author: PONDER, Judge.

text:
    Raymond E. HANKAMER et al. v. TEXACO, INC.
    No. 13243.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Writ Granted Sept. 26, 1980.

      A. Lane Plauche and Reid K. Hebert, Plauche, Smith, Hebert & Nieset, Lake Charles, James W. Schwing, Provost, Ernest & Schwing, New Iberia, counsel for plaintiffs-appellants.
    Charles F. Bailey and Reginald J. Rin-guet, Lafayette, counsel for defendant-ap-pellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appeal from the denial of their petition.for a class action suit and from the sustaining of a plea of prescription to any items of damages accruing more than three years prior to the filing of a suit to recover claimed underpayments of overriding gas royalties.

The issues are the appealability of the judgments; the propriety of class action and the correctness of the holding that claims more than three years old are prescribed.

We affirm.

STATEMENT OF CASE

On January 12, 1978, thirty six owners of an overriding royalty interest filed suit against Texaco, Inc., asking for an accounting for a period of ten years of gas produced on State Leases 334, 335, 340 and 341 for judgment for amounts that might be due because of underpayments, plus penalties, and for an order requiring defendant to pay plaintiffs the value of the gas in the future. On June 27, 1978, the court sustained an exception of prescription to any claim accruing prior to three years before the filing of the suit.

On August 7,1978, plaintiffs filed “Plaintiffs’ Second Supplemental and Amended Petition Asserting A Class Action for an Accounting, For Payment of Royalties Due and Owing on Natural Gas and For Damages and Attorneys’ Fees.” On June 15, 1979, the court maintained an exception to the class action. On August 30, 1979, the court rendered and signed a judgment sustaining the exception of 3 years prescription and dismissing the suit as to that portion of plaintiffs’ demand accruing prior to the three years.

On the same day, the court signed a separate judgment sustaining the peremptory exception of no cause and of no right of action to the petition for class action and dismissing “Plaintiffs’ Second Supplemental and Amended Petition Asserting A Class Action.”

APPEALABILITY

When plaintiffs filed their Second Supplemental and Amended Petition Asserting A Class Action, they elected to restate all their claims against the defendant without amending any articles of the original petition. Except for the title assigned, the fact that it was filed in the original suit and assigned the same number and, perhaps, some instances of the same phraseology, the filing could have been an entirely new suit, independent of the original suit. The title assigned to a pleading is not binding on the court. When the trial court made its decision, after objection, and signed the judgment, it dismissed the petition. A judgment of dismissal is final and appealable.

The question of the appealability of the sustaining of three years’ prescription presents a more difficult problem. Another panel of this court, relying on Devillier v. City of Opelousas, 243 So.2d 118 (La.App. 3rd Cir. 1971), denied a motion to dismiss. We entertain considerable doubt as to the correctness of the decision in this case and in the Devillier case, but we elect to proceed to the merits with the belief irreparable injury would result because of the prior decision and the delays resulting therefrom were we now to adopt a contrary decision.

CLASS ACTION

Plaintiffs’ Second Supplemental and Amending Petition alleged that the case consisting of the owners of royalty interests on property covered by the leases were so numerous as to make it impracticable for all to join or be joined as parties, that the character of the rights sought to be enforced are common to all members of the class and require the adjudication of issues of law and fact common to the entire class and that plaintiffs’ claims are typical of those of all the class members in every respect.

After hearing, the court denied the class action because the character of the right sought to be enforced was not common in that the State of Louisiana has the “greatest interest in the class and is not a member of that class .. .. ”

While we are not convinced that the basis is valid because it is not settled that the State could not be joined, if a valid member of the class, which we also doubt, nevertheless we affirm because of failure to meet another guideline: that “the class action will be clearly more useful than other available procedures for definitive determination of a common-based right . in the interests of the parties (including both the class and the opponent(s) to it) and of the efficient operation of the judicial system.” Williams v. State of Louisiana, 350 So.2d 131 (La.1977); Stevens v. Board of Trustees of Police Pension Fund, 309 So.2d 144 (La.1975).

Thirty-six plaintiffs joined in the Second Supplemental and Amended Petition. Four later withdrew as plaintiffs and as potential class representatives. It was estimated that the plaintiffs own about 0.8% of the total royalty and overriding royalty interests or 3.2% of the original V24 overriding royalty interest. Plaintiffs estimate that the class has between 125 and 150 members-.

During the pendency of this appeal, briefs for amici curiae totalling about 75 class members have been filed with us. These briefs were in objection to plaintiffs’ representation of the class and some expressed an intent to opt out of the suit, if the class action be allowed, because they believed that plaintiffs’ interests are not consistent with their own. They assert that they have an ownership of 90% of the overriding royalty interest as compared with plaintiffs’ 3.22%.

Filing of these briefs on behalf of 75 members of the class throws considerable doubt upon any conclusion that the members of the class are so numerous that join-der is impracticable.

The possibility of inconsistent decisions in multiple cases, we believe to have been exaggerated in view of the developments.

The amounts involved in even the minute percentage interests lead us to the conclusion that the class action would be necessary to protect any of the claimants. The representation by counsel of those filing briefs amici curiae indicate otherwise.

Under these circumstances we find that the class action will not “be clearly more useful than other available procedures for definitive determination of a common-based right”. Stevens v. Board of Trustees of Police Pension Fund, supra.

This course of action, we believe, was one of the possibilities the court in Stevens had in mind when it said “. . . subsequent developments may indicate reasons for limiting or expanding the class or for noticing the propriety or impropriety of the actions under the developing facts, . . .

We therefore affirm.

PRESCRIPTION

The plea of prescription was directed at the original petition as amended by the first supplemental and amended petition. While it could be argued that this was replaced and superceded by the second supplemental and amended petition because the latter restated all the allegations; nevertheless, we believe that the plaintiffs and the trial court did not intend such a result.

The overriding royalty interest was created by W. T. Burton when he assigned to Texaco the lease from the State of Louisiana with a reservation. Even though called an assignment, the transaction was in fact a sub-lease. Bond v. Midstates Oil Corp., 219 La. 415, 53 So.2d 149 (1951). The payment of overriding royalty thus created is the payment of rent. Roberson v. Pioneer Gas Co., 173 La. 313, 137 So. 46 (1931). Three year prescription is therefore applicable. La.C.C. Art. 3538; Caddo Levee District v. Pure Oil Co., 167 La. 801, 120 So. 373 (1929).

We distinguish the cases of Da Ponte v. Ogden, 161 La. 378, 108 So. 777 (1926); Wurzlow v. Placid Oil Co., 279 So.2d 749 (La.App.1973), writ denied 282 So.2d 140, and Agurs v. Amoco Petroleum Co., 465 F.Supp. 154, (D.C.La.1979), relied upon by plaintiffs as involving royalty interests not created out of leases.

Therefore the claims for unpaid royalties accruing more than three years prior to the filing of the suit are prescribed. We therefore affirm the decision of the trial court on this point.

For the above reasons, we affirm the ruling of the trial court and remand the case for further proceedings not inconsistent with these reasons. The costs are assessed to the appellants.

AFFIRMED AND REMANDED.

      . The very disposition we make of this case is supportive of our belief that the sustaining of the plea of prescription is an interlocutory decree.


source: Caselaw Access Project

license: Public Domain

text:
    Samuel J. LEWIN v. FIRST PARATRANSIT CORP. d/b/a Yellow Cab, Bellefonte Ins. Co. and Julius Nesmith, Jr.
    No. 13372.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.

      Lennie F. Perez, Baton Rouge, for plaintiff-appellant Samuel L. Lewin.
    John W. Barton, Jr., Baton Rouge, for defendants-appellees First Paratransit Corporation d/b/a Yellow Cab Company and Julius L. Nesmith, Jr.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the judgment for the defendants in this action for malicious prosecution.

We reverse and render.

Defendant Nesmith was a driver for First Paratransit Corporation, operating the Yellow Cab Taxi Service. Plaintiff was an engineer on a ship anchored in the Mississippi River at Baton Rouge.

