text:
    CONSUMER MONEY ORDER CORPORATION OF AMERICA v. Najle KAFATI and Magdelena Kafati, d/b/a Hartson Food Store.
    No. 7091.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Graffagnino & Perez, Metairie, Lester J. Waldmann, New Orleans, for plaintiffs-appellants.
    W. Matthew Campbell, New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA, and BEER, JJ.
   BEER, Judge.

Consumer Money Order Corporation of America (hereafter, Consumer) and Najle Kafati and Magdelena Kafati d/b/a Hart-son Food Store (hereinafter, Kafati) signed a contract under the terms of which Kafati agreed to act as Consumer’s agent for the sale of its money orders and to remit the weekly proceeds derived therefrom. In accordance with Section 5 of the contract Mr. Santos Mangipano, an employee of Consumer, collected the proceeds on Tuesday of every week. This arrangement continued for over two years. Then Mr. Mangipano retired and Kafati commenced the practice of mailing the weekly proceeds to Consumer, an alternative method of remittance specifically provided for in Section 5 of the contract. He continued to mail the money to Consumer at its office in St. Louis for about a year. His “commission” from the sale of the money orders was slightly increased to compensate him for this change in the remittance arrangement.

At some subsequent time, not clear from the record, Kafati commenced the procedure of personally depositing the funds collected during the previous week into Consumer’s own local bank account. This method of procedure .is not mentioned in Section 5 nor anywhere else in the written contract. Kafati was following this procedure on April 4, 1974 when an undisputed theft of the proceeds in his physical possession occurred as he was enroute to Consumer’s local bank. Kafati’s responsibility to account for the stolen proceeds under these specific particular circumstances is the issue. The trial court rendered judgment in favor of Kafati and Consumer appeals.

Kafati admits signing the written contract but denies having read or understood it and thus seeks, as a threshold issue, to avoid its applicability. His contention on this point has no merit. Clearly, he is presumed to know the content of the contract he has signed and cannot avoid his obligations by contending that he did not read it or that he could not understand its provisions. Ideal Loan of N. O., Inc. v. Johnson, 218 So.2d 634 (La.App. 4th Cir. 1969); South Central Bell Tele. Co. v. McKay, 285 So.2d 563 (La.App. 1st Cir. 1973). Thus, the contract governs if the factual situation falls within its provisions.

Section 5 (of the contract) provides two methods for the transmission of collected funds: (1) Consumer may send its own employee to collect the funds or (2) Kafati may mail the proceeds. The unrefuted testimony regarding what transpired on the day of the theft indicates a third method of transmission, not mentioned in the written contract, was in effect.

Kafati argues that the indemnity provision of the contract which would impose responsibility upon him was altered when he began making delivery of the funds directly to Consumer’s local bank for deposit in their account. He avers that this was a procedure not contemplated — and thus not governed — by the contract. Specifically, he contends that at the moment of the theft he was, in effect, acting for Consumer as their bank messenger.

The record is silent as to the factual basis upon which Kafati began to personally deliver and deposit the proceeds into Consumer’s local bank account. A careful reading of the testimony fails to reveal how Kafati and Consumer confected this arrangement nor is there any evidence outlining the terms or duration of this method of transmitting the funds. We cannot make unsupported assumptions regarding the genesis of this agreement or the circumstances of its birth. Thus, we are unable to fathom the intention of the parties relative to modification or repudiation of the indemnity provision of the written contract.

Though the Code provides us with methods for the interpretation of contracts, here the lack of evidence precludes our utilization of the methodology detailed by the Civil Code and followed by the Supreme Court in, for example, Jacka v. Ouachita Parish School Board, 249 La. 223, 186 So.2d 571 (La.1966). The evidence simply does not show if the parties agreed, or intended to agree, to modification or repudiation of the indemnity provision of the contract when they confected the existent method of transmitting the funds.

We conclude that evidence of the details of the confecting of the method of transmittal of funds (in operation at the time of the undisputed theft) is necessary in order to determine if Kafati must reimburse Consumer under Section 8 of the contract providing for indemnification for losses under certain circumstances or if, on the other hand, the transmittal agreement was apparently independent of the contract under which circumstances Kafati would be acting for and in behalf of Consumer as their messenger.

The judgment is annulled and set aside and this matter remanded for further proceedings consistent with the views expressed herein.

Annulled, set aside; remanded.


source: Caselaw Access Project

author: MORIAL, Judge.

license: Public Domain

text:
    DORVIN-HUDDLESTON DEVELOPMENTS, INC. v. Joseph H. CONNOLLY and Alfred M. Barnes, Sr.
    No. 6962.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Huddleston, Davis, Saunders & Miller, Albert J. Huddleston, New Orleans, for plaintiff-appellee.
    Philip R. Riegel, Jr., Sydney J. Par-longue, New Orleans, for intervenors-ap-pellants.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

On February 11, 1971 Joseph H. Connolly and Alfred M. Barnes, Sr. (Connolly-Barnes) entered into a contract to sell a tract of land to Dorvin-Huddleston Developments, Inc. (Dorvin-Huddleston). Connolly-Barnes thereafter refused to deliver title. On May 3, 1971 Dorvin-Huddleston sued for specific performance and on August 4, 1971 A. K. Roy, Inc. intervened claiming a commission pursuant to a commission contract it entered into with Dor-vin-Huddleston on February 8, 1971. Counsel for Dorvin-Huddleston and inter-venor stipulated in court that if Dorvin-Huddleston were successful in the lawsuit and acquired the land, intervenor would be entitled to its commission at the rate agreed upon.

Dorvin-Huddleston’s suit was dismissed by the district court and the judgment was affirmed by the Court of Appeal. On June 10, 1974, the Supreme Court reversed the judgment of the Court of Appeal and ordered specific performance of the contract dated February 11, 1971. In accordance with that judgment the act of sale was passed September 5, 1974. On October 10, 1974 Dorvin-Huddleston deposited intervenor’s commission into the registry of the court.

The sole issue is the determination of the date from which interest is due on the commission deposited into the registry of the court.

Intervenor contends interest is due from August 4, 1971, the date of judicial demand, through October 10, 1974, the date of the deposit into the registry of the court.

The district court awarded interest from the date of the act of sale to the date of deposit into the registry of the court. We affirm.

The law applicable to this case is found in LSA-R.C.C. Art. 1938 which states:

“All debts shall bear interest at the rate of seven per centum per annum from the time they become due, unless otherwise stipulated.”

The parties in this litigation stipulated as follows:

“It is agreed by and between attorneys for Dorvin-Huddleston, Inc. and A. K. Roy, Inc. that if Dorvin-Huddleston Developments, Inc. is successful in the suit and acquires the land involved in the lawsuit, then, and in that event, it is stipulated by counsel for plaintiff and counsel for A. K. Roy that there be judgment awarding A. K. Roy, Inc. a commission at the rate of one-third of two hundred dollars per acre for the number of acres on which the ultimate purchase price is based. * * * ” (emphasis supplied)

This stipulation has the effect of law between the parties and must be enforced by the court. See Hair v. City of Baton Rouge, 297 So.2d 451 (La.App. 1 Cir. 1974).

The stipulation clearly provides that only if the lawsuit is successful and Dorvin-Huddleston acquires the land will interve-nor be entitled to its commission. Therefore, the debt could only become due at the acquisition. Accordingly, the district court’s award of interest from the date of the act of sale through the date of deposit of the funds into the registry of the court is correct.

Affirmed.


author: DOMENGEAUX, Judge.

text:
    Howard Joseph LANDRY et ux., Plaintiffs and Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants and Appellees.
    No. 5176.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      L. Hallman Woods, New Iberia, for plainti f f s-appellants.
    Roy & Forrest by L. Albert Forrest, New Iberia, Allen, Gooch & Bourgeois by Michael Harson, Lafayette, J. B. Willis, St. Martinville, for defendants-appellees.
    Before DOMENGEAUX, WATSON, and BEER, JJ.
   DOMENGEAUX, Judge.

This is a suit for personal injuries, property damages, and workmen’s compensation benefits. On January 22, 1970, plaintiff, Earline Floyd Landry, and one of the defendants, May Fusilier Charles, were co-employees of Pullen Molded Products, Inc., and had just completed their work for the day. While on their employer’s parking lot operating their respective automobiles, in preparation to depart for their homes, the defendant, May Fusilier Charles, struck Mrs. Landry’s vehicle from the rear. As a result of this accident Mrs. Landry and her husband filed suit against May Fusilier Charles, (an uninsured motorist), and State Farm Mutual Automobile Insurance Company, the Landry’s liability carrier, under the uninsured motorist provision of the policy. The suit was for alleged injuries incurred by Mrs. Landry, and for property damage to the Landry vehicle. By supplemental petition the plaintiffs claimed compensation benefits for Mrs. Landry from Travelers Insurance Company, the workmen’s compensation carrier of Mrs. Landry’s employer, Pullen Molded Products, Inc. All defendants answered the suit with State Farm and Travelers making third party demands against May Fusilier Charles for indemnity and contribution as the uninsured motorist and alleged tort feasor. Additionally, State Farm claimed a credit for any workmen’s compensation benefits awarded Mrs. Landry by Travelers.

The suit emanating from the January 22, 1970, accident was consolidated for trial with another suit by the plaintiffs resulting from an accident of November 29, 1968, involving a collision between Mrs. Landry, who was driving her automobile, and a municipal garbage truck which was being operated by an employee of the City of New Iberia.

At the conclusion of the consolidated trials the District Judge dismissed plaintiffs’ suit in connection with the November 29, 1968 accident on the basis that plaintiffs had failed by a preponderance of the evidence to prove negligence on the part of the driver of the municipal garbage truck. Concerning the suit resulting from the accident of January 22, 1970, the trial judge ruled that the accident was caused by the exclusive negligence of defendant, May Fusilier Charles, held her responsible to the plaintiffs for damages, and awarded them uninsured motorist benefits against State Farm, subject to a credit for the medical expenses which were cast against Travelers as workmen’s compensation benefits. The District Judge held that Mrs. Landry was entitled to no weekly compensation for disability and further that State Farm and Travelers were each entitled to judgment against May Fusilier Charles for indemnity, for the sums for which they were cast.

The decision of the trial court in the first suit (November 29, 1968) is not appealed. The plaintiffs have appealed the judgment of the District Court insofar as it concerns the second accident (January 22, 1970), and none of the other parties have answered the appeal nor appealed themselves.

