text:
    Consuella M. JACOBS v. Jeron GRAYSON.
    No. 15129.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Steve H. Benton, Baton Rouge, for appel-lee-plaintiff.
    Otha Curtis Nelson, Sr., Baton Rouge, for appellant-defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Defendant, Jeron Grayson, has appealed the judgment of the City Court of Baton Rouge which ordered him to pay plaintiff, Consuella Jacobs, $815.00. A failure of recording equipment has resulted in an incomplete trial transcript. Defendant-appellant seeks reversal of the judgment below or, in the alternative, a remand for new trial. In light of our conclusion that this case must be remanded, we do not reach the merits of plaintiffs appeal.

The transcript of testimony was prepared by the minute clerk of the City Court of Baton Rouge. The transcript index indicates that four witnesses testified in this matter in the following order: Consuella Jacobs, Christie Brown, Rosalie Rogers and Jeron Grayson. The transcript begins with Jacobs’ testimony. During the course of her testimony, the following notation appears:

“TRANSCRIBER’S NOTE: At this time the tape recording ended and apparently a new one was begun; however, the following tape recording was completely blank and this testimony resumed on the next following tape recording. A portion of approximately forty-five minutes of all testimony, colloquy, oral arguments (if any), exhibits introduced, et cetera, are completely missing at this point due to this fact. The testimony resumed with Mr. Jeron Gerald Grayson, the Defendant, on the stand apparently being called by the Plaintiff and was then taken on direct by his own defense counsel, Mr. Nelson.”

After this notation, the transcript resumes with the testimony of Grayson, which was already in progress. The net effect of this apparent mechanical failure is that the transcript omits portions of the testimony of Jacobs and Grayson and entirely omits that of Brown and Rogers.

LSA-C.C.P. art. 2131 provides that if the testimony of a witness has not been taken down in writing, the appellant has a duty to provide a narrative of facts joined in by both parties. In the absence of agreement by the parties, the trial judge is given the duty of making a written narrative of the facts. However, LSA-C.C.P. art. 2131 is not applicable where the testimony of the witnesses has been recorded or taken down during the trial, but due to mechanical failures or some other cause beyond the control of the parties, all or part of the testimony cannot be transcribed. Willis v. Gulf Bldg. Services of Baton Rouge, 372 So.2d 635 (La.App. 1st Cir.1979); Kay v. Home Indemnity Company, 301 So.2d 705 (La.App. 3rd Cir.1974). In such instances, the case should be remanded for the purpose of taking the testimony of those witnesses who testified at trial. Willis v. Gulf Bldg. Services of Baton Rouge, supra; Kay v. Home Indemnity Company, supra. See also LSA-C.C.P. arts. 2132 and 2161.

For the reasons assigned, the case is remanded to the trial court for the limited purpose of retaking the testimony of the witnesses who testified at trial. Costs to await a final determination.

APPEAL REMANDED.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    Homer L. McMULLAN, et al. v. Andrew W. TOLBERT, et al.
    No. 15130.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Charles W. Rea, Baton Rouge, for plaintiff-appellant Lloyd’s Ins. Co.
    Roy Maughan, Baton Rouge, for plaintiff-appellee Homer L. McMullan.
    Prank J. Gremillion, Baton Rouge, for defendants-appellees City of Baton Rouge, City of Baker, Andrew W. Tolbert and Andrew Jackson.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

This suit for damages arose out of a vehicular collision between an unloaded eighteen-wheel tractor trailer dump truck owned by Homer L. McMullan and being operated by William Kennard; and a 1974 Ford dump truck owned by the City of Baker, Parish of East Baton Rouge (City-Parish), Department of Public Works, and being operated by its employee Andrew W. Tolbert. The collision occurred on the Kidd Creek Bridge of the Pride-Baywood Road on June 11,1980, at approximately 8:15 a.m. The weather was clear. Kennard was proceeding in a general southerly direction on the Pride-Baywood Road; Tolbert had positioned his dump, truck on the Kidd Creek Bridge blocking all of the northbound lane and at least half of the southbound lane. He was dumping fill material from the bridge into the creek below as an erosion preventive measure. A short distance before the bridge, the road curves rather sharply to the north, and Kennard was rounding this curve just prior to the accident.

Homer L. McMullan and his insurer, Insured Lloyd’s Insurance Company, filed suit against the City-Parish and Andrew Tolbert for the damages to his truck. City-Parish filed a reconventional demand seeking to recover for the damages to its truck and for medical expenses and workmen’s compensation paid to Tolbert.

The trial court, after visiting the scene and hearing the evidence, handed down oral reasons dismissing both the main and recon-ventional demands. The pertinent portion of his oral reasons is quoted as follows:

“All right. In this matter let the record show that the Court, as stated previously, has gone to the scene of the accident. The testimony from the driver of plaintiff’s truck and other remarks of counsel indicate that this curve was a blind curve. Well, the Court’s appreciation of the curve is that it is a curvy curve. It is not what you would call a complete blind curve. You don’t all of a sudden come to the bridge. You can see a little ways down the road. The evidence further indicates by Mr. Kennard’s testimony that he was going somewhere between forty-five and fifty, and he was driving a large truck and trailer. Stipulated to as P-1 is the accident report in which the officer testified that, in which the officer wrote that Mr. Kennard advised that he was traveling fifty miles per hour at the time. Again, I say, the speed limit was forty-five. This Court is of the opinion that this speed was too great under the circumstances. As he said, he didn’t get a ticket. If he drives that way all the time he apparently should get one every day. The Court feels certain that this contributed to the accident. The suit is dismissed at plaintiff’s cost.”

And, further:

“As part of the reasons, I meant to say in the reasons that I find that the driver of the plaintiff’s vehicle was contributorily negligent in addition to the defense being negligent, and therefore all claims are dismissed. The main demand and the reconventional demand are dismissed at. plaintiff on the original demand’s cost.”

City-Parish did not contest its negligence because its employees had failed to post a flagman prior to positioning the dump truck across the traffic lanes. The appeala-ble issue is whether or not the driver of the gravel truck was also guilty of negligence which would be imputable to his employer and preclude recovery. The trial judge found that Kennard was going too fast under the circumstances and that his speed contributed to the accident.

The record clearly supports the trial court’s finding. In addition to Ken-nard’s trial testimony that he was going 45 to 50 miles per hour, there was other testimony which corroborated the finding of excessive speed: (1) Kennard’s admission to the investigating officer that he was going 50 miles per hour; (2) the officer’s finding that the posted speed limit was 45 miles per hour; (3) the testimony of Alton Schneider who lived nearby and looked out his window when he heard screeching brakes, but could not see the truck for all the smoke coming from its brakes and tires; (4) the fact that the truck was empty and more difficult to bring to a complete stop than had it been loaded; and (5) the policeman’s notation that the truck left 240 feet of skid marks prior to impact. All these factors were obviously considered by the trial court in making its decision that Kennard was guilty of negligence. Additionally, the trial judge observed that, notwithstanding Ken-nard’s testimony, the curve was not' blind but afforded a view down the road as one approached the bridge.

These facts certainly could justify a finding of excessive speed and failure to maintain a proper lookout and control under the circumstances, which could have played a substantial factor in the accident and were sufficient to deny recovery by plaintiff. A reviewing court may not substitute its will for that of the trier of fact unless the record shows that the trial court’s findings were clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

AFFIRMED.


author: EDWARDS, Judge.

text:
    The STATE of Louisiana v. Avery SHARBINO.
    No. 82 CA 0002.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Michael C. Barron, Dept, of Public Safety, Baton Rouge, for plaintiff-appellee State of La. Through the Dept, of Public Safety.
    Louis M. Phillips, Baton Rouge, for defendant-appellant Avery Sharbino.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

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

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

APPEAL DISMISSED.


text:
    Mrs. Patti R. ALLEN, etc. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 82 CA 0004.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    David W. Robinson, Paul H. Due, Baton Rouge, for plaintiffs-appellants Mrs. Patti R. Allen, individually and natural tutrix of the estate of her minor son, Eric Michael Allen.
    Horace C. Lane, Baton Rouge, for defendants-appellees Walter Pace, Jr. and State Farm Mut. Auto. Ins. Co.

      Samuel R. Cicero, Baton Rouge, for defendants-appellees City of Baton Rouge and Parish of East Baton Rouge.
    Lawrence Durant, Owen M. Goudelocke, Baton Rouge, for defendant-appellee State of La. through the Dept, of Transp. and Development.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

On October 9, 1978, Michael Allen (decedent) was hit by an automobile and fatally injured while crossing Scenic Highway in Baton Rouge, Louisiana. Patti R. Allen (plaintiff), his surviving widow, brought suit for herself and her minor child to recover damages for his death.

The original defendants were: Walter A. Pace, Jr. (Pace), the driver of the automobile; his insurer, State Farm Mutual Automobile Insurance Company; Exxon Corporation; City of Baton Rouge and Parish of East Baton Rouge (City-Parish); and the State of Louisiana, Department of Transportation and Development (DOTD). Before trial, plaintiff settled with Exxon. During trial, plaintiff settled with Pace and his insurer. The only remaining defendants are City-Parish and DOTD. The trial judge, in his oral reasons for judgment, stated:

“The Court also finds that plaintiff has failed to prove that a defect existed in this highway in its design, in its construction, or in its maintenance. Likewise, there’s no proof that defendants, or either of them, 'have failed to make any of the required studies or inspections. The highway was not ultrahazardous and the defendants did not create, maintain, or allow to exist an unreasonable risk of injury. In the opinion of the Court, the highway was in safe condition.
In regard to the theory of negligence, the Court finds that negligence has not been proven.”

