author: DOUCET, Judge.

text:
    Alex FENETZ, Plaintiff-Appellee, v. Edward J. STINE, et al., Defendant-Appellant.
    No. 8529.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1981.

      Camp, Carmouche, Palmer, Palmer, Barsh & Hunter, A. J. Gray, III, Lake Charles, for defendant-appellant.
    Franklin, Moore & Walsh, Ray Dawson, Baton Rouge, for defendant-appellee-appel-Iant.
    McHale, Bufkin & Dees, Michael Dees, Lake Charles, for plaintiff-appellee.
    John Digiulio, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

This law suit involves contracts for the irrigation of approximately 355.7 acres of riceland in Calcasieu Parish. Plaintiff, Alex Fenetz, alleges he sustained crop losses as the result of defendant Edward J. Stine’s breach of contract to provide adequate water for irrigation of his rice crop on land known as the Sulphur Farm. In response to plaintiff’s suit, defendant Stine denied the existence of any such contract, breach thereof, or resultant damages; reconvened against plaintiff for a percentage of the rice crop for a sum of money, and for recognition of a lien on plaintiff’s rice crop; and further third-partied his lessor, State of Louisiana, Department of Public Works, owner of the canal system involved, alleging their construction on that portion of the Sabine River Diversion System prevented him from furnishing sufficient water. The Department of Public Works denied liability to Stine, and third-partied the diversion canal contractors, Darling and Ryder, Inc. and Goss Construction Company, together with their bonding company, Safeco Insurance Company of America. Trial followed and subsequently judgment was rendered in favor of plaintiff and against the defendant Stine in the amount of $39,196.29; in favor of third-party plaintiff, Stine, and against the Department of Public Works in the amount of one-half (V2) of all sums owed; and in favor of third-party plaintiff, Department of Public Works, and against said construction companies and their surety in the amount of one-half (V2) of all sums owed. We affirm.

FACTS

Before 1975 the Sulphur Farm was owned and irrigated by Krause & Managan Lumber Co., Ltd. By 1975, substantial changes were made in the agricultural management of the area of which the Sulphur Farm is part. The canal system had been acquired by the state as part of the Sabine River Diversion System, and construction on the system was undertaken by a joint venture composed of Goss Construction Company and Darling and Ryder, Inc. By instrument dated February 24,1974 defendant Stine leased portions of the old Krause & Managan canal system from the Department of Public Works. The Sulphur Farm was farmed by plaintiff in 1975 and is bounded on the west by what is referred to as the “main canal”, and on the south by an east-west canal known as “Canal 3-B”. The property is traversed by a lateral canal called the Miller lateral. All portions of the farmland were irrigated by one of these three canals, and 85 acres east of the Miller lateral required irrigation only from Canal 3-B. In preparation for the 1975 farming operations, defendant Stine caused the Miller lateral to be dredged and prepared for irrigation purposes. In 1975 Canal 3-B was blocked by several dams and was not available for irrigation. Plaintiff originally claimed Stine was obligated to furnish water to the aforementioned 85 acres serviced by Canal 3-B, but he has not appealed from an adverse ruling at the trial level in this regard. As to the remaining portion of the Sulphur Farm, the trial judge agreed with the plaintiff that Stine had breached his obligation to furnish adequate water, and crop loss was the result.

On appeal defendant Stine specifies as error that the trial court committed manifest error in finding: 1) a contract; 2) a breach; 3) the occurrence or extent of damages; and 4) that the State is not totally responsible for plaintiff’s damages. Defendant Department of Public Works claims fault lies with the contractors who failed to follow plans and specifications, and further claims that a hold harmless clause in its agreement with the construction companies protects the Department from liability. Sa-feco Insurance asserts all defenses made by the contractors and additionally claims any nonperformance or breach on their part is outside of the bond coverage provided.

I.

We find the record amply supports the trial judge’s finding that there was a contract between Fenetz and Stine and that it was breached. Although the defendant originally admitted the existence of a contract, he later denied same in a supplementary and amended answer. The evidence supports his original answer. For many years the defendant had furnished water to area farmers and the record indicates he assured plaintiff that he would provide water as he had done in the past. The agreement was not reduced to writing, but such is not necessary, in fact, a contract may be implied by one’s actions. LSA-C.C. Art. 1811. Defendant’s partial assistance in providing water supports the trial court’s finding that an agreement existed. LSA-C.C. Art. 1816. Furthermore, defendant requested and accepted Vt of plaintiff’s crop as “water rent”.

II.

The trial judge found that defendant was obligated to furnish water at the customary time of the crop year, April 1, however, without the consent of the plaintiff, defendant agreed with the Department of Public Works to extend the said date. Larry Gal-ien, an expert agronomist, testified that water at such critical stages of the rice crop is essential for a crop to realize its maximum yield. Not until April 29, 1975, did plaintiff receive water. Shortly thereafter, the main canal developed a wash-out preventing further furnishing of water. Also, flood gates were placed at an elevation too high to flood the fields unless the main canal was completely filled, which was not done. Finally, there was no evidence of a fortuitous event such as drought.

III.

The trial judge explained his quantum award, as follows:

“According to the testimony of Mr. Larry Galien, an expert rice farmer consultant, the expected yield from the farm was 30 green barrels of rice per acre, or a total of 10,671 barrels on 355.7 acres. Therefore, the gross green barrel loss to plaintiff was 4,849.77 barrels. Substract-ing [sic] Vsth for water rent and Vsth for land rent, the net green barrel loss to Fenetz was 2,909.87 barrels. Deducting 10% for drying, the plaintiff’s net dry loss was 2,618.88 barrels. Expressing this quantity in hundred weight, we find that plaintiff had a loss of 4,242.59 hundred weight. Mr. Fenetz sold his rice for $8.93 per hundred weight, therefore his gross dollar loss was $37,886.33.
In argument, plaintiff states that charges for drying, handling, storage, fumigation and insurance amount to $1.36 per green barrel. The Court finds this essentially correct. Therefore, a further deduction should be made amounting to $3,957.42. Also, in and out charges of $565.68 should be deducted. Also, gasoline cost for transportation should be deducted and plaintiff argues this charge should be $33.60. The Court finds that this charge is not in error. Applying these deductions to plaintiff’s loss, the net loss from the first crop is $33,329.63.
The evidence showed that a stubble crop would have been produced and would have produced an additional 5.5 green barrels per acre or 1,956.53 (355.7 acres X 5.5 barrels) additional barrels. Applying all rents and other deductions, plaintiff’s stubble crop loss was $17,-928.16, or a total of $51,257.79 for the entire crop. However, there was no obligation to furnish plaintiff water to the east 85 acres, therefore plaintiff is not entitled to recover a loss on this acreage. Apportioning the loss, the Court finds that the loss attributabe (sic) to the west 272 acres (272/355.7 X $51,257.79) was $39,196.29.”

Defendant Stine complains of the use of expert testimony, however, the trial court has broad discretion in selecting a method of calculating damages to crops, Jardell v. Sabine Irrigation Co., Inc., 346 So.2d 1365 (La.App. 3rd Cir. 1977). We find no abuse of discretion in the method employed to calculate damages. Likewise, we will not disturb the award by the trial court as the record reveals no clear abuse of discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979); Mid-State Homes Inc. v. Lartigue, 383 So.2d 99 (La.App. 3rd Cir. 1980).

IV.

The trial judge further found that the Department of Public Works contributed to the plaintiff’s damages in improperly installing a siphon system at the wash-out site. We will not disturb such factual findings absent manifest error. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring, 283 So.2d 716 (La.1973); Boustany v. Fluid Dynamics, Inc., 392 So.2d 750 (La.App. 3rd Cir. 1980); Johnson v. Coca-Cola Bottling Co., Inc., 386 So.2d 993 (La.App. 3rd Cir. 1980). Applying this standard of review to the facts in the record, we conclude the trial judge was not clearly wrong in his apportionment of liability. Furthermore, the hold harmless clause alluded to by the Department is ambiguous and was thus properly construed against them.

Similarly, the trial judge’s finding that the contractors failed to follow the plans specified, will not be disturbed. The contention of the construction companies’ surety, Safeco, that what is not required by statute in a public works contract must be read out of the bond, is without merit. See: Construction Materials, Inc., v. American Fidelity Fire Insurance Co., 388 So.2d 365 (La.1980); Bullard v. State of Louisiana, 394 So.2d 626 (La.App. 1st Cir. 1980).

For the reasons assigned, the judgment of the trial court is affirmed and costs of this appeal are taxed to appellants.

AFFIRMED.

      . The action was stayed as to this defendant because of voluntary bankruptcy proceedings.


source: Caselaw Access Project

author: REDMANN, Judge. GULOTTA, Judge, KLIEBERT, Judge, SAMUEL, Judge, WILLIAMS, Judge, SAMUEL, Judge,

license: Public Domain

text:
    Lynn J. TOMLINSON et al. v. Lee FRAZIER et al.
    No. 13039.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 5, 1982.
    Dissenting Opinions Jan. 7, 1982.
    Dissenting Opinion Jan. 8, 1982.
    Writ Denied Jan. 8, 1982.

      John Musser, IV, Harry A. Rosenberg, New Orleans, for plaintiffs-appellants.
    Kenneth M. Carter, Herman & Herman, New Orleans, for defendants-appellees.
    Before SAMUEL, C. J., and REDMANN, GULOTTA, BOUTALL, SCHOTT, GARRISON, CHEHARDY, BARRY, KLIEBERT, KLEES, AUGUSTINE, CIACCIO, LOBRA-NO, WARD and WILLIAMS, JJ.
    BYRNES, J., recused.
   Reasons for Judgment

REDMANN, Judge.

