text:
    Henry HARRIS, et al. v. PIZZA HUT OF LOUISIANA, INC. et al.
    Nos. CA 0739, CA 0740.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Writ Granted March 23, 1984.
    Charles A. Boggs, Chester A. Fleming, III, Boggs, Loehn & Rodrigue, New Orleans, for defendants-appellants.
    Charles R. Jones, and John S. Keller, New Orleans, for plaintiffs-appellees.
    Before REDMANN, SCHOTT and CIAC-CIO, JJ.
   CIACCIO, Judge.

Plaintiffs are the husband and children of Valletter Harris. Mrs. Harris was killed by a shotgun blast fired by one of the robbers during the perpetration of an armed robbery of a Pizza Hut. Plaintiffs instituted this wrongful death action against Pizza Hut and its insurer, St. Paul Fire and Marine. Zina Harris, one of the children, was injured during the robbery and also sued Pizza Hut and St. Paul Fire and Marine to recover for her personal injuries.

Plaintiffs alleged that Yalletter Harris’ death and Zina Harris’ personal injuries resulted from the negligence of the security guard on duty at the time of the robbery. Pizza Hut defended the suit by arguing that the security guard, an off-duty uniformed New Orleans police officer, did not act negligently and that his actions did not cause the injuries involved. Rather, Pizza Hut argues, the injuries resulted from a spontaneous violent criminal act for which Pizza Hut should not be held responsible.

Responding to interrogatories, a unanimous jury returned a verdict in favor of the plaintiffs. The jury responded affirmatively that the security guard had been negligent and that his negligence was a cause-in-fact of the harm suffered. The jury then gave awards to Zina Harris for her personal injuries and to each of the children for the loss of their mother. The jury did not give any award to Mr. Harris, perhaps because Mr. and Mrs. Harris were separated at the time of her death.

Defendants have appealed, arguing that the jury verdict is clearly wrong in finding defendants liable. Further, defendants argue that the trial court committed reversible error by failing to properly instruct the jury. Plaintiffs argue that the judgment should be affirmed. After careful review and consideration, for the reasons that follow, we reverse.

Shortly after 9 p.m. on a Saturday evening, March 17, 1979, New Orleans Police Officer Maxie Walker arrived in uniform at the Pizza Hut on the corner of Port St. and Claiborne Avenue. Officer Walker had been employed by Pizza Hut to work as a security guard from 9 p.m. until 1 a.m. on this evening. Subject to police department approval, working paid off-duty details was a common practice among New Orleans police officers. Officer Walker had worked this detail at Pizza Hut before.

Upon arriving at the Pizza Hut, Officer Walker informed the manager that he would be working until 1 a.m. Officer Walker then fixed a salad and a soft drink and sat facing the entrance at a table near the entrance, eating his salad. After a short time Officer Walker was joined by Dewayne Thomas, a fifteen year old who frequented the Pizza Hut and occasionally did odd-jobs for pay at the request of the manager.

Some time before 10 p.m. Valletter Harris, three of her children and Mr. Louis Rogers entered the Pizza Hut as patrons. They sat at a table located one row farther from the entrance and two tables behind the table where Officer Walker was seated.

At approximately 10 p.m. an armed robbery occurred at the Pizza Hut. One of the robbers entered with a sawed-off shotgun and standing across the table from Officer Walker, leveled the shotgun at the officer and instructed him not to move. Gunfire erupted during the course of the robbery. A single blast from the sawed-off shotgun killed Yalletter Harris and injured Zina Harris and Officer Walker. Officer Walker shot and killed one of the robbers and wounded another. The wounded robber was later apprehended. A third robber escaped from the scene and was never apprehended. No one else was injured of the twenty to thirty people estimated to have been in the Pizza Hut at the time of the robbery.

The trial testimony was fairly consistent concerning the circumstances and events prior to the robbery. The testimony concerning what occurred during the robbery, however, was irreconcilably conflicting.

Officer Walker, Dewayne Thomas and several other witnesses testified that shortly after the robber entered he unexpectedly fired the shotgun, whereupon Officer Walker returned fire. Officer Walker believed that the robber he had killed had been the one with the shotgun, and Dewayne Thomas was “positive” that the dead robber shown in police photographs from the night of the crime, was the one who wielded the shotgun. Moreover, photographs of the shotgun taken immediately after the crime show that the shotgun was next to a foot, identified as the dead robber’s from the photographs of his body, perhaps a half a block away in a different direction from that of the wounded robber's flight, according to his testimony. The robber Officer Walker wounded testified, however, that he had been the robber with the shotgun, and that he left it at the door of Pizza Hut. In any case, he and two other witnesses testified that Officer Walker fired first and in response the shotgun was fired.

Initially we note that decisions involving injuries inflicted upon a business patron by an unknown assailant typically deny any recovery to the patron. In Pennington v. Church’s Fried Chicken, 393 So.2d 360 (La.App. 1st Cir.1980), the First Circuit Court of Appeal denied recovery for personal injuries to a patron of a fast-food outlet who was injured when her purse was stolen while she was waiting in line. The court held:

The duty to protect business patrons does not extend to the unforeseeable or unanticipated criminal acts of an independent third person. The owner or management does have a duty to protect patrons when it has knowledge, or can be imputed with knowledge, of the third person’s intended conduct.

Similarly, the court in Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La.App. 4th Cir.1979) denied any recovery against a convenience store proprietor for the death of a patron using the telephone, who was shot during a hold-up attempt. There are numerous other instances of denials of recovery against the operator of a business for injuries inflicted upon a patron by an unexpected assailant. See: McKinney v. Louisiana National Bank, 416 So.2d 948 (La.App. 1st Cir.1982); Guidry v. Toups, 351 So.2d 1280 (La.App. 1st Cir.1977); Hodge v. St. Bernard Chapter No. 36, 338 So.2d 934 (La.App. 4th Cir.1976); Rodney v. Mansur, 219 So.2d 305 (La.App. 1st Cir.1969); Callender v. Wilson, 162 So.2d 203 (La.App.1st Cir.1964).

Trial evidence established that this Pizza Hut had been robbed on several previous occasions. The parties agreed that, if the prior robberies created a duty for Pizza Hut to provide extraordinary security for its patrons, this duty had been satisfied by hiring a trained, uniformed, armed, local police officer as a security guard. The critical issue remaining is whether the police officer/security guard was negligent so as to establish liability for the harm suffered by plaintiffs.

In determining negligence liability the courts of this State have adopted a duty-risk analysis approach. See: Dixie Drive It Yourself System of New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Pierre v. Allstate Insurance Co., 257 La. 471, 242 So.2d 821 (1970); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). The Third Circuit Court of Appeal has expressed agreement with Professor Stone’s comments and observation in his Tort Doctrine, Louisiana Civil Law Treatise, Volume 12, that the process of analysis to determine negligence liability as developed by the courts is, in the end, often only a matter of reaching court policy in a given situation; that is, the finding of negligence is a decision made by the courts to extend the protection of the law to exposure to certain risks. See: Tilley v. Mount Vernon Insurance Company, 411 So.2d 72 (La.App. 3d Cir.1982). In Hill v. Lundin & Associates, Inc., supra, the Supreme Court summed up the concept in these words:

“Where the rule of law upon which a plaintiff relies for imposing a duty is based upon a statute, the court attempts to interpret legislative intent as to the risk contemplated by the legal duty, which is often a resort to the court’s own judgment of the scope of protection intended by the Legislature. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298; Pierre v. Allstate Ins. Co., [257 La. 471, 242 So.2d 821] supra. Where the rule of law is jurisprudential and the court is without the aid of legislative intent, the process of determining the risk encompassed within the rule of law is nevertheless similar. Malone, Ruminations on Dixie Drive It Yourself, 30 La.L.Rev. 363 (1970); McDonald, Proximate Cause in Louisiana, 16 La.L.Rev. 391 (1956). The same policy considerations which would motivate a legislative body to impose duties to protect from certain risks are applied by the court in making its determination. ‘All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.’ Malone, Ruminations on Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956).”

The duty relied upon by plaintiffs is one of the exercise of reasonable care by Pizza Hut for the safety of its patrons. This duty was articulated in Roberts v. Tiny Tim Thrifty Check, supra, and reiterated in Pennington v. Church’s Fried Chicken, supra, as follows:

“A store owner is under a duty to take reasonable care for the safety of his patrons, but he is not the insurer of their safety. Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir.1973); DeHart v. Travelers Ins. Co., 10 So.2d 597 (La.App.Orl.1942); Matranga v. Travelers Insurance Co., 55 So.2d 633 (La.App.Orl.1951). It has also been stated that a proprietor of a public place has a duty to protect his patrons from injuries at the hands of third parties when it is within his power to do so. Cooper v. Ruffino, 172 So.2d 717 (La.App. 4th Cir.1965).”

Plaintiffs also rely on the argument that injury to a patron during an armed robbery is a foreseeable risk. We note that while forseeability is a consideration, it is not the only criterion to be considered. Whether or not the risk falls within the scope of the duty owed must be determined by the court on a case-by-case basis, with each court weighing the policy factors it considers important. Ronstadt v. Begnaud Motors, Inc., 427 So.2d 911 (La.App. 3d Cir.1983).

Plaintiffs argue that Officer Walker was negligent during two periods in time and that these periods of negligence, either separately or together, give rise to liability for the harm suffered by plaintiffs. The first period is that span of time preceeding the robbery. The second period involves the shortened time frame during which the shotgun was fired.

