text:
    Joseph C. YOUNG, Jr. v. Raymond M. WAYDE and Miller Chemical Company, Inc.
    No. 13131.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.

      Risley C. Triche, Triche, Sternfels & Nail, Napoleonville, for plaintiff.
    Jacob D. Landry, Landry, Watkins & Bo-nin, New Iberia, for defendants.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This appeal is from a judgment in favor of plaintiff, individually, and for the use and benefit of his minor daughter, who, as a pedestrian, sustained injuries resulting from contact with the defendant automobile. The issue presented is whether the trial court based its decision upon an improper standard of care and, alternatively, whether the defendant driver was negligent under the facts of the case. The plaintiff answered the appeal seeking a substantial increase in the amount awarded for the minor.

The accident occurred on April 7, 1977, at approximately 7:00 P.M. on U. S. Highway 90 near Morgan City, Louisiana. At that point the highway is a straight, two-laned, hard-surfaced, major east-west traffic artery, with numerous commercial and industrial establishments in the area. There is a paved shoulder to the highway approximately six feet in width and beyond an additional area covered with shell. The posted speed limit at the time of the accident was forty-five miles per hour. The defendant was proceeding eastward.

Just prior to the accident the plaintiff’s daughter, Jo Lynn Young (fourteen years, two months and five days old), and her companion, Joan Turner (eleven years of age), were standing on the paved shoulder of the south side of the highway preparing to cross to the other side. There is testimony that at some point in time they were holding hands, with Joan standing to the left of Jo Lynn nearest the eastbound traffic. As the defendant approached, Jo Lynn proceeded to cross the highway and, becoming aware of the oncoming vehicle, then attempted to retreat from the road surface. She was struck by or came into contact with the side of the right front fender of defendant’s vehicle just above the wheel area. The impact occurred in defendant’s eastbound lane and resulted in injuries to Jo Lynn’s left knee.

The state trooper investigating the accident determined that the defendant vehicle left approximately sixty-five feet of skid marks. He could not, however, say whether they were from the front or rear wheels. The automobile came to a stop approximately ten feet past the point of collision.

The trial judge gave oral reasons for judgment at the conclusion of the trial on April 3, 1979. He made various factual determinations and we find they are supported by the evidence. He concluded that at the time of the accident there was traffic in the area; it was between daylight and dark but there was enough daylight for one to see for some distance; and, the defendant was some sixty to ninety feet from Jo Lynn when she entered the highway. He further found the defendant “was traveling at a speed of forty miles per hour, maybe a little more or maybe a little less.” He also found Jo Lynn’s movement into the lane of traffic was, according to most of the witnesses, a little bit faster than a walk and she entered the highway from a position estimated at four or five feet off the highway. He determined that Jo Lynn proceeded eight to ten'feet into the highway before she was struck by defendant’s automobile. And, the trial judge found the defendant saw the two persons alongside the highway for a distance of some six hundred feet and never slowed his automobile until such time as he actually saw Jo Lynn enter the highway.

Most significantly, the trial judge stated: “The court finds that a close observation of these two people which the defendant alleges that he had, should have indicated and would have indicated to him, despite the fact that these young girls are presently today somewhat mature in size, the injured child being somewhat slender but still fairly tall; but any observation of these two young girls would have indicated to the driver of the approaching car that they were children at least when he got within a hundred feet or so of these children.”

From the foregoing facts, the trial court held:

1. “. . . the automobile was traveling at such a speed that it was unsafe for this child to run into the highway at the time she did.”
2. “Were it not for the Baumgartner case, the court would have to find that this child, who was of an age at the time, being fourteen years of age, would have been guilty of negligence in going into the highway.”
3. . . had this driver paid as close attention as the law requires him to pay of pedestrians, he would have seen these fourteen and eleven year old girls alongside the highway and would have further slowed his speed.”
4. . . the jurisprudence of this state requires of an automobile driver that he pay close attention to pedestrians alongside the highway.”
5. “. . .if pedestrians were held to be negligent, that this little girl was grossly negligent in running into this highway in the front of this oncoming automobile.”
6. . the court holds that the defendant was negligent in driving at this speed having hád these children under observation for as long a period of time as he did.”

Defendants-appellants argue that Louisiana has adopted two separate standards which our courts apply to motorist-pedestrian cases, depending upon whether the pedestrians are adults or children of tender years. It is contended that this is true regardless of the recent decision in Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978). The suggestion is made that the trial court erred in finding the defendant-driver negligent based upon either of the applicable standards and the position is taken that it is unclear from the oral reasons given which of the two standards the trial court did apply.

We agree that the standard of care required of a motorist as regards a pedestrian depends upon whether the pedestrian is a child or an adult. The application of the proper standard is dependent upon what the motorist may reasonably be expected to see and comprehend as he approaches the pedestrian. Whether the motorist exercised the care required under the circumstances addresses the question of the motorist’s negligence.

Baumgartner, supra, directs its inquiry to the proposition of whether a pedestrian, as a matter of law, may be guilty of contributory negligence and whether the doctrine of last clear chance has applicability in absolving a motorist of liability when he negligently strikes a pedestrian. These questions are answered in the negative and while so doing, Baumgartner makes it clear that a motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault. Cf. Dufrene v. Dixie Auto Ins. Co., 373 So.2d 162 (La.1979).

We think the trial court’s reference to Baumgartner in this case was within the context of holding that while Jo Lynn Young was actually negligent in attempting to cross the highway in front of the oncoming vehicle, her negligence cannot be used as a defense by the defendant-motorist.- We agree that Baumgartner abolishes the defense of contributory negligence in suits by pedestrians against motorists for injuries. In such cases the court’s attention must be focused upon the negligence vel non of the driver. See Osby v. Harris, 375 So.2d 181 (La.App. 2d Cir. 1979). We do not think it was the intention of the trial court by citing Baumgartner to hold or imply the standard of care owed Jo Lynn Young by the defendant was that owed to an adult pedestrian. Admittedly, Baumgartner involved an adult pedestrian but it is quite clear from a reading of the reasons for judgment that the trial court concluded Jo Lynn Young was of an age and size mandating the imposition upon the defendant of the standard of care owed a child.

A review of cases dealing with child pedestrians of various ages demonstrates the younger the child the greater the inclination of the courts to increase the burden of care placed upon the driver. Also, while it is true the courts have held in many cases children of tender ages cannot be guilty of contributory negligence, in view of Baumgartner we no longer need concern ourselves with determining if the child is of an age to possess the reasoning to account for its actions. Baumgartner, having established the contributory negligence of an adult pedestrian cannot be interposed against the liability of the motorist, certainly includes within its ambit the same protection for a child, regardless of the child’s age.

In this case the trial court went to great lengths in answering the difficult question of whether Jo Lynn Young, for purposes of applying the correct standard of care owed by the defendant, should be treated as an adult or as a child. Both Jo Lynn and her companion were weighed and measured at the direction of the court and allowances were made for the fact two years had elapsed from the time of the accident to the trial during which normal growth might be expected. Based upon this and other evidence, the court made its determination that “. . . any observation of these two young girls would have indicated to the driver of the approaching car that they were children, at least when he got within a hundred feet or so of these children.” We cannot disturb this finding of fact unless it is clearly wrong. A careful review of the entire record does not demonstrate the finding to be clearly wrong (manifestly erroneous). Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Turning now to the standard of care owed by the defendant and whether his actions equate to a failure to adhere to that standard, *e note the following guidelines:

“The jurisprudence of this state places a high degree of care upon a motorist who sees the presence of young children near the road . . . and imposes upon him the duty to anticipate that the child might act suddenly, unpredictably and often foolish . . . .” LaCroix v. Middle South Services, Inc., 345 So.2d 136 (La.App. 1st Cir. 1977).

See also, Sanders v. English, 325 So.2d 692 (La.App. 1st Cir. 1976); Duraso v. Barbo, 215 So.2d 908 (La.App. 1st Cir. 1968).

