text:
    ORKIN EXTERMINATING COMPANY, INC., Plaintiff-Appellant, v. Hodges J. BROUSSARD, d/b/a Broussard’s Pest Control, Defendant-Appellee.
    No. 5974.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by James R. Lewis, Lafayette, for plaintiff-appellant.
    Louis G. Garrot, III, Abbeville, for defendant-appellee.
    Before WATSON, FORET and HEARD, JJ.
   FORET, Judge.

Plaintiff, Orkin Exterminating Company, Inc. (hereinafter referred to as “Orkin”) brought this action against defendant, Hodges J. Broussard d/b/a Broussard’s Pest Control (hereinafter referred to as “Brous-sard”) to enjoin the defendant from soliciting or selling any pest control, exterminating, fumigating or termite control services to customers of Orkin who were serviced by-defendant while working as an employee for Orkin, and to cease servicing those customers he has allegedly already diverted from Orkin to his account. Basically, it is plaintiff-appellant’s position that Brous-sard, defendant-appellee, entered into an agreement with Orkin whereby he agreed that if he left Orkin’s employ, he would not contact or call upon the customers he serviced while employed by Orkin for a period of two (2) years in the area defined in the agreement between the parties. Appellant alleges that appellee has breached the said agreement by contacting and calling upon persons who were his customers while employed by Orkin, for the purpose of soliciting their accounts for his own pest control business. Accordingly Orkin has prayed for an injunction to enjoin appellee from soliciting or selling any pest control, etc. to customers of Orkin who were serviced by the appellee while working as an employee for Orkin, and to cease servicing those customers he has already allegedly diverted from Orkin to his own account.

Defendant-appellee admits that he is presently in the pest control business, but denied that the agreement which he executed is a valid and binding agreement upon him, and in the alternative, if said agreement is binding and valid, that he did not breach the terms thereof by contacting or calling upon customers whose accounts were serviced by him pursuant to his employment with Orkin for the purpose of soliciting or selling pest control service, and nor did he divert or take away from plaintiff any customers by soliciting their accounts.

The trial court rendered its original reasons for judgment on July 29, 1976, finding that the defendant had been employed as a serviceman by Orkin from October, 1961, to December, 1974, and that he started servicing his own customers as Broussard's Pest Control on January 5,1975. The trial court concluded that the agreement signed between Broussard and Orkin provided that he would not solicit customers whom he serviced while employed at Orkin if he terminated his employment, but the trial court apparently concluded that Broussard had not solicited his prior customers, and therefore did not grant the injunctive relief sought by plaintiff.

At the hearing of the petition for writ of preliminary injunction the trial court awarded judgment in the amount of $200 to Broussard for expenses and attorney’s fees against Orkin Exterminating Company, Inc. for its denial of requests for admissions of fact which facts Broussard allegedly proved at the hearing.

Upon rendition of the judgment of denial of the petition for a writ of preliminary injunction, appellant and appellee, through counsel, entered into a stipulation by which the parties agreed that the evidence presented on the trial of plaintiff’s application for preliminary injunction would be the same evidence presented at a hearing for a permanent injunction and that there was no necessity to file an application for a permanent injunction or to have a hearing therefor; and said stipulation further provided that the application for the preliminary injunction and hearing thereon be considered the application and the hearing for permanent injunction, and that the judgment rendered thereon be considered a final judgment on an application for permanent injunction.

The three issues to be decided herein are: (1) the enforceability of the non-competition restrictions .contained therein, (2) whether Broussard has violated the restrictive covenant such as would warrant the issuance of an injunction, and (3) the award of attorney fees by the trial court.

ENFORCEABILITY OF THE RESTRICTIVE COVENANT

Although defendant had been employed by Orkin since October 9,1961, the contract sued upon was entered into between Orkin and defendant on May 28, 1971, which provided in pertinent part as follows:

“The employee hereby expressly covenants and agrees, which covenant and agreements are of the essence of this contract, that he will not, during the term of this agreement, and for a period of two years immediately following the termination of this agreement, for any reason whatsoever, directly or indirectly, for himself or on behalf of, or in conjunction with any other person, persons, company, partnership or corporation:
(a) Call upon any customer or customers of the company solicited or contacted by the employee or whose account was serviced by the employee, pursuant to his employment hereunder, for the purposes of soliciting or selling any pest control, [etc.] . . . .”
La.R.S. 23:921 provides that:
“No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract of employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court, provided that in those cases where the employer incurs an expense in the training of the employee or incurs an expense in the advertisement of the business that the employer is engaged in, then in that event it shall be permissible for the employer and employee to enter into a voluntary contract and agreement whereby the employee is permitted to agree and bind himself that at the termination of his or her employment that said employee will not enter into the same business that employer is engaged over the same route or in the same territory for a period of two years. As amended Acts 1962, No. 104, §§ 1, 2.”

Obviously the Louisiana statutory law narrowly restricts the enforceability of a non-competitive restrictive agreement such as Orkin seeks to enforce in the present suit. Orkin admits that it did not have any “investments” in training of Broussard or incurred any expense in the advertisement of the business such as to bring it within that particular exception of the statute which provides that in cases where the employer incurs an expense in the training of an employee or incurs an expense in the advertisement of the business that the employee is engaged in, then, and in that event, it shall be permissible for the employer and employee to enter into a voluntary contract and agreement whereby the employee would be prohibited from competing with the employer. Therefore, the statutory exception is not available to Orkin to validate an otherwise void and unenforceable agreement.

In the instant case however, Orkin argues that the relief which it seeks herein is not such as to prevent Broussard from engaging in the exterminating business, either for himself or for another. Rather, Orkin is seeking an injunction for the narrow purpose of preventing Broussard from soliciting or servicing those customers of Orkin who Broussard himself was servicing prior to the termination of his employment with Orkin.

This Court, in Orkin Exterminating Company v. Foti, 287 So.2d 569 (La.App. 3 Cir. 1973), affirmed 302 So.2d 593 (La.1974) held that restrictive covenants are unenforceable unless they fit under the exception stated in the statute. In Foti, the trial court had granted an injunction similar to the one sought herein by Orkin, and on appeal Foti did not appeal that portion of the trial court judgment which had granted the injunction enjoining Foti from servicing or soliciting Orkin customers whom he was servicing at the time of the termination of employment. Therefore, this limited issue was not before this Court or the Louisiana Supreme Court, and accordingly was not considered.

Orkin seeks to do herein that which was not involved in Foti at the appellate level. Counsel for Orkin argues that the relief sought herein is not to enjoin Broussard from engaging in the exterminating business, but only seeks to enjoin Broussard from servicing those customers of Orkin whom he was servicing prior to termination of his employment with Orkin. We can see no distinction in legal principle. In Foti we held that the amendment to Section 921 (generally prohibiting enforcement of contracts not to compete) to permit such contracts where an employer incurred expense in training of employee or in advertisement of business that employer was engaged in, was intended to protect the employer only where he had invested substantial sums in special training of the employee or in advertising employee’s connection with the business. See also National Motor Club of La., Inc. v. Conque, 173 So.2d 238 (La.App. 3 Cir. 1965), certiorari denied 247 La. 875, 175 So.2d 110. Where there is no showing of such expenditures, the restrictive agreement is null and unenforceable. Inasmuch as Orkin has failed to show such expenditures in the instant case, its agreement with Broussard is null and unenforceable.

In the Conque case, the Third Circuit considered practically identical relief sought by National Motor Club. The Third Circuit reversed the trial court insofar as it had enjoined the defendant Conque from engaging in competition with the business of National Motor Club, or from contacting the present or former customers of National Motor Club. Therefore, the relief sought herein by Orkin was denied in Conque, and the Supreme Court denied writs of certiora-ri. Accordingly, Orkin’s requested injunc-tive relief should be denied.

Having made the above disposition of the dispute herein, we need not consider whether or not Broussard violated the terms of the agreement by soliciting Orkin’s customers.

The only other issue for us to decide is whether the trial court erred in awarding expenses and attorney fees because Orkin would not admit, on the request for admissions, the amounts spent for special training for Broussard, and nor would Orkin admit that they had not made expenditures for special training, which refusal by Orkin resulted in Broussard having to prove same at trial. The trial court awarded to Broussard the amount of $200.00 for such expenses and attorney fees.

We are of the opinion that the trial court committed no manifest error in the award of expenses and reasonable attorney fees. Certainly Orkin should have been able to answer “yes” or “no” whether it had “spent monies sending Mr. Broussard to an intensive training school where he was taught how to perform his job.” While it is true that reasonable minds could have differed as to what constituted the incurring of expenses such as to bring the matter under the exception in La.R.S. 23:921, the Foti and Conque cases, supra, laid down the guidelines, or at least held what “expenses” were not sufficient to bring the exception into play. By a simple perusal of these cases Orkin should have easily been able to answer that it had not spent monies sending Broussard to an intensive training school where he was taught how to perform his job.

For the foregoing reasons, the judgment of the trial court is affirmed, and all costs of these proceedings are assessed against plaintiff-appellant, Orkin Exterminating Company, Inc.

AFFIRMED.

      . In manner and amounts sufficient to satisfy the requirements of Conque and Foti.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    James COMEAUX, Plaintiff and Appellant, v. DELCAMBRE SEAFOOD MARKET et al., Defendants and Appellees.
    No. 5975.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      White & Pitre by Marion Overton White, Opelousas, for plaintiff-appellant.
    Allen, Gooch & Bourgeois, Ltd. by Paul J. Breaux, Lafayette, for defendants-ap-pellees.
    Before HOOD, CULPEPPER and STOKER, JJ.
   STOKER, Judge.

