text:
    STATE of Louisiana ex rel. Barry Don PAYNE v. Honorable Baron B. BOURG, Judge and Hon. Robert Boudreaux, Clerk, 32nd Judicial District Court, Parish of Terrebonne.
    No. 83-KH-1603.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
    Reconsideration Denied Jan. 16, 1984.
   In re Barry Don Payne, applying for writ of mandamus. Thirty-second Judicial District Court, Parish of Terrebonne. No. 95-539.

Denied. There is no record of previous filing of this claim in the district court.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Toby J. THOMPSON.
    No. 83-KK-2493.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Toby J. Thompson, applying for writ of review and stay order. First Circuit Court of Appeal. No. KW-83-1368. Eighteenth Judicial District Court, Parish of Pointe Coupee. Nos. 29054 and 29055.

Writ Denied.


text:
    SUCCESSION OF Frederick A. ZIIFLE.
    No. 83-C-2312.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Vernon R. Ziifle and Bertha Ziifle Towner, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit. Parish of Jefferson, Twenty-fourth Judicial District. No. 212-505.

Denied.


text:
    STATE of Louisiana, ex rel. Robert Wayne WILLIAMS v. John T. KING, Secretary of Department of Corrections, and Ross Maggio, Warden, State Prison.
    No. 83-KP-2501.
    Supreme Court of Louisiana.
    Dec. 12, 1983.
   In re Robert Wayne Williams, applying for writ of habeas corpus, and stay order. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 1-79-356.

Denied.


text:
    STATE of Louisiana ex rel. Steven G. GALLAGHER, v. Charles FOTI, Jr.
    No. 83-KH-2389.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Steven G. Gallagher, applying for writ of habeas corpus. Fourth Circuit Court of Appeal. No. K-1472. Criminal District Court. No. 289-817. Parish of Orleans.

Granted. The trial court is ordered to conduct an evidentiary hearing on relator’s claim.


text:
    STATE of Louisiana, ex rel. Ronald N. FITCH v. STATE of Louisiana, Judge Charles William Roberts, Norbert C. Rayford, Commissioner, 19th Judicial District Court.
    No. 82-KH-1105.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Ronald N. Fitch, applying for writ of mandamus. East Baton Rouge Parish. No. 234337.

Granted. The District Court is ordered to act on relator’s civil action pending before it within 14 days.


text:
    STATE of Louisiana, ex rel. August DAVIS v. STATE of Louisiana.
    No. 83-KH-1871.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re August Davis, applying for remedial writ. Criminal District Court. No. 269-440. Parish of Orleans.

Granted. Relator’s motion for an out of time appeal is transferred to the district court for its consideration in accordance with law.


text:
    STATE of Louisiana ex rel., John L. JACKSON v. Larry W. JEANE, Warden, Camp Beauregard WTF-N.
    No. 83-KH-1942.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re John L. Jackson, applying for writ of mandamus. Parish of Terrebonne, Thirty-Second Judicial District Court.

Granted. Trial judge ordered to provide relator with copy of evidentiary hearing transcript as previously ordered by him.


text:
    STATE of Louisiana ex rel. Kendall WILLIS v. CLERK OF COURT, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 83-KH-2165.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Kendall Willis, applying for writ of certiorari and mandamus. Criminal District Court, Parish of Orleans. No. 268-186.

Granted. Furnish relator with a copy of his Boykin transcript.


text:
    Andrea Clesi FERTITTA and Jack Gathian Fertitta v. ALLSTATE INSURANCE COMPANY, et al.
    No. 83-C-2294.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Allstate Insurance Company and Paula McCarron, applying for writ of cer-tiorari or review. First Circuit Court of Appeal. No. 82 CA 1101. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 245115 — Division “F”.

Granted. See Order Attached.


text:
    STATE ex rel. Anthony SCOTT v. Robert LOWE, Clerk of Court, 5th District, Franklin Parish.
    No. 83-KH-2033.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re State ex rel Anthony Scott, applying for remedial writ. Fifth Judicial District Court, Parish of Franklin. No. 20419.

Denied. Moot. Trial court advises that relator’s petition was denied on Oct. 12, 1983.


text:
    STATE of Louisiana ex rel., Rodney HAMILTON v. Frank v. ZACCARIA, Judge, Division B, 24th Judicial District Court, Parish of Jefferson.
    83-KH-2040.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Rodney Hamilton, applying for writ of mandamus. Parish of Jefferson, Twenty-fourth Judicial District Court. No. 75-351.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Robert HYMAN v. Acting Warden, Hilton BUTLER, Hunt Correctional Center.
    No. 83-KH-2150.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Robert Hyman, applying for writ of mandamus. Twenty-Fourth Judicial District Court, Parish of Jefferson. No. 78-2650.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Lucious LAMPTON v. CLERK OF COURT OFFICE, 22ND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON.
    No. 83-KH-2213.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re LUCIOUS LAMPTON, applying for writ of mandamus. Twenty-Second Judicial District Court, Parish of Washington. No. 34,730.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Freddie L. SMITH v. Jeffrey P. VICTORY, District Judge, 1st Judicial District Court.
    No. 83-KH-2229.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Freddie L. Smith, applying for writ of mandamus. First Judicial District Court, Parish of Caddo.

Denied.


text:
    STATE of Louisiana, ex rel., Curtis J. MARTIN, Jr. v. COURT REPORTER, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 83-KH-2254.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Curtis J. Martin, Jr., applying for writ of mandamus. Parish of Orleans. No. 291-837.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Eddie EDWARDS v. Edwards N. ENGOLIO, Honorable Trial Judge.
    No. 83-KH-2316.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Eddie Edwards, applying for writ of review or certiorari. Eighteenth Judicial Court, Parish of West Baton Rouge. No. 95266.

Denied.


text:
    STATE of Louisiana ex rel. Edgar Lee ARY v. STATE of Louisiana.
    No. 83-KH-2330.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Edgar Lee Ary, applying for a writ of mandamus. Twenty-Sixth Judicial District Court, Parish of Bossier. No. 56312.

Denied.


text:
    Agnes Cotton CURTIS v. Valco COTTON, et al.
    No. 83-C-2343.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Valeo Cotton, applying for certiora-ri, or writ of review. Court of Appeal, First Circuit. No. 82-CA-1047. Twentieth Judicial District Court, Parish of East Feli-ciana. No. A-13295.

Denied.


text:
    STATE of Louisiana ex rel., Michael Alan FOOTE v. 19TH JUDICIAL DISTRICT COURT, PARISH OF E. BATON ROUGE.
    No. 83-KH-2376.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Michael Alan Foote, applying for remedial writ. Parish of E. Baton Rouge. Nineteenth Judicial District Court.

Denied.


text:
    STATE of Louisiana ex rel., Allen Ray DAWSON v. Donovan W. PARKER, Honorable Trial Judge, Criminal Section II, 19th Judicial District Court, Parish of East Baton Rouge.
    No. 83-KH-2378.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Allen Ray Dawson, applying for writs of review or certiorari, prohibition, mandamus and habeas corpus. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 4-79-176.

Denied.

BLANCHE, J., recused.


text:
    STATE of Louisiana, ex rel., Johnell McCULLOUGH v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1815.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Johnell McCullough, applying for writ of certiorari, prohibition, mandamus or habeas corpus. Parish of Orleans. No. 227-865.

Denied.


text:
    STATE of Louisiana ex rel. Randy LEDET v. Ross MAGGIO, Jr., et al. Warden, Louisiana State Penitentiary.
    No. 83-KH-1643.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Randy Ledet, applying for writ of mandamus. Thirty-Second Judicial District Court, Parish of Terrebonne.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. John FORD v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1287.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re John Ford, applying for writ of mandamus. Second Judicial District Court, Parish of Jackson. No. 22228.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Jesse BONVILLAIN v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-0597.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Jesse Bonvillain, applying for supervisory writs. Parish of Jefferson. No. 81-103, Division “F”.

Denied.


text:
    STATE of Louisiana, ex rel. Octave JACKSON v. Honorable Robert JOHNSON, Judge, 16th Judicial District Court, Parish of Iberia, Louisiana.
    No. 83-KH-0566.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Octave Jackson, applying for writs of certiorari and review. Parish of Iberia. No. 30361.

Denied.

DIXON, C.J., and CALOGERO, J., would grant an evidentiary hearing.


text:
    STATE of Louisiana v. Evans BROWN.
    No. 83-KH-0497.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
    Reconsideration Denied Jan. 16, 1984.
   In re Evans Brown, applying for writ of habeas corpus, prohibition, mandamus and supervisory writs. Criminal District Court, Parish of Orleans. Nos. 52321 and 52500.

Denied.


text:
    STATE of Louisiana, ex rel. Ulysses ROBINSON v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-0494.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Ulysses Robinson, applying for remedial writ. Parish of Orleans. No. 267-019.

Denied.


text:
    STATE of Louisiana ex rel. James Harold LOUIS v. Honorable Frank A. MARULLO, Judge, Criminal District Court, Sec. “D”, Parish of Orleans, New Orleans, La.
    No. 83-KH-0488.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re James Harold Louis, applying for writ of certiorari and/or review. Criminal District Court, Parish of Orleans. No. 287-940, Division “D”.

