author: EDWARDS, Judge. LEAR, Judge,

text:
    Joseph STABLIER et ux v. CITY OF BATON ROUGE and Parish of East Baton Rouge.
    No. 13236.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    On Rehearing Jan. 26, 1981.
    Gary L. Keyser, Baton Rouge, for plaintiff-appellee, Joseph Stablier et ux.

      Frank J. Gremillion, Baton Rouge, for defendant-appellant, City of Baton Rouge and Parish of East Baton Rouge.
    Before ELLIS, COVINGTON, LOTTINGER, CHIASSON, EDWARDS, PONDER, LEAR, COLE and WATKINS, JJ.
   EDWARDS, Judge.

Plaintiffs, Joseph and Dorothy Stablier, brought suit against the City of Baton Rouge and Parish of East Baton Rouge seeking damages for injuries suffered by Mrs. Stablier when the ground in her yard suddenly collapsed beneath the lawn mower on which she was riding, throwing her off the mower and injuring her back. The collapse occurred under the grass located between the public sidewalk and street and was caused by a leak in the storm drain pipe underground which allowed dirt to be eroded and absorbed into the pipe and an underground chasm to be formed. Evidence at trial showed that the storm pipe facilities were in the possession of and under the control of the City-Parish.

The trial court found that while the hole into which Mrs. Stablier fell had not existed prior to the accident, nevertheless the City-Parish was liable since it had constructive notice of the defective drain pipe and should have conducted a continuous inspection plan.

Judgment was awarded to Mrs. Stablier in the amount of $5,000. Mr. Stablier was awarded $1,370.78 for medical expenses. Expert witness fees and interest were taxed against the defendants. From that judgment the City-Parish appeals.

The City-Parish bases its appeal on the ground that defendants had no notice of the defective storm pipe, whether actual or constructive.

Jones v. City of Baton Rouge, La., 388 So.2d 737 (1980), held that LSA-C.C. Art. 2317 applies to public bodies. Knowledge or notice of the existence of the defective storm pipe is, therefore, irrelevant.

The storm drain pipe was in defendants’ custody. That there was a leak and that a hidden chasm formed which resulted in Mrs. Stablier’s injuries is proof that the drain was defective. Marquez v. City Stores Company, 371 So.2d 810 (1979). The risk of falling into a hole while riding on presumably solid ground is clearly unreasonable. With these elements established, the City-Parish can only escape liability by showing that Mrs. Stablier’s injuries were caused by her own fault, the fault of a third person, or by an irresistible force. Loescher v. Parr, 324 So.2d 441 (1975). Because none of these defenses were proved, the City-Parish was properly found liable.

Under Loescher, a plaintiff had relatively few problems in proving that the thing causing damage was in defendant’s custody and that plaintiff was, in fact, harmed by the thing. Plaintiff’s real difficulty came in proving that the thing causing harm was defective. Marquez appears to have removed that difficulty and to have paved the yellow brick road to judgment.

In Marquez, the Supreme Court stated:
“The fact that this escalator caught this child’s shoe is an unusual occurrence in itself which would not have happened had this escalator not been defective . If this escalator were safe for small children with small feet, then James’ shoe could not have been caught in this opening.”

This line of reasoning virtually equates “unusual occurrence” with the presence of a defect.

We find this logic strained, at best. It is a far-reaching decision, even further tipping the scales in favor of plaintiffs and approaching absolute liability as a practical matter. Nevertheless, we feel bound to follow the reasoning. At least in the present case, we are confident that the City-Parish was truly at fault, even without the tortured analysis of Marquez.

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by the City of Baton Rouge and the Parish of East Baton Rouge.

AFFIRMED.

LEAR, J., dissents and assigns reasons.

LEAR, Judge,

dissenting.

This court has, apparently with some reluctance, followed Loescher v. Parr, Marquez v. City Stores Company, and Jones v. City of Baton Rouge (supra). I respectfully contend that the court has erred in its interpretation of these cases.

In Loescher, plaintiff’s automobile was destroyed when defendant’s tree fell across it. The Louisiana Supreme Court, accepting the factual holding that the tree was internally diseased and that the owner could not reasonably realize its defective condition, held defendant liable on the basis of C.C. art. 2317 which states as follows:

“C.C. Art. 2317.
“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things we have in our custody. This, however, is to be understood with the following modifications.”

The court further notes:

“We have previously adopted the concept of legal fault without personal negligence of a parent for the deficient act of his child (art. 2318), of an employer for the deficient act of his employee (art. 2320), of an owner for the damage caused through the deficient act of his animal (art. 2321) and of an owner for the damage caused by the defect of his building, (art. 2322).”

It was, therefore, only a short step to say that “Article 2317 embodies the concept of the legal fault of the guardian of a thing for the damage caused by the defect of [the] thing.” Thereafter came the' case of Gallien v. Commercial Union Ins. Co., 353 So.2d 1127 (La.App. 3rd Cir. 1977), writ refused February 17, 1978. In Galiien, plaintiff was injured when a manhole cover over a catch basin collapsed as she stepped on it. The court held that defendant who was custodian of the allegedly defective cover, was not liable, in absence of a showing of knowledge, actual or constructive, of the alleged defective cover. In distinguishing Galiien from Loescher, the court noted that the Supreme Court made no mention of the well established rule of law of actual or constructive notice being a prerequisite of tort liability where public bodies are concerned. The court was of the opinion that had the Supreme Court intended that Loescher be applicable in suits against public bodies, overruling the line of jurisprudence requiring actual or constructive notice, it could have done so in United States Fidelity and Guaranty Co. v. State of La., Dept. of Hwys., 339 So.2d 780 (La.1976), wherein it was observed, “Our finding of negligence and liability under La.C.C. art. 2315 makes it unnecessary for us to consider the applicability of La.C.C. art. 2317 as applied in our decision in Loescher v. Parr.”

In the case of The American Road Ins. Co. v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1977), plaintiff was injured as a result of a defective traffic light. The court citing Loescher v. Parr and U.S.F. and G. Co. v. St. Dept. of Hwys., held that the doctrine of strict liability as expressed in Loescher v. Parr was applicable. Writs were refused, 356 So.2d 430 (March 1978); 356 So.2d 435 (March 27, 1978). Later, in Durbin v. City of Baton Rouge, 366 So.2d 1020 (La.App. 1st Cir. 1978), the doctrine of strict liability was applied to a governmental agency when a tree limb fell on plaintiff’s car. Defendant did not apply for writs. In Hebert v. Town of Ville Platte, 373 So.2d 229 (La.App. 3rd Cir. 1979), suit was brought against the defendant for injuries sustained by plaintiff when a manhole cover became lodged in the undercarriage of plaintiff’s automobile. The court applied the doctrine of res ipsa loquitur, finding that the most plausible explanation for the accident was the lack of due care or the omission of some duty on the part of defendant’s employees who were charged with the duty of inspecting and maintaining the manhole cover properly positioned on the frame. Therefore, the court did not consider the effect of La.C.C. art. 2817 as explained in Loescher v. Parr. In a concurring opinion one judge was of the opinion Loescher v. Parr was applicable on the basis of C.C. art. 2317. Thereafter, in Joffrion v. Allstate Ins. Co., 374 So.2d 694 (La.App. 1st Cir. 1979), involving a traffic light malfunction the court again applied strict liability.

The articles establishing delictual responsibility in Louisiana are La.C.C. arts. 2315-2322. Traditionally, our courts have restricted the use of art. 2317 by construing it to be merely an introduction to the articles which immediately follow it and which required proof of negligence. In Cartwright v. Firemen’s Ins. Co. of Newark, N. J., 254 La. 330, 223 So.2d 822 (1969), involving an accident caused by defective brakes, the Supreme Court rejected the strict liability doctrine under art. 2317.

In Loescher, the court seemed to specify that before an owner-custodian of a thing can be held strictly liable the “thing” must present an unreasonable risk of injury to others. The court stated at page 446:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others ...”
“Fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others.” (Emphasis ours.)
“This jurisprudence recognizes that the injured person must prove the vice (i. e., unreasonable risk to others) in the person or thing whose act caused the damage, and that the damage resulted from this vice.”

This court in the case of Greene v. Catalytic Inc., et al, 341 So.2d 1172 (La.App. 1st Cir. 1976), writ denied 344 So.2d 4 (La.1977), involving a case where plaintiff tripped over an airhose lying on the floor and was injured held that:

“... the conduct of Fletcher (defendant) cannot be said to create an unreasonable risk of harm. While some risk may be created by an airhose on a shop floor, it is not an unreasonable risk and so there is no strict liability in this instance.”

However, in the case of Jones v. City of Baton Rouge, 376 So.2d 1003 (La.App. 1st Cir. 1979), at page 1005 this court followed American Road Ins. Co. v. Montgomery and rejected Gallien v. Commercial Ins. Co., applying the principles and interpretation of La.C.C. art. 2317 in Loescher. Under the facts of Jones v. City of Baton Rouge, the same result could have been reached by applying res ipsa loquitur as in Hebert v. Town of Ville Platte.

In Loescher, there was no question but that a vice or physical imperfection existed in the tree causing the injury which may lead us to require proof of a vice as well as proof that the defective thing created an unreasonable risk to others.

In strict liability, the plaintiff need not prove that the defendant acted unreasonably, but that the defendant failed to prevent an unreasonable risk of injury. In negligence, plaintiff must prove that the defendant acted unreasonably in not preventing the risk which caused the injury. Therefore, it would seem that in order to adopt strict liability we are not to be concerned with the acts of the defendant, but rather with the risk created by the thing causing the injury.

Loescher seems to require a determination that the risk created by the thing is unreasonable.

Inasmuch as a municipality is required to maintain a street and drainage system, it might be argued that the possibility of a cave-in caused by underground water or other natural causes does not create an unreasonable risk.

