text:
    Paul P. CAPO, Indiv., et ux. v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY.
    No. 11392.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.

      Donald H. Lee, of Seal, Lee, Branch & Brown, Bogalusa, for plaintiff.
    Michael J. Paduda, Jr., of Gallaspy & Paduda, Bogalusa, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for personal injuries and medical expenses which resulted when plaintiffs’ son was struck by a falling tree. Plaintiffs have appealed the judgment for the defendant.

The issues on appeal are the negligence of the defendant’s insured, and the contributory negligence of plaintiff’s son.

We affirm.

Fourteen year old Pete Capo was working on the farm of defendant’s insured, Stanley Stewart. Mr. Stewart, his younger brother David Earl, their father and Pete were cutting and piling dead trees.

After cutting several trees, the three Stewarts went to the barn to attend to other business. Pete took the tractor and began to round up the cows for milking.

When he had finished this task and after David Earl had rejoined him, Pete backed the tractor up to a dead tree. He hooked a chain to the tree and pulled; the tree fell on him, causing severe head injuries necessitating hospitalization for several weeks.

The trial court found that the defendant’s insured was negligent in allowing a fourteen year old boy to use the tractor without supervision. However, the actions of the youth were contributorily negligent and barred any recovery by the plaintiff.

We pretermit the question of Mr. Stewart’s negligence because we believe Pete was guilty of contributory negligence. The lower court found, and correctly so, that Pete was aware that it was dangerous to fell a dead tree with a chain pulled by a tractor. Both Mr. Stewart and his father had warned Pete that he should never try this. David Earl testified he gave Pete a similar warning just minutes before the accident. We find no manifest error in the court’s conclusion that Pete had been adequately warned of the danger.

Plaintiff contends that young Pete was a slow learner and therefore should not be held to such a high standard of care. The test is whether the particular child, considering his age, background and inherent intelligence, grossly disregarded his own safety in the face of a known, understood and perceived danger. Simmons v. Beauregard Parish School Board, La.App., 315 So.2d 883 (3rd Cir. 1975), writ refused La. 320 So.2d 207. Children twelve to fourteen years of age are capable of contributory negligence. Patterson v. Recreation and Park Commission for the Parish of East Baton Rouge, La.App., 226 So.2d 211 (1st Cir. 1969).

Pete had been driving tractors at the Stewarts’ farm for over six months. Mr. Stewart and his father both considered Pete to be knowledgeable with regard to handling the machine. They trusted his skill and judgment, as evidenced by their allowing him to use the tractor while they went to the barn.

Plaintiff, to prove that Pete was a boy of less than average intelligence, adduced evidence that Pete had been held back in school twice. His parents said they considered him to be a slow learner. This falls far short of proving he was incapable of contributory negligence. The evidence shows that he had considerable experience in driving a tractor; he had been warned of the probable consequences of pulling over trees with a tractor and was aware that what he was doing was dangerous.

The court awarded the plaintiff $1,000.00 under the medical payment clause of the insurance policy. No appeal was taken from that award; that portion of the judgment is final.

For the above reasons the judgment of the trial court is affirmed; plaintiff is cast with all costs of this appeal.

AFFIRMED.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Ray E. POPE d/b/a Franklinton Mobile Homes v. Ellis E. SPIERS.
    No. 10555.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      France W. Watts, III, of Watts & Cassi-dy, Franklinton, for plaintiff.
    Jim W. Richardson, Jr., Bogalusa, for defendant.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Margie Lowe Pope, Joy Marie Pope Jones and Virginia Ann Pope, (Plaintiffs), substituted as parties herein in the capacities of widow and heirs, respectively, of deceased petitioner, Ray E. Pope, appeal from judgment awarding Ellis E. Spiers, (Defendant), judgment for damages and attorney’s fees for the wrongful seizure of a truck belonging to Defendant, a millwright-welder. Defendant has also appealed praying for an increase in attorney’s fees and an award for lost wages, which claim was rejected below. The trial court awarded Defendant $250.00 damages for humiliation and embarrassment and $250.00 attorney’s fees. We amend the judgment to award Defendant recovery of lost wages, and an increase in attorney’s fees.

Three issues are presented: (1) Was Defendant’s truck exempt from seizure as a tool of Defendant’s trade as millwright-welder; (2) If the truck was exempt, is Defendant entitled to damages for lost wages; and, (3) Should there be an increase in the award of attorney’s fees.

On June 3, 1971, Plaintiff seized a 1969 Chevrolet pick-up truck belonging to Defendant, in execution of a deficiency judgment. Defendant reconvened for an injunction to release the vehicle, for damages for its wrongful seizure on the ground the vehicle was exempt from seizure as a tool of Defendant’s trade, and for attorney’s fees incurred to dissolve the seizure. The truck contained a tool box in which Defendant kept the tools of his trade as millwright-welder. The vehicle and Defendant’s tools remained under seizure through July 16,1971, which seizure was lifted upon the trial court finding the truck and tools were exempt from seizure.

At the time of the seizure, Defendant was living in Bogalusa, Louisiana, with his parents. Defendant’s father, a millwright, owned a truck. Defendant’s mother, who worked at a school lunchroom in Bogalusa, also owned a vehicle. Defendant, a member of Millwright Local 1931, Bogalusa, was signed up as available for work on May 17, 1971. In early June, 1971, W. H. Lowe, Business Agent of Local 1931, called Defendant and offered him work as a welder at a project in Reserve, Louisiana, approximately 90 miles distant from Bogalusa. Defendant declined the work because his truck was under seizure and he had no means of transportation. During this interval, Local 1931 had two other welders listed as available for work; one lived in Metairie, Louisiana, the other in Luling, Louisiana. Also, during this same interval, Defendant’s father was listed by Local 1931 as available for work as a millwright, but there were no openings for millwrights on the Reserve, Louisiana job. The prevailing wage for welders was then $6.35V2 per hour for a 40 hour week, double wages being paid for overtime.

On September 1, 1971, Defendant accepted work at Reserve, as a welder, after Defendant’s truck was released from seizure. The record shows that work was available to Defendant as a welder, at Reserve, during the time his vehicle and tools were under seizure.

Defendant testified to the effect that work was available to him at Reserve during the seizure period, but he could not accept the employment because he had no means of transportation. He conceded that as a welder, he had to furnish only his own shield (protective visor), gloves, leather sleeves, chipping hammer and a 12 inch crescent wrench, and that all other welder’s tools were furnished by his employers. He stated he received a call to work about 10 days after the seizure, but could not accept. He recovered his tools July 16, 1971, at which time he was completing a job of building a fence for a landowner. He signed up with the local again on July 26, 1971, but contracted tonsilitis the next day. During August, 1971, he was unable to work because of his having undergone a tonsillectomy and recurring episodes of hemorrhaging, which required hospitalization and recuperation. On August 30,1971, he was released by his doctor. He signed up for work August 31, 1971, and began working at Reserve the following day.

We initially find the trial court properly hold that Defendant’s truck and tools were exempt from seizure as tools of Defendant’s trade as millwright-welder. In this regard, it is shown that as a millwright-welder, Defendant must possess numerous tools which require a vehicle to transport, although the tools which Defendant requires as a . welder would not alone require a vehicle to move from job to job and to work each day.

The trial court held that Defendant failed to take available reasonable measures to mitigate loss of wages by failing to secure other means of transportation for work at Reserve, Louisiana. The trial court based its finding on the ground that Defendant failed to establish lack of availability of either of the vehicles owned by Defendant’s parents, and also on the finding that Defendant’s welding tools did not require a vehicle for transportation.

It is well established that a tort victim must take advantage of available reasonable measures to mitigate his losses. Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971); McKinnon v. Caddo Parish Policy Jury, 262 So.2d 834 (La.App.2d Cir.1972).

We find the trial court erred in applying the pertinent law to the facts of this case. Besides Defendant’s truck being under seizure and unavailable for transportation, Defendant’s welder’s tools were on the truck and Defendant was denied access thereto. That Defendant’s parents each owned a vehicle does not necessarily mean Defendant could have access to either vehicle for a daily 180 mile round trip to work. Additionally, assuming Defendant obtained transportation, it would have been necessary for him to purchase the welding tools Defendant was obliged to provide. Granting such tools did not require a vehicle to transport, we deem it unreasonable to require Defendant to duplicate these required tools, especially in the absence of a showing that such tools were obtainable at nominal cost.

From the record, we find that had not Defendant’s truck and .tools been wrongfully seized, Defendant could have been gainfully employed as a welder for a six week period subsequent to June 10, 1971. During this period, he would have earned a weekly wage of $254.20, or a total of $1,525.20, which he is entitled to recover.

Considering the nature of this case and the fact that counsel for Defendant has been required to prosecute this appeal, we find an award of attorney’s fees in the sum of $500.00 to be in order.

The judgment of the trial court is amended and judgment rendered herein in favor of Defendant Ellis E. Spiers and against Plaintiffs Margie Lowe Pope, Joy Marie Pope Jones and Virginia Ann Pope, in soli-do, in the sum of $1,775.20, as damages, and the further amount of $500.00 as attorney’s fees, with legal interest thereon from date of judicial demand, until paid; all costs of these proceedings to be paid by said Plaintiffs.

Amended and rendered.


text:
    Creola GIVENS v. NATIONAL TEA COMPANY.
    No. 11323.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Joel B. Dickinson, Baton Rouge, of counsel for plaintiff, Creóla Givens, appellant.
    William M. Barnett, New Orleans, of counsel for defendant National Tea Co., ap-pellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment rejecting her demands for damages for personal injuries allegedly sustained when she slipped and fell while shopping for groceries in a supermarket owned and operated by defendant National Tea Company (National). We affirm.

