author: SCHOTT, Judge. BOUTALL, Judge

text:
    Robert JOHNSON, Jr. v. COLONIAL BUICK, INC.
    No. 7271.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.

      Frank S. Bruno, New Orleans, for plaintiff-appellant.
    Edwin A. Stoutz, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON, GUL-OTTA, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff brought suit for the return of $500 he deposited with defendant in connection with the purchase of a new automobile. Defendant answered and reconvened for damages allegedly resulting from plaintiff’s failure to accept the car. From a judgment dismissing plaintiff’s suit and defendant’s reconventional demand only plaintiff has appealed.

Plaintiff ordered the car on October 3, 1973, and he filled out and signed an order form contract. Conspicuous on the form was the statement, “TO BE DELIVERED ON OR ABOUT _, 19_”, but no date was inserted on the form. On October 4 plaintiff made his deposit. The automobile was delivered to defendant by the manufacturer between January 15 and 20, 1974. In the meantime, plaintiff’s attorney notified defendant on January 10 that the order was canceled and a formal demand was made on defendant for a return of the deposit.

Plaintiff testified that defendant’s salesman who took his order, Eugene Turk, promised delivery in six weeks. Plaintiff contends that he was planning a vacation for December 1 and ordered the car with the understanding that it would be ready at that time.

Turk testified that he did not promise delivery by any particular date but admitted that plaintiff was anxious to have the car for his vacation and that he told plaintiff the car would be ready in “eight weeks or better.”

The trial judge in his reasons for judgment stated that he “was unimpressed” with plaintiff’s testimony. Even accepting defendant’s evidence as true, however, we are unable to agree with the trial court’s judgment.

Reasons given by defendant for the delay in delivery were twofold; first, because special paint and a special landau top on the car delayed its manufacture and, second, the General Motors factory employees took their vacations during the last two weeks of December. These considerations explained the delay and were surely beyond the control of defendant, but the uncontradicted testimony of defendant’s witnesses was to the effect that none of these delays were anticipated by defendant when the agreement was made. On the contrary, the “eight weeks or better” statement encompassed the probability of some delay due to the special paint job but defendant had no reason to anticipate further delays because of the landau top or the vacations.

The question is whether by January 10, 1974, plaintiff was at liberty to withdraw from his contract pursuant to LSA-C.C. Art. 2485. Since no time was agreed upon a reasonable time for delivery was implied. H. T. Cottam & Co. v. Moises, 149 La. 305, 88 So. 916 (1921). As of January 10, 1974, when plaintiff canceled the sale fourteen weeks had passed since the order was placed so that the issue becomes whether this constituted a reasonble time.

Surely, the determination of reasonableness requires a consideration of what the parties intended when the agreement was made. The trial judge observed: “The plaintiff is an individual of intelligence and was aware or should have been aware that delivery by Thanksgiving was highly unlikely, if not a near impossibility.”

In the first place, we do not find any evidence in the record to support this finding. Turk’s testimony was that he promised delivery in “eight weeks or better.” Thanksgiving day was exactly eight weeks after the order was placed, so that even defendant considered eight weeks a possibility. But we are not concerned with a mere delay of eight weeks but one of fourteen weeks. The trial judge found this to be a reasonable delay because of the special features ordered by plaintiff and the fact that the factory employees went on vacation at the year’s end, but the evidence shows that neither party anticipated these delays when the contract was signed. Therefore, there could be no meeting of the minds between plaintiff and defendant to the effect that the time for delivery would involve these delays so that fourteen weeks would be a reasonable time.

If we may disregard the intention of the parties at the time the contract was made in determining the reasonableness of the time for delivery it would follow that a seller could hold a buyer to a contract to purchase for an indefinite length of time if the seller could show only that the delays were outside of his control. We cannot conclude that the law in general, and C.C. Art. 2485 in particular, is susceptible to this construction. Yet the effect of the trial court’s decision was exactly that because when plaintiff canceled the contract on January 10 he knew no more about the anticipated date of delivery than he had on November 29, eight weeks after the contract was made, or on December 29 when he returned from his vacation, some twelve weeks after the contract was made.

Accordingly, the judgment of the trial court is reversed and there is judgment in favor of plaintiff, Robert Johnson, Jr., and against defendant, Colonial Buick, Inc., in the sum of $500, with legal interest from June 18, 1974, until paid and for all costs.

REVERSED AND RENDERED.

BOUTALL, J., dissents with written reasons.

BOUTALL, Judge

(dissenting).

This is a suit for return of a deposit made in connection with the purchase of an automobile to be delivered at a later time. The majority opinion would reverse the trial court and order the deposit returned. I respectfully dissent for the following reasons:

The suit was based on two main issues:

First, plaintiff contended that there was an oral contract between him and Colonial Buick that the automobile would be delivered by December 1, 1973, and that he was induced into signing the order form agreement by fraudulent assertions of the defendants’ salesman that the car would be delivered by that time. The purchase order form states on its face “TO BE DELIVERED ON OR ABOUT_, 19_” plainly to be seen at the top of the document. The space for date is left blank.

The evidence adduced on delivery time is the testimony of the plaintiff (with some degree of support from his mother and a friend who accompanied him on later visits) as opposed to the testimony of the salesman and the sales manager of Colonial Buick. There is no need to detail all of this testimony with specificity, suffice it to say that the issue presented is one of credibility of the witnesses and the weight to be assessed to the testimony of each. It is apparent that the trial judge, in his written reasons for judgment, resolved this conflict in testimony in favor of the defendants, holding that the court was not persuaded by the testimony that the plaintiff had orally specified a required date of delivery, and that it was unimpressed by the testimony of the plaintiff.

Upon a finding of no specified time of delivery, the court then considered the second issue: what was a reasonable time for delivery? It is axiomatic that when there is no specified time of delivery in a contract of sale, the time of delivery must be considered to be a reasonable time. In my opinion, the determination of reasonable time is based upon the conditions and facts that affect delivery and not the state of mind of a party to the contract. If state of mind alone is controlling, then there should be a finding of specified time for delivery.

In this case the order was placed October 3, 1973, and the vehicle was not ready for delivery until January 12, 1974. The record discloses that the regular expected delivery time of a vehicle ordered on this date would be six to eight weeks. However, it is equally abundantly clear in the record that whenever a vehicle is ordered which requires special attention or special equipment other than that ordinarily included, some lengthier period of time is involved. On this vehicle, a Riviera two-door sport Coupe, with a suggested retail price of $5,305.05, the amount of extras ordered added up to a total list price of $8,272.05. Particularly, there are three extras found by the trial judge which caused most of the delay: (a) a special color paint which is not the standard color on the Riviera and which required specially made rubber components to get a color match; (b) a custom landau roof which required the vehicle to be shipped to another location for installation; and (c) a special custom leather interior that delayed the manufacturing process several days.

It is explained that to obtain the special paint job required, the vehicle had to be removed from the regular assembly line, and indeed, before it began to be assembled it was necessary that special matching parts be ordered in order to be installed for a color match. It is only after these parts are specially ordered and delivered to the assembly line that the vehicle can be placed into production. Then it must be removed and the special paint job applied. Additionally the vehicle must also be specially handled to install the special leather interior. Thereafter, the vehicle would normally have been shipped to the sales dealership. It is noted that some several extra days of delay occurred because the timing of the order coincided with the beginning of the model year.

In any event all of the extras were placed on the vehicle by December 17, at which time it was required to be sent to another location for installation of the landau roof. That period happened to coincide with the annual Christmas vacation customary in the automotive manufacturing business in general, and the particular roof installer, which lasts for approximately a two weeks period until after the first of January. The roof was then immediately installed and shipped back to the Buick division and then to the New Orleans dealer.

Considering the numerous special features, and the intricacies of installing them on a particular vehicle, and the season of the year involved, I agree with the trial judge that the delay in delivery was not an unreasonable delay. Accordingly, when the purchaser refused to accept delivery, he was in violation of the agreement between the parties.

