author: JONES, Judge.

text:
    W. J. FLORES and Cecil Kelly, Plaintiffs-Appellees, v. COMMERCIAL UNION INSURANCE COMPANY et al., Defendants-Appellants.
    No. 12972.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.

      Theus, Grisham, Davis & Leigh by Charles H. Heck, Monroe, for defendants-appellants.
    McKeithen, Burns & Lewellyan by Don C. Burns, Columbia, for plaintiffs-appellees.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

This is a suit for damages for the death of two cows as a result of being struck by an automobile driven by James N. Lott. Defendants are James N. Lott, Linda Lott, and their liability insurer, Commercial Union Insurance Company. The accident occurred on a two-lane blacktop highway in open range country in Caldwell Parish.

The defense is there was no negligence on the part of Lott in striking the cows because he was suddenly confronted with the cattle after he crested a hill faced by headlights of approaching traffic. Defendants allege that plaintiffs were guilty of contributory negligence in permitting their cows to be on the highway, and they assumed the risk of their cattle being killed.

Lott filed a reconventional demand for damages sustained to his automobile.

The trial court rendered judgment in favor of each plaintiff for the value of their respective cows against all defendants in solido. Lott’s reconventional demand was rejected.

The issues on appeal are: (a) whether the cattle were killed due to Lott’s negligence; (b) whether the cattle owners were negligent barring their recovery; and (c) the applicability of Civil Code Art. 2321 as interpreted in Holland v. Buckley, 305 So.2d 113 (La.1974).

We affirm the decision of the trial court in all respects except we hold Linda Lott was improperly cast for damages.

At the time of the accident Lott was enroute from his home in Caldwell Parish to his place of employment in Ouachita Parish. He traveled this road to work for approximately four years prior to the accident. He frequently observed cattle roaming near the highway in the general area of the accident. He knew this was open range country and that there was a highway Stock at Large sign located about one mile south of the scene of the'accident.

The accident occurred after dark on a wet roadway in drizzling rain. Lott was traveling north at approximately 40 miles per hour, and as he reached a point where his path required him to descend a hill, he observed headlights of an approaching southbound vehicle about 225 feet to his north. Lott dimmed his lights and observed two cows in the reflection of the approaching lights on the downslope in his northbound lane. Lott applied his brakes, went into a skid and entered the southbound lane. He pulled back into the northbound lane and collided with the cows about the center of the northbound lane.

The trial court held the cows were 225 north of Lott at the time he first saw them. There is no evidence in the record to justify this finding. Lott estimated the cows were 75 feet to his north when he first saw them. We hold that Lott’s estimate is incorrect, and that the cows were some distance further than 75 feet to his north at the time he first observed them. This is true because Lott had sufficient time following this observation to slow his vehicle to such an extent that the impact did only $96 in damage to his vehicle, and he was able to stop his car before it left the roadway. Lott stopped his car with the front wheels an.gling generally northeasterly on the shoulder and the back wheels on the blacktop in his northbound lane. The cows were in front of his car about 4 or 5 feet in the ditch. The animals’ back legs may have been on the shoulder of the road. One had a broken leg and had to be killed; the other was led to a pasture near the scene where it died during the night. One of the cows was a red and white Hereford-Cross, and the other a brown and white Guernsey milch cow.

In stock law areas (where cattle are prohibited by statute or ordinance from running at large) a motorist is not charged with the duty of guarding against striking an unexpected obstruction in the form of cattle on the highway:

“ * * * The motorist is not charged with the duty of guarding against striking an unexpected or unusual obstruction which he has no reason to anticipate he would encounter on the highway. Carona v. Southern Farm Bureau Casualty Insurance Company, 164 So.2d 138 (La.App. 1 Cir. 1964). A night driver on a stock-law highway is not held to the duty of slowing each time he meets oncoming headlights to be prepared to make an emergency stop in the event an unlighted, dark colored animal is blocking his lane of traffic.” [Ross v. Del Valle, 277 So.2d 163 at page 166 (3d Cir. 1973.]

A motorist traveling at night in open range is required to anticipate his path of travel may be obstructed by cattle. He is required to operate his vehicle at such a speed that he can avoid hitting livestock he sees or should see. In Wortham v. Owens, 200 So.2d 781 (3d Cir. 1967) the court said:

“With regard to cattle in the roadway, the standard of care and of liability of a night motorist in open range country is that he is negligent and liable for the resulting damage if he runs into cattle standing or walking normally in the roadway; further, his failure to see the cattle sooner is not excused by their obscuring coloration nor because the motorist’s speed and control were reasonably prudent except for the unexpected circumstance of finding livestock in his path. ...” Id. p. 783.

The court recognized in footnote that the duty placed on the motorist to avoid striking cattle in open range is substantially different from the duty placed on motorists when suddenly faced by other obstructions on the highway:

“1. (By author of opinion).
This is to be contrasted with the legal rule applicable where the night motorist runs into an obscured truck criminally obstructing the highway, in which case the motorist may be free of a duty to anticipate and observe sooner this dangerous obstacle. Vowell v. Manufacturers Casualty Ins. Co., 229 La. 798, 86 So.2d 909; Sittig v. Southern Farm Bureau Cas. Ins. Co., La.App. 3 Cir., 198 So.2d 514.” Id. p. 783.

Lott knew he was traveling in open range. He was thoroughly aware of the very likely possibility of being confronted with cattle in his path on this rainy night, and he was under a duty to operate his vehicle at a speed that he could bring it under control in such an eventuality. He was familiar with the road and knew of the hill and downslope where the cattle were standing. He traversed this road twice a day several days each week. His vehicle was only slightly damaged and never left the roadway. Had he been traveling at a slightly slower rate of speed on this wet blacktop highway he would have maintained control of his vehicle and avoided the accident. He was negligent in colliding with the cattle.

Defendants assert a plea of contributory negligence as a bar to plaintiffs’ right to recover. In stock law areas the owners of cattle are held negligent if they are guilty of the slightest fault in permitting their cattle to roam the highway. In Womack v. Rhymes, 300 So.2d 226 (2d Cir. 1974) we said:

“ * * * Highway 15 is one of the highways listed in LSA-R.S. 3:2803 which provides that no person owning livestock shall knowingly, willfully or negligently permit his livestock to go at large upon certain highways.
“LSA-C.C. Art. 2321 provides in part: ‘The owner of an animal is answerable for the damage he has caused; . . ’.
“Under the jurisprudence applying the code article and statute, the owner of an animal is responsible for damage which it causes if there is any negligence, however slight, on his part. Where an animal has been the cause of damage, the burden rests upon the owner to exculpate himself of even the slightest degree of negligence. The burden placed upon the owner of an animal by these legal principles is not insubstantial but requires him to establish by proof of facts in a given case his complete freedom from any negligence of even the slightest degree to which might be attributed the action of the owned animal by which damage is caused to another.” Id. at p. 229.

The owner of cattle in open range may allow his animals to run at large; he is under no duty to keep his livestock enclosed. We quote from McGee v. Southern Farm Bureau Casualty Insurance Company, 125 So.2d 787 (3d Cir. 1960):

“Defendant specially pleads contributory negligence, contending that plaintiff was negligent in permitting his cow to roam upon a heavily traveled road. Appellee asks that this court adopt a rule that ‘whoever releases -an animal on the highway, in open range country, or releases the animal at a place where it is likely to go on an open range highway, * * * does so at his peril insofar as recovering for the value of an animal killed by an automobile on the said highway.’ Counsel for appellee concedes that such a rule would be contrary to the present established jurisprudence of this State. See Ware v. Laiche, La.App.1950, 45 So.2d 224, 226. Whether such a rule of law should be adopted is a matter which concerns the legislature, not the judiciary. “Under the jurisprudence of this State, plaintiff was not negligent in permitting his cow to roam on the public road where this accident occurred, and we conclude that there is no merit in defendant’s plea of contributory negligence. Plaintiff, therefore, is entitled to recover from defendant for the loss of his cow.” Id. p. 790.

The defense of contributory negligence asserted by defendants is without merit.

Defendants attempt to assert in pleading and brief that the accident was caused by the cattle suddenly darting onto the highway in front of Lott in such a manner as to have made it impossible for him to avoid the accident, and that defendant Lott is free of liability under the following rule set forth in McGee v. Southern Farm, supra, and cases cited therein:

“ * * * It is well settled, of course, that when an animal suddenly darts in front of an automobile traveling at a reasonable rate of speed on the highway, and the animal is struck before the driver can stop his car or swerve it so as to avoid the accident, the accident is said to be unavoidable, and there is no liability on the part of the driver or owner of the automobile. . . . ” Id. at p. 789.

The record does not support defendants’ position; it clearly reflects that when Lott observed the cattle they were in the center of his lane walking from right to left.

Defendants urge that the correct rule of law applicable here is to be found in the Supreme Court’s interpretation of Civil pode Art. 2321 in the decision of Holland v. Buckley, supra, which defendants contend constitutes a Codal state-wide stock law. The pertinent parts of the article are as follows:

“The owner of an animal is answerable for the damage he has caused; . . ..”

