author: LOTTINGER, Judge.

text:
    TRI-SOUTH MORTGAGE INVESTORS v. NEW COMMUNITIES, INC.
    No. 11440.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.

      Donald A. Meyer, Robert P. Chatelain, New Orleans, for plaintiff and appellee.
    Darryl J. Carimi, Gretna, E. Bradford Holbrook, Jr., New Orleans, for defendant and appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an executory process. At 349 So.2d 1321 (La.App. 1st Cir. 1977) we dismissed plaintiff’s suit on an exception of no right of action. Writs were applied for and granted on September 30,1977, at 350 So.2d 1206 (La.1977) as follows:

“Writ granted. Judgment of court of appeal reversed. Ruling of Trial Judge is correct. See La. R.S. 12:491 et seq. as amended by Act 526 of 1977. Case remanded to court of appeal for further proceedings.”

We now consider the case on its merits. Tri-South Mortgage Investors (Tri-South) filed this executory process against New Communities, Inc. (New) to enforce a mortgage with an alleged $2,363,834.24 balance together with accrued and unpaid interest affecting certain immovable property located in Terrebonne Parish, Louisiana, near Morgan City. To its petition for executory process Tri-South attached a certified copy of the collateral mortgage, the original of the collateral mortgage note, and a certified copy of the resolution of the Board of Directors of New authorizing the execution of the mortgage and note. A writ of seizure and sale was issued pursuant thereto.

Defendant filed a petition for injunction contending that plaintiff’s action was premature, defendant had a liquidated claim to assert against plaintiff, there was no consideration for the note sued upon, and sufficient authentic evidence was not submitted with the petition. J.E.F. Developers, a Louisiana partnership, Julian E. Fernandez, Lloyd J. Guillory and Rufus M. Carimi filed an intervention seeking damages against plaintiff alleging they were the owners of the property seized. A temporary restraining order was issued and a hearing on the injunction was held. The Trial Judge ultimately denied the injunction. In appealing defendant contends that the Trial Judge erred:

(1) In allowing non-authentic evidence to be presented at the injunction hearing to support the previously issued writ of seizure and sale;
(2) In finding that consideration was received by New for the collateral mortgage note being sued upon;
(3) In not holding that the debt was premature because the hand note on its face is not due until June 29, 1976, and this action was commenced on January 16, 1976;
(4) In relying on evidence not in authentic form to prove an act of default which was necessary to mature the hand note sooner than June 29, 1976, because TriSouth must prove that an act of default occurred in order to mature the hand note and the only document which defines what constitutes an act of default is a development loan agreement which agreement is not in authentic form;
(5) In considering the hand note which was not in authentic form to evidence the actual debt from Tri-South to New;
(6) In not considering as one document the development loan agreement, the hand note, the collateral mortgage note and the collateral mortgage since by their own language (prepared by Tri-South’s attorneys) they must all be considered together and therefore must be in authentic form to support executory process;
(7) In relying upon the collateral mortgage note which is in authentic form and which states that the debt is $5,600,-000.00. A debt in that amount never existed and therefore the record contained no proof of the actual debt and without this proof executory process fails;
(8) In failing to enjoin the proceedings since petitioners in intervention (appellants herein) have a liquidated claim to plead in compensation to the claim of Tri-South;
(9) In failing to enjoin the executory proceedings because the executory proceeding is an unconstitutional denial of the due process provisions of the Fourteenth Amendment of the United States Constitution as to appellants since the order of seizure and sale is grounded solely on a collateral mortgage and collateral mortgage note in authentic form for which collateral mortgage note no consideration was received and since the order of seizure and sale is based upon no other documents in authentic form which prove the existence of a debt; and
(10) In failing to find that appellant will suffer irreparable injury if the executory seizure and sale is not enjoined.

ERRORS NOS. 1, 3, 4, 5, 6, & 7

Under these assignments of errors appellant basically argues that sufficient authentic evidence was not presented with the petition to authorize the use of executo-ry process. Appellant contends that in addition to the original of the mortgage note and a certified copy of the mortgage and resolution of the defendant, a hand note and loan development agreement should have been considered as the entire loan agreement. Further it is argued that at the time suit was filed, January 16, 1976, the hand note had not matured, June 29, 1976, and the only default would be of the loan development agreement which was not in authentic form.

The Trial Judge was not in error in authorizing the use of executory process where he was presented with the original of the mortgage note, a certified copy of the mortgage and resolution of defendant, and a verification of the petition. For the purpose of executory process, the collateral mortgage note is the instrument evidencing the obligation secured by the mortgage, and thus it is not necessary to present the hand note with the petition. In like manner, neither is it necessary to present the loan agreement. Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450 (La.App. 1st Cir. 1976).

Appellant also contends that at the injunction hearing the Trial Judge relied on non-authentic evidence to find a default. Specifically, appellant contends that it was error for the Trial Judge at the injunction hearing to rely on the loan development agreement to determine there had been a default. Appellant does not argue that the Trial Judge was in error in his concluding that New was in default, but rather that he relied on non-authentic evidence.

Plaintiff has presented with its petition all that the law and jurisprudence require. At the injunction hearing, defendant-appellant had the burden of proving his case. New has failed to show it was not in default. We find no error.

ERROR NO. 2

Defendant-appellant argues that it received no money consideration for the collateral mortgage note, thus it is not enforceable. We disagree. See Cameron Brown South, Inc. v. East Glen Oaks, supra.

ERROR NO. 8

. After a thorough reading of the record we conclude that the Trial Judge was not in error in failing to find a liquidated claim on behalf of the defendant or interve-nors. The claim, which New asserts, is not based on an agreement or established by litigation, thus it fails to qualify as a liquidated claim. Their claim, that had there been prior notice of the discontinuance of funding by Tri-South, New would not have expended or incurred further liabilities for the construction of the project, cannot be asserted as a liquidated debt. Without deciding the validity of the claim this Court fails to find that the record contains any evidence to establish that the claim is liquidated under an agreement or by litigation and therefore the writ of seizure and sale will not be arrested on an unliquidated claim.

ERROR NO. 9

For the reasons assigned hereinabove and Buckner v. Carmack, 272 So.2d 326 (La.1973) we find no error.

ERROR NO. 10

Appellant argues that by allowing the seizure and sale to go forward it would suffer irreparable injury because it would lose its project, and second, it will be unable to collect damages against plaintiff because of its alleged serious financial difficulties.

Appellant presented the testimony of an expert in the field of financial analysis whose opinion it was that plaintiff was in financial trouble. Appellee argues that appellant’s expert admitted to being contacted only 2V2 days prior to trial, and only reviewing the document from which he testified one hour before he testified. Appellee presented testimony offsetting that presented by defendant. Plaintiff-appellee further argues that the grounds for the injunction sought by defendant, i. e. loss of project and fear of plaintiff’s financial standing are not included in LSA-C.C.P. art. 2751 as a ground authorizing issuance of an injunction to arrest, seizure and sale.

We seriously question whether these grounds would authorize the issuance of an injunction under the authority of LSA-C. C.P. art. 2751, but be that as it may, the Trial Judge listened to all witnesses on this particular issue, and it is apparent he was of the opinion that defendant did not prove its case. We agree and find no error.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed at defendant-appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Rodney LeJEUNE et al. v. FLASH TRUCK LINE, INC., et al.
    No. 11565.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    J. William Pucheau, Ville Platte, Robert L. Cabes, Lafayette, John J. Cooper, New Orleans, for plaintiffs and appellees.

      Robert E. Leake, Jr., and John I. Hulse, IV, New Orleans, for defendants and appellants.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant Canadian Universal Insurance Company (Appellant), excess insurer of Flash Truck Line, Inc. (Flash), appeals judgment awarding plaintiff, Rodney Le-Jeune (Appellee), damages in the sum of $50,000.00 for personal injuries sustained in an accident allegedly caused by the negligence of Flash’s driver whom Appellee was assisting in the unloading of oil field equipment from Flash’s truck, at a well site being reworked by Appellee’s employer Pelican Well Service (Pelican). Judgment was also rendered in favor of Traders and General Insurance Company (Traders) who intervened claiming recovery of workmen’s compensation benefits paid Appellee as Pelican’s insurer. Fidelity and Casualty Insurance Company, Flash’s primary insurer, also made defendant, whose coverage is limited to $10,000.00, has not appealed. Appellee has answered the appeal, requesting an increase in damages. We affirm in all respects.

Appellant urges the following trial court errors: (1) a finding that an accident occurred despite overwhelming evidence that the accident could not have happened in the manner related by Appellee; (2) acceptance of Appellee’s testimony regarding his disability, despite numerous contradictory statements by Appellee that the injury occurred in a fall at Appellee’s home; (3) acceptance of Appellee’s testimony as credible notwithstanding total destruction of his veracity by Appellant’s showing Appellee’s concealment of disabling illnesses and accidents unrelated to Appellee’s employment; and (4) awarding excessive damages.

