author: LANDRY, Judge.

text:
    Constant PITRE, Individually and on behalf of the minor, Danny Pitre v. James E. SKAINS et al.
    No. 11132.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Maurice J. Serpas and Christopher M. Smith, Galliano, for plaintiff and appellant.
    Edmund W. Golden, Wiedemann & Fran-sen, New Orleans, for James E. Skains, Bituminous Casualty Corp. and J. & W. Enterprises, Inc., defendant and appellees.
    Charles W. Schmidt, III, Christovich & Kearney, New Orleans, for Continental Ins. Co., defendant and appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

This appeal by Constant Pitre (Appellant), is from judgment rejecting his demands in tort, for damages for personal injuries to his minor son, Danny Pitre, against the owner, driver and insurer of a truck which collided head on with a vehicle belonging to Appellant, which vehicle was being driven by Appellant’s daughter, Clara Pitre, and in which Danny Pitre was riding as guest passenger. Appellant also sued his own insurer against whom he obtained judgment upon the trial court finding Miss Pitre solely at fault. We affirm.

The Pitre vehicle, a 1974 Ford Pinto, was insured by Continental Insurance Company (Continental). The truck a 1968 International flatbed, was owned by J & W Enterprises, Inc., insured by Bituminous Casualty Corporation (Bituminous), and being driven by J. E. Skains, President of owner corporation.

Subject accident occurred at about 3:00 P.M., October 4, 1974, on Louisiana Highway 1, a paved, two-lane, north-south roadway, approximately four-tenths of a mile south of the junction of said highway and Louisiana Highway 24, near LaRose, Louisiana. The weather was clear and the highway dry. Skains was traveling northerly in the truck which, though empty, weighed a total of 22,000 pounds, including the weight of a brick loading apparatus installed thereon. The truck, although a single unit, had two front wheels and eight rear wheels. Skains was accompanied by his employee-helper, Billy Bourgeois. Miss Pitre was traveling southerly, her younger brother occupying the right side of the front seat of her vehicle. Skains was driving about 45-50 miles per hour; Miss Pitre was proceeding at approximately 45 miles per hour.

The collision occurred in or near the south end of a moderate curve to the west, left for a northbound driver, right to a southbound motorist. The right front of the Skains truck struck the right front of the Pinto at a point one foot inside the center-line in the southbound lane, that is, one foot west of the centerline.

Two suits resulted from the accident. Appellant sued Continental, Skains, J & W, and Bituminous. Skains and J & W sued Miss Pitre and Continental. The actions were consolidated for trial. Appellant obtained judgment individually for $4,805.95, and on behalf of his minor son for $20,000 against Continental. Skains and J & W were awarded judgment against Miss Pitre and Continental. Appellant settled with Continental for $12,000, the limits of said insurer’s liability, with full reservation of his rights against all other defendants. This present appeal presents only the question of the liability of Skains, J & W, and Bituminous to Mr. Pitre and his minor son. Neither Miss Pitre nor Continental have appealed the judgments against them in favor of Skains and J & W.

Miss Pitre testified she was proceeding southerly in her proper lane of travel, at about 45 miles per hour, after having stopped at a local bakery to purchase a birthday cake for her guest passenger brother. She could not recall in'which lane she was traveling immediately before the accident or when she entered the curve or while traversing the curve. Within an instant or two prior to the impact, she observed the oncoming truck at which time she applied her brakes and veered to her right. She could not state in which lane she was traveling when she attempted these evasive maneuvers. She attributed her inability to recall further details to amnesia resulting from head injuries she sustained in the accident.

Skains testified he was proceeding northerly in his proper lane of travel at about 45 to 50 miles per hour. As he approached the curve ahead, he met a southbound vehicle traveling immediately ahead of Miss Pitre. The Pitre vehicle entered the curve when his truck and the Pitre car were about 250 to 300 feet apart. At this time, he noticed the Pitre vehicle gradually drifting to its left into Skains’ lane. He removed his foot from his accelerator and rested it on his brake but did not apply his brakes. As he observed, the Pitre car continued its drift to the left and entered completely into the northbound lane. It appeared to Skains that the driver of the Pitre car was attempting to pull back into his proper lane, but the vehicle continued to drift to the left. As the vehicles approached each other, Skains supposed the oncoming driver was “playing chicken” and would resume his proper lane of travel. When the vehicles were about 100 feet apart, Skains concluded the oncoming driver would not resume his proper lane, and at that time he applied his brakes and veered sharply to his left. He reasoned that if he veered his truck, it would avoid a direct head-on collision between the vehicles, in which the oncoming car would either be totally demolished or would run beneath the truck, crushing the vehicle and its occupants. He explained that he felt a glancing impact might perhaps turn the vehicle and push it aside, thus affording the occupants of the automobile a better chance of survival. He believed the left front wheel of his truck was in the southbound lane at the moment of impact. At no time did he leave his proper lane until he attempted the mentioned evasive measures.

The accident was investigated by Trooper Gerald Guidry of the Louisiana State police, who arrived on the scene approximately five minutes after the mishap. He found 45 feet of measured skid marks left by all four wheels of the Pitre car, beginning completely in the northbound lane, curving uninterruptedly to and ending at the point of impact. Based on physical signs, he determined the point of impact to be in the southbound lane, one foot west of the cen-terline. He also found 82 feet of measured skid marks made by the Skains truck, beginning entirely in the northbound lane, veering to the left, and terminating at the point of impact.

Billy Bourgeois was looking out of the truck window until just before the impact, when he looked ahead. He saw the oncoming Pitre car in the northbound lane and shouted a warning. The impact occurred immediately thereafter.

Noel Cheramie was traveling southerly ahead of Miss Pitre by an estimated 150 to 200 feet. He passed the Skains truck traveling in its proper lane at what he considered an excessive speed. He followed the course of the Skains truck in his outside rear view mirror and saw the truck enter the southbound land about 50 to 100 feet after passing his car. The truck remained in the southbound lane until its bulk blocked his view of the Pitre car, which was traveling in the southbound lane when he last saw it. He observed the impact occur while the Skains truck was completely in the northbound lane, but he could not position the Pitre car at the moment of impact.

Van Cheramie was following the Pitre car with one vehicle intervening. He did not see the Pitre car leave its proper lane and observed nothing unusual about the movement of either the Pitre car or the truck. Although he was not aware of the imminence of an accident, he observed the impact take place while the Pitre car was completely in the southbound lane.

Ruth Roberson, a school teacher, was proceeding southerly about 300 feet behind Miss Pitre. She saw the approaching truck and knew an accident was imminent. The collision occurred about 225 feet ahead of her vehicle. At the moment of impact, the Pitre car was completely in the southbound lane. She did not observe the truck in the southbound lane until immediately prior to the collision.

Leon Richard, a school bus driver, was proceeding southerly with a bus load of children. Two or three vehicles intervened between his bus and the Pitre car, which was traveling in its proper lane. About 500 feet south of the point of impact, he saw the northbound truck enter the southbound lane. The truck resumed its proper lane and reentered the southbound lane prior to the point of impact. He did not see the collision itself.

Appellant contends the trial court erred in disregarding the testimony of disinterested eye witnesses who placed Skains’ truck in the wrong lane of travel prior to the collision. On this ground, Appellant invokes the rule that a motorist proceeding in the wrong lane of travel bears the burden of refuting the inference of negligence arising from such conduct. Bergeron v. Port Allen Mortuary, Inc., 178 So.2d 442 (La.App. 1st Cir. 1965). Alternatively, Appellant maintains that if Miss Pitre were traveling on the wrong side of the highway, Skains had ample notice of the danger posed thereby and failed to take appropriate and effective evasive measures despite ample opportunity to do so.

A driver proceeding on a public highway is charged with the incessant duty to remain alert and act prudently under the existing circumstances. Hunter v. American Employers Insurance Company, 153 So.2d 588 (La.App. 4th Cir. 1963).

A motorist having the right of way is liable if he can, by the use of ordinary care, observe that another driver will commit a traffic violation and has sufficient opportunity to avoid an accident, but fails to do so. Lake v. Employers’ Liability Assurance Corporation, 152 So. 600 (La.App. Orleans 1934).

Whether a motorist has violated the duty of care imposed upon him by law is a matter to be determined in the light of the facts and circumstances of each particular case. Bryan v. Magnolia Gas Company, 13 La.App. 52, 127 So. 124 (2nd Cir. 1930).

It is obvious that the trial court resolved the factual dispute concerning the positions of the vehicles involved in favor of Skains’ version of the accident. Disinterested witnesses testifying on behalf of Appellant placed the truck in the wrong lane of travel for some distance prior to impact. However, uncontroverted physical evidence, namely, tire marks, observed and measured by an equally disinterested witness, namely, the investigating officer, show that the Skains truck was in its proper lane of travel at least 82 feet prior to the point of collision. The physical evidence, together with Skains’ testimony, is ample support for the trial court’s conclusion that Skains was on his proper side of the highway.

The trial court also concluded that Skains acted reasonably under the circumstances, and that his failure to react sooner than he did was not negligence on his part because he reasonably believed the oncoming driver would resume his proper lane. In this regard, we note Skains’ testimony that it is generally unwise to apply brakes full force on a truck such as he was driving, because of the weight of the vehicle, and that he would not do so save in a case of extreme emergency.

