text:
    GENERAL ELECTRIC CREDIT CORPORATION v. Gwendolyn COLEMAN and Linda C. Carrell.
    No. 14437.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Robin W. Poirier, Baton Rouge, for plaintiff/appellee.
    J. Arthur Smith, III, Baton Rouge, for defendant/appellant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit on a promissory note. From a judgment in favor of plaintiff, defendant has appealed.

The note in question was executed in connection with a credit sale. On November 29, 1979, suit was filed by plaintiff, General Electric Credit Corporation (GECC), against the defendant, Gwendolyn Coleman, in the amount of $250.56, the unpaid balance, plus interest and attorney fees. During the spring of 1980, verbal negotiations were conducted between counsel for both parties. In a letter dated July 7, 1980, addressed to counsel for plaintiff, defendant proposed that the debt be paid by her to a liquidated total of $309.55, in 12 monthly installments of $25.00 each and a final installment of $9.55. The first installment was due July 15,1980. It was further proposed that when all installments had been paid, plaintiff would dismiss the suit.

Defendant tendered her check for $25.00 on July 15. The check was endorsed and deposited by plaintiff’s counsel, but returned by the bank because of insufficient funds. On August 7, plaintiff’s attorney wrote to defense counsel informing him of the NSF check and requested that judgment be stipulated to. This request was refused. Around October 13 plaintiff’s attorney received a $25.00 check from a Family Debt Counselors on behalf of defendant. This check was endorsed, deposited, and the funds disbursed to GECC.

Prior to this suit going to trial, defendant filed the peremptory exception of res judi-cata, contending that there had been a valid settlement and compromise entered into which barred judgment. The exception was tried at the same time as the merits.

The trial court denied the exception and rendered judgment for $250.56, together with legal interest and attorney’s fees, subject to a credit of $25.00.

In appealing defendant-appellant has assigned four specifications of error, but these resolve into only two issues: (1) whether there was a valid settlement and compromise entered into, and (2) whether the trial court was correct in assessing attorney fees when neither the promissory note nor the credit sales contract were introduced into evidence and there is no applicable statute authorizing attorney’s fees.

ISSUE NO. 1

Defendant basically argues that the acceptance of the checks on July 15 and October 13 by plaintiff’s counsel amounted to an acceptance of her letter proposal of August 7.

The general rule in Louisiana is that an attorney cannot sign a binding settlement agreement for and on behalf of his client without written authorization. See Singleton v. Bunge Corporation, 364 So.2d 1321 (La.App. 4th Cir. 1978) and the cases cited therein. The record is clear that no authorization existed for plaintiff’s counsel to enter into any settlement agreement. This factor alone is sufficient to dispose of this issue, but we feel constrained to state that even if all of the conditions for a valid compromise and settlement had been met in perfecting such, we still find that the trial judge was not in error in denying the exception.

Conceding for the sake of argument that plaintiff’s attorney had the authority to enter into a settlement, and the formal requirements had been met, we find that the attempted payment with a NSF check on July 15 is sufficient to void the agreement. Smith Construction Company, Inc. v. Brechtel, 51 So.2d 643 (La.App. Orl. Cir. 1951). The acceptance of the check on October 13 is of no moment in light of the intervening letter of August 7 informing defense counsel of the NSF check and the possibility of a stipulated judgment. This certainly expressed the intention not to accept any settlement offers.

ISSUE NO. 2

Though the promissory note sued upon was not filed into evidence, an affidavit attesting to the advertisement of the promissory note being lost was introduced into evidence. However, the credit sales agreement which did provide for attorney fees was not introduced nor was any testimony as to the amount of attorney fees offered. The credit sales agreement was attached to the petition, but this alone is insufficient. Absent any evidence of an agreement as to attorney fees or any statutory authority, the trial judge was in error in awarding same.

Therefore, for the above and foregoing reasons the judgment of the trial court is amended to award plaintiff the sum of $250.56 together with legal interest, subject to a credit of $25.00, and as amended is affirmed. All costs in this and the trial court are assessed to defendant-appellant.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Huey P. COOPER v. Gerald BARNES, et al.
    No. 14438.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      John W. Anthony, Talley, Anthony, Hughes & Knight, Bogalusa, for plaintiff.
    Michael J. Paduda, Jr., of Gallaspy & Paduda, Bogalusa, for Aetna Ins. Co.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Defendant, Aetna Insurance Company, was granted a motion for summary judgment on the finding that uninsured motorist coverage had been waived. Plaintiff appealed.

The issue is whether a written rejection of uninsured motorist coverage, under LSA-R.S. 22:1406 D(1)(a) is effective if it is signed after the policy is dated, issued and delivered.

We affirm.

Plaintiff, a policeman, was injured in a wreck with an underinsured driver while a passenger in a police car. Aetna, the automobile liability insurer of the police car, to support its motion for summary judgment introduced into evidence a copy of its policy effective May 28, 1978, and a waiver of uninsured motorist coverage signed on May 30, 1978. The accident occurred approximately seven months later.

Plaintiff’s claim that a rejection of uninsured motorist coverage must be made on or before the issuance of the policy is based on the fact that prior to 1977, a rejection or waiver had to be physically attached to the insurance policy. Thus, if an insured later rejected coverage, a new policy would have to be issued.

Act 438 of 1977 amended LSA-R.S. 22:1406 (D)(1)(a) to provide that a rejection or selection of lower limits must be in writing and that:

“(l)(a) * * * * Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued or delivered, irrespective of whether physically attached thereto.”

In A. I. U. Ins. Co. v. Roberts, 404 So.2d 948 (La.1981) after the policy was issued, the plaintiff verbally first rejected and then later selected limits of uninsured motorist coverage lower than statutorily provided, all prior to the 1977 amendment. After an accident, plaintiff claimed that she was entitled to the greater statutory limits because she had not consented to lower limits in writing. The Supreme Court held that because the selection of lower limits varied from the coverage provided by statute, it had to be in writing and attached to the policy. The facts and result indicate that prior to the 1977 amendment, a modification of uninsured motorist coverage after issuance would be possible only if LSA-R.S. 22:628 were followed.

In International Ins. Co. v. Masur, 404 So.2d 1313 (La.App. 2nd Cir. 1981), the policy provided uninsured motorist coverage lower than liability limits. The written selection of the lower limits was not made until after an accident. The Second Circuit held that after the 1977 amendment, uninsured motorist coverage could only be modified as provided by LSA-R.S. 22:1406 D(1)(a). A modification in proper form would not be applied retroactively, to the detriment of third party beneficiaries whose cause of action arose prior to the fact of modification.

While the statute is not entirely clear, the term “initially rejects or selects lower limits” in the amendment seems to refer to the rejection or selection of lower limits prior to the rewriting of the policy, because of renewal. The written rejection or selection of lower limits does not have to be physically attached to the policy upon each renewal.

No premiums or limits for uninsured motorist coverage were established when the policy was issued evidently in anticipation of the later rejection in writing. It is clear that the policy could have been can-celled and rewritten at the time the written rejection was received. It is possible that an endorsement of the policy could have been utilized. No injured party had accrued any rights prior to the written rejection. We find that under these circumstances the written rejection attached to the policy satisfied the requirements of LSA-R.S. 22:1406 (D)(1)(a) as it read in-1978.

For these reasons, the judgment is affirmed at appellant’s cost.

AFFIRMED.

      . LSA-R.S. 22:1406 D(1)(a):
      “D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
      (l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.”

      . LSA-R.S. 22:628:
      “No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance. This Section shall not apply to contracts as provided in Part XV of this Chapter.
      The provisions of this Section shall apply where a policy or other written evidence of insurance is coupled by specific reference with another policy or written evidence of insurance in existence as of the effective date hereof or issued thereafter.”


author: ELLIS, Judge:

text:
    Larry W. BOYD v. FOURCHON, INC., et al.
    No. 14439.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Joseph Waitz, Houma, for plaintiff-appellant.
    Francis Dugas, Thibodaux, for defendant-appellee.
    Charles LeBlanc, Thibodaux, for interve-nor-appellee.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

We pretermit discussion of the merits of this case because, the court, sua sponte, must dismiss the appeal herein as untimely.

Final judgment dismissing plaintiff’s case as to Fourchon, Inc. was signed on October 22, 1980. New trial was timely applied for by plaintiff, which was denied on November 10, 1980. The denial, with all counsel present, is reflected by a minute entry of that date. Neither plaintiff nor Fourchon had requested notice of the rendition of the judgment.

On December 23, 1980, a judgment denying the new trial was signed and notice thereof sent on the same day. Plaintiff’s motion for appeal was signed on January 14, 1981.

