text:
    Anthony S. MACALUSO, Individually and as Administrator of the Estate of his minor son, Anthony J. Macaluso v. T. C. POPULIS et al.
    No. 10829.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 1976.
    Rehearing Denied Nov. 15, 1976.

      John D. Kopfler, Hammond, Jesse P. La-garde, Amite, for appellant.
    Robert J. Mack, Hammond, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit filed by Anthony S. Maealu-so individually and for and on behalf of his minor son, Anthony J. Macaluso, for damages resulting when the motorbike on which young Macaluso was riding ran into a truck owned and driven by T. C. Populis. Made defendants are T. C. Populis, Maryland Casualty Company (Maryland) and Commercial Union Insurance Company (Commercial). Maryland settled all claims against it by the minor, Anthony J. Macalu-so, and Anthony S. Macaluso prior to trial. Judgment was rendered against all three defendants in the amount of $10,000.00, and specifically providing that the judgment against Maryland in the sum of $5,000.00 had been satisfied by payment by Maryland of $5,000.00 pursuant to a minor’s settlement. The remaining defendants, T. C. Po-pulis and Commercial, have perfected this appeal.

The appellant, Commercial, at the time scheduled for argument, after due notice, was neither present nor represented, nor had any brief been filed on behalf of Commercial, nor had any motion been filed for a continuance. Therefore, under the authority of Rule VII, § 5(b), Uniform Rules-Courts of Appeal, this Court ex pro-prio motu, considers said appeal as abandoned, and it is hereby ordered that this appeal on behalf of Commercial Union Insurance Company be dismissed with prejudice.

The record discloses that on July 18,1972, between noon and 12:30 p. m., Anthony J. Macaluso, the then minor, was driving a 1972 Honda motorbike in a southerly direction on South Cate Street in Hammond, Louisiana. The motorbike upon which the youth was driving collided with a 1956 Chevrolet Truck owned and driven by T. C. Populis which was traveling in a westerly direction on Hansen Street. It was defendant’s intended purpose to continue in a westerly direction on Hansen Street through the intersection and across a set of railroad tracks. The intersection of South Cate and Hansen is controlled by a stop sign on Hansen Street. The collision occurred before Mr. Populis was able to successfully cross the intersection.

Riding on the rear of the Honda driven by young Macaluso was his cousin, Anthony Arnonne, and also riding in the same direction on a motorbike was a friend, Phillip Tallia. The Tallia vehicle successfully avoided the accident by weaving around the rear of the Populis vehicle.

Mr. Populis testified that he was driving his pickup in a westerly direction on Hansen Street. He came to a complete dead stop at the intersection of Hansen and South Cate Streets. He looked in both directions and saw no traffic coming toward him. He then pulled out slowly into the intersection and had almost completely passed over the southbound lane of traffic before the accident occurred. His front wheels were completely out of the southbound lane of traffic and his rear wheels were almost out of the southbound lane of traffic. The rear portion of the right door on the pickup truck was hit in the collision and Mr. Populis testified that he did not see the motorcycles until immediately prior to the accident. Sgt. Wesley Robertson of the Hammond Police Department investigated the accident. He testified that both South Cate and Hansen Streets are concrete surfaced and South Cate is a through street. The point of impact was in the southbound traffic lane of South Cate Street. He says the rear portion of the Populis vehicle was struck. He found no skid marks either by the motorcycle nor the Populis vehicle. The point of impact according to his testimony on the pickup truck was the right rear bumper and fender. He testified that the speed limit was 25 miles per hour and the weather conditions were dry and clear.

Anthony J. Macaluso claimed that he was 16 years old at the time of the accident and that he was operating his motorcycle on Morris Street, came to a four-way stop, stopped, took a right on South Cate Street heading south, and then the accident happened. Morris Street is approximately one block north of Hansen Street. He testified that he was going approximately 25 miles per hour when the accident happened and that he saw the truck just in time when it was right in the middle of the street. He testified that his front wheel hit the middle of the right door.

Phillip Tallia testified that he was riding in the right lane about a bike and one-half behind and to the left of Macaluso and traveling at a speed of about 25 miles per hour. When he first saw the truck it was in the middle of the road and he turned into the left lane to go around the back of it. He said he did not notice the Populis truck until he was in the middle of the intersection.

Anthony Arnonne who was riding on the motorbike with young Macaluso testified that they were traveling at a speed of about 25 miles per hour and that he did not notice the vehicle driven by Mr. Populis until right before the accident.

Floyd Baham was parked near the intersection of South Cate and Hansen Streets and testified that he saw Mr. Populis stop at the stop sign, that Populis had already taken off from the corner when Baham turned and saw young Macaluso come around the corner, that the back end of the Populis vehicle was in the southbound lañé of Cate Street at the time of impact, that he felt Macaluso was exceeding the speed limit, and that Macaluso in an attempt to avoid the collision turned to his right or to the west.

The appellant, T. C. Populis, contends that the Trial Court erred in rendering judgment in favor of plaintiffs where they did not carry the burden of proof; in not finding young Macaluso contributorily negligent for exceeding the speed limit, being inattentive and in turning into the pickup truck rather than away from it; in refusing to allow a newspaper photograph of the scene after the accident into evidence; and in granting an excessive award for damages.

Although we are not favored with written reasons for judgment by the Trial Judge, we are of the opinion that there are sufficient facts in the record to lead this Court to the conclusion that the Trial Judge was not manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973), rehearing denied (1973). The only evidence in the record as to whether or not Mr. Populis stopped at the stop sign was the testimony of himself and Mr. Baham and they both did testify that he stopped. It could have been, however, that he did in fact stop yet did not notice the approaching motorcycles and pulled out in front of them. Unless this was the case, it would appear that at least one of the three boys riding the motorcycles would have noticed the truck sooner. Apparently, the Trial Judge believed the version as given by the three young boys.

As to the specification that the Trial Judge erred in disallowing the introduction into evidence of a picture of the vehicles after the accident which appeared in a local newspaper, this Court in Wallace v. Travelers Insurance Company, 195 So.2d 712, 718 (La.App. 1st Cir. 1967), rehearing denied (1967), said:

“Our procedural rules require identification of photographs as a condition precedent to their admissibility in evidence. Generally photographs are admissible only if verified or authenticated by extrinsic evidence. The trial court, however, is vested with some discretion in determining the sufficiency of preliminary proof of authenticity. Although the better practice dictates that a photograph be verified and authenticated by the photographer who took it, nevertheless, authentication may be accomplished by the testimony of anyone with sufficient knowledge to aver that the picture fairly represents the subject matter it purports to portray.” (Citations omitted).

We are, however, of the opinion that the Trial Judge was in error when he disallowed the party attempting to introduce the photograph to adequately lay a foundation by asking questions as to whether the photograph fairly represented the scene depicted therein. However, after viewing the photograph which was proffered, we cannot say that the use of the photograph would have changed the ultimate outcome of the decision of the Trial Court, and thus find no reversible error.

With regard to quantum, LSA-C.C. art. 1934(3) provides in part as follows:

“In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, * * * >>

In considering the effect of the said statute, as well as the jurisprudence as set forth in the landmark cases of Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964), rehearing denied (1964) and Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), the Supreme Court, in Miller v. Thomas, 258 La. 285, 246 So.2d 16, 19 (1971), said:

“From these decisions, two principles emerge:
(1) To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury has abused the ‘much discretion’ accorded by the codal provision;
(2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.”

Dr. Matta testified that he first saw plaintiff, young Macaluso, in the emergency room in St. Tammany Parish Hospital on July 18, 1972. He said plaintiff was pretty badly injured, and his examination revealed two fractures of the wrists, fracture of the left femur and a cerebral concussion. The young man was taken to the hospital operating room where both wrists were manipulated and placed in casts. A traction pin was also inserted in the proximal part of the tibia in order to be able to put him in traction to try to control the fracture of the left thigh, and control the spasm and pain that accompany such type of fractures.

Plaintiff was admitted to the hospital July 18th and discharged on August 5,1972. About the third day of hospitalization, plaintiff developed a tremendous degree of confusion and disorientation, and started running high fever. He developed fat embolism for which he was energetically treated.

He was again taken into surgery on July 29th, at which time a nail was introduced to bring about proper alignment on fixation of the fractured femur. The nail, as Dr. Mat-ta testified, was approximately 40 centimeters long.

When young Macaluso was discharged from the hospital, he could not use crutches and had to be confined to a wheelchair. He was seen in the doctor’s office on August 18th and the casts on his wrists were removed and metallic splints were applied. On September 15th he was again seen and the splints were removed from his wrists and he was instructed to start bearing some weight on his leg, though he could not drive an automobile. He was finally discharged on December 11, 1972.

We do not feel that, considering the severity of the injuries received by the plaintiff, the Trial Court abused its “much discretion” as provided in Article 1934(3) of the Louisiana Civil Code as well as in the cases cited thereunder.

For the reasons hereinabove assigned, the judgment of the Trial Court will be affirmed, all costs of this proceeding to be paid by defendant-appellant.

AFFIRMED.

      . Anthony J. Macaluso became a major prior to trial and was made a party plaintiff during the trial.

      . Insurer of Anthony S. Macaluso, and sued under uninsured motorist coverage.

