text:
    STATE of Louisiana, ex rel. George WILLIAMS v. Frank BLACKBURN, et al.
    No. 81-KH-2935.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re George Williams, applying for writ of habeas corpus. Parish of Orleans. No. 244-214.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, ex rel. Norman MURRAY v. J. D. MIDDLEBROOKS.
    No. 81-KH-2958.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Norman Murray, applying for supervisory and remedial writs. Parish of Evangeline. No. 18873.

Writ denied.


text:
    STATE of Louisiana, ex rel. Steve Edward ALLEN v. CLERK OF COURT CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 81-KH-2960.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Steve Edward Allen, applying for writ of mandamus. Orleans Parish. No. 267-736.

Denied.


text:
    STATE of Louisiana ex rel. Roy T. BOND, Jr. v. Frank C. BLACKBURN, Warden.
    No. 81-KH-2984.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Roy T. Bond, Jr., applying for writs of certiorari, habeas corpus, mandamus and remedial writs. Parish of St. Mary. No. 84288.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana, ex rel. Bobby J. THOMAS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2995.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Bobby J. Thomas, applying for writ of habeas corpus. Parish of Evangeline. No. 21576.

Denied.


text:
    STATE of Louisiana ex rel. William GLOVER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3006.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re William Glover, applying for writ of habeas corpus. Parish of Orleans. No. 251-459.

Denied.


text:
    STATE of Louisiana ex rel. Quentin Joseph REED v. John T. KING, Secretary of the Louisiana Department of Corrections and N. Burl Cain, Warden of the Dixon Correctional Institute at Jackson, Louisiana.
    No. 81-KH-3045.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Quentin Joseph Reed, applying for supervisory and remedial writs. Parish of Orleans. No. 274-041, Section J.

Writ denied.


text:
    STATE of Louisiana ex rel. Bennie Ray CAIN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3046.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Bennie Ray Cain, applying for writs of certiorari and review and a stay order. Parish of Caddo. Nos. 110-484-A and 116623-HC.

Denied.


text:
    STATE of Louisiana ex rel. William Sherwood JOHNSON v. Matthew BRANIFF.
    No. 81-KH-3056.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re William Sherwood Johnson, applying for remedial writ. Parish of Orleans. No. 263-196 “B”.

Writ denied.


text:
    STATE of Louisiana ex rel. Arthur BAILEY, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3058.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Arthur Bailey, Jr., applying for writ of mandamus. Parish of Orleans. Nos. 212-932 and 212-445.

Writ denied. Relator must first file in the district court.


text:
    STATE of Louisiana ex rel. Marlon Dale MIKESELL v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 81-KH-3128.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Marlon Dale Mikesell, applying for writs of certiorari, prohibition, mandamus or habeas corpus. Parish of Ouachita. Nos. 38746 and 38747.

Denied.


text:
    STATE of Louisiana ex rel. David Clifton BAILEY v. STATE of Louisiana.
    No. 81-KH-3147.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re David Clifton Bailey, applying for writ of certiorari. Parish of Calcasieu. No. 3210-79.

Denied.


text:
    STATE of Louisiana ex rel. John DOYLE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-3173.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re John Doyle, applying for writ of habeas corpus. Parish of St. Tammany. No. 51038.

Denied.


text:
    STATE of Louisiana ex rel. Terry WOODLAND v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3214.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Terry Woodland, applying for writ of certiorari, on habeas corpus, to the 19th Judicial District Court. Parish of East Baton Rouge. No. 8-79-342.

Denied.


text:
    STATE of Louisiana ex rel. William Sherwood JOHNSON v. STATE of Louisiana.
    No. 81-KH-3222.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re William Sherwood Johnson, applying for remedial writs. Parish of Orleans. Criminal District Court. No. 263-196.

Denied.


text:
    STATE of Louisiana v. Leroy A. ANDERSON.
    No. 81-K-3334.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Leroy A. Anderson, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Calcasieu. No. 8353-80.

Denied.

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


author: SAMUEL, Judge.

text:
    Gordon E. ELLIOTT v. DI MARI, CORPORATION.
    No. 7586.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    James R. Mary, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge.

The defendant appeals from a judgment evicting it from certain residential premises in the Parish of Jefferson.

Possession of the premises is the sole issue presented in this court and appellant’s only claim to its alleged right of occupancy is based on a written lease for a term of one year ending on June 30, 1976. Thus, as appellant’s lease has expired by its own terms and therefore it cannot now be placed in possession, any change in the trial court judgment would serve no purpose nor have any practical legal effect. The appeal must be dismissed as moot. While some claim for damages may survive expiration of the lease in suit, no such claim is presented to us by this appeal.

For the reasons assigned, the appeal in this matter is dismissed; all costs in this court are to be paid by the appellant.

APPEAL DISMISSED.

      . Originally erroneously referred to in the petition as “Di Mari Corp.”, but later corrected to “DiMari, Incorporated”.

      . Paul v. Adams, La.App., 338 So.2d 968; Herman v. Style Line Greetings, Inc., La.App., 325 So.2d 371. See also People’s Bank v. Levy, 151 La. 583, 92 So. 124; Lemann v. Kogos, La.App., 273 So.2d 63; Barcom, Inc. v. Doll, La.App., 119 So.2d 544; Welsh v. Richardson, La.App., 94 So.2d 457.


author: THOMAS M. McBRIDE, III, Judge Pro Tem.

text:
    Mrs. Joyce Melancon BACILE, Individually and as Natural Tutrix and Administratrix of Dodie Ann Melancon v. PARISH OF JEFFERSON and Bogalusa Iron Works, Inc.
    No. 11984.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 23, 1981.
    Rehearings Denied April 16, 1982.

      Nick F. Noriea, Jr., Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiff & appellant.
    Hubert A. Vondenstein and Daniel Marti-ny, Gretna, for defendant & appellee Parish of Jefferson.
    Donald H. Lee, Seal, Lee, Branch & Brown, Bogalusa, for defendant & appellee Bogalusa Iron Works, Inc.
    Before REDMANN and STOULIG, JJ., and McBRIDE, III, J. Pro Tem.
   THOMAS M. McBRIDE, III, Judge Pro Tem.

Plaintiff-Appellant, Joyce Melancon Ba-cile, instituted suit on behalf of her minor daughter, Dodie Ann Melancon, for injuries sustained by her minor child. On May 2, 1974, the minor, who was then' eleven years old, was attempting to cross Skidmore Street in Jefferson Parish. As the child stepped from the curb in front of 2977 Skidmore, her foot became lodged in a drain grate opening and resulted in an injury to the calf of her leg. The drain grate was manufactured by defendant, Bogalusa Iron Works according to the design, plans and specifications of Jefferson Parish and accepted for use.

Appellant represents that the Defendants were negligent in the design and planning of the drain grate. The design of the grate called for a 2W opening on each end of the grate, with 2" openings in the middle. The particular drain grate in question was measured, and demonstrated a 2n/ic" opening on the end where young Miss Melancon fell. As a result of this variance, appellant further submits that the grate was accepted for use although it did not meet specifications.

In support of appellant’s position, a “human factor expert” testified that the 2'/>" opening presented an unsafe condition, with no consideration given for human frailties. He further testified that the grate was located in a subdivision where people are walking and that it is conceivable and probable that persons would step through the opening and sustain an injury. Accordingly, special design considerations should be given to the human factor that someone could step through the opening.

The Civil Engineer for the Parish of Jefferson and the representative of Bogalusa Iron Works testified that the grate had been used extensively throughout the State for a number of years without incident, and that the s/i6" variance in the grate in question was within normal tolerance in casting iron; therefore, the grate was not unreasonably dangerous.

We cannot agree with the defendants’ position. Just as the fact that a foot gets caught in an escalator proves the escalator defective, Marquez v. City Stores, 371 So.2d 810 (La.1979), so too the fact that a normal-sized 11-year-old child falls through a flat drainage grate in a street all the way up to her knee proves that the grate is defective. We therefore reverse the trial court’s judgment dismissing plaintiffs’ claim for damages from the child’s injury.

A “roll over catch basin” grate with openings intended to lie flat in the street, yet so long and so wide as to admit a child’s foot, is defective because it presents an unreasonable risk of injury to children in its normal use; see Marquez, supra. The parish is therefore liable under La.C.C. 2317 for damages caused by the defect of a thing which it has in its custody, Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980).

The manufacturer is also liable to plaintiff for its failure to manufacture the grate in a reasonably safe condition for its intended use. That the manufacturer fabricated the grate in accordance with the parish’s design and specifications would not exculpate the manufacturer towards a person injured in normal use of the thing; a manufacturer who knows the intended use cannot join in creating an unreasonable risk of injury by manufacturing a thing that presents such a risk in its intended use. In the present case it is uncertain whether the 2.5" design width of the 13.5" long opening made the grate defective in the sense we have discussed, or whether the grate’s being manufactured :Vm" over design width caused the defectiveness. Insofar as plaintiff is concerned, those questions are immaterial because the parish’s liability exists under C.C. 2317 whether or not its design was the cause of the defect, and the manufacturer’s liability also exists irrespective of whether it merely followed an unreasonably dangerous design or on its own created, by departing from the design, an unreasonably dangerous product. Insofar as defendants are concerned between themselves it might arguably make a difference if the design or manufacturing defect were not so evident that either party should have noted the other’s error; but neither establishes that the injury was attributable exclusively to the other, and thus each is entitled not to indemnity from the other but only to contribution of half; Hunt v. City Stores, 387 So.2d 585 (La.1980).

