text:
    232 La. 617
    STATE of Louisiana ex rel. Mr. and Mrs. Earl J. LOMBARDO, v. Mr. and Mrs. George MILLER, Jr.
    No. 42961.
    Supreme Court of Louisiana.
    April 1, 1957.

      Herbert J. Garon, New Orleans, for plaintiff-appellant.
    Clem H. Sehrt, Edward J. Boyle, Dudley A. Philips, Jr., New Orleans, for defendant-appellee.
   FOURNET, Chief Justice.

Mr. and Mrs. Earl J. Lombardo, who were married July 9, 1947, alleging that Katherine Elizabeth, the child born of that marriage on May 4, 1948, had been placed temporarily with respondents, Mr. and Mrs. George Miller, Jr., following the separation and divorce of relators in 1950 but who have, since their remarriage on February 15, 1956, refused to surrender her, obtained, on February 21, 1956, a writ of habeas corpus commanding them to produce the child and show cause why she should not be released and returned to her parents. The child was, accordingly, produced in court and, in answer, respondents generally denied the allegations of the petition, averring affirmatively, without factual basis therefor being specified, that relators were “not fit and proper persons and should be deprived of the custody” of the minor, which should be granted respondents. Following trial judgment was rendered recalling the writ and granting the permanent care, custody, and control of Katherine Elizabeth to respondents. From this judgment the relators have appealed.

Under all natural and Biblical law, as well as the statutes of this state, the custody, control, and guardianship of a child belongs to the mother and father and courts are reluctant to interfere with this parental right and authority except when satisfied the parents “will neglect them, or expose them to improper influences, in which case the paramount interest which society has in seeing to it that they be well taken care of and properly brought up would justify the court in making some other disposition of them. Ex parte Lincoln, 128 La. 278, 54 So. 818; State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411; State ex rel. Bethany v. Corley, 172 La. 266, 134 So. 87, and the burden is on those resisting the parent’s right to show his or her disqualification or unfitness to have the custody of the child. State ex rel. Burleigh v. Savoie, 185 La. 985, 171 So. 98; State ex rel. Perdue v. Carkuff, 182 La. 921, 162 So. 729; Heitkamp v. Ragan, 142 La. 81, 76 So. 247. In the case of Heitkamp v. Ragan, supra, this court quoted with approval the holding in Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 51 L.R.A. 839, as follows: ‘And while we are bound also to regard the permanent interests and welfare of the child, it is to be presumed that its interests and welfare will be best prompted by continuing that guardianship which the law has provided until it is made plainly to appear that the father (or mother) is no longer worthy of the trust. The breaking of the ties which bind the father (or mother) and the child can never be justified without the most solid and substantial reasons.’ (Brackets ours.) 142 La. at page 84, 76 So. at page 248.” State ex rel. Martin v. Garza, 217 La. 532, 46 So.2d 760, 762. (The emphasis has been supplied.)

We find the pertinent facts of the case as disclosed by the record to be that relators separated some four months after marriage and while relatrix was with child. She thereupon returned to her mother’s home, where she continued to reside until shortly prior to the remarriage in 1956. There she cared for her child with the aid of her mother from its birth in 1948 until her mother became ill and needed operative treatment in the fall of 1952. From this time the child has remained with respondents (the sister and brother-in-law of re-latrix), who frequently kept the child during earlier years and who had become attached to her, the mother of relatrix, following her recovery, being unwilling to cooperate further with the care of the child during the hours relatrix worked. Whenever relatrix sought the return of the child she was met with threats that the asistance of the father would be secured and the child taken from her by him. However, re-latrix continued to contribute to the child’s support commensurate with her means and as the respondents would permit. She also visited with her daughter frequently until more recent years when her right of visitation and to have the child with her on occasions was so curtailed by respondents it was most difficult to see her daughter. When respondents refused to turn the child over to the mother and father without litigation following their remarriage, this suit followed.

It would serve no useful purpose to analyze the sordid testimony given by some members of the family of the rela-trix. Suffice it to say that respondents have failed to carry their burden of proving relators, by their conduct, forfeited' their right to the custody and control of their daughter, and the trial judge erred in concluding they had. We are also convinced, despite protestations of respondents-to the contrary, that the child was never abandoned by relatrix and was only placed with respondents on a temporary basis,, which continued because of the unwillingness of the mother of relatrix to assist in its care. In fact, we are impressed with the frankness and honesty of the testimony given by relatrix throughout. That the child was never neglected and was at all times given the best possible care by respondents is not denied by relatrix. Actually, respondents took such good care of the child and became so attached to her they desire to keep her to the exclusion of her own mother and father.

Since this appeal was lodged here, however, we are advised by counsel for respondents, which is confirmed by counsel of record representing relators, that relátors have again separated and relatrix has instituted separation proceedings. based on cruelty. It also appears relatrix is again with child and without funds. We are further advised by counsel for relators since the case was submitted under orders of the court that when he spoke to them in January of 1957 the father expressed the belief he would be unsuccessful in the appeal under present circumstances and desired to abandon it, and the mother stated she did not feel she could prosecute the appeal alone although she loved and wanted her child. Counsel further advises he did not then press matters (although he prepared a motion of abandonment of appeal which was sent to relators for signature and never returned) since the parties seemed to have lost confidence in him (apparently because of his failure to win the case below) and had actually sought advice from other ■counsel in whom greater confidence was reposed, but whom relatrix states she is unable to employ to represent her.

Under these circumstances, and particularly in view of the fact that judgments awarding custody of minor children are subject to change and modification at any time, State ex rel. Castille v. Cooke, 183 La. 404, 164 So. 153; State ex rel. Burleigh v. Savoie, 185 La. 985, 171 So. 98; State ex rel. Girtman v. Ricketson, 221 La. 691, 60 So.2d 88, we are reluctant to take the child from respondents at this particular time and will continue the care and custody of the subject child with them on a temporary basis, with, however, reservation of visitation rights and privileges to the parents, including having the child visit with relatrix. The judgment of the lower court will, accordingly, be recast to reflect this conclusion, and, as thus recast, will be affirmed.

For the reasons assigned, the judgment of the lower court is recast to read as follows:

It is ordered, adjudged, and decreed that the writ of habeas corpus heretofore granted herein be vacated and annulled, and that the said relators’, Mr. and Mrs. Earl J. Lombardo’s, demands be rejected at their costs; and

It is further ordered, adjudged, and decreed that the temporary care, custody and control of the minor child, Katherine Elizabeth Lombardo, be granted to the respondents, Mr. and Mrs. George Miller, Jr., with full and proper visitation privileges reserved to the relators, Mr. and Mrs. Earl J. Lombardo.

      . Although the divorce was instituted by relator on the ground of two-year separation, the legal custody of the child was awarded relatrix in the decree.

      . Articles 35, 146, 157, 215-220, 227, and 250 of the Revised Civil Code. The jurisprudence thereunder is in accord.

      . The only charge of unfitness that is apparently levelled at the father is one of indifference, and while there are charges and counter-charges by members of the family of relatrix (but not by respondents and relatrix) with respect to the morals of Mrs. Lombardo and Mrs. Miller, it would appear that even if these charges are true the moral code of both is not too different. However, nowhere in the record is it made to appear the child was at any time exposed to any of the alleged acts of immorality or that the mother ever did anything to corrupt or tend to corrupt the morals of the child. Under these circumstances, the ruling in In re Knight, 212 La. 357, 31 So.2d 825, is controlling here.

      . Neither counsel filed brief here or argued the case in open court.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    PORT FINANCE COMPANY, Inc. v. Frances CAMPBELL.
    No. 4412.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.

      Ward L. Tilly, New Iberia, for appellant.
    Helm, Simon & Gordy, New Iberia, for appellee.
   ELLIS, Judge.

Plaintiff sold a second hand automobile to the defendant for which he took a chattel mortgage note for $765, which carried interest at 8% plus 25% on principal and interest as attorneys fees, payable in 18 equal monthly installments of $42.50, the first installment being due January 7, 1955. The defendant failed to pay any installment and on March 22, 1955 the present suit was filed seeking judgment for the face amount of the note and recognition of the special lien and privilege and chattel mortgage against the second hand automobile.

The defendant admitted the purchase of the second hand automobile, the execution of the note and the chattel mortgage, and asked for a rescission of the sale for red-hibitory defects.

The case was duly tried and the district court ordered the sale rescinded and awarded the defendant a judgment against the plaintiff in the sum of $90 which he found to be the equity plaintiff was entitled to in the car traded in the deal. From this judgment plaintiff has appealed.

It appears that the defendant purchased from the plaintiff through used car dealers, Mannina and Fremin, at New Iberia an alleged ’49 Mercury two door automobile. He was allowed $250 on his old Chevrolet of which amount he testified he still owed about $160, and $90 of the $250 was credited on the purchase price of the ’49 Mercury.

On December 1st, plaintiff went by the used car lot of Mannina and Fremin and was shown the ’49 Mercury which belonged to the plaintiff. He was given the key and allowed to drive the car. Upon his return he complained of the smoke, and he stated the agents told him it was because the car had sat there a long time unused. However, the used car dealer purchased a breather cap or hose which they put over the spout through which the oil is put in the motor in order to direct the smoke under the car and to prevent its coming up in the car and annoying the occupants. The agents contend that they made no representations about the car as it did not belong to them and that they called the plaintiff and told them the defendant wanted to trade his Chevrolet in and the terms were dictated by the plaintiff. The defendant, however, and his companions testified that these dealers told them it was a good car. The plaintiff bought the car and gave his old car on which he was allowed $250 and signed a note for $765. Plaintiffs say that the sale price on the ’49 Mercury was only $495 and the difference in the total price which was $855 was made up of insurance and other items. $90 was deducted from the $855 as the equity which defendant had in the car traded in of $90.

