author: EDWARDS, Judge. SHORTESS, Judge,

text:
    Russell LEGER v. CARGILL, INC.
    No. 14868.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Richard P. leyoub and William B. Bag-gett, Baggett, McCall, Singleton, Ranier & leyoub, Lake Charles, for plaintiff.
    John K. Hill, Jr., Lafayette, for defendant.

      Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Russell Leger, brought this action for workmen’s compensation benefits against his former employer, Cargill, Inc. Plaintiff’s petition alleged that he suffered an injury to his left wrist in January of 1980, during the course of his employment by Cargill, Inc. This injury was alleged to have occurred when an air hose on a drill which plaintiff was using came loose and struck him.

The trial court rendered judgment for defendant, dismissing plaintiff’s suit. The trial court concluded that plaintiff failed to prove his case by a preponderance of the evidence since he failed to prove that he had suffered an injury while on the job. Furthermore, assuming, arguendo, that plaintiff had proved such an injury, the trial court held that he failed to prove any disability resulting therefrom.

Plaintiff has appealed the district court’s judgment. We affirm.

The trial court made two distinct factual findings — that plaintiff failed to prove that he was injured on the job and that he failed to prove that he suffered any disability. The trial judge’s written reasons for judgment, attached hereto as an appendix, reveal that these factual conclusions are the result of evaluations of witness credibility and inferences of fact. Such factual findings are not to be disturbed on appeal in the absence of manifest error. Cadiere v. West Gibson Products Company, Inc., 364 So.2d 998 (La.1978); Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring Company, 283 So.2d 716 (La.1973). A thorough review of the evidence in the record reveals no such error.

For the foregoing reasons, the judgment of the district court is affirmed. All costs of these proceedings are to be paid by plaintiff-appellant.

AFFIRMED.

SHORTESS, J., dissents and will assign reasons.

APPENDIX

RUSSELL LEGER 16TH JUDICIAL

VERSUS DISTRICT COURT

NO. 61437 PARISH OF ST. MARY

CARGILL, INC. STATE OF LOUISIANA

REASONS FOR JUDGMENT

The threshhold issue in this workman’s compensation case is: Did this nineteen year old plaintiff suffer an accident in the course and scope of his employment which caused his injury?

In January, 1980, plaintiff worked for Cargill in its salt mine as a miner. His testimony concerning the occurrence is in some instances corroborated and in other instances directly contradicted by other witnesses and other evidence. His testimony is substantially as follows:

Sometime in January (he does not recall the day or the date), while using a drill, the air hose which operates the drill came off striking him and causing the drill to twist, all of which resulted in pain and swelling in his left wrist. This was witnessed by his co-workers Oppenheimer and Thompson. When the accident occurred he complained to Oppenheimer. He completed his shift and at the close of his shift reported the accident to his immediate superior, Murphy Olivier, who made a written report of the accident. He missed four or five days work at the time of the accident but did not consult a physician until approximately a week to a week and a half after the accident. He consulted Dr. Dugas, a general practitioner, and related to him how the accident occurred. Plaintiff continued to work until some time in April even though for a part of the time he had a cast on his arm. He was able to do the work because he had help in the form of his co-workers who were specifically assigned by Murphy Olivier to assist him with the more difficult tasks. He quit in April because he was accused of misconduct. Had he not been so accused he would have continued to work for defendant doing the same job. His rate of pay was $6.58 per hour. His average work week was forty-eight hours and his gross pay was $315.84 per week. Plaintiff never previously injured his left wrist although he did injure several fingers on his left hand rather seriously both before and after the incident in question in this litigation. He has continued to have pain in his left wrist which prevents heavy manual labor. Since leaving Cargill, he has worked part-time for his step-father as a tractor driver on his father’s farm but has not done any regular work of any nature since November of 1980 when he severely injured a finger on his left hand while working for his step-father. His duties at the mine included the operating of heavy equipment, lifting and carrying explosives weighing sixty to seventy pounds, working with equipment involving heavy vibrations and the shoveling of salt.

As indicated, the following evidence from other sources in some instances corroborates and in other instances directly contradicts plaintiff’s testimony:

He saw Dr. Dugas on February 4, 1980, and related to Dr. Dugas that he had hurt his wrist on January 25 at 11:30 PM while using the drill.

The employer’s work records (defendant’s exhibit 4) show that plaintiff missed no work in January and only one day in February. He missed considerable time in March and in April and his employment was terminated in mid April.

Plaintiff’s step-father testified that the plaintiff told him of the accident the day after it happened but he could not recall exactly when that was.

Murphy Olivier, plaintiff’s foreman, made out a “foreman’s report of injury” on January 8, 1980, showing the name of the injured person to be Russell Leger and that he hurt his wrist while picking up a case of blasting powder. The report shows that there were no witnesses to the accident. He got his information from plaintiff who came to him and related what had happened. Plaintiff did not mention the drill or the air hose to him. He was plaintiff’s foreman the entire time of plaintiff’s employment and plaintiff’s work never changed. Plaintiff performed the same duties as before while he had a cast on his arm and after it was removed. No extra help was ever assigned to plaintiff and no one helped him. Olivier remains employed by Cargill.

Alton Oppenheimer, who also remains employed by Cargill, worked with plaintiff during his entire tenure. He never witnessed plaintiff have any accident of any kind. He did see plaintiff working with a cast at one point and when he inquired about it plaintiff simply advised him that he had broken a small bone in his wrist. Plaintiff did not say how it had occurred. With the cast on plaintiff worked exactly as he had worked before doing the same work in the same fashion. Plaintiff had no more help after the incident than before. He was positively never present at any time when an air hose disengaged from a drill while being used by plaintiff or anyone else.

Clay Thompson was a co-worker no longer employed by Cargill. He failed to respond to his subpoena to appear at the time of trial and by agreement of counsel his testimony was taken by deposition. Plaintiff’s counsel objected to cross-examination by defendant’s counsel by use of a previous statement made by the witness to an investigator employed by plaintiff’s counsel on the ground that the statement taken by the investigator was protected from discovery as an attorney’s work product. The objection is overruled. The statement is simply a statement by a witness. It contains neither impressions nor opinions of the attorney and is therefore not an attorney’s work product. La.-C.C.P. 1424; see Cargill, Inc. v. Cementation Company of America, 377 So.2d 1334 ([La.App.] 1st Cir. 1979), reversed at 379 So.2d 254 apparently on other grounds.

Clay Thompson testified that he did in fact witness the accident. It was sometime in January but he could not remember the day nor the date nor the hour. He testified that the drill twisted and the hose came off and that plaintiff’s wrist was swollen. He positively stated that Mr. Oppenheimer was working with them, witnessed the accident, and turned off the machine. Thompson was firm that the accident was reported to Murphy Olivier in his presence on the same day; that plaintiff told Olivier what happened (the drill twisted and the hose came off); that he saw Olivier fill out the foreman’s report of injury; saw what he wrote; and that he put down the names of witnesses. Plaintiff did in fact continue to work but following the accident he helped plaintiff with his work so that the heaviest parts did not have to be born by plaintiff alone. The accident, he thinks, occurred in the day time and plaintiff missed three days of work immediately after the accident and returned with a cast on his arm. His excuse for not responding to the subpoena issued by this Court was that he had just undertaken a new job and did not want to miss work. He has prior theft convictions and made some statements in his recorded statement to plaintiff’s investigator which were inconsistent with the testimony which he gave at the time of his deposition.

Does the foregoing evidence constitute compliance by plaintiff with the burden placed upon his by the workman’s compensation laws as interpreted by the Courts of Appeal to prove his case by a preponderance of the evidence? The Court is convinced it does not. Aside from the testimony of Clay Thompson (whose credibility is highly questionable) the only other hard evidence that supports plaintiff is the “for-man’s report of injury” and even that shows a totally different occurrence than plaintiff describes. While a more relaxed standard of proof may apply in workman’s compensation cases, the Court is not convinced that even that standard has been met.

Even if, for argument sake, it be assumed plaintiff has proven an injury by accident on the job he has failed to prove disability.

Plaintiff has a fracture of the left capral navicular bone which was diagnosed by Dr. Dugas on his first visit on February 4,1980. It continues in an unhealed condition which is not uncommon for this injury. Plaintiff is right handed. The question whether this fracture impairs plaintiff’s capacity to do heavy work such as he did at the time of his accident must be answered in the negative.

Plaintiff continued to work until mid April when he terminated his employment because he was accused of misconduct. It is interesting to note that it was not because of a physical disability. Plaintiff testified that Dr. Dugas, his treating physician, said he could continue to work and for that reason he worked both with and without his cast. Plaintiff states he could do his same job only because he had help from his co-workers. The testimony of Clay Thompson supports him. That of Alton Oppenheimer and Murphy Olivier is to the contrary.

The testimony of Dr. Dugas is not helpful as to the medical aspects of plaintiff’s ability to return to work.

Dr. Morein, an orthopedic surgeon to whom plaintiff was referred by his attorney, saw plaintiff twice, concluded that he would have disabling pain in attempts to do heavy manual labor on a regular basis. He assigned a twenty percent impairment to plaintiff’s wrist.

Dr. Webre, an orthopedist to whom plaintiff was referred by defendant, saw plaintiff once and concluded that he had full function of his wrist but assigned a twenty-five percent impairment to the wrist due to pain. However, Dr. Webre did not feel that plaintiff suffered severe incapacitating pain.

After his release by Cargill plaintiff worked on his step-father’s farm largely as a tractor driver until November of 1980. According to plaintiff, his father-in-law, and one Rivers Breaux, plaintiff could do that without pain but did complain and his wrist did occasionally swell when he had other heavy types of work to do. Plaintiff stopped doing that work in November when he cut the index finger of his left hand quite severely and he has worked only infrequently since. It is apparently the injury to his finger which caused him to terminate regular employment by his step-father and not any disability resulting from the wrist fracture. Plaintiff has made no effort to find any other type of employment.

