author: LOBRANO, Judge.

text:
    Stephen REBOUL v. DEPARTMENT OF POLICE.
    No. 13024.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1982.

      Sidney M. Bach, Bach & Wasserman, New Orleans, for plaintiff/appellee.
    Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant/appellant.
    Ralph D. Dwyer, Jr., New Orleans, for Civil Service Com’n, the City of New Orleans, applicants for amicus curiae.
   LOBRANO, Judge.

On June 9, 1981, Officer Stephen V. Re-boul of the New Orleans Police Department received a letter from the Superintendent of Police, Henry Morris, advising Reboul to appear on June 10, 1981 for a disciplinary hearing in regard to various matters outlined in said letter. (See Appendix 1, letter of June 9, 1981.) Officer Reboul appeared as instructed, and on June 11, 1981 was dismissed from the department by letter dated the same date over the signature of Superintendent Morris. (See Appendix 2, letter of June 11, 1981.) Officer Reboul appealed his dismissal to the Civil Service Commission who referred same to a hearing examiner pursuant to Article X, Section 12 of the Louisiana Constitution of 1974. Finding that the City, as the appointing authority, failed to carry the burden of proof as to the charges leveled against Re-boul, the Commission, through three members, unanimously reversed his dismissal and ordered that he be reinstated. The City has appealed the Commission’s findings raising two issues. First the City claims that the procedure utilized by the Civil Service Commission is unconstitutional and violates Civil Service Rules, as well as the Revised Statutes. Second the City claims the Commission erred in finding no legal cause for dismissing Officer Reboul. We shall address the constitutional issue first.

Article 10, Section 4(A) of the Louisiana Constitution provides:

“A city civil service commission shall exist in each city having a population exceeding four hundred thousand. The domicile of each commission shall be in the city it serves. Each commission shall be composed of five members, who are electors of the city, three of whom shall constitute a quorum. The members shall serve overlapping terms of six years as hereinafter provided.”

Furthermore, it is provided in Article 10, Section 12 that the commission shall have the “exclusive power and authority to hear and decide all removal and disciplinary cases. . .” These constitutional provisions are supplemented by the Civil Service Rules, particularly Civil Service Rule II, Section 3.5 which provides:

“Three members of the Commission shall constitute a quorum for the transaction of business and appeals. The findings of a majority of such quorum shall control.”

Appellant argues that from a reading of the above cited Constitutional provisions, and civil service rules, it is “implicit” that the rendering of a decision must be done only after review by the entire five member panel. The City argues that the use of the words “quorum” and “control” are suggestive of this interpretation, and that any rule which limits the number of commissioners is violative of the Constitution. This is simply not so. The language of the Constitution is clear that three members are sufficient to act on behalf of the Commission, and that the Commission is empowered to hear all appeals. It is quite evident that the Civil Service Rules were drawn in conformity with these Constitutional provisions. We therefore refuse to read something into the language of the applicable law that just isn’t there. Since the procedure utilized by the Civil Service Commission in this case is not violative of any constitutional provision, or statute, we now consider the merits of this matter.

The following doctrine has been well established by our courts in changing or modifying the disciplinary action of the appointing authority.

“The legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. The protection of civil service employees is only against firing (or other discipline) without cause. This protection arises from La. Const. Art. 10, Sec. 8(A); ...” Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4th Cir. 1978) at 1222; See also, Chandler v. Department of Streets, 394 So.2d 812 (La.App. 4th Cir. 1981); Bouterie v. Department of Fire, 410 So.2d 340 (La.App. 4th Cir. 1982);

Legal cause has been defined by our Supreme Court in Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962) at p. 9 as follows:

“Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service.”

Furthermore, the burden of proving legal cause before the Commission shall be on the appointing authority. La. Const. Art. 10, Sec. 8(A). See also, Joseph v. Department of Health, 389 So.2d 739 (La.App. 4th Cir. 1980). Our standard of appellate review in civil service cases is the same as that which exists in judicial review. We must determine if the Commission’s finding is arbitrary and capricious or is manifestly wrong. McGee v. Sewerage and Water Board of New Orleans, 396 So.2d 430 (La.App. 4th Cir. 1981). The Constitution provides for review of both law and facts, and we are to give great weight to the factual conclusions of the trier of fact. La.Const. Art. 10, Sec. 12; Hebert v. Department of Police, 362 So.2d 1190 (La.App. 4th Cir. 1978); Dumez v. Houma Municipal Fire and Police Civil Service, 408 So.2d 403 (La.App. 1st Cir. 1981).

The findings and conclusions of the Civil Service Commission in this case are well articulated, and satisfy this Court that its ruling is correct. Appellee, Reboul, was dismissed by the aforementioned letter of June 11, 1981. That letter lists a number of incidents dating from 1974 thru 1980 which purportedly form the basis of the Superintendent’s actions. Those incidents include five civil lawsuits in which Reboul was a party defendant, along with the City of New Orleans, and others. A close reading of the subject dismissal letter indicates that as a result of the various incidents listed therein, Reboul was found to violate Rule 4, paragraph 4, subparagraph (a) of the Department’s rules and regulations which provide as follows:

“Rule 4, Performance of Duty
4. Neglect of Duty
a. Each member, because of his grade and assignment, is required to perform certain duties and assume certain responsibilities. A member’s failure to properly function in either or both of these areas constitutes a neglect of duty.”

The letter also states:

“The number and similarity of complaints lodged against you tends to indicate an inability on your part to effectively deal with the public in a satisfactory manner. Moreover, the notoriety which has accrued to you through your past actions has rendered your ability to function within the department ineffective at best. ..”

A careful review of the testimony adduced at the hearing clearly shows that it was not the intention of the City to prove the allegations or factual circumstances surrounding each and every incident listed in the dismissal letter. During the hearing before the Commission the City Attorney stated that the City is not alleging the officer necessarily in each and every instance performed some act of misconduct, but that all of the incidents taken as a whole are viewed or perceived by the members of the community in a certain way so that this officer was unable to effectively perform as a police officer. It is clear that the City did not intend to get into the specifics of each and every complaint. In this regard we agree with the findings of the Commission that the City not only failed to carry its burden of proving any of the incidents listed, but failed to show any misconduct or neglect of duty sufficient to sustain appellee’s dismissal. The testimony of Chief Morris shows clearly that he was unaware of the various incidents listed in his letter until it was brought to his attention by the City Attorney, apparently because of the notoriety received by Officer Reboul in the unfortunate occurrence in Algiers. He was vaguely familiar with ap-pellee’s past conduct record, and could only testify that the officer was cleared by the internal investigation within the department of any wrong doings in the civil suits.

We are not unmindful of the obligation of the Civil Service Commission to uphold the disciplinary action of the appointing authority when there is sufficient cause shown to sustain such action. Joseph v. Department of Health, 389 So.2d 739 (La.App. 4th 1980). The Superintendent of Police is charged with the operation of his department, and he is the one who must run the department to the best of his ability, and be answerable for its actions. Included in his duties is the discretion to take disciplinary action when there exists sufficient cause for same. However, he has the burden of proving such cause. The question before us therefore is whether or not the evidence in the record supports the appointing authority’s action by a preponderance. See, Arnold v. N.O. Police Department, 383 So.2d 810, (La.App. 4th 1980). We agree completely with the Civil Service Commission that the burden was not carried out.

We also feel compelled to address the issue which underlies throughout these proceedings, and that is the question of notoriety as a cause of dismissal. As so aptly put by the Commission:

“Prior to the unfortunate occurrance (sic) in Algiers, he (Reboul) was not notorious. Yet he is notorious now and the City wants to dismiss him, if not for this, then for something it refuses to put in writing.”

There can be no question that a pattern of conduct which is detrimental to the continued efficient operation of a public office can be grounds for dismissal. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962). Repeated improper conduct after lesser, disciplinary action has been taken, the totality of individual lesser offenses or a single severe incident have all been found to constitute legal cause for dismissal. See Ryder v. Department of Health and Human Resources, 400 So.2d 1123 (La.App. 1st Cir. 1981), and the cases cited therein at p. 1126. It is only logical that the pattern of conduct must be proved by the appointing authority. We find no such proof in the record before us. The Supreme Court pointed out in Leggett, supra, 140 So.2d at 9, 10.

“. . . there must be a real and substantial relation between the conduct of the employee and the efficient operation of the public service; otherwise legal cause is not present, and any disciplinary action by the commission is arbitrary and capricious.”

Complaints, publicity and gossip in themselves do not constitute legal cause for discharge. Notoriety is something a police officer, or any public employee, or official for that matter cannot control. There must be more shown than mere notoriety, for that in itself proves nothing. We note that there is no evidence in the record that Re-boul was “notorious”, other than the statements of the Superintendent. It should also be pointed out that notoriety, although implying negative reactions, can also be regarded from the positive view. The record contains various letters of commendation from public officials praising Officer Re-boul’s work. This certainly can also be described as “notoriety”.

Dismissal is the most severe of disciplinary actions that can be taken by the appointing authority. The appointing authority must not only prove the cumulated charges or “incidents”, but must prove that they resulted in a detrimental effect on the efficient operation of the department. Adverse publicity coupled with unproven alie-gations or incidents are not sufficient to warrant dismissal.

We conclude, as we must, that the Civil Service Commission’s ruling was correct. The City failed to prove sufficient cause for Reboul’s dismissal. It’s allegations of appellant’s inability to perform effectively are not supported by the record, and the allegations of notoriety as being detrimental to the department are just not supported by the evidence. Simply put, if the City had reasons to fire Reboul they did not prove it. Accordingly the judgment of the Civil Service Commission is affirmed.

AFFIRMED.

