text:
    John Edward WILLIAMS, Plaintiff-Appellant, v. PICKETT FOOD SERVICE, INC., et al., Defendants-Appellees.
    No. 14951.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Donald R. Miller, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendants-appellees, Pickett Food Service, Inc. and Commercial Union Ins. Co.
    Before PRICE, HALL and SEXTON, JJ.
   HALL, Judge.

Plaintiff appeals from the judgment of the trial court sustaining defendant insurer’s exception of prematurity filed in response to plaintiff’s petition for workers’ compensation benefits. We amend the judgment to cast the defendant insurer for costs in the trial court and otherwise affirm.

Plaintiff suffered an on-the-job injury to his back on March 10,1981 and immediately reported his injury to his employer. Defendant, Commercial Union Insurance Company, first received notice of plaintiff’s claim on April 6,1981 and, on the following day, its adjuster wrote to plaintiff requesting additional information regarding his claim. The investigation was completed on May 11,1981 with the adjuster recommending payment of workers’ compensation benefits. The first benefit check, covering the period from March 10 through May 12, was issued on May 15 and was mailed to plaintiff on May 18. The second benefit check was issued May 19 and mailed May 20. However, due to a clerical error, both checks were mailed to the wrong post office box and were returned to the defendant’s office where the address was corrected and the checks sent to the proper post office box.

Plaintiff filed this suit on May 20. He received his first two benefit checks on May 25 and a third on May 28. Defendant filed an exception of prematurity alleging that plaintiff was receiving compensation benefits and had received benefits for the entire period of his disability. The trial court sustained the exception and dismissed plaintiff’s suit, finding that payment of benefits had begun before suit was filed although plaintiff did not receive the checks until after the filing of suit because of an unintentional error.

LSA-R.S. 23:1314 provides that an injured employee may avoid the employer’s exception of prematurity if he alleges in petition and is able to prove that, at the time suit is filed, compensation benefits are not being or have not been paid and that the employer has refused to pay the benefits to which the employee is entitled. If the employer denies the allegations the employee must show that the allegations have reasonable cause or foundation in fact or his suit is subject to dismissal. The court must determine whether the plaintiff’s allegations are “justified under the facts.” LSA-R.S. 23:1314.

The court in Patton v. Silvey Companies, 395 So.2d 722 (La. 1981) held that a court confronted with an employer’s exception of prematurity must determine not only whether the plaintiff is receiving compensation when the suit is filed but also whether the employer has unreasonably refused or failed to pay benefits.

In Jack v. Fidelity & Casualty Company of New York, 306 So.2d 806 (La. App. 3d Cir. 1975), the court stated:

“In determining whether a compensation suit is premature, inquiry must be made as to whether the employer or his insurer has been given reasonable time after receiving notice or actual knowledge of the accident and injury to investigate the matter and to commence payment of benefits. The question of what is a ‘reasonable’ time in which to complete the investigation and begin the payment of benefits must be determined from the peculiar facts of each case. Vidrine v. Argonaut—Southwest Insurance Company, 166 So.2d 287 (La. App. 3 Ci. 1964).”

In this case, the defendant insurer promptly began investigation of plaintiff’s claim upon receipt of notice of the accident and injury. Some time was required to investigate the claim because the initial information furnished defendant indicated that plaintiff’s injury resulted from a fight on the job. The investigation was completed in about one month and compensation checks were issued shortly thereafter. Whether this was a reasonable time for the investigation and processing of plaintiff’s claim is a question of fact which the trial court decided in favor of the defendant insurer. The trial court’s determination was not clearly wrong.

The trial court dismissed plaintiffs suit at his costs. Because of the peculiar facts of this case, we deem it more equitable to cast the defendant insurer for costs incurred in the trial court. Accordingly, pursuant to the authority granted this court by LSA-C.C.P. Art. 2164, the judgment of the trial court will be amended to assess the defendant insurer with the costs of the trial court.

For the reasons assigned, the judgment of the trial court sustaining defendant’s exception of prematurity is amended to cast defendant, Commercial Union Insurance Company, with costs incurred in the trial court and is otherwise affirmed. Costs of the appeal are assessed to plaintiff, John Edward Williams.

Amended and, as amended, affirmed.

      . LSA-R.S. 23:1314:
      “Unless in the verified petition above referred to it is alleged (where the petition is filed by the employee or his dependents) that the employee or the dependents is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which petitioner is entitled under the provisions of this Chapter, or that the employee has not been furnished the proper medical attention, or that the employee has not been furnished with copies of the reports of examination or examinations made by employer’s medical practitioners after written request therefor has been made under the provisions of this Chapter, the presentation or filing of such petition shall be premature and shall be dismissed; when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed; and the question of whether or not such allegations of nonpayment or of failure to render medical attention or failure to furnish medical reports is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved.” (Emphasis added)


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Frager FORD and Betty Ford, Plaintiffs-Appellants, v. PLAIN DEALING CHARCOAL COMPANY, INC., et al., Defendants-Appellees.
    No. 14952.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.

      Davis Law Office and Legal Clinic, Inc. by S.P. Davis, Shreveport, for plaintiffs-appellants.
    Cook, Yancey, King & Galloway by Herschel E. Richard, Jr., Shreveport, for defendants-appellees.
    Before PRICE, HALL and SEXTON, JJ.
   PRICE, Judge.

Plaintiffs, Frager Ford and his wife, filed this suit on September 2, 1981, against Plain Dealing Charcoal Company, Campfire Charcoal Company, Inc., Arkansas Charcoal Company, Inc., and Arrow Industries, Inc., for workmen’s compensation benefits for the death of their minor son, Michael Ford, who was killed on September 6, 1979, while helping his father load and unload a truckload of lumber slabs. A prior suit was instituted on September 5, 1980, against Campfire Charcoal Company, Inc., seeking the identical relief requested here. Plaintiffs dismissed with prejudice their suit against Campfire Charcoal after testimony at trial revealed that neither Frager Ford nor Michael Ford was an employee of Campfire. Plaintiffs filed a motion for new trial, alleging that newly discovered evidence showed Frager Ford was an employee of Campfire Charcoal, or of one of the named defendants in the instant suit. The motion was denied and was affirmed by this court in an unpublished opinion. Plaintiffs now allege the filing of the initial suit against Campfire interrupted prescription as to the present defendants because of the close business connection among Campfire and them. Exceptions of prescription were filed on behalf of all defendants, and an exception of res judicata was filed by Campfire Charcoal. The exceptions were sustained as to all defendants and plaintiffs appeal.

The transcript from the initial suit against Campfire was introduced into evidence on trial of the exceptions. In that proceeding, Earl Riley testified that he was the plant manager for Campfire, a Texas corporation domiciled in Jacksonville, Texas, and that he had the authority to hire for Plain Dealing Charcoal. He admitted that while present at the Plain Dealing plant, he hired Frager Ford to work for Plain Dealing on June 7, 1979. He further testified the truck driven by Ford was owned by Campfire and maintained by Plain Dealing. In its answer to interrogatories filed by plaintiffs in the instant suit, Plain Dealing admitted that Riley was working for them and was its agent for service of process when he was served with plaintiffs’ original petition against Campfire on September 5, 1980.

To support their contention of common ownership and management of the defendant corporations, plaintiffs introduced the articles of incorporation of these corporations. They show that two of the directors are common to all three corporations. There is no evidence that these directors own any stock in the corporation. In addition, the record reflects that the payroll checks of Plain Dealing employees are drawn on the account of Arkansas Charcoal, with the costs then charged back to Plain Dealing Charcoal. Plaintiffs also introduced Frager Ford’s W-2 forms for 1979-1980, which listed Campfire Charcoal as his employer.

The trial court, in sustaining the exceptions, relied on the rationale of the concurring opinion by Judge Hall in Clark v. McDonald’s System, Inc., 383 So.2d 61 (La. App. 2d Cir. 1980). In its denial of writs in Clark, the Supreme Court indicated its approval of the concurring opinion, 386 So.2d 95 (La. 1980). The concurring opinion summarized the jurisprudence on this issue and found there were three factors present in cases where prescription was found to be interrupted as to an unnamed defendant by the filing of suit against another party by mistake:

(1) Justifiable mistake as to the name and/or identity of the defendant;
(2) Allegations that state a cause of action against the unnamed defendant; and
(3) A close connection between the named and unnamed defendants such as to infer notice of the filing of suit to the unnamed defendant.

Plaintiffs contend that service of process of their petition against Campfire on Riley was sufficient to interrupt prescription as to Plain Dealing because of Riley’s relationship with the two corporations. They also contend that the suit against Campfire interrupted prescription as to the remaining defendant corporations because their common ownership and management and interchange of equipment and employees make them solidary obligors.

In the instant case, the trial court found there was no justifiable mistake by Frager Ford concerning his true employer because of an admission in his deposition that he was employed by Plain Dealing Charcoal. When the admission of Ford under cross-examination relied on by the trial court is weighed against all other evidence in the record, it is doubtful that he understood the significance of the question posed to him.

