text:
    John E. THIBAUT, et al., v. David D. THIBAUT, et al.
    No. 14367.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Writ Denied Jan. 18, 1982.

      Triche, Sternfels & Nail, Risley, Triche and Daniel J. Nail, Napoleonville, James D. Rives, Jr., New Orleans, for plaintiffs-ap-pellees.
    Felix H. Savoie, Jr., Napoleonville, for Margaret Thibaut Owens Watson.
    Carl W. Cleveland & Associates, Carl W. Cleveland, New Orleans, for defendants-appellants.
    Stanwood R. Duval, Jr., Houma, for Thomas A. Thibaut and Mercedes Thibaut Smith.
    . Graham Stafford, Benjamin R. Slater, Jr., Michael R. O’Keefe, III, New Orleans, Crawford, Goldsmith & Holdridge, Gordon R. Crawford, Gonzales, for James Henry Thibaut.
    Before ELLIS, LOTTINGER and PONDER JJ.
   PONDER, Judge.

This is a suit for partition by licitation of seven plantations located in three parishes.

We held in a previous hearing (346 So.2d 809) that venue was proper in the trial court.

Defendants, some of the co-owners, appealed from the judgment ordering the partition by licitation.

The issues are the applicability of LSA-R.S. 31:178 and the sufficiency of evidence required for partition by licitation.

Plaintiffs introduced evidence that a plaintiff owning 80/900 of the properties had donated an 8.88 percent mineral interest to her grandchildren. The mineral interest burdened all but one of the plantations.

Appellants contend that LSA-R.S. 31:178 is inapplicable to the present case due to the fact that the donated mineral rights are relatively insignificant, may soon prescribe and are of no proven value. We find that these arguments are without merit.

Louisiana jurisprudence has held that partition by licitation is the most practical way to deal with “known mineral lands”. Sellwood v. Phillips, 185 La. 1045, 171 So. 440 (1936); Gulf Ref. Co. v. Hayne, 138 La. 555, 70 So. 509 (1915). Under the Mineral Code a showing of the existence of a mineral right created by less than all of the co-owners creates a presumption against partition in kind without regard to the value of the mineral right conferred. Co-Ownership Under the Mineral Code, Twenty Second Annual Institute on Mineral Law, pp. 150, 151 (1975); Patrick v. Johnstone, 361 So.2d 894 (2nd Cir. 1978), writ denied 364 So.2d 600.

In the absence of evidence that the property could be partitioned in kind in accordance with LSA-R.S. 31:178, we find that the trial judge did not err in ordering partition by licitation of the properties burdened by the mineral rights.

This conclusion was supported by expert testimony that the plantations could not equitably and economically be divided into small and narrow parcels required to partition in kind among numerous co-owners with varying percentages of ownership.

The partition of the plantation not burdened by mineral rights, must be made in kind unless it be proved that the property is indivisible by nature or that it cannot be conveniently divided. Louisiana Civil Code Article 1339. A thing cannot be conveniently divided when a diminution of its value or loss or inconvenience to one of the owners would result. Louisiana Civil Code Article 1340.

To effect a partition in kind, the property must be divided into lots which are drawn by the parties. Louisiana Civil Code Articles 1364, 1367. There must be as many lots as there are shares or roots. Kisatchie Investors, Inc. v. Broussard, 397 So.2d 67 (2nd Cir. 1981); Tri-State Concrete Co., Inc. v. Stephens, 395 So.2d 894 (2nd Cir. 1981); Raceland Bank and Trust Co. v. Toups, 173 La. 742, 138 So. 652 (1931).

The plantation is relatively small but has about 3500 feet of river frontage. The plantation is currently earning money from the rental of space for anchoring barges.

The expert felt that the greatest value of the property was for industrial use and that division into smaller tracts would result in diminution of value due not only to the loss of revenue but also to the fact that larger tracts are more valuable for industrial use. Giving equal values of property along the river front would be very difficult due to the varying depths of the river.

In light of the expert’s testimony, and the complex fractional ownership involved, we agree that there is sufficient proof of inconvenience and diminution in value. The partition of the plantation should be by licitation.

For these reasons, the trial court’s decision is affirmed at the cost of appellant.

AFFIRMED.

      . After judgment a joint motion to dismiss the action as to two of the plantations was filed.

      . LSA-R.S. 31:178:
      “If land burdened by a mineral right or rights created by fewer than all of the co-owners of the land is judicially partitioned, a partition in kind may not be ordered unless it can be accomplished in such fashion that the allocation of tracts to the co-owners assures that both surface and mineral values of each tract are in the same proportion to the total value of the surface and the mineral rights respectively as each co-owner’s interest bears to the whole of the surface and the mineral rights respectively. Acts 1974, No. 50, § 178, eff. Jan. 1, 1975.”

      . La. C.C. Art. 1339:
      “When the property is indivisible by its nature, or when it can not be conveniently divided, the judge shall order, at the instance of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice and advertisements prescribed by law, and in the manner hereinafter prescribed.”

      . La. C.C. Art. 1340:
      “It is said that a thing can not be conveniently divided, when a diminution of its value, or loss of inconvenience of one of the owners, would be the consequence of dividing it.”

      . La. C.C. Art. 1364: '
      Whén the deductions have been made, and those to whom the collations were due have received them, as is said in the preceding article, the officer divides what remains into as many equal lots as there are heirs, or roots entitled to a share.
      No subdivision of the lots thus formed need be made between the individual coproprietors claiming under the same root.
      A partition thus made, even without a subdivision being made of the lots to which each root may be entitled, shall be a definitive partition. (Amended by Acts 1938, No. 407.)”
      La. C.C. Art. 1367:
      “The lots are formed by experts chosen for that purpose and sworn by the officer charged with the partition, and are afterwards drawn for by the coheirs.”


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Roy BERNARD v. AIR LOGISTICS, INC. and Offshore Logistics, Inc. and Houma-Terrebonne Parish Airport Commission.
    No. 14368.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Writ Denied Jan. 18, 1982.
    Donald R. Wilson, Jena, for plaintiff and appellant.
    Howard Daigle, Jr., New Orleans, and Charles Hanemann, Houma, for defendants and appellees.
    Before ELLIS, LOTTINGER and PONDER, JJ. ;
   LOTTINGER, Judge.

This is an appeal by plaintiff, Roy J. Bernard, from a judgment in favor of defendants Offshore Logistics, Inc., and its division Air Logistics, Inc., sustaining an exception of prescription to a suit for damages.

On May 30, 1980 plaintiff filed suit against Air Logistics, Inc., Offshore Logistics, Inc. (both collectively referred to as Logistics), and the Houma-Terrebonne Parish Airport Commission, alleging that on June 1,1979, he was injured when he fell in a parking lot on the premises of the Air Logistics Terminal at the Houma-Terre-bonne Airport. Logistics filed the peremptory exception of prescription arguing that the tort action has prescribed because the accident occurred on April 13, 1979, more than one year prior to suit being filed. The exception was supported by an accident report. The trial court agreed and maintained the exception.

Plaintiff-appellant assigns two specifications of error: (1) that this action is one in contract rather than in tort, and (2) Logistics bore the burden of proof that plaintiff knew or had constructive knowledge prior to a second accident that plaintiff would be totally and permanently disabled as a result of his injuries.

ASSIGNMENT OF ERROR NO. 1

Plaintiff-appellant argues that a contract for services existed between his employer and Logistics, and that he was either a party or a third party beneficiary to this contract. He argues that the contract imposed a duty upon Logistics to provide a safe area and Logistics breached this contractual duty; thus, his suit is one for breach of contract and the ten year prescriptive period of La.C.C. Art. 3544 is applicable.

In Federal Insurance Company v. Insurance Company of North America, 262 La. 509, 263 So.2d 871, 872 (1972), the Supreme Court said:

“It has been recognized by this Court on numerous occasions that when a party has been damaged by the conduct of another arising out of a contractual relationship, the former may have two remedies, a suit in contract, or an action in tort, and that he may elect to recover his damages in either of the two actions. In such cases, the prescription applicable is determined by the character which plaintiff gives his pleadings and the form of his action.”

See also Guillot v. Guillot, 346 So.2d 813 (La.App. 1st Cir. 1977), writ denied 350 So.2d 40 (La.1977).

In the Federal Insurance case, supra, the Supreme Court held that the ten year prescription was applicable to a suit for damages, and cited specific paragraphs of the plaintiff’s petition which alleged that the contract was the basis of the suit. But in the instant case the word “contract” is nowhere seen in the plaintiff’s petition or supplemental and amending petition. Nor can an action ex contractu be gleaned from any interpretation of the various allegations. The inescapable inference is that plaintiff based his suit on negligence thus evidencing an intention to pursue an action ex delicto.

ASSIGNMENT OF ERROR NO. 2

Plaintiff secondly contends that even if one year is the applicable prescriptive period, prescription had not yet run by May 30,1980 because his shoulder was rein-jured on August 13, 1979, and the second injury resulted in paralysis of the right arm caused in part by a weakened condition of the shoulder created by the first fall. Thus, the plaintiff argues the full extent of the injury suffered on April 13, 1979 was not known by him until August 13, 1979. Plaintiff additionally argues that prescription did not begin to run until August 13, 1979 under the doctrine of contra non va-len turn, citing Brown v. State, Department of Corrections, 354 So.2d 633 (La.App. 1st Cir. 1977).

