text:
    Mattie FRANKLIN v. CHARITY HOSPITAL OF LOUISIANA and Travelers Insurance Co.
    No. 13215.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Writ Denied Dec. 20, 1982.

      Clyde A. Ramirez, New Orleans, for plaintiff-appellant.
    Robert J. Caluda, New Orleans, for defendants-appellees.
    Before KLEES, BYRNES and WARD, JJ.
   BYRNES, Judge.

In this appeal Mattie Franklin, plaintiff/appellant, seeks reversal of a ruling in the trial court granting an exception of no cause of action as to defendant/appellee Charity Hospital, and of a judgment dismissing her claim against Travelers Ins. Co., insurer of Charity Hospital. We affirm.

On August 19, 1978 Mattie Franklin, an employee of Charity Hospital, was involved in an automobile accident on Interstate 10 in New Orleans. Ms. Franklin sued the Dept, of Health and Human Resources the state agency which runs Charity Hospital, and Travelers Insurance Co., the liability insurer of Charity Hospital, alleging a tor-tious failure to provide uninsured motorist coverage on the State vehicle which she was driving. Alternatively she alleged that rejection of uninsured motorist coverage by the State breached some undefined contractual duty owed her by Charity Hospital. We find both contentions to be without merit.

It is uncontested that Ms. Franklin was in the course and scope of her employment for Charity Hospital when she was injured. This is admitted in paragraph 15 of her original petition and in the brief filed on her behalf in this court. Under Louisiana law an employee’s exclusive remedy against his employer for an injury received while acting within the course and scope of his employment is the right to compensation. La.R.S. 23:1032. This rule applies to State employees as well as to private employees. La.R.S. 23:1034. Wright v. Moore, 380 So.2d 172 (La.App. 1st Cir. 1979); Shepard v. Louisiana Power and Light Co. Inc., 369 So.2d 1196 (La.App. 2nd Cir.1979). An employer who is subject to liability for compensation benefits cannot generally be held liable in tort to the injured employee La.R.S. 23:1032. Because Ms. Franklin’s tort action against the State does not fall within any of the exceptions to R.S. 23:1032 it was barred by operation of law. Nugent v. Executive Officers of Har-ter Oil Co., 396 So.2d 537 (La.App. 3rd Cir.1981). Moreover, the tort immunity provided by 23:1032 is not personal to the employer but may also be invoked by its’ liability insurer. Bowman v. Early American Insurance Co. of Montgomery Ala., 397 So.2d 28 (La.App. 2nd Cir.1981); Kelly v. M & M Dodge, 370 So.2d 1267 (La.App. 3rd Cir.1979); Guidry v. Aetna Casualty Surety Co., 359 So.2d 637 (La.App. 1st Cir.1978). Accordingly Ms. Franklin’s tort suit against both Travelers and Charity Hospital was properly dismissed.

In addition the State had executed a valid waiver of uninsured motorist coverage pursuant to La.R.S. 22:1406. This waiver was in effect at the time of Ms. Franklin’s injury. Thus, even were we to find that this case did not fall under the exclusivity provisions of R.S. 23:1032 there would be no uninsured motorist coverage available to appellant. On appeal Ms. Franklin has urged that she, as the ultimate beneficiary of the insurance coverage, should have been the one to execute the waiver, relying on Thomas v. Allstate Ins. Co., 321 So.2d 808 (La.App. 4th Cir.1975) This reliance is misplaced. In Thomas there was no waiver of the uninsured motorist coverage by the employer. The question there concerned who the policy was intended to protect in the absence of a waiver. As the named insured the State had the right to waive uninsured motorist coverage. La.R.S. 22:1406 D(1)(A). We find that the policy was intended to protect the State from claims arising out of the ownership and operation of State vehicles, and to indemnify parties injured by those activities. It was not intended to indemnify an employee for injuries received in the course and scope of his employment. The policy itself in Sec. A. 1(b). specifically excludes from coverage any liability arising out of the provisions of the workman’s compensation law.

Appellant’s contention that the State or Travelers Insurance Co. is under a duty to inform its’ employees of the nature and scope of insurance coverage- on its’ vehicles is also without merit. Appellant admits in brief that there is no statutory requirement of such notice. In the absence of such an expression of legislative intent we decline to create such a duty. Lee v. Peerless Insurance Co., 248 La. 982, 183 So.2d 328 (1966); State ex rel. Cruse v. LaSalle Parish School Board, 35 So.2d 608 (La.App. 2nd Cir.1948); Mitchell v. Maxey, 11 La.App. 317, 123 So. 436 (2nd Cir.1929).

Because we have found that La.R.S. 23:1032 grants immunity from tort suit to Charity Hospital we affirm the action of the trial court dismissing Charity Hospital on an exception of no cause of action. We also uphold the action of the trial court dismissing Travelers Insurance Co. since we find no genuine issue of material fact such as would preclude summary judgment. Summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law C.C.P. Art. 966. In this case the State of Louisiana executed a valid waiver of uninsured motorist coverage. This waiver is contained in the record and is attached to the policy. We have found that this policy was not intended to cover injuries to employees such as Ms. Franklin’s which are covered by workmen’s compensation. Moreover, as discussed above, Travelers Insurance Co. enjoys the same immunity from tort suit as the State of Louisiana under La.R.S. 23:1032.

These conclusions leave no genuine issue of material fact concerning Travelers right to a dismissal. Accordingly we affirm the action of the trial court.

Cost of this appeal are to be borne by appellant.

AFFIRMED.


source: Caselaw Access Project

author: BYRNES, Judge.

license: Public Domain

text:
    Elizabeth Budd Saunders wife of Lawrence C. SAUNDERS v. Lawrence C. SAUNDERS.
    No. 13229.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Elizabeth Saunders, in pro. per.
    Robert C. Lowe, New Orleans, for defendant-appellee.
    Before BYRNES, KLEES and WARD, JJ.
   BYRNES, Judge.

This is an appeal from a judgment of divorce based on La.R.S. 9:301. We affirm.

The facts of the case are as follows: In November 1979, Elizabeth Budd Saunders, appellant herein, filed suit for separation based on abandonment. A judgment was entered on March 4,1980 granting the separation and finding Mrs. Saunders free from fault. In December 1980, Lawrence C. Saunders, appellee herein, filed suit for divorce under La.R.S. 9:301, alleging that the parties had lived separate and apart without reconciliation for more than one year. Mrs. Saunders reconvened, admitting that the parties had been separated without reconciliation for greater than a year, but urging that Mr. Saunder’s suit be dismissed and that she be granted a divorce based on her earlier separation judgment. She further prayed that she be found free from fault and awarded permanent alimony.

A pre-trial conference was held, during which a written stipulation, signed by counsel for both parties, was entered into, severing Mrs. Saunders’ demand for permanent alimony from Mr. Saunders’ main demand for a divorce. Trial was held on June 25, 1981, and a judgment granting Mr. Saunders a divorce was signed on July 7, 1981.

On appeal Mrs. Saunders asks this court to set aside that judgment and grant her a divorce based on her earlier separation suit. This we cannot do.

Both parties have admitted to living separate and apart without reconciliation for greater than one year. When the appropriate statutory period has been shown, the trial court has no discretion, but must grant the divorce. Brady v. Brady, 388 So.2d 57 (La.App. 1st Cir.1980) Otis v. Bahen, 209 La. 1082, 26 So.2d 146 (1946). It follows that the trial court did not commit error by granting the divorce.

Appellant’s contention that she should have been granted a divorce based on her judgment of separation is without merit. At the time Mr. Saunders was granted his divorce one year had not elapsed from the signing of Mrs. Saunders judgment of separation. Thus she was not entitled to a divorce on that basis. See La.R.S. 9:302.

The issue of permanent alimony was severed from the main demand in this case by joint stipulation. There has been no trial on this issue and we have no facts in the record which would enable us to rule on it. Accordingly, we do not consider the claim for permanent alimony. The ruling of the trial court is affirmed.

Costs of this appeal are to be borne by the appellant.

AFFIRMED.


author: CIACCIO, Judge.

text:
    J.W. CLARK v. BOARD OF COMMISSIONERS, PORT OF NEW ORLEANS.
    No. 13230.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Asst. Atty. Gen., 'Paul A. Eckert, Staff Atty., Louisiana Dept, of Justice, New Orleans, for appellant.
    Harvey C. Koch, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for appellee.

      Before GARRISON, AUGUSTINE and CIACCIO, JJ.
   CIACCIO, Judge.

This is a devolutive appeal by the Board of Commissioners, Port of New Orleans (Dock Board) from a decision of the Civil District Court, Parish of Orleans, declaring that the term of office of a commissioner of the Dock Board begins on the date his commission is issued by the Governor, and that the term of office ends five years after the date of appointment. The trial court then enjoined the Dock Board from taking any action declaring the term of plaintiff-appel-lee, J.W. Clark, expired or his office vacant prior to March 8, 1983. We affirm.

On December 10, 1976, a vacancy was created on the Dock Board by the expiration of the term of office of one of its members. To fill this vacancy the Governor appointed the plaintiff-appellee, J.W. Clark, by commission dated March 9, 1978. At some time prior to December, 1981, the Dock Board notified Mr. Clark that his term of office would expire on December 10, 1981, and that on that date his office would be declared vacant. In reaction thereto, Mr. Clark filed this suit seeking to enjoin the Dock Board from pursuing any such procedure and for a declaratory judgment defining his term of office.