In Holland the court was confronted with a situation where an innocent bystander was bitten by plaintiff’s shepherd dog running loose on defendant’s lawn. Plaintiff Holland was walking his own dog in the area when the shepherd attacked it. Plaintiff attempted to intervene and hold the shepherd off of his dog with his foot when the shepherd bit him on the elbow. The shepherd’s owner was unaware it had any vicious propensities. It had never bitten anyone before. Under the jurisprudence of this state prior to the Holland decision, as a condition precedent to recovery, plaintiff was required to prove that the shepherd’s owner was negligent in permitting a dog with known vicious propensities to go unrestrained and bite plaintiff. The Supreme Court reversed the lower court and a long line of jurisprudence which heretofore interpreted Article 2321 as giving the dog a right to the first bite free. The court cited French authorities and stated the legislative intent required the following interpretation:

“We hold, therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence. Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.
* * * * * *
“The underlying reason for the owner’s liability is that, as between him who ere-ated the risk of harm and the innocent victim thereby injured, the risk-creator should bear the loss. He maintains the animal for his own use or pleasure.
* * * * * *
“ * * * In the crowded society of today, the burden of harms caused by an animal should be borne by his master who keeps him for his own pleasure or use rather than by an innocent victim injured by the animal.” Id. pp. 119, 120.

If the Supreme Court’s interpretation of Article 2321 is held applicable to cases involving collisions between motorists and cattle on the highway, the only way a cattle owner may escape liability, whether the accident occurs in open range or closed range country, will be to establish that same was caused by the fault of the victim or a third party or a fortuitous event.

In Harrington v. Upchurch, 331 So.2d 506 (La.App. 3d Cir. 1976), which involved a motorist colliding with a cow in open range, among other defenses asserted, the motorist urged the applicability of Holland. The court held Holland inapplicable for the reason that the applicable law to cases involving motorists and cattle collisions on the highway is contained not only in Article 2321 of the Code but also LSA-R.S. 3:2803 which provides:

“No person owning livestock shall knowingly, willfully or negligently permit his livestock to go at large on the following public highways of this state: . . ..”

The court proceeded to discuss various jurisprudential rules interpreting the stock law, all discussed herein, and held that while Holland was applicable to dogs, it was inapplicable to cattle causing damages on public highways, saying:

“Our legislature has enacted special statutes to control this situation. It is not within the province of this Court to repeal an express, clear and explicit statute of this state.” Id. p. 511.

It is significant that the legislature has amended LSA-R.S. 3:2803 on numerous occasions, adding thereto additional highways where roaming livestock is prohibited. There were amendments as late as 1975. The legislature is no doubt fully cognizant of the numerous judicial interpretations of its applicability and legal significance. If the legislature desires to apply the rule of strict liability as provided for in the Supreme Court’s interpretation of Civil Code Article 2321 in the Holland decision to accidents involving cattle on the highways of this state, then it could affirmatively do so and it has taken no action in this regard. We decline to exercise this legislative function.

We hold that the decision of Holland and its interpretation of Article 2321 is inapplicable to the instant case.

The record does not contain any evidence that Linda Lott has any legal responsibility for plaintiffs’ damages.

For the reasons assigned, we reverse the trial court’s decision holding Linda Lott liable in damages, and affirm it in all other respects.

Appellants are cast for costs herein.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Monty M. GLORIOSO, Plaintiff-Appellee, v. Mrs. Georgie H. CHANDLER, Defendant-Appellant.
    No. 12973.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.

      Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendant-appellant.
    Brocato & Mangham by C. P. Brocato, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

Glorioso and defendant, Mrs. Chandler, owned adjoining two-story brick buildings with a common or party wall between, which were constructed on Commerce Street in Shreveport more than 100 years ago. Both buildings faced Red River, with Mrs. Chandler’s building being the northernmost of the two, situated on the comer of Crockett and Commerce streets.

About November 1, 1971, the roof of Mrs. Chandler’s building collapsed, allegedly causing damage to the party wall between the buildings. A short time later a demolition company hired by Mrs. Chandler sought a permit from the City Building Inspector to demolish the Chandler building. After an examination, the Building Inspector condemned both buildings and sent to Glorioso an order, which after á delay was granted, required demolition to commence on January 2, 1972. The buildings were demolished shortly thereafter.

On February 21, 1972, Glorioso brought suit and was awarded damages after trial in 1975. Mrs. Chandler appeals. We affirm.

Mrs. Chandler’s building had not been occupied for about seven years. In 1964, Mrs. Chandler unsuccessfully sought the cooperation of the City Building Inspector to have both buildings condemned and ordered demolished. Glorioso’s building had been used for many years by a tenant engaged in the business of trading in pecans and tanning cowhides. About nine months before Mrs. Chandler’s roof collapsed, Glorioso re-roofed his building.

When Mrs. Chandler’s roof collapsed on the second floor of her building, the party wall was subjected to additional horizontal stress and a quantity of brick was punched out or knocked out of the wall by the roof structure, causing a hole or gap in the top of the wall approximately 5 X 12 feet. The failure of the wall caused the roof structure of Glorioso’s building to twist and' pull away from the remaining part of the wall, but did not cause Glorioso’s roof to collapse. An estimate by a builder and roofer to repair this specific damage included 20,000 brick, 2 X 12 and 4X4 beams and other material, which with labor and other costs totaled $9,984.

Glorioso did not make these repairs because the City made other requirements which would have greatly increased, to what was described as “prohibitive,” the cost of complying with building codes.

Mrs. Chandler contended below that the ruin of both buildings was caused by their ancient and dilapidated condition arising from the ravages of time, and not by any neglect on her part. Alternatively, Mrs. Chandler contended below (1) contributory negligence (neglect) by Glorioso; and (2) that Glorioso’s knowledge of the condition of both buildings and his failure to remedy the condition or to protect against damage served as a bar to any recovery.

The trial court found the collapse of Mrs. Chandler’s roof caused damage to the party wall and precipitated the condemnation and eventual demolishment of both buildings. Experts below gave conflicting opinion testimony as to causation, but the evidence taken as a whole leads us to conclude the trial court was correct in its findings in this respect.

Mrs. Chandler’s counsel, in deference to the discretion afforded trial courts in factual determinations does not argue the factual issue here. Instead, the appellate issues are framed by her counsel in these terms:

(1) Where a party wall is damaged by the fault or neglect of one co-owner and repairs are not made because the adjoining buildings are condemned by municipal authority and demolished, is the other co-owner entitled to recover damages from the neglectful co-owner?
(2) If damages are allowed the innocent co-owner, is recovery allowed for 100 percent of the party wall damage or only 50 percent?
(3) Is the innocent co-owner barred from recovery if he fails to exercise the privilege granted him under LSA-C.C. Art. 671 to make “necessary works” to prevent damage threatened to his building by the ruin or fall of the adjoining building, as in the case of Factors and Traders Insurance Company, et al. v. Werlein, 42 La.Ann. 1046, 8 So. 435 (La.1890)?

Civil Code Articles 670 and 2322 set forth the obligations of property owners to neighbors:

C.C. Art. 670 provides:
“Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers, under penalty of all losses and damages, which may result from the neglect of the owner in that respect.”
C.C. Art. 2322 provides:
“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

These two articles have been generally construed together to impose strict liability or liability without fault on property owners whose buildings fall to ruin and cause damage to other persons or property. See McConnell v. Lemley, 48 La.Ann. 1433, 20 So. 887 (1896) and Green v. Southern Furniture Company, 94 So.2d 508 (La.App., 1st Cir. 1957). The word “ruin” is construed as the collapsing, giving away or falling of a substantial component of the building. See Davis v. Royal-Globe Insurance Companies, 257 La. 523, 242 So.2d 839 (1970).

Civil Code Article 670 is in the section of the Code relating to servitudes. Civil Code Article 2322 is in the section of the Code relating to offenses and quasi-offenses. Each section imposes a similar legal obligation on the property owner to respond in damages for harm caused by “things” for which the owner is responsible.

“Under Louisiana law, founded on Articles 670 and 2322, the owner of a building is liable to a neighbor or passer-by injured through the fall of his building due either to a vice in its original construction or to his neglect to repair it. His fault is founded upon the breach of his obligation to maintain or repair his building so as to avoid creation of risk of undue injury to others.
“Neither ignorance of the condition of the building, nor circumstances that the defect could not easily be detected, absolve the owner from his liability for damages so caused . . .” Loescher v. Parr, 324 So.2d 441, 444 (La.1975). “Articles 2315 through 2324 of the Louisiana Civil Code comprise the code’s entire chapter of legal principle regulating offenses and quasi-offenses.
“The underlying principle is provided by Article 2315: ‘Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * * ’ The remaining articles constitute amplifications as to what constitutes ‘fault’ and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible.
“Article 2316 provides for delictual (tort) responsibility for negligent acts or omissions: ‘Every person is responsible for the damage he occasions not merely by his act, but his negligence, his imprudence, or his want of skill.’ However, negligence is not necessarily a basis for the obligation to respond in damages for harm caused by persons or things for which we are responsible as provided by the subsequent Articles 2317 through 2322.” Loescher v. Parr, 324 So.2d 441, 445 (La.1975) (Emphasis supplied).

In Loescher, supra, it was noted that the owner of a defective thing which injured another could avoid the strict liability where it is shown that the injury was caused (1) by the fault of some third person (2) by the fault of the person injured, or (3) by an irresistible cause or force not usually foreseeable.

“. . . He is absolved from such liability only if the thing owned by him falls, not because of its defect, but rather because of the fault of some third person or of the person injured thereby, or because the fault is caused by an irresistible cause or force not usually foreseeable, Article 3556(14), (15) (usually, an act occasioned exclusively by violence of nature without the interference of or contribution by any human agency).” 324 So.2d 445.

