text:
    Tex M. ARMENTOR v. FRED C. BENTON INDUSTRIAL REPAIRS et al.
    No. 8267.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Rehearing Denied Sept. 9, 1977.
    Writ Refused Nov. 4, 1977.
    Frederick J. Gisevius, Jr., David E. Caruso, Jr., New Orleans, for plaintiff-appellant.
    Monroe & Lemann, Andrew P. Carter, Eugene G. Taggart, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff Tex M. Armentor is appealing from a summary judgment dismissing his suit for damages for personal injuries against three executive officers of Louisiana Power and Light Company (L P & L).

On June 22, 1970 plaintiff was employed as a groundman on a L P & L line construction crew and was hanging street lights on pre-existing poles along a service road near the Westbank Expressway in Marrero. There were energized power lines located about eight or nine feet above the light fixtures. Plaintiff was doing the work from an elevated aerial basket which was attached to a special truck. For reasons unknown the basket suddenly began to move upward bringing plaintiff’s shoulder in contact with an energized switch box and causing him to be electrified. Plaintiff’s arm and shoulder were severely burned necessitating the amputation of his arm and part of his shoulder.

Plaintiff sued the manufacturer of the basket truck, the firm that maintained and serviced it, Floyd W. Lewis, the president and chairman of the board of L P & L, Louis Bass, the company’s Safety Engineer, John Tiedemann, the Division Construction Superintendent and Joseph Naquin, his immediate foreman. Lewis, Bass and Tiede-mann were dismissed from the suit on a motion for summary judgment and plaintiff has appealed. We affirm.

Plaintiff was a member of a seven man crew consisting of three groundmen, three linemen and a truck driver. Joseph Naquin was the foreman of the crew. The linemen were the more experienced men on the crew and aided in the training of the groundmen. The groundmen were eventually promoted to linemen upon the recommendation of the foreman. Plaintiff had been with L P & L for nine months prior to the accident. The crew had been hanging lights for about a month and plaintiff had been doing that type of work daily.

Plaintiff argues that the defendants failed to provide him with a safe place to work and failed to adequately supervise the activities of the crews. Specifically, he argues that defendants were negligent in failing to formulate rules with regard to de-en-ergizing wires and with regard to the use of rubber goods to shield the men from high voltage wires in the work area.

The trial judge found that Lewis, Bass and Tiedemann had no personal duty to plaintiff but rather had administrative responsibilities too remote to meet the requirements for liability under the Canter v. Koehring Company, 283 So.2d 716 (La.1973).

In Canter the Supreme Court set out the circumstances under which an officer, agent or employee may be personally liable to a co-employee.

“1. The principal or employer owes a duty of care to the third person (which in this case includes a co-employee) breach of which has caused the damage for which recovery is sought.
“2. This duty is delegated by the principal or employer to the defendant.
“3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to othérs as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
“4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its nonperformance or malperfor-mance and has nevertheless failed to cure the risk of harm.”

Defendants Lewis, Bass and Tiedemann filed affidavits in support of their motion for summary judgment.

Floyd W. Lewis was the president and chairman of the board of L P & L in June 1970. As such his primary function was to oversee the general management and financial business of the company. He explained that the organization, which employs 1900 persons is broken down into divisions each having a specific function in the company’s operation and each having competent personnel who are responsible for performing those functions.

Lewis stated in his deposition that at the time he became president L P & L was an ongoing concern and the responsibility for the supervision and safety of the personnel had already been delegated to competent persons in the company. He further stated that he was not personally involved in field operations and that he had no knowledge of the particular work that plaintiff was performing on the day of the accident or that he was subject to a hazardous situation.

Louis Bass held the position of Safety Engineer in June of 1970. He stated that his main function was to revise and annually distribute a safety manual to the various division managers throughout the state. He did not personally formulate the regulations contained in the booklet which were prepared by a State Safety Committee. He published a monthly bulletin on the safety records of each division. Bass also reviewed new types of equipment to determine if they were superior to the equipment in use by the company. He stated, however, that the aerial basket had been approved and was in operation prior to his becoming Safety Engineer. He had no responsibility for the maintenance of the equipment. He stated that he had no knowledge of the particular operation plaintiff was engaged in on the day of the accident or that plaintiff was exposed to a hazardous situation. He stated that the foreman was in charge of supervising the field crew.

John Tiedemann was responsible for the line construction and maintenance crews for the West Bank Division which included fourteen parishes. This involved the supervision of seven L P & L crews and four to twelve outside crews. His main function was to assign the work projects to the different crews. He would visit the different job sites to see how the work was progressing. However, because of the large number of the crews and the fact that they were working in a fourteen parish area, it was impossible for him to survey every crew each day. He stated that the foremen of each crew was responsible for supervising the jobs on a daily basis. He stated that his personnel function was limited to seeing that the crews were fully manned and promoting the crewmen to a higher level upon recommendation of the foreman. He stated that it was the duty of the foremen to determine whether or not a crew member could perform a certain task. He stated that he was an electrical engineer and had never been a member of a crew himself. He further stated that he was not present at the job site on the day of the accident and had no knowledge that plaintiff was exposed to a hazardous situation.

Joseph Naquin, the foreman of plaintiff’s crew admitted in his deposition that he was responsible for supervising his crew and seeing that the work was done under safe conditions. He stated in his deposition that plaintiff was doing a routine job and that there was no reason to suspect that he was working under hazardous conditions. Na-quin had used the truck for three years without incident. He stated that it had been overhauled a few months before the accident and worked perfectly.

Naquin and Tiedemann both stated that it was not feasible to de-energize the overhead lines and cut off the electricity to half of its Marrero customers for a routine job which did not require the crewmen to be in close proximity to energized wires.

Naquin also stated that each crewman was supplied rubber goods by the company and they were instructed to use them if they felt it necessary. Both Naquin and Tiedemann stated that there was a greater risk involved in covering live wires with rubber blankets than in hanging lights in an area eight or nine feet below the wires.

On the basis of the affidavits and depositions in the record we find it undisputed that defendants Lewis and Bass held administrative positions in the company and had no personal responsibility for supervision of field crews. Such responsibility had been delegated to competent personnel who were in daily contact with the field operations. Defendants Bass and Lewis had no experience in working personally with line construction crews. They were not aware nor did they have occasion to be aware that plaintiff was working under hazardous conditions.

Defendant Tiedemann did have personal knowledge of the work being done by plaintiff on the day of the accident. However, it is relevant that Tiedemann was in charge of twelve to nineteen crews at one time which were spread out over a fourteen parish area. It would have been impossible for him to visit each crew daily and properly supervise the work of each. Therefore, such responsibility had been delegated to the foremen who were better able to oversee the work on a daily basis. There is no dispute that defendant Tiedemann had no knowledge that plaintiff was working under unsafe conditions. The crew had been hanging lights for about three weeks without incident.

As far as plaintiff’s argument with respect to the use of rubber goods and de-en-ergization of lines, these options were made available by the company. Each man had his own set of rubber goods and was instructed to use them if he felt it necessary. If a crew member exposed himself to danger in carrying out his work (we ignore the obvious contributory negligence question) it would logically be the duty of the foreman who was present, rather than of executive officers, to advise him to use the rubber goods.

With regard to the de-energization of wires, depriving neighborhoods of electrical service, it is apparent that such action would only be taken when absolutely necessary and that the decision to do so would be made on a job-by-job basis. Therefore, it would seem appropriate that the decision to de-energize should be made by an experienced foreman who was present on the job and who was able to survey the situation and determine whether such action was necessary.

Based on the above we find it'undisputed that the duty of providing plaintiff with a safe place to work had been delegated to his foreman Joseph Naquin and that under the holding of the Canter case, supra, defendants Bass, Tiedemann and Lewis were correctly dismissed from the suit on the motion for summary judgment.

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: STOULIG, Judge. REDMANN, Judge,

license: Public Domain

text:
    FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE v. NOVEM, INC.
    No. 8270.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Rehearing Denied Sept. 9, 1977.

      Bridgeman & Conway, James R. Conway, III, Metairie, for First Wis. Nat. Bank of Milwaukee and Pioneer Nat. Title Ins. Co., plaintiffs-appellants.
    Mmahat, Gagliano, Duffy & Giordano, Nicholas J. Gagliano, Metairie, for Mark A. Oswald, d/b/a Interior Trim Co., appellant.
    Gerald P. Webre, Metairie, for Reverend C. T. “Preacher” Walker, appellant.
    Bernhardt C. Heebe, New Orleans, for Nu-Way Steel & Supply, Inc. appellee.
    Hoppe, Kelly & Dupepe, Henry B. Hoppe, Jr., and Don J. Dupepe, Metairie, for C. J. Christina, Inc., Advanced Painting, Inc., and H. C. Seals, Jr., appellees.
    Cronvich & Wambsgans, Richard M. Mi-chalczyk, Metairie, for Gats, Inc., appellee.
    Joseph N. Naccari, New Orleans, for Louis Jordano, Jr., d/b/a Jordano Const. Co., appellee.
    Mmahat,' Gagliano, Duffy & Giordano, Nicholas J. Gagliano, Metairie, Dodge, Friend, Wilson & Spedale, Joseph E. Friend, William J. Oberhelman, Jr., New Orleans, for Crane Supply Co., Inc.; Cancienne Const. Co., Inc.; Mark A. Oswald, d/b/a Interior Trim Co., Tulane Hardwood Lumber Co., Inc. and Hill-Behan Lumber Co., appellees.
    Sidney D. Torres, III, and George N. Bis-chof, Jr., Chalmette, for Custom Painting Contractors, Inc., and C. J. Kerner, d/b/a Kerner Builders, appellees.
    Harold E. Kytle, Kenner, for Rite-Way Plumbing, Inc., appellee.
    Jospeh S. Russo, Jefferson, for Dowdy Bros. Concrete Co., Inc., intervenor-appel-lee.
    Before REDMANN, ' STOULIG ' and MORIAL, JJ.
   STOULIG, Judge.