The issues are:

(1) At the time of the 1970 accident, had Mrs. Landry completely recovered from injuries alleged to have been sustained in the 1968 accident?

(2) Were all complaints by Mrs. Landry following the 1970 accident proven to be a result of the 1970 accident only?

(3) Did Mrs. Landry suffer only “a mild whiplash” as a result of the 1970 accident?

(4) Was the tort award of $500.00 for pain and suffering awarded Mrs. Landry as a result of the 1970 accident inadequate ?

(5) Did the trial court err in allowing the defendant State Farm a credit for workmen’s compensation medical expenses paid by Travelers Insurance Company?

We find that the reasons for judgment authored by the District Judge are comprehensive, and fully explanatory, and support the evidence concerning the first four issues herein and we quote with approval his reasons in those connections as follows:

“. . . The plaintiff, Mrs. Earline Landry, had been involved in two automobile accidents, one of which occurred on November 29, 1968, and the other accident occurred on January 22, 1970. Subsequently, suit was filed on both accidents and at the conclusion of the trial on the merits the Court found in favor of the defendants in the November 29. 1968 accident, and in the reasons handed down [sic — herein] by the Court found for the plaintiff in the second accident. The sole issues to be decided here are the amount of damages sustained by Mrs. Landry, and further, are these damages (injuries) compensable under workmen’s compensation.
The second automobile accident occurred on January 22, 1970, when the vehicle being operated by plaintiff, Mrs. Earline Landry, was struck from the rear by a vehicle being driven by defendant, May Fusilier Charles, an uninsured motorist. State Farm Mutual Automobile Insurance Company is made a defendant in this action by reason of the uninsured motorist provision in its policy issued to the plaintiffs.
At the time of the January 1970 accident, Mrs. Earline Landry was employed at Pullen Molded Products, Inc., now Keyes Fiber Company. The Travelers Insurance Company is made a defendant herein .as the workmen’s compensation insurer of Pullen Molded Products, Inc. The workmen’s compensation claim is alternative to the suit against the alleged tort feásor and the uninsured motorist insurer, and further, is made only in the event that the Court should find that Mrs. Earline Landry was within the course and scope of her employment at the time of the January 1970 accident.
This Court shall first determine the issue of damages wherein plaintiffs have taken the position that the accident of January 22, 1970, caused Mrs. Landry to suffer a whiplash-type injury, and they argue that she presently suffers from a thoracic outlet syndrome, allegedly resulting from the 1970 accident.
Dr. J. L. Comeaux, a general practitioner who began treating Mrs. Landry on January 23, 1970, diagnosed her 1970 injury as a mild whiplash. Dr. Co-meaux, the treating physician, prescribed some muscle relaxants and analgesics for Mrs. Landry. (Comeaux Dep. p. 22). He did not think it necessary that Mrs. Landry wear a cervical collar, and found that all objective signs of injury had disappeared sometime in March 1970. (Co-meaux Dep. pp. 6 and 21).
After March of 1970, Mrs. Landry consulted Dr. Rivet in Lafayette, and Dr. McCutchen of Houston, Texas, for a further diagnosis.
Dr. John J. McCutchen diagnosed Mrs. Landry’s condition as thoracic outlet syndrome. In arriving at this, he relied upon the positive results of two different performances of the Adson Maneuver and upon the complaints related by Mrs. Landry. (McCutchen Dep. pp. 9-10, 14). Dr. McCutchen’s diagnosis of thoracic outlet syndrome significantly relied upon Mrs. Landry’s subjective complaints.
Dr. James Gilly, who examined Mrs. Landry after the first accident, prior to the second accident, stated that if a person had a vascular problem (thoracic outlet syndrome), he would expect the results of the Adson test to be one hundred percent positive on each testing day. (Gilly Dep. p. 18). He performed the Adson Maneuver when he examined Mrs. Landry on December 17, 1968, September 3, 1969, and November 10, 1969. All of these Adson tests were negative, and Dr. Gilly felt that, based on these results and his examinations of Mrs. Landry, she had no indication of a thoracic outlet problem. (Gilly Dep. 9).
It was seen in the testimony of Dr. Gilly that during his treatment of Mrs. Landry in 1968 and 1969, she had complaints of spasm of the right upper extremity, cramps in her arms, numbness in her hands, and pain running from her neck toward both shoulders. (Gilly Dep. 5, 8 .and 11). Dr. Edwin Landry, a general practitioner who first saw Mrs. Landry following the first accident, testified that, in January, February, and March, 1969, she complained of radiating pain in the arms. (Landry 9-10).
Therefore, it is clear that Mrs. Landry’s complaints which are allegedly referable to the thoracic outlet existed well in advance of the January 1970 accident.
In direct opposition to the expert testimony of Dr. McCutchen was the testimony of Dr. Rivet, a Lafayette neurosurgeon within whose specialty the syndrome falls. Dr. Rivet found negative results on each of the occasions he performed the Adson Maneuver on plaintiff. Both these occasions were after the second accident and Dr. Rivet positively testified that in his opinion, plaintiff did not have the syndrome following the second accident. (Rivet Dep. p. 12 and App. Note 20 and 21). Additionally, he was of the opinion that the syndrome would not even be produced by an automobile accident. (Rivet Dep. p. 18, App. Note 22).
Clearly, the experts’ testimony is in conflict on the question of the Adson test. It is important to note here that, according to Dr. Gilly, in order to base a diagnosis of the syndrome on a positive Adson test, it should show positive with 100% consistency on every testing day. (Gilly Dep. p. 18). It was not, as shown above.
Dr. McCutchen is a neurologist who performs no surgery and is not even Board-certified. He admittedly based his diagnosis primarily on plaintiff’s subjective complaints, (McCutchen Dep. 14-15), and secondarily, on a subjectively based test referred to as the Adson Maneuver. (App. Note 12 and 14).
Medical evidence must therefore be said to preponderate against finding that plaintiff suffered from a thoracic outlet syndrome. This Court finds that plaintiffs have not carried their burden of proving that a thoracic outlet syndrome developed as a result of the second accident.
Defendant, May Charles, testified that when her car collided with Mrs. Landry’s vehicle, the two women had completed their work shift at Pullen Molded Products, Inc., and Mrs. Landry was waiting to turn onto Admiral Doyle Drive at which time the Charles vehicle jumped forward, thereby coming into contact with the rear of the Landry automobile. (Tr. 33-34, 167-168). The resulting property damage amounted to only about $50.00 to the Charles vehicle and slightly more than $100.00 to the Landry automobile. (Tr. 168; Plaintiff’s Exhibit 4). Mrs. Landry’s testimony was that there were cars in front of her, but the impact caused her car to move forward only about one or two feet, thus she did not hit the car ahead of her. (TR. 127-128). Additionally, she testified that she was wearing a cervical collar at the time of the collision, knew that there would be a collision, and had prepared and braced herself for the impact. (TR. 128; 163).
Mrs. Landry’s own testimony is important here. She testified to the following at page 163 of the transcript:
‘Q. Now, Mrs. Landry, isn’t it a matter of fact that at the time of the second accident you were still having- pain in the neck and arms which you, yourself, said were caused by the first accident ?’
‘A. Right.’

Also, she stated the following on that same page:

‘Q. My question was this: Did you at one time maintain that after the accident in January of 1970 that you were suffering no pain which you were not already suffering as a result of the first accident ?’
‘A. Right.’
Regarding disability, the Court recalls that John Anderson, an employee of Pul-len Molded Products, Inc., testified that Mrs. Landry was able to do all of her work, and that she worked as much and as fast as .any of the other employees. (TR. 55 and 69). Furthermore, Shirley Louviere, Mrs. Landry’s production foreman, testified that she did everything expected of her, and that she was never given any special consideration. (TR. 78 and 87).
The Court further notes that Travelers’ Exhibit Number One reflects that Mrs. Landry worked steadily for eight weeks and a part of the ninth week subsequent to the 1970 accident.
It is therefore the opinion of this Court that, Mrs. Landry, as diagnosed by her treating physician, sustained only a minor whiplash as a result of the second accident. This Court also finds Mrs. Landry did have preexisting neck problems and that this condition was temporarily aggravated, again as a result of the second accident.
This conclusion is easily reached upon considering Mrs. Landry’s statements whereby she herself acknowledged that she felt no pain after the second accident, which she wasn’t already suffering. Further, Dr. Comeaux, the treating physician, testified that all objective signs of Mrs. Landry’s injury had disappeared in March of 1970, some month and one-half after the accident.
It has been heretofore determined that May Fusilier Charles was negligent in the operation of her automobile and that this negligence was the proximate cause of the accident which resulted in damage to Mrs. Landry. . . . . .”

The trial judge also concluded that Mrs. Landry was in the course and scope of her employment at the time of the accident of January 22, 1970, citing Baker v. Texas Pipe Line Company, 5 La.App. 25 (2nd Cir. 1926); Thibodaux v. Yount Lee Oil Company, 13 La.App. 591, 128 So. 709 (1st Cir. 1930); Bates v. Gulf States Utilities Company, 249 La. 1087, 193 So.2d 255 (1966). The general rule of those cases is set out in Malone, Workmen’s Compensation Law and Practices, Sec. 169 (1951 Edition) as follows:

. . Furthermore, even if he has finished the day’s work and is preparing to leave, or is in the act of leaving, he is entitled to a reasonable period while still on the premises which is regarded as within the course of the employment. The working day embraces these intervals just as it includes reasonable periods for rest, relaxation or the attendance of personal needs . . . ”

No issue is made of the District Court’s conclusion that Mrs. Landry, at the time of her accident, was covered by the Workmen’s Compensation Act, nor that there was error in not awarding her weekly compensation benefits. Actually the record reflects that Mrs. Landry performed her work satisfactorily and without difficulty at Pullen from the time of the January 22, 1970 accident until the time that she discontinued her employment.

We opine that the reasoning of the District Court adequately disposes of the first three issues. On the fourth issue we conclude that the District Judge did not abuse his discretion in awarding Mrs. Landry the sum of $500.00 in tort damages as a result of the 1970 accident. Bitoun v. Landry, 302 So.2d 278 (La.1974).