Plaintiffs’ argument concerning the first time period is premised upon the concept that a security guard should deter crime. Further, a security guard properly functioning as crime deterrent may, perhaps, have prevented the robbery from occurring, thus, preventing any injuries sustained during the robbery. We find that, whatever a security guard’s responsibilities toward crime deterrence, the quality of Officer Walker’s performance prior to the robbery did not cause the robbery, much less cause the robber to fire the shotgun. In duty-risk terms, if it may be said that the presence of a visible armed guard outside the door would have discouraged the robbers from attempting the robbery, it still may not be said that Pizza Hut had a duty to station a guard there or that the guard had a duty never to go inside, for example, to eat something.

Trial testimony indicated that the robbery had been planned some days in advance of its execution. Although the robber testified that he did not expect to find a security guard on duty, the evidence does not establish that Officer Walker could have prevented the robbery. Further, whatever did cause the robber to pull the trigger on the shotgun is too far removed from any pre-robbery events for us to hold that the actions of Officer Walker prior to the robbery can form the basis of any liability for the harm caused by the shotgun blast.

Plaintiffs’ second argument is that once the robbery was in progress and the robber had pointed the shotgun at Officer Walker, the actions of Officer Walker during those moments were what caused the robber to fire the shotgun. The robber testified that he intentionally pulled the trigger on the shotgun. That is, he did not accidentally fire the weapon. The robber claims he fired the shotgun only after Officer Walker had first fired at him.

The buckshot fired from the shotgun was the direct and immediate agent of the entirety of harm suffered by plaintiffs. It is clear that, alone, the actions of Officer Walker did not bring about plaintiffs’ harm. The robber had to pull the trigger on the shotgun before any harm could come to the plaintiffs.

As mentioned previously, the testimony is contradictory concerning Officer Walker’s actions while the robber had the shotgun aimed at him. We can only speculate as to what the jury found, or even whether it made a factual finding, concerning this moment during the robbery. We know only that the jury thought that at some point during the evening Officer Walker was negligent, and, that his negligence, whatever it might have been, was a cause-in-fact of the plaintiffs’ harm. Of course, a finding of cause-in-fact does not by itself establish liability. Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976).

We have carefully reviewed the testimony concerning what occurred during the robbery. We find the evidence supports Officer Walker’s version; that is, when the robber pointed the sawed-off shotgun and said “Don’t move”, Officer Walker did not move or draw his pistol until after the shotgun was fired. What prompted the robber to fire the shotgun is unclear, although it may have been the movement of Dewayne Thomas, who was standing next to Officer Walker and dove to the floor in fear of the robber and the shotgun. We find that Officer Walker did not fire first and that the robber fired the shotgun without provocation. Our finding is supported by testimony, which contained no significant inconsistencies, from Officer Walker, Dewayne Thomas and three other witnesses who were in good positions to observe the action.

Officer Walker described the sequence of events preceding the gunfire:

“Well, he approached the table approximately four feet away from me with the shotgun leveled point blank at me and said don’t move pig. At that time I just knew that he was going to blow my head off my shoulders. He was definitely going to kill me. I definitely felt I was going to die at that time. A second later, a second, a second and a half later, Dewayne Thomas suddenly moves away from the table, which seemed to have agitated this subject with the shotgun, because he told me not to move and I wasn’t moving, you know, I had my hand on my gun at the time and I didn’t even want to take my hand off the gun and place it on the table, I didn’t want to give him any indication that I was going to try and return fire at him. Dewayne Thomas suddenly moved away from the table, this agitated this subject more with the shotgun and he became nervous and he fired a shot striking me in the shoulder and the remaining pellets went past me killing the lady Valleter Harris.” [Tr.Vol. IX pp 48-49.]
Dewayne Thomas recalled the incident:
“Q. Where were you in relationship to Officer Walker?
A. Right across from him.
Q. Where was the robber in relationship to you and Officer Walker?
A. A couple of feet away.
Q. Were you between Officer Walker and the robber?
A. At one point I was.
Q. At what point was that?
A. When the guy first walked in the door.
Q. All right. What did you do after he yelled don’t move pig?
A. I stepped back and I dove for the floor.
Q. What' happened after that, Mr. Thomas?
A. When I dove for the floor the guy with the shotgun fired.
Q. Now, how do you know that?
A. As I was going down I saw the fire jump out of the shotgun.
Q. And as you were jumping out where was Officer Walker?
A. In his chair.” [Tr.Vol. X, pp. 54-55]

Keith Watson corroborated that the robber fired first:

“A. Okay. Me and the guy I came in with to the Pizza Hut, we had just left the counter, walked back to the table, the lady who worked in the place, she came back and asked us to place our order. Okay. As we were giving our order to her a guy came in with a shotgun to the counter, he didn’t notice the police officer was sitting at the table, turned and fired, hitting the lady next to me at the next table, hitting her in her face. At this time the officer was sitting at the table going to the floor drawing his revolver and shooting back.
Q. All right. The first shot was fired by the robber, is that correct?
A. Yes.
Q. After the first shot was fired by the robber what happened?
A. The officer fell to the floor.
Q. Now, before he fell to the floor, Mr. Watson, had he drawn his gun?
A. No.
Q. When he was shot at where was his gun?
Where was his gun when he was first shot at?
A. In his holster.” [Tr.Vol. X pp. 44-45]

Daniel Brown was seated facing the doorway and could see Officer Walker’s back. He related what he observed:

“Q. Would you tell the ladies and gentlemen of the jury, Mr. Brown what you witnessed on that day?
A. Well, me and a friend, we came in, we ordered a pizza, all right, the lady told us to sit at the table, it would be about twenty minutes, we ordered some beer. All right. She was bringing us a pitcher of beer and I seen one guy come in the door with something on his face, he went toward the counter, I seen the second guy some in the door, turn and shoot.
Q. The person that you saw come into the restaurant, was he carrying anything?
A. He had a shotgun in his hand.
Q. Now, after he came into the restaurant with a shotgun in his hand what did he do with it?
A. He turned and he shot.
Q. All right. Who did he shoot at? A. He shot at the officer that was sitting at the table.
Q. All right. And would you describe for the ladies and gentlemen of the jury what happened after the gun was trained on the policeman?
A. After the gunman shot the policeman returned fire.
Q. After the policeman was shot at what did he do?
A. He returned fire.” [Tr.Vol. X pp. 9, 10, and 13]

Janice Edwards also testified that the robber fired first:

“A. Then another guy walked in and he had a rifle and he said something, I don’t really remember what he said, pig, police, something, I don’t know, but when he saw the policeman he started shooting. I do remember that.
Q. And who was he shooting at?
A. The policeman.
Q. Ms. Edwards, let me show you what purports to be a diagram of the Pizza Hut, this has been identified as Harris 19, would you take a minute to get familiar with it, this being the front door, that being the salad bar and this being the counter area. Are you familiar with it, ma’am?
A. Yes.
Q. All right. Miss Edwards, would you tell the ladies and gentlemen of the jury where you were sitting, what table you were sitting at?
A. E-3.
Q. E-3. All right. That would be all the way against the side of the restaurant where the door is, is that correct? A. Yes, sir.
Q. And which way were you facing, Miss Edwards?
A. Toward the door.
Q. All right. So you had a good view of what was going on, is that correct? A. Yes, sir.
Q. Now, where was the policeman sitting, Ms. Edwards?
A. D-2.
Q. All right. Did you observe the policeman at- the time this was occurring, did you see him, too?
A. Yes, I could see him.
Q. Did he move before he was shot at? A. No.
Q. Where was his gun when he was shot at?
A. I would assume in his holster.
Q. Did the police officer shoot first or did the armed robber shoot first?
A. The armed robber.
MR. KELLER:
Objection, Your Honor.
BY MR. BOGGS:
Q. Who shot first?
A. The robber.
Q. After the robber shot what did the policeman do?
A. It was kind of chaotic then, okay, we were going on the floor when they started shooting and I remember the guy shooting first and then the policeman returned his fire and I think he was telling everybody to get on the floor, too. Q. The policeman was telling everybody to get on the floor?
A. Yes:’” [Tr.Vol. X pp. 27-29]

Even assuming that the robber who testified was the robber with the shotgun, his alternative version, that he returned the fire of Officer Walker, is virtually uncorroborated. The two witnesses whose testimony appears to lend support to the robber’s version, were not in good positions to observe what happened. The line of sight of one of these witnesses, a thirteen year old girl, was obscured by the salad bar, preventing her from having a full view of either the robber or Officer Walker. She did not even recall the salad bar, although every other witness testified as to its existence and its location between the girl and Officer Walker, and photographs confirm their testimony. The other witness, a young man who was standing at the counter waiting for a pizza, testified that at the time the shots were fired his back was to the action and he was running toward the bathroom. His testimony as to who fired first was based on what he heard as, obviously, he did not see what happened.

Having found that Officer Walker did not fire first and that the robber fired without provocation, we hold that Officer Walker is not responsible for the harm done by the blast from the robber’s shotgun.

Because we do not find that the actions of Officer Walker, either prior to or during the robbery, can form the basis for a finding of liability for plaintiffs’ harm, we must reverse the judgment of the trial court. Having reached this result we need not discuss the issues raised by defendant concerning the trial court’s instructions to the jury.

Accordingly, the judgment is reversed and plaintiffs’ case is dismissed.

REVERSED.


source: Caselaw Access Project

author: CIACCIO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kevin BERRY.
    No. KA-1276/1277.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Lawrence J. Centola, Jr., Camp, Car-mouche, Barsh, Hunter, Gray & Hoffman, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for the State.
    Before GARRISON, BYRNES and CI-ACCIO, JJ.
   CIACCIO, Judge.

