author: BOUTALL, Judge.

text:
    CITY STORES COMPANY (MAISON BLANCHE DIVISION) v. GERVAIS F. FAVROT CO., INC.
    No. 8313.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.

      Guste, Barnett & Shushan, William M. Barnett, New Orleans, for plaintiff-appellant.
    Baldwin, Haspel, Molony, Rainold & Meyer, Robert R. Rainold, New Orleans, and Smith, Currie & Hancock, Bert R. Oastler and Frank E. Riggs, Jr., Atlanta, Ga., for defendant-appellee.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment homol-ogating, with minor amendment, an award of an arbitration panel determining amounts due on three building contracts to the contractor, Gervais F. Favrot Co., Inc., from the owner, City Stores Company.

The parties entered into three construction contracts involving a warehouse and retail store in the City of New Orleans. The first contract was executed on March 8, 1972 and covered construction of the building and an area up to 5 feet from its outside perimeter. On August 17,1972, the parties executed a second contract for performance of site work on the facility, much of which had been completed on the date of execution. On June 1, 1973 the parties confected a third contract for work already completely performed on an additional site, called “Parcel Q” which had been acquired subsequent to the first agreement. The second and third contracts incorporated by reference the General Conditions and Specifications of the first contract. However, the first contract obviously did not refer to the other two, nor was it amended to incorporate their provisions by reference.

The contracts were based on a “cost plus” method of payment with a guaranteed maximum price, subject to cost increases occasioned by work changes initiated by the owner during construction. The construction employed the “fast track” method, used for speed of beginning and completion and, in theory, for economy. When this method is used, the owner supplies the contractor initially with uncompleted contract drawings and specifications, upon which the contractor is entitled to rely, and the obligation is placed on the owner to complete the drawings and specifications in a manner consistent with the initial documents used by the contractor to begin construction.

The basic dispute between the parties arose around the claims of the contractor beyond the contract price and whether the project should be considered as one overall project or three separate projects.

The owner contended the contractor failed to keep its cost records separate on the three contracts and co-mingled its expenditures in spite of the owner’s request for separate billings. The contractor allegedly submitted claims for cost overruns which fluctuated from $145,000 to $580,000 and failed to provide adequate supporting data to allow the project architect to issue a certificate of payment in accordance with the contract documents. Between 75 and 100 separate work items were involved in the contractor’s claim.

The contractor contended the later drawings and specifications submitted by the owner contained numerous changes, additions, and deletions from the original documents furnished it, and that it was requested to forego formal change orders in favor of a determination of all amounts due for extra work at the conclusion of construction.

After numerous conferences between the owner’s architect and representatives and the contractor’s representatives, the parties were unable to resolve their dispute. The contractor then filed a formal demand for arbitration with the American Arbitration Association pursuant to a contractual arbitration clause. The demand requested arbitration under the first contract dated March 8, 1972, but the “Claim for an Equitable Adjustment” presented to the arbitrators October 15, 1974 contained all of the claims for the entire project. The owner answered these claims and presented some of its own, and timely objected to the arbitration procedure. The arbitrators eventually made an award based on work performed on the entire project under all three contracts.

Before the arbitration hearing started, the owner filed a declaratory judgment suit in the district court alleging the disputes between it and the contractor were not arbitrable in nature and requested injunc-tive relief. The district court denied a preliminary injunction, and this court affirmed because the preliminary injunction question became moot when the arbitration proceeding was completed prior to the hearing of the preliminary injunction question in this court. This court stated there was sufficient evidence to support the trial court’s finding the contract between the parties contained an arbitration clause, but made no decision on the question of arbitrability of the dispute. After deciding the narrow issue of the moot request for a preliminary injunction, the case was remanded for further proceedings. The issue of arbitrability remains undecided.

After the arbitration award in favor of the contractor was rendered, the owner then filed this suit in which this appeal has been taken to modify, correct or vacate the award of the arbitration panel. R.S. 9:4210 and 4211. This has created a procedural issue. This proceeding was allotted to another division of the trial court, and it was not consolidated with the first proceeding. A trial date was set, but the trial judge set it aside on his own motion. The matter was reset for hearing approximately 6 months later, still without benefit of a decision on the question of arbitrability. The trial court then proceeded to hear the matter, modified the arbitrator’s award on the date from which the interest began to run, and homologated the award as thus amended. The owner has appealed from that judgment and the contractor has filed an answer to that appeal.

We first proceed to the determination of the procedural issue. The appellant contends that the trial court erred in failing to vacate, correct or modify the award of the arbitration panel because the award was made prior to a final determination of the arbitrability of the matters upon which the panel acted, and that the question of arbitrability is still pending trial in the first suit between these parties. It should be noted that the first suit was not brought under the provisions of R.S. 9:4203 where a party aggrieved by the refusal of another to perform under a written agreement for arbitration may petition the court for an order directing that the arbitration proceed, nor was it the type of proceeding encompassed in R.S. 9:4202. The first suit was a declaratory judgment suit brought by the owner seeking to declare what issues are subject to arbitration, and contained within it ancillary proceedings for a preliminary and permanent injunction to prevent arbitration. The owner was refused a preliminary injunction to enjoin arbitration, and on appeal to this court, the matter of a preliminary injunction was declared moot because arbitration had already concluded. As far as the record on this appeal shows, the merits of that case have never been determined, and we cannot see any sound basis for concluding that this untried case should stop all proceedings conducted within the provisions of the Louisiana Arbitration Law.

In effect, what appellant is urging is that although he has been refused a preliminary injunction to stop the arbitration proceedings from going forward, nevertheless because the merits of that case have not been tried, it acts as an automatic injunction which would prevent the arbitration award from becoming effective. We have already noted that the trial judge below continued the present case for the purpose of affording a determination in the first case, and none apparently was forthcoming. This lack of action certainly cannot be granted the same effect as the preliminary injunction sought for and denied therein.

The Louisiana Arbitration Law provides a remedy to solve such a procedural difficulty. R.S. 9:4210 permits an aggrieved party to apply to the court for an order vacating the award under Subsection (C) when the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or of other prejudicial misbehavior or under Subsection (D) where the arbitrators exceeded their powers. Additionally the following section, § 4211, provides for an order modifying or correcting awards under Subsection (B) where the arbitrators have awarded upon a matter not submitted to them. A reference to the pleadings in this case shows that the issue of arbitrability was put at issue in plaintiff’s petition, and in view of those pleadings and the applicable law referred to above, we cannot see any relevancy to the pendency of that first suit concerning arbi-trability. If we were to consider this issue under any other theory, we would defeat the expeditious resolution of disputes by arbitration which is the primary goal of the Louisiana Arbitration Law.

A related issue to this procedural issue is whether the arbitration panel exceeded its authority in arbitrating upon all matters concerning the entire project, or should it have been restricted only to those claims which arose under the primary contract dated March 8, 1972 as distinguished from the later two contractual documents involving site work and work on “Parcel Q.” Since the original demand for arbitration only mentioned that first contract, the owner contends that arbitration should have been restricted only to that contract, and claims arising under the other contracts or arising as a result of extra work could not be considered by the arbitration panel.

We do not consider the simple demand for arbitration to be controlling of the matters placed before that body. The formal document presented in connection with that letter of demand was a document of many pages detailing the entire relationship between the parties with specificity and pointing out, depending upon groupings and subgroupings, some one hundred claims. The owner, although objecting, responded with answers to these claims and put forward claims on its own. It is apparent from the record the reason why the contractor initially mentioned only the first contract, was because it considered as the work progressed under the scheme agreed to by the parties that the work on the original contract encompassed some of the site work necessary and that the subsequent “Parcel Q” work arose naturally out of the method of procedure agreed upon. It is noted that the site work was considerably accomplished during the existence of the work on the prime contract and prior to the formalized signing of the second contract. The work on “Parcel Q” was actually completed some 2 months prior to the signing of that formal contract. The testimony of the witnesses produced by the contractor shows that the contractor treated these 3 contracts as simply one project. The testimony of the members of the arbitration panel shows that all of the matters were considered by them and that the 3 different contracts were considered as a group or as one project. Each item was vigorously and diligently contested by the owner and there is no complaint of lack of time or notice such as to prejudice its defense. We agree with the position of the arbitration panel and the trial judge that the entire matter was properly before the arbitration panel, and not beyond their authority.

Appellant owner further argues to us that the trial judge erred in affirming the award because it was prevented an opportunity to determine the existence vel non of miscalculations by the arbitrators of sums allegedly due. The arbitration proceeding was taken by a court reporter, however, some time subsequent to the award, it was learned that the court reporter’s notes were mistakenly destroyed, and there is no record of all of the testimony and other proceedings before the panel. At the trial in the district court, the members of the arbitration panel were produced as witnesses, and they testified as to the procedure they used in arriving at the award. The claims were taken up individually, and each arbitrator noted for his own purposes the result he felt proper on each claim. Either at the end of that day’s hearing or at a later convenient time, the arbitrators held a conference in which they discussed the individual claims and arrived at a composite decision. The final award was based upon the total of these individual claims, some to be added in favor of the contractor, and some to be deleted or otherwise credited in favor of the owner. Their evidence convinces us that the amounts were checked and rechecked in consultation with each other and there is no evidence of any miscalculations.

