author: TATE, Judge. PER CURIAM.

text:
    Lee D. HUGHES, Plaintiff-Appellee, v. LOUISIANA POWER AND LIGHT COMPANY, Defendant-Appellant.
    No. 4165.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    On Rehearing May 2, 1957.

      Monroe & Lemann, Andrew P. Carter, New Orleans, Reid & Reid, Hammond, for appellant.
    Iddo Pittman, Jr., Hammond, for appel-lee.
   TATE, Judge.

Defendant power company appeals from judgment awarding plaintiff Hughes $551.60 damages. Plaintiff-appellee answers the appeal requesting increase in the award.

At about 2:00 a. m., on April 16, 1954, lightning struck a transformer belonging to defendant company situated on or near Hughes’ property and serving only Hughes’ premises. At this time and for several hours thereafter it was raining heavily “and there was quite a bit of lightning flashes,” Tr-35.

Mrs. Hughes at once called defendant company. Its servicemen located the cause of the trouble as the burnt transformer at about 4:00 a. m., radioed for a new transformer, and installed the new transformer at about 5:30 a. m. At this time the lights went on in the house and the barn, although the milking machine did not then operate.

About 30 minutes later, the company servicemen were radioed to return to Mrs. Hughes to assist her in replacing a burned fuse; they returned, replaced the fuse, saw that the milking machine commenced running, and left. Mrs. Hughes hosed down the floor of the barn for about three or four minutes, left the barn to fix breakfast, and about twenty minutes later saw the barn on fire.

The company’s 2400 volt power line brought the electric current to the company’s transformer, where the current was transformed into 220 volt current for the barn machinery, and 110 volt current for the house and other lights. From this transformer some current went to the residence, some to the barn. The current to the barn passed through the main switch-box, in which there were two fuses. From one fuse, the current operated the barn lights. From the other, the current (passing through yet another fuse several feet distant solely for the milking machine) operated the milking-machine and perhaps other machinery.

As stated before, following installation of the new transformer, the Hughes’ electrical service was restored except for that leading from the fuse in the barn switch-box which led to the milking-machine. On their second visit, defendant’s servicemen pried loose with pliers this fuse, which was burned and charred, and inserted another fuse furnished by Mrs. Hughes, following which the milking-machine commenced operating. It was shortly after this that the fire was discovered.

Defendant vigorously assails the District Court’s finding that: “When the new fuse was placed in the box by the employees of the defendant company, it completed the circuit which allowed the flow of electricity into all of the wires in the barn and unquestionably precipitated the fire.” However, we believe this finding supported by the preponderance of the evidence, including the short time interval; the fact that no trouble in the wires manifested itself since their installation fifteen months prior to this incident; the testimony of defendant’s employees that a surge of lightning through the fuse-box could have damaged the electrical wiring system on the other side thereof; the uncontradicted testimony that after the fire every wire leading out of the fuse box (but not those leading in) were burned and were burned along the wall near the fuse box (Tr-88, defendant’s district manager), from the switch and up into the attic (Tr-82). We note that defendant’s electrical engineering expert with praiseworthy frankness testified, Tr-97:

“Q. Is it possible that, and even probable, that the lightning surge that hit the transformer could have deteriorated the wiring in the barn, creating a dangerous condition?
“A. It is possible, and under-
“Q. What about the probability?
“A. -under certain conditions, and in this instance particularly, it is a very good probability!’

We may add that although defendant urges that perhaps the hosing of the floor or other causes may have intervened to-cause the fire by wetting the wires, that the record is devoid of any evidence as to-such other causes. For instance, the wires were situated on the wall and ceiling, and only the floor was hosed, and Mrs. Hughes-testified that there was no possibility that water had gotten from the floor to the wall and ceiling.

In the absence of Louisiana jurisprudence directly in point, both parties cite to us the Annotation, “Liability of electric company to one other than employee, arising from its failure to shut off current,” 32 A.L.R.2d 244, at page 249, Section 9, “Defects in customer’s equipment”. Defendant’s brief concisely summarizes the rule of law applicable as follows:

“Generally, where an electric company furnishes current to wires or appliances maintained by a customer, and, because of a defect therein, the passing of current through the wires or appliances results in personal or property damage, the company is liable on the ground of neglect in not shutting off the current, or in continuing to furnish it, provided the company knows, or should know, of such defect. (See comment in 32 A.L.R.2d 282, Sec. 9, and the first cases cited thereunder). However, an electric company is not liable for damages arising from its failure to shut off current passing to a customer’s wires or equipment, where the company is without knowledge of any defect." (Italics those of briefwriter.)

Otherwise stated:

"The duty and responsibility of a mere generating company is generally held to be limited to making a proper connection and delivering the electric current to the purchaser’s wires and appliances in a manner which, so far as such delivery is concerned, protects life and property, and there is no duty of inspection to see that the purchaser’s wires and appliances are in a safe condition and kept so. Accordingly, where wiring or other electrical appliances on private premises are owned and controlled by the owner or occupant of such premises, a company which merely furnishes electricity is not responsible for the insulation •or condition of such wiring or appliances and is not liable for injuries caused by their defective condition, to such owner or occupant, * * *. [However,] “knowledge of the defective and dangerous condition of a customer’s appliances will charge even a mere generator and supplier of electricity with liability for consequences, where current is thereafter supplied to such defective and dangerous appliances, in which case it is the energizing of the line with knowledge of the conditions, and not the conditions themselves, which forms the basis of liability”, 29 C.J.S., Electricity, § 57, pp. 611-613. See also 18 Am.Jur.Verbo “Electricity”, Sections 46-53, 62, 85,100.

In an extremely able and eloquent brief, •counsel for defendant urges that to uphold •the judgment of the District Court herein in effect constitutes the defendant company the insurer of its customers, and assumes in it a duty, to inspect fully the wiring of its customers before resuming the flow of electricity into its customers’ premises after an interruption of the service. We are reminded that the action of defendant’s ■servicemen herein in helping this lady replace her burned fuse was an instance of •defendant’s humane and public-spirited attitude in the interest of good public relations in helping customers, particularly ■women and children, rather than requiring them to call their private electricians. Defendant urges that even had its servicemen inspected the wiring before resuming service, perhaps the perforations in the wires may have been so small as to escape notice, or so hard to find and so long to search for, that to impose this duty upon defendant power company would be unreasonable.

However, defendant overlooks that liability herein is imposed, if at all, not upon defendant’s failure to inspect the customer’s wiring, but upon its resuming electric service with actual or presumed knowledge that due to lightning damage plaintiff’s wiring was or might be in a dangerous condition. It is unnecessary for us to determine how great defendant’s duty was before it turned on the current, if charged with actual or presumptive knowledge of the potential danger to its customer’s premises through this damaged wiring — whether, for instance, a simple warning rather than an inspection would discharge this duty. For in this instance, without contradiction, the record indicates that defendant’s servicemen simply replaced the charred fuse, after having changed the burned transformer, without discussing and probably without thought of the potential hazard, in their haste to service other storm-caused troubles.

Thus, resolution of the legal issues herein simply requires our determination whether under the circumstances herein, defendant through its employees can be charged with knowledge of the hazardous condition of plaintiff’s wiring potentially created through the lightning damage to its transformer and the surge of great electric current past the fuse into the wires.

Defendant urges that the District Court erred in finding: “They knew the transformer had been blown out by being struck with lightning.” This finding is supported by the testimony of Mrs. Hughes that the servicemen so informed her, by the circumstances of the stormy night with many lightning flashes from which such servicemen could reasonably infer that such was the cause of the sudden interruption of electrical service, or held to knowledge that such was the probable cause thereof. (And, in fact, the testimony of defendant’s expert corroborates Mrs. Hughes’ testimony, and Article 2 of defendant’s answer admits that lightning struck the transformer.)

This knowledge, especially with their finding the charred fuse leading to the milking-machine, and their admitted familiarity as electrical men that lightning could cause such damage to the wiring, in our opinion and in the District Court’s holding charges defendant through its employees with knowledge “that when lightning caused the transformer and fuses to-blow it could have caused other damage as well”; and consequent to such actual or presumptive knowledge of the potentially hazardous damage to plaintiff’s wiring, defendant’s agents were under a duty not to simply turn on the current and go on their way without warning, waiting, inspection, or any precaution or notice whatsoever for or to their customer of what turned out to be an actually — rather than merely potentially — hazardous condition of the wiring.

Because of this specialized knowledge, we do not find persuasive defendant’s argument that upon replacing the charred fuse and seeing the milking machine commence operating, defendant could not reasonably anticipate the defective condition of the wiring.

Plaintiff answered the appeal requesting an increase in the award for loss of $112 milk production in his cows for about two weeks. The only proof of this loss was. plaintiff’s testimony that milk production fell after the fire, and as held by the court below correctly rejecting this item of damages, there is no testimony of the causal relationship of the fire to the alleged lesser milk production.

Defendant urges that plaintiff’s damages were not proven since principally by the testimony of a contractor’s employee that he had made an estimate of'the Cost of repairing the damages to 'the barn 'caused by'the fire,'which was in the sum of $487.60. Defendant did not object to this estimate, nor cross-examine this witness as to his qualifications or as to the correctness of the estimate. Despite defendant’s contrary assertion, estimates can properly prove damages recoverable, even though the repairs have not been made, Woodward-Wight & Co. v. Douglas Public Serv. Corp., La.App. 1 Cir., 75 So.2d 896, Parr v. Rogers, La.App., 71 So.2d 659, Christian v. Martin, La.App., 38 So.2d 181, Thomas v. Stewart, La.App. 1 Cir., 29 So.2d 604, Folse v. Flynn, La.App., 200 So. 160, Bianchi v. Mussachi, 1 La.App. 291. The first two cited cases illustrate instances where such' estimates were the basis of the award of damages even though the repairs were either not made because the car was traded in on another, or were only partially performed by the owner’s own labor and partially incompleted at time of trial.