Reviewing courts must give great weight to the conclusions of the trier of fact. Where there is conflicting testimony, reasonable evaluations of witness credibility and reasonable conclusions of the trier of fact based thereon, should not be disturbed, even though an appellate court feels its own, but different, evaluations and conclusions are as reasonable. Where there is evidence of record, which upon reasonable evaluation of credibility and physical facts, furnishes a reasonable basis for the trial court’s findings, such a finding should' not be disturbed on appeal save in a case of manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973).

Not only do we find no error in the trial court’s conclusions, we concur therein.

The judgment is affirmed, Appellant to pay all costs of these proceedings.

AFFIRMED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    STUPP CORPORATION v. CON-PLEX, DIVISION OF U. S. INDUSTRIES.
    No. 11162.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    James H. Hynes and John C. Miller, Baton Rouge, of counsel for plaintiff-appellee Stupp Corporation.
    Gordon A. Pugh and Charles Lamar, Breazeale, Sachse & Wilson, Baton Rouge, of counsel for defendant-appellant Con-Plex, Division of U. S. Industries, Inc.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit by Stupp Corporation to collect the unpaid purchase price on steel piling sold to the defendant, Con-Plex, Division of U.S. Industries, Inc. In its answer Con-Plex denied that any amount was owed, and reconvened for over-payments it contends were made through mistake.

After trial on the merits, the trial court rendered judgment in favor of Stupp on the principal demand and dismissed the recon-ventional demand. Con-Plex has appealed.

The following facts were set forth in the Trial Judge’s written reasons for judgment, and are not materially controverted on this appeal.

After inquiring as to Stupp’s current price for its products, Con-Plex sent a purchase order form, dated June 25, 1973, to Stupp. This purchase order was for 92,900 linear feet of 14 inch pipe piling at the unit price of $2.98 per foot and 1,090 3/i-jnch thick end plates at $7.00 per plate. The prices were consistent with the then current listing price of the seller, Stupp. In addition, the purchase order provided for the collection, by Stupp, of a 5% sales tax and that all pipe was to be furnished “in strict accordance with Louisiana Dept, of Highways’ plans, Standard Specification (Oct. 1971) and Special Provisions.”

Subsequent to the receipt of this purchase order by Stupp, a telephone conversation occurred between representatives of Stupp and Con-Plex, relative to the purchase order. The substance of this conversation was confirmed in a letter from J.R. Barton, District Sales manager of Stupp, to Con-Plex. The letter stated that Stupp was not authorized to collect the 5% sales tax as requested by Con-Plex, but that Stupp could collect a sales tax of 3%, and that Stupp was not familiar with the La. Highway Department specifications, but that Stupp could furnish steel pipe in accordance with “ASTM A 252, Grade 2 Specifications.”

Attached to this letter and referred to therein was Stupp’s Order Acknowledgment, which contained the substance of the original purchase order as modified by the two changes discussed during the intervening telephone conversation. On the reverse side of this order acknowledgment, there were printed numerous conditions styled “Standard Condition of Sale.” Condition number one stated in pertinent part:

“Tubular mill products will be billed in accordance with our posted prices in effect at date of shipment, where applicable. Special job lot work will be billed at quoted prices plus escalation applicable thereto from date of proposal. Posted prices are subject to change without prior notice.”

On August 13, 1973, Con-Plex sent a letter amending the purchase order in compliance with the above letter from Stupp. A representative of each party signed this letter of August 13, 1973 under the word Acceptance. Shortly thereafter, Stupp started shipments of pipe piling and end plates to Con-Plex.

By letter dated February 1, 1974, Stupp advised all its customers, including Con-Plex, that a price increase was being instituted on all tubular products effective February 4, 1974. J.J. Dodson, Jr., Area Manager for Con-Plex, testified that he received the letter from Stupp, but that he did not attribute any significance to the price increase as he believed there was a firm contract in connection with the pipe piling from Stupp. In any event, Con-Plex did not at that time protest the announced price increase.

The invoices for piling shipped after February 4, 1974 were at the increased price. Seventeen invoices were approved by Con-Plex’s job superintendent, and except for the last two, all of them were paid without protest.

At one point in March 1974, Stupp discontinued shipments because Con-Plex was in arrears more than $90,000.00. This arrear-age included invoices at the original price, as well as at the increased price. When Con-Plex’s piling superintendent inquired about the stoppage of shipments he was reminded of the price increase. No protest was lodged, rather Con-Plex forwarded its check to cover the arrearage, and shipments resumed.

After all pipe shipments were received, Con-Plex sent a letter to Stupp stating that payments at the increased price had been made through administrative error, and in view thereof, payment of the final two invoices ($4,037.49) was being withheld.

Thereafter, Stupp instituted suit for this $4,037.49 unpaid balance, and Con-Plex reconvened for $19,999.56 representing payments in excess of the original price.

At trial, both parties assumed that a valid contract existed, but they differed as to its terms. Stupp’s contention was that its acceptance was subject to its standard escalation clause contained in the Order Acknowl-edgement, and that Con-Plex was bound by the escalated price. Con-Plex contended that the contract contained a fixed price under the terms of its purchase order as modified in the August 13, 1973 letter.

The court held that the parties never entered into a binding written contract because there was never a meeting of the minds on the issue of price. (LSA-C.C. art. 2464). However, the court further held that a binding contract arose when Con-Plex, with knowledge of the price increase, received the pipe shipments and paid for them at the increased price. Con-Plex was obligated, under this implied contract, to pay for the final two shipments of pipe at the escalated price.

The issue presented for review is, did the Trial Court err in holding that Stupp and Con-Plex had not entered into a binding written contract at a fixed price.

In the instant case, we are faced with a situation where the parties intended to enter into a contract of sale. This contract must meet the requisites for an ordinary contract (LSA-C.C. art. 1779) and additionally must satisfy the requirements for a sale as stated in LSA-C.C. art. 2439.

LSA-C.C. art. 2464 states, in pertinent part:

“The price of the sale must be certain, that is to say, fixed and determined by the parties.”

The question then becomes, was there a meeting of the minds on price in the purported written contract between Stupp and Con-Plex? The Trial Court answered in the negative. We agree.

It is clear that Con-Plex viewed the purchase order as establishing a firm price for the duration of the contract. Equally clear is the fact that Stupp believed its escalation clause was a part of the contract, as it was a standard part of all their contracts.

This misunderstanding is referred to by Con-Plex as a classic case of the “battle of the forms.” We cannot accept Con-Plex’s contentions, as we believe that the misunderstanding regarding the inclusion of the escalation clause in the contract demonstrates that there was no meeting of the minds on the price issue. Absent consent as to price, the contract was void because it did not fulfill the requirements of Civil Code article 2439.

Even though the written contract was invalid, for want of consent as to price, the subsequent actions of the parties must be examined to determine if a contract arose by some other means, (LSA-C.C. arts. 1811 and 1816). The law is clear that a contract of sale need not be in writing to be valid, so long as all the requisites to its formation are fulfilled, and may even be implied from action, inaction, or silence. Salim v. La. State Board of Education, 289 So.2d 554 (La.App. 3rd Cir. 1974); LSA-C.C. arts. 1811, 1816, 1817.

An examination of the record discloses that in its Order Acknowledgement Stupp clearly stated its right to increase prices, and Con-Plex was informed of Stupp’s price increase before any shipments were made at the increased price. Thereafter, Con-Plex received, accepted and used seventeen shipments of pipe piling and end plates. Payment was made on fifteen of these shipments, without protest. Only after all shipments had been received by Con-Plex was there any objection to the price increase.

Therefore, we conclude that the Trial Court was correct in holding that Con-Plex entered into a subsequent contract at the higher price.

For the reasons assigned, the judgment appealed from is affirmed at defendant’s cost.

AFFIRMED.

      . LSA-C.C. art. 2439
      “The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
      “Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.”


text:
    Herbert K. SMITH, Individually and Mary Delores Smith, Individually and as natural tutrix of her minor children, Jacquelin, et al. v. EARLY AMERICAN INSURANCE COMPANY OF MONTGOMERY, ALABAMA, et al.
    No. 11177.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Keith M. Whipple, Houma, for plaintiffs and appellees.
    Philip J. McMahon, Houma, for defendants and appellants.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

Travelers Indemnity Company appeals from a money judgment rendered against it under the uninsured motorist provision of an automobile insurance policy.

The only issue presented is quantum; Travelers contends it is excessive.

On August 23, 1975, Herbert K. Smith, his wife Mary Delores Smith, and her minor children Jacquelin, Christine, Melissa, Howard Jr., and Annastasia Smith were involved in an automobile accident with a vehicle operated by McKinley McDonald.

It is conceded that McDonald’s negligence was the sole cause of this accident — he hit the Smiths virtually head-on in the Smiths’ lane of travel.

The amount of the judgment exceeded McDonald’s available liability limits and Travelers is present here as McDonald was underinsured. McDonald’s liability insurer, Early American Insurance Co., of Montgomery, Alabama has paid the available limits of its policy plus interest and all costs and has not appealed.

The plaintiffs have answered the appeal seeking an increase in damages for the personal injuries sustained by Mr. Smith, Mrs. Smith and one of the children, Christine; and also for damages for a frivolous appeal.