Defendant, Kevin Berry, appealed to this Court from a ruling of the district court which revoked his probation. No motion to dismiss the appeal has been filed in this Court. It has come to our attention, however, that defendant has no right of appeal from the revocation of his probation. Such a ruling can be reviewed by the court only under its supervisory jurisdiction. State v. Manuel, 349 So.2d 882 (La.1977); State v. Haynes, 255 La. 52, 229 So.2d 697 (1969); State v. Bruno, 253 La. 669, 219 So.2d 490 (1969). cf. La. Const. of 1974 Art. 5 Sec. 10, La.C.Cr.P. Arts. 912 and 912.1.

On December 12, 1983, we issued an order requesting appellant to show cause why the appeal should not be dismissed. Neither party responded to this order.

Accordingly, in light of the above cited authorities, this appeal is dismissed ex pro-prio motu.

APPEAL DISMISSED.


author: JASPER E. JONES, Judge.

text:
    James L. WILLIAMS, Ruby Marie Williams, La. Farm Bureau Insurance Company, Plaintiffs-Appellants, v. AIRPORT APPLIANCE & FLOOR COVERING, INC., Aetna Casualty & Surety Company, James C. Roberson, James E. Roberson, MFA Ins. Co., Defendants-Third Party Plaintiffs-Appellants, and Exxon Corp. & Roberts Consolidated Industries, Defendants-Third Party Defendants-Appellees. Taylor James WILLIAMS, Plaintiff-Appellant, v. AIRPORT APPLIANCE & FLOOR COVERING, INC., Aetna Casualty & Surety Company, James C. Roberson, James E. Roberson, MFA Ins. Co., Defendants-Third Party Plaintiffs-Appellants, and Exxon Corp. & Roberts Consolidated Industries, Defendants-Third Party Defendants-Appellees. Billy BIGGS & Mary Francis Williams Biggs, Plaintiffs-Appellants, v. AIRPORT APPLIANCE & FLOOR COVERING, INC., Aetna Casualty & Surety Company, James C. Roberson, James E. Roberson, MFA Ins. Co., Defendants-Third Party Plaintiffs-Appellants, and Exxon Corp. & Roberts Consolidated Industries, Defendants-Third Party Defendants-Appellees. James L. WILLIAMS as Administrator of the Estates of his minor children Michelle Marie Williams & Mike Williams, Plaintiff-Appellant, v. AIRPORT APPLIANCE & FLOOR COVERING INC., Aetna Casualty & Surety Company, James C. Roberson, James E. Roberson & MFA Insurance Co., Defendants-Third Party Plaintiffs-Appellants, and Exxon Corp. & Roberts Consolidated Industries, Defendants-Third Party Defendants-Appellees.
    Nos. 15879-CA to 15882-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Writs Denied March 24, 1984.

      McKeithen, Wear, Ryland & Woodard by Russell A. Woodard, Monroe, for James L. Williams, Ruby Marie Williams, Taylor James Williams, Billy Biggs, Mary Francis Williams Biggs, James L. Williams as Administrator of the Estates of his minor children Michelle Marie Williams & Mike Williams, & Farm Bureau Ins. Co., plaintiffs-appellants.
    Snellings, Breard, Sartor, Inabnett & Trascher by Kent Breard, Monroe, for James C. Roberson, James E. Roberson and MFA Mut. Ins. Companies, defendants-Third party plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by Charles H. Heck, P.C., Monroe, for Airport Appliance & Floor Covering, Inc., & The Aetna Cas. & Sur. Co., defendants-Third party plaintiffs-appellants.
    Gene S. Palmisano, Trial Atty., New Orleans, for EXXON Corp., defendant-Third party defendant & appellee.
    Hayes, Harkey, Smith & Cascio by J.D. Cascio, Jr., Monroe, for Roberts Consolidated Industries, Inc., defendant-Third party defendant & appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

The plaintiffs in these consolidated cases seek to recover damages sustained by them as a result of a fire that destroyed the home of James L. Williams on January 16, 1978 while the Formica was being replaced in the kitchen.

The plaintiffs in suit # 15,879-CA are James L. Williams, his wife, Ruby Marie Williams and his fire insurer, Louisiana Farm Bureau Mutual Insurance Company. The insurer was subrogated to the damages sustained by James L. Williams to the extent of $46,600 which it paid Williams pursuant to a fire insurance policy covering the Williams’ home. The plaintiff in suit # 15,880-CA is Taylor James Williams, the son of Mr. and Mrs. James L. Williams. The plaintiffs in suit # 15,881-CA are Billy Biggs and Mary Francis Williams Biggs, who are the son-in-law and daughter of Mr. and Mrs. James L. Williams. The plaintiff in # 15,882-CA is James L. Williams in his capacity as administrator of the estates of his minor children Michelle Marie Williams and Mike Williams.

The defendants in each of the consolidated cases are:

1. Airport Appliance and Floor Covering, Inc., who had contracted with James L. Williams to replace the Formica in the kitchen of the Williams home, and its liability insurer, Aetna Casualty and Surety Company.
2. James C. Roberson and James E. Roberson, who were installing the Formica for Airport, and their liability insurer, MFA Insurance Company.
3. EXXON Corporation who distributed under its label, the contact adhesive Ne-vamar, which the Robersons were allegedly using to install the Formica.
4. Roberts Consolidated Industries, the manufacturer of Nevamar, who supplied the adhesive to EXXON.

The Defendants Airport, Aetna, MFÁ, James C. and James E. Roberson, all third partied the defendants EXXON and Roberts. EXXON and Roberts filed motions for summary judgment which were granted. The plaintiffs and third party plaintiffs appeal the summary judgments which rejected their demands against EXXON and Roberts. We reverse.

The appellants generally allege as their cause of action against EXXON and Roberts that the Nevamar caused the fire because it was not fit for its intended use due to defects created when it was manufactured and further allege that EXXON and Roberts failed to give adequate warning of latent dangers inherent in the use of Neva-mar.

EXXON’s and Robert’s motions for summary judgment allege that pleadings, depositions, interrogatories and answers thereto and other matters on record establish the following facts.

James L. Williams contracted with Airport to replace the Formica in his kitchen. Airport engaged James C. and James E. Roberson to perform the work. The Ro-bersons, who were experienced Formica installers, while doing the work on January 16, 1978, which was a cold rainy day, were using Nevamar (a fact denied by movers but which they asserted as true for the purpose of the summary judgment motion), contrary to warnings on the label on the can. The Robersons were installing the Formica in a residence occupied by Mrs. James L. Williams and her daughter, Michelle. The Robersons failed to cut off the pilot light on a hot water tank and central heating unit resulting in these units continuing to operate while they were performing their work. James E. Roberson smoked while doing the work. The gallon cans of Nevamar containing the adhesive being used to install the Formica had the following label on them:

EXXON and Roberts contend that on these established facts they were each entitled to a summary judgment dismissing all principal and third party demands against them.

The depositions in the record establish the facts alleged in the motions for summary judgment with the exception that they do not establish that James E. Roberson was smoking at the time the fire occurred which seems to be what the motions for summary judgment at least attempt to infer.

There is testimony in the depositions relied upon by the movers to the effect that the heating unit was located in a hall approximately 30 feet from the area in the kitchen where Formica was being installed. There is testimony that the hot water tank was located in a store room on the carport about 13 feet from the work area in the kitchen and was separated from the work area by a wall and a closed door.

The depositions of the defendants Roberson reflect the following facts.

The Robersons arrived at the Williams home about 9:00 a.m. on the day of the fire. The Robersons were aware that the Neva-mar, which they brought to the Williams kitchen to use to apply the Formica, was a very inflammable material and had read in the past at least part of the warnings contained on the labels on the cans. Before they started to work James C. Roberson extinguished the pilot lights on the kitchen cook stove located in the work area and opened a kitchen window and carport door to provide ventilation. They removed all the old Formica from the cabinet top and back of the walls. Each of the Robersons had a can of Nevamar. They each had a paint brush with which they thoroughly applied the adhesive to the surface upon which they were going to apply the Formica and to the back of the Formica. After this was done the adhesive was permitted to dry for a short period of time and then the backside of the Formica was put in place upon the surface. On occasions they used the top of the stove as a work bench upon which they placed the Formica while they applied the adhesive to it. The Rober-sons completed the installation of probably more than half of the new Formica before they went to lunch. During their absence a plumber installed a kitchen sink which had earlier been removed from a cabinet to facilitate the installation of the Formica. Mrs. Williams and her daughter Michelle, who were at home while the work was being performed, went out to lunch after the Robersons left and after the plumber had completed his work, and returned before the Robersons returned from lunch.

The Robersons returned from lunch about 1:30 p.m. and continued with the installation of the Formica. James E. Roberson was installing a piece of Formica on the wall adjacent to the stove when the fire started. He had applied the adhesive to the wall and to the back of the Formica which was laying on top of the stove. As he picked up the Formica from the stove preparatory to placing it on the wall flames rolled from the underside of the Formica (which would have been the finished side on the Formica upon which no adhesive had been placed) and caught the adhesive on the other side on fire. James E. Roberson then started toward the carport door with the burning sheet of Formica planning to get it out of the house. As he turned toward the door he accidentally turned the gallon can of Nevamar over which was sitting on the cabinet near where he had been applying it to the wall and the surface of the Formica. The spilled Nevamar and fumes from it quickly ignited from contact with the burning sheet of Formica in James E. Roberson’s hand. Even though there was an attempt to put the fire out with a blanket and some curtains the flames were immediately out of control and burned the Williams home beyond repair and destroyed most of the contents.

There is no statement in any of the material relied upon by movers EXXON and Roberts that the pilot lights extinguished on the kitchen stove by James C. Roberson were relit during the lunch hour or at any other time between their being extinguished and the occurrence of the fire.

