text:
    STATE of Louisiana ex rel., Francisco LaBRANO v. Ross MAGGIO, Jr., Warden, Hunt Correctional Center.
    No. 80-KH-1614.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Francisco LaBrano applying for writs of remedial, certiorari, prohibition, mandamus and habeas corpus. Parish of Orleans. No. 222-098.

Granted. Evidentiary hearing is ordered. Remanded.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Ronald O'Shea BOWDEN, III.
    No. 80-K-2693.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   Ronald O’Shea Bowden, III, applying for writ of certiorari. Parish of Lincoln. No. 25667.

Writ denied.


text:
    James T. CLYNES v. Elaine Lowe Clynes, wife of James T. CLYNES.
    No. 80-C-2695.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Elaine Lowe Clynes, wife of James T. Clynes, applying for supervisory remedial writs. Parish of Orleans. No. 77-14554.

Writ denied.

DIXON, C. J., and DENNIS, J., would grant the writ.


text:
    DAVID SHELTON AMVETS POST 60 v. Mrs. Andrus SAM.
    No. 80-C-2629.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re David Shelton Amvets Post 60, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 389 So.2d 785.

Denied.


text:
    John F. MANZANARES et ux. v. AMERICAN INTERNATIONAL FOREST PRODUCTS, INC. et al.
    No. 80-C-2596.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Pierre Guidry & Son, Inc., applying for writs of certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 389 So.2d 1142.

Writ denied.

LEMMON, J., would grant the writ.


text:
    Tazie MANUEL v. Rena PITRE.
    No. 80-C-2606.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Tazie Manuel, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 389 So.2d 774.

Denied.


text:
    Michael ROWEN and Martha Rowen v. MEL'S, a Division of Wright Tailors, Inc.
    No. 80-C-2611.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Michael Rowen and Martha Rowen, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 389 So.2d 893.

Denied.


text:
    Sam COLE, Jr. v. SEARS, ROEBUCK & COMPANY.
    No. 80-C-2614.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Sam Cole, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 389 So.2d 762.

Denied.

WATSON and LEMMON, JJ., would grant the writ.


text:
    James Wayne SAM v. STANDARD FITTINGS COMPANY.
    No. 80-C-2608.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re James Wayne Sam applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 389 So.2d 792.

Request to withdraw granted.


text:
    DIXIE CAMPERS, INC. v. VESELY COMPANY.
    No. 80-C-2631.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Dixie Campers, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 389 So.2d 889.

Granted.


text:
    Samuel L. LIEBER v. Durward RUST.
    No. 80-C-2514.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Samuel L. Lieber, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 388 So.2d 836.

Granted.


text:
    William G. RICHARDS et al. v. Howard V. RICHARDS. Mrs. Loretto Richards O'REILLY v. Horace V. RICHARDS.
    No. 80-C-2559.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Horace V. Richards, applying for writs of certiorari and review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 388 So.2d 1186.

Granted.


text:
    STATE of Louisiana ex rel., William H. HANKINS v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTION D.
    No. 80-KH-1620.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re William H. Hankins, applying for writ of mandamus. Parish of Orleans.

Writ granted. The trial court is ordered to act upon the petition within 14 days of this order.


text:
    STATE of Louisiana v. Richard C. VALENTINE, III.
    No. 80-K-2096.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Richard C. Valentine, III, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Avoyelles. No. 43514.

Writ granted.


text:
    STATE of Louisiana v. Charles K. WALLACE.
    No. 80-K-2327.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re State of Louisiana, on motion to contest stay order Nos. 75883 and 72358. Parish of St. Tammany.

Granted. The stay order previously issued in this case is lifted for the purpose of fixing the case for trial. Otherwise, it will remain in full force and effect.


text:
    STATE of Louisiana v. Aaron B. MORRIS.
    No. 80-K-2609.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Aaron B. Morris, applying for writs of mandamus, certiorari and review. Parish of Tangipahoa.

Granted.


text:
    STATE of Louisiana v. Darryl P. GALLIANO.
    No. 80-K-2615.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari. Parish of Orleans. 272-917.

Granted.


text:
    STATE of Louisiana ex rel., Lloyd JAMES v. STATE of Louisiana.
    No. 80-KH-2641.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Lloyd James, applying for remedial writs. Parish of Orleans.

Granted. It is ordered that defense counsel furnish defendant copy of transcript.


text:
    STATE of Louisiana ex rel., Albert DAWSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2669.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Albert Dawson, applying for remedial writs. Parish of Evangeline. Nos. 24240 and 14106.

Granted. Trial court is ordered to appoint counsel for relator and to conduct an evidentiary hearing on adequacy of counsel on appeal.


text:
    STATE of Louisiana ex rel., Glen A. HEBERT v. Carroll L. SPELL, Judge, 15th Judicial District.
    No. 80-KH-2670.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Glen A. Hebert, applying for writs of certiorari, review, and mandamus. Parish of Acadia. Nos. 31240 and 32102.

Writ granted. The district court is ordered to act on the petition within 30 days.


text:
    STATE of Louisiana v. Mary GUILLORY.
    No. 80-K-2692.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Mary Guillory, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Calcasieu. No. DA-79-298-A.

Writ granted.


text:
    STATE of Louisiana ex rel., Clarence RANDOLPH v. STATE of Louisiana.
    No. 80-KH-2696.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Clarence Randolph, applying for remedial writs. Parish of Orleans. Nos. 267-162 and 145.

Granted. Relator is permitted to act as his own co-counsel.


text:
    STATE of Louisiana ex rel., Phillip Earl BRIDGES v. STATE of Louisiana.
    No. 80-KH-2705.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Phillip Earl Bridges, applying for remedial writs. Parish of Terrebonne.

Granted. The trial court is entitled to allow relator to act as co-counsel.


text:
    STATE of Louisiana ex rel. Farrell BENSON v. Arthur J. PLANCHARD, District Judge, 14th Judicial District Court, Parish of Calcasieu, State of Louisiana.
    No. 80-KH-2222.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Farrell Benson, applying for writ of mandamus. Parish of Calcasieu. No. 3997-78.

Granted. Relator is ordered to be furnished Boykin transcript; otherwise denied.


text:
    STATE of Louisiana ex rel. Francisco LaBRANO v. Warden Ross MAGGIO, Jr., Hunt Correctional Center.
    No. 80-KH-1614.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Francisco LaBrano, applying for reconsideration of granted writ of November 21, 1980. Nos. 222-098; 243-930. Orleans Parish.

Reconsideration granted. The order of this Court dated November 21, 1980, ordering an evidentiary hearing in No. 222-098 on the docket of the Criminal District Court, Parish of Orleans, Section “I”, is hereby recalled. It is hereby ordered that an evidentiary hearing be held in No. 243-930, on the docket of the Criminal District Court, Parish of Orleans, Section “H”, relative to the application denied without a hearing in that case on June 12, 1980.


text:
    STATE of Louisiana v. Harry DEKAY, Jr. and Robert Pitard.
    No. 66367.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Robert Pitard, applying for out of time rehearing, Criminal District Court. Parish of Orleans. Section J.

Denied.

MARCUS and LEMMON, JJ., would' grant a rehearing.


text:
    STATE of Louisiana ex rel. Jerome POSEY v. Frank C. BLACKBURN, Warden.
    No. 80-K-1441.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Jerome Posey, applying for writ of habeas corpus. Parish of Orleans. No. 266-271, Section A.

Denied.


text:
    STATE of Louisiana ex rel. Major Lee FORTENBERRY v. Frank C. BLACKBURN, Warden et al.
    No. 80-KH-1886.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Major Lee Fortenberry, applying for writ of mandamus. Parish of Madison.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Herman SMITH, Jr. v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-1947.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Herman Smith, Jr., applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Assumption, No. 8537.

Denied.


text:
    STATE of Louisiana ex rel., Eddie RICHARDS v. Warden Frank BLACKBURN, Louisiana State Penitentiary et al.
    No. 80-KH-2052.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Eddie Richards, applying for writ of habeas corpus. Parish of Orleans. No. 260-242.

Writ denied.


text:
    STATE of Louisiana ex rel. Clarence E. WILKERSON v. Judge John C. MORRIS, 5th Judicial District Court, Parish of Richland.
    No. 80-KH-2125.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Clarence E. Wilkerson, applying for writ of mandamus. Parish of Richland.

Denied.


text:
    STATE of Louisiana v. David Mark TURNER.
    No. 80-K-2255.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re David Mark Turner, applying for writs of certiorari and review. Parish of St. Tammany. No. 76242.

Writ denied.


text:
    STATE of Louisiana v. Frank Charles FEEBACK.
    No. 80-K-2680.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Frank Charles Feeback, applying for writs of certiorari, prohibition, and mandamus. Parish of Ouachita. No. 39499.

Denied.


text:
    Mae McWilliams WILLIAMS v. The BOARD of SUPERVISORS of LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE.
    No. 80-C-2555.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Mae McWilliams 'Williams, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. 14207. Parish of Caddo. No.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. Johnny Ray SMITH.
    No. 80-K-2561.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Johnny Ray Smith, applying for remedial writs. Parish of LaSalle. . No. 20928.

