author: BARNETTE, Judge. PER CURIAM.

text:
    FIREMAN’S FUND INSURANCE COMPANY v. W. H. MYRICK et al.
    No. 10307.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Rehearing Denied Aug. 26, 1975.

      E. Drew McKinnis, McKinnis & Juban, Baton Rouge, for defendants and third party plaintiff-appellant.
    Charles W. Franklin, Franklin, Moore & Walsh, Baton Rouge, for plaintiff-appellee.
    J. Walter Ward, Jr., Christovich & Kearney, New Orleans, for third party defendant-appellee Highlands Ins. Co.
    Before SARTAIN, ELLIS and BAR-NETTE, JJ.
   BARNETTE, Judge.

The plaintiff, appellee, Fireman’s Fund Insurance Company (Fireman’s) filed this suit against W. H. Myrick, Helen M. Myr-ick and Myrick Construction Co. (Myr-icks) for the recovery of attorney’s fees incurred in the defense of certain actions brought against Myricks and Fireman’s. A third party action was brought by Myr-icks against Highlands Insurance Company for indemnification of any amount for which they might be cast in judgment to Fireman’s.

Judgment was rendered in favor of Fireman’s against W. H. Myrick Construction Company and W. H. Myrick and Helen M. Myrick in solido in the principal sum of $1,399.22. The third party demand against Highlands was denied and dismissed.

From these adverse judgments the Myr-icks have appealed.

A statement of the case, the pertinent facts and the issues are well set forth in the trial judge’s written reasons for judgment which we copy in full as follows :

“WRITTEN REASONS FOR JUDGMENT

“This is a suit seeking to recover attorney’s fees incurred by the plaintiff, Fireman’s Fund Insurance Company (referred to hereafter as ‘Fireman’s’), due to the failure of its indemnitors, W. H. Myrick Construction Company, W. H. Myrick, and Helen M. Myrick (referred to hereafter collectively as ‘Myricks’), to comply with certain obligations owed under a general indemnity agreement. The defendants filed a third party demand against Highlands Insurance Company (referred to hereafter as ‘Highlands’).

“The facts are essentially as follows: Myrick Construction Company, Inc. was the general contractor for the construction of the Community Coffee Company manufacturing plant in Port Allen, Louisiana. Fireman’s issued a surety bond in behalf of Myrick Construction Company in the amount of $1,278,000.00, covering the project. Pursuant to a separate indemnity agreement, Myricks agreed to indemnify Fireman’s for any loss, costs, damages, attorney’s fees, and other expenses in connection with the execution of the bond.

“In connection with the Community Coffee project, two suits were filed against the Contractor, W. H. Myrick Construction Company, and against Fireman’s on their bond. Other liens were filed against the project.

“Fireman’s contacted the Myricks in an attempt to get them to defend the suits and to provide Fireman’s with information relative to the validity of the claims and the ability of the Myricks to pay the claims. The Myricks refused to, do this for some time and Fireman’s retained their own attorney. Eventually, the Myricks retained counsel to defend both parties. The suits were later settled and the claims paid.

“Highlands, who had bonded a subcontractor, Cliff Hughes Company of Louisiana, Inc., settled the suit filed by Evans Electric Company and the Myricks settled the other suit and paid off the liens. Fireman’s filed this suit seeking recovery of the sums expended for an attorney to represent them in the two suits. The Myr-icks, as third party plaintiffs, filed a third party demand against Highlands, alleging that any liability which they might have was a result of Highlands’ failure to timely pay the claims of the supplier.

“The deposition of John Carruth was submitted by the plaintiff and marked for identification as Fireman’s Fund — 18. Mr. Carruth was not present and defendants objected to introduction of the deposition on the ground that it was hearsay. The Court withheld ruling on the admissibility and now wishes to do so. Mr. Carruth was in Texas and unable to attend the trial due to illness. Notice to take the deposition of Mr. Carruth (Fireman’s Fund — 19) was served on opposing counsel by the plaintiff on December 19, 1973. No objection was made to the notice until the attempted introduction of the deposition.

“LSA-C.C.P. Art. 1428 provides that the deposition of a witness may be used for any purpose if the witness resides more than 100 miles from the place of the trial or if the witness is unable to attend due to sickness or infirmity. Mr. Carruth resides in Dallas, Texas. Also, he was unable to attend the trial due to illness. Thus, under LSA-C.C.P. Art. 1428, his deposition may be used for any purpose. Argument was made on behalf of the defendants that they could not attend the taking of the deposition because the cost of going to Dallas was prohibitive in relation to the amount of the principal demand. As previously stated, defendants had notice on December 19, 1973, that the deposition was to he taken. Under the provisions of LSA-C.C.P. Art. 1452, defendants could have moved for a protective order limiting the taking of the deposition upon a showing of good cause. Defendants failed to seasonably make the aforementioned motion. Thus it appears that the deposition is admissible under the provisions of LSA-C.C.P. Art. 1428 and defendants by failing to seasonably move for a protective order under the provisions of LSA-C.C.P. Art. 1452, are precluded from now asserting undue hardship in attending the taking of the deposition.

“Mr. Carruth is Secretary of Fidelity and Surety Claims for the plaintiff. His deposition shows that claims were made on the Community Coffee project for which Fireman’s was the surety. These claims were made by laborers and suppliers of materials. In order to ascertain whether the claims were valid, Fireman’s sought information from the defendants relative to the status of the claims and the ability of the Myricks to pay the claims. The My-ricks refused to provide the information. Fireman’s was therefore required to retain an attorney in order to protect itself. Subsequently, a suit was filed by Evans Electrical Company, a supplier of Hughes-Walsh Company (later known as Cliff Hughes Company of Louisiana, Inc.), a subcontractor on the Community Coffee Project. Plaintiff then requested that the Myricks defend it as well as Myrick Construction Company in the suit. This request was refused and plaintiff was required to retain an attorney to prepare pleadings and engage in negotiations.

“Fireman’s was subsequently notified by Mr. George Womack that on behalf of the Myricks, he would defend Fireman’s in the suit.

“Thereafter, liens were filed on the project by other materialmen and another suit was filed by American Sprinkler Company against W. H. Myrick Construction Company and Fireman’s for materials purchased for the job. The Myricks eventually settled the claim, but Fireman’s hired an attorney to file motions in the case.

“The general indemnity agreement (Fireman’s Fund — 8) was introduced by plaintiff. The agreement named W. H. Myrick Construction Company, W. H. Myrick, individually, and Helen M. Myr-ick, individually, as indemnitors. The agreement was signed by Mr. and Mrs. Myrick in their individual capacities and by Mr. Myrick as agent for Myrick Construction Company. The agreement contained the following clause:

‘The indemnitors will indemnify the Surety against any and all liability, loss, damages, fees of attorneys and other expenses which the Surety may sustain or incur by reason of, or in consequence of the execution of such bonds and any renewal, continuation or successor thereof, including but not limited to, sums paid or liabilities incurred in settlement of, and expenses paid or incurred in connection with claims, suits, or judgments under such bonds, expenses paid or incurred in enforcing the terms hereof, in procuring or attempting to procure release from liability, or in recovering or attempting to recover losses or expenses paid or incurred, as aforesaid.’

“In Employers’ Liability Assurance Corporation, Ltd. v. Riverside Warehouses, Inc. 126 So.2d 185 (La.App. 4th Cir., 1961), the Court interpreted a similar indemnity clause. The Court found that the wording of the clause was unambiguous and the indemnitor was liable for the amount of the expenditures of the surety.

“The same appears to be true in the instant case. Under the unambiguous language of the indemnity agreement, the defendants are liable to Fireman’s for all attorney fees expended by Fireman’s in connection with the bond.

“From the testimony adduced at trial and the exhibits introduced it appears that Fireman’s made every reasonable attempt to secure information regarding the ability of the defendants to pay off the claims. This information was not furnished, and it appears that Fireman’s was justified in hiring its own attorney to protect its interests. Fireman’s had already incurred its legal fees when the Myricks finally recognized their obligation under the indemnity agreement. Fireman’s Fund — 17 is a check from Fireman’s to Mr. Charles W. Franklin for legal services in connection with the Community Coffee project. The check is for $1,399.22. The amount of the fee and the reasonableness, thereof are substantiated by an itemized statement of account (Fireman’s Fund — 1) and individual time sheets (Fireman’s Fund — 2 through 7). The fees appear to have been incurred in connection with the Community Coffee project and they result directly from the Myricks’ failure to recognize their obligation under the indemnity agreement.

“Accordingly, it appears that plaintiff is entitled to judgment against the defendants in the amount of $1,399.22.

“The Myricks, as third party plaintiffs, filed a third party demand against Highlands Insurance Company. They allege that any liability which they might have is a result of the failure of Highlands to timely pay off the claims of Evans Electric Company.

