text:
    STATE of Louisiana, Appellee, In the Interest of Jerromi DeVoe CASON, Appellant.
    No. 15612-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Joseph D. Toups, Jr., Mansfield, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, James Lynn Davis, Dist. Atty., Many, Dennis G. Stewart, Mansfield, Abbott J. Reeves, Asst. Dist. Attys., Gretna, for appellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   HALL, Judge.

The 14-year-old juvenile appeals his adjudication of delinquency based upon a charge of simple burglary in violation of LSA-R.S. 14:62, contending that it rests upon insufficient evidence. The appellant’s contention is clearly correct and accordingly we reverse the adjudication of delinquency, set aside the judgment of disposition and commitment, and enter judgment dismissing the petition for delinquency and discharging the appellant.

By petition filed on August 27, 1982 appellant was charged with being a delinquent child in that he committed simple burglary of Marie Carter’s residence located in Logansport, Louisiana, on or about August 16, 1982. On February 1, 1983, after several continuances, an adjudicatory hearing was held in which appellant was found guilty of the commission of simple burglary and was adjudicated a delinquent. A judgment of disposition was signed and filed ordering appellant committed to the custody of the department of corrections for placement in a juvenile institution for a period of time not to exceed his 21st birthday. This timely appeal followed.

Appellant contends that the record contains insufficient proof that the alleged burglary actually occurred and was perpetrated by appellant. The contention is correct. There is absolutely no competent evidence that a burglary was committed.

Marie Carter, whose home was allegedly burglarized, did not testify. A Logansport police officer testified that a “theft” of $180 in $20 bills was reported by Marie Carter and that another officer did the initial investigation. The testifying officer completed the investigation the next day and arrested the appellant. One of appellant’s friends who lives next door to Marie Carter testified that appellant came by his house the day of the alleged burglary. Another young friend of the appellant testified he went to the store with appellant the day after the alleged burglary, and that appellant gave him $100 in $20 bills to buy a tape player. He said appellant told him he had $160 and that his grandmother gave it to him. Appellant’s grandmother testified that she frequently gave appellant $40 or $50 but could not remember if she had given him any money about the time of the burglary and that it would be unusual for him to have as much as $160. This was the sum total of the state’s case.

Appellant admitted being next door to Marie Carter’s home on the day of the alleged burglary, but denied going into her house or taking any money. He denied having a large sum of money the next day and testified that his friend stole the tape player from a store while appellant was at another store.

In a delinquency proceeding the state’s burden of proof is the same as in a criminal proceeding against an adult. State in Interest of Racine, 433 So.2d 243 (La.App. 1st Cir.1983); State in Interest of Pigott, 413 So.2d 659 (La.App. 1st Cir.1982). The state is required to prove beyond a reasonable doubt every element of the offense alleged in the petition. LSA-C.J.P. Art. 73; State in Interest of Pigott, supra. Where the state relies on circumstantial evidence, the evidence must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438; State v. Anderson, 417 So.2d 518 (La.App. 5th Cir.1982).

In the instant proceeding charging the juvenile with the offense of simple burglary in violation of LSA-R.S. 14:62, it was incumbent upon the state to prove each element of the offense as charged, that is, the unauthorized entering of a dwelling with the intent to commit a theft therein.

The due process standard of appellate review established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), applies to juvenile delinquency cases. State in Interest of Racine, supra; State in Interest of Pigott, supra. Accordingly, in a juvenile delinquency case the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Graham, 422 So.2d 123 (La.1982).

Further, in a juvenile delinquency proceeding the appellate court is constitutionally mandated to review the law and the facts. Article 5, § 10(B), Louisiana Constitution. Accordingly, under the standard of appellate review in civil cases enunciated in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the appellate court must determine, after a review of the entire record evidence, whether the findings of the trial court are clearly wrong or manifestly erroneous. In Interest of Thomas, 395 So.2d 912 (La.App. 2d Cir.1981). See also State in Interest of Williams, 421 So.2d 431 (La.App. 1st Cir.1982). Review of the law and facts under the Arceneaux standard is, perhaps, a somewhat broader scope of appellate review than that mandated by the Jackson v. Virginia standard.

The state’s evidence does not satisfy the requirement that the state prove beyond a reasonable doubt the essential elements of the charged offense. Neither an unauthorized entry by appellant nor the requisite intent is established by the evidence presented in this case. The police officer’s testimony concerning the reported theft does little or nothing to establish that the alleged burglary in fact occurred. The owner of the dwelling did not testify, nor did anyone else with personal knowledge that an unauthorized entry or theft took place.

At best, the evidence presented establishes only that appellant was in possession of what was for him an unusually large amount of money. There is no evidence that this money, or any money, was stolen from Mrs. Carter’s residence. Assuming every fact that the evidence tends to prove, the evidence does not support a reasonable inference of guilt, much less an exclusion of every reasonable hypothesis of innocence. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have concluded that the state proved the essential elements of the crime beyond a reasonable doubt. A review of the entire evidence leads to the conclusion that the findings of the trial court are clearly wrong and manifestly erroneous.

Since the evidence is insufficient to prove the commission of the offense of simple burglary, or attempted simple burglary which is the only legislatively authorized responsive verdict, the adjudication of delinquency must be reversed, the disposition and commitment vacated, the petition dismissed, and the juvenile discharged; and it is so ordered.

Adjudication reversed; disposition and commitment vacated; petition dismissed; and discharge ordered.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Warren L. NEALY v. GREAT AMERICAN TRANSPORTATION CORPORATION.
    No. 82-CA-1005.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Hobart 0. Pardue, Jr., Springfield, for plaintiff.
    Charles W. Wilson, III, Baton Rouge, for defendant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Defendant, Great American Transportation Corporation (GATX), appeals a judgment awarding plaintiff, Warren L. Nealy, $183.00 in weekly workers compensation for temporary total disability, penalties and attorney fees. Plaintiff has neither answered defendant’s appeal nor perfected an independent appeal.

Defendant argues that the trial court committed manifest error (1) in finding that plaintiff proved the occurrence of a compensable accident, (2) in awarding benefits from the date of the alleged accident rather than from the date of the manifested disability, and (3) in awarding penalties and attorney fees. We affirm the compensation award and reverse the award of penalties and attorney fees.

On December 31, 1981, Nealy was working for GATX in Good Hope, Louisiana, as a manual laborer in a tank reconstruction project. He and the other members of the crew — J.W. Davis, foreman, Robin Davis, pusher, Bobby Sykes, another laborer, and an unidentified tractor operator — were loading a freshly cut bottom of an old tank onto a truck with a boom and a tractor. The boom malfunctioned briefly, and Nealy, Sykes and Robin Davis climbed up onto the tractor to repair it. The day was cold, and a misting rain had muddied the ground around the truck and made the tractor slippery. After repairing the boom, Nealy jumped from the tractor, allegedly slipped and fell into the mud and allegedly twisted his knee.

Nealy finished work that day and returned after the New Year’s holiday for two more days’ work on the 5th and 6th of January, 1982. He did not work for GATX again until February 1, 1982. During the three-week interim, he was “loaned out” to another job in St. James Parish. That work lasted about four days — the precise dates of this job are unclear. He was laid off for the rest of January. Nealy worked the full first week in February and the following Monday, the 8th. He stopped working after the 8th and was unemployed as of the date of trial.

Nealy consulted Dr. Gadeaux, a general practitioner, some three weeks after the alleged accident — again, the precise date of the meeting is unclear. Dr. Gadeaux referred him to Dr. Neil J. Maki, an orthopedic specialist with whom he consulted on February 12 after receiving written permission from his foreman, J.W. Davis.