Nesmith was dispatched to pick up plaintiff from a bar and grill. When plaintiff arrived at the dock to catch a launch back to his ship, he discovered he did not have any money to pay the cab fare. Defendant called his dispatcher who sent the police, as was the custom of the cab company when a passenger could not pay the fare. The police subsequently arrested plaintiff for theft of $19.70 under the Baton Rouge City Code 13:42s. The plaintiff was found not guilty when no evidence was presented against him in City Court.

The ordinance requires that there be an intent to deprive the owner permanently. All the evidence is to the contrary.

Plaintiff stated several times that he had no intention of cheating the cab company. He thought he had money in his wallet when he left the bar. The bartender told the driver that plaintiff could pay. Plaintiff testified he asked the driver to take him to the office of the cab company where he would pay by check or credit card. The cab driver refused. Plaintiff also offered to go to the ship to get the money. The cab driver refused. The arresting officer testified plaintiff asked if he could be taken back to the bar in order to borrow money from either the bartender or his shipmates. The cab driver refused that also.

Plaintiff spent five days in jail before he was able to contact his wife in Colorado to send bail money. On leaving jail, plaintiff immediately paid the cab company, which instructed the driver to drop the charges at the District Attorney’s office. Apparently the driver attempted to do this but never actually dropped the charges.

As a result of plaintiff’s incarceration, he was unable to join his ship when it left port and he lost his job.

There are six elements in an action for malicious prosecution:

(a) The commencement or continuance of an original criminal or civil judicial proceeding;
(b) Its legal causation by the defendant;
(c) Its bona fide termination in favor of the plaintiff;
(d) The absence of probable cause;
(e) Malice; and
(f) Damage to plaintiff.

Robinson v. Goudchaux's, 307 So.2d 287 (La.1975). Only (d) and (e) are seriously contested.

There was no probable cause for the arrest of plaintiff. The defendants wanted their money. However, they should not have used the criminal processes to enforce a civil debt. Harvey v. Bertaut, 303 So.2d 211 (La.App. 4th Cir. 1974); Joyner v. Weaver, 337 So.2d 635 (La.App. 3rd Cir. 1976); Sargent v. Polar Bar Ice Cream Co., 196 So. 541 (La.App.Orleans, 1940); Robinson v. Rhodes, 300 So.2d 249 (La.App. 2nd Cir. 1974). Even if it can be argued that the theft statute otherwise covers the situation, nevertheless, a specific intent is required.

Malice can be inferred when there is a reckless disregard of another’s rights. Robinson v. Goudchaux’s, supra. In the instant case, not only did the driver show reckless disregard for plaintiff when he had him arrested, he also failed to have the charges dropped as he had been instructed to do. As a result, plaintiff appeared in City Court on criminal charges.

Plaintiff proved he lost his job as a result of being jailed. He had made approximately $3,400.00 the previous month. He was unemployed from April 23 until July 6. We award $8,500.00 for these lost wages. Plaintiff should also recover the attorney’s fees he incurred to defend the criminal action. We award $250.00. Harvey, supra.

For damages to reputation, embarrassment, humiliation and mental anguish we award $7,500.00.

We therefore reverse the judgment of the trial court and judgment is rendered in favor of plaintiff and against defendants in solido for $16,250.00 plus interest from date of judicial demand. The costs of this appeal shall be paid by appellee.

REVERSED AND RENDERED.

      . Baton Rouge City Code 13:425:
      “Sec. 425. Theft; attempted theft-Definitions.
      (a) Theft is the misappropriation of taking of anything having a value of less than one hundred dollars ($100.00) which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.”


text:
    LOUISIANA WHOLESALE DISTRIBUTORS ASSOCIATION, INC. et al. v. The DEPARTMENT OF REVENUE AND TAXATION et al.
    No. 13386.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.

      Risley C. Triche, Napoleonville, for plaintiffs-appellants Louisiana Wholesale Distributors Association, Inc., et al.
    Edwin M. Callaway, Baton Rouge, for defendant-appellee Department of Revenue and Taxation, State of Louisiana.
    John S. Thibaut, Jr., Baton Rouge, for intervenor-appellee The Southland Corp.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appealed from the denial of injunctive relief and from the refusal of a declaratory judgment that certain revenue statutes are unconstitutional. The issues are:

1. Standing of plaintiffs
2. Legality of sale of tax stamps at a discount to a wholesale tobacco dealer in Texas
3. Existence of reciprocal agreement between Louisiana and Texas
4. Extent of reciprocity, if any;
5. Constitutionality of
a. Delegation of taxing authority
b. Administration of the cigarette tax law.
We affirm.

Defendants and intervenor, South-land Distribution Center, have urged that plaintiffs have no standing to bring this suit, which, they assert, is really an action against a competitor, the intervenor, rather than against a taxing authority.

Plaintiff, Louisiana Wholesale Distributors Association Inc., is a nonprofit organization of resident Louisiana wholesale tobacco dealers. The other plaintiffs are Louisiana wholesale tobacco dealers (as defined in La.R.S. 47:842(5)).

Plaintiffs, who allege themselves to be taxpayers, complain that defendants have permitted wholesale tobacco dealers in Texas to purchase and use cigarette tax stamps and metered machines or devices, at a discount, outside the territorial limits of Louisiana. They assert these actions to be ultra vires, unlawful and constitutional.

A taxpayer has the right to seek judicial review of acts of public servants which are alleged to be contrary to law, unconstitutional or illegally confected. Roussel v. Noe, 274 So.2d 205 (1st Cir. La.App. 1973). We therefore hold that plaintiffs have standing to bring this suit, as contradistin-guished from entitlement to the relief sought.

Plaintiffs contend that the statutes contain a direct prohibition against the sale of stamps to the intervenor. It is true that LSA-R.S. 47:843(A) has the following provision: “. . . that the said metered machine or device may not be used nor stamps sold to or affixed by any dealer outside the territorial limits of the State of Louisiana.” However, Subsection (B) of the same section reads as follows:

“The collector may enter into agreements with the proper tax authorities of border states affecting reciprocal agreements whereby wholesale tobacco dealers of such states serving a trade area of retail dealers in this state may purchase Louisiana stamps with benefit of discount provided such other states permit Louisiana dealers similarly situated to purchase such stamps with benefit of discount provided said dealers meet the requirements of a wholesale dealer as set forth in R.S. 47:842(5).”

We construe this to be an exception to the prohibition contained in Subsection A.

We agree with the trial court’s holding that a reciprocal agreement exists between Louisiana and Texas. The statute does not require a written agreement, only an agreement. The nature of the reciprocal agreement in enforcement of revenue statutes of this type is simply that Louisiana is willing to grant discounts to border-state dealers if those border states will reciprocate by granting discounts to Louisiana dealers who want to do business in those states. No further agreement is necessary; indeed, any agreement, written or oral, would contain little or nothing else in its provisions.

Texas gives a discount to Louisiana dealers. Louisiana gives a discount to Texas dealers. We find a reciprocity agreement exists.

However, plaintiffs say there is not full reciprocity because Texas gives no discount on cigar and smoking tobacco tax to Louisiana companies while Louisiana gives discounts to Texas companies. But Texas gives no discount on cigar and smoking tobacco taxes to dealers within its own state. Plaintiffs’ contention would require discrimination by Texas against its own dealers in favor of out of state dealers before Louisiana could grant reciprocity. We do not accept that contention.

