text:
    Charles W. LEE, Plaintiff-Appellee, v. Gilton LEWIS, d/b/a Lewis Motor Company, Defendant-Appellant.
    No. 13046.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.

      Campbell, Campbell & Johnson, by John T. Campbell, Minden, for defendant-appellant.
    Emmons, Henry & Reeves, by Joseph A. Reeves, Jr., Jonesboro, for plaintiff-appel-lee.
    Before BOLIN, PRICE and JONES, JJ.

       Marvin, J., recused.

   PRICE, Judge.

Gilton Lewis has appealed from the judgment awarding Charles W. Lee damages for the wrongful seizure of a pickup truck which Lee purchased on credit from Lewis Motor Company.

The issues presented are: 1) Did the trial court abuse its discretion in refusing to grant defendant a continuance based on the absence of his counsel on the date of trial or by rendering a decision prior to defendant’s counsel submitting a brief? 2) Was the repossession of the truck a tortious conversion under the facts presented? 3) Was the amount awarded for damages excessive?

PROCEDURAL QUESTIONS URGED BY DEFENDANT

Defendant contends the trial judge abused his discretion in refusing to grant a continuance of the trial set for June 28, 1974, because of the absence of defendant’s counsel who was attending court in another jurisdiction. Two other members of the law firm representing defendant were in court on other matters on the date of trial. They were allowed a sufficient delay to assemble defendant’s witnesses, and they did make a presentation of defendant’s evidence. The record shows the case had been pending for approximately two years, and had been fixed for trial and upset previously at the request of defendant’s counsel, Under these circumstances, we find no abuse of the discretion of the trial judge in requiring the case to proceed to trial as scheduled.

There is no showing that the trial judge arbitrarily decided the case without allowing defendant’s counsel an opportunity to file a brief. The minutes show defendant’s counsel’s brief was to be filed within fifteen days after the filing of plaintiff’s brief. Plaintiff filed his brief shortly after the date of trial without waiting for the transcript of testimony. Approximately two and one-half months later, the court rendered a decision although defendant had not submitted a brief. Defendant’s counsel has not shown that he made a request for an extension of time based on the absence of a transcript of the testimony. Therefore, the trial judge was justified in rendering his decision in accord with the method of submission ordered at the completion of trial.

THE ISSUE OF LIABILITY FOR TOR-TIOUS CONVERSION

On March 4, 1972, defendant, a Minden used car dealer, sold plaintiff the pickup truck for a credit price of $2,160 represented by a note payable at $72 per month beginning April 4, 1972. Plaintiff paid the April installment, but did not pay the May and June payments when due. Prior to the due date of the July installment, defendant sent two employees to the residence of plaintiff in the rural area of Bienville Parish to take possession of the truck and store it until plaintiff made satisfactory arrangements to bring the delinquent payments up to date.

The question of liability for an illegal repossession hinges on whether the truck was voluntarily surrendered by plaintiff. The default in payments by plaintiff does not justify the repossession by defendant’s agents of his truck without resort to proper legal process unless he voluntarily consented to the method of repossession. Levy v. Andress-Hanna, Inc., 96 So.2d 373 (La.App. 2nd Cir. 1957).

Plaintiff contends the defendant’s employees came to his house and told him they had been sent for the truck by defendant because the payments were delinquent. He further contends that although he offered to pay them the two installments then past due, they refused to accept the payments as they had been instructed to bring the truck in to be stored, and that he would have to make payment directly to defendant.

Although this version of the facts surrounding the repossession is disputed by defendant and his employees, the trial judge found the testimony of plaintiff and his corroborating witnesses sufficient to establish the surrender of the truck was not voluntary.

This is a reasonable construction of the evidence. Defendant’s agents admitted they could not accept payment of the past due amount, but were under instructions to bring in the truck. Plaintiff was not requested to sign a written consent for release of the vehicle. The fact that plaintiff did not physically resist defendant’s agents in their taking possession of the vehicle does not establish voluntary consent on his part. Under the circumstances, the trial judge properly found the repossession constituted a tortious conversion.

REVIEW OF DAMAGES AWARDED

The trial court allowed plaintiff as special damages, the sum of $572, representing the $500 trade-in value of an automobile, and the $72 payment made by plaintiff on the chattel mortgage note. The court awarded general damages of $750 for humiliation and embarrassment. The judgment ordered the cancellation and return of the promissory note and chattel mortgage executed by plaintiff on the vehicle. Plaintiff’s claim for attorney fees was rejected.

Defendant contends the judgment is excessive and should be reduced. Plaintiff has answered the appeal requesting he be awarded attorney fees for an illegal seizure of his property.

The items of damage complained of by defendant is the amount of general damage for humiliation, embarrassment, and inconvenience awarded to plaintiff. Defendant contends the amount awarded is punitive when considered under the standards set forth in Price v. General Motors Acceptance Corporation, 95 So.2d 834 (La.App. 2nd Cir. 1957). We find the circumstances surrounding the repossession to have caused plaintiff a minimal amount of embarrassment and an award of $200 would be adequate.

Defendant also contends the judgment is erroneous in ordering the cancellation of the indebtedness owed by plaintiff on the chattel mortgage note. He contends the indebtedness is not affected by the repossession and that the damages should not exceed the fair market value of the truck at the time of the repossession under the case of Johnson v. Smelley, 185 So.2d 293 (La.App. 1st Cir. 1966). Also see Vercher v. Toda Enterprises Inc., 216 So.2d 318 (La.App. 3rd Cir. 1968). Defendant also contends any judgment in favor of plaintiff should be offset by the balance still owing on the chattel mortgage note.

These cases do set forth the proper method of arriving at damages for an illegal repossession of a motor vehicle. It is apparent, however, that the trial judge attempted to accomplish a result substantially in accord with these decisions by ordering the cancellation of the indebtedness owed. This observation is based on the coincidence that the value of the vehicle and the balance owed on the note are approximately the same. The court accepted the cash sales price shown in the contract of sale ($1,995) as reflecting the value at the time of repossession because such a short time intervened between the two events. This in practical effect gave plaintiff the correct measure of damage for loss of the truck and also allowed defendant to receive credit against this amount the approximate sum owed by plaintiff under the mortgage note ($2,088). This ruling reaches the most equitable result under the circumstances.

The judgment ordering the cancellation of the indebtedness and return of the note to plaintiff should be conditioned on plaintiff’s execution of the necessary instruments for transfer of title.

The trial court was correct in denying plaintiff’s request for attorney fees. Plaintiff relies on a decision of this court to support his argument that attorney fees are recoverable as an item of damages in an illegal seizure. Cox v. Smith, 275 So.2d 459 (La.App. 2nd Cir. 1973).

In the Cox ease, the allowance of attorney fees was to recompense the plaintiff for cost occasioned in hiring an attorney to obtain injunctive relief to prevent the sale of exempt property under a writ of seizure and sale. The circumstances warranted an exception to the general rule that attorney fees are not recoverable except when agreed to by contract or as provided by statute. This case is not sufficiently analogous to the circumstances of Cox to bring it within the exception to the general rule on recovery of attorney fees.

The judgment is amended to reduce the amount of general damages to the sum of $200. The order for defendant to return the mortgage note and to cancel the indebtedness represented thereby is subject to the plaintiff executing the necessary transfer of title to the vehicle. As amended, the judgment is affirmed at appellant’s costs.


source: Caselaw Access Project

author: BOLIN, Judge.

license: Public Domain

text:
    Durwood WIGLEY et al., Plaintiffs-Appellees, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellant.
    No. 13047.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Goff, Goff & Levy by Robert W. Levy, Ruston, for defendant-appellant.

      Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for plaintiffs-appel-lees.
    Before- BOLIN, PRICE and JONES, JJ.
   BOLIN, Judge.

Plaintiffs’ two minor children were killed while riding in a non-owned uninsured automobile. Plaintiffs sue Commercial Union Insurance Company for the funeral expenses of the two children under the medical payment provision of a policy issued by Commercial Union on a car owned by plaintiffs. The lower court prorated defendant’s liability with other insurance covering a second car owned by plaintiffs and rendered judgment in favor of plaintiffs plus penalties and attorney’s fees. Defendant appeals and we affirm.

There are two issues:

(1) Is defendant liable?
(2) If there is liability, was defendant arbitrary and capricious in the manner in which it paid the amount due under the policy?

Plaintiffs owned two vehicles. One vehicle was insured by State Farm under a policy which included $5,000 medical payment and funeral benefits; the other by a policy with Commercial Union providing $500 medical payment and funeral benefits. State Farm paid the entire funeral and medical expenses which amounted to $1791.71 per child.

Defendant contends that inasmuch as the entire expense was covered within the State Farm policy limits, defendant, as excess insurer, owed nothing. This argument is based on the following provision of Commercial’s policy:

. [T]he insurance with respect to temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible automobile and medical payments insurance.

Our courts have held that when medical payment provisions in two or more policies limit their coverage with similar excess clauses and both policies have the same status as other primary or secondary insurers, the excess clauses are mutually repugnant and are unenforceable. The policies of both Commercial Union and State Farm have the same provisions for excess coverage as to non-owned automobiles, thus those provisions render each other ineffective. Graves v. Traders & General Insurance Co., 252 La. 709, 214 So.2d 116 (1968).

In the alternative, Commercial Union relied upon an “other insurance” clause in its policy to conclude it only owed a pro rata share of those expenses, or $168.14 for each child. Defendant then issued two checks for $168.14 each, payable to Edmonds Funeral Home, and forwarded them to plaintiffs’ attorney.

We agree with the trial judge that the pro rata share owed by defendant was properly calculated and the two checks for $168.14 drawn by defendant were in the correct amount. However, the funeral home was not the insured or a payee under the policy held by plaintiffs, nor was there any evidence that plaintiffs or their attorney had assigned the proceeds of the policy to the funeral home. At the time of trial defendant had never acknowledged it was indebted to plaintiffs under the insurance policy.