Dr. Maki’s examination revealed a tear to the midjoint of plaintiff’s left knee. Nealy was hospitalized on February 23 and underwent surgery on the 24th. He was rehospi-talized on March 5th due to minor complications and released March 11th. His rehabilitation proceeded without mishap except for a fall on May 16th, which caused a minor setback. According to Dr. Maki’s progress report, dated June 29, 1982, plaintiff was able to return to work “on an as tolerated basis,” subject to further examination by his treating physician.

Trial took place on July 29, 1982. Without assigning reasons or making specific findings of facts, the trial court rendered judgment in favor of plaintiff as set out above, the award to continue until plaintiff can return to work. Implicit in the judgment, however, is the finding that plaintiff suffered temporary total disability from a work-related accident. Whether plaintiff carried his burden of proving the occurrence of this accident is the primary issue on appeal.

Our constitutional authority to review findings of fact is limited by the standard of manifest error enunciated in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We cannot disturb a finding of fact when based upon a reasonable evaluation of credible evidence, sufficient to support a finding of the fact in issue, unless the record as a whole establishes that the finding is clearly wrong. Consequently, if Nealy’s proof of a compensable accident consists of sufficient and reasonably credible evidence, we cannot reverse the trial court’s finding absent manifest error.

Plaintiff’s proof that an accident occurred on December 31,1981, consisted solely of his own eyewitness testimony, corroborated by the testimonies of his wife, Debra, and his brother-in-law, Ed Ward. Nealy testified that he slipped or fell off the tractor and twisted his knee in the mud. He could not say with certainty that any member of the crew actually saw him fall. He testified that he did not report the fall immediately, but claimed that he told his foreman Davis about the fall later when Davis noticed him limping. He further claimed to have mentioned the incident to Ed Ward and Robin Davis later that day. He further testified that he did not ask to fill out an accident report because he didn’t think the injury to be that serious at the time. Finally, he testified that he continued to work until laid off, because he needed the money.

Ed Ward and Debra Nealy corroborated Nealy’s testimony. Debra testified that she applied ointments and salves to plaintiff’s knee when he returned home from work that day. Ed Ward testified that he noticed something was wrong with Nealy’s leg when he picked him up from work that afternoon. He testified that Nealy told him that he had been injured on the job. He further testified that he and Nealy usually did not bother with formal reports of which they considered to be only minor injuries.

Defendant’s proof that no accident occurred consisted of the testimonies of the foreman, J.W. Davis, the pusher, Robin Davis, and fellow laborer Bobby Sykes. The gist of Sykes’ and Robin Davis’ testimonies is that neither of them saw plaintiff fall from the tractor. Neither of them recalled seeing plaintiff limping nor remembered plaintiff’s mentioning to them anything about the accident until some time in February. Sykes testified that plaintiff told him some time in February that he was going to have surgery performed on his knee because of an injury on the job. Both testified that the weather conditions were cold and slippery.

J.W. Davis affirmatively testified that Nealy did not report the accident to him on December 31, 1982. He testified that he conducted mandatory weekly safety meetings in which he instructed all of the employees under his supervision to report any and all accidents however minor. He said he was first made aware of the accident on February 9th, as indicated in the accident report filled out and mailed to GATX on February 18, 1982. He further testified that he did not see plaintiff limping until some time in February, after plaintiff had been sent to the job in St. James Parish.

Cross-examination of each of the defendant’s witnesses revealed that all were unemployed at the time of trial, the tank reconstruction project having been completed the previous March. GATX had terminated J.W.’s employment because a previous accident in March of 1980, for which he had received a worker’s compensation settlement, had rendered him increasingly unable to function as a foreman. J.W. was negotiating with GATX at the time of trial to get his job back. He was only six years away from retirement. Cross-examination further revealed that Robin Davis was J.W.’s son. He was also looking to go back to work for GATX.

It appears that Nealy was the sole witness to the accident. However, his testimony alone is sufficient to establish the occurrence of an accident provided that his version of the event is not discredited by other credible evidence in the record and his testimony is corroborated by the circumstances surrounding the event. See Johnson v. Louisiana State University, 417 So.2d 467, 470 (La.App. 1st Cir.1982); Williams v. Offshore Food Services, Inc., 417 So.2d 475, 478 (La.App. 1st Cir.1982). Moreover,

the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry his burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.

Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974) (citations omitted).

We have not the benefit of the trial court’s reasons for judgment as he assigned none. Nonetheless, we think that a reasonable evaluation of the evidence supports Nealy’s version of the accident. Cold, wet and muddy, the weather conditions on the day in question were ripe for the kind of accident encountered by the plaintiff, exposed to a risk of fall by virtue of his position as laborer. Moreover, plaintiff’s testimony was corroborated by that of his wife and his brother-in-law.

Despite J.W.’s insistence that he was not told of the incident and that he would have remembered it if he had, it is reasonable to infer that Davis simply forgot or that given plaintiff’s own casual attitude about the injuries at the time, Davis did not consider the incident to be serious. The fact that Nealy did not ask to fill out a formal report until February 9th does not discredit his testimony that the accident in fact occurred five weeks earlier. Nealy explained that at the time he thought the injury was only minor and that he continued to work in pain because he needed the money. Finally, given the Davis’ relationship with GATX, suggesting a possible influence on their testimony, it would not be unreasonable to give greater credence to Nealy’s version than to the defendant’s witnesses’.

Therefore, we find no manifest error in the judgment awarding plaintiff $183.00 per week in compensation benefits until such time as plaintiff can return to work. The evidence in the record supports a finding that plaintiff proved by a preponderance a compensable accident.

Moreover, the trial court did not err in awarding benefits from the date of the accident rather than from the date of the disability. Although the defendant has not raised the issue of causation, we think that proof of the accident event reasonably supports a finding that plaintiff’s disability resulted therefrom. Since plaintiff’s disability has persisted for more than six weeks after the date of the accident, compensation is payable from that date. See LSA-R.S. 23:1224.

However, the evidence does not support a finding that GATX was “arbitrary, capricious, or without probable cause” in refusing payment within the meaning of LSA-R.S. 23:1201.2. Defendant was not notified of the accident until nearly six weeks after the event. Plaintiff was the sole witness of the accident, and his co-employees’ testimony cast a reasonable doubt on plaintiff’s claim to justify defendant’s denial of liability. According to Crooks v. Belden Corporation, 334 So.2d 725, 727 (La.App. 3rd Cir.1976), “the penalty provided by the statute is very harsh and should not be imposed in doubtful cases. Where there is a bona fide dispute as to the occurrence of the accident ... an employer’s refusal to pay benefits is in good faith and with just cause.”

For the foregoing reasons, we affirm the compensation award and reverse the award of penalties and attorney fees. All costs of these proceedings are assessed to the appellant.

AFFIRMED IN PART; REVERSED IN PART.

       Defendant contends that plaintiffs introduction into evidence of Dr. Maki’s progress report and progress letters to his attorney in lieu of medical testimony and his failure to call his co-employees give rise to the presumption that such testimony would have been unfavorable to the plaintiffs case. The issue before us is whether plaintiff proved an accident. His treating physician had no particular information that could shed light on whether or not an accident occurred, since he was not an eyewitness to the event. Moreover, plaintiffs co-employees did in fact testify at trial. Thus, we think the presumption is inapplicable. See Morgan v. Matlock, Inc., 366 So.2d 1071, 1074 (La.App. 1st Cir.1979).


author: ALFORD, Judge.

text:
    Helen St. Pierre EYMARD v. Emmett A. EYMARD.
    No. 82 CA 1007.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Dec. 9,1983.
    Carl J. Schumacher, Jr., New Orleans, for plaintiff Helen St. Pierre Eymard.
    Edward T. Diaz, of Diaz & Cheramie, Golden Meadow, for defendant Emmett A. Eymard.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment of the Seventeenth Judicial District Court, Parish of Lafourche, in favor of appellee, Emmett A. Eymard, and against appellant, Helen St. Pierre Eymard Hicks, in the amount of seventeen thousand, three hundred forty dollars and ninety-three cents ($17,340.93), together with interest at the rate of ten (10%) per cent per annum from April 11, 1981. This amount represents the cash surrender value of a life insurance policy, the ownership of which is in dispute.

