author: JONES, Judge.

text:
    OLINKRAFT, INCORPORATED, Plaintiff-Appellant, v. Robert Spencer ALLEN, Defendant-Appellee.
    No. 12909.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.

      Shotwell, Brown & Sperry by Edel F. Blanks, Jr., L. Michael Ashbrook, Monroe, for Olinkraft, Inc.
    James T. Spencer and James M. Dozier, Jr., Farmerville, for Robert Spencer Allen.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Olinkraft, Inc. filed this possessory action against Robert Spencer Allen and C. O. Brown on March 28, 1974, alleging that in May, 1973, the defendants had disturbed plaintiff’s possession of a part of its property located in Union Parish, Louisiana. That property is described as follows:

NE/4 of NW/4 lying North of the Creek; and all that part of the NW/4 of NW4 lying North of the Creek that runs through the South side of said forty, being all that part of said forty not owned by the Monroe Grocer Co., all in Section 26, TWP 23 North, Range 2 East, Union Parish, Louisiana.

Plaintiff complained that defendants disturbed its possession of a part of that tract by cutting and removing timber from the land.

C. O. Brown answered denying that he had cut any timber from the described property. Robert Spencer Allen answered admitting that he had cut and removed timber in May, 1973 but that these operations were conducted on the following property:

The NW/2 of NW/4, lying south of creek in Section 26, Twp. 23 North, Range 2 East, Union Parish, Louisiana.

Allen further asserted that plaintiff had not been in quiet and uninterrupted possession of the property in dispute for more than a year prior to the alleged disturbance. After a trial on the merits, judgment was rendered in favor of defendants rejecting the demands of plaintiff. Plaintiff appeals.

The evidence reveals that plaintiff had acquired title in 1967 of a tract of land north of the Creek that runs through the South side of said forty. Plaintiff’s vendor had acquired title to the tract in 1952.

Documents in evidence reveal that in May, 1971 title to all that property in the quarter lying South of Creek was passed to Pine Hill Wood Company, Inc. In August, 1972 Pine Hill Wood Company, Inc. conveyed all its interest in the property to C. O. Brown, who in that same month conveyed the property to defendant Allen.

An examination of the map of survey introduced into evidence reveals that the confusion in this case arises because the deeds of both plaintiff and defendant Allen refer to a creek as the southern boundary and northern boundary, respectively, of their properties without naming the creek or attempting to locate it with any particularity. There are two creeks running generally east and west in the quarter. Olin views the southernmost creek as its southern boundary while Allen views the northernmost creek as his northern boundary. The dispute is as to the possession of the property between the two creeks.

LSA-C.C.P. Art. 3658 provides:

To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.

LSA-C.C.P. Art. 3660 provides in pertinent part:

A person is in possession of immovable property or of a real right, within the in-tendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper.

When the property description in the title under which the plaintiff claims ownership is not sufficiently clear to show the limit to which he intends to possess, the plaintiff must show actual and corporeal possession of the property. Antulovich v. Whitley, 289 So.2d 174 (La.App. 1st Cir. 1973). His possession must be evidenced by an enclosure of some kind to definitely fix its limits, or it must be evidenced by some external and public signs sufficient to give notice to the public of the character and extent of the possession. Johnson v. La Bokay Corporation, 326 So.2d 589 (La.App., 3d Cir. 1976) and cases cited therein.

Enclosures were explained by the Supreme Court in Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952) thus:

What the court means by ‘enclosures’, as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof. * * * Id. p. 440.

The possession required to entitle one to bring the possessory action is identical to the possession which is required to commence the running of acquisitive prescription. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La. 1975). The quality of possession required in a particular case depends not only on its classification as good faith or bad faith possession, but also on the type of land in dispute. Liner, supra; Boagni v. Pacific Imp. Company, 111 La. 1063, 36 So. 129 (1904). Once the actual and corporeal possession has commenced, it may be preserved by external and public signs announcing the possessor’s intention to preserve the possession of the thing. LSA-C.C. Art. 3501.

Plaintiff contends that it conducted sufficient activity on the property in 1961 to amount to actual possession.

The creek which plaintiff claims as its south boundary is hardly more than a small branch. Even if this could be considered a natural enclosure, there were two streams relatively close to each other which would have limited the effectiveness of either of the streams, or branches, in defining the boundary of the tract.

The block forester who was in charge of the acreage in 1961 testified at trial. He stated that when he examined the tract in 1961 he found a dim yellow line, i. e., marks on trees along the boundary, marking the southern boundary. There was no evidence beyond supposition by one of plaintiff’s witnesses as to who painted that yellow line. He stated that he walked over the entire tract, about 100 acres, only about 10 of which are the subject of the dispute here, to determine if it was suitable for logging operations under the weather conditions existing at that time. Pursuant to his instructions, technicians marked with yellow paint those trees suitable for logging. This apparently amounted to some 10 to 15 trees on the ten acre tract in question. A tally was subsequently made from this marking. Later in 1961, a logging contract was consummated with an individual who, with about 12 men, 4 skidders and three trucks, spent about two weeks on the entire 100 acres removing the marketable trees. Again, this only amounted to 10 to 15 trees on the disputed tract, and, although the time required to remove them is not stated, it could not have been more than one or two days. The operation necessitated pushing a temporary sand structure across one of the streams with a bulldozer for access to the property. The next time any action was taken with regard to this tract was in 1970 when the yellow line was finally repainted by the plaintiff.

After hearing all the testimony and reviewing the jurisprudence on the subject, the trial court concluded that plaintiff’s activity in 1961 did not amount to sufficient corporeal possession to begin the running of acquisitive prescription, or therefore, entitle plaintiff to maintain the possessory action. The trial court concluded, further, that if the 1961 acts were sufficient to constitute corporeal possession, the possession was not continued with other acts of corporeal possession nor did plaintiff maintain those external and public signs that would have preserved the initial actual possession by subsequent civil possession. On the evidence viewed as a whole, we agree with the trial court.

The 1961 activities by Olin involved no more than a dozen men removing timber from a 100 acre tract in the short span of two weeks. The personnel of Olin admitted that most of that activity occurred north of the northernmost stream which traverses this quarter-quarter section. There is no evidence that any action was taken by Olin before 1970, other than the marking and tallying of the 15 trees ultimately removed from the disputed tract, either before or after the two week logging operation in 1961. The only activity of which there was evidence was the repainting of the boundary line, which consisted of painting yellow marks on trees at the edge of the tract in 1970. It was pointed out that the 1970 line did not correspond to the old line, or at least the exact location of the old line could not be determined in certain areas, at the time of the repainting of that line.

The trial judge, in his excellent analysis of the jurisprudence in his reasons for judgment, correctly pointed out that while less possession is required of woodland than of farm land, the cases holding that there were sufficient acts of possession of woodland all involved more extensive activities on that land than exhibited by plaintiff on the subject tract. See Antu-lovich v. Whitley, supra, where the court found that having a survey and marking the line with paint every three to five years, making three timber sales from property and executing two mineral leases, constituted sufficient possession; Veltin v. Haas, 207 La. 650, 21 So.2d 862 (1945), where yearly cutting and removing of timber from swampland found to be sufficient for acquisitive prescription; Dupuy v. Joly, 197 La. 19, 200 So. 806 (1941), where deadening the timber, conducting logging operations over the whole tract, and conducting moss-gathering operations by a number of men during two consecutive years on swampland amounted to possession; Baldwin v. Arkansas-Louisiana Pipe Line Company, 185 La. 1051, 171 So. 442 (1936), where cutting and removing all merchantable timber on an 80 acre tract and building a logging railroad and using it for seven or eight years held sufficient possession for acquisitive prescription; Hill v. Richey, supra, where fencing or remains of old fencing, blazes and hacks on trees by a surveyor, and No Trespassing signs along the boundary with grazing of animals, cutting and removing timber for eight months, etc., amounted to sufficient possession.

We think the facts of the instant case are more analogous to those cases finding insufficient possession to commence the running of acquisitive prescription or to entitle one to relief by way of the possessory action. See Nixon v. English, 207 La. 906, 22 So.2d 266 (1945) where timber cuttings on a small portion of a 40 acre tract without marked boundary lines were held insufficient possession for acquisitive prescription; Lacroix v. Crane, 133 La. 227, 62 So. 657 (1913), where occasional cutting and removal of timber from overflowed lands, and the paying of taxes thereon were held insufficient for actual corporeal possession; Howell v. Metropolitan Land Company, 127 La. 399, 53 So. 664 (1910) where occasional cutting of cordwood and making of staves, and the hauling and floating out of same, along with paying taxes for some years, were held insufficient possession of a large swampland without sufficient boundary markings; Frederick v. Goodbee, 120 La. 783, 45 So. 606 (1908) where cutting of trees in small quantities and at long intervals over a 31 year period on an isolated tract of swampland were held to be insufficient corporeal possession for acquisitive prescription.

Nor can we say that the repainting of the boundary line in 1970 was a sufficient act of corporeal possession to support the possessory action. If this single act would amount to sufficient possession, our conclusion with respect to Olin would be the same. Defendant Allen testified that he painted his own line along the northernmost creek at least one year before removing the timber in May, 1973. If Olin’s actions in 1970 were sufficient corporeal possession to support the possessory action, then the 1972 actions of defendant or his ancestors in title of surveying the property, painting the boundary line and making numerous inspections of the property, along with the Olin management’s admission that company logging operations were delayed two years because of his adverse claim of ownership, would amount to a subsequent dispossession of Olin. If they were indeed dispossessed in 1972, the requisites of LSA-C.C.P. Art. 3658(2), (4) could not be met.

The evidence does not disclose sufficient possession by plaintiff to entitle it to judgment.

For the foregoing reasons, the judgment of the lower court is affirmed at appellant’s cost.

