text:
    GREATER PLEASANT GREEN BAPTIST CHURCH OF BATON ROUGE, INC. v. David ROBERTSON.
    No. 11119.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Vanue B. Lacour, Baton Rouge, of counsel for plaintiff Greater Pleasant Green Baptist Church of Baton Rouge, Inc. and third party defendant Robert Boykins ap-pellee.
    Patsy Jo McDowell, Baton Rouge, of counsel for defendant David Robertson appellant.
    Before SARTAIN,- COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

Plaintiff-appellee sued defendant-appellant alleging that defendant placed an unauthorized mortgage against the property of plaintiff in order to obtain funds for personal use. Plaintiff asked that the mortgage be removed and for judgment against the defendant for amounts paid by plaintiff and which would have to be paid by plaintiff as a result of the alleged unauthorized mortgage. Defendant has appealed from a judgment in plaintiff’s favor in the amount of $3,054.42, together with interest thereon at the rate of 7% per annum from the date of the judgment.

This litigation involves two mortgages placed on the property of plaintiff, Greater Pleasant Green Baptist Church of Baton Rouge, Inc. (hereinafter referred to as the Church). Both of the mortgages were placed on the property by defendant David Robertson, president of the Church’s trustees. It is undisputed that the Church approved the first loan and mortgage dated December 15, 1966. It is also undisputed that said mortgage was cancelled in August, 1967 and a new mortgage dated August 29, 1967 was recorded on the Church’s property.

It appears from the record that the loan and mortgage dated August 29, 1967 came to the attention of the Church when an insurance claim for wind damage arose and the settlement check came made payable to the mortgagee as well as to the Church. While the documents in connection with the new mortgage were signed by certain other officers of the Church’s trustees, the officers testified that they did not know what they signed and signed whatever the defendant requested. At any rate, there is no record or evidence of a meeting or authority being given for the new mortgage.

The first of the two loans was made for the purpose of making repairs to the Church. This work was to be done by Robert Boykin, who the defendant made a third party defendant alleging that Boykin had not done the work he had agreed to do.

The Trial Judge, after hearing the testimony of the various witnesses, dismissed the third party demand against Boykin and rendered judgment against the defendant, David Robertson for $3,054.52. He found that David Robertson continued to receive the monthly payment of $66.00 per month from the Church after the loan should have been paid off for eight months or a total of $528.00. He also found that the Church paid monthly installments of $73.63 on the unauthorized mortgage from March 1975 to September 1975 or a total of $515.41 to prevent foreclosure on the second mortgage. The promissory note secured by the second mortgage had a balance of $1,911.38 due at the time of trial of this matter. These three items total $2,954.52 rather than $3,054.52 as awarded by the Trial Court, and the judgment should be amended accordingly.

Appellant presents nothing to this court except a request that the Trial Judge’s findings of fact be reversed.

There is ample testimony in the record supporting the Trial Judge’s conclusion that the second mortgage entered into by defendant in behalf of the Church was unauthorized and also that the work in question was done by Robert Boykin.

The jurisprudence of this state is well settled that a reasonable evaluation of credibility and of inferences of fact by the Trial Court will not be disturbed on appeal. Canter v. Koehring, 283 So.2d 716 (La.1973) citing numerous authorities.

The judgment of the Trial Court in favor of Greater Pleasant Green Baptist Church of Baton Rouge, Inc. and against David Robertson in the sum of $3,054.52 is amended to read the sum of $2,954.52, and in all other respects, the judgment is affirmed. Defendant-appellant is to pay all costs of this appeal.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Though plaintiff prayed for cancellation of the unauthorized mortgage, the Trial Court judgment was properly limited to a monetary award.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Dave Haas EWELL, Jr., et al. v. PETRO-PROCESSORS OF LOUISIANA, INC., et al.
    No. 11278.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Granted May 6, 1977.
    Bryant W. Conway, Baker, for appellants.
    John R. Tharp, Maurice J. Wilson, Jr., of Breazeale, Sachse & Wilson, Roger M. Frit-chie, Edward F. Glusman, R. Gordon Kean, Jr., and John Dale Powers, John W. Swan-ner and A. G. Seale, Paul Marks, Jr., Baton Rouge, for appellees.

      Before S ART AIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

ON MOTION TO DISMISS

This matter is before us on a motion by defendants-appellees to dismiss the appeal of plaintiffs.

Suit was filed on July 17,1970. A motion for security for costs was-filed by Petro Processors, Inc. and Travelers Insurance Company on July 24, 1970, alleging that because of the complexity of the questions involved in this suit it would be necessary for defendants “to obtain the testimony of experts and to pay or be responsible for their fees; to obtain technical reports and evaluations and to pay or be responsible for these costs, the cost of one such report having already been estimated by Shilstone Laboratories as $30,000.00; to take depositions of several witnesses, the cost of which Defendants must advance; and to subpoena numerous witnesses for trial, some of whom will be entitled to have their travel expenses, per diem and hotel and meal expenses deposited by Defendants, all of which costs and expenses will ultimately be taxed as costs herein, and which Plaintiffs may finally be condemned to pay.” The motion further alleged that it estimated the total amount of these costs and expenses to be in the sum of $40,000.00. On January 12, 1971, after a hearing, the Trial Court rendered judgment, which was read and signed on January 20, 1971, ordering the plaintiffs to furnish security in the amount of $40,000.00.

Pursuant to LSA-C.C. Art. 3065 , the plaintiff David Haas Ewell, Jr. pledged and pawned a $40,000.00 collateral mortgage note as security to the clerk of court for the Parish of East Baton Rouge. The bond for costs instrument which pledged and pawned the $40,000.00 collateral mortgage note after reciting the names of the plaintiffs in part says:

“have been ordered by the Honorable Elven E. Ponder, Judge of the 19th Judicial District Court in and for the Parish of East Baton Rouge, State of Louisiana, to give security for the costs herein in the sum up to and including Forty Thousand and no/100 Dollars ($40,000.00), as per order rendered the 12th day of January, 1971, and whereas the said Dave Haas Ewell, Jr. on behalf of the above named parties, does by these presents, formally bind himself to be responsible for all costs for which these parties may be cast in these proceedings and for the payment of which the said Dave Haas Ewell, Jr., does hereby bind himself individually and further in order to secure the payment of these costs does hereby pledge and pawn unto the Honorable Perry M. Johnson, Clerk of Court of the 19th Judicial District Court, State of Louisiana,”

and there followed the description of the collateral mortgage note.

Trial was had on the suit and an amended judgment was eventually signed on February 3, 1976 by the Trial Judge in favor of plaintiffs for $30,000.00 and casting defendants for all costs. On February 9, 1976, plaintiffs moved for a devolutive appeal which was granted as follows, to wit:

“Plaintiffs are hereby granted a devolu-tive appeal, returnable to the First Circuit Court of Appeal on the 6th day of April, 1976, and that no additional bond is required as per judgment the 16th day of June, 1971.”

No appeal bond nor any other security was filed in order to perfect the devolutive appeal other than the bond for costs which was filed on January 26, 1971, pledging and pawning the $40,000.00 collateral mortgage note. The first motion to dismiss the appeal was filed on December 6, 1976. It is not an issue, nor is it questioned that the time within which to perfect an appeal has long since expired.

Defendants-appellees in support of their motion to dismiss this appeal contend that the timely filing of an appeal bond is mandatory and jurisdictional; that an order for a devolutive appeal must fix the amount of the bond; that in presenting the Trial Judge an order which did not fix the amount of the bond, appellants caused the Trial Judge to exceed his authority; and that a costs bond cannot serve as an appeal bond.

We are ever mindful of the constitutional guarantee of the rights of judicial review and access to the courts, Art. 1, §§ 19 & 22, La.Const. (1974), and that appeals are highly favored under the law. Regardless, the timely filing of an appeal bond is determinative of whether the appellate court acquires jurisdiction to hear the appeal, and if appellate jurisdiction does not attach, the appellate court is obligated to recognize this deficiency and refuse to hear the case. Though an appellate court may not obtain jurisdiction because of a late or invalid appeal bond, it does have the jurisdiction and authority to determine whether what is offered as a bond is in fact a bond. Guilliot v. City of Kenner, 326 So.2d 359 (La.1976).

Therefore, the first question that must be answered is whether the bond for costs can act and be used as an appeal bond, and in doing so, we must determine the use and purpose for which this bond for costs was filed.

Under the authority of LSA-R.S. 13:4522, defendants, Petro Processors, Inc. and Travelers Insurance Company, asked the Trial Court to cause plaintiffs to secure certain costs that defendants contemplated encountering. Pursuant to that request, the Trial Court ultimately ordered plaintiffs to post security in the amount suggested by defendants, $40,000.00. The specified contemplated costs by defendants have been heretofore listed in this opinion.