It is in the context of this evidence that the Court is called upon to determine whether or not this plaintiff suffers substantial disabling pain when he undertakes to do heavy work. It is the Court’s opinion that plaintiff’s actions speak more truth than his words. While he contends that he cannot work due to pain he has in fact worked. He continued to do his same work for Cargill for months following his accident. The evidence does not support his contentions that he did it only with extra help. The only witness who supports him in this regard is not particularly credible. The medical opinion appears to be equally divided concerning the nature of his pain. While the work of a tractor driver may be considered to be somewhat lighter than that which he was doing at the moment of this accident, it must be born in mind that at the time of this accident he did not spend the majority of his time working with a drill. His time was divided among numerous tasks many of which were not nearly so physically demanding as that particular one.

While plaintiff may suffer occasional pain and swelling of his wrist upon doing work similar to that which he was generally engaged in while employed by Cargill, I cannot find that this pain would be frequent enough or substantial enough to constitute a disability. The fact that he did his job at Cargill and testified that he only stopped doing his job because he was accused of misconduct that but for that he would have continued to do his job indefinitely, coupled with the fact that he did work for his father-in-law and stopped that work only because he had a new injury, convinces the court that his pain is not so regular or so frequent or so severe as to be disabling. His pain will not necessarily increase with the passage of time as there is radiographic evidence of gradual healing.

For the foregoing reasons, judgment will be rendered herein in favor of defendant and against plaintiff dismissing plaintiff’s demands at plaintiff’s cost. Formal judgment will be signed upon presentation.

New Iberia, Louisiana, May 4th, 1981.

/s/ John M. Duke. Jr.

JUDGE

SHORTESS, Judge,

dissenting.

I respectfully dissent.

The trial judge’s evaluation of the evidence in this case was clearly wrong. His written reasons state:

Aside from the testimony of Clay Thompson (whose credibility is highly questionable), the only hard evidence that supports plaintiff is the forman’s (sic) report of injury, and even that shows a totally different occurrence than plaintiff describes.

Dale Wright, the employer’s safety manager, conducted an investigation of this accident. He testified that he got his information from Murphy Olivier, plaintiff’s foreman. His version, as set forth in writing in his report, verifies plaintiff’s version of the accident. The foreman’s report of injury was not properly prepared, according to Wright’s testimony, which prompted him to personally discuss the matter with Murphy Olivier. The following colloquy is enlightening:

Q And what did you do at that point?
A That’s when I checked with Murphy Olivier and I checked with Russell to find out exactly what had happened, because the foreman’s report of injury, like I said earlier, had some bland (sic) spaces that wasn’t filled out.
Q Now, I’m going to show you a document that I have marked “Defendant’s Exhibit Six” for identification and ask you without saying what’s in it, ask simply if you recognize that?
A I do.
Q And what is that?
A That’s the Foreman’s Report of Injury.
Q This is the Foreman’s Report of Injury that you received from Murphy Olivier whenever you received it?
A That’s correct.
Q Now — So, you had heard from Jim Hebert and you then set out to put together “Exhibit D-5”; is that right?
A That’s correct.
Q And what did Russell Leger tell you?
A Sir, as I remember it he told me he was in Room 5 drilling a tow when the drill slipped and it hurt his wrist.
Q Did he tell you anything about a hose flying off?
A (No response)
Q Let me ask you this: In “Exhibit D-5” did you write down what he told you?
A Everything that’s in there is what I found out by talking to him and Murphy Olivier.

Olivier’s report is suspect because it contains no blank spaces and is completely filled in; yet Wright, in his testimony, indicated that he had to interview Murphy Olivier because some of the blanks were not filled in. The foreman’s report of injury attached to the deposition of John L. Love, a claims adjuster for GAB who worked on this file, is substantially different from the one introduced into evidence and contains more blank spaces than completed spaces. These very substantial inconsistencies indicate to me that the trial court was clearly wrong in its finding that plaintiff produced no other evidence to substantiate his injury.

With regard to disability, the trial court said,

Even if, for argument sake, it be assumed plaintiff has proven an injury by accident on the job he has failed to prove disability-

Plaintiff’s injury was diagnosed as a fracture of the left carpal navicular and fractures of the middle and ring fingers of the left hand. Two orthopedic surgeons testified by deposition. Dr. Norman B. Morin was of the opinion that the carpal navicular fracture resulted in a 20% partial permanent disability of appellant’s left wrist and that the injury to his hand produced 15% partial permanent disability. Significantly, he felt that the wrist injury would undoubtedly lead to disabling pain with work which required forceful use of his hand and wrist.

Dr. Fred C. Weber, an orthopedic surgeon, to whom plaintiff was referred by defendant, felt that plaintiff had a 25% impairment of the wrist because of pain, but did not feel that plaintiff suffered severe incapaciting pain. However, when asked if he agreed with Dr. Morin’s report that plaintiff’s wrist injury would lead to disabling pain with work which required forceful use of the hand and wrist, Dr. Weber answered yes.

In my opinion, the trial court was clearly wrong in both of its factual findings because this record, when viewed in its entirety, clearly demonstrates that plaintiff proved his case as to injury and disability by a clear preponderance of the evidence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Don Keith MITCHELL & Carol Mitchell v. Woodrow J. THERIOT & Allstate Insurance Company.
    No. 14870.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Charles Borde, Denham Springs, for plaintiffs.
    James Kuhn, Denham Springs, for defendants.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is an action ex delicto by Don and Carol Mitchell, husband and wife, against Woodward R. Theriot and his insurer, Allstate Insurance Company. From a jury judgment in favor of both plaintiffs, defendants have appealed.

This case arises out of an automobile accident which happened on May 16, 1980, at approximately 5:45 a. m. on La. 3002 or Southrange Avenue in Denham Springs, Louisiana. It was raining heavily, with 35 to 50 miles per hour winds whipping the rain. Visibility was very poor. Immediately prior to the accident, vehicles operated by plaintiff, Don Mitchell, and defendant, Theriot, were both traveling north. Plaintiff testified that some few minutes prior to the accident he was driving 20 to 25 miles per hour, because of the bad weather and low visibility, when he was passed by a pickup truck. He described the pickup as light in color with a rack on the back. Defendant testified that he was driving 10 to 15 miles per hour when he was suddenly and without warning confronted with a wooden firecracker stand in the middle of his lane of travel. He immediately applied his brakes and his vehicle turned around, remaining in his lane of travel but facing the wrong way. His vehicle was a pickup, maroon and brown in color with a white rack on the back. Theriot denied passing anyone.

An eyewitness who was parked in an adjacent convenience store parking lot stated that the stand was in the road when he arrived, he had been there for at least five minutes prior to the accident, and saw no other vehicles pass on the highway while parked.

Just seconds after defendant’s vehicle collided with the firecracker stand and completed its turnaround, plaintiff’s automobile collided head-on with defendant’s pickup truck.

The jury returned a verdict in favor of both plaintiffs for $5,078.04, i.e., pain and suffering — $2,500.00, physical injuries— $300.00, medical expenses — $40.00, damages to auto — $2,118.04, and towing charge— $120.00. Mrs. Mitchell was a plaintiff because the automobile her husband was driving was purchased by her prior to their marriage and did not form part of the community.

In appealing defendants-appellants argue the trial court erred:

(1) in not granting defendants a directed verdict at the close of plaintiffs’ case;
(2) in not granting judgment in favor of defendants;
(3) in giving jury instructions which resulted in confusion and an improper verdict by the jury; and
(4) in failing to give a requested jury charge.

We pretermit discussion of specification of error number one because we find the jury in manifest error in rendering judgment in favor of plaintiffs. For the jury to find in favor of plaintiffs, the jury must have concluded that the firecracker stand was in the roadway for some time prior to the collision, that defendant was driving faster than the weather conditions warranted, that defendant passed plaintiff on the highway, that it was defendant’s negligent operation of his pickup truck which caused the initial collision with the firecracker stand, and that defendant could not plead “sudden emergency” because he was operating his vehicle negligently. The jury must have concluded that defendant’s negligence was the cause in fact of the collision between the two vehicles.

We disagree with this conclusion. We find no error in the jury’s conclusion that defendant was operating his pickup truck at a speed greater than that warranted by the weather conditions, thus he was negligent in the manner in which he was driving. However, for the jury not to find contributory negligence on the part of plaintiff, it must have concluded that plaintiff’s operation of a vehicle at 20 to 25 miles per hour in heavy rain with poor visibility was not negligent. Yet, although plaintiff operated his vehicle in what the jury found to be a non-negligent manner, plaintiff could not stop his vehicle in time to avoid colliding with the defendant’s pickup truck. The logical inference that must be reached is that even had defendant operated his vehicle in a similar non-negligent manner, he too would have been unable to stop his pickup truck in time to avoid hitting the firecracker stand. Therefore, the manner in which defendant operated his truck played no part in its collision with the stand.

Additionally, if the defendant in his pickup truck had not been present, it is also logical to conclude that since plaintiff could not stop in time to avoid hitting the pickup truck, he could not have stopped in time to avoid hitting the fireworks stand; thus, a collision would have taken place regardless of any negligence on the part of defendant.

We therefore conclude that any negligence on the part of defendant was not the cause in fact of the ultimate collision between these two vehicles.

Inasmuch as we have reached the above conclusion, we pretermit any discussion of assignments of error numbers three and four.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed and there is now judgment in favor of defendants with plaintiffs to pay all costs, both in the trial court and in this court.