Plaintiffs appeal from the dismissal of their suit contesting defendant’s candidacy for the Louisiana House of Representatives. We affirm the judgment appealed from, and we adopt the reasons of the trial judge, although we add to them because of the argument made in this court. Judge Plot-kin’s reasons are quoted:

“Plaintiffs, Lynn J. Tomlinson, Evelyn Booker and John Geiser, III, bring this action against defendant Lee Frazier challenging his eligibility as a candidate for State Representative from the 92nd Legislative District. This attack is based on their contention that defendant failed to comply with the requirements for residence and domicile set forth in Art. 3 Section 4(A) of the Louisiana Constitution of 1974, which provides:
(A) Age; Residence; Domicile. An elector who at the time of qualification as a candidate has attained the age of eighteen years, resided in the state for the preceding two years, and been actually domiciled for the preceding year in the legislative district from which he seeks election is eligible for membership in the legislature.

They allege that at the time defendant filed his qualifying papers he had neither resided in the State for the preceding two years nor been actually domiciled in the 92nd Legislative District for the previous year.

“Plaintiffs have the burden of proving by positive and satisfactory proof that the defendant failed to meet the requisites for candidacy outlined in Art. 3 Section 4(A). Mix v. Blanchard, 318 So.2d 125, 129 (La.App. 4th Cir. 1975). Plaintiffs, however, have failed to carry the burden of proof required to disqualify the defendant as a candidate.

“On August 26,1969, defendant and his wife purchased the property located at 329 Diana Street in the Algiers Section of New Orleans, Louisiana, where they resided until 1974 when defendant was appointed executive director of Charity Hospital. As director of Charity Hospital, defendant was entitled to, and did occupy, rent-free, 266 Walnut Street, New Orleans, Louisiana until that employment was terminated in June 1977. Defendant then assumed the directorship of Harlem General Hospital in New York City, where he relocated and resided from January 1, 1977 until May 1980 when he was offered the position as director, New Orleans General Hospital, which he accepted.
“During the summer of 1980, defendant periodically returned to New Orleans to prepare for the opening of the hospital and to arrange housing for his family. On October 30, 1980, he executed an agreement to purchase 1004 Philip Street, New Orleans, Louisiana, scheduling the act of sale and the date of occupancy for December 3, 1980. However, due to the seller’s inability to vacate the premises on the scheduled date, the act of sale was extended until December 14, 1980. The act of sale ultimately passed on December 19, 1980 and defendant and his family have continuously resided there.
“Plaintiffs contend that defendant changed his domicile when he moved to New York City. Thus since he did not physically occupy 1004 Philip Street until December 16,1980, a period less than one year from the date he actually qualified for office, defendant was not domiciled in the 92nd Judicial District one full year prior to qualifying.
“The Fourth Circuit Court of Appeal in construing the intent and purpose of the redactors in drafting Art. 3, Section 4(A) stated that:
The framers of our present constitution intended to ensure that a candidate seeking to represent the people of a district does truly live amongst those people and does not simply establish a domicile by declaration of intentions accompanied by some minimum acts of residence. As we see it, the constitution requires adherence to the factual concept of habitual residence and principal establishment, and, where a person resides alternately in several places, he is only qualified for election purposes in that place where he maintains bona fide living quarters in which he actually lives a substantial part of the time. It emphasizes the facts of living in a place, rather than simply maintaining a bedroom elsewhere which one may occasionally retire to. The determination of actual domicile is dependent on the facts in each particular case. The burden of proof is upon the contestant. Charbonnet v. Hayes, 318 So.2d 917, 920 (La.App. 4th Cir. 1975).
“The Court had the opportunity to comment further on the intent and purpose of the redactors in drafting this Article in Mix v. Blanchard, supra., where it stated:
It is apparent the delegates intended to limit candidacy for political office to citizens who actually live in the district they aspire to represent. The newly drafted constitutional article was designed to eliminate a system under which candidates would establish a “political domicile” from which to seek office even though they chose to live and maintain their families in another area, and were not truly representative of the district from which they sought election. Id. at 127-28.
“The evidence clearly establishes that defendant was actually domiciled within the 92nd Legislative District for the entire year preceding his qualifying as a candidate. The facts show that the definition of domicile as articulated by the delegates to the Constitutional Convention who drafted Art. 3, Section 4 has been met.
“Defendant became a fulltime employee of New Orleans General Hospital in September 1980, and was responsible for its public opening on December 15, 1980. Although he had to return periodically to New York to conclude his business affairs and to arrange for his family to move to New Orleans, defendant spent his nights at the hospital or the Pontchartrain Hotel until he was able to secure a permanent home. On these occasions he actually lived in the district.
“Defendant’s family and physical possessions arrived in New Orleans on or about December 13, 1980. He paid the vendor a $250.00 rental fee for the use of 1004 Philip Street for the period December 14,1980 to December 19,1980, giving him exclusive and constructive control over the property until the act of sale. As of December 14, 1980, defendant was actually domiciled within the 92nd Legislative District.
“Plaintiffs also argue that defendant did not reside in-the state for the two years preceding his qualifying as a candidate.
“It is well settled under Louisiana law that while a person may have only one domicile he may maintain two or more residences at the same time. Charbonnet v. Hayes, supra; La Fleur v. Seaboard Fire and Marine Insurance Co., 296 So.2d 860, 863 (La.App. 3rd Cir. 1974). Although the two terms are closely related they are not synonymous. La Fleur at 863.
“From the date defendant moved to New York until the date he established his domicile in the 92nd Legislative District he had two places of residence, one in New Orleans at 329 Diana Street and the other in New York City.
“As the Court stated in Stavis v. Engler, 202 So.2d 672 (La.App. 4th Cir. 1967), the issue of residence depends on the resident’s intent.
* * * One does not, however, lose his status, as an actual, bona fide, resident of a place, either because he finds it necessary to establish his family elsewhere, or because, in the absence of his family, he does not maintain a domestic establishment at such place. The question is one largely of intention, and the intention of a person, in that respect, is determined by his expressions thereof, at times not suspicious, and his testimony, when called on, considered in connection with his conduct and the circumstances of his life.
Id. at 677, quoting Canfield v. Cravens, 138 La. 283, 70 So. 226, 227 (1915).
“The facts indicate that defendant always intended to maintain his residence at 329 Diana Street while he resided in New York City. During this period, he periodically returned to New Orleans and stayed at the Diana Street address. Over this period of time he maintained the property and paid the monthly mortgage, taxes, water bill and insurance premiums. This evidence unequivocally shows that defendant intended to reside in New York temporarily solely because of the job opportunity at Harlem General Hospital. It was the defendant’s intention to return to New Orleans within a definite period of time after completing his employment contract.
“It is a well established principle in our jurisprudence ‘that laws governing the conduct of elections should be liberally interpreted so as to promote rather than defeat candidacy.’ Slocum v. DeWitt, 374 So.2d 755, 758 (La.App. 3rd Cir. 1979). Moreover, ‘any doubt should be resolved in favor of permitting a candidate to run for public office. After all, he still has to face the voters who will, and should, exercise the final judgment on his candidacy.’ Id.”

We add to those reasons in respect to both the two-year “resided” requirement and the one-year “actually domiciled” requirement of La.Const. art. 3 § 4(A).

We first repeat, for emphasis, the difference in that constitutional language in stating the eligibility requirements: one need only have “resided” in the state for two years but must have been “actually domiciled” in the legislative district for one year preceding “the time of qualification.” The constitutional convention delegates heard the chairman of the committee which presented the draft of Section 4 explain “It is our appreciation that the word ‘domicile’ is in fact a more restrictive word than is the word ‘residence.’ By that I mean that you can have but one domicile but you can have more than one residence.” Records, La. Constitutional Convention 1973, V, 328. He later declared “I don’t think anything inhibits an individual from having three, four, six, eight, ten or fifteen residences.” Id., 330.

We next observe that defendant has lived in Louisiana since he was three months old and is thus virtually a life-long resident of Louisiana. He at no time had any other residence except during the period of about two and a half years that he worked in New York. The determinative question, however, is not whether he had a residence in New York, but whether he abandoned or somehow forfeited his life-long residence in Louisiana.

Most of the relevant circumstances are set forth in the trial judge’s reasons, although we would add that defendant continued to contribute to his church near his Diana Street house in New Orleans at all times, and appellants stress that, in addition to moving into New York City proper (he first rented nearby) because an ordinance required him to do so to keep his city employment, defendant (and his wife) also registered to vote in New York, and we find no express testimony that the ordinance required defendant to do that. But when plaintiffs’ counsel later asked about changing voter registration, the trial judge halted the inquiry with “Let’s not go through that. He’s claiming it was a job opportunity such as a student going off to school or a soldier going into the army.” It is not clear to us, from our reading of the transcript, that the New York ordinance required voter registration as a qualification for the New York city hospital employment, but the trial judge may have made that inference and plaintiffs may have acceded to that inference, for they offered no further evidence on the registration, not even by proffer under C.C.P. 1636. Furthermore, defendant evidently did not attach to voter registration the significance that plaintiffs would, for he had even changed his registration in New Orleans when he moved from the Diana Street house he owned into the Walnut Street house provided for him as director of Charity Hospital. He cannot have supposed that that directorship was anything but a temporary job (and he so testified), and therefore he cannot have expected to live in that house indefinitely, yet he changed voter registration to that house’s location. Thus a change in voter registration for him seems to be not a momentous matter, and certainly not a matter that precluded defendant’s continuing to be a resident of Louisiana.