For purposes of trial, the parties filed a stipulation of facts. The stipulation set out that Mr. Clark had been appointed by commission of the Governor dated March 9, 1978. He took his oath of office, filed the oath with the Secretary of State, and began actively serving as a Board Member on March 23, 1978. Prior to December, 1981, the Dock Board notified Mr. Clark of its intention to declare his term expired and his office vacant as of December 10, 1981. And, as of December 10, 1981, Mr. Clark would have served three years and nine months as a Dock Board member.

The Dock Board maintains that a member’s term of office begins on December 10th of the year that the term of his predecessor expires and lasts for five years thereafter. The Dock Board relates the present statutory provisions concerning the Dock Board back to the Louisiana Constitution of 1921. The Dock Board argues that the terms of office of its members begin on December 10th because that is the date that the 1921 Constitution was promulgated. The Dock Board policy for the past sixty years has been that the terms run for five years from December 10th regardless of when a member is appointed to serve his term.

Mr. Clark, however, reasoned that his term of office began from the time that he took his oath of office and began to serve. That date is March 23, 1978.

The issue presented to the trial court and now on appeal is to determine the term of office of a member of the Dock Board.

The trial court decided that Mr. Clark’s term began on March 9, 1978, when he was appointed by the Governor. Mr. Clark’s five year term, therefore, would last until March 8, 1983. Consequently, the trial court enjoined the Dock Board from declaring Mr. Clark’s term expired any time prior to March 8, 1983.

In support of its position the Dock Board relies upon an opinion of Attorney General A.V. Coco (Op.Atty.Gen., 1920-22, p. 919) and the doctrine of contemporaneous construction. The attorney general’s opinion stated:

“The term of office of these commissioners began from the date our Constitution went into effect by promulgation, and not from the date of their appointment by the Governor.”

This opinion cites as its only authority the case of State v. Young, 137 La. 102, 68 So. 241 (1915).

State v. Young deals with the issue of whether the Governor could fill a vacancy for bank examiner when the Senate was in recess, and the right of a person so appointed to take office. The beginning of a bank examiner’s term was specifically provided for by statute, but the Court said that, if it had not been so provided, the term would have begun on the date the act creating the office became effective.

Article 194 of the Constitution of 1898 provided:

“There shall be appointed by the Governor, by and with the advice and consent of the Senate, a state examiner of state banks, who shall be an expert accountant, and who shall make examinations of all state banks at least twice in every year. His term of office shall be four years and the Legislature shall define his duties and fix his compensation.”

Subsequently, Act No. 198 of that year provided:

... “He ... shall serve for four years from the date of his induction into office...”

In contrast to the above demonstrated brevity of Article 194 of the 1898 Constitution, Article VI, Section 17 of the 1921 Constitution covering the Dock Board contains some 17 paragraphs and provides, among other things, for a very complex nominating procedure, for appointment by the governor without the advice and consent of the Senate, and for an exclusive removal procedure.

The two constitutional provisions have nothing in common except a final appointment by the Governor. Further, since the Young Court was not presented with the issue in this case, its comments thereon must be classified as dicta.

The Court in State v. Young cites and quotes as its authorities the cases of Bry v. Woodroof, 13 La. 556 (1839) and State ex rel. Wilson v. Parker, 30 La.Ann. 1182 (1878). The Woodroof and Parker courts also dealt with statutes entirely different from those covering the Dock Board. Wood-roof and Parker presented the issue of when a term of office, not otherwise provided for, begins. A careful examination of these opinions reveals that they do not support the Dock Board’s position in this matter.

The Dock Board argues for December 10th, the date the 1921 Constitution was promulgated, as the day to begin and end terms. In Bry v. Woodroof, supra, the Court held the term of office under consideration to begin on the day of the date of the act. In State ex rel. Wilson v. Parker, supra, the Court held with regard to the office of public administrator that the term begins with the going into effect of the act creating the office. Each opinion relied upon by the Dock Board dealt with a different office and each decision chose a different starting point from which to calculate the term of office.

The Dock Board provisions are detailed and unique with regard to selection, nomination and removal of Board members. Judicial precedent resolving particularly the questions presented by this case cannot be found. The answers must come from applying the standard rules of interpretation directly to the statute.

The Louisiana Constitution of 1974 relegated the Dock Board provisions to the revised statutes, Title 34:1 et seq. The portion of the statute pertinent to this case is R.S. 34:1(K) which reads:

“K. Term of appointment; filling unexpired term; reappointment. A person appointed to fill a vacancy that occurred other than by expiration of a term shall serve for the unexpired portion of the term. Otherwise, each member appointed to the Board shall be appointed for a term of five years. No member of the board shall be eligible to succeed himself unless his immediately previous appointment was to serve the unexpired portion of a term which had less than two years to run.”

Recent United States Supreme Court cases offer guidance in the área of statutory interpretation. From Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980):

“The Court has stated repeatedly of late that in any case concerning the interpretation of a statute the ‘starting point’ must be the language of the statute itself.” (at 100 S.Ct. 918).

And from Consumer Product Safety Comm. v. GTE Sylvania, Inc., 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980):

“We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” (at 100 S.Ct. 2056)

See also: United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 952, 63 L.Ed.2d 250 (1980); Diamond v. Chakrabarty, 447 U.S. 303, 100 S.Ct. 2204, 2207, 65 L.Ed.2d 144 (1980); Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176, 100 S.Ct. 2601, 2608, 65 L.Ed.2d 696 (1980).

Looking to the language of the statute itself we find “... each member appointed to the board shall be appointed for a term of five years.” The next step is to analyze this provision by using the standard rules of construction.

The fundamental rule of construction is to ascertain and give effect to the intention of the legislature as expressed in the statute. Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140, 93 L.Ed. 1089 (1948); Webb v. Parish Council of Parish of East Baton Rouge, 47 So.2d 718 (La.1950); Fagot v. Flintkote Co., 305 F.Supp. 407 (E.D.La.1969); Jefferson Parish v. Stansbury, 228 So.2d 743 (La.App. 4th Cir., 1969).

To that end, the following presumptions apply:

That the legislature understood the meaning and effect of the words it used. United States v. Goldenberg, 168 U.S. 95, 18 S.Ct. 3, 42 L.Ed. 394 (1897), State v. Coulon, 3 So.2d 241 (La.1941).

That it intended to use those words. Goldenberg, supra; Lyons v. H.K. Ferguson Co., 16 So.2d 587 (La.App. 1st Cir.1944).

That every provision has a useful purpose, and effect is to be given to each provision. State v. Texas Co., 17 So.2d 569 (La.1944); Legros v. Conner, 212 So.2d 177 (La.App. 3d Cir.1968).

Further, a cardinal rule of construction is that all parts should be harmonized, if possible, so that no provision is rendered void or meaningless. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Markham v. Cabell, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945); St. Martin Parish Police Jury v. Iberville Parish Police Jury, 212 La. 886, 33 So.2d 671 (1947); Giles v. Breaux, 160 So.2d 608 (La.App. 1st Cir. 1964); Fakier v. Picou, 166 So.2d 257 (La.1964); Campbell v. Standard General Realty Co., 185 So.2d 598 (La.App. 4th Cir.1966), writ ref. 187 So.2d 440.

As phrased by the Court in Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336, 339 (1962), “. . . meaning should be given, if possible, to each and every section, and the construction placed on one portion should not be such as to obliterate another... ”

The Dock Board’s practice of beginning and ending each term on December 10th prevents any member from serving a full five years because of the statutory requirement that the nominating procedure begin only after a term has expired. L.S.A.-R.S. 34:1. The clear language of the statute provides that Board members appointed to fill a vacancy created by the expiration of a predecessor’s term are appointed to serve a minimum of five years. The earliest possible date on which an appointee’s term could begin, therefore, is the date on which he is appointed.

In further support of its position the Dock Board also relies on the doctrine of contemporaneous construction. This doctrine is not absolutely applied. Both the United States and the Louisiana Supreme Courts have long held that contemporaneous construction is only an aid in interpreting ambiguous language.

In Houghton v. Payne, 194 U.S. 88, 100, 24 S.Ct. 590, 593, 48 L.Ed. 888 (1904), the Court said:

“Contemporaneous construction is a rule of interpretation, but is not an absolute one. It does not preclude an inquiry by the courts as to the original correctness of such construction. A custom of the Department, however long continued by successive officers, must yield to the positive language of the statute.” Quoted and followed by Parker v. Cave, 198 La. 267, 3 So.2d 617, 621 (1941).

Some 75 years later, the Houghton analysis was echoed in the case of Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). The Court held that although an agency’s interpretation of a statute under which it operates is entitled to some deference, such deference is constrained by the court’s obligation to honor the clear meaning of a statute, as revealed by its language, purpose and history.