Denied.


text:
    STATE ex rel., Bobby WILLIAMS v. D.R. GUILLORY, Warden, Wade Correctional Center, Haynesville, Louisiana.
    No. 83-KH-0205.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Bobby Williams, applying for writ of certiorari.. Parish of Morehouse. No'. 81-53A.

Denied.


text:
    Mark FORET v. Steve SCHEFFIELD, and the Cycle Shop, Inc.
    No. 83-CC-2351.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Mark Foret, applying for writ of certiorari, prohibition and mandamus. Thirty-Second Judicial Court, Parish of Ter-rebonne. No. 60915. First Circuit Court of Appeal. No. 83-CW-0996.

Not considered.

Not timely.


text:
    STATE of Louisiana, ex rel. James SHERRY v. Honorable Miriam G. WALTZER and Clerk of Court, et al. Criminal Judicial District Court, Parish of Orleans.
    No. 83-KH-2408.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re James Sherry, applying for writ of mandamus. Criminal District Court, Parish of Orleans.

Granted. Application transferred to the Court of Appeal, Fourth Circuit, for its consideration.


text:
    STATE of Louisiana ex rel. Billy N. SANDERS v. WEST FELICIANA PARISH, 20TH JUDICIAL DISTRICT COURT.
    No. 83-KH-2373.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Billy N. Sanders, applying for writ of mandamus. Twentieth Judicial District Court, Parish of West Feliciana. No. W-76-1-9.

Granted. Relator’s petition is transferred to the District Court for its consideration in accordance with law.


text:
    John E. PICKRON and Judith A. Pickron v. Betty W. KREBS, et al.
    No. 83-C-2313.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Betty Webre Krebs, Individually, and as Testamentary Executrix of the Succession of John M. Krebs, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 218499.

Denied.

DENNIS, BLANCHE and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel., Bennie FREEMAN v. Norbert C. RAYFORD, Commissioner 19th JDC, Parish of East Baton Rouge.
    No. 83-KH-1830.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Bennie Freeman, applying for writ of mandamus. Parish of East Baton Rouge, Nineteenth Judicial District Court. No. 256561.

Denied. Moot.


text:
    Warren J. MOITY, Sr., v. ACADIAN WOODWORKS, INC. et al.
    No. 83-C-2383.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Warren J. Moity, Sr., applying for writ of review. Third Circuit Court of Appeal. No. 83-56. Fifteenth Judicial District Court, Parish of Lafayette.

Denied.


text:
    STATE of Louisiana v. Connie B. COMMONS.
    No. 83-KK-2407.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Connie B. Commons, applying for writ of certiorari. Ninth Judicial District Court. No. 205845. Parish of Rapides. Third Circuit Court of Appeal. No. K83-818.

Denied.

DIXON, C.J. and LEMMON, J., would not consider the application because not timely filed.


text:
    STATE of Louisiana v. Philip FURINO.
    No. 83-KK-2411.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Philip Furino, applying for writ of certiorari or review. Fifteenth Judicial District Court. No. 47899. Parish of Cal-casieu, Third Circuit Court of Appeal. No. K83-876.

Denied.


text:
    STATE of Louisiana v. Michael CAFFERY.
    No. 83-KK-2425.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Michael Caffery, applying for supervisory writ and/or writ of review and stay order. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 1-82-217, See. II. First Circuit Court of Appeal. No. KW/83/1204.

Denied.

DIXON, C.J., and BLANCHE, J., would grant the writ.


text:
    ASSOCIATES FINANCIAL SERVICE OF AMERICA, INC. v. Mario S. ROGELL. Mario S. ROGELL v. ASSOCIATES FINANCIAL SERVICES OF AMERICA, INC.
    No. 83-OC-2429.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Mario S. Rogell, applying for certio-rari, or writ of review. Court of Appeal, Fifth Circuit. Nos. 83-CA-642 and 83-CA-643. Twenty-fourth Judicial District Court, Parish of Jefferson. Nos. 272-734 and 268-926.

Denied.


text:
    STATE of Louisiana ex rel. Fran NITCHING v. Honorable Warren HOOD, Judge & Clerk of Court, 14th Judicial District Court, Parish of Calcasieu, Lake Charles, Louisiana.
    No. 83-KH-2431.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Fran Nitching, applying for writ of mandamus. Fourteenth Judicial District Court, Parish of Calcasieu. No. 12-194-79.

Denied. Moot.


text:
    STATE of Louisiana v. Marilyn RUTECKI.
    No. 83-KK-2452.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Marilyn Rutecki, applying for writ of certiorari. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 83-882. Fifth Circuit Court of Appeal. No. 83-KA-566.

Denied.


text:
    Theresa M. MARES v. Ernest MARTIN and Shelter Mutual Insurance Company.
    No. 83-OC-2454.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Shelter Mutual Insurance Company, applying for writ of certiorari. Court of Appeal, Second Circuit. No. 15931-CA. City Court of Winnfield, Ward 1. No. 1614. Parish of Winn.

Denied.


text:
    STATE of Louisiana ex rel. Matthew L. EDMONDSON v. 26TH JUDICIAL DISTRICT COURT OF BOSSIER PARISH, Judges Montz Wyche, Graydon Kitchen, Cecil Lowe Campbell, Presiding.
    No. 83-KH-2462.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Matthew L. Edmondson, applying for writ of supervisory control & motion to proceed herein in forma-pauperis, etc.

Denied. An identical application was filed and is pending in the Court of Appeal.


text:
    STATE of Louisiana ex rel., Clifford KEYS v. Honorable Isom GUILLORY, Judge, 27th Judicial District Court.
    No. 83-KH-2465.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Clifford Keys, applying for remedial writs. Twenty-seventh Judicial District Court, Parish of St. Landry. Nos. 29-666 and 29-995.

Denied. A hearing is scheduled for January 6, 1984.


text:
    STATE of Louisiana v. Homer B. WYNN.
    No. 83-KK-2467.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Homer B. Wynn, applying for writ of certiorari. Second Circuit Court of Appeal. No. 16,080-KW. Eleventh Judicial District Court, Parish of DeSoto. No. 48,-676.

Denied.


text:
    Vernell HAYNES v. Mary L. WILLIAMS, H.M. “Mike” Cannon, Clerk of Court for the Parish of East Baton Rouge; Jerry W. Fowler, Commissioner of Elections, James (Jim) Brown, Secretary of State of Louisiana; East Baton Rouge Parish Board of Election Supervisors, Individually and as Members, Nathaniel Bankston, Chairman, J. Clyde Geddes, Jr., H.M. “Mike” Cannon, Michael R. Wheeler, and Larry S. Bankston.
    No. 83-C-2505.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Vernell Haynes, applying for certio-rari, or writ of review. Court of Appeal, First Circuit. No. CE-83-1353. Nineteenth Judicial District Court, East Baton Rouge Parish. No. 272830.

Denied.


text:
    Pascal F. CALOGERO, Jr. v. STATE of Louisiana, et al.
    No. 83-CQ-2436.
    Supreme Court of Louisiana.
    Dec. 19, 1983.
   In re Certification from the Court of Appeal, First Circuit. No. 83-CA-1046.

Certification Granted. Briefs to be submitted immediately. It is ordered that the whole record be sent up and that the case be placed on the docket for briefing and oral argument on January 16, 1984.

WATSON, J., recused.


author: HALL, Judge. SEXTON, Judge,

text:
    Guinn BOSSIER and Hilma E. Bossier, Plaintiffs-Appellees, v. The DESOTO GENERAL HOSPITAL, Defendant-Appellant.
    No. 15491-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 7, 1983.
    Writ Denied Jan. 6, 1984.

      Watson, Blanche, Wilson & Posner by Peter T. Dazzio and George K. Anding, II, Baton Rouge, for defendant-appellant.
    Rothell & Cohn, Ltd. by David A. Rot-hell, Mansfield, for plaintiffs-appellees.
    Before PRICE, HALL, MARVIN, SEXTON and NORRIS, JJ.
   HALL, Judge.

In the early morning hours of October 12, 1979, Mrs. Hilma E. Bossier, a patient at The DeSoto General Hospital, fell in her hospital room and fractured her hip and knee. Mrs. Bossier, joined by her husband, filed suit for damages against the hospital, alleging the hospital’s negligence in failing to provide adequate care. After a jury trial a verdict in the form of answers to special interrogatories was returned finding the hospital guilty of negligence which was the proximate cause of Mrs. Bossier’s injuries, awarding Mrs. Bossier $125,000 for her injuries and awarding Mr. Bossier $23,516 for special damages. From a judgment rendered in accordance with the jury verdict the defendant appealed.