We agree with the trial judge’s handling of the attack upon the constitutionality and quote with approval:

“Plaintiffs assert several grounds upon which the present statutes, and their interpretation by the Department of Revenue, should be held unconstitutional. These may be joined into two constitutional objections: (1) that the statutes constitute an improper delegation of legislative authority to the Collector of Revenue, an agent of the executive branch of the government; and (2) that the statutes are being interpreted in an arbitrary, unilateral manner by the Collector, which arguably results in denial of equal protection of the law to plaintiffs. The Court believes that neither of these claims is meritorious. * * *
“In support of the argument that there has been an improper delegation of legislative authority, plaintiffs cite several decisions of Louisiana courts. Actually, these authorities appear to the Court to indicate that no improper delegation has taken place. One of these decisions upholds the grant of certain authority to the Commissioner of Agriculature (sic) with appropriate guidelines. Schwegmann Brothers Giant Supermarkets v. McCrory, 237 La. 768, 112 So.2d 606 (1959). The other three involve grants of power to various licensing boards (embalmers, watch makers, divers) which left total discretion in the respective boards to grant or deny a permit to engage in the regulated occupation. Louisiana State Board of Embalmers v. Britton, 244 La. 756, 154 So.2d 389 (1963); Banjavich v. Louisiana Licensing Board for Marine Divers, 237 La. 467, 111 So.2d 505 (1959); State v. Morrow, 231 La. 572, 92 So.2d 70 (1956). Nothing of the sort has occurred in this case. In fact, the well-established principle cited by plaintiffs has been respected. * * the legislature must establish reasonable clear standards or guides in such delegation to fulfill constitutional requirements.’ Britton, 154 So.2d at 390. The legislature has, very simply, authorized the head of the Department of Revenue to grant to out-of-state tobacco dealers in border states the discount granted to in-state dealers, if the other state accords to Louisiana dealers operating in those states a similar privilege. In fact, there is no discretion in the Department of Revenue. If anything, the legislature by its various provisos and re-definitions has substantially curbed any authority in the Department of Revenue with respect to collection of this tax. It has retained and exercised legislative authority to a much greater extent than it ordinarily does, or might have to. The Department is not vested by the legislature with the power to tax, but is only vested with specific, limited authority to permit certain discounts from tax if designated conditions are met.
“Plaintiffs’ second argument concerns the arbitrary application of the statutes in question. Plaintiffs are apparently aggrieved by the sequence of events in the granting of the Southland permit. * *
“Though plaintiffs allude to a special effort to aid Southland Corporation, no clear evidence of that has been adduced. The evidence tends to establish that the Department retained its view of how the statute should be applied, but eventually was persuaded that Southland Corporation was qualified under that application for the discount. Consistent interpretation of the statute by applying it to all those present or future applicants who qualify under it does not establish a case of unconstitutionality.
“Plaintiffs’ primary complaint is that Southland was granted a permit. Once that occurred, the legislation of 1974, the litigation of 1975 and this litigation have followed.”

The claim of discriminatory application of the act is that Southland was not qualified at the time of the issuance of the permit to it and has never been qualified.

The statute at the time that Southland was issued a permit contained the following:

“ ‘Wholesale dealer’ includes only those dealers who shall sell any cigars, cigarettes or smoking tobacco to licensed retail dealers for the purpose of resale.”

Appellants assert that Southland does not qualify because it sold only to its own outlets, the 7-Eleven stores. However, the statute did not include a requirement that the distribution be to other than their own stores. That requirement was added by a 1974 amendment, effective on January 1, 1975. The amendment contained a grandfather clause to the effect that wholesale dealers shall include “those Louisiana dealers who were affixing cigarette and tobacco stamps within the state as of January 1, 1974.” Admittedly, Southland was not affixing stamps within the state on January 1,1974, but the limitation was ruled unconstitutional in Southland Corporation v. Collector of Revenue, 321 So.2d 501 (La.1975). Southland became subject to the grandfather clause and was never required to meet the requirement that fifty percent of the sales be to retail stores other than their own or their subsidiaries.

For these reasons we affirm the judgment of the trial court at appellants’ costs.

AFFIRMED.


author: WATKINS, Judge. LEAR, Judge,

text:
    Ivory M. STOKES v. REPUBLIC UNDERWRITERS INSURANCE COMPANY.
    No. 13253.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    R. Ryland Percy, Tureau, Percy & Mire, Gonzales, for plaintiff and appellee.
    Carey J. Guglielmo, Dale, Owen, Richardson, Taylor & Matthews, Baton Rouge, for defendant and appellant.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This appeal arises from a claim under a fire insurance policy.

Ivory M. Stokes and her teenage children lived in a small frame house in Ascension Parish owned by her aunt who resided in New York. Stokes obtained a fire insurance policy on the house and its contents from Thomassie Malbrough Agency providing $15,000.00 on the dwelling and $5,000.00 on the contents. The policy covered the period from March 30, 1977 to March 30, 1978. A fire occurred at about 4:00 a. m. on September 26, 1977. Republic Underwriters Insurance Company, the insurer, through its adjuster Steve Day, investigated the fire and denied the claim. A proof of loss was submitted to Republic on or about March 15, 1978. Stokes filed a petition on February 9, 1978, seeking $20,000.00 for the dwelling and contents, $5,000.00 in penalties, plus reasonable attorney’s fees of one-third of all monies collected.

On July 24, 1979, the trial court rendered judgment for plaintiff in the sum of $20,-000.00, penalties of $5,000.00, and attorney’s fees of $8,000.00. We affirm the judgment as to the principal sum, but reverse with respect to penalties and attorney’s fees.

On appeal, Republic contends that Stokes had no insurable interest and, in the alternative, that the fire was started by arson.

INSURABLE INTEREST

The record reveals that Stokes had lived in the house that burned since 1968, with her husband and four or five children. At first she lived in the house with her grandmother, who apparently owned the house, and when her grandmother died, her aunt, Miss Whitehurst, who lived in New York, gave her permission to stay in the house, and do whatever she wanted to do with it, as long as she lived. She never paid rent on the house.

It appears that Stokes had an insurable interest. The salient portion of the definition of “insurable interest” found in LSA-R.S. 22:614 states that it means “any lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage.” Here, Stokes had a lawful and substantial economic interest’in the house, as she had a lawful and agreed right to stay in the house as long as she lived, and would necessarily be subject to a pecuniary loss if she were unable to live in the house for life. Although she could not demand to stay in the house, she quite obviously suffered a pecuniary loss. Thus, she had an insurable interest.

An earlier Louisiana case, Brewster v. Michigan Millers Mutual Ins. Co., 274 So.2d 213 (La.App. 2nd Cir. 1973) found that an insurable interest existed although the insured was not the owner of the property which was destroyed by fire. The facts of that case, which are somewhat similar to the facts of the present case, were briefly stated in the following paragraph of the Court of Appeal’s opinion:

“The testimony of Mr. Brewster and his son establishes that Brewster, Sr., had owned the property for about 15 years, during most of which time he and his wife resided in the house. Approximately a year before the house burned the couple had moved into Shreveport and he had rented the structure for a monthly rental of $85. In August of 1970 he had a conference with his sons, who were desirous of having an interest in the property in order to build retirement homes upon it. It was agreed the father would deed the property to his two sons and this was accomplished in August, 1970. The stated consideration for the conveyance was $7,000 which was paid. Brewster and his sons testified that it was their intent that Brewster, Sr. retain possession and control of the house located on the property, with the right to live in it, rent it to others or to use it in almost any manner he saw fit. He did, in fact, continue to rent it and receive the rentals until November 1, 1970. He was to pay taxes, insurance premiums, make repairs and perform any act necessary to the preservation of the property. Further, it was agreed he would collect the rents and use them without the necessity of accounting for them and could move back into the home at his pleasure. When his tenant moved out on November 1, he commenced repairs at his own expense with the intention of moving into the house. The painter was in the process of painting the exterior when the house was totally destroyed by fire on November 7.” (274 So.2d 213, 215)

The court in finding that there was an insurable interest summarized its reasoning as follows:

“We find plaintiff had a substantial economic interest in the preservation of the house which he had built on the property and over which he retained the right of occupancy and the right of control, including collection of rents.” (274 So.2d 213, 217)

Similarly, Stokes in the present case had a substantial economic interest in the preservation of the house, and she had the right of occupancy. Clearly, she had an insurable interest.

ARSON

Ralph Newell, a special agent for INS Investigations Bureau, was called by defendant as an expert witness. He testified that the fire appeared to have started at three points in the house with no major fire damage between the points of origin, and to have spread upward in a “V” shape. The fire had damaged a 10" X 10" sill, a type of damage that was unusual in an accidental fire. He concluded that an “accelerant” was involved. However, he did not take samples to determine the type of acceler-ant, as he arrived at the scene of the fire too late. Furthermore, he admitted on cross-examination that he did not know what was in the attic directly above the points where the fire started on the floor. He stated that he could not say without a doubt what caused the fire; he would only give an opinion, which was, that the fire had been started intentionally.