This is an appeal by a workmens compensation claimant, James Comeaux. Plaintiff-appellant suffered a back injury in the course of his employment with Deleambre Seafood Market on June 10, 1973. This action was not filed until November 17, 1975. The question to be decided is whether under R.S. 23:1209, plaintiff’s claim is barred by prescription, and if not, has it been lost by peremption. The defendant employer and its workmens compensation insurer, Allstate Insurance Company, filed exceptions of prescription and peremption. The trial court sustained the exception of prescription and gave written reasons for judgment.

The trial evidence appears to consist of certain exhibits, the deposition of the claimant, James Comeaux, and of Donald Ray May, a claims supervisor for Allstate Insurance Company,' together with an exhibit attached to May’s deposition. The exhibit is a compensation check payable to plaintiff-appellant (endorsed by him) dated October 4, 1974 issued on behalf of defendants-appellees covering the period from September 30, 1974 to October 14, 1974. The evidence establishes without contradiction that this was the last compensation payment made on behalf of defendants to plaintiff. On the basis of this evidence the plaintiff’s claim had prescribed when suit was filed more than one year after October 14, 1974.

In plaintiff-appellant’s brief, it is stated that the issues are as follows:

I. . . . WHETHER THE PAYMENT BY APPELLEE TO APPELLANT FOR ONE (1) DAY (sic) WORK FOR WHICH APPELLANT DID NOT WORK HAD THE EFFECT OF INTERRUPTING THE RUNNING OF ONE (1) YEAR PRESCRIPTION.
II. WHETHER THE AGGRAVATION OF APPELLANT’S PHYSICAL CONDITION BY ATTEMPTING TO WORK FOR APPELLEE, DEL-CAMBRE SEAFOOD MARKET, AS PER ADVISE (sic) OF APPELLANT’S PHYSICIAN AND AP-PELLEES PHYSICIAN HAD THE EFFECT OF INTERRUPTING PRESCRIPTION AND/OR CREATING A NEW CAUSE OF ACTION AGAINST APPELLEES.

The one day of work referred to above has reference to testimony of James Co-meaux in his deposition that he was requested by physicians representing the defendant to attempt to perform his former duties or light duty as an aid to recovery. James Comeaux further testified that he complied with the request and attempted to work but was unable to do so and reinjured his back in the process. Comeaux alleges that he was paid for this “attempt” at working; therefore, he was paid a gratuity. On the basis of the aggravation and gratuity plaintiff-appellant urges that prescription was interrupted.

Plaintiff’s testimony as to his one day of attempted work is not-corroborated by any other evidence. Neither is it contradicted. Even if James Comeaux’s testimony is accepted at face value, it unfortunately avails him nothing. He failed to establish when the alleged work was performed. All that he could say was that it “would have been in ’74.” Therefore, whether the facts testified to would operate as an interruption of prescription can not be considered as the critical date is not established. This suit was filed on November 17, 1975. Therefore, unless the date of such alleged payment was made subsequent to November 16, 1974, it could not be considered at all.

The exceptions of prescription and peremption were fixed for trial on September 24, 1976. The plaintiff did not appear. Plaintiff’s attorney attempted to introduce an affidavit of the plaintiff dated June 22, 1976. No continuance was requested on plaintiff’s behalf and his counsel contented himself with urging the court to admit the affidavit. The court heard objections from defendants and took the question under advisement (Tr. 108-109), later ruling it was inadmissible (Tr. 93). However, in his written reasons for judgment dated September 27, 1976' the Trial Judge states that in “an effort to do justice to the claim of plaintiff” he has read the affidavit. According to the Trial Judge the affidavit''“simply says he (plaintiff) received $3.00 for transportation to and from Dr. Meuleman’s office and that he would present evidence to show that his claim has not prescribed.” Inasmuch as this affidavit was executed on June 22,1976 and the exceptions ■ were not heard until September 24, 1976, the affidavit was not relevant even if admissible. We agree with the Trial Judge that the information in the affidavit is not sufficient to prove an interruption of prescription.

October 15, 1976 counsel for plaintiff-appellant filed a motion for a new trial. As the principal ground for the new trial sought, the motion contains the following allegation:

On the date of the trial of the exception in this matter, plaintiff was ill and his wife had just experienced a severe heart attack, consequently, he was unable to be present. Furthermore, on the date of said trial, counsel for plaintiff inadvertently offered, filed and introduced in evidence an affidavit dated June 22, 1976, when in fact and in truth he had intended to offer, file and introduce in evidence an affidavit of James Comeaux dated September 14, 1976, which is verified by the argument set forth in the pre-trial memorandum.

The affidavit in question sets forth among other allegations that James Co-meaux “is fully aware” that his trial on the exceptions was fixed for September 24, 1976 at 10:00 A.M. (i. e. ten days later). Then the affidavit sets forth that, if his condition or that of his wife prevented him from being present at the trial, “he would have the Court to know that had he been present he would testify to the fact that the prescription and/or peremption was interrupted as follows:” Among the facts the affiant swore he would testify to was that date he claims he went back and attempted to work for one day at his employer’s business was November 21, 1974. This means that ten days before trial counsel knew his client would give this testimony, obtained the affidavit, expected to have it accepted as evidence, but neither before trial or af-terwards was a continuance asked for. No attempt was made to obtain plaintiff-appellant’s deposition in advance of trial. (The deposition of James Comeaux which was introduced in evidence was a discovery deposition taken by defendants on April 12, 1976 and introduced over defendants’ objections Tr. 106-108).

On October 19, 1976 the trial court denied the motion for new trial holding: “The plaintiff has furnished a new affidavit dated September 14, 1976 which I have read, and he has still not presented credible evidence that would prevent the running prescription.” The trial court committed no error in refusing to grant a new trial. Even if the affidavit had been presented at the original trial, it would have been inadmissible despite the liberal rules of evidence which apply in workmens compensation matters.

Plaintiff-appellant relies on two other grounds for interruption of prescription. One is that he was lulled into believing that defendants were going to settle the claim with him. The other is that medical payments were made within one year of the time suit was filed. Plaintiff-Appellants has shown no change in the law, and we find none, which holds that payment of medical expenses does not interrupt the running of prescription of the right to workmens compensation payments. Owens v. Liberty Mutual Insurance Company, 296 So.2d 449 (La.App.1974) reversed on other grounds, 307 So.2d 313 (La.). As to the claims that plaintiff-appellant was lulled into inaction because he believed that defendants were going to settle his claim, there is nothing in the record whatsoever to support such a claim.

The trial court’s written reasons for judgment treated the exception of prescription only and indicated it should be sustained. However, the formal judgment appears to have sustained both exceptions. We hold that both exceptions were properly sustained. Therefore, the dismissal of the plaintiff-appellant’s suit is affirmed and costs of this appeal are assessed to him.

AFFIRMED.


author: HEARD, Judge. WATSON, Judge,

text:
    Ada Bell Russell LACAZE, Plaintiff-Appellant, v. TENNESSEE LIFE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 5976.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      G. F. Thomas, Jr., of Thomas & Dunahoe, Natchitoches, for plaintiff-appellant.
    Gahagan & Gahagan by R. E. Gahagan, Natchitoches, George M. Wear, Jr., Monroe, for defendant-appellee.
    Before WATSON, FORET and HEARD, JJ.
   HEARD, Judge.

This suit was instituted by Ada Bell La-caze to obtain one-half of all benefits received by her former husband, R. L. Lacaze under a group insurance disability policy provided by his employer, Tenneco, Inc. Made defendants are Tenneco, Inc., Tennessee Life Insurance Company and its successor, Philadelphia Life Insurance Company, and R. L. Lacaze.

Plaintiff appeals from a judgment rejecting her demand.

The facts are undisputed and are succinctly set forth by the trial judge in his reasons for judgment:

“R. L. Lacaze was married to Ada Bell Russell in September, 1951. On August 1*3, 1975 Ada Bell Lacaze filed suit for a separation from bed and board, which was granted by judgment dated November 17, 1975.
During the existence of the marriage between R. L. Lacaze and Ada Bell Russell Lacaze, R. L. was employed by Ten-neco, Inc. In January 1965, R. L. became eligible to obtain, under a group policy, rights to disability benefits for specified losses, resulting from accidental bodily injury, sickness or disease. The original group policy, GP-785, was issued by Tennessee Life Insurance Company and later taken over by its legal successor, Philadelphia Life Insurance Company. From January 1965, through January 1969 R. L. Lacaze paid a portion of the premiums. Thereafter all premiums were paid by his employer.
On October 13, 1975, R. L. Lacaze applied for benefits under the disability provisions of the group policy. He alleged his sickness began August 1, 1975. On February 28, 1976, R. L. Lacaze began drawing benefits under such disability provisions.
The instant suit by Ada Bell Russell Lacaze alleges that R. L. Lacaze obtained rights under the group policy during the marriage, and therefore when he qualified for benefits thereunder, such belong to the community of acquets and gains that formerly existed between them. Accordingly, she is entitled to one-half (V2) of all disability benefits payable under said insurance policy to R. L. Lacaze.”

Plaintiff-appellant assigns as error that the trial court committed error of law in failing to recognize the benefits payable by Philadelphia Life Insurance Company to R. L. Lacaze as a result of a disability which commenced during the marriage, under a policy of disability insurance purchased with community funds and furnished as an employment benefit during the existence of the community, was enjoyable by both spouses and the right of the wife to participate in the fruit of the policy was not destroyed by judicial separation or divorce.

As found by the trial judge, the policy is a form of health and accident insurance as provided for in LSA-R.S. 22:211, et seq., and has no cash surrender value. It was furnished R. L. Lacaze as an incident of his employment with Tenneco, Inc. Since January 1969 the premiums were paid by Ten-neco, Inc. LSA-R.S. 22:213(A-7) — Payment of Claims, states:

“. . . All other indemnities will be paid to the insured. . .