Louisiana courts also sharply limit the application of this doctrine. In State of Louisiana v. U—Drive It Car Co., 79 So.2d 590, 594 (La.App.Orl.1955), the court held that contemporaneous construction did not apply to a Collector of Revenue’s ruling which had been followed for some fifteen years. The rule prevailing in this State, it said, “has been enunciated in the relatively recent case of Liquidation of Canal Bank & Trust Co., 211 La. 803, 30 So.2d 841, 849 (1947) wherein the court during the course of its opinion asserted:

“ ‘While it is the generally accepted rule that the contemporaneous construction given a statute by those charged with its execution is entitled to great weight and should not be disregarded except for cogent reasons, this rule is not controlling, particularly if such construction is erroneous.’ ” (Citations omitted) (Emphasis added)

See also State v. Standard Oil Co. of Louisiana, 188 La. 978, 178 So. 601, 605-606 (La.1937); State ex rel. Munsch v. Board of Comm’rs., Port of New Orleans, 198 La. 283, 3 So.2d 622 (1941); Gulf Shipside Storage Corp. v. Thames, 46 So.2d 62 (La.1950).

In Dunhill of Lafayette, Inc. v. Marion Corp., 390 So.2d 224 (La.App.1980), the court noted that where no ambiguity exists or where the contemporaneous construction being followed is clearly erroneous, the rule is inapplicable.

“... [E]ach member appointed to the board shall be appointed for a term of five years.” There is no ambiguity in this language. A full term on the Dock Board involves serving a minimum of five years. Although practiced in good faith for the past sixty years in reliance upon the opinion of Louisiana’s Attorney General, the Dock Board’s present method of beginning and ending every term of office on December 10th is erroneous.

Although, as previously pointed out, the unique provisions of the Dock Board statutes make the finding of an “all-fours” precedent impossible, the following case is highly persuasive. Particularly is it so in light of the fact that no Louisiana court (except the District Court below) has ever considered the matter of when a Dock Board term of office begins.

In the case of People v. Nickel, 9 Cal.App. 783, 100 P. 1075 (1909), the Attorney General of California brought a proceeding to oust defendants from their offices as port wardens of the Port of San Francisco. The governor had delayed appointing these wardens until some time after the preceding terms had expired so that at the time the action was brought they had not served their full four year terms.

The Attorney General’s position was that a port warden’s term of office began with the expiration of his predecessor’s term and that, no matter how long his appointment had been delayed, he was entitled to serve only the remaining portion of the four year period.

The Court held, however, that the Attorney General’s theory would be correct only if the statute creating the office had set a beginning date. After analyzing the statute, the Court said:

“It will thus be seen that the term of office of a port warden is simply fixed as a period of time — four years — and no particular date is established for either the beginning or ending of the term. Under such circumstances it is well established that each incumbent takes a term, running from the date of his appointment, equal in duration to the period of time fixed by the statute as the term of office. ..
“As the term of each defendant did not begin until he was appointed, and four years have not elapsed since the appoint-merit of either, each is entitled to hold the office to which he was appointed until the expiration of that period.” (100 P. at pages 1076-1077) (Citations omitted) Cited in Simpson v. City of Gulfport, 239 Miss. 136, 121 So.2d 409 (1960).

The foregoing examination of the unambiguous language of the Dock Board statutes admits of only one conclusion: A Dock Board member’s term begins on the date of his appointment by the governor and ends five years later.

The statute provides for a detailed procedure by which the nominating council responsible for a particular vacancy, certifies to the Governor, within certain time constraints, the names of three nominees. “... [F]rom among the nominees thus certified the governor shall make an appointment ...” The statute does not require the Governor to act upon the nominations by any specified time period.

The present Dock Board procedure of beginning and ending each term on December 10th allows the Governor, either intentionally or through oversight, to effectively shorten a commissioner’s term by a delay in making the appointment.

The prerogative belongs to the Legislature, if it so desires, to place time limits on the Governor to make his appointments and/or to provide a specific date on which Dock Board terms of office are to begin. The Courts have the duty to interpret the laws as legislated and, when possible, to honor the clear meaning of a statute as revealed by its language, purpose and history.

The clear meaning of R.S. 34:1(K) provides for a full five year term of office for Dock Board members. A Board member’s term cannot begin before he is appointed. A board member, therefore, shall serve a term beginning from the date of his appointment and lasting for five years.

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


author: LOBRANO, Judge.

text:
    Jacqueline WITTENBERG v. NEW ORLEANS PUBLIC SERVICE, INC. and the City of New Orleans.
    No. 13208.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      C.B. Ogden, II, New Orleans, for defendant/appellee.
    Joseph W. Thomas, New Orleans, for plaintiff/ appellant.
    Bernette J. Johnson, Asst. City Atty., New Orleans, for defendant/appellee.
    Arthur W. Landry, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for defendant/appellee.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   LOBRANO, Judge.

This lawsuit arose out of an alleged fall by a passenger disembarking a New Orleans Public Service (NOPSI) bus at the corner of Canal and Decatur Streets. Jacqueline Wittenberg, the plaintiff, sued NOPSI and the City of New Orleans for her damages. The City of New Orleans thereupon filed a third party demand against Boh Brothers Const. Co., who were doing street repairs in the area where the accident occurred. Boh Brothers answered this third party demand denying liability and further alleging that the accident was due to the contributory negligence of the plaintiff, as well as the negligence of NOPSI and the City of New Orleans.

At the conclusion of the trial on the merits, the court dismissed plaintiff’s suit as to the named defendants and dismissed the City of New Orleans’ third party demand against Boh Brothers Construction Co. Inasmuch as plaintiff did not name Boh Brothers Construction Company as a principal defendant, the dismissal of Boh Brothers is not raised as an issue on appeal by the plaintiff.

Plaintiff, an employee of the Dept, of Health and Human Resources was riding the Express 91 bus to work on Monday, July 21, 1980, the date of the accident. On the previous Friday, plaintiff had noticed that the bus was rerouted down North Peters Street, rather than Decatur, due to the fact that Decatur Street was being resurfaced. On Monday, the bus resumed its accustomed route down Decatur Street. In fact, vehicular traffic of all kinds was using Decatur Street on that morning.

When the Express 91 bus pulled up to the corner, plaintiff observed another bus parked in front of it. Because of this the passengers on Express 91 were let off at a spot short of the designated bus stop. The bus, plaintiff testified, did not pull up to the curb, but allowed the passengers to get off into the street. According to the plaintiff, approximately ten to fifteen passengers got off at that point, but all used the front door of the bus and only plaintiff used the back door. All other passengers were able to get off the bus without incident; however, when plaintiff stepped off into the street, she fell. Plaintiff cannot say what caused her fall. She testified that she did not look down when alighting from the bus.

George Cooper, plaintiff’s witness, testified that he alighted from the bus at the same time as plaintiff, but from the front door. He observed that the street was under some type of construction, and also observed barricades in the area. These conditions were very apparent to Mr. Cooper.

As a result of the accident plaintiff sustained a sprained ankle which required immobilization in a cast for a period of three weeks. Once the cast was removed she wore an ankle brace for another three weeks and then finally resumed her normal activities with only intermitted soreness after that point. Plaintiff was discharged by her treating physician on February 27,1980, twenty six days after this accident.

“... the mere showing of an injury to a fare paying passenger on a public conveyance and his failure to reach his destination safely imposes upon the carrier the burden of exculpating itself of negligence.” Galland v. NOPSI, 877 So.2d 84 (La.1979), at p. 85.

In the case at bar, plaintiff’s own testimony reveals that she fell after she had left the bus and was walking in the street toward the curb. She stated on three separate occasions that she had taken at least one step from the bus before falling. Thus the Galland supra rule is inapplicable since NOPSI had fulfilled its duty to deliver the passenger safely to her destination.

“... once a passenger freely disembarks at his chosen destination free from harm, his status as passenger, and the public carrier’s contract to transport for hire, cease. At that point the public carrier only owes such person the duty of ordinary care — it is under no duty to warn the former passenger of ‘a danger which is apparent, obvious and known to every person in good mind and sense.’ ” Tear v. Continental Trailways, Inc., 341 So.2d 1306 (La.App. 3rd Cir.1977) at p. 1308.

Once she departed the bus, it was incumbent upon the plaintiff to prove negligence on the part of NOPSI or its codefendant the City of New Orleans. NOPSI’s standard of care at that point is no longer one of a common carrier, but of the “reasonable man”.

In this regard the only evidence introduced by plaintiff were pictures indicating some degree of roughness in the street. As the trial court states in its oral reasons for judgment, “No evidence whatsoever was indicated to link the pictures with the plaintiff’s testimony to such a degree as to indicate that she stepped into these rough spots. The plaintiff’s testimony was vague on this point.”

We agree with the trial court that plaintiff’s testimony was vague and contradictory. Her testimony that she didn’t look at the street when she stepped off the bus and her prior knowledge of the street condition would constitute contributory negligence even were this court to hold any of the defendants negligent.

Plaintiff also argues that the City of New Orleans is liable for her injuries under La.C.C. Art. 2317 and Loescher v. Parr, 324 So.2d 441 (La.1975). Although the Supreme Court’s decision in Jones v. City of Baton Rouge, 388 So.2d 737, applies Civil Code Art. 2317 to municipalities for those things which are found to be within their care, custody and control we agree with the trial court that plaintiff failed to prove that a defect in the street caused her fall. Furthermore plaintiff’s failure to keep a proper lookout and exercise normal and reasonable precautions as she walked through an area where she knew street resurfacing work was in progress, constituted “victim fault” which would preclude her recovery under Art. 2317.

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable basis for the trial courts finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” Canter v. Koehring, 283 So.2d 716, 724 (La.1973).