However, writs were granted by the Supreme Court in Jones v. City of Baton Rouge cited above and on September 3, 1980 (Sup.Ct. Docket No. 66,480) that court handed down its opinion which answers certain issues raised in the instant case.

One such issue is whether municipalities (or other public bodies) may be held liable for damages under C.C. art. 2317 caused by things in their custody. The court found that Article 12 § 10 of the 1974 State Constitution provides that “[n]either the state, a state agency nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” In view of this article the same tort law is applicable to all defendants. Another issue concerns requirement of knowledge by the defendant of a vice or defect in the thing in defendant’s custody. Generally, we may assume that a person cannot be guilty of negligence for failure to correct a defective situation if he has no knowledge of the defect. However, as stated by the court, “Where delictual responsibility is based not on negligence but on legal fault, under article 2317, a public body’s knowledge of the existence of the danger is irrelevant.”

Therefore, the question seems to be settled that Louisiana has adopted strict liability under C.C. art. 2317 and that it applies to governmental agencies.

The court also said that:
“Because the responsibility for preventing the unreasonable risk of injury to others is unconditional, the injured party seeking damages under article 2317 need not prove that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect.”

Once such proof is presented, the custodian can escape liability only by showing that the injury was caused by the fault of the victim, by the fault of a third person or by an irresistable force. The last mentioned defense, irresistable force, was described by Justice Tate in Loescher as “. . . an event which happens from an irresista-ble cause or force not foreseeable, usually in vis major or act occasioned exclusively by the violence of nature without the contribution by legal fault of any human.”

It should be noted that in Jones the court stated, “It is obvious that the [manhole] cover was defective, in the sense that the risk of falling four or five feet into a catch-basin as a result of stepping upon a presumably solid, firm metal surface is unreasonable.” Therefore, in Jones the defendant knew of the catch-basin and had a duty to properly protect others from a potentially dangerous situation.

In the very recent case of Hunt v. City-Stores, Inc., 375 So.2d 1194, (La.App. 4th Cir., 1979), writ granted 378 So.2d 433 (1979), amended and affirmed La., 387 So.2d 585 (1980) involving a twelve year old boy who was injured when his tennis shoe was caught in the space between the moving tread and the side panel of an escalator, the Supreme Court discussed this issue citing Loescher. Justice Watson, as organ for the court, stated:

“Although unreasonableness is a traditional standard for the determination of negligence, it is also fundamental to a finding of strict liability under LSA-C.C. art. 2317. In both negligence and strict liability cases, the probability and magnitude of the risk are to be balanced against the utility of the thing. The distinction between the two theories of recovery lies in the fact that the inability of a defendant to know or prevent the risk is not a defense in a strict liability case but precludes a finding of negligence.” (Emphasis added.)

The court compared strict liability to products liability, stating:

“Again, a balancing test is mandated: if the likelihood and gravity of harm outweigh the benefits and utility of the manufactured product, the product is unreasonably dangerous. If the product is unreasonably dangerous to normal use, the manufacturer is ultimately responsible to one injured in the course of that use.” (Emphasis ours.)

The court held that the escalator presented an unreasonable risk of harm in normal use.

In the instant case, neither the probability nor magnitude of the risk outweighs the utility of the drainage system. We are not here concerned with knowledge of the vice or defect, but with the likelihood or probability of such an injury occurring and the magnitude of such risk. The City of Baton Rouge is required to maintain a drainage system in the city and should not be liable under art. 2317 unless it is shown that an unreasonable risk has been created which injures another. The record does not disclose evidence of unreasonableness.

I respectfully dissent.

EDWARDS, Judge.

ON REHEARING

In our original opinion, we failed to consider whether plaintiffs were adequately compensated for their losses.

The trial court disallowed compensation for sums paid to Miss Starns, Connie Faber and Miss Downing on the ground that “Mrs. Stablier was not salaried, therefore, there was no loss of wages.” Sums paid for the maid services of Ruby Hilliard were disallowed because the trial court did “not find that these services were necessary.”

Folse v. Fakouri, 371 So.2d 1120 (1979), held that damages should be based on an injured person’s ability to earn money, rather than on what he actually earned before the injury.

Mrs. Stablier, though unsalaried, worked with her husband until she was injured, at which point paid employees were hired to replace her. Under Folse, this loss of earning capacity is clearly compensable.

Similarly, maid services were required because of plaintiff’s injuries and they are likewise compensable.

The uncontroverted evidence shows that plaintiffs incurred salary expenses of $6,199.02 and maid service expenses of $480.00. We find the award of general damages, claimed by plaintiffs to be too low, to have been reasonable.

For the foregoing reasons, it is hereby adjudged, ordered and decreed that the damages awarded are increased by $6,679.02. In all other respects, our original opinion is reaffirmed.

AFFIRMED AS AMENDED.

      . LSA-C.C. Art. 2317 provides:
      “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

      . So apparently do Justice Blanche and Justice ad hoc delaHoussaye. See their dissent in Hunt v. City Stores, Inc., La., 387 So.2d 585 (1980).


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    SUCCESSION OF Calvin Andrew REVERE. Karen S. Revere WILSON v. Roger D. REVERE.
    No. 13661.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Maurice J. Le Gardeur, Jr., Brady M. Fitzsimmons, Covington, for Karen S. Revere Wilson, appellant.
    Jack A. Blossman, Covington, for Roger D. Revere, appellee.
    Before LOTTINGER, PONDER and COLE, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment maintaining defendant as administrator of the succession of Calvin Andrew Revere.

The issues are the lack of notice to the provisional administratrix of defendant’s appointment and his eligibility as administrator.

We reverse and render.

Plaintiff, Karen Revere Wilson, the divorced wife of decedent and mother of his sole heir, obtained custody of her son, letters of tutorship and appointment as provisional administratrix for the purpose of instituting a Jones Act claim in behalf of her son. She failed to file a request for notice of the filing of an application for appointment of an administrator. Thereafter, defendant, Roger D. Revere, decedent’s brother and alleged creditor, secured an ex parte appointment as permanent administrator. Plaintiff petitioned to have defendant removed and to have herself appointed ad-ministratrix. After hearing the evidence on the qualifications of both parties, the trial judge maintained defendant as administrator.

Plaintiff claims defendant’s appointment as administrator is invalid because of the lack of notice to her. She relies on Succession of Schneider, 371 So.2d 1380 (La.App. 1st Cir. 1979) in which this court reversed the ex parte appointment of the permanent administrator when no notice of the application for permanent administrator has been given. We held plaintiff’s petition for appointment as provisional administratrix provided substantial compliance with the notice requirements of LSA-C.C.P. Arts. 3091 and 3092.

We decline to hold invalid the appointment of an administrator any time a provisional administrator fails to receive notice of such application. The purpose of the notice provisions is to give interested persons a voice in the selection of the administrator. Because plaintiff in this case participated in a contradictory hearing on the qualifications of defendant, albeit after his appointment, we find the failure of defendant to give her notice was not such error as to invalidate the appointment.

Plaintiff claims defendant is not qualified to be an administrator as he is neither the surviving spouse, heir, legatee, legal representative of an heir or legatee, a nominee of any of the foregoing or a creditor of the deceased. LSA-C.C.P. Art. 3097.

The record indicates defendant to be a creditor of the estate, rather than a creditor of the deceased. Holland v. Wheaton, 6 La. 443, 26 Am.Dec. 481 (1834). However, the removal of an administrator who may be disqualified can be within the discretion of the trial court. LSA-C.C.P. Art. 3182. Succession of Voland, 296 So.2d 406 (La. App. 4th Cir. 1974) writ denied 300 So.2d 184. This discretion must not be abused.

While there seems to be some concern in regard to plaintiff being appointed adminis-tratrix, nevertheless, defendant is not qualified under the terms of LSA-C.C.P. Art. 3097. Furthermore, the interests of the heir can be safeguarded by the supervision of the court in the minority proceedings.

We hold that the court abused its discretion in maintaining defendant’s appointment when there are others eligible and not disqualified.

For the above reasons, the judgment of the trial court is reversed and there is now judgment removing defendant as administrator and appointing plaintiff as adminis-tratrix. All costs are assessed against defendant.

REVERSED AND RENDERED.

      . LSA-C.C.P. Art. 3091:
      “An interested person desiring to be notified of the filing of an application for appointment as administrator, at any time after the death of the deceased may petition the court in which the succession has been opened, or may be opened, for such notice.
      “A petition for such notice shall comply with Article 3092, shall bear the number and caption of the succession proceeding, and shall be docketed and filed by the clerk in the record thereof.
      “When a petition for such notice has been filed within ten days of the death of the deceased, or prior to the application for appointment as administrator, the applicant for appointment shall serve the notice prayed for, as provided in Article 3093.”
      LSA-C.C.P. Art. 3092:
      “A petition for notice under Article 3091 shall not be effective unless it is signed by the petitioner or his attorney, and sets forth: (1) the name, surname, and domicile of petitioner;
      (2) a statement of the interest of the petitioner;
      (3) the name, surname, and mailing address of the person to whom the requested notice shall be given; and (4) a prayer that the requested notice be given.”

      . LSA-C.C.P. Art. 3097:
      * * * * * *
      “No person may be appointed dative testamentary executor, provisional administrator, or administrator who is not the surviving spouse, heir, legatee, legal representative of an heir or legatee, or a creditor of the deceased, or the nominee of the surviving spouse, heir, legatee, or legal representative of an heir or legatee of the deceased.”


author: LOTTINGER, Judge.

text:
    Mary J. BECKWITH, Individually and on Behalf of her Minor Daughter, Carolyn Lee Beckwith v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 13704.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.

      Gerald A. Stewart, New Orleans, George Scariano, Metairie, for plaintiff, appellant.
    Iddo Pittman, Jr., Hammond, for defendant, appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

The plaintiff brings this tort suit for personal injuries sustained by her 13-year-old daughter who cut her foot while visiting her aunt. From a trial court judgment finding a lack of negligence on the part of the defendant’s insured, the plaintiff brings this appeal.