Plaintiffs also stress defendant’s wife’s “No” response to “You didn’t intend to be living on Diana street or Walnut street at the same time you were living in New York City, did you?” But the wife’s testimony cannot be misunderstood in context: she was only denying any intent to be in two places at once and that is all plaintiffs’ counsel was talking about. “Q. You didn’t have any intention to live on Diana street while you were living on Walnut street? A. You mean live in two places? Q. Right. A. I don’t think that’s possible, no.”

From the record as a whole, we cannot say that the trial judge was clearly wrong in his conclusion that defendant neither abandoned nor lost his life-long Louisiana residence by his stay in New York, when, as he testified, he always intended to return to Louisiana. Accordingly the requirement of two years’ residence in the state was correctly held met.

The one year “actually domiciled” requirement was also correctly held met from the facts that defendant since October 30 had a contract to buy the house at 1004 Philip street, paid rent for it for December 14-19, had the keys to it and had at least set foot in it, all elements concurring as of December 14, 1980 (although he probably did not sleep there that night), one year before the day he qualified.

But we also observe that the constitutional wording in art. 3 § 4(A) is “at the time of qualification,” not at the time of his qualification. The committee draft had read “at the time of the general election,” and the first amendment was to “time of qualification for the office.” The amendment’s proponent explained “it’s going to require the legislature, of course, to set a specific date for qualifying so that all will be treated equally — that is you won’t have an independent able to come in and register at a later date than the democratic primary or the republican primary . ... ” Records, V, 328. The convention thus intended to treat all persons equally in respect to their eligibility by measuring age, residence and domicile by the same standard for all candidates, as of “the time of qualification for the office.” Because periods of residence and domicile were made requirements for eligibility to office, it would have made no sense to require a democrat or a republican to meet those requirements at the time of his qualification when his qualification had to occur before his party’s two partisan primaries, months before an independent would have had to qualify by nomination papers, and thus months before “his” (the latter’s) qualification. The result would have been that a democrat or republican would have a months-longer residence requirement for eligibility to office, which simply cannot have been the intent of a constitutional convention composed almost entirely of democrats and republicans. Similarly, if two candidates had each become domiciled in a district on December 16,1980, and the “time of qualification as a candidate” set by the legislature was December 14 through 18, 1981; and the purpose of requiring one year’s “actual domicile” in the district for eligibility is to assure that the candidate has that much familiarity with the district’s problems; then it would make little sense to accept one candidate because he filed his qualifying papers on December 18, yet disqualify the other because he filed his on December 14. That would be an absurd result, and therefore must be avoided in constitutional interpretation. Blessing v. Levy, 214 La. 856, 39 So.2d 84 (1949); State v. Joseph, 143 La. 428, 78 So. 663 (1918).

Plaintiffs did not bear the burden of proving either that defendant did not reside in Louisiana for the two years or that he was not domiciled in the district for one year preceding the time of qualification.

GULOTTA, CHEHARDY and KLIE-BERT, JJ., concur.

SAMUEL, C. J., and WILLIAMS, J., dissent.

GULOTTA, Judge,

concurring.

I respectfully concur.

The most serious attack on Frazier’s qualifications is based on the two-year residency requirement. In Charbonnet v. Hayes, 318 So.2d 917 (La.App. 4th Cir. 1975), we stated that the contestant has the burden of showing the opposing candidate has not met this requirement.

For the reasons set forth in the trial judge’s opinion and those stated by the majority, I conclude that plaintiffs have failed to carry their burden. The evidence and argument offered regarding lack of residence in Louisiana by Frazier for this period, though serious, was not convincing enough to compel a result that Frazier should be disqualified. As I stated in a dissent in the Charbonnet case, supra:

“Absent strong and convincing evidence of a candidate’s disqualification to seek office, courts should be reluctant to invade the elective process. Selection of candidates for office, if at all possible, must be left to the people and selection by judicial fiat should be zealously avoided. Under the circumstances in the instant case, I would not disqualify Hayes from seeking election to the legislature from the 96th District.”

KLIEBERT, Judge,

concurring.

I concur in the affirmation of the trial judge’s ruling but do not agree with the reasons for the affirmation assigned by the majority decision.

SAMUEL, Judge,

dissenting.

I agree with the dissenting opinion handed down by Judge Williams.

Relative to the two year residency requirement, the basic question is whether Mr. Frazier retained the Diana Street property as his residence and, in my view, the evidence firmly establishes he did not. Nor do I see any materiality in that his work required that he live in New York or that his mother occupied the Diana Street premises, facts relied on by the appellee. Whether or not his work requirement resulted in losing his Louisiana residency is immaterial; he did, in fact, lose it. And I see no difference between his mother occupying the premises as opposed to Mr. Frazier leasing those premises to a third party on a month-to-month basis.

In addition, I am satisfied that, as required by Article 3, § 4(A) of our 1974 Constitution, “at the time of qualification as a candidate” Mr. Frazier had not been “actually domiciled” for the preceding year in the legislative district here involved. Accepting all the pertinent facts as found by the trial court, he was not domiciled in the legislative district for the preceding year at the time he actually qualified; he was so domiciled for the required one year period only if the “time of qualification” is considered as being the final day on which he could qualify. The trial court, and apparently the majority of this court, accepted the latter. I believe this is incorrect. The determining time is when the candidate himself actually qualifies.

It is noteworthy that the word “qualification” is used only twice in Article 3, § 4, under (A) simply, without modification, “qualification”, but under (B) modified by the personal, possessive pronoun “his”, “his qualification”. In my view, “his qualification” has reference solely to the time the candidate himself actually qualifies, and there is no reason to hold the word “qualification” has a different meaning in (A) as opposed to its clear meaning in (B). An examination of the records of the Constitutional Convention which framed the Louisiana Constitution of 1974 establishes this view as correct. The following colloquy appears in Records of the Louisiana Constitutional Convention of 1973: Journal of Proceedings, Volume 9, page 2509:

Questions
“Mr. Dennery Mr. Chairman, I suppose this should be asked of Judge Tate.
It’s clear from this, Justice Tate, that the date of qualification is the final date at which a man can qualify ... not the date of his actual qualification?
Mr. Tate Mr. Dennery, we thought it was clear, we needed some clarification because ... we thought it was clear that it meant at the time that he qualifies as a candidate for office, he meets the qualifications needed for the office.
Mr. Dennery No. My question is, sir: do you mean at the actual date on which he personally qualifies or the last date on which he is permitted to qualify?
Mr. Tate I understand your question. We didn’t think that was a problem because if he didn’t have it the first day, he would qualify on the last date, Mr. Den-nery. We didn’t think it was a real problem.”

Nor can I agree with the majority opinion which states “it would make little sense to accept one candidate because he filed his qualifying papers on December 18, yet disqualify the other because he filed his on December 14.” This, it appears to me, is exactly what the Constitution says and I have no authority to hold otherwise simply on the basis of what I may consider to be a better result.

The important consideration is what the convention delegates understood they were voting on and what, by that vote, they accepted. And, quite clearly, it appears to me that they voted on and accepted the fact that “time of qualification” meant only the time when the candidate himself actually qualified.

Accordingly, I respectfully dissent.

WILLIAMS, Judge,

dissenting.

The evidence establishes that Mr. Frazier did not maintain a residence in Louisiana for the two years prior to his qualification as a candidate. See 1974 Louisiana Constitution Article 3, § 4(A).

Testimony adduced at trial shows that both Frazier and his wife registered to vote in New York, established a home there, maintained their principal banking accounts in New York, paid taxes in New York, and received mail in New York.

In light of Frazier’s extensive contacts with New York, his intention clearly appears to have been to establish residency there. It is equally clear that Frazier also abandoned any intention of keeping 329 Diana Street as a residence. Frazier’s only interest beyond ownership in that address was his mother’s residence there and a few sporadic visits. Testimony indicated that the Frazier family could not physically reside in the home because of space limitations, and Frazier himself did not always stay there on his trips from New York to New Orleans. When Frazier’s family returned to New Orleans, they did not stay on Diana Street but stayed in the Pontchartrain Hotel until they could move into another residence. Simply because a family member remains at a house after the owner has moved is not unequivocable evidence that the intention of the owner was for that family member to maintain the house as the owner’s residence.

Furthermore, all of the evidence introduced by Frazier to support his claim of residency at Diana Street is indicative merely of ownership, and not necessarily of residency. Payments on a mortgage note, maintenance of insurance, payment of water bills, taxes, and other maintenance expenses are not necessarily limited to residency. Mrs. Frazier testified that she had filled out “change of address” forms at the post office, indicating that any mail addressed to the family should be forwarded to New York. Any mail received at the Diana Street house, therefore, probably was of an incidental nature.

In McIntire v. Carpenter, 202 So.2d 297 (La.App. 4th Cir. 1967), this court addressed the question of residency of the plaintiff, a doctor who had a medical office in Jefferson Parish and was claiming residency in that parish. The plaintiff had a Jefferson Parish driver’s license, a bank account in the parish, was a member of professional associations in the parish, was registered to vote in that parish, and was a Notary Public for Jefferson Parish. He testified that he spent one or two nights a week in his office, and the remaining nights at his home in Orleans Parish. This court found him not to be a resident of Jefferson Parish, holding:

“(W)e are compelled to reach the inevitable conclusion that an occasional night spent in his medical office is not of such import so as to constitute that office as his residence and thus provide him with the necessary residency requirements of a candidate for State Senator.” Id. at 300.

See Hall v. Godchaux, 149 La. 733, 90 So. 145 (1921); see also Succession of Rhea, 227 La. 214, 78 So.2d 838 (1955). The evidence available for our review in the present case presents an even weaker case for a determination of residence than in McIntire, supra. See Carrere v. Castano, La.App., 395 So.2d 949.