On appeal the defendant hospital makes the following specifications of error:

“Specification of Error No. I
“The jury erroneously concluded that De-Soto General Hospital was guilty of negligence.
“Specification of Error No. II
“The jury erroneously concluded that negligence on the part of DeSoto General Hospital was the proximate cause of the accident.
“Specification of Error No. Ill
“The jury clearly abused its discretion in that the amount of its verdict is clearly excessive.
“Specification of Error No. IV
“DeSoto General Hospital was substantially prejudiced by the failure of a juror to reveal, in response to questioning on voir dire, the existence of his ongoing representation in another matter by counsel for plaintiff.
“Specification of Error No. V
“The trial court erroneously failed to sustain defendant’s objections to plaintiffs’ counsel’s closing argument and demonstrative techniques utilized therein, which were highly prejudicial to defendant’s case, and erroneously declined to grant the application for new trial based upon the prejudice suffered by defendant through the prejudicial commentary and demonstrative techniques utilized by counsel for plaintiffs and objected to by counsel for defendant.”

On October 4,1979, Mrs. Bossier, then 57 years old, was admitted to The DeSoto General Hospital by her physician for treatment of arthritis and bursitis of the neck and shoulders. On October 12 at approximately 5:30 a.m., while still undergoing treatment at the hospital, she fell and fractured the femur and knee of her right leg. She was transferred to Schumpert Medical Center in Shreveport for evaluation and treatment of her injuries. Both injuries required corrective surgery and combined to produce a degree of permanent disability-

The major component of plaintiff’s treatment at the hospital was intensive drug therapy designed and intended to relieve the pain and muscle spasms plaintiff had been experiencing associated with her arthritis and bursitis. The doctor prescribed and plaintiff was taking daily doses of several muscle relaxers and pain killers, some of which contained narcotic agents. This regime of drug therapy continued from the time of plaintiffs admission through the time of her fall about a week later.

During her stay at the hospital the doctor prescribed and plaintiff received “routine care” consisting of the use of partial or short bedrails on her bed while sleeping, the routine periodic monitoring of her condition by hospital personnel on approximately an hourly basis, and the availability of assistance in ambulation upon request. “Routine care” such as Mrs. Bossier received did not include the use of restraints and affirmative warning to the patient not to attempt unaided ambulation, or constant supervision or observation of the patient by a family member or a hired nurse or sitter.

No one witnessed plaintiffs fall. Plaintiff had no independent recollection of the facts surrounding her fall. Several nurses responded to plaintiffs cries after her fall and found her lying near the foot of the bed on her back. The head of plaintiffs bed was facing south and her head was facing east when she was found. Her bed was equipped with partial or short side rails which were up at the time of the accident. Both the bed and her bedclothes were wet with urine. Several of the nurses testified that Mrs. Bossier told them at the time they found her or later in the morning that she had a dream that she had to get somewhere in a hurry and one of the nurses said she told her she ran off the foot of the bed. Plaintiff did not remember making these statements. When admitted to the Schumpert Medical Center later in the day, Mrs. Bossier told the doctor there that she did not know how she fell.

Plaintiff had experienced no unusual difficulty in getting around prior to her fall. The night before the night she fell she was seen by nurses walking around the hall during the middle of the night. However, plaintiff testified that in getting up to go to the bathroom she had begun to feel quite weak and would be slightly dizzy and had to be especially careful when she took a bath. Her husband and friends and relatives who visited her at the hospital testified that she appeared groggy, drowsy and the like. One witness said she said she “felt like she was flying.”

Prior to the fall Mrs. Bossier had received no warning from either the doctor or the hospital personnel against attempting unaided ambulation and had received no instructions or directions concerning having someone stay with her during the night. Her husband stayed with her during the daytime but went home at night. He testified that had he been advised to have someone stay with Mrs. Bossier he could and would have made arrangements to do so.

Specifications of Error Nos. I and II

Defendant contends that the jury erroneously concluded that The DeSoto General Hospital was guilty of negligence which was the proximate cause of the accident and plaintiffs injury.

A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from the dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and facts of the particular case. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974). However, a hospital is not an insurer of a patient’s safety and is not required to guard against or take measures to avert a situation which a reasonable person would not anticipate as likely to happen under the given circumstances. Killgore v. Argonaut-Southwest Insurance Co., 216 So.2d 108 (La.App. 2d Cir.1968).

The primary issue presented by this appeal is whether the defendant breached the duty enunciated above as it applied to this particular plaintiff under the particular circumstances of this case. After review of the entire evidence we conclude that the finding of the jury that the hospital was guilty of negligence which was a proximate cause of the plaintiff’s injury is not manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Stated otherwise, we conclude that the evidence is sufficient to support a finding by the trier of fact that the hospital breached its duty of due care to the plaintiff patient and that the breach of duty was a legal cause of the accident and plaintiff’s injury.

Both the level of supervision and the precautions taken to insure Mrs. Bossier’s safety during her stay at the hospital were those furnished as a matter of standard operating procedure by the hospital to all patients. Her bed was equipped with partial or short side rails, her condition was periodically monitored by hospital personnel on approximately an hourly basis, and she would have received aid in ambulating had she requested it. No special procedures beyond these standard operating procedures furnished to all patients were furnished to Mrs. Bossier.

Stricter programs or procedures for monitoring a patient’s condition as well as additional precautions to further restrict a patient’s ambulatory movements in order to insure personal safety existed and were used by the hospital for some patients at the time of Mrs. Bossier’s fall. Among these procedures and precautions were the use of full-length side rails on a patient’s bed, the use of restraints to insure that a patient did not leave the bed unaided, affirmative warnings by hospital personnel for a patient not to attempt unaided ambulation, and continuous supervision or observation of a patient by a family member or nurse furnished at the family’s expense. One or more of these procedures or precautions were utilized by the hospital in those cases not considered “routine”. Mrs. Bossier’s case was treated as “routine” and she did not receive the benefit of any of these additional procedures or precautions.

Mrs. Bossier’s treating physician, and doctors who served on the medical review panel, testified that in their opinion only routine care was called for, and that the procedures followed by the hospital in the care of Mrs. Bossier were proper and adequate.

Plaintiff was undergoing intensive drug therapy utilizing various muscle relaxers and pain killers, some of which contained narcotic agents. This therapy was designed and intended to relieve the pain and muscle spasms plaintiff had been experiencing by placing plaintiff in a sedate and less alert condition. Plaintiff’s treating physician testified that the program of therapy was achieving the desired results and, in fact, he intended to discontinue or reduce the drug therapy the next day after plaintiff’s fall.

Among the most common side effects associated with the drugs plaintiff was taking are sedation, drowsiness, and dizziness. Furthermore, plaintiffs’ expert witness, a specialist in clinical pharmacy with excellent credentials, testified that the drugs utilized in plaintiff’s treatment had certain “potentiating” and “residual” effects. The essence of this testimony was that the drugs would build up in the patient’s system over a period of time and that, when taken in conjunction with each other, the effects of the drugs administered were substantially magnified. Both the hospital personnel and plaintiff’s treating physician were aware of and familiar with these drugs and their common side effects and potentiating and residual qualities.

It is apparent from the evidence that, while sleeping, Mrs. Bossier felt an urgent need to go to the bathroom and that while attempting to do so in a sleepy or dreamlike state either fell from the bed while trying to get out of bed or fell after she got out of bed while trying to walk to the bathroom. More probably than not the effects of the drugs Mrs. Bossier was taking, serving their intended purpose and producing their known side effects, substantially contributed to Mrs. Bossier’s inability to successfully get out of bed and make it to the bathroom and to her fall which resulted in serious injuries to her.

It was reasonable for the jury to conclude that, considering the drug therapy treatment being administered to Mrs. Bossier, the hospital had a duty to provide more than routine care to Mrs. Bossier in order to protect her from just the kind of foreseeable accident which occurred. The duty of care owed by the hospital to this particular plaintiff encompassed the duty to undertake reasonable precautions designed to prevent or at least make it difficult for the patient to attempt to ambulate without assistance during the night.

Had any one or more of the additional precautions mentioned previously been taken by the hospital personnel it is more probable than not that the accident would not have happened. The short bedrails in use are designed to do no more than to keep a patient from rolling over and falling out of the bed. Had the bed been equipped with long side rails it would have been very difficult for Mrs. Bossier to get out of the bed without awakening sufficiently to be able to call for assistance or to more safely handle the situation on her own. Had Mrs. Bossier or her husband been advised of the importance of having someone with her during the night or been specifically directed to do so, such arrangements would have been made. With another person in the room the accident almost certainly would not have happened. Had Mrs. Bossier been specifically advised and instructed not to get out of bed by herself at night, there is a distinct possibility that even in her drowsy state, particularly after a week of following such instructions, she would have called for assistance.

The defendant hospital’s failure to take any of these additional precautions in light of the plaintiffs condition and treatment was a breach of its duty to protect the patient from the dangers that might result from the patient’s drug-induced incapacity. The duty breached by the hospital encompassed the risk of just such an accident as happened in this instance. Cause in fact exists because, but for the failure of the hospital to take adequate precautions, the accident probably would not have happened. Defendant’s breach of duty owed to the plaintiff was the legal cause of the accident and injuries and the defendant is liable for the damages sustained by the plaintiff.