“Highlands issued a bond covering the performance of Cliff Hughes Company of Louisiana, Inc. Cliff Hughes Company was a subcontractor on the Community Coffee project. Basically, two bonds were issued.

“The first bond was a Subcontract Performance Bond. It named W. H. Myrick, General Contractor, as the obligee. Hughes-Walsh Company, Inc. (later known as Cliff Hughes Company of Louisiana, Inc.) was the principal. Highlands was named as the surety. The bond guaranteed that the principal would fulfill all the undertakings of the subcontract with the obli-gee.

“The second bond was a Subcontract Labor and Material Payment Bond. The same parties were named as obligee, principal, and surety as in the Subcontract Performance Bond. In essence this bond guaranteed that all materialmen and laborers of the subcontractor would be paid. This bond was for the benefit of such claimants and allowed them to sue directly on the bond.

“The bonds of Highlands are not statutory in nature and must be construed in accordance with their own terms. See, e. g., Gateway Barge Line, Inc. v. R. B. Tyler Company, 175 So.2d 867 (La.App. 1st Cir. 1965).

“The law of Louisiana is clear that there is no right to recover attorney’s fees in any claim, unless provided for by specific law or by the contract itself. Chauvin v. LaHitte, 229 La. 94, 85 So.2d 43 (1956).

“The bonds issued by Highlands contain no specific provision for the payment of attorney’s fees. Thus, if the Myricks had sued for their own attorney’s fees on the bond they would not be able to collect. See, e. g., Walters Air Conditioning Co. v. Firemen’s Fund Ins. Co., 252 So.2d 919 (La.App. 2nd Cir. 1971).

“The Myricks, as third party plaintiffs, do not seek their own attorney fees. What the Myricks seek here is an amount they contend they are required by judgment to pay due to the failure of the principal, Cliff Hughes Company of Louisiana, Inc., to faithfully perform his subcontract. This they contend is covered by the Sub-, contract Performance Bond.

“Third party defendant, Highlands, filed peremptory exceptions of no right of action directed to W. H. Myrick Construction Company and Helen M. Myrick, as well as exceptions of prescription and no cause of action directed to all three plaintiffs-in-reconvention. These exceptions were to be heard and tried in connection with the trial on the merits.

“The thrust of the exception of no right of action is that only W. H. Myrick was named as obligee on the bond. Helen M. Myrick and Myrick Construction Company, Inc. are not named as obligees in the bond. Therefore, they are without a right of action on the bond. Accordingly, the exception of no right of action will be sustained.

“The exception of prescription is based on Article (3) (a) of the Subcontractor Labor and Material Payment Bond, which only allows suit to be brought on the bond within one year from the date the principal last performed work under its subcontract. The bond sued on, however, is the Subcontract Performance Bond, which contained ho similar provision. Therefore, the exception of prescription will be overruled.

“The thrust of the exception of no cause of action is that the principal demand is for failure of the Myricks to comply with a completely separate agreement to furnish information and defend suits for their surety, Fireman’s. Highlands was not a party to this agreement. Had the Myricks complied with the terms of their indemnity agreement, they would not have become liable for damages. The obligation breached by the Myricks was a separate obligation undertaken by them and was not the obligation of Highlands. Therefore, it appears that the Myricks have no cause of action against Highlapds and the exception of no cause of action will be sustained.

“For the foregoing reasons it appears that the plaintiff, Fireman's Fund Insurance Company, Inc., is entitled to judgment in its favor and against the defendants, W. H. Myrick, Helen M. Myrick, and Myrick Construction Company, Inc., in solido, in the amount of $1,399.22. Third party defendant, Highlands Insurance Company, Inc., is entitled to judgment in its favor and against the third party plaintiffs, W. H. Myrick, Helen M. Myrick, and Myrick Construction Company, Inc., sustaining the exceptions of no right of action and no cause of action and dismissing the third party demand. Costs of this proceeding are to be borne by defendants and third party plaintiffs, W. H. Myrick, Helen M. Myrick, and Myrick Construction Company, Inc., in solido.

“Judgment will be signed accordingly. * * * »

The ruling of the trial judge on the admissability of the Carruth deposition was correct.

The issue with respect to the alleged excessive charge for attorney’s fees which counsel for appellants has strenuously argued was adjudged well within the limits of the discretionary authority of the trial juuge. We concur in his judgment that the fees charged were within reasonable limits. The judgment in favor of Fireman’s Fund against the Myricks, in solido, is correct and will be affirmed.

The obligation of Myricks to Fireman’s Fund under the terms of the indemnity agreement is clear and unequivocal as to expenses, costs and attorney’s fees. They defaulted on that obligation and incurred the liability for which Fireman’s brought this suit. That issue should not be confused with the third party suit of Myricks against Cliff Hughes and Highlands, which is based on an entirely separate and independent contractual relationship.

It will be noted from the trial judges reasons for judgment, supra, that he said:

“The Myricks, as third party plaintiffs, do not seek their own attorney fees. What the Myricks seek here is an amount they contend they are required by judgment to pay due to the failure of the principal, Cliff Hughes Company of Louisiana, Inc., to faithfully perform his subcontract. This they contend is covered by the Subcontract Performance Bond.”

This is in error. What they seek is recovery of costs and expenses incurred as the result of Cliff Hughes and Highlands default on the “SUBCONTRACT LABOR AND MATERIAL PAYMENT BOND.” True, the subcontract “Performance Bond” executed by Hughes and Highlands naming W. H. Myrick as obligee makes no provision for payment of attorney fees or any other costs or expenses in the event of default and a suit thereon. But this third party action is not a suit on that bond, but on the Subcontract Labor and Material Payment Bond which provides in pertinent part as follows:

“The above-named Principal and Surety hereby jointly and severally agree with the Obligee that every claimant as herein defined, who has not been paid in full before the expiration of a period of Ninety (90) days after the date on which the last of such claimant’s work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The Obligee shall not be liable for the payment of any costs or expenses of any such suit.” (Emphasis added)

This is clearly a stipulation pour autrui in favor of labor and material “claimants.” LSA-C.C. art. 1890. This provision clearly authorizes a “claimant” to file suit on the bond for enforcement and collection of his claim through judgment and execution against the principal and surety. It clearly provides also that in the event a claimant should avail himself of that authority, — as Evans Electrical Supply, Inc. did in this case: “The Obligee [Myrick] shall not be liable for the payment of any costs or expenses of any such suit.” (Emphasis added) Myrick did incur expenses in the form of attorney’s fees as a result of the suit by a claimant. This expense was a direct consequence of the failure of Cliff Hughes, the principal and Highlands, the surety not having timely paid the claims. Cliff Hughes and Highlands were therefore in default in their obligation to the named obligee, Myrick.

This is not an attempt by Myrick to collect attorney’s fees on account of his third party action for enforcement of the terms of the bond executed for his protection as obligee. It is instead a suit for recovery of expenses, albeit attorney’s fees, incurred by him as a result of Cliff Hughes and Highlands having defaulted on their Subcontract Labor and Material Payment Bond executed for the benefit of “claimants” and to hold harmless the “obligee” Myrick. The trial judge failed to make this distinction and the cases cited are not relevant to the issue here.

Myricks’ default to Fireman’s did not enlarge Highlands’ obligation to Myr-ick. There was no duplication of attorney’s fees insofar as the Evans suit was concerned.

Among the issues raised on this appeal is the alleged error of the trial judge in sustaining the exception of no right of action of the third parties plaintiff (Myricks) as to Myrick Construction Company, Inc. and Helen M. Myrick. The point at issue is that the “Performance Bond” and the “Subcontract Labor and Material Payment Bond” issued by Highlands each named as obligee, “W. H. Myrick, General Contractor.” A strict construction was applied and the court held that the corporation, Myrick Construction Company, Inc. and Helen M. Myrick were not named as obli-gees and therefore had no right of action against the bonding company, Highlands.

Counsel for the third party plaintiffs (Myricks) argues that the slight variation in naming the obligee was of no consequence; that it was the intention of all the parties that Highlands was to hold harmless the Myrick Corporation as indicated by the reference to Mr. Myrick as “General Contractor” with the knowledge of all concerned that it was his company which was engaged for the construction project. He cites Article 432 of the Civil Code which is as follows:

“Corporations must not only be authorized by the Legislature, or established according to law, but a name must be given to them; and it is in that name that they must sue or be sued, and do all their legal acts, although a slight alteration in this name be not important.” (Emphasis added)

The point is well taken and we agree with appellant that it was the intention of the parties to hold harmless the contractor, and it is of no importance whether the contractor was identified by his personal name or his corporate name. The exception of no right of action as against Myrick Construction Company, Inc. should have been overruled. As to Helen M. Myrick, individually, the exception of no right of action for her third party suit under the terms of the bond was unquestionably valid, since she was not named as obligee, and the judgment sustaining the exception as to her was correct.