Counsel for plaintiff-appellant in brief states that the closest case in point is T. L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1975).

We find that case inapposite to the present case for the reason that during the existence of the community R. L. Lacaze had no vested interest in the policy. His disability payments were made only after the community was dissolved.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of the appeal are to be paid by plaintiff-appellant.

AFFIRMED.

WATSON, J., concurs and assigns written reasons.

FORET, J., concurs in result.

WATSON, Judge,

concurring:

Because the result is correct but the terms of the policy are not the controlling factor, I assign these additional reasons.

Defendant, Ronil Louis Lacaze, aged 62, is suffering from acute depression which renders him unable to perform the duties of his former job with Tenneco, Inc. This results from a progressive mental and emotional deterioration for a period of five years. Lacaze is not disabled as the result of an accident, but because of long-term “nervousness” (TR. 7), which required termination of his employment on August 31, 1975. Lacaze was covered under his employer’s group policy which provides benefits for disabling sickness until the age of 65.

The premiums on the policy were paid by Lacaze through salary deductions from January 1,1965, until January of 1969. Subsequently, Tenneco paid the premiums, without wage deductions, and these payments constitute additional compensation to the employee. T. L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1976). Plaintiffs theory is that she is entitled to one-half of the benefits due to payment of premiums by wage deductions or as additional compensation during the existence of the community of acquets and gains. However, the decisive factor is not the time when the premiums were paid but the date rights vested under the policy.

Although Lacaze did not receive any proceeds until February 28, 1976, because of a 180-day waiting period, his rights under the policy vested on August 31, 1975, when he was unable to continue working. The August 31 date is critical because of the prior dissolution of the community. The community was dissolved August 13, 1975, the day Mrs. Lacaze filed suit for the separation granted November 17, 1975. Talbert v. Talbert, 199 La. 882, 7 So.2d 173 (1942).

We are not dealing here with damages for an offense or quasi offense under LSA-C.C. art. 2334 but insurance benefits. The benefits under the policy are in one sense the “produce” of Lacaze’s labor, as that term is used in LSA-C.C. art. 2402, being paid because of his past employment. Compare Swope v. Mitchell, 324 So.2d 461 (La. App. 3 Cir. 1975). However, these payments are made to Lacaze only because of his current inability to work and do not represent any compensation for disability during the period of his marriage. West v. Ortego, 325 So.2d 242 (La.1975); McLeod v. McLeod, 325 So.2d 883 (La.App. 1 Cir. 1976). The right to the benefits did not vest until after dissolution of the community and constitutes the separate property of Lacaze. The policy involved here is analogous to a term life insurance policy with no cash surrender value at the end of the marriage. Connell v. Connell, 331 So.2d 4 (La.1976); T. L. James & Co., Inc. v. Montgomery, supra; and Butler v. Butler, 228 So.2d 339 (La.App. 1 Cir. 1969). The policy had no value prior to the time Lacaze was eligible for its benefits and therefore no accounting is due for the premiums paid during the existence of the community.

I respectfully concur.


author: ROGERS, Judge.

text:
    BOWLES & EDENS COMPANY, Plaintiff-Appellee, v. H & H SEWER SYSTEMS, INC., et al., Defendants-Appellants.
    No. 5978.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Gist, Methvin & Trimble by Dorwan G. Vizzier, Alexandria, Dale, Owen, Richardson & Taylor by Daniel R. Atkinson, Baton Rouge, for defendants-appellants.
    Love, Rigby & Dehan by Kenneth Rigby, Shreveport, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

This suit was originally filed by plaintiff Bowles & Edens Company (Bowles) against H & H Sewer Systems, Inc. (H & H Sewer) and its surety, American Employers Insurance Company (American), for non-payment under a contract to supply materials for a construction project. The case is before this court on an appeal taken by American from an adverse trial court judgment holding it liable as surety in solido with its principal, H & H Sewer, for the sum of $10,428.65 plus interest.

On February 7, 1975, Bowles filed a petition in Nineteenth Judicial District Court in East Baton Rouge Parish seeking a sum of $12,986.56 with interest and costs representing an amount allegedly owned by defendant general contractor, H & H Sewer, arising out of construction of a water distribution system for Quail Creek Subdivision in Rapides Parish, Louisiana. Bowles’ petition also made American a defendant alleging it to be solidarily liable with H & H Sewer as surety for the contractor.

Attached to the petition were a construction contract between H & H Sewer and the property owners for the sum of $51,-772.75, and a surety bond for the sum of $52,000.00 which listed the owners and First Federal Savings and Loan Association of Alexandria, Louisiana, as “obligees”, which contract and bond were recorded July 17, 1974, as Instrument Number 629658 in Mortgage Book 736 at page 619, Records of Rapides Parish, Louisiana. Other attachments were copies of invoices and an itemized statement totaling $12,986.56, representing materials allegedly provided by Bowles to H & H Sewer, and a certificate of final acceptance by the owners which had been recorded October 8, 1974 as Instrument Number 632666 in Mortgage Book 741 at page 205, Records of Rapides Parish, Louisiana.

On March 25, 1975, American filed a motion for summary judgment and an exception of no cause or right of action, which motion and exception were heard on April 14, 1975, along with a rule to show cause why the case should not be transferred to the Ninth Judicial District Court of Rapides Parish, or to the Seventh Judicial District Court of Catahoula Parish, this latter motion made by the trial judge. Judgment was signed on May 8, 1975, maintaining American’s exception of no right or cause of action, sustaining its motion for summary judgment and, accordingly, dismissing Bowles’ suit as to that defendant, and further, decreeing a change of venue and transference of the suit to the Ninth Judicial District Court in Rapides Parish.

Plaintiff Bowles appealed from that portion of the judgment granting summary judgment in favor of American and maintaining American’s exception of no right and no cause of action. The First Circuit Court of Appeal, in its decision reported at 324 So.2d 528 (La.App. 1 Cir. 1976), reversed the trial court, granting judgment for plaintiff, and remanded the case for further proceedings in accordance with its opinion. Upon remand to the Nineteenth Judicial District Court for East Baton Rouge Parish, the case was transferred to the Ninth Judicial District Court for Rapides Parish pursuant to the trial judge’s original order.

The case was then tried on the merits, and a judgment was signed November 22, 1976, in favor of Bowles and against H & H Sewer and American in solido for the sum of $10,428.65, plus interest, and additionally in favor of Bowles and against H & H Sewer individually for the sum of $2,557.91, plus interest.

From the portion of the above judgment relative to American, American has perfected a suspensive appeal to this court, and has urged that the following two errors were committed by the trial court. First, American contends that the trial court erred in finding that, under the “law of the case” doctrine, it was bound by the prior decision of the First Circuit Court of Appeal. Secondly, American contends that the bond sued on was a conventional bond and not a statutory bond as found by the trial court.

When American filed its motion for summary judgment and exception of no cause or right of action, it based both actions on the argument that the bond in question was a conventional bond, thereby allowing the parties to the contract the opportunity to include whatever provisions or conditions they desired.

The bond contract at issue contains the following pertinent provisions:

“Now, therefore, if Principal (the contractor) shall, subject to the performance of Owner’s obligations to Principal, perform Principal’s obligations under said contract and keep the property free and clear of any and all mechanic’s and mate-rialmen’s liens for labor or materials furnished in connection therewith, then this obligation shall be void; otherwise it shall remain in full force and effect, subject, however, to the following conditions.
* * * He * *
(6) No right of action shall accrue on this bond to or for the use or benefit of any person or corporation other than the Owner and Lender herein named, and no suit, action, or proceeding shall be had or maintained against surety on this bond unless the same be brought or instituted within one (1) year after the date of the completion of the work by Principal or after the date of any default by Principal in the performance of the contract.”

Relying on the wording of provision six set out above, American in paragraph two of its Motion for Summary Judgment filed in Nineteenth Judicial District Court, stated the following allegation:

“2. With reference to this particular work, American Employers Insurance Company issued a performance bond which clearly sets forth that no right of action shall accrue on the bond for any person except the owner and lender named within the bond.”

Attached to the Motion was a copy of the bond, and the same was attached to American’s Exception of No Cause or Right of Action, wherein, after quoting provision six of the bond, American urged in paragraph three of the exception that:

“3. Accordingly, since the pleadings of the plaintiff indicate that he is a supplier of materials with reference to this particular contract, then this plaintiff has no cause or right of action herein.”

After the hearing held on the Motion and Exception before Nineteenth Judicial District Court, the trial judge, being in accord with the contentions of American, granted its motion for summary judgment and sustained its exception of no right or cause of action. Bowles thereupon timely filed for and was granted a suspensive and a devolu-tive appeal to the appropriate appellate court for the Nineteenth Judicial District Court, that being the First Circuit Court of Appeal of Louisiana, which court was squarely faced with the issue of whether the bond in question was statutory or conventional in nature.

Bowles argued then, as it does now, that since the construction contract was reduced to writing, a surety bond was provided in connection therewith, and the contract and the bond were recorded pursuant to LSA-R.S. 9:4801 et seq. (the Private Works Act), the bond was a statutory bond; and further, relying on the principles given in the Louisiana Supreme Court cases of Minden Presbyterian Church v. Lambert et al., 167 La. 712, 120 So. 61 (1929), and Electrical Supply Co. v. Eugene Freeman, Inc. et al., 178 La. 741, 152 So. 510 (1934), that whenever a statutory bond is given, whatever is in the bond that is not required by law should be read out of it, and whatever is not expressed in the bond and should have been included in it, should be read into it.