In discussing what costs plaintiff can be required to secure under LSA-R.S. 13:4522 the Louisiana Supreme Court in Whitson v. American Ice Co., 164 La. 283, 113 So. 849, 850 (1927) said:

“[T]he defendant in a law suit is not concerned with securing the payment of any of the court costs except those which he may be responsible for without being condemned therefor by the judgment of the court. A defendant may have to employ, and pay or be responsible for the fees of, expert witnesses, auditors, surveyors, or other scientists, whose services or opinions may be needed in defense of the suit; and their fees may be taxed as part of the costs of court, which the plaintiff may finally be condemned to pay. * * * A defendant may also find it necessary to take the depositions of witnesses under commission, and may have to pay in advance or be responsible for the notary’s fees or other expenses which may be taxed as costs of court and which the plaintiff may ultimately be condemned to pay. As to such court costs alone — which the defendant may have to pay or be responsible for in advance of a judgment determining who shall pay the costs — the Act 111 of 1926 is applicable. It is not applicable to the court costs generally, which the defendant in a case is not at all responsible for unless and until he is finally condemned to pay them. Security for the payment of such costs, in the parishes other than the parish of Orleans, is provided for in the fifth section of the Act 203 of 1898, * * * which allows the clerk of court or the sheriff to demand of the plaintiff security for costs at the time of filing the suit, and to demand additional security at any time thereafter, and allows those officers to collect all court costs semiannually, ;}: 4; #

There would seem to be no question that the costs which defendants requested the Trial Court to order plaintiffs to secure were within the intention of LSA-R.S. 13:4522 as interpreted in Whitson v. American Ice Co., supra. Therefore, we must reach the conclusion that the bond for costs intended at the time of its filing only to secure those costs the defendants could be called upon to pay prior to a judgment of the Trial Court. Certainly there was no intention at the time of the bond for costs that it act as security for an appeal. In addition, except for the order of appeal providing in essence that no additional security is required other than the bond for costs, there is nothing in this record to show any express intent on the part of appellants to obligate the bond for costs as security for the appeal.

It has been held that a cash bond posted for a prior appeal in the same case could not in conjunction with cash deposited for Trial Court costs be used in lieu of an appeal bond. Bonvillian v. Lawyers Title Insurance Corporation, 264 So.2d 238 (La. App. 4th Cir. 1972), writ refused, 262 La. 1175, 266 So .2d 450 (1972).

This Court in Great American Insurance Companies v. East, 264 So.2d 761 (La.App. 1st Cir. 1972), held that a bond furnished with the original request for a temporary restraining order cannot be used as an appeal bond.

In addition, we notice that the bond for costs has a self-destruct clause wherein the bond in part provides:

“This pledge and pawn is made in accordance with Article 3065 of the Revised Civil Code of the State of Louisiana, the said Dave Haas Ewell, Jr., declaring that he cannot obtain a surety * * * and therefore he binds himself and pledges this collateral mortgage note as security that he will pay fully and without undue delay all costs of court for which he is cast and upon payment thereof this pledge and pawn shall be discharged and of no avail.”

The judgment casts defendants for all costs, and the defendants have neither appealed nor answered the appeal, though the record has not as of yet been lodged in this Court and the time within which to answer has not expired, LSA-C.C.P. art. 2133, thus the Trial Court judgment as to costs is not final. Therefore the bond for costs has not been discharged, and is still obligated as security for costs.

Plaintiffs-appellants argue in opposition to the motion to dismiss that the defendants must proceed in the Trial Court to test the sufficiency of the bond where the Trial Judges’ order provided that no additional bond was required, or we should instead view the appeal order as if no bond amount had been fixed, yet a bond had been filed. Both arguments presuppose the valid existence of a bond, which we have already ruled does not exist. Secondly, defendants do not as we view this motion to dismiss contest the sufficiency of the bond, but rather they contend that no bond has been filed within the time required.

Finally, we must resolve the question of whether any error which would cause this Court to dismiss this appeal can be imputed to appellant. From a review of the “motion for devolutive appeal” as well as the “order” it is obvious that both were prepared by the appellants, and that the language in question, i.e. “no additional bond is required as per judgment the 16th of June, 1971”, was prepared by appellants and not inserted by the Trial Judge.

Appellants argue in part that the above quoted language should be viewed as if no bond amount had been fixed. We cannot agree. Conceding arguendo that under LSA-C.C.P. Art. 2124 the Trial Judge could have dispensed with a bond and the language used would have been, “no bond required”, then the issue would definitely have been one of sufficiency. However, we are of the opinion that when the order says “no additional bond required” and then refers specifically to the June 16, 1971, judgment overruling the defendants’ objections to the sufficiency of the costs bond, it was intended that the $40,000.00 bond for costs be used also for the appeal bond. We have, however, already ruled that absent any express intention by appellant in the record to so obligate the costs bond, that it cannot be used as an appeal bond. Further, we do not deem sufficient an expression of intention the appeal order even though it was prepared by appellants. Inasmuch as appellants prepared the order, any confusion caused thereby must be imputed to them.

Therefore, for the above and foregoing reasons the motion to dismiss is granted. All costs relating to this motion are to be paid by appellants.

APPEAL DISMISSED.

      . LSA-C.C. Art. 3065 provides:
      The person who can not give a surety is admitted to give a pledge or other satisfaction sufficient to secure the debt, provided that the thing given in pledge may be kept without difficulty or risk.
      He may also deposit in the hands of the public officer, whose duty it is to receive the surety, the sum for which he is required to furnish a surety.

      . Several other defendants had been brought into the suit subsequent to the original petition, and they each filed a motion to dismiss.

      . LSA-R.S. 13:4522 provides:
      The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the court such suit or intervention, as the case may be, shall be dismissed without prejudice. This section shall not apply to the Parish of Orleans and to cases brought in for-ma pauperis, nor to the state or any political subdivision thereof. As amended Acts 1960, No. 32, § 1.

      .Act 111 of 1926 is the source act of R.S. 13:4522.

      . LSA-C.C.P. art. 2133 provides:
      An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record, whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him and of which he complains in his answer.

      . LSA-C.C.P. Art. 2161 provides:
      An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.

      . LSA-C.C.P. Art. 2124 in part provides:
      The security to be furnished for a devolutive appeal shall be fixed by the trial court at an amount sufficient to secure the payment of costs.


author: SARTAIN, Judge.

text:
    James L. FIRMIN, Plaintiff-Appellee, v. Kenneth R. GARBER, Defendant-Appellant.
    No. 10874.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Granted May 26, 1977.

      Kenneth W. Ford, Morgan City, for plaintiff-appellee.
    B. J. Rawls, Morgan City, for defendant-appellant.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

This is an appeal from a judgment of the district court affirming an arbitrator’s award. • We reverse and remand.

On September 16, 1968, Kenneth R. Gar-ber (appellant) entered into a contract with James L. Firmin (appellee) whereby the latter was to prepare plans and specifications for the construction of a residence. The instrument itself is AIA Document B131, entitled “Standard Form of Agreement Between Owner and Architect.” It provided for a fee of ten percent of the construction cost to be paid according to the following percentages:

Schematic Design Phase.15%
Design Development Phase .... 357„
Construction Documents Phase . . 757
Bidding or Negotiation Phase . . 807
Construction Phase .100%

The contract itself does not provide for a cost limitation. It simply states, “It is the intention of the Owner to erect a new residence near Patterson, Louisiana.” The question of cost is an issue. Appellant contends that the construction limit was to be $60,000.00.

The lowest bid received was $110,270.00. Efforts to reduce the cost by modifying the original plans proved unsuccessful. A second set of plans was prepared. Initially, appellant and his wife assisted appellee. However, before these plans were ready for bidding appellant advised the architect that he and his wife had decided to wait a “couple of years” before proceeding with the construction of a new home. Communication between appellant and appellee ceased. Nonetheless, appellee obtained a negotiated bid on these later plans in the amount of $79,240.00. This bid was obtained on October 20, 1970.

Under date of August 30, 1971, the following letter was sent by appellee to appellant:

“Mr. Kenneth R. Garber
P. 0. Box 815
Morgan City, Louisiana 70380
Re: Proposed Residence for Patterson, Louisiana
Dear Ken:
We have obtained from Fangue Bros., Inc., a cost estimate on the second set of plans for your proposed residence in Patterson, (Drawings dated 20 October 1970). At the time that I delivered prints of these drawings to you, 28 October 1970, you advised that you would obtain an estimate within two weeks and would send me a copy. As of today we have not received it so we had the Fangue’s run an estimate to settle the matter.
To review briefly, we opened bids on the initial set of plans, (Dated 15 August 1969), on 13 November, 1969 and received a bid of $103,200.00 for the house and $7,320.00 for drives, septic tank, and field lines. The bid for the house was well above the amount you wished to spend and our efforts in negotiations with the low bidder, Fangue Bros., were unsuccessful in reducing the cost to an acceptable figure. We then agreed to prepare a second set of drawings for the house such that it would have cost $60,000.00 in the construction market of November 1969. You then decided not to build the house until some future date. The second set of drawings were completed and delivered to you on 28, October 1970, as previously stated. The new budget including drives, septic tank, etc., was then $60,-000.00 + $7,320.00 plus the percentage increase in construction costs from November 1969. Construction has risen in our area approximately 18% in the two years hence which increases the budget at this date to $79,437.60. ($67,320.00 X 1.18 = $79,437.60).
The estimate that we .received from Fan-gue Bros., was $79,240.00, which is slightly below the budget maximum. Our part of the agreement has been full-filled, having prepared two sets of drawings and specifications with the final set being within the cost guidelines. We therefore again respectfully submit our invoice in the amount of $3,800.00 for the remainder of the fee due for this work. Your remittance will be appreciated. Very truly yours,
James L. Firmin AIA”

Appellee explained that the attached statement for architectural services rendered in the amount of $3,800.00 represented eighty percent of a ten percent fee for the construction of a residence at a cost of $60,-000.00, less a previous payment of $1,000.00. ($60,000.00 X 10% X 80% - $1,000.00 = $3,800.00).