The issue on appeal is whether the defendant’s insured, Mrs. Dorothy Johnson, was negligent in failing to warn her 13-year-old niece of the flooded and potentially dangerous condition of her yard prior to the time this accident occurred. This suit was filed as a direct action against State Farm Fire & Casualty Company by Mary J. Beck-with, who appeared individually and on behalf of her minor daughter, Carolyn Lee Beckwith.

The 13-year-old Carolyn attended a slumber party at her aunt’s house on or about December 20, 1976. Carolyn stayed at her aunt’s house on the day following the slumber party to help clean up. While she was washing the dishes, a box or bottle of dish-washing detergent fell from the sill of an open window above the sink to the ground below.

When Carolyn walked outside to retrieve the detergent, she noticed the wet and muddy condition of her aunt’s yard and removed her suede shoes to prevent them from being damaged. The detergent had fallen near a water pump outside the kitchen window. Surrounding this pump was a two foot wide and approximately six inch deep ditch which had been dug by Mrs. Johnson to keep the pump from flooding. The ditch was full of water, as was much of the rest of the yard. Carolyn testified that as she leaped across the ditch she slipped and her left foot went into the ditch. Her left foot was severely cut when she slipped. She testified that the object her foot landed on felt like a sharp piece of iron or metal, but a search for such an object by the aunt and others on the day following the accident turned up nothing.

At the trial, Mrs. Johnson testified that about three or four days before the accident she noticed “a piece of metal which at the time I thought it had a curvature and it looked something like, you know, like a toy wagon that had been rusted.” She says she saw this metal object somewhere in her yard. She did not attempt to retrieve the object because her yard was flooded “and I just didn’t bother to go out.” Although the aunt and others could find nothing which caused the gash on young Carolyn’s foot, the aunt testified that some four months after the accident she found part of a metal drum that “looked like it might have been” the same piece of metal she saw three or four days prior to the accident. Mrs. Johnson also testified that she did not warn the children attending the slumber party about the flooded condition of her back yard because “at the time I figured no one would be outside anyway.”

In written reasons for judgment, the trial court stated that Mrs. Johnson did not know or have reason to know that there was any “defect” in her yard prior to the accident which could have caused the injury to her niece. This factual conclusion is apparently incorrect in light of the direct testimony of Mrs. Johnson, who admitted on at least two occasions that she had noticed a piece of rounded metal in her yard some three or four days prior to the accident. The court expressly found that Mrs. Johnson was not negligent and apparently based its decision on the fact that the aunt was unaware of any conditions in her back yard prior to the accident that could have caused the injury. The trial court also seemed to find that young Carolyn was contributorily negligent since “the condition of the back yard was obvious to the young lady who was almost 14 years of age because she decided to take off her shoes prior to going after the detergent.”

A homeowner in Louisiana owes a duty to those present to make his or her premises reasonably safe. Carter v. Salter, 351 So.2d 312 (La.App. 3rd Cir. 1977), writ refused, 352 So.2d 1045 (La.1977). A homeowner has a duty to warn guests when there is an apparent danger foreseeably involving great risk of harm to the unwary. Dixon v. Allstate Insurance Company, 362 So.2d 1368 (La.1978).

Our review of the facts and circumstances of this case and of the law relative to negligence convinces us that Mrs. Johnson did not breach the duty owed to her guest on the premises. While it was certainly foreseeable that one of the attendants at the slumber party would venture outside into the flooded yard, Mrs. Johnson neither knew nor had reason to know of any apparent danger foreseeably involving great risk to the unwary which would have given rise to a duty to warn. Though Mrs. Johnson was aware of a curved piece of rusty metal in her yard, it is apparent from the testimony of the injured girl and from the type of cut received in this case that a sharp, jagged object and not a curved piece of metal caused the injury herein sued upon.

Additionally, the testimony is unclear as to where Mrs. Johnson saw the piece of metal prior to the accident and where she discovered what looked like the same piece of metal some four months after the accident. Also, a diligent search for the injury-causing object on the day after the accident turned up nothing. We are simply unable to tell from the testimony and evidence in this case what caused the injury suffered by the minor. The evidence certainly does not reveal that Mrs. Johnson breached her homeowner’s duty to keep her premises reasonably safe for those present, nor that she had a duty to warn of the flooded premises. Although the trial judge apparently erred in his finding of fact as to Mrs. Johnson’s knowledge of a piece of metal in the yard, this error did not result in an improper decision.

Conceding for the sake of argument that Mrs. Johnson breached the duty owed to her guest, we are convinced that young Carolyn was contributorily negligent in removing her shoes and attempting to jump the water-filled shallow ditch without knowing what danger lurked beneath the surface.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed. The appellant will bear the costs of this appeal.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Noel Hood REED v. DEPARTMENT OF PUBLIC SAFETY, OFFICE OF STATE POLICE.
    No. 13736.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Refused April 6, 1981.

      Michael W. Shannon and J. Michael Small, Alexandria, for appellant.
    James C. Dixon, Dept, of Public Safety, Baton Rouge, for appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Noel Hood Reed, a sergeant in the state police, was suspended and later terminated from his employment. The grounds were 1) that Reed persuaded a confidential informant to sign four cash vouchers in blank when, in fact, the informant received no monies, and that Reed subsequently cashed two of the vouchers for a total of $125.00, and 2) that while suspended, Reed used his position as a state policeman to influence an automobile dealer to lend him a car, theoretically for police work, but in fact for Reed’s personal use.

Reed appealed his firing to the Louisiana State Civil Service Commission which upheld the termination. Reed appeals.

A review of the record convinces us that there was sufficient evidence on which the Civil Service Commission could base its decision that the termination of Reed was proper. Evidence demonstrating Reed’s misrepresentations in acquiring the automobile is particularly overwhelming.

The Civil Service Commission decision appealed from is affirmed. All costs are to be paid by Noel Hood Reed.

AFFIRMED.


text:
    Ronald J. LOUVIERE v. The DEPARTMENT OF PUBLIC SAFETY, OFFICE OF STATE POLICE.
    No. 13737.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.

      Michael W. Shannon and J. Michael Small, Alexandria, for appellant.
    James C. Dixon, Dept, of Public Safety, Baton Rouge, for appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appeals from a judgment of the Civil Service Commission upholding his demotion.

The issues are: the sufficiently of notice to plaintiff of one of the charges against him, legal cause for his demotion, alleged violation of his First Amendment rights to free speech, and exclusion of evidence by the Civil Service Commission.

We affirm.

Plaintiff was demoted for violation of various procedural rules and regulations of the Department of Public Safety based upon the following incidents:

1. While attending a law enforcement class at Louisiana College, plaintiff made an unsolicited talk on the suspension and indictment of his superior officer and friend, expressing his personal support for his friend and criticizing the district attorney, the grand jury and the investigation.

2. Plaintiff lent his assigned state vehicle to another trooper for his personal use while aware that the trooper had been restricted to “duty use”.

3. Plaintiff accepted the use of a rent-free apartment in an apartment complex for a year in exchange for opening and closing the swimming pool. A procedural order required written permission for outside employment.

Plaintiff claims that charge “1” of his letter of demotion did not give him sufficient notice as required by Rule 12.3 of the Civil Service Commission.

We find the allegations contained in the demotion letter are sufficient to give plaintiff adequate notice of the charge against him. Shelfo v. LHHRA, Pinecrest State School, 361 So.2d 1268 (La.App. 1st Cir. 1978), writ denied La., 364 So.2d 122.

Plaintiff asserts that the content of his speech is not legal cause for his demotion. While there is conflicting testimony as to the substance of plaintiff’s remarks, the Civil Service Commission found that plaintiff, in a public classroom “... in the very least, cast doubt on the credibility of the State Police investigations, the actions of his superior officers, and the Grand Jury in the case of Ronald Stephens, which had not come to trial.” We find no manifest error.

Plaintiff contends that the demotion based on his speech is a violation of his First Amendment right to free speech. He claims Procedural Order No. 505.2, Section 1, Subsection B, Paragraphs 12 and 15, supra, are constitutionally overbroad and vague. Plaintiff cites Flynn v. Giarrusso, 321 F.Supp. 1295 (E.D.La.1971) in support of this contention.

In that case the court held unconstitutionally overbroad and vague very similar regulations of the New Orleans Police Department. Since that time, however, the United States Supreme Court has declined to find overbroad and vague language which sets out prohibitions on the activities and speech of public employees “.. . in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply without sacrifice to the public interest.” United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

We believe the challenged regulations reasonably apprise a person of the behavior expected of him, and therefore not unconstitutionally overbroad and vague.

Plaintiff claims the Commission erred in excluding evidence offered to show the loan of his state automobile was authorized by certain departmental exceptions. We feel his claim has merit. The record shows the loan was acknowledged as an exception by plaintiff’s superiors. For this reason the loan does not constitute cause for demotion.

Plaintiff contends the use of a rent-free apartment for a year in exchange for opening and closing the swimming pool was not employment so as to necessitate obtaining written permission. There is conflicting testimony as to plaintiff’s duties at the apartment complex. Although the Civil Service Commission is not bound by technical rules of evidence, only legally competent evidence can be considered by this court on review, Messer v. Department of Corrections, Louisiana State Penitentiary, 358 So.2d 975, (La.App. 1st Cir. 1978). Because the manager of the apartment was not a party to the agreement between plaintiff and the owner, we find her testimony as to plaintiff’s duties should not be considered. Even absent this testimony, however, we find an arrangement whereby a state trooper receives a rent-free apartment in an apartment complex in exchange for even minimal duties constitutes employment. By his own admission, plaintiff stated he would have stopped an altercation at the apartment if called upon. Even the checking and closing of the swimming pool has a relationship to security. We agree his failure to obtain written permission for this employment is legal cause for his demotion.

