text:
    Hermann MOYSE, III and Janet Doise Moyse v. The RUNNELS SCHOOL, INC.
    No. 83-CA-1003.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Thomas E. Balhoff, Baton Rouge, for plaintiffs-appellants.
    Joseph A. Perrault, Jr., Baton Rouge, for defendant-appellee.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

From a judgment dismissing their suit to recover prepaid tuition, plaintiffs appeal. We affirm.

In April 1982, Mr. and Mrs. Moyse registered their five-year-old son, David, in The Runnels School, and paid his 1982-83 tuition and fees in advance. On April 29, Mrs. Moyse signed an enrollment agreement which contained the following language:

I understand that this enrollment can be canceled by me with full refund of all fees and tuition submitted with this form if the program checked is not offered at the location indicated. Otherwise, I may cancel this enrollment for any reason before May 1, 1982, with refund of any prepaid tuition but with forfeiture of other fees. I understand that if this registration is not canceled before May 1, 1982, I am responsible for the full year’s tuition, except in the event of (a) catastrophic illness, (b) transfer from the greater Baton Rouge area, or (c) disen-rollment initiated by the school. Under any of these three circumstances tuition only will be prorated but other fees will be forfeited.

About three weeks before the beginning of the school term David was accepted by another school, and Mr. and Mrs. Moyse withdrew David from The Runnels School, preferring to send him to the other school. Since David never attended The Runnels School, Mr. and Mrs. Moyse asked Dr. Kelly Runnels, the president of the school, for a refund of the prepaid tuition and fees.

Dr. Runnels testified at trial that he told Mr. and Mrs. Moyse that if a replacement could be found for David, some kind of refund would be made. However, he also testified that he told the Moyses it would be difficult to find a replacement in such a short time, particularly since the school was then in the process of moving to a new location. According to Runnels, the money was not refunded because no replacement was found. The plaintiffs filed this suit to recover the money prepaid, claiming that the school had a duty to look for a replacement’ and that it did not do so.

Mr. and Mrs. Moyse do not contend that they were unaware of the school’s refund policy. Neither did Mrs. Moyse deny that she signed the agreement which contained the provision that tuition refunds would be made only under certain circumstances.

Legal agreements have the effect of law upon the parties, and courts must give legal effect to contracts, according to the true intent of the parties. The intent is to be determined from the words of the contract when they are clear, explicit, and lead to no absurd consequences. LSA-C.C. art. 1945; Texaco, Inc. v. Vermilion Parish School Board, 244 La. 408, 152 So.2d 541, 547-48 (1963); Blevins v. Manufacturers Record Publishing Co., 235 La. 708, 105 So.2d 392, 421 (1958) (on rehearing). The words of the contract could not be clearer. An enrollment could be canceled for any reason before May 1, 1982, and the party would receive a full refund of any prepaid tuition but forfeit other fees. Otherwise, however, the party is responsible for the full year’s tuition, except in three events: (1) catastrophic illness, (2) transfer from the greater Baton Rouge area, or (3) disen-rollment initiated by the school.

When parties have determined by the contract the amount of damages for breach of that contract, the creditor shall recover that sum. LSA-C.C. art. 1934. Mr. and Mrs. Moyse canceled their son’s enrollment at the school after May 1, 1982, and the cancellation was not for one of the three accepted reasons. They are therefore responsible for the full year’s tuition and fees.

A tuition refund policy was enforced in Guillot v. Spencer Business College, Inc., 267 So.2d 738 (La.App. 4th Cir.), cert. denied, 263 La. 986, 270 So.2d 122 (1972). After the school term began, plaintiff’s son voluntarily withdrew from the school to enlist in the armed forces. Plaintiff then sued to recover unearned tuition. By the terms of the refund policy agreed upon by the parties in the contract, the plaintiff was entitled to a refund of 55% of the cost of the total course. Because the school had refunded more than 55%, the court denied the plaintiff’s demand.

Plaintiffs contend, however, that the trial court erred by refusing to apply the doctrine of mitigation of damages. An injured party has the duty to mitigate his damages, Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823, 825 (1968), and the rule applies in both tort and breach of contract cases. Altazan v. Pontchartrain Dredging Corp., 385 So.2d 292, 293 (La.App. 1st Cir.1980). Nevertheless, we have found no authority for the application of the doctrine of mitigation of damages to defeat the plain terms of an otherwise enforceable agreement which provides for liquidated damages.

For the foregoing reasons, the judgment in favor of defendant is affirmed and all costs of this appeal are assessed against plaintiff appellant.

AFFIRMED.


source: Caselaw Access Project

author: SAVOIE, Judge. SHORTESS, Judge,

license: Public Domain

text:
    CONCRETE CONTROL DIVISION, INC. v. CEMENT PRODUCTS SERVICE, INC., et al.
    No. 83 CA 1013.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Dale H. Hayes, Leonard & Hayes, Morgan City, Counsel for plaintiff-appellee.
    James F. Abadie, Abadie & Hudson, Baton Rouge, for Cement Products Service.
    Russel J. Cremaldi, Bauer, Darnall, McNulty & Boudreaux, Morgan City, for Town of Patterson.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Cement Products Service, Inc. (defendant) was awarded a contract by the Town of Patterson, Louisiana, to handle “Project ‘M’ 13-1-80, Street Paving and Drainage Improvements, Williams Street, Patterson, Louisiana.” Defendant contracted with Concrete Control Division, Inc. (plaintiff) to have plaintiff supply the concrete for the job, which plaintiff did. However, some concrete did not meet the town’s specifications for 4,000 PSI concrete. The town exacted a penalty of $3,676.80 from its payment to defendant who thereupon refused to pay plaintiff for the concrete.

Plaintiff brought suit to recover $37,-325.06 for the concrete delivered to defendant. Defendant reconvened, claiming that the concrete delivered by plaintiff did not meet the strength requirements specified in their contract. Defendant alleged its business reputation had been damaged by the wrongful filing of a lien against defendant and the Town of Patterson, and prayed for $62,325.06 in damages.

The trial court orally rendered judgment for plaintiff for its entire demand plus attorney fees as per a clause printed in the concrete delivery receipts. It dismissed the defendant’s reconventional demand. Its pertinent reasons are as follows:

I am satisfied that the facts show that the material was sold and delivered at the agreed upon prices and that the evidence does not show that the quality of the material was other than as specified in the agreement between the parties, there being so many unaccounted for possibilities as to what could have caused the test results on those given days shown in PLAINTIFF’S EXHIBIT THREE to have been less than the 4000 pound per square inch figure. I think the law is clear that that burden falls upon the defendant to establish those causes and I do not find that that has been done.

The defendant appeals, specifying as error: (1) the trial court finding that the quality of the concrete was as specified as in the agreement between the parties, (2) the trial court finding that the defendant had the burden of proving why the concrete samples which were tested failed to measure 4,000 PSI, and (3) the award of attorney fees.

The plaintiff proved that it delivered concrete on open account by the introduction at trial of invoices compiled from the signed delivery receipts for the truckloads of concrete. L.L. Patterson, plaintiff’s president, testified and described the contract with defendant as oral, with no specific terms as to the PSI rating of the concrete. Patterson claimed that the usual course of business is for the buyer to provide a “mix design” to the supplier, which has been approved by the buyer’s engineer. Merlin Saltzman, defendant’s vice-president, agreed with Patterson’s testimony regarding the industry procedure but maintained that he and Patterson had agreed specifically for the plaintiff to furnish concrete that would meet the project’s specifications of 4,000 PSI.

During the early stages of construction, Saltzman advised Patterson that concrete was breaking. Patterson stopped concrete delivery until the problem was cleared up. He hired Louisiana Testing & Inspection, Inc. (La. Testing), who made an inspection on August 21, 1981. La. Testing recommended some changes in the mix but no change in the materials set forth in the original mix design. Defendant agreed to the recommendation and only then did plaintiff resume concrete delivery. Thereafter, on thirteen occasions from August 26 through November 21, 1981, plaintiff delivered concrete which failed the 4,000 PSI test. La. Testing had by this time become defendant’s on-the-site inspector. These failures formed the basis for the $3,676.80 penalty exacted by the Town of Patterson against defendant. All of plaintiff’s other shipments totalling hundreds of yards of concrete passed inspection.

Plaintiff has clearly shown that it was entitled to recover for the concrete it delivered to this job. In the present case, the project engineer prepared the plans and specifications for the project, which included a design mix for the concrete. He testified that in his opinion, this mix design in the past had supported 4,000 PSI. (Emphasis ours). He did not guarantee that it would support that specification. This mix design was given to defendant. Defendant, in turn, conveyed the required mix design to plaintiff. Therefore, the contract between defendant and plaintiff was not a contract to deliver 4000 PSI concrete. It was a contract to deliver concrete according to the mix design.

The trial court found that plaintiff delivered to defendant concrete which met the specifications of their agreement. Having so found, the trial court then placed upon the defendant the burden of showing the defect in this concrete. Defendant answered by stating that the concrete failed to meet the requirements of the contract between defendant and the Town of Patterson, i.e., 4000 PSI concrete. The plaintiff was not a party to the contract between defendant and the town. ' It cannot be bound by the terms of this contract. Defendants claim that the concrete was defective and that the defect was the fault of the plaintiff. The trial court found that the claim was not affirmatively proven. We find no manifest error in this holding.

Defendant appeals the trial court’s award of attorney fees which was made pursuant to a clause in the delivery receipts that were signed by defendant’s employees at the job site. The jurisprudence is clear that the signature of the employee is mere acknowledgment of the receipt of the goods, where there is no showing that the buyer knew or should have known that the invoices contained the attorney fees clause. Pooler Building Materials, Inc. v. Hogan, 244 So.2d 62 (La.App. 1st Cir.1971). Contractual provisions for attorney fees must be specifically agreed to by the parties. Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 437 So.2d 1196 (La.App. 5th Cir.1983), affd, 449 So.2d 1014 (La.1984). Since there is no evidence that the parties ever even discussed (much less reached an agreement upon) an attorney fee clause, we find this award to be in error and must reverse.