The following provisions of the Code of Civil Procedure are applicable:

“Art. 2087. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
“(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
“(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or “(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
“When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.”
“Art. 1914. When a case has been taken under advisement by the court for the purpose of deciding whether an interlocutory order or judgment should be rendered, the clerk shall make an entry in the minutes of the court of any such interlocutory order or judgment rendered thereafter.
“If a written request for notice of the rendition of the interlocutory order or judgment in such a case has been filed, the clerk shall mail notice thereof to the party requesting it; and the latter shall have ten days from the date of the mailing of the notice to take any action or file any pleadings he deems necessary, except as provided' in the next paragraph.
“If the interlocutory order or judgment is one refusing to grant a new trial, the delay for appealing commences to run only from the date of the mailing of such notice, as provided in Articles 2087 and 2123.
“The provisions of this article do not apply to an interlocutory injunctive order or judgment.”

Under the above provisions, the judgment denying a new trial need not be written or signed. A minute entry is sufficient. No party is entitled to a notice of the judgment unless he has requested it. Cox v. Southern Colonial Inv., Inc., 393 So.2d 146 (La.App. 1st Cir. 1980). The signing of the judgment on December 23, 1980, was therefore superfluous, and the appellate delays began to run on November 11, 1980, the day after the new trial was denied in open court.

Under Article 2087, plaintiff had 60 days to take his appeal. Counting from November 11, 1980, the sixtieth day was January 9, 1981. Plaintiff’s motion for appeal, which was filed and granted on January 14, 1981, was therefore too late, and this court is without jurisdiction to entertain the appeal.

The appeal herein is therefore dismissed, at plaintiff’s cost.

APPEAL DISMISSED.


text:
    Tina M. SABELLA v. BATON ROUGE GENERAL HOSPITAL.
    No. 14441.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      William H. Cooper, Jr., Baton Rouge, for plaintiff-appellant, Tina M. Sabella.
    George K. Anding, Jr., Baton Rouge, for defendant-appellee, Baton Rouge General Hospital.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from an adverse jury verdict in a tort suit for injuries sustained in a fall at a hospital.

The issue is the correctness of the trial judge’s refusal to submit a jury instruction concerning res ipsa loquitur.

We reverse and render.

Due to plaintiff’s physical incapacities, overweight and bilateral amputation above the knees, she was to receive abdominal x-rays while lying on her side on a stretcher. The x-ray table was raised to a vertical position to form the background. After the stretcher was pushed against the x-ray table, its wheels were allegedly locked in place to prevent rolling. Plaintiff was placed on the stretcher with her abdomen touching the x7ray table, one arm folded under her head and the other arm in the air.

After two x-ray technicians moved behind the protective screen, one of the technicians observed plaintiff’s arm shift toward the x-ray table. The opposite side of the stretcher “flipped up” and plaintiff fell to the floor.

Employees of the defendant who examined and tested the stretcher after the fall found that the wheels were still locked and that when locked, the stretcher would move up to approximately six inches. Testing of the stretcher also showed that a grown man in the same position as plaintiff could not get the stretcher to flip by pushing against the x-ray table.

The doctrine of res ipsa applies when: the accident would not normally occur in the absence of negligence, there exists an absence of direct evidence to explain the activities leading to the injury, and the accident or injury was caused by an agency or instrumentality within the actual or constructive control of the defendant. Ewen v. Baton Rouge General Hospital, 378 So.2d 172 (La.App. 1st Cir. 1979), writ denied 385 So.2d 268. The determination of whether res ipsa applies to a case is made at the end of a trial. Alexander v. St. Paul Fire & Marine Insurance Co., 312 So.2d 139 (La.App. 1st Cir. 1975), writ denied 313 So.2d 846.

Although defendant contends that the accident could have been caused by plaintiff’s movement, the tests by defendant’s employees make this result highly unlikely.

The technicians present had never seen such an accident occur. The one who saw this accident testified that he could not explain how the accident occurred. We find that there was no direct evidence indicating how the stretcher flipped under the plaintiff’s weight.

The plaintiff was on the stretcher at the time of the accident; we find that it was an instrumentality within the defendant’s control. The defendant’s employees were the only parties who had access to the locking of the stretcher wheels. Plaintiff merely lay on the stretcher and acted as instructed by the technicians.

Since the conditions above were met, the trial judge erred in not instructing the jury on res ipsa. When a trial court fails to give special jury instructions which are warranted and when a first hand view of witnesses is not essential to a fair result, the appellate court will decide the case on the record. Hebert v. Gulf States Utilities, 395 So.2d 832 (La.App. 1st Cir. 1981).

The application of res ipsa does not dispense with the necessity that plaintiff prove negligence, but is simply a step in the process of such proof. Frantz v. Morrison Home Center, Inc., 388 So.2d 106 (La.App. 1st Cir. 1980).

A hospital must exercise the care of a patient that his condition requires. This duty extends to protecting a patient from dangers which may result from plaintiff’s mental and physical incapacities and from external circumstances peculiarly within the hospital’s control. Ray v. Ameri-Care Hospital, 400 So.2d 1127 (La.App. 1st Cir. 1981). However, no one is required to guard against or take measures to avert that which a reasonable person, under the circumstances would not anticipate as likely to happen. Goodeaux v. Martin Hospital, Inc., 333 So.2d 717 (La.App. 2nd Cir. 1976), writ denied 338 So.2d 295 (La.1976).

Defendant offered proof that the technicians had complied with the normal hospital policy while x-raying the plaintiff. One of the technicians who had worked in hospitals across the country testified that the method would not have been different in those hospitals. He also stated that the method used offered more support for the plaintiff than other available methods.

The evidence as a whole shows that the defendant’s negligence was the most likely cause of plaintiff’s- accident. The plaintiff was on the stretcher under the technicians’ direction in a position directed by them. The flipping over simply does not occur when proper care is taken. We therefore reverse.

Plaintiff, who is approximately 70 years of age, sustained a fracture of the pelvis and of the femur. Due to a liver condition, the quantity and kinds of pain medicine that could be given were somewhat limited. Plaintiff suffered a lot of pain as a result. She is no longer so active as she once was and can sit up for only short periods of time. We feel that $20,-000.00 is an adequate sum for her injuries.

There was no proof of any special damages.

For these reasons, the judgment of the trial court is reversed. It is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Tina M. Sabella, and against defendant, Baton Rouge General Hospital, in the amount of $20,000.00 with interest at the legal rate from the date of demand until paid.

Costs of this appeal are to be borne by defendant.

REVERSED AND RENDERED.


text:
    In re Betty Jeanie FAUST.
    No. 14442.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Kenneth L. Ross, Hammond, for Betty Fay Grear Pierson Gainey and William Eugene Gainey.
    Tom Foley and Brian D. Leonard, Southeast Louisiana Legal Services Corp., Hammond, for Monel Faust.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

This is an adoption petition, in which Betty Fay Grear Pierson Gainey and her husband, William Eugene Gainey, are seeking to adopt Betty Jeanie Faust, Mrs. Gai-ney’s illegitimate daughter. The father of the child is named on' her birth certificate as Monel Faust. After the petition was filed, Mr. Faust appeared through counsel and opposed the adoption, refusing to give his consent thereto.

At the hearing, Mrs. Gainey testified that the child was born in February 1976, and that she had named Mr. Faust as the father. She further testified that he had seen Betty Jeanie only once, when she was 15 months old, and had never attempted to support her or see her on any other occasions. Mrs. Gainey also testified that at the time of the conception of Betty Jeanie she was having sexual relations with another person as well as Mr. Faust, and that it was possible that her other friend was the father. She stated that Mr. Faust’s name was put on the birth certificate because she thought they were going to be married. At the time of the hearing, in January 1981, Mr. Faust had not seen the child for about three years, and had never given her any support.

After Mr. and Mrs. Gainey testified, Mr. Faust’s attorney moved for a continuance so that Mr. Faust could appear before the court to testify. At the time of the hearing Mr. Faust was in Southeast Louisiana Hospital in Mandeville, Louisiana, undergoing treatment for alcohol abuse. The court refused the continuance, saying:

“All right, the Court will take judicial notice that Mandeville is not an institution where people are incarcerated involuntarily. They — Mr. Faust could have been — could walk off any time that he saw fit. So I’m going to deny the motion for continuance on that ground, as well as the ground that even if he should testify to the matters as set forth in the notes of the attorney, that, in my opinion, his consent is not required.”

The judge then granted a final decree of adoption, from which judgment Mr. Faust has appealed. In this court, he complains of the failure to grant the continuance, and of the granting of the adoption without the consent of the natural father.

Because we find that the trial judge abused his discretion in refusing to continue the matter or leave it open for the testimony of the natural father, we reverse and remand.

