author: GARRISON, Judge. BEER, Judge,

text:
    Mrs. Georgia Nettie CLOFORT v. MATMOOR, INC. and United States Fidelity & Guaranty Company.
    No. 9950.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1979.

      Schroeder, Kuntz & Miranne, Herman M. Schroeder, New Orleans, for plaintiff-appel-lee.
    Chaffe, McCall, Phillips, Toler & Sarpy, Charles L. Chassaignac, New Orleans, for defendants-appellants.
    Before SAMUEL, BEER and GARRISON, JJ.
   GARRISON, Judge.

Mrs. Georgia Colfort sued her former landlord, Matmoor, Inc., and its insurer for injuries received when she fell down the back steps of the premises at 6019 Bienville Street, New Orleans. After judgment for plaintiff in the amount of $47,413.30, defendants have appealed on the issues of' liability and quantum.

The evidence showed that Mrs. Clofort fell when a wooden stair tread broke as she stepped on it. Defendants attempt to escape the general liability imposed on owners and lessors under La.Civ.Code Arts. 670, 2322 and 2695 by referring to La.R.S. 9:3221, which allows the lessor to limit contractually his liability for defects in the leased premises. To evidence plaintiff’s alleged assumption of responsibility, defendants introduced a copy of the rental receipt booklet the Cloforts received when they first rented the premises. Printed on the cover of that booklet are the following statements:

“All rents payable in advance.
“Late payments subject to extra charge of 10% if over 5 days delinquent.
“30 days notice must be given when vacating.
“Premises must be left broom swept clean.
“This book is your receipt; bring it with you when making payments. If lost, there will be a charge of 50<f for a duplicate.
“Tenant responsible for all damage other than normal wear and tear.
“No liability will be assumed by this office.
“Tenants must notify office in writing of any defects, or necessary repairs.” (Emphasis added.)

Defendants admitted that the premises were rented under an oral month-to-month agreement, but contend that the printed stipulations on the rental receipt booklet constituted part of the terms of the agreement and an assumption of responsibility by the tenant under R.S. 9:3221.

The contract contemplated by R.S. 9:3221 may be either oral or written, but the defendants have the burden of proving with legal certainty the existence of such a contract. Phillips v. Cohen, 183 So.2d 473 (La.App. 4th Cir. 1966); Roppolo v. Pick, 4 So.2d 839 (La.App.1941). Defendants have failed to produce any proof that plaintiff or her husband agreed to assume any responsibility for defects in the premises. The testimony showed that plaintiff and Mr. Clo-fort had painted the interior of the apartment themselves immediately after moving in, but that their landlord had supplied the paint. When they had plumbing problems, the landlord had sent out a plumber and paid for the repairs. The day after plaintiff fell on the back steps, the landlord sent a carpenter to repair the broken step and paid for the repairs. There is no evidence that plaintiff and Mr. Clofort ever made any agreement to maintain the premises. There is no evidence that the lessor or its agent, Louis Hufft, ever called plaintiff’s or Mr. Clofort’s attention to, or explained to them, the stipulations on the rental receipt book. The facts in this case are well-described by the following excerpt from Roppolo v. Pick, supra:

“[A]s disclosed by the record, no discussion was had, nor was any notice or warning, verbal or otherwise, directed to the lessee to the effect that the receipts embodied a special contract between them. Defendant must necessarily rely entirely upon the silent delivery and acceptance of the rent receipt to sustain her contention that such a stipulation constituted a contract between them.
“From the circumstances of the transaction, lessee unquestionably had the right to regard this rent receipt simply as a receipt or voucher, evidencing payment of the first monthly rental. No stipulation or agreement was entered into, and much less was there ever an understanding between lessor and lessee, that the rent receipt, with its inscription, would constitute a special contract between them and intended, as such, to serve that particular purpose. We are satisfied that such a voucher, or receipt, with its inscription, does not give rise to a contract between the parties and thereby impose upon the lessee the assumption of risk urged by defendant.” 4 So.2d at 842.

We conclude that defendants have failed to prove the existence of a special contract by which the tenant assumed responsibility, and therefore R.S. 9:3221 is not applicable. Accordingly, we find that defendants are liable for plaintiff’s injuries under Civ.Code Arts. 670, 2322 and 2695.

Three doctors testified regarding plaintiff’s injuries. Dr. Kenneth Kemmerly, plaintiff’s gynecologist, testified that she came to him three days after her fall, complaining of pain, and upon examination he noted an abrasion on her back at L-4 and L-5 and tenderness. He prescribed Valium as a muscle relaxant. When she returned a week later, complaining that her back was still bothering her, examination of the low back area revealed acute spasm of the back. He prescribed an additional painkilling muscle relaxant, Wygesic, and advised her to seek treatment from Dr. Courtney Russo, an orthopedist. Dr. Kemmerly also ordered lumbosacral spine X-rays, which showed lumbosacral spine to be within normal limits. Dr. Kemmerly could not remember whether she complained about the cervical area at that time. She did not return to him after that second visit.

Acting on Dr. Kemmerly’s referral, plaintiff made an appointment with Dr. Russo, who subsequently became her treating physician for the back injury. Dr. Russo testified that his initial examination revealed spasm in the paravertebral muscles, diminished sensation on a portion of the left side, and weakness in the extensor tendon of the left big toe. Dr. Russo’s initial impression was a probable herniated disc at L-4 and L-5. At his recommendation, plaintiff was hospitalized for traction and evaluation for twenty-two days. A lumbar myelogram taken during that time was normal. Clinical diagnosis was acute lumbar strain and coccydymia; the medical records show that prior to entering the hospital she had been experiencing bowel and urinary difficulties, pains in her legs and toes, and episodes of nausea and vomiting. Dr. R. L. Strub, a neurologist called in on consultation by Dr. Russo, apparently found no neurologic deficits, recommended physical therapy and restraint in the use of painkilling and tranquilizing medications. She received physical therapy and, after discharge, was fitted with a lumbosacral corset. She was placed on various types of medications, including Valium, Fiorinal and Placidyl. She was sent home to complete bed rest for four to six weeks.

On a follow-up visit one-and-one-half months after discharge, Dr. Russo found plaintiff still had a lessening of sensation at L-4 and L-5 levels, which, the doctor stated can be associated with a ruptured disc. She also had muscle spasm in the lumbar region. The doctor prescribed heart treatments and rest.

By December 1975 (approximately three months post-hospital) plaintiff’s main complaints were headaches, which Dr. Russo attributed to neck problems related to her fall. He referred her to Dr. Daniel Trahan, a neurologist. Dr. Trahan examined plaintiff only once, in February 1976. He testified that she complained of nausea, blurred vision, neck tenderness, and intermittent pain in the lower lumbar area. His examination revealed mild paravertebral and tra-pezius spasm, particularly in the muscles on either side of the neckbone spreading out into the shoulder region. Plaintiff’s surgical spine X-rays were returned as normal. Dr. Trahan concluded that plaintiff’s headaches were cervical in origin and muscular in nature, related to chronic paravertebral spasm and resulting from her fall the preceding July. He found no evidence of neurological back problems, but stated that he had been looking only for problems related to her headaches. He did not examine her back. He admitted that a patient can show a negative syndrome which later develops into a positive syndrome. He prescribed Valium and heat treatments.

Mrs. Clofort continued afterwards to be treated by Dr. Russo. She visited him in March, July, August and October of 1976. On each visit she consistently complained of headaches, neck pain and back pain. Dr. Russo concluded that her headaches emanated from the cervical rather than the lumbar region, and diagnosed a cervical strain with a root syndrome (pinched nerve). He continued treatment by heat massage and medication, including Valium, Fiornal, and Percodan. He also prescribed use of an orthopedic collar for an unspecified time.

After her visit to Dr. Russo in October 1976, plaintiff did not return to him for over a year. She testified that although she still had pain, she had moved out of town and it was too long a drive for her to make without discomfort. She stated that she continued to suffer pain, intermittently and in varying degrees, during this time, but that she had discontinued the physical therapy sessions because she could not afford them. There was some testimony to indicate that she had been treated by a Dr. Bertucci during this year, but he did not testify at trial.

In October 1977, plaintiff returned to Dr. Russo. (This visit was made two months before the trial, and was the last time she saw him before trial.) She complained of pain in her neck and between her shoulders, occasional numbness and weakness in the left upper extremity, and pain in the lum-bosacral region radiating down into the left buttock, with some spasm and pain in the cervical region on extremes of flexion and extension. Dr. Russo testified that these symptoms indicate a lumbar problem. Plaintiff still suffered some numbness in the left big toe, and differentials between the right and left leg on straight leg raising indicated to Dr. Russo a nerve root involvement in the area of the fourth disc or the third nerve root. He diagnosed this as a “disruptured” disc or “soft” disc, in which periodically bulges and presses on the nerve and then moves back into place. Based on her history during the two-and-one-half-year period between her injury and the trial, Dr. Russo concluded that plaintiff will have intermittent pain for most of her life. He estimated that she had a three to five percent permanent disability of the whole body, and that the only relief, other than continued heat treatments, massage and periodic medication, would be surgery, if indicated in the future.