The judgment of the trial court is affirmed as to the award to plaintiff of $37,-325.06, together with judicial interest thereon at the rate of 1.5% per month from the due date of each invoice until paid. The attorney fees award is reversed. Costs of this appeal are assessed to defendant.

AFFIRMED IN PART, REVERSED IN PART.

SHORTESS, J., agrees in part & dissents in part with reasons.

SHORTESS, Judge,

concurring in part, dissenting in part.

I agree with that part of the opinion which reverses the award for attorney fees. I would also award defendant damages because in my opinion plaintiff did not supply concrete in accordance with its agreement on thirteen occasions. Defendant’s damages, i.e., the penalty assessed to it by the Town of Patterson, should be borne by plaintiff.

Accordingly, I respectfully concur in part and dissent in part.

      . The trial court’s award of this rate of interest was not appealed by defendant.


author: CRAIN, Judge. /s/ William D. Brown William D. Brown, Acting Chairman /s/ J. Cleveland Fruge, J. Cleveland Fruge, Member /s/ Robert L. Roland Robert L. Roland, Member

text:
    Cade D. WILLIAMS v. BOARD OF ETHICS FOR ELECTED OFFICIALS.
    No. 83 CA 1019.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Writ Denied Nov. 16, 1984.

      Joseph H. Simpson, Amite, for appellant.
    R. Gray Sexton, Peter G. Wright, Board of Ethics For Elected Officials, Baton Rouge, for appellee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

After a thorough review and evaluation of the record, we are convinced that the evidence supports the facts found and the reasons assigned by the Board of Ethics for Elected Officials which we hereby adopt.

Appellants’ position that he cannot be held to have violated the Code, because he did not intend to, has been decided adversely to him by the Louisiana Supreme Court in Glazer v. Commission On Ethics For Public Employees, 431 So.2d 752 (La.1983).

We affirm at appellant’s cost.

AFFIRMED.

OPINION OF THE BOARD OF ETHICS FOR ELECTED OFFICIALS

OPINION NO. 82-46

DATED: June 29, 1983.

FILED: June 29, 1983

RE: Investigation of alleged violation of the Code of Ethics by Cade Williams, Registrar of Voters (Tangipahoa Parish) Docket No. 82-46.

On February 17, 1983 the Board of Ethics for Elected Officials (the “Board”) conducted a public hearing, in the parish of Respondent’s domicile, for the purpose of exploring the following:

CHARGES
I.
That Cade Williams has violated Section 1112A of the Code of Governmental Ethics (LSA — R.S. 42:1112) by having personally called a June 29, 1982 Special Session of the Tangipahoa Parish Police Jury at which he expected the Police Jury to discuss the appointment of himself as the Registrar of Voters.
II.
That Cade Williams has violated Section 1112A of the Code of Governmental Ethics by having voted against a substitute motion to appoint Mrs. Sonja O. Lea as Registrar of Voters at the forementioned [sic.] June 29, 1982 Special Session of the Tangipahoa Parish Police Jury, which motion was a substitute motion to an original motion for the appointment of himself as Registrar of Voters.
III.
That Cade Williams has violated Section 1112A of the Code of Governmental Ethics by, at the forementioned [sic.] June 29, 1982 Special Session of the Tangipa-hoa Parish Police Jury, having voted for himself as the Registrar of Voters.
IV.
That Cade Williams has violated Section 1113A of the Code of Governmental Ethics (LSA-R.S. 42:1113A) by having accepted nomination to the position of Registrar of Voters for Tangipahoa Parish, which appointment was subject to the approval of the Tangipahoa Parish Police Jury, of which he was a member and the president, without first resigning from said police jury.

During the course of the public hearing conducted by the Board, the Board received into evidence in addition to other exhibits a joint stipulation to the following pertinent:

FACTS

A. Prior to July 3, 1982, Cade Williams served as a member and president of the Tangipahoa Parish Police Jury having been elected from District No. 1.

B. On June 29, 1982, Respondent called a special meeting of the Tangipahoa Parish Police Jury for the purpose of nominating a person to be appointed by the Governor as Registrar of Voters for the Parish of Tan-gipahoa in order to fill a vacancy to be created by the June 30, 1982 anticipated retirement of the then Registrar, Mrs. Theonne Kuykendall.

C. At the time this special meeting of the Police Jury was called by the Respondent, Respondent reasonably expected himself to be considered by the Police Jury for nomination to the position of Registrar of Voters.

D. A special meeting of the Tangipahoa Parish Police Jury was held on June 29, 1982.

E. At the meeting that the Police Jury held on June 29, 1982, the Jury received from Mrs. Theonne Kuykendall, Registrar of Voters, correspondence advising the Police Jury of her intention to resign as Registrar of Voters effective close of business June 30, 1982.

F. At the meeting on June 29, 1982, a motion was made by Juror Noto, seconded by Juror Giardina, that Respondent be appointed to the position of Registrar of Voters.

G. At the June 29, 1982 meeting of the Jury, a substitute motion was thereafter made by Juror Landry, seconded by Juror Cutrer, that Sonja Lea, an employee of the Registrar'of Voters’ Office, then serving as Chief Deputy, be appointed Registrar of Voters.

H. At the June 29, 1982 meeting of the Jury, a roll call vote was taken on the substitute motion by Juror Landry at which time Respondent voted “nay.”

I. At the June 29, 1982 meeting of the Jury, the motion of Noto passed with a recorded seven “yea” votes and three “nay” votes.

J. By correspondence dated June 29,1982, Respondent notified the Governor of the State of Louisiana that “effective on the receipt of [his] commission as Registrar of Voters for the Parish of Tangipahoa, ... [he] will resign as Police Juror, District # 1 of Tangipahoa Parish.”

K.By gubernatorial commission of July 3, 1982, Respondent was appointed Registrar of Voters for the Parish of Tangipahoa and thereafter reported to work effective July 5, 1982 and has served continuously as Registrar of Voters since that date.

OPINION

The controlling provisions of the Code are Sections 1112A and 1113A which provide respectively as follows:

“1112. Participation in certain transactions involving the governmental entity A. No public servant, except as provided in R.S. 42:1120, shall participate in a transaction in which he has a personal substantial economic interest of which he may be reasonably expected to know involving the governmental entity.”
1113. Prohibited contractual arrangements
A. No public servant, excluding any legislator and any appointed member of any board, or commission, member of such public servant’s immediate family, or legal entity in which he has a controlling interest shall bid on or enter into any contract, subcontract, or other transaction which is under the supervision or jurisdiction of the agency of such public servant.”

“Participate” as used in Section 1112A, above is defined at Section 1102(15) of the Code as follows:

“1102. Definitions
(15) ‘Participate’ means to take part in or to have or share responsibility for action of a governmental entity or a proceeding, personally, as a public servant of the governmental entity, through approval, disapproval, decision, recommendation, the rendering of advice, investigation, or the failure to act or perform a duty.”

“Substantial economic interest” as used in Section 1112A, above, is defined at Section 1102(21) of the Code as follows:

“1102. Definitions

(21) ‘Substantial economic interest’ means an economic interest which is of greater benefit to the public servant or other person than to a general class or group of persons, except:

(a) The interest that the public servant has in his position, office, rank, salary, per diem, or other matter arising solely from his public employment or office.
(b) The interest that a person has as a member of the general public.”

“Transaction” as used in Section 1113A of the Code, is defined at Section 1102(23) of the Code as follows:

“1102. Definitions
(23) ‘Transaction involving the governmental entity’ means any proceeding, application, submission, request for a ruling or other determination, contract, claim, case, or other such particular matter which the public servant or former public servant of the governmental entity in question knows or should know:
(a) Is, or will be, the subject of action by the governmental entity.
(b) Is one to which the governmental entity is or will be a party.
(c) Is one in which the governmental entity has a direct interest. A transaction involving the agency of a governmental entity shall have the same meaning with respect to the agency.”

The selection of a person to be nominated for appointment by the Governor to the position of Registrar of Voters for the Parish of Tangipahoa is a “transaction” involving the Jury.

Respondent, seeking to be appointed to the position of Registrar of Voters had a “substantial economic interest” in the Jury’s determination of who would be nominated for commission by the Governor to that position.

The events that occurred on June 29, 1982, in general and (1) Respondent’s calling of a special meeting for the purpose of selecting the nominee for appointment as Registrar of Voters, (2) the Respondent’s voting “nay” on the substitute motion by Landry and (3) Respondent voting “yea” on the initial motion by Noto constitute “participation” in the “transaction” defined as the process by which the Police Jury selected an individual for nomination to the Governor for commission as Registrar of Voters of Tangipahoa Parish.

It is therefore the opinion of the Board that Section 1112A of the Code was violated by Respondent’s prohibited “participation” in the events occurring on June 29, 1982.

Turning to the application of Section 1113A of the Code, it is equally clear to the Board that the process by which the Police Jury “nominates” for appointment by the Governor a person to the position of Registrar of Voters — a process in which “nomination equals appointment” — constitutes a “transaction which is under the supervision or jurisdiction of the [Tangipahoa Parish Police Jury]” as such term is used in this prohibition. Respondent, by his actions generally and by “accepting” the nomination of the Police Jury for appointment as Registrar of Voters in particular, “enter[ed] into ... [and was] interested in ...” this “transaction” which was under the supervision and jurisdiction of his agency. Thus, it is the opinion of the Board that Respondent violated Section 1113A of the Code.

Respondent, though not denying the occurrence of the controlling events in question, nevertheless advances defenses that (1) he was unaware of the provisions of the Code of Governmental Ethics, (2) he would not have entered into the proscribed transaction or engaged in the reprobated “participation” had the Office of the District Attorney for the Parish of Tangipahoa called to his attention the provisions of the Code, and (3) other similar transgressions by other members of the Tangipahoa Parish Police Jury have occurred in the past.