The reputed accident occurred at about 3:30 P.M., on a Sunday afternoon after Appellant and her common-law husband, Johnnie George, had been shopping for approximately one and one-half hours. Appellant and George contend that Appellant slipped on one or more grapes which were on the floor. At the time of the fall Appellant was selecting a can of peas from a shelf.

Appellant maintains she was walking about 10 feet behind George who was proceeding ahead pushing a shopping cart. The couple had just about finished their shopping and were preparing to leave the store shortly. Appellant stated she was selecting a can of peas when she slipped and fell to the floor. She landed on her back with her right leg beneath her body and her left leg extended forward. She was assisted to her feet by her consort who then brought her to the Manager’s office at the front of the store. George then brought her to the scene of the fall and showed her one or two grapes on the floor. The grapes appeared to have been stepped on. At trial, Appellant testified she fell in the aisle where canned goods (peas) were shelved. In a statement given at the time of the accident, she stated she fell in the produce aisle, which is two aisles removed from the aisle mentioned by Appellant, and which is also where grapes are displayed for sale. She maintained she frequently shopped in this particular store because, among other reasons, she always found it neat and clean. After being shown the grapes on the floor, she and George paid for their groceries and left the store.

In substance, George’s testimony corroborates that of Appellant. He stated, however, that Appellant fell in the produce aisle, not the canned goods aisle. He also stated he was walking ahead and upon looking back, he saw Appellant falling to the floor. He assisted Appellant to her feet, brought her to the manager’s office and then escorted a store employee to the scene of the fall and showed him some grape's on the floor. He returned to, the front of the store, paid for the groceries he and Appellant had selected, and he and Appellant left the store. He stated the grapes he observed on the floor appeared to have been stepped on.

John Blank, National’s Manager, and Lonnie Breaux, former Assistant Manager not in National’s employ at the time of trial, testified in detail as to the store’s policy concerning floor inspection and cleaning. They attested to inspection by person in charge of the store, every two hours during the entire 24 hours the store is open daily. They also noted that any condition of the floor or aisles brought to the attention of the Manager or Assistant Manager is corrected immediately. They also noted it is the duty of the person in charge to make the inspection every two hours and see that the floor and aisles are swept and cleaned even if the person in charge has to do it himself. Breaux added that he personally swept the store at 4:00 P.M., at which time no accident had been reported. He recalled the accident was reported shortly after 5:00 P.M., at which time he was in charge, because Blank left after Breaux completed sweeping the floor around 4:00 P.M. Blank also noted that the accident had not been reported when he left around 4:00 P.M., and was relieved by Breaux. Blank returned about 6:00 P.M., and was informed of the accident report. Breaux added he was taken to the scene by George and found nothing on the floor of the produce aisle. He then went to the canned goods aisle where he found one or two grapes on the floor. He saw no evidence that the grapes had been stepped on. He found no skid marks or foot prints on the floor where he found the grape skins. He examined the sole of Appellant’s shoe and found nothing.

Eugene McKee, Manager of National’s meat department, was in the office at about 5:15 making a telephone call preparatory to his leaving shortly thereafter. He stated that George came to the office and reported the accident. McKee referred George to Breaux. George escorted McKee to the canned goods aisle and showed McKee a piece of grape, about the size of McKee’s thumb, on the floor. McKee saw only the peeling of a grape which appeared to have been eaten. The peeling did not appear to have been stepped on. McKee did not observe any scuff mark or footprint on the floor where he saw the grape skin. He attested to Breaux’s sweeping the floor about 4:00 P.M. He also stated he had never before seen Appellant or George in the store, and that the couple had no groceries with them when they left the establishment.

An owner of a store is not the insurer of the safety of his customers. Nevertheless, a store owner owes his customers the duty of protecting them from dangerous substances on his floors and in his aisles. This obligation includes the duty to take reasonable precautions, by way of periodic inspection and cleanup procedures, to keep the floors and aisles free from substances and objects which may cause customers to fall. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976).

The reasonableness of inspection and other safety and protective measures taken by a storekeeper depend upon the circumstances of each case. In determining this issue, the courts will consider the volume of merchandise, type of floor, the nature of customer service and the area of floor space utilized for customer convenience and service. Gonzales v. Winn-Dixie, above.

Where the customer establishes an accident resulting from an unsafe condition of the storekeeper’s floor or aisles, the burden shifts to the storekeeper to exculpate himself from the presumption of negligence resulting from such condition. Kavlich v. Kramer, 315 So.2d 282 (La.1975); Gonzales v. Winn-Dixie, above.

Appellant maintains the doctrine of Res ipsa loquitur should have been applied in this instance because the trial court found the accident occurred. Gonzales v. Winn-Dixie, above, expressly held that Res ipsa loquitur does not necessarily apply in slip and fall cases. The cited authority reiterated the rule that Res ipsa loquitur is a rule of evidence which normally comes into play, if at all, at the conclusion of the trial, and is applicable in any negligence action when the circumstances suggest defendant’s negligence as the most plausible cause of the accident.

The trial court held that while it felt Appellant had probably established the occurrence of an accident, it also found National’s inspection and cleanup policy and practices were reasonable and that it had borne the burden of exculpating itself from any inference of negligence which may have arisen in this instance. We find the trial court’s determination eminently proper under the circumstances.

The judgment is affirmed at Appellant’s cost.

AFFIRMED.


text:
    GOVERNMENT EMPLOYEES INSURANCE CO. et al. v. Roosevelt THOMPSON et al.
    No. 11501.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.

      A. Clay Pierce, Jr., Baton Rouge, for appellants.
    Michael 0. Hesse, Baton Rouge, for Thomas.
    Shelby Easterly, Baton Rouge, for De-cuir.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Defendant, Clifford Decuir (Movant) has moved dismissal, for alleged failure to file an appeal bond, of the appeal taken herein by plaintiffs Government Employees Insurance Company, Frederick J. Prejean and Ola S. Prejean (Appellants) from judgment dismissing their tort action against Movant. We deny the motion to dismiss.

This matter arises from an automobile accident. Named defendants are Jimmie D. Thompson, Clifford Decuir and Decuir’s alleged employer, Mercury Moving & Storage Co., Inc. Trial on the merits resulted in judgment in favor of plaintiffs as prayed for, against defendant Jimmie D. Thompson and dismissal of plaintiffs’ claims against Decuir and Mercury.

Appellants timely applied for a devolu-tive appeal from that portion of the judgment rejecting their demands against De-cuir and Mercury. Appellants also timely posted an appeal bond naming A. Clay Pierce, Jr. as principle and Charles N. Malone, as security, said parties being Appellants’ counsel of record. The bond pertinently recites:

“For the payment whereof, we bind ourselves as follows, to-wit: Whereas the above bounden principal, A. Clay Pierce, Jr., asked for and obtained an order of appeal from the final judgment rendered against plaintiffs in part in the suit of Government Employees Insurance Company, et al versus Roosevelt Thompson, et al . . . .”

Movant contends that since the Appeal bond names Appellants’ attorneys as principal and surety, neither of whom are parties litigant, it is as though no bond whatsoever was filed and the appeal must be dismissed. In so urging, Movant relies upon Succession of Richardson, 26 La.Ann. 187 (1874) in which an appeal granted Elizabeth McQueen and others was dismissed because the bond was signed by M. McQueen as principal and Charles B. Austin, as surety.

As suggested by Movant, the timely filing of an appeal bond is jurisdictional. Something Irish Co. v. Rack, 333 So.2d 773 (La.App. 1st Cir. 1976).

The precise question presented here was answered adversely to Movant’s contention in Arrow Construction Co., Inc. v. American Employers Insurance Company, 273 So.2d 582 (La.App. 1st Cir. 1973). In the cited case we held the question presented was one of sufficiency of an appeal bond as distinguished from failure to file a bond.

As noted in Arrow Construction, above, LSA-C.C.P. Article 2088 provides that when an appeal is perfected by the filing of bond, the trial court retains jurisdiction to consider all objections as to the form, substance and sufficiency of the bond. LSA-C.C.P. Article 5123 adds that a party desiring to test the validity or sufficiency of an appeal bond shall rule into court the party furnishing bond to show cause why the bond should not be declared invalid or insufficient. LSA-C.C.P. Article 5124 provides the manner and delay during which an Appellant may cure a declared insufficiency or invalidity in his appeal bond.

An appeal will not be dismissed because the bond is insufficient or invalid unless the issue is first resolved in the trial court and Appellant afforded opportunity to cure the defect. Arrow Construction Co., Inc., above, and authorities cited therein.

Jurisdiction to test either the validity or sufficiency of an appeal bond rests exclusively in the trial court. Arrow Construction Co., Inc., above.

The motion to dismiss is denied at Movant’s cost.

Motion denied.


author: EDWARDS, Judge. COLE, Judge,

text:
    CYPRESS INSURANCE AGENCY, INC. v. AQUA BLAST SERVICE CO., INC., of Louisiana.
    No. 11256.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Walton J. Barnes, II, Baton Rouge, for appellant.
    Robert A. Hawthorne, Jr., Baton Rouge, for appellee.
    Before LANDRY, SARTAIN, CHIAS-SON, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit by Cypress Insurance Agency, Inc. (Cypress), against Aqua Blast Service Company, Inc., of Louisiana (Aqua Blast), for the balance due on an open account of $2,567.79. The trial court granted a motion for summary judgment in favor of Cypress. From this judgment, Aqua Blast has appealed and has urged in this court, for the first time, the peremptory exception raising the objection of no right of action.

The petition filed by Cypress alleges that Cypress sold and delivered certain “merchandise” listed on an attached account record, to Aqua Blast. This account record discloses that the merchandise consisted of various policies of insurance. Further, the petition states that Aqua Blast has refused to pay the balance due on this merchandise. Aqua Blast filed a general denial to the petition. Thereafter Cypress filed a motion for summary judgment, which motion was granted by the trial court.