The trial court obviously based its decision upon the above standard of care, and we find this to be correct. In so doing, the court necessarily rejected the standard of care applicable to adult pedestrians. It provides that when a motorist sees a mature adult pedestrian, apparently in full possession of his or her faculties, in a position of safety, the motorist can assume that such a pedestrian will not leave this position of safety, and the motorist can rely on this presumption until some unusual action on the part of the pedestrian indicates to the driver otherwise. Gauthreaux v. Edrington, 220 So.2d 138 (La.App. 1st Cir. 1969).

The trial court found the defendant negligent in this case because of his failure to pay close attention to the children and his failure to reduce his speed upon approaching the children. These elements of negligence were correlated with the conclusion that when the defendant was within a hundred feet or so of the pedestrians, he could have observed they were children. In addition to the trial court’s findings, we note that the defendant did not attempt to gain the attention of the children as he approached them by blowing his horn nor did he prepare to brake until Jo Lynn proceeded into the highway.

Considering the very high degree of care imposed upon a motorist who sees or should see the presence of children near the road and who, accordingly, has a duty to anticipate a sudden, foolish act by one of them, we think the trial court properly assessed negligence on the part of the defendant. The defendant did not exercise all reasonable care to protect this young pedestrian and is, therefore, at fault. Baumgartner, supra.

We have considered the plaintiff’s request for an increase in the amount awarded. After reviewing in detail the nature of the injuries received, the surgery performed, the length of hospitalization, the therapy administered, the short duration of recovery and the minimal residual disability, we conclude that the trial judge has not abused the “much discretion” vested in him by Civil Code Article 1934(3). We cannot, therefore, disturb the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

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

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Richard GULLETTE v. STATE of Louisiana, THROUGH the DEPARTMENT OF CORRECTIONS et al.
    No. 13133.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Garic Barranger, Jeffery Schoen, Coving-ton, for plaintiff-appellant Richard Gul-lette.
    William J. Guste, Jr., Atty. Gen., Archie Perry, Staff Atty., Baton Rouge, for defendants-appellees State of Louisiana, through Department of Corrections, et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

Plaintiff, an inmate at Louisiana State Penitentiary at Angola, seeks damages from the State of Louisiana through the Department of Corrections for inadequate medical treatment which he alleges eventually led to amputation of the lower half of his right leg. Plaintiff also sues for damages allegedly caused when he was stabbed by a security officer at the prison hospital following the amputation.

The defendants are the State through the Department of Corrections; Elayn Hunt', individually and as director of the Department of Corrections; Murray Henderson, individually and as chief warden of the state penitentiary at Angola; Dr. Harry Katz, the physician at Angola who originally treated plaintiff upon his entrance into the prison; one security officer Juneau, who allegedly stabbed plaintiff; and two other defendants who are not pertinent to the issues presented on this appeal.

The trial judge awarded plaintiff $2,000.00 for the stab wound incurred when security officer Juneau stabbed the plaintiff at the prison hospital. However, the trial judge refused to award plaintiff any monetary damages for inadequate medical care because the trial judge found, after hearing the testimony of Dr. Chris Cenac (who performed the amputation), that the amputation should have occurred regardless of the treatment given to the plaintiff at Angola.

Plaintiff was admitted to Angola on May 10,1974, after serving a part of his sentence at the parish prison in Orleans Parish. Somewhere in the mid to late 60’s, prior to his entrance into the prison system of this state, plaintiff was the victim of a stab wound to the lower spinal area, which resulted in plaintiff losing much of the sensation in his right leg. The nature of the stab wound was such that plaintiff had to constantly be on guard for development of trophic ulcers on his right leg and foot. In fact, prior to his entry to Angola, plaintiff had to have his right toe amputated because of the nerve damage that occurred as a result of the stabbing incident.

The testimony indicates that plaintiff developed a trophic ulcer at parish prison in Orleans but that the ulcer had healed to some extent immediately prior to his entry into Angola. When he arrived at Angola, he immediately requested medical attention but was not seen by a doctor until two days later. The plaintiff claims that Dr. Katz, the doctor who saw him at Angola, refused to administer antibiotics for the ulcer and that Dr. Katz’s refusal to do so was what eventually led to the amputation. Dr. Katz testified that, in his professional judgment, the administration of antibiotics to plaintiff was not necessary at the time he saw plaintiff initially. Dr. Katz referred the plaintiff to the general surgeons at Angola, who a few days later referred plaintiff to the orthopedic surgeon. The ulcer grew progressively worse and on May 30,1974, twenty days after his admission to Angola, plaintiff was admitted to Earl K. Long Hospital in Baton Rouge. He was placed under supervision at Earl K. Long for a couple of weeks while various tests were conducted and antibiotics were administered. On June 21, 1974, upon the strong recommendation of Dr. Cenac and other physicians at Earl K. Long, plaintiff agreed to have his leg amputated and the amputation was performed. This suit eventually followed.

The standard of care administered to plaintiff at Angola would have been a major factor in this case had it not been for the testimony of Dr. Cenac, whose deposition was taken after the trial. Dr. Cenac testified in unequivocal terms that the treatment or lack of treatment at Angola had nothing to do with his recommendation to amputate the plaintiff’s leg below the knee. Dr. Cenac testified that the main reason the plaintiff’s lower leg was removed was because of the stab wound, in the late ’60’s, that lacerated the plaintiff’s sciatic nerve. He said that the fastest, most economical, most successful and most rapid return to a normal function in this type of patient was a below-the-knee amputation and a prosthesis. “That decision was made by me and would be made by any orthopedic surgeon trained in prosthetics,” Dr. Cenac testified. “If I would have seen this individual at Charity Hospital in New Orleans before he got to Angola, I would have recommended amputation. I am surprised that he got this far.” Dr. Cenac said he would have recommended an amputation whether it was 1972 or 1974, based upon the past medical history of the plaintiff and based upon the doctor’s medical training.

The testimony of Dr. Cenac erases any causative connective between the treatment at Angola and the amputation- at Earl K. Long Hospital. Even if we were to find that the treatment at Angola was below the standard of care required of the state at the prison institution, we cannot award the plaintiff the damages he seeks in this case. This is so because the treatment at Angola was not the cause in fact of the amputation of plaintiff’s lower right leg. We are of the opinion the trial judge reached the correct decision in this matter.

As to the stab wound at the hands of a prison guard, the trial judge was manifestly correct in awarding plaintiff $2,000.00 for this injury. The uncontradict-ed testimony of plaintiff and other witnesses shows that the guard, without provocation, stabbed the plaintiff in the leg when the plaintiff refused to give him a cigarette.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Dale GAUDET, Ind., etc., et al. v. G. D. C., INC., et al.
    No. 13136.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Michael Harson, James J. Adams, Lafayette, of counsel, for plaintiffs-appellants Dale Gaudet, Ind., Etc., et al.
    Michael V. Clegg, J. Glenn Dupree, Baton Rouge, of counsel, for defendant-appellee G. D. C., Inc.
    Calvin G. Norwood, Jr., New Orleans, of counsel, for defendant-appellee Chrysler Corp.
    Paul H. Spaht, Baton Rouge, of counsel, for defendant-appellee Albert Switzer & Associates, Inc.
    W. S. McKenzie, Baton Rouge, of counsel, for defendant-appellee American Concrete Company.
    Frank J. Gremillion, Baton Rouge, of counsel, for defendant-appellee City of Baton Rouge & Parish of East Baton Rouge.
    James E. Moore, Baton Rouge, of counsel, for defendant-appellee Dixie Electric Membership, Corp.
    William N. Faller, Calvin ,E. Hardin, Jr., Baton Rouge, of counsel, for defendant-ap-pellee American Motorists Insurance Co.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is an appeal by the plaintiff, Dale Gaudet, individually and as natural tutor of his minor son, Glenn Gaudet, from a judgment in favor of defendant, American Motorists Insurance Company, maintaining defendant’s peremptory exceptions of no cause and right of action. We affirm.