Defendant contends the checks were properly made payable to the funeral home under the language of the policy providing the insurer would make payment “to or for the named insured”. We conclude the trial court correctly found these checks were not made to or for the insured.

As stated in Albert v. Cuna Mutual Insurance Society, 255 So.2d 170 (La.App. 3d Cir., 1971), a misinterpretation by the insurer of its own policy provisions does not relieve the insurer of the payment of penalties and attorney’s fees. Albert was cited with approval by this court in Davis v. Aetna Casualty & Surety Co., 329 So.2d 868 (La.App. 2d Cir., 1975).

We conclude the trial court correctly found that by making the two checks payable to Edmonds Funeral Home rather than to the insured, defendant acted arbitrarily and is liable for penalties and attorney’s fees.

The judgment is affirmed at appellant’s cost.


author: JONES, Judge.

text:
    Succession of Floyd Delaney RUGG.
    No. 13049.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 3, 1977.
    John S. C. Massey, West Monroe, for appellant.
    James M. Dozier, Jr., Farmerville, for appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Floyd Delaney Rugg died intestate on September 11, 1975. His surviving spouse qualified as the administratrix of decedent’s estate on October 17, 1975. On December 17,1975, the decedent’s six heirs filed a rule against the administratrix seeking to terminate the administration and to be sent into possession of decedent’s estate. In the litigation which followed, a dispute arose between the heirs and the surviving spouse as to whether a sum of $11,500 on deposit in the bank was separate or community property. The administratrix also contested the heirs’ right to terminate the administration and be sent into possession for the reason the petition for possession failed to have attached an affidavit verifying the allegations, executed by at least one of them, as required by LSA-C.C.P. Art. 3002.

The trial court determined that the $11,-500 was obtained from the sale of timber located on the separate property of decedent and was therefore separate property. The trial court held the heirs were entitled to be sent into possession of decedent’s estate because three of them testified under oath in open court as to the correctness of the essential allegations of the petition for possession, and this sworn testimony provided substantial compliance with the requirement of C.C.P. Art. 3002. The administra-trix appeals assigning as error: (1) the failure of the trial court to hold the funds derived from the timber sale were community property; and (2) the failure of the trial court to deny the heirs’ petition for possession because it did not have attached the verifying affidavit required by C.C.P. Art. 3002. We affirm.

The administratrix contends that the proceeds of the timber sale from her husband’s separate estate belonged to the community under the provisions of C.C. Art. 2402:

“This partnership or community consists of the profits [fruits] of all the effects of which the husband has the administration and enjoyment, either of right or in fact, . . . .”

The thrust of her argument is that our Supreme Court in Milling v. Collector of Revenue, 220 La. 773, 57 So.2d 679 (1952) held that funds received by a husband from bonus, delay rentals and producing royalty payments under an oil and gas lease of property belonging to the husband’s separate estate were fruits under C.C. Art. 2402 and therefore belonged to the community existing between the husband and wife. The administratrix argues that timber on the land and oil and gas under it are similar to each other, that the proceeds from the sale of timber is analogous to the proceeds received in connection with the mineral lease in Milling, and for that reason should be construed to be fruits within the contemplation of C.C. Art. 2402. The administratrix cites King v. Buffington, 240 La. 955, 126 So.2d 326 (1961), a Supreme Court decision holding that royalty, bonus and delay rentals proceeds from an oil, gas and mineral lease belonged to the naked owner of the property subject to the lease rather than to the usufructuary. In that case, the Milling rationale was urged upon the court on behalf of the usufructuary. The court there distinguished Milling on the grounds it involved an interpretation of what constituted community property under C.C. Art. 2402 and had no bearing on the issue presented in King v. Buffington i. e., the rights of the naked owner vs. the usufruc-tuary. Although the administratrix admits that the term fruits has been construed not to include timber in several other articles of the Code, she argues that King v. Buffington impliedly approved the Milling interpretation, i. e., that fruits included royalty, bonus and delay rentals proceeds within the contemplation of C.C. Art. 2402, and that this broad approach to the definition of fruits should be extended to include timber. The rationale of Milling is that oil, gas and mineral leases have been traditionally considered nothing more nor less under our law than ordinary leases of property and the consideration received from a mineral lease has been considered rent in the same sense as rent received from an ordinary lease. In Milling the following language is found with reference to the analogy between mineral leases and ordinary leases:

“ * * * [A]nd in a recent case we observed: ‘The rule is well established that mineral leases must be construed as leases, and that the codal provisions applicable to ordinary leases must be applied.’ Coyle v. North American Oil Consolidated, supra, 201 La. [99] at page 114, 9 So.2d [473] at page 478 — italics ours.
“Under this application of the law, it was inevitable that when the question arose as to the nature of royalty, it was held to be rent in the form of a portion of the produce of the land, Logan v. State Gravel Co., supra [158 La. 105, 103 So. 526], and ‘not the payment of a price for the oil or gas rights, as if they were sold’, Roberson v. Pioneer Gas Co., supra, 173 La. [313] at pages 319-320, 137 So. [46] at page 48; and the statement that the payment of royalty is the payment of rent appears so often in the jurisprudence of this State that the matter is no longer open to dispute. .
* * * * * *
“ * * * This being true, we know of no compelling, reason, nor has any been advanced, why the rentals paid in the form of royalty under a mineral lease on the separate property of the husband should form a part of his separate income, whereas the rentals paid in the form of shares of the crops growing on the same land would fall into the community . . . .” Id. page 682.

The Milling decision also recognized the concept that oil and gas are not owned until reduced to possession. It held that all the proceeds from the lease were rent and the payment of which entitled the lessee to seek and possess the oil and gas. The rent so received was designated a civil fruit, belonging to the community under C.C. Art. 2402. The fact that King v. Buffington refused to extend the lease-rent theory of Milling to entitle the usufructuary to the mineral lease proceeds, as a civil fruit, in no way supports the claim that timber is a fruit.

Standing timber is an immovable subject to separate ownership apart from ownership of the land. LSA-R.S. 9:1103. The sale of timber is not analogous to a lease or rent situation and therefore Milling is not authority for holding that timber is a fruit under C.C. Art. 2402.

In Harang v. Bowie Lumber Company, 145 La. 96, 81 So. 769 (1919) the court held that the word fruits in C.C. Art. 3453 (which article provides that the good faith possessor is not required to account to the owner for the fruits) did not include timber. The Harang decision involved a situation where the owner of the land claimed the good faith possessor owed the owner for the value of the timber cut. The good faith possessor urged that timber was included within the meaning of the word fruits under C.C. Art. 3453, and therefore he did not owe the owner therefor. The court stated that the framers of the Code could not have considered timber as included within the term fruits, and said:

“ * * * For it is not likely that the framers of the Code, even before the day of pull boats and skidders, would refer to the ox-hauling of timber, or floating it out of the swamps in high water, in such dainty language as ‘gathering the fruits of the land.’ ...” Id. p. 775.

The court reasoned that timber was not a fruit within the meaning of the usufructu-ary articles, pointing out that under the provisions of Code Art. 551 the usufructu-ary is authorized to cut trees from the land for his use only:

“ * * * On that subject, article 551 of the Civil Code (taking the place of articles 590 and 591 of the French Code) provides explicitly that an usufructuary ‘may cut trees on land of which he has the usufruct, * * * but for his use only . . . .” Id. at page 775.

In Steib v. Rathborne Land Company, Inc., 163 So.2d 429, (La.App. 4th Cir. 1964) writ refused June 8, 1964, the court stated:

“It may be appropriate here to observe that growing timber is not a ‘fruit’ which would belong to the purchaser under LSA —C.C. Article 2575.”

Likewise, in Delcambre v. Dubois, 263 So.2d 96 (La.App.3d Cir. 1972) the court stated once again with reference to Art. 2575 of the Louisiana Civil Code as follows:

“However he is not entitled to things, such as timber, which are not fruits.”

The administratrix has cited no decision holding timber to be a fruit. Based upon the foregoing authorities, we affirm the trial court’s holding that the proceeds from the sale of timber located on the husband’s separate property do not fall into the community under the provisions of C.C. Art. 2402.

The administratrix also complains that the heirs have not followed the necessary procedural prerequisites for the termination of the administration. She states that LSA-C.C.P. Arts. 3362 and 3002 require one of the petitioners to verify the allegations of the petition by affidavit, a procedure not followed here.

The requirement of the sworn verification of the essential allegations by one of the heirs in a petition for possession has for its purpose the creation of proof in the record of the allegations of the petition. The allegations were proven by the testimony in open court by three of the petitioners and this satisfies the verification requirement.

For the foregoing reasons we affirm the judgment of the trial court. The Succession of Floyd Delaney Rugg is to pay all costs of this appeal.

      . [The commentators and the jurisprudence establish that the word profits is an incorrect translation from the French and should have been fruits].

      . LSA-R.S. 31:5, 6.

      . C.C. Art. 2575 provides that the vendee in a sale with the right of redemption is entitled to the fruits.


author: MARVIN, Judge.

text:
    Richard INZER et ux., Plaintiffs-Appellants, v. Kelly Ray HOLLIS, Defendant-Appellee.
    No. 13053.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 9, 1977.
    Mecom, Scott & Woods by Leroy H. Scott, Jr., Shreveport, for plaintiff-appellants.
    Hal V. Lyons, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

In a possessory action, plaintiff was awarded damages against his defendant-neighbor who removed a fence plaintiff had erected between their adjoining lots during the course of a boundary dispute between them. Plaintiff appeals, contending that his attorney’s fees as an element of damage should have been awarded below and that the award was “grossly inadequate” for the intentional trespass.

The lower court awarded $250 for the cost of replacing the fence and $250 as damages for the disturbance of plaintiff’s possession and general mental anguish. We affirm.

As a general rule, attorney’s fees are not allowed a successful litigant in Louisiana except where authorized by statute or by contract. Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La.1976). The limited exceptions to this rule do not include a successful plaintiff in a possessory action claiming damages for trespass. Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959); Finuf v. Johnson, 226 So.2d 585 (La.App. 2d Cir. 1969).