Denied. Adequate remedy by review in event of conviction.


text:
    Jean STARKEY, Formerly Sandifer v. Hansford L. SANDIFER.
    No. 80-C-2562.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Jean Starkey, formerly Sandifer, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. No. 7822. Parish of LaSalle.

Denied.


text:
    STATE of Louisiana v. Vernon KITSON.
    No. 80-K-2570.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Vernon Kitson, applying for remedial writs. Parish of St. Charles. No. 37736.

Denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Dorothy HANEY (Mrs. Curtis Haney).
    No. 80-K-2581.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Dorothy Haney, applying for remedial writs. Parish of Beauregard. No. CR-502-80.

Denied.


text:
    STATE of Louisiana ex rel., William W. PRUDHOMME v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 80-KH-2583.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re William W. Prudhomme, applying for writ of mandamus. Parish of Catahou-la. No. 78-807.

Denied. Moot.


text:
    Charles D. RICHEY v. GENERAL MOTORS CORPORATION.
    No. 80-C-2594.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Charles D. Richey, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. No. 7832.

Denied.


text:
    STATE of Louisiana ex rel., Gregory ENGLAND v. STATE of Louisiana.
    No. 80-KH-2621.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Gregory England, applying for writ of certiorari. Parish of Jefferson. No. 74311.

Denied.


text:
    STATE of Louisiana v. Kenneth DELAGARDELLE.
    No. 80-K-2626.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re State of Louisiana, applying for writs of certiorari, prohibition, and mandamus through District Attorney, John Ma-moulides. Parish of Jefferson. No. 80-395.

Writ denied.


text:
    STATE of Louisiana ex rel. Thomas WYMAN v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2644.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Thomas Wyman, applying for writ of mandamus. Parish of Jefferson. No. 75-2450.

Denied. Moot.


text:
    STATE of Louisiana v. Davis COOPER.
    No. 80-K-2647.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Davis Cooper, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Avoyelles. No. 44180.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. James ENGLISH.
    No. 80-K-2648.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   James English, applying for writ of review. Parish of Terrebonne. No. 97353.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Jeannette Alimia, wife of/and Philip ALIMIA v. JEFFERSON TRUCK SERVICE, INC. et al.
    No. 80-C-2658.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Jefferson Truck Service, Inc., Phillip Bros. Truck Service, Inc., V & J Marine Service, Inc., Victor Phillip and Joseph Phillip, applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 220-945.

Denied.


text:
    Vernon BOYINGTON v. BITUMINOUS INSURANCE COMPANY.
    No. 80-C-2661.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Vernon Boyington, applying for writs of certiorari and review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 11485.

Denied.


text:
    STATE of Louisiana ex rel., Eddie J. RICHARDS v. Charles R. WARD, Judge Criminal District Court.
    No. 80-KH-2672.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Eddie J. Richards, applying for writ of mandamus. Parish of Orleans. No. 260-242.

Denied.


text:
    STATE of Louisiana ex rel., Craig E. WHITT v. Charles C. FOTI, Sheriff, Parish of Orleans and Sgt. O'Brian, House of Detention.
    No. 80-KH-2702.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Craig E. Whitt, applying for writ of mandamus, and request for restraining order. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel., Craig E. WHITT v. Joe HOWARD, Assistant Warden, House of Detention, and Sgt. Green, Deputy Sheriff for the Orleans Criminal Sheriff, and Charles C. Foti, Criminal Sheriff for the City of New Orleans.
    No. 80-KH-2703.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Craig E. Whitt, applying for writ of mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel., Billy Wayne SINCLAIR v. STATE of Louisiana.
    No. 80-KH-2707.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Billy Wayne Sinclair, applying for writs of certiorari, mandamus and prohibition, from decision of the Committee on Professional Responsibility of the Louisiana State Bar Association in No. 6357.

Writ denied.

BLANCHE, J., recused.


text:
    STATE of Louisiana v. Huey P. HINES.
    No. 80-K-2777.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Huey P. Hines, applying for remedial writs. Parish of Caddo. No. 106838.

Writ denied.


text:
    STATE of Louisiana v. Erwin GARCIA, Edgardo Sussmann and Richard Sussmann.
    No. 80-K-2778.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Erwin Garcia, Edgardo Sussmann, and Richard Sussmann, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Jefferson. No. 80-1308.

Writ denied.


text:
    STATE of Louisiana v. Larry Duyane ROBERTS.
    No. 80-K-2965.
    Supreme Court of Louisiana.
    Dec. 24, 1980.
   In re Larry Duyane Roberts, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of Vermillion. No. 22512.

Granted. Bond reduced to $30,000.00.


text:
    STATE of Louisiana v. Jimmy ROBINSON.
    No. 80-K-2960.
    Supreme Court of Louisiana.
    Dec. 29, 1980.
   In re Jimmy Robinson, applying for writs of certiorari, prohibition and mandamus and stay order. Parish of Jefferson. No. 80-2360.

Writ denied.


text:
    Honorable Charles A. IMBORNONE v. Honorable Thomas A. EARLY, Jr. et al.
    No. 80-C-2986.
    Supreme Court of Louisiana.
    Dec. 30, 1980.
   In re Hon. Charles A. Imbornone, applying for remedial writs and stay order. Parish of Orleans. No. 80-19534.

Writ denied. Applicant must first apply to the district court for recusal. Stay order denied.


author: CHIASSON, Judge.

text:
    J. C. BRYANT et al. v. T.C.B. ENTERPRISES.
    No. 13926.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Donald R. Weber, Baton Rouge, for plaintiffs-appellees J. C. Bryant, Willie Bryant et al.
    Mack I. Frank, T. Kenneth Elbert, Baton Rouge, for appellant T.C.B. Enterprises.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

T.C.B. Enterprises, defendant-appellant, appeals the decision of the trial court annulling and setting aside a tax sale which conveyed to it a tract of land in East Baton Rouge Parish. The tax deed was for unpaid property taxes for 1973 and is dated June 28, 1974. The plaintiffs-appellees are the previous co-owners of the property.

The tract of land comprises 10.2 acres located in the northern part of East Baton Rouge Parish near Zachary, Louisiana. The plaintiffs are descendants of the original owners, Emmitt and Vanice C. Bryant.

Emmitt and Vanice C. Bryant, as husband and wife, owned the tract of land until Emmitt’s death in 1957. At the time of Emmitt’s death, eight children were born of the marriage, six of whom are plaintiffs in this, suit.

A Judgment of Possession, dated June 28, 1961, gave Vfe ownership to Vanice C. Bryant as the surviving spouse in the community and the other V2 undivided ownership went to five of the children. In 1966, because of necessitating circumstances, Vanice C. Bryant signed an instrument purporting to transfer her interest in the property to Em-mitt Bryant, Jr. and Willie Bryant. Mrs. Vanice Bryant continuously lived on the property and was still living there at the time of the trial of this case in the district court.

The notices of assessment for the years 1966-1972 were sent to the following persons at the respective addresses. Included within this description are the dates that the taxes were paid.

1966 Bryant, Vanice C. 1/2 USU F 1/2 etals 1/10 ea. Rt. 2 Zachary, La. 12-8-66
1967 Bryant, J.C. 7/20, Willie Bryant 1/4 etals 607 Oakland S.W. Grand Rapids, Mich. 1-3-68
1968 Bryant, J.C. 7/20, Willie Bryant 1/4 etals 607 Oakland S.W. Grand Rapids, Mich. 4-17-69
1969 Bryant, J.C. 7/20, Willie Bryant 1/4 etals 607 Oakland S.W. Grand Rapids, Mich. 1-13-70
1970 Bryant, J.C. 7/20, Willie Bryant 1/4 etals 607 Oakland S.W. Grand Rapids, Mich. 4-29-71
1971 Bryant, J.C. 7/20, Willie Bryant 1/4 etals 607 Oakland S.W. Grand Rapids, Mich. 5-12-72
1972 Bryant, J.C. 7/20, Willie Bryant 1/4 etals 607 Oakland S.W. Grand Rapids, Mich. 1-6-73

The notice of assessment for the taxes in 1973 was again sent to J. C. Bryant and Willie Bryant at 607 Oakland S.W. in Grand Rapids, Michigan,. No taxes were paid and a delinquent notice for taxes was sent by certified mail to the same address on April 8, 1974. The return receipt was returned with the inscription: “Return to writer not deliverable as addressed no forwarding order on file.”

The plaintiffs filed this suit to annul the tax sale on October 26, 1978, contending that they were never notified of the notice of assessment nor the notice reflecting that if the taxes were not paid, the property was subject to seizure and sale. J. C. Bryant testified that he has never received any type of notice of taxes while living in Michigan. He states that he thought his mother received this information although he has previously made partial payment of some of the taxes.

J. C. Bryant also contends that the address listed on the tax roll was incorrect since he resided at a different address in 1973 and in 1974. Willie Bryant was a resident of Caledonia, Michigan in 1973 and in 1974.

The trial court, citing provisions of the 1974 Louisiana Constitution with applicable provisions of the 1921 Constitution, found that the plaintiffs were entitled to the annulment of the tax sale and that suit had been brought within the five year prescriptive period. The cause for annulment is that the plaintiffs did not receive notice of tax delinquency and that the property would be sold at tax sale unless paid within twenty days.

