author: MARVIN, Judge.

text:
    Pearl Smiddy COBBS et vir., Plaintiffs-Appellants, v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 13665.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.
    Rehearing Denied Dec. 13, 1978.

    Writ Refused Jan. 19,1979.
    Booth, Lockard, Jack, Pleasant & LeSage by James E. Bolin, Jr., Shreveport, for plaintiff s-appellants.
    John Gallagher, City Atty. by James R. Malsch and Charles R. Scott, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.

       BOLIN, J., recused.

   MARVIN, Judge.

Plaintiffs appeal from a judgment rejecting their demands for damages that were sustained when Mrs. Cobbs drove the family automobile over a wood and metal barricade which had been placed on a street undergoing repairs by the City. We affirm.

Appellants set forth three specifications of error, contending the trial court erred.

—in finding Mrs. Cobbs was negligent;
—in refusing to apply CC Art. 2323, com-

parative negligence, and;

—in failing to impose strict liability under CC Art. 2317 because the City barricade was a “defective” thing when its blinking warning light had failed to operate to the knowledge of the City.

The lower court found that Mrs. Cobbs was a frequent traveler of the street (Hollywood Avenue); that the street was sufficiently well lighted and the barricade well painted with reflectorized paint so that it could be seen from at least 200 feet away; that Mrs. Cobbs was traveling 20-30 MPH and had seen a 12 foot high flag stand warning traffic of a “single lane ahead”; and that there was no traffic or other things diverting Mrs. Cobbs’ attention on the night of the accident. The record supports these findings and the conclusion that Mrs. Cobbs was negligent in failing to observe the barricade. We also note Mrs. Cobbs’ admission that she saw, after the accident, the blinker lights in approximately 10 additional barricades facing her which were flashing at the time of the accident.

By a 1971 ordinance, the City adopted standards and specific methods for the barricading of construction on city streets in a “Traffic Barricade Manual”. The barricades and the warning sign used by the City in this instance were of the specified type but were not positioned exactly as specified by the manual. The lower court found the City negligent because of this and because the blinking light on the first barricade was not functioning.

The manual uses diagrams to depict the required placement of signs and barricades in given situations. These diagrams from the manual show the suggested type of sign, barricade and placement for the situation we are considering, as follows:

Voriobfe 45 21 45° ■ 3' to 3Vi‘ - $ s $ & 11 «5Í l=.< >S| £?l'

The City employee who was foreman of the repair job in question testified about the placement of the flag stand and sign, “Single Lane Left”, and the barricades on Hollywood. The barricades were placed on Hollywood about 30 feet apart east of Ferris Street until they reached a point about a half block from Prentiss Street, where the repair was. From a half block away from the repair site, the barricades were placed about 15 feet apart. The barricades had blinking lights, most of which were operating on the night in question. The foreman testified that he placed the flag stand and sign, “Single Lane Left”, with a barricade on Hollywood, east of Ferris Street with three other barricades channeling traffic to the left and followed this with other barricades for 300 feet west on Hollywood to its intersection with Prentiss, where the repair work was being done. Thus for more than 300 feet the street was barricaded.

Under the circumstances we can agree that the City did not exactly follow its traffic barricade manual but we cannot agree with the conclusion that the City’s failure to do so constitutes negligence. The violation of an ordinance does not always give rise to actionable negligence, Smolinski v. Taulli, 276 So.2d 286 (La.1973), and in any event we find the City to have substantially complied with the manual.

We do not find that the failure of. one blinker even on the first of ten or more barricades which were interspersed over a distance of more than 300 feet constitutes a defective thing within the meaning of CC Art. 2317, Loescher v. Parr, 324 So.2d 441 (La.1975) and its progeny.

Finding then no negligence on the part of the City, we need not make the comparison so astutely suggested by counsel for plaintiffs.

At appellants’ cost, judgment is Affirmed.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Bernard R. ACOSTA v. George R. CARY, Jr., et al.
    No. 9480.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Joseph S. Russo, Jefferson, for plaintiff.
    Gregory J. Laborde, Henry B. Alsobrook, Jr., Adams & Reese, New Orleans, for defendants.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   REDMANN, Judge.

Does an employee have a right to privacy which obliges a physician, evaluating a back injury for the employee’s present employer, not to give the employer a copy of the physician’s' evaluation of earlier injury to the employee for a prior employer? We answer no, but only if the earlier evaluation is relevant to the latter claim, and for lack of a showing that this earlier evaluation was, we set aside a summary judgment dismissing the employee’s action for damages against the physician.

The question is one of privacy rather than patient-physician privilege because plaintiff was never a patient of defendant and therefore the privilege does not attach; State v. Berry, La.1975, 324 So.2d 822, cert. denied, 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed. 198.

An employee who claims Workmen’s Compensation for a work-connected injury waives any right of privacy, vis-a-vis the employer against whom the claim is made, in respect to every matter relevant to the claim. By presenting himself to be examined by the physician selected by the employer for the very purpose of evaluating the injury and determining its extent and whether or not it is attributable to that employer’s employment, the employee necessarily consents that the physician may disclose to the employer any medical circumstances relevant to his claim. Because the employer has the right to learn the truth about the employee’s claim, the employee must forego his privacy (insofar only as relevant) in order to claim compensation benefits.

However, the employee’s waiver of privacy is necessarily implied only to the extent pertinent to the employer’s defense; an employee claiming for a broken leg does not waive privacy as to his gastro-intestinal upsets. And, although defendant argued that the earlier injury he reported was also a back injury, and that plaintiff on the later examination gave defendant a history denying this prior injury, those circumstances are not made to appear in an affidavit in support of the motion for summary judgment or elsewhere in the record.

Set aside; costs to await final disposition.

      . See also, by analogy, La.R.S. 13:3734 (as added, Acts 1968 No. 499), making the bringing of a personal injury action by a “patient” a consent that any treating or prescribing physician whose testimony is “material” shall testify. The terms of that statute do not fit our case both, from defendant’s point of view, because plaintiff was not a “patient . . prescribed for or treated” by defendant and, from plaintiff’s point of view, because the personal injury action had not yet been brought. (Amendments to the statute by Acts 1977 No. 670 and Acts 1978 No. 430, irrespective of whether applicable to this 1975 incident, do not significantly alter these two aspects of the statute.)

      . The statutory waiver of La.R.S. 13:3734C(3), as amended Acts 1978 No. 430, may appear to be broader than the necessary waiver resulting from persisting in a claim. However, this case does not require interpreting that statute.


author: BOUTALL, Judge.

text:
    Charles RAY v. ASSOCIATED INDEMNITY CORPORATION and Rose Lacour.
    No. 9485.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 19, 1978.
    Writ Granted Feb. 16, 1979.
    Franklin D. Beahm, for Manard, Schoen-berger & Ryan, New Orleans, for Charles Ray, plaintiff-appellant.

      David M. Cambre, Dillon, Cambre & Marshall, New Orleans, for Associated Indem. Co., defendant-appellee.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

This is a case involving termination or expiration of an automobile liability insurance policy. Suit was brought in connection with an accident occurring on December 5, 1975, between Charles Ray and Rose Lacour, allegedly an insured of Associated Indemnity Corporation. A motion for summary judgment was brought and granted on the grounds that the policy of insurance in question expired on July 3,1975 and was never renewed.

That section of the policy at issue reads as follows:

“1. Policy Period, Territory. This policy applies only to accidents, occurrences and loss during the policy period while the automobile is within North America or any territory or possession of the United States of America, or is being transported between ports thereof. The policy period shall- be as shown in the declarations. Subject to the consent of the Company, the policy may be continued thereafter for successive policy periods of equal duration by payment of the required continuation premium to the Company on or before the effective date of each successive policy period. If such premium is not paid when due, the policy shall terminate as of that date and such date shall be the end of the policy period. Such premium shall be computed in accordance with the rates, premiums, rating plans and manual rules then, in use by the Company.”

The uncontested facts are these:

On January 3,1974, Associated Indemnity Corporation issued a policy of insurance to Rose Lacour which provided coverage until July 3, 1974 on the automobile in the accident referred to above. This policy was extended on two separate occasions by the payment of a continuation premium by Mrs. Lacour before the date of the expiration of the policy. On both occasions, the company mailed out continuation notices advising her that the policy would be continued only if this premium was timely paid.

No premium was paid by July 3, 1975 for the period spanning from that time until January 3, 1976. The suit brought by the appellant, Charles Ray, alleged that Mrs. Lacour was still insured by the appellee, Associated Indemnity, in December of 1975. The summary judgment in favor of defendant-appellee was granted on November 17, 1977 by the trial judge.

The one contested fact in this case deals with the mailing of a continuation notice by the appellee to Mrs. Lacour. Both sides filed affidavits: The appellee alleging that the notice had been mailed and the appellant alleging that Mrs. Lacour had received no notice. For the reasons assigned below, we find this disputed fact to be irrelevant to the determination of this case and, finding no contested issues of law or fact, affirm the granting of the motion for summary judgment.

Louisiana Revised Statute 22:636.1, in pertinent part, reads as follows:

“B. A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
“(1) Nonpayment of premium; or
“(2) The driver’s license or motor vehicle registration of the named insured or of any other operator who either resides in the same household or customarily operates an automobile insured under the policy has been under suspension or revocation during the policy period, or, if the policy is a renewal, during its policy period or the one hundred eighty days immediately preceding its effective date; or
“(3) Fraud or material misrepresentation in the presentation of a claim.
“This subsection shall not apply to non-renewal or to any policy or coverage which has been in effect less than sixty days at the time notice of cancellation is mailed or delivered by the insurer unless it is a renewal policy. After an insurer has paid and satisfied an insured’s third physical damage claim the modification of such insured’s automobile physical damage coverage by the inclusion of a deductible not exceeding fifty dollars shall not be deemed a cancellation of the coverage or of the policy.”
“E. No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty days advance notice of its intention not to renew. This subsection shall not apply: (1) if the insurer has manifested its willingness to renew; or (2) in case of nonpayment of premium; provided that, notwithstanding the failure of an insurer to comply with this subsection, the policy shall terminate on the effective date of any other insurance policy with respect to any automobile designated in both policies.”