The majority decision effectively operates as a judicial amendment of Article 3, § 4(A) of the Louisiana Constitution of 1974, by completely striking the Louisiana residency requirements contained therein and substituting a less stringent requirement of mere property ownership in the State. In an area of the law already fraught with inconsistency and a lack of any definite standards, this decision only further complicates the issue and provides no direction for the future.

I respectfully dissent.

SAMUEL, Judge,

dissenting.

In compliance with the requirement that we render judgment within twenty-four hours after argument in election contests and challenges (LSA-R.S. 18:1409 F), the following final paragraphs were inadvertently omitted from my dissent. I add them now as part of that dissent:

“Finally, LSA-R.S. 18:451, a statute enacted after the adoption of the 1974 Constitution and effective January 1, 1978, must be considered. That statute reads, in full:
“A person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in the election. Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office.” LSA-R.S. 18:451. [Emphasis mine].

The quoted statute clearly and unequivocally requires that a candidate-possess the qualifications for the office at the time he himself qualifies. This is in direct conflict with the action of the majority. Nor does the wording “Except as otherwise provided by law” make any difference here. As a constitutional matter the action of the majority effectively prevents the valid passage of any law which conflicts with that action.

In the absence of a holding of unconstitutionality, courts are required to follow the laws enacted by the legislature. Here, LSA-R.S. 18:451 has not been held unconstitutional; the question of whether or not that .statute is unconstitutional has not been raised by the appellee, nor has it been considered by this court. In my view, under these circumstances we are required to follow LSA-R.S. 18:451.

Accordingly, I respectfully dissent.”

      . The staff of the committee on style and drafting changed that wording to “the time of qualification as a candidate,” but did not direct attention to the change by footnote, as it did with other changes. Records, X1V-A, 81-82. Rule 50(2) of the convention, Records, IV, 397, prohibited any change in meaning by the style and drafting committee, so that it must be presumed that no such change was intended. The minutes of the style committee did not reflect any motion related to this change. Records, XIV-A, 11. The style committee’s version of the article reached the floor of the convention in the form of four amendments that were considered at once. Curiously, although § 4(A) spoke of “time of qualification,” § 4(B)’s special rules for post-reapportionment elections spoke twice of periods “preceding his qualification.” This interchange occurred: “Mr. Dennery Mr. Chairman, I suppose this should be asked of Judge Tate. It’s clear from this, Justice Tate, that the date of qualification is the final date at which a man can qualify ... not the date of his actual qualification? Mr. Tate Mr. Dennery, we thought it was clear, we needed some clarification because ... we thought it was clear that it meant at the time that he qualifies as a candidate for office, he meets the qualifications needed for the office. Mr. Dennery No. My question is, sir: do you mean at the actual date on which he personally qualifies or the last date on which he is permitted to qualify? Mr. Tate I understand your question. We didn’t think that was a problem because if he didn’t have it the first day, he would qualify on the last date, Mr. Dennery. We didn’t think it was a real problem.” Records, IX, 2509. As we read that interchange, it appears to us that Mr. Dennery was repeating the same concern earlier evidenced on the convention floor, that an independent should not be eligible with less residence merely because “his qualification” could come months later than the time of qualification of candidates who had to go through partisan primaries. And that is at least a fair reading of the words in § 4(A) “at the time of qualification as a candidate.” But perhaps Justice Tate was speaking of the words in § 4(B) “preceding his qualification” (in the original draft, “preceding his election,” a day uniform for all candidates), of which the most obvious reading would be the particular candidate’s date of filing his qualifying papers, rather than the several days of the period for qualification.
      We leave the decision of the meaning and legality of the words “preceding his qualification” to a case in which they apply, that is, a case in which a candidate does not have the requirements of § 4(A) and claims to have the lesser requirements of § 4(B) for residence in reapportionment-changed districts. This is not such a case.

      . It is possible, of course, for a person to maintain more than one residence. Charbonnet v. Hayes, 318 So.2d 917 (La.App., 4th Cir. 1975). This situation is not one of those instances.


text:
    STATE of Louisiana v. Murphy PICKETT.
    81-K-1744.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   Re: Rockwood Insurance, applying for writs of Certiorari, Parish of Ouachita, No. 38,650.

Granted. Trial court is ordered to release surety from all obligations under the bond. R.S. 15:85.

DENNIS, J. would grant the writ.

MARCUS, J. dissents from the order and would grant to reconsider State v. DeLaRose 391 So.2d 842 (La.1980)


author: McBRIDE, Judge. REDMANN, Judge, STOULIG, Judge,

text:
    STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. REB TRANSPORTATION, INC., Steven A. Gelmis and Fireman’s Fund American Insurance Companies.
    No. 11974.
    Court of Appeal of Louisiana, Fourth Circuit.
    Marshall W. Wroten, Robert J. Jones, David K. Balfour, Robert H. Marve, Anthony J. Bonfanti & Mario J. Porzio, Louisiana Dept, of Transp. and Development, Baton Rouge, for plaintiff-appellant.
    Robert M. Johnston and Gary M. Zwain, Johnston & Duplass, New Orleans, for defendants third-party plaintiffs-appellees.
    Before REDMANN, STOULIG and McBRIDE, JJ.
   McBRIDE, Judge.

The State of Louisiana through its Department of Transportation and Development filed suit against Steven Gelmis, his employer, Reb Transportation Inc., and their insurer, Fireman’s Fund American Insurance Company for damages occasioned to the “Carrollton Overpass”.

The Defendants filed a third party demand against the .State of Louisiana’s Department of Public Safety and the Division of State Police. After trial on the merits in the Civil District Court for the Parish of Orleans, the trial Court rendered judgment in favor of Defendants dismissing the State’s claim and also thereby dismissing the third party demand.

The State of Louisiana has appealed the adverse judgment. The State’s claim arises out of an accident which occurred on March 20, 1976. Reb Transportation, Inc., a Texas Corporation, was hired to transport two tanks from Port Worth, Texas to Avondale Shipyards in Harvey, Louisiana. The tanks were oversized; therefore Steven Gelmis, Reb’s driver, was required by law to stop at the Texas/Louisiana State line to obtain an oversized load permit. Gelmis, along with a fellow transport driver, Lonnie Courtney, stopped in Lake Charles at State Police Headquarters, Troop D, in order to acquire the permit. Gelmis testified that he measured his load at 14 feet — 10V2 inches; however, out of an abundance of caution, he listed the height as 15 feet — 2 inches on the permit. After paying $12.00, Gelmis was issued the permit which required him to follow Interstate 10, to Route 30, to Route 61 and then back to Interstate 10. After getting back on Interstate 10, Gelmis was to exit at Route 3152. After receiving the route instructions, Gelmis consulted the map which was in Troop D Headquarters. Lonnie Courtney and Gelmis asked the permit officer, E. L. Kershaw, various questions regarding the route to which Kershaw replied, “Just follow the highways and you will be all right.”

After spending the night in Lafayette, Gelmis started out for the New Orleans area on the morning of March 20, 1976. As he entered the New Orleans Metropolitan area, he consulted his own road map and the highway signs for Route 3152. Not realizing that he had passed the unmarked Route 3152, (which is commonly referred to as Clearview Parkway), Gelmis continued on into New Orleans where the tank he was carrying struck the Carrollton Overpass, causing $35,108.64 in damages.

It was stipulated by the State at trial on the merits that there existed no sign or other indication of clearance on the Carroll-ton Overpass; that there was no sign on 1-10 which revealed that the Clearview Extension was Route 3152; and there were no signs in the area of the Clearview Extension notifying drivers they were nearing Route 3152.

It is apparent that Gelmis relied upon the representation by Officer Kershaw that Route 3152 would be marked by a sign. At no time was Gelmis informed that Route 3152 was Clearview Parkway. Upon questioning by the trial court, Officer Kershaw testified that he did not realize Highway 3152 was Clearview Parkway. As a result of the erroneous information supplied to him, Gelmis passed up the unmarked Route 3152 and struck the Carrollton Overpass.

The State claims that its basis for recovery is based upon contract. That the defendants contracted with the State to use it’s Highways and must abide by the terms of the agreement. The pertinent provisions of the permit on which the State relies are: (1) That the applicant assumes responsibility for any damages caused to highways, bridges, etc., while using the permit; (2) That the permit is not a warranty by the State that the roads and bridges are capable of carrying the vehicle and load for which the permit was issued; and'(3) That the driver fully understands all the provisions and requirements of the permit, (i.e., he understands the routes provided).

We cannot agree with the State’s position that they are to be indemnified regardless of their negligence. The defendants contracted in good faith with the State for the right to use its Highway. Pursuant to the terms of the permit, they were to use specified Highways and Routes outlined on the permit. However, the State erred when it permitted an inexperienced Officer, (less than 6 months training), to issue the permit.

Permit Officer Kershaw instructed the driver to follow the Highway, and exit at a Route which he was unfamiliar with, and which was unmarked on the Interstate. Based upon Kershaw’s representation and the State’s omission in failing to provide a marker at Route 3152, the State led the defendant into a “trap”.

We agree with the appellee that in order to indemnify oneself against the consequences of one’s own negligence, the contract must expressly so provide. Polozola v. Garlock, Inc., 376 So.2d 1009 (La. S.Ct. 1979); Harper v. Brown & Root Inc., 383 So.2d 1079 (La.App. 3rd Cir. 1980).

There was no such provision in the permit issued to Steven Gelmis, and therefore the State is barred from recovery in this instance because of its negligence. The decision of the trial Court is affirmed.

REDMANN, J., concurring with reasons.

STOULIG, J., concurs.

REDMANN, Judge,

concurring.