REVERSED AND RENDERED.

SHORTESS, J., concurs.

      . Suit was filed against Woodrow J. Theriot, but during the defendant’s testimony the spelling of his first name and his middle initial were corrected.


author: SWIFT, Judge.

text:
    TWO O’CLOCK BAYOU LAND COMPANY, INC., Plaintiff-Appellant, v. STATE of Louisiana, Defendant-Appellee.
    No. 8808.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Brinkhaus, Dauzat & Falgoust, Jerry J. Falgoust, Opelousas, for plaintiff-appellant.
    Michael 0. Hess, Dept, of Justice, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

On December 2,1976, the State of Louisiana (State) and the St. Landry Parish Police Jury filed suit against the Two O’Clock Bayou Land Company, Inc., (Land Company) and others for a declaratory judgment to determine whether Two O’Clock Bayou in St. Landry Parish was navigable and for injunctive relief to prevent the Land Company from obstructing the bayou by a cable which it erected. The district court ruled that the bayou was navigable subject to public use and enjoined the obstruction. This court affirmed the judgment, concluding it was unnecessary to decide in which party the title to the bed of the bayou is vested. See State ex. rel. Guste v. Two O’Clock Bayou Land, 365 So.2d 1174 (La.App. 3 Cir. 1978); writ denied, 367 So.2d 387 (La.1979).

The Land Company has since filed this suit against the State seeking a declaratory judgment that petitioner is the owner of the bed of the bayou within certain sections of land patented by the State in 1860 to the plaintiff’s ancestor in title. The petition alleges that the patents conveyed all the lands within the sections without a reservation by the State of any part thereof. Alternatively, it pleads the unconstitutionality of LSA-C.C. Art. 453 (now Arts. 450 and 452) and, 1974 La.Const. Art. 9, § 3 (declaring the beds of navigable streams to be public and inalienable by the State) if it is found that Two O’Clock Bayou was not navigable in 1812 or 1860, but is navigable now and owned by the state — such violating the U. S. Constitution as a taking of private property without just compensation and being an ex post facto law. The defendant filed peremptory exceptions of sovereign immunity and no cause of action. They were heard on May 8, 1981, and thereafter the district court sustained the exception of sovereign immunity. The plaintiff has appealed.

Pertinent to our inquiry as to whether the State can be sued in this action without its consent is Art. 12, § 10, of the Louisiana Constitution of 1974 which provides:

“Section 10. (A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
“(B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.
“(C) Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.

The State contends that the plaintiff’s suit is not based in contract or for injury to property within the meaning of Art. 12, § 10, but is rather a suit for the determination of the ownership of land. Consequently, it falls in the category of “other suits” under Section 10(B) of the above provision of our constitution and the plaintiff must obtain the authorization of the legislature before it can proceed. We agree.

Prior to the adoption of our 1974 constitution an action to establish title or ownership to real rights claimed by the state could only be brought after obtaining authorization of the state. Daigle v. Pan American Production Company, 236 La. 578, 108 So.2d 516 (1958).

We are in full accord with the following observation of Judge Paul B. Landry, Jr., in his concurring-dissenting opinion in DiVincenti Bros. v. Livingston Parish S. Bd., 355 So.2d 1, 8 (La.App. 1 Cir. 1977), writ den. 357 So.2d 558 (La.1978).

“The debate on the article during the constitutional convention of 1974 indicates intent to clothe the sovereign with immunity from suit and liability in all cases except suits in tort and contract. The convention rejected amendments to proposed Article 12, Section 10, which would have terminated the doctrine of sovereign immunity in its entirety. The debate also discloses a majority rejection of a proposal, which merely protected the state and its agencies against seizure of public assets to satisfy judgments against the sovereign, by requiring that judgments against the sovereign be satisfied only out of funds appropriated for such a purpose. The clearly expressed intent was to adopt the doctrine of sovereign immunity as part of our basic law, and to waive that immunity in the field of contracts and torts as exceptions to the general rule.” [Emphasis added.]

Of particular significance to the present case we note the following remarks by delegates to the convention as to the meaning of the phrase “other suits against the state” in Art. 12, § 10(B), which require legislative authorization:

“MR. DREW
“Don, with reference to your statement as to all other actions, would you tell this body what those all other actions which you are not covering include?
“MR KELLY
“Well, Mr. Drew, I don’t think that really it would be incumbent, and I can’t describe and particularize all other actions, but as I understand it, I have come with an exception first, and any and all other.actions against the state would require the approval of your legislative body. The only thing that I’m saying that we do not need your approval to institute is suits in contracts, suits for personal injury and suits for property damage. All other suits would require the old legislative approval method. Now, what those might be, I can imagine titles to land; that was raised here, yesterday. Obviously that would be covered before anyone could contest the title to the property upon which the State Capitol rests, well, they would have to seek legislative approval in order to institute and file such a suit.” (Yol. VI, page 40, of the verbatim transcripts of the Constitutional Convention of 1973 of the 21 day. Emphasis added.)

Thus, it is rather clear that the framers of constitutional Article 12, § 10, did not intend that suits against the State to determine ownership of land be included in its waiver of sovereign immunity from suits in contract or injury to property. Instead, they considered that such actions were within the classification of “other suits” mentioned in subsection (B) which require legislative authorization for institution.

While it is true, as the plaintiff contends, that this suit will involve the consideration of state patents or contracts, this is equally the case in any petitory action as defined in LSA-C.C.P. Art. 3651. However, in our opinion neither action is a suit on a contract with the State within the meaning of Article 12, § 10. The nature and effect of the present declaratory judgment suit, like a petitory action, is to determine the title and ownership of land. It is not one for damages which may have arisen from the breach of any contract with the State nor for the specific performance thereof.

Nor is this a suit for the value of any property taken or appropriated by the State. Such question can only arise after the title and ownership of the bed of the stream is determined.

Since no legislative authorization for this suit has been granted, we conclude that the exception of sovereign immunity was properly sustained.

For the foregoing reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


author: REDMANN, Chief Judge.

text:
    NAME UNPUBLISHED v. SOUTHERN BAPTIST HOSPITAL, et al.
    No. 12222.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1982.
    Gertler & Gertler, Donald M. Pierce, New Orleans, for plaintiff-appellant.
    David M. Packard, Metairie, for defendants-appellees.
    Before REDMANN, C. J., and GULOTTA and KLEES, JJ.
   REDMANN, Chief Judge.

Plaintiff appeals from a summary judgment dismissing her action, clearly phrased as one for delictual damages, against a hospital and its insurer. The basis of the summary judgment is exclusivity of workers’ compensation, La.R.S. 23:1032, notwithstanding that the employer was not paying and had not tendered workers’ compensation benefits at the time the action was filed.

We reverse. We conclude that it is not shown that there is no dispute as to a material fact nor that as a matter of law plaintiff’s claim is governed by workers’ compensation; and we further conclude that exclusivity of workers’ compensation does not justify dismissal of an employee’s action against her employer but would at best justify limiting it to an action for workers’ compensation.

Plaintiff alleges that she was on a sidewalk about to enter the hospital (she originally alleged she was on the hospital’s entry ramp) when, because of defendant hospital’s negligence, a gunman kidnapped and then raped and sodomized her, as a consequence of which she has had medical problems and expenses, has lost and will lose wages, has suffered and will suffer mentally and socially, and has suffered and will suffer other pain and suffering, for which she asks damages of $525,000. Whether the sidewalk is part of the hospital grounds or is public is not alleged. Also not alleged but shown by the motion for summary judgment to be undisputed is that plaintiff was the hospital’s employee and was arriving at the hospital for her work beginning at 5:30 a. m. when the incident occurred.

The argument in favor of summary judgment was that, whether plaintiff was already on the employer’s entry ramp or still on the (public?) sidewalk, workers’ compensation is her exclusive remedy against her employer. Defendants argue that even if not yet on the employer’s property, plaintiff was within the “threshold doctrine” exception to the rule that accidents going to and coming from work are not compensable because they do not arise out of and in the course of employment.

We note that the general rule on the threshold doctrine is that it does not apply to every employee on a public way adjacent to the entry to the employer’s premises, Templet v. Intracoastal Truckline, 255 La. 193, 230 So.2d 74 (1969). It does not apply unless there is “a hazard ... to which the employee is regularly and peculiarly exposed by reason of his employment to which the public generally ... is not usually exposed to the extent of the employee.” Id., 230 So.2d at 81. See also Malone and Johnson, Workers’ Compensation (2d ed.), § 169.

Whether or not the employee was on the employer’s premises and, if not, whether or not the threshold doctrine applies, it was error to dismiss the plaintiff’s action against her employer on motion for summary judgment on the basis of exclusivity of workers’ compensation when no compensation had been paid or tendered before suit. Such an action can be dismissed only if it is shown that the employee is entitled neither to delictual damages nor to workers’ compensation benefits.

Defendants orally argued that plaintiff has elected to sue in tort and that we have no business being her advocate in suggesting that she alternatively has a workers’ compensation claim. We reject this view because it is precisely defendants who have urged upon the court the view that plaintiff has a claim in workers’ compensation, and, more important, because La.C.C.P. 862 obliges a court to “grant the relief to which the party ... is entitled even if ... not demanded .... ” Comment (b) declares that art. 862 “suppresses the harsh and unduly technical ‘theory of the case’ doctrine in Louisiana ... . ” Defendants’ argument that plaintiff’s petition limits this litigation to an action ex delicto is a “theory of the case” argument which art. 862 invalidates.