Stokes’ testimony is that she and her five children were in the house on the night of the fire. Stokes was in the living room and the children were in their rooms. About 4:00 in the morning Stokes smelled smoke, went out on the back porch, and saw her neighbors had a fire burning, which appeared to be a trash fire. She went back in the living room and lay on the couch, and dozed. When she awoke, she saw smoke coming from her bedroom. She got her children up and out of the house. It was not until she had gone out of the house that she saw flames. She attempted to put out the fire with a hose, and her mother called the fire department.

We are not prepared to say that the testimony of Newell successfully refutes the testimony of Stokes, who was an eyewitness. Newell admitted that he had inspected the scene of the fire only on the week of New Year’s Day, 1978, some three months after the date of the fire (September 26, 1977). He arrived at the scene too late to take samples of the accelerant that he testified was used. He admitted that he was uncertain of his conclusions, and that, if the fire had been set, he did not know who had set it.

On the record as presented, we do not think arson has been established. Too many doubts are present. The inspection of Newell came too late. Furthermore, it is significant to note that no criminal charge of arson was ever filed. The trial court did not assign written reasons, but we must assume it found there was no arson, and we cannot say this finding was manifestly erroneous. See Arceneaux v. Adams, 366 So.2d 1025 (La.App. 1st Cir. 1978).

We, therefore, hold that Stokes is entitled to the policy amount of $20,000.00 ($15,000.00 for the house and $5,000.00 for the contents). We believe that there was sufficient question as to whether or not there had been arson and whether Stokes had an insurable interest to justify defendant’s failure to pay Stokes’ claim in the absence of a judgment of court. We, therefore, deny penalties and attorney’s fees.

The judgment of the trial court is affirmed in awarding Ivory M. Stokes the policy sum of $20,000.00, and reversed in awarding Ivory M. Stokes $5,000.00 in penalties and $8,000.00 in attorney’s fees, all costs to be borne by defendant-appellant.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

LEAR, Judge,

dissenting.

The weight of authority holds that a contract of fire insurance is one in indemnity, hence recovery presupposes that the insured had an insurable interest in the property insured and recovery is limited to the extent of actual interest. In the case at bar, plaintiff proved no actual interest, yet she was allowed to recover the full amount of the policy. To hold that a bare licensee has an interest capable of such ascertainment as to create an insurable interest defeats the reason behind the “insurable interest doctrine.”

Plaintiff introduced a mortgage she and her husband obtained on the property by virtue of a power of attorney from the owner, but there is nothing in the record to indicate how much, if any, of the $2,000.00 loan was used to improve the dwelling. Whatever interest plaintiff may have had in the property is speculative, contingent, and incapable of computation. An insurable interest must exist both at the time the policy is written and at the time of loss. Brown v. State Farm Fire and Casualty Co., 363 So.2d 967 (La.App. 3rd Cir. 1978). Plaintiff cites Carroll v. American Employees Ins. Co., 241 So.2d 538 (La.App. 2nd Cir. 1970). In Carroll, plaintiff insured his deceased mother’s property. The court held that he, as an heir, had an insurable interest and that the policy was written on his behalf and on behalf of his minor brothers and sisters, all of whom were heirs and therefore had an insurable interest.

The policy in question was written consistent with the provisions of LSA-R.S. 22:691 and therefore was a standard Louisiana fire insurance policy. Such a contract, to be valid, requires that the insured have an insurable interest at its inception and at the time of loss. Davis-Wood Lumber Co. v. Security Ins. Co. of New Haven, Conn., 154 So. 767 (La.App.). In order to show such interest, there must be shown that the loss exposed the insured to liability of a direct and immediate or potential loss. Rube v. Pacific Ins. Co. of N. Y., 131 So.2d 240 (La.App. 1st Cir. 1960).

Plaintiff testified that after taking out the policy, she called the agency and told the agent that she did not own the property and he assured her that it did not matter. This is difficult to believe since a tenant policy could have been written to cover plaintiff’s belongings in the dwelling. It should further be noted that the sworn proof of loss signed by plaintiff shows plaintiff as the owner (P — 4).

Be that as it may, should the facts establish that both the insurer and the insured were acting in an honest, but erroneous, belief that plaintiff had an insurable interest in the property could not create such an interest which is essential to support the contract. Davis-Wood Lumber Co. v. Security Ins. Co. of New Haven, Conn., cited above.

As stated above, inasmuch as a property insurance contract is one in indemnity, it cannot cover more than the insurable interest that the insured has in the property. In re Clover Ridge Planting and Mfg. Co., 178 La. 302, 151 So. 212.

An insurable interest in the insured property at the time of the loss is protected by the policy; but recovery is limited to the value of that interest. The sum mentioned in the policy is the extent of the insurer’s liability and not the measure of assured’s claim. MaCarty v. Commercial Ins. Co., 17 La. 365. When the name of the person intended to be insured is specific in the policy, such insurance can be applied only to his own proper interest. LSA-R.S. 22:615.

Plaintiff has shown no insurable interest in the dwelling sought to be insured; therefore the contract is null and void insofar as the building is concerned.

I respectfully dissent.

      . See Comment, 1 Loyola L.Rev. 105 (1941), which discusses a Virginia case that reached the same result under similar facts.

      . See brief discussion of this case, Work of the Louisiana Appellate Courts for the 1972-1973 Term, Insurance (McKenzie), 34 La.L.Rev. 197, 348, 349 (1974), in which the reasoning of Brewster is considered approvingly.


author: EDWARDS, Judge. WATKINS, Judge,

text:
    John WADE, d/b/a John Wade and Associates v. James R. JOFFRION.
    No. 13351.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.
    Keith D. Jones, Baton Rouge, for plaintiff-appellant John Wade, d/b/a John Wade and Associates.
    Arthur A. Vingiello, Baton Rouge, for defendant-appellee James R. Joffrion.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Plaintiff, John Wade, d/b/a John Wade and Associates, appeals a trial court judgment rejecting his demands and dismissing his suit against James R. Joffrion. We affirm.

On August 24, 1978, Joffrion gave Wade an exclusive listing and marketing contract for the sale of certain lots in East Baton Rouge Parish. Joffrion himself subsequently sold two of the lots to Steven Gui-dry but refused to pay Wade his commission as provided for in the listing agreement. Wade filed suit for $3,996.00.

At trial, considerable testimony was heard to the effect that two potential purchasers, George M. Peters and Steven Gui-dry, had been excluded from the Wade-Jof-frion listing agreement and that should Jof-frion sell to one of them, no commission would be due Wade. While the written contract contained no exceptions to the listing agreement, testimony tending to establish such exclusions was admitted without objection by plaintiff’s counsel.

The trial court heard the testimony, saw the evidence, and concluded that Peters and Guidry were, indeed, excluded from the contract. Plaintiff’s suit was, therefore, dismissed at his cost.

Plaintiff appeals on the sole basis that the trial court erred in finding exclusions to the written contract.

We agree with the trial court’s findings of fact. The record as a whole clearly establishes that Peters and Guidry were excluded from the listing agreement.

Plaintiff urges that parol testimony should not be controlling as against the clear and unambiguous terms of a written contract. This is true. However, plaintiff’s counsel did not object to the admission of such testimony at trial. Therefore, under the basic evidentiary rule that everything not excluded is admitted, all the parol testimony was properly allowed into the record and considered by the trial court.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by John Wade.

AFFIRMED.

WATKINS, J., dissents and assigns reasons.

WATKINS, Judge,

dissenting.