The Brown case is factually distinguishable from the instant case. In Brown, a prisoner sued the state for damages suffered in the partial removal of his stomach as a result of the state’s refusal to provide him with a bland diet. Though the prisoner suffered with stomach pains for more than a year, we held that prescription did not begin to run until the stomach was partially removed by surgery. The basis of our holding was that the prisoner was unaware of the actionable nature of his ailment until the time that surgery was made a medical necessity. In the instant case there is no question that plaintiff knew almost immediately following his fall that he had suffered a serious injury to his shoulder. Plaintiff sought medical attention and even had surgery performed on his shoulder. Thus plaintiff knew he had suffered an actionable injury from the date of the first fall. The fact that plaintiff did not realize the full extent of his injury is not the controlling factor. Knowledge that he was hurt and that his injury was serious enough to warrant substantial medical attention is what controls. Lucas v. Commercial Union Insurance Company, 198 So.2d 560 (La.App. 1st Cir. 1967).

Therefore, for the above and foregoing reasons the judgment is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


author: PONDER, Judge.

text:
    Warren W. ARNETT v. TRACE DEVELOPMENT CORPORATION.
    No. 14385.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    R. Gray Sexton, Baton Rouge, for plaintiff-appellant.
    Emmett E. Batson, Baton Rouge, for defendant-appellee.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the dismissal of his suit for damages to his automobile caused by a falling tree.

The sole issue is the sufficiency of proof of ownership of property on which the tree falls.

We reverse and render.

Plaintiff’s vehicle was damaged by a falling tree while parked near his apartment on the night of a somewhat severe thunderstorm.

His cause of action is based on strict liability. Loescher v. Parr, 324 So.2d 441 (La. 1975). One of the elements to be proved is that defendant was the owner or custodian of the defective instrumentality. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978); Loescher v. Parr, supra.

The evidence of ownership was the testimony of an expert surveyor, who testified that, at the behest of plaintiff’s attorney, he performed a survey to determine upon whose property the tree was located. He used the certified copy of an act of sale to defendant which was provided by plaintiff’s attorney. The survey indicated that the tree was situated on the property described in the act of sale, which, however, was not introduced into evidence.

The trial court erred in concluding that the best evidence rule would require plaintiff to introduce the public records. In Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971), the court stated:

“Proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.”

The surveyor’s testimony as to ownership of the property was received without objection as was his survey showing that the decayed tree was located on defendant’s property. There was no contradictory evidence. Under these circumstances, plaintiff has established that it was more probable than not that defendant was the owner of the property in question. C.C. Art. 2275 is inapplicable under these circumstances because the evidence was not being adduced to effect a transfer of immovable property but to prove the fact of ownership; the title to the property was unaffected.

An expert in automobile damage appraisal testified the damage to plaintiff’s Toyota was $1,479.50. Defendant introduced no evidence to contradict this. Accordingly, we will award plaintiff $1,479.50 for the damage to his vehicle.

Plaintiff also claimed damages for a rental vehicle used while the repairs to his Toyota were being made. Because of the lack of proof, we reject this claim.

For the foregoing reasons, the judgment of the trial court is reversed. There is now judgment in favor of plaintiff and against the defendant in the sum of $1,479.50 together with legal interest from date of judicial demand and all costs. The expert witness fee of J. W. Campbell is fixed at $50.00 and cast as costs.

REVERSED AND RENDERED.

      . “[T]he court feels that the plaintiff has not established a prima facie case by a preponderance of the evidence. ‘The best evidence rule requires a plaintiff to establish his demand with the best proof the nature of the thing would permit.’ Al Smith’s Plumbing v. River Crest, Inc., 365 So.2d 1122 (La.App.4th Cir.1978).
      In this case, the best evidence would be the public records and without these records, the plaintiff has failed in sustaining his burden. ...”

      . C.C. Art. 2275:
      “Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.”

      .See Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963); Wampler v. Wampler, 239 La. 315, 118 So.2d 423 (1960); Bernheim v. Pessou, 143 La. 609, 79 So. 23 (1918); Fontenot v. Fontenot, 175 So.2d 910 (3d Cir.1965).


author: COLE, Judge.

text:
    Charles Leroy HANDY v. Frank L. WEST and Brenda M. West.
    No. 14386.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant Charles Leroy Handy.
    Walton J. Barnes, Steve Brainis, Joseph P. Macaluso, Baton Rouge, for defendants-appellees Frank L. West and Brenda M. West.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

This case involves an accident between motorist Frank West and pedestrian Charles Handy. Plaintiff-appellant Handy contends the trial court erred in failing to find Mr. West negligent, in failing to grant the motion for a new trial and in failing to allow appellant to proffer certain substantive testimony at the hearing on the motion for the new trial. We find no manifest error as to any of the three issues, therefore we affirm.

This litigation arose from the following facts. On November 24, 1979, at approximately 2:15 a. m., Charles Handy and his companion Marvin Parker were walking along Acadian Thru way West in Baton Rouge, en route from one nightclub to another. Mr. Handy testified they were facing the traffic, walking in the 56 inch wide bicycle lane when they were struck by Mr. West’s vehicle. Mr. West was traveling on Acadian Thruway West in a 1969 Cadillac. He testified he was driving at a slow to moderate speed in the right hand lane of traffic when the two men simply stepped out in front of him. Both pedestrians were injured and required hospitalization. There were no witnesses to the accident.

Officer Charles Stegall of the Baton Rouge Police Department arrived at the scene at approximately 2:30 a. m. and stated in his accident report the point of impact occurred when the pedestrian was about two-thirds into the right hand lane of traffic. The physical evidence showed Mr. West’s ear left skid marks eight feet long, indicating he was able to stop within a reasonably short distance and was therefore not exceeding the 45 mile per hour speed limit.

There were questions raised at trial concerning the possible intoxication of either party. The accident report contained a statement by Mr. Handy (which he gave at the hospital) that he had been out drinking and was on his way home. At trial he stated he had consumed only two mixed drinks. When questioned carefully he said he was not drunk, but agreed with the court’s comment that he was “in between” sober and drunk. Mr. West testified he had consumed one beer immediately prior to the accident.

The trial court apparently considered the conflicting testimony and found Mr. West’s version of the accident to be the most credible. The court noted the accident report indicated the pedestrians were walking in -the traffic lane when hit. The court rendered judgment in favor of the defendant and stated in oral reasons that it found plaintiff had failed to prove the defendant to be negligent.

Appellant argues the court erred in failing to find Mr. West negligent. We find no error in the conclusion of the trial court. As always, the trier of fact has a great deal of discretion in his fact finding process, particularly in relation to matters of credibility of witnesses. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). There was conflicting testimony and the trial court acted within its discretion in accepting one version over the other. The record establishes the trial court is not clearly wrong. Arceneaux, supra.

Because of the sufficient evidence to support the conclusions of the trial court, we find no merit in appellant’s argument that the court erred in refusing to grant a new trial on the grounds the judgment was clearly contrary to the law and evidence.

In his application for a new trial appellant contended he had only recently (since the trial) been able to locate Marvin Parker, the companion who was also injured in the accident. In his brief, appellant (through his counsel) alleged he had used “every effort within his power” to contact the witness before the trial but had been unable to do so. Therefore, he contended he was entitled to a new trial under La. Code Civ.P. art. 1972(2).

We find no merit in appellant’s contention he used “due diligence” to locate this witness. The witness had been listed on plaintiff’s pretrial order. At trial, appellant’s attorney made the following remark to the trial court.

“Your honor, I had subpoenaed Marvin Parker, but I understand he is paralyzed from the accident, and he has also moved, so I won’t be calling him.”

We find this statement made in open court to be a judicial admission that the attorney was not overly concerned about locating this witness and it certainly indicates he had not taken any extraordinary steps to do so. Further, in his brief appellant’s counsel stated he was unaware the subpoena had not been served until the day of the trial, September 22, 1980, nor was he aware that the address given for the witness by the police was erroneous until November 21, 1980. Obviously, if counsel was conducting a diligent search for this witness he could have checked to see if service had been made prior to trial. Likewise, his admission that he was unaware of the incorrect address until two months after trial indicates he made no other attempt to locate the witness prior to trial.

At the hearing on the motion for a new trial, the trial court allowed Mr. Parker to testify (by proffer) as to his whereabouts during this period of time. We find it unnecessary to consider this testimony because the record reflects clearly appellant’s counsel did not make a “due and diligent” search for this witness. The court acted correctly in refusing to grant a new trial on this basis.

Appellant’s final argument is that although the court denied the motion for a new trial he should have been allowed to proffer the testimony of Mr. Parker concerning the facts surrounding the accident. (He wanted to proffer this testimony at the contradictory hearing on the motion for the new trial.) This request is inconsistent with the trial court’s denial of the new trial. Since the motion for a new trial was denied, it would be inappropriate to allow the mover to introduce evidence concerning the substantive facts of the accident. To allow such testimony would make the court’s denial of the new trial meaningless. Once the court denied the new trial the plaintiff was precluded from offering any substantive evidence concerning the suit.

For these reasons, the judgment of the trial court is affirmed. Court costs are assessed against appellant.

AFFIRMED.

      . The plaintiff has prosecuted this suit in forma pauperis.