Plaintiff perfected this appeal. The following facts are not in dispute: On October 9, 1978, at approximately 6:30 a.m., decedent, an employee of Exxon Chemical Company, was casually crossing Scenic Highway, a four-lane, north-south traffic artery. He was en route from Exxon’s employee parking lot on the east side of Scenic to a turnstile gate entrance to the Exxon plant on the west side of Scenic, to begin his day’s work. He was carrying a notebook containing homework papers; he was an apprentice electrician enrolled in a two-year Exxon apprentice program. As he crossed the highway, he dropped his notebook or some papers from it. After reaching the center median he turned around and returned to approximately the middle of the two northbound lanes and stooped down in the highway with his back to oncoming traffic to retrieve his papers. While in a stooped position, he was struck and killed by an automobile driven by Pace. Pace had been traveling in the eastern-most lane of the northbound traffic on Scenic Highway, “looking ahead and to the side” for a parking space.

Prior to this accident, DOTD had entered into a contract with City-Parish which required City-Parish to perform traffic engineering work for DOTD. At Exxon’s request, the City-Parish traffic engineering staff made a study of the crossing site and concluded that:

“... the only type of device that would work in this situation would be some type of pedestrian overpass that would terminate within the Exxon fence line.”

Robert Canfield, Transportation Coordinator for City-Parish, testified that a traffic control device such as a push-button light controlled by the pedestrian would not reduce accidents at this crossing. Canfield also felt that the volume of pedestrian traffic at this crossing did not justify a signal. All of the City-Parish recommendations required certain actions by Exxon.

Plaintiff says that the trial court was clearly erroneous in (1) failing to find that DOTD and City-Parish were liable under either a theory of strict liability or negligence due to insufficient warning and lighting on Scenic Highway, and (2) finding the pedestrian guilty of acts constituting victim fault or contributory negligence.

DOTD has the duty to maintain state highways in such condition that they will be safe for the ordinary motorist using reasonable care under the circumstances. LSA-R.S. 32:2; Von Cannon v. State, Department of Highways, 306 So.2d 437 (La. App.3d Cir.1975), writ denied, 309 So.2d 681, 682 (La.1975). The duty of maintaining the highway in a safe condition includes the duty of providing proper safeguards or giving adequate warnings of dangerous conditions in the highway and is applicable to pedestrians as well as to travelers in vehicles. Rosier v. State, 50 So.2d 31 (La.App.2d Cir.1951).

Warnings should be sufficient to alert the ordinary, reasonable motorist. Von Cannon, supra. However, warnings need not be maintained at places on the highway which do not present extraordinary conditions or unusual hazards. Rosier, supra. In addition, the municipality has an obligation to maintain and operate the lighting system after such system has been completed and accepted. LSA-R.S. 33:3659.

DOTD is not responsible for every accident which may occur on the state highways, nor is it a guarantor of the safety of travelers thereon, or an insurer against all injury which may result from obstructions or defects in such highways. Usry v. Louisiana Dept. of Highways, 402 So.2d 240 (La.App.4th Cir.1981), writ denied, 404 So.2d 1259 (La.1981).

A causal relationship must exist between the alleged wrongful conduct and the resulting harm before liability can attach. Mixon v. Allstate Insurance Company, 300 So.2d 232 (La.App.2d Cir.1974), writ denied, 303 So.2d 179 (La.1974). In order for negligent conduct to be a cause-in-fact of harm to another, it must be a substantial factor in bringing about that harm. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). After a careful review of the entire record, we conclude that the accident was not causally related to any act or omission on the part of City-Parish or DOTD, sounding in strict liability (C.C. Art. 2317) or in negligence (C.C.art. 2315).

First, the alleged lack of lighting did not play a substantial part in bringing about the accident. Officer Glynn Verrett who investigated the accident stated that most of the street lights on Scenic Highway were working. He said, however, that he had difficulty seeing as he came upon the accident site. He also testified that one of the street lights was out, but he could not remember which light was not functioning. Additionally, Eric Plauche, an Exxon employee, witnessed the accident. He was 50 to 60 feet from decedent when the accident occurred, yet was able to see the entire scenario as it occurred. This factual dispute was resolved against plaintiff. We cannot say the trial court was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Second, no evidence was offered to refute Canfield’s testimony that push-button lights would not have prevented this accident. His reasoning was that:

“... (i)n this particular case, the man went half way across the street, dropped some material, returned to pick that material up. Now, I don’t know how long it would have taken him to go there and do that, that signal could’ve returned green for Scenic Highway at that time.”

Although plaintiff urges that additional warning such as flashers or a reflectorized crosswalk should have been installed, nothing in this record warrants a conclusion that this accident would not have occurred had same been present.

We agree with the trial court that plaintiff failed to prove that a defect existed in this highway. The lack of lighting or warning played no substantial part in bringing about the accident. This accident appears to have been caused solely by the acts and omissions of decedent and Pace. Decedent had been working at Exxon since 1976 and should have been familiar with the crossing and with the traffic. Nevertheless, he stooped down with his back to oncoming traffic to retrieve his papers. Furthermore, Pace was inattentive and failed to maintain a proper lookout. Officer Verrett testified that the Pace vehicle did not leave skid marks until after it struck decedent. In deposition, Pace stated that before the accident occurred, he was looking for a place to park.

Based on the aforesaid facts, we agree that this tragic accident was more likely than not caused by the negligence and inattention of Allen and Pace. Both were familiar with the area and with the fact that Scenic Highway was a busy highway and that Exxon workers crossed the highway in front of the plant. See Wall v. American Emp. Ins. Co., 377 So.2d 369 (La.App.2d Cir.1979), affirmed, 386 So.2d 79 (La.1980). However, neither exercised the care required under the circumstances. Our fundamental conclusion is that even if inadequate warning or lighting existed (which we have not found), such inadequacy was not a substantial cause of the accident under C.C. art. 2315 or C.C. art. 2317.

The decision of the trial court is affirmed at plaintiff’s costs.

AFFIRMED.


author: LANIER, Judge.

text:
    Darlene BABIN v. Elton CORLEY and Reggie Bond d/b/a E & R Automobile Repairs.
    No. 82 CA 0005.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Darlene A. Babin, in pro. per.
    Douglas Cyrex, Gonzales, for defendants & appellees.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This appeal was lodged on January 4, 1982. On June 22,1982, the plaintiff-appellant, Darlene Babin, in proper person filed a brief with this court. The defendant-appel-lee, Elton Corley, filed a motion to strike the brief for failure to comply with Rule 9 (now Rule 2-12) of the Uniform Rules of the Courts of Appeal. The motion to strike was granted by this court on June 28, 1982. This appeal was fixed for oral argument on August 18, 1982 and the appellant acting in proper person appeared that date and advised the clerk of this court that she did not wish to abandon her appeal and requested that she be given an opportunity to refile her brief if the court would so allow. The appellant’s request was granted by this court and she was directed to file her brief in proper form not later than 4:30 P.M. on Wednesday, August 25, 1982. Appellant was further advised that if she did not comply with this order, her appeal would be dismissed. The appellant has not filed her brief within the time specified by this court, nor has she filed a motion for an extension or for a continuance.

On authority of Rule 2-8.6, this court, ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice at appellant’s costs.

APPEAL DISMISSED.


author: PONDER, Judge.

text:
    Donald HUMBLE v. C. Paul PHELPS, Secretary of Corrections, State of Louisiana.
    No. 82 CA 0015.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Donald Humble, in pro per.
    P. David Guarisco, III, La. Dept, of Justice, Baton Rouge, for defendant-appellee C. Paul Phelps, Secretary of Corrections, State of La.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

This appeal was fixed on the September 23, 1982 docket and all attorneys of record were notified as well as the plaintiff, Donald Humble, in proper person. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

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

APPEAL DISMISSED.


text:
    Paul J. LANDRY v. BATON ROUGE LUMBER COMPANY and Al Blue.
    No. 82 CA 0050.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Thomas E. Balhoff and John W. Perry, Jr., Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for plaintiff.
    Ben W. Lightfoot, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for defendant-appellant Baton Rouge Lumber Co.
    Michael J. Uter, Perrault & Uter, Baton Rouge, for defendant A1 Blue.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

This appeal was fixed on the September 24, 1982 docket and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

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

APPEAL DISMISSED.


author: COVINGTON, Judge.

text:
    Thomas E. HYSMITH v. C.T. COLESON.
    No. 82 CA 0056.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Jerome Halford, New Orleans, for plaintiff, appellant.
    Bernard Smith, Covington, for defendant, appellee.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This is an appeal by Thomas E. Hysmith, plaintiff, from judgment of the district court, in favor of Charles T. Coleson, defendant. Plaintiff seeks judgment declaring an act of sale (credit deed) to defendant by Marion Coleson Perkins to be a simulation or a donation in disguise, or to be lesionary. Judgment was rendered by the trial court rejecting plaintiff’s demands. We affirm.

Plaintiff brought suit against defendant attacking an act purporting to be a credit deed from Marion Coleson Perkins, plaintiff’s paternal grandmother, to C.T. Cole-son, nephew of Mrs. Perkins, dated April 14, 1977, passed before Mike J. Balen, notary public, of record in the official records of St. Tammany Parish, Louisiana, with a recited consideration of $70,000.00, of which $7,000.00 was paid in cash and the balance of $63,000.00 represented by a promissory note payable in 97 installments of $650.00 each, beginning May 15,1977, and the other installments due the 15th day of each succeeding month. The property conveyed by the act is a 10-acre tract of land situated in Township 9 South, Range 12 East, St. Tammany Parish, Louisiana, and which is more fully described in the decretal portion of this opinion. In the act, the vendee agreed to allow the vendor “to remain and occupy the said premises described herein until her death.”

Plaintiff attacked the act on the ground that the transaction was a simulation in that the recited consideration was never paid by defendant and that the vendor continued to live on the property and treat it as her own. Alternatively, plaintiff alleged that the transaction was a disguised donation, or was lesionary.