The majority opinion bases its holding upon a comment contained in a student symposium on parol evidence contained in 35 La.L.Rev. 745 et seq. (1975), which indicates that LSA-C.C. art. 2275 applies to immovables, and 2276 applies to all contracts, and that the former is substantive and the latter evidentiary. We cannot agree, first, that art. 2276 applies to all contracts, as it speaks of “the acts”, clearly referring to the preceding article, art. 2275, which deals with transfers of immovable property. Second, we do not find any Codal basis for the dichotomy of evidentiary and substantive with regard to parol which the law review comment seems to draw, and upon which it cites as authority another law review comment contained in the same student symposium. However, even if we adopt that dichotomy, art. 1945 clearly is substantive. It indicates that “Legal agreements (shall have) the effects of law upon the parties (and) none but the parties can abrogate or modify them.” Here, plaintiff is quite clearly seeking to modify by parol that which is a substantive “law”, contracts being substantive “law”. This he should not be permitted to do. Reading further in art. 1945, we see that “the intent (of the parties) is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences.” Here, the words of the contract are clear and unambiguous, and lead to no absurd consequences, and as the contract constitutes the “law” between the parties, parol that would have the effect of altering it cannot be considered, even if it is admitted without objection. Even if that analysis is flawed, and parol evidence may be considered if admitted without objection, which is clearly an incorrect view, still it should not be accorded sufficient weight to overturn, and be deemed more reliable than, the wording of a clear and unambiguous written contract.

We see that our view, which would find parol evidence admitted without objection insufficient or unworthy of consideration to alter the terms of a written contract that is clear and unambiguous, is in keeping with the jurisprudence of this state.

In Little v. Haik, 246 La. 121, 163 So.2d 558 (1964), plaintiffs introduced without defendant’s objection testimony tending to show an oral contract between plaintiffs and defendant for the purpose of acquiring oil, gas, and mineral leases. The Louisiana Supreme Court held that such testimony would have been inadmissible under the parol evidence rule of C.C. arts. 2275, 2276 as the alleged contract affected mineral interests, a form of immovable property. It then extensively considered the earlier jurisprudence which had held that if parol evidence as to interests in immovable property is introduced without objection, it may be considered (see most notably In re Industrial Homestead Ass’n., 198 So. 528 (La.App.Orl.1940), and impliedly overruled that jurisprudence. The Court in Little held that inadmissible parol evidence introduced without objection cannot be considered where defendant had made a denial, because the law reprobates such proof. Although in the present case it was defendant who introduced parol evidence, and plaintiff who failed to object to its introduction, the reasoning of Little is appropriate. It shows that where interests in immovable property are involved (as is not the case here), and a denial of the truth of the parol evidence is made (either in pleadings, or in testimony, as is presently the case), parol evidence will not be considered, although it is introduced without objection.

The reasoning of Little in holding that inadmissible parol evidence, the veracity of which is denied by the opposing party but which is admitted without objection, cannot be considered, applies to the present case. We believe that because as written the exclusive listing agreement is clear and unambiguous and does not exclude any property, on its face, parol evidence cannot be considered, and that the listing agreement is fully enforceable, and plaintiff, Wade, is entitled to his commission of 6% on Jof-frion’s sale of the lot in question for $40,-600.00.

I respectfully dissent.

      . Louisiana’s parol evidence rule, LSA-C.C. Art. 2276, is evidentiary in nature and not substantive. See Writing Requirements and the Parol Evidence Rule, 35 La.L.Rev. 745, 757 (1975). An evidentiary rule not invoked at trial is waived and may not later be used to exclude evidence. Chivers v. Couch Motor Lines, Inc., 159 So.2d 544 (La.App. 3rd Cir. 1964); In re Industrial Homestead Ass’n., 198 So. 528 (La.App.Orl.Cir.1940); 32A C.J.S. Evidence 863; 88 C.J.S. Trial 115. It is true that Little v. Haik, 246 La. 121, 163 So.2d 558 (1964), implicitly overruled In re Industrial Homestead Ass’n. Little v. Haik, however, was not grounded on the evidentiary rule of LSA-C.C. Art. 2276 but on the clearly substantive requirement of LSA-C.C. Art. 2275 which provides that, in general, every transfer of immovable property must be in writing. Little must therefore not be extended beyond its facts and does not erode the basic principle that an evidentiary rule not invoked is waived. Southern Fleet Leasing Corporation, 228 So.2d 512 (La.App. 3rd Cir. 1969).


author: WATKINS, Judge.

text:
    Laura Wallace TAYLOR v. PULLMAN KELLOGG CORPORATION and the Travelers Insurance Company.
    No. 13421.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Writ Refused Sept. 19, 1980.

      Donna W. Lee, Baton Rouge, for plaintiff-appellant, Laura Wallace Taylor.
    John W. Barton, Jr., Baton Rouge, for defendants-appellees, Pullman Kellogg Corp. and The Travelers Ins. Co.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

Plaintiff-appellant, Mrs. Laura Wallace Taylor, widow of Hubert Taylor, sued Pullman Kellogg Corporation and The Travelers Insurance Company, its workmen’s compensation insurer, for death benefits (see LSA-R.S. 23:1232(1)) under the Workmen’s Compensation Statute, penalties, and attorney’s fees. The trial court held for defendant. We affirm.

Mr. Taylor, a man 71 years of age, who was employed as a millwright by Pullman Kellogg, died on May 4, 1978, of an acute coronary occlusion after having been at work for about two hours. He had had an operation some eighteen months before he died in which he had a dacron graft replacement made of an abnormal aorta. He was taking nitroglycerin tablets under prescription at the time of his death.

There’s no direct evidence of the type of work that Mr. Taylor engaged in on a regular basis, and no direct evidence of the type of work that he engaged in on the day of his death. The only medical testimony in this case is that of Dr. David Weeks Wall, a cardiologist, introduced by deposition by defendant, who testified that the heart attack could not be “blamed” on Mr. Taylor’s activities at work. There is no medical testimony that the heart attack resulted from Mr. Taylor’s employment, or that his employment in any way contributed to it.

In Roussel v. Colonial Sugars Co., 318 So.2d 37 (La. 1975), the test for determining whether or not death by heart attack arose in the course or scope of employment was stated as follows:

“The only remaining issue for determination is whether plaintiff proved by a preponderance of evidence that the fatal heart attack which occurred on the job was caused by decedent’s employment. Difficulty in proving causation arises from the fact that a pre-existing heart infirmity can produce disability at any moment irrespective of any outside influence. However, it is well settled that benefits are due in compensation cases involving heart conditions resulting in disability or death, whether or not the condition is pre-existing, when the accidental injury is caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Hence, it is of no significance that the heart attack could have occurred at another time and place if, in fact, the accidental injury occurred on the job. Further, it is not necessary that the accident resulting in disability or death be caused by extraordinary activities of the employee, or that said activities be the exclusive cause of the accidental injury. As previously stated, it is only necessary that the death or disability resulting from the accidental injury be caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Ferguson v. HDE, Inc. and Bertrand v. Coal Operators Casualty Company, supra.”

(318 So.2d 37, 39)

This ease is distinguishable from the present case because in Roussel decedent had engaged in strenuous work as a machinist, moving heavy machinery, on the day he died and several days before. In the present case it has not been proved that Mr. Taylor engaged in strenuous work.

In Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969), a worker engaged in making concrete culverts had two heart seizures which medical testimony revealed represented an aggravation of a pre-existing heart condition. He engaged in heavy work, and his doctors advised him not to return to work after the second seizure. He sued for workmen’s compensation benefits on the basis of total and permanent disability. The medical testimony recognized that the exertion caused some kind of injury. Compensation benefits were awarded. Bertrand differs from the present case because medical testimony in that case linked the aggravated heart condition to exertion. There’s no showing that Mr. Taylor engaged in heavy exertion, and no showing that the work Mr. Taylor was doing precipitated his heart attack (coronary occlusion).

In Leleux v. Lumbermen’s Mutual Ins. Co., 318 So.2d 15 (La. 1975), the widow of a truck driver who suffered a stroke and died while a load of rice was being placed on his truck sought workmen’s compensation death benefits. The decedent in that case suffered from pre-existing hypertension, or high blood pressure. Two medical experts agreed that it was more likely that “an accident of this sort would occur under the employee’s working conditions than if he had not been working.” Death benefits were awarded. This case differs from the present case in that decedent in that case engaged in heavy physical exertion, and there was medical testimony linking the stroke to the exertion incident to the job.

