author: LEAR, Judge.

text:
    William R. HICKS v. Jesse N. STONE, et al.
    No. 14970.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 21, 1982.
    Rehearing Denied Dec. 16, 1982.
    Writ Denied Feb. 11,1983.

      R. Judge Eames, Murphy W. Bell and Robert C. Williams, Baton Rouge, for plaintiff-appellant William R. Hicks.
    William J. Guste, Jr., Atty. Gen., State of La., Cassandra Simms, Richard Rudolph, Asst. Attys. Gen., Baton Rouge, for defendants-appellees Dr. Jesse N. Stone, Indiv., & as President of Southern University & The Bd. of Supervisors of Southern University: Rev. Lionel Johnson, Marie Mitchell Carter, Betty L. Washington, Pearlie Hardin Elloie, William N. Panter, Gerald T. Peltier, Donald Verrett, Rev. Brady L. Blade, Booker D. Harrison, Timothy G. Wade, Ray Oliver Wright, Walter C. Dumas, Robert L. Jones, Earnest Neighbors, Roscoe J. Moore, Russell Manuel, and Sheila Simmons.
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

Plaintiff-appellant, Dr. William R. Hicks (Dr. Hicks), was dismissed as Dean of the College of Education of Southern University by action of the Southern University Board of Supervisors taken at a meeting on April 22, 1978. Thereafter, Dr. Hicks sued Dr. Jesse N. Stone (Dr. Stone), who was the President of Southern University. Also made defendants were the Southern University Board of Supervisors (The Board) and the seventeen individual members of the board. In his suit, Dr. Hicks sought injunctive relief pursuant to LSA-R.S. 42:4.1, et seq. (the Louisiana Open Meetings Law) and damages against all defendants for defamation under La.C.C. arts. 2315 and 2315.1 and for damages for violation of his civil rights under Sections 1983 and 1988 of Title 42 of the United States Code. A trial of this cause was begun, and, at the close of Dr. Hicks’ case, all defendants moved for a directed verdict, which was granted by the trial judge in favor of the Southern University Board of Supervisors and each individually named member thereof. The trial judge, however, refused to grant a directed verdict in favor of defendant Stone, and plaintiffs defamation action against defendant Stone was submitted to the jury, which rendered a verdict in favor of plaintiff and against Dr. Stone in the amount of $5,000.00. Plaintiff has appealed the judgment granting defendants’ motion for directed verdict. In an answer to the appeal, Dr. Stone seeks reversal of the judgment rendered against him in accordance with the jury’s verdict.

Plaintiff specifies the errors of the trial court as follows:

1.The trial judge erred in denying in-junctive relief sought pursuant to LSA-R.S. 42:4.1, et seq.
2. The trial judge erred in granting defendants’ motion for a directed verdict.
3. The trial judge’s instructions did not fairly state the legal principles to be applied by the jury.

The facts are essentially these: Plaintiff for some time had been the Dean of the College of Education of Southern University and thus was responsible for the administrative and academic affairs of the College of Education, which encompassed the preparation for elementary and secondary teaching, elementary and secondary princi-palship and supervision, and the program in guidance. At the end of 1975, the Southern University College of Education was preparing to be examined by the National Council for Accreditation of Teacher Education (NCATE) with regard to its reaccredi-tation of programs at the baccalaureate level to prepare teachers for elementary and secondary school teaching. The College of Education also sought initial accreditation of its master’s degree level program for elementary and secondary teaching, elementary and secondary principalship and supervision, and the program in guidance. An NCATE team was scheduled to visit and review the Southern University College of Education in the spring semester of 1976. However, in January, 1976, Dr. Hicks informed an official of NCATE that the College of Education would not be prepared for the reviewing team to visit that semester and requested a postponement of the review until the fall semester of that year, which request was granted. An NCATE review was held during the fall semester of 1976 and by letter addressed to Dr. Stone, dated May 24,1977, NCATE advised Southern University of their decision to deny the College of Education reaccreditation to programs at the baccalaureate level and to deny initial accreditation at the master’s degree level. The university then availed itself of the NCATE appeal process, however, by letter from them to Dr. Stone, dated February 9, 1978, the university was informed that NCATE’s initial denial of reaccreditation at the baccalaureate degree level would be upheld, and that a denial of accreditation of the advanced programs would necessarily follow this decision.

Approximately two months after this loss of NCATE accreditation Mr. Roosevelt Steptoe, Chancellor of Southern University, wrote a letter to Dr. Stone with regard to the College of Education, in which he stated that:

“My assessment of the needs of the College of Education has led me to the conclusion that immediate action is necessary in providing new leadership for that important area. Accordingly, I am recommending that the services of Dr. William R. Hicks as Dean of the College of Education be terminated immediately. Dr. Hicks is a tenured professor in the College of Education and we expect his services as a teacher to be continued.”

At their April 22, 1978, meeting, Dr. Stone informed the Southern University Board of Supervisors of this situation. In this regard, the minutes of that meeting provide as follows:

“President Stone, at the request of the chairman, explained that he had received a letter from Chancellor Steptoe in which he had recommended that Dr. William Hicks’ services as Dean of the College of Education on the Baton Rouge campus be terminated immediately. The president indicated that he concurred in the recommendation because of the difficulties which developed in reference to the NCATE action, the fact that Dr. Hicks served as chairman of the Teacher Education Council, a governance unit of the College of Education, [sic] and as such had not called that group into session for three years. It was also revealed that there had been some correspondence between Dr. Hicks and NCATE in 1976 which was not shared with the administration until April, 1978.
“On motion of Mrs. Elloie, seconded by Mrs. Carter, Dr. Hicks was removed as Dean of the College of Education.
“A roll call vote produced the following: 12 yeas, 0 nays. Mr. Crosby’s yea vote was recorded but not counted.”

Thereafter, Dr. Hicks requested an opportunity for a hearing to present evidence in his behalf in order to explain his actions and to obtain reinstatement by the Board of Supervisors. Upon this request, a committee was appointed and a full hearing held, in which Dr. Hicks testified and presented other evidence in his behalf. Upon this evidence, this committee recommended to the Board of Supervisors that Dr. Hicks be reinstated. However, at the time the instant suit was filed by Dr. Hicks on April 20, 1979, approximately one year after his dismissal, no further action had been taken by the Board of Supervisors on its committee’s recommendation, nor had the Board officially acted to either reinstate Dr. Hicks or confirm their prior dismissal of him.

The first issue presented by plaintiff concerns the denial by the trial court of an injunction pursuant to LSA-R.S. 42:4.1, et seq. (the Louisiana Open Meetings Law). The basis of plaintiff’s action seeking in-junctive relief under these statutory provisions was that, after suit had been filed and during pretrial discovery, plaintiff was informed that a private, informal vote of The Board was taken with regard to the committee’s recommendation to reinstate Dr. Hicks, and that The Board, by a vote of nine to six, with two members not voting, decided not to reinstate Dr. Hicks. However, this secret “decision” not to reinstate Dr. Hicks was never made public, not taken by The Board at a properly called or conducted meeting and, thus, was in no way an official action of The Board. In fact, as we will discuss below, one of Dr. Hicks’ main complaints was that The Board refused or failed to take official action on its committee’s recommendation to reinstate him.

Thus, since The Board, in fact, took no final or official action pursuant to its secret vote, we find that the trial court was correct in denying Dr. Hicks injunctive relief.

The appellant contends that the trial court committed error by dismissing his civil rights action under 42 U.S.C. 1983, et seq., against the Board and the individual members thereof on a motion for directed verdict pursuant to La.C.C.P. art. 1810. The appellant first contends that he is entitled to maintain this civil rights action because he was deprived of a property right, his position as Dean of the College of Education, by the State without due process of law because he was not given a hearing prior to his dismissal from that position. The law applicable to this allegation is set forth in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 2708-9, 33 L.Ed.2d 548 (1972), as follows:

“The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests — property interests — may take many forms.
* * * * * *
“Similarly, in the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, and college professors and staff members dismissed during the terms of their contracts, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle ‘proscribing summary dismissal from public employment without hearing or inquiry required by due process’ also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment. Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772, 1773, 29 L.Ed.2d 418. “Certain attributes of ‘property’ interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
“Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law_rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.... ”
(Emphasis added).

The record shows that the appellant was appointed by the Board as a Dean and Professor of the College of Education for the 1977-78 fiscal year at a salary of $24,-082.00. This appointment was “subject to applicable policies and regulations of the Southern University Board of Supervisors....'” The appointment as Professor of the College of Education at a salary of $24,082.00 was a tenured appointment. The appointment as Dean of the College of Education was not tenured. The applicable policies and regulations provided that the appointment as Dean was at the pleasure of the Board. After the appellant was dismissed as Dean, he retained his appointment as Professor of the College of Education and his salary of $24,082.00 was not reduced.

Since the appellant served as Dean at the pleasure of the Board, he had no express or implied promise of continued employment in that position. Because the appellant did not have a legitimate claim of continued entitlement to the position of Dean of the College of Education pursuant to the express conditions of his employment, he did not have a property interest sufficient to require the Board to give him a hearing prior to his dismissal. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Brown v. Hirst, 443 F.2d 899 (4th Cir.1971); Hodgin v. Noland, 435 F.2d 859 (4th Cir.1970); Patterson v. Ramsey, 413 F.Supp. 523 (D.Md.1976), affirmed 552 F.2d 117 (4th Cir.1977); Hirsch v. Green, 368 F.Supp. 1061 (D.Md.1973).