This suit arises out of an action for damages, for crippling personal injuries resulting from a one-vehicular collision with a street-light standard, brought by Dale Gau-det, individually and in his capacity of administrator and natural tutor of the estate of his minor son, Glenn Gaudet, against multiple defendants, including the defendant insurer (designated as Kemper Insurance Companies in the original petition). The basis for the action against the defendant insurer is specifically set out in paragraphs XXVIII-XXX, as follows:

“XXVIII.
“That defendant, Kemper Insurance .Companies, had issued a policy of automobile liability insurance covering the vehicle involved in this accident, which was in full force and effect at all times pertinent to this litigation.
“XXIX.
“That under the said policy, Kemper Insurance Companies did obligate itself to pay on behalf of any authorized person operating the said automobile any and all damages sustained by third parties resulting from the negligent operation, maintenance, or use of the insured vehicle.
“XXX.
“That in the alternative and in the event that it is found that Glenn Gaudet was guilty of any negligence which would constitute the proximate cause of the accident made the basis of this litigation, which is at all times expressly denied, then it is alleged that Kemper Insurance Companies would be liable to Dale Gau-det, Individually, for any and all damages sustained by him resulting from the accident involved in this litigation.”

The foregoing is primarily an alternative demand by Dale Gaudet individually that in the event Glenn Gaudet should be found negligent in causing the accident, Dale Gau-det, as Glenn’s father, should collect his own personal monetary expenses, i. e., medical expenses incurred in the treatment of Glenn, from the liability insurance carrier on the automobile which was operated by the son at the time of the accident. The petition does not allege any specific acts of negligence on the part of Glenn Gaudet, upon which the demand against the appel-lee depends, but affirmatively avers that Glenn Gaudet was in no way negligent.

The question presented is whether a parent may recover medical expenses incurred as a result of injury to his minor child residing with him when the injury is caused solely by the fault of the minor child. We hold that such a parent may not recover medical expenses.

In LaHitte v. Acme Refrigeration Supplies, Inc., 192 So.2d 172 (La.App. 4 Cir. 1966), writ refused, 250 La. 99, 194 So.2d 98 (1967), the Court denied recovery to a husband (co-plaintiff) for special damages for medical expenses incurred by him as a result of his wife’s injuries which were caused by the negligence of his minor son, the driver of the father’s car, in a suit against the other vehicle’s owner and insurer. The Court held that the son’s negligence was imputed to the father so that his recovery was barred.

In Fontenot v. Pan American Fire & Casualty Company, 209 So.2d 105 (La.App. 3 Cir. 1968), writ refused 252 La. 460, 211 So.2d 328 (1968), the Court imputed the negligence of this minor child to the father and barred his recovery individually for special damages, i. e., medical expenses, for both of his children (one of which was the driver) who were injured in the accident which was caused by the combined negligence of both drivers of the vehicles involved. See also Glass v. Toye Brothers Yellow Cab Company, 160 So.2d 329 (La.App. 4 Cir. 1964).

We believe the rationale of the Fontenot case is dispositive of the instant case. The plaintiff herein can not recover because the negligence of the son, (presumed for purposes of this exception) is imputed to thé father. The negligent operation of the automobile, which caused the injury to the minor child, precludes the father from recovering the expenses which, as a parent of the child, he was under a legal obligation to incur in the son’s treatment.

Even under the duty-risk theory, the duty of the son to operate the automobile in a non-negligent manner does not extend to the risk that the father would be obligated to pay the son’s medical bills which were incurred as a result of the negligent operation. See Olinde v. American Employers Insurance Company, 376 So.2d 1027 (La.App. 1 Cir. 1979).

The case of Deshotel v. Travelers Indemnity Company, 257 La. 567, 243 So.2d 259 (1971), relied upon by appellant, is distinguishable. There the father sued his liability insurer for personal injuries he sustained in an accident while riding in a car owned by him and driven by his minor son. The accident was caused by the negligent driving of the son.

This situation is also distinguishable from the one in Bennett v. Employers Liability Assurance Corporation, 238 So.2d 206 (La.App. 1 Cir. 1970), affirmed, 257 La. 575, 243 So.2d 262 (1971), where the father, injured as a passenger in a vehicle negligently operated by the minor child, was not precluded from recovering for his own personal damages against the minor child’s insurer.

Accordingly, we affirm the judgment of the trial court maintaining the peremptory exceptions of American Motorists Insurance Company at appellant’s costs.

AFFIRMED.

      . The demand of Dale Gaudet, in his individual capacity and as administrator and natural tutor for the benefit of his son,- Glenn, is against a number of defendants, including the owner-developer of the subdivision where the alleged accident occurred (G.D.C., Inc.), the engineers of the subdivision (Albert Switzer and Associates, Inc.), the manufacturer of the automobile involved (Chrysler Motor Corporation), the seller of the automobile (Standard Motor Car Company), the governmental authority which accepted the dedication of the roadway involved (City/Parish Governmental Agency), the utility company charged with placing the particular light standard involved (Dixie Electric Membership Corporation), the company which manufactured the light standard (American Concrete Company), and the appellee herein. The owner of the automobile (Gambles C & M Leasing Company) and the lessee of the automobile (Avon Products, Inc.) were not sued, although were referred to in the petition.


author: ELLIS, Judge:

text:
    CONSTRUCTION MATERIALS, INC. v. AMERICAN FIDELITY FIRE INSURANCE COMPANY.
    No. 13082.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.

      Andre C. Broussard, Baton Rouge, for plaintiff-appellee Construction Materials, Inc.
    Paul H. Spaht, Baton Rouge, for defendant-appellant American Fidelity Fire Insurance Co.
    James F. Abadie, Baton Rouge, for defendant-appellee Gatlin Construction Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit by Construction Materials, Inc. for the price of materials sold to Gatlin Construction Company, a highway contractor, which was constructing certain drainage structures in West Feliciana Parish under contract with the State of Louisiana. Defendants herein are Gatlin and American Fidelity Fire Insurance Company, the surety on the contract. After trial on the merits, judgment was rendered in favor of plaintiff and against both defendants, in solido, as prayed for. American has appealed.

The case was tried on the following stipulation of fact:

“Plaintiff, Construction Materials, Inc. and defendant, American Fidelity Fire Insurance Company, do hereby stipulate as follows:
“A. That the materials at issue in the captioned suit are signs, barricades, and component parts thereof (lens, bulbs, batteries, lights, etc.) purchased by Gatlin Construction Company from the plaintiff and used by said contractor during the performance of its contract with State of Louisiana, Department of Highways, which project was more particularly designated as ‘Construction of West Felicia-na Parish Roads, (culverts), West Felicia-na Parish, Louisiana, State Project No. 713-39-37, Federal Aid Project No. OS-0163(001).
“B. That while the aforesaid materials were used as signs and barricades during the performance of the contract by Gatlin Construction Company on the above mentioned project, the materials were not physically incorporated into the work, but could be carried away from and used on other jobs.
“C. Some of the batteries purchased by Gatlin Construction Company from plaintiff, which batteries were used to furnish electrical power to the signs and barricades involved herein, were depleted during this job.”

The performance bond, which is in evidence, obligates the surety, in the event of the default of Gatlin, to “pay all bills for materials and labor entered into the construction of said work, or used in the course of the performance of the wprk; . . . .”