It is manifest to the Board that Respondent’s avowed ignorance of the provisions of the Code of Governmental Ethics is of no moment. Though there was no evidence introduced to the Board of any corruption on behalf of the Respondent, it was manifestly clear to the Board that the Respondent did, indeed, engage in a course of action clearly prohibited by salient sections of the Code. The standards contained in the Code abridged by the Respondent are objective rather than subjective. Glazer v. Commission on Ethics for Public Employees, 417 So.2d 456 (La.App. 1st Cir., 1982). Scienter is not a necessary ingredient to a codal violation. The Code, being a civil statute containing essentially mandatory standards for continued public service, is not a penal statute subject to strict construction but rather a civil and remedial statute containing only civil penalties designed to encourage compliance with the substantive provisions contained therein. Neither malice, evidence of corruption nor specific intent are required to be present in order to establish that provisions of the Code have been abridged. Rather, it is the existence of conduct proscribed by the Code coupled with the Respondent’s conscious desire to bring about the occurrence of those factual events that produces a breach of the substantive sections of the Code.

Evidence of actual corruption and the use of one’s public office for the production of private gain do, however, play a rolé in guiding the Board in application of the enforcement and penalties section of the Code contained in Subpart C thereof. Application of these provisions fundamentally serves the purpose of encouraging compliance with the prohibitory sections of the Code rather than as a vehicle to punish, seek retribution or vindication.

In the instant case, the absence of any evidence of actual corruption on th part of the Respondent or any effort by the Respondent to consciously and knowingly violate provisions of the Code, coupled with the consideration that the events leading to the violation are completely transitory in nature and unlikely to occur dictate that the Board impose only such civil sanctions as would tend to encourage the Respondent and other similarly situated elected officials to be mindful of the provisions of the Code and to avoid violation of the provisions contained therein.

Accordingly, it is:

ORDERED BY THE BOARD that pursuant to the provisions of Section 1153A of the Code Respondent be and he is hereby censured for having violated Sections 1112A and 1113A of the Code.

By order of the Board.

/s/ William D. Brown William D. Brown, Acting Chairman

/s/ J. Cleveland Fruge, J. Cleveland Fruge, Member

/s/ Robert L. Roland Robert L. Roland, Member

Board Member Brown concurs in the above opinion but assigns in addition thereto separate reasons and Board Member Duval dissents with reasons.


author: WATKINS, Judge.

text:
    Richard S. INGE v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, et al.
    No. 83 CA 1026.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Writ Granted Nov. 26, 1984.

      Jesse L. Wimberly, III, Mandeville, for plaintiff-appellant.
    E.B. Dittmer, II, Bogalusa, Donald S. Zuber, Baton Rouge, for defendant-appel-lee, St. Paul Fire and Marine Insurance Co.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

This is an action for alleged legal malpractice brought by Richard S. Inge against St. Paul Fire and Marine Insurance Company arising out of the rendering of an allegedly incorrect title opinion by the law firm of Pittman & Matheny, Hammond, Louisiana. Originally Gilsbar, Inc. was named defendant, but St. Paul was substituted as defendant by amended petition and Gilsbar discharged as a party defendant without prejudice. Pittman & Matheny was never named a party defendant, nor was any individual member of that firm so named. St. Paul filed an exception of prescription, which the trial court sustained. We hold that the exception of prescription was properly sustained, or that plaintiffs petition failed to assert a cause of action, we taking cognizance of an exception of no cause of action on our own motion. LSA-C.C.P. art. 927.

The petition alleges that on May 1, 1973, Pittman & Matheny delivered an incorrect title opinion to Richard S. Inge, petitioner, which led petitioner to buy the property in question thinking the title was valid and merchantable, which it was not. The contract to undertake the preparation of the title opinion entered into on or about May 1, 1973, had tactily or explicitly called for (to quote the language of Inge’s petition) “a title opinion insuring the title” (emphasis ours).

Inge filed suit against Gilsbar on October 24, 1979. St. Paul was named defendant by amended petition filed January 17, 1980.

A suit for legal malpractice, by analogy to medical malpractice, is an action in tort, in the great majority of cases. Cf. Sciacca v. Polizzi, 403 So.2d 728 (La.1981). The suit is in contract only if there is a guarantee or a warranty of a particular result by the attorney, Cherokee Restaurant, Inc., v. Pierson, 428 So.2d 995 (La.App. 1st Cir.1983), as (to quote Cherokee) “when an attorney expressly warrants a particular result, i.e., guarantees title to property....” We note that plaintiff Inge’s petition alleges that the law firm of Pittman & Matheny agreed to render a title opinion insuring title to the property. Thus, it would appear that the action is one in contract, rather than one in tort. However, if the action is in tort, the one year liberative period applicable to actions in tort clearly applies. LSA-C.C. art. 3536.

If the action is an action in contract, on the other hand, we are met with the well-established principle of law that the Direct Act Statute (LSA-R.S. 22:655) permits an action to be brought directly against the insurer only if the potential liability is in tort. There is no direct action for breach of a contractual obligation by the insured. Gray & Company, Inc. v. Ranger Insurance Company, 292 So.2d 829 (La.App. 1st Cir.1974); Champion v. Panel Era Mfg. Co., 410 So.2d 1230 (La.App.3d Cir.1982), writ denied 414 So.2d 389 (1982). Thus, as plaintiff pursues his action directly against the insurer, his action is subject to an exception of no cause of action, which we supply, if we assume for purposes of discussion that plaintiff’s action is contract. LSA-C.C.P. art. 927.

In summary, if plaintiff’s action is in tort, it is subject to the one year prescriptive period for actions in tort. LSA-C.C. art. 3492. If the action is in contract, plaintiff fails to assert a cause of action, as a direct action does not lie against an insurer in contract for breach of a contractual obligation of the insurer.

The judgment of the trial court is accordingly affirmed, at plaintiff’s cost.

Affirmed.

      . Wingate v. National Union Fire Ins. Co., 435 So.2d 594 (La.App. 3d Cir.1983), writ denied 440 So.2d 762 (1983), indicated an analogy to medical malpractice should not be drawn in legal malpractice suits, but that such a suit constituted both an action in contract and an action in tort.


author: COLE, Judge.

text:
    RONALD ADAMS, CONTRACTOR, INC. v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 83 CA 1031.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Michael H. Claudet, Houma, for plaintiff-appellee Ronald Adams, Contractor, Inc.
    Robert W. Stratton, Baton Rouge, for defendant-appellant La. Dept, of Transportation & Development.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The issue in this appeal is whether or not appellee, Ronald Adams, Contractor, Inc., (Adams) is entitled to additional compensation for work performed under a state contract. The trial court concluded it was. We affirm.

On October 3, 1978, Adams contracted with the State to perform certain site work on a construction project. His obligation involved both excavation work and the building of an embankment in place. The State’s proposal estimated the site work would involve the excavation of 10,204 cubic yards of dirt, while the building of the embankment would require 69,367 cubic yards of dirt. The contract provided the State was to pay a certain unit price for each cubic yard of dirt excavated and for each cubic yard used in the embankment.

Although the construction was completed in accordance with the original plans and specifications, the quantities of dirt involved in both the excavation work and the embankment in place were substantially less than the original proposals. This under-run (the difference between the proposed and actual quantities) was due to computation errors by the State’s consultant engineers. The under-run amounted to a 79.90% reduction from the proposed quantities in the excavation work and a 31.58% reduction in the embankment in place.

Adams contends this under-run constitutes an alteration which entitles it under the contract to be paid at a higher unit price than originally provided.

Section 90-03 of the contract provides for instances where there is a difference between the accepted quantities and the proposed quantities of work to be performed. Under this section the contractor is to be paid at the original contract price except as otherwise provided in Section 40 of the contract, the pertinent part of which is Section 40-02:

“40-02 ALTERATION OF WORK AND QUANTITIES. The owner reserves and shall have the right to make such alterations in the work as may be necessary or desirable to complete the work originally intended in an acceptable manner. Unless otherwise specified herein, the engineer shall be and is hereby authorized to make such alterations in the work as may increase or decrease the originally awarded contract quantities, provided that the aggregate of such alterations does not change the total contract cost or the total cost of any major contract item by more than 25 percent (total cost being based on the unit prices and estimated quantities in the awarded contract). Alterations which do not exceed the 25 percent limitation shall not invalidate the contract nor release the surety, and the contractor agrees to accept payment for such alterations as if the altered work had been a part of the original contract. These alterations which are for work within the general scope of the contract shall be covered by ‘Change Orders’ issued by the engineer. Change orders for altered work shall include extensions of contract time where, in the engineer’s opinion, such extensions are commensurate with the amount and difficulty of added work.
“Should the aggregate amount of altered work exceed the 25 percent limitation hereinbefore specified, such excess altered work shall be covered by supplemental agreement. If the owner and the contractor are unable to agree on a united adjustment for any contract item that requires a supplemental agreement, the owner reserves the right to terminate the contract with respect to the item and make other arrangements for its completion.”

The State maintains there has been no alteration in quantities within the meaning of Section 40-02 so as to entitle Adams to additional compensation. We disagree. Section 40-02 refers to alterations in the work to be performed under the contract, which we interpret to have a broader meaning than merely alterations in the plans or design as argued by the State. Technical terms in contracts are to be interpreted according to their accepted meaning within the field or industry in which they are used. See La.Civ.Code art. 1947. Two of plaintiff’s witnesses were accepted by the trial court as experts in construction terminology. Both considered the under-run occurring in the present case to constitute an alteration in the work. Although the chief engineer for the Department of Transportation disagreed, we note the State did not tender or qualify him as an expert in construction terminology. In any event, we find no error in the trial court’s conclusion that an alteration within the meaning of Section 40-02 occurred in the instant case.