      .Sued under the uninsured motorist coverage of a policy issued to the Tangipahoa Parish School Board which listed Mrs. Anthony S. Macaluso as an insured because of the school bus she and her husband owned and operated for the School Board.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Don H. SCHMIEDER and 12055 Airline Corporation v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 10841.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Feb. 1, 1977.
    David W. Robinson, Baton Rouge, of counsel, for 12055 Airline Corp.
    Charles W. Roberts, Baton Rouge, of counsel, for Don H. Schmieder.
    Horace C. Lane, Baton Rouge, of counsel, for State Farm Fire and Cas. Co.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Don H. Schmieder d/b/a 12055 Airline Corporation (Appellant) appeals from judgment dismissing Appellant’s claim against defendant State Farm Fire and Casualty Company (Insurer) for payment allegedly due Appellant pursuant to a builder’s risk policy issued by Insurer on a building under construction by Appellant. The precise question presented is whether a builder’s risk policy which insures against loss by “explosion” covers the collapse of a building due to structural defects. The trial court answered the query adversely to Appellant. We affirm.

On the afternoon of September 30, 1974, Appellant was engaged in the construction of a building located on the east side of Airline Highway and bearing municipal number 12055 Airline Highway, Baton Route, Louisiana. The structure was made of concrete walls. The front or western portion of the structure consisted of two stories; the rear or eastern part was one story high. On the date in question the building was almost complete; workmen were laying carpet in the structure, landscaping the grounds, and completing installation and testing of the air conditioning system. Occupancy of the structure was anticipated within approximately one week. The building’s roof was made of concrete slabs. The intermediate floor of the two story portion (ceiling of first story and floor of second story) was also constructed of pre-fabricated concrete slabs. The main entrance to the building was situated on the north side near the northwest corner of the structure. Near the entrance was a stair well beneath a stairway leading to the second floor. It is conceded that located in the stair well was a collection of paint, varnish, carpet glue and other similar products used in the building by the various crafts involved in its construction. There is also some evidence that one or more cans of gasoline were stored in this area. Near the stair well was situated a room measuring approximately ten by ten feet, on the north wall of which was installed the control panel for the building’s electrical system.

At approximately 2:30 P. M. on the day in question, the building suddenly and unexpectedly collapsed with a loud noise. The west wall fell outward (westerly) almost in one piece, crushing several vehicles parked adjacent thereto. Glass from the windows was found beneath the fallen west wall and for some little distance beyond. While the wall at the southeast corner of the building also fell outward, the north wall remained standing. Upon the arrival of building inspector within approximately 15 minutes of the disaster, the standing north wall was ordered demolished to assist in the rescue of workmen believed trapped in the debris. The roof and rear wall of the two story section fell onto the intermediate floor which in turn collapsed under the weight. The roof of the rear portion also fell inside the structure. The rear or east wall of the one story section remained standing.

The original plans called for the intermediate floor to be supported by steel columns and framing. During construction the plans were changed to concrete columns and precast concrete slabs for the intermediate floor. This alteration caused concern regarding the ability of the walls to support the additional weight involved. As a precautionary measure, supporting brackets were installed in the west wall to support the roof and intermediate floor of the two story area. Following the collapse, the supporting brackets were found intact in place. The protruding ends of the reinforcement rods in the intermediate floor slabs were found to have been drawn out in the nature of pencil points. There is considerable dispute concerning whether the concrete roof slabs over the two story area contained reinforcement rods which extended to the ends of these slabs which overlapped and rested upon the west wall for support. The record overwhelmingly establishes that although there was much combustible material in the building such as paper, carpeting and cartons, none of such material showed any evidence of burning, charring or exposure to or damage from heat or fire following the collapse of the building.

The sudden collapse of the structure killed two or three workmen and injured several more. For all practical purposes the building was a total loss.

The extended coverage provisions of the policy in question insures Appellant “against direct loss by windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and smoke, except as hereinafter provided.” The policy does not purport to define the term explosion as contained in the insuring clause. The policy does, however, expressly exclude the following from explosion coverage:

“This Company shall not be liable for loss by explosion of steam boilers, steam pipes, steam turbines or steam engines if owned by, leased by or operated under the control of the insured.
“The following are not explosions within the intent or meaning of these provisions:
(a) Shock waves caused by aircraft, generally known as ‘sonic boom’.
(b) Electric arcing.
(c) Rupture or bursting of rotating or moving parts of machinery caused by centrifugal force or mechanical breakdown.
(d) Water hammer.
(e) Rupture or bursting of water pipes.
(f) Rupture or bursting due to expansion or swelling of the contents of any building, caused by or resulting from water.
(g) Rupture, bursting or operation of pressure relief devices.”

Resolution of this matter hinges upon the determination of two basic issues: (1) the meaning of the term ‘explosion’ as used in the policy and (2) whether Appellant has established that the building collapsed as the result of an explosion as intended by the policy provision insuring against explosion.

So far as we are aware, the only case in our own jurisprudence to consider directly the definition of “explosion” as used in an insurance policy, is Levert-St. John, Inc. v. Birmingham Fire and Casualty Company, La.App., 137 So.2d 494. In the cited case it was held that where such a term is not defined in the policy, it must be interpreted in its ordinary sense as used and understood by laymen rather than by technicians and scientists. This holding is in accord with our codal rule of interpretation of agreements expressed in La.Civ.Code Art. 14, which provides that words of an agreement should be given their general and popular interpretation and not that which is strained and unusual. This rule of interpretation applies to insurance contracts and policies. Taylor v. State Farm Mutual Automobile Insurance Company, 248 La. 246, 178 So.2d 238.

A contract of insurance, like any other agreement, is the law between the parties. La.Civ.Code Art. 1901; Sumrall v. Aetna Casualty and Surety Company, La.App., 124 So.2d 168.

Courts must give legal effect to the provisions of an insurance policy according to the true intent of the parties, which is determined by the wording of the policy when its provisions are clear and unambiguous and do not lead to absurd consequences. La.Civ.Code Arts. 1901,1945; Bunch v. Frezier, La.App., 239 So.2d 680.

The words employed in an insurance policy are to be understood in their common and usual significance without attending so much to grammatical rules as to general and popular use. Taylor v. State Farm Mutual Automobile Insurance Company, above; Harmon v. Lumbermens Mutual Casualty Company, 247 La. 263, 170 So.2d 646.

Our research indicates that in seeking to ascertain the meaning of “explosion” in its ordinary meaning, most courts tend to employ a standard dictionary definition of the term. See 28 A.L.R.2d 997; Webster’s Third New International Dictionary, Unabridged (1961), defines explosion as follows:

“a violent expansion or bursting that is accompanied by noise and is caused by a sudden release of energy from a very rapid chemical reaction, from a nuclear reaction or from an escape of gases or vapors under pressure.”

We note the foregoing definition of explosion is generally relied upon by those authorities cited with approval in Levert-St. John, Inc. v. Birmingham Fire and Casualty Company, above.

Appellant contends the foregoing definition of explosion, which is urged by Insurer and which was employed by the trial court, is a narrow definition of the term. Appellant contends that since explosion is not defined in the policy and because certain types of explosions are expressly excluded from coverage, the policy is ambiguous and uncertain as to the meaning of the word. On this premise, Appellant invokes the rule that ambiguities in an insurance contract are to be construed against the insurer and in favor of the insured. Consequently, Appellant argues, explosion should be interpreted in its broadest sense so as to mean any sudden release or relinquishment of energy causing a break or rupture and accompanied by a loud noise.

Appellant’s chief witness and only expert, Dr. Dean C. McKee, Professor of Civil Engineering, Louisiana State University, testified that the cause of the collapse began as a microcrack propagation where the roof joined the west wall. He believed this phenomenon could have been precipitated by the normal contraction of the concrete roof in the drying process and later increased due to interior vibrations in the structure or the sudden failure of internal stresses in the building. He admitted that he found no evidence of any combustion type explosion in the ordinary sense of the term. He stated, however, that when concrete breaks up and disintegrates due to stress, it pops with a loud explosion-like noise, and the release of energy in this fashion may, under some technical scientific theories, be likened to an explosion.

Joseph Guarisco, Inspector for the City-Parish Government, arrived at the scene approximately 15 minutes following the fall of the building. He gave orders for demolition of the north wall. He concluded that the building collapsed due to an explosion set off by an electrical spark or arcing from the control panel situated on the north wall of the building near the stair well. He noted that combustibles were stored in the area near the control panel. He also testified that he saw gasoline cans in this same area, some of which were burst open. Moreover, he noted along the ceiling line of the room containing the control panel, a smudge or burn mark four to six inches wide and several feet in length indicating that combustion had taken place in that area. He admitted that smudge line was the only evidence of combustion seen in this room or any other area of the building. Noting that the reinforcement rods protruding through the ends of the intermediate floor slabs, which had rested on the west wall, were still extending straight out and had been stretched or drawn to pencil points, he considered this evidence of the wall having been blown outward from the intermediate floor before the roof began falling in.

Insurer called four experts all of whom agreed in essence that the structure fell because of a diagonal tension failure of shear failure between the roof system of the two story part of the building and the west wall on which the roof rested.

Harold R. Myers, mechanical engineer associated with an independent and disinterested engineering firm, examined the site commencing about four days after the incident. He spent almost three weeks examining the debris. He especially probed for signs of an explosion and found none save evidence of electrical arcing near the ceiling of the room in which the electrical control panel was situated. He explained that the marks noted were electrical burns which occurred when the building fell and pulled the electrical wires from their connections. He also noted that the presence of gasoline and kerosene fumes in the building after the collapse indicated the absence of an explosion because all such vapors would have been consumed otherwise. He also noted that none of the combustibles in the building showed sign of burning or exposure to heat. He observed further that boxes and materials did not appear scattered throughout the structure as would be expected had there been an explosion.

Myers’s views were shared by Edward' E. Walters, an employee of the same firm as Myers. Walters, an expert in the field of structural civil engineering concluded that the building fell because of shear failure between the roof and west wall due, at least in part, to the roof’s having been made with concrete heavier than that called for in the original plans. In summary, Walters believed that the roof fell in because it lacked the reinforcement necessary to carry its own weight. He found that the ends of the reinforcement rods in the roof slabs did not extend to the ends of the slabs and therefore did not afford support at the point where the slabs rested upon the wall. He noted that the fracture of the slabs occurred at an appropriate 45° angle. He concluded the building collapsed because of design failure, not an explosion.