Despite the broad language of the bond, American contends that it is not liable to plaintiff because its liability cannot be extended beyond that provided for by the law governing public contracts. R.S. 38:2241 and 2242 provide:

“§ 2241. Written contract and bond
“Whenever the state or any state board or agency or any political subdivision of the state enters into a contract in excess of one thousand dollars for the construction, alteration, or repair of any public works, the official representative of the governing authority shall reduce the contract to writing and have it signed .by the parties. He shall require of the contractor a bond, with good, solvent, and sufficient surety in a sum not less than fifty percent of the contract price for the faithful performance of the contract with an additional obligation for the payment by the contractor or subcontractor for all work done, labor performed, or material or supplies furnished for the construction, alteration, or repair of any public works, or for transportation and delivery of such materials or supplies to the site of the job by a for hire carrier, or for furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works. No modification, omissions, additions in or to the terms of the contract, in the plans or specifications or in the manner and mode of payment shall in any manner affect the obligation of the surety. The bond shall be executed by the contractor with surety or sureties approved by the officials representing the state, state board or agency, or political subdivision and shall be recorded with the contract in the office of the recorder of mortgages in the parish where the work is to be done not later than thirty days after the work has begun.”
“§ 2242. Filing of sworn statements of amounts due; payment by contracting authority
“Any person to whom money is due for doing work, performing labor, or furnishing materials or supplies for the construction, alteration or repair of any public works, or furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works, excluding persons to whom money is due for the lease or rental of movable property, but including any architect employed by the owner or his duly authorized agent or representative or engaged by the contractor or subcontractor and including any consulting engineer employed by the owner or his duly authorized agent or representative or engaged by tl^e contractor or subcontractor in connection with the building of any public work, may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done. After the filing and recordation of claims, any payment made by the governing authority without deducting the amount of the claims so served on it shall make the authority liable for the amount of the claim. If an architect or engineer has not been employed by the contractor or subcontractor he shall have no claim to or privilege on the funds due the contractor or subcontractor, nor shall such architect or engineer be within the coverage of the payment and performance bond required of the contractor by R.S. 38:2241.”

It is settled that only materials which are actually incorporated into or consumed during the construction of the public work are entitled to the protection of R.S. 38:2241 and 2242, supra. Slagle-Johnson Lumber Co. v. Landis Construction Company, Inc., 379 So.2d 479 (La.1980). The materials delivered in this case, which were, not incorporated in the public work, would not be entitled to the protection of those statutes.

However, plaintiff contends, and the lower court held, that under the broader language of the bond, there is a right to recover the amounts due for the said materials from the surety on the bond.

Our courts have consistently held that a public works bond can be neither broader nor narrower than the law which provides for it; that anything provided for by law and omitted from the bond must be read into it; and that anything provided by the bond which goes beyond the provisions of the law must be read out of it. Long Bell Lumber Co. v. S. D. Carr Const. Co., 172 La. 182, 133 So. 438 (1931); Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545 (1941); Martinolich v. Albert, 143 So.2d 745 (La.App. 1st Cir. 1962).

The result reached by the trial judge is contrary to the foregoing authorities, and other cases on the same points, which have remained consistent for over 50 years. Only in the recent case of E. L. Burns Co., Inc. v. Cashio, 302 So.2d 297 (La.1974), has the Supreme Court questioned the rule of strict construction applied to public works bonds, and then with reference to the prescriptive period contained herein.

Although we see little merit in a rule of law which permits a surety to evade the conditions of its own bond, which it has written, and for which it has charged a premium, we think the point involved is now too well settled to admit of dispute at this level.

The judgment appealed from is therefore reversed and there will be judgment in favor of defendant, dismissing plaintiff’s suit at its cost.

REVERSED AND RENDERED.


text:
    Mrs. Nora ARINDER et al. v. PROFESSIONALS’ TRANSPORTATION COMPANY, INC. et al.
    No. 13112.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Roy J. Di Vincenti, III, New Orleans, for plaintiff.

      Michael J. Paudua, Jr., Richard W. Brown, Bogalusa, for defendants.
    C. Scott Carter, New Orleans, Earl G. Pitre, Metairie, for third party defendants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit for workmen’s compensation benefits for the death of her husband, Charles Arinder, brought by Nora Arinder, for herself and on behalf of her two minor children. Made defendants are Professionals’ Transportation Co., Inc., Mr. Arinder’s employer; Joe N. Miles and Sons, Inc., with which Professionals’ had a hauling contract; ■ and United States Fidelity and Guaranty Company, Miles’ workmen’s compensation insurer.

Thereafter, Professionals’ third partied Hartford Accident & Indemnity Company, Lawrence County Insurance & Realty Company, Inc., Jasper C. (Jack) Jones, and St. Paul Fire and Marine Insurance Company, alleging that it was insured by Hartford or that such insurance should have been furnished by Lawrence or Jones, as insurance agents for Professionals’. St. Paul is alleged to be the errors and omissions insurer of Lawrence and Jones.

Lawrence, Jones and St. Paul filed various exceptions to the third party petition, all of which were overruled. Miles and U. S. F. & G. filed a third party demand against both Professionals’ and Hartford, seeking indemnification in the event they are found liable herein.

Finally, Hartford filed a third party demand against Lawrence County, Jones and St. Paul, seeking indemnification. The same exceptions were filed by those third party defendants, all of which were overruled.

After trial on the merits, judgment was rendered in favor of plaintiffs against Professionals’, Miles and U. S. F. & G. for workmen’s compensation death benefits, penalties, attorneys’ fees, and funeral expenses. There was also judgment in favor of Miles and U. S. F. & G. on their third party demand against Professionals’ for full indemnity. All other third party demands were dismissed.

Professionals’ has appealed, alleging as error the dismissal of its third party demand against Hartford, Lawrence County, Jones and St. Paul. Miles and U. S. F. & G. have appealed, alleging' as error the dismissal of its third party demand against Hartford.

The circumstances surrounding the third party demands arise out of Professionals’ efforts to obtain workmen’s compensation insurance. Professionals’ entered into a contract with Miles, dated April 2, 1975, by virtue of which Professionals’ was to haul various products from Miles’ mill to designated destinations. Under the terms of the contract, Professionals’ was required to maintain in effect a policy of workmen’s compensation insurance. Apparently while the contract was being negotiated, Professionals’ asked Mr. Jones to get a quotation on the said insurance. Mr. Jones obtained such a quotation from Hartford on February 20, 1975. At that time, Mr. Jones advised Hartford that the anticipated date of the contract was May 1, 1975, and that he would let Hartford know when to issue the policy.

Mr. Jones heard nothing further from Professionals’ until August 6,1975, when he was advised' that the workmen’s compensation insurance should be obtained. Mr. Jones called Hartford for the insurance, and was advised that the first quotation was no longer valid and that the file would have to be reviewed to see if it was acceptable. Mr. Jones attempted to advise Mr. Crain at Professionals’, but was unable to get in touch with him. It was then about 5:00 or 5:15 on the afternoon of August 6th and Professionals’ office was probably closed. Mr. Jones attempted to get Mr. Crain’s home phone, but the number was not listed. On the morning of August 7th, Mr. Jones again tried to get in touch with Mr. Crain, who was out of the office, and who did not call back Mr. Jones.

Also on August 7th, Hartford decided to decline the coverage, and mailed a memo to that effect to Mr. Jones, who received it on August 8th. In the meanwhile, on the af-temoon of August 7th, Mr. Arinder was killed in the course and scope of his employment. On the morning of August 8th, Mr. Jones got in touch with Mr. Crain and told him that Hartford had declined the coverage. Mr. Jones denied that he had told Professionals’ or Mr. Crain that workmen’s compensation coverage was in force.

In Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973), the court said:

“An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage.”

The trial judge found that the quotation made by Hartford in February was in the nature of an offer, which had no deadline, and which, therefore, remained outstanding for a reasonable period of time. He further found that, because of changes in the business activities of the insurance industry, by August 6th the offer had been withdrawn by operation of law, due to the passage of time.

In his oral reasons, the trial judge said:

“The Court further finds that on August 6, 1975, Mr. Jones did not issue a binder or do anything actually or that would tend to lead Professionals’ Transportation Company to believe that it had insurance coverage on August 6, Í975. Therefore, it is the conclusion of the Court that Hartford' Insurance Company issued no policy, issued no binder, did nothing itself to mislead anyone and has no responsibility in connection with the claims made in this against Lawrence County Insurance Agency. Therefore, all claims against Hartford will be dismissed.
“The Court further finds that there was no negligence on the part of Mr. Jones or Lawrence County Insurance Agency. This turned out to be a tragic situation that so often occurs when business men are engaged in the hectic activity of kicking off a business operation. The Court feels that with the long period of time that had transpired from February, 1975 to August, 1975, Mr. Crain was derelict in his responsibility to his company, rather than Mr. Jones having been derelict in his responsibility either to Hartford or to his client; so consequently, the demands against Mr. Jones, individually, and Lawrence County Insurance Agency, and St. Paul will all be dismissed.”