As we appreciate the circumstances in Factors and Traders Insurance Co. et al. v. Werlein, cited supra, on which Mrs. Chandler relies, it was such an irresistible force [“. . . an act occasioned exclusively by violence of nature without the interference of or contribution by any human agency] that caused most of the damage for which recovery was denied. There, the old National Theater at Baronne and Perdido in New Orleans burned shortly before midnight on . July 1,1887. The rear wall of the ruin remained standing some 90 feet in elevation. The lower 45 feet of the wall was a common or party wall between a building to the rear of the old theater belonging to Czarnowski (Factors and Traders insured). When the theater burned, the crest or gable of its rear wall fell on Czar-nowski’s building causing about $900 damage to the Czarnowski building.

Czarnowski called upon his insurance company to pay the loss under its policy. Czarnowski was aware of the threatening and dangerous condition of the high wall. He suggested the insurance company take steps to avoid further damage or if the insurance company considered it his risk, that he would take steps to brace the wall to prevent further injury. The insurer declined to do anything at that point and suggested to Czarnowski that he obtain the theater owner’s (Werlein’s) consent to brace the wall. Czarnowski asked the insurer to pay $50 on a $100 estimated cost of bracing the wall. The insurer declined.

On the second day after the fire, Werlein began negotiating with demolition companies to tear down the wall. Eventually, on July 6, 1887, a contractor was obtained for this purpose, to commence demolition the next morning (July 7). The contractor sought Czarnowski’s consent to enter his building to prepare for the razing of the theater wall. Czarnowski referred the contractor to his insurance company who had agreed that day with another contractor to repair the damage to the Czarnowski building. The demolition contractor obtained the consent of the repair contractor to enter the Czarnowski building and immediately commenced work. Within a matter of hours, a wind storm of “moderate velocity” blew the wall down, causing an additional $3,300 damage to the Czarnowski building.

Czarnowski sued his insurance company for the entire damage. The insurer compromised and settled with Czarnowski for some $4,400, with $3,300 being attributed to the July 7, 1887, wind-storm damage. The insurer was assigned Czarnowski’s claims against Werlein and brought suit against Werlein for its loss, alleging Werlein was liable on the theory of quasi-offense. The Supreme Court then reasoned in this fashion:

“But there are other principles to be taken into consideration in determining an owner’s liability; for the Code provides that ‘the damage caused is not always estimated at the exact value of the thing destroyed or injured. It may be reduced according to circumstances, if the owner of the thing has exposed it imprudently.’ (Our italics.) Rev.Civil Code, art. 2323. Hence we must consider whether, under the circumstances detailed in this case, Werlein is responsible to Czarnowski for the damage he sustained by the demolition of his building, through the neglect of the former to strengthen and repair the toppling and dangerous walls of his own; and, while thus considering, we must determine whether Czarnowski imprudently ' exposed his building to the danger; and we must further determine, if it was so exposed, whether the damage actually sustained must, on that account, be reduced or altogether disallowed. This directs our attention to another precept of the Code which is applicable. It is as follows, viz.: ‘Every one is bound to keep his buildings in repair, so that neither their fall, nor any part of the material composing them, may injure the neighbors or passengers, under the penalty of all losses and damages which may result from the neglect of the owner in that respect.’ Rev.Civil Code, art. 670. ‘When a building threatens ruin, the neighbor has a right of action against the owner to compel him to cause such a building to be demolished or propped up. In the mean time, if there be danger of any damage by its fall, he may be authorized to make the necessary works, for which he shall be reimbursed, after the danger shall be ascertained by experts.’ (Our italics.) Rev.Civil Code, art. 671. In view of these requirements of law and being aware of the dangerous condition of the walls of the burnt building, Czar-nowski had a right of action against Wer-lein to compel him to prop it so as to prevent it from falling; and, in the mean time, he might have been authorized to take the necessary means of protecting his own property. This he wholly failed to do, and for that reason was plainly guilty of neglect . . . ” 8 So. 437.

In denying recovery to Czarnowski’s insurer, the court concluded:

“. . .In this case the fault of Wer-lein and Czarnowski was mutual, and the negligence of each was a proximate cause of the injury. We are satisfied that the plaintiffs are not entitled to recovery.” 8 So. 438.

In the instant case, Glorioso’s roofer, when he reroofed Glorioso’s building in February, 1971, told Glorioso about the “sagging” roof of Mrs. Chandler’s building. Glorioso thereafter attempted to contact other persons named Chandler whom he believed were members of the family which owned the building. He was unsuccessful in these attempts and after several weeks ceased his efforts. Mrs. Chandler relies on these admissions by Glorioso and contends that Glorioso is barred from recovery here by the holding in Factors and Traders Insurance Company, supra, and particularly C.C. Art. 671, quoted therein.

In Factors and Traders, supra, Czarnowski was held to have been at fault (the second avoidance of liability under Loescher, discussed supra) because the danger was imminent and he did not employ “reasonable exertion to lessen the danger . . . ” We also believe that another factor, although not expressed, which influenced the court in Factors and Traders in reaching the result, was that the wind storm blew the high wall onto Czarnowski’s building (the third avoidance of liability under Loescher, supra).

In our opinion, C.C. Art. 671 merely places the defective building into the category of the servient estate of a servitude, obligated to the neighboring dominant estate. See Title IV, Book II, La.C.C. Arts. 646 et seq. The defective building owner who fails in his obligation to keep his building in repair (Art. 670), then becomes obligated to “permit” (Art. 655) the neighbor who is threatened with danger from the defective building to make the necessary “works” (“proppings” is the correct translation) under Art. 671. Insofar as propping is concerned, the codal scheme is permissive as to the servient (defective) building as well as to the dominant (neighboring) building.

“. . . the neighbor has a right of action against the owner to compel him to cause such a building to be demolished or propped up. In the meantime, if there be danger ... . [the neighbor] may be authorized to make the necessary [proppings] . . .” C.C. Art. 671.

Under the authority of Loescher and the obvious design of the Civil Code, we do not interpret Art. 671, as Mrs. Chandler contends we should, to mean that the neighbor threatened with danger, in all cases must take steps to protect himself (as a requirement of law, to use language from the Factors and Traders case) or otherwise be barred from recovery. Where the danger is imminent and the “propping” may be done with little or no expense (as in the Factors and Traders case, it may be that contributory neglect (negligence) of the neighbor may bar his recovery or mitigate damages (C.C. Art. 2323), but it is not as a matter of law, the neighbor’s mere failure to exercise a permissive right which will bar his recovery under C.C. Art. 671, in all cases.

The owner of a building is liable to a neighbor injured by the fall of the building caused by the owner’s neglect to repair the building. The neighbor’s damage may be mitigated in part, or in whole, when the fall of the defective building is imminent to a reasonable mind and there are reasonable and relatively inexpensive means by which the neighbor might, with some reasonable anticipation of certainty, undertake to avoid the damage, but fails or neglects to do so.

Here, Mrs. Chandler’s roof remained in a sagging condition at least ten months before it collapsed. How long it was sagging before it was noticed is not shown. The entire roof structure of Mrs. Chandler’s building had rotted to such an extent that more than a simple propping would have been necessary to prevent its ultimate collapse. We deduce that this, however, could have been determined only from an inspection made within the building and not from the outside of the building. Its collapse was not imminent and the cost of avoiding the collapse was not relatively inconsequential. We do not find that Glorioso imprudently exposed his building so as to mitigate damages or that Glorioso can be held to have been contributorily negligent so as to bar recovery under the circumstances presented. We believe the codal authorities and the principles set forth in Loescher, supra, control and that Factors and Traders is factually inapposite.

QUANTUM

The lower court awarded $12,500 in damages to Glorioso. Glorioso had reroofed his building at a cost of $2,430 about nine months before the roof of Mrs. Chandler’s building collapsed. There were several vats constructed in the lower floor of Glorioso’s building which were particularly suited to the use of Glorioso’s tenant who treated cowhides. The tenant had been in the building for more than ten years and regularly paid $235 gross monthly rental to Glo-rioso. Once the demolition commenced and Mrs. Chandler’s building was razed, the exterior walls of the Glorioso building remained standing without extraneous support, interiorly or exteriorly, before they were knocked down. We infer that Glorio-so’s building was in a relatively sound structural condition, considering its age and type of structure. Glorioso paid $2,500 to have his building demolished, with the salvaged materials going to the demolition company. We conclude that Glorioso sustained pecuniary loss (his net rentals for an undetermined time) and expense (the cost of demolition under the city condemnation order).

In this case, we are not determining the cost of repairing or restoring the party wall. The party wall was not repaired. Under these circumstances, C.C. Arts. 678, 679, and other articles of the Civil Code pertaining to walls in common, have no application and we need not determine as to what extent if any, one common owner may be required to contribute to expense of repairing a common wall.

The assessment of damage in cases of injury to property is not susceptible to yardstick measurement in every case. In East v. Pan American Petroleum Corp., 168 So.2d 426, 430 (La.App., 3rd Cir. 1964) it was appropriately observed:

“ ‘One whose real property is injured by another’s wrongful and negligent act is entitled to such damages as will compensate him for the injury or loss sustained. No hard and fast rule can be laid down, however, for the measurement of those damages; whatever rule is best suited to determine the amount of the loss in the particular case should be adopted.’
“Also, in the assessment of damages in cases involving offenses and quasi offenses much discretion must be left to the trial judge or jury.” 168 So.2d 430. (Citations omitted).