Plaintiff contends that “some cases” [citing Vidrine v. Vidrine, 14 La.App. 484, 130 So. 244 (1930) and DeGraauw v. Eleazar, 24 So.2d 180 (La.App. 1st Cir. 1945)] have awarded attorney’s fees to a successful plaintiff in a possessory action. Because of later and more reasoned authority, cited supra, by our highest court, and by this court, we do not consider the cases relied on by plaintiff as controlling. See also 20 L.L.R. 389 and 34 T.L.R. 146 for comments on the subject.

Plaintiff claimed great mental anguish, loss of income as an insurance salesman, and expenses of hospitalizing his wife because of defendant’s actions during their dispute. The lower court said:

“I am not satisfied, as well, for the damages for loss of income, and I am going to deny those damages. These parties have obviously been in dispute over this tract for some period of time, and I cannot tell, and I am not satisfied that it is this dispute over this fence that has caused the Plaintiff the loss of income which he asserts. It is clear that he is an insurance salesman and obviously a good one and that his income did not rise as it has been. But apparently they have been arguing over this plot of ground and related matters to the plot of ground for some time, and the fence is only one of the issues involved.
“I further more note that an injunction was issued against the Defendant on the 30th of September, 1975 which was shortly after this fence was removed which should have gone a long way in solving any mental anguish at any rate over the removal of the fence and any problem caused in loss of income. * * *
“I think in addition, however, the Plaintiff is entitled to some damages for the disturbance of this possession in addition to the actual damages as far as the fence is concerned, for the general mental anguish which was involved in the problems. I don’t think that they are as extensive as his claim asserts, but I am going to award him $250.00 in that regard. * * *
. . But likewise, I am not satisfied by a preponderance of the evidence that it was this particular problem with this lot that caused Mrs. Inzer to have to go to the hospital, so I am going to deny that claim for medical expenses.” Record, pages 105-106.

In Turner v. Southern Excavation, Inc., 322 So.2d 326, 330 (La.App. 2d Cir. 1975), we recognized that no hard and fast rule exists for measuring damages in cases of intentional trespass where private property is destroyed. We stated that the trier of fact in such cases was vested with much discretion in assessing damages and that the award in each case should be approached so as to reach substantial justice between the parties. C.C. Art. 1934.

We find no abuse of discretion by the trial court in assessing damages. Indeed, the record supports the trial court’s determinations.

At appellant’s cost, judgment is

AFFIRMED.


author: SCHOTT, Judge.

text:
    Donald ABAUNZA et al. v. Catherine Mary Bolian, widow of Charles Joseph ROUSSOU and International Property Management, Inc.
    No. 7649.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Adams & Reese, William F. Ryan, Michael H. Bagot and Donald R. Abaunza, New Orleans, for plaintiffs-appellants.
    Polack, Rosenberg, Rittenberg & Endom, Leon H. Rittenberg, Jr., New Orleans, for defendant-appellee, International Property Management, Inc.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiffs have appealed from a dismissal of their action to enjoin defendant, International Property Management, Inc., from proceeding with construction work at 4139 St. Charles Avenue in New Orleans.

On April 14, 1975, the Department of Safety and Permits of the City of New Orleans, approved defendant’s application for and issued a building permit for the work. The application specified that repairs to the lounge at that address were to be made at a cost of $60,000. On May 6, 1975, the Department approved the plans submitted in connection with the building permit. On July 14 plaintiffs filed this suit for injunction on the ground that defendant’s repairs consisted of the erection, reconstruction, conversion and structural alteration of and increase in the cubical content and floor area of the premises in violation of the Comprehensive Zoning Ordinance of the City of New Orleans which prohibits such construction in a legal nonconforming use.

Defendant filed declinatory and peremptory exceptions on the ground that plaintiff’s right of action had perempted and prescribed, and such exceptions were maintained by the trial court following a trial thereon.

Pursuant to LSA-R.S. 33:4727, the City of New Orleans by Art. 13 of its Comprehensive Zoning Ordinance adopted April 23, 1970, established a Board of Zoning Adjustments. Section 4 of Article 13 provides that any party aggrieved by a decision of the Director of Safety and Permits may appeal to the Board and requires that such an appeal be taken “within a reasonable time, as provided by the rules of the Board The rules provide that such an appeal shall be taken within 45 days from the date of a determination by the Director. Section 16 of Article 13 provides that a person aggrieved by a decision of the Board “may present to the Civil District Court of the Parish of Orleans, within thirty (30) days after filing of the decision in the office of the Board, a writ of certiorari” to review the Board’s decision. This procedure is specifically authorized by R.S. 33:4727.

R.S. 9:5625 provides that all actions brought by any person to require enforcement and compliance with any zoning restriction and based upon the violation by any person of such restriction must be brought within two years from the date of the violation.

In maintaining the plea of prescription or preemption the trial judge held that plaintiffs were relegated to the procedure set out in the zoning ordinance pursuant to R.S. 33:4727 and rejected plaintiffs’ contention that the two year prescription set out in R.S. 9:5626 was applicable. We affirm.

Art. 201 of the New Orleans Building Code makes it unlawful to proceed with alterations or repairs without obtaining a building permit from the Director of Safety and Permits. This article provides that no permit will be granted except in conformity with other applicable ordinances. Article 12 of the Comprehensive Zoning Ordinance of the City of New Orleans contains restrictions on repairs for non-conforming uses including a prohibition against structural alterations, and a requirement that the Director at the time an application is filed for a use and occupancy certificate (in connection with a building permit) shall make a determination as to the existence of the non-conforming use and shall require the owner of the property to produce acceptable evidence attesting to the legal non-conforming status. Article 208 of the building code requires that the Director furnish to the applicant for the building permit a placard showing the permit number and requires that this placard “be conspicuously exposed on the building site in front of said building.”

The placard was introduced in evidence at the trial of the exceptions and it shows that the work consists of non-structural repairs to existing lounge as per plan and that the estimated cost of the work is $60,-000. Other evidence consisted of the testimony of defendant’s agent who described the work as to include the removal of nonsupporting partitions and the removal and the rebuilding of the rear section of the building which was unsafe. He said that the interior portion of the building would be smaller, not larger, but that a patio would be added in the area where air conditioning and mechanical equipment were formerly housed. He also testified that the work would cost approximately $60,000.

Plaintiffs did not show that the construction was in violation of the ordinance with respect to repairs and renovations on buildings which are legal non-conforming uses. Article 14, Section 2, Definition 105, of the Zoning Ordinance defines structural alterations as changes in the supporting members of a building such as bearing walls or partitions and it specifically excludes such repairs as may be required by an official governmental agency for the safety of the building. The scope of the work as described by defendant’s agent was not included in this definition. Plaintiffs did establish that the square footage of the lounge would be increased but this was explained as the result of the removal of non-structural partitions, change in the location of mechanical equipment and the use of areas previously not used. Plaintiffs rely on Section 3 of Article 12 of the zoning ordinance which prohibits an increase in the square footage of a non-conforming area but this section applies only to the situation where a building having a non-conforming use is destroyed and rebuilt under the ordinance. The limitation has no application to this case.

Plaintiffs contend that the two year statute of limitation provided by R.S. 9:5625 cannot be modified or contravened by a city ordinance. But the ordinance establishing the 45-day limit for appeals to the Board of Zoning Adjustments is specifically authorized by R.S. 33:4727. We see no conflict between the two statutes. Under R.S. 33:4727 the Board has the power:

“1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of R.S. 33:4721 through R.S. 33:4729, or of any ordinance adopted pursuant thereto.
“2. To hear and decide all matters referred to it or upon which it is required to pass under the ordinance.”

Article 13, Section 8, of the Comprehensive Zoning Ordinance provides that “The Board shall hear and decide appeals when it is alleged there is error in any order, requirement, decision, or determination made by the Director of Safety and Permits, in the enforcement of this ordinance.”

R.S. 9:5625 provides a plaintiff with an injunctive remedy in the event of a violation of the law by a defendant.

Plaintiffs have not proved that the law was violated by defendant or the City in connection with the application. The evidence shows that all of the requirements were complied with and that the defendant had the right to seek and the City the ministerial duty to issue a permit for the work. Plaintiffs alleged in their petition that defendant’s work was in violation of the zoning ordinance as to a legal non-conforming use, and had they been able to prove these allegations injunctive relief would have been available, but the evidence shows otherwise.

Furthermore, if plaintiff had shown that defendant was engaged in work on the premises beyond the scope of the permit which had been issued to it, they would have been entitled to injunctive relief because this would have constituted a violation. The evidence did not show that defendant was performing any work beyond the permit which was issued in compliance with the law.

Finally, plaintiffs contend that their constitutional rights were violated because they had no notice of the repairs in time to file an appeal to the Board of Zoning Adjustments within the 45-day limitation, commencing when the work in fact began. The plaintiffs offered no evidence to prove this allegation. Defendant’s witness testified that as of the time of the trial, on July 21 to 23, 1975, $5,000 had already been spent on the project and some of the work had been completed. We must presume in the absence of a showing to the contrary that defendant complied with Article 208 of the Building Code requiring that the building permit placard be posted outside of the building constituting a notice to plaintiffs who were residents of the neighborhood. Had plaintiffs proved that the work had taken place but that defendant failed to post the placard as required they would have established a violation of the ordinance by defendant and the applicability of R.S. 9:5625. They failed to produce any such evidence.

We have held that the trial judge correctly maintained defendant’s exceptions based upon the evidence presented at the trial. Our opinion should not be construed to prevent plaintiffs or anyone else from obtaining injunctive relief under R.S. 9:5625 in the event that a violation has occurred or will occur in the future.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: STOULIG, Judge.

text:
    The RODRIGUE COMPANY, INC. v. Bernice GILMORE.
    No. 7650.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Hammett, Leake, Hammett, Hulse & Nelson, Michael E. Wanek, New Orleans, for plaintiff-appellant.
    Gilbert P. Cohen, Gretna, for defendant-appellee.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiff, The Rodrigue Company, Inc., a creditor of Zenith, Inc., filed suit on April 3, 1975, against Bernice Gilmore, individually, its president, for a $29,777.18 corporate debt. Zenith, Inc., had been previously placed in involuntary bankruptcy on December 12, 1974. Plaintiff alleged the defendant drew a salary of $2,000 monthly plus liberal fringe benefits from Zenith, Inc., without performing services to justify this amount, which constituted an unfair distribution of assets prejudicial to creditors. Defendant’s exception of no right of action was maintained. Plaintiff has appealed.