The judgment overruling the plea of prescription was correct and will be affirmed, but for a different reason from that given by the trial judge. The trial judge noted in his “Reasons for Judgment,” supra, that the plea of prescription was based on Article (3) (a) of the SUBCONTRACT LABOR AND MATERIAL PAYMENT BOND and said:

“The bond sued on, however, is the Subcontract Performance Bond, which contained no similar provision.”

In this statement the trial judge was in. error. The third party suit by Myricks against Highlands and Cliff Hughes was based on their default on the SUBCONTRACT LABOR AND MATERIAL PAYMENT BOND, as we have discussed above. If there is any ambiguity in the pleadings to indicate otherwise it will be disregarded under the authority of LSA-C.C.P. art. 2164. Section (3) (a) of the bond referred to is as follows:

“(3) No suit or action shall be commenced hereunder by any claimant,
(a) After the expiration of one (1) year following the date on which Principal ceased work on said subcontract it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.”

Clearly this prescriptive limitation applies only to “claimants” under the authority of the bond. The bond defines a “claimant” as follows:

“A claimant is defined as one having a direct contract with the Principal for labor, material, or both, used or reasonably required for use in the performance of the contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the subcontract.”

The prescriptive section, therefore, does not apply to the “Obligee” Myrick, and for that reason, if for no other, the exception of prescription should have been overruled.

A suit was filed by American Sprinkler Co., Inc. against W. H. Myrick Construction Co., Inc. and Fireman’s Fund for $6,000 alleged balance due on its contract with W. H. Myrick Construction Co., Inc. for certain work done by it on the Community Coffee Company job.

Fireman’s Fund through its attorneys filed an answer, denying for want of sufficient information, the allegations of American Sprinkler. It also sought by third party action in that suit indemnification from Myrick for any judgment which might be rendered against it with all costs and expenses incidental thereto, and specifically for attorney’s fees regardless of the outcome of the principal action. It also filed interrogatories in that suit. The record in that suit filed in evidence in this proceeding indicates no other filings or proceedings in that case. The claim of American Sprinkler, plaintiff, was settled by Myrick and no further proceedings were had in that suit. Fireman’s Fund, plaintiff in this suit seeks recovery of the attorney’s fees incurred in that action, as well as those incurred in the Evans Electrical Supply Inc. suit.

It must be noted that the American Sprinkler Company suit was under a contract with Myrick and did not involve Cliff Hughes and Highlands. It is necessary therefore to deduct from the total fees owed by Myrick to Fireman’s Fund, the amount thereof which were incurred in defense of the American Sprinkler Co. suit, since that amount cannot be included in the third party judgment against Highlands.

We have attempted through review of the testimony and examination of the exhibits filed in evidence to determine which of the charges itemized should be charged to the defense of the American Sprinkler Co. suit. We have related the dates of entries of charges on the itemized statement to dates of filings in the American Sprinkler Co. suit in making that determination.

That suit was filed December 11, 1970 and service made on Fireman’s Fund on December 21. Fireman’s answer and third party petition was filed in January, 1971 (date not shown). On the itemized statement of Fireman’s attorneys filed in evidence is an item dated December 9, 1970 “Conference with Mr. John Carruth, Mr. Edgar Thomas, relative to American Sprinkler Account, 2 hours, $80.00.” This charge corresponds in date and is specifically identified with the American Sprinkler litigation. An item dated January 15, 1971 for “Correspondence with Mr. John Carruth, preparation and filing with Clerk of Court answer and third party petition on behalf of Fireman’s Fund. 1 hour, $40.00.” There are entries of charges of $20.00 each dated respectively February 22, March 11, June 30 and July 14, 1971, relating to conferences with Mr. Carruth and the Sheriff’s office pertaining to difficulty in obtaining service on Mr. Myrick. The testimony relative to Mr. Myrick’s absence from the state seems to substantiate the reason' for these conferences. Apparently service was made on him on July 6, 1971 and the item entry of report to Mr. Car-ruth on July 14 relative to the service on Myrick appears in proper chronology, and obviously relates to the American Sprinkler Co. suit. No other entries in the itemized statement can be identified with proceedings in that suit nor is there any testimony of help to us in that regard.

Accordingly we will deduct these items totalling $200.00 from the total amount of attorney’s fees incurred by Fireman’s for which the third party plaintiffs, W. H. Myrick and Myrick Construction Company, Inc. are entitled to be reimbursed by Highlands. Accordingly the third party judgment will be $1,199.22.

In arriving at this figure we are aware of the possibility of some error or omission which might affect the net result. Whatever error may exist in this regard would be too insignificant to warrant a remand for further trial on this issue. The delay and expense involved would not be in the best interest of ■ any party, nor serve the ends of justice. Furthermore, an allowance of $200 for the attorney’s fees in connection with the American Sprinkler Co. suit is well within reason for the services rendered by Fireman’s attorneys in that case.

The judgment of the trial court is silent with respect to the third party suit insofar as it names Cliff Hughes Company of Louisiana, Inc., as a third party defendant. This omission having not been objected to, the judgment stands as one of dismissal of the third party suit as against Cliff Hughes. LaHitte v. Acme Refriger ation Supplies, Inc., 192 So.2d 172 (La.App. 4th Cir. 1966), writ refused 250 La. 99, 194 So.2d 98 (1967), cert. denied 389 U.S. 821, 88 S.Ct. 44, 19 L.Ed.2d 73, rehearing denied 389 U.S. 1025, 88 S.Ct. 583, 19 L.Ed.2d 674; Guilbeau v. Guilbeau, 308 So.2d 435 (La.App. 3d Cir. 1975); Ree Corporation v. Shaffer, 246 So.2d 313 (La.App. 1st Cir. 1971), affirmed 261 La. 502, 260 So.2d 307 (1972); Wendel v. Dixon Real Estate Company, 232 So.2d 791 (La.App. 4th Cir. 1970) writ refused 256 La. 249, 236 So.2d 29 (1970).

The motion and order for appeal and the notice of appeal significantly fail to mention Cliff Hughes Company while specifically naming Highlands Insurance Co. and the judgment in its favor dismissing the third party suit against it. From that portion of the judgment the appeal was expressly devolutive. It was made suspensive as it related to Fireman’s Fund. There was no appeal from the judgment dismissing Cliff Hughes, and though incorrect, it is now final.

The judgment as appealed in favor of Fireman’s Fund Insurance Company and against W. H. Myrick Construction Company, W. H. Myrick and Helen M. Myrick, in solido, in the principal sum of $1,399.22, is affirmed. The judgment in favor of Highlands Insurance Company insofar as it sustains the exception of no right of action as to Helen M. Myrick and dismissing the third party action as to her is affirmed. The judgment overruling the exception of prescription is affirmed. The judgment sustaining the exception of no right of action as to Myrick Construction Company, Inc., is annulled and reversed and the judgment sustaining the exception of no cause of action and dismissing the petition of the third party plaintiffs, W. H. Myrick and Myrick Construction Co., Inc. is annulled and reversed and judgment is hereby rendered in favor of W. H. Myrick and Myrick Construction Company, Inc., third party plaintiffs, against Highlands Insurance Company, third party defendant in the full sum of $1,199.22 with interest and cost.

The appellee, Highlands Insurance Company is cast for all costs of court.

Affirmed in part reversed in part and judgment rendered.

ON REHEARING

Before SARTAIN, ELLIS and BAR-NETTE, JJ.

PER CURIAM.

Counsel for Highlands Insurance Company, third party defendant, in its application for rehearing has urged three grounds for consideration by us for granting the same. One such ground is that in reversing the trial court’s judgment sustaining an exception of no right of action as to W. H. Myrick and Myrick Construction Company, Inc.’s third party petition, we included W. H. Myrick, individually, as an obli-gee under the bond in addition to Myrick Construction Company, Inc., against Highlands Insurance Company, third party defendant, in the amount of $1,199.22, the result of which may subject Highlands Insurance Company to multiple claims.

This technical amendment is consented to by counsel of record for both parties with counsel for Highlands Insurance Company specifically reserving his rights as to the other grounds raised in his application for rehearing.

Accordingly, a rehearing is granted herein for the purpose of clarifying and amending the decretal portion of our judgment insofar as the third party claim is concerned by deleting therefrom W. H. Myrick, individually. In all other respects the original judgment shall remain the same.

Original judgment amended and as amended reinstated.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Ethel L. WILLIAMS v. ORLEANS PARISH SCHOOL BOARD.
    No. 6789.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Jackson P. McNeely, New Orleans, for plaintiff-appellee.
    Morrison & Reily, Patrick M. Reily, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Ethel L. Williams, was injured at the Carter G. Woodson Junior High School while attempting to open an iron mesh door which fell on her and knocked her to the ground. At the time of the accident, the school was leased to the City of New Orleans for use as a polling place in a local election and plaintiff was entering the building to cast her vote. She was awarded $5,179 general and special damages against the Orleans Parish School Board, the lessor-defendant, which has prosecuted this appeal.