Our first conclusion is that, as to defendant employer, the employee’s action may not be dismissed on motion for summary judgment on the ground that her remedy is workers’ compensation, unless the employer also shows that the employee is not entitled to a judgment for compensation, either because no compensation is due or because the employer had paid or tendered to the employee before the action was filed, and continues to pay or tender, all workers’ compensation benefits due. No such showing is made here. Thus plaintiff is in any case entitled to pursue her action against the employer.

Our second conclusion is that, as to the defendant liability insurer not shown to be also the compensation insurer, it is not shown either that plaintiff was on the employer’s premises or, if not, what circumstances (more than mere nearness) bring her within the threshold doctrine. Thus exclusivity is not established.

Reversed; costs of this appeal to be paid by defendants.

      . There is a subsequent unlimited dismissal of this case as settled, on plaintiffs motion, but the other parties concede that that dismissal affects only a security guard company.


text:
    Roy Cheri CASEY v. Mildred Leyrer CASEY.
    No. 12520.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.

      Jacob Kansas, New Orleans, for plaintiff-appellant.
    Wilkinson & Wilkinson, John B. Wilkinson, New Orleans, for defendant-appellee.
    Before REDMANN, C. J., and GARRISON and BYRNES, JJ.
   REDMANN, Chief Judge.

A father appeals from an increase in child support and from a slightly later refusal to reduce child support. We consider the two rulings together.

The father’s gross income was $2,750 a month and the mother’s $1,320 at trial time. The record does not reveal what the father’s income was in 1976 when $650 was fixed by agreement (an amount maintained by reference in the 1978 separation and 1979 divorce judgments). It does reveal a $250 a month increase in the year before the trial. In the absence of evidence to the contrary, it is a reasonable assumption that earnings have increased fairly substantially in the high-inflation years following 1976. Appellant’s brief’s suggestion that he could have been earning more in 1976 than 1980 is a possibility that suggested at first a remand to us; but we will accept the general assumption as prima facie correct in the absence of an affirmative averment by appellant to the contrary. We conclude that it is a fair inference that the father’s monthly income has increased by far more than the last $250. The mother’s monthly income has also increased by perhaps $350 since 1976. At the same time the expenses of the children (14 and 10 at trial time) have also increased.

In addition to their earnings, the parents have income from a two-family house their former community owned. One part is rented for $250 monthly and the mother and children live in the other, larger part of the house. The monthly mortgage note on the house is now $342, which is paid with the $250 rent plus $92 from the mother. If one assigns half of the note, or $171, to the part of the house rented for $250, it may be fairly theorized that that half of the house produces a net $79 monthly income (save for repairs and maintenance) that the father is already contributing, in effect, towards the children’s needs. To put it another way, the mother and children enjoy the use of living quarters worth at least $250 at a net cost of $92, which is a $158 benefit attributable to the common ownership of the house by mother and father, and half of that $158 advantage, or $79, is attributable to the father.

The mother’s evidence is that she requires $1,794 monthly in addition to keeping any part of the house rent attributable to the father. Because the children are aged 10 and 14 and have school and summer school expenses, an analysis of the mother’s statement of expenses (about a third of which is for the children alone) suggests that an approximation of $1,200 monthly for the two children is not unfair. We also recognize that the mother’s own non-monetary contribution to the children must be weighed in striking a fair division of that $1,200 cost as between the father netting over $2,000 monthly and the mother netting $1,014 monthly. The net earnings alone, in light of the living expenses, might suggest that the father should pay at least twice what the mother pays, or $800 to her $400, because the mother’s level of earnings does not afford to her as much disposable income as does the father’s. One other relevant factor is that the father’s employer supplies him an automobile, saving him the costs he would otherwise have to expend for an automobile.

On the other hand, the father does show unusual obligations requiring $196 monthly (for 48 months) on a debt consolidation loan and $214 monthly on a lot in Baton Rouge he bought at employer’s cost when he expected to live there. These debts are in addition to a net, after rentals, of $356 monthly on the New Orleans house he thereafter acquired. He also owes $5,000 borrowed on a 90-day basis for what he describes as his “monthly deficits” of expenditures over income, and he pays $50 a month interest on that debt.

Yet it must be said that a father cannot spend $214 monthly on an investment (for that is what the Baton Rouge lot has become), and ask the court to reduce the amount of his child support on that basis. If there were money to spare it would be to the advantage of father and children (as prospective heirs) that the father invest rather than spend; but at the moment there is no money to spare because of all of the father’s unavoidable obligations. Presumably the sale of that lot would not only eliminate that $214 monthly note but might also provide a surplus to reduce other debt.

The trial judge had a most difficult task in giving appropriate weight to all of the mentioned factors. Ours, too, is a most difficult task. We are persuaded, however, that the trial judge’s discretion is not as great in cases of child support as in cases of personal injury general damages under La. C.C. 1934(3), where an award of $1,000 could not be construed to be abusive if $900 were not excessive. In cases of child support, all of the factors must be considered and the range of discretion is necessarily much narrower. We conclude that the award of $1,000 from the father should be reduced to $900 monthly. At that rate the father, with take-home pay of about twice the mother’s take-home pay of $1,014, will contribute about three times what the mother contributes towards the cash needs of the two children, rather than about five times her cash contribution. We do not suggest any mathematical formula by this observation; these proportions would be inappropriate in the case of spouses whose overall circumstances are different. The overall circumstances of this case persuade us that the child support award from the father must be amended to $900 a month.

Although we amend the last setting of child support, we affirm the trial court’s refusal to further reduce. The father moved reduction on the basis that he earlier was having no federal income tax deducted and now his employer was deducting $550 a month. The record does not establish the correctness of that amount, and we have noted the large interest deductions apparently available. Presumably the father owes some withholding, but his obligation towards his children must also be satisfied. It is a hard but inescapable fact that the increased cost of operating two households rather than one often makes available funds inadequate for both.

Award of $1,000 monthly amended to $900; dismissal of later rule to reduce affirmed, at father’s cost.

      . The father shows $550 federal income tax withholding, and this figure may be adjustable because of substantial interest payments on his $100,000 house and $19,500 lot in Baton Rouge (as well as his share of interest payments on the former community’s two-family house).


text:
    Fannie G. LEGRONE v. NEW ORLEANS PUBLIC SERVICE, INC. et al.
    No. 12829.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.

      Bartholomew & Jones, Patrick E. Jones, Metairie, for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for defendant-appellant New Orleans Public Service, Inc.
    Before REDMANN, C. J., and GARRISON and BYRNES, JJ.
   REDMANN, Chief Judge.

In this appeal from a judgment on jury verdict for $250,000 damages, defendant transit company argues both that it was not liable for its passenger’s injury and that, on various grounds, the award was excessive. We affirm.

The route of defendant’s bus in New Orleans included a right turn from Baronne street onto Erato street. The bus driver saw the bus just ahead of her experience difficulty with the turn because of automobiles parked close to the corner on both sides of Erato. She therefore pulled into the left lane of Baronne to make her right turn, so as to permit an entry into Erato on a less sharp turn. She was surely careful in many respects: she stopped the bus and even alighted from her seat and went to the door so as to survey her path to assure that she would not collide with the parked cars. But as she made her wide turn right from the left lane (very slowly, she testified), defendant taxicab, passing on her right intending itself to make a right turn, collided with the bus as both turned. (The taxicab defendants are not involved in this appeal.)

We simply cannot fault the jury on that liability call, especially given the basic rule that the transit company bears the burden of exculpating itself once injury to its passenger is shown. One may sympathize with the driver, but the inference was surely available to the jury that the driver did not exert the required care during the turn to prevent collision with any following driver in the right lane of Baronne who might suppose it safe to pass the bus because it was in the left lane. Liability must therefore be affirmed.

On quantum, defendant argues the award is improper because it is more than the petition asked; it necessarily includes a knee injury not shown to be caused by the accident; and it is in any case too much.

That an award exceeds plaintiff’s prayer is not grounds for reduction. La.C. C.P. 862 obliges a final judgment to grant the correct relief, even if not prayed for. The court may therefore award damages greater in amount than the amount prayed for by the petition, Cambrice v. Fern Supply, 285 So.2d 863 (La.App. 4 Cir. 1973); Wexler v. Martin, 367 So.2d 111 (La.App. 4 Cir. 1979), writ denied 369 So.2d 1352.

The knee problem, the jury could reasonably conclude, was related to the accident. Plaintiff indicated trauma to her head, neck and knee immediately after the accident upon admission to Charity hospital. That the knee injury did not fully manifest itself until six months later could not prevent recovery if causation is shown. The question presented by conflicting medical testimony was whether the accident caused the serious knee problem. Dr. Watermeier, the treating orthopedist, concluded that the problem was caused by the accident; Dr. Williams concluded it was congenital. We are simply not in a position to conclude that the jury was “clearly wrong,” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), in its conclusion that the injury was caused by the accident.

The $250,000 award is argued to be excessive in that it must include a substantial amount for lost earnings when plaintiff was unemployed and it exceeds prior awards for each element of plaintiff’s injuries.

An award for loss of earnings is not prevented by the plaintiff’s being unemployed or underemployed as of the accident; Folse v. Fakouri, 371 So.2d 1120 (La.1979). There is evidence from which one could estimate that plaintiff’s disability to work at all would cause a loss during her 33.6-year work-life expectancy of from about $130,000 to about $270,000, depending on whether minimum wages or plaintiff’s onetime wage of $6.52 hourly is used. Those figures employ a 10% inflation and 8% discount rate, which may be questioned: but the loss is in any event substantial. Dr. Watermeier testified that plaintiff’s neck and knee injuries left her 25% permanently disabled, and that further knee surgery would increase her disability another 10%. Her condition prevents prolonged standing or stooping, or operating machinery with her foot; she could not lift heavy weight from the floor.