Appellant argues that Section E. above provides for automatic renewal of a policy if neither of the two exceptions contained therein applies. Since neither section does apply, the argument continues, the company had to renew the policy. Therefore, appellant concludes that the failure of the company to renew, or cancel the policy under Section B., results in the continuation of the policy beyond the expiration date. We find that neither of these provisions applies in this case.

We deal here with a situation in which the policy simply expired by its terms. Further, the law does not require that notice be given by the insurer on a policy in which the period of coverage is 6 months. Section B. on cancellation does not apply since by its terms it is inapplicable in a non-renewal situation. See Section B. supra. Section E. deals only with a situation in which the insurer does not wish to renew. The insurer was willing to renew the policy, in this case, but no continuation payment was forthcoming from the insured. Section E. then has no bearing on a 6 month policy which expired by its own terms due to non-payment of the renewal premium.

Our attention has been drawn to the cases of Arceneaux v. Broussard, 319 So.2d 846 (La.App. 1st Cir. 1975) and Taylor v. MFA Mutual Insurance Company, 334 So.2d 402 (La.1976). We feel that these cases are not controlling of the issue at hand since the policies in those cases were of a duration of 3 months and our policy is for 6 months. Louisiana Revised Statute 22:636.1 A(5) makes a special exception for policies of less than 6 months, which the Supreme Court interpreted in Taylor to require a continuation notice when read in connection with Sections B. and E. above, thus overruling Arceneaux. Since our policy is for a 6 month time, Section 636.1 A(5) does not require a notice.

Section 22:636.1 A(5) reads as follows:

“(5) ‘Renewal’ or ‘to renew’ means the issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term; provided, however, that any policy with a policy period or term of less than six months shall for the purpose of this chapter be considered as if written for a policy period or term of six months. In addition, any policy written for a term longer than one year or any policy with no fixed expiration date, shall for the purpose of this chapter, be considered as if written for successive policy periods or terms of one year, and such policy may be terminated at the expiration of any annual period upon giving twenty days notice of cancellation prior to such anniversary date, and such cancellation shall not be subject to any other provisions of this chapter.”

By the express terms of this Statute, the requirement of notice which the Supreme Court in Taylor placed upon companies issuing policies for terms of less than 6 months, does not apply to policies in which the term is between 6 months and one year. An opposite interpretation would render the separation of these period classifications in this section superfluous. As stated by the Supreme Court in Taylor:

«* * * * we agj.ee wjth the Second Circuit’s conclusion in this case as to the intent of the proviso in La.R.S. 22:636, 1A(5) that policies issued for less than a six-month period shall for all purposes of the Insurance Code be considered as if written for a policy period of six months (see 322 So.2d 845):
‘The effect of the statutory provision as we construe it is to require an insurer who wishes to terminate coverage during the statutory six month policy period for any reason (including the failure of the insured to pay a “renewal” premium which fell within the six month period) to comply with the cancellation provisions of the statute. Apparently, the legislature felt there was a danger in writing a policy for a short period of time in that the insured might not be aware that his coverage had terminated. We believe the legislature intended that an insured under a policy written for a short term of less than six months should have the benefit of the cancellation provision of the statute so that he would have adequate notice and opportunity to procure other insurance protection.’

This clearly takes our case out of the purview of the Taylor decision and is consistent with our interpretation of the Legislative intent as to policies which extend for a period of between 6 months and one year.

Since we find no genuine issue as to a material fact and the mover is entitled to judgment as a matter of law, the motion for summary judgment was properly granted in the court below. See Code of Civil Procedure Article 966. We, therefore, affirm the decision of the trial court, dismissing appellant’s suit.

AFFIRMED.


author: BEER, Judge.

text:
    FIRST NATIONAL BANK OF COMMERCE v. Edson DAVIS.
    No. 9488.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.

      Beoubay & Gegenheimer, Kenneth A. Beoubay, Gretna, for defendant-third party plaintiff-appellant.
    Landwehr & Foley, Ronald J. Hof, New Orleans, for plaintiff-appellee.
    Chaffe, McCall, Phillips, Toler & Sarpy, Peter A. Feringa, Jr., William F. Grace, Jr., New Orleans, for third party defendant-ap-pellee.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, First National Bank of Commerce (hereafter, “F.N.B.C.”), sued Davis, individually, seeking to recover $5,587.44, the total amount of three insurance drafts ($1,862.48 each) payable to Aggregate Transport, Inc. and Ford Motor Credit Company (hereafter, “Ford”). F.N. B.C. premised Davis’ personal liability on the allegation that he improperly and without authorization caused such endorsements to be placed on the drafts as to result in the proceeds inuring to his benefit. The drafts were drawn by Zurich-American Insurance Company in payment of a claim filed by Ford, the loss-payee and mortgagee of eight Aggregate Transport, Inc. vehicles, and were intended to cover a theft loss. However, the drafts were sent to Aggregate Transport, Inc., of which Davis is president and principal stockholder, and endorsed while in their possession, and thereafter deposited to the F.N.B.C. account of Ready Mix Corporation. Davis happens to also be the president and principal stockholder of Ready Mix Corporation.

Continental Illinois National Bank and Trust Company of Chicago dishonored the drafts upon presentment by F.N.B.C., who, thereupon, remitted its own cashier’s check for $5,587.44 to Continental.

Davis now appeals from a judgment in favor of F.N.B.C., alleging error on the part of the trial judge in finding that Davis was personally liable. F.N.B.C. contends that the trial court properly resolved the factual issues regarding the endorsement and subsequent retention of the funds by Davis— who controlled both the co-payee corporation and the fund recipient corporation.

The facts are not complicated. Aggregate Transport was the owner of four trucks and four trailers secured by a chattel mortgage in favor of Ford. Aggregate had voluntarily surrendered and released these vehicles to Ford since it was unable to pay the balance due on the notes. Ford was the loss payee on Aggregate’s insurance policy.

LSA-R.S. 10:3-404 provides:

“(1) Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it; but it operates as the signature of the unauthorized signer in favor of any person who in good faith pays the instrument or takes it for value.”

Pat Glasser, National Accounts Officer of F.N.B.C., testified that Davis had informed her that Ford had authorized his endorsement and deposit of the checks into the Ready Mix account.

Ted May, branch manager of Ford’s Little Rock office, denied the genuineness of the Ford endorsement and denied authorizing Davis or Ready Mix to retain the proceeds of the insurance drafts.

On direct examination, Davis first denied personal receipt and endorsement of the drafts. His version of his conversation with Glasser was that he told her that he felt that the insurance proceeds belonged to Aggregate because that company had replaced some of the stolen items for which the claim had been filed. He denied telling her that he either endorsed or instructed his office personnel to write Ford’s endorsement on the checks. He testified that one Gilbert Smith was authorized by him to endorse checks on behalf of Aggregate but acknowledged that Smith had left Aggregate for health reasons, and that his whereabouts were unknown. He sought to explain the deposit of Aggregate’s check into the Ready Mix account as merely a repayment to Ready Mix of a cash advance on a hauling contract between the two corporations.

In his oral reasons for judgment, the trial judge stated that the burden of proof had been met by F.N.B.C., indicating that the drafts would not have been endorsed and deposited into the Ready Mix account except for the specific actions of Davis, who completely controlled the two corporations.

Compellingly clear circumstances can indicate that a corporation and the individual principal shareholder operated as one entity. Kingsman Enterprises, Inc. v. Bakerfield Electric Company, Inc., 339 So.2d 1280 (La.App. 1st Cir. 1976). Clearly, the trial judge concluded that the evidence preponderated in favor of the conclusion that the endorsement was made pursuant to specific instructions by Davis. It is well settled that the reviewing court must give great weight to the factual conclusions of the trier of fact, and that where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Based on Miss Glasser’s testimony and on the compellingly clear circumstantial evidence, it was not error to conclude that Davis bore full responsibility for the improper and unauthorized endorsement of Ford Motor Company, and, thus, LSA-R.S. 10:3-404 was properly applied. The same is true with respect to the trial court’s factual findings which support its dismissal of the third party claim against Ford Motor Company. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Octavia ELLIZEY v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 9495.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.

      Murray, Murray, Ellis, Braden & Landry, W. Glenn Burns, New Orleans, for plaintiff-appellee.
    James Maher, III, New Orleans, for defendant-appellant.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Defendant has appealed from a judgment awarding damages to plaintiff for injuries she sustained when she fell down on one of defendant’s buses.

Plaintiff, who was 59 years of age and in no way handicapped, boarded the bus to go to work as she had done for 27 years. After paying her fare and walking to a point about half way to the back of the bus she fell down. In her petition she alleged that the driver started off suddenly and with a jerk and she testified to that effect. However, two passengers, one of whom was her own witness, and the bus driver testified that the bus started out slowly and without any jerk. It had been raining and the floor of the bus was wet.

In his reasons for judgment, the trial judge found that the driver did not start off with a jerk or in a sudden manner and plaintiff’s fall was caused solely by the wet floor. In questioning of the bus driver, he learned that the driver was not required to sweep or mop up a wet floor, so he concluded that the driver himself was not negligent but defendant was negligent in failing to provide dry floors to its customers. He expressly acknowledged in his reasons that if defendant does not have the legal duty of providing dry floors, the judgment is erroneous. He felt that defendant should have the floors of its buses mopped down every twelve or twenty-four blocks under rainy conditions.