There is no evidence in the material relied upon by EXXON and Roberts that the occupancy of the dwelling by Mrs. Williams and her daughter Michelle while the Neva-mar was being used in any way contributed to the fire. There is no indication in any of the mover’s relied upon material that the fire originated from the hall located heating unit or the store room located hot water tank. The only statement about the source of the fire which differed from the description set forth above taken from the depositions of James E. and James C. Roberson was found in the deposition of Mrs. James L. Williams. She stated that the fire commenced from a spark which flew from the Nevamar can as it struck the counter top when it was turned over by James E. Roberson.

The trial judge gave as his reasons for sustaining the motions for summary judgments that the warnings contained on the Nevamar label were adequate and had been violated by other parties in this case. He stated that EXXON and Roberts had fulfilled their duty to warn and the fire damage was not caused by any breach of an obligation owed by EXXON or Roberts but by neglect of other persons.

The issue is did EXXON and Roberts establish that there is no genuine issue of fact that the product Nevamar allegedly used by the Robersons contained no defect of which the Robersons were unaware and which caused the fire and which EXXON and Roberts failed to warn against.

“A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition or manufacture of the article, if the injury might have been reasonably anticipated.” Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971).

A manufacturer has a duty to give adequate warning of unreasonable danger involved in the normal use of its product where it knows or should have known of that danger and a product sold without such warning is defective. Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978).

Normal use includes intended use and foreseeable use. Cobb v. Insured Lloyds, 387 So.2d 13 (La.App. 3d Cir.1980); Benoit v. Ryan Chevrolet, 428 So.2d 489 (La.App. 2d Cir.1982). See also LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Cir.1980).

There is no duty to warn the user of a product of dangers of which he either knows or should have known. Potmesil v. E.I. DuPont deNemours Co., Inc., 408 So.2d 315 (La.App. 3d Cir.1981).

The responsibility of a wholesaler who holds a product out to the public as its own is the same as that of the manufacturer. Chappuis v. Sears Roebuck & Co., supra.

EXXON and Roberts do not contend that they have established the cause of the fire.

The appellants assign as error that the failure to establish the cause of the fire leaves a genuine issue of fact that must be resolved at trial. Appellants argue that until this fact is established there can be no determination that Nevamar did not contain a defect which created danger of fire when Nevamar was used in a normal manner and of which the Robersons were unaware and of which Nevamar’s label failed to warn against.

C.C.P. Article 966 provides that a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.

Only when reasonable minds must inevitably concur, as a matter of law, on the facts before the court is a summary judgment warranted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Clement v. Taylor, 382 So.2d 231 (La.App.3d Cir.1980); Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980).

EXXON and Roberts did establish in support of their motion that the Rober-sons used Nevamar in violation of three of the warnings contained upon the Nevamar label in that they used the product in an occupied residence, without extinguishing the pilot light on the heating unit and without extinguishing the pilot light on the hot water tank. EXXON and Roberts failed to establish that these violations of their label warning caused the fire to commence on the recently saturated Formica sheet as James E. Roberson picked it up to install on the wall. The cause of this fire could be established at trial to have been due to a defect in Nevamar of which the Robersons were unaware and of which EXXON and Roberts failed to warn against. EXXON and Roberts have failed to establish that there is no genuine issue of fact as to whether or not there is a defect in Neva-mar which while in normal use caused the fire and of which they failed to warn.

The summary judgment in each of these consolidated cases in favor of EXXON and Roberts are REVERSED AND SET ASIDE and the cases are remanded for further proceedings in accordance with law.

All costs of this appeal are assessed against EXXON and Roberts.


author: CUTRER, Judge.

text:
    Judy B. HARDEE, et ux., Plaintiffs-Appellants, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 83-359.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Thomas, Dunahoe & Gregory, A.J. Gregory, Natchitoches for plaintiffs-appellants.
    Brittain & Williams, Joe Payne Williams, Watson, Murchison, Crews, Arthur & Cor-kern, William P. Crews, Jr., Natchitoches, J.Q. Davis of Bethard & Davis, Coushatta, Whitehead & McCoy, Kenneth D. McCoy, Natchitoches, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal emanates from a suit for damages arising out of an automobile accident. The plaintiff, Judy Hardee, while executing a left turn from a parking lot, was struck by Merry Smith as Ms. Smith passed a South Central Bell Telephone Company (Bell) truck driven by an employee, P.A. Gates. Judy Hardee, and her husband, Kelly, sued Ms. Smith and her insurer, St. Paul Fire & Marine Insurance Company (St. Paul had maximum coverage of $10,000.00), and their own “under insurer,” Economy Fire & Casualty Company (Economy). St. Paul and Smith filed a third party action against Bell and its employee, Gates; Economy made Smith, Bell and Gates third party defendants. A jury found causal negligence against the following parties in the following percentages: Plaintiff, Judy Hardee, 40%; defendant, Merry Smith-20%; and third party defendant, Gates-40%. The jury found that Mrs. Hardee was not entitled to any award for general damages. They awarded Kelly Hardee $1,200.00 special damages, which consisted of the loss of the wife’s wages, $400.00 plus $800.00 medical expenses.

The trial court rendered judgment dismissing Judy Hardee’s demands against Ms. Smith, St. Paul and Economy. Judgment was rendered against Ms. Smith and St. Paul in favor of Kelly Hardee for the sum of $1,200.00. Kelly Hardee’s demand against his underinsurer, Economy, was dismissed.

All third party demands filed by Ms. Smith, St. Paul and/or Economy were dismissed: All parties have appealed or answered the appeal. We reverse in part and affirm in part.

The “comparative negligence” method of computing damages is the appropriate standard in this case and the various appeals and answers filed in this court raise many and interesting questions concerning this new law. However, in light of our finding that the jury was clearly wrong in its determination that Ms. Smith was 20% negligent in the operation of her vehicle, we do not reach any of the comparative negligence issues so ably presented by counsel.

We are aware of the very strict standard of review under which we must conduct our consideration of the record before us. The decision of the factfinder is not lightly set aside. However, in this case, on the record before us, we conclude that the jury was clearly wrong when it determined that defendant, Ms. Smith, was negligent.

FACTS

While there is some conflict in the testimony, we have experienced little difficulty in making our findings of fact.

This accident occurred on October 20, 1981, at approximately 12:45 P.M., on College Avenue (Louisiana Highway 6) in Natchitoches, Louisiana. This avenue runs east and west along the north boundary of the campus of Northwestern State University. College Avenue is a wide thoroughfare which serves traffic going into the University and as part of Louisiana Highway 6 which extends westward from Natchitoches to Texas.

This accident occurred approximately in the middle of the block between Caspari Street, which intersects the avenue one-half block to the west and Boyd Street which is one-half block east of the accident scene. College Avenue is 33 feet wide at the scene of the accident.

In the area of the accident the avenue contains a double yellow line. This line is not in the center of the avenue, rather it is situated to the south of the center of the avenue. The travel portion south of the double yellow line is 12 feet wide accommodating one lane of traffic proceeding east. The area of the avenue north of the double yellow line is 21 feet wide which will accommodate two lanes of traffic proceeding west.

The westbound lane does not contain any delineation to indicate two lanes of travel at the exact scene of the accident but is so delineated at a point beginning 97 feet west of the scene of the accident, near the intersection of Caspari Street and College Avenue. At this intersection, the innermost westbound lane is marked for left turn only. This lane serves those wishing to turn left into the campus. This intersection is controlled by a traffic signal which contains a special left-turn light.

Immediately prior to the accident, Judy Hardee had been attending to business at a bank located on the north side of College Avenue. As she left the bank parking lot she drove to an exit in order to enter College Avenue. It was her intention to proceed onto College Avenue and make a left turn to the east for the purpose of getting back to her work. Mrs. Hardee stopped at the exit as traffic was heavy on College Avenue at the time. After waiting a while, the Bell truck (driven by Gates) approached the exit. Gates, noticing Mrs. Hardee waiting in the exit, stopped his truck and, thinking she was going to turn west, waved to Mrs. Hardee to proceed into the avenue. Gates stated that he was surprised when he saw that she was going to cross the avenue and make a left turn into the eastbound lane.

At this time, Ms. Smith was approaching, traveling west on College Avenue, with the intention of turning into the campus at the intersection of Caspari Street. She was going back to her employment on the University campus.

As the Bell truck was stopping at the exit, with cars behind, Ms. Smith was approaching these stopping vehicles. These vehicles stopped near the curb. Ms. Smith, with the intent to turn left at the left-turn signal approximately 127 feet away, switched to the left portion of the westbound lane to pass the stopped vehicles and enter the left-turn lane immediately ahead. She was traveling approximately 15 miles per hour as she proceeded.

Mrs. Hardee, at that time, was crossing the westbound lane intending to make a left turn. She was driving slowly as her view to the east was obstructed by the Bell truck and cars stopped behind it. She continued across the westbound lane driving directly in front of Ms. Smith who was proceeding in the inner lane, approaching the left-turn light immediately ahead. As Mrs. Hardee passed the front of the Bell vehicle, she was struck by Ms. Smith. Ms. Smith had no way of knowing that a vehicle may come into her lane from in front of the Bell vehicle.

Both of these drivers were well acquainted with College Avenue and the fact that the width of the westbound lane was wide enough to accommodate two lanes of traffic. Both were well acquainted with the fact that immediately west of the scene of the accident the inner lane was designated and used as a left-turn lane.

College Avenue forms a part of Louisiana Highway 6 and the state has the responsibility of traffic controls in the area of the accident. Mr. Morton, a traffic engineer for the Louisiana State Department of Transportation, testified that the westbound lane in the immediate area of the accident was not marked with a broken white line to designate two lanes of travel. He stated, however, that if vehicles were stopped near the curb, a westbound vehicle using the inside lane could pass the stopped vehicles without violating any traffic laws or regulations.

With these facts in mind, we shall examine the law in order to determine whether Ms. Smith was at fault.