In light of the relationship of the defendant corporations, Frager Ford’s mistake in suing Campfire instead of Plain Dealing Charcoal, his actual employer, was justified. The articles of incorporation show that the corporations have common directors. Ford was hired by an employee of Campfire to work for Plain Dealing. Arkansas Charcoal Company was listed on his payroll checks, while his W-2 forms listed Campfire as his employer. Riley testified previously that Ford was driving a truck owned by Campfire. Despite Ford’s admission in his deposition, we find that the circumstances surrounding his hiring and the corporation’s payroll procedure would have caused confusion concerning who was Ford’s actual employer. Therefore, the trial court erred in finding there was no justifiable mistake by Ford.

Our study of the record shows that the two remaining factors listed in the concurring opinion in Clark, supra, are present in the instant case. Plaintiffs’ original petition against Campfire alleged a cause of action against Plain Dealing, the actual employer of Frager Ford. Riley was an employee of and agent for service of process for Plain Dealing when he was served with the original petition against Campfire. His previous employment with Campfire and the close connections between Campfire and Plain Dealing are sufficient evidence to conclude that the original filing of plaintiffs’ suit constituted notice to Plain Dealing.

Plaintiffs’ contention that solidary liability exists with respect to Arrow, Arkansas Charcoal, and Plain Dealing Charcoal is without merit. Plaintiffs’ dismissal with prejudice against Campfire in the first suit precludes them from seeking the identical relief here because of res judicata. See C.C. Art. 2286. Therefore, the decision of the trial court in sustaining the exceptions of prescription as to Arkansas Charcoal and Arrow Industries and the exception of res judicata as to Campfire Charcoal was correct.

For the reasons assigned, the judgment of the trial court granting the exception of prescription as to Plain Dealing Charcoal Company, Inc., is reversed and the exception is overruled. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to defendant, Plain Dealing Charcoal Company, Inc.


text:
    CREDIT ALLIANCE CORPORATION, Plaintiff-Appellee, v. James M. RABB, et al., Defendants-Appellants.
    No. 14953.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Rehearing Denied Sept. 24, 1982.
    Writ Denied Nov. 19, 1982.
    Kostelka, Swearingen & Street by C. Daniel Street, Monroe, for defendant-appellant, James M. Rabb.
    Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for plaintiff-appellee, Credit Alliance Corp.
    Dennis W. Hennen, Monroe, for F & H Equipment Co., Inc., J. T. Harrison, Jr., Crown Equipment Co., Inc., Acoustics, Inc., Crown Equipment Co. of Monroe, Inc., Crown Equipment Co. of Alexandria, Inc., J. Tom Harrison Co., Inc., and R. E. Harrison — defendants-appellees.
    Before PRICE, FRED W. JONES, Jr. and SEXTON, JJ.
   PRICE, Judge.

This is an appeal from a judgment dissolving a writ of sequestration with an award of damages and attorney fees. Defendant, James H. Rabb, appeals from the judgment seeking an increase in the amounts awarded as well as damages for mental anguish. Plaintiff, Credit Alliance Corporation, answered the appeal alleging that the trial court erred in dissolving the writ of sequestration and in awarding attorney fees and damages to the defendant. We reverse the decision of the trial court for the following reasons.

In its petition, plaintiff alleged that James Rabb and various other defendants had defaulted in payment of a promissory note. Plaintiff sought a writ of sequestration to seize five tractor/dozers upon which plaintiff enjoyed a privilege and mortgage as security for the note. In the affidavit accompanying the petition, it was alleged by plaintiff that it was in the power of defendant to conceal, dispose of, or waste the aforesaid property, or the revenues therefrom, or remove the equipment from the Parish during the pendency of the suit. A writ of sequestration was issued on July 21, 1981, and the equipment was subsequently seized.

On November 23, 1981, defendant filed a motion to dissolve the writ of sequestration and sought damages and attorney fees.

The hearing on defendant’s motion was held on December 15,1981. The trial court dissolved the writ of sequestration holding that the allegations contained in the affidavit were insufficient.

The court found that the allegation of the supporting affidavit, merely tracking the language of La. C.C.P. Art. 3571, was a legal conclusion and would require specific factual allegations to support it. The trial court awarded moderate damages in the amount of $500 for loss of rental proceeds finding that defendant did not mitigate his damages by failing to move to dissolve the sequestration for a period of four months after the equipment was seized. Further, the court found defendant’s evidence on alleged losses of rental proceeds to be vague and general. The issues before this court on appeal are:

(1) Whether the trial court erred in dissolving the writ of sequestration;
(2) If not, whether the trial court erred in awarding inadequate damages and attorney fees and in failing to make an award for mental anguish, anxiety, inconvenience, and embarrassment suffered by defendant as a result of the seizure.

La. C.C.P. Art. 3571 provides the following grounds for sequestration:

(w)hen one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.

La. C.C.P. Art. 3501 provides that a writ of sequestration shall issue only:

... when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent ....

La. C.C.P. Art. 3506 provides in pertinent part that:

(t)he defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued....

In reaching its conclusion that the plaintiff’s pleadings lacked specific factual grounds to support issuance of a writ of sequestration, the trial court relied on Yorkwood Savings and Loan Association v. Thomas, 379 So.2d 798 (La. App. 4th Cir. 1980); Wright v. Hughes, 254 So.2d 293 (La. App. 4th Cir. 1971); and Menard v. Pinson, 360 So.2d 256 (La. App. 4th Cir. 1978). In affirming a judgment dissolving a writ of sequestration seizing a mobile home, the Fourth Circuit in Yorkwood held that the petition contained only a conclusory allegation of plaintiff’s grounds and failed to show specific facts constituting these grounds as required by La. C.C.P. Art. 3501.

However, the Third Circuit in Montagne v. Tinker, 197 So.2d 154 (La. App. 3d Cir. 1967), writ refused 250 La. 916, 199 So.2d 921, held that allegations of a lease, past due rental, and a lessor’s privilege over the lessee’s movable property on the leased premises were sufficient to support issuance of a writ of sequestration even though the language of La. C.C.P. Art. 3571 was not expressly used. The court found that the facts that the items were movable, belonged to the lessee, and were located on the leased premises gave rise to the conclusion that it was within the power of the lessee to conceal, dispose of, or remove the property.

La. C.C.P. Art. 3571 does not require a showing that the defendant would conceal, dispose of, or remove the property, but rather that it is only within the power of defendant to do so during the pendency of the suit. Ford Motor Co. v. Breaux, 406 So.2d 313 (La. App. 3d Cir. 1981). Further, plaintiff should be entitled to an evidentia-ry hearing under La. C.C.P. Art. 3506 in order to meet its statutory burden of proof before defendant may obtain a dissolution of the writ of sequestration. Pelican Homestead & Sav. Ass’n v. Wolcott, 405 So.2d 1247 (La. App. 1st Cir. 1981).

In the instant case, the petition contained allegations of a promissory note, a default by defendant in payment of the note, and a mortgage and privilege over certain movable property owned by defendant, Rabb. These specific facts contained in the petition, affidavit, and supporting documents are sufficient to support the proper issuance of a writ of sequestration. No further allegations are necessary to comply with La. C.C.P. Art. 3501. Clearly, the very nature of movable property would afford a defendant an opportunity to conceal, dispose of, or waste the property, or the revenues therefrom, or remove the property from the parish during the pend-ency of the suit.

For these reasons, it is the opinion of this court that the trial court erred in dissolving the writ of sequestration on the grounds that the pleadings failed to comply with La. C.C.P. Art. 3501 without allowing plaintiff an opportunity to discharge its burden of proof under La. C.C.P. Art. 3506 at the hearing on defendant’s motion to dissolve the writ of sequestration. This court chooses not to follow Yorkwood Savings and Loan Association v. Thomas, supra, to the extent that decision is in variance with this opinion on the question of plaintiff’s compliance with La. C.C.P. Art. 3501.

Because we have found the writ of sequestration should not have been dissolved, the other issues presented on appeal need not be considered.

For these reasons, the judgment is reversed and the writ of sequestration originally ordered and subsequently dissolved by the trial court is ordered reinstated and the case remanded to the district court for further proceedings consistent with the views expressed herein and in accordance with law. Cost of this appeal is assessed to defendant, James H. Rabb.

Assessment of all other costs are to await final disposition hereof.


author: SEXTON, Judge.

text:
    Susan E. BRAXTON, as Provisional Tutrix of the Minor Children, Brandy Elizabeth Braxton and Floyd Eugene Braxton, II, Plaintiff-Appellant, v. GEORGIA-PACIFIC CORPORATION, et al., Defendant-Appellee.
    No. 14955.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Rehearing Denied Sept. 24, 1982.

      Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendant-appel-lee.
    Before PRICE, HALL and SEXTON, JJ.
   SEXTON, Judge.