      . Art. 1972 reads as follows:
      “A new trial shall be granted, upon contradictory motion of any party, in the following cases:
      (1)Where the judgment appears clearly contrary to the law and the evidence;
      (2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
      (3) In jury cases, as provided in Article 1814.”


author: COVINGTON, Judge.

text:
    Belinda Marler STEPHENS v. Bryan S. STEPHENS, III.
    No. 14387.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    M. Glenn Hawkins, Baton Rouge, for plaintiff-appellant Belinda Marler Stephens.
    Richard L. McGimsey, Baton Rouge, for defendant-appellee Bryan S. Stephens, III.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the Family Court which granted permanent custody of the minor child, Hope Annette Stephens, now ten, years old, to the father after temporary custody had been awarded to the mother.

The issue on appeal is whether the granting of permanent custody to the father is in accordance with the best interest of the child. From our review of the record, we conclude that the lower court was within its discretion in awarding permanent custody to the father. We affirm.

The plaintiff, Belinda Marler Stephens, and Bryan S. Stephens, III, were married January 9,1970. One child was born of the marriage on October 20, 1970. She is the child involved in this custody dispute.

Due to marital difficulties, the parties obtained a divorce and each has remarried. The parties have been in the Family Court on a number of occasions concerning custody of Hope Annette. For example, on June 27,1979, judgment was obtained confirming judgment awarding temporary custody to the father, and ordering a social study to be conducted by the Family Court Center to determine permanent custody. Subsequently, on September 26, 1979, the wife was awarded temporary custody. On September 5, 1980, Mr. Stephens petitioned for permanent custody of Hope Annette. Hearing was held before Judge Anthony J. Graphia on October 31,1980, with judgment signed on November 3, 1980, granting Bryan Stephens, III, permanent custody of the minor child, Hope Annette Stephens. It is from this judgment that the wife has appealed.

LSA-C.C. art. 157, as amended, provides the applicable law concerning the granting of custody. This article in pertinent part provides:

“A. In all cases of separation and divorce, and changes of custody ... permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent ....”

The standard of appellate review of custody cases was recently discussed by the Louisiana Supreme Court in Bordelon v. Bordelon, 390 So.2d 1325, 1329 (La.1980), as follows:

“This Court has clearly stated that in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. Fulco [259 La. 1122, 254 So.2d 603], supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is ‘clearly wrong’. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact.”

After review of the record in light of the above cited principles, we conclude that the award of permanent custody of the minor child to the father was within the discretion of the trial judge and was in the best interest of the child.

There is no merit in appellant’s argument concerning her non-appearance. The record reflects that after numerous continuances in this matter, personal service was had upon appellant ordering her to show cause why permanent custody should not be awarded the father. A futile attempt was made to obtain another continuance. Without verification of it being granted, it was incumbent upon her or her counsel to appear at the hearing. The alleged understanding between counsel is of no moment. It is not the function of opposing counsel to grant a continuance. Only the court can do so and it is the duty of the mover to become informed of the court’s decision in such matters. Without actual knowledge of a continuance, the appearance is mandated. There is no justification contained in the record for the wife’s failure to appear at the re-fixed permanent custody hearing. In any event, the record amply supports the conclusion that the best interest of this minor child will be served by granting permanent custody to the father. The judgment is affirmed at the appellant’s costs.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Michael ALOISE, Jr. v. Ray Lee JONES, Sr., Dresser Industries, Inc. and the Continental Insurance Company.
    No. 14392.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Wilson C. Krebs, Covington, for plaintiff-appellant.
    William 0. Bonin, Landry, Watkins & Bonin, New Iberia, for defendants-appel-lees.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Plaintiff, Michael Aloise, Jr., instituted this action seeking recovery for injuries which he allegedly suffered as a result of a vehicular collision. Named as defendants were the driver of the other vehicle, Ray Lee Jones, Sr.; Jones’ employer, Dresser Industries, Inc.; and the employer’s insurer, The Continental Insurance Company. Jones died prior to trial and no substitution of parties was made.

After trial before a jury, judgment was rendered in accordance with the verdict in favor of defendants, dismissing plaintiff’s suit at his cost. Plaintiff moved for a new trial, asserting that the trial court erred in admitting the testimony of an expert witness and that the jury’s verdict was contrary to the law and the evidence. The motion was denied and plaintiff perfected this appeal based upon the same arguments urged in his motion for new trial.

EXPERT TESTIMONY

The record reveals that plaintiff and defendants propounded interrogatories to one another. In their interrogatories both sides requested to be informed of the identities of all expert witnesses to be called by the other side. Neither side answered the other’s interrogatories but no motions to compel discovery were filed. See LSA-C. C.P. Art. 1469.

Following a pre-trial conference, the parties entered into a pre-trial order which listed the witnesses they anticipated calling to testify at trial. The pre-trial order authorized the addition of other witnesses if reported to opposing counsel not less than ten days prior to trial. Rebuttal witnesses were specifically excluded from the ten day notice requirement.

Trial began on October 30, 1980. More than ten days prior to trial, on October 16, defendants filed a supplemental designation of documents and witnesses. This designation listed Dr. William H. Tonn, of Houston, Texas, as an expert witness in the field of accident reconstruction.

On October 20, 1980, plaintiff filed a motion to strike this supplemental designation and a motion in limine to determine the admissibility of Dr. Tonn’s testimony. Plaintiff requested that a hearing be held on these motions prior to trial, but no such hearing was ever held. No mention of these motions was made at trial and the testimony of Dr. Tonn was received without objection.

Plaintiff now contends on appeal that Dr. Tonn’s testimony was erroneously admitted because he was not listed as a witness in response to interrogatories or in the pre-trial order. Pleading surprise and prejudice, plaintiff submits that the notice given by defendants that Dr. Tonn would testify (although admittedly made in compliance with the pre-trial order) was so late as to prevent him from deposing the doctor and preparing a rebuttal to his testimony. Plaintiff further argues that he was prevented from producing a witness to counter the testimony of Dr. Tonn because he was unable to give notice thereof at least ten days before trial, as required by the pre-trial order.

We note that plaintiff did not file a motion to compel discovery in order to secure answers to his interrogatories. See LSA-C. C.P. Art. 1469. He did not move for a continuance of the trial in order to obtain more time within which to depose Dr. Tonn and prepare a rebuttal to his testimony. Nor did plaintiff insist upon a hearing and ruling on his motions prior to trial or even object to the testimony of Dr. Tonn at trial. Finally, we also note that the ten day notice requirement in the pre-trial order did not prevent plaintiff from presenting a rebuttal witness, since such witnesses were specifically exempted from that requirement.

Under these circumstances, we find that plaintiff may not now complain on appeal of the admission of Dr. Tonn’s testimony at trial.

JURY’S VERDICT

Plaintiff submits that the jury’s verdict was contrary to the law and the evidence. The jury’s verdict, in the form of an answer to a special interrogatory, was that Jones, the driver of the Dresser Industries truck, was not guilty of negligence which was a proximate cause of the accident.

We have thoroughly reviewed the record. The jury’s conclusions are not clearly wrong or manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). Moreover, on the basis of these factual conclusions, there is no error of law in the jury’s verdict.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Kathleen Murphy, Wife of/and Herbert J. KLING v. Paul W. COLLINS.
    No. 14410.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      Wayne W. Foley, New Orleans, for plaintiffs and appellees.
    Prentiss Cox, Houma, for defendant Paul W. Collins.
    Lloyd T. Bourgeois, Thibodaux, for defendant and appellant State Farm Fire & Cas. Co.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Plaintiffs-appellees, Herbert J. and Kathleen M. Kling, husband and wife, filed suit for damages against Paul W. Collins, defendant-appellee, who, in turn, filed a third party demand against appellant, State Farm Fire & Casualty Company, his homeowners insurer. State Farm denied coverage on the basis of an exclusionary clause in the policy. The trial court rendered judgment in favor of plaintiffs and against Paul Collins and State Farm Fire & Casualty Company, jointly, severally and in solido, awarding Mrs. Kling $15,000 in general damages and Mr. Kling $4,387.15 in special damages. State Farm appealed the trial court’s judgment. The Klings and Mr. Collins did not appeal nor did they file an answer to the appeal taken by State Farm.

In the late afternoon of May 22, 1976, Mrs. Kling and her mother, Mildred Mad-ere, brought Florence Collins, wife of Paul Collins and sister of Mildred Madere, home from the hospital to her residence in Hou-ma, Louisiana. Mr. Collins had formerly been married to Mildred Madere and Mrs. Kling had been his stepdaughter. The record shows that ill feelings existed between Mr. Collins and Mrs. Kling for many years. Mr. Collins stated he did not want Mrs. Kling in his home. On this occasion, after he had told her to leave his house, Mr. Collins contends that Mrs. Kling began shouting and making gestures toward him whereupon he shoved her in an effort to make her leave his house. Mr. Collins further contends he did not intend to harm Mrs. Kling.

Mrs. Kling contends defendant intentionally pushed her to the floor in an attempt to remove her from his house. As a result of her fall, she sustained a wrist injury.

State Farm contends the trial court erred in not applying the exclusionary clause contained in Collins’ homeowners policy. The clause reads as follows:

“THIS POLICY DOES NOT APPLY:
1. Under Coverage E — Personal Liability. ..
(f) TO BODILY INJURY OR PROPERTY DAMAGE WHICH IS EITHER EXPECTED OR INTENDED FROM THE STANDPOINT OF THE INSURED.”