Three approaches have been mentioned in some cases: (1) the cost of restoration (2) the cost of replacement and (3) the difference in value of the thing before and after the damage. See Granger v. Bouillion, 220 So.2d 764, 766 (La.App., 1st Cir. 1969), where a camp house was damaged but was not repaired or replaced in same manner as it was originally constructed. The third approach (difference in value) was the approach used there.

In fixing the award below, the trial court commented:

“. . . [I]n view of the fact that the building was rented . and in view of the age and general condition of the building and that the roof had been repaired . . . , we think a fair award to [Glorioso would] be $12,500.00.”

The trial court noted that the estimate of repairing Glorioso’s building, excluding the requirements of the City Building Code, was $9,984. These repairs were not undertaken because of the additional building code requirements.

The trial court also noted the cost of demolishing the building of $2,500 in the written reasons for judgment below. The trial court considered Glorioso’s pecuniary loss; the fact that the building was utilized and was in a fair state of repair [or inferentially, that it had some value] before Mrs Chandler’s roof collapsed, as compared to the situation afterward. We do not find any abuse of discretion in the manner of assessment or the amount of damages by the trial court.

At appellant’s cost, judgment is

AFFIRMED.

      . The buildings are shown in an 1873 photograph made by the U.S. Army Corps of Engineers. One witness was of the opinion the buildings were constructed by 1867.


author: HALL, Judge.

text:
    Ronald EDWARDS, Plaintiff-Appellee, v. PORT AMC/JEEP, INC., Defendant-Appellant.
    No. 12974.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing denied Sept. 27, 1976.
    Writ Refused Dec. 3, 1976.

      Gamm, Greenburg & Kaplan by Jack H. Kaplan, Shreveport, for defendant-appellant.
    James L. Fortson, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Plaintiff, a young airman, brought this redhibitory action against the defendant automobile dealership for rescission of the sale of a used car and for return of the purchase price, finance charges, damages, and attorney’s fees. Defendant answered denying the existence of any defects and pleading a waiver of warranty by plaintiff. After trial, pursuant to well reasoned written reasons for judgment, the district court ordered the rescission of the sale, ordered return of the purchase price plus finance charges in the total amount of $2,984, and awarded attorney’s fees of $500. Plaintiff’s demands for damages were rejected as not proven. Defendant appealed. Plaintiff neither appealed nor answered the appeal. We affirm the judgment of the district court.

Defendant contends the judgment of the district court is erroneous for several reasons. Defendant claims: (1) plaintiff failed to prove a redhibitory vice or that it existed at the time of sale; (2) the warranty against redhibitory vices was expressly waived by plaintiff; (3) plaintiff did not tender the car for repair by defendant; and (4) the parties cannot be returned to status quo because plaintiff abused the car after its purchase and had repair work done by third parties.

THE FACTS

On June 13, 1974, plaintiff, accompanied by a friend, went to the defendant automobile dealership seeking a used car and was shown a 1972 Gremlin by one of defendant’s salesmen. Plaintiff, the friend, and the salesman took a test drive in the automobile. Plaintiff and his friend heard a grinding noise which seemed to come from the transmission and asked the salesman about the noise. The salesman told plaintiff this was a normal noise found in all 1972 Gremlins.

When plaintiff mentioned he wanted to take the car to a mechanic to have it checked out, the salesman told him he did not need to worry about that as it had been checked out by the shop mechanic at the dealership. The car had in fact been worked on in defendant’s shop a few days earlier after it was taken in trade. The salesman assured plaintiff the vehicle was in sound condition but agreed to have it rechecked in defendant’s shop. Later on in the day, the salesman advised plaintiff that the car had been rechecked and it was in good condition.

Plaintiff consummated the purchase of the Gremlin with defendant’s used car sales manager. The car was priced at $1,995, but the deal consummated between the parties called for plaintiff to waive the dealer’s usual thirty-day 50/50 warranty in exchange for a $200 reduction in the sales price. Plaintiff was concerned about the waiver of warranty and asked the used car manager about the effect of the waiver prior to signing it. The manager explained it was merely a waiver of the special used car warranty which generally provided that the seller would pay fifty percent of any needed repairs for thirty days. Plaintiff was assured by the manager that in the event any major defects should develop in the vehicle defendant would take care of them.

The bill of sale contained the following provision, written and signed by plaintiff:

“I, the undersigned, understand no warranty is given because car reduced from $1,995 to $1,795. Signed/Ronald Edwards.”

Plaintiff paid $500 cash and signed a note for $2,484. The note was subsequently negotiated by defendant to a finance company.

After the purchase, when plaintiff drove the car he continued to hear the noise which grew worse. Within a very few days, the first gear ceased to function and shortly thereafter the transmission ceased to function entirely. Plaintiff took the vehicle back to defendant’s place of business in an effort to have the vehicle repaired but was referred to the finance company which had purchased his note. The finance company sent him back to defendant. Plaintiff talked to defendant’s president who told plaintiff, in effect, that there was no warranty on the car and, after a heated exchange, ordered plaintiff to leave the premises.

Thereafter, plaintiff attempted to have the automobile repaired by some friends with mechanical experience. Two transmissions were purchased and installed but both malfunctioned. Some other repairs were attempted. The car became inoperable and remained in that condition to the time of trial. Formal demand for rescission of the sale was made, and the car was tendered back to defendant. The demand and tender were rejected, and this suit was filed.

PROOF OF DEFECTS

The evidence establishes that the automobile contained a serious defect in its transmission and that the defect existed at the time of the sale. The trial court found as a fact that the defect manifested itself within three days after the date of sale. LSA-C.C. Art. 2530 provides that if the vice has made its appearance within three days immediately following the sale it is presumed to have existed before the sale. Regardless of the presumption, the continuous chain of events occurring over a period of a few days, beginning with the noise in the transmission which was noticed on the day of sale, followed by the car “jumping out” of first gear and then by the first gear not working at all, and culminating with none of the gears functioning properly amply proves the defect and that it existed at the time of the sale.

The evidence further establishes that the nature of the defect was such that it rendered the automobile useless for the purpose for which it was purchased,' or that its use was so inconvenient and imperfect that it must be supposed that the buyer would not have purchased the automobile had he known of the vice. LSA-C.C. Art. 2520.

WAIVER OF WARRANTY

Defendant contends plaintiff expressly waived any and all warranties, including the warranty against hidden defects or red-hibitory vices.

LSA-C.C. Art. 2476 specifically imposes on the seller of a thing the obligation of warranting the thing he sells against hidden defects or redhibitory vices. Under the provisions of LSA-C.C. Art. 1764(2), the warranty implied in every sale may be modified or renounced. Such a renunciation or waiver, in order to be effective, must be written in clear and unambiguous terms, must be contained in the act of sale, and must either be brought to the attention of the buyer or explained to him. Hendricks v. Horseless Carriage, Inc., 332 So.2d 892 (La.App., 2d Cir. 1976).

The language relating to warranty written into the bill of sale in this case did not amount to a waiver of the warranty against hidden defects and redhibitory vices for several reasons. First, the language does not meet the clear and unambiguous test. In Hendricks, this court held that terms such as “no warranties of any kind or character” and “sold as is” do not satisfy the requirement that the terms of the waiver shall be clear and unambiguous with respect to the waiver of the warranty of fitness. The language of the purported waiver considered in the Hendricks case is very similar to the language involved here.

Second, although the waiver was called to the attention of the plaintiff buyer and explained to him, the explanation was that the waiver was only of the special thirty-day 50/50 warranty usually given by the defendant in connection with the sale of used cars. The explanation given plaintiff by defendant’s manager actually negated a waiver of the warranty against redhibitory vices in that plaintiff was told major defects which developed would be repaired by the seller.

Third, even if the language were construed to be a waiver of the warranty of fitness, the waiver or renunciation would not be binding on the buyer under the provisions of LSA-C.C. Art. 2548 which provides:

“The renunciation of warranty, made by the buyer, is not obligatory, where there has been fraud on the part of the seller.”

The trial court found that under the evidence the defendant knew or should have known of the defects. The car was in defendant’s shop on at least two occasions. On the second occasion it was put into the shop by the salesman for the specific purpose of investigating the cause of the grinding noise in the transmission. Defendant’s salesman represented to plaintiff that the automobile had been rechecked and was in sound condition, when in fact it was not. Under these circumstances, plaintiff would not be bound by a waiver or renunciation of the warranty of fitness.

OPPORTUNITY TO REPAIR

Defendant contends plaintiff is barred from bringing this redhibitory action or at least is limited to recovery of the cost of repairs because plaintiff did not give defendant an opportunity to repair the vehicle, citing LSA-C.C. Art. 2531 as amended by Act 673 of 1974.

Pretermitting discussion of issues which might be raised by this contention, such as whether the 1974 amendment is applicable in this case involving a sale made prior to the effective date of the amendment and whether the amendment applies to vices of the nature involved in this case, the short and direct answer to defendant’s contention is that the evidence plainly discloses that plaintiff did afford defendant an opportunity to repair which opportunity defendant flatly rejected, claiming no responsibility. Further, this case is not governed by LSA-C.C. Art. 2531 which applies to a seller who knew not the vices of the thing but is governed by LSA-C.C. Art. 2545 applicable to a seller who knows the vice of the thing he sells and omits to declare it.