We find the conclusions of the trial judge to be fully supported by the record and in accordance with law.

The judgment appealed from is therefore affirmed at appellants’ cost.

AFFIRMED.


author: PONDER, J.

text:
    CLARCO PIPELINE COMPANY v. PARISH OF EAST BATON ROUGE et al.
    No. 13085.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.

      Tom F. Phillips, Warren L. Mengis, Baton Rouge, for plaintiff-appellee Clareo Pipeline Company.
    Joseph F. Keogh, James J. Zito, Walter R. Monsour, Jr., Charles Raymond, Baton Rouge, for defendants-appellants Parish of East Baton Rouge and City of Baton Rouge.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, J.

Defendants appealed the judgment directing defendants to issue a permit for the construction of an oil storage tank.

The issues are:

(1) propriety of mandamus
(2) prematurity
(3) right of lessee to rebuild if the lease has been breached
(4) effect of ordinances placing conditions on issuance of the permit.

We reverse.

The City of Baton Rouge leased to plaintiff land on which the latter built an oil storage tank. One clause of the lease read as follows:

“It is hereby understood and agreed by the parties hereto that Lessee will provide those safeguards as is normal, usual and customary in the construction of the type of facilities it expects to construct on the properties herein leased, taking into consideration the fact that the surface area of the property designated ‘B’ in the description above, will be used by agents, employees and/or contractors of the lessor as well as the public, therefore, all plans regarding the installation of said facilities shall be submitted to the Director of the Department of Public Works for the City of Baton Rouge for his written approval prior to the commencement of construction and/or installation.”

Approximately two years after the tank was built and put into operation, it caught fire, damaging homes and other property in the vicinity.

After the plaintiff submitted plans for the reconstruction of the tank, the Director of the Department of Public Works suggested the addition of certain safety specifications and approved the plans. Thereafter, the Parish Council passed Parish Resolution 14984 and the City Council passed City Resolution 8597 which stated that permission for reconstruction shall be denied until:

“(1) Clareo agrees to recompense all claims resulting from said fire or furnishes a letter of intent to settle all legal claims and proves to the satisfaction of the City-Parish Government that said company is acting in good faith; and (2) a permit for such reconstruction is authorized by the City and Parish Councils.”

The Director of the Department of Public Works said he would issue the permit except for the Council resolution. The plaintiff then brought this mandamus action against the City of Baton Rouge, the Parish of East Baton Rouge, the Mayor-President, the individual members of the City and Parish Councils, the Director of the Department of Public Works, and the Building Official for the city and parish requesting the court to order them to discharge their duty and to immediately issue a permit for the construction of a replacement tank on the leased property.

The defendants raised the exceptions of prematurity, unauthorized use of summary procedure, no right and no cause of action. The trial court overruled the exception of unauthorized use of summary procedure prior to the hearing and referred the other exceptions to the merits. After the hearing, the court overruled the exception of prematurity and overruled the exceptions of no right and no cause of action as to the City of Baton Rouge and the Parish of East Baton Rouge but sustained them as to the other defendants.

The trial court also ordered the defendants, through the proper officials, to issue the permit, making the writ of mandamus peremptory.

Mandamus is defined in C.C.P. Art. 3861 as a “. . . writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864.” C.C.P. Art. 3863 states, “A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law . .

Mandamus will lie to compel performance only when there is no element of discretion left and the act is purely ministerial. Houeye v. St. Helena Parish School Board, 213 La. 807, 35 So.2d 739 (La.1948), Mares v. La. Wild Life and Fisheries Comn., 236 So.2d 650 (4th Cir. 1970).

Plaintiff has never filed an application with the building official who is authorized under the Code of Ordinances to issue permits. As a matter of fact, a final set of plans incorporating all suggested changes has not been submitted to the Director.

We cannot agree that it would be useless to satisfy the formal requirements of the law for submission of an application and a complete set of plans. If the City is to fulfill its duties of inspection and approval of the construction, these documents are a necessity. The requirement is more than one of form: it is one of substance. We further note that the Director testified that he would have to have the complete plans before he could order a permit to issue.

Plaintiff argues that under the terms of the lease, plans are to be submitted to the Director of the Department of Public Works for approval. We doubt that the terms of a lease could supersede an ordinance. Furthermore, we believe that the lease dealt only with the relationship between lessor and lessee not that of municipality and a citizen.

The surface area of the adjacent lands were to be used by agents, employees and contractors of the lessee and by the general public, therefore all plans had to be submitted to the Director of the Department of Public Works prior to commencement of construction. This language is interpreted by the court to mean that the Director was acting as an agent for the lessor to assure the safety of agents, employees and contractors of the lessor as well as the general public. It did not negate the need for an application to be made to the building official.

Appellee argues that the application to the building official is a vain and useless requirement since the Director, the supervisor of the building official, has approved, the plans. Further, they state that the permit was not required in the first construction. As we read the ordinance, the application to the building official is required. It may be pro-forma in view of the Director’s prior approval but the permit is required. That the requirement was overlooked in the prior construction does not obviate the necessity. One error does not require a second.

Plaintiff argues that an application would have been fruitless after the resolution was passed by the City and Parish Councils. We cannot presume that in order to make mandamus applicable.

Perhaps the same decision can also be reached by employing the concept of prematurity. At the very least, the proper forms submitted to the proper official is prerequisite to resort to a writ of mandamus.

Appellants have contended that a mandamus should not issue to a lessor to require it to approve reconstruction when the lessee has breached the lease. Appellants themselves are now merging the statuses of lessor and municipality. In the first place there is no action for rescission and only the appellants’ contention that the lease was breached. Furthermore, we find insufficient proof of any breach.

While we entertain considerable doubt as to the validity of the resolutions placing conditions upon the issuance of a permit, our decision obviates the necessity of a holding thereon.

We find that the writ of mandamus was improperly issued. The judgment of the trial court is reversed at appellee’s costs.

REVERSED.

      . Code of Ordinance Title 5, l:5(b), in pertinent part states:
      “The building official shall have the power and duty to enforce all of the provisions of this title; shall have general supervisory authority over the administration and enforcement of all building codes and ordinances; and shall coor-díñate the administration and enforcement of all such ordinances to insure that all provisions thereof are fully complied with before the issuance of necessary certificates of occupancy; all permits shall be issued by him and he shall collect all fees provided herein, and transmit the same to the director of finance.”

      . Summerell v. Phillips, 282 So.2d 450 (La. 1973).


author: STOKER, Judge.

text:
    Leroy HARPER, Plaintiff-Appellant, v. Ray Preston WILLIS, Defendant-Appellee.
    No. 7494.
    Court of Appeal of Louisiana, Third Circuit.
    March 25, 1980.
    Rehearing Denied May 29, 1980.

      Gravel, Roy & Burnes, Robert L. Royer, Alexandria, for plaintiff-appellant.
    Walter M. Hunter, Jr., Alexandria, for defendant-appellee.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This is a possessory action. It was dismissed in the trial court on a motion for summary judgment brought by the defendant-appellee, Ray Preston Willis. Plaintiff, Leroy Harper, seeks to be maintained in the possession of immovable property consisting of a rectangular tract of open land measuring 323.6 feet by 435.6 feet. The plaintiff asserts he “possessed” the land by grazing his cattle on it and doing certain other acts upon the land. Plaintiff alleges he has been disturbed in his possession by the rec-ordation of a document which purports to convey the property to defendant Willis. The motion for summary judgment, and the judgment granting it, are based solely on a deposition given by plaintiff.