Appellee and his witnesses, Nellard Brown and James Fontenot (fellow employees), testified that the accident occurred about midmorning, April 16, 1966, at a well being reworked by Pelican in the Valentine Oil Field. Pelican’s crew consisted of Ap-pellee as driller in charge, the above named co-workers and also D. L. Fontenot. Appel-lee was then 41 years of age and had been employed by Pelican for about 6 months. Flash’s truck, driven by its employee Ralph Derrick, delivered some equipment to the drill site, including four or five 30 foot lengths of drill collars measuring 3Vs inches in diameter and each weighing about 400-500 pounds. While assisting Derrick in unloading the drill collars, Appellee allegedly injured his right shoulder.

Suit was filed in April, 1967. Trial was held on three discontinuous days, namely, December 30, 1970, January 11, 1971, and January 21, 1972. On the second trial day, Appellant introduced numerous records of the Veterans Administration (V.A.), indicating Appellee’s hospitalization for illnesses and disabilities, including an application for disability pension for alleged service connected disability. The V.A. records also contained statements inconsistent with those Appellee had previously given concerning his health and general physical condition. These records had not been seen by Appellee’s counsel because they were received by Appellant, in response to subpoena, shortly before the second trial date. Counsel for Appellee requested the matter be held open for his examination of these records, and decision as to whether to depose the V.A. medical staff and employees who compiled the information shown thereon. Thereafter counsel for Appellee advised the court he did not wish to depose the V.A. personnel. This development was followed by Appellant’s request for a third trial date to offer in evidence V.A. records made available to him since the second trial date. The trial court granted the additional date which was set for and held January 21, 1972. The record compiled on the third trial date was lost. After several motions and a contradictory hearing held at Appel-lee’s request, the trial court scheduled a hearing for February 24, 1975, to reconstruct the record of the third trial date. Counsel for Appellant did not appear for the scheduled hearing, apparently due to a misunderstanding as to the date. Neither did counsel advise the court counsel would not be present. Counsel for Appellee moved to close the record because of the failure of Appellant’s counsel to appear. The court ordered the record closed. Subsequently, counsel for Appellant requested and was granted an additional trial date to reconstruct the lost portion of the record. The last trial date was set for and held on March 16, 1976.

On the final trial date, Appellant attempted to introduce evidence concerning issues not originally raised on the initial third day of trial. Appellee objected thereto, especially objecting to additional V.A. records which tended to further impeach Appellee’s veracity and credibility. The trial court sustained Appellee’s objections on the ground that the new evidence exceeded the testimony and evidence offered on the original third day of trial. The court did, however, permit Appellant to offer the evidence and documents and allowed cross-examination of Appellee with respect thereto, by way of proffer. The evidence is before us by way of proffer. It includes, primarily, additional V.A. records of Appellee’s admission to V.A. Hospitals.

Ralph Derrick, driver of Flash’s truck on the day of the accident, was no longer employed by Flash and was unavailable as a witness. Leonard Derrick, brother of Ralph, and part owner of Flash, testifying from company records, verified that a load of equipment including some drill collars, was made to Pelican’s site in the Valentine Oil Field, on the day in question. He stated the alleged accident was not reported by his brother and that he had no knowledge of the incident until demand was made by Appellee’s counsel long after the date in question. He recalled loading the truck, the drill collars being placed in the center of the float or flat bed trailer on which delivery was made. The collars rested on 4 X 4’s laid flat on the float. The collars were held in place by a chain placed around them at each end. A binder equipped with hooks was used to tighten the chains to hold the collars in place during transit. The chains were secured by passing them beneath and fastening them to road rails parallel to each side of the float.

Although he was not present at the unloading, Derrick testified as to the customary manner of unloading. He explained that such loads would be further secured by “pegs” consisting of timbers or iron bars inserted in slots at each of the four corners of the float. He conceded it was the truck driver’s duty to supervise unloading the truck. On arrival at delivery point, the driver would position his truck where the load was to be deposited. He would then release the binders, which did not necessarily release the chains. If the collars did not move, the driver would then release hooks which further secured the chains, and lastly would remove the pegs before prying off the first collar.

It is shown that as a rule a rig is equipped with a nearby pipe rack erected to a height about 1 foot below normal truck bed height. Pipe and drill collars delivered to a rig are simply rolled off the .truck onto the rack. Subject rig, however, did not have a pipe rack. In such instances, it is customary to place boards on the ground, create a ramp by placing boards at the front and rear of the float and roll the pipe or drill collars down the incline onto the boards in lieu of dropping pipe and drill collars directly from truck bed to the ground.

Appellee, Brown and James Fontenot testified in substance that when the truck arrived, Appellee directed Brown and Fon-tenot to assist him and the truck driver in unloading the pipe. Appellee directed Brown and Fontenot to lay boards on the ground and construct a ramp in the manner indicated. They also stated that D. L. Fon-tenot was instructed by Appellee to remain at work on the rig.

Conflict exists between the testimony of Appellee, Brown and Fontenot as to their respective positions at the time of the accident and also as to how the accident occurred. Appellee testified Brown was stooping down on the driver’s side of the trailer, adjusting the boards on the ground, when the truck driver released the chains without warning and the drill collars began rolling down the incline. Appellee yelled to the driver not to release the chains, but to no avail. As the drill collars started to roll, Appellee feared they would injure Brown. Appellee, who was standing near the rear of the float, on the same side as Brown, thrust out his right arm to slow the descent of the collars long enough for Brown to get out of the way, but the weight of the collars put a strain on his right arm and shoulder sufficient to cause the shoulder to hurt and a lump to appear immediately. Appellee yelled that his arm was hurt and immediately walked away from the truck. He did not report the accident to the truck driver. Appellee’s injury was subsequently diagnosed as a tear of the rotator cuff of the right shoulder.

Brown and James Fontenot corroborate Appellee’s testimony to the effect that Ap-pellee yelled to the driver not to release the chains on the pipe; that Appellee did attempt to keep the pipe from rolling off the truck bed; and that Appellee yelled out immediately that his arm was hurt. Their testimony included inconsistencies as to their respective positions. Brown stated Appellee was standing near him at about the center of the float. Appellee’s testimony placed Appellee near the rear of the trailer. Fontenot testified he recalled Ap-pellee at the rear of the truck facing the ends of the drill collars. Fontenot believed the drill collars were not flat on the truck bed but were resting in a slanted position on a pipe rack at the front of the float. Additionally, Brown and Fontenot gave varying accounts of the manner in which Appellee attempted to hold back the collars.

D. L. Fontenot testified he did not see the accident but was told by Appellee that Ap-pellee had hurt his arm while unloading the pipe.

It is conceded that Appellee worked the remainder of the day but did not return to work the next morning.

Appellant suggests the accident could not have happened as related by James Fonten-ot who placed Appellee at the rear of the truck facing the ends of the drill collars. In such a position, it is contended, Appellee could not have extended his arm to support the pipe to keep it from rolling onto Brown. Appellant also suggests it would have been foolish and useless for Appellee to attempt to stop the pipe from rolling by thrusting out his arm because such a gesture could not have delayed the descent of such a heavy load even for a fraction of a second. It is Appellant’s position that Appellee fabricated the accident to take advantage of a shoulder injury previously sustained in a fall at Appellee’s home. Additionally, Appellant maintains that Brown and James Fontenot had no personal knowledge of the incident except what Appellee told them. The record does not support this claim. Brown and James Fontenot testified from personal knowledge, not what Appellee allegedly told them. While their testimony was in some degree conflicting with that of each other and Appellee as well, this circumstance in itself would indicate they had not been couched by Appellee as inferred by Appellant. We note also that trial was held long after the accident. Under such circumstances, it is to be expected that recollections of witnesses may be somewhat confused. Had Appellee fabricated the accident, it would appear he could also have had D. L. Fontenot testify as to actually seeing the incident.

The trial court found the accident did occur; that Ralph Derrick’s negligence in prematurely releasing the chains was the cause thereof; and that Ralph Derrick was at the time acting within the scope and during the course of his employment by Flash. These factual determinations are entitled to great weight and are not to be disturbed on appeal except for a showing of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Reasonable evaluations of credibility and reasonable inferences of fact made by a trial court should not be disturbed on appeal, even though the appellate court may feel its own, but different, evaluations and inferences are as reasonable. Canter, above. See also Billiot v. Bourg, 338 So.2d 1148 (La.1976).

The day following the accident, Appellee was seen by Dr. Charles J. Aswell, Appel-lee’s family physician since 1955. Appellee related having injured his right shoulder on some sort of drill collar while at work. Dr. Aswell diagnosed the condition as tear or damage of the ligaments of the right shoulder and hospitalized Appellee from April 17 to April 23, 1966, and continued treatment of Appellee until October, 1966. He continuously prescribed muscle relaxants and pain medication. Dr. Aswell considered Appel-lee totally and permanently disabled to do oil field work. He referred Appellee to Dr. Robert L. Bordelon.