Lay v. Allied Chemical Corp., 340 So.2d 1076 (La.App. 1st Cir. 1976) was a workmen’s compensation death benefit case in which decedent died of an acute myocardial infarction “after being engaged in activities involving exertive efforts on his part such as climbing stairs and turning valves.” He had no history of heart disease. Death benefits were awarded. Lay differs from the present case because in Lay there is direct testimony showing that decedent engaged in heavy exertion.

Claimant in Griffin v. Crown Zellerbach Corp., 345 So.2d 84 (La.App. 1st Cir. 1977) sought benefits for total and permanent disability resulting from a heart attack suffered while at work as a millwright. A cardiologist testified that claimant suffered from a previous arteriosclerotic condition and that it was at least “reasonably probable that plaintiff’s occlusion resulted from the work in which he was engaged when striken.” The facts showed that claimant in that case engaged in strenuous work. In the present case, once again, there is no direct showing that decedent engaged in strenuous work and no medical testimony even tending to show the heart attack was work related.

The final two cases that we will consider, Ferguson v. HDE, Inc., 270 So.2d 867 (La. 1973), and Barnes v. City of New Orleans, 322 So.2d 821 (La.App. 4th Cir. 1975), writ refused 325 So.2d 584 (1976) are more directly in point, but the present case differs from them because in the present case the only medical testimony, the deposition of Dr. Wall, indicates the occlusion was not work related.

In Ferguson, a sawmill worker lost his temper upon receiving a paycheck which he regarded as being too small, and suffered a stroke. He sought workmen’s compensation benefits. The court found that his disability had resulted from an accident, the stroke, and remanded the case for the awarding of benefits. The opinion contains no mention of any medical testimony linking the stroke with the work.

In Barnes, a clerical worker employed by the City of New Orleans in an air-conditioned office had a heart attack while at work and died in bed at home early the next morning. His widow sued for death benefits under the Workmen’s Compensation Statute. Medical testimony revealed a chronic condition in which one coronary artery was severely restricted by a year’s old arteriosclerotic process that had compromised circulation to the heart muscle. The Court of Appeal’s opinion indicates that there was some medical testimony tending to show the work caused the heart attack. Death benefits were awarded.

In the present case, the only medical testimony that is in the record, the deposition of Dr. Wall, indicates that Mr. Taylor’s heart attack could not be blamed on his activities. This takes this case out of the general reasoning of the Ferguson case, where the opinion does not mention medical testimony and, presumably, there was no significant medical testimony, and the Barnes case where there appears to have been medical testimony linking the heart attack with the work. We, therefore, hold that Mr. Taylor’s heart attack and subsequent death are not compensable. To hold otherwise would be to presume conclusively that a circulatory seizure that takes place while at work is work related and compen-sable, and to go directly contrary to medical testimony that the heart attack in the present case was not work related.

Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


text:
    Joseph H. KAVANAUGH et al. v. Marian Mayer BERKETT et al.
    No. 13433.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Writ Granted Sept. 19, 1980.

      John Dale Powers, and Michael H. Rubin, Baton Rouge, for plaintiffs-appellees, Joseph H. Kavanaugh and Robert B. Tudor, Jr.
    Ashton L. Stewart, Baton Rouge, for defendants-appellants, Marian Mayer Berk-ett, individually and as executrix of the Succession of Maurice J. Mayer, Jr., Rhea CohnRosenburg, Lois Bier Mayer, Charles Davis Mayer, Jr., and Margart Ann Mayer.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action for a declaratory judgment to interpret a provision of a lease and for damages for alleged breach of the lease. From a judgment favorable to plaintiffs which interpreted the lease to require defendants to execute a “commercially feasible mortgage” and which awarded plaintiffs $147,010.00 in damages, defendants have appealed. We reverse.

On April 29, 1968, defendants leased unimproved immovable property on Acadian Thruway in Baton Rouge to Joseph H. Ka-vanaugh and Bilwood Smith. Smith’s interest has since been assigned to Robert B. Tudor, Jr., plaintiff with Kavanaugh. Two of the lessors were minors at the time the lease was executed and a court order was obtained in the Parish of East Baton Rouge authorizing their natural tutrix, Lois Brier Mayer, to execute the lease on the minors’ behalf, and naming Marian Mayer Berkett attorney-in-fact for Lois Brier Mayer in executing “all documents and papers necessary to effect the lease and the option to lease”. That court order was dated January 12, 1968.

Several tracts in the lease were developed without plaintiffs (lessees) calling upon defendants (lessors) to execute a mortgage under the terms of the contract of lease. Then a series of negotiations began that culminated in the present suit. On October 16,1975, a permanent loan commitment was obtained by plaintiffs from the Savings Life Insurance Company of Shreveport, Louisiana, for development of an additional tract in the lease, which required the obtaining of a mortgage from the lessors. These documents were submitted to Mrs. Berkett, attorney for lessors. On November 10, 1975, plaintiffs obtained a construction loan commitment from Louisiana National Bank of Baton Rouge, which required lessors to mortgage the property in question. Negotiations were conducted with the lessors, which resulted in lessors making various counter-proposals regarding the terms of the mortgage. On February 22, 1978, plaintiffs submitted to defendants (lessors), through Mrs. Berkett, a mortgage to obtain permanent financing from Savings Life Insurance Company. The plaintiffs (lessees) called upon defendants (lessors) to execute the mortgage pursuant to the contract of lease dated April 29, 1968, particularly the provisions of Article Ninth thereof. This mortgage contained a confession of judgment and a waiver of notice and appraisement. On March 16, 1978, Mrs. Berkett sent plaintiffs a letter refusing to execute the mortgage in question. In addition to seeking specific performance mandating defendants to sign the mortgage, plaintiffs allege that they suffered a loss of commitment costs in the sum of $20,597.50, and other damages. Plaintiffs also pray “for a declaratory judgment interpreting the lease as requiring defendants to allow a commercially acceptable in rem mortgage to be placed upon the property if such a mortgage is submitted to them (defendants)

The central question concerns an interpretation of provision Ninth (B) of the lease instrument, and more particularly the issue of whether or not lessors by virtue of the terms of the lease were obligated to execute a mortgage containing a confession of judgment and a waiver of notice and appraisement.

The lease (in provision Ninth (B)) requires the lessors in the future to execute a “mortgage” for improvements. To put the question in focus, we quote from provision Ninth of the lease the pertinent provisions:

“(A) LESSEE shall not place any mortgage, lien, privilege or encumbrance on or against the leased property or permit any of its creditors to do so without LESSOR’S prior written consent.
“(B) Upon request and during the primary term (first twenty years) of this lease, LESSOR agrees to permit LESSEE to mortgage the leased property or a portion thereof for the purposes of providing initial interim or initial permanent financing of the cost of physical improvements placed or to be placed on the property covered by the mortgage, provided the LESSEE first satisfies the following terms and conditions:
“1-The mortgage shall involve and shall require no personal or direct obligation on the part of the LESSOR and shall bear only against LESSOR’S land and more specifically, against that portion of the leased property specifically mortgaged.”

As we have stated, the mortgage that lessors refused to sign contained a confession of judgment and waiver of notice and appraisement. In Scottish-American Mortgage Co. v. Ogden, 49 La.Ann. 8, 21 So. 116 (1896), the question arose as to the binding effect of a waiver of appraisement in an act of mortgage executed on behalf of minors wherein the tutor was simply authorized to execute a “mortgage”, which was all the lessors were required to sign in the present case. The minors were of age at the time the mortgage was sought to be enforced. The Court stated:

“Tutors, when they contract in pursuance of deliberations of a family meeting, must confine themselves within the clear and well-defined instructions given. The contract gets its binding force from the family meeting. Any departure from the recommendation inflicting the least injury upon the minors, or waiving any right they may have, is as though it had never been entered into, and is of no effect. The family meeting did not recommend a sale without benefit of ap-praisement. This stipulation in the mortgage is null and void. That the minors, or some of them, have since attained majority, and made no objection, until proceedings were instituted against them, cannot have the effect of making this stipulation valid. It was such an agreement, not authorized, and never entered into by them, that they could resist its attempted enforcement at any time.” (21 So. 116, 118)

Relying upon Scottish-American, the Louisiana Supreme Court held in Kling Mortgage Investment Co. v. Donovan, 178 La. 119, 150 So. 850 (1933), that an order of court authorizing a curator of an interdict to execute a mortgage did not grant him the authority to execute a mortgage that contained a pact de non alienando, a confession of judgment, and a waiver of appraisement, and that these clauses in the mortgage were without effect. In a much more recent case, Hendry v. Nicolosi, 126 So.2d 71 (La.App. 1st Cir. 1961), it was held that a court order authorizing a tutrix to “execute all instruments necessary and incidental, including the encumbering of the property .” did not give the tutrix authority to confess judgment, waive appraisement, or sign a pact de non alienando.