Appellant and appellee were divorced on December 5,1979. Trial on the partition of the community formerly existing between the parties was set for December 12, 1980. Extensive negotiations on the day of trial resulted in the parties entering into a compromise settlement. This settlement was entered as a consent judgment by the trial court on December 15, 1980. The parties having been married some thirty-two years had accumulated considerable community property, including among other assets, twelve life insurance policies. This litigation involves the ownership of the cash surrender value of one of these policies.

On April 7, 1980, a formal act of settlement was entered into between appellant and appellee. At the time this formal act of settlement was entered into there remained a dispute as to funds in the amount of twelve thousand, three hundred twenty dollars and ninety-one cents ($12,320.91). These funds represented, among other things, the cash value of two life insurance policies which appellant had redeemed. The parties agreed to escrow the funds in dispute and have the trial judge determine who was entitled to them. The trial court determined that since the policies were community property and since the settlement provided that appellee was to receive all of appellant’s half of the community in exchange for a cash sum, appellee was entitled to the cash surrender value of the policies.

Subsequent to the judgment on the es-crowed funds, appellee filed a rule to refund insurance proceeds relating to the cash surrender value of yet another life insurance policy which appellant had redeemed. By judgment dated July 26, 1982, the trial judge ruled that appellee was also entitled to the proceeds from the policy in dispute. We find nothing erroneous in this ruling. Although we do not have the trial judge’s reasons for judgment, it is apparent that he found, as he did in the dispute over the escrowed funds, that appellant had transferred her interest in the policy to appellee as part of the community property settlement. Costs of this appeal to be borne by appellant.

AFFIRMED.


text:
    Ethel Bell Williams, Widow of David JOHNSON, Individually and as the Administratrix of her Daughter Fran Johnson’s Estate v. Calvin N. FOLSE and Aetna Insurance Company.
    No. 82-CA-1011.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Frank S. Bruno, Bruno, Bruno & Blouin, New Orleans, for plaintiff Ethel B. Williams.
    Arthur H. Andrews, Richard T. Reed, Franklin, Moore & Walsh, Baton Rouge, for defendant Aetna Insurance Co., Calvin N. Folse.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Defendants appeal the trial court’s judgment awarding plaintiff $145,000.00 for the wrongful death of her daughter, Fran Johnson. We affirm.

BACKGROUND FACTS

Fran Johnson, decedent, was killed in an auto accident when the vehicle she was driving collided with a backhoe that had broken loose from an oncoming trailer, pulled by Calvin Folse’s truck. Plaintiff, decedent’s mother, filed suit against Folse and his insurer, Aetna Insurance Company, seeking to recover the loss of love and affection of Fran, the loss of future support, and the conscious pain and suffering experienced by Fran prior to her death.

The case was tried before a jury, which found Folse negligent and awarded plaintiff $175,000.00 in damages. However, the trial court ordered a new trial solely on the issue of damages. A second jury then returned an in globo award of $145,000.00 for plaintiff’s damages.

Defendants appealed this second award, arguing that it is excessive and should be reduced to $50,000.00.

Defendants contend that the in globo award of $145,000.00 is for plaintiff’s alleged loss of love and affection because the financial support given plaintiff by decedent was minimal, and because the record indicates that decedent died instantly upon impact and endured no pain and suffering. For purposes of this appeal, the award will be treated as being made solely for plaintiff’s loss of love and affection.

QUANTUM

The sufficiency or insufficiency of an award for damages should be determined by the facts and circumstances peculiar to the case. Before an award may be questioned as inadequate or excessive, the reviewing court must look to the individual circumstances of the instant case. This initial inquiry must be directed at whether the award for the particular injuries and their effects upon the particular injured person is a clear abuse of the trier of fact’s much discretion. Reck v. Stevens, 373 So.2d 498 (La.1979).

In this initial determination of ex-cessiveness or insufficiency, an examination of prior awards has a limited function and may serve as an aid in this determination only when the present award is greatly disproportionate to the mass of awards in prior cases involving closely similar injuries, facts and circumstances. Reck, supra.

An examination of the record in this case reveals that Fran and her mother, a widow, enjoyed a close relationship. Fran, 20 years old at her death, was plaintiff’s youngest daughter and lived at home along with two brothers and two sisters. A student at Nic-holls State University, she had vowed to help her mother in any way possible, and hoped some day to build a house for her. She often shared some of her part-time earnings with plaintiff.

Fran’s sister testified that plaintiff continues to keep Fran’s room as it was when she was alive, and that plaintiff still fixes a place for Fran at the dinner table. Plaintiff testified that it is hard for her to accept Fran’s death, and that often she thinks Fran will return.

It is clear from the foregoing that plaintiff and decedent shared a close, loving relationship, and that plaintiff indeed suffered a tragic loss from Fran’s untimely death. However, defendants contend that the award of $145,000.00 for plaintiff’s loss of love and affection is an abuse of discretion and should be reduced to $50,000.00. In support, defendants cite the following cases: Williams v. State Farm Mut. Auto Ins. Co., 349 So.2d 1275 (La.App. 1st Cir.), writ denied 351 So.2d 175 (La.1977), $50,-000.00 awarded to each parent for death of 21 year old son; Knotts v. State, Dept. of Highways, 395 So.2d 419 (La.App. 3rd Cir.), writ denied 400 So.2d 669, 670 (La.1981), $75,000.00 awarded to each parent for death of 11 year old daughter; Lapoint v. Breaux, 395 So.2d 1377 (La.App. 1st Cir.), writ denied, 399 So.2d 611 (La.1981), $50,000.00 awarded to each parent for death of 18 year old son; Bullard v. State, Dept. of Transp., etc., 413 So.2d 606 (La.App. 1st Cir.1982), trial court award of $150,000 to each parent for death of 27 year old son reduced to $100,000.00 per parent.

These cases, however, are of little aid in determining under Reck v. Stevens, supra, whether the jury abused its discretion in making its award. Although all the cases involve the death of a child, they contain significantly dissimilar facts and circumstances relating to the particular effects of the deaths on the particular plaintiff, e.g., the loss of love and affection was assessed as to two parents, not a widow like plaintiff, who would be more vulnerable to the trauma of losing a child.

A closer factual situation is presented by Williams v. City of New Orleans, 433 So.2d 1129 (La.App. 4th Cir.1983), where a mother was awarded $150,000.00 for the loss of love and affection from her deceased son, who was in his early twenties. As in our ease, there existed a very close relationship between mother and child.

After reviewing these cases concerning amounts of prior awards, and examining the particular facts and circumstances of this case, we feel that the award of $145,000.00 for plaintiff’s loss of love and affection is warranted.

DECREE

For the above expressed reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Judy D. NOLA v. Justina RAMSAY.
    No. 82 CA 1021.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Richard P. Reina, Denham Springs, for plaintiff.
    Larry G. Starns, Denham Springs, Guy W. Smith, Simon, Peragine, Smith & Red-fearn, New Orleans, for defendant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment of the Twenty-First Judicial District Court, Parish of Livingston, ordering the cancellation of a mineral lease along with damages and attorney fees in favor of appellee, Judy Nola. Appellant, Justina Ramsay, appeals the judgment alleging that she was denied an opportunity to present her case and that the trial judge misinterpreted the rental payment provisions of the lease.