Defendants argue that plaintiff child’s failure to avoid the catch basin grate as she ran was contributory negligence that bars her recovery. We disagree. The purpose of the legal duty to cover catch basins with grates is to protect vehicles and pedestrians from falling into the basin through failure to observe the opening in the street; and the purpose of the duty to make grate openings too small to admit a foot is to protect against persons being injured through stepping through the grate because of inattention. If one has a duty to protect another from the other’s own negligence and breaches that duty, there would be no remedy for that breach if the other’s same negligence were a bar to recovery; the duty to protect against it would be meaningless. Rue v. State, Dept. of Hwys., 372 So.2d 1197 (La.1979); Oliver v. Capitano, 405 So.2d 1102 (La.App. 4th Cir. 1981), writs refused, 407 So.2d 731, 407 So.2d 734. Thus, if plaintiff child’s stepping on the grate be negligence, it is not a bar to her recovery.

Fortunately the damage to the child appears not to be as serious as it might have been; she did not break her leg although her bone was exposed by the laceration of her tissue. She has a scar of irregular shape, an inch or so long and almost as wide, a little below her knee. The scar’s dark color has remained for about four years and causes her embarrassment. Plastic surgery would likely afford some benefit but the scar will remain. The original healing of the wound (after suturing) was complicated by infection. The injury interfered with plaintiff child’s schooling and summertime activities.

For all of this damage to her, and for the cost of future plastic surgery she (now of age) may elect to have, we conclude that an award of $10,000.00 is appropriate. Her mother is entitled to judgment for $71.00 medical costs during her minority.

Reversed; judgment for Dodie Ann Me-lancon for $10,000.00 and for Joyce Melan-con Bacile for $71.00, each against the Parish of Jefferson and Bogalusa Iron Works, Inc. in solido with interest from judicial demand and all costs; and judgment over for each defendant against the other for contribution of half.

REVERSED.


author: GULOTTA, Judge.

text:
    Virginia Patterson, Wife of/and Sidney J. PATTERSON, Jean Mayhall, Wife of/and Lester Mayhall and Irma Pitre v. Charles A. GARIC, III, d/b/a Orlandia Storage Warehouse and ABC Insurance Company.
    No. 12324.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Rehearing Denied April 16, 1982.

      Delery, Fox & Michaelis, Winifred M. De-lery, New Orleans, for plaintiffs-appellees.
    Schafer & Schafer, Ivan David Warner, III and Andree Pitard, New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA and BARRY, JJ.
   GULOTTA, Judge.

Plaintiff-homeowners filed this suit against an adjoining landowner, Charles A. Garic, III, d/b/a Orlandia Storage Warehouse, and Garic’s insurer, for flood damage. From the judgment in favor of plaintiffs, defendants have appealed. We reverse.

In oral reasons the trial judge concluded that Garic’s warehouse construction had disrupted the natural flow and equal distribution of rain water draining to the rear of his property to the extent that he “materially increased the burden upon the subservient landowners” causing flood damage to plaintiffs’ homes adjoining the rear of his property. The trial judge noted that Garic had constructed his property in violation of the parish building code with the result that approximately 22% of the water from his property went on to plaintiffs’ property. He further stated that if defendant would have adhered to the original plan whereby water on his property would have drained from the center of his property to St. Bernard Highway damage to plaintiffs would not have resulted.

On appeal, defendants contend plaintiffs have failed to show causation between the construction and the flood damage. According to defendants, damages resulted from the abnormally high May 3,1978 rainfall, an unforeseeable “act of God”, and not from any alteration of the warehouse plans or from a violation of the St. Bernard Parish Police Jury Building Code.

Garic’s property consists of a little over two acres fronting on St. Bernard Hwy. The rear of defendant’s property adjoins the rear of plaintiffs’ houses. In early 1978, Garic completed construction of a mini-storage warehouse complex consisting of a concrete slab with streets and storage buildings. To the rear of Garic’s property a walkway five feet wide and over 600 feet long abuts on plaintiffs’ properties. Garic’s original plan of construction envisioned a sub-surface drainage system whereby 100% of the water falling on his property would drain into a 15 inch pipe located in the center of his property tying into the drainage system of St. Bernard Hwy.

However, because there was no sub-surface drainage readily connectible to his proposed line, shallow concave channels in the slab, “swales”, were constructed so that the water flowed from the surface of the property to St. Bernard Hwy. and into a drainage ditch. Garic additionally sloped a portion of the slab in the rear of his property so that water drained into an existing catch basin near plaintiffs’ property that connected to a sub-surface system on Perrin Dr. Plaintiffs’ houses front on Perrin Dr. The catch basin had been installed by the parish before Garic constructed his warehouse and it took the flow of water from a drainage servitude or ditch to the rear of plaintiffs’ properties. A pump had been installed on Perrin Dr. to pump the water from the drainage easement. This pump also had been constructed before Garic started construction.

It is undisputed that some water from the roof of Garic’s buildings fell directly on a concrete walkway five feet wide and over 600 feet long abutting directly on the rear of plaintiffs’ property. It is undisputed also, that the natural slope of the land in the area is from St. Bernard Hwy. down to Perrin Dr.

Plaintiffs testified that the flooding on May 3, 1978 occurred during a heavy rainfall when water “gushed” from the rear of Garic’s property into their homes. According to plaintiffs, they had suffered no problems prior to Garic’s construction. None had encountered any flooding in his home since the May 3 rainfall, although on three or four occasions during a heavy rain their rear patios and back yards were flooded.

Thomas Reed, an expert in civil engineering and land surveying, testified that Garic had violated the St. Bernard Parish Building Code in constructing his warehouse complex higher than the adjoining property without making arrangements to control water from flowing onto the lower elevation and in failing to have guttering to prevent water draining from his roof to plaintiffs’ property.

Although Reed had not measured the grade of the Garic property, he had observed the flow of water during a rainfall and testified that % to % of the water on the slab flowed to St. Bernard Hwy., with the rest to the rear in the direction of plaintiffs’ homes. To put it another way, according to Reed, 0.5 acres of the 2.2 acre tract drained to the rear catch basin, with the remainder going toward St. Bernard Hwy. The water falling off the roof onto the rear walkway, however, drained “straight back” onto plaintiffs’ properties. Significantly, Reed acknowledged that the May 3, 1978 rainfall was a “hundred-year-rainfall” and pointed out that he was not saying that Garic’s violation of the building code had caused water to enter plaintiffs’ homes. He had no opinion of what had caused that flooding.

Steven Estopinal, an expert in civil engineering called by the defendants, had measured the grade of the property. He testified that 97% of Garic’s property drained toward St. Bernard Hwy. with the remaining 3% (or .06 acres) draining to the rear catch basin. He further stated that a fractional percentage of water from the roof drained directly onto the walkway and uniformly onto plaintiffs’ properties.

According to this expert, the May 3, 1978 rainfall was an “extreme rainfall condition” and the “worst in 100 years”. Estopinal was of the opinion that Garic’s violation of the building code encompassed such a small area that the amount of water illegally dumped on plaintiffs’ properties could not have been enough to do any damage. According to Estopinal, the drainage system of St. Bernard Hwy. failed on May 3, 1978, and a “wall of water” fed by the St. Bernard Hwy. flowed across Garic’s property and flooded plaintiffs’ homes located in the path of the lower elevation of Perrin Dr. This expert testified that any water contributed by Garic’s construction was “absolutely insignificant” and just a minute fraction of the water coming from other sources along the highway.

Estopinal fe'lt the rear catch basin would have, under normal conditions, been able to handle the flow of water; but that the St. Bernard Hwy. system was “grossly inadequate” to handle the May 3 rainfall. Although the sub-surface drainage plan originally envisioned by Garic would have taken 100% of the water from his property to the highway, Estopinal testified that on May 3, the highway was flooded and sub-surface drainage would not have made any difference. According to Estopinal, under normal conditions Garic’s warehouse building did not increase the chance of flooding.

Where recovery is based on the obligations of an owner under LSA-C.C. Art. 656, as in any case where recovery is sought based on owner’s use of the property that causes damage to a neighbor, the injured party must establish causation between that which the owner did or failed to do and the damage resulting from the defendant-owner’s act or omissions. See South Central Bell Tel. Co. v. Hartford Acc., 385 So.2d 830 (La.App. 1st Cir. 1980); Russell v. Windsor Properties, Inc., 366 So.2d 219 (La.App. 2d Cir. 1978).

In the instant case, resolution of the causation issue does not involve the acceptance of the testimony of one expert and the rejection of another based on credibility. The issue here is not credibility of the evidence but sufficiency of evidence. The expert testimony is not contradictory. In this case the manifest error rule does not apply. Blue Streak Enterprises v. Cherrie, 263 So.2d 734 (La.App. 4th Cir. 1972); Jones v. Bryant, 283 So.2d 307 (La.App. 4th Cir. 1973).

The undisputed testimony of the experts is that the greater and predominant amount of water that accumulated on the defendant’s slab flowed in the direction of St. Bernard Hwy. (% to % of the amount according to Reed, and 97% according to Esto-pinal) and away from plaintiffs’ properties. Neither of the experts stated or gave an opinion that the construction of the warehouse was responsible for the flooding of plaintiffs’ property on the day of the May 3 flood. Estopinal’s testimony in this regard was that the amount of water accumulating on plaintiffs’ property from the warehouse construction was “absolutely insignificant.” Even Reed, plaintiffs’ expert, stated that he had no opinion of what had caused the flooding of the homes. It is undisputed that the natural flow of water, particularly in a heavy rainfall, is from the higher St. Bernard Hwy. elevation to the lower Perrin Dr. location where plaintiffs’ homes are located.

The evidence considered, we conclude that it is more probable than not that the damage to plaintiffs’ property was caused not from the construction of defendant’s warehouse but from the relative elevations of St. Bernard Hwy. and Perrin Dr. resulting in the flow of water to plaintiffs’ property on the day of this extremely heavy rainfall. Plaintiffs simply failed to prove causation between Garic’s construction and the flood damage.