The defendant contends the trial court erred in holding that the plaintiffs-appel-lees did not receive sufficient notice of tax delinquency.

The applicable provision of Art. 10, Sec. 11 of the 1921 Louisiana Constitution is as follows:

“No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given.. . . ”

This provision is almost identical to Art. 7, Sec. 25 of the 1974 Constitution.

Title 47 of the Revised Statutes sets forth the procedure for giving notice of taxes as well as the requirements for a tax sale. La.R.S. 47:2101 requires the tax collector to send a tax notice stating the amount of taxes that are presently due by the owner of the property. The requirement of La. R.S. 47:2180 provides notice of delinquency to be sent by certified mail to each tax debtor stating the amount of taxes to be paid. In addition, the notice should inform the tax debtor that if the taxes are not paid in twenty days, the property will be sold. A further requirement is the publication in a newspaper of a notice of delinquency.

It is this procedure for giving notice that the trial court relied on in determining that plaintiffs had a cause to annul the tax sale to the appellant.

This Court has held on two different occasions the nullity of tax sales because of insufficient notice to the tax debtor. Sheridan v. Commercial Guaranty & Brokerage Corp., 292 So.2d 317 (La.App. 1st Cir. 1974), and Childress v. Johnson, 387 So.2d 1217 (La.App. 1st Cir. 1980). In citing the Sheridan decision, this Court in Childress stated:

“The giving of notice of delinquency required by the Constitution of 1974, Article 7, § 25 and LSA-R.S. 47:2180 (and its statutory predecessors) is mandatory. See Garry v. Zor, Inc., 181 So.2d 828 (La.App. 4 Cir. 1966).
“Such notice must be given to a tax debt- or before his property may be sold for nonpayment of taxes. Where mailing of such notice is required, and a mailed notice is returned to the tax collector undelivered or unclaimed, the tax collector is required to take additional reasonable steps to notify the tax debtor, and the failure of the tax collector to perform this obligation renders the tax sale null and void. Sheridan v. Commercial Guaranty and Brokerage Corporation, 292 So.2d 317 (La.App. 1 Cir. 1974). Also, when the tax collector, after the tax delinquency notice is sent to the wrong address and returned unclaimed, makes no further effort to ascertain the tax debtor’s correct address and deliver notice, the tax sale is void and the purchaser’s tax title is invalid. Standard Homes, Inc. v. Prestridge, 193 So.2d 100 (La.App. 2 Cir. 1966); see also Succession of Welsch v. Carmadelle, 264 So.2d 341 (La. App. 4 Cir. 1972), writ denied, 262 La. 1181, 266 So.2d 452 (1972).”

Compare Securities Mortg. Co., Inc. v. Triplett, 374 So.2d 1226 (La.1979).

Under these directives, we must ascertain whether the tax collector in this case made any effort to notify the tax debtors of these delinquent taxes after having received the return receipt from the certified notice.

Mike Musso, chief deputy tax auditor for twenty years, testified as to the general practices for the Sheriff’s department in East Baton Rouge Parish. He testified that even though they knew there were other heirs, they only mailed a notice to the first one listed on the assessment rolls. In addition, when a delinquent notice is returned undeliverable, the only effort on the tax collector’s part is to check with the assessor’s office to see if there is a new owner. If there is not a new owner, no further effort is made. He stated that it was “actually impossible for them to follow up on each” of the returned receipts. When asked by the Court if he believed that these property owners had received proper notice, he responded in the negative.

The record herein substantiates these findings: Plaintiffs did not receive any notice of unpaid taxes for the year 1973; no co-owner was residing at 607 Oakland S.W., Grand Rapids, Michigan in 1974 where the notice of unpaid taxes was mailed by the tax collector; and, after return of the receipt, no further effort was made by the tax collector to ascertain the correct addresses of any of the co-owners.

For these reasons, we hold that the tax sale of the following described property is null and void, to wit:

“A certain tract of parcel of land, together with all the buildings and improvements thereon, and all rights, ways, privileges and servitudes there unto appertaining, situated in the former Fifth Ward of East Baton Rouge Parish, Louisiana, taken from West one-half (WVa) of northwest one-fourth (NWV4) of Section 27, T4S, R2E, Greensburg Land District, and described as Lot 1, as shown on map made by O. C. Hollister, Registered Surveyor, dated June 11, 1949, said Lot 1 containing 10.2 acres, more or less, and having the measurements as shown on said map hereinabove referred to, copy of which is attached to Act of Sale dated August 28, 1956, wherein Robert Williams, et al. sold to Louie F. Kent of East Baton Rouge Parish this property.”

The judgment of the trial court annulling and setting aside the sale upon payment of all back taxes and penalties is affirmed at appellant’s costs.

AFFIRMED.

      . Plaintiffs include J. C. Bryant, Willie Bryant, Geraldine Bryant, Shirley Mae Bryant, Johnnie Lee Bryant, and Emmitt Bryant, Jr.

      . Children of Emmitt Bryant, Sr. include J. C. Bryant, Willie Bryant, Geraldine Bryant, Shirley Mae Bryant, Johnnie Lee Bryant, Emmitt Bryant, Jr., Marion Bryant, and Mildred Bryant.

      .Geraldine Bryant, Shirley Mae Bryant, J. C. Bryant, Johnnie Lee Bryant, and Emmitt Bryant, Jr.

      . La.R.S. 47:2180 reads as follows:
      “On the second day of January of each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes, which have been assessed to him on immovable property, or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.
      “The tax collector shall send to each taxpayer by registered mail the notice prescribed herein, provided that in cities containing a population of over fifty thousand persons, the tax collector may either send this notice by registered mail or may make personal or domiciliary service on the taxpayer. After the tax collector shall have completed the service of the notices herein required, either by mail or by personal or domiciliary service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service of notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed, in parishes other than the parish of Orleans, in the office of the clerk of court for recording and preservation. In the parish of Orleans, such proces verbal shall be filed in the office of the state tax collector for the city of New Orleans and preserved for record. This proces verbal shall be received by the courts as evidence. The tax collector shall be entitled to collect from each delinquent taxpayer twenty-five cents as costs for each notice served; no mileage shall be charged for service of the notices. A like charge will be made if the property is adjudicated to the state or any subdivision thereof.
      “The tax collector shall publish one general notice substantially in the form set forth herein, addressed to all unknown owners of assessed immovable property situated in his parish, and to nonresident owners of such property whose post office address is unknown, in which he shall describe the property as described in the tax roll. Such notice shall be published once a week for two weeks in a newspaper published in his parish, or if there be none published in the parish then such notice shall be given in the manner provided by law for judicial sales. He shall pay for the publication, and shall be entitled to collect as costs thereof one dollar from each unknown owner or from the property assessed to him. The collector shall certify on his tax rolls that he has published the notices, and the certificate on either roll shall make full proof thereof until disproved in a judicial proceeding.”


author: ELLIS, Judge:

text:
    CALLAIS CABLEVISION, INC. v. ENTRON, INC.
    No. 13897.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 31, 1981.

      John J. Erny, Jr., Larose, counsel for plaintiff-appellant, Calíais Cablevision, Inc.
    Jerry A. Brown, of Monroe & Lemann, New Orleans, counsel for defendant-appel-lee, Entrón, Inc.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is a redhibition suit in which Calíais Cablevision, Inc., is seeking reduction in the purchase price and damages for the installation of allegedly defective cable by defendant Entrón, Inc. By supplemental petition Times Wire and Cable Co., a subsidiary of Insilco Corporation, was impleaded as a party defendant and alleged to be the manufacturer of the defective cable.

Peremptory exceptions of res judicata and of prescription were filed by Entrón and, after hearings, were overruled by the trial judge. Defendant Entrón then filed an exception of no cause of action. After argument, the trial judge rendered “Reasons for Judgment on Exception of No Right of Action,” sustaining the exception of no right of action and dismissing plaintiff’s case. Judgment was signed accordingly, and plaintiff’s case dismissed. Plaintiff has appealed.

The exception of no cause of action is based on the following facts, which appear in the petitions and the attached documents. On April 29, 1968, Calíais entered into a contract with Entrón by virtue of which Entrón was to construct and sell to Calíais a Community Antenna Television System, consisting of approximately 10 aerial strand miles of cable, and various appurtenances. This system was later extended to 17 miles. By a second contract, dated September 23, 1969, the parties agreed to construct approximately 65 miles of additional cable. From the supplemental petition, we learn that the cable was manufactured by Times Wire and Cable Co.

The pleadings and attachments do not enlighten us as to when or if the contract was completed and accepted. The original petition was filed on August 11, 1975, and alleged that in December, 1974, it was discovered that “the cable installed was so defective in that it was absolutely useless, or so inconvenient and imperfect that had your petitioner, Calíais Cablevision, Inc., known of the vice and defect at the time of its purchase, that Calíais Cablevision, Inc., would not have purchased the aforesaid cable.”