For the following reasons, we affirm.

Our examination of the record, as well as the authorities relied upon by counsel, leads us to the conclusion that there is sufficient evidence for the trial court’s assessment of quantum. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

In addition to the special damages awarded to Mr. Smith both on his behalf and on behalf of his wife, the trial court awarded Mr. Smith $12,000.00 general damages. Travelers argues in brief this amount should be reduced to the $2,000.00 to $4,500.00 area. In brief, counsel for plaintiffs abandons his request for an increase in damages awarded to Mr. Smith and to Mrs. Smith individually, but argues for an increase in the damages awarded to Mrs. Smith as natural tutrix for Christine.

Counsel for plaintiffs argues that the damages awarded to Mr. Smith are in the “low range” of awards but are within the “much discretion” allowed the trial court.

Mr. Smith testified that he was 55 years old at the time of the accident, that his nose was injured such that he could not breathe through it, that he had 2 teeth broken, his left hand was badly cut and had to be sutured, he suffered broken ribs, toe injuries, and that at the time of the trial (May 19, 1976 — more than 9 months after the accident) he was having trouble keeping his nose open, and his chest area still hurt him.

The only medical evidence in the record is the deposition of Dr. Buford J. Autin general practitioner, and the testimony at trial of Dr. William Summerlin, dermatologist, as to Christine.

Dr. Autin deposed that he first saw Mr. Smith in the hospital the night of the accident, x-rays showed rib fractures on the right side, he found lacerations to the nose, contusions of the face, lacerations of the forearm and multiple other contusions.

Mr. Smith was released from the hospital after five days and then followed by the doctor through office visits.

Dr. Autin described his treatment of Mr. Smith during the following months, the pain that Mr. Smith continued to experience, the blockage of the nose, and Mr. Smith’s inability to work.

As of November 11, 1975, Dr. Autin began to feel that Mr. Smith was returning to normal, but in January 1976 he was still unable to breathe normally through his nose, and in January Dr. Autin also prescribed cortisone because of the various pains Mr. Smith was having.

Dr. Autin further deposed that January 27, 1976 was the last time he saw Mr. Smith, but at that time he continued him on cortisone. He testified that he did not know of Mr. Smith’s present condition, but opined that he was still having trouble with his nose, and could possibly have minor chest pains or residual pain for months, but that generally he should be well healed.

In view of the foregoing we are unable to say the trial judge abused his discretion. Coco v. Winston Industries Inc., 341 So.2d 332 (La.1976).

Counsel for Travelers also argues that the dental bill of $40.00 should be disallowed as the dentist himself was not called by plaintiff. Mr. Smith testified as to the teeth and the visit to the dentist and the trial court apparently was satisfied in this regard. We do not view this as error.

Mrs. Smith was awarded $10,000.00 by the trial court for her personal injuries. She gave a history to Dr. Autin of having flown out of the car through the windshield.

Dr. Autin deposed that Mrs. Smith suffered injuries to the face, neck, chest, forearm, thigh and knee and also complained of being dizzy.

X-rays on the night of the accident were negative and she was sent home, but 2 days later Dr. Autin hospitalized her, mainly because of her complaints of severe headaches and weak spells. She remained in the hospital 3 days.

Dr. Autin deposed that he found a sprain of the sternal area, large abrasions on the lateral surface of the left thigh, left knee, and painful and swollen minor abrasions of all the extremities. He found her left forearm quite painful and swollen, and testified she complained of pain in the lumbar area, and that he found pain in the neck on movement.

His diagnosis was that she had a sprain of the cervical region, sprain of the lumbar area, contusions of the face, thigh and left knee. He did not find that she had a concussion or cerebral damage.

Dr. Autin testified as to his follow-up care of her as an out patient throughout September, October and. November, up to her last visit on November 11, 1975.

The trail judge verbally described the scars which were exhibited to him as 2lk to 3 inches on the thigh and another scar above the knee 1% to 2 inches in length.

We find no abuse of discretion in the trial judge’s award to Mrs. Smith. Coco, supra.

Additionally, Mrs. Smith testified as to her dental injuries and the dental bill was admitted without objection. Although the dentist did not testify, we do not find that it was error for the trial court to allow the dental bill as part of the items of special damages.

Dr. Autin deposed that he first saw Christine on September 2, 1975, that she had stitches in her lip, which he removed. She complained of pain in the upper abdomen and he found some minor contusions.

On September 9, he cauterized her lip because of a small area that had not healed, and although x-rays of the ankle were negative, he found it swollen. He placed her on antibiotics for a slight inflammation of her lip.

Dr. Autin, on September 16, paid attention to a 2Y2 X 1 inch scar on her right shoulder, and on November 24 it showed evidence of a keloid, which he defined as an unusually large scar. He thereupon referred her to a dermatologist for treatment. Dr. Autin described the scar as permanent.

Dr. William Summerlin, board certified dermatologist, testified at trial that he first saw Christine on December 22, 1975, at the request of Dr. Autin. He found the scar on her lateral right shoulder region tender and very elevated, with blood vessels across the surface.

He stated he did not treat the lip scar, but that because the shoulder scar was “so considerably enlarged” he elected to treat her rather vigorously with intralesional steroids, i. e. cortisone.

Dr. Summerlin testified at length concerning the painful method of injections via a dermajet injection, using air pressure as well as with conventional syringe injections. He characterized the treatment as “quite painful” and testified she underwent this treatment 8 times.

At the time of trial Christine was still under his care.

During direct examination of Dr. Summerlin, counsel for plaintiff showed to him a photograph of the scar; but the trial court sustained defendants’ objection on the grounds that the witness had not taken the photograph and it was not otherwise properly identified. The photograph is in the record by way of proffer, however. Dr. Summerlin testified that the photograph fairly depicted the scar as it presently was. We think, under the circumstances, such was an adequate identification of the photograph that it should have been admitted into evidence. Launey v. Traders and General Insurance Co., 169 So.2d 757 (La.App. 3rd Cir. 1964).

In any event, the trial judge viewed the scar and dictated into the transcript his observations of it.

Under the circumstances we do not find that the trial judge abused his much discretion in awarding $10,500.00 general damages for Christine’s injuries. Coco, supra.

Dr. Summerlin testified that when Christine gets older corrective surgery may improve the look of the scar, and that the cost would range from $300.00 to $800.00. Under these circumstances, including $500.00 as an item of special damages was not error.

The awards of $400.00 and $600.00 respectively to the other minor children are clearly not an abuse of discretion.

We find nothing to support plaintiffs’ contention that this was a frivolous appeal.

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

AFFIRMED.


text:
    Clifton M. HAMILTON v. GEORGIA PACIFIC CORP.
    No. 11181.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Arthur Cobb, Baton Rouge, of counsel for the plaintiff-appellant.
    Charles S. McCowan, Jr., Baton Rouge, of counsel for the defendant-appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit to recover workmen’s compensation benefits. The trial court awarded benefits for impairment of a physical function at the rate of $65.00 per week for a period of fifty-two weeks and the costs of all medical treatment. From this award, plaintiff has appealed claiming that he is totally and permanently disabled.

On November 5, 1974, plaintiff, Clifton M. Hamilton, twisted his left foot while walking down a concrete incline in the course and scope of his employment for defendant, Georgia Pacific Corporation. Mr. Hamilton was initially seen by Dr. Harry Morris, the company doctor, at Lane Memorial Hospital and referred to Dr. Joe Morgan. Dr. Morgan diagnosed the injury as an avulsion fracture of the base of the fifth metatarsal with a small chip fracture from the cuboid of the left foot. A short leg walking cast was applied and plaintiff was allowed to go home.

Mr. Hamilton was subsequently treated by three orthopedic surgeons, Drs. Morgan, Hughes, and Strange, and by his family practitioner, Dr. Garner. On each occasion, Mr. Hamilton complained of pain in his left foot, associated with prolonged use of the extremity.

At the time of the injury, Mr. Hamilton was employed as a machine room superintendent by Georgia Pacific. He describes his job in physical terms as one requiring considerable running, climbing, squatting, and bending. He has been unemployed since the injury, despite the fact that he has sent out resumes to secure a job.

Georgia Pacific paid Mr. Hamilton compensation benefits for a period of two weeks and then discontinued payments. The decision to stop payments was made after evaluating the medical report of February 26, 1975, from Dr. Morgan which indicated that Mr. Hamilton could return to work.

Plaintiff contends that the trial court erred in not awarding total and permanent benefits. LSA-R.S. 23:1221(2). He maintains that he is unable to perform work similar to that engaged in previous to the injury because of pain, and is therefore totally and permanently disabled.

At trial, Mr. Hamilton testified that he has experienced continuous difficulties associated with his injury. He stated that he suffers pain in his left foot whenever he walks or stands for any sustained period. Testifying further, he stated that he could not perform work similar to his work at the time of the injury due to this pain. Mrs. Hamilton testified that her husband walks with a pronounced limp and often complains of pain in his left foot.

Medical reports constituted the only expert evidence at trial. These reports do not substantiate Mr. Hamilton’s contentions.

