author: SHORTESS, Judge.

text:
    Richard WOLLERSON v. DEPARTMENT OF AGRICULTURE.
    No. 82 CA 0590.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 7, 1983.
    Writs Denied Nov. 18,1983.

      C. James Gelpi, Gelpi & Willeford, New Orleans, for appellant.
    Eugene P. Cicardo, Alexandria, for appel-lee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Director of the Dept, of State Civil Service.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

Richard Wollerson was dismissed from his permanent position as Agricultural Inspector I with the Louisiana Department of Agriculture and appealed this termination to the Civil Service Commission. A hearing was conducted before a referee. The Commission concluded that “the inaccuracies as to the times listed on the report would warrant no more than a reprimand” and that “the termination of an employee for having worked only six and one half hours on one day is too severe.” From this decision, the Department of Agriculture (Department) appealed to us and also filed a peremptory exception of prescription, asserting that Wollerson’s appeal to the Commission was untimely in that it was not filed within the 30 days required by Civil Service Rule 13.12. On the Department’s motion, we remanded the case to the Commission to consider the peremptory exception. The Commission then found that the appeal was timely filed.

By letter dated September 23, 1980, and received on September 24, 1980, Wollerson was advised of his termination. As cause for removal, the Department recited a lengthy incident that occurred on September 9,1980, while he was at Hot Wells State Resort. The letter charged him with being at Hot Wells in an intoxicated condition without having taken leave and with falsifying his daily activity report in the following respects: (1) by indicating that he had worked eight hours on September 9, 1980, when he did not and (2) by reporting that he took feed and seed samples from specified businesses at specified times on the same day when he did not. Immediately after receiving this termination letter, Wol-lerson asked if he could discuss the letter with the Commissioner of Agriculture. Wollerson understood that his termination was not effective until after he talked to the Commissioner. The Commissioner decided to allow him to resign. Wollerson was continued on the payroll until October 17, 1980, the effective date of his resignation.

Wollerson received a second letter of termination dated October 1, 1980. Although the Department had decided to allow him to resign, the first termination letter had already been sent to the Commission. Uncertainty as to whether or not the Commission would allow the Department to rescind the first termination letter prompted the second letter. In fact, the Commission denied the Department’s request to accept a resignation in lieu of a termination. The second termination letter specified essentially the same causes for removal as the first letter.

Wollerson’s daily activity work report indicated that he worked eight hours on September 9, 1980, which included seven hours sampling feed and seed and one hour doing office work. His itinerary indicated that he had worked from 8:00 a.m. until 4:30 p.m. on that date. However, Wollerson admitted that his daily activity report was incorrect to the extent that he did not visit the businesses listed at the times that he had listed. A reading of the transcript reveals inconsistencies in his testimony. For example, he first asserts that he worked eight hours on September 9, 1980, and later admits that he probably did not work eight hours.

“Q Are you testifying that you worked eight hours that day?
A Yes, sir.
Q —can you explain to the hearing examiner how you got that you worked eight hours that day—if you quit at 5:30?
A Well, I don’t necessarily say that I worked eight hours that day.
Q So, actually, in truth and in fact, then, you didn’t work eight hours that day, isn’t that so?
A That’s probably right, too.”

When asked why he did not put the truth on his daily work report, he answered,

“A I errored.
Q It was a mistake, right?
A More than that. (Laughter).”

The Department contends that the Commission erred in failing to dismiss the appeal on the grounds that:

I. it was not timely filed, and

II. it held that the actions of Wollerson warranted no more than a reprimand.

I.

Civil Service Rule 13.12 provides that an appeal must be filed within 30 days after the date on which the employee receives written notice of the action that is appealed. The Department argues that September 24, 1980, the date of the receipt of the first termination letter, is the date from which appellate delays began to run; therefore, the appeal postmarked October 28, 1980, was not timely filed.

Although Wollerson received the first termination letter on September 24, 1980, he understood that the termination would not be effective until after he talked to the Commissioner of Agriculture. The Commissioner decided to allow him to resign to escape termination, and Wollerson believed that he would be permitted to resign. When the Department discovered that the first termination letter had already been sent to the Commission, a second termination letter, dated October 1, 1980, was sent due to uncertainty as to whether the Commission would agree. Although Wollerson did receive the second letter, the record does not indicate when he received it. After issuance of the second letter, the Department received a resignation from Wollerson dated October 2, 1980. The resignation was to become effective on October 17, 1980, and Wollerson was continued on the payroll until that date.

On remand, the Commission determined that there was no need to take additional testimony to determine exactly when Wol-lerson received the second letter. He could not have received it after October 28 because a copy of the letter was attached to the notice of appeal. The Commission concluded that:

“[rjegardless of what day between October 1, 1980 and October 28, 1980 Mr. Wollerson received the October 1, 1980 letter, the notice of appeal postmarked October 28, 1980 and filed October 29, 1980 had to have been within thirty calendar days of his receipt of the October 1, 1980 letter.”

We agree. The Department misled Woller-son as to the status of his removal. He believed that the first termination letter was ineffective. He remained on the payroll until October 17, 1980, which was past the effective date of termination of either letter. The appeal was timely filed. Accord Washington v. Confederate Memorial Medical Center, 147 So.2d 923 (La.App. 1st Cir.1962); Dent v. Dept. of Corrections, Etc., 413 So.2d 920 (La.App. 1st Cir.1982).

II.

The decisions of the Civil Service Commission are subject to review on any question of law or fact. La.Const. article 10, section 12. Prior to the use of referees to conduct hearings, the scope of appellate review was essentially the same as in other civil matters. Michel v. Dept. of Pub. Saf. Al. Bev. Con. Bd., 341 So.2d 1161 (La.App. 1st Cir.1976), writ refused, 343 So.2d 1078 (La.1977.) Thus, the manifest error rule as set forth in Canter v. Koehring, 283 So.2d 716 (La.1973) and in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) was applicable.

However, recent jurisprudence has held that the manifest error rule, as set forth in Canter, supra, and Arceneaux, supra, is not applicable when Civil Service Commission proceedings are conducted before a referee or hearing examiner. Recent cases have noted that:

“The great weight accorded conclusions and determinations made by the trier of fact under Canter and Arceneaux is based on the advantage derived from personal observation of the witnesses, their demeanor on the stand, and the manner in which they responded to examination. Here, the Commission enjoyed no such advantage. Under these circumstances the standard of review by an appellate court is not unlike that of judicial review in other administrative matters, that is, whether the conclusion reached by the Commission is arbitrary or capricious or manifestly wrong.” Picton v. Sewerage and Water Bd., 423 So.2d 1284 (La.App. 4th Cir.1982); Marinovic v. New Orleans Police Dept., 422 So.2d 226 (La.App. 4th Cir.1982); Merchant v. Dept. of Finance, 391 So.2d 587 (La.App. 4th Cir.1980); see also McGee v. Sewerage and Water Bd., Etc., 396 So.2d 430 (La.App. 4th Cir.1981).

When hearings were conducted before a hearing examiner, courts have applied a less restrictive standard of review and have made an independent review of the record to determine whether the conclusion of the Commission was arbitrary, capricious, or manifestly wrong. Pieton v. Sewerage and Water Bd., supra. Because a referee was used in the instant case, the less restrictive standard of review as pronounced in the above cited cases will be applied.

Initially, we note that the Commission’s report does not indicate that a due reading and examination of the transcript of the testimony as made up before the referee has taken place. The members of the Commission must read and examine the transcript before arriving at an opinion. Goudeau v. Dept. of Public Safety, Div., Etc., 349 So.2d 887 (La.App. 1st Cir.1977), writ denied, 351 So.2d 165 (La.1977); Wells v. Department of Corrections, Etc., 417 So.2d 377 (La.App. 1st Cir.1982), writ denied, 420 So.2d 983 (La.1982). Furthermore, the referee’s evaluation of the testimony does not appear in the record and is unknown to us. However, because the entire record is before us, we have decided to dispose of the case instead of remanding. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

A person who has gained permanent status in the classified State service may be subject to disciplinary action if the conduct complained of impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Williams v. Department of Public Safety, Etc., 415 So.2d 543 (La.App. 1st Cir.1982). In the instant case, Wollerson admitted that he went to Hot Wells on the day in question; that he was absent from work without leave; that he falsified his work records; and that he was paid for time that he did not work. His own testimony is inconsistent, for he first asserts and then denies that he worked eight hours on the day in question.

Our independent review of the record compels us to differ with the conclusion reached by the Commission that only a reprimand was warranted. We find that the Commission erred in reinstating Wollerson with back pay, because his own admissions of wrongdoing warrant at the very minimum a 30-day suspension without pay. Because the penalty imposed by the Commission does not fit the offense, we feel that a modification of the penalty is necessary. Cf. Branigham v. Department of Police, 362 So.2d 1221 (La.App. 4th Cir.1978), writ denied, 365 So.2d 247 (La.1978).

Accordingly, it is ordered, adjudged and decreed that Richard Wollerson be suspended from his position as Agricultural Inspector I, without pay or accrual of benefits, for thirty days. All costs are taxed to Woller-son.

REVERSED AND RENDERED.

      . We note that La.Const. article 10, section 12, has been amended. This amendment gives the referee the power to decide cases and also provides for the decision of the referee to become the final decision of the Commission in certain cases. The amendment became effective on October 15, 1982. The hearing and decision of the Commission on the merits occurred prior to the amendment; thus, the referee in the instant case did not have decision-making powers. Therefore, the opinion should have indicated that a due reading and examination of the record had taken place.

