author: PONDER, Judge.

text:
    Booker T. LOTT v. Roosevelt LANDOR, et al.
    No. 83 CA 0879.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Writ Denied Oct. 12, 1984.

      Bernard S. Smith, Covington, for plaintiff, appellant.
    Christopher M. Moody, Hammond, for defendant, City of Covington, appellee.
    Plauche P. Villere, Jr., New Orleans, for defendant, State of La., appellee.
    Margaret Kern, Covington, for defendant, Roosevelt Landor, appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff appealed the dismissal of his suit for damages against defendants, City of Covington (City) and the State of Louisiana (State), on exceptions of no cause of action. The sole issue is whether the allegations of negligence in the performance of their duties are sufficient to state a cause of action against either defendant.

We reverse in part and affirm in part, and remand.

Plaintiff originally filed suit for damages against his landlord, Roosevelt Landor, and Landor’s insurer, alleging that he was injured in a fire in a residence owned by Landor, in which plaintiff was a tenant. Plaintiff alleged that he was injured because his only avenue of escape from the fire, a rear door, had been sealed.

In a supplemental and amending petition, plaintiff added as defendants the City and State, as well as an alleged co-owner of the residence. The City and State filed exceptions of no cause of action, which were sustained by the trial court. The pertinent allegations in plaintiff’s supplemental and amending petition are:

“14.
“Further, the defendants City of Cov-ington and State of Louisiana are liable in solido with defendants Roosevelt Lan-dor and Veronica Batiste for the injuries sustained by plaintiff for their fault and negligence.
“15.
“The City of Covington was at fault and negligent for the following reasons:
“a. in failing to inspect the building and thus allowing it to become a death trap and life-threatening hazard for plaintiff and persons so. similarly situated;
“b. in failing to take any, or alternatively reasonable, efforts to insure plaintiff and other tenants of the building could lodge there in relative safety from fire and to insure all exits were open;
“c. in failing to investigate the cause of the fire and make a reasonable determination of its origin as required by law;
“d. in giving favored or preferential treatment to defendants Roosevelt Landor and Veronica Batiste in their running of various hotels, boarding houses, or apartments within the City such as the building here in question, the place known as Landor’s Manor on 31st Street, and the place known as Landor’s Apartments facing Taylor Street which permitted defendants Roosevelt Landor and Veronica Batiste to operate hotels, boarding houses, or apartments free of inspection for fire hazards, free of commercial billings for water, garbage, and sewage, and free of occupational licenses;
“f. in failing to make any efforts to even determine the entire operation of defendants Roosevelt Landor and Veronica Batiste with respect to their running of hotels, boarding houses, or apartments within the City and make them comply with all health and safety laws of the City and State;
“g. in failing to enforce the Fire Prevention Code or other codes as enacted by the City;
“h. in violating the Covington City Code in permitting or maintaining violations of the Covington Fire Prevention Code as adopted in February 1980, and in failing or refusing to comply with co-dal provisions mandating enforcement of the Covington Fire Prevention Code;
“i. in doing other acts of fault and negligence that will be brought out at the trial of this case.
“16.
“The Department of Public Safety was at fault and negligent for the following reasons:
“a. in failing to inspect the building and thus allowing it to become a death trap and life-threatening hazard for plaintiff and persons so similarly situated; “b. in failing to take any, or alternatively reasonable, efforts to insure plaintiff and other tenants of the building could lodge there in relative safety from fire and to insure all exits were open;
“c. in failing to investigate the cause of the fire and make a reasonable determination of its origin as required by ' law;
“d. in failing to make any efforts to even determine the entire operation of defendants Roosevelt Landor and Veronica Batiste with respect to their running of hotels, boarding house, or apartments within the City and make them comply with all health and safety •laws of the City and State;
“e. in failing to enforce the state laws and regulations dealing with fire prevention and protection;
“f. in failing to take all steps necessary and proper to protect the life of plaintiff from the hazards of fire and panic;
“g. in doing other acts of fault and negligence that will be brought out at the trial of this case.”

The exception of no cause of action raises the question of whether the law affords any remedy to the plaintiff under the allegations of the petition. Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1st Cir.1980). The validity of the exception must be decided solely upon the face of the plaintiff’s petition and any attached documents, and all well-pleaded allegations of fact contained therein must be accepted as true. Mott v. River Parish Maintenance, Inc., 432 So.2d 827 (La.1983). The exception must be overturned unless the allegations affirmatively establish that under no facts admissible under the allegations of the petition does the plaintiff state a cause of action. Landry v. Landry, 339 So.2d 360 (La.App. 1st Cir.1976), writ denied, 341 So.2d 900 (La.1977).

Plaintiff in this case relies upon LSA-R.S. 40:1563(A) and (B), which he argues imposed a statutory duty upon defendants to inspect the structure in which he resided for certain fire hazards and that their negligent failure to perform that duty created a cause of action in his favor to seek damages for the injuries he suffered as a consequence.

Defendant State argues that: (1) the City has assumed all responsibility under that statute, pursuant to LSA-R.S. 40:1563(C); both the State and City argue that: (2) the statute does not impose anything more than a general duty to the public at large, breach of which cannot be used as a cause of action in damages by an individual, and (3) even if a specific duty to the plaintiff were found, the structure which burned was a single family, private dwelling, exempt from the scope of the statute.

Plaintiff does allege, in his supplemental and amending petition, that the City has enacted a Fire Prevention Code and that the City violated certain of its provisions. However, plaintiff made no allegation that the City has established a Fire Prevention Bureau in compliance with the terms of subsection (C) of § 1563. Absent an allegation to that effect, plaintiff has failed to state a cause of action against the City. However, the record reveals that the trial court dismissed plaintiffs suit on the exceptions without affording him an opportunity to amend his pleadings. Since the grounds of the City’s objection of no cause of action may possibly be removed by amendment, we remand for the purpose of allowing plaintiff that opportunity.

However, whether the City has indeed relieved the State of its responsibility under the statute in question is a defense which the State cannot raise on an exception of no cause of action.

Both defendants argue that plaintiff has no cause of action because the duties which plaintiff alleges were breached (and which allegedly caused his injuries) are owed to the general public and not to the plaintiff as an individual. In support of this “public duty doctrine”, defendants cite Dufrene v. Guarino, 343 So.2d 1097 (La.App. 4th Cir. 1977), writ denied 343 So.2d 1068 (La.1977), in which the court held that city and state governmental officials and agencies, charged with a duty of inspecting buildings for fire hazards, were not liable for damages incurred in a fire on premises where no inspection had been made, or where inspection had been improperly made, and fire hazards were allowed to exist. The court reasoned that the duty to inspect was imposed to protect the public generally, and that no duty was owed individually to any persons who may subsequently be injured as a result of the fire hazards.

Defendants claim that the continuing validity of the public duty doctrine was affirmed by the Louisiana Supreme Court in Stewart v. Schmieder, 386 So.2d 1351 (La.1980). In that case, the high court cited Dufrene but noted that the public duty doctrine had come under considerable attack in recent years. The court seemed to question the continuing validity of the doctrine by listing several instances in which it had held governmental entities or public officials liable “for the breach of duties which, at first blush, appear to be owed to the public rather than any individual.”

Nevertheless, the court did not expressly repudiate the public duty doctrine, nor did it expressly overrule Dufrene. Instead, the court appeared to approve of an exception to the doctrine which has been applied in other jurisdictions, and applied it to the facts of the case to hold the City-Parish Government of Baton Rouge liable for having breached its “special duty” to examine plans for a proposed construction project, and thereby causing deaths and injuries to workmen at the site.

The court found that statutory provisions imposed upon the defendant a special duty to ensure that construction, allowed pursuant to a building permit issued by the defendant, was carried out safely. Therefore, the court stated:

“... it is irrelevant whether the ‘public duty doctrine’ would exculpate the building official from liability for breach of those broader duties which may more properly be considered to be owed to the public in general.” (p. 1358)

In the instant case, R.S. 40:1563 invests the fire marshal with specific duties, including the supervision of “the construction and maintenance” of emergency fire exits and “the inspection of all structures, except the interior of private homes and movables, for the purpose of reducing or eliminating fire hazards.” In light of the position taken by the court in Stewart v. Schmieder, we conclude that breach of the statutory duty imposed in this instance may be the basis of a cause of action in damages by the plaintiff.

Plaintiff alleged that the building in which he resided and was burned was being run as a “hotel, motel, boarding-house, or apartment house.” These allegations must be accepted as true. Mott, supra. Accordingly, defendants’ assertion that the building in question was a private, single-family dwelling exempt from statutory coverage cannot serve to defeat plaintiff’s suit on an exception of no cause of action.

Accordingly, for the foregoing reasons, we affirm the trial court’s judgment dismissing plaintiff’s suit against the City, but reverse that portion of the judgment dismissing plaintiff’s suit against the State and remand for further proceedings consistent with this opinion.

REVERSED IN PART, AFFIRMED IN PART, REMANDED AND RENDERED.

      . The other codefendants, Landor and Veronica Batiste, did not file exceptions. The State additionally filed a motion for summary judgment, which was argued and submitted to the trial court. No ruling on the motion is in the record.

      . LSA-R.S. 40:1563, in pertinent part, provides:
      “A. The fire marshal shall take all steps necessary and proper to protect life and property from the hazards of fire and panic which may arise from fire or from the threat of fire or explosion.
      B. Specifically, the fire marshal shall supervise through his own office, except in those jurisdictions in which local governing authorities have established fire prevention bureaus, the following:
      (1) The construction and maintenance of exits, including fire escapes, exit doors and emergency lighting.

      (4) The inspection of all structures, except the interior or private homes and movables, for the purpose of reducing or eliminating fire hazards."

      . Subsection (C) provides, in pertinent part:
      "Within the jurisdiction of any local governing authority in which a fire prevention bureau has been properly established, ... the local governing authority through its fire prevention bureau shall be responsible for conducting fire inspections and investigations necessary to enforce the provisions of Paragraphs (1), (2), (3), and (4) of Subsection B of this Section, ...”