Dr. Morgan stated in a report dated February 26, 1975:

“Mr. Hamilton was last seen on February 24, 1975. He continued to complain of pain on the lateral aspect of the left ankle and foot. There was no visible swelling of either the foot or ankle and a complete range of motion was obtainable. There was no tenderness to direct palpation over the fracture site. . . . “At that time he was advised that he was making satisfactory progress and that within about two weeks, I thought he might return to work and perform his duties satisfactorily.”

On March 21, 1975, Dr. Hughes reported of Mr. Hamilton’s condition:

“The remaining osteoporosis of the foot will gradually clear up in time with continued activity and weight bearing. I do not believe that further treatment is indicated for this injury. I believe that he should be able to return to work without any appreciable disability.”

Dr. Strange examined Mr. Hamilton twice at the request of Georgia Pacific. On April 22, 1975, he reported:

“. . .1 predict this man will be able to accomplish the type employment that he could previously and would rate him approximately 10 to 15% physical impairment . . . ”
Again on February 16, 1976, he reported: “. . . the patient has continued to complain of pain in the foot with inversion strains, excessive ambulation, and climbing. “. . .1 have awarded him 15% of his lower extremity, or about 25% of the foot, either way you like. I still maintain that as the patient describes his job to me, he could perform it.
“. . . I do not anticipate complete recovery in this patient physically as I recognize some component of an emotional overlay with his injury.” (emphasis supplied)

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).

In the instant case, the trial court, after considering both medical reports and the testimony of the Hamiltons, ruled that total and permanent disability, based on severe pain, had not been proven. Rather, the trial court found that the usefulness of the physical function of plaintiff’s foot was impaired, but that the condition of his foot did not disable him from performing any of the duties of his former employment. Cormier v. Zigler Shipyards, 264 So.2d 236 (La.App. 3rd Cir. 1972). We agree.

Great weight is given to the trial court’s determination of disability, since it is an issue of fact. This follows since the trial judge is in a better position to weigh the credibility and demeanor of witnesses than an appellate court, which has only a transcript. Accordingly, a trial court’s determination will not be disturbed in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Campanella v. State, Dept. of Highways, 328 So.2d 798 (La.App. 1st Cir. 1976).

The record shows that all three orthopedic surgeons, who treated Mr. Hamilton, are in agreement that his injury did not permanently disable him, and that he should be able to resume work similar to that at the time of the injury.

This evidence is sufficient to maintain the trial court’s determination that the injury was not such as to render the appellant totally and permanently disabled.

We find, however, that the trial court erred in not awarding the compensation benefits over a one hundred week period as provided in LSA-R.S. 23:1221(4)(p). The trial court has discretion in setting the amount of compensation to be paid up to a maximum, but it has no discretion in fixing the period for which benefits are paid. This period must be fixed at one hundred weeks. Golden v. Starns-McConnell Lumber Corp., 172 So.2d 78 (La.App. 1st Cir. 1966); Macaluso v. Schill-Wolfson, 56 So.2d 429 (La.App. Orl. Cir. 1952).

The awarding of penalties or attorney’s fees is not appropriate in this case, since Georgia Pacific’s reliance on medical reports in refusing to pay compensation was not arbitrary and capricious, LSA-R.S. 23:1201.2.

For the reasons assigned, the judgment of the trial court is amended to increase the period for which benefits are due to one hundred weeks, and affirmed in all other respects at defendant’s cost.

AMENDED AND AFFIRMED.

      . We accept the job description given by Mr. Hamilton, even though there was testimony to the effect that the job was administrative rather than physical, since it was conceded that the day-to-day activities as superintendent were left to his discretion.

      . Mr. Hamilton was terminated by Georgia Pacific on the same date as the injury and he remained unemployed up to the time of trial. It is not contended that this termination was related to the injury. However, he continued to receive wages through January 31, 1975.

      . Since the injury occurred in 1974, we look to the law on total and permanent disability as it existed prior to the 1975 amendments to the Workmen’s Compensation Act. At that time, total and permanent disability was defined in LSA-R.S. 23:1221(2), as the inability to do work of any reasonable character. This was interpreted to mean work of the same or similar nature as that engaged in prior to the injury


author: CHIASSON, Judge.

text:
    Eugene BOASSO v. Huey P. McINTYRE, Administrator of the Succession of Jean B. McIntyre.
    No. 11200.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Richard L. Muller, Richard P. Massony, Mandeville, for plaintiff-appellant.
    Thomas S. Derveloy, Jr., Covington, for defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of the defendant-ap-pellee, Huey P. McIntyre, Administrator of the Succession of Jean B. McIntyre, and against the plaintiff-appellant, Eugene Boasso, rejecting appellant’s demand and dismissing his suit.

In February of 1974, the appellant advanced his daughter, Jean B. McIntyre, $2,000.00 with which to make a down payment on a used car. The appellant and his wife testified that the money was given to their daughter as a loan to be repaid when she could. This testimony was corroborated by Mrs. Ruby Sharpe, a friend of the appellant’s daughter, who testified' that she was told by the appellant’s daughter that the money from the appellant was a loan and that she intended to repay the loan. The daughter did not give a promissory note or execute any other written evidence of an obligation to pay.

Jean B. McIntyre died about nine months after she received the $2,000.00. During this time she did not repay any of the $2,000.00. After the death of his daughter, on July 7, 1975, the appellant brought this suit to have the appellee, the administrator of the appellant’s daughter’s estate and her ex-husband, include the alleged $2,000.00 loan in the list of succession debts.

Following a trial on the merits the District Court dismissed the appellant’s suit stating:

“It is the Court’s opinion that there was no binding or absolute agreement for payment but merely an understanding between parents and daughter that she could repay the advance when and if her circumstances would permit. There was nothing binding in the obligation and repayment, if any, was left entirely to the will of their daughter. “It is my opinion that had she lived they would never have sought by judicial means to compel payment . . . ”
(Reasons for Judgment).

That the appellant might never have sought by judicial means to compel payment has no bearing upon the nature or enforcibility of the obligation. The important question is whether the appellant could, if he so desired, compel payment by judicial means.

The evidence establishes that the appellant’s daughter was to repay the $2,000.00 “when” she could. The District Court concluded that the agreement by the daughter to pay “if and when” she could did not create a binding obligation because repayment was left entirely to the will of the daughter.

The transaction between the appellant and his daughter was a loan for consumption. Civil Code Article 2910. The debtor in a loan of money is bound to return the sum lent to him. Civil Code Article 2913. “If it was agreed only that the borrower should pay when he could, or when he should have the means so to do, he ought to be sentenced to pay as soon as he appears to be able so to do.” Civil Code Article 2919. The daughter agreed to repay the $2,000.00 when she was able. This agreement created a binding obligation enforceable under Civil Code Article 2919.

For the above reasons, the judgment appealed from is reversed and it is ordered that there be judgment in favor of the appellant, Eugene Boasso, and against the Appellee, Huey P. McIntyre, Administrator of the Succession of Jean B. McIntyre, ordering said appellee to include in the list of debts the appellant’s claim in the amount of $2,000.00. Our holding herein deals solely with the listing of this indebtedness in the succession proceedings. Whether or not the debt or any part thereof must be paid will depend upon the solvency of the estate of Jean B. McIntyre.

Costs are to be paid by the appellee.

REVERSED AND RENDERED.


author: ELLIS, Judge.

text:
    K-WAY EQUIPMENT COMPANY v. Donald J. MILLS.
    No. 11203.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Patrick F. McGrew, of Kizer & Kizer, Baton Rouge, for plaintiff-appellee.
    Doris Gates Rankin, Baton Rouge, for defendant-appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is an appeal by Donald J. Mills from a money judgment rendered in favor of K-Way Equipment Company. We note, ex proprio motu, our lack of jurisdiction because the appeal was not timely perfected.

Personal service of the petition was made on defendant on December 19, 1975. Answer was filed, and trial held on the merits. Judgment was rendered for plaintiff on September 20,1976. Motion for appeal was signed on September 28, 1976, and a cash appeal bond filed on October 13, 1976.

Article 5002 of the Code of Civil Procedure, which governs appeals from City Courts in cases involving more than $100.00 provides:

“The delay for answering shall be stated in the citation and shall be five days, exclusive of legal holidays. A defendant shall incorporate in his answer all of the exceptions on which he intends to rely. No prior default is necessary, and judgment may be rendered as provided in Article 4896. Notice of the rendition of judgment is not necessary, except as provided in Article 4898. The delay for answering garnishment interrogatories shall be five days, exclusive of legal holidays. “A new trial may be applied for within three days, exclusive of legal holidays, of the date of judgment, or within three days of the service of notice of judgment when necessary.
“A devolutive or suspensive appeal to the proper appellate court may be granted if applied for within ten days after the expiration of the delay for applying for a new trial, or within ten days of the denial of a new trial.
“The suspensive appeal bond, as required by the applicable provisions of Article 2124, must be filed within the delays allowed above for a suspensive appeal.”

Article 4898 of the Code of Civil Procedure provides:

“Notice of judgment shall be served on a defendant against whom judgment is rendered if the citation was not served on him personally, and he failed to answer.
“Notice of judgment need not be given in any other case.”

Since there was personal service on defendant, the delay for applying for a new trial began to run on September 21, 1976. Since the appeal bond was not furnished within ten days of the expiration of the three day delay for applying for a new trial, this appeal was not timely perfected, and we are without jurisdiction.

The appeal is therefore dismissed, at defendant’s cost.