The record does not tell us what the reasons for Mr. Faust’s opposition to the adoption may have been, and no pleadings have been filed on his behalf. The record does tell ús that he was in Southeast Louisiana Hospital on the day of the hearing, and that he was represented by counsel who had never spoken with him. The trial judge’s supposition that Mr. Faust could have been present at the hearing is not supported by the record. Regardless of the merits of his case, we think that Mr. Faust should have been given the opportunity to appear and testify on his own behalf.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court with instructions to hear the testimony and other evidence which might be offered by Mr. Faust and for further proceedings according to law. All costs of this appeal shall be paid by Mr. and Mrs. Gainey.

REVERSED AND REMANDED.


text:
    In re David SHAVOR Applying for the Adoption of Desi Ray Pierre Zeringue, Jr.
    No. 14446.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    KnobJoch & Knobloch by F. Smith Knob-loch, Thibodaux, for David M. Shavor, ap-pellee.
    Bourgeois & Bourgeois by John T. Bourgeois, Thibodaux, for Desi Ray Pierre Ze-ringue, Jr., appellant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

This appeal is from a final decree of adoption of a child under the age of seventeen.

David Shavor, the second husband of the child’s legitimate mother, petitioned to adopt his wife’s six year old son, bom during her previous marriage to appellant, Desi Ray Zeringue. Prior to the filing of the petition, Zeringue had signed a notarial instrument consenting to the adoption and waiving his right to be made a party to the proceeding.

Zeringue received notice of the‘adoption hearing through a letter sent to him by the Department of Health and Human Resources (D.H.H.R.) pursuant to LSA-R.S. 9:427. Although the letter was dated two days earlier, Zeringue allegedly received it on a Friday afternoon prior to the hearing set for the following Monday. He appeared at the hearing without counsel. While he was not sworn in as a witness, the trial judge stated that he did consider his voiced objections. The trial judge rendered a final adoption decree in Shavor’s favor.

Zeringue was granted a new trial. Before the date of the new trial, the judge sustained Shavor’s peremptory exception of no right of action because Zeringue was not a party to the adoption proceeding. Ze-ringue filed an appeal from the final decree of adoption and the dismissal on the peremptory exception. The motion for appeal was filed prior to the signing of the judgment on the exception. A petition for nullity of judgment is still pending in the trial court.

The issues before the court are the strict compliance with the adoption statutes, failure of the trial judge to receive Zeringue’s evidence as to the child’s best interest, compliance of the D.H.H.R. with LSA-R.S. 9:427 and sustaining of the peremptory exception.

We reverse and remand.

Zeringue argues that he is appealing the sustaining of a peremptory exception rather than the denial of a new trial. However, in the minute entry, we note that the new trial was granted subject to Shavor’s objections and was thereafter denied on the peremptory exception. We find that judicial efficiency is promoted by considering the action as the denial of a new trial.

Otherwise, the appeal would be filed prematurely since the granting of a motion for new trial suspends a prior judgment until a new judgment can be rendered and signed. Jordan v. Jordan, 277 So.2d 761 (La.App. 1st Cir. 1973).

The denial of a motion for a new trial is a nonappealable interlocutory judgment. Kidd v. Fortenberry, 384 So.2d 509 (La.App. 2nd Cir. 1980). Therefore, that issue is not before this court.

Much has been said about Zeringue’s consent being under LSA-R.S. 9:422:

“A single person eighteen years or older, or a married couple jointly, may petition to adopt a child. When one joint petitioner dies, proceedings may continue as though the survivor was a single original petitioner. If one of the spouses is the legitimate parent of the child to be adopted the other spouse may adopt the child with the written consent of the legitimate parent who need not join in the petition nor be served with a copy thereof. A judgment of adoption awarded to one spouse shall not alter the relationship of the child to the spouse who is the legitimate parent.”

The “written consent” in that statute refers to the consent of the spouse of the petitioner. While a married person ordinarily must file a joint petition along with his spouse by written consent, the spouse who is the legal parent of the child can avoid the necessity of being made a party.

The adoption procedure for minors under seventeen was extensively amended in 1979 to provide a method of private adoption by voluntary surrender similar to the voluntary surrender given in an agency adoption. However, there is no contention that the specific requirements of that statute as to consent were complied with.

Zeringue could consent to the adoption of his son by notarial act rather than by strict compliance with the prerequisites of LSA-R.S. 9:422.6. He made a valid oral revocation of that consent. Moreland v. Craft, 244 So.2d 37 (La.App. 3rd Cir. 1971), writ refused 258 La. 348, 246 So.2d 197 (1971).

However, a study of LSA-R.S. 9:429, 432 and 434 leads us to the conclusion that the withdrawal of consent given in a notarial instrument does not inexorably lead to a denial of the adoption. It is the best interest of the child that controls. Adoption of Latiolais, 384 So.2d 377 (La.1980). The record contains no evidence as to the best interests of the child. We have to reverse on that point.

Appellant contends that the report of the Department of Health and Human Resources is inadequate under LSA-R.S. 9:427. We agree. Furthermore, the Department’s use of the mails on the same day as the report to ask for appellant to come in their office seems a poor compliance with the statute’s requirement to make “every effort to locate the living parent.” These deficiencies should be corrected on the remand.

We believe too that the consideration of the child’s best interest may well be enhanced by the reception of appellant’s objections and reasons therefor.

Appellee contends that the advantages and disadvantages of adoption were adequately shown and that the trial judge’s decision was based on the child’s best interest. He partially distinguishes Adoption of Latiolais, supra and In Re Hinton, 390 So.2d 972 (La.App. 2nd Cir. 1980), writ refused 396 So.2d 927 (La.1981), on the basis that they were LSA-R.S. 9:422.1 adoptions where consent of the parent is not necessary. However, the requirement of determination of the child’s best interest should not be so restricted.

In light of the above errors, we reverse the final adoption decree. We elect to remand for a new hearing because of the sensitive and critical nature of the child’s situation. Costs are to be paid by appellee.

REVERSED AND REMANDED.

      . LSA-R.S. 9:427:
      The department shall study the proposed adoption and submit a confidential report of its findings to the judge. The findings shall include the conditions with respect to the availability of the child for adoption; the physical and mental condition of the child and other factors regarding the suitability of the child for adoption in petitioner’s home; the moral and financial fitness of the petitioner; the conditions of the proposed adoptive home with respect to health; adjustment, and other advantages or disadvantages to the child. If the child has not been legally surrendered or declared abandoned by a court of competent jurisdiction, the department shall make every effort to locate the living parent of the child to determine his attitude toward the proposed adoption.

      . LSA-R.S. 422.6:
      The formal act of surrender shall identify the parents or parent of the child by name, parish of domicile, age, and marital status; shall identify the child and the parish of birth of the child; shall indicate the name and address of the person or persons to whom the surrender is made, or the name and address of the representative of that person or persons; and shall recite: (1) the date of birth of the child to be surrendered and that the act is not signed earlier than the fifth day following that date; (2) that the parent or parents freely and voluntarily surrender custody of the child for the purpose of private placement and adoption; (3) that the parent or parents consent to the adoption; (4) that the parent or parents have been informed and understand that their rights as parents of the child are to be terminated, and (5) that notice and service of any pleading of any sort in any subsequent adoption proceeding is waived. Should a surrendering parent of the child be under the age of eighteen at the time of signing, the formal act shall also recite that fact and shall state that the surrendering parent under the age of eighteen is joined in signing the formal act of surrender by those individuals indicated in R.S. 9:422.3. Each necessary party must sign in the presence of a notary and two witnesses, although it is not necessary that they sign the same instrument.

      . LSA-R.S. 9:429:
      The judge, upon examining the confidential report and upon the parties being interrogated, may grant or refuse to grant an interlocutory decree during or after the hearing here-inabove provided. The clerk of court shall forward a certified copy of the decree to the department. The withdrawal of consent to the adoption of a child, once given in a notarial act by the parent or parents of the child, shall not bar an interlocutory decree of adoption, if the court considers the decree in the best interest of the child.
      LSA-R.S. 9:432:
      A.The child shall have lived with the petitioner for at least one year and at least six months shall have elapsed after the granting of an interlocutory decree before the petitioner may apply for a final decree of adoption. The same procedures as are prescribed in R.S. 9:428 and 9:429 for the interlocutory decree are to be followed, except that the petition for a decree of final adoption need not be served upon anyone except the department. A second confidential report must be presented the judge preceding the hearing on the final decree of adoption. The findings of this report shall be based upon the same consideration as prescribed in R.S. 9:427 for the report which precedes the interlocutory decree and shall disclose any changed conditions and all new pertinent information.
      B. The court, after hearing and after taking into consideration information from all sources concerning the adoption, may enter a final decree of adoption; or it may deny the adoption. The basic consideration for this decree and all others shall be the best interest of the child. The clerk of court shall forward a certified copy of this decree to the department. The withdrawal of consent by the legitimate parent or parents, by the mother or by the father who has acknowledged by notarial act as provided by Article 203 of the Civil Code, shall not bar a final decree of adoption.
      C. In cases brought under the provisions of R.S. 9:422.3, the child shall have lived with the petitioner for at least six months, after the granting of an interlocutory decree, before the petitioner may apply for a final decree of adoption.
      LSA-R.S. 9:434:
      When the department does not make recommendations against the adoption, and all other requirements for an interlocutory decree have been met, the court may render a final decree of adoption at the first hearing, without the necessity of entering an interlocutory decree, where:
      s)e ¡fc # sf: %

      (2) The spouse of the petitioner is the legitimate parent of the child.