This action is brought under Article 2520 of the LSA-Civil Code which provides:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

and Article 2530 which provides: .

“The buyer who institutes the red-hibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

The District Court found from the facts that the ’49 Mercury was practically useless and so much so that the defendant would not have purchased it had he known of the vices. We believe that his finding of fact is amply sustained by the testimony in this record, although the plaintiff complains that the witnesses were relatives or friends of the defendant. The District Court believed these witnesses and we see nothing in the record to justify a disbelief on their part. It is clearly shown that the automobile smoked so on the short trial run that what one witness described as a hose and the other as a breather cap was put over the opening through which oil was put into the motor so as to direct these fumes and smoke under the car. Plaintiff argues that the use of oil was an apparent vice. We do not believe that defendant can be charged with knowledge of this fact merely from the smoke coming in the car. He is an uneducated laborer. In addition the testimony shows that the car would hardly run and that it burned an excessive amount of oil, the shock absorbers were completely worn out, it stopped on one trip they attempted to make and they had to get someone to come and bring the family home and tow the automobile in. This all happened within approximately three weeks of its purchase. It is also practically proven that the motor in this case was a Ford motor rather than a Mercury motor. The ignition key had Ford written on it and there is other positive testimony that it is not a Mercury motor. The mechanic who made some repairs on the automobile for the plaintiff prior to its sale to defendant testified that he paid no attention to that difference, that the only difference was seven horsepower and one would have to measure the cylinder bore. We imagine the Mercury people would object strenuously to the accuracy of this testimony. It is definitely shown that the Mercury motor at that time had approximately twenty-five more horsepower than the Ford, and for the mechanic not to know the difference in a Ford and Mercury motor does not speak too highly of his knowledge.

Opposed to the various witnesses which the defendant offered as to the absolute worthlessness of the ’49 Mercury, is that of the mechanic who said he put $83 worth of work on the motor and who could not testify positively as to whether it was a Ford or Mercury motor, and a body man who did an excellent job from the testimony of making the outside of this Mercury very attractive. According to the witnesses this was its most attractive feature.

We are convinced from the testimony that there was no manifest error in the finding of the trial judge as to the condition of ’49 Mercury. In fact, we will agree with his evaluation of the facts, however, the plaintiffs contend that under the terms of this judgment he has lost $160 cash; which was paid out to extinguish the mortgage on the vehicle traded in by defendant, and, secondly, he lost the ’49 Mercury automobile on which they had expended over $200 in repairs shortly prior to the sale, because the automobile was left out in the weather, the headlights knocked out and the windows down so that the inside of the automobile was drenched with rain and, in short, the automobile by the lack of care while in the defendant’s possession became valueless and, third, plaintiff claims the loss of the $90 which the lower court awarded to the defendant for his equity in the old Chevrolet traded in by him to the plaintiff.

The plaintiff argues that the aim and purpose of the relief afforded in cases where the action in redhibition applies is to place the parties, buyer and seller, in ■“status quo” or in the position they were in prior to the transfer of the property. There is no doubt but that his position is well taken. The courts of Louisiana have held many times that in the case of the rescinding of a sale for defects in the article sold, equity and justice requires that the parties be placed in the same position they were in before the sale as nearly as is possible under the circumstances. Plaintiffs further contend that in order for the defendant to maintain the redhibitory action in this case he should have offered to restore the plaintiff to the state which existed at the time of the sale and, therefore, the defendant must have tendered or made an offer to tender of the. automobile to the plaintiff. There is no question but that this is the law as shown by the following cases cited by plaintiff, viz., Galt v. Herndon, 16 La.App. 239, 133 So. 800; Goode-Cage Drug Co. v. Ives, 16 La.App. 383, 133 So. 813; Hitt v. Herndon, 166 La. 497, 117 So. 568; Kings Truck and Body Works v. Barrett, La.App., 39 So.2d 601; Womack v. Lafayette Furniture Co., La. App., 50 So.2d 843.

Therefore, in the present case the plaintiff contends that the defendant had to offer him the Mercury automobile plus $160 in cash which they are supposed to have paid as the balance due on a mortgage against the Chevrolet before defendant would be entitled to a judgment.

Defendant testified that his wife wrote to- the plaintiff prior to the time that the first note became due that the automobile was worthless and that unless they could repair it, that he was unable to repair and pay for it, and that they could take the automobile. Plaintiff states that they never received any such letter and it is possible that the defendants are confused, for they did write a letter and it is in evidence, to plaintiff’s attorney dated Feb. 15, 1955, in answer to a letter by the attorney to them, evidently demanding payment of the first installment. In effect they state the car is useless and the motor is not the one that is supposed to have been in it and they could not pay for it and repair it, too. In one paragraph the letter states: “I did not borrow the money to pay this car. It was already for the finance company.” By this he meant that the finance company could have the automobile, in other words, he was tendering it back. Defendant testified that after he wrote the first letter to the plaintiffs which they deny receiving, that a representative of the plaintiff visited him and that he told him at that time that the car was worthless and offered to give him the car and that this man said he did not want it but that he was going to come back and pick it up with the Sheriff and sell it at auction. It is admitted that a Mr. Hudson was representative of the plaintiff and was still in their employ at the time of the trial and he had come to see the defendant about this automobile, yet he was never placed on the stand and the defendant’s testimony stands uncon-tradicted in the record to the effect that he was visited by a representative of the company and he told them how worthless the car was and offered the car back at that time and it was refused. In other words, the testimony in this case satisfies the requirements of the law that a tender was made and that any further tender by the defendant would have been a vain and useless thing. Corroborative of this is the fact that there are letters between the attorneys with regard to a compromise. At no time did the plaintiffs say they would take the car back, accept $160 and return the old car of the defendant’s to him. The only car which the defendant could tender or the only thing he could do to place them in the same positions they were in prior to the sale was to offer the return of the ’49 Mercury. The plaintiffs had possession, presumably, of defendant’s old car at that time, as they stated they sold it many months later for junk. As to the $160 which the defendant admitted owing on his old Chevrolet car, there is not one line of proof in the record that the plaintiffs ever paid this amount or to whom it was owed. Be this as it may, the defendant made the only offer required of him, that is, to return the car which he got from them. It was up to the plaintiffs as to what was to be done about the defendant’s old car.

The letters with regard to a settlement of the case do not really show that the plaintiff would have accepted a return of the ’49 Mercury and $160 and return the defendant’s old car to him even if it had been offered. They wanted the Mercury automobile plus $250 plus $100 to compensate for the use of the vehicle by Campbell from the date of purchase, that is, December 1, 1954. This letter was written June 1, 1955. On July 15, 1955 the plaintiff’s attorney wrote another letter in which he stated he had submitted a counter proposal from defendant’s attorney to the plaintiff but that after the representative had made an inspection of the Mercury automobile he had been advised that a compromise “is absolutely impossible.” Therefore, the question of a tender or offer by the defendant was removed as a bar to his maintenance of this action for a rescission of the sale.

Plaintiffs argue also that the Mercury became valueless and it was impossible for the defendant to comply with the law, that is, place the parties as nearly as possible under the circumstances in status quo. It is shown that a representative of the company inspected this automobile less than two months after it was sold and notified the defendant that he was going to have it seized and sold. At that time the car was sitting on defendant’s lot. Nothing was done even though the suit was filed in March 1955. In July 1955 the car was again inspected with regard to a compromise and it is then that they found that the headlights had been knocked out, the defendant said by children in the neighborhood, and the interior soaked with rain so that it was mildewed and ruined.

It appears from the record that the defendant was very prompt in notifying the plaintiff of the condition of the automobile and in offering it back to them, and they were very prompt in filing this suit in March 1955. Why they did not complete the seisure and have the car moved and protected is not shown by the record. They chose to leave it there and the defendant cannot be held responsible so as to bar his right to a rescission of the sale.

In view of the fact that there was actually no cash involved in this deal and the defendant apparently did not actually lose $90 we believe that the parties would be placed in the same position they were before the sale, as nearly as is possible, under the circumstances, by amending the judgment so as to strike out the. award of $90 to the defendant.

It is therefore ordered that the Judgment of the District Court be amended by annulling that portion which awarded to-the defendant the sum of $90 and as thus amended the judgment be affirmed.


text:
    Clayton J. GUILBEAU v. Honore TATE et al.
    No. 4405.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.

      A. V. Pavy, Ed. V. Pavy, L. Austin Fontenot, Sr., Opelousas, Jack C. Fruge, Ville Platte, for appellant.
    Garland, Dejean & LeHaye, Dubuisson & Dubuisson, Opelousas, for appellee.
   ELLIS, Judge.

The defendants have appealed from a judgment awarding damages to the plaintiff for an alleged trespass, false imprisonment, and mental anguish, humiliation and embarrassment, arising out of the alleged false imprisonment, and the defendant, Honoré Tate, has appealed from a judgment against him individually for damages awarded to plaintiff as the result of an alleged laceration of plaintiff’s forehead, disfigurement as the result of a permanent scar, pain, suffering, mental anguish, humiliation and embarrassment arising out of malicious prosecution, and aggravation of an existent disease.

Plaintiff has answered the appeal and asked that the awards be increased.