      . The court noted: “For example, the maintenance of highways and streets by the state and local governments is an undertaking that benefits the general public and is not carried out for any particular individual. Nevertheless, we have not hesitated to find the state or local entities liable for failure to maintain the streets and highways in a reasonably safe condition. United States Fidelity & Guaranty Co. v. State of Louisiana, Through the Dept. of Highways, 339 So.2d 780 (La.1976); Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975); Vervik v. State of Louisiana, Dept. of Highways, 302 So.2d 895 (La.1974). Similarly, the incarceration of criminals would appear to be a duty owed to the public in general, but when the custodian’s negligence in allowing an escape causes injury to an individual, the custodian may be held liable. Frank v. Pitre, 353 So.2d 1293 (La.1978). Furthermore, in Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971), we held that a city might be held liable for the wrongful performance of a duty in many respects similar to that of the issuance of building permits. In that case we held that the plaintiffs allegation that the city had authorized the creation of new subdivisions, with the knowledge that such authorization would cause flooding, thereby increasing the plaintiffs peril of flooding, stated a cause of action.
      Therefore, under the jurisprudence of this state, the mere fact that a duty is of a public nature, and benefits the general public, does not require a conclusion that the city cannot be found liable for the breach of that duty.” (emphasis added)

      . In the cases which have applied this 'exception', liability has been founded upon the violation of a duty that would generally be considered owed to the public, when the statute or ordinance setting forth the duty indicates, by its language, that the duty is designed to protect a particular class of individuals, of which the plaintiff(s) are members. See the cases cited in Stewart v. Schmieder. An early Louisiana case, Serpas v. Margiotta, 59 So.2d 492 (Orleans App. 1952) implicitly applied the exception to render liable the City, whose dogcatcher refused to capture a rabid dog, for the death of plaintiff's child by rabies.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Johnnie ROBISON d/b/a Robison Fence Co. v. Fly-Ro JARREAU.
    No. 83 CA 0943.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Joel B. Dickinson, Baton Rouge, for plaintiff-appellant.
    Michael E. Parks, New Roads, for defendant-appellee.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this case is whether or not the parties to a contract intended the contract to be one with a term.

These are the facts giving rise to this litigation. Defendant, Leslie “Fly-ro” Jar-reau, contacted Robison Fence Company concerning the erection of a fence around his residential swimming pool located in Lakeland’ Louisiana. On April 7, 1982, Ro-bison’s salesman, Joseph Janis, visited Mr. Jarreau at his residence in order to discuss the fence. A contract was signed wherein Robison Fence agreed to provide a chain link fence with aluminum slats for a total price of $1,832.75. The contract was signed by Mr. Jarreau and Mr. Janis, and contained the following language:

“NO CONDITIONS, AGREEMENTS OR STIPULATIONS, VERBAL or OTHERWISE, save those mentioned above shall be recognized.
* * * * ¡: *
“If contract is cancelled a 25% charge of the total contract price will be charged.”

Mr. Janis also executed a separate document, entitled “Completion Certificate.” On this paper he provided information concerning the type of materials to be used and drew a sketch of the area to be fenced. At the top of the page was a space for “Estimated Start Time.” That space was left blank and an arrow was drawn to another space which read “Date Set.” In that blank Mr. Janis had written “Apr. 14, 82.” In the blank beside the words “Date Comp.” he wrote “Apr. 19, 82.” Other information was also provided, such as the total footage of fence and the number of gates.

The posts were set sometime on or about April 14, 1982, but the fence had not been completed by April 19. Sometime shortly thereafter Mr. Jarreau telephoned Mr. Ro-bison and cancelled the contract. Robison Fence filed suit.

In its petition, Robison Fence prayed for $834.59 for labor and material expended on the project, $458.19 (25% of the total contract price) as a penalty for cancellation, reasonable attorney’s fees, court costs and interest. After trial on the merits judgment was rendered in favor of defendant and plaintiff’s case was dismissed. The court found the parties had intended the contract to be one with a “term." La.Civ. Code art. 2048. The trial court cited La. Civ. Code art. 2057 and held that since the contract had not been completed by the expiration of the term (i.e!, by April 19, 1982), Mr. Jarreau was justified in cancel-ling. Robison Fence filed this appeal.

Appellant raises three errors on appeal but in essence makes one main argument: the court erred in concluding the contract was one with a term. More specifically, the court erred in considering the “completion certificate” to be a part of the contract since such certificate was not signed by the parties. Appellant points out there is no mention of a completion date on the face of the contract itself.

In reasons for judgment, the trial court stated the initial issue to be decided was whether or not the completion certificate was a part of the contract. The court cited La.Civ.Code art. 1945 which states in part that courts must give legal effect to contracts “according to the true intent of all the parties.” The court found it had been proven the parties intended the contract to be for a fixed term, terminating April 19, 1982.

We disagree with this factual finding of the trial court. Mr. Janis testified the completion certificate was for the benefit of the work crew. The crew was to use the technical information provided on the certificate when installing the fence. However, even assuming the certificate was intended to be a part of the contract, we must still ascertain what was meant by the words “Date Comp. Apr. 19, 82.” When the meaning of words in a contract is doubtful, we must attempt to ascertain the common intent of the parties, rather than rely on the literal meaning of the words. La.Civ.Code art. 1950.

In determining whether or not the parties intended for the contract to be one that was valid only until April 19, 1982, we must examine the circumstances surrounding the perfection of the agreement.

Mr. Janis testified that the “completion date” was merely an estimated date in that (as he explains to all customers) the erection of a fence is always contingent upon the weather. “Date set” meant the date the posts were to be set into the ground. He stated he gave a copy of both documents to Mr. Jarreau.

A close examination of Mr. Jarreau’s testimony reveals he was unaware of a specific “completion date.” It is true he was concerned with having a fence built in a speedy manner. He stated he asked Mr. Janis at their initial meeting when the fence would be started and when it would be completed. However, Mr. Jarreau did not testify Mr. Janis ever promised the fence would be completed by April 19. Mr. Jarreau’s testimony concerning the various dates shows he was confused about this issue. The contract was perfected on Wednesday, April 7, 1982. Mr. Jarreau stated Mr. Janis promised the fence would be started “Wednesday and he’d be finished by Friday or maybe Monday, which was [Monday] the 12th, not the 14th.” This cannot be accurate because it would involve the fence company starting work the same day the contract was entered into and finishing work prior to the date the posts were scheduled to be set.

Further evidence of Mr. Jarreau’s lack of knowledge of the completion date was apparent when he was questioned about the completion certificate. When asked if he had ever seen that document, he responded he had. When questioned further about the information supplied in the document (i.e., the various dates) he elaborated as follows:

“I remember the drawing of the pool area. That was filled in, and I’m sure the rest was, too, but I just, you know, I didn’t look at all of that. The main thing I was concerned with was the drawing of the pool area where the fence was going to go. I didn’t look at hardly anything else.” (Emphasis added.)

Mr. Jarreau could not specify as to what date the posts were set, although he was certain they were not set by April 14. He waited approximately a week after the day the work was to have begun and then called Robison Fence to find out the cause of the delay. When the' fence still was not started within the following few days, he phoned the fence company again and spoke to Johnnie Robison. Robison promised him the truck was loaded and work would begin immediately. That same afternoon most of the posts were set. Mr. Jarreau testified he waited “another bunch of days,” no further work was done, so he called and cancelled.

Counsel for defendant asked defendant if the posts had been set by the date the contract was to have been completed. Mr. Jarreau responded: “No. What day does the contract say it was supposed to be completed?” Mr. Jarreau testified he did not receive a copy of the completion certificate. He admitted he had signed the contract although he did not read it.

A reading of the pleadings and the testimony in this case, when taken as a whole, reveal Mr. Jarreau failed in his burden of proving the parties intended the fence to be completed by April 19, 1982. His testimony showed he wanted the fence to be built within a reasonable time and that he was aggravated by the fence company’s delays in beginning and completing the job. However, nowhere in his testimony does he state he intended the fence to be completed by a certain date or that Mr. Janis assured him it would be completed by a “deadline.” He admitted he did not read the information provided in the completion certificate (including the date) and that he was concerned only with the drawing of the pool area.

Since we conclude the parties did not intend the contract to be one with a term, we must then determine if Robison Fence Company failed to perform the contract during a “reasonable time period,” in light of the circumstances. See, Owens v. Robinson, 329 So.2d 766 (La.App.2d Cir.1976); Richard v. Foods and Services, Inc., 162 So.2d 213 (La.App. 1st Cir.1964), writ denied 246 La. 347, 164 So.2d 351 (1964).

There was some dispute at trial over the precise date of cancellation. Mr. Robison testified unequivocally that Mr. Jarreau cancelled the contract on April 20, 1982. He stated the crew was not able to complete the fence on April 19 because it had been raining. A letter written by counsel for Robison Fence to Mr. Jarreau’s attorney stated the contract was cancelled on April 23. Mr. Jarreau was not certain about the date of cancellation although he felt sure it was sometime after April 20. Based on Mr. Jarreau’s own testimony concerning the approximate lapse of time between the three phone calls he made to Robison Fence, the cancellation was at most a week and a half beyond April 19. We do not find this to be so unreasonable a delay as to justify cancellation. Therefore, since Mr. Jarreau was not justified in can-celling the contract, the penalty clause of the contract applies and plaintiff is entitled to recover 25% of the contract price or $458.19, plus legal interest from date of judicial demand. The contract also calls for reasonable attorney fees in the event legal action is required; therefore, we award $200 attorney fees to plaintiff’s attorney.

As regards plaintiff’s demand of $834.59 for labor and materials expended on the job, we note the larger part of that sum is allocated for the fencing slats still in the possession of plaintiff and which, presumably, can be utilized by plaintiff for another project. Under this circumstance, we do not consider the contract to contemplate the award to plaintiff of both the contractual penalty and the sum expended on the job. The tenor of the contractual relationship between the parties in this case demonstrates the penalty provision is to protect plaintiff from loss and not to impose punitive damages upon the defendant.