      . Compare Michel v. Dept. of Pub. Saf. Al. Bev. Con. Bd., 341 So.2d 1161 (La.App. 1st Cir. 1976), writ denied, 343 So.2d 1078 (La.1977), which upheld the dismissal of an employee for falsification of work reports and expense accounts. See also Civil Service Rule 14.1(j) which prohibits the making of false statements or reports with regard to employment.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Delton H. CASON v. DIAMOND M DRILLING COMPANY, et al.
    No. 82 CA 0638.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 7, 1983.
    Writ Denied Nov. 18,1983.

      William B. Baggett, Baggett, McCall, Singleton, Ranier & Ieyoub, Lake Charles, for plaintiff.
    Joseph J. Weigand, Jr., Weigand & Sieg-rist, Houma, for Diamond M Drilling Co., defendant and third party plaintiff.
    Randall Theunissen, Allen Gooch & Bourgeois, Lafayette, for Union Oil Co., defendant and third party plaintiff.

      Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is a personal injury action brought by Delton H. Cason against Diamond M Drilling Company and Union Oil Company of California for injuries sustained by Cason when a well guide or templet on which Cason was engaged in welding fell into the Gulf of Mexico from a jackup rig, Diamond M 99. Diamond M had drilled a well from the rig, which was in the process of being plugged and abandoned. Cason was on the well guide cutting gussets with a welding torch, carrying out his duties as a maintenance welder employed by Diamond M, when the well guide fell into the Gulf. Union Oil owned the well guide and gussets, as well as the drive shaft to which the gussets were attached.

Union Oil filed a third party demand against Diamond M, seeking indemnification under a contract allegedly providing for indemnity, if Union Oil was found liable.

Suit was originally filed in Cameron Parish. The case was transferred to St. Mary Parish before trial after the filing of an exception of improper venue by Diamond M. Thereafter, Diamond M again filed an exception of improper venue, and Union Oil filed an exception of lack of jurisdiction over the subject matter, as the rig upon which the accident had occurred had been located near Texas territorial waters off High Island, Texas. Also, exceptions of prescription or laches were filed by both defendants. All exceptions were overruled and the case proceeded to trial on the merits, which took place before a jury on all issues, except indemnity. The sole basis for possible liability of Diamond M was under the Jones Act (as Cason’s employer) and the sole basis for possible liability of Union Oil was under the general maritime law of negligence.

The jury returned a verdict finding Cason 10% negligent, and “using 100% as the total amount of negligence by the defendants” found Diamond M 60% negligent and Union Oil 40% negligent. Total damages to plaintiff were assessed by the jury in the amount of $493,000.00. Union Oil and Diamond M filed motions for a new trial or remittitur. Only Union Oil was granted a new trial, which was limited to the question of the liability of Union Oil. A new trial was held before a separate jury on this issue, which found Union Oil not negligent under the general maritime law, and hence not liable. The trial court, based upon the jury’s finding of 10% comparative negligence on the part of Cason, rendered judgment in favor of Cason and against Diamond M in the sum of $443,700.00. From the judgment Diamond M and Cason appealed. We affirm in part and reverse in part.

FACTS

Cason, who was previously employed as a bench welder and as a logger, had only a high school education. At the time of the accident, he was in his early thirties, and was employed as a maintenance welder.

The rig on which Cason was employed was owned by Diamond M, which as an independent contractor had undertaken to drill the well in question for Union Oil by modification of a prior agreement to drill a well in a different location (at Main Pass) for Mobil Oil. A Union Oil representative was on the rig, Dennis Romero, who was a graduate petroleum engineer, and who had general supervision over the tool pusher, Ken Smith. Romero testified at both the original trial and the new trial, but Smith could not be located to testify.

Diamond M had drilled a well for Union Oil from the rig in question, which operated from a movable drilling barge with jackup legs. The well was being plugged and abandoned. On the date of the accident on or about December 31,1977, the well guide, which was used to guide the drive shaft, had been lifted from the ocean floor. The well guide was a 5 or 6 ton steel girder box which was held up, once lifted from the water, by gussets attached to the drive shaft both at the top and bottom of the box-like well guide. It was necessary to cut the gussets to salvage the well guide, which, as we have said, belonged to Union Oil. Cason, the maintenance welder, and a worker named Stelly, were assigned the task of cutting the gussets.

Smith explained the procedure to Romero. Romero had no experience in retrieving well guides, although he had had several years practical experience in working on drilling rigs. After hearing Smith’s explanation, Romero agreed to the procedure. The bottom gussets were to be cut first. The well guide was to have a secondary support from two air hoists, the lines of which ran near the edge of the Texas Deck, which lay immediately below the drilling deck.

When Cason was assigned the task of cutting the gussets, he expressed apprehension to both Smith and Romero, but Smith assured him the procedure was safe. Cason was lowered to the well guide.

The air hoist lines if left taut would brush the sides of the Texas Deck. For this reason the lines were left slack until pads could be placed at the ends of the Texas Deck to cover the sharp edges of the deck. Although Romero was on the Texas Deck for about ten minutes, he failed to observe that the lines were not taut.

Cason started to cut the bottom gussets, and while he was in the act of cutting the last bottom gusset, the gussets on the top or the supports leading from the top gussets to the well guide gave way, and the entire weight of the well guide fell on the air hoist lines, which also gave way because they were slack. The well guide plummeted to the Gulf, which was about 30 or 40 feet below, carrying Cason and Stelly.

Cason blacked out momentarily while he was falling, but after going beneath the surface of the Gulf, to a considerable depth, rose to the surface. Both Cason and Stelly were saved.

Cason suffered a compression fracture of the first and second lumbar vertebrae. . He also suffered a burst ear drum. He was taken to John Sealy Hospital in Galveston, and then placed under the care of Dr. Don H. Burt, an orthopedic surgeon in Shreveport. Following Dr. Burt’s advice, Cason attempted to return to work, but had to stop working after a short time because of intense pain, which was caused by assuming awkward positions while welding. Cason thereupon started logging with his father, at a considerable reduction in wages. He appears to have been engaged in logging up to the time of the trial.

The appeals raise practically the entire range of issues considered by the trial court, including the exceptions.

EXCEPTIONS

The present action seeking recovery under the Jones Act and general maritime law is brought under the “saving to suitors” clause of 28 U.S.C. § 1333, which saves to suitors, bringing an in personam claim seeking relief under the laws of admiralty, a remedy in a “common law” (i.e., non-admiralty) court. In an action brought in state court under the “saving to suitors” clause, federal substantive law applies, but where the result is not substantially affected, the procedural law of the forum applies. Lavergne v. Western Co. of North America, Inc., 371 So.2d 807 (La.1979), Gilmore and Black on Admiralty, §§ 1-13 (2d ed. 1975). As the forum is the District Court of Louisiana, this State’s procedural law applies in all aspects of the present case where the result is not substantially affected.

Jurisdiction and venue are quite obviously matters that are governed by Louisiana law in the present case. Diamond M is a foreign corporation authorized to do business in Louisiana, having an agent for service of process in this state. Therefore, LSA-C.C.P. art. 42(4) applies in determining whether or not venue lies in St. Mary Parish, Louisiana:

“The general rules of venue are that an action against:
(4)A foreign corporation licensed to do business in this state shall be brought in the parish where its principal business establishment in the state is located, as designated in its application to do business in the state;”

It appears to be agreed by all parties that the principal place of business of Diamond M in this state is in St. Mary Parish. Therefore, venue lies in St. Mary Parish.

As to Union Oil’s exception of lack of subject matter jurisdiction, the trial court obtained jurisdiction over the person of both Diamond M and Union Oil. A Louisiana court which has jurisdiction over the person and which has before it a “saving to suitors” action brought in personam under the Jones Act and general maritime law clearly has jurisdiction over the subject matter. See LSA-C.C.P. art. 2. Thus, there is no merit to Union Oil’s exception of lack of subject matter.

As to the pleas of prescription and laches, these are substantive matters, to which federal law applies. The statute of limitations under the Jones Act is 3 years. Laches applies to a general maritime claim. The accident occurred on or about December 31,1977. Cason filed suit in state court against Diamond M on May 30, 1979. A suit had earlier been filed in Federal court against both Diamond M and Union Oil, which was dismissed without prejudice on May 16, 1979. Plaintiff filed a pleading styled “Second Supplemental and Amending Petition” in state court naming Union Oil as an additional party defendant on November 29, 1979.

Clearly, the 3 year statute of limitations under the Jones Act had not expired. Especially in view of the fact that an earlier suit had been filed in Federal court against both Diamond M and Union, we find that the equitable doctrine of laches is inapplicable to the maritime claim.

NEW TRIAL

Diamond M and Cason contend that a new trial should not have been granted to Union Oil, because (1) a new trial may be granted only if the jury’s finding is contrary to the “great weight” of the evidence (Narcisse v. Illinois Central Gulf Ry. Co., 620 F.2d 544 (5th Cir.1980)), and (2) the respective liabilities of Union Oil and Diamond M were so intertwined that a new trial should not have been granted as to one only. Because we agree with the second contention, we find it unnecessary to consider the merits of the first.

Applying the admiralty doctrine of comparative negligence, the jury in the first trial, as we have stated, found Diamond M 60% negligent, Union Oil 40% negligent as between the two defendants, and Cason 10% negligent. Granting a new trial to determine the negligence vel non of Union Oil inevitably affected the percentage of comparative negligence for which Diamond M would be held liable under the Jones Act. As stated in Moore’s Federal Practice, Vol. 6, § 59.06 at pp. 59-80, and the cases cited therein, a partial new trial cannot be granted if the issues as to which the partial new trial is ordered are so intertwined with issues as to which it is not ordered that the partial new trial cannot be held without substantial injustice resulting therefrom. We find the granting of the new trial in the present case to have resulted in serious injustice to Diamond M, as the question of the comparative negligence of Diamond M was determined although it was not granted a new trial, and although the relative or comparative percentages of liability of Dia-. mond M and Union Oil were bound one by the other.