Appellant argues it is entitled to proceed directly against Mrs. Gilmore because (1) R.S. 12:92(D) imposes individual liability on a shareholder who knowingly votes for an unauthorized distribution of corporate assets; and (2) R.S. 12:93(D) makes the recipient shareholder of an unlawful distribution individually liable to a creditor who has an unsatisfied claim against the corporation.

Had not plaintiff and other creditors forced Zenith, Inc., into bankruptcy, plaintiff’s right to proceed directly against Mrs. Gilmore would be unquestionable. However, the bankruptcy law preempts this individual right of action by a single creditor against an officer or shareholder individually of the defunct corporation.

When the right of the individual creditor conflicts with the obligation of the trustee appointed to administer the bankrupt estate, the individual right of action must yield. 11 U.S.C. § 75 obligates the trustee to collect and administer the corporate assets, which become the common pledge of the creditors, and ultimately distribute them in accordance with law. To accomplish this end, title to the bankrupt’s estate vests in the trustee from the time the bankruptcy is filed. 11 U.S.C. § 110. Thereafter, the trustee alone can act to recover the assets of the bankrupt. Graybar Electric Company v. Doley, 273 F.2d 284 (4th Cir. 1959); Burkett v. Shell Oil Company, 448 F.2d 59 (5th Cir. 1971). At this point an individual creditor cannot bypass the trustee by filing suit directly against a potential debtor of the corporate bankrupt.

To keep this action alive, appellant asks that we remand this matter to permit the trustee in bankruptcy to be substituted as a party plaintiff based on an order of the bankruptcy court that allegedly instructs the trustee to file a new suit or to have himself substituted as party plaintiff in this one. In addition, it allegedly decrees the state court to be the proper forum to bring this action.

The federal order alluded to by appellant is not in the record nor is there any motion to substitute the trustee. The scope of our review is limited to the record, specifically to the propriety of a judgment dismissing plaintiff’s suit on an exception of no right of action. In this same vein we note appellant’s criticism of the district court for not passing on the issue of whether the state or the federal court was the proper forum for an action against Mrs. Gilmore is meritless. Once having decided appellant could not bring the action, any further determination would have been advisory.

In view of our conclusion plaintiff has no right of action, we need not consider the question of either state or federal jurisdiction.

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

AFFIRMED.


text:
    Alan Lee BOWIE v. DEPARTMENT OF POLICE.
    No. 7671.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Sutterfield & Vickery, New Orleans (James R. Sutterfield) New Orleans, for appellant.
    Michael A. Starks, Asst. City Atty., Philip S. Brooks, City Atty., for appellee.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

This is an appeal from a decision of the City of New Orleans Civil Service Commission upholding the dismissal of appellant as a police officer.

The Commission found that 1) appellant had traces of marijuana in his possession at his home and rejected his explanation that these items had come into his possession accidentally months before and thereafter he forgot about them; and 2) appellant along with others had smoked marijuana at a party where two juvenile girls were present. As to the latter, the Commission noted that the evidence was insufficient to support a criminal conviction.

We have reviewed the record, including statements taken while the matter was being investigated by the Police Department, and evidence taken before a hearing examiner, including the testimony of appellant and the two juvenile girls. This evidence supports the findings of fact made by the Commission.

On appeal, appellant attacks the regulations under which he was dismissed as unconstitutional, and he maintains that the Commission erred in sustaining his dismissal without making an independent finding of fact that he did commit the offense for which he was dismissed.

Appellant was disciplined under five articles of the Police Department regulations. Article 27 requires that members obey the laws of the State of Louisiana, Article 49 prohibits members from the use or possession of drugs as defined by the criminal laws of the State of Louisiana, Article 53 defines neglect of duty as failure to comply with instructions from an authoritative source and failing to take appropriate police action, Article 54 prohibits a member from disregarding or violating the rules of the Department and from failing to follow instructions from authoritative source, and Article 29 mandates truthfulness on the part of members. Appellant’s arguments that these regulations are unconstitutionally vague or overbroad are answered in Arnett v. Kennedy, 1974, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15. See MacCracken v. Department of Police, 337 So.2d 595 (La.App., 4th Cir. 1976). In any event, the real basis for appellant’s discharge was his violation of Articles 27 and 49, the unconstitutionality of which can hardly be assailed on a reasonable basis.

This case is much the same as Knight v. New Orleans Police Department, 302 So.2d 396 (La.App., 4th Cir. 1974). Although the Commission made the statement that the evidence might be insufficient to support a criminal prosecution it did make an independent finding based on sufficient evidence to support appellant’s dismissal for engaging in unlawful activities. The case is distinguishable from Paternostro v. New Orleans Department, 146 So.2d 812 (La. App., 4th Cir. 1962) on the same basis as the Knight case was distinguished.

The judgment appealed from is affirmed.

AFFIRMED.


author: SAMUEL, Judge.

text:
    Paul GUILLORY v. Thelma Mitchell, wife of Paul GUILLORY.
    No. 7675.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.

      Edward J. Guise, III and William W. Rosen, New Orleans, for defendant-appellant.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   SAMUEL, Judge.

This appeal, by the wife in a divorce suit, is limited to a requested increase in the amount awarded as a fee for her attorney. The judgment appealed from dismissed the husband’s suit for a divorce, awarded the wife a divorce on her reconventional demand, and awarded the attorneys for both litigants $500 each out of the assets of the community.

Apparently due to a loss of notes by the court reporter, the record before us is incomplete. It does not contain a transcript of the testimony taken at the trial on the merits, nor does it contain any information relative to the community or the value thereof. Insofar as the same is pertinent to the issue presented, the record contains only the pleadings, the judgments, and the testimony of appellant’s attorney regarding his fee as that testimony was reconstructed by the reporter from a statement made to him by that attorney. There is no objection to the reconstructed testimony and the plaintiff husband has made no appearance in this court.

From the pleadings and judgments, we are able to ascertain that appellant’s attorney filed an answer and a reconventional demand, obtained an injunction restraining the husband from disposing of community property, obtained an order permitting the wife to proceed in forma pauperis, requested a subpoena duces tecum for various documents to determine the assets and income of the husband, prepared a rule to show cause to fix permanent alimony, prepared a trial memorandum at the request of the court, and was present at the trial of the matter on the merits. He also arranged a consent judgment with the husband’s attorney whereby the wife received alimony pen-dente lite in the amount of $55 per week, a $25 per month payment on her doctor’s bill, and continued payments on a note secured by mortgage on her New Orleans residence.

The reconstructed testimony of appellant’s attorney establishes that, not including trial time, he spent twenty-three hours, fifty minutes on this case, and his usual fee at that time was $50 per hour. The record contains no showing of the time spent at the trial.

Since the case of Gosserand v. Monteleone, our jurisprudence consistently has been that attorney’s fees incurred by the wife in prosecuting a suit for separation from bed and board or divorce is an obligation of the community which, whether she is successful or not, must be paid out of the community assets on a quantum meruit basis; but if there are no community assets, there is no liability on the part of the husband separately for such fees. Insofar as the community is concerned, as the employment of counsel by the wife is a quasi contract (Civil Code Arts. 2292, 2293 and 2294), under Civil Code Art. 1934(3) the trial judge is vested with “much discretion” in determining what is a proper fee in quantum meruit and his determination ordinarily will not be disturbed.

While we agree that the number of hours spend by attorney is a factor to be considered, this alone does not determine the fee. The factors most often considered in a determination of the fee to be awarded an attorney on the basis of quantum meruit are: (1) the ultimate result obtained; (2) responsibility incurred; (3) the importance of the litigation; (4) the amount involved; (5) the extent and character of the labor performed; (6) the legal knowledge and attainment and skill of the attorney; (7) the number of appearances made; (8) the intricacies of the facts and law involved; (9) the diligence and skill of counsel; (10) the court’s own knowledge; and (11) the ability of the party liable to pay.

In the present case, based solely on what the incomplete record does show, we are satisfied the fee of appellant’s attorney clearly must be increased. While it is true that one of the important factors, the ability of the party liable to pay (here the community), cannot be considered because we have no information relative to the value of the community, the importance of that factor is substantially mitigated by the fact that the community’s liability is limited to the amount of the value of its assets. On a quantum meruit basis and on the showing made by the record before us, we are of the opinion the fee of the wife’s attorney should be increased from $500 to $1,250.

For the reasons assigned, the judgment appealed from is amended only insofar as to increase the award for an attorney’s fee for the wife’s attorney, William W. Rosen, from the amount of $500 to the amount of $1,250, which fee is payable by the community of acquets and gains formerly existing between the litigants.

AMENDED.

      . 164 La. 397, 113 So. 889.

      . Succession of Butler, La., 294 So.2d 512; Tanner v. Tanner, 229 La. 399, 86 So.2d 80.

      . In pertinent part LSA-C.C. Art. 1934(3) reads:
      “In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury,”

      . Succession of Butler, supra, footnote 2.

      . See Smith v. West Side Transit Line, Inc., La.App., 313 So.2d 371.

      . Contingent Fee Contracts, 24 La.Bar Journal 107, 114, (Sept., 1976), and cases cited therein.


author: BOUTALL, Judge.

text:
    Ursula Patorno, wife of Anthony J. SCHILLACI v. Anthony J. SCHILLACI.
    No. 7680.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Charles G. Merritt, New Orleans, for Anthony J. Schillaci, defendant-appellee.
    Philip R. Riegel, Jr., Sydney J. Parlongue, New Orleans, for Ursula Patorno Schillaci, plaintiff-appellant.
    Before REDMANN, GULOTTA and BOUTALL, JJ.
   BOUTALL, Judge.