The special damages for cost of wiring and loss of wages in the amount of $19 were proven (Tr-23), but the estimated cost of repairing the water heater ($45, Tr-22) must be disallowed because plaintiff himself admitted that the damage to the water heater wiring may have been caused by the prior surge of lightning through the wires (Tr-30), rather than through defendant’s negligence herein. This latter item of damages was inadvertently allowed by the District Court, and the judgment must be amended to exclude same.

For the above and foregoing reasons, the judgment of the District Court herein is amended to reduce the amount of the award to Five Hundred Six and 60/100 (506.60) Dollars, together with legal interest from date of judicial demand until paid; and as amended, the judgment is. .affirmed in all other respects.

Amended and affirmed.

On Rehearing

PER CURIAM.

A rehearing was granted because of appellant's' fdfC'eñil' argument that a power company could only be held liable under facts similar to those herein when charged with actual knowledge of the defective condition of the customer’s wiring which made the company’s resumption of service dangerous.

We have carefully reviewed this record and the applicable law and we believe our original holding is correct under the District Court’s and our own appreciation of the facts herein, stated in our original •opinion.

We think able counsel for defendant misapprehends the effect of our decision when he argues that we held the defendant electric company liable for the subsequent fire on plaintiff’s premises just because the defendant company resumed electric service after lightning had struck the transformer. It was not our intention to hold that liability attaches merely because of such circumstance, nor that the electric company was liable simply because its employees had changed the burned fuse and inserted a new fuse as an accommodation to its customer (following which the current surging through the new fuse into the defective wiring caused the fire which destroyed the premises in question.)

Had the replaced fuse been simply burned out, such as might have been compatible with a normal cause such as an overload on the line, then we do not think that the electric company’s employees were under any duty to anticipate equipment or wiring .■so defective, that their resumption of electrical service by replacing the fuse might cause damage to plaintiff’s property. But under all the circumstances of this case, the fuse replaced by defendant’s employees was burned and charred to such an extent that defendant’s employees (with their specialized knowledge) were put on notice of the good probability that the wiring had been damaged beyond the fuse by a surge •of lightning, and that because of this it was dangerous to resume electrical service; and therefore, as a consequence of this presumed knowledge, the replacing of the fuse permitting the resumption of electrical service to plaintiff’s milking machine circuit without taking some safeguarding precaution or warning plaintiff so as to enable him to take same, constituted actionable negligence imputed to their employer, the defendant herein; as a result of which the District Court properly cast defendant for damages sustained through these negligent acts and omissions:

If the power company knows or should know of defects in a private wiring system or appliances which will cause damage, it is negligence on the power company’s part to energize the system, although ordinarily in the absence of such actual or constructive knowledge the power company’s duty terminates at its meter. (See authorities cited in our original opinion.)

For the above and foregoing reasons, our original opinion and decree herein are reinstated, affirming the judgment below.

Affirmed on rehearing.


source: Caselaw Access Project

author: HARDY, Judge. PER CURIAM.

license: Public Domain

text:
    L. Whatley HOLMES, Plaintiff-Appellee, v. TRADERS AND GENERAL INSURANCE COMPANY, Defendant-Appellant.
    No. 8657.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Rehearing Denied April 26, 1957.
    Writ of Certiorari Denied May 10, 1957.

      Jackson,' Smith, Mayer & Kennedy, Shreveport, for appellant.
    Marion K. Smith, Shreveport, for appel-lee.
   HARDY, Judge.

This is a compensation claim in which plaintiff seeks recovery of the statutory allowance provided for permanent impairment of the usefulness of the physical function of the nose. From judgment in favor of plaintiff awarding maximum weekly compensation of $30 for the statutory period of 100 weeks, defendant has appealed.

There is no dispute as to the factual circumstances. On April 13, 19SS, while engaged in duties of his employment by defendant’s insured as an oil well pumper,, plaintiff was struck on the nose by a Still-son wrench weighing approximately 20’ pounds, which fell from a height of twelve to fourteen feet. Plaintiff sustained a serious injury to his nose which subsequently necessitated an operation. Following recovery from the immediate injury and operative repair thereof plaintiff complains he has completely lost his sense of smell, and upon this basis he predicated his claim for compensation as for the loss of the usefulness, of a physical function.

The defense rests upon the contention-that plaintiff’s loss of the sense of smell, if, indeed, he has suffered such a loss, is attributable to a sinus affection which has no-connection with the accidental injury.

We think it is conclusively established by the almost uncontradicted testimony in the-record that prior to the accidental injury plaintiff possessed a keen sense of smell and that he had'never suffered from any nasal1 disturbances in the nature of sinus or allergic infections with the exception of ordinary common colds. The medical testimony on behalf of plaintiff was tendered by an examination of Dr. W. H. Browning, a. specialist in the treatment of allergy diseases, and the deposition of Dr. Ralph H. Riggs, an eye, ear, nose and throat specialist, who examined and treated plaintiff immediately following the accident. Defendant introduced the deposition of Dr. Frank: L. Bryant, a specialist in otolaryngology,, who performed the nasal septum reconstruction operation upon plaintiff, and Dr. B. P. Smith, Jr., who made an examination of plaintiff on April 18, 1956, approximately a year following the accident.

In addition to his examination of April 18, 1956, Dr. Smith testified that he had treated plaintiff in July, 1954 for an infection of the floor of the mouth. Counsel for defendant makes much of the fact that the history of plaintiff's symptoms and complaints, as taken by the doctor’s secretary, indicated that the patient declared he had sinus trouble and a post-nasal discharge. This was denied by plaintiff. In any event, there is little, if any, importance to be attached to this point in view of Dr. Smith’s unequivocal testimony that he found no similarity in Mr. Holmes’ condition as of July, 1954 and his condition of April, 1956. The witness denied any association or relationship between the mouth infection from which plaintiff was suffering in 1954 and any nature of sinus trouble.

In our opinion it is unnecessary to enter into a detailed discussion of the technical medical testimony of the expert witnesses. We have had no difficulty in reaching the conclusion that the testimony overwhelmingly preponderates in favor of plaintiff.

Plaintiff’s claim is governed by the specific provisions of LSA-R.S. 23:1221(4) (p) which reads as follows:

“In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and as in proportion to the compensation here-inabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks.”

Having found as a fact that plaintiff has suffered permanent impairment of the usefulness of a physical function, to-wit, the sense of smell, we think the maximum award of $30 per week for a period of one hundred weeks was eminently justified.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

On Application for Rehearing

PER CURIAM.

In application for rehearing it is urged that credit should be allowed for compensation paid during the period of the plaintiff’s disability. Since counsel for plaintiff concedes this point, our original decree is amended to the extent of allowing a credit of $124.50 in favor of defendant-appellant.

Rehearing is denied.


author: GLADNEY, Judge.

text:
    INTERIM TELEVISION CORPORATION, Plaintiff-Appellant, v. L. K. CAPPEL and Interstate Electric Company of New Orleans, Louisiana, d/b/a Intrasouth Distributing, Defendants-Appellees.
    No. 8640.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Rehearing Denied April 26, 1957.
    Writ of Certiorari Denied May 10, 1957.

      Steven N. Cowel, Shreveport, for appellant.
    John Paul Woodley, Shreveport, for L. .K. Cappel.
    Freyer & Freyer, for Interstate Elec. Co-, of New Orleans, Shreveport, for appellee..
   GLADNEY, Judge.

The plaintiff, Interim Television Corporation, instituted this suit in Caddo Parish to recover money allegedly due by L. K. Cappel and Interstate Electric Company of New Orleans under specific terms of a. written contract which contemplated the-exhibition of certain telecasts as advertising media. The agreement, which was-signed by Cappel, purportedly acting in-behalf of Interstate, scheduled twenty-six. telecasts at a stipulated rate of $147.50’ each. The contract was terminated after-fifteen of the television programs were exhibited, at which time Interstate denied' liability and advised plaintiff that Cappel' had exceeded his authority in the execution-of the contract. Exceptions were filed by each of the defendants and sustained by the court a quo, from which judgment plaintiff has appealed.

Appellant assigns error to the judgment: first, in sustaining an exception of no cause or right of action filed by Cappel; and second, in maintaining an exception filed by Interstate to the jurisdiction of the First Judicial District Court of Caddo Parish.

• The exception filed on behalf of Cappel relates only to whether vel non a cause of action has been stated by plaintiff. The issue must be resolved solely upon the well pleaded facts declared in plaintiff’s pleadings, wherein Cappel is sought to be held responsible under the contract with his employer, Interstate Electric Company of New Orleans. Therefore, in this instance if such allegations of fact set forth a cause or right of action as to any part of plaintiff’s demand, the exception could not be maintained. Smith v. Kennon, 1937, 188 La. 101, 175 So. 763; Adkins’ Heirs v. Crawford, Jenkins & Booth, Inc., 1942, 200 La. 561, 8 So.2d 539; Ingersoll Corporation v. Rogers, 1950, 217 La. 79, 46 So. 2d 45; C. W. Greeson Company v. Harnischfeger Corporation, 1951, 219 La. 1006, 54 So.2d 528; Schackai v. Messa, 1953, 223 La. 626, 66 So.2d 573. In Rapides Grocery Company v. Vann, 1956, 230 La. 829, 89 So.2d 359, it was pointed out that the tendency of modern practice is to yield as little as possible to technicalities and to be more liberal in upholding substantive rights.