This appeal involves the ranking of claims by creditors of Novem, Inc. (Novem), a corporation that failed in an attempt to complete construction of a motel. The building contract was not recorded.

This litigation began on December 2,1974 when the First Wisconsin National Bank of Milwaukee (bank) filed a petition to foreclose via executiva on a mortgage it held on property at 2731 Causeway Boulevard, Me-tairie, for Novem’s failure to pay the amounts due on a $1,850,000 note. At this time construction on the partially completed motel was at a standstill because Novem could not obtain funding to complete the job. Meanwhile, numerous liens had been filed against the property on behalf of unpaid laborers and/or materialmen for services rendered or materials used in the partial construction. Because the lienholders claimed a preference over the mortgage creditor, the bank and its mortgage insurer, Pioneer National Title Insurance Company, filed several rules to rank privileges with the object of having its mortgage adjudicated as priming the liens of the numerous creditors cited.

Prom a judgment giving priority to the lienholders whose affidavits were filed long after recordation of the mortgage, the bank and its title company have appealed. Although several lienholders also appealed, they are not before us because their appeals were either dismissed as untimely or voluntarily because of compromise. By answer to the appeal, the demand for an increased judgment by Dowdy Bros. Concrete Co., Inc., is before us.

Appellants claim the priority of the mortgage on either of two theories: (1) that it was recorded before any work was done or material delivered to the building site; and/or (2) appellees failed to file their respective lien affidavits within 60 days of the last work performed on the motel.

In this case the ranking of competing claims is governed by that section of the Private Works Act dealing with unrecorded building contracts, R.S. 9:4812, et seq. We quote the portion of that statute relevant to the issues before us:

“When the owner * * * undertakes * * * construction * * * for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required, the owner or his authorized agent may file an affidavit that the work has been completed, then any person furnishing service or material or performing any labor on the said building or other work may record in the office of the clerk of court or recorder of mortgages in the parish in which the said work is being done or has been done, an affidavit of his claim, which recordation, if done within sixty days after the date of the affidavit of completion or if no affidavit of completion is filed within sixty days after the date of the last delivery of all material upon the said property or the last furnishing of services or the last performance of labor upon the same, by the said furnisher of material or services or the said laborer, shall preserve a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have furnished service or material or performed any labor in connection with the said work or improvement, as his interest may appear. The said claim, recorded as aforesaid, shall preserve a privilege against the property for a period of one year from the date of its recordation, and may be enforced by a civil action in any court of competent jurisdiction in the parish in which the land is situated and such cause of action shall prescribe within one year from the date of the recordation of the claim in the mortgage records of the office of the clerk of court or the office of the recorder of mortgages. * *
******
“The said privilege shah be superior to ail other claims against the land and improvements except taxes, local assessments for public improvements, a bona fide mortgage, or a bona fide vendor’s privilege, whether arising from a sale or arising from a sale and resale to and from a regularly organized homestead or building and loan association, if the vendor’s privilege or mortgage exists and has been duly recorded before the work or labor is begun or any material is furnished. * * *” (Emphasis added.)

A pivotal issue is whether the mortgage was recorded before any construction was begun or any materials furnished. R.S. 9:4819(A)(1) sets the criteria by which this determination may be made. We quote:

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

The trial judge found as a fact, and the record amply supports his findings, that the mortgage was not filed in time to prime the claim of the various lienholders because the following activities had taken place on the jobsite before the mortgage was recorded on December 13, 1972: (1) the jobsite had been cleared by a bulldozer at a cost of $300; (2) two portable construction shacks were placed on Novem’s land; the corners of the building were staked as a guide to driving of test piles; (4) 18 pilings, valued at $16 each, were delivered to the jobsite, of which 15 were used in the structure itself and were not test pilings; and (5) wooden stakes valued at $500 were stored in one of the construction buildings. These activities constituted a construction beginning and a material delivery sufficient to give the lien-holders priority over the mortgage creditor, whose security device was not recorded in sufficient time to give it the superior ranking afforded mortgagees by R.S. 9:4812.

The next issue raised by the bank is timeliness of filing the various liens. Briefly, construction was closed down on July 10, 1974. Novem continued in its efforts to secure financing to complete the.motel and in the latter part of September 1974, had a fence constructed around the premises to discourage vandalism. On December 2, 1974, the foreclosure was filed and it is from this date that the trial court determined the 60-day period began to run within which laborers and materialmen could file liens.

Of the 13 lienholders now before this court as appellees (the balance of the claims have been compromised), appellants’ second argument is not applicable because the liens were filed within 60 days of the last day appellants contend the job was abandoned by Novem, namely July 10, 1974. We note the creditors; the dates the liens were recorded that clearly brought them within the timely filing period of R.S. 9:4812 no matter whose computations are used; and the amount the judgment of the trial court recognized as due them:

1. Gats, Inc., August 12, 1974, $994.35.
2. Rev. C. T. “Preacher” Walker, July 3, 1974, $726.80 plus $3.75 costs.
3. Hill-Behan Lumber Co., September 6, 1974, $4,805.13.
4. R. J. Marchand & Co., Inc., August 22, 1974, $5,547.24.
5. Loy E. Ernest and John J. Orfanos, d/b/a Ernst & Orfanos, August 15, 1974, $3,752.
6. R. A. Louviere, Sr., August 26, 1974, $3,047.40 plus $3.75 costs.
7. Advanced Painting Company, June 7, 1974, $8,000.
8. Dowdy Brothers Concrete Company, Inc., August 8, 1974 $7,780.52.
9. Tulane Hardwood Lumber Co., Inc., August 12, 1974, $19,537.49.
10. Rite-Way Plumbing, Inc., April 22, 1974, $30,100.88.
11. H. C. Seals, Jr., August 1974, $1,215.20.

There remains two lienholders to whom the argument of timeliness of recordation might be applied were the bank’s position on the date of abandonment meritorious, that is, that the 60-day filing period began to run on July 11, 1974 (the day following the last physical construction activity on the property). These are Rodney Coco, Inc., whose lien was filed December 18,1974 and C. J. Christina, Inc., whose lien was filed October 31, 1974. Both were filed timely.

In this case the time began to run only when it became apparent that the owner could not complete the job and had abandoned it. This did not become evident until December 2, 1974 when the bank initiated foreclosure proceedings. Until that time, Novem attempted to obtain more financing to finish the project that was stopped when it was nearly completed.

Before an abandonment date can be fixed on an incomplete construction project, there should be some outward manifestation of the owner’s intent to give up the project. In Singer Lumber Co. v. King, 45 So.2d 567 (La.App.Orl.1950), the court discussed this problem and its resolution is apposite here. We quote:

“We are, however, not concerned with the question of when to commence the sixty-day period when the work is completed. Our problem is when to commence the sixty-day period when the work is never completed and the job is abandoned. The District Judge decided that even if it should be properly held that where there is an actual abandonment and the owner decides not to have the work continued, the sixty-day period commences at the time the owner so decides, nevertheless the lien filed by the plaintiff here was not filed too late because long after the discontinuance of the actual work on the project and, in fact, until well within the period of sixty days before the lien was filed, the owners had not abandoned the project and were still hoping to be able to have the contractor recommence operations.
“We are not at all certain as to when the sixty-day period should commence when there is an actual definite abandonment of the job. We find it difficult to persuade ourselves that in such a case the beginning of the sixty-day period may be fixed by any mental determination of the owner. The statute, as interpreted by the Supreme Court, declares that where there is a contract, the materialmen and the laborers and others shall have sixty days from the acceptance of the work •within which to file their liens, and that where there is no contract, they shall have sixty days from the completion of the work. A prospective lienor, therefore, need only watch the job to see when the work is completed since he knows that after it is completed he will still have sixty days within which to record his lien. So long as it is not completed, he knows that he still has ample time. How can he determine when the owner has agreed to an abandonment? How can he know that the time for the filing of his lien is running out? He will see that the work, in its incomplete state, is still unfinished and yet when he records his claim he will be told that more than sixty days before that the owner decided that he would go no further with the work and that, therefore, he has lost his lien.
“Still if we assume that such result may be accomplished by the mere mental determination of the owner that the work is abandoned, we must nevertheless agree with our brother of the District Court that at the time this lien was filed there had not expired sixty days from the time at which the defendants still hoped to be able to persuade the contractor to proceed with the work. * * *”45 So.2d at 570.

Therefore, we conclude the liens of the appellees were timely recorded and were properly given higher priority than appellants’ mortgage.

We note appellants are attempting to argue the proceeding below simply was for the purpose of ranking creditors and not for judicially recognizing the dollar amount to which each lienor is entitled. We disagree. This course would require a multiplicity of trials and appeals were we to first rank the creditor by name and remand for a second trial to set the amount of money due to each. We further note appellant abandoned this issue by not raising it as a specification of error in brief.