Affirmed.

      . Since we find insufficient corporeal possession by Olin, we do not reach the question of whether civil possession can only be maintained for ten years. See LSA-C.C. Art. 3444 and Manson Realty Company v. Plaisance, 196 So.2d 555 (La.App., 4th Cir. 1967).


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    Marshall Roy LARRIVIERE, Plaintiff-Appellee-Appellant, v. ROY YOUNG, INC., Defendant-Appellant-Appellee.
    No. 5442.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.

      Broussard, Broussard & Moresi by Marcus A. Broussard, Jr., Abbeville, for defendant-appellant.
    John G. Poteet, Jr., Lafayette, for plaintiff-appellee.
    Before HOOD, MILLER and PAVY, JJ-
   MILLER, Judge.

Under an oral contract defendant contractor Roy Young, Inc. built a boat slip 20' long by 10' wide for plaintiff Marshall Roy Larriviere. Larriviere intended the lO' dimension to provide a 10' clearance while Young understood that width to represent exterior measurements. Although the slip was dredged to a width of ten feet and the outside dimensions of the completed boat slip met the W requirement, erection of the bulkheads, whaling, and pilings inside the dredged area resulted in an internal width of little more than seven feet. Young appeals the judgment awarding $2,000 damages for its failure to provide 10’ clearance in the boat slip. Larriviere also appeals contending the award should be increased. We affirm.

Young performed the work at absolute cost in an effort to help Larriviere who is a Catholic priest. Both parties testified the interpretation to be placed on the 10' dimension was not discussed when the contract was confected. Larriviere was out of state when the work was performed.

The parties agreed Larriviere made a pen sketch of the proposed work at the time the contract was confected and the sketch was retained by Larriviere. The sketch is in evidence and supports the trial court conclusion that the 10’ dimension was to provide an inside clearance of ten feet. Young failed to establish manifest error in the trial court’s factual determination.

Furthermore, LSA-C.C. art. 1957 directs that ambiguity is to be construed “against him who has contracted the obligation.” LSA-C.C. art. 1958 provides for construction against the responsible party . . if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given.” Where a layman contracts with a knowledgable and experienced businessman, the burden is on the latter to point out obscurity. To fulfill the burden on the experienced contractor in dealing with laymen, he should point to the inadequacy of the layman’s instructions. For a similar result in a problem with different causes but similar parties, see Leithman v. Dolphin Swimming Pool Co., 252 So.2d 557 (La.App.4 Cir. 1971) .

Larriviere’s appeal seeks to increase the $2,000 award to the $3,500 he paid to increase the width to provide twelve feet of clearance and to provide supports to allow him to lift his boat out of the water. He also sought damages for wear and tear to his boat because of his inability to keep his boat in the boat slip, and for alleged mental anguish, etc.

Although the contractor who modified Larriviere’s boat slip was of the opinion that the change to provide twelve feet of clearance cost no more than it would have cost to provide ten feet of clearance, the trial court specifically rejected this testimony. Furthermore, the $3,500 cost of modification included other improvements which were not clearly required of Young. The trial court specifically rejected Larri-viere’s claim for damages to his boat and for his alleged mental anguish on finding none to have been proved.

Appellants failed to establish manifest error in the trial court’s conclusions. The quantum awarded will be changed only if it is established to be so disproportionate as to amount to an abuse of discretion. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974). No such abuse has been established.

The trial court judgment is affirmed. Costs of this appeal are taxed equally to each party.

AFFIRMED.


author: SARTAIN, Judge.

text:
    Howard L. CHANEY et ux., Plaintiffs-Appellants, v. Jo Ann BRUMFIELD et al., Defendants-Appellees.
    No. 10727.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Bryant W. Conway, Baker, for plaintiffs-appellants.
    Paul B. Marks, Jr., Baton Rouge, for defendants-appellees.

      Before SARTAIN, EDWARDS and CHIASSON, JJ.
   SARTAIN, Judge.

The accident giving rise to this litigation occurred in the private parking lot of Goudchaux’s Department Store in Baton Rouge, on the afternoon of November 2, 1972.

Plaintiffs, Mr. and Mrs. Howard L. Chaney, sued Jo Ann Brumfield and her liability insurer, Aetna Casualty & Surety Company, for special damages and personal injuries, respectively. The trial court found both drivers to be negligent and denied plaintiffs’ claims. We affirm.

Goudchaux’s property extends between Main and Laurel Streets on the north and south and 15th and 17th Streets on the west and east. The building itself is located on the northwest portion of the property. The remainder of the property is utilized for parking purposes. The parking area contains one east to west (two way) driving lane extending generally from 15th to 17th Streets and a series of cross-driving lanes extending from Main to Laurel Streets. These cross lanes also permit two way traffic. Further, these latter lanes are marked for vehicular parking perpendicular to the direction of travel. While the east to west driving lane is unmarked for parking, vehicles park thereon but do so parallel to the direction of travel.

The accident in question occurred at the second intersection from the main building.

Mrs. Chaney testified that she was initially parked on the west-east driving lane and that when she had completed her shopping she pulled out of her parking space and proceeded in an easterly direction; that she stopped at all intersecting lanes; but, that when she proceeded to enter the intersection in question she was struck by the Brumfield vehicle. She stated that the offending vehicle, which was traveling in a southerly direction, was about thirty feet away from her when she first observed it but it was too late at that time to take any evasive action. She was of the opinion that she was on a favored lane and that a stop sign controlled traffic traveling on the parking lane.

Jo Ann Brumfield testified that she was traveling in a southerly direction along the parking lane and when she came to the intersection she looked both ways without stopping and proceeded cautiously into the intersection. She said that when she looked to her right the Chaney vehicle was not there. She could not estimate her speed but repeatedly stated that she was driving “cautiously”.

Mrs. James W. McDonner was a passenger in the Chaney vehicle. She testified that they were traveling about 15 m.p.h. when “she hit us on the left hand side of the automobile.” She did not see the Brumfield automobile prior to impact nor did she hear any “brakes screech”.

An officer with the Baton Rouge City Police Department investigated the accident. This officer stated (by deposition) that neither vehicle left any skid marks and that the intersection as well as the entire parking lot was unmarked for traffic control.

All of these witnesses conceded that vehicular traffic in the parking lot at the time of the accident was exceptionally heavy and that the lot itself was practically filled to capacity. We note that the evidence further shows that other vehicles were so parked as to make observation at this particular intersection very difficult.

In his written reasons for judgment, the district judge, in pertinent part, stated:

“The facts of this case are remarkably similar to those presented in Kemp v. Young, No. 10083 on the docket of the First Circuit Court of Appeal. Bizette v. Lastilla, 238 So.2d 767 (La.App.1970), stands for the proposition that when accidents do not occur on public highways, the standard of care required of drivers is not necessarily established by the Highway Regulatory Act and liability is to be determined in accordance with the general tort law of this State.
“Plaintiff indicated that she stopped before entering the intersection; however, her sister indicated that she was going so slowly she did not need to stop. The physical facts found by the police officer mainly the absence of skid marks, indicate that brakes probably were not applied prior to the collision itself. These facts, together with the testimony of the two drivers and the guest passenger, indicate to the court that this accident occurred as a result of the negligence of both drivers in failing to keep a proper lookout and not seeing what they should have seen.”

We find his conclusions of fact amply supported by the record and concur in his application of the law thereto.

In Kemp v. Young, La.App., 306 So.2d 922, 923 (1974), this court quoted with approval from Bizette v. Lastilla, 238 So.2d 767 (1st La.App.1970), the following:

“Since this accident did not occur on a public highway, the standard of care required of the drivers is not necessarily established by the Highway Regulatory Act. Cavalier v. Peerless Insurance Company of Keene, N. H., 246 La. 336, 164 So.2d 347 (1964). Liability is to be determined in accordance with general tort law under Article 2315 of the Civil Code. Day v. Allstate Insurance Company, 223 So.2d 461 (La.App. 1 Cir. 1969).”

Appellants contend that the trial judge erred in (1) failing to consider the west-east driving lane as the privileged thoroughfare, (2) failing to use the reasonable prudent man test, (3) failing to apply applicable provisions of the Highway Regulatory Act, and (4) concluding under general tort law that both of these parties were negligent.

We have examined the numerous cases cited by counsel for plaintiffs and do not find that the facts therein are apposite to those in the instant case nor the law therein expressed controlling here.

We concede that there may well be situations involving automobile accidents in a private parking lot where certain provisions of the Highway Regulatory Act should and could be applied. However, it would be pure speculation on our part and indeed unwise for us to enumerate examples there of here. We are satisfied that in the case at bar application of the Act is not warranted.

It is unfortunate that Mrs. Chaney thought she was on a favored lane. The evidence in this case does not justify either this conclusion on her part or our finding this lane to be favored over the cross lanes. Further, we can not apply the rule that at uncontrolled intersections the vehicle on the right is generally considered to have the right of way. Particularly, in the instant situation where we have a parking lot with numerous multi-direction lanes. The better rule to apply in the instant matter is that both vehicles be required to proceed with due caution.

Viewing the conflict in the testimony between Mrs. Chaney and Mrs. Mc-Donner relative to whether Mrs. Chaney had actually stopped her vehicle prior to entering the intersecting lanes and considering Mrs. Chaney’s belief that she was favored by a stop sign, we do not find that the trial judge erred in holding that Mrs. Chaney had failed to maintain that degree of observation that was required under the circumstances.

For these reasons, the judgment appealed is affirmed at appellants’ costs.