After the appeal was lodged in this court, but prior to submission of the case for a decision, Aqua Blast filed the peremptory exception raising the objection of no right of action alleging that an insurance agent cannot maintain an action in its own name for a premium due its principal. We consider this exception under the authority provided in LSA-C.C.P. art. 2163 as the attached account record makes it clear that plaintiff is suing to collect for insurance premiums. Therefore, the ground of the exception does appear of record.

The general rule recognized in Louisiana states that the insurer, not the agent, is the proper party to sue for premiums due on an insurance policy unless the agent has paid the company for the premiums or has become personally liable therefor, in which case the agent can sue for the premiums in his own name. Perrin v. Saunders, 198 So.2d 555 (La.App. 4th Cir. 1967); Janvier & Co., Limited v. Fritz, 180 So. 172 (La.App.Orl. Cir. 1938). cf. 44 C.J.S. Insurance § 358e.

We find nothing in the record from which any inference could be drawn that Cypress became subrogated to the insurer’s right to collect the premiums sued for. Therefore we hold that the general rule, stated above, applies and that plaintiff’s petition as presently drawn does not disclose a right of action.'

We do not reach the alleged errors in the summary judgment procedure in view of our above holding on defendant’s exception of no right of action.

Rather than dismiss the present suit, we believe the interests of justice would best be served by allowing the plaintiff, if he can, to amend his petition to state a right of action. LSA-C.C.P. art. 934.

For the foregoing reasons, the judgment appealed from is annulled and set aside, and there will be judgment herein in favor of defendant decreeing that plaintiff’s petition does not disclose a right of action against defendant.

Further it is ordered, adjudged and decreed that the plaintiff shall have leave to amend his petition, if he can, so as to state a right of action within twenty days of the finality of this judgment.

It is further ordered, adjudged and decreed that this matter be remanded to the trial court for further proceedings according to law with instructions to dismiss plaintiff’s suit in the event his pleadings are not timely amended in accordance herewith.

Costs of this appeal shall be paid in equal proportions by the appellant and appellee; liability for all other costs are to await final disposition of the case.

JUDGMENT ANNULLED; CASE REMANDED WITH INSTRUCTIONS.

COLE, J., concurs with written reasons.

SARTAIN, J., concurs for reasons assigned by COLE, J.

COLE, Judge,

concurring.

I concur in the result of the majority opinion for the following reasons.

The majority sustains the peremptory exception raising the objection of no right of action and remands to allow plaintiff the opportunity to amend its petition to overcome the objection. I would overrule the peremptory exception and remand on other grounds.

The objection of no right of action raised through the peremptory exception asserts that there is a class or group of plaintiffs to whom the law would permit recovery, but the plaintiff does not belong to that class. Thus, there is a want of interest, or no right of action. In this case plaintiff has made prima facie allegations of a right of action, i.e., it has alleged that it is the seller of merchandise to a defendant who has failed to pay the purchase price. There can be no doubt that the seller of merchandise ordinarily belongs to the class of people to whom payment of the purchase price must be paid.

However, there is an established line of cases in Louisiana holding that the insurer, and not the agent, is the proper party to sue for premiums due on an insurance policy unless the agent has paid the insurer for the premiums or has become personally liable therefor. See Commercial Insurance Agency v. Wilson, 293 So.2d 246 (La.App. 3rd Cir. 1974); Cusimano, Inc. v. Cusimano, 216 So.2d 344 (La.App. 4th Cir. 1968); Perrin v. Saunders, 198 So.2d 555 (La.App. 4th Cir. 1967); Janvier & Company, Limited v. Fritz, 180 So. 172 (La.App.Orl. Cir. 1938). The effect of this line of cases is that the class of plaintiffs to whom payment is due for the sale of insurance policies is either (a) the insurer, or (b) the agent who has paid or become obligated to pay the premiums. Accordingly, if Cypress has not paid or assumed liability for the premiums, it has a want of interest and no right of action to recover.

We may consider the peremptory exception filed for the first time in this court but only “if proof of the ground of the exception appears of record.” LSA-C.C.P. art. 2163. The exception is a means of defense. LSA-C.C.P. art. 921. When evidence is needed to sustain the defense, it is incumbent upon exceptor to bring forth such evidence.

In this case there is insufficient proof of the ground of the exception in this record. There is no direct evidence of payment or non-payment by Cypress, the agent. There is no direct evidence that the agent has or has not become liable for payment. Certainly, we may not take judicial notice that an agent never pays or assumes liability for the payment of premiums, nor may we draw any strong inference either way in this case. We may infer that the agent has not paid because one usually does not pay the debt of another. However, the statement of account does not reflect any credit for cancellation of certain policies. It is equally reasonable to infer that the insurer did not cancel these policies because payment had been received from the agent, who elected to extend credit to and retain good relations with his customer, the insured.

While the Code permits the filing of the peremptory exception on appeal, we may consider it only if proof of the ground of the exception appears in the record. I deem it improper to sustain it on a record which does not contain sufficient proof of the ground.

This does not mean that the result is incorrect. Because of the line of eases cited above, plaintiff could not recover until it established at the trial that it had paid the insurer the amount of premiums for which it sought recovery from defendant or that it had become liable therefor. The party making the motion for summary judgment carries the burden of clearly proving the absence of any genuine issue as to all material facts, and all reasonable doubts must be resolved against him. George & George, Ltd. v. Bennett, 329 So.2d 793 (La.App. 1st Cir. 1976). The failure of plaintiff to establish by affidavit or other evidence admissible under summary judgment proceedings that he paid the premiums results in the conclusion that summary judgment was improper because there was, and still remains, a genuine issue of material fact.

I would overrule the peremptory exception urging the objection of no right of action, reverse on the grounds that the summary judgment was improvidently granted, and remand to the trial court for further proceedings.


author: EDWARDS, Judge.

text:
    Ronald J. HAYDEL v. Philip Henry CLARK, et al.
    No. 11258.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      James C. Walker, Houma, for plaintiff and appellee.
    Leon E. Roy, Jr., New Iberia, for defendants and appellants.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit by Ronald J. Haydel against Philip Henry Clark and Bennie G. Williams to enforce their obligations arising under Continuing Guaranty agreements executed by them in favor of the Bank of Terrebonne and Trust Company. After trial on the merits, judgment was rendered in favor of Haydel, against Clark and Williams in soli-do, in the amount of $31,705.06 plus interest and attorney’s fees. From this judgment, the defendants have appealed.

An examination of the record discloses the following facts.

The three parties to this suit became acquainted in early 1970 and subsequently formed a corporation, Southern Tubing Rentals, Inc., to engage in the pipe rental business. Plaintiff and defendants each owned one-third (Vs) of the stock in the corporation and each was a member of the Board of Directors. Haydel’s function was to arrange the financing of the corporation while the actual management was to be left to the defendants, primarily Williams.

In order to secure the necessary financing, each party, plaintiff and the defendants, executed a continuing guaranty on June 4, 1970 in favor of the Bank of Terre-bonne and Trust Company securing amounts to be loaned by that bank to the corporation up to $100,000.00.

On December 7, 1970, the corporation through its president, Williams, issued a promissory note in the sum of $76,698.00 payable to the order of “myself” and endorsed in blank. The note was payable in 36 monthly installments of $2,130.50 each at 8% per annum interest; and provided for 20% attorney’s fees, on principal and interest, in case the note was placed in the hands of an attorney for collection. An acceleration clause was contained in the note which provided that the entire balance of the note would become due, at the option of the holder, if one or more installments were not paid. Additional security for the note was furnished through a chattel mortgage on oil well drill pipe and equipment owned by the corporation.

The corporation was active for only a brief time. During that time, no formal meetings of the Board of Directors or of the stockholders were held.

The corporation paid several installments on the note, but eventually defaulted in its payments. The last payment was made May 21, 1971.

When the bank’s efforts to have the corporation resume payments failed, the bank called upon Haydel, Clark and Williams to honor their continuing guaranties. Haydel alone responded.

On August 31, 1971, Haydel made an interest payment of $1,320.00 on the note. He also tried to contact Clark and Williams to get them to assist him in paying the note, but to no avail. Finally on February 8, 1972, Haydel, bound by his personal obligation under the continuing guaranty, purchased the note from the bank for the amount then due, $62,971.92. The bank delivered the note, the chattel mortgage securing the note, and the continuing guaranties to Haydel.

Thereafter, Haydel periodically checked with Clark and Williams about payment on the note; and each time was assured that a “big job” was forthcoming that would provide funds to liquidate the sums due. The big job never materialized and Haydel received no payment on the note.

Meanwhile, Gerald Loring, president of Hydraulic Workover, Inc., approached Hay-del in an effort to purchase the drill pipe owned by the corporation. This pipe was encumbered by the chattel mortgage securing the corporation’s note. Haydel responded that the pipe was for sale; and that he would have Williams, the president of the corporation, contact Loring regarding the sale.

Haydel contacted Williams and told him of Loring’s inquiry. Williams said that he would get in touch with Loring and make a deal to sell the pipe. However, Williams never got in touch with Loring.

When he did not hear from Williams, Loring again contacted Haydel about the pipe. Haydel told Loring that he was a one-third (V3) stockholder of the inactive corporation and had a right to sell the pipe on behalf of the corporation. Thereupon Loring made a purchase offer of $0.75 per foot which was accepted by Haydel. Lor-ing made a tally sheet on the pipe and computed the sale price as $16,734.33.

A bill of sale was executed which stated that the pipe was being sold by Southern Tubing Rentals, Inc., represented by Ronald Haydel its duly authorized officer, to Hydraulic Workover, Inc. The bill of sale also contained an intervention paragraph drafted for the signatures of Clark and Williams, the remaining stockholders of the corporation, but neither signed the bill of sale.

Loring paid the $16,734.33 purchase price with his personal check. This check was made payable to Haydel and deposited by him into his personal account.