Another issue on this appeal is the fixing of legal interest in the award. The date of the award was March 10, 1975 and the award was in favor of the contractor in the amount of $616,086.18 with legal interest from June 1, 1973. The testimony was that the June 1st date was chosen by the panel because the panel believed that beneficial occupancy of the premises occurred April 1, 1973, and assuming the contract was unrecorded, the sixty day period for filing liens would have expired on June 1. Therefore the panel reasoned the owner would have been required to pay the entire amount due. The trial court amended the award of interest decreeing it “shall be at the rate of seven (7%) percent per annum from March 10,1975 until paid.” The court reasoned that the issue of interest due was dependent upon Article 1938 of the Civil Code of Louisiana, and the sum certain that was due the contractor did not become known until March 10 when the award was made by the arbitrators. We agree with the trial judge. The nature of these contracts, and the circumstances surrounding their execution convinces us that the first date that a certain figure could be ascertained was the date of the award by the arbitrators. The record shows that there had been a number of varying demands for different amounts due, together with great difficulty in presenting supporting documents to substantiate these demands. Dependent upon the validity of these demands, both by the contractor and by the owner, and the determination that the contractor was entitled to recover beyond the price guaranteed in the contract, the owner was justified in not paying the retainage. The performance of the contract did not proceed according to the original estimates, and stretched out over a very long period of time causing a long delay in occupancy by the owner. A number of the claims involved which party should bear the additional costs of these delays. Thus it was only after the arbitration panel considered these matters and rendered an award that a sum certain could be reached. Applying C.C. Article 1938, we agree that the interest should run from March 10, 1975.

The final issue before us is the timeliness of the award of the arbitrators. Appellant points out to us that Rule 40 of the American Arbitration Association Rules provides that an award shall be made not later than 30 days from the date of the closing of the hearing. It contends that the timeliness is governed not by the date on which the award is signed, here within 30 days, but upon the date of delivery of the award to the parties as provided by Rule 44, which provides legal delivery of the award is the placing of it in the mail, which took place one day later. The record shows that the three arbitrators lived in different cities and that the formal award had been signed and forwarded to each, prior to the postdated date of March 10, and by that date all three had signed. We conclude this is compliance with the rules and that the date of mailing is not controlling of the timeliness of the award.

For the reasons discussed above, we affirm the judgment appealed at appellant’s cost.

AFFIRMED.

      . See City Stores Co. v. Gervais F. Favrot Co., Inc., La.App., 315 So.2d 370, writs denied, La., 320 So.2d 557.


source: Caselaw Access Project

author: LEMMON, Judge. BEER, Judge,

license: Public Domain

text:
    SCARIANO BROTHERS, INC. v. Harold BACKHAUS, d/b/a Harold’s Meat Market.
    No. 8345.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 30, 1978.
    Meunier, Martin & Meunier, Marcel J. Meunier, Jr., New Orleans, for defendant-appellee.
    Kronlage, Dittmann & Caswell, Samuel E. Schudmak, III, New Orleans, for plaintiff-appellant.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

This is a garnishment proceeding. Plaintiff, the seizing creditor, has appealed from a judgment dismissing its rule which demanded, among other things, that the court render judgment against “Canal Boulevard Supermarket, and its owner, Anthony Caruso”, as garnishee, for the amount due by the judgment debtor because the garnishee failed to withhold any wages after being served with the supplemental petition for garnishment and accompanying interrogatories.

The issue is whether Anthony Caruso was ever made a garnishee.

I

Plaintiff had obtained a judgment against Harold Backhaus. On March 26, 1975 plaintiff filed a supplemental petition for garnishment, praying that “Canal Boulevard Supermarket, through its agent for service of process” be made garnishee. The sheriffs return shows service on “Canal Blvd. Supermarket — in person — T. A. Caruso, owner”. Answers to the garnishment interrogatories were filed on behalf of “Canal Boulevard Supermarket” by the same attorney who had represented the employee-judgment debtor, as “Attorney for Garnishee”, and that attorney collected the fee provided by statute for doing so. The answers acknowledged the debtor’s employment and stated that the debtor owed the employer a debt for an advance on his wages which was being collected weekly from his salary. The answers were verified by “A. J. Caruso, owner of Canal Boulevard Bell Supermarket”, who merely attested to the correctness.

Thereafter, plaintiff filed a “Rule to Show Cause and Rule to Traverse Garnishment Interrogatories” and later a second supplemental petition for garnishment, both of which were directed to “Canal Boulevard Supermarket” and did not mention Anthony J. Caruso. No responsive pleadings were filed to either of these pleadings.

On May 11,1976 (approximately the same time the judgment debtor filed bankruptcy proceedings) plaintiff filed the rule at issue in this appeal, naming “Canal Boulevard Supermarket” as defendant-in-rule, but praying for judgment against “Canal Boulevard Supermarket, and its owner, Anthony Caruso”. The rule was personally served on Caruso. The trial court dismissed the rule, after being informed that Canal Boulevard Supermarket is the trade name of a proprietorship operated by Anthony J. Caruso and concluding that Canal Boulevard Supermarket was neither a corporation nor a person and was “therefore a legal nonentity”.

II

Seizure under garnishment becomes effective upon service of the petition, citation, and interrogatories. C.C.P. art. 2411. Seizure in a garnishment of wages includes both accrued and future earnings. R.S. 13:3923. By virtue of the seizure the garnishee becomes legal custodian of the wages and holds them subject to future orders of the court. Sun Sales Co. v. Hodges, 256 La. 687, 237 So.2d 684 (1970).

The determinative issue in the present case — whether Anthony Caruso was ever made a garnishee — depends upon whether there was a seizure of the debtor’s accrued and future wages that ever became effective as to Caruso.

The supplemental petition for garnishment did not seek to make Caruso the garnishee. He was never cited to answer any pleadings, and he was never issued a notice of seizure or an order to withhold any wages. See C.C.P. art. 2412. And neither the supplemental petition for garnishment, the interrogatories, the order or the citation notifies the party attempted to be made garnishee that a seizure is thereby effected.

Garnishment of future wages is a harsh exception to the general law of seizures, and strict compliance with the garnishment statute is required of the seizing creditor. We hold that under the circumstances of the present case seizure (which becomes effective under the statute only upon service of the petition, citation and interrogatories) has never taken effect against Anthony Caruso.

Finally, plaintiff contends that Caruso waived any objection to lack of service or defective service when he answered the garnishment interrogatories.

Generally, a defendant can waive objections to jurisdiction over the person by making a general appearance and thereby submitting himself to the jurisdiction of the court so that the court can render a personal judgment against the defendant. C.C.P. art. 6, 7. However, we have serious doubt that an employer sought to be made a garnishee, who has not been served with petition, citation and interrogatories, waives the requirements of C.C.P. art. 2411 for effectiveness of seizure by filing answers to the interrogatories. Nevertheless, Caruso did not file any answers to interrogatories; he merely attested to the correctness of the answers filed by an attorney on behalf of “Canal Boulevard Supermarket”.

Accordingly, the judgment of the trial court is affirmed insofar as the rule against Anthony Caruso was dismissed.

AFFIRMED.

BEER, J., dissents and assigns reasons.

BEER, Judge,

dissenting.

Scariano Brothers, Inc. obtained a judgment against Harold Backhaus for $3,460.50. Thereafter, a petition with attached garnishment interrogatories was directed to “Canal Boulevard Supermarket, thru its agent for service of process 5381 Canal Blvd., New Orleans, La.” The petition, citation and interrogatories were served upon “Canal Blvd. Supermarket in person to A. Caruso, owner.” Canal Boulevard Supermarket, through its attorney, filed answers to the interrogatories sworn to by “A. J. Caruso, owner of Canal Boulevard Bell Supermarket,” and signed “A. J. Caruso.” The answer to interrogatories stated, “I have no funds on hand belonging to Harold Backhaus” and, further, “He (Mr. Backhaus) receives a salary of $143.00 net per week out of which I have to deduct $30.00 per week to apply against a $560.00 indebtedness due me for advance draw against his wages.” The attorney for Canal Boulevard Supermarket made the usual motion for attorneys’ fees as provided for by R.S. 13:3927. Scariano Brothers, Inc. filed a rule to traverse the answers to interrogatories and sought to determine the status of the debt allegedly owed by Backhaus to Canal Boulevard Supermarkets and, thereafter, filed a rule to fix wages subject to the garnishment. Subsequently, Scariano Brothers, Inc. sought judgment against the garnishee, Anthony Caruso, who was cited and served at the same address as Canal Boulevard Supermarket.