The question of general damages — if the jury may have in its deliberations separated those from lost earning power and over $11,000 of medical expenses — is governed by the basic rule of C.C.1934(3) and the jurisprudence giving full implementation to the jury’s “much discretion” under that article. Reck v. Stevens, 373 So.2d 498 (La.1979), obliges a reviewing court to leave general damages undisturbed unless the court is able to articulate a clear abuse of the trier of fact’s much discretion.

All factors being considered, we simply cannot articulate any error in the lump-sum award of $250,000 for medical expenses, lost earning capacity and general damages.

Affirmed.


author: REDMANN, Judge.

text:
    Louis BRADLEY v. Michael TRIPKOVICH et al.
    No. 12894.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.

      John H. Brooks, Gretna, for plaintiff-ap-pellee.
    Drury & Grossel-Rossi, James H. Drury, New Orleans, for defendants-appellants.
    Before REDMANN, AUGUSTINE and LOBRANO, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment for $57,166.40 for damages from a collision between a tractor-trailer and a pick-up truck at the intersection of state highway 23 and St. Peter street in Oakville. At issue are liability and quantum. We affirm.

The tractor-trailer was being operated on highway 23 for defendant Sam Broussard Trucking Co., Inc. and was insured by defendant Empire Fire and Marine Insurance Company. The pick-up was being operated by plaintiff on St. Peter street. Plaintiff’s evidence is that the lights of defendants’ tractor-trailer were not turned on as it moved at highway speeds in the darkness of night. Defendants’ driver testified that the lights were on.

Defendant’s argument on liability is both factual and legal.

Factually, defendant argues, the improbability of anyone’s driving a tractor-trailer at highway speeds without lights, especially along the curving road from Venice to Oakville, some 50 miles. We agree that that is improbable, as, to a lesser extent, it is also improbable that one would drive even a few miles without lights. On the other hand, there is independent eyewitness testimony that this truck was indeed being driven without lights, and there is testimony from two others that some truck was driven past them without lights shortly before the accident. We note that while it is indeed improbable that a truck would be driven without lights, it is even more improbable that two or three different trucks would have been driven without lights at about the same time and the same place. The trial judge’s obvious factual conclusion was that the truck was unlighted, and the record does support that conclusion. We simply cannot say the trial judge was “clearly wrong,” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), in the credibility evaluation that is his province, Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Legally, defendant argues that plaintiff was at least contributorily negligent in trying to cross a four-lane, median-divided highway from a small street without looking sufficiently to see the truck (even if unlighted) that the other witnesses could see. We agree that one driving on a favored highway has only the duty of “slightest care” towards drivers entering from side streets, while one entering a highway from a side street has an obvious obligation to enter only when it is safe to do so. The concretization of the latter obligation depends, however, on such factors as speeds and distances and — critical to this case— visibility. The obligation upon the highway driver to have lights on is imposed not only in order to enable him to see others in his or her path, but also in order to enable others to see his or her vehicle. On a duty-risk analysis, we first conclude that the duty to have lights on at night includes, within the risks it intends to avoid, the risk that someone entering from a side street might fail to detect the approach of an unlit vehicle and therefore enter the path of the unlit vehicle. We therefore conclude that the fact that one does enter that path under those circumstances cannot be counted contributory negligence: that possibility cannot be both a purpose of the other driver’s duty and an excuse for its breach. This principle is established by the factually differing but legally similar cases of Pence v. Ketchum, 326 So.2d 831 (La.1976); Guilbeau v. Liberty Mut. Ins. Co., 338 So.2d 600 (La.1976); Baumgartner v. State Farm Ins. Co., 356 So.2d 400 (La.1978); Boyer v. Johnson, 360 So.2d 1164 (La.1978); and Rue v. State Dept. Hwys., 372 So.2d 1197 (La.1979). It has also been applied in Outlaw v. Bituminous Ins. Co., 357 So.2d 1350 (La.App. 4 Cir. 1978), writ refused 359 So.2d 1293 (La.); and Oliver v. Capitano, 405 So.2d 1102 (La.App. 4 Cir. 1981), writs refused 407 So.2d 731 and 734 (La.). Thus the possibility that plaintiff exercised something less than perfect night vision, or less than perfect attention, can not bar his recovery.

We therefore, affirm the trial judge’s determination of liability.

Defendant’s argument on quantum is limited to the $27,500 award for general damages; medical expenses, property damage and lost wages are not challenged.

Plaintiff’s worst injury was the traumatic tearing apart of the clavicle and scapular joint of the shoulder (the acromioclavicular joint), requiring surgical repair and later pin removal. Other injuries included fractured ribs. The orthopedic surgeon testified, almost two years after the accident, that plaintiff would have problems “indefinitely” in the future. Although defendants cite cases such as Dabov v. Allstate, 302 So.2d 697 (La.App. 3 Cir. 1974), writ refused 305 So.2d 539 (La.), which awarded $10,000 general damages, plaintiff cites LeJeune v. Flash Truck, 353 So.2d 296 (La.App. 1 Cir. 1977), which awarded $50,000 total damages (the special damage elements of which are not disclosed in the opinion). We simply cannot articulate any basis for concluding that $27,500 general damages award trans-greases the upper limit of the trial judge’s “much discretion,” C.C. 1934(3); Reck v. Stevens, 373 So.2d 498 (La.1979)

Affirmed.


author: GULOTTA, Judge.

text:
    Gerald TOMASICH v. UNITED STATES FIDELITY & GUARANTY COMPANY, et al.
    No. 12973.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Owen J. Bradley, Michael R. Guidry, New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Terry J. Freiberger, New Orleans, for defendants-appellees.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal, on an exception of no cause of action, of his suit against his employer, S. K. Whitty & Company, Inc. and its liability insurer, United States Fidelity & Guaranty Company, for injuries arising out of and in the course of his employment. Although no written reasons were assigned by the trial judge, it is apparent that the basis for the dismissal was a conclusion that plaintiff’s exclusive remedy against his employer was in worker’s compensation. (LSA-R.S. 23:1032). We affirm.

It is plaintiff’s contention that Whitty was sued not as an employer but as the manufacturer and designer of equipment that caused injury to him. According to plaintiff, under the doctrine of “dual-capacity”, an employer, normally shielded from tort liability by worker’s compensation legislation, may become liable in tort to his employee if the employer has a second capacity conferring additional, independent obligations beyond those of an employer.

The pertinent allegations of plaintiff’s petition are:

“V.
S. K. WHITTY & COMPANY, INC. is a corporation doing business within the jurisdiction of this Honorable Court, and, at all times pertinent hereto, was the manufacturer and/or designer of the leads which caused injury to the plaintiff.
VI.
On or about August 15, 1979, while the plaintiff was engaged in the course and scope of his employment for his employer, S. K. WHITTY & COMPANY, INC., he was required to climb up the lead whereupon the crane operator swung the hammer over the lead. The plaintiff was required to take the base of the hammer to try to guide it into the lead, when his right arm was suddenly and violently caused to be jammed between the hammer and the lead.
XIX.
In addition to insuring the liability of the individual defendants sued herein, UNITED STATES FIDELITY & GUARANTY COMPANY, at all times pertinent hereto, was the liability insurer of all employees of S. K. WHITTY & COMPANY, INC. from the time of its existence. All of these employees were negligent in the manner enumerated above.”

Taking the above allegations as true, for purpose of deciding the exception of no cause of action, we find no error in the trial judge’s dismissal of plaintiff’s suit against Whitty. Plaintiff’s allegations against his employer as “the manufacturer and/or designer of the ‘leads’ which caused injury”, even if viewed as an assertion of “products liability”, do not compel a different result. As this court held in Atchison v. Archer-Daniels-Midland Co., 360 So.2d 599 (La.App. 4th Cir. 1978), writ denied, 362 So.2d 1389 (La.1978), where a plaintiff alleged improper design and construction of certain equipment by his employer had caused his injury while at work, there is no cause of action in “products liability” against one’s employer for injury for which the employer owes worker’s compensation. Our decision in At-chison is dispositive of the issue in this case. Moreover, we know of no Louisiana authority following the “dual-capacity” doctrine cited by plaintiff.

Having concluded that plaintiff’s exclusive remedy against Whitty is in worker’s compensation, it follows that U.S.F. & G., as Whitty’s liability insurer, cannot be held liable for Whitty’s alleged fault.

Accordingly, the judgment maintaining defendants’ exception of no cause of action is affirmed.

AFFIRMED.

      . In support of the dual-capacity argument, plaintiff cites Vol. 2A Larson’s Workmen’s Compensation, Sec. 72-80 and a number of non-Louisiana cases.

      . For purposes of clarity, we point out that our judgment only affirms the trial court’s maintaining of the exception of no cause of action filed by U.S.F. & G. and Whitty together, and the dismissal of plaintiffs claims against Whitty and U.S.F. & G. in the capacity as Whitty’s liability insurer. A separate exception of no cause of action filed by U.S.F. & G. alone, concerning plaintiffs allegations of U.S.F. & G.’s independent, not vicarious liability based on U.S.F. & G.’s independent failure to inspect the premises, was overruled by the trial court. U.S.F. & G. has not appealed that judgment, and, hence, plaintiffs suit as against U.S.F. & G. on those allegations remains viable.


text:
    AMOCO PRODUCTION COMPANY v. TEXACO, INC.
    No. 12984.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.

      Robert C. Smith, Gordon, Arata, McCol-lam & Stuart, John M. McCollam, New Orleans, for plaintiff-appellant.
    Gene W. Lafitte, John M. Wilson, Joe B. Norman, Liskow & Lewis, W. J. Conrad, T. W. Cerniglia, Robert Plumb, New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

This dispute centers around whether Amoco is responsible for the payment, as a penalty cost, of 200% of the total cost of construction of a gas pipeline as claimed by Texaco, or 200% of Amoco’s 25% share of the construction of the line.