E. E. Taylor, an associate of Myers and Walters, expert in structural engineering, shared the views of his colleagues. He also explained there was no explosion because material and debris were not thrown any distance from the building and because the second floor windows in the remaining walls were intact following the explosion.

Robert W. McKenzie, expert in the field of structural engineering, unassociated with Myers, Walters and Taylor, in essence testified that the building fell because of poor design failure and haphazard construction. He noted that the original plans called for the second floor to be made of bar joist steel and the roof of lightweight concrete. Instead the roof was made of heavy concrete and the intermediate floor was constructed of the same heavy concrete as the roof without providing for the extra weight involved.

Appellant Schmieder and numerous workmen in the building at the time of collapse testified in effect that they heard a loud noise similar to that resulting from an explosion, following which the building collapsed with a rumbling. None of these witnesses attested to seeing any fire, flame or other evidence of combustion. None of them suffered burns of any nature.

Our research discloses that the dictionaries contain many definitions of the term “explosion”. We also note that the case law of other jurisdictions preponderates in favor of the rule that the word “explosion” has no fixed or definite meaning in ordinary speech or in law. Most authorities hold “explosion” is a general term unlimited in application and dependent upon concept of degrees. Its true meaning in a given instance must be determined, not by a fixed criteria or precise measurement, but by the common experiences and notions of ordinary individuals in matters of this nature. Levert-St. John, Inc. v. Birmingham Fire & Casualty Co., above, citing Vorse v. Jersey Plate Glass Insurance Co., 119 Iowa 555, 93 N.W. 569, 60 L.R.A. 838 and Hartford Fire Insurance Co. v. Empire Coal Min. Co., 10 Cir., 30 F.2d 794; American Casualty Company of Reading, Pa. v. Myrick, 5 Cir., 304 F.2d 179; Bower v. Aetna Insurance Co., D.C., 54 F.Supp. 897; Oroville Cordell Fruit Growers, Inc. v. Minneapolis Fire & Marine Insurance Company, 68 Wash.2d 117, 411 P.2d 873; Standard Accident Insurance Co. v. Harrison-Wright Co., 207 N.C. 661, 178 S.E. 235; Transatlantic Fire Insurance Co. of Hamburg v. Dorsey, 56 Md. 70, 40 Am. Rep. 403; United Life, Fire & Marine Insurance Co. v. Foote, 22 Ohio St. 340; Pastour v. Kolb Hardware, Inc., Iowa, 173 N.W.2d 116; Crombie & Co. v. Employers’ Fire Insurance Company of Boston, Mass., Tex.Civ.App., 250 S.W.2d 472.

Applying the foregoing rules of construction and interpretation, we find that an explosion did not occur in this instance. We conclude, as did the trial court, that the building fell because of faulty design and construction. We also conclude that the concrete roof fell or caved in onto the intermediate floor due to failure to properly reinforce the roofing and also to failure to furnish adequate wall support for the weight involved. That the roof cracked, because of faulty design, with a loud noise similar to that which accompanies an explosion resulting from the ignition of flammable gases or vapors, or the sudden bursting of a boiler, such an incident would hardly be regarded by an ordinary person as an explosion.

The judgment of the trial court is affirmed at Appellant’s cost.

Affirmed


text:
    Eddie FOSTER v. WESTERN WORLD INSURANCE CO. et al.
    No. 10845.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    John W. Anthony, of Talley, Anthony, Hughes & Knight, Bogalusa, for plaintiff.
    Tom H. Matheny and Thomas B. Waterman, of Pittman & Matheny, Hammond, for defendants.

      Before LANDRY, BLANCHE and LOT-TINGER, JJ.
   LANDRY, Judge.

Plaintiff, Eddie Foster (Appellant) brought this action against defendants Western World Insurance Company, All Star Insurance Corporation and Stuárt Alfred Douglas Haynes (Insurers), erroneously sued as Underwriters at Lloyds, London, for amounts allegedly due under three fire insurance policies issued by Insured on certain commercial property owned by Appellant in the City of Bogalusa, Louisiana. From judgment awarding recovery of full face value of subject policies, but denying Appellant’s claim for penalties and attorney’s fees, plaintiff has appealed. Insureds have neither appealed nor answered plaintiff’s appeal. The sole issue before us is whether Appellant is entitled to statutory penalties and attorney’s fees for Insured’s alleged failure to timely pay Appellant’s loss, and if so, the amount of penalties and attorney’s fees due. We reverse and render judgment in favor of Appellant for both penalties and attorney’s fees.

Appellant’s claim for penalties and attorney’s fees is predicated upon LA-R.S. 22:658, which provides:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of' such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees. Amended and reenacted Acts 1958, No. 125.” '

It is conceded that defendants each insured plaintiff’s building and its contents, in amounts aggregating $25,000.00 on the building and $11,000.00 on the contents, against loss by fire, and that on October 13, 1973, a fire occurred in the building damaging the structure and its contents. On April 30, 1974, plaintiff submitted proof of loss to each defendant showing damage to the building in the aggregate of $29,059.00 and to the contents in the sum of $2,001.70, a total damages of $31,060.70. The proofs of loss were received by defendants on May 2, 1974. On June 5, 1974, John L. Garcia, adjuster representing Insureds, in response to a demand for payment from plaintiff’s attorney, sent plaintiff’s counsel three new proofs of loss showing a total loss of $13,-689.70. Garcia’s communication acknowledged that the “$2,001.70 contents loss you submitted was in line and was allowed as such.” At the trial Garcia testified the new proofs of loss were submitted to plaintiff because the original proofs exceeded policy coverages on the building and were therefore unacceptable to insurers. He also noted that it was customary in such cases to pay building and contents losses at one and the same time.

The record discloses that the proofs submitted by Insureds to Appellant, were predicated upon an appraisal made by a realtor employed by Insureds. It further appears this appraisal was not made upon an estimate of the cost of repairing the fire damage but was made upon the Realtor’s valuation of the structure as it existed before the fire. The record also reflects that the proofs submitted by plaintiff were predicated upon the estimate of an experienced general contractor who determined the cost of restoring the building to its pre-fire condition.

Prior to July 3, 1974, Insureds forwarded three checks, totalling $13,689.70 in payment of the loss, which checks were received by plaintiff on July 3, 5, and 9, 1974, respectively. Appellant filed this suit on July 3,1974, 62 days after submission of his proof of loss, which filing date was the same as that on which Appellant received the first of the three above mentioned checks.

In large measure the record consists of testimony as to the value of the building as determined by the experts engaged by the adverse parties. Defendants sought to show that plaintiff was entitled to recover for the building only the value of the structure as estimated by defendants’ expert. Insurers also rely on this divergence of opinion as evidence of a bona fide dispute which precludes plaintiff’s recovery of penalties and attorney’s fees for failure of defendants to pay within the 60 day delay provided by LA-R.S. 22:658.

The trial court rejected Appellant’s claim for penalties and attorney’s fees on the ground that a bona fide dispute existed between the parties as to the amount of the loss. In so doing we find the trial court erred as a matter of law.

Our jurisprudence is well settled to the effect that where there is reasonable disagreement between the insured and insurer as to the amount of a loss, the insurer’s refusal to pay is not arbitrary or capricious and failure to pay within the applicable statutory delay does not subject the insurer to liability for penalties and attorney’s fees. The Forge, Inc. v. Peerless Casualty Company, La.App., 131 So.2d 838; McGuire v. State Farm Fire and Casualty Company, La.App., 175 So.2d 838; Ranzino v. Allstate Insurance Company, La.App., 210 So.2d 907.

It is equally well established law that, if part of a claim is not disputed, failure of the insurer to pay that portion of the claim within the statutory period subjects the insurer to liability for penalties on the entire claim. Steadman v. Pearl Assurance Company, 242 La. 84, 134 So.2d 884; Guillory v. New York Fire and Marine Insurance Co., La.App., 201 So.2d 366. In rejecting Appellant’s demands for penalties and attorney’s fees, the trial court obviously erred in failing to apply the rule announced in the Steadman and Guillory cases, above.

Insureds maintain payment of the undisputed sum of $2,001.70 was in fact made as evidenced by hereinabove mentioned drafts sent Appellant, the first of which was received July 3, 1974. The answer to this contention is twofold. First, the drafts were all received more than 60 days after submission of proof of loss. Secondly, the drafts were all conditioned upon Appellant’s acceptance in full settlement of his entire claim. Our jurisprudence holds that an insured’s offer to pay an undisputed amount conditioned upon the insured’s acceptance in full settlement does not constitute tender within the contemplation of LA-R.S. 22:658 because it is not absolute and unconditional. Witherwax v. Zurich Insurance Company, La.App., 315 So.2d 420, and cases cited therein.

Appellant contends he is entitled to penalties in the sum of 25 per cent of the awards received, because subject policies covered “other properties” within the meaning of that term as appears in the last sentence of LA-R.S. 22:658, above. In so arguing, appellant relies upon Creel v. Audubon Insurance Company, 128 So.2d 284 (La.App. 1st Cir.), and Clark v. Union National Fire Insurance Company, 301 So.2d 434 (La.App. 2d Cir.). In both of the cited authorities district court judgments awarding 25 per cent penalties on dwelling losses, were affirmed without discussion.

Contrary to the Creel and Clark cases, above, our brothers of the Third Circuit held that the last sentence of LA-R.S. 22:658, which imposes a 25 per cent penalty, applies only to motor propelled vehicles and like property, and that the 12 per cent penalty provision of Section 658, above, applies to dwelling losses. See Welch v. New York Underwriters Insurance Co., La.App., 145 So.2d 376.