The appellant also contends that he is entitled to maintain his civil rights action because he was deprived of a liberty right since he was not given a pre-termination hearing when he was dismissed with criticism from his position of Dean of the College of Education. The law applicable to this allegation is set forth in Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 1100-1101 (9th Cir.1981), as follows:

“The liberty protected by the due process clause of the fifth and fourteenth amendments encompasses an individual’s freedom to work and earn a living. Thus, when the government dismisses an individual for reasons that might seriously damage his standing in the community, he is entitled to notice and a hearing to clear his name. Board of Regents v. Roth, supra, 408 U.S. at 573 & n. 12, 92 S.Ct. at 2707 & n. 12; e.g., Goss v. Lopez, 419 U.S. 565, 575, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975). To implicate constitutional liberty interests, however, the reasons for dismissal must be sufficiently serious to ‘stigmatize’ or otherwise burden the individual so that he is not able to take advantage of other employment opportunities. Board of Regents v. Roth, supra, 408 U.S. at 573-74, 92 S.Ct. at 2707-08; see Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971) (charges reflecting on ‘good name, reputation, honor, and integrity’).
“This court has described the stigma that infringes liberty interests as that which ‘seriously damages a person’s reputation or significantly forecloses his freedom to take advantage of other employment opportunities .... ’ Jablon v. Trustees of California State Colleges, 482 F.2d 997, 1000 (9th Cir.1973) (emphasis added), cert. denied, 414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974). Subsequent panels have set the boundary of liberty interests at accusations of ‘moral turpitude,’ such as dishonesty or immorality — i.e., charges that do not reach this level of severity do not infringe constitutional liberty interests. See, e.g., Stretten v. Wadsworth Veterans Hospital, 537 F.2d 361, 365-66 (9th Cir.1976); Gray v. Union County Intermediate Education District, 520 F.2d 803, 806 (9th Cir.1975). See also Board of Regents v. Roth, supra, 408 U.S. at 573, 92 S.Ct. at 2707. Thus, in both Stretten and Gray it was held that dismissal for reasons of incompetence and inability to ‘get along’ with co-workers did not infringe liberty interests. 537 F.2d at 366; 520 F.2d at 806; accord Weathers v. West Yuma County School District R-J-1, 530 F.2d 1335 (10th Cir.1976).”

In his letter to President Stone, Chancellor Steptoe recommended that the appellant be terminated as Dean of the College of Education in order to provide new leadership in that important area. In making his presentation to the Board, President Stone agreed with Chancellor Step-toe’s recommendation because of the actions of the NCATE in withholding accreditation, the fact that the appellant did not call a meeting of the Governance Unit of the College of Education for three years, and because the appellant did not reveal some of the correspondence between himself and the NCATE to the administration for an extended period of time. The record amply demonstrates that the appellant was removed as the Dean of the College of Education because the Board believed that he was an ineffective administrator and improperly performed his duties as Dean of the College. These allegations are not accusations involving moral turpitude, such as dishonesty or immorality, sufficiently serious to “stigmatize” the appellant. As hereinafter indicated, these statements do not constitute defamation under the tort law of Louisiana. The actions of the Board and its members did not burden the appellant so that he could not take advantage of other employment opportunities. He remained as a tenured Professor of the College of Education and his salary was not reduced. At the time of the trial, the appellant was employed as a tenured Professor of Education at a salary of $32,000.00 per annum and was head of the Teacher’s Corps at a salary ■of $7,400.00 per annum, for a total salary of $39,400.00. The action of the Board and its individual members did not infringe upon the appellant’s liberty interests. It should be further noted that, in any event, the appellant was granted a full hearing before a committee appointed at his request and was given an opportunity to defend himself and present evidence in his own behalf.

Under all of these circumstances, the trial court’s directed verdict dismissing the appellant’s civil rights action against the Board and its members was correct and is affirmed.

An essential element of defamation is the publication or communication of words or some statement. Dr. Hicks has alleged no statement by the Board or its individual members, but rather, bases his defamation action against them on their action in terminating him. We find that the Board’s action in terminating Dr. Hicks is not in itself the communication of words or a statement concerning Dr. Hicks. Thus, Dr. Hicks having failed to prove an essential element of his defamation action against the Board and its individual members, the trial court was correct in granting them a directed verdict.

With regard to the statement to the Board by Dr. Stone, we find that Dr. Hicks is a public official, or at least a public figure, with regard to his involvement with the university and, as such, must prove actual malice in order to recover in his action for defamation. Gerz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed. 789 (1974); New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,11 L.Ed.2d 686 (1964). Actual malice has been defined as being a knowing falsity or a reckless disregard for the truth or falsity of the statement. Gertz v. Robert Welch, Inc., supra; New York Times Company v. Sullivan, supra.

We find that Dr. Stone was aware of the NCATE denial of reaccreditation to the College of Education and also of their (the NCATE’s) finding that Dr. Hicks, as chairman of the Teacher Education Council, a governance unit of the College of Education, had not called that group into session for three years. Dr. Stone also testified that he had at that time become aware of certain correspondence in 1976 between Dr. Hicks and NCATE, with regard to the matter of réaccreditation. The record, including the testimony of Dr. Stone and others and the letters written by Chancellor Step-toe, Dr. Hicks and NCATE officials, clearly shows that, in light of the circumstances, Dr. Stone reasonably believed in the truth of his statements to the Board and his statements were clearly not made in reckless disregard of their truth or falsity.

While Dr. Hicks alleges that Dr. Stone’s statements, and his concurrence in the recommendation to terminate Dr. Hicks, were based on problems at Southern University’s Ville Platte facility, we find that the record does not support this contention. The Ville Platte facility, and whatever problems it was experiencing, were not the basis of the NCATE denial of reaccreditation. No mention of the Ville Platte center was made by Dr. Stone to the Board and his concurrence was not predicated on the situation.

We find that Dr. Hicks failed to prove the essential element of malice and therefore the jury’s verdict against Dr. Stone finding defamation was manifestly erroneous and should be reversed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the foregoing reasons, the judgments of the trial court refusing to grant the plaintiff injunctive relief and granting the directed verdicts dismissing the defamation claim and the civil rights action under 42 U.S.C. 1983, et seq., against the Board and its members are affirmed. The judgment of the jury in favor of the appellant and against the defendant, Stone, in the sum of $5,000.00 for defamation is reversed and judgment is hereby rendered dismissing appellant’s defamation claim against the defendant, Stone. All costs in the trial court and this court are to be paid by the appellant.

AFFIRMED IN PART, AND REVERSED AND RENDERED IN PART.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    John L. DOUGHTY, Plaintiff-Appellant, v. TOWN OF TULLOS, Defendant-Appellee.
    No. 82-260.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Patrick L. Durusau, Jena, for plaintiff-appellant.
    Jimmie C. Peters, Jena, for defendant-ap-pellee.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal presents the legal issue of whether a “dry” area becomes a “wet” area when the “dry” area is annexed by a municipality which had previously voted itself “wet” for the sale of beverages of high alcoholic content.

John Doughty filed a declaratory judgment suit against the Town of Tullos (Tul-los) seeking to have an annexed area, which had been voted “dry” prior to annexation, declared “wet” for the sale of beverages of high alcoholic content. Tullos had denied Doughty’s application for a permit to sell such beverages. Doughty and Tullos filed motions for summary judgment which were consolidated for hearing. The basic facts were stipulated as follows:

Doughty is a resident of an area which was annexed by Tullos and which area had been voted “dry” prior to the annexation. Tullos, pursuant to a local option election, had previously voted itself “wet” allowing the sale of beverages of a high alcoholic content. An ordinance was adopted pursuant to that election. Doughty is the lessee of premises located in the annexed area and applied for a permit to sell beverages therein of a high alcoholic content. Tullos denied Doughty’s permit.

After a hearing, the trial court granted the motion for summary judgment filed by Tullos, dismissing Doughty’s suit. Doughty appeals. We affirm.

The issue on appeal is whether the annexation of the “dry” area had the effect of converting the annexed property into a “wet” area.

The thrust of Doughty’s argument is that the issue is resolved by LSA-R.S. 33:179 which provides as follows:

“Where the corporate limits of municipalities have been extended or enlarged as hereinabove provided, the annexed territory, the inhabitants thereof, and the owners of property therein shall enjoy as to themselves and their property all the rights, immunities, and privileges granted and enjoyed by all the citizens of the municipality to which the territory has been annexed.”

Counsel insists that this provision has the effect of converting the “dry” annexed area into a “wet” area when it was brought into the municipality of Tullos. As we consider the general rule of other states, the jurisprudence of this state and the reasons therefor, we must disagree with Doughty’s position.

The general rule of other states is set forth in 25 A.L.R.2d 864 § 2 as follows:

“Because the theory of local option laws is that the people of a political or governmental unit shall have the right to determine their status, and the correlative right to change it, according to the provisions of those laws, a status once adopted is usually considered to attach to the territory which was originally bound by the vote, and to remain operative, unless lawfully changed, notwithstanding changes for other purposes in the designation, boundaries, or organization of the unit.
“It has, therefore, become a general rule that a designation, division, reassignment, reorganization, increase, diminishment, or abolition of a political or governmental unit, the people of which by election have adopted a local option status, does not affect the operation of a local option law in any of the territory originally bound by the election.” (Citations of other states omitted.)

This general rule was followed in the early case of Hughes v. Parish Council, 48 So.2d 823 (La.App. 1st Cir.1950). In Hughes, Ward 4 of East Baton Rouge Parish voted itself “dry” in a local option election held in 1937. In 1948 the people of East Baton Rouge Parish adopted the city-parish form of government and established new wards in the parish. Ward 4 no longer existed after this reorganization. Ward 4 was merged with previously “wet” wards to become the new Ward 2 of the Parish of East Baton Rouge. Plaintiff sought a permit to sell beer in the new Ward 2 in an area which had previously been in old, “dry,” Ward 4. Plaintiff contended that, because of the reorganization, old Ward 4 was no longer in existence insofar as the effect of the referendum was concerned, and it (old Ward 4) had lost its identity and became “wet” as it was merged with “wet” wards.

