author: REDMANN, Judge. GULOTTA, Judge,

text:
    Wellington S. BEAULIEU v. DEPARTMENT OF POLICE.
    No. 9602.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Feb. 15, 1979.

      William F. Wessel, New Orleans, for plaintiff.
    Michael A. Starks, New Orleans, for defendant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   REDMANN, Judge.

Officer Wellington Beaulieu was dismissed from the New Orleans Police Department by letter stating as cause that he fired at least one warning shot with his service revolver (expressly prohibited “for any purpose”) while chasing a suspect, “struck the suspect with the tire tool [an x-shaped lug wrench that the suspect had been carrying] without provocation or justification,” did not report discharging his revolver and, upon his revolver being inspected, falsely reported (after telephoning the police laboratory to find out whether they could tell the gun had been fired) that he had fired it at a St. Bernard parish dump or firing range the previous day.

On his appeal to the Civil Service Commission the dismissal was upheld although the Commission’s opinion declares “We do not find that the charge of brutality was proved.”

Appellant complains that by finding the brutality charge not supported, while sustaining the dismissal, the Commission has upheld his appeal from dismissal for brutality while the Commission itself dismisses him for firing his gun and lying about it. Alternatively, appellant asks a remand to the Commission “to take evidence regarding the disposition of this case which would have been made had there been no finding [by the superintendent?] of brutality made against the appellant.”

The “charge of brutality” is apparently the Commission’s characterization, because it is not found in the superintendent’s letter of discharge. The Commission’s opinion, unlike the letter (“struck the suspect”), recites “appellant is charged with brutality in that it is alleged that he beat the suspect about the head and back with a tire iron.” The letter makes no charge of brutality.

The Commission’s conclusion that “brutality” was not proven does not necessarily constitute a finding that Officer Beaulieu did not, not even once, “strike” the suspect. But if the Commission had found that Beaulieu did not once strike the suspect, that finding would not justify setting aside the dismissal (if the other charges sufficed as cause for dismissal, La.Const. art. 10 § 8(A)). Appellant overemphasizes the striking of the suspect — -in fact a minor element in the letter of dismissal — by characterizing it as a charge of brutality, a “beating” rather than a striking. Had the superintendent charged beating-brutality, the questions appellant argues would trouble us. But we find that the facts do not raise those questions.

Affirmed.

GULOTTA, J., dissenting.

GULOTTA, Judge,

dissenting.

I dissent. Because of the Commissioner’s finding of failure of proof of “brutality”, this matter should be remanded to the Superintendent for re-evaluation of the harshness (dismissal) of the discipline.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Alice NEVELS v. John T. HENDRIX.
    No. 9742.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.

      Marvin C. Grodsky, New Orleans, for plaintiff-appellant.
    Robert J. Neal, New Orleans, for defendant-appellee.

      Before LEMMON, STOULIG and SCHOTT, JJ.
   LEMMON, Judge.

This matter arises from an automobile accident between plaintiff and John Hendrix. The principal issue is whether Hendrix was afforded liability coverage under a family automobile policy issued by Maryland Casualty Company (the sole remaining defendant), when he was driving a car owned by his employer and furnished to him for use only during hours of employment, and when the accident occurred after working hours.

The documentary evidence stipulated by counsel established: Hendrix was employed by the U. S. Department of Housing and Urban Development, which furnished him with the vehicle he was driving at the time of the accident. The Department, by written memorandum, authorized him to use the car for official purposes only, but additionally authorized him to drive the car before and after work between his place of residence and his place of employment, since starting and ending his official travel at his residence was deemed to result in advantage to the Department. Hendrix’s regular working hours were 8:00 a. m. to 4:30 p. m., and the accident occurred at 8:00 p. m. Although Hendrix stated in answers to interrogatories that the accident occurred while he was returning home from a work assignment, the employer’s records contradicted this, and an investigative report further indicated the falsity of the answer.

I

Under the terms of Hendrix’s policy Maryland undertook:

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile . . ..”

The policy further defined non-owned automobile as follows:

“ ‘non-owned automobile’ means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile”.

A family automobile liability policy generally covers an insured for liability arising out of the use of any automobile, but some uses are excluded when the nature of the use generates substantial risks not contemplated by this type of policy. The purpose of the insuring agreement in this policy, as to vehicles not owned by the insured, is to provide coverage during the occasional or casual use of such vehicles, but to exclude coverage of the frequent, habitual or principal use of such vehicles which would substantially increase the risks of the insurer beyond those contemplated when the parties entered into the insurance contract.

The “furnished for regular use” exclusion generally comes into play in intrafamily relationships or in employment relationships. The basic reasoning underlying the “furnished for regular use” exclusion in employment situations is that the family automobile policy is not designed to cover an employer’s vehicle regularly used by the employee for employment purposes (since the employer should cover these risks) or an employer’s vehicle regularly used by the employee for personal purposes (since if the employer does not cover these risks, the employee should do so at an additional premium because of the additional exposure). This type of policy therefore excludes vehicles which fall into these categories.

The vehicle in the present case, however, did not fit into either category, when considered as to its use at the time of the accident which gave rise to Hendrix’s liability. At the pertinent time the vehicle was not furnished for Hendrix’s use at all, and indeed his use at that time was expressly prohibited. And since (to the extent this record shows) Hendrix had never before used the vehicle after working hours or for personal purposes, such use placed the vehicle more into the category of a borrowed or misappropriated vehicle in an isolated or casual use.

In our view the determination of the “furnished for regular use” exclusion should be based as much on the purpose for which the automobile is furnished as on the mathematical total of the amount of time the automobile is used by the insured. Under this reasoning the use at the time of the accident is a significant consideration.

In the present case the vehicle was not furnished for Hendrix’s regular use for personal purposes. Nor was it furnished to him at all insofar as the trip was concerned which gave rise to the liability at issue in this litigation. Indeed, if the vehicle at the time of the accident was truly one furnished for his regular use, Hendrix would not have needed special permission to use it at the time. We therefore view the particular use at the time of the accident as an irregular use, both in relation to the purpose for which the employer furnished the vehicle and the purpose for which the employee habitually, principally and regularly used the vehicle.

This reasoning also accords with the public policy of the state that liability insurance is not issued primarily for the protection of the insured, but for the protection of the public. Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d 351 (1942); Webb v. Zurich Ins. Co., 251 La. 558, 205 So.2d 398 (1967). Here, Hendrix’s use at the time of the accident was a personal use for which he ordinarily would have used his own car (which was covered by the policy), and the fact that he used instead a non-owned vehicle which usually was stored for the evening after working hours should not redound to the detriment of the tort, victim in the interpretation of the exclusion in the liability policy.

Finally, where an insurance policy provision is susceptible of two reasonable interpretations, the construction most favorable to the insured must be accepted.

We conclude that the “furnished for regular use” exclusion is not applicable to an isolated or casual personal use by the named insured when the vehicle being used at the time of the accident was regularly furnished by the named insured’s employer exclusively for business purposes. See also Schoenknect v. Prairie State Farmers Ins. Assoc., 27 Ill.App.2d 83, 169 N.E.2d 148 (1960); 86 A.L.R.2d 937, § 7 (1962); 13 Couch, Insurance § 45:1062, 1063 (1965).

II

In the December 13, 1974 accident plaintiff injured her back, neck arid right leg and received emergency room treatment. Five days later she consulted a physician, who found muscular tenderness, spasm and limitation of motion and diagnosed moderately severe cervical and lumbar strains. He prescribed heat, physiotherapy, medication and bed rest. Her neck pain subsided rapidly, but her back injury required treatment through March 12, 1975, at which time she was asymptomatic and was discharged. The medical bill was $286.00. She also sustained a property loss of $684.18.

The record supports an award of $3,500.00, plus the special damages of $960.18.

III

Plaintiff’s original suit against Hendrix, Maryland and the United States was removed to federal court. Plaintiff then compromised the claims against Hendrix and the United States, with each paying $1,500.00. The matter was then transferred back to state court.

Citing Harvey v. Travelers Ins. Co., 163 So.2d 915 (La.App.3rd Cir. 1964), Maryland argues that Hendrix and the United States were both solidarily co-obligors and that plaintiff’s recovery should be reduced because of the compromise with the solidary co-obligors.

Maryland did not prove the United States was solidarily liable and is not entitled to any consideration on account of the payment by that defendant.

However, Maryland and Hendrix are debtors in solido, inasmuch as they are both obliged to the same thing so that each may be compelled for the whole. C.C. art. 2091. Payment by one exonerates the other toward the creditor. Accordingly, Hendrix’s payment of $1,500.00 exonerates Maryland to that extent, and the judgment must be reduced by $1)500.00. Porter v. State Farm Mutual Auto. Ins. Co., 342 So.2d 1265 (La.App.4th Cir. 1977).

Accordingly, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered in favor of plaintiff and against defendant in the amount of $2,960.18, with judicial interest from the date of judicial demand until paid. All costs in both courts are assessed against defendant.

REVERSED AND RENDERED.

      . In the case of an employer-employee relationship there are three principal situation possibilities: (1) the employer furnishes an automobile (either a specific vehicle or a motor pool from which a non-designated vehicle is regularly available) for the employee’s unlimited and unrestricted use; (2) the employer furnishes an automobile for the employee’s limited use (usually restricted to business purposes), and the accident occurs while the employee is in the scope of that limited use; or (3) the employer furnishes an automobile for the employee’s limited use, and the accident occurs while the employee is outside the scope of that limited use.
      In the first two situations the “furnished for regular use” exception clearly applies. The third situation, presented by this case, offers a more difficult question for consideration.