This is a wrongful death action for fatal injuries incurred by Floyd Eugene Braxton as a result of an industrial accident. Plaintiff, Susan E. Braxton, filed the action as provisional tutrix on behalf of decedent’s minor children, Brandy Elizabeth Braxton and Floyd Eugene Braxton, II. The original defendants named in the suit were decedent’s employer, Georgia-Pacific Corporation, various employees of the corporation, Southwestern Electric Power Company, and Walter Kidde Company, Inc., manufacturer of the Grove hydraulic crane.

Georgia-Pacific Corporation, the corporation employees, and Southwestern Electric Power Company were subsequently dismissed from the litigation. Walter Kidde Company, Inc., was the only defendant remaining at trial.

After a trial on the merits, the district court in its written opinion found that plaintiff failed to establish negligence or fault on the part of the defendant. Plaintiff appeals from the judgment rendered in favor of defendant, Walter Kidde Company, Inc. We affirm the judgment of the trial court for the following reasons.

On November 7, 1977, Floyd Eugene Braxton was employed as a “rod-buster” by Georgia-Pacific Corporation at its plant near Logansport, Louisiana. At approximately 7:15 a.m., Braxton and a co-worker, Steve Hughes, were assisting another coworker, Pete Ware, in moving a bundle of steel rebars from one area of the construction site to another. Pete Ware was operating a Grove RT62-50 mobile crane manufactured by the defendant, Walter Kidde Company, Inc. The boom of the crane was extended and the load line was tied to the bundle of rebars. While the crane was in motion, Braxton and Hughes were walking on the ground holding onto the steel rebars to guide and balance the load. As the crane proceeded along the service road, either the load line or the boom of the crane came in contact with a high voltage energized electrical line. Upon contact with the line, the rebars became energized electrocuting Braxton.

At trial, plaintiff alleged that the crane was unreasonably dangerous due to the failure of defendant to incorporate three safety devices — a boom shield, an insulated link and a proximity warning device — in the design and manufacture of the crane. Plaintiff further alleged that the defendant was negligent for failing to advise Georgia-Pacific Corporation of the availability of these safety devices for inclusion on the crane. Plaintiff also contended that defendant was negligent in failing to provide adequate warnings of the known serious danger of potential contact between the crane boom and overhead energized powerlines. Defendant contended that the crane was not unreasonably dangerous in normal use without the safety devices since the devices are unreliable; because of the unreliability of these devices, defendant was not negligent in failing to inform purchasers of their availability. Finally, defendant asserted that adequate warnings were made even though the danger was obvious.

On appeal, the following issues are presented:

(1) Whether the Grove mobile crane was unreasonably dangerous for normal use due to the failure of defendant to incorporate the safety devices in the design and manufacture of the crane;
(2) Whether defendant was negligent in failing to advise Georgia-Pacific Corporation of the availability of the safety devices; and
(3) Whether defendant was negligent in failing to provide adequate warnings of the known serious dangers of potential contact between the crane boom and overhead energized power-lines.
It is well settled that:
“A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.”

Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754, 755 (1971). See also Foster v. Marshall, 341 So.2d 1354 (La.App. 2d Cir. 1977); DeBattista v. Argonaut-Southwest Insurance Company, 403 So.2d 26 (La.1981); Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981); and Byrd v. Hunt Tool Shipyards, Inc., 650 F.2d 44 (5th Cir. 1981).

“If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.” Weber, supra, 250 So.2d at p. 756.

An unusual occurrence alone should not be proof of a defect in the product. See Canty v. Terrebonne Parish Police Jury, 397 So.2d 1370 (La.App. 1st Cir. 1981). Rather the general rule is that:

“A product is unreasonably dangerous when it is dangerous to an extent beyond that which would be contemplated by an ordinary consumer or user.”

Hebert v. Brazzell, 403 So.2d 1242, 1245 (La.1981) and citations therein.

Plaintiff contends that the crane was unreasonably dangerous without the inclusion of the safety devices. The safety devices are known as a boom shield, insulated link, and proximity warning device.

The-boom shield is designed to prevent contact between the boom of the crane and an energized powerline by acting as a insulator. The boom shield is a metal framework attached to the very end of the boom with insulated connectors to insulate the shield from the boom. The boom shield is limited in that it only covers approximately fifteen feet of the boom. Upon contact of the upper end of the boom with a power-line, the boom cage acts as a buffer to prevent the boom from becoming energized. The evidence established that boom shields are primarily used for lattice boom cranes rather than for hydraulic cranes, such as existed in this case.

The insulating link acts as a hooking device at the point at which the load is attached to the cable. The links come in various sizes and capacities depending upon the type of load and electrical voltage. A portion of the link is made with plastic or a non-conducting material which must be kept absolutely clean from contaminates. The device is designed to prevent the load from becoming energized if the load line or the boom contacts a powerline. However, the line would not prevent the load from becoming energized if it was touching the body of the crane.

A proximity warning device is similar to a radio receiver and is designed to give a warning when the crane is near an energized powerline. An antenna would be placed on the boom to detect the electromagnetic field emanating from a powerline and an alarm would sound when the crane was a certain distance from a powerline. The device requires considerable adjustment and calibration to make it effective. An alarm device could be situated on the outside of the crane so that workmen on the ground would be alerted.

Testifying for plaintiff was Robert Ne-well, a professor in electrical engineering at Louisiana Tech University for twenty-four years before retiring. Mr. Newell testified that the accident could have been avoided by equipping the crane with one or more of the safety devices. The witness was of the opinion that the proximity warning device and insulated link were reliable. However, Mr. Newell had never been involved in the testing of these devices nor had any contact with any of the evidence.

Also testifying for plaintiff was Mr. C.D. Attaway, a safety consultant since 1969. Mr. Attaway had limited experience with the proximity warning device and insulated link while employed at the Thiokol Chemical Corporation and has had little exposure to cranes since 1969. Mr. Attaway had never been involved in the design of any type of machinery or the testing of these safety devices. The witness was of the opinion that the insulated link and proximity warning device were effective enough to warrant their use on cranes.

Plaintiffs third expert witness was Dr. Paul Hale, Professor of Industrial Engineering and Coordinator at Louisiana Tech University. Dr. Hale was of the opinion that a crane would be unreasonably dangerous in normal use without the insulated link and proximity warning device. However, Dr. Hale had never had contact with any of the safety devices and his knowledge of the devices was obtained from reading various literature.

Defendant offered three expert witnesses. Mr. William Renner, Director of Products Safety and Reliability at Grove Manufacturing (a division of defendant Kidde Company) since 1970, testified that the cranes manufactured by defendant were not equipped with the devices as they were not reliable. Mr. Renner was personally involved in testing of a proximity warning device and concluded it was not sufficiently reliable to be incorporated in the design of the Grove crane. The device required considerable adjustments and failed to repeat the settings. For example, movement of the boom could upset the calibration and the alarm would fail to sound. Further, variables in the area of the powerline — such as a concrete truck driving into the vicinity — could interrupt the adjustment of the device. The cost of these devices did not influence the decision not to incorporate as it would be insignificant in comparison to the cost of the finished product. Mr. Ren-ner testified that to be incorporated in a Grove product, a device must be at least ninety percent effective. Mr. Renner felt that his company would do a disservice by placing the devices on the crane since their presence would impel the workers to depend on these devices for protection rather than sound judgment.

Defendant’s next expert witness was Mr. Bernard Enfield, a consulting engineer with Safety and Training Associates. Mr. En-field has had considerable experience in the construction field and has personally been involved in the testing of the safety devices. Mr. Enfield testified that it was difficult to maintain the insulated link at a construction site as it is easily contaminated by mud, water, or other conducting materials, and the plastic coating on the link may become chipped and scratched. Further, the link is not susceptible to inspection for structural integrity. As to the proximity warning device, Mr. Enfield testified that the devices did not possess the quality of sustained effectiveness or repeatability. Variables such as electrical storms or trucks would affect the electromagnetic field for which the antenna is tuned. Even movement of the boom or a change in the length of the boom would interrupt the electromagnetic field, thus necessitating readjustment. The witness was of the opinion that the devices should not be used on cranes and would actually make a crane less safe by fostering a false sense of security in the workmen.

Defendant’s third expert witness was Mr. Neal Smith, a professor of electrical engineering at Ohio State University since 1947. Mr. Smith had also been involved in the testing of these safety devices and testified that the devices were not sufficiently reliable for installation on the crane. Mr. Smith was also of the opinion that workers would develop a false sense of security if the devices were on the crane.

The testimony of the experts established that no pertinent safety regulations in the construction field required that the cranes be equipped with these safety devices as standard equipment. Further, the evidence was that currently no crane manufacturer incorporated these devices in their equipment.

The evidence is not conclusive that these devices could have prevented the accident as they are generally unreliable. Even if the devices had been on the crane and been in perfect working condition, the accident still may have occurred. If the bundle of rebars had been touching the body of the crane when it struck the powerline, the insulated link would not have prevented the load from becoming energized. Also, had the lower portion of the boom struck the powerline, the boom shield would not have prevented the boom from being energized.