“ ‘Manifestly erroneous’, in its simplest terms, means ‘clearly wrong’ ”. Arceneaux v. Domingne, 365 So.2d 1330, 1333. (La.1978).

For the reasons set forth above, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Robert J. BRITSCH v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 13223.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Orlando G. Bendana, Bendana & Carlton, New Orleans, for plaintiff/appellant.
    A.R. Christovich, Jr., Christovich & Kear-ney, New Orleans, for defendant/appellee.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   LOBRANO, Judge.

This case arises out of a NOPSI bus accident which occurred on January 17, 1977. The sole issue on appeal is whether the trial court’s award of $12,000.00 in general damages is inadequate.

Plaintiff was injured when the bus in which he was riding went out of control and struck a house. NOPSI conceded the issue of liability and the trial was limited to the issue of quantum.

The medical testimony presented at the trial indicates that as a result of the accident plaintiff suffered a cervical strain which aggravated a previously asymptomatic degenerative disc syndrome. This conclusion was reached by the experts for both plaintiff and defendant.

Dr. Dabezies, an orthopedist who testified on behalf of plaintiff, was certain as to the duration of plaintiff’s pain. His estimation is summed up as “the histories of these is that it will settle down.”

Dr. LaRocca, another orthopedist called by plaintiff, was of the opinion that plaintiff would have intermittent bad days when the pain would be more severe. This type of degenerative disease usually establishes itself at a given level more or less indefinitely.

Defendant’s medical experts testified that plaintiff may have sustained a sprain but that it was now healed; that there was no thoracic outlet syndrome and there exists no reason for him not to continue full activities.

Plaintiff attempted to prove through the testimony of various witnesses that his work, social and family activities were curtailed after the accident. Specifically there was testimony that plaintiff, a dentist, found it difficult to remain with his head bent forward as his work necessarily dictated. Plaintiff’s witnesses stated that his gardening had suffered since the accident and that he was unable to play ball with his children after work.

Defendant established that even after the accident plaintiff remained an active sportsman, hunting several times per month with a 12 and 16 gauge shotgun and engaging in the strenuous “camp” activities. Judith Hill, a neighbor, testified plaintiff’s home was the “center of neighborhood activity” during the social hour.

The trial court in its reasons for judgment states,

“This court believes that Dr. Britsch did suffer an injury and symptoms to his right shoulder, wrist and arm during the accident in 1977, however this Court does not believe that the said injury was that serious as testified to by plaintiff’s doctors which seems to indicate that Dr. Britsch has not been extremely seriously injured sufficiently enought to reduce his ability to make a living as a dentist. This court is more inclined to believe that plaintiff did in effect suffer an injury but that said injury lasted for a period of no more than six to seven months. Therefore, this Court feels an award of $12,-000.00 will do justice in connection with this case.”

In the assessment of damages in cases of quasi offenses much discretion must be left to the judge or jury. La.G.G. Art. 1934(3). Before a court of appeal can disturb an award made by a trial court the record must clearly reveal that the trier of fact abused his discretion in making his award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). Before an appellate court can disturb a factual finding by the trial court, it must determine that the finding is manifestly erroneous and has no reasonable factual basis. Canter v. Koehring, 283 So.2d 716 (La.1973); Arcenaux v. Domingue, 365 So.2d 1330 (La.1978); Perniciaro v. Brinch, 384 So.2d 392 (La.1980). See also, Reck v. Stevens, 373 So.2d 498 (La.1979).

In the case at bar, there was obviously ample evidence on which the trial court could base its conclusion. There was conflicting testimony both as to the duration of plaintiff’s cervical strain and the effect it had on his activities. The trier of fact gave more weight and found more reliable defendant’s evidence in this regard. Our review of the record convinces us that the trial court’s award of $12,000.00 in this case was not manifestly erroneous and not an abuse of discretion.

AFFIRMED.


text:
    John BROWN v. AVONDALE SHIPYARDS, INC.
    No. 13345.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Frank S. Bruno, New Orleans, for plaintiff/appellant.
    Delbert G. Talley, Gretna, for defendant/appellee.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   LOBRANO, Judge.

Appellant, John Brown, sustained injuries as a result of an accident arising out of and in the course of his employment as a carpenter at Avondale Shipyards on July 21, 1980 when he was struck in the right lower front ribs by a hook used to carry wood. As a result, he instituted these proceedings seeking Workmen’s Compensation benefits alleging a total and permanent disability.

The trial court found that appellant was disabled from July 21,1980 until September 21,1981, and thus was entitled to compensation benefits during that period. The Court further ordered defendant to pay the future medical expenses if appellant elected to enter the Mercy Hospital pain clinic, as well as weekly compensation benefits during the confinement. The claim for attorney fees and penalties were rejected. From that judgment appellant perfected this appeal seeking total and permanent disability benefits. Appellee, Avondale Shipyards, Inc. answered the appeal seeking a reduction in the award.

In well written reasons for judgment, the trial court concluded that the overwhelming medical evidence shows that appellant sustained neither a total, or partial disability. The lower court reasoned that there were no objective findings of a disabling injury, and appellant’s constant complaints of pain were purely subjective. Although we disagree with the trial court’s statement that the substantial pain test was overruled by the Supreme Court’s enunciation of the odd-lot doctrine we agree with the judgment and therefore affirm.

In order to recover benefits under the Louisiana Workmen’s Compensation Law, an employee must establish that he received a disabling injury as a result of an accident arising out of and in the course of his employment. Disability is compensable only if it results from a work related accident or an occupational disease. La.R.S. 23:1031, 1031.1. The issues presented for our review are whether appellant is totally and permanently disabled under the odd-lot doctrine, and whether the trial court’s award was excessive. That doctrine is the guiding concept in determining permanent total disability in cases of this nature.

Contrary to the opinion of the trial court, the substantial pain test has not been overruled by our Supreme Court, but is in embodiment of the broader odd-lot doctrine. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981). Substantial pain cases must be analyzed within the framework of the odd-lot doctrine. See, Lattin v. Hica Corporation, 395 So.2d 690 (La.1981); Calogero v. City of New Orleans, 397 So.2d 1252, (La.1980); Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). In order to determine if a party fits within the category of odd-lot workers, he must show that because of his physical impairment, mental capacity, education, training, age availability or employment in his area, and any other relevant factor, that he cannot perform any services other than those which are so limited to quality, dependability or quantity that a reasonable stable market for them does not exist. If this evidence is produced, the injured employee is entitled to total disability compensation unless the employer or his insurer is able to show that some form of suitable work is regularly and continuously available to the employee within reasonable proximity to his residence. An offering of such proof by the injured employee presents a prima facie case for classification in the odd-lot category. Oster, supra; Lattin, supra; Wilson, supra.

In the instant case, appellant provided no evidence that would place him in the category of odd-lot workers. Appellant never reported to work or attempted to do any kind of work after initially being discharged by Dr. Mahey on July 31, 1980. There is no evidence that he could not have performed his old duties or any other duties. Appellant’s entire claim is based on his continued complaints of pain, which complaints are not substained by objective medical findings. A party will not be held to be disabled within the meaning of the Workmen’s Compensation Act solely because he suffers some residual pain and .discomfort following a work-connected injury. This residual pain and discomfort will be considered disabling only if it is substantial or appreciable and only where there is sufficient evidence to substantiate the complaints of pain. As Chief Justice Dixon stated:

“The claimant who alleges disability because of inability to perform his usual and regular duties without substantial or appreciable pains must establish the existence of that condition to a reasonable certainty and by a fair preponderance of testimony.” Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367, 369 (La.1980). See also, Ball v. American Marine Corporation, 159 So.2d 138 (La.1964); Glidden v. Alexandria Concrete Co., 137 So.2d 894 (La.1962).

In applying this analysis to the present case we find no objective evidence of appellant being in the odd-lot category, or that he is suffering from substantial or appreciable pain. There are no objective measures by which any of the examining physicians could say that the appellant suffered the substantial and appreciable pain of which he complained. It is apparent from a careful review of the record and a reading of the trial court’s reasons for judgment that in considering all the evidence, the court found that the plaintiff’s continued pain was psychosomatic rather than actual and that plaintiff was exaggerating his pain. We agree with the trial court.

After being released by Dr. Mabey on July 31, 1980 and told he could return to work, appellant consulted Dr. Paul Reyes, a general surgeon and his primary treating physician. His injuries were diagnosed as cervical and lumbo sacral sprains and contusions to the right lower ribs. Dr. Reyes testified that his findings were minimal, subjective and without muscle spasm. Dr. Reyes continued to treat appellant only because of his subjective complaints of pain. On December 9, 1980 for some unknown reason, appellant’s condition worsened. Dr. Reyes was unable to relate these changes to the original injury. Nevertheless, he continued to treat appellant until February 19, 1981. Dr. Reyes testified that the type of injury appellant sustained should have greatly improved within 12 weeks from the date of the injury. He continued the treatment for pain but believed the complaints were caused by a psychological problem. He further concluded that appellant did not have any permanent or temporary disability-

In January of 1981, appellant was examined by Dr. J. Ollie Edmunds, an orthopedist. At this time he complained of low back pain, stiff neck, pain in his shoulder and pain in both legs, especially his right leg. Dr. Edmunds noted, however, that appellant limped on his left leg which was confusing, to say the least. Because of appellant’s complaints, however, Dr. Ed-munds made a tentative diagnosis of suspected nerve root compression, lumbar disc and neck strain. Further diagnostic studies were necessary but appellant was not seen again until May 31, 1981.