The three defendants at the time of the occurrence which resulted in this suit were wild life agents whose authority in this case is governed by LSA-R.S. 56:108. The plaintiff is an ex-representative and sheriff for a number of years of the parish of St. Landry and owned what is referred to in the record as a camp but in reality was a second home, located south of Krotz Springs to the west of the Atchafalaya River and bounded on the south by Bayou Courte Bleau. The property is enclosed on all sides except along the Bayou. It is shown that the plaintiff had every convenience including washing machine, television, etc., that he had in his home in Opelousas, and that he spent almost an equal amount of time at this place as he did at his home in Opelousas.

On July 31, 1953 the plaintiff and three personal and business acquaintances had gone to his place on the bayou for the purpose of eating a fish dinner and discussing a matter of business. Around four o’clock in the evening Wild Life Agents, Tate, Doucet and Rozas were going along the river road which passed plaintiff’s property to investigate a report of illegal rabbit hunting south of plaintiff’s property and in no wise connected with the plaintiff. When they passed the road which lead into plaintiff’s property Agent Tate saw an automobile parked in plaintiff’s yard, whereupon Tate ordered the driver to stop back up and go into plaintiff’s property. It is further shown that there was quite a bit of ill feeling between Tate and the plaintiff as the result of Tate, during his previous service with the Wild Life Division, having gone into the plaintiff’s property when he was sheriff and entertaining a number of his friends, at which time he accused the plaintiff of having violated the law by possession of frog legs which he was cooking for his guests subsequent to the close of the season. The plaintiff denies that there was any violation of the law and it is clear from the record that plaintiff had told Tate not to come back on his property.

At the time these defendant agents went into plaintiff’s property the latter, together with his guests, were sitting in chairs in the yard discussing their contemplated business transaction, and the plaintiff had his back to the defendants. Agent Tat'e inquired something about fishing on which he was informed that they were not fishing, and immediately thereafter the plaintiff saw Tate and asked him what he was doing there and that he did not want him on his property. Tate replied that they were making a routine check and that he did not have to get off of the property, and also said something to the effect that the plaintiff had violated the law before and he was probably still violating it. This infuriated the plaintiff and one word led to another and the plaintiff struck at Agent Tate but missed him and in return was struck over the eye causing a cut that bled very freely. There was quite a bit of excitement and cursing and Tate informed the plaintiff that he was under arrest, to which the plaintiff objected, and Tate told him that he was going to take him if he had to drag him.

Plaintiff’s guests as well as the other two agents with Tate attempted, as soon as they realized seriousness of the situation, to prevent it. Plaintiff’s guests persuaded the agents to allow them to drive with the plaintiff to the court house in Opelousas. Throughout the entire visit and argument and altercation Tate apparently took charge. Nothing was said about the other two agents and the plaintiff very frankly testified that he did not specifically order Agents Doucet and Rozas from his property and would not have done so in any event had Tate not been with them.

While we have numerous briefs and supplemental briefs and a fairly voluminous record, the case does not present any difficult questions, but it did undoubtedly arouse quite a bit of controversy in the parish of St. Landry. The plaintiff was followed by the agents to the court house in Opelousas and into the court house, where they were met by a number of people including the District Attorney of the Parish of St. Landry. Upon seeing the condition of the plaintiff, who, in addition to bleeding freely at the time and ever since he had been struck by Tate, was extremely upset emotionally. Plaintiff was a sufferer from Parkinson disease at the time of the occurrence, and it is shown that people with this affliction are prone to be susceptible to abnormal emotional upsets. The District Attorney immediately ordered the plaintiff’s friends to take him to the hospital, and after a discussion with Agent Tate, who apparently was in charge or took charge of the situation advised the later against making any charges against plaintiff. Tate, however, called up his superior officer and upon the facts as related by the former was advised next day to make a charge against plaintiff for interference with an officer in the performance of his duties. It is further shown that in September 1953 Tate made two more charges against the plaintiff, and the record reveals that Tate was convicted of criminal trespass upon a charge by the plaintiff, and was found guilty of false imprisonment by the District Court.

It is first necessary that we decide whether these agents were acting within the legal authority which is set forth in part in LSA-R.S. 56:108 as follows:

“To secure the effective protection of wild birds and game quadrupeds, the commissioner shall appoint not less than twenty-five wildlife agents'whose entire time shall be, under the direction of the commissioner, devoted to the performance of their official duty under this Sub-part. * * *
“The commissioner, any wild life agent, or any of the various sheriffs, deputy sheriffs, constables, deputy constables, and other police officers of this state may without warrant arrest any person violating the provisions of this Sub-part in his presence or view, and may take such person in custody immediately for examination or trial before any officer or court of competent jurisdiction of this state or of the United States, and may serve and execute any warrant or other process, issued by any officer or court of this state of competent jurisdiction, for the enforcement of the provisions of this Sub-part.-
“The commissioner or any agent may visit or examine, with or without search warrant, any cold storage plant, warehouse, boat, store, car, conveyance, automobile or other vehicle, airplane or other air craft, basket or other receptacle or any place or deposit for wild birds or game quadrupeds, whenever they have probable cause to believe that any provision of this Sub-part has been violated.” * * *

Under the above law, an agent could arrest without a warrant any person violating the provisions “of this Sub-part in his presence or view” and “may visit or examine, with or without search warrant * * any place * * * whenever they have probable cause to believe that any provision of this Sub-part has been violated”. Under the facts in this case there is no testimony that these agents had any probable cause to believe that the law was being violated by the plaintiff or his friends. The primary motive for their mission or trip on this afternoon was to investigate a report of illegal rabbit hunting to the south of plaintiff’s place on the Atchafalaya River. While plaintiff had “No Trespass” signs on his property we believe that the agents could have paid a personal visit and would not be guilty of trespass on this private property unless and until the owner ordered them off, that is, objected to their driving into his property. In other words, the agents could not be held liable in damages for trespass merely because they paid a personal visit to the party’s camp or his home until they were notified to leave and refused. In the present case, however, the facts show that there was ill feeling between Tate and the plaintiff due to a previous visit by Tate during a party at which the plaintiff was entertaining a number of his friends. On that occasion Tate, according to the record, had been told that there was a violation of the law and under the facts we would conclude that on the prior visit he had probable cause, however, on the date in question he had no probable cause to expect a violation of the law and had no right over the objection of the plaintiff to go on the latter’s property with a search warrant. He well knew that plaintiff had ordered him out on the previous visit and had told him never to come back on his property, and if Tate wished to go in his official capacity as an agent he should have obtained the proper legal protection, viz., a search warrant. In addition to the previous episode between Tate and plaintiff, it is shown that Tate lost his job for some 13 months or until there was a change in the administration, evidently as a result of his visit to the plaintiff’s camp with regard to the frog legs. Therefore, there is no doubt as to the ill feeling each had for the other and no doubt but that Tate knew that plaintiff objected to his presence on his property. Under the facts, these agents were in the same status, so to speak, as individuals. They had no search warrant and no testimony in the record to show any probable cause on their part to believe that the law which they were employed to enforce was being violated. The jury evidently believed, and we agree with them, that Tate ordered the driver to back up and go in plaintiff’s property merely to harrass and get even with plaintiff.

Our brethren of the Second Circuit in the recent case of Loe v. Whitman, La.App., 87 So.2d 217, 219, correctly stated the law with regard to personal liability of an officer, as follows:

“It must be recognized, of course, that there is no personal liability on the individual acting strictly pursuant to his public duties when that act is in good faith and without malice, for in such instances the action of the individual becomes merged in the official act. See: Monnier v. Godbold, 1906, 116 La. 165, 40 So. 604, 5 L.R.A.,N.S., 463; Tucker v. Edwards, 1948, 214 La. 560, 38 So.2d 241. Strahan v. Fussell, 1951, 218 La. 682, 50 So.2d 805. On the other hand when the defendant acts outside of his strict authority he breaches the condition of his immunity and is liable to a civil action for damages to persons harmed by his improper conduct. Harper on Torts, sec. 298, p. 668; 2 Shearman and Redfield on Negligence (Rev’d Ed.) sec. 323, p. 792; 2 Elliott on Roads and Streets (4th Ed.) sec. 858, p. 1120; see also David, the Tort Liability of Public Officers, 12 So.Cal.L. Rev. 127, 151; Thibodaux v. Town of Thibodaux, 46 La.Ann. 1528, 16 So. 450; Lecourt v. Gaster, 50 La.Ann. 521, 23 So. 463; Tucker v. Edwards, supra; Anders v. McConnell, La.App., 31 So.2d 237; Strahan v. Fussell, 1951, supra.

The verdict of the jury and the judgment signed by the court is correct insofar as Tate’s liability is concerned. He was not acting strictly in pursuance of his public duties nor in good faith and without malice, but was acting outside of his strict authority. Tate was clearly a trespasser under the facts in this case. It is argued, however, that the plaintiff attempted to strike the first blow. It appears from the record that this is true, however, when Tate violated the warning of the plaintiff not to come on his property and went there without any search warrant and without probable cause to believe that the law was being violated, he became an ordinary trespasser and the plaintiff had a right to order him off and if he refused to attempt to put him off. Furthermore, Tate was the aggressor in this entire affray for his visit was not only unlawful but inspired by malice and with ill feeling toward the plaintiff, which he well knew would goad the plaintiff into a fury. Counsel for defendant Tate argues that the latter had a right to arrest the plaintiff because he committed a misdemeanor in his presence, presumably because he struck Tate after the latter’s refusal to leave plaintiff’s property and under the theory that he was interfering with an officer in the performance of his duties. Neither ground is tenable under the facts. Tate’s actions convicted him of aggression rather than the plaintiff, and Tate was not acting in the performance of his duties as specified by the law, therefore, the plaintiff was not interfering with an officer in the performance of his duties.