Although both parties have urged upon us several legal theories as to how we should treat the $500.00 deposit made in connection with the purchase order, the written document regulates the rights of the parties concerning the deposit made. The contract specifically provides that the “deposit may be retained as liquidated damages”. I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Jerry BILES v. Richards CENTER and Reliance Insurance Company. Jeremiah L. BILES v. OTIS ELEVATOR COMPANY and the City of New Orleans.
    Nos. 7189, 7190.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Montgomery, Barnett, Brown & Read, Charles A. Boggs, New Orleans, for Reliance Ins. Co., third party plaintiff-inter-venor-appellant.
    Drury, Lozes & Curry, James H. Drury and Madison C. Moseley, New Orleans, for Otis Elevator and Employers Liability Assur. Corp., Ltd., defendants-appellees.
    Before SAMUEL, REDMANN and GULOTTA, JJ.
   SAMUEL, Judge.

Plaintiff filed these consolidated suits for workmen’s compensation and personal injury damages arising out of two elevator accidents, both of which allegedly occurred in the service elevator of the First National Bank of Commerce Building in New Orleans. At the time of both accidents, plaintiff was employed by the Richards Center, the owner of the First National Bank of Commerce Building.

The first suit was against the Richards Center and its compensation insurer, Reliance Insurance Company, to recover workmen’s compensation benefits. Reliance answered and filed a third party demand against Otis Elevator Company and its liability insurer, alleging Otis was the manufacturer and installer and had an exclusive maintenance agreement on the elevator in question. Third party plaintiff invoked the doctrines of strict liability, res ipsa loquitur and negligence. Subsequently, plaintiff’s compensation claim was settled by Reliance for a total of $7,040.63.

The second suit filed by plaintiff is a liability claim against Otis Elevator Company and the City of New Orleans. Reliance intervened in that second suit, seeking reimbursement for the compensation benefits paid and to be paid as a result of the falls of the elevator.

The consolidated cases were tried and taken under advisement. While under advisement, plaintiff settled the main demand against Otis, but Reliance’s claim against Otis for $7,040.63 was not settled.

The trial court then rendered judgment dismissing Reliance’s third party demand in the first suit and its intervention in the second suit. In reasons for judgment, the trial judge stated that, while the evidence was sufficient to conclude Otis was negligent in causing the first accident, inter-venor and third party plaintiff had not met its burden of proving plaintiff’s injuries resulted from that accident. By implication, the trial judge thus found the second accident was the cause of plaintiff’s injuries and he specifically found plaintiff had failed to prove liability on the part of Otis with respect to that accident. Reliance has appealed.

The record does not establish with exactness the date of the first accident. However, the consensus is it occurred sometime in May or June of 1972. Plaintiff testified he did not pay particular attention to any possible injury which might have resulted from the first accident; he did not see a doctor or lose any time from work, nor did he obtain any treatment whatever in connection with the first accident. He did not report that accident to his employer because he did not have many pains, and the few pains he did experience in his back were attributed by him to a prostate problem.

Plaintiff’s co-workers, Weseley Kniepp and Brian Thompson, both testified they knew nothing regarding any injury from the first elevator accident. While plaintiff complained continually after the second accident, the testimony is clear he made no complaints whatever to his fellow employees regarding the first. It is also significant that all the medical evidence indicating injury to plaintiff’s back was related to treatment rendered after the second accident. Since the physicians only saw plaintiff after the second accident, they were not in a position to make a determination of his back condition prior to that time. Consequently, the medical testimony is of no benefit to appellant in view of the testimony of plaintiff and of his fellow employees, all of which establishes with little doubt that he was not injured in the first accident.

On the day of the second accident the elevator was being operated by an employee of the Richards Center who was not the regular elevator operator; he was the lobby porter. At approximately 4:15 p. m. plaintiff entered the elevator on the nineteenth floor with the intention of stopping and exiting at the first floor. However, he stated that instead of stopping at the first floor, the elevator proceeded all the way down to the basement and he was “jarred”.

The testimony indicates the elevator operated in a normal manner until it approached the first floor. The lobby porter, Willie Ball, testified he attempted to slow the elevator between the third and first floors but it went straight down and returned to the first floor even though he took no action with respect to the controls to cause it to come back up. He denied knowledge that anyone was injured and stated when the elevator returned to the first floor everyone aboard was laughing and talking.

The testimony offered by Otis tends to show Ball’s testimony asserts a physical impossibility. Otis called Roland Tillison, an employee of twenty-two years, who testified the leveling of an elevator with a particular floor is largely a matter of judgment on the part of the operator. He explained an experienced operator can release the controls at just the right moment so that the elevator aligns directly with the desired floor level, but an inexperienced operator may have to stop the elevator and reactivate the controls in order to bring it to that floor level. Tillison further testified if the controls were moved abruptly from the “down” position to the “stop” position and then to the “up” position, the result would be a stop which was considerably more abrupt than normal. He characterized such an incident as “operator malfunction”. With regard to Willie Ball’s statement, that he did not reverse the controls but that the elevator went into the basement and bounced back up, Tillison testified that in the pit of the elevator shaft there was a hydraulic bumper designed to absorb the shock of the elevator striking it and that, because the weight of the car is much greater than the upward force of the hydraulic bumper, it would be impossible for the hydraulic bumper to literally shove the elevator from the basement back up to the first floor.

Tillison’s testimony was supported by Donald Naquin, a maintenance examiner for Otis. Naquin testified the buffer device consists of a “downward” stroke which has the effect of cushioning or of absorbing the force of a downward moving elevator. Such a buffer device does not have an upward stroke which could repel the elevator back to the first floor.

The testimony of Lloyd Ponson, an elevator inspector for the City of New Orleans, was also presented. Ponson inspected the elevator on August 7, 1972, approximately two weeks prior to the second incident. At the time of his inspection he found everything on the elevator worked as it should. Moreover, he stated the elevator landed and leveled properly at floor level and completely passed his test. Like the other two witnesses, he had never heard of an elevator bouncing back up to the first floor from the basement.

Particularly impressive is Ball’s failure to mention the alleged malfunction in August, 1972 to his employer or to anyone else, including his replacement. The replacement arrived approximately five minutes after the incident and Ball testified he watched him enter the elevator, close the door, and assumed he had taken the elevator up. Ball did not tell his replacement anything unusual had occurred or that there was anything inoperable with the elevator.

Particularly important with regard to the immediate resumption of operation of the elevator is additional testimony given by Tillison. He testified, without contradiction, that if the elevator 'had struck the hydraulic buffer and depressed it even as little as two or three inches, a limit switch would be tripped and all relays would be cut off. In this way, the elevator would have been rendered inoperable, and the only way the elevator could have been placed back in operation was to reativate the relays in the machine room on the twenty-second floor of the building. Not only was there no record of any such reactivation of the relays, but equally important, the elevator continued to operate following the accident.

Both questions presented for the trial judge’s decision, i. e., which accident involved liability on the part of Otis and which accident caused plaintiff’s injuries, posed only issues of fact for determination by the trial judge. The principle has been stated repeatedly in the jurisprudence that the trial judge is vested with much discretion in reaching his factual conclusions, and that such conclusions should not be disturbed on appeal in the absence of manifest error. In the present case, the trial judge was presented wtih some conflicting testimony regarding the issues for his determination. After reviewing the evidence presented, our conclusion is that his findings of fact are correct. On the record before us, we also find plaintiff’s injuries were caused by the second accident and that the second accident was not caused by malfunction of the elevator or negligence on the part of Otis.

For the reasons assigned, the judgments appealed from are affirmed.

AFFIRMED.

      . The City of New Orleans was voluntarily dismissed without prejudice.

      . See, for example, Bartholomew v. Travelers Insurance Go., La.App., 290 So.2d 390.


author: SARTAIN, Judge.

text:
    HOOD MOTOR COMPANY, INC., Plaintiff-Appellee, v. James W. LAWRENCE, Defendant-Appellant.
    No. 10047.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 20, 1976.

      Thomas L. Giraud, New Orleans, for defendant-appellant.
    Joseph H. Simpson, Amite, for plaintiff-appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

This is a suit for a deficiency judgment following the seizure and sale under execu-tory process of a 1969 Chevrolet automobile. When this matter was first before us (La.App., 307 So.2d 143) we held that C.C.P. Art. 2083, permitting the Clerk of Court to sign an order for executory process, was violative of the Federal Due Process Requirement of Judicial Control of Ex Parte Seizures. The Supreme Court of Louisiana (320 So.2d 111) reversed and remanded.

