author: ELLIS, Judge:

text:
    John M. COX v. Janet Reynolds COX.
    No. 11073.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 6, 1977.

      Joel B. Dickinson, Baton Rouge, of counsel, for plaintiff-appellee John M. Cox.
    Ralph Brewer, Baton Rouge, of counsel, for defendant-appellant Janet Reynolds Cox.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

John M. Cox and Janet Reynolds Cox were married on September 5, 1947. They established their matrimonial domicile in East Baton Rouge Parish shortly after Colonel Cox retired from the United States Air Force on April 1, 1970. In November, 1974, they purchased a house in Litchfield Park, Arizona, in which Mrs. Cox thereafter resided. Col. Cox returned to Baton Rouge, Louisiana, on December 4, 1974, and the parties have not since lived together.

On January 7, 1975, Col. Cox filed suit in East Baton Rouge Parish for a separation from bed and board on the grounds of cruel treatment. A curator-ad-hoc was appointed to represent Mrs. Cox, who notified her of the proceedings, but who never received any response. Judgment was rendered granting the separation to Col. Cox on February 14, 1975, in which he was ordered to pay support in the amount of $575.00 per month to Mrs. Cox. Col. Cox had complied fully with his obligation to pay alimony thereunder.

On January 31, 1975, Mrs. Cox filed suit in Arizona for separate maintenance. Col. Cox was served personally in Louisiana with the appropriate documents, pursuant to Arizona law. He made no appearance or response. On March 16, 1975, judgment of separate maintenance was rendered in Mrs. Cox’s favor, awarding her, inter alia, alimony in the sum of $830.00 per month, and attorney’s fees of $800.00.

On February 3, 1976, this suit was filed by Mrs. Cox, asking that the Arizona judgment be recognized and given full faith and credit in Louisiana; that alleged arrearages of alimony be made executory; and asking for a divorce from Col. Cox on the grounds of adultery.

Col. Cox answered, denying the validity of the Arizona judgment, and reconvened for a divorce on the ground that more than one year had elapsed since the judgment of separation herein.

After trial on the merits, judgment was rendered in favor of Mrs. Cox awarding her a divorce, and condemning Col. Cox to pay alimony in the sum of $750.00 per month. All other relief sought by the parties was denied. Mrs. Cox has appealed asking for the arrearages and alimony allegedly due under the Arizona judgment as well as the attorney’s fee awarded thereby.

Col. Cox has answered the appeal, asking that the judgment be reversed; that he be awarded a divorce; and that the award of alimony be set aside.

Mrs. Cox’s appeal presents the question of whether we should recognize and give effect to a foreign judgment which purports to adjudicate an issue previously decided by the court of this state. Both of the judgments in question are valid under the laws of the respective states.

It appears to be settled law that only final judgments of another state will be given full faith and credit. Article 2541 Code of Civil Procedure, Official Revision Comment (f); Weston v. Weston, 177 La. 305, 148 So. 241 (1933); Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1910); Devore v. Devore, 172 So.2d 923 (La.App. 4 Cir. 1965). Therefore a judgment for periodic alimony, which is always subject to modification, is considered to be interlocutory in nature as to future installments and not entitled to recognition. Weston v. Weston, supra; Webb v. Webb, 305 So.2d 567 (La.App. 4 Cir. 1975); Succession of King, 184 So.2d 583 (La.App. 4 Cir. 1966). However, arrearages of alimony due under such a judgment, if not subject to modification in the state rendering the judgment, may be granted by a court of another state. Weston v. Weston, supra; Sistare v. Sistare, supra; Webb v. Webb, supra.

However, we do not believe that the full faith and credit clause of the Constitution of the United States requires us to give effect to a foreign judgment, when there exists a prior legal judgment on the same matter rendered by a court of this state. We think the trial judge properly refused to recognize the Arizona judgment.

Col. Cox asks that we reverse the judgment of divorce in favor of Mrs. Cox and grant him a divorce. He argues that post separation sexual relations with a woman other than his wife should no longer be considered as adultery, in light of changing moral standards. The argument is without merit. Adultery is clearly defined in our law and is a ground for absolute divorce if committed by either party to a marriage either before or after a judgment of separation from bed and board. Articles 119, 136, 139 Civil Code; Hillard v. Hillard, 225 La. 507, 73 So.2d 442 (1954).

He further argues that he should be granted judgment on his reconventional demand under R.S. 9:302, since, when it was filed, more than one year had elapsed since the rendition of the judgment of separation. The petition for divorce was filed by Mrs. Cox over a week before the lapse of one year from the date of separation. Her main demand for divorce therefore took precedence over the reconventional demand, and the divorce judgment was properly granted in her favor. McCaa v. McCaa, 163 So.2d 434 (La.App. 2nd Cir. 1964); Perry v. Perry, 207 So.2d 819 (La.App. 1st Cir. 1968).

Finally, Col. Cox asks that the judgment awarding alimony to his wife be reversed on the ground, that, since she was legally at fault in the separation, she is not entitled to alimony under Article 160 of the Civil Code, which requires that she be free from fault. Mrs. Cox alleges that, regardless of her fault in the separation, Col. Cox is at fault in the divorce since the ground therefor was his adultery.

We decline to rule on this point, because our perusal of the record leads us to the conclusion that the question of Mrs. Cox’s right to post divorce alimony was not at issue in the trial. There is no pleading by Col. Cox asking to be relieved of this burden. In the transcript, the court asked counsel for Col. Cox if his client was willing to pay alimony, and was advised there was a contest only as to the amount. On cross examination, Col. Cox was asked how much he was willing to pay, and he responded that he would pay whatever the court considered to be fair. There is not one word of evidence bearing on the question of the fault of the wife, and Col. Cox did not offer the judgment of separation in evidence.

We conclude that, since the fault of Mrs. Cox was not placed at issue, and since both Col. Cox and his counsel expressed an intention to pay post divorce alimony, Mrs. Cox was thereby relieved of her burden of proving herself free from fault. Under the circumstances, it is too late, at this stage of the proceedings, to raise the issue, regardless of its merit.

We recognize that, under Article 2164 of the Code of Civil Procedure, we may consider matters not argued at the trial level. However, this article has no application when it is apparent from the record that matters urged on appeal were conceded in the trial court.

As to the amount of $750.00 per month fixed by the trial court, we note that Col. Cox had been paying this sum voluntarily until the time this suit was filed, although it was in excess of the $575.00 he was ordered to pay by the Louisiana court. Our study of the record leads us to the conclusion that $750.00 per month is within the means of Col. Cox and is adequate to provide Mrs. Cox with maintenance. We find no manifest error.

The judgment appealed from is affirmed. All costs are to be shared equally by the parties hereto.

AFFIRMED.

PONDER, J., concurs in the result.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Reverend Aubrey Denson FOSTER, Individually and as Tutor of his minor son, Robin D. Foster, et al. v. Billy R. MARSHALL et al.
    No. 13058.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    En Banc. Rehearing Denied Feb. 14, 1977.
    Writ Refused March 31, 1977.

      Kierr, Gainsburgh, Benjamin, Fallon & Lewis by Harvey J. Lewis, New Orleans, for appellants.
    Theus, Grisham, Davis & Leigh by J. Michael Hart, Monroe, for Billy R. Marshall and American Employers Ins. Co.
    Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., and William G. Kelly, Jr., Monroe, for Scott Truck and Tractor Co. of Winnsboro, Inc. and Scott Truck and Tractor Co. of Monroe, Inc.
    Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, for Prior Products, Inc. and Southwest Wheel & Manufacturing Co., Inc.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

This wrongful death action arises from fatal injuries suffered by Mrs. Eula Mae Foster when an oncoming cotton wagon or trailer being towed by a pickup truck veered into decedent’s lane of travel and collided with her automobile. The cause of the trailer veering into decedent’s lane of travel was the failure of the bolting assem- ■ bly connecting the towing yoke to the trailer.