Our distinguished brethren on the First Circuit, being in agreement with the contentions of Bowles, reversed the trial court, finding that the bond in question was statutory in nature, and therefore, provision six of the bond, being in conflict with certain sections of the Private Works Act (which allow a materialman to bring an action against a surety) should be read out of the bond, and the action allowed. The suit was then remanded to the Nineteenth Judicial District Court for further proceedings not inconsistent with the decision of the First Circuit. Upon remand, the case was transferred to the Ninth Judicial District Court for trial on its merits.

At the trial on remand, the district judge for the Ninth Judicial District Court, in regard to the question of whether the bond was conventional or statutory, decided that the First Circuit’s decision was the “law of the case” as to that issue, and he therefore allowed Bowles, as a materialman, to bring its action against American as surety. The judge found that the sum of $10,428.65 was owed to Bowles for materials supplied for use on the Quail Creek Subdivision project, and that since this project was covered by the surety bond at issue, American was liable in solido with H & H Sewer for this amount.

American, desiring to appeal from this adverse judgment, perfected a suspen-sive appeal to this Third Circuit Court of Appeal, State of Louisiana, the proper court for civil appeals taken from the Ninth Judicial District Court, Rapides Parish. American is arguing before this court the same argument it has presented throughout this litigation, i. e. the bond in question is conventional in nature, therefore, provision six of the bond is applicable and prevents an action against the surety by a materialman. American faces a new obstacle, however, that being the question of whether the “law of the case” doctrine' is applicable to this appeal. If so, then this-Court is bound by the decision of our brethren on the First Circuit relative to that issue. On this appeal, American has not questioned the trial judge’s finding that $10,428.65 was owed to Bowles for materials supplied, and thus we will not entertain that question.

In regard to the key issue before us, Justice Tate, in Day v. Campbell-Grosjean Roofing and Sheet Metal Corporation, 260 La. 325, 256 So.2d 105, where the same question was litigated, stated the following:

“With regard to an appellate court, the ‘law of the case’ refers to a policy by which the court will not, on a subsequent appeal, reconsider prior rulings in the same case. This policy applies only against those who were parties to the case when the former appellate decision was rendered and who thus had their day in court. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both parties, of affording a single opportunity for the argument and decision of the matter at issue.
Nevertheless, the law-of-the-case principle is applied merely as a discretionary guide: Argument is barred where there is merely doubt as to the correctness of the former ruling, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice. . (footnotes omitted)”

See also: Petition of Sewerage and Water Board of New Orleans, 278 So.2d 81 (La.S.Ct.1973); Louisiana State Bar Assn. v. Theard, 225 La. 98, 72 So.2d 310 (1954); City of Gretna v. Aetna Life Ins. Co., 207 La. 1085, 22 So.2d 658 (1945).

In the instant suit, we find that the requisites necessary for application .of this principle are substantially met. The only major distinguishing characteristic of this suit is that the prior appellate ruling relative to the surety bond issue was rendered by a different appellate court than this one, albeit a court of equal judicial rank. We are guided, however, in our disposition of this matter by a previous decision by this Court, wherein Justice (then Judge) Tate, writing for the Third Circuit, was faced with a somewhat although not totally similar factual situation.

In Keller v. Thompson, 134 So.2d 395 (La.App. 3 Cir. 1961), this Court was faced with an appeal from a judgment on the merits when the suit had previously been up on an appeal from an interlocutory decree. The first appeal, however, was brought when the district court appealed from was located within the jurisdiction of the Court of Appeal for the Second Circuit. In the interim between the two appeals, this court, the Third Circuit Court of Appeal, was established and activated, and it encompassed the district court wherefrom the appeals were brought. On the latter appeal, the question was presented as to whether the successor court could consider issues decided by the former appellate decision. The issue was disposed of as follows:

“. . This court thus occupies the identical status as the Second Circuit as the appellate court of first instance with regard to this same suit between the same parties, in which upon this second appeal the identical issue is again raised as was decided in the first appeal. When the same issue is re-urged upon the second appeal as was decided on the first appeal, the law of the case doctrine is nevertheless applicable even though, in the interval, the personnel of the appellate court has changed. (Holthoff v. State Bank & Trust Co., 208 Ark. 307, 186 S.W.2d 162, 1945; State v. Woodruff, 170 Miss. 744, 150 So. 760, 1933), or a different panel hears the second appeal (Shunk v. Shunk Mfg. Co., 86 Ohio App. 467, 93 N.E.2d 321, 1949), or appellate jurisdiction of the litigation is transferred to a successor tribunal of equivalent appellate function (State Bank of Waterloo, Ill v. City National Bank, 26 Okl. 801, 910, 110 P. 910, 1910; St. Croix Lumber Co. v. Mitchell, 4 S.D. 487, 57 N.W. 236, 1894). See 5B C.J.S. Appeal & Error § 1828, p. 203.”

In the instant suit, we find that the parties in the prior suit were the same as now, the issues presented the same, and the court rendering the opinion was of equal judicial status as this court. We therefore hold that the “law of the case” principle applies, and thus limits this court’s consideration of the issue to determining whether there was a palpable error in the prior ruling, or that the prior ruling results in manifest injustice.

After careful review of the First Circuit’s opinion in this suit, we find that neither of these exceptions to the rule are present.

Furthermore, we find insufficient merit to American’s argument that there was material change in the evidence presented relative to this issue at the district court on remand.

Therefore, for the above given reasons, the judgment of the lower court is affirmed, with all costs of the appeal to be borne by appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    STATE FARM FIRE AND CASUALTY COMPANY et al., Plaintiffs-Appellants, v. GIBSON PRODUCTS OF SULPHUR et al., Defendants-Appellees.
    No. 5981.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Stockwell, Sievert, Viccellio & Clements by John S. Bradford, Lake Charles, for plaintiff-appellant.
    Brame, Bergstedt & Brame by Joe A. Brame, Lake Charles, for defendants-appel-lees.
    Camp, Carmouche, Palmer, Carwile & Barsh by Joe A. Delafield, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Robert and Hazel Atkinson, and their insurer, State Farm Fire and Casualty Company, sued defendants Gibson Products of Sulphur (hereinafter Gibson’s) and its insurer, Employers Commercial Union Insurance Company, and Unelco Electronics Corporation (hereinafter Unelco) to recover damages sustained, by them because of the loss of their home to fire. The defendants, Gibson’s and Unelco, were the vendor and manufacturer respectively of an allegedly defective stereo radio and phonograph purchased by the Atkinsons as a Christmas gift for their teen-aged daughter, Jackie Atkinson (now Jackie Atkinson Ardoin), which stereo allegedly caused the fire in their home early Christmas morning in 1973.

The case was presented to a jury, which found no liability on the part of defendants. Plaintiffs have appealed. We find the substantial issue to be whether there is manifest error in the factual findings of the jury. The appellant also specifies as error certain jury instructions which are alleged to be improper. We affirm.

The home of Robert and Hazel Atkinson caught fire early Christmas morning in 1973 and was totally destroyed. The Atkin-sons sustained damages in the amount of $29,891.80, of which State Farm paid them $26,500.00 in accordance with its policy of insurance and the balance of the loss, $3,391.80 has been borne by the Atkinsons.

Present in the home at the time of the fire were Terry Atkinson, son of the individual plaintiffs, Terry Johnson and Bea Johnson, the former being the nephew of Mrs. Atkinson. Mr. and Mrs. Atkinson were at a funeral home making arrangements to have Mrs. Atkinson’s brother buried as he had died Christmas Eve. Jackie Atkinson, the daughter of the individual plaintiffs and the recipient of the stereo as a Christmas gift, was spending the night with Sarah Crawford, a girl friend who lived across the street from the Atkinsons.

The testimony in the case established that on approximately December 5,. 1973, Mrs. Atkinson purchased from Gibson Discount Store in Sulphur a stereo-phonograph system which was manufactured by Unelco Electronics. The particular item purchased was the display model. The radio part of the system was tested before the equipment left the store. The record player component was not tested in the store. The original box was misplaced so the stereo-phonograph was put in a casual box with no special packing material.

The stereo-phonograph was to be Jackie’s Christmas present; therefore Mrs. Atkinson took the stereo-phonograph and wrapped it and stored the item in a closet until Christmas. The Atkinsons were planning a trip for Christmas, therefore, decided to open their gifts before they left on December 23rd.

Jackie unwrapped her present in front of the family and played the unit. Immediately upon use a problem developed with one of the speakers where one of its wires plugged into the unit, but this was apparently remedied by the use of scotch tape and admittedly had nothing to do with the fire. Mrs. Atkinson told Jackie to put the unit up and she would return it to Gibson’s. With the excitement of Christmas and the new gift, Jackie took the unit to her room and set it up on a table next to the outside wall.

Following the death of Mrs. Atkinson’s brother on Christmas Eve, other members of the family came to Lake Charles for the funeral. The Johnsons arrived at approximately 11:00 P.M. on the night of the 24th and subsequently had conversations with Terry Atkinson and Jackie Atkinson and Sarah Crawford, a friend with whom Jackie was spending the night. The Johnsons, tired from travel, went to bed. Terry Atkinson, Jackie Atkinson, and her friend went to Jackie’s room and played the stereo-phonograph system. After a short time, Jackie turned off the record player, but there was some doubt as to whether the entire system was shut off. Jackie left and went to her friend’s house across the street. Terry Atkinson proceeded to go to sleep after listening to his battery operated tape recorder which was in no way connected with the Unelco unit involved herein. His testimony is that there was no smoking in the bedroom, but this is subject to doubt. Terry went to sleep in the room for a short period of time which he estimates to be approximately two hours and was awakened by smoke in the room.