The last sentence of Section 658, above, is based on the content and title of Act 59 of the Extra Session of 1921. The penalty provision of that statute was held to apply only to “motor-propelled vehicles and the like”. Stovall v. Sterling Fire Ins. Co., 163 La. 284, 111 So. 707 (1927). See also Davis v. National Fire Insurance Company, 169 La. 63, 124 So. 147. As noted in Welch, above, LA-R.S. 1:16 provides that the Revised Statutes of 1950 “shall be construed as continuation of and as substitutes for” prior laws. Applying this principle, the Welch case determined the Stovall and Davis cases, above, represented the proper interpretation of LA-R.S. 22:658, as regards penalties recoverable for failure to timely pay fire insurance losses to property other than automobiles, trucks, motor propelled vehicles and the like.

As noted in Welch, above, Creel, above, did not consider the amount of penalties due but was concerned merely with whether the failure to pay was arbitrary and whether the attorney’s fees awarded were excessive. In this instance we face squarely the issue of the amount of penalties due. We find the reasoning in Welch, above, to be sound, and adopt it as our own. Accordingly we conclude penalties of 12 per cent are recoverable in the instant case. Insofar as Creel, above, may be construed to hold penalties of 25 per cent are due in cases of this nature, we overrule Creel.

The record reflects that Appellant’s attorney spent 163V4 hours in preparation for trial. A. Clayton James, Jr., testifying as an expert on attorney’s fees, stated he considered $50.00 per hour as reasonable compensation for an attorney’s services under the circumstances. We also note in the record a contingent fee contract between Appellant and his attorney in which Appellant agreed to pay his attorney 33V3 per cent of the amount recovered in this lawsuit. We note that 12 per cent penalties added to plaintiff’s award of $27,001.70 will total over $30,000.00.

Considering the time invested by counsel in preparation for trial, trial and appeal, we conclude a fee of $9,000.00 to be reasonable, payable one third by each defendant.

The judgment appealed is amended to assess a penalty of 12 per cent on the amount awarded against each defendant, and assessing each defendant with $3,000.00 attorney’s fees, and as amended the judgment is affirmed. All costs are assessed against defendants, in solido.

Amended and affirmed.


author: PONDER, Judge.

text:
    MARCH CHEMICAL COMPANY, INC. v. WHITE CROSS LABORATORIES, INC.
    No. 10847.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Feb. 1, 1977.

      Peter T. Dazzio, Baton Rouge, for plaintiff.
    Lawrence R. Anderson, Jr., Baton Rouge, for defendant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff-appellant, March Chemicals Company, Inc., (March), a Louisiana Corporation, filed suit on open account for $3,162.00 against White Cross Laboratories, Inc., (White), defendant-appellee, a New York corporation not licensed to do business in Louisiana and not having appointed an agent for service of process. White, served by mail pursuant to LSA-R.S. 13:3204, filed a declinatory exception of lack of personal jurisdiction. The lower court sustained the exception and dismissed March’s suit. March has timely perfected this appeal. We affirm.

White purchased chemicals from March after various telephone and written communications. The chemicals were shipped from Louisiana to White in New York. There is some dispute or lack of clarity as to whether it was March or White which initiated the interstate negotiations. The deposition and affidavit in the record do not clear up this point. There also appears to have been two similar transactions between March and White in the past; however the precise nature of these is not of record.

White does not have any assets, employees, agents or representatives in Louisiana. White has never sold any of its products in Louisiana and has never advertised in publications principally sold and distributed here. No representative of White has ever come to Louisiana for business purposes.

It is March’s contention that personal jurisdiction is appropriate in this case under our “long-arm statute.” Specifically,, we are directed to R.S. 18:3201(a) which reads as follows:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s (a) transacting any business in this state;

It is White’s contention that personal jurisdiction in this case is inappropriate under Riverland Hardwood Co. v. Craftsman Hardware Lumber Co., 259 La. 635, 251 So.2d 45 (1971). In Riverland, a foreign corporation that was not authorized to do business here and had not appointed an agent for service of process, purchased lumber from a Louisiana seller pursuant to a mailed purchase order. The foreign corporation had previously purchased lumber from two other Louisiana sellers and advertised in publications which were distributed here. Yet, when the Louisiana seller sued for $7,960.92 representing the price of the lumber, the Supreme Court held that our courts had no personal jurisdiction of the foreign purchaser.

The rationale of the Court in Riverland was that there is a constitutionally recognized distinction between foreign purchasers and foreign sellers; that although it was proper to make the foreign seller go to the forum of the foreign purchaser to secure the purchase price of the sale, “it would ‘offend traditional notions of fair play and substantial justice’ to allow a foreign state to subject an out of state purchaser to its jurisdiction.” Riverland, supra, 251 So.2d at page 47. See McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, and Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, for the constitutional standards of due process that must be met in order to assert jurisdiction over a nonresident.

March argues on appeal that the holding of the Riverland case has been eroded by Moore v. Central Louisiana Electric Company, Inc., La., 273 So.2d 284 (1973), Fisher v. Albany Machine and Supply Company, 261 La. 747, 260 So.2d 691 (1972) and Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Company, La., 283 So.2d 687 (1973). We have closely studied these and other cases and conclude that the holding of the Riverland case is still viable.

Moore, supra, is clearly distinguishable as it did not involve the application of R.S. 13:3201(a), but instead was concerned with R.S. 13:3201(d). Furthermore, the court expressly found that the out of state manufacturer/seller regularly.engaged in a persistent course of business in Louisiana. The court in Fisher, supra, likewise was concerned with R.S. 13:3201(d) and expressly distinguished the Riverland case.

Drilling, supra, however, did involve an interpretation of R.S. 13:3201(a). In that case, a Louisiana concern furnished engineering services in Indonesia on behalf of a California corporation. A representative of the California corporation personally came to Louisiana and negotiated the contract. The numerous operational problems that arose during the six month performance period were discussed by telephone at least twice a week. There were the usual invoicing, payments and correspondence between Louisiana and California. Again, the Supreme Court expressly distinguished the Riverland case and held 283 So.2d at page 690 that:

“The facts of this case warrant our conclusion that defendant had sufficient contacts in Louisiana to subject it to the jurisdiction of our courts. We must first bear in mind that it was defendant who contacted plaintiff and came to Louisiana in order to work out the terms and conditions of the contract which was ultimately confected here when plaintiff signed the revised agreement. This business was not solicited by plaintiff. Rather, defendant came to Louisiana and sought out plaintiff. Secondly, while the contract was for services to be rendered by the plaintiff outside the State of Louisiana, it was in the furtherance of the business of defendant. Also very significant is the fact that the contract was for a period of six months which had the effect of a continuing transaction during this period. This is evidenced by the frequent telephone conversations and correspondence between the parties and the fact that defendant was billed periodically based upon the daily engineering services provided. Defendant made further contacts in this State by requesting plaintiff to review the job progress and make drilling studies based upon information supplied from defendant’s office.
“Based upon the foregoing facts, we conclude that defendant corporation was transacting business within this state within the meaning of R.S. 13:3201(a). We find that there were sufficient contacts in Louisiana to subject defendant to the personal jurisdiction of our courts without being denied due process of law or offending ‘the traditional notions of fair play and substantial justice.’ ” (Emphasis supplied)

See also, Kalvar Corporation v. General Micrographics, 318 So.2d 71 (La.App. 4th Cir. 1975); writ denied, La., 322 So.2d 773 (1975).

We also note the case of Dodson v. Fontenot, 285 So.2d 328 (La.App. 3rd Cir. 1973), in which a Louisiana purchaser went to Texas and purchased horses on only one occasion. The seller procured a judgment in Texas for the purchase price and brought suit in Louisiana on the judgment. The Third Circuit found that the Texas court could validly assert jurisdiction over the Louisiana purchaser.

The decision in Dodson is not opposite to Riverland because in Dodson the nonresident buyer traveled to the foreign state specifically to purchase and personally arranged for shipment while there.

It is clear that the Riverland ease is still controlling. However, the applicability of R.S. 13:3201(a) and due process issues must be decided by the particular circumstances and facts of each case. Drilling Engineering, Inc., supra.

We find the facts of the instant case substantially indistinguishable from those of Riverland. In fact, the instant case is stronger than Riverland for denying jurisdiction in that White has never advertised in publications principally sold and distributed here. We therefore find that White cannot be subjected to the jurisdiction of a Louisiana court.

Finally, March quotes extensively in its brief a rigorous criticism of Riverland found at 34 La.L.Rev. 691, et seq. We also note criticisms at 18 Loy.L.Rev. 452 (1972) and 45 Tul.L.Rev. 1081 (1971). While the criticisms are interesting, we are constrained to follow the latest expression of our Supreme Court in this area.

For the above reasons we affirm the judgment of the trial court. Plaintiff-appellant is to pay all costs.

AFFIRMED.

      . R.S. 13:3201(d) reads as follows:
      “A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
      (d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this statute if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;

      . Citing Yankee Metal Products Company v. District, 528 P.2d 311 (Okla.1974) March argues that we should follow the Oklahoma court and subject an “active” foreign purchaser to our jurisdiction as opposed to a “passive” foreign purchaser. Without discussing the merits of such a semantical approach, we merely note that we must follow the jurisprudence of our Supreme Court in Riverland and cannot look to foreign law when there is no gap in our own law.


author: PONDER, Judge:

text:
    Gordon M. HAGAN and Mrs. Dorothy Hagan v. CHRYSLER CORPORATION, et al.
    No. 10853.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Feb. 1, 1977.