Based on Dr. Russo’s testimony, the trial judge found that plaintiff suffered longstanding cervical and lumbar injuries which she would continue to suffer for the rest of her life on an intermittent basis, and that she had a three to five percent permanent disability of the whole body. In assessing damages for pain and suffering, the judge considered Mrs. Clofort’s twenty-two-day hospitalization in 1975, that she had to wear an orthopedic corset for approximately a year, that she had to wear an orthopedic collar for some time, and also that her objective symptoms were still manifest over two years post-accident. He also considered her age at time of trial (39) and noted that she was a “small, slight, energetic-type of person, whom the evidence indicates was a very active type of person.” Accordingly, he awarded her $45,000 for pain, suffering, and permanent disability ($20,000 for past pain and suffering, $25,000 for future pain, suffering and permanent disability).

Defendants allege error in the trial court’s finding that plaintiff had sustained an injury of a longstanding and continuing nature. It is well-settled that factual conclusions of the trial court should not be disturbed absent a finding of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). The Canter standard of review has since been clarified by Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under the Arceneaux guidelines, the appellate court cannot simply find a “reasonable basis” for the trial court’s findings, but rather it must determine that “the record establishes that the finding is not clearly wrong (manifestly erroneous).” 365 So.2d 1333. Our review of the record convinces us that the trial judge committed no manifest error in finding that plaintiff’s injury was longstanding and continuing. His finding is well-supported by Dr. Russo’s testimony as well as by plaintiff’s, and we see no convincing evidence against it. Dr. Russo’s testimony certainly must be given great weight, for he is the only physician who saw plaintiff regularly and repeatedly between the accident and the trial. That Mrs. Clo-fort’s pain may now have become “intermittent” does not mean that it is not “continuing.” Dr. Russo testified that she would likely have flare-ups of pain on and off for the rest of her life.

Defendants have also appealed on the question of quantum. They contend the $45,000 amount was an abuse of discretion and that $15,000 was the most that should have been awarded.

“The courts of appeal have a constitutional duty to review the law and facts and thereafter render a judgment of quantum based on the merits, determining whether the jury has abused its ‘much discretion’ that the law accords it in awarding damages. [Citations omitted.] Before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. [Citations omitted.] In the event the appellate court finds from the record an abuse of discretion, the award may be disturbed by lowering it to the highest point which is reasonably within the discretion afforded the trier of fact. [Citations omitted].”
Wilson v. Magee, 367 So.2d 314 at 315 (La.1979).

See also, Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Our role in review of quantum, as jurisprudentially interpreted, is to determine an abuse of discretion not so much by reference to similar cases (for only “truly similar” eases should be considered), as by consideration of the particular facts and inferences to be made in each case. See Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Coco v. Winston Industries, Inc., supra; Boutte v. Hargrove, 290 So.2d 319 (La.1974). The trial court’s “great discretion” is wide indeed, and an appellate court cannot disturb an award simply because the appellate court would have awarded a lesser or greater amount. Coco v. Winston Industries, Inc., supra; Spillers v. Montgomery Ward & Co., Inc., 294 So.2d 803 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974).

Considering these principles, and based on our review of the record, we do not think the trial judge abused his discretion in awarding plaintiff $45,000 for past and future pain and suffering and disability. While this amount must be considered to be on the high end of the spectrum, we believe the record supports the trial judge’s decision. Considering plaintiff’s age, her lengthy hospitalization, the continued manifestation of pain and other symptoms prior to trial, the inconveniences plaintiff suffered in wearing orthopedic devices and in having to take pain medication so constantly, the limitations that will be placed on her by her future disability, and last but not least, the factors of rampant economic inflation, we do not consider $45,000 general damages to be an abuse of discretion.

For the above reasons, the decision of the trial court is affirmed.

AFFIRMED.

BEER, J., dissents and assigns reasons.

BEER, Judge,

dissenting.

I respectfully dissent from the affirmation of the quantum award.

The majority characterizes the award as “on the high end of the spectrum” but concludes that the record supports the trial judge’s decision. I disagree. In my view, the award represents a clear abuse of discretion. I believe that the “high end of the spectrum” should be $15,000.

      . “Art. 670. Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages, which may result from the neglect of the owner in that respect.”
      “Art. 2322. The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”
      “Art. 2695. The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

      . “The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.” R.S. 9:3221.

      . Plaintiff and Mr. Clofort were not married to each other at the time they rented the apartment, and the evidence is not clear as to whether only one of them, or both of them, were the lessees under the oral month-to-month agreement. Thus, we do not base our finding of liability solely on Art. 2695, since it is not clear that Mrs. Clofort is actually the lessee, she may instead be a third party.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Robert Lee PARKER v. SOUTH LOUISIANA CONTRACTORS, INC., Solocol Pipeline Contractors, Inc., Martin Exploration Corporation, H. J. Serrette, and A. W. Eggleston, Inc.
    No. 12594.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Rehearing Denied May 29, 1979.

      Louis R. Koerner and Stephen M. Bernstein, A Professional Law Corp., New Orleans, counsel for plaintiff-appellee, Robert Lee Parker.
    William A. Porteous, III, William W. Miles and Edward Brandao, of Porteous, Toledano, Hankel & Johnson, New Orleans, counsel for defendant-appellant, Martin Exploration Corp.
    C. Edgar Cloutier, of Christovich & Kear-ney, New Orleans, counsel for intervenor-appellee, Atlas Truck Line, Inc.
    Donald L. King, of Jones, Walker, Wae-chter, Pointevent, Carrere & Denegre, New Orleans, counsel for defendants-appellees, South Louisiana Contractors, Inc. and Solo-co Pipeline Contractors, Inc.

      Winston E. Rice, of Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, counsel for defendant-appellee, H. J. Ser-rette.
    Michael Elvin Ponder and James E. Moore, of Franklin, Moore & Walsh, Baton Rouge, counsel for defendant-appellee, A. W. Eggleston, Inc.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   LOTTINGER, Judge.

This is an action ex delicto filed by Robert Lee Parker against South Louisiana Contractors, Inc., Soloco Pipeline Contractors, Inc., Martin Exploration Corporation, H. J. Serrette, and A. W. Eggleston, Inc. From a judgment in favor of plaintiff and against the defendant, Martin Exploration Corporation, plaintiff and defendant have each appealed.

The record points out that plaintiff fractured an ankle when he fell in a hole while attempting to deliver oil field materials to a drilling site in the Bayou Bouillion Field in Iberville Parish. More particularly, plaintiff was directed by his employer, Atlas Truck Line, Inc., to deliver a truck load of oil field materials to a landing at Butte-La-Rose for ultimate delivery to Martin Exploration Company at its drilling site in the Atchafalaya Basin. Plaintiff and a companion driver arrived at the'Butte-LaRose landing about 2:00 P.M. the afternoon of August 5, 1974. Upon checking with the Soloco personnel at the landing, they learned it was necessary to barge their trucks downriver to a landing ramp near the drilling site. The tug and barge arrived at 9:00 P.M., and after loading the trucks onto the barge, the trip began downriver.

At the unloading site, where the accident happened, the barge was pushed into an unlighted ramp for purposes of unloading. Plaintiff departed the barge and walked up the levee to determine the direction of the board road which led to the drill site. Upon his return to the barge, he noticed his companion driver and personnel from the tug attempting to lower the loading ramp. In attempting to lower the ramp plaintiff stepped into a hole located in the middle of the ramp. The ramp was constructed similar to an automobile lift seen in service stations, with elongated support areas for the tires, and a space down the middle. The only light at the unloading ramp was from the truck headlights and a spotlight on the tug. Plaintiff stated that he was partially blinded by the tug’s light shining in his face, though he shielded his eyes.

All defendants other than Martin were dismissed prior to trial.

After a jury trial, the jury awarded plaintiff $84,000.00. In answer to interrogatories it found the defendant, Martin, negligent in failing to have lights at the landing, having a ramp with a separation, failing to warn plaintiff of the separation in the ramp and that Martin’s negligence was a proximate cause of the accident. It found no contributory negligence on the part of plaintiff. It further found a vice or defect in the construction of the ramp or lights at the loading site, this was a proximate cause of the accident, and Soloco and Martin jointly were responsible for the vice or defect in design or construction. The trial judge initially signed a judgment for $84,-000.00, but subsequently amended the judgment to reduce the award by one half.

During oral argument, counsel for defendant-Martin seemingly argued for a remand because of the alleged errors by the trial judge. In Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), the Supreme Court made it abundantly clear that for the sake of judicial economy, when an appellate court has all the facts before it, a trial judge’s erroneous instructions to the jury or rulings on evidence do not warrant a remand. Though this writer does not necessarily agree with the arguments made and the position taken in Gonzales, because a party litigant is deprived of a jury’s evaluation of credibility and its reasonable inferences of fact, as an intermediate appellate court, we are bound by this decision. We now proceed to a discussion of the errors assigned by defendant.