      .There is no transcript of the adoption hearing.


text:
    Otis MATT, et al. v. Bill COX, et al.
    No. 14447.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Michael J. Samanie, Houma, for plaintiffs and appellees.
    Gary P. Kraus, Houma, for defendant and appellant Waterworks District No. 3.
    Dennis J. Gaubert, III, Thibodaux for defendants and appellee C & C Farms and Southern Farm Bureau Cas. Ins. Co.
    Thomas Wright, Houma, for defendant and appellee Hibernia Bank, and James and Dorothy Antill.
    Robert D. Morvant, Thibodaux, for defendant and appellee Roman Catholic Church of the Diocese of Houma-Thibo-daux.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

This is a suit for personal injuries by Otis Matt and Mary Esther Matt for damages suffered by Mrs. Matt when she stepped into an open water meter hole on May 9, 1979. This suit was filed on January 9, 1980. The original petition alleged that the water meter was located on property belonging to Bill Cox and others, and that it was within the custody, control and supervision of Waterworks District No. 3.

Subsequently, on May 5, 1980, plaintiffs amended their petition to name the Roman Catholic Church of the Diocese of Houma-Thibodaux as party defendant as the alleged owner of the property where the accident happened, and Bill Cox, et al. as lessees thereof.

On June 26, 1980, a third party demand was filed by Cox, et al. naming the Charles B. Gilbert Trust, Hibernia National Bank, Trustee, as a third party defendant. Thereafter, on August 6, 1980, Waterworks District No. 3 filed a third party demand, naming the Gilbert Trust, and others as third party defendants, alleging the trust to be the owner of the property where the accident happened, and demanding indemnification or contribution.

To the latter third party petition, Gilbert filed a peremptory exception of prescription, alleging that over one year had elapsed after the accident before the third party demand on it was made, and that over 90 days had elapsed following service of the original petition herein, on the Waterworks District.

After a hearing, the exception was sustained and the third party demand dismissed as to the Gilbert Trust. From the judgment of dismissal, Waterworks District No. 3 has appealed.

We reverse. “Prescription does not begin to run on claims for indemnification and/or contribution until the party seeking same is, itself, cast in judgment.” Blue Streak Enterprises v. Gulf Coast Marine, 370 So.2d 633 (La.App. 4th Cir. 1979); see Thomas v. W & W Clarklift, Inc., 375 So.2d 375 (La.1979). Therefore, prescription has not yet begun to run on the demand for indemnification made by Waterworks District No. 3 against the Gilbert Trust.

The judgment appealed from is therefore reversed and set aside, the exception of prescription is overruled, and the case remanded to the trial court for further proceedings in accordance with law. Costs of this appeal shall be paid by the Gilbert Trust, with all other costs to await final disposition hereof on its merits.

REVERSED AND REMANDED.


author: LOTTINGER, Judge.

text:
    Linda Trahan WHIPPLE v. Keith M. WHIPPLE.
    No. 14455.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Stephen M. LaRussa, Houma, for plaintiff and appellee.
    Ernest A. Kelly, Jules Boquet, Houma, for defendant and appellant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit on two promissory notes, brought by Linda Trahan Whipple against Keith M. Whipple. Mr. Whipple then filed a reconventional demand against plaintiff. Plaintiff filed a dilatory exception of vagueness to the reconventional demand, which was maintained, and defendant was ordered to amend his reconventional demand on or before January 9, 1981, or have the demand dismissed. No amendment was filed by Mr. Whipple, and, on January 21, 1981, plaintiff moved for and obtained an ex parte order dismissing the reconventional demand without prejudice. From the judgment of dismissal, defendant has appealed.

Plaintiff subsequently moved to dismiss the appeal, arguing that the judgment appealed from was interlocutory in nature and did not cause the defendant irreparable injury. This court denied the motion to dismiss the appeal, 398 So.2d 1296 (1981), holding that a judgment of dismissal without prejudice is an appealable judgment.

On appeal, defendant-appellant assigns the following specifications of error:

I. It was error for the trial court to dismiss defendant’s reconventional demand or, alternatively, not to sever the reconventional demand and order same to be tried in a separate proceeding.

II. The reconventional demand filed by defendant on November 5, 1980, was sufficient and the trial court erred in finding that same was insufficient.

For the sake of clarity and convenience, appellant’s assignments of error will be discussed in inverse order.

ASSIGNMENT OF ERROR NO. 2

Keith M. Whipple contends that the allegations of his reconventional demand were sufficiently precise to make the sustaining of the exception of vagueness erroneous. The trial court found that paragraphs 2, 4, 5, 6 and 7 of the reconventional demand were vague, general and indefinite.

As the Third Circuit stated in Washington v. Flenniken Construction Company, 188 So.2d 486, 489 (La.App. 3rd Cir. 1966):

“The purpose of the exception of vagueness is to place the defender on notice of the nature of the facts sought to be proved so as to enable him generally to prepare his defense, as well as additionally by a formal pleading to identify the cause of action so as to bar its future re-litigation after determination by the present suit.”

In other words, the exception must be denied if the petition fairly informs the defendant of the nature of the cause of action alleged and includes sufficient particulars to enable the defendant to prepare a defense against evidence admissible under the allegations. Washington v. Flenniken Construction Company, supra at 490.

Paragraph 2 of Keith M. Whipple’s recon-ventional demand alleges that the defendant in reeonvention held in her control certain moveable property belonging to the plaintiff in reeonvention, and refused to deliver same. This allegation does not state how the defendant in reeonvention obtained possession of the movable property, at what approximate time such possession was had, or when plaintiff in reeonvention demanded its return. There is also no indication of what types of moveable property are involved, i.e., whether the items are as small as a pea or large as an elephant. Nor is there any indication of what value could be fairly assigned to each item of movable property.

Paragraphs 3 and 4 allege that defendant in reeonvention purportedly bought a tract of land by way of a note assumption, but that plaintiff in reeonvention actually made the note payments for same. Yet paragraph 4 does not indicate whether the note was paid by way of installments or in a lump sum, and does not state the approximate date upon which final payment was made, allegedly by plaintiff in reeonvention, which purportedly allowed defendant in re-convention to extinguish her obligation under said note.

Paragraphs 5, 6 and 7 of the reconven-tional demand allege that plaintiff expended goods, money and services in making improvements on the tract of land referred to in Paragraphs 3 and 4. However, no approximate dates for such improvements are mentioned, nor are the types of services personally provided by plaintiff in recon-vention enumerated, nor are the nature of the repairs and alterations paid for by plaintiff in reeonvention enumerated.

We assume that plaintiff in recon-vention is attempting to allege that the purchase of the tract in question and the subsequent improvements thereon, all purportedly paid for by plaintiff in reconvention, inured to the benefit of the defendant in reeonvention either by her continued possession thereof or by a subsequent sale of the tract by defendant in reeonvention. But no such allegation can be found in the reconventional demand. Nor does Keith M. Whipple even allege that he expected to be repaid for his expenditures. Thus, the trial judge was eminently correct in maintaining the exception of vagueness, in that the re-conventional demand does not completely inform the defendant in reeonvention of the nature of the claim. Additionally, none of the allegations of the reconventional demand is made with enough particularity to permit defendant in reeonvention to prepare her defense against evidence admissible under such allegations.

Assignment of Error No. 2 is meritless.

ASSIGNMENT OF ERROR NO. 1

Keith M. Whipple is basically arguing that the trial court abused its discretion in dismissing his reconventional demand without prejudice. He claims as the basis for this contention that he will be unable to file suit for his claims in a separate proceeding because his claims will have by then prescribed.

It is well established that a trial judge may dismiss a plaintiff’s demand for his failure to amend his petition as ordered by the court, see Jenkins v. Hartford Accident and Indemnity Co., Inc., 356 So.2d 490 (La.App. 1st Cir. 1977) and cases cited therein. Such dismissal is within the discretion of the trial court, and is based upon the power of the court to enforce compliance with a lawful procedural order in connection with a dilatory exception. LSA-C.C.P. art. 933, Bogan v. Byrom, 151 So.2d 718 (La.App. 3rd Cir. 1963). As in the instant case, such dismissals should be made without prejudice, see Jenkins, supra and cases cited therein.

