form in execu-tory 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) ***... [other citations omitted]

We adopt this holding of the Third Circuit.

Accordingly, it is our opinion that the executory process upon which the deficiency judgment granted to plaintiff was based is defective because of the lack of a properly certified copy of the resolution of the Board of Directors authorizing the execution of the mortgage, and that the granting of said deficiency judgment was an error. Consequently, the defense raised by appellant against the deficiency judgment sought by appellee is valid.

Therefore, for the reasons stated above, the deficiency judgment of May 21,1980, in favor of plaintiff and against defendants, is annulled and set aside.

ANNULLED AND SET ASIDE.

      . Note: The following sentence was added by Acts 1981, No. 210 Sec. 1 but has no bearing on the case at bar:
      “A variance between the recitals of the note and of the mortgage regarding the obligation to pay attorney’s fees shall not preclude the use of executory process.”

      . LSA-R.S. 13:4103
      “A copy of the resolution of the board of directors, or other governing board of a corporation, authorizing the execution of a mortgage on behalf of the corporation, taken from the copy certified by the secretary, and certified as provided hereinafter, shall be deemed authentic evidence for the purposes of an executory proceeding to enforce the mortgage. This copy of resolution shall be certified by the notary before whom the mortgage was passed in Orleans Parish, or by the clerk of the district court in all other parishes. This certified copy shall be deemed sufficient evidence, for the purposes of exec-utory process of: the authority of the officer or agent to execute the mortgage; the existence and personnel of the governing board; and the authority of the governing board to authorize the execution of the mortgage.
      The right of an interested party to question or attack the authority of the purported officer or agent to execute the mortgage is not affected in any manner by the provisions of this section. As amended Acts 1960, No. 32, Sec. 1.”


text:
    Darlene T. DUPRE v. Monroe J. WOLFE, Sr., et al.
    No. 5-315.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Gerald Wasserman, New Orleans, for plaintiff-appellee.
    Jesse S. Guillot, New Orleans, for defendants-appellants.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   BOWES, Judge.

Defendant, Louisiana Department of Transportation and Development (hereinafter the Department), appeals from a judgment of the District Court in favor of Darlene T. Dupre and against the Department for $15,000.00, being it’s virile share (one-fifth) of the total award of damages due plaintiff. The other four defendants apparently settled with plaintiff prior to trial.

Plaintiff was severely injured when the car in which she was a guest passenger collided with a railroad train, owned and operated by the New Orleans Public Belt Railroad. The accident occurred at 3:30 a.m., September 30, 1973, at a grade crossing intersection on U.S. Highway 90 East (commonly known as Jefferson Highway) in the immediate vicinity of the Huey P. Long Bridge east traffic circle. The vehicle in which plaintiff was riding, being operated by Monroe J. Wolfe, Jr., was proceeding in an easterly direction on Jefferson Highway, in a steady rain, and had just started down the east side of the overpass over Clearview Parkway when, according to the plaintiff:

... well, right over the overpass ... going downhill and right when we got around that point, you could see something swishing, you know, and that’s when I hit him on the arm with my left arm and I told him, I said, ‘That’s a train. Stop.’ Well, by that time, he tried hard and he couldn’t stop, you know, we hit it.

The Louisiana Supreme Court, in addressing the question of negligence on the part of the Department, has stated:

It has been repeatedly stated that the department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time....
The duty to maintain reasonably safe highways and shoulders extends to the protection of those people who may be foreseeably placed in danger by an unreasonably dangerous condition. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), Rehearing Denied.

In Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App.3rd Cir.1974) writ refused 303 So.2d 182 (La.1974), our brothers of the Third Circuit expounded on the burden that a plaintiff must carry in order to prove the Department breached its duty of maintaining a safe highway and in order for liability to attach to the Department. The Court commented:

The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. Dupre v. Louisiana Department of Highways, 154 So.2d 579 (La.App.3rd Cir.1963); Mistich v. Matthaei, 277 So.2d 239 (La.App.4th Cir.1973); St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964).

See also Godwin v. Government Emp. Ins. Co., 394 So.2d 751 (La.App.3rd Cir.1981).

We agree with the principles laid down in the above-quoted authorities.