The plaintiffs are Reverend Aubrey Den-son Foster, decedent’s husband, individually and as tutor of a minor son, and two major sons. The defendants are (1) Billy Ray Marshall, owner of the cotton trailer and driver of the pickup truck; (2) American Employers Insurance Company, liability insurer of Marshall; (3) Prior Products, Inc. and Southwest Wheel & Manufacturing Company, Inc., manufacturer of the cotton trailer; and (4) Scott Truck and Tractor Company of Winnsboro, Inc., which sold the used and refurbished trailer to Marshall.

Plaintiffs’ suit is based on contentions that decedent’s death was caused by the concurring fault of all defendants and in particular that:

(1) Prior is liable:
(a) For manufacturing a product that was defectively designed; and
(b) For failing to give any warnings or instructions concerning proper maintenance which it knew was mandatory for safe use of its product.
(2) Scott is liable:
(a) For inadequately inspecting the wagon and failing to replace unsafe and/or missing parts; and
(b) For failing to make the vehicle reasonably safe for highway use; and
(3) Marshall is liable for failing to correct unsafe conditions in the cotton wagon prior to putting it to use on public streets.

After trial on the merits, the district court in a lengthy, carefully considered, written opinion, found that only Marshall was liable for Mrs. Foster’s death. Judgment was rendered in favor of plaintiffs against Marshall in the total amount of $51,318.20, subject to a credit of $5,000 paid by Marshall’s liability insurer prior to trial, being the full amount of the liability policy limits. The amount of the award to plaintiffs was mitigated by reason of Marshall’s impecunious financial condition. Judgment was also rendered rejecting plaintiffs’ demands against Prior and Scott.

Plaintiffs appealed from the judgment insofar as it exonerated Prior and Scott and insofar as it awarded inadequate damages. Marshall and his insurer answered the appeal urging the judgment was in error in finding these defendants liable to plaintiffs, in failing to find liability on the part of Prior and Scott, and in awarding excessive damages.

For reasons expressed in this opinion, we affirm the judgment of the district court rejecting plaintiffs’ demands against Prior; reverse the judgment rejecting plaintiffs’ demands against Scott; affirm the judgment holding Marshall liable; and award damages in the total amount of $93,818.20 against Scott and Marshall in solido.

Mrs. Foster was driving to work about 9:25 a. m. on the morning of October 26, 1972, traveling in a southerly direction along Main Street (Louisiana Highway 605) within the Town of Newellton, Tensas Parish, Louisiana. At the same time Billy R. Marshall, a contract cotton harvester, was driving his 1965 GMC truck towing a cotton wagon in a northerly direction along Main Street. As these vehicles approached each other, the bolting assembly connecting the towing yoke to the front axle of the cotton wagon failed, causing the wagon to swerve into Mrs. Foster’s lane of travel and to collide with her automobile. The resulting impact demolished the Foster vehicle and fatally injured Mrs. Foster.

The cotton wagon consisted of the body or superstructure mounted on a trailer or “running gear.” The running gear was manufactured by Prior in the early 1960’s and consisted of the wheels, yoke or tongue, front and rear axles, reach pole and bolting assembly. The trial court accurately described the essential towing components and how they were connected as follows:

“The trailer lacked motive power and had to be connected to some other vehicle by means of a ‘y’ shaped yoke or tongue so that it could be towed. The lower, single end of this yoke or tongue connected to the towing vehicle and each of its two upper ends fit into two semi-circular or ‘U’ shaped steel brackets called clevis mounts that were welded onto the trailer’s front axle.
“The ‘bolting assembly’ which Prior designed to connect the towing yoke to the trailer’s axle was very simple. It consisted of three components: an unthreaded bolt with a hole near one end, called a ‘clevis pin,’ a flat washer and a Vsth inch cotter key that was fit in the pin hole. The metal clevis mounts and each end of the yoke had holes drilled in them in order to accommodate the ‘clevis pin.’
“The two arms of the towing yoke were connected to the trailer axle by positioning the ends thereof between the arms or side plates of the clevis mounts, with all of the holes in line and the clevis pins' threaded through the holes.
“The clevis pins were made fast by placing the washers over the small ends thereof and inserting the cotter keys in the holes in the pins, behind the washer. Of course, to make the cotter keys effective, the double ends thereof were spread and bent apart.”

Prior to the collision the bolting assembly on the left front axle separated, causing the wagon to veer to its left, invade the opposing line of traffic, and collided with the left side of the car driven by Mrs. Foster. The bolting assembly separated because the cotter key failed, allowing the clevis pin to work its way out of the clevis mounts which in turn allowed the arm of the towing yoke to separate from the trailer axle. Investigating officers found the clevis pin on the street forward of the point of impact, this being in the direction that the pickup truck and trailer were proceeding. The clevis pin and the remnants of the cotter key contained within the diameter of the pin were subsequently examined by the parties’ expert witnesses and were introduced as an exhibit during the trial of this case. No washer was found at the accident scene. The cotter key in place at the time of the failure was a %2 inch cotter key rather than a Vs inch cotter key originally furnished by the manufacturer. No washer was in place on the bolting assembly connecting the other arm of the towing yoke to the front axle.

The running gear of this particular trailer and several thousand others like it were manufactured by Prior in the early 1960’s. Three or four thousand of the trailers, including the one involved in this accident, were sold by Prior to Kline Trailer Company, a distributor in Lubbock, Texas. Kline received the units unassembled, assembled the running gear, and put on bodies or framework of its choice.

Seven of the wagons were purchased from Kline by Herman Harris between the years 1960 and 1963. Harris was a contract cotton harvester who lived in northeast Louisiana and worked both in Louisiana and Texas. Harris used the trailers in his business from 1960 through 1970. He would transport his trailers between Louisiana and Texas in a “piggyback” manner by disassembling two of the trailers and stacking them on a third trailer that was then towed by a pickup truck or automobile over the highways. On the occasion of each reassembly, Harris would change the cotter keys. Sometimes the washers were put back in place and sometimes they were not.

Harris, a customer of Scott, mortgaged four of the trailers to Scott as collateral security for his account with that company. Financial difficulties resulted in the four mortgaged trailers being judicially seized, delivered to Scott for storage and ultimately sold to Scott at sheriff’s sale in mid-1972.

For the most part, from the completion of the cotton harvest in Louisiana in 1970 to the time the trailers were seized in mid-1972, they stood idle in Harris’ pasture. During that time two of the trailers were used on occasion by friends and neighbors of Harris to haul hay and other crops.

After Scott obtained title to the four trailers by virtue of the sheriff’s sale, they were inspected by Willie Carter, an employee of Scott with many years experience in dealing with cotton trailers and other agricultural equipment. Scott is a relatively large dealer in agricultural equipment and sells new trailers which it buys from manufacturers. Scott has a staff of mechanics trained to work on agricultural equipment. The company does not ordinarily deal in used trailers.

Carter’s inspection of the trailers revealed that the superstructures were in bad condition, that the tongue on one of the wagons required welding, and that tires needed replacing. Scott’s personnel demolished the superstructures. Scott contracted with the Arnold brothers, d/b/a Quality Builders, to build new bodies and Arnold also did the required welding work on the tongue of one of the wagons, which was not one of the trailers ultimately sold to Marshall.

Carter testified he visually inspected the cotter keys from about three feet away and they looked to be in satisfactory condition. He testified he also checked the lugs on the wheels to see “if the lugs had been run loose and wobbled out.” He also looked at the coupling poles to see if they were bent and “generally checked ’em over.” Arnold testified that he also visually inspected the cotter keys and they looked all right. Arnold further testified that Carter asked him to check the trailers and if they needed any repairs to go ahead and make the repairs.

After the new metal beds and baskets were built and painted, the trailers were returned to Scott which on September 19, 1972, sold three of the trailers to defendant, Billy Ray Marshall, a contract cotton harvester in the northeast Louisiana area. Marshall put the trailers to immediate and continuous use until the occurrence of the accident, about five weeks later. Marshall testified the trailers performed well and that about three days prior to the accident he visually inspected the cotter keys and they looked all right, but he could not be sure if he looked at the cotter keys on all three trailers and he was not sure whether the washers were in place.