We are aware of the holding in Lawrence v. Williams, 330 So.2d 121, (La.App. 2nd Cir. 1976) writ denied 333 So.2d 247 (La.1976), that under certain circumstances a trial judge may abuse his discretion by entering a dismissal for failure to amend a petition within a stated time period, even when the dismissal is without prejudice. In Lawrence, plaintiff was ordered to amend his petition in connection with a dilatory exception of vagueness brought by three of a number of defendants. When the amendments were filed seven days late, the trial court subsequently granted the three defendants’ motion to dismiss without prejudice. The plaintiff’s claim as to those defendants would have prescribed had a separate suit been brought, since the initial suit dismissed without prejudice did not serve to interrupt prescription, so the plaintiff appealed the dismissal without prejudice. The Second Circuit reversed, holding that the dismissal without prejudice was an abuse of discretion, inasmuch as the delay was due to new counsel’s inability to obtain needed information from the files of prior counsel. Also found pertinent was the fact that the defendants did not move for dismissal until nine days after the amendments were filed; thus, the defendants were not prejudiced by the untimely filing. The Second Circuit found that the authority of the trial court had not been compromised, and held that the dismissal without prejudice was an abuse of discretion under all the circumstances.

However, in the instant case, plaintiff in reconvention was represented by the same counsel during all proceedings pertinent to this appeal. Plaintiff in reconvention offered no valid excuse for the tardy filing which might render a dismissal without prejudice an abuse of discretion. The only statement made 'by the appellant in this regard is that appellant did not wish to burden this court with the reasons for his tardiness. This court cannot possibly find an abuse of discretion by the trial court if there is not adequate reason given us which would justify appellant’s tardiness in filing an amended petition.

Plaintiff in reconvention does not on appeal give us the dates necessary for a determination of whether his claims would indeed prescribe in the interim between the original filing and a hypothetical second suit. But assuming such to be the case, since appellant offers no excuse for his tardiness, he can only blame himself if his claims have truly prescribed in the interim.

We find no abuse of discretion by the trial judge in dismissing the reconventional demand without prejudice. Appellant’s Assignment of Error No. 1 is without merit.

Therefore, for the above and foregoing reasons, the judgment of the trial court dismissing the reconventional demand of Keith M. Whipple is affirmed at plaintiff-in-reconvention-appellant’s costs.

AFFIRMED.


text:
    James Edward BAGENTS. v. Peggy Jean BAGENTS.
    No. 14459.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Michael V. Clegg and Sharon E. May, Baton Rouge, for plaintiff-appellee James Edward Bagents.
    Sumpter B. Davis, III, Roy Maughan, Lauren K. Covell, Baton Rouge, for defendant-appellant Peggy Jean Bagents.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Defendant-in-rule appealed from a judgment ordering the change of custody from her and from a judgment denying a change of custody back to her.

The sole issues are the propriety of those judgments.

We affirm.

Defendant on October 19, 1979, secured a judgment of divorce on grounds of adultery and the award of custody of the five year old daughter. Shortly thereafter plaintiff-in-rule married his co-respondent. In December, 1979, after discussing the matter with plaintiff-in-rule and allegedly receiving approval, began living with Wade Bourgeois, not yet divorced from his wife. This liaison continued until June 5, 1980. After an argument and fight because the child had been brought back late after a visitation, Bagents’ second wife filed criminal charges and Bagents filed for a change of custody. After a hearing the court ordered the custody changed to the father. The mother married Wade Bourgeois very shortly after the latter secured a divorce. She then filed a motion for a new trial and also a motion to change the custody back to her. The trial court denied both.

The trial court ordered the change of custody because of the open concubinage between the former Mrs. Bagents and Wade Bourgeois and her attitude toward this concubinage.

The former Mrs. Bagents freely admitted living with Wade Bourgeois and asserted she saw nothing wrong with the arrangement since they planned to be married when Mr. Bourgeois secured his divorce. She and Mr. Bourgeois attempted to lessen any deleterious effect upon the child by not undressing before the child. She asserted that the child had more family life with Wade Bourgeois than she had had with her father.

The deprivation of custody of a minor child should not be utilized as punishment for a mother who occasionally transgresses the moral code. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). However, when a mother openly, repeatedly and flagrantly violates that code her conduct constitutes a militant factor against allowing her to retain custody. Beck v. Beck, 341 So.2d 580 (2d Cir. La.App.1977).

Appellant cites Stephenson v. Stephenson, 404 So.2d 963 (La.1981) in support of her appeal. Therein the Supreme Court reversed this court and reinstated the trial court’s award to the mother, citing the mother’s good care of the child, her comparative discretion in her adultery and the trial court’s finding that the award to the mother was in the child’s interest. However, we find the present case more similar to Bride v. Thom, 378 So.2d 152 (1st Cir. La.App. 1979), in which the adulterous mother was deprived of the custody by the trial court; this court affirmed.

The trial court made a finding that it was in the interest of the child that the custody be given to the father. The award should not be lightly altered. Stephenson v. Stephenson, supra.

While we are quite aware that Mr. Bagents does not present a much better alternative, he having committed adultery and having admittedly previously used drugs and being at least partially motivated to seek the change of custody by the fight, nevertheless, we find no clear showing of an abuse of discretion and so approve the trial court’s decision.

For these reasons, the judgment is affirmed. All costs are assessed to the appellant.

AFFIRMED.


author: COLE, Judge.

text:
    Jane BAYHI v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, OFFICE OF HEALTH SERVICES.
    No. 14463.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Jane S. Bayhi, pro se.

      Frank H. Perez and William C. Shockey, Staff Attys., Dept, of Health and Human Resources, George Hamner, Director, Dept. of State Civ. Service, Baton Rouge, for appellee.
    Before COVINGTON, CHIASSON and COLE, JJ.
   COLE, Judge.

The facts surrounding this litigation are as follows. Appellant Jane Bayhi was employed as a Nurse III at the Jefferson Parish Health Unit. On Friday, March 9,1979, she received a letter signed by J. T. Ham-rick, Acting Assistant Secretary of the Office of Health Services and Environmental Quality, (a part of the Department of Health and Human Resources), informing her she was being transferred to a Central Cost Center. The transfer was to be effective the following Monday, March 12, 1979, when Ms. Bayhi was to report to the Chief Nurse for her specific assignment. She later learned the assignment was at a Family Planning Program in New Orleans.

Appellant, distressed by this sudden transfer (or “change in duty station” as it is called in the civil service rules) attempted to contact various superiors to find out why she was being moved, but was unable to reach anyone. On April 4, 1979, she delivered her letter of appeal to the director of the Civil Service Commission (herein referred to as the Commission), citing seven reasons why she was entitled to a hearing on her transfer.

The appointing authority filed a motion for summary disposition of the matter under civil service rule 13.14(a) 1 and 2, alleging that since a change in duty station was specifically authorized by rule 8.16(c), appellant had no legal right to appeal the matter.

A hearing on the summary disposition was held November 13,1979, and an opinion rendered by the Commission on January 16, 1981. The Commission found merit with only one of appellant’s arguments. Therefore, the motion for summary disposition was granted as to six of the issues raised and denied as to one. The issue having merit was the charge that her change of duty station had been a discriminatory action on the part of the appointing authority. Ms. Bayhi then filed her appeal to this court, complaining she had been denied the opportunity to be heard on the other six issues.

After reviewing the record we agree with the Commission that the six issues do not give appellant a legal right to appeal, therefore we affirm the decision of the Commission.

The opinion of the Commission discussed some, but not all, of the arguments raised by Ms. Bayhi in her letter of appeal. First, she claimed the change of duty station was a breach of contract in that upon her initial job application, and with every other subsequent application for a higher position, she specified she would work only in Jefferson Parish. The Commission concluded, and we agree, a job application is not a binding contract because at the time it is made there is no agreement between the parties. It is merely a preliminary step in the forming of the contract. The purpose of the question asking where the applicant desires to work is simply to inform the employer of the potential employee’s preference. There is no guarantee the employee will be assigned to that parish or will work permanently in that parish.

As the Commission pointed out, civil service rule 8.16(c) specifically allows the appointing authority to transfer an employee from one geographical location to another. The rule reads as follows:

“An appointing authority may change the duty station of a permanent employee from one geographical area to another and any such change shall be reported to the Director; and may change the duty station of a provisional or probationary employee from one geographical area to another with the prior approval of the Director.”

The Commission noted this right to transfer employees is necessary so the appointing authority has management flexibility. We note even in private employment there is no guarantee an employee will not be transferred to another geographical location.

Appellant claimed further the change of duty station was a demotion and a punitive action without cause. She stated her new job is in a less desirable location, is much further from her home, and requires longer hours. “Demotion” is defined by rule 1.11 as being a change of an employee from a position of one class to a position of another class for which a lower minimum rate of pay is prescribed. Ms. Bayhi did not allege she has been changed from her class of Nurse III or that the gross wage is any less. While we can sympathize with the inconvenience caused by the change in duty station, we can grant her no relief because the appointing authority has acted within its power.