The sole issue now presented is appellant’s claim that (1) he was not served with the notices of seizure and to appoint an appraiser, and (2) that the Sheriff’s return indicating such service is fatally defective. We affirm.

With respect to whether defendant was actually served the copy of the notice in the executory proceeding, we have the testimony of the defendant that he was not. According to him, the first time he had knowledge that any legal proceedings had been instituted against him was when he was served with a copy of the petition for a deficiency judgment.

When the issue was raised, counsel for plaintiff offered in evidence the Sheriff’s return itself, nothing more.

The return of a citation or other process is prima facie evidence of service. Smith v. Crescent Chevrolet Company, 1 So.2d 421 (1st La.App., 1941), Martinez v. Silverman, 288 So.2d 88 (4th La.App., 1974). These returns, when properly attested to, are given great weight and the burden rests on the party attacking them to establish their incorrectness. This burden can only be met by a clear and convincing proof that the endorsements contained thereon are erroneous. Our settled law is that a return can not be impeached by the uncorroborated testimony of the party upon whom service is stated to have been made by the officer. Smith v. Crescent, supra; Martinez v. Silverman, supra; Canterberry v. Slade Brothers, 232 La. 1081, 96 So.2d 4 (1957); Guedry Finance Co. v. Breland, 192 So.2d 884 (4th La.App., 1966); Sims v. First National Bank of Ruston, 177 La. 386, 148 So. 505 (1933); Logwood v. Logwood, 185 La. 1, 168 So. 310 (1936). Considering the above law and after reviewing defendant’s totally uncorroborated testimony that he was not served, it is abundantly clear that defendant has failed to bear the burden of proving that he was not served.

Defendant’s second and remaining contention is that the return itself is so defective that it must be voided.

The return in question reads as follows:

“PERSONAL SERVICE
I CERTIFY that on the 5 day of April 19_, I served a certified Copy of the within Notice of Seizure and Notice to appoint an Appraiser, on James Lawrence Defendant herein named, IN PERSON, in the Town of Roseland, Parish of Tangipahoa, State of Louisiana, about 6 miles from the Court House of this Parish, and make this my return, this 5 day of April 1973.
/s/ Walker
Sheriff of the Parish of Tangipahoa, State of La.”

Thus, the return is blank for the year following the day (5) and month (April) as shown on the first line of the return. It is this omission (the year) that defendant argues renders totally void not only the return but also the service upon the defendant and the judgment based thereon.

He relies principally on General Motors Acceptance Corporation v. Guidry, 177 So. 2d 184 (3rd La.App., 1965).

Defendant argues that the absence of the year on the first line of the return fails to comply with C.C.P. Arts. 324 and 1292. However, we feel that these articles should also be considered along with R.S. 13:3471 (5), which reads:

(5) The return of the serving officer on any citation or other legal process is conclusive, unless directly attacked. Such an attack may be made by rule in the action or proceeding, if made prior to judgment. If made after judgment, the return may be attacked only in a direct action to annul the judgment, which may be brought in the original action or proceeding.
If the defendant was actually served, the court may correct an error in the return by an amendment thereof, on a rule brought against and tried contradictorily with the defendant who was served, or any other party who may be affected by the amendment.

In Baham v. Stewart Bros. & Co., 109 La. 999, 34 So. 54, 56 (1903), the court stated :

The citation itself is the important legal fact upon which the validity of the judgment rests, while the return is simply “evidence” in respect to that fact.
If the sheriff, through inadvertence, negligence, or ignorance, fails to make the recitals which properly should have been made, but, none the less, plaintiff’s counsel and the court act upon it, and judgment is rendered upon it, the defendant on appeal is authorized to take advantage of the mere absence of these recitals, and have the judgment set aside as having been rendered upon insufficient evidence as to the fact of citation; the whole subject-matter of citation in that case being apparent upon the return. But where the defendant, instead of appealing, has recourse to an action of nullity, he must leave the mere recitals of the return which the court below dealt with merely as an evidence of the facts connected with the citation. He must go back of the return of the sheriff, and attack and tender an issue as to the existence of the facts which the law made necessary to constitute a citation. He may still use the sheriff’s return and its recitals as evidence in aid of his claim that no citation had been made, but that return, with its recitals, no longer has the force and effect which it would have had, had the objection been raised on appeal. The plaintiff may be in a position, when the attack is made upon the citation itself, to meet the attack, rebut it, and sustain the citation. Whether he will be able to do this will depend upon the facts of each special case.

We view R.S. 13:3471(5), above, as reflective of the language quoted above from Baham. The first paragraph of Section (5) pretermits the issue of service and relates directly to an attack on the return itself. If prior to judgment, such an attack may be made by rule. If after judgment, the return may be attacked only in a direct action. If brought prior to judgment and by rule, the court may correct an error in the return by permitting an amendment thereto.

C.C.P. Arts. 324 and 1292 relate generally to the duties and responsibilities of sheriffs and particularly to their returns. The elements of “date, place, and method” of service are required to be placed on the return not to lend to that return any greater degree of validity but primarily to assure that the service it relects is a valid one. This is so because there can be a valid service and an irregular return. It is the invalidity of the service that vitiates jurisdiction. The return is nothing more than a certification (enúorsement) that all of the requirements essential to a valid service have been made. If the return is the sole evidence as to whether these requirements have been satisfied and that return fails to reflect an essential requirement, then it follows that you have an invalid service.

We find nothing inconsistent with the holding in General Motors Acceptance Corporation, above, Baham, above, and the cited articles and statute. In General Motors Acceptance Corporation, above, there was no return, hence there was no evidence in the record on the fact of service.

We must construe defendant’s position as being an attack on the service itself, this issue was not raised by a direct action to impeach the return. Viewed in this light, we look to the return for the purpose of determining whether that return itself is sufficient to support a finding of service. We think it does.

Obviously, the year of service was left blank. However, the certificate itself shows that on the same calendar date (April 5) the sheriff signed the same. It is evident that the omission of the year was an inadvertent oversight. It could not have been the year before, suit was not filed. It could not have been the next year, the proceeding was over. To view it otherwise than the same year as at the bottom of the return (1973) would stretch the most technical of minds.

For these reasons, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.

      . The sheriff shall make a return to the issuing court on citations, summons, subpoenas, notices, and other process, and on writs, mandates, orders, and judgments, showing the date on which and the manner in which they were served or executed.

      . The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. The court, at any time and upon such terms as are just, may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.


author: PER CURIAM.

text:
    Ottis Medford MOORE, Plaintiff-Appellee, v. Edna Adler MOORE, Defendant-Appellant.
    No. 5584.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1976.
    Fredric G. Hayes, Lafayette, for defendant-appellant.
    Joseph A. Koury, Lafayette, for plaintiff-appellee.
    Before HOOD, WATSON and GUID-RY, JJ.
   PER CURIAM.

This court ex proprio motu dismisses the appeal of the defendant-appellant and plaintiff-in-reconvention, Edna Adler Moore, on the grounds that the appellant failed to perfect her appeal within the time allowed by LSA-C.C.P. arts. 3942 and 3943, by timely filing her appeal bond.

On April 15, 1976, the appellant timely moved for and was granted an order for appeal from a judgment of the trial court dated April 15, 1976, which judgment awarded the plaintiff-appellee and defendant-in-reconvention, Ottis Medford Moore, a divorce a vinculo matrimonii, and which rejected the appellant’s reconventional demand for alimony for herself. The order of appeal set the appeal bond at $500.00.

LSA-C.C.P. arts. 3942 and 3943 provide that an appeal from a judgment granting or refusing to grant a divorce or alimony must be taken within 30 days from the applicable date provided in LSA-C.C.P. art. 2087(1), (3). Since the appellant did not move for a new trial LSA-C.C.P. art. 2087(1) is applicable, and the appellant was required to perfect her appeal within 30 days from the expiration of the delay for applying for a new trial, or by May 26, 1976. The appellant did not file her bond until June 1, 1976, and her appeal therefore must be dismissed as not having been timely perfected.

For the reasons assigned the appeal of the defendant-appellant is hereby dismissed, and the defendant-appellant is hereby cast for all costs of this appeal.