As we find a partial new trial was improperly granted, we are limited to the transcript of the proceedings of the first trial in our review, and it is to that transcript that we shall confine our further consideration.

LIABILITY OF DIAMOND M

Diamond M was clearly negligent through its tool pusher, Ken Smith, in having ordered Cason to cut the gussets above the Gulf, especially in view of the fact that the well guide was1 not properly secured. We affirm the finding of negligence on the part of Diamond M.

LIABILITY OF UNION OIL

The original jury found Union Oil to have been 40% negligent.

In a maritime claim brought in state court, the trial court must have been “clearly erroneous” in order for its holding to be overturned. Rivers v. Schlumberger Well Surveying Corp., 389 So.2d 807 (La.App. 3d Cir.1980); Portier v. Texaco, Inc., 426 So.2d 623 (La.App. 1st Cir.1983).

The finding that Union Oil was 40% negligent, which was arrived at by the jury in the original trial, was not clearly erroneous, but was supported by the great weight of the evidence. Union Oil was negligent, in the first instance, in stationing a company representative to supervise retrieval of a well guide who had no experience with that type of procedure. Furthermore, Romero, the company representative actually so stationed, was himself guilty of negligence. Romero approved the outline of the procedures described to him by the tool pusher, Ken Smith, with regard to cutting the gussets. Romero was on the Texas Deck and should have seen that the secondary supports for the well guide in the event the upper gussets were to fail, viz. the air hoist lines, were not taut, but slack, and hence, also likely to fail in the event the upper gussets were to fail. Romero was on the Texas Deck for some 10 minutes and failed to inspect that aspect of the procedure. If Romero would have had proper and sufficient experience, or had refused to approve the procedure, or had demanded the air hoist lines be taut, the accident would not have occurred. Clearly, a finding of 40% negligence on the part of Union Oil is justified by the record.

NEGLIGENCE OF CASON

Applying comparative negligence under admiralty law, the first jury found Cason 10% negligent. This finding was clearly erroneous.

The duty of a seaman, such as Ca-son, is not to find the safest method for doing the work, but to do the work assigned. The seaman’s duty to protect himself is slight. Bobb v. Modern Products, Inc., 648 F.2d 1051 (5th Cir.1981).

Cason worried aloud of the dangers of cutting the gussets in his conversations with both Romero and Smith. Smith assured him the procedure was safe, and in effect, ordered Cason to perform the task. Cason had no choice but to perform the task as assigned. There is nothing that would indicate he violated instructions, or failed to perform the assigned task in the safest possible manner. The jury was clearly erroneous to have found any contributory negligence on the part of Cason, in any percentage at all. Accordingly, we hold Cason free from negligence.

QUANTUM

After Cason sustained his injury and was discharged from treatment by Dr. Burt, Cason attempted to return to his old job as a maintenance welder for Diamond M. After a brief time, he found that he could not perform his duties without suffering intense pain, as he was required to assume awkward postures, principally crouching, while welding. For that reason, Cason quit his job as welder, and went to work for his father as a logger near his family home at Campti, Louisiana. He works only part time, because of pain. However, the pain is somewhat less in logging, in which he can kneel, than in welding, in which he is required to crouch.

Cason’s earnings as a logger are considerably less than his earnings received when his physical condition permitted him to weld. Cason called Donald Cornwell of the Economics faculty at the University of Southwestern Louisiana to testify as to past and future loss of earnings. Mr. Cornwell testified that the loss of earnings from date of accident to date of trial was $61,048.97, bearing in mind that he worked for Diamond M as a maintenance welder briefly and as a logger on a rather permanent basis during this period. As to future loss of earnings, Mr. Cornwell testified that Ca-son’s work life expectancy, at date of trial, was 30.15 years. Using this figure, Mr. Cornwell testified that future loss of earnings, assuming Cason were to continue to work as a logger, would come to $239,-706.72, without consideration of inflation. The total figure would thus be $300,755.69. If Cason were to receive only the minimum wage, rather than wages as a logger, his total loss of earnings would come to $467,-718.97.

The jury found total damages to plaintiff in the amount of $493,000. The interrogatories submitted to the jury did not permit the jury to break this sum down. Cason testified that he continued to suffer pain up to the date of the trial. Dr. Burt, the treating physician, testified that he had no reason to doubt the veracity of Cason’s statement that he continued to experience pain as a result of the injury to his back. He testified that in his opinion Cason had sustained a permanent disability to the entire body of 15 to 35% as a result of the accident. He further testified that the American College of Orthopedic Surgeons would place the disability of the entire body at 25%. A specialist who saw Cason on two occasions as an examining physician, Dr. Norman H. Morin of New Orleans, likewise testified that Cason continued to experience pain, and should not return to any type of work requiring bending, as to do so would inevitably cause his condition to worsen.

Thus, Cason experienced severe pain, and will continue to experience pain, in all likelihood, the remainder of his life. Considering pain and suffering, and partial future loss of income, we do not find the jury’s assessment of the loss to be excessive.

Defendants contend that the testimony of Dr. Burt and Dr. Morin was in conflict, as Dr. Morin seemed to think that Cason should not return to his job as maintenance welder while Dr. Burt released Ca-son to return to his job in that capacity. Defendants cite the well-known proposition that the testimony of the treating physician is to be preferred to that of a physician who examines the injured person only once or twice. Lockhart v. Pargas, Inc., 271 So.2d 664 (La.App. 1st Cir.1972), writ refused 273 So.2d 844 (La.1973). Knighten v. AM Amusement Co., 272 So.2d 60 (La.App. 4th Gir.1973). The statement that the physicians’ testimony is in conflict glosses over the essential similarity of their respective findings. Taking their testimony as a whole, we see from a reading of the transcript that both Dr. Morin and Dr. Burt thought Cason had sustained permanent damage to the discs lying between the compressed vertebrae, and both believed him to be in pain at their last examination. Neither physician was an expert in the requirements of the duties of a maintenance welder. Cason testified that because he was required to assume a crouching position while welding, he could not perform his duties as maintenance welder without severe pain. The trier of fact has to weigh both medical and lay testimony in assessing damages, and considering the credibility and the relative qualifications of the experts and the credibility of all witnesses, to arrive at a result. Touchet v. Fidelity and Cas. Co. of New York, 264 So.2d 752 (La. App. 3d Cir.1972); Guidry v. Davis, 382 So.2d 250 (La.App. 3d Cir.1980).

The trial court’s charge to the jury contained the following statement:

“You as members of the jury are entitled to give greater weight to the opinion of a treating physician than that of a physician who has not examined the patient, or who has examined the patient for purposes of evaluation only. However, you are entitled to give credibility to the testimony of any witness as you think it deserves.”

We cannot say, in the light of the law, that this portion of the charge to the jury was in error, or, in light of the great weight of the medical and lay testimony that Cason was still in pain, or especially'Dr. Burt’s testimony that Cason had sustained a 15% to 35% permanent disability of the entire body as a result of the accident, that the jury’s assessment of damages was clearly erroneous. See Rivers v. Schlumberger Well Surveying Corp., supra.

The trial court limited the award of damages to Cason to the sum of $443,700.00, because of the jury’s finding of 10% negligence on the part of Cason. As we have found Cason not to have been negligent at all, we increase the total award to the full sum of $493,000.00. The percentages of negligence shall be apportioned between Diamond M and Union Oil as set forth below:

LIABILITY

As we find that Cason was not negligent in any degree, it follows that 60% of the total negligence is attributable to Diamond M, and 40% of the total negligence is attributable to Union Oil.

However, the original drilling contract, entered into between Diamond M and Mobil Oil Corporation, under date of February 21, 1977, contained an indemnity clause in favor of Mobil in which Diamond M agreed to hold Mobil harmless from death, injury, or property damage arising out of the performance of the contract. This contract provided for Diamond M to drill a well at Main Pass Block 72-74 # 2. By letter from Mobil to Diamond M, dated August 25, 1977, with copy to Union Oil, it was stated that pursuant to telephone conversation, Diamond M was to drill a well under the same drilling contract in Union-Mobil High Island Block A-443, with Union as operator. The signature of a representative of Diamond M appears at the bottom of the letter approving the agreement. The letter states that the agreement “will fulfill commitments” of both parties. Both Diamond M and Union agree that by virtue of this letter all provisions of the drilling contract, including the indemnity provisions, were made applicable in favor of Union Oil against Diamond M.

The indemnity and insurance provisions of the contract between Mobil and Diamond M, the rights under which, as we have stated, were made applicable in favor of Union Oil, read in their entirety as follows:

“14. INSURANCE AND INDEMNITY
14.1 At any and all times during the term of this agreement, Contractor agrees to maintain in force and submit evidence of insurance equal to or in excess of the requirements detailed in Exhibit B attached hereto and made a part hereof.
14.2 All insurance shall be carried in a company or companies acceptable to Mobil and shall be maintained in full force and effect during the term of this agreement, and shall not be canceled, altered, or amended without ten (10) days prior written notice having first been furnished Mobil. Upon request Mobil shall be furnished certified copies of all such insurance policies.
14.3 In the event Contractor is a self-insurer and Mobil has consented to Contractor’s being a self-insurer as to any one or more of the risks as to which coverage is required, evidence of such consent must be in writing and approved by a representative of Mobil authorized to enter into such consent agreement. It is recognized that Contractor is self-insured for $250,000.00 of Workmen’s Compensation and General Liability.
14.4 Contractor shall protect, indemnity (sic) and save Mobil harmless against any and all claims, demands and causes of action of every kind and character made against Mobil or in which Mobil may be named party defendant by Contractor’s employees, agents, or invitees, on account of personal injury or death, or on account of property damages (other than property damages specifically provided for in paragraphs 6.1, 6.2 and 6.3) occurring, growing out of, incident to, or resulting directly or indirectly from, the work to be performed by Contractor hereunder, irrespective of whether such claims are occasioned, brought about, or caused in whole or in part by the negligence of Mobil, or by the unseaworthiness of the Diamond M 99, and for damages for infringement of any patent as more particularly set forth in Paragraph 22 hereof.”