Appellee entered into the mineral lease with Shadow Springs Land, Oil and Mineral Corporation on December 13,1979. Shadow Springs subsequently assigned the lease to appellant on May 14,1980. The lease had a five year term with rental payments of three hundred and fifty Dollars ($350.00) per acre payable annually on or before the thirteenth of December. Appellee filed suit on March 16,1982, seeking to have the lease extinguished and cancelled for appellant’s failure to make the December 13, 1981, rental payment on time.

The trial court appointed a local attorney to represent appellant in that she was a resident of Mississippi. This attorney filed an answer in the form of a general denial and notified appellant of the pending action. Appellant then retained a New Orleans attorney who filed another answer on her behalf alleging that the lease had not been breached due to the fact that the rental payment had been mailed prior to December 13, 1981, in accord with the payment provisions of the lease.

Trial of the matter was set for April 16, 1982. Appellant alleges that since her case was seventh on the court’s docket, the decision was made to have her and her New Orleans attorney await a phone call from appellant’s appointed attorney, who continued to try to negotiate a settlement, before beginning the trip from New Orleans to Livingston Parish. This was apparently done because it was felt that the case might not actually be heard that day due to the court’s having six cases before appellant’s. Several matters on the court’s docket were continued and the trial court began inquiring into the time needed for the remaining cases. The court then decided to take the remaining cases out of order and appellant’s case was called. Appellant’s appointed attorney informed the court that appellant and her retained counsel were in route from New Orleans and asked for a short continuance. There is some dispute in the briefs as to whether appellee’s counsel at the time entered into the motion with appellant’s attorney. Regardless, the motion for continuance was denied and the trial commenced without appellant or her retained counsel being present. Judgment was granted in favor of appellee on the ground that the lease required payment on or before December 13, 1981.

We are aware of the great discretion to be accorded the trial judge’s decision not to grant a continuance, but we are of the opinion that this discretion can not be exercised so as to deny a party her day in court. Marpco, Inc. v. South States Pipe & Supply, 377 So.2d 525 (La.App. 3rd Cir.1979). Our opinion in this matter is influenced by the fact that appellant is an out of state resident. Given that the case was scheduled for seventh on the court’s docket we do not feel that it was unreasonable for appellant and her retained counsel to await word that the case would actually be heard before making the trip to Livingston Parish. Additionally, the fact that the sixth matter on the docket could have been heard before appellant’s case clearly shows that judicial efficiency would not have been interrupted by the granting of a short continuance.

We are of the further opinion that the trial judge misinterpreted the rental payment provisions of the lease in question. “All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act.” LSA C.C. art. 1955. Clearly, within the first numbered paragraph of the lease, it is stated that the mailing of the rental payment on or before the rental payment date shall be considered payment of the rental under the lease. Therefore, if appellant can offer proof that the payment was mailed on or before December 13,1981, as she alleges, the lease has not been breached.

Therefore, for the foregoing reasons, the judgment of the trial court is reversed and the matter is remanded for proceedings consistent with this opinion. Costs of this appeal to be borne by appellee.

REVERSED AND REMANDED.


author: LOTTINGER, Judge.

text:
    Michael HEBERT, d/b/a Associated Artists Agency v. LIVINGSTON PARISH SCHOOL BOARD, Melvin E. Brown, and Wayne Howes.
    No. 82 CA 1024.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22,1983.

      G. Paul Marx, Lafayette, for plaintiff.
    J. Donald Cascio, Denham Springs, Myron A. Walker, Baton Rouge, for defendants.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This is an action for breach of contract seeking damages, costs and attorney fees. Plaintiff, Michael Hebert, d/b/a Associated Artists Agency, sued defendants, Livingston Parish School Board, Melvin Brown, and Wayne Howes, alleging the breach of a contract under which plaintiff was to provide musical entertainment at the Springfield High School junior prom. The contract was signed by Wayne Howes in his capacity as junior class sponsor at Springfield High School, and was approved by Melvin Brown, principal of the school. Both Brown and Howes are employees of the defendant school board.

After a trial on the merits, the trial court found that none of the defendants named were parties to the contract, and that the contract was executed between plaintiff and the Springfield High School junior class. Accordingly, plaintiff’s suit was dismissed, and this devolutive appeal followed.

FACTS

Shortly after the commencement of the 1980-1981 school year, the junior class at Springfield High School conducted a meeting to make preparations for the junior prom to be held in the spring of 1981. Different committees, including an entertainment committee, were selected. A suggestion was made that the musical entertainment for the junior prom be that of a “sound system,” meaning a highly amplified disc-jockey show with a light show, records and tapes. Live bands customarily had been engaged at previous proms. The suggestion to engage a “sound system” rather than a live band was referred to the entertainment committee, where the suggestion was adopted. This decision was approved unanimously by the junior class. Subsequently, the members of the junior class chose the Music Machine, a sound system operated by plaintiff, over several other systems available.

Deanie Herring, as chairperson of the entertainment committee, contacted plaintiff to procure the Music Machine for the prom. A written contract was sent to Miss Herring by plaintiff, with instructions that the contract had to be signed by a faculty representative. The contract is dated November 19, 1980, and is signed by plaintiff and by Wayne Howes as the “Representative” of the Springfield High School junior class, designated as “Employer.” It is not readily apparent from the face of the contract whether the Music Machine, designated as “Employee,” is a band or a disc-jockey service.

Wayne Howes, prior to signing the contract, showed the document to his principal, Melvin Brown. Both faculty members testified that they thought the Music Machine was a performing band. After Brown approved the contract, the contract was signed by Howes and returned to plaintiff.

Brown and Howes testified that some months later, in February of 1981, they became aware that the music for the prom was not that of a live band. Using a disc-jockey sound system for the junior prom was deemed inappropriate by Brown, and on March 11,1981, Brown and Howes wrote to plaintiff, informing him the services of the Music Machine would not be required for the night of the prom, May 2, 1981.

After unsuccessfully attempting to rebook the date, plaintiff demanded payment of the $500.00 fee stated in the contract, inasmuch as the contract provided for payment of the fee in case of cancellation without the written consent of the employee. The instant action followed.

SPECIFICATIONS OF ERROR

Plaintiff-appellant, Michael Hebert, d/b/a Associated Artists Agency, assigns the following specifications of error:

1. The district court erred in failing to hold the Livingston Parish School Board to the obligation of a contract negotiated by a person with apparent authority to bind the Board.
2. The district court erred in failing to bind the Livingston Parish School Board by the acts of Wayne Howes and Melvin Brown, its agents in fact.
3. The district court erred in finding that appellant has a contract with the junior class of Springfield High, which is not a legal entity capable of contracting.
4. The district court erred in failing to impose liability upon appellee Melvin Brown, principal of Springfield High, despite finding that he prevented performance of the contract.
5. The district court erred in refusing to enforce the contract based on an error which had no relation to the principal motive of the contract.

SPECIFICATION OF ERROR NO. 3

The trial court held that the only parties to the contract were plaintiff and the Springfield High junior class, which was designated in the contract-as the “Employer.” Plaintiff argues that the Springfield High junior class is not a legal entity capable of contracting.

We agree. The junior class is but an administrative classification of certain students at Springfield High, which is an administrative subdivision of the subject school district. Moreover, at the time the contract was executed, the members of the class were unemancipated minors who by law are incapable of contracting, La.Civ. Code art. 1785. Nor can it be said that Wayne Howes signed the contract as the agent of the students, since as unemanei-pated minors, the students were incapable of contracting through an agent. Thus, the trial court erred in holding that the Springfield High School junior class was a party to the contract.

SPECIFICATIONS OF ERROR NOS. 1, 2 AND 4

Inasmuch as a prom is a legitimate school function, plaintiff argues that the Livingston Parish School Board is bound by the contract signed by its employee, Wayne Howes. Plaintiff contends that Howes was the agent in fact of the school board and in the alternative argues that Howes was vested with apparent authority to bind the school board.