It was fault on the state’s part to issue a permit requiring exit at an unmarked route when an also unmarked underpass of too little clearance stood in Gelmis’s path a few minutes beyond the unmarked exit. That act was at least contributory negligence and, at the time, a legal bar to recovery.

STOULIG, Judge,

concurring.

I concur.


author: GARRISON, Judge.

text:
    Charles MORTON and Dorothy Morton v. The JEFFERSON PARISH COUNCIL, et al.
    No. 12055.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 1981.
    Rehearing Denied Jan. 21, 1982.

      Barker, Boudreaux, Lamy, Gardner & Foley, Jerry L. Gardner, Jr., New Orleans, for plaintiffs-appellants.
    Hubert A. Vondenstein, Parish Atty., Daniel R. Martiny, Asst. Parish Atty., Gret-na, for Jefferson Parish Council et al.
    Before SAMUEL and GARRISON, JJ., and BAILES, J. Pro Tern.
   GARRISON, Judge.

This is an appeal from a judgment of the district court denying plaintiffs’ application for writs. That application sought an order compelling the Council to issue a permit, enjoining the defendants from denying plaintiffs’ permit application pending this litigation and enjoining the defendants from closing plaintiffs’ business. Plaintiffs appeal from the district court’s judgment denying the application.

In October of 1979, plaintiffs purchased a house at 1335 Barataría Boulevard in order to run a day care center. The property was zoned R-l, Single Family Residential. The premises were inspected and approved by the health department and fire department. Plaintiffs applied to the Council for a permit to run the day care center and the Council refused to accept their application. The first suit, JDC # 233-007, was commenced, resulting in an order directing the Council to accept the application, which it did on November 20, 1979.

On January 8, 1980, the Council held a public hearing on the plaintiffs’ application. Six people spoke in favor of the application; no one spoke against it. The Planning Commission then introduced a petition with 24 signatures in opposition to the application. No showing was made that the signatures were made by or corresponded to names of property owners whose property was within 300 feet of plaintiffs’ property. The Planning Commission also noted Resolution # 30949 which denied a public hearing on an application when two property owners living within 300 feet of the applicant’s property objected to the application for a zoning change. The Council adopted the recommendation of the Planning Commission that the application be denied.

On appeal, plaintiffs contend that the trial court erred in failing to issue a writ of mandamus and a permanent injunction and that the trial court erred in failing to find that the action of the governing authority was arbitrary or unreasonable. We agree.

At trial, scant evidence was presented. The defense evidence presented consisted of testimony of various Council members to the effect that in light of the large number of applications reviewed annually, they could not remember why this particular application was denied. The defense also presented testimony by the Parish Planner, Donald Terranova. Terranova, testified that the Planning Department recommended denial of the Application because of public opposition and because plaintiffs’ intended use was incompatible- with the rest of the area.

Upon review, we find that the governing authority acted both unreasonably and arbitrarily in denying plaintiffs permit when it failed to comply with its own procedures by failing to show that the petition contained signatures of property owners, as distinguished from lessees, and that the owners’ property was within 300 feet of plaintiffs’ property.

We further find that the Council acted arbitrarily and unreasonably in denying plaintiffs’ permit in light of the considerable commercial development in the area. Considering the non-integrity of the neighborhood and the compliance by the appellants with all interrelated agency requirements, there was no rebuttal showing that the nursery school would have any adverse effect on the neighborhood. It was shown that the denial by the council was based on the members’ avowed protection of the integrity of the neighborhood and the rejection of the application by the planning board.

The planning department director denied the application because the nursery school was a commercial use and is not compatible with the development permitted in an R-l residential district. Obviously, this is true; otherwise there would be no need for a zonal consideration. The planning department routinely recommends against such commercial uses in residential districts in order to uphold the integrity of the residential district. The record affirmatively shows that there is no residential integrity to preserve. Accordingly, the action of the Council was arbitrary and unreasonable.

For the reasons discussed, the judgment of the district court is reversed and we render judgment as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that a writ of mandamus is hereby issued in this proceeding, compelling the Jefferson Parish Council to issue to plaintiffs, Charles and Dorothy Morton, the requested variance permit for the operation of the day care center at Municipal Number 1335 Barataría Boulevard.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Jefferson Parish Council or anyone acting at its direction is hereby permanently enjoined from closing, hampering, or otherwise impeding the operation of plaintiffs’ business, pending the grant of the permit ordered above.

REVERSED AND RENDERED,

      . We note that the petition itself, is not contained in the record before this court.

      . The record indicates that the rest of the area includes:
      2 Seafood Restaurants and Bars
      1 Attorney’s Office
      1 Nursery School
      1 “Women’s Clinic”
      2 other Medical Complexes
      1 Gas Station
      12 (approximately) Vacant Lots
      1 Large Tract of vacant property consisting of a number of acres
      10 Houses


author: FORET, Judge.

text:
    Dee Ann Wells EVANS, Plaintiff-Appellant, v. Jack Darwin WELLS, Defendant-Appellee.
    No. 8408.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1981.

      Rivers & Willson, Thomas R. Willson and Larry W. Rivers, Alexandria, for plaintiff-appellant.
    David A. Sheffield, Alexandria, for defendant-appellee.
    Before GUIDRY, FORET and SWIFT, JJ.
   FORET, Judge.

The sole issue presented herein is whether United States military nondisability retirement pay is subject to state community property laws.

In this action, the wife has filed suit against the husband, who is the military retiree, seeking to have his retirement pay declared community property. The husband filed an exception of no cause of action, which was sustained by the trial court. The wife has appealed. We affirm.

Despite some cases from this circuit to the contrary , the matter has now been finally laid at rest by the United States Supreme Court in the recent case of McCarty v. McCarty, - U.S. -, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), wherein the Court concluded as follows:

“We conclude, therefore, that there is a conflict between the terms of the federal retirement statutes and the community property right asserted by appellee here. But “[a] mere conflict in words is not sufficient”; the question remains whether the “consequences of that [community property right] sufficiently injure the objectives of the federal program to require nonrecognition.” Hisquierdo, 439 U.S. [572], at 581-583 [99 S.Ct. 802 at 808, 809, 59 L.Ed.2d 1]. This inquiry, however, need be only a brief one, for it is manifest that the application of community property principles to military retired pay threatens grave harm to “clear and substantial” federal interests. See United States v. Yazell, 382 U.S. [341], at 352 [86 S.Ct. 500 at 506, 15 L.Ed.2d 404]. Under the Constitution, Congress has the power “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,” and “[t]o makes Rules for the Government and Regulation of the land and naval Forces.” U.S.Const., Art. I, § 8, els. 12, 13, and 14. See generally Rostker v. Goldberg, - U.S.-,-[101 S.Ct. 2646, 2651, 69 L.Ed.2d 478] (1981). Pursuant to this grant of authority, Congress has enacted a military retirement system designed to accomplish two major goals: to provide for the retired service member, and to meet the personnel management needs of the active military forces. The community property division of retired pay has the potential to frustrate each of these objectives.”

The retirement pay being received by the appellee-husband in the case sub judice is regular retirement pay, to which he became entitled after serving in the United States Air Force for a period in excess of twenty years. It is not disability retirement pay. Therefore, McCarty is dis-positive of the issues involved herein.

Appellant’s contention that McCarty is not applicable because it had not yet been decided at the time that this matter was heard in the trial court is without merit. It is well settled that an appellate court may, ex proprio motu, notice the failure of a plaintiff to state a cause of action. LSA-C.C.P. Article 927; Joiner v. Wilson, 377 So.2d 583 (La.App. 3 Cir. 1979); Campbell v. Scroggins, 191 So.2d 154 (La.App. 3 Cir. 1966). Thus, assuming arguendo that the trial court may have been in error before the rendition of McCarty, we are empowered, on appeal, to make our own finding of no cause of action. Accordingly, we find, as did the trial court, that plaintiff’s petition does not state a cause of action and therefore should be dismissed.

The judgment of the trial court sustaining the exception of no cause of action is affirmed.

Costs of this appeal are assessed against the appellant.

AFFIRMED.

      . E.g., Swope v. Mitchell, 324 So.2d 461 (La.App. 3 Cir. 1975); Moon v. Moon, 345 So.2d 168 (La.App. 3 Cir. 1977).
      For the latest expression by the Louisiana Supreme Court on the issue, see DeDon v. DeDon, 390 So.2d 937 (La. 1981) and Norsworthy v. Norsworthy, 397 So.2d 796 (La.1981), both of these decisions having been rendered on September 28, 1981.


author: GULOTTA, Judge.

text:
    Sue HOWELL v. NEW ORLEANS PUBLIC SERVICE, INC. and Clarence Williams.
    No. 12093.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Rehearing Denied Jan. 21, 1982.
    Writ Denied March 19, 1982.
    Wayne W. Yuspeh, Metairie, for plaintiff-appellee.
    C. B. Ogden, II, New Orleans, for defendants-appellants.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

In this automobile accident case, defendant complains that $28,000.00 in general damages and $1,581.00 in special damages are excessive. The sole issue, therefore, is quantum.

According to defendant, plaintiff’s soft tissue cervical and shoulder injuries required treatment for a period not in excess of two months, and plaintiff failed to establish a causal connection between the automobile accident and lower back pain resulting in a 5% disability. Defendant claims the low-back pain resulted from pre-exist-ing degenerative arthritis aggravated by a subsequent mopping incident that occurred three weeks after the September 22, 1977 automobile accident. Concerning the $500.00 special damage award for loss of plaintiff’s vehicle, defendant argues there was insufficient evidence in the record to establish the amount of property damage.

Our examination of the facts and circumstances in the record leads us to conclude that the $28,000.00 general damage award is excessive. We therefore reduce the amount from $28,000.00 to the sum of $8,000.00. We find no basis, however, to disturb the $500.00 award.