It was established by the testimony of employees of Prior and Kline, over the objection of plaintiffs, that out of the many thousands of trailers sold with identical bolting assemblies over a period of several years, and after use of the wagons for several years, there have never been any complaints received concerning failure of the bolting assemblies, other than the accident involved in this case. The history of the several trailers owned by Harris and then by Marshall was well-established at the trial with no incidents relating to the bolting assembly prior to the accident in question.

Several well-qualified expert witnesses testified for the parties. As noted by the trial judge, each of the witnesses was loyal to the party who hired him.

Testifying for plaintiff was Dr. Gerald D. Whitehouse, professor in mechanical engineering at LSU since 1966, teaching mainly in the area of design. Dr. Whitehouse testified there is no way to predict the useful life of a cotter key. If left outside in the elements it will rust and deteriorate. The use of a washer may or may not reduce the wear on the cotter key. On occasion there will be loads imposed on the cotter key, such as in trips over rough terrain.

Dr. Whitehouse was of the opinion the design of the bolting assembly was inadequate because the integrity of the design depended on a consumable item, the cotter key, the condition of which involves a qualitative evaluation by a person in the field and for which there is no backup safety device in the event of failure. The design is weakened by use of a smaller key obviously too small for the hole in the clevis pin.

The witness was of the opinion the cotter key in this case was weakened by a series of impacts over a period of time and finally failed due to a force sufficient to finish breaking the key. The witness was of the opinion that at the time of the sale of the wagon to Marshall it could have been detected that the key was in poor condition and too small and that it should have been changed at that time.

Testifying for Scott was Dr. Mehdy Sab-baghian, also a professor in mechanical engineering at LSU since 1964. Dr. Sabbag-hian was of the opinion there would never be any axial force placed on the cotter key and that the design was such that it would not cause pressure or wear on the key. He was of the opinion the key failed because of some impact force, (such as hitting a log), applied against and which sheared the key. It would take 150 to 200 pounds of force in order to shear a V32 inch key. The washer is of no importance. The witness was of the opinion the photographs in evidence showed no sign of wear on the cotter key involved in this accident. He was of the opinion the design was unreasonably dangerous because of the possibility of hitting a log or some other object with sufficient force to shear the cotter key.

Prior offered three expert witnesses. Professor Charles E. Balleisin, professor in mechanical engineering at SMU since 1957, testified that the bolting assembly design is simple, easily inspected, and easily maintained. The load is transverse to the clevis pin and not on the cotter key. Dr. Balleisin stated that a %2 inch cotter key has only V2 of the shear strength of a Vs inch key. Cotter keys are in wide use for similar purposes on integral parts of motor vehicles, such as parts of the accelerator and brake linkage of automobiles.

Also testifying for Prior was Edward Earl Walters, consulting civil engineer with Haag Engineering Company in Dallas, who taught engineering at SMU for 22 years. Mr. Walters testified the cotter key in this case was deteriorated, rusty and worn. It had deteriorated due to abrasion, rubbing and frictional wear until the ends had worn through. It had been in use for a long period of time. Mr. Walters was of the opinion the key did not suddenly shear but that it was a long, wearing process. He was further of the opinion that the cotter key was in an unacceptable condition at the time of the sale four or five weeks prior to the accident and that the condition of the key would have been apparent to anyone inspecting it. The witness thought a washer might reduce wear on the key but would not make it stronger because there is no load transfer between the washer and other components.

Another expert witness for Prior was Professor Joseph H. Barnwell, professor in mechanical engineering at Louisiana Tech since 1958, with considerable practical experience and experience with agricultural equipment specifically. Professor Barnwell testified that over an extended period of time the %2 inch cotter key, which was too small to begin with, wore thin because of a combination of wear and a small amount of play between the outer face of the clevis mount and the cotter key. It finally broke off. The professor also verified that a %2 inch key has only V2 the shear strength of a Vs inch key.

Professor Barnwell was of the opinion the design was adequate so long as proper parts were used. There is no basic force applied to the cotter key which simply holds the clevis pin in place. There is some very slight amount of play in maneuvers such as going around a curve. Professor Barnwell was of the opinion the cause of the failure of the key was a combination of it being too small and lack of maintenance over many months or even years. He was of the opinion the cotter key should have been replaced before resale of the cotton trailer.

Based on a preponderance of the totality of the evidence, including physical evidence, lay testimony and expert testimony, this court concludes:

(1) The cotter key failed primarily because of deterioration and wear over an extended period of time — at least two years. Some shear force, either slight repeated occasional impacts or an impact sufficient to ultimately shear the deteriorated and worn cotter key, may have contributed to the failure, but was not a major or primary cause;
(2) The cotter key was in poor condition, worn and deteriorated, at the time of the sale of wagon by Scott to Marshall approximately five weeks prior to the accident;
(3) The use of the smaller %2 inch cotter key rather than a Vs inch cotter key was a contributing factor to the failure;
(4) The poor condition of the cotter key and the fact that it was too small for the hole in the clevis pin was discoverable by a careful, close inspection during the time the trailer was in the possession of Scott, Arnold, and Marshall; and
(5) A washer probably was not used on the bolting assembly from the time the cotter pin was last replaced by Harris until the accident. The absence of the washer was a contributory, but relatively insignificant factor in the wearing and ultimate failure of the cotter key.

Prior’s Liability

Plaintiffs argue that Prior is liable for manufacturing a product that was defectively designed and for failing to give warnings or instructions concerning proper maintenance which it knew was mandatory for safe use of its product.

The principles governing a manufacturer’s liability for damages caused by a defective product are set forth in Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971):

“A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.
* * * * * :}:
“If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.”

As designed and manufactured by Prior, the bolting assembly of the cotton wagon was not unreasonably dangerous to normal use. The cotter key, within the framework of the design, was essentially not a load-bearing component but was basically a positioning device. With a Vs inch cotter key, which was the size furnished by the manufacturer and the size the hole in the clevis pin was designed to accommodate, in place, a shear force of about 400 to 500 pounds would have been necessary to break the key. Even with the smaller %2 inch cotter key in place, a shear force of about 200 pounds would be necessary to shear the key. Exertion of this sort of impact force against the key is improbable and we have found as a fact that in this case failure of the cotter key was not due to any such shear force. The evidence does not establish that a properly sized cotter key could be anticipated to wear out under normal use for a reasonable period of time.

A manufacturer cannot be expected to design products with component parts which will never wear out, regardless of the nature of use or maintenance. A manufacturer is entitled to anticipate that a consumer purchasing its product will use reasonable care in maintaining it. The product in this case was a relatively simple piece of agricultural equipment for use by farmers or harvesters who generally have some degree of experience in the maintenance of agricultural equipment. All persons who dealt with this particular wagon testified they knew that cotter keys will wear out and need to be replaced periodically. They further testified they knew the proper size cotter key to use is the largest size that will fit the hole. The cotter key failed in this case, not because the bolting assembly was defectively designed, but because the cotter key in use was undersized and had not been reasonably inspected and maintained.

Strongly supporting the adequacy of the design is the fact that the bolting assembly on the wagon involved in this accident had functioned properly and without difficulty for seven to nine years. There had been no other known failures of Prior bolting assemblies on the many thousands of units manufactured and sold by that company. In cases where defective design is alleged, as distinguished from cases in which defective manufacture is alleged, all of the products are designed alike and the history of accidents is relevant and has probative value in showing whether the design in question is unreasonably dangerous.

Plaintiffs argue that the design should have included a backup safety component such as a threaded bolt and nut. The evidence does not establish that the use of such additional safety components was a standard in the industry or that the failure to use such additional components made the design in question unreasonably dangerous.

Two Louisiana eases in which a manufacturer was held free from liability for damages caused by the failure of a component of a mechanical device where the failure was found to have been due to improper maintenance are Simon v. Ford Motor Company, 282 So.2d 126 (La.1973) and Meche v. Farmers Drier & Storage Company, 193 So.2d 807 (La.App. 3d Cir. 1967).