The following provisions relative to warranty appear in both contracts:

“9. a. Entrón expressly warrants that the equipment of its manufacture purchased hereunder shall be free from defects in material and workmanship under normal use and service for a period of one year after completion and acceptance of the System. Entron’s obligations under this warranty shall be limited to the repair or replacement of parts which its examination shall disclose to its reasonable satisfaction to have been thus defective. Tubes, transistors, batteries and fuses shall bear only the warranty, if any, accompanying them at the time of delivery to Buyer. All cable and equipment, including but not limited to coaxial cable, support strand, lash wire, anchors, guys, and such other related devices as are required to install and operate the System which are to be supplied but not manufactured by Entrón shall be warranted only in accordance with the terms of the warranties given by the respective manufacturers of such items.
c. Except for the express warranty set forth herein, Entrón makes no warranty of any kind, express or implied, and all warranties of merchantability, fitness for a particular purpose, and other warranties of whatever kind are hereby disclaimed by Entrón and excluded. Entron’s liability under this Agreement shall be strictly limited to repair or replacement of defective work or materials in accordance with this warranty provision, and in no event shall Entrón be liable for special, contingent or consequential damage or damages. Further, the express warranties set forth herein shall be void unless Buyer gives Entrón written notice within the subject period of time of any claim based on the express warranties set forth herein. Any such notice shall be sent to Entrón at the above address and shall not be deemed effective until received by Entrón.”

The exception of no right of action raises the question of plaintiff’s interest in the subject matter of the suit; that is, whether the plaintiff, as a matter of law, falls within the general class who may exercise the cause of action asserted. Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977). The trial judge found that plaintiff was aware of and was bound by the limitations on warranty contained in the contract, and that, by failing to assert its claim within the time limitations expressed therein, the plaintiff lost its right of action. The effect of the holding is that, because there is a defense to the action, plaintiff had no right of action. This is a misapplication of the law. The right of action exists as a matter of law, unrelated to the merits of the case. Plaintiff is clearly in the class of persons to whom the redhibitory action is available, entitled to assert that cause of action. See Bielkiewicz v. Rudisill, 201 So.2d 136 (La. App. 3rd Cir. 1967).

Turning to the exception of no cause of action, we find that plaintiff has clearly alleged a cause of action in redhibition. Defendant, in effect, is saying that, because of the language limiting the warranty, plaintiff is barred from asserting his cause of action. We note, however, that defendant is bound under the contract to warrant the cable in accordance with the warranties given by its manufacturer. The petition does not enlighten us as to the extent of these warranties. We do not know from the petition when the job was accepted, and we do not know that plaintiff failed to give written notice within one year after the acceptance. Without knowledge of these facts, we cannot say that the defense urged by defendant through its exception is valid. The exception of no cause of action must therefore be overruled.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for further proceedings according to law. All costs of this appeal shall be paid by defendant, with all other costs to await final disposition hereof.

REVERSED AND REMANDED.


text:
    HOUMA OIL COMPANY, INC. v. Carroll D. McKEY.
    No. 13941.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 31, 1981.

      Stanwood R. Duval, Jr., Houma, counsel for plaintiff and appellant.
    Jerry H. Schwab, Houma, counsel for defendant and appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

On September 10, 1976, plaintiff Houma Oil Company, Inc., entered into a lease with defendant Carroll D. McKey, by virtue of which plaintiff leased a parcel of ground with improvements for use as a retail gasoline station and automobile tire service outlet. At some point after entering into the lease and beginning operation of its business, plaintiff began to experience difficulties with the wiring in the building, and flooding of the premises when it rained. Plaintiff attempted to have defendant make the necessary repairs, but defendant refused on the basis that the lease required that plaintiff make all repairs.

This suit was originally for a declaratory judgment, with plaintiff seeking to have the court declare that it was entitled to withhold rental payments in an amount sufficient to make the necessary repairs to the roof and wiring system, and, alternatively, to permit plaintiff to withdraw from the lease.

Subsequently, plaintiff amended the original petition, alleging that it had been forced to abandon the premises in August, 1978, because of the poor condition of the premises, and asking for a cancellation of the lease and damages. Defendant reconvened for sums he would allegedly have to spend because of damage done to the premises by plaintiff.

The lease entered into by the parties contains the following pertinent provisions:

“IV.
“A. The Lessee will make all necessary repairs, including repairs to the roof and flooring, to keep the leased property in as good order as it now is, ordinary wear and tear excepted, and is also to keep all toilets in repair to conform with good sanitary conditions.”
“VIII.
“Lessee may make such additions or alterations to the premises as Lessee may deem necessary; such additions, alterations or improvements so made (except movable trade fixtures or other items which may be removed from the leased premises without permanent damage thereto) must remain the property of Lessor.”

The lease is silent as to the condition of the premises at the time of the lease, and there is no provision in the lease which states that the lessee accepts the premises in their present condition.

Articles 2693 and 2694 of the Civil Code provide as follows:

“Art. 2693. The lessor is bound to deliver the thing in good condition, and free from any repairs. He ought to make, during the continuance of the lease, all the repairs which may accidentally become necessary; except those which the tenant is bound to make, as hereafter directed.”
“Art. 2694. If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuse or neglect to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.”

Even when a lease contains a provision, as in this case, that the lessee is liable for all repairs, the landlord is not relieved of his obligation to deliver the premises in good condition, free from repairs. Barrow v. Culver Bros. Garage, 78 So.2d 69 (La. App. 2nd Cir. 1955); Machen v. Gulf Oil Corporation, 184 So.2d 550 (La. App. 2nd Cir. 1966).

Therefore, if the deficiencies complained of by plaintiff existed at the time of the lease, it was defendant’s responsibility to make repairs to same.

With respect to the wiring it is clear that the system was antiquated, but that, when installed, it had met the requirements of the time. It is further clear that the wiring was not in compliance with present day building code requirements. The record further reflects that the system was adequate for the needs of the gasoline and tire business which had formerly been conducted at that location by defendant. After plaintiff began to operate its business it changed the gas pump, installed additional equipment and new electric signs, and found the system to be inadequate for the new loads imposed on it. We agree with the trial judge that expansion of the system to meet increased needs is the responsibility of the plaintiff lessee, under Article VIII of the lease.

With respect to the roof, we find that lessor admitted that the roof leaked in two or three places at the time of the lease, although he characterized the leaks as minor. He testified that the flooding of the interior was due to faulty drainage of the entire area during heavy rains. Plaintiff conceded that flooding took place from the streets during heavy rains, but stated that the roof leaks were severe, and prevented work from being carried out when it rained, whether there was flooding from the streets or not. We find the record clearly shows that the roof leaked when the lease was executed, that the leaks were serious defects, and that the defendant had the obligation to repair it. The finding of the trial judge to the contrary was manifestly erroneous and clearly wrong.

We further find that the refusal of the defendant to repair the roof constitutes a breach of the lease between him and plaintiff. When a landlord fails or refuses to make repairs required of him by law, two courses of action are open to the lessee. He may perform the repairs which are the responsibility of the lessor, and deduct the cost thereof from the rent due, under Article 2694 of the Civil Code, but he is not obligated to pursue this course of action. The lessee may also demand the cancellation of the lease, under Article 2729 of the Civil Code. In the latter case, however, he must show that the lessor has failed or refused to comply with his obligations, and that he has been seriously disturbed in his possession as a consequence, or that the premises are no longer suitable for the purpose for which leased. Article 2729, Civil Code; Reed v. Classified Parking System, 232 So.2d 103 (La. App. 2nd Cir. 1970).

In this case, we find that the record preponderated to the effect that plaintiff was sufficiently disturbed in its possession by the leaks in the roof to entitle it to cancellation of the lease.

In its supplemental petition, plaintiff alleged that it had been forced to abandon the premises in August, 1978, because of the refusal of defendant to make the repairs required, and demanded the cancellation of the lease as of the end of July, 1978. The amended petition was filed on January 7, 1980. It further alleged that it continued to pay rent at the rate of $1,000.00 per month from that time, and demands reimbursement of rent paid since the abandonment of the building. Plaintiff also demands lost profits at the rate of $3,000.00 per month. The record shows that plaintiff did move its business out of the building in August, 1978, when it merged with a tire business which was being operated at another location. However, it continued to use a portion of the premises as a warehouse, for storage of some of its stock.

We do not believe that plaintiff is entitled to retroactive cancellation of the lease. He voluntarily continued to pay rent after leaving the premises, and continued to make use thereof, although not as extensively as before. We do find, however, that plaintiff is entitled to cancellation of the lease from the date of judicial demand, January 7, 1980, and to reimbursement for all rent paid from that date.

We find that plaintiff has not proven with legal certainty that it suffered any lost profits by virtue of the breach of the lease by defendant. The profits from the business at that location were shown on a month by month basis. However, it further appeared that the tire business was merged with another, and there is no showing that there was any diminution of profits while the business continued to operate thereafter.

Turning now to the reconventional demand of defendant, we find that defendant was able to prove that there was damage to a canopy, which would cost $687.00 to repair, and broken glass which would cost $649.95 to replace. Plaintiff admits in brief that it is responsible for those amounts.

Defendant also seeks $6,275.00 to repair the wiring in the building. The record shows that the wiring in the building was antiquated, and did not meet present day code requirements, but there was no necessity to perform any repair work to upgrade the system to code requirements so long as electric service was continuously furnished to the premises. However, when plaintiff moved out of the building, it had the service discontinued. Under present regulations, electric service can not be resumed until the wiring is brought up to present day code standards. Defendant claims that since plaintiff discontinued the electric service, plaintiff should pay for repairing the wiring. The trial judge awarded the defendant $6,275.00 for wiring repairs.