The contract between the parties provides that any dispute would be “. decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association . ”. Accordingly, this matter was submitted to arbitration under the auspices of American Arbitration Association on January 24, 1975.

In opening statements before the arbitrator appellee submitted that (1) there was no cost limitation; and (2) if there was, appel-lee had complied with his contractual obligations. Stated another way, appellee was entitled to receive his fee based on the first bid of $110,270.00 or, alternatively, based on the second bid of $79,437.00.

Appellant’s position was (1) that there was a cost limitation of $60,000.00; and (2) that appellee’s failure to provide plans for construction of a residence within this limitation precluded his right to recovery. Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367 (1973).

Following a hearing the matter was submitted pending the filing of the transcript and briefs. On March 17, 1975, the arbitrator, without oral or written reasons, filed his “Award” in favor of appellee and against appellant in the amount of $7,821.60 and costs. This award is based on the first bid price of $110,270.00. ($110,270.00 X 10% X 80% - $1,000.00 = $7,821.60).

Appellee then petitioned the district court to have the arbitrator’s award confirmed and to obtain a judgment against appellant in like amount. At the confirmation hearing the record of the arbitration proceedings together with the exhibits there offered were placed in this record. Oral argument was had and the matter submitted.

The trial judge, in his written reasons for judgment, stated that the contract entered into between these parties is “clear, concise and unambiguous and contains no provision for a ‘cost limit’.” He therefore concluded that parol evidence was inadmissible to vary its written terms and affirmed the award. Cited as authority were C.C. Art. 2276 and Moossy v. Huckabay Hospital, Inc., 283 So.2d 699 (La.1973). Implicit in this ruling is the conclusion that parol evidence was inadmissible at the hearing conducted by the arbitrator.

Without discussing the factors which we consider distinguish Moossy, above, from the facts in the instant matter, it suffices here to say that the parol evidence rule is not applicable. We must therefore hold that the decision of the trial judge is in error.

The parol evidence rule, C.C. Art. 2276, was injected in this controversy for the first time when the matter was before the district court. At this juncture, any objection as to the purported use of parol evidence to vary or modify the terms of a written contract must be considered as having been waived. Southern Scrap Mat. Co. v. Commercial Scrap Mat. Corp., 239 La. 958, 120 So.2d 491 (1960); and, In re Industrial Homestead Assn., 198 So. 528 (La.App.Orl. 1940); writs refused, February 3, 1941.

We now turn to the court’s function in matters of arbitration. Louisiana Arbitration Law is found in R.S. 9:4201 through 4217. Pertinent to the issue here is Section 4210. Relevant portions of this section provide:

“In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
A. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them. (Emphasis ours) * * * 11

We are here concerned only with those grounds italicized above.

We note that our research has failed to reveal any prior recorded decision where a Louisiana appellate court has been called upon to consider the vacation of an arbitrator’s award on the grounds of “undue means” or “evident partiality.”

Louisiana has long recognized the right to and advantages of arbitration. C.C. Arts. 3099-3132. Subsequent legislation has perfected this procedure. Acts of 1928 (262) and 1948 (377). In Housing Authority of New Orleans v. Henry Ericsson Co., 197 La. 732, 2 So.2d 195, 199 (1941), the court quoting from American Jurisprudence, Vol. 3, Arbitration and Award, p. 830, § 2, stated:

“ ‘Arbitration is a mode of settling differences through the investigation and determination, by one or more unofficial persons selected as a domestic tribunal for the purpose, of some disputed matter submitted to them by the contending parties for decision and award, in lieu of a proceeding for a judgment in an established tribunal of justice. Its object is speedily to determine disputes and controversies by quasi judicial means, thus avoiding the formalities, the delay, the expense, and the vexation of ordinary litigation.’ ”

In the furtherance of the purpose and intention of arbitration as noted above, the scope of judicial review as to the findings and conclusions of an arbitrator is severely restricted and the courts have consistently respected this limitation. Accordingly, a court does not ordinarily act in an appellate capacity but confines its determination to where there exists one or more of the specific grounds for impeachment as provided for under the applicable statute. 6 C.J.S. Arbitration § 162 (1975). However, the award of an arbitrator is not inviolable. The courts have on occasions refused to confirm an award where to do so would compound a palpable or gross mistake or error. 6 C.J.S. Arbitration § 150 (1975).

One author has stated:
“There is a clear cut doctrine that once an award is made by the arbitrators, the courts will not examine the issue or the evidence that was presented (* * *). To mitigate the severity of this rule, a doctrine has evolved which enables a court to examine the issues and evidence on which the award is based on the policy of preventing manifest injustice but on the legal theory of implied fraud, partiality or misconduct.
“In valuation cases mere inadequacy or exeessiveness of the award is not sufficient ground for setting it aside, but in particular cases it may be so grossly inadequate or excessive as to evidence or to establish or imply or infer partiality, corruption, fraud, or misconduct on the part of the appraisers (* * *). If an appraiser, without knowledge, basis of fact, or information on the subject sets a valuation, or does so on a mistake of law, and in doing so acts arbitrarily and to the harm of a party, this is misconduct on which the award will be set-aside ( * *).
“The manifest injustice of an award gives grounds for vacation if it is so at variance with any legitimate conclusion which could be drawn from the facts and evidence as to imply bad faith, fraud, or a failure to exercise judgment on the part of the arbitrators ( * * *). It has been suggested that this terminology is unfortunate and that a more realistic doctrine would be along the lines of ‘fundamental error’ rather than upon fraud (* * *). As a limitation on this rule the courts will uphold the award if there is any reasonable basis for it in the evidence before the arbitrator.
“A gross mistake of law or of fact constituting evidence of misconduct amounting to fraud or undue partiality is a similar doctrine used to impeach an award, provided there is clear evidence supporting the grounds of impeachment (* * *). Another doctrine is that a palpable mistake or substantial error in an award which would work injustice or a fraud on either party would vitiate the award (* * *).” (Reference to footnotes omitted.) Rothstein: Vacation of Awards, Etc., 10 Vanderbilt Law Review 813, 822, 823. (Emphasis ours)

The language found in Section 4210, above, was first incorporated in Act 282 of 1928 and later adopted verbatim in Act 377 of 1948. Similar language is found in arbitration statutes of numerous sister states. See, Comparative Laws under LSA-R.S. 9:4201.

By way of illustration such is the situation in Maryland. In O-S Corporation, et al. v. Samuel A. Kroll, Inc., 348 A.2d 870, 872 (Md.App.1975), the court cited that state’s applicable law:

“ ‘(b) Grounds. — The court shall vacate an award if:
(1) An award was procured by corruption, fraud, or other undue means; . [or if]
(3) The arbitrators exceeded their powers; . . .

and then stated:

“We hold that when reviewing the fruits of an arbitrator’s award, a judge may withhold only such as were tainted by improbity or based on a completely irrational interpretation of the contract. We recognize the very limited extension of the reviewing court’s scope of review to include authority to vacate an award that is ‘completely irrational.’ Statutory support for this is found not only in the fact that arbitrators ‘exceeded their powers’ when they reach a completely irrational result, but also in the connotation of the words ‘undue means’ in Sec. 3-224(b)(1). An award that is ‘completely irrational’ is inferentially opprobrious, i. e., ‘[expressing or carrying a sense of disgrace or contemptuous scorn’, causing it to be suspect in its conception.” (footnote omitted)

We now return to the issue at hand. Our examination of the record as made up before the arbitrator fails to reveal any evidence whatsoever that can be reasonably construed to support a conclusion that the subject contract embraced a provision which called for the construction of a home in total disregard of the cost involved. The contrary is true. We expect appellant’s testimony to be cost-restricted. But even appellee’s testimony supports a cost restriction. On direct examination:

“Q. In connection with the contract, let me ask you this question right off: Were you ever given a fixed budget or a fixed price structure within which you were expected to work?
A. Throughout the discussions from the early stages of the discussions Mr. Garber indicated that he would — we requested or asked him what price range he was looking at; because looking at the program that was presented that would indicate, you know, a certain price structure, and asked what he intended to spend on the project, and he indicated that he would like for the house to run in the neighborhood of about $60,000.00. That was his general price range that he would like to spend.”

On cross examination:

“Q. Mr. Firmin, I have a note here that at and prior to submission of the first set of plans, is your testimony that a $60,000.00 price range had been discussed with you prior at and prior to the first set of drawings?
A. Right. We discussed a general price range of $60,000.00.”

Mr. Lynn J. Drury, appellee’s associate, testified on direct examination:

“Q. Did you feel you were bound by a $60,000.00 maximum figure?
A. Not in the strict adherence to the penny, no.”

On cross examination:

“Q. Mr. Drury, but at some time in this stage you were aware of a $60,-000.00 parameter, is that correct?
A. Yes. We had discussed that numerous times with the Garbers in their residence.”

The risk of limited quoting is the charge that the same is out of context and does not correctly or accurately reflect the cumulative effect of the whole of one’s testimony. Assuming, however, that the $60,000.00 is a general term, “ballpark figure”, in that appellant was to furnish some of the materials to effect a savings, the record reflects that such savings did not begin to bring the cost figure within a reasonable range of what was undoubtedly the intention of the parties.