Paragraph 14.4 clearly obligates Diamond M to indemnify Mobil, and thereby Union Oil, from all claims against Mobil (Union Oil) arising out of property damages, personal injury, or death, in the performance of the contract, even claims arising in whole or in part from the negligence of Mobil. Thus, the contract, unless limited by state or admiralty law, obligates Diamond M to indemnify Union Oil fully from all claims Cason has against Union Oil arising out of the accident sued upon, even though, as in the present case, the accident resulted in part from the negligence of Union Oil.

The trial court applied Texas statutory law to the indemnity agreement, and limited Union Oil’s right to indemnity to $100,-000.00 under effect of Texas law. The provisions of Texas Revised Civil Code Annotated, Article 2212, would, generally stated, have the effect of limiting liability of a drilling contractor under an indemnity clause to the amount agreed to be covered by insurance. Louisiana, after the date of the accident sued upon, adopted an even broader statute, voiding indemnity provisions in such circumstances. See LSA-R.S. 9:2780, added Act No. 427 of 1981, amended 1981, 1982.

However, we find that neither Louisiana law nor Texas law applies, but as the contract between Diamond M and Mobil (Union Oil) is a maritime contract, the admiralty law affecting indemnity contracts as applied by courts in the United States applies. See A/S J. Ludwig Mowinckels Rederi v. Commercial Stevedoring Co., 256 F.2d 227 (2nd Cir.1958); Hudson Waterways Corp. v. Coastal Marine Service, Inc., 436 F.Supp. 597 (E.D.Tex.1977). These cases recognize the need for uniformity between the laws affecting indemnity under maritime contracts, and clearly and squarely hold that the Federal admiralty law affecting indemnity contracts is to be applied. Hudson Waterways states that clauses in maritime contracts containing indemnity or release from liability provisions which indemnify the indemnitee for the consequences of its own negligence are to be fully enforced, with but one exception, towing contracts. In these contracts release from liability clauses providing indemnity for the indemnitee’s negligence are denied any effect whatsoever as a matter of public policy. The towing contract exception with regard to release clauses was first clearly recognized in Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955), as a matter of public policy, for two main reasons, the court stated, (1) to discourage negligence and (2) to protect those who are unable to negotiate on equal terms with towing companies. It is true that drilling companies often do not negotiate on equal terms with major oil companies in entering into contracts to drill wells, and Bisso’s policy consideration clearly lies behind the Louisiana and Texas statutes cited above. However, under Ludwig, supra, and Hudson Waterways, supra, the statutes of these states are inapplicable, and we are reluctant indeed and unwilling to create an additional exception to the general rule of the federal courts that indemnity clauses in admiralty contracts shall be enforced as written where, as in this contract, the language of the indemnity provision is clear and unequivocal.

We, therefore, give effect to paragraph 14.4 of the drilling contract between Mobil and Diamond M obligating Diamond M to indemnify Mobil, and, by subsequent agreement, Union Oil, from any claim from personal injury, death, or property damage made against Mobil (Union Oil). Thus, Union Oil must be indemnified by Diamond M to the full extent of its liability to Cason arising out of the accident sued upon.

DECREE

For the reasons set forth above, we set aside and vacate the judgment of the trial court, and render judgment:

(1) In favor of Delton H. Cason, and against Union Oil Company of California, for 40% of $493,000.00, or $197,200.00, together with legal interest from July 9,1981.

(2) In favor of Delton H. Cason, and against Diamond M Drilling Company, for 60% of $493,000.00, or $295,800.00, together with legal interest from July 9,1981.

(3) In favor of Union Oil Company of California and against Diamond M Drilling Company, for 40% of $493,000.00, or $197,-200.00, together with legal interest from July 9, 1981.

(4) Against Diamond M Drilling Company, for all costs at trial and on appeal.

VACATED AND RENDERED.

      . Diamond M also filed an exception of no right of action which was overruled by the trial court. No appeal from that ruling was taken.

      . Cf. Dickerson v. Continental Oil Co., 449 F.2d 1209 (5th Cir.1971), which held that the Outer Continental Shelf Lands Act, 43 U.S.C.A. Sec. 1331 et seq., made Louisiana law applicable to an indemnity agreement affecting a fixed drilling platform because the fixed drilling platform was not a “vessel”. The case of Hicks v. Ocean Drilling and Exploration Co., 512 F.2d 817 (5th Cir.1975) held that Louisiana law applied to an indemnity agreement, relying solely upon Dickerson as authority although it found the movable storage tank therein involved to be a “vessel”. If Dickerson had been interpreted properly, Louisiana law would not have been applied in Hicks, as in Hicks the indemnity agreement involved a “vessel”, which is clearly excluded from the Outer Continental Shelf Lands Act, to which the reasoning in Dickerson is limited. Clearly the drilling barge involved in the present case was likewise a “vessel”, and Federal law, not Louisiana law adopted as Federal authority by the Outer Continental Shelf Lands Act, applies to the present indemnity agreement.


author: SAVOIE, Judge.

text:
    Mrs. Georgia Parker HAMPTON, Individually and as Natural Tutrix of Marge Lynette Hampton v. RUBICON CHEMICALS, INC., et al.
    No. 82 CA 0854.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 7, 1983.

      R. Bruce Macmurdo, and Walker P. Mac-murdo, Baton Rouge, and Victor L. Marcel-lo, Donaldsonville, for plaintiff-appellant Mrs. Georgia Parker Hampton, individually and as Natural Tutrix of Marge Lynette Hampton.
    Boris F. Navratil and Dorothy D. Thomas, Baton Rouge, for defendant-appellee Barnard & Burk, Inc. and Fireman’s Fund Ins. Co.
    Before PONDER, SAVOIE and CRAIN, JJ.

       Savoie, J. would grant the rehearing based on the Supreme Court case of Barker v. Rust Engineering Co., 428 So.2d 391 (1983).

   SAVOIE, Judge.

Plaintiff, Mrs. Georgia Parker Hampton, appeals a jury decision denying her recovery for the wrongful death of her husband, Mack H. Hampton.

On January 29,1974, Mr. Hampton, while working as a contract employee for Plant Service Division of Barnard & Burk, Inc. (B & B), was exposed to deadly phosgene gas. At approximately 5:15 P.M. on the date of the accident, a phosgene gas leak developed on the MDI unit of Rubicon Chemicals, Inc. (Rubicon), the then current contract employer of B & B employees. In the early morning hours of January 30, 1974, Mr. Hampton died as a result of his exposure to this gas.

Plaintiff, Mr. Hampton’s widow, both individually and for her minor child, filed suit against Rubicon, Reliance Insurance Company (Rubicon’s insurer), Barnard & Burk, Inc., Fireman’s Fund Insurance Company (Barnard & Burk’s insurer), hereinafter referred to as Fireman’s Fund, and numerous employees and/or executive officers and agents of both Rubicon and B & B. Prior to trial, a settlement was reached on behalf of Rubicon Chemicals, Inc., Reliance Insur-anee Company, and the employees of Rubicon.

Prior to empaneling the jury, plaintiff requested a statement be given the jury that only one defendant remained, Fireman’s Fund. At trial, plaintiff attempted to show that Fireman’s Fund, as insurer of B & B’s executive officers, was liable for their negligent acts. Particularly, she attempted to show that John Daniel, B & B’s Vice-President of Administration, had negligently assigned his responsibility for B & B’s employees’ safety program and its implementation to Julian Dyason, B & B’s safety consultant. Accordingly, she asserted that Fireman’s Fund is liable for the negligent acts of B & B’s executive officer.

After the trial on the merits, plaintiff claimed to have discovered new evidence to substantiate Fireman’s Fund’s liability for the alleged negligent acts of B & B’s safety consultant, Julian Dyason. After a hearing, the trial court denied plaintiff’s motion for a new trial. Plaintiff appeals both the jury’s and the trial court’s decisions, complaining that:

1. Fireman’s Fund’s incorrect responses to discovery enabled Fireman’s Fund to construct its successful central defense at trial,
2. The trial court gave improper jury instructions,
3. The trial court made a gross misstatement of the law regarding executive officer liability which confused and misled the jury,
4. The jury was clearly wrong in failing to find John Daniel negligent in delegating his authority to a safety consultant,
5. The trial court erred in not allowing rebuttal testimony,
6. The trial court erred in forcing plaintiff to call an alleged tort-feasor on direct examination,
7. The trial court erred in allowing parol evidence to be introduced as to the meaning of the contract between Rubicon and B & B, and
8. The trial judge erred in not granting plaintiff’s motion for a new trial.

ASSIGNMENT OF ERROR NO. 1

Plaintiff first contends that the judgment of the trial court should be reversed or, at least, a new trial ordered, due to Fireman’s Fund allegedly misleading or incorrect discovery responses and suppression of documents.