When plaintiff proved that she was a fare paying passenger and was injured she established a prima facie case of negligence against defendant and imposed the burden on it to exculpate itself. It was incumbent upon defendant to prove that it exercised the highest degree of diligence, care and precaution for the safety of the fare paying passengers. If guilty of the slightest degree of negligence defendant is liable to plaintiff. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963). Plaintiff’s case has been and is now based on the proposition that the bus driver jerked away from the stop so as to come within the holding of Jackson v. New Orleans Public Service, Inc., 342 So.2d 258 (La.App. 4th Cir. 1977). See also, Skidmore v. New Orleans Public Service, Inc., 311 So.2d 511 (La.App. 4th Cir. 1975). However, in the instant case defendant proved to the satisfaction of the trial judge that there was no sudden start or jerk of the bus causing plaintiff’s fall. Therefore, defendant carried the burden of proof as to the only real charge of negligence made against it. The case is the same as Penny v. New Orleans Public Service, Inc., 328 So.2d 729 (La.App. 4th Cir. 1976) and Johnson v. New Orleans Public Service, Inc., 293 So.2d 203 (La.App. 4th Cir. 1974).

In order to grant plaintiff recovery the trial judge imposed a duty on defendant to keep the floors of buses dry at all times or suffer the consequences should a passenger fall on a wet floor. We note that this is not a case where the wet floor was unusually slippery because of its condition or because of some foreign substance on the floor. Plaintiff has cited no jurisprudence to support the trial judge’s decision and we are not aware of any. On the other hand, to hold defendant liable under these circumstances would be to make defendant the insurer of the safety of its customers, a result not supported by the jurisprudence.

The judgment appealed from is reversed and set aside, and there is judgment in favor of defendant, New Orleans Public Service, Inc., and against plaintiff, Octavia Ellizey, dismissing her suit at her cost, including the cost of this appeal.

REVERSED AND RENDERED.


author: LEMMON, Judge.

text:
    STAN WEBER & ASSOCIATES, INC. v. ORLEANS MOTORS, INC. and Jay J. Ehara.
    No. 9504.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.

      Reginald T. Badeaux, Jr. and J. Michael Cumberland, New Orleans, for defendant-appellee Orleans Motors, Inc.
    Robert Scott McIntosh, II, New Orleans, for defendant-appellant Jay J. Ehara.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   LEMMON, Judge.

This case involves conflicting claims to a deposit on an aborted contract to buy and sell immovable property. The litigation originated as a concursus proceeding invoked by a real estate broker after both the buyer and seller claimed the deposit. The broker disclaimed any interest in the deposit (in the form of a promissory note) and sought to be relieved of liability by placing the note in the registry of court and imp-leading the two claimants. The issue on appeal is whether the buyer, Jay Ehara, proved that a condition nullifying the contract had been met.

On March 23, 1977 Ehara executed a written offer to purchase certain immovable property owned by Orleans Motors, Inc. for the sum of $186,500.00, the sale to be passed by June 30. Orleans accepted the offer on March 31.

The contract was a printed standard form to which Ehara added the following condition:

“ROOF & TERMITE CONDITIONS
“PROPERTY MUST BE INSPECTED FOR TERMITE AND/OR TERMITE DAMAGE AND/OR ROOF DAMAGE WITHIN 5 WORKING DAYS OF ACCEPTANCE OF THIS OFFER AT EXPENSE OF PURCHASER. IF TERMITE, TERMITE DAMAGE AND/OR ROOF DAMAGE IS DISCOVERED, ERADICATION AND/OR REPAIR SHALL BE DONE AND COMPLETED BY DATE OF ACT OF SALE AT SELLER’S EXPENSE. IF COST OF TERMITE ERADICATION, TERMITE DAMAGE AND/OR ROOF REPAIR EXCEEDS $500.00, PURCHASER HAS OPTION TO DECLARE THIS AGREEMENT NULL AND VOID.”

At the time Ehara executed the offer, there was obvious evidence of recent water damage inside the building. The contractual condition inserted by Ehara provided him not only with a commitment that the roof would be repaired and that any termites would be eradicated and termite damage corrected, but also with a right of withdrawing from his obligation if such damage proved to be substantial upon thorough inspection.

On April 5 at Ehara’s request a termite inspector examined the property and found no active termites in the building. He did find evidence of past infestation consisting of damage to one 4X8 sheet of wall paneling near the air conditioning equipment, and he estimated that the cost of replacement was $20.00.

Sometime after the inspection Ehara requested a contract price for preventive treatment, and the inspector submitted a price of $840.00. However, in answer to a question at trial by Ehara’s counsel, the inspector specifically stated that treatment was not warranted because of evidence of past infestation, but was a preventive measure to protect against any future infestation.

Ehara also had the roof inspected on April 5 by Hibernia Roofing, who reported that a damaged turbine vent needed to be replaced at a cost of $87.00.

On April 13 Ehara wrote a letter to the broker, exercising his option to nullify the sales contract on the basis of the reports by Hibernia Roofing and the termite inspector. Orleans rejected the contention that the cost of termite eradication, termite damage and roof repair exceeded $500.00, and Orleans’ attorney placed Ehara in default when he failed to take title prior to June 30,1977, further demanding forfeiture of the deposit.

After trial on the merits judgment was rendered in favor of Orleans, and Ehara appealed.

Ehara contends that the contract was null because the cost of termite eradication alone exceeded $800.00. The evidence clearly refutes this contention, since there were, in fact, no termites to eradicate. The contractual provision was intended to take care of existing problems, and any cost for preventive treatment would not be incurred to eradicate existing termites, but to prevent termite infestation in the future, the inspector’s testimony indicating that preventive treatment should be undertaken regardless of the age of the structure or of its history of past infestation. This record therefore does not establish the necessity of incurring any cost for termite eradication and at best establishes the cost of termite damage repair was $20.00.

Ehara further contends that the cost of roof repair exceeded $500.00. He bases this contention on his conversations with E. C. Rietschel, the roofer who actually performed the repairs for Orleans.

Orleans subpoenaed Rietschel, but he was excused from testifying when his physician advised against court appearance following a recent heart attack. Orleans’ president testified that Rietschel performed all the repair for $370.00, but admitted that Riet-schel had bid $450.00 and had reduced the bid in the prospect of additional work.

In order to be relieved of the obligation because of a contractual condition, Ehara had the burden of proving .that the condition had been met. He simply did not prove that the cost of roof repairs exceeded $500.00 (or even $450.00). Moreover, he has no valid basis for complaint because Riet-schel, whom he had not subpoenaed, did not testify for reasons of health.

The trial court properly ordered that the note be endorsed by the broker and that Orleans be entitled to possession of the note. The trial court also awarded 25% attorney’s fees, supposedly in accordance with the provisions of the note. However, the note provided that attorney’s fees were due when the note was overdue and placed in the hands of an attorney for collection. Since Orleans’ claim was for ownership of the deposit (whether note or cash) which Ehara also claimed, not for collection of a note which Ehara failed to pay, attorney’s fees are not due at this time.

Accordingly, the judgment of the trial court is amended to delete the award of attorney’s fees. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . The interior damage caused by a roof leak was fully covered by insurance, and the damage was repaired shortly thereafter with funds provided by Orleans’ insurer. Only the roof defect (and not the interior rain damage) is pertinent to the considerations in this case.


text:
    Samuel JONES v. SIGHTS AND SOUNDS, INC. and XYZ Insurance Company.
    No. 9505.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rudman & Howard, Laurence D. Rud-man, New Orleans, for plaintiff-appellant.
    Hailey, McNamara, McNamara & Hall, Laurence E. Larmann, Metairie, for defendants-appellees.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

This is a suit for damages for personal injuries sustained by plaintiff as a result of an assault and battery upon him by the agents of defendant. His petition alleges the following: On August 30, 1976, at approximately 12:15 PM plaintiff opened his home in New Orleans to two delivery/service men (agents) of the defendant who were delivering a rental television set to plaintiff’s home for his use ordered from the defendant. In attempting to pay the designated fee to one agent, called Frank, plaintiff reached around Frank for his wife’s wallet which was on the coffee table in the room, and because of the location of the coffee table in the room and because of the location of the wallet, the coffee table and the position of Frank plaintiff had to make physical contact with Frank. Frank then exclaimed words to the effect “Don’t push me,” whereupon plaintiff explained that he was not pushing but only reaching for a wallet. Plaintiff, in the course of this verbal exchange, was pushed away by Agent Frank. Plaintiff informed Frank and the other agent that this was his home and he could move in any manner that was proper, adding that he did not, intentionally or otherwise, push Frank. Frank belligerently, forcefully and without provocation pushed plaintiff once more. Plaintiff told both agents to leave the premises and take the rental television set with them, offering to show them the door and suggesting that they were now considered intruders and no longer welcome in his home. Frank and the other agent, wishing to incite a violent confrontation with petitioner, refused to leave the house as directed and Frank forcefully and menacingly pushed plaintiff once again. Plaintiff, in fear of an imminent assault upon his person by the two intruders, and wishing to protect himself and in self-defense, threw a punch at Frank who blocked the punch, grabbed him by both wrists and maliciously threw him across the coffee table and to the floor. While plaintiff was attempting to raise himself he placed his right hand down on the floor, whereupon the unnamed agent stomped upon and crushed plaintiff’s hand with his foot. After this altercation both agents ran from plaintiff’s home, taking the television set with them and they drove away in defendant’s truck.

In response to this petition defendant filed an exception of no cause of action on the ground that the actions plaintiff alleged to have been committed by defendant’s employees or agents were not within the course and scope of its employment or in furtherance of their employer’s business. From a judgment maintaining the exception and dismissing his suit plaintiff has appealed.

This case is indistinguishable from Walters v. Sentry Insurance Company, 354 So.2d 1087 (La.App. 2nd Cir. 1978), in which a judgment maintaining an exception of no cause of action was reversed on the basis of Miller v. Keating, 349 So.2d 265 (La.1977) and LeBrane v. Lewis, 292 So.2d 216 (La.1974). These cases clearly demonstrate that the issue of the employer’s vicarious liability for a battery of an employee on a third person depends on the circumstances of the case and is not an issue which lends itself to disposition by an exception of no cause of action.

Defendant relies on Gautreau v. Davis, 350 So.2d 268 (La.App. 4th Cir. 1977), writs refused, 352 So.2d 236, 237 and Strawder v. Harrall, 251 So.2d 514 (La.App. 1st Cir. 1971). Significantly these cases were both tried on the merits so that the reviewing courts were able to consider the facts and circumstances in deciding the issue of vicarious liability.