We will briefly discuss the other issues raised by appellant. We find no merit in her argument she is entitled to an appeal because the new position is in a federally funded program and is therefore subject to the possibility of withdrawal of funds and the termination of the program. This complaint is highly speculative. Further, we cannot reasonably say all civil service employees are entitled to work only in those jobs in which no federal funds are involved. The possibility of termination of funding is one many employees must face and is not a grounds for appeal.

Appellant further claims the transfer was an insult to her professional ability. The essence of this complaint is she was displeased with the way the transfer was handled. Again, while we can sympathize with her position, this alone does not form the basis of an appeal. She did not point out any rules that had been violated by this method of transfer and the Commission cannot grant hearings simply to allow an employee to complain about the tactless manner in which the transfer was handled.

Appellant’s other complaints are closely related to her charge that her transfer was discriminatory and based on nonmerit reasons. Therefore, we need not discuss them because they will undoubtedly be examined at the hearing on that issue.

For the foregoing reasons, the decision of the Commission is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . Rule 13.14 reads as follows:
      “(a) At any time after the docketing of an appeal a written request may be filed by any interested party for summary disposition thereof on any of the following grounds:
      1. That the Commission lacks jurisdiction of the subject matter, or of the person against whom relief is sought.
      2. That the appellant has no legal right to appeal.”

      . Appellant’s brief is somewhat confusing in that she raised several broad issues such as whether or not the Civil Service Commission has failed to accomplish a merit system of civil service. Yet she did not discuss these issues in brief but instead discussed the six issues she raised originally in her letter of appeal to the Commission. We too have addressed the issues raised in her letter because they are the gist of her appeal. The “issues presented on appeal” in her brief are not issues that can be decided from this record. We attribute this confusion to the fact that appellant is appearing in proper person.


author: COVINGTON, Judge.

text:
    Howard JOHNSON v. Huey P. ORTEGO, et al.
    No. 14467.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Christopher B. Fruge, Ville Platte, for plaintiff and appellant.
    Donald T. W. Phelps, Baton Rouge, for defendants and appellees.
    Before COVINGTON, CHIASSON and COLE, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment on a motion for summary judgment in favor of defendant Excalibur Insurance Company granting its motion for summary judgment and dismissing plaintiff’s claim against Excalibur. We affirm.

It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits (if any), show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Norman v. Sorrel, 391 So.2d 496 (La.App. 3 Cir. 1980), writ denied, 396 So.2d 1325 (La.1981). Only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law on the facts before the court can summary judgment be granted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976).

In the instant case, the undisputed facts presented show that Excalibur issued an insurance policy to McNair Transport for the period from May 8, 1975 to May 8, 1978 (during which period the accident giving rise to the present lawsuit occurred, on March 16, 1977). The copy of the policy in the record shows that the policy afforded liability coverage to McNair Transport. McNair Transport rejected uninsured motorist protection. When the policy was issued in 1975, LSA-R.S. 22:1406D(1) read in part:

“. .. provided, however, that the coverage required [under R.S. 22:1406D(1)] shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.” (Act 154 of 1974).

In the instant case, it is undisputed that attached to the McNair Transport policy is a rejection of uninsured motorist coverage, as an endorsement effective May 8, 1975, signed by Alex Durbin in his capacity as Vice President of Administration with McNair Transport, Inc.

In considering this endorsement, the trial judge stated:

“The endorsement rejecting the uninsured motorist coverage is a part of the policy and appears to be a considered waiver of uninsured motorist coverage, under-insured motorist coverage and the option to select lower limits. There is no question of their knowledge and affirmative action regarding the options. The cases cited by plaintiff in opposition to the motion for summary judgment appear to be inapplicable to our particular situation in this case.”

Since we find no dispute as to the material facts, and since we are of the opinion that Excalibur is entitled to judgment as a matter of law, we affirm the judgment of the trial court. Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . By way of a supplemental petition filed by plaintiff, Excalibur Insurance Company was added as a defendant, with plaintiff alleging that Excalibur issued an insurance policy to McNair Transport, Inc., under the terms of which plaintiff was entitled to uninsured motorist coverage.

      . There is a strong public policy behind the enactment of the uninsured motorist statute. Unless rejected, the provisions of the statute place this protection in any policy of liability insurance issued in this state.

      . It was not until the enactment of Act 438 of 1977 that LSA-R.S. 22:1406D(1) specified the manner in which the insured was to reject uninsured motorist coverage in order for such rejection to be effective. See A.I.U. Insurance Company v. Roberts, 404 So.2d 948 (La.1981).


text:
    Mr. and Mrs. Ray REECH v. The OPTIMIST CLUB OF DOWNTOWN BATON ROUGE, LOUISIANA, INC., et al.
    No. 14471.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Writ Denied Feb. 19, 1982.
    Guy A. Módica, Baton Rouge, for plaintiffs-appellants.
    Kenneth E. Barnette, Baton Rouge, for defendants-appellees.
    Before COVINGTON, CHIASSON and COLE, JJ.
   COVINGTON, Judge.

This is a devolutive appeal from a judgment of the district court dismissing the plaintiffs’ suit for damages against the defendants, The Optimist Club of Downtown Baton Rouge, Louisiana, Inc., and the club’s liability insurer, St. Paul Fire and Marine Insurance Company. The suit was instituted for personal injuries allegedly sustained by Mrs. Ray Reech on the evening of October 28, 1978, while she was accompanying her three children through a “haunted house” which was sponsored and operated as a Halloween fund-raising project by the Optimist Club. The “house” was arranged with four rooms decorated with Halloween paraphernalia, designed to frighten or startle the patrons as they passed through each room. The house was primarily lighted with black lights and strobe lights to illuminate the passage way to accent the masks and costumes worn by the “actors.” There were also continuous Halloween-type sound effects, such as screams and wolf howls.

The defendants generally denied liability for the injuries and damages sustained; and also pled the affirmative defenses of contributory negligence and/or assumption of risk so as to bar recovery by the plaintiffs.

Mrs. Reech described the incident which resulted in her injuries as follows:

“Q. And this haunted house essentially was not — there is no material difference between this one as far as you know than one that you had been in wherever it was located?
A. Except for that place where you couldn’t see because of the darkness.
Q. And you did expect, although you didn’t expect to be frightened, well, I wouldn’t think an adult would expect to be frightened but you would expect yourself and all the other people be startled from time to time when you hear sound effects or lights or some animation by the people in there. That’s when you’d expect to be startled; would you not?
A. Yes. sir.
And that s what happened; didn’t it? O’
Yes, sir. <!
And obviously you didn’t expect or didn’t intend or didn’t want to get your nose broken but you did expect to have people startled and you expected or anticipated or thought there might be some jostling and pushing around; would you not? O*
Yes, sir. <1
You expected the people in there in front of you or behind you to be startled and jump and perhaps push you or touch you or step on your foot or whatever? O’
On my feet, yes. <1
And the only thing different about this instance from what you anticipated when you went in there was, you didn’t anticipate getting your nose broken? O*
I didn’t anticipate being shoved into a wall.
Well, you didn’t anticipate getting your nose broken but you did anticipate being stepped on, pushed, elbowed and shoved while you were in there? .©
But not so violently. <$
That’s right but answer my question. You did anticipate all those things but you just didn’t anticipate having the result to be your nose getting broken? You anticipated all those things, did you not? O'
To a slight degree, yes. <1
And what’s your best recollection of the people that were involved in your little group were about how many? Q*
Ten to twelve people. <!
Okay. And the size of the group was no particular problem I take it? Q*
What do you mean? <!
Well, I mean, they weren’t being rowdy and the rooms weren’t overcrowded or anything of that nature, I take it? O’
A. Not that I remember.
Q. Do you recall whether or not they had any type of sound effects at all?
A. I can’t remember any music. I can remember the screaming and hollering, you know, from people. You could hear those that were in the front of you screaming and then you could [hear those] in the back of you screaming but I don’t know if there was any music.
Q. You don’t know whether they had any type of recorded sound effect whether it be music or not, whether it be goulds [sic] laughing or screeching or other weird Halloween type noises?
A. There were so many noises from— so much noise, different noises from the people, and from those that were dressed up that were masqueraded. I remember hearing those noises.
Q. Now, how far was it when you left that last room you were in into the hall where the incident occurred? How far did you go at that time as you recall before you felt yourself being shoved into the wall?
A. Not very far, a matter or maybe four or five feet.
Q. Had you made the turn at that point?
A. You had to have made the turn to get into the hall.
Q. You did anticipate — and the purpose for going there, if not for you, certainly for your children, was so they could enjoy the thrill, the excitement, the scaring procedure?
A. Right.
Q. And you knew that that was — basically, that’s the total and sole purpose of a haunted house anyway?
A. Yes, it’s part of Halloween.
Q. That’s right. And you know that when the children or the other people whether they be children or grown-ups or otherwise, that when these apparitions suddenly jump out at them, flashing lights and noises, that they will act in a manner that startles, shall we say, sudden movements, backwards, forwards, sideways or otherwise?
A. Yes.”