APPEAL DISMISSED.


author: PONDER, Judge.

text:
    Terry TANDY et ux. v. Emile SIMONEAUX and Shirley Simoneaux, et al.
    No. 11206.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Steven Joffrion, Joffrion & Dugas, Don-aldsonville, for plaintiffs and appellees.
    David W. Robinson and B. L. Guelfo, Watson, Blanche, Wilson & Posner, Baton Rouge, E. Robert Sternfels, Triche & Stern-fels, Napoleonville, for defendants and appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for personal injuries as a result of an automobile accident. The trial court rendered judgment in favor of plaintiffs, Terry and Sue Tandy, and against defendants, Emile Simoneaux and his wife, Shirley.

Defendants claim the trial court committed manifest error in holding that Mrs. Si-moneaux was driving at the time of the accident, and in finding that she was on a community mission.

We reverse in part and affirm in part.

Mrs. Simoneaux and Pfister met at a bar on the afternoon of the accident. After having a couple of drinks, they decided to retire to the house of a friend for the expressed purpose of engaging in prostitution. On the way, the car owned by Simo-neaux and occupied by Mrs. Simoneaux and Pfister ran a stop sign and hit the Tandy vehicle broadside. The latter overturned and trapped Mrs. Tandy’s hand underneath, causing severe injury: three operations were required; the residual disability of the hand was rated at 40 percent.

We find no manifest error in the holding that Mrs. Simoneaux was driving when the accident occurred. Pfister testified that she was driving; Mr. Donald Ber-geron, owner of a barber shop across the street from the restaurant-bar where Mrs. Simoneaux and Pfister met, testified that Mrs. Simoneaux was driving when they left the bar. Mr. Tom Mistretta, the owner of the restaurant-bar, testified that he saw Mrs. Simoneaux behind the steering wheel before they drove off.

Mrs. Simoneaux testified she was not driving. Mrs. Tandy had told her husband shortly after the accident she thought Mr. Pfister was driving. When asked about it at trial, she said she merely assumed he was driving since her husband usually drives when they are together.

The reasonable evaluation of credibility on the part of the trier of fact will not be disturbed. Canter v. Koehring, La., 283 So.2d 716 (1973).

The husband is not liable for the torts of the wife simply because of the marital relationship. Brantley v. Clarkson, 217 La. 425, 46 So.2d 614 (1950); Bradford v. Brown, 199 So.2d 414 (La.App. 1st Cir. 1967). He is liable as head and master of the community for her torts only if she was expressly or impliedly authorized by the husband and was attending to a community mission or affair. Bradford v. Brown, supra; Kipp v. Hurdle, 307 So.2d 125 (La.App. 1st Cir. 1974), writs denied, 310 So.2d 643 (La.1975).

If it be shown that the accident occurred through the negligence of the wife in the use of the car, operated with the actual or implied consent of the husband, the husband, to avoid liability, must show, to the satisfaction of the court, that the wife was on a mission of her own. Martin v. Brown, 240 La. 674, 124 So.2d 904 (1960).

We hold that Mrs. Simoneaux had the implied permission of her husband to operate the vehicle. He testified he was aware that her driver’s license had been revoked, but nevertheless left a set of keys so that she could use the car, so long as someone else drove. By entrusting her with a set of keys, we believe Mr. Simo-neaux gave implied permission to his wife to drive the car.

The trial judge concluded Mrs. Simo-neaux was on a community mission, evidently finding that the defendants had not met the burden of proof in showing that Mrs. Simoneaux was on a mission of her own. We disagree.

Mrs. Simoneaux and Mr. Pfister both testified without contradiction that they were en route to a friend’s house to engage in prostitution when the accident occurred. This activity does not meet the requirements set out in Brantley v. Clarkson, supra, wherein the court said: “the legitimate pursuits of the wife, whether for wholesale recreation and pleasure or for other purposes consonant with the intangible and imponderable obligations of the marital relationship should be considered as within the scope of the community activities.” (Emphasis ours)

There was no proof that Mr. Simoneaux was aware of his wife’s illicit activities. There was no testimony that any compensation for such activity became community property.

Plaintiffs have urged alternatively that Mr. Simoneaux was guilty of primary negligence. While it is conceded that Mr. Simoneaux left the car keys in the control of his wife, we do not believe this constituted actionable negligence. Plaintiffs have cited no statutes or jurisprudence in support of this contention and we have found none.

For the above reasons, the judgment is reversed as to Emile Simoneaux. The judgment in favor of Terry Tandy and against Shirley Simoneaux for $2,761.63 and in favor of Sue Tandy and against Shirley Simo-neaux for $18,000.00 is affirmed. All costs are cast against Shirley Simoneaux.

AFFIRMED IN PART AND REVERSED IN PART.


text:
    Robert J. CROWE v. Cassandra Ann Nevers CROWE.
    No. 11207.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Richard F. Knight of Talley, Anthony, Hughes & Knight, Bogalusa, for plaintiff.
    Richard W. Brown of Seal, Lee, Branch & Brown, Bogalusa, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This suit was filed on December 4, 1973, by Robert J. Crowe, seeking a separation from bed and board from Cassandra Ann Nevers Crowe on the ground of abandonment. On March 1, 1974, an order was signed granting temporary custody of the parties’ nine year old son to plaintiff, pursuant to stipulation, without prejudice to defendant’s right to have the issue of custody determined at a later hearing. On January 15,1975, defendant filed a rule for a change of custody. The matter was continued several times at the instance of both parties. On December 1, 1975, plaintiff filed a petition for a final divorce on the ground of living separate and apart for more than two years.

On April 5,1976, following a full hearing, judgment was rendered in the custody rule, granting permanent custody to the plaintiff. On April 21, 1976, judgment of divorce was rendered in favor of plaintiff, again awarding permanent custody to plaintiff. Defendant has appealed.

The evidence shows that the parties were married on April 22, 1966, and that their son, Robert J. Crowe, Jr., called Joey, was born on October 2, 1967. About three months thereafter, Mrs. Crowe was hospitalized in Southeast Louisiana Hospital, a mental institution, for depression. She was discharged eight months later, and went to live with her parents. She remained with them for about six months and then returned to live with her husband and child at the family home in Bogalusa, Louisiana.

During the next six and one-half years the parties remained together, except for a number of occasions when Mrs. Crowe would return to her parents for periods of from three days to one week. The parties separated finally in September, 1973. At that time, Joey remained with his father, and has been with him until the present time.

In February, 1973, Mrs. Crowe began seeing a psychiatrist, Dr. Richard M. Dawes, who treated her until April, 1974. Dr. Dawes was of the opinion that Mrs. Crowe’s condition was somewhere in the area between severe neurosis and schizophrenia. He felt that she was a very dependent person who was unable to accept responsibility for other persons. He was of the opinion that she would have to become more independent before she could adequately care for her child. Dr. Dawes examined Mrs. Crowe again, in April, 1975, and his opinion remained the" same.

Mrs. Crowe also consulted Dr. Robert An-cira, a psychiatrist, who saw her three times, on February 28, and April 14 and 21, 1975. Dr. Ancira found her “to represent a personality disorder”, having “an area in her personality that she is in conflict with, having to do with her own dependence or independence of behavior.” He felt that she needed “to have a person available to whom she can periodically turn to for guidance and reassurance and support.” He was of the opinion that, so long as Mrs. Crowe had some person available for support, she could care for her child, but that, if the support were removed she would probably revert to her former patterns of behavior.

It appears from the record that Mrs. Crowe took care of the child adequately while living with her husband. The conditions under which she plans to care for him, if she gains the custody, seem to be consistent with those afforded by any working mother.

Mr. Crowe is a police officer in Bogalusa, Louisiana, working various shifts. He still resides in the family home, which is located on an acre of ground given him by his father. Mr. Crowe’s parents live nearby. Joey has a room in both his father’s and his grandparents’ houses. During the week he sleeps at his grandparents’ house, because his grandmother gets him off to school in the morning. When the plaintiff is at home, Joey stays with him, and they see each other on a daily basis.

Joey attends school and church in Bogalu-sa. He plays league football, is a Cub Scout, and enjoys hunting and fishing with his father. He visits with his mother every other weekend.

Mr. Crowe testified that he is dating a woman, with whom he has had intimate relations. He testified that this has never occurred when Joey was in the house, and that he believes Joey to be unaware of it.

In determining the propriety of a judgment awarding custody we are guided by the following principles, quoted in Nethken v. Nethken, 307 So.2d 563 (La.1975):

“Universal and fundamental principles of the law support the proposition that the paramount consideration in custody cases is always the welfare of the child.
“In keeping with the law’s aim to promote the child’s welfare, the decisions have recognized that the child’s best interest is served when custody is awarded to the mother, especially when the child is of tender years. Based upon this premise, the mother’s right to custody is paramount. Thus custody should not be denied the mother unless she is morally unfit or otherwise unstable, and then only when the immorality or instability is such that these characteristics and her conduct adversely affect the child. It is only in exceptional cases that the child’s best interest is served by changing custody from the mother to the father.
“When the trial judge has made a considered adjudication of permanent custody based upon these principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of clearly proving that the continuation of the existing custody so adversely affects the child that the child’s removal is justified.
“Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight, and his findings will not be disturbed in the absence of a clear showing of error. See also Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), and the cases cited therein.” 281 So.2d at 697.