Defendant contends that it fully discharged its obligation of care to the plaintiff by following the treating physician’s orders. The evidence discloses that the hospital personnel were well aware of the nature of plaintiff’s therapy and the risk associated with it. A hospital has an obligation and duty of care to its patients which is independent of any obligation or duty owed by the treating physician. Hunt v. Bogalusa Community Medical Center, supra; Free v. Franklin Guest Home, Inc., 397 So.2d 47 (La.App. 2d Cir. 1981). In the area of the patient’s safety and care while undergoing treatment, the absence of specific orders by the treating physician is not fatal to a plaintiff’s personal injury claim based on the hospital’s negligence. Smith v. West Calcasieu-Cameron Hospital, 251 So.2d 810 (La.App. 3d Cir.1971). The patient is entitled to rely upon the hospital’s expertise and independent professional judgment to supplement the treating physician’s direct orders when necessary to afford the patient the safe and reasonable health care the hospital is obligated to provide. Therefore, assuming the hospital strictly followed the treating physician’s order in this case, strict adherence to the physician’s orders cannot excuse the failure to provide safe and reasonable care to the patient, nor preclude a finding of negligence on the part of the hospital.

Defendant relies on four cases which are factually similar to the instant case to support its contention that defendant did not breach the duty owed to the plaintiff. Recovery was denied in Guidry v. State, Department of Hospitals, 317 So.2d 222 (La. App. 3d Cir.1975); Noble v. Insurance Company of North America, 248 So.2d 12 (La.App. 1st Cir.1971); Killgore v. Argo naut-Southwest Insurance Co., supra; and De Blanc v. Southern Baptist Hospital, 207 So.2d 868 (La.App. 4th Cir.1968). These eases are distinguishable from the instant ease on their facts, and illustrate the principle that each case of this nature must be judged on its own particular facts and circumstances. Compare Hunt v. Bogalusa Community Medical Center, supra, and Smith v. West Calcasieu-Cameron Hospital, supra, cited by the plaintiffs, in which recovery was allowed under similar facts. See also Daniel v. St. Francis Cabrini Hosp., etc., 415 So.2d 586 (La.App. 3d Cir.1982); Mullins v. Our Lady of the Lake Hosp., Inc., 402 So.2d 170 (La.App. 1st Cir.1981); Leavitt v. St. Tammany Parish Hospital, 396 So.2d 406 (La.App. 1st Cir.1981); Williams v. Sisters of Incarnate Word, etc., 341 So.2d 1299 (La.App. 3d Cir.1977); Jenkins v. Bogalusa Community Med. Center, 340 So.2d 1065 (La.App. 1st Cir.1976).

The jury’s finding of liability was not manifestly erroneous or clearly wrong.

Specification of Error No. Ill

Defendant contends that the amount of the award is clearly excessive and amounted to an abuse of discretion. The amount of the award for general damages was $125,000 and the award for special damages was $23,516.

The accident occurred October 12, 1979. When Mrs. Bossier was taken to the Schumpert Medical Center in Shreveport her injury was diagnosed as an intertro-chanteric fracture of the right hip/femur. The doctor placed Mrs. Bossier in traction and on the next day performed surgery on the hip, permanently implanting a metal plate with screws. Mrs. Bossier was hospitalized until October 30, a total of 18 days. After the passage of some time Mrs. Bossier was finally able to begin bearing weight on her right leg. At about this point ⅛ time she became aware that something was seriously wrong with the knee of the same leg. When she did not respond to clinical therapy she was readmitted to the hospital on May 14, 1980 for an arthroscopy of the right knee which required three days hospitalization. This test revealed that she had also sustained, as a result of her fall, a tear to the right lateral medial meniscus and a fracture of the tibial plateau of the knee with secondary degenerative post-traumatic arthritic changes. On June 11,1980 Mrs. Bossier was again admitted to the hospital and the doctor performed a hemiarthro-palsty to the knee, implanting a a plastic surface on the head of the femur to articulate or make contract with the tibial plateau. Mrs. Bossier was released from the hospital 14 days later. Therapy for the knee during the stay in the hospital and afterwards was very painful.

Mrs. Bossier was last seen by the doctor in November 1980, more than a year after her accident.

The doctor assigned a 10 percent permanent disability of the right leg due to the hip injury and a 25 percent permanent disability of the right leg due to the knee injury. He testified that plaintiff will have arthritic problems as a result of the knee injury and will likely have to repeat the entire procedure on the knee because the implant simply wears out and has to be replaced.

Mrs. Bossier testified, corroborated by her husband, that the accident has greatly changed her life from one of an active person to one who is no longer able to do the things that she once did and enjoyed. Both testified that since the accident Mrs. Bossier has not had one day free of pain.

Defendant cites several cases involving allegedly similar injuries in which the awards were substantially less than the award to Mrs. Bossier: Fontenot v. American Fidelity Fire Ins. Co., 386 So.2d 165 (La.App. 3d Cir.1980) — $5,000; Parker v. South La. Contractors, Inc., 370 So.2d 1310 (La.App. 1st Cir.1979) — $42,000; Teal v. Allstate Ins. Co., 348 So.2d 83 (La.App. 4th Cir.1977) — $15,000; Sansonni v. Jefferson Parish School Bd., 344 So.2d 42 (La. App. 4th Cir.1977) — $45,000; Panek v. Gulf Ins. Co., 341 So.2d 46 (La.App. 3d Cir.1976) — $80,000; Thibodeaux v. Fireman’s Fund Insurance Company., 325 So.2d 318 (La.App. 3d Cir.1975) — $15,000; Lowenburg v. Labor Pool of America, Inc., 296 So.2d 846 (La.App. 4th Cir.1974)— $50,000; Garner v. Crawford, 288 So.2d 886 (La.App. 1st Cir.1973) — $15,000. We have reviewed those cases and find that the injuries and the effects of the injuries on the plaintiffs in those cases are not closely similar to the circumstances involved in this case. In support of the award plaintiffs cite Merrell v. State, Through Dept. of Transp., 415 So.2d 660 (La.App. 3d Cir.1982) — $200,000; Dugas v. Jiminez, 413 So.2d 531 (La.App. 4th Cir.1982) — $210,000; O’Donnell v. Fidelity General Ins. Co., 344 So.2d 91 (La.App. 2d Cir.1977)--$85,-500. Again, the cases are not closely similar to the instant case.

Mrs. Bossier sustained two serious injuries to her right leg requiring surgery on two occasions, hospitalization for several weeks, and medical treatment for more than a year. She has a significant permanent disability of the right leg. She experienced considerable pain and continues to have pain on a daily basis. Her activities have been limited by the injuries. We find no abuse of the much discretion of the trier of fact in the award of $125,000 general damages to Mrs. Bossier. No showing is made that there was any error in the award of special damages to Mr. Bossier on behalf of the community.

Specification of Error No. TV

Defendant contends that it was substantially prejudiced by the failure of a juror to reveal, in response to questioning on voir dire, the existence of his ongoing representation by counsel for plaintiffs in another pending lawsuit. Defendant emphasizes that this matter takes on added significance because the jury verdict was by a 9 to 3 vote and the juror in question was one of the nine who voted in favor of the verdict. Under LSA-C.C.P. Art. 1795, nine is the minimum number of jurors who must concur to render a verdict. Defendant argues that a new trial should have been granted because of jury misconduct under the provisions of LSA-C.C.P. Arts. 1814, 1971, 1972, and 1973.

Although the record does not contain a transcript of a colloquy between counsel and the trial judge prior to voir dire examination, it appears from statements in the briefs of both counsel and statements made during argument of the motion for new trial that, prior to voir dire examination, counsel for the plaintiffs advised counsel for the defendant and the court that his office had represented the juror in question, Huey Bailey. Additionally, plaintiffs' counsel disclosed a prior employment relationship with another juror and also with the child of yet a third juror. These disclosures were made so that the jurors involved could be excused at that time if deemed appropriate. Defense counsel indicated that he wished to observe these individuals during their examinations and then decide whether or not they should be challenged for cause or peremptorily.

During voir dire examination, the following colloquy occurred between Bailey and plaintiffs’ counsel:

“Q. You have known me, haven’t you?
“A. Yes, sir.
“Q. I have represented you before?
“A. Yes.
“Q. Would that have any bearing on your ability to give both these parties a fair trial?
“A. No, it wouldn’t.

Defense counsel’s examination of this juror is rather perfunctory and is set forth in its entirety below:

“Q. Mr. Bailey, I didn’t catch your employer?
“A. I work for the Jenkins Estate at Jenkins Liquor Store.
“Q. Have you ever been a juror before?
“A. No, I haven’t.
“Q. Have you ever been a party to a lawsuit before, either as a Plaintiff or as a Defendant?
“A. No, I haven’t.
“Q. When you were hospitalized before were you satisfied with the treatment you received and everything went alright with you?
“A. Yes.
“Q. By the same token or on the other side of the coin, can you require as the Judge will tell you will be required the Plaintiff must prove its case before you award him damages, leaving out any sympathy you might have for Mrs. Bossier?
“A. Yes.
“Q. Is there any reason at all that you can think of that you wouldn’t be able to be a fair and impartial juror in this case?
“A. None whatsoever, no.”