      . Thus, in Cotton States Mut. Ins. Co. v. Falls, 114 Ga.App. 812, 152 S.E.2d 811 (1966), the exclusion was applied when the vehicle was left by the insured’s stepson, without intent to claim it for some months and without restriction as to the insured’s use, and was used by the insured as he pleased, although he also had another automobile which he used with equal frequency.

      . Under similar factual circumstances (except that the employee had the employer’s special permission for the personal mission during which the accident occurred) the court in Pacific Automobile Ins. Co. v. Lewis, 56 Cal.App.2d 597, 132 P.2d 846 (1943) stated that “whatever may be said of other times and places, this car was not furnished for his regular use, insofar as this particular trip [was] concerned”. And in Safeco Ins. Co. v. Thomas, 244 Cal.App.2d 204, 52 Cal.Rptr. 910 (1966) the “regular use” exception was held inapplicable where the employee did not use the car for social purposes, and his use to go for a drink after checking into a motel on a business trip was deemed to be isolated, incidental or casual personal use. The court stated:
      “Whether an automobile is furnished by another to an insured for his regular use may reasonably depend upon the time, place and purpose for which it is to be used. One furnished for all purposes and at all times and places would clearly be for his regular use. One furnished at all times but strictly for business purposes alone could hardly be said to have been furnished for his regular use at a time and place when it was being used for personal purposes ”.

      .In Farm Bureau Mut. Auto Ins. Co. v. Marr, 128 F.Supp. 67 (D.N.J.1955) the court observed that a vehicle “furnished at all times but strictly for business purposes alone could hardly be said to have been furnished for his regular use at a time and place when it was being used for personal purposes”.

      . There is no basis to reduce the judgment by one-half as was done in Harvey v. Travelers Ins. Co., above, because this defendant was not deprived by the compromise of the right to contribution from Hendrix. No such right ever existed because of the contract of insurance.


author: CULPEPPER, Judge.

text:
    Margie RIMMER v. Sammie E. JOWERS.
    No. 6759.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writ Refused March 23, 1979.

      Gravel, Roy & Burnes, Dan E. Melichar, Alexandria, for plaintiff-appellant.
    Ralph W. Kennedy, Jr., Alexandria, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

This is a petitory action. The plaintiff, Margie Rimmer, filed this suit on December 16, 1975 claiming ownership by record title of 2.28 acres of which she recognizes that the defendant, Sammie E. Jowers, is in possession. Defendant filed an answer denying plaintiff’s record title and a recon-ventional demand alleging ownership by purchase from his father in 1947, or, in the alternative, ownership by the acquisitive prescriptions of 10 and 30 years. The trial judge held plaintiff had not proved record title, good against the world, as required by the plaintiff in a petitory action against a defendant in possession. Judgment was rendered in favor of defendant, dismissing plaintiff’s suit. The judgment does not rule on defendant’s reconventional demand to be recognized as owner. Plaintiff appeals. The defendant has neither appealed nor answered the appeal.

The issues on appeal are: (1) Did plaintiff prove the required record title “good against the world”? (2) Did defendant prove ownership by the acquisitive prescriptions of either 10 or 30 years?

The general facts are that by a deed dated August 8, 1975, the plaintiff purchased from her father, Mac Duffy Hodges, 28 acres of land, described in two tracts, Tract “A” containing 2 acres, and Tract “B” containing 26 acres, according to the plat of a survey by Charles C. Wise, of date, July 24, 1975. The survey by Mr. Wise shows a “Trespass No. 2” on 2.28 acres located in the W/2 of the NE/4 of the NW/4, Section 22, T5N, R4W. The defendant, Sammie Jow-ers, lives in a home which he built on this 2.28 acres after he allegedly purchased it from his father in 1947. On the basis of the “Trespass” on her property by defendant, as shown by Wise’s survey, plaintiff filed the present petitory action claiming ownership by record title of the 2.28 acres shown as “Trespass ¶ 2”. The relevant portion of the plat of Wise’s survey is reproduced below:

The property of which plaintiff claims ownership by record title is the 2.28 acres shown as “Trespass ¶ 2” on the above plat. It fronts 318.8 feet on Louisiana Highway ¶ 8, the road shown on the plat. The 1.0-acre square shown as “Out” is, according to Wise’s survey, in the extreme southeast corner of the W/2 of the NE/4 of the NW/4 of Section 22, and is not part of the property claimed by plaintiff. The garden and dwellings noted on “Trespass ¶ 2” are those of the defendant, Sammie E. Jowers. As stated above, plaintiff admits in her petition that the defendant Jowers is in possession of the 2.28 acres which plaintiff claims. “Tract “A” containing 2 acres, is the tract fronting 200 feet on Highway 8. The tract fronting 167 feet on the highway, as well as the 2.28 trespass, are parts of Tract “B”, the remainder of the 26 acres being in the quarter section to the south.

We will first address the issue of whether plaintiff has sustained her burden of proving record title “good against the world”, within the meaning of Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974). In essence, that case holds that as against a defendant in possession, the plaintiff in a petitory action has the burden of proving record title by an unbroken chain from the United States Government down to the plaintiff, or, in the absence of such record title, proof of ownership by acquisitive prescription.

After carefully reviewing the record, we find that the plaintiff has proved record title “good against the world”. She has filed in the record a certified copy of each document in her chain of title beginning with the patent from the United States Government to Francis D. Knight, dated October 31, 1893, conveying the NW/4 of Section 22, T5N, R4W. The last conveyance in the chain of title is from Mac Duffy Hodges to the plaintiff, Margie Hodges Rimmer, dated August 8, 1975, conveying two tracts of land, Tract “A” containing 2 acres, as shown by the above portion of the Wise survey, and Tract “B” containing 26 acres including the 2.28 acres shown as “Trespass ¶ 2” on the Wise survey.

The defect in plaintiff’s chain of title urged by the defendant and found by the trial judge arises out of the following transactions. By a deed dated August 28, 1928, William M. Glass and Eugene Glass conveyed to John N. Jowers one acre “in the southeast corner of the west portion of the NE/4 of the NW/4 of said Section 22.” Then in a deed dated July 17,1930, Eugene W. Glass sold to William M. Glass a 15.11 acre tract situated in the southeast comer of the W/2 of the NE/4 of the NW/4 of said Section 22 “less one acre of land in the southeast corner of said tract sold to J. N. Jowers.” Then by deed dated June 4, 1931, William M. Glass sold to Mac Duffy Hodges a tract described as “That part of the W/2 of the NE/4 of the NW/4, Section 22, T5N, R4W, Louisiana Meridian, Southwestern Land District, Rapides Parish, Louisiana, lying South of the Alexandria-Leesville State Highway as presently located, less one acre in a square shape in the southeast corner of the W/2 of NE/4 of NW/4;”. As stated above, by deed dated August 8,1975, Mac Duffy Hodges sold to his daughter, Margie Hodges Rimmer, all of the property which he owned in the W/2 of the NE/4 of the NW/4 of Section 22, including the 2.28 acres shown as “Trespass ¶2” on Wise’s survey set out above. It is noted that in Wise’s survey the one acre in a square in the southeast comer of the W/2 of the NE/4 of the NW/4 of Section 22 is not included in the property sold to the plaintiff, and she is not claiming this one acre.

The alleged basis for the defect in plaintiff’s chain of title arises out of a tax sale dated October 21,1937, whereby the sheriff sold, for taxes assessed in the name of William M. Glass for the year 1936, property described in the tax deed as “One acre in southeast corner of W/2 of NE/4 of NW/4, Section 22, T5N, R4W”. The purchasers at the tax sale were Edward L. Jowers and John Jowers. Then by deed dated May 3, 1947, Edward L. Jowers and John N. Jow-ers sold to the defendant, Sammie E. Jow-ers, property described as “One acre square in the southeast corner of the W/2 of the NE/4 of NW/4 of Section 22, T5N, R4W of Rapides Parish, Louisiana; and being the same property acquired by these vendors by tax sale from William M. Glass.”

From a mere reading of the descriptions in the 1937 tax sale and in the 1947 sale to Sammie Jowers, it is apparent that the property to which the defendant, Sammie E. Jowers, has record title is one square acre in the southeast corner of the W/2 of the NE/4 of the NW/4 of said Section 22. This is the same one acre excepted from the sale by which plaintiff, Margie Rimmer, acquired her property from her father, Mac Duffy Hodges. Plaintiff makes no claim to this one acre in the southeast corner.