We must also find that interpreting the contract between these parties the arbitrator could not have attached any significance to appellee’s letter of August 30, 1971, above. By its very contents it resolved any misunderstanding that might have existed between these parties prior to the commencement of the second set of plans.

We hold that when reviewing the record of an arbitration proceeding a court may withhold confirmation of only such awards as are clearly reflective of a completely irrational interpretation of the contract. The court should recognize the limited scope of its reviewing authority and in declining confirmation its action should have for its sole purpose the prevention of an obvious mistake resulting in gross miscarriage of justice. Authority for this view is found in R.S. 9:4210(A)(B) as the same prescribes “undue means” and “evident partiality” as grounds for vacating an arbitration award.

Applying the above standard to the facts in the instant matter, we find that the award of the arbitrator is so grossly irrational as to be tantamount to “undue means” and “evident partiality” and must be vacated.

Appellant further argues that the arbitrator erred as a matter of law in failing to adhere to the rule announced in Rosenthal v. Gauthier, above. He contends that he should be absolved of any liability for architectural fees based on the failure of the architect to provide plans and specifications for the construction of a residence within a cost limitation of $60,000.00. We note that the contract provides that in the event of a cost overrun (3.5.1) the architect agrees to make such modifications in the plans as are necessary to bring the construction cost within the fixed limit. In this respect, the record discloses that appellant did not respond to appellee’s increase relative to the second set of plans. Further, appellee based his August 30,1971 statement in part on an increase in construction cost during the intervening two years. These are matters that should be considered by the arbitrator and we refrain from expressing any opinion thereon.

For the above reasons, the judgment of the district court is reversed and set aside and the Arbitrator’s Award of March 17, 1975 is hereby vacated and this matter is remanded for further arbitration. All costs of these proceedings are assessed against appellee.

REVERSED AND REMANDED.


author: EDWARDS, Judge.

text:
    Rudolph WALKER and Bertha Landeche, his wife v. The ST. PAUL INSURANCE COMPANIES et al.
    No. 10863.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 11, 1977.

      Kenneth E. Barnette, Baton Rouge, of counsel for defendants-appellants The St. Paul Insurance Co., and others.
    Joel T. Chaisson, Luling, of counsel for plaintiffs-appellees Rudolph Walker and Bertha Landeche, his wife.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

This matter is now before us on remand from the Honorable Supreme Court, State of Louisiana, with instructions to review our assessment of quantum in light of the recent decision rendered by them in Coco v. Winston Industries, Inc. et al., rendered by the Supreme Court on December 13, 1976, La., 341 So.2d 332, rehearing denied 1977.

We here state that it is our understanding of Coco, that Justice Calogero, in speaking for the 4-Judge Majority on page 335 of the opinion, holds that after an intermediate appellate court concludes that the trier of fact (whether judge or jury) abused its “much discretion” in determining the amount of the award, that the reviewing court is not free to re-evaluate the award as if it were deciding the case ab initio, but can reduce the excessive award only down to the highest point wherein the award will not be abusively high.

What we did in this case, although prior to Coco, was precisely that procedure. We allocated to each compartment of damages the highest justifiable award, added them up and arrived at a total, and then checked that total against the jury’s total amount.

We note that this was basically the same approach used by Judges Landry, Covington and Ponder of this court in Tempie v. Liberty Mutual Insurance Co. et al., 336 So.2d 299 (La.App. 1st Cir. 1976) writ refused, 339 So.2d 23 (La.1976).

Janice Walker died almost instantly. She lived at most 15 minutes, and may not have been conscious during that time. The duration of suffering has always been a factor in determining the amount of an award for pain and suffering. It strikes us that if a court awards some high amount for one-quarter hour of suffering, then based on ratio and proportion an argument can be made for unbelievably high amounts if a year or more of suffering is involved. However in order to more fully comply with Coco, the highest non-abusive amount we can justify for Janice’s hypothetical pain and suffering will be $5,000.00 instead of $2,000.00.

Robert Walker died about one hour after the accident. He evidenced slightly more consciousness and lived longer than Janice. Accordingly, we allocated to his pain and suffering more than twice what we allocated to Janice. Since we have raised Janice’s pain and suffering, we also must therefore raise Robert’s, and the highest we can justify here is $10,000.00 compared to our earlier judgment of $5,000.00.

With respect to the wrongful death of Janice Walker, Mr. and Mrs. Walker (plaintiffs) inherited Robert’s cause of action for Janice’s death upon his death. There is no evidence that Robert was ever aware of the loss of his wife. Therefore, as a matter of lav/, we could make no award for it. It is to be noted that one factor involved in making this award much lower than the jury award is that we are unable to make any award for the wrongful death of Janice Walker.

With respect to the wrongful death of Robert Walker, his parents are certainly entitled to recover. Here we have a major child, married, and living away from home, and from whom the parents were not receiving support. There was a strong and loving relationship between Robert and his parents. This was taken into consideration in awarding $40,000.00 to each parent for this loss. Our award of $40,000.00 to each parent, equal to the highest amount previously awarded for minor children living at home, and almost double the amount for major children living away from home, was as high as we thought possible under the circumstances.

In Ogaard v. Wiley, 325 So.2d 642 (La. App. 3rd Cir. 1976), $40,000.00 was awarded to the mother of a 14 year old girl, and $35,000.00 was awarded to the father. The parents were divorced and the father saw the child less than the mother.

In Womax v. Earl Gibbon Transport, Inc., 226 So.2d 573 (La.App. 4th Cir. 1969), $20,-000.00 was awarded to each parent of a 20 year old son.

Bryant v. Travelers Insurance Company, 307 So.2d 749 (La.App. 1st Cir. 1975) represented $12,500.00 to each parent of a 22 year old son, living away from home, and contributing some modest support help to his parents.

When the highest prior awards for major children are in the $20,000.00 range, can we honestly say that $107,512.00 is not an abuse of discretion? In Temple, supra the Supreme Court reaffirmed the constitutional duty of this court to review law and facts. If we have the duty, then some reasonable guidelines must be used to determine an abuse of discretion. Other awards, while not used for achieving uniformity, do serve as aids in determining whether a particular award is so out of line as to be an abuse of discretion. Gaspard v. Le Maire, 245 La. 239, 158 So.2d 149 (1963).

Loss of support and similar economic losses can be calculated with some degree of precision. Loss of love and affection is more nebulous, and less easy to put a handle on. It is troublesome for trial courts as well as reviewing courts. Much can be said for the proposition that no amount of money, $10,000.00 or $10,000,000.00 is adequate for loss of love, companionship and affection. However, dollars are all that is available. Nonetheless, we are unable to conclude that a quarter of a million dollars is a reasonable amount of money to require a defendant to pay to parents for the death of an adult child living away from home and with no financial support being provided by him to them. We think an award of that magnitude, inflation notwithstanding, was an abuse of much discretion. LSA-C.C. Art. 1934(3).

It seems worthwhile to state that an intermediate appellate court does not want to be a “Scrooge” in taking damage awards away from people, but that it does have a legitimate function to serve by taking into consideration the economic realities of excessive judgments.

For the above and foregoing reasons our previous judgment is reaffirmed, except to the extent of increasing the award to each parent for Robert’s pain and suffering from $2,500.00 to $5,000.00; and increasing the award to each parent for Janice’s pain and suffering from $1,000.00 to $2,500.00, at appellant’s cost.

AMENDED AND REAFFIRMED.


author: ELLIS, Judge.

text:
    Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana v. AMERICAN BANK AND TRUST COMPANY.
    No. 11092.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 26, 1977.

      William Steven Mannear, Baton Rouge, of counsel, for Joseph N. Traigle, Collector of Revenue, State of Louisiana.
    Theodore L. Jones, Baton Rouge, of counsel, for American Bank and Trust Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a suit by Joseph N. Traigle, Collector of Revenue for the State of Louisiana, to compel the American Bank & Trust Company to comply with a subpoena duces te-cum issued to it and to collect certain occupational license taxes allegedly due by American. An exception of no cause of action was filed to the merits of the case by the defendant. After a hearing, the trial court sustained the exception and dismissed the suit, and plaintiff has appealed.

The allegations of the petition, which we accept as true, reveal that defendant is a domestic banking corporation and that it operates a travel service or travel department. The Collector alleges that this activity is subject to the occupational license tax.

Under the provisions of R.S. 47:1545, the Collector issued a subpoena duces tecum to American to produce “all business records pertaining to commissions and/or income and/or gross receipts received from the operation of the travel agency or travel department h'owever enumerated, operated or controlled by the American Bank & Trust Company.” It is alleged that American refused to comply with the subpoena.

R.S. 47:8 provides as follows:

“§ 8. Taxation of state banking corporation and shareholders
“Banking corporations organized under the laws of Louisiana and other corporations whose income is derived solely from banking corporations and from securities exempt from taxation by the State of Louisiana and shareholders of such banking corporations shall be subject to the payment of all taxes of the State of Louisiana and any subdivision thereof in the same manner as national banking corporations doing business in Louisiana and their shareholders are taxed by the State of Louisiana and any subdivision thereof under the laws and regulations of the United States of America and the State of Louisiana, and in no other manner.”

The right of the states to tax national banks is limited to four methods by federal law. See 12 U.S.C.A. § 548.