A product is defective when the risks are greater than a reasonable buyer would expect. Welch v. Outboard Marine Corp., 481 F.2d 252 (5th Cir. 1973). A reasonable buyer of a piece of agricultural equipment such as a cotton wagon should expect the product to contain consumable parts which require inspection and maintenance.

Plaintiffs also argue that Prior failed to warn of the dangers which would accompany improper maintenance and the use of an improper sized cotter key, relying heavily on Rey v. Cuccia, 298 So.2d 840 (La.1974). Rey held:

“If the trailer were so constructed that such a slight deviation from a recommended procedure of installation of the hitch (24 inches above the ground rather than 18) would cause this type of damage, then this constitutes a defect for which the manufacturer would be responsible, absent at least some warning of the danger involved.”

Amco Underwriters of Audubon Insurance Company v. American Radiator and Standard Corporation, 329 So.2d 501 (La. App. 3d Cir. 1976) holds that the duty to warn “exists even though the product is not defective. Rather, it is the potential harm which can result through improper use of the product that gives rise to the duty to instruct or warn.”

However, the duty to warn goes only to those dangers which are not obvious. A manufacturer is not compelled to warn knowledgeable purchasers of the dangers of which the buyer either knows or should be aware. Bradco Oil & Gas Company v. Youngstown Sheet & Tube Co., 532 F.2d 501 (5th Cir. 1976); West v. Hydro-Test, Inc., 196 So.2d 598 (La.App. 1st Cir. 1967).

In this case it is firmly established that persons ordinarily dealing with agricultural equipment, whether dealers or users, are or should be well aware that cotter keys need inspecting and replacing periodically. The two users of the particular cotton wagon in question, Harris and Marshall, each testified he was aware that cotter keys had to be checked, as did Scott’s employee, Carter. The bolting assembly was readily visible and accessible, and the cotter key could be inspected and replaced easily and inexpensively.

Furthermore, it is difficult to imagine a warning that would, as a practical matter, be likely to reach a third party purchaser some seven to ten years after the product was manufactured. Even a stamp or label on the product itself would likely be ineffective after the passage of that much time, particularly considering the exposure of the product to the elements.

The product was not unreasonably dangerous as manufactured. The need for proper maintenance and use of a proper size cotter key was obvious and did not require warnings by the manufacturer. Prior is not liable.

Scott’s Liability

Plaintiffs urge that Scott is liable for inadequately inspecting the wagon and in failing to replace unsafe and/or missing parts. In holding Scott free from liability, the trial court found that the inspection by Carter and the Arnold brothers substantially complied with the duties imposed on the seller to inspect in a reasonable and prudent manner and found that the evidence was insufficient to prove that parts of the bolting assembly were missing or patently faulty at the time of the sale.

The opinion of this court is that the district court’s first conclusion is erroneous as a matter of law and its second conclusion is erroneous as a matter of fact. The duty of a dealer in used vehicles who undertakes to recondition a vehicle is stated in Barker v. Phoenix Insurance Company, 220 So.2d 720 (La.App. 2d Cir. 1969):

“While a dealer in used or second-hand motor vehicles who undertakes to recondition a vehicle for resale is not an insurer of the safety thereof, he is nevertheless under a duty to use reasonable care in making tests for defects which would render the vehicle a menace to persons using or coming into contact with it and making it reasonably safe for use on the highways. He is charged with the knowledge of patent defects or defects which are discoverable in the exercise of ordinary care.”

In Barker, a used car dealer was found liable where it failed to inspect and discover damage to the sector shaft of the steering assembly of a wrecked automobile which it undertook to repair for resale.

In the instant case, Scott, a relatively large dealer in agricultural equipment with experienced personnel, undertook to refurbish and recondition the used cotton wagon for resale. Scott’s experienced employee, Carter, and the Arnold brothers with whom Scott contracted to do work on the trailer, made a generally thorough visual inspection of the trailer. Scott’s employees dismantled the superstructure and the Arnold brothers built a new superstructure. Each visually looked at the cotter keys on the bolting assemblies from a distance and each testified they looked all right. The wagon was sold, along with two others, to Marshall as being, either impliedly or expressly, in good condition and fit for its intended use.

The refurbishing of the trailer was extensive and Scott purported to inspect the integral parts of the wagon.

In a previous section of this opinion we have stated our conclusion that the cotter key was in poor condition, worn and deteriorated at the time of the sale and that the condition of the cotter key and the fact that it was too small were discoverable by a careful, close inspection during the time the trailer was in the possession of Scott. This conclusion is contrary to that of the district court, but is supported by a preponderance of the evidence as previously discussed in this opinion.

Scott’s employee, Carter, and the Arnold brothers recognized the necessity for checking the cotter key. The cotter key, hidden for the most part by the pin in which it is inserted, could not be adequately inspected by simply looking at it from a distance. The inspection which Scott made, recognizing its necessity, was not adequate and was not made with due care. At the least, the key should have been examined closely, if not removed and replaced. In view of Scott’s knowledge of the prior history of the trailer, which was several years old, including its previous storage in a pasture for a considerable period of time, Scott should have removed and replaced the old, rusted and undersized cotter key, an integral part of the bolting assembly, as a matter of routine maintenance and refurbishing prior to resale.

Scott failed to make an adequate inspection and failed to replace the old and undersized cotter key as a matter of routine and required maintenance and thereby breached its duty to use reasonable care in making the vehicle reasonably safe for use on the highways and to discover a patent defect which was discoverable in the exercise of ordinary care.

Plaintiffs also contend that Scott’s refurbishing of the cotton wagon makes Scott a manufacturer and subject to a manufacturer’s strict liability, comparing Scott to the pulpwood truck outfitter held to be a manufacturer in Spillers v. Montgomery Ward & Co., Inc., 294 So.2d 803 (La.1974). Scott argues that its position is similar to the retail truck dealer in Spillers which was held to be a retailer, not a manufacturer. It is unnecessary for this court to resolve this issue since it has been concluded that Scott is liable under the lesser standard of ordinary care imposed on a retailer which undertakes to refurbish a vehicle for resale.

Insofar as the responsibility of a retailer is concerned, the Spillers case holding the retailer free from liability is distinguishable from the instant case. In Spillers, the defective part was furnished by a reputable manufacturer and the defect was not one discoverable by the usual retailer relying on the work of a manufacturer. In the instant case, the retailer, Scott, itself experienced in the mechanics of agricultural equipment including cotton wagons, had more expertise than did the retailer in Spillers, the defect was more easily discoverable and remedied, and the defect was not in a part of the vehicle furnished by a recent third party manufacturer.

Scott’s contention that the failure of the cotter key was caused by a sudden shear force after the sale of the trailer to Marshall and that the cotter key was in good condition when it left Scott’s hands has been answered negatively by the findings of fact to the contrary in an earlier portion of this opinion.

The conclusion of this court is that Scott sold a cotton wagon with a defective cotter key in the bolting assembly, which defect was discoverable and easily remedied by a close, careful inspection which was required of Scott under the circumstances of this case, and that the failure of Scott to replace the worn, deteriorated, and undersized cotter key was a legal cause of the accident and plaintiffs’ resulting damages, for which Scott is liable.

Marshall’s Liability

Plaintiffs contend Marshall is liable for failing to correct unsafe conditions in the cotton wagon prior to putting it to use on public streets. The trial court applied the presumption of Marshall’s negligence arising from the fact that his vehicle collided with the Foster vehicle while in its wrong lane and held Marshall failed to carry his burden of proving he was without slightest fault.

In Simon v. Ford Motor Company, 282 So.2d 126 (La.1973), the court applied the rule that a motorist whose vehicle strays into the wrong lane must exculpate himself from “any fault, however slight, contributing to the accident.” Simon involved an accident caused by a failure in the ball joint assembly of an automobile. Under the facts of that case the court concluded that the owner-driver of the vehicle failed to prove he properly maintained the ball joint assembly and, therefore, had not carried the heavy burden of exculpating himself from any fault contributing to the accident. The court further took into consideration the rule, also applicable to the instant case, that one whose vehicle causes injury to another because of an allegedly latent defect has a heavy burden of exonerating himself from fault. See Ryan v. Rawls, 260 So.2d 137 (La.App. 2d Cir. 1972).