We cannot agree. We have found that plaintiff was entitled to cancellation of the lease because of defendant’s failure to repair the roof. We further find that it was justified in removing its business from the premises because of the inconvenience of its use due to the leaking roof. We can see no reason why plaintiff should have continued the electric service under those circumstances, or why it should be responsible for the repair to defendant’s substandard wiring.

The judgment on the main demand is therefore reversed and set aside, and there will be judgment herein in favor of plaintiff ordering the cancellation of the lease, effective January 7, 1980; and further ordering defendant to refund to plaintiff all rents paid subsequent to January 7, 1980.

The judgment on the reconventional demand is amended so as to reduce the amount thereof to $1,336.95, and as amended it is affirmed.

Defendant shall pay all costs.

REVERSED IN PART, AMENDED IN PART AND RENDERED.


author: COLE, Judge.

text:
    Brownie Reed HEBERT v. GULF STATES UTILITIES et al.
    No. 13879.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Ben L. Guelfo, Baton Rouge, for Fidelity & Casualty Co. of New York.
    Vance R. Andrus, Lafayette, for Brownie Reed Hebert.
    W. Luther Wilson, Baton Rouge, for Gulf States Utilities Co.
    Ben L. Day, Baton Rouge, for Kelly R. Parrino d/b/a K. R. Parrino Builders.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issue in this personal injury case is whether or not plaintiff-appellant’s conduct should bar his recovery. Because we find the trial court did not commit manifest error in finding in favor of defendant-ap-pellee, we affirm.

This litigation arose from the following facts. The appellant, Brownie Reed Hebert, was employed by Southern Structures, Inc., as an iron pusher. In the summer of 1977 he was working as the foreman of a crew constructing a metal building in the Choctaw Drive area of Baton Rouge. Hebert had trained for three years at a trade school in the field of iron working and had been employed by Southern Structures for approximately one and a half years. He had been involved in the construction of approximately 20 metal buildings.

On July 28, 1977, Mr. Hebert was operating a crane boom referred to as a “cherry picker.” While attempting to hoist a sheet of metal, the crane became entangled in the nearby power lines. The lines, owned by Gulf States Utilities Company (GSU), consisted of four separate wires running east to west. Three of the wires were energized, one was a neutral line. No one was injured but electrical service to the area was severed. Mr. T. Odis McKnight, special legal investigator for Gulf States Utilities, visited the construction site, supervised the removal of the boom from the lines, and admonished Hebert for contacting the power lines. There is some dispute in the record concerning the exact nature of the conversation between McKnight and Hebert, but the evidence indicates there was no discussion about deenergizing or relocating the lines in order to insure the safety of the workers as they continued the construction of the building. Mr. McKnight testified Mr. Hebert assured him the crane would not be used again and the lines would pose no problem to the continuation of the construction. The record shows the lines were “insulated by isolation,” i. e., they were placed so they were isolated from contact with humans, but were not covered with protective material.

Four days later, on August 1, 1977, the accident which is the subject of this litigation occurred. Mr. Hebert climbed a ladder and stood on the end wall rafter of the partially constructed building. His intention was to lift and secure a 20 foot long metal fascial angle iron, which would run from the side wall of the building to the peak of the roof. When he reached the top of the ladder he stood on the end wall beam which was about 18 feet from the ground. He testified the rafter was somewhat wobbly so he had to concentrate on keeping his balance. Once he reached his ultimate position he turned his back to the electrical lines and reached for the fascial angle iron which was leaning against the outside of the building. He began to pull the angle iron up toward him, hand over hand, until his hands reached the middle portion of the iron. He then began to twist the iron in order to position it properly. At this point the iron made contact with the southernmost electrical line which carried 7,600 volts of electricity. Mr. Hebert was severely burned by the current, was knocked unconscious, and fell to the ground. He suffered serious burns on his hands and feet and underwent several operations. As of trial he was unable to put any weight on the heels of his feet and was able to walk only by walking on the balls of his feet.

Mr. Hebert filed suit against Gulf States Utilities Company, the owner of the line, and against Kelly R. Parrino, the owner of the property. Mr. Parrino was dismissed on a motion for summary judgment because of the exclusiveness of workmen's compensation remedy, and this court upheld that dismissal. Hebert v. Gulf States Utilities Co., 369 So.2d 1104 (La.App. 1st Cir. 1979), writ denied 1979.

After a trial by jury a verdict was returned in favor of GSU and judgment was entered accordingly. Appellant appeals and assigns three errors: first, that the judgment was erroneous in holding GSU free from fault; second, that the judgment was erroneous in not finding in favor of Brownie Reed Hebert; and third, that the court erred in failing to give certain special jury instructions.

The appellate court’s role in cases involving the correctness of jury instructions was clarified in Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). The Supreme Court relied on La.Const. art. VII, § 29 (1921) [now art. V, § 10(B)] for the proposition that even if the trial court erred in giving or failing to give special jury instructions, the appellate court is to decide the case on the record rather than remand it to the trial court. This philosophy was-recently reiterated and explained in Ragas v. Argonaut Southwest Ins. Co., et al., 388 So.2d 707 (La.1980). In Ragas the court explained the seeming inconsistency between the manifest error rule and the Gonzales procedure that requires an original finding of facts by the appellate court. The Ragas court explained the manifest error rule deals with the fact finding function of the trial court and assumes the legal issues were correctly decided. The Gonzales rule treats the situation where there has been a legal error committed by the trial court. In the latter case, the appellate court should examine the record and decide the issue without remanding the case to the trial court, provided the weight of the evidence is not so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues.

In light of the pronouncements of Gonzales, supra, and Ragas, supra, we need not dwell upon the alleged errors in jury instruction, for even if we found error in the failure to give certain instructions, the recent jurisprudence mandates, we simply decide the case based upon a careful examination of the record. This record reveals that regardless of the jury instructions, the verdict of the jury was correct. A preponderance of the relevant and operative evidence is easily ascertained from the cold record rendering unnecessary a view of the witnesses.

Appellant’s first assignment of error, that the judgment was erroneous in finding GSU free of fault, presents somewhat of a problem. It is unclear from the jury verdict whether or not the jury found GSU to be free of fault. It is true that the verdict was in favor of GSU but it is possible the jury found GSU to be at fault but rendered a verdict in GSU’s favor because they found Hebert’s conduct to have barred his recovery. Appellant’s second assigned error, that the judgment was erroneous in not finding in favor of Brownie Reed Hebert, seems to speak more directly to the crux of the case and we must focus our review upon this allegation of error.

We find the jury did not err in failing to find in favor of Mr. Hebert. We reach this conclusion without deciding whether or not GSU was free of fault. A careful examination of the record convinces us Mr. Hebert’s conduct was sufficiently careless so as to bar his recovery even if GSU was at fault. The jury was instructed on several theories of liability: regular negligence, strict liability under La.Civ. Code art. 2317, and special mention was made of the high degree of care owed by a utility company. Certainly, the record shows Mr. Hebert’s behavior fell below the standard of a reasonably prudent person and he would be barred from recovery under the regular negligence standard. The record also supports the conclusion that even if the jury reached its verdict under the 2317 strict liability standard, the accident was caused by “fault of the victim” so as to bar his recovery under that theory also.

The facts as revealed by the evidence leave no doubt Mr. Hebert was aware of the existence of the power lines. This was shown by the fact his crane became entangled in the electric lines only four days before the accident. He was not injured at that time because his position at the moment of contact did not allow an electrical shock to occur. However, he admitted at trial he was aware of the inherent danger of the lines and knew it was important not to touch them with the equipment. After the incident involving the crane, Mr. Hebert discussed the problem with Mr. McKnight and assured him the lines would pose no further problems because the crane was not going to be used again.

The record shows that as Mr. Hebert climbed the ladder he was facing the electrical lines. The building was approximately 18 feet tall and the wires were approximately 26 feet above the ground or 8 feet above the building. Assuming that Mr. Hebert is at least five and one half feet tall, the wires were only two and one half feet higher than his head as he stood on the end wall rafter. And, the line was only three and one half feet away (horizontally) from the building. In spite of the obvious proximity of the lines, Mr. Hebert positioned himself with his back to the lines and began to pull up the long angle iron. He testified his main concern at the moment preceding the accident was the maintenance of his balance. While this is certainly understandable, we cannot escape the conclusion that he voluntarily exposed himself to an unreasonable risk in choosing to handle the iron with little or no regard for the electrical lines only several feet away. In short, Mr. Hebert knew the lines were close to the building, he knew they were dangerous, he knew it was quite easy to inadvertently make contact with the lines as evidenced by the previous incident with the crane, yet he proceeded to put his back to the lines and lift the awkward angle iron with little or no concern for the possibility that the iron might touch the electrical lines. It is evident this lack of caution on his part constitutes fault sufficient to bar his recovery under any theory of liability.

An examination of the jurisprudence reveals numerous cases involving plaintiffs who were electrocuted or severely shocked when their equipment contacted overhead electrical wires. In several of the cases the plaintiff’s conduct barred his recovery.