Williams found out about the sale when Loring picked up the pipe from the yard where it was stored. He did not inquire about or raise objections to the sale. Clark found out about the sale a few days after it was consummated. He likewise did not inquire about or object to the sale.

Thereafter, Haydel again attempted to have Clark and Williams pay their proportionate share of the corporation’s debt. When he received no response, the present suit was instituted.

The defendants contended at trial that Haydel sold the mortgaged pipe as mortgage creditor of the corporation at private sale without appraisal, thereby discharging the balance of the debt under the provisions of the Deficiency Judgment Act, LSA-R.S. 13:4106.

The trial court rejected defendants’ contention and held that the pipe was sold by Southern Tubing Rentals, Inc., and not Haydel. Further the trial court found that Haydel negotiated the sale in his capacity as shareholder and director of the corporation, and not in his capacity as mortgagee-creditor. Accordingly, the court held that the Deficiency Judgment Act was inapplicable to the facts of the present case. Therefore, Clark and Williams were accountable to plaintiff for the corporation’s debt under the continuing guaranty agreements, with a credit for the sum realized by the sale of the pipe.

The central issue presented for review is the correctness of the trial court’s factual conclusion that the corporation, not Haydel, sold the drill pipe to Loring and, corollary thereto, the applicability of the Deficiency Judgment Act.

Initially, we note that the findings of the trial court, as the trier of fact, are entitled to great weight and will not be disturbed unless they are manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Aetna Casualty & Surety Co. v. Continental Insurance Co., 308 So.2d 489 (La.App.1st Cir. 1975). Under this standard of review, we must examine the evidence and testimony in the record to determine if there is a reasonable basis to support the factual conclusions reached by the trier of fact.

The record clearly shows that Hay-del’s actions belie the existence of an intent on his part to dispose of the mortgaged assets of the corporation in his capacity as creditor. When he was first contacted by Loring regarding the sale of the pipe, Hay-del stated that negotiations for the sale should be conducted with Williams, the president of the corporation. Indeed, Hay-del contacted Williams and informed him of Loring’s interest in purchasing the pipe. Haydel received Williams’ assurance that he would get in touch with Loring and make a deal for the sale of the pipe.

It was only when Loring called the second time that Haydel realized that he would personally have to take some action on behalf of the corporation in order to avoid losing the sale. During this conversation, Haydel stated that as a stockholder and director of the corporation he had a right to sell the pipe on behalf of the corporation. The bill of sale states clearly that the pipe is being sold by Southern Tubing Rental, Inc., the corporation.

The only evidence, even hinting that Haydel might be the vendor of the pipe, is the fact that the check representing the purchase price was made payable to him personally and deposited, by him, in his personal account. Haydel’s explanation was that he wanted the check, drawn on Loring’s personal account, to clear the bank as quickly as possible and that to obtain Williams’ endorsement would have taken additional time. We believe that this explanation, coupled with the evidence in the record of the inaccessibility of Williams, validates Haydel’s actions as an agent of the corporation.

Defendants argue that Haydel’s actions in selling substantially all of the assets of the corporation were not authorized and violated the provision of LSA-R.S. 12:121. We do not reach this contention, as we fail to see how Haydel’s lack of authority would absolve the defendants of their obligations under the guaranty agreements. Whether or not the sale was properly authorized, the evidence in the record indicates that the intended vendor of the pipe was the corporation.

Clearly there is ample evidence in the record to support the trial judge’s conclusion that the corporation was the vendor in the sale of the drill pipe. Canter, supra.

The Deficiency Judgment Act by its own terms, only covers sales of encumbered property by the “mortgagee or other creditor.” Accordingly, the Act has no application to the present case since the mortgaged property was sold by its owner, the corporation, and not by a “mortgagee or other creditor.”

The defendants are therefore liable under the terms of their continuing guaranty agreements for the corporation’s debt.

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

AFFIRMED.

      . The genuineness of the guaranties and the corporation’s promissory note is not disputed.

      . LSA-R.S. 13:4106
      If a mortgagee or other creditor takes advantage of a waiver of appraisement of his property, movable, immovable, or both, by a debtor, and the proceeds of the judicial sale thereof are insufficient to satisfy the debt for which the property was sold, the debt nevertheless shall stand fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor. The mortgagee or other creditor shall not have a right thereafter to proceed against the debtor or any of his other property for such deficiency, except as provided in the next paragraph.
      If a mortgage or pledge affects two or more properties, movable, immovable, or both, the judicial sale of any property so affected without appraisement shall not prevent the enforcement of the mortgage or pledge in rem against any other property affected thereby. As amended Acts 1952, No. 20, § 1; Acts 1960, No. 32, § 1. (emphasis added)


text:
    Darrell D. CVITANOVICH v. John SORLI.
    No. 11317.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.

      Warren E. Burch, Jr., Baton Rouge, for defendant-appellee.
    R. Gray Sexton, Baton Rouge, for plaintiff-appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is an appeal from a default judgment.

On April 21, 1976, Darrell Cvitanovich, the assignee of certain rent accounts, filed this suit, in proper person, against John Sorli to collect the sum of $195.00 allegedly due as unpaid rent. Additionally, Cvitano-vich caused a writ of sequestration to be issued which resulted in the seizure on April 26, 1976 of certain movable property belonging to Sorli.

Service was not made on Sorli until October 1, 1976. That same day, Sorli obtained the release of the sequestered property by furnishing a bond. On October 8, 1976, Sorli filed an answer and a reconventional demand seeking damages for wrongful seizure. Thereafter Cvitanovich was personally served with the answer and reconven-tional demand on October 11, 1976. Cvita-novich did not file an answer to this recon-ventional demand.

After the proper legal delays, on October 21,1976, Sorli personally appeared, testified and submitted into evidence cancelled checks showing that the alleged unpaid rent had, in fact, been timely paid. Sorli further testified regarding his damages resulting from the seizure of his property. The trial court found that this was sufficient proof upon which to grant a default judgment.

Thereafter judgment was rendered in favor of Sorli granting judgment against Cvi-tanovich on the reconventional demand in the amount of $999.99 and $250.00 for attorney’s fees. The judgment also dissolved the writ of sequestration previously issued.

Cvitanovich contends that the trial court erred in considering Sorb’s reconventional demand since it was not properly pleaded. He cites LSA-C.C.P. articles 853 and 1032 in support of this contention.

An examination of the pleadings in the record reveals that Sorli’s reconventional demand was filed in the same pleading as his answer to the principal demand. This pleading is designated “Answer in Suit for Money Judgment with Sequestration.”

Initially we find that this pleading sets forth a specific demand coupled with a specific prayer for relief against Cvitano-vich and that the reconventional demand meets the requirement that it set forth the defendant’s claim with the same precision as would be required in a petition filed originally for the same cause of action. Lewis Chevrolet Company v. Whitener, 122 So.2d 880 (La.App. 3rd Cir. 1961).

Cvitanovich maintains that the failure of Sorli to designate properly his recon-ventional demand constitutes reversible error. We disagree.

The law is clear that a pleading is to be governed by its substance and not by the name which a party uses to designate his demand, or the failure to designate it by any name at all. Person v. Person, 172 La. 740, 135 So. 225 (1931).

In Succession of Smith, 247 La. 921, 175 So.2d 269 (1965), it was noted:

“The characterization of a pleading by the litigant is not controlling. Pleadings are taken for what they really are, and not for what their authors designate them. A court should not eject a justicia-ble cause merely because it is dressed in the wrong coat.” (footnote omitted).
Additionally, LSA-C.C.P. art. 865 states: “Every pleading shall be so construed as to do substantial justice.”

We do not find that the erroneous designation prejudiced Cvitanovich since even a cursory glance at the pleading would have disclosed to him that it contained a recon-ventional demand. Also, we note that Cvi-tanovich received service of citation which informed him that he was required to answer within 5 days. Accordingly, we reject the first specification of error.

Secondly, Cvitanovich contends that there is insufficient proof in the record to support a default judgment.

The only evidence in the record consists of the cancelled checks used to prove that the alleged unpaid rent had, in fact, been paid. Sorli’s testimony at thé default hearing was not transcribed and is not in the record.

In cases such as the present, there is a well recognized presumption in our law to the effect that the default judgment is well founded and that it was based on competent evidence. In Ascension Builders Inc., v. Jumonville, 262 La. 519, 263 So.2d 875 (1972), the Supreme Court stated:

“In order to obtain reversal of a default judgment appealed from, or to obtain a remand, defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and that it is correct. When the judgment recites, as it does here, that plaintiff has produced due proof in support of its demand and that the law and evidence favor plaintiff and are against the defendant, the presumption exists that the judgment was rendered upon sufficient evidence and that it is correct. Baker Finance Co. v. Hines, 255 La. 971, 233 So.2d 902 (1970); Massey v. Consumer’s Ice Co. of Shreveport, 223 La. 731, 66 So.2d 789 (1953); Nugent v. Stark, 34 La.Ann. 628 (1882).
“This presumption which exists, when there is no note of evidence of parole testimony, that the judgment is well-founded and that it was based on competent evidence, is a fair and reasonable one conducive to the efficient administration of justice and should be given much weight. It has long been recognized in our law. Escurieux v. Chapduc, 4 Rob. 323 (La.1843); Hubbell v. Clannon, 13 La. 494 (1839).”

We find that this presumption applies in the instant case and that Cvitano-vich has failed to rebut it.

Finally, it is contended that the trial court’s award is excessive.

While the numerous cases cited by Cvitanovich in support of this contention are illustrative of what other courts have awarded in other fact situations, we believe that the trial court did not abuse his much discretion in the present case. Coco v. Winston Industries Inc., 341 So.2d 332 (La.1976). We find that the trial court’s award of $999.99 as damages for the wrongful seizure and $250.00 as attorney’s fees is reasonable.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . This property consisted of a portable black and white television, a stereo system with four speakers, a radio and three automobiles.