Marshall had many years experience in the mechanized harvesting of cotton and extensive use of cotton trailers. He knew or should have known that periodic inspections of the trailers were necessary. His daily routine of connecting and disconnecting the tongue of the trailer to his pickup truck furnished ample and repeated opportunity for him to detect the undersized and worn cotter key. Marshall testified he did, in fact, look at the cotter keys on at least two of the trailers a few days prior to the accident. As in the case of Scott, his inspection was inadequate, if he actually inspected the trailer which was involved in the accident. Marshall failed to exculpate himself from the presumption of negligence and the judgment of the district court holding him liable is correct.

Quantum

In fixing the amount of damages the district court took into consideration the virtually insolvent financial condition of the defendant, Marshall, employed as a painter at the time of trial. The surviving husband was awarded general damages of $15,000, plus $1,318.20 for funeral expenses or a total of $16,318.20. Damages of $15,000 were awarded on behalf of the minor son and damages of $10,000 were awarded to each of the two major sons. The total award was $51,318.20.

Since Scott Truck and Tractor is being held liable in solido with Marshall for plaintiffs’ damages, the amounts of the awards must be reassessed by this court.

The decedent was 47 years old at the time of her death. She was survived by her husband, Reverend Foster, to whom she had been married since 1944. She was also survived by one minor son, Robin D. Foster, age 14 and by two major sons, Larry Wayne Foster, age 25 and Danny Ray Foster, age 19. Both of the older sons lived away from home in other cities but visited back and forth with their mother regularly. Reverend Foster was principal of Waterproof High School and an ordained minister. The Foster family was an extremely close and happy one. The trial judge described the decedent as a “lovely, attractive, and efficient lady, who was a devoted mother, a superb wife, and a treasured employee.”

At the time of her death Mrs. Foster was employed by Burnsides Antique Store in the Newellton area earning $65 per week. She went to work about four years previously because the family needed additional income. She was in good health and planned to continue working as long as the family needed the additional money.

Shipman v. Tardo, 304 So.2d 381 (La.App. 4th Cir. 1974) held that if a husband has an actual loss as a result of the lost earnings of his wife, he is entitled under LSA-C.C. Art. 2315 to repair of that damage. The Fourth Circuit expressed disagreement with Parker v. Smith, 147 So.2d 407 (La.App. 2d Cir. 1963) which held that a husband has no such claim.

Mrs. Foster, through her earnings which were pooled with those of Reverend Foster to meet the family expenses, was making a material financial contribution to the support of the family and her death has caused an actual financial loss. Under LSA-C.C. Art. 119, the husband and wife owe to each other mutual fidelity, support and assistance and under LSA-C.C. Art. 227, both parents owe an obligation of support to their minor children. There is no legal reason for distinguishing between the loss of support recoverable by the surviving- husband and minor children of a wife and mother who is providing support and recovery by a surviving wife and minor children for loss of support by reason of death of a husband and father who is providing support. To the extent that Parker v. Smith, supra, is contrary to the views expressed in the Shipman case and in this opinion, the Parker case is overruled. Reverend Foster and the minor son are entitled to an award for loss of support.

Several cases are cited by plaintiffs and defendants reflecting a wide range in awards to surviving spouses and children. See Aymond v. State Department of Highways, 333 So.2d 383 (La.App. 3d Cir. 1976); Stanley v. Wiley, 325 So.2d 660 (La.App. 3d Cir. 1975); Gunter v. Wiley, 325 So.2d 654 (La.App. 3d Cir. 1975); Wilson v. Pittman, 307 So.2d 804 (La.App. 1st Cir. 1975); Cacibauda v. Gaiennie, 305 So.2d 572 (La.App. 4th Cir. 1974); Rodriquez v. Trebitz, 304 So.2d 396 (La.App. 1st Cir. 1974); Shipman v. Tardo, supra; Smith v. Manchester Insurance & Indemnity Company, 299 So.2d 517 (La.App. 4th Cir. 1974); Barnett v. Trinity Universal Insurance Company, 286 So.2d 770 (La.App. 2d Cir. 1973); LeBlanc v. Estate of Blanchard, 266 So.2d 918 (La. App. 4th Cir. 1972); Womack v. Travelers Ins. Co., 258 So.2d 562 (La.App. 1st Cir. 1972); Winzer v. Lewis, 251 So.2d 650 (La. App. 2d Cir. 1971); Harkins v. State Department of Highways, 247 So.2d 644 (La. App. 3d Cir. 1971).

The awards to plaintiffs are fixed as follows:

Reverend Aubrey Denson Foster:
Loss of Itove, affection and companionship and loss of support; $ 45,000.00
Funeral expense; 1,318.20
Total. $ 46,318.20
Reverend Aubrey Denson Foster as Tutor of his minor son, Robin D. Foster:
Loss of love, affection and loss of support; $ 22,500.00
Larry Wayne Foster:
Loss of love and affection; $ 12,500.00
Danny Ray Foster:
Loss of love and affection; $ 12,500.00
Total. $ 93,818.20

Decree

For the reasons assigned, the judgment of the district court is affirmed insofar as it rejects plaintiffs’ demands against Prior, is reversed insofar as it rejects plaintiffs’ demands against Scott, is affirmed insofar as it holds Marshall liable, is amended as to the amount of damages to which plaintiffs are entitled, and is recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiffs, Reverend Aubrey Denson Foster, Individually and on behalf of his minor son Robin D. Foster, Larry Wayne Foster and Danny Ray Foster, against defendants Billy Ray Marshall and Scott Truck and Tractor Company of Winnsboro, Inc., in sol-ido, in the following amounts: Reverend Aubrey Denson Foster — $46,318.20; Reverend Aubrey Denson Foster as Tutor of his minor son Robin D. Foster — $22,500; Larry Wayne Foster — $12,500; and Danny Ray Foster — -$12,500; with legal interest on said amounts from date of judicial demand, October 12, 1973, until paid, together with all costs of these proceedings, including the cost of appeal, subject, however, to a credit of $5,000 previously paid by American Employers Insurance Company.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of defendants, Prior Products, Inc., Southwest Wheel & Manufacturing Co., Inc. and Scott Truck and Tractor Company of Monroe, Inc., against the aforenamed plaintiffs, rejecting plaintiffs’ demands and dismissing their suit against said defendants.

Affirmed in part, reversed in part, amended and recast.

      . Prior and Southwest are related corporations and by agreement are treated as one entity in this proceeding and will be referred to as Prior.

      . Scott Truck and Tractor Company of Monroe, Inc., was also named as a party defendant, but was shown to have had no involvement in the sale and it is agreed that plaintiffs’ demands against that corporation were properly rejected.


author: BEER, Judge. GULOTTA, Judge,

text:
    Mrs. Harry G. DUKE v. VALLEY FORGE LIFE INSURANCE COMPANY et al.
    No. 7715.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.

      Deutsch, Kerrigan & Stiles, Francis G. Weller, New Orleans, for defendants-appellants.
    Louis C. Philips, New Orleans, for plaintiff-appellee.
    Before GULOTTA, STOULIG and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, the widow of decedent, Harry Duke, filed this suit against Valley Forge Life Insurance Company, The Planning Corporation and The International Association of Electrical Inspectors for recovery of $10,000 (plus legal interest and costs) allegedly due her as sole beneficiary under a group life insurance policy.

In all matters pertinent to this litigation, The Planning Corporation was the local agent for Valley Forge Life Insurance Company (hereafter “Valley Forge”) and The International Association of Electrical Inspectors (hereafter “IAEI”) was an account holder of the insurance company in behalf of those of its members who chose to participate in the group life insurance program of Valley Forge.