The petition sets forth: that about July 1, 1954, Charles E. Sullivan, manager of the Intrasouth Distributing (identified therein as a trade name used by Interstate for its Shreveport branch) commenced negotiations with a representative of plaintiff for the purpose of determining upon a contract for television advertising of certain products sold by the defendant; that before a definite agreement was reached Sullivan was moved to New Orleans and was replaced by Marshall S. Pemberton as manager of the Shreveport office; and that Pemberton was instructed by Sullivan to continue the negotiations. It is further alleged that L. K. Cappel, who occupied the position of territory manager, and who was experienced in advertising, was designated by Pemberton to peruse the contemplated contract and execute the contract if satisfactory. Paragraph numbered 12 of the petition alleges:

“That based upon this information and assurance from Marshall S. Pem-berton, manager of Intrasouth Distributing, and based upon the delegated authority to L. K. Cappel, territory manager for Intrasouth Distributing, and by having exercised reasonable precautions in inquiring about and verifying authority to enter into said contract, and being in good faith, your petitioner accepted the signature of L. K. Cap-pel to be binding upon Intrasouth Distributing.”

Plaintiff amended its original petition by adding an additional paragraph thereto, designated as 12(A), reading as follows:

“That based upon this information and belief, and on such information and belief, that L. K. Cappel had authority to act in behalf of principal, the signature of L. K. Cappel was deemed as creating a contract between Intrasouth Distributing and your petitioner.”

Thereafter a second supplemental and amended petition was filed to the end that plaintiff’s petition would include the following paragraph:

“That, in the alternative, and solely in the alternative, petitioner avers solely upon the information and belief founded upon correspondence with Interstate Electric, that said L. K. Cappel' had no authority to sign the contract herein on its behalf, nor was he authorized to bind them in any way verbally or in writing, and that, should the Court hold that L. K. Cappel was not vested with proper mandate authority as alternatively alleged in the article, said L. K. Cappel is therefore personally liable to petitioner for damages under the contract in the amount of $1,650.00.”

The exception of no cause of action is predicated upon four grounds: that the petition alleges and discloses the contract was executed by Cappel solely as the agent of the defendant and plaintiff had no intention of contracting with Cappel personally or individually; that the petition fails to allege any personal guarantee by L. K. Cappel with respect to the contract; that the petition clearly indicates plaintiff was fully informed of the authority of Cappel to act as agent of the defendant; and, finally, that the petition does not show that exceptor exceeded his authority in executing the contract that is sued upon.

The legal issue thus presented relating to the liability of an attorney for his acts arises under Title IS of the LSA-Civil Code of Louisiana, dealing with the subject of mandate. The following Codal articles deserve our attention:

No. 3010:
“The attorney can not go beyond the limits of his procuration; whatever he does exceeding his power is null and void with regard to the principal, unless ratified by the latter, and the attorney is alone bound by it in his individual capacity.”
=* * * * * *
No. 3012:
“The mandatary, who has communicated his authority to a person with whom he contracts in that capacity, is not answerable to the latter for anything done beyond it, unless he has •entered into a personal guarantee.”
No. 3013:
“The mandatary is responsible to those with whom he contracts, only when he has bound himself personally, •or when he has exceeded his authority without having exhibited his powers.”

Plaintiff’s petition nowhere alleges that Cappel personally bound himself for payment of the obligation. The contract attached as part of the original petition plainly discloses it was entered into between “Intrasouth Distributing” called “agency” and “accepted for Agency by L. K. Cappel.” Although the petition, in the alternative, avers Cappel had no authority to act, that bare allegation does not state legal liability or meet the requirement of LSA-Civil Code Article 3013, for it does not charge the attorney exceeded his authority “without having exhibited his powers.” Further we note that it is alleged plaintiff investigated the powers of Cappel of its own accord and determined Cappel was vested with authority, and consequently acted upon such information.

Therefore, by reason of the allegations of the petition it appears that the Codal articles above quoted are conclusive of the issue and it is our holding that there is no error in the judgment sustaining the exception of no cause or right of action.

In seeking a reversal of that portion of the judgment which sustained a plea to the jurisdiction of the trial court, plaintiff principally contends that its action falls within the purview of Article 165, subd. 9, of the Code of Practice, which article provides for certain exceptions to the rule established in Article 162 of the Code of Practice. The provision recites that in civil matters suit should be brought at the domicile of the defendant.

Another statutory ground relied upon by appellant for showing the venue of the suit lies with the district court in Caddo Parish is LSA — R.S. 13:3234, which statute expressly permits in certain instances, suit to be filed in the parish where the agent for service of process has his residence, or in some other parish where the corporation had and maintained an office. Examination of the provision, however, discloses this section of the LSA-Revised Statutes of 1950 was based on Acts 1918, No. 179, Par. 1 (6d) and is limited to the subject of venue of suits against foreign corporations only. Perkins v. Brothers of Christian Schools of Lafayette, Inc., La. App., 1954, 71 So.2d 400. See also LSA-R.S. 12:37.

In the instant case Interstate Electric Company of New Orleans, Louisiana, defendant herein, maintains its principal place of business and is domiciled in the City of New Orleans. The transaction giving rise to the instant suit, however, arose more or less entirely in the Parish of Caddo, and involved dealings between the branch of the defendant company maintained in Shreveport and the plaintiff, whose business was operated at Shreveport. Tendered in support of the plea to the jurisdiction is a certificate by the Secretary of State, confirming the averment of the plea as to domicile of the defendant company and certifying that none of its designated agents for service or process reside within Caddo Parish.

It is well to note at this time that by an amended petition plaintiff has incorporated into its petition an allegation to the effect that the defendant has breached the contract entered into by L. K. Cappel, its former territory manager, and as a result of such breach, damages have been incurred by the plaintiff.

Code of Practice, Article 165, subd. 9, provides:

“Trespass. In all cases where any person, firm or domestic or foreign corporation shall commit trespass, or do anything for which an action for damages lies or where any domestic or foreign corporation shall fail to do anything for which an action for damages lies, such person, firm or corporation may be sued in the parish where such damage is done or trespass committed, or at the domicil of such a person, firm or corporation.”

This codal provision, prior to Act 108 of 1908, read:

“In all cases where any corporation shall commit trespass, or do anything for which an action for damages lies, it shall be liable to be sued in the parish where such damage is done, or trespass committed.”

Subsequently, by Act 108 of 1908, the provision was amended to embrace cases where any corporation should fail to do anything for which an action for damages lay. By Act 130 of 1926 the statute was made applicable to persons and firms who committed a trespass or acts of commission for which an action for damage lay. In 1940 the Legislature clarified the word “corporation” by inserting therein the words: “domestic” or “foreign” so the exception would have application to both domestic and foreign corporations. As so amended the provisions of Code of Practice, Article 165, subd. 9, remain to this date.

The scope of Code of Practice Article 165, subd. 9, was held to extend with force to actions for damages arising from a breach of contract in City of Lafayette v. Wells Fargo & Company Express, 1911, 129 La. 323, 56 So. 257; O’Brien v. Delta Air Corporation, 1938, 188 La. 911, 178 So. 489, and in Du Bell v. Union Central Life Insurance Company, 1947, 211 La. 167, 29 So.2d 709. In Weber v. H. G. Hill Stores, Inc., 1945, 207 La. 500, 21 So.2d 510 and in Perkins v. Brothers of Christian Schools of Lafayette, Inc. it was held the exception provided by Code of Practice, Article 165, subd. 9, was without application and venue was at the domicile of the corporation sued. In the City of Lafayette v. Wells Fargo & Company Express and in O’Brien v. Delta Air Corporation the causes of action sued upon arose from alleged negligent acts in violation of an obligation imposed by the contract, and gave rise to a claim in damages, the amount of which required judicial determination. Du Bell v. Union Central Life Insurance Company was occasioned by the failure of the defendant to deliver certain property to its buyer who claimed damages arising as an incident to the non-performance of the defendant’s obligation. In Weber v. H. G. Hill Stores, Inc. and Perkins v. Brothers of Christian Schools of Lafayette, Inc. the demands of each of the plaintiffs were confined to stipulated sums (referred to as rent) in the alleged contracts and were for the nonpayment of a sum of money as determined by the contract itself.

The aforementioned jurisprudence points up the question: Does Code of Practice Article 165, subd. 9, apply to actions against a corporation for the non-payment of-money stipulated in a contract? The Code provision, insofar as corporations are concerned, permits suit in the parish where the damage is done, or trespass committed, or at defendant’s domicile where (1) the corporation shall commit trespass, (2) or do anything for which an action for damages lies, or (3) shall fail to do anything for which an action for damage lies. It seems clear that the obligations so embraced, other than not to commit trespass, are those which give rise to damages from breach of an obligation to do or not to do. The question then arises: Does the Statutory provision apply to actions where the duty imposed by the contract is simply the payment of a sum of money as prescribed therein ?