Under cross-examination Terry Atkinson admitted that the entire room near the stereo was on fire. This is to say that the carpet, wall, table and bedding were aflame. It was the further testimony of Terry Atkinson that he observed sparks and flames coming from the rear of the stereo unit. However, this testimony is later contradicted by his own testimony when he admitted that such sparks could have been coming from the electrical wall outlet, below the stereo unit, or even the wood paneling in the room. Terry Atkinson finally admitted that he had no knowledge of the origin of the sparks.

Terry Johnson went to investigate the cause of the smoke in the house. Terry Atkinson proceeded to go across the street to call the fire department and by the time the fire department arrived the fire was out of control and the house, including the stereo-phonograph system, was completely destroyed.

Plaintiffs-appellants assign as error the special instructions given to the jury by the trial judge, and the failure of the judge to give additional charges to the jury. The district court judge instructed the jury as follows:

“The following are issues in this case for your determination:
(1) Was the fire in the Atkinson residence proximately caused by a defect in design, composition or manufacture by Unelco of the radio-stereo unit which was unreasonably dangerous to normal use of the article; and if so, should Unelco have reasonably anticipated such a fire?
(2) Did Gibson Products Company of Sulphur know or should it have known of the existence of such defect?
(3) Was Gibson Products Company of Sulphur otherwise guilty of negligence that was a proximate cause of the fire?”

The Louisiana Supreme Court in the landmark case of Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 stated:

“A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.”

The jury instructions given by the trial court in this instance were patterned after the language in the Weber case.

Plaintiffs complain that the inclusion of the foreseeability element (as laid out in Weber) in these jury charges contradicts the law applicable in products liability cases. We disagree. Plaintiffs do not allege in their petition a defect in the manufacture of the stereo; rather, plaintiffs allege a defect in the design of the stereo, namely the absence of fuses which might prevent problems with the circuit breaker. The standard of care for a defendant who allegedly produces a defectively designed product approaches the negligence standard. See Robertson, Manufacturer’s Liability for Defective Products in Louisiana, 50 Tul.L.Rev. 50 at 65-66 (1975) and cases cited therein.

Be that as it may, even if all of the plaintiffs’ desired instructions had been given, we find that the jury had a reasonable basis for its decision. Plaintiffs did not prove a defect in the stereo. The key witness was Terry Atkinson, and his testimony concerning his smoking in the bedroom is subject to doubt. It was within the jury’s province to determine his credibility. Also, it was shown that in all probability Jackie Atkinson Ardoin shut off the stereo before leaving the house. The expert testimony on the chances of the stereo causing a fire when turned off was to the effect that such an occurrence would happen “once in a million times”. Finally, the fire could have been started by a defect in the electrical wiring in the house, which was installed by Robert Atkinson, who was by his own admission not an expert electrician.

Considering the evidence as a whole, we find no manifest error in the jury’s finding that plaintiffs did not sustain their burden of proof.

Accordingly, we affirm the decision of the trial court, costs to be cast against the plaintiffs-appellants.

AFFIRMED.

      . Defendants Gibson’s and its insurer third partied Unelco, demanding indemnity in the event Gibson’s was found liable in the primary action.

      . These charges were made at plaintiff’s request. However, not all the requested charges were given.

      . In American Guaranty and Liability Insurance Company v. Little, 328 So.2d 706 (La.App. 3rd Cir. 1976), a similar factual situation was presented but the additional evidence as to causation distinguishes that case from the instant case.


text:
    Edward M. GREER, Plaintiff-Appellant, v. Joe C. ROHRER, Defendant-Appellee.
    No. 5982.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Sydney I. Horn, Lake Charles, for plaintiff-appellant.
    Planchard, Thompson & James by A. J. Planchard, Sulphur, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

Plaintiff-appellant, Edward M. Greer, filed this suit in quanti minoris against Joe C. Rohrer, defendant-appellee, who constructed a septic system for plaintiff’s $130,000.00 home.

The system consisted of a 900 gallon septic tank and a total of 400 feet of field line. Plaintiff-appellant seeks a reduction in price in the amount of $788.00, as he alleges that only the 900 gallon septic tank was not defective.

Two months following the installation of the septic tank system and upon completion of the residence plaintiff moved into his new home. Immediately plaintiff began experiencing problems with his indoor plumbing facilities, i. e., the commodes and bathtubs would not drain and the sewerage would back up into plaintiff’s home. There is no question but that these problems occurred as a direct result of the malfunctioning of the septic tank system. Plaintiff contacted defendant in regard to this problem, whereupon defendant informed him that the trouble was due to the heavy rains and the problem would correct itself when the rains stopped. Plaintiff waited several weeks and during dry weather again contacted defendant, insisting that he was still experiencing the same problems with the system. Defendant at this time indicated that the problem could be alleviated by installing a second 100 foot field line that ran to the front of the house. The purpose of this second line would be to drain off the overflow of rain water thereby allowing the first field line to drain the sewerage. Defendant indicated that the second field line would only drain the excess rain water. Plaintiff agreed to the installation of the second line which ran to a ditch in the front of his home. The cost of this installation was $225.00. Plaintiff stated that this second line did solve the problem of the sewerage backing up but that after several weeks he noticed a pungent odor coming from the ditch in the front of his home. Plaintiff testified that this second field line, which drained into an open ditch contrary to State and Local regulations, was discharging raw sewerage rather than clear water. Plaintiff testified that this second field line continued to drain even though the initial 400 feet of field line was dry. Plaintiff again called defendant who offered no solution to plaintiff’s problem, other than to fill in the low spots in his yard with dirt. Further complaints to defendant about the odor from the second field line proved to be of no avail, defendant’s response simply being that there was nothing further he could do to alleviate the problem. Thereafter, plaintiff had a new sewerage system installed, using the 900 gallon septic tank originally installed by defendant.

The trial court, although recognizing that the plaintiff’s septic tank system was inoperative and defective, rejected plaintiff’s demand finding: (1) Plaintiff failed to prove the cause of the functioning difficulty in the system; (2) defendant was ready, willing and able to correct any problem in the system; (3) plaintiff in changing sewerage systems after only five (5) weeks, left the defendant in a totally defenseless position; and, (4) defendant should have been given the opportunity to repair the septic tank system.

In considering the first holding of the trial court, it is rather obvious that the plaintiff who proved the functioning difficulty in the septic tank system does not have to further establish the exact cause of the malfunction. Regarding the second and fourth holding of the trial court, the evidence is clear defendant was given ample opportunity to correct the system but was unable to do so. In response to questioning by the court the defendant stated at Transcript page 128:

“THE COURT: Do you think you could have done anything else to have made the system work better?”
“THE WITNESS: No, sir. That line we put in was my last alternative, without changing to another type system, which would have been expensive, very expensive.”

Defendant also testified that he told plaintiff that he had done everything that he knew of to fix the system. Again, on page 144 of the Transcript, the defendant responded to the court questions:

“THE COURT: Do I understand — Let me interrupt you here, please.
After you put the extra line on, as I understand your testimony, as far as you’re concerned, he had a good system?
THE WITNESS: Yes, sir.
THE COURT: Except for the odor.
THE WITNESS: It was a workable system. It could have worked, if he had left that on.
THE COURT: Except for the odor.
THE WITNESS: Right . .

Although the State Department of Health had initially inspected the installation of the plaintiff’s septic tank and issued a permit, the Department would not have given a permit for the second field line. The second field line would have had to have been removed from the public drainage. We conclude that the defendant was given ample opportunity to correct the problems in the septic tank system and by his own admission, was unable to do so.

In considering the trial court’s third holding, it is clear that the defendant was not left in a totally defenseless position. The trial court in so finding relies on the fact that after only five weeks, plaintiff had his septic system changed. As herein-above stated, the evidence shows that defendant, who was called upon on numerous occasions to correct the system, was unable to do so. We think the plaintiff had no alternative but to have a new system installed. Further, the evidence shows that the defendant did not honestly believe the problem had been corrected by the additional 100 foot line, but to the contrary, knew that this 100 foot line had created a new and equally offensive problem. Finally, we note that the evidence reveals that the field lines and septic tank installed by defendant remained on plaintiff’s property although disconnected from the new septic system.

A review of the plaintiff’s petition indicates that its allegations lack the essential elements necessary for a cause of action in quanti minoris, in particular there was no sale and delivery as contemplated in LSA-R.C.C. Articles 2534, 2544 and 2546. [See Kegler’s, Inc. v. Levy, 239 So.2d 450 (La.App. 4th Cir. 1970), writs refused, 256 La. 1150, 241 So.2d 253; and, Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (La.1961)]. Rather, clearly the situation is that of a contract to furnish and install a septic tank disposal system, i. e., a building contract under R.C.C. Article 2756.

We are no longer hamstrung by the old “theory of the case” doctrine (LSA-C.C.P. Articles 854-862 and 2164), and since the petition alleges facts sufficient to state a cause of action for breach of contract under R.C.C. Article 2769, we may consider it as such.

Based upon the evidence in the record, it is clear that the septic tank system installed by defendant was defective and totally useless as a result of improper installation. We therefore conclude that the defendant failed to execute the contract in a workman like manner and as agreed to, and he should accordingly respond in damages to the plaintiff, R.C.C. Article- 2769. We calculate the damages as the amount plaintiff paid to defendant ($1,038.00) less the value of the septic tank which plaintiff retained ($250.00), or the net sum of $788.00.

For the above and foregoing reasons the judgment of the trial court is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Edward M. Greer, and against the defendant, Joe C. Rohrer, for the sum of $788.00 together with legal interests on such sum from date of judicial demand until paid. It is further ordered that defendant be cast for all costs on the trial level and appeal.

REVERSED AND RENDERED.