The trial judge, by summary judgment, concluded that Texaco was entitled to recover 200% of the total cost of construction. Amoco appeals. We affirm.

Amoco Production Company and Texaco, Inc. entered into a joint operating agreement covering an offshore oil and gas lease in the Eugene Island area. Amoco owned 25% of the lease and Texaco owned the remaining 75%. The revenue and expenses were shared in those proportionate amounts, and Texaco is the operator of the well.

Texaco proposed to Amoco the construction and operation of a gas pipeline to transport gas from the well site to third-party purchasers. The proposal included an agreement by Amoco to bear 25% of the construction and operating costs.

Amoco notified Texaco in an April 26, 1972 letter that it was unwilling to contribute to the proposed construction and installation of the pipeline because it deemed the project to be “economically unattractive.” After discussions regarding penalty construction costs to be assessed against Amoco because of its non-participation in the construction, plaintiff and defendant entered into the following letter agreement.

The pertinent part of the agreement drafted by Texaco on September 7, 1972 and accepted by Amoco on October 13,1972, reads as follows:

“1. ...
2. In consideration for such risk and expense to be undertaken by Texaco, Amoco hereby relinquishes unto Texaco all of Amoco’s rights and interest in its share of gas which is produced from the Eugene Island Block 275(A) Platform and the utilizing of said flowline until such time as Texaco has received out of Amoco’s share of production 200% of the cost of the pipeline installation, 100% of operating expenses pertaining thereto, and 100% of the compression charges, which charges are outlined in Texaco’s letter to you dated January 27, 1972.”

In the letter agreement, Amoco relinquished its rights and interests in its share of the gas as provided in the above paragraph to allow Texaco to enter into a venture that Texaco felt was profitable and Amoco felt was not.

It is plaintiff’s contention that because of the ambiguity in the October 13,1972 letter agreement, the trial judge erred in not admitting into evidence and considering earlier communications to obtain the true intent of the parties. According to plaintiff, when the earlier correspondence is read together with the letter agreement, and parole evidence is considered after trial on the merits, plaintiff would establish defendant’s entitlement only to 200% of plaintiff’s 25% proportionate share of the construction costs.

In this connection, Amoco argues the trial judge erred in granting the summary judgment in favor of defendant where the critical issue to be determined is the intent of the parties to the letter agreement. Amoco claims because the agreement did not reflect the plaintiff’s true intent, the contract should be reformed to reflect the assessment of penalty costs on Amoco’s proportionate share of the total construction cost. Finally, Amoco claims that because of its unilateral error in the confection of the contract, the agreement should be rescinded.

PRIOR CORRESPONDENCE AND PAROLE EVIDENCE

We reject plaintiff’s contention that the trial judge failed to consider prior correspondence and parole evidence prior to rendering the summary judgment. In the June 22, 1981 judgment, the trial judge specifically stated: “... Upon considering defendant’s motion, the affidavit of Mr. Hester (with attached documents), the affidavit of Mr. Manning (with attached documents), the depositions on file, and the memoranda submitted by each side, .... and finding that the pleadings, depositions and answer to interrogotories, together with the foregoing affidavits, show that there is no genuine issue as to material fact and that mover is entitled to a judgment as a matter of law, and for oral reasons assigned on June 19, 1981; ...” In the oral reasons the trial judge referred to the earlier correspondence. In those reasons he stated that:

“. .. The court is of the opinion that the agreement entered into on September 7, 1972, culminated a series of back and forth recommendations by both companies as to what would be the end result of the cost of laying the pipeline...”

Again, in the oral reasons, the trial judge in referring to earlier correspondence stated:

“. .. Various correspondence went back and forth between the companies culminating in an agreement dated September 7, 1972.”

We have no way of knowing what weight the trial judge gave to the earlier correspondence. However, when we read that correspondence and the letter agreement, we are led to conclude that Amoco agreed to pay 200% of the total construction cost of the pipeline and that amount would be deducted from “.. . Amoco’s share of production ...”

We are not persuaded by Amoco’s reliance on the following language from Texaco’s letter of July 21, 1972 as support for Amoco’s interpretation.

“As an alternative to Amoco’s participation in this line, Texaco will proceed at its sole cost, risk and expense in installing this line and proposes that Amoco relinquish to Texaco all of its rights and interest in its share of gas produced from this lease until such time as Texaco has received out of Amoco’s share of production 200% of the cost of pipeline installation and operating expenses pertaining thereto, royalties applicable to this production, plus the compression charge outlined in our letter to you dated January 27, 1972, which would have been attributable to Amoco’s share of the total cost.” (Emphasis ours).

It is clear from a reading of the above language, together with the letter of July 21, that the phrase “. . . which would have been attributable to Amoco’s share of the total cost” modifies only the phrase “compression charge” as outlined in the January 27 letter, and does not refer to “200% of the cost of pipeline installation and operating expenses”, as contended by Amoco. The meaning of the above language when read with the earlier correspondence is clear. We find no ambiguity.

We likewise find no merit to Amoco’s argument that evidence of custom and usage in the oil and gas industry should be admitted to interpret the agreement. LSA-C.C. Arts. 1963 and 1964 provide:

“Art. 1963. Clear intent unaffected by equity, usage or law. When the intent of the parties is evident and lawful, neither equity nor usage can be resorted to, in order to enlarge or restrain that intent, nor can any law operate to that effect, unless it be some prohibition or other provision, which the parties had no right to modify or renounce.”
“Art. 1964. Incidents supplied by law, equity or usage. Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.”

Although Texaco concedes the agreement is contrary to established usage, evidence of custom and usage cannot be relied upon to reform or change an agreement that is not ambiguous, as in our case. Accordingly, we reject Amoco’s argument.

Having so concluded, we cannot say the trial judge, acting on the motion for summary judgment, erred in his interpretation of the letter agreement in which Amoco agreed to pay 200% of the total cost of construction of the gas pipeline.

REFORMATION

We find no merit to plaintiff’s contention that the agreement should be reformed to reflect Amoco’s true intent.

The jurisprudence is clear that the burden is on one seeking reformation of an instrument to prove error by clear and convincing evidence. See Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957); Walker v. Jim Austin Motor Company, 162 So.2d 135 (La.App. 3d Cir. 1964), writ refused, 246 La. 354, 164 So.2d 353 (1964); Rougeau v. State Farm Mutual Automobile Ins. Co., 262 So.2d 803 (La.App. 3d Cir. 1972). Further, in an action for reformation based on error, a showing must be made by clear and convincing evidence that the error was mutual as to the contracting parties. See Prejeant v. Hero Lands Company, 244 So.2d 613 (La.App. 4th Cir. 1971); Campo v. LaNasa, 173 So.2d 365 (La.App. 4th Cir. 1964), writ denied, 175 So.2d 109, 247 La. 874 (1965); Adair v. Compton, 360 So.2d 532 (La.App. 2d Cir. 1978); and Jefferson Truck Equipment Co. v. Guarisco Motor Co., 250 So.2d 211 (La.App. 1st Cir. 1971).

Plaintiff’s contention is that it unilaterally did not intend to agree to the penalty cost as contained in the letter of agreement as interpreted by Texaco and the trial judge. Absent a showing of mutual error, we reject Amoco’s argument seeking reformation.

RESCISSION

Finally, we find no merit to plaintiff’s argument that the agreement should be rescinded. This argument, like that seeking reformation, relies on plaintiff’s claim of error in not intending to agree to that which was stated in the letter of agreement and the earlier correspondence.

A contract may be rescinded for unilateral error of fact that is the principal cause for making the contract, where the other party knows or should know it is the principal cause. LSA-C.C. Art. 1845; Deutschmann v. Standard Fur Company, Inc., 331 So.2d 219 (La.App. 4th Cir. 1976). Although error in the determining motive or principal cause vitiates consent and invalidates the contract, error as to a subsidiary motive does not. Hall v. Arkansas-Louisiana Gas Co., 368 So.2d 984 (La.1979).

The issue in our case, therefore, is whether the amount of the penalty to be paid by Amoco was the principal cause of the agreement. We think not.

It is clear that the determining motive of the parties was to resolve whether Amoco would participate in the construction of the gas pipeline or whether Texaco alone would bear the cost. After negotiations, Amoco decided not to contribute toward the construction cost because it was not economically feasible in Amoco’s opinion. The amount of the penalty was only subsidiary to the principal cause of the agreement, i.e., Amoco’s non-participation in the construction. Accordingly, Amoco’s unilateral error concerning the penalty cannot serve as a basis for rescission.

In Ardoin v. Central Louisiana Electric Company, Inc., 318 So.2d 5, (La.1975), in a dispute involving the determination of the responsibility for payment of cost for the extension of a water line, the Supreme Court affirmed the trial court’s summary judgment concluding that the utility company was not obligated to extend the water main unless plaintiff paid the cost in accordance with a contract between the parties. Plaintiff argued that if defendant were not obligated to extend the water line as plaintiffs understood the contract required, plaintiff’s misunderstanding was error that vitiates his consent. In rejecting this contention, the Supreme Court stated:

“... Such a contention cannot stand in the face of the contracts plain and unambiguous language. Nothing about the contract, or for that matter, the facts upon which it was based, indicates that there was error which would form the basis for avoiding the contract for lack of consent. LSA-C.C. Art. 1823.
A claimed error, as in the instant case, cannot have the effect of voiding a contract otherwise complete as to intent and purpose. Such result impairs the sanctity of obligations and nullifies the effect of law to which they are entitled. [Citations]”

The Ardoin court, concluding that the agreement between the parties was plain and unequivocal, rejected plaintiff’s argument to rescind the contract.