The facts are not disputed. On April 6, 1971, plaintiff reached for the handle to open a metal door to enter the Woodson School cafeteria, where the voting booths were located. The door fell knocking her backward and pinning her beneath it. Two men were' required to lift the door because of its weight.

Miss Williams, then 50 years of age and weighing 272 pounds, suffered an injury to her right hand and shoulder that required frequent medical attention for the following five months. The medical evidence supports a hypothesis the trauma activated a dormant arthritic condition in the shoulder that produced acute pain over a five-month period and caused a possible swelling of the right hand. Whether the swollen hand was a result of edema or a result of the trauma is not conclusive from the evidence.

To defeat liability, defendant first contends it is immune from suit in tort without specific legislative authority waiving such immunity. We note there is in evidence a concurrent resolution of the Louisiana House of Representatives and the Senate permitting Mrs. Ethel Williams to sue “ * * * the Orleans Parish School Board, upon a claim for damages alleged to have been sustained by reason of an accident * * * and alleged to have been caused by the negligence of the officers, agents and/or employees of the said Orleans Parish School Board.”

The school board contends the quoted waiver would limit Mrs. Williams to a tort action in which she would have the burden of proving negligence, which she failed to do. Even were we to find merit in this argument, it would not defeat defendant’s liability because plaintiff testified the door that fell “ * * * was rusted from the top of the hinges and at the bottom it was rusted, it was all rotted from the top and bottom * *

This testimony is not rebutted. The defendant did not call any witnesses or produce any evidence that would discredit Mrs. Williams’ description of what was apparently a negligently maintained door.

Assuming arguendo that the legislative waiver required the plaintiff to prove actionable negligence' and further assuming that the plaintiff failed to prove the defendant’s specific acts of negligence, that despite these assumptions we would still be compelled to find for the plaintiff based upon defendant’s strict liability as a lessor to its tenant or invitee under C.C. arts. 2693 and 2695, in view of the en banc ruling of this court that the school board does not enjoy governmental immunity from suit. See Orleans Parish School Board v. Williams, 300 So.2d 848 (La.App. 4th Cir. 1974).

In Williams the majority alluded to the obvious problems of violations of the due process and equal protection clauses of the United States Constitution, the concurring opinion held the state constitutional grant of sovereign immunity to the school board was unconstitutional, and in an en banc refusal of an application for rehearing, this court expressly held the defense of sovereign immunity and the jurisprudence upholding it were no longer valid for the reasons cited in Board of C. of P. of New Orleans v. Splendour S. & E. Co., 273 So.2d 19 (La.1973). Although the Supreme Court granted writs and affirmed our result, it declined to consider the constitutional issues; therefore, the en banc view of this court quoad the school board' remains unaffected.

We hold the plea of governmental immunity invalid. We further conclude the school board is liable in damages and plaintiff has established a prima facie case that would sustain a judgment under either C.C. art. 2315 or C.C. arts. 2693 and 2695.

We next consider quantum. Appellant claims the general damage award is excessive, and plaintiff, answering the appeal, claims it is inadequate. We find merit in neither argument. Appellate courts may only adjust damage awards when the trial judge has abused the “much discretion” vested in him by C.C. art. 1934.

In this case plaintiff was awarded $4,500 for a shoulder injury that produced painful symptoms, involving activation of a dormant arthritic condition, for more than five months. Plaintiff was treated by her family doctor, who was acquainted with her medical history, and his testimony proves the complaints of pain were a direct result of the trauma. Defendant’s expert does not take issue with the duration of pain. For this an award of $4,500 general damages is adequate and should not be modified. The cases cited by plaintiff to support the request for an increase are not authority for our concluding the trial judge abused his discretion in setting quantum.

Defendant finally contends the trial court improperly condemned it to pay all costs of these proceedings, when, as an agency of the state, it is only liable for stenographic fees. This contention is correct and the judgment is amended accordingly.

For the reasons assigned, the judgment appealed from is amended to cast the defendant, the Orleans Parish School Board, for the cost of stenographic fees incurred in connection with this litigation and to absolve the defendant from bearing any other costs of litigation. In all other respects the judgment appealed from is affirmed.

Amended and affirmed.

      . House Concurrent Resolution No. 247 of the 1972 Regular Session of the Louisiana Legislature.

      . LSA-Const. Art. 19 § 26 (1921).

      . Orleans Parish School Board v. Williams, 312 So.2d 647 (La.1975).

      . Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (La.1963).

      . Manuel v. Manuel, 299 So.2d 902 (La.App. 3d Cir. 1974); and Picou v. Sighlands Insurance Company, 298 So.2d 307 (La.App. 1st Cir. 1974).

      . LSA-R.S. 13:4521; Johnson v. Orleans Parish School Board, 261 So.2d 699 (La.App. 4th Cir. 1972).


author: BEER, Judge.

text:
    Walter W. COLEMAN v. Edgar V. SCHAFER, Jr.
    No. 6924.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Rehearing Denied Sept. 9, 1975.

      Salvador J. Cangemi, David M. Cambre, Kenner, for plaintiff-appellant.
    Adams & Reese, Edward J. Rice, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BEER, Judge.

On July 12, 1972, Walter W. Coleman, a 25-year employee at United Rice Milling Products Company (hereinafter, “United”), was acting as foreman during the vacation absence of the regular production foreman —a position he had previously assumed under similar circumstances.

A jam-up or “choke” occurred in the rice-packaging operation necessitating a production shutdown in order to find the cause of the problem and alleviate it. The generally established investigative routine that takes place when a “choke” occurs requires physical entry into a small sunken portion of the plant flooring called a pit which, during normal operations, is covered over by three or four removable boards.

Plaintiff-appellant in his capacity as acting foreman ordered two or more of the boards removed, oversaw the investigation in the pit which revealed that the jam-up was not the result of any problem there and, before proceeding to another part of the plant, apparently instructed one of the plant employees, Jack Johnson, to replace the boards. Plaintiff’s testimony on this point is essentially corroborated by another plant employee Kenneth Jones, but is denied by Johnson, who did not replace the boards.

Moments later, Coleman, still very much involved with attempting to solve the jam-up problem, walked back into the area and fell into the pit. The injury he suffered in that fall is the basis for this tort suit against the president and secretary-treasurer of United and their insurer. Plaintiff-appellant contends that defendants were grossly and wantonly negligent in knowingly maintaining the hazard which has caused his distress.

After extensive pretrial discovery the matter was tried on May 28 and 29, 1974, and for reasons orally assigned, judgment dismissing plaintiff’s suit was rendered on June 4, 1974. We affirm.

The proliferation of so-called executive officer suits has resulted in a number of definitive appellate decisions which need not be here considered in view of the contributory negligence of plaintiff. It would serve no useful purpose for us to burden this opinion with a review of the far-reaching expansions and refinements that have followed in the wake of Adams v. Fidelity and Casualty Co. of New York, 107 So.2d 496 (La.App. 1st Cir. 1958), having concluded as we do that the trial judge was correct in his apparent factual determination of contributory negligence.

Apparently, Mr. Coleman’s preoccupation with finding the cause and solution to the jam-up distracted him from noticing that his alleged order to replace the boards (that he had just previously ordered to be removed) had been ignored. The record fully supports a finding that had Mr. Coleman been looking where he was going he would have seen that the boards had not been replaced and were still stacked up against the wall.

There is no testimony or other evidence in the record to suggest that the defendants knew that, pursuant to plaintiff’s own order, the boards had been removed. However, a more detailed consideration of this aspect of the case is mooted by our agreement with the apparent factual finding of the trial judge on the issue of plaintiff’s contributory negligence.

In order to excuse Mr. Coleman’s lapse, able counsel for appellant cites several cases dealing with sudden emergency. However, the basic concept of that doctrine is that the sudden emergency must be what the name implies — a split-second, decision-making confrontation requiring an immediate selection of alternatives. That is not the factual situation with which we are here concerned. Plaintiff’s decision to walk back across the plant by way of the pit area was not in response to any sudden emergency. The “choke” had long since occurred. The routine of clearing it up was in progress. No sudden emergency— within the definition of the doctrine — existed in such a way as to place any great stress on plaintiff’s selection of his route across the plant floor as he dealt with the problem.