Defendant argues that the tortious act alleged in the petition to have caused plaintiff’s injury was the agent’s act of stepping on plaintiff’s hand and that this act was surely not in furtherance of defendant’s business. We cannot read the cases of Miller v. Keating, supra, and LeBrane v. Lewis, supra, as allowing an isolation of the ultimate tortious act from all of the circumstances surrounding and leading up to it in order to determine the issue of the employer’s vicarious liability.

We adopt the following language of our brethren on the Second Circuit in Walters v. Sentry Ins. Co., supra, as dispositive of the issue before us:

“Plaintiff’s allegations here show the battery may have been incidental to a business contact between customer and employee; the store clerk was required to answer a customer’s questions about the price of merchandise. If the evidence shows the battery arose out of a purely personal matter between plaintiff and the employee, the employer would not be vicariously liable. See LeBrane, supra. However, the question of the employer’s ultimate liability is not now before us. In maintaining plaintiff’s petition when we can reasonably do so, we afford the plaintiff an opportunity to present evidence to prove the employer’s liability. See Haskins v. Clary, 346 So.2d 193 (La.1977).”

Accordingly the judgment appealed from is reversed, defendant’s exception of no cause of action is overruled, and the case is remanded to the trial court for further proceedings. The costs of this appeal are assessed against defendant. Assessment of all other costs is deferred until the case is concluded.

REVERSED AND REMANDED.


text:
    J. Bradley OUBRE v. Marshall HINCHMAN.
    No. 9510.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Writ Refused Dec. 14, 1978.

      John L. Diasselliss, III, LaPlace, for J. Bradley Oubre, Sr., defendant in reconvention-appellee.
    Jack N. Rogers, Baton Rouge, for Marshall Hinchman, plaintiff in reconvention-appellant.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

This ease is before us on appeal after denial of a reconventional demand for damages for wrongful seizure.

The fact situation is as follows:

On January 9, 1976, J. Bradley Oubre, appellee in this action, filed a petition to collect past due rent from Marshall Hinch-man, the appellant, in the amount of $366.00. A writ of sequestration was issued at the request of Oubre authorizing the seizure of “furniture and other movable property contained in the leased premises at 1017 First Street, Norco, Louisiana, including the house trailer in the yard.” The seizure was executed by the sheriff on January 15, 1976 at the premises which Hinch-man held as lessee. On January 23, 1976, Hinchman paid Oubre $400.00, receipt of which is shown in the record. On January 30, 1976, Hinchman obtained release of his property by posting a surety bond in the amount of $600.00.

Hinchman then answered the suit and reconvened for damages for wrongful use of the writ of sequestration on the grounds of excessive seizure and seizure of exempt material. On the day assigned for trial, the court dismissed the main demand since neither Oubre nor his counsel made an appearance. The reconventional demand was later answered and tried. The court rendered judgment in favor of Oubre, dismissing the reconventional demand with no written or oral reasons assigned. Hinchman then took this appeal.

Appellant contends that a seizure of property of a value in excess of a plaintiff’s claim creates a cause of action for the defendant against whom the writ is wrongfully used under Article 3506 of Louisiana Code of Civil Procedure. This article states:

“Art. 3506. Dissolution of writ; damages
“The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.
“The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.”

Appellee, on the other hand, contends that damages can only be allowed for wrongful issuance of the writ.

Articles 3505 and 3507 read as follows:

“Art. 3505. Reduction of excessive seizure
“If the value of the property seized under a writ of attachment or of sequestration exceeds what is reasonably necessary to satisfy the plaintiff’s claim, the defendant by contradictory motion may obtain the release of the excess.”
‡ s{c
“Art. 3507. Release of property by defendant; security
“A defendant may obtain the release of the property seized under a writ of attachment or of sequestration by furnishing security for the satisfaction of any judgment which may be rendered against him.”

It is clear from the wording of these two Articles that the proper remedy for excessive seizure is through an action to reduce the excess or by furnishing security and obtaining release of the property. The latter is precisely what the appellant did in this case. There is no provision in our law whereby a person can recover damages from a creditor for a seizure unless that seizure is wrongfully issued.

Appellant also argues, however, that the seizure was wrongful in that it seized the tools of his trade. Both Civil Code Article 2705, which establishes the lessor’s privilege under which a lessor may seize movables on the leased premises upon non-payment of rent, and Louisiana Revised Statute 13:3881, the general statute on seizures, exempt tools of the trade from seizure. Damages have previously been allowed for this type of seizure. See Pope v. Spiers, 347 So.2d 1191 (La.App.1st Cir. 1977) and Cox v. Smith, 275 So.2d 459 (La.App.2d Cir. 1973).

The proper test for determining if certain items qualify as tools of the trade is found in Holt v. Flournoy, 24 So.2d 171 (La.App.2d Cir. 1945). The court stated:

“In cases of this character there is one question of prime importance, the answer to which inevitably determines the judgment, namely: Will the debtor be deprived, by the seizure and sale of the property involved, of a tool or instrument necessary for the exercise of his calling, trade or profession? There is, of course, a corollary to this question: Will the loss of the property seized prevent the debtor from continuing to follow the calling, trade or profession in which he has been engaged, and in which the particular property has been used?”

This test reduces the question to one of fact in which the circumstances of the particular case become the deciding factor.

There is substantial evidence in the record to the effect that the house trailer seized was used by Hinchman as his office in which his business telephone was located. He also kept most of the tools used in his business in this trailer.

We find that the house trailer in this fact situation was indeed a tool of the trade and, therefore, exempt from seizure. The writ, as sworn out by appellee, specifically included the house trailer in its order. Further, the evidence shows that Oubre was aware that Hinchman used this trailer as a part of his business. Since the trailer is exempt as a tool of the trade, a writ authorizing the seizure of such is wrongfully issued. We therefore feel that damages should be awarded.

The general rule in computing damages for the wrongful issuance of a writ of sequestration is stated in Talley v. Bradley, 177 So.2d 624 (La.App.3rd Cir. 1965):

“Where the sequestration has been wrongfully issued, the defendant is entitled to recover the actual damages which he sustained as a result thereof, including damages for loss of profit and loss of use of the movables sequestered. The proof to substantiate such claims of damages, however, must be clear and definite and not subject to conjecture.”

The record is void of any concrete evidence as to loss of profit other than appellant’s unsupported assertion that he lost $2,000 in income during the period of the seizure. This evidence is vague, little probative value, and does not meet the test set out above. Hinchman did, however, suffer some inconvenience in that he was forced to lay off a few employees for a short period of time and his tools were inaccessible to him. We therefore feel that damages should be awarded for loss of use of the movables sequestered in the amount of $750.00.

Attorney’s fees are proper in an action for wrongful seizure and should be awarded. Bice v. Southside Motors, Inc., 344 So.2d 78 (La.App.2d Cir. 1977) and Article 3506, supra. The award, however, must be limited to that part of the fee dealing with the reconventional demand and must exclude that part dealing with defense of the original suit. Baham v. Sutherland, 197 So.2d 345 (La.App.4th Cir. 1967). Appellant prays for an award of $1500.00. There is no evidence in the record, however, as to apportionment of the fee or the reasonableness of this amount. We feel that an award of $250.00 would be reasonable for work done on the reconventional demand.

It is therefore ordered, adjudged and decreed, that the decision of the trial court be reversed. Judgment is rendered in favor of the appellant, Marshall Hinchman, and against appellee, J. Bradley Oubre, in the amount of $750.00 with legal interest from date of the filing of the reconventional demand, together with attorney’s fees in the amount of $250.00. All costs of these proceedings in both courts to be paid by the appellee, J. Bradley Oubre.

REVERSED AND RENDERED.


text:
    AMERICAN BANK v. Wendell A. SMITH et al.
    No. 9515.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Harry R. Morgan, Luling, for plaintiff-appellant.
    Richard J. Brazan, Jr., Vacherie, for defendants-appellees.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

Though collateral issues exist, this case turns upon the correctness of a factual and legal determination by the trial court that a vehicle, subject to a chattel mortgage in favor of appellant, American Bank, was seized and held by them without recourse to law and without the owner’s consent.

Finding that no manifest error has been demonstrated in this determination, we conclude, a fortiori, that a writ of attachment against certain real property owned by ap-pellee which sought to secure a potential deficiency judgment was properly dissolved by the trial court and, thus, forms a valid basis for the assessment of reasonable damages and attorneys’ fees in connection therewith. See our opinion in Safety Finance Service, Inc. v. Nevett, 270 So.2d 260 (La.App.4th Cir., 1972).

The award of six hundred dollars in attorneys’ fees and six hundred dollars in damages seems fair under the circumstances and represents no abuse of discretion.

We conclude the answer to the appeal seeking additional attorneys’ fees should be rejected.

The judgment is affirmed, at appellant’s cost.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Woodrow STEWART v. DEPARTMENT OF POLICE.
    No. 9519.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Fine, Waltzer, Winters & Bagneris, Michael G. Bagneris, New Orleans, for defendant/appellant.
    Michael A. Starks, New Orleans, for plaintiff/appellee.
    Before SAMUEL, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Plaintiff, a training recruit of the New Orleans Police Department, appeals from a judgment of the Civil Service Commission affirming his dismissal from the department.

The Commission concluded, based on credibility, that plaintiff “had the odor of alcohol on his breath during recruit training at the firing range on January 20, 1977” in violation of article 48(b) of the Rules of the Administrator of the Department of Police.

We reject plaintiff’s contention that the department failed to carry the burden of proof necessary to support the dismissal.

Two recruits testified that they had smelled alcohol on plaintiff on the morning of January 20th. The platoon commander stated that several recruits reported that plaintiff and another recruit had been drinking on that morning. However this officer indicated he did not get close enough to plaintiff to smell his breath.