Accordingly, the judgment of the trial court is reversed and set aside. Judgment is now rendered in favor of defendants, Charles A. Garic, III, d/b/a Orlandia Storage Warehouse, and Security Insurance Group of Hartford, dismissing plaintiffs’ suit. Costs to be paid by plaintiffs.

REVERSED AND RENDERED.

      . The undisputed testimony of defendants’ expert was that the St. Bernard Highway system did not incorporate sub-surface drainage into which Garic could have connected the drain.

      . LSA-C.C. Art. 656 reads as follows:
      “Art. 656. Obligations of the owners. The owners of the servient estate may not do anything to prevent the flow of water. The owner of the dominant estate may not do anything to render the servitude more burdensome.”

      . LSA-C.C. Art. 667 reads as follows:
      “Art. 667. Limitations on use of property. Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”


author: BARRY, Judge.

text:
    Leonard GORDON v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Budget Rent-A-Car of New Orleans, Inc., Homer Brister, Snee Lumber Company, and the XYZ Insurance Company.
    No. 12228.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Rehearings Denied April 16, 1982.

      Peter Frank Liberto, New Orleans, for plaintiff-appellant.
    Edward J. Rice, Jr., New Orleans, for defendant-appellee.
    Montgomery, Barnett, Brown & Read, New Orleans, Paul Lavelle, Metairie, for intervenor-appellant.
    Richard S. Vale, Metairie, for original defendants and third party petitioners.
    Before REDMANN, GULOTTA and BARRY, JJ.
   BARRY, Judge.

Plaintiff appeals from a directed verdict granted by the Trial Judge at the close of his case before a jury. The only issue is to determine if, after considering all of the evidence in the light most favorable to the plaintiff, reasonable and fair-minded persons might conclude that plaintiff was outside the course and scope of his employment at the time of his accident, and thus entitled to a trial by jury.

Plaintiff was a passenger in a vehicle owned by his employer and driven by a fellow employee when he was severely injured in an intersectional collision with a tractor-trailer. Plaintiff alleges that at the time of the accident he was on a lunch break and not a mission for his employer. Defendants counter that plaintiff and the driver were permitted use of their employer’s car on this particular occasion because they were going to pick up lunch for their supervisor.

Plaintiff sued the truck driver, his employer and insurer, and his own employer, Budget Rent-A-Car and Budget’s liability insurer, National Union Fire Insurance Company. United States Fidelity & Guaranty Company intervened for compensation and medical benefits paid as a result of the accident. Trial was held before a jury and following plaintiff’s case in chief all defendants were granted a directed verdict. Plaintiff and U.S.F. & G. now appeal as to plaintiff’s employer (Budget) and the automobile’s liability insurer (National Union). We affirm as to the employer because if the two employees were not in the course and scope of employment then the employer is not liable in tort under respondeat superior, and if they were, workers’ compensation is the exclusive remedy. We set aside as to the automobile insurer.

In oral reasons from the bench the Trial Judge stated it was within his discretion “.. . to determine from all of the evidence presented thus far if there is sufficient information for this jury or sufficient evidence for this jury to determine if on the facts of this case as they have been fully presented by the plaintiff, the plaintiff is entitled to a verdict from this jury.” The Judge continues: “The evidence is such that in the opinion of this court, this jury could not with any degree of reasonableness conclude that this man and the driver of the vehicle in which he was injured was at the time of this accident acting in any way or capacity other than within the course and scope of his employment.” The Judge then briefly reviews the testimony and finds that plaintiff was on a mission for his supervisor and therefore in the course of his employment, and “... concludes from the evidence that this jury has to resolve the issue of fact in favor of the defendants, Budget Rent-A-Car Company and National Union Fire Insurance Company and as a matter of law having resolved that question of fact, the Court must conclude that as a matter of law the plaintiff’s sole and only remedy under the law is workmen’s compensation.”

The basis for a directed verdict in a jury trial is found in LSA-C.C.P. art. 1810(A), however, the article does not set forth what criteria the trier of fact should use in weighing the evidence. Article 1810 follows the provisions of FRCP Rule 50(a) and this federal counterpart has been interpreted to permit the Trial Judge to grant the motion only when “.. . facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict...”. Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969) at p. 374. Our Third Circuit adopted this reasoning in holding that all of the evidence should be viewed in the light most favorable to the party opposing the motion, and if there is evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions, a motion for directed verdict should be denied. Campbell v. Mouton, 373 So.2d 237 (La.App. 3d Cir. 1979) cited in Sevin v. Shape Spa for Health and Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir. 1980). Ragas v. Argonaut Southwest Insurance Co., 379 So.2d 822 (La.App. 4th Cir.) aff’d 388 So.2d 707 (La.1980); Perkins v. American Machine & Foundary Co., 385 So.2d 492 (La.App. 1st Cir.) writ den. 393 So.2d 727 (La.1980).

We are confronted with a purely factual determination. Was plaintiff on a mission related to his employment when he left the premises in a company car during his lunch time? After reviewing all of the evidence as most favorable to plaintiff, is that evidence of such quality and weight to cause reasonable and fair-minded persons, in the exercise of impartial judgment, to reach different conclusions? If so, the lower court erred in taking this case from the jury by a directed verdict.

Plaintiff worked as a “car hiker” for Budget which involved picking up cars, having them cleaned, repaired, etc. Plaintiff testified that on the morning of the accident he, along with Edward Martin, a co-employee, and Nolan Darby, their supervisor, performed their routine chore of retrieving automobiles. Plaintiff said he and Martin were told to go to. lunch and permitted use of a company car. Martin and plaintiff each punched out their time cards before leaving. After Martin and plaintiff were in the car, Darby called to them and requested they get him a sandwich. Plaintiff’s time card is in evidence and shows that it was punched back in two minutes later, but plaintiff testified he was absolutely certain he hadn’t punched back in. Other time cards in evidence show that when plaintiff didn’t take lunch there is a notation “no lunch” with someone’s initials. Plaintiff was firm in asserting that he and Martin were only going to lunch, had punched out, and were bringing back a sandwich for their supervisor as a favor.

On cross-examination the defense questioned plaintiff about his deposition in which he said that he had no intention of going out to lunch until he was asked by Darby to get a sandwich. Plaintiff testified that he didn’t have transportation and could not leave the premises unless in another’s car. This testimony is not clear but plaintiff indicates Darby told him it was permissible to leave and use the company car. Plaintiff reaffirmed that it was not until he and Martin were in the automobile and ready to leave when Darby asked them to get him a sandwich.

The evidence conflicts concerning use of company cars. Plaintiff testified he was aware of company policy forbidding personal use of their cars, but on several occasions Budget allowed its vehicles to be used to get lunch. Supervisor Darby by deposition said he told plaintiff and Martin to take the company car on the day of the accident in order to retrieve a repaired vehicle at a body shop, but on cross-examination plaintiff testified he didn’t recall that instruction.

Martin was killed in the accident and plaintiff was the only witness to testify (other than Darby’s deposition) regarding the events on the day prior to the collision. Our review of the record shows testimony that was both favorable and unfavorable to the plaintiff. Plaintiff did know of the employer’s policy against personal use of company cars, but stated several times in his testimony that the cars were often used by employees, with the supervisor’s approval, to go to lunch. In the Trial Judge’s Reasons, he stated plaintiff said he never used a company car to go to lunch, but we read plaintiff’s testimony to the contrary. Nor is the evidence clear that the company car was used on this day primarily to get a sandwich for the supervisor. We find ten different times in the record when plaintiff testified that bringing the sandwich back for his supervisor was a favor and not a part of his job. A reasonable man could easily believe this testimony. Plaintiff’s time card is the only one in a group of time cards with a “punch in” two minutes after the “punch out”. On other days when plaintiff worked through lunch the card was merely initialed by the supervisor. If the plaintiff and Martin were not already set to use the company car when the supervisor asked them to bring him a sandwich, why wasn’t the same procedure used on the time card to indicate no lunch?

Admittedly, plaintiff’s answers were weak when subjected to vigorous cross-examination by able defense counsel. Plaintiff’s testimony was both favorable and unfavorable to his cause, but it does raise substantial questions of fact creating the possibility (if not the probability) that plaintiff’s version has merit. “Making credibility evaluations is one of the primary duties of a jury and the trial court may not take this duty from the jury unless the party opposing the directed verdict has failed to produce sufficient evidence upon which reasonable and fair-minded persons could disagree.” Campbell v. Mouton, supra, at p. 240.

The law on lunch time accidents is unclear. The general rule is that “an accident occurs in the course of an employment when it takes place during the time of such employment,” and it arises out of employment when it is “. . . the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed.” Kern v. Southport Mill, 174 La. 432, 141 So. 19, 21 (1932) (Emphasis in Original). “Ordinarily, an employee who leaves his employer’s premises and takes his noon hour meal at home or some other place of his own choosing is outside the course of his employment from the time he leaves the work premises until he returns. In the absence of a further showing it is assumed that the nature of his employment has not affected his personal eating practices, and the mere fact that he expects to return to his job at the end of the lunch hour is not enough to warrant the inclusion of this period within the course of his employment.” Malone, Louisiana Civil Law Treatise, Yol. 13 § 163 (1980).