In order to impose liability on the defendant, plaintiff must first prove that the product was defective. The trial judge held that plaintiff failed to meet this burden of proof.

It is well settled that the trial judge is not bound by expert testimony. Such testimony is to be weighed by the court the same as other evidence. The weight which is assigned to the testimony of an expert is ascertained by the qualifications and experience of the witness as well as the materials and circumstances upon which the expert’s opinion is grounded. Gleason v. City of Shreveport, 393 So.2d 827 (La.App. 2d Cir. 1981) and citations therein. See also Trichel v. Louisiana State Highway Dept., 402 So.2d 784 (La.App. 3d Cir. 1981).

It is apparent that the trial judge assigned more weight to the testimony of the defendant’s expert witnesses than to the testimony by plaintiff’s experts. Our review of the record does not reveal that the trial court committed manifest error in so doing.

Plaintiff alleges that defendant was negligent in failing to advise Georgia-Pacific Corporation, decedent’s employer, of the availability of the safety devices.

As established by the evidence, the safety devices were considered to be unsafe and unreliable by the defendant as well as other experts in the field. This court is unaware of an affirmative duty on the part of a manufacturer to inform purchasers and consumers of the availability of a safety device which it finds to be unreliable after considerable testing. The finding of the trial court in this regard is not manifestly erroneous.

Plaintiff contends that the defendant was negligent in failing to give adequate warnings of the serious danger of contact between the boom of the crane and an energized overhead powerline.

The courts have held that:

“A manufacturer must give warning of any danger inherent in his product’s normal use which is not within the knowledge of an ordinary user.”

Hebert, supra, at p. 1245, and numerous citations therein. See also Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La. 1978). This duty is limited in that it

“... goes only to those dangers which are not obvious. A manufacturer is not compelled to warn knowledgeable purchasers of the dangers of which the buyer either knows or should be aware.”

Foster, supra, at p. 1362, and citations therein. See also Byrd, supra.

The evidence at trial established that the crane did have a warning on the door of the crane alerting the operator to the hazard of electrocution. Although the warning is obscured when the door is latched open, there is no evidence as to whether the door was latched open or closed in the instant case. The Grove operators handbook, which by its own terms stipulates that it remain in the crane, contains several warnings as to the hazard of electrocution. The Grove service manual also contains similar warnings.

Further, the danger of electrocution upon contacting a powerline is an obvious danger of which the ordinary construction worker is aware or should know.

The trial court held that the defendant was not negligent in failing to give adequate warning. We agree.

For the reasons assigned, the judgment of the district court is affirmed at plaintiff’s costs.

AFFIRMED.


author: FRED W. JONES, Jr., Judge.

text:
    WHITLOCK REALTY AND CONSTRUCTION, INC., Plaintiff-Appellant, v. Virgil SPARKS, Defendant-Appellee.
    No. 14957.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.

      William H. Hallack, Jr. (A Professional Law Corp.) by William H. Hallack, Jr., Monroe, for plaintiff-appellant.
    James Sharp, Jr., Monroe, for defendant-appellee.
    Before PRICE, FRED W. JONES, Jr., and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff realty corporation appeals a judgment rejecting its demand for $12,000 allegedly due by defendant as a commission under a real estate brokerage contract. Appellant contends the trial judge erred in finding that an “exclusive right to sell” listing agreement was orally modified to permit a sale by the owner without any liability for payment of a commission to the realtor.

For the reasons hereinafter set forth, we affirm.

On November 4, 1980, plaintiff, Whitlock Realty & Construction, Inc., and defendant, Virgil Sparks, executed a real estate brokerage contract under which, for a term of one year, plaintiff was named “sole and exclusive agent to sell” certain immovable property for a listed price of $415,000, with the realtor’s commission fixed at 6% of the sale price. Defendant agreed to refer all prospective purchasers to plaintiff during the term of the contract.

Plaintiff immediately engaged in a concerted effort to find a buyer for the property — advertising in newspapers, mailing out the listing to some 50 other realtors, and contacting various individuals. Although a few inquiries were received, no bona fide offers for purchase of the property were made. After the lapse of several months, Gratia Whitlock, president of plaintiff corporation, suggested in a telephone conversation with defendant that a reduction in his asking price for the property might help to sell it. In response, defendant orally agreed to modify the listing agreement by reducing his price from $415,000 to $350,-000.

Despite this reduction in price, plaintiff was unable to secure prospective purchasers for the property. Consequently, in February 1981, defendant telephoned Mrs. Whit-lock and requested permission to sell the property himself. Defendant testified:

“Mrs. Whitlock explained to me that it was okay with her if I tried to seek a buyer. I didn’t have one at that particular time, that at the current interest rates today, she gave me permission to go ahead on and sell the property if I could.... I asked Mrs. Whitlock would there be anything about money and she said, ‘no, if I sold the property’.”

Mrs. Whitlock conceded that she gave defendant permission to sell his property directly, but denied waiving her right to the realtor’s commission. She further asserted that she continued in her efforts to find a buyer.

Be that as it may, through his efforts alone defendant was able to secure a buyer for the property and on March 12,1981 sold it for a total consideration of $190,000, payable as follows: $24,588.32 in cash; the assumption by the vendee of an SBA loan balance of $155,411.68; and the cancellation by the vendee of a $10,000 indebtedness due by the vendor on a promissory note.

When Mrs. Whitlock learned of the sale, she made demand upon defendant for payment of the realtor’s commission. Her demand was rejected and this litigation ensued.

In his written reasons for judgment, the trial judge found that there was no express waiver of its commission by plaintiff. However, he concluded that plaintiff failed to prove its entitlement to a commission under the listing agreement inasmuch as the sale was neither negotiated by plaintiff nor made as a result of plaintiff’s efforts.

Although a listing agreement or real estate brokerage contract may appear to give a broker authority to sell property, our jurisprudence has generally classified this as an employment contract rather than a contract of mandate. Leggio v. Realty Mart, Inc., 303 So.2d 920 (La. App. 1st Cir. 1974).

These listing agreements routinely follow one of three basic forms: open listing, exclusive agency, or exclusive right to sell. In an open listing agreement, the broker is given an opportunity to find a purchaser, but the employer retains the right to sell his property directly or through another broker. The property owner, under an exclusive agency listing, employs only one broker who is entitled to compensation if the property is sold by anyone, except the owner himself, during the term of the agreement. However, where the listing agreement is confected as an exclusive right to sell, the broker is presumed to be the procuring cause of the transaction and entitled to compensation if the property is sold by anyone, including the owner, during the contract term. See Comment, “The Law of Real Estate Brokerage Contracts; The Broker’s Commission,” 41 La. L.R. 857 (1981); Burr v. Lequin, 365 So.2d 1156 (La. App. 3rd Cir. 1978); Trapani v. Katz, 198 So.2d 423 (La. App. 4th Cir. 1967); Acadian Inv. Co. v. Laird, 138 So.2d 429 (La. App. 3rd Cir. 1962).

It is well settled in this state that, since the listing agreement or real estate brokerage contract is an employment contract, it need not be in writing. Furthermore, even if the original contract is reduced to writing, it may be subsequently orally modified. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La. 1977); Naquin & Associates, Inc. v. Portage Plantation, Inc., 372 So.2d 821 (La. App. 3rd Cir. 1979); Young v. Smith, 366 So.2d 982 (La. App. 1st Cir. 1978).

The language of the listing agreement under consideration leaves no question but that it was intended by the parties to be an exclusive right to sell real estate brokerage contract. As we have explained, under this particular kind of listing agreement the broker is deemed to be the procuring cause of a sale and entitled to the stipulated commission regardless of the identity of the party who was the actual procuring cause of the transaction, even if the party was the owner himself. Therefore, unless this contract was modified, plaintiff is entitled to the 6% commission computed upon the sale price of the property, despite the fact that defendant was the actual procuring cause of the sale.

Our review of the record in this case leads to the conclusion that this written listing agreement was orally modified on two occasions after its execution. First, during the course of a telephone conversation, defendant agreed to reduce the asking price for the property from $415,000 to $350,000. Second, Mrs. Whitlock candidly admitted that she verbally consented to allow defendant to sell the property himself. Obviously, the parties understood that the defendant was precluded from exercising this privilege by the terms of the written contract. We find that the legal effect of this last modification was to convert the exclusive right to sell listing agreement to an exclusive agency — since clearly the realtor had relinquished the exclusive right to find a purchaser for the property. Consequently, plaintiff broker no longer enjoyed the presumption that it was the procuring cause of a sale transaction, regardless of the actual procurer.

Since this sale was made by the employer, plaintiff could recover its commission only by proving that it was the procuring cause of the transaction. Lambert v. Brucker, 330 So.2d 640 (La. App. 4th Cir. 1976); Pumilia v. Dileo, 169 So.2d 581 (La. App. 4th Cir. 1964); Oldham v. Jones, 136 So.2d 310 (La. App. 2d Cir. 1961). Plaintiff does not even purport to make this claim, since Mrs. Whitlock frankly admitted that defendant was solely responsible for securing the buyer for the property. Therefore, the trial judge correctly held that plaintiff failed to prove its entitlement to the realtor’s commission.