In our opinion the sole issue in this matter is whether plaintiff ever had the intent to acquire possession as required by Article 3436 of the Louisiana Civil Code. That article reads:

Art. 3436. Essentials of possession
Art. 3436. To be able to acquire possession of property, two distinct things are requisite:
1. The intention of possessing as owner.
2. The corporeal possession of the thing.

For the purpose of determining whether the trial court was justified in dismissing the possessory action, we may assume that plaintiff could establish the corporeal possession of the land in question — requisite number two of LSA-C.C. art. 3436 quoted above. We may so assume because, even if plaintiff can establish that required element of the article, he gave testimony in his deposition in which he specifically negatived any “intention of possessing as owner”. The concept of “possessing as owner” is the crux of this case and will be discussed later in this opinion.

In order to better follow the principles to be discussed it is appropriate here to set forth briefly certain facts related by plaintiff-appellant, Leroy Harper, in his deposition. It appears that the property in question is part of what was created several decades ago as the Old Pecan Orchard Subdivision. Tr. 11 & 12. The whole property consisted of two sections of land one mile by iwo miles. Tr. 39 & 40. Apparently the subdivision venture encountered difficulty of some nature, and in the early 30’s some of the lots began to be sold for taxes. Tr. 13. In the beginning a caretaker, a Mr. Crowe, looked after the property. Tr. 11. By 1946 or 1947 the caretaker gave up this job, and the property was left untended. Tr. 16. None of the lot purchasers ever occupied or used the lots acquired by them, and Mr. Crowe did not look after these lots. Tr. 18. Plaintiff-appellant had begun to run cattle on the whole two-section tract in about 1939 and continued thereafter to do so. Tr. 30. At some time, perhaps about 1947, plaintiff-appellant began to acquire lots through tax redemptions, or he acquired an interest with others. Tr. 21, 22 and 29. At some time before Mr. Crowe abandoned his caretaker responsibilities, he gave plaintiff-appellant permission to run his cattle on the land without payment of rent by Harper if Harper would look after the property, keep the fire out and the brush down. Tr. 25-27. Harper testified he took over the property in 1947. Tr. 19. By 1952, plaintiff-appellant had acquired sufficient interest in lots in the subdivision that whatever he did for the whole property he considered to be for his own interests. Tr. 27 & 33. From 1952, some clearing took place year by year. Tr. 25. In 1952, this property was overgrown in thickets. Tr. 24. Through purchases at tax sales and from individuals, plaintiff-appellant continued to acquire lots in the subdivision. Tr. 23. At some time not clear, plaintiff-appellant became interested in the property subject of this law suit. He was interested in purchasing it, but it was sold to defendant-appellee, Willis. Tr. 33-39. The property apparently consists of three lots. Tr. 39. Plaintiff-appellant testified there has never been a fence around the three lots in question, but there was a fence around the entire two sections of land. Tr. 39.

The facts set forth above are taken entirely from the deposition given by plaintiff-appellant on which the motion for summary judgment of defendant-appellee is founded. Mr. Harper never testified that he acquired the property subject of this possessory action by any species of title. The action is strictly a possessory action based upon his alleged possession quietly and without interruption for more than a year prior to the recordation of the conveyance to Willis.

The critical testimony given by Leroy Willis himself which establishes the actual subjective intention of plaintiff-appellant regarding the tract purchased by Willis, beginning on transcript page 33, is as follows:

Q. As to those lots that you have not bought from someone — either by tax sale or otherwise — has it ever been your intention of acquiring ownership of these people’s lots - that you didn’t buy?
A. If I can.
Q. How?
A. Buying them. I’ve never tried to beat anybody out of anything.
Q. Alright. You never tried to just take — take their property did you?
A. No, sir. No.
Q. You never just claimed it as your own without buying it, did you?
A. No.
Q. In fact, you’ve always, right up to this time, tried to buy people out of any of these lots.
A. If they want to sell it.
******
Q. So, the possession that you have had of this property that Mr. Willis has the deed to now, you never have possessed that property as the owner of that property, have you — the lots Mr. Willis has the deed to?
A. No.
Q. Alright. You knew all along you-didn’t own that lot—
A. Yeah.
******
Q. Alright. Well, then, less than a year, but before Mr. Willis bought the property, you did call Mrs. Kuentz and again offer to buy the property from her did you not?
A. Rightl
******
Q. You do admit, though, that you never have contended that you own this property that we’re talking about in this lawsuit.
A. Well, how could I do that?
Q. Well, I want to know what was in your mind. Were you intending to go out and claim this property just by taking it?
A. No, sir. I told you that awhile ago.
Q. Alright, sir. Now, I’d like to show you a copy of a letter, March 7th, 1960, to Mrs. Kuentz which reportedly was written by you and you say you are writing to her in regard to a lot she owned in Elizabeth. If she ever decides to sell her lot, you’d like to buy it. And you go on to say “I will keep the lots in good shape, keep the bushes down, and the fire out so that it will always look good.”
******
Q. That does appear to be your handwriting and your signature, does it not?
A. Yeah.
* * * * * *
Q. Yes. Alright. So, I think you’ve already said that all along, you never contended you owned this property and these letters would verify that, is that correct? Your answer is yes?
A. My answer is yes.
******
Q. Did you ever tell Mrs. Bert or Mrs. Kuentz or anyone else that you were claiming the lots involved in this lawsuit as your lots?
A. No.
Q. That you had somehow laid claim to them?
A. No, sir. I did not.
Q. Alright. And you didn’t tell anyone that because in truth and fact you never had laid claim to their property had you?
A. Right.
******

The foregoing excerpts from plaintiff’s deposition sliow that plaintiff, testifying very candidly, has completely destroyed the foundation for his possessory action. As stated above we have assumed, for the purposes of this appeal, that plaintiff can establish the necessary corporeal possession. We focus on his intent. We find that plaintiff did not have the requisite intent to maintain this possessory action. We affirm the trial court action.

INTENT AS REQUIRED BY CIVIL CODE ARTICLE 3436

We will discuss in some detail the requirement of LSA-C.C. art. 3436 that to “acquire possession of property” one of the “two distinct things [which] are requisite” is “(1) The intention of possessing as owner.” • We are prompted to do so by the suggestion that a possessory action may be maintained without the necessity of possessing as owner. We are also prompted to do so because some question appears to exist as to whether the provisions relating to real actions of the Code of Civil Procedure, particularly articles 3655 through 3660, may conflict with, and govern, to the exclusion of the Civil Code (Article 3436).

At the outset we recognize that a possessor in bad faith may maintain a pos-sessory action. LSA-C.C. arts. 3450, 3452, 3454 and LSA-C.C.P. art. 3660. Article 3660 of the Code of Civil Procedure provides, not only that a bad faith possessor may maintain a possessory action, but “even , a usurper,” may do so. See Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952).

No matter in what quality a person professes to be a possessor, whether in good faith or otherwise, it is clear that the person who asserts that he is a possessor must have had the intention of possessing as owner. The matter is aptly stated in the case of Buckley v. Dumond, 156 So. 784 (La.App. 1st Cir. 1934). A possessory action was brought by Buckley. Plaintiff had title to the area in dispute, but the defendant, Du-mond, had none. Plaintiff prevailed in the possessory action and the Court of Appeal reasoned as follows:

We find that Dumond’s claim to have had possession, as owner, of any part of the land, called for in plaintiff’s title, is not well founded, because in the beginning and all along since then, in entering on the land, he did not have “the intention of possessing as owner,” but hunting and looking after his cattle and hogs ranging thereon was his only purpose in view. Dumond is not to be regarded as an occupant of the land, but as indicating the importance of intent in a matter of taking possession, we refer to the Civil Code, arts. 3412 and 3413. Under these articles, occupancy is not a mode of acquiring the possession, except when it is retained by the acquirer with the intention of keeping it as his own property. And on the subject of possession, the Code, art. 3436, provides that: “To be able to acquire possession of property, two distinct things are requisite: 1. The intention of possessing as owner. 2. The corporeal possession of the thing.” There must be a positive intention to take and commence a possession, as owner, in order that possession, as owner, may be created and commenced.