APPENDIX 1

June 9, 1981

Police Officer Stephen V. Reboul Social Security # [ XXX-XX-XXXX ] 6263 Colbert Street New Orleans, Louisiana 70124

It has come to my attention that you have been the subject of a long series of investigations prompted by complaints of police misconduct, particularly the excessive use of force. These cases have arisen administratively and judicially over a period of years, some of which are continuing presently. The following reflects an individual listing of investigations by the departmental Internal Affairs Division. This listing is not all inclusive as it has been brought to my attention that other acts of misconduct on your part have been handled at a Unit level.

This history encompasses the time period from your date of appointment as a police recruit, January 9, 1974, to the present.

1. 1974 — discharging fireworks

2. 1975 — I.A.D. # 75-278 complaint of brutality, discourtesy and police brutality from Craig A. Courtney

3. 1975 — I.A.D. # 75-280 complaint of brutality, discourtesy and obscene language from Andrew L. Brown

4. 1976 — I.A.D. # 75-64 complaint of brutality from Henry S. McGoey

5. 1976 — abuse of sick time

6. 1976 — I.A.D. # 76-318 complaint of unnecessary use of force by Colleen Moody

7. 1977 — use of sick leave privileges

8. 1978 — I.A.D. # 78-9 AIS you were investigated for discharging your weapon at an unknown subject

9. 1978 — I.A.D. # 78-200 (I) illegally entering the residence of Loretta Barnes

10. 1978 — I.A.D. # 78-291 complaint of police brutality by Arties Manning and Jake Winston

11. 1978 — missing Municipal Court, Section D, on November 10, 1978

12. 1978 — I.A.D. # 78-361 (C) accusation of theft by Eddie Caston, Jr.

13. 1979 — I.A.D. # 79-3 you were investigated for discharging your weapon

14. 1979 — I.A.D. # ASI 79-7 you were investigated for the discharge of your weapon and the death of Robert L. Taylor

15. 1979 — I.A.D. # 79-275 (C) complaint of brutality from Melvin Foster

16. 1980 — I.A.D. # 80-152 (I) complaint of unnecessary use of force from Jimmy Johnson Shukree Chajua and Abraha Chajua

In addition to the above internal proceedings, your conduct as a police officer has resulted in the filing of a number of lawsuits against the City of New Orleans, the New Orleans Police Department and you individually, to-wit:

(1) Cheryl Cheatham, et al, versus the City of New Orleans, et al, case # 592-798 on the docket of the Civil District Court for the Parish of Orleans (CDC)

(2) Jake Winston versus the City of New Orleans, et al, ease # 79-2288, United States District Court for the Eastern District of Louisiana (USDC)

(3) Curtis Smith versus the City of New Orleans, Steve Reboul, et al, case # 79-17783 on the docket of the Civil District Court for the Parish of Orleans (CDC)

(4) Samuel Fant, Provisional Curator of Willie Fant, Jr. versus the City of New Orleans, Stephen Reboul, et al, case # 80-7082, Civil District Court for the Parish of Orleans (CDC)

(5) Esther Allen, et al, versus the City of New Orleans, et al, case # 80-15672, Civil District Court for the Parish of Orleans

As a result of several of the aforementioned legal proceedings, the City of New Orleans has been required to pay amounts totaling Eight Hundred Fourteen Thousand ($814,000) Dollars to the respective litigants. (Cheatham — $800,000.00; Winston —$12,500.00; and Allen — $1,500.00)

Additionally, it is my understanding, you are the focal point of further pending litigation, filed and unfiled. Considering all of the aforementioned incidents, the cash settlements exacted and the possibility of yet future actions, this Department is placed in an untenable position.

The number and similarity of complaints lodged against you tends to indicate an inability on your part to effectively deal with the public in a satisfactory manner.

Additionally, your misconduct in other aspects, i.e., sick leave abuse, missing court, departmental vehicle accidents and other miscellaneous incidents reflects a total disregard for the Rules and Regulations of this Department.

Moreover, the notoriety which has accrued to you through your past actions has rendered your ability to function within the Department ineffective at best, as you cannot be assigned to street duty in that any questionable action you might take would draw negative criticism and acute scrutiny, regardless of the circumstances surrounding the. incident.

A disciplinary hearing, in regard to this matter, may determine you are in violation of the following Rules and/or Regulations of this Department.

RULE 4, PARAGRAPH 4, SUBPARA-GRAPH A, Relative to Neglect of Duty

a. Each member, because of his grade and assignment, is required to perform certain duties and assume certain responsibilities. A member’s failure to properly function in either or both of these areas constitutes a neglect of duty.

Moreover, your conduct may also be in violation of Rule IX of the Civil Service Rules for the City of New Orleans, relative to the maintaining of standards of service, in that you are either, “unwilling or unable to perform the duties of your position in a satisfactory manner.”

You are hereby instructed to appear in my office in the uniform of the day or coat and tie on June 10, 1981 at 12:00 P.M. for a disciplinary hearing in regard to this matter. At that hearing, you will be afforded an opportunity to present any mitigating circumstances or explanations you may have to offer.

s) Henry M. Morris HENRY M. MORRIS Superintendent of Police

HMM/KB/gf

APPENDIX 2

June 11, 1981

Police Officer Stephen V. Reboul SSN [ XXX XX XXXX ] 6263 Colbert Street New Orleans, LA

Dear Officer Reboul:

An administrative report documenting violations of Departmental Rules and/or Procedures, has been conducted by my office for the determination of disciplinary action. You were served with a copy of the Charge letter specifically detailing these allegations by Deputy Chief David Kent on June 9, 1981. As a result of this inquiry you have been found to have violated Departmental Rules and/or Procedures as set forth below:

This history encompasses the time period from your date of appointment as a police recruit, January 9, 1974, to the present.

1. 1974 — discharging fireworks

2. 1975 — I.A.D. # 75-278 complaint of brutality, discourtesy and police brutality from Craig A. Courtney

3. 1975 — I.A.D. # 75-280 complaint of brutality, discourtesy and obscene language from Andrew L. Brown

4. 1976 — I.A.D. # 76-64 complaint of brutality from Henry S. McGoey

5. 1976 — abuse of sick time

6. 1976 — I.A.D. # 76-318 complaint of unnecessary use of force by Colleen Moody

7. 1977 — use of sick leave privileges

8. 1978 — I.A.D. # 78-9 ASI you were investigated for discharging your weapon at an unknown subject

9. 1978 — I.A.D. # 78-200(1) illegally entering the residence of Loretta Barnes

10. 1978 — I.A.D. # 78-291 complaint of police brutality by Arties Manning and Jake Winston

11. 1978 — missing Municipal Court, Section D, on November 10, 1978

12. 1978 — I.A.D. # 78-361(C) accusation of theft by Eddie Caston, Jr.

13. 1979 — I.A.D. # 79-3 you were investigated for discharging your weapon

14. 1979 — I.A.D. # ASI 79-7 you were investigated for the discharge of your weapon and the death of Robert L. Taylor

15. 1979 — I.A.D. # 79-275(C) complaint of brutality from Melvin Foster

16.1980 — I.A.D. # 80-152(1) complaint of unnecessary use of force from Jimmy Johnson, Shukree Chajua and Abraha Chajua

Furthermore, a review of your departmental personnel record indicates the following unit disciplinary actions:

April 2,1974 DM-3

April 4,1974 DM-3

April 9,1974 DM-3

May 8,1974 DM-3

May 13,1974 DM-3

May 24,1974 Letter of reprimand

December 6,1974 Counseled on sick abuse

December 10,1974 Letter of reprimand for driving habits

February 7,1975 Letter of reprimand for driving habits

July 14,1976 Letter of reprimand for driving habits

July 27,1976 Letter of caution on sick abuse

August 9,1976 Letter of reprimand on sick abuse

December 21,1977 Letter of reprimand on sick abuse

Additionally, your payroll records indicate that during 1978 you used eighteen (18) sick days; during 1979 you used eleven (11) sick days; and during 1980 you again used eighteen (18) sick days. All the aforementioned facts tend to support your violation of Rule 4., paragraph 4., subparagraph a., relative to Neglect of Duty.

In addition to the above internal proceedings, your conduct as a police officer has resulted in the filing of a number of lawsuits against the City of New Orleans, the New Orleans Police Department and you individually, to-wit:

(1) Cheryl Cheatham, et al, versus the City of New Orleans, et al, case # 592-798 on the docket of the Civil District Court for the Parish of Orleans (CDC)

(2) Jake Winston versus the City of New Orleans, et al, case # 79-2288, United States District Court for the Eastern District of Louisiana (USDC)

(3) Curtis Smith versus the City of New Orleans, Steve Reboul, et al, case # 79-17783 on the docket of the Civil District Court for the Parish of Orleans (CDC)

(4) Samuel Fant, Provisional Curator of Willie Fant, Jr. versus the City of New Orleans, Stephen Reboul, et al, case # 80-7082, Civil District Court for the Parish of Orleans (CDC)

(5) Esther Allen, et al, versus the City of New Orleans, et al, case # 80-15672, Civil District Court for the Parish of Orleans

As a result of several of the aforementioned legal proceedings, the City of New Orleans has been obligated to pay amounts totalling Eight Hundred Fourteen Thousand ($814,-000) Dollars to the respective litigants. (Cheatham — $800,000; Winston — $12,500; and Allen — $1,500)

Additionally, it is my understanding, you are the focal point of further pending litigation, filed and unfiled. Considering all of the aforementioned incidents, the cash settlements exacted and the possibility of yet future actions, this Department is placed in an untenable position.

The number and similarity of complaints lodged against you tends to indicate an inability on your part to effectively deal with the public in a satisfactory manner.