Chapter 3, entitled “Of the Effect of Obligations” of the LSA-Civil Code of Louisiana divides obligations into the obligations of giving and the obligations to do or not to do. It is thus provided:

Art. 1905:

“The term to give, in this division of obligations, is applied only to corporeal objects, that may be actually delivered from one to another; and it includes the payment of money as well as the delivery of any other article. A covenant, respecting an incorporeal right comes under the definition of contracts to do or not to do, because some act, besides that of delivery, is necessary for the transfer of such rights.”

Art. 1926:

“On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.”

Art. 1903:

“The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.”

Art. 1930:

“The obligations of contract (contracts) extending to whatsoever is incident to such contracts, the party who violates them, is liable as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.”

Art. 1934:

“Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions * *

Art. 1935:

“The damages due for delay in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more.”

The foregoing principles seem to us to create a division between the obligation of giving (which includes the payment of money and concerns corporeal rights) and the obligation to do or not to do (which deals entirely with incorporeal rights). In the case of obligations to do or not to do, the obligation extends under LSA-Civil Code, Article 1903 to everything incidental to the particular contract, or necessary to carry it into effect. Claims for damages for a breach of contract thus arise from the rights incidental to the particular contract and are incorporeal. The wording of Code of Practice, Article 165, subd. 9, therefore, has reference to actions for damage which flow from the invasion of incorporeal rights. We are of the opinion the Code of Practice, Article 165, subd. 9, is limited in its application to the enforcement of obligations to do or not to do and does not extend to an obligation to pay money under specific terms of a contract.

The conclusion reached impels us to find that demands of the plaintiff against Interstate Electric Company of New Orleans is for the enforcement of an obligation to pay money and does not fall within the obligations to do or not to do, which we think are contemplated in Code of Practice, Article 165, subd. 9. The exception to the venue was properly maintained.

The judgment from which appealed is, therefore, affirmed at appellant’s cost.


text:
    J. I. WINN, Plaintiff-Appellee, v. Willie CALHOUN et al., Defendants-Appellants.
    No. 8652.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Rehearing Denied April 26, 1957.

      Watson & Williams, Natchitoches, for appellant.
    Gahagan & Gahagan, Natchitoches, for appellees.
   GLADNEY, Judge.

This petitory action was instituted on September 10, 1954, by J. I. Winn, for the purpose of being recognized as the owner and restored to the full and undisputed possession of the NEJ4 of SEJ4 of Section 36, Township 10 North, Range 10 West, in Natchitoches Parish, Louisiana. From an adverse judgment the defendants, Willie Calhoun, the heirs of Matthew Calhoun, and R. B. Williams, have appealed, assigning error to the court a quo in failing to sustain on their behalf a plea of prescription of thirty years acquirendi causa. Other defenses urged in the trial court have been abandoned and are no longer urged.

Plaintiff tendered in support of his title documentary evidence disclosing that the subject property was acquired by D. H. Veal from Willie Calhoun and Matthew Calhoun by deed dated April 28, 1922; that J. I. Winn acquired the property from D. H. Veal by deed dated February 11, 1924; that Willie Calhoun and Matthew Calhoun acquired the property from Levy Calhoun on September 27, 1921, and that said property was severed from the United States-Government and placed in the name of Levy Calhoun through patent dated December 12, 1898. Plaintiff averred that at the time of trial the defendants were in the actual physical possession of said property without title and refused to deliver the property to the plaintiff.

The plea of 30 years prescription alleges actual corporeal possession of the-property in question since September 27, 1921, which was the date of acquisition by Willie Calhoun and Matthew Calhoun from, their father, Levy Calhoun. It is averred that such possession was adverse and consisted of “plowing the land, building and construction of homes, barns and outhouses,, using of the area for the growing of crops, cultivation, pasturing of livestock, cutting' of timber” and in general, all the things, normally showing open and notorious physical possession of the properties.

In order to establish the plea of thirty years prescription, it is essential for the proponents of the plea to show that their possession was of the nature and kind required by the statutory provisions-of the Revised Civil Code. Such ownership of immovables may be prescribed for in thirty years without any deed of title, or possession in good faith. Such possession, however, must be continuous and uninterrupted, public and unequivocal, and under the title of owner. Articles 3499 and 3500 LSA-C.C. Article 3436 states that it is essential to the possession giving rise to the thirty year prescription that there be the intention of possessing as owner, and that such possession be corporeal. LSA-Civil Code Article 3437 provides that occupancy of only a part of the land may be sufficient to support a prescription as to the whole, provided it be with the intention of possessing all that is included within the boundaries; and LSA-Civil Code Article 3438 declares it is permissive that the possession acquired by others may inure "to the benefit of him for whom they received it.

In addition to the testimony relating to acts of physical possession,' defendants tendered evidence to show that taxes on said property for the years 1922 to 1936 were paid in the name of Willie and Matthew Calhoun; that a homestead exemption was obtained by Willie Calhoun; that a tax certificate for the extension and payment of taxes was executed by Willie and Matthew Calhoun for a ten year period commencing with the year 1930; and that said property was sold to the State of Louisiana in 1933 for the 1931 tax extension ■installment and was redeemed in the names ■of Willie and Matthew Calhoun. This evidence is supplementary to the testimony tendered for the purpose of establishing continued physical possession of the property in support of the plea of prescription of thirty years.

In order to properly understand the •origin of this controversy and the relationship which existed between the parties, we give the following narration of events. Prior to 1921 Levy Calhoun owned two adjoining forty-acre tracts of land, including the subject property which he sold in 1921 to his two sons, Willie and Matthew Calhoun. Prior to this time Levy and his two sons had cleared a portion of both forties and having fenced it in, cultivated it. In the Town of Marthaville, Louisiana, near by, D. H. Veal conducted a store out ■of which he furnished supplies to the Calhoun family and had done so for years. On April 28, 1922, Willie Calhoun and Matthew Calhoun executed a notarial act of sale wherein they conveyed the property in dispute with full warranty of title to D. H. Veal for the sum of $200. Levy Calhoun continued to farm a portion of the property for a number of years thereafter. He died in 1944 and Matthew died in 1933. Some time during 1928 or 1929, Willie Calhoun erected a home and other improvements on the subject forty acres and lived on said property until 1945, at which time he dismantled the house and moved into a house which he erected several miles away.

When Willie Calhoun married in 1923, he and his wife did not live on the property, although Willie apparently had some interest in farming with his father on the home place which included some cultivation of acreage on the forty claimed herein. The record, according to his own testimony, was that during 1924 through 1928 his actual farming was away from the property in question and it was only after 1928 that he moved back to the property. The record seems to indicate clearly that during a number of years after 1921 Levy Calhoun did most of the farming on the forty-acre tract as he had prior to the time he sold it to Willie and Matthew Calhoun. Willie testified that Levy Calhoun paid the taxes on the property for several years.

In 1937 the property was assessed to J. I. Winn and subsequent to said date, it has not been assessed otherwise. Since 1945, the fences have been allowed to deteriorate and only vestiges of former occupation and possession appear. The property, with the exception of about twenty acres, is covered mostly with mixed soft and hardwood timber. Willie Calhoun has on several occasions subsequent to 1945 attempted to remove timber and on each of these occasions was reprimanded by Winn for doing so with demand for payment of such timber as was taken by reason of the asserted trespass. Evidence was also adduced that on two occasions in 1945 Willie Calhoun promised to pay Winn for the timbei taken. In 1952 Winn discovered that Willie Calhoun was cutting timber on the property and threatened him with arrest, and did cause him to be arrested for trespass. This case was never brought to trial, but undoubtedly the continued acts of Willie Calhoun in attempting to remove the timber from the property resulted in the institution of this suit. There is no evidence which indicates in any' way that the possession of Levy Calhoun or of his two children, Willie and Matthew, prior to 1928, was hostile to the ownerships of Veal and Winn. Willie Calhoun testified that he first told Mr. Winn of his adverse claim of ownership about the year 1937 when Winn caused the assessment to be changed.

Winn testified he did not know Willie Calhoun claimed ownership of said property until 19S2. At that time Winn had Willie Calhoun arrested for cutting timber on the property. He testified that the occupancy of the Calhoun family of the forty acres was with his permission. He explained that Levy Calhoun and his family had always been good customers at his mercantile establishment; that Levy Calhoun had a large family with his sole income derived from tilling the soil; and that Levy traded with him and paid his debts only from the products of the farm. He further testified that he frequently visited the property and did not know that the property was not assessed to him and that he was not paying the taxes on the property until 1937, when he had the assessment records corrected accordingly, and subsequent to that date the property in dispute has been repeatedly assessed to him and taxes paid by him. The record does not indicate any explanation by Winn as to why he permitted Willie Calhoun to build a home on the property in 1928 and live there continuously until 1945.

In order for the thirty years of possession to elapse prior to its interruption in 1952 when Calhoun was arrested for trespass, it is incumbent on defendants to prescribe against the ownership of Veal. The issue raises the question as to when and under what conditions can a vendor prescribe against his vendee? Apropos to the solution of this issue are the following articles of the LSA-Civil Code.

Art. 3488.

“As to the fact itself of possession, a person is presumed to have possessed as master and owner, unless it appears that the possession began in the name of and for anothef.

Art. 3489.

“When a person’s possession commenced for another, it is supposed to continue always under the. same title, unless there be proof to the contrary.”

Art. 3490.

“The circumstance of having been in possession by the permission or through the indulgence of another person, gives neither legal possession nor the right of prescribing.
“Thus, those who possess precariously, that is, by having prayed the master to let them have the possession, do not deprive him thereof, but, possessing by his consent, they possess for him.”