AFFIRMED.


author: EDWARDS, Judge.

text:
    John DESHOTELS v. STATEWIDE TRAILER SALES and J. G. Duplantis.
    No. 10723.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Keith M. Whipple, Houma, for appellant.
    J. Winston Ardoin, Eunice, for appellees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Plaintiff Deshotels sues defendants Statewide Trailer Sales, Inc. and J. G. Du-plantis for damages to plaintiff resulting from the alleged unlawful taking by defendants of plaintiff’s house trailer. The trial court rendered judgment in favor of plaintiff and defendants appeal.

Defendants-appellants specify the following errors:

(1) The trial court erred in holding the defendants liable in tort;

(2) The trial court committed manifest error in its evaluation of credibility and findings of fact;

(3) The trial court’s award of quantum was excessive.

FACTS:

In June of 1973 John Deshotel was an employee of Statewide Trailer Sales, Inc. (Statewide). His position with Statewide at that time was lot manager of Statewide’s Morgan City lot. The year before, on May 4, 1972, Deshotel had purchased from one Billy Bishop a Sparton House Trailer bearing serial number 2740. The evidence adduced at trial leaves no question that Deshotel was the owner of the Sparton trailer at all times relevant herein.

Art Wiggins began working for Statewide in June of 1973 in the position of assistant to J. G. Duplantis. (J. G. Duplan-tis’ relationship to Statewide was characterized in the record variously as stockholder, secretary-treasurer, general manager, owner and “boss man.”) On or about June 18, 1973, shortly after he began work, Art Wiggins went to see Deshotel to terminate Deshotel’s employment with Statewide. This meeting took place at the Morgan City lot which Deshotel managed. During the discussion Wiggins noticed the Sparton trailer and asked whose it was. Deshotel informed him that it was his, though he could not at that time produce title. After some argument concerning his dismissal, Deshotel agreed to leave. The trailer was moved by Deshotel within two or three days.

Deshotel moved the trailer from the Morgn City lot to a lot owned by Anthony Resignóle, from whom he rented a space for the trailer. Although the testimony is conflicting, this was done obviously just a short time before June 22, 1973. On that date Resignóle decided he didn’t want the trailer on his lot any longer. After trying without success to locate Deshotel, Resignóle went over to the Statewide lot, thinking Deshotel was still employed there. He spoke with Art Wiggins, the gist of the conversation being that he, Resignóle, wanted the trailer moved off his lot.

There is some question whether Resig-nóle conditioned his request and permission on Statewide’s owning the trailer. However, Wiggins then contacted Duplantis in Houma and discussed with him what action to take. During this conversation Wiggins told Duplantis that Deshotel had claimed ownership of the trailer. Duplantis testified that, although he did not know who owned the trailer, he told Wiggins to have it moved to the Houma lot (Statewide’s). We note also that Duplantis testified to some disagreements that he and Deshotel had been having for several years, some resulting in lawsuits.

Following this conversation between Du-plantis and Wiggins, the latter gave instructions to employees of Statewide to move the trailer to the Houma lot. This was done that day: Brian Carmack, an employee of Statewide, towed the trailer with a Statewide truck to Houma. When Deshotel discovered that the trailer had been moved, he made demand on Wiggins for its return. He was told that he could not recover the trailer without showing a bill of sale. This suit followed.

(1) Liability in Tort

While recovery for damage caused through the fault of another is based in Louisiana on Civil Code Article 2315, our courts have long employed common law concepts in determining liability for tor-tious conversion of property. Edward Levy Metals, Inc. v. New Orleans Public Belt R. R., 148 So.2d 580 (La.1963); Rosenthral v. Baer, 18 La.Ann. 573 (1866); Lincecum v. Smith, 287 So.2d 625 (La.App.3rd Cir. 1973), writ refused, 290 So.2d 904 (La.1974).

Conversion has been defined as “a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein.” Lincecum, supra., and authorities cited therein.

Furthermore, it is the act itself, rather than the intentionally or negligently wrongful manner thereof, that constitutes the conversion. Our brothers of the Third Circuit in Lincecum, supra., cited with approval on this point Prosser’s Handbook of the Law of Torts 83-4 (3rd Ed. 1964), and we do likewise:

The intent required is not necessarily a matter of conscious wrongdoing. It is rather an intent to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiff’s rights . . . Persons . . . exercise acts of ownership over them at their peril, and must take the risk that there is no lawful justification for their acts.

The evidence adduced herein clearly shows that there was not only a taking of plaintiff’s trailer by defendants, but also a refusal to return it on plaintiff’s demand. Defendants cannot justify their actions by the plaintiff’s failure to produce to their satisfaction proof of ownership. Defendants acted at their peril; they were wrong and must therefore suffer the consequences of their actions.

(2) 'Trial Court’s Findings of Fact

Defendants complain that the trial court committed manifest error in its evaluation of credibility and findings of fact. After a careful perusal of the record, this Court finds ample basis in the testimony to support the trial court’s judgment imposing liability on defendants. Relative to testimony, we cannot say that the trial court erred in finding it credible. Because of the trial court’s ability to see and hear the witnesses, great weight is accorded its evaluations of credibility. Canter v. Koehring, 283 So.2d 716 (La.1973).

(3) Quantum

Defendants principally contend that the trial court erred in awarding as damages the value of the trailer, citing Marcel v. Denton, 195 So.2d 163 (La.App.1st Cir. 1967). That case states:

If [the goods are] not sold to third persons, the owner is entitled to the return of the property together with such damages as he may have sustained and can establish with that certainty required by law. Hernandez v. Harson, 237 La. 389, 111 So.2d 320.

In the Hernandez case, cited in Marcel, the plaintiff had asked in petition to have the possession restored. However, the jurisprudence is firm that the plaintiff may elect to petition for the return of his property or for the value thereof, the latter regardless of whether it has been sold. Reynolds v. Reiss, 145 La. 155, 81 So. 884 (1919); Vercher v. Toda Enterprises, Inc., 216 So.2d 318 (La.App.3rd Cir. 1968).

The trial court further awarded $1,000.-00 general damages. We do not say that this award was an abuse of his discretion. See Vercher, supra, and Lafleur v. Sylvester, 135 So.2d 91 (La.App.3rd Cir. 1961).

The judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Otis L. BAHAM v. Ernest FAUST.
    No. 10721.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.

      Duncan S. Kemp, III, Hammond, for appellant.
    Eric L. Pittman, Hammond, for appellee.
    Before SARTAIN, EDWARDS and CHIASSON, JJ.
   CHIASSON, Judge.

This is an appeal from a judgment of the District Court dismissing plaintiff-appellant’s rule to evict defendant-appellee for an alleged breach of lease.

On May 29, 1972 the appellant, Otis Ba-ham, leased to the appellee, Ernest Faust, certain acreage in Tangipahoa Parish for a period of seven years. The lessee agreed to pay the lessor a total rental of $16,800.00 in monthly installments of $200.00 each, payable on or before the 28th of each month. The lease did not provide a place where payment was to be made. The lease specified that the acreage was to be used for agricultural purposes only and gave the appellee, lessee, an option to purchase the property at any time during the period of the lease. In addition, the lessee was to pay any increased taxes on the leased property.

In September, 1973, prior to the filing of this rule to evict, the appellant brought suit against the appellee in District Court for an alleged breach of this same lease. The prior suit was tried and judgment was read and signed on March 24, 1975, rejecting appellant’s demand.

During the pendency of the prior suit ap-pellee’s attorney tendered each month’s rent by forwarding appellee’s checks to appellant’s attorney. These checks were returned unaccepted. On February 10, 1975, prior to the conclusion of the preceding trial, the appellee tendered to the appellant a check for $4,000.00 representing the rent tendered but not accepted during the litigation. The appellant accepted this check and on February 28, 1975, eighteen days after receipt, the check cleared the bank. This payment did not include the installment due on February 28, 1975.

The rent due February 28, 1975 was forwarded to appellant’s attorney around March 8, 1975, and received by him on or about that date. This check was returned unaccepted. On March 17, 1975, five days after the adverse judgment was rendered, but seven days before the judgment was read and signed in appellant’s prior suit to evict appellee, appellant gave appellee notice to vacate. The present rule to evict was filed two weeks later on- March 31, 1975 alleging late payment of the rent due on February 28, 1975. On the same day, March 31, 1975, appellant’s attorney forwarded a request for the payment of the increased taxes on the leased property for the years 1972, 1973 and 197S. This was appellant’s first request for payment of the increase in taxes. Appellee’s attorney requested tax receipts so that he might verify the amount due. On April 14, 1975 appellant’s attorney forwarded a tax receipt for the year 1974, but failed to send a tax receipt for the year prior to entry of the lease. On August 11, 1975 plaintiff amended his petition to include failure to pay the increase in taxes as an alleged breach of the lease. Verification as to the amount of taxes paid prior to the lease agreement was not provided until the day of the trial. At that time appellee offered to pay the increase in taxes.

After a hearing on the rule, the Trial Court dismissed appellant’s rule to evict lessee at appellant’s cost. From that judgment appellant brings this appeal.

The appellant contends that the trial judge erred first, in finding that the failure of the appellee to promptly pay the rental installment due on February 28, 1975 was not a violation of the terms of the lease and second, in finding that the appellee’s failure to pay the increase in taxes was not a violation of the terms of the lease.

Article 2710 of the Civil Code provides that the lessee is bound to pay the rent at the terms agreed upon. If the lessee fails to pay the rent when it becomes due he may be expelled from the property. Civil 'Code Article 2712. The dissolution of a lease for non-payment of rent is subject to judicial control according to the circumstances. Edwards v. Standard Oil of Louisiana, 175 La. 720, 144 So. 430 (1932); Belmin v. Sikes, 2 So.2d 65 (La.App.1941).