NEGLIGENT OPERATION OF THE VEHICLE AND REPAIRS BY THIRD PARTY

Defendant contends plaintiff is not entitled to rescission of the sale because he cannot return the parties to status quo by reason of his negligent and abusive operation of the vehicle after its purchase and because of attempted repairs of the car by third parties.

The evidence does not support defendant’s contention that plaintiff abused or improperly maintained the car after its purchase. To the contrary, the evidence discloses plaintiff made reasonable efforts to have the defect corrected. In attempting to have the automobile repaired by third parties after defendant disclaimed any responsibility, plaintiff acted reasonably and the steps he took were calculated to minimize the damages to both parties. The attempted repairs did not so alter the condition of the automobile that the seller cannot be restored to status quo by return of the vehicle. See LaFleur v. Bryce Machinery Corporation, 294 So.2d 498 (La.1974).

ALTERNATIVE MOTION TO REMAND

After briefs were filed and after oral argument in this court, defendant filed an alternative motion to remand alleging that the automobile was actually returned to defendant by plaintiff the day before oral argument and the odometer showed the car had been driven over 3,000 miles after the sale, whereas plaintiff testified on trial it had only been driven two or three hundred miles. Defendant asks that the case be remanded for the taking of further evidence in this regard.

The number of miles the car was driven after purchase is not a significant fact in this ease and would not alter the decision. Defendant did not reconvene or otherwise plead an offset or credit for plaintiff’s use of the automobile. The evidence as to the odometer reading was readily available to defendant prior to trial. The motion to remand is denied.

DECREE

For the reasons assigned, the judgment of the district court is affirmed at defendant-appellant’s cost.

Affirmed.


text:
    Michael C. RITTER, Plaintiff-Appellant, v. LEIGH & WIGGINS, INC., et al., Defendants-Appellees.
    No. 12977.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.
    Joe D. Guerriero, Monroe, for plaintiff-appellant.
    Snellings, Breard, Sartor, Shafto & Inab-nett, by Kent Breard, Monroe, for defendants-appellees.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

The issue presented in plaintiff’s appeal is purely factual:

Did plaintiff prove by a preponderance of the evidence that the defendant insurance agency misrepresented coverage under a fire insurance policy purchased by plaintiff?

The lower court decided against plaintiff. We affirm.

In May, 1973, plaintiff purchased from defendant a fire insurance policy on four rental dwellings. Defendant’s agent told plaintiff that coverage would not be afforded under the policy on any dwelling that should become vacant for more than 45 days. When the policy was purchased the agent satisfied himself by a cursory inspection that the rental dwellings were in fact occupied. The agent observed such things as trash, a clothesline in use, porch furniture, one person sitting on the porch of one dwelling, to cause him to conclude the dwellings were occupied.

In July, 1974, after some negotiation over payment of past due and future premiums, the policy was renewed but without inspection by the agent to determine occupancy of the dwellings.

In May, 1975, two of the dwellings sustained a fire loss, the amount of which was stipulated. The agency agrees that it would be legally obligated for the stipulated loss should it be found that the coverage had been misrepresented.

Plaintiff and his bookkeeper testified that in 1974, when the policy was renewed, plaintiff discussed with the agent the fact that the four dwellings had been vacant and had been condemned by municipal authority as unsafe, since June, 1973. Plaintiff contends that although the agent knew the dwellings had not been occupied for much longer than the 45-day policy period, the agent intentionally misrepresented to plaintiff that the policy would afford coverage.

The record establishes that defendant has been in .business as a reputable agency for a number of years; that commission on the premium charged was only $20; and that the agent followed a practice of not writing fire insurance on property known to be vacant.

The trial court’s reasons for judgment implicitly found defendant’s testimony more credible than the testimony of plaintiff and his bookkeeper. A general finding of credibility fulfills the function of a lower court as the trier of fact. It is not necessary that detailed findings on each issue of credibility be made where testimony is conflicting. Plaintiff contends the trial court’s “reasoning” is contrary to the decision in Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971). Jordan discussed generally the burden of proof in “Louisiana tort cases . . . ” and concluded on this point:

“Whatever the descriptive term used [reasonable certainty, greater weight of evidence, more convincing, legal certainty, etc.], however, proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.” (Material in brackets and emphasis supplied). 245 So.2d 155.

We do not find the trial court’s reasoning contrary to Jordan, even though we accept, arguendo, its authority.

Misrepresentation, upon which plaintiff relies, is artifice which is condemned under the category of fraud by the Civil Code. See Articles 1847-1849 LSA-C.C. Article 1848 is appropriate when considering how fraud or misrepresentation is to be proved.

On plaintiff’s burden of proof, the lower court stated in part:

“When you have two parties at complete loggerheads over a question, then a case cannot be decided in favor of the proponent . . . [t]he court has to resolve a case like this on who has the burden of proof and whether that person has carried it. . [t]he testimony of plaintiff was presumably backed up by his bookkeeper, but a preponderance of the evidence is not necessarily a numerical preponderance [See Pennington v. Panepinto, 328 So.2d 812, 815 (La.App. 1st Cir. 1976)], it is a preponderance of the entire case and I just don’t believe plaintiff has proved his case by a preponderance . . . ” (Case cited in brackets supplied. Emphasis supplied)

The trial court’s comments can easily be paraphrased in the language of Jordan, quoted above: “ . . . [t]aking the evidence as a whole, I just don’t believe plaintiff has proved his case by a preponderance . . ."

Our obligatory review of the evidence convinces us that the lower court did not err in accepting, rejecting or in weighing the conflicting testimony. At appellant’s cost, judgment is

AFFIRMED.

      . “Fraud, like every other allegation, must be proved by him who alleges it, but it may be proved by simple presumptions, as well as by other evidence. The maxim that fraud is not to be presumed, means no more than that it is not to be imputed without legal evidence.”


text:
    In re JONES.
    No. 12978.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.
    Writ Refused Dec. 8, 1976.

      J. Stacey Freeman, Shreveport, for opponent-appellant.
    Francis M. Gowen, Jr., Shreveport, for petitioner-appellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

This is an adoption proceeding in which a stepfather seeks to adopt the minor child of his wife. The central issue presented on appeal is whether the natural father refused or failed to comply with a court order of support for a period of one year within the intent and meaning of LSA-R.S. 9:422.1, thereby making the father’s consent to the adoption unnecessary. The Juvenile Court held that the father failed to comply with a court order of support without lawful justification, that his consent was not necessary, and that it was in the best interest of the child to grant the adoption. For reasons expressed in this opinion, which are in accord with the reasons given by the Juvenile Court, we affirm the judgment.

The parents of the child were divorced on March 27, 1972. The divorce judgment awarded custody of the child, then four years old, to the mother and ordered the father to pay to the mother support for the child in the amount of $100 per month. The father made the child support payments to the mother through October or November, 1972.

The mother married petitioner on September 29, 1972. In January, 1973, the father sent the mother a check for child support. The mother attempted to cash the check but it was returned marked insufficient funds. She made no further efforts to cash the check.

The evidence as to events transpiring between the father and the mother about this time is conflicting. The father testified the mother blocked attempts by him to see the child and told him she did not want and would not accept further child support payments. The mother denied she ever told the father she would not accept child support payments. The evidence establishes that the mother did advise the father’s attorney that her new husband wanted to adopt the child. The attorney contacted the father and then advised the mother that the father opposed the adoption and would not consent to it.

In February or March, 1973, upon the advice of his attorney, the father opened a savings account in a local bank, initially depositing $300, the amount of child support due at that time. The account was opened in the name of the child or in the name of both the child and the father, the evidence being unclear as to the exact name of the account. Only the father, or his sister, under a general power of attorney, had the authority to make withdrawals from the account.

On March 19, 1973, the father’s attorney wrote to the mother advising her that an account containing the child support funds had been set up at the bank. The letter stated: “If you would like to withdraw this money or know the balance of the account at any time, please contact this office and we will be glad to help you.” On June 27, 1973, the attorney wrote another letter to the mother advising her that the balance in the account was $700 and that $100 would continue to be deposited each month “for your convenience.”

After receipt of the first letter, the mother contacted the bank to verify that such an account had, in fact, been opened. She was advised by the bank that she could not make withdrawals. She never made any request to the father or his attorney to withdraw the money or to have the child support paid in any other manner. The mother testified she was told by the father that the money would stay in the bank and could not be touched until the child was eighteen years of age.

The stepfather, a self-employed professional man, filed the petition for adoption in March, 1974. An opposition was filed on behalf of the father. While the adoption proceeding was pending, the father sent the mother $700 in December, 1974, as a Christmas present for the child, and $100 in July, 1975, as a birthday present. In January, 1975, the father’s attorney wrote the mother advising her the current balance in the account was $2,532.13 and advising her “you have but to contact this office for payment in full from this account.” Another letter was written by the attorney in April, 1975, to the same effect.

After the trial, the Juvenile Court found (1) the mother had committed no acts nor had she conducted herself in such a manner as would justify the father in withholding child support payments; (2) the funds in the bank account could only be withdrawn by the father or his sister who had a power of attorney; (3) the father’s depositing of the funds in the savings account was not in substantial compliance with the court order and was without lawful justification; (4) that therefore the consent of the father is not necessary; and (5) it is in the best interest of the child that the adoption be granted. On appeal, the natural father argues principally that he was justified in establishing the bank account for the deposit of child support payments.