      Ralph Brewer, Baton Rouge, for plaintiff s-appellants.
    Carlos Spaht, Carey J. Guglielmo, of Kan-trow, Spaht, Weaver & Walter, Baton Rouge, for defendant-appellee.
    L. Michael Cooper, of Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for defendant, Price-A.K., Inc. appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge:

On April 7, 1969, plaintiff s-appellants, Gordon and Dorothy Hagan, purchased a Chrysler demonstrator from Price-A.K. Inc. The automobile although “new”, had approximately 7,000 miles already on it. On May 12, 1969, the automobile while being driven by Mrs. Hagan was involved in an accident. In September 1970, the car was repossessed for nonpayment. Plaintiffs-appellants filed this suit on April 10, 1970, against Chrysler Corporation and Price-A.K., Inc. seeking $50,000.00 for the injuries suffered by Mrs. Hagan in the May 12, 1969, accident, alleging that the accident was caused by a defect in the car and that Chrysler Corporation was liable as a negligent manufacturer and Price-A.K. as a negligent seller. Plaintiffs-appellants also sought $5,800.00 in redhibition.

The lower court found that plaintiffs-appellants failed to bear their burden of proof that the accident was caused by any defect in the car and that the redhibition claim had prescribed, suit thereon being filed more than one year after purchase. Plaintiffs-appellants have timely prosecuted this appeal. We affirm.

NEGLIGENCE CLAIM

On May 12, 1969, Mrs. Hagan was proceeding in the Chrysler on four lane highway US 190 approximately two miles west of its intersection with La. 1. She was proceeding at approximately 40 MPH two car lengths behind a vehicle traveling in the inner lane of the two lanes heading west. The weather was clear; the road was dry; it was midmorning. According to Mrs. Ha-gan, the vehicle she was following began to turn left. Mrs. Hagan to avoid striking the rear of the turning vehicle turned the steering wheel to the right and applied her brakes. At this point, she testified that “something went wrong with her vehicle;” the motor died, the steering wheel locked and the brakes failed. In any event, the vehicle went across the outer lane, struck a car parked on the shoulder, then veered left across the outer lane and was struck by a car in the inner lane. The car was damaged on the right rear and left front and required $123.50 worth of repairs.

The investigating trooper examined the car but did not note any mechanical defects. Mr. Hagan came to the scene, examined the car and, in fact, drove Mrs. Hagan to the hospital in it. The Hagans testified that the ear had stalled on previous occasions without warning. However, we find it significant that although the vehicle had been in the shop at least twice before the accident for routine servicing, none of the service orders noted this problem. Furthermore, if the vehicle was “dangerous” as the Hagans contend, we fail to understand why they drove the car to the hospital and over 20,000 miles after the accident.

We agree with the trial judge that plaintiffs-appellants failed in their burden of proof. We find that the evidence actually shows that the accident was caused by the negligence of Mrs. Hagan. She was driving at least 40 MPH, yet was only two car lengths behind the vehicle in front of her. She claimed that the brakes failed, yet her vehicle left thirty feet of skid mark. She claimed that her steering locked or that the steering wheel could not be turned, yet her vehicle veered right to strike the vehicle on the shoulder and then veered left to strike the vehicle proceeding in the inner lane. Obviously, the small amount of damage ($123.50) establishes that the force of the collision with the parked car could not have caused the car to veer that severely to the left; otherwise, the Chrysler would have been damaged on its right side to a much greater extent. It is obvious that the trial judge did not believe Mrs. Hagan’s version of the accident. In view of the circumstances discussed above, we are not willing to set aside his determination of credibility.

REDHIBITION CLAIM

Plaintiffs-appellants cite de la Houssaye v. Star Chrysler, Inc., 284 So.2d 63 (La.App. 4th Cir. 1973); writ denied 286 So.2d 662, and argue that where a seller attempts to remedy a defect in the thing sold, the one year prescription for bringing the redhibitory action begins to run only from the time the seller abandons his attempt to repair the defect. We do not disagree with this proposition. See also Dominque v. Whirlpool Corporation, 303 So.2d 813 (La.App. 3rd Cir. 1974) and the cases cited therein.

In our opinion, however, there was no attempt to remedy a “defect” in this case. There was nothing shown which rendered the car “either absolutely useless, or its use so inconvenient and imperfect that it must be supposed the buyer would not have purchased it, had he known of the vice”. LSA-C.C. Art. 2520. The record affirmatively established that the car was brought into the shop on numerous occasions. However, uncontroverted experts reviewed the work that was done and testified that the servicing was normal for a similarly used car.

Within ten days of purchasing the car at issue, it was driven 3,000 miles; within twenty-three days, it was driven approximately 5,300 miles. In December, 1969, less than nine months after purchase, the car had been driven over 30,000 miles. Mr. Hagan testified that he had used nine different cars since 1964.

Our review of the record, especially the expert testimony, leads us to the conclusion that on the merits, no redhibitory defect and therefore no attempts to remedy a red-hibitory defect have been shown.

Accordingly, the judgment of the court below is affirmed. Appellants are to pay all costs.

AFFIRMED.


text:
    John W. PURVIS and Mildred Purvis v. STATEWIDE TRAILER SALES, INC.
    No. 10854.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.

      Kenneth W. Ford, Morgan City, for plaintiffs and appellants.
    Elton A. Darsey, Houma, for defendant and appellee.
    Jack C. Frugé, Ville Platte, for Macon Industries, Inc., third party defendant and appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiffs John W. and Mildred Purvis (Appellants) appeal from judgment, which rescinded their purchase of a mobile home from defendant Statewide Trailer Sales, Inc. (Appellee) because of redhibitory defects, but which denied Appellants’ claims for legal interest, reimbursement of finance charges and damages for mental anguish, discomfort and inconvenience. Appellee has answered the appeal seeking reversal of the order of rescission and, alternatively, credit for Appellants’ use of the trailer. We affirm in part and reverse in part.

On September 25, 1972, Appellants purchased from Appellee a 1972 Summit Mobile Home. In consideration Appellants paid $100.00 cash, traded in a used trailer home for which credit of $1,150.00 was given and executed their promissory note for the remaining principal amount of $9,679.50, which included transfer fees, filing fees and insurance, together with a finance charge of $7,258.50, aggregating $16,938.00. The note, secured by chattel mortgage and vendor’s lien on the trailer, was payable in 120 monthly installments of $141.15. Appellee negotiated the note to National American Bank, New Orleans, who became and remained its holder in due course. When this matter was tried on February 19,1975, all payments on the note were current.

The record contains seriously contradictory testimony regarding the type of trailer Appellants agreed to purchase. Appellants produced a copy of a purchase agreement dated September 25, 1975, bearing Number 002859, in the sum of $12,276.50 and listing a washer, dryer and central air conditioning as optional equipment. Appellants testified, however, that several days after the above purchase order was signed, they voluntarily signed another order on the representation of Appellee’s salesman that a $500.00 error, adverse to Appellee, had been made in quoting the price of the trailer involved. Appellants acknowledged signing a second instrument, entitled Sale and Chattel Mortgage, which listed no optional equipment and recited a total price of $10,-829.50. Conversely, Appellee introduced in evidence Purchase Order Number 003965, also dated September 25, 1975, listing the same figures and amounts as the second instrument signed by Appellants, which instrument bears signatures purporting to be those of Appellants. However, Appellants deny having signed this particular document.

Within a few hours of Appellants’ occupancy of the trailer, after it had been set up by Appellee at a site which Appellants designated, Appellants began to experience grave defects in their new home. The trailer, a three bedroom, two bath mobile home, was occupied by Appellants and their three children. When Mrs. Purvis first entered the trailer after returning from work she discovered that the oven was inoperable and could not be used to prepare the night meal. Shortly thereafter, she found that the electrical outlets on one entire side of the trailer were defective to the extent that neither the lights or any appliances on that side could be used. Further use of the trailer home showed a leak beneath the kitchen sink and also beneath the toilet in one of the bathrooms. Within a few days a short in the electrical system caused a fire which resulted in considerable smoke damage to the trailer and its contents. Several leaks were found in gas supply line to one of the two water heaters in the trailer. During rainy weather it developed that the trailer leaked extensively where the walls joined the roof and also around the windows because of improper sealing. As a result rainwater caused considerable damage to the carpeting, flooring and paneling inside the trailer. Water damage from the leaking toilet progressed to the point that the water heater fell through the floor and was damaged such that Appellants had to replace it. Because of the defective wiring and the fear of an electrical fire, Mrs. Pur-vis would turn off the refrigerator when leaving for work each morning because the trailer was vacant until the afternoon. She removed her food to another refrigerator situated in a shed on the premises. On returning from work she brought the food back into the trailer and turned on the refrigerator.

Appellants brought this action on August 15,1973, approximately 11 months after the purchase. Appellee, a distributor, third-partied the manufacturer, Macon Industries, Inc. The trial court rendered judgment: (1) Rescinding the sale; (2) Ordering Appellants to deliver the trailer to Appel-lee; (3) Directing Appellee to return the $10,088.00 purchase price to Appellants; and (4) Granting Appellee’s demand against the manufacturer, a then bankrupt corporation.

On appeal, Appellants complain of the rejection of their demands for interest, the amount of finance charges for which Appellants are liable on the purchase money note now held by a holder in due course and for damages for their inconvenience and discomfort. Appellee challenges the correctness of the judgment ordering rescission. Alternatively, Appellee contends it is a seller in good faith, which limits Appellants’ recovery, and also claims credit for the rental value of the trailer during Appellants’ use thereof. A buyer’s right of redhi-bition against a good faith seller is governed by La.Civ.Code Articles 2520 and 2531, which provide:

“Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
“Art. 2531. The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.”