Where the place of payment is not specified in the lease, Article 2157 of the Civil Code has been held to provide that payment of rent is due at the place where the thing leased was at the time the agreement was made or at the dwelling of the lessee. Saxton v. Para Rubber Co., 166 La. 308, 117 So. 235 (1928); Edwards v. Standard Oil Co. of Louisiana, supra; Belvin v. Sikes, supra; DiFatta v. Campagna, 157 So.2d 633 (La.App., 4th Cir. 1963); Smith Enterprises, Inc. v. Borne, La.App., 245 So. 2d 9 (1st Cir. 1971). The record contains ample evidence of the willingness of the ap-pellee to pay the rent when due. The lessor cannot create a cause of action entitling him to cancel the lease by his own failure to collect the rent at the place where due.

Appellee’s obligation to pay the increase in taxes is an obligation subject to a suspensive condition, that is, it is dependent on a future and uncertain event, or on an event which has actually taken place, without the parties knowing it has already occurred. Appellee’s obligation to pay an increase in taxes is depended on the existence of future tax increases. An obligation subject to a suspensive condition cannot be enforced until the event occurs or becomes known to the parties. Civil Code Article 2043. Appellee could not calculate the increased taxes until he knew both the taxes for each year of the lease and the taxes pri- or to entering the lease. Upon finally receiving this information at the hearing on the rule, appellee offered to pay the amount due. The lessor cannot wait almost three years to make a demand for payment of the increase in taxes and then urge that the lessee’s refusal to pay the amount, without verification, is a breach of the lease.

Therefore, the judgment dismissing appellant’s rule to evict is affirmed at appellant’s cost.

AFFIRMED.


author: LANDRY, Judge.

text:
    Fred P. WESTENBERGER v. STATE of Louisiana, Through the DEPARTMENT OF EDUCATION, et al.
    No. 10717.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.

      Wm. J. Guste, Atty. Gen., and Willie D. Maynor, Asst. Atty. Gen., Baton Rouge, for State through Dept, of Ed.
    Fred P. Westenberger, pro se.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

The State of Louisiana, Through the Department of Education (Department) appeals from judgment awarding plaintiff Fred P. Westenberger (Assignee) the sum of $17,168.81 not received by Assignee from Louisiana Polytechnic Institute (Tech.), Nicholls State University (Ni-cholls) and, McNeese State University (McNeese) (Debtors), because of Debtors’ failure to remit funds to Assignee pursuant to valid assignments. Assignee has also appealed seeking an additional $8,133.97 denied by the trial court on the grounds of equitable estoppel. We affirm in part and reverse in part.

For some years prior to 1970, Sackett Studios, Inc. (Studios) operated three photographic studios in the City of New Orleans, including corporate headquarters located at 1102 Canal Street. H. H. Sackett (Sackett) was Studios’ president and principal shareholder. Sackett’s wife, Rochelle Sackett, was Studios’ secretary-treasurer. Sometime in the late 1960s, Studios branched out into the production of Student Identification Cards for universities, which endeavor required large expenditures in advance for special film in considerable quantities. The ID card business also necessitated the use of expensive, highly specialized equipment.

Assignee, an attorney-at-law, represented Studios and Sackett, commencing in the mid to late 1960s. When Sackett decided to venture into ID card production, As-signee and Sackett entered into an arrangement whereby Assignee would provide the funds required for Studios’ purchase of ID card materials and acquire for lease to Studios such special equipment as was needed for the performance of Studios’ ID card contracts.

Prior to July 1, 1970, Studios had obtained ID card contracts with several universities in different states. Included in these contracts were agreements with Debtors, which contracts commenced the fiscal year beginning July 1, 1970 and were renewable on an annual basis for the fiscal years commencing July 1, 1971 and July 1, 1972. Sackett also owned another concern named Alumina Perpetua, in whose name some of his pre-1970 ID card contracts had been negotiated, the remainder having been put in the name of Studios. When Assign-ee agreed to finance Sackett’s ID card venture, another corporation, Securicard Systems, Inc. (SS Inc.) was formed in early 1970, with Sackett as its president and As-, signee as its vice-president. It was understood that all future ID card contracts would be taken in the name of SS Inc. In addition to being SS Inc.’s vice-president, Assignee was listed as a shareholder of the corporation and was also authorized to counter sign all SS Inc. checks.

For the approximate period July 1, 1970 to June 30, 1973, Assignee arranged loans aggregating $30,000 to $40,000 annually, the proceeds of which were made available to SS Inc. and Studios to finance the ID card contracts undertaken by those corporations during that interval. The loans were made principally in the fall of each year at which time the universities enrollments were heaviest and thus required considerable ID card materials and extra personnel to handle the volume of work involved. In addition to furnishing Sackett working capital, Assignee purchased in his own name and leased to SS Inc. and Studios the special equipment required for ID card production. Assignee took no part in the operation of either SS Inc. or Studios other than to counter sign all checks issued by SS Inc. Assignee’s sole remuneration consisted of interest on the loans advanced and the rental agreed for the leased equipment. During the period in question Sack-ett continued to operate his regular photographic studios, but he did not maintain a separate accounting record of the ID card aspect of his operations.

After the incorporation of SS Inc., all new contracts obtained by Sackett for ID card production were taken in the name of SS Inc. However, for some time after 1970, the annually renewable ID card contracts held by Studios were renewed in Studios’ name.

The record establishes by an overwhelming preponderance, that there was no agreement between Sackett and Assignee to share the profits of either Studios or SS Inc. It also appears that while Assignee was listed as a SS Inc. shareholder, no stock was ever issued Assignee.

As further security for the loans made to Studios and SS Inc., Assignee obtained from Studios an assignment of all proceeds due said concern for contracts to perform ID card work. Notice of said assignment, dated August 10, 1970, was received by Debtors, with the following instructions:

“Please forward all sums paid, or to be paid, under your contract with Sackett Studios, following receipt of invoice from them, to the following:
Fred Westenberger
Leasing
1047 N.B.C. Bldg.
New Orleans, LA. 70112”

In 1972, when certain contracts to produce ID cards were taken in the name of SS Inc., a second assignment was taken by Assignee, notice of which, dated July 26, 1972, was sent to and received by Debtors, with these instructions:

“Enclosed please find an assignment form executed by Securicard Systems, Inc. Kindly send proceeds to the office of
F. P. Westenberger
1047 N.B.C. Bldg.
New Orleans, La. 70112”

It is conceded that during the period July 1, 1970 to June 30, 1973, Debtors, with whom Studios and/or SS Inc. had contracts to make student ID cards, issued numerous checks in payment for said services, which checks were made payable to and mailed to Studios at its main office at 1102 Canal Street, in violation of the directives contained in the above mentioned assignments. Assignee contends that a number of these checks were never received by him or SS Inc. but were instead misappropriated by Sackett. Assignee’s suit is for the aggregate of the checks shown by their endorsements to have been received by someone other than Assignee or SS Inc.

The following salient facts are stipulated or conceded: (1) Debtors received the notices of assignment on or about August 12, 1970 and July 28, 1972; (2) All checks sued upon by Assignee were issued by Debtors in payment of goods and services rendered by Studios or SS Inc.; (3) All checks sued upon herein were made payable to persons other than Assignee and were deposited to accounts other than As-signee’s account; (4) The assignments relied upon by Assignee are valid, complete assignments; and (5) that Assignee was never a stockholder, officer or director of concerns known or designated as H. H. Sackett or Hyman H. Sackett Travel Account, which names appear as endorser on some of the checks issued by Debtors, and to whose account the checks were deposited, all of which such checks are herein sued upon by Assignee.

Betty Lou Mixon, McNeese Comptroller since July 1, 1972, Gus Vavaro, Vice-President of Student Affairs at Nicholls and Weldon R. Walker, Purchasing Agent at Tech, testified as to the procedures employed by Debtors in payment of contracts for goods and services furnished those institutions. In essence, each admitted having made several payments in noncompli-anee with the notices of assignment. Each, in effect, explained that the notices had been overlooked or misplaced in their files or that they merely assumed payments made to Sackett would be forwarded by him to the person entitled thereto.

Mrs. Mixon conceded that the August 10, 1970 notice of assignment was in her office files when she became comptroller but that she did not personally become aware of its existence until 1973, when she received correspondence from Assignee. After Mrs. Mixon became comptroller, all checks issued by McNeese were mailed pursuant to the second notice dated July 26, 1972, which payments are not involved herein. However, between September 25, 1970 and December 16, 1971, before Mrs. Mixon became comptroller, McNeese issued eleven checks which were mailed to Assignor’s main office at 1102 Canal Street, admittedly in noncompliance with the August 10, 1970 notice of assignment. The first such check, dated September 25, 1970, was endorsed by Sackett and deposited to Assignee’s account and is not sued upon. Another check, dated September 10, 1971, bears at undecipherable endorsement for which reason it also is not sued upon. The remaining nine checks, issued between September 30, 1970 and December 16, 1971, totalling $3,016.82 bear endorsements indicating they were neither received by As-signee nor deposited to Assignee’s account. Assignee seeks recovery for the amount of these checks.

Mr. Vavaro testified that both notices of assignment were in his files. His general practice was to pay for ID card work by check manually delivered to representatives of studios and SS Inc., while such persons were still on campus. Vavaro explained that he had not obtained Assignee’s permission to make payment in this manner but assumed that Assignor’s representatives would forward the payments to the proper person. He also stated that some payments were made by mail, especially the cost of makeup pictures; checks in each such instance were sent to the invoice address. He could not recall whether or not the addresses on the invoices involved were the same in all instances.