For these reasons, we affirm the judgment of the district court, at appellant’s cost.

      . The record reveals that the property was actually owned by Sparks Enterprises, Inc., a family corporation of which defendant was president and principal stockholder. However, in view of the basis upon which we dispose of this appeal, we do not reach the question of defendant’s liability for payment of a commission for sale of property which he did not own.


author: MARVIN, Judge.

text:
    Dewanna ABRAUGH, Plaintiff-Appellant, v. N.L. MONCRIEF, Jr. and Moncrief, Inc., Defendants-Appellees.
    No. 14969.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Patrick H. Wright, Jr., Monroe, for plaintiff-appellant.
    Billye L. Adams, Monroe, for defendants-appellees.
    Before MARVIN, SEXTON and NORRIS, JJ.
   MARVIN, Judge.

In this action against a corporate landlord and its principal owner, the plaintiff tenant appeals a judgment dismissing, on an exception of venue, the tenant’s demands to recover her $100 rental deposit, plus damages and attorney fees under R.S. 9:3252, 3253. We affirm the judgment.

The apartment that was rented by the tenant is in West Monroe, whose city court jurisdiction extends through Ward 5 of Ouachita Parish. The defendants are residents of Monroe, which is not in Ward 5 of Ouachita Parish. Plaintiff did not allege or show that defendants resided in Ward 5.

R.S. 9:3251 requires the landlord to return within 30 days after the lease terminates, the deposit made by the tenant or an itemized accounting of and reasons that an amount of the deposit is retained by the landlord. If the landlord willfully fails to make this return, the tenant is given by the statute, the right to recover “damages” and “costs and attorney fees”. §§ 3252, 3253.

Plaintiff contends that her action for the return of the deposit and for damages under the statute is an ex delicto tort action, the venue of which is proper in the territorial jurisdiction of the leased premises and where the refusal to return the deposit was made. CCP 74, 4853 B.

Plaintiff alleged she agreed to pay a $100 “deposit” and pay $140 per month and to sign “the six-month written lease” suggested by defendant’s apartment manager. The written lease was never presented to plaintiff for signing and plaintiff lived in defendant’s apartments for three months, vacating her last apartment and returning the keys on December 1, 1981, after giving timely written notice to the apartment manager of her intent to vacate. Plaintiff also alleged that she requested the apartment manager on December 1 to return her deposit and that through her attorney she made a similar written demand on N.L. Moncrief on December 10, 1981, which was refused by the corporate defendant on and after December 15, 1981.

Plaintiff has not alleged or shown that any tortious conduct of an agent or employee of the alleged corporate landlord occurred in Ward 5 of Ouachita Parish, even should we assume arguendo that the statutory “willful failure to comply” would be deemed to be an intentional tort. She has not alleged or shown that she sustained “damages” in Ward 5 of Ouachita Parish.

C & M Properties, Inc. v. Wascom, 361 So.2d 1266 (La. App. 1st Cir. 1978), which plaintiff cited to the lower court, expressly stated that in order to take advantage of CCP 74 exception to the general rules of venue under CCP 42, a plaintiff must state a cause of action for an offense or quasi offense such as the negligent maintenance of leased premises as was present in Richardson v. Moore, 304 So.2d 425 (La. App. 1st Cir. 1973). CCP 74 is an exception to the general rules of venue and is strictly construed. Richardson, supra; Dupre v. Pelotto, 336 So.2d 329 (La. App. 1st Cir. 1976). Under the circumstances of this record, plaintiff has not alleged or shown any facts that would support application of the CCP 74 exception to establish that the West Monroe City Court is a court of proper venue.

Plaintiff declined the offer of the lower court to transfer her action to the Monroe City Court or to the District Court of Oua-chita Parish. Under these circumstances, and at plaintiff’s cost, the judgment dismissing her action is AFFIRMED.

      . R.S. 9:3252 reads:
      “The willful failure to comply with R.S. 9:3251 shall give the tenant or lessee the right to recover actual damages or two hundred dollars, whichever is greater, from the landlord or lessor, or from the lessor’s successor in interest. Failure to remit within thirty days after written demand for a refund shall constitute willful failure.


author: NORRIS, Judge.

text:
    SOUTHWESTERN ELECTRIC POWER COMPANY, Plaintiff-Appellant, v. William B. PARKER, III, et al., Defendants-Appellees.
    No. 14990.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Rehearing Denied Sept. 24, 1982.

      Wilkinson & Carmody By John S. Odom, Jr., Shreveport, for plaintiff-appellant.
    R. Clyde Lawton, Jr., Vivian, for defendants-appellees.
    Before NORRIS, HALL and MARVIN, JJ.
   NORRIS, Judge.

This matter arises out of an application for writs and an appeal in an action for injunctive relief filed by Southwestern Electric Power Company (SWEPCO) against William B. Parker, III, a landowner, J. P. Boyter, and Boyter Brothers Drillers, his drilling contractors.

On May 7, 1982, we granted writs while an appeal was pending and issued this stay order:

IT IS ORDERED that a stay order be and it is hereby issued by this Court directed to defendant, William B. Parker, III, restraining and prohibiting him from taking any further steps in accordance with the judgment of April 28, 1982, except for the continued production of oil from that well which is located approximately 47 feet West of the 69,000 volt transmission line in the SWEPCO right of way across Parker’s property; more specifically restraining and prohibiting Parker from completing the well that is located approximately 38 feet East of the SWEPCO 69,000 volt transmission line on his property and prohibiting any type of workover operations on either of the two wells located within the right of way. This stay order shall remain in force and effect pending a decision on the writ and/or appeal and/or further order of this Court.

This appeal is from a judgment which ordered only a “conditional” preliminary injunction. We consider the writ and the appeal in this opinion and delete the conditions that dilute the efficacy of the injunction.

SWEPCO sought to enjoin defendants from continuing drilling activities within SWEPCO’s one hundred foot right of way across Parker’s property.

The agreement by Parker’s ancestors in title granted a one hundred foot right of way for electrical transmission and distribution purposes and granted unto SWEPCO certain additional rights. This provision of the agreement is pertinent:

Together with the right of ingress and egress over (my) our adjacent lands to or from said right of way for the purpose of constructing, reconstructing, inspecting, patroling, hanging new wires on, maintaining and removing said line and appurtenances; the right to relocate along the same general direction of said lines; the right to remove from said lands all trees and parts thereof, or other obstructions, which endanger or may interfere with the efficiency of said lines or its appurtenances; and the right of exercising all other rights hereby granted. [Emphasis added.]

A 69,000 volt line was constructed in the center of the right of way to transmit electricity in North Caddo Parish.

Parker purchased the property subject to SWEPCO’s right of way for the purpose of drilling for oil in the Nakotash formation, which is productive at approximately 1000 feet. J. P. Boyter and Boyter Brothers drillers began drilling operations for Parker on the right of way about seventeen feet from the power line near the center of the right of way with a ninety foot drilling rig. After SWEPCO protested, Parker agreed to move the drilling rig. Defendants then indicated that they would drill at a location which SWEPCO considered to be outside of the right of way. SWEPCO determined that the changed drill site was within its right of way. Defendants declined SWEP-CO’s request to again move the drill site and drilled two wells, both of which were found by the trial court to be within the right of way. One well was thirty-eight feet and the other was forty-seven feet from the power line.

When Parker announced his intent to continue to drill wells on the right of way, SWEPCO sued and obtained a temporary restraining order pending the hearing on the rule for a preliminary injunction. After the hearing on this rule, the trial court preliminarily enjoined further drilling operations within the right of way and issued a “conditional injunction,” which would allow Parker to complete the two wells he had already drilled on the right of way, subject to certain illustrative guidelines imposed by the court. The parties do not complain of the preliminary injunction, and this appeal is limited to the propriety of the “conditional injunction,” which reads:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the rule issued herein to defendants seeking a preliminary injunction restraining them from completing any wells presently drilled upon said right-of-way be now recalled and set aside and that a conditional injunction issue herein allowing Parker to complete the two wells presently in existence provided he follows at least the following innumerated non-exclusive conditions which are illustrative only and direct the defendant to conduct his operations in accordance with the highest standards in the industry and to cooperate with plaintiff SWEPCO in the completion and production of the two wells:
Defendant Parker shall construct a proper road or roads to the wells which will support the heavy equipment which will be necessary to complete and service the wells. SWEPCO shall also be entitled to use this road or roads for access to the right-of-way to perform its own maintenance operations. The area around the wells must be cleared and leveled so as to minimize any hazard which may result from the placing of the equipment at the well sites, particularly during completion and workover operations. Additionally, no oil storage tanks shall be located on the right-of-way and a proper underground pipeline system must be constructed to convey oil from the pumping units to the storage tanks. Further, whenever completion or work-over operations are contemplated, at least seven (7) days’ written notice thereof must be given to SWEPCO by defendant Parker so that SWEPCO officials can coordinate their activities with that of the land owner and completion and workover crews to insure that no hazard exists or is created and to insure that the completion or workover operations do not interfere with the activities of SWEPCO. In the event emergency work on the producing wells is necessary, SWEPCO officials must be notified immediately prior to the commencement of any such operations.