LSA-R.S. 9:422.1 provides that when (1) the spouse of the parent granted custody is seeking the adoption, and (2) the natural parent without custody has failed to comply with a court order of support for a one year period, the petition may be granted without the consent of the natural parent without custody. It is clear that in this case the natural father has failed to comply with the court order of support for more than one year. A judgment for child support is the' property of the custodial parent. Coleman v. Coleman, 209 So.2d 801 (La.App. 2d Cir. 1968); Simon v. Calbert, 289 So.2d 567 (La.App. 3d Cir. 1974). The obligation of making child support payments may only be met by making payments to the custodial parent. Rodriguez v. Rodriguez, 245 So.2d 765 (La.App. 4th Cir. 1971).

The case of In re Salmon, 318 So.2d 897 (La.App. 2d Cir. 1975) is analogous to the instant case. In that case, the father purchased savings bonds in the name of himself and his child. He subsequently cashed the bonds himself. The court held that the purchase of savings bonds in the name of the father and his child did not comply with the support order. In the instant case, the father did not withdraw the money himself, but he had and still has the right to do so at any time. The funds never left the control of the father. The mother must be placed in control of the child support funds for compliance with the court order to exist.

The payments made by the father as Christmas and birthday gifts have no bearing on this petition, because the gifts were made after the petition was filed. It is established that even an offer to pay full arrearages after the petition is filed will not defeat the action. See In re Salmon, 318 So.2d 897 (La.App. 2d Cir. 1975). Christmas and birthday gifts made after the petition is filed certainly can be no more effective than belated payment of ar-rearages in child support. Likewise, the letters written to the mother by the father’s attorney after the petition was filed are of no effect.

Since the father failed to comply with the court order, his consent is not necessary unless noncompliance was justified within the rule established by In re Ackenhausen, 244 La. 730, 154 So,2d 380 (1968). In that ease, the Supreme Court stated:

“The Legislature never intended by this provision to dispense with consent where the legitimate parent shows that his failure to comply with the court order for support was for reasons beyond his control. It intended that consent be dispensed with only where the parent refuses to comply with the order or fails to comply with the order without justification.”

The appellant lists a number of actions of the mother which he claims provide sufficient justification for noncompliance. Appellant claims the mother denied him visitation rights. The evidence supporting the claim is not persuasive, but even assuming its truth, the proper course of action was for the father to seek redress through the courts.' A belief that visitation rights have been denied is not an adequate excuse for failure to pay child support. In re Moody, 201 So.2d 222 (La.App. 2d Cir. 1967).

The second claim by appellant is that the bank account as a method of payment is justified because the mother refused to accept child support. Appellant has only his own version of a conversation with the mother in support of his claim, and the evidence as a whole does not support it. The mother attempted to cash the last support check which appellant sent her, but it was returned marked insufficient funds. The mother inquired about withdrawal of the money from the account after it was opened, but found she had no control over it. The mother was not obligated to secure compliance with the court order by taking affirmative action through appellant’s attorney to withdraw the funds. The letters written by the attorney prior to filing of the adoption petition were less than positive as to her right to withdraw the funds upon her request. Child support funds are the property of the mother, and substantial compliance requires that the mother be placed in control of the funds without further action on her part.

Finally, appellant argues that in addition to failure to comply with an order of support under LSA-R.S. 9:422.1, a protracted period of neglect by the parent should be a prerequisite to an adoption by a step-parent without consent of the natural parent. The statute does not so provide and this interpretation would defeat the intent of the legislature in enacting the statute. The trial judge found noncompliance without justification for a period of one year. He also found the adoption would be in the best interests of the child. Under LSA-R.S. 9:422.1, these findings are sufficient to grant the petition, and the findings are supported by the evidence.

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

Affirmed.


author: BOLIN, Judge.

text:
    Thomas L. SANDERS et ux., Plaintiffs-Appellees, v. WESTERN CASUALTY & SURETY COMPANY et al., Defendants-Appellants.
    No. 12986.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.

      Wilkinson, Carmody & Peatross, by Arthur R. Carmody, Jr., Shreveport, for defendants-appellants.
    McKneely & McKenzie, by Roland V. McKneely, Jr., Bossier City, for plaintiffs-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Mrs. Jane Sanders was injured when a car in which she was riding collided with an automobile insured by Western Casualty & Surety Company. Mrs. Sanders and her husband seek damages for the wife’s personal injuries and the expenses incurred by the community. The wife obtained judgment against the insurer and the driver of the other car for $7,500, and the husband was awarded $475.64. Defendants appeal claiming the awards to both Mr. and Mrs. Sanders were excessive. We amend the judgment by reducing the award to the wife.

Since defendants’ liability has been admitted, the only issue is whether the amount of either award was so excessive as to constitute an abuse of discretion by the trial judge.

Mrs. Sanders was injured in a minor automobile collision. Immediately after the accident she told the investigating officer she was not hurt. However, soon after going back to her home she began having headaches and said she attempted to call a doctor. The first time she was seen and examined by a physician was eight days later. This doctor, an orthopedist, testified that upon his initial examination he concluded she was suffering from a strain to the neck portion of her spine, which he attributed to the accident. He prescribed a muscle relaxant and a painkiller. She complained of headaches and pain in the region of her shoulder and neck when he saw her again about 13 months later. At this second visit he gave her a complete physical examination and concluded her pain could be the result of her automobile accident although the objective symptoms were “not very pronounced.”

Approximately five weeks following the accident Mrs. Sanders was seen by a neurologist to whom she was referred by the orthopedist. This specialist gave her a complete examination and stated he found nothing “remarkable except for the spasm and tenderness of the neck muscles.” He noted her complaints of headaches and gave her antidepressant medication. He examined her again about one month later and found her headaches had improved. Mrs. Sanders was seen by this doctor five additional times, the last visit being approximately 13 months after her injury. His final conclusion was that she had suffered from headaches and pain in the cervical area which had lessened and become almost non-existent at the time of his last examination. He said her pain was consistent with the “history the patient gave him of being involved in a car wreck.”

Mrs. Sanders was also examined approximately 15 months after the accident by a second neurologist. She gave him a history of severe headaches and neck pains. After giving her a thorough examination he could find no objective symptoms to justify her complaints. He said he could find no cause for her headaches but that her complaint of neck pain was consistent with the car wreck and his physical examination.

Numerous lay witnesses testified that Mrs. Sanders had changed noticeably since the accident. They said she had formerly been active, happy and outwardly free from pain, but since the wreck she had constantly complained of headaches, she was irritable, and had undergone a complete personality change.

The trial judge in his written opinion said “. . . it was observed that while on the witness stand she [Mrs. Sanders] was very nervous and became upset . . .”

Louisiana Civil Code Article 1934(3) provides that in assessing damages for offenses or quasi offenses much discretion must be left to the judge or jury. Beginning with Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), our courts have consistently held this Civil Code article means what it so clearly provides. In this case we must examine the award in line with our constitutional duty to review both the law and the evidence in order to determine if the award is so excessive as to constitute an abuse of the much discretion granted the trial judge. Our duty is not to examine the award to .determine if it is consistent with awards in similar cases.

We are convinced the great weight of the evidence does not support the amount of the award. Considering the medical evidence in a light most favorable to Mrs. Sanders, she has no permanent disability. Contrary to appellants’ contention, we find the lay testimony should be considered even in the absence of conflicting medical testimony. Tantillo v. Liberty Mutual Insurance Co., La., 315 So.2d 743 (1975). The medical and lay testimony convinces us Mrs. Sanders suffered headaches and neck pains which were temporarily severe but had practically disappeared within 13 months following the accident. Under this finding the award to her of $7,500 for her personal injuries constituted an abuse of discretion and we reduce this amount to $5,000 which we consider to be in the upper level of a proper award.

The award to the husband was for the payment of medical bills. Appellants contend some of the medical examinations were unnecessary. We disagree with this contention since Mrs. Sanders was justified in searching for a cause of her suffering.

The judgment is amended by reducing the award to Mrs. Jane Sanders from $7,500 to $5,000 and as amended the judgment is affirmed at appellants’ cost.


text:
    William Thomas BARHAM, Plaintiff-Appellee, v. Mary Brodnax BARHAM, Defendant-Appellant.
    No. 12980.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.
    Writ Refused Dec. 8, 1976.

      James Sparks, Jr., Monroe, for defendant-appellant.
    James P. Madison, Bastrop, for plaintiff - appellee.'
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

In this domestic relations case the defendant-wife appeals from a judgment granting the plaintiff-husband a divorce, awarding the husband custody of three minor children, and awarding the wife alimony of $300 per month. The issues on appeal presented by appellant’s specifications of error relate to the trial court’s (1) refusal to grant a continuance and alleged refusal to allow appellant’s newly employed attorney to recall witnesses; (2) denial of appellant’s motion to recuse the trial judge; (3) conclusion that appellant failed to prove her defense of reconciliation; and (4) award of custody of the children to appellee. The alimony award is not at issue on appeal.

Procedural Background

In April, 1975, the husband filed suit for divorce under LSA-R.S. 9:301 on the grounds of living separate and apart continuously for more than two years and for custody of the parties’ three children who were then still minors. By exceptions and answer the wife, through counsel, denied the continuous separation for more than two years and specifically alleged reconciliation by reason of four separate incidents of marital relations in September and October, 1974. The wife reconvened for custody of the children and for child support and alimony.