Plaintiff’s final contention that the demotion was based on his political beliefs or prompted by his friendship with former Captain Ronald Stephens is not supported by the evidence.

For the above reasons, the judgment of the Civil Service Commission is affirmed at appellant’s costs.

AFFIRMED.

      . “1. On October 17, 1978, while acting in your capacity as a Sergeant with the Louisiana State Police, you attended a class being conducted on the subject of ‘police community relations’. Other persons were in attendance, including law enforcement officers from other jurisdictions, not connected with the Office of State Police, Department of Public Safety.
      “Prior to this date you were well aware of an ongoing investigation being conducted by various law enforcement agencies into certain activities of Troop ‘E’ personnel, your assigned Troop. Furthermore, you were aware of disciplinary action having been taken against Captain Ronald Stephens, in the form of a suspension, and the appointment of an ‘acting Captain’ at Troop ‘E’. Also, you were aware of pending criminal indictments against Captain Stephens, those indictments having been returned by a properly impaneled Grand Jury, acting in and for the Parish of Rapides, State of Louisiana.
      “However, and despite complete knowledge of the foregoing, while in attendance at this class in public forum, you decided upon your own volition, to address the class regarding these circumstances. Your comments were explicitly directed toward the above, and were couched in terms of your total disbelief of their substance and that they should not have transpired, because they were done to further ‘personal vendettas’. Other comments were made, too voluminous to mention herein, but including comments about District Attorneys, Grand Juries, fellow officers of Troop ‘E’, all of a derogatory and disrespectful nature.
      “These impromptu remarks, regardless of motive or intention, are not in the best interest of the Office of State Police, Department of Public Safety.
      “In an interview with the Internal Affairs Unit of the Office of State Police, conducted on November 1, 1978, you confirmed the above factual incident.
      “Due to this, I find you have violated the following procedural rules and regulations of the Department:
      “A. Procedural Order Number 505.2, Section I, sub-section B, Paragraph 2, which states:
      ‘No member of the State Police shall interfere with an official investigation or with the operations of discipline of the Office of State Police.’
      “B. Procedural Order Number 505.2, Section I, Sub-section B, Paragraph 3, which states:
      ‘All members of the State Police shall treat as confidential the official communications and business of the State Police.’
      “C. Procedural Order Number 505.2, Section I, Sub-section B, Paragraph 12, which states:
      ‘Members shall at all times, either on duty or off-duty, conduct themselves in a manner so as not to discredit themselves or reflect discredit upon the Louisiana State Police.’
      “D. Procedural Order Number 505.2, Section I, sub-section B, Paragraph 15, which states:
      ‘No member of State Police shall directly or indirectly criticize or ridicule an official action of any member of State Police. Neither shall they criticize, directly or indirectly, the action or orders of any state official judge, or magistrate.’ ”

      . Civil Service Commission Rule 12.3:
      “In every case of removal, demotion or reduction in pay for cause of a permanent employee the appointing authority or his authorized agent shall furnish to the employee at the time such action is taken, or prior thereto, a statement in writing giving detailed reasons for such action. The appointing authority shall furnish the Director a copy of such statement within 15 calendar days of the date the employee is notified.”


text:
    Evie B. SYLVEST v. John YATES, Linda G. Jenkins and Southern Farm Bureau Casualty Insurance Company.
    No. 13739.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Delos R. Johnson, Jr. of Johnson & Kuhn, Franklin, for plaintiff.
    John N. Gallaspy of Gallaspy & Paduda, Bogalusa, for defendants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This wrongful death action arises out of an automobile accident which occurred on a rural road in Washington Parish. From a trial court judgment rejecting the demand of the plaintiff and the recon-ventional demands of the defendant, the plaintiff has perfected this appeal. The defendants neither appealed nor answered the plaintiff’s appeal, therefore the judgment dismissing their reconventional demands is final.

On April 10,1978, the plaintiff’s husband, Marshall Sylvest, made a left turn from an unfavored street onto State Highway 16. One of the defendants, Linda G. Jenkins, the driver of the other car, was headed in an easterly direction on Highway 16. Ms. Jenkins testified that the vehicle driven by the plaintiff’s husband was in her lane of traffic immediately prior to collision. Being unable to take to the shoulder on her side of the highway, Ms. Jenkins swerved her vehicle to the left and struck the vehicle driven by the plaintiff’s husband.

The trial court found as a fact in oral reasons for judgment that the plaintiff’s husband failed to exercise the requisite degree of caution in pulling out from an unfavored street onto the favored highway. The trial judge personally inspected the scene of the accident and found that the plaintiff’s husband should have exercised a greater degree of care in pulling out of what the trial judge termed a “blind intersection.”

The record in this case reveals ample support for the trial judge’s conclusion as to the cause of this accident. There certainly was no manifest error in that conclusion, and we therefore affirm. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed. The plaintiff will bear the costs of this appeal.

AFFIRMED.


text:
    George Joseph JAMES v. Nancy Blount JAMES.
    No. 13741.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      James H. Minge, New Orleans, for plaintiff-appellant.
    A. Russell Roberts, Metairie, for defendant-appellee.
    Before: LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment annulling his community property settlement with defendant.

The issues are: the use of parol testimony to effect a change in the date of signing of a judgment of separation; the effect of judicial admissions in defendant’s petition and the ratification of the community property settlement.

We affirm.

Plaintiff was awarded a judgment of separation on July 23,1976. He and defendant signed a community property settlement on that date. The settlement, which bears the purported date of August 23, 1976, was recorded August 26, 1976.

Two years later, defendant sued to annul the community property settlement on the basis of fraud and lack of consideration. At trial, a discrepancy between the date on the original judgment of separation, July 23,1976, and that on a certified copy of the judgment was noted. On the latter the July 23rd date had been crossed out and replaced with the date, August 24, 1976. The court granted judgment in favor of plaintiff maintaining the community property settlement.

After trial, however, a minute clerk informed the court that the judgment of separation had in fact been signed on August 24, 1976. Because of an error on her part, the original judgment of separation bearing the date of rendition, rather than the date of signing, had been filed. She had inserted the correct date of the signing of the judgment upon issuance of the certified copy. The court on its own motion thereupon ordered a new trial. The issues were limited to the date on which the judgment of separation was signed and the date on which the community property settlement was executed. After hearing testimony on the circumstances surrounding the signing of the community property settlement and considering the deposition of the minute clerk, the trial court nullified the agreement, on the ground that the parties were not legally separated at the time of its execution.

Plaintiff objected to the admissibility of parol evidence to impeach the date of the judgment of separation. The face of the record reflects an obvious clerical mistake. The minute entry for July 23,1976, does not reflect that the judgment was signed that day. A certified copy of the judgment bears a date contrary to the original.

The trial court may amend a judgment on its own motion to correct a clerical error that does not alter the substance of the judgment. LSA-C.C.P. Art. 1951.

Plaintiff objected to the use of oral testimony to contradict the August 24, 1976 date of the community property settlement. Both parties and plaintiff’s attorney, before whom the act of settlement was signed, testified the act was executed and signed on the date the judgment of separation was rendered. At that time the law prohibited such a contract between husband and wife. LSA-C.C. Arts. 1790, 2446. Pa-rol evidence may be used to establish the incapacity of a party to a contract in frau-dum legis. LeBlanc v. Bouchereau, 16 La. Ann. 11 (New Orleans, 1861); Smith v. Smith, 239 La. 688, 119 So.2d 827 (1960). The trial court was not in error in admitting the testimony to establish the incapacity of the parties.

Plaintiff further objected to the use of defendant’s testimony to contradict an alleged judicial admission in her petition to annul the community property settlement. He also claims he had no notice of a motion by defendant to amend the petition for correction of a typographical error.

Paragraphs numbers 2 and 3 of defendant’s petition read:

“2.
The parties hereto were judicially separated by a judgment rendered by this court in proceeding No. 36,154 signed on August 24, 1976.”
“3.
Thereafter, by act before John J. Williams, Jr., Notary of this Parish, dated July 20, 1976, the parties entered into a voluntary partition of the community property. A copy of the act is annexed as an exhibit, and its provisions are adopted here by reference.”

Plaintiff contends that two paragraphs when read together constitute a judicial admission that the settlement agreement was executed after the signing of the judgment of separation. Because of the obvious error on the face of the petition, it is doubtful that the paragraphs constitute such an admission. Be that as it may, the error was corrected by written motion submitted in open court in which the word “theretofore” in allegation 3 was substituted for the word “thereafter”. The record shows no objection to the correction.

Plaintiff finally contends that even if it is shown that the community property settlement was executed prior to the signing of the judgment of separation, defendant has ratified the agreement by her acts and omissions. Prior to the amendment to LSA-C.C. Art. 1790, (supra at footnote # 1) a property settlement between husband wife, entered into before the dissolution of the community, was a relative nullity, subject to ratification after the parties’ incapacity to contract was removed. LSA-C.C. Arts. 1790, 2272; Fisher v. Fisher, 261 So.2d 85 (La.App. 3rd Cir. 1972). Plaintiff contends defendant ratified the community property settlement agreement by the purchase of an automobile in her own name, with her own funds in reliance on the agreement.

The intention to ratify a notarial act not binding on a party must be clearly and unequivocally shown whether it is validated by a formal instrument or by its voluntary execution; such contention cannot be inferred. LSA-C.C. Art. 2272; Succession of Jenkins, 91 So.2d 416 (La.App. 2d Cir. 1956).

The evidence does not show the date on which defendant purchased the auto. We believe the evidence fails to show clearly and unequivocally that defendant purchased said auto after the settlement in reliance upon that agreement.

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

AFFIRMED.