Art. 3556.

“25. Precarious. — That possession is called precarious, which one enjoys by the leave of another, and during his pleasure. * * * ”

Art. 3441.

“Those who possess, not for themselves, but in the name of another, as farmers, depositaries and others who acknowledge an owner, can not acquire the legal possession, because at the commencement of their possession, they had not the intention of possession for themselves but for another.”

Art. 3510.

“Those who possess for others and not in their own name, can not prescribe, whatever may be the time of their possession.
“Thus, farmers, tenants, depositaries, usufructuaries and all those generally who hold by a precarious tenure and in the name of the owner, can not prescribe on the thing thus held.”

Art. 3512.

“Notwithstanding what is said in the two preceding articles, precarious possessors and their heirs may prescribe when the cause of their possession is changed by the act of a third person; as if a farmer, for example, acquires from another the estate which he rented. For if he refuse afterwards to pay the rent, if he declare to the lessor that he will no longer hold the estate under him, but that he chooses to enjoy it as his own, this will be a change of possession by an external act, which shall suffice to give a beginning to the prescription.”

Art. 3433.

“One may possess a thing not only by one’s self, but also by other persons.
“Thus the proprietor of a house or other tenement possesses by his tenant, or by his farmer; the minor, by his tutor; and, in general, every proprietor, by the persons who hold the thing in his name.”

Art. 2480.

“In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.”

In Arnold v. Sun Oil Co., 1949, 218 La. 50, 48 So.2d 369, the Supreme Court discussed its opinions in Roe v. Bundy’s Heirs, 1893, 45 La.Ann. 398, 12 So. 759, 763 and Succession of Zebriska, 1907, 119 La. 1076, 44 So. 893, as being the two leading cases in Louisiana which considered'the questions of the nature of possession and the effect thereof on a vendor who remained in possession of the property of his vendee. In the Zebriska case Judge Provosty stated that his viewpoint, though not that of the court, was that the decided weight of civil law authority is that the unexplained continued possession of the vendor is presumed to be for himself and, he added, that under our Code such a thing as a notarial sale of immovable property without delivery is an impossibility. After examining thoroughly the civil commentaries pregnant to the issue, the court in Arnold v. Sun Oil Co. had this to say [218 La. 50, 48 So.2d 387]:

“The individual view expressed by Justice Provosty was, of course, as stated by him, not the opinion of the court, and our review of the writings of the French commentators convinces us that the opinion of the majority of these commentators does not support his view. We hold to the view that, when the continued possession of the vendor is unexplained, as to third persons there is a presumption of simulation, [LSA] Civil Code, Article 2480, and as between the parties the unexplained continued possession of the vendor is presumed to be for the benefit of the vendee. [LSA] Civil Code, Articles 3433 and 3489. But, where a vendor is not in actual possession at the time of the sale, or where he is in possession at that time, and surrenders possession to his ven-dee, and where, in either of such cases, the vendor later takes or re-takes, as the case may be, possession of the thing sold, the unexplained possession of the vendor thereafter, in either case, is presumed to be for himself, as owner, and not for the benefit of his vendee. However, all of these presumptions may be rebutted. [LSA] Civil Code, Articles 2480, 3512, and 3488. In both Roe v. Bundy and Succession of Zebriska, both cited supra, it is conceded that a vendor may possess adversely to his vendee and reacquire the property he has sold by the prescription of 30 years. In Roe v. Bundy, supra, we said:
“ ‘Coming to the consideration of the question as to whether the vendor of property is absolutely precluded from acquiring title to the property conveyed by him to his vendee, adversely to that vendee, by the prescription of 30 years, we find that the weight of authority, both under the civil and common law, is decidedly in favor of the proposition that he is not estopped from doing so, and that the differences among commentators and courts on this subject have been principally as to the time, circumstances, and conditions under which such acquisition can be made and claimed, and under and by what evidence it can be proven. The common-law decisions will be found in the American and English Encyclopedia of Law under the title of “Adverse Possession.”
♦ ‡**********
“ ‘Now, assuming that Greene, before he had performed that duty, could place himself in a position of hostility to his vendee (vendor), and could through some positive act of his own, which the French commentators speak of as an “acte de contradiction,” change the character of his possession from that of its origin, and be entitled to alter it by an “interversión of possession,” we would certainly require of him for the purpose of acquiring the property by the 30-years prescription, that he should clearly establish that knowledge of this change of position had been brought home by him to his vendee. This proof, as we have said, has not been made.’ ”

The foregoing decision imposes upon a vendor, who remains in possession of the property which he has sold, and who, therefore, is a precarious possessor, the duty to make known to the vendee his adverse claim of ownership. Thus, in John T. Moore Planting Co. v. Morgan’s Louisiana & T. R. & S. S. Co., 1910, 126 La. 840, 53 So. 22, 35, the court said:

“Such excerpts as these — all in the same sense — could be multiplied almost indefinitely. From them it is very plain that for a precarious possessor, such as a usufructuary or the holder of a servitude, to change the cause of his possession and inaugurate a new possession, it does not suffice for him to acquire and record a new title; but that he must, in addition, indicate by some outward acts of possession his intention to hold no longer under the old title but under the new; and that these acts must be of an unusually pronounced character. He must so conduct himself as to let the owner know that a new order of things has begun. In the same way that prescription liberandi causa is founded upon a presumption of payment, prescription acquirendi causa is founded upon a presumption of acquiescence on the part of the owner in the claim of title set up by the possessor; and the owner of property cannot be presumed to have acquiesced in a claim of ownership of which he is in total ignorance. He cannot be presumed to have known that the possession which theretofore had been precarious has suddenly become animo domini, when there has been absolutely nothing in the manner of the possession to indicate the change. The registry of the new title is not notice to him. It is as to him res inter alios acta. He has no concern with it. A man who is in the quiet and peaceable possession and enjoyment of his property does not have to be inspecting the public records every day, or every month or every year, or, for the matter of that every 10 or 30 years, to find out if somebody has not been recording title to his property. Until his possession is disturbed he does not have to concern himself with any claims that other people may be recording against his property. Registry is for the benefit of those who wish to contract with reference to property — to inform them of the condition of the title to the property with reference to which they are about to contract, and was never designed to operate as a means of disturbing or ousting the possession of the owner of the property * * *

Willie Calhoun testified he first informed Winn of his intention to possess adversely and as owner in 1937, and the evidence, in our opinion, does not establish that prior to 1928 the character of Calhoun’s possession changed from that of occupancy by permission to that of an adverse owner. The above date is selected as being the year when Willie Calhoun began the construction of his home which he lived in until 1945. No satisfactory explanation was made by Winn as to why he permitted Willie Calhoun to build his home on the disputed property. From this fact it may be presumed such possession was so adverse to the right of the true owner that he will be put on constructive notice that a non-owner is claiming his land. But even if this be conceded, arguendo, the proponents of the plea of prescription have not shown the requisite thirty years of possession, and therefore, the plea of prescription was properly rejected.

By way of defense it was urged that the deed from Willie and Matthew Calhoun to D. H. Veal was intended as a mortgage and not as a deed. The pleadings failed to disclose any specific allegations of fraud and upon objection duly made the defendants were not permitted to offer parol testimony to show that the property was mortgaged rather than sold by Willie and Matthew Calhoun. The ruling was correct. Art. 2276, LSA-C.C. As pointed out heretofore, the defense, as presented, is predicated solely upon the thirty year prescription acquirendi causa.

Prior to the rendition of judgment from which this appeal was taken, J. I. Winn died and his heirs were recognized and placed in possession of his estate, and subsequently were appropriately substituted as parties plaintiff herein.

It follows from our findings that the judgment from which appealed should be affirmed. It is therefore ordered, adjudged and decreed that there be judgment herein in favor of the plaintiffs, A. E. Winn. T.W. Winn, and Mrs. Alma Winn Sibley, and against the defendants, Willie Calhoun, Johnny Calhoun, Olsie Calhoun, Elsie Calhoun, Ola V. Calhoun Wilson, Reval Calhoun Jackson and Richard B. Williams, decreeing said plaintiffs to be the true and lawful owners of the following described property, to-wit: NE14 of SEJ4 in Section 36, Township 10 North, Range 10 West, Natchitoches Parish, Louisiana.

It is further ordered, adjudged and decreed that defendants deliver possession of said property to plaintiffs and that they pay all cost of this suit.


author: AYRES, Judge.

text:
    Mrs. Allie Taylor STOVALL, Plaintiff-Appellant, v. Jack C. SOLOMON et al., Defendant-Appellee.
    No. 8655.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.

      Booth, Lockard, Jack & Pleasant, Shreveport, for appellant.
    Lonard K. Wells, Robert G. Pugh, Shreveport, for appellees.
   AYRES, Judge.

By this action plaintiff, as the surviving widow of Fred J. Stovall, deceased, seeks to recover for herself and four minor children compensation on account of Sto-vall’s accidental death by electrocution on April 7, 1956, while operating a drilling rig drilling a water well in the City of Shreveport. Impleaded as defendants are Kay and Harrison, a partnership, and its individual partners, the developers of the property, and Jack C. Solomon, the deceased’s alleged employer. There was judgment against the first named defendants, from which no appeal has been taken, and, in favor of the defendant, Solomon, from which plaintiff prosecutes this appeal.