As to the other two officers, we believe that they were innocent victims of Agent Tate’s ill feeling toward the plaintiff. One of these officers did not know of any ill feeling, while the other had heard of it. They were younger officers, that is, did not have the length of service which Tate had enjoyed, and from the record we are convinced that because of this fact they were acting according to Tate’s wishes and orders, and they entered plaintiff’s property without any malice or ill feeling toward the plaintiff but merely as they thought, to pay a visit. The altercation arose so swiftly that they had no time to leave. In fact, they were not ordered to leave and, as previously stated, plaintiff said that he would not have ordered them to leave. Therefore, we do not believe that they were guilty of trespass so as to render them liable for any damages on this score. Rozas and Doucet tried to prevent the disturbance and pleaded with Tate to stop. They at no time told the plaintiff that he was under arrest. Caught in the situation as they were they did drive Tate back in the car and followed the plaintiff to the court house. They made no charges and took no further action against plaintiff and we believe that even though technically guilty of trespass and false imprisonment, in its strictest sense, that plaintiff suffered no damages as the result of their presence. For that reason we believe the verdict of the jury awarding damages against agents Doucet and Rozas was erroneous.

On the question of damages for the laceration of plaintiff’s forehead, the permanent scar, pain, suffering, mental anguish, humiliation and embarrassment, and for malicious prosecution, the evidence reveals that plaintiff suffered a cut in the forehead that necessitated approximately three stitches; that he bled profusely but that the permanent scar is very minor. It is further shown that plaintiff was a man of high standing in the parish of St. Landry, having occupied the position of representative and sheriff for many years and evidently did suffer quite a bit of mental anguish as a result of what he felt to be an absolutely unjust invasion of his rights and was bound to have been humiliated and embarrassed in front of his business acquaintances, friends, and guest9 by Tate’s behavior. As to the acceleration of an existent disease, the record shows that the plaintiff was suffering from a disease which was progressive, and while there is some testimony from plaintiff’s doctor that the occurrence is bound to have affected the disease, at least temporarily, or to have made the plaintiff more nervous, we not believe that the evidence would justify a finding of a permanent aggravation or an acceleration due entirely to the occurrence.

As to the quantum we believe that the jury considered agent Tate’s financial ability in the award made by them, however, we feel that $2,000 would be in line with Tate’s financial ability for the various damages suffered by plaintiff.

It is therefore ordered, adjudged and decreed that the verdict of the jury and judgment of the court be annulled and reversed insofar as agents Rozas and Doucet are concerned, and plaintiff’s suit dismissed as to them.

It is further ordered, adjudged and decreed that the verdict of the jury and judgment of the lower court in favor of the plaintiff and against Honoré Tate be amended by fixing the amount due plaintiff at $2,000 to cover all damages and as thus amended affirmed, the defendant Honoré Tate to pay all costs of this proceeding.


author: TATE, Judge.

text:
    Ernest CORMIER, Plaintiff-Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Defendants-Appellees.
    No. 4409.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.

      Babineaux & Huval, Lafayette, for appellant.
    Garland, Dejean & LaHaye, Opelousas, for appellee Raoul Credeur.
    Edgar G. Mouton, Lafayette, for remaining appellees.
   TATE, Judge.

Shortly after dusk on February 13,1955, a 1949 Ford car owned by Aaron Castille and driven by his brother Carroll Castille struck Ernest Cormier’s tractor. As a result of this accident, two suits were filed: The present is by Cormier principally against the Southern Farm Bureau Casualty Insurance Company, the liability insurer of the Castille car. Subsequently this company as collision insurer of the Castille car (joined by its insured for the unsubrogated portion of the property damage) filed suit against Cormier for the property damage sustained by the Castille car, this second suit being reported at La.App., 94 So.2d 904. Made co-defendant in both suits was Raoul Credeur, the owner and operator of a car which immediately prior to the accident had been pulled from a ditch by Cormier’s tractor.

The District Court absolved Credeur of any actionable negligence and found that the collision had been caused by the joint negligence of both Cormier and Carroll Castille. Recovery was therefore denied in both suits.

The place of the accident was the grav-elled rural Louisiana Highway 528 three miles from Scott in Lafayette Parish. This highway is 18' in width, sloping directly into a ditch, without shoulders. The highway runs north-south in direction. The highway is straight and level and unobstructed for approximately miles south of the place of the accident. Visibility was unobstructed by dust or otherwise at the time.

From the virtually uncontradicted testimony, the District Court found the following facts:

Sometime prior to the accident Credeur had gone into the ditch and, shortly before the accident, had been pulled therefrom by Cormier’s tractor.

Credeur’s car, heading north, was pulled from its right (the east) ditch by Cormier’s tractor, the latter headed in a southerly direction. The tractor lights were lit throughout. Credeur’s head and tail lights were put on when his car was pulled back onto the road. A bystander, Miller, unhooked the chain by which the car had been dragged from the ditch, and Credeur then drew up northward approximately 30', headed north. Plaintiff Cormier then drove his tractor from the east lane of the highway onto the west lane, reserved for southbound traffic such as himself, and had before the accident drawn up at an angle (pointing southwesterly) with his right wheel touching the west ditch, his tractor entirely out of the east lane.

It was at that time that Miller yelled to Cormier to watch out for the Castille car, which Miller estimated to be 30CK distant and approaching in the east lane at 60 mph. Cormier immediately jumped from the tractor, sustaining a back strain, while Miller flagged the oncoming Castille car, then himself got off the road when he saw the Cas-tille car swerving and zigzagging across the road toward the tractor after Castille’s brakes were applied about 100/ before the impact. Castille’s car collided with the left front wheel of the tractor, pushing the latter vehicle into the ditch.

The Credeur car had been dragged from the ditch approximately one minute before the collision.

Carroll Castille, the driver of defendant’s automobile, admitted to a speed of approximately 50 mph before the accident and that he saw the tail lights of the Credeur car as he approached. He testified that he did not see the tractor lights due to their angle heading toward the field on his left-hand side of the highway, but the effect of this testimony is somewhat lessened by the allegation in Southern Farm’s petition (Article 5) that prior to the accident Castille “became aware of the lights of the tractor of Ernest Comeaux Cormier entering his lane of traffic” and thereupon he veered into the opposing lane of traffic; as well as by the positive testimony that the tractor lights were lit.

As the District Court found, under the circumstances of this case, Credeur’s action in having his car stopped on the trav-elled portion of the highway in Castille’s lane was not negligence which was a proximate cause of the accident. The uncontra-dicted testimony (even of Castille) was that the tail lights were lit and visible to traffic approaching from the rear. Further, in the absence of shoulders, there was no other place Credeur could have parked the car temporarily after its removal from the ditch. Thus the sole proximate cause of an accident ensuing between the temporarily stopped Credeur vehicle and the oncoming Cas-tille car would be the heedlessness and lack of lookout and control of Castille. Beard v. A. R. Blossman, Inc., La.App. 1 Cir., 94 So.2d 87, August v. Delta Fire & Cas. Co., La.App. 1 Cir., 79 So.2d 114; Mellow Joy Coffee Co. v. Continental Cas. Co., La.App. 1 Cir., 63 So.2d 888. Credeur is, as the District Court found, free of negligence which constituted a proximate cause of this accident.

The present situation is differentiated from such cases as Vowell v. Manufacturers Cas. Ins. Co., 229 La. 798, 86 So.2d 909, and Dodge v. Bituminous Cas. Corp., 214 La. 1031, 39 So.2d 720 (relied upon by Castille’s insurer), where the parked vehicles were left unlit and so as to create a hazard upon the highway under circumstances where reasonably prudent oncoming drivers might be expected to fail to perceive the dangerous obstacle in their path.

Finding that Cormier on his tractor saw the Castille car approaching from the north just after having pulled the Credeur car from the ditch, and that Cormier had then moved his tractor to the west side of the road facing southwest, the District Court felt that in thus stopping his tractor in the immediate vicinity of the stopped Credeur car (which had moved approximately 30' north of him) with knowledge that a car was approaching, Cormier knew or should have known of the impending danger and was therefore guilty of contributory negligence so as to bar his own recovery. We think in this respect the able District Court fell into error, for we do not believe that plaintiff Cormier was under any duty to expect the oncoming motorist to be so deficient in lookout and control as was CastiUe as to cross over and strike Cormier on the latter’s own side of the highway. Cf., August v. Delta Fire & Cas. Co., La. App. 1 Cir., 79 So.2d 114.

Further, it does not appear that called to the attention of the able trial court was the legal doctrine that “The fact that a collision occurs while a vehicle is being driven on the wrong side of the road places the burden on the driver of such vehicle to show that the accident was not caused by his negligence in driving his vehicle on the wrong side of the highway,” Miller v. Hayes, La.App. 1 Cir., 29 So.2d 396, at page 398. Our Supreme Court has recently very strongly reiterated and reaffirmed this rule, Noland v. Liberty Mutual Ins. Co., La., 94 So.2d 671, and Mershon v. Cutrer, La., 95 So.2d 143.