The trial court dismissed the rule and the motion for judgment, stating:

“1) all purported seizures and garnishments herein were issued against ‘Canal Boulevard Supermarket’ which is neither a corporation nor a person, and is therefore a legal non-entity against which a judgment cannot be rendered (C.C.P., Art. 736); and
2) Mr. Caruso was never personally sued, never cited, never ordered to seize or withhold wages, and was never otherwise made a party. Hence, all purported garnishments and seizures with regard to Canal Boulevard Supermarket and Anthony Caruso are null and void ab initio, and the rule and motion for judgment thereunder is hereby dismissed, each party to bear its own costs.”

Scariano devolutively appeals and, by subsequent stipulation between counsel for the parties, the issue before us was restricted as follows:

“In the context of this case was H. A. Caruso (sic), also known as Anthony Caruso, owner of Canal Boulevard Supermarket and/or Canal Boulevard Bell Supermarket, made garnishee herein.” (Emphasis mine.)

Appellee argues that Canal Boulevard Supermarket is a nonentity against which no judgment can be rendered, citing LSA-C.C.P. Art. 736. Appellant contends that Caruso, operating under the trade name “Canal Boulevard Supermarket,” effectively answered the interrogatories and is, essentially, estopped from contending that there are technical grounds for the relief he seeks.

The record indicates that the same attorney who represented the original defendant, Backhaus, filed all of the pleadings in behalf of the garnishee, Caruso and Canal Boulevard Supermarket. Those pleadings, including the answers to interrogatories, are not only signed by the attorney for the garnishee but verified, under oath, by A. J. Caruso, who affirms that he is “owner of Canal Boulevard Bell Supermarket” and that the answers to the interrogatories are true and correct. In his motion seeking payment of the fee as provided by R.S. 13:3927, counsel for Canal Boulevard Supermarket acknowledges that Canal Boulevard Supermarket has been “made garnishee herein” and has filed an answer to the interrogatories.

It is apparent from the record that A. J. Caruso is the owner of Canal Boulevard Bell Supermarket, does business as Canal Boulevard Bell Supermarket or Canal Boulevard Supermarket, and answered the garnishment interrogatories (under oath) in that capacity.

Though not entirely on all fours, I am influenced by Cobb v. Bergeron, 244 So.2d 126 (La.App.1st Cir., 1971). On the other hand, LSA C.C.P. Art. 736, which contemplates procedural capacity (or lack thereof) of a proprietorship doing business under a trade name, does not, in my view, form a basis for that entity to escape the otherwise orderly operation of the judicial process when it is either the author or the willing participant in the alleged confusion by which it thereafter seeks to exculpate itself. The same comments are applicable to LSA-C.C.P. Art. 2412.

Within the confines of the single issue which we were to address as the result of the stipulation between counsel, I conclude that H. A. Caruso, also known as Anthony Caruso, owner of Canal Boulevard Supermarket and/or Canal Boulevard Bell Supermarket, was made garnishee herein. Based upon this finding, I would reverse the judgment of the Civil District Court for the Parish of Orleans and remand this matter for further proceedings not inconsistent with this opinion. I reach no conclusion as to whether any amount is due Scariano Brothers, Inc. from Caruso. This amount (if any) should be left to the determination of the trial court when it applies the provisions of LSA-C.C.P. Art. 2411, et seq. to the facts of this case.

Accordingly, I respectfully dissent.

      . Although the parties state that answers were filed to interrogatories attached to a second supplemental petition for garnishment, there are no further pleadings in the record by Caruso or Canal Boulevard Supermarket.

      . This was the first time that Caruso was mentioned in any of plaintiff’s pleadings.

      . In the Sun Sales case the seizing credit did not file for a judgment against the garnishee until two years after service of the petition, citation and interrogatories. The court disregarded the delay in obtaining the garnishment judgment and held the garnishee liable for wages not withheld after the seizure. The dissenting justice, noting that garnishment of future wages was a harsh exception to the general law of seizure, voted to construe the void in the law in favor of the garnishee, who “is a forced middleman collector and benefactor without compensation for the creditor, the debtor, and the courts”.

      . C.C.P. art. 736 provides that a person doing business under a trade name is the proper defendant in an action to enforce an obligation created by or arising out of the doing of such business. The comment following states that the article legislatively overrules Rea v. Dow Motor Co., 36 So.2d 750 (La.App.2nd Cir. 1948), which held that suit brought against the owner only in the trade name was sufficient to justify rendition of judgment against the owner.
      By analogy we hold that a petition for garnishment of future wages brought only in the trade name is not effective to make the owner a garnishee.

      . Plaintiff relies on the case of Cobb v. Bergeron, 244 So.2d 126 (La.App.1st Cir. 1971), in which Harold Marks, d/b/a Marks Automotive Discount Center, was named as garnishee, and he answered the interrogatories admitting defendant’s employment. On appeal he argued that defendant was employed by Harold Marks Automotive Discount Center, Inc., of which he (Marks) was president, and that the corporation should have been named garnishee, since he had never done business as a sole proprietorship.
      The Cobb case is distinguishable in that Marks was a person capable of being sued, and the court rendered a judgment against him by virtue of service upon him and by his appearance in the suit as an individual. Marks simply answered the interrogatories incorrectly and, as an individual, should have denied defendant’s employment.

      . At approximately that same time, Backhaus filed bankruptcy proceedings and was adjudicated a bankrupt.


author: SAMUEL, Judge. LEMMON, Judge, PER CURIAM.

text:
    Succession of Joseph J. PALERMO.
    No. 8383.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.
    Harold H. Wedig and John M. Coman, Jr., New Orleans, for plaintiffs-appellants.
    Zelden & Zelden, Max Zelden and Bruce Kingsdorf, New Orleans, for defendant-ap-pellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   SAMUEL, Judge.

This is an appeal taken by legatees from a judgment denying their petition and motion to traverse a detailed descriptive list filed by the executrix, decedent’s widow. The disputed items are savings and checking accounts in a savings and loan association and two banks which are listed as gifts to her by the decedent. The pertinent facts involved in this appeal were stipulated and the matter was submitted to the trial court and to this court on that stipulation. Those facts are:

The decedent died May 22, 1974 in a hospital where he had been confined for approximately six days. By statutory will he left the naked ownership of his entire estate to appellants, subject to a 'usufruct over the estate to his wife. The disputed items listed as gifts to Mrs. Palermo are $10,000 in an account with the Dryades Savings & Loan Association in the joint names of Mr. or Mrs. Palermo, $1,948 in a savings account in the National American Bank in the names of Mr. or Mrs. Palermo, $6,689.97 in checking and savings accounts in the First National Bank of Commerce in the name of Mr. Palermo and $6,593.01 in another account in the Dryades Savings & Loan Association.

On May 20, 1974, Mrs. Palermo withdrew the $10,000 on deposit with the Dryades Savings & Loan Association and the $1,948 in the savings account in the National American Bank. In accordance with a power of attorney executed by decedent on May 20, 1974 the $6,639.97 in checking and savings accounts in the First National Bank of Commerce was transferred to a new account in that same bank in the name of Mrs. Palermo and on the same date a check in the amount of $3,000 was drawn on this new account and later cashed. On May 22, 1974 Mrs. Palermo withdrew the $6,593.01 in the other account in the Dryades Savings & Loan Association.

Also according to the stipulation, if the appellant and the sister-in-law and brother-in-law of the decedent were to testify under oath they would state that for several years prior to his death he had indicated he desired his wife to have all the cash he had either in his name or in their names jointly in the above accounts; that he later repeated this statement and at that time physically gave to his wife the Dryades savings accounts passbooks and all documents in connection with the savings account in the National American Bank.

Decedent’s wife contends she is the owner of all the cash in these accounts because the gift of the savings account passbooks and other mentioned documents is a valid manual donation of corporeal movables, which takes effect upon physical delivery without other formality. Appellants argue the gift of a passbook representing a savings account and similar documents is a gift of an incorporeal thing, or things, which requires an act before a notary public and two witnesses.

The controlling law is set forth in Civil Code Articles 1536, 1538, and 1539, which provide:

“An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.” LSA-C.C. Art. 1536.
“A donation inter vivos, even of movable effects, will not be valid, unless an act be passed of the same, as is before prescribed.
Such an act ought to contain a detailed estimate of the effects given.” LSA-C.C. Art. 1538.
“The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.” LSA-C.C. Art. 1539.

Our settled jurisprudential law is that an account on deposit in a bank is an incorporeal thing, a credit, and a valid donation of such an account requires compliance with the provisions of the above quoted Article 1536 of the Civil Code.