Simulation:

A simulation is a feigned or pretended sale clothed with the formalities of a valid sale. In Owen v. Owen, 336 So.2d 782, 786 (La.1976), the Supreme Court stated:

“... In our law, a simulation is a transfer of property which is not what it seems. Simulations are of two types: pure simulations and disguised transfers. In a pure simulation, sometimes called a non-transfer, the parties only .pretend to transfer the property from one to the
other, but in fact both transferor and transferee intend that the transferor retain ownership of the property. When this type of simulation is successfully attacked, the true intent of the parties is revealed, which was that no transfer had in fact taken place. In a contest between a vendor and vendee in this situation the true intent of the parties is effectuated and the courts hold that no transfer took place because the simulated sale is an absolute nullity. Successions of Webre, 247 La. 461, 172 So.2d 285 (1965); Schalaida v. Gonzales, 174 La. 907, 142 So. 123 (1932); Milano v. Milano, 243 So.2d 876 (La.App. 1st Cir.1971). The other type of simulation is a disguised transfer which seems on its face to be a valid sale, but which is intended by the parties to be a gift rather than a sale. When this sort of simulation is attacked successfully, as it has been here under Article 2444, the true intent of the parties is likewise effectuated by the law. A valid transfer has taken place, but its form is a donation rather than a sale and the Code articles on donations apply to the transfer. Stevens v. Stevens, 227 La. 761, 80 So.2d 399 (1955); Carter v. Bolden, 13 La.App. 48, 127 So. Ill (La.App. 2nd Cir.1930); 35 La.L.Rev. 192 (1974); 25 La.L.Rev. 313 (1965).”

A presumption of simulation arises when the vendor reserves a right of habitation and remains in possession of the property. L.S.A.-C.C. art. 2480; Camus v. Camus, 91 So.2d 120 (La.App.Orl.1956), cert. den. Feb. 27, 1957. In the instant case, the act and the other evidence disclose that Mrs. Perkins reserved a right of habitation and remained on the premises. Thus, the burden of proving the validity of the transaction shifted to Coleson.

In ascertaining whether a sale is simulated, the courts must determine whether the parties acted in good faith, whether there was an actual intention to transfer title, and whether any consideration was given for the transfer. Phillips v. Nereaux, 357 So.2d 813 (La.App. 1 Cir.1978), and on denial of rehearing, 361 So.2d 228 (La.App. 1 Cir.1978).

Nevertheless, a transaction will not be set aside as a simulation if any consideration, no matter how small, supports the transaction, because the reality of the transfer is thus established. Russell v. Culpepper, 344 So.2d 1372 (La.1977); Morgan v. Gates, 396 So.2d 1386 (La.App. 2 Cir. 1981). The record establishes that Coleson paid approximately $21,000.00 to Mrs. Perkins from the time of the sale until her death. The trial judge, in his reasons for judgment, stated:

The record establishes that Mrs. Perkins lived on the property transferred to defendant until her death. Under Louisiana Civil Code, Article 2480, where the thing sold remains in the possession of the seller, the sale is presumed to be simulated and the parties must produce proof that they are acting in good faith and establish the reality of the sale. “The record further establishes that defendant paid Mrs. Perkins the $7,000 shown as having been paid in cash in the act of sale, giving her $2,000 at the act of sale along with a $500 cheek and a $4,500 check shortly thereafter. In addition, plaintiff paid $13,650 in monthly payments on the promissory note. This Court finds that this sale was clearly not a pure simulation.

In the case at bar, Coleson executed a promissory note for the balance of the purchase price. A sale where consideration is given by the execution of a valid promissory note is sufficient to meet the requirement for payment of consideration. Phillips v. Nereaux, supra. The record establishes that the note had not been paid in full prior to Mrs. Perkins’ death; however, the note was still valid and was actual consideration for the transaction. The claim of a simulation is without merit.

Disguised Donation:

Second, plaintiff contends that the transfer, even though not a simulation, is a donation in disguise. In its consideration of this question, the court below found:

The record also establishes that this transfer was not a disguised donation. It is true that Mrs. Perkins continued to live on subject property after the sale up until the time of her death. However, unob-jected testimony established that this sale was made to defendant by Mrs. Perkins because she was short of funds. Mrs. Perkins orally agreed with defendant that in return for her living on subject property for the rest of her life, she would, at her death, declare the promissory note given in the act of sale as fully paid and cancel the vendor’s lien. The vendor, Mrs. Perkins, did not intend to donate subject property to defendant. The fact that Sharon Hysmith Bonan-singer, once the representative in the Succession of Marion Perkins, remained living on the property after the alleged sale and thereafter removed a large part of the contents from the house situated on the property involved in the sale without action on behalf of defendant does not change this Court’s holding since the record clearly establishes that no simulation or donation in disguise occurred. In addition, the fact that the Succession attorney cancelled the vendor’s lien by presenting the promissory note secured by the lien to the Clerk’s Office for cancellation does not cast any aspersions on the validity of this sale. Actually, testimony establishes that the attorney, in cancelling the vendor’s lien and privilege, was acting as per the apparent instruction of Mrs. Perkins.

We agree with this finding of the trial court. The parties never contemplated that the transaction in question was to be a gratuitous one. The parties agreed upon a valid and valuable consideration in exchange for the property being transferred from Mrs. Perkins to Coleson. We note that the trial court’s findings are entitled to great weight and will not be disturbed on appeal in the absence of manifest error. Bell v. Bell, 339 So.2d 1333 (La.App. 3 Cir.1976). Since we find the sale to be a valid sale, it logically follows that it is not a donation in disguise. Phillips v. Nereaux, supra. There is no evidence that the price was below one-fourth of the real value of the property at the time of the sale. LSA-C.C. art. 2444, Roy v. Roy, 382 So.2d 253 (La.App. 3 Cir.1980).

Lesion:

Plaintiff has argued in the alternative that the sale is lesionary. In an action for recission for lesion, the one seeking to set aside the transaction must prove by clear and convincing evidence that the price given was less than one-half of the value of the property sold. LSA-C.C. art. 1870; Cheramie v. St. Pierre, 382 So.2d 1003 (La. App. 1 Cir.1980); Dunker v. Finance Funds Group, Inc., 333 So.2d 331 (La.App. 4 Cir.1976). As found by the trial court, there is no evidence in the record to support this contention.

For the assigned reasons, we agree with the judgment of the court below. However, in accordance with LSA-C.C.P. art. 2089, the judgment of the district court is recast to include, with particularity, the description of the property affected. It is ordered, adjudged, and decreed that C.T. Coleson is the true and lawful owner of the following described property:

All that certain tract or parcel of land, together with all buildings and improvements thereon and all rights, ways and privileges thereunto belonging, situated in St. Tammany Parish, Louisiana and more fully described as follows, to-wit: From the corner common to Sections 1, 2 and 37, Township 9, South Range 12 East run South 45 deg. 20 min. East 41.51 chains to a post; thence North 44 deg. 40 min. East 0.45V2 chains to the point of beginning. An iron post set at the intersection of the West right-of-way of Bar-ringer Road and the North right-of-way of a gravel road bearing North 45 deg. 20 min. West; thence North 44 deg. 40 min. East 10.00 chains along the West right-of-way at Barringer Road to an iron post; thence North 45 deg. 20 min. West 10.00 chains to an iron post; thence South 44 deg. 40 min. West 10.00 chains to an iron post set at the North right-of-way of above mentioned gravel road; then South 45 deg. 20 min. East 10.00 chains to the point of beginning containing 10.00 acres. All as acquired by vendor from Oscar G. Price by act dated May 16, 1947 before Lindsay McDougall, Notary Public and recorded in COB 178, folio 149 in the official records of St. Tammany Parish, Louisiana.

We cast the appellant for costs of this appeal.

AFFIRMED.


text:
    Helen B. BREWER, et al. v. Frank DAVIS, et al. ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al. v. Frank DAVIS, et al.
    Nos. 82 CA 0061, 82 CA 0062.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Dennis Paul Juge, New Orleans, for St. Paul Fire & Marine Ins. Co. and Martine Corp.
    Dale E. Branch, Bogalusa, for Frank Davis and State Farm Mut. Auto. Ins. Co.
    P. David Carollo, Slidell, for Helen B. Brewer wife of/and Drew Brewer.
    Peter Duffy, Metairie, for Frank Davis.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This is an appeal by plaintiffs, Helen B. Brewer, wife of/and Drew Brewer, Jr., and St. Paul Fire & Marine Insurance Company and Martine Corporation, from a judgment of the district court in favor of defendant, State Farm Mutual Automobile Insurance Company, dismissing plaintiffs’ suit against defendant at their costs. We affirm.

This litigation commenced as a suit for damages brought by Helen B. Brewer and her husband, Drew Brewer, Jr., against Frank Davis and State Farm Insurance Company (State Farm Mutual Automobile Insurance Company). Subsequently, Mrs. Brewer’s employer’s workers’ compensation insurer, St. Paul Fire & Marine Insurance Company, and her employer, Martine Corporation, a/k/a Kentucky Fried Chicken, sued to recover the compensation benefits paid to Mrs. Brewer.

This litigation arises out of the following set of facts. On Saturday, July 28, 1979, Frank Davis, who was accompanied by his wife and child, went to a Kentucky Fried Chicken outlet in Slidell, Louisiana to pick up an order to go. When they arrived at the establishment, Davis parked his car while his wife went in to pick up the order. Because Mrs. Davis was going to be inside the building for just a few minutes, Davis left the motor of the car running. Inadvertently, he pressed the accelerator, causing the vehicle to move forward and strike a garbage can, knocking the can into the outside of the building. At this time, inside the building, there were four people, Mrs. Davis, Mrs. Brewer (the plaintiff herein), Mrs. Brewer’s daughter, Debra Tread-way (who worked as a cashier), and Nathaniel Smith (who worked as cook). These people with the exception of Smith, who could not be located for the trial, testified that they heard the noise, but no person was in any way injured or even involved in the accident in any way.