In order to determine defendants’ liability all of the circumstances surrounding this accident should be closely examined; such as, when the accident occurred, if on or off the company premises, was the accident a risk of employment, whether the employee was paid at the time of the accident, was the employee’s activity at the direction of or in the interest of the employer. In Smith v. Orleans Management Corporation, 242 So.2d 288 (La.App. 4th Cir. 1970) this court stated the proper test in a marginal case to be: "... to what degree the injured employee was subjected to the hazard causing the injury by his status as an employee and to what degree the injured employee’s activities at the time were at the direction of or in the interest of his employer.” Id. at p. 289 (citations omitted). The proper question here is to ascertain if plaintiff was on his own time merely accommodating his supervisor or was plaintiff acting at the direction of his supervisor.

Our review of all the evidence leads us to conclude that it is of such quality and weight that reasonable and fair-minded persons could easily reach different conclusions and the evidence is not so strong and overwhelming as to preclude a contrary opinion. We feel our learned trial brother made a credibility determination as to the insurer which should have been left for the jury’s determination.

For the foregoing reasons the judgment of the District Court granting a directed verdict is affirmed as to Budget Rent-A-Car of New Orleans, Inc. only, and is annulled and set aside as to National Union Fire Ins. Co. and this matter is remanded for further proceedings. Costs of this appeal are assessed to National Union.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . LSA-C.C.P. art. 1810(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.”


text:
    SUPER CITY BOXING PRODUCTIONS, INC. v. LOUISIANA STATE ATHLETIC COMMISSION, HMC Management Corporation, Louisiana Stadium and Exposition District, Pace Management Corporation, New Orleans Boxing Club and Ticketmaster of Louisiana, Inc.
    No. 12795.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearings Denied April 16, 1982.

      M. H. Gertler, New Orleans, for plaintiff-appellee.
    Michael E. Botnick, New Orleans, for defendant-appellant (Pace Management Corporation and New Orleans Boxing Club).
    Louisiana Department of Justice, William J. Guste, Jr., Atty. Gen., Warren E. Moule-doux, Louis M. Jones, Joseph Giarrusso, Jr., Asst. Attys. Gen., Joseph E. Kopsa, Baton Rouge, for Louisiana State Athletic Commission and Louisiana State Exposition District, defendants-appellants.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   GULOTTA, Judge.

In June, 1981, the Louisiana State Athletic Commission, through its chairman, Lindsey J. Williams, orally granted Super City Boxing Productions, Inc., a Louisiana licensed fight promoter, “tentative permission” to reserve September 16, 1981 for a live boxing championship fight. Super City had intended to promote a fight on that date between Sean O’Grady and Claude Noel.

Precipitated by Super City’s complaint that Pace Management Corporation and the New Orleans Boxing Club were interfering with its promotion of the fight by advertising the sale of a closed circuit television championship fight between Sugar Ray Leonard and Tommy Hearns on the same date, the Commission conducted hearings on August 31 and September 2 and 4. At the conclusion of these hearings the Commission denied “. . . Super City any further rights to September 16 on which to promote a professional boxing match.”

Upon Super City’s petition for injunctive relief, the trial judge stayed the Commission’s order. The September 15,1981 judgment of the trial court further enjoined Pace and the New Orleans Boxing Club from televising or showing the Leonard/Hearns closed circuit telecast scheduled for September 16.

In written reasons, the trial judge concluded that the Commission, had “... acted arbitrarily, capriciously and abused its discretion ..., when it revoked the right of Super City Boxing Productions to promote a boxing event on September 16, 1981.” In those reasons, he stated:

“R.S. 4:66A provides that a club licensed to hold, conduct or give professional boxing contests is not required to furnish signed contracts to the Commission until six days before the contest in the case of main events. Accordingly, this Court finds that based upon the record that the State Athletic Commission abused its discretion in revoking the right of Super City Boxing to promote a boxing event on September 16, 1981, and prior to September 10, 1981, the last date that Super City had to comply with the requirement that signed contracts be submitted to the Commission six days prior to the contest. Once a date is tendered to a boxing club to promote an event, this date becomes a property right of that club and cannot be revoked except for cause. The mere fact that a club has not submitted signed contracts to the Commission in advance of the six day statutory period does not give the Commission the right to revoke the tendered date and strip the agreed club of its property right to that date.”

Pace, appealing, claims the Commission was within its authority to deny plaintiff’s permit for the September 16 date because of Super City’s failure to arrange for an arena and a fight on that date. Pace further contends that Super City has failed to show irreparable injury and is not entitled to injunctive relief. Finally, Pace argues that a club or theatre sponsoring a televised or other broadcast fight from outside the state needs only to be licensed and no permit from the Commission is required.

The Louisiana State Athletic Commission and the Louisiana State Exposition District, also appealing, claim Super City had no cause or right of action under the Louisiana Administrative Procedure Act, LSA-R.S. 49:951, et seq., for judicial review of the Commission’s action on September 4. In this connection, defendants point out that since Super City had only received a “tentative date” for a proposed boxing contest and had no “permit” from the Commission to promote a specific match, it had no legitimate claim of entitlement or property interest sufficient to trigger an adjudicatory hearing or reviewable order. These defendants claim the trial judge erred in concluding plaintiff had acquired an exclusive property right and in finding the actions of the Commission arbitrary, capricious and an abuse of discretion.

We do not agree. Accordingly, we affirm the judgment of the trial court.

At the outset, we reject the Commission’s argument that plaintiff had no right or cause of action for judicial review. We conclude, as did the trial judge, that the Commission’s oral granting of a “tentative date” of September 16 created a property interest in Super City. Upon obtaining this tentative date, Super City, pursuant to LSA-R.S. 4:66(A), had the right until six days before the fight to submit contracts in order to receive a permit. To allow the Commission to revoke its tentative permission unilaterally before the lapse of this statutory time period because of plaintiff’s failure to furnish contracts would render the six day requirement meaningless.

Accordingly, we hold that the Commission’s September 4 denial of Super City’s right to promote a boxing contest was an “adjudication” or an “agency process for the formulation of a decision or order”, within the meaning of LSA-R.S. 49:951(1), affecting a property right of Super City. Plaintiff was therefore entitled to seek judicial relief from the Commission’s order in the district court pursuant to the Louisiana Administrative Procedure Act, LSA-R.S. 49:951, et seq.

Having so concluded, we now turn to the merits of the trial judge’s decision.

It is undisputed that in June, 1981 the Commission orally granted tentative permission to Super City to reserve September 16 for a live boxing match. The record is clear also that on June 26, 1981, a representative of Super City was notified by Mike Levy, Vice-President of Hyatt Management Corporation, that the Superdome would be available on September 16,1981 to whoever was promoting the Leonard/Hearns championship fight. A tender of a deposit by Super City to Levy on June 26 for use of the Superdome on September 16 was refused.

According to Levy, although he had no assurance on June 26 that the Leonard/Hearns fight would take place on September 16, it was “business judgment” that this fight would be more lucrative for the Superdome than an unnamed championship fight to be sponsored by Super City. After receiving an August 4, 1981 mailgram advising that the closed circuit telecast of the Leonard/Hearns fight would take place on September 16, 1981, Levy leased the Super-dome to Pace Management Corporation for that date.

Although Pace Management Corp. was granted the lease, the telecast was being promoted under the license of Lou Messina and the New Orleans Boxing Club. However, according to Lindsey J. Williams, chairman of the Louisiana State Athletic Commission, it was not until August 13 that Messina made an application for the September 16 date. Messina testified that he applied to the Commission for that date around August 24. Mike Cusimano, secretary-treasurer of the Commission, stated that on August 31 he had refused to accept documentation as proof of Messina’s status as promoter of the Leonard/Hearns fight.

Despite the lack of a permit by the Commission to Messina and the New Orleans Boxing Club up to and including September 4, and notwithstanding the prohibition in LSA-R.S. 4:66 that no licensed promoter may publicly announce or advertise that any bout will take place unless formally approved by the Commission, it is clear that earlier advertisements, publications and notices of the Leonard/Hearns fight had been made. Furthermore, although the lease was entered into between Hyatt Management Corporation and Pace Management for the Superdome on August 4, 1981, Mike Levy had made a decision on July 14 that he would not allow Super City use of the Superdome for its promotion on September 16.

The reasoning of the Commission in revoking Super City’s tentative permission for the September 16 date was that no plans or arrangements had been submitted to the Commission in furtherance of the September 16 promotion by Super City. According to Lindsey Williams, Super City “never presented” to the Commission “a match or an arena to stage the fight in.”

Cusimano stated that a promoter “cannot sit on a tentative date”. He corroborated Williams’ testimony that nothing had been heard from Super City regarding confirmation of arrangements and contracts for a September 16 live fight. When confronted with LSA-R.S. 4:66(A), which provides that a promoter shall furnish signed contracts to the Commission six days before the contest, Cusimano stated that this is not a hard and fast rule as applied by the Commission. He explained that after oral tentative permission is granted, according to the custom and practice of the Commission, it stands to reason that a promoter must do something in furtherance of the match. Arrangements for an arena must be made, information exchanged between the promoter, fighters, the stadium, and the. Commission in furtherance and confirmation of the fight. He stated that Super City had not come in with any documentation up until the September 4 hearing and Super City’s failure was the basis for the revocation.

Despite the well-reasoned logic reflected in Cusimano’s testimony, the statute clearly allows a promoter to present signed contracts to the Commission no later than six days before the fight. The cause of the problem in this case may perhaps be a legislative one. In this respect the trial judge articulately stated:

“. .. In the event that the Commission feels that this six day statutory period does not give the Commission ample time prior to an event to insure that all arrangements have been made for a successful contest, then the remedy of the Commission is to seek a legislative change and require that a club submit the signed contracts as well as the lease for an arena at least thirty or forty-five days prior to the contest.”