In its motion for new trial the defendant alleged, and plaintiffs’ counsel admits, that at the time of trial and thereafter the law firm of plaintiffs’ counsel represented the juror in an ongoing pending lawsuit. The record contains no information about the nature of the suit. Defendant argues that the juror’s answer to the question of whether he had ever been a party to a lawsuit was false and that the failure of the juror and of plaintiffs’ counsel to disclose the ongoing representation deprived defendant of the opportunity to use a challenge for cause or peremptory challenge to remove this juror. Furthermore, defendant contends these circumstances tainted the decision-making process in this case, prevented the impartial administration of justice, and constituted grounds for a new trial.

Stating that there are no Louisiana cases in point, defendant relies on three decisions rendered in the states of Mississippi and Florida, Marshall Durbin, Inc. v. Tew, 381 So.2d 152 (Miss., 1980); Mississippi Power Company v. Stribling, 191 Miss. 832, 3 So.2d 807 (Miss.1941); and Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla.App. 2d Dist.1972). In each of those cases there was a failure on the part of a juror and counsel to disclose material facts relating to the representation of the juror by an attorney involved in the trial. In those cases the courts held that concealment of material information had deprived a party to the action of the opportunity to exercise challenges, either peremptory or for cause, that the juries were therefore improperly established and the party was deprived of his statutory and constitutional right to trial before a fair and impartial jury. The courts held that a new trial was required, irrespective of a showing that bias or prejudice caused an unjust verdict. It should be noted, however, that in the Skiles case the court held that a new trial will be granted when a prospective juror conceals a material fact sought to be elicited by questions asked during voir dire examination which is conducted in a diligent manner and where the counsel’s examination in no way contributes to the failure to disclose the alleged bias or partiality.

Under Louisiana law not every instance of jury or juror misconduct necessitates the granting of a new trial or the remand of a case for a new trial. Under the provisions of LSA-C.C.P. Arts. 1814, 1971, 1972, and 1973, as read together, a new trial is mandated only upon a showing of jury misconduct which is of such a grievous nature as to preclude the impartial administration of justice. Otherwise, the granting of a new trial is left to the sound discretion of the trial court. Improper behavior by a jury is not defined but must be determined by the facts and circumstances of the particular case. Blandino v. Brown Erection Co., Inc., 341 So.2d 577 (La.App. 2d Cir.1977).

Furthermore, even where there is jury misconduct or other circumstances which would bear on the validity of the verdict or the weight to be given to it, a Louisiana appellate court is required to review both the facts and the law and to render any judgment which is just, legal, and proper upon the basis of the record before it. Art. 5, Section 10, Louisiana Constitution and LSA-C.C.P. Art. 2164. Where a jury verdict must be disregarded because of trial error or jury misconduct, the appellate court should nevertheless ordinarily undertake an independent evaluation of the facts and adjudicate the controversy before it. However, where the weight of the evidence is so nearly equal that a firsthand view of the witnesses is essential to a fair resolution of conflicting evidence and issues, the case should be remanded for a new trial. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980); Boyette v. Auger Timber Co., 403 So.2d 800 (La.App. 2d Cir.1981).

As previously noted, the juror or jury misconduct issue in this ease takes on added importance because the juror in question was one of the nine who concurred in the verdict, nine being the minimum number necessary to reach a verdict. Further, our affirmance of the jury’s finding of liability in this case rests on giving full weight to the findings of the jury, the trier of fact, and application of the manifest error or clearly wrong rule of appellate review. In this case the weight of the evidence is so nearly equal and a fair resolution of the conflicting evidence and issues depends so strongly on a firsthand view of the witnesses and credibility evaluations only a trier of fact could fairly make, that it would be difficult for this appellate court to fairly find a preponderance of the evidence from the cold record. Accordingly, it is necessary that we determine whether there was jury or juror misconduct in this case of such a nature as to indicate that impartial justice has not been done or that the jury verdict was rendered by a jury that was anything less than fair and impartial.

In this case the defendant has shown only the presence of an individual on the jury who might have had some reason to be partial in favor of the plaintiffs’ counsel. There is, of course, no evidence establishing that the juror was partial or that he exercised undue influence upon other jury members. During voir dire examination of the juror, the juror stated that he would decide this case based on the facts and the law as given him and that there existed no impediment to his impartial deliberation. The mere presence of an individual on the jury who was being represented by plaintiffs’ counsel in another entirely unrelated matter in and of itself does not establish misconduct or partiality sufficient to preclude the impartial administration of justice as required, by LSA-C.C.P. Art. 1814 and to mandate the granting of a new trial. See Rains v. Diamond M. Co., 396 So.2d 306 (La.App. 3d Cir.1981).

The heart of the defendant’s complaint concerning this juror is the possibility of partiality based on his representation by the plaintiffs’ counsel. The fact that there was an attorney/client relationship between plaintiffs’ counsel and the juror was revealed by plaintiffs’ counsel prior to voir dire examination and by the juror in answer to plaintiffs’ counsel’s question on voir dire examination. If counsel for defendant was concerned about the juror’s impartiality because of his relationship to plaintiffs’ counsel, then it was incumbent upon defendant’s counsel to pursue the nature and extent" of the relationship in his voir dire examination of the juror, which in this case was most perfunctory. We are unable to discern how the fact that counsel’s representation of the juror was in a current matter as distinguished from a concluded matter would affect the possibility of partiality on the part of the juror.

When asked if he had ever been plaintiff or defendant in a lawsuit, the juror replied that he had not, which was later revealed to be an incorrect answer. It should be noted that this same question was asked by counsel to each and every potential juror on voir dire examination and was obviously directed toward the juror’s possible bias for or against plaintiffs or defendants or in connection with particular kinds of claims, and was not directed toward the juror’s relationship with counsel for plaintiffs in this case. Counsel for defendant elected not to pursue the relationship with plaintiffs’ counsel by further questioning and elected not to challenge the juror peremptorily or for cause.

Our review of what transpired in this regard leads us to conclude that although the answer of the juror to the question concerning whether or not he had ever been a plaintiff or defendant in a lawsuit was incorrect, neither the juror nor plaintiffs’ counsel intentionally misled defendant’s counsel or the court concerning the relationship between the juror and plaintiffs’ counsel. We find no jury or juror misconduct in this case indicating that impartial justice has not been done or indicating that the jury verdict should not be given full weight as the fair and impartial finding of the trier of fact.

Specification of Error No. V

Defendant complains that it was prejudiced by unfair and highly prejudicial arguments and demonstrative techniques made by plaintiffs’ counsel in closing argument. Specifically, defendant complains of counsel displaying 120 Tylenol tablets to the jury, of counsel’s comment on the failure of defendant to call a nurse as a witness, and of counsel’s comment to the effect that defendant’s case was based on the theory that the accident was caused by the negligence of plaintiff’s physician. The bottle of pills was displayed to the jury to dramatize the number of pills plaintiff took during the time she was in the hospital prior to the fall.

The arguments do not appear to have been improper or beyond the limits of fair advocacy, nor designed to unduly inflame the jury. We discern no impropriety or undue prejudice and find this specification of error to be without merit.

Decree

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.

SEXTON, J., dissents and assigns written reasons.

PRICE, J., dissents for the reasons assigned by SEXTON, J.

SEXTON, Judge,

dissenting.

In order to find for the plaintiff, this jury must have, (a) agreed with plaintiff’s strenuous assertions that the hospital was involved in a “cover-up” of active fault — i.e., failing to raise the bedrails, erroneously dispensing too much medication, etc. — or, (b) determined, as the majority here holds, that the hospital had a duty to do something more because of the nature of the drug therapy plaintiff was undergoing.

As to the former, in my view any such finding is not supported by the record and is therefore manifestly erroneous.

As to the latter, I disagree as a matter of law. There were no complaints to the doctor or to the nurses by the plaintiff or her husband at any time prior to the accident that she was dizzy, disoriented or unduly drowsy. At four a.m. the night before the accident she was seen walking the halls of the hospital complaining of inability to sleep. Because of her progress, her physician had determined to discharge her within a day or so, and had in fact reduced her medication on the day previous to the accident.

The testimony of the expert pharmacologist, as I view it, is not that side effects are to be expected from the regime of drug therapy plaintiff was undergoing, but that they were possible. There are possible side effects to almost every medication, even those which do not require a doctor’s prescription. However, there was nothing known by the physician or the hospital which should have given notice that this patient was about to have a problem because of too much medication. Furthermore, long bedrails, warnings, and/or a sitter would not have prevented this accident. Additionally and parenthetically, I believe that the position of the majority has the potential to cause an escalation of the cost of hospital care without any significant medical benefit.

I respectfully dissent.


author: DOUCET, Judge.

text:
    GENERAL AMERICAN OIL COMPANY OF TEXAS, et al., Plaintiffs-Appellees, v. Pamela Faye MECHE, et al., Defendants-Appellants.
    No. 83-223.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Shelton & Legendre, Thomas F. Porter, IV, Lafayette, for defendants-appellants.
    Richard W. Simmons, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Randall C. Songy, Liskow & Lewis, Thomas M. McNamara, Lafayette, for plaintiffs-appellees.
    Before DOUCET, LABORDE and KNOLL, JJ.
   DOUCET, Judge.