Nevertheless, defendant contends, and the trial judge held, that the one square acre in the southeast corner, excepted from the sale from Eugene Glass to William Glass in 1930, from the sale from William Glass to Mac Duffy Hodges in 1931, and from the sale from Mac Duffy Hodges to Margie Rimmer in 1975, is not the same one acre as that acquired by Edward L. Jowers and John N. Jowers by tax sale in 1937 and conveyed by them to Sammie Jowers in 1947. The trial judge reasoned that the survey by Mr. Wise cannot be accepted because Section 22 contains an excess of acreage, which results in discrepancies in surveys in the area. The trial judge gave weight to a survey by C. L. Besson, Jr., of date May 6,1976, which is based on a previous survey by H. J. Daigre made in 1926. The Besson survey does not attempt to allocate the excess acreage in Section 22 to the quarter sections, nor to fix the line between the W/2 and the E/2 of the NE/4 of the NW/4. Instead, the Besson survey merely locates two acres of land originally purchased by defendant’s father, John N. Jow-ers, from Walker Knight on October 1, 1921, described as two acres in the NE/4 of the NW/4 of said Section 22. After locating the corners of this two acres established by Daigre in 1926, Mr. Besson then simply located two one-acre tracts on the west, according to instructions given to him by the defendant Jowers. The pertinent portion of Besson’s plat is reproduced below:

We cannot agree with the trial judge that Mr. Wise’s survey must be disregarded. Wise’s survey is the only one in evidence which starts from a quarter section corner of Section 22. Besson’s survey, based on Daigre’s 1926 survey, attempts only to make the property lines conform with the deeds to the properties. Furthermore, Wise’s survey and Besson’s survey conform, insofar as plaintiff’s record title is concerned. On Besson’s plat, the two-acre tract is the two acres located in the NE/4 of the NW/4 of Section 22 acquired by defendant’s father, John N. Jowers, in 1921. And the southernmost of the one acre tracts is the one acre acquired by John N. Jowers from Glass in 1928, described as being in the southeast comer of the W/2 of the NE/4 of the NW/4 of said Section 22. All of the witnesses testified the one acre tract purchased by John Jowers in 1928, adjoined on the west the two acres he had purchased in 1921, and both the Wise and Besson plats show the tracts adjoining in this manner. Thus, the two plats conform almost exactly.

We fail to see how an argument can be made that discrepancies in the surveys show that two different tracts of one acre were acquired by Edward L. Jowers and John N. Jowers, and then later conveyed to the defendant, Sammie Jowers, in 1947. Edward L. Jowers and John N. Jowers owned only one tract of one-acre, and it was located in the southeast corner of the W/2 of the NE/4 of the NW/4 of said Section 22. All of the deeds, the survey by Mr. Wise, and even the survey by Mr. Besson confirm this.

The descriptions in the documents in plaintiff’s chain of title show she has a perfect record title to the 2.28 acres in dispute. The survey by Wise confirms the location of the 2.28 acres on the ground, with reference to what he says is the recognized southwest corner of the W/2 of the NE/4 of the NW/4 of Section 22. Besson’s plat does not contradict this. Neither the defendant nor the trial judge have pointed to any other defect in plaintiff’s record title, than that discussed above. We conclude that the plaintiff, Margie Rimmer, has a record title “good against the world” to the 2.28 acres she claims in these proceedings.

We will next address the question of whether the defendant has proved ownership of the 2.28 acres by the acquisitive prescription of either 10 or 30 years. As to the acquisitive prescription of 10 years, we find, as set out above, that the defendant has no record title to any portion of the 2.28 acres. Both the 1937 tax sale to Edward L. Jowers and John J. Jowers, and the 1948 deed from these two to the defendant, Sammie Jowers, describe one acre in the southeast corner of the W/2 of the NE/4 of the NW/4 of said Section 22. Defendant has no record title to the one-acre tract shown on Besson’s plat as fronting on Highway ¶ 8. Therefore, defendant cannot claim ownership by 10 years acquisitive prescription, a necessary requirement of which is title. LSA-C.C. Article 3479.

As to defendant’s claim of ownership by the acquisitive prescription of 30 years, the evidence is in great conflict. The defendant and several of his relatives and neighbors testified by referring to a sketch which was drawn on a blackboard used during the trial. At the conclusion of the trial, it was stipulated by counsel that a sketch of the drawing on the blackboard would be filed in the record, but this was not done. Nevertheless, counsel state in their briefs that the sketch which was on the blackboard is similar to the reproduced portion of the Besson plat. We will use Besson’s plat in discussing the testimony of the witnesses as to 30 years acquisitive prescription.

Defendant’s witnesses testified that “Lot 1” (see Besson’s plat) is the two acres acquired by defendant’s father, John N. Jow-ers, in 1921, and on which Mr. Jowers built his home. Lot 2 is the adjoining one-acre lot purchased by John N. Jowers from Eugene Glass in 1928. John Jowers built a barn on Lot 2. These witnesses testified further that after John N. Jowers bought Lot 3 at a tax sale in 1937, he built a fence all around the west side, the north side next to the road and the east side, back to the fence on the two-acre tract. They said that Mr. John Jowers used Lot 3 as a pasture for his calves and his cows. The testimony is that John Jowers milked six or eight cows every day and that when the cows would come in from the open range to the barn, located on Lot 2, he would separate the calves and put them in the fenced pasture on Lot 3.

Defendant and his witnesses stated that after defendant bought Lot 3 from his father in 1947, he built a house on it and repaired or rebuilt in the same location the fences which had been erected by his father around Lot 3 in 1938, and that these fences are in the same location today. If all of this testimony is true, then the defendant’s possession, tacked to that of his father, which began in 1938, is sufficient for 30 years acquisitive prescription under LSA-C.C. Article 3499.

However, the testimony of plaintiff and her witnesses is in direct conflict with that of the defendant and his witnesses. Plaintiff, her sister, her aunt and her father testified that they lived on the property adjoining the property of John N. Jowers on the west. They testified positively that there were no fences around Lot 3 until the defendant, Sammie Jowers, built his house on Lot 3 in 1947. They stated that before 1947 the area between Mr. John Jowers’ barn and the highway was open, and that people who lived in the community walked freely across it on a trail, that as small children they played ball in an open area between the barn and the road, and that cattle from the open range roamed freely there. Plaintiff’s witnesses say that after Sammie Jowers built his home on Lot 3 near the road in 1947, he built a fence around the house and also a fence around his garden, but that he moved the fence around his garden several times. This moving of defendant’s garden fence farther to the west on one occasion was the subject of some dispute with plaintiff’s father, Mac Duffy Hodges.

We note also that the fence shown on Wise’s plat on the west side of the 2.28 acres in dispute is not along the west side of the one-square acre in the southeast corner of the W/2 of the NE/4 of the NW/4 of said Section 22, which is the one-acre originally purchased by Mr. John N. Jowers in 1928 and on which Mr. Jowers built his barn. No fences are shown on Besson’s plat. This raises questions as to the location of any fences built by defendant or his father, and as to how long any such fences have been in existence.

In view of the great conflict in the evidence in the record on the factual issues of the possession and the enclosures relative to 30 years acquisitive prescription, we conclude this case should be remanded to the district court for a final decision. The trial judge is in a much better position than we to decide these factual matters. Furthermore we will leave it to the trial judge’s discretion to either decide the case on the basis of the evidence which is already in the record or to allow the reopening of the case for additional testimony and evidence on the factual issues relating to acquisitive prescription of 30 years.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that this case be remanded to the district court with instructions that plaintiff’s record title, “good against the world”, be recognized as to the 2.28 acres, but that defendant’s defense and his reconventional demand, based on the acquisitive prescription of 30 years, be decided by the trial judge on the basis of the evidence which is already in the record or on the basis of this, together with any additional evidence which the trial judge, in his discretion, deems necessary. All costs of this appeal are assessed against the defendant-appellee. The assessment of costs in the trial court must await a final judgment there.

REVERSED AND REMANDED.


author: BLANCHE, Judge. COVINGTON, Judge,

text:
    STATE of Louisiana, DIVISION OF ADMINISTRATION, COMPENSATION, PAYMENT AND CONTROL v. STATE of Louisiana, DEPARTMENT OF LABOR, OFFICE OF EMPLOYMENT OF SECURITY.
    No. 12380.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Writ Refused Feb. 23, 1979.

      Tommy D. Teague, Baton Rouge, of counsel, for plaintiff-appellant, State of Louisiana, Division of Administration, Compensation, Payment and Control.
    James A. McGraw, Baton Rouge, of counsel, for defendant-appellee, State of Louisiana, Dept, of Labor, Office of Employment Security.
    Before LANDRY, SARTAIN, ELLIS, BLANCHE, COVINGTON, LOTTINGER, CHIASSON, EDWARDS and PONDER, JJ.
   BLANCHE, Judge.

This action was brought by the Division of Administration, Compensation, Payment and Control of the State of Louisiana, seeking to terminate the practice by the Louisiana Department of Labor, Office of Employment Security, of paying mandatorily retired state employees unemployment compensation benefits. From a judgment denying the claim for injunctive and declaratory relief, plaintiff prosecuted this appeal.

Appellant claims that the defendant is compelled to reduce the amount of unemployment compensation paid to retired state employees by the amount they receive in pension benefits since LSA-R.S. 23:1601(7)(c) and (d) provide for a disqualification or reduction for any week during which the claimant receives remuneration in the form of payment under a pension plan toward the cost of which the employer has contributed. LSA-R.S. 23:1601(7)(c) and (d) provide:

“An individual shall be disqualified for benefits:
* * * * * *
“(7) For any week with respect to which he is receiving or has received remuneration in the form of:
# * * * * *
“(c) payments under any retirement or pension plan, system or policy provided by a private employer or the state of Louisiana and any of its instrumentalities or political subdivisions, and towards the cost of which a base period employer is contributing or has contributed on behalf of the individual.
Amended by Acts 1968, No. 655, § 1; Acts 1976, No. 366, § 1.
“(d) If the amount payable under (a), (b), or (c) above with respect to any week is less than the benefits which would otherwise be due under this Chapter, he shall be entitled to receive for such benefit period, if otherwise eligible, benefits reduced by the amount of such remuneration. If any such benefits, payable under this Sub-section, after being reduced by the amount of such remuneration, are not an even multiple of one dollar, they shall be adjusted to the next higher multiple of one dollar.”