Plaintiff, Ursula Patorno Schillaci, appeals a judgment that maintained the defendant-husband’s exception of no cause of action as to plaintiff’s claim for permanent alimony after divorce based upon two years separation.

Plaintiff filed suit for divorce based upon two years separation in January, 1975, praying that she be found free from fault as to entitle her to alimony, per L.C.C. 160. The defendant filed an exception of no cause of action regarding the issue of alimony after divorce, directing the court’s attention to the fact that the plaintiff had previously been found at fault in an earlier separation proceeding and thus she was barred from relitigating the issue in a subsequent divorce action. Fulmer v. Fulmer, La.S.Ct., 301 So.2d 622 (1974). The exception was maintained, but the plaintiff was granted a final divorce based upon La.R.S. 9:302.

Plaintiff-appellant Patorno had begun this legal bout with the filing of a suit for judicial separation in 1974, alleging cruelty of her husband. The defendant reconvened, also seeking separation based upon cruelty. Judicial separation was denied, the trial court having found that there was mutual fault, and reasoning that it was impossible to determine who first acted in a fashion to draw a like response, and that neither party made an effort to cooperate to attempt to straighten out their problems. Plaintiff appealed that judgment, and this court, Schillaci v. Schillaci, La.App., 310 So.2d 179 (1975), affirmed, holding that both parties had been at fault, both had equally violated their marital obligations, and therefore, relief was denied. The Louisiana Supreme Court denied writs, 313 So.2d 599.

The issue raised on this appeal is whether the previous judgment of mutual fault is sufficient to estop the plaintiff from reliti-gating the issue of fault, in light of the jurisprudence that holds that fault determination in a separation proceeding bars relit-igation of fault in a subsequent divorce proceeding, when such need be determined for the purpose of awarding alimony post-divorce, and Civil Code Article 160. Nethkin v. Nethkin, La.S.Ct., 307 So.2d 563 (1975), Fulmer (supra). Further, does this line of jurisprudence apply when alimony is sought after a suit for divorce based upon two years separation?

We think the answer to that question is yes, because of the wording of Article 160 and the doctrine of judicial estoppel, as set out in Fulmer (supra). Article 160 (as amended Acts 1964, No. 48 § 1) says “When the wife has not been at fault . the court may allow her, . . . alimony.” In the case here on appeal, the plaintiff had been guilty of fault, serious fault to the point of contributing to the breakup of the marriage. The circumstances and the facts of the earlier Schillaci suit are the same as those here on appeal. The plaintiff’s petition in this suit makes no allegations of fault-determining facts beyond those already ruled upon. The plaintiff was adjudged to be at fault in the separation suit, and that judgment has become definitive and is the law between the parties. Absent new allegations that her fault is now removed in some fashion, that fault adjudication bars her from relitigating the issue.

As the court said in Fulmer, thus modifying Lloveras v. Reichert, 197 La. 49, 200 So. 817 (1941) at page 629:

As to the pre-separation fault, it should constitute a conclusive determination which equally bars re-litigation of the issue of fault, when alimony is sought under Article 160, whether the divorce is based either on La.R.S. 9:301 or 9:302.
. for the sole effect of the separation judgment is a conclusive adjudication as to which spouse’s pre-separation fault primarily caused the separation.’ ”

The court in Fulmer (supra) also gave effect to the doctrine of judicial estoppel when it explained the legislative choice of barring relitigation based on judicial economy and consistency by having the separation causing fault determined once in the separation proceeding itself.

Plaintiff has certainly had her day in court on the issue of her fault in the marriage dissolution; the issue having been through the entire appellate review of this state. Accordingly, she should not be allowed to relitigate the fault issue when she has failed to make any new allegations upon which relief could be granted.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Irene McDaniel VERDUN v. Stanley PLAISANCE and Transportation Insurance Co.
    No. 7681.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.

      Exnicios & Nungesser, Samuel Richard Exnicios, Roger R. Roy, New Orleans, for plaintiff-appellant.
    Deutsch, Kerrigan & Stiles, Russell L. Dornier, New Orleans, for defendants-ap-pellees.
    Before REDMANN, GULOTTA and BOUTALL, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment maintaining a plea of prescription. We affirm.

This suit grows out of an automobile accident which occurred in Jefferson Parish on December 6,1971. In her action for personal injuries, plaintiff-guest passenger, a domiciliary of St. Mary Parish, named five parties as defendants: 1) the host-driver (who was domiciled in Texas); 2) the owner of the vehicle in which plaintiff was riding (a domiciliary of St. Mary Parish); 3) the owner-driver of the other automobile involved in the accident (a domiciliary of Jefferson Parish); 4) and 5) the insurers of the owners of the vehicles. Suit was filed on December 4, 1972, in St. Mary Parish. Defendants were served after December 6, 1972.

Venue in St. Mary Parish was based on the solidary obligation of the defendants. In her petition, plaintiff asserted that the owner of the vehicle in which she was riding was liable under the theory of “respon-deat superior”, but she did not allege any facts to justify the assertion — such as the existence of an employer-employee or a principal-agent relationship between the owner and the host-driver. Accordingly, an exception of no cause of action filed by the St. Mary resident-owner of the vehicle was maintained by the trial judge. No appeal was taken from this judgment. The decli-natory exception of improper venue was maintained and the matter was then transferred to Jefferson Parish. All remaining defendants filed, in Jefferson Parish, pleas of prescription.

According to defendants, the suit is prescribed because it was filed in a court of improper venue and service of process was not effected until after the tolling of the prescriptive period. See LSA-R.S. 9:5801. We agree.

We reject plaintiff’s contention that venue in St. Mary Parish obtained against the nonresident defendants remains proper although the maintained exception of no cause of action dismissed the resident defendant. We do not agree with plaintiff’s argument that a dismissal on an exception of no cause of action is the same as a dismissal after a trial on the merits (for venue purposes) and venue, once obtained in St. Mary Parish, remains there. See LSA-C.C.P. art. 73, supra. Venue over the nonresident defendants was sought to be conferred by alleging a solidary obligation with the resident defendant. When the claim against the resident defendant was dismissed on an exception, no basis for venue in St. Mary Parish remained. See Tate v. Dupuis, 195 So. 810, 818 (La.App. 1st Cir. 1940), a case dismissing a suit for want of jurisdiction in such a situation. See also Comment (b) following LSA-C.C.P. art. 73, and Gordon v. Bates-Crumley Chevrolet Co., 182 La. 795, 162 So. 624 (1935). Though the granting of the exception is a final judgment for the purposes of appeal, it cannot be considered as a dismissal “after a trial on the merits” within the meaning of LSA-C. C.P. art. 73.

Plaintiff’s argument, even if meritorious (though we find it without merit), is not timely urged. No appeal was taken from the judgment of the St. Mary Parish Court maintaining the exception of no cause of action and the exception of improper venue. Indeed, plaintiff filed her own “Motion and Order to Transfer” in which she sought to have the action transferred to Jefferson Parish.

Finally, we find no merit to plaintiff’s interpretation of Foster v. Breaux, 263 La. 1112, 270 So.2d 526 (1972), which plaintiff contends is authority for the proposition that the filing of a suit, in a court of improper venue, interrupts prescription if the prescription plea is filed in a court of proper venue. According to plaintiff, the filing of the suit in St. Mary Parish interrupted prescription because Jefferson Parish was the court of proper venue at the time the plea of prescription was filed there.

The Breaux ease, supra, relied on by plaintiff, is inapposite to our case. In Breaux, the court concluded that the exception of venue had been waived, and, therefore, the court in which the suit was filed was one of proper venue at the time that defendant filed his plea of prescription. Unlike Breaux, in our case, the exception of venue was maintained and the matter was transferred to the court of proper venue where the pleas of prescription were filed. Also, in the instant case, St. Mary Parish was not the court of proper venue and the pleas of prescription were maintained, whereas in the Breaux case, the court was ultimately determined to be one of proper venue and the plea of prescription was overruled.

Under the circumstances, we conclude the pleas of prescription were properly raised in Jefferson Parish and properly maintained. The judgment is affirmed.

AFFIRMED.

      . LSA-C.C.P. art. 73 reads as follows:
      Art. 73. Action against joint or solidary obli-gors
      “An action against joint or solidary obligors may be brought in any parish of proper venue, under Article 42, as to any obligor who is made a defendant.
      “If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, the venue shall remain proper as to the other defendants, unless the joinder was made for the sole purpose of establishing venue as to the other defendants.”

      . LSA-R.S. 9:5801 reads as follows:
      § 5801. Interruption of prescription by filing of suit, service of process
      “All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.”

      . As to one defendant.

      . See Mayeux v. Martin, 247 So.2d 198 (La. App.3d Cir. 1971). See also the dissent in Foster v. Breaux, supra, and “The Work of the Louisiana Appellate Courts for the 1972-1973 Term: Procedure”, 34 La.L.R. 379, 391.


author: MORIAL, Judge.

text:
    MANAGEMENT RECRUITERS OF NEW ORLEANS, INC. v. Louis B. BROWN and the American Automobile Association, Inc.
    No. 7682.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.

      Christopher T. Grace, Jr., New Orleans, for plaintiff-appellant.
    Frank J. Varela, New Orleans, for defendants-appellees.
    Before LEMMON, MORIAL and BEER, JJ.
   MORIAL, Judge.

Management Recruiters of New Orleans, Inc., (Management) sued Louis B. Brown (Brown) and The American Automobile Association (AAA) in contract for an employment placement fee in the amount of $1,950.00 plus 25% attorney’s fees and costs. AAA filed an answer and third party demand for indemnification against Brown. Brown answered and filed a third party demand for indemnification against AAA. After a trial on the merits the district court entered judgment in favor of Management against Brown in the amount of $76.37 plus legal interest and dismissed Management’s suit against AAA and the third party demands of AAA and Brown against each other. Management appeals and AAA appeals the dismissal of its third party demand against Brown. Brown does not appeal.