Finally, we consider the request by Dowdy Bros. Concrete Co., Inc., that we revise the judgment recognizing it as a lien creditor for $7,780.52 to include interest and attorney fees. This appellee claims interest at the rate of 1.5% per month on the unpaid balance plus 20% attorney fees based on this printed caveat on each bill of lading presented at the jobsite when the material was delivered:

“Purchaser hereby agrees to pay 1V2% interest per month plus all legal costs involved in the collection of this bill”

On the same dray receipt this contradictory provision appears:

“Purchaser hereby agrees to pay 8% per month plus all legal costs involved in the collection of this bill”

Dowdy Brothers has not asserted that any authorized agent of Novem, Inc., ever agreed to one or the other of the conflicting conditions, either before the material was initially ordered or at any point when the material was being delivered. The bills of lading, shipping tickets that accompanied the material when it was delivered, are signed by various individuals at the jobsite who accepted the material. None have been identified. Because appellee relies on the bill of lading to establish the alleged interest and fee agreement, we assume there was no discussion of. this item when the parties contracted for the sale of cement.

Absent consent, there is no contract. C.C. art. 1800. In this case we are presumably dealing with an alleged modification of the initial agreement during the course of performance or delivery of the material. In theory the silence of Novem, Inc., in accepting material accompanied by a dray receipt stipulating interest for late payment and legal costs to collect, might constitute an implied acceptance of the condition. But the record before us does not contain sufficient proof to establish a modification of the terms by implied consent. In Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970), the Supreme Court stated the party claiming the modification in such cases must prove it as follows:

“While assent to a contract may be implied, that implication must be established and cannot be presumed. Defendant’s burden was to establish a lease for a fixed term. He had to prove a meeting of the minds of the contracting parties that their relationship as lessor and lessee was for the alleged fixed term, by either express language or by circumstances (action or inaction) that necessarily implied the proposition. The facts and circumstances of the instant case establish only the existence of a lease by the month between the parties because of the recon-duction of the written lease.” 235 So.2d at 577.

For the reasons assigned, the judgment is affirmed. Appellants are to pay all costs of this appeal.

AFFIRMED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge,

dissenting in part. I concur that the presence of 18 pilings worth $16 each included, within R.S. 9:4819(A)(1), “material . . . delivered to the job site which is visible upon inspection and . . . had a value in excess of” $100. (Only three of the 18 were for test piling, which is “excluded from this definition”.)

Under § 4812, the general rule is that a building contract “privilege shall be superi- or to all other claims . . . A mortgagee can outrank a privilege claimant only by bringing himself within the exception to that general rule and therefore has the burden of proving that his mortgage “has been duly recorded before the work or labor is begun or any material furnished.” Hortman-Salmen Co. v. White, 1929, 168 La. 1067, 123 So. 715. It is therefore the mortgagee’s burden to establish that the pilings were delivered after recordation on December 13,1972. (The recorded affidavit method of § 4819(A)(3) was not used.)

The evidence leaves the matter quite doubtful, and therefore the mortgagee has failed to carry its burden of proof. The mortgagee makes a plausible argument, based on other testimony of the pile-driver’s business practice and of the owner’s determination of the date for the test driving, that the order for the piles was not given until December 15 (the superscribed order form may be dated 12, 13 or 15), but that date is inconsistent with the seeming presence of the pilings in a December 14 photograph. The pile driver testified that he got the order on December 12 and delivered the piles by the next morning. We cannot say the trial judge erred in holding the mortgagee’s proof insufficient to show delivery after the mortgage was recorded.

Ranking of the mortgagee as inferior to privilege claimants is therefore correct as to the 11 claims recorded within 60 days of July 10, 1974, the last day on which any labor was done or material furnished for the building.

I dissent from recognizing a privilege for two claimants who recorded more than 60 days after July 10. Singer Lbr. Co. v. King, La.App.Orl. 1950, 45 So.2d 567, and R. F. Mestayer Lbr. Co. Inc. v. Tessner, La.App. Orl. 1958, 101 So.2d 238, should (with en banc approval) be overruled.

Singer misread both the statute and National Homestead Ass’n v. Graham, 1933, 176 La. 1062, 147 So. 348, upon which it purported to rely. National’s prime concern was one of statutory construction involving claimants who had recorded liens within 60 days of the last supply of labor or material by others, but more than 60 days after the last supply by the claimants themselves. National construed § 4812 (by pari materia construction, C.C. 17, with § 4802’s 30 days from “notice of acceptance”) to provide one 60-day period for all claimants, irrespective of when the claim arose, to run from (the later of) “the last delivery of all material ... or the last performance of all services or labor”. In effect, National interpreted the statute’s clause “by said furnisher of material or said laborer” to modify “if done” rather than “the last delivery of all material ... or the last performance of all services or labor”.

In the course of its pari materia comparison of § 4802’s lien-inscription period running from “notice of acceptance” (in the case of a timely-recorded building contract), the court noted the analogy between “acceptance” and “completion”, yet expressly related “completion” to the statutory last-labor-or-material scheme: “The work is completed when the last material is furnished and the last labor is performed.” 147 So. at 352.

But National is not a case in which the building had been completed. National is a case of an incompleted building. The chronologically last claimant, however,

. says that he stayed on the work until October, 1930, and as to that he is not contradicted. Our conclusion is that the structure was never finally completed . , but that up to October, 1930, [the owner] hoped to complete it, and made efforts to do so.
Hope of being able to do so seems to have been abandoned about October 1, 1930, and Neville filed his claim on November 5. [147 So. at 353; emphasis added.]

Thus National, whether speaking deci-dendo of abandonment or obiter of completion, ties the beginning of the lien-filing period precisely to the last-material-or-labor rule of the statute.

Singer somehow missed the identity between the statute’s last-labor-or-material and National’s abandonment, and concluded that the statute no longer controlled. That conclusion is insupportable because of the strict interpretation necessarily placed upon statutes granting privileges (that is, statutes granting to one creditor the right to be paid before others, thus not only escaping the pro-rata rule of C.C. 3183 himself, but, worse, taking away from other creditors the amount that would otherwise have been available to pay them, at least pro-rata). C.C. 3185 speaks out of elemental fairness: “Privilege can be claimed only for those debts to which it is expressly granted [by law].”

Under the law, recordation only “creates” a privilege in favor of those labor or material claimants who record within 60 days of “the last delivery of all material . or the last furnishing of services or the last performance of labor . . . .” In the case of non-completion of a not-timely-recorded contract (governed by § 4812), “abandonment” cannot mark the beginning of that 60-day period unless it be the abandonment (just like National’s) that occurs when the last material and labor have been supplied. In that sense, abandonment here occurred July 10.

Singer felt, perhaps, the natural and reasonable urge to protect the lien claimant who, after all, was powerless to record or not record the general contract, to which he was not a party. Why, indeed, should the position of the laborer or materialman be worse because of non-recordation (or nonexistence) of a contract that was not his doing? These very considerations, however, have been acted upon by the legislature, whose solution was to provide 60 days for liens to be filed in the case of no timely-recorded contract, § 4812. The legislature provides 30 days more than in the case of a timely-recorded contract, § 4802. The legislature has rationally legislated, and we have, and Singer had, no basis to ignore its limitation on its grant of privilege.

Claimants Coco and Christina did not record their claims within the time period allowed by the statute which alone creates privilege, and they therefore do not have privileges. The contrary judgment by the trial court should be reversed.

Finally, I also agree with the rejection of Dowdy Bros.’ claim for interest and attorney’s fees.

      . Plaintiff did not appeal either the ranking or the amount of the judgment in favor of Custom Painting Contractors, Inc., for $481.89. Lien- or’s appeal to increase the amount of the award was dismissed by this court on February 28, 1977, for its failure to timely perfect the appeal.

      . Walker’s appeal to increase the amount of his award was dismissed by this court on February 28,1977 because of his failure to timely perfect it.

      . I doubt the majority’s four other alternate ratios for ranking the timely lien claimants above the mortgagee:
      “Clearing” the site is not “excavation”, which is the statute’s word for the only work or labor (without materials) that alters the mortgagee’s rank (by application of § 4819(A)(1) to § 4812). Portable construction shacks are not “material” used in the building-project. Stakes placed to mark the corners of the building so that test piles may be properly located are not “material” for the building (nor is it work or labor, since not excavation).
      Wooden stobs or stakes stored in a construction shack are not “visible upon inspection” of the job site.

      . National’s statute would thus read: “Any person furnishing . . . material or . labor may record . . .his claim . . . , which recordation, if done [here inserting “by said furnisher of material or laborer”] within sixty days after the date of the last delivery of all material ... or the last performance of all services or labor . . . , [here omitting “by said furnisher of material or laborer”] shall create a lien and privilege . . . .”

      . Not pertinent to our consideration are the subsequent jurisprudence that corrective measures do not start the 60-day period anew and the 1966 amendment to § 4812 authorizing recording an affidavit of completion from which the 60 days run.