After the collision with the garbage can, Davis backed his vehicle into the proper parking place, took his daughter and went inside. Upon arriving inside the building he confirmed that his wife and the employees were all right. There was apparently some confusion among the people in the restaurant, and the Davis child was very upset. Mrs. Brewer gave her a soft drink, calmed her down, and then proceeded to discuss the incident with Davis. Davis asked to use the phone located in the store and Mrs. Treadway dialed the number of the police department. Davis spoke to the police officer on duty at the Slidell Police Department and told them that they would not need to send an officer to the scene to make a report since no one was injured. Davis then called his insurance agent to report the accident; he then wrote his name, phone number and address and the name of his agent on a piece of paper which he gave to Mrs. Brewer. He testified that these activities took approximately 15 to 20 minutes, and he saw little damage to the inside or outside of the building. He did notice that on the inside of the building a bench and table had been pushed away from the wall opposite the point where the garbage can struck the building.

After Davis left, according to her testimony, Mrs. Brewer noticed some loose ceiling tiles over the table which had been moved by the collision. This was in the part of the restaurant used by its customers. She assumed, but was not positive, that the tiles had been loosened by the action of the garbage can striking the building. Mrs. Brewer testified that the tiles were made of very light material, and each probably weighed approximately one pound. After Davis left, and Mrs. Brewer noticed the problem with the ceiling tile, another customer came in the restaurant and his child sat down on the bench which had been moved under the loosened ceiling tiles. Mrs. Brewer thereupon asked the child to move, which she did. The customer then paid for his order and left. In order to prevent further use of the area, Mrs. Brewer decided to rope off the area. Before doing so, she decided to climb up on the table, and catch or pull down the loose ceiling tiles. She testified that before she touched any of the tiles, one of them fell on her, causing her to lose her balance and fall to the floor. She stated that she continued working, and that she worked for a day or so after the fall; but, later her back became painful and she sought medical attention. She subsequently required surgery on her back.

The trial court, for oral reasons dictated into the record, dismissed plaintiffs’ case against State Farm Mutual Insurance Company.

In his stated reasons, the trial judge was of the opinion:

“I just don’t find the cause of [causal] connection there. I believe that everything had come to rest and that some intervening cause after that time, caused the injury to the plaintiff, which also caused the workmen’s comp insurer to have to pay the money. For that reason I deny the claim in each case.”

We have carefully reviewed the record and find that the incident involving Davis knocking the garbage can into the building had ended. A new incident began as Mrs. Brewer placed herself in a precarious position on the table. She chose to put herself in this position of peril by using a bench and table as a climbing device, rather than a ladder (which is designed for such purpose). Mrs. Brewer’s fall was caused by her own negligence in choosing this unsafe manner in which to perform this simple task.

This case presents purely factual issues which were resolved by the trier of fact. Our thorough review and evaluation of the record convinces us that the credible evidence supports the lower court’s factual conclusions and the reasons assigned for its decision. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The judgment is affirmed at appellants’ cost.

AFFIRMED.

      . By agreement of the parties, Frank Davis, one of the defendants, was dismissed from the litigation with prejudice prior to the trial on the merits.

      . The suits were consolidated for the purpose of trial.

      . The ceiling tiles were about two by four feet in size and were suspended in a metal framework.


author: WATKINS, Judge.

text:
    Gloria-Ann Lee HILL v. Terry J. HILL.
    No. 82 CA 0064.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Guy A. Módica, Baton Rouge, for plaintiff-appellant Gloria Ann Lee Hill.
    Fred H. Belcher, Baton Rouge, for defendant-appellee Terry J. Hill.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

Gloria-Ann Lee Hill and Terry J. Hill were divorced by judgment dated July 27, 1979. Permanent custody of the couple’s two minor children was awarded to Mrs. Hill, and Mr. Hill was ordered to pay child support in the amount of $200.00 per week for the two children. By judgment dated July 8, 1981, child support was reduced to $600.00 per month. Also, under the July 8, 1981 judgment, the sum of $1,600.00 was set as past due child support (arrearages) and attorney’s fees for Mrs. Hill were set at $300.00, and these amounts were made ex-ecutory. By petition for rule nisi filed July 28,1981, Mr. Hill sought to have permanent custody of the two minor children removed from Mrs. Hill and awarded to him in the best interests of the two children, and to have child support terminated. Mrs. Hill reconvened, seeking judgment for arrearag-es. The trial court pretermitted the question of arrearages, and after a lengthy hearing on custody, awarded custody of the two minor children to Mr. Hill, ordering child support discontinued. Mrs. Hill appealed. We affirm. The sole question before us on appeal is the correctness of the action of the trial court in awarding custody of the two minor children to Mr. Hill.

The trial court in oral reasons was obviously strongly influenced by Mrs. Hill’s past and continuing association with a number of men, with at least two of whom she had sexual relations while the two minor children, both daughters, one aged 10 and one aged 13, were in the same house.

Mrs. Hill worked as a manager and bartender at two cocktail lounges in Baton Rouge, first at the Sanctuary and then at the Tonga Isle. While working there, she met Tommy McDuff. After a rather brief acquaintance, during which Mr. McDuff admitted he had sexual relations with Mrs. Hill, Mrs. Hill invited Mr. McDuff to live in her house. Mr. McDuff moved into Mrs. Hill’s home in which both he and she occupied the master bedroom. Mr. McDuff lived there from October of 1980 until April of 1981, while both minor daughters were constantly present. He baby-sat for Mrs. Hill when she was at work and on those occasions when, after getting off work, Mrs. Hill stayed out until noon the next day, as she did rather frequently. Mr. McDuff paid Mrs. Hill $150 to $200 a month to live in her house.

Finally, Mrs. Hill got a job as night bookkeeper at K-Mart. She frequently took her two daughters to K-Mart to spend the night and permitted them to watch television in a lounge, apparently provided for K-Mart employees, until 2:00 a.m.

Mrs. Hill was frequently depressed and had strong suicidal tendencies. While in the presence of the children, Mrs. Hill made repeated threats to kill herself and threats to kill both herself and the two minor daughters as well. In front of the girls she talked about shooting herself and the two daughters, or throwing the girls into a gas fireplace, or killing herself by running into a lamppost or her most favorite threat, by driving her car into the Mississippi River. Apparently these were not all idle threats for she did actually take overdoses of a prescribed tranquilizer on several occasions. On one occasion in particular she could not be roused and was sent by ambulance to Our Lady of the Lake Hospital where she was diagnosed and treated for prescription abuse. As she lay on what she believed was her death bed, she dictated a death note to her young daughter Elizabeth. Elizabeth, in accordance with her mother’s instructions, wrote down what she thought were to be her dying mother’s last wishes for the disposition of certain items of property and also detailed funeral instructions. That Mrs. Hill subjected her 13 year old daughter to such an anguishing experience reveals a very troubled and clouded mind. This is further evidence by an incident in which Mrs. Hill even went so far as to offer Valiums to the children. This frightened the children so that the ten year old began to cry and the thirteen year old ran out of the house.

These facts alone are sufficient to convince us that living with their mother is a painful and an emotionally disturbing experience. But in addition to the foregoing, the children were also aware that Mrs. Hill was having sexual relationships with several different men. As previously stated, Mrs. Hill had a male roommate, and numerous other male friends as well. She took the children on several trips with a Mr. Nash to a cabin in Texas, where she and Mr. Nash occupied the same bedroom. Elizabeth, the thirteen year old daughter, was aware that Mr. Nash and her mother were in bed together.

The trial court transferred custody of the two daughters to Mr. Hill because it believed Mrs. Hill’s relationship with Mr. McDuff, Mr. Nash and a Mr. Thompson were not in the “best interests of those little girls”. The trial court properly applied the law. The sole test for granting or transferring custody is the best interests of the child. LSA-C.C. art. 157; Bordelon v. Bordelon, 390 So.2d 1325 (La.1980).

We agree that living with a mother who, in front of her children, has repeatedly threatened to take her own life, threatened to take the life of her children, offered prescription depressants to her children and who has continuing sexual relationships with several different men is quite damaging to the daughters, who are in their formative years. Furthermore, the custody decisions and evaluations of fact by the trial court in such cases are entitled to great weight and should be overturned only when there is a clear abuse of discretion. Cleeton v. Cleeton, 383 So.2d 1231 (on rehearing, La.1980); Bordelon v. Bordelon, supra; Stephenson v. Stephenson, 404 So.2d 963 (La.1981). Here, we are in complete agreement with the trial court. The trial court was not guilty of a clear abuse of discretion, but entirely correct.

In the case sub judice the mother’s sexual misconduct is not the primary or the sole consideration upon which we base our decision. The mother’s obvious emotional instability and gross lack of parental responsibility is deleterious to the children’s welfare and contrary to their best interests. Nothing is more powerful in molding children approaching adolescence than the example furnished by their parents. Obviously, Mrs. Hill’s immoral conduct and her lack of parental responsibility, by all known standards of psychology and sociology, has had a harmful molding effect upon her two daughters. In determining the best interests of the children, it is obvious that living with their mother is a disruptive and emotionally upsetting experience for them.

We thus find that the harmful effect of Mrs. Hill’s custody has been proven. The best interests of the two children demand that their custody be awarded to Mr. Hill, their father, and that the judgment of the trial court in so doing be affirmed, at appellant’s costs.

AFFIRMED.


text:
    SUCCESSION OF Wilson MARCEL.
    No. 82 CA 0067.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Thomas L. Wright, for petitioners and appellant Robert B. Marcel, et al.
    Keith M. Whipple, Houma, for defendant and appellee Yvette Marcel Hebert.
    Kenneth Watkins, Houma, for defendants and appellees Robert J. Daigle and Mrs. Jeanne Marcel Daigle.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This is an appeal by Robert B. Marcel, Mrs. Irene Marcel Rhodes, Mrs. Enid Marcel Ferguson, Mrs. Shirley Marcel Fernandez and Mrs. Rosemary Bourgeois Marcel, plaintiffs, from a judgment of the district court in which the donation from Wilson Marcel, decedent, to Yvette Marcel Hebert on June 19, 1972, transferring Lot 3 of Block 2 of Evergreen Heights Subdivision, located in Section 8, T 17 S, R 12 E, Terre-bonne Parish, Louisiana, was set aside; the purported sale of January 8, 1969, by Wilson Marcel to Thomas Marcel was found to be a disguised donation of a tract of land 180 feet by 150 feet, located in Section 8, T 16 S, R 16 E, Terrebonne Parish, Louisiana; the donation made to Mrs. Hebert of the aforesaid Lot 3 of Block 2 of Evergreen Heights Subdivision, and the disguised donation to Thomas Marcel were decreed to be collatable, with the donees given the option of collating in kind or by taking less; and the remaining demands made in the petition in opposition to the final tableau of distribution and for collation and reduction of the donation were dismissed. The basis for the dismissal was that the plaintiffs had failed to prove that the purported cash sales by the decedent to Yvette Marcel Hebert on September 11,1966, to Ray Anthony Marcel on August 5, 1966, and to Jeanne Marcel Daigle and Robert J. Daigle on February 12, 1970, were simulations or disguised donations. We affirm.