To prevail in an action for redhibition, a purchaser must establish: (1) that the thing sold is absolutely useless for its intended purpose or that its use is so inconvenient that it must be supposed he would not have made the purchase had he known of the defects; (2) that the defects existed at the time of purchase but were neither known nor apparent to him; and (3) that the seller could not or would not correct the defects when given an opportunity to do so. La.Civ.Code Articles 2520, 2521, 2522, 2530 and 2531.

The record establishes beyond doubt that the trailer was sufficiently defective to entitle Appellants to rescission of the sale. The defects, not apparent at the time of purchase, became manifest immediately upon Appellants’ occupancy of the trailer home. It is equally clear from the record that the defects existed prior to the sale and were of such nature and extent that no reasonable individual would have purchased the unit with knowledge of its condition. Additionally, the defects were not known to Appellants beforehand and were not of such nature as to be apparent or discoverable on simple inspection.

Appellants occupied the trailer continuously since its purchase on September 25, 1972. When Mrs. Purvis attempted to use the mobile home for the first time, she found the oven inoperable and the lighting system out on one side. She immediately contacted Appellee’s salesman, Allemand, who informed her the matters would be corrected. As the other defects materialized, Appellee was informed. Some repairs were attempted by Appellee, which led Appellants to believe all of the problems would be rectified. When the leakage and electrical problems were not corrected by Appel-lee, Appellants made the required repairs at Appellants’ expense. On July 18, 1973, Appellants formally tendered the trailer to Appellee, after having twice notified Appel-lee rescission would be sought if the defects were not corrected.

Appellee’s contention that Appellants waived their right to rescission by continued use of the trailer, is without merit. Our jurisprudence is well settled to the effect that use prior to tender, does not constitute waiver of the buyer’s right to rescission, where such use occurs while the seller is undertaking repairs and thus leading the buyer to believe that the defects can be corrected. See Breaux v. Winnebago Industries, Inc., La.App., 282 So.2d 763, and authorities therein cited.

Where a buyer does not intend to relinquish his right of rescission but makes such use of the object as is practical or which the circumstances require, continued use does not constitute waiver of the right of rescission. Where a seller refuses tender, especially of a motor vehicle, if the buyer cannot make such limited use of the vehicle as his situation requires, the buyer has no recourse but foregoing his action of rescission or purchasing a second vehicle while paying for the defective vehicle, the mortgage on which in most cases is held by a holder in due course, which latter situation the average individual cannot afford. Breaux v. Winnebago Industries, above; Brown v. Mid City Motors, Inc., La.App., 248 So.2d 27. In this instance the record shows that the note on subject trailer is held by an in due course third party. The record also shows that Appellants could not afford payment of the notes in question and rent for a livable home at the same time. Under the circumstances, Appellants’ use of the trailer following tender, does not constitute waiver of their right to rescission. Ticheli v. Silmon, La.App., 304 So.2d 792; Dunlap v. Chrysler Motor Corp., La.App., 299 So.2d 495.

La.Civ.Code Article 2531 provides that the seller in good faith “must restore the purchase price, and reimburse reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it”.

In an action of redhibition, the buyer is entitled to reimbursement of the purchase price plus finance charges, sales taxes, fees and compulsory insurance costs. Lee v. Blanchard, La.App., 264 So.2d 364.

In this instance the trial court ordered the seller to reimburse Appellants only the purchase price of $10,088.00 and denied Appellants recovery of a $100.00 cash down payment; filing fees of $29.50; compulsory insurance in the sum of $712.00; and finance charges of $7,258.50. Appellants are entitled to restitution of these amounts.

To protect the trailer from further damage from the leaking roof and windows, Appellants repaired these defects at a cost of $185.00. Appellants are entitled to recover this amount as a reasonable expenditure to preserve the trailer from further damage or deterioration. La.Civ.Code Article 2531; Busenlener v. Peck, La.App., 316 So.2d 27.

Appellants’ claims for damages for mental anguish, discomfort and inconvenience endured as the result of having to live in a defective mobile home are not recoverable under the circumstances, because Appellee is not shown to have been aware of the defects prior to the sale and to have failed to declare them. La.Civ.Code Articles 2531 and 2545 expressly limit liability of a good faith seller to reimbursement of the purchase price plus reasonable expenses incurred by the buyer in preservation of the object. Appellee was not the manufacturer of subject trailer. The record contains no evidence that Appellee was aware of the defects prior to the sale. Defects of such a nature as would not be observed by an ordinary dealer without taking the vehicle apart and subjecting it to minute inspection do not subject the dealer to liability as a vendor in bad faith or one having knowledge of defects. In such cases the dealer is responsible only for return of the purchase price in addition to buyer’s expenses incident to the sale. Baughman v. Quality Mobile Homes, Inc., La.App., 289 So.2d 376. The trial court properly rejected Appellants’ claims for damages for mental anguish, inconvenience and discomfort.

Appellee’s alternative claim for credit for the rental value of the trailer in the alleged sum of $175.00 per month during the tenure of Appellants’ occupancy is based on the testimony of Appellee’s General Manager, Carol Parr, who testified that a trailer similar to subject trailer would ordinarily rent for the stated sum.

Our review of the jurisprudence on this latter issue discloses some uncertainty and seeming conflict. The earlier cases disallowed the seller credit for the value of the buyer’s use derived from the object of the sale. More recent authorities, however, particularly those commencing in the early 1960’s, tend to allow the seller credit where the buyer has derived use value from the object of a sale. See Note, 30 La.L.R. 508; Breaux v. Winnebago Industries, Inc., above; Prince v. Paretti Pontiac Company, Inc., La., 281 So.2d 112, in which the Supreme Court recognized that credit was due a vendor for the use of an object by the purchaser but which declined to allow such recovery for failure of proof. We also note the following recent cases which have declined to allow a vendor rental credit in cases of this nature: Clark v. McBride Dodge, Inc., La.App., 289 So.2d 841; Media Production Consultants, Inc., v. Mercedes-Benz of North America, Inc., La., 264 So.2d 686; Brown v. Mid City Motors, Inc., above.

We find that any lingering doubt concerning this issue appears to have been dispelled by the enactment of Act 673 of 1974, which amended La.Civ.Code Article 2531 to expressly provide that the seller’s liability for reimbursement should be subject to credit for the value of any fruits or use which the purchases has from (the thing purchased). It also appears that the most recent jurisprudence has consistently followed the mandate contained in La.Civ. Code Article 2531, as amended in 1974. See First National Bank of Ruston v. Miller, La.App., 329 So.2d 919; Weaver v. Fleetwood Homes of Mississippi, La.App., 327 So.2d 172; Peoples Furniture and Gift v. Carson Hicks/Friedrichs Refrigeration, Inc., La.App., 326 So.2d 919; Smith v. Max Thieme Chevrolet Company, La.App., 315 So.2d 82; Ticheli v. Silmon, above. We find that Appellee is entitled to credit for Appellants’ use of the trailer since its purchase.

Notwithstanding the testimony of Appellee’s General Manager that subject trailer possessed a rental value of $175.00, we deem it obvious that a motor home with the defects possessed by the subject trailer could not conceivably have brought a rental of $175.00 per month. In addition to the noted defects which would have rendered subject trailer highly undesirable as a modern home, subject trailer was not air conditioned. We find the maximum rental value in this instance would be $60.00 monthly. See Weaver v. Fleetwood Homes of Mississippi, Inc., above.

Although La.Civ.Code Article 2531 does not expressly allow a purchaser credit for the seller’s use of the purchase price, we believe such an allowance proper and necessary to achieve the inherent purpose of redhibition which is to restore the parties to the same position as they were prior to the sale. This principle is supported by our earliest redhibition cases as evidenced by Farmer v. Fisk, 9 Rob. 351, and Harvey v. Kendall, 2 La.Ann. 748, as the very recent decision in Smith v. Max Thieme Chevrolet Company, above.

For a trailer priced at $10,088.00 Appellants signed a note in the sum of $16,938.00 which included certain fees, finance charges and insurance. The record does not show how much Appellee received for the note when the paper was negotiated to its present holder. We presume, therefore, Appellee was paid at least the purchase price of $10,088.00. Appellee has had the use of this sum in addition to the $100.00 down payment since approximately October 1, 1972. We find that Appellants are entitled to recover interest at the legal rate of 7% per annum on said sum from October 1, 1972, until Appellee returns said sum to Appellants.

It is ordered, adjudged and decreed: (1) that the judgment of the trial court in favor of Appellants John W. and Mildred Purvis against defendant Statewide Trailer Sales, Inc., rescinding the sale of the trailer home involved herein, be and the same is hereby affirmed; (2) that Appellants deliver custody of subject trailer to Appellee and that Appellee return to Appellants all payments made by Appellants on the note in question and also return to Appellants or hold Appellants harmless for the balance of all unpaid installments due on said note, subject to a credit of $60.00 for each month that Appellants have occupied or shall continue to occupy the trailer in question; (3) that Appellee pay Appellants interest at 7% per annum on the sum of $10,188.00 from October 1, 1972, until Appellee shall have made the reimbursement hereinabove ordered, together with legal interest on all sums awarded Appellants herein, from date of judicial demand, until paid; and (4) that Appellee Statewide Trailer Sales, Inc., pay all costs of these proceedings.

Affirmed in part, reversed in part and rendered.


author: COVINGTON, Judge:

text:
    Doris D. SMITH v. Joseph R. GERACE, Administrator of the Division of Employment Security, Department of Labor, State of Louisiana.
    No. 10859.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Douglas H. Greenburg, Houma, for plaintiff and appellee.
    Marion Weimer, James A. McGraw, Baton Rouge, for defendant and appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This is an appeal by the Administrator of the Department of Employment Security, Department of Labor, State of Louisiana, from a judgment of the district court reversing the decision of the Louisiana Board of Review of the Department of Employment Security which denied the claimant’s appeal from a determination by the Department of Employment Security that under LSA-R.S. 23:1602(2) the claimant was “unavailable for work,” and consequently, not entitled to unemployment benefits. The effect of the district court’s decision is to allow the claimant unemployment benefits as provided by law.