      .LSA-C.C. Art. 1790:
      “Besides the general incapacity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as a husband and wife, tutor and ward, whose contracts with each other are forbidden; or in relation to the subject of the contract, such as purchases, by the administrator, of any part of the estate which is committed to his charge, and the incapacity of the wife, even with the assent of the husband, to alienate her dotal property, or to become security for his debts. These take place only in the cases specially provided by law, under different titles of this Code.”
      LSA-C.C. Art. 2446:
      “A contract of sale, between husband and wife, can take place only in the three following cases:
      1. When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.
      2. When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.
      3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.
      Saving, in these three cases, to the heirs of the contracting parties, their rights, if there exist any indirect advantage.”


text:
    DRYADES SAVINGS AND LOAN ASSOCIATION v. Frank LASSITER, Commissioner of Financial Institutions for the State of Louisiana and the Department of Commerce.
    No. 13742.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Edward J. McCloskey, New Orleans, for plaintiff-appellant Dryades Savings and Loan Association.
    Kenneth C. Dejean, Asst. Atty. Gen., Baton Rouge, for defendant-appellee Frank Lassiter, Commissioner of Financial Institutions for the State of Louisiana.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a declaratory judgment action seeking to have La.R.S. 6:852(C) declared unconstitutional as an illegal delegation of legislative authority in violation of the provisions of Louisiana Constitution Article 2, Section 2 (1974). To the plaintiff’s petition, the defendant filed an exception of no cause of action, contending that a previous decision of this court upholding the constitutionality of the statute controls this case and deprives the plaintiff of a cause of action. See First Federal Savings & Loan Association of Concordia Vidalia v. Smith, 327 So.2d 657 (La.App. 1st Cir. 1976), writ refused, 329 So.2d 431 (La.1976).

The trial judge sustained the exception of no cause of action, relying on Smith, supra.

We reverse. Our holding in Smith dealt with whether La.R.S. 6:852(C) was unconstitutional as a violation of due process. We did not decide the issue raised by the plaintiff in this case. Though in Smith we did state the trial court found one of the issues to be “whether LSA-R.S. 6:852(C) is unconstitutional * * * as an unlawful delegation of legislative authority,” at 327 So.2d 659, the text of the opinion discussing the constitutional issue was limited to a due process argument. 327 So.2d 660. Whether La.R.S. 6:852(C) unconstitutionally delegates to the Commissioner of Financial Institutions the power reserved to the legislative branch is a question that has not been addressed. We will therefore remand this case for proceedings consistent with the views expressed herein.

Therefore, for the above and foregoing reasons, the decision of the trial court is reversed. This case is remanded and costs will be assessed after the hearing in the trial court.

REVERSED AND REMANDED.


text:
    In the Matter of The SUCCESSION OF Irma Wilson REEVES.
    No. 13743.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Refused April 6, 1981.

      W. Hugh Sibley, Greensburg, Frank M. Coates, Jr., Baton Rouge, for intervenor-ap-pellant, Julius Wilson Cole.
    Bailey E. Chaney, Baton Rouge, for plaintiffs-appellees, Charles J. Cole, Jr., Charles J. Cole, III, Ruby L. Cole, Sally Ann Cole, Cathline S. Kitty Cole Ingram, Carmen H. Cole Delgado.
    Lee C. Kantrow, Baton Rouge, for trustee of the Irma Wilson Reeves Trust, Fidelity National Bank, appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Intervenor, Julius Wilson Cole, appeals a judgment denying him the status of principal beneficiary of certain property presently in trust. We affirm.

Irma Wilson Reeves died in Baton Rouge on April 30, 1976, leaving no forced heirs. By olographic will dated December 14,1962, she bequeathed an estate worth $799,065.93 to Julius Wilson Cole and Charles Julius Cole, Jr., nephews; Catherine Cole Petty, niece; and Cathline S. (Kitty) Cole, great niece.

Three particular legacies constitute eighty-four percent of the estate’s bulk:

1. Certain property located in East Baton Rouge Parish and worth $75,000 was left to Julius Wilson Cole and Catherine Cole Petty, share and share alike.
2. Certain property located in St. Helena Parish and worth $288,001 was also left to Julius Wilson Cole and Catherine Cole Petty, share and share alike.
3. Certain other property located in St. Helena Parish and worth $311,562 was left to Charles Julius Cole, Jr.

The dispositive provision leaving St. Helena Parish property to Charles Julius Cole, Jr., reads as follows:

“2. I give and bequeath to my nephew, Charles Julius Cole, the following to wit:
(a) Eleven hundred acres of land, more or less situated principally in ward 2, St. Helena Parish, Louisiana, being my part of the T.D. Lindsey place and what is known as the Charles C. Reeves pasture place on the highway between Greensburg and Liverpool.”

The three particular legatees favored by the above large bequests were also named residuary legatees:

“7 All of the rest of my property, real and personal, of which I may die possessed, I give and bequeath to Charles Julius Cole, Catherine Cole Petty and Julius Wilson Cole, share and share alike.”

By codicil dated December 1,1967, decedent modified her prior will as follows in pertinent part:

“I bequeath all of that land bequeathed to Charles Julius Cole to the Fidelity National Bank of Baton Rouge, La., but in trust. Charles Julius Cole shall be the income beneficiary of the trust and his children shall be the income beneficiaries of that trust after his death. The trust shall continue as to the interest of each of his children throughout the life of each child.”

The codicil contains no provision indicating decedent’s dispositive intentions regarding the property in trust at the conclusion of that trust.

By petition for declaratory judgment, plaintiffs, Charles J. Cole, Jr., and his children, Charles J. Cole, III, Ruby L. Cole, Sally Ann Cole, Cathline S. (Kitty) Cole, wife of Donald Ingram, and Carmen H. Cole Delgado sought a decree that the children of Charles J. Cole, Jr., were the principal beneficiaries of the testamentary trust.

Julius Wilson Cole, a residuary legatee, intervened and most vigorously urged that, as a residuary legatee, he, his heirs or assigns should be declared principal beneficiary of a one-third interest in the property composing the trust. The gravamen of in-tervenor’s claim was that by the codicil of December 1,1967, decedent revoked disposi-tive provision “2” of her will which had devised the St. Helena Parish property to Charles Julius Cole, Jr. Intervenor, as a residuary legatee, would be due a one-third interest in the thus undisposed of property.

The matter was submitted on briefs and the record. Subsequently, judgment was signed in favor of plaintiffs declaring Charles J. Cole, III, Ruby L. Cole, Sally Ann Cole, Cathline S. (Kitty) Cole Ingram and Carmen H. Cole Delgado, the children of Charles J. Cole, Jr., to be the principal beneficiaries of the Irma Wilson Reeves trust. The intervention was dismissed at Julius Wilson Cole’s cost. He appeals.

Appellant specifies that the trial court erred in 1) finding that the codicil did not revoke provision “2” of the will and 2) naming the children of Charles Cole as principal beneficiaries.

In brief, appellant stresses that decedent’s placing the St. Helena property in trust was a disposition of less than full ownership. Counsel argues that as a lesser disposition of the same thing, there is a presumed revocation of the former testament. Succession of Mercer, 28 La.Ann. 564 (1876), is cited as authority. We do not agree.

LSA-C.C. Art. 1693 states the conditions under which a posterior testament tacitly revokes prior ones.

“Posterior testaments, which do not, in an express manner, revoke the prior ones, annul in the latter only such of the dispositions therein contained as are incompatible with the new ones, or contrary to them, or entirely different.”

In the instant case, the only real question is whether decedent’s codicil is “incompatible with,” “contrary to” or “entirely different” from the original disposition.

Contrary to the contention of appellant’s counsel, there is no presumption that the establishment of a spendthrift trust necessarily revokes a prior bequest of the principal. In fact, there is a presumption, subject always to the testator’s intent, that a second bequest of the same thing is to be cumulated with the original bequest.

Succession of Mercer, supra, did hold that a certain legacy of 1000 pounds sterling was revoked by a later codicil leaving 500 pounds to the same legatee. Mercer also held that a legatee left the same legacy twice could not cumulate the bequests. Giving no explanation as to how it had divined decedent’s revocatory intent, the court simply opined:

“there was a confliction between the provisions of the two wills in regard to the amount of the legacy; the provision by the last will showing the intention to bestow upon the legatee five hundred pounds and not one thousand pounds.”

The Mercer court ignored prior jurisprudence and, without stating any cogent reasons, found a revocation. Mercer is not a correct statement of the law. Furthermore, the case has been both criticized and flatly overruled in part.

In Lyon v. Fisk, 1 La.Ann. 444 (1846), two successive wills made bequests of $5000 and $2500, respectively, to Joseph H. Lyon. Lyon was allowed to cumulate the bequests because decedent’s last words were “Keep both” and because “the law does not favor a repeal by implication, unless the repugnance be quite plain(.)”

In Succession of Stallings, 197 La. 449, 1 So.2d 690 (1941), repeated bequests of $5000 were made to Miss Martina Davey. Citing Lyon v. Fisk with approval, the court allowed cumulation. That the second bequest in Lyon was lesser than the first while the legacies in Stallings were of equal size was of no moment. Succession of Mercer, supra, and Robouam’s Heirs v. Robouam’s Executor, 12 La. 73 (1838), were distinguished as cases in which the second documents were found to have revoked the first.

In Succession of Homan, 202 La. 591, 12 So.2d 649 (1943), the effect of two codicils was at issue. The earlier codicil bequeathed thirty shares of homestead stock to Dell Sadler and twenty shares to Edna K. Gaudet. A later codicil bequeathed thirty shares of Security Homestead stock to Sadler and twenty shares in Guaranty Homestead to Gaudet. Citing Succession of Stallings with approval and overruling both Succession of Mercer and Robouam’s Heirs v. Robouam’s Executor, supra, at least as to the question of single or double legacies of the same amounts to the same legatees, the court permitted cumulation.

Appellant contends that Succession of Homan overruled Succession of Mercer only on the issue of identical legacies and that Mercer is still viable where, as in the present case, the second bequest is smaller than the first. As a technical matter, counsel is correct. It is clear, however, that Homan overruled Mercer to the limited extent it did because only the question of identical bequests had been raised. A complete overruling of Mercer would have involved mere dictum.