The court held that the old Ward 4 area retained its “dry” status even though it was merged with “wet” wards into a new Ward 2. The court reasoned as follows:

"... It is hardly conceivable that the Legislature of the State of Louisiana would grant to the people of the various political subdivisions, a right by ballot to create dry territories and at the same time, vest in the Police Jury a right to wipe out this exercise of the ballot by the simple procedure of redistricting the parish. The redistricting of the ward lines for the Parish of East Baton Rouge was done without any mention whatsoever as to the local option question and we do not think that the Police Jury of a parish can take it upon itself and negative a vote on local option by exercising its right granted it by changing and rearranging ward lines. In a case of this kind, we do not think that a prohibitory law such as that in question here, voted upon and adopted by a ward can be repealed or defeated in its operation by any subsequent act of the governing authorities of the Parish of East Baton Rouge, by a simple change of boundaries of an election district or ward....”

The court came to this conclusion after reviewing the general rule adopted by a majority of the cases from other states.

In the case of Blanchard v. Gauthier, 248 La. 1107, 184 So.2d 531, 534 (1966), the same basic facts were presented as those in Hughes; i.e., the merger of wards in East Baton Rouge Parish. The Supreme Court, affirming the Court of Appeal conclusion that the “dry” Ward 10 which was merged with “wet” wards retained its “dry” status, reiterating the general rule set forth herein from 25 A.L.R.2d 852, and concluded as follows:

“Our research of authorities has disclosed that the vast majority of cases from other states ... have followed the general rule and, at this time, we perceive no valid reason for departing from this rule.” (Footnote omitted.)

In the case of Davis v. Caldwell Parish Police Jury, 331 So.2d 872 (La.App. 2nd Cir.1976), writ ref’d, 334 So.2d 434 (La.1976), the court held that a “dry” area merged with “wet” areas, in the reapportionment of wards, remained “dry.” The court cited and followed Blanchard, supra.

The most recent case on the subject matter was handed down by this court in the case of Froeba v. State, Dept. of Public Safety, 369 So.2d 727 (La.App. 3rd Cir.1979), writs den., 371 So.2d 615 (La.1979). The City of Natchitoches annexed a portion of Ward 1 of Natchitoches Parish. The City, by referendum, had voted “dry” in a prior election. In a parish-wide local option election, the parish had voted “dry” which included Ward 1. The Police Jury adopted an Ordinance 542 prohibiting the sale of alcoholic beverages containing more than one-half of one per centum of alcohol by volume. The plaintiffs, lessees, of a place of business called “The Town House,” applied to the Alcohol Beverage Control for a state permit to sell beverages of high alcoholic content after the annexation. Plaintiffs contended that the Police Jury ordinance, prohibiting the sale of such beverages, adopted on November 17,1943, pursuant to the parish-wide referendum, was invalid by virtue of the subsequent enactment of the Revised Statutes of 1950 which contained the following provision:

LSA-R.S. 26:582 read as follows:

“Upon petition of not less than twenty-five percent of the qualified electors residing in any parish, ward, or any incorporated municipality the governing authority shall order a referendum election to be held to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages, shall be conducted and licensed therein.
“This election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward. No such election shall be held on a parish wide basis or for any subdivision other than the ones above mentioned.[]
“No such election shall be held for the same subdivision oftener than once in every two years.”

Plaintiffs argued that this statute rendered the Police Jury Ordinance 542 invalid. This court held that the ordinance was an exercise of local option law on a parish-wide basis, in contravention of LSA-R.S. 26:582, as it existed prior the amendment of 1974, and was declared invalid. As a result of the holding that the local option election and ordinance was invalid, the portion of Ward 1 which was annexed was “wet” at the time of annexation. Following the Blanchard case, this court then held that the “part of Ward One of Natchitoches Parish which was annexed to the city retains its status as a ‘wet’ area.”

As we review this jurisprudence we conclude that LSA-R.S. 33:179 does not support the contention of Doughty. To paraphrase our brethren on the First Circuit in Hughes, it is hardly conceivable that the Legislature would grant to the people of the various wards a right to create “dry” territories by special local option elections and, at the same time, vest in municipalities a right to repeal or defeat this exercise of the ballot by the simple procedure of annexation. We hold that a municipality cannot negative a vote on local option by exercising its annexation authority. In a case of this kind, a prohibitory law such as that in question, voted upon and adopted by a ward, cannot be repealed or defeated of its operation by any subsequent act of annexation by the governing authority of an adjacent municipality.

We note that the Legislature shares our understanding of the general rule that changes in boundaries do not affect the status of an area previously determined by a local option election. The Legislature has adopted special statutes which provide that when an area is annexed into a ward, municipality or city-parish government having a population of 100,000 or more, the annexed portion shall take on the legal sales characteristics of alcoholic beverages of the annexing authority. Were it not the recognized rule that an annexed area retain its “wet” or “dry” status as determined by its last local option election, these special statutes would be unnecessary.

In the case at hand, the “dry” area annexed by “wet” Tullos, remains “dry” until it is changed by an election. The judgment of the trial court will be affirmed.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

      . In 1974, this paragraph was amended to allow a parish-wide election. We are not concerned with the 1974 amendment in this case.

      . LSA-R.S. 26:582.1 and 26:603.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. John Curtis LANDRY, Defendant-Appellant.
    No. CR82-577.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 18, 1982.
    John Curtis Landry, pro. per., Herman Mouton, Jr., Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

Defendant, John Curtis Landry, pleaded guilty to a charge of simple burglary on June 22, 1982, and was sentenced to four years with the Department of Corrections.

This appeal was filed in this Court on September 30,1982, and on October 7,1982, an Order to Show Cause was issued ordering defendant to show on or before October 22, 1982, why his appeal should not be dismissed as having been untimely perfected under LSA-C.Cr.P. art. 914.

This article requires:

“A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion must be made no later than fifteen days after the rendition of the judgment or ruling from which the appeal is taken. The motion shall be entered in the minutes of the court.”

This appeal has not met the requirements of this article. Defendant prepared a handwritten motion for an appeal which is dated July 15, 1982; however, the record does not reflect when it was filed. On August 3, 1982, the trial judge signed the order for an appeal. Defendant’s counsel did not participate in the above process, nor has he answered the order to show cause.

Even giving defendant the benefit of the doubt that the motion for defendant’s appeal may have been received by the Fourteenth Judicial District Court Clerk’s office on July 15,1982 (as defendant was incarcerated across the street in the Calcasieu Parish jail and someone might have hand delivered it), that is still beyond the 15-day requirement of Art. 914.

Inasmuch as this appeal was untimely perfected under the requirements of the Louisiana Code of Criminal Procedure, this appeal will be dismissed.

APPEAL DISMISSED. UNTIMELY FILED.

      . LSA-C.Cr.P. art. 914 was amended by Acts 1982 No. 143 to become effective September 10, 1982. However, this appeal came under the provisions of Art. 914 before it was amended.


author: GRISBAUM, Judge.

text:
    Kathleen AUSTEN v. Wallace SHERWOOD, Cavalier Insurance Company, Mississippi Press Register, Inc. and Liberty Mutual Insurance Company.
    No. 5-318.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Feb. 17, 1983.

      Perrin C. Butler, Metairie, Leonard J. Cline, Jefferson, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Thomas M. Nosewicz and Madeleine Fischer, New Orleans, for defendants-appellants.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   GRISBAUM, Judge.

Plaintiff/appellee, Kathleen Austen, filed suit against Wallace Sherwood and Cavalier Insurance Company, Sherwood’s automobile liability insurer, seeking to recover for injuries and damages sustained in an automobile accident. She later joined as defendants Mississippi Press Register, Inc., Sherwood’s employer, and its insurer, Liberty Mutual Insurance Company, who appeal the judgment of the trial court which found Sherwood was in the course and scope of his employment at the time of the accident. We reverse.

Sherwood was employed as an advertising accounts executive by Mississippi Press Register which publishes a newspaper in Pascagoula, Mississippi. He also held a position as “arts editor” for which he wrote a column about various events in the world of art, theater, and general entertainment. As arts editor, Sherwood was invited to attend the Louis Armstrong concert which was a part of the annual New Orleans Jazz and Heritage Festival. He attended the concert and left with a friend who offered him a place to spend the night in the New Orleans area. He planned to make the trip back to Pascagoula early in the morning in a fresh condition. Sherwood was driving to his friend’s house on the Westbank Expressway in Jefferson Parish. He testified his attention was distracted from the road by his friend who was attempting to give him directions. He rear ended the appellee who had stopped for a traffic light.

The collision occurred on April 11, 1978 and plaintiff filed suit on September 27, 1978. The trial was held on February 23, 1981 and judgment was rendered on August 18, 1981 in favor of appellee and against defendants in the amount of $116,059.30. This judgment was subsequently amended to cast Sherwood and Cavalier Insurance Company for $10,000, the limits of Cavalier’s policy, and to cast Mississippi Press and Liberty Mutual for the balance of $106,-059.30. Neither Sherwood nor Cavalier Insurance Company appealed the judgment. Mississippi Press and Liberty Mutual appealed and plaintiff answered their appeal seeking $50,000 increase in her award.

The issue on appeal is whether Sherwood was acting within the course and scope of his employment with Mississippi Press Register at the time of the collision. The trial judge, in his reasons for judgment, was satisfied by the testimony at trial and by the depositions introduced into evidence that the defendant, Wallace Sherwood, was acting within the course and scope of his employment. The trial judge stated that although Mr. Sherwood did attend the concert partly for personal reasons, that fact did not mean his attendance was not in the course and scope of his employment.