This case arises out of a claim for unemployment compensation benefits filed by Doris D. Smith, the claimant. The claimant worked approximately three years for Wilson’s Distributors in the City of Houma, Parish of Terrebonne, State of Louisiana, prior to the occurrence of the circumstances out of which her claim arose. She worked as a clerk, earning $2.15 an hour and worked a 35-hour week. She last worked on or about June 8 or 9, 1974. She took a leave of absence to take care of her two little children and for medical reasons. After approval of her leave of absence, the Department of Rehabilitation informed the claimant that it was feasible for her to attend summer classes at Nicholls State University and that the Department of Education would pay for the education. The claimant then began attending classes. She attended classes from 8:00 a. m. to 12:00 noon, five days each week. Because of her financial condition, it was necessary for her to bring her two little children to school, where they would more or less look out for themselves or be looked after by an acquaintance while the claimant attended class. Thereafter, when the claimant attempted to resume her employment with Wilson’s Distributors, she was advised that her employment had been terminated, effective June 10, 1974.

The local agency of the Department of Employment Security ruled that the claimant was ineligible to receive unemployment compensation on the grounds that she had been discharged for misconduct in connection with her employment. The record discloses that there was no foundation whatever for disallowing the claimant’s claim for benefits based on misconduct. The employer never appeared at the hearing, or offered any evidence to substantiate a charge of misconduct. On this question the Appeals Referee ruled: “The facts in this case do not show that the claimant at the time of applying for a leave of absence gave her employer a false statement. Under these circumstances, there can be no support of the Agency’s finding that the claimant was discharged for misconduct in connection with her employment.” This is not an issue before us.

Then, an appeal was filed by the Department of Employment Security, which, after a second hearing before the Appeals Referee, resulted in a determination that the claimant was not available for employment in accordance with LSA-R.S. 23:1602(2).

Subsequently, the claimant appealed this determination to the Board of Review, which affirmed the ruling of the Appeals Referee. Thereafter, the claimant brought suit in the district court to overturn the administrative rulings which had denied her compensation benefits. The hearing before the district court resulted in a favorable ruling to the claimant, which is the ruling now before this Court on appeal.

The Department contends that under LSA-R.S. 23:1602(2) the claimant was “unavailable for work”, and consequently, should be denied benefits.

LSA-R.S. 23:1602(2) provides:

“(2) An individual, except as provided in Subsection (1) of this section, will be deemed unavailable for work in any week in which it is found that the individual is attending a regularly established school, college, university, hospital, or training school (excluding, however, night school or part-time training courses, vocational technical schools and apprenticeship classes), or is in any vacation period intervening between regular school terms during which he is a student of any such regularly established educational institution, hospital, or training school. However, these provisions do not apply to any individual who, subsequent to his enrollment in and while attending a regularly established school, has been regularly employed and upon becoming unemployed makes an effort to secure work and holds himself available for suitable work with his last employer, or holds himself available for any other employment deemed suitable. If it is found that any individual received benefits who was not eligible therefor by reason of having resumed the status of a student at the end of a vacation period, such individual will be liable to repay a sum equal to the benefits thus received.”

The Department’s position is that during the time the claimant sought benefits she was a full-time student in college; and, being a college student without “a history of work experience while attending school,” she is not entitled to unemployment compensation benefits. The Department stresses the first portion of the provision.

The claimant’s position is that she was still regularly employed when she began attending college and had held, and still holds, herself available for suitable employment. The claimant stresses the exclusionary portion of the provision.

The facts show, and it was so found by the administrative tribunal, that the claimant was employed by Wilson’s, though on leave of absence, at the time she began regularly attending school, and subsequent to her attending school. No one has questioned this claimant’s willingness to work, and it is apparent that she is willing to work and considers herself available for any suitable employment.

Thus, we have no quarrel with the case of Barber v. Lake Charles Pipe and Supply Company, 148 So.2d 326 (La.App. 3rd Cir. 1962), in its holding that administrative determinations of fact are conclusive “. . . unless wholly without evidential support, or wholly dependent on a question of law, or clearly arbitrary or capricious.” However, in our opinion, under the evidence at the administrative hearing, the agency’s determination that the claimant is “unavailable for work” is not a finding of fact supported by sufficient evidence which is conclusive upon the courts in a judicial review of the agency’s actions. See Broussard v. Administrator, Division of Employment Security, 121 So.2d 268, 270 (La.App. 1st Cir. 1960).

In resolving the question of whether the claimant was regularly employed while on leave of absence, we find the case of South Central Bell Tel. Co. v. Administrator, Division of Employment Security, 247 So.2d 615, 617 (La.App. 3rd Cir. 1971), writ ref. 259 La. 78, 249 So.2d 210 (1971), has decided a similar question favorable to the claimant.

South Central Bell is a case in which the claimant raised a leave of absence as a defense to the employer’s attempt to disqualify her on the grounds of voluntarily quitting her job as a telephone operator. The court interpreted “leave of absence” as meaning that “the employee is given permission to be absent from work for a certain time at the end . of which the employee will return to his employment status.” The court then held that “where there is a leave of absence mutually agreed upon by the employer and the employee, the employee does not voluntarily quit his job.” Under this rationale, the claimant in the instant case did not voluntarily quit her employment with Wilson’s. She was terminated through no fault of her own on June 10, 1974 by Wilson’s, her employer, when the employer so notified her in writing.

Since the claimant started attending school regularly on June 5, 1974, and was regularly employed at least until June 10,1974, we can come to no other conclusion but that she is entitled to recover benefits under LSA-R.S. 23:1602(2). The claimant comes within the exclusionary portion of this provision: “. . . (T)hese provisions do not apply to any individual who, subsequent to his enrollment in and while attending a regularly established school, has been regularly employed and upon becoming unemployed makes an effort to secure work and holds himself available for suitable work . . ..”

We feel, as we did in Hale v. Gerace, 324 So.2d 558, 561 (La.App. 1st Cir. 1975), writ ref. 326 So.2d 344 (La.1976), . . that the Louisiana Employment Act is within the class of social and economic legislation which should be interpreted so as to extend its benefits as far as possible within the bounds imposed by the expressed legislative restriction,’ ” citing Lambert v. Brown, 169 So.2d 4, 6 (La.App. 2nd Cir. 1964). We adhere to the principle that the Louisiana Employment Act is to be construed liberally in favor of the unemployed worker, Southern Hardware and Lumber Company v. Vesich, 250 So.2d 780, 784 (La. App. 4th Cir. 1971). A liberal construction in this case requires us to find that the claimant herein is entitled to unemployment benefits, as did the district court. .

The claimant has also asked us to fix attorney’s fees for her counsel in this case. The administrator must in the first instance approve attorney’s fees; LSA-R.S. 23:1692; Broussard v. Administrator, Division of Employment Security, supra, 121 So.2d at 271.

Accordingly, we affirm the judgment of the district court awarding full unemployment benefits to the claimant as provided by law, and remand to the Board of Review for the purpose of fixing the amount of said benefits and the approval of the amount of the attorney’s fees.

Appellant is cast for all costs for which it is legally liable.

AFFIRMED AND REMANDED TO THE BOARD OF REVIEW.

      . This finding was made by the appeals referee on October 15, 1974, which finding was not a part of the transcript filed by the Department of Employment Security but was filed in the record by appellee on December 3, 1974. While this filing was not in accord with the statute, the Department has agreed that we can consider this finding a part of the record.


text:
    CAST-CRETE CORPORATION v. WEST BARO CORPORATION and Charles Carter and Company, Inc.
    No. 10860.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Feb. 1, 1977.

      Paul M. Hebert, Jr., Baton Rouge, for plaintiff-appellee.
    George L. Clauer, III, Walton J. Barnes, II, Walton J. Barnes, Barnes & Barnes, Baton Rouge, for defendant-appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge:

On March 12, 1974, Charles Carter & Company, Irie., (Carter) defendant-appellant, sent a letter to Cast-Crete Corporation, (Cast-Crete), plaintiff-appellee, requesting that the latter bid on furnishing the second floor slab and roof joists for a motel that Carter was constructing as general contractor. After various communications, Cast-Crete prepared shop drawings for their bid and on March 21, 1974, Ragan, Cast-Crete’s representative, came from Florida to Carter’s office in Baton Rouge. Marix, a superintendent of Carter, escorted Ragan to the construction site and introduced him to Durand, Carter’s job superintendent on the motel job. Ragan, Marix and Durand discussed the second floor slab and roof joists, but according to Marix and Durand, no decision was made at that point as to whether Cast-Crete would pre-cut the necessary plumbing holes in the concrete. In any event, after Ragan and Marix returned to Carter’s office, Marix signed Cast-Crete’s shop drawings, “approved for fabrication — Joe H. Marix — Charles Carter Co.” The drawings did not show any holes for plumbing.

On the same date, Cast-Crete bid $51,-564.00 to provide the slabs and joists “as detailed on Cast-Crete’s shop drawings dated March-21,1974.” Payment was stated to be twenty days from date of invoicing. The bid contained an approval block for Carter, but this was never executed. Instead, Carter issued a purchase order on the same date for the same amount with payment stated as being due 30 days after receipt.

It was made clear to Cast-Crete that Carter’s time schedule was extremely tight. Shipments began April 25,1974, and continued until July 11, 1974. Invoicing occurred when the slabs and joists were shipped. On May 8,1974, Carter notified Cast-Crete that his architect needed additional information before the shop drawings could be approved. No mention was made of the lack of plumbing holes in the plans. Carter made one payment on June 12, 1974, but only for items delivered through May 25, 1974.