The record establishes that Wilson Marcel died on November 19, 1973. The decedent was married to Adele Bernard, who survived him. He was also survived by eight children, the plaintiffs and defendants herein (with Robert J. Daigle, the husband of one of the Marcel children, also named as a defendant). In due course, the decedent’s will was probated on December 5,1973, and Yvette Marcel Hebert qualified as executrix thereof. Certain incidental proceedings took place, and eventually, on February 7, 1975, the executrix filed a tableau of distribution, along with an inventory ap-praisement. Then, on February 28, 1975, the plaintiffs filed a petition and rule in opposition to the tableau of distribution and for collation and reduction of the aforesaid donations which impinge on plaintiffs’ legi-time. Made defendants therein were Yvette Marcel Hebert, Ray Anthony Marcel, Jeanne Marcel Daigle and her husband, Robert J. Daigle. The petition alleged that a donation was made by the decedent to Yvette Marcel Hebert on June 19, 1972; that a purported sale to Mrs. Hebert on September 11, 1966, was not a sale in that no consideration was paid and, therefore, it was a disguised donation. Similar allegations were made with reference to the purported sales made by the decedent to Ray Marcel and Mr. and Mrs. Daigle, demanding that the donations inter vivos should be collated, and that the mortis causa donations should be reduced to a portion not in excess of the disposable portion of the decedent’s estate. The petition also contained an averment that the sale made to one of the plaintiffs, Thomas Marcel, was, in fact, a disguised donation. After hearing on the rule, judgment was rendered, approving the tableau of distribution, subject to the reservation of the rights of the plaintiffs to seek collation and reduction.

Subsequent thereto, the plaintiffs filed an amended petition, alleging that if any consideration was given for the transfer of the property in the purported sales, it was less than the true value thereof, making the transactions still subject to collation. In responding, Mrs. Hebert answered that if the amounts paid were not adequate consideration, then the value of services performed by her for the decedent and his wife exceeded the value of the property received. After trial on the merits, the trial court rendered the judgment complained of herein.

On this appeal, there are three separate transactions that are in dispute: First, the purported cash sale from the deceased to Yvette Hebert on September 11, 1966; second, the purported cash sale to Ray Marcel on August 5, 1966; and third, the purported cash sale to Mr. and Mrs. Daigle.

Wilson Marcel-Yvette Marcel Hebert cash sale, September 11, 1966

The record reflects that by an instrument referred to as a cash sale, Wilson Marcel purported to sell to his daughter, Yvette Hebert. The act of sale recited that a cash consideration of $9,000.00 was paid by the purchaser to the seller. In considering this transaction, the trial judge found:

“In an effort to establish such proof as regards the sale of property by the decedent to Yvette Marcel Hebert on September 11, 1966, the petitioners presented certain discrepancies in the receipts signed by the decedent and circumstances surrounding the issuance of checks by Yvette Marcel Hebert to the decedent. The Court finds that the evidence and testimony taken on a whole reveals that the plaintiffs have failed to meet the burden of proof required by the law to allow for a finding that the sale was in fact a donation. Therefore, the Court finds that the transfer of property was a sale and therefore not subject to collation.”

We disagree with this finding of the trial court. We believe that the lower court erred in its placing of the burden of proof on the plaintiffs. When plaintiffs established a prima facie case, the burden then shifted to the defendant to establish the reality of the sale. Johnston v. Bearden, 127 So.2d 319 (La.App. 2 Cir.1961), cert, den. April 24, 1961. When called on cross-examination, Mrs. Hebert admitted that on the date the purported act of sale was executed she did not pay $9,000.00 cash to her father as the deed recited. She claimed to have paid him $700.00 “after everybody had left after the sale.” She testified that she did actually pay the entire amount of the recited consideration ($9,000.00) over a period of seven years. She produced various cash receipts and several cancelled checks which she claimed represented payments to her father for the property involved in the transaction. She admitted, and the record establishes, that her father earlier donated a lot to her. The cash receipts were written out by Mrs. Hebert and signed by her father. As to the checks, it appears from her testimony that each time she gave her father a check, she also took him to the bank to cash it. Mrs. Hebert’s bank statement for September 13, 1972 is noteworthy in that on August 22, 1972, her account showed a balance of $1093.91 and on August 25th, a balance of $893.91, yet on August 23, 1972, she issued a check to Wilson Marcel in the amount of $3,000.00. Then on August 24th there is a check which was deposited in her account on August 28, 1972. Again on December 18,1972, there is a check from Mrs. Hebert in the amount of $1,000.00 to her father, and on the same date, a check from Wilson Marcel to Yvette M. Hebert. On August 20, 1973, there is a check of $1,000.00 to Wilson Marcel, endorsed by him, and then endorsed by Mrs. Hebert, who admitted cashing it. It is significant that Mrs. Hebert’s husband, Joseph Hebert, who was present when several of the receipts were signed, never saw his wife pay her father any money. The way the receipts were made out and the way the checks were handled lead us to believe that Yvette Marcel Hebert was not actually paying the price to her father on the purported sale. Taking the evidence as a whole, we believe that Mrs. Hebert has failed to prove that the transaction between her and her father, Wilson Marcel, was a sale.

Nevertheless, the fact that we find that the transaction between Mrs. Hebert and her father was not a sale does not necessarily mean that the transaction must fall, or be characterized as a disguised donation. See Owen v. Owen, 336 So.2d 782 (La.1976). Rather than the disguised donation which appellants contend that it is, we believe the evidence establishes that the transaction is an onerous donation. The facts are that Mrs. Hebert agreed to take care of her parents and a grandmother (Mr. Marcel’s mother), as consideration for the transfer of the subject land to her by her father. The transaction is onerous in that Mrs. Hebert received the land for services rendered and to be rendered in taking care of her grandparent and parents, and for expenses incurred by her in connection with their care. She also agreed to give up some of her business engagements and to move near her parents. The evidence establishes that she did take care of the grandparent during the final illness, at her father’s request, over a period of about a year. Mrs. Hebert also sacrificed furthering her education in nursing at her father’s request to take care of his mother. The evidence in this case favoring an onerous donation is certainly as strong as, if not stronger, than that in the case of Blossman v. Olsen, 365 So.2d 545 (La.App. 1 Cir.1978), writ denied, 365 So.2d 1374 (La.1978), where this Court held the transaction to be an onerous donation. In Blossman, the evidence showed that the daughter had cared for her mother during the last three years of the mother’s life, and that the property had been transferred to the daughter to induce her to come and live with her mother.

The assumption of the obligation for support and care is a valid and valuable consideration. We conclude that the consideration paid for the property which Mr. Marcel conveyed to his daughter was adequate, and that the act of sale was not a simulation or disguised donation. See Russell v. Culpep-per, 344 So.2d 1372 (La.1977). We further find that the value of the services contemplated by the conveyance and rendered by the transferee to the grandmother and both parents exceeded the value of the property conveyed. The evidence establishes that the value of the land conveyed did not manifestly exceed that of the charges imposed on the transferee. LSA-C.C. art. 1524. There is no proof that the value of the property conveyed to Mrs. Hebert exceeded by one-half the value of the services she rendered. See LSA-C.C. art. 1526; Manuel v. Hebert, 236 So.2d 880 (La.App. 3 Cir.1970). The charges imposed on Mrs. Hebert of support of the grandparent and parents, with the proof that such charges were fulfilled over a long period of time, sustains our conclusion that the contract was an onerous donation; and, hence, not subject to collation, or to any of the rules of the gratuitous donation. We find that Mrs. Hebert is entitled to be recognized as owner of the property conveyed to her by her father. Quinn v. Stafford, 357 So.2d 628 (La.App. 1 Cir.1978); Succession of Dickens v. Huey, 217 So.2d 228 (La.App. 2 Cir.1968).

Wilson Marcel-Ray Marcel cash sale, August 5, 1966

We agree with the trial court that the evidence establishes that the transfer of property from Wilson Marcel to his son, Ray Marcel, was a cash sale. The act recites that a cash consideration of $2,000.00 was paid by the vendee. Plaintiffs rely on LSA-C.C. art. 2444 to attack the sale as being a donation in disguise. While the evidence shows that the vendee did not actually pay the consideration at the time of the transaction, as the deed recites, there is proof in the record, accepted by the trial judge, that Ray Marcel did pay the full purchase price of the property sold to him. Ray Marcel testified that he paid his father $2,000.00 cash on August 15,1966, some ten days after the sale, and that his father gave him a receipt for the payment. The payment was made in the presence of Mr. and Mrs. Joseph Hebert, each of whom corroborated the testimony of Ray Marcel that he paid the purchase price to his father on August 15th. As stated above, the record reflects that the judge found that Ray Marcel actually paid the $2,000.00. His factual finding is entitled to great weight, especially where the credibility of witnesses is involved, and his conclusions as to the facts will not be disturbed unless found to be clearly erroneous. Russell v. Culpepper, supra.