In R.S. 47:1967, the State of Louisiana chose the following method of taxation:

“§ 1967. Listing and assessment of bank stock; procedure
“The shares of stock of all banks, banking companies, firms, associations of corporations, doing a banking business in this state, chartered by the laws of this state or of the United States are hereby declared subject to taxation for all purposes in the state.”

It is the contention of American that its travel agency is a banking service which it renders, and that it cannot be subject to any taxation beyond that provided in R.S. 47:1967, supra.

American also points to R.S. 47:396(D) which, it alleges, specifically exempts banks from the occupational license tax. It provides, in part:

“Printers, lithographers, editors and publishers, whether carrying on their businesses or professions as individuals, firms, partnerships or corporations, and attorneys at law, accountants, baijks, homestead and building and loan associations, oculists, physicians, osteopaths, dentists, chiropodists, bacteriologists, veterinarians, chemists, architects, and civil, mechanical, * chemical and electrical engineers engaged in the practice of their profession and not engaged in sales, shall be exempted from any provisions of this Chapter.”

The Collector argues that both R.S. 47:1967 and R.S. 47:396(D) require that the bank be “doing a banking business” or be “engaged in the practice of (its) profession,” in order to enjoy the exemption from or limitation on taxation provided by the foregoing provisions.

It is argued that the legislature never intended to exempt from the occupational license tax any business activity carried on by banks, but only those which are related to banking activities. The Collector asserts that whether the operation of a travel agency is a “banking activity” is a question of fact which can only be determined after an evidentiary hearing. He further argues that he should be permitted to exercise his subpoena power under R.S. 47:1545 to discover facts which might be pertinent to such an inquiry.

It seems obvious that the law limits the taxation of banks only so long as they are engaged in banking activities. This is clear from the language of R.S. 47:8, when read with R.S. 47:1967 and R.S. 47:396(D). We are also of the opinion that whether a particular activity of a bank is a banking activity is a question of fact to be decided on the merits of a case. We cannot agree with American that any business activity undertaken by a bank is necessarily a banking activity.

R.S. 6:237 sets forth the powers which may be exercised by a banking association such as American. The operation of a travel agency is not among the activities listed. It is not disputed that travel agencies are subject to the occupational license tax. R.S. 47:367, 370, 395.

We are, therefore, of the opinion that the Collector has alleged a cause of action, and is entitled to have a trial on the merits.

Under that circumstance, we are also of the opinion that the Collector is entitled to subpoena the bank’s records relative to the operation of the travel agency. Under R.S. 47:1502, the Collector is given the duty of enforcing the collection of all taxes that “may be due.” R.S. 47:1541 et seq. authorizes him to make investigations, hold hearings, examine records and subpoena witnesses and documents in connection therewith. A court may, by summary process, compel compliance with these subpoenas if one has refused to obey without legal excuse.

The legal excuse offered, by American is that, as a matter of law, the Collector cannot impose an occupational license tax on a banking activity. As we have noted above, it does not appear from this record, that the operation of a travel agency is a banking activity. We are of the opinion that American must comply with thessubpoena.

The judgment appealed from is therefore reversed and set aside, and the case is remanded to the trial court for trial on the merits in accordance. Defendant is granted 15 days from the date this judgment becomes final to file answer. Defendant is ordered to comply with the subpoena duces tecum issued by the Collector of Revenue within 15 days of the date on which this judgment becomes final. Defendant will pay all costs of this appeal, with all other costs to await final determination hereof on the merits.

REVERSED AND REMANDED.


author: ELLIS, Judge:

text:
    Dr. David A. SPRING v. STEVENS READY-MIX CONCRETE, INC.
    No. 11155.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 26, 1977.
    E. Wad$ Shows, Baton Rouge, of counsel, for Dr. David A. Spring.
    Joseph E. Juban, Baton Rouge, of counsel, for Stevens Ready-Mix Concrete, Inc.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit by David A. Spring against Stevens Ready-Mix Concrete, Inc. for damages arising out of the alleged breach of a contract to pour a concrete slab for a patio. Stevens reconvened for the price of concrete delivered to plaintiff. After trial on the merits, judgment was rendered in favor of Stevens, dismissing plaintiff’s demand, and granting judgment against plaintiff on the reconventional demand. From that judgment, plaintiff has appealed.

Plaintiff and his wife wanted a concrete patio in the yard of their home, and obtained a design for it from an architect. Mrs. Spring met Buddy Ryan, a salesman for Stevens, at a friend’s house, and he solicited the concrete business from her. Subsequently, Mr. Ryan went to plaintiff’s home and reviewed the plans. According to Mrs. Spring, he offered to subcontract the job, and have the forms put in and the concrete poured and finished. Mr. Ryan denied that he ever made any such offer, although he admitted that he did give a rough estimate as to the cost of the whole job, and offered to get men to do the form work and the finishing. He stated that these men were to be paid directly by plaintiff.

Plaintiff decided to have the foundation and form work done by someone else. When this work was done, Stevens was notified. Mr. Ryan arranged for a concrete finisher to go to their home, and two loads of concrete of six cubic yards each were delivered and poured. Before the finishing work was done, there was a heavy rain, and much of the wet concrete was washed away.

According to plaintiff, the concrete finisher came back two days later, and another load of four cubic yards of concrete was delivered. Plaintiff and his wife both deny having ordered this concrete. There is no testimony as to who might have done so. Plaintiff and his wife testified that the concrete finisher said that the job was ruined and could not be completed properly. Plaintiff then refused to accept the four yards of concrete.

Mr. Ryan testified that no one said that the job was ruined, and that the finisher was prepared to complete the job, but that plaintiff refused to let him do so.

Subsequently, the job was completed, in a different fashion from that originally planned, at an alleged additional cost of about $1,600.00, for which plaintiff is suing herein. The concrete first poured was utilized in the patio as eventually completed.

Mr. Roland Stevens, Jr., a representative of the defendant, testified that it is in the business of selling concrete, and that none of its salesmen are permitted to enter into contracts for anything other than concrete sales. He testified that the salesmen do suggest the names of concrete finishers, who are employed and paid directly by the customer.

It is plaintiff’s position that Stevens is bound by the representations of its employee, Mr. Ryan, who agreed to supervise the installation of the patio and see that it was done correctly. It is claimed that, in delivering the concrete at a time when there was a definite threat of rain, and in not supervising the job, he breached the contract, and defendant should be liable for the damages arising therefrom. It is also claimed that the concrete finisher was selected by Stevens and sent to the job with no alternative choice of finishers being given to plaintiff. It is claimed that Stevens is therefore responsible for any mistakes or errors of judgment made by him.

The trial judge found that the concrete finisher was in charge of the pouring, and that he decided when and where to pour, and ordered the concrete. He also found that Stevens did not have the right of control and supervision over him, had no duty to pay his wages, and did not have the right to dismiss him. He found that Stevens only contracted to furnish the concrete and supervise the delivery thereof.

Ranzell Gray, the concrete finisher, did not testify. Roland Stevens, Jr., representing the defendant, testified as to the customary way of doing business, but had no independent knowledge of the Spring transaction. Buddy Ryan, who was no longer in the employ of Stevens at the time of the trial, stated that Mrs. Spring called him on Monday, June 9,1975, and told him that the form was ready. Because of the threat of rain that day, Mr. Ryan did not send out the concrete. The next day, June 10th, Mr. Ryan called Mrs. Spring at 6:30 or 7:30 a. m. and told her that he was going to have the cement trucks at her home that day and that he would send the finisher out.

This testimony coincides with that of Mrs. Spring on the point of who ordered the concrete sent out. There is no testimony to the contrary. Therefore, the conclusion of the district judge that Mr. Gray “decided when and where to pour, and ordered the concrete” is manifestly erroneous, since there is no testimony in the record to that effect.

Mrs. Spring testified, without contradiction, that there was a 60% chance of rain in the weather forecast for June 9th, when Mr. Ryan would not deliver the concrete, and a 60% chance on June 10th, when he sent the concrete out. Mr. Stevens testified that, when rain was expected, it was the practice to warn customers of that possibility and then to send the concrete if the customer still wanted it. It is unrebutted that no such warning was given in this case.

As we view the case, the question presented is not one of Mr. Ryan’s apparent authority to bind his principal, but rather who is to bear the responsibility for Mr. Ryan’s error in judgment in sending out the concrete when there was a better than even chance of rain, or his failure to warn Mrs. Spring of the danger of making a pour under those conditions. Considering the fact that Mrs. Spring was totally unfamiliar with handling concrete, and the conditions under which it should be poured, we believe that the responsibility must rest with the defendant, whose representative was aware of the risk involved, and who failed to warn Mrs. Spring thereof.

Dr. Spring testified that it cost him $2,317.22 to have the job properly completed. Since the first 12 yards of concrete delivered by defendant was utilized, a credit should be given for this amount, as well as for the $325.00 which Mr. Gray would have received for finishing the original job, for which plaintiff would have had to pay in any event. Plaintiff has therefore been damaged to the extent of $1,610.84, for which he is entitled to judgment.

The judgment appealed from is therefore reversed and set aside and there will be judgment herein in favor of plaintiff, David A. Spring, and against defendant, Stevens Ready-Mix Concrete, Inc. in the sum of $1,610.84, together with legal interest from date of judicial demand until paid, and all costs of these proceedings.