      . LSA-C.C.P. art. 853.
      Every pleading shall contain a caption setting forth the name of the court, the title and number of the action, and a designation of the pleading. The title of the action shall state the name of the first party on each side with an appropriate indication of other parties.
      A statement in a pleading may be adopted by reference in a different part of the same pleading or in another pleading in the same court. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes, (emphasis added).
      LSA-C.C.P. art. 1032.
      An incidental demand shall be commenced by a petition which shall comply with the requirements of Article 891. An incidental demand instituted by the defendant in the principal action may be incorporated in his answer to the principal demand. In this event, the caption shall indicate appropriately the dual character of the combined pleading, (emphasis added).


text:
    Douglas J. HARPER v. Alvin C. THOMPSON.
    No. 11320.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    J. Thomas Anderson,. Hammond, for Douglas J. Harper.
    Joseph H. Simpson, Amite, for Alvin C. Thompson.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit by Douglas J. Harper, the assignee of a ' lease-option agreement, against Alvin C. Thompson, the owner-lessor of the property, seeking an injunction to restrain Thompson from interfering with the rights granted by the lease-option. The trial court granted a preliminary injunction; and Thompson has appealed.

On September 3,1976, Thompson granted a “Lease with Option to Purchase” to Millard E. Gottschalck. The lease was for a period of six months beginning October 1, 1976, or until the lessee Gottschalck, could secure the Farmer’s Home Administration financing to purchase the property. The lessee agreed to pay Thompson’s current Federal Land Bank note and his current FHA note on the property as the rental price under the lease. On October 20,1976, Gottschalck made the first rent payment on the lease. At that same time, he allegedly informed Thompson and the local FHA office that he did not intend to go through with the purchase under the option.

On October 29,1976, Gottschalck assigned all his rights under the lease-option agreement to the plaintiff, Harper. Harper placed nineteen (19) head of cattle on the leased premises on November 1, 1976 and informed Thompson of the assignment. Thompson responded with threats in an attempt to keep Harper off the property.

Shortly thereafter, Harper instituted this suit for an injunction to prevent Thompson from interfering with the lease.

The sole issue presented for review is whether or not the lease was still in effect when it was assigned to Harper. The question of the continuing enforceability of the option to purchase is not before the Court and we do not express an opinion on that question.

As we are not favored by the trial judge with written reasons, we must conclude that he found the lease enforceable at the time of the assignment and at the time of trial. This conclusion follows necessarily from the fact that he granted the requested injunction.

Our examination of the record discloses that there is ample evidence upon which the trial court could have based its factual conclusion. There is no manifest error in the record. We affirm. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Gottschalck testified that on October 20, 1976, when he paid the first rental payment, Thompson expected rent payments for the entire six month term of the lease regardless of whether or not the option to purchase was exercised. Gottschalck stated that he realized he would have to pay the rent for the entire six month term of the lease. Gottschalck further-testified that he had, previous to October 20, 1976, entered into negotiations with Harper which culminated in the assignment of the lease-option to Harper on October 29, 1976, only nine days after the first rental payment was made.

This evidence clearly indicates that Gottschalck did not intend to abandon the lease on October 20, 1976, as he was then engaged in negotiations concerning the assignment of the lease.

Accordingly, we find that the lease was not abandoned, and was therefore valid when it was assigned on October 29, 1976.

Thompson also contends that the lease was breached when Harper failed to make the rental payment on November 1, 1976.

The lease is silent regarding the date on which payment thereon is to be made. Harper testified that Gottschalck informed him that the lease payment was to be made “out of the 15th’s milk money.” Accordingly, Harper personally tendered the rent payment for the month of November to Thompson on November 15, 1976. This payment was refused by Thompson.

“The law is settled that any ambiguity in a contract of lease must be interpreted in favor of the lessee.” Governor Claiborne Apartments v. Attaldo, 231 La. 85, 90 So.2d 787, 788 (1956). See also Beebe v. Schmitt, 308 So.2d 887 (La.App. 2nd Cir. 1975).

Accordingly, we believe that Harper’s payment on November 15, 1976, was reasonable. We therefore reject Thompson’s second contention.

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

AFFIRMED.

COLE, Judge,

concurring.

The burden of proof and the standard of appellate review in cases involving preliminary injunctions can be distinguished from those involved in ordinary proceedings. A preliminary injunction is interlocutory in nature and designed to preserve the existing status quo pending final determination of the matter. Picard v. Choplin, 306 So.2d 918 (La.App. 3rd Cir. 1975); Gulf Toy House, Inc. v. Bertrand, 306 So.2d 361 (La.App. 3rd Cir. 1975). The issuance of a preliminary injunction does not require full proof by a preponderance of the evidence (as does the issuance of a permanent injunction); but may be issued through summary proceedings, on proof which presents a pri-ma facie case. Nomey v. State, Department of Highways, 325 So.2d 732 (La.App. 2nd Cir. 1976); Picard v. Choplin, supra.

The trial judge is given much discretion and latitude in determining whether to grant or refuse a preliminary injunction. On review his decision should not be disturbed except upon a showing of a clear abuse of his discretion. Picard v. Choplin, supra.

In the instant ease, after considering the proof offered by the plaintiff in support of the issuance of the preliminary injunction, the trial judge’s issuance of the preliminary injunction is well within the discretion accorded him.


text:
    Carol Fay ORTEGO v. Nolan J. BROUILLETTE and Louisiana State Department of Highways Through the State of Louisiana et al.
    No. 11324.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    John W. deGravelles, Dué, Dodson and deGravelles, Baton Rouge, for plaintiff-appellant.
    Charles A. O’Brien, Baton Rouge, for Dept, of Highways appellee.
    John S. White, Jr., Baton Rouge, for Donald G. Lambert Contractor, Inc. appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit by Carol Fay Ortego, as the natural tutrix of the three minor children born during her marriage to Louis Dupuy, Jr., and Mrs. Sylvia Dupuy, the surviving spouse, to recover damages for the wrongful death of Louis Dupuy, Jr., as a result of a head-on automobile-truck collision. Named as defendants are Nolan J. Brouil-lette, the Louisiana State Department of Highways and Donald G. Lambert Contractor, Inc. The Highway Department brought a third party action for indemnification against Donald G. Lambert Contractor, Inc., for any damages for which it might be liable. Donald G. Lambert Contractor, Inc., filed a third party action against two subcontractors, Morrison Engineering and Contracting Company, Inc., and Yates and Patterson, Inc., for indemnity for any damages for which it might be liable.

After trial on the merits, the trial judge, without assigning written reasons, awarded judgment in favor of Carol Fay Ortego, as natural tutrix of the three minor children, against Brouillette in the amount of $125,-000.00 plus interest; and judgment in favor of Sylvia Dupuy against Brouillette in the amount of $81,250.00 plus interest. The demands against the Highway Department and Lambert as well as all the incidental demands were dismissed.

Carol Fay Ortego has brought this appeal from the portion of the trial court’s judgment dismissing the demands against the Highway Department and Lambert. Sylvia Dupuy did not appeal, as she effected a settlement of her claim with the Highway Department and Lambert. Brouillette has not appealed; and the trial court’s judgment as concerns him has become final.

The fatal accident occurred about 9:20 p. m. on September 27, 1970 while Louis Du-puy, Jr., the decedent, was driving his 1965, Chevrolet northbound on La. Highway 1 approximately two miles north of New Roads, La. Defendant, Nolan Brouillette, was driving southbound on the same highway in his 1970 Ford pickup truck. As Brouillette approached a point approximately 500 feet from the point of collision, the right wheel or wheels of his truck slipped or were allowed to run off the concrete roadway onto the muddy shoulder. Though it had been raining previous to the accident, it was not raining at the time of the accident and the roadway was dry.

In an attempt to regain control of his truck, Brouillette, without applying his brakes, turned sharply to the left and managed to return the truck back onto the pavement. However, at this time, he still did not have control of the vehicle, and it again went off the roadway onto the muddy shoulder. Again Brouillette turned sharply to the left, but this time as he returned to the roadway he crossed the center line, veered into the other lane and struck the Dupuy vehicle head-on, killing Louis Dupuy, Jr., instantly.

The sole issue presented for review is whether or not the Highway Department and/or Lambert are liable for the accident. Quantum is not at issue.

Sometime before the accident, the Highway Department had awarded a contract for the widening and repair of La. Highway 1 between New Roads and Morganza to Lambert. Signs were erected at the beginning and end of the project warning motorists of the construction. Reduced speed limit signs (45 m.p.h.) were placed at specified intervals along the construction. Additionally, portable signs and road delineators were placed at the point where construction was taking place each day. These portable signs warned of various construction hazards such as men working, soft shoulder, low shoulder, etc. The record indicates that all signs met applicable specifications.

There were no signs in the area of the accident, nor were there any road deline-ators marking the edge of the concrete roadway.

Plaintiff contends that there was a drop-off between the concrete roadway and the shoulder. Further, she contends that this drop-off was caused by the excavation of the shoulder preparatory to widening the roadway. Finally, she contends that the drop-off was a contributing cause of the accident; and that the Highway Department and Lambert were negligent in failing to safeguard and warn the public of the “defects” in the shoulder created by their actions.

Since the trial judge did not assign reasons for the dismissal of the claim against the Highway Department and Lambert, we must conclude that both were found free of negligence. There is ample evidence in the record to support this conclusion. We affirm. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

In Hale v. Aetna Casualty & Surety Company, 273 So.2d 860, 862 (La.App. 2nd Cir. 1973), writ refused La., 275 So.2d 867, the Second Circuit, citing earlier cases, stated:

“We do not find any serious dispute as to the law. The highway department owes a duty to maintain its roads in a safe condition so as not to expose the traveling public to any undue hazards. This duty includes the obligation to timely repair or make safe any defects or conditions of the roads of which it has knowledge or should know about. Any person or firm contracting with the highway department to repair a road likewise owes a duty to the public to perform the contract in such a manner as not to expose those using the roads to any dangers which could be prevented by the use of ordinary and reasonable care. This obligation on the part of the highway department and the contractor imposes the duty adequately to warn motorists of the existence of any dangers created by the road repairs.”