Marcel-Daigle cash sale, February 12, 1970

The sale made by Wilson Marcel to Mr. and Mrs. Daigle is attacked on the ground that the price paid was less than one-fourth of the value of the" property. The trial judge found, in considering this transaction:

“The sale made by the decedent to Jeanne Marcel Daigle and Robert J. Dai-gle is attacked by petitioners on the grounds that the price paid was less than one-fourth the value of the property. The Court finds that the condition of the property at the time of the sale was such as to make its value substantially less than that of a property of equal size in the same area but in better condition. The Court therefore finds that the consideration paid for this property was adequate in light of the circumstances and therefore not collatable.”

We agree with this finding. The record reflects that this parcel of land was very low, subject to flooding, and was undeveloped at the time of its acquisition. It was used as a dumping ground for other parts of the subdivision and the area. The record shows that the Daigles spent much time, money, and labor to improve the property so that it was put in usable condition. The trial court found that the Daigles paid an adequate price for the tract in question in the condition in which it was at the time of the conveyance. The evidence supports this finding.

Reduction of donations mortis causa

The appellants have also raised the question of reduction of the donations mortis causa to Robert Marcel, Ray Marcel, and Yvette Marcel Hebert. The total value of the gross estate left by Wilson Marcel, as shown by the inventory, is $55,950.38. After deducting privileged debts, administrative costs and inheritance taxes, the net estate has a value of $47,415.44. The donation of January 8, 1969, to Thomas Marcel, valued at $4,725.00, and the donation of June 19, 1972, to Yvette Marcel Hebert, valued at $3,270.00, must be added to the net figure giving a total value of the estate of $55,410.44. The disposable portion of the decedent’s estate, based upon eight children, is one-third of $18,470.14. The forced portion is then $36,940.30. Using this figure, the legitime of each of the eight children amounts to $4,617.53. The residuum of the estate (the estate remaining after the particular legacies to Robert Marcel, Ray Marcel and Yvette Marcel Hebert) amounts to $24,197.94. Since three of the children (Robert, Ray and Yvette) have already received their portions, the residuum needs only to be divided five ways. By dividing the sum of $24,197.94 into five parts, we get the sum of $4,839.58, which amount exceeds the sum due each of these children as his or her legitime. Accordingly, we find that the residual portion of the estate exceeds the forced portion so that there is no impingement on the legitime, and it is unnecessary to reduce the testamentary bequests.

For the reasons assigned, we affirm the judgment appealed at appellants’ costs.

AFFIRMED.

      . Pending the action, one of the original plaintiffs died and his succession representative, Rosemary Bourgeois Marcel, was substituted as a party plaintiff.

      . Yvette Marcel Hebert was sued individually and as executrix of the Succession of Wilson Marcel, deceased.

      . The lot to Robert Marcel is valued at $4,700.00, the lot to Ray Marcel is also valued at $4,700.00. The tract of land to Mrs. Hebert is valued at $21,812.50. The obligation to collate is not applicable to donations mortis causa. Succession of Meyer, 198 La. 53, 3 So.2d 273 (1941); Jordan v. Filmore, 167 La. 725, 120 So. 275 (1929).


text:
    Ernestine TRAINER v. AYCOCK WELDING COMPANY, et al.
    No. 82 CA 0096.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Robert L. Kleinpeter, Baton Rouge, for plaintiff-appellant, Ernestine Trainer.
    Paul Marks, Jr., Baton Rouge, for defendant-appellee, Aycoek Welding Co., et al.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit for damages in tort arising out of an automobile accident which occurred on July 18, 1980. Suit was filed on September 25,1981. The defendants filed a peremptory exception pleading the one year prescription of La.C.C. art. 3536. The trial court sustained the plea of prescription and dismissed the petition. This devolutive appeal followed.

I. FACTS

The petition alleges the following facts: (1) on July 18, 1980, Ernestine Trainer was operating a 1972 Oldsmobile automobile owned by her in an easterly direction on U.S. Highway 90 near the town of Amelia in Assumption Parish, Louisiana; (2) at that same time and place, Kevin Paul Freeman was operating a 1980 GMC truck owned by Aycoek Welding Supply Company, Inc. (Aycoek) in the course and scope of his employment in an easterly direction on U.S. Highway 90; and (3) the truck driven by Freeman struck the rear of a 1980 Chevrolet owned and operated by Connie L. Davis and propelled it into the rear of the Trainer vehicle.

After this alleged accident, Trainer employed Albert Lee Abraham, an attorney authorized to practice law in Mississippi but not in Louisiana, on a contingent fee contract basis. Abraham then contacted Dennis Smith, a claims adjuster for Aycock’s insurer, Sentry Insurance Company (Sentry), and advised that he represented Trainer and would furnish copies of medical bills and expenses when they were available. In March of 1981, Abraham transmitted to Sentry copies of all medical bills and expenses and special damages that were available. Subsequently, George Rauch commenced handling the claim for Sentry. Rauch and Abraham started settlement negotiations and discussed policy limits and the question of liability. Rauch provided Abraham with copies of all pleadings in a companion ease which had been filed. By a letter dated June 23,1981, Rauch confirmed to Abraham a verbal offer to settle Trainer’s claim for $21,721.97. This offer was never accepted. Shortly thereafter, Sentry moved its office from New Orleans to Baton Rouge and Rauch terminated his employment. Abraham attempted to contact Rauch, but was informed in late July or August that he was no longer with Sentry. On September 11, 1981, Abraham wrote to Sentry concerning the claim. By letter dated September 18, 1981, and received on September 21, 1981, Jack Parker, a claims examiner for Sentry, advised Abraham that the claim was prescribed and that “we can do no further negotiations with you.” Immediately thereafter Abraham contacted a Louisiana attorney who filed suit on behalf of Trainer on September 25, 1981.

II. PRESCRIPTION

Generally, tort actions prescribe one year from the date of the offense or quasi-offense. La.C.C. art. 3536. The burden of proof rests upon the party pleading prescription. Langlinais v. Guillotte, 407 So.2d 1215 (La.1981). However, where the petition shows on its face that the prescriptive period has run, as in the instant case, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. Emery v. Cabral, 400 So.2d 340 (La.App. 4th Cir.1981), writ denied 405 So.2d 533 (La.1981); Andrus v. Patton, 394 So.2d 714 (La.App. 3rd Cir.1981); McEachern v. Raborn, 393 So.2d 231 (La.App. 1st Cir.1980).

III. INTERRUPTION OF PRESCRIPTION

A. ACKNOWLEDGMENT. Trainer contends that the prescriptive period was interrupted because Rauch, on behalf of Sentry, acknowledged Sentry’s indebtedness to her. Abraham testified that Rauch told him that “there was no doubt about liability, that his company was liable for the damages and injuries” and that “we should be able to come up with an equitable settlement of it.” Abraham further testified that Rauch said that he would submit an offer “due to the fact that there was no liability question.” Subsequently, Rauch sent the letter of June 23,1981, making the offer to settle in the sum of $21,721.97, and stated in the letter that “(W)e await your counter-offer.”

Rauch in his testimony said that he was a claims examiner for Sentry Insurance Company in May and June of 1981. He described this claim as “a case that could result in a liability judgment against us and a case to settle.” He further described this claim as a “routine, medium-sized claim handled on a routine fashion.”

Prescription of an unliquidated claim for damages in tort may be interrupted by the tacit acknowledgment of the debtor. Flowers v. United States Fidelity & Guaranty Company, 381 So.2d 378 (La.1979); Richardson v. Louisiana Farm Bureau Mutual Insurance Company, 393 So.2d 200 (La.App. 1st Cir.1980), writ denied 398 So.2d 529 (La.1981). In the Flowers case, the court determined that the adjuster’s discussions with the claimant to try to reach a compromise “did not manifest an intention to admit the company’s indebtedness to her.” Flowers v. United States Fidelity & Guaranty Company, supra, 381 and 384. In the Richardson case, there was an oral compromise agreement to settle the plaintiff’s claim and this court found that there was a tacit acknowledgment of the debt which interrupted prescription.

It has long been the public policy of this state that the compromise of disputes are highly favored and promote judicial efficiency. La.C.C. art. 3071 et seq.; Richard v. Southern Farm Bureau Casualty Insurance Company, 254 La. 429, 223 So.2d 858 (1969); Saunders v. New Orleans Public Service, Incorporated, 387 So.2d 603 (La. App. 4th Cir.1980), writ denied 394 So.2d 614 (La.1980); McKowen v. Gulf States Utilities Company, 358 So.2d 675 (La.App. 1st Cir.1978); Louisiana Farm Bureau Mutual Insurance Company v. State Farm Mutual Automobile Insurance Company, 348 So.2d 1311 (La.App. 3rd Cir.1977). Candid and good faith settlement negotiations should be encouraged between the parties to a dispute to implement this policy. If settlement negotiations which do not result in an oral compromise agreement can constitute an acknowledgment of the disputed indebtedness so as to interrupt prescription, then undoubtedly in the future such negotiations will be less candid and less productive. We do not believe that the law should be interpreted to place such a chilling effect on settlement negotiations. The ruling of the trial court that the negotiations between the parties did not result in an acknowledgment is correct.

B. CONTRA NON VALENTEM. Trainer contends that her attorney was lulled into inaction by a misrepresentation of Rauch on behalf of Sentry making the doctrine of contra non valentem applicable to interrupt prescription. Although La.C.C. art. 3521 provides that prescription runs against all persons unless they are included in some exception established by law, Louisiana jurisprudence has recognized the ancient civilian doctrine of contra non valen-tem agere nulla currit praescriptio which recognizes four situations where prescription may be interrupted because a plaintiff is unable to exercise his cause of action when it accrues. Corsey v. State, Department of Corrections, 375 So.2d 1319 (La.1979).