APPEAL DISMISSED.


text:
    Clarence THOMAS et al. v. NEEB-KEARNEY AND COMPANY, INC., et al.
    No. 7335.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Stephen L. Huber, Metairie, for third-party plaintiff-appellant.
    Adams & Reese, James E. Blazek, New Orleans, for third-party defendant-appellee.
    Before SAMUEL, MORIAL and BEER, JJ.
   SAMUEL, Judge.

Plaintiff in this matter, Clarence Thomas, filed suit against Neeb-Kearney and Company, Inc., Aetna Insurance Company, its liability insurer, Dixie Leasing of New Orleans, the owner of the tractor portion of the truck involved in the collision, and Liberty Mutual Insurance Company, Dixie Leasing’s liability insurer, for damages arising out of a vehicular collision.

Answers were filed in due course on behalf of all defendants. In addition Neeb-Kearney, Dixie Leasing and Liberty Mutual filed a third-party demand against Aetna for indemnity or, in the alternative, contribution.

The matter was settled with the plaintiff prior to trial for $25,750, and the case was tried on the third-party demand alone. Judgment was rendered in favor of third-party defendant, Aetna, and third-party plaintiffs have appealed.

There is little dispute as to the facts. On August 28, 1971 plaintiff was injured by Jessie Martin, a truck driver for Neeb-Kearney. The rig driven by Martin was composed of a truck-tractor unit which pulled a trailer unit. The truck was owned by Dixie Leasing and leased on a day-today basis to Neeb-Kearney. The trailer was owned by United Trailer Leasing, and it likewise was leased to Neeb-Kearney. The truck-tractor owned by Dixie Leasing was insured by Liberty Mutual. Neeb-Kearney was insured by Aetna.

The question raised by appellants, particularly Liberty Mutual, is whether the driver of the truck-tractor, Jessie Martin, was a primary insured under the policy of insurance written by Aetna in favor of Neeb-Kearney, so that the sum paid plaintiff should be proportioned between Liberty Mutual and Aetna on a pro rata basis, predicated on their respective coverages.

Aetna sets the matter forth in the form of three issues, a negative answer to any one of which would result in a judgment in its favor. The first two “issues” are somewhat illusory and tend to involve circular reasoning. However, in view of our holding on the third issue, asserted by Liberty Mutual and more clearly formulated by Aetna, it is unnecessary for the court to discuss the first two issues.

Aetna argues that its policy contains an “excess insurance” clause the result of which would be to insulate it from any liability until the full $100,000 limit of Liberty Mutual has been exhausted. Obviously, the stipulated sum of $25,750 is well within the $100,000 limit of liability of Liberty Mutual, and if Aetna is correct, there should be no judgment rendered against it.

The pertinent provision in Aetna’s policy reads as follows:

“VI. ADDITIONAL CONDITION
With respect to a hired automobile or a non-owned automobile, this insurance shall be excess insurance over any other valid and collectible insurance available to the insured.”

The pertinent provision in Liberty Mutual’s policy provides:

“If the insured has other insurance against a loss covered by this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability of all valid and collectible insurance.”

Liberty Mutual refers to these provisions and it refers to the rule that when two policies apply to an accident and both have exclusionary clauses in the event of the existence of other applicable insurance, the courts find both exclusionary clauses repugnant and permit recovery against both insurers based on a pro rata basis according to the respective policy limits.

Liberty Mutual cites no authority in support of its argument, nor can we find any. Presumably, Liberty Mutual refers to the rationale of Graves v. Trader & General Insurance Company, 252 La. 709, 214 So.2d 116, in which the court held repugnant two pro rata clauses which, if interpreted literally, would have provided no insurance even though the driver and the vehicle involved were each covered by separate policies of liability insurance. In that case the insurance clauses were deemed repugnant and the court held both insurers to be primary, prorating the judgment between them.

There is no such conflict of insurance clauses in the matter before this, court. Liberty Mutual simply has the primary policy on the owned vehicle (i. e., the truck-tractor owned by Dixie Leasing), and Aet-na has the excess coverage because as to it the truck-tractor is literally a hired or non-owned vehicle.

An almost identical situation with identical insurance clauses was decided in this manner by the Louisiana Supreme Court in the case of Juan v. Harris, 279 So.2d 187 (1973). In the Juan case Hartford Accident & Indemnity Company’s policy contained an “excess coverage” clause identical to that contained in the Aetna policy in this case. Moreover, Employers’ Liability Assurance Company’s policy contained a pro rata clause identical to that contained in Liberty Mutual’s policy in the present case. The court simply applied the policies as written, refused to declare the policies repugnant or to reform the Hartford policy to provide for a pro rata sharing of the loss, and declared the Employers’ policy primary and the Hartford policy excess.

Likewise in the present case there is no conflict between the policies so as to render them repugnant. Clearly, by literal application of the very terms of the policies, Liberty Mutual provides primary coverage and Aetna provides only excess coverage.

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

AFFIRMED.

      . The only asserted dispute is whether third-party plaintiffs were estopped from bringing the third-party demand because of their delay in so doing and other indications which might tend to show they admitted primary coverage on the part of Liberty Mutual. However, this argument was not seriously pursued in brief or in oral argument, and this court will treat the matter as abandoned.

      . Since United Trailer Leasing had ceased doing business at the time of this suit, there is no indication of any insurance written directly on the trailer.

      . In the trial court, it was stipulated Aetna would be liable for one-third the amount paid plaintiff if Liberty Mutual is correct.


author: CHIAS SON, Judge.

text:
    Rudolph Dawes EASTERLY and William E. Wild, Jr. v. DYNAMIC ENTERPRISES, INC., et al.
    No. 10871.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 20, 1976.

      Arthur H. Andrews, Baton Rouge, for defendant-relators.
    Paul H. Dué, Baton Rouge, for plaintiff s-respondents.
    Before LANDRY, SARTAIN and CHIASSON, JJ.
   CHIAS SON, Judge.

This matter is before this Court on a Writ of Certiorari or Review previously granted by this Court to defendants, Utica Mutual Insurance Company, National Estates, Eddie P. Draughon and Oscar N. Harris. The writ concerns a judgment of the Trial Court overruling the Exception of Improper Service of Process and Lack of Jurisdiction in Personam filed by National Estates, Draughon and Harris, and the judgment of the Trial Court overruling Utica Mutual’s Exception of No Right of Action.

The plaintiffs, Rudolph Easterly and William Wild, Jr., who are Louisiana residents allege in their petition that they suffered severe injuries as the result of a motor vehicle accident on July 12, 1975 in Memphis, Tennessee. The accident involved an Orange Mound Cab in which plaintiffs were paying passengers and a truck owned by one or more of the defendants, National Estates, Draughon, Harris and Dynamic Enterprises, Inc.

The petition alleges the status and domiciles of the defendants as:

“A. DYNAMIC ENTERPRISES, INC., a foreign corporation authorized to do and doing business in the State of Louisiana and in Livingston Parish;
“B. UTICA MUTUAL INSURANCE COMPANY, a foreign insurance corporation authorized to do and doing business in the State of Louisiana ;
“C. NATIONAL ESTATES, alleged on information and belief to be a partnership organized under the law of the State of North Carolina, but doing business in interstate commerce, in Louisiana and in this parish and deriving substantial revenue therefrom, and thus amenable to exercise of personal jurisdiction by this Court;
“D. EDDIE P. DRAUGHON, of legal age, and alleged on information and belief to be a domiciliary and resident of the State of North Carolina, sued individually and as one of the two partners comprising defendant, National Estates, a nonresident doing business in the State of Louisiana and deriving substantial revenue therefrom, and thus amenable to exercise of personal jurisdiction by this Court; and
“E. OSCAR N. HARRIS, of legal age, and alleged on information and belief to be a domiciliary and resident of the State of North Carolina, sued individually and as the other partner comprising defendant, National Estates, a nonresident doing business in the State of Louisiana and deriving substantial revenue therefrom, and thus amenable to exercise of personal jurisdiction by this Court.”

Dynamic Enterprises has been served through its Louisiana agent for service of process and has filed an answer. Service on National Estates, Draughon and Harris was made pursuant to the Louisiana Long Arm Statute (R.S. 13:3201 et seq.). Utica Mutual was served through the Secretary of State.

R.S. 13:3201 provides:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(a) transacting any business in this state;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
(d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or
(3) having an interest in, using, or possessing a real right or immovable property in this state.”