Prior to trial, plaintiff propounded certain interrogatories to Fireman’s Fund to produce any correspondence from B & B or anyone else concerning liability coverage for certain named individuals. The production of documents/correspondence concerning such liability coverage for those certain individuals was also requested. After completion of the trial, plaintiff discovered the existence of an indemnification agreement between Julian Dyason and B & B. Plaintiff asserts that this document should have been produced as it allegedly supplies pertinent liability coverage. In pertinent part, the contract of employment between Julian Dyason and B & B provides that:

“Barnard & Burk, Inc. hereby agrees to defend or indemnify and hold harmless Julian Dyason and Associates against any and all expense which they might incur as a result of any suit brought against them by an employee of Barnard & Burk, Inc. as a result of the services being rendered under the terms of this agreement.” (Emphasis added).

This is not a contract of liability insurance coverage. The aforementioned provision is a contract of indemnification.

It is settled that “... where the contract is strictly one of indemnity, the indemnitee cannot recover until he has suffered actual loss or damage. Where the contract is to protect against liability, the indemnitee may recover as soon as his liability has become established.” Louisiana & N.W.R. Co. v. Athens Lumber Co., 134 La. 788, 793, 64 So. 714, 716 (1914); see also Abadie v. Gluck’s Restaurant Corporation, 168 La. 241, 121 So. 757 (1929). Based upon these rules, it is settled that the indemnitor cannot be called upon to indemnify the in-demnitee unless the indemnitee’s liability has been established.

In the instant case, plaintiff named Julian Dyason (indemnitee) as a defendant but failed to serve him. As such, he never became a proper party defendant in this litigation. Not having been a defendant, his liability was never established. Consequently, neither B & B (indemnitor) nor its insurer, Fireman’s Fund, was ever required to respond in indemnification.

However, plaintiff contends that had she known of the contract of indemnification between Julian Dyason and B & B, she would have sued Dyason. Of course, the mere fact that plaintiff did not know of the indemnity agreement did not keep her from suing Dyason. However, assuming, ar-guendo, that with the information requested plaintiff would have sued Dyason, and had she done so, defendant’s approach to the jury might have been different, the question that was before the trial court and is presently before us is whether a new trial should be granted because of this. A new trial will be granted on the basis of newly discovered evidence where the court is convinced that the evidence discovered would have affected the outcome of the trial. C.C.P.1972, Baltzar v. Missouri Pacific Railroad, 406 So.2d 324 (La.App. 3rd Cir., 1981).

It is highly speculative that the evidence of the indemnity agreement would have resulted in Dyason’s being sued, the defense to the suit being changed, and the jury’s verdict being different. Consequently, the refusal of the trial judge to grant a new trial was not an abuse of discretion. Balt-zar, supra.

We find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 2

Plaintiff contends that the jury instruction regarding the standard by which an executive officer can be absolved of liability by delegating authority was improper. L.S;A.-C.C.P. art. 1793 provides in pertinent part:

“.'.. A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection .... ” (Emphasis added).

Our court, interpreting this article, has held:

“The foregoing codal provision is clear and unambiguous. It establishes a procedural rule which, by its terms, is mandatory if a litigant desires to preserve the right to appellate review of denial of a requested jury charge. The statute requires that the litigant must not only object to each special charge which is refused, but must also state the grounds for each such objection. The purpose of the requirement that the grounds for each objection be stated is obviously to afford the trial court opportunity to reweigh its refusal in the light of the merits, if any, of the grounds advanced by counsel making the objection.” Lea v. Baumann Surgical Supplies, Inc., 321 So.2d 844 (La.App. 1st Cir.1975), writs refused, January 16, 1966 [325 So.2d 279]; see also Vitari v. Lewis, 361 So.2d 476 (La.App. 4th Cir.1978); and Geislar [Geisler] v. Louisiana Power & Light Co., 346 So.2d 339 (La.App. 4th Cir.1977).

In this instance, plaintiff timely made a blanket objection to the trial judge’s jury charge but did not assign the grounds for these objections. Consequently, the objection was waived. Accordingly, we find plaintiff’s second assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 3

Plaintiff next contends the trial judge erred in making comments in the jury’s presence that gave them an incorrect impression of the law regarding an executive officer lawsuit.

The question, objection and ruling complained of is as follows:

“BY MR. B. MACMURDO:” (plaintiff’s attorney)
“Q. How large was — how many employees did Barnard & Burk have in January of 1974?
“MR. NAVRATIL: I object to that as being irrelevant.
“THE COURT: Do what?
“MR. NAVRATIL: An irrelevant question.
“THE COURT: I think that’s true.
“MR. MACMURDO: Your Honor, may it please the Court, with an executive officers suit the relative role of an executive officer in the corporation is important.
“THE COURT: I don’t see that it makes any difference if there is one employee or a thousand employees, what the executive officer had — what his duties were or anything like that doesn’t make any difference. It’s irrelevant.”

Reading the record in toto, it is clear that the trial court did not rule that the duties of the executive officers were irrelevant. On the contrary, he ruled that any question concerning the number of employees at B & B in January, 1974, was irrelevant. Nonetheless, the record reflects that subsequently this information was introduced into evidence. Accordingly, we find this assignment of error to be totally without merit.

ASSIGNMENT OF ERROR NO. 4

Plaintiff further asserts that the jury verdict was clearly wrong in finding that John Daniel was not negligent and that his negligence was not a proximate cause of the death of Mack Hampton. In her brief, plaintiff enumerates the following facts as proof that John Daniel was negligent, to-wit:

“1. Mack Hampton did not know he was working near a poisonous gas; in fact, he did not know what phosgene gas was!
“2. All the Rubicon employees either put on masks or stayed upwind and were unharmed; no Barnard & Burk personnel put on masks, and some did not evacuate promptly, and four were hospitalized for 19 days; Hampton was killed,
“3. Even Herman Schenk, the only Barnard & Burk employee present during the spill with any supervisory responsibility, admitted that escape masks would have kept the Barnard & Burk men from serious harm,
“4. Schenk tried to testify that the Barnard & Burk men were properly trained but he himself did not know that there were some Rubicon can-nister masks on the unit which would have protected the men and Schenk did not know that phosgene gas had a delayed effect,
“5. Dean Armstrong, the superintendent for Barnard & Burk at the Rubicon plant, admitted that the Barnard & Burk men were not trained to use escape masks,
“6. Fireman’s Fund did not produce any proof that evacuation drills were conducted or that there was even an escape plan in case of a phosgene spill, and
“7. John Daniel breached a duty owed to Mack Hampton by failing to establish a safety program that would inform him of the dangers of phos-gene and how to protect himself when exposed to phosgene.”

Plaintiff’s arguments are directed to the jury’s findings of fact.

It is well settled in Louisiana that the findings of the trier of fact are entitled to great weight and will not be overturned absent clear error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); and Lott v. Burton, 423 So.2d 53 (La.App. 1st Cir. 1982). Further, we may not substitute our evaluations and inferences for the reasonable evaluations and inferences of the trier of fact, unless those conclusions are clearly erroneous. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980); and Esta v. Dover Corp., 385 So.2d 439 (La.App. 1st Cir.1980), writ refused, 392 So.2d 690 (La. 1980). We find no clear error as to the jury’s findings. Accordingly, we find plaintiff’s fourth assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 5

Plaintiff contends the trial court erred in not allowing certain witnesses to testify on rebuttal. The matter of admission of rebuttal evidence is largely within the discretion of the trial judge. Baltzar v. Missouri Pacific Railroad, 406 So.2d 324 (La. App. 3rd Cir.1981); and Lea v. Baumann Surgical Supplies, Inc., 321 So.2d 844 (La. App. 1st Cir.1975), writ denied, 325 So.2d 279 (La.1976).

Here, plaintiffs counsel stated to the court “I think it’s proper for me to bring him back to repeat it ... since it’s been challenged.” (Emphasis added). We glean from this statement that the testimony to be presented by the rebuttal witness was merely repetitive. As such, the trial court did not abuse its discretion in sustaining defendant’s objection. Accordingly, plaintiff’s fifth assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

Plaintiff next contends that the trial court erred in forcing plaintiff to call certain witnesses on direct-examination rather than on cross-examination. It is asserted that this ruling led to the ludicrous result that Mr. Daniel was also required to be called on direct-examination rather than on cross-examination.

L.S.A. — C.C.P. art. 1634 provides:

“Any party or his representative may be called as a witness and cross-examined by the adverse party without the latter vouching for his credibility, or being precluded from impeaching his testimony, and immediately thereafter the witness thus called may be examined or cross-examined to the extent otherwise permitted by law upon the subject matter of his examination in chief by such adverse party. The court may permit the recall and further cross-examination of the party or his representative as often as it deems such action to be in the interest of justice. “ ‘Representative’ as used in the paragraph above and in Article 1428(2) means an officer, agent or employee having supervision or knowledge of the matter in controversy, in whole or in part, whether or not he is in the employ of or connected with the party at the time his testimony is taken” (Emphasis added).

The record reflects that plaintiff called Mr. Dennis D. Flurry, currently employed by B & B as a maintenance superintendent. Mr. Flurry testified that he had also been employed by B & B prior to the date of the accident as a maintenance supervisor on the MDI unit. However, he was not employed by B & B at the time of the accident. Defendant then objected to Mr. Flurry being called on cross-examination.

Mr. Flurry was an employee of an adverse party (B & B), since dismissed, to this litigation. As such, he falls within the ambit of the term “representative” and should have been allowed to be called on cross-examination. See Esta v. Dover Corp., supra; and Powell v. Parkview Estate Nursing Home, Inc., 240 So.2d 53 (La. App. 2d Cir.1970).