State Farm has the burden of proving the applicability of the exclusionary clause in its homeowners policy, von Dameek v. St. Paul Fire & Marine Ins. Co., 361 So.2d 283 (La.App. 1st Cir. 1978); Briley v. Union National Life Insurance Co., 246 So.2d 265 (La.App. 1st Cir. 1971). It must therefore prove that the bodily injury sustained by Mrs. Kling was intended or expected from the standpoint of the insured, Mr. Collins.

State Farm relies primarily on the ease of Kipp v. Hurdle, 307 So.2d 125 (La.App. 1st Cir. 1974), writ denied, 310 So.2d 643 (La. 1975). In Kipp, supra, the court was faced with a factual situation wherein the insured confronted her husband and another woman (plaintiff) dancing in a bar. The insured proceeded to grab plaintiff by her hair and shoved her to the floor, resulting in injuries to plaintiff. The insured admitted that she intended to grab plaintiff’s hair and to shove plaintiff to the floor, but denied that she intended to injure her. This court affirmed the judgment of the lower court against Mrs. Hurdle stating that “it is presumed she (the insured) intended the consequences of her aggressive action.” We further held therein that the exclusionary clause (worded exactly like the one in the present case) was applicable and no coverage existed.

State Farm therefore argues that because Mr. Collins admits pushing Mrs. Kling, it must be presumed he intended the consequences of his act and the exclusion in the policy should be applied. The trial judge in concluding otherwise stated:

“While it is beyond question that defendant did push Mrs. Kling, the court is of the opinion that Mr. Collins did not intend any harm or injury to the lady. After considering the evidence carefully, the court has concluded that Mr. Collins in pushing or shoving the plaintiff did not intend any real harm or injury to her, but rather only wanted her to leave his home. Having so concluded, the court believes the exclusionary clause in Mr. Collins’ homeowners insurance policy is not applicable to the facts of this case since the bodily injury to Mrs. Kling was neither expected nor intended from the standpoint of Mr. Collins. The homeowners insurance policy covers the injury and damages incurred by the plaintiffs and the exclusionary clause in the State Farm Fire and Casualty Company poliby is not applicable. (See Sherwood v. Sepulvado, [La.App.] 362 So.2d 1161.)”

In Kipp, supra, the insurer proved that the insured intended to pull plaintiff’s hair and intended to force her to the floor. Injury necessarily follows from such actions.

In this case, the insurer only proved that its insured pushed plaintiff in an attempt to get her out of his home. The insurer herein did not prove that its insured intended to shove plaintiff to the floor or intended to harm or injure her in any manner.

State Farm, under the facts of this case, did not carry its burden of proving that Mr. Collins intended to injure Mrs. Kling. We cannot presume, as we did in the case of Kipp, that Mr. Collins intended the consequences of his act since the circumstances of this case and the nature of his actions are not so aggressive as to reasonably justify such a presumption. The exclusionary clause should apply only when the “act” is of such a nature that injury must necessarily be expected. For example, see Tobin v. Williams, 396 So.2d 562 (La.App. 3rd Cir. 1981) and Kipp, supra.

Further, exclusionary clauses in insurance contracts are strictly construed against the insurer. Snell v. Stein, 261 La. 358, 259 So.2d 876 (1972); Illinois Central Gulf Railroad Company v. Travelers Insurance Company, 374 So.2d 137 (La.App. 1st Cir. 1979). The exclusionary clause sought to be enforced herein does not preclude liability for an expected or intended “act”, but rather for an expected or intended “injury”.

The facts of this case are more analogous to those of the Sepulvado case, supra, cited by the trial judge in his reasons for judgment. Sepulvado holds that when the “act” is intentional, but the “injury” is not, the exclusionary clause is not applicable.

We concur with the trial judge’s conclusion that State Farm failed to carry its burden of proof.

State Farm next contends that the amount awarded to plaintiff for damages is so excessive it constitutes an abuse of the trial judge’s discretion.

Mrs. Kling suffered a fractured wrist, together with irritation of the tendons and ligaments, and a loss of range of motion. Dr. Haddad, her treating physician, estimated she had a ten to fifteen percent residual disability of the hand based on loss of range of motion. The doctor was also of the opinion that the problems with her hand were more of a psychiatric problem than an orthopedic problem.

Dr. Lancaster, her psychiatrist, was of the opinion that Mrs. Kling was suffering from “conversion reaction” which he defined as a psychiatric illness where symptoms present themselves in an individual by mimicking physical illness or physical complaints. He further explained that Mrs. Kling did indeed feel exaggerated pain even though there was no physical basis for it. Mrs. Kling suffered from increased tension and had nightmares as symptoms of her psychiatric problems which were all related to the wrist injury.

Damages have been awarded to persons who suffered from a traumatic neurosis. Jackson v. United States Fidelity & Guaranty Company, 382 So.2d 223 (La.App. 3rd Cir. 1980), writ denied 385 So.2d 275 (La. 1980); Breaux v. Roy Young, Inc., 397 So.2d 1384 (La.App. 3rd Cir. 1981); and Kraaz v. La Quinta Motor Inns, Inc., 396 So.2d 455 (La.App. 4th Cir. 1981).

We are unable to conclude that an award of $15,000.00 for the described injury is an abuse of the trial judge’s great discretion in fixing the amount of damages. La.C.C. 1934. Reck v. Stevens, 373 So.2d 498 (La. 1979).

Though not complained of by State Farm, we must note that the trial court’s judgment was improperly cast. Plaintiffs, never having sued State Farm, cannot recover judgment against the insurer. Plaintiffs’ judgment against defendant is final and the judgment against State Farm is set aside and there is judgment rendered herein in favor of defendant and third party plaintiff, Mr. Paul Collins, and against third party defendant, State Farm Fire & Casualty Company, in the full sum of $19,387.15 plus $360.00 in expert fees, with legal interest thereon from date of judicial demand, until paid, and for all costs of these proceedings.

For these reasons, the judgment of the trial court is amended in part and affirmed at appellant’s costs.

AMENDED AND AFFIRMED.


text:
    L & L SANDBLASTING, INC. v. AMERICAN SOUTHERN INSURANCE COMPANY.
    No. 14412.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Writ Denied Jan. 18, 1982.
    J. Winston Ardoin, Eunice, for plaintiff-appellant L & L Sandblasting.
    R. Loren Kleinpeter, Baton Rouge, for defendant-appellee American Southern Ins. Co.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Plaintiff, L & L Sandblasting, Inc., instituted this action against its insurer, American Southern Insurance Company, alleging that defendant has defaulted on its obligations under an insurance policy and seeking return of the premium paid. After trial on the merits, the district court rendered judgment for defendant dismissing plaintiff’s demand. Plaintiff has taken a devolutive appeal from that judgment. We affirm.

In March of 1977, plaintiff-appellant, L & L Sandblasting, Inc. (“L & L”) entered into a contract to do certain sandblasting and painting work for Shell Oil Company (“Shell”). The Shell “Work Order Conditions” required that plaintiff secure a liability insurance policy. The work order agreement also contained the following provision:

“Contractor shall indemnify Shell against all loss or damage arising out of the negligence of Contractor or any subcontractor and not within Contractor’s indemnity in the next following sentence. Contractor shall indemnify and defend Shell and its employees and agents against all claims, suits, liability and expense on account of injury or death of persons including employees of Shell or Contractor, and subcontractors and their employees or damage of property arising out of or in connection with performance of this Order, and not caused solely by Shell’s negligence without any contributory negligence or fault of Contractor or any subcontractor. Shell may participate in the defense of any such claim or suit without relieving Contractor of any obligation hereunder.”

L & L secured a contractual liability insurance policy from defendant-appellee, American Southern Insurance Company (“American Southern”). The “Designation of Contracts” section of the policy provided as follows:

“The policy covers only the work order agreement between Shell Oil Co. and the named insured (attached hereto). All other contracts must be approved by the company prior to coverage being afforded.”

The insurance policy provided coverage as follows:

“The company will pay on behalf of the insured all sums which the insured, by reason of contractual liability assumed by him under a contract designated in the schedule for this insurance, shall become legally obligated to pay as damages because of
Y. bodily injury or
Z. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient ...” (Emphasis added.)

Herman Jason, an L & L employee, was injured while working on the Shell Oil Company job. Jason filed suit against Shell in Federal District Court, alleging that he was injured aboard a Shell Motor Vessel located off the Louisiana coast in the Gulf of Mexico. Shell called upon L & L to honor the indemnity provision of the work order cited above. Shell filed a cross-claim and third party complaint against American Southern seeking indemnity for any sum which it might have to pay Jason as well as expenses for the costs of defending Jason’s claim.

American Southern offered to defend L & L in the Jason matter, but refused to defend and indemnify Shell. American Southern’s attorney notified L & L that it was not legally obligated to pay the Jason claim because the indemnity provision of the work order agreement was void under Section 5(b) of the Longshoremen and Harbor Workers Compensation Act. L & L subsequently paid Jason $9,000.00 in settlement of his claim, in order to maintain good business relations with Shell.

L & L filed suit against American Southern seeking return of the insurance premium ($28,000.00) and attorney fees. Alternatively, L & L sought reimbursement for the $9,000.00 paid to Herman Jason in settlement of his claim.

The district court rendered judgment for the defendant dismissing plaintiff’s suit. The trial court stated that plaintiff had failed to prove that defendant had defaulted or that there was no contract of insurance. The court found that the defendant stood ready to fulfill its obligations under the policy, i.e., to defend L & L, but that plaintiff waived its defenses and settled the suit as part of its customer relations with Shell. L & L has devolutively appealed the judgment of the district court. Appellant contends that it presented ample evidence to show that there was no valid contract of insurance because there was no meeting of the minds of the parties. Alternatively, appellant contends that if there was a contract of insurance, American Southern defaulted on its obligations under that contract.