      . Whether there is no timely-recorded contract because (1) recordation is late or (2) non-existent, or because (3) the contract is not written or because (4) there is no general contract, all such cases are governed by § 4812.


author: MORIAL, Judge.

text:
    Edna Green, Widow of Willis BOLDEN, Individually and on behalf of her minor son, John David Galway v. NEW ORLEANS PUBLIC SERVICE, INC., et al.
    No. 8277.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Rehearing Denied Sept. 9, 1977.
    Writ Refused Nov. 4, 1977.

      Carl 0. Brown, Jr., New Orleans, for plaintiffs-appellants.
    C. B. Ogden, II, New Orleans, for defendant-appellee.
    Before REDMANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Joseph David Galway appeals from a judgment denying him recovery of damages for personal injuries sustained on March 6, 1972 when an aluminum TV antenna he was holding came in contact with an energized power line owned and operated by defendant, New Orleans Public Service, Inc. (NOPSI). The case was tried before a jury which reached a verdict in favor of defendant and dismissed plaintiff’s suit. We affirm.

Plaintiff was eighteen years old at the time of the accident. He was attempting to erect a TV antenna on the side of the trailer in which he and his mother had been living for about two and a half weeks. The trailer was located in the Bayou View Trailer Park alongside Highway 11 in the eastern section of New Orleans. The NOPSI power lines ran along the highway about thirty-five feet above the ground. Plaintiff sought the help of Harry Jenkins, who lived across the highway, in raising the antenna. Jenkins agreed to come over to the trailer shortly. There is a conflict in the evidence as to what then occurred. Plaintiff testified that Jenkins took hold of the bottom of the rod while he walked it up to a vertical position. Plaintiff stated that he then saw a flash, heard a crackling noise, felt a shock and was knocked to the ground.

Plaintiff denied that Jenkins had given him any warning with respect to the danger of the wires and stated that he believed them to be telephone lines.

Jenkins testified that when he arrived at the trailer he noted that plaintiff had raised the antenna up into the area of the wires and warned him that he would be electrocuted if the rod hit the wires. Jenkins stated that plaintiff told him that would not happen because the antenna was grounded. Jenkins explained that he touched the rod with the intention of taking it down to a safe area. He then sustained a shock and was thrown back into the shells along the road. He was dazed but uninjured. He saw plaintiff had been knocked' into a garbage can and that his shirt was on fire. Plaintiff sustained serious burns on both of his arms resulting in the amputation of his left hand and lower arm and the partial paralysis of his right hand.

Plaintiff argues on appeal that the trial judge incorrectly instructed the jury on the applicable law. Plaintiff also argues that the trial court erred in denying him a new trial because the jury was improperly influenced by the press and because the verdict was contrary to the law and evidence.

We must first reject plaintiff’s contention that the jury was improperly influenced. The press release involving the raising of utility rates could have had an equally adverse effect on either party.

We also find that the jury was properly instructed on the issue of contributory negligence. We do not think it is necessary to pass on the remaining arguments of plain-' tiff because we find that the record establishes that plaintiff was contributorily negligent rendering the issue of defendant’s negligence moot.

It has been well established in the jurisprudence of this state that a person who knowingly allows a metal object to come into contact with an uninsulated energized wire is deemed to be contributorily negligent. Gates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976); Bouchon v. New Orleans Ry. & Light Co., 154 La. 397, 97 So. 587 (1923); Hebert v. Coca Cola Bottling Company, 272 So.2d 737 (La.App. 3 Cir. 1973); Bordelon v. Continental Casualty Company, 229 So.2d 761 (La.App. 3 Cir. 1969); Thomas v. Gulf States Utilities Co., 128 So.2d 323 (La.App. 1 Cir. 1961). Since we do not have the benefit of the specific findings of the jury we must presume that they resolved all factual conflicts in favor of the defendant. Hanover Fire Insurance Company v. Sides, 320 F.2d 437 (5 Cir. 1963). Accordingly, we must accept Mr. Jenkins’ version of the incident as accurate and conclude that plaintiff was aware of the presence of the overhead electrical wires and, nevertheless, assumed the risk of raising the aluminum antenna to a height which brought it in touch with the wires.

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.


text:
    STATE of Louisiana in the Interest of Marcy Lynn PIERCE.
    No. 8282.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Rehearing Denied Sept. 9, 1977.
    Writ Refused Nov. 4, 1977.

      Loyola Law School Clinic, Arthur A. Lemann, III, Supervising Atty., New Orleans, John M. Standridge and Kim A. Gandy, Student Practitioners, for respondent-appellant.
    Gillespie & Jones, George L. Gillespie, Jr., Lyman L. Jones, Jr., Metairie, for petitioners-appellees.
    Before REDMANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

A petition was filed by the State of Louisiana in the interest of Marcy Lynn Pierce, a minor, seeking to have the child declared abandoned pursuant to LSA-R.S. 9:403. After a hearing, the trial judge found the child to have been abandoned by her mother, Mrs. Jo Ann Carline Pierce, a/k/a Jo Ann Harden, and decreed that Marcy Lynn Pierce no longer subject to her parental authority. Plaintiff appeals from the judgment.

Marcy Lynn Pierce was born on January 11, 1972 during the marriage between Jo Ann Carline Pierce and Gary Pierce. The child’s parents were subsequently separated and divorced. Mrs. Pierce has since remarried. The paternal grandparents were granted temporary custody of the child on June 6, 1973 by the Juvenile Court for the Parish of Jefferson. Subsequently, the Twenty-Fourth Judicial District Court awarded the custody of the child to the mother on June 20, 1975 on the condition that the child would not be removed from the jurisdiction of the court. However, sometime in June or July the respondent left the state with her child and went to Georgia. The grandparents and father became aware of the child’s absence and informed the Juvenile Court. The Court issued a warrant for the child in August 1975. The respondent was arrested in Val-dosta, Georgia on' November 27, 1975 for issuing a worthless check. The child was placed in a foster home by the Georgia Welfare Department and the mother believed Marcy Lynn would remain there until her release from jail. The paternal grandparents, Mr. and Mrs. Nolan Pierce and the child’s father were informed of the child’s whereabouts and went to Georgia to pick her up on December 4,1975. The child was returned to Jefferson Parish and her father obtained permanent custody of the child on February 24,1976. On May 5,1976 the affidavit of abandonment was filed in the Juvenile Court for the Parish of Jefferson. A curator ad hoc was appointed to represent the absent respondent. The curator filed a general denial and also filed a motion for a continuance informing the court that he had located Mrs. Jo Ann Harden in Bloomington, Indiana and that she had advised him that she lacked the funds to be present in Jefferson Parish for the July 19, 1976 hearing. In her correspondence to the curator, Mrs. Harden stated that she would be able to be present in Louisiana on September 1, 1976 and requested that the hearing be continued until on or after that date. The Juvenile Court denied the motion for continuance on June 16, 1976 and the hearing was held on July 19, 1976. At the conclusion of the hearing the judge told the curator ad hoc that he was declaring the child abandoned and instructed him to write the respondent and inform her that she had thirty days from the date of the judgment within which to appeal. The curator wrote a letter dated July 22, 1976 notifying Mrs. Harden of the judgment and advising her to appeal within thirty days. Mrs. Harden sent a letter to the court dated July 24, 1976 advising the court of her desire to take an appeal. The trial judge refused to accept the letter as a formal notice of appeal on July 30, 1976. However, on August 18, 1976 a Judge Ad Hoc recognized the letter as a valid notice of appeal and granted the same. A formal petition for appeal was filed by the Loyola Law Clinic on Mrs. Harden’s behalf on August 18, 1976.

There are three issues presented to the court on appeal: (1) whether or not the appeal was timely perfected; (2) whether or not the trial court abused its discretion in failing to grant a continuance and (3) whether or not the record supports the finding of abandonment by the trial court.

A brief was filed on behalf of the paternal grandparents, Helen and Nolan Pierce. The Pierces argue that under LSA-R.S. 13:1591 appeals from a final judgment of a juvenile court must be taken within fifteen days of the judgment and that respondent failed to file a legally sufficient appeal during this period.

We must disagree with appellee’s contention. We recognize the general rule that an appeal must be filed and perfected within the statutorily fixed period of time and the period may not be extended by the trial or appellate courts. State in Interest of Johnson v. Johnson, 303 So.2d 617 (La. App. 4 Cir. 1974). However, exceptions have been made in certain cases where a motion for appeal has been timely filed and the trial court erroneously refused to grant the appeal. Graves v. Kaiser Aluminum and Chemical Corp., 319 So.2d 323 (La. 1975). Succession of Jacobs, 5 Rob. 270 (1843).

We think that this case falls within the exception to the rule and conclude that the letter sent by Mrs. Harden within fifteen days of the judgment constituted a valid appeal. Our decision is influenced by the fact that the letter of Mrs. Harden, a lay person, apparently was in response to a letter of the curator written upon instructions from the court, and even more so by the fact that in the absence of this appeal the effect of the judgment of abandonment is definitive and irreversible.

Because of our conclusion on the merits, we need not decide whether the trial court abused its discretion in failing to grant respondent a continuance until September 1, 1976.

We conclude that the child was not abandoned within R.S. 9:403A because the conditions of the statute were not present. R.S. 9:403A requires that the child have been “deserted for a period of at least four months by his parent and the whereabouts of his parent are unknown and the parent has made no provision for the child’s care . .” All that is shown is that the mother was imprisoned on November 27, 1975, at which time the child went to the Georgia Welfare Department, whence the father recovered her December 4 (obtaining legal custody February 24,1976). The child was never deserted. (We need not decide whether it was proved that the mother’s whereabouts were unknown, or whether— knowing that the father and his parents had taken the child—the mother had made no provision for the child’s care.)