A range officer instructor stated that when he was standing in the area of plaintiff he could smell a slight odor of alcohol but could not pinpoint the odor as emanating from plaintiff. A search of plaintiff’s automobile on the day of the incident, produced a half consumed pint bottle of vodka. Ervin Tate, who also, along with plaintiff, was dismissed, implicated himself and plaintiff but repudiated that he saw plaintiff drinking the vodka but had only “assumed” Stewart had consumed the drink.

On the other hand, two witnesses stated that at twelve noon or one p. m. they did not smell alcohol on plaintiff’s breath. Another fellow recruit stated that he had been in plaintiff’s presence for most of the day and did not smell alcohol on plaintiff’s breath. Another recruit stated that he was with plaintiff after lunch and he detected no alcohol odor coming from plaintiff. Furthermore, Stewart denied he had consumed any alcohol either on the night before or the morning of January 20th.

In Sturken v. The Department of Streets, No. 9229 in a recent expression from this court, we said:

“Although the scope of our review extends to law and facts, we are reluctant to disturb a factual determination by the Civil Service Commission which has, in this case, concluded that the department failed to carry that burden of proof necessary to support its dismissal of Sturken. Though we find support in the record for the conclusion that Sturken did report to work in an intoxicated condition and, as a result, was impaired in the performance of his usual duties, we also find that the record will support a contrary finding. We feel compelled to exercise the same degree of judicial restraint as would be the case where a trial judge has reached certain factual conclusions with which we disagree but for which we find support in the record. Therefore, the judgment is affirmed.”

The evidence considered, we conclude the record supports the result reached by the Commission and the appointing authority. Accordingly, the judgment is affirmed.

AFFIRMED.

      . Copy art. 48(b) reads as follows:
      “A member shall not report for duty under the influence of alcohol or have the odor of alcohol on his breath. While off duty, a member shall not consume alcoholic beverages to the extent that his behavior becomes obnoxious, disruptive or disorderly, or which renders him unfit to report for his next regular tour of duty.”

      . John A. Moran and Donald Lee Saucier.

      . Samuel T. Palumbo.

      . Cleveland Lloyd Crawford.

      . Sgt. Donald Duke, firearm instructor and Arnold Green, Jr., the squad advisor.

      . Ricardo Gillette.

      . Johnny Singleton.


text:
    Joe B. CAPERS, Individually and as the Administrator of the Estate of his minor child, and Eric T. Capers v. The ORLEANS PARISH SCHOOL BOARD, Through its President, and the Travelers Insurance Company.
    No. 9527.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Carl J. Selenberg, New Orleans, for plaintiffs-appellants.
    Polack, Rosenberg, Rittenberg & Endom, Lawrence W. Koltun, New Orleans, for defendants-appellees.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   LEMMON, Judge.

This is a suit to recover damages sustained by a six-year old public school student who during the noon recess climbed upon and fell from a commercial-sized garbage container located against the rear fence of the school yard and away from, but accessible to, the main play area. The trial court dismissed the suit after a trial on the merits, and plaintiff (the child’s father) appealed.

Plaintiff contends that the Orleans Parish School Board was negligent in allowing hazardous objects near the play area and in failing to supervise the child properly. Plaintiffs trial exhibit shows the containers in question as follows:

There were 1,140 children enrolled in the elementary school. At the time of the accident there were 250 to 300 students in the yard, supervised by six to eight adults, including two to four teachers, an activities director, two teacher’s aids and the principal or assistant.

Tort liability is based on the existence of a duty and the breach thereof which causes damage. The standard of care for school teachers and administrators is that of a reasonable person in such a position acting under similar circumstances. Reasonable care includes protecting against unreasonable risk of injury from dangerous or hazardous objects in the school building and on the grounds.

In the present case the garbage containers were not inherently dangerous, and placement of the containers against the perimeter fence to the rear of the school building did not create a hazardous condition or expose students to unreasonable risk of injury. Indeed, plaintiff’s child could have climbed upon and fallen from many inherently safe objects inside or outside the school building. There is no duty imposed upon school teachers and administrators to fence or remove all otherwise safe objects simply because children might climb upon the objects. Partin v. Vernon Parish School Bd., 343 So.2d 417 (La.App. 3rd Cir. 1977); Taylor v. National Indem. Co., 215 So.2d 203 (La.App. 3rd Cir. 1968).

As to the duty of supervision, the Board’s employees must provide reasonable supervision commensurate with the circumstances. Here, supervision of 250 to 300 students by six to eight adults during the noon recess on fenced school grounds constituted reasonable supervision under the circumstances. Whitfield v. East Baton Rouge Parish School Bd., 43 So.2d 47 (La.App. 1st Cir. 1949). The fact that one child wandered to the rear of the yard into an area away from the normal play area does not necessarily indicate substandard supervision, especially when the area contained nothing inherently hazardous and was within the fenced school grounds.

The judgment is affirmed.

AFFIRMED.


author: LEMMON, Judge. STOULIG, Judge,

text:
    Esther Marilyn Alhadeff JACOBS v. Jerome Mark JACOBS, Rose Delaney and Jefferson Bank and Trust Company.
    No. 9531.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Constant G. Marquer, Jr., New Orleans, for plaintiff-appellant.
    Donelon, Cannella & Donelon, Thomas G. Donelon, Metairie, for defendants-appellees.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   LEMMON, Judge.

The dispositive issue in this matter is whether the ruling appealed from constitutes an appealable judgment.

Plaintiff’s petition cumulates two actions against two sets of defendants. The action against Jefferson Bank & Trust Company, allegedly brought “under the Consumer Protection Act”, sought to recover damages for embarrassment and mental anguish sustained by plaintiff in attempted collections of an overdue promissory note. When the bank failed to answer within the prescribed delay, plaintiff entered a judgment by default, and six days later plaintiff attempted to confirm the default judgment. After hearing the evidence, the trial court refused to confirm the default judgment, stating that the proof submitted was not sufficient to support the judgment sought, but the court reserved to plaintiff the right to submit further evidence at a subsequent date. Plaintiff appealed from the order refusing to confirm the default judgment.

An appeal may be taken only from a final judgment or from an interlocutory judgment which may cause irreparable injury. C.C.P. art. 2083. A final judgment is one that determines the merits in whole or in part. C.C.P. art. 1841. The judgment refusing to confirm a default judgment did not determine the merits of the case either for or against plaintiff, and therefore was not a final judgment. The judgment determined only preliminary matters and therefore was an interlocutory judgment. C.C.P. art. 1841.

Appeals are normally limited to final judgments, the purpose being to prevent piecemeal appeals from interlocutory rulings. However, the Code recognizes that a party may sustain irreparable injury if there were an absolute prohibition against review of certain interlocutory judgments prior to the determination of the merits of the case, and appeals are therefore allowed from interlocutory judgments under limited circumstances. The standard for determining whether an interlocutory judgment may cause irreparable injury is whether any error in the judgment may be corrected as a practical matter in an appeal following the determination of the merits. Feitel v. Feitel, 169 La. 384, 125 So. 280 (1929).

In the present case there is no practical deterrent to plaintiff’s raising the issue of the sufficiency of her evidence in support of her attempted confirmation at the time of an appeal after a determination of the merits. This case therefore presents no basis for variation from the policy prohibiting piecemeal appeals, and the judgment is not appealable. McElwee v. McElwee, 256 So.2d 477 (La.App. 2nd Cir. 1972).

The appeal is dismissed.

APPEAL DISMISSED.

STOULIG, J., concurs with written reasons.

STOULIG, Judge,

concurring.

I am in agreement with the result of the majority opinion for the reasons stated therein. However I disagree with the footnote. First I do not subscribe the the theory that supervisory writs and appeals are interchangeable remedies. And second, we should not consider the correctness of the trial court’s evaluation of the merits in view of the dismissal of the appeal.

      . For example, if a judgment incorrectly denies a jury trial, the aggrieved party cannot obtain practical relief by an appeal following the determination of the merits. See Wilson Sporting Goods Co. v. Alwes, 17 So.2d 382 (La.App. 1st Cir. 1944) and C.C.P. art. 2083, Comment a.

      . Because plaintiff could have applied for supervisory writs under C.C.P. art. 2201, and because this panel has necessarily inquired into the record and the ruling, we have considered treating the appeal as an application for supervisory writs. However, we find no error in an order which refuses to confirm a default judgment and to grant damages, when the evidence establishes only that a bank employee threatened to seize a mortgaged vehicle in plaintiffs possession, even though plaintiff had not signed the note and mortgage.


author: BOUTALL, Judge. REDMANN, Judge,

text:
    U. Jens LORENZ, Donald C. Pittman, C. Edward Pittman, d/b/a Building Construction Company v. PLAQUEMINES PARISH COMMISSION COUNCIL.
    No. 9537.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Writ Refused Dec. 14, 1978.
    Noble, Slaughter, Clayton & Lorenz, Rainer Lorenz, New Orleans, for plaintiffs-appellants.
    Provensal & Fitzmaurice, Sidney W. Pro-vensal, Jr., New Orleans, for defendant-ap-pellee.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

This is a case involving the right of a public governing body to waive a requirement set out in their advertisement for bids.

The facts are these: On May 20, 1975, bids were received and opened by the Plaquemines Parish Highway Engineering & Construction Agency for the construction of an access road for the appellee, Plaque-mines Parish Council. A total of ten bids were submitted, with a low bid being submitted by Barriere Construction Company. That company had, however, inadvertently omitted a bid bond from its submission of the bid, despite the fact that the bonds were required by the invitation to bid. The bond was hand delivered to the office and while the Parish Engineer was considering the bids to make recommendations to the Council. The Council, on the recommendation of the Parish Engineer, voted to waive the “irregularity” and by resolution of June 4, 1975, awarded the contract to the lowest bidder, Barriere. The difference between the lowest bid and the second lowest bid was approximately $500.00.

The appellants, the second lowest bidders, filed suit contending that it was not within the power of the Council to waive the bid bond requirement once the advertisement has stipulated that bonds were to be included. The Council filed a motion for summary judgment. The court maintained, dismissing the suit. This appeal was then taken. .