The facts of Kent v. Gulf States Utilities Company, No. 13,205,-So.2d-(La. App. 1st Cir. 1980), are similar to the instant case. Plaintiff, an 18 year old construction worker, was using a 30 foot long metal rake to make grooves on the freshly poured highway surface. He and his coworker devised a “flip-flop” method of moving the rake from one side of the highway to the other side. As they progressed closer to the power lines hanging nearby, an inspector warned them of the lines. The young men acknowledged the lines’ presence. The coworker testified he and Kent discussed the danger of the lines as they worked. Only moments before the long handle of the rake made contact with the line, another coworker warned them of the lines. At that point, Kent joked about his coworker being electrocuted. Kent was seriously and permanently injured by the severe electrical shock he received when the rake handle touched the electrical lines. This court reversed a jury trial award finding plaintiff’s behavior sufficiently negligent to bar his recovery under any one of the three possible theories: negligence, La. Civ. Code art. 2317 strict liability, or ultra-hazardous activity. The court stated:

“For purposes of this decision, we need not look beyond the principle that where the facts of a case prove plaintiff fully understood the danger which was involved and then voluntarily exposed himself to the danger, he is guilty of victim fault precluding recovery. In plain language, facts which establish the defense of assumption of risk are always sufficient to establish the defense of victim fault as related to imposition of strict liability.”

The holding of Kent guides our reasoning in this case. Both cases involve workers who were aware of the overhead lines and of their inherent danger. In Kent there were numerous warnings by coworkers; in the present case there was a previous accident only days before. Both plaintiffs were working with long, awkward pieces of metal. Both plaintiffs voluntarily exposed themselves to an unreasonable risk by working in close proximity of clearly visible lines without taking the necessary care to avoid making contact.

In Bolden v. New Orleans Public Service, Inc., 349 So.2d 377 (La.App. 4th Cir. 1977), writ refused 1977, plaintiff an 18 year old, was attempting to erect an aluminum TV antenna. The antenna touched an overhead wire and plaintiff suffered severe electrical shocks. The court denied recovery finding plaintiff’s behavior constituted contributory negligence.

“It has been well established in the jurisprudence of this state that a person who knowingly allows a metal object to come into contact with an uninsulated energized wire is deemed to be contribu-torily negligent.”

The facts of Simon v. Southwest Louisiana Elec. Membership Corp., 380 So.2d 1242 (La.App. 3d Cir. 1980), consolidated with Vincent v. Southwest La. Elec. Membership Corp., 380 So.2d 1245 (La.App. 3d Cir. 1980), are similar to the facts in the present case. Decedent was engaged in drilling a water well in Acadia Parish. The procedure involved using a hand-turned auger. As the auger was screwed into the ground a three foot section of three quarter inch pipe was attached to the top end of the auger. The auger was periodically pulled up in order to remove the soil from around it. After all the sections of the pipe were connected the drilling apparatus was about forty-two feet long. A high voltage line was located approximately 15 feet from the drilling site. The line, like the line in the present case, was about twenty-six feet above the ground, or about ten to eleven feet higher than required by the National Electric Safety Code. The top end of the drilling apparatus came in contact with the power line and decedent was electrocuted.

The Third Circuit refused to allow decedent’s spouse to recover for his wrongful death finding decedent’s behavior barred his recovery. The court stated:

“Vincent, by exercising the de minimis amount of caution could have avoided this accident. All parties engaged in the drilling operation knew the pipe, once removed from the hole, swayed considerably and was quite flexible.”

The appellate court then discussed various alternative measures that could have been taken by the plaintiff and noted that the line, like the one in the present case, was constructed at a height quite a bit higher than required by the National Electric Safety Code. The Simon court went on to say:

“To hold SLEMCO liable under the facts of this case would be to make operators of high voltage lines insurers of the safety of virtually anyone coming into contact with their lines, no matter how.”

The Simon and Vincent cases were affirmed October 20, 1980, by the Supreme Court (Docket Numbers 67,311 and 67,356). The Supreme Court did not reach the issue of contributory negligence, finding the defendant utility company had not breached its duty to the plaintiffs. The court noted that a few days before the accident defendant’s employee had warned the men digging the well of the presence of the nearby power lines. The court said:

“Under the circumstances, this warning by SLEMCO employees to this individual, coupled with SLEMCO’s placement of these lines so that their presence was apparent to others, were sufficient to discharge the duty of care owed to the decedents by SLEMCO.”

Following this line of reasoning one might conclude GSU, like SLEMCO, fulfilled its duty to plaintiff by discussing the presence of the lines with him several days before the accident, and by placing the lines so they were in clear view of anyone working near them.

The facts of Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), rehearing denied 1976, are quite different from the present case and therefore we need not dwell upon its holding. However, the Court made an observation that is pertinent to all cases involving injuries caused by electrical lines. The court stated:

“Electric wires on a pole are an announcement of danger to almost anyone smart enough and old enough to get himself in contact with a wire 28 feet above the ground.”

We agree with this observation and feel the facts indicate Mr. Hebert ignored the “announcement of danger” and proceeded to operate as though he was nowhere near any electrical lines.

Plaintiff-appellant cites Boure v. New Orleans Public Service, Inc., 255 So.2d 776 (La.App. 4th Cir. 1971), writ refused 1972, for the proposition that when there is reason to apprehend that persons may come in contact with wires, the wires should be protected in some manner. We find the facts of Boure make it easily distinguishable from the present case. In Boure plaintiff, an industrial painter, was engaged in spray painting the underside of Interstate 10 bridge over the Industrial Canal in New Orleans. Sixteen feet below the bridge were several uninsulated wires carrying 115,000 volts apiece. As plaintiff was using the spray gun with a 200-250 foot hose, the hose hit the line and shocked him. The court found plaintiff free from negligence because the accident was not attributable to a failure to take adequate measures to protect himself. Apparently the trial court found the manner in which plaintiff was operating the spray gun to be entirely reasonable. The court noted that another employee had the duty to see the hose was tautly stretched so as to avoid hitting the line. The plaintiff had no control over the location and position of the equipment. We find the lack of control by the injured employee makes this case quite different from the ease at hand where Mr. Hebert was in charge of the job and had complete discretion as to how to handle the angle iron. Mr. Boure was apparently simply following the orders of his superiors while Mr. Hebert had no one to answer to but himself and could have chosen to handle the iron in a more cautious manner. Therefore, because of this factual difference, we find the holding of the Boure case to be inapplicable here.

Another case relied upon by appellant, Burley v. Louisiana Power & Light Company, 327 So.2d 585 (La.App. 4th Cir. 1976), also contains quite different facts from the case at hand. In Burley, plaintiff was involved in threading a 25 foot long rod into a beam. He was sitting atop a partially constructed building, his back to the wires that stood five feet seven inches from the edge of the building. The building and the wires were both approximately 31 feet tall. Contrary to the present case, plaintiff was unaware of the existence of the wires and the fact that the wires were the same height as the building made them hard to see. The accident occurred on plaintiff’s first day on the job, only several hours after plaintiff had arrived. The evidence showed another employee had worked at the site for a week before he noticed the power lines. This is clearly different from the case at hand where plaintiff was aware of the wires as evidenced by the accident only four days before. Again, we cannot rely upon the holding of Burley because of the significant factual distinction.

We conclude the jury verdict in favor of GSU is not erroneous. Plaintiff’s conduct was sufficiently careless so as to bar his recovery under any theory of liability. To hold differently would be to make a utility company an insurer of the safety of all persons, including those like Mr. Hebert, who are intelligent, mature adults, completely aware of the existence of the power lines and of their inherent danger. The circumstances of the instant case mandated that Mr. Hebert proceed with the utmost of caution in order to avoid contacting the lines. The evidence shows he did not exercise the caution of a reasonably prudent person, but instead voluntarily exposed himself to a known danger. For these reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.

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

      . The 1961 National Electric Safety Code, the code applicable to these electric lines which were constructed in 1967, requires the line to be at least 15 feet above ground.

      . The same code requires a minimal horizontal clearance of 3 feet.


text:
    Ed MOORE v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.
    No. 13882.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 31, 1981.
    Norman L. Williams, Lake Charles, and J. Minos Simon, Lafayette, counsel for plaintiff-appellant, Ed Moore.

      Donald T. W. Phelps, Baton Rouge, counsel for defendants-appellees, St. Paul Fire & Marine Ins. Co., Joseph A. Morgan, M. D., and The Bone and Joint Clinic.
    Lloyd W. Hayes, New Orleans, counsel for defendant-appellee, Thomas Campanel-lo, M. D.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This is a medical malpractice suit. The issues on review are the standard of care required of the attending defendant physician, and whether or not the trial court was clearly wrong in finding plaintiff did not establish defendant’s failure to exercise the requisite degree of skill and knowledge in administering treatment.

In detailed written reasons for judgment, the trial court recited the basic facts of this case. Our exhaustive review of the entire record convinces us the relevant facts set forth are accurate. We adopt them for this opinion and attach the assigned reasons for further reference.

STANDARD OF CARE

The attending defendant physician, Joe A. Morgan, is a board certified orthopedic surgeon. He is further skilled as an expert in the sub-specialty of hand surgery. Plaintiff argues the standard of care applicable in this case imposes a duty greater than that owed by a regular orthopedic surgeon. He reasons defendant failed not only to exercise the degree of skill and knowledge possessed by a specialist orthopedic surgeon but also failed to exercise that degree of skill and knowledge possessed by practitioners within the sub-specialty of hand surgery.