For the foregoing reasons,

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Johnnie Robison, d/b/a Robison Fence Company, and against Fly-ro Jar-reau, for the sum of $458.19, plus legal interest thereon from date of judicial demand until paid; and that there be further judgment in favor of Johnnie Robison, d/b/a Robison Fence Company, and against Fly-ro Jarreau for $200, representing attorney fees. All costs of court at both the trial and appellate levels, are assessed against defendant.

REVERSED AND RENDERED.

      . Art. 2048. “The time given or limited for the performance of an obligation, is called its term."

      . Art. 2057:
      "Where a term is given or limited for the performance of an obligation, the obligor has until sunset of the last day limited for its performance, to comply with his obligation, unless the object of the contract can not be done after certain hours of that day.”

      . We note although Mr. Jarreau was the defendant in this suit, he had the burden of proving by a preponderance of the evidence that he was justified in cancelling the contract.


author: COVINGTON, Judge.

text:
    Prince LEWIS v. EAST FELICIANA PARISH SCHOOL BOARD.
    No. 83 CA 0949.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Writ Denied Oct. 12, 1984.

      J. Arthur Smith, III, Baton Rouge, for plaintiff-appellant.
    John F. Ward, Jr. and Robert L. Ham-monds, Baton Rouge, for defendant-appel-lee.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This matter comes before this Court on a second appeal from the judgment of the trial court in favor of the defendant, East Feliciana Parish School Board, upholding the decision, after hearing, of the School Board to dismiss plaintiff, Prince Lewis, from his position as a tenured teacher.

When this- matter first came before this Court, we upheld the trial court’s refusal to give the plaintiff a trial de novo on his appeal to the district court from the adverse decision of the school board, but we found the trial court in error in its refusal to permit the plaintiff to present additional evidence. Accordingly, this Court set aside the judgment and remanded the case to the trial court so that the plaintiff might introduce such additional evidence as he wanted to introduce, with the school board being given an opportunity to negate or rebut the additional evidence presented by the plaintiff. We cautioned that the plaintiff’s right to offer additional evidence was not unrestricted, and that the plaintiff was not permitted to duplicate the testimony which had already been heard by the school board. We instructed the trial judge that, after hearing the “additional evidence,” he should then decide the case using the standard of review set forth in Howell v. Winn Parish School Board, 332 So.2d 822, 824 (La.1976), as follows:

Despite this provision for a full hearing before the district court, the standard of judicial review of a school board’s action is still whether there is a rational basis for the board’s determination supported by substantial evidence insofar as factually required. In such cases, the reviewing court must neither substitute its judgment for the judgment of the school board nor interfere with the board’s bona fide exercise of discretion. Lewing v. De Soto Parish School Board, supra [238 La. 43, 113 So.2d 462]; State ex rel. Rathe v. Jefferson Parish School Board, 206 La. 317, 19 So.2d 153 (1944); Simon v. Jefferson Davis Parish School Board, 289 So.2d 511 (La.App. 3d Cir.), writ denied 293 So.2d 178 (La.1974); Jennings v. Caddo Parish School Board, 276 So.2d 386 (La.App. 2d Cir.1973). Thús in the instant case, this Court will limit its inquiry to a determination of whether the action of the school board was (1) in accordance with the authority and formalities of the Louisiana Teachers Tenure Act, and (2) supported by substantial evidence, or conversely, an arbitrary decision and thus an abuse of discretion. Lewing v. De Soto Parish School Board, supra; Celestine v. Lafayette Parish School Board, 284 So.2d 650 (La.App. 3d Cir.1973); Moffett v. Calcasieu Parish School Board, 179 So.2d 537 (La.App. 3d Cir.1965).

After the matter was remanded to the trial court, the plaintiff moved to remand the ease to the school board for it to hear additional evidence on his behalf. This motion was properly denied. The matter was then taken up by the trial court. The additional evidence presented by the plaintiff consisted of the testimony and evidence of a polygraph examination and two psychologists. The former attorney for the plaintiff testified in proffer, and the defendant presented a polygraph expert.

The trial court, after considering the totality of the evidence, concluded that the decision of the school board to dismiss this tenured teacher was supported by substantial evidence. The court found that the board’s decision was neither capricious or arbitrary nor an abuse of discretion. Mr. Lewis was given a “full hearing” to review the action of the school board.

In our previous decision, we ruled that the action of the school board was in accordance with the authority and formalities of the Louisiana Teachers Tenure Act, LSA-R.S. 17:443; that Mr. Lewis was accorded the procedural safeguards contained in the statute and that he was not denied due process of law in his hearing before the school board. 372 So.2d at 652. We will not reconsider that ruling.

We now address the basic issue presented in this appeal, whether the trial court erred in its conclusion that the decision of the school board was supported by substantial evidence, and the decision was not arbitrary, capricious or abuse of discretion.

The record of the hearing before the school board, and the transcript of the testimony and evidence presented to the trial court, including the “additional evidence,” reveal the following:

Prince Lewis, the appellant herein, was a fifth grade teacher at Clinton Lower Elementary School. On February 20, 1976, one of his students, who is named in the proceedings but will not be named in this opinion, needed to take a make-up test. Mr. Lewis had her sit in the hall outside the presence of the other students to take the test. While taking the test, the student (who was 11 years old) was approached by her teacher. It was later revealed that Mr. Lewis placed his hand extremely high up on the inner part of her upper thigh and made a rubbing movement. The child, very upset, ran to the school office and reported the incident. Her condition was described as tearful, almost hysterical.

An investigation into the matter was promptly made. During the course of the investigation, James Soileau, the school superintendent, received complaints from the parents of other young female students, in the 10 and 11 year age group, who were in the fifth grade class taught by Mr. Lewis. In each complaint, Mr. Lewis was accused of having placed his hands on or very near the private parts of the body of the particular child.

The investigation led to a tenure hearing to determine the truth or falsity of the charges made against the teacher. At the hearing, each of the young female students testified specifically as to exactly where and when the plaintiff committed the particular act of misconduct with which he was charged. Counsel for the plaintiff cross examined the children about the incidents. In addition, the mother of each child testified that her daughter had related the misconduct of Mr. Lewis, either on the day of the occurrence of the incident or shortly thereafter. The testimony indicated that the little girls were ashamed, embarrassed or scared, at first, to tell their mothers of the acts of the plaintiff.

Superintendent Soileau also testified at the tenure hearing, to the charges having been made against the teacher, Prince Lewis, and of having made an investigation into the matter. Wendell H. Hall, Superintendent of Schools for West Feliciana for many years, qualified as an expert in the field of education and school system administration, and testified that the misconduct of a male teacher toward young female students, such as that alleged to have been committed by Mr. Lewis, would, if true and established, constitute wilful neglect of duty as a teacher and adversely affect the teacher’s competency in the classroom.

At the tenure hearing, Mr. Lewis denied the charges made. He also offered several character witnesses in his behalf. Plaintiffs offer to present the testimony by deposition of a child psychologist (which had not then been taken) was not allowed. The record shows that near the end of the lengthy hearing, counsel for plaintiff requested a continuance for the stated purpose of allowing him to retain and depose a child psychologist. The continuance was refused. At the conclusion of the evidence, the school board found Mr. Lewis guilty of the charges made, and ordered his dismissal from his position as á tenured teacher.

The case then began its course for judicial review, which we have mentioned above. The additional evidence presented by the plaintiff at the review hearing in the trial court on remand was, as follows:

1. A proffer by Mr. Lewis’ former attorney regarding due process.

2. Testimony of a psychologist, Fred Tuton, who examined Mr. Lewis on November 23, 1982, about six years after the incidents in question.

3. Testimony of Dr. Tom Stigall, Ph.D., psychologist, whose report was made in 1980, some four years after the incidents.

4. Testimony of Max Glasgow, a polygraph examiner who conducted a polygraph examination of Mr. Lewis on May 21, 1980, about four years after the incidents.

As stated above, the issue of due process has been previously decided by this Court, so the testimony of former counsel on this point is not properly before the Court. There is, moreover, nothing to suggest that the attorney's testimony is “additional evidence” which the plaintiff was not allowed to present to the school board or the trial court at the first review hearing.

Mr. Tuton, who examined Mr. Lewis some six years after the incidents, conducted a clinical interview of Mr. Lewis, and administered a number of psychological tests: WAIS, basically an intelligence test and which indicated that Mr. Lewis was of “Average Intelligence (Full Scale 99);” Bender Motor Gestalt and Draw-a-Person tests, basically tests to rule out brain damage or lag in motor development and which were essentially normal; Rorschach and MMPI tests, basically tests dealing with personality and a determination of sexual deviation and which revealed no evidence of sexual deviation; and certain other psychological tests.

Mr. Tuton was of the opinion that Mr. Lewis displayed no signs of mental disorder at the time of his evaluation. This opinion was based only “in the context of the personality profile,” no social history or social investigation of past problems having been performed on Mr. Lewis. Mr. Tuton further testified that an incident occurring in 1976 might not be reflected in a psychological examination conducted in 1982, and that it was possible for Mr. Lewis to have committed the acts with which he was charged.

The trial court summarized Mr. Tuton's testimony as:

“... [I]t must be said that Mr. Tuton's expert testimony was favorable to Mr. Lewis. His conclusions were based on professionally accepted tests and methods of evaluation. His subjective interpretation, however, must be weighed in consideration of the fact that he was not afforded the perspective of a social history from independent sources, nor the benefit of reading and studying the transcript, nor his presence at the initial hearing. It cannot be said, however, that his findings, conclusions, and opinion exclude the possibility of the proscribed conduct of which Mr. Lewis was accused, and for which the initial fact finding body found he had so performed.”