Moreover, the notoriety which has accrued to you through your past actions has rendered your ability to function within the Department ineffective at best, as you cannot be assigned to street duty in that any questionable action you might take would draw negative criticism and acute scrutiny, regardless of the circumstances surrounding the incident.

Your conduct, therefore, as outlined above constitutes violations of Rule 4., paragraph 4., subparagraph a., relative to Neglect of Duty. This Rule reads as follows:

RULE 4. PERFORMANCE OF DUTY

4. NEGLECT OF DUTY

a. Each member, because of his grade and assignment, is required to perform certain duties and assume certain responsibilities. A member’s failure to properly function in either or both of these areas constitutes a neglect of duty.

In particular, and most importantly, your conduct is contrary to the standards of service as prescribed by Rule IX, Section 1., paragraph 1.1 of the Rules of the Civil Service Commission for the City of New Orleans in that as previously noted, the number and similarity of complaints lodged against you indicates an inability on your part to effectively deal with the public in a satisfactory manner, and thusly, you are unable to perform the duties of a police officer. This Rule states as follows:

RULE IX

DISCIPLINARY ACTIONS Section 1. MAINTAINING STANDARDS OF SERVICE:

1.1 When any regular employee in the classified service is unable or unwilling to perform the duties of his position in a satisfactory manner or has committed any act to the prejudice of the service, or has omitted to perform any act that it was his duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service. The action may extend to: (1) removal from the service, (2) retirement, (3) reduction in pay to the next lower rate in the range for the class, (4) demotion to any position of a lower class that the employee is deemed by the appointing authority and the Director to be competent to fill, (5) suspension without pay not exceeding in the aggregate one hundred twenty (120) days in any period of twelve (12) consecutive calendar months, (6) fine, (as amended February 9, 1955 & August 9, 1979.)

To afford you an opportunity to present facts in mitigation, or to explain your conduct, a hearing was held on June 10, 1981. At that hearing you offered nothing which would tend to mitigate, justify or explain the collective nature of the aforementioned violations as heretofore outlined. To continue to utilize your services in any capacity within this Department would not be in its best interests, due to the aforementioned facts and circumstances. Therefore, your past pattern of conduct dictates a need for separation from service, not only for the best interests of this Department, but in order to insure continued public confidence in the Department.

Accordingly, effective June 11, 1981 your employment with the New Orleans Police Department, City of New Orleans, is terminated.

You are furthermore advised you have a right of appeal; that this decision may be appealed to the Civil Service Commission for the City of New Orleans.

Very truly yours, s) Henry M. Morris HENRY M. MORRIS Superintendent of Police

HMM:KRB:blc

cc: Department of City Civil Service NOPD Personnel Division NOPD Payroll Section NOPD Credit Union Major Offense Bureau Commander, Robbery Division Internal Affairs Division

      . The letter of June 11, 1981 is annexed in its entirety and is made an integral part of this decision. Although quite lengthy, the Court feels its contents are necessary to fully understand the reasons set forth herein.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    Bill L. AILSTOCK v. James J. HAMITER, et ux.
    No. 14961.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.

      Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiff-appellant.
    Hargrove, Guyton, Ramey & Barlow by Billy R. Pesnell, Shreveport, for defendant-appellee James J. Hamiter.
    James E. Franklin, Jr., Shreveport, for defendant-appellee Jeannine Hamiter.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

This is an action for specific performance of a contract. The plaintiff is Bill Ailstock. The defendants are James Hamiter and Jeannine Hamiter. Ailstock appeals a judgment sustaining Jeannine Hamiter’s exception of no cause of action and rejecting his demands against her. Hereinafter James Hamiter will be referred to as “Hamiter” and Jeannine Hamiter will be referred to as appellee.

The petition alleges that on September 28, 1979, defendants were husband and wife; that plaintiff and Hamiter entered into a contract on that day; that the contract granted to plaintiff for one year an option to buy certain described immovable property; that plaintiff timely exercised that option and so notified Hamiter in writing; that Hamiter could not immediately convey the property and was allowed additional time to do so; and that Hamiter failed to convey the property by the conclusion of the additional time. Annexed to and made a part of the petition was a copy of the agreement between plaintiff and Hamiter which was a lease containing an option to purchase the leased property.

Appellee filed an exception of no cause of action. The grounds for the exception were that plaintiff had not exercised the option; that the property in question was partly community and her concurrence in the extension of the option past January 1, 1980 was not obtained; that Hamiter and plaintiff breached fiduciary obligations to her; that the option was void for want of consideration; that the extension of the option was void for want of consideration and that the option was void for inspecificity as to the terms of payment. Appellee later additionally urged that the contract was unenforceable because of the unconstitutionality of LSA-C.C. art. 2404, now repealed, which gave the husband alone power to deal with community property.

Hamiter answered the petition and admitted its allegations. Further answering he averred that his failure to convey the property was due to complication arising from domestic litigation between himself and appellee.

The district judge concluded that the option was invalid for inspecificity of the terms of payment and sustained the exception without considering the other grounds urged as reasons for its invalidity. Plaintiff appealed. On appeal Hamiter joins plaintiff in urging that the judgment of the district court be reversed.

The exception of no cause of action tests whether the law affords any remedy under the allegations of the petition and for its determination all well pleaded facts are accepted as true and all doubts are resolved in favor of the sufficiency of the petition. Haskins v. Clary, 846 So.2d 193 (La.1977); Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1st Cir. 1980); Gustin; supra. The appellee’s contention that the option was not exercised is directly contrary to the allegations of the petition. As the factual allegations of the petition are presumed true for the purpose of the exception of no cause of action, contrary factual contentions such as this do not support sustaining the exception.

The contention that the contract is void because Hamiter and Ailstock breached fiduciary obligations owed appellee does not address the allegations of the petition, instead it is a factual allegation of a possible defense. As such, this contention does not support an exception of no cause of action because it does not attack the sufficiency in law of the petition. Parks v. Winnfield Life Insurance Company, 336 So.2d 1021 (La.App.3d Cir. 1976), writ refused 339 So.2d 351 (La.1976).

Appellee also contends that her consent, which was not obtained, was required for extension of the option past January 1, 1980, and, further, that the extension of the option was void for want of consideration. The contentions ignore the law and the allegations of the petition.

Ailstock alleged that he exercised the option during its original term. After an option is exercised it becomes a binding contract to buy and sell. Herring v. Pollock, 339 So.2d 510 (La.App. 2d Cir. 1976). Appellant alleged not that the option was extended but that Hamiter was given additional time in which to convey the property.

Thus, appellee’s contentions concerning the extension of the option are contrary to the factual allegations of the petition and their legal effect. As such, these grounds do not support the exception of no cause of action.

The next ground set out by appellee is that the option is void for lack of consideration.

The option was granted in a contract of lease between appellant and Hamiter. The lease provides sufficient consideration for an option to purchase contained in the lease agreement. Mitchell v. Bertolla, 397 So.2d 56 (La.App. 2d Cir. 1981), writ denied 400 So.2d 669 (La.1981); Farris v. Interstate Enterprises, Inc., 270 So.2d 230 (La. App. 1st Cir. 1972), writ refused 272 So.2d 380 (La.1973). This contention does not provide a basis for sustaining the exception.

Appellee contends the option is void for inspecificity as to the terms of payment. The district judge agreed, relying on Bland v. Conner, 25 So.2d 815 (La.App. 2d Cir. 1946), and McMikle v. O’Neal, 207 So.2d 922 (La.App. 2d Cir. 1968). We find Bland and McMikle distinguishable.

The contract involved here provides “. . . Ailstock will pay Hamiter the sum of $43,-500.00 as the purchase price of the property.” When a contract specifies no terms for payment it means full payment in cash. Succession of Witting, 121 La. 501, 46 So. 606 (1908). Thus, the terms of payment under this contract are cash in full.

In Bland the agreement between the parties specifically provided that terms were to be set out in a later agreement. The option involved in McMikle provided “Grantor may reserve the right to accept only 30 percent down payment and the balance secured by Vendor’s Lien, all this to be agreed on by the parties ...” The contracts in both Bland and McMikle, in contrast to the one involved here, showed that some terms of payment, other than cash in full, were intended but failed to specify those terms,

Appellee’s final contention is that the option is invalid because the now repealed former Article 2404 of the Civil Code, which gave Hamiter, as husband, authority to enter the contract granting it, is unconstitutional.

This contract was entered into by Ail-stock and Hamiter on September 28, 1979. On December 12, 1979, LSA-C.C. art. 2404 was held unconstitutional in Kirchberg v. Feenstra, 609 F.2d 727 (5th Cir. 1979). The Fifth Circuit explicitly limited its decision to prospective effect only. This court recognized that and so applied Kirchberg in Crook v. White, 393 So.2d 782 (La.App. 2d Cir. 1981).

Since our decision in Crook, Kirchberg has been affirmed by the supreme court at 450 U.S. 455, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981). The supreme court declined to pass on the retroactivity of the decision. Two justices concurred to point out that the decision did not apply to any mortgage, other than the one there involved, that was executed before December 12, 1979, the date of the Fifth Circuit decision.

With respect to retroactivity the Fifth Circuit said:

“We apply our decision today prospectively only, because a holding of retroactive invalidity of article 2404 would create a substantial hardship with respect to property rights and obligations within the State of Louisiana. The Supreme Court has said:
The actual existence of a statute, prior to [a determination of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions • of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination.
Chicot County Drainage Dist v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318-319, 84 L.Ed. 329 (1940). The concept of the husband as head and master of the community of gains has been a part of Louisiana law since 1808, Louisiana Civil Code of 1808, art. 66, and before that first codification of Louisiana law it was apparently part of the Spanish Civil Law effective in that region at the time of the Louisiana Purchase, see, e.g., Pugh, The Spanish Community of Gains In 1808; Sociedad De Gananciales, 30 La.L. Rev. 1, 13 (1969). Since our decision could produce substantial inequitable results if applied retroactively, we avoid that ‘injustice or hardship’ through a holding of nonretroactivity. Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 77 L.Ed. 360 (1932).” Id. 609 F.2d 735-736.