The primary purpose of the public bid laws is to protect the public against contracts entered into because of favoritism of public officials and contracts involving ex-horbitant prices. Public bidding invites competition amongst those contractors engaged in this type of business and insures that the taxpayer receives the benefit of the lowest bid. Martin v. Louisiana Stadium and Exposition District, 349 So.2d 349 (La.App.1977); D. J. Talley, Inc. v. City of New Orleans, 303 So.2d 195 (La.App. 4th Cir. 1974).

To further protect the public, the Legislature has decreed that a public body may require a bid bond as evidence of good faith of the bidder. This is contained in Louisiana Revised Statute 38:2218 which reads as follows:

“2218. Evidence of good faith
“The public entity advertising for bids for work may require the bidders to attach a certified check, cashier’s check, or bid bond for not more than five percent of the estimated price of supplies or materials, or contract price of work to be done, as an evidence of good faith of the bidder.”

This Statute is clearly permissive in nature and in no wray requires a public body to advertise for a bid bond. Appellant argues, however, that once the body does so, any bid received with a bond must be rejected to avoid infringement of the rights of other bidders.

Our attention has been directed to an opinion of the Attorney General of Louisiana, # 74-452 of 1974, which reads in pertinent part:

“It is further the opinion of this office that the bid bond and any certificate of non-collusion required should be supplied according to the practices of the body involved and failure to supply such documents at all should be grounds to reject such a bid as such items are of a very serious nature and are integral in protecting public interest. Decisions on other matters of form should not work to prejudice the public in any substantial way— especially in a situation where the lowest bid would save a great deal of money.” Opin.Atty.Gen. 1974-5, P. 41.

We are in agreement with these principles and note that in this case the bond was indeed furnished.

The issue in this case, therefore, focuses not on whether a public body may waive the requirement of a bid bond, but on whether a body may waive the procedural matter of furnishing the bid bond with the bid. Under the circumstances of this case, we feel that public bodies may do so.

The trial judge felt that the circumstances of this case, namely, that the bond was inadvertently omitted and delivered by hand on the same day, bring it under the heading of those cases in which the mere informality as to bid form must bow to the primary consideration of the public interest to which the Attorney General refers. We emphasize that there is no evidence of favoritism or fraud in the record and that the bid bond was furnished before the contract was awarded. We do not deal with a situation in which one bidder can underbid others since he knows that his price need not include a bond. See, for example, the opinion of this court in Jefferson Parish School Board v. Rowley Company, Inc., 350 So.2d 187 (La.App. 4th Cir. 1977).

Appellant relies on the cases of Toye Bros. v. City of New Orleans, 264 So.2d 768 (La.App. 4th Cir. 1972) and Sullivan v. City of Baton Rouge, 345 So.2d 912 (La.App. 1st Cir. 1976) in arguing that the lack of a bid bond is a substantial variance from what is called for in the specifications and that, therefore, the bid must be rejected. We do not believe, however, that the failure to include the bond with the bid is a substantial variance from the bid specifications where the bond is delivered by hand on the day that bids are opened and no prejudice can be shown to other bidders by this procedure.

Reasonable discretion of local governing bodies should not be set aside in absence of proof of abuse of discretion. Celestine v. Lafayette Parish School Board, 284 So.2d 650 (La.App. 3rd Cir. 1973); Toye Bros. supra. As pointed in Tide Equipment Company v. Pointe Coupee Police Jury, 312 So.2d 154 (La.App. 1st Cir. 1975), the Parish governing body has a “right to be wrong” about whether or not a bidder has substantially complied with a bid specification “as long as they do not do so unfairly”. In the absence of any fraud or unfairness, that rule is applicable here.

For all of the above reasons, the decision of the trial court dismissing the suit is affirmed. All costs of the proceeding to be paid by the appellants.

AFFIRMED.

REDMANN, Judge,

dissenting.

If a bid bond is required at all, it is the price of admission to the bidding. It is unfair to other bidders who paid the price of admission beforehand and irrevocably, to award the prize to one who did not pay the price beforehand and who would not have paid it had he not won. It is favoritism towards a bidder to let him bid and then see all other bids before he decides whether or not to post a bid bond.


text:
    Mrs. Sallie THEODORE and Wilson Theodore v. The BANK OF NEW ORLEANS AND TRUST COMPANY.
    No. 9540.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.

      Gerald P. Aurillo, Metairie, for plaintiffs-appellants.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, J. David Forsyth, New Orleans, for The Bank of New Orleans and Trust Co., defendant-appellee.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

Appellants, Sallie Theodore and her husband, appeal from a judgment maintaining an exception of res judicata filed by the appellee, The Bank of New Orleans.

Originally, the Theodores filed a suit against BNO alleging two bases of recovery: First, that BNO had improperly withheld money which belonged to the plaintiffs; and second, to recover damages for defamation for certain statements made about the plaintiffs by employees of the bank. In that suit, a number of exceptions were filed by BNO. The trial judge maintained an exception of no cause of action and dismissed the suit. Plaintiffs filed for an appeal, but the appeal was dismissed due to the fact that it was not timely filed.

Plaintiffs then filed their second suit and to this suit a number of exceptions were again filed. One of these was an exception of res judicata which was maintained by the trial judge, dismissing the second suit. It is from this decision that this appeal is brought.

The problem presented for decision is solely the propriety of the judgment maintaining the exception of res judicata. The allegations in the two suits and the demands made are identical, except that in the second suit there is an additional statement which is simply a broadening of an original allegation in the first suit. The first suit alleged that the employee of the bank made statements to plaintiffs’ former neighbors that “they . . . took some money from the bank”. The second suit merely added the statement that the plaintiffs’ ex-neighbors understood the bank employee to mean that the plaintiffs had stolen some money from the bank.

We feel that this additional allegation is insufficient to remove this cause of action from the reach of res judicata. The basis of this ground for recovery by the plaintiffs is the utterance of the words. The understanding of the neighbors is a matter of evidence or proof to be considered in determination of the meaning of these words. A judgment sustaining an exception of no cause of action aimed at the merits of plaintiffs’ demand is a basis for a plea of res judicata. Laenger v. Laenger, 138 La. 532, 70 So. 501 (1915); Bruton v. Traders & General Insurance Company, 111 So.2d 816 (Orl.La.App.1959). We therefore affirm the trial judge’s decision as to the cause of action based on defamation.

Appellants sought recovery, however, on more than one ground. It appears to us that the judgment in the first suit was incorrect in that the exception of no cause of action was directed only toward the slander based prayer for recovery. Nevertheless, the trial judge dismissed the entire suit without consideration of the second demand, which concerns the improper withholding by the bank of appellants’ money. We hold that res judicata does not bar this cause of action.

Civil Code Article 2286 reads as follows:

“Art. 2286. The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be between the same parties, and formed by them against each other in the same quality.”

In a recent decision, the Louisiana Supreme Court discussed the Civilian concept of res judicata and pointed out that it is of much more limited application than the common law rule. Sliman v. McBee, 311 So.2d 248 (La.1975). The court further clarified the scope of the Louisiana res judicata doctrine in Sewell v. Argonaut Southwest Insurance Company, 362 So.2d 758 (La.1978). In that case, the following was stated:

“The theory of civilian res judicata is that matters actually litigated and finally adjudged are presumed correct and, thus, should not be contradicted in a subsequent suit. La.Civ.Code arts. 2284-87, 3556(31); 2 M. Planiol, Civil Law Treatise, pt. 1, no. 54A(2), at 34-35 (11th ed. La.St.L.Inst.Transl.1959); Dixon, Booksh & Zimmering, Res Judicata in Louisiana Since Hope v. Madison, 51 Tul.L.Rev. 611, 617, 622 (1977). It is evident from a decree which expressly grants or rejects a thing demanded that the matter has been adjudged. A demand may also be impliedly rejected by the silence of a judgment which fails to grant the demand, provided that the matter has been actually litigated and finally adjudged so that it became an “object of the judgment.” La. Civ.Code art. 2286. Thus, when a litigant interposes a plea of res judicata, the court must examine not only the pleadings but also the entire record in the first suit, to determine whether the availability of the particular form of relief sought in the second suit was actually ruled upon. See, Dixon, Booksh & Zimmering, Res Judicata in Louisiana Since Hope v. Madison, 51 Tul.L.Rev. at 622.”

It is clear from examination of the record in the first suit that appellants’ prayer for recovery based on money improperly withheld and damages thereon was never litigated, disposed of, or “finally adjudged” in any way. We feel that barring the appellants’ suit for the money withheld would be an improper application of res judicata as developed in our Civil Law tradition. Civil Code Article 2286 simply does not extend to this case.

Under the above rules, we hereby affirm the trial judge’s action in maintaining the exception of res judicata as to the prayer for recovery on defamation and reverse as to the prayer for money improperly withheld and damages thereon. We remand the case to the trial court for further actions not inconsistent with this judgment. All costs of this appeal are to be paid by the appellee, The Bank of New Orleans.

AFFIRMED IN PART, and REVERSED IN PART.


text:
    Wess J. TASSIN and Della Tassin, his wife v. Frans J. LABRANCHE, Jr. and St. Paul Fire and Marine Insurance Company.
    No. 9544.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.

      Arnold C. Jacobs, New Orleans, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, H. Martin Hunley, Jr., New Orleans, John M. Sartin, Jr., Metairie, for defendants-ap-pellees.
    Before SAMUEL, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Plaintiffs appeal from the dismissal, by summary judgment, of their legal malpractice claim. We affirm.