On April 30,1966, Dr. Robert L. Bordelon saw Appellee for the first time. He also saw Appellee May 5 and September 19, 1966, February 10, 1967, and March 20, 1969. On the second visit, Dr. Bordelon suspected that Appellee had a torn rotator cuff of the right shoulder. He deemed the condition serious and felt it would take six months to a year to heal. He was also of the view that surgical intervention might be required eventually.

Appellee was seen by Dr. J. Hugh Larri-viere on February 3,1967, July 31,1967 and March 28, 1969. He recommended conservative treatment for what he considered a dislocated shoulder. He deemed Appellee totally disabled due to pain, numbness in the right arm and shoulder and weakness of grip in the right hand. On Appellee’s last visit he found no improvement in Appellee’s condition over that noted in the initial visit.

Appellee was seen by Dr. John D. Jackson June 13, 1966, July 14, 1966, January 25, 1968, and May 9, 1969. He considered Ap-pellee disabled due to the shoulder injury and felt this condition would continue unless surgery was performed to repair the damaged member.

On October 12, 1970, Appellee was first seen by Dr. George P. Schneider who recorded a history of injury to Appellee’s shoulder in an accident while Appellee was unloading drill collars at work. Dr. Schneider found Appellee unable to work at that time. On October 30, 1970, Dr. Schneider performed surgery intended to prevent Appellee’s shoulder from slipping out of socket, as it had done on numerous occasions. Dr. Schneider believed Appellee might return to work in six months after surgery, but acknowledged that such patients usually experience a 20% to 25% disability because of limitation of rotation and abduction, which is an expected residual of such surgery.

Appellee’s testimony at the first trial date indicated he had been in general good health prior to the accident and had lost little time from work due to illness or accident. He admitted one or more industrial accidents from which no serious injury resulted. He also acknowledged having been involved in prior automobile accidents which caused no appreciable injury. On the second trial date, Appellee acknowledged an operation for thrombophlebitis, which disabled him for five or six weeks.

V.A. records introduced by Appellant show the following: (1) Appellee sustained a severe head injury in an automobile accident which antedated subject accident; (2) Appellee applied for a pension in 1946, shortly after his discharge from military service, predicated on a service connected elbow injury; (3) In a stay from September 27 to September 30,1965, Appellee reported being unemployed since February, 1965, due to swelling in his legs; (4) Hospitalization August 31 through September 7, 1967, for swelling in the legs and thrombophlebitis and a history of blood clots for 12 years, together with surgery consisting of vein ligation and stripping; (5) On admission September 29,1965, Appellee gave a history of varicose veins and weakness in the legs; (6) Hospitalization April 13 through April 22, 1968, with Appellee giving a history of veinous ligation and stripping of both legs in about 1958, and subsequent frequent episodes of inflammation of the legs necessitating bed rest; and (7) Hospitalization April 29, 1968, on which occasion Appellee related the same history given the previous week and was again treated for swelling and pain in both legs.

Confronted with these records, Appellee responded that he did not recall most of these incidents but did not deny they may have occurred. He explained his failure to mention these episodes by stating he did not recall them. He also stated he gave the Y.A. a history of a.n unrelated work injury to his shoulder because he could not afford private hospitalization and feared he would be denied V.A. treatment for illness or injury related to his work. He also explained that he attempted to obtain a pension for a service connected disability due to an elbow injury sustained in service.

On reconstruction of the third trial day, Appellant attempted to introduce additional V.A. records sent to him by the V.A. after the third trial day. The trial judge disallowed introduction on the ground the records did not form part of the trial day being reconstructed. The trial court did, however, allow their introduction under proffer and also permitted Appellee’s cross-examination with respect thereto. The testimony should have been allowed by the trial court since it was admissible for impeachment purposes. For reasons hereinafter indicated, however, we find the trial court’s rejection of this evidence to be harmless error.

The trial court already had before it numerous V.A. records containing contradictory statements by Appellee regarding his general health prior and subsequent to subject accident and also concerning the origin of his shoulder injury. Despite said evidence, the trial court found that Appellee sustained disabling injuries as a result of the accident. Such a finding is clearly justified by the medical evidence. Undoubtedly the trial court reasoned that notwithstanding Appellee’s illnesses unrelated to the accident, Appellee had been' able to maintain a reasonable work schedule prior to the accident. When Appellant offered the rejected evidence, Appellant’s case of impeachment had already been made; the proffered evidence was cumulative only. The trial court considered the impeachment evidence allowed to be introduced and accepted Appellee’s testimony nevertheless.

Appellant contends the trial court’s evaluation of Appellee’s testimony is unreasonable in view of the record and for this reason, under the manifest error rule, the trial court’s decision should be reversed. Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App.3d Cir. 1974), and other authorities cited. We agree the rule is applicable under proper circumstances. The facts, however, do not warrant its application in this instance.

We find no basis for declaring the trial court’s determinations unreasonable in view of the record before us. Nor do we find the trial court’s acceptance of Appellee’s testimony to be unreasonable despite impeachment of Appellee’s veracity. The trial court is the judge of credibility based on the entire record, not impeachment evidence alone.

An award of damages for personal injuries lies within the sound discretion of the trial court and is not to be disturbed on appeal save on a showing of abuse of the much discretion vested in the trial court in such matters. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); La.C.C. Article 1934(3). Finding no such abuse in this instance, the award must stand.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    Hudson THOMAS, Administrator of the Succession of Emma T. Jackson v. Johnnie A. JONES.
    No. 11566.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.

      John Williams, Baton Rouge, of counsel, for plaintiff-appellee, Hudson Thomas, Administrator of the Succession of Mrs. Emma T. Jackson.
    Johnnie A. Jones, pro se.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant (Appellant) appeals from judgment rendered against him on a written agreement changing the method of payment of a promissory note and providing for interest not included in the note. The trial court found that forbearance of the holder to institute suit thereon after maturity was sufficient consideration for the new agreement. We affirm.

The note was executed May 29, 1961, payable to Emma T. Jackson, now deceased (Decedent), represented herein by the Administrator of her estate, in the sum of $9,826.50, payable two years after date, bearing no interest, and providing for 10% attorney’s fees in the event the note was sued upon for collection.

At maturity on May 29, 1963, Appellant did not pay the note. On June 28, 1965, Appellant still having made no payment whatsoever, a written agreement was con-fected between Decedent and Appellant, wherein Appellant waived prescription, admitted having made no payment and agreed to pay the amount due, with interest at 5% from May 29, 1961, in weekly payments of $25.00, payment to be credited first to interest due.

Between June 28,1965 and September 27, 1972, Appellant made approximately 60 payments, not in weekly order, varying in amount from $25.00 to $1,225.00. On January 23,1975, the Administrator filed suit on the note and agreement, Appellant having made no payment since September 27,1972.

Appellant defends the action on the ground that the agreement of June 28,1965 is unenforceable for lack of consideration because his promise to pay what he was already bound to pay does not constitute consideration for a new agreement. Appellant also maintains the obligation is prescribed pursuant to the 5 year prescriptive period provided by La.C.C. Article 3540. Lastly, Appellant maintains he did not agree to pay interest from the date of the original note, but only from June 28, 1965, and that he signed the agreement without reading it, under the mistaken impression it called for interest only from June 28, 1965. Appellant has not, however, alleged fraud.

The record establishes conclusively that the June 28, 1965 agreement, which incorporated the original note in full, was con-fected because the note was long past due, totally unpaid, and Decedent was threatening to file suit thereon. It also establishes that Appellant was unable to pay the note and the new agreement was entered into in consideration of Decedent forbearing to sue to reduce her claim to judgment.

We find as fact that Appellant thor- „ oughly understood the content of the agreement which he personally signed and dated. We also find that Appellant voluntarily signed the agreement and that he was not deceived or misled in any manner.

Appellant correctly argues that an agreement to do what one is already bound to do is not cause for an agreement to do the same thing. Lee v. National Cylinder Gas Company, 58 So.2d 568 (La.App. Orleans, 1952). This rule, however, is inapplicable herein because the agreement of June 28, 1965 was a new contract, obligating Appellant to pay in weekly installments instead of a lump sum and also obligating him to pay interest which he was not previously bound to pay. Appellant agreed to different obligations, not the same as those initially incurred.

Forbearance to exercise or pursue a legal remedy to which one is entitled is sufficient cause to support the promise of another party who may be adversely affected by the enforcement of the remedy. Benner v. Van Norden, 27 La.Ann. 473 (1875); See also 17 C.J.S. Contracts §§ 103-109; Note, 13 La.L.Rev. 603 (1953).

Under the circumstances of this case, the premature waiver of prescription by Appellant is of no moment. A promissory note prescribes five years after its due date. La.C.C. Article 3540; Industrial Loan Co. of Monroe v. Noe, 183 So. 175 (La.App. 2d Cir. 1938).