With the latter proposition we cannot agree. The fact that one person is the employee of another does not of necessity make him an agent of his employer, since the two relationships cannot be equated, Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968). In Lowe & Campbell Sporting Goods Co. v. Tangipahoa Parish School Board, 15 So.2d 98 (La.App. 1st Cir.1943), reversed on other grounds, 207 La. 52, 20 So.2d 422 (1944), this court stated that a merchant could not rely on the apparent authority of a school principal or athletic coach to bind a school board to a contract for the purchase of football equipment to be used by the school team, and that actual authority was required.

Nonetheless, we are of the opinion that Melvin Brown held actual authority to bind the school board in this instance. La.R.S. 17:414.1 reads as follows:

“The principal appointed by the parish or city school board for each public elementary and secondary school shall serve, under the overall direction of the parish or city superintendent of schools, as the administrative officer of the school to which he is assigned. Consistent with the requirements of law and the rules and regulations of the State Board of Elementary and Secondary Education and the parish or city school board by which he is employed, he shall have administrative responsibility for the direction and supervision of the personnel and activities and the administration of the affairs of that school.”

In the civil law, the term “administrator” means a manager or conductor of affairs, especially the affairs of another, in his name or behalf. Black’s Law Dictionary, Fourth Edition, West Publishing Company 1968. La.R.S. 17:414.1 was enacted by Acts 1976, No. 456, the preamble to which states that the purpose of the act is “to provide relative to the status and duties of principals of public elementary and secondary schools.”

At trial, job descriptions for the position of principal and teacher, as promulgated by the defendant school board, were introduced into evidence. According to a list of “performance responsibilities,” a principal “supervises and evaluates the school’s extracurricular program” and “acts as liaison between the school and the community in interpreting activities and policies of the school and encouraging community participation in school life.” The performance responsibilities list for teachers states that a teacher “accepts a share of responsibility for cocurricular activities as assigned” by the principal.

For a principal to act effectively as the administrative officer for the school, supervisor of extracurricular activities, and liaison between the school and the community, the authority to sign contracts on behalf of the school board must be inferred. While money for the junior prom was to be raised by members of the junior class, the Livingston Parish School Board, by promulgating the job performance responsibilities listed above, commanded its principals and teachers to participate in and supervise extracurricular activities which inevitably lead to contracts such as the instant one, and thus, in the opinion of this court, assumed ultimate financial responsibility for such contracts. Therefore, we find that Melvin Brown, as administrative officer of Springfield High and as supervisor and community liaison for extracurricular activities, held actual, albeit implied, authority to bind the Livingston Parish School Board to the instant contract, and that this authority was properly delegated, in accordance with school board policy, to Wayne Howes, the junior class sponsor. Thus, the school board is a party to the contract and may be held liable for the breach thereof.

However, despite the fact that Melvin Brown prevented performance of the contract and caused its cancellation, we do not find personal liability on his part. Brown’s actions throughout the instant scenario were implicitly authorized by his employer, the Livingston Parish School Board. Inasmuch as Brown’s actions did not exceed his authority, he is not personally liable under the contract, La.Civ.Code arts. 3010 and 3013.

SPECIFICATION OF ERROR NO. 5

In their answer, defendants specifically pled the affirmative defense of error of fact. Defendants argue that their consent to the contract was vitiated by error since Melvin Brown and Wayne Howes were, at the time the contract was approved and signed, of the erroneous impression that the Music Machine was a live rock-and-roll band.

Plaintiff argues that any such error did not go to the motive for making the contract, which plaintiff asserts is obtaining dance music for the prom. Alternatively, plaintiff contends that even if a live band was the principal cause or motive behind the contract, this error does not invalidate the contract, since he neither knew nor should have known that Brown would not have approved the contract had Brown realized the Music Machine was not a band, La.Civ.Code art. 1826.

Defendants contend that the error in the contract bore on the subject of the contract, that is, there was a factual error as to the substance or substantial quality of the thing to be contracted, and therefore, actual or constructive knowledge of the plaintiff is not required to invalidate the contract, citing La.Civ.Code arts. 1842, 1843, and 1844.

At trial, a great deal of testimony pertained to whether Wayne Howes had been apprised of the type of music performed by the Music Machine.

Howes testified that he was present in the school gymnasium during all junior class meetings, since he was a class sponsor. However, Howes testified that he did not always pay close attention to the agenda of the meetings, and often went to the lobby to talk with one of the coaches. Howes stated that he was not aware that the students had chosen a sound system instead of a live band. Howes testified that he assumed, upon hearing.mention of a “sound system,” that this term referred to equipment to be used by a band.

Deanie Herring, chairperson of the entertainment committee, testified that Mr. Howes was in close proximity when the decision was made to rent a sound, system rather than hire a band, and that the distinction was explained to Mr. Howes. Keith Patterson, junior class president, could not recall whether Mr. Howes was present when the decision to rent a sound system was made or whether Mr. Howes was aware that the musical entertainment for the prom was not a live band.

When Howes received the written contract from plaintiff via Deanie Herring, a brochure accompanied the contract. The brochure, which was introduced into evidence, contains an illustration which depicts dancers, lights, amplifiers, and a bearded man standing over stereo equipment, to wit, a reel-to-reel tape player and a turntable with a phonographic needle. The bearded man’s hand is immediately above the phonographic needle, as if the needle is being placed onto a rotating phonograph record. The literature on the brochure makes reference to a “stereo amplifier,” “direct drive Technics turntables” and “speakers.” Howes testified that he saw the brochure and read its contents prior to bringing the contract to Melvin Brown for approval.

Under these factual circumstances, defendants cannot avail themselves of the defense of error of fact, regardless of whether the error went to the motive behind the contract or the subject thereof. The inescapable inference which arises is that any error of fact suffered by the defendants was caused by the inattention of Wayne Howes.

Even accepting Howes’ testimony at face value, and ignoring that of Deanie Herring, Howes admitted that he apparently had not paid attention and perhaps was not even present when the choice of music was made. A class looks to its sponsor for guidance and depends upon the sponsor to help obtain necessary goods and services for a prom. Howes’ lack of diligence toward his responsibilities as class sponsor resulted in his erroneous assumption that the Music Machine was a band. In view of this carelessness, defendants cannot now avoid the obligations of the contract by claiming error of fact. Schorr v. Nosacka, 16 La.App. 20, 132 So. 524 (La.App.Orl.Cir.1931). See also Palmer, Contractual Negligence in the Civil Law — The Evolution of a Defense to Actions for Error, 50 Tul.L.Rev. 1 (1975), and cases cited therein.

Moreover, we are of the opinion that a cursory glance at the brochure which accompanied the contract should have alerted Howes that the Music Machine was not a band. As was mentioned above, in the forefront of the illustration is a tape player and record turntable, with which as a teacher Howes should have some familiarity. Thus, this evidence and the testimony of Deanie Herring casts doubt on whether Howes was truly ignorant of the nature of the music to be contracted for the prom.

For these reasons, we hold that the affirmative defense of error of fact does not avail defendants in the instant action.

LIABILITY

As was noted by the trial court, plaintiff contracted in good faith to perform a disc-jockey service for the 1981 Springfield High School junior prom. At all times plaintiff stood ready to perform his obligation, but the contract was unilaterally cancelled by Melvin Brown, the school principal. The contract provides for payment of the principal fee if cancelled without written consent of the employee, and provides for the payment of costs and legal fees if the remuneration is not paid. Inasmuch as we find the acts of Wayne Howes and Melvin Brown in signing and subsequently breaching the contract to have been authorized by their employer, the Livingston Parish School Board, judgment in favor of plaintiff and against the defendant school board shall issue accordingly.