We conclude as regards Volkmann’s is-chemic contracture syndrome, the standard of care is the same for both an orthopedic surgeon and one further skilled in hand surgery. It is true the hand surgeon sees more cases of disability resulting from this insidious vascular condition than does a regular orthopedic surgeon, but this “after the fact” experience does not qualify the hand surgeon to more readily recognize the symptoms and make an accurate diagnosis. It is the regular orthopedic surgeon who is found at the threshold of impending Volk-mann’s ischemic contracture. This extremely rare condition affords neither medical discipline the opportunity to gain much experience in diagnosis. As noted by the trial judge, many orthopedic surgeons will not see a single case of Volkmann’s during their entire medical career.

The overwhelming weight of the evidence dictates the standard of care applicable to Dr. Morgan under the facts and circumstances of this case is that imposed upon regular orthopedic surgeons. His sub-specialty of hand surgery is not relevant. Of the four experts who gave testimony only one, Dr. Louis C. Huesmann, II, placed any emphasis upon the fact defendant engaged in hand surgery as a sub-specialty. While he felt a hand surgeon should be extremely aware of potential complications following the type trauma and surgery plaintiff experienced, he frankly admitted he did not know what emphasis, if any, was placed upon Volkmann’s syndrome during defendant’s training in hand surgery. Significantly, Dr. Daniel C. Riordan, renowned as an expert in hand surgery, premised his deposed testimony upon Dr. Morgan’s status as a regular orthopedic surgeon, not upon his sub-specialty of hand surgery. The nature of the malady, together with symptoms which are almost entirely the same as those which would normally be manifested in plaintiff’s post-operative condition, is such that its diagnosis and treatment falls within the expertise of the regular orthopedic surgeon. This is clearly established by the evidence and mandates the conclusion Dr. Morgan is held only to that degree of skill and knowledge possessed by practitioners within the field of orthopedic surgery.

At the time of the incident, La.R.S. 9:2794 provided, in pertinent part:

“A In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
“(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists practicing in the same community or locality to that in which the defendant practices; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty." (Emphasis added.)

It is obvious from the evidence the alleged acts of medical negligence attributable to Dr. Morgan do not raise issues peculiar to the medical specialty of hand surgery. It is just as obvious the alleged acts of medical negligence do raise issues peculiar to the medical specialty of orthopedic surgery. Within the factual context of this case, we deem La.R.S. 9:2794 to be dispositive of the issue concerning the standard by which Dr. Morgan’s conduct is to be judged.

TRIAL COURT’S CONCLUSION

Our reading of the entire record, together with a careful review of the applicable law, convinces us the trial court judgment is correct. We approve and adopt as our own the reasons of the trial court. The record substantiates a reasonable factual basis for the findings of the trial court and establishes its finding is not clearly wrong. While we are sympathetic to the plight of the plaintiff, as was the trial judge, application of the proper standard of appellate review mandates affirmance of the judgment appealed. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); B & L Associates, Inc. v. Crump, 369 So.2d 1094 (La.App. 1st Cir. 1979).

Costs are to be paid by plaintiff.

AFFIRMED.

      . The trial judge, undoubtedly through inadvertence, stated the plaintiff was admitted to the Baton Rouge General Hospital. He was, in fact, admitted to Our Lady of the Lake Hospital. The difference is immaterial,

      . For an interpretative analysis of La.R.S. 9:2794, see Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978).


text:
    Henry W. THOMPSON, Jr. v. GREAT MIDWEST FUR COMPANY et al.
    No. 13887.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      John Burgess, Livingston, for plaintiff.
    Haydn Berey, Livingston, A. Wayne Stewart, Denham Springs, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This is a suit for specific performance of a contract of sale. Defendants Great Midwest Fur Company and Larry Carroll appeal a judgment rendered against them in solido in the amount of $11,940.00 plus legal interest. The issues presented are whether or not the defendants are subject to the personal jurisdiction of the Louisiana courts and whether or not the plaintiff proved the relationship of principal and agent existed between Great Midwest and Larry Carroll.

Because the facts of the case are so crucial to our review it is necessary to present them in some detail. In March 1978, defendant Larry Carroll attended a fur auction in or near Livingston Parish, Louisiana. Shortly thereafter, on March 8, 1978, Carroll met with a local fur buyer, plaintiff Henry Thompson. Carroll introduced himself as a buyer and a grader for the Great Midwest Fur Company of Kirkland, Illinois. He presented a business card bearing Great Midwest’s name and telephone number. The president of the company’s name was printed on the card and Carroll’s name had been added in his own handwriting.

Carroll and Thompson negotiated a deal at Thompson’s house. Carroll informed Thompson Great Midwest was interested in buying up to 10,000 raccoon furs from the area. The men agreed Thompson would initially provide Carroll with 2,000 furs. Carroll was familiar with the fur in the area because he had graded fur at the recent auction. The men agreed on a price and Thompson sold Carroll several samples to show to his boss, David Smith, President of Great Midwest. They agreed Thompson was to proceed to buy the furs from the local trappers.

Several days later Thompson phoned Great Midwest and spoke to Carroll and David Smith. Thompson informed the men he had obtained 1700 raccoon skins and 20 opossum skins. The original price for the skins was reaffirmed in the phone conversation. David Smith instructed Thompson to take the furs to West Memphis, Arkansas where he was to meet Larry Carroll. The men met in Arkansas on March 12, 1978. Carroll inspected and counted the furs and after several phone calls to David Smith, wrote a check to Henry Thompson for $11,-940.00. The check was written on the account of “Larry Carroll, Buyer for Great Midwest Fur Co.”

On March 14, 1978, Larry Carroll returned to Louisiana to negotiate further with Thompson for additional raccoon skins. Carroll informed Thompson he had ordered a stop payment of the $11,940 check. Thompson went to Livingston State Bank at Albany where banker, Glen Stevens, called the drawee bank in Illinois and confirmed a stop payment order had been issued. Larry Carroll did not testify at trial but information solicited from David Smith revealed Smith had promised to pay Carroll a certain price for the furs if they were of the quality described by Carroll. When Smith examined the furs he found the quality to be poor and informed Carroll he would pay him only $6,200 for the skins. Carroll then ordered payment be stopped on the check he had written to Thompson,

The record shows Carroll and Thompson then met with Thompson’s attorney to attempt to remedy the situation. They placed a conference phone call to David Smith and to Mr. Burley Marler, a fur expert. Smith informed Thompson the furs had already been scraped and sold to a man in New York but that he would gladly arrange for the furs to be shipped back to Thompson. Marlar advised Thompson not to accept the furs because they had been altered by the scraping and it would be impossible for Thompson to identify the furs as his own. Thompson therefore refused to accept the furs and subsequently filed suit for specific performance.

The first issue raised by appellants is whether or not they are subject to the personal jurisdiction of the Louisiana courts. Appellants argue the sale was finalized in Arkansas therefore Louisiana has no jurisdiction. This argument reflects a misunderstanding of the concept of in per-sonam jurisdiction. Personal jurisdiction is based upon sufficient minimal contacts within a state. When a person has had sufficient dealings in a state it is considered fair to require that person to appear in the state’s courts. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Standard Fittings Co. v. SAPAG, S. A., 625 F.2d 630 (5th Cir. 1980).

Louisiana’s “long arm” statute, La.R.S. 13:3201, sets forth several circumstances which our legislature has deemed sufficient for this state to assert personal jurisdiction over a nonresident. The statute reads in part as follows:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(a) transacting any business in this state;”

The comments of the Louisiana State Law Institute immediately following the text of the statute indicate the term “transacting business” is to be given a broad interpretation. The comments state,'“It is intended to mean a single transaction of either interstate or intrastate business, and to be as broad as the phrase ‘engaged in a business activity’ of R.S. 13:3471(1).”

The question of applicability of the long arm statute is an issue of fact, the determination of which must rest upon the peculiar circumstance of each individual case. Aucoin v. Hanson, 207 So.2d 834 (La. App. 3d Cir. 1968). The facts of this case disclose Larry Carroll had sufficient minimal contacts and indeed had “transacted business” within the state of Louisiana so as to justify Louisiana’s exercise of personal jurisdiction. The contract seemed to be one with a suspensive condition, i. e., the right of view and trial, so that it was finalized when Carroll inspected the furs in Arkansas. Civil Code art. 2460. The fact that the contract was completed in Arkansas is immaterial because the record amply supports the conclusion that Mr. Carroll had transacted business in Louisiana prior to the finalization of the deal.

A careful examination of the record shows Carroll had several contacts in the state of Louisiana which culminated in the sale of the raccoon furs. He traveled to Louisiana for the purpose of buying raccoon skins for Great Midwest. He met Mr. Thompson in this state and negotiated the entire deal at Mr. Thompson’s house in Livingston Parish. Testimony by several witnesses at trial showed Mr. Carroll introduced himself to many local people in the fur industry and handed each of them his business card. He obviously was attempting to make contacts with fur dealers in the area for future business purposes.