After reviewing the record, we find there is ample evidence to support the findings of the trial judge. We recognize the paramount right of the mother to the custody of children of tender years. However, in this case, that consideration is outweighed by the fact that the child has been with his father for almost four years, when coupled with Mrs. Crowe’s unfortunate history of mental illness and instability. We agree with the trial judge that the best interests of young Joey require that he remain in the custody of his father.

We reject Mrs. Crowe’s contention that this is a custody case between the mother and the grandparents, rather than between the mother and father, as not being supported by the record.

The judgment appealed from is affirmed, at defendant’s cost.

AFFIRMED.


text:
    Clifford FULTZ v. J. Leslie McDOWELL et al.
    No, 11213.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Gordon M. White, Baton Rouge, for plaintiff Clifford Fultz, appellant.
    David W. Robinson, Baton Rouge, for defendant J. Leslie McDowell, appellee.
    ^efore ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff brought this tort action against defendant, a general contractor, for injuries he received while working for a subcontractor as a brick layer. Plaintiff has appealed from the court’s sustaining an exception of no cause of action.

The issue before this court is whether plaintiff’s exclusive remedy is in Workmen’s Compensation.

We affirm.

Plaintiff was employed to lay bricks on a home being built by defendant as the general contractor. He alleged that faulty and poor construction by the defendant caused a porch to collapse injuring him, and sought damages in tort, for personal injuries, medical expenses and loss of income. Defendant filed an exception of no cause-of action, on the ground that plaintiff’s sole remedy against him was under the Louisiana Workmen’s Compensation Act.

LSA-R.S. 23:1061 provides that the remedy granted to an employee of an independent contractor under the Workmen’s Compensation Act is exclusive of all other rights and remedies to which he might otherwise be entitled. If the allegations of plaintiff’s petition show conclusively that he is covered by the Act, his exclusive remedy is in Workmen’s Compensation, and the petition therefore does not state a cause of action in tort. Gifford v. Aurand Manufacturing Company, 207 So.2d 160 (La.App. 4th Cir. 1968) writ denied, 252 La. 113, 209 So.2d 41.

An exception of no cause of action will not be sustained unless plaintiff’s well pleaded allegations disclose that under no circumstances could he recover. Blanchard v. Employers Liability Assurance Corp., 197 So.2d 386 (La.App. 2nd Cir. 1967). To exclude himself from LSA-R.S. 23:1061, plaintiff argues that he was engaged in “specialized labor” outside the usual business and trade of a general building contractor. However, we note that LSA-R.S. 23:1061 says compensation is due if the work is part of the principal’s trade, business or occupation or is work which he had contracted to perform. Defendant had contracted to build the house; the bricklaying was a part of this. Therefore the fact that plaintiff was engaged in specialized labor outside the usual business or trade of a general building contractor is irrelevant, even if true.

The exception of no cause of action was properly maintained; the lower court dismissed the suit. Any amendment plaintiff might make to his pleadings would not change the exclusive nature of the remedy in Workmen’s Compensation. Therefore, no opportunity to amend need be afforded.

The judgment of the trial court is affirmed; plaintiff is cast with all costs.

AFFIRMED.

      . LSA-R.S. 23:1061. Principal contractors; liability
      Where any person (in this section referred to as principal) undertakes to execute any work, which is part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

      . The cases cited by appellant, Horrell v. Gulf & Valley Cotton Oil Co. (Orleans, 1930), 15 La.App. 603, 131 So. 709, and Finn v. Employers' Liability Assurance Corp., 141 So.2d 852 (La.App., 2nd Cir. 1962), both involved principals and not principal, or general, contractors. It is difficult to agree that bricklaying, even though specialized, is not a part of a general contractor’s trade or business.


text:
    Curtis J. LANDRY d/b/a Curtis’ Seafood Restaurant v. PIERRE PART NATURAL GAS COMPANY, INC. et al.
    No. 11221.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Robert L. Menuet, Napoleonville, for plaintiff-appellant.
    Vincent J. Sotile and Victor Marcello, Donaldsonville, for defendant-appellee.

      Victor A. Sachse, III, Baton Rouge, for third party defendant South Central Bell Telephone Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a suit for damages allegedly suffered by plaintiff, Curtis J. Landry, doing business as Curtis’ Seafood Restaurant, as a result of a leaking gas pipe owned by defendant, Pierre Part Natural Gas Company, Inc. Defendant filed a peremptory exception of prescription which, after a hearing, was maintained by the trial court, and plaintiff’s suit was dismissed. From the judgment of dismissal, plaintiff has appealed.

Since no evidence was adduced at the hearing on the exception, we assume that defendant contends that plaintiff’s cause of action is prescribed on the face of his petition. See Kennard v. Yazoo and M. V. R. Co., 190 So. 188 (La.App. 1 Cir. 1939).

The petition alleges that plaintiff operated a restaurant in Belle River, Louisiana, and that a two-inch cast iron gas pipe, part of the system operated by defendant, ran directly in front of the restaurant. In September, 1973, plaintiff complained to defendant about the odor of gas in and around the restaurant. Defendant dug along its line at that point, but failed to discover a leak. The odor continued thereafter, and defendant was again notified of the odor by letter from the President of the Assumption Parish Police Jury on November 15, 1973. The petition further states:

“11.
“Over the course of several months from November 15, 1973, until April 1974 petitioner received numerous complaints from his customers as to the smell of gas in and around his building at which time petitioner’s business began to decline, due to said gas leak. In April, 1974, because of the decline of business and petitioner fearing for his own safety as well as that of his customers was forced to discontinue his business.
“12.
“On April 23, 1974, the defendant was again notified by certified mail as to gas seepage into petitioner’s building from its gas line and petitioner’s discontinuance of his restaurant business due to said gas leak.
“13.
“On April 28,1974, defendant discovered said gas leak in its gas line approximately six (6) feet past its last digging operations mentioned in Paragraph 9, infra and repaired same.
* * * * * *
“16.
“The said continuous escape of gas about and into the building occupied by plaintiff caused the suspension of plaintiff’s business on said premises; deprived plaintiff of the use of said premises and caused plaintiff the loss of the use and enjoyment of the lease held by plaintiff on said building; caused plaintiff the loss of profits and caused plaintiff to suffer considerable inconvenience, anxiety, and mental distress.
“17.
“As a result of the negligent acts of defendant, plaintiff was forced to discontinue his restaurant and bar business and seek employment before and after said leak was repaired on April 28, 1974.
“18.
“That after said leak was discovered and repaired on April 28, 1974, plaintiff was unable to immediately resume his business operations due to the interruption of his cash flow requirements necessary to operate his business and the resulting loss of his employees because of the discontinuance of his business.
“19.
“That plaintiff had intended to resume his business operations upon improvement of his financial position when defendant intentionally, maliciously, illegally and willfully cut off plaintiff’s gas supply to plaintiff’s building on or about July 25, 1974.”

It is defendant’s position that, since this suit was filed on November 27, 1974, and more than one year had elapsed since plaintiff became aware of the gas leak, the cause of action was prescribed under Article 3536 of the Civil Code.

However, the allegations of the petition clearly are to the effect that the operating cause of the injury complained of is continuous, giving rise to progressive damages. The alleged offense continued until the gas main was finally repaired on April 28, 1974, which is well within a year of the date on which this suit was filed. It also appears from the petition that the damages complained of were suffered within one year prior to the date on which suit was filed.

Under such circumstances, it is clear that prescription has not run on the plaintiff’s demand. See Devoke v. Yazoo and M. V. R. Co., 211 La. 729, 30 So.2d 816 (1947).

The judgment appealed from is therefore reversed and set aside and the case remanded to the trial court for trial on its merits, in accordance with law. All costs of this appeal are to be paid by defendant. All other costs shall await final determination of the case on its merits.

REVERSED AND REMANDED.


text:
    Joseph R. JONES, Sr. v. Jessie Jean Moore JONES.
    No. 11222.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Calvin C. Fayard, Jr. and James Kuhn, Fayard, Morrison, Fayard & Kuhn, Denham Springs, for appellee.
    Gerard E. Kiefer, Baton Rouge, for appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of Joseph R. Jones, Sr., plaintiff-appellee, and against Jessie Jean Moore Jones, defendant-appellant, giving the appellee the permanent custody of Joseph Jones, Jr., Jeffery A. Jones and Michael Jones.

The appellant and the appellee were married on November 25, 1961, in Livingston, Louisiana. The matrimonial domicile was initially established in East Baton Rouge Parish and later moved to Livingston Parish where it remained. Three children were born of this marriage; Joseph Jones, Jr., age twelve years; Jeffery A. Jones, age eleven years; and Michael Jones, age five years.

In May, 1975, the appellant left the matrimonial domicile and moved to Baton Rouge. Custody of the children alternated between the appellant and the appellee for approximately a month. At that time the appellee filed a suit for divorce alleging that the appellant had committed adultery. Alleging present physical custody, the ap-pellee asked that he be granted temporary custody of the children during the pendency of the suit and permanent custody of the children thereafter. He alleged that the appellant on numerous occasions had left the children unattended and was in other ways unfit to care for them.