DECREE

Therefore, for the above and foregoing reasons, judgment of the trial court in favor of defendants, Melvin Brown and Wayne Howes, and against plaintiff, Michael Hebert, d/b/a Associated Artists Agency, is hereby affirmed. Judgment of the trial court in favor of defendant, Livingston Parish School Board, and against plaintiff is hereby reversed; and there is now judgment in favor of plaintiff, Michael Hebert, d/b/a Associated Artists Agency, and against defendant, Livingston Parish School Board, in the full and true sum of FIVE HUNDRED AND NO/lOOths ($500.00) DOLLARS, plus legal interest from date of judicial demand until paid. All costs, both in this court and in the trial court, including FIVE HUNDRED AND NO/lOOths ($500.00) DOLLARS as reasonable attorney fees incurred by plaintiff in the prosecution of this cause, are assessed to defendant, Livingston Parish School Board.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . There is no indication in the record that any members of the junior class were emancipated or had reached the age of majority.

      . Note, however, La.Civ.Code art. 3001, which permits an emancipated minor to act as a mandatory.

      . Although the opinion speaks in terms of “implied authority,” use of this term was incorrect, since plaintiffs argument was that by hiring a coach of athletics, the school board clothed the principal or coach with the authority to purchase football equipment on its behalf. This argument urges the employees’ apparent authority, which arises when the principal acts in such a way that third parties are justified in assuming the agent has certain authority, Thompson v. Great Midwest Fur Company, 395 So.2d 840 (La.App. 1st Cir.1981). Unlike apparent authority, implied authority is actual authority, which, while unexpressed, is to be inferred from the circumstances, purposes, and nature of the agency, Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (La.1973).

      . Plaintiff has not re-urged on appeal the personal liability of Wayne Howes; thus, this part of plaintiffs original demand is deemed abandoned.

      . La.Civ.Code art. 3010 provides:
      “The attorney can not go beyond the limits of his procuration; whatever he does exceeding his power is null and void with regard to the principal, unless ratified by the latter, and the attorney is alone bound by it in his individual capacity.”
      La.Civ.Code art. 3013 provides:
      “The mandatory is responsible to those with whom he contracts, only when he has bound himself personally, or when he has exceeded his authority without having exhibited his powers.”

      . La.Civ.Code art. 1826 reads:
      “No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.”

      .La.Civ.Code art. 1842 reads:
      “Error as to the thing, which is the subject of the contract, does not invalidate it, unless it bears on the substance or some substantial quality of the thing.”
      La.Civ.Code art. 1843 reads;
      “There is error as to the substance, when the object is of a totally different nature from that which is intended. Thus, if the object of the stipulation be supposed by one or both the parties to an ingot of silver, and it really is a mass of some other metal that resembles silver, there is an error bearing on the substance of the object.”
      La.Civ.Code art. 1844 reads:
      “The error bears on the substantial quality of the object, when such quality is that which gives it its greatest value. A contract relative to a vase, supposed to be gold, is void, if it be only plated with that metal.”


text:
    The ESTATE OF Claude P. BOUDREAUX v. Anthony R. VERDIN. The ESTATE OF Claude P. BOUDREAUX v. Curtis VERDIN.
    Nos. 82 CA 1038, 82 CA 1039.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Gerald F. Lofaso, Houma, for plaintiff and appellee.
    Herbert W. Barnes, Jr., Houma, for defendant and appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment rendered in the City Court of Houma, Parish of Terrebonne, on two consolidated rules to evict. Appellee, the estate of Claude P. Boudreaux, filed the eviction proceedings against appellants, Anthony and Curtis Verdin. The trial court determined that appellee was entitled to the evictions based on LSA C.C.P. art. 4701, et seq.

The trial judge gave the following narrative of facts:

“Mr. Robert Boudreaux, Sr. testified on behalf of the Estate of Claude P. Bou-dreaux. He testified the Estate of Claude P. Boudreaux owned the property involved herein. Prior to about 1933 the property had been sold to the parents of Anthony and Curtis Verdin but they were unable to pay for the property so it was re-transferred to Claude P. Boudreaux with the agreement they could continue living on the property until they died. Both are deceased. Mr. Boudreaux said the defendants were supposed to buy the property but never did, that one of the defendants paid rent for a couple of months, and the Boudreauxs have been attempting to get them off the property for some time.
Introduced into Evidence as P-1 was the letter written to Anthony Verdin on August 26th, 1982; P — 2 is the letter written to Curtis Verdin; P-3 is the legal description of the property occupied by Anthony Verdin and P-4 is the legal description of the property occupied by Curtis Verdin.
Anthony Verdin testified his parents lived on the property prior to their deaths; that he moved a house thereon and paid rent a couple of months until his mother asked him why he was paying rent to the Boudreauxs since the property belonged to “The Verdins.” They have no bill of sale or any other document evidencing any rights of ownership or possession.
Curtis Verdin, Mary Verdin Dean and Rose Verdin Rodrigue all testified basically the same as Anthony Verdin.”

In his reasons for judgment, the trial judge noted that he found it strange that appellants in their answer to the rule to evict did not assert ownership, although in their testimony they allege they own the property. He went on to find that no written lease is required for appellee to utilize the eviction proceedings and that if a person is in fact in possession of property, the owner can cause them to be evicted. We find nothing erroneous in these general statements of the law relative to eviction.

As conceded by appellants in their brief, in order for appellee to utilize the eviction proceedings found in LSA C.C.P. art. 4701, et seq., appellants must either be lessees or occupants. Appellants maintain that they do not fall under either of these two categories. It is appellants’ contention that no evidence was produced to show that any lease was ever in effect between the parties, and further, that they could not be said to be occupants because they possessed the property adversely to appellee. We find it interesting that Anthony Verdin testified that he did in fact pay rent for several months and then ceased with the payments. Additionally, there is testimony to the effect that Claude P. Boudreaux allowed appellants’ parents to live on the property for as long as they might live.

LSA C.C.P. art. 4702 provides,

“When an owner of immovable property wishes to evict the occupant therefrom, after the purpose of the occupancy has ceased, the owner, or his agent, shall first cause a written notice to vacate the property to be delivered to the occupant.
This notice shall allow the occupant five days from its delivery to vacate the premises.”

The definition of occupant is found in LSA C.C.P. art. 4704 which provides in pertinent part,

“ ‘Occupant’ ” includes a sharecropper; half hand; day laborer; former owner; and any person occupying immovable property by permission or accommodation of the owner, former owner, or another occupant, except a mineral lessee, owner of a mineral servitude, or a lessee of the owner;”

We are of the opinion, as was the trial judge, that appellants were occupants of the property by virtue of the accommodation of Claude P. Boudreaux, and upon the death of appellant’s parents the purpose of the occupancy ceased. Therefore, given that the requisite notice was given, we affirm the ruling of the trial court. Costs of this appeal are to be borne by appellants.

AFFIRMED.


author: ALFORD, Judge. LOTTINGER, Judge,

text:
    Robert A. WEAVER v. Marie Grace Manzella WEAVER.
    No. 82 CA 1050.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Carvel A. Sims, Baton Rouge, for plaintiff-appellee Robert A. Weaver.
    Paula Cobb, Baton Rouge, for defendant-appellant Marie Grace Manzella Weaver.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Robert A. Weaver, plaintiff, filed this suit for divorce on grounds of adultery against his wife, Marie Grace Manzella Weaver. Mrs. Weaver was personally served and when she failed to answer the suit, a preliminary default was entered against her. Later, the preliminary default was confirmed. When defendant’s motion for a new trial was denied, defendant perfected this appeal. As her only specification of error, defendant alleges that the trial court erred when it found plaintiff had established a prima facie case for a divorce based on adultery. We agree with defendant and remand this case for a trial on the merits.