The plaintiffs claim that the Optimist Club was negligent in its design, construction and operation of the “haunted house” in failing to properly control the movement of patrons through the amusement area and in failing to maintain adequate lighting for safe movement of patrons. We find no merit to this contention. See Bonanno v. Continental Casualty Company, 285 So.2d 591 (La.App. 4 Cir. 1973).

The trial judge, in his oral reasons for judgment, made the following observations and conclusions:

“The testimony is that Optimist Club had members who were stationed at the door and the entrance into the haunted house to control the number of peoples who would enter into the haunted house at one time. Mr. Gremillion said that normally this group was controlled between numbers of fifteen and twenty. That there were attendants available in case there were unruly people who were getting ready to enter into the haunted house and the attendant would be available to go with that group to control it. As Mrs. Reech testified that she did not recall any unruly people in this particular group that she [was] involved with. According to the testimony of Mrs. Reech, Sharon Bordelon and April Reech were one, two, three in the group that went in and as they proceeded through the different halls and rooms of the haunted house, they came to the part where Mrs. Reech got injured. The testimony has been that the rooms in the haunted house were decorated with scenes for the purpose of scaring and startling the patrons, consisting of what would normally be called Halloween paraphernalia. Mr. Gremil-lion indicated that there was a sound track that was playing that had various sounds from a wolf cry to dogs barking to screams, all to promote the purpose of the haunted house which is to scare, startle, excite patrons who might enter into the haunted house. According to the testimony of April Reech, she indicated that she was getting ready to proceed down a hall when she was shoved and from that the court assumed that she bumped into Sharon who bumped into Mrs. Reech who struck her face on the side of the wall and fell to the floor. Mr. Gremillion testified in his exhibit, suggest that the instant it happened, in front of his station where he was an actor, in that exhibit, defendant exhibit number two[,] Mr. Gremillion pointed out the area where Mrs. Reech was injured. In fact he stated he was the one who came to her assistance and took her out the back door. Mrs. Reech and her children have testified that the area where the injury occurred was dark, pitch dark, using various synonyms to describe the light. The diagram, D-2, Mr. Gremillion presented to the court. The area where Mrs. Reech was injured was actually more or less in front of what I would consider a scare station which black lights were used to illuminate the various masks that were being worn. In this particular instance, Mr. Gremillion was wearing the ‘alien’ mask and he had control of a strobe light which he would turn on at various intervals for the purpose of startling individuals when they came into the room. Apparently, on this evening, someone was behind April and they were startled. They bumped Sharon who bumped Mrs. Reech. The court has had the opportunity to review the memorandums that were presented by the parties in this particular suit and feel that both have had no showing of any defects whatsoever in the haunted house. The court noted in the petition, paragraph four, it was alleged that someone in front of Mrs. Reech sud-denOy] and without warning stepped back and jumped into her, resulting in the injury. And that the accident sued upon, under paragraph five, was a fault of defendant in his failure to protect patrons from dangers of the haunted house and from other patrons on the premises. This court in the case of Bonanno versus Continental Casualty, 285 So.2d 591, Fourth Circuit, 1973, stated, obviously the purpose of a haunted house is to startle people, is to cause patrons to react in a bizarre, frightening and unpredictable way. • Of course, Mrs. Reech testified that she didn’t go there to be scared, she went there to assist her children. At the same time, she stated that she was startled and who wouldn’t be when objects, actors would jump out at you, that you wouldn’t perhaps be anticipating. I, in this particular case, realize that the premises that were available for Mrs. Reech to walk through that evening, the duty that’s owed by the Optimist Club in maintaining the premises are to be considered in connection with the purpose. The purpose obviously was the haunted house to affect people as I previously mentioned. There were no defects in the flooring, nothing fell that was out of the ordinary. From the evidence before the court, it really boils down to whether or not it was an unruly crowd, which honestly there wasn’t in the court’s opinion, or secondly, whether or not the area where Mrs. Reech was injured, whether or not there was an insufficient amount of light. One of the witnesses was asked whether or not the lights were as bright as those in the courtroom. Obviously they weren’t because all the effect of a particular scare station would be lost with bright lights like this. The court does not find where the Optimist Club and/or their insurer has committed any acts of negligence whatsoever in the manning of the haunted house and/or maintaining the scare stations and/or in constructions of the various halls and rooms including availability of lighting.”

We have reviewed the record carefully and find that it supports the factual determinations of the trial court. Moreover, as in Bonanno v. Continental Casualty Company, supra at 592, we hold that Mrs. Reech’s assumption of risk in going through this Halloween attraction bars her recovery. She necessarily assumed the risk of being startled, jostled and pushed about when she entered the “haunted house,” which was an ordinary risk of attending such attraction.

For the foregoing reasons, the judgment of the trial court is affirmed, at appellants’ costs.

AFFIRMED.


text:
    Keith L. DUMEZ v. HOUMA MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD, et al.
    No. 14476.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Keith M. Whipple, Houma, for plaintiff and appellant.
    Eddie N. Pullaro, Houma, for defendant and appellee City of Houma.
    Stanwood R. Duval, Jr., Houma, for defendant and appellees Houma Municipal Fire & Police Civil Service Bd.
    Charley J. Schrader, Jr., Houma, for defendant and appellee Thomas Abrams.
    Before COVINGTON, CHIASSON and COLE, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the District Court which upheld the decision of the Houma Municipal Fire & Police Civil Service Board, sustaining the dismissal of Keith L. Dumez from his employment in a permanent classified position of police officer by the police chief for the City of Hou-ma. He had been a permanent employee of the police department for about 8V2 years.

The record shows that on December 5, 1975, Dumez was dismissed by the police chief for discourtesy (use of disrespectful language) toward a superior officer. As a result of the dismissal, Dumez appealed to the Board, along with another police officer, Ernest Rhodes, who had also been discharged for a similar offense. At a hearing on February 25,1976, the Board upheld the dismissal of Dumez, but reduced the disciplinary action against Rhodes to a 90-day suspension without pay. Dumez then took an appeal to the District Court. Finding that the Board had considered matters beyond the scope of the charges and had prejudged the case prior to the hearing, the District Court reversed the Board’s decision and remanded the matter to the Board for reconsideration. Appeal was taken to this Court, which affirmed the lower court’s judgment, remanding the case. Dumez v. Houma Municipal Fire & Police Civil Service Board, 365 So.2d 603 (La.App. 1 Cir. 1978).

In response to an order of the district court, the Board held a second hearing on May 1, 1979, on the appeal of Mr. Dumez, which resulted in the Board upholding the removal of Officer Dumez from the service. In reaching this decision the Board made the following findings:

“1) The Board finds as fact that Keith Dumez told Lt. Clarence Vito ‘F_You’.
2) That Lt. Vito was superior in rank to Officer Keith Dumez.
3) That the utterance by Dumez if not disciplined would have a detrimental effect on the discipline and efficiency of the Police Department.
4) That the appointing authority acted in good faith and for cause in firing Officer Dumez.”

Dumez appealed this decision to the district court, contending:

“a) Said board and/or members thereof decided against petitioner prior to the hearing of evidence.
b) The discussions held by said board resulting in the affirming of the decision of the Chief of Police was held in closed session in violation of the Louisiana Civil Service Act and the Louisiana Open Meetings Law.
c) Said board refused to allow undersigned counsel to introduce evidence of conduct of other members of the Houma Police Department which was far more serious than that alleged to have been committed by Keith L. Du-mez and which resulted in penalties of far less severity than that meted out to Keith L. Dumez.
d) The Houma Municipal Fire and Police Civil Service Board has failed to accord to Keith L. Dumez Due Process of Law, both procedural and substantial and has failed to accord to Keith L. Dumez Equal Protection of The Law under both the Federal and State Constitutions.”

After considering the grounds for dismissal, the trial court sustained the ruling of the Board affirming the discharge of Dumez and dismissed appellant’s suit. We affirm.

The standard of appellate review in civil service cases is the same as that which exists in judicial review. We review both law and facts, but must give great weight to the factual conclusions of the trier of fact. Herbert v. Department of Police, 362 So.2d 1190 (La.App. 4 Cir. 1978).

Nevertheless, our scope of review is limited under LSA-R.S. 33:2501, which reads in part as follows:

“. . . The board shall, within ten days after the filing of the notice of appeal, make, certify, and file the complete transcript with the designated court, and that court shall thereupon proceed to hear and determine the appeal in a summary manner. This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds.”