As previously indicated in Crook, we are in accord with the Fifth Circuit’s reasoning. The unconstitutionality of repealed LSA-C.C. art. 2404 should not be given retroactive effect.

The district judge erred in sustaining the exception of no cause of action. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with the views expressed herein. All costs are taxed against appellee.

REVERSED and REMANDED.

      . The pleading was entitled “Exception of No Cause and No Right of Action, and Plea of Estoppel.” Despite its style the exception does not address whether plaintiff belongs to the particular class to which the law grants a remedy and, thus, it is not an exception of no right of action. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir. 1979).

      . See e.g. Hamiter v. Hamiter, 414 So.2d 1379 (La.App. 2d Cir. 1982).

      . Plaintiff makes no assignments of error but generally contends that the various grounds urged by appellee did not justify sustaining the exception.

      . See also Succession of Viola Alexander Clivens, 406 So.2d 790 (La.1982), wherein the Louisiana Supreme Court held that the Succession of Brown, 388 So.2d 1151 (La.1980), which had declared C.C. art. 919 unconstitutional because it denied equal protection to illegitimates, would have only prospective effect as to third parties and testate successions.


author: PRICE, Judge.

text:
    Jimmy WOODS, III, Charles W. Woods, Jr., Wilma Woods Ficklin and Rosie M. Woods Monroe, Plaintiffs-Appellees, v. Rosie COOPER and the City of Tallulah, Defendants-Appellants.
    No. 14963.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.

      Samuel Thomas, Tallulah, for plaintiffs-appellees.
    Raymond Cannon, Tallulah, for defendants-appellants.
    Before PRICE, HALL and SEXTON, JJ.
   PRICE, Judge.

This is an appeal from a judgment granting a directed verdict. Plaintiffs, Jimmy Woods, III, Charles W. Woods, Jr., Wilma Woods Ficklin, and Rosie Woods Monroe, brought a possessory action against defendants, Rosie Cooper and the City of Tallulah. The trial court rendered judgment in favor of plaintiffs after defendants moved for a directed verdict. Defendants appeal this ruling.

On July 22, 1980, plaintiffs filed a posses-sory action over immovable property known as Lot 16 of Blair’s Addition to the Village of Tallulah. Plaintiffs alleged they had possessed this property as owners quietly and without interruption for more than one year prior to August 1, 1979, and had possession of the property on the date of the disturbance. Plaintiffs alleged that on August 1, 1979, defendants disturbed plaintiffs’ possession by the construction of a road through the center of plaintiffs’ property. Plaintiffs claimed that less than one year had elapsed from the date of the disturbance and the institution of the action.

At trial, Mr. Woods testified that he first became aware of the disturbance in July 1980. However, plaintiffs’ witness, Reverend Henry Toston, testified that he notified Woods of the disturbance around June 1979.

At the close of plaintiffs’ case, the defendants moved for a directed verdict alleging that the evidence was clear the posses-sory action was not instituted within one year from the notice of the disturbance as required by LSA-C.C.P. art. 3658.

The trial court rendered judgment in favor of plaintiffs ordering that plaintiffs be restored to possession and granted damages to plaintiffs for expenses and loss of use. Defendants were ordered to restore the property to its original condition prior to the construction of the road.

In the written reasons for judgment, the trial court further held that the defendants’ claim of prescription could not be raised in briefs.

The primary issue on appeal is whether the trial court erred in granting defendants’ motion for a directed verdict in favor of plaintiffs.

LSA-C.C.P. art. 1810 provides in pertinent part:

“In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

Cuccia v. Cuecia, 394 So.2d 840 (La.App. 4th Cir. 1981), at p. 841, states:

“A directed verdict is properly granted on defendant’s motion, when, at the completion of plaintiff’s evidence, the trial judge determines that plaintiff has shown no right to relief.”

It is the opinion of this court that the trial court erred in granting the directed verdict in favor of plaintiffs upon defendant’s motion at the close of plaintiffs’ case. The statute specifically provides that the verdict may be granted in favor of the defendant-moving party upon completion of the plaintiff’s case or the court may decline to render judgment until the close of all the evidence. The statute does not permit judgment in favor of a plaintiff before the defendant presents his case. The granting of the verdict effectively denied defendants’ right to present their case and have their day in court. This offends all notions of justice. Gunter v. Plauche, 399 So.2d 727 (La.App. 1st Cir. 1981).

Further, the motion for a directed verdict was a proper procedural vehicle by which to assert defendants’ claim that the possessory action was not instituted timely. Defendants have not raised a peremptory plea of prescription but rather allege plaintiffs have failed to meet their burden of proof under LSA-C.C.P. art. 3658(4).

For these reasons, the judgment of the trial court is REVERSED and REMANDED for further proceedings consistent with this opinion, with costs of this appeal assessed to plaintiffs. Assessment of all other costs shall await final disposition of this case.


author: HALL, Judge.

text:
    E. P. BERNELLE, Windle R. Gordon, Joseph S. Lyons, Jessie Conville, Mrs. John D. Conville, Levon Smith, Doyle A. Nelson and Etta Davenport, Plaintiffs-Appellees, v. TOWN OF RICHWOOD, Defendant-Appellant.
    No. 14966.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.
    Rehearing Denied Oct. 29, 1982.
    Hunter & Scott by Louis G. Scott, Monroe, for defendant-appellant.
    Clyde Lain, II, Monroe, for plaintiffs-ap-pellees.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   HALL, Judge.

The Town of Richwood appeals from a judgment nullifying its ordinance purporting to annex an area described as Richwood Sewage District No. 3. For reasons set forth in this opinion we affirm the judgment of the district court.

The ordinance was adopted on October 20,1980. Plaintiffs filed suit contesting the validity of the ordinance on March 27,1981. The town filed an exception claiming plaintiffs’ action was barred since the action was brought well after the 30-day period provided by LSA-R.S. 33:175. The exception was denied, and after trial judgment was rendered declaring the ordinance null and void because of the town’s failure to comply with the requirements of LSA-R.S. 33:172 A and B and 178 in several substantial and material respects. ■

On appeal the town does not question the trial court’s finding that the statutory provisions governing annexation by the petition method were not complied with. Appellant’s only specification of error is that the trial court erred in overruling its exception raising the issue of prescription or per-emption. Thus, the only issue presented for consideration on appeal is whether plaintiffs’ action was timely.

LSA-R.S. 33:173 provides that an annexation ordinance shall not become operative until 30 days after it has been published once in a newspaper having general circulation in the municipality, or if there is no newspaper published in the municipality or having general circulation therein, after copies of the ordinance are posted in three public and conspicuous places in the municipality. LSA-R.S. 33:174 provides that any interested citizen of the municipality or of the territory proposed to be annexed may, within the 30-day period before the ordinance becomes effective, file suit in the district court to contest the proposed extension of the corporate limits, and the question shall be whether the proposed extension is reasonable. In addition to attacking the ordinance on the ground of unreasonableness, the validity of the ordinance may be contested on the ground that the ordinance was passed without compliance with the requirements of the statute. Grice v. Mayor and Council of Morgan City, 164 So.2d 370 (La.App. 1st Cir. 1964).

LSA-R.S. 33:175 provides that if no suit is filed within the 30-day period the ordinance shall then become operative and cannot be contested or attacked for any reason or cause whatsoever.

Appellees argue that the 30-day period of Section 175 applies only to a suit brought under Section 174 attacking the reasonableness of the ordinance and does not apply to a suit attacking the validity of the ordinance for noncompliance with the statutory requirements. Appellant argues that Section 175 bars a suit brought after the 30-day period attacking the ordinance for any reason or cause whatsoever.

It is not necessary for this court to decide this precise issue because, assuming the applicability of the 30-day limitation period to this action attacking the validity of the ordinance for failure to meet statutory requirements, we find that the 30-day period never commenced to run because of lack of publication or posting.

Under Section 173 the 30-day period commences after the ordinance has been published once in a newspaper having general circulation in the municipality or after the ordinance is posted in three public and conspicuous places in the municipality if there is no newspaper published in the municipality or having general circulation therein. Normally, the party attacking an annexation ordinance has the burden of proving its unreasonableness or invalidity. Hider v. Town of Lake Providence, 91 So.2d 387 (La.App. 2d Cir. 1956). However, because defendant pled prescription or peremption, it bears the burden of proving the facts necessary to sustain its plea. Montgomery v. Breaux, 297 So.2d 185 (La.1974). Upon review of the evidence, we find that defendant did not discharge its burden. Specifically, defendant failed to prove that the ordinance was published or posted in accordance with the statute so as to trigger commencement of the 30-day period.

The only reference to publication in the record is contained in the defendant’s answers to interrogatories and in the affidavit of the mayor supporting the defendant’s motion for summary judgment. Both documents state that the ordinance was published and posted but without any details as to the manner of publication or posting. Publication or posting was not mentioned in the mayor’s testimony at trial. The town’s former clerk testified that he could not remember whether publication had taken place or not. The best evidence of publication, a copy of the notice and certificate of publication, was not presented.

We therefore conclude that defendant failed to discharge its burden of proving publication or posting. Without publication or posting the 30-day period in which an action contesting or attacking the ordinance could be brought never commenced to run and, therefore, this action was filed timely.

The judgment of the district court declaring the ordinance null and void is affirmed at appellant’s costs.