In the alternative, the State argues Adams is entitled to additional compensation for only the portion of the alterations which exceed the 25% limitation provided in Section 40-02. They maintain under this argument Adams is entitled to additional compensation for the embankment in place for only 6.58% of the original proposed quantities, i.e., 31.58% reduction minus 25%. We reject this argument, agreeing instead with the trial court’s conclusion that once alterations in work exceed the 25% limitation provided in Section 40-02, a supplemental agreement must be made with respect to the aggregate. Contracts must be construed in such a way as to lead to logical conclusions and to give effect to the obvious intention of the parties. Lambert v. Maryland Cas. Co., 418 So.2d 553 (La.1982), rehearing denied 1982. Section 40-02 provides that “alterations which do not exceed the 25 percent limitation shall not invalidate the contract...”, implying that alterations which do exceed this limitation may invalidate it. The State in fact has the option of terminating the contract with respect to items involving such alterations if a supplemental agreement with the contractor cannot be reached.

These provisions were obviously made in recognition that an over-run or under-run exceeding 25 percent of the originally awarded quantities constitutes a substantial change in the contract and the basis upon which the parties entered into it.

The evidence establishes this was true in the present case. Adams indicated its unit price bid would have been much higher if it had known the actual quantities involved. The expert testimony clearly established a contractor’s cost per unit increases as the quantity of units decreases; the greater the reduction the sharper the increase in cost. Additionally, Adams was entitled under the contract to use the dirt it excavated from the construction site to build the embankment. Since the quantities actually excavated were substantially less than originally proposed, Adams had to purchase more dirt than anticipated for use in the embankment.

In view of these considerations and reading the contract as a whole, we do not believe it was the intent of the parties to give the State the option of terminating the contract, without giving the contractor the right to negotiate a new unit price for the total amount of alterations. In the very least, it must be said the phrase “such excess altered work,” found in Section 40-02, is not definitive as regards this issue. The meaning being unclear and ambiguous, it must be interpreted against the entity confecting the contract, i.e., the State. Accordingly, we affirm the trial court’s interpretation of this contract and the award made by it.

Adams filed an answer to the State’s appeal in which it requests amendment of the trial court’s judgment to allow legal interest from September 24, 1980 rather than from the date of judicial demand, as awarded.

Unless otherwise stipulated, contractual debts bear interest from the date upon which they become due. La.Civ.Code art. 1938. Adams claims the State’s debt for additional compensation became due on September 24, 1980, i.e., the date upon which the actual quantities of dirt involved in the performance of this contract were determined. However, while the quantities involved may have been determined on that date, the rate of compensation due for them was not. Despite a stipulation that Adams requested additional compensation, no evidence was presented to show a bill in a definite amount was ever presented to the State. Accordingly, Adams has not established interest should have commenced on September 24, 1980, since the amount of the debt was not ascertainable at that time. See Alexander v. Burroughs Corp. 359 So.2d 607 (La.1978); Binswanger Glass Company v. Taylor, 284 So.2d 367 (La.App. 2d Cir.1973). Therefore, we affirm the award of interest made by the trial court.

For the above reasons, the judgment of the trial court is affirmed in its entirety. The state is assessed costs of $868.25. La. R.S. 13:5112(A).

AFFIRMED.


text:
    Donna R. HILL v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, OFFICE OF MENTAL HEALTH AND SUBSTANCE ABUSE. (Two cases.)
    Nos. 83 CA 1043, 83 CA 1044.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Anthony R. Crouse and Fred Enman, Loyola University, School of Law and Clinical Education, New Orleans, for appellant.
    Joanne Henig, Staff Atty., Dept, of Health & Human Resources, Baton Rouge, for appellee.
    Robert B. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The primary issues in this Civil Service Commission appeal are whether or not the appellant abandoned her position and the timeliness of her appeal from an unsatisfactory service rating.

On December 31, 1980 Donna R. Hill, appellant herein, was employed by the Department of Health and Human Resources as a Clerk-Typist III. On that date she allegedly injured her back while at work when she slipped on a paperclip. She did not return to work from that date until her termination on April 3, 1981.

During the initial period of her absence Ms. Hill utilized her accumulated sick and annual leave, which was exhausted on January 21, 1981. Thereafter she was authorized to take leave without pay until February 23, 1981. At the expiration of this period, she was granted an extension of leave without pay until March 2, 1981.

Throughout this period the appointing authority repeatedly advised Ms. Hill that medical verification of both her condition and the approximate date of her return was necessary in order to grant her further leave. Ms. Hill furnished a medical certificate dated January 20, 1981 which stated she was under treatment for disc disease, with a minimal disability of two weeks. At the expiration of this two week period Mr. Lewis, Ms. Hill’s immediate supervisor, informed her by phone an additional medical report was necessary to authorize further leave. Ms. Hill testified a second medical certificate dated February 16,, 1981 was mailed to the appointing authority. Although this certificate stated Ms. Hill could return to work after a visit in two weeks, she claims she was unable to return at that time. In any event, her supervisors deny ever receiving this medical certificate. Mr. Lewis testified he spoke to Ms. Hill again regarding this matter on February 23, March 2, 5, 17, and 23. Additionally, she was sent a letter during the week of February 23 stressing the absolute necessity of a medical report. Nevertheless, the appointing authority did not receive any further medical reports prior to Ms. Hill’s termination, although a medical report dated April 11, 1981 was received subsequently.

Since Ms. Hill failed to either return to work upon the expiration of her approved leave or obtain an extension, she was absent without authorized leave and on April 3, 1981 was terminated on this basis. The appointing authority considered Ms. Hill’s conduct to constitute an abandonment of her position within the meaning of Civil Service Commission Rules 1.1 and 11.27(e). Additionally, by letter dated May 20, 1981 the appointing authority assigned Ms. Hill an unsatisfactory service rating for the preceding period because of her removal for cause.

Ms. Hill filed appeals with the Civil Service Commission from both the unsatisfactory service rating and her dismissal. At the hearing on this matter the appointing authority made an oral motion for summary disposition of the service rating appeal. This motion was taken under advisement by the hearing referee and ultimately granted by the Civil Service Commission. The Commission’s opinion also affirmed Ms. Hill’s termination.

Legal cause for disciplinary action against a permanent, classified civil service employee exists whenever that employee’s conduct is detrimental to the efficient and orderly operation of the public service for which he was employed. See Thornton v. DHHR, 394 So.2d 1269 (La.App. 1st Cir.1981). The appointing authority bears the burden of proving such conduct by a preponderance of the evidence, which means the evidence, as a whole, must show the fact sought to be proven is more probable than not. To constitute a preponderance, the evidence must be of a greater weight or more convincing than that offered in opposition thereto. Thornton, supra; Jones v. Dept. of Health & Human Resources, 430 So.2d 1203 (La.App. 1st Cir.1983).

Civil Service Commission Rule 1.1 defines “abandonment of position” as the desertion of a classified employee’s position. Additionally, Rule 11.27(e) provides that an employee who “...fails to report for.. .duty.. .on the first working day following the expiration of his approved leave of absence without pay...shall be considered as having deserted his position and shall be removed in accordance with the provisions of Chapter 12 of these Rules.”

It is undisputed Ms. Hill failed to report for duty on the first working day following the expiration of her approved leave. Thus, her actions clearly fall within the conduct proscribed by Rule 11.27(e). However, Ms. Hill argues she did not abandon her position because her absence was involuntary due to physical disability. This argument is without merit. First, we note Ms. Hill never provided adequate medical verification of her disability for the period of her unauthorized absence. Even if we assume the appointing authority received both the January 20 and February 16 medical certificates, these certificates excused Ms. Hill’s absence only until March 3. The medical report dated April 11, 1981 and received after Ms. Hill’s termination merely outlines the history of her treatment for a lumbar sprain and does not indicate she was unable to work throughout this period. Second, even if she was unable to work, it was still incumbent upon Ms. Hill to supply the appointing authority with the information needed to consider an extension of her leave without pay. Since she neither returned to work nor obtained a leave extension, she effectively abandoned her position within the meaning of the Commission’s rules.

Ms. Hill also argues she did not in fact abandon her position because her failure to obtain the medical report necessary for a leave extension was beyond her control. She testified she repeatedly requested a medical report from her doctor and he indicated one would be sent. Additionally, she alleges Mr. Lewis refused to help her obtain a medical report by telephoning her doctor as she requested. Mr. Lewis denies any recollection of Ms. Hill making such a request to him.

We find Ms. Hill’s difficulty in obtaining a medical report from her doctor an inadequate excuse for her failure to supply the required medical information. Ms. Hill was aware of the absolute necessity for medical verification of her disability and of the approximate date of her return. She knew further leave could not be granted without this information. She also knew from conversations with her supervisor that they had not received this information. When it became apparent she would be unable to obtain the necessary verification from her present doctor, she should have taken other steps to protect her position. For instance, she could have consulted with another doctor in order to procure a medical report.

We conclude the appointing authority acted reasonably under the circumstances present. Regardless of the reasons for the failure to supply a medical report, the appointing authority lacked sufficient information to evaluate the status of Ms. Hill’s position. Since it had no indication of the length of her absence, it was unable to make adequate provisions for carrying out her duties during this period. This undoubtedly impaired the efficient operation of the public service. The appointing authority allowed Ms. Hill a period of approximately two months to supply the necessary medical information. At some point it was necessary to end the uncertainty and make arrangements for filling Ms. Hill’s position. Every reasonable effort had been made to accommodate her. She was granted two periods of leave without pay despite her failure to furnish the required medical documentation. The supervisor spoke to her on numerous occasions, always reminding her of the necessity for a medical report. In spite of all this, she was not terminated until she was absent without leave for a month.

Additionally, the refusal of Ms. Hill’s supervisor to personally telephone her doctor would not have been improper. It is the employee’s responsibility to obtain medical verification of illness or disability. See Civil Service Commission Rule 11.14. To require the appointing authority to actively participate in obtaining medical information as suggested by Ms. Hill would place an undue burden upon it.