Furthermore, we add that it was incumbent on the Commission to notify the promoter, who had been given oral, tentative permission, of the possibility of conflicting promotions on the same date, especially where the Commission had not been informed of any action on the part of the promoter in furtherance of the tentative contest and was aware of another group’s interest in a different promotion on the same date. This is particularly true when LSA-R.S. 4:66(B) provides that the Commission shall not grant a permit to more than one club in the same parish for the same date. Accordingly, we cannot conclude that the trial judge erred in reinstating Super City’s right to promote and hold a boxing contest in Orleans Parish on September 16, 1981.

Nor do we find any error in the trial judge’s conclusion that Super City was entitled to injunctive relief. The testimony of Anthony P. Marullo was that failure of Super City to obtain the September 16 date could result in the loss of its license to promote boxing, as well as loss of contacts and money. His testimony was corroborated by Eddie Sapir and to some extent by Lindsey Williams. Under these circumstances, injunctive relief was warranted.

Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . Two other orders not pertinent to the issues on appeal were also issued by the Commission on September 4 on Super City’s complaint.

      . LSA-R.S. 4:66(A) provides as follows:
      “66. Professional boxing contracts; permits A. Each club licensed to hold, conduct or give professional boxing contests or exhibitions shall furnish signed contracts to the commission as follows: (1) in the case of main event boxers, six days before the contest or exhibition; and (2) in the case of preliminary boxers, four days before the contest or exhibition. No such licensed promoting club, matchmaker, manager, boxer, or wrestler, may publicly announce or advertise that any bout or exhibition will take place unless such bout or exhibition has been formally approved by the commission.”


author: BOUTALL, Judge. KLIEBERT, Judge,

text:
    BENEFICIAL FINANCE COMPANY OF LOUISIANA v. George E. HAVILAND & Mary Haviland.
    No. 12201.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied April 16, 1982.

      James R. E. Lamz of Thorne & Slone, Slidell, for Beneficial Finance Co. of Louisiana plaintiff-appellant.
    Joseph N. Mole of Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for Digital Equipment Corp. defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This is an appeal from a denial of judgment against a garnishee for the amount of the debtor’s unpaid judgment, but assessing attorney’s fees against the garnishee for failure to timely answer interrogatories. The plaintiff has appealed the denial of judgment, and the garnishee has answered the appeal contesting the assessment of attorney’s fees.

The basic issue between the parties is the validity of the trial court’s action in denying the garnishor’s judgment against the garnishee in proceedings held after a prior judgment of default against the garnishee had been reopened under the authority of R.S. 13:3923. The procedural sequence is as follows.

Beneficial Finance Company of Louisiana obtained a judgment against George E. Haviland and Mary Haviland on September 18,1979, in the Twenty-Second Judicial District Court of St. Tammany Parish. On November 27, 1979, Beneficial filed a petition in the Twenty Fourth Judicial District Court for the Parish of Jefferson against Digital Equipment Corporation alleging that George Haviland was presently employed by Digital, seeking the issuance of a writ of fieri facias and garnishment of the wages of Haviland to satisfy its judgment. Digital, a Massachusetts corporation, was served through its agent for service of process, C. T. Corporation System, and in answer to the garnishment and interrogatories simply sent a letter to the Sheriff of Jefferson Parish informing him that Havi-land was not an employee of theirs since November 3, 1979, several weeks before the garnishment was filed. Not having received answer, Beneficial then filed a rule against Digital to show cause why judgment should not be rendered against it for the full sum of the judgment plus interest, costs, etc., as well as for costs of the present proceedings and reasonable attorney’s fees for having to bring the rule. Digital did not answer or appear for that rule and a judgment was rendered on the 15th day of February, 1980, by default, against Digital in the sum of $4,475.74 with interest and costs as well as attorney’s fees in the amount of $250.00 for the prosecution of the motion.

After several months, Digital became aware of the judgment and on June 3,1980, filed a motion to reopen the case pursuant to R.S. 13:3923 outlining its reasons for the request. It attached to that motion a memorandum as well as a sworn affidavit of facts and exhibits in the case. After considering these, the court issued an order staying the execution of the judgment against the garnishee, Digital, pending termination of the garnishee’s motion to reopen. A contradictory hearing was held on the motion to reopen on July 10, at which time garnishee filed answers to the garnishment interrogatories, and the judge rendered judgment in favor of Digital making its rule absolute and granting a new hearing on Beneficial’s rule for judgment against the garnishee. On July 23, Beneficial moved to set for trial the rule for judgment against the garnishee for the amount of the unpaid judgment, asking for an increase in attorney’s fees. This rule was subsequently heard before a different judge, the court being on summer schedule, and judgment was rendered in favor of Digital, denying Beneficial’s rule for judgment against the garnishee for the amount of the unpaid judgment but condemning Digital to pay attorney’s fees in the amount of $750.00 together with legal interest and all costs. Beneficial thereupon took a de-volutive appeal to this court from that judgment of September 10, 1980, and Digital has answered the appeal.

On this appeal, Beneficial first complained that insufficient evidence was presented on the rule to justify the trial judge’s refusal to grant it a judgment against the garnishee, but the record on appeal contains no transcript of evidence from which we can ascertain with preciseness what the trial judge considered. Under such circumstances, we must consider the judgment to be correct unless it can be clearly shown that the trial judge was in error. We conclude that he was not. One of the basic reasons for that conclusion is that there is no serious dispute to the fact that George Haviland was last employed by Digital Equipment Corporation on November 3, 1979, several weeks before the garnishee proceeding was filed against Digital, and accordingly there was no factual liability for judgment to be rendered against Digital on Beneficial’s petition for wage garnishment. Procedurally, however, the situation is much more complicated.

We have outlined in detail the procedural steps above, because this case presents to the court for answer the question of whether a petitioner who files a wage garnishment, and subsequently obtains a default judgment pursuant to Code of Civil Procedure Article 2413 against the garnishee for the amount of the creditor’s unpaid judgment based on failure of the garnishee to file its sworn answers to garnishment interrogatories, may be subject to having that judgment set aside and the case reopened pursuant to L.R.S. 13:3923. Under the facts of this case, we conclude that the garnishee may obtain a reopening of the case and have the judgment set aside.

As may be seen from a reading of the two statutory quotations, Section 3923 clearly permits a reopening of the case when judgment by default is taken against the garnishee. The issue is thus narrowed to the question of whether the judgment by default referred to is only a. continuing judgment which fixes the amount to be withheld and paid by the employer or does it apply to a judgment of default for the full amount of the indebtedness under C.C.P. Article 2413. We recognize that there is a difference existing under the general garnishment proceedings set out in the Civil Code as compared to the wage garnishment provisions set out in Revised Statute Title 13. However, taken together, these two bodies of garnishment law constitute the general garnishment procedures, together with the special provisions applicable to wage garnishment because of the special problems inherent therein. This is especially true in the situation where, as here, the garnishee does not answer the interrogatories timely. The wage garnishment provisions of Title 13 do not provide for penalties such as contained in the Civil Procedure Articles. Thus, if it is contended that these two procedures are completely independent of each other, the judgment creditor in this case has no right to utilize the provisions of C.C.P. Article 2413 because the petition that he brought is solely and exclusively a wage garnishment. To be consistent on this issue, one must conclude that the two sets of law must be considered as supportive of each other and applied in each applicable situation. Otherwise, we are presented with a situation where it is contended that the wage garnishment proceedings can be ignored by obtaining a judgment under other statutory provisions not contained therein, yet the garnishee not be able to seek relief under the very statutory provisions which are used to seek his liability in the first instance. To put it in simple language, one must be either fish or fowl. If the two bodies of law are mutually exclusive, the judgment creditor had no authority to utilize C.C.P. Article 2413. If the two bodies of law are read together, then the defaulted wage garnishee has a right to reopen under R.S. 13:3923.

We have been referred to our previous decision in the case of Quick Finance Service, Inc., v. Youngblood, 243 So.2d 321 (La. App. 4th Cir. 1971). We note primarily that that case did not turn upon the point of wage garnishments but was a case involving an ordinary garnishment and not a wage garnishment under Title 13. Additionally, the procedural device upon which that case turned was a motion for nullity of judgment which came about after payment of the garnishment judgment. We quite agree that under the facts of that case, R.S. 13:3923 does not apply. Both the facts and the procedure are different in that case and this case, and we accordingly distinguish the holding in that case from these facts and procedures. We do not consider that the dicta in that case arising from its interpretation of the case of Julius Aaron and Son v. Berry, 165 So. 496 (La.App. 2d Cir. 1936), to be controlling nor to be a correct analysis of the holding in the Aaron case.

We have been referred to several other cases in our jurisprudence which touch upon some facet of the situation presented here. None, however, have our precise procedural situation nor facts. Suffice it to say that the trial judge in this case did reopen the matter and after another hearing at which he apparently considered the merits of the garnishment judgment, he denied the creditor’s petition for judgment. We conclude that he had the legal authority to reopen the case under R.S. 13:3923, and under the state of this record we cannot say that he abused the discretion granted him under that section.

The final issue herein is the penalty of attorney’s fees complained of by appellee in its answer to the appeal. C.C.P. Article 2413 permits the imposition of attorney’s fees as a penalty for failure to answer the interrogatories. Thus, in the default judgment, the court concluded that $250.00 was a reasonable amount to impose. There were two other hearings on this matter, one the motion to reopen and the final one, the merits of the garnishment, as well as several other motions and pleadings. The last trial judge simply felt that he should continue the award of $250.00 for each appearance, and there is nothing in the record to show that the amount is excessive. As a matter of law, we have indicated in our discussion above that because of the necessary concordance of the garnishment procedures under both Title 13 of the Revised Statutes and the garnishment articles of the Code of Civil Procedure, that resort may be had by the wage garnishor to the penal provisions of C.C.P. Article 2413 and indeed a number of cases in our jurisprudence have recognized its availability. For the reasons expressed above, the judgment appealed is affirmed, however, the costs of this appeal shall be assessed against Beneficial Finance Company of Louisiana.