Even though part of Mercer has not yet been formally overruled, it is subject to the same criticism that resulted in a partial overruling. Essentially, no sound reasons were provided to justify the court’s finding of a revocatory intent on the testator’s part. In addition, the court in Mercer erroneously stated:

“Upon no sound principle of reasoning do we see, can it be maintained that where anterior or preceding testaments are not expressly and entirely revoked by subsequent ones all the provisions of all the testaments have effect, and that in such cases there is a cumulation of the legacies, as contended for by the opponents in this case.”

Such language flies directly in the face of Article 1693.

We believe the jurisprudence of Lyon v. Fisk, Succession of Stallings and Succession of Homan to be correct statements of the rule that cumulation is presumed. We have no doubt that Succession of Mercer is entirely unsound. Until the Supreme Court overrules Mercer in its entirety, it can be narrowly restricted to the facts of the case.

Our conclusion that there is a presumption of cumulation even where the second bequest is lesser is squarely in agreement with doctrine and the jurisprudence of other jurisdictions, some of which is noted below.

Page on Wills, Bowe-Parker Revision, 1960, section 58.3 states:

“If legacies are given by different instruments, as by a will and a codicil, or by two or more different codicils, and there, is nothing in the will or codicils to indicate that one gift is a repetition of the other, it will be presumed that such gifts are cumulative. This presumption exists even where the legacies are of the same amount, or where the legacies are similar though not the same, and is strengthened where the amount given in the second instrument is different from that given in the first. Such presumption is said to be based on the theory that the testator must have known of the first gift and would have provided for its revocation if he had desired such result, and the presumption is strengthened by language in the second instrument which shows that testator had in mind the gifts made in the first will.” (Footnotes omitted — emphasis supplied)

Thompson on Wills, 3d Ed., section 486 states:

“Where the same amount or sum of money is given twice to the same legatee by the same instrument, only one gift is presumed to have been intended; but two or more gifts are presumed to be cumulative where given by the same instrument if the amounts are different, or where the amounts are the same if given by different instruments; and where the amounts are different and given in different instruments, the presumption is stronger that they are cumulative. The general rule is that, when two legacies are bequeathed to the same person, one by the will and other by the codicil, and the testator has given both the legacies sim-pliciter, the courts in such cases, in the absence of extrinsic evidence, consider that, as the testator has given twice, he must prima facie be intended to mean two gifts; and it seems to be immaterial whether the legacies are of equal or unequal amounts, or whether they are of the same or different natures.” (Footnotes omitted — emphasis supplied)

In Dewitt v. Yates, 10 Johns. (N.Y.) 156 (1813), the court stated that cumulation was presumed and that the burden of rebutting the presumption fell on the party opposing same.

A will in Stultz v. Kiser, 37 N.C. 538 (1843), made residuary legatees of the heirs. A later codicil bequeathed $700 each to certain heirs. Cumulation was permitted.

In Appeal of Manifold, 126 Pa. 508,19 A. 42 (1889), fifty pounds per year was bequeathed by will. A subsequent codicil gave to the same legatee $100 per year, a lesser sum than fifty pounds. Finding no evidence that the codicil’s bequest was of a substitutionary nature, cumulation was allowed.

In Kemp v. Hutchinson, 110 S.W.2d 1126 (Kansas City Ct. of App., Mo. 1937), testator, by will, left fifty percent of his estate in trust for a brother-in-law. A later codicil giving $500 and some furniture to the brother-in-law was held cumulative and not substitutionary.

In re Cole’s Will, Sur., 215 N.Y.S.2d 796 (1961), involved a will bequeathing $1500 and a third codicil leaving $10,000. Citing Dewitt v. Yates, supra, the court found the bequests cumulative and noted that the presumption of cumulation was not overcome simply because the codiciliary bequest was greater.

The court, in In re Estate of Heppe, 440 Pa. 328, 269 A.2d 687 (1970), cited Appeal of Manifold, supra, and found two codicils, each for $5000, to be cumulative.

Appellant urges that LSA-C.C. Art. 1717 mandates a finding of revocation. We disagree. Article 1717 only applies when the quantity bequeathed is uncertain. Such is not the case here since the presumption of cumulation helps make certain the amount bequeathed.

Though a presumption of cumulation exists, that presumption, like all other rules for the interpretation of wills, is only a means to the end. Principally, courts must endeavor to ascertain the testator’s intentions and all rules of construction must give way in the face of proven intent. Carter v. Succession of Carter, La., 332 So.2d 439 (1976); Succession of LaBarre, 179 La. 45, 153 So. 15 (1934); Succession of Blakemore, 43 La. Ann. 845, 9 So. 496 (1891).

The testator’s intention must be ascertained from the whole will, and effect must be given to every part of the will as far as the law will permit. No part of a will should be rejected, except what the law makes it necessary to reject. Where there is a choice of interpretations, one of which will effectuate, and the other defeat, a testator’s intention, the court should interpret so as to carry out the testator’s wishes. Succession of LaBarre, supra.

These general principles, together with the rule of Civil Code Art. 1693, mandate that we interpret both the will and the codicil of decedent so as to effectuate both, unless the codicil is incompatible with, contrary to, or entirely different from the original bequest to Charles J. Cole, Jr., in which case the codicil would control.

In the original will, decedent carefully arranged for the distribution of her entire estate. Two nephews and a niece were the primary beneficiaries while one small legacy was left to a great niece. There is no doubt that decedent intended to give the eleven hundred acres of St. Helena Parish land to Charles J. Cole, Jr.

Decedent’s codicil created a spendthrift trust. That property, previously bequeathed to Charles J. Cole, Jr., was placed in a trust scheduled to last throughout the lives of Charles J. Cole, Jr., and his children.

There is not one shred of evidence in the codicil that decedent intended to entirely revoke her prior donation to Charles J. Cole, Jr. Since the codicil pointedly refers to the initial bequest, decedent’s continuing awareness of it is certain. Under those circumstances, her decision to create a trust while not expressly revoking the first donation can only be viewed as showing testatrix’ intent not to revoke the initial bequest but only to modify same. Page on Wills, supra.

The trust, established by codicil, merely prevented waste of the St. Helena property for two generations. Charles J. Cole, Jr., and his children were to receive all income benefits from the trust. Because the trust was to last for a specific period, it only is contrary to the original will for that period. LSA-C.C. Art. 1693.

Counsel for appellant urges that because the codicil limited plaintiffs’ rights at all, decedent intended to give less and therefore the original bequest must be considered revoked. Counsel erroneously ignores the trust’s limited time of existence which obviously curtails the degree to which the codicil is incompatible with the original bequest.

A deposition must be understood in the sense in which it can have effect, rather than that in which it can have none. LSA-C.C. Art. 1713. The original disposition to Charles J. Cole, Jr., was of property worth $311,562. Were appellant’s position adopted, some $207,708 in property would be redistributed to Julius Wilson Cole and Catherine Cole Petty.

The original bequest will be given far more effect by permitting the trust to expire and by delivering the corpus to whom it was originally bequeathed.

Appellant urges that Succession of McCrary, 246 So.2d 899 (La.App. 2d Cir. 1971), writs refused 258 La. 770, 247 So.2d 866 (1971), and 258 La. 777, 247 So.2d 869 (1971), controls. McCrary is simply not applicable. In that case, testator bequeathed all his property to his wife for “so long as she does live.” The appellate court held that the wife was due only a usufruct and that at her death, the estate was to be distributed by operation of law to her husband’s collateral heirs rather than to the wife’s descendants.

In the present case, the property at issue was bequeathed prior to formation of the trust. At the trust’s expiration, the property will be distributed as per the original bequest. The property is accounted for and is therefore not available to the residuary legatees.

Based on the law and evidence, plaintiffs must prevail. However, the correctness of our decision is verified by appellant’s own supplemental brief.

Both parties and the trial court agreed that this case was to be decided based on the will and codicil and without the aid of any extrinsic evidence. Plaintiffs, however, took the deposition of Catherine Cole Petty, one of the residuary legatees who stood to gain $103,854 if the original bequest were found revoked, and proffered the deposition. For some reason, the deposition was not included in the record as a proffer. In his supplemental brief, counsel for appellant quotes from the deposition and avers that:

“in effect, not only was Mrs. Petty’s deposition admitted, but her testimony formed the basis for the lower court’s decision. In short, the lower court permitted Mrs. Reeves’ property to pass in accord with hearsay testimony of a relative, which contradicted the express terms of the codicil.”

We do not know whether the trial court considered the deposition at all. Such appears unlikely, in view of the deposition’s absence from the record. Furthermore, that the trial court judgment was in accord with the deposition proves nothing except that the law and evidence mandated a result which happens to coincide with testimony given by the deponent.

Because declarations against interest by a declarant not a party to the suit are an exception to the hearsay rule, Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 (1972), and because appellant has so conveniently provided us with the pertinent part of the deposition of Catherine Cole Petty, we reproduce that part.

“Q. That bequest is mentioned again in what purports to be Mrs. Reeves’ codicil. What she says, T bequeath all of that land bequeathed to Charles Julius Cole to the Fidelity National Bank of Baton Rouge, Louisiana, but in trust.’ Did Mrs. Reeves ever discuss her will or codicil with you.
A. Yes, she did.
Q. Did she discuss it after Mrs. Imogene Cole died?
A. Before and after.
Q. Specifically, did she ever discuss with you this bequest to Charles Julius Cole?
A. Yes.
Q. And what did she say that she intended?
A. She intended leaving him this particular piece of property which she called the pasture place. It is a piece of property that she and her husband kept cattle on, it has been in the family since 1801 and I have ridden piggyback on her husband’s back many times over it and she always said that it was to be Charles’, she has always said that. I knew she had willed it to him, I wasn’t sure of that until — I don’t know, maybe after Mother’s death and I guess I had a little tinge of jealousy at the moment because I thought something that has been in the family that long, I wish I had just one acre of it, you know. Anyway, she intended it to be Charles’ and to be Charles' children and forever thereafter and not to be mine or anybody else’s at the death of his children.
Q. Now, she mentions him, Charles, as income beneficiary and then apparently mentions his children as income beneficiaries, can you state what her intention was, did she ever discuss it with you with reference not as to income but as to ultimate ownership of the land or the principal itself of the trust?
A. She intended it to go to Charles and his heirs from here on out. ”
(Emphasis presumably supplied by appellant.)