However, although Mr. Sherwood may have attended the concert within the scope of his employment, the accident occurred on his way to a friend’s house to sleep for the night. The negligent acts of an employee on his way to or from work are not generally imputable to an employer under La.C.C. art. 2320. Boudreaux v. Yancey, 319 So.2d 806 (La.App. 1st Cir.1975). The inquiry is whether the employee’s tor-tious conduct was so closely connected in time, place and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. Daniels v. Conn, 382 So.2d 945 (La.1980). In the instant case Sherwood was clearly on his own time which in no way benefited his employer nor was related to the service of his employer. Cain v. Doe, 378 So.2d 549 (La.App. 4th Cir.1979). The accident did not occur within the course and scope of Sherwood’s employment. Therefore, the judgment in favor of appellee Austen and against the Mississippi Press Register, Inc. and Liberty Mutual Insurance Company must be reversed.

The amended judgment limited the liability of the remaining defendants, Sherwood and Cavalier Insurance Company, to $10,000. The trial court granted the amended judgment on motion of defendants who stated Cavalier should not have been cast in solido with the other defendants as its liability was limited to the terms of its policy with Sherwood. However, the trial court went further and also limited Sherwood’s liability. La.C.C.P. art. 1951 does not permit a trial court to alter the substance of a final judgment. The limit of the tort-feasor’s liability from $116,059.30 to $10,000 is a substantive change. Therefore, the amended judgment is annulled.

For the reasons assigned, we find Sherwood liable for $116,059.30 and Cavalier Insurance Company is liable for $10,000 of that amount.

REVERSED.


text:
    Joseph CASHIO, Jr. v. J.M. HOLT, et al.
    No. 5-198.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Feb. 17, 1983.

      Law Offices of Daniel E. Becnel, Jr., Daniel E. Becnel, Jr., Reverve, for plaintiff-appellee.
    A. Justin Ourso III, New Orleans, for defendants-appellants.
    Before SAMUEL, KLIEBERT and GRISBAUM, JJ.
   GRISBAUM, Judge.

In this defamation suit, appellee, Joseph Cashio, Jr., filed suit against his employer, Godchaux-Henderson Sugar Company, Inc., a- subsidiary of The Great Western Sugar Company and two of its employees for damages resulting from alleged publication of his termination letter. The trial judge awarded Mr. Cashio $200,000.00. The issues on appeal are whether appellee proved the essential elements in a defamation action. We reverse.

Joseph Cashio, Jr. started work with God-chaux-Henderson in July of 1950. He was promoted to various positions until his final promotion on January 1,1978 to transportation supervisor. Serious problems existed in the transportation department concerning trucks both before and during Mr. Ca-shio’s term as supervisor. At times trucks were late or would not show up at all. By May of 1978, Mr. Davan, vice president of corporate services for Great Western, felt it necessary to send a man to assist Mr. Cashio in obtaining timely truck deliveries. One account in particular depended upon timely shipments of sugar to their stores. When the deliveries were not made on time, the account was lost. On the same day the account was lost, Mr. Davan instructed Mr. Holt to terminate Mr. Cashio’s employment. Mr. Cashio, shocked at being fired after twenty-seven years and ten months of service, requested a letter from Mr. Holt explaining the reason for his termination. He was subsequently given the letter written by James Holt informing him he was terminated for “dereliction of duties.” Copies of the letter were given to six top managers with Great Western Sugar Company. An employee of Godchaux-Henderson saw a copy of the letter on a file cabinet in the personnel office. Also, two secretaries with Godchaux-Henderson saw a copy of the letter lying on a copy machine in the administration building.

Appellee filed suit on June 28, 1978 against his supervisor, James Holt, and Clarence Davan, and Godchaux-Henderson Sugar Company, Inc., a subsidiary of The Great Western Sugar Company. Trial was held on May 13-14,1981. On July 10,1981, the trial judge signed a judgment awarding Mr. Cashio $200,000.00 against Godchaux-Henderson, Mr. Holt, and Mr. Davan, in solido, for injury to reputation, loss of public confidence, mental anguish and humiliation, and loss of opportunity to seek employment.

The essential elements of a defamation action are:

(1) defamatory words; (2) publication or communication to some person other than the one defamed; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Carter v. Catfish Cabin, 316 So.2d 517 (La.App.2d Cir.1975); Madison v. Bolton, 234 La. 997, 102 So.2d 433 (1958). The threshold issue is whether the words are defamatory, that is, capable of a defamatory meaning. Carter v. Catfish Cabin, supra. If the words are defamatory on their face — defamatory per se — falsity and malice are presumed and the defendant has the burden of rebutting the presumption. Carter v. Catfish Cabin, supra. Words are defamatory when they have a “tendency to deprive [a person] of the benefits of public confidence or injure him in his occupation ... or [have] a natural tendency to injure the person’s reputation.” Madison v. Bolton, supra, Makofsky v. Cunningham, 576 F.2d 1223 (5th Cir.1978). When the words themselves have those results, even without considering extrinsic facts and surrounding circumstances, they are defamatory per se. Makofsky v. Cunningham, supra.

Publication was indisputably made to managers of Godchaux-Henderson Sugar Company. However, a publication may be privileged. The essential elements of a conditional privilege are “good faith, an interest to be upheld and a statement limited in scope to this purpose, a proper occasion, and publication in the proper manner and to proper parties only.” Madison v. Bolton, supra. Publication of the letter to the managers and supervisors of Great Western Sugar Company was privileged. There was a valid business interest in informing the said parties of Mr. Cashio’s dismissal. Joseph Metzler was vice president in charge of corporate affairs at Reserve at the time of the termination. Brian Duhe was personnel manager at Godchaux-Henderson and B. Beard was personnel manager of Great Western. P. Adolph was legal advis- or to the company and Ferdinand Becnel, as administrative manager for Godchaux, was in charge of payroll and benefits. Mr. Da-van, who ordered the termination, also received a copy of the letter. Thus, all concerned were proper parties to be informed of the termination. Each was informed in the proper manner, being hand-delivered a copy of the letter.

Although publication to the other parties who saw the letter was not privileged, there is no liability for publication which the defendant did not intend and could not reasonably anticipate. Prosser, Law of Torts 4th ed. (1971). A company employee testified that he was leaning on the file cabinet in the personnel office when he saw the letter and read it. We find that it was not unreasonable to have a copy of the termination letter on top of a file cabinet in the personnel office.

Two people testified that they saw the termination letter on the copy machine in the administration building. Vivian Syl-vestre, dispatcher and secretary for Joseph Cashio at Godchaux-Henderson, testified that a few days after Mr. Cashio left the job, she went to use the copy machine and found a copy of the termination letter. She said up until that time she knew he had been terminated but did not know the reason. She stated the letter had the God-chaux-Henderson letterhead. The other woman with Ms. Sylvestre at the time, Ms. Eble, testified she did not recall what type of paper the letter was on. The evidence indicates that Mr. Cashio was the only one to receive a letter with the letterhead on it. Mr. Cashio testified that when he received his termination letter, he went directly to his attorney’s office and left the letter there until trial. However, two other women testified that Mr. Cashio showed them his letter after the day of his termination. Thus, the weight of the evidence failed to establish that Godchaux-Henderson employees, rather than Mr. Cashio, left the termination letter on the copy machine.

The trial judge adopted a memorandum of the appellee as his reasons for judgment. In this memorandum, it states that the testimony of these two women who claimed to have been shown the letter by Mr. Cashio should be viewed “with skepticism since it appeared that they were forced to testify by company personnel ...” While it is true these women appeared subsequent to a request by their employer, there is nothing in the record to indicate that the context of their testimony was in any way dictated or forced by their employer. Thus, the trial judge, in accepting the argumentative memorandum of counsel as his reasons for judgment, did not adequately weigh the evidence introduced at trial. We find that there was no publica-' tion to any unprivileged parties by God-chaux-Henderson or the other named defendants.

Because the essential element of publication was not proven, we need not address the elements of defamatory words, falsity, malice, and resulting injury. For the reasons assigned, the judgment of the trial judge is reversed.

REVERSED.


text:
    ROYAL OLDSMOBILE CO., INC. v. Ann Roberts YARBROUGH and Ross T. Scaccia, Sometimes Known as Ross Scassia.
    No. 5-215.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Feb. 17, 1983.

      Edwin A. Stoutz, Jr., New Orleans, for plaintiff-appellant-appellee.
    R.T. Scaccia, New Orleans, for defendant-appellee-appellant.
    Before SAMUEL, KLIEBERT and GRISBAUM, JJ.
   GRISBAUM, Judge.

Royal Oldsmobile Co., Inc., appellant, brought suit against Ann Roberts Yarb-rough, and Ross T. Scaccia, appellee, for the non-payment of the purchase price of an automobile. The issues on appeal are whether Mr. Scaccia was a purchaser of the automobile so that a vendor’s privilege exists in favor of Royal Oldsmobile Co., Inc. and alternately whether the theory of unjust enrichment should apply. We affirm.

Early in 1977, Mr. Scaccia performed legal services for a young man who was arrested and was being prosecuted in Orleans Parish. Mr. Scaccia contacted the man’s father and step-mother in California and was told by the step-mother, Mrs. Yarb-rough, to take care of the legal problems and he would be well-paid for his efforts. Mrs. Yarbrough came in from California for the sentencing hearing and after the proceedings were over she told Mr. Scaccia she intended to buy him a new car in payment of his legal fee.