Dr. Stigall, an expert psychologist, rendered his report about four years after the incidents. He reviewed the transcript of the tenure hearing, the polygraph examination made by plaintiff’s polygraphist, and made a survey which revealed certain generalities as to influence by reference groups, peers, church groups, family, neighbors, factors affecting conformity, peer pressure in age groups 9-15, suggestibility and degree of influence between parent and child.

Dr. Stigall, from his study, reached three possibilities or alternative conclusions:

1. No touching had occurred and there was a conspiracy to harm Mr. Lewis.

2. Mr. Lewis innocently touched the female students but such physical contact was misinterpreted and exaggerated by the students or they began to attach undue significance to the contacts because of parental and peer pressure.

3. Mr. Lewis had indeed committed the acts as charged.

Dr. Stigall was of the opinion, based on his assumption that the polygraph results were accurate, that the “realistically plausible explanation” was that innocent contact with the students had been made which had become exaggerated or blown out of proportion, or misinterpreted.

He testified that his opinion would be affected if the polygraph results were inaccurate, and that it was possible that the young girls were telling the truth. He did not examine the girls or Mr. Lewis, but merely read the record, considered the polygraph results and ran a literature survey. In summation, Dr. Stigall offered the benefit of his expert knowledge based on the record, considering the phenomena that might have affected the complaining witnesses. The trial court did not accept Dr. Stigall’s opinion as conclusive in arriving at its decision. We agree with the trial court. The school board directly observed the tenure hearing confrontation between the students and the teacher, heard the testimony of the witnesses and observed their de-meanors. From its vantage point, the school board was in a better position than the courts to judge the nature and location of the physical contacts between teacher and students, to ascertain the general credibility of the witnesses and to determine the effect of their susceptibility to social influence, peer pressure, parental pressure and other related susceptibilities. Neither the psychologists nor the trial judge had an opportunity to observe the complaining witnesses or the plaintiff as they testified at the tenure hearing, or on any other occasion.

The third witness called by the plaintiff was Max Glasgow, a polygraphist. Although the defendant objected to the introduction of polygraph evidence, this objection was effectively waived at the trial. Writs were not applied for and defendant has neither appealed nor answered the plaintiff’s appeal, so the issue of the admissibility of polygraph evidence is not before this Court. In the case at bar, the plaintiff presented the testimony of the polygra-phist who gave the polygraph test to Mr. Lewis about four years after the incidents in question, on May 21, 1980. The defendant countered with its own polygraph expert, who, while not conducting an actual polygraph examination, gave his interpretation and critique of the one conducted by Mr. Glasgow. Considering both experts’ opinions, the trial judge found that the results of the polygraph examination were “inconclusive.” Our review of the record and the evidence of the polygraph and poly-graphists leads us to the same conclusion.

After reviewing all of the evidence in the record and the applicable law, we affirm the judgment of the trial court.

We agree with the finding of the trial court that:

“... [T]he totality of evidence in this cause does not merit that the decision of the School Board be reversed. That decision does not cease to be based on substantial evidence. It has not been found to be arbitrary or capricious and is affirmed.”

There is in the record a rational basis for the school board’s determination supported by substantial evidence insofar as factually required. As a reviewing court of a reviewing court, we are neither permitted to substitute our judgment for the judgment of the school board nor to interfere with the board's good faith exercise of discretion. See Sampson v. Lincoln Park School Board, 439 So.2d 454 (La.App. 2nd Cir.1983).

For the reasons assigned, we affirm the judgment of the trial court affirming the action of the school board in dismissing plaintiff from his position as a tenured teacher, at appellant’s costs.

AFFIRMED.

      . Lewis v. East Feliciana Parish School Board, 372 So.2d 649 (La.App. 1st Cir.1979), writ denied 375 So.2d 959 (La.1979).


text:
    Charles HURSTON, et al. v. NORTHLAKE INVESTMENT CORPORATION.
    No. 83 CA 0957.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Clint L. Pierson, Jr., Covington, for plaintiff, appellee.
    Richard L. Muller, Mandeville, for defendant, appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this case is whether, under then existing law, the trial court erred in vacating, ex parte, its prior order granting a jury trial; and, in ordering the case be set for trial without a jury. The action was taken because the party requesting the jury trial failed to post timely the required bond. Concluding the trial court did not err in this instance, we affirm.

This case involves a suit on a note. The facts are not pertinent to the issue at hand and therefore we will not expound upon them in any detail. Plaintiffs, Charles Hurston and his wife, Henrietta Keller, filed suit against defendant, Northlake Investment Corporation, attempting to enforce an “acceleration clause” in a promissory note and asking for recognition of a special mortgage and vendor’s lien. Defendant asked for a jury trial in its answer to the suit. The trial court signed an order on August 27, 1981 granting the jury trial upon defendant furnishing bond in the amount of $3,500 to cover the additional cost of the jury. On August 31, 1981, the Clerk of Court’s office sent a notice to both of defendant’s attorneys of record, advising the bond had been set in the specified sum. On April 5, 1982, plaintiffs filed a “Motion To Set For Trial.” At the bottom of the document, deputy clerk, Jill S. Hunt, typed the following note:

“Dear Mr. Pierson, [attorney for plaintiffs]
“Please be advised that Jerome Lipsich [attorney for defendant] has requested a Jury Trial and as of this date he has not filed a bond, therefore I am unable to set this matter for trial.”

Thusly, counsel for plaintiffs was advised of the problem.

On April 20, 1982, pursuant to a motion filed April 14, the court permitted both law firms representing defendant to withdraw as counsel. On April 27 the law firm of Muller & Jumonville sought recognition as counsel for defendant. By order of May 12 this was permitted. On August 11 counsel for plaintiffs again filed a “Motion To Set For Trial.” On September 3 the deputy clerk again advised counsel for plaintiffs the jury bond had not been filed and, therefore, the case was not ready for trial. Asserting that under La.R.S. 13:3050 the party requesting a jury trial must provide the bond within 60 days of the clerk’s notice of the signing of the jury trial order, on January 31, 1983 plaintiffs moved to vacate the order for a jury trial. In the same motion plaintiffs asked that the case be set for trial without a jury. The court, ex parte, granted the motion on February 7.

On February 18, 1983, counsel for defendant filed a “Motion to Vacate Order Vacating Jury Trial.” Defendant alleged it was entitled to a hearing on the matter because the failure to provide the jury bond was a result of the change in counsel. A hearing was held and on May 5 the court denied the motion. Defendant then filed this appeal contending essentially it had relied upon prior counsel to post the necessary bond and they had failed to carry through their responsibilities.

During the time period in question, the applicable statute, La.R.S. 13:3050, read in pertinent part as follows:

“In all civil cases in which a jury is prayed for and allowed, the party praying for the jury shall give bond in favor of the parish for such amount as may be determined by the judge to cover the cost of the jury, which cost shall be taxed as provided for in Louisiana Code of Civil Procedure Articles 1920 and 2164. No jury shall be ordered in any civil case unless the bond is given. The clerk of court shall give immediate notice by certified mail to all parties of the signing of the order allowing the trial by jury. The party who prayed for the trial by jury shall give the required bond within sixty days of the mailing of the notice by the clerk of court. The party requesting trial by jury may not be compelled to post a cash bond prior to trial. If the bond is not given within such time, any party may move, for an order vacating the original order. Upon issuance of an order vacating the order for trial by jury, the trial shall proceed without a jury. When a trial by jury in a civil case is prayed for and allowed or one is ordered by the judge, the judge shall, on application of either party to the cause, in case there be no venire of jurors from which to select a jury, order the commission to draw such number of jurors as he may deem necessary to try and determine the cause, drawing to be made in accordance with the forms prescribed by R.S. 13:3044. (Emphasis added.)

Appellant relies heavily on the case of Royer v. Royal Globe Insurance Co., 262 La. 685, 264 So.2d 607 (1972), for the proposition that the right of one requesting a jury trial is favored in law. While we do not argue with this general principle, we find Royer distinguishable from this case. In Royer, the defendants alleged the plaintiff (who had requested the jury trial) had failed to deposit the $12 advance jury costs, as required by La.R.S. 13:3050 as it read at that time. The defendants filed a motion to dismiss as of non-suit based upon the lack of the deposit and the trial court granted the motion and dismissed plaintiffs suit. The Court of Appeal affirmed but the Supreme Court on writs reversed and remanded, noting there was some confusion as to whether or not the jury deposit had in fact been paid. The trial court was ordered to make this determination upon remand. If the deposit had not been paid, the plaintiff was to be allowed ten days to pay it. If the ten days passed without payment the case would then be placed upon the regular docket of the court for trial before the judge alone.

In reaching this conclusion the court made the following observation, which is completely in line with our reasoning here:

“The failure of the mover for jury trial to deposit the jury fee or file the required bond is ground for denial of the right to trial by jury, but does not give rise to a dismissal as of nonsuit.” 264 So.2d 607, 610.

The purpose of the remand in Royer was to determine whether or not the deposit had actually been paid. There is no confusion in the present case concerning the bond. It has not been filed. Accordingly, a remand for purposes of a factual determination is unnecessary. In Royer, the ten day “grace period” was provided because of the factual confusion. Plaintiffs case had been dismissed upon the premise of nonpayment of the deposit. Here, there has been no dismissal of the suit. The court simply did what the Royer court stated should be done, it assigned the case as a nonjury matter.

Plaintiffs argue the terms of the statute state clearly if the bond is not filed within sixty days of the court’s order for the jury trial, any party may move to have the order vacated. In the present case almost a year and a half elapsed between the notice of the order granting the jury trial and the subsequent action of the court in vacating its prior order.

Defendant argues the court should have granted a hearing prior to vacating the order for a jury trial in that the statute does not state it is mandatory the court revoke its order for failure to post timely the bond. While the court could have granted such a hearing prior to its action, we hold it was not error for the court to issue the order ex parte. The purpose of La.R.S. 13:3050 is to prevent unreasonable delays in the litigation process and to expedite trial.