Affirmed.


author: FRED W. JONES, Jr., Judge.

text:
    Bobby R. ADAMS, Sr., et al., Plaintiffs-Appellants, v. The TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees, Royal Insurance Company, Defendant-Third Party Plaintiff-Appellant.
    No. 14971.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.
    Writ Denied Nov. 19, 1982.
    Kitchens, Benton, Kitchens & Pearce by John B. Benton, Jr., Minden, for plaintiffs-appellants, Bobby R. Adams, Sr., et al.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendant-third party plaintiff-appellant, Royal Ins. Co.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman and Kelly Mangum, Shreveport, for third party defendant-ap-pellee, J. Weingarten, Inc.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   FRED W. JONES, Jr., Judge.

This wrongful death action was brought by the surviving husband and children of Lucille Roy Adams who allegedly sustained fatal injuries on a J. Weingarten, Inc. (“Weingarten”) parking lot in Shreveport when struck by a car driven by Jeanette Y. Johnson. Named as defendants were Miss Johnson and her insurer, Travelers Insurance Company; Weingarten; Toyota Motor Company; Yokem Toyota, Inc.; and Royal Globe Insurance Company (“Royal Globe”), uninsured motorist carrier of the Adams’ vehicle parked on the Weingarten parking lot.

Plaintiffs alleged that Weingarten’s negligence consisted of failure “to provide its invitees with a safe area in which to walk to and from their automobiles and in designing and maintaining its parking lot without designating and providing lanes for its pedestrian traffic which would prevent automobiles from striking its invitees.”

Royal Globe filed a third party demand against the decedent and the original defendants alleging that these parties were solidarily liable to third party plaintiff for any judgment rendered against it in this matter. It adopted the allegations of the original plaintiffs with reference to the negligence of Weingarten.

Weingarten filed motions for summary judgment directed at the main demand and the third party demand, asserting that the fatal accident was due solely to the negligence of Miss Johnson; that Weingarten breached no legal duty owed to the decedent; and, consequently, there remained no genuine issue of material fact. The deposition of Miss Johnson was submitted in support of these motions.

Plaintiffs filed a brief in opposition to the motion for summary judgment and attached thereto an affidavit executed by Robert R. Canfield, a traffic engineer, who stated that the Weingarten parking lot was in a hazardous and unsafe condition for pedestrian traffic because:

“(a) The parking lot was so designed as to require all persons parking to cross a major movement aisle.
(b)There were no provisions (raised sidewalks) to allow for the safe movement of pedestrian traffic.
(c) There were no markings or signs to indicate to a motorist specific areas where pedestrians would cross traffic aisles, and
(d) The design of the area directly in front of the stores is conducive to more motorists and vehicular traffic than is safe and desirable.”

After hearings, the district judge sustained the motions for summary judgment, dismissing the actions as to defendant Weingarten, reasoning as follows:

“Considering the present state of the art with regard to the economic designing of a retail food and grocery outlet, we find nothing that Weingartens might have done under these circumstances to have prevented the accident.”

Plaintiffs in the main demand and the third party plaintiff appealed these judgments. *

The granting of a motion for summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits filed, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La.Code of Civil Procedure Article 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978).

The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Chaisson v. Domingue, supra; Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977).

Summary judgment is not to be used as a substitute for a full trial of a controverted factual issue which is material to the decision of the case. The likelihood that a party will be unable to prove his allegations at trial does not constitute a basis for rendering a summary judgment. Rougeau v. Sears, Roebuck & Co., 383 So.2d 141 (La.App. 3rd Cir. 1980); LeBlanc v. Landry, 371 So.2d 1276 (La.App. 3rd Cir. 1979); Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir. 1976).

In this case, plaintiffs made factual allegations relating to the defective design of Weingarten’s parking lot — specifically, that it did not provide lanes for pedestrian traffic. Miss Johnson’s deposition, submitted in support of the motions for summary judgment, simply gave her explanation of how the accident occurred (failure of brakes as she was backing her vehicle) and contained no information relative to the layout of the parking lot. On the other hand, the traffic engineer’s affidavit, filed by plaintiffs in opposition to the summary judgment motion, supported their assertions concerning the absence of pedestrian lanes.

Since there remains this genuine issue as to a material fact, we find that the trial judge erred in sustaining the motions for summary judgment. Only after the relevant facts are established would it be appropriate to consider, based upon those facts, whether Weingarten breached a legal duty owed to the decedent.

For these reasons, we reverse the judgments of the district court sustaining the motions for summary judgment; overrule the motions for summary judgment; and remand the case to the district court for further proceedings consistent with this opinion. Costs of appeal are assessed to appellee.


author: MARVIN, Judge.

text:
    Terry Lynn MAHLEN, Plaintiff-Appellee, v. Rhonda Renee Duggan MAHLEN, Defendant-Appellant.
    No. 14972.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.

      William D. Hall, Shreveport, for defendant-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Samuel P. Love, Jr., Shreveport, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES, and FRED W. JONES, JJ.
   MARVIN, Judge.

From a judgment awarding a legal separation on the grounds of mutual fault, the wife appeals, contending that she was not guilty of fault which would constitute an independent ground for separation and that she should have been awarded judgment because of the husband’s abandonment.

From the husband’s own testimony, we readily find that he abandoned his wife without cause. CC 138(5), CC 143. Quinn v. Quinn, 412 So.2d 649 (La.App. 2d Cir. 1982). Even when viewed most favorably in support of the judgment, the record does not support a finding of mutual fault on the part of the wife. CC 141, 138(3). Accordingly, we amend and recast the judgment and, as amended, we affirm the judgment of separation.

The 21-year-old husband and the 16-year-old wife married on May 12,1981, when she was six or seven months pregnant. The child was born July 26 and the husband and wife ceased living together on Sunday, August 30, 1981.

After an argument on that Sunday morning about her telephoning his friends and checking up on him, the wife gathered some clothes and told him that she was going to her mother’s. He said that he “took it [that] she was leaving for good.” He then left the family apartment and, after spending the day with friends at the race track, returned to the home of his parents. At his instruction, they went to the apartment about 9:00 p.m. and told the wife that they had come to pick up some of his clothes and to inform her that he desired to end the marriage. At the wife’s suggestion,- she and his mother then drove to his parent’s home to allow the wife to ask the husband to resume the marital relation and to return to the apartment. He admits that he refused, saying, “no way ... It never would work.” He also admits that his wife again asked him to “move back with her” and that he again refused on an occasion when they happened to meet at a mutual friend’s house after they had separated.

The wife’s affirmation from the witness stand on January 15, 1982, that she wanted a separation “today in court” does not support the conclusion of the trial court that “both .. . have said they do not want to live together any more ...” This conduct by the husband constitutes cruel treatment, as she alleged, and abandonment, as she showed, without objection by him. CC 138, CC 143.

In reasons for judgment the trial court found

“[T]he Court feels like there has been sufficient evidence placed in the record that the fault is the part of both parties. While both parties have some valid defenses to what they have done, there is also an obvious question of lack of understanding of the marital obligation and lack of maturity to the extent that the Court feels like forcing these two people to live together, and both of them have said they do not want to live together any more, certainly is not correct in any issues as between them. That says nothing of the fact that there is a paternity suit, which is, as I have mentioned earlier, if it were nothing else, would almost cause the living together insupportable when they have got a paternity suit between them, which is at issue.”

The fault required for a CC 141 mutual fault separation is conduct which would constitute an independent ground for separation under Civil Code Article 138. Adams v. Adams, 389 So.2d 381 (La.1980); Miller v. Miller, 398 So.2d 1162 (La.App. 2d Cir. 1981). That conduct must be such that it would render further living together insupportable. CC 138(3). This fault has also been defined as “unjustifiable conduct on the part of either husband or wife which so grievously wounds the mental feelings of the other, or such as in any manner utterly destroys the legitimate ends and objects of matrimony.” Guin v. Guin, 378 So.2d 1022 (La.App.2d Cir. 1979). See also Krauss v. Krauss, 163 La. 218, 111 So. 683 (La.1927).

The husband’s contention below and here concern the “interference” in the marriage by the wife’s parents and the failure of the wife to cook supper for him every night and to keep a clean and orderly home.

There is no evidence that the wife sided with her parents against the husband even should we assume “interference”. Here the wife’s father employed the husband, raised his salary from about $160 before the marriage to about $400 per week after the marriage, and allowed him the use of a truck owned by the father’s business. Some of the advice or chastisement of the husband concerned use of the business truck. Other advice and chastisement of her parents concerned financial matters and was directed at both litigants. Solely because one spouse does not get along with the parent(s) of the other does not constitute grounds for separation. See Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir. 1978).

While it is shown that the wife, like the husband, “accepted” in the broadest sense the perhaps unwanted advice and chastisement and the largesse of her parents (such as the payment of two months rent), it is not shown that either offering was solicited and encouraged moreso by the wife than by the husband. Even if this be arguably deemed to be “interference” or fault on the part of the parents, that fault is not always and automatically visited upon the child. That child’s fault (siding with his or her parents or encouraging “interference”), as a ground for separation, must be shown by the complaining spouse of that child. It has not been shown here.

Admittedly, the wife did not prepare supper every night for her husband and did not maintain a spotless apartment. The husband, however, acknowledges that she did cook supper about twice a week. He complained to her about the way she cooked. It is also preponderately shown that she almost daily made up the bed and occasionally did some other housecleaning work in the apartment. The condition of the wife may be found to attenuate her failure to achieve the housekeeping and homemaking perfection desired of her by the husband. Gipson v. Gipson, 379 So.2d 1171 (La.App. 2d Cir. 1980). Considering this wife’s age, inexperience, and her pre- and post-partum condition during the short existence of the husband and wife relationship, we must find that the trial court erred in concluding that she, too, was guilty of independent fault under these circumstances.