In typical litigation in which possession is the issue, whether it be a possessory action, a petitory action, or whether it concerns some other question resting on possession, the usual inquiry involves a determination of the subjective intent of the party who claims to be a possessor by reference to objective facts. In Humble v. Dewey, 215 So.2d 378 (La.App. 3rd Cir. 1968), this court stated the proposition as follows in a petito-ry action:

In some cases, we think the intention to possess as- owner may be inferred from the surrounding facts and circumstances. We believe, however, that ordinarily the intent to possess as owner should not be inferred unless the actions of the possessor or the surrounding facts and circumstances are sufficient to reasonably apprise the public, and the record title owner of the property, of the fact that the possessor has the positive intent to possess as owner.

The concept stated in Humble v. Dewey, supra, was recently reiterated in Wm. T. Burton Industries, Inc. v. McDonald, 346 So.2d 1333 (La.App. 3rd Cir. 1977). However, the need to infer intent from facts and circumstances is not present in the case before us. The plaintiff, out of his own mouth, has denied any intent to possess as owner. In his deposition he stated, without any equivocation, that he did not possess as owner.

The cases which consider the facts and circumstances of alleged possession show that the basic inquiry is usually for the purpose of determining intent. A most illustrative case is Thevenet v. Clause, 302 So.2d 649 (La.App. 3rd Cir. 1974), a case from this court in which Judge Culpepper dissented. In a possessory action the The-venets claimed possession of a strip of land 30 by 4,886 feet. Clause and Periou were defendants. Plaintiffs claimed defendants disturbed their possession when the defendants recorded a conveyance of a one-half interest in the strip from Clause to Periou in 1970. Plaintiffs asserted the strip was actually acquired by their ancestors in title from the St. Martin Parish Police Jury in 1900 to be used as a road. Other than verbal testimony, there was no proof that the Police Jury acquired or transferred title to the disputed tract. However, in transactions in plaintiff’s alleged chain of title the rights to the strip were conveyed on down as appurtenances to another tract under the customary transfer of all rights of way, passage and drainage belonging to the tract conveyed.

The majority in Thevenet v. Clause, supra, examined the utilization of the strip over the years and found that it was first used as an access road to the strip conveyed, then successively as a race track for horses, for hauling sugar cane, and as a pasture. The Thevenets granted to the Soil Conservation Service permission to put a ditch along one side of the strip, and they granted oil, gas, and mineral leases over it. The majority concluded that the usage described was consistent with maintenance of the strip as a passageway — a servitude. Hence, plaintiffs did not have the intent to possess the strip as owners.

Judge Culpepper dissented in Thevenet v. Clause, supra, finding that same usages relied upon by the majority indicated an intention to possess as owners. He pointed out, among other things, that the property was fenced, and, after being used as a passageway for years, the strip grew up on bushes and became impassable and was diverted to other uses inconsistent with use as a road or passageway. Therefore, the intention of the Thevenets to possess as owners was manifest.

The dissent of Judge Culpepper contained the following statement of legal principles which are no less valid for being set forth in a dissent:

The applicable law is as follows: LSA-C.C.P. Article 3658 provides in part:
“To maintain the possessory action the possessor must allege and prove that: (1) He had possession of the immovable property or real right at the time the disturbance occurred; (2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud; ...”
LSA-C.C.P. Article 3660 provides in part:
“A person is in possession of immovable property or of a real right, within the intendment of the articles of this chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper.”
Comment (b) under LSA-C.C.P. Article 3660 explains that the term “corporeal possession” is taken from Civil Code Article 3436 and the jurisprudence thereunder. Civil Code Article 3436 states that the requisites of possession are (1) the intention of possessing as owner and (2) the corporeal possession of the thing. In Kilchrist v. Conrad, 191 So.2d 705 (La.App. 3rd Cir. 1966) we stated that the corporeal possession required for the pos-sessory action is the same as that required for the acquisitive prescription of 30 years, citing several cases. Additionally, we stated in Kilchrist that the jurisprudence generally holds corporeal possession to be that which is actual, physical, open, public, unequivocal, continuous, uninterrupted and showing an intent to possess as owner. ■ The area corporeally possessed must be evidenced by some type of visible boundaries such as fences, etc. The possession must be evidence by visible activities or signs sufficient to give notice to the public as to the character and extent of the possession. In Kil-christ, we also stated the rule that the corporeal possession must be of a type for which the particular land is destined or suitable.

As earlier observed, the importance here of Thevenet v. Clause, supra, is the emphasis it focuses on the role of the possessor’s intent in a possessory action.

From the foregoing it is clear that if someone, without legal claim or intention to possess as owner, uses the property in any manner, it is without legal significance or detriment to the true owner.

ARE CIVIL CODE ARTICLE 3436 AND CODE OF CIVIL PROCEDURE ARTICLE 3660 IN CONFLICT?

The discussion above should demonstrate that Article 3436 of the Civil Code and Article 3660 are consistent and not in conflict. As stated by Judge Culpepper in Kilchrist v. Conrad, 191 So.2d 705 (La.App. 3rd Cir. 1966), the law applicable to the possessory action is found in LSA-C.C.P., arts. 3658 and 3660. In pertinent part, Article 3660 (first paragraph) provides as follows:

A person is in possession of immovable property or of a real right, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper.

The Official Comments under that article and Article 3658 state that they make no change in the law. Under Article 3660 the comments specifically tie the first paragraph of Article 3660 to the provisions of Article 3436 of the Civil Code. In pertinent part those provisions read as follows:

Official Revision Comments
(a) This article makes no change in the law, but is a restatement of its indirect sources and is declaratory of the established jurisprudence on the subject.
(b) * * * The first paragraph above accords with the terminology and concepts of the Civil Code and is declaratory of the jurisprudence. See Art. 3436 of the Civil Code; Ellis v. Prevost, 19 La. 251 (1841); Barnes v. Gaines, 5 Rob. 313 (La.1843).

Thus, it was the stated intention of the redactors of the Code of Civil Procedure that Article 3660 accord with the terminology of the Civil Code; Article 3436 of the Civil Code is expressly mentioned immediately following the statement to that effect. The article was also meant to be declaratory of the jurisprudence. Since the adoption of the Code of Civil Procedure in 1960, which became effective January 1,1961, the jurisprudence has continued to apply Civil Code Article 3436 and Code of Civil Procedure Article 3660 in a manner indicating their complete harmony and accord.

CONCLUSION

Buckley v. Dumond, supra, stated: “There must be a positive intention to take and commence a possession, as owner, in order that possession, as owner, may be created and commenced.” LSA-C.C. art. 3436 requires two distinct elements for a person to acquire possession: (1) the intention of possessing as owner and (2) the corporeal possession of the thing. Our jurisprudence usually states that the term “corporeal possession” means the actual, physical, open, public, unequivocal, continuous, and uninterrupted possession of property with the intent of possessing it as owner. Gerrold v. Barnhart, 128 La. 1099, 55 So. 688 (1911); Wm. T. Burton Industries, Inc., v. McDonald, supra, Succession of Kemp v. Robertson, 316 So.2d 919 (La.App. 1st Cir. 1975), writ denied, 320 So.2d 906.

It is well established that the “corporeal possession” required to bring a pos-sessory action is identical to that required for acquisitive prescription of thirty years. LSA-C.C. articles 3499-3505; Hill v. Richey, et al, 221 La. 402, 59 So.2d 434 (La.1952); Johnson v. Merritt, 131 So.2d 562 (La.App. 2nd Cir. 1961); Case v. Jeanerette Lumber & Shingle Company, Inc., 79 So.2d 650 (La.App.1st Cir. 1955); Broussard v. Motty, 174 So.2d 246 (La.App.3rd Cir. 1965); Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975); Norton v. Addie, 337 So.2d 432 (La.1976); Wagley v. Cross, 347 So.2d 859 (La.App.3rd Cir. 1977).