All parties concede that a person employed by the state who reaches the mandatory retirement age and meets the other statutory requisites is entitled to receive a pension to which the state has contributed. The relevant details of this plan are that during the employment years the state sets aside funds in a reserve account on behalf of the employee (R.S. 42:653) which are later combined with the employee’s contributions (R.S. 42:654) into an account out of which the retirement benefits are paid. Upon retirement, the employee selects the method of receiving his benefits.

Defendant-appellee, the Office of Employment Security (hereinafter referred to as “Employment Security”) has taken the position that R.S. 23:1601(7)(c) does not become operative until an employee has withdrawn from the retirement or pension plan the total amount of his contributions. Employment Security reasons that this result is compelled by the fact that until the employee has withdrawn all of his contributions to the plan, the employer has not actually contributed anything toward the retirement plan as defined in R.S. 23:1601(7)(c). Ap-pellee also urges that this interpretation is mandated by our earlier holding in Hale v. Gerace, 324 So.2d 558 (La.App.lst Cir. 1975), writs denied, 326 So.2d 344 (La.1976).

Hale involved an unemployment compensation applicant who had been forcibly retired from Dresser Industries. During his employment, he contributed $6,100.32 to the Dresser pension plan. Upon retirement, he selected a lifetime annuity of $305.44 per month. Under the plan, the first three years of benefits were to be excluded from income taxes. This Court affirmed a finding by the district court that the Board of Review had erred in reducing Hale’s unemployment benefits by the amount he was receiving from the Dresser pension plan.

Based upon what this Court viewed as the sound public policy of the law designed to provide some measure of economic security to unemployed workers and the juris-prudentially established rule that the provisions of the Unemployment Compensation Act were to be construed liberally in favor of the unemployed worker, we held:

“[W]e think the more reasonable interpretation of the private pension plan remuneration disqualification is that this disqualification takes effect only after the claimant has been reimbursed for the money which he has put in the pension plan. In the instant case, the employer did not contribute any part of the money the claimant is presently receiving from the plan; the money that he is now receiving is his own money. Until such time as he has completely withdrawn his own funds set aside in the pension plan, the employer cannot be said to have contributed any money to the remuneration received by him. In other words, until the claimant has been repaid all of the money which he himself contributed to the pension plan, it cannot be said that he is receiving . . remuneration in the form . . . payments under any private retirement or pension plan, system or policy toward the cost of which a base period employer is contributing or has contributed on behalf of the individual.’ (Hale v. Gerace, 324 So.2d at 560-561 — Emphasis supplied)

The only basis for' the Court’s conclusion in Hale that the employee was only receiving the return of his own contributions the first three years of the plan was that for income tax purposes, the first three years’ payments were considered as return of capital. However, how a fund is treated for accounting or tax purposes should not be dispositive of whether the employer has contributed, or is contributing, to the cost of the plan for the purpose of R.S. 23:1601(7)(c). In the present case, retired employees are receiving pension payments, the cost of which the state made contributions toward during the employment years of those individuals. This analysis leads us to conclude that Hale is indistinguishable from the case at bar and therefore calls in question the correctness of that decision.

We believe Hale writes into R.S. 23:1601(7)(c) an additional provision not included by the legislature, i. e., “provided further that the disqualification shall not take effect until claimant has been reimbursed the full amount of the contributions which he has made to the pension plan.” This interpretation of the section is contrary to the clear language of the section and inconsistent with the established policy directives of the Unemployment Compensation Act.

The statutory language is clear and free from ambiguity. A claimant’s unemployment compensation benefit must be reduced by the amount he receives from:

“any retirement or pension plan, system or policy * * * towards the cost of which a base period employer is contributing or has contributed on behalf of the individual.” (Emphasis supplied)

The statute contains no proviso excluding its coverage until the employee has received the full amount of his contributions. All that is required for the disqualification to become effective is that the employee be receiving payments from a retirement plan toward the cost of which an employer either has contributed in the past, or is currently contributing, on behalf of the employee. How the funds are kept for accounting purposes prior to retirement and how the initial payments to the recipient under the plan are reported for Internal Revenue Service purposes are not relevant to the disqualification. The only important criterion is whether the plan is one partially supported by employer contributions.

The Louisiana Civil Code provides the rule of construction applicable in this case.

“When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.” (LSA-C.C. art. 13)

This interpretation is further supported by the policies underlying the Employment Security Act. The Supreme Court in National Gypsum Company v. Administrator, Department of Employment Security, 313 So.2d 230 (La.1975), said:

“ * * * [Unemployment compensation is not paid primarily to reward the employee nor to punish the employer, but rather to protect the stability of the state and of the family, by relieving the family distress and the menace to the public welfare occasioned through unemployment of individual workers.” (313 So.2d at 232)

If an employee were allowed to receive unemployment compensation and payments from an employer-supported pension plan at the same time, the employer would be forced to pay twice for the employee’s retirement. Viewed simply, a retirement or pension plan is actually a negotiated private unemployment compensation agreement. Underlying most plans is the promise by the employer, through his contributions, to provide a stated base income for the employee when the employee becomes unemployable due to old age or forced retirement. Under the Employment Security Act, the employer, in cooperation with the state, and through his contributions, provides economic security to workers who are unemployed merely because there are not enough jobs to go around. Thus, unemployment compensation is an employer-supported pension plan for workers who are fortuitously unemployed. We believe the clear import of the disqualification of R.S. 23:1601(7)(c) is to avoid the unfair economic imposition which would be placed upon an employer by forcing him to pay unemployment compensation for the same employee who is collecting under a retirement plan or pension, the cost of which the employer has contributed, or is contributing on behalf of the employee.

Finally, we believe the above reasoning is supported by the recent case handed down by the Louisiana Supreme Court in Tennessee Gas Pipeline Company v. Administrator, Department of Employment Security of State of Louisiana, 364 So.2d 990 (La.1978). There an employee received a lump sum settlement of his pension in the amount of $55,951.87. The plan was composed of both employee and employer contributions. The employee argued that he should be disqualified from unemployment compensation only for the week in which he received his lump sum settlement. The Supreme Court held that the lump sum settlement represented a prepayment of monthly benefits actuarially estimated to cover the remaining days of his life. Hence, the plaintiff was disqualified for the entire period represented by the lump sum settlement. Important to the case before this Court is the fact that the Supreme Court did not find that the disqualification was inapplicable until the employee had withdrawn the total amount of his own contributions. Thus, the critical element which triggered R.S. 23:1601(7)(e) was that the employer had contributed to the plan on behalf of the claimant by regular payments into a trust account and the employee was receiving benefits under that plan.

As stated above, all parties concede that the State of Louisiana makes regular contributions to a retirement plan on behalf of each employee during the period of their employment. We hold, therefore, that any unemployment benefits paid to a retired state employee must be reduced by the amount of retirement benefits received pursuant to the State Retirement Plan. R.S. 23:1601(7)(c) and (d). Hale v. Gerace is overruled insofar as it stands for the proposition that the above disqualification only applies after an employee has received the full amount of his own contributions.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed and set aside, and judgment is hereby rendered declaring that the practice of the Department of Labor, Office of Employment Security, of paying unemployment compensation to state employees who are receiving benefits under the State Retirement Act until the total amount of the employee’s contributions has been withdrawn is illegal and contrary to LSA-R.S. 23:1601(7)(c) and (d). It is further ordered that this case be remanded to the district court with instructions to issue an injunction directed to the Office of Employment Security preventing and enjoining the Office of Employment Security from paying unemployment compensation benefits to retired state employees without first deducting therefrom the amount of retirement benefits they are receiving. Defendant-appellee is to pay all costs of this appeal.

REVERSED AND REMANDED.

COVINGTON, Judge,

dissenting:

I dissent, adhering to the interpretation of the applicable statutes which was expressed in Hale v. Gerace, 324 So.2d 558 (La.App. 1 Cir. 1975), writ denied, 326 So.2d 344 (La.1976).

      . Since Hale, the legislature amended R.S. 23:1601(7)(c) by Acts 1976 to include the State of Louisiana and any of its instrumentalities or political subdivisions.


author: BEER, Judge.

text:
    Fada K. MYNHIER, divorced wife of Salvatore Munici v. Harry FRISCH, d/b/a Frisch’s Bar.
    No. 9422.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      Laurence D. Rudman, New Orleans, for plaintiff-appellant.
    Sanford Krasnoff, New Orleans, for defendant-appellee.
    Before LEMMON, BOUTALL and BEER, JJ.
   BEER, Judge.

Appellant, Fada Mynhier, a bar patron, filed this suit against Harry Frisch, the bar owner, to recover the value of two diamond rings which she allegedly entrusted to Frisch and which disappeared while in his possession. The value of the missing rings was stipulated to be $1,600.

It is uncontested that on the evening of March 6,1976, Mynhier (who had previously worked for Frisch as a barmaid) had a few beers and cashed a $50 check at Frisch’s Bar. In the course of this, she placed two diamond rings on the bar and asked Frisch to hold the rings for her. Frisch, though reluctant to be involved, placed them in a small envelope, wrote “Fada’s rings” on the outside of the envelope and handed same to the bartender, Cochran, who placed it in the change drawer located in back of the bar. This drawer has an open slot cut into it which was approximately one inch high and four inches wide. The drawer is kept locked; the bartender on duty has the key. Four days later, Mynhier came to pick up her rings and was informed that the rings had disappeared.

The trial court concluded that the rings were deposited by Mynhier and voluntarily accepted by Frisch in a manner contemplated by Civil Code Articles 2932, et seq. and noted, accordingly, that the obligation of the depositary was to exercise the same diligence in preserving the deposit that he would use in preserving his own property.