Defendants contend that the alleged insurance coverage which Mrs. Duke seeks to enforce on a theory sounding in tort never, in fact, came into existence. They further contend that even if it had, material misrepresentations vitiated coverage. They contend such tort recovery requires proof of the insurer’s unreasonable delay in providing coverage and that similar coverage could, otherwise, have been obtained elsewhere. They argue that Mrs. Duke failed to produce any evidence to support the second part of this burden and that the time factor involved does not support a fair definition of “unreasonable delay.”

Trial on September 2, 1975, was followed by judgment in favor of plaintiff Mrs. Duke and against defendant Valley Forge for $10,000 (the coverage amount of the policy), together with legal interest thereon from date of judicial demand until paid, and for all costs. On December 19, 1975, Valley Forge’s motion for a new trial was denied. Suspensive appeal by Valley Forge was answered by Mrs. Duke seeking legal interest “from the date of receipt of due proof of death” until paid and reasonable attorneys’ fees.

It is helpful to consider certain relevant facts in chronological order:

Early in 1972, a brochure circulated among the members of IAEI had solicited them to purchase life insurance provided by a group policy underwritten by Valley Forge (with The Planning Corporation acting as its agent). The program, sponsored by IAEI, was made available to all of its members under 65 years of age. If the member applied during the charter period ending May 1,1972, no medical examination was initially required.

Harry Duke, a member of IAEI, 61 years of age, filled out an application and forwarded it (accompanied by a premium check in the amount of $157.60) on February 23, 1972. He sought to obtain life insurance coverage in the amount of $10,000. However, the payee of the check was incorrectly shown as “Mrs. Harry Duke” and so it was returned by the company’s agent. A new check in the same amount with the payee properly shown was sent forward by Duke on or about March 10 and, thereafter, negotiated by Valley Forge on or about March 21.

The application, signed by Duke, contained the following representation:

“I represent that the statements and answers shown above are complete and true to the best of my knowledge and belief and understand that the Insurance applied for will not become effective unless and until the first premium has been paid during the lifetime of the insured and the Valley Forge Life Insurance Company unconditionally approves and accepts this application.’’ (Emphasis ours.)

Thereafter, on April 14, 1972, the underwriting department of Valley Forge requested its agent, The Planning Corporation, to secure, from Duke, an authorization for them to obtain a statement from Duke’s physician detailing a high blood sugar situation that had been reported by Duke on the application form which had been sent to the company with his original check. This was handled by letter dated April 26, 1972, to Mr. Duke, enclosing, for his signature, an authorization permitting Valley Forge to obtain additional information from his physician. A signed authorization bearing Duke’s signature then permitted Valley Forge (through The Planning Corporation) to contact Dr. J. D. Landry, which they did on May 3, 1972, asking that he complete a “Diabetes Questionnaire” concerning Mr. Duke and return same to Valley Forge. Dr. Landry responded to this on May 8 in a manner that made it clear that any problem that Mr. Duke had with diabetes was totally overshadowed by the fact that, on May 6, it was discovered that he was suffering from terminal stage cancer.

At this point in describing the existent circumstances, we must go back in time to May 1. On that day, Mr. Duke had been hospitalized as a result of “intestinal obstruction” which, on May 6, required surgical intervention and that surgical intervention resulted in a diagnosis of metastatic adenocarcinoma. Thus, Dr. Landry’s report of May 8 was essentially unconcerned with Duke’s diabetic condition since he was clearly dying of cancer. Though he returned home for a short period of time, Mr. Duke was again hospitalized on May 26 and died on June 1 of Metastatic Carcinoma of Colon.

On May 24, 1972, The Planning Corporation received and transmitted the May 8 memorandum of Dr. Landry to Valley Forge, resulting, on June 21, in Valley Forge notifying The Planning Corporation that Duke’s application was declined because of adenocarcinoma. Based on this notification, The Planning Corporation, on July 5, issued a premium refund check for $157.60.

At the trial, Dr. J. Durel Landry testified (via deposition) regarding all aspects of Duke’s medical history: In August, 1971, he had made arrangements for Mr. Duke’s hospitalization for a “checkup.” Duke was admitted on September 13, 1971, and was, at that time, diagnosed as suffering from “Diabetes Mellitus.” He was discharged on September 16, 1971. Dr. Landry classified Duke as a “mild diabetic” but went on to observe that by April, 1972, his blood sugar was “under control as far as diabetes was concerned.”

Notwithstanding these observations, able counsel for all parties have stipulated that the underwriting department of Valley Forge had not been informed that Mr. Duke had been hospitalized in September, 1971, and thus were unaware that a diagnosis had been made — at that time — indicating that Duke was suffering from diabetes mellitus. It was further stipulated by counsel for all parties that if such information had been disclosed to said department at the time Duke submitted his application, or at any time between the submission of the application and Duke’s death, the application would have been unequivocably rejected in accordance with the company’s standard underwriting practices and guidelines.

The only other testimony adduced was that of Mrs. Harry Duke. She testified that Mr. Duke had “other insurance” besides the insurance which concerns us here and also testified that her husband had never been refused insurance to her knowledge. Finally, Mrs. Duke testified that Mr. Duke had no way of knowing that he had cancer prior to the surgery performed in May, 1972.

The explicit terms of the joint stipulation of counsel regarding the action that would have been taken by Valley Forge if Duke’s September, 1971 hospitalization had, in fact, been made known to them on the application where such information was called for, had, in our view, the legal effect of limiting the scope of Mrs. Duke’s recovery to a single possibility: The time period between the date upon which the application was accompanied by a check properly made payable to the company (March 10) and the date that Mr. Duke knew or should have known that his application was not being routinely accepted (April 26) must fall into the category of such “unreasonable delay” as to support the tort (or delictual) concept previously discussed. Even if that burden is successfully carried, appellants contend that Mrs. Duke must show that Mr. Duke’s ability to have obtained insurance from another source did, concurrently, exist during that period.

We turn our attention to the time period between March 10 (when the properly drawn check was transmitted) and April 26 (when the application was knowingly being held up to await the completion of the “Diabetes Report”). Can this span of 47 days be considered an unreasonable delay?

In Thomas v. Life Ins. Co. of Georgia, 219 La. 1099, 55 So.2d 705 (1951), the Louisiana Supreme Court dealt with a similar time span (April 16 to June 14 — a period of approximately 57 days), but the issue was not directly addressed “since the record fails to show that he (the assured) would have applied elsewhere for insurance or that any company would have issued a policy to him in the condition in which he found himself on and after April 22nd, . . ”

In Harding v. Metropolitan Life Ins. Co., 188 So. 117 (La.App.Orls., 1939), the application for insurance was made on February 12,1929, followed by a physical examination on February 24th. The initial premium had been paid (although there was some question as to the correctness of the exact amount). On May 18, 1929, without confirmation or rejection of the application having been received, the assured died. The court applied the rationale set forth in Strand v. Bankers’ Life Ins. Co., 115 Neb. 357, 213 N.W. 349, holding that “there is a remedy in the form of an action in tort for an unnecessary and negligent delay . if it prevents an insurable applicant from procuring a policy which he would otherwise have received, thus causing a loss.”

In Locke v. Prudence Mutual Casualty Co., 172 So.2d 351 (La.App. 4th Cir., 1965), we affirmed a district court judgment for defendant based upon the inapplicability of the Harding rationale where the time span was similar to that with which we are here concerned and where there were complicating factors somewhat similar to those in this case.

Not entirely satisfied because of the sparsity of Louisiana decisions on this point, we widened our inquiry. However, decisions from other jurisdictions offer little additional help beyond a general indication that appellate courts have, more often than not, followed the trial court’s determination of what does or does not constitute “unreasonable delay.” Most of the cases from other jurisdictions are affirmances, which, regardless of the extent of the delay, hold that the conclusion reached by the trial court was not so erroneous or compellingly in error as to require substitution of the appellate court’s judgment for that of the trial court.

However, in most of those cases, there is no difference of opinion between the appellate court and the trial court regarding the number of days involved in the delay, whereas, in this case, we are strongly of the view that the delay period is only 47 days, while the trial court bases its judgment on a delay period of 74 days.