L & L relies upon the testimony of its President, Richard D. LeDoux, to establish that there was not a valid contract of insurance. LeDoux testified that L & L would not have purchased the insurance policy unless the indemnity and hold harmless agreement were covered. L & L asserts that the coverage of the indemnity provision was the “cause” of the contract as that term is used in LSA-C.C. art. 1896, and that its consent was vitiated due to the vice of error as to the nature and object of the contract.

In order to invalidate a contract for error, it is necessary that the error bear on the principal cause of the contract. This requirement is contained in LSA-C.C. art. 1823, which provides as follows:

“Errors may exist as to all the circumstances and fact which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.”

The insurance policy issued by American Southern covered a multitude of risks. The record clearly indicates that L & L sought coverage of all operations which were undertaken pursuant to the work order agreement. Under the section of the insurance policy entitled “Description of Hazards” the policy provided coverage for the following operations and premises:

“17235—Painting, decorating or paper hanging including shop operation. N.O.C. 42264—Contractors permanent yards—maintainance (sic) or storage of equipment or materials.”

Thus, the policy provided insurance coverage for a number of areas in which L & L was exposed to liability aside from the work order indemnity provision.

The trial court concluded that plaintiff did not bear its burden of proving that there was not a binding contract of insurance. This conclusion is obviously based on a finding that coverage of the indemnity provision was not the primary cause for L & L to obtain the insurance policy. In light of the fact that the contract of insurance covered such a wide range of other risks, this finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Having concluded that the trial court was correct in holding that plaintiff did not bear its burden of proving that the insurance contract was invalid, we turn our attention to the questions of whether American Southern defaulted on its obligations under the policy.

The district court held that plaintiff failed to prove that American Southern defaulted on its contract of insurance. The court found that defendant stood ready to fulfill its obligations, i.e., to defend L & L but that L & L elected to waive its defenses and settle the Jason claim. The record fully supports these findings of the trial court.

Portions of the record of the Federal Court action filed by Herman Jason were introduced into evidence. This record contains admissions of fact that establish that Jason was working on a fixed platform located on the outer continental shelf. By virtue of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333(b), Jason’s claim was within the purview of the Longshoremen and Harbor Workers Compensation Act.

Section 5(b) of the Longshoremen and Harbor Workers Compensation Act provides:

“(b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedor-ing services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” (Emphasis added.)

American Southern relied upon this statute in denying liability based upon the indemnity provision of the Shell work order agreement.

In a letter introduced into evidence, American Southern, through its attorney, advised L & L that it had a defense against the Shell claim based upon 33 U.S.C.A. § 905(b). In the same letter, American Southern offered to defend L & L in the Jason litigation and agreed to pay the Shell claim if Shell was successful after trial on the merits. Richard LeDoux, L & L’s President, testified at trial that his company decided to settle the Jason claim, rather than assert its defenses against Shell, because Shell was an important customer.

Our review of the record reflects that the trial court was correct in finding that American Southern did not breach its contract of insurance. American Southern’s obligation was to pay on behalf of its insured all sums which the insured was “legally obligated” to pay and to defend the insured against any suit seeking such damages. American Southern stood ready to honor these obligations at all times and should not be held liable for a business decision made by L & L.

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are assessed against plaintiff-appellant, L & L Sandblasting, Inc.

AFFIRMED.

      . LSA-C.C. art. 1896 provides:
      “By the cause of the contract, in this section, is meant the consideration or motive for making it; and a contract is said to be without a cause, whenever the party was in error, supposing that which was his inducement for contracting to exist, when in fact it had never existed, or had ceased to exist before the contract was made.”

      . LSA-C.C. art. 1841 provides:
      “Error as to the nature of the contract will render it void.
      “The nature of the contract is that which characterizes the obligation which it creates. Thus, if the party receives property, and from error or ambiguity in the words accompanying the delivery, believes that he has purchased, while he who delivers intends only to pledge, there is not (no) contract.”

      .43 U.S.C. § 1333(b) provides, in pertinent part, as follows:
      “(b) With respect to disability or death of an employee resulting from any injury occurring as the result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf, compensation shall be payable under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act.”

      . For a discussion of the policy considerations and legislative history behind this indemnity agreement prohibition, see Judge Rubin’s opinion in Meredith v. A & P Boat Rentals, Inc., 414 F.Supp. 788 (E.D.La., 1976).

      . American Southern’s attorney also advised L & L that it had an additional defense because Shell’s negligence in causing the accident was the sole negligence, a condition specifically excluded by the indemnity provision of the work order agreement.


text:
    Kenneth E. DEASON v. MOBIL OIL CORPORATION.
    No. 14413.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Daniel L. Avant, Baton Rouge, for plaintiff-appellant, Kenneth E. Deason.
    John S. White, Jr., Baton Rouge, for defendant-appellee, Mobil Oil Corp.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Kenneth E. Deason, plaintiff-appellant, appeals the judgment of the trial court denying termination pay to him from his former employer, Mobil Oil Corporation (Mobil), defendant-appellee.

Under the terms of Mobil’s Termination Allowance Plan, an employee is eligible for such allowance unless he is discharged for cause or behavior prejudicial to his employer. Mr. Deason had been employed with Mobil since January 1,1966, and in the Real Estate Department since May 1, 1966.

Mobil has a published policy entitled “Conflicts of Interest”, which states in pertinent part:

“... any direct or indirect interest in, connection with, or benefit from any outside activities, especially commercial activities, which interest might in any way adversely affect the Company or any of its subsidiaries or affiliates, involves a possible conflict of interest.
* * * * * *
“... In some instances, full disclosure of the facts by the officer or employee is all that is necessary to enable the Company to protect its interests. In some others, if no improper motivation appears to exist and the Company’s interests have not suffered, prompt elimination of the outside interest will suffice.”

In 1973, Mr. Deason and his wife incorporated a realty company, Realty Center, Inc. Mrs. Deason was named President and Mr. Deason was named Secretary-Treasurer, each owning 50% of the stock of the Company. Pursuant to a change in Louisiana’s law, Mr. Deason assumed the position of President of the Company which used his broker’s license.

Following correspondence between appellant and appellee’s real estate department and an audit thereof, appellant was notified by letter dated July 6,1978, to comply with five conditions contained therein, among which was the condition that appellant divest himself of any interest in Realty Center, Inc. The record indicates that Mr. Dea-son’s continued employment with Mobil was conditioned upon his acceptance of the Company’s Conflicts of Interest Policy and his compliance with the specific requirements of the July 6,1978 letter. The letter of termination states that Mr. Deason failed and refused to comply and, therefore, his employment was terminated as of August 31, 1978. Mr. Deason was thereafter informed in a letter dated September 20, 1978, that he was ineligible for a termination allowance.

Plaintiff-appellant instituted suit and contends that he is entitled to a termination allowance since he was a covered employee under the terms of Mobil’s Termination Allowance Plan at the time of his termination and since his termination was not for just cause nor for any behavior by him prejudicial to Mobil.

Mobil alleges that plaintiff was not eligible to receive a termination allowance because plaintiff’s discharge from employment was for cause and behavior prejudicial to his employer. Defendant-appellee contends that the plaintiff’s refusal to comply with express and specific instructions of defendant to avoid any possible or potential conflict between defendant’s corporate interests as plaintiff’s employer and plaintiff’s private interests constituted the specific basis of plaintiff’s discharge from employment. Such reason constitutes cause or behavior prejudicial to defendant as his employer, and thereby makes plaintiff ineligible for a termination allowance under the provisions of Mobil’s Termination Allowance Plan.

At trial, the parties stipulated that there was never any actual conflict of interest or actual poor job performance and if Mr. Deason would be entitled to an allowance, it would be a total of $15,915.48.

The trial court found that a potential conflict did exist and held that the plaintiff, Mr. Deason, violated a reasonable request of his employer, and thus the termination was one for valid cause and denied plaintiff’s recovery of any termination allowance.

The question presented to us by this appeal is a factual one. Long v. Foster & Associates, Inc., 274 So.2d 223 (La.App.2nd Cir.1973). The trial court’s determination of fact should not be disturbed on appeal unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Rahm v. Exxon Corp., 399 So.2d 676 (La.App.1st Cir.1981).

An employer has the right to promulgate reasonable rules for its employees to follow. Southern Pacific Transport Co. v. Doyal, 289 So.2d 882 (La.App.4th Cir.1974).

We find Mobil’s rules, as expressed in its Conflicts of Interest, to be reasonable in view of appellant’s employment position, his fiduciary relationship with his employer and the nature of appellant’s outside commercial interest.

The disregard or refusal of a reasonable order connected with employment affords the employer just ground for discharge of that employee.

The trial court used the objective reasonable man test to determine whether the plaintiff’s conduct was acceptable under the circumstances and whether the requirements which the defendant placed on the plaintiff were reasonable. This is the proper test. White v. Crane Company, 147 So.2d 32 (La.App.2nd Cir.1962), certiorari denied January 25, 1963.

We concur with the trial court’s opinion that the appellant violated a reasonable request of his employer and that, therefore, his termination was for a valid cause.

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: LEAR, Judge.

text:
    E. D. HABER HEATING AND AIR CONDITIONING, INC. v. Herbert KOPPENOL.
    No. 14415.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    John A. Cvejanovich, Covington, for plaintiff, appellee.