In appealing, defendant, Martin, has assigned the following specifications of error:

1. The trial court erred in failing to direct a verdict in favor of Martin Exploration Corporation, since the plaintiff failed to show fault on the part of Martin;
2. The trial court erred in admitting hearsay testimony by the captain of the tug concerning a fall into the. same hole;
3. The trial court erroneously instructed the jury about (A) the business invitee doctrine, (B) the OSHA regulations, and (C) the applicability of La. C.C. art. 2317; and
4. The jury’s award was excessive in amounts awarded specifically for future pain and suffering, future medical expenses, and future loss of income were not supported by the evidence.

DEFENDANT’S ERROR NO. 1

The basis of defendant’s argument is that there was no evidence that defendant knew the loading ramp was to be used at night. Evidence was presented that the drilling rig was operating at night. It certainly does not take any imagination to realize that the vast petroleum exploration industry does not operate only 8 hours a day. In the search of oil and gas, every hour is valuable; every moment leased equipment stands idly by is expensive; thus exploration never ceases, it operates 24 hours a day. When equipment and supplies are needed it is unreasonable to believe that they would only be delivered during daylight hours. Defendant Martin knew or should have known that materials and supplies would be delivered during any hour of the day or night. Thus, we find no merit in defendant’s argument.

DEFENDANT’S ERROR NO. 2

Defendant argues that the trial judge was in error in allowing the plaintiff to testify that he was told by the tugboat captain that he had fallen in the hole twice. Defendant contends this is hearsay testimony, and it should have been excluded.

Plaintiff argues that the defendant withdrew his objection to the hearsay testimony if the plaintiff would not relate that the tugboat captain referred to the ramp as a “deathtrap.” We find in the record such a withdrawal of the objection by the defendant. The defendant, however, argues that this withdrawal of his objection was only as to the terminology “deathtrap”, rather than the objection to the hearsay testimony.

Without determining whether this testimony should have been excluded, we find no reversible error because we do not believe that this evidence as compared to the record in its totality had any substantial bearing on the decision reached by the jury.

DEFENDANT’S ERROR NO. 3

As to the assignment of error that the trial court erroneously instructed the jury as to the business invitee doctrine, defendant premises its argument on the contention that it had no reason to believe that the ramp would be used at night. We have previously under defendant’s error number one reasoned that Martin either knew or should have known that the ramp would be used at night, thus we find no merit in this assignment of error.

The defendant .next argues that the trial judge should not have charged the jury that the OSHA standards applied to the obligations between the plaintiff and the defendant. It is argued that the OSHA regulations applied to obligations existing between an employer and an employee and that this situation does not exist in the present case. Be that as it may, this court in Greene v. Wright, 365 So.2d 551, 559 (La.App. 1st Cir. 1978) said: “ ‘While statutory regulations are not in and of themselves definitive of civil liability, they may be guidelines for the court in determining standards of negligence by which civil liability is determined.’ Smolinski v. Taulli, 276 So.2d 286, 289 (La.1973).” It is not the violation of the OSHA regulations, irrespective of whether they are applicable in this fact situation or not, that-is negligence per se, but rather that the OSHA regulations give some guidelines as to adequate illumination in certain work areas. Thus, we find no error on the part of the trial judge in so charging the jury.

Next, the defendant argues that the trial judge was in error in charging the jury pursuant to La.C.C. art. 2317 to the effect that a party is responsible for an object in his control or custody. We do not necessarily agree that the loading ramp fits within the situation as enunciated by Loescher v. Parr, 324 So.2d 441 (La.1975), nor that the trial judge was without error in charging the jury as such. However, be that as it may, we do not find any error as such to be cause for reversal because immediately after charging the jury the trial judge said, to wit:

“In summary, for the plaintiff to have proved his case you must find that he has proven by a preponderance of the evidence, first, that the conduct of the defendants was below the standard of care — I am sorry. First, that the conduct of the defendant was below the standard of care required for it. Second, that the substandard conduct caused the injury claimed and the defendant should have reasonable foreseen that as a result of its conduct some such injury as the plaintiff suffered would occur. You must also find that it failed to exercise reasonable care to avoid the injury. Third, that the standard of care which the defendant owes was imposed on it to protect the defendant [sic] against the claimed injuries.”

Any error which existed in the charge to the jury was thus overcome by the subsequent general charge and certainly, the jury had more than enough justification under the facts presented to find defendant negligent for failing to have the loading ramp lighted.

Lastly, the defendant contends that there was a defective explanation of the preponderance of evidence and proximate cause which rendered the charge erroneous. We have reviewed this record thoroughly, and without ruling as to whether the charge was correct or not, we find that there was no error on the part of the trial court jury as to its finding of liability.

DEFENDANT’S ERROR NO. 4

Finally, defendant contends that the award of $84,000.00 in damages was excessive. The jury itemized its award as follows, to wit:

Physical injury suffered_$20,000.00
Pain and suffering, both physical and mental _$10,000.00
Permanent disability _$ 5,000.00
Loss of earnings_$12,000.00
Loss of ability to earn in the future $30,000.00
Future medical expenses_$ 4,000.00
Past medical expenses _$ 3,000.00

Plaintiff suffered a fracture of his foot requiring an open reduction. He was hospitalized, had surgery to insert pins, and surgery again when the pins were removed. He has a 25% permanent disability of his foot, and there is a 50-50 chance that he may develop traumatic arthritis which will require further surgery. Though no specific time periods are found in the record other than plaintiff’s return to work some 31 months after the accident, we are convinced that there was no abuse of discretion on the part of the trial jury for the award made.

In appealing, plaintiff, though he does not assign any specifications of error as required by Rule IX-A, Uniform Rules-Courts of Appeal, argues that (1) a judgment against an absent defendant must be annulled, (2) admitting statements suggesting that a settlement has been reached with absent parties is prejudicial error, and (3) as Martin was not entitled to either indemnity or contribution, the full amount of the jury verdict must be reinstated.

In essence, plaintiff is arguing that it was error for any evidence to be presented to the jury or any argument made to show that a settlement had taken place between plaintiff and any of the defendants who had been dismissed from the suit. Further, plaintiff is arguing that because of the error made by the trial judge, the jury reduced the award that it would have made to plaintiff, and in turn, the trial judge erred in reducing the award by one half.

We agree with the plaintiff that it was error for any mention of a settlement with any defendants to be made to the jury. Broussard v. State Farm Mutual Automobile Ins. Co., 188 So.2d 111 (La.App. 3rd Cir. 1966) writ refused 249 La. 713, 190 So.2d 233 (1966). However, based on the facts as found in this record, we independently find that Soloco was negligent in the installation of the ramp by not including lighting for nighttime use. Just as we earlier found it reasonable that Martin should have foreseen nighttime use of the ramp, so should have Soloco. Additionally, we find the negligence of Soloco to be a proximate cause of the accident. We are not convinced that the jury reduced the award in favor of the plaintiff.

Plaintiff argues that the jury rendered a judgment against Soloco, an absent defendant. This is incorrect. A finding of negligence on the part of Soloco and that this negligence was a proximate cause of the accident is not the same as a judgment against Soloco. We find no judgment against Soloco in the record of this proceeding. The cases cited by plaintiff in support of his argument are inapposite.

We also disagree with plaintiff that the trial judge erred in reducing the jury award. A compromise and discharge of one of two joint tort-feasors will restrict the claimant’s recovery against the other tort-feasor to one half. Harvey v. Travelers Ins. Co., 163 So.2d 915 (La.App. 3rd Cir. 1964).

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at defendant-appellant’s costs.

AFFIRMED.


author: BAILES, Judge. ELLIS, Judge,

text:
    Dominic J. GRAPHIA v. SHERIFF’S PENSION & RELIEF FUND, etc.
    No. 12598.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Concurring Opinion May 17, 1979.
    Rehearing Denied May 29, 1979.
    John W. Swanner, Baton Rouge, of counsel for plaintiff-appellee Dominic J. Grap-hia.
    Wallace A. Hunter, Baton Rouge, of counsel for defendant-appellant Sheriffs’ Pension and Relief Fund.
    William T. Reeves, Jr., Asst. Atty. Gen., Baton Rouge, of counsel for defendant-ap-pellee State Police Retirement System.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   BAILES, Judge.

The appellant, Sheriffs Pension and Relief Fund, appeals the judgment of the trial court which made peremptory the alternative writ of mandamus issued on the petition of plaintiff, Dominic J. Graphia.

The other defendant, State Police Retirement System, did not appeal the judgment of the trial court which ordered it to allow Dominic J. Graphia to repay to the State Police Retirement System the sum which he drew in 1951, plus appropriate interest compounded annually and to transfer this repayment together with all those contributions made to the State Police Retirement System by the employer of plaintiff, plus appropriate interest compounded annually on this latter sum. This judgment is definitive and executory. Consequently, the State Police Retirement System is not a party to this appeal. Even so, the State Police Retirement System represented by the Attorney General filed a brief and designated itself a “defendant-appellee.”