By way of background, plaintiffs had retained the individual defendant, an attorney, to assert a claim for damages for injuries sustained by Mrs. Della Tassin as result of an automobile accident. The suit on plaintiffs’ behalf was met by a plea of prescription which was referred to the merits and ultimately overruled by the trial judge. After trial on the merits, a general damage award was rendered in favor of Mrs. Tassin, in the sum of $3,000.00 and a special damage award, in favor of Wess J. Tassin, her husband, in the sum of $933.21. In appealing from that judgment, plaintiffs complained of the inadequacy of the award. In answer to that appeal the defendant, in that case, reurged the plea of prescription. This court, in Tassin v. Allstate Insurance Co., 310 So.2d 680 (La.App. 4th Cir. 1975), writ refused, 313 So.2d 836 (La.), reversed the judgment of the trial court and maintained the plea of prescription. Plaintiffs’ suit was dismissed at their cost. Pending the appeal of Tassin v. Allstate, in this court, the sum of $4,450.25 (representing the amount of the general damage award, special damages and interest) was paid to plaintiffs in accordance with the trial court judgment, although that judgment was reversed on appeal at a later date.

Thereafter, the Tassins’ filed this suit alleging that defendant’s failure to timely file their earlier claim against Allstate and it’s insured for damages sustained in the automobile accident (which was dismissed on a plea of prescription in the appellate court) resulted in receipt by them, of an inadequate sum from the insurer of the automobile accident tort-feasor and an amount not commensurate with the seriousness of the damages sustained by Mrs. Tas-sin. Plaintiffs claim entitlement in this legal malpractice suit to a sum in excess of $16,000.00.

By stipulation, the record of the earlier trial, i. e., the Tassin v. Allstate Insurance Co. matter, is incorporated in the record in this appeal.

When a client sues an attorney for damages because of alleged mishandling of litigation, the client bears the burden of proving the neglect was the proximate cause of the client’s loss. It is incumbent upon the client to prove by a preponderance of the evidence, that except for negligence on the part of the attorney, the litigation would have resulted in a decision most favorable to him. Toomer v. Breaux, 146 So.2d 723 (La.App. 3rd Cir. 1962); Vessel v. St. Paul Fire and Marine Ins. Co., 276 So.2d 874 (La.App. 1st Cir. 1973). Applying the rule to our situation, plaintiff must show that the damages, sustained as a result of the automobile accident, were so inadequate as to constitute an abuse of the much discretion rule and, therefore, warrants an award in excess of the amount awarded by the trial court in the earlier litigation. Plaintiff simply has failed to carry this burden.

Following the March 10, 1971 rear-end accident, Mrs. Della Tassin, age 46, was hospitalized for eight days. She was suffering from low back pain and headaches. According to Mrs. Tassin, her activities were restricted for approximately three weeks, post accident. Although plaintiff claimed she continued under medical treatment from the date of the accident to the date of trial (September 20,1973) Mrs. Tas-sin stated she resumed housework within three weeks after the accident. She did, however, claim that because of low back pain, it was difficult to travel in an automobile for any extended period of time.

Mrs. Tassin’s treating physician, Dr. William M. Pusateri, an orthopedic surgeon, saw plaintiff in the hospital emergency room. Her complaints were of severe neck pain. Dr. Pusateri found decreased range of motion in the cervical spine and muscle spasm. During Mrs. Tassin’s hospitalization, she was placed in traction and given heat treatment, muscle relaxants and analgesics. Dr. Pusateri’s diagnosis was chronic lumbosacral strain and moderate to severe cervical strain. On an April 12, 1971 visit to Dr. Pusateri, after discharge from the hospital, Mrs. Tassin’s neck problem became asymptomatic though she continued to experience lower back pain. On the date of plaintiff’s discharge from the doctor, May 3, 1971, her back also had become asymptomatic.

Because of continued complaints of pain, plaintiff was seen again on July 2, August 10, 1971 and February 9, 1972. No abnormalities were discerned at that time and no objective symptoms were found. Plaintiff continued to complain of pain on April 17, 1972, on November 7, 1972 and April 19, 1973 visits. However, no objective findings were made.

The evidence considered from the record in the earlier case (before us by stipulation), relating to the injuries sustained by Mrs. Tassin, does not support plaintiff’s claim that the trial court’s award for general damages in the amount of $3,000.00 was so inadequate as to constitute an abuse of the trial court’s discretion. Under the circumstances, we conclude plaintiffs have failed to establish, because of the attorney’s negligence, that they were in fact damaged. See: C/M of Baton Rouge, Inc. v. Wood, 341 So.2d 1181 (La.App. 1st Cir. 1976). Plaintiff has not shown, that except for the negligence on the part of the attorney, the litigation would have resulted in a decision most favorable to the. client.

Although plaintiff’s suit was dismissed on defendant’s motion for summary judgment, the record of the earlier proceedings was incorporated in and made a part of the motion for summary judgment. The record, and particularly the medical evidence, was considered by us in this appeal. When this evidence, made a part of the record for the purpose of the motion for summary judgment, is considered, we^ conclude the trial judge properly dismissed plaintiff’s suit by summary judgment. Clearly, no genuine issue of material fact exists and defendant is entitled, as a matter of law, to a judgment dismissing plaintiff’s suit by summary judgment.

Having so concluded, the judgment is affirmed.

AFFIRMED.


author: STOULIG, Judge.

text:
    Bruce A. NEEL v. Charlotte Clements NEEL, wife of Bruce A. Neel.
    No. 9548.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Jean E. Senac, Jr., New Orleans, for plaintiff-appellant.
    Kiefer, Glorioso & Fleming, Robert F. Fleming, Jr., New Orleans, for defendant-appellee.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Appellant, Bruce Neel, has appealed a judgment awarding his divorced wife, Charlotte Neel, child support of $400 monthly for the use and benefit of their minor daughter, Michelle.

He complains the trial court erred in (1) failing to apply the jurisprudential rule that obligates a mother also to contribute to the support of her child; and (2) in fixing an award beyond the means of the father to pay-

Appellant relies on the legal principle that both mother and father share the obligation of supporting, maintaining and educating their child (C.C. art. 227). When parents divorce, each must contribute to the child’s support and maintenance in accordance with their abilities and resources. C.C. art. 231; Fellows v. Fellows, 267 So.2d 572 (La.App.3d Cir. 1972). The maintenance referred to in C.C. art. 227 is not limited to monetary contributions. In Ducote v. Ducote, 339 So.2d 835 (La.1976), the Court pointed out that the day-to-day activities a mother performs in running the family home, transporting her children and providing guidance, love and discipline are substantial contributions to their rearing and may either fully or partially satisfy the natural obligations, reiterated in the Civil Code, that are due from a mother to her child. Neither counsel disputes this to be the law.

The issue here is whether under the circumstances in this case the law warrants our relieving the father of a part of the monthly financial contribution set by the court and shifting it to the mother.

Charlotte Neel has a net income of $489.42 monthly. Bruce Neel claims a net income of $1,100 and a gross income of $1,600 per month. Of the amount withheld, $100 monthly is his voluntary contribution to his savings or retirement account. The child’s needs are itemized at $585 monthly.

In verbal reasons for judgment the trial judge indicated he thought the appellant exaggerated his monthly expenditures and lacked candor in presenting his resources. Without belaboring the point but by way of illustration, appellant testified he alone required $250 per month for food while his wife claimed she and her child could manage on $160 for this necessity. Additionally appellant itemized insurance as a monthly expense and later admitted that this amount was also included in his payroll withholdings. In effect he claimed the same item twice.

The record supports the result reached by the trial court. The cited law doés not require us to total the child’s financial needs and divide the financial obligations equally between two working parents. The mother’s income is considerably lower than that of her husband and her responsibility for the day-to-day care and maintenance contributed by her physical presence and efforts greatly exceeds that of appellant.

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

AFFIRMED.


text:
    George CRIER v. CITY OF NEW ORLEANS, New Orleans Police Department and Harry Connick, District Attorney For the Parish of Orleans.
    No. 9552.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Pitard, Pitard & Porobil, Robert F. Pi-tard, New Orleans, for plaintiff-appellant.

      Robert F. Barnard, Asst. Dist. Atty., for defendant-appellee, Harry F. Connick, Dist. Atty.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit against Harry Connick, District Attorney for the Parish of Orleans on his exception of no cause of action. In his original petition filed on June 9,1966, plaintiff alleged that he was arrested on May 7 by New Orleans Police Officers who “acted with malice and executed the arrest without an arrest warrant and without probable cause to make an arrest.” The petition further alleges that he was incarcerated and was subjected to a police lineup on May 12, with the result that he was exonerated, but the charges were not dropped until May 14. His suit was brought against the City of New Orleans and New Orleans Police Department. On November 30,1977, plaintiff amended his petition to make Harry Connick, as District Attorney for the Parish of Orleans, and the Parish itself, a defendant, by alleging that Connick and the Police Department made the arrest and acted with malice against him. Connick’s exception was based on his immunity from liability and the trial judge in maintaining the exception did so because Connick “is immune in these proceedings.”

In reviewing a judgment on an exception of no cause of action, an appellate court must take the allegations of the plaintiff as true. Haskins v. Clary, 346 So.2d 193 (La.1977). Applying this test to the instant case, we have the allegation that Harry Connick arrested and incarcerated the plaintiff and was motivated by malice against him. While such an allegation tends to tax one’s credulity, we are dealing with an exception of no cause of action and must overrule the exception and remand the case for further proceedings.

The trial judge took the position that the District Attorney is absolutely immune to a civil lawsuit, but this approach is not supported by the jurisprudence of Louisiana. In Berry v. Bass, 157 La. 81, 102 So. 76 (1924), the court indicated that a plaintiff has a cause of action against an inferior magistrate where he exercises his functions with malice. In Conques v. Hardy, 337 So.2d 627 (La.App. 3rd Cir. 1976), the court indicated that a plaintiff had a cause of action against a justice of the peace where malice was alleged and proved.

In Cerna v. Rhodes, 341 So.2d 1157 (La.App. 1st Cir. 1977), plaintiff brought suit against a district attorney and his suit was dismissed after a trial on the merits. The court there noted that an element of proof in a malicious prosecution suit against the district attorney is malice on the part of the defendant. Although the issue of prosecu-torial immunity was not discussed in the opinion, in his concurrence with the denial of writs by the Supreme Court at 343 So.2d 1067, Justice Tate subscribed to the theory of absolute prosecutorial immunity set forth by the Supreme Court of the United States in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

The Imbler case does support the trial judge’s disposition of the instant case as follows:

“We conclude that the considerations outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.”