The trial court further determined that the rings had not been returned and, thus, concluded that the depositary had the burden of proving that he exercised due diligence in the preservation of the rings. In that connection, the trial judge noted: “The evidence supports Mr. Frisch’s reasonable conduct in preserving the rings.”

In our view the record amply supports these findings and conclusions.

Mynhier not only had an opportunity to see the manner in which her rings were placed in safekeeping by Frisch, but, from her previous experience as an employee of the bar, would be presumed to know such a neighborhood tavern is not set up to provide extraordinary safekeeping facilities.

The judgment is affirmed, at appellant’s cost.

AFFIRMED.


author: SCHOTT, Judge.

text:
    GOOD HOPE REFINERIES, INC. v. INTERNATIONAL PETROLEUM TRADING COMPANY et al.
    No. 9443.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      McGlinehey, Stafford, Mintz & Hoffman, Dermot S. McGlinehey and J. Michael Johnson, New Orleans, for defendant-appellant.
    Stone, Pigman, Walther, Wittmann & Hutchinson, John M. Landis, New Orleans, for defendant-appellant Coastal Fuels, Inc.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

This is an appeal by Hamilton Bros. Oil Company, International Petroleum Trading Company, SDAD, LTOA, (hereinafter collectively referred to as IPTCO) and their insurer, American Home Insurance Company, from a summary judgment in favor of Coastal Fuels, Inc. (Coastal), dismissing the third-party demand of appellants against Coastal.

The proceedings were initiated by Good Hope Refineries, Inc. against appellants for damages to its refinery catalytic cracking unit, commonly referred to among the parties as a cat cracker. Good Hope alleged that it purchased a reduced crude oil from IPTCO in September, 1975, for processing in its vacuum unit and cat cracker. Although normal tests were run on the material purchased, immediately after it was introduced into Good Hope’s equipment it caused the damage to the equipment because the material was defective and unsuitable for use as a “cat feed.”

The purchase of the material was negotiated by Good Hope’s president, John Stanley, with IPTCO’s representative, Stan Cor-bitt. IPTCO was a broker trading in petroleum and other fuel products. Having learned from Stanley that Good Hope was in the market for eat feed, Corbitt contacted Coastal’s president, Jim Ethridge, who was supposed to have such material available for sale. IPTCO’s third-party demand is based on Coastal’s alleged sale to IPTCO of a product which was defective, its strict liability to IPTCO and Good Hope as the manufacturer of the material, and its negligence in dealing with IPTCO in the sale of a defective product or one which was not suitable for the purpose for which it was intended.

Depositions of Corbitt, Stanley and Eth-ridge were taken as well as Claude Phelps, a chemist employed by Good Hope. In the course of those depositions a number of issues arose which will necessarily be resolved at the trial of the main demand between Good Hope and IPTCO, but the judgment before us is limited to the third-party demand. In order for the summary judgment to be sustained it must be clear from the pleadings, depositions and affidavits that there is no genuine issue as to material fact, so that Coastal is entitled to a judgment dismissing the third-party demand of appellants as a matter of law. C.C.P. Art. 966. If there is any reasonable doubt as to the presence of any genuine issue of material fact the doubt must be resolved against the mover and summary judgment procedure is not intended to be a substitute for a trial on the merits. Laufer v. Touro Infirmary, 334 So.2d 541 (La.App. 4th Cir. 1976). A discussion of the contents of the depositions indicates that these principles require us to reverse the judgment.

Phelps testified that he tested the material which had been supplied by Coastal after the breakdown of Good Hope’s machinery and found that the material had a high salt content so that when it was heated during the refining process hydrochloric acid developed and caused damage to the metal members of the machinery. The salt content of Coastal’s product was seven times that of the product which Good Hope had stocked for use as cat feed. Before Coastal’s product was purchased Phelps had tested the product for such features as viscosity, gravity, sulphur content and other physical characteristics, but such tests did not include a determination of salt content. He explained that those materials which come from oil refineries are necessarily desalted in the refining process and Good Hope assumed that the product it was buying came from an oil refinery.

Stanley testified that Good Hope was interested in purchasing either virgin reduced crude oil, vacuum eat feed or atmospheric gas oil, and he so informed Corbitt. As far as Stanley was concerned, everyone in the industry knows that these products originate from oil refineries and do not come from chemical plants. He would not purchase material for cat feed which came from a chemical plant nor would he purchase material which was designated as fuel oil or residual fuel oil for cat feed.

Corbitt, whose deposition was taken before Coastal was made a party to these proceedings, was aware that Stanley needed this material for cat feed and after locating Coastal’s product had a sample of the product tested by an independent chemist. This is the same type of test which Phelps described and which specifically did not include a test for salt content. He advised Stanley as to the test results and specifically told Stanley that he did not know the origin of the material. Corbitt testified that he gave this admonition to Stanley because he thought it might be reclaimed motor oils and would have metals present in the substance. They arranged for a sample to be sent to Phelps and thereafter the purchase of 20,000 barrels was agreed upon. In the discussions between Corbitt and Eth-ridge the material was called residual fuel or fuel oil. In the telegram of confirmation of the sale to Stanley, however, Corbitt used the term reduced crude. Corbitt testified that Ethridge was secretive about the source of the material and he, Corbitt, told Ethridge it was to be used as cat feed, but Ethridge did not seem to be technically knowledgeable about the material. After the damage occurred at Good Hope’s refinery and Stanley called Corbitt to tell him that a lawsuit was imminent, when Stanley suggested that they both sue Coastal Cor-bitt told Stanley that he did not feel that Ethridge had misrepresented anything.

Ethridge testified that his products were fuel oil and generally came to him as black oil, residual fuel oil, No. 5 or No. 6 oil, or chlorinated hydrocarbons. Some of his materials emanated from chemical plants but, in speaking to Corbitt, he stated that the material had come from “refineries” which he thought was broad enough to include chemical plants as well as oil refineries. He did not tell Corbitt that they came from chemical plants because he did not wish to disclose his source. He took the position that his sales were strictly by sample, he did not profess to have any great technical knowledge of the business and if the customer was satisfied with the sample he would sell him that product. In getting materials from various sources these would all be pumped into the same tank and blended together. From this testimony, we have inferred that chlorinated hydrocarbons were mixed in various degrees with the oil products Ethridge was buying.

We have detailed the testimony to this extent because this very exercise demonstrates the inappropriateness of the summary judgment procedure for disposition of the third-party demand in this case. Prom all of the depositions it appears that there are issues of material fact to be resolved at a trial. When Ethridge stated that his products originated from refineries this raised the question of the meaning of the word in the industry as limited to oil refineries or extending to chemical plants as well. The question arose as to the presence of a duty on Ethridge’s part to know or to learn if his product was suitable and safe for use as a cat feed or, if having determined that this was the intended use, he was under a duty to disclose that it was not a product originating in an oil refinery. An issue was raised as to the presence of high salt content in Coastal’s product which ultimately caused the damage, and whether the presence of this high salt content in Coastal’s product was such as to constitute a breach of warranty on the part of Coastal or a breach of duty to learn or to warn his customers of the presence of the salt. The issue as to Coastal’s being the manufacturer of the substance enters into this question of the duty it had to IPTCO and Good Hope. We have concluded that there are a number of questions unanswered and a number of issues which can only be resolved by a trial on the merits.

Accordingly, the summary judgment dismissing the third-party demand of IPTCO and its insurer, American Home Insurance Company, is reversed and set aside and the matter is remanded to the district court for further proceedings. The costs of this appeal are taxed against Coastal Fuels, Inc., third-party defendant. Other costs will await the outcome of the case.

REVERSED AND REMANDED.

      . All of the parties were secretive about the origin of their materials because each was afraid that the others might go direct to his supplier to make a purchase, thereby eliminating the middle man.


author: GULOTTA, Judge.

text:
    Paul M. KOSBAB v. B. R. EUBANKS and the First Durham Corporation.
    No. 9606.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      Laborde & Lewis, Pete Lewis, New Orleans, for plaintiff/appellant.
    Baldwin & Haspel, Michael F. Little and William E. Wright, Jr., New Orleans, for defendants/appellees.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal of his claim for employment contract benefits asserted against his former employer, First Durham Corporation and the corporate president and principal stockholder, Dr. B. R. Eubanks. Entitlement is claimed by plaintiff to an unpaid two years annual bonus of $3,000 and return of the sum of $10,000 paid to Eubanks for the purchase of worthless corporate stock.

Defendant’s reconventional demand for losses sustained because of plaintiff’s mismanagement was dismissed by the trial judge. Judgment was rendered, however, in favor of defendant in the sum of $2,700 plus interest and attorney fees on six promissory notes executed by plaintiff.

We affirm that part of the judgment which dismisses plaintiff’s bonus claim; however, we reverse that part of the judgment which dismisses plaintiff’s claim to the $10,000. The award in favor of defendant, in the sum of $2,700 is amended to delete interest and attorneys’ fees and as amended is affirmed. This amount is an offset against the $10,000 award in favor of plaintiff. Defendant’s reconventional demand for mismanagement is dismissed.