Between the first notice date of August 10, 1970, and January 21, 1972, Nicholls issued eight checks for ID card work done by Assignor corporations. The first five checks, totalling $7,469.07 were payable to Studios and either manually delivered to Sackett employees on campus or mailed to 1102 Canal Street, New Orleans. All were endorsed by Studios. Assignee sues on' these checks because none were received by him or deposited to his account. Nich-olls’ check dated August 28, 1971 for $5,869.25 was also payable to Studios and delivered to a Sackett employee on campus. This check was delivered to and received by Assignee and forms no part of Assign-ee’s demand. In January of 1971, Nicholls issued SS Inc. a check for $174.86 and Sackett personally a check for $1,226.50, both admittedly either delivered on campus or mailed to 1102 Canal Street, New Orleans. The former is endorsed for deposit only in a “S.S.I. Account,” which is not the account of either Studios or SS Inc.; the latter was endorsed by Sackett for deposit in his personal account. Assignee seeks recovery of both items.

Following receipt of the July 26, 1972 notice, Nicholls issued five checks to SS Inc. At least two checks were paid on campus, the testimony being unclear as to the manner of payment of the remaining three. The second paid on campus check, dated January 12, 1973, for $1,138.36, was the only one not received by Assignee, and its recovery is sought.

According to Weldon R. Walker, purchasing officer for Tech, his office issued purchase orders for all goods purchased by, as well as all services rendered to, that university. Based on such purchase orders, Tech’s comptroller issued checks to the various suppliers and contractors. He acknowledged that the first notice of assignment was misplaced in the files and that no Tech checks were transmitted in compliance therewith. Moreover, he did not consider the initial assignment applicable to Tech payments between July 1, 1971 and June 30, 1972, when Tech’s contract was with SS Inc., because the first assignment was from Studios, not SS Inc. Walker also stated that all Tech checks is- ■ sued after July 26, 1972, the effective date of the SS Inc. assignment, and June 30, 1973 were mailed in compliance with the. assignment. It is shown, however, that at least one Tech check issued after July 26, 1972 was received and endorsed for deposit in an account designated “S.S.I. Account” which account was under Sackett’s personal control.

From September 20, 1970 to June 14, 1971, when Tech’s contract was with Studios and the initial notice of assignment was admittedly applicable, Tech issued nine checks totalling $6,861.11 to Studios for student ID work, all of which checks were mailed to 1102 Canal Street, New Orleans, in admitted noncompliance with the August 1970 assignment. All were endorsed for deposit only in Studios’ account.

During the fiscal year July 1, 1971 through June 30, 1972, when Tech’s contract was with SS Inc., and the 1970 assignment was allegedly inappliable, Tech issued six checks to SS Inc., all of which were mailed to 1102 Canal Street, New Orleans. Assignee is suing on only two of these checks because three of the remaining four were received by Assignee and the endorsement on the fourth such check is so illegible that the true disposition of its proceeds cannot be ascertained. Of the two checks sued upon, one, dated Septem-, ber 20, 1971 for $4,462.29, was endorsed by Sackett and deposited to his travel account. The other, dated April 17, 1972 for $274.-75, was endorsed “for deposit only” in the account of a concern known as S.S.I.

After receipt of the 1972 notice of assignment from SS Inc. to Assignee, Tech issued five checks to SS Inc. for ID work, all of which, Walker testified, were sent to Assignee in compliance with the assignment. However, one such check was not received by Assignee but was endorsed for deposit only in the account of S.S.I., which account was apparently under Sackett’s exclusive control. This check, dated November 1, 1972, for $405.32, is among those sued upon herein.

The trial court found that none of the checks sued upon were delivered or mailed to Assignee and that Assignee had no knowledge of the issuance of said checks until 1973, when Assignee discovered that Sackett was misappropriating funds due Assignee. The trial court also found that none of the checks in suit were received by Assignee or SS Inc., in which corporation assignee was an officer and alleged stockholder. The trial court also rejected the Department’s contention that Assignee negligently failed to require more satisfactory security for his loan and in failing to demand a more effecient accounting from Sackett.

Based on Walker’s testimony, the trial court found neither assignment applicable to Tech’s checks issued between July 1, 1971 and June 30, 1972, under the SS Inc. contract and that Assignee was not entitled to recover for the two checks, totalling $4,737.04, issued during that interval and not received by Assignee. However, the lower court found this determination inapplicable to Nicholls and McNeese because their contracts for this same period were merely renewals of the original Studios contract. For this reason the court concluded that no new assignment was necessary as to Nicholls and McNeese.

The trial court also denied Assignee’s recovery on several checks upon finding As-signee estopped, which estoppel was applied to checks issued after Assignee had knowledge that Debtors were in noncompliance with the assignments. Assignee’s recovery was limited to $17,168.81, representing checks issued before Assignee became aware of Debtors’ noncompliance.

The Department has appealed contending the trial court erred as follows: (1) overruling the Department’s exception of three years prescription; (2) finding that none of the checks aggregating the $17,168.81 recovery allowed Assignee were received either by Assignee or SS Inc.; (3) failing to find that Assignee and Sack? ett were joint ventures and that Sackett’s. misconduct was therefore imputable to As-, signee; (4) failing to find that Assignee had earlier notice of Debtors’ noncompliance than that found; and (5) failing to find Assignee negligent for failure to require greater security and safer accounting methods on the part of Studios and Sack-ett.

Assignee has appealed contending that the trial court erred in applying equitable estoppel by silence to Assignee’s claim and thus denying recovery on certain checks and also in inadvertently omitting three checks, totalling $1,250.07, from the judg-, ment awarded.

PRECRIPTION

The Department’s plea of three years prescription applicable to accounts of merchants or other accounts, provided for by La.Civ.Code Art. 3538, was properly held inapplicable herein by the trial court. The cited article applies only to accounts for goods sold, merchants’ accounts against their customers and to those businesses or other relations in which accounts are customarily rendered. United Carbon Company v. Mississippi River Fuel Corp., 230 La. 709, 89 So.2d 209. Article 3538 does not apply to claims for labor and materials furnished at various times extending over a period of several months, such claims being characterized as personal actions which are governed by the ten year prescriptive period provided by La.Civ.Code Art. 3544. Antoine v. Franichevich, 184 La. 612, 167 So. 98.

In this instance Sackett and his employees furnished labor and materials more in the nature of contractors rather than merchants. The prescriptive period for a personal contract to furnish goods and services is that of ten years pursuant to Article 3544. An assignee is governed by the same prescriptive rules applicable to his assignor. Carte Blanche Corporation v. Pappas, La.App., 216 So.2d 917.

ASSIGNEE’S NON-RECEIPT OF CHECKS AT ISSUE

The Department does not make clear the basis of its contention that the trial court erroneously concluded that none of the checks sued upon were received by Assignee directly or through a corporation in which Assignee had an interest. The Department merely suggests that several of said checks were payable to and endorsed by SS Inc., a corporation in which Assignee was a shareholder. However, the endorsements on eleven checks payable to SS Inc. show conclusively that their proceeds were never received by Assignee or SS Inc. Four were deposited to the account of Studios; five were endorsed for deposit only in the account of S.S.I.: one was deposited to H. H. Sackett Travel Account and the remaining check was deposited in an account unknown to Assignee. We find that the record supports the conclusion that none of these checks were received by As-signee or any corporation in which Assign-ee had an interest.

ALLEGED JOINT VENTURE

A joint venture is a special combination of two or more persons who engage in a specific venture for their joint profit or gain, without an actual partnership or corporate designation. Hayes v. Muller, 245 La. 356, 158 So.2d 191. It has been expressly ljgld that a joint venture cannot exist where the business or enterprise is organized and operated in corporate form. Ault & Wiborg Co. of Canada, Ltd. v. Carson Carbon Co., 181 La. 681, 160 So. 298. Moreover, to constitute a joint venture, each party must have equal right to direct and govern the conduct of the other involved, as well as some voice in the control and management of the business undertaking which is the subject of the parties’ relationship. Hauth v. Iacoponelli, 251 La. 410, 204 So.2d 767.

The elements necessary for a joint venture are lacking herein. Assignee and Sackett were officers and presumably shareholders in a common corporation, SS Inc. Assignee’s only other relationship with the enterprise in question was that of creditor of SS Inc., lessor of SS Inc. and Studios, and also as attorney for both corporations. There was no agreement between Assignee and Sackett to share the profits of the ID card venture; neither did Assignee exercise any control or management over the undertaking. It follows that there was no joint venture agreement between Assignee and Sackett.

EQUITABLE ESTOPPEL

The trial court found that Assignee had actual knowledge of noncompliance with the assignment notices by McNeese on December 4, 1970, by Nicholls on August 28, 1971, and by Tech on October 20, 1971. This conclusion was predicated upon As-signee’s endorsement of checks sent by Debtors respectively on the mentioned dates, which checks had been either manually delivered to Sackett or one of his employees or mailed to 1102 Canal Street. The lower court held that Assignee thereby incurred the obligation of re-notifying Debtors when these violations of instructions occurred and that Assignee’s failure in this respect barred and estopped Assign-ee’s recovery for checks issued thereafter.

Estoppel is not favored in law because it bars the normal assertion of rights, for which reason the doctrine is cautiously applied. Estoppel must be specifically pleaded; each element required for estoppel must be proven by the pleader. American Bank and Trust Company v. Trinity Universal Insurance Company, 251 La. 445, 205 So.2d 35. Additionally, the pleader of estoppel must establish his own good faith and diligence. United Gas Pipeline Company v. Bellard, La.App., 286 So.2d 109.

Equitable estoppel is the effect of the voluntary conduct of a party which precludes his asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will sustain injury if the former is allowed to repudiate his conduct. Based on good faith, the doctrine prevents injustice by barring a litigant, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence. American Bank and Trust Company v. Trinity Universal Insurance Company, above.

The three elements required for application of equitable estoppel are: (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance. Wilkinson v. Wilkinson, La., 323 So.2d 120.