As a residuary legatee, Catherine Cole Petty has equal standing with Julius Wilson Cole. Despite the fact that failure to intervene might cost her $103,854, she chose not to and voluntarily testified that she knew decedent intended for the property at issue to go to Charles Julius Cole, Jr., and his family, rather than to her or intervenor, Julius Wilson Cole.

For the foregoing reasons, the trial court judgment is affirmed. All costs of the intervention and this appeal are to be paid by Julius Wilson Cole. All other costs are to be borne by the estate.

AFFIRMED.

      . Robouam’s Heirs involved two wills. The first left $500 each to A. and S. Lefebvre with a proviso that if only one should survive the testator, that legatee would receive $1000. A second testament made the same dispositive bequests but excluded the survival provision. Without explanation, the court found the second bequest merely repetitive and declared “it at least doubtful whether the testator intended a double legacy to each legatee.” The bequests were held substitutionary.

      . Art. 1717 provides:
      “If it can not be ascertained whether a greater or less quantity has been bequeathed, it must be decided for the least.”


text:
    Shelby L. WATSON v. Mark R. HAIK, d/b/a Farm and Country Realty.
    No. 13744.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      George P. Bevan, Baton Rouge, for plaintiff-appellee Shelby L. Watson.
    James H. Morgan, III, Baton Rouge, for defendant-appellant Mark R. Haik, dba Farm & Country Realty.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit for a real estate salesman’s commission against his broker. Defendant appealed from the judgment.

The issues are: the oral revocation or modification of the broker-salesman contract and estoppel of plaintiff to assert his claim. We affirm.

Plaintiff secured a listing for some property while employed by defendant broker as an independent sales contractor. After negotiations, in some of which defendant participated, plaintiff also obtained a purchase agreement. When the prospective purchasers refused to perform, defendant requested plaintiff to share in the expenses necessary to effect collection. Plaintiff said he was financially unable to participate in any legal action. Immediately thereafter plaintiff terminated the employment relationship. After suit was filed, defendant made a compromise settlement, whereupon plaintiff requested his share of the commission as listing and selling agent. Defendant refused and plaintiff filed suit. The trial court awarded plaintiff one-half of the commission less one-half of defendant’s legal expenses.

Defendant claims plaintiff’s refusal to participate in the case of the legal action constituted a revocation or a modification of his contract. The agreement between plaintiff and defendant provided:

“Expenses, which, must by reason of some necessity be paid from the commission, or, are incurred in the collection of, or in the attempt to collect the commission, shall be paid by the parties in the same proportion as provided for herein in the division of commissions.”
“13. * * * The rights of the parties to any commission earned prior to said notice shall not be divested by the termination of this contract.”
“14. When this agreement has been terminated for any reason the Salesman’s regular proportionate share of commission on any deals Salesman has made that are not closed shall be considered his property, and upon closing of said deals, said proportionate share of the commission shall be paid to him; and Salesman shall agree that all listings taken by said Salesman shall be exclusive property of FARM AND COUNTRY REALTY, and Salesman will relinquish any claims to any future commission on previously listed property.”

A written contract may be modified or nullified by mutual consent of the parties, LSA-C.C. Arts. 1901, 1945; Arceneaux v. Adams, 366 So.2d 1025 (La.App. 1st Cir. 1978). However, we do not read the contract to require payment of collection expenses in advance. Moreover, the testimony concerning plaintiff’s conversation with defendant as to his interest in the commission and his subsequent knowledge of the lawsuit and settlement is conflicting. The trial judge felt plaintiff’s inability or refusal to participate in the lawsuit was not intended to be a revocation of his property right in the commission. We cannot say there was error.

Defendant claims in the alternative that plaintiff is estopped from seeking a percentage of the commission by his own voluntary conduct and inaction in seeking to assert his claim until after the settlement.

Because equitable estoppel bars the normal assertion of rights, each element must be proven. These elements are: (1) a representation by conduct or work, (2) justifiable reliance thereon; and (3) a change in position to one’s detriment because of the reliance. American Bank and Trust Co. v. Trinity Universal Insurance Co., 251 La. 445, 205 So.2d 35 (1967); Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975).

Defendant asserts his settlement for lesser amount during negotiations constituted a change in position to his detriment in reliance on plaintiff’s representations. His attorney, however, listed several factors that influenced settlement; among these were the jurisdiction of the court, the absence of an important witness and the difficulty of appeal. Moreover, in view of the terms of the contract, we cannot hold that there was a representation of inaction or that there was justifiable reliance thereon. The plea of equitable estoppel was rejected and we find no error.

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

AFFIRMED.


text:
    Harold Glen SCOGGINS and Marie B. Scoggins v. Charles B. SMITH et al.
    No. 13746.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Joseph A. Gladney, Baton Rouge, for plaintiffs-appellants Harold Glenn Scoggins and Marie B. Scoggins.
    John I. Feduccia, Hammond, for defendants-appellees Charles B. Smith, Florida Parishes Recappers, Inc., Dameron-Jones Ins. Agcy., Inc. and Employer’s Reinsurance Corp.
    Robert L. Kleinpeter, Baton Rouge,- for defendants-appellees Dixie Auto Insurance Company and Aswell J. Robertson.
    Before LOTTINGER, EDWARDS and. PONDER, JJ.
   EDWARDS, Judge.

Plaintiffs-appellants, Harold Glenn Scog-gins and Marie B. Scoggins, seek a partial reversal and the amendment of a trial court judgment granting only part of their demands.

A careful examination of the entire record convinces us that the trial court’s findings of fact and reasons for judgment were correct. We adopt those findings of fact and reasons for judgment as our own. We affirm the trial court judgment in all respects except that the obvious typographical error in the “Judgment denying application for new trial with amendments,” allowing a credit of $94,000 instead of the proper $9,400, is hereby amended to read $9,400. All costs of this appeal are to be paid by Harold Glenn Scoggins and Marie B. Scog-gins.

AFFIRMED AS AMENDED.

      . Suit was originally filed under the name Harold Glen Scoggins. The plaintiffs actual name is Harold Glenn Scoggins.


text:
    Tommy R. McCRORY v. Earl C. ROCHESTER et al.
    No. 13747.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    John Michael Parker, Baton Rouge, Counsel for plaintiff-appellee Tommy R. McCro-ry-
    Daniel R. Atkinson, Baton Rouge, Counsel for defendants-appellants Earl C. Rochester and Truck Service, Inc.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a judgment awarding plaintiff damages received in a rear-end collision.

The issues are: negligence of defendant and the contributory negligence of plaintiff.

We reverse and render.

Defendant was operating a tractor-trailer rig loaded with 13" diameter heavy duty pipe which extended 9'9" beyond the rear of the vehicle in heavy late afternoon traffic on U. S. Highway 61, a four-lane blacktop highway. The weather was clear and dry. No warning flag was attached to the pipe. Maneuvering to execute a right hand turn into an unmarked gravel driveway, defendant put on his right blinker, slowed down and stopped in the right lane.

Plaintiff, traveling in the same lane in a van at the speed limit of 55 miles per hour approached the rig from the rear. From a distance of at least 100 yards behind the truck, plaintiff saw the right turn signal blinking. Because he saw no brake lights, plaintiff assumed the rig was only slowing down. He saw no warning flag and was unable to tell from that distance how far the pipe protruded beyond the rear of the rig, but knew the truck was carrying pipe. Maintaining the same speed, plaintiff put on his left blinker in anticipation of moving to the left lane. Another vehicle, a Trans-Am, passed plaintiff on the left and then moved into the right lane between him and the tractor-trailer rig. The vehicles continued in this formation approximately 15 to 30 seconds. Although plaintiff’s view was partially obstructed, he could still see the upper part of the rig. Suddenly the Trans-Am swerved into the left hand lane. Plaintiff, then approximately fifty feet from the rig, realized that it was stopped. He applied his brakes and attempted to swerve into the left lane, but was unable to do so. The right front roof corner of the van struck the pipe and was ripped off. The van was totally demolished, but, miraculously, plaintiff and his passenger suffered only comparatively minor injuries.

Plaintiff contends defendant was negligent in stopping on a heavily trafficked highway without displaying any brake lights or emergency flashers. He points out defendant could have pulled off onto a twelve-foot gravel shoulder. Defendant testified a right-hand turn necessitated his using a portion of the left lane. He had momentarily stopped to allow the traffic to clear before effecting his turn. We agree with plaintiff that defendant’s actions were a contributing factor in the accident and a breach of his duty to plaintiff. A tractor-trailer rig at a full stop, even momentarily, on a heavily travelled highway poses an extremely hazardous situation. Defendant, at a minimum, should have utilized his emergency flashers to warn approaching motorists.

Our conclusion obviates the necessity of considering the violation of the statute governing the display of flags on an overhanging load.