The preliminary matters were tried on May 16 and 22, 1975. Judgment was rendered on May 22 and signed on June 4. Alimony pendente lite was fixed and, by consent, the husband was awarded temporary custody of the three children, reserving to the wife the right to seek permanent custody. Throughout these proceedings the wife was represented by counsel.

The minutes reflect that on May 27,1975, the case was ordered set for trial on June 11. On May 30, appellant’s attorney withdrew as counsel by formal motion and order. On June 9, appellee’s attorney and appellant, in proper person, appeared at a pretrial conference.

Continuance

When the case was called for trial on June 11 appellant orally moved for a continuance on the grounds that she was not represented by an attorney and that she was suffering from an eye disease which made participation in a trial difficult. Evidence was taken on the motion which showed appellant had several attorneys since the parties separated and that she ultimately discharged each of them including the attorney representing her in this proceeding who was discharged shortly before trial. Although she had talked to other attorneys she had no definite arrangements for the employment of counsel to represent her in this proceeding. Appellant testified she' actually did not want to go to trial at all and was hoping for a reconciliation.

The trial court found there was little reason to believe appellant could or would employ an attorney to represent her within a reasonable period of time and appellee was entitled to go forward with the trial. The court further found from its observation and the inconclusive nature of a letter written by a doctor that there was no medical reason appellant could not proceed. The motion for continuance was overruled. Trial was commenced and appellee and two or three other witnesses testified throughout the day of June 11.

When court resumed the following day, June 12, a new attorney was enrolled as counsel for defendant. A written motion for continuance was filed and granted. The ease was continued until June 19.

Trial resumed on June 19. Counsel for appellant made an oral motion to begin the trial anew. The court declined to start the trial over from the beginning but advised counsel he could recall any witness he wanted as long as he was not too repetitious. The trial continued June 19 and 20. The case was taken under advisement and a decision was rendered June 27.

Appellant’s oral motion for a continuance was not based on any of the peremptory grounds enumerated in LSA-C.C.P. Art. 1602. The granting of a continuance on grounds other than those listed in LSA-C.C.P. Art. 1602 rests within the sound discretion of the trial court. LSA-C.C.P. Art. 1601. We find no abuse of that discretion by the trial court in this instance. The medical reason for the continuance was not supported by the evidence or by the trial judge’s observation of the appellant. She was unrepresented only because she discharged her attorney shortly before trial and had not made arrangements for another attorney. Her situation was of her own making. Appellant’s own testimony strongly indicates she came to court on the day of trial without an attorney primarily for the purpose of obtaining a delay in the trial.

It is to be noted that when the trial proceeded with appellant unrepresented the trial court afforded her assistance and wide latitude in the conduct of her case, including cross-examination of appellee’s witnesses. It is to be further noted that after only a part of one day of trial, when counsel was enrolled for appellant the court did grant a continuance and, in addition, allowed counsel wide latitude to recall witnesses who had previously testified. The case was thoroughly and capably tried on behalf of appellant by her trial counsel, who called several witnesses on her behalf and who conducted vigorous cross-examination of appellee’s witnesses. It should be noted that appellant was represented on appeal by still another attorney, who filed a competent brief on her behalf.

Appellant was fairly accorded her day, or several days, in court. There was no prejudice to her by reason of the denial of her motion for a continuance by the trial court, which soundly exercised its discretion in the matter.

Recusation

After the case was called for trial on June 11, and after appellant’s motion for continuance was denied, appellant orally moved that the trial judge recuse himself from the case. The reasons given by appellant were that the judge was prejudiced because he was previously involved as an attorney in litigation adverse to her in an estate matter and the judge showed his prejudice in denying the motion for a continuance.

The court denied the motion stating that it had no interest in the proceedings, that the litigation referred to was several years ago and had no connection with the instant suit, that the motion was not in writing as required by the Code of Civil Procedure and that the motion was not made prior to trial as required by the Code of Civil Procedure.

The ruling of the trial court was correct because the motion to recuse was not in writing and was not filed prior to trial as required by LSA-C.C.P. Art. 154. The litigation .matter stated as the basis of the motion was known to appellant long before trial and the motion coming after trial commenced was not timely. Additionally, the motion, even if in proper form, was not based on any of the grounds for recusation provided in LSA-C.C.P. Art. 151.

After appellant obtained counsel and when trial resumed on June 19, a written motion for recusation was filed on her behalf, through counsel, alleging as grounds that the trial judge “is interested in the cause and defendant has filed a complaint with the Louisiana Supreme Court Judiciary Committee on same judge.” Pursuant to LSA-C.C.P. Arts. 154 and 155, the trial judge referred the motion to recuse to another judge of the same court for a hearing or trial. The minutes of the court reflect that the motion was taken up the same day before the other judge with all parties present. The other judge ruled that the motion was filed too late and had no valid grounds and the motion was denied.

Appellant argues that the judge who heard the motion to recuse did not allow the presentation of evidence. The record indicates that no evidence was taken but the record does not indicate that any effort was made by appellant’s attorney to offer evidence in support of the motion. In any event, the fact alleged in the motion that appellant had filed a complaint with the Judiciary Commission against the trial judge does not constitute a ground for recu-sation under LSA-C.C.P. Art. 151. The filing of a complaint with the Judiciary Commission does not make the judge “interested in the cause” which is the only ground for recusation under Article 151 alleged in the motion.

The motion to recuse was properly referred to another judge for hearing and then was properly overruled by the other judge.

Reconciliation

After more than thirty years of marriage and the birth of seven children, the husband and wife separated at the husband’s instance in March, 1973. They established separate homes and have not lived together since that time. The husband continued to live in Oak Ridge and the wife later moved to Bastrop. All three of the minor children have lived with the father since the separation, or not long thereafter, and a twenty year old daughter who attends Louisiana Tech lives with her father when not at college.

The wife’s defense to the granting of the divorce is that the parties reconciled by having sexual relations on four specific occasions in August and September, 1974. The wife testified three of these acts occurred at a house where she was living and the fourth at the house of her husband. The husband testified he never had sexual relations with his wife after they separated and was careful not to even be in her presence without witnesses. All of the acts were alleged to have occurred during daylight hours in a small community, but the wife did not produce any corroborating witnesses or evidence that the husband was at her house at the alleged times. There was corroborating evidence that the husband was at another place at the time the first incident was alleged to have occurred.

The trial court held the wife’s testimony was not credible, because of its unreasonableness. The court further held that the party relying on reconciliation as a defense has the burden of proving such defense and defendant failed to bear that burden, citing Walker v. Walker, 159 So.2d 344 (La.App. 2d Cir. 1963). See also Joly v. Williams, 215 La. 312, 40 So.2d 476 (1949); Barnes v. LeBlanc, 207 La. 989, 22 So.2d 404 (1945); Pace v. Pace, 144 So.2d 195 (La.App. 4th Cir. 1962); and Brown v. Brown, 260 So.2d 66 (La.App. 4th Cir. 1972) writ refused 261 La. 1067, 262 So.2d 45 (1972).

The evidence positively establishes that the husband and wife lived separate and apart in separate homes continuously for more than two years.” In the face of this evidence, which clearly establishes a prima facie case for granting a divorce under LSA-R.S. 9:301, the burden was on the wife to establish any facts which she relied on as amounting to a reconciliation or as establishing that the parties did not, in fact, live separate and apart continuously for the two-year period. She failed to bear that burden of proof. The weight of the evidence does not support her allegations. In fact, the preponderance of the evidence is to the contrary. The alleged acts of sexual relations are inconsistent with the attitudes and actions of the husband, in his late sixties, toward the wife, in her early fifties, which show a total lack of affection. He was seldom if ever around her without witnesses present or unless there was some particular reason for him to be in her presence. His whereabouts elsewhere on the date of one of the alleged incidents is corroborated.

The husband proved the grounds for divorce under LSA-R.S. 9:301 and the evidence does not support the wife’s defense.

Custody

Of the three minor children, the custody of whom was awarded to the father, one is no longer a minor and one died subsequent to the custody judgment. The remaining minor child is a seventeen year old boy who had lived with the father for more than a year prior to trial, along with the other three children who were then still at home. The record shows that all of the children were well-adjusted, attended school, made good grades and were well-disciplined. Their father, who is retired, stays at home most of the time, prepares the meals, and attends to the children’s other needs. The son whose custody is in question testified that he prefers to live with his father and that he would not live with his mother no matter what the court ordered. Although the child’s wishes are not determinative of the custody issue, it is a factor to be considered particularly since the child is not of a young age but is close to majority. The record shows that even before the parties separated the father prepared the meals, did the shopping, and attended to most of the other duties related to caring for the children. The evidence is overwhelming that it is in the best interest of the remaining minor child that his custody remain with his father. It would not be to the advantage of the child to upset his present situation and change custody to the mother at this point in time.

Conclusion

For the reasons assigned, the judgment of the district court is affirmed, at appellant’s costs.

Affirmed.

      . In a dissenting opinion in the Brown case, Judge Lemmon, while agreeing with the majority that a party relying on reconciliation as a defense has the burden of proving the reconciliation, disagreed with the result reached under the facts of the case. The judge opined that reconciliation is the; resumption or reestablishment of the relationship which formerly existed between the parties. The issue of reconciliation should be determined after consideration of all of the actions of the parties and all the circumstances of the case. One act or several isolated acts of sexual intercourse are not solely determinative of the issue of reconciliation. In a suit for divorce under LSA-R.S. 9:301, where acts of sexual intercourse are alleged as a defense, the issue may be more properly described as whether the parties in fact lived separate and apart continuously for the required period, rather than whether there was a “reconciliation”. If it were necessary to reach that issue in this case, a serious question would be presented as to whether four isolated incidents of sexual relations during a two-year period in which the parties otherwise lived entirely and continuously separate and apart would defeat the husband’s action for divorce under LSA-R.S. 9:301.