If an account on deposit in a bank is an incorporeal which requires the execution of a notarial act before two witnesses, there is no valid reason for making a distinction between such an account and an account on deposit in a savings and loan association. No such distinction was made by the Supreme Court in Broussard v. Broussard. In that case the defendant husband received a cash settlement from personal injuries sustained by him prior to his marriage, and on the same day purchased two “certificates of deposit” in both their names from a bank. Six months later the bank certificates were cashed and the funds were used to purchase savings certificates from a savings and loan association, which were also in the names of both husband and wife. Among other reasons for holding the husband did not make a valid donation of half the amount of each certificate to his wife, the court pointed out accounts on deposit are incorporeal rights which may be donated only by notarial act in compliance with Civil Code Article 1536.

In the present case, even accepting as a fact that the decedent expressed his intention of giving the entire proceeds of the bank and savings and loan accounts to his wife and actually made physical delivery of the documents evidencing ownership of the accounts to her, accounts in banks and savings and loan associations are incorporeal rights, which can only be the object of a donation executed before a notary and two witnesses pursuant to Article 1536. Hence, the manual, donation of the passbooks and other documents was not an effective donation and the amounts involved must be returned to the corpus of the succession.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment in favor of the plaintiffs-appellants and against the defendant-appellee. Accordingly, it is ordered that the sum of $25,180.98 be added as succession assets to the detailed descriptive list of all items of property belonging to the Succession of Joseph J. Palermo. It is further ordered that this matter be remanded to the trial court for further proceedings in accordance with law and not in conflict with the views expressed herein.

REVERSED AND REMANDED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurs and assigns reasons.

Since the assets were in the form of credits (which are incorporeal things and not susceptible of manual gift) at the time of the attempted donation, the donation was invalid for lack of form. A tougher question would have been presented if the evidence established that decedent, after some of the credits were converted to cash, had expressed his desire for his wife to have this cash, without physically handing the cash to her. But this case does not present the issue of whether a “manual gift” under C.C. art. 1539 can be validly accomplished by the donor stating donative words and the donee receiving from a third party’s hand the thing susceptive of manual delivery. The necessity for the donor to physically hand the thing to the donee, although argued in the briefs, is not the basis for the decision in this case.

ON REHEARING

PER CURIAM.

We adhere to our original opinion and decree, but hand down this per curiam for the purpose of answering an alternative contention made by the appellant in her application for rehearing.

The alternative contention referred to is that appellant had issued a check in the amount of $3,000 out of the $6,639.97 in the checking account in the National Bank of Commerce (after she had changed that account from Mr. Palermo’s name to hers); that this sum of $3,000 was in payment of some of decedent’s medical expenses; and that, accordingly, $3,000 should be subtracted from the $25,180.98 which our decree adds to the succession assets.

In addition to a photostatic copy of the $3,000 check in question, the only evidence contained in the record relative to that check or its use is in the joint stipulation of fact. The copy of the check and the stipulation show and state only that the check was made payable to “cash”, was cashed by Katherine C. Grivas (a sister-in-law of the decedent), and the only reference to medical expenses is a notation in the lower left corner of the check reading “For Medical expenses”.

The notation referred to is self serving. As the record contains no evidence whatsoever that the $3,000 check was in fact used to pay decedent’s medical expenses, and as the burden of making such proof was on the appellant, we cannot hold that the $3,000 was used as contended.

Accordingly, the application for a rehearing is denied.

APPLICATION FOR REHEARING DENIED.

      . Vercher v. Roy, 171 La. 524, 131 So. 658; Succession of Housknecht, 135 La. 818, 66 So. 233; Basco v. Central Bank & Trust Company, La.App., 231 So.2d 425; Succession of Grubbs, La.App., 170 So.2d 256; Bordelon v. Brown, La.App., 84 So.2d 867; Northcott v. Livingood, La.App., 10 So.2d 401.

      . La., 340 So.2d 1309.

      . Civil Code Articles 460, 474.

      .We note that cash and checks have long been considered proper objects of a manual donation under Civil Code Article 1539. See Menard v. Muhs, La.App., 196 So.2d 536, and cases cited therein.


author: BOUTALL, Judge. LEMMON, Judge,

text:
    Succession of Margaret R. Moustier, widow of Louis R. MOUSTIER.
    No. 9525.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 30, 1978.
    F. Clegg Strong, New Orleans, for American Cancer Society.
    Otto B. Schoenfeld, New Orleans, for Monastery of St. Joseph and St. Teresa of the Discalced Carmelites of New Orleans.
    Wood Brown, Patrick J. Browne, New Orleans, for the Gulf States Eye Foundation.
    Charles A. Snyder, New Orleans, for Congregation Temple Sinai.
    Lambert, Nowalsky & Lambert, John D. Lambert, Jr., New Orleans, for executor.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   BOUTALL, Judge.

Appellees, residual legatees under the will of Mrs. Margaret R. Moustier, have filed a motion to dismiss an appeal taken by John D. Lambert, executor of the succession, on the ground that the executor has no appealable interest as executor and that his appeal is contrary to the provisions of Code of Civil Procedure, Article 2084, which provides as follows:

“Legal representative may appeal
“A legal representative may appeal any appealable judgment rendered against him or affecting the property which he is administering, for the benefit of the person whose property he administers or whom he represents, whenever he considers an appeal necessary or advisable.”

The facts are that decedent left a will naming John D. Lambert executor of the estate and naming John D. Lambert, Jr. as attorney for the estate and executor. The executor filed a final accounting in which he proposed the payment of $40,000 as the fee of the attorney for handling the succession matters. Opposition to the account was filed by four residuary legatees, all charitable organizations, seeking a reduction in the amount of the attorney’s fees. The trial court reduced the amount of attorney’s fees to $15,000, and the executor has appealed.

It is the contention of appellees that Article 2084 only gives the executor the right to appeal judgments for the benefit of the person whose properties he administers or whom he represents, in that in taking this appeal, the executor is proceeding contrary to the benefit of the estate inasmuch as the appealed judgment was one of reduction of the claimed fees. In view of the line of jurisprudence supporting their proposition, we agree that the executor has no standing to take this appeal. We refer specifically to the cases of Succession of Roque, 175 La. 323, 143 So. 277 (1932); Succession of Henderson, 113 La. 101, 36 So. 904 (1904) and Succession of Trouilly, 52 La.Ann. 276, 26 So. 851 (1899). In each of these cases the Supreme Court of Louisiana has denied the right of an executor to appeal from similar judgments. We also note the decisions in the case of Succession of Hartigan, 51 La.Ann. 126, 24 So. 794 (1898) wherein the executor was denied the right to appeal on behalf of creditors appearing in his accounts and for his own individual claims, a proposition confirmed in the Succession of Vatter, 191 La. 875, 186 So. 597 (1939).

It is contended by the executor that these cases are no longer valid law since the adoption of the Code of Civil Procedure, which has granted to the executor much broader authority. Specific reference is made to C.C.P. Article 685 and 734 which recognized the succession representative as the proper party plaintiff and defendant in actions relating to the deceased’s rights or obligations and to C.C.P. Articles 3249 and 3196 which grant succession representatives authority to exercise all procedural rights available to a litigant. We readily concede that there have been vast changes in the authority of the succession representative in relation to suits involving the succession, but we note no particular change in the appellate authority granted in C.C.P. 2084. The Official Revision Comments notes that while this article broadened the language of Article 572 of the Code of Practice of 1870, it actually made no change in the procedural law of Louisiana since it was merely declaratory of the judicial interpretation of that article. The general authority granted in the Code of Civil Procedure as to the right of the succession representative to bring or defend suits involving succession matters generally, must be considered as limited in appeals by the specific provisions of Article 2084.

Accordingly, we conclude that the executor in his official capacity does not have the authority under Article 2084 to bring this appeal, and his appeal is dismissed.

The motion to Dismiss the Appeal is maintained and the appeal is dismissed.

LEMMON, Judge,

concurs in denial of application for rehearing and assigns reasons.

I agree that the executor cannot properly appeal from a judgment reducing a creditor’s claim against the succession based on an opposition filed by heirs or legatees. However, unless the creditor is made a party to the opposition, the judgment maintaining the opposition arguably can have no binding effect on the creditor’s claim; and if the creditor is made a party to the opposition, he is the proper party to appeal from the judgment.


author: REDMANN, Judge. PER CURIAM.

text:
    LANDIS CONSTRUCTION CO., INC. v. HEALTH EDUCATION AUTHORITY of Louisiana.
    No. 8757.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 30, 1978.
    Joseph E. Friend, Dodge, Friend, Wilson & Spedale, New Orleans, for plaintiff-ap-pellee.
    George G. Kiefer, Kiefer, Glorioso & Fleming, New Orleans, for defendant-appellant.
    John A. Stewart, Jr., New Orleans, for Associated General Contractors of La., Inc., amicus curiae.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   REDMANN, Judge.

A construction contract between a business corporation and a governmental agency contained a stipulation for arbitration of disputes. Neither the corporation’s nor the public agency’s resolution authorizing the contract included express authority to stipulate for arbitration. On this appeal from a judgment ordering the public agency to arbitrate, we hold that the contractual stipulation for arbitration was not authorized by either party to the contract and is therefore unenforceable.