The defendants contend that the Court does not have personal jurisdiction over them under R.S. 13:3201 because:

“The statute confers jurisdiction only:
(1) where one of the jurisdictional bases enumerated in subsections (a) through (e) is present; and then only
(2) where the cause of action arises from one of the jurisdictional bases specified.” Rush v. Matson Navigation Company, 221 So.2d 265 (La.App., 2nd Cir. 1969).

The facts as alleged by the plaintiff do not establish any of the above enumerated jurisdictional bases.

The plaintiff contends that the holding in Rush v. Matson Navigation Company, supra, is in error because it fails to consider the purpose for which the statute was drafted. Comment (a) to LSA-R.S. 13:3201 states that:

“(a) R.S. 13:3201 through 13:3207 were adopted on the recommendation of the Louisiana State Law Institute to permit the courts of this state to tap the full potential of jurisdiction in personam over nonresidents permitted by International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945); and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).”

Plaintiff argues that the Long Arm Statute gives Louisiana Courts jurisdiction in personam over nonresidents in all cases permitted by decisions of the U. S. Supreme Court. Liddell v. Hanover Insurance Company, La.App., 289 So.2d 299 (1st Cir., 1973); Aucoin v. Hanson, La., 207 So.2d 834 (La.App., 3rd Cir., 1968). The Long Arm Statute was drafted to “tap the full potential of jurisdiction in personam over nonresidents permitted by International Shoe Co. v. State of Washington and McGee v. International Life Insurance Company.” (citations omitted). The United States Supreme Court in International Shoe Co. v. State of Washington, supra, stated that:

“to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.” (emphasis added).

In McGee v. International Life Insurance Co., supra, the Court held “It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State.” (emphasis supplied). An examination of these cases, the language of LSA-R.S. 13:3201 and prior Louisiana jurisprudence indicates that the statute was enacted to provide Louisiana Courts with jurisdiction in personam over nonresidents where the nonresident has the “minimum contact” required by due process and the cause of action sued upon is connected to acts in which the state has a valid interest.

The record contains no evidence supporting plaintiffs’ allegations that defendants, National Estates, Draughon, and Harris, do business in Louisiana and derive substantial revenue from this business.

In addition, the plaintiffs were injured while riding in a taxi in Tennessee. Louisiana’s only connection with the cause of action is that two of its citizens are parties to the suit. A substantial connection does not exist between the events leading to this cause of action and this state. ' Therefore, the Long Arm Statute does not provide jurisdiction in personam over defendants, National Estates, Draugh-on and Harris.

The plaintiffs’ cause of action as to Uti-ca Mutual is based on the Louisiana Direct Action Statute (R.S. 22:655) which provides in part:

“This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the State of Louisiana.”

For a right of action to exist against the insurer it has been held that the accident or injury must occur within the state, or the policy of insurance must be written or delivered within the state. Kirchman v. Mikula, La.App., 258 So.2d 701 (3rd Cir., 1972). Morse v. Hartford Casualty Ins. Co., 301 So.2d 741 (3rd Cir., 1974). Sacher v. Columbia Steamship Company, 493 F.2d 1109 (5th Cir., 1974). Under this interpretation the plaintiffs have no right of action against Utica Mutual because the accident occurred in another state and the policy was written or delivered in another' state. The plaintiffs argue that these cases incorrectly interpret the holding of the Louisiana Supreme Court in Webb v. Zurich Insurance Co., 251 La. 558, 205 So.2d 398 (1967). In this case the Court held:

“The legislature never intended by its adoption of Act 541 of 1950 to limit R.S. 22:655 to accidents occurring in the state. Its intention, instead, was to simply provide that when the accident or injury does occur within Louisiana, the direct action right exists ‘whether the policy of insurance sued upon was written or delivered in the state of Louisiana or not and whether or not such policy contains a provision forbidding such a direct action'.’ ”

The plaintiffs contend that this case is not authority for holding that where the accident does not occur in this state the policy of coverage must have been issued or delivered in this state. Rather, plaintiffs suggest that Webb v. Zurich Insurance Co., supra, holds that this statute “. . make[s] a fund directly available to one injured as the result of the acts of an insured, provided there are minimum contacts in Louisiana” and that the Court should look at several factors, not just the two requirements mentioned before, to determine if jurisdiction exists.

The plaintiff is obviously confusing the “minimum contacts” test for jurisdiction over the person with the statutory grant of a right of action, as allowed by LSA-LRS 22:655. In Morse v. Hartford, supra, the Court had occasion to deal with a set of circumstances, not unlike those found in the instant case. In Morse, the defendant-insurer was sued under the Direct Action Statute due to an automobile accident which occurred out of state, involving an insured whose policy was written or delivered outside the state. The Court held that the insurer, who was qualified to do business in Louisiana, was subject to the jurisdiction of the Courts of Louisiana due to certain minimum contacts with this state, however, the plaintiff had no right of action against the defendant insurer under the Direct Action Statute due to the fact that the policy was neither written nor delivered in the state and the accident occurred outside the state.

Therefore, for the aforementioned reasons, the Writ is made peremptory and the suit is dismissed as to Nátional Estates, Draughon, Harris and Utica Mutual, with the cost to be borne by the plaintiffs.

WRIT MADE PEREMPTORY AND SUIT DISMISSED.


author: BLANCHE, Judge.

text:
    Robert L. RABORN v. Glenn I. DONICA.
    No. 10759.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 20, 1976.
    Patsy Jo McDowell, Baton Rouge, for appellant.
    Robert L. Raborn, Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TI'NGER, J J.
   BLANCHE, Judge.

Defendant-appellant, Glenn I. Donica, appeals the granting of a default judgment in favor of plaintiff-appellee, Robert L. Raborn.

Plaintiff, an attorney, represented defendant’s wife in their divorce proceeding and in all proceedings incidental thereto.

On July 14, 1975, plaintiff, in proper person, sued defendant-husband for $9,459.35, representing attorney’s fees and costs allegedly due him as a result of his representation of defendant’s wife.

On July 29, 1975, within the time required for defendant to answer plaintiff’s petition, defendant filed in the record of the case a written “Motion for Security for Costs.” As the basis therefor, defendant alleged that the plaintiff’s suit was instituted merely to harass the defendant since plaintiff had already been granted attorney’s fees in the divorce judgment. Additionally, defendant asserted that he was unable to bear the cost of the litigation since his assets were under injunction by The Family Court, Parish of East Baton Rouge, pending settlement of the community property.

The prayer of the motion states:

“WHEREFORE, Respondent prays that he be granted the relief herein sought, and that after due proceedings had, that there be judgment rendered herein ordering the plaintiff to post a bond in an amount sufficient to cover the costs of same.” (Record, p. 362)

No other pleading was filed by defendant.

On September 9, 1975, while the above motion was pending before the court and without notification to defendant or his counsel, plaintiff perfected a default judgment against the defendant.

Defendant, upon learning of the judgment against him, submitted a rule nisi to set aside said judgment as being an absolute nullity. After denial of that rule, defendant timely appealed the original default judgment and the denial of his rule. The apppeals were consolidated as No. 10,-759 on the docket of this Court. Plaintiff answered, seeking damages for frivolous appeal.

Although other issues have been raised by both parties, the dispositive issue before this Court is the validity of the default judgment.

LSA-C.C.P. Art. 1701 provides, in pertinent part:

“If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. * * * if

In the instant case, the defendant has not answered the plaintiff’s petition. Therefore, under the literal .wording of Article 1701, the plaintiff would be entitled to a default judgment. However, as previously noted, defendant demanded security for costs before the expiration of time in which to answer.

In this regard, we note that LSA-R.S. 13:4522 provides, in pertinent part:

“The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the court such suit or intervention, as the case may be, shall be dismissed without prejudice. * * * ” (Emphasis supplied)

In effect, Section 4522 allows a defendant to delay filing any pleading, including his answer, until the plaintiff has met his demand to post security for costs. Since the defendant was not required to answer while the motion was pending, the defendant did not “[fail] to answer within the time prescribed by law” (Article 1701) so as to entitle plaintiff to a default judgment.