Payment on a note interrupts prescription; consequently, prescription does not accrue until the lapse of five years after the last payment thereon. Cambre v. Gerald, 246 So.2d 73 (La.App. 4th Cir. 1971); Collin v. Gill, 216 So.2d 620 (La.App. 4th Cir. 1968).

In this instance the note matured May 29, 1963. Appellant began making payments thereon on July 7, 1965, well within five years of due date. Appellant made payments in 1965, 1966, 1967, 1968, and 1969. He also made payments on April 15, 1970, March 12,1971, and September 27, 1972. Each payment interrupted prescription. There was no five year period intervening between payments. Suit was instituted within five years of the last payment and was therefore timely.

The judgment is affirmed at Appellant’s cost.

Affirmed.


author: LANDRY, Judge. SARTAIN, Judge,

text:
    Louis MASON v. Howard NORTON.
    No. 11567.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Granted Feb. 9, 1978.
    C. Alvin Tyler, Baton Rouge, of counsel for plaintiff-appellant, Louis Mason.

      Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment dismissing the action against defendant (Appellee) for penalties and attorney’s fees claimed pursuant to La.R.S. 23:631 and 23:632, which require payment of wages of a resigned or discharged employee within 24 hours of demand after resignation or discharge. The trial court held that Appellant does not fall within the ambit of the statute because Appellant’s employment was by the hour, not by the day, week or month as required.

Appellee is a painting contractor who hired Appellant as a painter at an hourly rate. Appellant was discharged and made demand for $438.00 due in unpaid wages. Appellant then filed this action claiming the unpaid wages, together with penalties and attorney’s fees. Judgment was rendered in favor of Appellant for the amount claimed but his demand for penalties and attorney’s fees was dismissed. Ap-pellee answered Appellant’s appeal but Ap-pellee has failed either to file a brief before this court or to be present at oral argument. Accordingly, the answer to the appeal is deemed abandoned. Uniform Rules Courts of Appeal, Rule VII, Section 5(b).

The operative facts relative to the issues of penalties and attorney’s fees are undisputed. Prior to July 10, 1976, Appellant was employed at an initial wage of $4.00 per hour, which was increased to $5.00 per hour on an undisclosed date. On July 10, 1976, Appellant’s pay was increased to $6.50 per hour and continued at that rate until July 22, 1976, when Appellant was discharged while being owed unpaid wages in the sum of $438.00. Although he was employed at an hourly rate, Appellant was paid each Friday for the number of hours worked during the week. The contract contemplated a normal work week of 40 hours —5 days, 8 hours each day. Appellant, however, did not work 40 hours each week. Due to illness (arthritis), weather conditions and availability of work, some weeks he worked less than 40 hours. Other times, however, he worked more than 40 hours a week when Appellee’s work requirements demanded overtime. Although Appellee generally paid his employees each Friday, occasionally pay day was delayed until the following Monday or Tuesday when Appel-lee was not timely paid by owners or contractors.

La.R.S. 23:631 and 23:632 provide:

§ 631.
“It shall be the duty of every person, employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment whether the employment is by the day, week or month, upon demand being made upon the employer by the discharged or resigned laborer or employee at the place where the employee or laborer is usually paid.”
§ 632.
“Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety day’s wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorneys’ fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in th.e event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after twenty-four hours shall have elapsed from time of making the first demand following discharge or resignation.”

Statutes which are penal in nature must be strictly construed. This rule of construction applies to La. 23:631 and 23:632. Pittman v. Eyrand, 290 So.2d 800 (La.App. 4th Cir. 1974); Walter v. Clark, 143 So.2d 113 (La.App. 2d Cir. 1962).

Some conflict appears in the jurisprudence concerning whether Sections 631 and 632, above, apply to employees whose wages are set on an hourly basis but who are paid weekly. The conflict is based on the interpretation accorded the phrase “the employment is by the day, week or month” appearing in Section 631, above. •

Gatti v. Southern Research Company, Inc., 271 So .2d 376 (La.App. 2d Cir. 1972) held that an investigator employed at an hourly rate for the duration of a case did not come within the purview of Sections 631 and 632, above, because he was not paid by the day, week or month.

Dunn v. Bessie F. Hiern School, Inc., 209 So.2d 538 (La.App. 4th Cir. 1968) held that a school teacher employed for a nine month term, at an annual salary of $4,800.00 payable on a 12 month basis, was not covered by Sections 631 and 632, above.

Gros v. LeBlanc, 304 So.2d 49 (La.App. 1st Cir. 1974) held that a welder employed at an hourly rate and who had worked one week on a pipe line construction project, was employed by the hour for an indefinite term and was not within the ambit of Sections 631 and 632, above.

On the other hand, Colbert v. Mike-Baker Brick Co., Inc., 326 So.2d 900 (La.App. 3d Cir. 1976) held the statute applicable to a truck driver employed at an hourly rate with a weekly pay period. The court reasoned that the weekly pay intervals constituted employment by the week.

Similarly, Tuberville v. Foster, 113 So.2d 805 (La.App. 1st Cir. 1959) applied the statute to an hourly wage earner. In Tuber-ville, the court awarded only attorney’s fees because the casual nature of the employment did not provide a basis for awarding “full wages” as provided by Section 632, above, prior to its amendment in 1964. Nevertheless, Tuberville made the award without considering or discussing the limiting provision of La.R.S. 23:631.

Act 422 of 1964, Amended Section 632, to provide a penalty of “ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages”.

The 1964 amendment of Section 632, above, reducing penalties from full wages from time of demand to time of tender or payment, to ninety days wages at daily rate, or full wages from demand until tender or payment, whichever is lesser, establishes a formula which does not admit of an accurate calculation of penalties for a laborer such as Appellant. Appellant was not employed at a daily rate. He was employed by the hour. The hours he worked each day varied because of his illness, overtime requirements and layoffs due to lack of work between the employer’s jobs.

As pointed out by Appellant, anomalous results accompany a strict application of the statute. For example, penalties and attorney’s fees are due an employee employed at a weekly salary of $120.00 but are denied an employee hired at a wage of $3.00 per hour and working a 40 hour week, thus earning $120.00 weekly. Similarly the statute does not encompass laborers or employees hired on a bi-weekly or semi-monthly basis. Admittedly, we see no apparent basis for the distinction. Nevertheless, the statute must be strictly construed; it cannot be enlarged or liberalized by the courts, laudable though its intent may be. It must be enforced strictly as it appears.

We respectfully disagree with the reasoning in Tuberville and Colbert, above. We consider a strict interpretation of the term “employment by the day, week or month” to mean employment where wages or salary is based on a daily, weekly or monthly sum without any reference whatever to pay periods or pay intervals. An employee who is paid by the hour for whatever hours he works, even though paid each week, does not fall within the scope of the statute.

The inequity that exists between employees paid by the hour and those included in the statute is a matter which addresses itself to the sound discretion of the legislature.

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

Affirmed.

SARTAIN, Judge,

concurring.

I concur in the result reached by the majority. However, I do so for different reasons. As noted above, the majority has held that inasmuch as R.S. 23:631 and 632 are penal in nature, they are to be strictly construed and only those workers whose “employment is by the day, week or month,” fall within the purview of the subject statutes. I would have denied plaintiff’s recovery on the grounds that a justifiable dispute existed as to the amount of wages due him. The record reflects that a portion of the disputed wages centered around the amount of cash plaintiff received from a check drawn to the joint order of the parties and endorsed by each. Plaintiff contended that he only received $200.00 of the $350.00 and that the balance of $150.00 was given to another person. Further, plaintiff had on several previous occasions borrowed small amounts of cash from the defendant as an advance against future wages. Our courts have declined to impose the penalty provisions of the statutes where the employer had reasonable grounds to withhold the wages. Becker v. Choate, 204 So.2d 680 (La.App. 3rd Cir. 1967) and Colbert v. Mike-Baker Brick Co. of New Iberia, 326 So.2d 900 (La.App. 3rd Cir. 1976).

I do not subscribe to the blanket assertion that all workers hired by the hour, bi-weekly or semi-monthly are excluded from the provision of the statutes. Rather, I respectfully submit that the true test should be based on the arbitrary and capricious conduct of the employer in refusing to pay the wages due his former employee. Thus, where an employee has at the direction of his employer worked a designated number of hours at an agreed hourly rate, he should be afforded the same protection as those employees who work by the “day, week or month.” For a similar view, see the dissent in Gros v. LeBlanc, 304 So.2d 49 (La.App. 1st Cir. 1974).


text:
    SOUTHERN STATES MASONRY COMPANY, INC. v. MISSION INSURANCE COMPANY.
    No. 11568.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.

      Lee C. Kantrow, Baton Rouge, of counsel, for plaintiff-appellant, Southern States Masonry Co., Inc.
    Robert Vandaworker, Baton Rouge, of counsel, for defendant-appellee, Mission Ins. Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff-Appellant (Southern), sub-contractor on the project for construction of the new Our Lady of the Lake Hospital, Baton Rouge, Louisiana, appeals dismissal of his action against the builder’s risk insurer of the prime contractor and project owner, for the loss of fabricated materials intended for installation in the hospital project which were destroyed by natural forces while located on Appellant’s premises. The trial court rejected Appellant’s claim upon finding the goods were not “in transit” to the construction site and therefore not within the coverage provided by the policy issued by defendant Mission Insurance Company (Insurer). We affirm.