AFFIRMED.

KLIEBERT, Judge,

dissenting.

The majority opinion takes the position the trial judge merely reopened a wage garnishment proceeding and after considering the merits of the garnishment denied the creditor’s petition for judgment. This position ignores the fact that Digital had been properly served with a garnishment petition, interrogatories and a court order making it a garnishee and ordering it to respond to the interrogatories. When Digital failed to respond to this order, it was then served with a rule to show cause why a judgment in the amount of the original debtor’s indebtedness should not be rendered against it for its failure to respond. Again Digital failed to respond. As a result, pursuant to the provisions of Article 2413 of the Code of Civil Procedure, judgment in the full amount of the debtor’s original indebtedness was rendered against Digital. After the time for applying for a rehearing and a suspensive appeal had expired, the trial judge, citing as his authority the last sentence of R.S. 13:3923, reopened the wage garnishment proceeding and set aside the final judgment previously rendered against Digital.

Thus, the issue presented by this appeal is not whether a judgment garnishing accrued and future wages of an employee from his employer can be reconsidered by the trial court rendering same as circumstances change, but rather, whether the trial judge can set aside a judgment rendered in favor of the creditor pursuant to Article 2413 of the Code of Civil Procedure once the judgment becomes final.

In concluding the final judgment can be set aside, the majority opinion concluded that the provisions of R.S. 13:3921 through R.S. 13:3928 are supportive of and have to be read with the provisions of Articles 2411 thru 2417 of the Code of Civil Procedure. I concur in that conclusion, but point out that R.S. 13:3921 thru 3927 were enacted to permit garnishment of as yet unearned wages and hence created the necessity of continued retention of jurisdiction by the trial court of a judgment garnishing future wages because of the ever present realization that although garnished, the wages may never in fact be earned. Under CCP Article 2413, however, the judgment against Digital which had become final is not based on the accrued wages or future wages of its employee, but rather, on the provision “. . . If the garnishee fails to answer within the delays provided by Article 2413 the judgment creditor may proceed by contradictory motion against the garnishee for the amount of the unpaid judgment, with interest and cost...” The continued retention of jurisdiction provided by R.S. 13:3923 for a judgment garnishing future wages is not applicable because Digital was not cast in judgment for the accrued or future wages of its employee, but rather for the amount of the indebtedness owed by its former employee because it failed to respond to the court ordered garnishment proceeding.

The issue presented to the court here was previously presented to this court in Quick Finance Service, Inc. v. Youngblood, 243 So.2d 321 (4th Cir. 1971), writ denied 258 La. 213, 245 So.2d 411. The majority seeks to distinguish the Quick case on two grounds — (1) Quick did not involve a wage garnishment proceeding and (2) the procedural device at issue in Quick was a motion for nullity of judgment.

The issue here and in Quick, supra, is whether a judgment rendered pursuant to CCP Article 2413 is final. The garnishee defendant citing R.S. 13:3928 maintained the garnishment proceeding should be reopened so he could present the defense he had to the judgment. Although the judgment here had become final as it had in Quick, supra, the trial judge reopened the garnishment proceeding to permit the garnishee to produce his defense; i.e., the employee was no longer employed by Digital. Judge Samuel, as the organ of this court, citing Julius Aaron & Son v. Berry, 165 So. 496 (2nd Cir. 1936), refused to order a reopening of the garnishment proceeding based on R.S. 13:3923 for the reasons stated at pages 323 and 324 as follows:

“We have not failed to consider appellant’s reliance upon LSA-R.S. 13:3923, which provides as follows:
“It shall not be necessary that more than one writ of garnishment or one set of interrogatories be served on the garnishee in such cases, but the court shall render judgment providing for the monthly, semi-monthly, weekly or daily payments to be made to the seizing creditor, according to the manner best suited to the circumstances, until the indebtedness is paid. The court, in its discretion, may reopen the case upon the motion of any party concerned for evidence affecting the proper continuance of such judgment, and the court shall retain jurisdiction to amend or set aside its judgment at any time in its discretion. Should judgment by default be taken against any party garnishee, he may obtain a reopening of the case upon proper showing and within the discretion of the court.” (Emphasis added.)
The appellant relies specifically on the above-emphasized portion of the section, but the intent of the section can best be determined by the whole context. The section relates to “Garnishment of Wages, Salaries and Commissions” and was wisely enacted in contemplation of the indefiniteness and uncertainty of the continued employment of an employee debtor at a constant wage or fixed payment schedule and provides a remedy for relief as these conditions may change. Julius Aaron & Son v. Berry, 165 So. 496 (La.App.2d Cir. 1936).1 It contemplates a continuing judgment against a garnishee during the period of employment. This is manifest from the provision that it will not be necessary to issue more than one writ and for continuing periodic payments. The provision for amendment or setting aside the judgment can only relate to such continuing judgments and does not provide a remedy for the situation in which the appellant garnishee finds itself in this case.

The failure of Digital to respond resulted in harsh consequences, nevertheless, as was stated and done by Judge Samuel in the Quick case, the law must be applied with consistency.

See also, Mid-City Investment v. Batiste, 248 So.2d 88 (1st Cir. 1970). This case involved a wage garnishment proceeding. The garnishee there had timely filed a motion for a new trial. The original panel hearing the case affirmed the trial judge’s ruling refusing to grant the new trial so that the employer-garnishee could show the employee no longer worked for him. On an en banc rehearing, the appellate court ordered the granting of the new trial. Although the last sentence in R.S. 13:3923 relied on here by the majority opinion was the same then as it is now, it was not discussed in the case, but Judge Sartain, in his dissent (on rehearing the dissent became the majority opinion) at page 92, said:

“My opinion would be different if the judgment pro-confesso had become final but in the instant matter it had not and at the time of the application for the new trial it appeared apparent that garnishee’s defense was a valid one.”

In my view, the majority opinion refuses to apply the clear requirement of the law in order to avoid the harshness of the result. Accordingly, I remind them of the adage “bad cases make bad law”. The effect of the majority opinion would be to permit garnishees to ignore court ordered garnishments unless at the time the garnishment issues they are in fact indebted to, or hold the asset of, or have the original debtor in their employment. The very purpose of CCP Article 2413 is to force the garnishee to inform the creditor whether it holds assets of, is indebted to, or has the original debtor in its employment. Accordingly, I respectfully dissent from the majority opinion.

      . C.C.P. Article 2413. “If the garnishee fails to answer within the delay provided by Article 2412, the judgment creditor may proceed by contradictory motion against the garnishee for the amount of the unpaid judgment, with interest and costs. The failure of the garnishee to answer prior to the filing of such a contradictory motion is prima facie proof that he has property of or is indebted to the judgment debtor to the extent of the judgment, interest, and costs. Judgment shall be rendered against the garnishee on trial of the motion unless he proves that he had no property of and was not indebted to the judgment debtor. If on the trial of such motion, the garnishee proves the amount of such property or indebtedness, the judgment against the garnishee shall be limited to the delivery of the property or payment of the indebtedness, as provided in Article 2415. Regardless of the decision on the contradictory motion, the court shall render judgment against the garnishee for the costs and a reasonable attorney’s fee for the motion.”
      L.S.A.-R.S. 13:3923. “It shall not be necessary that more than one writ of garnishment or one set of interrogatories be served in such cases, but the court shall render judgment for the monthly, semi-monthly, weekly or daily payments to be made to the seizing creditor according to the manner best suited to the circumstances, until the indebtedness is paid. The garnishor shall serve upon the garnishee the citation, the petition, the garnishment interrogatories, the notice of seizure, and a statement of sums due under the garnishment, such statement to include, but not be limited to the principal, interest, court costs incurred to date, and attorney’s fees due under the judgment. The court, in its discretion, may reopen the case upon the motion of any party concerned for evidence affecting the property continuance of such judgment, and the court shall retain jurisdiction to amend or set aside its judgment at any time in its discretion; however, all effects of the seizure by garnishment shall cease upon the termination of employment of the debtor with the garnishee, unless the debtor is reinstated or reemployed within one hundred eighty days after the termination. Should judgment by default be taken against any party garnishee, he may obtain a reopening of the

        case upon proper showing and within the discretion of the court.” (Emphasis added)


author: SCHOTT, Judge.

text:
    Mrs. Louise Lagrange Noel, Widow of Lawrence Thomas NOEL, Individually and as Natural Tutrix of Donna Louise Noel, Michael Thomas Noel, Glenda Faye Noel and Linda Kaye Noel, Minors; Arlene Marie Noel; Mrs. Dorothy Lawrence Noel, Wife of Roger Arceneaux v. ESGARD, INC. and Continental Insurance Company.
    No. 12469.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied April 16, 1982.

      Lee R. Miller, Jr., New Orleans, Jerold Edward Knoll, Marksville, H. W. Christen-berry, Jr., New Orleans, for plaintiffs-appellants.
    J. Walter Ward, Jr., Christovich & Kear-ney, New Orleans, for defendants-appellees.
    Before REDMANN, SCHOTT and CIAC-CIO, JJ.
   SCHOTT, Judge.

This is a wrongful death action by the widow and children of Lawrence Thomas Noel who died allegedly as a result of the negligence of defendant, Esgard, Inc., in supplying a defective product for Noel’s use and/or failing to warn him of the product’s toxicity. After a bench trial the court dismissed plaintiffs’ suit. They have appealed and raise issues which are essentially factual, charging that the trial judge committed manifest error in failing to award a judgment to plaintiffs.