Despite Justice Tate’s apparent subscription to this view we find no expression of our Supreme Court as a whole which confers absolute immunity on a district attorney from suit for malicious actions on his part.

Finally, we emphasize that this case is based on an allegation by the plaintiff that Harry Connick actually did the arresting and incarceration of plaintiff with malice, and while it is difficult for us to imagine the district attorney performing such acts we have no alternative but to overrule the exception of no cause of action. Other procedural devices than the exception, such as a motion for a summary judgment, might be more appropriate for use by the District Attorney in this case to bring about an expeditious dismissal of the suit.

The judgment appealed from is reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.


author: STOULIG, Judge. LEMMON, Judge,

text:
    LOUISIANA NATIONAL BANK OF BATON ROUGE v. Errol J. HEINDEL.
    No. 9557.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Camp, Carmouche, Palmer, Barsh & Hunter, David B. Spencer, Metairie, for plaintiff-appellant.

      Jacob L. Karno, Metairie, Robert A. Cap-lan, New Orleans, for defendant-appellee.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiff, Louisiana National Bank of Baton Rouge, filed suit for an unpaid Bank-Americard account claiming defendant, Errol J. Heindel, owed $357.53, together with $21.48 interest, plus 25% attorney fees on both the principal and interest. After suit was filed (July 20, 1977) but before service of citation on defendant (August 7, 1977), a check for $379.01, drawn on “Jacob L. Karno-A Professional Law Corporation Trust Account”, was received and negotiated by one of plaintiff’s agents. On its face the maker wrote “Payment in full on Errol J. Heindel # 4623 805 000 309”. Arguing the issuance and depositing of this check constituted an accord and satisfaction which estopped plaintiff from claiming further on this account, defendant pleaded the exception of res judicata which the trial court maintained. Plaintiff has appealed.

Accord and satisfaction is one of the modes by which an obligation is extinguished, thus it is one of the affirmative defenses to a claim that must be specially pleaded. (C.C.P. art. 1005.) The objective of C.C.P. art. 1005 in requiring that the answer set forth affirmative defenses is to preclude opposing counsel from being taken by surprise at the time of trial and to afford him an opportunity to meet the issues raised by the special defense. However, it does not mean that affirmative defenses may only be raised by way of an answer. In Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3d Cir. 1967), the court concluded that in some instances an affirmative defense can also serve as the basis of the peremptory exception of res judicata.

Usually res judicata is based on a final judgment. C.C. art. 2286 states: “The authority of the thing adjudged takes place only with'respect to what was the object of the judgment. * * * ” (Emphasis ours.) C.C. art. 3078 extends the effect of res judicata to “transactions * * * between the interested parties * *

If in this case the parties agreed to compromise their differences, the exception of res judicata is valid. The negotiated check then must satisfy the requirements of C.C. art. 3071, which defines a compromise thus:

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

The issue here is whether the parties did “ * * * adjust their differences by mutual consent * * * ”, as evidenced by the negotiated check, and whether that written instrument is a valid compromise that creates an estoppel based on accord and satisfaction.

For accord and satisfaction to occur, a debtor must tender payment to a creditor in full satisfaction of a disputed claim, and the creditor in turn must accept the tender. Pontchartrain Park Homes v. Sewerage & Water Bd., 168 So.2d 595 (La.1964); Berger v. Quintero, 170 La. 37, 127 So. 356 (1930). As in any other contract, acceptance of the offer must be an informed consent. Charles X. Miller, Inc. v. Oak Builders, Inc., 306 So.2d 449 (La.App. 4th Cir. 1975). Whether the creditor was fully informed of the nature of the compromise offered by the tender must be determined by the circumstances. In the Charles X. Miller case we pointed out that a check with a restrictive endorsement deposited in the ordinary course of business cannot serve as the basis of a plea of estoppel by accord and satisfaction if the creditor should not reasonably have become aware of the restriction. The offer of compromise must be explicit.

The pleadings and exhibit before us fail to establish that an offer of compromise in the form of a restrictively endorsed check was accepted by a creditor fully informed of the import of its tender. We note defendant, before being served with a copy of the petition, retained counsel to defend this claim. The record fails to reflect to whom tender of the check was made, whether to the attorney of record or the bank directly (in all probability the latter). Nor does the record contain a letter of transmittal by the attorney to the bank or its attorney explaining the nature of the tender, if one was written. While it appears the defense of accord and satisfaction would not lie, it is possible these questions could be answered by evidence adduced at a trial on the merits.

Suffice it to say the record in this matter is insufficient to sustain the affirmative defense of accord and satisfaction by the peremptory exception of res judicata. The doctrine of res judicata is stricti juris; in case its applicability is in doubt it will not be applied. Eugene v. Ventress, 253 La. 840, 220 So.2d 94 (1969); Tucker v. New Orleans Laundries, Inc., 238 La. 207, 114 So.2d 866 (1959); Hancock v. Lincoln American Life Insurance Co., cited supra.

For the reasons assigned, the judgment appealed from is reversed and this matter is remanded for further proceedings consistent with the views herein expressed. All costs are to await the final disposition of this matter.

REVERSED AND REMANDED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge,

concurs and assigns reasons.

Although Civil Code has specific provisions governing compromises, the common law concept of accord and satisfaction has crept into Louisiana cases over the years. However, it is unnecessary to use this doctrine to decide cases governed by specific codal provisions.

Compromise is a contract. C.C. art. 3071. To prove a compromise as the basis for an exception of res judicata, the party urging the exception has the burden of proving that the parties intended to enter into a contract of compromise and mutually consented to adjust their differences and put an end to their dispute. This burden is not met by showing that a debtor, in the ordinary course of business and without additional contact or notice, simply mailed a check to a creditor with a barely noticeable inscription regarding payment in full.

      . The court in Hancock v. Lincoln American Life Insurance Co., 278 So.2d 561, 563 (La.App. 1st Cir. 1973), stated:
      “It is well settled that litigants may put an end to a lawsuit by adjusting their differences by mutual consent evidenced through a written transaction or compromise. LSA-C.C. art. 3071. Such a transaction or compromise has, between the contracting parties, a force equal to the authority of things adjudged. LSA-C.C. art. 3078 * *


text:
    Richard E. SCANLAN v. BERNARD LUMBER CO., INC. and International Ins. Company.
    No. 9621.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.

      Montgomery, Barnett, Brown & Read, Wood Brown, III, New Orleans, for defendants-appellants.
    Denis A. Barry, II, New Orleans, for plaintiff-appellee.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff was found to be disabled and was awarded a judgment for maximum workmen’s compensation benefits against defendants. In their appeal, defendants have limited the issue to whether the plaintiff suffered or sustained an accident within the intendment of the Workmen’s Compensation statute.

Plaintiff was employed by defendant on August 6, 1970, until June 16, 1976. In 1974 he underwent a laminectomy but his recovery was good and he resumed full-time employment as a mill superintendent early in 1975. On May 1, 1976, the employees of the company went on strike with the result that management and supervisory personnel had to run the mill. At this point plaintiff’s job involved heavy manual labor whereas his regular job as superintendent did not involve such duties. After several days of this heavy labor plaintiff began to suffer from pain in his back which increased in severity until June 16, 1976, when he was unable to return to work.

The medical evidence confirms that this heavy work caused his disability but there is no evidence as to a single traumatic event which precipitated his condition.

In his reasons for judgment the trial court stated:

“From these facts the Court concludes the plaintiff sustained an accident within the meaning of that term as used in the amended Workmen’s Compensation Statute. There was no sudden, unforeseen incident which alone produced objective symptoms of injury. This was not a long term development of some industrial disease; on the contrary, the activity (during the strike) produced pain almost from the outset arid ended within a matter of a few weeks . . . ” (emphasis added)
“ . . . This man did not have a single incident or a single accident. He had a whole series of accidents every time he picked up a heavy timber, loaded it onto and off a delivery truck, fed it into a planer, or shaper or saw or other mill machinery; this whole series of (to him with his high pain threshold) minor accidents cumulatively produced his disabling injury.”

The Workmen’s Compensation law provides benefits for an employee who is disabled because of an on the job accident. LSA-R.S. 23:1031. R.S. 23:1021(1) provides the following definition:

“ ‘Accident’ means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.”

Defendants point to that portion of the trial judge’s reasons which we have emphasized above as an explicit finding that plaintiff did not have an “accident” under the plain wording of the statute. However, the emphasized portion of the trial judge’s findings cannot be isolated from the rest of his findings, and these as a whole are consistent with recent jurisprudence on the subject.

Most recently, this court in Gales v. Great Atl. & Pac. Tea Co., 342 So.2d 241 (La.App. 4th Cir. 1977), writs refused, 343 So.2d 1077, held that the term “accident” is to be given a liberal interpretation, and,

“While no specified impact type accident appears to have been suffered by Mr. Gales, his body most certainly received great trauma each and every time it was exposed to the extreme in temperature to which he was subject in his employment. The performance of the usual and customary duties of his employment contributed to his physical breakdown.”

The Gales case followed from Parks v. Insurance Co. of North America, 340 So.2d 276 (La.1976) and Chism v. Kaiser Aluminum & Chemical Corp., 332 So.2d 784 (La.1976). See also, Byrer v. Southern Baptist Hosp., Inc., 350 So.2d 1233 (La.App. 4th Cir. 1977).

Finally, defendants contend that the legislature’s failure to amend the definition of accident in the statute despite the plethora of amendments to the Workmen’s Compensation law in general is equivalent to a reiteration of the definition of accident and a mandate to the courts to apply the definition literally. We see no merit to this argument since it is equally plausible that the legislature’s refusal to change the definition of accident is tantamount to its approval of the interpretation which has been placed on the definition by the courts.

The judgment appealed from is affirmed.

AFFIRMED.