Concerning issue number five, the District Court granted judgment in favor of plaintiffs and against the uninsured motorist carrier, State Farm, in the full sum of $1,507.98, subject, however to a credit of $1,007.98, which was the amount that Travelers paid plaintiffs in medical expenses under workmen’s compensation. This credit was presumably granted by virtue of an exclusionary clause contained in State Farm’s policy concerning uninsured motorist protection which provided that any amount payable thereunder shall be reduced by “(2) the amount paid and the present value payable on account of such bodily injury under any workmen’s compensation law, disability benefits law, or any similar law . . .”

We believe that the District Judge erred in allowing such credit, as being contrary to the provisions of LSA R.S. 22:1406(D)(1). That statute, as it read on the date of the 1970 accident, required that, absent rejection by an insured, each automobile liability insurance policy include uninsured motorist coverage in not less than $5,000/$10,000 limits.

An insurance company may, in the absence of statutory provisions to the contrary, limit its liability and impose conditions on its obligations, not inconsistent with public policy. But where the limitation written into the policy is directly contrary to the affirmative legislative declaration establishing minimum limits of coverage in uninsured motorist policies, such limitation can not be given effect.

In Williams v. Buckelew, 246 So.2d 58 (La.App. 2nd Cir. 1970), a case which involved a similar issue, it was held that the provisions of the uninsured motorist policy providing for credit for workmen’s compensation benefits paid were invalid in that the effect of such provisions would be to reduce the policy limits below the minimum required by R.S. 22:1406(D) (1). Although in that case the total ad damnum was greater than the $5,000 policy limit, nevertheless we feel that the rationale therein is applicable to the present case. The legislative prescription of minimum coverage obviously contemplates an effective coverage for losses up to the specified amount.

There are many cases of recent vintage in our jurisprudence which have interpreted the uninsured motorist provisions in policies under R.S. 22:1406(D), in which instances exclusionary clauses concerning uninsured motorist coverages have been invalidated as being contrary to the statutory mandates. Generally these cases hold that each such policy must effectively provide not less than the minimum coverage required by the Uninsured Motorist Statute, and any effort to reduce or deny this mandatory coverage will not be given effect. For example, see Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 185, 259 So.2d 22 (1972); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Hehert v. Green, 311 So.2d 223 (La.1975) ; Crenwelge v. State Farm Mutual Automobile Ins. Co., 277 So.2d 155 (La.App. 3rd Cir. 1973); Roberie v. State Farm Mutual Automobile Insurance Company, 291 So.2d 923 (La.App. 3rd Cir. 1974) ; Wilkinson v. Fireman’s Fund Insurance Co., 298 So.2d 915 (La.App. 3rd Cir. 1974).

For the above and foregoing reasons the judgment of the District Court is amended so as to delete therefrom the credit in the amount of $1,007.98 in favor of State Farm Mutual Automobile Insurance Company, as representing the medical expenses paid to plaintiffs by Travelers Insurance Company under workmen’s compensation.

In all other respects the judgment of the District Court is affirmed.

Costs of this appeal to be pro-rated equally between plaintiffs-appellants and defendant-appellee, State Farm Mutual Automobile Insurance Company.

Affirmed in part, amended in part, and rendered.

      . Described as a condition where there is a compression of the neurovascular components emerging out of the cervical area of the spine, resulting in some motor sensory loss or dis-function in that area.

      . Dr. McCutchen is a neurologist and Dr. Rivet is a neurosurgeon.

      . The Adson Maneuver is a test to determine whether a person may have a thoracic outlet syndrome. The examiner causes the patient’s shoulder to be elevated and externally rotated and places his hand on the radial pulse of the patient, who is asked to turn the head to one side and backward, take a deep breath and hold it. If the test is positive, the radial pulse is blotted out at the wrist. If it is negative, the pulse is still discernable.

      .Dr. Gilly, now deceased, was an orthopedic surgeon.

      . There is no evidence as to why Mrs. Landry left her employment at that time, or why she failed to return.


author: BEER, Judge.

text:
    Raymond ROCHON v. MORGAN TAXI COMPANY, INC.
    No. 5168.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Pugh, Buatt, Landry & Pugh, Kenneth O. Privat, Crowley, for plaintiff-appellant.
    Roy & Forrest, by L. Albert Forrest, New Iberia, for defendant-appellee.
    Before DOMENGEAUX, WATSON and BEER, JJ.
   BEER, Judge.

This case involves a claim by Raymond Rochon for damages resulting from his alleged injury occasioned by a two car collision in the early morning hours of October 24, 1973 on US Highway 90 just west of Rayne, Louisiana.

Rochon’s vehicle was struck from the rear by a taxi cab owned by Morgan’s Taxi Company and driven by their employee, Abraham Jeffers.

Despite the obvious first impression implications which the physical factors would indicate, the able District Judge concluded that this was not a usual rear end collision but one resulting from unusual circumstances which bar plaintiff’s recovery. We affirm.

Rochon admitted that he spent the night and early morning “chasing women” while “hanging out” at a nightclub known as Flea’s & Lee’s in Crowley, but denies having had anything at all to drink throughout the evening and early morning. He contends that he spent most of the time “hanging around” or “riding around”.

The accident occurred at about 5:00 a. m. Jeffers, the taxi driver, testifies without equivocation that Rochon engaged in horseplay on the highway. His alleged antics consist of speeding up, passing the cab, and then once in front of it, jamming on his brakes in order to force a quick stop on the part of the taxi cab. There was conflicting testimony on this important issue. The District Judge made a credibility determination, believing the version recited by Jeffers.

The physical facts described by the investigating state trooper, Darby D. Vero-nie, confirmed the trial court’s finding that plaintiff’s automobile left forty-seven feet of discernible skid marks on the highway and that the taxi cab left forty-four feet of discernible skid marks on the highway, both sets terminating in the area of the impact.

We find no merit in plaintiff-appellant’s contention that trooper Veronie testified beyond his capacity as investigating officer. His testimony simply confirms the length, location, and termination of skid marks in question leaving the able District Judge to make such conclusion as he deemed warranted. He concluded that Rochon was negligent and we agree.

Having determined that Rochon was guilty of negligence proximately causing the accident which forms the basis for this claim, we need not give consideration to the alleged injuries occasioned to him. The judgment of the District Court is affirmed at appellant’s cost.

Affirmed.


author: WATSON, Judge.

text:
    Jessie LAIR et ux., Plaintiffs-Appellees-Appellants, v. ELECTRIC MUTUAL INSURANCE COMPANY et al., Defendants-Appellants-Appellees.
    No. 5164.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Stafford, Pitts & Stafford by Hodge O’Neal, Alexandria, for defendants-appellants-appellees.

      McLure & McLure by T. C. McLure, Jr., Alexandria, for plaintiffs-appellees-appellants.
    Before DOMENGEAUX, WATSON and BEER, JJ.
   WATSON, Judge.

An automobile driven by the defendant, Mervin J. Vercher, and insured for public liability by the defendant, Electric Mutual Insurance Company, struck the rear of an automobile driven by plaintiff, Jessie Lair, in which his wife, the plaintiff Lucille Lair, was a passenger on August 3, 1974. This resulting lawsuit was tried and special damages were awarded to Jessie Lair in the amount of $141.47 and general damages to Lucille Lair in the amount of $4,000. The defendants have appealed the judgment, contending that the amount awarded Mrs. Lair is grossly excessive and the plaintiffs have appealed, contending that the award to her is inadequate.

Liability is not contested, and the only issue on appeal is whether the award is excessive or inadequate.

Defendants point to two principal facts in support of their contention that the award is far out of proportion to the injuries. First, the damages to the Lair vehicle were only $121.47, according to an estimate filed in the record as P-1. Second, Mrs. Lair sought and received only the barest minimum of medical attention following the accident. Immediately after the accident, she reported to the emergency room of an Alexandria hospital where she was examined and x-rayed. She was not hospitalized, but she was given a prescription for pain pills and released. Thereafter, she did not have any additional medical treatment.

However, some four months post-accident the defendants obtained an examination of Mrs. Lair by Dr. T. E. Banks, a well-recognized orthopedic surgeon of Alexandria. He diagnosed her injury as a “mild cervical strain” (Dep. 13). Dr. Banks reported a finding of persistent tenderness in the right side of her neck at about the second cervical vertebra. He also found some discomfort on bending of the neck and found consistent her complaints of pain radiating to the side of the neck and down the sternocleidomastoid muscle. Dr. Banks gives his opinion that her symptoms and complaints should not persist beyond a six to eight-week period following examination, although he stated that recovery varies from individual to individual.

Dr. Banks’ testimony was filed in evidence by deposition on behalf of the defendants.

The trial judge had the benefit, not only of Dr. Banks’ deposition, but also of seeing and hearing the plaintiff, Lucille Lair. He was in a position to evaluate the sincerity of her complaints.

While the amount awarded for pain, suffering and disability may be in the high range of the trial court’s discretion, we cannot say that he abused the authority vested in him by Louisiana Civil Code article 1934. McDonald v. Fidelity & Casualty Company of New York, 317 So.2d 267, (La.App. 3 Cir. 1975); Bitoun v. Landry, 302 So.2d 278 (La.1974); Fox v. State Farm Mutual Automobile Insurance Co., 288 So.2d 42 (La.1973).

Therefore, we do not find the award excessive, and likewise, we find no merit to the contention that the award is inadequate.

The judgment of the trial court is affirmed and the defendants, Mervin J. Ver-cher and Electric Mutual Insurance Company, are casts for costs.

Affirmed.


text:
    Adrienne R. LAHAYE, Plaintiff and Appellee, v. Josette R. CANON, Defendant and Appellant.
    No. 5155.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Thomas E. Guilbeau, Lafayette, for defendant-appellant.
    Sandoz, Sandoz & Schiff, by Leslie J. Schiff, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON, and HALL, JJ.
   DOMENGEAUX, Judge.

The parties to this litigation are sisters, and were sent into possession, in indivision, through proper probate proceedings, of the assets of their deceased mother, Mrs. Elise P. Regard. Differences arose between the sisters, principally in connection with certain items of movable property, and when efforts to partition the chattels proved unsuccessful, plaintiff-appellee, Adrienne R. LaHaye, filed a partition suit against defendant-appellant, Josette R. Canon. Various pleadings and supplemental pleadings were filed by both parties and in due course the District Judge ordered a partition by licitation, decreeing that all movable property listed be delivered to the Sheriff in order for the latter to sell the assets at public sale.