The rejection of plaintiff’s claim as against defendant Solomon is predicated upon the conclusion reached by the trial court that the deceased was not an employee of this defendant but that the deceased and Solomon were either partners in the water well drilling business or were engaged in a joint venture. It was also concluded that recovery could not be had from the aforesaid partnership formerly existing between the deceased and Solomon because the deceased received no salary or wages but performed his services and work as his contribution to the joint undertaking.

The primary question presented for determination by this court is whether the deceased at the time he met his death was an employee of Jack C. Solomon, doing business as J & J Water Well Drilling Company. A brief résumé of the facts appears indispensable to a correct understanding of the issues to be determined. The record discloses these pertinent facts.

Jack C. Solomon and one Jeff Burton, both employees of the Schlumberger Well Service Corporation, entered into a partnership with each other about 1954 for the purpose of engaging in the business of drilling water wells. Both men were experienced by virtue of their employment in the technique of drilling. During their spare time they constructed a rig and began drilling water wells during time off from their employment on a 50-50 basis, that is, each was to receive one-half the profits, if their venture was successful, or pay one-half the loss in the event their operations were conducted at a loss. A firm name of J & J Water Well Drilling Company was adopted. This partnership continued until about May, 1955, when Burton sold his interest therein, as well as his interest in the physical equipment of the partnership, to one Joe Kent. Solomon and Kent thereafter pursued the operation of the business as a partnership under the name formerly adopted. Finding that they were unable to personally conduct the drilling operations, either through increase of business or because of their otherwise employment, the services of Stovall were sought and acquired to drill the wells on a basis of pay to Stovall of 50 percent of the net profits earned. The remaining 50 percent was divided equally between Solomon and Kent. Stovall had no interest in the drilling rig or other physical assets of the J & J Water Well Drilling Company.

The partnership between Solomon and Kent was terminated on or about March 28, 1956, by Kent selling to Solomon all his right, title and interest in the partnership known as J & J Water Well Drilling Company, its business, good will, and name, and the present or future profits accrued therefrom, as well as its physical assets. Thereafter operations continued on the same or similar basis between Solomon and Stovall as formerly existed between Stovall on the one hand and Solomon and Kent as the J & J Water Well Drilling Company on the other. Solomon furnished the drilling rig, provided for its lubrication, procured the contracts and collected therefor after the work was done by Stovall with the assistance of one other laborer.

That Stovall was rendering services in a trade, business or occupation covered by the Workmen’s Compensation Statute is not bpen to question. The presumption, therefore, under the statute is that he was an employee. Nevertheless, in our opinion, the evidence establishes,' without serious question of doubt, that such was the actual status of Stovall when accidentally killed. LSA-R.S. 23:1044 provides:

“A person rendering service for another in any of the trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.”

“Partnership” is defined in LSA-C.C. art. 2801 as

“ * * * a synallagmatic and commutative contract made between two or more persons for the mutual participation in the profits which may accrue from property, credit, skill or industry, furnished in determined proportions by the parties.”

And LSA-C.C. art. 2805 provides:

“Partnerships must be created by the. consent of the parties.”

In construing these articles, the Supreme Court, in Chaffraix & Agar v. John B. Lafitte & Co., 30 La.Ann. 631, 639-640, said:

“The true, final, satisfactory, conclusive test is in the answer to the question : What was the real meaning and intention of the parties, as expressed in their contract, whether verbal or written? If they intended to create a partnership they will be treated as partners inter sese and with respect to third persons: If they did not intend to create that relation, but merely to divide the profits, or to share profits and losses, in a speculation or adventure, they will not be partners inter sese, nor will they be liable as such.”

It was likewise held in Collom v. Bruning, 49 La.Ann. 1257, 1262, 22 So. 744, 747, that the mere fact that two persons may both be interested pecuniarily in the same business venture and that each gives to it his time and attention does not carry with it as a matter of law the conclusion that they stand towards each other as partners but that consent shown by one person who has furnished the capital by which certain operations are carried on that another who has employed his time, his skill and given his services for their success should receive one-half of the profits to be derived from the same, is perfectly consistent with the fact that the latter person stands toward the'former as a mere employee.

It was also held in Shushan Bros. & Co. v. Drennan & Hillcoat, 158 La. 480, 485-486, 104 So. 214, 216, that an agreement to participate in the profits of an enterprise was insufficient to establish a partnership in the absence of an intention between the parties to form a partnership, where one of the parties purchased goods in his individual name and the other obligated himself to furnish the necessary funds for such purchases, out of which he was to be reimbursed from the proceeds.

The above and other authorities were reviewed by us in Harper v. Ragus, La.App., 62 So.2d 167, 170, from which we concluded:

“We observe the foregoing authorities determine there must exist an intention to establish a partnership and that such intention must be clearly indicated by the parties to the particular arrangement. The decisions above cited have been approved recently in: Reel v. Brewer, La.App.1942, 6 So.2d 99; Glover v. Mayer, 1946, 209 La. 599, 25 So.2d 242; Whitmeyer v. Poche, La.App.1950, 49 So.2d 69; Carlson v. Ewing, 1951, 219 La. 961, 54 So.2d 414.”

There is no evidence justifying the conclusion that either Stovall or Solomon had any intention of forming a partnership between them. The preponderance of the evidence is to the contrary. Solomon admits that he discussed with Stovall a change in the method of the computation of Stovall’s pay so as to place it on an hourly basis. Withholding tax statement, federal forms W-2, were furnished by defendant showing Stovall’s annual earnings as an employee, the same as furnished the one other employee. No partnership income tax return was ever prepared and filed. Solomon’s individual return was made by a certified public accountant. Solomon admits that no partnership relationship was ever discussed with the accountant. Stovall’s earnings were shown as a deductible item of labor expense from defendant’s gross income.

The manner of operation of the business is inconsistent with defendant’s contention. On the completion and settlement for the drilling of a well, Stovall took his part of the earnings as payment for his labor and services; Solomon and Kent left their interest to accumulate in the partnership between the two of them so as to increase their assets and consequently, their buying power. Solomon made the contracts, collected and deposited the money from the operations, wrote the checks, paid for the material and labor, including that of Sto-vall. No name was ascribed to this purported partnership between Stovall and Solomon. All of these facts convincingly show there was no intention on the part of Solomon to form a partnership with Stovall despite his belated position that Stovall had made various and sundry statements to various and sundry parties to the effect that a partnership did exist between them.

Seemingly undue importance was attached to the statement of plaintiff, who said that her husband had stated to her that he was getting half the profits from the wells he drilled and that “it is almost like being in partners with them”, not that he was in fact a partner. It appears consistent with reason that, had such a partnership existed, Stovall’s statement to his wife would have been direct and positive and unequivocal to that effect. As we construe the expression, it conveys a meaning contrary to that contended by defendants.

Neither can we attach the importance that defendant does to the purported statements of Stovall to the effect he was a member of a partnership with Solomon. Such statements purportedly made by him constitute the weakest kind of proof. With respect to similar testimony, this court, in Hood v. Glass, 198 So. 543, 545, stated:

“Testimony of that character, when standing alone, is entitled to little consideration and should be received with caution, the reason for this being that it is so easily fabricated.”

This testimony not only stands alone but is contradicted and disproved by the facts established by the record, as hereinabove pointed out. The conclusion is, therefore, in our opinion, inescapable there was not only no intention on the part of either Solomon or Stovall to form a partnership and, hence, there was no partnership, but that the proof leaves no doubt but at the time of the accident and his death Stovall was an employee of Solomon, engaged in the performance of his duties as such and within the course and scope of his employer’s business of operating and conducting a water well drilling business.

This conclusion likewise disposes of defendant’s contention there’ existed between him and the deceased a joint venture.

Neither do we find any merit in defendant’s contention that compensation is not payable because of the manner or method by which the deceased’s wages were computed. The jurisprudence is replete with authorities where compensation was allowed on the basis of a laborer’s earnings rather than on a certain stipulated hourly, daily or weekly wage. That has been a consistent rule in the logging and timber industry where wages are calculated on the basis of work done, the number of feet of logs cut, or the number of cords or units of pulpwood produced. So long as a laborer’s earnings may be determined by evidence, the basis for the calculation of the rate of earnings as agreed upon by the parties is a matter of no material consequence.

While our conclusion as to the deceased being an employee of the defendant and not defendant’s partner is predicated upon a preponderance of the evidence, it might be well to state, as we observe, that the defense, based upon an alleged partnership relationship, does not carry with it the exoneration from liability as defendant contends. The Supreme Court in Trappey v. Lumbermen’s Mutual Casualty Co., 229 La. 632, 86 So.2d 515, recognized a partner’s right to compensation as against a partnership of which he was a member. Had the existence of the partnership been proven in the instant case, such partnership would have been obligated to plaintiff for the compensation herein sued for and the defendant, Solomon, as one of the two partners in such an ordinary partnership, would have been liable for, at least, one-half the amount thereof.

For the reasons assigned, Jack C. Solomon, defendant, is liable, in solido, with Kay & Harrison for the compensation as prayed for by plaintiff. Therefore, the judgment should be reversed so far as rejecting plaintiff’s demands against the defendant, Solomon, and rendered in plaintiff’s favor.