In cases where the defective condition is due to an act chargeable to the department or its agents, no notice of any kind, either actual or constructive, is required. Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975).

The first question to which we address ourselves is whether or not there was, in fact, a defect in the roadway or shoulder. All the testimony in the record indicates that there was no defect in the concrete roadway itself. However, the investigating officer stated in his report that the shoulder was defective. At trial, he clarified this by testifying that this “defect” was due to the road construction. He further testified that there was a drop-off between the roadway and the shoulder. Additionally, plaintiff introduced various photographs of the roadway, some taken the day after the accident and others taken more than a month later, to show that there was a drop-off from the road onto the shoulder. While this evidence and the other testimony in the record indicates that there was a drop-off, the plaintiff has failed to prove the exact nature, extent and location of the drop-off vis-a-vis the accident scene.

Assuming, arguendo, that the drop-off, as alleged by plaintiff, was, in fact, a contributing cause of the accident, the testimony in the record fails to prove that the drop-off was the result of road excavation or any other acts committed by the Highway Department or the contractor, Lambert.

The Highway Department’s assistant chief construction engineer and the project engineer both testified that although there was construction occurring along La. 1, no excavation work had been performed in the area of the accident. The aforementioned construction was confined to work on the culverts alongside the road. The project engineer, after examining the photographs admitted into evidence by plaintiff testified that the drop-off was definitely not the result of construction activities. He stated that the presence of grass on the shoulder was inconsistent with excavation activities. He opined that the drop-off apparently was caused by the passage of multi-wheeled trucks, the outside wheel of which ran off the pavement.

The other testimony alluding to construction in the area of the accident is non-specific as to the nature of the construction, and does not establish that the drop-off was or was not caused by excavation, or that any excavation had occurred.

We conclude that any drop-off at the scene of the accident was not the result of any acts committed by the Highway Department or Lambert.

Accordingly, to hold the Highway Department for failure to repair or warn of the defective shoulder, it was necessary for plaintiff to prove that it had actual or constructive notice of the defect. This was not shown.

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

AFFIRMED.


text:
    Rex NELSON v. John D. NEWMAN, Jr.
    No. 11328.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.
    Thomas H. Benton of Benton, Benton & Benton, Baton Rouge, for plaintiff.
    R. Bradley Lewis of Talley, Anthony, Hughes & Knight, Bogalusa, for defendant.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit on a promissory note brought by Rex Nelson against John D. Newman, Jr. After trial on the merits, judgment was signed on October 8, 1976 in favor of Newman dismissing plaintiff’s suit. From this judgment, plaintiff has appealed. We ex proprio motu notice that this Court lacks jurisdiction to hear plaintiff’s appeal due to his failure to file timely an appeal bond.

As stated above, judgment was signed on October 8, 1976. Notice of the judgment was mailed to counsel for both parties on Monday October 18, 1976, as evidenced by the clerk’s certificate filed in the record. No application for a new trial was filed.

Plaintiff obtained an order granting a devolutive appeal on November 3, 1976, which order was subsequently amehded on December 14, 1976, in order to set the amount of the appeal bond. The $250.00 appeal bond was not filed until January 3, 1977, as evidenced by the clerk’s “Certificate of Deposit of Cash Bond.”

The delay for taking and perfecting a devolutive appeal is sixty (60) days from the expiration of the delays for applying for a new trial, as provided by LSA-C.C.P. art. 1974, if no application for a new trial is filed timely. LSA-C.C.P. art. 2087, as amended by Acts 1976, No. 201 § 1 (effective October 1, 1976).

The delay for applying for a new trial is seven (7) days, exclusive of legal holidays. This delay commences to run on the day after notice of judgment is mailed. LSA-C.C.P. art. 1974.

Accordingly, the delay for applying for a new trial commenced on Tuesday, October 19, 1976, and expired on Wednesday, October 27, 1976. The delay for perfecting a devolutive appeal commenced on October 28, 1976 and expired on Monday, December 27, 1976. The appeal bond filed on January 3, 1977, was therefore untimely.

Since no appeal bond was filed timely, this Court lacks jurisdiction to hear the appeal. LSA-C.C.P. art. 2088. Therefore, we ex proprio mota dismiss the appeal.

APPEAL DISMISSED.

      . The sixty day period elapsed on Sunday, December 26, 1976, but because this was a legal holiday the appellant had until the end of the next non-holiday to perfect his appeal.


text:
    Edward BREAUX, Jr., and Jessie Guillot v. HARTFORD INSURANCE COMPANY.
    No. 11332.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Falterman & Joffrion by Steven Joffrion, Pierre Part, for plaintiff-appellant.
    Edward W. Gray, Baton Rouge, for defendant-appellee.
    Pugh, Lanier & Pugh by Walter I. Lanier, Jr., Thibodaux, for plaintiff-appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a tort suit brought by the driver (Breaux) and the guest passenger (Guillot) in a pickup truck against the liability insurer of an automobile. The guest passenger did not sue the host driver or his liability insurer, but only sued the liability insurer of the other vehicle.

After trial on the merits the trial judge dismissed the plaintiffs’ suit at their costs. Both plaintiffs have appealed.

The accident occurred on a two-lane blacktop state highway in Assumption Parish, and the plaintiffs’ version of the accident is that the defendant’s vehicle backed out of a driveway onto the highway in front of them and that in order to avoid striking the automobile broadside, Breaux hit his brakes, swerved to the left, lost control, hit a mail box and a tree.

The defendant’s version of the accident is that its insured backed out of the driveway, carefully looked down the road, straightened out, and had gone approximately 150 to 175 ft., down the highway when a passenger in the automobile noticed that the pickup truck behind them was going off the road.

The two vehicles did not make any contact with each other.

Although the trial judge did not give reasons, his dismissal of the guest passenger’s suit as well as the pickup driver’s suit leads to the obvious conclusion that he found no negligence on the part of the automobile driver (Hartford’s insured).

There is adequate evidence in the record through the testimony of Mr. Bourg, the automobile driver; his wife, Mrs. Atlas Bourg; and another witness, Tammie Ma-bile, to support the trial judge’s conclusions of fact. Canter v. Koehring Company, 283 So.2d 716 (La.1973). There has been shown no manifest error on the part of the lower court.

The judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


text:
    Joseph H. WILLIAMS et al. v. Rodney P. DUPRE et al.
    No. 11337.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Charles W. Rea, Baton Rouge, for plaintiffs and appellants.
    Maurice P. Mathieu, Houma, for defendants and appellees.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit for damages sustained by two young girls, ages 3 and 15 respectively, who were struck by an automobile.

The trial judge dismissed the plaintiffs suit upon a finding of no negligence on the part of the defendant, Dupre.

In his reasons for judgment the trial judge wrote:

“This a damage suit wherein Joseph Williams, the father of two minor daughters, Sylvia Williams and Joyce Ann Williams were injured. The facts of the case as presented by the plaintiff and that of the defendant, are conflicting. The plaintiff contends that at approximately 7:00 p.m. on August 23, 1973, his two daughters, Sylvia Williams and Joyce Ann Williams were walking from the residence of Charlie Win-slow and while still on the shoulder of the road; that is, Louisiana Highway 311, they were struck by an automobile driven by the defendant, Rodney P. Dupre, who did drive his automobile off of the paved portion of the highway onto the shoulder of the highway and there struck the two girls.

“The defendant’s version is that he was driving in a westerly direction along Louisiana Highway 311 at about 9:00 p.m., and all at once he saw Sylvia, then 4 years of age, break loose from her sister, Joyce, and dart across the highway. Her sister, Joyce, trying to grab Sylvia, ran after her. The defendant contends that he immediately applied his brakes and his car went into a skid, struck the girls on the paved portion of the highway, then skidded to the right and ended up in a ditch.

“The testimony of the police officer, Trooper Gregory Whitney, corroborated the testimony of the defendant. Trooper Whitney made an excellent investigation and documentation of his findings. Further, Trooper Whitney spoke to Joyce Williams at the hospital after the accident and she advised him at that time that her little sister, Sylvia, had broken away from her and run across the highway, and she pursued her little sister in an attempt to grab her, when they were struck on the highway by the automobile driven by the defendant, Rodney P. Dupre. Subsequently she changed her story.

“This court finds that the defendant’s version of the accident is the true account as to how the accident actually occurred. This court finds no fault on the part of the defendant, Rodney P. Dupre.”

Our thorough examination of the testimony in this case confirms beyond-doubt the conflicting nature of the testimony.

There is clearly sufficient evidence in the record through the testimony of Mr. Dupre, Trooper Greg Whitney and Mrs. Doris Hebert, the employee in the hospital emergency room, to support the trial judge’s factual determination that the two girls ran in front of the approaching automobile and that the driver was not negligent. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the above reasons the judgment of the trial court is affirmed. Plaintiff proceeded in this appeal in forma pauperis, but nonetheless must be taxed for costs, in accordance with LSA-C.C.P. art. 5188. See Mayer v. Frank J. Reyer & Co., 138 So.2d 642 (La.App. 4th Cir. 1962).

AFFIRMED.


text:
    James D. WILLIE v. OTASCO, and Insurance from CNA.
    No. 11484.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      Frederick R. Bott, New Orleans, for appellant.
    James R. Jenkins and Mike J. Balen, Cov-ington, for appellees.
    Before LANDRY, EDWARDS, and COLE, JJ.
   EDWARDS, Judge.