      . C. C. Article 2541. Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.


author: GUIDRY, Judge.

text:
    O. L. WRIGHT, Plaintiff-Appellee, v. French WRIGHT, Administrator for the J. L. Wright Succession, and Individually, Barbara Jean Wright Blood, Linda Wright Tedford and Gloria Wright Gordon, Defendants-Appellants.
    No. 5983.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Gaharen, Richey & Wilson, by Joseph Wilson, Jena, for defendants-appellants.
    Reeves & Owens, by Jack F. Owens, Jr., Harrisonburg, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

Plaintiff, O. L. Wright, alleging his ownership of an undivided two-thirds (Yards) interest in two tracts of land situated in Catahoula Parish, Louisiana, instituted this suit seeking a partition in kind and in the alternative a partition by licitation of said properties. The alleged owners of the remaining one-third (Yard) interest, Succession of J. L. Wright, represented by French Wright, Administrator, Barbara Jean Wright Blood, Linda Wright Tedford and Gloria Wright Gordon, sole heirs of J. L. Wright, were named as parties defendant.

The tracts of land sought to be partitioned contain respectively, 78 acres and 6 acres and are situated in Section 40 Township 9 North, Range 6 East, Catahoula Parish, Louisiana.

Following institution of this suit the defendants filed exceptions of no cause of action; no right of action; prematurity; improper cumulation of actions; and, failure to join indispensable parties. The first four named exceptions are directed to plaintiff’s demand for a partition of the 78 acre tract. The last exception, i.e., failure to join indispensable parties, is directed to the demand for a partition of the 6 acre tract. The exceptions were referred to the merits following which defendants filed answer generally denying plaintiff’s ownership of any interest in the tracts of land and his consequent right to demand a partition thereof.

The record reflects the following with regard to the record title to the 78 acre tract:

(a) In the year 1926 the 78 acre tract, together with a 194 acre tract of land situated in Section 21, T. 9 N., R. 6 E., was owned by L. P. Wright husband of Catherine Anderson. (See stipulation tr. Pg- 41)
(b) By authentic act of credit sale dated June 29, 1926, recorded July 1, 1926 in Book 35, folio 107, conveyance records of Catahoula Parish, Louisiana, L. P. Wright, husband of Catherine Anderson, conveyed the properties mentioned in item (a) above to G. G. Wright and J. L. Wright, both single men of age. (This sale (Exhibit P-1; D-l) is hereafter referred to as the 1926 sale).
(c) By authentic act dated April 6, 1935, recorded April 16, 1935 in Book 48, folio 27, conveyance records of Catahoula Parish Louisiana, G. G. Wright and J. L. Wright, entered into a conventional partition of the lands acquired in the 1926 sale, less those previously sold, in which partition J. L. Wright was allotted and acquired the 78 acre tract. (Exhibit P-13; D-2).
(d) J. L. Wright, who was married but once and then to Ella Mae Dozier in the year 1935, died intestate on June 19,1972, survived at his death by three and only three children born of his marriage, none being adopted, namely, Barbara Jean Wright Blood, Linda Wright Tedford and Gloria Wright Gordon.

Plaintiff does not question that record title to the 78 acre tract now vests solely in the three heirs of L. P. Wright, under the chain of title delineated above. He contends however, that as a result of a verbal agreement or understanding entered into in the year 1926, title to all land then owned by L. P. Wright and Catherine Anderson was placed in the names of their eldest sons, G. G. Wright and J. L. Wright, for purposes of convenience only and so that such land could later be disbursed to the twelve children of L. P. Wright and Catherine Anderson. He contends further that although the partition deed of 1935 purported to convey the 78 acre tract solely to J. L. Wright, in truth and in fact as a result of a verbal agreement, the latter acquired such title for himself, his brother John W. Wright, and plaintiff, in equal proportions. Defendants deny that there was any such verbal agreement and further deny that the conveyances referred to were not genuine.

We digress at this point to note that although plaintiff in his petition alleges generally that no consideration was paid in connection with the 1926 sale he does not seek to have such sale and the subsequent partition declared simulated contracts. R.C.C. Articles 2239, 2444, and 2480. Rather, as aforesaid, he confirms the validity of these contracts but seeks a decree recognizing that the grantee in such written instruments, i. e., L. P. Wright, was acting not only for himself but also for plaintiff and John W. Wright.

The trial judge, over timely objection by defendants, permitted the introduction of parol evidence tending to establish the alleged verbal agreements referred to. In addition to this parol evidence plaintiff introduced as exhibit P-9 a quitclaim deed from John W. Wright to O. L. Wright which purports to convey all right, title and interest of the grantor in the 78 acre tract. On the basis of this evidence the trial court rendered judgment recognizing plaintiff, 0. L. Wright, as owner of an undivided one-half interest in the 78 acre tract and directed that said tract of land be divided as follows:

“The one-half (V2) interest herein allotted to 0. L. Wright is located on the side of the property so as to cover and embrace the “camp house” that 0. L. Wright presently uses or occupies and the one-half interest herein allotted to the heirs of Langston Wright is the divided one-half interest which includes the area and grounds of the home that his widow presently resides in. The boundary line between these tracts is to be established at a 90° angle from the blacktop highway at the location which will divide the property 50% on each side of said line or as close thereto as practical.”

Defendants have appealed. Plaintiff has answered the appeal of defendants praying that the judgment be amended so as to recognize plaintiff-appellee as owner of a full %rds undivided interest in the property in question. We reverse.

The trial court clearly erred in permitting the introduction of parol evidence which contradicted the verity and reality of the recitals contained in the 1926 deed and the 1935 partition deed and in accepting such evidence as creating title to an interest in the 78 acre tract in the plaintiff.

Plaintiff did not allege nor did he establish that the deeds referred to were executed as a result of fraud, mutual error or force. Plaintiff did not allege nor did he establish the existence of a counter-letter. Plaintiff did not propound interrogatories to defendants seeking to have the latter admit his ownership of an interest in the property sought to be partitioned. To the contrary defendants denied categorically, under oath, that plaintiff owned any interest in the 78 acre tract.

R.C.C. Article 2275 provides as follows:

“Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.”

R.C.C. Article 2276 provides as follows:

“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

Our courts, in interpreting Article 2276, have consistently held that in the absence of fraud, mutual error, or force, parol evidence is not admissible to vary, contradict or add to the terms of a written instrument.

In Scurto v. Le Blanc, 191 La. 136, 184 So. 567 (1938) our Supreme Court in disposing of a like issue stated as follows:

“It is axiomatic under the law and jurisprudence of this State that parol tevidence is inadmissable to create a title in one who never owned the immovable property or to show that the vendee was in reality some other person than the person named in the act of sale. Ceromi v. Harris, 187 La. 701, 175 So. 462, and the authorities therein cited.
And it has been held that the rule finds no exception in the case of a purchase of real estate by an agent with funds alleged to belong to his principal. Hackenburg v. Gartskamp, 30 La.Ann. 898; Perrault v. Perrault, 32 La.Ann. 635; Stierle v. Kaiser, 45 La.Ann. 580, 12 So. 839. Even where real estate is acquired with stolen money the owner of the money does not become the owner of the property. George v. Campbell, 26 La.Ann. 445. It is also the general rule of our jurisprudence that the verity and reality of authentic sales of immovable property can be assailed only in two ways: ‘First, by means of a counter letter; second, by the answers of the other party to interrogatories on fact and articles, which stand in lieu of and are equivalent to a counter letter.’ Godwin v. Neustadtl, 42 La.Ann. 735, 7 So. 744.
When answers to interrogatories on facts and articles are used to supply the place of a counter letter, they are not subject to contradiction by anything short of a counter letter or other written evidence. Id.
The rule finds its only relaxation where the owner of real estate is influenced by fraud or error to rest his title in another. LeBleu v. Savoie, 109 La. 680, 33 So. 729; Maskrey v. Johnson, 122 La. 791, 48 So. 266; Cuggy v. Zeller, 132 La. 222, 61 So. 209; Hodge v. Hodge, 151 La. 612, 92 So. 134.”

To the same effect as Scurto, supra, see: Succession of Nelson, 224 La. 731, 70 So.2d 665 (1953); Little v. Haik, 246 La. 121, 163 So.2d 558 (1964); Burt v. Valois, 144 So.2d 196 (La.App. 1st Cir. 1962); Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963); and, Miles v. Miles, 328 So.2d 394 (La.App. 3rd Cir. 1976).

Considering the codal and jurisprudential authorities above referred to it is abundantly clear that plaintiff has not shown that he acquired any interest in the 78 acre tract under the 1926 deed or the 1935 partition. Plaintiff’s only other claim to an interest in the subject land rests in the quitclaim deed from John W. Wright (exhibit P-9). It is equally clear that plaintiff acquired no interest in the 78 acre tract under this deed. The record fails to reflect that the grantor in the deed referred to ever acquired any interest in the land in controversy from anyone. To the contrary, Mr. John W. Wright candidly admitted in his testimony that he did not have record title to the interest which he purported to convey by this quitclaim deed.

Having determined that plaintiff does not now own and never did own any interest in the 78 acre tract it necessarily follows that he is not entitled to demand a partition thereof. Samuels et al. v. Parsons et al., 146 La. 262, 83 So. 548 (1919); Bickham v. Pitts et al., 185 La. 930, 171 So. 80 (1936); and, Broussard v. Allen, 198 La. 475, 3 So.2d 742 (1941).

For the above and foregoing reasons the judgment of the trial court is reversed and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed with prejudice. All costs at the trial level and on appeal are to be borne by the plaintiff-ap-pellee.

REVERSED AND RENDERED.

      . All proceedings had in the matter of the Succession of J. L. Wright, including the appointment of French Wright as Administrator, were declared null, void and of no effect by judgment dated May 26, 1975 rendered in proceedings numbered 889 of the probate docket of the Seventh Judicial District Court (Tr. pg. 20). There was no appeal taken from that judgment. Thereafter the instant suit was dismissed as to the Succession and continued against the three individual defendants.