Appellant contends it is unjust to vacate the order for a jury trial because the confusion over the bond was caused mainly by a change in counsel. The change in counsel occurred some 6 months after the bond should have been posted. At that time it was encumbant upon new counsel to examine the record and to otherwise determine the status of the case. Such an effort would have revealed the lack of a bond. There were two notations in the record, one in April of 1982 and another in September of 1982, whereby the deputy clerk made it perfectly clear the jury bond had not yet been provided. Present counsel could have filed the jury bond any time during the approximate nine months that elapsed from their enrollment as counsel of record and plaintiffs’ motion to have the order for jury trial vacated. Counsel took no action during this period of time and cannot now be heard to complain it is unfair the jury order was vacated. Fairness is a double edged sword and must always be viewed from the standpoint of both plaintiff and defendant. Considering plaintiffs’ attempts over a prolonged period of time to have this case set for trial, it is they who would suffer unfairness were we to now reverse the trial court thereby risking still further delay.

We conclude the defendant had more than ample time to file the jury bond. A cursory examination of the record or of prior counsel’s file would have revealed the bond had not been filed. Under the express terms of La.R.S. 13:3050 the trial court acted properly in vacating the order. For these reasons the judgment of the trial court is affirmed. Costs of this appeal are to be paid by appellant.

AFFIRMED.

      . The judgment appealed from (which vacated the order for a jury trial) is an interlocutory judgment and normally not appealable. However, appellant argues it will suffer irreparable harm if deprived of the jury trial, making the judgment appealable under Code of Civ.P. art. 2083. In our view, denial of a jury trial is not always tantamount to irreparable harm. Regardless, in this instance we choose to pretermit the question and decide the appeal. Appellate delay already incurred is a factor in deciding to do so.

      . This statute was repealed by Acts 1983, No. 534, § 11, effective August 30, 1983.


author: CARTER, Judge:

text:
    GULF CRAFT, INC. v. STAGG MARINE, INC. and Oubre Industries, Inc.
    No. 83 CA 0978.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Victor J. Versaggi, Patterson, for plaintiff-appellee.
    Robert C. Leininger, Jr., Jon D. Picou, Bailey & Leininger, Metairie, for defendants-appellants.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Plaintiff, Gulf Craft, Inc., brought this action against Stagg Marine, Inc. and Ou-bre Industries, Inc. for alleged damages to Hull No. 256, a vessel under construction, while the hull was in tow.

Gulf Craft had contracted with Stagg Marine to tow Hull No. 256 from Simmes-port to Patterson. Rather than performing the service itself, Stagg, unbeknownst to Gulf Craft, Inc., engaged Oubre Industries to conduct the tow. The hull was towed on the Atchafalaya River from Simmesport to Patterson by the M/V Captain Troy, a tug boat owned and operated by Oubre Industries.

Sometime during the early morning hours of March 26, 1982, the M/V Captain Troy collided violently with the Missouri Pacific Railroad Bridge at Krotz Springs. The starboard (left) side of the hull was “hipped” to the M/V Captain Troy’s port (right) side. As the M/V Captain Troy proceeded under the bridge, the vessel’s starboard side struck the bridge stanchion. Upon impact, the 1⅛" polypros lines securing the tug to the vessel snapped and the hull broke free and continued to float down the river.

The M/V Captain Troy backed through the bridge and pursued its tow. Ultimately, the M/V Captain Troy regained control of the hull and delivered it to the Gulf Craft yard in Patterson the following day.

On March 29, 1982, Gulf Craft personnel removed the hull from its slip at the Gulf Craft yard and placed the hull into its building to complete the construction. Upon hearing about the collision at the Krotz Springs bridge, Gulf Craft personnel inspected the hull in the area of the bow, but found no damage.

On May 4, 1982, the damage was discovered by an employee of Gulf Craft. This employee reported his findings which were ultimately brought to the attention of Mr. Pecoraro, Vice-President and General Manager of Gulf Craft.

Closer examination then revealed the following damage. The unfinished aluminum hull sustained damage on the starboard side roughly 20' forward of the stern and continuing for approximately another 20'. The side plating itself was indented approximately 2V2". Additionally, on the starboard side there was one small area approximately 18" X 18" that was dented approximately ¾ of an inch and another area on the starboard side that was indented about an inch and a quarter. There was also damage to the internal structure of the hull with distortion of framing in the damaged area and several frames were cracked and twisted.

Gulf Craft subsequently filed suit against Stagg Marine and Oubre Industries alleging that defendants negligently damaged Hull No. 256. After trial on the merits, the trial court found that defendants were liable for the damage to the hull and rendered judgment in favor of Gulf Craft in the amount of $6,490.56. From this adverse judgment, defendants appeal assigning the following specifications of error:

(1) The trial court erred in denying defendants’ motion to dismiss at the close of plaintiff’s evidence; and,
(2) The trial court erred in finding defendants liable for the damage to Hull No. 256.

ASSIGNMENT OF ERROR NO. 1

Defendants contend that the trial court erred in denying their motion for directed verdict because plaintiff failed to establish its claim by a preponderance of the evidence.

LSA-C.C.P. art. 1810 describes the motion for directed verdict as follows:

“A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”

This Court cited the proper standard for applying LSA-C.C.P. art. 1810 in Thomas v. Thom, 408 So.2d 442 (La.App. 1st Cir. 1981), writ denied, 412 So.2d 85 (La.1982):

“In non-jury cases, the appropriate standard for the trial court’s determination of a motion for directed verdict is whether plaintiff has presented sufficient evidence on her case-in-chief to establish her claim by a preponderance of the evidence. Bryan v. Varnado, 394 So.2d 1321 (La.App. 1st Cir.1981); Sevin v. Shape Spa for Health & Beauty Inc., 384 So.2d 1011 (La.App. 4th Cir.1980). In making its determination on such a motion, the trial court is not required to review the evidence in the light most favorable to plaintiff but may instead render judgment based upon a preponderance of the evidence. Bryan v. Var-nado, supra. Moreover, the directed verdict in a non-jury case should not be reversed in the absence of manifest error. Littles v. Southeastern Fidelity Insurance Co., 398 So.2d 575 (La.App. 1st Cir.1980).”

Plaintiff’s cause of action is based on negligence, thus he must establish “fault” on the part of the defendants. Plaintiff must show that there is a duty owed by the defendant or by someone for whom the defendant is answerable to the plaintiff, that there was a breach of this duty, and that this breach of duty is the cause-in-fact of the damages suffered by the plaintiff. Williams v. Louisiana Machinery Co., Inc., 387 So.2d 8 (La.App. 3rd Cir.1980).

The United States Supreme Court in Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699 (1932), upon the question of the duty and liability of a tug under a towage contract, held (1) that the tug is not a bailee of the vessel in tow or her cargo; (2) that a suit by the owner of the tow to recover for an injury to the tow caused by negligence on the part of the tug is an action ex delicto; (3) that the tug is not liable as an insurer or as a common carrier, but owes to the tow the duty to exercise such reasonable care and maritime skill as prudent navigators employ for the performance of similar services; and (4) that the mere fact that the tow was in good condition when received by the tug, and in damaged condition when delivered, does not raise any presumption of fault on the part of those performing the towage service.

However, when a moving vessel collides with a fixed object there is a presumption that the moving vessel is at fault, and this presumption suffices to make out a prima facie case of negligence against the vessel. Woods v. United States, Dept. of Transp., 681 F.2d 988 (5th Cir.1982); Brown and Root Marine Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d 724 (5th Cir.1967). This presumption of negligence applies to the operator as well as to the vessel and works against all parties participating in the management of the vessel at the time of the contact. Merrill Trust Co. v. Bradford, 507 F.2d 467 (1st Cir.1974). See also Freeport Sulphur Co. v. S/S HERMOSA, 526 F.2d 300 (5th Cir.1976).

Analyzing the instant case in light of the above-cited legal principles, we find no error in the trial court’s denial of defendants’ motion for directed verdict at the close of plaintiff’s evidence. A review of the record clearly demonstrates that plaintiff presented sufficient evidence on its case-in-chief to establish its claim by a preponderance of the evidence.

The deposition of Robert J. Williams, bridge tender for Missouri Pacific Railroad, reveals that in the early morning hours of March 26, 1982, the M/V Captain Troy collided with the Missouri Pacific Railroad bridge over the Atchfalaya River at Krotz Springs, Louisiana. Williams personally witnessed the collision and the events immediately following the collision, including the snapping of the lines connecting Hull No. 256 to the M/V Captain Troy and the breaking free of the hull. The testimony of William A. Pecoraro, vice-president and general manager of Gulf Craft, established that the hull had been properly launched and that the hull had not been damaged while in the possession of Gulf Craft after its delivery to Patterson. Daniel L. McCloy, Jr., marine surveyor for Wright Marine Surveyor, Inc., investigated the damages and rendered an opinion as to the cause of those damages. McCloy’s investigation and testimony revealed the following:

“First, I would like to say that if he hit that bridge the way the tender says there, in my opinion there was impact between the two hulls; because it was forcing that tug away from the pier, the angle that he hit on. The hull was still coming down with all the current that they have at Krotz Springs, and I spent sixty-four days up there in the springtime salvaging a barge. He was coming down and you weren’t going to get him to shift away. That’s what I’m saying, in my opinion, there was impact between the two vessels if that occurred. Upon impact, I feel the steel hull would have damaged this aluminum hull.”

Clearly, the trial court correctly denied defendants’ motion for directed verdict at the close of plaintiff’s case since plaintiff presented sufficient evidence and established a prima facie showing of damage to Hull No. 256 through defendants’ negli£ence-

ASSIGNMENT OF ERROR NO. 2

Defendants further contend that the trial court should have found the defendants not liable for the damages to the hull discovered over thirty days after the defendants relinquished control of the hull to plaintiff.

As we noted in the previous assignment of error, when a moving vessel collides with a fixed object there is a presumption that the moving vessel is at fault. The burden of disproving fault by the moving vessel then requires demonstration that its operator did all that reasonable care required. Woods v. United States, Dept. of Transp., supra; Brown and Root Marine Operators, Inc. v. Zapata Off-Shore Co., supra.