Decedent was a pipe fitter employed by Avondale Shipyards on the day of his fatal accident. He was assigned with Charles Audler to repair a valve inside a column underneath a submersible drilling rig being constructed by Avondale. The valve was located 40 feet down into the column. On the day before, the inside of the column had been sprayed with a coating called Safe-T-Kote, manufactured by Esgard. Noel and Audler were both wearing air masks connected to a common hose supplying air from outside the column. The hose somehow became disconnected and both men were overcome by the fumes from the Safe-T-Kote. Other employees of Avondale came to their assistance. They succeeded in hoisting Au-dler from the column and were in the process of hoisting Noel when the rope slipped or became untied and Noel fell about 15 feet to the bottom of the column. He was then hoisted out of the column and brought to a hospital where he died on October 4, 1973.

Esgard had formulated and manufactured the Safe-T-Kote since the company started in March, 1973. It was designed as a coating for surfaces which would be exposed to salt water and was to be sold to industrial customers only, not consumers. Esgard had arranged with the owner of the rig being constructed by Avondale to use the Safe-T-Kote on a test basis, and it was estimated that 250 gallons would be sufficient to accomplish the coating of all of the columns and related areas under the drilling rig. However, on September 20 Esgard was notified that more of the coating was needed and Esgard’s chemist, Frank C. Andres, who had concocted the coating, inspected the area which had been completed. He found that the coating was being applied improperly, in that the thickness of the coating was as much as 30 mm in some places where the proper application would have been no more than 9 mm. In any event, additional Safe-T-Kote was supplied and the application of the coating was completed.

Andres testified: Before the application began he met with the safety man and paint superintendent of Avondale to advise them of the precautions to be taken in connection with the use of the product. He informed them of the necessity for personnel applying the coating to wear air masks and to have the area ventilated to the extent that the air would be completely turned over every two minutes. He also advised them that if the recommended ventilation was provided the coating should dry out from nine to twelve hours after it was applied. He also provided them with written application instructions which contained the following:

“SAFETY PRECAUTIONS:
When working in tankage with any solvent-based product, there is a danger of asphyxiation. Normal precautions are advisable, i.e., use a blower to remove solvent vapor and personnel should have air masks or self-contained respirators. The solvent system of Safe-T-Kote has a toxicity level of 350 parts per million in air, which is moderately toxic.”

Apparently the instructions or recommendations given by Andres were followed when the coating was applied since there is no evidence that the painters encountered any difficulty. According to the paint foreman he understood that no personnel would enter the column until the coating was “cured,” that is, dried out so that no fumes were left in the column. He understood that Avondale’s safety department would test for the presence of fumes before any personnel were sent down to work in the column.

Nonetheless, Avondale’s handling of the situation is difficult to understand. John A. Chantry, Avondale’s safety officer, testified that following the painting, the safety department would follow up before other craft work would take place. (Tr. 127B) Charles Audler testified that he checked with the safety man before he went into the tank with Noel “and he said it was all right to go down there.” (Tr. 13B) In Chantry’s testimony there is the suggestion that he was primarily concerned with inflammable fumes which would prevent welding, and not the sort of non-inflammable fumes emitted by Safe-T-Kote. In any event, Avondale’s safety department apparently decided that the men could work in the column if they wore masks so they were unwilling to wait until the coating was “cured.”

The evidence shows that as long as the men involved in the rescue of Noel and Audler wore their masks properly they did not encounter any difficulty with the fumes. In their brief plaintiffs state that all the workers who testified, who were exposed to the fumes, were rendered either unconscious or dizzy even though all but one had a full face air mask and an outside source of air. This is inaccurate. John Patten, the first to discover decedent and Audler in trouble in the column had no difficulty until somebody outside turned off his air supply. (Tr. 24) Ernest Whitney had no mask on when he got into trouble (Tr. 54). Ardie Bowen got into trouble when he began to take off his air mask and put it on Noel and Audler to revive them. (Tr. 139-140) Anthony Macaluso had no trouble until Noel slipped from the hoist and fell on him. (Tr. 121B)

In dismissing plaintiff’s suit, the trial judge gave no reasons for judgment but it seems clear that he accepted the testimony of Andres as true and concluded that the accident was caused by the negligence of Avondale’s personnel in sending the men into this area without previously ascertaining that it was safe, or in supplying the men with defective air masks. He could also have found that the accident was caused by the negligence of Noel and his companion in the use of their air masks. For us to reverse the judgment of the trial court we must find that the court’s findings were clearly wrong, but we may not disturb findings of fact which are supported by the record, and we must accept the trial judge’s reasonable inferences drawn from those facts. We may not on appeal substitute our own findings of fact or our own inferences simply because we disagree with the trial judge. Canter v. Koehring, 283 So.2d 716 (1973). Thus, we reject the first general argument by plaintiffs that the trial judge committed manifest error, because the record, taken as a whole, does not support this position of plaintiffs.

Next, plaintiffs contend that they are entitled to recover on the theory that Safe-T-Kote was “unreasonably dangerous to normal use” as discussed in Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980). That case held that an escalator was unreasonably dangerous when a twelve year old passenger got his tennis shoe caught in the machine. In the instant case normal use of this industrial coating included adequate ventilation and the use of air masks in proximity to the material until it was dry and the fumes were gone. The product was not dangerous under such normal use. It caused damage in this case because it was not used properly. Similarly, the other cases cited by plaintiffs in support of this part of their argument are inappropriate. In Chappuis v. Sears, Roebuck & Co., 358 So.2d 926 (La.1978) plaintiff was normally using a hammer when it shattered and a fragment got into his eye and in Weber v. The Fidelity & Casualty Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971), the court found that the normal use of defendant’s cattle dip, i.e., in accordance with instructions and with certain precautions, resulted in the death of the cattle because the dip contained an excessive amount of arsenic.

Next, plaintiffs insist that they are entitled to recover because of the inadequacy of the warning contained on the containers of the material and cite Chapuis v. Sears, Roebuck & Co., supra, and Penn v. Inferno Manufacturing Corp., 199 So.2d 210 (La.App. 1st Cir. 1967) in support of their position. In Chapuis the court found that the warning by the hammer manufacturer was inadequate because it failed to disclose that a hammer once chipped should be returned to the manufacturer since a chipped hammer might shatter when put to normal use. In Penn the court found that the manufacturer failed to provide any information to the consumer as to the capacity of sight glass to withstand pressure. However, these cases have no application to the instant case.

First, plaintiffs beg the question that there was no warning. While one of their witnesses stated there were no warnings on the label, Andres testified that each container contained the warning “Use with adequate ventilation.” Adequate ventilation was fully defined in the discussions Andres had with Avondale officials and in the application instructions he supplied.

More importantly, the warning on the labels had no connection with Noel’s accident. After the coating was removed from the five gallon containers it came in the containers were discarded. Noel’s accident resulted from conditions in existence after the paint was applied and the warnings on the containers were irrelevant to the situation. What was relevant was Avondale’s failure to follow the recommendations Andres made before sending or allowing its personnel in the freshly coated column.

We conclude that the trial judge’s conclusion that Noel’s accident was caused not by the negligence of defendant but by that of his co-workers or his supervisory personnel or, perhaps, even of himself was not clearly wrong.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . Ray A. Comeaux testified that he applied the coating in the column on the day before the accident. At first they had difficulty with the fumes because they used airpowered spray guns but this problem was cured when they switched to airless guns. The application instructions recommended the use of airless guns, but did state that conventional equipment may be used. The only other trouble Comeaux had while painting was after a hole was blown in the air hose leading to his mask. (Tr. TA-SA)


author: GARRISON, Judge.

text:
    Emanuel ORDON, Individually and as Tutor of his Minor Child, Ricky Ordon v. Helene Hill NASH and United States Automobile Association.
    No. 12330.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied April 16, 1982.

      Clyde A. Ramirez, New Orleans, for plaintiff-appellant.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for defendants-appellants.
    Before SCHOTT, GARRISON and KLEES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered in accordance with a unanimous jury verdict finding the defendant not negligent and dismissing plaintiff’s case. From that judgment, which we affirm, plaintiffs appeal.

On August 26,1977, Mrs. Helen Nash and the minor child, Ricky Ordon, were involved in an auto-pedestrian accident. As a result of that accident, the minor suffered permanent brain damage and incurred over a hundred thousand dollars in medical bills.

It is admitted by all parties that the minor child, who was playing ball, ran into the street and into the path of the vehicle while attempting to retrieve the ball.

On appeal, plaintiffs allege that the jury erred in failing to find defendant negligent for:

1. Failing to stop her automobile prior to the accident when she had seen children playing in the area.
2. Failing to blow her horn as a warning.
3. Traveling at an excessive rate of speed.
4. Failing to keep her vehicle under control.

Defendant testified that as she approached the group of children, they disbursed and moved away from the street area. She further testified that she was traveling at a slow rate of speed, 15 to 20 miles per hour, immediately prior to the accident. That testimony was corroborated by Loretta Johnson, the only adult non-party witness. Loretta Johnson is the mother of Darrin “Sam” Johnson and Gordon Johnson, two boys who were involved in the ball game. Loretta Johnson further testified that the car was traveling at a low rate of speed, approximately 20 miles per hour and that she heard Mrs. Nash apply the brakes.