      . Defendants’ exception of failure to join indispensable parties asserts that the 6 acre tract of land is owned by the twelve heirs of Langford Preston Wright and Catherine Anderson Wright; that plaintiff and defendants each own only a ‘/12th interest in said property; and, that the remaining ten heirs, or their descendants, are indispensable parties to a partition of this tract. Although the trial court did not rule on this exception the final judgment rendered and signed in this matter orders a partition only of the 78 acre tract. The judgment rendered being silent as to the 6 acre tract the ownership thereof and plaintiffs claimed right to a partition thereof is not before us on this appeal.

      . In fixing the interest of O. L. Wright at V2 instead of 2/3rds the trial judge stated as follows in his brief reasons for judgment. “O. L. Wright ‘bought’ the interest of Jack Wright, which if considered, would give him an undivided two-thirds interest in the property in question. However, O. L. Wright testified that he and the late Langston Wright agreed that the property should be divided equally, therefore, O. L. Wright should receive clear title to one-half of the property in question . . .


text:
    SCOTT TRUCK & TRACTOR CO. OF ALEXANDRIA, INC., Plaintiff-Appellee, v. Louis J. DAIGRE d/b/a Rigolette Ranch et al., Defendants-Appellants.
    No. 5991.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., James C. Downs, Alexandria, for defendants-appellants.
    Hayes, Harkey, Smith & Cascio by Louis D. Smith, Monroe, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

This suit on open account was instituted by plaintiff to recover money allegedly due it for making certain repairs on. a tractor. Defendants are Louis J. Daigre, d/b/a Ri-golette Ranch and A. J. Vangilder. The trial court rendered judgment in favor of the plaintiff and against both defendants, in solido, in the amount of $1,729.34, plus legal interest from June 6,1975, the date of judicial demand. Both defendants appeal. Plaintiff answered the appeals praying that the trial court judgment be modified such that the' principal amount will bear legal interest from August 1, 1974 until paid.

It was stipulated at the time of trial that plaintiff did perform the repair work on the tractor and that the amount due for the work is as set forth on the invoice copy, identified as P-1, in the amount of $1,729.34. Each defendant denies liability and contends that the other is fully responsible to plaintiff for the repair work performed.

The facts show that the tractor in question, which was a small industrial tractor with a front end loader, was owned by the defendant Louis J. Daigre. This tractor, along with other farm equipment Daigre owned, and a 550 acre parcel of land also owned by Daigre, were leased to defendant, A. J. Vangilder. The pertinent lease provisions read as follows:

“2. Daigre will furnish the land and all of the mechanical equipment that he presently owns which is located on the farm as needed for farm purposes.
3. Van Gilder will furnish all other necessary mechanical equipment and all other costs for successfully producing a crop on the above land with the exception of fertilizer and/or lime if required which costs will be born on a share and share-alike basis. Van Gilder (sic) will be totally responsible for all repairs and maintenance on all of Daigre’s equipment that he uses.”

The lease was for the calendar years 1972, 1973 and 1974.

We here note that since neither of the defendants filed third party demands against the other we are without authority to consider any dispute between them as to the ultimate responsibility for the amount due plaintiff under the quoted lease provisions.

The testimony of Charles Breland, the farm equipment service manager for plaintiff, indicates that the tractor in question was brought in for repairs by Vangilder sometime around the middle of June, 1974. At this time a job ticket was made out in Vangilder’s name. Breland stated that Vangilder brought the tractor in for minor repairs, including service for an oil leak. It was admitted by Breland that Vangilder contemplated repairs to the top transmission gasket which would have cost in the neighborhood of $100.00. Subsequently, upon disassembly of the tractor, Breland found the transmission and differential housing was cracked and that the repair would require extensive work. He also discovered there was some pinion gears broken on the rear end of the tractor. Breland testified that he believed he reported these findings to Vangilder before undertaking this major repair work. He could not, however, recall what Vangilder said in response, nor could he recall exactly who authorized the increased amount of work on the tractor. Breland admitted that he could not give a clear answer in regards to any further contact he had with Vangilder after the latter initially brought the tractor into the shop for repair.

Breland testified that he proceeded to do the additional work on the tractor. The repair work took some two months to complete, the reasons for the long delay being the unavailability of needed parts. Breland stated that on a number of occasions Daigre came into the shop asking why the tractor repairs had not been completed. Breland, who had previously worked on the tractor, knew it belonged to Daigre.

Charles Payne, plaintiff’s vice-president and general manager, testified he spoke with A. J. Vangilder when he first brought the tractor in for repair. Payne admitted that at this time Vangilder contemplated minor repairs to the tractor and only authorized such minor repairs as he thought were needed. Payne stated that it was not until after the more complicated and expensive work was complete did he again have contact with Vangilder. Following completion of the repair work Payne forwarded plaintiff’s bill, dated August 8,1974, to Vangilder. A. J. Vangilder, upon receipt of the bill, called Payne and told him to send the bill to Louis Daigre d/b/a Rigolette Ranch.

Payne testified that Vangilder subsequent to his bringing the tractor into the shop may have come back to check on the progress of the repair. Payne positively testified that Daigre came by three or four times wanting to know if the tractor was complete so that he could get it back out on the job. Payne had several conversations with Daigre concerning the tractor, and although Daigre did not say he would be responsible for the repair, he did tell Payne to get the parts and fix it. When asked whether these conversations with Daigre included the fact that the work would be more expensive than originally anticipated, Payne responded he was quite sure that both Daigre and Vangilder were aware the work to be performed on the transmission housing would be more expensive.

Louis Daigre testified he was the owner of the tractor in question and that this same tractor constituted part of the farm equipment which he leased to Vangilder. He stated that it was upon his repeated insistence that Vangilder took the tractor in for repair. Daigre admitted he had free use of the tractor as long as it did not interfere with Vangilder’s farm operation. The testimony of Daigre reflects that he used the tractor extensively, for such jobs as setting culverts, bush hogging, and building fences. He also stated that he made personal use of the tractor at his residence and camp on several occasions. Jimmy Moore, the principal operator of the tractor was employed by Daigre. Finally Daigre testified that he had frequently checked on the tractor at plaintiff’s to see when it would be finished.

The testimony of Steve Neal, a former employee of Vangilder, reveals that just before the tractor was brought in for repair it was being used by Daigre and Jimmy Moore to build fences. Neal testified that at this time he was temporarily employed by Daigre to work on the fences. He later returned to the employ of Vangilder.

A. J. Vangilder admitted that he told Daigre he would have the minor oil leak in the tractor repaired. Vangilder stated that Daigre wanted the tractor fixed so he could use it to fence in a new tract of land he had just bought. Thinking that the tractor had only a gasket leak, Vangilder stated that he delivered the machine to plaintiff with the needed parts, which included a gasket and clutch, along with a throwout bearing. He stated that after the initial delivery of the tractor no one at plaintiff’s ever had any discussions with him concerning the extent of the repairs to the tractor. It was not until August 8, 1974, when Vangilder received plaintiff’s bill was he aware of the amount of work that had been done. Van-gilder stated that after he brought the tractor in he never personally went back to plaintiff’s shop to check on the tractor. He added that in his farming operation he seldom used the tractor.

The trial judge in his written reasons for judgment specifically found that the evidence did not establish that Vangilder authorized the major repairs. However, the trial judge found there was a preponderance of the evidence to the effect that Vangilder was made aware that the repairs were necessary and that he had checked on these repairs. Accordingly the trial judge concluded that Vangilder impliedly agreed to the major repairs and was liable therefor.

Also the trial judge found no evidence that Daigre agreed to be liable for the repairs, although he was aware that the repairs were being made and checked on their progress on several occasions. The trial judge was unable to find an implied contractual relationship between Daigre and plaintiff. The trial judge did determine however, that Daigre as owner of the tractor benefited from its repair, and accordingly found him liable to plaintiff under quantum meruit. Both defendants were cast in judgment in solido.

We are unable to reconcile the trial court’s conclusions. To summarize, the trial court finds both defendants had not authorized the major repair work, although both were aware that the repair work was being performed and that each checked on the progress of the work. This notwithstanding the trial court finds defendant Vangilder, had impliedly agreed to the major repairs. Yet, Daigre, acknowledged by all parties to have been the owner of the tractor, was found by the trial court not to have impliedly contracted with plaintiff for the work performed.

After reviewing all the evidence in this matter we agree with the trial court’s finding that neither of the defendants authorized the major repair work performed on the tractor. Further we are of the opinion the evidence shows that neither of the defendants, either expressly or impliedly agreed to be liable for the major repair work, although quite obviously both defendants were aware that plaintiff was doing some repair work on the tractor. We determine that the trial court’s finding to the contrary, i. e., that Vangilder had impliedly contracted with plaintiff for the major repair work, is manifestly erroneous. We are convinced that there was never any full understanding between plaintiff and defendants as to the extent of the repair work to be performed and the responsibility therefor. Accordingly, we find that no contract existed between the plaintiff and either one of the defendants for the major repair work performed.

We here note that there is no question but that the defendant Vangilder did contract with plaintiff for the minor repair work performed. We find Vangilder liable to the plaintiff only to that extent. The minor repair work was estimated to have cost $100.00.

Finally, we agree with the trial judge’s determination that a quasi-contractual relationship was created between plaintiff and the tractor’s owner, defendant Louis Daigre. Louis Daigre, on several occasions informed plaintiff that he needed and wanted his tractor repaired in order to get it back on the job, although, as aforesaid, he did not specifically agree to be bound for this major repair work. Plaintiff carried out his wishes. To the extent that the major repair work on the tractor was performed as a result of Louis Daigre’s actions, Daigre has been enriched and plaintiff has been impoverished. Additionally, we find that since no contract existed between plaintiff and defendants, and no other remedy at law, either against Daigre or a third person existed for plaintiff, the requirements for granting recovery under quantum meruit have been met. LSA-R. C.C. Articles 1963-1965, 2292-2294; Patin v. Jumonville, 336 So.2d 259 (La.App. 1st Cir. 1976) writs refused November 19,1976.