Louisiana Code of Civil Procedure article 1702 provides in part:

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.

The law in Louisiana is clear that confirmation of a default judgment must be made by admissible and credible evidence sufficient to prove each element of plaintiff’s claim with legal certainty, as fully as though each allegation had been specifically denied by defendant. Tucker v. Howes, 413 So.2d 585 (La.App. 1st Cir.1982); Cowell v. Dairyland Insurance Company, 399 So.2d 701 (La.App. 1st Cir.1981); Holland v. Aetna Life and Casualty Insurance Company, 385 So.2d 316 (La.App. 1st Cir.1980).

It is equally well established that in reviewing a default judgment, an appellate court is restricted to a determination of the sufficiency of the evidence offered in support of the judgment. Colonial Bank v. Baptiste, 370 So.2d 681 (La.App. 4th Cir.1979); Eddie’s Hardware, Inc. v. Rago, 320 So.2d 276 (La.App. 4th Cir.1975). Thus, our review on appeal must be restricted to whether or not the record contains sufficient evidence to prove a prima facie case for divorce based upon adultery.

The question becomes just what manner of proof must be offered to establish a case of adultery against a party. Four witnesses testified at the confirmation hearing: plaintiff, plaintiff’s mother, and two private investigators employed by plaintiff. The testimony of plaintiff and his mother was very short and was specifically limited to two subjects: (1) Were plaintiff and defendant once married and (2) Have they reconciled since their separation. Absolutely nothing was introduced suggesting defendant may have committed adultery.

Of the two private detectives only one, John Tyler, testified as to the facts of the case. The other, Paul Neal, merely stated that he accompanied Tyler during the investigation and his testimony would be substantially the same as Tyler’s. Thus, the proof vel non of adultery rests entirely on Tyler’s observations.

No one questions the fact that Tyler was aware of defendant’s appearance and made a positive identification of her. After stating that he observed defendant at a house on Gladiola Street in Port Allen on the night of July 15, 1982, Tyler testified as follows:

Q. Did you obtain this address from Mr. Weaver?
A. Yes I did.
Q. What approximate time of day did you first observe her?
A. Seven-forty-five, July 15th.
Q. Is that a.m. or p.m.?
A. P.M.
Q. And at that time where was she — not the address, but what was she doing or where was she?
A. She was inside the house at 710 Gladiola Street.
Q. And did you determine that it was, in fact, her — you were satisfied that it was Maria Weaver?
A. Yes sir.
Q. Now, were there other people living at that house?
A. Two men.
Q. And did you observe them come in that evening?
A. Yes I did.
Q. And when did you observation end?
A. Six-thirty the next morning.
Q. And about what time did the lights go out at that house?
A. Two in the morning.
Q. And when the lights went out were these two men present with Maria at that address?
A. Yes they were.

This was the complete testimony on Tyler’s knowledge of whether defendant had committed adultery.

A spouse’s innocence of immoral acts is presumed and the burden is upon the complaining spouse to prove an adulterous relationship by either direct or circumstantial evidence. Bynum v. Bynum, 296 So.2d 382 (La.App. 2nd Cir.1974). Neither Mr. Weaver or Mr. Tyler testified that they observed defendant having intercourse with either or both of the “two men” in the house on Gladiola Street. Thus, plaintiff’s case is not supported by direct evidence and must be decided on circumstantial evidence. To warrant a divorce on the ground of adultery, circumstantial proof must be so convincing as to exclude any other reasonable hypothesis but that of guilt. Hayes v. Hayes, 225 La. 374, 73 So.2d 179 (1954); Billiot v. Rivere, 378 So.2d 512 (La.App. 4th Cir.1979). The mere fact that a man and woman are alone together does not necessarily create a presumption that adultery was committed. Hermes v. Hermes, 287 So.2d 789 (La.1973); Kendrick v. Kendrick, 232 La. 1104, 96 So.2d 12 (1957). We think there is even less of a presumption of adultery when another man is alone with the other two people.

There is no evidence in the record that Mrs. Weaver and another man were in each other’s presence in a state of undress and there is no evidence that on the night of July 15 or 16, 1982, they spent the night together in the same bedroom. Hanley v. Hanley, 381 So.2d 963 (La.App. 4th Cir.1980); Soroe v. Soroe, 334 So.2d 543 (La. App. 4th Cir.1976). Furthermore, there is absolutely no evidence to suggest that defendant may have spent extended periods of time together behind a locked bedroom door. Cancienne v. Cancienne, 384 So.2d 843 (La.App. 4th Cir.1980), writ denied 392 So.2d 668 (La.1980).

It should be clear that the court is very much aware of the difficulty of, and possibly the danger involved in, proving adultery by direct evidence. However, in the absence of corroborative evidence, such as that specified above and in light of the very weak testimony of plaintiff’s witnesses, the mere fact that defendant stayed overnight on the same premises with “two men” on July 15, 1982, is not sufficient to prove a prima facie case of adultery. Seal v. Seal, 421 So.2d 421 (La.App. 1st Cir.1982); Jessen v. Jessen, 386 So.2d 953 (La.App. 3rd Cir.1980). The ruling of the trial court that there was sufficient evidence to prove adultery in this ease is clearly wrong.

For the foregoing reasons, the judgment of the trial court is annulled, vacated and set aside. The case will be remanded back to the trial court for further proceedings. The appellee is cast for the costs of this appeal. All other costs are to await a final determination on the merits.

VACATED AND REMANDED.

LOTTINGER, J., concurs and assigns written reasons.

LOTTINGER, Judge,

concurring.

I respectfully concur in the result.

The only allegations of adultery in plaintiffs petition are as follows:

“VI
“Since their marriage, defendant has been guilty of adultery.
“VII
“Petitioner’s wife’s adultery entitled petitioner to an immediate divorce from her.”

A default judgment must be based on admissible evidence, and in a default proceeding the pleadings cannot be expanded upon, Foltz v. Foltz, 197 So.2d 376 (La.App. 2nd Cir.1967) and Admiral Finance Company, No. 3 v. Mahoney, 121 So.2d 251 (La. App. 1st Cir.1960). Since plaintiff did not allege specific facts to support the allegation of adultery, plaintiff could not introduce any evidence leading to a conclusion of adultery.

Therefore, the judgment must be reversed and remanded.


text:
    Joseph MARYLAND v. FABCO INC., et al.
    No. 82 CA 1051.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22,1983.
    Gordon Hackman, Boutte, for plaintiff and appellant.
    Robert C. Leininger, Jr., Metairie, for appellees, Fabco Inc., and Mid-Continent Underwriters, Inc.

      Robert C. Stern, New Orleans, for appel-lee Florida Gas Transp.
    Raul R. Bencomo, New Orleans, for ap-pellees Karl J. McNabb, Elsce Bunet and Ray Robertson.
    Lawrence J. Ernst, New Orleans, for ap-pellee Dress Industries.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This devolutive appeal arises from a summary judgment granted in favor of defendant, Dresser Industries, Inc., in a suit for worker’s compensation and damages filed by plaintiff, Joseph Maryland.

The suit is the result of a slip and fall accident which plaintiff suffered at work on September 12,1977, causing a slipped inter-vertebrate disc and other ailments.

Plaintiffs original petition, brought against his employer, Fabco, Inc., and Mid-Continent Underwriters, Inc. demanded increased compensation benefits, the perpetuation of testimony, and payment of transportation expenses, penalties, and attorney fees. Plaintiff subsequently filed a supplemental and amending petition, demanding damages ex delicto from the original defendants, as well as from executive officers of his employer (Karl McNabb, Elsce Brunet, and Ray Robertson), Northwest Insurance Company, the insurer of Fabco and its officers, and a host of third parties (Dresser Industries, Inc., Glasscock Drilling, Inc., and Florida Gas Transmission Company and/or Florida Gas Exploration Company). Plaintiff averred that his injuries were caused by the negligence and intentional acts of the above defendants.