This defendants failed to do. Defendants’ only witnesses were Ray Anthony Oubre, owner of the M/Y Captain Troy, and Dale P. Renthrope, owner of Stagg Marine. Oubre testified that in his opinion the M/V Captain Troy could not have caused the damage to the hull. This testimony was contradicted by Daniel L. McCloy, Jr., a marine surveyor for Wright Marine Surveying, Inc. Mr. McCloy testified as follows:

“A. Okay. Taking the information that I know now; what happened, according to the bridge tender, I would say that the most probable cause for the damage sustained to the hull would have been the impact between the two vessels.”

Furthermore, neither the captain nor the deckhand of the M/V Captain Troy were called to testify. In fact, no evidence was adduced that the operator of the M/V Captain Troy exercised the required reasonable care.

For the above reasons, the judgment of the trial court is affirmed. Costs are to be assessed against defendant-appellants.

AFFIRMED.

      . Mr. Pecoraro, Vice-President and General Manager of Gulf Craft, testified that upon being informed that the tug boat hit the bridge piling, that he assumed that the hull also hit the bridge and the bow being the furthermost point sticking out, he assumed that it was the area that was hit. He testified that he examined the bow, looked on each side, and didn’t see any damage, and took it for granted that as of that date there was no damage. Mr. Pecoraro further testified that from March 29, 1982, until May 4, 1982, the date that the damage to the hull was discovered, that the hull was up against the building and there was nothing that could have happened to it and no way that it could have been damaged from March 29, 1982 until May 4, 1982, while in Gulf Craft's custody.


author: GUIDRY, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Nathan CHAMPAGNE, Defendant-Appellant.
    No. CR83-696.
    Court of Appeal of Louisiana,' Third Circuit.
    June 27, 1984.
    Paul J. de Mahy, St. Martinville, for defendant-appellant.
    Bernard Boudreaux, Dist. Atty., Chester Cedars, J. Phil Haney, Asst. Dist. Attys., St. Martinville, for plaintiff-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   GUIDRY, Judge.

The defendant, Nathan Champagne, pleaded guilty to the charge of attempted forcible rape, a violation of LSA-R.S. 14:42.1 and 14:27, on November 15, 1982. On April 29, 1983, after a pre-sentence investigation, the trial judge sentenced the defendant to seventeen years at hard labor. The defendant has appealed the sentence.

The defendant filed no assignments of error pursuant to LSA-C.Cr.P. Art. 844. Therefore, the scope of appellate review in this case is limited to a review of the pleadings and proceedings, without inspection of the evidence, for errors patent. LSA-C. Cr.P. Art. 920; State v. Zeno, 322 So.2d 136 (La.1975). We have carefully examined the record in this case pursuant to the mandate of LSA-C.Cr.P. Art. 920, and finding no errors patent on the face of the record, we affirm the defendant’s conviction and the sentence imposed.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana, v. Elliot S. GALLOW, Defendant-Appellant.
    No. CR83-710.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Robert DeJean, Sr., DeJean, DeJean & DeJean, Opelousas, for defendant-appellant.
    David Miller, Asst. Dist. Atty., Opelou-sas, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

On September 29, 1982, the defendant was charged by bill of information with distribution of Phenmetrazine, a controlled dangerous substance classified in Schedule II of the Uniform Controlled Dangerous Substances Act, a violation of La.R.S. 40:967. Defendant was also charged with distribution of Talwin, a controlled dangerous substance classified in Schedule IV of the above Act, a violation of La.R.S. 40:969.

The defendant was tried before a twelve person jury and found guilty of both offenses. Defendant Gallow was then sentenced to serve two (2) years on Count One and six (6) years on Count Two, to run consecutively.

The defendant filed a motion for mistrial based on allegations that jurors were improperly sworn and not sequestered. The motion for mistrial was denied. The defendant appeals his conviction and the denial of his motion for- mistrial alleging essentially two assignments of error.

FACTS

Jury selection for defendant’s trial was set for March 14,1983. On that date, three juries were selected including defendant’s jury. The first jury was selected to try an aggravated rape case. The second jury was to try a forgery case. According to the defendant, the selection of defendant’s jury began at 2:00 P.M. and ended at approximately 6:00 P.M. This jury, as well as each of the other two juries, was then sworn in at 6:15 p.m.

Jurors for all three cases, after their selection, without having been sworn and admonished, were permitted to return to the audience. During the lunch hour and recesses, all jurors were permitted to walk around the courthouse and grounds.

The defendant filed a motion for mistrial arguing that because jurors were not sequestered and were not sworn in individually, immediately after their acceptance, the defendant was denied trial by an impartial jury. The defendant appeals the denial of his motion for mistrial and his conviction.

ASSIGNMENT OF ERROR NO. 1

The defendant argues through this assignment that he was denied trial by an impartial jury because each juror was not sworn immediately after acceptance. The defendant correctly argues that La.C.Cr.P. Art. 788 requires that a juror be sworn immediately after acceptance:

“When a prospective juror is accepted by the state and the defendant, he shall be sworn immediately as a juror.” La.C. Cr.P. Art. 788. [Emphasis added.]

There is no dispute as to the fact that none of the twelve jurors were sworn immediately after selection. The record reflects that the jury was sworn and charged collectively after the selection of the last juror.

The defendant alleges that allowing the jurors to walk around the courthouse freely after being accepted, without having been previously sworn, destroyed the jurors’ impartiality. The defendant asserts that this probably encouraged free discussion and that jurors probably discussed things of a criminal nature.

The defendant does not allege, nor does the record reflect, any particular exchanges between any of the jurors and an outsider or each other. The defendant argues only in terms of generalities but makes no specific showing of any behavior which could have resulted in prejudice to the defendant. It should be noted that although the defendant implies that the individuals selected for this jury walked about the courthouse freely all day while other jurors for this trial were being selected, the record reflects, as stipulated to by the prosecutor and defense counsel, that the jurors were out of the courtroom only during lunch and recess. Furthermore, this defendant’s jury voir dire took place from 2:00 p.m. to 6:00 p.m.; the jurors selected for defendant’s case were only out of the courtroom during recess, if outside the courtroom at all. The record does not reflect how many recesses were called, if any, or the duration of any recesses which may have been called. Thus defendant has shown no more than a remote possibility that some discussion, about some criminal activity, may have taken place between prospective and already selected jurors. In effect, defendant’s argument is premised on the failure to follow La.C.Cr.P. Art. 788, which he claims strictly raises a presumption that the jury is no longer an impartial jury. But the Code provides for no such presumption, conclusive or rebuttable. Moreover, before this jury’s verdict could be set aside, the defendant would have to make a showing that some conversation did in fact take place between selected jurors and others as dictated by the Louisiana Supreme Court. The Court interpreted the application of statutory procedures for the selection of the venire:

“Any variation from the strict letter of the law does not permit the composition of a petit jury to be set aside because of insignificant technicalities or irregularities unless there is a showing that some fraud has been practiced or great wrong committed which would work irreparable injury to the accused.” State v. Perry, 420 So.2d 139 (La.1982).

The defendant has not demonstrated that his constitutional right to an impartial jury was violated merely as a result of inconsequential noncompliance with the selection of the. venire.

The Code of Criminal Procedure does clearly and explicitly require that jurors be sworn immediately after selection. La.C. Cr.P. Art. 788; State v. Martin, 329 So.2d 688 (La.1976). However, neither the Code nor the courts have commenced since the addition of this provision in 1966 as to the ramifications of the court’s failure to swear accepted jurors immediately after their acceptance.

The defendant cites State v. Martin, supra, in support of his argument to set aside this jury’s conviction. However, the issues in Martin are not dispositive to the case at bar. In Martin, a capital case, the jurors were not sworn immediately after acceptance. In addition, the jurors were permitted to return home for approximately 21 hours after being selected and sworn. This clearly violated the rules of sequestration as provided for in La.C.Cr.P. Art. 791. In view of all these circumstances, the conviction was set aside. The court based its decision in that case on the failure to comply with C.Cr.P. Art. 791. The Court stated that:

“[t]he failure to immediately swear the jurors only compounds the error. Thus, the combination of these two factors requires that the conviction and sentence be set aside.” State v. Martin, supra at 691.

However, other language in Martin reflects the Court’s examination of the underlying policy considerations of La.C.Cr.P. Art. 788. The Court explained:

“Although no comment to Article 788 sheds light upon the reason for this requirement, it is certain that it is clearly expressed. We can agree that it establishes a better practice. A juror should be made aware of the solemnity of his responsibility at the time of his acceptance. To defer the oath is to defer this awareness and perhaps encourage activity which is incompatible with a juror’s duties.” State v. Martin, supra at 690.

From this reasoning, the defendant would have to show that some activity which was incompatible with a juror’s duties did, in fact, take place. The defendant herein make no such showing but merely argues that the court should presume that such activity may have occurred and therefore the jury was not an impartial jury.

Inasmuch as the defendant has failed to make a showing that any impermissible conversation actually occurred between the jurors who sat on his jury and others or even among themselves, he has failed to show some great wrong committed which would work irreparable injury to the accused.

There is no merit to this assignment of error.

ASSIGNMENT OP ERROR NO. 2

The defendant also argues that the jurors, as they were selected, should have been sequestered. The defendant asserts that because the jurors were allowed to walk about the courthouse and grounds freely, it can be presumed that discussions took place which rendered it unlikely that the jury could remain impartial.

The record does not reflect that defendant at any time moved for sequestration nor did the defendant raise any objection to the procedure complained of during voir dire. Thus it appears that this assignment was not properly preserved for appeal. However, the Courts have held, even when the defendant does move for sequestration, that the trial judge in his discretion may deny such motion both as to prospective jurors or selected jurors. State v. McAllister, 253 La. 382, 218 So.2d 305 (1969).