Plaintiff, formerly employed by the State Police, was a member of the State Police Retirement System from December, 1948, until March, 1951, a period of approximately 28 months. In May, 1951, he withdrew the funds he had contributed to this retirement system. In 1961, he entered the employ of the East Baton Rouge Parish Sheriffs Office and has since that date paid into that retirement system all sums which he was obligated to pay.

Contending that he had a statutory right to repay to the State Police Retirement System the funds, together with appropriate interest, which he had withdrawn in May, 1951, and to have these sums transferred to the Sheriffs Pension and Relief Funds, plaintiff sought and obtained an alternative writ of mandamus from the trial court granting him the relief he was seeking.

On finding the trial court erred in making peremptory the alternative writ of mandamus, we reverse.

The only portion of the judgment of the trial court which affects the appellant is the following portion of its judgment, viz:

“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Sheriffs Pension and Relief Fund, through Henry Reid, President of its Board of Trustees, accept the above mentioned sum on behalf of the Sheriffs Pension and Relief Fund and credit to Dominic J. Graphia those years of service he had under the State Police Retirement system.”

It is clear the State Police Retirement System was ordered to allow plaintiff to repay the sum which he had withdrawn in 1951, plus appropriate interest compounded annually. Further, this repayment together with the State Police system’s employer contribution, plus appropriate interest compounded annually, was to be paid to the Sheriffs Pension and Relief Fund. Additionally, it is seen that the judgment ordered the Sheriffs Pension and Relief Fund to accept the said sums from the State Police Retirement System and to credit the plaintiff with those years of service under the State Police Retirement System.

Even though the State Police Retirement System did not appeal the erroneous and adverse judgment that portion of the judgment which orders the State Police Retirement System to transfer to the Sheriffs Pension and Relief Fund cannot be performed by the State Police Retirement System.

Act 548 of 1975 amended and reenacted R.S. 42:697. Paragraph C of that section provided:

“The System from which the member transfers shall transfer to the system to which he transfers all employee contributions, employer contributions, or other funds, which the employee or employer has contributed or which actuarially figuring stands to or for the credit of the transferring member.”

These provisions of paragraph C endured for only a short time. Act 416 of 1976 amended and reenacted R.S. 42:697 to its present context. Paragraph C now provides:

“Each of the retirement systems shall keep and retain complete, permanent records on each member, and also shall retain and maintain all contributions and liabilities for service performed by the member in that retirement system.”

Thus, it is clear there is no statutory authority for appellant, Sheriffs Pension and Relief Fund, to accept these funds from the State Police Retirement System and that portion of the judgment is not enforei-ble.

Accordingly, for the foregoing reasons, as it affects the appellant, the judgment of the trial court making peremptory the writ of mandamus is reversed and annulled. All costs of this appeal to be paid by plaintiff.

REVERSED.

ELLIS, Judge,

concurring:

For a period of twenty-eight months, from December 1, 1948 until March 31, 1951, plaintiff, Dominic J. Graphia was a member of the Louisiana State Police, and made regular contributions to the State Police Retirement Fund. After resigning from the State Police, he withdrew his contributions from the retirement fund on May 4, 1951.

On October 6, 1962, plaintiff became a deputy sheriff in East Baton Rouge Parish, and since that time, has been a member of and made regular contributions to the Sheriffs’ Pension and Relief Fund.

In 1972, the Legislature adopted R.S. 42:697, which reads, in part, as follows:

The following provisions shall apply to transfers between state, municipal or parochial retirement systems:
A. A member of any state, municipal or parochial retirement system shall have the option of transferring retirement service credit to any other state, municipal or parochial retirement system for which he meets eligibility requirements for membership, upon approval of both boards of trustees to such transfer and in accordance with the provisions of this section, provided that transfers under the provisions of this section shall involve service credit only.
B. The service credit transferred under the provisions of this section together with all future service credit earned by the member shall be used as creditable service for regular retirement, disability retirement and survivor’s benefits for eligibility in all systems.
C. The board of trustees of the retirement system making the transfer shall certify to the board of trustees of the retirement system accepting the transfer that it will pay its proportionate share of any future service or regular retirement, disability retirement or survivor’s benefits earned by the transferring member.
D.Each of the retirement systems shall retain and maintain all contributions and liabilities for service performed by the transferring member while in that retirement system. The retirement system making the transfer shall issue a statement of service listing the transferred member’s creditable service to the retirement system accepting the transfer. The Legislature also in 1972 passed R.S.

42:697.2 which provided:

§ 697.2. Reestablishment and transfer of credit cancelled by refund
A member of any state, parochial or municipal retirement system having two years’ credit in said system shall have the right to repay a refund from any other state, parochial or municipal retirement system. Each board of trustees shall have the right to negotiate the manner in which repayment shall be made, the amount of interest, if any, to be paid, and the method by which the refunded service shall be reestablished and transferred.

The above provisions would permit a member of a state retirement system who had withdrawn from another state retirement system to repay to the latter system the amount withdrawn, plus interest as agreed, and thereby reestablish his standing with that system. He could then have this service credit transferred to his own system, where it would be used, in conjunction with other service credit earned, in computing the benefits to which the member would be entitled upon retirement.

On March 3, 1975, plaintiff wrote to the Sheriffs’ Fund requesting that his service with the State Police be transferred to the Sheriffs’ Fund. On April 8, 1975, the Sheriffs’ Fund replied that it would accept a transfer of his service with the State Police, with the following proviso:

However, in no way, will the Sheriffs Pension & Relief Fund pay for any time other than eligible time in our Fund. Any benefits for which you may be eligible as a participant in the State Police pension plan will be paid by that plan.

Plaintiff testified that he wrote the State Police Fund about making the repayment but did not make the repayment or a tender thereof. No further action was taken by any of the parties relative to the request for transfer.

In 1975, the Legislature amended R.S. 42:697 to read as follows:

A. Any member of any state, municipal, or parochial public retirement system shall have the option of transferring to any other state, municipal, or parochial public retirement system for which his employment makes him eligible for membership, upon approval of both boards of trustees.
B. In addition to credit for service which the law governing the system to which he transfers provides that he shall be entitled to receive in the system to which he transfers, the transferring member shall receive credit in the system to which he transfers for all service rendered by him, whether regular service, prior service, military service, or other service, for which he had credit in the system from which he transferred. He shall receive this credit notwithstanding that under the law governing the system to which he transfers he is ineligible to receive credit for any or all of the service rendered, except as provided in Section E below.
C. The system from which the member transfers shall transfer to the system to which he transfers all employee contributions, employer contributions, or other funds, which the employee or employer has contributed or which actuarially figuring stands to or for the credit of the transferring member.
D. After the date on which the transfer is completed the system from which the member transfers shall have no liability whatsoever with respect to the transferring member, and the system to which he transfers shall assume all liability with respect to him.
E. A transferred member must comply with the requirements of the system which has the highest age and years of service requirements to be eligible for a retirement benefit whether these requirements be those of the system from which he transferred or those of the system or systems to which he transferred. If employee or employer contributions being transferred are less than the contributions that would have been payable had the same earnings occurred as a member of the new system, the member must pay the difference plus five percent interest per annum.
In addition, each board of trustees shall adopt such rules and regulations, not in conflict herewith, as are necessary to carry out the provisions and intent of this Section and, also, to prevent any duplication of retirement credit for any service.

The effect of the above amendment was to provide not only for the transfer of service credit, but also for the transfer of the contributions and other funds standing to the credit of the member, from the system from which the member is transferring to the system to which the transfer is to be made.

On November 17, 1976, while the 1975 amendment was still in effect, plaintiff obtained the following certificate:

TO WHOM IT MAY CONCERN:
This will certify that Captain D. J. Grap-hia, who is presently employed with the East Baton Rouge Parish Sheriff’s Office and a member of the Sheriffs Pension & Relief Fund, appeared in this office this date and presented his request that he be allowed to repay a refund received from the Louisiana State Police Retirement System to the Louisiana State Police Retirement System for two years, four months served with the Louisiana State Police and transfer his service to the Sheriffs Pension & Relief Fund. He wishes to exercise his right to do this under R.S. 42:697.2 prior to the effective date of Act 416 of 1976 on January 1, 1977. He stated that he is willing to purchase this time in our System by paying 6% of his present salary for each month purchased.
We have advised him that his request will be presented to the members of the Board of Trustees, Sheriffs Pension & Relief Fund, immediately; and he will be notified of their decision concerning this request as soon as possible.

Apparently, plaintiff never attempted to make any payment of the refund to the State Police Fund either before or after November 17, 1976.

The Sheriffs’ Fund refused the above request, apparently based on its opinion that the transfers contemplated by R.S. 42:697 were not mandatory, but could be accomplished only with the consent of the retirement systems involved.