The public sale was subsequently held by the Sheriff after due advertisement, etc., at which time the plaintiff, Mrs. LaHaye, became the last and highest bidder for the property. There were ten items of movable property which were included in the list of items bought by Mrs. LaHaye, but which had not been delivered to the Sheriff by Mrs. Canon, who had actual possession of the items. The District Judge referred the parties to a Notary to complete the partition. The Notary prepared a document entitled “Partition of Proceeds of Sale” which refers to and annexes by reference the judgment of the court ordering the partition sale, and the proces verbal of the Sheriff concerning said sale which reflected the names of the purchasers, the items purchased, and the amounts paid for each item. The document set out the aggregate sum received for all items, which, after court costs, amounted to a net sum of $59,129.48. These funds were distributed to the parties in proportions of one-half to each, and each party acknowledged receipt of her portion and gave full acquittance and discharge therefor. The document further recited that the parties were satisfied with the partition and included the other usual discharge and release language found in documents of this type. The parties signed the documents, without objection or question, on June 6, 1973. Notwithstanding, Mrs. Canon refused to deliver to Mrs. LaHaye the ten items of movable property which Mrs. LaHaye had purchased at the judicial sale.

As a consequence, the plaintiff, Mrs. LaHaye, filed a “Rule to Show Cause” reciting the chronology of legal proceedings which culminated with the adjudication to Mrs. LaHaye of certain properties, including the ten items of movables which Mrs. Canon refused to deliver to her sister, and praying that a Rule issue directing Mrs. Canon to show cause why Mrs. LaHaye should not be decreed the owner of the ten items purchased by her. The ten items in question are:

1. One (1) antique chair
2. One (1) glass bookcase with desk and chair
3. One (1) cedar chest
4. One (1) coffee table
5. One (1) Rolex watch with gold bracelet
6. One (1) antique setee
7. One (1) upholstered rocker
8. One (1) foldaway bed
9. Two (2) old French books
10.One (1) green web chair

To this rule, the defendant, Mrs. Canon, filed an exception of no cause or right of action on the basis that the parties had previously entered into a complete partition (as prepared by the Notary) which settled the question of ownership and right to possession, and consequently the rule was an unauthorized use of summary process, and that Mrs. LaHaye’s remedy, if any, was by separate suit for possession by ordinary process.

The rule was tried, the exception overruled, and judgment was granted (among other things not pertinent herein) declaring Mrs. LaHaye the owner of nine of the ten items in controversy. (The judgment, however, did not order that Mrs. Canon deliver these items to Mrs. LaHaye, or that Mrs. LaHaye be otherwise placed in possession of these items.) It is from this decree that Mrs. Canon has appealed sus-pensively to this court.

Appellant cites the following errors:

1. The District Court erred in denying defendant’s exception of no cause or right of action and allowing plaintiff the unauthorized use of summary process, namely, the rule to show cause.

2. The District Court erred in finding that the partition of proceeds of sale executed on June 6, 1973, was not a full and complete settlement of all matters between the parties, including the issues of ownership and possession.

3. The District Court erred in finding from the evidence that the ownership of the property in question was properly transferred to the plaintiff.

On the first issue, we conclude that Mrs. LaHaye’s claim to ownership is based upon the proces verbal of the Sheriff’s sale and the subsequent acceptance of the settlement by the parties. Mrs. LaHaye was the highest bidder at the Sheriff’s sale, and purchased a number of items including those upon which this controversy is based.

Article 2592 of the Code of Civil Procedure sets out the circumstances under which summary proceedings may be utilized. One such instance is set out in paragraph one of that article, to-wit:

“An incidental question arising in the course of litigation

The present rule to show cause is merely another facet of the continuing controversy, i. e. the partition of movable effects.

The judicial sale and subsequent partition of the proceeds should be viewed as a single continuing legal action. Actually, Mrs. LaHaye is merely asking that she be sent into possession of those items which she purchased and that the possessor of those items, Mrs. Canon, be ordered to allow her to take" lawful possession. This request is based upon the proper transfer of the items via the judicial sale to Mrs. LaHaye. The sale was held to effect the trial judge’s order that the property be partitioned. As such the request by Mrs. LaHaye to be placed into possession was clearly incidental to the entire matter which had been litigated.

There is no clear guideline in the statute involved, Article 2592, Code of Civil Procedure, nor does the jurisprudence specifically delineate between incidental matters arising in the course of litigation and those issues which are outside the scope of this article and which should be decided by ordinary process. We hold that there is sufficient connexity between the issue raised in the rule to show cause in this case and the matters involved in the main litigation to justify the use of summary proceeding based upon Article 2592 of the Louisiana Code of Civil Procedure.

Appellant’s second contention actually raises no issue which would adversely affect the judgment of the trial court. Appellant argues that the acceptance by all parties of the partition evidenced by their signature of the notary’s “Partition of Proceeds of Sale” amounts to an homolo-gation of the partition. We feel that appellant’s assumption is a valid one; however, by the homologation the parties merely admit that the partition has taken place and has been accepted. Since the notary’s “Partition of Proceeds of Sale” refers to the Sheriff’s proces verbal and the transfers contained therein, the homologation of the partition actually reinforces Mrs. La-Haye’s claim to the disputed property.

Finally, the appellant urges that the Sheriff’s sale be declared invalid because the contested movable items transferred at the sale had never been actually seized by the Sheriff pursuant to Article 326 of the Louisiana Code of Civil Procedure. We find it unnecessary to rule upon that issue because the subsequent acceptance of the partition and sale as evidenced by the parties’ signature of the document entitled “Partition of Proceeds and Sale” acts as a ratification of the sale, thus curing any defects which may have existed in the procedure used in affecting the sale.

In the case of Latham, et al v. Glasscock, 160 La. 1089, 108 So. 100 (1926), the Sheriff failed to serve the writ of attachment on any of the parties involved. However, some of the parties later signed a document ratifying the sale and the Supreme Court held this ratification to overcome the defects caused by the informalities in procedure. Also in Daigle v. National Cash Register Company, 7 Orleans App. 177, the Court held that although a sale under process or order of Court may be invalid because of defects, it may be nonetheless valid as a conventional sale with the consent of the parties. In the instant case Mrs. Canon and Mrs. LaHaye both signed the document entitled “Partition of Proceeds of Sale” which states in part:

“The said parties severally declare and acknowledge that they are fully satisfied with the partition herein made and consider the same to he just, true and equitable; that they approve the aforesaid sale and do hereby mutually discharge and release each other of and from all claims, matters and things whatsoever regarding the said partition, and concerning their aforesaid joint interests and ownership in common heretofore existing between them.” (emphasis added)

By the explicit language of this act it was clearly the intent of the parties to accept the sale and partition unconditionally. Once this acceptance was made, Mrs. Canon ratified the sale and thereby waived the right to object to any defects or irregularities in the sale or partition proceedings.

As stated in Williams v. Brocato, 194 So. 67 (La.App. 2nd Cir. 1940):

“It has long been held by the courts of this state that one cannot claim, judicially, the proceeds of a sale and afterwards attack that sale for nullity. The demand for the proceeds is the judicial admission of the legality of the sale and the declaration which one makes in a judicial proceeding is full proof against him.”

Mrs. Canon’s signature on the “Partition of Proceeds of Sale” amounted to a judicial claim (in the course of the partition suit) to the proceeds of the sale. The claim for the proceeds of the sale and the allegation of irregularities in the sale were mutually exclusive. Mrs. Canon could not have it both ways. Therefore, Mrs. Canon’s written acceptance of the sale and claim for the proceeds were binding and estopped her from later assertions of illegality of the sale itself.

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

Affirmed.

      .The order listed botli movable and immovable property to be sold, but this appeal concerns itself only with nine items of movable property which are identified later in the opinion.


author: HOOD, Judge.

text:
    Mrs. Theresa GUIDRY, Plaintiff-Appellee, v. Emile A. CARMOUCHE, Defendant-Appellant.
    No. 5080.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      Emile A. Carmouche, and Philip J. Chappuis, II, Crowley, for defendant-appellant.
    Adam G. Nunez, Lake Charles, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

Mrs. Theresa Guidry instituted this suit against Emile A. Carmouche to recover the sum of $2,882.20 which she alleges is due her under a compromise agreement entered into between the parties. She seeks, alternatively and in the event the compromise agreement is held to be invalid, to recover a larger sum alleged to be due by defendant under the original indebtedness.

The trial court rendered judgment in favor of plaintiff, awarding her $1,382.20 as the amount due under the compromise agreement. Defendant appealed. Plaintiff answered the appeal praying that the amount of the award be increased, or that the case be remanded for additional evidence. Plaintiff also demands damages for a frivolous appeal.

The principal issue presented involves an interpretation of the compromise agreement.

Defendant Carmouche, a practicing attorney, represented plaintiff in some legal matters prior to June, 1970. Shortly before the last mentioned date a dispute arose between the parties as to whether Carmouche was indebted to plaintiff, and if so, as to the amount of that indebtedness. Plaintiff engaged another attorney, the Honorable Daniel J. McGee, to represent her in connection with her claim against Carmouche, and after some negotiations, a compromise agreement was entered into between plaintiff and defendant which purported to settle their differences.

The compromise agreement was reduced to writing, it is dated June 11, 1970, and it was executed by the parties and by the attorney who represented plaintiff at that time. The agreement reads as follows:

“Mr. Emile Carmouche and I have discussed the Theresa Guidry Matter, and he proposes the following action at this time:
“Mr. Carmouche denies that to the extent of his knowledge he is indebted to Theresa Guidry in any amount whatsoever. He also acknowledges that during the representation of her there were certain documents upon which she claims she is due certain monies. In order to avoid any undue difficulty between himself and Mrs. Guidry, he is willing to and does today present to rpe his check to me for $1500.00 so that I can turn the check over to Theresa Guidry with the following understanding. The check is not to be considered an admission of any liability of any kind whatsoever, and his action in so doing, together with the following, is an effort on his part to avoid unpleasant litigation or any damage to either party. Theresa Guidry is claiming a balance due her of $2,882.20. Mr. Carmouche is to obtain further records and evidences concerning the transactions and representations between them as soon as conveniently possible and certainly within the next six months in an effort to resolve the matter amicably and with full understanding of the situation. In the event that the records and other notations or evidences do not satisfy Mrs. Theresa Guidry and/or her attorney, then Mr. Carmouche will by the end of the six months nevertheless pay the balance of said claim, still not, however, in any way admitting liability therefor and only for the reasons stated above. The $1500.00 check is to be given to Theresa Guidry only on condition that she acknowledge in writing her understanding and concurrance in the foregoing and accepts the situation as presented herewith regarding future course of this problem.
“Mamou, Louisiana, this 11th day of June, 1970.”