On the day following the accident, Sue Howell was seen by Dr. Emile Bertucci. Her complaints at that time were soreness and pain over her forearms, pain over the right side of her neck and pain in the right hip. Examination revealed tenderness and muscle spasms over the para-verterbral muscle in the back of the neck and particularly on the right side. Plaintiff exhibited on that first examination tenderness and muscle spasm also over the uppermost part of the right trapezius muscle and over the backside of the right shoulder. She exhibited pain in raising her right arm and on motion of her right shoulder. Plaintiff also suffered from tenderness over the chest wall and over the right hip, particularly noticeable in rotation of the right hip. Dr. Bertucci’s diagnosis was that this plaintiff had sustained an acute cervical strain, including primarily the muscles of the right side; strain of the uppermost portion of the right trapezius muscles between the neck and shoulder; a contusion and/or strain of the musculature of the right chest wall, and a contusion or strain of the ligaments about the right hip. Muscle relaxants, pain killers and physical therapy were prescribed for the cervical area.

Between September 23, 1977 and November 11, 1977, plaintiff was seen on nine occasions, either by Dr. Bertucci or his associate. She was last examined by Dr. Ber-tucci and discharged on January 6, 1978, after undergoing twenty-six physical therapy treatments between September 23 and the date of discharge. When discharged, Howell was relatively asymptomatic except that she complained of slight tenderness over the lumbosacral area. It was Dr. Ber-tueci’s opinion that the lower back problem, which he diagnosed as an acute lumbo sacral strain, resulted from the September 22, 1977 automobile accident. Although her complaints commenced approximately three weeks post accident, Dr. Bertucci was of the opinion that a reasonable medical certainty exists of a causal relationship between the lower back pain and the accident.

Dr. Irving Redler, an orthopedic surgeon, saw plaintiff at defendant’s request on April 17, 1978. At that time plaintiff complained of pain in the lower back when she bent backward or when pressure was exerted. It was Dr. Redler’s opinion that the lower back pain resulted from the degenerative changes in the lumbo sacral area that pre-existed the automobile accident. When advised that the lower back pain did not manifest itself until approximately three weeks after the accident, Dr. Redler stated “this would almost be near the outer limits of cause and effect between injury and the development of symptoms.” He indicated that the post-accident mopping incident could have induced strain on the lower part of the back. Nonetheless, he concluded that a trauma caused the onset of arthritic symptoms resulting in the soft tissue injury. It was his opinion that the recovery period for such an injury was approximately six to eight weeks and that plaintiff’s disability amounted to 5%. He added that even without the accident having occurred, the disability would have been the same, approximately 5%.

Dr. Stuart Phillips, also an orthopedic surgeon, first saw plaintiff on February 14, 1978. He made no physical findings upon examination of the neck area but did note abnormality in the area of the lower back. He also indicated, as did Dr. Redler, that the lower back area exhibited degenerative arthritic changes. His diagnosis was that the arthritis had pre-existed the accident, and was aggravated by trauma. According to Dr. Phillips, plaintiff’s prognosis was poor and it was likely that she would have intermittent episodes of pain upon mopping, stooping, or engaging in other activities. It was Dr. Phillips’ opinion based upon plaintiff’s history that there was reasonable medical probability that the September 22, 1977 automobile accident was the cause of the aggravation of the arthritis. He stated also that it was not uncommon for the lower back pain to manifest itself in three weeks post accident. Plaintiff was seen by Dr. Phillips on five occasions between February 14, 1978 and her discharge on February 29, 1980. His diagnosis on February 12, 1979 was “arthritis aggravated by trauma.” According to this physician, had plaintiff not suffered the trauma, the probability existed that she could have gone another ten or fifteen years with the arthritic condition remaining dormant. The 5% disability which he assessed had resulted from the aggravation.

Plaintiff testified that prior to the automobile accident she had suffered from no back pain and had been completely asymptomatic. Subsequent to the accident, her physical activities were curtailed and her ability to enjoy social activities was restricted up to and including the date of trial on March 11, 1980. Her testimony was corroborated by other witnesses.

The medical and lay evidence considered, as articulated herein, we conclude the $28,000.00 general damage award constitutes a clear abuse of the trial judge’s discretion. See Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The expert testimony establishes that plaintiff has suffered an accident related cervical and lum-bosacral strain aggravating her pre-existing arthritis in the lower back resulting in a premature 5% disability. We reduce the general damage award to the sum of $8,000.00, which we deem to be the “highest point” reasonably within the broad discretion of the trier of fact. See Carollo v. Wilson, 353 So.2d 249 (La.1977).

Concerning the $500.00 special award for loss of the automobile, we find no error or abuse of discretion by the trial court. Although plaintiff could not recall if an estimate of the damage to her vehicle had been made and none was introduced, she testified that her 1968 Chevrolet, which she had received as a gift, was in good condition and free of dents prior to the accident. Plaintiff’s boyfriend testified that the vehicle had been obtained for $500.00 and another vehicle. Photographs of the car taken after the accident demonstrate the extensive damage that resulted when the vehicle was struck by defendant’s bus and knocked into a utility pole. It is obvious from these exhibits that the dam-; age exceeded $500.00 and, under the circumstances, we find no error in the court’s special damages for “loss of the use of the car.”

For the foregoing reasons, we reduce the general damage award from $28,000.00 to $8,000.00 and amend the judgment in favor of plaintiff, Sue Howell, and against defendant, New Orleans Public Service, from the sum of $29,581.00 to the sum of $9,581.00. In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . The special damages include $500.00 for loss of use of plaintiffs automobile and $1,081.00 in medical expenses. Defendant does not contest the amount of medical expense, but argues that the $500.00 award for loss of the vehicle is excessive.

      . See South Central Bell Tel. Co. v. Branch, 360 So.2d 271 (La.App. 4th Cir. 1978); Robichaux v. Cade, 357 So.2d 849 (La.App. 4th Cir. 1978); Calecas v. Great Atlantic and Pacific Tea Co., Inc., 330 So.2d 619 (La.App. 4th Cir. 1976); Breckenridge v. Parker, 310 So.2d 124 (La.App. 4th Cir. 1975), writ refused, 313 So.2d 828 (La. 1975); Stoltz v. Continental Insurance Company, 231 So.2d 443 (La.App. 4th Cir. 1970); Henry v. Travelers Ins. Co., 398 So.2d 7 (La.App. 3d Cir. 1980); Lair v. Electric Mutual Insurance Company, 320 So.2d 262 (La.App. 3d Cir. 1975); Dupre v. South Central Bell Telephone Company, 318 So.2d 145 (La.App. 3d Cir. 1975); McDonald v. Fidelity & Casualty Co. of New York, 317 So.2d 267 (La.App. 3d Cir. 1975); Garrison v. State, Through Dept. of Highways, 401 So.2d 528 (La.App. 2d Cir. 1981); Mizell v. State, Through La. Dept. of Hwys., 398 So.2d 1136 (La.App. 1st Cir. 1981); Givens v. T & M Fertilizer Co., 340 So.2d 1057 (La.App. 1st Cir. 1976); O'Neal v. Southern Farm Bureau Insurance Co., 325 So.2d 887 (La.App. 1st Cir. 1976); Levron v. Dupre, 307 So.2d 107 (La.App. 1st Cir. 1975), writ granted, 310 So.2d 838 (La.1975), writ vacated 316 So.2d 395 (La.1975).


author: REDMANN, Judge.

text:
    NEW ORLEANS PUBLIC SERVICE, INC. v. Reuben C. PACE.
    No. 12496.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 2, 1981.
    Rehearing Denied Jan. 21, 1982.
    Edward H. Bergin, Jones, Walker, Wae-ehter, Poitevant, Carrere & Denegre, New Orleans, for plaintiff-appellant.
    David Band, A Professional Law Corp. David Band, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Plaintiff appeals from a judgment dismissing its suit for damage to a utility pole caused by an unattended motor home’s rolling down an inclined concrete driveway and into the pole. Defendant had parked the vehicle on the driveway four hours before the accident.

We reverse. We see no distinction between this case and Lefevre v. Allstate Ins. Co., 258 So.2d 397 (La.App. 4 Cir. 1972). Defendant argues that it appears that an 11-year-old neighbor, a known prankster if not vandal, probably caused the accident by shifting the transmission out of the “park” position. We conclude to the contrary that the risk of a neighbor child’s meddling with a vehicle is within the scope of the duty one has “[wjhen leaving [a] car unattended on an incline, ... to take the necessary steps to reasonably insure that the car would not roll backward down the incline and injure persons or property.” Lefevre, at 399-400.

It is immaterial that defendant was not the owner of the vehicle, because his liability arises out of his personal act of leaving the unattended vehicle on an incline and unsecured. (One sympathizes with defendant, who had bought the vehicle but had to give it up to the true owner when it proved stolen; but we repeat ownership is immaterial to this case just as it would be had defendant personally driven the vehicle into the utility pole.)

Reversed; judgment for plaintiff for the stipulated amount of $553.48 with interest from judicial demand and costs.


author: BOUTALL, Judge.

text:
    Jude CROSBY v. The GREAT ATLANTIC & PACIFIC TEA COMPANY.
    No. 5-96.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 3, 1981.
    Rehearing Denied Jan. 21, 1982.
    Writ Denied Feb. 19, 1982.
    J. Paul Demarest, Favret, Favret, De-marest & Russo, New Orleans, for Jude Crosby plaintiff-appellee.
    Claude D. Vasser, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for Great Atlantic and Pacific Tea Co. defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

Defendant, The Great Atlantic and Pacific Tea Company, appeals from a judgment awarding workman’s compensation benefits to Jude Crosby at the rate of $141.00 per week for four hundred weeks and imposing attorney’s fees of $500.00. The defendant contends that the plaintiff did not carry his burden of proof to justify such an award and Crosby answers the appeal asking that the amount of attorney’s fees be increased and expert fees be taxed as costs.