Lastly, Ms. Hill argues the Commission erred in summarily dismissing the appeal from her unsatisfactory service rating. The Commission based this dismissal on Rule 10.4(a) which provides an appeal from an unsatisfactory service rating should first be made to the appointing authority. Ms. Hill failed to comply with this rule, having appealed her rating directly to the Commission. On appeal she maintains the Commission erred in ignoring subsection (d) of Rule 10 which provides nothing therein shall prevent an employee against whom Chapter 12 action (Disciplinary Actions & Separations) has been taken from appealing directly to the Commission.

The Commission’s opinion does not refer to subsection (d) of Rule 10. Rather than ignoring this provision, however, it is more probable the Commission simply interpreted it differently than Ms. Hill. Subsection (d) does not specify whether it is the Chapter 12 action or the service rating which can be appealed directly to the Commission. When read together with Subsection (a) it could reasonably be interpreted to mean that even when action authorized under Chapter 12 is based on the same facts as the unsatisfactory rating, the Chapter 12 action can still be appealed directly to the Commission. It should be noted that an administrative agency may interpret its own rules and such interpretations become part of the rules. Department of Corrections v. Cage, 418 So.2d 3 (La.App. 1st Cir.1982), writ denied, 422 So.2d 164 (1982); McNeely v. Dept. of Health & Human Resources, 413 So.2d 594 (La.App. 1st Cir.1982), writ denied, 415 So.2d 949 (1982). In any event, upon review of the record we find an adequate basis for upholding this unsatisfactory rating based upon the same grounds as Ms. Hill’s termination.

For these reasons, we affirm the decision of the Civil Service Commission. Appellant is cast for all costs of this appeal.

AFFIRMED.

      . Assignments of error numbers two and four were not briefed by appellant and thus are considered abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.


author: CARTER, Judge.

text:
    Lester Arcard ESCO v. Henry SMITH, et al.
    No. 83 CA 1055.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Writ Granted Dec. 7, 1984.
    Michael H. Ellis, Metairie, Julian R. Mur-ry, Jr., New Orleans, for plaintiff and appellant.
    Wood Brown III, New Orleans, for defendants and appellees, Henry Smith, Fre-min Smith, Aubrey G. “Bill” Bass, J. Michael Dixon, C. Randall Dixon.
    Robert J. Jones, John W. King, Baton Rouge, for Dept, of Transp. and Development.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

Plaintiff appeals from an adverse judgment dismissing his suit for personal injuries incurred as a result of electrical shock he received while employed as a carpenter at the construction site of the Prospect Street Bridge over the Intracoastal Waterway in Houma, Louisiana.

On appeal, plaintiff contends that the trial court erred in finding that plaintiff was contributorily negligent, in failing to find that the executive officers of Fremin-Smith Services, Inc. breached their duty to provide plaintiff with a safe work place, and in not addressing the issue of damages.

We have reviewed the entire record, including the trial judge’s written reasons, a copy of which is attached hereto as Appendix A, and conclude that the factual findings and conclusions of law made by the trial judge are not manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Therefore, we affirm the judgment of the trial court at plaintiffs costs.

AFFIRMED.

APPENDIX A

32ND JUDICIAL DISTRICT COURT PARISH OF TERREBONNE STATE OF LOUISIANA No. 50676

REASONS FOR JUDGMENT

This matter was tried on its merits 24th through 27th days of January, 1983;

PRESENT WERE:

Lester Arcard Esco, the plaintiff, and his attorney, Michael H. Ellis, Esquire, of the firm of Murray, Murray, Ellis, Bra-den and Landry;

Henry Smith, Freeman Smith, Aubrey G. “Bill” Bass, J. Michael Dixon and C. Randall Dixon, defendants and executive officers and/or employees of plaintiff's employer, Fremin-Smith Services, Inc., and their attorney, Wood Brown, III, Esquire, of the firm of Montgomery, Barnett, Brown and Read;

State of Louisiana, Department of Transportation and Development, defendant, and its attorney, Robert J. Jones, Esquire;

Louisiana Power and Light Company, defendant, and its attorney, J. Wayne Anderson, Esquire; and United States Fire Insurance Company, defendant and intervenor, previously erroneously referred to in pleadings as Crum and Forster Insurance Company, and its attorney, Wood Brown, III, Esquire.

Prior to trial, other defendants, Universal Iron Works, D. and G. Rentals and Sales, Inc., Luby Guidry d/b/a Houma Shipbuilders, Inc., and Houma Shipbuilders, Inc., were dismissed from this litigation. After trial, and on their respective motions, the State of Louisiana and Louisiana Power and Light were also dismissed from this case.

The fact situation involved herein is neither complex nor unusual. The case arises out of an incident which occurred on May 28, 1976 on the site of construction of the Prospect Street Bridge over the Intraeoas-tal Waterway. Plaintiff was an employee of Fremin-Smith Services, Inc., which company was insured by United States Fire Insurance Company. Defendants, Henry Smith, J. Michael Dixon and C. Randall Dixon were executive officers of or held supervisory positions with Fremin-Smith Services, Inc. The central event involved occurred while a crane, or cherry-picker, was being utilized to move a tool-filled barrel from one point to another at the job site. The crane operator was Aubrey G. “Bill” Bass. Plaintiff and another employee of Fremin-Smith, Edward “Junior” Brockington, held the barrel, or lines attached to it, while the crane picked it up and moved it.

Overhead, was a high voltage electrical transmission line owned by Louisiana Power and Light. The line remained energized during the entire sequence of events as, apparently, no request was made to L.P. & L. to de-energize these lines.

The events which transpired are not seriously in dispute. Bass sat in the cab of the crane and operated the controls. Plaintiff and Brockington were outside, holding the load and were, in fact, touching it or lines attached to it during the activity. Although the title of “signalman” was not formally bestowed upon him, the court finds that plaintiff was in fact functioning as the signalman during the operation. The signalman is charged with directing the operation and observing the progress of the load from point to point. It is his responsibility to, as is implied by the name, “signal” the operator of the crane as to his movements of the boom and, ultimately, the load held by the crane. The operator, due to a covering over the cab, is not in a position to observe the upper reaches of the crane and Mr. Bass was not able to observe the upper most reaches of the crane during the operation in question herein.

At some point during the movement of the load, the highest end of the crane came into contact with the electrical transmission line. Power surged through the entire unit. Brockington was knocked away, dazed but not injured, and Bass was not affected because the cab is insulated. Plaintiff suffered a severe electrical shock, burns, and other injuries for which he seeks recovery herein. '

The case arose prior to the adoption of comparitive negligence and, as such, requires a consideration of the existence of contributory negligence, assumption of the risk, or victim fault on the part of the plaintiff. While it is sometimes considered more legally correct to ascertain primary negligence first, the court feels that the proper legal result herein will naturally flow from this consideration being made initially.

“Working near electrical power lines is neither contributory negligence per se nor assumption of the risk.” Hebert v. Gulf State Utilities Company, 426 So.2d 111 (La.1983). As cited in Hebert, the question is enunciated in Dyson v. Gulf Modular Corporation, 338 So.2d 1385 at 1390 (La.1976) which asks whether, “the party’s conduct conform(ed) to the standard of care that would be exercised by a reasonable man; or did the conduct breach a duty imposed upon the party to protect against the particular risk from which the accident resulted?”

In Williams v. New Orleans Public Service Inc., 421 So.2d 278 (La.App. 4th Cir.1982), plaintiff was killed while installing, with the help of neighbors, a C.B. antenna in his backyard in close proximity to a NOPSI high voltage feeder line. The court there found the plaintiffs to be barred from recovery as a result of what was termed “their own fault no matter how that fault is measured, i.e., contributory negligence or assumption of the risk”, id. at 280-281. The question of Civil Code Article 2317 strict liability was also considered therein.

The nature of extent of victim fault that is sufficient to overcome strict liability, has evolved in a dynamic process in recent jurisprudence. See, Loescher v. Parr, 324 So.2d 441 (La.1975); and Dorry V. LaFleur, 399 So.2d 559 (La.1981). Essentially, the court in Dorry contrasts actual from constructive knowledge of a hazard in determining whether a plaintiff’s actions were reasonable within the context of a given set of facts.

Dorry limits assumption of the risk to cases where the plaintiff had actual knowledge of a hazard in which 2317 strict liability is imposed. Stated therein, “there are some risks that every man must be held to appreciate... There is a plain difference, however, between what one must have known (a finding of actual knowledge) and what one should have known (the imposition of an objective standard of care).” (Emphasis by the court).

The court, in Williams, cites the often used language in Cates v. Beaurregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976):

“Electric wires on a pole are an announcement of danger to almost anyone smart enough and old enough to get himself in contact with a wire 28 feet above the ground.”

In that case, a 16 year old climbed a power pole and cut a wire, incorrectly and unfortunately assuming that it was not live. This conduct was held to bar his right to recovery.

In Dyson v. Gulf Modular Corporation, supra, an accident similar to the instant case, resulted in the death of the plaintiff. The question of greatest importance therein was whether the boom of the crane touched the high power line or whether the electricity “arced” from the line to the crane which was in close proximity. In that case, Dyson simply held a line from the crane taut while another employee was attempting to attach a bridle connected to the line to a piece of equipment which was to be moved by the crane. Dyson did not exercise any control over the movement of the crane and was only directly concerned, at the time of the accident, with the connection of the line to the equipment. Here, Esco was actually directing, as signalman, the movement of the crane itself and the court finds that factor a distinguishing point between this case and Dyson.