Management and Brown entered into an agreement whereby Management was to procure employment for Brown for a fee. Through an advertisement which appeared in the newspapers on a weekend sometime in the middle of April or May 1974, Management learned that AAA was interested in employing a sales representative. Management contacted AAA about an interview with Brown. On May 28,1974, Brown entered into a Membership Representative’s Agreement of employment with AAA which provided for the payment of full compensation for his services on a Commission basis. Brown disregarded several requests of Management for payment of its fee. He subsequently received a letter from Management’s counsel dated June 26, 1974 which stated:

“ * * * Although it was the understanding of my client that your employer, American Automobile Association, was to pay the fee for your placement, since they have refused to pay the fees, we are now compelled to make demand upon you for the payment of a fee in the amount of $1,950.00 or to resign your job within five days of this notice, under the provisions of paragraph 14 of your agreement with my client.”

Brown resigned from his employment on July 3, 1974.

The issues before the court are: (1) whether or not AAA contracted with Management to pay a fee in connection with the hiring of Brown; (2) whether or not Brown was employed as Sales Manager or a commissioned representative; and (3) whether or not the judgment in favor of Management against Brown is in the correct amount under the terms of the agreement between them.

Sometime prior to the transaction involved herein AAA entered into a Employer-Paid Fee Policy with Management. This agreement which states “effective April 1, 1972”, contains no time duration nor specific job for which AAA agreed to pay Management a placement fee. On the basis of the testimony of a former Management employee that the agreement was for the limited purpose of placement of a public affairs director with AAA, the district court correctly concluded that this agreement had no significance to this case. With this determination we must agree.

On the Monday following the appearance of the newspaper advertisement, Mr. Harrison of Management initiated a telephone conversation with Mr. Floyd, Director of Sales for AAA concerning the advertisement. The testimony of Floyd and Harrison of their telephone conversation leads us to the inescapable conclusion that AAA agreed to the payment of a placement fee if a sales manager were employed through the procurement of Management.

Was Brown employed as a sales manager? We think not. Brown signed a Membership Representative’s Agreement which provided for full compensation on a commission basis. The nature of Brown’s compensation is evidenced by Commission Statements showing earnings from commissions only in the total amount of $763.70 for the period of his employment. AAA’s sales managers were compensated on a salary basis plus overrides on sales of membership representatives. Though AAA admitted that Brown was being given managerial training for purposes of evaluating his ability to handle a managerial position in the future that alone could not change his job description from that designated in his employment agreement. Furthermore, Floyd informed Management that Brown did not have managerial qualifications and AAA would not employ him as a sales manager. There is no evidence of a modification of Brown’s employment agreement and he is bound by its terms and its description of his employment. Brown entered into employment with AAA as membership representative and remained so until he voluntarily resigned.

In spite of Management’s letter of June 26, 1974 to Brown, we are of the opinion that the district court erred when it concluded that Brown resigned “ * * * for reasons beyond my [his] control * *” and improperly invoked that part of paragraph 7 in rendering judgment against Brown in the amount of $76.37 based upon 10% of his total commissions of $763.70. Obviously, after receiving Management’s letter Brown thought he had an employer fee paid job and resigned to avoid any possible obligation to pay Management’s fee for his placement pursuant to paragraph 14. Paragraph 14 becomes operative only if an employer fee paid job is accepted and the employer fails to pay the fee. Such condition did not exist under the circumstances of this case. As hereinabove concluded, Brown’s employment was not an employer fee paid job and he could not have been held for a fee under the conditions of paragraph 14. Therefore, we must conclude that Brown’s termination of his employment by resignation was not beyond his control. Accordingly, since Brown quit his Management procured non-employer fee paid job within less than 90 days, he is obligated to pay a fee calculated on the basis of the fee schedule of paragraph 7. See H. B. Dawson’s, Inc. v. Cherney, 256 So.2d 294 (La.App. 1 Cir. 1974). Brown’s gross earnings totalled $763.70 on which he must pay a fee of 50% amounting to $381.85 plus eight (8%) percent interest as provided for in paragraph 5 and stipulated attorney’s fees of twenty-five (25%) percent.

For the foregoing reasons the judgment of the district court is amended, and it is ordered, adjudged and decreed that there be judgment in favor of Management Recruiters of New Orleans, Inc., against the defendant Louis B. Brown in the full sum of $381.85 together with eight (8%) percent interest thereon and attorney’s fees of twenty-five (25%) percent and in all other respects the judgment of the district court is affirmed.

AMENDED IN PART

AFFIRMED IN PART.

      . The pertinent parts of the agreement provide as follows:
      4. Schedule of fees: (rate of Professional Service Charges based on projected annual salary at time of acceptance) THE METHOD OF COMPUTING MY ANNUAL COMPENSATION SHALL BE 52 TIMES MY WEEKLY COMPENSATION, OR 12 TIMES MY MONTHLY COMPENSATION, OR AS OUTLINED IN SECTION 9 OF THIS CONTRACT.

      ******
      5. Your fee for professional services is earned when I accept employment and is payable net within 10 days after acceptance of position; unless otherwise negotiated at the time of acceptance. Any extension of these terms will bear 8% simple interest.
      * * * * 4! *
      7. Temporary employment means employment which last less then 90 days. If my job becomes temporary for reasons beyond my control, I agree to pay you 10% of my gross earnings. Should I quit my job, or should my job become temporary due to other reasons within my control, then I agree to pay 50% of my gross earnings, or the fee calculated in paragraph 4, whichever is the smaller of the two.

      14. If I accept a full, or partly employer fee paid job and the employer subsequently fails to pay the fee due, I have the option to resign the job within five days of written notice at no cost to me, or I may accept the job and pay the appropriate fee provided in paragraph 4 of this contract.

      18. I hereby stipulate and agree to pay twenty-five (25%) percent over and above my fee, as attorney’s fee, plus all costs of collection including court costs, should it become necessary to obtain counsel or collection services, or resort to court action to collect my fee.

      . The advertisement stated:
      SALES REPRESENTATIVE AMERICAN
      AUTOMOBILE ASSOCIATION
      Sales Management Oppty.
      Career Opportunity
      Salary Guaranteed Paid Vacation
      Free Hospitalization
      Free Life Insurance
      Other fringe Benefits
      No experience necessary. We will train you to enter a profitable career with the American Automobile Association $800 to $1000 a month possible if you are willing, like people and have a serviceable automobile. Prefer mature person. Sales or telephone experience helpful, but not necessary.
      Call MR. FLOYD 837 — 4678
      An Equal Opportunity Employer

      . Pertinent provision of the Membership Representative’s Agreement states:
      ***** *
      “THE ASSOCIATION AGREES:

      “(2A) To pay semi-monthly, as full compensation for the services of the Representative, membership commissions on dues money collected during the Representative’s terms of employment in accordance with the established rates of the Association.
      * *****
      “THE REPRESENTATIVE AGREES:
      “(3C) To accept as full compensation for his services, membership commissions to be paid by the Association in accordance with the established rate paid by the Association at the time the money is received by him. When employment is terminated, no further commissions will be paid on subsequent payments received by the Association on previous sales made by the Representative. No commission will be paid to the Representative on either new or renewal membership after his employment is terminated.”


author: MORIAL, Judge. LEMMON, Judge

text:
    Creighton Lee PETRICH v. DEPARTMENT OF SAFETY AND PERMITS.
    No. 7687.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.

      G. Patrick Hand, Jr., Robert W. Drouant, New Orleans, for appellant.
    Michael A. Starks, Asst. City Atty., Philip S. Brooks, City Atty., for appellee.
    Before LEMMON, MORIAL and BEER, JJ.
   MORIAL, Judge.

This is an appeal by Creighton Lee Pet-rich from a ruling of the Civil Service Commission of the City of New Orleans affirming his suspension and dismissal as a Housing Inspector by the appointing authority, Department of Safety and Permits.

Appellant was employed by the Department of Safety and Permits, Division of Housing Improvement on December 1,1971. On August 16, 1973 he was notified by letter from Edward C. Kurtz, Director, Department of Safety and Permits, of his dismissal for the following reasons:

“This action is being taken due to your incompetence in carrying out your duties as a housing inspector. You have been previously disciplined for making inaccurate reports in the following cases:
“Letter of May 7, 1973, concerning 2401-03 Constance Street, issued by your supervisor, Mr. Thomas V. Tufaro. “Letter of June 6, 1973, concerning 2007 Peniston Street, issued by your supervisor, Mr. Thomas V. Tufaro.
“The above cases and the present case concerning inspections made at 2114-16 and 2118-20 Gravier Street of which you were advised by your supervisor on August 9, 1973, are sufficient reasons for dismissal.”

After a hearing the Civil Service Commission of the City of New Orleans made the following findings of fact:

“1. The appellant improperly inspected 2007 Peniston Street in that on a ‘new initial’ inspection he conducted the inspection without gaining access.
“2. The appellant erred in listing 2114-16 and 2118-20 Gravier Street as demolished when these properties were, in fact, standing.
“3. The appellant did not carry his burden of proof relative to whether his signing of the grievance against his superiors had any bearing on his discipline.
“4. The appellant did not carry the burden of proof relative to the question of whether the Appointing Authority abused its discretion in setting the degree of discipline.
“5. It was reasonable for the Appointing Authority to terminate the appellant for his errors.”

As error the appellant contends: (1) that the Commission erred as a matter of law, in not reversing the action of the appointing authority which had suspended and then dismissed him from its employ; (2) there is total lack of evidence to warrant the Commission’s sustaining his termination by the appointing authority; and (3) his constitutional rights were violated by imposing upon him the burden of proof and by denying him equal protection of the law.