However, in an effort to give full consideration to the appellant’s position we have, notwithstanding the lack of discussion on the subject in the briefs, given serious thought to the line of cases dealing with momentary forgetfulness. Such consideration has led us to Hailey v. LaSalle Parish Police Jury, 302 So.2d 668 (La.App. 3d Cir. 1974) (writ refused, 305 So.2d 540). In that case the court explored the development of the doctrine of momentary forgetfulness and concluded that it does clearly exist in the jurisprudence of this State. The court further concluded that the application of the doctrine does “[excuse] one from the effect of contributory negligence where sufficient cause is shown for the lapse of memory or inattentiveness which results in the accident.” The court went on to hold that the doctrine only applies where there is evidence of circumstances reasonably sufficient to have diverted plaintiff’s mind from the danger in question. Forgetfulness or lapse of memory was not found to be excusable absent adequate diverting circumstances. Finally, the court concluded that the question of adequacy and sufficiency of the diverting circumstances must be determined on a case-by-case basis.

We agree with this entire rationale and apply it here. So doing, we find support in the record for the trial court’s apparent determination that, in the instant case, the doctrine will not be applied. The trial court heard the witnesses, visited the scene and made factual findings which formed the basis for its judgment. Though no written reasons were handed down by the trial court, we conclude that the doctrine of momentary forgetfulness was considered and rejected by the trial court. The record supports such action on the part of the trial court and we do not find it to be manifestly erroneous.

Accordingly, the judgment is affirmed at appellant’s cost.

Affirmed.

      . Johnson says that he removed two of the four planks, or boards, on Coleman’s order and leaned them against the wall where they are usually placed when removed. That was where they were (according to Johnson) when Coleman fell into the pit. Johnson denies being told to put them back in place.

      . Medical and weekly disability payments were paid under the terms and provisions of the Workmen’s Compensation Act and that matter is not at issue here.


author: SARTAIN, Judge.

text:
    Robert C. REED, Plaintiff-Appellee, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Defendant-Appellant.
    No. 10357.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Rehearing Denied Aug. 26, 1975.
    Writ Refused Oct. 24, 1975.

      Francis G. Weller, New Orleans, for defendant-appellant.
    Charles Hanemann, Houma, for plaintiff-appellee.
    Before SARTAIN, ELLIS and BAR-NETTE, JJ.
   SARTAIN, Judge.

Defendant-appellant brings this appeal from judgment rendered against it and in favor of plaintiff on plaintiff’s claim for benefits under, a disability income insurance policy issued by defendant. Judgment was rendered in the amount of $1200.00, a sum equal to one month’s benefits under the policy, plus legal interest from date of demand. Plaintiff’s demand for penalties and attorneys’ fees was denied.

On appeal defendant admits that plaintiff was disabled within the meaning of the policy during the month in question, but denies coverage on the basis of plaintiff’s alleged material misrepresentations in his application. In the alternative, defendant raises a defense of compromise by the parties which effectively bars the present claim. We find no merit to either of these contentions and affirm the trial court’s judgment for reasons stated herein.

At the outset, we note that the original plaintiff in this action was Robert C. Reed. After trial, but prior to rendition of judgment, Mr. Reed died and Vera Newlon Reed, surviving wife and executrix of the succession of decedent, was properly substituted as party plaintiff.

The record shows that Mr. Reed, a civil engineer, was a member of a professional organization known as the American Congress on Surveying and Mapping. As a, member of this group he was solicited to join a group disability income plan in November of 1971. As a result of this solicitation, on December 9, 1971 Mr. Reed submitted an application to enroll in the plan. At this time Mr. Reed was pursuing all the normal activities of his profession. Within a month of application the policy was issued.

In September of 1971, some three months prior to his insurance application, Mr. Reed sought medical advice from Dr. Cinnater because he was feeling mildly depressed and his left hand was shaking. (R. 85) The only time Dr. Cinnater had seen Mr. Reed professionally prior to this time was in January of 1971 when he gave Mr. Reed a shot of gamma globulin as a precautionary measure to prevent him from contracting infectious hepatitis, a disease which his wife had at the time.

As a result of the September visit, Dr. Cinnater found Mr. Reed’s liver to be mildly enlarged and thus had an SMA 12 blood test run to examine various blood chemistries. This test showed abnormal BSP and SGOT levels which indicated liver abnormality. The resulting test levels were termed by Dr. Cinnater as being of “some significance” but “wouldn’t be critical or serious.” The doctor testified further that he did not recall what he actually told Mr. Reed about the test results, but did recall telling Mr. Reed that he should get more exercise, and that he would have to abstain or cut down from his present rate of alcohol intake, which Mr. Reed testified had been a pint to a fifth of bourbon a day for the previous fifteen years.

Mr. Reed testified that as a result of the September test, Dr. Cinnater told him to cut down his intake of alcohol or he would have serious liver trouble in the future. He stated that Dr. Cinnater did not explain the details of the test results to him, nor did the doctor lead him to believe that there was anything wrong with him at the time other than a potential for possible future liver trouble. Mr. Reed stated further that he thereafter limited himself to one or two drinks a day, a level which his doctor said would be acceptable.

It is admitted by all parties that Mr. Reed became disabled in May of 1972 when it was discovered that he had cirrhosis of the liver with ascites. It was not known at the time what type of cirrhosis he had, not its etiology. Dr. Cin-nater testified that at that time the clinical state and past history indicated Laennec’s or nutritional type cirrhosis, a type which is usually associated with heavy drinking. However, Dr. Head, an expert in the field of internal medicine and gastroenterology and who also treated Mr. Reed, testified that he was not sure what type of cirrhosis Mr. Reed had since no biopsy was available. He noted that it could have developed from alcohol intake, or it could have developed from viral agents, noting that there were present in Mr. Reed’s blood positive Australian antigen, an antigen type associated with a high degree of certainty with viral hepatitis.

After trial a successful biopsy was conducted by Dr. Head and it was then determined that there was chronic aggressive hepatitis with cirrhosis and cholestasis (jaundice). Dr. Head stated that the liver disease was most likely due to viral cause. He stated further that it was impossible to say what role alcohol played, but that since the alcohol was stopped for at least two years prior to that time, it would be unusual to see the activity of aggressive hepatitis as a result of alcohol intake.

Defendant now alleges that Mr. Reed made material misrepresentations in his application when he failed to disclose that he had seen a doctor in September of 1971 and was subsequently tested for liver problems and told to quit drinking, and further he failed to disclose that in July of 1967 he had had a hemorrhoidectomy. The perti-ent portion of the application states:

2. To the best of your knowledge and belief:

a. Have you within the past S years had any medical or surgical advice or treatment for:
(1) High or low blood pressure, heart trouble, arthritis, hernia, cancer, tumor, goitre or thyroid condition, kidney or prostrate condition, mental or nervous condition, ulcer, tuberculosis, diabetes or any female disorder ?
(2) Any injury or ailment not named above:
b. Are you now in good health and free of any physical impairment, deformity or disease?

To (1) and (2) Mr. Reed answered “no” and to b. he answered “yes”.

L.R.S. 22:619 provides:

A. Except as provided in Sub-section B of this Section and R.S. 22:692, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.

(Emphasis ours)

It is well settled that when benefits are denied on the basis of material misrepresentations in an insurance application it must be shown not only that the representations were false and material, but also that they were made with actual intent to deceive. Gay v. United Benefit Life Insurance Co., 233 La. 226, 96 So.2d 497 (1957); Knight v. Jefferson Standard Life Insurance Co., 205 So.2d 485 (1 La.App., 1967); Hendricks v. Connecticut General Life Insurance Co., 244 So.2d 249 (3 La.App., 1971); Bamburg v. Reserve Life Insurance Co., 259 So.2d 408 (2 La.App.1972); Parfait v. Minnesota Mutual Life Insurance Co., 311 So.2d 558 (4 La.App., 1975).

The burden of proving materiality of the misrepresentations and actual intent to deceive on the part of the applicant rests with the insurer. Stoma v. Prudential Insurance Co. of America., 281 So.2d 871 (3 La.App., 1973), and authorities cited therein.

Strict proof of fraud is not required to show intent to decieve, but rather, such intent is to be determined from surrounding circumstances which show that the insured knew the statements in the application were false and recognized their materiality thereto, or from the circumstances it can be reasonably assumed that he recognized the materiality. Murphy v. Continental Casualty Co., 269 So.2d 507 (1 La.App., 1972).

Assuming the representations in the present case to be material as they affected the insurer’s decision to accept the risk, we find no evidence that the. insured recognized them as such, nor do we find circumstances which would lead us to reasonably assume that he so recognized them. The insured’s one visit to the doctor some two months prior to his application for insurance gave the insured no cause to believe he had any health impairments other than the possibility that in the future he could have serious trouble if he did not cut down his drinking. This is corroborated by the doctor’s testimony that the test results, while indicating some dysfunction, did not indicate anything critical or serious at the time. The testimony of Dr. Cinnater is extremely vague as to what, if anything, he told Mr. Reed about his physical state at that time.

The testimony of Dr. Head, elicited after the liver biopsy was conducted, shows the uncertainty as to exactly what caused the liver problem and whether it was of such a nature as to have existed to an extensive degree at the time of the September visit. What problems the insured was then having could only be delineated in light of subsequent developments. It was not until the following May, nine months after the September visit and five months after his application, that a serious liver disease was definitively diagnosed.