However, the trial court’s ruling was harmless error. It had no effect on the outcome of the trial and in no way prejudiced the plaintiff’s case. Plaintiff contends that the inability to call Mr. Flurry on cross-examination led to the plaintiff not being able to call Mr. Daniel on cross-examination. This argument is totally without merit for the following rationale.

The trial court’s ruling as to Mr. Flurry’s testimony had nothing to do with plaintiff’s ability to call Mr. Daniel on cross-examination. The record reflects that the trial judge stated that “this witness”, referring to Mr. Flurry, could not be called on cross-examination. No such ruling or objection was made as to Mr. Daniel. Further, the record clearly shows that Mr. Daniel was never called on cross-examination but was called on direct examination. As such, plaintiff’s contention is without merit. Accordingly, we find the plaintiff’s sixth assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 7

Plaintiff also contends the trial court erred in allowing parol evidence to be admitted concerning B & B’s duty to supply safety equipment under its maintenance contract with Rubicon. The contract provides in pertinent part: .

“Article 2, paragraph 3
“Small tools including those shown on the attached Schedule A with a value of $300.00, more or less, are to be furnished by Contractor with no charge therefor other than Contractor’s fee although certain special tools valued in the amount both above and below $300.00 which are peculiar to Owner’s facility shall be furnished by Owner.
“Items shown on the attached Schedule A are considered expendable tools or supplies and not to be furnished by Contractor without reimbursement other than the said fee.”

and

“Article 16 which provides in pertinent part:
“Unless otherwise specified, Contractor shall provide and pay for all materials, labor, tools, equipment, transportation, and other facilities necessary for the execution and completion of the work.”

In Schedule A, B & B assumed responsibility for providing the following included items: (1) filters, respirators, and (2) safety equipment.

Under Louisiana law, although parol evidence is inadmissible to vary the terms of a written contract, it is admissible to clarify ambiguity and to show the parties’ intention where the terms of the contract are susceptible to more than one interpretation, where there is uncertainty or ambiguity as to its provisions or where the intent of the parties cannot be ascertained from the language employed. L.S.A.-C.C. art. 2276; and Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981). However, the parol evidence rule applies only to actions between the parties to the contract and their privies, not to actions between parties and third persons. Hobbs v. Central Equipment Rentals, Inc., 382 So.2d 238 (La.App. 3rd Cir.1980).

Here, Mr. Daniel, as Executive Vice-President of B & B, signed the contract with Rubicon. As such, he is a party to the contract and his testimony is admissible to show the parties’ intent as to the contract.

Further, plaintiff cites two instances in which there appears to be a conflict in the trial court’s holding with respect to the admissibility of parol evidence concerning the contract. However, a close reading of the record indicates that in the first instance, the trial judge found the terms “filters and respirators” to be clear and unambiguous. As such, parol evidence is clearly inadmissible. L.S.A.-C.C. art. 2276.

In the second instance, the term which bears scrutiny is “safety equipment.” The trial court, relying on its previous determination that “safety equipment” could mean anything, overruled plaintiff’s objection to the introduction of parol evidence by Mr. Daniel as to its meaning. We find the term “safety equipment” to be ambiguous. As such, parol evidence is clearly admissible by a party to the contract to give definition to its terms. Accordingly, we find plaintiff’s seventh assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 8

Plaintiff lastly asserts that the trial judge erred in refusing to grant plaintiff's motion for a new trial. In brief, plaintiff asserts that based upon all of the foregoing assignments of error, a new trial should be granted.

Having already found all of plaintiff’s assignments of error to be without merit, we also find this assignment of error to be without merit.

For the above and foregoing reasons, judgment of the trial court is affirmed. Plaintiff-appellant is to pay all costs.

AFFIRMED.


author: PONDER, Judge.

text:
    HOUSTON GENERAL INSURANCE COMPANY v. WORKMEN’S COMPENSATION SECOND INJURY BOARD OF the STATE of Louisiana.
    No. 82 CA 0878.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.

      R. Michael Caldwell, Baton Rouge, for plaintiff-appellant Houston General Ins. Co.
    David G. Sanders, Baton Rouge, for defendant-appellee Workmen’s Compensation Second Injury Bd. of the State of Louisiana.
    Before PONDER, SAVOIE and CRAIN, JJ.
   PONDER, Judge.

Plaintiff appealed the dismissal of its claim for reimbursement from the Louisiana Workmen’s Compensation Second Injury Board.

The issues on appeal are the ambiguity vel non of La.R.S. 23:1378, exercise of discretion by the Second Injury Board, and plaintiff’s notice of the claim.

We affirm.

Plaintiff provided workmen’s compensation insurance to the state division that employed the claimant, who fractured her right femur on January 5,1976 while working in the course and scope of her employment. It was stipulated that plaintiff made the first payment of weekly compensation on January 21, 1976. The treating physician sent reports to State Adjusters, an independent adjuster working for the plaintiff, on January 26, 1976, and to the plaintiff on February 1, 1977. The reports indicated that a sarcomatous tumor had been removed from the claimant’s right thigh in 1969, resulting in a loss of motion of the knee.

Plaintiff wrote the doctor in May of 1977, asking for comment on the amount of disability the claimant had prior to her injury. The doctor’s reply indicated that the claimant originally had a thirty to forty percent impairment prior to her accident and an additional twenty percent impairment following the accident. The report stated that the bone was extremely osteoporotic partially from disuse from the fracture and partially from the x-ray therapy for the tumor. The plaintiff filed a claim with the Second Injury Board on May 27, 1977.

Correspondence ensued between plaintiff and defendant concerning the disability until March, 1979, when an additional report from the doctor was requested and received, explaining the percent of disability as a result of the tumor and the fracture. In that same month, defendant sent notice that the claim was not timely filed. Defendant sent four additional letters requesting an explanation for the delay and a notice that the Board would consider the timeliness of the matter on October 2,1980. Defendant received no response or request for formal hearing from the plaintiff, other than a request for a notice of any hearing that the Board held.

After the hearing, the Board denied the claim, finding that the one hundred eighty days from the first payment of weekly compensation, within which the employer or insured had to file the claim, had expired.

On plaintiff’s appeal, the Nineteenth Judicial District Court dismissed plaintiff’s claim on the grounds that it was not filed within ten days of the first compensation as required by La.R.S. 23:1378 at the time of the accident. In oral reasons, the trial judge found that Section 1378(B) was not ambiguous, but accorded an employer or insured the right to avail himself of the Second Injury Fund if he desired.

La.R.S. 23:1378(B), as it read at the time of the claimant’s accident and the first payment of weekly benefits stated:

“B. Whenever any employer or his insurer pays or becomes liable for payments to any employee for such an injury, the employer or his insurer, whichever of them makes the payments or becomes liable therefor, may, within ten days after the first payment of weekly compensation, notify the board in writing of such facts and furnish such other information as may be required by the board.”

Section 1378(B) was amended in 1976 to read:

“B. The employer or his insurer, whichever of them makes the payments or becomes liable, shall, within 180 days after the first payment of weekly compensation or death benefits, notify the board in writing of such facts and furnish such other information as may be required by the board to determine if the employer or his insurer is qualified for reimbursement from the workmen’s compensation second injury fund. Upon proper showing, the board may extend the filing period provided under the provisions of this Subsection.”

This amendment became effective October 1, 1976.

Plaintiff first argues that the change of “may” to “shall”, by the amendment, was to remove an obvious ambiguity and that an ambiguous prescriptive statute should be construed in favor of the obligation sought to be extinguished.

The only reasonably unstrained interpretation of the statute is that the term “may” allowed a claim against the Second Injury Fund to be a discretionary or permissible procedure, without making the time for filing the claim discretionary. This interpretation, that the filing of the claim could have been accomplished at anytime, would effectively write out the ten day limitation. It is not presumed that the legislature adopts vain, useless or meaningless law. Hills v. Bonin, 329 So.2d 773 (La.App. 1st Cir.), application denied, 333 So.2d 237 (La.1976).

The same argument applies to plaintiff’s suggested interpretation that the legislature intended that an employer or insured could be reimbursed without filing a claim. This interpretation would cancel the need for filing a claim.

That power to extend the filing period was not added until the 1976 amendment became effective. We therefore need not reach plaintiff’s argument that the discretion should have been exercised.

Plaintiff’s last argument is that the medical relationship between the two disabilities was not clear until plaintiff received the March, 1979 report from the doctor. However, the first report sent by the doctor noted that plaintiff’s “right thigh was markedly atrophied and she had a very stiff knee.” Plaintiff’s failure to pursue this point cannot extend the time for filing. Its argument that its agent, the adjusting firm, not it, had the information is unavailing.

For these reasons, the trial court’s judgment is affirmed with costs assessed to the plaintiff.

AFFIRMED.

      . The statute was again amended in 1977 to provide for a fifty-two week filing period.

      . We note that plaintiff was given approximately nineteen months to explain the delay, but never furnished the Board with a reason.


text:
    SUCCESSION OF Lem IRVING, Sr. and Wife, Susie McKnight Irving.
    No. 82 CA 0969.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 7, 1983.
    Writ Denied Nov. 18,1983.

      J.H. Simpson, Amite, for plaintiff-appel-lee.
    Gerald P. Aurillo, Metairie, for defendant-appellant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

Audrey Hickerson, present administratrix of the Succession of Lem Irving, Sr., and Susie McKnight Irving, filed suit against Roscoe Irving, Sr. (defendant) for damages resulting from the alleged violation of his fiduciary duty while he was administrator. The trial court found that defendant violated that duty when he sold two pieces of succession property at prices which were considerably below market value and rendered judgment against defendant for $6,000.00 (the difference between the fair market value of the properties at the time of the sales and the actual sale prices) plus 20% of the $6,000.00 ($1,200.00) as a penalty.