We find, however, that plaintiff’s recovery is barred by his own contributory negligence. LSA-R.S. Art. 32:81 furnishes the standard of care required of motorists following other vehicles. A following motorist who strikes a preceding motorist from the rear is presumed to have breached the standard of conduct prescribed in LSA-R.S. Art 32:81 and hence is presumed negligent. The burden then rests upon him to exonerate himself. Eubanks v. Brasseal, 310 So.2d 550 (La.1975). This we feel plaintiff has failed to do. The record shows that on a clear, dry day, plaintiff observed at least 100 yards ahead of him in the same lane, a fully loaded tractor-trailer rig at the least slowing down for a turn. He maintained his speed of 55 mph and his relative position in the right lane. Even when the Trans-Am darted in between plaintiff and the rig, he maintained his same speed and position. While there is conflicting testimony as to the traffic surrounding plaintiff, even conceding a vehicle may have blocked his rapid switch to the left lane, nothing prevented plaintiff’s slow braking in his own lane at the point at which he first observed the rig. Although plaintiff might not realize the truck was stopped, he did know that a tractor-trailer rig fully loaded with pipes was at least slowing in front of him on a busy highway. His failure to take precautionary measures, at a minimum slowly braking in his own lane, constitutes contributory negligence. He has not exonerated himself.

Because we find plaintiff contributorily negligent, we need not address the remainder of defendant’s claims.

For the above reasons, the judgment of the trial court is reversed. There is now judgment in defendant’s favor dismissing plaintiff’s claim at his costs.

REVERSED AND RENDERED.

      . LSA-R.S. Art. 32:81:
      “A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway. * *”


author: LOTTINGER, Judge. PONDER, Judge,

text:
    CLEGG CONCRETE, INCORPORATED, v. KEL-BAR, INC. and Donald Kenaly.
    No. 13748.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Refused April 6, 1981.
    Michael V. Clegg, Baton Rouge, for plaintiff-appellee Clegg Concrete, Incorporated.
    Edwin A. Smith, Jr., Baton Rouge, for defendant-appellant Donald Kenaly.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit to enforce a materialman’s lien arising out of construction of a swimming pool at a Baton Rouge residence. From a trial court judgment in favor of the plaintiff rendering a personal judgment against the defendant-owner, the defendant-owner brings this appeal.

At issue on appeal is whether the materi-alman’s lien was filed timely, and if it was, whether it sufficiently described the property-

This case was submitted to the trial court on stipulated facts. The defendant, Donald Kenaly, entered into a contract with the other defendant, Kel-Bar, Inc., for the purpose of constructing a swimming pool at Kenaly’s residence. Neither the contract nor a bond was recorded. The plaintiff, Clegg Concrete, Inc., under a subcontract with Kel-Bar, delivered materials to Kenaly’s residence from October 19 to October 23, 1978. The total cost of the materials amounted to $1,471.98, and the materials were used in construction of the pool.

On November 11, 1978, Kel-Bar left the job site and never returned. Kenaly’s attempts to get Kel-Bar back on the job were unsuccessful.

On January 26, 1979, Clegg filed a lien against Lot 474, Sherwood Forest Subdivision, with the municipal number noted as 12234. While the lien affidavit contains the correct municipal number, it does not contain the correct lot number. Kenaly owns lot 747 and not 474.

On February 20, 1979, Kenaly contracted with another pool construction company to finish construction of the pool. The job was completed on May 12, 1979.

Relying on authority from the Orleans and Fourth Circuit Court of Appeal, the trial court held the lien was valid because there was no indication that the owner abandoned the project. “To the contrary,” wrote the trial court, “it appears that he moved it forward towards its ultimate completion.” See Gueydan Lumber Yard v. Reinwald, 91 So.2d 39 (La.App. Orl.1957); First Wisconsin National Bank of Milwaukee v. Novem, Inc., 349 So.2d 370 (La.App. 4th Cir. 1977).

TIMELINESS OF THE LIEN

Under La.R.S. 9:4812, the provision of the Private Works Act applicable to this case, a materialman has a privilege on the property of the owner if a lien affidavit is filed in the mortgage records “within 60 days after the date of the last delivery of all material upon the said property, ... by the said furnisher of material.... ” Much of the confusion regarding timeliness of a lien under this provision could have been avoided had the courts interpreted the statute to mean that the 60 day period begins to run from the date of the last delivery of material by the materialman filing the lien. Our courts, however, have fairly consistently held that the 60 day period does not commence until at least the last delivery of material or last performance of labor by any materialman or laborer on the job. For example, see Rathborne Lumber & Supply Co. v. Falgout, 222 La. 345, 62 So.2d 507 (1952); Trouard v. Calcasieu Building Materials, Inc., 222 La. 1, 62 So.2d 81 (1952); National Homestead Ass’n v. Graham, 176 La. 1062, 147 So. 348 (1933); Lard Electric Company, Inc. v. Miller and Associates Construction Company, 267 So.2d 616 (La.App. 3rd Cir. 1972); McGill Corporation v. Dolese Concrete Company, 201 So.2d 125 (La.App. 1st Cir. 1967).

In cases in which the work is not completed, some courts have held that the time period does not start running until the owner abandons his hope of completing the structure. First Wisconsin National Bank of Milwaukee v. Novem, Inc., 349 So.2d 370 (La.App. 4th Cir. 1977); Louisiana Brick &

Tile Corporation v. Browning, 343 So.2d 311 (La.App. 2nd Cir. 1977); R. F. Mestayer Lumber Company v. Tessner, 101 So.2d 238 (Orl.La.App.1958); Singer Lumber v. King, 45 So.2d 567 (Orl.La.App.1950). This court in Cain v. Central Plumbing and Heating Company, 85 So.2d 376 (La.App. 1st Cir. 1956), expressed serious reservations about the “hope of completion test,” principally because such subjective criteria could lead to “an indefinitely lingering time within which to record liens to the possible unreasonable displacement of the rank of mortgages and other subsequent claims against the property.” 85 So.2d at 379. In the case at bar the owner could have waited a year before finding a new contractor or completing the work himself. But who is to say when a homeowner has abandoned his “hope of completion.” Obviously no one would want an unfinished swimming pool in his back yard. The absurdity of the subjective test becomes evident with each passing thought.

The Cain court interpreted Graham (the major Supreme Court case in this area) to mean that the 60 day lien filing period should commence when the last work is actually done on the contract. Such an “objective manifestation of the completion ... is a more reliable indicia of completion of the work . . . . ” 85 So.2d at 378. The Third Circuit in Lard Electric, supra, similarly held that the lien period commences 60 days after performance of the last labor or furnishing of the last materials “by any potential lienor under the same general contract . . .. ” 267 So.2d at 620.

In the case at bar, Clegg furnished materials to Kel-Bar through October 23, 1978. Kel-Bar halted work on November 11,1978. Although the stipulation concedes that the defendant Kenaly continued his hope of completing the project and indeed eventually obtained another contractor to finish the work, we are of the opinion that allowing Kenaly’s hope of completion to serve as the basis for when the 60 day period begins to run could lead to absurd consequences which were never intended under the Private Works Act. In a case in which one contractor defaults on his job and another contractor is later hired by the owner, materialmen and laborers for the first contractor should have 60 days from the date of the last delivery of materials or last performance of labor by any one under the same contract within which to file their liens. The same reasoning should hold true whether a contractor is involved or the job is self contracted. If there is an interruption in the work that exceeds the applicable lien period, then the lien must be filed timely counting from the date the last materials were delivered or labor performed prior to the interruption. Otherwise, the interruption could last indefinitely and absurdity would reign. As Judge, now Justice, Lemmon stated in Jeffers Trust v. Justice, 253 So.2d 234 (La.App. 4th Cir. 1971), “A claimant knows when he performs his services or delivers his materials, and he knows whether or not he has been paid. It is not necessary to a claimant, nor is it fair to an owner or mortgagee, to extend the beginning of the lien period far beyond the date of the last furnishing of materials, services or labor ... . ”

The first contractor in the case at bar defaulted on November 11,1978. Clegg had 60 days from that date to file its lien. Having failed to file the lien within that time, Clegg’s privilege upon Kenaly’s property was not preserved and the lien is invalid. Having so found, we do not need to decide whether the property description in the affidavit of lien was sufficient.

Judgment herein was a personal judgment against defendant-appellant. La.R.S. 9:4812 provides for a personal cause of action against the owner as follows:

“Any person furnishing service or material or performing any labor on the said building or other work to or for a contractor or subcontractor, when a contract, oral or written has been entered into, but no contract has been timely recorded, shall have a personal cause of action against the owner for the amount of his claim for a period of one year from the aforesaid recordation of his claim, which cause of action shall prescribe one year after the date of said recordation. This shall not interfere with the personal liability of the owner for material sold to or services or labor performed for him or his authorized agent.”

The personal cause of action is predicated on the recordation of a claim, meaning timely recordation as contemplated by the lien statute. Since we have held that the claim was not filed timely, it follows that there is no personal cause of action against the owner, and the judgment must be reversed.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed, and IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of defendant, Donald Kenaly, and against Clegg Concrete, Inc. dismissing plaintiff’s suit. All costs, both in this court and in the trial court, are assessed against plaintiff.

REVERSED AND RENDERED.

PONDER, J., concurs in the result and assigns reasons.

PONDER, Judge,

concurring.

I concur in the result.

However, giving heed to the admonition of the Supreme Court in Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978) that legislation is a primary source and cases a secondary source of law, I would hold that the lien affidavit would have to be filed “within 60 days after the date of the last delivery of all material upon the said property ... by the said furnisher of material....” Plaintiff last delivered material on October 23, 1978. I believe the statute to say that the lien affidavit, to be effective, would have to be filed within 60 days thereafter.

      . La.R.S. 9:4812:
      “When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection, or reconstruction, for the account of the owner, for which no contract has been entered into or when a contract has been entered into but has not been recorded, as and when required, the owner or his authorized agent may file an affidavit that the work has been completed, then any person furnishing service or material or performing any labor on the said building or other work may record in the office of the clerk of court or recorder of mortgages in the parish in which the said work is being done or has been done, an affidavit of his claim, which recordation, if done within sixty days after the date of the affidavit of completion or if no affidavit of completion is filed within sixty days after the date of the last delivery of all material upon the said property or the last furnishing of services or the last performance of labor upon the same, by the said furnisher of material or services or the said laborer, shall preserve a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have furnished service or material or performed any labor in connection with the said work or improvement, as his interest may appear. ****’’