Immediately after the trial court’s opinion was filed on April 7, 1982, Parker informed SWEPCO that he considered one of the wells in question to be outside of the right of way and not subject to the notice requirements of the “conditional injunction.” The trial court had found that both wells were within the right of way. Parker then completed that well and placed that well into production on April 12, 1982. SWEPCO then filed a rule for contempt and obtained another temporary restraining order to prevent Parker from completing the second well. At the hearing on that rule, the trial court clarified its earlier ruling regarding the “conditional injunction” to include completion operations as well as workover operations.

SWEPCO- appeals and assigns these errors:

(1) Admitting into evidence and considering defense exhibits 1-12 and 14-39, the photographs of the 69KV line as it followed the street right of way in Vivian, or the right of way of Louisiana Highway 1 South into Oil City, Louisiana; (2) issuing a conditional injunction allowing defendant Parker to complete or work over the Parker B-l and B-2 wells under the conditions enumerated in its opinion; and (3) burdening SWEPCO with any responsibility for coordinating or monitoring the completion or workover of Parker’s wells located within SWEPCO’s right of way.

In summary, we conclude that the trial court found that SWEPCO’s right of way agreement included the right to remove obstructions which might endanger or interfere with the efficiency of the lines or their appurtenances. The court found that SWEPCO met this burden of showing interference. These findings are supported by the record.

The trial court additionally found that it may be possible to devise a plan whereby the drilling operations could be conducted on the right of way without interference. The two wells already drilled were capable of production simply upon the installation of pumping units. The trial court found that these wells would not inconvenience or interfere with the efficient distribution of electricity to the extent that their completion and any production should be enjoined. Finally, the trial court concluded that with the cooperation of the parties these wells could and should be produced. We must respectfully disagree and conclude that the trial court was manifestly erroneous in conditioning its injunction. Accordingly, we reverse that portion of the judgment.

We agree that the language in the right of way agreement is consistent with the applicable provision of La.C.C. Article 748 as well as Articles 730 and 743. In part these articles provide:

The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude. (Article 748)
Doubt as to the ... extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate. (Article 730)
Rights that are necessary for the use of the servitude are acquired at the time the servitude is established. They are to be exercised in a way least inconvenient for the servient estate. (Article 743)
If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of the relocation are borne by the owner of the servient estate. (Article 748)

This record reveals that Parker declined SWEPCO’s offer to remove the right of way at Parker’s expense.

While no Louisiana cases squarely answer to what extent drilling operations may be conducted within a power line right of way, some cases can by analogy, afford us guidance on the issue presented by this appeal.

In Louisiana Power and Light Co. v. Bennett, 107 So.2d 468 (La.App. 1st Cir. 1958), plaintiff sued to enjoin the completion of, and to require the removal of, a wooden structure within its right of way. The court stated:

This right-of-way gives the plaintiff the right to clear any obstructions that may be necessary for it to erect as well as maintain its power lines. It is the contention of the plaintiff that the building of the defendant will interfere with access to the right-of-way for the purpose of maintaining and repairing its transmission lines; that the building, as well as any additions thereto, is an extreme fire hazard; that in the event of a fire the power lines and equipment would be placed out of commission causing considerable expense and delay of restoration.
The defendant submits that plaintiff has no need for a 150 foot right-of-way; that the defendant’s use of the property in the manner complained of does not interfere with the rights granted the plaintiff under the right-of-way agreement; that the use of the property by the defendant creates no greater hazard than exists elsewhere along plaintiff’s transmission lines.
* * t- * * sk
As concluded by the lower court any real defense must be based on an interpretation of the terms of the right-of-way grant. The trial court concluded that the plaintiff proved by experts that the building sought to be removed will interfere with access to the right-of-way to repair and maintain the poles and lines of the plaintiff, and further, that the building constitutes a fire hazard.
The record clearly discloses the plaintiff proved that the defendant had' a building within its right-of-way, was adding to said building and that such building would interfere with the maintenance and repair of plaintiff’s electric power lines. Further that the building is a fire hazard and as such creates a menace to the use of easement and servitude for the purposes for which it was granted. Under the provisions of Article 777 of the LSA-Civil Code, supra, the defendant is committing acts which “diminish” the use of the servitude and “make it more inconvenient.”

Louisiana Power and Light Co. v. Roberts, 408 So.2d 49 (La.App. 3d Cir. 1981) held that a defendant’s plan to build a structure under a 13,000 volt electric line violated the terms of the servitude agreement. The right of way agreement there read and was analyzed as follows:

It is further understood and agreed that grantor reserves to itself full use of the rights of way herein granted or any part or parts of them for any purpose or purposes including, but not limited to, exploration thereon for oil or gas or minerals, ingress and egress to any other lands or roads, construction, use and maintenance of roads thereon, cultivation or fencing in any manner thereon, transportation of timber thereon, or any combination of uses provided that no drilling of wells or mining will be conducted thereon unless no other suitable location is available and provided further that grantor will not intentionally interfere with the exercise by grantee of any of the rights herein granted to it. (Emphasis ours)
The meaning of the language contained in Paragraph 6 of the servitude agreement as quoted above is clear. It simply provides that the grantor reserves unto itself such use of the servitude area as will not interfere with the exercise by grantee of the rights granted to it. Thus, the issue becomes whether or not the construction by defendants of a building within the servitude area, immediately beneath plaintiffs existing transmission line, will interfere, inconvenience or diminish the exercise by LP & L of the rights granted to it under the servitude agreement.
The trial court held that such construction would seriously interfere with LP & L’s rights under the servitude agreement. We fully agree with this conclusion.
iji sfc ¡fc s|s
The trial court’s conclusion is confirmed by the testimony of several experts presented by plaintiff. The record reflects that their testimony is uncontra-dicted. It is well settled that courts are bound to give proper credit and due weight to opinions and conclusions of experts especially when their testimony is unimpeached, uncontroverted and based on sound reasoning and on established facts. See Geismar v. General Gas Corp., 182 So.2d 769 (La.App. 1st Cir. 1966) writ denied [249 La. 259], 184 So.2d 733 (La. 1966). Alvin Calhoun, division land superintendent for LP & L, indicated at trial that the construction of the proposed building would obstruct LP & L’s use of their right of way, pose a fire hazard, and impair LP & L’s ability to properly maintain the electric transmission line. Calhoun also stated that the location of the building directly underneath the electric transmission line could endanger the occupants of the building should the line move or fall onto the structure. Clifford LaFleur, land and right of way superintendent for Central Louisiana Electric Company, Inc., and Dudley Bertrand, division engineer for LP & L, both corroborated Calhoun’s testimony. LaFleur and Bertrand both indicated that the building would constitute an obstruction to the continuity of service to customers as well as an obstruction to the maintenance and operation of the line. LaFleur stressed that the worst hazard is the possibility of fire and its resulting damage to the line. Additionally, V. L. Tolver, a LP & L serviceman, testified that the construction of the proposed building would impede access to the 13 K.V. electric transmission line in that servicemen could not get their equipment in such a position as to repair a break in the line.
We conclude from the evidence in the record that the construction by defendants of a building within plaintiff’s right of way, and particularly, underneath plaintiff’s existing 13 K.V. electric transmission line will constitute an obstruction to the use and maintenance of the line and will seriously interfere with LP & L’s right of passage over its right of way and its use of the right of way in general. Additionally, the threat of fire posed by construction of the building presents a substantial hazard which would cause further problems in the repair and maintenance of the line as well as result in undue delay in restoration of needed services. The trial court concluded the same and we discern no error in such conclusion. [Citations omitted.]
In addition to the recitals contained in the servitude agreement proscribing interference by the grantor with the rights of the grantee, Louisiana Civil Code Art. 748 provides that the owner of the ser-vient estate may do nothing tending to diminish or make more inconvenient, the use of the servitude. This codal article is further authority for the judgment rendered by the trial court. [Citations omitted.]

When parties contract for a servitude, the provisions of the instrument govern the extent and mode of use of the servitude. Armstrong v. Red River, 278 So.2d 496 (La.1973). This principle was further amplified in Red River v. Noles, 406 So.2d 294 (La.App. 3d Cir. 1981), where the owner of the servient estate was ordered to remove a permanent building from the right of way or servitude of the levee district. The court stated:

However, we do not rest our decision merely on the finding that the area of the servitude is actually needed to carry out the functions of the Levee District and the purposes listed in the servitude agreement. The physical area needed to carry out these functions is not open to speculation. When the right of way is the result of a contract, its extent is regulated by the contract. * * * Thus, reasoning a contrario sensu from Articles 705 and 749, when the title provides the exact dimensions of the area affected by the servitude, that contract must be given full effect. The owner of the servient estate may not, by unilateral action, effectively take over unused areas of the servitude by establishing thereon permanent structures. [Citations omitted.]
* * * Therefore, since the terms of the contract govern the extent of the servitude, Noles cannot justify his infringement by saying that his building does not prevent the use of the right-of-way by the dominant estate. * * * Since the Levee District has a right by contract to exercise its servitude on all or any part of the area bargained for, a mandatory preliminary injunction to remove obstructions to this right of use is appropriate.