As for the insured’s failure to disclose his hemorrhoidectomy performed in 1967, he testified that he felt he had been cured and had had no problems in that respect since having the operation. His testimony convinces us on this point that he had no idea this would be of any importance to the insurance company. Even the testimony of the insurer’s own expert is vague on this point. It is not clear from the record how much weight, if any, such an operation would have been given in consideration of acceptance or rejection of the risk.

Accordingly, we find no evidence that the insured had any intent to deceive the insurer, and thus we find him innocent of any material misrepresentations within the meaning of R.S. 22:619(B).

We turn now to the insurer’s second contention of compromise. Louisiana Civil Code Article 3071 states:

“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be reduced into writing.”

This article was applied by this court in Stablier v. Partin, 278 So.2d 537 (1 La.App., 1973), writ refused, 281 So.2d 748, wherein it was specifically held that a valid compromise of a pending lawsuit can only be made in writing.

In the present case, the allegations of compromise are based on the following series of occurrences. On March 13, 1973, four months after suit was filed, attorney for the insurer authored a letter sent to attorney for the insured wherein he set forth a confirmation of a purported oral agreement between the parties to settle for a designated sum. On April 2, 1973, a second letter, along with a check for the designated sum, was sent by the insurer’s attorney to the insured’s attorney. The check was returned by the insured’s attorney to the attorney for the insurer on April 4, 1973. This was the only written evidence offered in support of a compromise.

It is obvious from these events that no agreement between the parties was ever consummated in writing as required by the above cited article. The only semblance of written terms is contained in the unilateral letters from the insurer and to which the insured never agreed in writing. Thus we find no merit to any defense based on compromise.

For the above and foregoing reasons, the decision of the trial court is affirmed with all costs of these proceedings assessed to appellant.

Affirmed.

      . “or” has been interpreted to mean “and”. Knight v. Jefferson Standard Life Insurance Co., 205 So.2d 485 (1 La.App., 1967).


author: BOUTALL, Judge.

text:
    Melvin H. DENNIS v. LOUISIANA STATE DEPARTMENT OF PUBLIC SAFETY, DRIVER’S LICENSE DIVISION.
    No. 6922.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Rehearing Denied Sept. 9, 1975.

      Max Nathan, Jr., Harvey L. Strayhan and Chris A. Verret of Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for Melvin H. Dennis, plaintiff-appellee.
    Foye L. Lowe, Jr., Associate Gen. Counsel, Dept, of Public Safety, Baton Rouge, for Dept, of Public Safety, defendant-appellant.
    James C. Dixon, Baton Rouge, for defendant-appellant.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

Melvin H. Dennis sought judicial review pursuant to Louisiana Revised Statute 32:668 from an administrative determination suspending his driver’s license for six months for failure to submit to the sobriety test as provided in LRS 32:667. The district court upheld the six month suspension, but amended the order permitting Dennis to operate his motor vehicle solely for the purpose of earning a livelihood for his family. The Department of Public Safety has appealed.

The trial court found the following facts:

“Relator was arrested for various traffic violations. While in the custody of the Jefferson Parish Sheriff’s Department he was requested to take a sobriety test. According to the evidence at the hearing a full disclosure of his rights was read to him and he was permitted to call his attorney and explain his predicament. His attorney advised him to refuse to take the test. The Court therefore concludes that Relator had full knowledge of the consequences of his actions and cannot complain that any action has been taken without preservation of his rights.
“The suspension of driving privileges for six months would seriously impair the ability of Relator to support his family. In view of the fact that all charges have been dismissed against him and considering the necessity for him to drive in his employment, the Court will modify the order of suspension to relate only to pleasure or non-occupational driving.”

The record amply supports the trial judge’s finding of fact, and the only issue before us is his conclusion that he has authority to modify the suspension solely for the purpose of permitting Dennis to drive for occupational purposes. It is contended that such authority exists inasmuch as LRS 32:668, subd. B states that the holder of a driving permit shall have a right of review of the Department’s order in the same manner and under the same conditions as is provided in RS 32:414 in the cases of suspension, revocation and cancellation of licenses. Section 414 provides for such relief in cases of suspension for the first offense of driving while intoxicated.

Since the rendition of the judgment of the trial court, the intermediate appellate courts have rendered several decisions holding that the hardship provisions in RS 32:414 do not apply to suspensions under RS 32:667 and 668. Vicknair v. State, Department of Public Safety, 303 So.2d 226 (La.App. 4th Cir. 1974); Hendryx v. State, Department of Public Safety, 311 So.2d 547 (La.App. 3rd Cir. 1975); Spencer v. State, Department of Public Safety, 315 So.2d 912 (La.App. 4th Cir. 1975.) We find these latter'two cases decisive of the issue posed in this case, and hold that the district court is afforded no discretion in relieving the mandatory suspension of the driver’s license for reasons of hardship.

Accordingly, it is ordered that the judgment appealed from is amended to annul and delete that portion thereof permitting Melvin H. Dennis to operate a motor vehicle “during the hours of 7:00 o’clock A.M. to 6:00 o’clock P.M. and solely for the purposes of earning a livelihood for his family, the Department’s order of May 31, 1974 suspending all of the driving privileges of Melvin H. Dennis for a period of six months is reinstated; and as thus amended, the judgment appealed from is affirmed. Appellee shall pay all costs of these proceedings.”

Amended and affirmed.


author: BOLIN, Judge. PRICE, Judge.

text:
    Carlyn A. CASON et al., Plaintiffs-Appellees-Appellants, v. Wendell FORMBY et al., Defendants-Appellants. Carlyn A. CASON, Plaintiff-Appellee, v. Wendell FORMBY et al., Defendants-Appellants.
    Nos. 12592, 12593.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1975.
    On Rehearing Sept. 3, 1975.
    Writ Refused Sept. 11, 1975.

      Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for Firemen’s Ins. Co.
    Mayer, Smith & Roberts by Paul R. Mayer, Shreveport, for defendant-appellant E. R. Pickier.
    William B. Lynch, Steven G. McKenzie, Bossier City, for plaintiff-appellee-appel-lant Carlyn A. Cason and others.
    Before AYRES, BOLIN and DENNIS, JJ-
   BOLIN, Judge.

These causes, consolidated for trial and on appeal, arose out of an automobile-truck collision on Louisiana Highway No. 3 approximately 3.8 miles north of the city limits of Bossier City, Louisiana. Both vehicles were proceeding north on the state highway when the automobile driven by R. D. Cason, having successfully completed a passing maneuver around two tractor-trailer trucks, attempted to pass a truck driven by E. R. Pickier who at that time was attempting a left turn onto a gravel road. Cason was unable to turn his vehicle back into the right lane of traffic and his automobile struck the rear corner of the truck as it was completing its turn. Cason sustained fatal injuries and his wife, Carlyn A. Cason, a guest passenger, suffered minor injuries.

Suit No. 12,592 is a wrongful death and survivors’ action brought by Mrs. Cason, Billy F. Cason, and Connie Loreece Cason Gonzalez, the widow and children of the deceased. Suit No. 12,593 is an action brought by Mrs. Cason for her personal injuries. Made defendants in both suits were Pickier, the driver of the truck; Wendell Formby, owner of the truck; and Fireman’s Insurance Company, the uninsured motorist carrier of R. D. Cason. In suit No. 12,593 Fireman’s Insurance Company, public liability insurer of R. D. Ca-son, was also made a third-party defendant by the defendants in the main demand seeking contribution in the event of an adverse judgment against them and a finding that Cason was contributorily negligent. A motion for summary judgment was filed in both suits and sustained dismissing the demands of the original plaintiffs against Fireman’s Insurance Company but reserving their rights against all other defendants.

In suit No. 12,593 judgment was rendered in the trial court in favor of Mrs. Cason against defendant Pickier for $1077.00. All claims against Formby were rejected but no mention was made of the third-party demand against Fireman’s Insurance Company. Pickier appeals, but Mrs. Cason did not timely perfect an appeal nor answer the appeal.

In suit No. 12,592 judgment was rendered in favor of Mrs. Cason and her two children against Pickier for a total amount of $67,456.00. All claims against Formby were rejected. From this judgment Pickier appeals.

Before this court defendant Pickier complains that the trial court erred in finding him guilty of negligence which was the proximate cause of the accident and in the alternative in failing to find that R. D. Ca-son was guilty of contributory negligence.

The trial court based its finding of negligence on the part of Pickier on the fact that he turned left in front of the Ca-son vehicle which should have been visible in the passing lane if he had looked in his rearview mirror. The evidence in the record supports this conclusion.