“This court has repeatedly held, that there is no abuse of discretion in the denial of a motion to sequester either selected or prospective petit jurors. State v. James, 305 So.2d 514 (La.1974); State v. Robinson, 302 So.2d 270 (La.1974); State v. Ferdinand, 285 So.2d 530 (La.1973).” State v. Monk, 315 So.2d 727 (La.1975).

See also State v. Turner, 253 La. 763, 220 So.2d 67 (1969).

This assignment is without merit.

DECREE

For the above and foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: CUTRER, Judge.

text:
    Edith SPENCER, Plaintiff-Appellee, v. Edward J. HYNES, et al., Defendants-Appellants.
    No. 83-712.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Jeansonne, Briney & Goudelocke, Charles J. Foret, Lafayette, for defendants-appellants.
    Armen tor & Wattigny, Gerard B. Wattig-ny and David W. Groner, New Iberia, for plaintiff-appellee.
    Before CUTRER, DOUCET and'YEL-VERTON, JJ.
   CUTRER, Judge.

This appeal results from a trial court judgment for damages arising out of an intersectional collision between an automobile driven by plaintiff and a truck driven by Edward Hynes, one of the defendants. As Edith Spencer was proceeding along a boulevard, a favored roadway, she collided with a truck being driven through an intersection by Edward Hynes. The defendant, while acting within the scope of his employment, failed to observe and honor a stop sign controlling his entry into the intersection. The plaintiff filed suit for special and general damages against the defendant; his employer, Acme Truck Line, Inc.; and Acme’s insurer, Northwestern National Insurance Company. The defendants answered alleging that her negligence was the sole cause of the accident or, alternatively, that the plaintiff was contributorily negligent.

Following a trial, judgment was rendered for the plaintiff against the defendants in solido, awarding the plaintiff general and special damages in the amount of $15,-591.58 plus 12% interest from the date of judicial demand. At trial the defendants admitted the negligence of Hynes but argued that the plaintiff was contributorily negligent and that any recovery due her should be reduced by the proportion that her negligence contributed to the accident. The trial court acknowledged the applicability of the comparative negligence law (LSA-C.C. art. 2328), since the accident occurred in 1981, but it refused to reduce the plaintiffs award, finding that she “was guilty of no negligence.”

The defendants appealed suspensively, contending that the trial judge erred in finding that the plaintiff was not guilty of any negligence. The defendants contend that the plaintiffs award should be reduced by 75%, the proportion to which her negligence allegedly contributed to the accident. The total damage award of $15,-591.58 was not challenged by the defendants. The plaintiff has neither answered nor appealed. We shall amend the judgment.

FACTS

The facts are not in dispute. The accident in question occurred in New Iberia on December 8, 1981, shortly before the noon hour, and the weather was clear and dry. Immediately prior to the accident, the plaintiff was driving her 1979 Chevrolet automobile south on Airport Boulevard, a divided highway with two lanes of travel running north and two lanes running south. The median dividing the four lanes is approximately 18 to 19 feet wide. Airport Boulevard is intersected by Admiral Doyle Drive, a two-lane, paved road running east and west. At this intersection, there is a stop sign regulating the traffic on Admiral Doyle Drive. There were no traffic controls for drivers on Airport Boulevard, and the posted speed limit for both roadways was 45 miles per hour.

As the plaintiff was driving south and nearing the intersection, the defendant, Edward Hynes, was approaching it on Admiral Doyle Drive, driving in a westerly direction. He was operating a 2lk ton, flatbed truck, 35 feet in length. At that time Hynes was on a mission for his employer, but he had become lost while driving in New Iberia. At trial, Hynes admitted that he failed to see the stop sign controlling his entry into the intersection. He, therefore, entered the intersection of the two roads without stopping or slowing, although Hynes stated that he had looked left and right before he entered the intersection and that he had not seen any traffic at that time.

Hynes testified that he was halfway through the intersection before he saw the plaintiff’s car on his right and that he could not stop in time to avoid the accident. He accelerated in an attempt to avoid a collision. He stated that he was driving approximately 35 miles per hour when the accident occurred. The plaintiff stated that she was driving only 25 miles per hour at the time of the accident, having checked her speedometer only seconds before the impact. She also stated that she was driving with her windows up and that the radio and air conditioner were both in use. Further, the plaintiff testified that she was looking straight ahead as she approached the intersection and she did not see any vehicle.

Hynes’ truck had practically cleared the intersection (approximately 70 feet wide) when the front of the plaintiff’s car struck the area of the right rear bumper of the truck. The plaintiff was injured by the impact and taken to a nearby hospital for treatment and was released. The plaintiff testified unequivocally several times that she never saw the truck, although she had been looking straight ahead.

Both drivers said that they did not apply their brakes at any time prior to the accident. This was corroborated by Tropper Etie’s investigation of the scene which failed to reveal any tire skid marks. The plaintiff stated that her slow speed would have allowed her to have stopped her car within several feet if she had applied her brakes.

On the northeast corner of the intersection there was erected a one-story, commercial building situated approximately 40 feet from Airport Boulevard. This building would obstruct the view plaintiff and Hynes had of one another as they made their approach toward the intersection. The plaintiff testified, however, that, had she been looking in that direction, she could have seen the stop sign on Admiral Doyle Drive from a distance of approximately 150 yards. The photographs introduced into evidence support this estimate. There were no other obstructions to the drivers’ views.

PLAINTIFF’S NEGLIGENCE

In the instant case, the defendants’ negligence and liability are not in question, as Hynes conceded that he ran the stop sign.

The sole issue before this court is whether the trial court erred in finding that plaintiff was free of negligence.

The principles of law involved in deciding this issue are as follows:

“With respect to the claim of failure to maintain a proper lookout it is well established in the jurisprudence that a motorist on a favored street has a right to assume that any driver approaching the intersection on a less favored street will yield the right of way. The driver can indulge in this assumption until he sees or should see that the other car has not observed the law. Doucette v. Primeaux, 180 So. 2d 866 (La.App. 3 Cir. 1965). ”

Audubon Insurance Company v. Knoten, 325 So.2d 624 (La.App. 4th Cir.1976). Although the motorist may assume that a stop sign will be obeyed by other motorists, he must nevertheless exercise caution that is commensurate with the circumstances. Further:

“Preferences on favored streets created by statutes, signals, or signs, do not relieve the driver traveling on the favored street from ordinary care. When the superior motorist should realize reasonably that the inferior motorist will continue his approach and obstruct the superior motorist’s passage across the intersection, he is guilty of negligence should he fail to take every precaution to avoid a collision. Randall v. Baton Rouge Bus Company, 240 La. 527, 124 So.2d 535 (1960); Doyle v. Employer’s Fire Insurance Company, 349 So. 2d 450 (La.App. 3rd Cir.1977), writ denied 351 So.2d 775 (La.1977); Meynier & Dillman Hardware Company v. Aronson, 229 So.2d 365 (La.App. 4th Cir.1969), writ refused, 255 La. 485, 231 So.2d 396 (1970); Roussell v. Strug, 225 So.2d 34 (La.App. 4th Cir.1969).”

Kirk v. Allstate Ins. Co., 366 So.2d 642 (La.App. 3rd Cir.1978), writ den., 369 So.2d 154 (La.1978).

With these principles in mind we examine the circumstances of this accident to determine if plaintiff was Contributorily negligent and, if so, the percentage.

There was no impairment of the plaintiff’s view of the intersection as she approached same at 25 miles per hour. The truck driver went through the stop sign at approximately 35 miles per hour, crossed the northbound lanes of travel (24 feet wide), the neutral ground (18 feet wide), and he traversed practically all of the southbound lanes of travel when plaintiff struck the rear portion of the truck.

Plaintiff stated that there was no obstruction but that she didn’t see the truck before the accident. Her testimony in this regard was as follows:

“Q. Do you know how fast you were driving the day of the accident?
“A. Yes, I do; twenty-five miles an hour.
“Q. How do you know how fast you were driving?
“A. I had just checked my speedometer before the accident.
“Q. Where were you looking as you approached the intersection?
“A. Straight ahead.
“Q. Did you see any traffic in the intersection?
“A. No, I didn’t.”
* * * * * *
“Q. What did you see before you hit the truck?
“A. Just a flash. You know, I really didn’t see the truck. It just flashed in the front of me and I hit it. ”

As we consider the plaintiffs speed of 25 miles per hour, the good visibility of the intersection, the 70 foot width of the intersection and the distance traveled by the truck through the intersection prior to the accident, we conclude that plaintiff could and would have observed the truck as it crossed the boulevard if she had maintained a proper lookout and ordinary care. Plaintiff was not exercising the caution which was commensurate with the circumstances. If she had been keeping a proper lookout she would have been able to avoid the accident by slowing her car or veering slightly to her left. When she failed to perform these basic duties imposed upon her by the law, she was negligent in the operation of her vehicle, which negligence was a proximate cause of the accident. We conclude that the trial judge was clearly wrong in finding plaintiff free of negligence.

PROPORTION OP PLAINTIFF’S NEGLIGENCE

The only question remaining to be answered is the percentage of the accident-causing negligence which should be attributed to the plaintiff.

A consideration of all the facts and circumstances presented in this case leads this court to the conclusion that 30% of the actionable negligence should be attributed to the plaintiff. Accordingly, the award of $15,591.58 to the plaintiff shall be reduced by 30%, an amount we find to be $4,677.47.

For the foregoing reasons, the trial court’s judgment shall be amended by reducing the award to $10,914.11. In all other respects the trial court judgment shall be affirmed. Costs of this appeal are assessed to plaintiff-appellee.

AMENDED AND AFFIRMED.

      . The damages awarded to the plaintiff were itemized as follows:
      Loss of vehicle $ 4,910.00
      Loss of wages 4,200.00
      Medical $1,481.58
      General damages for pain and suffering 5,000.00


author: YELVERTON, Judge.

text:
    Julius LAVALAIS, Plaintiff-Appellant, v. Georgia B. ALLEN and George Brown d/b/a Georgia’s Hot Tamales, Defendant-Appellee.
    No. 83-744.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Rehearing Denied July 25, 1984.