In our case, we likewise conclude that the contract is plain and unequivocal and that plaintiff’s error, if such existed, was an error of judgment and not in the clear meaning of the language of the letter of agreement and the earlier correspondence.

Accordingly, we reject the argument that the contract should be rescinded. Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.


author: SCHOTT, Judge.

text:
    SUCCESSION OF Theodore K. LAWLESS.
    No. 12997.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Carol Lynn Doskey, Edward J. Castaing, Jr., Dymond, Crull & Castaing, New Orleans, for plaintiffs-appellants.
    Charles Kohlmeyer, Jr., Alan H. Goodman, Deborah F. Zehner, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

Dr. Harold W. Thatcher and Jerome W. Black have appealed from a judgment removing them as co-executors of the Succession of Theodore K. Lawless. The issue is whether the record supports the trial court’s decision to remove them because of their mismanagement of the estate.

Dr. Lawless, a Chicago resident, died there on May 1, 1971. Pursuant to his last will and testament The Continental Illinois National Bank & Trust Company of Chicago, Thatcher and Black were appointed his co-executors. In these ancillary proceedings made necessary because of the succession’s ownership of immovable property here, Thatcher and Black were appointed co-executors. The succession property in Louisiana is an apartment complex, known as Evangeline Apartments, consisting of thirteen units in four buildings adjacent to Dillard University in New Orleans. Under the provisions of decedent’s will this property is to be placed in trust with Dillard becoming a principal beneficiary of the trust. In February, 1981, Dillard filed a petition to remove Thatcher and Black on the ground that they have failed to maintain the property as required by law and as ordered by the court appointing them coex-ecutors on March 31, 1976.

The evidence is uncontradicted that these apartments are in rundown condition. Black himself admitted this, characterizing their condition as “terrible” and “deplorable.” He offered in evidence a letter he wrote to the tenants in the complex on December 7, 1976, in which he set forth his plans to improve the property. However, nothing was done to implement these plans. As a result the apartments have not had a good occupancy rate. At the time of the trial two had been vacant for over 32 months and three for over 18 months. In contrast, a comparable apartment complex adjacent to the Evangeline Apartments, known as Gentilly Gardens, has been almost one hundred percent occupied, one out of eight being vacant at the time of the trial but with a waiting list for occupancy in these apartments.

The only explanation offered by Thatcher and Black for their neglect of the apartments was that the funds collected from tenants, amounting to over $20,000, were held by the bank in Illinois and it refused to release such funds.

As succession representatives appellants were charged with the duty of preserving and managing this property in the manner of prudent administrators. LSA C.C.P. Arts. 3191 and 3221. Their failure to perform these duties made them subject to removal by the court. Art. 3182. Almost five years had passed under their management when this action was commenced and they offered no satisfactory excuse for their failure to perform their duties. The record does not explain why they transmitted these rental receipts to the bank in Chicago without withholding sufficient sums to maintain the property and if they were hampered in the discharge of their duties by the bank there is no reason why they could not have applied to the court for appropriate relief against the bank. Even if sufficient funds were not available from rent receipts they could have availed themselves of the provisions of C.C.P. Art. 3228 authorizing the court to permit a succession representative to borrow money for the purpose of preserving succession property.

The record supports the decision of the trial court to remove these executors, and the judgment appealed from constitutes a sound exercise of the discretion of the trial court in such matters. Hamilton v. McKee, 371 So.2d 1115 (La.1979).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . The bank did not apply for confirmation as co-executor because it is a foreign corporation not qualified to do business in Louisiana. See C.C.P. Art. 3097 and R.S. 12:302.

      . Thatcher and Black objected to testimony concerning the Gentilly Gardens Apartments as irrelevant but the trial judge properly overruled this objection.


author: BARRY, Judge.

text:
    Janice Marie DUCREE v. Cleveland THOMAS.
    No. 12975.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.

      Weir & Robinson, Frank Sloan, Metairie, for plaintiff-appellee.
    McCloskey, Dennery, Page & Hennesy, Mitchell J. Hoffman, Edna Ann Wise, New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

Plaintiff appeals the amount and effective date of the trial court’s order for child support.

On May 13,1980, plaintiff filed a petition seeking a declaration that defendant is the father of her IV2 year old son and requested support of $300.00 per month. On January 9, 1981 the parties stipulated that defendant is the father of the child and after a hearing the Trial Judge ordered the defendant to pay $150.00 per month child support effective from that date. The court determined the child’s expenses amounted to $300.00 per month and each parent has an equal obligation to support under LSA-C.C. Art. 240.

Plaintiff claims two assignments of error: the amount of support was computed erroneously and payments should be effective from the date of judicial demand.

Plaintiff first contends the Trial Judge erred by applying the parents’ equal obligation to the petition request ($300.00) rather than the amount plaintiff testified was necessary ($400.00). Plaintiff also asserts she works and home care for the child ($200.00) is a compensible expense. Ogborn v. Bush, 255 So.2d 199 (La.App. 4th Cir. 1971) writ refused, 260 La. 412, 256 So.2d 293 (1972).

Each party submitted income and expense statements. Plaintiff nets $1,110.72 and claimed expenses of $1,080.00 which included the $400.00 allegedly needed for the child. Defendant’s take home pay is $2,025.00 per month which includes his wife’s salary and $725.00 in rental income. His expenses amount to $1,976.33 including repayment of several loans incurred in a divorce settlement with his first wife.

It appears to us the Trial Judge considered all factors. The court questioned plaintiff’s claim of $200.00 for day care and plaintiff admitted her sister kept the child while she worked. The court also had to consider the father’s expenses and ability to pay, including $100.00 per month for a child of a previous marriage. Defendant contends $150.00 per month is consistent with his capacity to pay and adequately meets the child’s needs.

Contrary to plaintiff’s assertion, the court clearly realized plaintiff was seeking $400.00 per month because she mentioned this amount three times in fifteen pages of testimony. (The entire transcript was twenty-four pages.)

The Trial Judge has considerable discretion in setting child support which will not be disturbed on appeal unless there is clear abuse of discretion. Ducote v. Ducote, 339 So.2d 835 (La.1976). The amount cannot be determined with mathematical certainty and all facts and circumstances of each case must be considered. Fall v. Fontenot, 307 So.2d 779 (La.App. 3rd Cir. 1975). This was a factual determination which is not manifestly erroneous or an abuse of discretion and should not be disturbed.

Plaintiff next contends the lower court erred by failing to order payments from the date of judicial demand. She alleges the Trial Judge intended to make the obligation retroactive to the filing date, but incorrectly accepted the defendant’s suggestion that support was not due until the judgment date. Plaintiff urges the Trial Judge must make the payments retroactive to the date of judicial demand unless it is impractical or inequitable to do so. In re Greene, 300 So.2d 516 (La.App. 2nd Cir.) writ refused, 302 So.2d 621 (La.1974).

Defendant counters that our jurisprudence permits the trial court to set the date to begin support payments within its sound discretion. In re Greene, supra failed to set commencement at the date of judicial demand. Defendant asserts the same considerations are present here as in Ogborn, supra, i.e., the defendant is burdened with other financial obligations and family expenses: a house note, three loans, other child support and obligations shown on his expense sheet. Defendant states this court in Ogborn did not find it necessary to indicate the impractically or inequity in refusing to make the obligation retroactive. In Ogborn, also a paternity suit, we fixed child support one week after the date of the appellate judgment.

We feel the Trial Judge was within his sound discretion in holding that this defendant should not be held responsible for child support payments before he was adjudicated the father of the child. Our case law does not restrict the Trial Judge’s discretion to commence child support payments on some date other than judicial demand. The proper test should be whatever is fair and reasonable under the circumstances. The Trial Judge has wide discretion in setting the amount of support and should be accorded the same discretion in specifying a commencement date for the payments.

For the foregoing reasons the judgment of the district court is affirmed with plaintiff to pay all costs.

AFFIRMED.


author: BYRNES, Judge.

text:
    David PATIN v. Darren DeSTEVENS, Joseph De Stefano, d/b/a De Stefano and Son, Inc. and Fireman’s Insurance Company.
    No. 12967.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.

      Yada Magee, New Orleans, for plaintiff-appellee.
    Owen W. Joyner, Metairie, for defendants-appellants.
    Before WARD, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

This is an appeal from a default judgment entered against Darren DeStevens for $1,860.67. Mr. DeStevens was served personally with a Petition For Damages, but failed to file an answer. The defendant’s employer, Joseph DeStefano, and his insurer, Fireman’s Fund Insurance Co., were likewise served; however, an answer was filed on their behalf. Prior to confirming a default against DeStevens and the filing of an answer by the other defendants, a Motion for Extension of Time was filed on behalf of all defendants. Defendant alleges two errors on appeal, the first being that the trial court judge erred in taking too active a role in assisting plaintiff in presenting his case, and the second being that the judgment is null because the plaintiff’s attorney didn’t bring the expired Motion for an Extension of Time to the attention of the judge.

We find no merit to the first specifir-cation of error. The trial judge is certainly within the scope of his duty when he asks questions from the bench in order to adjudicate a matter fairly. LSA-C.C.P. Art. 1631 states in part:

“The court has the power to require that the proceedings shall be conducted with dignity and in orderly and expeditious manner, and to control the proceedings at trial, so that justice is done.”