Strahan v. Garis, 183 So.2d 392 (La.App. 4th Cir. 1966), writ refused 248 La. 1104, 184 So.2d 26 (1966), is the only case that we can find which might be considered in conflict with this jurisprudence. However, the authority granted in that case was much broader in terms. In that case, an authentic act of procuration or power of attorney gave the attorney-in-fact the power to execute a note and mortgage “on such other terms and conditions as Charles F. Villas, agent and attorney-in-fact shall deem fit and proper.” That language quite clearly clothed the agent with broad authority. The court, therefore, held that the agent had the power to confess judgment in the mortgage. The holding of this case cannot be said to upset the prior jurisprudence that the authority to execute a “mortgage” confers only the authority to execute a simple mortgage, without a confession of judgment or waiver of appraisement.

Part of the testimony of Gordon Pugh, attorney at law, Baton Rouge, indicates that in his opinion the provision of the lease requiring the lessors to mortgage was simply a contract to contract, and that it would be necessary to obtain an additional order on behalf of the minor lessors to mortgage the property. We do not wish to limit the right of minors in the future, by holding that it would not have been necessary to obtain an additional court order to execute an act of mortgage had the lessors who were minors at the time of the execution of the act of lease still been minors when they were presented with the act of mortgage. However, in the present case, valuable rights of the minors were surrendered in provision Ninth (B) of the lease. The surrender of rights can have been no broader than the specific surrender contained in the lease, the execution of which was authorized by court order. That surrender of rights bound the lessors to execute a simple mortgage, without a confession of judgment and a waiver of notice and appraisement. Quite clearly, that is the limit of the court order which in effect requires the minors to mortgage. The same instrument cannot have one meaning as to minors and another as to majors. We, therefore, hold that none of the lessors is required to execute a mortgage containing a confession of judgment or waiver of notice and appraisement.

As the jurisprudence is clear that authority to execute a “mortgage” where minors are involved confers only the authority to execute a simple mortgage not containing a waiver of notice, waiver of appraisement and confession of judgment, it is unnecessary to determine what is custom or usage with regard to the obligation vel non of a lessor to execute an act of mortgage containing those clauses, when he simply consents to “mortgage” in the lease instrument and none of the lessors is a minor, or to consider the degree to which appellants or appellees have established their opposing contentions with respect to the existence or non-existence of such custom. We limit ourselves to holding simply that in the present case, because minors were involved, the execution of the lease instrument, on behalf of minors and by the majors, required only the execution of a simple mortgage by the lessors, one not containing a waiver of notice and appraisement and a confession of judgment.

Because we hold that lessors were not obligated to execute a mortgage containing a confession of judgment and waiver of notice and appraisement, lessors cannot be held liable in damages for failure to execute the act of mortgage in favor of Savings Life Insurance Company, which contains those clauses.

We hold further that plaintiffs’ prayer that “mortgage” be declared to mean “commercially feasible mortgage”, seeks a determination that would be in itself unclear if stated in those terms, or impossible for this Court to give, if it were stated with greater exactitude. It is a fundamental principle that a court may not rewrite the contract for the parties under the guise of construction. The mortgage contemplated by the parties could or could not contain numerous provisions which would be permissible under the contract of lease. This court does not feel that it is required or expected to spell out the terms of a prospective mortgage.

The judgment of the trial court holding that “mortgage” means “commercially feasible mortgage” and awarding $147,010.00 in damages is accordingly reversed, all costs in both courts to be borne by plaintiffs-ap-pellees.

REVERSED.

      . Nor is it necessary for us to determine the effect of two cases cited by the trial court on custom in its reasons for judgment. Kaplan v. University Lake Corp., 369 So.2d 1107 (La.App. 1st Cir. 1979) and National Safe Corp. v. Benedict-Myrick, Inc., 371 So.2d 792 (La.1979). In addition, we might note, neither case involves the legal or factual situation here raised, as the first concerns the effect of an assumption of mortgage and the second an implied agreement not to compete.


author: EDWARDS, Judge.

text:
    Roger V. PAILET v. OFFICE OF HEALTH SERVICES AND ENVIRONMENTAL QUALITY, DEPARTMENT OF HEALTH AND HUMAN RESOURCES.
    No. 13435.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Julian Murray, Murray, Murray, Ellis, Braden, & Landry, New Orleans, for appellant.
    Frank H. Perez and Joseph A. Donchess, Baton Rouge, for appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Plaintiff, Roger V. Pailet, appeals a Louisiana State Civil Service Commission decision dismissing as untimely his appeal of a suspension by the Office of Health Services and Environmental Quality, Department of Health and Human Resources. We reverse.

Pailet, the Public Health Program Administrator for Jefferson Parish, was indefinitely suspended without pay but for a period not to exceed ninety days on November 8, 1978, by letter from J. T. Hamrick, M.D., Acting Assistant Secretary and Director of Local Health Services, Department of Health and Human Resources, hereinafter DHHR.

On November 22, 1978, pursuant to Civil Service Rule 12.2(a), Pailet was mailed detailed written reasons for his suspension. Those reasons, which plaintiff received on November 25, included:

1. repeated and extensive lateness for work;
2. repeated and intentional falsification of work records;
3. fraudulent acceptance of pay for work not done;
4. intentional falsification of travel vouchers;
5. administrative intimidation of personnel;
6. inciting personnel to violence;
7. permitting unofficial overtime/compensatory time in contravention of specific directives;
8. continuing insurance coverage on inoperative vehicles;
9. negligently allowing the destruction of public property.

The final two charges were made based on information discovered after plaintiff’s suspension. In addition, Pailet was

“expressly advised that there may well be additional allegations, charges and/or disciplinary action brought against you as a result of our continuing and extensive investigation. Nevertheless, as required by the Civil Service Rules, we are furnishing you in this letter with as much details as we presently have, which form the basis of and requires that your suspension without pay continue for the duration of the investigation. Additional time is needed to complete the investigation and reach a final determination in your case.”

On December 19, 1978, plaintiff appealed his suspension to the Civil Service Commission, hereinafter CSC.

DHHR filed a Motion for Summary Disposition of Appeal on February 22, 1979. The gravamen of DHHR’s motion was that plaintiff had failed to comply with Civil Service Rule 13.12(a).

At the CSC hearing on the motion, counsel for plaintiff contended that the appeal was indeed timely inasmuch as it was filed less than thirty days after plaintiff received the written reasons for his suspension. Counsel urged that the thirty days for appeal permitted by Civil Service Rule 13.-12(a) only commenced to run on November 25, 1978, and not on November 8, because until November 25, plaintiff had no grounds on which to preparte an appeal. This argument availed nothing since on April 12, 1979, the CSC issues its opinion granting DHHR’s motion for summary disposition and dismissing plaintiff’s appeal of his suspension.

Plaintiff filed an application for appeal to the Court of Appeal, First Circuit, on May 11, 1979. Three days later, and, resulting from an extensive discussion of the matter by CSC members together with general counsel, the CSC issued ex proprio motu an “Amended Opinion.” The judgment of April 12, 1979, was reversed and DHHR’s motion for summary disposition was denied. Plaintiff, therefore, voluntarily withdrew his application for appeal on the ground there was no need for one, issue having been decided in his favor.