Lem Irving, Sr., died in 1942, and his wife Susie McKnight Irving died in 1943. They had eleven children, and defendant is the sole survivor. There are numerous living grandchildren. On September 13,1976, defendant petitioned to be appointed administrator and was so appointed. On the same day, defendant petitioned to sell one acre of succession property at private sale to his son Jerry Irving for the sum of $500.00. After the sale was duly advertised and no opposition was filed, judgment was rendered authorizing the sale. The sale was passed on October 27,1976. On January 11, 1979, defendant filed a petition to sell an additional acre of succession property to his niece, Sandra Watson Turner, for $1,500.00. After the proper procedures were completed, a judgment authorizing the sale was signed. The sale was passed on February 28,1978. The funds received from the sales were deposited in the trust account of Fannie E. Burch, defendant’s attorney, who passed the sales.

On March 4, 1981, a petition to remove defendant as administrator was filed, alleging that defendant had sold succession property at prices below market value, had failed to file annual accountings, had allowed the removal of timber from estate property without judicial authority, and had failed to perform his duties as administrator. On April 16, 1981, defendant was removed as administrator and replaced by Audrey Hickerson. On December 15, 1981, Audrey Hickerson filed this petition for damages resulting from sales of succession property at prices below market value.

Defendant testified that he was not aware of the fact that he had a fiduciary duty; that he thought that he could sell the land because he had paid the taxes for more than ten years; that he did not have the property appraised; and that he thought that the property was worth “a whole lot more” than what he sold it for. He stated that he originally intended to donate the property to his son and niece but his attorney had told him that a price was necessary.

Mike Passman, a real estate broker, testified that he appraised the lots in question and placed a value on them as of the dates that they were sold. He stated that the lot sold in 1976 for $500.00 was worth between $3,500.00 and $4,000.00 and that the lot sold in 1979 for $1,500.00 was worth between $4,500.00 and $5,000.00.

Defendant says that the trial court erred in finding that (1) he had violated his fiduciary duty, (2) the difference in the fair market values and the sale prices of the property totaled $6,000.00, and (3) La.C.C.P. art. 3222 mandated an award of penalties in the amount of 20%.

Louisiana Code of Civil Procedure article 3191 provides:

“A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.”

A succession representative has a legal obligation to secure the best price reasonably available as consideration for the conveyance of succession property. Succession of Lawson, 408 So.2d 992 (La. App.2d Cir.1981). The trial court correctly found that defendant breached his fiduciary duty when he sold succession property below market value.

Since the property has been sold and cannot be returned to the succession, defendant is liable for the difference in the market values at the time of the respective sales and the actual sale prices. Langendorf v. Administrators of Tulane Ed. Fund, 361 So.2d 905 (La.App. 4th Cir.1978), writ denied, 363 So.2d 1384 (La.1978), 364 So.2d 120 (La.1978). According to the testimony of the expert appraiser, the difference between the fair market values at the time of the sales and the actual sales prices was at least $6,000.00 and at the most $7,000.00. No expert testimony was offered to refute this testimony. The trial court awarded damages based upon the lowest figure offered by the expert. We find no error in such an award.

The money from the sale prices of these lots was placed in the attorney’s trust account, rather than in an administrator’s account. La.C.C.P. art. 3222 provides:

“A succession representative shall deposit all moneys collected by him as soon as received, in a bank account in his official capacity, in a state or national bank in this state, and shall not withdraw the deposits or any part thereof, except in accordance with law.
On failure to comply with the provisions of this article, the court may render a judgment against the succession representative and his surety in solido to the extent of twenty percent interest per an-num on the amount not deposited or withdrawn without authority, such sum to be paid to the succession. He may also be adjudged liable for all special damage suffered, and may be dismissed from office.”

In Succession of Hess, 205 So.2d 74 (La. App. 4th Cir.1967), writ denied, 251 La. 862, 206 So.2d 712 (1968), the court refused to impose penalties against an administrator when an attorney absconded with funds which the administrator had negligently entrusted to him. The imposition of penalties is no longer mandatory, but is discretionary. La.C.C.P. art. 3222; Succession of Dykes, 258 So.2d 606 (La.App. 1st Cir.1972), writ denied, 261 La. 533, 260 So.2d 319, and 261 La. 535, 260 So.2d 320 (1972). In the instant case, the funds received from the sales were deposited in the special account of an attorney. We find that this was a substantial compliance with the requirements of La.C.C.P. art. 3222, such that an imposition of penalties was not justified, and was an abuse of discretion.

For these reasons, there is judgment in favor of Audrey Hickerson, present admin-istratrix, and against Roscoe Irving, Sr., for $6,000.00, together with legal interest thereon from date of judicial demand, and all costs.

AFFIRMED, AS AMENDED.

      . Sandra and Charles P. Turner and Jerry Irving were originally defendants as well as Roscoe Irving. However, all but Roscoe Irving were voluntarily dismissed from the suit.


text:
    William Joseph RICHARD v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY.
    No. 82 CA 0983.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 7, 1983.
    Writ Denied Nov. 18,1983.

      Joel B. Dickinson, Baton Rouge, for plaintiff-appellant.
    Gerald Jeffers, Baton Rouge, for defendant-appellee.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

William Joseph Richard (plaintiff) filed suit against the State of Louisiana, through the Department of Public Safety (defendant) for damages allegedly resulting from a false arrest. The trial court found that plaintiff failed to prove his case and dismissed the suit. Plaintiff has appealed.

On March 13, 1981, plaintiff and his girlfriend were driving north on Highway 51 en route to the Jaycee Hall in Amite, where plaintiff was engaged to perform with the “Deja Vu” band in connection with the Oyster Festival. Plaintiff dropped a hairbrush or some other article which fell to the floor. When he looked down to pick it up, he lost control of his car. He stated that “[t]wo wheels of the car slipped off the road on the right side and when I tried to maintain control of the car it crossed the road and went into the ditch on the South bound side of the road.” Neither the plaintiff nor his passenger was hurt. A man who stopped to offer assistance gave them a ride to the Jaycee Hall. Upon arrival, the plaintiff went immediately to the bandstand and began playing music.

Plaintiff’s girlfriend testified that she reported the accident to Kimble Kelly Calmes, a weights and standards policeman who was hired by the band for security. He instructed her to report to Deputy Ronnie Sanders of the Tangipahoa Parish Sheriffs Office, who was present at the dance. Deputy Sanders was not on duty and was not in uniform. Deputy Sanders testified that the Sheriff’s Office did not have jurisdiction over the area where the accident occurred. However, Deputy Sanders told plaintiff that he need not return to the scene of the accident or go to the Sheriff’s Office. He suggested that plaintiff’s parents take plaintiff’s driver’s license to the investigating officer at the scene so that plaintiff could continue to play.

During a break, plaintiff discussed the accident with his parents, the band members, and with Deputy Sanders. Plaintiff’s parents and sister informed him that Trooper Harold Todd wanted to speak with him. Plaintiff did not attempt to contact Todd and continued to play. While plaintiff was performing, Todd and another trooper entered the Jaycee Hall from a rear entrance and signaled to plaintiff from the foot of the stage to follow them. Plaintiff was led outside by the two officers who handcuffed and searched him. He was arrested, issued two tickets, and taken to jail. Plaintiff was booked for failure to maintain control and for hit and run. He was released on his own recognizance.

Todd had been notified over the radio that a vehicle was off the road in a ditch and that the accident involved injuries. When he could find no one at the scene of the accident, he became concerned and searched the area for injured persons. When plaintiff’s sister came to the scene, Todd told her that he needed to talk to plaintiff in order to fill out his accident report. When plaintiff’s parents returned with his driver’s license, Todd informed them also that he needed to speak to plaintiff. Plaintiff’s parents told Todd that they would bring him to the Sheriff’s Office. Todd waited for about one hour, then called Troop L and informed them that he was going to make an arrest. Todd further testified that he had been instructed at the State Police Academy to interview the operator of a vehicle involved in an accident; that he was concerned about a possible drinking violation; that the arrest was very “low-keyed”; that plaintiff was not handcuffed or patted down until they were outside; and that he wrote two tickets, one for failure to maintain control and one for hit and run, which formed the basis for the arrest.

Records reflect that Todd only remained in the Jaycee Hall for about five minutes; that it took only five to ten minutes to take plaintiff to jail and that he was booked at 1:25 a.m. and released at 1:45 a.m.

False arrest occurs when one arrests another against his will without a warrant or other statutory authority. It is restraint without color of legal authority. Kyle v. City of New Orleans, 353 So.2d 969 (La.1977). Thus, if a police officer acts pursuant to statutory authority in arresting a citizen, he is not liable in damages for false arrest.

Louisiana Code of Criminal Procedure article 213(3) is the statutory authority for the arrest in the instant case. It provides that an officer may make a warrant-less arrest for an offense committed out of his presence if he has reasonable cause to believe that the person to be arrested has committed an offense. Reasonable cause exists when the facts and circumstances within the arresting officer’s knowledge, and as to which he has reasonably trustworthy information, are sufficient to warrant a prudent man in believing that the person to be arrested has committed or is committing an offense. State v. Phillips, 347 So.2d 206 (La.1977).