In this mineral lease dispute the trial court sustained the plaintiff-lessees’ exception of prescription and dismissed the defendants’ reconventional demand insofar as it pertained to an alleged tort that occurred more than one year prior to said demand. The reconventional demand was filed in response to a petition for a declaratory judgment seeking enforcement of the oil, gas and mineral lease which is the object of litigation. The tort alleged was changing the effective date of the mineral lease and recording the altered lease in the public records. The defendants appeal, alleging the trial court erred in (1) finding the doctrine of contra non valentem inapplicable, and (2) concluding the alleged actions of lessees were not a continuing tort. We affirm.

The trial judge assigned excellent reasons for judgment which we adopt hereinafter as our own.

“On August 23, 1982, this Court was presented with various rules and exceptions. By stipulation the parties agreed to waive a jury trial and to respond to the plaintiff’s discovery. Evidence was presented on two issues. First being the question of whether any action that the lessors may have had, had prescribed. Second was the issue whether the lessors have stated a cause of action.

The pending litigation was commenced by the filing of a petition for declaratory judgment by General American Oil Company of Texas, Santa Fe Minerals, Inc., the Stone Oil Corporation and May Petroleum, Inc. These lessees or assigns seek to have this Court resolve a contractual uncertainty concerning the force and effect of an oil, gas and mineral lease. This uncertainty was created because of a dispute between the lessees and the seven landowners, the lessors, regarding the effective date of the lease in question.

NO CAUSE OF ACTION

It is the ruling of this Court that the effective date of the lease is not at this time before the court. Because of this ruling and the nature of the exception of no cause of action, filed on behalf of the lessees, the exception will be referred to the merits. The Court notes that the answer, affirmative defense and reconven-tional demand filed on behalf of the lessors seek damages “as a result of the slandering of the title on the aforedescribed property.” While Louisiana has adopted fact pleading and has suppressed the theory of the case doctrine, this Court believes it must recognize, at this time, that there is not a slander of title giving rise to the traditional jactitory action which is now but a part of the possessory action. Since the lessor and lessee cannot be deemed to possess adversely and the lessors are not allowed to bring a real action against the lessee concerning the question of whether a lease has expired, the disturbances in law for which CCP 3659 provides a cause of action is not met. CCP 3670. Defendants and plaintiffs in reconvention have agreed to and were ordered to amend their recon-ventional demand so as to state an alternative demand based on plaintiffs and defendants in reconvention refusal to cancel the lease in question in the Clerk’s Records.

PRESCRIPTION

The petition in reconvention and the second supplemental and amending recon-ventional demand filed on behalf of the landowners seeks damages for the alleged alteration of an oil, gas and mineral lease on or before September 6, 1977. Counsel for the lessors assert that the damages they allege arise ex contractu and thus the ten year prescriptive period of C.C. Article 3544 should be applied. In support of this contention counsel cites the case of Federal Insurance Co. v. Insurance Co. of No. America, 262 La. 509, 263 So.2d 871 (1972) which provides:

“that when a party has been damaged by the conduct of another arising out of a contractual relationship, the former may have two remedies, a suit in contract, or an action in tort, and that he may elect to recover his damages in either of the two actions.”

But counsel failed to cite the following sentence which provides that “In such cases, the prescription applicable is determined by the character which plaintiff gives his pleadings and the form of his action.”

This court holds that one year tort prescriptive period must be applied to this case. C.C. Article 3536. The alleged alteration of the mineral lease by Messrs, de-Gravelle, Daigle and Thomas is a claim based in tort. Their alleged actions, if proven, do not arise out of a contractual relationship but rather on a wrong independent of the contract. Further, the recon-ventional demand does not seek recompense under the terms of the contract. The alleged damages result from an “inability to lease.” Such damages could only have arisen after the termination of the mineral lease, for by its very nature a mineral lease prevents the landowners from further leasing the land for exploration and production of the minerals during its term.

The reconventional demand was filed on September 3, 1980 more than three years after the alleged tortious conduct and thus under C.C. Article 3536, no suit can be maintained on such a cause of action unless the running of the prescriptive period has been suspended or interrupted. It is the contention of the landowners that any prescriptive period had not yet commenced to run prior to their filing of the reconventional demand because of the doctrine that a continuing act that causes damage prevents the running of prescription until that act is completed. The claimed continuing act giving rise to the successive damages in this case was the recordation of the lease which slandered the landowner’s titles. As the court has previously stated there has been no disparagement of the landowners’ titles and accordingly no slander of title by the recordation of the lease in question. Thus the Court holds inapplicable the case of Craig v. Montelepre Realty Co., 252 La. 502, 211 So.2d 627 (1968) which sets forth the jurisprudence regarding a continuing act which prevents the running of prescription.

Also presented to the Court was the contention that the landowners first knowledge of the alleged unauthorized alteration of the effective date of the lease occurred in 1980. The lease in question provided for a three year primary term and the landowners claim that it was the activities of the lessees after this primary term which caused them to first question the terms of the lease and to seek the counsel of Mr. Nolan Edwards, a member of the Louisiana bar. On this ground the lessors rely upon the doctrine of contra non valentum agere nulla curiet praescriptio, that is, as to a person unable to bring an action no prescription runs. Hyman v. Hibernia Bank & Trust Company, 139 La. 411, 71 So. 598 (1916).

Here the burden of proving that the cause of action had not prescribed is upon the lessors. Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App. 3rd Cir.1974). It is the lessors burden to prove that the cause of action was not known or reasonably knowable until 1980. This Court holds that the seven lessors have failed to prove that the oil companies prevented them from obtaining information regarding the alleged variance of the effective date of the lease. On the contrary, the evidence establishes that recorded lease executed in two counterparts shows an effective date of June 20, 1977, and more importantly the delay rental checks of both The Stone Oil Corporation and General American Oil Corporation of Texas display the June 20, 1977 date.

Cartwright v. Chrysler Corporation, 255 La. 597, 232 So.2d 285 (1970) provides:

“The rule that prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, applies only when such ignorance is not wilful and does not result from negligence ... Also, it is not necessary that the party have actual knowledge of the conditions as long as there is ‘constructive notice.’ Whatever is notice enough to excite attention and put the owner on his guard and all for inquiry is tantamont to knowledge or notice of every thing to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription.”

The delay rental payments made by The Stone Oil Corporation in 1978 to the seven lessors through their depository banks all had the following language:

“This payment is for rental in lieu of development under, and continues in force that certain Oil, Gas and Mineral Lease Dated June 20, 1977 .... ” “This payment is made for the period from June 20, 1978 to June 20, 1979 and is made on behalf of The Stone Oil Corporation.”

These checks were received by five different depository banks and by stipulation the parties agreed that these banks received both the top portion of the check, the draft on Hibernia National Bank in New Orleans, and the lower portion of the document which refers to the June 20, 1977 date.

By further stipulation the parties agreed it was the customary banking practice for each of the five depository banks to mail to each of the landowners a copy of the delay rental check. Louisiana jurisprudence has adopted “a presumption of due receipt by addressee of a letter properly addressed, postage stamped and mailed.” New Orleans Silversmith, Inc. v. Wormser, 258 So.2d 592 (La.App. 4th Cir.1972). By stipulation the parties agreed the banks sent to the landowners either a cashier’s check or a deposit slip along with a copy of the delay rental by first class prepaid postage to a proper address within an envelope with a return address.

The Court notes the Fourth Circuit in New Orleans Silversmith, Inc., supra, held the testimony of the defendant that he did not recall receiving the letter did not overcome the rebuttable presumption of receipt of the mailing.

This Court holds that even without the presumption established by the mailing of the copy of the delay rental check the depository banks must be considered agents of the lessors. These banks were designated under the lease to act as depository for the landowners and under basic mandate law the knowledge of an agent, mandatory, is imputed to the principal. Such knowledge “is imputed to the principal even if the agent neglected to specifically convey those facts to the principal.” Bank of Louisiana v. Argonaut Insurance Company, 248 So.2d 349 (La.App. 4th Cir.1971).

1. Loyce Meche

The Stone Oil Corporation by check dated May 25, 1978, paid $2,006 to the Bank of Commerce & Trust Company of Rayne for “that certain Oil, Gas and Mineral Lease date June 20, 1977” to cover “the period from June 20, 1978 to June 20, 1979.” The depository bank by cashier’s check paid the $2,005 delay rental. The evidence establishes that this cashier’s check was cleared and paid on June 16, 1978. In a similar manner General American Oil Company of Texas paid the 1979 delay rental for the June 20, 1979 to June 20, 1980 period. The bank again by cashier’s check in 1979 paid the $2,005 which cleared on June 12, 1979. No testimony was offered by Ms. Meche to overcome the evidence that the banking practice of the Bank of Commerce & Trust Co. of Rayne was to send a copy of the delay rental payment, accordingly this Court holds that her cause of action has prescribed.