On May 30, .1979, DHHR sought supervisory writs from the First Circuit. Certiora-ri was granted and, on August 22, 1979, based on an interpretation of Civil Service Rules 13.14(e) and 13.33(b), the “Amended Opinion” of May 14, 1979, was annulled and the judgment of April 12, 1979, was reinstated. Pailet v. Office of Health Services and Environmental Quality, Department of Health and Human Resources, No. 12,917 (La.App. 1st Cir. 1979).

Plaintiff, through counsel, refiled his appeal to the First Circuit Court of Appeal on August 27, 1979. By letter dated September 6, 1979, R. Gray Sexton, General Counsel to the CSC, notified plaintiff’s counsel that the CSC considered this appeal timely and was preparing a transcript for the Court of Appeal.

Notwithstanding these developments, on September 28, 1979, DHHR filed a Motion to Dismiss Unlodged Appeal. DHHR contended that since the April 12, 1979, judgment had been declared to be the final decision of the CSC, and since no timely appeal from that judgment remained extant, the unlodged appeal sought to be reinstated on August 27 should be dismissed. This argument was rejected and the motion to dismiss denied on the ground that the original granting of the motion for summary disposition did not become final until reinstated by this court on August 22, 1979. Pailet v. Office of Health Services and Environmental Quality, Dept. of Health and Human Resources, 379 So.2d 266 (La.App. 1st Cir. 1979). DHHR’s request for a rehearing was denied on December 27,1979, and the Louisiana Supreme Court denied writs on February 15, 1980. 380 So.2d 102.

In its present posture, this case presents a single issue-whether Pailet’s appeal to the CSC from his suspension of November 8, 1979, was timely or not.

DHHR urges that plaintiff’s thirty day period for appeal began to run with his notice of suspension on November 8, 1978. Pailet maintains that it began on November 25, 1978, when he received the reasons for suspension. Since we have been unable to find any cases on point, the issue appears to be res nova.

For several reasons, we find Pailet’s thirty-day delay for appeal began on November 25, 1978, and that his original appeal was therefore timely.

Civil Service Rule 12.3 contains the procedure for all adverse actions for cause, except suspensions. The rule clearly aims to provide all those who have suffered from adverse determinations thirty days to prepare their appeal. Even though Rule 12.2, supra, provides a separate procedure for suspensions, nothing indicates that those suffering suspensions, a penalty less drastic than removal, should have a lesser time to appeal than those merely being reprimanded. It is obvious that the separate procedure for suspensions is to provide supervisors with a vehicle for on-the-spot, rather than carefully considered, disciplinary decisions. The delay of fifteen days for providing written reasons which Rule 12.2 allows is not meant to slice a suspended employee’s appeal time in half but to give a suspending authority time to fully explain his actions.

In Powell v. City of Winnfield Fire and Police Civil Service Board, 370 So.2d 109 (La.App. 2d Cir. 1979), the court stated that the purpose of provisions requiring reasons to be given to adversely affected employees

“is to afford due process to the employee under civil service so that he might know with reasonable particularity the facts and circumstances he may be called upon to rebut in case his employer makes out a prima facie case against him before the Board to whom he has the right of appealing for an investigation and a full hearing.”

Numerous cases repeat this principle and hold that an employee must be provided with the details of his alleged offense. Warrendorff v. Department of Safety-Fire Division, 378 So.2d 534 (La.App. 4th Cir.. 1979); Dumez v. Houma Municipal Fire & Police Civil Service Board, 365 So.2d 603 (La.App. 1st Cir. 1978); Shelfo v. LHHRA, Pinecrest State School, 361 So.2d 1268 (La.App. 1st Cir. 1978), writ denied 364 So.2d 122 (La.1978); Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir. 1976), writ denied 343 So.2d 1078 (La.1977). When an employee has not been provided with proper notice, the delay for appeal will not commence to run, Ducote v. Louisiana Dept. of Health and Human Resources, 369 So.2d 179 (La.App. 1st Cir. 1979), and the notice provided must not be so short of details as not to amount to notice. Circumstances giving rise to the action should be alleged in detail. Cilano v. Department of Employment Security, 356 So.2d 458 (La.App. 1st Cir. 1977).

In the present case, Pailet was not provided with detailed reasons for his suspension until November 25,1978. Thus, he did not receive real notice of his alleged offenses and was not able to prepare a defense until that date.

Our position on this matter is buttressed by the fact that the CSC, on reconsideration, also found no real notice had been given until November 25, 1978, and attempted to amend its original opinion to so indicate.

Roger Pailet was suspended after twenty-nine years of service. Serious allegations have been made against him and he has made serious countercharges against the suspending official. Plaintiff has an employment interest of which he cannot be deprived without due process.

Legros v. Department of Public Safety, Division of State Police, 364 So.2d 162 (La.App. 1st Cir. 1978), writ denied 366 So.2d 562 (La.1979), noted that the CSC is a quasi-judicial body and so long as its rules are reasonable and do not violate basic constitutional rights, they must be recognized and enforced by the courts.

We agree with the court in Legros and note that to follow DHHR’s interpretation of the Civil Service Rules would result in a shortened period of appeal only for those employees who had been suspended. In addition, the resulting fifteen day delay for appeal would be manifestly insufficient to permit a suspended employee to defend numerous and complex charges such as were made against plaintiff. For appeal purposes, plaintiff would have been better off had he been dismissed and not merely suspended. This court will not countenance such a violation of basic due process rights.

DHHR has fought relentlessly to deny an employee of twenty-nine years any appeal whatsoever. Appeals, including those involving Civil Service matters, are favored. Odom v. City of Minden, 281 So.2d 117 (La.1973). Our decision today clarifies the Civil Service Rules insofar as appeals are concerned, insures procedural due process in this case, and allows Roger V. Pailet an appeal to the Civil Service Commission.

We hold that when an employee protected by Civil Service is suspended, the thirty day delay for appeal does not commence to run until notice sufficient to constitute notice under Civil Service Rule 12.3 is furnished him.

For the foregoing reasons, the Civil Service Commission decision of April 12, 1979, is annulled and reversed. The case is remanded to the Civil Service Commission for hearing. All costs of these proceedings, before both the Civil Service Commission and this court, are to be paid by DHHR.

REVERSED AND REMANDED.

      . 12.2 Suspensions.
      (a) “Any employee who is suspended without pay shall be so notified by his appointing authority on or before the effective date of the suspension. Each permanent or probationary employee so suspended shall be furnished detailed reasons therefor in writing within fifteen calendar days following the effective date of the suspension. A copy of such detailed reasons shall be furnished to the Director.”

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

      . 13.14(e)
      “When the Commission disposes summarily of an appeal, its decision shall be final on the date it files its written decision with the Director disposing of the case. The director thereafter shall give the interested parties notice of the decision.”
      13.33(b)
      “No rehearing shall be granted from a final decision of the Commission.”

      . 12.3 Procedure in Adverse Actions for Cause, Except Suspensions.
      (a) “In every case of removal, demotion, or reduction in pay for cause of a permanent employee, the appointing authority or his authorized agent shall:
      1. Furnish to the employee at the time such action is taken, or prior thereto, a statement in writing giving detailed reasons for such action.
      2. In such cases, the appointing authority or his duly authorized agent shall, commencing January 1, 1978, include in the written notice the following provision: ‘You may appeal this action to the Civil Service Commission within 30 days. The appeal must conform to the provisions of Chapter 13 of the Civil Service Rules,’
      3.The appointing authority shall furnish the Director a copy of such statement within fifteen calendar days of the date the employee is notified.”
      (b) “A written statement to which reference is made in the preceding paragraph shall be deemed furnished to the employee
      1. Upon actual receipt by, or manuel delivery to, the employee or to any resident of suitable age and discretion of the employee’s domicile, or
      2. On the seventh day subsequent to the day on which an appointing authority establishes that it was deposited in the United States Mail, with proper postage affixed, and addressed to the employee at his last known address as furnished to the appointing authority at the the of employment, or as changed by the employee in writing.”