In March of 1981, appellant was examined by Dr. L. Thomas Cashio, an orthopedist. Dr. Cashio found no objective findings of injury and concluded appellant was not injured and could return to work without any disability of limitation.

In May of 1981, appellant underwent a series of extensive tests at the Tulane Medical Center which included X-rays, bone scans, a CAT scan, venogram and myelo-gram. All were normal. The conclusion by the examining physician was that there was nothing mechanically wrong with appellant and that there was no anatomical basis to justify his subjective complaints of pain.

In September of 1981, appellant was worked up by Dr. Ronald E. Richardson, a neurosurgeon. Appellant’s examination was completely normal. Dr. Richardson concluded there was no reason for appellant’s complaints of pain and that appellant could return to work. He recommended that appellant be hospitalized one month in the Mercy Hospital Pain Clinic to teach him how to cope with his complaints.

During appellant’s entire treatment period the only positive findings were positive straight leg raising tests given by Dr. Reyes and a positive EMG test given at the Tulane Medical Center. In each case, in the judgment of the treating physicians, these tests were inconclusive and were not related to the injuries he received on the job nor were they the producing cause of any disability.

The overwhelming medical evidence supports the conclusion that appellant does not have any disability or permanent incapacity resulting from the accident. Although we agree that the trial court’s award was very liberal, in the absence of any manifest error we will not disturb the award.

For the reasons above, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Donna LONDON v. Helen BELL and Aetna Life and Casualty Insurance Company, Casualty and Surety Division.
    No. 13277.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    John J. Jackson, III, Jackson & Stovall, New Orleans, for plaintiff/appellee.
    Melvin W. Mathes, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for defendants/appellants.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   LOBRANO, Judge.

The instant case involves a pedestrian-automobile accident. On June 5, 1980 at approximately 3:00 a.m., pedestrian plaintiff-appellee, Donna London attempted to walk across Claiborne Ave. at the intersection of Phillip Street in a north to south direction. Plaintiff-appellee safely traversed three of the four lanes in the street. As she attempted to step up onto the neutral ground from the edge of the fourth traffic lane, she was struck by the left side of the automobile driven by defendant-appellant, Helen Bell. The trial court found specifically that plaintiff-appellee was free of contributory negligence and that defendant-appellant could have avoided the accident had she been paying requisite attention required of her. A total judgment of $155,748.65 was awarded consisting of $55,-748.65 in special damages and $100,000.00 for past, present and future pain and suffering. The $55,748.65 in itemized specials included a sum of $40,000.00 for future loss of income capacity and potential.

Defendant has appealed avering two specifications of error:

1) That the trial court erred in not finding the accident was unavoidable and that the defendant took all reasonable efforts to avoid the accident.
2) That the trial court’s award was excessive.

This ease involves a factual determination based on the credibility of all witnesses. It is well established in our jurisprudence that the findings of the trier of fact will not be disturbed by the reviewing court in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Noel v. Esgard, Inc., 411 So.2d 1108 (4th Cir.1982). After a careful review of the testimony, exhibits and conclusions of the various medical experts as well as the accident reconstruction expert, it is our opinion there is no manifest error in the findings of the trial court as to liability or damages.

The defense of unavoidable accident and the “sudden emergency” doctrine can only be sustained to exonerate a driver in a pedestrian-automobile collision when the driver is confronted with a sudden emergency not of his or her own making and only then when he or she reacts as well as could reasonably be expected under the circumstances. There is no mutuality of risk between a pedestrian and automobile. The operator of a dangerous instrumentality, such as an automobile, creates a great risk of bodily harm to others. The pedestrian, on the other hand, endangers himself only and owes a duty primarily to himself. In contrast, the automobile operator owes a duty to the public to protect it from the danger created by that instrumentality. The motorist runs little risk of harm, physical or financial, from the pedestrian’s negligence. Thus, a pedestrian’s contributory negligence cannot bar his or her recovery where the motorist could have avoided the accident through the exercise of reasonable care. Baumgartner v. State Farm Mutual Automobile Ins. Co., 356 So.2d 400 (La.1978); See also, Dufrene v. Dixie Auto Ins. Co., 373 So.2d 162 (La.1979); Ellender v. Attaway, 186 So.2d 171 (1st Cir.1966); Sixkiller v. Prechter, 118 So.2d 698 (Orl.La.App.1960).

The statutory law of this State is also clear as to the heavy burden upon motorists to protect pedestrians. La. R.S. 82:214 provides;

“... every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.”

Defendant testified she first saw the plaintiff when plaintiff was entering the first traffic lane and that she observed her walk across all three traffic lanes, that the area was well lit and that plaintiff was not aware of defendant’s approach because plaintiff was looking straight ahead. She further testified there were no other vehicles on the road to interfere with fully changing lanes and that she did not blow her horn, blink her lights or swerve to avoid the accident. She stated she did apply her brakes but the evidence reveals there were no skid marks to indicate that the brakes were applied with as much force as possible to avoid impact. Besides defendant’s testimony, the undisputed testimony of the accident reconstruction expert is that defendant had ample time and space on the roadway to have reacted and avoided the accident. He positively concluded from the approximate speed of the vehicle, speed of the pedestrian, lack of congestion on the roadway and the distance from the time defendant first observed the plaintiff to the time of impact, that the defendant had at least two options open to her to avoid the accident. Defendant could have either stopped her vehicle in her own lane, or she could have swerved the vehicle into another lane. The evidence further indicates the possibility of defendant avoiding the accident completely by merely slowing her vehicle before plaintiff was struck when she was just one step from the neutral ground.

Thus, the facts of this case do not demand the application of the “sudden emergency” doctrine and a declaration that the accident was unavoidable. Clearly, this accident could have been avoided had the defendant exercised reasonable care and used the options available to her.

Defendant-appellant contends the trial court’s award of damages was excessive as to future loss of wages and to pain and suffering and should be reduced by this Court. Defendant has not made a clear showing that the trial court abused the great discretion vested in it. Anderson v. Welding Testing Laboratory, 304 So.2d 351 (La.1974).

Plaintiff has sustained a 20% disability about her left knee. Prior to the accident, plaintiff had been employed nine years for a tomato packing company earning minimum wage. Her job required that she “stand on the line” in order to check the quality of the tomatoes. After nine years she had not shown any other skills in any other areas. The orthopedic surgeon stated that the type of work she had done for nine years would “aggravate” her condition and was “excessive” for her now. He testified that “she would have difficulty remaining on her feet for an extended period of time” as her job required. Her co-workers testified that in the three months she attempted to work, after her discharge from physical therapy, she was unable to do her job. She had to sit down most of the time and often her leg would collapse out from under her.

The economist testified that if she had been totally disabled her adjusted loss of future income would be $240,625.00. The trial court’s award of $40,000.00 for loss of future income is certainly not an abuse of discretion, and is acceptable to this Court.

There is no doubt that plaintiff sustained serious and painful injuries. A careful and complete review of the record indicates plaintiff suffered excruciating pain. Plaintiff’s pain was so severe that she constantly cried while in the hospital and was on morphine for four days. On one occasion she had to be given morphine twice within a fifteen minute period. Before and after the morphine, plaintiff had to be given codeine. In view of the severity of the pain and the fact that plaintiff will undergo future surgery we do not feel there was any manifest error in the trial judge’s award for pain and suffering.

For the reasons assigned the rulings of the trial court as to damages and liability are affirmed.

AFFIRMED.


text:
    Tammy PILIPOVICH v. NEW ORLEANS PUBLIC SERVICE, INC., et al. Mary WASHINGTON v. NEW ORLEANS, PUBLIC SERVICE, INC., et al. Barbara MITCHELL v. NEW ORLEANS PUBLIC SERVICE, INC., et al. Eloise JONES v. NEW ORLEANS PUBLIC SERVICE, INC., et al.
    Nos. 13193-13196.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Guy J. D’Antonio, D’Antonio, Hose & Stansbury, New Orleans, for plaintiff/ap-pellee Barbara Mitchell.
    Preston G. Sutherland, New Orleans, for plaintiff/appellee Eloise Jones.
    John B. Perry, Gertler & Gertler, New Orleans, for plaintiff/appellee Mary Washington.
    Kenneth B. Krobert, Torres & Bischof, Chalmette, for plaintiffs/appellees Tammy Pilipovich and Rafaela Martinez.
    Floyd F. Greene, New Orleans, for defendant/appellant.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   LOBRANO, Judge.

The plaintiffs in these consolidated cases were passengers aboard a New Orleans Public Service (NOPSI) bus that was involved in a vehicular accident on July 3, 1978 at the intersection of North Rampart and St. Ann Streets in the City of New Orleans. The bus was proceeding on North Rampart Street in a downtown direction toward the Industrial Canal. An auto driven by Gregory St. Etienne was traveling on North Rampart Street in an uptown direction toward Canal Street. Upon reaching the intersection of North Rampart and St. Ann Streets, the auto made a left turn into the path of the oncoming bus wherein a collision occurred. Plaintiffs, all passengers on the bus, sustained injury, and instituted these proceedings against NOPSI and Gregory St. Etienne.