The lawful cause sufficient to defeat a claim for abandonment was defined in Quinn, supra, as follows:

“Lawful cause justifying withdrawal from . . . the common dwelling is substantially equivalent to a cause giving the withdrawing spouse grounds for a separation under CC 138. Mere friction, dissatisfaction or incompatibility, however intense, are not enough to constitute lawful cause.” 412 So.2d at p. 652.

The wife’s conduct here did not afford the husband cause to abandon his wife or grounds for a separation under CC 138. Moreover, the husband refused the wife’s requests that he return to the marriage.

Under these circumstances, we find that the trial judge erred in finding the wife mutually at fault and we amend the judgment insofar as it finds the wife to be at fault. The husband’s conduct constitutes sufficient grounds for a separation in favor of the wife for abandonment, without cause, and we affirm the judgment insofar as it relates to the husband’s fault. The judgment is amended to grant the separation in favor of the wife, the pendente lite awards are continued, and as thus amended and at the cost of the appellee-husband, the judgment of separation is affirmed.

AMENDED, RECAST, AND AFFIRMED.

      . The wife became ill after the husband and his parents left the apartment on that Sunday night. She was taken to the emergency room of a hospital where she was treated and given a sedative. She then spent the rest of that night with her parents but returned to the apartment and stayed there for several hours on Monday afternoon, awaiting, she said, the possible return of her husband.

      . From his father-in-law, the husband asked for an increase in pay to make “ends meet”, borrowed money to pay installment notes, and accepted other things such as the payment of two months rent on the apartment. The wife occasionally asked her father for money for groceries and gasoline and on one occasion asked her grandmother for grocery money.
      The husband gave the wife iess than $200 during the marriage to run the household, and explained that there was no “need” to give her money when he knew she could get it from her parents.


author: FRED W. JONES, Judge.

text:
    Cynthia BOOTH, Plaintiff-Appellant, v. POTASHNICK CONSTRUCTION COMPANY and State of Louisiana, Through the Department of Transportation and Development, Defendants-Appellees.
    No. 14974.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.
    Rehearing Denied Oct. 29, 1982.
    Writ Denied Dec. 20, 1982.

      Piper & Brown, Inc. by Robert E. Piper, Jr., Shreveport, for plaintiff-appellant.
    John W. King, Baton Rouge, for State of La., through the Dept, of Transp. and Development, defendant-appellee.
    Before JASPER E. JONES, FRED W. JONES and NORRIS, JJ.
   FRED W. JONES, Judge.

Plaintiff appeals a judgment dismissing her suit against the State of Louisiana, through the Department of Transportation and Development (“State”), for damages resulting from injuries sustained when plaintiff drove her car from the hard surface of a state highway onto an excavated shoulder in a highway construction zone. It is asserted that the trial judge erred in (1) finding that the defendant State was free of negligence because it had properly installed and maintained warning signs in the construction area and (2) finding that, though the doctrine of strict liability was applicable, plaintiff’s “victim fault” barred her recovery.

For the reasons hereinafter set forth, we affirm.

In March 1977 the Potashnick Construction Company, under a contract with the State, began work on an interloop or 1-220 construction project in south Shreveport. This project primarily involved building a bridge for the Interloop expressway over Louisiana Highway 171 (Mansfield Road) and widening the shoulders of the state highway. The latter work required excavation of the shoulders of the highway for a distance of .33 miles, or about 1700 feet.

Highway 171 is a heavily traveled thoroughfare in the described area of Shreveport. Prior to the construction in question it was a four lane hard surfaced road, with two lanes for northbound traffic and two lanes for southbound traffic. The traffic lanes were wider than usual, measuring 13% feet width per lane rather than the customary 12 feet width.

At about 5:40 o’clock on the morning of October 23, 1978, Cynthia Booth, a 20 year old female, was alone in her car driving south in the outer lane of Highway 171 at a speed of about 45 miles per hour, traveling to her place of employment, approaching the north limits of the above described construction zone. Miss Booth had never driven down this highway before, nor did she have prior knowledge of the construction work in progress. At that particular time the highway shoulders had been excavated, along the .33 mile project length, to a depth that created a drop-off of some seven inches below the road hard surface.

As Miss Booth entered the construction zone, traveling in the outer southbound traffic lane which at that point gradually curved west or to her right, the right front tire of her vehicle left the paved surface of the highway, dropping off into the excavated area of the road shoulder. Reacting to this development, Miss Booth turned her automobile back to the left, traversed both southbound traffic lanes and turned over twice in the grassy median. As a result of the accident, Miss Booth sustained severe, disabling injuries.

This action for damages was filed by Miss Booth against Potashnick Construction Company, its insurer, and the State. After a settlement was effected with the construction company and its insurer, the suit was dismissed as to these defendants. The case proceeded to trial on the merits against the State in October 1981.

In oral reasons for judgment the trial judge found that the State, because it had properly positioned and maintained signs warning of this construction work, was not guilty of negligence which caused Miss Booth’s accident. However, the trial court then proceeded to find the State strictly liable under La. Civil Code Article 2317, but denied recovery to plaintiff because of her fault.

Preliminary to discussing the applicable law, we note the obvious — that this case involves a road shoulder excavated in connection with a construction project and not a road shoulder which became hazardous because of faulty maintenance.

Adverting now to pertinent legal principles, it is axiomatic that the State has a duty to maintain its highways in a reasonably safe condition for public travel, which duty encompasses the maintenance of highway shoulders in a safe condition. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Brandon v. State, through Dept. of Highways, 367 So.2d 137 (La.App. 2d Cir. 1979). As we pointed out in Brandon:

“[RJecognizing the necessity of construction work in the maintenance of highways and that hazards will often necessarily exist during the course of construction, this duty is relaxed in connection with construction activities according to the reasonable necessities of the circumstances. The Department’s [State Highway Department] duty during the course of construction is usually discharged by the giving of adequate warning. What constitutes adequate warning depends on the nature of the hazard to be guarded against.”

It was noted in Von Cannon v. State, Dept. of Highways, 306 So.2d 437 (La.App. 3rd Cir. 1975) that:

“[T]here is no hard and fast rule as to the types of warnings or safeguards [against dangerous highway conditions]. Warnings should be sufficient to alert the ordinary, reasonable motorist, having in view the probable traffic, the character of the road and the use reasonably to be anticipated (citation omitted). Safeguards should be commensurate with the danger.”

The critical question here is: did the State fulfill its duty to exercise reasonable care in warning motorists of the dangerous road condition in this construction zone? See Am.Jur. (2d), Highways, Streets, and Bridges, § 397, pp. 792, 793.

According to witnesses testifying on behalf of the State, at the time of the accident the following warning signs faced Miss Booth as she approached from the north and then entered the construction zone: at a distance of about 2,000 feet from the beginning of the project a “Road Construction Ahead” sign on both sides of the southbound lanes; about 500 feet further south a “Road Construction 1500 Feet” sign, followed by “Road Construction 1000 feet” and “Road Construction 500 Feet” signs; at the beginning of the actual project, large signs, known as wing barricades, proclaiming the distance for which the project extended along the highway and stipulating a speed limit of 45 miles per hour; along the excavated area and marking the edge of the road, temporary warning devices consisting of delineators and sawhorse type barricades with flashing yellow lights.

On the other hand, plaintiff stated that the only warning sign she saw was the “Road Construction 1500 Feet” sign. In addition, she presented an array of witnesses who denied having observed, during the relevant time period, certain of the warning signs assertedly posted by the State.

In its findings of fact, the trial court concluded that, at the time of the accident, the permanent advance warning signs, a “low shoulder” sign and the delineators were in place, warning motorists of the hazardous road condition. Since this determination was based primarily upon an assessment of witness credibility, a function uniquely within the province of the trial judge, we cannot say that he was clearly wrong in this fact-finding. Consequently, we agree with the trial judge that the State did not breach its duty to take reasonable measures to warn motorists of the dangerous highway condition. Therefore, the State was not guilty of negligence in this case.

As we have pointed out, after disposing of the negligence issue, the trial judge proceeded to find that the strict liability doctrine of Article 2317 governed the State’s responsibility here because the thing causing the damage was in the State’s custody, the excavated shoulder constituted a vice, and plaintiff’s injuries were caused by the defect.

We do not agree with the trial judge on this strict liability issue. As a predicate for imposition of liability under Article 2317, the plaintiff must prove that “the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect.” Jones v. The City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980).

As Judge Culpepper explained in Goodlow v. City of Alexandria, 407 So.2d 1305, 1308 (La.App. 3rd Cir. 1981), in determining the reasonableness or unreasonableness of the risk, we “should consider the probability and magnitude of the risk balanced against the utility of the thing alleged to be defective.”

Does the excavation of a road shoulder in connection with a highway construction project create an unreasonable risk of harm to the public, thereby making the excavation a vice under Article 2317? In view of the obvious necessity of such road construction projects, we answer in the negative. Although it is conceivable that under certain circumstances the manner in which a road construction project is carried out might create an unreasonable risk of harm to motorists, a blanket holding that all highway construction projects result in road defects, automatically requiring the application of strict liability under Article 2317, would be patently unreasonable. For example, under such a ruling the function of placing warning signs, rather than being a part of the State’s positive duty to negate negligence, would simply be to prove victim fault as a bar to recovery of damages — because he ignored those warnings.

Consistent with this reasoning, we conclude that Sinitiere v. Lavergne, supra, and Rue v. State, Dept. of Highways, 372 So.2d 1197 (La.1979), in which cases the State was deemed liable for failing to maintain highway shoulders in a safe condition, are inap-posite.