In Tirante v. Gulf States Utilities Company, 412 So.2d 128 (La.App. 1st Cir.1982) writ denied, 414 So.2d 389 (1982), there was no witness to plaintiff’s accident, and the plaintiff himself could supply no factual recollection of the events. Plaintiff’s neck came into contact with the high power line when he, apparently, stood up on a pipe on top of a cooling tower where he was servicing a valve. The trial court granted a directed verdict having found that such strong proof of contributory negligence and victim fault was established, that reasonable men could not arrive at a verdict in favor of plaintiff. The appellate court, construing the evidence in a light most favorable to plaintiff, found that the evidence did not justify such a conclusion.

Essentially, Tirante had to have been standing on the pipe on top of the tower to have raised his neck (in light of his 5'10" height) to a level of 6'4V4", the level of the electrical line. Although warned of the danger, Tirante’s knowledge at the time of that danger was tempered by his understanding that he had to stand on the pipe to service the valve. He operated under the assumption that there was no other place he could stand to accomplish his job related task. Although there was a walkway of some sort on top of the tower, or other surface which could apparently have been safely used as a standing point to service the valve, Tirante was not aware of its existence or potential use. The court, reasoning that in the light of the knowledge he held he took the only available route known to him for the completion of his job mandated task, that his proximity to the line was not voluntary or unnecessary. In essence, this failed to meet the standard of a voluntary and unnecessary exposure to a known danger sufficient to be considered assumption of the risk in bar to a right of recovery in a strict liability situation.

A similar necessity faced the plaintiff in Hebert v. Gulf States Utilities Company, supra. This most recent pronouncement of our Supreme Court involves a factual activity quite different from that of Lester Esco. There, plaintiff attempted to manipulate, from an unsteady perch atop a girder, a long and unwieldy metal angle iron. He had to work in what proved to be close quarters, and once he commenced the movement of the iron, he was unable to control its movement sufficiently to prevent contact with the wire. Significantly, there had been an incident without injury four days earlier and power company investigators had viewed the scene and were fully aware of potential future danger over the remainder of the project. The court took great pain to describe in detail, at page 113, the tricky nature of the maneuver and gives there the distinct impression that once the operation began, and without any fault on the part of Hebert, the movement of the metal bar in any direction was possible insofar as result was concerned.

Essentially, Hebert had no choice but to do what he was doing, and once his activity began there was an even chance that he would come in contact with the electrical line. Unfortunately, this lack of options on his part apparently removed his activities from the ambit of assumption of the risk in the opinion of the Supreme Court.

In the case at bar, the court finds none of these factors present. At all times, Lester Esco was in a position to avoid the accident by the exercise of only the slightest degree of care. He, as well as all others on the job site, was aware of the existence of the lines, and as stated by the court in Cates, their very presence must have signaled danger to him. This court can assume that Esco had actual knowledge of the danger. Esco exercised a certain degree of control over the situation that is significantly absent from all those cases cited herein wherein assumption of the risk or victim fault was not found to be present. To paraphrase the 4th Circuit in Williams, supra, no matter what it is called, there is victim fault here sufficient to bar plaintiffs right to recover and a judgment in accordance with these reasons is rendered separately.

Houma, Louisiana, this 21st day of April, 1983.

/s/ Ashby W. Pettigrew, Jr. ASHBY W. PETTIGREW, JR., JUDGE


author: LOTTINGER, Judge.

text:
    Dudley J. GRIFFIN v. Earline L. GRIFFIN.
    No. 83 CA 1057.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Stanley L. Perry, Galliano, for Dudley J. Griffin.
    George Ledet, Jr., Cut Off, for Earline L. Griffin.
    Before GROVER L. COVINGTON, LOT-TINGER and PONDER, JJ.
   LOTTINGER, Judge.

The defendant-in-rule, Dudley J. Griffin, appeals a permanent alimony award of $300.00 per month to his former wife, plaintiff-in-rule, Earline L. Griffin, on the ground that he is unemployed and the alimony award exceeds the maximum allowable under La.Civ.Code art. 160.

Dudley Griffin had been previously employed on a work boat, but the boat at the time of the hearing on the rule was not working, thus Dudley Griffin was unemployed. Mr. Griffin testified that he looked for work but could find none. However, he also testified that he did not apply for unemployment compensation. The evidence reveals that Mr. Griffin and his second wife operate a barroom-lounge, but Mr. Griffin stated that this business was losing money.

The trial judge apparently found significant that Mr. Griffin did not apply for unemployment when he could have and that he was buying items which he could not afford, such as a car for his 17 year old daughter.

Social security is treatable as a source of income. Robinson v. Robinson, 412 So.2d 633 (La.App. 2d Cir.1982). We believe unemployment compensation should be similarly treated.

We do not find that the trial judge has abused the much discretion vested in him in fixing the alimony award, and therefore affirm at appellant’s costs.

AFFIRMED.


author: GROVER L. COVINGTON, Judge. LOTTINGER, Judge,

text:
    STATE of Louisiana v. Daniel HART.
    No. 83 KA 1064.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Oct. 31, 1984.
    Dixie Brown, Asst. Dist. Atty., Houma, for State of La.
    Joseph G. Kopfler, Houma, for Daniel Hart, defendant.
    Before GROVER L. COVINGTON, LOT-TINGER and PONDER, JJ.
   GROVER L. COVINGTON, Judge.

Defendant, Daniel Hart, was indicted for manslaughter in violation of LSA-R.S. 14:31. Defendant entered a ,plea of not guilty. After trial by jury, defendant was found guilty and sentenced to 15 years at hard labor. He has appealed from his conviction and sentence.

Primarily, defendant argues that his conviction should be reversed because the state failed to satisfy its burden of proof beyond a reasonable doubt that the homicide was not committed in self-defense.

LSA-R.S. 14:20 reads in pertinent part as follows:

A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger ....

The state has the entire and affirmative burden of proving beyond a reasonable doubt that a homicide was not perpetrated in self-defense. State v. Lynch, 436 So.2d 567 (La.1983). The defendant who raises the issue of self-defense does not assume any burden of proof whatsoever on that issue. State v. Savoy, 418 So.2d 547 (La.1982).

The relevant inquiry on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Lynch.

To prove its case against Hart, the State presented as witnesses the following persons: first, the mother of the victim identified the victim from a photograph showing him dead on the game room floor. Next, the chief investigator of the coroner’s office testified that Reid was dead when he arrived and he proceeded to remove the bullet by an incision in the back of the victim, although the investigator was not a medical doctor. The pathologist then testified as to the cause of death, which was a “gunshot wound to the chest.”

The state then placed on the stand two friends who were with the victim on the evening of the homicide. They testified to drinking beer at a nearby bar throughout the evening, and to going back and forth between the game room and the bar during the evening. Neither of the friends admitted to seeing the actual shooting, although they were in the game room and heard the shot. They said they were at the pinball machines, but not playing them at the moment. They told of Reid spitting tobacco juice on the floor as he played the games, and his ignoring of the requests and warnings by the managers (cashiers) not to do so, and of Reid being told to stop his conduct or leave the premises. They said there was an argument (which they could not hear so as to understand the words) between Reid and Hart. They denied that all three or four of them advanced on Hart in a threatening manner just before the shooting. They did not explain the whereabouts of the other friend at this time. Although there were several other persons in the game room (who are not identified in the record), they were not called by the state. Three of the police then testified to the scene when they arrived shortly after the shooting, and to the arrest of Hart. They retrieved the weapon. The ballistics test on the bullet removed by the investigator from the body of the victim was “inconclusive.” The state later recalled one of the victim’s friends, Terry Studder, in rebuttal. His testimony was not actually in rebuttal of the evidence of the defense but concerned the presence of the friend (who did not testify) at the time of the shooting, because Studder had not mentioned the friend in his direct testimony. In its argument the state contended that the shooting by Hart was done in anger, and that it was not justifiable because Hart had several alternatives to shooting Reid, such as retreating from the scene.

The defendant took the stand and testified to the shooting being in self-defense in that the victim and one or more of his friends came at him (defendant) in a threatening manner, and threatened to kill him. To some extent the defendant’s testimony was supported by a patron of the game room (who appears to have been a friend of the defendant), but who also did not see the actual shooting. The defendant’s wife corroborated the defense position as to the aggressive conduct of Reid.

The record establishes that Mr. and Mrs. Daniel Hart worked as managers or cashiers in and were to some extent in charge of a game room in Houma, Terrebonne Parish, Louisiana, during the evening hours of October 16, 1981. On the date in question, Scott Reid and a number of his friends patronized the game room to play the electronic games and shoot pool. During the course of the evening Reid and friends would come into the game room, play a few games and then go to a nearby bar. This activity continued for several hours, during which time Reid and friends consumed a considerable amount of beer and played a number of the electronic games (or shot pool), dividing their time as suited their pleasure between drinking and playing games. For some unexplained reason, when Reid first came in the game room, he deliberately spit tobacco juice on the floor. Mrs. Hart, who was working alone at the time, requested Reid clean up the tobacco juice, or leave the premises. At that time, Reid and friends left the game room and went to the bar, where they drank beer. They then returned to the game room and played the games again. Reid continued to spit tobacco juice on the floor in disregard of Mrs. Hart’s request to him. As the evening progressed, with more games played and more beer drunk, Reid became increasingly aggressive, continuing to spit tobacco juice on the floor and banging on the electronic games, despite warnings not to do so.

When Hart got off work from his other job, he joined his wife in the game room and they had supper there together. Previously, the defendant had called his wife and asked her if she wanted him to come in. She had answered in the affirmative, and told him of the rowdy conduct and name-calling of the victim and his friends. Reid and friends continued to make their rounds of the bar and the game room. Mrs. Hart, after again explaining to her husband the trouble she had had with Reid, got off work for the night and went home.

Reid as well as his friends, continued to drink beer throughout the evening. Reid continued to spit tobacco juice on the floor. He also taunted, cursed and argued with Hart over the course of the evening. Reid also increased his banging and abusing of the electronic games despite repeated warnings to discontinue such conduct. The animosity between Reid and Hart increased as Reid became more abusive.