REVERSED AND RENDERED.


author: CHIASSON, Judge.

text:
    Dorothy Shaffett STUBBS, Individually and as the Administrator of the Estate of her minor children, Melissa Ann Stubbs, et al. v. PARISH OF EAST BATON ROUGE.
    No. 11134.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 11, 1977.

      Robert L. Raborn, Baton Rouge, for plaintiffs Dorothy Shaffett Stubbs, and others, appellees.
    Joseph F. Keogh, Parish Atty., Charles E. Pilcher, Asst. Parish Atty., Baton Rouge, for defendant Parish of East Baton Rouge, appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of the plaintiff-ap-pellee, Dorothy Shaffett Stubbs, individually and as the administratrix of her three minor children, Melissa Ann Stubbs, Crystal Michelle Stubbs and Melody Dawn Stubbs, and against the defendant-appellant, the Parish of East Baton Rouge, awarding death benefits under the workmen’s compensation law. The appellee has answered appellant’s appeal contending that the District Court erred in failing to award penalties and attorney’s fees and in limiting death benefits to $85.00 per week rather than 65% of the deceased’s weekly income without limitation. The appellee also contends that the appellant’s appeal is frivolous and without merit and that the appel-lee should be awarded damages for the frivolous appeal.

On September 30, 1975, while in the employ of the appellant, Timothy W. Stubbs, husband of the appellee and father of her minor children, died of an acute myocardial infarction. Mr. Stubbs, who had a history of severe heart disease, was a heavy equipment operator for the appellant. When Mr. Stubbs reported for work at 6:30 A.M. on the morning of his death, he did not appear sick. He first complained of stomach pains about 8:00 A.M. when he asked his supervisor for some Rolaids. Mr. Stubbs died about 1:30 P.M. while still at work during a trip to use the bathroom. While Mr. Stubbs operated his machine only a few hours on the day he died, he had been on an overtime schedule for several weeks. There is expert testimony by Drs. James R. Calvin and Joseph A. Pellecchia that Mr. Stubbs’ work was such that it would aggravate his basic underlying heart condition and contribute to his death.

Compensation benefits are due un-de? R.S, 23:1031 in cases involving heart conditions resulting in disability or death, whether or not the condition is pre-existing, when the accidental injury is caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment and the accidental injury occurs on the job. Roussel v. Colonial Sugars Company, La., 318 So.2d 37 (1975).

There is evidence in the record which supports a finding that Mr. Stubbs died of a heart attack while in the course and scope of his employment as a heavy equipment operator and that this was an accident and injury within the meaning of the workmen’s compensation law.

The factual conclusions of a Trial Court should be given great weight by a reviewing court and should not be reversed unless manifestly erroneous. There is evidence in the record to support the award of workmen’s compensation benefits by the District Court.

At the time of his death, Mr. Stubbs earned $158.40 per week based on a rate of pay of $3.96 per hour and a forty hour week. R.S. 23:1231 and R.S. 23:1232 provide for an award of 65% of his wages. However, R.S. 23:1202 provides in part:

“The maximum compensation to be paid under this Chapter for injuries occurring on or after September 1, 1975, and on or before August 31, 1976, shall be eighty-five dollars per week and the minimum compensation shall be twenty-five dollars per week . . .”

In Bilbo v. Highlands Insurance Company, La.App., 271 So.2d 541 (1st Cir., 1972), this Court stated:

“We conclude that, since the potential liability of the employer for death benefits depends on the occurrence of a com-pensable accident; and since R.S. 23:1231 grants the death benefit for ‘injury causing death’; and since the wages at the time of the accident form the basis for the amount of compensation, the legislature intended the limits of compensation in effect at the time of the accident, under R.S. 23:1202, to apply to the death benefits.”

Mr. Stubbs’ death resulted from an injury under this chapter for which compensation is to be paid. The maximum compensation provided for by R.S. 23:1202 is $85.00 per week and the appellee’s recovery is limited to this amount.

Under R.S. 23:1201.2 the failure of an employer to pay a claim due under the provisions of, the workmen’s compensation law within 60 days of notice of the claim, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to pay penalties and attorney’s fees. A determination by the Trial Court that an employer’s refusal to pay benefits is arbitrary, capricious, and without probable cause is at least in part a factual determination and should not be disturbed unless manifestly erroneous. Panebiango v. Main Insurance Company, La. App., 293 So.2d 536 (4th Cir., 1974). The Trial Court concluded that the appellant’s refusal to pay was not arbitrary, capricious, and without probable cause. Because of the cause of Mr. Stubbs’ death, a heart attack, and the factors surrounding his death, this Court cannot say that the Trial Court’s refusal to award penalties and attorney’s fees was manifestly erroneous or that appellant’s appeal is frivolous.

The District Court fixed the expert witness fees of Dr. James R. Calvin and Dr. Joseph A. Pellecchia at $100.00 each. The Trial Court has “much discretion” in the setting of expert witness fees. We find no abuse by the Trial Court of its much discretion.

Therefore, for the foregoing reasons, the judgment of the District Court is affirmed. Appellant to pay all costs for which it may be liable.

AFFIRMED.


text:
    POINTE COUPEE ELECTRIC MEMBERSHIP CORPORATION v. TOWN OF NEW ROADS.
    No. 11148.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 11, 1977.

      David W. Robinson, Watson, Blanche, Wilson & Posner, Baton Rouge, for plaintiff-appellant.
    John V. Parker, Sanders, Downing, Kean & Cazedessus, Baton Rouge, Francis Douglas Jewell, Jewell & Jewell, New Roads, for defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of the Town of New Roads, defendant-appellee, and against the Pointe Coupee Electric Membership Corporation, plaintiff-appellant, rejecting appellant’s demand for a preliminary injunction enjoining and prohibiting the Town of New Roads from constructing or extending its electrical services in an area west of the corporate limits of the Town of New Roads, an area served by the appellant; dissolving a temporary restraining order to the above effect and dismissing appellant’s suit.

In April, 1966, the appellant constructed a 13.2KV distribution line along La. 3131 with the intention of providing electrical service for the area. This area is just west of the corporate limits of the Town of New Roads. Construction of the Acadian Village Shopping Center was begun in this area in 1974. Temporary electrical service for the construction of this development was provided by the appellant on August 4, 1974. The appellant completed on November 16, 1974, an underground line intended to provide permanent electrical service to the shopping center. This line was constructed without the permission of the landowner.

On November 22, 1974, in response to a request by the owner of the shopping center, the Town of New Roads completed an overhead line intended to provide the shopping center with permanent electrical service.

The appellant on November 29, 1974, filed a petition for injunctive relief alleging that the construction of the overhead line by the appellee was in violation of R.S. 45:123 and should be prohibited. The ap-pellee on January 9,1975, filed an exception of no cause and no right of action. On January 29, 1975, the appellant applied for and was granted a temporary restraining order prohibiting the appellee from providing electrical service in the area served by the appellant.

The District Court on July 28, 1975, following a trial on the merits, rendered judgment in favor of the appellee and against the appellant dissolving the temporary restraining order, denying appellant’s demand for an injunction and dismissing appellant’s suit. It is this judgment which has been appealed.

The errors assigned by the appellant are: “I. The trial judge erred in holding LSA-R.S. 45:123 inapplicable to the facts of this case.
“II. The trial judge erred in failing to invoke and apply the court’s inherent equity powers against the Town of New Roads to prohibit the Town from extending its electric facilities beyond its corporate limits, interfering with the franchise and property rights of plaintiff, and taking plaintiff’s rights and property without just compensation.”

R.S. 45:123 provides in part:

“No electric public utility shall construct or extend its facilities, or furnish, or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by, or which is not being served but is located within 300 feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility; .
“The provisions of this section shall not apply to municipally-owned or operated utilities of the State of Louisiana or to the parish of Orleans. Nothing in R.S. 45:121, 45:123, 45:1161, 45:1175 or R.S. 12:426 shall alter the rights or authority of municipalities with respect to franchises.”

It is apparent on the face of the statute that the above article does not apply to a utility owned and operated by the Town of New Roads.

The appellant’s contention, that a municipally-owned or operated utility operating outside of the municipality’s boundaries is not considered municipally-owned or operated for the purposes of the above statute, is without merit. Under R.S. 33:4162 a municipal corporation may operate and maintain any revenue producing public utility within or without its boundaries. The appellee may extend its electrical service beyond its boundaries and, when the appel-lee does so extend its service beyond its boundaries, it is not governed by the provisions of R.S. 45:123.

The franchise granted to the appellant by the Pointe Coupee Parish Police Jury was not an exclusive franchise. Franchise Granted to Pointe Coupee Electric Membership Corporation, Section VII. In extending its electrical service into the area west of its corporate limits, the appellee did not deprive the appellant of any right or property.

For the above reasons, the judgment of the District Court is affirmed at appellant’s cost.

AFFIRMED.


text:
    John L. KINCHEN et ux. v. DIXIE AUTO INSURANCE COMPANY.
    No. 11156.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused April 26, 1977.

      Paul H. Due and Michael C. Palmintier, Due, Dodson & DeGravelles, Baton Rouge, for plaintiffs.
    Robert L. Kleinpeter, Baton Rouge, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

On May 17, 1974, the minor son of John L. Kinchen and Lenora Kinchen, plaintiffs-appellees, was struck and killed by an automobile driven by an unknown motorist. Automobile liability policies which included uninsured motorist coverage had been issued to John Kinchen by the Dixie Auto Insurance Company, defendant-appellant.