2. Leoval Meche

The Bank of Commerce & Trust Co. of Rayne also acted as the depository bank for Leoval Meche. Stone in 1978 made the delay rental check payable to the bank under the same terms as its check for the account of Joyce Meche. On June 1, 1978, the $2,005 delay rental was deposited in the same bank. The General American payment in 1979 for Leoval was made on the same check as the payment of Joyce Meche. Like Joyce Meche, Leoval did not testify and this Court holds his cause of action has prescribed under the one year tort prescription.

3. Cleven Meche

Mr. Meche, also known as Cleveland Meche, using the Rayne State Bank & Trust as his depository bank had the $2,010, less a $5 processing fee, deposited for his account. In 1979, similar action was taken with the General American check. He testified that with regard to the delay rentals “I got a note from the bank that I had a draft deposited there.” (Tr. p. 11, lines 13 and 14). At the deposition of Mr. Meche on May 23, 1981, he handed to Mr. Simon, attorney for General American, a document he received from the bank in 1978. (Tr. p. 12, line 8). This document was The Stone Oil rental check with the attached stub which refers to June 20, 1977. There is thus no question that Mr. Meche had notice of the lease being dated June 20, 1977 rather than May 26, 1977. As to Mr. Cleven Meche, the exception of prescription is sustained.

4. Willie Belle Meche Efferson

Using the Central Bank & Trust Company of Boyce as her depository Mrs. Effer-son received the 1978 Stone payment which was deposited to her account on June 6, 1978 and the 1979 General American payment which was deposited on May 24, 1979. She responded, “Yes, except the date.” (Tr. p. 37, line 18) to a question asking if she had seen the May 25, 1978 Stone Oil rental cheek or any portion of it. Likewise, she acknowledged receipt of the delay rental payment by General American for.the June 20, 1979 to June 20, 1980 period. (Tr. p. 38, line 1). Her action has prescribed.

5. Lorena Meche Reynaud

Mrs. Reynaud’s 1978 payment made through the First National Bank in DeRid-der was paid by that bank’s cashier’s check, which was cleared on June 8, 1978. The 1979 payment was also made by the bank through the use of a cashier’s check which cleared on May 31, 1979. She testified in receiving the 1978 Stone payment and the 1979 General American payment, both of which have the June 20 date on the check. (Tr. p. 33, lines 14 through 20). Mrs. Reynaud also acknowledged that she “did receive some notification of the payment of the rentals.” (Tr. p. 52, lines 13 and 14). The tort claim of hers has prescribed.

6. Grace Meche Hendrick

Mrs. Hendrick’s payments for delay rentals in 1978 and 1979 were made through the Rayne State Bank and Trust. The 1978 Stone payment was deposited on May 31, 1978 and the 1979 General American payment was deposited on May 24, 1979. She testified that “I realized that there was some discrepancy after we checked with Mr. Edwards to see — I mean what was going on about the lease.” (Tr. p. 11, lines 16 through 18). This meeting with Mr. Nolan Edwards, an attorney, occurred in 1980. She did not recall if she received the Stone delay rental payment (Tr. p. 45, line 23) but did acknowledge money was deposited to her account for the 1978 delay rental. (Tr. p. 44, line 20). The Court holds that Mrs. Hendrick’s tort action has prescribed.

7. Pamela Faye Meche

Through the Guaranty Bank & Trust Co. of Lafayette, Mrs. Meche received the 1978 and 1979 delay rentals. The 1978 payment was deposited to her account on May 31, 1978 and the 1979 payment was deposited May 24, 1979. She stated she became aware there was a dispute “around the middle of May of 1980.” (Tr. p. 6, line 21). Ms. Meche is unable to testify whether she did or did not receive the lower half of the Stone delay rental check. She stated, “If I saw it, I didn’t make any note of this is what it was,” (Tr. p. 21, line 25 through p. 21, line 1) and that “[Ejven if I received them, I don’t remember seeing them.” (Tr. p. 23, line 14). Like the other lessors this Court holds her tort action has prescribed.

Exceptions of prescription are maintained. The reconventional demands of the landowners are dismissed as to Charles C. deGravelle, Raymond Daigle, Thomas E. Barry and the Stone Oil Corporation as to the alleged tort of changing the effective date of the mineral lease.”

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

AFFIRMED.


author: KLIEBERT, Judge.

text:
    SUCCESSION OF Charles ORLANDO. SUCCESSION OF Josephine B. ORLANDO. SUCCESSION OF Josephine Barbara ORLANDO.
    Nos. 83 CA 259, 83 CA 260 and 83 CA 261.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Rehearing Denied Jan. 17, 1984.
    Writ Denied March 16, 1984.

      Leon C. Vial, III, Hahnville, George T. Mustakas, II, Porteous & Mustakas, Me-tairie, for Frank C. Orlando, plaintiff and appellant.
    Paul S. Fiasconaro, Fiasconaro & Fiasco-naro, New Orleans, for Dominick S. La-mandre, defendant and appellee.
    Jesse S. Guillot, New Orleans, for Antoinette Santangelo, defendant and appel-lee.
    Before CHEHARDY, KLIEBERT and BOWES, JJ.
   KLIEBERT, Judge.

On January 14, 1982, the trial judge rendered judgments on various unspecified rules pending in these consolidated proceedings. After a hearing on an application for a new trial, the original judgment was amended on March 5, 1982 to clarify some of the language. The matter is now before us on a devolutive appeal brought by Mr. Frank Orlando and answers to that appeal filed by Mrs. Antoinette Santangelo and Mr. Dominick A. Lamandre.

These succession proceedings have been pending for a long time and Mrs. Santange-lo has occupied different fiduciary relationships at different times. There was disagreement from the initial opening of the succession of Charles Orlando in 1973 to the present time. Some of the rules filed by the litigants were applicable in only one of the succession proceedings and some in both. Further, when ruled upon by the trial judge, there had been hearings over a period of several years and apparently there had been agreements as to what rules were to be heard and ruled upon between the attorneys and the court which are not now reflected by the record before us. The trial judge gave no written reasons for his judgments and did not itemize the rules being ruled upon in the judgment of January 14, 1982. There is now some disagreement between the litigants as to what rules were to be ruled upon and what rules were in fact ruled on. Adding to the confusion and complexity is a poorly assembled record.

In order to put the issues in proper perspective, it is necessary to review the manner in which they arose. The decedent, Charles Orlando, died in 1973. His wife, Josephine Barbara Orlando, died in 1977. Three children, namely, Vincent, Frank and Antoinette (now Mrs. Antoinette Santange-lo) were born of the union. The other litigant is Dominick Lamandre, the son from a previous marriage of Mrs. Santan-gelo and the grandson of the decedents, and a legatee under his grandmother’s will.

The decedent and his two sons were in business together. Initially, the business was conducted as the sole proprietorship of Charles Orlando, then as a partnership, and, afterwards, as a corporation.

Prior to the death of Charles Orlando, problems in the operation of the business caused disagreement in the family. Upon the death of Charles Orlando, Frank and Vincent were recognized and confirmed as the co-executors named in his will. Subsequently, Vincent resigned as co-executor and his mother was appointed as dative testamentary co-executrix. Initially, little, if anything, was done towards the administration of the succession of Charles Orlando, apparently due to the fact Mrs. Orlando had the usufruct over the property belonging to the succession.

When Mrs. Josephine Orlando died in 1977, Mrs. Antoinette Santangelo was recognized and confirmed as the executrix of her succession. Also, she applied for and was appointed as dative testamentary co-executrix of the succession of Charles Orlando (the position previously held by her mother). It was at this point the various attacks on previous donations and/or sales were made by rules. These attacks gave rise to the ancillary matters which were also raised by rules.

The judgments on appeal, originally rendered on January 14, 1982 and amended on March 5, 1982, are as follows:

“IT IS ORDERED:
(1) That the renunciation of Vincent Orlando is valid and is hereby recognized;
(2) That Frank C. Orlando is discharged as co-executor, with Antoinette Santangelo to remain as sole executrix, the Court being of the firm opinion that one person rather than two can better be more (sic) expeditiously direct these proceedings toward a termination;
(3) That the motion to remove Paul S. Fiasconaro as attorney for Dominick S. Lamandre is denied;
(4) That the real property sold to Dominick S. Lamandre is not subject to collation; (As amended on March 5, 1982)
(5) That the inter vivos donations of Mr. and Mrs. Charles C. Orlando to Frank C. and Vincent Orlando are valid and not subject to collation; (As amended on March 5, 1982)
(6) That Antoinette Santangelo, as executrix, can take further action with regard to the dation en paiement to John Szuch, as the Court does not believe that it has, as of this time, sufficient information regarding the legality or illegibility of the dation;
(7) That Antoinette Santangelo, as executrix, can and should take whatever further steps are necessary to conclude these proceedings without further delays; and
(8) That the request for attorney fees by Walter E. Kollin is recognized, and, accordingly, the executrix is directed to take this request into consideration before rendering a final accounting.”