The foregoing analysis of Section 4522 is in accord with the Louisiana Supreme Court’s interpretation of the statute’s source, Act No. Ill of 1926. In Jones v. Williams, 191 La. 129, 184 So. 565 (1938), the Court said:

“ * * * The statute declares that a defendant may demand the bond for costs ‘before pleading’. That means that the defendant may, on a sufficient showing, refrain from entering any plea in the case until the bond is furnished. * * *” (191 La. at 135, 184 So. at 567)

Section 4522 is also in harmony with the general jurisprudential rule that no default can be taken where preliminary objections to a petition remain undecided. See Johnson v. Walgreen Louisiana Company, 163 So.2d 830 (La.App. 4th Cir. 1964), wherein a written “Motion to Strike” (LSA-C.C.P. Art. 964) was found to interrupt the running of time for filing an answer and, therefore, preclude the taking of a default judgment under the facts of that case.

Since the defendant herein was not required to answer plaintiff’s petition until the motion for security for costs was disposed of, the plaintiff was not entitled to a default judgment.

LSA-C.C.P. Art. 2002 reads, in pertinent part, as follows:

“A final judgment shall be annulled if it is rendered:
* * * * * *
“(2) Against a defendant * * * against whom a valid judgment by default has not been taken * * *.”

For the hereinabove reasons, the instant default judgment was invalid and, therefore, it must be annulled.

Accordingly, the judgment of the trial court is reversed and the default judgment of September 9, 1975, is hereby annulled, vacated and set aside, and this case is remanded to the trial court for further proceedings in accordance with law. The costs of this appeal are assessed to the plaintiff-appellee, with the remaining costs to be assessed in accordance with the final disposition of this cause.

REVERSED AND REMANDED.

      . Section 4522 made no substantive change in Act 111 of 1926, which act, in pertinent part, provided as follows:
      “Section 1. Be it enacted by the Legislature of Louisiana, That the defendant before pleading in all cases, * * * may by motion demand and require the plaintiff, third opponent or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the Court such suit, third opposition or intervention, as the case may be, shall be dismissed as in case of non-suit; provided this shall not apply to cases brought in forma pau-peris, nor to the state or any political subdivision thereof.”


author: ELLIS, Judge.

text:
    Carl THOMAS, Sr. v. SOUTHERN SHIPBUILDING CORPORATION and Highlands Insurance Company.
    No. 10756.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.

      Charles W. Schmidt, III, New Orleans, for appellant.
    Richard L. Muller, Covington, for appel-lees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

Carl W. Thomas, Sr. injured his knee in the course and scope of his employment as a shipfitter with Southern Shipbuilding Corporation. This is a suit against Southern and Highlands Insurance Company, its workmen’s compensation insurer, seeking benefits for permanent and total disability, together with penalties and attorney’s fees. From a judgment awarding benefits for permanent and total disability, defendants have appealed.

The accident in which plaintiff was injured happened on August 9, 1972, when he slipped and fell, striking his left knee. On the next day, he was sent to a Dr. Nix, who advised him to take two or three weeks off and get on crutches. Plaintiff did not do this, but instead returned to work. His knee did not improve, and on September 25, 1972, he saw Dr. Luis Matta, an orthopedist, who diagnosed an osteochrondral fracture of the medial femoral condyle, and a torn medial semilunar cartilage. On October 19, 1972, surgery was performed, during which the cartilage was removed, and other procedures performed. On January 15, 1973, Dr. Matta felt that plaintiff had reached “a plateau in recovery” and discharged him to return to work, with a ten per cent residual disability of the left knee. He examined plaintiff on one other occasion, November 8, 1974, at which time he found no substantial change in the condition of the left knee. However, he testified that plaintiff complained of difficulty in going up and down ladders, and marked swelling of the knee joint, particularly in the afternoon. Plaintiff did not describe pain during the day, but complained of pain at night and occasional severe cramps involving the back of the knee and the leg. Dr. Matta also noted degenerative arthritic changes in the knee, which had pre-existed the injury.

He was of the opinion that the knee was stable and in substantially the same condition as before the surgery, subject to the ten per cent disability assigned, and that there was no reason why plaintiff should not be able to work as a shipfitter. Dr. Matta further testified that he could not say whether or not plaintiff experienced pain when he used his knee, or to what degree.

Dr. W. Hammond Newman, an orthopedist, first saw plaintiff on September 15, 1973, and was still treating him as of the time of trial on May 21, 1975. On September 15, plaintiff was complaining of an unstable feeling in the knee when he walked carrying weight, and a tearing feeling of the medial aspect of the left knee. He also complained of swelling. On examination, however, Dr. Newman found the knee to be quite stable. He noted periodic swelling and puffiness of the knee, but none was seen after October 12, 1974. He noted the presence of degenerative arthritis, which he felt was probably aggravated by the injury, and atrophy of the quadriceps muscle of the left leg. He was of the opinion that plaintiff would experience pain on stooping and climbing, and when carrying heavy weights, and that this difficulty would increase if plaintiff worked long hours. However, he did not think the pain would be so severe that he would recommend that plaintiff not work. He was of the opinion that plaintiff ought to work, and recommended that he continue to work.

Plaintiff testified that he returned to work as soon as Dr. Matta told him to, and had continued to work since that time. He testified that he had been in continuous pain throughout that period. He did everything that he was told to do by his superiors, although he said there were some things which he could no longer do, including extended crawling in confined spaces, and lifting and carrying as much as he could before the accident. It is clear from the record that shipfitting is extremely heavy work, and that Mr. Thomas did substantially all that was required of him at work although somewhat limited by his injury. The record further shows plaintiff to be a tough and stoic individual.

We think that the record as a whole reflects that plaintiff’s left knee is stable, and that it is not dangerous to plaintiff to work as a shipfitter; that the knee is subject to a moderate degenerative arthritic condition which was probably aggravated by the injury; that plaintiff is constantly suffering pain in his left knee; and that he does perform substantially all of the duties required of him as a shipfitter.

Neither doctor believed plaintiff to be disabled. However, Dr. Matta would not speculate as to whether or not plaintiff was suffering pain. Dr. Newman testified that plaintiff was suffering pain, but did not feel that it should be so severe as to be disabling.

Plaintiff testified that the pain was both severe and constant, and that it restricted him somewhat in his employment. He testified that the pain would keep him awake at night, that he had given up both hunting and fishing because he could neither walk nor sit in a boat for long periods. He testified that he could not cut the grass or do other work around his home because of the pain, and that he worked only out of economic necessity.

The trial judge found that plaintiff’s ability to work was so impaired as the result of the pain he experienced that he was unable to compete in the labor market on an equal basis with other shipfitters. He was also of the opinion that plaintiff was working in severe pain. We find no manifest error in either of these findings of fact.

For pain to be considered disabling, it must be substantial enough to keep the employee from carrying out some of the functions of his job. Glidden v. Alexandria Concrete Company, 242 La. 626, 137 So.2d 894 (1962).

In this case, although plaintiff is substantially performing the duties of a shipfitter, he is no longer able to carry as much weight as he did prior to his injury, and is not assigned to jobs which involve extended crawling. We think the record as a whole, including both medical and lay testimony, reflects that the restriction in his activities results from pain which he suffers as a result of his injury. Under those circumstances, he is considered to be disabled, and entitled to compensation. See Lewis v. Weise, Inc., 268 So.2d 147 (La.App. 1 Cir. 1972).

The judgment appealed from is therefore affirmed at defendant’s cost.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    James S. KING, Jr. v. Mrs. Everett CRAWFORD and Wilbur Smith et al.
    No. 10755.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 1, 1976.
    France W. Watts, III, Franklinton, for Mrs. Crawford.
    L. B. Ponder, Jr., Amite, for Smith.
    Dale E. Branch, Bogalusa, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit to quiet title and for a judicial determination of boundaries filed by James S. King, Jr., against Mrs. Everett Crawford and the heirs of Wilbur Smith. From a judgment in favor of petitioner, James S. King, Jr., Mrs. Crawford and the Smith heirs have appealed.

The record points out that this suit was originally filed on January 17, 1969. After an exception was disposed of, trial was commenced on January 4, 1973. While the trial was underway, the parties agreed to a stipulation in an attempt to settle amicably this dispute. A survey was performed and a map was prepared in accordance with the stipulation. A consent judgment was prepared in order to put into writing the settlement of the parties in accordance with the stipulation and survey. Counsel for all defendants refused to sign the consent judgment contending that the survey was in error, and the judgment did not reflect the stipulation of the parties.