A legal investigator, retained by the ap-pellees’ attorney, went on June 12, 1974,.. to the Jones-Hinson Insurance Agency (Jones-Hinson), the agency which had arranged for the coverage with appellant, to ascertain the extent of the coverage provided by these policies. Jones-Hinson refused to release the details of the policies without authorization from John Kinchen. The investigator at that time informed Jones-Hinson that a claim would be made under the uninsured motorist provision.

Sometime between June 12, 1974, and June 17, 1974, John Kinchen informed Jones-Hinson that the requested information should be given to his attorney. On August 15, 1974, the appellees’ attorney obtained copies of the policies. Tri-State General Agency, Inc. (Tri-State), agent for the appellant, was notified of the claim on August 19, 1974.

Appellant refused to make payment claiming that it was relieved of its liability by appellees’ failure, as required by the terms of the policy, to provide it with a sworn statement describing the claim within thirty days of the accident. Appellees then brought this suit to recover damages under the uninsured motorist coverage.

After a trial on the merits, the District Court held that there was coverage and awarded the appellees $10,000.00, the coverage provided by two policies, and denied a request by the appellees for penalties and attorney’s fees. The appellant has appealed this judgment contending that the District Court erred in finding coverage and the appellees have answered the appeal contending that the District Court erred in denying penalties and attorney’s fees.

It is clear from the terms of the policies that appellees’ minor son was an insured and that coverage is provided for injuries caused by a “hit-and-run automobile”. At issue is whether the failure of the appellees to provide sworn notice to appellant or its agent, Tri-State, within thirty days of the accident bars the insured from recovering under the terms of the policies.

The pertinent part of the policies provides:

“Hit-and-run automobile” means an automobile which causes bodily injury to an insured arising out of physical contract of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or owner of such “hit-and-run automobile”; (2) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have tiled with the company within 80. days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (3) at the company’s request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident.” (Emphasis Added).

In Miller v. Marcantel, La.App., 221 So.2d 557 (3rd Cir., 1969) the purpose of notice requirements in insurance contracts was stated in these words:

“The function of the notice requirements is simply to prevent the insurer from being prejudiced, not to provide a technical escape-hatch by which to deny coverage in the absence of prejudice nor to evade the fundamental protective purpose of the insurance contract to assure the insured and the general public that liability claims will be paid up to the policy limits for which premiums were collected. Therefore, unless the insurer is actually prejudiced by the insured’s failure to give notice immediately, the insurer cannot defeat its liability under the policy because of the non-prejudicial failure of its insured to give immediate notice of an accident or claim as stipulated by a policy provision.”

Louisiana’s rule is that delayed notice does not forfeit coverage in the absence of prejudice to the insurer. This rule has been applied to both notice of accidents and notice of suit and we now hold that this rule also applies to a claim for uninsured motorist coverage based on a hit-and-run accident.

Even if it is assumed that notice to Jones-Hinson was not notice to the appellant, the appellant has not been prejudiced by the appellees’ failure to give the notice specified in the policy. There was an investigation of the accident by the State Police which failed to determine the identity of the hit-and-run driver or the owner of the automobile. There has been no showing that the failure of appellees to provide a sworn statement describing the claim within thirty days of the accident was in any way prejudicial. Therefore, the appellant is liable under the uninsured motorist provisions of the policies.

Appellees’ claim for penalties and attorney’s fees is based on R.S. 22:658 which requires insurers to pay claims within sixty days after receipt of proof of loss and demand therefor. Penalties may be assessed only when the failure to pay is arbitrary and capricious. Baghramain v. MFA Mutual Insurance Company, La.App., 315 So.2d 849 (3rd Cir., 1975). Under the facts of this case we do not find the appellant’s refusal to pay arbitrary and capricious.

For the above reasons, the judgment appealed from is affirmed. Cost to be paid by the appellant.

AFFIRMED.


author: PONDER, Judge.

text:
    Albah JEANISE et al. v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE, State of Louisiana.
    No. 11137.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 26, 1977.

      Gerald J. Block, Lafayette, for plaintiffs-appellants.
    Howard P. Elliott, Jr., Gen. Counsel, Dept, of Public Safety, Baton Rouge, for defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiffs, Albah Jeanise, James W. Majors, and Roger J. Trahan, seek compensation for overtime worked. The defendant, Department of Public Safety, Division of State Police, State of Louisiana, filed peremptory exceptions of res judicata, collateral estoppel, prescription and judicial estop-pel. The trial judge sustained the last two exceptions and dismissed plaintiffs’ suit.

The issue on appeal is the propriety of the trial court’s action in sustaining the exceptions of prescription and judicial es-toppel.

We affirm.

Plaintiffs, classified employees of the defendant, claimed that between July 27, 1966, and January 1, 1969, they had each worked numerous hours in excess of forty hours per week for which they had not been adequately compensated, contrary to LSA-R.S. 32:733 and Rule 6.25 of the Louisiana Civil Service Commission.

Plaintiffs and three other state police officers had filed a mandamus proceeding in 1974, seeking an order to compel the Director of the Department of Public Safety to pay them the overtime wages that they are seeking in the present suit. The district court ordered the payment, but the Supreme Court in Jeanise v. Waguespack, La., 312 So.2d 865 (1975) held that the suit for wages was barred by one-year prescription. The present suit omits three of the plaintiffs, names the Department of Public Safety the defendant rather than the Director, and makes the action an ordinary one rather than a mandamus.

The Supreme Court stated in Jeanise that:

“It is true that LSA-R.S. 13:5107 provides that when the Legislature authorizes suit against the State, a plea of prescription will not bar the action, if suit is filed within one year after the effective date of the act or resolution. The statute has no application to the present suit for wages, since no authorizing resolution was needed or enacted. The absence of legislative authorization does not prevent the running of prescription.”

The court specifically found that the action had prescribed under Article 3534 of the Civil Code. The ruling is final and binding. If the action was prescribed in 1975, it is still prescribed now. Plaintiffs’ contention that prescription did not begin to accrue until the effective date of LSA-Const. 1974 or until the decision of Darville v. Associated Indemnity Corp., La., 323 So.2d 441 (1975) was answered by the Supreme Court when it said that legislative authorization for the filing of the suit was not required. Jeanise v. Waguespack, supra.

Our sustaining of the exception of prescription makes it unnecessary for us to rule on the exception of judicial estoppel.

The judgment of the trial court is therefore affirmed; appellants are cast with all costs.

AFFIRMED.

      . Article 3534 provides in part: “The following actions are prescribed by one year: That of justices of the peace and notaries, and persons performing their duties, as well as that of constables, for the fees and emoluments which are due to them in their official capacity. * * ”


text:
    TELERENT LEASING CORPORATION v. R & P MOTELS, INC. t/a Admiral Benbow Inn.
    No. 11146.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Charles S. McCowan, Jr., Baton Rouge, of counsel for plaintiff and defendant in intervention, Telerent Leasing Corp., appellant.
    J. A. Delafield, Lake Charles, of counsel for defendant and plaintiff in intervention, William Gordon Hines, appellee.
    Emmett E. Batson, Baton Rouge, of counsel for defendant R and P Motels, Inc., t/a Admiral Benbow Inn, appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a rule to show cause why the execution of a writ of sequestration should not be enjoined. The trial court granted the preliminary injunction as to some of the items sought to be sequestered, and denied it as to others. Telerent Leasing Corporation, who sought the writ of sequestration, has appealed.

Three issues are before this court:

1. Did certain items become immovable by nature because of their incorporation into a building, and therefore not subject to sequestration?
2. Was the trial court correct in refusing to award plaintiff damages and attorney’s fees for wrongful issuance of an injunction?
3. Is Civil Code Article 508 applicable?

We affirm in part, reverse in part, and render.

Plaintiff leased to R & P Motels, Inc., T/A Admiral Benbow Inn, 154 color televisions and pedestals, a Colorguard Theft Alarm System for each hotel room, and a public address and background music system for the hotel. Subsequently, defendant defaulted on its note to Baker Bank & Trust Co., the mortgagee, which provoked a foreclosure and bought the property at a sheriff’s sale. It then sold the property to William Gordon Hines. When several rental payments were not made, plaintiff filed suit against its lessee for the rental and had a writ of sequestration issued directing the sheriff to seize the leased movables.

In his petition of intervention, Hines claims he acquired ownership of the Admiral Benbow Inn and the items in question by means of the recorded warranty deed since the items had become immovable by nature or by destination. He prayed for a temporary restraining order and a preliminary injunction to prevent the sequestration. The temporary restraining order was signed and the rule to show cause why a preliminary injunction should not issue was set.

Prior to the hearing on the rule, Telerent filed peremptory exceptions claiming the principal demand was based on a lease agreement to which intervenor was not a party, and therefore the intervention disclosed no right or cause of action.

The trial court overruled the exceptions, made the rule absolute to the extent that the seizure of the Colorguard Theft Alarm System, the public address system and the background music system was enjoined. The rule was vacated as to the televisions and pedestals. The plaintiff’s claim for damages and attorney’s fees was denied. Since intervenor has not appealed or answered the appeal, that portion of the judgment holding the television sets and pedestals subject to sequestration is final.