This is a suit for workmen’s compensation benefits brought by James D. Willie against Otasco and Insurance from CNA. The trial court rendered a default judgment; and the defendants appealed. The case is presently before us on a motion to dismiss the suspensive appeal.

A judgment upon confirmation of default was rendered against the defendants on November 12, 1976. Notice of judgment was subsequently served on the defendants on December 2nd and 3rd, 1976.

On December 8, 1976, defendants filed a “Motion to Annul Judgment, or, Alternatively, for a New Trial.” This motion was denied and a judgment to that effect signed on January 14, 1977.

Defendants filed a petition for appeal on February 14, 1977, but the attached order granting the “suspensive and devolutive” appeal and setting the amount of the devol-utive appeal bond was not signed by the trial judge until February 18, 1977. An appeal bond in the amount required by law for a suspensive appeal was also filed on February 14, 1977.

On March 23, 1977, plaintiff filed a motion to dismiss the suspensive appeal on the grounds that this Court lacks jurisdiction to hear the appeal. This contention is based on the defendants’ failure to obtain an order of appeal within the 30 day period of LSA-C.C.P. art. 2123.

We consider the motion to dismiss, though filed beyond the three day limitation of LSA-C.C.P. 2161, as it alleges a jurisdictional defect. American National Ins. Co. v. Ramon, 204 So.2d 798 (La.App. 4th Cir. 1967).

There are two requirements which must be fulfilled within the appropriate delays in order to perfect timely an appeal. These are (1) obtain an order of appeal from the court which rendered the judgment, (2) file a sufficient appeal bond. LSA-C.C.P. articles 2121 and 2123.

The delay within which to take a suspen-sive appeal is provided for in LSA-C.C.P. art 2123:

“Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken and the security therefor furnished, only within thirty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.”

Since defendants in the instant case filed an application for a new trial, the time from which the 30 day period commences is determined by whether or not notice was required under LSA-C.C.P. art 1914 of the court’s refusal to grant a new trial.

The minutes reflect that on January 14, 1977, the motion for a new trial was called and the defendants did not appear. Thereupon, the motion was denied and judgment to that effect signed. It is clear that the motion was not taken under advisement and that defendants did not file a request for notice as provided in LSA-C.C.P. art 1914. Therefore notice was not required. Crouse v. Bogil, 328 So.2d 801 (La.App. 1st Cir. 1976). Accordingly the 30 day period within which to perfect a sus-pensive appeal expired on February 14, 1977. LSA-C.C.P. art 2123(2).

Since the order of appeal in this case was not granted until it was signed by the trial court on February 18, 1977, the defendants have not satisfied the first requirement for a suspensive appeal as above stated and we are without jurisdiction to hear their appeal suspensively.

However, in “every appeal, whether it be denominated suspensive, devolutive, both or neither, there is only one appeal; and if taken timely and bond timely furnished in the amount determined by law or as ordered by the court, the appellants’ right of appellate court review is insured. The time of filing and the amount merely determines its effect on execution of the judgment pending appeal.” Lakeside Rambler Sales, Inc. v. Durad Corporation, 228 So.2d 745, 749 (La.App. 4th Cir. 1969).

As the order of appeal, granting a “sus-pensive and devolutive” appeal, and the appeal bond, in an amount exceeding that ordered by the trial court, were filed within the delay allowed for a devolutive appeal, and the defendants’ right to a devolutive appeal was preserved. LSA-C.C.P. articles 2087 and 2121.

For the reasons assigned, the motion to dismiss is granted insofar as it seeks dismissal of the suspensive appeal. We however, retain jurisdiction to review this matter as a devolutive appeal.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED. DEVOLUTIVE APPEAL MAINTAINED.

      . Defendants contend that they should have been sued under the names Rapid American Corporation and Continental Casualty Company, respectively.


author: COLE, Judge.

text:
    Myrtis R. Gilley BRADFORD, natural tutrix of Donald R. Gilley v. J. RAY McDERMOTT & CO., INC., and the Travelers Insurance Company.
    No. 11268.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.
    James C. Boies, Rayville, for plaintiff.
    John G. Torian, II, Davidson, Meaux, On-ebane & Donohoe, Lafayette, for defendants.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This is an appeal from a judgment of the trial court which dismissed, with prejudice, the suit for damages filed on behalf of the plaintiff-appellant, Donald R. Gilley, because of the failure of plaintiff to appear personally or through counsel on the day set for trial. The plaintiff appeals. We affirm.

The trial judge’s dismissal of plaintiff’s suit with prejudice was an exercise of the discretion granted by LSA-C.C.P. art. 1672, which provides:

“A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case the court shall determine whether the judgment of dismissal shall be with or without prejudice.”

The appellant complains that the dismissal of the suit by the trial court with prejudice was an abuse of the discretion granted it, because the court was notified by plaintiff’s counsel that the reason for counsel’s absence was beyond his control. However, the sequence of events surrounding the suit does not support this contention. To the contrary, the facts demonstrate inexcusable neglect on the part of plaintiff and plaintiff’s counsel to bring the suit to a reasonably expeditious disposition in the face of commendable patience and cooperation from the defendants.

A suit was filed by Myrtis R. Gilley on behalf of her minor son, Donald R. Gilley, against the defendant, J. Ray McDermott & Company, Inc., for damages arising from personal injuries allegedly sustained in an automobile accident which occurred on June 29, 1970, involving vehicles driven by Gilley and an employee of the defendant. The suit was filed on June 28, 1971, or one day before the cause of action was to prescribe.

On motions made by the defendants, the suit was set for hearing on September 13, 1972, and again on November 27, 1973. On each occasion, opposition was filed by the plaintiff. On March 31, 1976, again on motion by the defendants, an order was signed by the trial court setting a hearing on the merits for June 10, 1976. On June 9, 1976, counsel for plaintiff filed an amended petition substituting Donald R. Gilley as plaintiff because he had reached majority. This amendment in no way affected the merits of the case or the trial date.

On June 9, 1976, the day before the date set for trial, plaintiff’s counsel filed a motion for continuance because of the alleged absence from the state of a medical witness whose deposition had not been taken, supposedly because “of the inability to date, despite diligent effort, to schedule the depositions of the court medical experts required.” We note in this connection that the alleged accident had occurred almost six years earlier and the suit had been pending for almost five years. Also in the motion for continuance, plaintiff’s counsel alleged that the trial date would “impose a severe hardship upon counsel.” With reference to this assertion, we note that the order setting the trial date was signed on March 30, 1976, and notice was sent to counsel on March 81, 1976. However, the plaintiff’s motion for continuance was not filed until June 9,1976, or the day before the trial was set.

The motion for continuance was received and filed by Phillip Boudreaux, an employee of the Clerk of Court, on June 9, 1976. He testified that upon receiving the motion for continuance he consulted Judge C. Thomas Bienvenu, Jr. The judge asked that he call defendants’ counsel to determine if the motions would be opposed. Defendants’ counsel informed Boudreaux that the defendants refused to agree to the continuance. Upon learning of defendants’ opposition to the motion for continuance, the judge instructed Boudreaux to call plaintiff’s counsel. On June 9, 1976, Boudreaux called counsel’s office and talked with his secretary and told her that the motion was being opposed and would be heard contradictorily on June 10, 1976, at 10:00 A. M. In the event that said motion was denied, he informed her that the plaintiff should be ready for trial.

Defense counsel testified that he spoke with plaintiff’s counsel on June 3, 1976, and at that time expressed his opposition to a continuance of the trial date. On June 9, 1976, plaintiff’s attorney returned a phone call made earlier that day by defendants’ counsel. Again the matter of the trial was discussed and plaintiff’s counsel was advised that the motion for continuance would be opposed.

At approximately 8:45 A. M. on June 10, 1976, Shirley Breaux, an employee of the office of the Clerk of Court received a call from plaintiff’s counsel stating that his car had broken down on the way to court and that he would not be able to appear. She explained that she woull relay the message to the judge, but she also strongly suggested that he call the judg; himself and gave him the appropriate telephone number. Both the judge’s secretai and bailiff testified that no call was e :r received from plaintiff’s attorney and mat if such a call had been made, either one of them would have been aware of it.

The attorney for the defendant appeared in court at 10:00 A. M. on June 10, 1976, and the case was called for trial. When it became apparent that neither the plaintiff, his attorney, nor any witnesses for the plaintiff were going to appear, the judge instructed defense counsel to attempt to contact plaintiff’s counsel by telephone. The defendants’ attorney and the judge called and talked to the secretary of the plaintiff’s counsel who was unaware of counsel’s whereabouts. She informed the judge and defendants’ counsel that the file relating to the suit was still in the office.

In denying the motion for continuance, the trial judge correctly noted that LSA-C. C.P. art. 1602 relating to peremptory grounds for continuance requires a showing of the grounds for applying for continuance. The judge also noted that under LSA-C.C.P. art. 1604 when a party seeks a continuance on account of the absence of a material witness, the adverse party may require him to disclose on oath the facts he intends to prove by the witness; if the adverse party admits that if the witness were present he would testify as stated in the affidavit, the court shall proceed with the trial of the case.

The trial judge further explained that every contested motion for continuance should be tried summarily and contradictorily with the opposing party. LSA-C.C.P. art. 1605. As noted by the judge, the opposing party was present in court on the day set for the hearing on the motion.

As to the question of the plaintiff’s assertion that he had used diligence in attempting to schedule the depositions, defense counsel testified that the matter had been pending for six years and that at the pretrial conference on April 23,1976, plaintiff’s attorney was instructed to depose all of his medical witnesses. By agreement, the plaintiff was given until approximately May 22, 1976, to do so. At the time of the trial, defense counsel stated that he had not been contacted with reference to scheduling any of the depositions.

Plaintiff also alleged in the motion for continuance that the parties were at a point of serious negotiations, looking toward settlement. Counsel for defendant testified that he had never received a settlement demand from plaintiff’s counsel since the time that the matter was set for trial.