We do not believe that Castille has satisfied the burden placed upon him to prove that his own negligence did not cause this accident which happened when his vehicle struck Cormier’s in the latter’s lane and on Castille’s wrong side of the highway.

Thus we find that the sole proximate cause of the accident was Castille’s failure to observe the lighted car in his path in time to slow or to stop, or his failure to slacken his speed and maintain such control of his car as to be able to slow or to stop, in time to avoid the collision.

As to quantum:

Special damages are stipulated at $148.69 ($121.69, tractor repairs; $15, doctor and medicine; $12, extra help).

Plaintiff Cormier sustained a moderate lower back strain, with some muscle spasm but no swelling or bruise, requiring three visits to his physician. The painful condition was completely cured without permanent residual in approximately twelve days. We think an award for these personal injuries of $350 to be in line with awards for temporary injuries in the following cases: Lawton v. Anthony, La.App. 2 Cir., 92 So.2d 747; Palmer v. Fidelity & Cas. Co., La.App. 1 Cir., 91 So.2d 77; Rhymes v. Guidry, La.App. 1 Cir., 84 So.2d 634; Anderson v. Morgan City Canning Co., La.App. Orleans, 73 So.2d 196.

For the above and foregoing reasons, the judgment of the District Court is affirmed insofar as it dismissed plaintiff’s suit against Raoul Credeur, but is amended so as to award judgment in favor of plaintiff, Ernest Cormier, and against the co-defendant, Southern Farm Bureau Casualty Insurance Company in the sum of $498.69, together with legal interest from date of judicial demand until paid; all costs of these proceedings to be assessed against the defendant cast.

Affirmed in part; reversed in part.


text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Plaintiffs-Appellants, v. Ernest CORMIER et al., Defendants-Appellees.
    No. 4410.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.

      Edgar G. Mouton, Lafayette, for appellants.
    Garland, Dejean & LaHaye, Opelousas, Babineaux & Huval, Lafayette, for appel-lees.
   TATE, Judge.

This is a companion suit to Cormier v. Southern Farm Bureau Casualty Insurance Co., La.App., 94 So.2d 901. The collision insurer of the vehicle driven by Carroll Castille, joined by the vehicle’s owner, seeks herein to recover the property damage sustained by the Castille vehicle when it collided with the tractor owned by Ernest Cormier.

For the reasons fully stated in the companion case, the sole proximate cause of the accident was the negligence of Carroll Castille; and, accordingly, the District Court’s judgment denying recovery to plaintiffs is correct and must be affirmed.

Affirmed.


author: REGAN, Judge.

text:
    Drucilla ARNOLD v. TOYE BROS. YELLOW CAB COMPANY.
    No. 20916.
    Court of Appeal of Louisiana. Orleans.
    May 13, 1957.
    Charles E. Deichman, New Orleans, for plaintiff and appellee.
    Deutsch, Kerrigan & Stiles, Christopher Tompkins, New Orleans, for defendant and appellant.
   REGAN, Judge.

Plaintiff, Mrs. Drueilla Arnold, the owner and operator of a Ford Automobile, instituted this suit against the defendant, Toye Bros. Yellow Cab Company, endeavoring to recover the sum of $148 representing property damage incurred to her vehicle on March 14, 1956, at 11:15 p. m., when the right front door of defendant’s parked taxicab was thrown open by a' passenger into the center traffic lane of Bourbon Street, causing the left rear side of plaintiff’s passing automobile to be damaged as a result thereof.

Defendant, in conformity with the practice of the First City Court of New Orleans, simultaneously pleaded the exceptions of “no right or cause of action” and answered denying that it was guilty of any negligence in the premises, and asserted that the independent negligence of the passenger was the proximate cause of the accident.

From a judgment in favor of plaintiff, defendant has prosecuted this appeal.

The record reveals that defendant’s taxicab had parked parallel to the left curb of 219 Bourbon Street preparatory to discharging two passengers , who occupied the right side of the front seat. Plaintiff accompanied by Miss Elsie Fournet, was driving about ten miles per hour in Bourbon Street and when approximately two-thirds of he,r car had passed the taxicab one of the passengers in the right front seat unexpectedly threw open the right front door into the center traffic lane of Bourbon Street and struck the left rear side of plaintiff’s automobile causing the damage which provoked this litigation. When plaintiff felt the impact she immediately stopped and then noticed that the door of the cab was “jammed” into the rear of her car. The operator of the cab appeared and requested plaintiff to move her car in order to permit the two passengers to get out of the right front seat. The vehicle was then moved and the two male passengers left the cab and, in the words of defendant’s witnesses, disappeared into a nightclub designated by the municipal No. 219 Bourbon Street.

Plaintiff contends that the operator of the defendant’s taxicab was negligent in failing to provide a safe place to discharge the passengers and in permitting the occupancy of the front seat by passengers when seats were available in the rear compartment; that both of these acts of commission were in contravention of Sections 28(e) and (1) of Ordinance No. 16,605, C.C.S. and that there exists a causal connection between the violation thereof and the resulting accident.

Defendant, on the other hand, conceded that it was at least imprudent to open the. door of the cab into the heavily trafficked lane of Bourbon Street, but asserts that this negligence was the independent act of the passenger who ignored the admonition of the operator of the cab not to open the door.

The violation of an ordinance is of no importance in the final analysis of a tort action unless there is a causal connection between its violation and the resulting accident. In the instant case we believe there is a definite and clearcut causal connection between the violation of the aforementioned ordinance and the resulting accident.

Section 28(e) in substance provides:

“Every taxicab * * * shall be operated * * * with due regard for the safety * * * of passengers and * * * for the safety of the general public.”

Section 28(Z) provides that:

“No person shall be permitted in the front compartment with the driver as long as there is available passenger space in the rear compartment.”

The record conclusively establishes the fact that John W. Murphy, the operator of the cab, in parking parallel to the left curb of heavily trafficked Bourbon Street at 11:15 P.M. at night preparatory to discharging two passengers, who occupied the right front seat thereof, in the center traffic lane of this Street, was actively violating both sections of the foregoing ordinance in that he was ignoring the safety of his passengers and the general public and was permitting passengers to occupy the front seat of the taxicab when the rear seats were unoccupied. Murphy, as a reasonable man, could or should have anticipated that his front seat passengers would adopt the most accessible exit from the cab and alight in the street rather than on the sidewalk since the steering mechanism posed a formidable impediment from the cab to the sidewalk. If the operator of the cab had simply observed the beneficent provisions of the foregoing ordinance he would have pursued the simple expedient of parking on the .right side of Bourbon Street in order that the passengers occupying the right front seat could be discharged with safety to themselves and to the general public. Certainly Murphy was or should have been fully cognizant of the hazard to the motoring public which he created when he placed his passengers in the right front seat and parked his cab in a position where those passengers, in order to alight therefrom, would feel compelled to open the door in the very center of heavily trafficked Bourbon Street. The fact that the passenger, who actually opened the door of the cab, may have been concurrently negligent does not absolve the operator of his negligence in parking the cab as he did in view of the manner in which the passengers were seated.

Miss Fournet, plaintiff’s guest passenger, testified that she observed the two passengers in the front seat of the cab immediately after the occurrence of the accident and they were “drunk.” This evidence stands uncontradicted in the record.

Murphy testified that he had picked up the passengers at the My-O-My Club at West End and was discharging them at another nightclub in Bourbon Street when the accident occurred. The operator of the cab certainly must have acquired this same knowledge during the course of such a long intimate trip and, therefore, the duty imposed upon him of properly seating and of carefully discharging his passengers in a place where the door of the vehicle could be opened with safety to the general motoring public was even greater than if he had not possessed this special knowledge of the condition of his passengers.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

JANVIER, J., absent, takes no part.

      . The cost of repairing the damages was stipulated by counsel.

      . A one way street permitting traffic to move away from Canal Street and in the general direction of Esplanade Avenue.

      . Defendant insists that five passengers occupied the cab, three in the rear seat thereof and two in the right front seat. We have found as a fact that only two passengers were occupants of the cab and they were seated on the right side of the front seat. Defendant if it had desired could have established this fact beyond dispute by the simple introduction into evidence of the cab’s “trip sheet” which would have reflected the number of passengers, the place picked up and discharged, and the time thereof. Defendant’s only explanation for its failure to produce this evidence was “I haven’t got it here.”

      . A safe place for both the passengers and the general motoring public.

      . O.O.S. 16,605, Section 28(e): “Every taxicab, for-hire car or other public passenger motor vehicle shall be operated in accordance with the laws of the State and the ordinances of this City, and with due regard for the safety, comfort and convenience of passengers and for the safe and careful transportation of property and for the safety of the general public.” (1) : “No person shall be permitted in the front compartment with the driver as long as there is available passenger space in the rear compartment.”

      . The operator of the cab made this statement during the course of the trial and it was never verified. We were not impressed with his testimony and, therefore, believed that it required verification.

      . Todd v. New Amsterdam Casualty Co., La.App.1951, 52 So.2d 880.


text:
    ALLEN B. CAMBRE LUMBER AND SUPPLY COMPANY, Inc. v. Dr. Lyon K. LOOMIS.
    No. 20891.
    Court of Appeal of Louisiana. Orleans.
    May 13, 1957.
    Grady C. Durham, New Orleans, for defendant appellant.
    Ernest J. Robin, New Orleans, for plaintiff appellee.
   REGAN, Judge.