Intervenor alleges it accepted title to the Admiral Benbow Inn on the basis of facts reflected in the public records of East Baton Rouge Parish; he further asserts the plaintiff’s lease can have no effect on third parties unless recorded, citing LSA-R.S. 9:2721, LSA-C.C. Art. 2266 and Industrial Outdoor Displays v. Reuter, 162 So.2d 160 (La.App. 4th Cir. 1964), writ refused 246 La. 348, 164 So.2d 352. Intervenor therefore asserts title free and clear of all unrecorded claims.

Since the above principles apply only to immovables, the threshold question is whether the leased items have become immovable by nature or destination. If so, then the items passed to intervenor by virtue of the warranty sale; if they remained movables, the property still belonged to Tel-erent and was subject to sequestration. See Bailey v. Kruithoff, 280 So.2d 262 (La. App. 2nd Cir. 1973).

Intervenor has agreed that these items could not have become immovable under Articles 467 or 468 of the Civil Code since unity of ownership is required under these articles, which admittedly, does not exist. These leased items can become immovable only by application of Civil Code Article 464. See Edwards v. S & R Gas Co., 73 So.2d 590 (La.App. 2nd Cir. 1954).

Intervenor contends that the Colorguard Theft Alarm System, the public address system and the background music system are “other constructions” under Article 464 and therefore have become immovable by nature.

The courts often mention three criteria in determining whether an object is “other construction” under Article 464. They are 1) size of the structure; 2) a certain degree of integration or attachment to the soil; and 3) some degree of permanency, the third of these being the most important.

Mr. Ralph Woodcock, a Telerent employee, who was accepted by the court as an expert in installation and removal of equipment leased by Telerent, testified that the leased property was installed in such a manner that it could be easily removed without defacement. He had removed items similar to those in dispute previously from other motels. The degree of permanency is therefore slight, and in our opinion, not sufficient to require the court to hold it “other construction.”

Our jurisprudence has also recognized that component parts of other constructions may become immovable by nature. Industrial Outdoor Displays v. Reuter, supra. Plaintiff contends that the Colorguard Theft Alarm System, the background music system and the public address system are “other constructions” and the individual items its component parts. This argument falls by virtue of our finding that these systems were not “other constructions” within the meaning of Article 464. We believe these systems were made up of speakers, grills, transformers, microphones and other items that retained their integrity whether they were part of the system or not.

The parties have not argued the question of whether the wiring and cable inside the walls and ceiling should be subject to sequestration. The only references indicated it could be easily removed without causing any damage. We therefore believe it is movable and subject to sequestration.

Telerent claims they should be awarded damages and attorney’s fees under LSA-C.C.P. Article 3608 for wrongful issuance of the temporary restraining order which prohibited the sequestration of the televisions and the pedestals. By use of the word “may,” this article indicated that judicial discretion may be exercised in awarding damages for wrongful issuance of an injunction. This interpretation was approved in Amacker v. Amacker, 146 So.2d 672 (La. App. 1st Cir. 1962). There the court said: “use of the word ‘may’ in each of the aforesaid instances clearly indicates that the award of such damages are left entirely to the discretion of the court in each individual case.”

In its brief, intervenor claims ownership of the systems involved by virtue of LSA-C.C. Article 508. This issue was not raised in the lower court, and no evidence was heard concerning it. Therefore, we do not elect to consider it on appeal.

For the above and foregoing reasons, the judgment of the district court is reversed insofar as it issued a preliminary injunction enjoining the sequestration of the Color-guard Theft Alarm System and the background music and public address system. The injunction is dissolved and the rule vacated as to this property. In all other respects the judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Art. 467. “Wire screens, water pipes, gas pipes, sewerage pipes, heating pipes, radiators, electric wires, electric and gas lighting fixtures, bathtubs, lavatories, closets, sinks, gasplants, meters and electric light plants, heating plants and furnaces, when actually connected with or attached to the building by the owner for the use or convenience of the building are immovable by their nature.”

      . Art. 468. “Things which the owner of a tract of land has placed upon it for its service and improvement are immovable by destination.
      “Thus the following things are immovable by destination when they have been placed by the owner for the service and improvement of a tract of land, to wit:
      “Cattle intended for cultivation.
      “Implements of husbandry.
      “Seeds, plants, fodder, and manure.
      “Pigeons in a pigeon house.

        “Beehives.
      “Mills, kettles, alembics, vats, and other machinery made use of in carrying on the plantation works.
      “The utensils necessary for working cotton, and sawmills, taffia distilleries, sugar refineries and other manufactures.
      “All such movables as the owner has attached permanently to the tenement or to the building, are likewise immovable by destination.”

      . Art. 464. “Lands and buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature.”

      . Art. 3608. “The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or a preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.”

      . Art. 508. “When plantations, constructions and works have been made by a third person, and with such person’s own materials, the owner of the soil has a right to keep them or to compel this person to take away or demolish the same.
      “If the owner requires the demolition of such works, they shall be demolished at the expense of the person who erected them, without any compensation; such person may even be sentenced to pay damages, if the case require it, for the prejudice which the owner of the soil may have sustained.
      “If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby.
      “Nevertheless, if the plantations, edifices or works have been made by a third person evicted, but not sentenced to make restitution of the fruits, because such person possessed bona fide, the owner shall not have a right to demand the demolition of the works, plantations or edifices, but he shall have his choice either to reimburse the value of the materials and the price of the workmanship, or to reimburse a sum equal to the enhanced value of the soil.”


text:
    Lacy Eugene DAVIS v. TEACHERS’ RETIREMENT SYSTEM of Louisiana, through Louis D. Rogers, Chairman of its Board of Trustees.
    No. 11150.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 18, 1977.
    John W. Swanner, Baton Rouge, for plaintiff-appellee.
    William J. Guste, Jr., Atty. Gen., William T. Reeves, Jr., Asst. Atty. Gen., Baton Rouge, for defendant Teachers’ Retirement System of Louisiana, appellant.

      W. Shelby McKenzie, Baton Rouge, for defendant Board of Supervisors of Louisiana State University, etc.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a mandamus action by plaintiff against the Teachers’ Retirement System of Louisiana and the Board of Supervisors of Louisiana State University. The trial judge ordered that plaintiff be allowed to repay to the Teachers’ Retirement System the funds he withdrew in 1964, plus five per cent interest; and that these funds plus employer contributions and five per cent interest thereon be transferred to the Louisiana State University Retirement System. The Teachers’ Retirement System has appealed.

The issue before this court is: Are the employee and employer contributions to be transferred by the Teachers’ Retirement System with or without five per cent interest compounded annually.

We affirm.

Plaintiff was a contributing member of the Teachers’ Retirement System of the State of Louisiana from 1947 to 1964. In 1962 plaintiff began work for Louisiana State University, but continued to make contributions to the Teachers’ Retirement System.

In 1964, after plaintiff joined the Louisiana State University Retirement System, he withdrew the funds he had contributed to the Teachers’ Retirement System. Plaintiff now wishes to repay the funds he withdrew plus appropriate interest, and then have these funds transferred to his present retirement system.

LSA-R.S. 42:697.2 provides:

“A member of any state, parochial or municipal retirement system having two years’ credit in said system shall have the right to repay a refund from any other state, parochial or municipal retirement system. Each board of trustees shall have the right to negotiate the manner in which repayment shall be made, the amount of interest, if any, to be paid, and the method by which the refunded service shall be reestablished and transferred.”

The provision for the transfer of funds is found in LSA-R.S. 42:697:

“The following provisions shall apply to transfers between state, municipal or parochial retirement systems:
* * * * * *
“C. The system from which the member transfers shall transfer to the system to which he transfers all employee contributions, employer contributions, or other funds, which the employee or employer has contributed or which actuarially figuring stands to or for the credit of the transferring member.”

The Teachers’ Retirement System is willing to transfer to the Louisiana State University Retirement System all employee and employer contributions, excluding, however, the five per cent compound interest. The Board of Supervisors of LSU passed a resolution authorizing the Louisiana State University Retirement System to accept transfers from the Teachers’ Retirement System provided all employer and employee contributions, together with five per cent compound interest, are paid tó the LSU Retirement System.

The plaintiff contends that it is the mandatory obligation of the Teachers’ Retirement System to transfer these contributions plus the appropriate interest to the LSU Retirement System. ■

The legislative intent behind this statute was to accomplish as full and complete a transfer from one retirement system to another as possible. The language “which actuarially figured stands to or for the credit of the transferring member” indicates to us that interest must also be transferred.

We believe it would be inequitable to require the transfer of employee and employer contributions without interest. LSA-R.S. 42:697(D) provides:

“D. After the date on which the transfer is completed the system from which the member transfers shall have no liability whatsoever with respect to the transferring member, and the system to which he transfers shall assume all liability with respect to him.”

Since the LSU Retirement System will assume full responsibility for retirement benefits of the plaintiff, and the Teachers’ Retirement System will have no responsibility, it is only fair that all possible funds be transferred. There is no compelling reason why defendant should retain the interest on these contributions when they will have no responsibility for paying retirement benefits to plaintiff.

The judgment of the trial court is therefore ^ affirmed. Defendant, Teachers’ Retirement System of Louisiana, is cast with all costs.

AFFIRMED.