In his original brief, counsel for Frank Orlando urged as error the trial judge’s (1) removal of Frank Orlando as co-executor of his father’s succession, and (2) refusal to make Dominick Lamandre collate the real property conveyed to him by the decedent, Josephine B. Orlando, by act dated January 8, 1976. In a supplemental brief, counsel for Frank Orlando additionally assigned as error the trial judge’s (1) refusal to order the removal of Mrs. Antoinette Santangelo as executrix of the succession of Mrs. Josephine B. Orlando, and (2) refusal to order Dominick Lamandre to collate the real estate bequeathed to him by the decedent, Josephine B. Orlando, in her will. We do not consider the latter assignments of error listed by Frank Orlando in his supplemental brief because there is nothing in the judgment of January 14, 1982, as amended by the judgment dated March 5, 1982, to indicate that these issues were ruled on by the trial judge.

In his answer to the appeal, Mr. Dominick Lamandre assigns as error the trial judge’s (1) refusal to have Frank Orlando collate the business and properties operated in the name of Frank B. Orlando and Sons, Inc., donated to him by the decedents (Frank and Josephine Orlando) by act dated August 12, 1965, and (2) refusal to order Frank Orlando to produce documents requested by Dominick Lamandre. We will not consider the second issue raised by counsel for Mr. Lamandre because there is no indication this was ruled on by the trial court.

In her answer to the appeal, Mrs. Antoinette Santangelo assigns as error the trial judge's (1) refusal to have Frank Orlando collate the business and properties operated in the name of Frank B. Orlando and Sons, Inc. donated to him and his brother Vincent by the decedents, Frank and Josephine Orlando, (2) refusal to declare the dation en paiement to John Szuch declared a nullity, and (3) refusal to have Frank Orlando account for the sale of movables.

We now consider the issues under the headings hereinafter indicated:

REMOVAL OF EXECUTOR

In his judgment, the trial judge said that Frank Orlando should be removed as co-executor of his father’s succession to “more expeditiously direct these proceedings toward a termination”. Counsel for Frank Orlando argues that the reason for removal given by the trial judge is not one of the reasons provided by the Civil Code for removal of a succession representative.

We note that it is well established law, an executor who qualifies under the provisions of La.C.C.P. Article 3097 cannot be removed from office except for one of the reasons stated in La.C.C.P. Article 3182 or the breach of the fiduciary duty imposed by La.C.C.P. Article 3191.

La.C.C.P. Article 3182 authorizes the court to remove a succession representative who “has failed to perform any duty imposed by law or by order of court ”. Also, La.C.C.P. Article 3191 imposes on the succession representative the duty of “collecting, preserving and managing the property of the succession in accordance with law”.

By order dated July 11, 1977, Frank Orlando was ordered to account for his administration. He never complied with the order, nor did he assist or join with the co-executrix in managing the property or in filing reports of their administration. When questioned as to why he did not perform the required functions, his answer was “Never was asked”.’ Although there is strong reluctance to undo the will of the testator by removing his designated succession representative, there is a point at which the actions of a succession representative is impeding the ultimate basis for the administration, i.e., delivery of the succession assets to the legatees and/or their heirs. The record leaves little doubt here that Frank Orlando’s refusal to perform his fiduciary duties was impeding the administration; hence, we hold the trial judge acted properly in removing Frank Orlando as co-executor of his father’s estate.

COLLATION OF DONATION TO DOMINICK LAMANDRE

By act dated January 8, 1976, Josephine Orlando, by an authentic act passed before a Notary Public, conveyed to Dominick Lamandre, her grandson, property which she had inherited from her parents and thus formed part of her separate property. The stated consideration for the sale was $35,000.00, represented by a bearer note. Subsequently, an act of correction was executed, changing the stated consideration to $45,000.00, of which $10,000.00 was said to have been paid at the time of the sale and the remaining $35,000.00 was represented by a bearer note.

Filed in evidence was an appraisal showing the property was valued at $50,650.00. The purchaser also filed as exhibits:

(1) A credit sale by Josephine B. Orlando to Dominick S. Lamandre;
(2) A sale by Dominick S. Lamandre to First Homestead & Savings Association;
(3) A promissory note by Dominick S. Lamandre in the amount of $35,-000.00;
(4) An act of correction by Joseph B. Orlando and Dominick S. Lamandre dated February 17, 1976;
(5) A promissory note by Dominick S. Lamandre dated April 8, 1976, in the amount of $35,000.00;
(6) A check by Dominick S. Lamandre made payable to Josephine B. Orlando dated April 8,1976, in the amount of $10,000.00;
(7) A check by Jesse S. Guillot, attorney, made payable to the order of Josephine B. Orlando dated April 8, 1976 in the amount of $35,000.00 marked “For Lamandre # 5483”;
(8) A check by Jesse S. Guillot, attorney, made payable to the order of First Homestead & Savings Association, dated April 8, 1976 in the amount of $783.02, marked “For La-mandre # 5483”;
(9) An act of sale by First Homestead & Savings Association to Dominick S. Lamandre dated April 8, 1976; and
(10)A loan commitment and disclosure statement dated February 24, 1976.

These exhibits show the purchaser borrowed $35,000.00 from First Homestead, using the acquired property as security and paid the stated consideration to the seller. With this evidence, we cannot say the trial judge erred in concluding the transfer was a valid one and, hence, not a simulation, nor subject to collation.

COLLATION OF DONATION INTER VIVOS TO FRANK AND VINCENT ORLANDO

Charles Orlando and his two sons, Vincent and Frank, were in the construction business together. Initially the business was apparently a sole proprietorship owned by Charles Orlando, but with the passage of time, a dispute arose and the ownership became indefinite until 1963 when a partnership was formed. By Notarial act dated October 15, 1963, Charles and Josephine Orlando donated to Frank and Vincent Orlando an undivided one-third interest each in a tract of land. This tract was apparently the one from which the construction business was being conducted.

The setting up of the formal partnership agreement apparently did not cure the inter-family dispute and the business commenced having financial problems. Apparently, to provide a business operating form (corporation) and collateral satisfactory to the bank, on August 11, 1965, the donation of real estate made by act dated October 15, 1963 was revoked. On the following day, August 12, 1965, Charles and Josephine Orlando again donated to Frank and Vincent Orlando each an undivided one-third interest in the tract. The act of donation contained a declaration stating the value of the entire tract was $90,000.00 and the value of the interest donated was $60,-000.00. The act also contained a declaration that “The said Charles Orlando and Josephine Barbara Orlando, his wife, further declare that they have another child, a daughter, Mrs. Antoinette Orlando Santan-gelo, but the property herein donated by them is only a portion of the property owned by them”. Similar provisions had been contained in the October 1963 donation. It is unclear why the 1963 donation had to be revoked and a new one substituted in its place.

Following the second donation of the real estate, Charles, Frank and Vincent each sold their one-third interest in the real estate, together with their one-third interest each in the movable equipment and other assets to Charles Orlando and Sons, Inc. The act of sale showed valuations for assets as follows: (1) Real estate $20,923.24; (2) Construction equipment $81,343.21; (3) Autos and trucks $3,295.81; (4) Accounts receivable $6,094.77. The stated consideration for the sale was the corporation’s assuming and binding itself to pay $111,-657.19 in indebtedness, substantially all of which was represented by notes secured by mortgage on real estate or chattel mortgages.

The daughter, Antoinette, and her son, Lamandre, attacked the donations and asked that the property be collated. The trial judge held collation was not necessary. He assigned no reasons for his conclusion.

Inter vivos donations to children may be exempt from collation if intended to be given as an extra portion. The intent to give as an extra portion, however, must be expressed in clear and unequivocable terms. Milano v. Milano, 243 So.2d 876 (La.App. 1st Cir.1971); Successions of McLellan, 159 So.2d 351 (La.App. 4th Cir.1964). Thus, the question here becomes “Did the parents intend the donation of 1965 to be an extra portion?”. The parent donors declared and acknowledged the existence ■ of the daughter, Antoinette, and stated “the properties herein donated by them is only a portion of the properties owned by them Clearly the donors’ intention was to transfer to their sons who were engaged in business with their father an undivided interest in the land so that their ownership in the jointly owned business would be equalized.

Further, although there may be some question as to whether the sons did not in fact earn the interest (apparently subject to mortgages) which was transferred to them in the form of a donation, the declaration as to the daughter makes it clear, even if not earned, their intention was to give it to their sons as an extra portion. Therefore, we cannot say the trial judge erred in concluding the property does not have to be collated.

The heirs did not raise in the lower court or here the issue of reduction because of an impingement on the legitime of the daughter. The issue of reduction hinges on the valuation of the donation here when matched against the value of each estate. Hence, the trial judge did not nor do we pass on that issue at this time.

DATION EN PAIEMENT TO JOHN SZUCH

Although not in the record, from the testimony it appears equipment either belonging or alleged to belong to the corporation, Charles Orlando and Sons, Inc., was conveyed to John Szuch by a dation en paiement executed in October 1975. The trial judge concluded there was insufficient information for him to make a determination as to the validity or invalidity of the dation. After reviewing the record, we are in no different a position from the trial judge and, hence, cannot say he erred.

CONCLUSION

The judgment of the trial court is affirmed and the succession proceedings remanded to the trial court to proceed with as directed by his judgment. Each party to bear his own cost of the appeal.

AFFIRMED AND REMANDED.