This suit was filed on February 17, 1972. Plaintiff alleges that the sum of $2,882.20 is still due on the compromise agreement. Defendant answered generally denying all material allegations in the petition, but he did not allege any affirmative defenses to plaintiff’s demands.

At the trial of the case on the merits, plaintiff introduced the compromise agreement and the testimony of Mr. McGee, who originally had represented plaintiff in connection with this claim. Defendant conceded that the compromise agreement was valid, and the trial judge thereupon excluded evidence which plaintiff sought to introduce tending to show the amount of the original indebtedness or to support her alternate demand.

The trial judge concluded that the compromise agreement was valid. He interpreted that contract to mean, however, that the total amount claimed by Mrs. Guidry originally was $2,882.20, and that the payment of $1500.00 made by defendant should be applied to that indebtedness, leaving a balance due by Mr. Carmouche of only $1,382.20. He accordingly rendered judgment in favor of plaintiff and against defendant for that amount.

On this appeal defendant contends that the trial judge erred in awarding plaintiff any amount at all. He argues that the evidence does not show “whether or not the defendant has failed or declined to comply with the obligations he assumed under the compromise agreement.” Defendant points out that although plaintiff has alleged non-compliance with the agreement, she did not offer or produce any evidence to prove that defendant has failed or declined to comply with his obligations thereunder.

Plaintiff’s response to that argument is that the position taken by defendant here constitutes an affirmative defense which must be specially pleaded. See LSA-C.C. P. art. 1005. She contends that defendant cannot urge the special defense of extin-guishment of the obligation on this appeal, since it was not specially pleaded in the trial court, and that the burden does not rest on plaintiff to negate payment or ex-tinguishment of the obligation.

We agree with the trial court that the compromise agreement entered into between'the parties is valid, and that defendant’s liability to plaintiff, if any, must be determined from the provisions of that agreement.

In the agreement Carmouche obligated himself, in effect, to pay plaintiff a specified sum of money in the event he should fail to satisfy her or her attorney, within six months, as to the exact amount due. The obligation thus is subject to a suspensive condition. LSA-C.C. art. 2039, 2043. We interpret the stipulations contained in the record as constituting a judicial admission on the part of defendant that he has not produced records or other notations or evidence sufficient to show that he owes less than the amount stipulated in the agreement. The condition which might have relieved him of the obligation thus did not happen.

The issue, as we see it, therefore, is whether defendant owes plaintiff $2,882.20 under the terms of the agreement, or whether he owes the difference between that amount and the $1,500.00 payment which was made, or a balance of $1,382.20.

We are unable to agree with the trial court that the payment made by Car-mouche at the time the compromise agreement was entered into was intended to be applied as a credit on the $2,882.20 indebtedness, leaving a balance of $1,382.20. The agreement, after reciting that defendant was on that date paying $1,500.00 to Mrs. Guidry, then states “Theresa Guidry is claiming a balance due her of $2,882.20.” We interpret that to mean, and we think the parties understood, that Mrs. Guidry was claiming at that time that $2,882.20 was still owed to her after the payment of $1,500.00 had been made. The compromise agreement then continues with the provision that in the event the records produced by Carmouche do not satisfy plaintiff or her attorney as to the amount of the indebtedness, “then Mr. Carmouche will by the end of the six months nevertheless pay the balance of said claim . . .” We think the parties intended that the term “balance of said claim,” was intended to refer to the “balance due her of $2,882.20,” as used in the agreement.

In view of our interpretation of the contract, we conclude that the trial court erred in awarding plaintiff $1,382.20, and that instead the award should have been for $2,882.20. The judgment must be amended to increase the award to the larger sum.

We turn now to plaintiff’s claim that the appeal taken by defendant was frivolous, and that she is entitled to damages as a result of that frivolous appeal.

LSA-C.C.P. art. 2164 which authorizes the award of damages for a frivolous appeal, is penal in nature, and it must be strictly construed. Appeals are favored, and the imposition of penalties for frivolous appeal will not be granted unless they are clearly due, since the award of such penalties will tend to discourage appeals. Dupaquier v. City of New Orleans, 271 So.2d 78 (La.App. 4 Cir. 1972).

Damages for a frivolous appeal are usually not allowable unless it is manifest that the appeal was taken solely for delay or that counsel does not seriously believe in the view of the law he advocates, even though the appeal is without serious merit. Motion Picture Advertising Corp. v. Smith, 207 So.2d 847 (La.App. 1 Cir. 1968); Bergeron v. Southern Farm Bureau Casualty Insurance Company, 169 So.2d 407 (La.App. 3 Cir. 1964).

We do not regard defendant’s contentions in this case to be totally unjustified. A substantial legal question was presented, we think, as to whether plaintiff had the burden of proving that the condition provided in the compromise agreement had been met before defendant became obligated. For these reasons we reject plaintiff’s demand for damages for a frivolous appeal.

For the reasons herein set out, the judgment appealed from is amended by increasing the award made to plaintiff from the sum of $1,382.20 to the sum of $2,882.20, together with legal interest thereon from date of judicial demand until paid, and for all costs of this suit. In all other respects the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

Amended and affirmed.


author: LEMMON, Judge.

text:
    Larry SMITH v. WAY & BRINKS REFRACTORIES CO., INC.
    No. 7104.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Robert A. Anderson, Jr., Rykert O. To-ledano, Jr., Covington, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, James L. Donovan, New Orleans, for defendant-appellee.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   LEMMON, Judge.

The issue in plaintiff’s appeal in this workmen’s compensation action is whether he proved total and permanent disability.

Plaintiff was employed as a brick mason and foreman. On July 3, 1970 he fell 35 feet and sustained a fractured pelvis and fractures of five transverse processes on the left side. He was hospitalized by Dr. Randall Williams, an orthopedic surgeon, who reported that plaintiff did well with bed rest and was discharged in good condition on July 17, to be followed through office visits.

Dr. Williams prescribed the normal conservative treatment for this type of injury, which included bed rest, refraining from weight bearing for a period of time, and gradual ambulation. On October 30, 1970 Dr. Williams found a good range of motion and discharged plaintiff as able to return to his normal duties, assigning a 10% permanent physical disability of the back with an excellent overall prognosis. He had no record of prescribing medication after the hospital discharge, but stated he probably recommended medication for the soreness and stiffness associated with ambulation. Neither did he record any complaints of pain at the time of discharge.

Dr. Williams explained that plaintiff’s was not a serious type of injury such as was likely to produce disability, but was the type of injury which involved considerable pain in the early stages because of inflammation of the muscle tissue attached to the transverse processes and resulting spasm. He further commented that scarring, produced as the muscle heals back to the bony attachment, also produces stiffness and pain, but not of extensive duration.

On the other hand, plaintiff testified that he spent two to three months in the hospital and was sent home, “still paralyzed”, for another month and a half of bed rest in a completely helpless condition. He claimed Dr. Williams had discharged him while he was still on crutches, and he therefore on October 28 consulted Dr. J. R. Diamond, a family practitioner, who specializes in treating trauma cases.

Dr. Diamond found impaired flexion of the hip, limitation of motion and tenderness in the lower lumbar spinous processes and sacroiliac joint, and he diagnosed lum-bosacral and sacroiliac strain, in addition to the healing fractures.- He recommended physical therapy for palliation of pain and restoration of motion and strength.

Plaintiff was administered physical therapy once or twice a week through March 3, when Dr. Diamond reexamined him and again found motion limitation and tenderness. He did not reexamine the pelvis, since plaintiff made no complaints referra-ble to that area, but did X-ray the lumbar spine with no significant findings.

On May 22 plaintiff complained of lum-bosacral pain and of leg cramps at night, and the doctor found tenderness but normal motion.

Dr. Diamond again examined plaintiff in November for neck problems, apparently unrelated to the accident. He reported that plaintiff stopped treatment around that time and didn’s return until March, 1972, when he complained of unabated pain. The doctor referred plaintiff to a neurosurgeon, who examined him but declined to recommend procedures to investigate the disc or nerve root involvement.

Plaintiff returned in March, 1973, but Dr. Diamond’s examination revealed no objective findings. Plaintiff next returned in November, 1973, complaining of pain and stiffness, particularly in the morning. Dr. Diamond prescribed a one-week dosage of anti-inflammatory medication, after which plaintiff was found to be improving. Dr. Diamond then prescribed a two-week dosage, but plaintiff didn’t return for five months, at which time Dr. Diamond prescribed a stronger medicine. Plaintiff never returned thereafter.

Dr. Diamond found no indication of disc problems, but opined plaintiff had “a mechanical low back problem . . . probably a ligamentous injury” and estimated plaintiff to be 35% permanently disabled, “predicated on his pain and suffering.” He also stated plaintiff was unable to climb, lift, stoop or strain.

Plaintiff at time of trial claimed to be in constant pain and testified that his left leg is two inches shorter and two inches larger in circumference than his right (a fact not reported by any doctor). He admitted working regularly since December, 1970, but explained he could not keep up the pace of regular brickwork and had to confine himself to refractory work (industrial work in heaters and such structures of mills and refineries), which involves laying considerably less bricks per day and is regarded to be lighter work. Plaintiff presented two co-workers and his union president to corroborate his position.

Plaintiff’s work record, however, belies his claim as to impaired earning capacity. In 1969 (the year before the accident) he earned appoximately $12,000.00, mostly for work with defendant. His 1971 earnings were approximately the same, his 1972 earnings increased, and his 1973 earnings exceeded $19,000.00, mostly with the company for which he worked regularly at time of trial, but also including about $1,500.00 paid by defendant. (During the same period the hourly wage rate increased about 33%). Additionally, the union president testified that a bricklayer normally worked 1,800 to 2,000 hours per year, which would produce annual earnings of about $16,000.00 at the wage rate in effect at time of trial.