We dispose of appellant’s contentions in inverse order. The alleged causes for appellant’s dismissal and his appeal to the Commission were prior to the effective date of the Louisiana Constitution of 1974. Article 14, Sec. 23 of the 1974 Louisiana Constitution prohibits the retroactive effect of its provisions on rights existing on its effective date. See Paul v. Edwards, 323 So.2d 488 (La.App. 1 Cir. 1975). Accordingly, the review of this matter is governed by the provisions of the Louisiana Constitution of 1921. The Commission, therefore, was correct in placing the burden of proof on the appellant. See LSA-Const.1921, Art. 14, Sec. 15(N)(1).

The Commission made no factual finding referral to appellant’s April 1973 inspection of the Annunciation Street property in lieu of an inspection of the property assigned to him for inspection at 2401-03 Constance Street. Therefore, we refrain from a consideration of that incident for which appellant was reprimanded by his supervisor in writing on May 7, 1973.

In May 1973 appellant was issued written instructions to make an inspection of 2007 Peniston Street to determine if a new initial inspection of the premises was warranted. Plaintiff noted on his report that he did not gain access to the building; however, he did indicate-in his report that a new initial was not warranted. Appellant received a letter on June 7,1973 suspending him for one day without pay for indicating an inspection was unwarranted without gaining access into the building. Appellant appealed this suspension and it was at issue before the Commission.

In October 1972 appellant was assigned to make inspections at 2114-2116 Gravier and 2118-2120 Gravier. In his report, appellant indicated that the buildings at these addresses had been demolished. A subsequent inspection in July 1973 by another inspector showed that the buildings had not been demolished. Apparently, appellant had inspected buildings on the wrong side of the street. Appellant was given notice of this error on August 9, 1973.

We deem it unnecessary to recite the evidence taken in this case; suffice it to say that there is evidence to support the findings of fact of the Commission and this is not a case where there is no evidence to support the charges. The findings of fact of the Commission are binding on us when supported by any evidence, and we may not substitute our conclusion on the facts for that of the Commission. See LSA-Const. 1921, Art. 14, Sec. 15(0)(1); Brickman v. Aviation Board, 236 La. 143, 107 So.2d 422 (1958); Mauboules v. Louisiana Wild Life & Fisheries Com’n, 312 So.2d 899 (La.App. 1 Cir. 1975).

In this case the Commission determined that on its findings of fact it was reasonable for appellant’s employment to be terminated by the appointing authority. Disciplinary action against a classified employee must be based on legal cause. Our Supreme Court has jurisprudentially defined legal cause for disciplinary action against a classified employee as that conduct which impairs the efficiency of the public service and which bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged. See Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962). Absent such a relationship removal would be arbitrary and subject to annulment as a matter of law by this court. Brickman, supra.

Appellant failed to inspect the property assigned for inspection. By his errors, certain defects would have gone unfounded resulting in the possible perpetuation of hazardous conditions. Therefore, his conduct did detrimentally effect the public service provided by the appointing authority. See Suire v. La. State Board of Cosmetology, 224 So.2d 7 (La.App. 1 Cir. 1969). Whether or not the discipline employed was too harsh was a question of fact to be determined by the Commission. We are not permitted to disturb those findings unless there is no evidence that the conduct of the employee was prejudicial to the operation of the public service. See Morris v. Dept. of Highways, 274 So.2d 924 (La.App. 1 Cir. 1973), writs denied 278 So.2d 504 (1973).

From our review of the record it does not appear that the dismissal of appellant was motivated by any personal prejudice or political reasons, nor that it was arbitrary, discriminatory, or capricious.

For the foregoing reasons, the ruling of the Civil Service Commission of the City of New Orleans is affirmed at appellant’s cost.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge

(concurring).

I believe that in reviewing Petrich’s dismissal, we should equally consider all incidents of incompetence, although disciplinary action had already been taken as a result of the two earlier incidents. Except for the bearing that the two earlier incidents have on the pattern of Petrich’s incompetent performance of duties, I would conclude that the third incident alone did not warrant dismissal under the circumstances of this case.

Substantial questions as to the severity of the discipline were raised by circumstantial evidence of reprisal against Petrich, allegedly because he instituted grievance procedures against his supervisors.

On September 28, 1972 Petrich and 12 other employees from his department signed a statement to the mayor, registering complaints about undue harassment from the operations supervisor. Shortly thereafter Petrich and his attorney, accompanied by several other employees, met with the department director and discussed the complaints and the department’s proposals in response thereto.

On May 3, 1973 Petrich and others again met with the director in furtherance of the complaints. Four days later Petrich received a written reprimand in connection with an assignment on Constance Street the previous month, when he had inspected the wrong property. Although the Commission and the majority did not consider this incident, it is extremely important in my view, since it involves “inspection of the wrong property”, the same act of incompetence for which Petrich was finally dismissed. The fact that an employee has previously been reprimanded or disciplined for an incident should not preclude the appointing authority for referring to that incident, in connection with a dismissal, as part of an overall showing of incompetence.

Because Petrich appealed his one-day suspension in connection with the May 9, 1973 inspection at Penniston Street, the Commission did review that incident. In my view Petrich’s conduct in that matter was insignificant error, since there was general confusion shown in the record as to the procedure which should have been followed. More importantly, an isolated incident of substandard conduct in this respect did not detrimentally affect the operation of the public service, since the procedure' used by Petrich required a follow-up inspection the next month.

On May 15,1973 Petrich and three others filed another grievance. The same day a supervisor was assigned to follow up Pet-rich’s inspection at Penniston Street, the error of which was obvious from the report that he had submitted. The timing of this discipline as to an inconsequential error and the fact that a supervisor came behind Pet-rich immediately with a report, rather than calling his attention to the error as to the procedure used, are Petrich’s strongest suggestion of discrimination. However, the minimum suspension cannot be considered as abusive since the questionable incident followed a written reprimand for a more serious error the previous month.

Two months later the department discovered that the two structures on Gravier Street, which Petrich in October, 1972 had reported as demolished, were still in existence. This incident resulted in his dismissal.

Petrich had apparently inspected the wrong building as part of a program in which every house in that area was to have been inspected. Although called off after discovery of a possible conflict with some federal regulation, the program was reinstated after an eight-month suspension, and Petrich’s error was discovered on reinspection by another employee.

The gravity of Petrich’s error, considered with the fact that shortly before he also inspected the wrong house on Constance Street, supports the severity of the discipline imposed and outweighs the circumstantial evidence suggesting possible discrimination.

      . Petrich contended that his troubles actually began earlier when he recommended legal action after inspecting property owned by the mayor. The record failed to show any irregularity or suggestion of discrimination in connection with the handling of this recommendation.

      . The Constance Street incident also bears on the issue of the substantial relationship between the cause of the dismissal and the efficient operation of the public service. The citizen wrongly cited complained with justification to the department, while the disputed violations continued in existence without citation.


text:
    Larry C. SINGLETON et al. v. Darrell TOWNSEND et al.
    No. 7698.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.

      Morris G. Becnel, Boutte, for Larry Singleton, Brian Singleton, Michael Friloux and Edward Murray, plaintiffs-appellees.
    Emile L. Turner, Jr., New Orleans, for Darrell Townsend, Time Saver Stores, Inc. and Royal Indemnity Co., defendants-appellants.
    Before REDMANN, GULOTTA and BOUTALL, JJ.
   BOUTALL, Judge.

Plaintiffs, Larry Singleton, Brian Singleton, Michael Friloux, and Edward Murray, bring this suit in tort against the defendants, Darrell Townsend, Time-Saver Stores, Inc. and Royal Globe Indemnity Insurance Company, seeking damages for fear of life, embarrassment and humiliation, and false imprisonment, resulting from a high-speed auto chase, shooting, and subsequent arrest for theft. Defendants appeal from the trial court’s judgment for the plaintiffs.

In the case of wrongful detention, to recover damages a plaintiff ordinarily must show (1) that “the arrest is made either without any legal process or warrant or under a warrant void and null on its face”, or (2) “the proceedings are had in pursuance of legal process maliciously, and wrongfully, obtained.” Tillman v. Holsum Bakeries, Inc., La.App., 244 So.2d 681 (1971).

Further, it is argued that defendants are liable by reason of article 2316, Louisiana Civil Code, which states:

“Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

and article 2315, which states:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair * * it.

The uncontested facts as stated by the trial judge in his reasons for judgment are these:

“All witnesses agree, or are supported by undisputed evidence to the following:
(1) Larry Singleton pumped his own fuel after entering the store;
(2) Michael Friloux purchased food for which he paid a store clerk;
(3) Brian Singleton purchased food for which he paid a store clerk;
(4) The four plaintiffs were at the store for some 15 minutes.
(5) After the plaintiffs left the store Nancy Carona reported to Darrell Townsend that the $4.00 of gas was not paid for. This Court feels it is important that the clerk knew the amount of the purchase at that time.
(6) Darrell Townsend picked up a pistol and drove after the Singleton vehicle driving at a speed of up to 100 m.p.h. in order to overtake the plaintiffs.
(7) During the chase Townsend fired five (5) bullets at the plaintiffs hitting Singleton’s auto twice. The plaintiffs were under the impression that three
(3)shots had been fired at them.
(8) As a result of a complaint filed by Darrell Townsend, all of plaintiffs were arrested by deputies of the sheriff’s office, charged with theft and placed in jail. None had previous records of arrests.
(9) Later, following their release on bond, Larry Singleton filed charges against Darrell Townsend, who under cross-examination without objection admitted he was convicted in another division of this Court, of assault with a deadly weapon.”

The trial judge considered the central issue in this case when in his reasons for judgment he made the following statements: “Larry Singleton, driver and owner of the auto in which the plaintiffs were traveling testified that he paid the store clerk with four $1.00 bills. This testimony is supported by Brian Singleton, Michael Friloux and Edward Murray. Nancy Caro-na and Darrell Townsend, employees of the store, testified that neither of them were paid for the gasoline. Other than this conflict no other dispute exists.”

The reasons for judgment do not specifically say that the judge disbelieved the defendants or believe the plaintiffs, nonetheless his subsequent holding that the plaintiffs had met the burden of. proof as the basis for his judgment, shows that the trial judge obviously believed that the purchase price had in fact been paid.