In the meanwhile, the legislature adopted Act 416 of 1976, by which R.S. 42:697 was amended to read in part as follows:

A. A contributing member of any state, municipal, or parochial retirement system who has been a member of such system for at least three years, and who has membership service credit in any other state, municipal, or parochial retirement system of at least three years, shall have the option of combining all service for which he has credit in every such retirement system in order that eligibility for regular retirement, disability retirement, and survivor’s benefits, may be acquired, subject to the limitations of this Section.
B. To exercise such option, a member, within one year, shall make application to the system in which he is applying for membership. The application shall contain the name of all other retirement systems in which he claims membership service credit and any other necessary information. When the system receives the application it shall forward a copy thereof to each other retirement system in which the member claims credit. Each such application shall contain such information as is mutually agreed upon by the retirement systems involved. Each retirement system receiving the application shall certify to each other retirement system in which the member claims membership service credit the official membership service credit in that retirement system, including specific dates of such service.
C.Each of the retirement systems shall keep and retain complete, permanent records on each member, and also shall retain and maintain all contributions and liabilities for service performed by the member in that retirement system. By the same act, R.S. 42:697.2 was amended to read:
For purposes of R.S. 42:697, a member of any state, parochial, or municipal retirement system having credit for at least three years in any such system may repay a refund, plus five percent compounded interest thereon from date of refund until paid, to any other state, parochial, or municipal retirement system involving at least three years of credited service, in order to reestablish such credited service.

This suit, for a writ of mandamus, was filed on August 30, 1978, by plaintiff against the Sheriffs’ Fund and the State Police Fund, asking that the State Police Fund be ordered to accept plaintiff’s repayment of his refund, plus appropriate interest; that the State Police Fund be ordered to transfer such funds, plus other funds standing to his credit, to the Sheriffs’ Fund; and that the Sheriffs’ Fund be ordered to receive the said funds and to credit plaintiff with his years of service with the State Police.

After trial on the merits, judgment was rendered in favor of plaintiff as prayed for, and the Sheriffs’ Fund has appealed.

I think it apparent that, under the 1975 Act, plaintiff was entitled to the transfer of both service credit and funds. However, before the Sheriffs’ Fund could accept the transfer, plaintiff first had to reestablish his standing with the State Police Fund. This he failed to do. The record is devoid of any evidence that plaintiff ever tendered his repayment to that system or that the State Police Fund ever refused such a tender. Under those circumstances, there was no service credit or fund available for transfer on November 17, 1976, and the Sheriffs’ Fund did not act improperly in refusing plaintiff’s request of November 17, 1976. This suit, which was filed after the effective date of the 1976 Act, cannot breathe life into plaintiff’s invalid request for transfer.

I therefore concur.


author: BOUTALL, Judge.

text:
    Dominic ALAIMO v. Elizabeth V. HEPINSTALL.
    No. 10398.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 23, 1979.
    Kehl & Pickering, Claudia Sue Dunn, New Orleans, for Dominic Alaimo, plaintiff-appellee.
    Pamela L. Jackson, New Orleans, for Elizabeth Hepinstall, defendant-appellant.
    Before BOUTALL, SCHOTT and BEER, JJ.
   BOUTALL, Judge.

Dominic Alaimo, appellee in this action, brought a suit to evict Elizabeth Hepinstall from the premises which she was occupying as lessee. An answer was not timely filed and judgment was rendered in favor of Alaimo by default. The answer was filed the next day and alleged that defendant had received no notice to vacate the premises, nor of the hearing. Defendant then took a suspensive appeal from the default judgment. We note this court’s jurisdiction over this case citing Herman Investments, Inc. v. Lighthouse Club, Inc., 367 So.2d 901 (La.App. 4th Cir. 1979).

Appellee has filed a motion to dismiss the appeal on two grounds: First, that the record was insufficient to resolve the issues presented by the appeal through the fault of appellant; and second, that the appeal was improperly granted in that an affirmative defense must be raised in order to suspend execution of an eviction judgment under Code of Civil Procedure Article 4735.

On the first issue, appellee points out that the appellate record contains no transcript of testimony nor a narrative of facts. He urges dismissal under the principles of Ernest Joubert Company v. Tatum, 332 So.2d 553 (La.App. 4th Cir. 1976). However, it should be noted that that case was not on motion to dismiss but a judgment on the merits of the appeal.

In this appeal we are not yet made aware of all of the issues on the appeal itself. The sufficiency of the record to support appellant’s contention in this case (especially considering that it has been transferred from the Civil District Court for the Parish of Orleans where it was scheduled for a trial de novo) is a matter to be considered on the merits of the appeal as in Joubert, not on the motion to dismiss.

The second contention raised by the motion deals with the right to appeal and with this court’s jurisdiction. An appeal can be dismissed at any time for lack of right to appeal or of jurisdiction of the appellate court. Code of Civil Procedure Article 2162. We find that a suspensive appeal does not lie in this case since no affirmative defense entitling the appellant to retain possession of the premises was timely pleaded. C.C.P. Article 4735. The appeal will, however, be entertained as a devolutive appeal. Krieg v. Sciortino, 341 So.2d 575 (La.App. 4th Cir. 1977); Murphy Oil Corp. v. Gonzales, 316 So.2d 175 (La. App. 4th Cir. 1975).

APPEAL DISMISSED AS SUSPEN-SIVE, BUT MAINTAINED AS DEVOLU-TIVE.


author: GARRISON, Judge.

text:
    Jeannette Mead MOLERO v. Leland J. PEREZ.
    No. 9864.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 1979.

      Tonry, Mumphrey, D’Antonio & McDou-gall, Wayne J. McDougall, Chalmette, Bruce G. Reed, New Orleans, for plaintiff-appellant.
    Anthony A. Fernandez, Jr., Chalmette, for defendant-appellee.
    Before SAMUEL, BEER, and GARRISON, JJ.
   GARRISON, Judge.

This appeal deals with certain procedural questions regarding the judicial partition of community property. The parties to this proceeding were divorced, and the wife subsequently filed a petition to partition the community property, alleged to consist solely of a house and the lot on which it stands. The husband, although duly cited and served, filed no responsive pleadings of any kind and allowed the wife to obtain a default judgment. The judgment decreed the wife to be owner of an undivided one-half interest in the property, ordered the property to be sold at public auction, and appointed a notary public to effect partition of the proceeds. The judgment also ordered the property to be sold subject to a first mortgage in favor of Dryades Savings & Loan Association.

The husband was high bidder at the public auction and the property was sold to him. Prior to paying the cash sale price to the sheriff, however, the husband filed two motions setting rules to show cause. He sought court orders allowing certain credits against the amount due the wife in the partition and allowing him to pay the sheriff only one-half the amount bid in the auction (since he was already owner of a one-half interest in the property), and also to receive credit for the present principal balance of the mortgage. The district court rendered judgment allowing the husband credit for “payments made to reduce principal on home mortgage from date of judicial demand,” payments for house painting and sewer installation, allowed him credit for the principal balance on the mortgage as of March 1, 1978, and also allowed him to pay only one-half of the bid price. Ms. Molero, the wife, has appealed suspensively from this judgment.

Plaintiff-appellant has raised a number of issues on appeal. These issues may be simplified, however, by combining them into one broad restatement: whether a defendant in a partition proceeding may raise the issue of his entitlement to credits by rule to show cause, when he has failed to respond to the petition for partition and has allowed the plaintiff to obtain a default judgment ordering the partition. (This statement encompasses the major thrust of the issues raised by appellant; most of them are concerned with admissibility of evidence introduced by the husband, if he were to be allowed to raise the issue of credits under the circumstances here.)

We believe this situation is clearly covered by an earlier ruling of this court, in the case of deMonte v. McManus, 294 So.2d 605 (La.App. 4th Cir. 1974). In that case, the wife filed a petition for settlement of the community, and the husband filed an answer of general denial, praying only that the wife’s petition be dismissed. The district court rendered judgment ordering partition, but allowing the husband credit for mortgage payments, tax payments and repairs. This court ruled on appeal that the evidence offered by the husband “would actually seem to be in support of an incidental demand, that is the establishment of extraneous debts due him over and above his one-half interest.” We concluded,

“In either event, it is required that the debts of the husband be pleaded either as an affirmative defense or as an incidental demand, and his failure to do so, when objection is timely made, restricts him only to the relief requested in his answer, that is, dismissal of the petition.” 294 So.2d at 608.

It is clear from the record here that the wife’s attorney did make timely objection to proof of any debts due the husband. Accordingly, that testimony was inadmissible, and therefore that portion of the judgment awarding the husband credit for mortgage payments between the date of judicial separation and date of judicial sale and for house painting and sewerage installation is null.

Plaintiff-appellant has not complained of the second portion of the judgment, in which the husband was allowed to pay only one-half of the bid price to the sheriff, and to receive credit for the principal balance of the home mortgage as of March 1, 1978. Therefore, we affirm that portion of the judgment.

Accordingly, the judgment appealed from is amended to delete the credit allowed the husband for mortgage payments and for house painting and sewerage installation made between the date of the judgment of separation and the date of the judicial sale, and affirmed in all other respects. Appel-lee is to pay all costs of this appeal.

AMENDED AND AFFIRMED.

      . The basis for this conclusion is that a partition proceeding is subject to the rules regulating ordinary proceedings (La.Code Civ.Pro.Art. 4603).