The essential facts are undisputed and stipulated. Southern Builders, Inc. (Contractor) is the general contractor for the hospital project being constructed for Our Lady of the Lake Hospital, Inc. (Owner). Appellant has a sub-contract with Contractor for the performance of certain brick and masonry work for the job. Pursuant to its sub-contract, Appellant assembled certain brick panels at Appellant’s place of business, off the hospital construction site, which panels were designed for incorporation in the hospital project. On or about May 8, 1975, while said assembled panels were on Appellant’s premises, they were destroyed by high winds. The panels were composed of materials ordered by Appellant for the specific work.

The policy in question, which names Our Lady of the Lake Hospital, Inc., Southern Builders, Inc., Department of Health, Education and Welfare of the United States, State Treasurer of the State of Michigan and Custodian of State Employees Retirement System Funds, A.T.I.W.A. as insureds, provides coverage as follows:

“8. PROPERTY COVERED:
Any and all materials, equipment, machinery and supplies of any nature whatsoever, to be used in or incidental to the fabrication and/or erection and/or completion of the project stated in Item F of Declarations, while in transit by land, air or water conveyance under and/or on deck from points and/or places in the 48 contiguous United States, the District of Columbia and/or Canada to the erection site as stated in Item F of Declarations, and while there awaiting and during erection and/or installation, subject to the limitations of Item C of Declarations. Also said property while in transit in the 48 contiguous United States, The District of Columbia and/or Canada prior to delivery to the erection site. In the event of loss or damage by perils insured under this policy, this insurance shall also pay the cost of removal of material and debris being an insured part of the property, including cost of removal or demolition of any portion of the insured property no longer useful for the purpose for which it was intended. This clause does not increase the limits of liability stated in Item D of Declarations attached hereto.”
“14. It is hereby understood and agreed that no claim for loss or damage during transit shall be payable hereunder until claim has been filed with the carrier and the carrier has either denied liability or until a reasonable time has elapsed during which the Insured has made efforts to secure payment or denial of liability on the part of the carrier.”

Appellant, although not a named insured under the policy, asserts its claim herein by virtue of an assignment from Contractor of all claims Contractor might have for the loss. Insurer contends Appellant has no right of action herein because Appellant is not a named insured. The trial court held that Section 8 provides coverage only: (1) while goods are in transit on a conveyance; (2) while at the erection site awaiting erection and/or installation; and, (3) while at the erection site during erection and/or installation. Finding no coverage, the trial concluded there was no need to consider Appellant’s alleged lack of right of action.

Appellant contends coverage under Paragraph 8, above, is twofold. First, it is argued that the first sentence of the paragraph affords coverage because it includes all materials, equipment, machinery and supplies to be used in or incidental to the fabrication and/or erection and/or completion of the project; (i) while in transit on conveyance to the erection site; (ii) while awaiting erection and/or installation at the erection site; and, (iii) during erection and/or installation. It is argued that the trial court erred as a matter of law in construing the first sentence of Paragraph 8 to limit coverage to materials in transit on conveyance and not to extend coverage to stopovers during transit because if Insurer intended to so limit its coverage Insurer could have done so by express provision and Insurer’s failure to do so must be construed favorably to the insured.

Appellant maintains next that the second sentence of Paragraph 8 indicates intent to insure materials destined for incorporation in the project, although temporarily out of transit on a conveyance because it provides coverage: “Also said property while in transit in the 48 contiguous United States, the District of Columbia and/or Canada, prior to delivery to the erection site.” Appellant suggests that since the second sentence must be deemed to serve some purpose and because it would be rendered otherwise meaningless and redundant, it can only mean that “in transit” as therein employed includes a type of transit other than that contemplated in the first sentence of the paragraph. According to Appellant, this added coverage becomes apparent when consideration is given the phrase “pri- or to delivery to the erection site”, which is not found in the first sentence. Therefore, Appellant urges, coverage of materials was intended from commencement of their journey from point of origin to the erection site.

Reliance is placed by Appellant on the definition of “transit” appearing in Black’s Law Dictionary, 4th edition, as follows:

“A stop-over privilege on a continuous journey granted by carrier by which a break de facto in continuity of carriage of goods is disregarded and two legs of a journey are treated as though covered without interruption, uniting both legs into a through route for which a joint rate can be published. Galveston Truck Line Corporation v. State, Tex.Civ.App., 123 S.W.2d 797, 802; Baltimore & O. R. Co. v. United States, D.C.N.Y., 24 F.Supp. 734, 735.”

In reaching its conclusion, the trial court relied on Webster’s New Collegiate Dictionary, G. and C. Merriam Co., (8th Edition, 1976), which defines “transit”, inter alia, as “the conveyance of persons or things from one place to another.” This according to the trial court indicated that transit implies movement in some manner.

Appellant contends, in substance, that “transit” includes a stopover in transportation of materials to an erection site and is not limited to actual movement on a conveyance.

An insurance policy is the law between the parties and it must be interpreted as written when its provisions are clear and unambiguous. Sylvest v. Employers Liability Assurance Corporation, 252 So.2d 693 (La.App. 1st Cir. 1971).

Where the terms of a policy are clear, the words employed are to be taken in their usual and ordinary sense. Atlas Lubricant Corporation v. Federal Insurance Co. of New Jersey, 293 So.2d 550 (La.App. 4th Cir. 1974).

The general rule that ambiguities in an insurance policy are to be construed favorably to the insured and adversely to the insurer is subject to the limitation that it will not be applied when its application will produce an unreasonable and absurd result. Donovan v. Nettles, 327 So.2d 433 (La.App. 4th Cir. 1976); Reichert v. Continental Insurance Company, 290 So.2d 730 (La.App. 1st Cir. 1974).

The issue presented appears res nova so far as our own jurisprudence is concerned. Similar policy coverages have, however, been interpreted in other jurisdictions. In Massachusetts, for example, a similar policy provision was held to contemplate transit in the form of movement by some means of carriage from one place to another. Whitehall Company, Ltd. v. New Hampshire Insurance Company, 361 Mass. 865, 281 N.E.2d 234 (1972). A Texas case, Simons v. Niagara Fire Insurance Company, 398 S.W.2d 833 (Tex.Civ.App.1966), held transit, in a similar policy, means activity, motion and direction and also means in the course of passing from one point to another and thus ordinarily implies goods being picked up at a particular place and conveyed to a designated destination.

Insofar as coverage is provided goods in transit within the coverage in question, we find the key words to be “in transit — to the erection site” appearing in both the first and second sentences of Paragraph 8, above. Granted some ambiguity results from the difference in verbiage of the first and second sentences of Paragraph 8, above, nevertheless, all policy provisions must be construed together to ascertain intent. From the whole, including Paragraph 14, which conditions payment of loss on prior submission of claim to the carrier, we conclude in transit coverage is limited to goods being conveyed from one point to the erection site.

We agree with the trial court’s conclusion that to extend in transit coverage to all deviations (stopovers) would expose Insurer to liability for losses experienced by all shippers, regardless of the risk increase resulting from the circumstances under which goods may be kept or stored on the shipper’s premises or other premises on which the shipper might decide to store goods awaiting further movement toward their destination. Nothing in the policy indicates intent on the part of the Insurer to assume such illimitable, unknown risks. To extend the policy to such hazards would, in our judgment, unreasonably increase coverage and reach a patently absurd result.

Having found the policy does not cover the loss claimed, it is unnecessary that we consider Insurer’s exception of no right of action.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    Judy BRADDY v. TRIANGLE TIMBER, INC.
    No. 11570.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 10, 1978.
    Charles B. W. Palmer, Amite, for Judy Braddy plaintiff-appellee.
    Henry A. Mentz, Jr., Hammond, for Triangle Timber defendant-appellant.
    Before LOTTINGER, EDWARDS, and PONDER, JJ.
   LOTTINGER, Judge.

This is a workmen’s compensation suit filed by Judy Braddy against Triangle Timber, Inc. (Triangle) and Harmon Hyde. From a judgment in favor of plaintiff and against Triangle Timber, Inc. awarding compensation at the rate of $65.00 per week for 500 weeks, subject to a credit of $1,015.00, both defendants have appealed

Plaintiff worked with her husband in an independent timber operation. They cut and transported timber owned by a Harmon Hyde, who in turn sold this timber to the defendant. On or about March 28, 1974, plaintiff, while working with her husband, slipped off the running board of their truck and hurt her left foot. Plaintiff notified Hyde of her accident, and he in turn notified Triangle.