Plaintiff has answered the defendants’ appeal, praying that it be awarded legal interest from August 1, 1974, the date of the open account. Our review of the record reveals no special arrangements were made between the parties for payment of legal interest from the date of the account. Accordingly, as concerns A. J. Vangilder he is liable to plaintiff for legal interest only from the date of judicial demand. Mack Trucks, Inc. v. Capitano, 204 So.2d 710 (La.App. 4th Cir. 1967). As concerns Louis Daigre, it is well settled in our jurisprudence that a debt owed under quantum meruit does not become due until the amount is ascertained, i. e., the date of the final judgment. Brummett v. Hamel’s Dairy, Inc., 324 So.2d 502 (La.App. 2nd Cir. 1975). We amend the judgment of the trial court insofar as it casts Louis Daigre for legal interest from the date of judicial demand to provide that he now be cast for legal interest only from the date of the final judgment in this matter.

For the above and foregoing reasons the judgment appealed from is amended and recast as follows:

It is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Scott Truck and Tractor Company of Alexandria, Louisiana, Inc., and against the defendant A. J. Vangilder in the amount of $100.00, plus legal interest from the date of judicial demand until paid.

It is further ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Scott Truck and Tractor Company of Alexandria, Louisiana, Inc., and against the defendant Louis Daigre, in the amount of $1,629.34, plus legal interest from the date of final judgment until paid.

All costs of these proceedings at the trial court and on appeal are to be borne equally by each of the defendants-appellants.

AMENDED AND AFFIRMED AS AMENDED.

      . In regards to the above findings we draw no conclusions as to Vangilder’s liability to Louis Daigre for these repairs under their contract of lease, as that issue is not before us.


author: WATSON, Judge.

text:
    Tommy BURLEW, Plaintiff-Appellant, v. HOUSTON GENERAL INSURANCE COMPANY, Defendant-Appellee.
    No. 5992.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Ford & Nugent by Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.
    Antoon & Dalrymple by Joseph T. Dal-rymple, Alexandria, for defendant-appellee.
    Before WATSON, FORET and HEARD, JJ.
   WATSON, Judge.

This is a workmen’s compensation suit brought by Tommy Burlew, a heavy equipment mechanic employed by Central Louisiana State Hospital, against his employer’s compensation insurer, Houston General Insurance Company, in which the trial court awarded total and permanent benefits; denied credit to the insurer for wages paid; and declined to give penalties and attorney’s fees to plaintiff. It is agreed that Burlew’s work was hazardous and his compensation rate $65 per week.

On March 24, 1975, Burlew was attempting to bolt together the engine and transmission assembly of an asphalt roller at the shop of Central Louisiana State Hospital when he sustained a twisting type injury to his low back. He immediately reported the injury, completed an accident report and was referred to Dr. Kingsley, an orthopedic surgeon of Alexandria, who examined and x-rayed him. After a few days of rest at home, Burlew was admitted to Rapides General Hospital and put in traction for a period of time. After leaving the hospital, he was fitted with a back brace by Dr. Kingsley.

On May 9, 1975, Burlew was given a slip by Dr. Kingsley (a photocopy was admitted into evidence as D-l), which originally read as follows:

“This patient has recovered sufficiently enough to return to light work. He is not being discharged at this time though.”

It was signed by D. M. Kingsley, M.D. However, some unidentified person crossed out the word “light” and placed the initials “E.R.F.” near the crossed out word. In addition, a physician in the employ of Central Louisiana State Hospital, Dr. Allen, endorsed on the slip:

“5/12/75 May return to full duty today. J. W. Allen, M.D.”

On May 12, 1975, Burlew, still wearing his back brace, returned to work but assumed only light duties. The defendant terminated compensation benefits, apparently on the basis of the slip of paper signed by Dr. Kingsley and Dr. Allen.

After trial on the merits, the trial court awarded total and permanent benefits in the amount of $65 per week for 500 weeks subject to a credit for compensation previously paid. Judgment was also awarded for statutory medical expenses subject to a credit of $1100.52 previously paid.

The trial court declined to give credit to defendant for wages paid to Burlew from the day he returned to work until January, 1976 when he was promoted to fleet superintendent. Also, the trial court declined to award Burlew penalties and attorney’s fees, holding that the termination of benefits was not arbitrary or capricious.

Burlew was also examined by Dr. Homer Kirgis of New Orleans, who diagnosed a ruptured disc.

Three issues must be considered on appeal:

(1) Did the trial court correctly award total and permanent benefits?
(2) Should the trial court have given defendant credit for wages paid in lieu of compensation?
(3) Did the trial court err in denying an award for penalties and attorney’s fees?

DISABILITY

The trial court based its award of compensation on the testimony by deposition of Dr. Kingsley and Dr. Kirgis. In summary, Dr. Kingsley believes that Bur-lew’s present complaints of pain result from a congenital arthritic condition although he is uncertain and would like to perform a myelogram. Dr. Kirgis believes that plaintiff’s back trouble is due to a damaged disc.

The trial court correctly held that the evidence establishes total and permanent disability, noting that it is impossible to attribute part of plaintiff’s disability to his accident and part to an arthritic condition, citing Johnson v. Travelers Insurance Co., 284 So.2d 888 (La., 1973). We find no error in this conclusion.

CREDIT FOR WAGES PAID

Defendant has answered the appeal, asking that the judgment be modified to allow credit in the amount of $1,950 for wages paid in lieu of compensation benefits for the period from May 12, 1975 until January, 1976.

The law relative to credit for wages is summarized in LeBlanc v. Mangel’s of Louisiana, Inc., 306 So.2d 422 (La.App. 3 Cir. 1975), where Judge Frugé wrote as follows:

“The basic test in Louisiana for determining whether wages are paid in lieu of compensation is whether the wages paid after the injury are actually earned. Lindsey v. Continental Casualty Company, 242 La. 694, 138 So.2d 543 (1962); Madison v. American Sugar Refining Company, 243 La. 408, 144 So.2d 377 (1962). This issue depends on the facts of each case. Madison v. American Sugar Refining Company, supra; Francis v. Kaiser Aluminum and Chemical Corporation, 225 So.2d 756 (La.App. 4th Cir., 1969); Daigle v. Liberty Mutual Insurance Company, 205 So.2d 507 (La.App. 3d Cir., 1968). No inference arises that wages were paid in lieu of compensation from the fact that the work performed after the accident was lighter or dissimilar from that done prior to the accident. Ledoux v. William T. Burton Company, 171 So.2d 795 (La.App. 3d Cir., 1965). Although the plaintiff’s duties had changed somewhat since the accident, there is no indication in the record that her employer was paying her gratuitously-”

306 So.2d 426.

The situation of Burlew is analogous to that of LeBlanc. He was assigned lighter duties but he earned his wages, according to the conclusion of the trial court. (TR. 28). We find no error.

PENALTIES AND ATTORNEY’S FEES

To determine whether the termination of weekly benefits by the defendant was arbitrary and capricious, it is necessary to refer to the testimony of James R. Brooks, claims manager for State Adjusters, the only witness for the defendant. Brooks testified that payments were terminated in May, 1975 on the basis of the slip previously described which originated in Dr. Kingsley’s office. However, Brooks admitted that he did not handle the claim, which was handled by a Lloyd Albright, now living in Arizona (TR. 78). Brooks also admitted knowing that Dr. Allen at Central Hospital has an administrative job, and that Dr. Kingsley was Burlew’s treating physician.

Brooks further admitted that the slip said “light” work before it was altered. (TR. 81) The file of the insurance company did not reflect that anyone- contacted Dr. Kingsley to ascertain that plaintiff was being returned to full duty, and Brooks testified specifically that his company did not have any reason to believe that Dr. Allen had examined or treated Burlew.

The only possible conclusion from Brooks’ testimony is that the defendant insurer halted payment of Burlew’s weekly compensation benefits with the knowledge that Burlew had been returned only to light duties without being discharged by Dr. Kingsley. Under these circumstances, as a matter of law, the cessation of payment of weekly compensation benefits was arbitrary and capricious, subjecting defendant to payment of penalties and attorney’s fees. Trahan v. Rockwood Insurance Company, 284 So.2d 659 (La.App. 3 Cir. 1973); Chavis v. Maryland Casualty Company, 307 So.2d 663 (La.App. 3 Cir. 1975), writ refused 310 So.2d 854 (La., 1975).

Penalties are due on payments not made from May 14, 1975 (date of termination) to January 1,1976 (date Burlew was promoted to Fleet Supervisor). An attorney’s fee of $3,500 would be appropriate, considering the nature of the case, the skill of counsel, the time apparently involved and the result achieved. The fee includes services both at trial and on appeal. Cf. Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3 Cir. 1976).

Therefore, the judgment of the trial court awarding total and permanent benefits is affirmed; the judgment of the trial court refusing to give credit for the payment of certain wages in lieu of compensation is affirmed; but the judgment of the trial court denying an award for penalties and attorney’s fees is reversed.

The judgment of the trial court is amended as follows:

It is ordered, adjudged and decreed that there be additional judgment in favor of Tommy Burlew, plaintiff, and against Houston General Insurance Company, defendant, in the amount of 12% of all weekly workmen’s compensation payments due and payable from May 14, 1975 until January 1, 1976 plus an attorney’s fee in the amount of $3,500.

Costs of the appeal are taxed against defendant.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.