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    Owens PORTER, Individually and as Administrator of the minor, Gerald Wayne Porter, Plaintiff-Appellant, v. Charles E. JOHNSON et al., Defendants-Appellees.
    No. 12987.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.

      Hamilton, Carroll & Miller by Orlando N. Hamilton, Jr., Oak Grove, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by J. Bachman Lee, Monroe, for defendant-appel-lee, State Farm Mutual Automobile Ins. Co.
    Woodrow Wilson, Bastrop, for defendant-appellee, Charles E. Johnson.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Gerald Porter, 13 years of age, seeks damages for injuries received by him when a bicycle on which he was riding was struck by a car driven by Charles Johnson. The lower court without passing on Johnson’s negligence rejected plaintiff’s demand because of Gerald’s contributory negligence. Plaintiff appeals and we affirm.

The issue is whether the cyclist was guilty of negligence which contributed to the accident and, if so, did the automobile driver have the last clear chance to avoid the accident.

The accident occurred in the afternoon on a two-lane black-top highway. The weather was clear and the road surface was dry. Gerald Porter was using his bicycle to deliver newspapers to his customers who lived along the road. He testified he was riding his bicycle on the extreme right side of the southbound lane of traffic; that at one time he veered his cycle left one or two feet from the extreme right side to obtain a better view of a customer’s garage; that upon seeing the garage was empty he moved back to the extreme right side of the highway and continued riding south down the road. Young Porter remembers nothing about the accident itself.

Defendant Johnson testified he was driving his car south on the same highway. He stated that as he came around a curve in the road he saw the Porter youth approximately one-fourth of a mile ahead riding his bicycle on the right shoulder of the road. He said he reduced the speed of his car to about 45 miles per hour as he drew close to the bicycle; that Porter suddenly and without warning rode into the middle of the southbound lane. Johnson testified he applied his brakes and pulled his car to the left but was unable to avoid striking the cyclist. Johnson stated he did not sound his horn or give any warning of his approach.

The state trooper who investigated the accident concluded the point of impact was in the southbound lane about two feet from the center line of the highway. He measured 74 feet of skid marks laid down by the Johnson car. He testified the damage to Johnson’s ear was on the extreme right front and right side.

Assuming Johnson was negligent, we direct our attention to the question of young Porter’s contributory negligence. A child is not held to the same standard of care as an adult. He must exercise only the care expected of a person of his age, intelligence and experience under the particular circumstances presented to him. Cormier v. Sinegal, 180 So.2d 567 (La.App. 3d Cir., 1965).

The trial court found Porter’s veering into the automobile’s lane of travel met “the test for contributory negligence for such a youngster. He indulged in the gross disregard of his own safety in face of known, understood and perceived danger.” Plaintiff argues the lower court correctly stated the law but misapplied the law to the facts. Plaintiff contends a child must perceive the danger before he can be contribu-torily negligent. It is contended the young bicycle rider could be contributorily negligent only if he veered into the path of the overtaking car with knowledge that the car was behind him.

The Porter youth was 13V2 years old at the time of the accident and was average or above average in intelligence. He lived along the highway where the accident occurred and testified he know the road was heavily traveled and that care was required when crossing. It was not necessary to show he was aware of the specific thing which caused his injury but only that he recognized the danger inherent in this act and then disregarded that danger. Here young Porter knew of the danger inherent in veering suddenly into a heavily traveled highway. We find that action constituted negligence which contributed to the accident.

Plaintiff contends he should recover since the defendant Johnson had the last clear chance to avoid the accident. We find the last clear chance doctrine inapplicable because at the time Johnson discovered the boy’s perilous position it was too late to avoid the accident. Thomas v. Arceneaux, 307 So.2d 754 (La.App. 3d Cir., 1975).

The judgment is affirmed at appellant’s cost.


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    Gale A. CARTER d/b/a Gale Carter Realty, Plaintiff-Appellant, v. E. L. HAYES, Defendant-Appellee.
    No. 12990.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.
    Writ Refused. Dec. 3, 1976.

      Rankin & Yeldell, by James E. Yeldell, Bastrop, for plaintiff-appellant.
    Woodrow Wilson, Bastrop, for defendant-appellee.
    Before BOLIN, PRICE and JONES, JJ.
   BOLIN, Judge.

Gale A. Carter, a licensed real estate broker and agent, sued E. L. Hayes to recover $5,000 commission on a sale of farmland owned by defendant. The trial judge found the sale was made after the six-month written real estate contract had expired and rejected plaintiff’s demands. He appeals and we reverse.

Since the contract to sell was admittedly not consummated until the listing contract had expired, the issue is'whether the realtor “interested” a buyer during the contract period and, if not, whether defendant tacitly extended the contract beyond the date of the sale.

Defendant gave plaintiff a six-month exclusive contract to sell his farm. This contract expired on February 1, 1975, provided “a sale is not pending.” The contract required defendant to pay the commission if the property was sold within six months after its expiration, “provided the purchaser has become interested in said property as a result of the efforts or advertising of said agent during the active term of this listing.” Defendant contracted to sell the property to Thomas Hollanger on February 13, 1975.

On January 21, plaintiff met Hollanger at a gathering of farmers. Hollanger, president of a rice farm corporation, had been a customer of plaintiff. Hollanger inquired of plaintiff if he had any farms for sale which might be converted into rice production, and plaintiff indicated he did although he made no mention of any particular farm which he had available.

Two or three days later, Hollanger called on two consecutive days at plaintiff’s office to inquire which farms were on the market but plaintiff was not available. Several days later, Hollanger again called and talked to plaintiff asking him to call Hol-langer at his house. That evening plaintiff went to the Hollanger home and discussed in detail two farms, one of which was defendant’s property. At this meeting, which was after February 1st, Hollanger expressed interest in defendant’s property. On the following morning Carter accompanied Hollanger to show him defendant’s property.

Plaintiff then telephoned defendant and told him that he had some people interested in a rice farm; that he knew the listing had expired, but wanted to know if defendant still wanted to sell the land. Defendant answered in the affirmative. There was no direct discussion on an extension of the listing.

Later, Hollanger called plaintiff and told him he wanted to go on the land and locate water wells. Carter then called defendant and asked him to show Hollanger the wells, which defendant agreed to do. Again, there was no mention of the listing nor did defendant request that Carter cease his efforts.

It was February 9 or 10 when defendant met Hollanger at the farm and thus learned the name of the man who was interested in buying his farm. He told Hollanger the listing had expired and negotiations would have to be conducted with him personally. Two or three days later the contract of sale was signed and the act of sale was executed on March 6. The sale was made for the exact price Carter had quoted to Hollanger, which was originally intended to allow Carter $25 per acre commission over the amount defendant had wished to receive as the net selling price. Carter demanded his commission but defendant refused to pay, declaring the contract had expired February 1, and this lawsuit ensued.

In holding Carter was not entitled to a commission, the trial court emphasized that while Hollanger knew Carter had some land to sell prior to February 1, he did not know the owner, the price, or the location of the land. The court held one cannot be a prospective purchaser unless the property has been identified to the purchaser.

We find no identification requirement in the listing agreement. The contract requires only that the purchaser become “interested” in the property due to the efforts of the agent during the active term of the contract.

A real estate agent is entitled to his commission, even though the sale is made after the termination of the agency contract, if the agent, during the term of the contract, interests a purchaser which directly leads to the sale. The mere fact that the sale may have been in some way aided by the efforts of the agent does not alone entitle the agent to his commission. “Interesting a purchaser” is often referred to in our case law as “procuring cause”. Cramer v. Guercio, 331 So.2d 550 (La.App. 1st. Cir., 1976) and cases cited therein.

Sleet v. Williams, 291 So.2d 495, 498 (La.App. 3d Cir., 1974) gives the following definition of procuring cause as found in 12 C.J.S. Brokers § 91, page 208:

“As used in that branch of the law relating to brokers’ commissions, the terms ‘procuring cause’, ‘efficient cause’, and ‘proximate cause’ have substantially, if not quite, the same meaning and are often used interchangeably; they refer to a cause originating or setting in motion a series of events which, without break in their continuity, result in the accomplishment of the prime object of the employment of the broker, which may variously be a sale . . .”

During the six months period of the listing agreement Carter had advertised the property and he had shown it to numerous prospective purchasers. All of his actions beginning January 21, and continuing almost daily through February. 10, were directed toward procuring a purchaser for defendant’s farm. Hollanger did not know defendant’s property existed until so informed by Carter; defendant would never have known about Hollanger had Carter not called him about the prospective purchaser; the sale was effected within a time span of less than one month, during which time no other prospective purchasers appeared and none had been seriously interested within the preceding twelve months. These facts lead us to conclude the “purchaser had become interested in said property as a result of the efforts or advertising of said agent during the active term of this listing.”

Having decided Carter may recover under the terms of the listing contract, we need not decide whether defendant tacitly extended the contract.

The judgment is reversed and there is now judgment in favor of Gale A. Carter d/b/a Gale Carter Realty against E. L. Hayes for $5,000 plus legal interest from judicial demand until paid, plus costs.