“[T]he power [of attorney] must be express . . . [to] refer a matter to arbitration.” La.C.C. 2997. Even the power to compromise “does not include that of submitting or referring to arbitrators.” C.C. 2998.

The trial judge reasoned that apparent authority or ratification (by having arbitrated an earlier dispute) should bind both parties. We disagree. The Civil Code does not permit implied authority to bind to arbitration. Neither pre-contract actions nor a post-contract submission of one dispute constitutes “express” authority to manda-taries to bind either the corporation or the public agency to future arbitration of disputes.

Reversed at plaintiff’s cost.

ON APPLICATION FOR REHEARING

PER CURIAM.

Amicus curiae shares plaintiff’s misapprehension of the facts. No resolution by either plaintiff or defendant authorized signing of this contract, or of any “contract as a whole”, or even of a “contract in the A.I.A. form” (which contains an arbitration clause “as boilerplate”).

A resolution authorizing a corporate officer to sign some specific entire contract, either described in or attached to the resolution, would constitute authorization by the corporation for the delegated signer to bind the corporation to every clause of that contract. But a general authority by resolution to “sign contracts” or the like does not constitute the necessary special authority to the signer to bind the corporation to arbitrate. Much less does a resolution (like defendant’s here) which specifies many provisions to be contained in the contract but is silent on arbitration.

Rehearing is refused.


author: REDMANN, Judge. LEMMON, Judge, GULOTTA, Judge,

text:
    Eleanor Bordelon, wife of Warren BORDELON v. SENTRY INSURANCE COMPANY et al.
    No. 8920.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearings Denied June 30, 1978.

      Gasper J. Schiro, New Orleans, for plaintiffs-appellees.
    James S. Thompson, Porteous, Toledano, Hainkel & Johnson, New Orleans, for Reserve Ins. Co., Toye Bros. Yellow Cab Co. and Walter Moore, defendants-appellants.
    Before REDMANN, LEMMON, GULOT-TA, SCHOTT and GARSAUD, JJ.
   REDMANN, Judge.

Defendants appeal from a judgment fixing personal injury quantum upon their admission of liability. They complain of the trial judge’s expressly including within the injuries an ear drum perforation (described as “old” by the only medical witness who saw it at the time of the accident) and a knee injury (a torn meniscus, requiring surgery, that did not appear until 42 months after the accident).

The knee injury could, one doctor testified, have been caused by the accident. This testimony is neither self-contradictory- or otherwise so implausible as to require rejection. The trial judge could therefore believe it and we cannot substitute our credibility evaluation for his; Canter v. Koehring Co., La.1973, 283 So.2d 716.

The ear drum perforation, however, is not attributed to the accident by anyone except plaintiff, and even plaintiff testified that no doctor has related the perforation to the accident. The only medical evidence from the time of the accident is to the contrary. Thus the inclusion of the perforation as an injury from the accident was error.

The trial judge gave the perforation prominence in his reasons for judgment, and his $15,000 award includes damages for the perforation and loss of hearing (and presumably for the later hospitalization and tympanoplasty). If he had itemized the award, we would be obliged to delete the amount attributable to the ear. The award is not itemized, but our obligation remains to delete the award for the ear despite the difficulty of determining its amount.

The principal other injury was that to the knee, although there were several minor items. We estimate that about a third of the $15,000 award is attributable to the ear perforation and we would therefore reduce quantum to $10,000 on defendants’ appeal,

Plaintiff’s answer sought increase in quantum. However, following Coco v. Winston Ind. Inc., La.1977, 341 So.2d 332, we would leave undisturbed a $15,000 award for all the injuries found by the trial judge. That amount is within his “much discretion”, C.C. 1934(3) and we would not increase it. We decrease it only because it included damage not attributable to the accident.

Amended in principal to $10,000; costs of appeal to be equally divided.

LEMMON, J., concurs and assigns additional reasons.

GULOTTA, J., dissenting.

LEMMON, Judge,

concurring.

There are two reasonable approaches to the appellate court decision in a case where a trial court specifies the injuries on which an award is based, without itemizing the amount awarded for each injury, and the evidence fails to support a conclusion that one or more of the injuries is related to the accident.

One reasonable approach would be to accord no weight whatsoever to the trial court’s award. Under that approach the appellate court would proceed to fix the award as if the trial court had rendered a judgment in favor of defendant on liability. The shortcoming of this approach is that the award fixed by the appellate court might be the same as, or either higher or lower than the award in the judgment from which the appeal was taken.

The second reasonable approach is the one taken in this case, which is to accord some weight to the award of the trial court if that award would be in the range of the trial court’s much discretion had causation of all specified injuries been proved. Under this approach the total award is simply reduced by some proportionate amount reasonably attributable to the one or more injuries which were not proved to be causally related to the accident.

I prefer the second approach because the fixing of an award for damages for personal injuries is and should be a function of the trial court. Furthermore, if the first approach were used so that no weight whatsoever would be accorded to the award set by the trial court, and the appellate court set an award which was higher than that originally set by the trial court, then the defendant who took the appeal based on the erroneous finding of causation would in effect be told by the appellate court that his victory on appeal is going to cost him more money. This could hardly be considered an equitable result.

GULOTTA, Judge,

dissenting.

I dissent.

Although I am in agreement with the majority that no causal connection was established between the accident and the eardrum perforation and resulting hearing loss, I do not find the $15,000.00 award to be excessive. Irrespective of the absence of causation with regard to plaintiff’s ear condition, the nature and extent of plaintiff’s other injuries (a torn ligament of the left ankle requiring a six weeks’ cast; a torn cartilage of the knee resulting in a 5% disability of the lower extremities; a sprained right ankle requiring elastic wrapping; a lumbar sprain; contusions of the right shoulder; the presence of a foreign body in the right wrist, causally connected to the accident and scheduled for surgical removal; and generally multiple contusions and abrasions) are such that the $15,000.00 award is warranted.

These injuries were sustained in an automobile accident in which plaintiff was thrown from the taxicab in which she was a passenger. Shortly after the accident, plaintiff lost consciousness and received emergency treatment at Charity Hospital.

Under the circumstances, I would affirm the judgment of the trial court.


author: LEMMON, Judge.

text:
    Henry BOYD v. COMMUNITY CENTER CREDIT CORPORATION and Andressie J. Boudreaux.
    No. 9165.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.

      Philip R. Johnson, Richard P. Massony, New Orleans, for plaintiff-appellant.
    Michael H. Bagot, John H. Gniady, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   LEMMON, Judge.

Plaintiff has appealed from a judgment dismissing his defamation action against his former employer, a loan company, and its president, A. J. Boudreaux. The issue is whether plaintiff’s evidence establishes the essential elements for recovery in this type of action.

I

While the petition alleged numerous acts by defendants, the sole evidence presented was the fact that Boudreaux, after discharging plaintiff and in response to a request from the Department of Employment Security for information regarding plaintiff’s eligibility for unemployment compensation benefits, completed the required form, in part, as follows:

Boudreaux testified that he completed the form by hand, placed the document in an envelope, and mailed it himself. There was no evidence that the statement was communicated to anyone but Department employees, who were bound to keep the information confidential under penalty of fine or imprisonment.

II

We base our decision on the defense of qualified privilege, which we conclude was applicable under the circumstances of this case. Under this defense certain statements, which might otherwise be deemed defamatory, are protected from an action for defamation if the circumstances of the communication show an underlying public policy incentive for according the protection. In effect assertion of a qualified privilege constitutes a rebuttal of the allegation of malice.

The interest of public welfare and social necessity dictate that an employer not be unreasonably restricted when he is required to furnish information necessary for the state agency to determine in a quasi-judicial proceeding a terminated employee’s eligibility for unemployment compensation benefits. The party furnishing the information must be free to make a complete and unrestricted communication, without fear that he will be held liable for defamation if the good faith communication turns out to be inaccurate, subject to the requirement that the communication be made in good faith, be relevant to the subject matter of the inquiry, and be made to a person with a legitimate interest in the subject matter. Madison v. Bolton, 234 La. 997, 102 So.2d 433 (La.1958); McGowen v. Prentice, 341 So.2d 55 (La.App. 3rd Cir. 1976).

In the present case Boudreaux was required to furnish information on the circumstances surrounding plaintiff’s termination for use in a quasi-judicial proceeding. He did so in reasonable, relevant and non-malicious language, to the proper official and in a proper manner. If defamatory at all, the communication was conditionally privileged, and the defense is applicable under the circumstances of this case.

Defendants’ demand, by answer to the appeal, for damages for a frivolous appeal is rejected, since there is no basis for disbelieving the sincerity of the plaintiff as to his legal position.

The judgment is affirmed, Costs of appeal are assessed to plaintiff.

AFFIRMED.