Crosby was employed by Atlantic and Pacific Tea to load and unload merchandise at its warehouse. On April 19,1979, Crosby was carrying a one hundred pound sack of coconuts when his foot became entangled with an empty pallet causing him to fall on his back. As a result of the accident, Crosby was taken to East Jefferson Hospital where he was examined and x-rays taken. The x-rays proved negative but the doctor believed that he had suffered a severe back sprain. A few days later, Crosby was instructed by Atlantic and Pacific Tea to go to the Fisher-Rabin Medical Center. Dr. Morris Fisher examined him and found an acute lumbosacral sprain. Dr. Fisher gave Crosby a prescription for pain and placed him on a regime of bed rest, tub soaks in hot water, and daily heat treatments in his clinic. Dr. Morris Levy of Fisher-Rabin examined Crosby on May 28, 1979, and he concluded that Crosby was having an exacerbation of his muscle sprain. In the meantime, Crosby had kept up with his heat treatments and bed rest.

On May 31, 1979, Fisher-Rabin referred Crosby to Dr. George Cary, an orthopedic surgeon, to render an opinion and suggest any possible treatment. Dr. Cary believed that Crosby had a strain in his lower back which was complicated by the fact that Crosby was 5' 10" and weighed 312 pounds. Dr. Cary recommended that he should be treated with bed rest, heat, mild exercise and a weight reduction program. Dr. Cary also saw Crosby on August 9, 1979, and recommended that the same measures should be followed which would allow him to eventually be able to return to work.

Dr. Fisher of Fisher-Rabin discharged Crosby on July 30,1979, and Crosby went to work the next day. After several hours, Crosby stopped work complaining of pain in his back. Crosby went back to Dr. Levy in August, and Dr. Levy felt that Crosby would probably be better in the middle of September. In the beginning of September, Crosby was referred by Dr. Levy to Dr. John Schuhmacher, a neurological surgeon. Dr. Schuhmacher testified that when he saw Crosby, he acted as if in great pain. Dr. Schuhmacher conducted a myelogram on Crosby on September 18, 1979, which proved normal. Dr. Schuhmacher saw Crosby for the last time on October 19, 1979, and he testified that Crosby was doing fairly well but that he complained of severe back pain which increased when he tried to walk. Dr. Schuhmacher offered no explanation for his pain and suggested that he return to work.

Dr. Levy testified that he examined Crosby several times in October and November, and he believed Crosby did not have anymore spasms. Dr. Levy testified that he finally discharged Crosby on November 26, because his examination showed that Crosby was normal. He also testified that from April 23 to November 26, Crosby received 133 diathermy treatments. On November 27, Crosby returned to work where he was told by the defendant’s warehouse manager that because he appeared to still be in pain, he could not return to work and that he could never return unless he was completely well. Crosby testified that at that time he was still having back trouble so in December he went to his own physician named Dr. John Watermeier, orthopedic surgeon. Dr. Watermeier testified that Crosby suffered from a moderate lumbar muscle spasm compounded by the fact that he was overweight. He testified that he treated Crosby conservatively with medication, exercise and weight loss. Dr. Watermeier classified Crosby as temporarily totally disabled.

Crosby received workmen’s compensation from the date of the accident until November 9, 1979. However, even after repeated demands, he did not receive compensation from the November 9 date until the time he was discharged by the employer’s doctor on November 26. It was for this reason that the court below assessed attorney’s fees of five hundred dollars.

We are of the opinion that the findings expressed by the trial judge are correct. In this instance, a man was injured while working at his job. He suffered an injury serious enough to warrant extensive treatment. Crosby underwent over one-hundred thirty heat diathermy treatments for his back pain. He went to see several doctors of the employer all of whom stated that the plaintiff had incurred a serious back sprain and that it would take time to heal. After the company doctors discharged him on July 30, 1979, and again on November 26, 1979, Crosby attempted each time to return to work but couldn’t because of his weakened condition. After the second attempt to return was unsuccessful, he decided to go to a doctor of his own. Copies of Dr. Watermeier’s reports, together with a demand for reinstatement of compensation benefits were furnished to the defendant. Defendant refused to resume payments, relying instead on the previous reports submitted by its own doctors, not having anyone re-examine Crosby after being informed of Doctor Watermeier’s findings.

We agree with the reasons for judgment of the trial judge which we quote:

“The issue presented to this Court for determination is whether an employer may deny compensation benefits to an employee by relying on prior medical reports of treating physicians, when the employer is in receipt of subsequent medical reports from a qualified physician indicating disability.
The Louisiana Supreme Court has addressed this very issue in Walker v. Gaines P. Wilson & Son, Inc. 340 So.2d 985 (1976). In Walker, supra, plaintiff likewise injured his back while working as a laborer, and benefits were terminated upon receipt of the treating physicians discharge report. In a well-written opinion by Justice Tate, the Court noted, ‘At this point, of course, the insurer was entitled to terminate compensation payments in reliance upon this physician’s report. However, if subsequent to an initial optimistic report, an insurer receives medical information indisputable showing disability at a subsequent date, the insurer may not blindly rely upon the early report and solely on its basis avoid penalties for arbitrary non-payment of compensation benefits indisputably due a disabled workman.’
Defendant herein does not deny receiving Dr. Watermeier’s reports indicating continuing disability; it merely relied on the prior reports of Drs. Fisher, Levy, Cary and Schuhmacher. It made no attempt whatsoever to re-examine plaintiff or to contact Dr. Watermeier personally to discuss in detail his disability diagnosis.
Based therefore on the most recent medical report, i.e., that of Dr. Watermeier’s and in light of the fact that no medical reports current to those submitted by Dr. Watermeier were presented by defendant for the Court’s consideration, the Court finds plaintiff to be totally disabled from performing the type of work he did prior to his accident. However, as the evidence before the Court indicates that plaintiff’s condition may well improve with time, the Court limits its finding of total disability to four hundred (400) weeks, beginning from April 19,1979, the date of plaintiff’s accident.”

On the question of attorney’s fees, the trial court felt, unlike the situation in Walker, that the medical evidence was such that a bona fide dispute did exist. Accordingly, the court denied attorney’s fees and penalties on the overall issue. However, the court granted attorney’s fees of $500.00 because the defendant refused to pay compensation to the plaintiff for the period of November 9 to November 26.

On Appeal, the appellant concedes failure to pay this period as a result of clerical error. Accordingly, we agree with the assessment of attorney’s fees. However, the appellee’s answer seeks an increase in the amount of attorney’s fees. We agree with the findings of the trial judge that a bona fide dispute existed as to whether the injury was the cause of the continued disability and cannot say he abused his discretion in refusing an award for the entire period of disability. Additionally, because this appeal involves the question of the four hundred week benefit period and not the two week period beginning on November 9, the award of $500.00 for attorney’s fees for that period is sufficient and should not be increased.

The other issue raised by answer to the appeal is that this court should set expert fees and tax them and other costs as court costs. This issue was the subject of a rule to tax costs which was continued indefinitely in the trial court from June 12,1981. Court costs and expert fees may be assessed at trial as part of a judgment or at a separate rule to show cause. See LSA C.C.P. 1920; R.S. 13:3666. This court" cannot hear evidence regarding costs and the rule below is still pending. Accordingly, we refer this to the lower court for a hearing to determine court costs and expert fees.

Costs of this appeal are assessed against appellant.

AFFIRMED, RULE FOR COSTS REMANDED.


author: SCHOTT, Judge. REDMANN, Judge,

text:
    Calvin BEVERLY v. Herbert SUMRALL, In his Official Capacity as Assistant Secretary for the Office of Employment Security of the Department of Labor, and Dixie Mill Supply Company, Inc.
    No. 12746.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1981.
    Michael P. Wolfson, New Orleans, for defendant-appellee Dixie Mill Supply Co., Inc.
    Willie D. Maynor, Baton Rouge, for defendant-appellee Herbert Sumrall.
    Peter D. Derbes, Derbes & Derbes, New Orleans, for plaintiff-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

Plaintiff, claiming unemployment compensation benefits, has appealed pursuant to LSA-R.S. 23:1634 from a judgment of the district court affirming the decision of the Board of Review and Appeals Referee disqualifying him for benefits.

Plaintiff was fired by his employer, Dixie Mills Supply Company Inc., on August 27, 1980, because he “could not be found in warehouse.” He was notified by the agency of his disqualification for unemployment benefits for the stated reason that: “You were discharged from your employment because of sleeping while on duty.” He took an appeal to the Appeals Referee and was served with a notice of the hearing which charged: “The claimant was discharged from his job for sleeping while on duty, which is misconduct connected with the work.” A hearing was conducted before the referee who affirmed the disqualification with the following findings:

“The facts and evidence presented at the hearing show that the claimant was discharged from his job because he could not be found for approximately two hours on the afternoon of August 27, 1980.' Although there may have been no work that needed the claimant’s immediate attention when he returned from lunch, the fact remains that the employer attempted to locate the claimant in the warehouse and pipe yard. It is concluded that the claimant’s discharge from employment was due to misconduct connected with the employment.”

There was no evidence that plaintiff was sleeping on the job. The evidence does show that he was in a truck in the warehouse yard waiting to be called to duty and that his co-worker and supervisor were looking for him in the warehouse. Even though he may not have been sleeping he was clearly guilty of misconduct in failing to be where he should have been and failing to respond to the call of duty which he should have heard.