      . Defendant-appellee attempts to distinguish this case from deMonte, citing Cookmeyer v. Cookmeyer, 354 So.2d 686 (La.App. 4th Cir. 1978). The Cookmeyer case itself, however, notes the difference in factual situations: In deMonte, a petition for settlement of the community had been filed (making the proceeding subject to rules governing ordinary proceedings), while in Cookmeyer, no such petition was filed; the wife had simply filed a rule to show cause why proceeds from the sale of some community property should not be divided between her and her husband. In deMonte the proceeding was an ordinary proceeding, requiring an answer, while in Cookmeyer it was a summary proceeding from the outset, “which obliges one only to show, and not to plead, cause.” 354 So.2d at 694. The facts before us clearly fall under deMonte rather than under Cookmeyer.


author: PRICE, Judge.

text:
    Marjorie Fry DAVIS, Plaintiff-Appellant, v. John F. TILLMAN, Defendant-Appellee.
    No. 13838.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1979.

      LeRoy Smith, Jr., Tallulah, for plaintiff-appellant.
    Thompson L. Clarke, St. Joseph, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

This appeal was taken by. the plaintiff-landowner from the judgment of the trial court holding that the defendant-contractor was not liable in damages for his failure to complete a land clearing contract because of excessive rainfall.

The factual background giving rise to this litigation is summarized by the trial judge in his reasons for judgment as follows:

Marjorie Fry Davis, owner of considerable woodland in Concordia Parish, through her attorney in fact, Walter Davis, III, contracted with John F. Tillman to clear for cultivation 640 acres of land at the price of $123.00 per acre. The date of the contract was April 22, 1975 and provided for the completion before December 31, 1975. By the terms of the contract Tillman was to receive for his benefit and use any merchantable timber removed from the land, unless he failed to perform the contract, in which event he was to indemnify owner the amount for which the timber was sold, but in no case for an amount less than $3.00 per cord for pulpwood and $35.00 per thousand feet for logs. The contract also provided for a deposit in escrow of $25,-000.00 by Tillman, which he agreed to pay owner in the event of default or non-performance. By the provisions of an escrow agreement executed simultaneously with the contract, the owner was authorized to certify to the escrow agent (the Bank) after December 31, 1975 that the contract had not been satisfactorily completed, whereupon the Bank was authorized to pay the deposit to the owner.

After the expiration date of the contract, December 31, 1975, plaintiff notified the bank of defendant’s default in performance of his obligation under the agreement, and the bank paid plaintiff the $25,000 deposited in escrow. Plaintiff then filed this suit against defendant seeking to recover a total amount of $204,631.90 for the value of timber removed, damages to the surface drainage of the land, and for inconvenience resulting from the delay caused by defendant’s failure to clear the land within the term of the contract.

In answer to the suit defendant alleged his failure to complete the work was caused by the unusual and excessive rainfall on the subject land during 1975 which prevented the performance of certain phases of the clearing during most of the contract period, and that plaintiff refused his request for an extension of time based on these unexpected circumstances. Defendant also reconvened seeking payment for the amount of work performed in clearing a portion of the tract under the doctrine of quantum meruit and sought the return of the escrow deposit of $25,000 withdrawn by plaintiff from the Louisiana Central Bank under the contract provision for liquidated damages.

Pursuant to its finding that defendant’s failure to complete the work was due to a fortuitous event, the trial court rendered judgment rejecting all of plaintiff’s demands for damages other than for the sum of $19,459.29 for the stumpage value of timber and pulpwood removed and sold by defendant. The judgment awarded defendant the sum of $4,305 as payment for the partial clearing of seventy acres based on the court’s determination that defendant had performed fifty percent of the work on this number of acres. The court also ordered plaintiff to return the escrow deposit of $25,000 to Louisiana Central Bank in satisfaction of its judgment against defendant in the consolidated case.

Plaintiff assigns as error the trial court’s finding that defendant was relieved of performance by a fortuitous event and the failure of the trial court to award her the full price defendant received for the timber removed from the property.

In arriving at the conclusion that a fortuitous event prevented performance of the contract, the trial judge made the following pertinent findings of fact:

There is no dispute of the fact that all of the clearing was not completed within the time stipulated in the contract, and by the terms of the escrow agreement, the withdrawal of the $25,000.00 deposit by Davis was contractually permissible, except for unfairness and disregard of the weather factor and Tillman’s plea for an extension. However, defendant’s failure to completely fulfill the contract because of the continuous and constant wetness of the ground and inundation of the low areas resulting from the abnormal, frequent and excessive rainfall, rather than from his own performance or nonperformance, excuses him from penalty.
In other words, it was not defendant’s fault that the contract was not executed in its entirety. He had no alternative during the period of the contract, with the weather as it was, to carry out the object of the contract. It was absolutely beyond his power to fulfill his obligation to clear the land during the period of the contract.
The evidence establishes clearly and it is generally known that woodland can not be properly cleared with crawler tractors with blades when the ground is wet. Traction is reduced, the equipment bogs down, and the fallen timber and debris becomes buried in the mud, which creates a longlasting and expensive problem in cultivation.
* j{: * * *
The intervals between the frequent rains were too brief for the land to dry out and this made performance impossible, through no fault of the contractor. (Testimony of Tillman, Raibble and Maxwell). The partial clearing that was performed was located on higher ground, accomplished by moving from place to place.
The operations of the Chicago Mill & Lumber Company in its land clearing, as well as the Tensas Soil Conservation Service, suffered the same experience in the year 1975. Rain is foreseeable, but excessive rain to the extent of 21 inches above normal, with abnormal frequency (a rain every three days), does not seem reasonably foreseeable, and in this case, under this contract, falls in the category of fortuitous event.
* * * * * *
The abnormal rain created impossible conditions throughout the term of the contract for defendant to perform, and the excessiveness was so great and continuous it was not reasonably foreseeable and preventable. The contract was not merely more difficult, burdensome, or unprofitable, under the conditions existing, it was impossible. To require human prudence to anticipate such abnormality in weather would ignore experience. The only fault of defendant was his failure to have included in the contract provisions for extension, but to penalize him for this renders Civil Code Article 1933 meaningless.

The foregoing findings of fact by the trial judge are supported by the evidence and his conclusions are in accordance with the pertinent provisions of the Louisiana Civil Code. Article 1933 provides in pertinent part:

When the breach has been passive only, damages are due from the time that the debtor has been put in default, in the manner directed in this chapter.
The rules contained in this and the preceding articles, however, are subject to the following exceptions and modifications:
* * * * * *
2. Where, by a fortuitous event or irresistible force, the debtor is hindered from giving or doing what he has contracted to give or do or is from the same causes compelled to do what the contract bound him not to do, no damages can be recovered for the inexecution of the contract.
3. There are two exceptions to the last rule: first, when the party in default has by his contract expressly or impliedly undertaken the risk of the fortuitous event, or of the irresistible force; secondly, if the fortuitous event, or case of force, was preceded by some fault of the debtor, without which the loss would not have happened.

Article 3556(15) defines a fortuitous event as “that which happens by a cause which we can not resist.”

Article 2120 further provides:

The penalty being stipulated merely to enforce the performance of the principal obligation, it is not incurred, although the principal obligation be not performed, if there be a lawful excuse for its non-performance, such as inevitable accident, or irresistible force.

Excessive and unprecedented rainfall has been considered to be a fortuitous event to excuse the non-performance of a contract. Farnsworth v. Sewerage & Water Board of New Orleans, 173 La. 1105, 139 So. 638 (1932).

Plaintiff contends the trial court was in error in concluding defendant was prevented from performance by a fortuitous event for two principal reasons: (1) that defendant should have foreseen the probability of rainfall limiting the number of working days and (2) defendant compounded the problem by stopping up the drainage on the tract in his cutting of timber to which he gave priority.

The extent and frequency of rainfall as shown by the evidence was not reasonably foreseeable. The records of the Louisiana State University Experiment Station at St. Joseph located only eighteen miles from the property showed a total rainfall of 77.31 inches during 1975. The evidence shows this to be approximately 21 inches above the normal amount to be expected in this area, and that it was particularly excessive from April through October. This margin over normal rainfall when related to the low elevation of plaintiff’s land supports the conclusion of the trial judge that performance of the contract by defendant was made impossible by a fortuitous event which was unforeseeable and was not a risk assumed by him under the contract.

The evidence on whether defendant damaged the natural drainage of the tract in cutting timber is conflicting. There is substantial evidence that the minimal drainage servicing the tract had been obstructed by prior timber cutting operations by other persons. The trial court did not find as a fact that defendant caused an impairment of the natural drainage which was the underlying cause of the continued wet and boggy condition of the low areas during the period of the contract.

These findings by the trial court are not clearly wrong and therefore should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The remaining error complained of by plaintiff is the lower court’s award of $3 per cord for the pulpwood removed and $35 per thousand feet for stumpage value of saw logs removed instead of the actual price received by defendant in the sale of these products.

In the absence of sufficient evidence to show the actual cost of cutting, hauling, and other related expenses in marketing the timber removed from the tract, we cannot say the trial court was in error in using as a basis for its award the minimum price provided by the contract for timber removed in the event of a default by defendant.