Plaintiff was initially seen by Dr. Reginald Goldsby, a general practitioner, who initially treated the plaintiff conservatively by placing her foot in a cast for about five or six weeks. After the removal of the cast, Mrs. Braddy continued to complain of pain at which time Dr. Goldsby recommended that she consult Dr. Kenneth Cra-nor, an orthopedic surgeon. Dr. Cranor first saw Mrs. Braddy on July 19, 1974, at which time she was still complaining of pain in her left foot. After x-ray examination he diagnosed that she had an accessory tarsal navícula which had been made symptomatic by the sprain type injury she had sustained, and concluded that if a prescribed arch support as well as medicine did not control her symptoms, eventual surgery would be needed to remove the accessory navieula. She returned on July 30, with persistent pain, and surgery was performed on August 5 for the removal of the extra bone in her ankle. She was discharged from the hospital on August 7 and continued to see Dr. Cranor throughout September showing steady improvement to her foot. After an examination of the plaintiff on October 18, Dr. Cranor reported that she was released to return to her former employment at that time, though the mild amount of discomfort that she was then feeling on activity was expected to clear completely, and he did not anticipate any permanent anatomical physical impairment as a result of the accident. The doctor felt that the best treatment for her foot at this time was to exercise it by doing her regular activities.

In November of 1974 the plaintiff was involved in an automobile accident and she claims to be suffering pain to her back and neck as a result. Dr. Cranor next saw the plaintiff on December 12, 1974, at which time she again complained of persistent pain in the foot and informed the doctor that she was unable to resume her former employment without a great deal of discomfort. She described the discomfort as being in the region of the surgery. The doctor continued to prescribe activity as the best treatment for her foot. The doctor stated that there were no objective symptoms, and that all symptoms were subjective. Mrs. Braddy was last seen by Dr. Cranor on June 6, 1975, at which time he again concluded that she was able to return to work. Dr. Cranor further concluded that he could not discover any reason for the persistence of the symptoms, and that she should not by a period of perhaps 18 months from the time of the surgery have any symptomatology at all.

The plaintiff was also examined by Dr. Roger Blitz, an orthopedic surgeon, at the direction of the Trial Judge, on October 30, 1975. The conclusion of Dr. Blitz’s examination is that he could find no reason why the plaintiff could not return to her duties as a laborer at the time he examined her.

It is contended on appeal that the Trial Judge erred (1) in awarding Mrs. Braddy benefits for total and permanent disability, when same was not proved by medical testimony, (2) in not finding that there was no causal connection between the accident and her final complaints (3) in finding that the amount of her weekly earnings were proved with certainty (4) and in failing to consider the inconsistency in the plaintiff’s testimony as regards her two versions of the accident and the fact that she stated that she had not worked since the automobile accident, even though she had worked between the date Dr. Cranor discharged her in October and the date of the accident. o

ERROR NO. 1

In Hamilton v. Georgia Pacific Corp., 344 So.2d 400 (La.App. 1st Cir. 1977) we said:

“The law is clear that an employee may show total and permanent disability by proof of his inability to work except with substantial pain. However, the burden of proving that an injury has caused a total and permanent disability is on the claimant in every case. He must establish his claim to a legal certainty and by a reasonable preponderance of the evidence. Crooks v. Belden Corporation, 334 So.2d 725 (La.App. 3rd Cir. 1976); Alfred v. Travelers Insurance Co., 322 So.2d 872 (La.App. 3rd Cir. 1975).
“In deciding whether a claimant has proven his disability, the totality of the evidence, medical and lay, must be examined by the court. Tantillo v. Liberty Mutual Insurance Co., 315 So.2d 743 (La.1975).”

We have reviewed all of the testimony in this record, including the depositions of the two orthopedic surgeons that examined the plaintiff, and we are convinced that the Trial Judge was in error in giving more weight to the testimony of plaintiff and her husband than to the testimony of the treating orthopedic surgeon as well as the testimony of the orthopedic surgeon selected by the Trial Judge, wherein they both concluded that there was no reason plaintiff could not return to work as of the date that each last examined her. Considering that Dr. Blitz concluded as of October 30, 1975, some 19 months after the accident, that plaintiff was able to resume her normal activities, and Dr. Cranor concluded that she should have no pain after 18 months from surgery, which would be March of 1976, we find that the Trial Judge was in error in his award. Compensation will be awarded from the date of the accident through and including the last week of February, 1976, subject to a credit for compensation already paid.

ERROR NO. 2

Defendants contend that the plaintiff failed to prove any causal connection between the accident and her complaints at the time of trial. There is of course no question that there was an accident, and that the injury received by Mrs. Braddy to her ankle was a result of that accident. Considering that we have above concluded that the Trial Judge was in error in granting more weight to the testimony of plaintiff and her husband, rather than to the weight of the expert witnesses, in our conclusion as to the amount of workmen’s compensation to be awarded, we find there is no need for any further discussion of this assignment of error.

ERROR NO. 3

Defendants further contend that the plaintiff failed to prove within a certainty the amount of her weekly earnings. Checks were written to her husband weekly in varying amounts, and from this weekly income, normal operating expenses of their small independent business were deducted, and the net proceeds were then shared by this couple as a family unit. We agree of course that the proof tendered by plaintiff as to the amount of her weekly compensation is not the most exact proof that could have been developed, however, after a thorough review of the record, we are convinced that the Trial Judge was not in error in awarding the plaintiff workmen’s compensation at the rate of $65.00 per week.

ERROR NO. 4

Defendants-appellants next contend that Mrs. Braddy told two different versions of how the accident happened, i. e. a piece of wood fell on her foot or she slipped on the running board, that she consistently failed to report to the doctor for treatment and/or examination, and that she could be considered a possible malingerer were not considered by the Trial Judge, and further that there seems to be some discrepancy in her testimony as to whether she worked between the date that Dr. Cranor discharged her in October of 1974 and the date of the automobile accident in November of 1974. In reviewing in detail the testimony of all of the witnesses in this case, and in particular that of the plaintiff, we do not find that the Trial Judge committed any error at all in failing to take into consideration any inconsistency as referred to by defendant in plaintiff’s testimony.

ANSWER TO APPEAL

Appellee has answered the appeal contending the Trial Judge erred (1) in deleting Harmon Hyde as a solidary defendant and (2) in failing to award penalties and attorney’s fees for the defendants’ discontinuing compensation benefits.

Plaintiff cut and transported timber owned by Hyde, thus she was his employee. Collier v. Southern Casualty Insurance Company, 186 So.2d 161 (La.App. 3rd Cir. 1966), writ refused 249 La. 479, 187 So.2d 448 (1966). It was Hyde to whom plaintiff reported her accident, and it was through his office that she received compensation benefits. Therefore, we find that the Trial Judge was in error in dismissing the suit against Harmon Hyde.

As to the penalties and attorney’s fees, we find no error. The reliance on Dr. Cranor’s letter of October 18 was justification for the termination of compensation benefits. Appellees were neither arbitrary, capricious, nor without probable cause in making their determination based upon this competent medical report.

MOTION TO REMAND

Defendants-appellants have filed in this Court a motion to remand for the purpose of allowing the introduction of a deposition of Dr. Cranor reporting on a reexamination of the plaintiff which took place on April 22, 1977. Considering our disposition of this matter as regards our determination of the length of disability, the motion to remand is denied.

Therefore, for the above and foregoing reasons the judgment of the Trial Court insofar as it dismissed Harmon Hyde is reversed; it is amended so as to reduce the award of compensation from $65.00 per week for 500 weeks subject to a credit of $1,015.00 to an award of workmen’s compensation benefit at the rate of $65.00 per week for 101 weeks subject to a credit of $1,015.00; and plaintiff-appellee is to pay all costs of this appeal.

REVERSED, AMENDED AND RENDERED.

      . Though the judgment is only against Triangle, both Triangle and Hyde filed the motion for the appeal, and signed the appeal bond as principals.


author: SARTAIN, Judge.

text:
    EXXON CORPORATION, Plaintiff-Appellee, v. Joseph N. TRAIGLE, Collector of Revenue for the State of Louisiana, Defendant-Appellant.
    No. 11571.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.

      Roger M. Fritchie, Baton Rouge, of counsel for plaintiff-appellee Exxon Corp.
    Edwin M. Callaway, William Steven Man-near, Baton Rouge, of counsel for defendant-appellant Joseph N. Traigle, Collector of Revenue for the State of Louisiana and Secretary of Revenue and Taxation for State of Louisiana.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is a suit for a refund of state sales and services tax paid under protest by Exxon Corporation. The tax in question covers the period January 1, 1969 through December 31, 1971. During this period Exxon did not pay a services tax on the cost of repairs to numerous items of equipment and machinery located at Exxon’s refinery, Baton Rouge, Louisiana. When field personnel of the Collector of Revenue discovered this fact they assessed Exxon for a tax deficiency. Exxon paid the alleged deficiency and is now suing for a refund.