The trial court found that after the accident plaintiff had in fact engaged regularly in work of a similar character to that which he was accustomed to performing and that plaintiff had performed this work in moderate pain, not substantial enough to classify him as totally and permanently disabled. Based on a finding that the usefulness of a physical function has been seriously and permanently impaired, the court awarded 100 weeks of benefits under R.S. 23:1221(4) (p).

The evidence, outlined above in considerable detail, supports the trial judge’s finding that plaintiff could and did perform work of a reasonable character similar to that performed before the injury. The resolution of plaintiff’s claim as to continual and substantial pain is somewhat of a credibility determination, to which a reviewing court should accord considerable weight. Furthermore, plaintiff’s claim in this regard was not substantially supported (and to some extent was contradicted) by the medical evidence.

The judgment is affirmed.

      . Defendant paid compensation benefits through the date of discharge by Dr. Williams.

      . His 1970 earnings before the accident were at about the same monthly rate.


author: STOULIG, Judge.

text:
    OLYMPIC ELECTRIC SERVICE, INC. v. Herbie MILLS, d/b/a Crest Air-Conditioning and Heating Co.
    No. 7008.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Cronvich & Wambsgans, Richard M. Michalczyk, Metairie, for plaintiff-appel-lee.
    Edwards, Porteous & Amato, Jacob J. Amato, Jr., Gretna, for defendant-appellant.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiff, Olympic Electric Service, Inc. (Olympic), was awarded a judgment of $926.16 against the defendant, Herbie Mills, doing business as Crest Air-Conditioning and Heating Co. (Crest). Defendant appealed suspensively, claiming that the judgment is not supported by admissible evidence.

The uncontroverted testimony reflects that, for several years prior to filing suit, defendant engaged the plaintiff to provide electrical services (including labor and materials) for air-conditioning and heating systems defendant had installed. Plaintiff only quoted prices in advance if Crest made a specific request. Of the 19 unpaid invoices upon which plaintiff predicates this claim, we note only one billing exceeds $100. In a photocopy of defendant’s ledger account, attached to and made part of its petition, plaintiff itemizes each contract by residential address and notes payment received on each. Defendant’s answer contained only a general denial and did not set forth any special defenses or pleas. During the course of the trial the defendant admitted that the plaintiff performed the work forming the basis of the petition and did not dispute the amount claimed was unpaid.

Mills did complain in general terms that two of the numerous jobs for which payment is sought in this suit were defective without tendering proof of the cost of remedial work or the alleged defective performance. Maurice Roques, plaintiff’s president, testified that all complaints were adjusted immediately, and the only basis that the defendant urged for the nonpayment of his account was that he did not have the money.

Roques itemized the unpaid amounts due on the account and numerous invoices were introduced to support his testimony. Defendant maintains since Roques did not in each instance personally perform the work or supervise its performance that he was not competent to testify concerning the work covered by the unpaid invoices. Roques stated that though he did not prepare the invoices he did prepare the statements rendered to the defendant. He testified the plaintiff is a small concern employing 8 to IS persons and that he either supervised the performance of the work or checked the quality of workmanship after its performance. Further he stated the invoices were in varying small amounts which would not economically justify the plaintiff having all of its employees present in court for the purpose of identifying each particular invoice. In some instances, the work being so minimal, it would not address itself to the independent recollection of the employee. Unquestionably plaintiff’s president exercised a closer supervision and control over the performance of its employees’ work than is normally exercised by a corresponding officer in a larger concern.

We are of the opinion that the ledger entries and the invoices rendered were the normal entries made during the regular course of plaintiff’s business free of any suspicion of having been made in anticipation of litigation. Assuming ar-guendo, as the defendant contends, that such entries are not entitled to this classification, they would still be admissible as corroborative evidence of the testimony of plaintiff’s president and of the defendant’s admission made in open court that the services had been performed.

In summary we conclude defendant’s admission of the indebtedness and his failure

to establish defective workmanship is, in itself, sufficient to support the judgment.

Accordingly, the judgment appealed from is affirmed; costs of this appeal to be borne by appellant.

Affirmed.

      . Mills testified: “To save some time we did work on all of these jobs that you have listed as evidence.”

      . Mills claimed to encounter a problem at 3904 Haring Road, for which he was billed $12.50, and at his own home, for which he was charged $122.40.


text:
    EDDIE’S HARDWARE, INC. v. Orlando J. RAGO d/b/a R & M Delivery Service.
    No. 7006.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Daniel A. McGovern, IV, New Orleans, for plaintiff-appellee.
    Foster J. Johnson, Jr., New Orleans, for defendant-appellant.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   LEMMON, Judge.

Orlando J. Rago has appealed from a judgment rendered by default in this suit on an open account.

Plaintiff’s petition alleged that it sold and delivered merchandise to defendant as listed on ten charge tickets attached to the petition. The tickets, made out either to R & M Delivery Service, R & M Delivery Company, R & M Trucking, or R & M Transport, were signed by various persons, with three of the tickets bearing the signature of “O. J. Rago”.

As evidence in support of its claim, plaintiff filed only an affidavit of correctness of account, which stated that affiant “is familiar and well acquainted with the account of R & M Delivery defendant in the above captioned case; that the true and correct amount owed to plaintiff on said note by the above named defendant is $112.20 plus interest and attorney’s fees as prayed for; all subject to a credit of $0.” (Emphasis supplied)

Rago filed an application for new trial and now requests a remand in this appeal, seeking an opportunity to prove that the purchases were made by a corporation, R & M Delivery, Inc., and that he was not individually liable. An appeal from a default judgment, however, does not lie for the purposes Rago seeks. In reviewing a default judgment, the appellate court is restricted to the determination of the sufficiency of the evidence offered in support of the judgment.

C.C.P. art. 1702, requiring generally that a judgment of default must be confirmed by proof sufficient to establish a prima fa-cie case, also provides as to open accounts that an affidavit of the correctness of the account shall be prima facie proof. The affidavit in the present case, however, does not even mention Orlando J. Rago, the person named defendant in these proceedings. Neither does the affidavit nor any other evidence provide any basis for holding Rago responsible for the debts of R & M Delivery.

While it appears from the record that defendant was served with the petition and had the opportunity to deny the allegations, a plaintiff in order to confirm a default judgment must nevertheless produce proof of the claim against the party sued. We hold plaintiff’s proof in this case does not support the judgment rendered against Orlando J. Rago.

Accordingly, the judgment of the trial court is set aside, and the case is remanded. Defendant is allowed ten days, from the date this judgment becomes final, to file responsive pleadings. Assessment of costs will await final disposition of the case.

Judgment set aside, case remanded.


author: STOULIG, Judge. LEMMON, Judge

text:
    Paul L. JUAREZ et al. v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORP., LTD.
    No. 7004.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Carl & Roussel, William S. Vincent, Jr., Wayne M. Babovich, New Orleans, for plainti f f-appellant.
    Monte J. Ducote, New Orleans, for defendant-appellee.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiffs, Mr. and Mrs. Paul L. Juarez, have appealed a judgment dismissing their suit against their homeowners insurance carrier, General Accident Fire and Life Assurance Corp., Ltd., seeking reimbursement of a theft loss of personal property from their automobile.

The facts are not disputed. On December 31, 1972, at approximately 3 a. m., after parking their car in a well-lighted parking area of an apartment complex in Houston, Texas, plaintiffs went to inform their host of their arrival. Upon returning to their vehicle some ten minutes later, plaintiffs discovered three suitcases and a medium sized shoebag had been stolen from the luggage rack of their Corvette. There is no space in the interior of this vehicle for luggage storage; therefore, an exterior rack is affixed to the rear deck of the car. At the time of the theft, the luggage was completely wrapped in a canvas canopy, and a one-fourth- to one-half-inch chain was passed through eyelets of this cover and attached to each side of the rack. The ends of the chain were connected with a key-lock. The luggage was further secured with a nylon line wrapped around it at various points. Both the chain and the line had been cut by the thief or thieves and the luggage removed. Admittedly there was no evidence or visible signs of a forcible entry into the Corvette.

The insurer’s policy defense, upheld by the trial judge, is based on this exclusion in the homeowners policy issued to the Juarezes:

“C. Theft Exclusions applicable to property away from the described premises :
“This policy does not apply to loss away from the described premises of:
* * ‡ * * *
(2) property while unattended in or on any motor vehicle or trailer, other than a public conveyance, unless the loss is the result of forcible entry into such vehicle while all doors, windows or other openings thereof are closed and locked, provided there are visible marks of forcible entry upon the exterior of such vehicle, but property shall not be considered unattended when the insured is required to surrender the keys of such vehicle to a bailee * * *(Emphasis added.)

This provision limits the liability under the policy by restricting coverage to loss resulting from forcible entry into the vehicle and removal of property from its interior. The trial court held this exclusion barred recovery because there was no forcible entry into the vehicle. We agree.

Appellants argue the phrase “property * * * in or on any motor vehicle or trailer, * * * [emphasis added]” can reasonably be interpreted to mean luggage stored on an exterior rack, thus we should resolve the ambiguity against the insurer by applying the rule of contractual interpretation set forth in C.C. art. 1958. See Blanchard v. Hanover Insurance Company, 250 So.2d 484 (La.App.1st Cir. 1971).

This argument is meritless because the qualifying phrase beginning with “unless” leaves no doubt the locking and evidence of forcible entry requisites could only apply to thefts from the interior of a locked car or trailer.

Appellants cite decisions that hold theft loss is recoverable where there is evidence of forcible entry and contends the cut ropes and chain satisfy this requirement. These cases do not apply because they are factually distinguishable in that the theft loss was from the interior of the vehicle.

We therefore conclude, as did the trial judge, the policy defense has merit.

For the reasons assigned, the judgment appealed from is affirmed; appellants to bear all costs.

Affirmed.

LEMMON, J., concurs with written reasons.

LEMMON, Judge

(concurring).

The policy provision under consideration is a general exclusion of coverage of dll property stolen while away from the described premises and while “in or on” a motor vehicle. This general exclusion specifies one exception — a loss resulting from forcible entry “into” the vehicle under certain specific circumstances.

I deem it significant that the phrase “in or on” (which plaintiffs rely upon to provide an ambiguity as to the special exception from the exclusion) is part of the general exclusion and is not contained in the special exception.

      . Plaintiffs’ Corvette has no luggage compartment (trunk) and the luggage rack was a factory installed accessory.