      . See R.S. 23:1660.
      This statute is also a basis for defendants’ contention the document was inadmissible. Because we otherwise rule in favor of defendants, we need not reach this contention, but we note that the fact of Boudreaux’s making this statement was proved by his admission, irrespective of whether the document itself was admitted. Of course, the admissibility of the information contained in the document is closely related to the privilege issue, discussed later.

      . Boudreaux’s statement is incomplete in the document (which is an additional ground for exclusion from evidence, since an allegedly defamatory communication must be considered in context). However, the partially clipped-off document contained a statement that plaintiff flatly refused to follow instructions, and Bou-dreaux further testified that plaintiff consistently made loans in excess of his authority and made unauthorized salary advances to employees in violation of express rules.


author: DOMENGEAUX, Judge. CUTRER, Judge,

text:
    Clifton STAPLETON, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    No. 6411.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Writ Refused July 3, 1978.

      Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendant-appellant.
    Craven & Scott, Samuel H. Craven and John W. Scott, Alexandria, for plaintiff-ap-pellee.
    Before CULPEPPER, DOMENGEAUX, WATSON, FORET and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation suit filed by Clifton Stapleton against Travelers Insurance Company, which was the workmen’s compensation insurer of plaintiff’s employer, Javeler Construction Company (hereinafter Javeler). After a trial on the merits, judgment was rendered in favor of the plaintiff finding him entitled to compensation for total and permanent disability. Defendant has appealed from that judgment and plaintiff has answered the appeal.

The accident, which resulted in this suit being instituted, occurred on September 10, 1976. Plaintiff sustained a back injury while working as a superintendent at his employer’s job site in the State of Mississippi. Defendant was paid benefits under Mississippi’s workmen’s compensation laws at a rate of $84.00 per week from the date of the accident through February 14, 1977. Compensation was discontinued based upon two reports of an examining physician. Suit was filed on March 18, 1977, and served on March 21, 1977. The petition seeks total permanent disability payments at a rate of $95.00 per week under the workmen’s compensation laws of the State of Louisiana, plus penalties and attorney’s fees. A preference trial date was set for April 4, 1977, in an order attached to the petition. On the date set for the trial, the defendant had not filed an answer. After hearing, a preliminary judgment was entered under the provisions of La.R.S. 23:1316, which awarded benefits in the amount of $95.00 per week for permanent total disability plus medical expenses, penalties, and attorney’s fees. On April 11, 1977, defendant filed an answer. On April 14,1977, defendant filed a petition to annul the preliminary judgment. This was denied. Trial on the merits on April 20,1977, resulted in a judgment stating that plaintiff’s accident was compensable under the Louisiana Workmen’s Compensation Law and declaring plaintiff totally and permanently disabled. Plaintiff was awarded the sum of $95.00 per week from September 10, 1976, for an indefinite time in the future, subject to credit for payments already made. The trial court judgment made no mention of penalties and attorney’s fees.

Defendant alleges two assignments of error on the part of the trial court: (1) that the trial court erred in applying the “Extraterritorial Coverage” provision of La.R.S. 23:1035.1(1), which would allow plaintiff to recover under the Louisiana Workmen’s Compensation Act; and (2) that the trial court erred in failing to set aside the preliminary judgment rendered on behalf of plaintiff. Plaintiff, in answer to the appeal, asks that the judgment be modified to award penalties and attorney’s fees.

APPLICABILITY OF LOUISIANA LAW

The first question for disposition is whether the workmen’s compensation claim in this case should be determined according to the law of Louisiana or whether the compensation law of Mississippi applies.

This issue presents an initial interpretation of a 1975 amendment to the Louisiana Workmen’s Compensation Law entitled “Extraterritorial Coverage.”

By Act 583 of 1975, the Louisiana Legislature enacted La.R.S. 23:1035.1(1), legislatively setting forth the circumstances under which our workmen’s compensation laws should be given extraterritorial effect. La.R.S. 23:1035.1(1) provides:

“(1) If an employee, while working outside the territorial limits of this state, suffers an injury on account of which he, or in the event of his death, his dependents, would have been entitled to the benefits provided by this Chapter had such injury occurred within this state, such employee, or in the event of his death resulting from such injury, his dependents, shall be entitled to the benefits provided by this Chapter, provided that at the time of such injury
‘(a) his employment is principally localized in this state, or
‘(b) he is working under a contract of hire made in this state.’ ”

Prior to the 1975 legislation, the jurisprudence of this State was generally to the effect that recovery could not be allowed under the Louisiana Workmen’s Compensation Act for disability occurring as a result of an accident occurring outside the state unless the contract of employment was entered into in the State of Louisiana. Forman v. Deaton, Inc., 347 So.2d 911 (La.App. 3rd Cir. 1977); Gray v. Decker, 229 So.2d 156 (La.App. 2nd Cir. 1969); Woodham v. Travelers Insurance Company, 161 So.2d 368 (La.App. 3rd Cir. 1964), writs denied, 246 La. 88, 163 So.2d 360; Sparks v. Pyburn Drilling Company, 276 So.2d 406 (La.App. 2nd Cir. 1973).

It appears that the 1975 legislation changes the jurisprudential rule by adding an additional ground for applying Louisiana’s workmen's compensation laws to an employee’s out-of-state injuries. We interpret this legislation to mean that Louisiana’s workmen’s compensation laws can be applied to injuries suffered by an employee while working outside the territorial limits of this state when (1) his employment is principally localized in this state, or (2) he is working under a contract of hire made in this state.

The trial court found that although “plaintiff was rehired in Texas as established by the records,” he contracted to work in Louisiana, which would make this a Louisiana contract from its inception. He also concluded that the original contract of hire was reformed when plaintiff was transferred from Louisiana to Mississippi since plaintiff was a resident of Louisiana and Javeler had its principal office in Louisiana. We agree with the trial court that Louisiana law applies, but for different reasons.

The evidence establishes that plaintiff was employed by Javeler or its corporate predecessor as a dragline operator from 1971 until June 20, 1975. He had performed work in Florida, Georgia, Louisiana, and Texas. He terminated his employment on the latter referred date due to the fact that he felt that he wouldn’t be able to continue to perform the strenuous duties of operating a dragline much longer due to his age. He wanted employment of a less strenuous nature. He worked at other employment in Texas from June 20,1975, until his re-employment by Javeler in August, 1975.

Plaintiff was a Louisiana resident, at least from 1971 to the time of the accident on September 10,1976. He resided in Jena, LaSalle Parish, Louisiana. He retained his home and telephone there, he voted in that parish, and he was covered by the homestead tax exemption. In the course of his employment, however he moved from job site to job site in various states.

The employer, Javeler, was a Florida corporation, but had moved its entire operations to Lafayette, Louisiana, in July of 1975. It was engaged in heavy construction with specialty in dragline excavation. It bid on such jobs in the states of Florida, Georgia, Mississippi, Louisiana, and Texas, and frequently secured them. Both before and after the time that plaintiff became a superintendent with Javeler, and continuing until the time of the accident, Javeler’s center of operations was in Lafayette, Louisiana. All payroll checks were issued from there, and all construction reports were sent there.

During August of 1975, after numerous telephone conversations with plaintiff, Vil-lere Cross and Leslie Cross, president and vice-president, respectively, of Javeler, went to plaintiff’s temporary apartment in Texas City, Texas, to discuss in detail the employment of plaintiff as a superintendent for Javeler. This meeting entailed a description of the job title as well as a discussion of the responsibilities, authority, and duties of plaintiff in the capacity of superintendent. They offered plaintiff $350.00 per week as salary and $250.00 per month as living expenses. The plaintiff took one or two days to think about the offer and then met Leslie Cross in Freeport, Texas, near Texas City, where plaintiff told Cross that he accepted the offer to work as superintendent of Javeler and agreed to report for work on August 24,1975. On the latter date he reported for work as superintendent at a Javeler job site in Corpus Christi, Texas, in order to wind up that operation. He continued his work there until October 27, 1975. He then proceeded to a Javeler job site near Baton Rouge, Louisiana, where he worked as superintendent until January 27, 1976, on which date he once again proceeded to a Javeler job site in Mississippi in the same capacity. He worked in Mississippi from the latter date until September 10, 1976, the date of the accident.

We feel that the statutory phrase “employment is principally localized in this state” is quite broad. Under the rule that the Workmen’s Compensation Act is to be liberally construed to provide benefits for injured employees, that phrase is sufficiently broad to cover plaintiff’s situation. The 1975 amendment indicates the intention of the legislature to broaden workmen’s compensation coverage on out of state accidents. Although when the plaintiff became superintendent with Javeler, there was an understanding that he would act in that capacity wherever Javeler had work going on, nevertheless, Javeler, at that time, was anticipating two Louisiana dragline operation jobs. One did not materialize. However, shortly after plaintiff assisted Javeler in concluding its Texas work, the operation was moved to a job site near Baton Rouge, Louisiana. The totality of the circumstances causes us to conclude that the plaintiff’s employment is principally localized in Louisiana.