At about 10:00 p.m., Reid began threatening Hart and challenging him to come outside the game room. He then advanced on Hart who was behind the counter at the time, and threatened to kick out Hart’s brains. Hart testified that Reid and two friends advanced on him in a threatening and menacing manner, although this was denied by the friends at the trial. Hart pulled a .357 magnum revolver from under the counter, cocked it, set it on the counter, and warned Reid to stop. When Reid continued to advance, the gun fired, striking Reid in the chest and killing him instantly. Defendant stated that the gun went off, that he intended merely to keep Reid “at bay long enough for me to call the police.” To prevent Reid’s friends from further advance toward him, he recoeked the gun. Hart remained at the scene, holding the gun until the police arrived. He was then placed under arrest for the homicide of Scott Reid.

Our analysis of the state’s evidence convinces us that the defendant’s guilt has not been proven. Here, the evidence presented by the state fails to prove that Hart did not commit the homicide in self-defense. State v. Savoy.

For the reasons assigned, the judgment of conviction and sentence of Daniel Hart are hereby set aside and annulled, and a judgment of acquittal is entered in his behalf.

CONVICTION AND SENTENCE SET ASIDE AND ANNULLED, JUDGMENT OF ACQUITTAL ENTERED.

LOTTINGER, J., dissents and assigns written reasons.

LOTTINGER, Judge,

dissenting.

I respectfully dissent.

This decision turns on a question of credibility, and the jury chose to believe the version of the state’s witnesses rather than that of the defendant and his witnesses.

In State v. Henry, 457 So.2d 1244 No. KA 84 0187 on the Docket of this Court, we stated:

When reviewing the sufficiency of evidence to support a conviction, the proper standard is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Allen, 442 So.2d 737 (La.App. 1st Cir.1983). Where there is conflicting testimony as to factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, this is a matter of the weight of the evidence, not of its sufficiency. State v. Johnson, 446 So.2d 1371 (La.App. 1st Cir.1984); State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 La.1983). A determination of the weight of the evidence is a question of fact of which this court has no appellate jurisdiction in criminal cases. La. Const, art. V § 10(B). State v. Norman, 448 So.2d 246 (La.App. 1st Cir.1984). Thus, a determination of the weight of the evidence rests solely in the sound discretion of the trier of fact and is not reviewable on appeal.

Therefore, I respectfully dissent.

      . Defendant's other assignments of error are pretermitted.


author: PONDER, Judge.

text:
    SUCCESSION OF Joseph A. MINACAPELLI, Jr.
    No. 83 CA 1071.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Thomas Caruso, Slidell, for Joseph A. Minacapelli Sr., appellánt.
    Elaine W. Guillot, Slidell, for Gloria C. Minacapelli.
    Before COVINGTON, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Joseph A. Minacapelli, Sr., father of the decedent, appealed the trial court’s judgment dismissing his opposition to an application for appointment as administratrix filed on behalf of Gloria C. Minacapelli, appellee, surviving but judicially separated spouse of the decedent.

The issues are:

(1)was opposition to appellant’s application for appointment timely filed;

(2) did appellee timely file petition for appointment and timely give notice thereof;

(3) did court comply with C.C.P. art. 3094 by giving 11 days between notice of application and hearing;

(4) should court allow preference to a judicially separated spouse; and

(5) was there any evidence of appellee being a legal representative of an heir.

Appellant was appointed as provisional administrator. He filed a petition for notice of application for appointment of administrator and on June 11, 1982, appellee filed a petition for appointment as adminis-tratrix. However, appellee’s petition was evidently not acted upon. Appellant filed an opposition to appellee’s petition. On the day the hearing was scheduled, appellant requested that he be appointed as administrator because no opposition had been filed. Instead, the court continued the matter. During the interim, appellee filed another petition to be appointed administratrix in order to cure the earlier deficiency. At the hearing, both parties stipulated that neither of them were disqualified under La.C. C.P. art. 3097, appellee was judicially separated from the decedent and appellant was a creditor of the decedent at the time of his death. The trial court ordered that appel-lee be appointed and/or confirmed as ad-ministratrix of the succession and dismissed appellant’s opposition.

Appellant’s first argument is that the trial court erred by not appointing him as administrator because there was no opposition timely filed as of the date of the originally scheduled hearing. He contends the petition filed by appellee after the continuance was granted should be disregarded because appellee should not be allowed advantage by such a capricious use of a continuance. Appellant relies on La.C.C.P. art. 3096 which provides, in part:

“At the hearing on the application for appointment as administrator, if no opposition thereto has been filed, the court shall appoint the applicant, unless he is disqualified under Article 3097.”

We find that appellee filed her opposition timely. Appellee’s latter petition was filed before the hearing occurred on April 20, 1983. The appellant has not shown that the court acted capriciously in granting the continuance to that day. The trial judge has wide discretion in acting upon a motion for continuance under La.C.C.P. art. 1601. His ruling will not be disturbed on appeal in the absence of a clear showing of an abuse of that discretion. Sauce v. Bussell, 298 So.2d 832 (La.1974); Bryer Insurance Agency, Inc. v. Bruno, 261 La. 177, 259 So.2d 55 (1972).

Appellant’s next argument is that appel-lee did not timely file her petition for appointment and since he properly filed a petition for notice of application under La. C.C.P. art. 3091, appellee was required to mail or deliver to appellant a copy of appel-lee’s application for appointment under La. C.C.P. art. 3093.

We find that the application was timely filed as shown by the record.

. However, appellee failed to comply with these codal requirements and appellant contends that this failure should have prevented the court from appointing appellee as administratrix.

We decline to hold invalid appellee’s appointment as administrator solely because appellee did not properly notify appellant. “The purpose of the notice provisions is to give interested persons a voice in the selection of the administrator.” Succession of Revere, 393 So.2d 153 (La.App. 1st Cir.1980). In light of these facts, we find that appellee’s failure to give notice does not invalidate her appointment. The codal articles concerning notice serve as directives for the courts and are not mandatory. See Succession of Koch, 379 So.2d 1080 (La.1980); Succession of Revere, supra.

Although appellee’s latter pleadings were filed only a day before the hearing, appellant was not without sufficient notice. Appellant was aware of the application that appellee filed on June 11, 1982, and its defects, and appellant filed an opposition in response to appellee’s application.

Appellant has waived any objection he had to the court’s failure to give eleven days between notice of application and hearing by failure to make timely objection; instead he entered into stipulation as to the facts in the case.

Appellant’s next argument is that the trial court erred in appointing appellee as administratrix because she was not entitled to priority of appointment under La.C.C.P. art. 3098. Appellant contends that since appellee was judicially separated from the decedent at the time of his death, she does not fall within the category of “surviving spouse.” Appellant reasons that the inclusion of the “surviving spouse” in the first priority group is based upon the usual close relationship between spouses in their personal and business affairs and that this factor is not present once a judicial separation has taken place. In support of his argument, appellant points to several code articles that exclude the judicially separated spouse from certain inheritance rights.

We disagree. The mere fact that the legislature has specifically excluded the judicially separated spouse in only some of the code articles supports the contrary argument that the legislature intended to include the judicially separated spouse within the first priority group under La.C.C.P. art. 3098. Therefore, since appellee falls within the first priority group as “surviving spouse” and appellant falls within the third priority group as a “creditors] of the deceased”, the court is required to give preference to appellee. The priority of appointment set out in La.C.C.P. art. 3098 is mandatory and binding upon the trial court. Succession of Thibaut, 224 So.2d 852 (La.App. 1st Cir.1969).

Our finding above that appellee is entitled to priority as a surviving spouse obviates the necessity of considering appellant’s argument that the court gave priority to appellee as a legal representative of an heir despite no evidence.

For the above reasons, the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . La.C.C.P. art. 3091:
      An interested person desiring to be notified of the filing of an application for appointment as administrator, at any time after the death of the deceased, may petition the court in which the succession has been opened, or may be opened, for such notice.
      A petition for such notice shall comply with Article 3092, shall bear the number and caption of the succession proceeding, and shall be docketed and filed by the clerk in the record thereof.
      When a petition for such notice has been filed within ten days of the death of the deceased, or prior to the application for appointment as administrator, the applicant for appointment shall serve the notice prayed for, as provided in Article 3093.

      . La.C.C.P. art. 3093:
      When notice has been petitioned for as provided in Article 3091, the applicant for appointment as administrator shall mail or deliver to the person designated to receive such notice a copy of his application for appointment, and shall notify him of the date and hour assigned by the court for a hearing thereon.

      .La.C.C.P. art. 3098:
      When the appointment as administrator or dative testamentary executor is claimed by more than one qualified person, except as otherwise provided by law, preference in the appointment shall be given by the court in the following order to:
      (1) The best qualified among the surviving spouse, competent heirs or legatees, or the legal representatives of any incompetent heirs or legatees of the deceased;
      (2) The best qualified of the nominees of the surviving spouse, of the competent heirs or legatees, or of the legal representatives of any incompetent heirs or legatees of the deceased; and
      (3) The best qualified of the creditors of the deceased. "Best qualified,” as used in this article, means the claimant best qualified personally, and by training and experience, to administer the succession.