Mr. Carroll attended the fur auction in Louisiana and graded furs there. Virtually every preliminary matter concerning the sale of the 1700 raccoon skins was discussed and settled in Louisiana. Although no money changed hands in this state, in order to give the term “transacting business” the broad meaning the legislature intended it to have, we must conclude Mr. Carroll’s negotiations amounted to transacting business in this state. If we were to require the contract be actually consummated in this state we would be allowing nonresidents to come to Louisiana and negotiate a business deal for weeks, months or years, yet so long as the final act was performed out of state, these persons would be free of the jurisdiction of our courts. Obviously this would be an undesirable result.

The purpose of the long arm statute is to extend personal jurisdiction of Louisiana courts over nonresidents to the full limits of due process, i. e., to any nonresident who has had “minimal contacts” in the state. The section must be liberally interpreted in favor of finding jurisdiction. Mayeux v. Hughes, 333 So.2d 273 (La.App. 1st Cir. 1976); Latham v. Ryan, 373 So.2d 242 (La.App. 3d Cir. 1979).

The facts of this case also disclose the activities of Great Midwest, both directly and through an apparent agency relationship, as hereafter discussed, were sufficient to bring it within the boundaries of Louisiana’s long arm statute and the principles of due process, and thus subject it to the jurisdiction of Louisiana courts. Standard Fittings Co. v. SAPAG, S. A., supra.

The second issue raised on appeal is whether or not plaintiff established the existence of an agency relationship between Larry Carroll and Great Midwest. We note at the outset the distinction between actual and apparent authority of an agent. Actual authority exists when the principal grants authority to the agent either by express or implied consent. Apparent authority arises when the principal acts in such a way that third persons are justified in assuming the agent has certain authority, even though the principal may not have granted the authority to the agent. The principal is then estopped to deny the existence of an agency relationship. 2A C.J.S. Agency § 146. Apparent authority is defined as follows:

“The expression ‘apparent authority,’ as well as its variant, ‘ostensible authority,’ has been defined as connoting that authority which a principal holds his agent out as possessing or permits him to exercise or to represent himself as possessing, under such circumstances as to estop the principal from denying its existence.” 2A CJS Agency § 157.

Apparent authority is not mentioned in our Civil Code but has been juris-prudentially recognized as agency by estop-pel. It arises when the principal, by his acts or conduct, has knowingly caused or permitted another to appear as his agent to the injury of third parties who have acted in good faith and with reasonable prudence. Alphonse Brenner Company Inc. v. Dickerson, 283 So.2d 849 (La.App. 2d Cir. 1973). The principal will be bound for the agent’s actions if the principal has acted in a manner so as to give an innocent third party the reasonable belief the agent has authority to act for the principal. AAA Tire & Export, Inc. v. Big Chief Truck, 385 So.2d 426 (La. App. 1st Cir. 1980).

We note initially it is not the actions taken by the alleged agent himself that create apparent authority. It is undisputed Mr. Carroll introduced himself as a buyer for Great Midwest, handed out Great Midwest business cards, and had his personal checks printed “Larry Carroll, Buyer for Great Midwest Fur Co.” Certainly these facts are important in that they justify Mr. Thompson’s belief that Carroll was an agent for Midwest. These indicia of an agency relationship make it entirely reasonable for Thompson to assume he was dealing not with Larry Carroll as an individual, but with Larry Carroll as an agent for a large fur company.

But these facts alone cannot create the appearance of an agency relationship. We must focus attention on the actions of the principal, through its president, David Smith, to determine if it should be estopped from denying the agency relationship between it and Carroll. We need not decide whether or not Carroll had the actual authority to act for Great Midwest because we find ample evidence in the record showing Smith acted to create the appearance of an agency and Great Midwest should therefore be estopped.

Testimony at trial showed Smith allowed Carroll to use the Great Midwest telephone as his business phone. Thompson testified he reached Carroll at Great Midwest on several occasions. Another local fur dealer, Charles Kraft, testified he too had called and talked to Carroll at the Great Midwest’s office. David Smith testified he allowed Carroll to use his telephone because Carroll did not have one of his own. Smith stated he and his secretaries took messages for Carroll. The fact Carroll could be reached at almost any time at Great Midwest certainly creates the appearance of a connexity between Carroll and Great Midwest.

David Smith testified Larry Carroll was a completely independent fur buyer who had no connection whatsoever to Great Midwest. Henry Thompson testified he had several phone conversations with Mr. Smith concerning the sale and Mr. Smith referred to Carroll as his buyer and his grader. Thompson stated Mr. Smith made the arrangements for Thompson to meet Carroll in West Memphis, Arkansas. When Thompson arrived in West Memphis he was unable to locate Carroll so he called Smith in Illinois. Smith promptly provided Thompson with Carroll’s room number at a local motel. Indeed, Mr. Smith was closely involved in the sale and one may reasonably ask why, if Mr. Carroll was simply an independent buyer with no connexity to Great Midwest.

When Thompson and Carroll met in Arkansas, Carroll counted and inspected the furs. He made several phone calls to Mr. Smith before completing the contract by writing the check to Thompson. Certainly this situation, of Carroll checking with Smith before finalizing the deal, created the impression Smith had the final word about the sale. The facts do not support Mr. Smith’s contention that he had no authority over Larry Carroll.

Further evidence of the appearance of an agency relationship is found in an incident which occurred after the stop payment order was issued. The record indicates after Thompson became aware of his dilemma concerning the check, Mr. Carroll may have been detained for a short while at the Livingston Parish Sheriffs office. Carroll telephoned Smith for help. Smith contacted the F.B.I. on Carroll’s behalf. He attempted to buy a tape recorder so he could follow the suggestion of the F.B.I. and obtain a statement from all parties involved. Smith had earlier offered to pay to have the skins shipped from New York to Louisiana in order to resolve the dispute. This intense concern and quick defense on Smith’s part certainly added to the appearance of an agency relationship between Great Midwest, acting through Smith, and Carroll.

Mr. Smith testified at trial Carroll’s trip to Louisiana was for the purpose of filling the order of one of Great Midwest’s brokers who was seeking a certain grade of raccoon skin. Carroll felt he could fill this order with skins from Louisiana. Therefore it cannot be said Carroll was simply buying skins on a speculative basis with hopes to sell them to some fur company. He was on a mission specifically for Great Midwest.

The plaintiff had issued a subpoena duces tecum directing David Smith to produce all cancelled check stubs from the accounts of Great Midwest and from his personal account. The subpoena requested these items dating from January 1977 to February 1980. Mr. Smith failed to produce any of his personal checks but did comply by providing some of the checks written on Great Midwest’s accounts. The checks which would have been written in the period of February 8,1978 to April 6,1978 (the period surrounding the fur sale which is the subject of this litigation) were conspicuously absent. The other checks revealed Great Midwest had paid Larry Carroll approximately $17,000 during the three year period. The checks were marked as to their purpose such as advance on furs, payment on furs, and supplies. This evidence is significant in that it reveals the regularity with which Great Midwest dealt with Larry Carroll. Even more significant is the fact that all checks written around March 1978, which would have reflected the existence of or lack of any contributions to the business venture to Louisiana, were not produced.

A third party is entitled to rely on the apparent authority of an agent until something occurs that would cause a reasonable man to inquire further into the circumstances. Radiofone v. Oxford Bldg. Services, etc., 347 So.2d 327 (La.App. 4th Cir. 1977). We find nothing in the foregoing facts that would indicate to Mr. Thompson that Carroll was not an agent for Great Midwest. Throughout the entire incident of the sale, Mr. Smith talked to Mr. Thompson and implied Mr. Carroll was acting on behalf of Great Midwest. There was ample opportunity for Smith to have denied any relationship or to have clearly explained the nature of the relationship. But because Smith continued to act as though he was in a supervisory position in relation to the sale, Thompson was justified in relying on the appearance of the agency relationship.

David Smith insisted at trial Larry Carroll was not his agent but was a completely independent buyer. He stated that when called about Carroll’s stop payment order he informed Mr. Thompson’s attorney he did not care what happened to Larry Carroll. He stated he informed Mr. Thompson in his initial phone call he could not deal directly with Mr. Thompson because Mr. Carroll had already initiated the dealings. He stated he freely handed out his business cards to his independent buyers for their own reference and that he was unaware Mr. Carroll used Great Midwest’s name on his personal checking account. He testified he had subsequently filed suit against Mr. Carroll for using the company’s name.

There is conflicting testimony as to the nature of the relationship between Mr. Smith and Mr. Carroll and as to Mr. Smith’s actions which allegedly created the appearance of an agency relationship. We find as a whole the evidence supports plaintiff’s argument that Mr. Smith acted in a way so as to create the appearance of an agency relationship, therefore he should be es-topped to deny the agency. As always, when two adverse parties give directly contradictory versions of facts, the trial court’s assessment of the credibility is given great weight. Givens v. Held, 371 So.2d 1189 (La.App. 1st Cir. 1979), writ refused 1979. The finding of the trial court will not be disturbed on appeal unless there is manifest error. Scott v. Kosbab, 368 So.2d 191 (La. App. 1st Cir. 1979); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), rehearing, denied 1979. We find no manifest error was committed, therefore we affirm the judgment of the trial court. Appellants are to pay all costs of these proceedings.

AFFIRMED.

      . La.R.S. 13:3471 deals with supplementary rules of service of process.

      . The record shows Carroll filed a reconven-tional demand against Thompson in connection with this incident but the demand was dismissed.