Counsel for plaintiffs cite the case of Buckley v. Exxon Corp., 390 So.2d 512 (La.1980). In Buckley the truck driver, attempting to park his truck, moved his vehicle dangerously close to a 7-year old bike rider, frightening the boy and causing him to lose his balance and fall beneath the truck. In discussing the truck driver’s negligence, the court further stated:

“Although Royer was driving slowly as his cab passed them, he was still moving his truck ever closer to the curb and the children. He failed to take any action designed to anticipate that the children might become frightened by the huge •truck approaching them in such close proximity and, due to their limited experience and judgment, suddenly place themselves in a position of peril. Clearly, Royer’s actions were unreasonable under the circumstances. He should have either slowed down sooner and come to a complete stop in the parking lane before reaching the children or not made the stop while the children were located where they were. “We further find that Royer’s negligence was the sole proximate cause of the accident. The evidence is clear that both Joel and Scherrell became scared when the huge truck moved toward them. Joel’s fright of the approaching truck caused him to lose control of his bike and skid off the shoulder of the road into the parking lane under the wheels of the truck.
“Because Royer’s negligence caused the accident, he is liable to plaintiffs for damages resulting from the accident.” At 514-515. (Emphasis supplied)

We find that Buckley is not controlling in the instant appeal. We do not interpret Buckley as meaning that a vehicle must stop whenever there are children on a parallel sidewalk or adjoining lawn. Likewise, we do not find that Mrs. Nash should have sounded her horn in light of the fact that the children had already left the area of the street. Lastly, we agree with the finding of the jury that Mrs. Nash maintained control of her vehicle at all times.

For the reasons discussed the judgment of the district court is affirmed.

AFFIRMED.


text:
    HISTORIC FAUBOURG ST. MARY CORPORATION OF NEW ORLEANS v. Mrs. Beatrice Hoffman WIMPEY and Alvin Wimpey, d/b/a Bea’s Rooming House.
    No. 12807.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Rehearing Denied April 16, 1982.
    Philip P. Spencer, New Orleans, for plaintiff-appellee.
    P. Fred Siegel, New Orleans, for defendants-appellants.
    Before GARRISON, AUGUSTINE and WARD, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court cancelling defendants’ lease, ordering their eviction from the premises, ordering defendants to pay rent from January 1,1981 until possession is given to plaintiff, and awarding attorney’s fees to plaintiff. From that judgment, defendants appeal.

On or about April 17, 1980 plaintiff purchased the property “535 — 537 Julia Street” subject to a lease executed on April 27,1979 between the prior owners and defendants. The lease had a term of three years. On April 24, 1980 representatives of the Orleans Parish Sanitation Services (hereinafter OPSS) inspected the premises. Notice was mailed on April 29, 1980 and the premises were reinspected on June 3, 1980. On June 10, 1980 a representative of the OPSS executed affidavits in Municipal Court and both Historic Faubourg and the defendants were cited in violation of 828 MCS §§ 30-30, 30-28 and 30-35. After two continuances the trial judge found that health violations had occurred and a fine was levied but suspended as against Historic Faubourg.

On September 9, 1980 the Fire Department cited plaintiff for 21 violations of the Fire Code. On September 16,1980 plaintiff notified defendants that the New Orleans Fire Department had cited the premises and that defendants, under the terms of the lease, were responsible for correction of the violations within 30 days. On November 17, 1980 plaintiff notified the lessees that Historic Faubourg would seek judicial termination of the lease on a number of grounds, including failure to maintain the premises. The November 17 letter further stated that lessor would refuse to accept any further rent from the lessees. Suit was filed on December 23, 1980, seeking cancellation of the lease based upon, among other allegations, failure to maintain the premises.

On January 1, 1980 lessees tendered to lessor a check for the January rent. Lessor deposited the check to its Whitney Bank Account on January 5,1980. On January 6, 1980 lessor issued its check to lessees for the amount of the January 1 check.

Trial was held on January 16, 1981 and most of the evidence presented went to the issue of the condition of the premises. No testimony relative to the rent check was presented at trial, although the check was admitted into evidence as Exhibit G. On January 19 the trial court rendered judgment in favor of the lessor. On January 19 the trial court also granted a suspensive appeal from the judgment it had rendered that day.

On January 20, 1981 lessees deposited the Historic Faubourg check to their account. On February 2 the check was returned because the lessor had stopped payment on the check. On February 6 lessees filed a petition to annul the judgment on the basis of the check incident. An answer was filed on February 20 and the trial court dismissed the suit to annul on that same day.

The judgment on appeal is the judgment of January 19 which was based on plaintiff’s suit for termination of the lease based on health and sanitary conditions, failure to maintain the premises, and alleged illegal activities. At no time did plaintiff seek eviction based on a failure to pay the rent. On appeal, defendant-appellants seek to argue the issue of the check. This issue is not properly before the court. The major operative events of the check issue all occurred after the appeal was granted; the check issue was not addressed by the trial judge because it had not occurred, and there is no real evidence of this matter contained in the record. The sus-pensive appeal granted was from the January 19 judgment. Although defendants could have appealed the later judgment, they failed to do so. Accordingly, the check issue is not before this court and will not be addressed.

The lease contains several provisions relative to the instant appeal:

“Lessee is obligated not to use the premises for any purpose that is unlawful or that tends to injure or depreciate the property.
“The within leased premises and appurtenances, including the locks, keys, plumbing, and glass, elevator, and heating system, if any, and all other fixtures, are accepted by the Lessee in their present condition, except for such repairs and improvements as are written into this lease, and except such as may be needed to the roof or rendered necessary by fire or other casualty. The Lessee agrees to keep them in the same order as received, during the term of this lease; to pay all bills for water, including water sprinkler service charge, light, gas and other service, and to comply at the Lessee’s expense with all ordinances and laws, now existing, or to be enacted, and at the termination or cancellation of this lease to return the premises broom clean and free from trash, and in like good order as received by actual delivery of the keys to Lessor or Agent, the usual decay, wear and tear excepted.
******
“Lessee assumes the maintenance of the plumbing, including fixtures, outlets and drains, and the protection and repair of said plumbing, etc., even when injured by freeze.
***** Is
“Should the premises be vacated or abandoned by Lessee because of ejectment for breach hereof, or otherwise, or should the Lessee begin to remove personal property or goods to the prejudice of the Lessor’s lien, then the rent for the unexpired term, with Attorney’s fees, shall at once become due and exigible, and Lessor, at his option, has the right to cancel the lease, or re-enter and let said premises for such price and on such terms as may be immediately obtainable and apply the net amount realized to the payment of the rent.
******
“Lessee shall maintain inside and outside of premises in clean condition, up to normal standards required by City Health Department.”

It is apparent from both the Municipal Court conviction on Health violations and the 21 reported violations of the Fire Code that lessees not only have failed to comply with the normal standards of the City Health Department, but also have failed to maintain the property to an extent so as to cause injury to and depreciation of the property.

At trial the lessees produced several estimates for repairs to correct the violations, but no documentary evidence that the repairs had been made. Although Mr. Wim-pey testified that the repairs had been made, Paul Wright, a detective who spent the Sunday immediately preceding trial on the premises, testified to the following conditions:

“Q. And did you have occasion to count the number of beds in there?
“A. Yes, sir.
“Q. How many beds were there?
“A. Twenty-two, sir, in two bunk tier units.
“Q. And the beds, would you describe what they looked like, what was the first bunk bed, how far off the ground was the first one, the lower bunk bed?
“A. The front bed, I would say approximately six inches from the ground.
“Q. And the second level was how high up?
“A. Approximately four and a half to five feet, sir.
“Q. How many different people were in that room?
“A. When we arrived I was able to make out, I counted seven people that appeared to be sleeping in the area. Now, there was movement to and fro of people arriving, people going to the bathroom while we were there. And when we left at around midnight, there were approximately twenty people, certainly between eighteen and twenty.
“Q. In that one room?
“A. Yes, sir.
“Q. Would you describe the lighting in that room?
“A. Well, the lights were out the entire time we were there to begin with. So, there were provisions for two fluorescent lights, there were lighting strips shorter than these you have here. But it was the same tubing kind. In fact, I tried to turn one on but—
“Q. What happened when you went to turn the light on?
“A. Well, there was a pull cord arrangement to turn it on but when I pulled on it, in fact, the whole thing sank towards me, it gave a start. One didn’t light at all and the other one went into a sputtering kind of flashing, but didn’t fully ignite or light up. At this time, somebody who appeared to be sleeping told me quite politely and crudely not to turn the light on, but to turn it out.
“Q. He objected to your turning the lights on?
“A. Definitely. So, I pulled the cord again but it was very insecure, I didn’t want to try it again. I did not try the other unit at all.” (Tr. pp. 22-24)
* * * * * *
“Q. Would you describe to the Court the conditions of the toilet facilities?
“A. It is a toilet bowl with an accompanying sink tank. It is in a room for starters, it was completely surrounded by what I can only describe as a small lake which smelled to me to be of urine. In fact, I burned the pair of canvass shoes I was wearing.
“Q. You mean subsequently?
“A. Yes, subsequently. It smelled of urine, I had to wade through this to actually reach the bowl and the seat was in a down position which it had to be because it was broken in three places at least. And there was assorted feces lying on top of the seat. “There was also no light in there, there was a light bulb which traced back to the light switch, but it was not working.
“Q. You had no light at all?
“A. That is correct.
“Q. Was that the only toilet facility for that dormitory?
“A. Yes, sir, I covered all of the ground floor area.
“Q. There was only one door that you could go in or out of?
“A. Yes.
“Q. And twenty-two people were in there during the time you were in there?
“A. Yes, sir.” (Tr. pp. 24-26)

Lessor’s allegations that lessees allowed sales of controlled substances and prostitution on the premises remain unproved.

On appeal, the scope of appellate review is (1) whether the trial judge was manifestly erroneous in his factual determinations and (2) whether the trial judge committed an error of law.

We find that the trial judge committed no errors of fact or law. Under the terms of the lease, lessor had the right to termination for Health Department violations and the lessees, against whom a conviction has been taken, have failed to prove that any remedial steps or repairs have been completed. We note that the lease provides for attorney’s fees as awarded and that payment until the premises are vacated is proper.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.