LSA-R.S. 32:124 provides:

“The driver of a vehicle about to enter or cross a highway from a ..., driveway, ..., shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard. ”

In interpreting this statute, our courts have repeatedly held a driver entering a highway from a private driveway has a primary or high duty to avoid a collision. This duty becomes more onerous as the hazards increase and requires a motorist to use every reasonable means available to ascertain his entry onto the highway may be made in safety. West v. Ryder Truck Lines, Inc., 218 So.2d 106 (La.App. 3rd Cir.1969), writ den., 222 So.2d 882 (La.1969). The fact that a driver may stop to allow such person to enter the highway does not lessen the onerous duty imposed upon the entering driver.

As we apply this law to the facts of this case we find that Ms. Smith was free of negligence. She violated no law or rules of the highway in proceeding into the inner lane of the avenue at a slow speed for the purpose of passing the stopped vehicles and preparing for a left turn at the intersection less than 50 yards away. Mrs. Hardee’s vehicle suddenly emerged from in front of the stopped line of traffic into the path of Ms. Smith’s car, creating a situation of peril from which Ms. Smith could not extricate herself, nor did she have a reasonable opportunity to take the necessary evasive action to avoid the collision.

Mrs. Hardee failed to perform the onerous duty imposed upon a driver entering a highly traveled highway from a private driveway. She failed to use “every means available to ascertain” that her entry into the highway could be made with safety.

The evidence does not support a finding that Ms. Smith was guilty of any negligence contributing to the occurrence of the accident. The jury was clearly wrong in finding Ms. Smith 20% negligent. Since Gates and Bell are not made defendants by plaintiffs but are only third party defendants, it is not necessary that we discuss their negligence.

Having concluded that Ms. Smith was free of negligence, that portion of the judgment rendered in favor of Kelly Hardee and against Ms. Smith and St. Paul in the amount of $1,200.00 shall be reversed and dismissed.

Also, the dismissal of Kelly Hardee’s demand against his underinsurer, Economy, shall be affirmed.

Those portions of the trial court judgment dismissing Judy Hardee’s demands against Ms. Smith, St. Paul and Economy shall be affirmed. The dismissal of all third party demands filed by Ms. Smith, St. Paul and/or Economy shall be affirmed.

For these reasons, that portion of the trial court judgment rendered in favor of Kelly Hardee and against Ms. Smith and St. Paul is reversed and dismissed. In all other respects the trial court judgment is affirmed.

The costs of court both at the trial level and on appeal shall be paid by the plaintiffs, Kelly and Judy Hardee.

REVERSED IN PART; AFFIRMED IN PART.

      . To assist the reader a schematic diagram of the accident site is included as an appendix to this opinion.

      . The judgment casting the full amount of the jury award of $1,200.00 against Ms. Smith and St. Paul was erroneous in view of the percentages of negligence allocated by the jury. Due to the conclusions reached by us, however, it is unnecessary that we pursue this question.


author: FORET, Judge.

text:
    James A. JEWELL, Plaintiff-Appellant, v. Ricky E. THOMPSON, et al., Defendants-Appellees.
    No. 83-364.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writs Denied March 16, 1984.
    Camp, Carmouche, Barsh, Hunter, Gray & Hoffman, David R. Frohn and Edward Carmouche, Lake Charles, for plaintiff-appellant.
    Hall, Lestage & Landreneau, H.O. Les-tage, III, DeRidder, for intervenor-appel-lant-appellee.
    Neblett, Beard & Arsenault, Richard W. Beard, Lake Charles, Patsy Jo McDowell, Baton Rouge, for intervenor-appellee-appel-lant.
    Jones, Patín, Tete, Nolan & Hanchey, Bret Barham, Lake Charles, for defendants-appellees.
    Before FORET, YELVERTON and KNOLL, JJ.
   FORET, Judge.

James A. Jewell (plaintiff) brought this products liability action to recover damages for personal injuries he sustained when the fuel tank on a truck exploded while he was filling it. The sole remaining defendant is CONOCO, Inc. (CONOCO).

After trial on the merits, the trial court rendered judgment in favor of CONOCO, dismissing plaintiff’s demands against it.

Plaintiff appeals and raises the following issues:

(1) Whether the trial court placed the correct burden of proof on plaintiff, who attempted to prove his case by circumstantial evidence, and
(2) If not, and if plaintiff is entitled to recover from CONOCO, what is the correct amount of damages due him.

FACTS

On October 31, 1978, plaintiff sustained severe burns to the upper half of his body. On that date, he was employed as a truck driver by Ricky Thompson (Thompson). Lonnie Blackmon, Jr. (Blackmon) was a contractor for Boise Southern Company, for whom he hauled purchased wood chips. Thompson was one of Blackmon’s sub-contractors. Under an agreement between Thompson and Blackmon, Thompson’s drivers were allowed to fill their trucks with diesel fuel from a 4800-gallon storage tank located at Blackmon’s place of business in DeRidder.

On the day of the accident, plaintiff had stopped at Blackmon’s around dusk to fill his truck with diesel. He had filled the right tank, and was filling the left when the accident occurred. The trial court described the accident as follows:

“As the task neared completion an invisible but volatile vapor cloud collected around Jewell. In a nightmarish sequence, the vapor ignited and Jewell became a human torch, suffering such burn injuries over the upper portion of his body that the verbal description becomes grotesque. Something of the extent of the horror can be conveyed by noting that his nose was burnt off as well as most of his ears and even the enamel on his teeth.”

As a result of the accident, plaintiff filed suit against numerous defendants, alleging various acts of negligence on the part of each. In turn, some of these defendants filed third party demands against each other. Georgia Casualty and Surety Company, Blackmon’s workmen’s compensation insurer, intervened in these proceedings, seeking to recover the amount of workmen’s compensation benefits it had paid plaintiff. Various other parties also intervened in these proceedings, seeking to recover from any judgment that might be awarded in plaintiff’s favor.

Prior to trial on the merits, plaintiff dismissed his action against certain defendants without prejudice. Certain other defendants were released by plaintiff after he entered into settlement agreements with them. CONOCO was the only remaining defendant at the time of trial.

This case was first tried before a jury which was unable to reach a verdict. Consequently, the trial court declared a mistrial. Upon the joint motion of plaintiff, CONOCO, and Georgia Casualty and Surety Company, the case was submitted to the trial court for judgment based upon the existing record. The trial judge who had presided over the jury trial of this matter then recused himself, and the Louisiana Supreme Court assigned the Honorable H. Ward Fontenot as a judge pro tempore of the Thirty-Sixth Judicial District Court, Parish of Beauregard, for the purpose of disposing of this matter. The case was then submitted to Judge Fontenot who rendered judgment, dismissing plaintiff’s demands against CONOCO. Judge Fontenot further rendered judgment, dismissing the petitions of intervention. Plaintiff and in-tervenors appeal from that judgment.

PLAINTIFF’S BURDEN OF PROOF

Plaintiff contends that the trial court erred in applying the wrong burden of proof to his case. He notes that he had to rely solely on circumstantial evidence in attempting to prove that the diesel fuel had been contaminated with leaded gasoline before it left the CONOCO refinery. He points to the following language used by the trial court in its written reasons for judgment and argues that this shows that the court applied the wrong burden of proof in deciding this case:

“Having concluded the existence of contaminated fuel as explained in preceding paragraphs, the next inquiry must relate to the source of that contamination. To sustain his burden, plaintiff must prove that, more likely than not, the contamination occurred at the Conoco refinery before the fuel was pumped by Clavier into the Distributor’s truck.
“Plaintiff’s burden is made difficult because no direct evidence exists of contamination at the refinery. In the language so frequently used relating to circumstantial evidence, plaintiff must prove his case by excluding equally plausible explanations.” (Emphasis ours.)

It is plaintiff’s position that the above emphasized language is an incorrect statement of the law regarding the burden of proof placed on a party who attempts to prove his case through the use of circumstantial evidence.

In a case somewhat similar to this, Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971), stated that:

“In this civil case, the plaintiffs’ burden is to prove causation by a preponderance of the evidence. This burden may be met either by direct or, as in this case, by circumstantial evidence. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (1963).
As we stated in the latter decision, 153 So.2d 397: “Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.” ” (page 757)

We do not believe that the inaccurate paraphrasing of the law regarding proof of causation by circumstantial evidence found in the trial court’s written reasons for judgment necessarily means that it placed the wrong burden of proof on plaintiff. However, we will review the evidence to make a determination as to whether plaintiff met his burden of proof.

With respect to the origin of the diesel fuel in question, the trial court made the following finding of fact with which we agree:

“Jewell was a truckdriver working for Ricky E. Thompson, and had been hauling pulpwood for the Blackmon Trucking-Company (“Blackmon”). Under the arrangement between Blackmon and truckers like Thompson, fuel was made available at the Blackmon yard from a 4,800 gallon, above-ground tank. The fuel was not available to the public and was not involved in any sales transactions. It was from this tank that Jewell was pumping at the time of the accident.
“Blackmon had purchased the fuel from Smith Oil Company (“Smith”) which operates a wholesale petroleum product outlet commonly referred to as a bulk plant. The product in the Blackmon tank had traveled from Smith’s bulk plant.
“Smith usually received his diesel product from the Conoco refinery by way of trucks belonging to the Distributor’s Oil Company (“Distributor’s”).
“Distributor’s was the Sinclair Oil Company dealer but through an arrangement between Sinclair and Conoco, the product which Distributor’s marketed as Sinclair was refined by Conoco.
“The Conoco refinery from whence Distributor’s had received the fuel destined for Smith had a key stop truck terminal. This is an automated facility where customer trucks may pick up the desired product 24 hours a day without the need for Conoco personnel to be present. In the instant case, one of two brothers named Clavier, drivers for Distributor’s, had picked up the fuel from the refinery and transported it to Smith’s holding tank.
“While some question about the origin of the fuel is raised, it was not seriously pursued. The route of the fuel in Black-mon’s tank on the day of the accident can easily be traced back to this Conoco refinery.”