In this case, the Department invokes estoppel by silence contending that Debtors justifiably relied on Assignee’s failure to protest transmissions of payments in noncompliance with the assignment agreements. The jurisprudence is well settled to the effect that mere inaction or silence cannot be the foundation of es-toppel unless the circumstances impose a duty to speak or act, and for this duty to arise, the following conditions must be met: (1) the party estopped must be shown to have had opportunity to speak or act; (2) the party estopped must have had full knowledge of the facts and of his rights; (3) the party estopped must have intended ..to mislead or at least have had a willingness that others should be deceived; (4) the pleader of estoppel must be shown to have been ignorant of the truth and without convenient or ready means of learning the truth; and (5) the pleader of estop-pel must have been misled into doing what he would not have done but for the silence of the party estopped. Harvey v. Richard, 200 La. 97, 7 So.2d 674; Parker v. Ohio Oil Co., 191 La. 896, 186 So. 604; Hattiesburg Manufacturing Co. v. Pepe, La.App., 140 So.2d 449.

The record discloses that Assignee knew only that Debtors occasionally transmitted payments to unauthorized persons but had no knowledge of Sackett’s misappropriations. On the contrary, Assignee received occasional checks transmitted through Sackett which could have induced the reasonable assumption that Sackett was properly accounting to Assignee for all such payments. Moreover, the record is totally devoid of any intent upon Assign-ee’s part to deceive or mislead Debtors. We find these circumstances sufficient to preclude application of equitable estoppel in this instance.

We agree with the trial court’s determination that Assignee should not be barred from recovery because of alleged negligence in failing to require greater security for his loan. This contention addresses itself simply to a matter of business judgment.

In effect, however, the trial court applied the doctrine of estoppel by silence predicated almost entirely upon Whittington Co. v. Louisiana Paper Co., Ltd., 224 La. 357, 69 So.2d 372, in which plaintiff lessor sued defendant lessee for monthly rental payments misappropriated by lessor’s employee to whom lessee made payments, contrary to the lease which provided for deposit of monthly rental to lessor’s bank account. In Whittington, lessor was barred from recovery because the accountant involved was considered lessor’s general agent who had great latitude in managing lessor’s affairs.

Assignee herein had assignments from Sackett for student ID work from numerous universities other than Debtors. As-signee had no way of knowing the dates that payments would be made on Sackett’s contracts or the amounts thereof. We find Whittington, above, so factually dissimilar as to be inapplicable herein.

CHECKS NOT COVERED BY THE ASSIGNMENTS

The first such check issued by Tech was dated July 28, 1970, before the effective date of the August 10, 1970 assignment. Assignee’s concession that this check was erroneously included in those sued upon precludes further discussion of this item.

We are in agreement with the trial court’s determination that the 1970 notice of assignment did not apply to checks issued by Tech after June 30, 1971, because the notice referred exclusively to an assignment by Studios. However, on July 1, 1971, Tech confected a new contract with SS Inc., which agreement was not a renewal but rather a new contract awarded after competitive bidding. Since Tech had no notice of an assignment by the new corporation, SS Inc., Tech was not obligated to remit to Assignee payments made thereon. We therefore find that the trial court properly denied Assignee recovery for Tech’s check No. 243, dated September 20, 1971, for $4,462.29, and check No. 5425, dated April 17, 1972 for $274.75.

We conclude that Assignee is entitled to recover on the following checks: McNesse checks numbered 011902, 015400, 016045, 018677, 019739, 020405, 021350, 024763 and 025468, totalling $3,016.82; Nicholls checks numbered 153, 174, 179, 195, 197, 212, 213 and 238, totalling $10,008.79; and Tech checks numbered 16972, 17042, 17420, 18674, 19093, 19890, 21421, 22224, 23276 and 9780, totalling $7,266.43, or an aggregate amount of $20,292.04.

It is ordered, adjudged and decreed that the judgment of the trial court in favor of plaintiff Fred P. Westenberger against defendants the Department and Debtors be and the same is hereby amended to increase the award to said plaintiff from $17,168.81 to $20,292.04, with legal interest thereon from date of judicial demand, until paid. All costs of these proceedings to be borne by defendants, the Department and Debtors, to the extent permitted by law.

Amended and rendered.


author: COVINGTON, Judge:

text:
    Joseph L. MAYEUX v. Harold HUGHES.
    No. 10715.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.

      Ralph D. Hillman, Thibodaux, for appellant.
    John F. Pugh, Thibodaux, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This is a suit for damages, and alternatively for a reduction in the purchase price of a residence. The plaintiff, Joseph L. Mayeux, alleges that he purchased a residence in Thibodaux, Lafourche Parish, Louisiana, from the defendant, Harold Hughes, on June 6, 1975, and that soon thereafter the roof of the dwelling seriously leaked due to its deteriorated condition. The plaintiff further alleges that the cost of replacement amounts to the sum of $3,000.00, and that consequently he is damaged in this amount, or should receive this amount as a reduction in the purchase price.

After the sale of the residence, defendant moved to the State of Texas. Thereafter, on September 16, 1975, the plaintiff filed suit in Lafourche Parish and attempted to serve the defendant under the provisions of LSA-R.S. 13:3204, which provides that if a certified copy of the citation and the petition in a suit under LSA-R.S. 13:3201 shall be sent to the defendant by registered mail, it has the same legal force and validity as personal service on the defendant in this state. Subsequently, the defendant filed a declinatory exception based on insufficiency of citation, contending that the Louisiana “Long-Arm Statute”, LSA-R.S. 13:3201 et seq. was not applicable to him in this situation. A hearing was held on the exception and the court sustained the exception, holding that the “Long-Arm Statute” is inapplicable to the salient facts.

The matter is on appeal to this court from the judgment sustaining the exception. The plaintiff-appellant contends in this court, as he did below, that subsection (e) of R.S. 13:3201 specifically applies to this situation; and alternatively, that if this specific subsection does not apply then other general provisions of the “Long-Arm Statute” are applicable, namely, subsections (a) and (b).

LSA-R.S. 13:3201 reads, in part, as follows :

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(a) transacting any business in this state;
(b) contracting to supply services or things in this state; . . .
(e) having an interest in, using, or possessing a real right or immovable property in this state.”

Defendant’s position basically is that the mail-service process of LSA-R.S. 13:3204 is only authorized under the “Long-Arm Statute”, and that, since LSA-R.S. 13:3201 does not confer jurisdiction under the circumstances here, such service was unauthorized and does not constitute a valid service of process.

Of course, a proper resolution of the question involved herein requires us to determine jurisdiction of the Louisiana courts, and this determination rests upon the interpretation of the Louisiana “Long-Arm Statute”.

The design of the statute is to reap the “fullest benefits” from United States Supreme Court cases relaxing constitutional due process requirements as such pertain to personal jurisdiction in civil suits. The intent of the long-arm statute is to provide the Louisiana resident with maximum protection, in Louisiana courts, from damages occasioned him by acts of a nonresident when the nonresident has “minimal” contacts with this state. See Aucoin v. Hanson, 207 So.2d 834, 836 (La.App. 3rd Cir. 1968). The designed impact of the statute is best expressed by McMahon, Louisiana Legislation of 1964 — Personal Jurisdiction over Non-Residents, 25 La.L.Rev. 28, 32 (1965):

“With the adoption of the Personal Jurisdiction over Non-Resident Statute, it is believed that the courts of Louisiana now possess all of the jurisdiction in personam, over all types of non-residents permitted by the decisions of the United States Supreme Court.”

In the Comments of Louisiana State Law Institute following LSA-R.S. 13:3201, it is stated:

“R.S. 13:3201 through 13:3207 were adopted on the recommendation of the Louisiana State Law Institute to permit the courts of this state to tap the full potential of jurisdiction in personam over nonresidents permitted by International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945); and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).”

In addition, in its comments to subsection (e) of LSA-R.S. 13:3201, which provides for personal jurisdiction over nonresidents with regard to causes of action arising out of nonresidents’ interests in im-movables of this state, the Law Institute explained:

“The words ‘real right’ of Subdivision (e) are not employed in the source provision. It was included in this subdivision to provide the basis of personal jurisdiction over a nonresident on a cause of action arising from the ownership, use, or possession of a ‘real right’ as defined in Article 3664 of the Louisiana Code of Civil Procedure.”

These two Comments indicate the broad scope of subsection (e), showing that it embraces “real rights” as well as “immovable property,” and that it is intended to encompass all those rights traditionally classified as “real rights,” namely, ownership, use, habitation, usufruct, predial servitudes, pledge and real mortgage. See Yiannopoulos, Civil Law of Property, sec. 91, page 266 (1966).

It is, thus, the act enumerated in the statute which, when committed in this state, forms “an independent specifically-affiliating basis” for personal jurisdiction over nonresidents. See Thomas Organ Co. v. Universal Music Co., 261 So.2d 323, 326 (La.App. 1st Cir. 1972).

In the instant case, the defendant-seller had an ownership interest in the Louisiana immovable property. He conveyed his ownership interest to the plaintiff-buyer in Louisiana. The buyer complains of a defect in the immovable property conveyed, bringing what should properly be classified as an action of quanti minor-is. See LSA-C.C. arts. 2520, 2541:

The plaintiff’s cause of action arises from the nonresident’s “having an interest in, using, or possessing a real right or immovable property in this state.” The defendant owned a home in Louisiana in which he resided; he sold the home to the plaintiff, another Louisiana resident, and moved to Texas. It later developed that the home had a leaky roof. This state of facts forms the basis for personal jurisdiction over the nonresident defendant herein. The trial court erred in ruling that the nonresident must have a present interest in the immovable property in this state at the time of the suit. Subsection (e) of LSA-R.S. 13:3201 is not subject to such a narrow construction. Moreover, the definition of “nonresident” includes “an individual domiciled in Louisiana at the time the cause of action arose, but which acquires another domicile prior to suit.” LSA-R.S. 13:3206, Comment (c). Under subsection (e), the nonresident’s act of selling his Louisiana residence is sufficient to grant the Louisiana courts personal jurisdiction over him. This subsection specifically covers any transaction involving a nonresident’s interest in immovable property in this state. The sale of immovables, by a Louisiana act of sale, is one of the prime situations contemplated by subsection (e). Such an act of sale of real estate within this state constitutes a “minimal” contact with this state within the accepted jurisprudential meaning so as to justify personal jurisdiction in our courts over a nonresident seller of such real estate.