In attempting to establish negligence on the part of the Department, plaintiff relied on the testimony of Robert Lipp, who was qualified as an expert in civil engineering. Mr. Lipp testified that the distance from the top of the overpass to the crossing was 831 to 835 feet and that there was an “X” signal with a light 335 feet before the crossing. He further stated that his review of the police report (which was filed in evidence) of the accident indicated a 35 M.P.H. speed limit and that the flashing light signal was operating the night of the incident.

In Beal v. Kansas City Southern Railway Company, 291 So.2d 510 (La.App.2nd Cir.1974), the court states:

We are further in accord with the trial court’s finding that the cause of the collision was the excessive speed of the Beal vehicle under the circumstances. Rain had fallen prior to the time of the accident and the blacktop was wet. Beal admits to traveling between 50 and 55 miles per hour prior to applying brakes.
The evidence shows ... the crossbar warning sign ... was approximately 100 feet from the crossing. Additionally, the evidence shows a department of highway sign 475 feet south of the crossing warning motorists of its presence.
Although Beal testified he had not seen the train at the time he applied his brakes, he admits applying them at about the point of the department of highways sign and skidding into the train. He contends he was unable to stop because of the presence of mud on the blacktop. Skidmarks measured by the investigating trooper indicate Beal’s vehicle skidded 300 feet prior to the collision.
We conclude, as did the trial judge, that these factors indicate Beal did not take reasonable precautions under the circumstances in approaching the railroad crossing and his negligence was the sole cause of the accident.

The similarities between the Beal case and the case at bar are readily ascertainable, but what is more noteworthy are the differences. In Beal, one notes that the first warning sign was 475 feet from the crossing, the crossbar warning sign was 100 feet from the crossing, and there was a vehicle speed of 50-55 M.P.H. In the present case, it is noted that the top of the overpass (that point at which the crossing can first be seen) was over 800 feet from the crossing (almost twice the distance of the first warning sign in Beal), the “X” sign with the flashing light was 335 feet before the crossing (over three times as far as the crossbar warning sign in Beal), and the posted speed was 35 M.P.H. (considerably below the 50-55 M.P.H. of the Beal vehicle).

Mr. Lipp testified that, according to his calculations, a vehicle traveling at forty miles per hour (the now-posted speed limit) would require 881 feet in which to stop under the then prevailing weather conditions. This court is convinced that this estimate is in error. Mr. Lipp’s testimony was devoid of any foundation upon which his conclusion was based and, although he did testify that he “looked into” the stopping distances of automobiles, he failed to state the authorities into which he looked. Additionally, nothing in the record indicates any special knowledge on the part of Mr. Lipp in the field of automotive braking and stopping. Accordingly, we are satisfied that the record is devoid of any adequate evidence to show that the respective distances of 335 feet and 831 feet do not give a vehicle traveling at forty miles per hour (or 58.67 feet per second) ample opportunity to come to a safe stop before reaching the railroad crossing.

The record shows that plaintiff failed to introduce any evidence that the crossing was in need of repair or that the signal lights were either not functioning or malfunctioning at the time of the accident. The only evidence introduced by plaintiff which could possibly support a finding that there was a design defect or a hazardous condition at the grade crossing, is Mr. Lipp’s calculations, without foundation, which we have rejected hereinabove, and a statement by Mr. Lipp: “If it [the overpass] was placed over the tracks, certainly we would have avoided this accident and it would have been a much safer condition.” Obviously, this statement is self-evident and could be made of any railroad crossing in the state.

In its defense, the Department introduced an accident diagram sheet covering the period September 30, 1971 through September 30, 1972. The sheet indicates that during this one-year period covered by the report there was only one accident occurring at the crossing in question. As the Department pointed out in the evidence it presented, Jefferson Highway is a heavily-traveled roadway, with approximately 50,-000 vehicles per day using the overpass and railroad crossing. The occurrence of only one traffic accident at the crossing in the period of one year strongly suggests that the area of the highway in question is not only reasonably safe but exceedingly safe for any lawful or proper purpose.

Accordingly, we are of the opinion that the evidence and testimony before us simply does not sustain a finding that the railroad crossing at which the accident occurred was “patently or obviously dangerous to a reasonably careful and ordinarily prudent driver”, which is necessary to hold the Department of Highways liable. God-win, supra.

Therefore, for the reasons assigned, the judgment of the District Court is reversed insofar as it relates to the Louisiana Department of Transportation and Development.

REVERSED.