Abraham testified that Rauch told him that there was no need to file suit because the matter could be settled. Both Abraham and Rauch testified that they had no discussions about the statute of limitations for tort in the State of Louisiana. These facts do not show that Rauch committed an act that prevented Trainer from availing herself of her cause of action. The doctrine of contra non valentem is not applicable where a party fails to timely file suit due to lack of knowledge of the applicable prescriptive law. La.C.C. art. 7; Green v. Grain Dealers Mutual Insurance Company, 144 So.2d 685 (La.App. 4th Cir.1962). There is no duty on the part of an insurance adjuster to advise a claimant of the proper prescriptive period. Pellerin v. Cashway Pharmacy of Franklin, Inc., 396 So.2d 371 (La.App. 1st Cir.1981); Gaspard v. Liberty Mutual Insurance Company, 243 So.2d 839 (La.App. 3rd Cir.1971), writ denied 258 La. 357, 246 So.2d 680 (1971).

IV. CONCLUSION

For the foregoing reasons, the judgment of the trial court sustaining the peremptory exception pleading prescription is affirmed at appellant’s costs.

AFFIRMED.


text:
    Catherine FUSILIER, et al. v. CITY OF HOUMA, et al.
    No. 82 CA 0097.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Kerry E. Shields, New Orleans, for plaintiffs and appellants.
    Joseph L. Waitz, Houma, for defendants and appellees.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

Plaintiffs, Catherine Fusilier, individually and on behalf of her minor children (Alana, Angela, and Katherlyn Verrett), and Herbert Mitchell, individually and on behalf of his minor child (Morris Mitchell), have de-volutively appealed the judgment of the trial court in favor of the defendants, City of Houma, Charles Farmer (in his capacity as Chief of the Houma City Police Department), and Theodore J. Naradovy (a police officer for the city of Houma, dismissing the plaintiffs’ petition for damages. We affirm.

This suit arises out of an accident on May 31, 1980, involving one of the defendants, Naradovy, allegedly caused when the police officer backed his police unit into the four minor children as they were riding their bicycles, two children on each bike, on Senator Circle in the City of Houma, Louisiana. The police unit had just arrived on the scene moments before as assisting unit for other officers investigating a disturbance in the immediate area. While Naradovy and his partner, Officer Donna Clenney, were still in the parking area, they were ordered by the shift commander to investigate another disturbance in the neighborhood. It was as they were leaving the parking area that their vehicle was involved in the collision with the bicycles. Both police officers said that the police unit was being operated in a careful manner and had stopped backing up preparatory to proceeding forward, when the two bikes, one right after the other, ran into the rear of the police vehicle. The impact was slight, and only one of the children on the bicycles indicated an injury.

We believe that the issue in the instant case can be resolved on the absence of any negligence on the part of the driver of the police vehicle, but we will also express ourselves as to certain aspects of contributory negligence on the part of the children inasmuch as the trial court based his decision primarily on that issue.

There are several well-established rules of law which are applicable in the case at bar. A motorist is held to a high degree of care when the presence of children near a roadway is known to or observed by him; or, if not observed, could have been through proper diligence. Nevertheless, the law does not make him an insurer of the safety of such children. Keel v. Thompson, 392 So.2d 713 (La.App. 3 Cir.1980). Also a child of the ages of these children (ten, fifteen, and two were thirteen), possessed of normal intelligence, has reached a point in age, growth, and judgment which subjects the child’s actions to the scrutiny of a charge of contributory negligence. Amacker v. Kirby, 224 So.2d 18 (La.App. 1 Cir.1969), writ refused, 254 La. 794, 226 So.2d 922 (1969). Each case, of course, must turn on its own particular set of facts. Firmin v. Brown, 264 So.2d 669 (La.App. 1 Cir.1972).

In applying the legal principles set out above, the following facts and circumstances were considered by us to be important to a decision of this case. A crowd had gathered in the immediate area of the parking place. At the time, some of the street lights were out and it was between 8:30 and 9:00 p.m. o’clock, so the area was dark. The police officers, responding to another call, had entered their unit and proceeded to back up with both officers looking to see if the way was clear. As the driver of the vehicle stopped his backward movement, two “thumps” were heard by the officers. As the police officers testified, after getting out of the police car, they discovered the children and bicycles on the ground. While their testimony differs from that of the children, the trial court accepted the officers’ version of the incident.

Other circumstances include the. absence of lights on the bicycles (there were reflectors) and two riders on each bicycle. Furthermore, while the children admitted seeing the police car in their path, they made no attempt to stop, as they said, they believed the police car was going to turn instead of proceeding directly back as it did. Additionally, at the time of the accident Katherlyn was ten years old, Morris and Alana, thirteen, and Angela, fifteen, all of sufficient age to appreciate the risks of riding an unilluminated bicycle at night near a car in motion. The trial judge found each child to be intelligent and fully capable of recognizing the dangers of his or her acts on this occasion, and thus capable in law of being contributorily negligent.

We have briefly summarized the testimony of the witnesses in order to justify the determination of facts as found by the trial court. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The liability of the defendants was dependent upon Naradovy’s negligence and the lack of contributory negligence of the children. After a review of the record, we are satisfied that the trial judge committed no manifest error in his findings of fact. Assuming that the police officer was negligent in his backing maneuver, the children were also negligent in the manner in which they were riding the bicycles under the circumstances of this case. We find that they ran into the rear of the police unit because of their improper maneuvers and failure to see what they should have seen. Joseph v. Allstate Insurance Company, 256 So.2d 837 (La.App. 3 Cir.1972).

The case at bar is distinguishable from cases where the court found that the motorist had the last clear chance to avoid a collision with a child on a bicycle who had been observed by the motorist in a position of peril on a roadway while the motorist was yet a considerable distance away; e.g., Dufrene v. Dixie Auto Insurance Co., 373 So.2d 162 (La.1979). In the instant case, Naradovy had no last clear chance; while he was preparing to move forward, after completing the backing maneuver, the bicyclists ran into his vehicle. In any event, by the time he could have observed the children on the bicycles in a perilous position, it was much too late for the accident to be avoided. Moreover, the facts of the present case are distinguishable from those cases where motorists have failed to observe children in the vicinity of a thoroughfare, or have failed to take the necessary reasonable precautions upon observing the children.

Accordingly, for the above and foregoing reasons, the judgment of the district court is affirmed at the costs of appellants.

AFFIRMED.


text:
    Silmon O’Neal SEAL v. Brenda Louise Fournet SEAL.
    No. 82 CA 0100.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Donald H. Lee, Bogalusa, for plaintiff.
    Herbert R. Alexander, Bogalusa, for defendant.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This case commenced as a suit for a legal separation by Silmon O’Neal Seal against his wife Brenda Louise Fournet Seal. Mrs. Seal answered the original petition and filed a reconventional demand for a legal separation, child support and alimony pen-dente lite. Mr. Seal answered the recon-ventional demand and filed a supplemental and amended petition seeking a divorce on the grounds of adultery. The trial court found that there was sufficient evidence to prove adultery and granted a judgment of divorce in favor of Mr. Seal. This suspen-sive appeal followed.

The parties to this action were married in Poplarville, Mississippi, on November 21, 1960. They subsequently moved to Washington Parish, Louisiana, where they maintained their last matrimonial domicile and resided at the time of trial. On March 5, 1981, they physically separated when Mr. Seal moved out of the matrimonial domicile and have not reconciled since that time.

Mr. Seal testified that on July 23,1981, at approximately 12:50 A.M., he observed Mrs. Seal with James Baham in front of Ching’s Lounge in Bogalusa, Louisiana. He again saw Baham in Mrs. Seal’s trailer located on Jackson Street in Bogalusa on July 24,1981. As a result of these two encounters, he hired a private detective to place Mrs. Seal under surveillance.

Robert R. Little testified that he worked as a private investigator for Hawkshaw Investigations. On August 4, 1981, at 7:20 P.M., he observed Baham arrive at Mrs. Seal’s trailer. Baham subsequently left in his automobile. Mrs. Seal followed Baham in her automobile to Baham’s home on Seven Mile Road. They arrived at 8:23 P.M. Little did not see either party enter the house because of the location of his point of observation. The lights that Little could observe at the Baham house went out at 10:30 P.M. Little conceded on cross-examination that he did not know if he could see all of the lights in the house, that he did not know if the house had window shades, and admitted that some lights could have been left on that he was unable to observe. Little did not know the floor plan of the Ba-ham house. The lights that he could observe came back on at 4:40 A.M. on August 5,1981. No vehicles left the premises prior to that time. At 5:30 A.M., Mrs. Seal left in her car and returned to her trailer in Bogalusa.

On August 21, 1981, at 11:00 P.M., Little observed Mrs. Seal leave the Bogalusa Medical Center and proceed to a house trailer on West Sixth Street where Baham’s automobile was located. At 1:40 A.M., Mrs. Seal left the trailer and drove her car past Little’s vehicle and then returned to the trailer. Mrs. Seal went in the trailer and shortly thereafter, Baham came out and parked his car behind Little’s car. At 2:10 A.M., a Washington Parish Deputy Sheriff arrived and checked Little’s identification. Baham then drove his car into a position to block Little and Mrs. Seal drove off.

A spouse’s innocence of immoral acts is presumed and the burden is upon the complaining spouse to prove an adulterous relationship by either direct or circumstantial evidence. Bynum v. Bynum, 296 So.2d 382 (La.App. 2nd Cir.1974). Neither Mr. Seal nor Little testified that they observed Mrs. Seal having intercourse with Baham, and Mrs. Seal denied that such a relationship took place. Thus, Mr. Seal’s case is not supported by direct evidence and must be decided on circumstantial evidence. To warrant a divorce on the ground of adultery, circumstantial proof must be so convincing as to exclude any other reasonable hypothesis but that of guilt. Hayes v. Hayes, 225 La. 374, 73 So.2d 179 (1954); Billiot v. Rivere, 378 So.2d 512 (La.App. 4th Cir.1979). The mere fact that a man and woman are alone together does not necessarily create a presumption that adultery was committed. Hermes v. Hermes, 287 So.2d 789 (La.1973); Kendrick v. Kendrick, 232 La. 1104, 96 So.2d 12 (1957). An appellate court will not disturb a trial court’s finding of fact unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

There is no evidence in the record that Mrs. Seal and Baham were in each other’s presence in a state of undress and there is no evidence that on the night of August 4 and 5, 1981, they spent the night together in the same bedroom. Hanley v. Hanley, 381 So.2d 963 (La.App. 4th Cir. 1980); Soroe v. Soroe, 334 So.2d 543 (La. App. 4th Cir.1976). There is no evidence that the parties lived together as husband and wife or that they spent extended periods of time together behind a locked bedroom door. Cancienne v. Cancienne, 384 So.2d 843 (La.App. 4th Cir.1980), writ denied 392 So.2d 668 (La.1980). In the absence of corroborative evidence, such as that specified above, the mere fact that a man and a woman occasionally stay overnight on the same premises is not sufficient to prove adultery. Jessen v. Jessen, 386 So.2d 953 (La.App. 3rd Cir.1980). The ruling of the trial court that there was sufficient evidence to prove adultery in this case is clearly wrong.