The trial court found both the left turning motorist and NOPSI negligent. Only NOPSI perfects this appeal.

Louisiana law is clear that a common carrier owes a duty to its passengers to see that they reach their destination safely. Galland v. New Orleans Public Service, Inc., 877 So.2d 84 (La.1979). As Justice Blanche stated in the Galland case.

“... We hold that the mere showing of an injury to a fare-paying passenger on a public convenyance and his failure to reach his destination safely imposes upon the carrier the burden of exculpating itself of negligence.” Id. at 85.

In the instant case, plaintiffs proved they were fare-paying passengers, and failed to reach their destination safely. Once those facts are established, the burden shifts to the - carrier to show that its driver was free from negligence. Holman v. New Orleans Public Service, Inc., 398 So.2d 1233 (La.App. 4th Cir.1981).

The evidence reveals that the driver of NOPSI’s bus was proceeding at a “rapid” rate of speed, that the bus was over crowded, and that she had time to avoid the collision. We agree with NOPSI’s argument that the left turning motorist was negligent. However, it is also clear to this Court that NOPSI was not free from negligence. The testimony convinces us that NOPSI’s driver could have avoided the accident had she not been traveling at a rapid rate of speed, and had the vehicle under control. The evidence shows that the driver did not apply the brakes nor blow the horn. If she had, perhaps the accident would have been avoided since only the right rear quarterpanel of the left-turning vehicle was struck. NOPSI owes a duty to its passengers separate and distinct from the duty owed by a left turning motorist. There is a “heavy” presumption of negligence accompanying a carrier’s duty of care toward its passengers. Makas v. New Orleans Public Service, Inc., 410 So.2d 351 (La. App. 4th Cir.1982).

NOPSI argues that the bus driver was not speeding, and could not have avoided the accident. The record reveals that the speedometer on the bus was broken, and therefore the driver could not verify if she was below the 35 miles per hour speed limit. Further, traffic congestion and road conditions should dictate the rate of speed of a common carrier. The obligation is to maintain a safe rate of speed under the given circumstances.

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb the factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review...” Canter v. Koehring Co., 283 So.2d 716, 724 (La.S.Ct.1973).

The evidence presented, coupled with NOPSI’s common carrier status, clearly support the trial court’s conclusion. Therefore, for the reasons set forth above, the judgment of trial court is affirmed.

AFFIRMED.

WILLIAMS, J., concurs without reasons.


author: WILLIAMS, Judge.

text:
    Mary Ann Seligman OHMAN v. John Nathaniel OHMAN.
    No. 13179.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Burton G. Klein, Klein & Klein, New Orleans, for plaintiff-appellee.
    H. Gregory Walker, Jr., Trimble, Ran-dow, Percy, Smith, Wilson & Foote, Alexandria, for defendant-appellant.
    Before KLEES, LOBRANO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment of the Civil District Court contesting the award of custody of the minor child, Catherine Oh-man. This is the second time that this matter has been before this court. The earlier proceeding involved custody of the same minor child, wherein the father was granted custody of the child two years after the divorce decree. In the previous appeal, 405 So.2d 883, another panel of the Fourth Circuit reversed a ruling of the trial court granting custody to the father. The case was remanded to determine if there had been any change in circumstances since the initial grant of custody to the father. Upon a remand of this matter, the trial court awarded the mother custody of the child. This is an appeal from the trial court’s award of custody of the child to the mother.

The minor child is Catherine Ohman, who was born on February 26, 1973. In May, 1978, John Ohman, the child’s father, obtained a divorce from Mrs. Ohman and custody was awarded by consent to Mrs. Ohman. (Although Mrs. Ohman subsequently remarried, for purposes of clarity, she will be referred to as Mrs. Ohman in this opinion). The father was awarded weekly visitation rights. The paternal grandparents were also allowed to exercise the father’s visitation rights on any weekend that he was unable to do so because of work. The parties abided by the terms of the original judgment without complication until April 13, 1979. At that time, the child’s grandfather called upon Mrs. Ohman who refused to allow him to pick Catherine up representing to him that the child was ill.

In June, 1979, Mrs. Ohman moved to New York with her daughter to improve her career prospects by taking a temporary assignment there.

On February 8, 1980, Mr. Ohman filed a petition for a writ of habeas corpus seeking custody of the child. Mrs. Ohman was served the citation and petition, and on February 11th, custody was awarded to Mr. Ohman on the basis of his uncontradicted evidence. Shortly after this judgment, Mr. Ohman went to New York, accompanied by a detective, to pick up his daughter and bring her back to New Orleans. The mother failed to file an appeal from the judgment of February 11th. On March 14,1980, she filed “A Motion To Vacate and/or Change Judgment Awarding Custody of Minor Child to Father”. This motion was denied by the trial court. The mother then applied for a new trial and this was also denied. From the denial of her application for a new trial and the denial of her motion to vacate the judgment, the mother was granted a devolutive appeal to this Court. Ohman v. Ohman, 405 So.2d 883 (La.App. 4th Cir.1981), [hereinafter Ohman # 1],

Matters of child custody arising, at divorce, and in post-divorce changes of custody, are governed by the Civil Code. La. Civil Code Article 157, as amended, provides the applicable law in this case. This article states that changes of custody are to be made in accordance with the best interest of the child. In discussing the appropriate standard of proof applicable to change of custody cases, the Supreme Court in Borde-lon v. Bordelon, 390 So.2d 1325 (La.1980), said:

“... the best interest of the child, and not the possibility of harm, is the sole criteria applicable to change of custody cases.” Id. at 1328.

Thus the determination to be made is whether it is in Catherine’s best interest to be in the custody of her mother, or her father.

The only criteria applicable to child custody and change of custody cases is simply what is in the best interest of the child. Bordelon, supra; Autrey v. Highbaugh, 395 So.2d 464 (La.App.3d Cir.1981). We find the appropriate standard of appellate review in custody matters to be clearly stated in Bordelon:

This court has clearly stated that in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. Fulco [v. Fulco, 259 La. 1122, 254 So.2d 603 (La.1971) ]; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is ‘clearly wrong’. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact.

See also Joseph v. Joseph, 407 So.2d 519 (La.App. 4th Cir.1981); Tusson v. Price, 403 So.2d 1265 (La.App. 4th Cir.1981); Cooper v. Cooper, 398 So.2d 171 (La.App.3d Cir.1981). This rule of appellate review is based on the premise that a trial judge is in a better position to evaluate and determine the best interest of the child because he has an opportunity to observe the conduct and character of both the parties seeking custody and of the child herself.

Based upon a review of the record, we are unable to say that the trial court abused its discretion in awarding custody of Catherine Ohman to Mrs. Ohman, her mother.

The additional evidence presented at the rehearing on this custody rule, shows that the child’s mother returned to New Orleans to reside with her husband, Mr. Ryan, and resided in Metairie. After her return, her husband’s brother and her brother stayed with the family temporarily, but no longer reside with them. The mother also has a child by her second husband, Mr. Ryan. Catherine’s father has also remarried and has a second child. At the time of this second trial, Catherine was attending Holy Name of Jesus School and was in the middle of the third grade. Her stepmother did not work, but stayed home to take care of her baby and Catherine. The stepmother actively participated in duties at Catherine’s school on a volunteer basis. At the time of the prior custody proceedings, the father’s job often required him to be away at sea. Since then, he has been transferred to a landbased job.

Our review of the evidence indicates that either parent would be qualified to care for Catherine. Based on this evidence, the trial court’s award of custody was not an abuse of its discretion.

The trial court awarded custody back to the child’s mother. In our earlier decision in Ohman # 1, this court directed the trial court to return custody to the mother unless it could be shown, upon the presentation of additional evidence, that circumstances had changed so that custody in the father would better suit the best interest of the child. We do not believe that this court incorrectly urged the application of “maternal preference” in violation of the amended provisions of La. Civil Code Article 146 and Article 157 in that previous opinion. Furthermore, the record does not show that the trial court awarded custody on the basis of any consideration other than the best interests of the child.

We believe that it would not be in the best interests of the child to complicate these proceedings by reversing the trial court again. We do realize that one of the inherent problems in a child custody case, in light of Bordelon, is that one party, erroneously awarded custody, may argue that he or she should retain custody because it would not be in the child’s best interests to remain in the same household, without having to undergo the possible trauma and turmoil of relocation.

Another issue on appeal is the trial court’s error in failing to allow a licensed psychiatric social worker to testify. The witness was qualified and accepted by the trial court as an expert. Prior to trial, however, the court indicated that it would not entertain testimony in this regard, but would allow instead, counsel to make a proffer. A review of the proffer shows that this psychiatric social worker conducted an examination of Catherine. She reached a determination that it would be in the best interest of the child to remain in the custody of her father. Although we believe that the trial court was in error in refusing to allow the witness to testify, after reviewing the proffer, we do not believe that the evidence would have changed the outcome of the trial court’s judgment. This assignment of error lacks merit.

For the foregoing reasons, the judgment of the trial court is AFFIRMED.

AFFIRMED.


text:
    Gloria Jean HAYNES, etc. v. Clarence CARGO.
    No. 13200.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Charles R. Jones, New Orleans, for plaintiff-appellee.