Typically, this “minimal” contact can be by some act within the state, such as in Terasse v. Wisconsin Feeder Pig Marketing Coop., 202 So.2d 330, 333 (La.App. 1st Cir. 1967), wherein the Wisconsin defendant had furnished a Louisiana broker a price list for cows, from which the Louisiana plaintiff ordered a number of cows, paying cash for them upon delivery. The court held there were sufficient contacts in Louisiana to justify personal jurisdiction over the nonresident defendant.

In its opinion the court remarked:

“. . . (T)he State of Louisiana has a manifest interest in protecting its citizens and of providing them with a means of redress. Furthermore, we feel that it would be more of a disadvantage for the plaintiff to have to go to the domicile of defendant, Wisconsin, rather than bring his suit here since all of the witnesses are located here.”

This observation by the Terasse court is pertinent here. Certainly, all of the witnesses to the act of sale, to the defective condition of the home, to the reduced value of the home or necessary repairs, and to all other relevant facts are located in this state.

For other cases discussing “sufficient” contacts, see Dodson v. Fontenot, 285 So.2d 328 (La.App. 3rd Cir. 1973), and Aucoin v. Hanson, supra.

Not only was there a “minimum” of contacts in this state so far as the subject matter of this case is concerned, but all of the contacts were made here. The entire transaction took place in this state. The defendant seller became a “nonresident” only after the transaction was completed, by departing the state for the State of Texas. The State of Texas has had no contacts with this transaction. To deny the plaintiff service upon the defendant just because he moved from Louisiana, where the complete transaction forming the basis of this suit took place, would be contrary to the concept of “fair play and substantial justice.” See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Tate, The Work of the Louisiana Appellate Courts for the 1967-1968 Term — Civil Procedure, 29 La.L.Rev. 269, 271 (1969); Comment, Personal Jurisdiction over Nonresidents— The Louisiana “Long-Arm” Statute, 40 Tul.L.Rev. 366 (1966); Note, Some Observations on the Louisiana “Long-Arm” Statute, 45 Tul.L.Rev. 1081 (1971).

Where not only “minimal” contacts, but all or substantial contacts, have taken place in this state, as in the situation here the Louisiana courts should be able to protect the interests of its citizens in controversies arising out of acts occurring within its borders. Surely, the State of Louisiana has a greater interest in the subject matter of this suit than does the State of Texas, where the defendant now resides.

We conclude that jurisdiction is conferred by LSA-R.S. 13:3201(e). Since we find subsection (e) applicable, it is unnecessary for us to determine if subsections (a) and (b) are also applicable to this situation.

Under the “Long-Arm Statute”, service of process by registered or certified mail, as was done in the instant case, is equivalent to personal service on the defendant in this state; LSA-R.S. 13:3204.

Thus, it is unnecessary that an attorney ad hoc be appointed to represent the nonresident herein and on whom service of process may be made, because LSA-C.C.P. art. 5091 only requires such appointment if the nonresident has not been served personally or through an agent for service of process.

Under the clear wording of LSA-R.S. 13:3204 all that is necessary to constitute personal service of process of a nonresident under the “Long-Arm Statute” is that counsel for the plaintiff send a certified copy of the citation and petition in the suit to the defendant by registered or certified mail (or actually deliver it in person). The record shows that the defendant was properly served in this suit.

Accordingly, we hold that the trial court erred in sustaining the defendant’s declina-tory exception. The judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings in accordance with law and the views herein expressed. The defendant-appellee, Harold Hughes, is cast for costs of this appeal; all other costs are to await the outcome of this litigation.

REVERSED AND REMANDED.


author: PONDER, Judge.

text:
    Eloise M. Wilkinson RUSSELL v. Michael Joseph RUSSELL.
    No. 10711.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.

      David L. Dawson, Baton Rouge, for appellant.
    Joseph P. Brantley, IV, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Eloise M. Wilkinson Russell, plaintiff-appellee, filed suit for separation on the grounds of abandonment against Michael Joseph Russell, defendant-appellant. Mr. Russell in reconvention prayed for separation against Mrs. Russell on the grounds of abandonment. After trial the lower court rendered judgment in favor of plaintiff-ap-pellee granting her a separation “a mensa et thoro,” and dismissed defendant-appellant’s reconventional demand. Mr. Russell has timely perfected this appeal. We affirm.

In mid-July, 1975, evidently amid extreme marital friction, Mrs. Russell, frustrated because her husband had not talked to her for some two months, wrote him a note, stating an intent to leave. The next day the parties discussed the feasibility of Mr. Russell moving out of the matrimonial domicile.

Mr. Russell testified that he resented the fact that his wife’s father cared for her while she was recuperating from a recent difficult pregnancy and childbirth.

In any event, according to Mrs. Russell, she told her husband that if he didn’t want to stay, he did not have to. She testified that he chose to leave, but wanted time to find another place to stay.

Apparently the situation worsened. On or about July 19, 1975, Mr. Russell moved from the house. He testified that he left at the wife’s insistence and that she actually packed his bag. Mrs. Russell testified that she packed her husband’s suitcase only after he said he was leaving and that she merely did not want his leaving to be drawn out any further.

This suit was filed on July 25, 1975.

In early August, 1975, Mrs. Russell left the house trailer because of high water and moved in with her father. This was corroborated by the testimony of all the witnesses, even that of her husband.

In mid-August, with the water still ankle deep outside, Mr. Russell moved back into the trailer. On at least four occasions thereafter he telephoned his wife and asked her to come back. He testified that he wanted her back so they could be a family again. However, Mrs. Russell testified that her husband told her he wanted her back for other reasons. According to her, he said that if she came back, each of them could go their separate ways. He could do what he wanted; she could do what she wanted. She further testified that he had told her that the only reason he wanted such an arrangement was to make sure that he would not have to pay alimony or child support the rest of his life.

There were at least two confrontations of the parties after they separated in fact. In one instance, Mrs. Russell had left the baby with her father and gone out with one of her friends. Mr. Russell became angered and found his wife in a nightclub. Mrs. Russell testified that he slapped her and yelled at her. Mr. Russell admitted slapping at his wife but did not remember hitting her. In any event, he was escorted from the club. Mrs. Russell, afraid, was escorted home by two police officers.

On another occasion, Mr. Russell went to his wife’s place of employment, a bank. Mrs. Russell testified that her husband hollered wild accusations at her, “whose bed did you sleep in, where is my child, why aren’t you home, I’m back in the trailer.” She further testified that the bank’s personnel director warned her that if any further disturbances occurred she might be fired. Mr. Russell admitted the confrontation, but denied that he was loud or used obj ectionable language.

Defendant-appellant argues that the lower court erred in:

1) finding that he abandoned his wife;
2) not finding that he was justified in leaving the matrimonial domicile; and,
3) not finding that his wife abandoned him.

The trial judge characterized Mr. Russell’s leaving as “the final act in what had already been an abandonment in spirit;” it “merely formalized what had already taken place.” We cannot disagree. Mr. Russell did not deny that he had ceased communicating with his wife. Without such a denial, we must take it as true. This certainly evidences that Mr. Russell did not want to live with his wife.

Both parties, as expected, contradict each other as to the circumstances around Mr. Russell’s departure. Mr. Russell contends that he left at his wife’s insistence. Mrs. Russell contends that her husband when given a choice, chose to leave, and that she merely helped him pack his suitcase.

The trial judge viewed the witnesses, evaluated their demeanor, and chose to believe Mrs. Russell’s version. He was in a better position than this court to evaluate credibility. The jurisprudential rule that the trial judge’s evaluation of credibility is entitled to great weight and will not be overturned in the absence of manifest error is particularly applicable in domestic relations cases. Blackman v. Blackman, 253 So.2d 672 (La.App. 2nd Cir. 1971); Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581 (1947).

No manifest error has been shown. Instead, we reach the same legal conclusions of the lower court. Accordingly, we find that Mr. Russell left the matrimonial domicile without legal justification and by no fault of his wife.

Defendant-appellant argues that, if he is deemed to have left without legal justification, he still cannot be considered to have abandoned his wife because he went back to the trailer house and asked her to come back. Ordinarily, a husband who returns to the matrimonial domicile and in good faith offers to resume the marital relation, is not considered to have abandoned his wife. However, these facts are not here presented.

We, like the lower court, choose to believe Mrs. Russell’s version that the offers by her husband were made only because he did not want to worry about paying alimony and child support. They were not manifestations of a sincere desire to resume the marital relationship. Under the circumstances, Mrs. Russell was clearly justified in refusing to return.

Lastly, defendant-appellant argues that the basis of the lower court’s judgment was not abandonment, but cruelty, that the only evidence of any cruelty on his part were the altercations at the nightclub and work, and that such evidence was not only insufficient, but also inadmissible under the pleadings as the only cause of action alleged by his wife was abandonment. Defendant-appellant further argues that his failure to object in the lower court to the nightclub and work episodes did not enlarge the pleadings so as to include the separate issue of cruelty because pleadings are not enlarged by the introduction of evidence that is admissible on a contested issue, that the question of abandonment includes the issue of fault, both initially and on failure to reconcile, and the ordinarily objectionable evidence went to that issue.