On August 3,1971, Kosbab, who was then living in Wisconsin and employed by Swiss Colony Inc., entered into an employment contract with First Durham Corporation (owner of two local Swiss Colony franchises) for the management of the franchises. Eubanks was the president and owner of nine-hundred-ninety-eight shares of the one thousand initially authorized capital stock of the corporation. Subsequent to negotiations between Eubanks and plaintiff’s attorney, agreement was reached for the payment to plaintiff, of an annual salary of $9,500; moving expenses; a company automobile to be paid for by plaintiff through yearly deductions from plaintiff’s salary; hospital coverage; and, an annual bonus of ten percent of net profits, in excess of $5,000.

According to Kosbab, in April 1972, Eu-banks agreed, on behalf of the corporation, to pay plaintiff a guaranteed annual bonus of $3,000. Eubanks denies any agreement was made for a guaranteed bonus. However, undisputed is the fact that Eubanks agreed to assist Kosbab in making a $10,000 bank loan to be used in the purchase of corporate stock by plaintiff.

The $10,000 check, dated April 27, 1972, received by Kosbab for the loan, was endorsed by plaintiff and endorsed also “for deposit only, B. R. Eubanks”, and deposited, presumably into Eubanks’ personal account. Thereafter six $450.00 notes were executed by Kosbab in favor of Eubanks for which Kosbab received $2,700. This amount was to be used to repay the bank loan.

According to Eubanks, plaintiff agreed that no stock certificates would be issued at that time, but issuance would be deferred until the value of the stock could be determined, based on square footage cost of a newly acquired Memphis outlet.

On October 22, 1973, (which followed an October 18th agreement to buy and sell) First Durham Corporation sold the Swiss Colony stores. Although defendants claim that plaintiff had knowledge of the sale, Kosbab insisted that he knew only of the Memphis store sale, which he thought was for the purpose of obtaining cash in order to obtain a new local Lake Forest store. The October 18th agreement to sell warrants to the purchaser that all owners of the corporate stock (Dr. Eubanks, Mrs. Billie Eubanks and Mrs. Ernest L. O’Bannon, shareholders ) expressly consent to the sale. This agreement was not signed by plaintiff. Furthermore, in the October 22, 1973 sale, reference is made to the authorization resolution adopted by the “unanimous written consent of all of the shareholders of said corporation.” Although the act of sale contained a recitation that the resolution is attached, we find no such attachment.

On November 21, 1973, following the October sale, a corporate stock certificate for forty-three shares was sent to plaintiff by Eubanks. Plaintiff testified that since April, 1972 he had frequently inquired about the issuance of the stock; however, Eubanks (although admittedly acknowledged these discussions) claimed that plaintiff had not made any formal demand for the stock certificate.

At the time the stock ownership was transferred, the stock, for all intent and purposes, was worthless. Earl Pedelahore, Jr., a CPA who had examined the corporation books for the period 1971 to 1973, during which time plaintiff managed the outlets, testified that at the time plaintiff received his shares of stock, the company had no operating assets and the stock was worthless paper. He indicated further that the corporation “had no chance to make any future profits because it did not have any operating assets.” On April 27, 1972, however, at the time plaintiff entered into the agreement to purchase the corporation stock from the defendant, and made the $10,000 payment to Eubanks for the stock, the corporation owned assets in three Swiss Colony stores and gross sales had materially increased over 1971 sales. The stock, at that time had some value.

Pedalahore further testified that there had been no entry in the books or records of the corporation concerning the $10,000 plaintiff invested, but that it had appeared only on the tax return, or on the balance sheet prepared in connection with the tax return, and that the $10,000 was listed as a deposit to plaintiff.

John Newsham, a CPA who had prepared the corporation income tax returns, indicated that although plaintiff was listed as a creditor of the corporation, to the extent of $10,000, he was not paid this amount as a creditor at the time the stores were sold because he was regarded as a stockholder of the corporation.

The evidence considered, it is clear that at the time that plaintiff paid for the purchase of the corporate stock, the corporation was a going and viable business and enjoyed substantial growth in gross sales with three franchise outlets. After the sale, the corporation had $14,000 in cash but owed defendant $128,000. The other creditors had been paid. At the time of the delivery of the stock certificate, on December 11,1973 (the stock certificate was dated November 21, 1973), the stock was worthless.

Under the circumstances, we conclude that no consideration was given to plaintiff by the corporation, or Eubanks, for the $10,000 payment. In such instance, an agreement can have no effect and the parties are restored to their respective positions as if no contract had been made. C.C. 1893; C.C.1896; State v. Justice, 160 So.2d 844 (La.App. 4th Cir., 1964), writ refused, 245 La. 1084, 162 So.2d 574 (1964) and cases cited therein. Accordingly, plaintiff is entitled to the return of the $10,000 paid for the worthless stock.

Plaintiff paid to Eubanks $10,000 for the purchase of stock owned by Eubanks and the stock ownership was not transferred (at a time when it had value) to plaintiff. Because the payment was made by plaintiff to Eubanks individually and deposited to his account, and not the corporate account, plaintiff is entitled to recover the payment from Eubanks individually. We are not concerned here with the question of piercing the corporate veil or Eubanks’ immunity from payment of a corporate debt. Under the circumstances we conclude that Eubanks, individually, is liable for the return to plaintiff of the $10,000.

We reject plaintiff’s claim of entitlement to a guaranteed bonus. The August 3,1971 employment contract states that a bonus would be paid “based on the figure of ten percent of net profits after $5,000 was made and retained by the corporation.” According to plaintiff, this part of the employment contract was modified in 1972 to guarantee a $3,000 bonus. Plaintiff points out that a letter dated March 10, 1972, addressed to “To Whom It May Concern”, and signed by Eubanks, as president of the corporation, reads in part: “. In addition to his base salary, he (plaintiff) is on an incentive program and earns a bonus of some $3,000 a year . . Defendant, on the other hand, indicated that no agreement had been made with plaintiff for a guaranteed bonus. He explained that the letter referred to by plaintiff, was written to assist Kosbab in making a loan to purchase a home and the letter, so phrased, was to be used to assist plaintiff in acquiring the loan. Eubanks further testified that the letter was written, with the intent to convey that Kosbab could “earn” a $3,000 bonus but not that he was guaranteed this bonus.

Whether or not the parties agreed to a bonus based on profits, or a later modified guaranteed bonus is a credibility determination. Although no written reasons were assigned, the trial judge apparently resolved the credibility determination in favor of defendant. We find no error in this determination. The record contains evidence to support this finding. Although plaintiff is entitled, under the employment contract, to receive a bonus based on net profits, the record fails to contain any evidence of corporate net profits during the term of plaintiff’s employment. Accordingly, plaintiff has failed to establish entitlement to any bonus.

The trial judge awarded defendant a judgment on his reconventional demand in the sum of $2,700 together with interest and attorneys’ fees. This indebtedness is represented by six $450 promissory notes and includes payment of attorneys’ fees upon Kosbab’s default. Because we have concluded Eubanks was indebted to Kosbab in the sum of $10,000 at the time the notes were made, plaintiff was never in the position of a debtor owing $2,700 to Eubanks. We conclude the $2,700 was not loaned to Kosbab but was in the nature of part payment of the amount paid by Kosbab to Eubanks. Consequently, there was no consideration for the notes. Under these circumstances Eubanks is entitled only to a set off of $2,700 but is not entitled to the interest and attorneys’ fees stipulated in the notes.

Defendant failed to support his claim for mismanagement losses. Accordingly, we do not disturb that part of the judgment dismissing this reconventional demand.

DECREE

Consistent with the foregoing, the judgment of the trial court is annulled and set aside. Judgment is now rendered in favor of plaintiff, Paul M. Kosbab and against B. R. Eubanks in the sum of $10,000 together with interest from date of judicial demand. Judgment is rendered in favor of B. R. Eubanks and against plaintiff in the sum of $2,700 with interest from date of judicial demand. This amount is to be offset against the judgment in favor of plaintiff. Plaintiff’s claim for entitlement to a bonus is dismissed. Defendant’s reconventional demand for claimed mismanagement losses is also dismissed. Costs to be divided equally between the parties.

JUDGMENT ANNULLED AND SET ASIDE.

JUDGMENT RENDERED.

      . The notes were dated June 12, 1972, September 6, 1972, December 4, 1972, February 28, 1973, June 1, 1973 and November 23, 1973.

      . In this connection, a former employee testified that he and his wife were called by defendant on the eve of the sale and told about the sale, but were requested by Eubanks not to divulge this information to Kosbab because Eu-banks wanted to inform plaintiff.

      . Kosbab was neither listed, nor included, as an owner of stock of the corporation.

      . In the articles of corporation, dated September 1968, the authorized capital stock was 1,000 shares. Eubanks owned 998 shares. His wife owned one share and a secretary owned the remaining share. The original agreement in April, 1972 apparently contemplated that plaintiff was to purchase shares of stock from Eubanks upon payment of $10,000. However, according to Eubanks, his CPA advised him that in order to reduce his tax liability, the corporation should issue the shares to plaintiff. This advice was given to Eubanks in May, 1973. Thereafter, on May 21, 1973, an amendment was made to the articles of the corporation, increasing the authorized capital stock to 10,000 shares. Eubanks, his wife and the remaining shareholder appear and execute the corporate amendment authorizing the stock increase and represent, in that document, that they are authorized to execute the amendment by unanimous consent of the shareholders. Reference is made to the signed consent document, but the document is not attached to the charter amendment.