It is a coincidence of time and circumstance that at the time the accident occurred, plaintiff had worked two months in Texas, eight months in Mississippi, and three months in Louisiana. It appears to us that the mere quantity of time an employee works in any single locale where, as here, the job is such as to require moving to job sites in any of a number of areas, is not the controlling factor in a determination of the principal localization of employment, although, in some circumstances, it may be persuasive. The critical factor in this determination is the employee’s base of operations, i. e., the center from which he works.

Both parties understood that the job would carry no permanent assignment to any particular state. The job in Mississippi was a temporary assignment. Mr. Staple-ton’s salary was paid from Lafayette. His work vehicles were registered and licensed in Louisiana. He filed weekly job reports to the Louisiana office. Mr. Stapleton was paid travelling expenses from his Louisiana home to the job site and he was given a living expense while away from his home. Each of these expenses were paid from the Louisiana office. Mr. Stapleton received his job assignments, whether in Mississippi, Louisiana, or Texas, from the Louisiana office. Under these facts and circumstances, we think it clear that plaintiff’s employment was principally located in Louisiana.

We feel that the second alternate condition of the statute is also met. Based on the case of Williams v. Travelers Insurance Company of Hartford, Connecticut, 19 So.2d 586 (La.App. 1st Cir. 1944), plaintiff at the time of his accident was working under a contract of hire made in Louisiana. In Williams, the court dealt with an employee who was a resident of Louisiana. He was a pine lumber inspector whose job duties took him to many states. He had been hired by a Louisiana firm while he was in South Carolina. He then remained in South Carolina for training purposes. Thereafter, the employee worked in several states, but never in Louisiana. While performing his work duties in Illinois' for his employer, he was accidentally fatally injured in an auto accident.

Our First Circuit ruled the Workmen’s Compensation Act of Louisiana to be applicable and subsequently writs to the Supreme Court were refused on December 13, 1945.

The reasons for the Williams ruling were manifold. Citing Corpus Juris Secundum, the Court acknowledged that:

“a contract is considered as entered into at the place where the offer is accepted, or where the last act necessary to a meeting of the minds or to complete the contract is performed.”

Further quoting, the Court observed:

“The place where a contract was made is to be determined in accordance with the intention of the parties.”

With this in mind, the Court ruled that in determining what law to apply to a contract “both the place of performance and the place of making have to be taken into consideration,” but “neither is conclusive, and the question rests on the intent of the parties as disclosed by the whole of the contract.” (Italics added.)

In Williams, as in the present case, the contract was oral and unwritten. Therefore, the Court ruled that intent must be determined “from the circumstances surrounding the particular transaction . . Such factors as the nature of the work to be done, the place of performance, the domicile of the parties, etc., must be considered. McKane v. New Amsterdam Casualty Co., 199 So. 175 (La.App. Orl. Cir. 1941), writ denied, March 3, 1941.

In Williams, the principal office of the employer was in Louisiana. The employee considered Louisiana to be his home and place of residence. His salary, expenses, and insurance premiums were paid from- the Louisiana office. Although he worked out of state, job reports were repeatedly made to the Louisiana office. With these factors in mind, Louisiana law was found applicable in Williams. These factors, and more, are likewise present in Mr. Stapleton’s circumstances.

We feel that the intent of plaintiff and Javeler was to have the oral contract considered as having been entered into in this state. Javeler, the employer, does not contest this conclusion. Originally, in 1971, Javeler hired plaintiff while both parties were physically within Louisiana. In 1975, when Mr. Stapleton left Javeler for a brief two months, Javeler continuously attempted to keep him as an employee. These repeated negotiations began almost the moment Mr. Stapleton quit work. When Mr. Stapleton was finally rehired, one of the reasons was to undertake two dragline assignments in Louisiana. In Mr. Stapleton’s words, “We were concentrating on Louisiana at that time.” Upon being rehired, he returned shortly thereafter to Louisiana to undertake his work. He never returned to Texas for work purposes. The fact that plaintiff and the two Cross brothers were in Texas when they finalized the employment relationship is merely a coincidence of time and circumstance also.

For the above reasons, we conclude therefore that Louisiana’s Workmen’s Compensation Law is applicable in this case.

PRELIMINARY JUDGMENT

La.R.S. 23:1315, among other things, provides that the adverse party must answer the workmen’s compensation petition within ten days after service. La.R.S. 23:1316 provides for a preliminary judgment if answer is not filed timely. In this case, the citation, on the Clerk of Court’s form, provided for an answer to be filed within fifteen days. After the statutory ten day period, defendant had not answered, hence plaintiff moved for and was granted, among other things, a preliminary judgment for specified weekly compensation in addition to statutory penalties and attorney’s fees of $750.00. Defendant contends that equity at least nullifies the preliminary judgment, because it should be able to rely upon the citation issued by the Clerk which incorrectly stated the legal delays. Our review of the record satisfies us that defendant was cognizant of the statutory ten day requirement and did not in fact rely upon the inaccurate statement on the citation. We therefore conclude that the preliminary judgment could be granted, and we therefore affirm it in all respects, except the portion of same which grants penalties and attorney’s fees. La.R.S. 23:1316 allows only compensation payments until a hearing on the merits is had. It does not provide for the granting of attorney’s fees. See Bickford v. Lutz, 339 So.2d 1268 (La.App. 1st Cir. 1976).

ATTORNEY FEES ON THE MERITS

Defendant paid plaintiff weekly compensation benefits through February 14, 1977. Compensation was then discontinued based upon two reports of Dr. R. J. Beurlot, Jr., an orthopedic surgeon, who had examined plaintiff on February 3,1977. The first report, in narrative form, indicates that plaintiff “has reverted to his pre-injury state.” The second report a “Standard Form for Surgeon’s Report” showed that plaintiff was able to resume regular work on February 3, 1977.

The trial judge did not grant penalties or attorney’s fees after hearing this ease on the merits. He did find that plaintiff was totally and permanently disabled under the compensation act based correctly on a preponderance of medical evidence. At the time that compensation was discontinued there was a medical dispute concerning plaintiff’s ability to return to work. Such being the case, plaintiff was not arbitrary in its actions, and penalties and attorney’s fees will be denied. Guillory v. Hartford Accident and Indemnity Company, 168 So.2d 360 (La.App. 3rd Cir. 1964), writ refused 247 La. 248, 170 So.2d 508; Johnson v. United States Fidelity and Guaranty Company, 276 So.2d 735 (La.App. 3rd Cir. 1973).

For the above and foregoing reasons the portion of the preliminary judgment which allowed penalties and attorney’s fees is reversed, but the preliminary judgment is otherwise affirmed. The judgment on the merits is affirmed.

Appellate costs are assessed one-fourth to plaintiff-appellee, and three-fourths to defendant-appellant.

AFFIRMED, AS AMENDED.

CUTRER, Judge,

dissenting.

.In 1975, the Legislature adopted the “Extraterritorial Coverage” statute setting up two criteria, either of which would bring an employee who was an out-of-state accident victim under the provisions of the Louisiana Workmen’s Compensation Act. These two provisions are:

(a) His employment is principally localized in this state, or
•(b) He is working under a contract made in this state.

I respectfully dissent as to the majority’s construction, interpretation and application of these two criteria.

WHETHER HIS EMPLOYMENT IS PRINCIPALLY LOCALIZED IN THIS STATE

The majority concluded that the “totality of the circumstances” must be considered in order to conclude whether the employee’s employment was principally localized in this state. They further pointed out that the “critical factor in this determination is the employee’s base of operations, i. e., the center from which he works.” They relied heavily on the fact that the principal office of the employer was located in the State of Louisiana and from which office all business expenses were paid, including salaries, reports were received in the Louisiana office from jobs that may be in operation outside the State of Louisiana, and the vehicles used in the operations were registered and licensed in the State of Louisiana. It was under those circumstances that the majority concluded that the plaintiff’s employment was principally located in Louisiana. With this conclusion I disagree.

If the Legislature would have intended that the domicile of the employee and/or the domicile of the principal office of the employer would be the basis for granting extraterritorial effect to our compensation laws, it could have easily so provided. It chose not to use those criteria as a basis. The statute, in effect, provides that if the employee’s employment is principally localized in this state, then our compensation law applies. Webster’s Third New International Dictionary (1961 Edition) defines the term “employment” as the “activity in which one engages and employs his time and energies.” The statute uses the word “his” employment, referring to the employee’s (plaintiff’s) employment. The words “his employment is principally localized in this state” means that the employee’s duties of employment were performed primarily within the State of Louisiana.