      Bernard S. Smith, Covington, for defendant, appellant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

Plaintiff, E. D. Haber Heating and Air Conditioning, Incorporated, recorded a lien claim in the mortgage records of St. Tammany Parish against the property of defendant, Herbert Koppenol, alleging failure to pay the balance due on a contract to provide and install a central heating and air conditioning system in a house owned by defendant. Plaintiff then filed this civil action seeking recovery of the balance due under the contract.

Defendant filed an answer and reconven-tional demand, requesting cancellation of the lien plus damages and attorney fees and, alternatively, a reduction of the sales price of the system. At the time suit was filed, defendant’s house (and the air system) had been destroyed by fire.

After trial on the merits, judgment was rendered in favor of plaintiff for $280, representing the balanced owed under the contract less the value of the system at the time of its destruction. The judgment also ordered cancellation of the lien. The trial court otherwise denied the reconventional demands of defendant.

Defendant then perfected the instant appeal. He assigns two specifications of error: 1) failure to award damages and attorney fees under Louisiana Revised Statutes 9:4851 et seq.; and 2) failure to award attorney fees under Louisiana Revised Statute 9:4821. These are the sole issues presented on appeal.

The record reveals that defendant moved an old house onto a parcel of property owned by him. He and his family did not move into the house. Indeed, it appears that the house was in very bad condition.

Defendant proceeded to remodel the house in August of 1977. He did most of the work himself but orally contracted with plaintiff to provide and install a central air system. An electrical system was agreed upon, with the understanding that plaintiff would replace it with a gas system if defendant was not satisfied with the electrical one.

The rough-in work on the air system was completed in September of 1977. Defendant paid plaintiff 60% of the contract price at that time, leaving a balance of $880 to be paid upon completion of the work.

Defendant and his family eventually moved into the house in November of 1977. Although defendant testified that plaintiff did not begin work on the air system until after defendant and his family moved into the house, plaintiff’s invoice for the rough-in work, dated September 15, 1977, indicates otherwise. When questioned about this invoice at trial, defendant did not contest it's validity. Moreover, defendant’s wife testified that the work done by plaintiff shortly after the family took occupancy was to turn-on the heat, not to rough-in the system. Hence, it is clear that the contract was entered into and work on the system was begun well in advance of the time defendant first occupied the house.

Shortly after defendant took occupancy, he began complaining that the electrical system did not properly heat the house and was too expensive to operate. He asked plaintiff to replace it with a gas system, in accordance with their agreement. However, plaintiff never did so.

Plaintiff completed work on the system in May of 1978. Defendant did not remit the $880 balance due under the contract. Plaintiff then filed the lien claim against defendant’s property. However, plaintiff had never provided defendant with the Notice of Lien Rights required by Louisiana Revised Statute 9:4852.

Defendant owned several parcels of property on the same road. The lien claim recorded by plaintiff was filed against the wrong parcel of property, not the one upon which the house was situated. Although defendant twice notified plaintiff that the lien should be cancelled as invalid, the reasons given by defendant did not include the fact that the lien had been filed against the wrong property. Instead, defendant noted as reasons for cancellation that plaintiff had failed to fulfill his contractual obligations and that the air system was defective.

Although the trial court found that no Notice of Lien Rights had been given to defendant and that the lien had been filed against the wrong property, it refused to award defendant damages or attorney fees. In this respect, the trial court first found that defendant’s house was new construction from the ground up, to which Louisiana Revised Statutes 9:4851, et seq., are inapplicable. Secondly, the trial court found that attorney fees were not warranted under Louisiana Revised Statute 9:4821 because defendant did not state in his notice as a reason for cancellation of the lien the fact that it had been filed against the wrong property.

Louisiana Revised Statutes 9:4851 et seq., constitutes the Residential Truth in Construction Act. As its name implies, the act is applicable to all “residential home improvements”, i.e. “all improvements or construction which enhance the value or enjoyment of any real property occupied by the owner thereof principally as a single-family dwelling or residence . . .. ” (Emphasis added.) La.R.S. 9:4851 A and B.

The act requires contractors to provide owners with a Notice of Lien Rights prior to or upon entering into a contract for residential home improvements. La.R.S. 9:4852. If a lien is perfected and the contractor has failed to provide the required notice, the owner has a civil cause of action therefor and is entitled to reasonable damages and attorney fees. La.R.S. 9:4855.

Although we note that the trial court was clearly wrong in finding that the house in question was new construction from the ground up, we nevertheless must conclude that the act is inapplicable for another reason, under the facts of this case. The act requires the contractor to give the owner the Notice of Lien Rights prior to or upon entering the contract for home improvements of an occupied residence. The record clearly reveals that, at the time the contract herein was entered and even at the time the rough-in work thereunder was completed, defendant did not occupy the house. Hence, plaintiff was under no obligation to give defendant the Notice of Lien Rights; and his failure to do so is not a basis for an award of attorney fees under the act.

Neither do we find that defendant is entitled to attorney fees under Louisiana Revised Statute 9:4821, which provides for recovery of attorney fees if the owner is successful in obtaining cancellation of a lien. Under this statute, the owner must fulfill two requirements: 1) send by certified mail a request to the claimant for cancellation, stating the reason why the lien is invalid; and 2) if not cancelled within thirty days after receipt of the request, show that refusal to cancel the lien was arbitrary, capricious, and unreasonable.

As previously stated, defendant did send plaintiff a request to cancel the lien. However, the reasons given therefor were breach of contract and defective workmanship. Although the trial court did find that plaintiff had failed to replace the electric air system with a gas one as agreed by the parties, it ordered only a reduction of the contract price equal to the value of the system at the time of its destruction by fire. Plaintiff was still found to be entitled to a partial recovery on his lien claim, and defendant does not question on appeal that portion of the trial court’s judgment.

The lien was not invalid and defendant’s refusal to cancel it was not arbitrary, capricious, and unreasonable for either reason stated in defendant’s request for cancellation. Rather, the lien was improper because it had been recorded against property upon which the house was not situated, a reason not given by defendant in his cancellation request.

Louisiana Revised Statute 9:4821 specifically requires that the request for cancellation state “the reason why the lien is invalid.” Having failed to do so, defendant is not entitled to recovery of attorney fees under that statute.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are assessed against defendant-appellant.

AFFIRMED.


text:
    Irene Prieto MILLER v. Sidney W. CAMPBELL.
    No. 14418.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Ron S. Macaluso, Hammond, for plaintiff.
    Iddo Pittman, Jr., Hammond, for defendant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed the judgment sustaining exceptions of prescription, res judicata and peremption to her petitory action.

In a possessory action, the appellee in the present action had secured judgment that ordered the appellant in the present action to bring a petitory action within thirty days after the judgment became final. Her motion for a new trial was fixed for argument on December 14, 1979. On December 13, her counsel obtained a continuance and asked to be dismissed as attorney. The hearing was reassigned for January 11, 1980.

On December 14, the trial court signed a judgment submitted by appellee denying the motion for a new trial. Notice of the judgment was sent on December 26, 1979, and was received by appellant on December 28. On March 5,1980, she filed a motion to reassign motion for new trial, which was later denied, and the present petitory action.

The issue is the propriety of the exceptions. To decide that, however, we have to consider the validity of the denial of a new trial after granting a continuance on the scheduled hearing and the necessity for holding a contradictory hearing.

We affirm.

Appellant applied for a new trial in the first case on the grounds that the decision rendered was contrary to law and evidence. These bare allegations did not present any new issues and it was within the trial judge’s discretion to deny the motion ex parte and without a contradictory hearing. Sonnier v. Liberty Mutual Insurance Company, 258 La. 813, 248 So.2d 299 (1971).

The order granting a hearing on the motion for a new trial was interlocutory in nature. The trial judge has the authority to review an interlocutory order rendered by him and to change it if the new ruling would do substantial justice. Bordelon v. Dauzat, 389 So.2d 820 (3rd Cir. 1980); Arnold v. Stupp Corporation, 249 So.2d 276 (1st Cir. 1971).

Appellant cites Mooney v. Hooper, 3 La. 444 (1832) and Ogden v. Wilson, 18 La.Ann. 596 (1866) in which continuances granted prior to a trial and set aside without notice were found to be sufficiently irregular to warrant a reversal. In both of these cases, the issue was raised on timely appeal of the suit in which the continuance was granted.

Constitutional due process does not require a contradictory hearing on a motion for a new trial. Borras v. Falgoust, 285 So.2d 583 (4th Cir. 1973), writ denied 289 So.2d 161.

A thirty day delay is allowed for an appeal from a possessory action. Louisiana Code of Civil Procedure, Article 3662. Appellant received notice of the denial of the motion for a new trial well within time to appeal. Since she did not appeal, the judgment of the possessory action and the denial of the subsequent motion for a new trial have become moot.

By the judgment, appellant had thirty days after the judgment became final to file the petitory action. She did not file within that time. The possessory action judgment definitively barred further litigation on the issues of ownership or possession except as authorized by the judgment, pursuant to Article 3662. Board of Commissioners v. S. D. Hunter Foundation, 354 So.2d 156 (La.1977).

Appellant contends that the rulings in the possessory action deserve to be annulled. In the absence of grounds evidencing an absolute nullity or a direct action raising the issue of relative nullity, we cannot rule on that issue. Louisiana Code of Civil Procedure, Article 2002, 2004.