      . Schmidt v. Travelers Insurance Company, 259 So.2d 632 (La.App.4th Cir. 1972) ; Petrie v. Millers Mutual Fire Ins. Co. of Texas, 115 So.2d 228 (La.App.Orl.1959).


author: Before MORIAL, Judge.

text:
    Louis J. BROUSSARD v. Armide Barras, wife of Louis J. BROUSSARD.
    No. 6968.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    William J. Lopez, Marrero, for plaintiff-defendant in reconvention-appellant.
    Donald P. Conlay, New Orleans, for defendant-plaintiff in reconvention-appellee.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   Before MORIAL, Judge.

This is a suit contesting a district court’s award of alimony after divorce.

On November 23, 1973 plaintiff sued defendant for a divorce under LSA-R.S. 9:301. Defendant filed an answer and re-conventional demand denying she had voluntarily lived separate and apart and alleging various acts of cruelty on the part of plaintiff. She also prayed for an award of permanent alimony based upon the plaintiff being at fault in causing the separation. Plaintiff answered the reconventional demand denying the allegations of fault on his part and alleging fault on defendant’s part. He claimed that living with her was extremely difficult and burdensome and that she had abandoned him and publicly defamed him. He further pleaded in the alternative that LSA-R.C.C. Art. 160 was unconstitutional under the Louisiana and United States constitutions.

The district court rendered a judgment of divorce and awarded alimony to defendant, plaintiff in reconvention, in the sum of $137.00 to be paid every two weeks. Plaintiff has appealed from this portion of the judgment.

This court has recently upheld the constitutional validity of LSA-R.C.C. Art. 160 in Whitt v. Vauthier, 316 So.2d 202 (La.App. 4 Cir. 1975). Accordingly, this opinion will be directed solely to the issue of whether the district court’s finding that defendant is entitled to alimony under LSA-R.C.C. Art. 160 is correct.

The right of a wife to obtain alimony after divorce is governed by LSA-R.C.C. Art. 160, which provides in pertinent part:

“When the wife has not been at fault, and. she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
******
“2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; * * *”

In an action for permanent alimony (LSA-R.C.C. 160, subd. 2), the wife bears the burden of proving that she has not been at fault. Adler v. Adler, 239 So.2d 494 (La.App. 4 Cir. 1970). It has been stated repeatedly that:

“* * * ‘fault,’ as employed in LSA-C.C. Art. 160, does not mean merely the wife’s engaging in quarrels more or less of a trivial nature, but contemplates conduct or substantial acts of commission or omission on the part of the wife, viola-tive of her marital duties and responsibilities, which constitute a contributing or a proximate cause of the separation and continuous living apart. * * *” Chapman v. Chapman, 130 So.2d 811, 814 (La.App. 3 Cir. 1961).

In the instant case, defendant admitted that she left the matrimonial domicile on August 24, 1971 after an alleged fight with plaintiff. A wife who has left the matrimonial domicile cannot be said to be free from fault unless she can show that her husband’s treatment provoked her into terminating the marital relationship. Whitt v. Vauthier, 295 So.2d 235 (La.App. 4 Cir. 1974); Vinot v. Vinot, 239 La. 587, 119 So.2d 474 (1960).

Defendant testified she left the matrimonial domicile after being beaten by her husband at around 4:00 A.M. on the morning of August 24, 1971. She thereafter notified the police of the incident and had her husband arrested, but never appeared at the scheduled trial. She also stated that her husband often called her derogatory names and had beaten her on numerous previous occasions, on one of which he struck her with a lamp.

Plaintiff denied these allegations. He stated that he did not strike his wife on August 24, 1971, or on any other date. This is partially substantiated by defendant’s cross-examination testimony during which she read as follows from her entries in a memoranda book she maintained:

“Hit head on lamp. Tell hit head again end jolt and hurt shoulder and neck and shoulder, back stiff and bruses on arm, leg and scratches on arm, leg two places and scratches on arm — Oh, well, that as a result of him hitting my head with that lamp.”

He also explained her actions in calling the police as being in retaliation to his prior statement that if she did not turn over some money to him in order to allow him to buy a used car he was going to call the district attorney. He further stated that his wife kept the house and her person in constant disarray and that she never had meals prepared for him on time.

Three other witnesses testified at the trial. The two adult sons of plaintiff and defendant testified that in their opinion the defendant was an adequate housekeeper although they noted that the plaintiff often complained; that their parents did not get along well; and when they saw their mother after the August 24 incident she was very bruised and quite shaken. When the older son confronted his father with his mother’s condition he testified his father stated, “ * * * he just couldn’t get along with her. * * * I [father] only knew how bad it was * * *.” The remaining witness, a longtime friend and co-worker of plaintiff, testified that during the 30 years in which he visited the Brous-sard’s that the house was never in anything but a mess.

It is clear that the testimony of plaintiff and defendant is in hopeless conflict. The trial judge observed all the witnesses. He apparently resolved the conflicting testimony in favor of the defendant and concluded that she was free from fault and entitled to alimony under LSA-R.C.C. Art. 160. After a careful review of the record we cannot say that this conclusion is manifestly erroneous. Accordingly, the judgment of the district court is affirmed.

Affirmed.


text:
    ELECTRONIC CREDIT CORPORATION, Plaintiff-Appellant, v. John H. FAIRBANKS, Defendant-Appellee.
    No. 5056.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      William L. Koerber, Vidalia, for defendant-appellee.
    Burnett, Harrison, Sutton & Walker by James A. Burnett, Shreveport, for plaintiff-appellant.
    Before HOOD, CULPEPPER and WATSON, JJ.
   HOOD, Judge.

This action was instituted by Electronic Credit Corporation to recover the balance due on nine promissory notes executed by Vidalia Tire Company, a partnership composed of Dr. John H. Fairbanks, and I. J. Thornhill, Jr. The notes were made payable to the order of plaintiff and were secured by chattel mortgages. Defendants are Fairbanks, Thornhill and Vidalia Tire Company. The case was dismissed as to Thornhill, and it went to trial solely on plaintiff’s demands against defendant Fairbanks. The trial court rendered judgment in favor of that defendant, and plaintiff appealed.

The issue presented is whether Fairbanks has been relieved of liability to plaintiff by his subsequent discharge in bankruptcy.

In August, 1965, Fairbanks and Thorn-hill formed a partnership for the purpose of operating a retail tire and appliance store, known as “Vidalia Tire Company,” in Concordia Parish. The partnership operated such a store under the management of Thornhill, from the time the partnership was formed until it was dissolved on August 19, 1968. Fairbanks was engaged in practice as a dentist, and he did not take an active part in managing the Tire Company prior to the above date, his participation in the business before that time being limited to providing financial backing for it. He did not familiarize himself with the operating procedures of the business and he did not monitor its financial affairs while the partnership existed.

Although Fairbanks did not actively participate in managing the business, he did sign a document on August 30, 1965, which authorized Electronic Credit Corporation, or its agents, to execute promissory notes and chattel mortgages for Vidalia Tire Company, evidencing the latter’s indebtedness to Electronic for merchandise to be purchased by it and financed by plaintiff. The parties had agreed that Electronic would finance purchases which Vidalia expected to make from Tri-State Distributing Company, a wholesale distributor, and the purpose of the above power of attorney was to enable Electronic to finance and pay for merchandise bought by the partnership without the necessity of having Fairbanks or Thornhill sign a note and chattel mortgage every time a purchase was made. After the execution of that power of attorney, one of plaintiff’s employees executed a note and chattel mortgage as agent for Vidalia, payable to Electronic, each time the purchase of merchandise was financed by plaintiff. In every such instance the items of merchandise purchased were identified by model and serial number in the chattel mortgage.

The parties understood that under this “floor plan” financing arrangement, the Tire Company could sell the mortgaged merchandise, provided that following each such sale the part of the proceeds which equalled the cost of the item sold would be paid to Electronic and applied to the mortgage indebtedness. Plaintiff adopted the procedure from the beginning of checking the merchandise in the store once a month to determine the items which had been sold that month, and then advising Vidalia as to the amount which the latter owed on the mortgage indebtedness.

The Tire Store made irregular payments on its indebtedness to plaintiff under the above procedure, and plaintiff has not financed the purchase of any merchandise by defendants since February, 1968.

Defendant Fairbanks became aware of the mounting indebtedness of the Tire Company about June or July, 1968. The partnership was dissolved in August, 1968, and Fairbanks then took over the operation of the business in an attempt to extricate it from its financial difficulties. He assumed all of the partnership obligations, and he attempted to raise money to pay them by mortgaging his personal property and by engaging a full time employee to collect the unpaid accounts due the Tire Company. He was unable to salvage the business, however, and he closed it in April, 1969. The company owed plaintiff a balance of $9,089.92 at the time the store was closed.

The Tire Company had from $5,000.00 to $8,000.00 in cash at the time the business was closed. Fairbanks, upon advice of his attorney, used those funds to pay wages and taxes, since they were priority creditors under the Bankruptcy Act. Fairbanks then filed a petition in bankruptcy on April 21, 1969, and he was granted a discharge in bankruptcy on August 1, 1969. He listed his indebtedness to plaintiff Electronic in his bankruptcy schedules, and the discharge which was granted to him purported to release him from liability for that debt.

By this proceeding Electronic seeks to recover judgment against Fairbanks for the balance of $9,089.92 alleged to be due it. That indebtedness is represented by nine promissory notes all executed by Vi-dalia Tire Company, through the agent it appointed as above set out, and made payable to the order of plaintiff. Fairbanks has specially pleaded his discharge in bankruptcy as a defense to plaintiff’s demand. The trial judge concluded that Fairbanks’ discharge in bankruptcy released him from the obligation which forms the basis for this suit, and judgment accordingly was rendered dismissing plaintiff’s suit.

Plaintiff contends that the failure of defendants to apply the proceeds of the sale of the mortgaged items to the indebtedness sued upon her constituted “willful and malicious injuries” to the person or property of Electronic, and that Fairbanks’ discharge in bankruptcy thus did not release him from that obligation.

Plaintiff relies on 11 U.S.C.A. § 35(a)(2), which at the time of defendant’s discharge in 1969 read, in part, as follows:

“(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as .
(2) are liabilities . . . for willful and malicious injuries to the person or property of another.”