The District Court on June 27, 1975, signed an ex parte order granting temporary custody of the children to the appellee. However, either prior to the signing of this order or shortly thereafter, the record is unclear as to the exact time, the appellant obtained physical custody of the two younger children and took them to Baton Rouge. On the advice of his attorney, the appellee did not try to regain custody of these two children.

The appellant answered the appellee’s petition denying his allegations and reconvened asking for a separation from bed and board, custody of the three children and child support. A rule to show cause why the appellant should not be granted custody of the children and child support was issued and a hearing on the rule held.

Following the hearing the District Court rendered judgment in open Court giving temporary custody of Jeffery A. Jones and Michael Jones to the appellant and temporary custody of Joseph Jones, Jr. to the appellee. The appellee was ordered to pay the appellant child support during the pend-ency of the proceedings. The Welfare Department was ordered to investigate the home surroundings of the appellant and the appellee and report its findings to the Court. It appears that these home studies were made. These reports are not included in the record.

Prior to the rendition of final judgment the appellee’s petition was amended by stipulation to include, in the alternative, a prayer for separation from bed and board based on the appellant’s alleged abandonment of the matrimonial domicile on May 24, 1975 or on the appellant’s alleged adultery.

On October 10, 1975, the District Court rendered judgment in favor of the appellee and against the appellant granting the ap-pellee a separation from bed and board and giving him permanent custody of the three children. It is the custody portion of this judgment which has been appealed.

The appellant contends that:

“1. The Trial Court erred in awarding custody to the father without finding the mother ‘unfit’.
“2. The Trial Court erred in receiving and considering evidence (Welfare Report) without giving the mother opportunity to examine the content of such report and examining the maker of such report.
“3. The Trial Court erred in its application of fact to law in awarding custody to the father.”

The legal principles to be applied in determining custody were stated by the Louisiana Supreme Court to be:

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children.
“(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father.
“(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. “(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof.” (Citations omitted).
Fulco v. Falco, 259 La. 1122, 254 So.2d 603 (1971), at 605.

The maternal preference rule is explanatory of, rather than distinct from, the general principle that the best interest of the children lies in giving custody to the mother and, in most cases, follows naturally therefrom. Stevens v. Stevens, La.App., 340 So.2d 584 (1st Cir. 1976).

There is evidence in the record which would support a finding by the trial judge that the best interests of the children lie in awarding custody to the appellee. There has been no clear showing of abuse of discretion by the trial judge. The record indicates that the two children in the appellant’s custody were left alone in the mornings and on at least one occasion in the evening. The appellant also appears to have been willing to allow the children to be separated from one another by having the oldest child remain in the custody of the appellee. Such a division of custody would not be in the best interest of the children.

The appellant contends that it was error for the trial judge, in determining the custody issue, to consider a report prepared by the State Department of Welfare without giving the appellant an opportunity to examine the report or its maker.

Louisiana Courts have held such reports inadmissable in custody proceedings when proper and timely objections were made. However, in this case, the trial judge stated that he would request and consider such a report prior to making his decisions and the appellant made no objection. The appellant may not initially complain on appeal of an alleged error by the trial judge when no objection had been made in the trial court. Meyers v. Meyers, La.App., 324 So.2d 562 (1st Cir. 1975).

For the above reasons, the judgment of the Trial Court is affirmed. Cost to be paid by appellant.

AFFIRMED.


text:
    William T. EDDINS v. Gladys E. SALASSI.
    No. 11225.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Gus A. Fritchie, Jr., Slidell, for plaintiff-appellee.
    Tom F. Phillips and Frank Coates, Jr., Baton Rouge, for defendant-appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for partition by licitation. Defendant appealed suspensively from a default judgment.

The only issue is whether plaintiff sufficiently proved that he was entitled to a partition of the property by licitation.

We reverse.

Plaintiff alleged that he was the owner of an undivided five-sixths interest in a tract of land in St. Tammany Parish; that the defendant owned the other undivided one-sixth interest; that the property was insusceptible of division in kind because of its peculiar shape; and that plaintiff and defendant were unable to agree on a nonjudicial partition of the property.

When defendant failed to file any pleadings, a preliminary default was confirmed.

LSA-C.C. Articles 1339 and 1340 read as follows:

Art. 1339. “When the property is indivisible by its nature, or when it can not be conveniently divided, the judge shall order, at the instance of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice and advertisements prescribed by law, and in the manner hereinafter prescribed.”
Art. 1340. “It is said that a thing can not be conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it.”

The courts have consistently interpreted these articles to mean that a partition in kind must be ordered unless it is proved that the property is indivisible by its nature, or that loss or inconvenience to one of its owners would be the consequence of dividing it. Babineaux v. Babineaux, 237 La. 806, 112 So.2d 620 (1959).

In DeLee v. DeLee, 328 So.2d 763 (1st Cir. 1976), this court refused a partition by lici-tation. One of the plaintiffs and an expert in surveying and real estate testified, after having walked the property to become familiar with its topography, that it was not susceptible to division in kind. The court said the plaintiffs had not presented sufficient facts to support their position.

The sole proof in this case consists of the testimony of the plaintiff, who testified that the property was triangular in shape and could not be divided into two equal portions. He concluded that the property could not be divided in kind. There were no facts to support this conclusion.

The fact that this was a confirmation of a default judgment does not lead to a contrary result. LSA-C.C.P. Article 1702 states in part: “A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case See McCarthy v. Plaisance, 289 So.2d 156 (1974). Further, the presumption of correctness on a default judgment does not apply because the testimony was transcribed and forms a part of the record. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972).

The judgment is reversed; plaintiff is cast with all costs.

REVERSED.

      . As stated above plaintiff alleged he was the owner of a five-sixths interest.


author: ELLIS, Judge:

text:
    Michael DORÉ v. LHHRA, DIVISION OF FAMILY SERVICES.
    No. 11228.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Donald C. Theriot and Dennis R. Whalen, Baton Rouge, Attorney for appellant Michael Doré.
    Charles Castille, Baton Rouge, Attorney for Appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is an appeal by Michael Doré from an opinion of the State Civil Service Commission, which affirmed his discharge by Roy E. Westerfield, Director of the Division of Family Services of the Louisiana Health and Human Resources Administration, from his position as Family Service Eligibility Worker.

Mr. Doré was discharged, effective July 3, 1975, by letter dated July 1, 1975, for a number of reasons. He was first charged with deliberately making false entries in the records kept by him, by indicating therein that he had made home visits to three of his clients when, in fact, he had not done so. The clients named were Louise Woods, Barbara Ann Condol, and Elizabeth Stewart.

Mr. Doré was further charged with making false entries in CR — 8 forms, and failing to adhere to instructions, by not making narrative entries in each of his records. The letter charges that he indicated making narrative entries in 27 cases in which he in fact failed to do.

Finally, he was charged with failure to complete reconsideration of the cases assigned him in June, 1975. Specifically, he is charged with failing to complete 26 out of 30 cases assigned him. Eight other cases, carried over from the previous month, were either completed by others or required closure only.

Mr. Doré’s appeal, reciting the grounds therefor, was timely made by letter of July 29, 1975. On August 20, 1975, Mr. Doré attempted to add an additional ground for the appeal. The appointing authority filed a motion for summary disposition of the amendment to the appeal, which was granted by the Commission. No evidence relative thereto was permitted at the hearing. Mr. Doré complains of the ruling of the Commission in this respect.

Civil Service Rule 13.11(d) requires that a notice of appeal must:

“Contain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal. Where discrimination is alleged to be a basis for appeal, specific facts supporting the conclusion of discrimination must be alleged in detail. . . .”

Rule 13.12(a) states that no appeal shall be effective unless properly filed within 30 calendar days after the date on which appellant received notice of the action complained of. Rule 13.14(a)(3) states:

“(a) At any time after the docketing of an appeal a written request may be filed by any interested party for summary disposition thereof on any of the following grounds:
“3. That the appeal has not been made in the required manner or within the prescribed period of delay.”

Under those rules the Commission found that an appeal is limited to the grounds alleged within the appeal delay. Mr. Doré argues that under the ruling of this Court in Bennett v. Division of Administration, 307 So.2d 118 (La.App. 1st Cir. 1975), his amendment is timely and must be considered. The Bennett case has no application to this case, because, in that case, no objection was raised to the amendment, whereas in the instant case, a proper motion for summary judgment was filed. We do not find the interpretation placed on the above rules by the Commission to be unreasonable. The contention is therefore without merit.

The findings of fact of the Commission were as follows:

“1. Appellant made entries in the records of Louise Woods and Barbara Ann Condol declaring that he had made visits to their homes, but he did not make such visits.
“2.' Appellant did not make required narrative reports and file them in the records of the cases which he was handling.
“3. Appellant did not complete the work assigned to him for the making of narrative reports on his April listing of cases within the time required for such completion, and, though he was given an extension of time for such work until the month of May, these reports were not prepared and filed up to the time of his separation.
“4. The quality and quantity of work accomplished by appellant deteriorated after August, 1973 until his separation.”

With respect to the first finding of fact, it seems clear that Mr. Doré did not visit the home of Barbara Ann Condol, but did make an entry on her CR-8 form that he had done so. Louise Woods first testified that she had only had one home visit during her two years on welfare, which had taken place two weeks before the hearing. On questioning by a commission member, she then recalled two other workers making home visits. Finally, she recalled one visit by Mr. Doré. Her CR-8 form shows that Mr. Doré recorded one home visit with Mrs. Woods. The record therefore does not support the conclusion that Mr. Doré did not visit Mrs. Woods.