      Garland R. Rolling, Michael Baham, Me-tairie, for defendant-appellant.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment of the trial court finding that defendant is the father of the plaintiffs child and is required to pay $400.00 a month as child support. Pursuant to that judgment, defendant, periodically contributed approximately $15.00 to $25.00 per week in child support. Six years prior to the institution of this law suit, defendant was required by juvenile court to pay an unknown amount of child support. The present action is essentially one to increase the award to $600.00 per month. The defendant had made an offer on the record to pay $125.00 per month which plaintiff rejected.

Although plaintiff alleges that defendant, Clarence Cargo, is the father of her child, at the time of the child’s conception, he was married to someone else.

Defendant has signed a Notarial Act acknowledging his paternity of this child. This act was dated July 10,1972, a few days after the child’s birth. There is no evidence in the record to show defendant later refuted or filed an action to disavow paternity. This acknowledgment later resulted in the alteration of the child’s birth certificate by the State Registrar of Vital Statistics to reflect that defendant was the natural father of the child. Plaintiff offered, introduced and filed into evidence a certified copy of the child’s birth certificate. We agree with the trial court that defendant is the natural father of the child.

Additionally, defendant testified at trial that he was the father of the child. (R. Tr. p. 2). We find that the trial court was within its discretion to believe the testimony and to disregard a later attempt to refute it. Upon adequate proof of paternity, an illegitimate child is entitled to support. In Re: The Minor Tyson, 306 So.2d 822 (La.App. 2d Cir.1975).

Defendant argues that since he is not married to the mother of the child, there should be no presumption that he is the father of the child. La.C.C. arts. 184-190 govern the presumptions of paternity. These presumptions are not applicable to this case because defendant has acknowledged the child. He is still required to support his illegitimate child under Civil Code arts. 203, 239 and 240.

La.C.C. art. 203 provides:

The acknowledgment of an illegitimate child shall be made by a declaration executed before a Notary Public, in the presence of two witnesses, by the father and mother or either of them, or it may be made in the registering of the birth or baptism of such child.

This article only requires acknowledgment of paternity to create the right for an illegitimate child to claim support. See Escort v. Lafargue, 142 So.2d 549 (La.App. 4th Cir.1962).

Civil Code Article 239 provides for reciprocal duties of support between parents and, illegitimate children. Article 240 requires support of the illegitimate children when they are in need. Two criteria in Article 240 must be met before an illegitimate may receive support. These are: (1) having been legally acknowledged by both father and mother, or by either of them from whom they claim alimony, and (2) prove in a satisfactory manner that they stand absolutely in need of such alimony for their support. This child has been legally acknowledged by defendant’s own acts of acknowledgment and by his judicial admission. We do not find that the trial court was in error in determining that the child was entitled to support.

The determination of the amount to be awarded is within the sound discretion of the trial court. Based upon the evidence in the record, it was not an abuse of the trial court’s discretion to award $400.00 per month in child support.

Absent manifest error, we cannot substitute our discretion for that of the trial court. The trial court examined all aspects of this case carefully and reached its conclusion fairly and we think without error.

In view of the Code articles, the judicial admission of paternity and the introduction into evidence of the altered birth certificate indicating that defendant is the father of the child, the- trial court appears to have correctly decided the issues of paternity and child support.

For the foregoing reasons, the decision of the trial court is affirmed, all costs to appellant.

AFFIRMED.


author: ROY NOBLE LEE, Justice, PRATHER, Justice, HAWKINS, Justice,

text:
    CITY OF WIGGINS, Mississippi v. O.E. BREAZEALE.
    No. 53566.
    Supreme Court of Mississippi.
    Sept. 29, 1982.
    Rehearing Denied Dec. 15, 1982.
    Donald M. Waits, Wiggins, for appellant.
    Holleman & Krogstad, Michael B. Holle-man, Gulfport, for appellee.
   ROY NOBLE LEE, Justice,

for the court.

The Chancery Court of Stone County, Honorable Jason H. Floyd, Jr., presiding, overruled a general demurrer and denied certain affirmative defenses, interposed by the City of Wiggins, to a petition by O.E. Breazeale to vacate a part of certain streets appearing in a municipal plat, and then granted an interlocutory appeal from that decree.

The sole question considered by this Court on the appeal is whether or not the chancery court had jurisdiction of the subject matter in litigation and should have sustained the demurrer. Stated differently, we consider whether or not municipalities or counties have exclusive jurisdiction to close and vacate streets and alleys, or has concurrent jurisdiction with the chancery court for that purpose.

The appellee charged in the petition to vacate a portion of Church Street and Second Avenue that the parts of said streets involved had never been opened or used as a street, was dormant land, and of no value to anyone except the petitioner. Appellee prayed that the court render a decree vacating said parts of those streets and cancelling rights and interests of other persons and the public in same.

The appellant contends that municipalities have the exclusive right and power to close and vacate streets, and relies upon Mississippi Code Annotated § 21-37-7 (1972), which follows:

The governing authorities of municipalities shall have the power to close and vacate any street or alley, or any portion thereof. No street or alley or any portion thereof shall be closed or vacated, however, except upon due compensation being first made to the abutting landowners upon such street or alley for all damages sustained thereby.

The statute under which appellee proceeded is Mississippi Code Annotated § 19-27-31 (1972), which provides:

If the owner of any land which shall have been laid off, mapped, or platted as a city, town or village, or addition thereto, or subdivision thereof, or other platted area, whether inside or outside a municipality, shall be desirous of altering or vacating such map or plat, or any part thereof, he may, under oath, petition the chancery court for relief in the premises, setting forth the particular circumstances of the case and giving an accurate description of the property, the map or plat of which is to be vacated, or altered, and the names of the persons to be adversely affected thereby, or directly interested therein. The parties so named shall be made defendants thereto, and publication summons shall be made one time in a newspaper published, or having a general circulation, in the county where the land is situated, and which publication shall clearly state the objects and purposes of the petition.
At any time after the expiration of five days from said publication and the service of process upon the named defendants, the cause or proceeding shall be triable, and the court in term time or the chancellor in vacation may hear the petition and all objections from any person thereto, and may decree according to the merits of the case. However, where all adversely affected or directly interested persons join in said petition, the same may be finally heard and determined by the court or chancellor at any time. If the decree vacate, in whole or in part, or alter the map or plat, it shall be recorded as a deed, and a memorandum thereof noted on the record of the map or plat.

Section 19-27-31 authorizes altering or vacating a map or plat, or any part thereof, under the conditions stated therein, and does not conflict with or encroach upon Section 21-37-7. Where the part of a plat or subdivision to be altered involves a street, alley, or property dedicated to the public, the logical sense of the statute is that such areas have never been opened and used for those purposes. When the plat is altered or vacated, those areas, for all practical purposes, are expunged from the plat and it becomes a recorded plat with such street, alley or public property not included or appearing therein.

The statute requires that all persons adversely affected by, or directly interested in, a proposed alteration of the plat be made defendants with the right to appear, object and give reasons why the plat should not be altered or vacated. Persons affected include the municipality or county. Certainly, a municipality or county which had plans, or a need, for the unopened public property would appear and show that interest to the court. In such event, it is reasonable to assume that the court would deny alteration or vacation of the plat. See Hunter v. Des Moines, 144 Iowa 541, 123 N.W. 215 (1909); Sarvis v. Caster, 116 Iowa 707, 89 N.W. 84 (1902).

Section 21-37-7 grants municipalities the power to close and vacate any street or alley, or any portion thereof, and requires payment of due compensation to abutting landowners. That power is necessary for a municipality to properly function in the area of designation, operation, and maintenance of streets. It does not conflict with the power granted to the chancery court by Section 19-27-31.

The case of Reinecke v. Reinecke, 105 Miss. 798, 63 So. 215 (1913), involved the alteration of a plat where errors had been made in the instrument. The case is not authority that Section 19-27-31 is for the only purpose of correcting and altering a plat where some error occurred in its preparation.

Almost one hundred years ago, the Iowa Supreme Court had a question before it, similar to that here, in Connor v. Iowa City, 66 Iowa 419, 23 N.W. 904 (1885). Two Iowa statutes are almost identical to the Mississippi statutes, and the Court held that a landowner was authorized to obtain vacation of a plat where the city council had the same power as conferred by the Mississippi statute (Section 21-37-7). That case involved the right of a plaintiff to vacate part of the plat of an addition to Iowa City. He claimed the right to vacate two blocks, and the streets and alleys through the same, and, by a written instrument executed, acknowledged, and recorded, he declared the same vacated. The defendant, by its street commissioner, proceeded to open up a street between said two blocks. By this action, the plaintiff demanded that the defendant be enjoined from interfering with the inclosure of the two blocks in common. After the defendant answered the petition, a trial was had, and a decree was entered perpetually enjoining the defendants as prayed in the petition. On appeal, the Court said:

It is true, the city council has the “power to lay off, open, widen, straighten, narrow, vacate, extend, establish, and light streets, alleys, public grounds, wharves, landing and market places, and to provide for the condemnation of such real estate as may be necessary for such purposes.” (Code, § 464;) but the plaintiff had express authority, conferred by statute, to vacate the plat, and having done so the city council had no authority to make an ex parte judicial determination that the plaintiffs acts were void. The order of the city council that the street should be opened, involves the question whether there was any street in existence to be opened. Before this order was made the vacation was filed and recorded, and the rights of the parties fixed, subject only to an inquiry in the courts whether or not the rights of others were injuriously affected by the vacation. Affirmed. [66 Iowa at 419, 422, 23 N.W. at 904, 905].