Accordingly, the judgment appealed, so far as rejecting plaintiff’s demands against Jack C. Solomon, be and the same is hereby annulled, avoided, reversed and set aside, and it is now, therefore, ordered, adjudged and decreed there be judgment herein in favor of Mrs. Allie Taylor Stovall, individually and for the use and benefit of her four minor children, Sandra Lynn Stovall, James Lee Stovall, Barbara Ann Stovall and Glenda Stovall, and against the defendant, Jack C. Solomon, for the full sum and weekly compensation of $30 per week for 300 weeks, beginning April' 14, 1956, until paid, together with five percent per annum interest on each of said weekly installments from its maturity until paid, and for the additional sum of $300 funeral expense, with five percent per annum interest thereon from judicial demand until paid, and for all costs, including the cost of this appeal, and further fixing plaintiff’s attorney’s fees at 20 percent of the amount of this judgment, not, however, exceeding $1,000, and further decreeing and recognizing said indebtedness on the part of the defendant, Solomon, to be due, in solido, with that for which Kay & Harrison were condemned by the trial court in this cause.

Reversed, in part, and rendered.


text:
    William F. SCHROETER, d/b/a Schroeter Plumbing Company, Plaintiff-Appellant, v. Gordon Alexander O’STEEN, Defendant-Appellant.
    No. 8647.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Rehearing Denied April 26, 1957.
    Writ of Certiorari Denied May 10, 1957.

      Eugene J. Coen, Shreveport, for plaintiff-appellant.
    Tucker, Bronson & Martin, Shreveport, for defendant-appellant.
   GLADNEY, Judge.

The plaintiff furnished the labor and materials required in the installation of the plumbing in defendant’s drive-in restaurant under construction at the intersection of Lakeshore Drive and Cross Lake Boulevard, near Shreveport. When payment therefor was refused, suit was brought to recover the sum of $1,869.54. The defendant has joined issue by denying the reasonableness of the charges and asserting the claim was not in accord with an oral contract between the parties. Coupled also with his answer defendant made demand in reconvention for $2,429.40 for damages allegedly incurred by reason of defective work by the plaintiff.

Following trial on the merits, judgment was rendered in favor of plaintiff in the amount of $1,846.44, and an award was made in favor of the defendant on the re-conventional demand for $1,093.22. The defendant has appealed and plaintiff has answered the appeal asking that the judgment be revised to conform to the full amount claimed by him.

The charges for labor and materials which comprise plaintiff’s claim are based on a “cost plus ten per cent” basis. The defendant in pleadings and testimony has asserted that there existed an oral agreement with Joe Ensminger, representative of plaintiff, fixing a definite price for the work. Ensminger denied any agreement and the parties to the suit now apparently concede that a contract for a definite price for the plumbing work has not been proven. The liability of the defendant, in our opinion, should be measured by application of the cost plus formula contended for by plaintiff. In reaching his decision the judge a quo resorted to the formula for the purpose of fixing a value for the materials and services supplied by plaintiff.

After carefully checking the evidence consisting of invoices, statements and time sheets tendered in support of plaintiff’s claim, we find the following items established as proper charges: materials, $1,074.-44; permits, $17; plumbers’ wages, $369; and laborers’ wages, $151.25. The items total $1,611.69 and are subject to an admitted credit of $23.10, thus leaving a net balance of $1,588.59, which sum with ten per cent added thereto makes a grand total of $1,747.45, and which amount, in our opinion, covers the reasonable cost of labor, materials, profit and overhead furnished to the job.

In connection with certain items embraced in the above charges, it is defendant’s contention that he should not be charged with the cost of services rendered to correct some of the plumbing work which was defectively installed, and for this he claims a credit of $88.38. Conceding, ar-guendo, that such services were performed solely in the correction of plumbing work which did not function properly, we still do not feel at liberty to find the defendant should not be held liable for these charges. Unquestionably, we think, on a “cost plus” basis, some mistakes will be made on a job and certain work would have to be altered or changed so as to meet standard requirements. In the absence of an express agreement providing such repair work shall not be included in the basic cost of a “cost plus” undertaking, we think the item complained of has a proper place in the cost of the job.

Another contention of the defendant is that in one of the invoices covering a total charge of $210.29, plaintiff has included some of the same items making up a separate invoice for $145.05 for tying in the private sewer line to the city sewer line. We have carefully examined the record as to these charges and find no duplication. The item of $145.05 concerns labor and material used solely to tie in, whereas the other materials appear to have been used in bringing the private sewer line up to the point where the tie-in can be made. As a result of our findings we, therefore, have concluded that plaintiff is entitled to have judgment for $1,747.45.

Defendant’s reconventional demand is for damages caused by waste disposal backing up and overflowing the floor of defendant’s drive-in restaurant. The claim arises out of the following alleged acts of faulty plumbing work:

1. Failure of the plaintiff to connect the sanitary line running from defendant’s property to the city line, resulting in the building being flooded by the backing up of water and sewerage into the building.
2. That in pouring the cement into the grease trap, .that the cement had been poured to a depth above the opening of the drain pipe and that consequently the waste did not flow out through the drain pipe, but banked up and flowed backward into the building.
3. That one of the lines from the' commode in the building was blocked* with the original substance — oakum—that the plumber had failed to take out' at the time that the pipe was installed and that consequently water was flowing backwards due to the stoppage of the pipe.
4. That the joints in the grease trap1 had not been properly cemented allowing waste and water to seep out under the foundation of the building.
5. Damage to sheet rock partitions, baseboard and molding, by leaking pipes inside the partition.

From our examination of the record, we are of the opinion the above charges are fully supported by the evidence. The saiiR tary line was not connected with the city line until October 27, 1955, although the city line was completed on July 29, 1955. The defective grease trap was not re-* paired until November 6, 1955.

Under date of August 16, 1955, the as-* sistant city plumbing inspector purportedly made an inspection of the premises and delivered to plaintiff a certificate certifying that the plumbing work had been satisfac-. torily completed. The inspector testified as of that date that the tie-ip of defendant’s private line with the city main had been made. The evidence conclusively shows, however, that the witness was in error in this respect, and that, in fact, the tie-in with the city line had not been made and was not done until October 27, 1955.

The defendant opened his place of business on August 16th, after being advised that his plumbing work was completed. The employees of defendant, H. G. Townsend, who was installing certain equipment for the restaurant, and Q’Steen, testified as to the failure of the plumbing to properly function, and of the presence of damage to the building and supplies, and of foul odors which persisted for some time following the flooding of sewerage. Floyd M. Miller, Chief Sanitarian of Caddo Parish Health Unit, testified as to the faulty construction ■of the grease trap and of the effect of the raw sewerage which backed up from the trap. He ordered the establishment closed and defendant testified it required considerable time to clean up the place. The raw sewerage invaded a walk-in cooler and contaminated food and supplies which had been placed on the floor pending proper storage. It appears that the plumbing did not properly function and caused trouble until about November 6, 1955.

We find that the premises were flooded from back-up sewerage which entered the floor of the walk-in freezer where foods, supplies, paper napkins, paper containers and other items were temporarily stored on the floor, causing damages and almost total loss to these items on August 20, 24 and 26, and September 3 and 4, 1955. We are also convinced that disagreeable and foul odors pervaded the premises and patio for a considerable period following the failure of the sanitary line to eliminate the sewerage, and even after the line was tied in on October 27, 1955, there was seepage and overflow from the grease trap which was repaired by plaintiff on or about November 6, 1955.

The evidence establishes beyond any reasonable doubt that according to custom in the plumbing trade, the responsibility for tieing in a private line with the city main is the responsibility of the plumber on the job. City officials testified that under no circumstances will the city tie in a private line with its street main.

In our opinion it was gross negligence for plaintiff not to keep himself advised as to the time of completion of the city main and, further, he should not have under any circumstances permitted defendant to utilize the plumbing until he was sure that such plumbing was tied in with the city main. Some damage unquestionably was caused by the defective grease trap, the blocking of a line by improperly placed oakum and the leakage of pipes in the partition wall, but undoubtedly plaintiff’s failure to tie in the sewer line was the major cause of the damage sustained by the defendant.

The defendant lists the damages claimed in his reconventional demand, as:

“(a) Loss of profits for the months of October and November, 1955, at $300.00 per month $600.00
“(b) Damage caused to food supplies, paper napkins, paper containers, cups and other items due to flooding of the premises on August 20, 24, and 26, 1955, and on September 3 and 4,1955 $789.40
“(c) Loss to the patio and cost of prospective replacement $300.00
“(d) Nuisance created about the premises due to the noxious and unpleasant odors $750.00
“(e) Damage to sheet rock partition, baseboard and mould-ing by leaking pipe $ 90.00
Total $2,429.40

In allowing to the defendant damages in the sum of $1,093.22, obviously the judge a quo recognized plaintiff’s partial liability for items enumerated (b), (c) and (e), which items, however, actually total $1,179. It is clear the trial judge did not recognize as proven the other items of defendant’s claim, (a) and (d), embracing loss of profits for which $600 was claimed, and $750 allegedly due for nuisance created by the obnoxious and unpleasant odors. With respect to the items approved by the court, amounting to $1,093.22, it is evident that some deduction was made by the court for failure to prove the entirety of the loss claimed for supplies, amounting to $789. In attempting to prove this item the defendant offered in evidence his original invoices, but when the supplies were ordered destroyed as being contaminated by the Caddo Parish Health Officer, O’Steen did not take a detailed inventory of the items disposed of pursuant to the instructions of the Health Officer. Pie testified that each day depletions in his inventory were refilled and that from day to day his inventory would not vary by $100. It is admitted, of course, that at the time of the flooding some of the food and supplies had been consumed in the business operations and the inventory had been to some extent depleted. We assume that the amount deducted by the court was intended to offset this deficiency and we think properly so. The amount awarded for these items, which we think were substantially proved, seems proper and we approve of it.