      . La.C.C. arts. 880, 889, 890, 894.


author: CRAIN, Judge.

text:
    AMOCO PRODUCTION COMPANY v. Mildred CARRUTH, et al.
    No. 83 CA 1075.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Marc Shachat, New Orleans, for plaintiff-appellee Amoco Production Co.
    Sumpter B. Davis, III, Baton Rouge, for intervenor-appellee A.L. Hernden & Associates.
    Philip K. Jones, Jr., New Orleans, for defendant-appellee Martin Exploration Co.
    Gerald A. Bosworth, and Robert B. Butler, Houma, for defendant-appellant Fred A. Blanche, III.
    R.L. Landreneau, and Peter Carmichael, Baton Rouge, for defendants.-appellees Oil & Marine Corp. of La. and J. Burton Leblanc.
    Bernard J. Caillouet, New Orleans, for defendant-appellee Exxon Corp.
    Fredrick R. Tulley, Baton Rouge, for defendant-appellee P. Raymond Lamonica as Trustee of the Bankruptcy Est. of Roger Leblanc.
    Jack C. Caldwell, Franklin, for defendants-appellees Jack Caldwell, Tom Lee Horne, Jr., John E. Coleman, Jr., David M. Ellison, Jr., & Andrew J.S. Jumonvill.
    John De Giulio, Baton Rouge, and Michael 0. Hesse, St. Francisville, for defendants-appellees S.L.E. Inc., Empire Land Corp., and Future Revenues Inc.
    John M. McCollam, New Orleans, for defendant-appellee Mildred Carruth.
    Gregory A. Pletsch, Baton Rouge, for defendant-appellee R. Roy Rabalais.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

This is an appeal by defendant, Fred A. Blanche, III, from a judgment by the trial court dismissing defendant’s reconventional demand in a concursus proceeding instituted by Amoco Production Company (Amoco).

FACTS

The present concursus proceeding was instituted by Amoco in September of 1982 for a determination as to which of the named defendants own either mineral rights, royalty rights, or a working interest in production attributable to a certain tract of land located in East Baton Rouge Parish (Carruth Tract). By this proceeding, Amoco sought to deposit all proceeds from production attributable to the Carruth Tract into the registry of the court and thereby be relieved of any and all liability to the named defendants for such proceeds.

Several of the defendants instituted discovery directed to Amoco seeking to determine the actual deductible costs of the well and appropriate amounts of royalty proceeds which were owed to the legal owners. After Amoco had answered certain interrogatories and produced various documents, defendant, Fred A. Blanche, III, filed a reconventional demand alleging that he is the owner of a mineral lease covering 50% of the Carruth Tract and accordingly owns 50% of the mineral production attributable to that tract, subject to a lease royalty in favor of his lessor, defendant Mildred Carruth. He further alleges that the amount of money which Amoco received from the sale of production attributable to the Carruth Tract, after deducting such costs as Amoco is entitled to deduct for the cost of drilling and producing the well, greatly exceeds the amount of money deposited into the registry of the court by Amoco. He specifically alleges that Amoco has deposited only $1,306,932.93 into the registry of the court, whereas the total realized from the sale of production amounts to at least $14,306,932.93. He contends that even after deduction of costs for drilling and production, he is entitled to a judgment against Amoco in the amount of $8,000,000.00 plus interest and costs.

TRIAL COURT

The trial judge raised an exception of no cause of action to the reconventional demand on his own motion and signed a judgment on July 25, 1983, dismissing the re-conventional demand. It is from this judgment that defendant Blanche appeals.

APPEAL

On appeal, defendant raises the following two assignments of error:

1. The trial court erred in holding that the reconventional demand of Fred A. Blanche, III, failed to state a cause of action.
2. If the trial court was correct in raising and sustaining the exception of no cause of action, which is denied, then the trial court erred in failing to inform plaintiff in reconvention of the grounds for sustaining the exception and in not affording him the opportunity to remove such grounds by amendment.

NO CAUSE OF ACTION

The question of whether reconventional demands are prohibited in concursus proceedings remains unanswered in the jurisprudence. See Waguespack Pratt, Inc. v. de Salvo, 225 So.2d 269 (La.App. 4th Cir.1969), writ refused, 254 La. 846, 227 So.2d 592 (1969). Although we do not have the benefit of his reasons for judgment in this case, the trial judge apparently felt that the reconventional demand in this particular concursus proceeding was improper, and he therefore raised and maintained an exception of no cause of action in the suit.

An exception of no cause of action raises the issue of whether the law grants a remedy to anyone for the particular harm alleged by the plaintiff. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir.1979). It is a peremptory exception which may be pled or noticed by the trial court on its own motion at any time prior to submission of the case for a decision. La.C.C.P. art. 927, Rosenthal v. Caballero, 309 So.2d 797 (La.App. 4th Cir.1975).

Blanche’s reconventional demand is one based upon allegations that Blanche owns certain mineral production, that Amoco has obtained it, sold it and kept a large part of the proceeds, retaining more as costs than it was entitled to receive. Accepting Blanche’s well-pleaded facts as true, such allegations set forth a cause of action under a theory of unjust enrichment and quasi-contract and the trial court therefore erred in sustaining an exception of no cause of action to the reconventional demand.

IMPROPER CUMULATION OF ACTIONS

The exception questioning the defendant’s use of a reconventional demand for sums of money in addition to those deposited by plaintiff in the concursus presents, technically, a question of improper cumulation of actions, that is, the recon-ventional demand with the concursus. La.C.C.P. art. 926, Texas Gas Transmission Corporation v. Gagnard, 223 So.2d 233 (La.App. 3rd Cir.1969). This objection is not properly raised by the peremptory exception of no cause of action, but by the dilatory exception of improper cumulation of actions. Texas Gas Transmission Corporation, 223 So.2d at 237. Whether this exception can be raised by the trial court on its own motion, or can at this time be raised by Amoco is not before us.

DECREE

Accordingly, for the reasons assigned, we reverse the judgment of the trial court sustaining an exception of no cause of action, dismissing defendant Blanche’s recon-ventional demand, and remand this case for further proceedings consistent with our opinion herein. All costs of this appeal are to be paid by the plaintiff.

REVERSED AND REMANDED.


text:
    Carl Edward SULLIVAN v. David Wayne ST. CYR, et al.
    No. 83 CA 1077.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Writ Denied Nov. 26, 1984.
    Gordon W. Matheny and Joseph A. Sims, Jr., Hammond, for plaintiff-appellant.
    James E. Moore, R. Michael Caldwell, Baton Rouge, for defendants-appellees.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

This is an action for personal injury brought by Carl Edward Sullivan against David Wayne St. Cyr and his insurer, Metropolitan Property and Liability Insurance Company, arising from an accident in which a truck driven by St. Cyr struck Sullivan, a pedestrian. A jury found St. Cyr not to have been negligent, and rendered judgment for defendant. Sullivan has appealed, contending the instructions to the jury were erroneous, and that St. Cyr was in fact negligent.

At about 9:30 p.m. on January 4, 1982, Sullivan, who counsel for plaintiff admits was drunk or mentally impaired, was walking in an easterly direction down the center of the right lane of traffic on U.S. Highway 190 in the outskirts of Walker, Louisiana, on a dark night, when he was struck by a truck driven by St. Cyr traveling in an easterly direction in the right lane of traffic. Mr. Sullivan sustained severe injuries.

At the time of the accident, Sullivan was dressed in a white shirt, blue denim pants and a blue denim vest. His back was toward the truck. St. Cyr applied the brakes to his vehicle immediately after seeing Sullivan on the highway, and the St. Cyr vehicle skidded more than 100 feet before striking Sullivan. The speed limit was 55 m.p.h. and St. Cyr testified he was driving 55 m.p.h. The section was partly residential and partly commercial, with rather dim lighting from parking lots at business establishments. It was not raining, and the highway was not wet.

The trial court instructed the jury that if it found Sullivan contributorily negligent in any percentage, it should note that percentage in its responses to questions propounded to the jury, and reduce the amount of recovery accordingly. The jury found Sullivan 100% negligent, and rendered judgment for defendants.

Sullivan contends the instruction to the jury was incorrect in indicating that contributory negligence in the form of comparative negligence constitutes a defense in a suit brought by a pedestrian against a motorist. Plaintiffs contention has merit. The decision of the Louisiana Supreme Court in Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978) held that contributory negligence could not be used as a defense by a motorist in a suit by a pedestrian struck while crossing a cross-walk. This circuit has made clear that contributory negligence is abolished as a defense by Baumgartner in suits by pedestrians against motorists, even should the pedestrian enter an open highway where there was no cross-walk. See Young v. Wayde, 383 So.2d 1283 (La.App. 1st Cir.1980). Thus, it was incorrect for the trial judge to indicate in rather lengthy instructions to the jury on the subject of contributory negligence that contributory negligence constituted a defense in a suit in which a motorist had struck a pedestrian.

However, the proper course if the jury receives incorrect instructions is not to remand for a new trial, but for us to decide the case on the record as made up, assuming the record is clear. Baumgartner, supra, clearly declares that although contributory negligence of the pedestrian is not a defense, “a motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault.” (356 So.2d 400, 406) Thus, a motorist must be shown to have been at fault before judgment can be rendered against him.

Here, there is no showing of fault or negligence on the part of St. Cyr. He had consumed four beers at least two hours before the accident. However, his blood alcohol level did not indicate he was intoxicated, and St. Cyr administered CPR to Sullivan immediately after the accident, which shows he had considerable presence of mind. He was driving the speed limit, 55 m.p.h., and there was no showing that conditions on the highway required a slower speed. He was driving with his low-beam headlights on, but he was entering the community of Walker and it is not customary to drive with bright lights in town. Also, a motorist who narrowly missed striking Sullivan, Minnie Lee Pickett, and who preceded St. Cyr by several minutes traveling in the same direction on the same highway, stated there was traffic traveling in the opposite direction. Counsel for Sullivan seeks to find negligence in the fact that Ms. Pickett did not strike Sullivan while St. Cyr did. However, when Ms. Pickett saw Sullivan, Sullivan was within 1V2 feet of the center line, while St. Cyr saw Sullivan walking down the center of the right lane. Furthermore, Ms. Pickett had slowed to 35 m.p.h., to turn into Pendarvis Lane, while St. Cyr was traveling the speed limit with the intention of going on farther. The dark clothing worn by Sullivan, and the darkness of the night caused the accident, not any fault on the part of St. Cyr.

Thus, while the instructions to the jury were incorrect, the result below was correct as St. Cyr was not at fault. Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.