It is clear that the intent to possess as owner has to do with the subjective intent of one who professes to possess and does not mean that the possessor must pretend to have valid title rights. The possessor may actually have title, but in the pos-sessory action that factor is significant only in determining intent. The intent may exist without title to the knowledge of the possessor, for as shown above, even our codes permit a person in bad faith or a usurper to maintain the possessory action. LSA-C.C. arts. 3450, 3452, and 3454 and LSA-C.C.P. art. 3660. Inasmuch as the corporeal possession required as a predicate to a possessory action is the same as that required for acquisitive prescription of 30 years, the corporeal possession must be open and notorious and adverse or hostile to the true owner and everyone else.

In the case before us Mr. Leroy Harper has affirmed in every way possible that he intended no adverse claim to the property in question. While we have assumed that Mr.. Harper could prove corporeal possession (although he may very well not be able to), none of those acts show in themselves a claim of rights to the land hostile to the true owners. Harper makes no pretense of title. He has acknowledged that he does not own the property. He has also acknowledged that his corporeal possession (if such it be), was not with the intention of possessing it as owner.

Perhaps the concept is summed up in certain introductory articles in the Civil Code chapter dealing with possession which precedes Article 3436. We refer to Civil Code articles 3426, 3428, 3430, 3434 and 3435. They read:

Art. 3426. Possession is the detention or enjoyment of a thing, which we hold or exercise by ourselves, or by another who keeps or exercises it in our name.
* * * * * *
Art. 3428. Natural possession is that by which a man detains a thing corporeally, as by occupying a house, cultivating ground, or retaining a movable in possession.
* * * * * *
Art. 3430. Natural possession is also defined to be the corporeal detention of a thing which we possess as belonging to us, without any title to that possession, or with a title which is void.
* * * * Sji ♦ »is
Art. 3434. Since the use of ownership is to have a thing in order to enjoy it and to dispose of it, and that it is only by possession that one can exercise this right, possession is therefore naturally linked to the ownership.
Thus, possession implies a right and a fact; the right to enjoy annexed to the right of ownership, and the fact of the real detention of the thing that is in the hands of the master or of another for him.
•Art. 3435. Although the possession be naturally linked with the ownership, yet-they may subsist separately from each other; for it may happen that the actual possessor is not the true owner.

This case is before us on appeal from the action of the trial court which dismissed plaintiff-appellant’s possessory action on a motion for summary judgment. Among his reasons for judgment the trial court observed: “From a reading of [plaintiff’s] deposition it appears that plaintiff’s case must fail because he does not contend that he possessed as owner . . . ”. We agree with that holding and affirm the judgment of dismissal.

Our assumption, for the purpose of deciding this motion for summary judgment, that plaintiff-appellant, Leroy Harper, could prove corporeal possession, should not be taken as a finding of fact on that question. The assumption was made purely for the purpose of demonstrating that, even with corporeal possession, one may not maintain a possessory action unless he also has the second required element — the intention of possessing as owner.

The costs of this appeal shall be borne by plaintiff-appellant.

AFFIRMED.

      . The property subject of this suit is described in the petition as follows:
      A certain tract of land, together with all improvements thereon, located in Section 8, Township 2 South, Range 4 West, Rapides Parish, Louisiana, being more fully described as commencing at the Northeast corner of Section 8, Township 2 South, Range 4 West, Rapides Parish, Louisiana, thence run North 88 degrees 05 minutes West for 25 feet, thence run South 01 degrees 18 minutes West for 435.6 feet to the point of beginning of the property conveyed herein, thence continue South 01 degrees 18 minutes West for 435.6 feet, thence run North 88 degrees 05 minutes West for 323.6 feet, thence run North 01 degrees 18 minutes East for 435.6 feet, thence run South 88 degrees 05 minutes East for 326.6 feet to the point of beginning.

      . In his brief before this court, plaintiff-appellant sets forth his assignment of ’errors and asserts that the issues are as follows:
      II. ASSIGNMENT OF ERRORS
      The trial court erred in granting the summary judgment as follows:
      A. By holding that plaintiff did not have the requisite “corporeal possession” for maintaining the possessory action.
      B. By holding that plaintiff could not possess the property inasmuch as the property was not enclosed by fence or other enclosures.
      C. By holding that there is no genuine issue as to material fact and that mover was entitled to judgment as a matter of law.

        III. ISSUES

      A.Does keeping the brush cut, using the property as his own, maintaining a cattle grazing operation, keeping the fence repaired, and keeping fires out of rural uninhabited property constitute “corporeal possession” sufficient to maintain a possessory action?
      B. Is property bounded on one side by a well-construed fence and on the other three sides by property owned by a person who maintains a cattle grazing and hay raising operation, and who uses the entire property for those purposes, sufficient to constitute “corporeal possession” which is required to maintain a possessory action?
      C. Is actual, physical, open, public, unequivocal, continuous, uninterrupted possession which shows an intent to possess necessary to institute a possessory action?
      D. Whether or not plaintiff had the necessary possession required by C.C.P. Article 3658 to maintain the possessory action?

      . These articles provide as follows:

        Civil Code

      Art. 3450. Although possession results frequently from a fact, and not from right, it nevertheless confers on the possessor certain •rights with regard to the thing possessed, some of which are peculiar to the possessor in good faith, and the others are common to all possessors.
      ******
      Art. 3452. The possessor in bad faith is he who possesses as master, but who assumes this quality, when he well knows that he has no title to the thing, or that his title is vicious and defective.
      ******
      Art. 3454. Rights common to all possessors
      Rights, which are common to all possessors in good or bad faith, are that:
      1. They are considered provisionally as owners of the thing which they possess, so long as it is not reclaimed by the true owner or. person entitled to reclaim it, and, even after such reclamation, until the right of the person making it is established.
      2. Every person who has possessed an estate for a year, or enjoys peaceably and without interruption a real right, and is disturbed in it, has an action against the disturber, either to be maintained in his possession, or to be restored to it, in case of eviction, whether by force or otherwise.
      3. Such a possessor may, by prescription, acquire the ownership of the thing which he thus possesses, after a certain time, which is established by law according as he has possessed in good or bad faith.
      4. Such a possessor has the right, in case of eviction from the thing reclaimed, to retain it until he is reimbursed the expenses he is entitled to claim. (Amended by Acts 1979, No. 180, § 2, eff. Jan. 1, 1980.)

        Code of Civil Procedure

      Art. 3660. Same; possession
      A person is in possession of immovable property or of a real right, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession. by him or his ancéstors in title, and possesses for himself, whether in good or bad faith, or even as a usurper.
      Subject to the provisions of Articles 3656 and 3664, a person who claims the ownership of immovable property or of a real right possesses through his lessee, through another who occupies the property or enjoys the right under an agreement-with him or his lessee, or through a person who has the use or usufruct thereof to which his right of ownership is subject.

      . See for example Ryder v. LaCour, 322 So.2d 243 (La.App. 3rd Cir. 1975), writ refused, 325 So.2d 274 (La.1976).

      . A case note at 49 Tul.L.Rev. 1173 (1975) discusses the matter of intent to possess as owner in a review of the Thevenet case and in references to Humble v. Dewey, supra. An illuminating discussion of the role of intent is contained in Planiol, Civil Law Treatise (Louisiana Law Institute), Volume 1, Part 2, under “Property” in the chapter, “Of Possession,” particularly Sections 2267 and 2268.

      . LSA-C.C.P. art. 3658 provides as follows:
      To maintain the possessory action the possessor must allege and prove that:
      (1) He had possession of the immovable property or real right at the time the disturbance occurred;
      (2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
      (3) The disturbance was one in fact or in law, as defined in Article 3659; and
      (4) The possessory action was instituted within a year of the disturbance.