Plaintiff Exxon filed a motion for summary judgment with an attached affidavit in the trial court. The motion was granted and the Collector of Revenue is appealing the judgment rendered in plaintiff’s favor. The affiant who was the manager of the material’s department at Exxon’s refinery declared that the property to which the repairs in question were made was either part of Exxon’s operating units, part of Exxon’s mechanical equipment necessary to operate the complex, or stand-by and backup property held in storage and required to maintain the operating units and mechanical equipment in continuous operation. The Collector filed no countervailing affidavits or depositions. The trial court found on the basis of the affidavit that the property in question was immovable by destination. It also held that “tangible personal property” as used in the tax statute must be interpreted in light of Civil Code Property definitions since the tax statute nowhere defines “personal property.” Since the property was found to be immovable the tax could not be applied to its repair. Summary judgment was therefore granted. We affirm.

Appellant first alleges that the use of summary judgment was improper because the affidavit of Exxon’s materials department manager did not establish that no issue of material fact existed.

“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.” C.C.P. Art. 967, para. 2.

Since the Collector filed no countervailing affidavits or depositions, our duty is simply to determine if summary judgment was “appropriate.” Ip ¿rguing that there were issues of material fact extant despite the affidavit the Collector is apparently confusing questions of law with questions of fact. His view is apparently that under a correct interpretation of the law more facts would have been necessary to render judgment. He points to no facts necessary to render judgment on the view of the law taken by the trial judge. We will therefore first determine if the trial judge was correct in his interpretation of the law and his application to the undisputed facts. If his interpretation is correct his judgment is likewise correct. If we find that his view of the law is incorrect we must then apply the correct view to the facts and determine if they are still sufficient to sustain a judgment.

Sales of services are taxed by R.S. 47:302 C and 321 C. A list of those transactions constituting sales of services is given in R.S. 47:301(14). The type of transaction with which we are concerned is “the furnishing of repairs to tangible personal property, including by way of illustration and not of limitation, the repair and servicing of automobiles and other vehicles, electrical and mechanical appliances and equipment, watches, jewelry, refrigerators, radios, shoes, and office appliances and equipment.” R.S. 47:301(14)(g). An attempt is made at defining “tangible personal property” in R.S. 47:301(16). It succeeds only in defining “tangible” which is apparently synonymous with “corporeal.” C.C. Art. 460. In any event there is no dispute that all the property in question is “tangible.”

Our first question is what is meant by the phrase “tangible personal property.” Exxon asserts that because this terminology is unknown to Louisiana civil law its meaning should be ascertained by reference to the analogous civilian concept of corporeal movable property. The Collector argues instead that this could not be the intention of the legislature since the legislature is aware of all prior laws. The different wording must mean that a different test is to be used in property classification under the two laws. The Collector does not refer us to any criteria for use in defining personal property if civilian property law is not used. Apparently we could either use authorities from common law states, which have a concept of personal property, or develop our own body of law based on the “usual signification” of the term personal property. C.C. Art. 14.

Our task of discovering the legislative intent of the meaning of the term is made more difficult by the lack of legislative history on Louisiana sales tax. The first sales tax was adopted as Act 75 of 1936. The terminology “tangible personal property” was used therein and has been consistently used in all later reenactments of the sales tax.

In its use of this common law term we do not believe the legislature intended to import the common law into Louisiana for the purpose of sales tax law or to require the court to develop a new body of property law for the purpose of the sales tax. We find it more likely that the legislature desired that this undefined term be defined in accordance with the general property law of Louisiana. Other states use their general property law to explain their sales tax law. See Marsh v. Spradling, 537 S.W.2d 402 (Mo.1976). Therefore we find it only natural to assume that despite using common law terminology, the legislature intended that Louisiana property law be applied to give explanation to Louisiana tax law.

Although we have been unable to find any controlling eases directly holding that personal property as used in the sales tax law is the same as movable property as used in our property law, we are buttressed in our opinion by several authorities. In the definitions given in the ad valorem tax law personal property is treated as synonymous with movable property. R.S. 47:1702(3). The correlation of the two terms was first introduced into these definitions by Act 170, § 91 of 1898. The use of the terms as synonyms is not uncommon in Louisiana even today.

The Louisiana Supreme Court has also equated tangible personal property as used in a parish taxing ordinance with corporeal movable property as used in the Civil Code. St. John the Baptist Parish School Board v. Marbury-Pattillo Construction Co., 259 La. 1133, 254 So.2d 607 (1971). The Third Circuit has held to like effect in American Sign and Indicator Corp. v. City of Lake Charles, 320 So.2d 234 (La.App. 3d Cir. 1975). The case there involved the state sales tax as well as school board and city taxes using the same language. The court there equated tangible personal property to corporeal movable property and held that “sales tax is not levied on the sale or use of immovable property.”

Having determined that the trial judge was correct in holding tangible personal property to be a synonym of corporeal movable property, we must determine the classification of the property in question under the general property law. There are three types of property in question — operating units, mechanical equipment necessary to operate the complex, and back-up equipment held in storage. The Collector has conceded that if general property law is applied the operating units which are permanently attached to the ground or to buildings on the land are immovables. We therefore need only consider the equipment which is not attached permanently but is instead used to operate the refinery or is stored in the refinery for future use there.

We believe that both of these types of property fit within the test of being for the “service and improvement [exploitation]” of an industrial establishment. C.C. Art. 468; Straus v. City of New Orleans, 166 La. 1035, 118 So. 125 (1928). Equipment used to carry out manufacturing is certainly immovable. Rochereau v. Bobb, 27 La. Ann. 657 (1875); see also, Yiannopoulos, Civil Law of Property, § 52 (1966) and cases cited therein. We find no basis for distinguishing property which is presently being operated at the refinery from that kept in storage for future use. It is necessary to maintain back-up equipment in this fashion in order to have continuous operation, according to the uncontroverted affidavit of Exxon’s manager. The wording of Art. 468 is certainly broad enough to include such back-up property. Absent a reason for not including such property, we find that it is immovable by destination.

The Collector argues that even if the property was immobilized it became de-im-mobilized when it was removed from service and sent for repair. This is incorrect. An occasional removal of a thing that has become immovable by destination does not affect its status. Lafleur v. Sylvester, 135 So.2d 91 (La.App. 3d Cir. 1961) (use of manure spreader off farm). Analogous application of Art. 476 of the Civil Code gives this same result. That article states that materials taken from a building which are to be repaired with the intention of replacing them do not lose their status as immov-ables. The same rule should apply to machinery which is immovable by destination.

We therefore find the trial judge was correct in his view of the law. Property law was correctly applied to find that Exxon’s property was immovable.

For the reasons assigned, the judgment is affirmed, defendant to pay such costs as authorized by law.

AFFIRMED.

      . The stand-by and back-up property referred to in this opinion are parts of machinery that have been removed for repairs and after repairs are either reattached to the main unit or placed in storage for future use.

      . “C. There is hereby levied a tax upon all sales of services, as herein defined, in this State, at the rate of two per centum (2%) of the amounts paid or charged for such services.
      The tax levied in this Section shall be collected from the dealer, as defined herein, shall be paid at the time and in the manner hereinafter provided, and shall be, in addition to all other taxes, whether levied in the form of excise, license, or privilege taxes, and shall be in addition to taxes levied under the provisions of Chapter 3 of Subtitle II of this Title.”

      . “C. In addition to the tax levied on sales of services by R.S. 47:302 C and collected under the provisions of Chapter 2 of Title 47, there is hereby levied a tax upon all sales of services, as defined by said Chapter 2 of Title 47 in this state, at the rate of one percentum of the amounts paid or charged for such services.”

      .“(16) ‘Tangible personal property’ means and includes personal property which may be seen, weighed, measured, felt or touched, or is in any other manner perceptible to the senses. The term ‘tangible personal property’ shall not include stocks, bonds, notes, or other obligations or securities.”

      .“(3) ‘Personal property’ or ‘movable property’ means and includes all things other than real estate which have any pecuniary value, all moneys, credits, investments in bonds, stocks, franchises, shares in joint stock companies or otherwise, rights to cut and remove or use standing trees or timber from the land of another whether the time to do so be limited or not, all standing timber or trees owned by any person other than the owner of the land upon which it or they stand, all cases where the ownership of standing trees or timber, or the right to cut and use standing trees or timber is in any person other than the owner of the land upon which the trees or timber stand; the trees or timber or the right to cut and use the same as the case may be shall be assessed to the owner of such right of trees or timber for taxation in the parish where the trees or timber is situated.”

      . See Note 1, supra.

      . Ibid.

      . “Art. 468. Things which the owner of a tract of land has placed upon it for its service and improvement are immovable by destination.
      Thus the following things are immovable by destination when they have been placed by the owner for the service and improvement of a tract of land, to wit:
      * * * * * *
      The utensils necessary for working cotton, and sawmills, taffia distilleries, sugar refineries and other manufactures.”
      ******

      . See Note 1, supra.

      . Ibid.

      . Ibid.