In this case, plaintiff was engaged in the activity of supervising Javeler’s operations wherever they might be located. The record indicates that after plaintiff was hired by Javeler on August 24,1975, he worked in Texas through October 27, 1975. Plaintiff then moved to the next job near Baton Rouge where he worked from October 29, 1975, through January 27, 1976. Plaintiff was then transferred to the job site near Rolling Fork, Mississippi, where he worked from January 29, 1976, until the date of his accident on September 10, 1976. Considering the employment in the various states, plaintiff only worked for approximately three months in the State of Louisiana while working for a total of approximately nine and one-half months in the States of Texas and Mississippi. I conclude that plaintiff’s employment was not principally localized in this state. Therefore, this requirement of the “Extraterritorial Coverage” act is not met.

WHETHER HE WAS WORKING UNDER A CONTRACT MADE IN THIS STATE

In answer to this second question the majority based its conclusion upon the cases of Williams v. Travelers Insurance Company of Hartford, Conn., 19 So.2d 586 (La.App. 1st Cir. 1944), and McKane v. New Amsterdam Casualty Company, 199 So. 175 (La.App. Orl. Cir. 1941), writ denied March 3, 1941, holding that the contract in the case at hand was made in Louisiana. In its determination of whether this was a Louisiana contract, the majority opinion, citing Williams and McKane, concluded that the court must consider (1) the place of performance, (2) the place of making, (3) the domicile of the parties, and (4) other circumstances surrounding the transaction.

I strongly disagree with the conclusion that all of the above enumerated circumstances are to be used in deciding this issue when the evidence clearly shows where the contract of hire was consummated.

The evidence reveals that Villere Cross and Leslie Cross, President and Vice President, respectively, of Javeler, went to the plaintiff’s apartment in Texas City, Texas, to discuss the employment of the plaintiff as a superintendent for Javeler. They discussed responsibilities, authority, and duties of the plaintiff in the capacity as superintendent. The weekly salary and living expenses were agreed to. After thinking it over for a couple of days, the plaintiff met Leslie Cross in Freeport, Texas, and accepted the offer that had been made in Texas City. He reported for work a short time later in Texas. The offer was made, the offer was accepted, and there was a complete meeting of the minds by both parties, and thus the contract was consummated in the State of Texas.

It should be pointed out that the Williams and McKane decisions were rendered long before the adoption of the “Extraterritorial Coverage” statute in question. If the Legislature had intended that the factors set out in Williams and McKane should be considered by the court in its determination of the place where the contract was made, it could have easily done so. The statute does not reflect that any such factors are to be considered. The statute very plainly provides that the issue is whether “he is working under a contract of hire made in this state”. In this case, the contract of hire was clearly made in Texas.

The Legislature, in adopting the “Extraterritorial Coverage” statute, set out in clear and concise language the conditions under which an out-of-state accident victim could come under the Louisiana Compensation Law. It set up two definable guidelines for the benefit of employees, employers, insurers and other interested parties in order for them to determine what compensation law applied to a workman injured out of state. The majority opinion, by making the “totality of the circumstances” the basis for interpretation of these two statutory criteria in each case, places these parties in an uncertain position.

I would conclude that the Workmen’s Compensation Law of the State of Louisiana does not apply in this case.

CULPEPPER, J., concurs.


author: CUTRER, Judge.

text:
    Wallace DUPLECHAIN, Individually and on behalf of his minor son, John Patrick Duplechain, Plaintiffs-Appellants, v. Darrell THIBODEAUX, Defendant-Appellee.
    No. 6445.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.

      Voorhies & Labbe, D. Mark Bienvenu, Lafayette, for plaintiff-appellant.
    Allen, Gooch & Bourgeois, Keith M. Borne and Joel E. Gooch, Lafayette, for defendant-appellee.
    Before WATSON, GUIDRY and CUT-RER, JJ.
   CUTRER, Judge.

Wallace Duplechain brought suit, individually and on behalf of his minor son John, for damages incurred as a result of being bitten by a dog owned by defendant Darrell Thibodeaux. Prom an adverse judgment, Duplechain appeals.

We affirm.

The trial court made no findings of fact but did cite the cases of Dotson v. Continental Insurance Company, 322 So.2d 284 (La.App. 1st Cir. 1975), and Parks v. Paola, 349 So.2d 896 (La.App. 1st Cir. 1975), writ denied 350 So.2d 1212 (La.1977), as a basis for judgment against Duplechain.

John Duplechain, 10 years of age, rode his bike to the home of Darrell Thibodeaux on the afternoon of August 18, 1975. John was going to a field in the rear of the home where his brothers were working. He parked his bike under a tree to the rear of the property adjoining a fence. He stated that he followed the fence to the gate, then to the field. He was aware of the dog being chained to a tank near the rear of the home. He testified that the dog barked at him when he went along the fence to the gate. The chain holding the dog could not reach John, however, as he traveled this route. He later returned to the defendant’s home and safely followed the same route to the bike. John testified that he moved the bike to the front of the property and decided to go back to the field. In doing so, he walked along the side of the house which put him within range of the dog. He was bitten by the dog.

A sign appears on the dog house “Beware of the dog”. John was facing this sign as he approached the dog. Mrs. Thibodeaux testified that she was in the yard when John arrived. She stated that she told him to go back to his home on two or three occasions, but he went to the field anyway. She also stated she warned him not to go near the dog.

In the Dotson case, supra, a nine-year old boy went into an enclosure which contained the dog contrary to the owner’s instructions and was bitten. The court, citing Holland v. Buckley, 305 So.2d 113 (La.1974), held:

“Thus when a plaintiff proves that he has been bitten by a dog of another, the burden shifts to the owner of the animal to exculpate himself by showing (1) that the harm was caused by the fault of the victim; (2) by the fault of a third person for whom the owner is not responsible, or (3) by a fortuitous event. (Page 286)
* * * * * *
“The facts of this case clearly indicate to us that the Williamses have satisfied this legal obligation imposed upon them by keeping their dogs secured and permitting no one to enter their yard without the presence of their son.
“Accordingly, we hold that the defendant’s assureds have satisfactorily met the burden of proof and that the incident here was caused by the fault of the victim himself by proceeding into the yard contrary to the owner’s instructions.” (Page 287)

In this case the child was aware of the presence of the dog. He was warned to stay away from the dog. He used a safe route the first time he went by the area where the dog was chained. He chose an unsafe route the second time he entered the area. A warning sign was clearly visible to the boy when he approached the area.

The Thibodeaux’s have satisfied the obligation imposed upon them to keep the dog secured and warned the boy about the dog. The incident was caused by the fault of the victim by proceeding into the area under these circumstances. We find no manifest error in the trial judge’s application of the principles enunciated in Dotson and Parks, supra.

Accordingly, we affirm the holding of the trial court; all costs are assessed against the plaintiffs-appellants.

AFFIRMED.


author: WATSON, Judge.

text:
    Levin FUSILIER, Plaintiff-Appellant, v. Atney FOURNERAT, Defendant-Appellee.
    No. 6446.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Devillier, Ardoin & Morrow, Anthony J. Fazzio and David Cook, Eunice, for plaintiff-appellant.
    Guillory, McGee & Mayeux, A. Frank McGee, Eunice, for defendant-appellee.
    Before WATSON, GUIDRY and CUT-RER, JJ.
   WATSON, Judge.

Plaintiff, Levin Fusilier, filed this suit October 14,1975, to claim a right of passage across the land of defendant, Atney Fournerat. Plaintiff alleged that his property in Acadia Parish, Louisiana constituted an enclosed estate as defined in LSA-C.C. art. 699.

The evidence supports the trial court’s factual conclusion that plaintiff’s property is not an enclosed estate, because a public road on the East designated as “E” is accessible to him and makes it unnecessary for him to use public road “A” lying across defendant’s property to the West.

According to the testimony of a police juror, J. D. Sittig, Sr., road “E” has been continuously maintained by the police jury for nine years as a gravel road, which is used for a school bus route. Road “E” leads to the property of plaintiff’s brother, Jacques Fusilier, with whom he entered into a partition January 3, 1953. The adjoining property on the West is adjacent to defendant’s and was acquired by plaintiff from defendant’s ancestor in title after the partition. However, both this property and that partitioned are accessible from road “E”. Prior to the partition the Fusiliers owned an undivided interest in the property served by road “E” and plaintiff retained a right of passage across his brother’s property after the partition under the provisions of LSA-C.C. art. 701. Plaintiff in deposition admitted the existence of wagon or sawmill roads affording ample passage between his property and that of his brother. Plaintiff in direct testimony admitted using road “E” for access to his property prior to the partition. The only obstacle to plaintiff’s present use of this road is a canal which he himself constructed. Plaintiff’s brother has never denied him a right-of-way across the property and in fact granted him a right-of-way for the canal. The bulldozer which was used to construct the canal was brought in from road “E”.

Thus plaintiff’s property is not an enclosed estate and he is not entitled to a right of passage across defendant’s land.

For the foregoing reasons, the judgment of the trial court herein is affirmed at the cost of plaintiff-appellant, Levin Fusilier.

AFFIRMED.