The above statute was amended in 1970 to provide, in effect, that a discharge in bankruptcy would not release the bankrupt from liability “for willful and malicious conversion of the property of another.” Prior to the 1970 amendment, however, the term “willful and malicious injury” was interpreted as including “willful and malicious conversion.” Davis v. Aetna Acceptance Company, 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934). The rules applied by courts before and after the 1970 amendment in determining “willful and malicious conversion” of property, therefore, are applicable here.

It is not necessary to prove special or personal malice to come within the exception of the statute. See Appliance Buyers Credit Corporation v. Zdeb, 3 Ill.App.3d 1055, 280 N.E.2d 7 (1972); Anderson v. McPhate, 192 So.2d 677 (La.App. 3 Cir. 1966). A willful disregard of that which one knows to be his duty, or the commission of an act which is inherently wrong, if done intentionally, is done “willfully and maliciously” as contemplated by the Bankruptcy Act. See Anderson v. McPhate, supra; Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904).

Not every act of conversion of secured property is willful and malicious for purposes of the act. Each case must be determined with reference to the circumstances. A conversion which is merely technical or innocent and not accompanied by willfulness or malice does not prevent the discharge of the debt in bankruptcy. Prudential Finance Plan of N.O., Inc. v. Necaise, 192 So.2d 868 (La.App. 4 Cir. 1966). See also Davis v. Aetna Acceptance Co., supra. In order for a conversion of another’s property to be willful and malicious, the act of conversion must be accomplished without the other’s knowledge or consent, intentionally, without justification and excuse and to the injury of the other party. See In Re Elliott, D.C., 385 F.Supp. 1194 (1974).

In Davis v. Aetna Acceptance Company, supra, a retail dealer obtained loans from a finance company to purchase automobiles for resale, and each loan was evidenced by a promissory note secured by a chattel mortgage on the vehicles purchased. In one instance the dealer executed a chattel mortgage in favor of the finance company affecting an automobile, and the parties agreed that the dealer would not sell the car without first obtaining the lender’s written consent. The car nevertheless was sold without the consent of the lender. The sale was not concealed, but on the contrary the dealer notified the mortgagor of it and of his intent to pay the debt. He did not pay the debt, however, and shortly thereafter he instituted bankruptcy proceedings and was granted a discharge. The finance company sued to recover the amount of the loan, and the defendant dealer pleaded his discharge in bankruptcy as a defense. An appellate court of Illinois rendered judgment for the plaintiff, but that judgment was reversed on review by the U. S. Supreme Court.

The U. S. Supreme Court conceded in Davis that conversion, if “willful and malicious,” is an injury to the person or property of another, within the meaning of the above exception to the discharge rule, but it held that in the case there was no showing of willfulness or malice on the part of the bankrupt and that accordingly the debt was discharged. The court said:

. . . There may be an honest but mistaken belief, engendered by a course of dealing, that powers have been enlarged or incapacities removed. In these and like cases, what is done is a tort, but not a willful and malicious one
“ . . . The discharge will prevail as against a showing of conversion without aggravated features.”

In Prudential Finance Plan of N.O., Inc. v. Necaise, supra, the defendant discarded and disposed of items of furniture which had been mortgaged to secure an indebtedness to the plaintiff. The defendant’s explanation was that the furniture was old and worthless. The Court of Appeal, Fourth Circuit, held that the discharge in bankruptcy subsequently granted to the defendant released her from liability for the debt, since the discarding or disposal of the furniture did not constitute the “willful injury to the property of and malicious’ another.

The debtor in the case of In Re Elliott, supra, sold three parcels of immovable property prior to his discharge in bankruptcy, knowing that the property had been mortgaged to a bank but that the mortgage had not been recorded. The court held that the creditor failed to show that the bankrupt committed a “willful and malicious conversion of the property of another,” and that the latter’s discharge in bankruptcy thus relieved him from liability. Judgment accordingly was rendered dismissing the creditor’s claim against the bankrupt.

Plaintiff points out that contrary results were reached in Excel Finance Camp v. Tannerhill, 140 So.2d 202 (La.App. 4 Cir. 1962), and Appliance Buyer Credit Corp. v. Zdeb, supra. We distinguish both of those cases.

In Excel Finance, supra, the debtor executed a note in novation of two past due notes owed to Excel. The creditor accepted a chattel mortgage on household effects and furniture in lieu of the personal endorsements which secured the original notes. The debtor thereafter sold the mortgaged household effects and furniture, appropriated the proceeds of the sale to his own use, and then obtained a discharge in bankruptcy. The Fourth Circuit Court of Appeal held that the unauthorized sale of the mortgaged property constituted a “willful and malicious injury to property,” and that the debtor was not released from liability by his discharge in bankruptcy.

In Appliance Buyer Credit Corp., supra, inspectors for the lender found 75 to 100 containers of mortgaged television sets stacked in rows with their serial numbers facing the front. A closer inspection revealed that 24 of the containers were empty, and that they had been carefully resealed to give the appearance that the sets were still in them. The court found nothing to indicate that the defendant acted in an honest belief that he was free to dispose of the secured merchandise, and that the actful concealment practiced by him was a clear indication that he knew otherwise. It held that, the debtor’s action constituted “willful and malicious” injury to the property of the plaintiff, within the meaning of Section 17 of the Bankruptcy Act, and that the debtor’s discharge in bankruptcy did not release him from liability.

The facts in each of the cited cases show that the disposal of the mortgaged property was concealed from the creditor, that the proceeds of the sale were appropriated by the debtor for his own use, that the debtor willfully disposed of the mortgaged property under aggravated circumstances, and that the creditor had never given the debtor any reason to assume that he could dispose of it.

In the instant suit the evidence does not show that sales of merchandise by the Tire Company were ever concealed from plaintiff. Prior to the time Fairbanks began managing the business plaintiff inspected the stock on hand once a month, and it determined from its own inspections how much was owed to it from time to time by the Tire Company. No one knew whether there were any items of mortgaged property in stock when Fairbanks assumed the managment, and no such items were added after that time because plaintiff quit financing the business before Fairbanks took over. There is no showing, therefore, that Fairbanks ever sold an item of merchandise which had been financed by plaintiff.

Fairbanks contacted plaintiff in July, 1968, soon after he discovered that the Tire Company was in financial trouble and before he began managing it, and he discussed the matter with plaintiff at other times after he took over the management. Dr. Fairbanks freely acknowledged his indebtedness to plaintiff, he informed plaintiff of his desire to pay the debt, and our understanding of the evidence is that he kept plaintiff informed of his efforts to borrow money to salvage the business.

The evidence establishes that the amounts received from the sale of merchandise after Fairbanks became the manager were put into the general fund of the store and were used to pay operating expenses and bills of the Tire Company. Fairbanks did not appropriate any part of those funds to his own use, but he, on the contrary, sustained a substantial personal loss as the result of his efforts to pay the Tire Company debts.

The evidence shows that plaintiff has never required the Tire Company to make payments on the indebtedness as sales of merchandise were made, or to keep the amounts secured from those sales in a separate account. We have already pointed out that from the start plaintiff required the company merely to make payments monthly after the stock on the floor had been checked.

A statement of the account of Vidalia Tire Company with plaintiff reveals that the Tire Company was consistently behind in its payments to plaintiff, and that Electronic nevertheless continued to finance more purchases while the account was in arrears. Plaintiff thus at least appeared to sanction the use of the funds received from the sale of mortgaged items for purposes other than for payment on the Tire Company’s indebtedness to it.

Plaintiff has cited B-W Acceptance Corporation v. John H. Fairbanks, et al (Civil Action No. 14,688, W.D.La.1970), an unreported case decided by the United States District Court for the Western District of Louisiana, Monroe Division. In that case another finance company sued Dr. Fairbanks, and others, to recover the amount due on a mortgage debt arising out of the operation of Vidalia Tire Company. The court held that the action of Fairbanks there amounted to “willful and malicious injury,” and that his discharge in bankruptcy did not release him from the debt.

In B-W Acceptance Corporation, the plaintiff (B-WAC) financed the purchase of some merchandise after Dr. Fairbanks began managing the store. The procedure used by B-WAC for evidencing and securing the indebtedness and in obtaining payment were identical to those used by Electronic in the instant suit. The court found that in February, 1969, while Fairbanks was managing the store, he falsely represented to B-WAC that none of the mortgaged merchandise had been sold recently, whereas some of that merchandise had in fact been sold that month, and that $6,000.00 of the funds which were on hand when the store closed were proceeds of the sale of merchandise on which B-WAC held chattel mortgages. The court also found that some of the merchandise which was mortgaged to B-WAC was sold after a decision had been reached to close the store, and that Fairbanks had instructed his employees to refuse to pay any of those funds to the mortgagee.

The facts in the B-W Acceptance Corporation case differ materially from those in the instant suit, and for that reason we do not consider the cited case to be applicable here.

We are convinced that Fairbanks’ actions did not constitute “willful and malicious injury” to plaintiff’s property, as that term is used in 11 U.S.C.A. § 35(a)(2). We thus find no error in the conclusion reached by the trial court that the discharge in bankruptcy granted to defendant Fairbanks relieved him from liability for the indebtedness which Electronic seeks to recover here.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

Affirmed.


author: REDMANN, Judge.

text:
    Natale J. FERRARA v. Hilda A. Weber, wife of Natale J. FERRARA.
    No. 6967.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Lanny R. Zatzkis, Herman & Herman, New Orleans, for plaintiff-appellant.
    Robert B. Chopin, Metairie, for defendant-appellee.
    Before REDMANN, BOUTALL and MORLAL, JJ.
   REDMANN, Judge.

On a rule to eliminate permanent alimony previously fixed at $50 a month when the wife was unemployed, the trial court declined to reduce alimony although the wife is now employed at over $300 monthly. We reverse and eliminate alimony as not presently needed.

Changes in alimony can only be made on the basis of changes in circumstances since the last fixing, Bernhardt v. Bernhardt, La. 1973, 283 So.2d 226. We do not know why the wife’s alimony was previously fixed at only $50 when her husband’s income was substantial, but the correctness of that fixing is not before us.

The husband has shown a substantial change in his wife’s income — an increase of over $300. If $50 alimony, when added to her other personal income, reasonably provided her needs in June 1972, her $300 additional income in April 1974 makes that $50 award no longer necessary.

The judgment is reversed and alimony is reduced to zero at the husband’s cost.