We have considered Barrett v. Pilgrim, 317 So.2d 382 (Miss.1975). There, a suit was instituted in the Chancery Court of Nesho-ba County by one landowner against another, both abutting a public road, seeking an injunction to prevent the latter from closing the road. The lower court closed it with certain limitations, and this Court held that the chancery court exceeded its authority. Barrett is distinguished from the case sub judice, since no plat was involved and the suit was not for the alteration of a plat and vacation of a street which had not been opened.

We are of the opinion that a municipality does not have exclusive authority to close and vacate streets and alleys, particularly in situations where they have never been opened, and that the chancery court has authority under Section 19-27-31 to alter and vacate maps or plats, or any part thereof, under facts and circumstances coming within the statute, resulting in vacation of the street or property affected, and that the lower court correctly overruled the demurrer.

We decline to address the questions raised by the pleas, affirm the judgment overruling the demurrer, and remand for trial on all questions.

AFFIRMED AND REMANDED.

PATTERSON, C.J., WALKER, P.J., and BROOM and BOWLING, JJ., concur.

HAWKINS and PRATHER, JJ., SUGG, P.J., and DAN M. LEE, J., dissent.

PRATHER, Justice,

dissenting:

With deference, I respectfully dissent from the conclusion of the majority that the chancery court has concurrent jurisdiction with the governing authorities of municipalities to close municipal streets.

A fuller recital of the facts is necessary to reach all the conclusions of this dissent. Breazeale owned lands on all sides abutting parts of Church Street and Second Avenue in the City of Wiggins. Breazeale has twice made requests before the City Board of Wiggins to close such streets and was twice refused. The first request and refusal occurred on April 13, 1979. A second request resulted in an ordinance dated June 3, 1980, which also denied a closure of the street parts.

Breazeale chose not to appeal either board decision to the circuit court as permitted by Mississippi Code Annotated section 11-51-75 (1972), but instead filed a petition to vacate part of the streets with the Chancery Court of Stone County under section 19-17-31 of the Mississippi Code Annotated (1972), said suit being filed March 30, 1981. The City of Wiggins filed an answer containing a demurrer. At the hearing on the demurrer the court received into evidence exhibits of board of aldermen meetings, plats of the lots in question, and a letter of recommendation to deny closure from the city engineer. Nonetheless, the chancellor denied the demurrer and granted the City of Wiggins an interlocutory appeal to this Court.

I.

The City of Wiggins’ first contention on appeal is that by legislative enactment municipalities have exclusive jurisdiction over the closing of streets or roads within their municipal boundaries and, therefore, that the courts may review such matters only through the statutorily prescribed appellate procedure.

The construction, maintenance, care and disposition of roads and streets are matters under the control of the state in its sovereign capacity as represented by its Legislature. See Miss. Const, art. 4, § 85 (Legislature shall provide for working of public roads); Miss. Const, art. 6, § 170 (control and supervision of roads by Legislature). The Legislature may therefore exercise that power and responsibility directly or delegate it to municipalities and other governmental bodies. See 39 Am.Jur.2d Highways, Streets, and Bridges, § 72 (1968) (same policy followed by other jurisdictions). Our Legislature has delegated such powers and responsibilities to various entities. The Mississippi Highway Commission controls the highways which comprise the state highway system. Miss.Code Ann. § 65-1-59 (1972). The board of supervisors has full control over the roads in their respective counties, Miss.Code Ann. § 19-3-41 (1972), and municipalities have control over the roads within their borders. Miss. Code Ann. § 21-37-3 (1972). Each of these entities has been granted the power to close streets. Section 21-37-7 of the Mississippi Code Annotated (1972) is the applicable statute granting such power to municipalities with regard to their streets. Section 21-37-7 provides:

The governing authorities of municipalities shall have the power to close and vacate any street or alley, or any portion thereof. No street or alley or any portion thereof shall be closed or vacated, however, except upon due compensation being first made to the abutting landowners upon such street or alley for all damages sustained thereby.

However, the appellee, Breazeale, offers section 19-27-31 Mississippi Code Annotated (1972) as an additional statute which grants the power to close a municipal street to the chancery court on petition of abutting landowners. The section states:

If the owner of any land which shall have been laid off, mapped, or platted as a city, town or village, or addition thereto, or subdivision thereof, or other platted area, whether inside or outside a municipality, shall be desirous of altering or vacating such map or plat, or any part thereof, he may, under oath, petition the chancery court for relief in the premises, setting forth the particular circumstances of the case and giving an accurate description of the property, the map or plat of which is to be vacated, or altered, and the names of the persons to be adversely affected thereby, or directly interested therein.... [Emphasis added].

In resolving this so-called statutory conflict, the majority referred to interpretations of Iowa statutes which were allegedly similar to the two Mississippi statutes in question. The dissent submits that the case law of this Court in resolving comparable situations is more persuasive and binding on this Court than is an 1885 Iowa decision.

In Barrett v. Pilgrim, 317 So.2d 382 (Miss.1975), where one group of property owners sought to enjoin another group of owners from closing a public road, our Court first required formal action by public authorities. The Court stated there as follows:

The Court is without power, however, to close a public road in private litigation between individuals unless such action is predicated upon a finding that there has been a valid order of the board of supervisors closing the road, spread upon its minutes, if it is a county road, or that similar official action has been taken by the Mississippi State Highway Commission and is reflected by its official records if it is a state road or highway. [317 So.2d at 383].

It should also be noted that the Barrett Court also cited the old case of Hatch v. Board of Supervisors, 56 Miss. 26, (1878), wherein our Supreme Court further stated: “... [T]he road was to be ‘kept open’; and, until an unequivocable surrender by the board of supervisors of the right of the public to the road, the owner of the fee had no right to close it.” It is my opinion that the Barrett and Hatch decisions above require a comparable analysis with regard to municipalities and municipal streets. In other words, the closing of a municipal street requires formal action by municipal authorities.

II.

Additionally, a literal reading of section 19-27-31 wholly fails to indicate that the Legislature intended the statute to be used by individuals desirous of closing streets, whether inside or outside of municipalities.

This statutory provision falls under the heading of “Surveyors and Surveys” and is preceded by several consecutive provisions pertaining generally to the making of maps and plats (§ 19-27-21), the form of the maps and plats (§ 19-27-23), the contents of the maps and plats (§ 19-27-25), the recording of the maps and plats in the office of the chancery clerk (§ 19-27-27), and penalties for selling lots before their maps or plats are recorded (§ 19-27-29). The major purpose of section 19-27-31 is apparently to provide a means for an owner to have the map or plat corrected. See Reinecke v. Reinecke, 105 Miss. 798, 63 So. 215 (1913) (owner claimed that there were errors in the descriptions of the several lots conveyed and that the map of the county surveyor was therefore incorrect).

It is readily apparent that section 19-27-31 of the Mississippi Code Annotated (1972) is a statutory procedure to alter or to vacate a map or plat, but not to close a municipal street. This statute was not intended to give an abutting landowner a remedy in contradiction to section 21-37-7. The Legislature has prescribed a statutory procedure for the closing of municipal streets, and the exclusive power is vested in municipal authorities by virtue of section 21-37-3.

It is interesting to note that the first footnote of the majority opinion recognizes that this is a petition not to alter or vacate a plat, but to close a street.

This dissent respectfully concludes that the chancery court should have granted the City of Wiggins its general demurrer and would have reversed and rendered this decision had its position prevailed.

This appeal addresses other issues not covered by the majority opinion.

I respectfully dissent.

SUGG, P.J., and HAWKINS and DAN M. LEE, JJ., join in this dissent.

HAWKINS, Justice,

specially dissenting:

I join in the dissent of Justice Prather.

The purpose of chancery court actions is to remove clouds upon title, to quiet and confirm title. Thanks to the majority this case is going back to the chancery judge with instructions to bring about precisely the opposite result.

If the chancellor removes a street from an official map, who is going to own the property? The law abhors a vacuum, yet this is precisely what will result upon directing an official map be redrawn so as to remove a street.

On what theory can the complainant, Breazeale, possibly own the street that is removed from a public map? If he has no potential title or interest therein, why should he want the map redrawn so the street would be removed from the official map? Will the city continue to own this property? The city has taken no official action to indicate an abandonment of the street, and objects to the map being altered.

We are laying problems at the doorsteps of the chancery court and giving no guidance whatever.

There are clear, definite statutory procedures for closing and vacating streets. The complainant followed one step through the city council, but perfected no appeal to the circuit court. This should terminate the matter. The attempt to achieve the same result through a statutory method designed only to correct or change official maps, not ownership, can only serve to befuddle chancery judges and title lawyers in this state.

SUGG, P.J., joins this dissent.

      . The petition did not ask that the plat be altered or vacated.

      . In Sarvis v. Caster, the Court said: “Ground left for streets in plats is intended for use in the future, and the streets ought not be vacated so long as it is reasonably apparent that they will be necessary for public travel. This, we think, a valid objection within the meaning of the statute.” [89 N.W. at 85],