The trial court further found that the diesel fuel contained in Blackmon’s tank on the day of the accident was contaminated with leaded gasoline, and we agree. Thus, plaintiff had to prove that, more likely than not, the contamination occurred at the CO-NOCO refinery.

March Oliver was employed as Chief Refinery Chemist by CONOCO at the refinery where the diesel fuel in question had been produced. He supervised and directed the work on the refinery’s laboratory which included the testing of samples taken to guarantee the quality of products made there. He stated that the final testing point for diesel at the refinery was when it was placed in the bulk loading storage tanks. ■ No diesel was allowed to leave these tanks until it met all of the pertinent specifications. He identified certain documents presented to him as being test report sheets containing information on tests run on samples taken from these tanks. Specifically, these documents contain the results from tests run to determine the flash point of the diesel. The lowest flash point found for diesel in the bulk loading storage tanks during the month and a-half preceding the accident was 154°F, which was well above the standard set by the American Society for Testing Materials (see footnote 1). In contrast, the results of the tests run on samples taken from Blackmon’s storage tank and plaintiffs truck’s tank shortly after the accident, showed the flash points of the fuel therein to have been 90°F and 86°F, respectively.

Dr. Gerald D. Whitehouse was accepted by the trial court as an expert in the field of mechanical engineering. He identified a piping diagram of the truck-loading facility at the CONOCO refinery as being one he had examined prior to trial. He then went on to explain the meaning of the symbols, etc., found on the diagram. Dr. White-house identified two different areas where diesel could become contaminated with gasoline, etc., between the bulk loading storage tanks and the outlets used to place the various fuels in tank trucks. One of these areas was referred to as the “additive slab”, where different additives could be blended with specific fuel before they were loaded into tank trucks. The other was a “prover” tank used to measure the accuracy of meters found on the loading dock.

Dr. Whitehouse acknowledged that the additive slab would not be activated in normal operations by someone using the loading dock to load diesel. The CONOCO loading facility is of the type known as a key stop operation, i.e., the facility could be operated twenty-four hours a day, with or without CONOCO personnel being present, by someone having the right set of keys to enter the facility and activate the various loading devices. In order to activate the additive slab, one needed special keys. However, the evidence shows that the distributor who picked up the diesel from CO-NOCO (which eventually was placed in Blackmon’s tank and was alleged to have been contaminated at the CONOCO refinery) did not have any keys which could be used to activate the additive slab. Dr. Whitehouse also acknowledged that the prover tank would not be used in the normal day-to-day loading activities of the CO-NOCO facility.

Robert Palmer was the Terminal Manager in charge of CONOCO’s loading facility. He explained in detail the nature of a key stop operation. He was unable to recall any complaints being received from CONO-CO’s customers regarding diesel fuel obtained from the facility that did not meet industry specifications (including the minimum flash point). Palmer also testified that a person needed a specific key before he could activate the additive slab, and that the distributor who obtained the diesel in question did not have such a key. Palmer also explained in detail the uses to which the prover tank was put. He stated that the prover tank was scheduled to be used once every quarter, but that it would be used more often if there was a problem with a particular meter. The prover tank had not been used during the two months preceding the date of the accident.

Shirley Smith testified that he was the owner of Smith Oil Company, which was affiliated with Distributor’s Oil Company. Together, they operated a bulk plant which sold diesel, gasoline, etc. Blackmon was one of their customers. Smith stated that diesel fuel was brought to the bulk plant in either a Distributor’s Oil Company truck or by common carrier. It was then transferred from these trucks to a storage tank located at the bulk plant. There were other storage tanks containing gasoline, motor oil, etc., located there. In turn, Smith used two bobtail trucks to deliver fuel to his customers. Each of these trucks contained five different compartments into which fuel could be loaded. Smith testified that he was bringing diesel and loading it into Blackmon’s tank on an almost daily basis. He further testified that he did carry split loads in his trucks (some compartments would be filled with gasoline and some with diesel), and that he relied on a visual inspection of the compartments, or the sound of the pump on the truck, to make sure that the compartments were emptied of whatever fuel they contained. Finally, we note that there was testimony indicating that the tank at Blackmon’s was loaded through a hatch which was always unlocked, and that the tank was placed in an unfenced portion of Blackmon’s premises.

It is our opinion that, taken as a whole, the circumstantial evidence introduced by plaintiff failed to exclude other reasonable hypotheses regarding the point at which the diesel in question became contaminated with gasoline with a fair amount of certainty. Stated another way, plaintiff failed to prove that, more likely than not, the diesel in question was contaminated before it left the CONOCO refinery. The extensive testing done there, together with the protective devices employed, clearly supports such a finding.

OTHER ISSUES

Because of our decision herein, there is no need to reach a decision on the other issues raised by plaintiff.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . Oliver explained that the flash point was the temperature at which a combustible mixture formed in a container partially filled with fuel when a flame was applied to the container under the conditions of the test. He further explained that an organization known as the American Society for Testing Materials had been formed for the purpose of checking standards and test methods to be used for testing products such as diesel. The ASTM had set the minimum required flash point for diesel at 125°F.


author: YELVERTON, Judge.

text:
    Eric J. MARTIN, Plaintiff-Appellee, v. Sue B. JOHNSON, et al., Defendant-Appellant.
    No. 83-1099.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 9, 1984.
    Robert Shelton and Philip Kobetz, Lafayette, for plaintiff-appellee.

      Roy, Forrest & Lopresto, Albert Forrest, New Iberia, W. Glenn Soileau, Breaux Bridge, for defendant-appellant.
    Before CUTRER, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

MOTION TO DISMISS

Plaintiff-appellee, Eric J. Martin, moves to dismiss the appeal of the defendant-appellant, State Farm Mutual Automobile Insurance Co., contending that the trial court ruling is a non-appealable interlocutory judgment. We dismiss the appeal.

Martin filed suit against Sue B. Johnson, Allstate Insurance Company, and State Farm for damages resulting from an automobile accident. State Farm is Martin’s uninsured motorist carrier. Martin subsequently executed a release and judgment of dismissal as to some or all of the parties to this suit. State Farm filed peremptory exceptions of No Right of Action and Res judicata which exceptions were overruled by the trial court. From this judgment, State Farm has taken this appeal.

An appeal may be taken from a final judgment or an interlocutory judgment which may cause irreparable injury. LSA-C.C.P. Art. 2083. A final judgment is one that determines the merits in whole or in part. A judgment that only determines preliminary matters in the course of an action is an interlocutory judgment. LSA-C.C.P. 1841.

A judgment overruling peremptory exceptions of no cause of action and res judicata is an interlocutory rather than a final judgment and thus not appealable absent a showing of irreparable harm. Wallace v. Pan American Fire & Casualty Company, 386 So.2d 158 (La.App. 3rd Cir.1980).

State Farm contends that it will suffer irreparable harm because it will be compelled to absorb the costs incident to a hearing on the merits. The necessity for increased expense and labor resulting from trial on the merits does not constitute irreparable harm. Wallace v. Pan American Fire & Casualty Company, supra.

The standard for determining whether an interlocutory judgment may cause irreparable injury is whether any error in the judgment may be corrected as a practical matter on an appeal following the determination of the merits. Sylvester v. St. Landry Parish Police Jury, 401 So.2d 689 (La.App. 3rd Cir.1981). There is no showing of irreparable injury in this case.

For the above and foregoing reasons, the appeal is dismissed at defendant-appellant’s, State Farm Mutual Automobile Insurance Co., cost.

APPEAL DISMISSED.


author: GUIDRY, Judge.

text:
    Toxie GIVENS, Plaintiff-Appellee, v. FIFTH DISTRICT LEVEE BOARD, Defendant-Appellant.
    No. 82-750.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 23, 1984.

      Calvin C. Adams, Jr., Tallulah, Michael 0. Hess, Baton Rouge, for defendant-appellant.
    Michael E. Kramer, Winnsboro, for plaintiff-appellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   GUIDRY, Judge.

The plaintiff, Toxie Givens, brought this suit seeking compensation for property appropriated by the defendant, the Board of Commissioners for the Fifth Louisiana Levee District (hereafter referred to as the Levee Board). The trial court awarded plaintiff $67,800.00 as the fair market value of the property taken together with legal interest thereon. The Levee Board appeals.

The Levee Board asserts that the trial court erred (1) in overruling the defendant’s exception of prescription; and, (2) in overruling the defendant’s exception of no cause of action.

FACTS

The Levee Board passed a resolution appropriating the plaintiffs property on August 15, 1973. On September 10, 1973, the contract for the levee enlargement work was awarded. On September 23, 1973, the contractor began work under the contract. The work under the contract was completed on December 13, 1976. The plaintiff filed this suit for compensation on July 7, 1978. The plaintiffs petition prayed for compensation in an amount equal to the fair market value of the property appropriated for levee purposes.

EXCEPTION OF PRESCRIPTION

The relevant prescriptive period is found in LSA-R.S. 9:5626, which provides:

“When lands are appropriated for levees or levee drainage purposes all claims and actions for payment under Article XVI, Section 6 of the Constitution of 1921 for lands and improvements thereon actually used or destroyed for levees or levee drainage purposes shall prescribe within two years from the date on which the property was actually occupied and used or destroyed for construction of levees or levee drainage works, or, in the case of lands and improvements heretofore so occupied and used or destroyed, such prescription shall accrue two years from November 17, 1958. This prescription shall run against interdicts, married women, absentees, minors, and all others now excepted by law.” (Emphasis supplied).