Plaintiff, Allen B. Cambre Lumber and Supply Company, Inc., a materialman, instituted this suit against Dr. Lyon K. Loomis, the owner of property designated by the municipal No. 116 S. Jefferson Davis Parkway, endeavoring to have its lien and privilege recognized against the above property and to recover a personal judgment for the sum of $365.85, representing the cost of building materials sold and delivered to the foregoing address and used therein by the defendant’s contractor, Frank X. Lagasse, who had been employed to remodel and repair the property.

Defendant answered and admitted that he had entered into an oral contract with Lagasse to repair and remodel the property, but insisted that while Lagasse may have obtained the materials from the plaintiff they were not delivered to the premises nor used by him in the repair or remodel-ling thereof.

From a judgment in favor of plaintiff in the amount of $252.76 defendant has prosecuted this appeal. Plaintiff has answered the appeal requesting that the judgment be increased to the sum of $365.85, the amount initially prayed for.

The facts are relatively simple. Defendant orally employed Lagasse to repair and remodel the premises designated as 116 S. Jefferson Davis Parkway. The contract was not recorded and no bond was given by the contractor to protect the materialman. Plaintiff’s president, Allen B. Cambre, testified that all of the lumber and other materials were loaded on its trucks, billed to the job and delivered to 116 S. Jefferson Davis Parkway, which property was owned by the defendant; that signed dray receipts were secured from the contractor for each of the six deliveries with the exception of two thereof and these receipts reflected by virtue of a notation made thereon by the operator of the truck, that the materials were placed in the yard or garage adjacent to the premises.

The contractor testified unequivocally that all of the materials herein sued upon were actually delivered to the job site and were actually used by him in the repairing and remodeling of defendant’s building, including the materials represented by the unsigned dray receipts. He testified that these materials were delivered to the job site during his absence and some one on the premises instructed that they be placed in the yard or garage.

The defendant offered no pertinent evidence other than his own testimony to dispute the fact that the materials were delivered to and used in the repair and remodeling of his premises.

Defendant contends that the plaintiff has not sufficiently proved that the materials were delivered to and used by the contractor in the repair and remodeling of his premises.

Plaintiff, on the other hand, contends that he has not only proved delivery to the premises, but that the materials were actually used in the repair thereof.

We have carefully evaluated all of the evidence appearing in the record and are convinced that the contractor ordered the materials and the plaintiff furnished them to him. The materials were billed to the defendant’s premises. It is only encumbent upon the plaintiff, therefore, to show that the materials were delivered to the premises. Four of the six invoices are signed by the contractor indicating that the materials were delivered to the premises and accepted. With respect to the two invoices that were not signed by the contractor, he has satisfactorily explained the reason therefor in asserting that these materials were delivered during his absence, but he was positive that they were used in the repair or remodeling of the premises and, in this instance, we believe that the trial judge was in error in not permitting the plaintiff to recover the respective amounts reflected by these two invoices.

Defendant, as we said hereinabove offered no pertinent evidence other than his own testimony to show that the materials were not delivered or used in the repair of his premises.

The pertinent portion of LSA-R.S. 9:4812 reads:

“When the owner, or his authorized agent, undertakes the work or construction, improvement, repair, erection, or reconstruction, for the account of the owner, for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required, then any person furnishing service or materials or performing any labor on the said building * * may record * * * a copy of his estimate or an affidavit of his claim * * * which recordation, if done within sixty days after the date of the last delivery of all material upon the said property or the last perform-anee of all services or labor upon the same, by the said furnisher of material or the said laborer, shall create a privilege upon the building * * *. Any person furnishing service or material or performing any labor on the said building or other work to or for a contractor or subcontractor, when a contract, oral or written has been entered into, but no contract has been timely recorded, shall have a personal right of action against the owner for the amount of his claim for a period of one year from the filing of his claim * *

In the case of Hortman-Salem Company v. Raymond we said that “proof of delivery on the premises is all that can be required” and that the burden is then placed on the owner to show that the materials were not actually used. We reasoned that as between two innocent parties, one of whom must suffer loss, he who could more easily have protected himself, should be called upon to bear that loss and since the owner did not require a bond from the contractor he must be made to suffer the consequences of his indiscretion.

For the reasons assigned the judgment appealed from is amended by increasing the amount thereof from the sum of $252.-76 tó the sum of $365.85 and, as thus amended, it is affirmed.

Amended and affirmed.

      . The trial court permitted plaintiff to recover for all materials sold and delivered to the defendant’s premises with the exception of the material reflected by the two receipts which were unsigned by the contractor. These dray receipts amounted to the combined sum of $113.09.

      . Defendant, through M. A. Constantine, did endeavor to draw the incredible inference that since Lagasse was erecting “shelves in a drugstore” at about the same time that Lagasse was employed by the defendant, that some of the materials were diverted to this other job.

      . 1930, 13 La.App. 490, 127 So. 452, 454. See also Laney Company, Inc., v. Airline Apartments, Inc., 1953, 223 La. 1000, 67 So.2d 570.


author: TERRI F. LOVE, Judge.

text:
    Surilla OTT and Gwendolyn Barze v. FAMILIES HELPING FAMILIES OF GREATER NEW ORLEANS, A Non-Profit Corporation, and Children’s Special Health Services, Office of Public Health, Louisiana Department of Health and Hospitals.
    No. 2005-CA-1324.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 16, 2006.

      Paula Perrone, Chehardy, Sherman, Ellis, Breslin, Murray, Recile & Griffith, L.L.P., Metairie, LA, for Surilla Ott and Gwendolyn Barze.
    Michael T. Tusa, Jr., André J. Lagarde, McCranie Sistrunk Anzelmo Hardy Maxwell & McDaniel, Metairie, LA, for Families Helping Families.
    Charles C. Foti, Jr., Attorney General, Micheál L. Penn, Assistant Attorney General, LA Department of Justice, Litigation Division, Baton Rouge, LA, for Children’s Special Health Services, Office of Public Health, Louisiana Department of Health and Hospitals.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   TERRI F. LOVE, Judge.

| iThis appeal arises from the termination of Surilla Ott’s and Gwendolyn Barze’s employment from Families Helping Families located in Children’s Hospital. Ms. Ott and Ms. Barze aver that the termination of their employment was an act of employment discrimination based upon their African-American race and that they were defamed in the process.

Ms. Ott and Ms. Barze filed a Petition for Damages seeking all damages reasonable and allowable under Louisiana law, including but not limited to all claims of defamation, back pay, benefits, reinstatement, reasonable attorney’s fees, and court costs. Families Helping Families filed a Motion for Summary Judgment for their dismissal as a party to the lawsuit, with prejudice, for lack of a genuine issue of material fact. Children’s Special Health Services, Office of Public Health, Louisiana Department of Health and Hospitals, also filed a Motion for Summary Judgment. The trial court found that no genuine issues of material fact existed regarding employment discrimination in the dispute, granted a summary judgment, and dismissed the defamation claim. Ms. Ott and Ms. Barze concede the dismissal of the claim for defamation and appeal the grant of the Summary Judgment | Regarding employment discrimination. We find that the trial court did not err in granting summary judgment and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In July 1997, Families Helping Families (“FHF”) administered a program at Children’s Hospital under a contract with the State of Louisiana. FHF employed the plaintiffs-appellants, Surilla Ott (“Ms. Ott”) and Gwendolyn Barze (“Ms. Barze”) as parent liaisons from July 1, 1997 to January 18, 2001. On January 18, 2001, Ms. Ott and Ms. Barze were terminated from their employment with FHF for falsification of records and dishonesty. The termination was based on the recommendation of Children’s Hospital employee Denise Williams (“Ms. Williams”). Ms. Williams, a Social Worker Supervisor and first-line supervisor for Ms. Ott and Ms. Barze, conducted an investigation into a Christmas toy program managed by Ms. Ott and Ms. Barze. According to Ms. Williams, she received complaints from social workers and other hospital staff about the operation of the program and possible misuse of donations.

The Christmas toy program collected donated toys to distribute to financially disadvantaged children receiving care within the hospital. The donations were distributed based on annually compiled lists of children receiving services at Children’s Hospital. During the investigation, Ms. Williams asked Ms. Ott and Ms. Barze to submit the lists of the children to receive toys. Ms. Williams reviewed the two lists and noted that some of the children were not patients receiving care at the hospital. Ms. Barze was asked to identify the children and stated that the children were from her church.

Ms. Williams also inquired about two donations from two separate Wal-Mart stores. The first inquiry involved a $500 donation for which Ms. Williams 13requested a receipt for the purchases made with the donation. Ms. Barze was not initially forthcoming with the receipt, but eventually submitted copies. The second inquiry involved the $300 donation from a different Wal-Mart location. Ms. Williams requested a receipt for the purchase and a list of the children who received the gifts. Ms. Barze and Ms. Ott explained to Ms. Williams that they did not receive a receipt from Wal-Mart because they did not actually purchase toys with the tender. The donation allowed the parent liaisons to enter the Wal-Mart store and choose $300 worth of merchandise to be donated to the program. Upon completion of the “shopping,” the ladies were escorted out of the store without a receipt. After the parent liaisons did not produce a receipt, Ms. Williams contacted the Wal-Mart store and the receipt was faxed. Ms. Williams requested a list of the children that received toys from the $300 donation. Ms. Barze gave Ms. Williams the list. Ms. Williams examined the list and found that none of the children on the list were patients from Children’s Special Health Services.