It is undisputed that Mr. Doré did not make many narrative entries in his April scroll of cases, although he indicated having done so on the CR-8 forms in the files. Mr. Doré admits not having made the entries. However, he testified that he was given permission to file them late by Mrs. Lynn True Belote, his supervisor, because he was overworked and was falling behind. He stated that he was fired before he had a chance to do the narratives. He also testified that he indicated “narrative filed” in the CR-8 forms merely as a device to indicate that the consideration of the case was completed, and that Mrs. Belote knew what he was doing.

Mrs. Belote acknowledged that Mr. Doré was behind in his April work, and that she gave him permission to complete his recon-siderations without filing the narratives immediately. She testified that she did not give him permission never to file them at all, and in May, told him to file them as soon as possible, but without giving him a deadline by which to do so. Accepting Mrs. Belote’s testimony as true, it appears that the Commission erred in finding that Mr. Doré was “given an extension of time for such work until the month of May.” Otherwise their findings of fact Nos. 2 and 3 are sustained by the record.

Finding of fact No. 4 is not related to any of the charges made by the letter of dismissal, and is therefore irrelevant.

The Commission failed to make any findings of fact as to Mr. Doré’s defense of discrimination relative to the size of his work load; his allegation that other workers had failed to make home visits and, with the knowledge of their supervisors, had made false entries relative thereto; and that the reasons listed for his dismissal were not the true reasons for same.

Finally, the Commission totally failed to mention the third charge made against Mr. Doré in the letter of dismissal, relative to his June cases, and the defense made thereto by Mr. Doré.

We do not know whether the Commission would have affirmed the dismissal of Mr. Doré if their findings of fact had been in accordance with the findings of fact made herein. Neither can we be sure what the Commission would have decided had it considered all of charges levelled against Mr. Doré, and the defenses offered thereto.

We are of the opinion that the interest of justice would best be served by remanding the case to the Civil Service Commission for a full consideration of the legal and factual issues presented by the record. No new hearing is required, unless, in the discretion of the Commission, it would like to hear additional evidence on any of the points at issue.

The case is therefore remanded to the Civil Service Commission for further consideration, in accordance with this opinion, and in accordance with law. Taxing of all costs will await the final determination of the matter on its merits.

REMANDED.


text:
    Charles R. JOHNSON v. BATON ROUGE MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD.
    No. 11229.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Kenneth L. Riche, Baton Rouge, for plaintiff Charles R. Johnson, appellant.
    Joseph Keogh, Parish Atty., Baton Rouge, for defendant, Baton Rouge Municipal Fire and Police Civil Service Bd., appel-lee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal by Charles R. Johnson from a judgment of the District Court upholding his dismissal from the Baton Rouge City Police Department. We note, ex pro-prio motu, out lack of jurisdiction because the appeal was not timely perfected.

Judgment in favor of the defendant-ap-pellee, the Baton Rouge Municipal Fire and Police Civil Service Board, and against the plaintiff-appellant was rendered and signed on May 24, 1976. A motion for a new trial was timely filed and thereafter denied by the Court on the date of the hearing, June 18, 1976.

Appellant obtained an order for a devolu-tive appeal on September 16,1976, and filed an appeal bond in the proper amount on November 9, 1976.

At that time, La. C.C.P. Art. 2087 provided that a devolutive appeal could be taken, and security therefor furnished, only within ninety days of the District Court’s refusal to grant a timely application for a new trial.

The delay allowed appellant to perfect his appeal began to run on June 19, 1976, and ended on September 17,1976. The filing of the appeal bond on November 9, 1976, was therefore untimely.

The appeal is therefore dismissed at appellant’s cost.

APPEAL DISMISSED.


text:
    HERMAN J. DOWNEY & SONS, INC. v. LOUISIANA OIL & REFINING COMPANY et al.
    No. 11230.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Harvey H. Posner and Felix Weill, Baton Rouge, of counsel for plaintiff-appellee Herman J. Downey and Sons, Inc.
    William G. Whatley, Baton Rouge, of counsel for defendants-appellants Louisiana Oil & Refining Co., et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff sued defendant on a $15,000.00 promissory note given in compromise settlement of a claim for defective merchandise. Defendants alleged a failure of consideration, and reconvened for $10,000.00 already paid plaintiff. Defendants appealed from the judgment in favor of the plaintiff for the full amount of the note.

Defendants contend the trial court erred in refusing to admit evidence of a failure of consideration and of a collateral oral agreement.

We affirm.

To avoid litigation, the parties entered into a settlement agreement of a dispute as to fitness and merchantability of antifreeze sold by defendant to plaintiffs. The pertinent parts said:

“RELEASE OF ALL CLAIMS”
FOR AND IN CONSIDERATION OF the sum of Ten Thousand and No/100 ($10,000.00) Dollars in cash; and Fifteen Thousand and No/100 ($15,000.00) Dollars, represented by a thirty-day note signed by Louisiana Oil and Refining Co., Inc., and endorsed personally by Edward W. McCrary, III, the receipt of which is hereby acknowledged, Herman J. Dow-ney & Sons, Birmingham, Alabama, and Roquemores, Inc., Orlando, Florida, do hereby release and forever discharge Louisiana Oil and Refining Co., Inc. and Edward W. McCrary, III, and officers, directors, and agents therein of each of the above from any and all actions, claims, damages, costs, expenses and any other claims of any nature on account of or growing out of the sale of Prestige Antifreeze during the fall of 1974.
It is understood that this settlement is a compromise and the payment is not to be construed as an admission of liability of the party or parties released . .”

When the defendants made no payment on the note, plaintiff filed suit.

At trial plaintiff introduced the note and the related settlement agreement, the authenticity of which was stipulated to by defendants. The pretrial order listed the following established facts:

“A) On February 3, 1975, defendant Louisiana Oil & Refining Company, Inc., made and executed and delivered to plaintiff a certain promissory note, of which plaintiff is the holder and owner, for the principal sum of $15,000, payable on demand to the order of plaintiff at Post Office Box 10096, Birmingham, Alabama, and stipulating to bear interest at the rate of 8% per annum from its date until paid, and providing that, in the event said note or interest thereon were not paid at its maturity and should be placed in the hands of an attorney at law for collection or should be sued on, the maker would pay 25% additional of the amount of both principal and interest as attorney’s fees.
B) Said note is endorsed personally and individually by defendants Edward W. McCrary, III, and Henrietta Schoen (Mrs. Edward W., Ill) McCrary.
C) Said note remains unpaid.
D) For and in consideration of the sum of $10,000 in cash and the aforesaid note, plaintiff (and Roquemores, Inc.) granted defendants a release of their claims against defendants growing out of the sale of Prestige Antifreeze during the fall of 1974.”

Defendants then attempted to introduce evidence to show that the parties had entered into a collateral agreement, supplementing the original written compromise. The court refused to admit the evidence. Defendant then put the testimony in under an offer of proof.

Pretermitting the question of whether parol evidence was admissible “against or beyond what is contained in the Act,” the evidence introduced under the offer of proof does not support defendants’ contention that plaintiff refused to allow the unsold antifreeze to be picked up. Mr. James S. Christie, a former employee of plaintiff, testified that Downey & Sons, Inc. would be delighted to have defendant pick up the merchandise, because they were having to pay storage charges. Further, defendants offered no testimony to show that they had ever made any attempt to pick up the merchandise.

Defendants also contend that parol evidence should be admissible to show failure of consideration on the plaintiff’s principal demand and to support their reconventional demand.

This contention is based upon the allegation that plaintiff has not returned the unsold antifreeze. The only consideration proved for the cash and note was the agreement by plaintiff to discharge defendant from all claims arising out of the sale of Prestige Antifreeze. The evidence does not show that plaintiff ever agreed, as consideration for the note, to return the unsold antifreeze.

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

AFFIRMED.

      . LSA-C.C. Art. 2276. “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.”
      See also Trask v. Lewis, 258 So.2d 603 (1st Cir. 1972) in which this court said:
      “It is true that parole evidence can be received to determine the intent of the parties to an agreement of compromise. Moak v. American Automobile Insurance Company, 242 La. 160, 134 So.2d 911 (1961). However, it is also true that parole evidence may not be received to prove whether a writing is, in fact, a compromise. A writing evidencing a compromise must be complete in itself, and show within its four corners the intention of the parties to compromise their differences.”


text:
    Joseph M. ALFONSO et al. v. Frances Alfonso RAGUSA et al.
    No. 11379.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Reginald McIntyre, Hammond, for appellant.
    Ronald A. Curet, Hammond, for appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

We issued a rule to show cause why this appeal should not be dismissed for failure by the appellant to file an appeal bond.

Final judgment was signed on October 12, 1976, and notice of judgment was forwarded to all parties on the same day. No appeal bond has been filed, although more than five months have now elapsed since the date of the judgment.

We are therefore without jurisdiction of the appeal. See Articles 2087 and 2088, Code of Civil Procedure.

The appeal is therefore dismissed at appellant’s cost.

APPEAL DISMISSED.