We point out, however, that even if strict liability applied in this case, the record amply supports the trial judge’s characterization of plaintiff’s behavior as constituting “victim fault” which precluded her recovery. This determination by the trial court was based upon the finding of fact (not clearly erroneous) that plaintiff’s driving of her car from the road’s hard surface into the excavated shoulder area “required a positive action of hers to go off the inside where the forces [gravitational or centrifugal] were the other way ... on what was a very wide roadway, considerably wider than the average.”

For these reasons, we affirm the judgment of the trial court, at appellant’s cost.

      . Art. 2317.
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

      . This is a summary of the substance of the testimony of: Donald Ambercrombie, the State’s “earthwork” inspector on this project; George Garrett, State engineer who checked permanent signs on this job and kept a daily Project Diary which noted any missing signs; Victor Pavloff, Project Engineer for the State; Linuel Graddy, Jr., the contractor’s project superintendent; and Leslie Cornett, Jr., the contractor’s foreman on this job.

      . Gwen Mattingly saw only the “Construction Ahead .33 Miles” sign; Gary Jewell saw only the advance permanent signs announcing “Road Construction 1500 Feet, 1000 Feet, and 500 Feet”, and “Road Construction .33 Miles”; Debra Hensley observed the approach sign stating “Road Construction Ahead”; Gary McCarty saw caution signs as he approached the construction area, the barricade with the construction sign and speed limit sign, and flashing lights at nighttime; Gil Endicott saw only the road construction sign; Maggie Dixon saw only the road construction sign, barrels in the median area and the “Road Construction 1500 Feet” sign; Cheryl Barker — driving her car just ahead of plaintiff — observed only an orange construction sign with some footage figure and a speed limit sign.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Joseph WALTMAN, Defendant-Appellant.
    No. 14978.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.
    Travis M. Holley, Bastrop, for defendant-appellant.
    Joseph Mickel, Asst. Dist. Atty., Bastrop, for plaintiff-appellee.

      Before PRICE, HALL and SEXTON, JJ.
   HALL, Judge.

In this appeal from a judgment declaring defendant to be a habitual offender as defined by LSA-R.S. 32:1472 and prohibiting defendant from driving on Louisiana highways for five years, defendant-appellant urges that this court extend the application of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and State v. Jones, 404 So.2d 1192 (La.1981) to invalidate civil disabilities arising from pri- or misdemeanor convictions based on “non-Boykinized” guilty pleas. Finding that defendant had three DWI convictions prior to the effective date of the Jones decision which was declared to be prospective only, it is unnecessary to decide in this case whether the Jones rule applies to civil disabilities , and we affirm the judgment of the district court.

The state filed a rule to have the defendant declared a habitual offender and to prohibit defendant from driving on Louisiana highways for five years. Three DWI convictions within a five-year period will support a habitual offender proceeding. The record establishes that defendant had pled guilty to four driving while intoxicated charges within the previous five years. On all four occasions counsel was either appointed for or waived by defendant, but on only one occasion was defendant informed of the three-right articulation as required by Boykin and Jones. Three of the four guilty pleas were entered before September 24, 1981.

On appeal defendant asserts that these DWI convictions cannot form the basis for the habitual offender judgment because defendant was not “Boykinized” at any of the four arraignments in question.

State v. Jones, supra, decided September 10,1981, held that whenever a misdemeanor (such as DWI) guilty plea serves as the basis

“. . . for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where it is applicable; (c) his right to confront his accusers, and to make sure that the accused has a full understanding of what the plea connotes and of its consequence.” 404 So.2d at 1196.

Additionally, the court held that the above ruling applies only

“.. . to guilty pleas entered after this decision becomes final." 404 So.2d at 1196. (Emphasis added)

The Supreme Court clarified the retroac-tivity portion of its Jones ruling in State v. Moore, 416 So.2d 1298 (La.1982). In Moore, the Supreme Court limited application of the Jones rule to cases where the guilty pleas in the predicate offenses were entered after September 24,1981, the effective date of the Jones decision.

Thus, misdemeanor guilty pleas entered prior to September 24, 1981 remain viable as predicates for a habitual offender judgment even though the record of such proceedings does not reflect that the defendant was “Boykinized.” The trial court in this case correctly noted in its oral reasons for judgment this distinction relative to the three guilty pleas entered prior to the effective date of Jones. The trial court’s decision is, therefore, correct and is affirmed, at defendant-appellant’s costs.

Affirmed.

      . In State v. Love, 312 So.2d 675 (La.App. 2d Cir. 1975) writ refused 317 So.2d 627 (La.1975) and State v. Free, 321 So.2d 50 (La.App. 3d Cir. 1975) writ refused 325 So.2d 272 (La.1976) involving habitual offender proceedings based on uncounseled guilty pleas, it was held that only the loss of liberty or imprisonment resulting from an uncounseled conviction is invalid; consequential civil disabilities are not, even though the declaration as a habitual offender results in the loss of driving privileges and may possibly lead to additional proceedings of a criminal nature resulting in imprisonment. Because the Boykin requirements are not applicable to the predicate convictions in this case and because the record shows defendant had or waived counsel on each occasion, it is unnecessary for us to reconsider the Love and Free holdings as applied to this case.


text:
    Paul DAY, Plaintiff-Appellant, v. COCA-COLA BOTTLING COMPANY, INC., Southern Farm Bureau Casualty Insurance Company, Western Casualty & Surety Company, Larry V. McManus, and Louis F. Gourgues, Defendants-Appellees.
    No. 14982.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.

      McKinley, O’Neal & Storms by Hodge O’Neal, III, Monroe, for plaintiff-appellant.
    Cotton, Bolton, Roberts & Hoychick by John Hoychick, Jr., Rayville, for Louisiana Farm Bureau Mut. Ins. Co.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

In this action for personal injury arising out of a three-vehicle collision, the plaintiff, who had parked and gotten out of his vehicle when the collision occurred, appeals a judgment rejecting his demands against his uninsured motorist carrier.

The trial court concluded that plaintiff was not injured “while alighting from” his vehicle within the meaning of the policy. We reverse on this point and reach the other issues which arise where the plaintiff reserves his rights against the UM carrier and settles, before trial, his demands against the drivers and owners of the other two vehicles involved, one of whom was self-insured (LRS 32:1042) and the other of whom was un[der]-insured (LRS 22:1406).

THE ACCIDENT

Plaintiff Day and his passenger, Collins, were proceeding easterly on Interstate 20 in a pickup truck owned by their employer on a rainy weekday morning in April 1980. A Chevrolet sedan driven by McManus passed Day at a high rate of speed, went out of control, and skidded into the median ground of the highway. Day observed what had occurred and drove his truck onto the blacktopped southernmost shoulder of the highway a few feet east of the Chevrolet, where he parked the truck and left the motor and windshield wipers going.

Day and Collins got out of the truck and walked on the blacktop toward the rear of the truck. About the time they reached the rear of the truck they saw that an accident was imminent. The Chevrolet was attempting to back from the median into the eastbound lanes of the Interstate in the face of an approaching Coca-Cola tractor trailer. After yelling and motioning in an attempt to stop the Chevrolet’s backing maneuver, and when the Coca-Cola truck had applied its brakes and was jack-knifed on the highway, Day, apparently terrified at the rear or rear side of the truck, was unable to escape, while Collins managed to run from the shoulder of the road and leap into a ditch.

The Coca-Cola truck struck and glanced off the backing Chevrolet and then collided with the parked truck, sandwiching Day when Day was about two feet away from the truck. Among other injuries, Day suffered a severe concussion which prevented him from remembering anything about the accident or how it occurred. Collins testified that the collision occurred within 45 seconds or one minute from the time Day stopped the truck. The trial court concluded that the collision occurred only “several seconds from the time that [Day] . . . parked on the roadside.”

THE UM COVERAGE ISSUE

The policy of Day’s employer obligates the insurer to pay all sums which the insured shall be legally entitled to recover as damages from the operator of an uninsured automobile because of bodily injury caused by accident arising out of the use of the uninsured automobile. Day is an insured under this employer’s policy while occupying the insured truck. The word occupying is defined by the policy as “meanpng] in or upon or entering into or alighting from.” These terms have been construed several times by courts in various jurisdictions. See Annotation at 19 ALR 2d 513, as supplemented.

Our supreme court has not had occasion to squarely construe the term while alighting from, but has observed

“... it is not necessary for a plaintiff, to come within the coverage of an uninsured motorists clause, to prove, as an essential element of his claim, that he was actually physically touching the car at the time of the injury.” Smith v. Girley, 260 La. 223, 255 So.2d 748, 751 (1971).

The word while connotes some continuity of action by the insured person and means “during the time that” or “as long as” that person is alighting from the automobile. The word alighting literally means to get down or descend or to remove a burden from the automobile. Saint Paul-Mercury Indemnity Company v. Broyles, 230 Miss. 45, 92 So.2d 252 (1957).

If the term while alighting from is limited to the physical act of descending to the ground or pavement from the automobile, it would be superfluous and meaningless in the policy because the insured person would be in some contact with the automobile until his or her feet touched the ground and would be covered by the policy terms in or upon the automobile. The term while alighting from, when construed with the whole of the policy language, must extend to some situations where the body of an insured person has reached a point where he is neither in nor upon, in physical contact, with the automobile. Whitmire v. Nationwide Mutual Insurance Company, 254 S.C. 184, 174 S.E.2d 391, 394 (1970).