      . Gross sales in 1971 was $231,471.62; in 1972 —$378,401.00; in 1973 — $536,197.33. In 1972 the assets were $177,876.36 and in 1973 the corporation had $183,000.00 in accounts receivable and an automobile.


text:
    Lena WEST v. LOUISIANA BOARD OF REVIEW et al.
    No. 9640.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      White, Fray & White, Robert H. Fray, Gretna, for plaintiff-appellant.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

This is an appeal from disqualification for benefits for unemployment compensation. Plaintiff’s claim for benefits was disallowed initially by the agency, whereupon the case was heard by an Appeals Referee who affirmed the disqualification. This decision was further affirmed by the Louisiana Board of Review, and that decision was affirmed by the District Court.

The Appeals Referee found that plaintiff left her job following an argument between her and one of the salesmen employed by her employer. This salesman had no authority or supervisory jurisdiction over plaintiff whatsoever. The argument took place when plaintiff told him she was due a salary increase and the salesman rejoined that she was not entitled to one. She had intended to ask the employer for a salary increase but she never made any such request. After the argument she left the job for a time, returning later on the same day, reported to her employer and advised him she was quitting her job. Asked why she was quitting, she told her employer to ask the salesman with whom she had argued. She then left the job again without explaining to the owner why she was leaving.

In a judicial review of the decision of the Board of Review the findings of the board as to facts, if supported by sufficient evidence, and in the absence of fraud shall be conclusive with the court’s jurisdiction confined to questions of law. LSA-R.S. 23:1634. The record consisting of the testimony of plaintiff completely supports the findings summarized above. The only other witness who testified was the plaintiff’s daughter-in-law who had no personal knowledge of the pertinent events.

R.S. 23:1601 provides that an individual shall be disqualified if the administrator finds that he has left his employment without good cause connected with his employment. In this case the evidence shows that plaintiff simply quit and left her job without any request made to or discussion with her employer.

In Ellis v. Doyal, 330 So.2d 370 (La.App. 4th Cir. 1976) we held that plaintiff was not entitled to unemployment benefits where he asked for a raise, was denied same, and then voluntarily quit because the raise was not given. Here we have an employee who never asked for a raise, but instead told a co-worker that she was entitled to a raise, and after quitting told her employer in answer to his question as to why she quit that he could ask the co-worker.

The judgment appealed from is affirmed.

AFFIRMED.


text:
    Wallace NATHAN, Jr., et al. v. Henry Zac CARTER et al.
    No. 9641.
    Court of Appeal of Louisiana. Fourth Circuit.
    Jan. 9, 1979.
    Writ Granted March 5, 1979.

      Wiedemann & Fransen, A. Remy Fran-sen, Jr., New Orleans, and Paul Aucoin, Vacherie, for plaintiffs/appellants.
    Christovich & Keraney, Terry Christovich Gay and A. R. Christovich, Jr., New Orleans, for defendants/appellees.
    Before SAMUEL, REDMANN and GU-LOTTA, JJ.
   GULOTTA, Judge.

In this wrongful death action, plaintiffs appeal from the trial court’s judgment maintaining a plea of prescription. The accident occurred on November 5, 1970 and the suit was filed on August 6,1976. Plaintiffs claim that defendant’s employees and representatives “did knowingly, willfully and intentionally lead” Mrs. Odessa Nathan to believe that she and her family would be “well taken care of”, thereby lulling her into not seeking legal counsel and not filing suit. Plaintiffs further claim that because of defendant’s intentional misrepresentation, the doctrine of “contra non valentem” is applicable and their suit is not barred by one year prescription.

It is plaintiffs’ contention, on appeal, that the trial judge erred in maintaining the plea of prescription merely upon consideration of affidavits and argument without affording an opportunity for the presentation of additional evidence; that the issue of interruption of prescription based on the doctrine of contra non valentem is a factual question to be submitted to a jury; and, that the trial judge erred in maintaining the plea of prescription where defendants presented no evidence to controvert plaintiffs’ affidavits.

The trial judge concluded the almost six year delay for the filing of plaintiffs’ suit “is not a period during which such words, etc. could reasonably be expected to prevent judicial assertion, thus suspending prescription.” According to the trial judge, “six (6) years is too long.”

In an affidavit filed in support of the interruption of prescription, plaintiff, Odessa Nathan, states that two or three days after the death of her husband and while accompanied by her two brothers, she was requested by an employee in defendant’s claim department not to contact any attorney because her husband’s death was under investigation. She further states, in that affidavit, she was told by the adjuster on that occasion, that if she did employ an attorney and suit was filed, her workmen’s compensation check would be terminated; that the matter could be litigated for five to seven years and she would receive nothing in the interim; and, that when the investigation was completed she would receive a lump sum payment. According to plaintiff, based on these representations, she did not employ an attorney to represent her. An affidavit of plaintiff’s brother generally corroborates plaintiff’s statements.

Well settled is the rule that the doctrine of contra non valentem applies only where ignorance of a party’s right to file suit is not “willful and does not result from negligence.” See Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970); Blouin v. Loyola University, 325 So.2d 848 (La.App. 4th Cir. 1976). Furthermore, “reasonable diligence” must be exercised by a plaintiff in pursuit of his claim in order to avail himself of the benefit of the doctrine. Green v. Grain Dealers Mutual Insurance Company, 144 So.2d 685 (La.App. 4th Cir. 1962); Tassin v. Allstate Insurance Co., 310 So.2d 680 (La.App. 4th Cir. 1975), writs denied, 313 So.2d 836 (La.1975).

Although plaintiff is an uneducated person with eight children, it is difficult to conclude that she was not negligent in failing to pursue her claim. As indicated in the affidavit, the misrepresentation occurred within two or three days after the accident, in one isolated instance, by a claims representative in the presence of plaintiff and her two brothers. According to plaintiff, based on this misrepresentation, she failed to file suit or seek legal counsel for a period of approximately five years and nine months. This is not a case where the misrepresentations were made on numerous occasions over an extended period of time which repeatedly lulled plaintiff into a sense of security.

The circumstances considered, we cannot say plaintiff exercised “reasonable diligence” in asserting her claim. Accordingly, we conclude the doctrine of contra non va-lentem is not applicable to plaintiff.

We further find no merit to plaintiffs’ contention that the contra non valen-tem issue should have been referred to the merits to be considered by jury. (Jury trial had been requested). There exists, in this case, no factual dispute to be resolved by a fact finder. The question is whether or not a five year, nine month delay in filing suit is reasonable. This question is a legal one to be decided by the trial judge. See Green v. Grain Dealers Mutual Insurance Company, 144 So.2d 685 (La.App. 4th Cir. 1962); Williams v. Red Barn Chemicals, Inc., 188 So.2d 78 (La.App. 1st Cir. 1966). Under the circumstances we find no abuse of the trial court’s discretion in passing on the prescription question, in limine, without referring the matter to the jury. See Chin See Fun v. Louisville and N. R. Co., 344 So.2d 8 (La.App. 4th Cir. 1977), writ denied, 346 So.2d 210 (La.1977); Duhon v. Saloom, 323 So.2d 202 (La.App. 3rd Cir. 1976), writ refused, 325 So.2d 794 (La.1976).

The judgment is affirmed.

AFFIRMED.


author: STOULIG, Judge.

text:
    DiMARIA INSURANCE AGENCY, INC. v. B & R FENCES, INC.
    No. 9650.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      Roy A. Respanti, Chalmette, for plaintiff-appellee.
    Patrick D. Breeden, New Orleans, for defendant-appellant.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   STOULIG, Judge.

Defendant, B & R Fences, Inc., obtained a judgment of $1,170.39, representing the balance due plaintiff, DiMaria Insurance Agency, Inc., on two insurance policies purchased by defendant. It is conceded plaintiff, an insurance broker, obtained for defendant a workmen’s compensation liability policy and a multi-peril liability policy covering the period January 12, 1977 through January 12, 1978. Further the litigants agree that the policy premiums and payments are as follows:

Premium, workmen’s compensation policy
Less discount 211.00 $3,028.00
Premium, multi-peril policy 1.791.00
Total premiums payable 4,819.00
Less payments of $619.00 and
$624.06 1.243.06
$3,575.94

The policies were cancelled six months after they were written because defendant, after repeated requests for payments, still refused to pay the premiums. Under the policies the total credit due defendant on both premiums is to be determined after an audit.

President Joseph DiMaria testified an auditor with Zurich Insurance Company, the insurer, determined credits of $986.00 and $1,216.00 were due on the multi-peril and the compensation policies, respectively. Defendant’s counsel objected to this hearsay evidence, however, the trial court improperly admitted and considered DiMaria’s testimony on the credits, presumably on the theory it was a business record of the broker. The auditor was not employed by plaintiff and the audit was not conducted under DiMaria’s supervision; therefore, it is inadmissible as hearsay. This report is an extrajudicial statement offered to prove the truth of the matter; however, it is not reliable evidence because the auditor who compiled the report was not before the court, had not been sworn and was not available for cross-examination. Lambert v. Heirs of Adams, 325 So.2d 331 (La.App. 3d Cir. 1975). The record reflects that the litigants admit the audit is required and that plaintiff failed to prove by competent evidence the extent of credit the audit indicates should be given to defendant.

Even if we were to concede that the credit is correct, we cannot reconcile the judgment amount with the figures given by plaintiff’s president, Joseph DiMaria. Our prior computation shows a net premium claim of $3,575.94. It we deduct the credit allowed by plaintiff of $2,202.00 (without conceding its correctness), we show a balance due of $1,373.94. Additionally Mr. Di-Maria claims $318.51 of the $1,170.39 demanded in the petition is interest, and if this were deducted, there would only be an unpaid premium claim of $752.88. This court cannot compute these figures to balance with plaintiff’s claim.