Since the defendants refused to sign the consent judgment, petitioner on November 25, 1974, sought a “show cause” order as to why the judgment should not be granted. A hearing on the rule to show cause was fixed for December 13, 1974. A dilatory exception of unauthorized use of summary proceeding was filed, and opposition was raised that the judgment did not reflect the stipulation entered into by the parties. The hearing was refixed for January 10, 1975, and the minutes of the Court for that date reflect as follows, to-wit:

“This matter came on to be heard on rule to show cause why judgment should not be signed. * * * The matter was heard and submitted to the Court and the Court signed judgment in accordance with stipulation. * *

All defendants-appellants contend that the Trial Judge erred in the use of summary proceedings for the signing of the judgment, and that the judgment is in error because it does not conform with the stipulation.

ON MOTION TO DISMISS

Appellee, James S. King, Jr., filed in this Court, prior to oral argument, a motion to dismiss the appeal. This motion has been referred to the merits. The appellee contends in his motion to dismiss that the defendants have confessed and acquiesced in the judgment rendered by the Trial Court inasmuch as they agreed to the stipulation which in turn became the judgment. LSA-C.C.P. art. 2085.

We cannot agree that the defendants either confessed or acquiesced in the judgment rendered by the Trial Court. There is in the record a stipulation to which all parties agreed, but prior to the signing of the prepared judgment by the Trial Judge, all of the defendants argued and contended that the judgment did not reflect this stipulation. We, therefore, find the motion to dismiss to be without merit.

ON THE MERITS

Appellants contend that the Trial Judge erred in the unauthorized use of summary proceeding in determining whether the prepared judgment should be signed, as well as the fact that the judgment does not conform with the stipulation.

We find no need to discuss the alleged unauthorized use of summary proceeding, for after a detailed reading of the stipulation dictated into the record, we find that the survey does not agree with the stipulation, is lacking in detail, and that the judgment that has been granted does not agree with the stipulation.

The first stipulation is adequately covered by the survey, but the property description in the stipulation calls for the use of the western bank of Star Creek as the boundary line rather than the center line of Star Creek as provided for by the judgment.

Stipulation No. 2 and 3 make reference to a fence of the Smith heirs located in Lot 3, but this fence is not denoted on the survey, and thus it is impossible to determine whether the survey is in compliance with the stipulation. The survey should give the location of the fence as described in Stipulation No. 2, and the entire fence should be run, and not merely the locations of either end.

Stipulation No. 4 also makes reference to fences, and these fences are not shown with any certainty on the survey, and thus the survey should be corrected to show the exact location of these fences, by running the entire length of the fence, and not simply showing the locations of each end of the fence.

As to Stipulation No. S, we find that there is no language in the judgment granting to Mrs. Crawford the remainder of Lot 4 and Lot 4 east of the gravel road. The judgment therefore would need to be corrected to show the adjudication to Mrs. Crawford of this property.

In addition, we note that the survey is , apparently in error when it has Lot 4 as being north of Lot 3, whereas, the reverse is the correct position of these two lots.

We are of the opinion that the parties to this law suit are bound by the stipulation that was entered into freely and voluntarily, but we are compelled to reverse the judgment of the Trial Court and remand this case so that the survey and judgment can be corrected in accordance with the views expressed hereinabove. All costs of this appeal are to be paid by the appellee.

REVERSED AND REMANDED.

      . LSA.-O.C.P. art. 2085 provides:
      “An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rende'red against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”

      . The stipulation reads as follows:
      “The first stipulation, run a line 204.5 feet northwest along the north Headright line of Headright 37, Township 1 South, Range 11 East, Washington Parish, Louisiana; measured from the intersection of the north line of Headright 37 in the Western Bank of Star Creek as per the Berlin survey which has been offered into evidence, dated January 12, 1966; thence turn and angle to the left and run due south to the gravel road. The north portion of the Head-right line, the gravel road, and Star Creek will be declared by judgment to belong to Mr. J. S. King, Jr. The remainder of the land marked for identification as Parcel ‘A’ in the Plaintiff’s Exhibit No. 6, will be decreed to be owned by Mrs. Crawford. “Stipulation No. 2, J. S. King, Jr. is to receive the north 100 feet of the area enclosed by the Smith heirs by fence located in Lot 3 of Section 18 of Township 1 South, Range 11 East.
      “Stipulation No. 3, J. S. King, Jr., will also be declared to be the owner of all of Lot 3 North of the above described north Smith fence which runs east and west and is located in Lot 3 as described above.
      “Stipulation No. 4, the heirs of Alcus Smith will be declared by judgment to be owners of the remainder of Lot 3 and all of Lot 4 lying west of the gravel road that is presently under fence; and, in addition are decreed to be the owners of an area of ground 110 feet measuring north and south, lying adjacent to and south of their south fence line in Lot 4 of Section 18, Township 1 South, Range 11 East. “Stipulation No. 5, Mrs. Everett Crawford will be declared and adjudicated the owner of all of the remainder of Lot 4 and Lot 4 East of the gravel road and in addition that small area approximately 30 feet lying between the fence of the Smith heirs and Headright 37 line.
      “Stipulation No. 6, Mrs. Crawford will be decreed to be the owner of all of Lot 3 east of the existing Smith fence and south of the property heretofore decreed to be the property of Mr. King in Lot 3.”


author: ELLIS, Judge:

text:
    Sylvester Ray JOHNSON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 10753.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Granted Oct. 1, 1976.

      Iddo Pittman, Jr., Hammond, for appellant.
    Charles B. W. Palmer, Amite, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This is a suit for recovery of benefits under the “Coverage T — Total Disability” provisions of an automobile policy issued to Sylvester Ray Johnson by State Farm Mutual Automobile Insurance Company. From a judgment awarding plaintiff benefits, penalties and attorney’s fee, defendant has appealed.

Coverage T provides as follows:

“Coverage T — Total Disability — Maximum 200 Weeks. To pay weekly indemnity at the rate stated in the exceptions for the period of continuous total disability of the insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while in or upon or while entering into or alighting from, or through being struck by an automobile, provided (1) such disability shall commence within twenty days after the date of the accident, and (2) any disability during the period of fifty-two weeks from its commencement shall be deemed total disability only if it shall continuously prevent the insured from performing every duty pertaining to his occupation, and (3) any disability after said fifty-two weeks shall be deemed total disability only if it shall continuously prevent the insured from engaging in any occupation or employment for wage or profit and (4) the weekly indemnity for total disability as provided herein above shall in no event extend beyond a period of 200 consecutive weeks from the date of commencement of disability as provided above.”

Plaintiff was injured in an automobile accident on July 27, 1972, and, as a result, remained off the job until September 4, 1972, when he returned to work full time. He remained at work until January 10, 1973, when he passed out on the job. He has been off the job since that time, and is shown by the medical testimony to have been totally disabled since then because of a ruptured intervertbral disc in his cervical spine.

Plaintiff made a claim under Coverage T through his local insurance agent, and defendant made 25 weeks of payments to him under that provision, totalling $1,250.00. They ceased payments after July 10, 1973, because they were no longer satisfied that plaintiff was totally disabled within the meaning of the policy.

However, in this court, defendant, for the first time, urges that plaintiff is not eligible for further benefits under the terms of the policy quoted above. It concedes that plaintiff was totally disabled from July 27 through September 4, 1972, but argues that any disability subsequent to his return to work is not compensable under Coverage T because not continuous since the accident. This is clearly a correct contention. In order to recover, plaintiff’s disability must be total, preventing him from performing his occupation, and continuous, and it must arise within twenty days of the accident.

The record reflects that plaintiff was totally disabled from July 27 to September 4, 1972. He worked full time from then until January 10, 1973, when he again became totally disabled. His claim was for total disability beginning as of the latter date, but caused by the accident of July 27, 1972.

Under the clear and unambiguous terms of the policy, he is not entitled to benefits for his later disability because it was not continuous from the time of the accident. The record does not suggest that Mr. Johnson was unable to perform every duty of his occupation between September 4, 1972, and January 10, 1973, although it does show that he was working in pain.