For the foregoing reasons the judgment of the trial court is reversed and the petition to decree the child abandoned is dismissed.

REVERSED.


text:
    FO-COIN COMPANY v. Edward R. DRURY.
    No. 8291.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Rehearing Denied Sept. 9, 1977.

      Cameron C. Gamble, New Orleans, .for plaintiff-appellant.
    Edward R. Drury, New Orleans, in pro. per.
    Clark A. Richard, Metairie, for defendant-appellee.
    Glenn L. Morgan, New Orleans, for Dr. Norman S. Hunt, third party defendant-appellant.
    A. W. Wambsgans, Metairie, for William M. Justice, Jr., third party defendant-appel-lee.
    Before REDMANN, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Plaintiff, Fo-Coin Company, filed a damage suit alleging that on March 29, 1974, approximately 14 months before the expiration of his written lease, the defendant, Edward R. Drury, wrongfully removed plaintiff’s installed laundry equipment from Drury’s apartment complex. Defendant, who acquired the property on July 20,1973, asserted he was not bound by the lease because a conveyance certificate obtained by the notary public who passed the act of sale did not reflect there was an outstanding recorded lease obligation on the property. Assuming the position of third party plaintiff, Drury impleaded William Justice, Clerk of the 24th Judicial District Court, and Dr. Norman Hunt, his vendor, as third party defendants, seeking indemnification, in the event he is cast in judgment, from either or both for negligently failing to include the lease on the conveyance certificate and/or for failing to inform him that a lease existed. Third party defendant Dr. Norman Hunt filed a reconventional demand against both the plaintiff and the defendant. Third party defendant William Justice also filed a third party demand against Dr. Hunt seeking indemnification should the clerk of court be cast in judgment. From a judgment dismissing plaintiff’s suit and all other demands, all the litigants have appealed.

The agreement between Dr. Hunt and Fo-Coin, dated May 29, 1970, which was registered in January 1971 in C.O.B. 727, folio 222, Parish of Jefferson, provides in part:

“* * * MANAGEMENT, desiring to supply its tenants of the premises hereinafter described with modern efficient laundry facilities which COMPANY is willing to supply as hereinafter specified, in consideration of the covenants and agreements hereinafter set forth and in the consideration of the sum of $1.00 to MANAGEMENT in hand paid by COMPANY, receipt of which is hereby acknowledged, hereby leases to COMPANY all of that certain real estate situated in 2134 Metairie Rd. Maison Metairie Apts, the City of Metairie, County of Jefferson, State of La. consisting of all laundry space in the project owned by MANAGEMENT known as Maison Metairie Apartments for the purpose of installing, maintaining and servicing a special washing, drying and laundry equipment system therein for the term of five years, commencing on the date hereof and ending on the 29 day of May, 1975 * * *.”

The apartment owner was to receive monthly 40% of the gross proceeds from the coin-operated laundry equipment.

After Drury took possession of the apartment complex, Fo-Coin continued to operate the laundry concession for approximately eight months, paying defendant an average of $35 per month. Approximately 60 days before the eviction, Drury advised plaintiff’s owner, William Fothe, that he would like him to remove his laundry equipment. Fothe advised defendant or one of his agents that plaintiff had a written lease guaranteeing possession until May of 1975. At this point Drury, an attorney, checked the conveyance records of Jefferson Parish and learned there was in fact a recorded lease that the clerk of court failed to note on Drury’s preacquisition conveyance certificate. Nonetheless, concluding he was not bound by the terms of the lease because the conveyance certificate failed to note it, Drury persisted in his request that plaintiff vacate and when Fo-Coin refused to comply, Drury used self-help and disconnected plaintiff’s machinery, placing it in the covered breezeway of the apartment complex. When Fothe became aware of this, he had the equipment picked up.

Defendant contends he is not liable for wrongful eviction because the agreement was a service contract, as opposed to a lease. We disagree. C.C. art. 2670 requires a contract of lease to specify the thing leased, the price to be paid and the consent of the contracting parties. The consent is not disputed. The “thing” is the laundry space in the complex, which, while not specifically described in the contract, was known to everyone involved in this litigation. The price was 40% of the gross proceeds. While the record reflects the lessor had no system by which it verified what the receipts were, there is no prohibition against the lessor accepting the accounting rendered by the lessee.

Nor can defendant avoid liability for wrongful eviction by relying on a clear conveyance certificate. Public registry protects the rights of third parties. C.C. art. 2254, R.S. 9:2721. And this is true even where a clerical error in issuing a conveyance certificate results in a purchaser taking title failing to be apprised of the outstanding obligation running against the property he acquires. Lewis v. Klotz, 39 La.Ann. 259, 1 So. 539 (1887).

Defendant, having breached the obligation to plaintiff imposed by C.C. art. 2692(3) to maintain the lessee’s peaceable possession is liable in damages. First, plaintiff claimed a loss of income of $854.28; however, despite exhaustive efforts exerted by all counsel, Fothe failed to prove his loss of profit. Although he operated his business for 25 years, which consisted of placing and maintaining washers and dryers in multiple dwelling buildings, he said he could not explain to the court from his records what his net profit was from his operation in this particular apartment complex. It is only from his own records that the loss, if any, could have been ascertained and since he failed to establish what should have been readily ascertainable from his own books and tax records, we cannot allow recovery.

Plaintiff is, however, entitled to general damages for wrongful eviction and the disturbance of his peaceable possession guaranteed by C.C. art. 2692. Defendant’s decision to evict apparently was based on an interpretation of law we do not uphold concerning to what degree the conveyance certificate affected the lease agreement. Then, he resorted to self-ejectment, rather than file eviction proceedings in the proper court. When a lessor takes the law in his hands by unlawfully dispossessing a tenant, he commits a trespass and is liable for general damages. See Weber v. McMillan, 285 So.2d 349 (La.App. 4th Cir. 1973), and cases cited therein. We think an award of $750 is appropriate under the circumstances.

Drury’s third party demands against Dr. Hunt and Mr. Justice for indemnification must be dismissed. Before he resorted to the eviction, defendant was fully aware of the existence of the lease and its inscription in the conveyance records. The damages he incurred are attributable to his own errors in legal judgment by physically evicting the lessee and were not based on the prior error of the clerk of court or the omission of Dr. Hunt to inform him of the lease agreement prior to the sale.

Plaintiff further seeks attorney fees of $500 under the authority of C.C. art. 1934 and Smallpage v. Wagner & Wagner, 84 So.2d 863 (La.App. Orl.1956). The codal article limits recovery of attorney fees to situations where the “ * * * creditor be guilty of any bad faith * * *.” The record does not support an attorney fee award under C.C. art. 1934(4) or (5) — or the Smallpage application.

For the reasons assigned, the judgment appealed from is reversed insofar as it dismisses the main demand, and it is now ordered that there be judgment in favor of plaintiff, Fo-Coin Company, and against defendant, Edward R. Drury, for $750 with interest from date of demand. In all other respects, the judgment is affirmed. Defendant is to pay all costs.

REVERSED IN PART; AFFIRMED IN PART.

REDMANN, J., concurs with written reasons.

REDMANN, Judge,

concurring.

If the owner’s 40% of gross averaged about $35 a month then the lessee’s 60% of gross averaged about $53 a month. He thus lost about $742 in the 14 months he was deprived of the leased premises. His costs presumably remained almost unchanged by the loss of this one location — he would not have been able, for example, to discharge an employee or to stop amortizing the machines from this location. The $750 award will compensate for that loss.


text:
    Samuel HAUGHTON v. FIREMAN’S FUND AMERICAN INSURANCE CO.
    No. 8559.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Rehearing Denied Sept. 9, 1977.
    Writ Granted Oct. 14, 1977.
    Jerome P. Halford, New Orleans, for plaintiff-appellant.
    Johnston & Duplass, Lawrence J. Du-plass, New Orleans, for defendant-appellee.

      Before RED MANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff Samuel Haughton appeals from a judgment dismissing his suit for Workmen’s Compensation benefits for total and permanent disability pursuant to LSA-R.S. 23:1221 et seq. We affirm.

The sole issue presented on appeal is whether or not plaintiff has established a causal connection between his total and permanent disability and his work-related accident.

Plaintiff was injured on the job on November 4, 1974 while employed as a laborer by the Jefferson Parish Sewerage Department. Plaintiff and a co-employee were loading a truck with planks when plaintiff tripped and fell twisting his left leg and sustaining a fracture of his left leg. Plaintiff was taken to the emergency room of West Jefferson Hospital where he was treated by Dr. Robert A. Fleming, an orthopedic surgeon. Dr. Fleming examined plaintiff and found that he had suffered a fracture of the distal femur bone of the left leg. The fracture was surgically immobilized by the placement of a metallic plate immediately above plaintiff’s knee joint with multiple screws on November 8, 1974. A biopsy was taken of the soft tissue and bone in plaintiff’s leg during surgery and it was discovered that plaintiff was also suffering from a pathological fracture diagnosed as a multiple myeloma. Dr. Fleming explained at trial that a myeloma is a bone marrow disorder which is akin to leukemia. He testified that it was a pre-existing condition which caused a structural weakness in plaintiff’s bones.