After investigating, Ms. Williams determined that neither Ms. Ott nor Ms. Barze were forthcoming with information and receipts about the program; neither Ms. Ott nor Ms. Barze could explain which children received gifts purchased with a $300 donation from Wal-Mart; some of the donated gifts were given to children who were not receiving medical care in the hospital, such as children from Ms. Ott’s and/or Ms. Barze’s churches; and Ms. Ott and Ms. Barze’s children were receiving gifts. Upon completion of her investigation, Ms. Williams advised the FHF Executive Director, Rose Gilbert, to terminate Ms. Ott’s and Ms. Barze’s employment. On January 18, 2001, Ms. Ott and Ms. Barze were terminated in separate meetings attended by Ms. Williams and Ms. Gilbert.

|4In November 2001, Ms. Ott and Ms. Barze filed a petition for damages against FHF of Greater New Orleans, and Children’s Special Health Services, Office of Public Health, Louisiana Department of Health and Hospitals. Ms. Ott and Ms. Barze asserted they were terminated based on their race, African-American, and defamation of character. The trial court found that there were no genuine issues of material fact regarding employment discrimination and granted defendant’s Motion for Summary Judgment. The defamation claim was dismissed. Ms. Ott and Ms. Barze concede the dismissal of the claim for defamation and appeal the grant of Summary Judgment.

ASSIGNMENT OF ERROR

Ms. Ott and Ms. Barze assert that the trial court erred in finding that there were no material issues of fact regarding the employment discrimination claim.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991); Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181 and 99-2257, p. 7 (La.2/29/00); 755 So.2d 226, 230. A motion for summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The burden of proof remains with the mover to show that no genuine issue of material fact exists. “However, if the mover will not bear the burden of proof at trial,” his burden on the motion “does not require him to negate all essential elements of the adverse party’s claim,” but rather to demonstrate an |s“absence of factual support for one or more elements essential to the adverse party’s claim.” La. C.C.P. art. 966(C)(2). “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

APPLICABLE LAW: LA. R.S. 23:301

“[MJaterial facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute.” Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir.1992). This Court defined a fact as being material “if it is essential to a plaintiffs cause of action under the applicable theory of recovery and without which plaintiff could not prevail,” a prima facie case. Clark-Taylor v. City of New Orleans, 04-0511, p. 6 (La.App. 4 Cir. 12/01/04); 891 So.2d 22, 25.

The Louisiana anti-discrimination statute, La. R.S. 23:301 et seq., is “similar in scope to the federal anti-discrimination prohibitions in Title VII of the Civil Rights Act of 1964;” “Louisiana courts have routinely looked to the federal jurisprudence for guidance in determining whether a claim has been asserted.” Plummer v. Marriott Corp., 94-2025 (La.App 4 Cir. 4/26/95); 654 So.2d 843, 848. The scheme of proof under federal jurisprudence requires the plaintiff to first establish by a preponderance of the evidence a prima facie case of racial discrimination. Duplessis v. Warren Petroleum, Inc., 95-1794 (La.App. 4 Cir. 3/27/96); 672 So.2d 1019, 1022. A prima facie case of employment discrimination includes proof that the plaintiff: (1) belongs to a protected group; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) was replaced by someone outside of the protected group. Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir.2002), citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If a prima facie case is established, a presumption is created that the employer unlawfully discriminated against the employee. Price, 283 F.3d at 720. The burden then shifts to the defendant/mover to produce evidence that no genuine issue of material fact exists by demonstrating an absence of factual support for one or more elements to the plaintiffs claim. La. C.C.P. art 966(C)(2). In cases involving a work-related rule violation, the plaintiff may establish a prima facie case by showing “either that he did not violate the rule or that, if he did,” employees, of a different race, “who engaged in similar acts were not punished similarly.” Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.1980).

ESTABLISHMENT OF A PRIMA FACIE CASE

Analyzing Ms. Ott’s and Ms. Barze’s termination under the four-prong test does not establish a prima facie case for employment discrimination. Both Ms. Ott and Ms. Barze are members of a protected class, .African-American, and were discharged from employment for which they were qualified; however, they were not replaced by someone outside of the protected group. Under this analysis, a prima facie case is not established, and there is not a genuine issue of material fact.

Ms. Ott and Ms. Barze aver that they established a prima facie case based on the fact that they did not violate any work-related rules and if they did, Caucasian employees engaged in similar acts were not similarly punished. In support of this argument, Ms. Ott and Ms. Barze submitted the affidavit of Germaine Thompson, FHF Parent-Liaison, asserting that no restrictions existed on what parties received the donated gifts, and that white employees used the donated gifts inappropriately without similar disciplinary action. Ms. Ott and Ms. Barze did not present 17evidence other than the before mentioned affidavit and their own depositions as proof that white employees were treated differently.

A prima facie case exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Therefore, if the evidence is not significantly probative, the summary judgment is appropriate. Id. at 249-50, 106 S.Ct. 2505. The record taken as a whole could not lead a rational trier of fact to find for the non-moving party.

Furthermore, assuming ar-guendo that the depositions and affidavits are sufficient to establish white employees were in fact treated differently, a presumption is created that the employer unlawfully discriminated against the employee, and the defendants assume the burden of articulating a non-discriminating reason for the adverse action. FHF insisted that there was no racial motivation in its decision to terminate Ms. Ott’s and Ms. Barze’s employment. They contend that the decision was based solely on its conclusion, following an investigation, that Ms. Ott and Ms. Barze were dishonest and falsified records. This assertion of a legitimate nondiscriminatory reason for termination discharged the defendants’ burden of proof, and the burden shifted to Ms. Ott and Ms. Barze to prove that FHF proffered reason is merely a pretext for discrimination. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.1995). Ms. Ott and Ms. Barze did not attempt to overcome the FHF nondiscriminatory reason, but instead reasserted their evidence. They failed to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial.

| ^DECREE

We conclude, as a matter of law, no genuine issue of material fact exists.

AFFIRMED.

MURRAY, J., concurs in the result.


author: DAVID S. GORBATY, Judge. CANNIZZARO, J.,

text:
    S.Z.S. CONSULTANTS, INC. v. Jim HOWARD and Lifetown Homes, Inc.
    No. 2005-CA-1507.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 16, 2006.

      Dan A. Smetherman, New Orleans, LA, for Plaintiff/Appellee.

      Roderick Christopher Patrick, Patrick & Associates, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO JR.).
   DAVID S. GORBATY, Judge.

|TIn this appeal, Jim Howard (“Howard”) and Lifetime Homes, Inc. (“Lifetime”) contend that the trial court erred in rendering judgment in favor of SZS Consultants, Inc. (“SZS”) in the amount of $29,190.11 with attorneys’ fees of $11,275.00, plus costs and interest. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

From January 1, 1996 through October 25, 2001, SZS performed surveying, engineering and other services for Lifetime. The parties’ arrangement was pursuant to an oral agreement on an open account basis. No written agreement ever existed. The majority of the work performed by SZS in this matter was for the design and development of two (2) subdivisions in Eastern New Orleans, namely Morrison Oaks and Villa Del Ray. These subdivisions were to be built on land owned by Panama Jax, Inc., a corporation owned by Howard and his immediate family.

For its work, SZS forwarded bills to the defendants in a total amount of $55,310.11. Lifetime and Howard paid SZS $ 21,-920.00, either by Lifetime’s check or in cash from Howard. Lifetime and Howard further directly paid Mr. Leo |2I-Iastman, an independent contractor engaged by SZS for these projects, an amount of $4,200.00. The total amounts paid therefore were $26,120.00.

Neither the amount billed nor the amount paid was contested by Lifetime/ Howard until after suit was filed. The amounts received by SZS and Hastman were applied to the outstanding balance owed by Lifetime. Copies of all statements forwarded to Lifetime were introduced at trial, as was a recap of Lifetime’s account. Howard admitted that the money was owed in a letter signed by him on March 1, 2001. This admission is very significant, and undercuts Howard’s entire defense.

When the Lifetime account became significantly in arrears, Sam Scandaliato of SZS met with Howard. Scandaliato testified that at that time, Howard paid $1,000.00 and agreed to pay $25,000.00 on the account within one week. The $25,000.00 was never paid. On February 15, 2002, SZS’s attorney forwarded a demand letter via certified mail to Howard individually and as agent for service of process for Lifetime. This letter was returned as unclaimed. An identical, contemporaneous letter was sent via first class mail to Howard and Lifetime. This letter was certified by the U.S. Post Office as being mailed. No response was received.

On March 27, 2002, SZS filed suit for the unpaid balance of the open account. Lifetime and Howard filed an exception of prescription, which was granted by the trial court. After the trial on the exception of prescription, Lifetime and Howard filed a reconventional demand against SZS and filed a third party demand against Sam Scandaliato. After a bench trial, the court rendered judgment in favor of SZS in the amount of $29,190.11 with attorneys’ fees of $11,275.00, Uplus costs and interest. Lifetime and Howard filed a Motion for New Trial, which was denied. This appeal followed.

DISCUSSION

In their first assignment of error, Lifetime and Howard assert that the trial court erred in finding that Jim Howard was personally liable absent any evidence relating to piercing the corporate veil.

At trial, Howard testified that the land upon which the two subdivisions were located was owned by Panama Jax. There was no written agreement between Panama Jax and Lifetime. When pressed for the existence of a contract, Howard stated that it was not necessary to have a contract because he was on the board of both. It should also be noted that Mr. and Mrs. Howard and their daughter owned both corporations.