We have carefully examined the oral reasons in the record and they reflect that the lower court based the judgment of separation entirely on the grounds of abandonment, not cruelty. Therefore, we find it unnecessary to discuss defendant-appellant’s contentions relative to cruelty.

Accordingly, for the above and foregoing reasons we affirm; defendant-appellant to pay all costs of this appeal.

AFFIRMED.

      . Defendant-appellant argues that what the personnel officer said is hearsay and cannot be considered by this court. We note, however, that defendant-appellant has waived this objection by his failure to timely object to .this testimony in the lower court.


author: LOTTINGER, Judge.

text:
    Mr. and Mrs. John NORMAN v. ARGONAUT SOUTHWEST INS. CO. et al.
    No. 10840.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Alfred Mitchell, Plaquemine, for appellant.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellee Baton Rouge Gen. Hospital.
    Horace C. Lane, Baton Rouge, for defendant-appellee Belleau.
    Donald S. Zuber, Baton Rouge, for defendant-appellee Wilson.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: BLANCHE, Judge.

text:
    Mrs. Jacklyn Glossop MOREAU, Individually, and as Tutrix of her minor children, Michael Moreau and Thomas F. Moreau v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS.
    No. 10754.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.

      Wm. J. Guste, Jr., Atty. Gen., Robert C. Funderburk, Jr., and Thomas K. Kirkpatrick, Asst. Attys. Gen., Baton Rouge, for appellant.
    George H. Jones and Frank J. D’Amico, New Orleans, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

The plaintiffs-appellees, Mrs. Jacklyn Glossop Moreau, individually, and as tutrix of her minor children, Michael Moreau and Thomas F. Moreau, Jr., sued the defendant-appellant, State of Louisiana, through the Department of Corrections, for failing to provide adequate medical care to her deceased husband, Thomas F. Moreau, who was stabbed by an unknown assailant while incarcerated at Louisiana State Penitentiary.

The trial judge found negligence on the part of defendant and stated that New Orleans Charity Hospital, which provided medical care to the deceased, was also negligent. However, as to the hospital, his statement was gratuitous, for they were not a party to the suit.

Mrs. Moreau, individually, was awarded the sum of $26,306. Judgment was also rendered in favor of Mrs. Moreau as tu-trix of her minor child, Michael Moreau, in the sum of $7,500. As tutrix of their posthumous child, Thomas Moreau, Jr., she was awarded the sum of $5,000. All judgments were to bear legal interest from date of judicial demand until paid. Two hundred fifty dollars was granted for the expert witness fee of Dr. Frank Minyard.

On December 6, 1968, at approximately 1:30 A.M., Thomas F. Moreau was stabbed numerous times about the chest and body by an unknown assailant while he was sleeping in his bunk at the Louisiana State Penitentiary, Angola, Louisiana.

Responding to Moreau’s cries for help, prison officers rushed him to the prison hospital. He remained there for appoxi-mately one and a half hours during which time the only medical attention he received was sutures to close the wounds and an injection of demerol to relieve pain.

Although the record reflects that a doctor was employed by Angola at the time of the incident, he was not called to attend Moreau. The only medical person to treat the injured inmate was James A. Kimble, technician on duty the night of the incident.

Moreau’s condition was recognized as serious, and it was decided to transport him to New Orleans Charity Hospital, approximately 150 miles distant. The record does not reflect who made the decision to send the patient to New Orleans.

At approximately 6:00 A.M. the ambulance arrived at Charity, at which time Moreau’s outward signs appeared to be stable.

One thousand cubic centimeters (approximately two pints) of blood were extracted from his chest, but due to the nature of the wounds, he continued to bleed and the chest filled again with blood. As a result, his vital signs became critical at approximately 10:00 A.M.

At this turn of events, an emergency operation was undertaken, commencing at 12:10 P.M. His vital signs stabilized somewhat during and after the operation, but the patient subsequently expired at 12:35 A.M. on on December 7, approximately twenty-three hours after the attack.

The defendant has appealed, contending that in view of the emergency situation, the personnel of the prison breached no duty to the decedent. It argues that the trial judge concluded that the defendant was liable by relying too heavily upon the testimony of Dr. Minyard, the only medical expert to appear in the case. Alternatively, the defendant contends that the negligence of Charity Hospital was a superseding, intervening cause of death and as such the Department of Corrections should be relieved of liability. Furthermore, it contends the award was too high under the facts of this case.

The plaintiffs-appellees have answered the appeal, seeking additional compensation.

In support of their case, the plaintiffs elicited the expert medical testimony of Dr. Minyard, who was Coroner for the City of New Orleans at the time of trial. Dr. Minyard testified that in his practice he had treated several hundred cases involving stab wounds of the chest similar to those suffered by the decedent, and he concluded that the cause of this death was irreversible shock due to loss of blood.

He opined that Moreau went into shock immediately after the stabbing since at least two pints of blood were lost into the chest cavity. Because nothing was done to retard the effect of that blood loss until the patient reached Charity Hospital, the doctor concluded that the defendant had rendered inadequate medical care.

Judging from their treatment of the deceased, the personnel at Angola did not consider the patient to be in shock and, accordingly, did not so treat him. However, Dr. Minyard stated that in a healthy twenty-two year old male, as was the decedent, signs of shock do not appear immediately. In the light of the foregoing and in view of the obvious severity of the wounds, Dr. Minyard was of the opinion that the defendant’s personnel committed grave error by failing to immediately treat this patient for shock.

To retard the effects of shock, Dr. Min-yard argued that at the very minimum the victim should have immediately received dextran, a blood expander, to maintain an adequate volume of blood in the body and oxygen to facilitate the oxygen-carrying capability of the remaining blood. These procedures would have mechanically slowed the shock process until it could be irreversibly stopped by surgical procedure.

He also felt that preliminary blood typing should have been done at Angola so that whole blood could have been administered upon arriving at a medical facility. He opined that the treating doctors at Charity were 'probably slowed by the fact that the patient’s blood type had to be calculated. None of the foregoing procedures were attempted by the defendant’s personnel.

By its failure to perform these procedures, Dr. Minyard concluded that the defendant wasted approximately four hours of critical time, the interval between Mo-reau’s first treatment at Angola and his arrival at Charity. He was of the opinion that due to that loss of time the decedent’s organs were placed in a state of irreversible shock which ultimately resulted in his death.

The conclusions of this expert were un-rebutted by the defendant.

In view of Dr. Minyard’s testimony, the only medical evidence presented at trial, we have no hesitancy in finding that the action of the defendant’s employees was a substantial factor and cause in fact of Moreau’s death. Dixie Drive-It-Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962).

The next question is whether or not the actions of the defendant’s personnel were a breach of duty owed to the decedent. The defendant has certain statutory duties to provide medical care to inmates. LSA-R.S. IS :760 provides:

“Where large numbers of prisoners are confined the proper authorities in charge shall provide hospital quarters with necessary arrangement, conveniences, attendants, etc.”

LSA-R.S. 15:831 provides:

“The director of corrections shall establish and shall prescribe standards for health, medical, and dental services for each institution, including preventive, diagnostic, and therapeutic measures on both an outpatient and a hospital basis, for all types of patients. An inmate may be taken to a medical facility outside the institution when deemed necessary by the director. Added by Acts 1968, No. 192, § 1.”

LSA-R.S. 15:859 provides:

“The superintendent shall appoint physicians who shall visit the convicts at least three times a week. Their compensation shall be determined by the superintendent.
“In cases of emergency the officers in charge of the convicts may call in local physicians whose compensation shall be determined by the superintendent.”

The foregoing is statutory authority to impose on the defendant the duty of providing reasonable medical care for those persons incarcerated in our state prisons. See Dancer v. Department of Corrections, 282 So.2d 730 (La.App. 1st Cir. 1973).

From our review of the evidence, we have no difficulty in finding, as did the trial judge, that the defendant breached its duty to the deceased by not providing him with adequate emergency medical treatment.

The risk that the decedent would suffer harm because of the defendant’s inadequate medical care was well within the scope of the duty. The duty does not require the defendant to maintain a full hospital at the site of each of its prisons in order to protect the inmates against every known medical risk. However, the duty does encompass the risk that occurred herein, that is, that an inmate would be injured and require life-saving medical attention.

In an attempt to relieve itself of liability, the defendant argues that the conduct of the staff at Charity Hospital was an intervening and superseding cause in Moreau’s death.

The trial judge found that Charity Hospital was negligent in caring for the decedent but that such negligence concurred with that of the defendant to produce the harm. The facts of this case do not support defendant’s contention that the hospital’s negligence was a superseding cause in this death. Therefore, even assuming ar-guendo that Charity Hospital was negligent, that negligence would not relieve the defendant of liability in the instant case.

As noted by the trial judge, the defendant might have joined Charity Hospital as a co-defendant and thereby relieved itself of at least a portion of the financial burden of this death. However, it chose not to do so, and, therefore, it was not error for him to cast the defendant in judgment for the full amount of damages.

In their answer to the appeal, plaintiffs seek additional damages for the decedent’s pain and suffering during the twenty-three hours he survived after the stabbing. It is clear from the record that the trial judge inadvertently omitted this award. Under the facts of this case, we are of the opinion that an award of $2,500 would be appropriate.

The remaining awards are within the great discretion accorded the trial judge in such matters and will not be disturbed on appeal.

For the above and foregoing reasons, the judgment in favor of plaintiff, Mrs. Jacklyn Glossop Moreau, individually, and as tutrix of her minor children, Michael Mo-reau and Thomas F. Moreau, Jr., is amended by the addition of $2,500. In all other respects, the judgment of the trial court is affirmed. The costs of this appeal are to be borne by defendant-appellant.

AMENDED, AND AS AMENDED, AFFIRMED.