On July 8, 1974, Carter sent Cast-Crete an invoice representing the costs incurred in cutting the plumbing holes. On July 19, 1974, Cast-Crete by letter notified Carter that payment for items shipped from May 25 to June 25 had not been received. On July 23, 1974, Cast-Crete notified Carter that “Due to your position on these matters, all shipments to your job have been stopped. They will not resume until we have received payment for the full amount of our contract . . . less prior payment received . . .”. At this point, Carter had received $17,332.11 worth of slabs and joists that it had not paid for. There were only $4,038.75 worth of joists left to be shipped under the contract. These joists had already been manufactured by Cast-Crete.

Carter manufactured 96 joists at the job-site and completed the motel. On November 14, 1974, Cast-Crete filed a lien affidavit against the motel property and a suit against Carter and the owner of the motel to enforce the lien. Subsequently, after a lien bond was filed, Insurance Company of North America (ICNA), the surety thereon, was substituted for the owner as a defendant. Carter reconvened alleging that the concrete slabs were not in accordance with the plans and specifications, and that Cast-Crete refused to deliver all the joists. Carter demanded $3,046.46 for handling and storage expenses allegedly incurred when the slabs and joists were allowed to stay on railroad cars because of shipment without advance notice to Carter, $11,098.19 for altering the slabs and joists, $1,850.00 liquidated damages, and $2,500.00 attorney fees.

The court below found that Carter breached the contract by stopping payments, and that therefore Cast-Crete was justified in discontinuing deliveries. Judgment was signed in favor of Cast-Crete against Carter and ICNA, in solido, in the amount of $21,370.80 with legal interest, costs of court and costs of filing of the lien. The reconventional demand of Carter was dismissed. Carter and ICNA have timely appealed. We amend and affirm.

Carter specifies that the trial court erred:

1. In finding that Marix was impliedly authorized to sign the shop drawings;

2. In finding that Cast-Crete was justified in not delivering the remaining materials called for in the agreement and in demanding payment in full prior to shipment;

3. In finding that Cast-Crete is entitled to recover the price of the undelivered items; and,

4. In finding that Carter is not entitled to reimbursement for the expense of manufacturing joists at its site in lieu of the joists that Cast-Crete refused to ship.

SPECIFICATION ONE

Carter’s contention that Marix did not have authority to sign the shop drawings is untenable. It is obvious that Ragan was led to believe that Marix held a position of authority with Carter. Marix had a desk across from the company’s vice president. It was Marix who performed the managerial function of escorting Ragan to the jobsite. Marix also participated in the discussions as to whether or not there would be holes in the slabs and joists. Ma-rix “approved for fabrication” the shop drawings. Certainly the situation indicated that Marix had authority. See Dart Distributors, Inc. v. Foti Enterprises, Inc., 271 So.2d 705 (La.App. 1st Cir. 1972) and United States Fidelity & Guaranty Co. v. Dixie Park and Service, Inc., 262 La. 45, 262 So.2d 365 (1972) for application of the implied authority doctrine.

Carter’s contention that the shop drawings were never approved is contradicted by the testimony of Charles Carter himself, who acknowledged that the shop drawings were approved by his architects, admittedly the proper party, on July 1, 1974.

Thus, it is clear that the shop drawings formed part of the contract, and that the manufacturing of the slabs and joists without holes for plumbing was proper.

SPECIFICATION TWO

This specification puts at issue who breached the contract. Did Cast-Crete breach the contract by refusing on July 23, 1974, to deliver the remaining $4,038.75 worth of joists until it was paid in full, or had Carter breached the contract earlier?

It is evident that at least by July 8, 1974, Carter had breached the contract. On that date, it formally notified Cast-Crete that Cast-Crete was responsible for $3,538.92, representing the amount that Carter allegedly paid to have holes drilled in the slabs and joists. This attempted set-off or back charge was unjustified because, as discussed above, Cast-Crete provided the correct items in accordance with the approved drawings, i. e. without holes. Therefore, Cast-Crete was not liable for Carter’s additional expense. It is clear that at least $12,000 in payments for items shipped May 27, 1974, through June 21, 1974, were more than 30 days' past due when Cast-Crete notified Carter on July 23, 1974, that no more shipments would be made until payment in full was received. In spite of numerous demands by telephone for payment and the July 18, 1974, letter requesting payment, it is obvious that Carter was withholding any payment until Cast-Crete recognized the $3,538.92 back charge. Under these circumstances, Cast-Crete was justified in refusing to ship the remaining joists.

SPECIFICATION THREE

Carter argues that Cast-Crete cannot recover the price of the undelivered items. We have found that Cast-Crete stood ready to make delivery, and actually offered to do so, conditioned only upon prior payment. Carter had already breached the contract by failing to pay for previously delivered items. Under these circumstances, we cannot say that Cast-Crete had to deliver the items to recover the price of the undelivered items. Tender would have been a vain and useless thing. The cases of Minden Hardware and Furniture Company v. Hartman, 16 La.App. 456, 134 So. 302 (2nd Cir. 1931) and Boelto v. West, 185 So. 471 (La.App.Orl.1939) cited by Carter are inapplicable. Instead, see Chiquita Trinkets, Inc. v. Mardi Gras Productions, Inc., 164 So.2d 375 (La.App. 4th Cir. 1964) writ denied 246 La. 718, 167 So.2d 301.

The undelivered items were manufactured specifically in accordance with the specifications of the shop drawings. Testimony established that the undelivered joists could not be used in any different construction. Therefore, Cast-Crete will not be able to re-sell the items and so recoup its loss.

SPECIFICATION FOUR

Our holding that Cast-Crete was justified in withholding shipment, above, is dispositive of Carter’s contention that it should be paid the cost of manufacturing the needed joists.

The judgment below was cast against the Insurance Company of North America (surety) and Carter, in solido, in the amount of $21,370.80. Cast-Crete acknowledges on appeal that this was erroneous as $4,038.76 of materials were not delivered to the job.

Accordingly, for the above reasons, the judgment of the lower court is amended, so that, there be judgment in favor of plaintiff and against Charles Carter and Company, Inc. and Insurance Company of North America, jointly and in solido, in the sum of $17,332.04 and against Charles Carter and Company, Inc., in the further sum of $4,038.76; together with legal interest from date of judicial demand until paid, all costs of court, including $25.00 for preparation and recording the lien filed herein.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Ragan testified that Hayes was present when Marix signed the drawings.

      . Carter argues that the apparent authority must be manifested in the presence of the person relying thereon. We find that Marix’s authority was evident to Ragan and that Carter created the situation.

      . Carter’s argument that Cast-Crete’s July 23, 1974, letter constitutes anticipatory breach is unfounded. Carter actively breached the contract by attempting the $3,538.92 back charge and again breached the contract by failing to pay for previous shipments after demand by Cast-Crete. Cast-Crete was ready and able to ship the remaining items, but for, Carter’s breach. See Smith v. Anders, 148 La. 474, 87 So. 241 (1921) and Bunge Corporation v. McGuffie, 317 So.2d 227 (La.App. 3rd Cir. 1975) where it was held that the refusal to pay promptly for past shipments allows the seller/shipper to discontinue shipments until paid.


text:
    Edgar R. ANDRUS, Individually and as Administrator of the Estate of his minor son, Ted Andrus v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE, et al. (two cases).
    No. 10899.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    D. P. Schwarz and Daniel E. Becnel, Jr., Reserve, and Robert J. Mack, Hammond, for appellant.
    France W. Watts, III, Franklinton, and Clint L. Pierson, Jr., Covington, for appel-lees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

William E. Jourdan, Jr., The Travelers Insurance Company, and the State of Louisiana, Department of Public Safety (Appel-lees) have moved dismissal of the appeal taken herein by Edgar R. Andrus, Individually and as Administrator of the Estate of his minor son, Ted Andrus (Appellant), for failure of Appellant to timely file the appeal bond ordered by the trial court. We grant the motion and dismiss the appeal.

Judgment was rendered herein on August 29, 1975, rejecting Appellant’s demands, with prejudice. On September 5, 1975, formal judgment was signed to said same effect and Appellant timely applied for a new trial. A hearing of Appellant’s application for new trial was set for and held October 10, 1975, with counsel for Appellant present in court. The trial court, in the presence of counsel for Appellant, denied the application for new trial. Appellant applied for a devolutive appeal which was granted by the trial court conditioned upon Appellant furnishing bond in the sum of $5,000.00. The required bond was posted January 12, 1976.

A devolutive appeal must be taken and security therefor furnished within ninety days of the court’s refusal to grant a new trial where applicant is not entitled to notice of such refusal pursuant to LA-C. C.P. Article 1914. Counsel for Appellant being present when the trial court denied the application for new trial, Appellant was not entitled to notice of said judgment. LA-C.C.P. Article 1914. Since Appellant was not entitled to notice of judgment denying his application for new trial, the ninety day delay for taking and perfecting a devolutive appeal commenced October 11, 1975, and expired January 8, 1976. However, Thursday, January 8, 1976 was a legal holiday (Battle of New Orleans), consequently the delay for perfecting the instant appeal was extended to and expired Friday, January 9, 1976. The bond, filed Monday, January 12, 1976, was therefore untimely.

Failure to timely file the required appeal. bond necessitates dismissal of the appeal for failure of appellate jurisdiction to timely attach. Bennett v. Allstate Insurance Company, La.App., 303 So.2d 770, and authorities cited therein.

Appellant’s motion to dismiss this appeal is granted and Appellant’s appeal is dismissed, with prejudice, at Appellant’s cost.

Appeal dismissed.