After the motion for continuance was denied by the trial court, the court considered the defendants’ motion to dismiss. In granting the motion to dismiss, the trial judge expressed his reluctance to grant a dismissal with prejudice “feeling that all litigants, all citizens, should have a right to their day in Court.” However, the trial judge granted the dismissal with prejudice saying:

“In view of the testimony that we have heard today; in view of the Court’s own efforts to try and contact counsel for plaintiff; in view of the late filing of the motion for a continuance; in view of the fact that there [have] been no subpoenaes for the attendance of witnesses even requested by the plaintiff; in view of the fact that the only people in this courtroom now are the court personnel, counsel for defendant, the one witness that defendant subpoenaed and that witness’ wife and no one else; indicates to the Court that plaintiff is just not seriously interested in trying this case. The Court has been, I think, more than reasonable in waiting for the appearance of plaintiff and plaintiff’s counsel after instructing counsel to be here, and noting that the time is approximately twelve twenty-seven p. m. and that this case was fixed for trial at ten o’clock in the morning, the Court will, in the exercise of discretion, grant the motion of defendants to dismiss this matter with prejudice, and I will sign the order accordingly.”

We find that the dismissal of the suit with prejudice and the denial of a motion for a new trial are well within the discretion accorded the trial court. LSA-C.C.P. arts. 1672, 1971. See Malter v. McKinney, 310 So.2d 696 (La.App. 1st Cir. 1975); Powell v. Giddens, 271 So.2d 596 (La.App. 1st Cir. 1972).

Therefore, for the reasons hereinabove expressed, the judgment of the trial court is affirmed. The costs of the proceedings are assessed to the appellants.

AFFIRMED.


text:
    PARISH OF EAST BATON ROUGE v. Johnny COLEMAN, d/b/a Plank Road Welding.
    No. 11321.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.

      Stephen Wilson, Asst. Parish Atty., and Joseph F. Keogh, Parish Atty., Clinton Hyatt, Jr., Asst. Parish Atty., Baton Rouge, of counsel for plaintiff-appellant Parish of East Baton Rouge.
    William L. Kimball, Port Allen, of counsel for defendant-appellee Johnny Coleman, d/b/a Plank Road Welding
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This summary proceeding was instituted by the Parish of East Baton Rouge, plaintiff-appellant, under La.-R.S. 33:2713, 33:2841, 47:314 and East Baton Rouge Parish Ordinances Title 9, § 140(c), to collect sales taxes allegedly due the Parish by the defendant-appellee, Johnny Coleman, d/b/a Plank Road Welding, for the period from January 1, 1971, through August, 1974. The trial court rendered judgment in favor of the defendant recalling the rule issued.

In its written reasons for judgment the trial court said:

“Although the Court finds plaintiff’s suit is fatally defective as neither the rate of tax due is alleged nor is the ordinance pleaded, proved or offered in evidence, the proof is conclusive that the defendant has paid all taxes due the plaintiff-parish for the period claimed.
“The defendant was not engaged in a business from which tax was due after May, 1972, the date defendant concluded his welding shop business. All taxes due have been paid.”

Assuming that the proper procedure for the collection of delinquent sales taxes was followed by the Parish, it is clear to this Court that the defendant has sustained his burden of rebutting the prima facie case of tax liability established by the Parish.

To establish a prima facie case, the Parish offered the original petition and the notarized affidavit of the Director of Finance for the City of Baton Rouge and the Parish of East Baton Rouge which indicated an arbitrary assessment for the period of January 1, 1971, through August of 1974, plus penalties and attorney’s fees. The Parish offered no additional evidence in its case in chief, nor did it offer rebuttal evidence.

From the evidence presented at trial by the defendant, it was shown that from January 1, 1971, through May, 1972, the defendant earned income from the operation of a welding shop, Plank Road Welding, for which he remitted the appropriate amount for sales taxes due. During this period the defendant also earned income resulting from various contracts of labor for the erection of permanent metal structures. After May of 1972, the defendant’s income was earned solely as a contractor for the construction of various permanent metal structures. However, he continued to contract for business under the trade name “Plank Road Welding.” These facts are supported by the testimony of the defendant, various written building contracts, and the testimony of some of the parties with whom he contracted to build the structures. Thus, the defendant is not liable for any sales taxes for this period when he was not operating as a “dealer.” La.-R.S. 33:2713, 47:301, et seq.; East Baton Rouge Parish Ordinances, Title 9, §§ 121(f), 122(b).

The finding of fact by the lower court that the defendant has paid all of the taxes due the plaintiff for the period claimed is reasonably supported by credible evidence in the record. See, Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La. 1976).

Accordingly, we affirm the judgment of the trial court. The costs of these proceedings, to the extent permitted by law, are assessed to the appellant.

AFFIRMED.


text:
    LAYNE-LOUISIANA DIVISION OF the SINGER COMPANY v. GREEN ACRES SEWERAGE AND WATER CORPORATION.
    No. 11325.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.
    Wesley W. Steen, Baton Rouge, for Layne-Louisiana Div. of Singer Co.
    Tom H. Matheny, Hammond, for Green Acres Sewerage & Water Corp.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

Plaintiff-appellee, Layne-Louisiana Division of the Singer Company (hereinafter referred to as “Layne”), brought suit against Green Acres Sewerage and Water Corporation (hereinafter referred to as “Green Acres”), the defendant-appellant, to recover the sum of $42,000.00 allegedly due under a contract to drill a water well. Green Acres appeals the judgment of the trial court in favor of Layne and against Green Acres for $42,000.00. We affirm.

On May 9, 1974, after prior negotiations, Olin Lacy, sales representative for Layne, presented to Robert L. Edwards, President of Green Acres, a proposal by Layne to construct and equip a water well approximately 1,800 feet deep. The proposal by Layne was accepted and signed by Edwards on behalf of Green Acres on the same date. The well was drilled and water produced. However, Green Acres refused to pay the price as provided in the written contract, thereby causing Layne to initiate this suit.

The essential complaint of Green Acres which led to its refusal to pay concerns the chemical content of the water. Specifically, the water produced contains a relatively high iron content. In defense of Layne’s suit for the price of the well, Green Acres raises basically two defenses, both of which relate to the chemical content of the water produced. First, Green Acres alleges that Layne failed to perform under the contract, either by violating a verbal agreement to guarantee the chemical content of the water, by failing to drill deeper than 1,971 feet in an effort to secure better water, or by improperly setting the screen in the well. Secondly, Green Acres alleges that error as to the primary cause of the contract vitiates the consent to the contract under Louisiana Civil Code Article 1819, et seq.

NON-PERFORMANCE

The written contract entered into between the parties, with regard to chemical content, provides:

“ * * * The well to be constructed under this proposal will be made in accordance with all applicable requirements of the Louisiana Department of Health, but we make no guarantee as to chemical quality. Our Health Board guarantee is on the basis of a bacterialogical [sic] analysis only.” (Emphasis supplied)

The above-quoted provision is clear and unambiguous and has the effect of law on the parties. La.-C.C. art. 1945. Any extrinsic evidence of a verbal guarantee as to chemical content which would vary the terms of the written contract is inadmissible. La.-C.C. art. 2276; Baton Rouge Sash & Door Company, Inc. v. Saale, 298 So.2d 115, 118 (La.App. 1st Cir. 1974).

The trial court, “out of an abundance of caution,” considered parol evidence of a verbal guarantee by Layne of the chemical quality of the water, over Layne’s objection. However, after considering such evidence, the trial court still concluded:

“ * * * A careful scrutiny of the testimony of all of the witnesses still leads to the conclusion that the above quoted paragraph contains the clear understanding and intent of the parties thereto.”

In this regard we note that at Edwards’ request, changes were made in other provisions in the letter proposal presented before he accepted and signed it. Had Edwards intended to change the contract with regard to the provision on the chemical content, it must be presumed that such a change would have been made along with the others noted. See Baton Rouge Sash & Door Company, Inc. v. Saale, supra.

Additionally, the appellant apparently contends that Layne failed to perform under the contract, because it did not drill deeper than 2,000 feet in order to obtain better water. The contract provided, however, only that a 1,800 foot well would be constructed, with a provision that would have allowed the well to be drilled deeper with an additional cost adjustment. In fact, Layne drilled to 1,971 feet. While the contract did not require Layne to drill deeper than 1,800 feet upon Green Acres’ request, it is clear from the record, to the contrary, that Edwards was insistent about not going below 2,000 feet because of concern about any adverse effect on the water pressure.

The appellant also urges that Layne failed to perform under the contract because Green Acres did not consent to the water screen being set at the level where it was placed. With regard to the placing of the screen, the contract provided:

“ * * * Prior to installing the casing and screen, we [Layne] will run an electric log to insure that the screen is set opposite the best part of the water bearing formation.”

This provision did not require the approval of Green Acres in setting the screen but, in effect, required that on the basis of an electric log the screen be set in the best part of the water-bearing formation. The expert testimony presented indicates that an electric log was taken down to 1,971 feet. The log indicated that the best and only reliable water-bearing sands were located at a depth of 1,495 to 1,620 feet. An 80-foot screen was set with its top at 1,508 feet. The expert testimony indicates clearly that the placement of the screen is well within the water-bearing formation and has no effect on the chemical quality of the water.

ERROR OR MISTAKE

Green Acres additionally asserts that error or mistake as to the principal motive of the contract (i. e., to obtain iron-free water) voids the contract. Under Louisiana Code of Civil Procedure Article 1005, error or mistake constitutes an affirmative defense which must be specifically pled. In this case Green Acres did not specifically plead the defense of error or mistake in its answer.

Therefore, for the foregoing reasons, the judgment of the trial court is affirmed. The costs of these proceedings are assessed to the appellant.

AFFIRMED.