The agreement here provides that Parker’s use of his land can not interfere with or make more inconvenient the use of the right of way. If an activity endangers or may interfere with the operation of the line and the efficient transmission of electricity, then SWEPCO is entitled to an injunction to prohibit that activity. Mineral operations, whether for exploration, completion, production or workover purposes on the right of way will endanger, obstruct or diminish or make more inconvenient and interfere with SWEPCO’s exercise of its contractual rights. These rights may be and in these circumstances should be enforced by injunction.

The issuance of the “conditional injunction” places an unreasonable burden on SWEPCO and materially impairs its full and free utilization of the entire servitude burdening Parker’s property. Were we to approve the “conditional injunction” of the trial court, we would be condoning the actions of the landowner who, in violation of a right of way agreement, manages to complete his actions before he is temporarily restrained. SWEPCO would have to patrol its 4000 miles of transmission lines to insure that no drilling or other activities are about to take place in order to restrain such encroachments before they reach the “completion” stage. Certainly, this is an unreasonable burden, as well as an impossible task, not contemplated by the agreement, and one which would render right of way agreements of this type virtually meaningless.

There should be no court ordered or created duty upon SWEPCO to monitor or supervise Parker’s activities in the completion, workover, or emergency operations on the existing wells. Should SWEPCO breach this created “duty,” it may be subject to liability for the failure to properly supervise activities which are contractually prohibited. In other words, the effect of the trial court’s ruling is to mandate SWEPCO to supervise activities in which defendants had no right to engage in the first place. Clearly, this effect can not be condoned. To say the least, such a requirement renders the use of the servitude more inconvenient.

We are left with the clear impression that Parker, by virtue of his past actions, clearly intends to use his property in total disregard of the right of way agreement to which he is subject and the existence of which was known to him when he bought the property for drilling purposes. His announced intent can only result in continuous and vexatious litigation.

We reverse, then, the trial court’s issuance of the “conditional injunction” on a finding that it was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Accordingly, we amend the judgment of the trial court to delete the provisions relating to the “conditional injunction” and order that a preliminary injunction issue herein directed to defendants, William B. Parker, III, J. P. Boyter, and Boyter Brothers Drilling, restraining, enjoining and prohibiting them, their agents, employees, and all persons, firms or corporations acting or claiming to act in their behalf, or in concert with them, from further drilling activities, completion operations, production, work-over operations and any and all other activities in connection therewith on the Southwestern Electric Power Company one hundred foot right of way granted by instrument dated August 14,1964 and recorded in the Conveyance Records of Caddo Parish, Louisiana, in Book 1043 at page 672 over that certain tract of land located in the Northwest Quarter of the Southwest Quarter of Section 36, Township 22 North, Range 16 West, Caddo Parish, Louisiana, pending a hearing on the petition for permanent injunction.

As thus amended and at the cost of William B. Parker, III, the judgment is affirmed.

JUDGMENT AMENDED, and as amended, AFFIRMED.

      . Our holding in this case pretermits the necessity of our addressing this assignment of error.


author: KLIEBERT, Judge.

text:
    Raoul “Skip” GALAN v. The PARISH COUNCIL OF JEFFERSON PARISH, The Honorable Robert B. Evans, Jr., William Hof, Lloyd F. Giardina, T. J. “Butch” Ward, James E. Lawson, Jr., Ken Hollis, and Ronald Gillen, Parish Councilman for the Parish of Jefferson, Joseph Yenni, Parish President, William Justice, Clerk of Court, Parish of Jefferson, The Board of Election Supervisors, Jefferson Parish, The Secretary of State, State of Louisiana, Custodian of Voting Machines.
    No. 82-CA-65.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 18, 1982.

      Alfred J. Ferry, Kenner, for plaintiff-appellant.
    James S. Arceneaux, Asst. Parish Atty., Gretna, Richard D. Faulkner, P.C., New Orleans, for defendant-appellee.
    Before SAMUEL, KLIEBERT and CUR-RAULT, JJ.
   KLIEBERT, Judge.

On July 28, 1982, the vacancy created by the resignation of Aaron Broussard, councilman for the Third District, Jefferson Parish Council (the Council), was filled by a unanimous vote of the remaining councilmen appointing Ronald Gillen to the Third District seat. At the time of the vacancy and the appointment, an election for district judge, to be voted on parish-wide, was set for July 31,1982. Additionally, an election in which there was to be a parish-wide vote was scheduled for September 11, 1982.

Since the Council did not issue a proclamation for an election, Raoul A. “Skip” Galan, a resident and voter in the Third District, instituted a proceeding in the district court seeking to restrain and enjoin the Secretary of State of the State of Louisiana and the Board of Election Supervisors, Registrar of Voters, and the Custodian of Voting Machines for the Parish of Jefferson from proceeding with the election scheduled on September 11, 1982 unless pri- or thereto the Council had issued a proclamation calling for the election of a councilman for the Third District seat on the same date. Combined in the proceeding was the request for the issuance of “an alternative writ of mandamus directing the Jefferson Parish Council to issue a proclamation calling for the election of a councilman for the Third District on September 11, 1982 ...” On an exception of no right or cause of action, the trial judge dismissed the injunction proceedings and on the merits refused to issue the writ of mandamus because there was insufficient time in which to call an election meeting the requirements of the election code by September 11, 1982.

Mr. Galan, the plaintiff, filed and perfected an appeal to this court and additionally applied for supervisory writs and an accelerated hearing of the appeal under the provisions of R.S. 18:1409. The application for writs is dealt with separately by this court. Consequently, only those issues raised on appeal are covered by this opinion. As to those issues we affirm the trial judge.

Considering the motion for an accelerated hearing, we note that R.S. 18:1401 through R.S. 18:1409 constituting Chapter IX Part 1 of the Election Code concerns itself solely with the “Procedures for Objection to Candidacy and Election Contests”. The matter involved in this appeal is neither an opposition to one’s candidacy or a contest over an election previously held. Consequently, the procedures for such suits, including the accelerated hearing provisions relied on by the plaintiff, are not applicable here. Nevertheless, in the interest of judicial expediency and justice, we granted an accelerated hearing of the appeal.

None of the parties seriously dispute the trial judge’s conclusion that Article 2, Section 2.04 of the Jefferson Parish Charter (adopted on November 5, 1957), entitled “Vacancies”, is the only provision of the Charter applicable to the filling of vacancies on the Council. This provision reads as follows, to-wit:

Any vacancy in the Council may be filled by majority vote of the remaining members of the Council within 30 days. If the Council fails to fill the vacancy by appointment within 30 days, it shall call an election to be held not more than 60 days thereafter to fill the vacancy. The person chosen to fill the vacancy must be qualified under Section 2.03. The person so appointed shall serve only until the next parish-wide election or until the expiration of the term for which the vacating Council member was elected, whichever occurs first. If the person is elected, he shall serve for the remainder of the unexpired term of the vacating Council member.

Apparently, the appointment of Ronald Gillen was made within the thirty day period provided by the above quoted provision for no one questions the authority of the Council to make the appointment filling the Third District seat at the time it was made.

The question placed at issue by Mr. Ga-lan’s suit was the failure of the Council to call an election at the time the appointment was made and the relief prayed for by him was, “... an alternative writ of mandamus directing the Jefferson Parish Council to issue a proclamation calling for the election of a councilman for the Third District on September 11, 1982.” Thus, our inquiry is not whether an election should have been called or should now be called, or what effect the Council’s failure to call an election has on the term of office of the appointed councilman, but rather, whether an election complying with the requisites of the election code (R.S. 18:1 et seq.) can be called by September 11, 1982. The trial judge concluded that at the time of trial, August 6, 1982 (judgment was rendered on August 9, 1982), there was not sufficient time to call the election. The question of whether there was or was not sufficient time to call the election at the time the trial judge ruled is no longer important here. The mere passage of time has limited the question to whether there is now sufficient time in which to hold the election on September 11, 1982. As to that question, it is certain there is insufficient time; therefore, we are powerless to grant the specific relief prayed for by the plaintiff.

The Parish Charter is silent as to the manner in which the election is to be called and held. Article 11, Section 1 of the Louisiana Constitution of 1974 mandated the legislature to adopt an election code which shall provide “... for the conduct of all elections”. Pursuant to the mandate, in 1976 the legislature enacted Revised Statutes Title 18, constituting the “Louisiana Election Code”. Section 602 of Title 18 of the Code provides for the filling of vacancies in local and municipal offices and Part “G” thereof contains the following exception:

“The provisions of this Section shall apply to all local governmental subdivisions unless the filing of a vacancy otherwise is provided for by the constitution or by the home rule charter or home rule plan of government of the affected local governmental subdivision. Such constitutional home rule plan provisions shall govern the filling of vacancies and the time and manner of calling elections to fill the vacancies to which such provisions apply.”