Dr. Fleming continued to treat plaintiff after his surgery and was still doing so at the time of trial. However, in a February 3, 1976 report Dr. Fleming stated that the fracture sustained in the work-related accident had healed satisfactorily and that plaintiff was prevented from returning to his former occupation solely because of the myeloma condition. The doctor was of the opinion that plaintiff had sustained a twenty-five percent residual disability to his left lower extremity as a result of the trauma.

The defendant compensation insurer paid plaintiff compensation benefits from the date of the' accident until June 4, 1976. At that time the defendant terminated the payments on the basis of Dr. Fleming’s February 3,1976 report relying on his opinion that plaintiff was no longer prevented from working as a result of the job-related accident.

Prior to the accident, plaintiff, a sixty-two year old man engaged in strenuous physical labor which involved digging ditches, lifting heavy materials and tools and breaking up cement with a jackhammer.

Plaintiff testified he had no problem performing these duties prior to the accident. He stated that since the accident he has been unable to do any type of work at all. Plaintiff’s foremen and co-employees testified that he had been a good worker and that he had performed all his duties without complaint before the accident.

Plaintiff argues that his residual disability is aggravated by the myeloma causing him to be totally and permanently disabled. Plaintiff also contends that it is possible that he has been permanently disabled by the 25% residual disability to his leg. Plaintiff argues that the defendant insurer acted arbitrarily and capriciously in terminating the benefits on the basis of Dr. Fleming’s report.

The trial judge found that plaintiff was prevented from returning to work by his myeloma condition alone and that there was no evidence presented to support a finding that the work-related incident precipitated or aggravated the myeloma problem. The trial court’s findings are supported by the record.

The only medical testimony offered at trial was that of the treating physician. Dr. Fleming treated plaintiff for over a year and a half and was firmly of the opinion that plaintiff’s traumatic fracture was completely healed and that the sole medical cause for plaintiff not being able to return to work was the existence of the myeloma condition.

In Tantillo v. Liberty Mutual Insurance Company, 815 So.2d 743 (1975) the Supreme Court recognized that lay testimony must be given proper consideration in compensation cases, but also held that great weight, almost to the exclusion of other evidence, must be given to uncontradicted medical evidence which is directed toward a complex scientific question. We find that the medical evidence is controlling in this case and that plaintiff’s present disability is not causally connected to the work-related accident. See Rodriguez v. Security Insurance Group, 344.So.2d 1177 (La.App. 4 Cir. 1977); Anderson v. Jefferson Mechanical Contractors, Inc., 301 So.2d 420 (La.App. 4 Cir. 1974).

We are aware of the legal principle that an employer takes an employee as he finds him and that he is liable for the payment of compensation benefits where an accident is disabling because of an employee’s pre-ex-isting condition. However, that is not the situation in this case. Plaintiff’s traumatic fracture was not prevented from healing by his pre-existing myeloma. Nor is there any evidence to support a finding that the mye-loma was aggravated by the trauma.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: MORIAL, Judge. LEMMON, Judge,

text:
    BLAISE PARKING AND ENTERPRISE CORPORATION v. PROJECT SQUARE 221.
    No. 7905.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 14, 1977.
    Rehearing Denied Sept. 9, 1977.
    Writ Refused Nov. 4, 1977.

      Charles E. McHale, Jr., Charles J. Rivet, New Orleans, for plaintiff-appellee.
    Deutsch, Kerrigan & Stiles, Frank J. Per-agine, James A. Burton, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   MORIAL, Judge.

Plaintiff brought this suit for a declaratory judgment seeking a judicial determination of the rights of the parties to a lease agreement involving the parking garage which services the One Shell Square office building in New Orleans.

Plaintiff Blaise Parking and Enterprises Corporation entered into a lease agreement with Gerald Hines, providing plaintiff with the sole and exclusive right to operate a self park garage adjoining the building. Hines assigned his rights under the lease to defendant Project Square 221, (Project) a partnership which owned the One Shell Square office complex. The lease afforded Project several options to lease back car stalls to provide contract parking to the building’s tenants and their employees. An amendment to the lease provided Project with the right to reserve the two top floors of the garage for use by the officials and employees of the Shell Oil Company. The remaining contract parkers were permitted to park throughout the facility except on the first level containing twenty-two spaces which were specifically reserved for Blaise for transient parking. Under the provisions of the lease Blaise was entitled to rent any of the car stalls not in use by contract parkers at any given time to transient par-kers. The transient parking operation is a vital source of revenue to Blaise.

The parking facility consisted of ten levels containing 781 stalls. Customers gain access through a gate on the third level either by taking an automatically dispensed ticket (transient parkers) or by inserting a magnetic card into a slot (contract parkers).

A contract parker when exiting inserts the magnetic card into a slot causing a gate to rise and permitting the parker to leave the garage. The ticket customer must stop at a manned booth and pay a charge based on the amount of time his car was parked in the garage. Plaintiff claims that problems developed with this system because contract parkers allowed transient parkers to use their magnetic cards to exit without payment of the parking fee.

There are several issues before the court. The first issue concerns the number of stalls to which defendant is- entitled to lease back pursuant to the provisions of Article 7 of the lease. The parties are also in disagreement as to the amount of control each has over the operation of the facility and the customers using it. There are also issues involving the award of attorney’s fees, cost and expert fees.

Article 7 of the lease provides:

LESSOR’S CONTRACT AGREEMENT
LESSOR agrees and does hereby let from LESSEE and LESSEE does hereby agree to provide to LESSOR car stalls for the accommodation of the parking and storage of standard size (or compact) automobiles on the following terms and conditions:
(a) Fifty (50%) per cent of all car stalls in the LEASED PREMISES at the rate of $375.00 per stall per year;
(b) It is the intention of LESSOR and LESSEE that of the remaining fifty (50%) per cent of the car stalls LESSEE shall, subject to the provisions of subparagraph (d) below, retain 250 stalls for the accommodation of LESSEE’S in and out, or transient parking patrons;
(c) After deducting from the total number of car stalls in the LEASED PREMISES the fifty (50%) per cent thereof provided for in subparagraph (a) above, and the 250 stalls provided for in subparagraph (b) above, LESSOR may, upon written notification to LESSEE, lease all or any part of the remaining car stalls from LESSEE at an annual rental of $600.00 per stall, less the amount of gross revenue which may be derived by LESSEE from the rental of said stalls to in and out or transient parking patrons during the evening or night hodrs, after 6:00 P.M. o’clock until the next 7:00 A.M. o’clock, Saturdays, Sundays and legal holidays, but in no event shall the annual rental due for each of said stalls under this subparagraph (c) be less than $480.00;
(d)Of the 250 car stalls retained by LESSEE pursuant to the provisions of subparagraph (b) above, LESSOR shall have the right and option, upon written notification to LESSEE, to lease all or any part of said 250 stalls at an annual net rental of $600.00 per stall.
Whatever rent may be due and payable by LESSOR to LESSEE under the provisions of subparagraph (a), (c) and (d) above, shall be designated as “CONTRACT PARKING RENT” and shall be due and payable by LESSOR to LESSEE in monthly increments, commencing on the same date as the first rental, PERCENTAGE or GUARANTEED, is due by LESSEE to LESSOR and in the event LESSOR shall fail to make payment to LESSEE of any monthly increment for any reason on or before the third (3rd) day of the month said amount is due, then and in that event LESSEE shall have the right and is hereby given the express right and privilege of deducting said CONTRACT PARKING RENT from any amounts of GUARANTEED or PERCENTAGE rental which may be due by LESSEE to LESSOR under the terms of this lease and the obligation of LESSOR for CONTRACT PARKING RENT shall be inseparable from the obligation of LESSEE for GUARANTEED and/or PERCENTAGE RENTAL so that LESSEE’S right of offset with respect to CONTRACT PARKING RENT shall at all times apply during the term of this lease. LESSOR further agrees that any vehicle designated pursuant to the rules and regulations established by LESSOR with tenants of LESSOR in other facilities constructed on UNDERLYING PREMISES as a contract car, shall be a vehicle owned or rented by any tenant in the facilities constructed on UNDERLYING PREMISES or any employee of any such tenant, so that CONTRACT PARKING RENT shall not apply to the general public. CONTRACT PARKING RENT shall be due and payable for fifty (50%) per cent of all car stalls as provided for in subpara-graph (a) above, by LESSOR to LESSEE notwithstanding the fact that LESSOR may designate fewer than said number of contract cars as LESSOR shall at all times during the term of this lease have the right to designate up to, at least, fifty (50%) per cent of all car stalls to receive contract cars for parking or storage by LESSEE within LEASED PREMISES. CONTRACT PARKING RENT shall be reviewed at the end of the three first years and at the end of each subsequent three lease years during the term of this lease and CONTRACT PARKING RENT for each car stall shall be increased by the number of dollars that LESSEE’S cost of operation of each car stall in the LEASED PREMISES is increased over the first LEASE YEAR (and the 4th, 7th, etc. LEASE YEARS with respect to subsequent three year adjustments), the first 4th, 7th, etc. LEASE YEARS being the base years and the 3rd, 6th, 9th, etc. LEASE YEARS being the years to be compared to the base year to determine the dollar increase in the cost of operation of each car stall in the LEASED PREMISES. Cost of operation shall include all expenses of LESSEE with respect to the operation, maintenance and management of the LEASED PREMISES, including all items of expense incurred whatsoever. Notwithstanding the provisions of the preceding paragraph in the event LESSOR’S tenant leases provide for acceleration of rent on a proportion or percentage basis relating to expenses of the subject year as related to the base year, then the acceleration as herein-above provided for CONTRACT PARKING RENT shall be on a percentage basis of increase of expenses rather than an acceleration based on dollars of increase of expenses. Notwithstanding any of the above, CONTRACT PARKING RENT shall in no way be reduced below the product of $375.00 times fifty (50%) per cent of all car stalls.
In addition to the CONTRACT PARKING RENT hereinabove provided for LESSOR agrees to indemnify, or pay to, LESSEE the amount of any Sales, excise or use tax LESSEE may be compelled to pay, on the said CONTRACT PARKING RENT.