Nonetheless principles of fundamental due process require that a claimant for unemployment compensation benefits be given a notice of the specific misconduct with which he is charged and for which he was disqualified, and the failure of providing such a notice warrants the reversal of the determination of disqualification. Banks v. Administrator of the Dept. of Employment, 393 So.2d 696 (La.1981) King v. Brown, 115 So.2d 405 (La.App. 2nd Cir. 1959). Because of this procedural defect claimant is entitled to a new hearing before the Appeals Referee.

However, claimant contends that he is entitled to an order reversing his disqualification because the burden of proof was on the employer to prove disqualifying misconduct, and it failed to carry that burden as in Banks v. Administrator of the Dept. of Employment, supra. This case is distinguishable from Banks in this respect: All of the evidence produced by the employer at the hearing supports the inference that if claimant was not sleeping on the job as he was charged he was deliberately ducking work while he sat in the truck knowing that his co-worker and supervisor were looking for him. We likewise distinguish this case from Landry v. Dept. of Employment Security, 272 So.2d 792 (La.App. 3rd Cir. 1973) in which the court held that the misconduct of a claimant in going to his employer two hours before his scheduled employment to report that he was unable to work that day because he had been drinking the night before did not justify denial of unemployment benefits. In the instant case the only logical inference from the evidence is that the claimant was on the premises hiding from those looking for him to assign work (unless he was sleeping in the truck) — surely disqualifying misconduct.

Accordingly, the judgment appealed from is reversed and set aside. The determination by the Board of Review of plaintiff’s disqualification is reversed because of improper notice to claimant, and the case is remanded to the Appeals Referee for a new hearing pursuant to proper notice being served on plaintiff.

REVERSED AND REMANDED.

REDMANN, Judge,

dissenting.

Our plaintiff employee told the Employment Security, office, in his application on the day he made his claim for unemployment benefits, that he was fired for “not being able to be found ... in warehouse .... I was fired cause no one knew where I was.” In his employer’s words on the written “employee change report” given to plaintiff, the reason for the firing was “could not find [plaintiff] Calvin since he punched in after lunch. [Supervisor] Chris Villa looked for him twice at all locations. [Co-employee] Willie Montgomery did not know where he was. Calvin claims he was in truck. May have been sleeping in truck.”

In that context, the administrative agent’s notice of disqualification (R.S. 23:1625) on grounds of “sleeping while on duty” may have been objectionable as inaccurate but cannot have misled plaintiff into supposing that he was fired for any other incident than the one described in the “employee change report.”


author: KLEES, Judge.

text:
    Alvin COULON, Individually and as Representative of the Estate of Keith Coulon v. GAYLORD BROADCASTING, Cosmos Broadcasting Corp., and Loyola University.
    No. 12570.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1981.
    Leonard A. Radlauer, New Orleans, for plaintiff-appellant.
    Stephen B. Lemann, Monroe & Lemann, New Orleans, for defendants-appellees.
    Before BOUTALL, BARRY and KLEES, JJ.
   KLEES, Judge.

This is an action for defamation. The trial court maintained defendant’s exceptions of no cause of action and ordered that “plaintiff, Alvin Coulon, individually and as representative of the estate of Keith Coul-on, be given fifteen (15) days from the date of this judgment to amend the petition to allege a cause of action against the defendants, failure of which shall result in dismissal of the petition in accordance with Article 932 of the Louisiana Code of Civil Procedure”. There was no subsequent judgment of dismissal.

Alvin Coulon has appealed and upon our own motion we issued an order to show cause why his appeal should not be dismissed on the grounds that the judgment appealed from is not an appealable judgment.

Code of Civil Procedure Articles 1841 and 2083 read as follows:

“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.” LSA-C.C.P. Art. 1841.
“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.” LSA-C. C.P. Art. 2083.

The judgment here appealed from is neither a final judgment nor an interlocutory judgment which may cause irreparable harm. It does nothing more than order or permit an amendment within a delay allowed by the court as provided by Code of Civil Procedure Article 934. Nor does it dismiss appellant’s suit, especially in view of the fact that, even after the period of leave to amend has passed, a plaintiff may still amend unless the defendant already has moved for dismissal. Roby v. Leonard, 209 So.2d 182 (La.App. 1st Cir. 1968). And, quite obviously under these circumstances, the judgment does not cause irreparable harm. Accordingly, we conclude the appeal must be dismissed. Spencer v. Burglass, 288 So.2d 68 (La.App.1974); Taylor v. Consolidated Rail Corporation, 391 So.2d 1351 (La.App. 4th Cir. 1980).

For the reasons assigned, the appeal taken in this matter by Alvin Coulon is dismissed. Costs of the appeal are assessed against Alvin Coulon. All other costs are to await a final disposition.

APPEAL DISMISSED.


text:
    Susan PARISH v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 12542.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1981.

      Floyd F. Greene, New Orleans, for defendant-appellant.
    David C. Stanhope, Reis, Stanhope & McKay, New Orleans, for plaintiff-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

On October 1, 1978, as the petitioner attempted to board a bus owned by defendant, NOPSI, she was caught in between the two sliding doors.

After trial, the trial court found that the bus driver closed the door of the bus without looking to see if there were any additional passengers attempting to board the bus. The trial court concluded that defendant breached the duty owed by it as a public carrier to its customers. Smith v. NOPSI, 391 So.2d 962 (La.App. 4th 1980). We find that this duty also includes those risks to which passengers are exposed while boarding.

The plaintiff at trial testified that the door cleared. She began to get up into the bus and as she did everything just smashed in on her. The defendants bus driver said he checked the door, it was clear, but then he looked at the handle to close the door and did not see the plaintiff until she was caught in the door. A passenger on the bus who testified for defendant stated the door began to close and she heard plaintiff say “Oh my God”, but did not know where she came from and did not see her until then.

Thus since neither the driver nor the witness saw plaintiff it is more likely than not that the driver failed to determine if there were any more passengers attempting to board the bus.

It is obvious that the finding of negligence on the part of NOPSI was based on a credibility evaluation by the trial judge. He was in a position to observe the demean- or of the witnesses and his factual finding based upon his credibility evaluations should not be altered unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

NOPSI also contends that the award of $3,500 for general damages should be reduced to $1,000 because the plaintiff did not introduce hospital records from Charity Hospital and the records of Dr. Genet who examined her soon after the incident. This argument lacks merit.

We cannot substitute our views on quantum in the absence of an abuse by the trial court of its much discretion, C.C. 1934(3), Coco v. Winston Ind. Ins., 341 So.2d 382 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979).

The evidence adduced at trial shows that plaintiff, 42 years of age, was injured on October 1, 1978 and underwent active medical treatment through February 16, 1979 for muscle spasm in the neck and lower back, dragging of her left leg and loss of disc space between C-6 and C-7.

In addition the petitioner testified that the pain she experienced dampened her social life and resulted in her having to forego her job as a cocktail waitress at Al’s Jazz Room. Based upon these factors and the pain experienced by this particular petitioner the award of $3,500 was not an abuse of the wide discretion of the trial court and will remain untouched on review.

AFFIRMED.


text:
    Arthur HARRIS v. CRESCENT CONSTRUCTION CORP.
    No. 12663.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 15, 1981.
    Harriet R. Campbell Young, New Orleans, for defendant-appellee.
    Gordon Hackman, Boutte, for plaintiff-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

Plaintiff-Appellant in this action, Arthur Harris, appeals the dismissal of his suit on an exception of prescription.

He urges that “the trial court erred in rendering judgment without having a hearing at which plaintiff and his counsel were notified to appear” and that “the trial judge erred in not giving plaintiff time to amend as mandated by C.C.P. 934”.

The record in this matter reveals that a petition was filed on August 31, 1978, and exceptions to the petition were filed by defendants on January 10, 1979. After several settings of the exceptions and continuances, the matters were finally set for October 3, 1980. When the matter came up on the docket, plaintiff-appellant did not appear, and the trial court granted the exception of prescription and dismissed plaintiff-appellant’s suit.

A careful review of the record reveals that no service of the notice of the October 3, 1980 hearing was made on plaintiff-appellant or his attorney. Defendant-Appel-lee urges in argument, that plaintiff-appellant has filed no motion for new trial, nor action for annullment of the judgment, and suggests that an appeal is not proper in this instance.

Dealing with this issue in an analagous situation this court held that a suit to annul by the plaintiff was a proper remedy when the plaintiff was not notified of a rule. Tanner v. Travelers Co., 389 So.2d 721 (La.App. 4th Cir. 1980) at 725.

Having reached this conclusion, we must now address the exception of no cause of action which was also maintained by the trial court. We have concluded that plaintiffs have a cause of action under the provisions of LSA C.C.P. Art. 2002(2) which provides that a final judgment shall be annulled if it is rendered,
“against a defendant who has not been served with process as required by law, and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;” Champagne was the defendant in a rule to show cause why his case against Travelers should not be dismissed. Plaintiff’s alleged that Champagne was served with no notice of the trial of that rule, yet his case was dismissed. We have concluded that the cited and partially quoted article does confer on plaintiffs a cause of action to annul that judgment dismissing Champagne’s suit.

It is quite clear that the court considered the term “defendant” in 2002(2) to include a plaintiff who is a defendant in a rule to show cause.

Nonetheless, the action of nullity is not an exclusive remedy. Here, the appellant was not properly cited because any pleading filed subsequent to the original petition must be served through the sheriff if a court appearance is required. See: Owens v. H & L Enterprises, 383 So.2d 23 (La.1980).

Accordingly, we conclude that the rule sustaining the exception of prescription be reversed and set aside and remand this matter to the trial court for a hearing on the exception of prescription after service in accordance with law.

REVERSED AND REMANDED.