Thus, where as here, the Parish Charter is silent, the State Election Code controls the holding and conduct of a parish-wide election. Therefore, we must determine from the State Election Code whether there is sufficient time in which to call and hold an election by September 11, 1982.

Even if this opinion was final at the time of its issuance, which it is not because of the time needed for writ applications to the Supreme Court, at best only 23 days remain between its issuance and September 11, 1982. In order to conduct an orderly election, the Election Code provides for various time periods in which things must be done and various time periods to perform other things. For example, R.S. 18:402(E) directs the holding of a special primary election not less than fourteen (14) weeks after the date on which the proclamation calling the special primary election is issued. Further, the Secretary of State is prohibited by the provisions of R.S. 18:402(E)(3) from including the name of any candidate on any ballot for a special election to fill a vacancy in any office unless the appropriate authority promulgating the holding of an election sets the date of the election on the dates provided by R.S. 18:402(E). Additionally, R.S. 18:1306(C) provides for twenty (20) days for the Secretary of State to prepare and deliver the absentee ballots and under R.S. 18:1309(A) absentee balloting must be permitted from nineteen (19) days to six (6) days before the election. It is evident, therefore, that the time period prescribed by the Election Code for the orderly conduct of an election cannot be complied with and the election called by September 11, 1982.

Additionally, appellant has raised the issue of whether we should now order the calling of a special election to fill the vacancy created by the resignation of Mr. Brous-sard. The issue is raised for the first time in this court; it was not pleaded or considered in the trial court; and, of course, no evidence was taken thereon. As the charter does not contain any provision regarding a special election to fill a vacancy and since none of the facts regarding the calling of such an election are in the record, we decline to consider the issue at this time. Appellant’s remedy, if any he has, is by appropriate proceedings in the trial court.

The injunctive relief sought by the plaintiff is an adjunct to his prayer for a writ of mandamus to have the Council promulgate the call of an election on September 11, 1982. Since the writ of mandamus is denied, the prayer for injunctive relief is moot. Accordingly, the judgment of the lower court is affirmed. All parties to bear their own cost of the appeal.

AFFIRMED.

      . The record on appeal was lodged in this court on August 12, 1982 and oral arguments were heard on August 17, 1982.


author: SUGG, Presiding Justice,

text:
    In re Inquiry Concerning a Judge, Justice Court Judge Otto A. BRANAN.
    No. 53621.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Rehearing Denied Sept. 15, 1982.
    Luther T. Brantley, III, Jackson, for Miss. Com’n on Judicial Performance.
    Vance & Perrier, Travis T. Vance, Jr., Vicksburg, for Otto S. Branan.
    Before SUGG, P. J., and HAWKINS and PRATHER, JJ.
   SUGG, Presiding Justice,

for the Court:

This matter is before the Court on recommendation of the Mississippi Commission on Judicial Performance made pursuant to Section 177A of the Mississippi Constitution of 1890.

The Commission found that the procedure used by respondent in collecting bad checks constituted, (1) Willful and persistent failure to perform the duties of his office, and (2)conduct prejudicial to the administration of justice which brings the judicial office into disrepute. The Commission unanimously recommended that this Court publicly reprimand respondent, fine him $1,000, and require him to make restitution of $3,489.68 collected by him from persons as civil damages in addition to court costs.

The Commission found that the evidence was sufficient to support a recommendation of removal from office but recommended lesser sanctions because of mitigating circumstances including, but not limited to, respondent’s cooperation in the investigation, his acknowledgment of wrong doing, and his willingness to accept punishment.

Respondent states in his brief that he has neither objection nor defense to the findings of fact of the Commission and signed an agreed statement of facts. He admits that he made serious errors in the conduct of his office as justice court judge and that such errors occurred because he had been instructed to seek advice from his experienced peers about the proper way to conduct his official duties. He admits that his actions were in violation of law but that he was following a procedure instituted by more experienced justice court judges in his county who had followed the same procedure for some years. Respondent is to be commended for cooperating fully with the Commission in the investigation and not attempting to cover up any action that he had taken. He expressed regret for his actions, assured the Commission that he had corrected his errors, and stated if he was allowed to continue as justice court judge, he would endeavor to bring honor and high esteem to the office. We agree with the Commission that he should not be removed from office.

Section 177A provides in part:

On recommendation of the commission on judicial performance, the supreme court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state . ..

The first question is whether this Court may order restitution as recommended by the Commission. We answer the question no because restitution is not one of the sanctions permitted.

The next question is whether this Court may impose multiple sanctions under Section 177A. The use of the disjunctive “or” denotes a choice between alternatives. Webster’s Third New International Dictionary (1967). In construing criminal statutes authorizing different sentences, we have recognized the common meaning of the disjunctive “or” as a choice between alternatives. Salter v. State, 387 So.2d 81, 84 (Miss.1980); Bass v. State, 328 So.2d 665, 667 (Miss.1976). In both of these cases we held that where permissible sentences are separated by the disjunctive, only one may be lawfully imposed. We conclude that Section 177A should be construed as if “or” was inserted between each sanction permitted. The section would then read:

The Supreme Court may remove from office or suspend or fine or publicly censure or reprimand .. .

However, our examination of the question requires consideration of other provisions of section 177A which authorize this Court to impose sanctions on any justice or judge for:

(a) [Ajctual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

If the acts of the justice or the judge complained of constitute more than one of the proscribed categories of conduct, (a) through (e), multiple sanctions may be imposed. However, if such conduct would only fall within one of the proscribed categories multiple sanctions may not be imposed. For example, if the conduct of the justice or the judge would only show a willful and persistent failure to perform his duties, only one sanction could be imposed because the sanctions are in the disjunctive as previously noted.

In this case the conduct of respondent constituted both (c) willful and persistent failure to perform his duties and (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Under the facts of this case, we conclude that multiple sanctions may be imposed.

We therefore follow the recommendation of the Commission, fine respondent $1,000 and publicly reprimand him. Because of the publicity already given to this case, we conclude that respondent has been publicly reprimanded and the public reprimand ordered by this Court shall consist of publication of this opinion in the Southern Reporter.

RESPONDENT FINED $1,000 AND PUBLICLY REPRIMANDED.

PATTERSON, C. J., WALKER, P. J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

APPENDIX A

Beginning on or about January 1, 1980, and continuing to on or about March 11, 1981, the Respondent engaged in the collection of “bad checks,” i.e., checks which had been tendered to local merchants but which had been returned to those merchants by the payee bank because payment had been refused. These “bad checks” were given to Respondent for collection by various local merchants. The merchants would usually sign a criminal affidavit and the check would be attached to the criminal affidavit; this criminal affidavit was oftentimes blank. No entry was made in Respondent’s official civil or criminal docket books, except that certain check collection cases were entered in a special civil docket number “lVz,” and no prepayment of court costs and fees was made. Thereafter, Respondent referred said warrants for arrest to his Constable, Mike Ouzts. Generally, criminal warrants were issued by Respondent without the proper filing or docketing of a criminal matter. The warrants were placed in the possession of Ouzts and were used by him in connection with the collection procedure. No return was made on these criminal warrants. The makers of the “bad checks” were usually given an opportunity to contact the judge and pay off the check, plus “court costs,” plus “civil damages” computed according to Mississippi Code Annotated, Section 11-7-12 (Cum.Supp.1980). The amount collected for court costs was $25.00. Upon collection, the face amount of the check was to be repaid to the merchants who had submitted the check for collection. Respondent retained $15.00 of the costs for himself and paid $10.00 to the Constable. In certain instances civil summons were issued, with the same costs and damages imposed. No other record of the collection of these cheeks or the payment of the fees, court costs and damages described above was entered in Respondent’s official docket book and no payment of fines, penalties or fees was ever made to Warren County, Mississippi, by Respondent with respect to the checks collected as hereinabove detailed, except that certain check collection cases were entered in a special civil docket number “iy2.” Respondent did not collect criminal fines on said “bad checks;” the only monies collected were the amount of the check, “court costs” and “civil damages.”

That statistically for Calendar Year 1980 Respondent’s check collection activities, as determined by the Commission Investigator, were substantially as follows: If there were “bad checks” collected in addition to those determined by the Commission Investigator’s report, Respondent makes no representation as to any amount not included in said report.

Number of Checks Collected 286
Face Amount of Checks Collected $8,546.04
Damages Collected $3,673.08
Court Costs Collected:
Judge $3,410.00
Constable $2,298.00
Total Collections $17,927.12

      . Article 6, Mississippi Constitution of 1890, was amended by adding a new section designated as Section 177A proposed by House Concurrent Resolution 33 at the 1979 Regular Session of the Legislature and ratified by the electorate on November 6, 1979.

      . Pertinent parts of the agreed statement of facts appear as Appendix A.