On September 30, 1977 Mrs. Yarbrough and Mr. Scaccia went to Royal Oldsmobile and, after looking at several cars, picked out a 1978 Oldsmobile Delta 88. Mr. Scac-cia states he was not involved in the selection of the car other than insisting on having power windows. He was present for negotiations over the price of the car between Mrs. Yarbrough and the salesman who testified that Mr. Scaccia participated only by commenting on whether he felt the price was a fair one. Mr. Scaccia signed a document titled “Retailer Buyer’s Order” which he states he had to sign to get delivery of the car.

Mrs. Yarbrough wrote a check on a California bank for $8,220.00, the full purchase price of the car. The general sales manager testified it was customary procedure to verify an out-of-town check. Although a banker in California told the manager Mrs. Yarbrough was a “well-to-do” woman, the check was not verified. Royal Oldsmobile accepted her check but after repeated efforts, it was not honored by the California bank. Mr. Scaccia aided Royal Oldsmobile in locating Mrs. Yarbrough and obtaining criminal charges against her. A warrant was issued for her arrest. The attorney for Royal Oldsmobile spoke with an attorney in California who agreed to send a check for $4,600.00 if the arrest warrant was withdrawn. The warrant was withdrawn and the check was received. However, no more money was forthcoming.

Suit was filed against Mrs. Yarbrough and Mr. Scaccia on June 26, 1978. Mrs. Yarbrough did not answer the suit and judgment was rendered against her by default. Trial was held on October 29, 1979. On July 28, 1981 a judgment was rendered 'in favor of plaintiff, Royal Oldsmobile Co., Inc., against defendant, Ann Roberts Yarb-rough, and in favor of defendant, Ross T. Scaccia, and against plaintiff, Royal Oldsmobile Co., Inc.

In addressing the initial issue, a vendor’s privilege on movables exists according to Civ.Code art. 3227 which states:

“He who has sold to another any movable property, which is not paid for, has a preference on the price of his property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser.
So that although the vendor may have taken a note, bond or other acknowledgment from the buyer, he still enjoys the privilege.” ...

Therefore, for the vendor’s privilege to exist the property would have to remain in the possession of the purchaser.

Mr. Scaccia is not a purchaser. He did not undertake to buy a car and pay the purchase price. Rather, he agreed to accept the car in payment of a sum which was due him by Mrs. Yarbrough. La.Civ.Code art. 2655. The fact that Mr. Scaccia was present at the dealership to help select the car and had the title put in his name was the most practical way for Mrs. Yarbrough to give him a new car to his liking. Because Mr. Scaccia agreed to receive a ear in payment of the debt in no way obligated him personally to pay the purchase price. Therefore, no vendor’s privilege exists on the car as it was no longer in the hands of the purchaser, Mrs. Yarbrough.

The second argument of appellant’s is likewise without merit. An essential requisite for unjust enrichment is that no other remedy at law be available for the one impoverished. The appellants have a remedy in this case against the purchaser, Mrs. Yarbrough. The appellants have already received more than half of the purchase price of the car on behalf of Mrs. Yarb-rough. Because appellants chose not to further pursue Mrs. Yarbrough in California is not sufficient reason to impose liability on Mr. Scaccia. The ease of attaining a remedy is not a sufficient reason to apply unjust enrichment.

For the reasons assigned above, we affirm.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    Herbert E. MILLS v. INTERNATIONAL MANAGEMENT CONSULTANTS, INC., and Orleans Hotel Properties Corporation.
    No. 5-283.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Feb. 17, 1983.
    Garland R. Rolling, Michael Baham, Me-tairie, for plaintiff-appellant.
    Arthur G. Kingsmill, Gretna, for defendants-appellees.

      Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal brought by Herbert E. Mills on the trial judge’s upholding of an exception of prescription grounded in Louisiana Civil Code Article 1987. The exception was filed in response to Mill’s suit to revoke an assignment by International Management Consultants, Inc. (IMC) to Orleans Hotel Properties Corporation (OHP) of its interest in a ground lease and leasehold improvements located thereon. Mills was a judgment creditor of IMC and IMC and OHP were related corporations with a common president. We hold Article 1987 has no application here and, hence, reverse the trial judge’s ruling.

In 1976, Mills performed work for IMC on leasehold improvements on property leased by IMC from Lodian Enterprises, Inc. IMC failed to pay for the work and Mills filed suit on his claim. Judgment was rendered in his favor on November 7, 1979. Then in February of 1980, Mills, alleging his position as a judgment creditor of IMC, filed this suit to revoke the assignment of the lease and the leasehold improvements by IMC to OHP. The assignment was dated November 5,1979 and recited the consideration for thé assignment was debts owed by IMC to OHP. Mill’s petition alleged that the assignment was without consideration, and an effort by IMC to transfer to OHP, its “alter ego”, its assets without its debts, in order to fraudulently place the assets out of reach of its creditors. In response, IMC filed an exception of prescription and of non-joinder of an indispensable party (the third party to whom the lease had been assigned by OHP).

In the trial court, IMC contended the action was one in revocation and, since brought more than one year after its confection, prescribed. La.C.C. Article 1987, which provides as follows, was cited in support of the contention:

“No contract made between the debtor and one of his creditors for the purpose of securing a just debt, shall be set aside under this section, although the debtor were insolvent to the knowledge of the creditor with whom he contracted, and although the other creditors are injured thereby, if such contract were made more than one year before bringing the suit to avoid it, and if it contain no other cause of nullity than the preference given to one creditor over another.”

Counsel for Mills contended the suit was an action in simulation and, as such, impre-scriptible.

A hearing on the exceptions was held on October 9, 1981. During the course of argument on the exception, counsel for OHP offered to and was permitted by the court to introduce the testimony of Mr. Harlan, who was the president of OHC and IMC and a stockholder of each corporation. He was also the person who ultimately held title to the leases and improvements and the party who signed the assignment on behalf of both corporations.

The substance of his testimony was that he made loans to IMC for which he received notes which were then assigned to OHP. In payment of the notes IMC assigned its lease and leasehold interest to OHP. On the basis of this testimony, the trial judge concluded the debts recited in the assignment as the consideration was a “just debt” and hence upheld the exception of prescription.

On appeal, counsel for Mills urges only one assignment of error, namely, the trial judge erred in reaching the merits of the case on an exception of prescription. In essence, he contends the petition alleges the transfer was fraudulent in that it was made without a valid consideration and for the purpose of placing IMC’s assets out of reach of its creditors, and hence was an action in simulation.

Thus, the issue presented is whether the allegations of the petition stamps the suit as a revocatory action or an action in simulation. If construed as an action in simulation, the transfer is void ab initio and, hence, imprescriptible. On the other hand, if construed as an action to revoke the transfer because it favors one creditor over another, then the one year prescription of Article 1987 is applicable.

In Hibernia Bank and Trust Company v. La. Ave. Realty Co., 143 La. 969, 79 So. 554, 1918, the Supreme Court at page 556 defined a simulated contract as:

“A simulated contract is one which, though clothed in concrete form, has no existence in fact, and is only a myth. It may at any time and at the demand of any party in interest be declared a sham, and it may even be ignored by creditors of the apparent vendor.”

Then in Chapman v. Irwin, 157 La. 920,103 So. 263 (1925), at page 265, it made the following observation in distinguishing an action in simulation from a revocatory action:

“The revocatory action proper presupposes that some consideration was paid for the property, whereas an action in simulation is founded on the supposition that the attacked transaction was without consideration, a mere sham, having the form or color of reality, but without substance — a fraudulent sham.”

Although it is true, as urged by counsel for IMC, evidence is admissible on an exception of prescription to determine whether there was a “just debt” for the purpose of applying the prescriptive period of C.C. Article 1987, the application of the principle pre-supposes the action is one in revocation. Where the action is one in simulation, C.C. Article 1987 has no application. Lawson v. McBride, 121 La. 282, 46 So. 312 (1908). Gladney v. Manning, 48 La.Ann. 316, 19 So. 276 (1896).

Although the word simulation was not used, the petition filed here made all of the necessary allegations to constitute an action in simulation. It alleges the transfers were without consideration and were fraudulent transfers made by IMC to place its assets out of reach of its creditors. Therefore, we conclude the suit was an action in simulation rather than one of revocation. Hence, C.C. Article 1987 has no application to the action.

The trial judge did not pass on the exception of non-joinder of indispensable party, hence, there is no appeal of a ruling on that exception before us. Accordingly, the judgment of the trial judge upholding the exception of prescription is set aside and the exception of prescription is dismissed and the case is remanded to the trial court to be proceeded with in accordance with law. The costs of the appeal to be borne by IMC.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.


author: BOWES, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Leonard FARNSWORTH, Constance Farnsworth, et al.
    No. 5-312.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Feb. 17, 1983.

      Sally A. Shushan, New Orleans, for plaintiff-appellee.
    Robert 0. Homes, Jr., Gulfport, Miss., Joseph Lahatte and Michael W. Fontenot, New Orleans, for defendants/appellees.
    Before BOWES, CURRAULT and DU-FRESNE, JJ.
   BOWES, Judge.

The plaintiff, State Farm Mutual Insurance Company, was awarded a judgment of $589.49 against defendants Milligan, Duhon Machinery Co., and Allstate Insurance Company. The judgment represents sums expended by State Farm on behalf of its insured, one Mrs. Wallis, who was involved in an accident with defendant Milligan. State Farm had become the subrogor of Mrs. Wallis. From this judgment, defendant appeals.