Further, the evidence showed that SZS performed other services before and after the work done for the Morrison Oaks and Villa Del Rey subdivisions for Howard and his family. Scandaliato testified that about one-third of the payments made by Howard were in cash, with the rest being made by check. During this entire period, Howard did not disclose that he was working on behalf of any particular corporation as all invoices and payments were between SZS and Howard/Lifetime.

To avoid personal liability to a third person, an agent has the burden of proving he contracted not individually but as an agent, disclosing his capacity and his principal’s identity to the other party. La. C.C. art. 3012 and 3013; Duckworth-Woods Tire Service, Inc. v. Smith & Johnson (Shipping), Inc., 430 So.2d 207 (La.App. 4 Cir.1983). Well-settled is the rule that one who claims he is acting in a | ¿corporate capacity has the duty to disclose that he is contracting as an agent of the corporation and not as an individual. In such cases, the burden of proof is placed on one claiming the agent relationship. Pat’s Furniture v. Furniture Warehouse, etc., 392 So.2d 145 (La.App. 4th Cir.1980).

The trial court found that “[cjlearly, the only individual involved in this action is Jim Howard. Lifetime and Panama Jax, Inc. are his alter egos as Mr. Howard did not and does not maintain the identities of his corporation separate from him ...” We agree. The evidence adduced at trial clearly demonstrated the nebulous relationship existing between Howard and his family-owned corporations. Additionally, despite his broad experience, neither he nor any of his corporations entered into a written agreement with SZS establishing the fact that he was acting on behalf of a particular corporation. There is no merit to this assignment of error.

Next, Lifetime and Howard argue that the trial judge erred in failing to give defendants credit for the $10,607.50, which it earlier held had prescribed.

When the defendants filed their exception of prescription, they pled the three-year prescriptive period applicable to an open account. The plaintiff in an action on an open account bears the burden of proving his cases by a preponderance of the evidence. Texas Industries, Inc. v. Roach, 426 So.2d 315 (La.App. 2 Cir.1983). Once a prima facie case has been established by a plaintiff-creditor in a suit on an open account, the burden shifts to the debtor to disprove the existence or correctness of the account. Cardinal Wholesale v. Rainbow Floor Covering, 432 So.2d 419 (La.App. 1 Cir.1983).

In the instant case, appellants never made payments for a specific activity. Howard made his serial payments in round amounts, which were applied by SZS to |sthe earliest amounts due on the account. The trial court considered the credit moot, as the evidence adduced at trial clearly demonstrated that payments received from Howard during the course of the projects were applied by SZS to the earliest amounts due. We find that this argument also lacks merit.

In their third assignment of error, Lifetime and Howard argue that the trial judge erred in admitting plaintiffs exhibits one, two, three, four and five.

Copies of SZS’s bench book containing these exhibits were allowed by the trial judge through the testimony of Mr. Scan-daliato on redirect examination. A copy of the bench book was provided to the court at the commencement of trial; a copy had been provided to Lifetime and Howard’s counsel at a prior hearing. The evidence in the bench book was prepared by counsel for SZS with the assistance of Mr. Scan-daliato and his staff. Scandaliato attested to this evidence in establishing the case for the appellee. In light of these facts, there is no merit to this assignment of error.

Next, Lifetime and Howard aver that the trial court erred in awarding attorneys’ fees in accordance with La. R.S. 9:2781, since plaintiff failed to prove that certified demand had been made on defendants, and failed to demand the “correct amount owed” as also required.

On February 15, 2002, counsel for SZS forwarded a demand letter to Howard and Lifetime at Howard’s personal address. Howard was the agent for service of process for Lifetime. At that time, counsel also forwarded the same demand letter via first class mail, which was verified by the U.S. Postal Service’s Certificate of Mailing. The certified letter was returned as unclaimed. The letter sent first class was never returned. Howard was served personally with a copy of | fiSZS’s petition on April 4, 2002. Lifetime was served through Howard as agent on April 2, 2002.

Under R.S. 9:2781, defendants are liable for attorneys’ fees in a suit on an open account. As described above, they were properly notified. Thus, we find no merit to this assignment of error.

Lifetime and Howard next assert that the trial judge was clearly wrong in awarding the plaintiff an additional payment of $29,190.12, when the evidence in the case was that Lifetime agreed to pay plaintiff on an hourly basis with a cap of $500.00 per lot.

At trial, the amount owed per lot was discussed. Howard testified, “I don’t know what the charges were at that time. Probably during those years, about $700.00.” Moreover, he stated that Mr. Scandaliato “... didn’t want to do it on a flat fee basis. He said he would do it based on an hourly basis, and he would not charge for his time ...” Based upon this information, we conclude that the trial judge’s award was proper.

In their sixth assignment of error, Lifetime and Howard argue that the trial court erred in finding that plaintiff properly completed the work for Lifetime, thereby entitling plaintiff to payment.

Both Morrison Oaks and Villa del Rey encountered problems that were solely within the ambit of appellants and had nothing to do with SZS. Mr. Hastman testified that Morrison Oaks could have been built except for “a very big legal problem that had very little to do with the actual subdivision of the lots.” He stated that the City Planning Commission required that a brick wall be erected and a land swap with the city was necessary to correct the problem. Mr. Hastman further testified that the Sewerage and Water Board would not sign the drawings |7for Villa del Rey unless a retaining wall was installed along the Dwyer Canal. “Mr. Howard said it was too expensive and he was not going to do it ... ” These problems had nothing to do with the surveys.

Mr. Donald Carr also testified that the problems delaying the projects were “Just the Homeowners’ Association over at Lake Carmel. And I can’t remember anything else. We were just constantly waiting on the City to see what they were going to do with the road, when they were going to put it in.”

Mr. Larry Mickal, a Civil Engineer employed by the Sewerage and Water Board, stated that none of the difficulties argued by Howard/ Lifetime were of major importance and could have been corrected. He stated that the prime objective of the Sewerage and Water Board was that such services be placed for accessibility and that variances were regularly made. He averred that the “green electrical box” on private property would not be a problem because it was clearly visible and would not require reconsideration.

In light of these facts, we find that the trial judge was correct in concluding that the problems encountered by Howard/ Lifetime were not caused by SZS, and find no merit to this assignment of error.

Next, Lifetime and Howard claim that the trial court was clearly wrong in finding that Lifetime was not entitled to recover $56,060.00 for the improper design of the utilities at the Morrison Oaks Subdivision.

As discussed above, Howard did nothing to address the problems that were. his responsibility. Appellant ordered the pouring of the concrete for the streets of Villa del Rey without arranging for an engineer for testing purposes. At the time of the pouring, Howard and Lifetime were substantially in arrears. Scandaliato testified that no one contacted him regarding the pouring. There was no other | ^witness nor was any evidence adduced that clearly demonstrated that Scandaliato knew anything about the pouring, or that he had any further obligation to perform any inspection or any other work. Appellants paved the street without proper preparation. Mr. Andre of Boh Brothers testified that the pouring without such planning resulted in significant additional costs to the project.

The $56,060.00 bill was submitted as an estimate by Boh Brothers to put in sewer, water line, and repave the street at Morrison Oaks. None of this work was the responsibility of the surveyor. Mr. Hastman testified that Howard agreed to be responsible for obtaining a servitude through the adjacent landowner’s property so that the utility line would not have to be placed in the street. However, he did not do so. Based upon these facts, we find no error in this ruling of the trial court.

In their last assignment of error, Lifetime and Howard assert that the trial judge was clearly wrong in refusing to allow defense counsel the opportunity to question witnesses on the true location of the Entergy lines at Morrison Oaks subdivision.

The trial judge permitted counsel for appellants to question virtually every witness on the location of the Entergy lines. He was admonished by the trial judge to stop asking the same question repeatedly. During the testimony of Mr. Mikel regarding the position of the utility lines, the trial judge said, “Hold on, you’ve done that with Mr. Scandaliato, you did it with Mr. Hast-man. I know how far away each thing is. Now don’t ask him a question about that. That’s what gets me annoyed, because I don’t wánt to go through each one and how far away it is. I’ve already figured it out.”

laThe trial judge allowed defense counsel great latitude in questioning witnesses about the true location of the Entergy lines at Morrison Oaks subdivision. As such, we deem this assignment of error meritless.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

CANNIZZARO, J., concurs with reasons.

CANNIZZARO, J.,

concurs with reasons.

hi concur in the result that was reached in this appeal, but I agree with the position of Jim Howard and Lifetime Homes, Inc. regarding the admissibility of Exhibits P-1 and P-2. Exhibit P-1 consisted of a U.S. Postal Service certified mail receipt and a U.S. Postal Service certificate of mailing evidencing the mailing of the demand letter to Mr. Howard and Lifetime Homes. Exhibit P-2 consisted of a demand letter, showing a certified mailing number, that was mailed by certified mail to Mr. Howard and Lifetime Homes and a cover letter that was used to mail the demand letter by regular mail. These exhibits were used to evidence that S.Z.S. Consultants, Inc. was entitled to attorney’s fees under La. R.S. 9:2781. Because there was no testimony at the trial referring to or identifying the exhibits, I do not think that they should have been admitted into evidence.

It is my opinion that this error is harmless, however, in light of the fact that La. R.S. 9:2781 provides that not only a demand letter but also citation and service |gof a petition can be used a basis for a claimant’s entitlement to reasonable attorney’s fees on an open account that is not paid within the time limits established by that statute. Thus, although I disagree with the conclusion of the majority regarding the admissibility of two of the trial exhibits, I concur in the result reached by the majority.

      . La. R.S. 9:2781 provides in relevant part:
      A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section.

      (Emphasis added.)