No manifest error having been shown in the findings of the trial court as set forth in its thorough written opinion in this matter, for the reasons assigned herein, the judgment is affirmed at appellant’s cost.

      . This suit was consolidated with Louisiana Central Bank v. John F. Tillman in which judgment was rendered awarding the plaintiff-bank a $25,000 judgment against Tillman for his failure to pay the note in this amount given to secure funds placed in escrow on his behalf by the bank in connection with the subject clearing contract. No appeal was taken from that judgment.


author: MARVIN, Judge.

text:
    PIGGLY WIGGLY OF SPRINGHILL, INC., Plaintiff-Appellant, v. Joseph GERACE, Administrator, Division of Employment Security, et al., Defendants-Appellees.
    No. 13843.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1979.
    Nelson & Achee, Ltd. by Frank M. Dodson, and Bobby S. Gilliam, Shreveport, for plaintiff-appellant.
    Marion Weimer, Baton Rouge, for defendants-appellees.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

The plaintiff employer appeals from a judgment affirming the defendant agency’s ruling that plaintiff’s employees who once were participants in a labor dispute (a strike) were entitled to unemployment compensation benefits after they unconditionally offered to return to work when the labor dispute was no longer in active progress. R.S. 23:1601. We affirm.

Plaintiff, operator of a grocery store in Springhill, was negotiating for a new collective bargaining agreement with the union as bargaining representative of plaintiff’s employees. Before any agreement was formally executed some of plaintiff’s employees filed with the National Labor Relations Board a petition to hold an election to de-certify the union as bargaining agent. With possible decertification pending, plaintiff declined to execute a new agreement. About 30 employees then went on strike between August 3 and October 26, 1976. Plaintiff notified its striking employees that replacements would be hired in two weeks. The striking employees did not respond to plaintiff’s notice and plaintiff hired some replacement employees.

On October 15, 1976, the NLRB held the election which resulted in decertification of the union. On October 21, the union representative formally sought to have the NLRB set aside the election results. The union representative, on behalf of all striking employees, informed the plaintiff, verbally on October 22 and in writing on October 26, that the striking employees were unconditionally offering to return to work. On November 24, 1976, plaintiff received formal notice from NLRB that the union had withdrawn its objections to the election and that the final result was decertification of the union as bargaining representative.

In the meantime, several of the striking employees returned to work. Twenty-one of plaintiff’s employees filed for unemployment compensation benefits with the defendant agency. The agency found that these applicants were disqualified for benefits under R.S. 23:1601(4) during the time the labor dispute in which they either were interested or were participating was in active progress. The agency further found that the labor dispute ceased to be in active progress on November 24, 1976, and held that the applicants were qualified for UC benefits after that date.

The plaintiff employer contends that subsection one and subsection four disqualify the applicants for UC benefits because:

—the employees involved in the strike left their employment without good cause (1601(1)), and

—that the labor dispute in which these applicants were either participating or were interested, continued in active progress because of a boycott of plaintiff’s grocery store by union employees at the International Paper Company mill in Springhill, the area’s then largest employer (1601(4)).

The National Labor Relations Act, 29 U.S.C.A. 152(3), is clear in its provision that an employee whose work has ceased as a consequence of a labor dispute continues to be an employee if he has not obtained a regular and substantially equivalent employment. N. L. R. B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967). See also Elmer Candy Corp. v. Administrator of Employ. Sec., 286 So.2d 423 (La.App. 1st Cir. 1973), which held that the replacement of a striking employee does not terminate the employer-employee relationship.

Our interpretation of 1601(1) is that the word left is intended to cover those situations where an employee quits, or voluntarily leaves or resigns, his employment. Then the question as to eligibility for UC benefits concerns whether the employee’s leaving his employment was with or without good cause. We have found no Louisiana case where the 1601(1) good cause issue has been discussed or applied when the circumstances concerned a strike or labor dispute. Under 1601(4) an individual whose unemployment is caused by a labor dispute in active progress remains an employee under federal law and he may be eligible for UC benefits if he shows to the satisfaction of the defendant agency that he is not participating in or interested in the labor dispute. In any event, 1601(4) is the special subsection of 1601 which is to be particularly applied in such cases.

Thus the critical issues:

Was there a labor dispute (?) in active progress (?) after notice to the employer that the union was decertified as the bargaining representative and after the union employees unconditionally offered to return to work?

If so, were the applicants either interested in or participating in the labor dispute?

In Elmer Candy, supra, the employees began picketing in May but ceased picketing on August 30. Finding these employees disqualified for UC benefits because there was the court held the employees failed to show they were not “interested in” the labor dispute as required by 1601(4) to become eligible for benefits. This finding strongly implies that the Elmer Candy labor dispute continued in “active progress”. The term “interested in” a labor dispute perhaps is much broader than the term “participating in” a labor dispute for a 1601(4) disqualification. Senegal v. Lake Charles Stevedores, Inc., 250 La. 623, 197 So.2d 648 (1967). But see National Gypsum Co. v. Administrator, Dept. of Emp. S., 313 So.2d 230 (La.1975), discussed infra.

“. . . no evidence that [they] did anything ... to disassociate themselves from a strike which they originated . . . They did not resign from the Union and did not apply for reinstatement. As long as they were members of the Union, they would have either been benefited or injured by any subsequent contract the Union might make with the [employer] * * * ” (286 So.2d at p. 428),

But unlike Elmer Candy, plaintiff’s employees did apply for reinstatement (to return to work), and once the union was de-certified as bargaining representative, the union would not have been able to negotiate for or to sign a labor contract with the employer. Plaintiff suggests that its business had been affected because posters and perhaps other notices about the strike were displayed and circulated among the employees of the International Paper Mill in Springhill, who comprise 75 percent of plaintiff’s customers. The agency, however, found that the claimants were not promoting or participating in a boycott to any extent that could be construed as a continuation of a labor dispute beyond November 24 and that the active progress of the labor dispute ceased on that date. These findings are supported by the record particularly because on or before that date the union was in fact decertified, pickets had been withdrawn, and the claimants had unconditionally offered to return to work. We think it is also significant that the claimants did not receive strike benefits from the union after they unconditionally offered to return to work and that some of the striking employees were allowed to return to work.

In National Gypsum Co. v. Administrator, Dept. of Emp. S., supra, the Supreme Court recognized its earlier Senegal holding “that the purpose of the labor dispute disqualification was not to subsidize a strike,” and said that

“• • • [W]e think the more reasonable interpretation of the disqualification to be that unemployment due to ‘a labor dispute in active progress’ includes only unemployment resulting from labor disputes in which the employee himself actively engages by refusing to work. We are reinforced in this interpretation by the further provision of the labor-dispute disqualification to the effect that an employee of a separate department shall not be deemed disqualified if he is unemployed because of a labor dispute within another department of the same premises.
“In our opinion, the administrative board therefore correctly explained the purpose of the labor-dispute disqualification and why it is not applicable to the present claimants, here unable to work through no fault of their own: ‘The Unemployment Compensation Act is not intended to encourage idleness or labor disputes nor to force an employer to contribute benefits to help finance his employees’ disputes with him. Only an employee prevented from working through no act of his own should be entitled to unemployment benefits.’
“We thus regard the disqualification provision of La.R.S. 23:1601(4) as an expression of the public policy that the State remain neutral in labor disputes. The award or denial of unemployment compensation should not be available as a weapon to either labor or management, as they seek to resolve their differences.
“When employees are on strike, we have held that, by reason of the statutory policy, they cannot receive unemployment benefits. Senegal v. Lake Charles Stevedores, Inc., 250 La. 623, 197 So.2d 648 (1967). We hold today that, for similar reasons, the act was not intended to enforce a lock-out by the employer by denying unemployment benefits to employees who are available for work, but who are denied it by their employer. To deny compensation under such circumstances would not only be to deny benefits to employees unemployed through no fault of their own, but would be to add a sanction not contemplated by law to conduct by the employer designed to withhold subsistence from his workers and their families in order to force them to accept the employer’s terms.
“We thus do not believe that a labor dispute is in active progress, insofar as disqualification for unemployment benefits is concerned, when the employees are exercising their legal right through peaceful negotiation to bargain for what they deem to be better working conditions.” 313 So.2d at 233

The strike at plaintiff’s store was called because plaintiff refused to continue bargaining or to execute a labor contract after the petition for a decertification election was filed with NLRB. Our view of a federal authorities is that certification of a bargaining representative, once made, is presumed to continue, and that a naked showing of the filing of a decertification petition is insufficient to relieve the employer of its obligation to continue bargaining, since the petition establishes nothing more than that it was signed by at least 30 percent of the employees. See Allied Industrial Workers v. NLRB, 155 U.S.App.D.C. 112, 476 F.2d 868 (1973); Retired Person’s Pharmacy v. NLRB, 519 F.2d 486 (2d Cir. 1975); N. L. R. B. v. Windham Community Memorial Hospital, 577 F.2d 805 (2d Cir. 1978). International Ladies’ Garment Workers’ Union v. N. L. R. B., 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961), where no certification had occurred, is not contrary.