In his first contention on appeal, Dumez claims that' the discussions held by the Board resulting in the affirming of the decision of the police chief were held in closed session in violation of the Louisiana Civil Service Act and the Louisiana Open Meetings Law. The record fails to disclose any closed sessions or clandestine meetings of the Board. All actions taken by the Board were pursuant to the Civil Service Act, LSA-R.S. 33:2500-2501. There is also no merit in appellant’s contention of violation of the Open Meetings Law, LSA-R.S. 42:1 et seq. In the case of Eastwold v. Garsaud, 387 So.2d 682 (La.App. 4 Cir. 1980), writ denied, 393 So.2d 746 (La.1980), the court refused to apply the open meetings laws retrospectively to hearings held prior to the effective date of the amending statute, LSA-R.S. 42:4.2, added by Act 681 of 1979. The effective date of the amending statute was September 7, 1979, and the instant hearing was held on May 1, 1979, prior to the effective date. We hold, as did Eastwold, that the Board was not covered by the open meetings, or sunshine, laws then in effect.

The appellant also complains that the Board refused to allow his counsel to introduce evidence of conduct of other members of the police department which was allegedly far more serious than the conduct of Dumez and which conduct was punished far less severely than the penalty imposed on Dumez. Counsel for appellant argues that at the hearing of the Board, he attempted to show an incident involving Myron McGlocklin (McLaughlin) who was suspended for arresting a king of a Mardi Gras parade in Houma during the official course of festivities for allegedly refusing to leave a rented dance hall at the appointed time, but that the Board refused to hear such evidence. Counsel for appellant further asserts that there were several other incidents which he intended to introduce as evidence which would show that Dumez was fired for conduct far less serious than the conduct of others, for which they were not fired, so that the firing of Dumez was discriminatory.

It is the appellant’s contention that the trial court was in error in finding good faith and cause in that had the Board had such additional evidence, to show that other police officers were not treated as severely as Dumez, it presumably would have found the Chief’s firing of Dumez not in good faith or not for cause.

The record does not support appellant’s contention that he was denied opportunity to introduce pertinent evidence of the conduct of other police officers. Although the Board at first considered such evidence irrelevant, the record reflects that it later reversed its ruling, and the matter was allowed to be opened on the cursing incidents of other police officers. The record shows that counsel for Dumez questioned McGlocklin about cursing and related incidents. Moreover, he was allowed to question Ernie Rhodes at length about being fired or disciplined for cursing. Further, he was allowed to question the Chief about the disciplining of Ernie Rhodes for cursing. In ruling on this question, the trial judge remarked:

“. . . [A]s far as I was concerned, you were free to present any evidence that you wished concerning cursing incidents by other officers or other disciplinary actions taken against these officers, so as far as I was concerned, you were given an opportunity by the Civil Service Board to present this and you didn’t pursue it any further than your questioning of Chief [Lora] Rhodes, McGlocklin, Ernie Rhodes ... as far as I was concerned, there was no effort made by The Civil Service Board or Mr. Duval to prevent you from presenting this evidence if you wished. And so, since you had the opportunity to do so, that as far as I was concerned, that was the end of the matter. In other words, I take the position that you make your record in The Civil Service Board, just like you make your record in the District Court in a case, and whatever record you make you’ve got to live with.”

The record reflects that counsel for Du-mez was not deprived of opportunity to introduce relevant and material evidence. We conclude, as did the trial judge, that Dumez was accorded a fair opportunity to present evidence of conduct or language by other members of the Houma Police Department.

We find nothing in the record indicating that the trial court erred in upholding the Board’s decision. No evidence was presented to show the Board did not reach its decision in good faith. Durr v. Natchitoches Municipal Fire and Police Civil Service Board, 392 So.2d 720 (La.App. 3 Cir. 1980); City of Kenner v. Wool, 320 So.2d 245 (La.App. 4 Cir. 1975).

We also find that the decision of the Board was made for cause under the provisions of law. In the Matter of Geiger, 337 So.2d 549 (La.App. 2 Cir. 1976); see also Broyles v. Baton Rouge Municipal Fire and Police Civil Service Board, 340 So.2d 349 (La.App. 1 Cir. 1976), writ refused, 341 So.2d 1121 (La.1977). The grounds for which the appointing authority may remove or discipline a tenured employee are set out in LSA-R.S. 33:2500. The pertinent part of that section of the Revised Statutes provides:

“A. The tenure of persons who have been regularly and permanently inducted into positions of the classified service shall be during good behavior. However, the appointing authority may remove any employee from the service, or take such disciplinary action as the circumstances warrant in the manner provided below for any one of the following reasons: ...
“(5) Conduct of a discourteous or wantonly offensive nature toward the public, any municipal officer or employee; and, any dishonest, disgraceful, or immoral conduct. ...”

The issue before this court under this contention is whether the determination of the Board was made for cause. As an intermediate appellate court, we look only to the evidence presented to the Board and we review such evidence in the light of the presumption that the Board found facts sufficient to afford a legal basis for its decision. Unless the record establishes that the Board acted arbitrarily or discriminato-rily so as to abuse its discretion, the Board’s decision, including as to the severity of the discipline, will not be overturned. McIntosh v. Monroe Municipal Fire and Police Civil Service Board, 389 So.2d 410 (La.App. 2 Cir. 1980), writ denied, 395 So.2d 1363 (La.1981).

“Cause”, as used in the civil service statute, was defined by the state Supreme Court in Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5, 9 (1962), as follows:

“Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Of course there must be a real and substantial relation between the conduct of the employee and the efficient operation of the public service; otherwise legal cause is not present, and any disciplinary action by the commission is arbitrary and capricious.”

Our review of the evidence convinces us that the dismissal of appellant was made “for cause.” There is ample evidence to sustain the Board’s decision that the appellant committed the violation charged.

The disciplining of a police officer for disrespectful language toward a superior was expressly upheld in Kannisto v. City and County of San Francisco, 541 F.2d 841 (C.A. 9, 1976). We approved this decision in the first Dumez case, supra.

Appellant further argues that he was not accorded equal treatment and was thus discriminated against in violation of his constitutional rights. The burden of proving that the disciplinary action taken is discriminatory is upon the employee. See Brown v. L. H. H. R. A., 346 So.2d 758 (La.App. 1 Cir. 1977). Our review of the record fails to reveal any manifest error on the part of the Board or the trial court in finding that Dumez failed to prove his dismissal was due to discrimination.

In discussing this question, the trial judge observed:

“... This claim has caused the court some concern because the record is clear that another police officer, Officer Ernie Rhodes, was found guilty of conduct similar to that of Mr. Dumez, and said officer received only a ninety day suspension by the Civil Service Board.
“The record has established that the Chief of Police and the appointing authority, the City of Houma, Louisiana, fired Mr. Dumez and Mr. Rhodes for their language towards superior officers. They were both treated the same and equal by the Chief of Police and appointing authority. Both Mr. Dumez and Mr. Rhodes appealed their firing by the appointing authority to the Civil Service Board. The Civil Service Board in Mr. Rhodes’ case overruled the Chief of Police and the appointing authority and reduced the termination of employment to a suspension from duty for ninety days. The fact that the appointing authority did not appeal and seek the reversal of the action of the Civil Service Board in ordering Mr. Rhodes restored to his position of employment cannot now inure to the benefit of Mr. Dumez.
“The court cannot overrule a decision of the Civil Service Board merely because it disagrees with the penalty imposed. [Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4 Cir. 1978), writ denied, 365 So.2d 247 (La.1978).]
“The district court is limited by the provisions of La.R.S. 33:2501 to a determination of whether the decision made by the Board was made on good faith for cause. The court therefore can only determine if the Board acted in good faith for cause in affirming the governing authority’s dismissal of Mr. Dumez. Based on the record of the Civil Service hearing the court is satisfied that such was the case and that the action of the Board in upholding his discharge was based on good faith for cause. The court cannot substitute its judgment for that of the Board. Whether such cause was sufficient to justify the dismissal was a question determinable by the Board and not by the court (Marchiafava v. Baton Rouge Fire and Police Civil Service Board, [233 La. 17] 96 So.2d 26, Patrick v. Lake Charles Mun. Fire and Police, 344 So.2d 1121).
“The court after reviewing the record has concluded that since the Civil Service Board has found as a fact that the appointing authority acted in good faith for legal cause and because there is nothing in the record to warrant or justify this court overruling the findings by the Civil Service Board, the decision of said Board should be upheld and not be reversed.”

This court finds that the action of the Board in dismissing Keith L. Dumez, a tenured employee, was not arbitrary or capricious, but was in good faith, and for cause; and that its action was supported by substantial evidence of a statutory violation committed by Dumez.

Accordingly, the judgment of the District Court is affirmed at appellant’s costs.

AFFIRMED.