Mrs. Wallis was involved in an automobile accident on July 19, 1978, with defendant Milligan and another defendant, against whom judgment was not rendered, a Mrs. Farnsworth. The automobile driven by Mrs. Wallis was struck from the rear by a truck operated by Milligan and owned by defendant Duhon Machinery Company. Milligan, at some point before and after, or at the same time, was himself struck from the rear by an automobile driven by Mrs. Farnsworth. On July 19, 1979, State Farm filed suit against Farnsworth and Farns-worth’s insurer, Ambassador Insurance Company, alleging that the Farnsworth vehicle had struck Mrs. Wallis, and was the sole proximate cause of the accident.

On August 23, 1979, Ambassador Insurance Company filed an Answer and Third Party demand against Milligan, Duhon and Allstate (as insurer of Duhon), for indemnification and contribution, should there be found liability of Farnsworth to State Farm.

On February 11,1980, third party defendant Thomas Milligan filed an exception of no cause or right of action. On that same date, Duhon and Allstate filed an answer to the third party demand, which read in part:

6. Third Party defendants deny that original plaintiff or its insureds were injured as alleged, and deny original plaintiffs’ right of subrogation, and deny that property damages were sustained in the amount claimed in the original petition, and third party defendants call for strict proof of all allegations of original plaintiff with respect to damages and rights of subrogation.
7. Third party defendants aver that the accident in suit was caused solely and proximately by the negligence, or in the alternative was proximately caused or contributed to by the contributory negligence or assumption of risk, of original plaintiff, Dorothy Wallis, in all of the respects mentioned in Paragraph VII of the answer filed by Ambassador Insurance Company to the original petition herein.

On April 9, 1980, Ambassador filed an amending and supplemental petition, citing Milligan as its defendant. On May 12,1980, Milligan, Duhon and Allstate filed an answer to the supplemental petition, which was a general denial incorporating exceptions and defenses urged in their original answer. On August 12, 1980, State Farm amended its petition to include Milligan et al as additional defendants, alleged to be liable jointly and in solido with Farnsworth, as alternative causes. At this time, the exception of prescription was filed, on August 18th.

The exception was dismissed and, after trial, the court found Milligan negligent and therefore liable, along with co-defendants Duhon and Allstate; dismissed all demands against Farnsworth; and found for plaintiff in the stated amount.

Defendants argue two specifications of error:

1. The trial court erred in failing to grant Appellant’s Exception of Prescription.
2. The trial court erred in holding the DUHON group liable since there was no substantial evidence of fault on the part of MILLIGAN, the driver of the DUHON vehicle.

We are well aware that the supplemental petition adding Milligan et al to the suit as defendants was not filed until August 12, 1980, nearly two years after the accident. However, defendants were cited as third party defendants by Ambassador well within the 90-day exemption period for filing incidental demands after the main demand is filed, granted by La.C.C.P. 1067. As illustrated above, in answering this timely third party demand, defendants answered and pleaded defenses to the original plaintiff. The court finds it difficult to subscribe to defendant’s complaint of lack of notice.

Defense counsel makes much over the fact that defendants did not receive notice of or even rumor to the effect that any suit whatsoever had been filed within the one year period. Contrary to defendant’s belief, Louisiana procedural law does not require notice of a lawsuit within one year. For the most part, in tort actions, all that is required is that the suit be filed within the prescriptive period. C.C.P. article 1067, referred to hereinabove, and R.S. 9:5801 are examples of law which exempt certain types of actions in certain circumstances from the one year limit. R.S. 9:5801 reads in pertinent part:

All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue.

Whether or not defendant had actual service within that one year is not the issue in our courts, and particularly under these circumstances. The original • third party demand was filed within the auspices of C.C.P. 1067. To that demand defendants asserted defenses against the original plaintiffs. Justice Tate wrote the following comments with regard to the essence of prescriptive laws:

The fundamental purpose of prescription statutes is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and from the loss or nonpres-ervation of relevant proof. They are designed to protect him against lack of notification of a formal claim within the prescriptive period, not against pleading mistakes that his opponent makes in filing the formal claim within the period. 21 Tulane Law Review 211, at p. 233.

As we take this reasoning to be accurate', we can see no reason for defendant to complain.

If the original timely pleading gives actual notice to a party that a formal claim or defense is being made based upon a particular factual situation, no essential protective purpose of a prescriptive statute is violated by permitting relation back of a postprescription amendment based on the same factual situation. Through the original pleading the opponent knows that judicial relief is sought arising from the general factual situation alleged, and he is put on notice that his evidence concerning it should be collected and preserved. 21 Tulane Law Review, supra.

Granted that the third party petition was timely filed, defendant received requisite notice of a claim (and, indeed, asserted defenses to it) timely.

The Supreme Court codified this position in Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979). There, the Court found that timely filing of a suit against a defendant apprised him that a judicial claim was being made to enforce his liability, and thus he received notice of the possibility that an intervenor, in this case, might intervene in this suit.

As we stated in Nini v. Sanford Brothers, Inc., 276 So.2d 262 (La.1973): ‘When the defendant knows or should know, pri- or to the expiration of the prescriptive period, that legal demands are made upon him from the occurrence described in the petition filed, prescription is interrupted.’ 276 So.2d 264, (Citations omitted)
... The underlying reason why prescription does not bar the subsequent claim in these instances is that the defendant has adequate and timely notice by legal demand on behalf of indicated interests that liability arising out of the factual occurrence pleaded is sought to be enforced against him. The fundamental purpose of prescription statutes is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and from the loss or non-preservation of relevant proof. Allstate, supra.

In Carona v. Radwin, 195 So.2d 465 (La.App. 4th Cir.1967), the court held that the defendant and third party plaintiff had alleged a cause of action against third party defendants within the prescriptive period, put at issue the negligence of the third party defendants, from which negligence the plaintiff suffered, and “Plaintiff’s later petition did not change this cause of action. The fact that the court found Guidry’s [third party defendant] negligence to be the sole proximate cause does not change the nature of the cause of action against them.” (supra, at p. 468)

We find that the filing of the third party action against Milligan et al, timely, in accordance with C.C.P. 1067, sufficiently placed Milligan on notice of a claim; that the subsequent amending petition of Allstate encompassed the cause of action sued upon by third party plaintiffs; therefore Allstate’s claim had not prescribed, but that prescription had been interrupted by the third party demand. We are obliged to emphasize the fact that Milligan actually asserted defenses against the original plaintiffs in its answer to the third party petition. No rationale or purpose of prescriptive statutes has been violated. Under R.S. 9:5801, prescription affecting the cause of action is interrupted as to all defendants by commencement of a civil action.

Regarding the merits of the case, the trial court simply believed plaintiff instead of defendant, that Milligan had not stopped immediately prior to the accident. The trier of fact is granted a great deal of discretion in matters of credibility of witnesses. Young v. Dept. of Health and Human Resources, 405 So.2d 1209 (La.App. 1st Cir.1981). The appellate court shall not disturb a factual finding in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). “ ‘Manifestly erroneous’, in its simplest terms, means ‘clearly wrong.’ ... there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).” (Arceneaux, supra).

From the record before us, we cannot say the finding of negligence on the part of the defendant was clearly wrong. There was no evidence as to when the Farnsworth vehicle struck Milligan. The judge stated that he was not convinced that an impact was sufficient to propel the Milligan vehicle into plaintiff’s car. We are of the opinion that this finding of fact by the trial judge was not manifestly erroneous and accordingly:

The judgment appealed from is affirmed.

AFFIRMED.


author: DUFRESNE, Judge.

text:
    Sylvia Sable Wife of Edward B. BERGMAN v. Edward B. BERGMAN.
    No. 5-306.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Feb. 17, 1983.
    Bronfin, Heller, Feldman & Steinberg, Sylvan J. Steinberg, New Orleans; for defendant-appellee.
    Joseph W. Nelkin, New Orleans, for plaintiff-appellant.
    Before BOUTALL, BOWES and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal from a judgment sustaining peremptory exceptions of no cause of action and prescription regarding a petition for nullity of a Louisiana divorce decree. Judgment was rendered in favor of Edward B. Bergman, husband (hereinafter referred to as defendant) and against Sylvia Sable, wife of defendant (hereinafter referred to as plaintiff). Plaintiff appeals from that judgment.

On October 27, 1946, the plaintiff and defendant were married in New York. Of this union, two children were born, both now majors. On June 12, 1971, marital relations between the two parties broke down resulting in a physical separation from bed and board. The defendant moved to Kenner, Jefferson Parish, Louisiana in December of 1975. The defendant filed suit against his (non-resident) wife in Jefferson Parish and obtained a default judgment of divorce on March 5, 1976, based on living separate and apart continuously for over two years. The plaintiff herein, filed a “Petition For Nullity of Judgment” on April 20, 1981 alleging that the divorce decree rendered March 5, 1976 is an absolute nullity and should be vacated because the Jefferson Parish District Court lacked jurisdiction over the parties and over the cause of action.

Thereafter, the defendant filed peremptory exceptions of no cause of action, no right of action, liberative prescription, and res judicata and/or judicial estoppel. The hearing on these exceptions were set and despite being subpoenaed, the plaintiff, Mrs. Bergman did not appear. No evidence was presented except a lengthy stipulation. The pertinent facts are as follows:

1. That Mrs. Bergman knew on or about January 15, 1976, that her husband had filed an action for divorce in the 24th Judicial District Court based on the grounds of living separate and apart for two or more years.

2. That she was a non-resident of Louisiana and a curator was appointed by the court, namely Robert A. Pitre, Jr., to represent her.

3. That on January 22,1976, pursuant to his appointment, Mr. Pitre sent a letter by certified mail to Mrs. Bergman, enclosing a copy of the petition for the divorce with that letter and this was received and signed for by Mrs. Bergman on January 31, 1976.

4. That Mr. Pitre’s letter advised Mrs. Bergman of the pending divorce action, that he was appointed to represent her interests, and that she was to advise him of any defenses which she might have if she wished to contest the matter.