      Rivers & Willson, Thomas R. Willson, Alexandria, for plaintiff-appellant.
    Trimble, Percy, Smith, Willson, Foote & Walker, James T. Trimble, Jr., Irving Ward-Steinman, Alexandria, for defendant-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   YELVERTON, Judge.

Plaintiff, Julius Lavalais, filed this suit against his alleged employers, Georgia Allen and George Brown, d/b/a Georgia’s Hot Tamales, seeking workmen’s compensation benefits. Shortly after suit was filed the defendants gave him $1200 and plaintiff gave them a release. He later amended the suit demanding, in the alternative, damages in tort from the defendants and their liability insurer, Commercial Union Insurance Company, based on negligence and strict liability. Based on the earlier release the defendants in the tort action filed a motion for summary judgment which was granted. The workmen’s compensation claim went to trial on the merits and was ultimately dismissed on a finding that the plaintiff had not sustained an employment related accident. From these two rulings the plaintiff has appealed. We reverse the summary judgment and remand. We affirm the dismissal of the workmen’s compensation suit.

After reciting the facts as revealed by the record, we will explain our rulings regarding the issues on appeal which are: 1) whether the trial court erred in granting the defendants’ motion for summary judgment, and 2), whether the trial court was clearly wrong in determining the accident was not employment related.

FACTS

The defendants, Georgia Allen and George Brown, own and operate a restaurant called Georgia’s Hot Tamales. The restaurant is open only on Thursday, Friday and Saturday evenings. On Wednesday morning certain employees “roll” the hot tamales. The plaintiff was employed as a nighttime guard, but only during the hours the restaurant was open for business. The plaintiff also did odd jobs for the defendants around the restaurant, such as plumbing, repairing appliances and sometimes washing the dishes. He sometimes worked in Brown’s bar nearby. On one or two occasions he worked on Brown’s car. For these odd jobs he was paid on the spot. For the guard work at the restaurant he was paid by Brown each Saturday night in cash. The amount probably varied, although plaintiff testified it was $60 a week while Brown said it was more like $40.

Georgia Allen’s home is located in front of the restaurant. The plaintiff lived near the restaurant in an apartment owned by Georgia Allen. He visited in the restaurant often when he was not working.

On Wednesday, February 4, 1981, at about 8:00 in the morning Georgia Allen, from her house, saw the plaintiff walking towards the restaurant. She called him over to her house and asked his help in removing a sample of material from a sample board. The sample of fabric was attached to the board by a metal clip. The plaintiff carried the material with him down to the tamale stand where he attempted to remove the clip by using a hammer and a meat cleaver. In the process of removing the clip a piece of fragmented metal lodged in his eye. The following morning he went to the hospital. After several operations he lost sight in his left eye.

Plaintiff retained an attorney. On December 17, 1981, he filed a suit against Georgia Allen and George Brown for workmen’s compensation benefits. Three weeks later on January 7, 1982, without the knowledge of his attorney, plaintiff and the two defendants went to the office of another attorney (not otherwise involved in this case) where a release was drawn up. For $1200 in cash plaintiff signed this release. Defendants thereafter got a lawyer and filed an answer to the workmen’s compensation suit, pleading the release along with their other defenses.

Months later, on August 23, 1982, plaintiff amended his suit to allege, in the alternative, a tort basis for recovery against the two defendants. Commercial Union Insurance Company, as the homeowner’s insurer of Georgia Allen, was added as a defendant in this tort action.

Thereafter the defendants filed their motion for summary judgment based on the release. On May 17, 1983, the trial court granted the defendants’ motion for summary judgment as to the tort action. The judgment reserved to plaintiff his claim for compensation benefits, presumably because the settlement was not court approved and therefore ineffective as to the compensation claim. The workmen’s compensation ease was subsequently tried on the merits.

We will now discuss the two issues presented by this appeal.

THE SUMMARY JUDGMENT

The granting of a motion for summary judgment means that the trial court has determined that there is no genuine issue as to any material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. The plaintiff urges on appeal that there is an issue of fact regarding whether the release was intended to apply to the tort case. Any doubts as to genuine issues of material fact are resolved against the grant of summary judgment and in favor of a trial on the merits. Rennier v. Johnson, 410 So.2d 1149 (La.App. 3rd Cir.1981), writ denied 412 So.2d 1115 (La.1982).

The receipt and release signed by plaintiff reads as follows:

“RECEIVED OF GEORGIA BROWN ALLEN and GEORGE BROWN the sum of ONE THOUSAND TWO HUNDRED & NO/100 ($1,200.00) DOLLARS, in full and complete settlement and satisfaction of the claim made herein.
“In consideration of the foregoing payment to me, in cash, the said GEORGIA BROWN ALLEN and GEORGE BROWN and all other persons, corporation, partnerships and associations are hereby fully, finally and completely released and discharged from all liability to me for claims for damages, compensation, medical expenses, attorney fees, penalties or otherwise resulting from an accident occurring on or about February 4, 1981, or at any other time while employed by GEORGIA’S HOT TAMALES, and the Clerk of Court of Rapides Parish, Louisiana, is hereby requested and authorized to file this ‘Receipt and Release’ in this suit record.”

Julius Lavalais gave depositions which were part of the summary judgment evidence. In them he admitted that he agreed to release the defendants for the sum of $1200. He said he got the money. He admitted that he understood at the time of the agreement that he was settling all claims against the defendants. He entered into the agreement voluntarily and there was no pressure or coercion. He stated that the reason he settled for $1200 was because he did not want to end up with nothing.

In one deposition he gave a different explanation of his intent in the following exchange:

“Q Okay. What did you think you were doing when you signed this thing and got a $1200.00?
“A Well, uh, to dismiss the, uh, the suit against Georgia.”

La.Civil Code art. 3071 defines a transaction or compromise as follows:

“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.”

A transaction or compromise regulates only the differences which appear clearly to be comprehended in them by the intention of the parties. La.Civil Code art. 3073. It is the law between the parties and must be interpreted according to the clear and explicit terms found in the agreement. Ritchey v. Azar, 383 So.2d 360 (La.1980).

The question here is whether, for summary judgment purposes, the compromise in this case precludes plaintiff’s amending suit in tort. We can find that it does preclude that claim only if it appears clearly that the parties intended to include the tort claim as a subject of their compromise. Ritchey v. Azar, supra.

We conclude that the words of the compromise agreement do not clearly evince the parties’ intention to preclude the plaintiffs tort action. The settlement was of “the claim made herein” and contained an authorization to file it “in this suit record.” When the agreement was signed there, was but one claim in the suit record and feat was the workmen’s compensation claim. It could be argued that “the claim made herein” could only have been the compensation suit because the tort action was still months away from even being filed. In addition, the language: “claims for ... compensation, medical expenses, attorney fees, penalties ... while employed by GEORGIA’S HOT TAMALES ...” is strongly suggestive that the parties intended to settle only the workmen’s compensation claim. At the very least, we are unable to say that the language used makes it clearly appear that the parties intended to preclude other claims than the single one at that time known to them, which was the workmen’s compensation suit that had just been filed.

Additionally, we note that, as a general rule, summary procedure is not appropriate to prove subjective facts such as intent. Vital v. Hous. Auth. of City of New Iberia, 360 So.2d 1182 (La.App. 3rd Cir.1978). Considering the uncertainty of the meaning of the compromise language, and the conflicts within the plaintiff’s deposition testimony, the general rule applies here.

For these reasons we must reverse the summary judgment and remand the case for further proceedings.

THE WORKMEN’S COMPENSATION CLAIM

An employee has a right of action against his employer for workmen’s compensation benefits if he receives personal injury by accident arising out of and in the course of his employment. LSA-R.S. 23:1031.

In determining whether an accident arises out of the employment the inquiry is two-fold. First, it must be determined whether the employee was then engaged in his employer’s business, and second, it must be determined that the necessities of the business reasonably required that fee employee be at fee place of the accident at the time of the accident. Guidry v. Serigny, 378 So.2d 938 (La.1979).

In the present case the trial court concluded that the plaintiff was not employed by the defendants at the time of the accident and therefore denied plaintiff’s claim for compensation benefits.

The trial testimony presented conflicting versions of what happened. The plaintiff testified that he went to work at the restaurant at 8:00 A.M. on the day of fee accident and that both George Brown and Georgia Allen were present. Mrs. Allen asked the plaintiff to remove the clip from the pattern board before he started his duties of barbecuing chicken and beef. It was then that the accident occurred. The plaintiff stated that he routinely barbecued meat at the restaurant on Wednesday mornings.

This testimony was disputed by the defendants. They introduced the deposition of the plaintiff for impeachment purposes. In the deposition plaintiff stated that he barbecued on Thursday mornings, not Wednesday mornings. Georgia Allen testified that the plaintiff was not working on the day of the accident, but visiting. She saw him from her house walking toward the restaurant and merely asked him as a favor to remove the clip. She never intended to pay the plaintiff for his help. She further testified that often on Wednesdays the plaintiff would visit the restaurant not to work but to visit the female employees hired to roll tamales. George Brown also testified that plaintiff was not employed at the- time of the accident and that the plaintiff had barbecued only for one three-week period, and then on Thursdays, never on Wednesdays. Several other employees of the restaurant testified that on Wednesdays certain employees, not including plaintiff, rolled the tamales.

Reasonable evaluations of credibility made by the trier of fact should be accorded great weight by a reviewing court. Berry v. Livingston Roofing Co., 403 So.2d 1247 (La.1981). We accept the trial court’s finding that plaintiff failed to establish that he was employed by the defendants at the time of the injury. The finding is reasonable and supported by the evidence in the record.

For these reasons the judgment of the trial court granting summary judgment in favor of defendants in the tort action is reversed and set aside, and the action is remanded to the district court for further proceedings. The costs of the appeal are to be paid by appellees. The judgment in favor of defendants rejecting plaintiffs workmen’s compensation claim at his cost is affirmed, with plaintiff-appellant to pay the costs of appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.