For the reasons assigned, we affirm at appellant’s cost.

AFFIRMED.

      . La.C.C.P Art. 3662:
      “A judgment rendered for the plaintiff in a possessory action shall:
      (1) Recognize his right to the possession of the immovable property or real right, and restore him to possession thereof if he has been evicted, or maintain him in possession thereof if the disturbance has not been an eviction;
      (2) Order the defendant to assert his adverse claim of ownership of the immovable property or real right in a petitory action to be filed within a delay to be fixed by the court not to exceed sixty days after the date the judgment becomes executory, or be precluded thereafter from asserting the ownership thereof, if the plaintiff has prayed for such relief; and
      (3)Award him the damages to which he is entitled and which he has prayed for.
      A suspensive appeal from the judgment rendered in a possessory action may be taken within the delay provided in Article 2123, and a devolutive appeal may be taken from such judgment only within thirty days of the applicable date provided in Article 2087(l)-(3).”

      . La. C.C.P. Art. 2002:
      “A final judgment shall be annulled if it is rendered:
      (1) Against an incompetent person not represented as required by law;

        (2) 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; or
      (3) By a court which does not have jurisdiction over the subject matter of the suit.
      Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.”
      La. C.C.P. Art. 2004:
      “A final judgment obtained by fraud or ill practices may be annulled.
      An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”


text:
    Amy E. DILLON, et al. v. HOSPITAL AFFILIATES OF BATON ROUGE, d/b/a Doctors’ Memorial Hospital.
    No. 14425.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Writ Denied Jan. 18, 1982.
    Max Labranche, Baton Rouge, and Arthur Lemann, III, New Orleans, for plaintiffs-appellants Amy E. Dillon and Arthur H. Dillon.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellee Hospital Affiliates of Baton Rouge d/b/a Doctors’ Memorial Hosp.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

Plaintiffs, Amy E. Dillon and Arthur H. Dillon, sued defendant hospital, Hospital Affiliates of Baton Rouge, d/b/a Doctors’ Memorial Hospital, for negligence and breach of contract arising out of the same factual circumstances occurring on October 16, 1974. Suit was filed on September 8, 1978. The negligence action was dismissed on exception of prescription. Plaintiffs tried the breach of contract action to a jury on November 24, 1980. At the close of the plaintiffs’ case, the trial court directed verdict in favor of the defendant hospital, and signed a judgment in favor of defendant, dismissing the plaintiffs’ suit with prejudice at their costs. It is from this judgment that plaintiffs appeal. We reverse and remand.

The record reflects that plaintiffs instituted a suit against the Hospital for an alleged injury resulting from a fall occurring on October 16,1974; and that suit was filed on September 8, 1978, some three years and eleven months after the date of the alleged injury. The trial court initially sustained the peremptory exception of prescription as to the entire cause of action; but upon application for rehearing, the court reversed its ruling in part, holding that plaintiffs had alleged a cause of action in contract which had not prescribed, and maintained the plea of prescription insofar as the negligence action was concerned.

Paragraphs XII and XIII of the plaintiffs’ petition alleged that defendant “breached its contract, both express and implied, and that implicit with the payment for hospital care to plaintiff (Amy E. Dillon) in that plaintiff was entitled to a supervised hospitalization and recuperative period with adequate and skilled attendants”; and that “these services would be in accordance with her physician’s orders and advice that the hospital was safe for the intended care.” Further, they alleged that defendant “breached its contract of holding out itself as a licensed hospital, fully aware and knowledgeable of the standards of care of its profession by the aforementioned facts.”

In paragraphs VII and VIII, plaintiffs alleged that on the evening of October 16, 1974, she requested a bedpan by way of intercom and after waiting 30 minutes without response, she left her bed to go to the bathroom adjacent to her bed; and that upon returning, she fell to the floor, striking her face and chest, causing great pain. It is alleged that thereafter a nurse came to assist, and that the nurse grabbed her right arm in attempting to pull Mrs. Dillon up. It is then alleged that she advised the nurse about the nature of her operation (double mastectomy); whereupon the nurse dropped her to the floor, again striking her chest. Plaintiffs further alleged that the nurse grabbed Mrs. Dillon’s left arm in another attempt to help her up from the floor; and that when the nurse was told that this was no better, she was again dropped to the floor.

Upon the close of the case for the plaintiffs, defendant move for a directed verdict under LSA-C.C.P. art. 1810, based upon the plaintiffs’ failure to present evidence which established a breach of a contractual duty, and that plaintiffs had not offered evidence of a contract between the plaintiffs and Doctors’ Memorial Hospital, or terms of any contract, either direct, implied or otherwise. The trial judge granted the motion for a directed verdict; on appeal, plaintiffs complain that the trial court therein erred.

The directed verdict is provided by LSA-C.C.P. art. 1810, which reads:

“A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. “B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

The courts have considered this statutory provision and adopted a standard for directed verdicts in Campbell v. Mouton, 373 So.2d 237 (La.App. 3 Cir. 1979). On a motion for directed verdict, the trial judge must consider all evidence, not just that supportive of the opponent’s case, in the light, and with all reasonable inferences, most favorable to the party opposed to the motion. If there is substantial evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions, the motion for directed verdict must be denied, and the case submitted to the jury. It is only where the facts and reasonable inferences point so strongly and overwhelmingly in favor of the mover that the trial judge can only conclude that reasonable persons could not arrive at a contrary verdict that the granting of the motion for directed verdict is proper.

We thus find that the trial judge erred in directing a verdict in favor of the Hospital. Considering the evidence and all reasonable inferences in the light most of favorable to the plaintiffs, we hold that there was sufficiently substantial evidence to have placed the question before the jury. There was evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions; the motion for directed verdict should have been denied, and the case submitted to the jury.

The record in this case, viewed in the light most favorable to the plaintiffs, reflects the following: the incident which gave rise to this suit occurred on October 16, 1974. Mrs. Dillon, on the second day following a double mastectomy, and while under sedation, fell as she attempted to return from the bathroom unassisted, injured her breast areas. There was a question about the kind of assistance the hospital employees rendered to Mrs. Dillon following her fall.

In support of Mrs. Dillon’s claim, she testified explaining her difficulties and problems. She testified that she requested assistance from the nurse, but she was told to wait until the nurse could get back to her. She stated:

“A. Well, I had been in some pain and had called the nurse and she brought me a shot. And I asked her, you know, if I could go to the bathroom. She said that she had to finish what she was doing and that she would send somebody else or come back herself. And I told her okay. She went ahead and gave me the shot and I waited for a while. It seemed like 20 or 30 minutes, I guess. I needed to go to the bathroom real bad so I pushed the button and they told me that they would be there in just a minute. So I waited again and it must have been about 30 more minutes, I guess. And the bathroom was located — my bed was next to the bathroom. There were two beds in the room I was in but mine was right next to the bathroom. And I thought, well, I will go on to the bathroom myself. You know, I felt like I could make it that far. So I got out of the bed and went to the bathroom. And when I got up off of the commode, everything just went black. When I came to, the girl that was in the bed next to me was standing there, you know, and I asked her if she would push the button and call the nurse. She pushed the red button in the bathroom. This nurse came down there, I don’t know what her name was or who she was or anything. I was hurting real bad. And she caught me by the right arm and she started picking me up off of the floor and I told her, you can’t do that; I have had breast surgery. Well, she turned me a loose [sic] and she acted like she was real mad. And she stepped across me then and she caught my left arm and started to pull me up. And I said, but you can’t do that I have had surgery on both breasts. And she released me again and I hit the floor.
Q. What part of your body hit the floor?
A. The front part of my face.
Q. From what height did you fall?
A. About a foot, I guess, or even maybe a little bit more. I am not sure.
Q. How did you finally get into bed?
A; I remember several nurses were in there and they were trying to put their hands up under me. And that’s all I remember. When I came to I was in the bed.”

Dr. Donald R. Cowick, a general surgeon, testified that he saw Amy Dillon on February 21, 1974, observing a mass on the left breast. He again saw her on October 7, 1974, at which time, after tests, a medical decision to remove the breast tissue was made, because of recurrent problems. She was subsequently admitted to Doctors’ Memorial Hospital on October 13, 1974. Dr. Cowick performed surgery on October 14, 1974, on both breasts and implanted bilateral mammary implants. Her initial prognosis was good. Concerning the fall of Mrs. Dillon on October 16,1974, he testified that there was a note in the hospital record that Dr. Cowick had been called; and that the nurse who, according to the records, had reported the incident to him or his office was very reliable, so that he was certain that the incident was reported, even though he had no independent recollection of the fall or the call. Thereafter, because of skin coverage problems, Dr. Cowick performed another surgical procedure on November 17, 1974, and removed the implants. On July 28,1975, the doctor performed a third surgical procedure, using a different type of implant, with a saline solution, in an effort to overcome the difficulty of the previous implants.

Georgia Talbert, a licensed practical nurse, who had been employed at the Hospital for about six years, testified that she took care of Amy Dillon, and was the nurse who reported the incident of October 16, 1974; but she did not recall the incident, except what was entered in the hospital chart. Mrs. Talbert testified that the patient apparently fell while returning unassisted from the bathroom. She said that she did not recall Mrs. Dillon asking for assistance to go to the bathroom, or asking for a bedpan, at that time. Mrs. Talbert said that she always went to a patient when assistance was requested, and that she would never have refused help to a patient, such as Mrs. Dillon. Further Mrs. Talbert testified that a surgical patient who had undergone a mastectomy would never be picked up by the arms as described by Mrs. Dillon. She never picked up a patient, including Mrs. Dillon, in that way.