Breard v. Haynes, 394 So.2d 1282 (La.App. 1st Cir. 1981), affords some guidance. Breard had been a passenger in Cook’s car. About 15 minutes after he got out of Cook’s car, Breard was standing 70 feet away from the Cook car in the highway median while a policeman investigated a minor accident. An approaching vehicle went out of control and struck Breard. Breard claimed that he should be covered by the UM policy on Cook’s car. The policy language appears to be the same as before us. The term occupying there meant “in or upon or entering into or alighting from.” The court found “that the lapse of fifteen . .. minutes, the removal of some seventy feet, the lack of some ‘physical relationship’ between the Cook vehicle and [Breard] and [Breard’s] ... placing himself in a position of danger lead to the conclusion that [Breard] was not ‘occupying’ the Cook vehicle at the time of the ... accident.” 394 So.2d at p. 1284. The court further concluded that Breard “lost” his status as an insured. We make a similar analysis in the light of the language and purpose of the policy and of the circumstances of the case before us.

As Breard observed, it is not physical contact with the vehicle that serves as a basis to determine whether a person is injured while alighting from a vehicle but it is the relationship between the person and the vehicle, obviously of time and in distance with regard to the risk of alighting, that determines this specific coverage. See Smith, supra. When the time and distance factors are no longer proximate to the risk to which a person exposes himself while alighting from a vehicle, as they were in Breard, certainly the Breard result should be pronounced. That person at some time and at some distance “loses” the UM protection. Breard, supra. Certainly no absolute rule can be stated because this determination must be made upon the circumstances of the particular case.

We must respectfully disagree with the trial court and find that the circumstances here compel a finding of coverage. Day was never more than about 24 inches from the truck and no more than “several seconds” elapsed from the time he parked the truck until he was sandwiched between his truck and the Coca-Cola truck. This relationship of time and distance is not attenuated by either factor and Day had no real opportunity or time, once he parked and exited the truck, to choose between a position of greater safety and the general position which he was in when the collision occurred.

The UM carrier argues that Day voluntarily placed himself in a position of unnecessary danger and that with the slightest care Day could have avoided his position of peril. Defendant’s argument (essentially that Day is not legally entitled to recover because of his own contributory negligence) might have merit if it is found that it was unreasonable for Day to have parked and exited the truck under the stated circumstances. Day’s purpose in parking and exiting his truck was to render aid to the McManus Chevrolet and its occupants. By granting some limited immunity to persons who render aid to others in an emergency, the legislature has encouraged our citizens to render such aid. See LRS 9:2793.

Until he parked and exited his truck, Day could not have known whether any of the occupants of the McManus Chevrolet were injured or whether the Chevrolet was immobilized. We do not find then that Day acted unreasonably under the circumstances.

DAY’S INJURIES AND SETTLEMENTS

The UM policy here provided $10,000 per person coverage. McManus, whose liability policy provided only $5,000 coverage, was an uninsured motorist. LRS 22:1406 D2(b).

During the 4V2 months Day was off work following the accident, his employer’s w.c. insurer paid comp benefits of $3,174 and medical benefits of $6,153. Day sued McManus and his liability insurer; Coca-Cola, who was self-insured; and his employer’s UM carrier. The w.c. carrier intervened as a subrogee of Day against the alleged tortfeasors.

In a joint settlement before this case was tried and in which Day reserved all rights against the UM carrier, Coca-Cola paid $15,-000 and McManus’ insurer paid its $5,000 limits. The comp carrier received $5,000 for its subrogated claims and released its claims against Coca-Cola and McManus, and Day, who received $15,000, released his claims against all of these persons whether in tort or under the worker’s compensation law.

As a result of the accident, Day was hospitalized 18 days for injuries which included a severe concussion, fractured ribs, toe, and clavicle, multiple contusions to his body and a severe contusion of a lung, and a collapsed lung with both air and blood in the pleural cavity (pneumothorax and he-mothorax). A tube was inserted through his side to reinflate the collapsed lung and remained there for about ten days. The fractured clavicle required an upper body east and later an X-type brace. The clavicle fracture, which did not heal straight, produces some discomfort “occasionally in the mornings ... a little bit sore around [the] chest” but does not cause Day “any trouble” as of the date of the trial, October 13, 1981, according to Day’s own testimony. Day also testified that he was not having any other “problems” at' the time of the trial. Day’s monthly wages averaged almost $1290 for the 15 months preceding the accident. His loss of wages because of personal injury (4V2 months times $1290) was $5,750.

THE EFFECT OF THE SETTLEMENTS; CONTRIBUTION

While the issues of the negligence of McManus and of Coca-Cola have not been briefed, we must consider these issues insofar as they affect the UM carrier’s right against Coca-Cola. See C.C. Arts. 2103, 2324, 2203, before comparative negligence amendments adopted by Act 431 of 1979, effective August 1, 1980. See Wall v. American Emp. Ins. Co., 386 So.2d 79 (La.1980).

McManus was clearly negligent. If the Coca-Cola driver was also negligent, the UM carrier is entitled to reduce its obligation to Day by one-half because Day’s settlement with Coca-Cola deprives the UM carrier of its right to claim contribution from a joint tortfeasor.

Because the amount at issue, at most, is $10,000 we shall presume, but not decide, that the Coca-Cola driver was jointly. negligent with McManus. This presumption, however, would not cause the UM carrier’s obligation to Day to be less than $10,000 because of the extent of Day’s damages. The malformation of the collarbone (clavicle) and the slight and occasional discomfort, while minimal, are permanent residual effects. The initial effects of the accident and surgical treatment of Day’s many injuries admittedly caused him pain and disability for at least 4Vfe months. He suffered severe headaches and some loss of memory because of the concussion. He incurred medical expenses and lost wages. Day’s damages, including loss of wages, would range from $30,000 to $50,000. McManus’ virile share (Va) in either ease would exceed the UM policy limits. See Whitten v. Empire Fire & Marine Ins. Co., 353 So.2d 1071 (La.App. 2d Cir. 1977). We, therefore, render judgment against the UM carrier for $10,000.

PENALTIES, ATTORNEY FEES

Where the insurer has a reasonable basis to defend the claim, penalties and attorney fees are not assessed. We cannot find the UM carrier’s defense to have been asserted capriciously and arbitrarily in this instance because there is some, but not authoritative and well reasoned, authority supporting the defense. See Annotation, 19 ALR 2d 513 cited supra.

DECREE

Accordingly, the judgment appealed is reversed and judgment is hereby rendered in favor of Day and against the UM carrier, Louisiana Farm Bureau Mutual Insurance Company, for $10,000 with legal interest from judicial demand and for all costs, here and below.

REVERSED AND RENDERED.


text:
    Ervin Ray TEAGUE, Plaintiff-Appellant, v. INTERNATIONAL PAPER COMPANY, Defendant-Appellee.
    No. 14985.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.
    Mecom & Scott, Leroy Scott, Jr., and Harold D. Vaught, Shreveport, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendant-appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   JASPER E. JONES, Judge.

This is a workers’ compensation action, Plaintiff, Ervin Ray Teague, appeals an order obtained by defendant, International Paper Company, dismissing his action with prejudice at his cost. We reverse and re-man(j.

Plaintiff, represented by attorney B.J. Woods, commenced this action on February 15, 1980. The defendant answered on March 14, 1980, and plaintiff filed an amending petition on May 12, 1980. The defendant again answered on May 28, 1980.

On August 22, 1980, Woods moved to resign as plaintiff’s counsel. That day the district judge signed an order which reads as follows:

“Let B.J. Woods be relieved as attorney for Ervin Ray Teague. Ervin Ray Teag-ue is hereby granted 15 days to obtain new counsel.”

On February 1, 1982, defendant made a motion to dismiss showing:

“That no counsel has enrolled and therefore this suit should be dismissed with prejudice at plaintiff’s cost.”

That day the district judge signed the following order:

“IT IS HEREBY ORDERED that said suit be dismissed with prejudice at plaintiff’s cost.”

On March 24, 1982, plaintiff’s present counsel attempted to enroll as counsel of record. Defendant opposed the motion on grounds that the action had been dismissed. Plaintiff then appealed the order dismissing the action.

Plaintiff sets out two assignments of error on appeal. He contends the trial judge erred in (1) dismissing his action with prejudice without giving him notice and an opportunity to be heard, and (2) dismissing his action on the grounds set forth by defendant.

We begin by considering appellant’s second assignment of error. Through this assignment appellant contends that his action cannot be dismissed merely for failure to have enrolled counsel. We agree.

The trial court does not have a genera^ power to dismiss. Lewis v. New York Fire & Marine Underwriters, Inc., 233 So.2d 743 (La.App. 4th Cir. 1970).

One has the right to represent himself even though he is not an attorney. Scott v. Hunt Oil Company, 152 So.2d 599 (La.App. 2d Cir. 1963). Cf. Price v. Taylor, 139 So.2d 230 (La.App. 1st Cir. 1962). However, in so doing he assumes the responsibility for his lack of knowledge. Joiner v. Downing, 383 So.2d 93 (La.App. 3d Cir. 1980); Marchand v. Gene Thorpe Finance, Inc., 225 So.2d 485 (La.App. 4th Cir. 1969), writ refused 254 La. 848, 227 So.2d 592 (1969).

As plaintiff had the right to represent himself, his action cannot be dismissed merely for the failure to have counsel.

We think the purpose of granting appellant 15 days to obtain new counsel was to allow him a brief respite during which counsel for defendant could not use his superior knowledge to gain unfair advantage. That purpose is not served by dismissing plaintiff’s action for failure to have enrolled counsel. At the expiration of the delay defendant’s proper course was to proceed with the litigation according to law rather than to seek to have plaintiff’s action dismissed because plaintiff was not represented by an attorney.

Our conclusion as to this assignment makes it unnecessary to consider the remaining assignment.

The order dismissing plaintiff’s action with prejudice is reversed and the cause remanded for further proceedings not inconsistent with the views expressed herein. All costs of this appeal are taxed against appellee, International Paper Company.

REVERSED and REMANDED.

      . Appellee’s suggestion that appellant has abandoned his right to complain of the dismissal by not pursuing the motion to enroll is without merit.