      . “Art. 476. Materials arising from the demolition of a building, those which are collected for the purpose of raising a new building, are movables, until they have been made use of in raising a new building.
      But if the materials have been separated from the house or other edifice, only for the purpose of having it repaired or added to, and with the intention of replacing them, they preserve the nature of immovables, and are considered as such.


text:
    Lawrence PERRY, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, DRIVER’S LICENSE DIVISION, Defendant-Appellee.
    No. 11574.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.

      C. Alvin Tyler, Baton Rouge, of counsel for plaintiff-appellant, Lawrence Perry.
    Foye L. Lowe, Jr., Baton Rouge, of counsel for defendant-appellee, State of Louisiana, Dept, of Public Safety, Driver’s License Div.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff’s driver’s license was revoked by the Louisiana Department of Public Safety. He brought this action to be granted restricted driving privileges pursuant to R.S. 32:415.1. The lower court rejected his demands in a well reasoned opinion which we adopt:

“Petitioner has sought to have granted restricted driving privileges under the provisions of LSA-R.S. 32:415.1. This statute provides that a person whose driver’s license has been revoked for the first time as provided for under LSA-R.S. 32:414(B), (C), (D), (E) and LSA-R.S. 32:415 may apply for restricted driving privileges based on a showing of economic hardship upon himself and/or his family because of the suspension.
“LSA-R.S. [32:] 415.1 provides that this restricted driving privilege be applicable to the suspension ‘for the first time only.’ Petitioner was convicted on July 28, 1969, for a DWI offense which was committed on January 1, 1967. He was convicted on November 21, 1971, for a DWI offense which was committed one month after the first offense, on February 19,1967. For this DWI conviction his license was suspended for the first time. On June 13, 1973, petitioner was convicted of a DWI offense which was committed on July 31, 1970. For this offense his driver’s license was suspended for a second time. On September 4,1975, petitioner was convicted of the offense of driving while his license was under revocation, which offense occurred on June 8, 1975. This second and last suspension is the one which petitioner has sought to have reviewed under the provisions of LSA-R.S. 32:415.1. Petitioner contends that since his last DWI offense was committed more than five years ago, none of these convictions are relevant to his current suspension and that this last suspension should be considered as his first suspension.
“Petitioner is referring to the provision of LSA-R.S. [14:] 98(F) which provides for penalties for successive convictions of operating a vehicle while intoxicated. It is to be noted that this article does not provide that successive convictions for DWI are different crimes. It provides that offenses more than five years before the offense being considered will not be considered in assessing the penalties against the defendant.
“LSA-R.S. 32:414(B)(2), under which provisions the petitioner’s license is currently under suspension, provides that for ‘the second subsequent offense’ of DWI, the offender’s license shall be suspended for a period of twelve months.
“Nowhere does LSA-R.S. 14:98(F) say that a DWI offense more than five years previous to another one is not a DWI offense nor that it will not be considered as a second subsequent offense. It simply provides that in the assessment of penalties, an offense more than 5 years previous will not be considered.
“A reading of LSA-R.S. 32:415.1 in conjunction with LSA-R.S. 14:98(F) clearly shows the fallacy of petitioner’s argument. LSA-R.S. 32:415.1 is applicable only to the first suspension of driving privileges. LSA-R.S. 14:98(F) is applicable only to the criminal penalties to be assessed for convictions of DWI. Petitioner’s license has been under suspension twice. The provisions for DWI penalties of LSA-R.S. 14:98(F) were never intended to be applied to the suspension provisions of LSA-R.S. 32:415.1.”

On appeal plaintiff also makes a second contention. He argues that under R.S. 32:415.1(A)(2) he can get a restricted license even though this is not the first time his license was revoked. This paragraph reads:

“Notwithstanding the provisions of Paragraph (1) of this Subsection, any person whose license is suspended, revoked, or cancelled shall have the right to file an application for a restricted license on the grounds of economic necessity within ninety days after the effective date of this Section.”

Paragraph 1 requires that for a restricted license to be given it must be the driver’s first suspension. It would seem that Paragraph 2 does away with this requirement if suit is brought within the ninety days. However, such an anomalous result has already been rejected by this court. Jackson v. State of Louisiana, Department of Public Safety, Driver’s License Division, 349 So.2d 1319 (La.App. 1st Cir. 1977). We there stated:

“ ‘After considering the intent of the entire Act, we conclude that Subsection (A)(2) is what is commonly referred to as a “grandfather clause”. Subsection (A)(1) grants a hardship privilege to persons whose licenses were revoked the first time, but only if they apply therefor within thirty days after their initial notification of the revocation by the Department. Subsection (A)(2) was obviously included in the Act to insure that first revokees whose licenses were revoked pri- or to the enactment of the Act would have the same right as those whose licenses were revoked subsequent thereto.
“ ‘To adopt plaintiff’s interpretation and declare that Subsection (A)(2) grants a right to a hardship license regardless of the number of revocations would be an unwarranted broadening of the clear intent of Subsection (A)(1).’ ”

We recognize that the decision of the Second Circuit in Atkins v. Department of Public Safety, 348 So.2d 1003 (La.App. 2d Cir. 1977) is contrary to Jackson. However, after careful consideration, we reaffirm our holding in Jackson.

For the reasons assigned, we affirm the judgment at appellant’s cost.

AFFIRMED.


author: BLANCHE, Judge.

text:
    BADON’S EMPLOYMENT, INC. v. Dean R. SMITH.
    No. 11579.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Granted Feb. 17, 1978.

      D. Rex English, Baton Rouge, of counsel, for plaintiff-appellee Badon’s Employment, Inc.
    Boris F. Navratil, Baton Rouge, of counsel, for defendant-appellant Dean R. Smith.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Defendant, Dean R. Smith, contracted with plaintiff, Badon’s Employment, Inc., to obtain their professional services in securing employment for him. Thereafter, he was called by the agency and directed to Dow Chemical Company in Plaquemine, Louisiana, to be interviewed for a job. Before going to Dow, he was directed to stop by the agency and sign a referral slip. This “Referral Acceptance” stated that Smith was being referred for “an interview with Dow Chemical Company for the purpose of negotiation and procuring employment.” The Referral Acceptance also obligated Smith to pay the employment fee agreed upon should he accept a position with the company within six months. Smith went to Dow but was not interviewed. However, he did fill out an application and was subsequently interviewed and employed as a lab technician. After his employment, he learned from his employer that the agency had not arranged his interview because Dow did their own hiring and did not use the services of an employment agency. Smith then refused to pay the employment agency’s fee because he considered that they had done nothing to obtain his employment. This suit for collection of the agency’s fee followed.

The trial judge found that the agency was “the procuring cause” of Smith’s employment and rendered judgment against Smith in the sum of $891.00 for their fee, plus 25 percent as attorney’s fees. From the foregoing judgment, Smith has perfected this appeal. We affirm.

The trial judge correctly found that the agency’s efforts resulted in Smith’s employment with Dow. Albeit the agency had no specific order from Dow, their employee found out that Dow would be hiring; and with this information which she had purposefully secured, she called Smith and directed him to Dow. It is a fact that Smith would not have been employed except for the efforts of the agency’s employee. This, we believe, complies with the contractual provision that obligated Smith to pay a fee if his employment resulted either directly or indirectly through their professional services.

It is argued that the contract between Smith -and the agency, taken as a whole, contemplates more than a mere referral by the agency to make application to an employer from whom they had no order of employment. We agree that the contract supports the interpretation that the agency would arrange for specific interviews for their clients with employers from whom they had an order or request for employment. It also contemplates that they would seek employment for Smith with employers who were looking specifically for a man with his qualifications. Likewise, we believe it contemplates the agency’s advising Smith of employment leads with employers from whom they had no specific order or request for employment. We, therefore, reject the defendant’s argument that the agency did not fulfill its obligations under the contract entered into with Smith.

Lastly, it is argued, and correctly so, that the agency violated the proscription of LSA-R.S. 23:118(6) and is, therefore, not entitled to its fee. That section provides:

“An employment agency shall not engage in any of the following activities or conduct:
* * * * sk *
“(6) Direct an applicant to an employer for the purpose of obtaining employment without having first obtained a bona fide order therefor; however, a qualified applicant may be directed to an employer who has previously requested that he regularly be accorded interviews with applicants of certain qualifications. Likewise an employment agency may attempt to sell the services of an applicant to an employer from whom no order has been received as long as this fact is told to the applicant before he is directed to the employer.”

We have searched the statutes and find that there is no such penal provision as contended by defendant to authorize our holding that the penalty for a violation of the statute would result in forfeiture of the fee. We have, however, noted that LSA-R.S. 23:113 provides that for any violation or failure to comply with any of the provisions of the statute, the commissioner of labor and/or the council, if so delegated by him, may levy a fine against such agency or suspend the license for a period of not more than one year or revoke the license. Accordingly, no private remedy is available to defendant by virtue of conduct proscribed by the statute.

For the above and foregoing reasons, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.