We are of the opinion, however, that some damage should be allowed for the offensive odors which resulted from the overflowing raw sewerage and apparently persisted during the busy periods of defendant’s business. It is difficult to conceive of anything which would have a more detrimental effect upon the business of selling food than such persistent unpleasant odors. The defendant testified that as a result of such odors caused from the settling of sewerage underneath the patio, he was unable to use that portion of the premises. It is further testified that approximately one hundred gallons of disinfectant were used in an attempt to sterilize and rid the premises of the disagreeable odor. We, therefore, find defendant is entitled to damages which we fix at $350.

Defendant strenuously argues that the sum of $600 should be allowed for loss of profits at the rate of $300 per month for the months of September and October. In order to prove this item defendant tendered his profit and loss sheets of his business and furnished testimony indicating that the weather was good during the period of time when the business allegedly suffered by reason of the defective plumbing. It is, of course, a difficult matter to prove that customers of the restaurant have failed to patronize it because of such a condition as 'occurred in the instant case and we find that defendant has failed to prove such a loss of business and • resulting profits through the evidence tendered. Therefore, we are of the opinion that this item of damages was properly disallowed by the trial court.

In consequence of our findings we have concluded that the judgment in favor of the defendant, the plaintiff in reconvention, should be increased by the sum of $350.

It follows from our findings herein as above set forth, that the judgment from which appealed should be amended by awarding to plaintiff the sum of $1,747.45, and to the defendant the sum of $1,443.22, and as so amended the judgment is affirmed in all other respects. The costs of this appeal shall be taxed against plaintiff and other costs assessed as provided in the judgment from which appealed.


text:
    Frederick E. GREER et ux., Plaintiffs-Appellants, v. C. M. LOWE et al., Defendants-Appellees.
    No. 8643.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Rehearing Denied April 28, 1957.

      Jackson, Smith, Mayer & Kennedy, Shreveport, for appellants.
    Cook, Clark, Egan, Yancy & King, Shreveport, for appellees.
   GLADNEY, Judge.

This case arose under provisions of LSA-R.S. 9:4201-4217, referred to as the'Louisiana Arbitration Law, and the appeal to this court is from a judgment in favor of defendants vacating the award of the arbitrator and rejecting plaintiffs’ demands.

There is no controversy' over the facts pertinent to the determination of the cause. These are tersely set forth in a communication addressed to Stanley Herbert, who was appointed by the court to arbitrate the matters in dispute. The letter jointly approved by the parties litigant, reads:

“Under date of August 30, 1951, Mr. and Mrs. Frederick E. Greer entered into a building contract with Mr. C. M. Lowe for the construction of a dwelling located on Lot 4 of Glen Iris Addition Unit No. 2, a subdivision of the City of Shreveport, Caddo Parish, Louisiana, as per plans and specifications on file with the Home Federal Savings & Loan Association of Shreveport.
“Under the terms and provisions of this agreement it was provided that the work under the contract should be done under the supervision of the inspector of Home Federal Savings & Loan Association of Shreveport and that all disputes between the parties to the contract shall be arbitrated by him.
“Since the completion of this job there has existed between the contractor and the owner various disputes which they have not been able ■ to amicably agree upon. It has, therefore, become necessary for them to refer these matters to you for your determination in accordance with the above mentioned contract.
“The owners contend that the contractor has not fulfilled the obligations imposed upon him by the contract in the following respects:
“1. The exterior of the premises was not properly painted in accordance with the plans and specifications.
“2. The fixtures used in the bathrooms were not in accordance with the specifications and not installed accordingly.
“The contractor denies the above contentions of the owners and contends that all of the work was properly completed in accordance with the plans and specifications and further contends that the work was inspected, approved and accepted by the architect selected and employed by the owners.
“The owners and the contractor do hereby request that you make the necessary investigation and study to determine these disputes and that after you have done so that you furnish them with a written statement setting forth:
“1. Whether the work above referred to was properly completed in accordance with the plans and specifications and if not—
“2. The expense that would have to be incurred in order to properly complete the job in those respects.
“In connection with your investigation of this matter you may refer to any sources of information you may wish. However, the following parties have had occasion to make inquiry and may afford you information and assistance:
“1. C. M. Lowe, contractor
“2. Mr. and Mrs. F. E. Greer, owners
“3. Pete Schexnaidre, paint contractor
“4. Fred Spruell, paint contractor
“5. Joseph P. Schierer, architect
“6. Charles McBride, Paint subcontractor
“7. Ray Elder, general contractor
“It would be appreciated if you would give this matter your earliest attention.
“The contractor is represented by Mr. Sidney E. Cook, attorney and the owners are represented by Mr. Chas. L. Mayer, attorney. If either of these gentlemen can be of any assistance to you, do not hesitate to call upon them.”

Several weeks after receipt of the communication Stanley Herbert made the following report:

“Following my appointment by the court as arbitrator in the above matter, I made an investigation into the complaints where were being made by Mr. and Mrs. Greer. My inspection reflects that the paint upon the house was in a deplorable condition. I noted particularly the condition of the front and right sides of the house and garage. The front of the house has been touched up and spotted just here and there and looks awful and the two sides of the house have peeled off terrible. In my opinion this condition is the result of one of the following:
“1. The lumber used was not properly kiln dried, or
“2. The lumber was wet or damp when the primer coat was applied, or
“3. The paint could have been thinned with the wrong kind of thinner, or
“4. The weather could have been unfavorable so that the lumber was wet and the primer coat could not penetrate into the wood which would result in the hot sun on those sides causing the paint to pop and peel.
“My further inspection of the bathroom fixtures revealed that' the drains do not properly work and in my opinion the plumbing which was installed was not in accordance with those called for in the specifications.
“I estimate that the cost of properly correcting the above mentioned conditions would be between $1,000.00 and $1,200.00.”

Upon receipt of this report, the Distri Judge then wrote Herbert:

“It has been called to the attention of the court that in your letter of October 20, 1955, addressed to the court in regard to your report as an arbitrator in the above case, that you did not base your report on the plans and specifications with regard to the condition of the paint. You did however state that the plumbing was not installed in accordance with the specifications.
“Will you supplement your report by consulting the plans and specifications and pointing out wherein the work and material fell below that called for in said plans and specifications, if such be the case, and also break down the approximate cost of the painting and plumbing. Please give this supplemental report to the court within the next ten days,
“Thanking you for your immediate attention to this matter, I am
“Very truly yours,
/s/ Henry F. Turner
District Judge.”

Complying with the request of the judge, the arbitrator supplemented his report of October 20, 1955, with the following reply:

“In compliance with your request of December 6th, and supplementing my previous report dated October 20, 1955.
“I understand that paints sold by the Pittsburgh Plate Glass Company were used on the house involved in this litigation. Inasmuch as the house was painted about four years ago, I cannot say if the specifications were followed or not.
“My estimate of the cost of properly painting the structure is about $1,000.-00.
“My estimate of the cost of necessary plumbing repairs and replacements is approximately $200.00.
“Very truly yours,
/s/ Stanley Herbert,
Arbitrator.”

Following the filings of the reports by Herbert, plaintiffs petitioned the court for a confirmation of the award, contending the arbitrator had made an award in their favor for $1,000. The defendants, on the-other hand, moved for a vacation of the award, relying upon LSA-R.S. 9:4210.

The matters in dispute related to, first, the exterior painting, and, second, the bathroom fixtures. The mandate submitted to Herbert specifically required a finding whether these matters were in accordance with the plans and specifications, and, if not, the expense involved to remedy the conditions. The two reports of Herbert must be read together forasmuch as the second was supplementary to the first.

With respect to the painting, it is clear the arbitrator made no definite award upon the subject matter submitted, for he reports, that “as the house was painted about four years ago, I cannot say if the specifications, were followed or not.” The court a quo,, therefore, properly entered a decree vacating the ward as to this item and LSA-R.S.. 9:4210(D) directs the judge to issue such, an order:

“Where the arbitrators exceeded their powers or so imperfectly executed, them that a mutual, final, and definite-award upon the subject matter submitted was not made * *

Counsel for appellants in support of' their contention, filed into the record a copy-of the plans and specifications, and earnestly argue that the first report of Herbert-made findings indicating the specifications, were not complied with. The argument is. untenable for it would require the court to. substitute its conclusion for that of the-arbitrator. Such action would be in conflict with the statutory authority given the-court to reverse the awards of arbitrators, which authority is limited to that conferred' by statute. Housing Authority of New Orleans v. Henry Ericsson Co., 1941, 197 La. 732, 2 So.2d 195.

The award relating to the bathroom fixtures and their installation is definite, and in our opinion, meets the requirements of the letter submitting this matter.. The finding discloses that the specifications were not complied with and the expense therefrom to the owners is fixed at $200. We think the arbitrator was not required to do more than this and that our brother below erred in failing to confirm the award in this respect.

The conclusions herein reached affirm the judgment from which appealed only insofar as it vacates the award of the arbitrator relating to the dispute concerning the painting. The judgment is reversed so far as it vacates the award of the arbitrator dealing with the bathroom fixtures and the installation thereof, and it is now ordered that judgment be entered herein in favor of Mr. and Mrs. Frederick E. Greer and against C. M. Lowe and United States Casualty Company confirming an award for the sum of $200 in plaintiffs’ favor, with legal interest thereon from the date this judgment becomes final. It is further ordered that appellees be taxed with all costs.