Therefore we remand this matter to permit plaintiff to present evidence to establish the audit result and afford defendant the opportunity to challenge it. Further the confused accounting should be clarified so that the account can be reconciled, no matter what result is reached.

For the reasons assigned the judgment appealed from is annulled and this matter is remanded for further proceedings consistent with the views herein expressed.

ANNULLED AND REMANDED.

      . For application of the hearsay rule, see Robinson v. St. Paul Fire & Marine Insurance Co., 298 So.2d 282 (La.App. 1st Cir. 1974); Ordonez v. Maryland Casualty Company, 312 So.2d 875 (La.App. 4th Cir. 1975).


text:
    DELAUREAL ENGINEERS, INC. v. ST. CHARLES PARISH POLICE JURY.
    No. 9654.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Writ Refused Feb. 23, 1979.

      Murray, Murray, Ellis, Braden & Landry, Michael H. Ellis, Steven F. Griffith, Sr., New Orleans, for plaintiff-appellant.
    Don Almerico, Norco, for defendant-ap-pellee.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

On April 18,1972, plaintiff entered into a contract for engineering services to be provided to defendant in connection with the roads in St. Charles Parish. The contract called for the improvements of those roads “eligible for improvement” with “Royalty Road Funds” and by resolution in May the contract was authorized by the defendant, Police Jury, with the provision that “payment for the services shall be made from the Royalty Road Fund, or other funds that may be made available for that specific purpose.”

The work to be performed by plaintiff under the contract was in five phases. The first phase designated the “schematic design phase” required plaintiff to prepare a preliminary engineering study and report of the existing parish roads. In November, 1972, plaintiff presented its preliminary engineering report under the first phase of the contract and submitted invoices to defendant for this work on February 15,1973, in the amount of $37,514.80, the principal amount sued on.

At this point in time the Royalty Road Fund was administered by the State Department of Highways, pursuant to Art. 4, § 2, of the Constitution of 1921, and in September plaintiff’s invoices were sent by defendant to the Department for payment. In October, the Department returned the invoices “because the agreement or contract dated April 18,1972, did not receive approval of the Department prior to its execution.” The letter went on to state that the rates or fees charged by plaintiff were in excess of those normally made for this type of work.

In the meantime the Department and the Parish entered into an agreement in June, 1973, under which the Highway Department would take over the road project in the Parish and retain plaintiff as the engineer. In July a contract between plaintiff and the Highway Department was executed and provided the following scope of the project:

“The Project as covered by this contract shall consist of providing all necessary engineering and land surveying services required for developing plans for improving the various Parish roads described in the Engineers’ preliminary engineering report of November 27, 1972, which is made a part hereof by reference and, after the construction project has been placed under contract, the providing of resident administration and inspection of construction services in accordance with existing Departmental policies . . . ”

Phase I of the contract between plaintiff and the Highway Department involved the making of field surveys by plaintiff along with the design and preparation of plans for the road work to be done in the Parish. Phase II of the contract involved the actual construction phase of the work. The plans were put out for bids but these were found to be prohibitive and defendant rejected the bids because of a lack of funds. Defendant then proceeded to do the work on its own utilizing the information which had been developed along the way. In the meantime, with the advent of the Constitution of 1974, Art. 7, § 4(E), the Royalty Road Funds were transferred by the State to the Parish so that the defendant had unrestricted access to these funds and was able to pay for the work it was now doing on its own.

In response to the suit filed by plaintiff, defendant pleaded payment and contends that the work done by plaintiff for the State Highway Department for which it was paid in excess of $86,000 included the same work it had done under the contract with defendant. Defendant contends that plaintiff is making a “double billing,” i. e., attempting to be paid twice for the same work.

In his reasons for judgment the trial judge stated that the contract provided that payments were to be made from the Royalty Road Funds, and after plaintiff performed its work the parties both found that the State, which had authority over the fund, would not honor the contract because it was not a party to it. He went on to say:

“Plaintiff, with the active support of the Police Jury President, Hooper, hastened to contract with the State for the selfsame services set out in the contract with the Police Jury. In fact this contract, entered into on July 10, 1973, described the Scope of the Project and made the preliminary engineering report of plaintiff a part of the contract. Plaintiff was well paid for the preliminary engineering report by the State to the tune of $86,-223.39.
The evidence does not substantiate plaintiff’s claim that the work performed for the jury under the 1972 contract was not the same work performed for the State under the 1973 contract. Plaintiff was well paid under the 1973 contract and now cannot collect for the same work from the defendant.”

We have concluded that the evidence of record does not support these findings. Plaintiff, as a matter of law, is entitled to recover the amount it claims.

In the first place plaintiff and defendant entered into a binding contract in which the plaintiff was obliged to deliver to defendant a preliminary plan and defendant agreed to pay a price for this plan. Plaintiff delivered exactly what was expected of it, but defendant took the position that the only funds available for payment would be from the Royalty Road Fund, and when the State, which had the authority to administer the fund, declined to release the payment defendant was under no obligation to pay the bill. In the first place, this argument overlooks the fact that the resolution of the Police Jury did not condition its obligation to pay on the availability of Royalty Road Funds but also obliged itself to pay out of any other funds that may be available. In the second place, Royalty Road Funds in fact did become available to defendant in 1974, so that even if such a condition had been originally placed on payment that condition was fulfilled and there was no longer an excuse for defendant’s nonpayment based on the Royalty Road Fund issue.

In the meantime plaintiff made a contract with another entity, the Highway Department, to perform certain work, and at the conclusion of that work it was paid in full by the Highway Department. We fail to see how this relieved defendant of its contractual obligation to pay the price to plaintiff for services and goods which the plaintiff delivered to defendant. When the preliminary plan was delivered by plaintiff to defendant the defendant’s obligation was fixed. It owed the price under the contract. Had plaintiff done nothing beyond the preliminary plan and had the Department paid the bill in defendant’s behalf perhaps the plea of payment would have some merit but the facts do not support that theory.

Without laboring the testimony of all the witnesses, plaintiff produced a representative of the Highway Department and two engineers employed by plaintiff. These witnesses unanimously testified that the preliminary plan, which is the subject of this suit, was not included in the work undertaken by plaintiff for the Highway Department for which plaintiff was paid in full. The preliminary plan was a general overall survey of the extent and condition of existing roads in the Parish, recommendations for the type and extent of improvements and repairs, and an estimate of the cost which would be incurred in the performance of such work. It contained maps of various parts of the Parish and the roads therein throughout the Parish. This plan enabled the Police Jury members to decide what priorities to assign and to make a division of benefits among the various wards of the Parish, based upon an objective study of the condition of the roads and an estimate of costs. The Police Jurors could thereby make an equitable distribution among their constituencies of whatever funds were available to the Parish for road work.

It is obvious from reading the contract between plaintiff and defendant, and the one between plaintiff and the Highway Department, that the two contracts are entirely different. In the first place, the quoted portion of the scope of the project in the contract between plaintiff and the Highway Department clearly eliminates the suggestion that the Highway Department is paying for the preliminary engineering report. On the contrary, it recognizes that that report has already been made and the scope of this new contract is to develop those plans with the actual engineering and land surveying services as well as the actual construction of the project. The contract calls for the use of soil boring information, topographic surveys and the furnishing of prints which are suitable for use in the bid process. Even one who is not an expert engineer can look at the maps which are attached to the preliminary plan and readily conclude that these are not what was called for under the contract with the State. In any event, all the experts agreed on this with the lone exception of Harney Hooper, the president of the Police Jury at the time the case was tried.

The testimony of Mr. Hooper does not provide a basis for the trial judge’s conclusions. In the first place, he was not the president of the Police Jury when this contract was signed and apparently was opposed to the contract from the very beginning of his term of office. His testimony consists of vague opinions and assumptions which he drew from documents which he did not produce, and from statements and testimony of others about which he was allowed to testify over the objection of plaintiff. He repeated the “double billing” charge throughout his testimony but never demonstrated either in the contracts or in the testimony of those who had testified in plaintiff’s behalf exactly what work was billed to the Police Jury and was also billed to the State under the second contract. A reading of his testimony readily demonstrates that there was no substance to his charge of double billing, and the testimony of plaintiffs witnesses stood essentially un-contradicted.

We have concluded that plaintiff is entitled to a judgment for the principal amount sued on, and likewise find that plaintiff is entitled to interest and attorney’s fees as provided in § 8.2.2 of the contract as follows:

“Progress payments shall be made in proportion to services performed as indicated within the Agreement and shall be due within 30 days of the ENGINEER’S sub-mittal of his monthly invoice. Any amounts not paid within 30 days from date of presentation of the invoice shall commence to bear an interest charge at the then prevailing bank loan rates. If the amount is not paid and must be placed into the hands of a collector or attorney, additional charges will be due for the cost of collection, interest costs and reasonable attorney’s fee.”

There is no showing in the record as to the prevailing bank loan rate of interest at the time of the billing of February 15,1973, so that the legal rate of interest is applicable. Plaintiff incurred legal fees of $4,417.75 through the trial of the case in the trial court. In addition, plaintiff is entitled to a reasonable fee for services rendered in this court, which we assess at $1,000.

Accordingly, the judgment of the trial court is reversed and set aside and there is judgment in favor of plaintiff, DeLaureal Engineers, Inc., and against defendant, St. Charles Parish Police Jury, in the sum of $37,514.80, with legal interest from February 15, 1973, until paid, together with $5,417.75 for attorney’s fees and for all costs of these proceedings.

REVERSED AND RENDERED.