Article XVI, Section 6 of the Constitution of 1921 provided that the amount of compensation to be paid for land used or destroyed for levees or levee drainage purposes was not to exceed the assessed value of that land for the preceding year. When the Constitution of 1974 became effective, Article XVI, Section 6 of the 1921 Constitution was continued in force as a statute until such time as the legislature would enact a new formula for determining the amount of compensation to be paid to owners of land appropriated for levees or levee drainage purposes. See Article 14, Section 32 of the Constitution of 1974.

The legislature changed the method of determining compensation to be paid for lands used or destroyed for levees or levee drainage purposes by passing Act No. 314 of 1978, amending LSA-R.S. 38:281. This act became effective on July 10, 1978. By the terms of Article 14, Section 32 of the Constitution of 1974, supra, Article XVI, Section 6 of the Constitution of 1921 continued in force as a statute until July 10,1978, the effective date of the amending act. The plaintiff filed this suit on July 7, 1978, three days prior to the effective date of the amending act. Therefore, the plaintiff’s suit is a claim for payment under Article XVI, Section 6 of the Constitution of 1921, and the applicable prescriptive period is that provided by LSA-R.S. 9:5626, supra.

The two year prescriptive period provided for by R.S. 9:5626 commences “from the date on which the property was actually occupied and used or destroyed.” The Levee Board argues that the plaintiffs property was “taken” on August 15, 1973, the date the Levee Board passed the resolution appropriating the property, and that prescription commenced on that date. This interpretation is contrary to the clear terms of the statute. None of the plaintiff’s property was actually occupied and used or destroyed by the mere passage of the resolution of appropriation. Our interpretation is that prescription commences on a claim for compensation on the date operations are completed on the property of that claimant. Only upon completion of operations on the claimant’s property is the extent of the use and/or destruction ascertainable. We feel that “the date on which the property was actually occupied and used or destroyed” connotes the completion of such occupation, use and destruction.

This critical date, the date on which operations were completed on the property of the plaintiff, is not made clear by the record. The trial judge ruled that prescription commenced on December 13, 1976, the date on which the work authorized by the Levee Board was complete. He overruled the exception because the plaintiffs filed suit on July 7, 1978, less than two years from December 13, 1976.

The operations on the land owned by the plaintiff may have been completed prior to the completion of all work under the contract. If such was the ease, the defendant Levee Board may have had a viable plea of prescription. However, the Levee Board failed to show when the operations on the plaintiff’s land were complete. Under these circumstances, they have not carried the burden of proving that the plaintiff’s claim has prescribed. Langlinais v. Guillotte, 407 So.2d 1215 (La.1981). We find no error in the trial court’s overruling of the exception of prescription.

EXCEPTION OF NO CAUSE OF ACTION

The Levee Board’s exception of no cause of action is based on the plaintiff’s failure to allege the assessed value of the property appropriated by the Levee Board. When the plaintiff’s suit was filed on July 7, 1978, Article XVI, Section 6 of the Constitution of 1921 was still in effect as a statute. It provided, in pertinent part:

“Lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes ... shall be paid for at a price not to exceed the assessed value of the previous year...”

Our courts have held that a landowner, in order to state a cause of action under this provision, must affirmatively allege that the property was assessed for taxes in the preceding year and allege the amount of the assessment. Lacour v. Red River, Atchafalaya and Bayou Boeuf Levee District, 158 La. 737, 104 So. 636 (La.1925); Dickson v. Board of Commissioners of Caddo Levee District, 210 La. 121, 26 So.2d 474 (La.1946); Walker v. Natchitoches Levee and Drainage District, 386 So.2d 709 (La.App. 3rd Cir.1980). The plaintiff’s petition in the instant case did not allege that the property was assessed or the amount of the assessment, but rather alleged and prayed for the fair market value of the property appropriated.

Our resolution of the issue presented depends on an interpretation of the 1978 and 1979 amendments to LSA-R.S. 38:281. Act 314 of 1978, effective July 10, 1978, adding subsection B to the statute, creating a new basis for compensation. It provided in pertinent part:

“B. All lands and improvements, Orleans Parish excepted, hereafter actually used, damaged or destroyed for levees or levee drainage purposes shall be paid for fair market value to the full extent of the loss,
The compensation defined herein shall apply to all lands and improvements taken, damaged or destroyed for levee and levee drainage purposes after the effective date of this Act, and to the determination of just compensation in any expropriation or appropriation suit pending on July 10, 1978, involving lands and improvements taken, damaged or destroyed for levee and levee drainage purposes.”

This suit was pending on July 10, 1978. Therefore, the act required that compensation in this suit would be determined according to the fair market value of the property.

LSA-R.S. 38:281 was again amended the following year. Act 676 of 1979 amended subsection B to provide in part:

“The compensation defined herein shall apply to all lands and improvements appropriated, used, or damaged for levees and levee drainage purposes after the effective date of this Act, and to lands appropriated, used, or damaged for levees and levee drainage purposes after July 10, 1978.”

The 1979 act thus removed the provisions of the 1978 act making fair market value the basis for compensation in suits pending on July 10, 1978.

The plaintiff asserts that the 1978 act, providing for retroactive application of fair market value as the basis for compensation, created a vested right in the plaintiff to recover that amount in his suit for compensation, and that the 1979 act could not constitutionally operate to remove that right. The Levee Board maintains that no substantive right vested in the plaintiff upon passage of the 1978 act, and that the plaintiff’s only remedy is for the assessed value of the property pursuant to Article XVI, Section 6 of the Constitution of 1921. The Board argues that since this is the plaintiffs only remedy, the plaintiffs petition fails to disclose a cause of action because it fails to allege that the property was assessed during the preceding year and allege the amount of that assessment.

The Supreme Court addressed this issue in the recent case of Terrebonne v. South Lafourche Tidal Control Levee District, 445 So.2d 1221 (La.1984), stating:

“We therefore hold that Act 314 of 1978 vested in plaintiffs, whose suit was pending on July 10, 1978, the substantive right to compensation measured at the fair market value of their property appropriated by a 1975 resolution of the District. Once vested, plaintiffs’ right to such compensation could not constitutionally be divested by Act 676 of 1979. La. Const. Art. I, § 23 (1974); U.S. Const. Art. I, § 10; Lott v. Haley, 370 So.2d 521 (La.1979).”

Applying these principles to the present case, we find that the 1978 act created a vested right in the plaintiff to seek the fair market value of the property appropriated by the Levee Board. Thus, the trial court was correct in overruling the exception of no cause of action.

The trial court awarded plaintiff the sum of $67,800.00. Neither party questions the amount determined by the trial court to be the fair market value of the property appropriated. Therefore, we will not disturb this finding.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to the defendant-appellant.

AFFIRMED.


author: HALL, Judge.

text:
    Dennis FOLEY, Plaintiff-Appellee, v. Porter G. DOWLING, et al., Defendant-Appellant.
    No. 16343-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 24, 1984.
    Gamble & Sledge by Jack E. Gamble, Jr., and Claude R. Sledge, Mansfield, for defendant-appellant.

      Dennis Foley, in pro. per.
    Before PRICE, HALL, MARVIN, JASPER E. JONES and SEXTON, JJ.
   HALL, Judge.

Plaintiff, Dennis Foley, a resident of the Town of Logansport in DeSoto Parish, brought this action objecting to the candidacy of defendant, Porter G. Dowling, for election to office of alderman of the town. As grounds for the objection to candidacy, plaintiff alleged that defendant does not meet the qualifications for the office he seeks because he lives outside the corporate limits of the town and is not a qualified elector of the municipality as required by LSA-R.S. 33:384 and 385.

In response, defendant conceded that he does not live within the corporate limits of the Town of Logansport and was not a qualified elector thereof at the time he qualified as a candidate. Defendant contended, however, that under the second sentence of LSA-R.S. 18:451, the elector or residence status requirement is to be determined as of the .date the candidate qualifies for office by taking the oath of office and posting bond as provided by LSA-R.S. 42:141, and that the property on which he lives which is adjacent to but outside of the, Town of Logansport will be annexed into the corporate limits of the town before the date the office is to be assumed. Defendant filed into evidence an affidavit of five members of the Board of Alderman declaring that they supported the annexation which was to be voted on at a meeting scheduled for February 20, 1984, three days following the trial of this matter.

After trial, the district court, in excellent reasons for judgment, held that the defendant does not meet the qualifications of the office he seeks. From a judgment disqualifying the defendant as a candidate for the office of alderman and ordering that his name be deleted and stricken from the ballot, the defendant appealed. We affirm the judgment of the district court.

Defendant’s contention that “the time he qualifies for that office” in the second sentence of LSA-R.S. 18:451 means the time of taking the oath of office after election, not the time of qualifying as a candidate for office, was expressly considered and rejected in Montelepre v. Edwards, 359 So.2d 1311 (La.App. 4th Cir.1978), writ denied 359 So.2d 620 (La.1978), and in Cook v. Campbell, 360 So.2d 1193 (La.App. 2d Cir.1978), writ denied 362 So.2d 573 (La.1978). Both cases expressly hold that the term “qualifies” as used in the statute means qualifies as a candidate for office. Consequently, a candidate shall possess the qualifications for the office he seeks at the time he qualifies as a candidate for that office, except as otherwise provided by law. The law does not provide otherwise in regard to the qualifications for the office of alderman or candidacy for that office. In this respect, the instant case is distinguishable from Cook v. Campbell in which the court held that in the case of the five-year law practice qualification requirement for the office of district judge, Louisiana Constitution Art. 5, § 24 provides otherwise in that a judge is required to have been admitted to the practice of law in this state for at least five years “prior to his election.” No such provision at variance with the election code is contained in LSA-R.S. 33:384 and 385 establishing the qualifications for alderman, or in any other statute or constitutional provision to which our attention has been called.