For the foregoing reasons, the judgment of the trial court granting a divorce on grounds of adultery is reversed. The appellee is cast for all costs.

REVERSED.

      . La.C.C.P. art. 3942.

      . Baham was not called as a witness.

      . The appellant, Mrs. Seal, did not raise as an assignment of error the failure of the trial court to render judgment in her favor on the recon-ventional demand for a legal separation. Since that issue was not raised by this appeal, we cannot adjudicate it.


text:
    Roy A. CAZES v. Dorothy Cedotal ROBERTSON.
    No. 82 CA 0101.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    George L. Clauer, III, Ernest R. Eldred, Baton Rouge, for plaintiff-appellant Roy A. Cazes.
    Fred H. Belcher, Jr., Baton Rouge, for defendant-appellee Dorothy Cedotal Robertson.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

Roy A. Cazes, plaintiff, has devolutively appealed the judgment of the trial court in favor of Dorothy Cedotal Robertson, defendant, wherein the court refused to grant a declaratory judgment recognizing that plaintiff had a servitude of passage for his own exclusive use and denied him the requested injunctive relief. We affirm.

Our review of the record convinces us that there is no basis for plaintiff’s claim of an exclusive servitude. The claim arises out of these facts: In 1968, Jessie H. Crawford, the owner of certain acreage in East Baton Rouge Parish, Louisiana, divided the property into two certain tracts, designated as Tract Y and Tract Z. After the division, Tract Z became land-locked, and on the survey map of resubdivision, Crawford made the following declaration:

“I, Jessie H. Crawford, do hereby dedicate the 60 ft. wide servitude of passage shown hereon for the perpetual private use of the owner of Tract ‘Z’.” (This language was repeated on a map purportedly revising the servitude, dated June 5, 1970.)

Crawford had sold Tract Z to Mr. and Mrs. Thomas C. Crawford by cash deed dated May 31, 1968. Thereafter, the property was conveyed on July 20, 1972, to plaintiff, the present owner of Tract Z. Defendant, Dorothy Cedotal Robertson, is the owner of a tract of land through which the “60 ft. wide servitude of passage” runs to reach Tract Z. Alleging that defendant’s tenants (who occupy mobile homes on defendant’s premises) were causing excessive wear on the passageway and were interfering with his right of exclusive use of the passageway, plaintiff seeks injunctive relief enjoining defendant’s personal use of said servitude and granting the right of use to other persons. Particularly, plaintiff asks that defendant’s tenants not be allowed the use of the passageway. In addition, plaintiff seeks to prevent defendant from creating a mobile home park, allegedly in violation of a parish zoning ordinance.

After trial on the merits for a permanent injunction, by stipulation of the parties, the trial court rendered the judgment herein appealed. In his written reasons for judgment, the trial judge stated in part:

“In summary, it is the opinion of the Court that a servitude was not created by Jessie Crawford in 1968. The Court further finds a servitude was never created by the owner of one parcel of land in favor of the owner of another parcel of land. Nor was a servitude created in favor of any parcel of land presently owned by plaintiff. Even if a servitude was granted, it is the opinion of this Court that it would be a legal servitude of passage and governed by the laws pertaining thereto.”

First, plaintiff-appellant argues that the trial court erred in determining that the servitude of passage was a “legal servitude” and not a “conventional servitude.” There is no merit to this argument. The act from Jessie H. Crawford to Mr. and Mrs. Thomas C. Crawford makes no mention of a transfer of a servitude to the vendees. It merely refers to a certain map for a description of the tract of land conveyed. In so doing, it reads:

“Commence at a point on the southerly side of Milldale Road which point is the centerline of the right of way to the hereinafter described property .... ”

From the record, we find that the servitude of passage in the instant case is a legal servitude, not a conventional servitude. It arose by operation of law; it was not established by mutual assent of the parties in a contract. It was not established in favor of lands conveyed by deed, by exchange, or by partition, or by any other manner of voluntary transfer.

When servitudes are imposed by law, their use and extent are “confined to the wants of the person who has it.” This principle is set out in LSA-C.C. art. 722 in its definition of “servitude of passage,” as follows:

“Predial servitudes are established by all acts by which immovables may be transferred. Delivery of the act of transfer or use of the right by the owner of the dominant estate constitutes tradition.”

Generally speaking, a servitude is imposed upon an “estate” or in favor of an “estate”; it is not imposed on the person, or in favor of the person. LSA-C.C. art. 646. That is what was done in the instant case. Despite the language “use of the owner of Tract Z” in confirming the servitude of passage in the survey map of resubdivision, it is evident that the servitude was intended as a real benefit to the “estate” itself, not to the “person.” Consequently the servitude must be construed as a real right, not a right which was personal to the “owner of Tract Z.” LSA-C.C. art. 733 provides:

“When the right granted be of a nature to confer an advantage on an estate, it is presumed to be a predial servitude.”

A real advantage was secured for the dominant estate, Tract Z, because without the servitude of passage, the tract would have been land-locked, thereby diminishing its value and impairing its usefulness. Hence, as shown, the benefit conferred by the confirmation of the servitude was not personal to any particular person or owner, but was of obvious value and advantage to the estate.

This right of passage being in favor of immovable property is a “predial” servitude, i.e., a real right which is inseparable from the immovable to which it is attached, and one which remains the same regardless of any change of ownership of the estates owing or due the servitude. LSA-C.C. art. 650; Brown v. Terry, 103 So.2d 541 (La. App. 1 Cir.1958). For these reasons, we hold the servitude to be predial in nature and imposed on the dominant estate (Tract Z) by law.

In the case at bar there was no contract between appellant and his ancestors in title conveying a servitude of passage to him. The servitude was not reflected in a contract or established by title. It was imposed by law, and merely unilaterally confirmed by Jessie H. Crawford. Hence, the instant ease is factually distinguishable from Brian v. Bowlus, 399 So.2d 545 (La.1981), in that in Brian the servitude was conveyed by an act of sale, thus established by title; here there was no such conveyance or establishment by title, as discussed above.

Next, appellant urges that the trial court was in error in determining that the alleged servitude was not for the private use of plaintiff to the exclusion of all others. The following articles of the Louisiana Civil Code govern the respective rights of the parties (estates) to a legal servitude of passage relevant to the extent and manner of the use of the servitude:

The right of passage for the benefit of an enclosed estate shall be suitable for the kind of traffic that is reasonably necessary for the use of that estate. L.S.A.C.C. art. 690.
The owner of the enclosed estate may construct on the right of way the type of road or railroad reasonably necessary for the exercise of the servitude. L.S.A.— C.C. art 691.
The owner of the enclosed estate may not demand the right of passage anywhere he chooses. The passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands. L.S.A.-C.C. art. 692.
The owner of the enclosed estate has no right to the relocation of this servitude after it is fixed. The owner of the ser-vient estate has the right to demand relocation of the servitude to a more convenient place at his own expense, provided that it affords the same facility to the owner of the enclosed estate. L.S.A.C.C. art. 695.

Thus, it appears from the quoted codal articles that although the owner of the dominant estate has the right to pass through the servient estate to get to a public road, this right does not shut out all others from its use; most certainly, the owner of the dominant estate is not given a right to hinder the owner of the servient estate in the enjoyment of his own property. Patin v. Richard, 291 So.2d 879 (La.App. 3 Cir.1974). There is no right given to the owner of the dominant estate to prohibit the use of such servitude by the owner of the servient estate or by others holding rights through him.

We thus find that there was no intention on the part of Jessie H. Crawford to exclude from use of the servitude, which was actually an existing passageway, those tenants living nearby who would have no other means of ingress and egress to their homes. The purpose of confirming this servitude was simply to allow the “owner” of Tract Z to traverse the Crawford Tract to get to a public road. It was not intended to award Tract Z’s owner an exclusive franchise of passage.

Finally, appellant contends that the trial court erred in denying him injunctive relief from alleged violation of the parish zoning ordinance. On this issue, the trial court found that “no such threat [of violation of the parish zoning ordinance] has been proven to warrant the issuance of an injunction.” This factual question was decided adversely to plaintiff, and the evidence in the record supports the trial judge’s conclusion. The record establishes that the finding of the trial court is not clearly wrong on this issue. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The case relied upon by appellant is clearly factually distinguishable. Howard v. Langevin, 363 So.2d 928 (La.App. 2 Cir.1978), concerned the defendant’s violation of a zoning ordinance. Such violation was established on the trial and the defendant conceded on appeal that by erecting an excessively high fence, his activities violated the Caddo Parish zoning ordinance.

For the foregoing reasons, we affirm the trial court’s judgment. All costs on appeal are assessed against the appellant, Roy A. Cazes.

AFFIRMED.

      . The Act of Cash Sale to the Thomas C. Craw-fords refers to a certain map in order to describe the property conveyed. There is no express mention that a “servitude of passage” or “right of way” was transferred with the land; however, the deed contains the following language: “Commence at a point on the southerly side of Milldale Road which point is the center-line of the right of way to the hereinafter described property, .. .

      . All references to Civil Code articles are as amended by Act 514 of 1977, effective January 1, 1978.