Subparagraphs (a) and (b) were self-operative at the time the lease was signed. Originally defendant leased back 50% of the stalls or 390 car spaces and Blaise retained 250 stalls for transient parkers. In February 1973 defendant exercised its rights pursuant to subparagraph (c) and leased back the remaining stalls minus the 50% referred to in 7(a) and the 250 stalls in 7(b). In November 1975 defendant exercised its option under 7(d) and leased back the remaining 250 stalls listed in 7(b).

Plaintiff argues that upon exercising the option of subparagraph (c) defendant exhausted all of its options to lease back stalls. Blaise points out language in sub-paragraph (c) giving defendant the right to lease back a11 or any part of the remaining stalls. Blaise contends “that Project was required to elect to lease all the remaining stalls on February 8, 1973 and in not doing so waived any further rights under (d). Plaintiff concludes that defendant is only entitled to lease back 532 stalls.

Project argues that in exercising subpar-agraph (c) it did not in any way waive its rights under (d). Defendant points out there is no language to that effect in the lease.

The second issue concerns the extent of control of the two parties over the regulation of customers and over all operations of the facility.

Blaise argues that it is entitled to have a list of the names and addresses of the contract parkers in order to prevent the contract parkers from misusing their privileges and interfering with the successful operation of the garage. Project contends that it has the exclusive right to deal with its contract parkers and that plaintiff should not be allowed to interfere with the contractual relationship it has with its tenants. Blaise also contends that defendant breached the lease agreement by painting levels of the garage different colors and designating different areas for certain classes of contract parkers and in doing so is discouraging transients from parking in permissible areas.

Project argues that it is entitled to additional magnetic cards in a number in excess of the amount of spaces it rents to enable it to diversify its use of the spaces. Blaise argues that under the terms of the lease defendant is limited to renting to tenants of the building and their employees and should not be in need of additional cards for other uses. Blaise argues that the issuance of an unlimited number of magnetic cards will damage its transient parking business in violation of the lease.

Blaise is also asking the court to fix attorney’s fees and raise the expert fees. Project claims it is not responsible for attorney’s fees and that costs should be equally divided.

The trial judge found in favor of defendant on the issue of the number of stalls to which it was entitled to lease back. The court held that under the lease defendant was clearly entitled to lease back all of the available stalls except, for the 22 stalls on the first level which were specifically excluded by Article 8 of the lease. However, the court concluded that under the lease, Blaise has the exclusive right to operate the garage and to determine where cars would be parked except for the 150 spaces provided for the Shell Oil employees. The court further held that plaintiff was entitled to the names and addresses of the contract parkers and also denied Project the right to receive the extra magnetic cards. The court reserved to the plaintiff the right to have the court fix the attorney’s fees and fixed the expert fee at $200.00. The trial judge held the defendant liable for costs. We are in agreement with the trial court on all issues except the issue dealing with costs.

We find that Article 7 clearly gives defendant the right to lease back all of the stalls in the garage except for the twenty-two spaces on the first level. The only condition to this right was payment of the stipulated rental. We find no merit in Blaise’s contention that defendant was required to exercise its option under subpara-graphs (c) and (d) simultaneously.

Section 1 of the amendment to the lease provides in part:

“Notwithstanding any other provision of LEASE LESSEE shall have the sole and unrestricted right to park cars at any location within the garage facility as LESSEE deems fit and proper and LESSOR shall not have the right to designate particular spaces with respect to the car stalls which are provided for in Article 7 of LEASE with respect to ‘LESSOR’S contract agreement’ except that LESSOR and LESSEE do hereby agree that LESSOR shall have the right to use and designate not in excess of 150 car stall spaces on the top two levels or floors of the garage facility (which “top two levels or floors” are hereby defined to mean those two levels or floors nearest the roof of the garage regardless of whether they be located on the up or down ramp of said garage facility) for use by officials and employees of Shell Oil Company. .

We interpret this amendment to restrict defendant from designating particular areas of the garage for certain classes of contract parkers except for the exception made for Shell officers and employees. Therefore, Project is not entitled to paint the walls or put up signs directing certain classes of contract parkers to park on a certain level. We are not holding that Project is prevented from issuing any reasonable directives to its parkers but only those concerning parking in a particular area of the garage.

Article 2 of the lease provides in part: “. . . that LESSEE has the sole and exclusive right to operate said garage facility under and pursuant to the terms of this lease to the exclusion of any other person, firm or corporation, . . .

Article 3 provides in part that:

“LESSEE shall always be maintained in the peaceful and undisturbed enjoyment of LEASED PREMISES during the term hereof without the hindrance or disturbance of or by any person, firm or corporation whatsoever, . . .

Defendant Project 221 concedes that the above provisions provide plaintiff with the exclusive control over the operation of the facility. Plaintiffs responsibilities include hiring parking attendants and cashiers, obtaining insurance coverage, and maintaining and repairing the premises. Plaintiff also agreed to hold Project harmless for any liability arising out of the use of the premises. The evidence at trial shows that plaintiff did not enter into the lease solely to perform management duties but also to obtain revenues from transient parking. We find that in order to make such an endeavor financially feasible plaintiff must have some means of controlling abuses by the clientele such as contract parkers allowing others to use their magnetic cards to obtain free parking. Therefore, we find that plaintiff Blaise is entitled to a list of the names and addresses of the contract parkers using the facility.

For the same reason, Blaise is entitled to limit the number of magnetic cards to which defendant is entitled. Excessive number of cards will lend to further abuse of the accounting system and loss of revenues. Since defendant is paid a percentage of the revenues by plaintiff, it is to the advantage of both parties to keep violations in check. Therefore, we find that Project is not entitled to any additional magnetic cards.

ATTORNEY’S FEES, COSTS, EXPERT FEES

LSA-C.C.P. Article 1872 dealing with Declaratory Judgments provides that:

“A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”

C.C.P. Article 1878 provides:

“Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is considered sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.”

The trial court in its judgment reserved the right of plaintiff to have the court fix reasonable attorney’s fees. The trial judge did not actually award attorney’s fees ruling in conformity with the provisions of LSA-C.C.P. Article 1878. Therefore, in order to obtain attorney’s fees or any other further relief, plaintiff must file a petition for such as provided for in LSA-C.C.P. Article 1878. See Burton v. Lumbermens Mutual Casualty Company, 152 So.2d 235 (La. App. 4 Cir. 1963). -

The trial judge was incorrect in assessing all costs against defendant. Both parties had some responsibility in promoting the litigation and thus the costs should be divided. Miller v. Housing Authority of New Orleans, La.App., 175 So.2d 326, amended in part, 249 La. 623,190 So.2d 75, on remand, La.App., 200 So.2d 704.

We find that setting expert fees and taxing them as costs are matters within the We find that setting expert fees and taxing them as costs are matters within the

For the foregoing reasons the judgment of the district court is reversed as it relates to court costs and all court costs are divided equally between the plaintiff and defendant; in all other respects the judgment of the district court is affirmed.

AFFIRMED IN PART, REVERSED IN PART.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurs and assigns reasons.

The crucial issue is: Which party to the lease has the right to oversell the 759 contract parking stalls?

The parties agree that Blaise is contractually obligated to provide Project with 759 parking spaces at any given time and, as limited by this obligation, can otherwise park a transient customer in any unoccupied space (except the two upper levels designated for Shell Oil Company). Project contends, however, that Blaise has been paid for the use of 759 spaces and that since it (Project) has the right to park 759 contract ears in the garage at any one time, it can oversell the 759 contract spaces, the only limitation being that Blaise can refuse to admit contract cars when the counter shows there are already 759 such cars in the garage.

The contract has no specific provision as to the right to oversell.

Since Blaise has the exclusive right to operate the parking facility, the lease is more reasonably interpreted to give the ex-elusive operator the right to oversell. Project’s full utilization of the rights it asserted in this litigation would effectively restrict Blaise’s transient parking to the 22 designated spaces on the lower level. One cannot reasonably conclude that the contracting parties intended Blaise would operate a 22-space parking facility, especially when one considers (1) Blaise’s obligations to keep the premises “open to the public for business upon a twenty-four (24) hour basis during each day of the week”, to maintain and repair the premises, to hold Project harmless from liability, and to carry insurance, and (2) Blaise’s right to park cars at any location it deems fit and proper.

Finally, although this is an unusual contract, the usual custom in the business is for the operator to have the right to oversell.

      . This figure is reached by subtracting the 22 spaces on the lower level reserved for transient parking from the 781 total number of spaces.