Taking all factors into consideration, we are of the view that a delay of 47 days is not so unreasonable as to cast Valley Forge in judgment.

Having reached this conclusion, we are not required to turn to a consideration of the case on the basis of the further requirement that appears to be involved from a careful review of Thomas, supra. The Thomas case holds that “even if it be conceded that the company delayed unduly in rejecting (the) application,” there can be no relief if “. . . the record fails to show that he would have applied elsewhere for insurance or that any company would have issued a policy to him . . . ” However, in view of the fact that a reviewing court may reach a conclusion different than ours with respect to the reasonableness of the delay, we feel obliged to address ourselves to the record as it responds (or fails to respond) to the dictates of Thomas, supra:

A diligent and painstaking review of this record forces the conclusion that this critical burden has not even been addressed, much less carried, by appellee. Indeed, the only evidence that we have before us with respect to the decedent’s insurability during the critical period in question is the categoric stipulation by counsel for both parties that a complete disclosure by Mr. Duke of his medical status at the time of application would have, unqualifiedly and unconditionally, resulted in the rejection of his application by Valley Forge.

The record simply does not support the trial court’s statement that Mr. Duke “was misled, to his prejudice, by Valley Forge Life Insurance Company’s failure to act between the time he made application and the time it was discovered he had carcinoma.” There is no such showing. Indeed, the only showing relative to Mr. Duke’s health as of the time that he applied for the insurance coverage is the joint stipulation of counsel which says:

“While the application of Harry Duke under the aforesaid insurance program was being considered, and prior to his death, the aforesaid department had never been informed that Duke had been hospitalized in September, 1971, and that a diagnosis was made at that time that Duke was suffering from Diabetes melli-tus.
“Had this information been disclosed to said department at the time Duke submitted his application, or had said information been otherwise disclosed to said department at any time between the submission of the application and Duke’s death, the application would have been unequivocally rejected, in accordance with the company’s standard underwriting practices and guidelines.”

So, while there is no affirmative evidence whatsoever to support the critical burden enunciated by Thomas, there is solid indication to the contrary effect in the joint stipulation.

Accordingly, the judgment of the 24th Judicial District Court is reversed, and it is now ordered, adjudged and decreed that there be judgment herein in favor of defendant-appellant, Valley Forge Life Insurance Company, and against plaintiff-appel-lee, Mrs. Harry G. Duke, dismissing plaintiff-appellee’s claim. Each party is to bear its own costs.

REVERSED AND RENDERED.

GULOTTA, J., concurs.

GULOTTA, Judge,

concurring.

I concur with the result.

As stated in the majority opinion, the application form states that the insurance applied for will not become effective until the first premium has been paid (March 10) and the insurance company “unconditionally approves and accepts this application”. On April 14, a request was made by the insurer to its agent to secure medical authorization from Duke relating to Duke’s high blood sugar condition referred to in his application form. It was not until April 26 that the request for authorization was sent from the insurer’s agent to Duke to obtain the additional information. As a result of the authorization granted to the insurer by Duke, Duke’s physician was contacted on May 3. The physician’s response on May 8, in which the insurer was advised that Duke was suffering from terminal-stage cancer, obviated the necessity of further pursuit of the inquiry relating to diabetes. Duke died on June 1. The application was denied on June 21, and a refund check was issued to Mrs. Duke on July 5.

I view this as a contract case. Implicit in the application form is that the insurer is afforded opportunity to make inquiries before acceptance or rejection of the contract of insurance. As pointed out by the majority, the insurer is allowed a reasonable time to make inquiries. If the delay is “unreasonable”, the insurer is deemed to have accepted the application.

Applying the chronology of occurrences, I would conclude that the delay in making the inquiry was not unreasonable under the circumstances.

I do not find any compelling reason to discuss whether the facts of our case do or do not come within the ambit of the Thomas case cited by the majority. Accordingly, I do not subscribe to that part of the majority’s opinion which places a burden on plaintiff to show decedent’s insurability. I do not view this case as one sounding in tort (see Thomas), but as one sounding in contract. I concur with the result reached by the majority.

      . The application includes the following question: “Have you or any dependent named ever had or been advised that you had diabetes?” Mr. Duke affirmatively replied to the question and described his “Condition and Treatment” as being: “Diet for High Blood Sugar.” Under the “Degree of Recovery” column, Mr. Duke responded: “Normal Now.”

      . Notwithstanding the fact that the document sent to Dr. Landry was entitled “Diabetes Questionnaire,” all of the queries concerning diabetes were left unanswered except that entitled “prognosis,” which was answered: “poor.” Under the section entitled “remarks," Dr. Landry stated: “This patient was operated on at Southern Baptist Hospital in New Orleans on 6 May 72. He had a low intestinal obstruction. Seeding was found over the entire peritoneum. The original site was not determined — The pathological diagnosis was adenocarcinoma, metastatic.” (Emphasis ours.)

      . In written reasons, the trial judge measured the critical time span by starting on February 23, 1972, when the application — accompanied by the incorrectly drawn check — was received by Valley Forge and ending on May 8, the date of Dr. Landry’s report — a span of 74 days. However, we are of the view that Valley Forge had no duty to commence processing the application until it was accompanied by the proper check which was sent on March 10. Likewise, we are of the view that the letter of April 26, 1972, was a sufficiently clear signal that the application was not going through on a routine basis to notify applicant of this fact.

      . We shall return to a consideration of this very important issue as it is raised in Thomas, supra, at a later point in this opinion.


author: GULOTTA, Judge.

text:
    CENTURY NATIONAL BANK v. Norman PARENT.
    No. 7818.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.

      Frans J. Labranche, Jr., New Orleans, for plaintiff-appellant.
    Norman A. Parent in pro per.
    T. M. McBride, III, Chalmette, for inter-venor-appellant, Bolton Plumbing Supply Co., Inc.
    Cameron C. Gamble, New Orleans, for intervenor-appellee, Kitchens by Cameron.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

This appeal is from a judgment in a rule to determine and rank the rights of a collateral mortgagee and two materialmen in the proceeds of a foreclosure sale under execu-tory process. Plaintiff, Century National Bank, the collateral mortgagee, appeals from that portion of the judgment decreeing that the materialman’s lien of interve-nor-Kitchens by Cameron, Inc. primes the collateral mortgage of the bank. Interve-nor-Bolton Plumbing Supply Co., Inc., the other materialman, appeals from that portion of the judgment dismissing its petition of intervention. We affirm.

The facts are that Norman A. Parent, owner and builder of 1517 Melody Drive, Metairie, Louisiana, borrowed a sum of money from Century National Bank to complete unfinished construction, which had begun in 1973, of a new residence on the said property. The note executed by Parent on December 27,1973, was payable to the bank and was secured by the pledge of a collateral mortgage note paraphed for identification with an act of mortgage on the property and another piece of real property. Plaintiff recorded its mortgage on January 3, 1974. Between February 5, 1974, and March 31, 1974, intervenor-Cameron delivered kitchen and bath cabinets to the construction site. Cameron filed a lien against the property for $2,307.65 on June 6, 1974. Intervenor-Bolton delivered an oven, stove-top and dishwasher to the site on May 7, 1974. Bolton filed its lien in the amount of $599.45 on July 1, 1974. When Parent defaulted on his loan, plaintiff instituted foreclosure proceedings and purchased the property at a Sheriff’s sale on September 25, 1974. On the day before the sale, Cameron filed a petition of intervention seeking to have its lien paid in preference to the collateral mortgage from the proceeds of the sale. Pending a trial on this rule, Bolton also filed a petition of intervention seeking the same relief.

In his reasons for judgment, the trial judge concluded that Cameron had established, under the provisions of LSA-R.S. 9:4801, a valid materialman’s lien which primed the collateral mortgage; but that Bolton had acquired no lien. We agree.