On the record as composed, we see no manifest error on the findings of the trial court as to the liability. The trial judge obviously decided this case on the basis of the credibility of the witnesses. Our duty in such a case is to leave that judgment undisturbed absent manifest error on the part of the trial court. Canter v. Koehring Company, 283 So.2d 716, La.1973. The trial judge found the sole cause of plaintiffs’ incarceration to be defendant storekeeper’s negligence and held him liable for plaintiffs’ damages. See Jones v. Simonson, La.App., 292 So.2d 251 (1974).

As to the shooting incident in which defendant admittedly fired five shots at the plaintiffs’ auto, we can find no justification for such an act. We affirm as to the liability of the defendants.

We move to a consideration of damages. The awarding of damages, with the exception of specific damages, is within the sound discretion of the trial judge. LCC Art. 1934(3). The trier of facts should be upheld unless manifest error is found in the record. Harper v. New Orleans Public Service, Inc., 300 So.2d 546, La.App.1974.

While we are aware that the award in one case does not control in any other case, nevertheless we are required to examine the issue of the appropriateness of the quantum of the awards and have examined awards in the following cases. Brasher v. Gibson’s Products Co., La.App., 306 So.2d 842 (1975); Harvey v. Bertaut, La.App., 303 So.2d 211 (1974); Hoffman v. All Star Insurance Corporation, La.App., 288 So.2d 388 (1974); Motichek v. Clovis-Hendry, Inc., La. App., 280 So.2d 225 (1973); Firstley v. Bill Watson Ford, Inc., La.App., 268 So.2d 314 (1972); Tillman v. Holsum Bakeries, Inc., La.App., 244 So.2d 681 (1971); Hughes v. Standidge, La.App., 219 So.2d 6 (1969); Stevens v. Mumphrey, La.App., 218 So.2d 642 (1969).

Under the rationale of those cases previously cited we believe that an award of $5,000 for each plaintiff is excessive and that an award of $1,000 for each plaintiff for the chase and shooting and $1,500 for each plaintiff for false imprisonment is adequate.

For the foregoing reasons, we amend the judgment appealed by reducing the quantum to the following: Larry Singleton, One hundred twenty-five dollars and 17 cents ($125.17) special damages and Two thousand five hundred dollars ($2,500.00) general damages; Brian Singleton, Michael Fri-loux and Edward Murray, two thousand five hundred dollars (2,500.00) each for general damages, and as amended, we affirm.

AMENDED AND AFFIRMED.


author: GILLESPIE, Chief Justice,

text:
    FEDERAL COMPRESS & WAREHOUSE COMPANY v. Joe T. REED et al.
    No. 48705.
    Supreme Court of Mississippi.
    Oct. 19, 1976.
    Jacobs, Griffith & Povall, Charles C. Jacobs, Jr., Cleveland, for appellant.
    Hatcher & Westerfield, John L. Hatcher, Cleveland, for appellees.
    Before GILLESPIE, C. J., and PATTERSON and WALKER, JJ.
   GILLESPIE, Chief Justice,

for the Court:

Joe T. Reed and Joe W. Reed, doing business as Reed Farms, sued Federal Compress & Warehouse Company (Compress) in the Circuit Court of Bolivar County. Judgment was entered in favor of Reed Farms after a jury trial, and Compress appealed.

Reed Farms stored about 250 bales of cotton in the warehouse operated by Compress. On October 21, 1972, a fire destroyed the cotton in one section of Compress’ warehouse, including 88 bales owned by Reed Farms. More than 7,000 bales of cotton were lost in the fire, and Compress was unable to notify all of the owners, including Reed Farms, of the quantity and numbers of their 'bales of cotton until about November 22, 1972. Compress had the cotton insured for its value as of the date of destruction. The 88 bales belonging to Reed Farms were valued at $10,198.-41 as of the date of the fire, and this amount was paid to Reed Farms. Between the date of the fire and November 22, 1972, the date Compress notified Reed Farms of the extent of their loss, the price of cotton increased in value, and the 88 bales were worth on the latter date $2,-016.81 more than on the date of the fire. This is the amount involved in the present suit.

The fire started accidentally, but the proof showed, and the jury found, that Compress was negligent in not being able to control the fire because of an improper sprinkler system protection, holes in the hoses attached to water mains, unavailability of appropriate wrenches to turn on the water and in other respects. However, we find that the negligence attributable to Compress were acts of orgission and did not constitute gross negligence tantamount to a wilful wrong. We are of the opinion that the facts established simple negligence on the part of Compress so overwhelmingly that a discussion of the evidence is unnecessary.

The question for this Court’s decision is as follows: When goods of fluctuating value are stored in a warehouse and are destroyed by reason of the simple negligence of the warehouseman, what is the measure of damages when the market value of the goods increases between the date of destruction and the date the owner learns of the extent of the loss ?

We do not have a case of a declining market and this opinion deals only with a situation where the market rises between the date of loss and the date the owner is notified of the quantity and numbers of the bales lost.

This is a new question in the precise form presented by this case. Ordinarily the measure of damages for negligent destruction of property is the value of the property at the time of destruction. 22 Am.Jur.2d, Damages §§ 146 and 147 (1965). For reasons to be stated, this measure does not adequately compensate Reed Farms under the particular facts of this case.

We have carefully studied Hattiesburg Compress Co. v. Johnson, 81 Miss. 731, 33 So. 654 (1902), upon which both parties rely to some extent. In that case the owner recovered the value of his cotton, lost by the Compress Company, as of the time the fact of loss and the quantity of the loss were known to the Compress Company and Johnson, the owner of the cotton. The instant case is different from the Hatties-burg case in that both parties knew of the fact of loss and the extent of the loss in the Hattiesburg case, while in the instant case the fact that a loss had occurred was known to Compress and Reed Farms on October 21, 1972, but Reed Farms was not notified of the extent of the loss until about November 22, 1972. If we now follow what the Court did in the Hattiesburg case, Reed Farms should recover the value of the 88 bales of cotton at the time Compress notified Reed Farms of the extent of the loss.

Reed Farms obviously placed their cotton in the warehouse because they were not ready to sell. In other words, they were holding the cotton for a better market. After it was generally known that a fire had occurred, Reed Farms could not sell their cotton because they did not know how much was destroyed and, therefore, did not know how much they owned. They had a right to follow the market from day to day and sell whenever the condition of the market suited them. They may or may not have exercised this right, but it was a right to which they were entitled. It was the duty of Reed Farms to mitigate damages under the general rule that one whose property has been negligently injured or destroyed must do what is reasonably necessary to mitigate his damages. But Reed Farms could not have gone on the market and bought cotton to replace that lost until they knew the extent of their loss. If Compress had notified Reed Farms on the day of the fire of the extent of their loss, then that date would have been the proper time to value the cotton and thus measure the damages. But this was not done. There is some evidence that if Reed Farms had pressed Compress for the quantity of cotton lost they could have learned the extent of their loss earlier, but we think there was no greater obligation on Reed Farms in this respect than there was on the part of Compress.

After Reed Farms was notified of the extent of their loss, it was up to them to decide whether they would go on the market and buy cotton at that day’s price to replace the cotton destroyed. They could not have done so before they knew the extent of their loss. Therefore, we hold that in order to adequately compensate Reed Farms, they should be paid the value of the cotton when both Compress and Reed Farms knew the quantity and numbers of the bales destroyed. And it is immaterial whether Reed Farms intended to replace the cotton. In our opinion, the measure of damages should not be placed on such a subjective basis, for to do so would be to encourage falsehood as to the owners’ intention and to put a premium on those who falsified their actual intentions.

Compress argues that Reed Farms are limited as to the amount of damages by the provisions of Mississippi Code Annotated section 75-7-204 (1972), which provides that “Damages may be limited by a term in the warehouse receipt or storage agreement limiting the amount of liability in case of loss or damage,” etc. There is no provision in the warehouse receipt with reference to the limitation of damages, but it makes reference to the “tariff of the company.” The tariff provides for Compress to carry all risk insurance and in reference to this insurance, the tariff provides:

(a) The actual cash value provided for in this insurance coverage shall be the market value of uncompressed cotton based upon the nearest applicable USDA spot market quotations for the location where the loss occurs at the time and place of loss. . . .

The first paragraph of Code section 75-7-204 provides as follows:

(1) A warehouseman is liable for damages for loss of or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances but unless otherwise agreed he is not liable for damages which could not have been avoided by the exercise of such care.

In interpreting this section of the Uniform Commercial Code, any attempted exemption will be strictly construed against the exemption clause. In 78 Am.Jur.2d, Warehouses section 237 (1975), it is said:

It is widely held that a warehouseman lacks the power to contract against liability for his own negligence, but even assuming that he has such power it is clear that the courts will strictly construe the exemption clause and will not allow the exemption, unless the contract plainly shows that it is the intention of the parties to relieve the warehouseman from responsibility for the results of such conduct. Thus, a clause in a receipt to the effect that the warehouseman shall not be liable for damage to the goods has been interpreted not to relieve him from the obligation of exercising reasonable care.

It could not be argued with reason that the parties could have contemplated (1) that Compress would fail to exercise reasonable care and (2) as a result a delay would ensue between the date of loss and the date Reed Farms would learn of the extent of their loss. Of course, but for the delay, the valuation at the time of loss would be the measure of damages. The claimed limitation on liability does not apply to the facts of this case.

For the reasons stated, we are of the opinion that the judgment of the court below should be and is affirmed.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Michael Franklin NECAISE v. Barbara Ann L. Necaise SMITH.
    No. 48940.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Rehearing Denied Dec. 7, 1976.
    Charles T. Sykes, Jr., Gulfport, for appellant.
    Sekul, Hornsby & Wallace, Thomas L. Wallace, Biloxi, for appellee.
    Before INZER, P. J., SMITH and BROOM, JJ., and JONES, Commissioner.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

AFFIRMED ON DIRECT AND CROSS-APPEALS.