      . Statistics indicate that as high as 15% of contract customers do not use their space on a given day, and the right to oversell these unused spaces is one of considerable economic importance.

      .Under Project’s interpretation it could contract for night and weekend parking with its tenants so as to keep 759 spaces fully occupied 24 hours a day, seven days a week. Parking revenues during these hours were apparently intended for Blaise under Paragraph 7(c) of the original lease.


author: SAMUEL, Judge.

text:
    Charlene SNYDER v. AMERICAN THRIFT & FINANCE PLAN, INC.
    No. 8003.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Oct. 14, 1977.

      Moliere, Flanagan & Arceneaux, James T. Flanagan, Metairie, for plaintiff-appellant.
    Kullman, Lang, Inman & Bee, C. Dale Stout, New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and LEM-MON, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against American Thrift & Finance Plan, Inc. for $1,843.39, as liquidated damages, and for attorney’s fees under the Fair Labor Standards Act of 1938. Her claim is based on defendant’s failure to pay her time and one-half for alleged work by her in excess of 40 hours per week in violation of Section 207 of that act.

Defendant answered, denying liability, and denying the Fair Labor Standards Act had any application to the controversy between the litigants.

After a trial on the merits, judgment was rendered in favor of defendant, dismissing plaintiff’s suit at her cost. Plaintiff has appealed from that judgment.

Imprimis, we note Section 216(b) of the act provides in part: “Action to recover such liability [resulting from violations of the provisions of Sections 206 or 207] may be maintained in any court of competent jurisdiction by any one or more employees . ” Under that provision both state and federal courts have concurrent jurisdiction and a plaintiff-employee may sue in either.

In pertinent part, the statutory provision under which plaintiff sues, as it existed while plaintiff worked for defendant, read as follows:

. ., no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”

At the outset it is necessary to make clear Congress did not exercise its full power over interstate commerce so as to cause the Fair Standards Act to apply to activities which merely “affect commerce.” On the contrary, the act applies to “employees . engaged in commerce or in the production of goods for commerce . . . ” Moreover, even if an employer is engaged in commerce, the question of coverage under the act is determined by the activities of the particular employee concerned.

Plaintiff worked for defendant from November 10, 1971 to June, 1973 as an office employee. Defendant is a loan company organized under Louisiana law. It operates five branches, all within the State of Louisiana. During her employment, plaintiff worked at two of these branches, and performed her services in each. Her duties involved typing, greeting customers as they came in the office, answering the telephone, collecting payments brought in the office, and other similar clerical services. Her contact with the mails was limited to typing envelopes to mail collection notices. Her duties did not involve taking interstate telephone calls, but defendant admits she may have done so occasionally. She did not travel across state lines.

Defendant makes no loans across state lines; it lends only to Louisiana residents. It does not discount or pledge any of its notes or security, and borrows all needed working capital and other funds from Louisiana banks. It prepares its own truth in lending forms, promissory notes, mortgages, and other business forms and has them printed locally. It provides credit life insurance on some of its loans, and this insurance is written by a Florida corporation. However, all defendant’s dealings are with a local insurance agency which acts as intermediary between defendant and the Florida insurer. Consequently, all payments by defendant for credit life insurance premiums are made in Louisiana. The same basic arrangement exists with regard to hospital insurance policies made available to employees as a fringe benefit.

Defendant’s stock holders are all Louisiana residents. It has no office operations outside Louisiana, and it does not secure its loans with property or other collateral outside the state. Defendant’s advertising is restricted to Louisiana; it does not attempt to obtain business outside the state. It occasionally purchases advertising material from other states, but it is all used locally. The majority of its advertising is conceived and printed in Louisiana. It has made direct mail solicitation of loans, but such solicitations have been restricted to the metropolitan New Orleans area. Only responses to these solicitations by Louisiana residents are accepted by the company.

Defendant’s employees do not prepare loan authorizations, commercial paper, promissory notes, bills of lading, or any other similar documents for transmittal or use outside Louisiana. In addition, its employees do not prepare life insurance policies for transmission to another state. Defendant’s employees occasionally perform “skip trace” operations to locate debtors who have disappeared, and this procedure requires the use of telephones and occasionally the mail. On some occasions when a debtor has left the state, defendant makes use of a skip trace organization in another state and it does use attorneys in other states to collect debts from persons who have left the state without paying. However, defendant’s employees do not leave the state when they attempt to locate debtors who have disappeared.

The question presented is whether plaintiff was engaged in commerce or whether she was engaged in the production of goods for commerce so as to bring her within the provisions of the act. The test established by the United States Supreme Court to determine whether an employee is “engaged in commerce” under the act has been set forth graphically in McLeod v. Threlkeld, as follows:

“The test under this present act, to determine whether an employee is engaged in commerce, is not whether the employee’s activities affect or indirectly relate to interstate commerce but whether they are actually in or so closely related to the movement of the commerce as to be a part of it. Employee activities outside of this movement, so far as they are covered by wage-hour regulation, are governed by the other phrase, ‘production of goods for commerce.’ . . . it is the work of the employee which is decisive.”

As defendant’s business is conducted on an intrastate basis only, its contacts with interstate commerce are at best tangential, and for the purposes of the Fair Labor Standards Act not only are its employees not “engaged in commerce”, but it can hardly be said the business of defendant “affects” interstate commerce to any substantial degree. With particular reference to plaintiff’s duties, her strictly in-office activities were totally intrastate in nature, with the exception of the preparation of envelopes with collection notices for mailing within the state of Louisiana and the placing of occasional long distance telephone calls in connection with company business. Even if defendant were engaged in interstate commerce, the activities performed by plaintiff as her employment duties would not be sufficient to place her within the ambit of the act.

In addition, it is clear plaintiff was not engaged in the preparation of goods for interstate commerce. It has been held employees of a lender who prepare and transmit across state lines documents which are considered property in themselves, such as promissory notes, bills of exchange, bonds and similar instruments are engaged in preparation of goods for interstate commerce. On the other hand, employees who merely prepare and send in interstate commerce items of a non-property nature, such as reports and memoranda, are not in interstate commerce. Even if some of the notices placed in envelopes by plaintiff did cross state lines, such activity would not constitute preparation of goods for interstate commerce and would not place plaintiff under the provision of the act.

Finally, plaintiff makes oblique reference to an exception to the general rule which provides that when some of the employer’s operations are considered interstate commerce, all employees in the enterprise are considered covered by the act. Plaintiff’s reference is to the so-called “enterprise concept”, enacted by Congress for the purpose of extending the coverage of the act to employees in the finance industry. However, the very nature of defendant’s business in the present case precludes any consideration of this concept. Defendant has no out of state branches, conducts no out of state “sales”, and is not connected except in some occasional and inconsequential ways with interstate commerce. Consequently, it is not an enterprise engaged in interstate commerce and plaintiff, its employee, is not covered by the act.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . 29 U.S.C.A. § 201, et seq.

      . Defendant also filed an exception of prescription, which the trial court referred to the merits and thereafter did not rule thereon. As defendant has neither briefed nor argued prescription, we consider that issue abandoned. Steele v. Ruiz, La.App., 202 So.2d 376 and cases cited therein.

        . Freudenberg v. Harvey, D.C.Pa.1973, 364 F.Supp. 1087; Schimerowski v. Iowa Beef Packers, Inc., Iowa 1972, 196 N.W.2d 551; McClanahan v. Mathews, D.C.Ky.1968, 292 F.Supp. 737; Carter v. Hill & Hill Truck Line, Inc., D.C.Tex.1966, 259 F.Supp. 429; Kerness v. Austin Burke, Inc., Fla.App. 1966, 188 So.2d 879; Goettel v. Glenn Berry Mfrs., Inc., D.C. Okl.1964, 236 F.Supp. 884.

      .29 U.S.C.A. § 207(a)(1).

      . 29 U.S.C.A. § 203(b); Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656; Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460; Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638.

      . Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607; Overstreet v. North Shore Corp., supra, note 5; Walling v. Jacksonville Paper Co., supra, note 5; Kirschbaum Co. v. Walling, supra, note 5. An exception to the general rule will be discussed later in this opinion.

      . 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538.

      . In Mitchell v. Household Finance Corp., 208 F.2d 667 (3rd Cir. 1953), defendant finance company and subsidiaries conducted business in 490 offices located in 28 states and 8 Canadian provinces. The court concluded, nevertheless, employees who kept and mailed reports at regular intervals to its Chicago office, corresponded on company matters with the Chicago office, and sent checks and drafts back and forth approximately twice a month did not perform services in interstate commerce.

      . Bozant v. Bank of New York, 156 F.2d 787 (2nd Cir. 1946).

      . Mitchell v. Household Finance Corp., supra note 8; Kelly v. Ford, Bacon & Davis, 162 F.2d 555 (3rd Cir. 1947); Bozant v. Bank of New York, supra, note 9.

      . Mitchell v. Household Finance Corp., supra note 8.

      . Shultz v. Deane-Hill Country Club, Inc., 310 F.Supp. 272 (E.D.Tenn.1969).

      . 29 U.S.C.A. § 203(r).

      . See Beneficial Finance Company of Wisconsin v. Wirtz, 346 F.2d 340 (7th Cir. 1965); Wirtz v. Welfare Finance Corporation, 263 F.Supp. 229 (N.D.W.Va.1967).