Here a labor dispute (the strike) was in active progress with the claimants participating. The dispute and the claimants’ participation ceased when the claimants unconditionally offered to return to work at a time when the union had agreed that it was no longer serving or eligible to serve as the bargaining representative of the employees of the plaintiff-employer. As in the determination of interest, the determination as to when a labor dispute ceases is to be made by the facts and circumstances of each case. See Senegal, supra.

R.S. 23:1601(4) expressly provides that the disqualification of the claimant is “for any week” in which it is found that the unemployment is caused by a labor dispute in active progress. Conversely, even though once disqualified for this reason, the disqualification is not permanent or indefinite, as in the case of 1601(1) good cause disqualification. If the labor dispute is not yet in active progress, as in National Gypsum, or as here, if it ceases to be in active progress, and particularly where there is a finding that the claimant has ceased to be either participating or interested in the dispute and offers unconditionally to return to work, the disqualification “shall not apply,” according to 1601(4).

The agency findings are supported by sufficient evidence and we find no error of law. R.S. 23:1634. At appellant’s cost, judgment below is

AFFIRMED.

      . R.S. 23:1601(1) and (4), discussed herein, read as follows:
      “An individual shall be disqualified for benefits:
      “(1) If the administrator finds that [the individual] has left his employment without good cause connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances.
      * * * * sfs *
      “(4) For any week with respect to which the administrator finds that [the individual’s] unemployment is due to a labor dispute which is in active progress at the . establishment ... at which he is or was last employed; but such disqualification shall not apply if it is shown to the satisfaction of the administrator that [the individual] is not participating in or interested in the labor dispute which caused his unemployment . . ”

      . In other states where this argument has been made it has been answered as we answer here. See Annotation, “Construction and application of provisions of unemployment compensation or social security acts regarding disqualification for benefits because of labor disputes or strikes”, 28 A.L.R.2d 287, as supplemented, and particularly T. R. Miller MW Company v. Johns, 261 Ala. 615, 75 So.2d 675 (1954). The essence of these cases is that the good cause disqualification cannot be applied in true labor dispute disqualification cases because that would involve looking into the respective merits of the dispute. See further comment in footnote three.

      . If the 1601(1) issue of good cause for leaving employment is allowed to overlap into the labor dispute disqualification, state courts, applying unemployment compensation laws, would be required to look into the merits of the labor dispute to determine if the employer or the employee was justified in (had good cause for) their respective actions during the dispute. Then we would be wading in forbidden unfair-labor-practice waters which are exclusively under the NLRA.


author: HALL, Judge.

text:
    Mrs. Alice Cobb MATHEWS and Andrew J. Mathews, Plaintiffs-Appellants, v. ALLSTATE AUTOMOBILE INSURANCE COMPANY and Jay W. Lapeze, Defendants-Appellees-Appellants.
    No. 13852.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1979.
    Writ Refused June 15, 1979.

      Waddell & Kelly by Charles W. Kelly, IV, Shreveport, for plaintiffs-appellants.
    Nelson & Achee, Ltd. by Roland J. Achee, Shreveport, for defendants-appellees-appel-lants.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

Plaintiffs, Alice and Andrew Mathews, appeal from a judgment, rendered in accordance with an 11-1 jury verdict, rejecting their demands for damages for personal injuries sustained when Mrs. Mathews was struck by a car driven by Jay W. Lapeze and insured by Allstate Insurance Company, defendants. Defendants also appealed to protect their third party demand against Republic Underwriters Insurance Company, insurer of Andrew Mathews. Finding La-peze was not negligent, we affirm the judgment of the district court.

The evidence, consisting of the testimony of Mr. and Mrs. Mathews, defendant, two eyewitnesses, the investigating police officers, and an accident reconstruction expert, establishes the following facts. The accident occurred midway between the Cres-well Street and Highland Avenue intersections on Kings Highway, a busy, four-lane, east/west thoroughfare in Shreveport, at about 6:00 p. m. on October 31, 1975. Mr. and Mrs. Mathews had been to the Safeway Supermarket on the north side of the street to buy Halloween candy. Not finding what they wanted, they decided to go to Eckerd Drugs on the south side of the street. When they reached the north curb of Kings Highway they stopped, and not observing any traffic, began to cross the street in the middle of the block, not at a pedestrian crossing. Noting an oncoming car in the inside eastbound lane, Mr. Mathews hurried across in front of it while Mrs. Mathews stopped at the double yellow center lines. The car stopped and Mrs. Mathews proceeded to cross in front of the stopped car.

Defendant, who had been stopped at the Creswell intersection light beyond a curve, was approaching the site of the accident in the outside eastbound lane. As he came out of the curve he observed a line of stopped cars in the inside eastbound lane and moved his left foot over the brake pedal. His speed was established by the expert based upon approximately 30 feet of skid marks to have been between 24 and 27 miles per hour, which coincided with defendant’s testimony that he was traveling within the 35 miles per hour speed limit. Defendant, while passing the two or three stopped cars, saw Mrs. Mathews step into his lane from in front of a stopped car. He quickly applied his brakes, but could not stop in time to avoid hitting her.

The only contentions of negligence are that defendant failed to keep a proper lookout and failed to take precautionary or defensive measures in view of the stopped line of cars and in view of Mr. Mathews crossing, which plaintiffs allege defendant should have seen.

The stopped line of cars presented no warning of special hazards such as crossing pedestrians, because it was not unusual for cars to stop to make a left turn into the Safeway Supermarket. Defendant had his headlights on, was going approximately 10 miles per hour below the speed limit, and did move his left foot over the brake.

Mr. Mathews probably crossed before defendant was in a position to see him. Mr. Mathews said he saw an eastbound car which probably was defendant’s car about 200 feet away when he crossed. Witnesses describe the husband as “running” across the eastbound lanes. Mrs. Mathews waited a significant length of time, 10 seconds according to one witness, before following her husband across, indicating defendant was possibly still in the curve when Mr. Mathews crossed. Plaintiffs’ argument that defendant should have seen Mr. Mathews is not supported by the evidence.

It would have been difficult, if not impossible for defendant to see Mrs. Mathews in front of the stopped line of cars. She is 5'2" tall and was wearing a dark top. Indeed, defendant testified the first thing he saw was his headlights reflecting off Mrs. Mathews’ white pants as she stepped out from in front of the lead car into his lane. All of the evidence, including Mrs. Mathews’ own testimony, is that she suddenly walked out from in front of the stopped car into the outside eastbound lane. Defendant immediately applied his brakes, indicating he was alert, and almost stopped but could not avoid hitting her.

The evidence, even the testimony of plaintiffs, does not support a finding of negligence on the part of defendant.

The trial court’s instructions adequately instructed the jury on the principles of Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978). Baumgartner did not do away with the requirement of negligence on the part of a motorist in order to find liability. The defendant breached no duty of care owed to the plaintiff pedestrian, was not negligent and had no opportunity to avoid the accident after observing the pedestrian who suddenly appeared in his lane in the middle of the block. Therefore, he is not liable, as the jury correctly found.

The judgment appealed from is affirmed at appellants’ costs.

Affirmed.


text:
    Louise WILSON v. SCHWEGMANN’S BROTHERS GIANT SUPERMARKETS, INC.
    No. 10185.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 1979.
    Writ Granted June 15, 1979.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, Madison C. Moseley, New Orleans, Edward Morison Woodfin, New Orleans, for Louise Wilson, plaintiff.
    Before SAMUEL, BOUTALL and BEER, JJ.
   ON MOTION TO RECONSIDER DISMISSAL OF APPEAL

BOUTALL, Judge.

Appellant has filed a motion to reconsider and recall our dismissal of its appeal under Rule VII, § 5(b), Uniform Rules-Courts of Appeal. That Rule reads as follows:

“The court may, ex proprio motu:
******
“(b) Consider abandoned and dismiss the appeal in any case in which the appellant has neither appeared nor filed brief prior to the time the case is called for argument. By ‘appearance’ is meant personal appearance in open court, or the filing of a written instrument negating any intent to abandon the appeal, or the filing of a written pleading; and”
* * * 5}5 * *

This matter was called for hearing on May 3, 1979, and at that time the appellant had filed no brief nor made an appearance. Counsel for appellee moved for a dismissal of the appeal under the Rule. The dismissal was granted and signed May 7,1979. On May 10, 1979 appellant filed this motion to reconsider and recall the dismissal, and ap-pellee has filed opposition thereto.

In support of his motion, appellant contends that he personally received no notification, and suggests that it may have been misdirected to the attorney whom he succeeded, and who then appeared on our records as the attorney of record. Presuming, but not deciding, that these allegations are correct, we hold that this is insufficient to remove this case from the operation of Rule VII. There was no notification to this court at or prior to date of hearing that appellant did not intend to abandon his appeal. See Walker v. Jones, 253 La. 908, 221 So.2d 44 (1969). Appellant having failed to comply with the requirements of the Rule, and not being covered by any exception thereto, the dismissal of his appeal must stand.

The motion to reconsider and recall dismissal of appeal is denied.