Defendant relies heavily on Montelepre v. Edwards, supra, in which the court, although holding that a candidate must meet the qualifications for the office at the time he qualifies as a candidate, held that if it • can be determined on the date the candidate qualifies as such that he will meet the qualification at the time he assumes office then the person may validly qualify as a candidate. The Montelepre case involved a candidate for municipal court of the City of New Orleans. LSA-R.S. 13:2492(A) provides that a judge of that court shall not be less than 30 years of age. The candidate was 29 years old at the time he qualified and would have become 30 years old before assuming office, if elected. The court held that it could be determined on the date the candidate qualified that he would meet the requirement for assumption of the office on or before the date the office was to be assumed.

The instant case is distinguishable from the Montelepre case because it cannot be determined with any degree of legal or factual certainty, as of the date defendant qualified as a candidate for alderman, that he will be an elector or resident of the municipality at the time he would assume office, if elected. Although it was established that five of the town alderman intended to support an annexation ordinance, this evidence falls far short of establishing with any degree of certainty that the ordinance would, in fact, be validly adopted by the Board of Aldermen and would go into effect, without contest, before the date the newly-elected aldermen of the town would assume their offices. See LSA-R.S. 33:171, et seq.

Accordingly, the defendant does not meet the qualifications of the office which he seeks and the judgment disqualifying him as a candidate is correct and is affirmed.

Affirmed.

      . LSA-R.S. 33:384:
      "The mayor shall be a qualified elector of the municipality, and he must have been a resident of the parish for two years.”
      LSA-R.S. 33:385:
      "The qualifications of the alderman shall be the same as are prescribed for the mayor, and in addition, those elected from wards must be residents of their respective wards

      . LSA-R.S. 18:451:
      "A person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in the election. Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office."


text:
    James Q. WELLBORN, Plaintiff-Appellant, v. Donald E. JONES and The Honorable Wilna N. Mabry, Clerk of Court for Bossier Parish, Defendant-Appellee.
    No. 16338-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 24, 1984.

      Payard & Snell by M.F. “Rick” Fayard, Jr., Bossier City, for plaintiff-appellant.
    Peatross, Greer & Hayter by L. Edwin Greer, Shreveport, for defendant-appellee, Donald E. Jones.
    Wallace & Southerland by Arthur M. Wallace, Jr., Benton, for defendant-appel-lee Wilna N. Mabry Clerk of Court.
    Before PRICE, HALL, JASPER E. JONES and SEXTON, JJ., and McCLEN-DON, J. Pro Tem.
   JASPER E. JONES, Judge.

The plaintiff, James Q. Wellborn, appeals a judgment rejecting his demand that Donald E. Jones, defendant, who had qualified for mayor of Bossier City on February 3, 1984, be disqualified as a candidate for the mayor of Bossier City. The plaintiff contended Jones was not qualified because Jones allegedly had not “actually resided [in Bossier City] two consecutive years immediately preceding the date of the general election” as required by Chapter 4, Section 4.03 of the Bossier City Home Rule Charter.

The trial court held that Jones met the residence requirement of the Home Rule Charter and rejected plaintiff’s demand that he be disqualified. We affirm.

The trial court assigned excellent written reasons for its decision wherein it concisely but in full detail made the following factual determinations which are fully supported by the evidence.

“Donald E. Jones was born and grew up in Bossier City and attended public schools in Bossier City until he. graduated from high school. He then attended Louisiana Tech University and worked summers in the family business corporation, Jones’ Brothers Company, Inc., located in Bossier City, Louisiana. After graduation, he was employed by the company in Bossier City, and at the time he filed for office, he was a vice-president of the company.

From December 1977 to July 1982, defendant lived with his family at 504 Yale Place in Bossier City. In June 1982, he was elected President of the United States Jaycees, and that organization provided a house for him and his family in Tulsa, Oklahoma. In early July defendant went to Tulsa, and his family followed later in the month, taking their personal items and clothing, along with a sofa, television and a chair. They moved their furniture from 504 Yale Place and transported some of it to the home of defendant’s parents at 425 Waller Street in Bossier City. The remainder of the furniture was stored commercially in Bossier City. The home at 504 Yale Place was then leased on a month-to-month lease to two different individuals during' the term of defendant’s presidency.

The defendant and his family occupied the house in Tulsa during the year until late June, 1983, when they returned to Bossier City. Defendant and his family then divided their time between 425 Waller Street and his parent’s camp on Lake Bis-teneau, outside the city limits of Bossier City. During this time, defendant and his wife looked for a house in Bossier City to purchase, and eventually made an offer for a house on July 27, 1983. On July 29, defendant signed a purchase agreement for a home, and the same was closed on September 23, 1983. Mayor Anding died September 11, 1983, causing the vacancy for which defendant is a candidate for office.

During the year while defendant and his family occupied the house in Tulsa, defendant traveled extensively, being away overnight approximately three hundred nights during the year, and on one occasion he and his wife spent approximately one month overseas. During that month, his school-aged son attended school in Bossier City. The remainder of the year, the child attended school in Tulsa. Defendant returned to Bossier City approximately nine or ten times during the year.

In Tulsa, defendant opened a bank savings account and was listed in the city directory and the telephone book. He had no checking account in Tulsa banks, he did not register to vote, and he opened no Tulsa charge accounts.

In Bossier City at 425 Waller Street, the home of his parents, defendant had access to a portion of his parents’ home at all times. The area was two bedrooms, a bath, living room, dining room, and defendant and his family shared a kitchen with his parents. Defendant and his family had separate access and separate keys, and there was even separate air conditioning and heating in the area provided for defendant. He and his family could come and go as they pleased without notice or asking permission of his parents or anyone else. There is no doubt in the mind of the Court that at all times the defendant intended to reside in Bossier City and intended to return to Bossier City as soon as the term of his office was ended.

During the year -of his presidency defendant had many other contacts with Bossier City. He remained vice-president of the family business and was paid the same salary, in addition to his salary paid by the United States Jaycees. He made some business decisions, as shown by some documents signed by him, which were filed in evidence. He retained both savings and checking accounts for himself and his wife, and he retained savings accounts for his children in Bossier City banks. He paid his personal bills from Bossier City checking accounts and used his Bossier City address on charge accounts, driver’s license, income tax returns, and in public appearances for United States Jaycees. He filed Louisiana resident income tax returns and Oklahoma non-resident income tax returns for the period in question during his presidency. Defendant had sufficient personal belongings and clothes at the residence on 425 Waller Street, so that he did not have to bring additional clothing when he came. He and his wife retained local memberships in the Jaycees and Jaycee Jaynes organizations, and November 22, 1982, was proclaimed as Don E. Jones Day in Bossier City. Defendant retained his voter registration and church membership in Bossier City and contributed to his local church during the year. He also did a television commercial in December, 1982, for a local bank urging the viewers to bring their money, to Bossier City banks. He made numerous statements to friends and associates concerning his intention to return to Bossier City.

When he returned to Bossier City in June, 1983, he continued his living arrangements at the home of his parents and spent equal time there and at the camp house of his parents on Lake Bisteneau. All the while, he and his wife were looking for a house, since they had decided to sell their house at 504 Yale Place.”

The appellant contends that Jones, who had been a resident of Bossier City for many years, lost his status as such in June of 1982 when he and his family moved from their owned family home at 504 Yale Place and did not reacquire the status as a resident of Bossier City until Jones bought a new home in Bossier City on September 23, 1983.

A person who is temporarily absent from the place he intends as his place of residence does not lose his status as a resident by virtue of his temporary absence if he maintains a place where he has a right to return at will without making any prior arrangements. Hall v. Godchaux, 149 La. 733, 90 So. 145 (1921).

In order to be an actual bona fide resident of a city a person is not required to remain continuously in that city and his status as a resident of it is not affected by temporary absence required by business or pleasure. State v. Steele, 200 So. 496 (La.App. 2d Cir.1941).

The factors to be considered in determining where a person resides includes his expression of intent to return or select a place to be his residence made at unsuspi-cious times combined with his conduct and activities which corroborate his expressed intent. Caufield v. Cravens, 138 La. 283, 70 So. 226 (1915); State v. Steele, supra; Robinson v. Atkins, 275 So.2d 444 (La.App. 2d Cir.1973).

After Jones moved from his family home at 504 Yale he and his family temporarily occupied a home in Tulsa, Oklahoma from time to time during the period between June 30, 1982 and June 30, 1983. During this period Jones had the exclusive use of two bedrooms, a bath room, a living room ánd dining room in his parent’s home in Bossier City. He also had the right to use the kitchen in his parent’s home. He and his wife had a key to a private entrance to these living facilities and had the right to occupy them without making any prior arrangement. Jones testified that he spent about as much time in Bossier City during this period as he did in Tulsa. He spent most of this year visiting various Jaycee groups throughout the United States and he and his wife spent one month during this period out of the country.

Jones had always expressed the intent to return permanently to Bossier City at the expiration of his one year term as President of the United States Jaycees. Jones’ expressed intent was clearly corroborated by his frequent visits to Bossier City and by actually retaining his Bossier City job, voting registration, business, religious and social connections.

Jones’ use of his father’s camp on Lake Bisteneau from time to time during the summer of 1983 after his return from Tulsa did not change his status as a resident of Bossier City because he continued to use the living quarters provided him in his father’s home in Bossier City.

Jones’ temporary absence from Bossier City did not affect his status as a resident of Bossier City which he had possessed for many years before he qualified as a candidate for mayor. The judgment is AFFIRMED.