Pickier testified that he did look into his rearview mirror and that he did not see any traffic in the passing lane. A. C. Lusk, Jr., driver of an automobile following Cason, testified, however, that he followed Cason as he passed the first truck and then moved back into the right lane between the two tractor-trailer trucks before determining whether to pass the second truck, at which time the Cason vehicle accelerated and he saw that the truck driven by Pickier was making a left turn in front of Cason. Alfred R. Huddleston, Jr., a passenger in the Lusk vehicle, testified that the left turn of the truck was sudden and that it angled off toward the turn, at which time Cason applied the brakes and turned the automobile to the right. A. L. Maddox, driver of an automobile which had been following behind the Lusk vehicle, also testified that the truck veered across the center line in front of Cason.

We find, therefore that Pickier was negligent in making a left turn as he did with vehicles present in the passing lane behind him which he should have seen had he looked.

As to the alternative allegation of contributory negligence on the part of Cason, defendant maintains that Cason was traveling at an excessive rate of speed and that he attempted to pass at an intersection in violation of Louisiana Revised Statutes 32:76, subd. A (2) (Louisiana Highway Regulatory Act).

The speed limit at the point of the highway where the accident occurred was 60 miles per hour. The trial court determined that Cason was traveling approximately 70-75 miles per hour as he accelerated around the second truck, but found that this speed was not a cause of the accident. The preponderance of the evidence is that the Cason vehicle was proceeding at a rate of at least 75 miles per hour. Based on his own speed, Lusk estimated Cason’s speed to be between 75 and 80 miles per hour, as did Huddleston. The state trooper, Dalton W. Little, who arrived at the scene to investigate the accident, was of the opinion that the speed of the Cason vehicle was about 75 miles per hour based on the skid marks of the vehicles and other physical evidence. Considering the fact that the truck had almost completed the turn off the highway when it was hit, we find that Cason’s high rate of speed was excessive and a legal cause of the accident. It is therefore unnecessary to consider whether there was a passing maneuver attempted at an intersection in violation of the Louisiana Highway Regulatory Act.

We find that Cason was cOntributorily negligent, thus barring recovery in suit No. 12,592 on all causes arising from his death; accordingly, the judgment against E. R. Pickier and in favor of plaintiffs is reversed and their demands are rejected at their cost.

The judgment in suit No. 12,593 against Pickier and in favor of plaintiff, Mrs. Cason, is affirmed. However, since defendant Pickier has appealed and his third-party demand against Fireman’s has not been dismissed and since we have found R. D. Cason to have been guilty of actionable negligence, we conclude Pickier is entitled to contribution from Fireman’s. Accordingly, it is ordered that there be judgment on the third-party demand in suit No. 12,593 in favor of E. R. Pickier awarding him the right to contribution from Fireman’s Insurance Company for one-half of any amount Pickier pays under this judgment. All costs of this suit are to be borne equally by E. R. Pickier and Fireman’s Insurance Company.

Before BOLIN, PRICE, HALL, DENNIS and MARVIN, JJ.

ON REHEARING

PRICE, Judge.

We granted a rehearing in this matter on application of defendant, Fireman’s Insurance Company, limited to the judgment rendered against it for contribution on the third party demand by defendant, E. R. Pickier. This application for rehearing has been withdrawn by Fireman’s Insurance Company.

It is therefore ordered that the judgment in our original opinion be reinstated.


author: DOMENGEAUX, Judge.

text:
    Anthony REINERS, Plaintiff-Appellant, v. STRAN-STEEL CORPORATION et al., Defendants-Appellees.
    No. 5068.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1975.
    Rehearing Denied Aug. 28, 1975.
    Writ Refused Oct. 24, 1975.

      Pugh, Buatt, Landry & Pugh by Kenneth O. Privat, Crowley, for plaintiff-appellant.
    Voorhies & Labbé by Patrick A. Juneau, Jr., Lafayette, Clanton & Johnson, John W. Johnson, Eunice, for defendants-appel-lees.
    Before FRUGÉ, MILLER and DO-MENGEAUX, JJ.
   DOMENGEAUX, Judge.

This is an action in redhibition by the plaintiff seeking damages and attorney’s fees from the manufacturer (Stran-Steel Corp.) and retailer (E. B. Feucht & Son; E. B. Feucht; and Darryl Feucht) of a large steel “Quonset Hut” which he purchased some time in the latter part of 1972. From a judgment in favor of the plaintiff in the sum of $450.00, solely against the manufacturer, the plaintiff has appealed. Defendants neither appealed nor answered the appeal.

The plaintiff, Anthony Reiners, a St. Landry Parish, Louisiana, rice and soybean farmer, contacted Darryl Feucht in 1972 seeking to purchase a farm storage building and shop. E. B. Feucht & Son, of which Darryl Feucht was a partner, was the franchise outlet in the Eunice, Louisiana, area for products of Stran-Steel Corp., a manufacturer of steel buildings. Reiners subsequently purchased, for the sum of $3,966.00, a 40 x 48 foot prefabricated steel building which was ordered from the defendant-manufacturer on January 5, 1973. In addition, the plaintiff contracted with the defendant-retailer to build a concrete “chain-wall” foundation for the steel building, which was completed on January 22, 1973. The defendant-retailer also was in the business of erecting the steel buildings which it sold. Reiners, however, chose to erect the building himself in order to save money. The building materials were delivered to plaintiff’s property in crates and bundles on February 6, 1973, the same being stored near the construction site covered with visquene. Plaintiff began construction the following week and was in the process of erecting the structural steel when it was discovered that the manufacturer had mistakenly shipped two “right-hand” instead of “left-hand” rafters. This necessitated stoppage of the construction and plaintiff contacted Darryl Feucht who in turn ordered two replacement rafters from the manufacturer. The materials arrived on March 12th, but upon examination, the plaintiff found these rafters to also be “right-handed”. On this occasion E. B. Feucht offered to “field modify” the rafters so they could be used, or suggested that plaintiff could do so and charge the amount back to the retailer. During this same period plaintiff apparently also had some trouble with the original erection drawings furnished with the building materials and the defendant-retailer supplied the plaintiff with a supplementary or additional set of plans. Plaintiff subsequently modified the rafters himself and did not thereafter contact the defendant-retailer until shortly before this suit was filed.' The building structure or frame was completed on or about March 15th, but at that time plaintiff stopped further construction allegedly because he had to start planting his crops. In August, 1973, the plaintiff examined the remaining building materials (construction iron and galvanized roof sheeting), and discovered rust was present thereon.

Defendants were subsequently contacted by plaintiff’s attorney and informed of the “defects” in the building materials. Stran-Steel sent a representative to examine the materials and thereafter replied, contending no defects were present in the initial shipping (with the exception of the incorrect rafters for which the company was willing to reimburse the cost of correcting) and that the rust deterioration was caused by improper and inadequate handling and protection during prolonged storage. The defendant retailer answered by letter essentially the same as the manufacturer. Plaintiff subsequently demanded a complete new building and upon refusal by Stran-Steel, and no answer from the defendant-retailer, this suit was filed. Plaintiff sought damages which included the purchase price of the building, the cost of the foundation, and attorney’s fees.

Following a trial on the merits the district judge concluded the defendant-manufacturer was responsible for the improper delivery of materials, and delay caused to the plaintiff. He further found, however, that the plaintiff also had responsibilities, once he chose to erect the building himself, which he did not fulfill. Accordingly, $450.00 was awarded the plaintiff, to be paid by the defendant-manufacturer. The action against the defendant retailer was dismissed.

Two issues are presented on this appeal. (1) Did plaintiff sustain his burden of proof in an action for redhibition against the defendant-manufacturer and/or retailer? (2) Were the damages awarded by the trial judge sufficient?

Redhibition is the avoidance of sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice. LSAC.C. Art. 2520.

To maintain an action of redhibition, the plaintiff must prove that the vendor sold the thing to him; that the thing contained a hidden vice, not apparent from ordinary inspection, which subsequently rendered the thing unfit for use; that the vice existed at the time of the sale; and that the vendor did not advise him of it. Peters v. Pattison Pontiac Company, 259 So.2d 99 (La.App. 4th Cir. 1972); L.S.A. C.C. Art. 2520 et seq.

Herein the plaintiff complains essentially of three defects: (a) the incorrect rafters, (b) the construction plans, and (c) the rusted galvanized sheeting and construction steel.

There is no question but that incorrect rafters were supplied to the plaintiff on two occasions, necessitating both the re-ordering of same and, finally, field fabrication to correct the deficiencies. These defects were, however, corrected by the plaintiff prior to this suit for redhibition and cannot therefore be grounds for such an action, the appropriate relief being a reduction in the purchase price or action in quanti minoris. LaFleur v. Boyce Machinery Corp., 294 So.2d 498 (La.1974); Johnson v. H. W. Parson Motors, Inc., 231 So.2d 73 (La.App. 1st Cir. 1970). In addition we note that both the defendant retailer and manufacturer requested that a bill be submitted to them for the costs incurred, assuring that such would be paid. This of course was never done.