VALIDITY OF THE LIENS

We reject plaintiff’s contention that neither Cameron nor Bolton acquired a lien because the materials had not been purchased “with the consent or at the request of the owner of the property” as required by the statute. Though Cameron sold the cabinets to Brian Scully, a prospective purchaser of the house under construction, Parent, the owner and builder, was fully aware of and gave his consent to the purchase of the materials. There was a provision in the agreement to purchase entered into between Scully and Parent which provided that $600.00 of the stipulated purchase price of the residence to be constructed was to be allowed for kitchen cabinets. The prospective purchaser and the owner agreed that the purchaser would be allowed to purchase whatever cabinets he desired at whatever price, but that he would pay for the excess above $600.00. Parent testified that his (Parent’s) crew had installed the cabinets after they had been delivered. Though the cost of the materials was billed to Scully, it is clear that they had been purchased with Parent’s consent. Furthermore, Parent’s use of the cabinets in a building that he owned constituted a ratification of the purchase contract made by Scully as agent for an undisclosed principal.

With regard to the materials delivered by Bolton, Scully testified that his wife had selected the items with knowledge and consent of a subcontractor. The subcontractor telephoned the order to Bolton and asked that the merchandise selected by Mrs. Scully be delivered to the jobsite. The subcontractor was billed for the cost. We conclude, under the circumstances, Bolton’s materials were purchased with Parent’s consent and the cases cited by plaintiff are factually distinguishable from our situation. Accordingly, we conclude that both Cameron and Bolton have shown sales made with the consent of the owner and deliveries of the materials to the jobsite.

Under our jurisprudence, once a materialman has satisfactorily shown delivery of the material to the jobsite, the burden of proving that the materials were not in fact used in the structure is shifted to the party contesting recognition of the lien. See Hortman-Salmen Co. v. Raymond, 13 La.App. 490, 127 So. 452 (La.App. Orl. 1930); Laney Co. v. Airline Apartments, 223 La. 1000, 67 So.2d 570 (1953); Jim Walter Corporation v. Emanuel, 274 So.2d 867 (La.App. 4th Cir. 1973). Whether given material is “used” in the construction depends upon the nature of the material itself. Certain materials — cement, mortar, plaster, lumber, nails, insulation, shingles and paint — become a part of the structure itself. On the other hand, certain movables are merely attached to the structure itself and these materials are not “used” unless and until they become permanently attached to the construction so as to become immovable by destination. This distinction formed the basis of our decision in Broadmoor Lumber Co. v. Liberto, 162 So.2d 800 (La.App. 4th Cir. 1964), in which we held that a materialman furnishing lumber used in making cabinets was not entitled to a lien because the cabinets were not immovable by destination by virtue of the fact that they could easily be removed without damage either to them or to the structure.

Following the foregoing jurisprudential guidelines, we conclude the trial judge properly found that the materials furnished by Cameron had become immova-bles by destination, unlike those in Broadm-oor which were merely tacked to a strip of plywood nailed to the wall. The cabinets in our case were installed so as to be flush with a soffit. They were screwed or nailed into the studs of the wall; and trim and shoe mouldings were installed around them. Under the circumstances, Cameron has established entitlement to recognition of its materialman’s lien. Bolton, on the other hand, has not. Though Bolton did prove delivery to the jobsite, its materials, i. e., dishwasher, stovetop and oven, were not used in the structure. Though these appliances remained on the premises, they were never installed. The trial judge properly dismissed Bolton’s intervention seeking recognition of a materialman’s lien.

RANKING

Century contends that its collateral mortgage primes Cameron’s lien.

LSA-R.S. 9:4801(C) provides that a mortgagee’s claim will prime a materialman’s lien if “the mortgage has been recorded and the note delivered to the lender before any work or labor has begun or material has been furnished . . ..” (emphasis ours) LSA-R.S. 9:4819(A)(1) reads as follows:

§ 4819. Definition of “before the work or labor is begun or any material is furnished”
“(A) The phrase, “before the work or labor is begun or any material is furnished”, as used in R.S. 9:4801-9:4817, both inclusive, shall be defined as follows:
(1) In the event that the work or construction is new, then “work or labor is begun or material is furnished” is defined as having begun when either excavation has been started so that it can be observed on inspection, or material has been furnished and delivered to the job site which is visible upon inspection and which material when delivered had a value in excess of one hundred dollars provided, however, that test piling shall be excluded from this definition.” (emphasis ours)

As the Supreme Court stated in Hortman-Salmen Co. v. White, 168 La. 1049, 123 So. 709, 711 (1929):

“However, the statute, in this connection, does not look to the time that the claimant, asserting his privilege as fur-nisher of material, began furnishing it. It looks to the time when the work or labor was commenced, or any material was furnished, no matter by whom furnished. * * * ”

See also Capital Bank & Trust Co. v. Broussard Paint & Wallpaper Co., 198 So.2d 204 (La.App. 1st Cir. 1967).

Notwithstanding that Cameron’s materials were delivered after the date of the recordation, other materials had been furnished to the jobsite before recordation of the mortgage. Vincent Catalano testified that he had furnished materials in excess of $100.00 to the site prior to the recordation of the collateral mortgage; and both Parent and Scully testified that the house had been framed before the mortgage was executed. Cameron’s lien primes Century’s mortgage.

We find no merit to plaintiff’s contention that a change in ownership of the property prior to the delivery of the cabinets by Cameron vitiates the effect of the delivery of the materials by Catalano. Though it is true that Catalano had delivered materials prior to September 10, 1973, when Parent acquired the property, the fact remains that Catalano’s materials were delivered to the site and the invoices were billed to Parent in his capacity as general contractor. Despite the change in ownership prior to the delivery of the cabinets by Cameron, the new construction continued. As the court in Capital Bank & Trust Co. v. Broussard, supra, at p. 210, stated:

“[0]nce the material is supplied or labor furnished for the construction with the consent of the record owner at the time the labor is performed or materials supplied, this fact places not only the current owner but also all future purchasers on notice that claims of material-men and laborers properly evidenced, will prime any mortgage subsequently executed and recorded. That the property may change hands subsequent to the start of construction does not have the effect of subordinating legitimate claims of laborers or materialmen to mortgages granted by those who purchase the property and grant a mortgage thereon after work has been commenced by their author in title. That construction begun by a former owner is continued by his transferee does not alter the circumstance that there is essentially one project on which the superiority of laborer’s and material-men’s liens (as opposed to that given mortgage) is determined by whether or not work was begun and material furnished before the particular mortgage creditor recorded his claim. The mortgages of the purchaser can protect his interests (just as the mortgagee of the owner who commences construction) by an inspection of the property to determine whether work has commenced or materials been supplied. If he fails to do so, he proceeds at his own peril. * * ”

Finally, we reject Century’s contention that an intervening tax sale between the date of Catalano’s delivery of materials and Cameron’s delivery deprives Cameron of the right to base its lien (for ranking purposes) on Catalano’s delivery date of materials. Century’s argument is based on LSA-R.S. 33:2870 which provides that a purchaser of tax sale property acquires the property free of all liens and encumbrances.

Assuming, without concluding, the existence of an intervening tax sale, Cameron’s lien, nevertheless, primes the mortgage. The intervening tax sale does not alter the fact that Catalano delivered materials to the jobsite prior to the mortgage recordation. LSA-R.S. 9:4819. A lien is not being asserted by Catalano against the tax sale purchaser for materials furnished to the jobsite by Catalano. The only effect of Catalano’s delivery of materials is to permit a later furnisher of materials to avail himself of the earlier delivery date for lien ranking purposes. Catalano was paid for materials he furnished. Cameron’s lien was not placed on the property prior to the tax sale. Under the circumstances, we conclude that the provisions of LSA-R.S. 33:2870 afford no impediment to the validity of Cameron’s lien or to its ranking higher than Century’s collateral mortgage.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . McCulley v. Dublin Construction Co., 234 So.2d 257 (La.App. 4th Cir. 1970), writ refused, 256 La. 375, 236 So.2d 503 (1970); Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (1962); Security Homestead Association v. Schnell, 232 So.2d 898 (La.App. 4th Cir. 1970).