Arthur H. Dillon testified that he was notified by phone of his wife’s fall. He also testified about her condition before and after the fall.

Hence, there is substantial evidence upon which the jury could base a finding that there existed a contract between the Dillons and the Hospital, and that the Hospital breached its contract with the Dillons by failing to use due care under the circumstances. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974); see Henson v. St. Paul Fire and Marine Insurance Company, 354 So.2d 612 (La.App. 1 Cir. 1977), affirmed, 363 So.2d 711 (La.1978); Free v. Franklin Guest Home, Inc., 397 So.2d 47 (La.App. 2 Cir. 1981), writ denied, 401 So.2d 975 (La.1981).

The trial judge, in directing a verdict in favor of defendant, obviously believed that the plaintiffs were required to prove that there was a contract warranting or promising a particular result. Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963); Sumerall v. St. Paul Fire & Marine Insurance Company, 366 So.2d 213 (La.App. 2 Cir. 1978); see also Sciacca v. Polizzi, 403 So.2d 728 (La.1981).

The Sciacca and Sumerall cases are factually distinguishable from the instant case. The instant case does not arise out of medical malpractice and is not based on a physician’s negligence. This action arises out of alleged breach of contractual due care.

We thus agree with the plaintiffs that a mere agreement with the hospital to provide health care constitutes an implied contract to use the usual degree of professional skill and care, and that there was sufficiently substantial evidence to go to the jury on the question of breach of the contractual duty of due care.

It also appears that the trial judge accepted the testimony of Nurse Talbert over that of Mrs. Dillon. Making credibility evaluations is one of the primary duties of the jury and the trial judge is not permitted to take this duty from the jury unless the party opposing the motion for directed verdict has failed to produce sufficient evidence upon which reasonable and fair-minded persons could disagree. Campbell v. Mouton, supra.

Since the trial judge’s ruling precluded the introduction of any evidence by the Hospital, the record is incomplete. We are unable to render judgment on this incomplete record. We believe that fairness to all parties dictates that the entire case be remanded for new trial. See McClinton v. Reid, 391 So.2d 506 (La.App. 3 Cir. 1980), writ denied, 396 So.2d 1325, 1326 (La.1981).

For the foregoing reasons, the judgment of the trial court granting the defendant’s motion for a directed verdict is reversed, and the motion is denied. The case is remanded for a new trial not inconsistent with the views expressed herein. Costs of this appeal are assessed to the defendant-appellee. All other costs must await further proceedings.

REVERSED AND REMANDED.

      . Since plaintiff’s cause of action vested in 1974, it cannot be barred by LSA-R.S. 9:5628. Zeno v. Lincoln General Hospital, 376 So.2d 1284 (La.App. 2 Cir. 1979).

      . The Court in Campbell v. Mouton adopted the standard that is applied in the federal courts. See Boeing Co. v. Shipman, 411 F.2d 365 (C.A. 5, 1969).


text:
    Mary F. MITCHELL and Walter J. Mitchell v. Tommy C. PADGETT, et al.
    No. 14452.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Garic K. Barranger, Covington, for plaintiffs-appellees.
    Gothard J. Reck, New Orleans, for defendants-appellants.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

This appeal was fixed on the November docket and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this court, ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice. .

APPEAL DISMISSED.


text:
    Melvin SMITH v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Office of Charity Hospital of Louisiana at New Orleans.
    No. 14858.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Louis L. Robein, Jr., Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for appellant.
    Philip H. Kennedy, Dept, of Health & Human Resources, New Orleans, for appel-lee.
    Laura Denson Holmes, Dept, of State Civ. Service, Baton Rouge, for George Hamner, Director, Department of State Civil Service.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

This matter is before us on a motion to dismiss. Defendant-mover Department of Health and Human Resources (herein referred to as DHHR) argues the appeal should be dismissed because it was not timely filed. We disagree and therefore deny the motion.

On July 6, 1981, the State Civil Service Commission rendered its written opinion concerning Mr. Smith’s appeal of his suspension and termination from his position as Police Officer I at Charity Hospital in New Orleans. Unhappy with the decision, appellant (through his attorney) wrote a letter of appeal postmarked August 4, 1981, which was received by the Commission on August 5, 1981. There was no appeal bond accompanying the letter. A second letter of appeal was written, (and an appeal bond included), postmarked August 5, 1981, and was received by the Commission August 7, 1981.

DHHR insists the decision of the Commission was final on July 6,1981, in accord-anee with Civil Service rule 13.28(a), and therefore the appellant had only 30 days or until August 5, 1981, to actually file his appeal and provide his appeal bond. The 30-day appeal period is established in La. Const, art. X § 12, which reads in part as follows:

"... The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.”

In their brief in support of the motion to dismiss, DHHR does not mention the first appeal, apparently believing it to be invalid because it did not contain specifications of error and was not accompanied by an appeal bond. They discuss only the second appeal letter and contend that in order for an appeal to be “filed” it must be actually received by the appropriate official. Lambert v. Kelley, 270 So.2d 532 (La.1972). They contend the postmark date is immaterial.

The appellant points out that under rule 13.12(a) of the Civil Service Commission the appeal is timely if the letter is addressed to the Director and it is dated by the United States Post Office within 30 days after the date on which the appellant received notice of action. Under this rule, even his second appeal letter was timely because it was postmarked on August 5, which is the thirtieth day after July 6th.

We note there is an apparent conflict between the Constitution and the Civil Service rule. Under the Constitution the appellant has thirty days from the date the decision becomes final in which to file an appeal. We agree that an appeal is filed when it is received by the appropriate official. Lambert, supra. Yet Civil Service rule 13.12(a) clearly states the appeal need only be postmarked within 30 days after the date the appellant received notice.

Because a more important issue arises in this case, we need not decide this matter on the basis of the above conflicting rules. It is obvious in a situation where the Constitution conflicts with the Civil Service Rules, the Constitution, being the highest law in the state, prevails. We trust the Commission will take note of this glaring inconsistency, as well as the one discussed hereafter, and remedy the situation.

The larger issue to be resolved concerns the right of appellant to apply for a rehearing of the Commission’s decision. This issue discloses an even more significant inconsistency in our law. Civil Service rule 13.33(b) states:

“No hearing shall be granted from a final decision of the Commission.”

However, the Administrative Procedure Act (La. R.S. 49:951 et seq.) which governs all “agencies” provides:

“ ‘Agency’ means each state board, commission, department, agency, officer, or other entity which makes rules, regulations, or policy, or formulates, or issues decisions or orders pursuant to, or as directed by, or in implementation of the constitution or laws of the United States or the constitution and statutes of Louisiana, except the legislature or any branch, committee, or officer thereof, any political subdivision, as defined in Article VI, Section 44 of the Louisiana Constitution, and any board, commission, department, agency, officer, or other entity thereof, and the courts.”

This broad definition obviously includes the Civil Service Commission and Section 959 A of the Act states:

“A decision or order in a case of adjudication shall be subject to rehearing, reopening, or reconsideration by the agency, within ten days from the date of its entry.”

Here again, we have a conflict between the Civil Service rules and a state law. The state law, being of a higher status than the Civil Service rules, controls in this case. The appellant should have had a ten-day period in which to apply for a rehearing. The decision of the Commission did not become final until the ten-day period had run. It is only after this period had expired that the thirty-day period commenced. Therefore the appellant had a total of 40 days within which to file his appeal. His appeal was received well within the 40-day period and was therefore timely filed.

In our research of this matter we note our brethren of the Fourth Circuit have agreed with this reasoning and have concluded that because of § 959(A) of the Administrative Procedure Act an appellant in a civil service matter is entitled to apply for a rehearing (and therefore have the benefit of the ten-day delay) even though the Civil Service rules do not provide for such rehearing. Quinn v. Department of Health, 347 So.2d 954 (La.App. 4th Cir. 1977); Paulin v. Department of Sanitation, 383 So.2d 1064 (La.App. 4th Cir. 1980).

For the foregoing reasons the motion to dismiss the appeal is denied.

MOTION DENIED.

      . 13.28(a) reads as follows:
      “After hearing of an appeal, the Commission shall make a written decision containing its findings of facts and conclusions, which shall be filed with the Director. The decision of the Commission shall be final on the day that it is filed with the Director." (Emphasis added.)

      . Rule XVI, sect. 2 of the Uniform Rules, Courts of Appeal, requires each appellant to file bond for costs in the sum of $100.00.

      . Rule 13.12 reads in part as follows:
      (a) No appeal shall be effective unless a written notice complying with the requirements of Rule 13.11 is either (i) received in the office of the Director of the State Department of Civil Service at Baton Rouge, Louisiana, or (ii) is addressed to the Director of the State Department of Civil Service at Baton Rouge, Louisiana, with proper postage affixed, and is dated by the United States Post Office.
      1. Within thirty (30) calendar days after the date on which appellant received written notice of the action on which the appeal is based when written notice before or after the action is required by these Rules; or
      2. Within thirty (30) calendar days after the date when appellant learned or was aware that the action complained of had occurred when no written notice is required by these Rules or, if required, was given tardily or not at all.

      .Although no mention is specifically made, the appellant apparently received notice of the opinion on July 6, 1981.

      . La.R.S. 49:951(2).