Insofar as the construction plans are concerned, the record indicates that the original plans delivered to the plaintiff were deficient in part, needing certain minor revisions. A second set of plans was sent by the manufacturer to the plaintiff on March 1, 1973, which contained the revisions, sufficient to enable him to construct all parts of the building. This so-called defect, however, under the particular facts of this case, is not one which in our opinion would support redhibition because it neither' rendered the construction absolutely useless nor rendered its use so inconvenient and imperfect that it must be supposed the plaintiff would not have purchased it had he known of the plans needing revision.

This leads us to the question of the rusted materials. The evidence, however, reflects that the materials were not rusted on delivery and that such a condition resulted only after being stored outside for six months or so, sheltered by nothing but visquene or a tarpaulin. Thus, one of the essential elements in a redhibition action is lacking, that is, a vice or defect present at the time of the sale. L.S. A.C.C. Art. 2530; Rey v. Cuccia, 298 So.2d 840 (La.1974).

Plaintiff further complains, however, that an action of redhibition lies under Civil Code Article 2529. The Article provides that a declaration made by the seller that the object sold has some quality, which it is found not to have, gives rise to an action in redhibition, if this quality was the principal motive for making the purchase. The action lies even though such quality does not constitute a vice or defect. Fusilier v. Ardoin, 266 So.2d 531 (La.App. 3rd Cir. 1972).

In this regard plaintiff contends that the principal quality which he sought in the building was simplicity and ease with which it could be constructed. He bases this argument on the manufacturer’s impartation (in a brochure) that the building could be “assembled on the farm with hand tools” and the fact that the retailer told plaintiff the building could be easily erected. We however find no real evidence in the record to reflect that such quality was in fact not present. The fact that plaintiff received incorrect rafters and plans does not mean that the building did not have the quality of being “easily erect-able”.

It appears that what plaintiff is actually complaining of in this suit is that time was “of the essence” in the erection of the building; that such intention was conveyed to the retailer, and that through delays caused by the incorrect rafters, plans, etc., he was unable to immediately construct this steel building, with the materials rusting as a result.

If time was of the essence, as alleged, to the plaintiff in constructing the building, the fact, however, remains' that the plaintiff chose to erect the building himself rather than having the defendant retailer do it. Thus the defendants had no direct part in constructing the steel building or in the time in which it was to be erected. Although delivery of the incorrect materials and plans did in fact cause a delay to the plaintiff, i. e. at the most, one month, the record does not show that plaintiff conveyed to the defendants notice that the material had to be delivered by a certain date or that such delivery date was understood. Neither was such a condition placed in the sale contract.

As to the cause of the rusting of the materials or placing of fault for such condition arising, plaintiff contends that the manner of storage, i. e. visquene, was suggested by the defendant retailer. Although the record bears this out, the evidence also reflects that the defendant — Darryl Feucht informed plaintiff essentially that the materials could be stored in this manner if plaintiff planned to erect the building immediately, and, if not, implied they should have been stored in a nearby barn. Plaintiff himself admitted in testimony that anyone knew the galvanized sheeting would incur white rust if left outside for any period and that everyone knew to put such material in a dry place. He further indicated that he had not intended to leave the materials outside six to eight months and never inquired from the defendant retailer about the storage of the materials for such a time period.

The last issue raised is the question of damages.

Louisiana Civil Code Article 2543 provides that a buyer who brings a suit in redhibition, yet fails to prove that the defect was of such severity to warrant a re-cision of the sale, may nevertheless be granted, in the discretion of the court, a reduction in the price. Tauzin v. Sam Broussard Plymouth, Inc., 283 So.2d 266 (La.App. 3rd Cir. 1973); Papa v. Louisiana Metal Awning Company, 131 So.2d 114 (La.App. 2nd Cir. 1961).

This is apparently the award granted by the trial judge in this case, i. e. $450.00. Inasmuch as we have concluded that redhibition is not due in the present case, in addition to the fact that plaintiff offered no evidence in regard to diminution of the price, and the defendant did not appeal this award, we cannot say that the award of $450.00 was in error.

For the above and foregoing reasons the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

Affirmed.

      . This demand was apparently dropped prior to or at the trial.


author: LEMMON, Judge.

text:
    CAUSEWAY LAND CO., INC. v. Marlon Hyman KARNO and Jacob L. Karno.
    No. 6454.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Rehearing Denied Sept. 9, 1975.
    Writ Refused Oct. 31, 1975.

      Jerome P. Halford, Metairie, for plaintiff-appellee.
    George C. Ehmig, Marvin C. Grodsky, New Orleans, and Wayne D. Mancuso, Gretna, for defendants-appellants.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   LEMMON, Judge.

In this possessory action defendants have appealed from a judgment which declared plaintiff the lawful owner of the immovable property in question and further declared invalid a counter letter in favor of one of the defendants. We reverse on the basis that the issues as to the validity of the counter letter and the ownership of the property were not before the trial court.

Plaintiff’s petition alleged that it had possessed the property as owner by virtue of an act of sale passed and recorded in June, 1971, and that defendants’ recordation of the invalid counter letter in March, 1972 constituted a disturbance in law. Plaintiff prayed to be maintained in possession and to be awarded damages.

In answer defendants denied plaintiff had ever possessed as owner because at all pertinent times they had possessed the property as owner by virtue of the counter letter. By reconventional demand they asserted this possession and prayed that they be maintained in possession and awarded damages.

At the trial on the merits there was no evidence whatsoever introduced to show that either plaintiff, plaintiff’s ancestor, defendants or anyone else had ever exercised corporeal possession of the property, which was a lot of vacant land.

The only possession protected by the possessory action is “corporeal possession” or “civil possession . . . preceded by corporeal possession.” C.C.P. art. 3660; Yiannopoulos, Louisiana Civil Law Treatise-Property, § 138 (1966); Ree Corp. v. Shaffer, 261 La. 502, 260 So.2d 307 (1972).

In this case neither plaintiff nor plaintiff in reconvention alleged or proved corporeal possession of the property by anybody at any time. Neither, therefore, is entitled to the relief afforded by the pos-sessory action.

The record contains evidence bearing on the validity of the counter letter. However, when plaintiff attempted to introduce the counter letter and other evidence in an effort to show the document invalid, defendants timely objected to any evidence of ownership, other than for the purpose of proving possession since the petition had only asserted a possessory action. The counter letter was admitted, as well as considerable evidence bearing on the validity of the document.

We are compelled to disregard this evidence in view of defendants’ timely objection. Plaintiff chose to utilize the posses-sory action, in which the Code of Civil Procedure specifically limits the relief which can be granted. Defendants moreover carefully avoided converting the proceeding to a petitory action and chose to seek, on their own behalf by reconventional demand, the limited relief provided by the possessory action. Thus, neither party was willing by the pleadings to make ownership an issue. In view of the codal limitation on the relief available in the posses-sory action, we reluctantly decline to review the evidence in the record as it bears upon the issue of ownership, especially since a party defending a possessory action may be prejudiced if in reliance on the pleadings he fails to introduce evidence bearing on ownership.

We conclude that the express and exclusive use of the possessory action by both parties (although neither proved the type of possession protected by the posses-sory action) precludes a court from granting any relief except that provided in the codal articles governing possessory actions. The judgment determining ownership must therefore be set aside.

Accordingly, the judgment of the trial court is annulled and set aside. Each party is granted the right to file additional pleadings and to present additional evidence hearing on the dispute between the parties, whether by petitory, action or by other procedure deemed appropriate. Assessment of costs will await final disposition of the matter.

Judgment set aside, case remanded.

      . The issue as to the validity of the counter letter principally involves the question of whether the document was authorized and executed at a time when one of the defendants and his three law partners were the sole directors of plaintiff corporation.

      . In our opinion the existence of the counter letter was proper proof by plaintiff that its possession (if corporeal possession was otherwise proved) had been disturbed, but the validity of the counter letter was not a relevant issue in the determination of plaintiff’s possessory action. On the other hand, the counter letter was also admissible evidence as part of defendants’ reconventional demand, but only for the purpose of proving defendants’ possession as owner under O.O.P. art. 3661.

      .While the Code of Civil Procedure has generally abolished the “theory of the case” doctrine and now authorizes an appellate court to render any judgment which is just, legal and proper upon the record, the code has specifically required separation of the pos-sessory and petitory actions. The purpose is to keep the trial of the issues of possession and ownership as separate as possible and to encourage the determination of the issue of possession before the bringing of the petitory action. Yiannopoulous, Louisiana Civil Law Treatise-Property, supra.

      . A judgment for plaintiff in a possessory action must, if plaintiff prays for such relief (and the plaintiff did in the present case), order the defendant to assert his adverse claim of ownership within a specified delay or be precluded thereafter from asserting ownership. C.C.P. art. 3662.