In Texas Pacific-Missouri Pacific Terminal R. of New Orleans v. Welsh, 179 F.2d 880 (5th Cir. 1950) the court stated:

“As a general rule a trial Judge, in order to maintain that impartiality which proper trial technique demands, should be careful not only as to the number and type of questions propounded by him to witnesses but also to the manner in which they are propounded. The interrogation of witnesses by the trial Judge is by no means prohibited but often times it is necessary to the administration of justice in developing the truth and aiding the jury to understand the situation. The extent to which this may appropriately and reasonably be done is a matter which must rest largely in the. sound and una-bused discretion of the trial Judge.” [Emphasis ours]

A careful reading of the record leads this court to the conclusion that the judge did not attempt to try plaintiff’s case. He only did what could be expected of any competent judge in a default judgment proceeding, as he was merely trying to elicit facts which had been omitted, but were pertinent in deciding the case.

Likewise, we find no merit to appellant’s second specification of error. The transcript reveals that the trial judge specifically asked to see the record prior to entering the judgment. The motion for Extention of Time to plead had expired; and, therefore, the judge acted properly in granting judgment against DeStevens having noted that no answer had been filed. We, therefore, affirm the lower court’s ruling and assess all costs of this appeal to appellant.

AFFIRMED.


author: BYRNES, Judge. BARRY, Judge,

text:
    SUCCESSION OF Jose Cipriano VELASQUEZ-BAIN a/k/a Jose Cipriano Velazquez, etc.
    No. 12686.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Arthur L. Ballin, David A. Kattan, New Orleans, for plaintiffs-appellants.
    Clifford P. deLaup, Henry L. Klein, New Orleans, for defendants-appellees.
    Before BARRY, WARD and BYRNES, JJ.
   BYRNES, Judge.

This is an appeal from a trial court ruling dismissing appellants’ petition for a Declaratory Judgment recognizing them as owners of certain certificates of deposit because of the failure of appellant to produce a photocopy of the donation inter vivos conveying ownership of the certificates of deposit. For the reasons below we reverse the lower court with instructions to proceed with the Declaratory Judgment rule using the certified copy of the donation inter vi-vos as presented by appellants rather than the original donation inter vivos or photocopy thereof as originally ordered by the trial court.

The issues presented on appeal, as seen by this court, are but two. The first issue presented is whether a duly certified and authenticated copy of a foreign notarial act will serve as the best evidence when the original act or photostat thereof cannot be produced. The second issue arises from the first: where there exist allegations of forgery and other improprieties pertaining to the form of the instrument itself and relating to the characteristics of the original document, is the burden on the appellants to produce the original instrument, or photocopy thereof, or is the burden placed on the party who alleges fraud, forgery and other improprieties which go to the very heart of the document?

The certified and authenticated copy of the donation inter vivos was presented to the trial court attached to a letter signed by the American Counsel for Honduras, which stated that full faith and credit was due the attached donation. We are of the opinion this satisfies the requirements of La.R.S. 35:551 et seq., and therefore we accept the donation as having full force and effect of an authentic act executed in this state.

It is this court’s appreciation that the laws of the Republic of Honduras, the country in which the donation inter vivos was executed, provide that the original instrument of donation is retained by the Notary in his “Protocol” (essentially the Notary’s record). Article 55 of the Notarial Code of Honduras provides that the Ap-pearer, in this case, Velasquez-Bain, is entitled to what is known as “first copy” of the instrument, otherwise known as “testimo-nio”. The first copy is not a carbon or a photocopy, rather it is transferred from the original, either in longhand or typed out, and on which no actual signature appears except that of the acting Notary who indicated thereon whether it is first copy or a second copy, etc. This court further notes that the Honduras Code of Procedure does not permit the introduction into evidence of photostatic or carbon copies as proof of the public instrument. Further, under Honduras law, a certified copy is obtained under the form of testimonio and said form constitutes a public instrument. Testimony indicates that the copy of the donation inter vivos presented to the trial court is of the kind usually generated by transactions such as this donation, much the same as photocopies are generated pursuant to notarial acts perfected in Louisiana. The court takes cognizance of certification executed by two Honduran notaries whereby they translate certain provisions of the Honduran Notarial Code. The following provisions are germaine to our decision and we include them herein:

“Article Number 1., The Notarial Profession is an Institution of the State that guarantees the security and perpetual guardianship of the official acts and of the contracts and dispositions between living persons or for cause of death. Article Number 11., The Notaries are responsible for the integrity and conservation of the Protocols and they will keep them with the diligence that corresponds to the confidence that the public places in them. If the Protocols were deteriorated or lost for lack of diligence of the Notaries, he will replace them at his expense, remaining liable to the payment of the damages caused to those interested, without detriment to his other legal responsibilities.
Article Number 13. PROTOCOL is the orderly collection of the original instrument authorized by the Notary and of the diligences and documents that he records during the year. The Protocol will be composed of one or more binded volumes, numbered and with all the other requisites established in this law.
Article Number 14., When the original instruments, certified copies of these and all other notarial acts there appear signs of criminal acts, the Judge or respective Tribunal, will, by own motion or by order, examine the corresponding instruments and will order or cause to be ordered, in accordance with the facts, the steps he estimates pertinent for the proof of the facts, without permitting the separation of the original document from the volume.
Article Number 15., The Notaries will not permit that any document under their custody to be taken out of the archives, for reason of their ministry.
Article Number 18., On the last day of February of each year, at the latest, the Notaries shall send to the Supreme Court of Justice, certified copies authorized in legal form, of all the public instruments contained in the Protocol of the preceding year. These certified copies shall be presented on second-class sealed paper, without the tax stamps.
Article Number 19., The Protocols must be kept with due care and only those interested in one or more instruments will be able to become aware of their contents, in the presence of the Notary. The Protocols can also be examined by orders of the competent Judge or Tribunal for comparisons, handwriting examinations, signature confrontations and other analogous purposes.
Article Number 33., The original instrument is the one concerning the Act of Contract submitted to his authorization, signed by the appearers and witnesses that know how and can, sign and signed and sealed by the Notary.
OF THE COPIES THAT CONSTITUTE PUBLIC INSTRUMENTS
Article Number 55., First copy is the one taken from the original instrument that the grantors have a right to obtain for the first time.
Article Number 57., Only the Notary or functionary legally in charge of the Protocol will give copy.
Article Number 65., In the case of loss of the Protocol or that the Notary takes it out of the Republic the certified copies to which Article 18 refers, extended by the Secretary of the Supreme Court of Justice, under previous order or the Tribunal, will have the same force as if it had been taken from the Protocol.
Article Number 79., The inutility or loss of one or more Protocols can be denounced by capable persons for the effect; and if the denunciation is done before the Notary notifies the respective Judge, the corresponding criminal procedure will be initiated against the Notary, he then being compelled to prove his lack of fault. If he does not vindicate himself, the Notary will suffer the penalties for infidelity on the custody of documents that is indicated in the Criminal Code.”

As to proof of the master draft, protocol or original records when such records have disappeared cannot be obtained, Article 1502 of the Honduras Civil Code provides that:

“Article 1502 — When the master draft, Protocol, or original records have disappeared or cannot be obtained, proof shall be made by:
1st. The first copies, made by the public official who authorized them;
2nd. Subsequent copies, issued by judicial order, with a list of the interested parties.
3rd. Those copies which have been made without judicial order in the presence and with the consent of the interested parties. In the absence of the above-mentioned copies, proof shall be made by any other copies which have an age of twenty or more years, provided they have been taken from the original by the official who authorized them or other persons entrusted with their custody.
Copies of the lesser age, or which have been authorized by a public official in whom the circumstances mentioned in the foregoing paragraph are not met, shall serve as a written presumption of proof. The probative effect of copies of a copy shall be considered by the courts according to the circumstances.”

It is this court’s understanding of the laws of Honduras as above quoted, that the certified first copy of the donation inter vivos presented to the trial court Judge is acceptable as proof of a public document. We therefore find under the laws of Honduras as applied to this ease, the trial court Judge erred in not accepting as best evidence the certified copy of the donation inter vivos as presented.

The second issue presented this court, that of the alleged forgery of the donation inter vivos, is now dealt with. LSA-C.C. Art. 2236 states:

“An authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it is declared and proved a forgery.”

The latest pronouncement of the courts pertaining to the burden of proof in cases of alleged forgeries comes in Coleman v. Egle, 376 So.2d 983 (La.App. 1st Cir. 1979), Writ denied 379 So.2d 15 (La.1980) whereby the court stated that the burden of proof of a forgery falls squarely on he who alleges the forgery.

Louisiana jurisprudence, together with the above quoted codal provision, clearly establishes that in the absence of forgery an authentic act is full proof of itself and that a person denying the validity of his signature or the signature of the person from whom he derives his claim, on the notarized instrument bears the burden of proof that the signature is a forgery.

It is, therefore, the finding of this court that if in the course of the Declaratory Judgment rule to be heard by the lower court, allegations of fraud and forgery do indeed present themselves, it is up to the parties alleging the forgery to prove by whatever means necessary the existence of the allegations, since the certified and authenticated copy as presented, absent such allegations, is sufficient proof of the existence of the donation inter vivos.

We therefore remand this case to the lower court with instructions to commence Declaratory Judgment proceedings not inconsistent with the views herein expressed.

All costs of this appeal are to be assessed to appellees.

REVERSED AND REMANDED.

BARRY, J., concurs with reasons.

BARRY, Judge,

concurring.

Appellant failed to comply with the lower court’s order to produce a photostatic copy of the donation. I’m satisfied a photocopy of the “protocol” can be made. However, appellees attack the validity of the instrument, must bear the burden of proof, and will have their opportunity on remand.

      . Following the mandate of the Civil Code Article 10, we use Honduras law.

      . Said certifications have been authenticated by the American Consul pursuant to La.R.S. 35:551 et seq.