5. That at that time, Mrs. Bergman was represented by counsel in Philadelphia, Pennsylvania.

6. That Mrs. Bergman met with her Philadelphia counsel to discuss the letter which she received from Mr. Pitre.

7. That Mrs. Bergman knew that Mr. Bergman contended in his suit that he was domiciled in the State of Louisiana.

8. That Mrs. Bergman’s Philadelphia counsel did not contact Mr. Pitre until March 17, 1976, which was after the Judgment of Divorce had been rendered by the 24th Judicial District Court.

9. That Mr. Pitre responded to Mrs. Bergman’s Philadelphia counsel and informed him that a Judgment of Divorce in favor of Mr. Bergman had been rendered and advised her Philadelphia counsel that Mrs. Bergman had thirty days from March 5, 1976, to either file an appeal or file an action of nullity.

10. That in an action in the courts of Philadelphia, on April 2, 1976, Mrs. Bergman’s Philadelphia counsel wrote the Philadelphia court advising that a motion would be filed in Louisiana to have the divorce set aside.

11. That no action was ever taken by Mrs. Bergman or her counsel either to attack the Louisiana judgment in either Louisiana or Pennsylvania until April of 1981.

12. That in a proceeding in Philadelphia courts, bearing NO. 2048 in Equity in the Family Court Division, entitled “Bergman v. Bergman”, Mrs. Bergman attempted to attack the Louisiana divorce in 1977, that Mr. Bergman’s domicile in Louisiana was a fraud and as such the judgment of Louisiana could not be given full faith and credit. The Philadelphia court denied Mrs. Bergman’s argument and held that Mr. Bergman’s domicile in Louisiana was bona fide and that the Louisiana divorce was entitled to full faith and credit.

13. That despite the judgment in 1977 by the Philadelphia, Pennsylvania courts, Mrs. Bergman took no action whatsoever in Louisiana until April of 1981, some five years later, to attack the Louisiana divorce decree.

14. That in proceeding in Municipal Court in Philadelphia, No. SC 77/01/142073 and 20731, Mrs. Bergman filed a suit against one Leo Sher in which she alleged that she was a tenant in common with Mr. Bergman by virtue of the Louisiana divorce and that in fact she was divorced from Mr. Bergman.

15. That in September of 1977, Mrs. Bergman joined with Mr. Bergman and his new wife in a sale of certain properties in Pennsylvania and in that act of sale she alleged that she was a tenant in common with Mr. Bergman and that in fact she was divorced from Mr. Bergman by proceedings in State of Louisiana, No. 183-792 in the 24th Judicial District Court.

Following this lengthy stipulation, various documents were introduced into evidence. Upon consideration of the evidence and argument of counsel, the District Court sustained the exceptions, maintained the divorce judgment and dismissed plaintiff’s petition.

On appeal there is one basic issue for our consideration, whether there was acquiescence on the part of the plaintiff in the 1976 Judgment of Divorce so as to preclude her from asserting its nullity.

We hold that the plaintiff voluntarily acquiesced in the 1976 Judgment of Divorce and therefore is now precluded from asserting its nullity.

LSA-C.C.P. art. 2003 provides that:

“A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.”

Article 2002 provides for annulment on grounds for vices of form, including lack of subject matter jurisdiction. Article 2003 provides the exception and we find it is applicable in this case.

The plaintiff has cited the recent case of Peschier v. Peschier, 419 So.2d 923 (La.1982) in support of her contention that she did not acquiesce in the judgment of divorce obtained by the defendant. We hold that Peschier is distinguishable from the present case. In Peschier the wife learned of existence of a 1960 divorce judgment in January of 1976, but did not bring action to annul it until over one year later. The Supreme Court held that this is not the acquiescence as is required by art. 2003. Here the plaintiff, Sylvia Bergman had knowledge of the Louisiana divorce proceeding at its inception (thru curator ad hoe’s letter) and although advised to take action within 30 days from March 5, 1976, to either file an appeal or file an action of nullity, chose not to act, but to acquiesce. The evidence abundantly indicates the plaintiff did voluntarily and unconditionally accept and acquiesce in the Louisiana divorce decree. The plaintiff asserted the validity of the divorce judgment in a Pennsylvania court in order to establish a new status as a tenant in common with the defendant so as to obtain an economic benefit. Furthermore, as was stipulated in the record, she joined with the defendant and his present wife in a sale of properties in Pennsylvania whereby she recites that she was a tenant in common with the defendant and that in fact, was divorced from the defendant through proceedings in Louisiana. Additionally, the number of years which have transpired between the divorce judgment (of which she had full knowledge) and the action to attack based on the nullity of the divorce decree, we feel is significant. Why did she prolong this action for nullity and allege change of marital status? We must conclude that the plaintiff recognized and accepted the reality and legality of the divorce judgment for over five years and now for some reason wants to attack its validity. We feel that this constitutes the acquiescence which LSA-C.C.P. art. 2003 refers and the plaintiff is now estopped from bringing this action for nullity.

For the foregoing reasons, the trial court properly dismissed plaintiff’s suit to nullify the judgment of divorce. The judgment of the trial court is affirmed at plaintiff’s cost.

AFFIRMED.


text:
    Dorothy and Ralph STOVALL v. TOM HICKS TRANSFER COMPANY, INC., William C. McGee and Empire Fire and Marine Insurance Company. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Ralph Stovall v. William C. McGEE and Tom Hicks Transfer Company.
    Nos. 5-266, 5-267.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Feb. 17, 1983.

      Bienvenu, Foster Ryan & O’Bannon, New Orleans, Robert 0. Ryan, for defendants and appellants.
    Weidner & Brooks, John H. Brooks, Gret-na, Porteous, Toledano, Hainkel & Johnson, Henry Leon Sarpy, Brierre & Malone, Eugene D. Brierre, New Orleans, for plaintiffs and appellees.
    Before BOWES, GAUDIN, and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This case involves an automobile accident at an intersection controlled by a traffic light. The intersection in question consisted of a divided four lane highway crossed by a two lane, two-way street. The facts of the case are simple. Mr. Ralph Stovall was stopped at the red light heading south on the two-lane street. When the light turned green, he hesitated for a few seconds to cheek the highway traffic before attempting a left turn into the eastbound lanes of the highway. Being satisfied that the traffic in the right hand lane of the two westbound lanes was stopped, and seeing no traffic in the left westbound lane, he entered the intersection. Unfortunately an eighteen wheel tractor trailer truck that was approaching the intersection in the left westbound lane of the highway at thirty-five miles per hour ran the red light and struck the Stovall car on the driver’s side. Mr. Stovall and his wife, Dorothy were both injured and the car was damaged. McGee testified by deposition that it was in fact Stovall who ran the red light, but this testimony was apparently discounted by the jury.

The Stovalls insurer, State Farm Automobile Insurance Co., eventually paid $7,443.34 for medical and property damage occasioned by the accident.

Two law suits were subsequently filed. In the first, the Stovalls sued William McGee, driver of the truck, Tom Hicks Transfer Co., owner of the truck and employer of McGee, and Empire Fire and Marine Insurance Co., insurer of Hicks. Hicks and Empire responded with a third party claim against Stovall and State Farm for injuries suffered by Mrs. Stovall.

In the second suit, the Stovalls and State Farm sued only McGee and Hicks for Sto-vall’s $100 deductible and the $7,443.34 paid by State Farm.

The cases were consolidated, and after a jury trial on the merits, judgment was entered in favor of Ralph Stovall and against Hicks and Empire in solido for $35,400; in favor of Dorothy Stovall and against Hicks and Empire in solido for $1,500; and in favor of State Farm and against Hicks and Empire in solido for $7,443.34, defendants to pay all costs. No service of process ever having been made on McGee, all claims against him were dismissed.

Hicks and Empire, appellants, now bring this appeal.

Appellants allege first that the trial court erred in denying their motion for a directed verdict, and second, that the jury verdict was erroneous as a matter of law. As we hold that the jury verdict was not contrary to law, we necessarily uphold the trial court’s denial of the motion for a directed verdict.

Appellant’s basic contention is that because Stovall failed to see what he should have seen, i.e., the approaching truck, he was necessarily contributorily negligent. We note initially that because the events giving rise to this claim occurred before August 1, 1980, the date Louisiana’s comparative fault scheme went into effect, negligence on plaintiff’s part would bar recovery if it were shown that this negligence was a proximate cause of the accident. To resolve this negligence question, we need look no further than the jury’s verdict: it found Stovall negligent, but it also found that this negligence was not a proximate cause of the accident. We find nothing erroneous in this determination.

It is the law of this state that when a favored motorist enters an intersection he may rely on the duty of intersecting traffic to respect his right of way. Bourgeois v. Francois, 245 La. 875, 161 So.2d 750 (1964); Otillio v. Dolese, 236 So.2d 646 (La.App. 4th Cir.1970). We further point out language in the Bourgeois case to the effect that only in exceptional circumstances where a favored motorist could have avoided an accident by the slightest sort of observation or care can he be found contributorily negligent. Cf. Rome v. D’Antoni, Inc. 246 So.2d 331 (La.App. 1st Cir.), writ refused, 247 So.2d 864 (1971).

Here, the facts show that Stovall was particularly circumspect in waiting at the green light for a few seconds before entering the intersection. That he failed to see the approaching truck was negligence, but had he seen the truck, he would still have been without fault in assuming that the truck would honor his right of way. The jury apparently concluded that the proximate cause of the accident was thus the truck driver’s failure to stop at the red light, and not Stovall’s failure to see the truck. As the verdict was a reasonable assessment of the evidence, and supported by law, we affirm the jury’s decision.