In the instant case, the arresting officer went to the scene of the accident and saw the overturned vehicle. He was informed by plaintiff’s parents and sister that plaintiff was the owner and operator of the vehicle, and that he had been operating the vehicle when it went into the ditch. Todd informed plaintiff’s relatives that he needed to speak to plaintiff, but plaintiff never attempted to contact him. Based on what Todd saw and what plaintiff’s relatives told him, he had probable cause to believe that plaintiff had committed the offense of failure to maintain control, in violation of La.R.S. 32:58. This statute provides:

“It shall be unlawful for the driver of any vehicle to negligently fail to maintain reasonable and proper control of said vehicle while operating the vehicle on the public roads of this state.”

Traffic regulations are penal in nature and violations of same are punishable by imprisonment and by fine. La.R.S. 32:57. The authority to arrest a person for a violation of a traffic regulation is based on La. R.S. 32:391. Moss v. Maryland Cas. Co., 392 So.2d 772 (La.App. 3rd Cir.1980).

The judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . The Department of Public Safety was sued as the employer of Harold Todd, the State Trooper who arrested plaintiff.

      . The tickets charged him with (1) violating La.R.S. 32:58, failure to maintain control, and (2) violating La.R.S. 14:100, hit and run.

      . Louisiana Code of Criminal Procedure article 933 provides that offense includes both a felony and a misdemeanor and that misdemeanor includes the violation of an ordinance providing a penal sanction. See also, State v. Hammett, 359 So.2d 126 (La.1978).

      . Since Todd had probable cause on the failure to maintain control offense, it is unnecessary to discuss the hit and run offense.


text:
    Arie Perry WILLIAMS v. Robert PERRY, et al.
    No. 82 CA 0984.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 7, 1983.
    Archie Perry, Baton Rouge, for plaintiff — in rule — appellant: Sam Wilson.
    Charles M. Reid, Schilling & Reid, Amite, for defendants — in rule — appellees: Arthur R. Hayden and Claudette S. Hayden.

      Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This matter comes before us on an appeal from a decree ordering the execution of a judgment for partition by licitation. One of the owners in indivisión, Sam Wilson, appealed. We reverse and remand.

On July 13, 1962, Arie Perry Williams filed suit for partition of 100 acres of land in Tangipahoa Parish, alleging she was the owner of an undivided Vio interest. An attorney was appointed to represent absent and unknown co-owners. Judgment was rendered on August 3, 1970, ordering that the partition be had by licitation. The record reveals that no further action took place in the proceeding after the rendition of the judgment of partition until January 29, 1982. On that date Arthur R. Hayden and Claudette S. Hayden, vendees of Arthur C. Hayden (one of the original defendants against whom the partition judgment was obtained), filed an ex parte motion to execute the partition judgment and to have the property sold at public auction by the Sheriff of Tangipahoa Parish. Also on this date, pursuant to the motion, the trial court ordered that the property be sold in accordance with law and appointed an attorney to represent absent and unknown defendants, and the same attorney was appointed as the notary public to effect the partition of the proceeds of the sale. The attorney appointed to represent absent and unknown co-owners attempted to give notice by causing an advertisement to be run in The News-Digest, Amite, Louisiana, on February 25, 1982.

An opposition to the execution of the partition judgment was filed on March 5, 1982, stating that no notice was given of the motion to execute the partition judgment, and that only the original plaintiff, Arie Perry Williams, could enforce the partition judgment and she had since died. Upon the filing of this opposition, a show cause order was issued by the trial court on March 15, 1982, which stayed the proceedings to sell the property. On March 31, 1982, the sole heirs of Arie Perry Williams filed a motion to dismiss the opposition, stating that as heirs of Arie Perry Williams they made no opposition to the execution of the partition judgment. In brief in support of the opposition, which had supposedly been filed by the “defendants”, but which was later narrowed to include only Sam Wilson et al, those opposing the execution of the partition judgment contended the judgment of partition had prescribed. The trial court rendered judgment on July 15, 1982, dismissing the opposition, and ordering that the property be sold. We set aside the order that the property be sold contained in the judgment of July 15,1982, and remand the case for further proceedings.

With respect to appellant’s first contention that the original partition judgment of August 3, 1970, had prescribed before Arthur R. Hayden and Claudette S. Hayden had moved for its execution on January 29, 1982, we see that only a money judgment is subject to the prescription of ten years. See LSA-C.C. art. 3547; Succession of Moody, 306 So.2d 869 (La.App. 1st Cir.1974), writ refused 310 So.2d 639 (La. 1975). As Moody states, a money judgment is such a judgment as would cause a judicial mortgage to attach, or as would entitle the party obtaining it to obtain a writ of fieri facias. A judgment of partition is obviously not such a judgment, and is not subject to ten years’ liberative prescription.

However, we hold that the judgment of July 15, 1982, ordering the execution of the partition judgment must be set aside, because sufficient notice was not given. A defendant in a partition judgment may obtain an order directing execution of the partition judgment, but to obtain such an order, he must proceed against the original plaintiff by rule to show cause, in order that the constitutional requirements of notice be met. Blunson v. Brocato, 187 La. 637, 175 So. 441 (1937); Rawley v. Rawley, 357 So.2d 286 (La.App. 1st Cir.1978), writ refused 357 So.2d 1154 (La.1978). In the present case, the Haydens have proceeded by ex parte motion and order, not rule to show cause. It is true that the heirs of the original plaintiff, Arie Perry Jackson Williams, have in effect waived their rights to object to failure to employ rule to show cause, having stated that they have no objection to the partition by licitation. However, Blunson and Rawley permit a defendant co-owner to enforce a partition judgment against the plaintiff co-owner because all co-owners are equally affected by the judgment, both plaintiffs and defendants. Thus, unlike the usual judgment, in a partition judgment there is no true judgment creditor and no true judgment debtor. All are affected alike. Therefore, just as notice must be given by a defendant seeking the enforcement of a partition judgment as to the plaintiff by rule to show cause, so must a defendant seeking to enforce a partition judgment proceed against all co-defendants by rule to show cause. Particularly is this the case where there are numerous co-defendants, and the original judgment of partition is quite old, as is the case here.

Accordingly, we set aside the judgment rendered in favor of Arthur R. Hayden and Claudette S. Hayden on July 15, 1982, ordering execution of the original partition judgment of August 3, 1970, and remand the matter to permit movers to proceed by rule to show cause with notice to all known parties not absentees, and notice to all absent and unknown co-owners through service upon an attorney ad hoc appointed to represent them.

VACATED AND REMANDED.


text:
    TARTAN TRANSPORT & CONSTRUCTION, LTD. v. Mr. & Mrs. Robert A. McDONALD.
    No. 82 CA 0994.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 7, 1983.
    Writ Denied Nov. 18,1983.
    Bruce Reed, New Orleans, for plaintiff, appellant.
    Matthew Chenevert, New Orleans, for defendant, appellee.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an eviction rule brought by Tartan Transportation & Construction, Ltd., the alleged owner of the premises, 129 Kimberly Drive, Mandeville, Louisiana, against Robert A. McDonald and Sharon Nolan McDonald, to obtain the eviction' of the Mc-Donalds from the home. The trial court refused to order Sharon Nolan McDonald evicted. Tartan appealed. We reverse.

Mrs. Sharon McDonald raised as a defense that she was the owner. It appears from the evidence adduced at trial on the rule that the McDonalds were having marital troubles, and that Mr. McDonald stated regularly that he was giving the premises in question to his wife to effect a reconciliation, with title to be placed in Tartan, a corporation, of which Mr. McDonald was president and principal or sole owner, for tax purposes only. The McDonalds thereafter separated, with Mrs. McDonald retaining occupancy of the house.

It is quite true, as Mrs. McDonald contends, that an eviction proceeding is not a proper or appropriate place to determine title, where the defendant has a semblance of title. See Foreman v. Luquette, 344 So.2d 1111 (La.App. 3d Cir.1977); Champagne v. Broussard, 401 So.2d 1060 (La.App. 3d Cir.1981), writ denied 409 So.2d 615 (La. 1981). Cf. Avoca, Inc. v. Singleton, 271 So.2d 630 (La.App. 1st Cir.1972). However, Mrs. McDonald has failed to show she has a semblance of title. Mrs. McDonald testified at trial on the rule that her husband had verbally given the property to her and placed title in Tartan for tax purposes. However, under LSA-C.C. art. 1536 a donation of immovables must be made by authentic act. An attempted verbal donation of immovable property is without legal effect. Alexander v. Bates, 192 So.2d 186 (La.App. 1st Cir.1966).

In pleadings, Mrs. McDonald alleges as an affirmative defense that Tartan was the alter ego of Mr. McDonald, and that his funds were commingled with those of Tartan. However, no evidence that this was the case was presented at trial of the eviction rule. Thus, Mrs. McDonald has failed to prove for purposes of the eviction proceeding that she possesses under a semblance of title.

Mrs. McDonald testified she made no payments on the house. Mr. McDonald, in an obviously self-serving document, stated in a letter to G.M. Smith, agent of Tartan, that he had agreed to make payments to Tartan (presumably as rent) in the sum of $1,000.00 per month, that he had made no payments, and that he was in default.

There are only two possible analyses of the factual situation presented. Tartan, which was shown to have purchased the property from Cassidy Construction Co., Inc., is lessor, and the McDonalds lessees, who are in default on their payments, in which case Tartan is entitled to eviction under LSA-C.C.P. art. 4701. Alternatively, Tartan is owner, and the McDonalds are occupants without semblance of title, in which case Tartan is entitled to eviction under LSA-C.C.P. art. 4702. We therefore hold the trial court erred in failing to order Mrs. McDonald evicted.

We therefore reverse the judgment of the trial court and render judgment evicting Sharon Nolan McDonald from the premises, 129 Kimberly Drive, Mandeville, Louisiana, forthwith, all costs to be paid by her.

REVERSED AND RENDERED.