Following a number of pretrial exceptions and motions, a joint petition for judicial approval of a workmen’s compensation compromise was submitted by plaintiff and Fabco, Inc., its officers, and their insurer. The trial court rendered judgment approving the workmen’s compensation settlement, and subsequently a “Receipt, Release, and Indemnification Agreement” was entered into and made part of the record, releasing Fabco, Inc., its officers and employees, Mid-Continent Underwriters, Inc., and the Northwest Insurance Company “from any and all liability whatsoever arising out of the aforesaid accident, including, but not limited to, any and all liability for workmen’s compensation payments, medical expenses, pain and suffering, mental anguish, loss of earnings and earning capacity, whether past, present or future, whether known or unknown, and any and all other liability whatsoever arising out of the aforesaid alleged accident.”

Dresser Industries, Inc. (hereinafter “Dresser”) moved for summary judgment, arguing that the release of Fabco, its officers and insurers was executed without a reservation of rights against the remaining defendants, and that, under La.Civ.Code art. 2203 all the remaining defendants, including Dresser, were discharged. This motion was granted by the trial court, and Dresser was dismissed from the suit. The instant appeal followed.

The issue on appeal is whether a remission without reservation was made in favor of one or more parties solidarily liable, thereby entitling Dresser to discharge as a matter of law.

Plaintiff argues that the released parties were not “codebtors In solido ” with Dresser under La.Civ.Code art. 2203, since the only liability of the employer, its officers and its insurers was in workmen’s compensation, whereas Dresser’s liability is in tort. In Cripe v. Haynes, 350 So.2d 956 (La.App. 2nd Cir.1977), the court stated that the workmen’s compensation statute allows an entirely distinct cause of action for statutory benefits, regardless of fault on the part of the employer; thus, a party obliged to pay compensation is not solidarily liable with another party answerable in damages under La.Civ.Code art. 2315. Compare, in dicta, Dodge v. Central Louisiana Electric Company, 257 So.2d 802 (La.App. 3rd Cir.1972), writ ref. 261 La. 481, 259 So.2d 921 (1972).

La.R.S. 23:1032, the “exclusive remedy” provision, states that the employee’s right to compensation benefits is exclusive of all rights and remedies vis-a-vis the employer (even when the fault of the employer is the cause of the injury). However, although the employer is not fully answerable in damages, his compensation liability arises from the same set of facts that would result in tort liability against an at-fault third party. Recently in Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982), the Supreme Court stated that an uninsured motorist carrier is soli-darily liable by operation of law with a third-party tortfeasor, finding that each was compelled to repair the same damage, despite the differing sources of their obligations. Can the same be said of a tortfeasor and a party obligated to pay workmen’s compensation, since their respective obligations arise from the same facts?

We conclude it cannot. The employer’s obligation to pay benefits exists even when the injury is caused by the fault of no one; whether or not a third party is also liable in tort has no effect on the employer’s statutory responsibility, whereas the UM carrier’s contractual responsibility arises only if an uninsured or underinsured tortfeasor has caused the plaintiff-insured damage. Moreover, La.R.S. 23:1101 provides:

“When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as third person) other than those persons against whom the said employee’s rights and remedies are limited in Section 1032 of this Chapter, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under ■ this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.
“Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to such employee or his dependents.”

This statute re-affirms that the right to compensation benefits exists independently of the right to assert damages under La.Civ.Code art. 2315. For the employer and third-party tortfeasor to be solidarity liable, the payment of compensation benefits by the employer must extinguish the plaintiffs right to assert the same as elements of damages owed by the tort-feasor, La.Civ.Code art. 2091. Such an effect is impermissible under La.R.S. 23:1101. We thus agree with our brethren of the Second Circuit in Cripe, supra, that the employer (or compensation insurer) is not solidarity liable with a third-party tort-feasor.

However, this determination is not dis-positive of the case sub judice. We note that the amended petition filed by plaintiff alleged intentional acts on the part of the employer and executive officers, which, if proven, would result in tort liability against these defendants. La.R.S. 23:1032 (see Footnote 2, supra), Bazley v. Tortorich, 397 So.2d 475 (La.1981). The amended petition alleged plaintiffs injuries were caused by the negligence and intentional acts of all the defendants; thus, the defendants are alleged joint tortfeasors, solidarity liable as such. The agreement in the record unequivocally released the defendants named therein from any and all claims, not merely the compensation claim, including claims for pain and suffering, lost earnings, and medical expenses, which are elements of damages in tort claims. Thus, if there is no genuine issue of material fact as to the liability in tort of the released defendants, Dresser is entitled to discharge as a matter of law, La.Code Civ.P. art. 966.

Nonetheless, the pleadings and answers to interrogatories on file do not in any way demonstrate that plaintiffs injuries were caused by the intentional acts of the released parties. No affidavits setting forth facts admissible into evidence were submitted with the motion for summary judgment, La.Code Civ.P. art. 967, nor are any depositions on file in this matter. The allegation in plaintiffs petition that the negligence and intentional acts of all the defendants caused his injury does not suffice because it is not given the effect of a judicial confession, but is merely a fact placed at issue by the plaintiff. Raley v. Carter, 412 So.2d 1045 (La.1982). Without more, the trial court could not have determined that the released defendants committed intentional acts which caused plaintiffs injuries, and thus were joint tortfeasors who had been released without a reservation against Dresser.

The consolidated cases Guarisco v. Pennsylvania Casualty Co. and Leblanc v. Pennsylvania Casualty Co., 209 La. 435, 24 So.2d 678 (1945), involved wrongful death actions against a railroad company and a motorist’s insurer as the result of a car-train collision. The plaintiffs settled with the railroad company, which was released prior to trial without a reservation of rights as against the other defendant. The motorist’s insurer brought exceptions of no right of action and pleas in bar based on the compromise with and release of the railroad. In reversing the lower courts by overruling the exceptions and pleas, and remanding the cases to the trial court, the Supreme Court said:

“[UJnless and until it is satisfactorily shown that the damages sustained by the plaintiffs resulted from the joint negligence of the railroad company and the insured (making them liable in solido) the plaintiffs can prosecute their respective cases against the one believed by them to be responsible for the injury (in this case the insurer whose business it is to indemnify against such loss for compensation) and we know of no rule of law that would prohibit them from doing so.” 24 So.2d at 680.

See also Reed v. Rheem Manufacturing Company, 364 F.2d 810 (C.A. 5th Cir.1964).

The same approach was taken by the Supreme Court in Raley, supra, although a reservation of rights had been made. The court stated that for the remaining defendant to claim a reduction under La.Civ.Code art. 2203, supra, the burden of proving the negligence of the released defendants) was on that defendant remaining. See also, Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir.1964).

In the instant case, there are no facts extant in the record (as it now stands) to establish Dresser’s right to discharge as a matter of law; thus, summary judgment was improvidently granted. For Dresser to assert its right to discharge under La.Civ. Code art. 2203, Dresser must, before or during trial, establish that the released defendants were liable in tort for the plaintiff’s injuries.

Therefore, for the above and foregoing reasons, judgment of the trial court in favor of defendant, Dresser Industries, Inc., and against plaintiff, Joseph Maryland, dismissing plaintiff’s suit at his costs, is hereby reversed, and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion. Costs of this appeal are assessed to defendant-appellee; assessment of costs in the trial court await disposition therein.

REVERSED AND REMANDED.

      . La.Civ.Code art. 2203:
      “The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
      “In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.”

      . La.R.S. 23:1032 reads:
      “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      “Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      “The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

      . La.Civ.Code art. 2091 reads:
      “There is an obligation in solido on the part of the debtors, when they are obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.”