Appellants’ third contention is that because the jury failed to answer two interrogatories apportioning the loss suffered by State Farm between medical bills and auto damage paid on Stovall’s account, and medical bills paid on his wife’s account, the judgment in favor of State Farm in the amount of $7,443.34 was not a part of the jury verdict, and therefore must be reversed. This contention is also without merit.

There was general agreement by all counsel of record during the course of the trial that State Farm paid out some $7,000 on account of the accident. There was further agreement that the exact total amount would be supplied to the jury after the parties resolved some minor discrepancies in the final figure. At the close of evidence, the jury was instructed without objection that the proper figure was $7,443.34. We must conclude, therefore, that this figure was correct and agreed to by all parties.

Appellants’ contend, however, that even were the figure correct, the jury’s failure to fill in any amounts with respect to State Farm’s claim for reimbursement indicates that they did not find State Farm entitled to such reimbursement. They fail to note, however, that at the close of the trial the judge stated:

“[The] Court will prepare a judgment in accord with the verdict with medical expenses proportioned in accord with the jury’s findings.”

This court can only conclude that the trial judge determined that the reason the jury did not fill in the two amounts owing to State Farm was because they had • been given only one figure as to State Farm’s claim. The interrogatories, on the other hand, called for two figures; one for Sto-vall, and one for his wife. Because of this confusion, the jury evidently left both spaces blank, and the judge was correct in deciding to apportion the agreed upon figure between the medicals pursuant to the jury verdict establishing liability on the part of Hicks and Empire. He was equally correct in rendering final judgment in a lump sum for the full amount because once liability was established there was no point in apportioning the damages owing to State Farm under the subrogation clauses of its policy issued to Stovall.

We finally note that the interrogatories called for two figures because Hicks and Empire had made third party demand against Stovall and State Farm alleging that Stovall’s negligence was a contributing cause of his wife’s damages. Had Stovall been found contributorily negligent, then he, Hicks and Empire would have been jointly liable as to Mrs. Stovall’s claims, and a separate assessment of her medicals would have been called for. However, as Hicks and Empire were found totally liable, no division of the Stovalls’ damages compensated by State Farm was necessary. Thus, the lump award, based on the jury’s finding of liability was proper.

Appellant Empire’s final argument in regard to this $7443.34 reimbursement is that the trial court erred in giving judgment against Empire in solido with' Hicks because State Farm did not sue Empire for that amount in the second suit. Empire thus contends that Hicks should be solely liable to State Farm for this part of the judgment. Empire fails to mention, however, that it made State Farm a third-party defendant in the first suit brought by the Stovalls against McGee, Hicks and Empire. In its answer to the third party demand, State Farm averred that Hicks and Empire were responsible for all damages occasioned by the truck driver’s negligence, and sought all general and equitable relief.

Evidence was adduced at trial without objection by Empire to show a loss by State Farm of $7,443.34. LSA-C.C.P. art. 1154 provides that when “issues not raised in the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” This rule applies to quantum in claims for special damages Townsend v. Gleve Heyl Chevrolet-Buick, Inc., 318 So.2d 618 (La.App. 2nd Cir.1975), Sterkx v. Gravity Drainage Dist. No. 1 of Rapides Parish, 214 So.2d 552 (La.App. 3rd Cir.1968).

Here, Empire stipulated in its pre-trial insert in the first suit that it was the accident liability insurer of Hicks. At trial all parties agreed that State Farm suffered a loss of $7,443.34 on account of the accident for which Hicks and Empire were found liable. No objection was made by Empire to the admission of this fact, even though this evidence was clearly inadmissable under the pleadings of the first case which contained no prayer by State Farm for special damages, and would have been excluded had objection been made. We are aware that the evidence was admissable under the pleadings of the second ease, but hold nonetheless that Empire’s failure to object to it as it pertained to the first case resulted in an amendment of the pleadings therein as provided in LSA-C.C.P. art. 1154. State Farm’s answer to the third-party demand was thus clearly amended to specify the quantum of special damages sought from Empire and Hicks in that answer. We therefore conclude that Empire was properly east in judgment in solido with Hicks for reimbursement to State Farm.

The final issue on appeal is whether the trial judge erroneously admitted the depositions of the Stovalls into evidence.

LSA-C.C.P. art. 1450 permits the use of depositions to impeach a deponent’s credibility at trial. It further provides that when one party introduces parts of a deposition, the opposing party may introduce any other part which in fairness should be considered with the part introduced.

In this case, appellants made extensive use of the depositions of Stovall and his wife to try to impeach the credibility of Stovall. Because the use was so extensive, the trial judge allowed plaintiffs to introduce the entire depositions so the jury would not be misled as to what was actually said at the taking of those depositions. We find no error in this ruling as it comes well within the provisions of art. 1450 as to what should fairly be considered in depositions when parts of those depositions have been introduced by a party.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.


author: CURRAULT, Judge.

text:
    WEST SIDE FUNERAL HOME, INC. v. Gilda NICHOLAS.
    No. 5-275.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Feb. 17, 1983.

      John M. Garic, Post, Reinhardt & Rouge-lot, Metairie, for plaintiff-appellant.
    Barry J. Landry, The Law Offices of Daniel E. Becnel, Jr., Reserve, for defendant-appellee.
    Before CHEHARDY, KLIEBERT and. CURRAULT, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment dismissing plaintiff’s suit against defendant for money owed on a funeral services contract.

On March 20, 1979, defendant-appellee, Gilda Nicholas, signed a contract with plaintiff-appellant, West Side Funeral Home, Inc. for services in connection with the funeral of Mrs. Louise F. Nicholas, defendant’s mother-in-law. The printed contract set forth the services to be rendered and the terms and conditions of the agreement. It also provided space for the name and address of the party to be billed separate and apart from the signature line.

While Mrs. Nicholas signed the agreement, she specifically designated that her father-in-law, Elphage Nicholas, be billed in the matter.

Subsequently, appellant sought to collect the funeral costs from appellee. The amount demanded was $2,289.65 plus interest of one percent per month dating from June 26, 1979. Receiving no satisfaction, suit was filed on December 13, 1979 for breach of contract.

Trial was held on September 29, 1981, by which time the father-in-law had died. In a judgment rendered October 14, 1981, appellant’s demand was dismissed for reason that the contract was unenforceable due to a mistake of fact. However, the trial judge reserved appellant’s right to proceed against the Estate of Elphage Nicholas and/or the Estate of Louise F. Nicholas.

Appellant, West Side Funeral Home, Inc., appeals that judgment as it relates to ap-pellee, Gilda Nicholas.

Appellant presents for our consideration the issue of whether the trial court erred in failing to hold appellee liable for the payment of the funeral costs pursuant to the written agreement which she signed.

Interpretations of contracts are governed by LSA-C.C. arts. 1945-1962. All clauses are interpreted by one to the other, giving sense that results from the entire act. LSA-C.C. art. 1955, Van Dung v. Tel Ag Services, Inc., 407 So.2d 1339 (La.App. 3d Cir.1981). It is an established point of law in Louisiana that mere failure to read an instrument does not free the party from the obligation contained therein. Leny v. Friedman, 372 So.2d 721 (La.App. 4th Cir.1979), certiorari denied, 375 So.2d 943 (La.1979).

Legal agreements, in addition, have the effect of law upon the parties and courts are bound to give them legal effect according to the true intent of the parties. LSA-C.C. 1945; Pendleton v. Shell Oil Co., 408 So.2d 1341 (La.1982). The intent is to be determined by the words of the contract when these are clear and explicit and lead to no absurd consequence. LSA-C.C. art. 1945; Baker v. Life General Security Ins. Co., 405 So.2d 1162 (La.App. 1st Cir.1981). If there exists a difference in intent, there can be no common consent and, consequently, no contract. LSA-C.C. art. 1945.

The trial court found in the case herein that the document was ambiguous, and for that reason attempted to ascertain the intent of the parties. He concluded that Mrs. Nicholas, the appellee, never intended to bind herself for the costs involved. We agree.

The record reveals that the contract was a printed form at the bottom of which spaces were provided for signature and for the name and address of the party to be billed. These provisions were equal in size of print, and they were placed side by side. Both immediately followed the terms, conditions, and promise to pay sections of the agreement. It is difficult to determine whether the purpose of the billing section was solely for accounting convenience or whether it was for actual financial responsibility. It is particularly ambiguous considering the delicate nature of the services to be provided. Often as a result of a death in the family, the circumstances may dictate that someone other than the responsible party make the final arrangements.

Following a determination that the contract was ambiguous, the trial court correctly allowed testimony in an attempt to ascertain the true intent of the parties. Pendleton, supra. Only two witnesses appeared at trial, and their testimony was contradictory. Mrs. Nicholas’s testimony indicates that while she did not read the contract, she provided her father-in-law’s name, with his permission, for the express purpose of assessing financial responsibility to him. She stated that her signature appeared on the document solely because her elderly father-in-law, who was in Norco, Louisiana, was extremely upset as were the rest of the family members, and someone’s signature was required. The trial court evidently believed appellee’s testimony that at no time did she intend to bind herself personally for the costs of the services.

It is well established that resolution of conflicting testimony is the function of the trial judge. In the absence of manifest error, this court is precluded from disturbing those findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). After a review of the record, we fail to find that the trial court was clearly wrong. Since appellee lacked the requisite intent necessary for the formation of a valid contract, she cannot be held liable for the money owed on the contract for funeral services.

After review of the law and facts and for the reasons stated herein, this court hereby affirms the holding of the trial court dismissing plaintiff’s suit, and reserving to them the right to pursue this action against the Estates, separately or together, of El-phage Nicholas and/or Louise F. Nicholas.

AFFIRM.