Defendant has, however, made payments to plaintiff under Coverage T beyond those which it may have been obligated to make under the terms of the policy. It might be argued that in so doing, it has waived the provisions of the policy which protect it from liability. It may very well be that defendant can no longer recover payments erroneously made with full knowledge of the circumstances. However, we do not believe that they are now precluded from pleading the policy provisions as a defense for that reason alone. Payment under such circumstances cannot create an obligation when none existed under the policy.

We are, therefore, of the opinion that plaintiff is entitled to no further recovery under the provisions of Coverage T. Neither do we find plaintiff to be entitled to penalties and attorney’s fee.

The judgment appealed from is therefore reversed, and there will be judgment herein in favor of State Farm Mutual Automobile Insurance Company and against Sylvester Ray Johnson, dismissing his suit at his cost.

REVERSED AND RENDERED.


author: GUIDRY, Judge.

text:
    John C. ROURKE, M.D., and Lee J. Marsalise, et al., Plaintiffs-Appellees, v. Victor E. COURSEY, Jr., Defendant-Appellant.
    No. 5566.
    Court of Appeal of Louisiana, Third Circuit.
    July 1, 1976.

      Sanders, Miller, Downing & Kean by Gerald E. Songy, Baton Rouge, and Jones, Patin, Harper, Tete & Wetherill by James C. Hanchey, Lake Charles, for defendant-appellant.
    Scofield, Bergstedt & Gerard by Robert L. Hackett, Lake Charles, for plaintiffs-ap-pellees.
    Before HOOD, CULPEPPER and GUIDRY, JJ.
   ON MOTION TO DISMISS APPEAL

GUIDRY, Judge.

The plaintiffs-appellees, John C. Rourke, Lee J. Marsalise, Carl Marsalise and Rosa Marsalise, move to dismiss the two appeals taken by the defendant-appellant, Victor E. Coursey, Jr., in this litigation.

We dismiss both of the defendant-appellant’s appeals.

On November 24, 197S, the defendant-appellant moved for and obtained an order of appeal from a judgment of the Fourteenth Judicial District Court, Parish of Calcasieu, dismissing the plaintiffs-appel-lees’ Petition For A Deficiency Judgment without prejudice.

On December 11, 1975, the defendant-appellant also moved for and obtained an order of appeal from a judgment of the same trial court rendered on December 4, 1975, denying the defendant-appellant’s request for a preliminary injunction enjoining a sheriff’s sale which was scheduled to be held on January 7, 1976.

The transcript of appeal was finally lodged with this court on May 19,1976.

The plaintiffs-appellees allege, and an examination of the record confirms, that there is no signed judgment dismissing the plaintiffs-appellees’ Petition For a Deficiency Judgment without prejudice, and therefore the defendant-appellant’s appeal from this judgment must be dismissed as premature; LSA-C.C.P. arts. 1911 and 2083. Advertiser, Division of Independent, Inc. v. Tubbs, 203 So.2d 418 (La.App. 3rd Cir. 1967); Kleb v. Choate, 203 So.2d 422 (La.App. 3rd Cir. 1967); Succession of Grigsby v. Hamilton, 211 So.2d 699 (La. App. 2nd Cir. 1968); Ready v. Sun Oil Company, 315 So.2d 840 (La.App. 1st Cir. 1970); McElwee v. McElwee, 244 So.2d 35 (La.App. 2nd Cir. 1971).

The defendant-appellant’s appeal from the trial court’s denial of his request for a preliminary injunction enjoining a sheriff’s sale which was scheduled to be held on January 7, 1976, must also be dismissed, as the sale was held as scheduled after the defendant-appellant’s requests for stay orders from this court and from the Louisiana Supreme Court were denied. The issue is thus moot. Heard v. Seegers, 186 So.2d 170 (La.App. 2nd Cir. 1966); Morehouse Parish Police Jury v. Wild Life & Fisheries Commission, 199 So.2d 5.42 (La.App. 4th Cir. 1967); Mecom v. Mueller, 235 So.2d 597 (La.App. 4th Cir. 1970); Barnes v. City of Hammond, 276 So.2d 746 (La.App. 1st Cir. 1973); City Stores Co. v. Gervais F. Favrot Co., Inc., 315 So.2d 370 (La.App. 4th Cir. 1975), writs refused, 320 So.2d 557 (La. 1975).

For the reasons assigned both appeals of the defendant-appellant are hereby dismissed at his costs.

APPEALS DISMISSED.


text:
    J. B. BAILEY v. C. W. LOWERY.
    No. 10750.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 22, 1976.
    Robert J. Prejeant, Houma, for appellant.
    Grady Weeks, Houma, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, J. B. Bailey, appeals the trial court judgment which denied his claim for rent, damages and attorney’s fees allegedly due under a lease of certain carnival rides by defendant-appellee, C. W. Lowery.

On February 12, 1974, plaintiff and defendant entered into a seven-year written “LEASE CONTRACT WITH OPTION TO PURCHASE” plaintiff’s carnival rides. The lease price was the sum of $10,000 per year, payable in ten equal monthly installments, in advance, commencing February 1, 1974, and due on the first day of each month for ten consecutive months throughout each year.

In further consideration of the said lease, defendant was granted the option to purchase the rides for the sum of $70,000. To exercise the option, defendant was to notify plaintiff of his intention by certified letter, and in such case the act of sale was to be passed within ten days of the receipt of said letter by plaintiff. Upon exercise of the option, all of the prior rental payments were to be applied to the purchase price, with the balance to be paid in cash at the passing of the sale.

Under the agreement, the lessee was obligated to maintain the rides in good, safe condition. Paragraph 8 provided for written notice to the defendant if he violated any of the lease provisions. Ten days after such notice, if defendant remained in violation, plaintiff could, at his option, demand the entire remaining rent or immediately cancel the lease without putting the lessee in default.

Immediately after confection of the lease, defendant fell two months behind in rental payments, and on May 22, 1974, plaintiff demanded payment by registered letter. The defendant failed to pay and on June 7, 1974, plaintiff brought suit requesting sequestration of the property, payment of the entire rental as per paragraph 8, and reasonable attorney’s fees as authorized in the agreement. The rides were seized on that date.

However, immediately following institution of suit, a meeting between plaintiff and defendant was arranged at the office of Judge Robert Lottinger, who at that time represented plaintiff. The primary purpose of that meeting was to reach a compromise regarding the overdue rent, presumably to avoid a trial of the matter. Also present at the meeting were the plaintiff’s wife; defendant’s wife; Judge Lot-tinger; and Douglas Authement, one of defendant’s attorneys.

Although defendant acknowledged that the primary purpose of the meeting was to settle the dispute concerning the overdue rent, he contends that he also orally exercised his option to purchase the rides.

Plaintiff disputes that the defendant notified him of his intention to exercise the option. He claims that the meeting resulted in the defendant’s agreeing to pay $1,250 as partial settlement of the overdue rent.

Nevertheless, the sequestered property was released and the defendant again took possession thereof.

At the meeting above referred to, it is defendant’s contention that plaintiff was to produce proof of his ownership of the rides by tendering to defendant the titles thereto; and when the plaintiff failed to produce these titles after approximately three weeks, defendant abandoned the rides in Houma, Louisiana. He did, however, return them to plaintiff’s home in the early part of August, 1974.

Upon receipt of the rides, plaintiff inspected them and allegedly found them to be in poor repair. Consequently, he amended his original petition, seeking additional damages of $19,895. He also sought $33,000 allegedly representing a reduction in the fair market value of the rides due to defendant’s failure to properly maintain them.

In that posture the suit went to trial. The defendant contended that he owed nothing to the plaintiff since he breached the contract by failing to produce the titles to the rides following defendant’s exercise of the option. Defendant reconvened against plaintiff, seeking $85,000 damages for loss of business profits and other general damages.

Plaintiff, on the other hand, denied that the option was exercised since the defendant failed to follow the prescribed method for exercising the option, that is, notification of the plaintiff by certified letter.

The trial judge found as a fact that the defendant orally notified the plaintiff of his desire to exercise the option at the aforementioned meeting. He further held that even though said notice of intention was not transmitted in accordance with the terms of the agreement, plaintiff, by his actions, waived that requirement and thereby acquiesced in the method chosen by the defendant. The plaintiff was, therefore, precluded from recovery since it was he, and not defendant, who was in violation of the agreement. Defendant’s re-conventional demand was denied, and no appeal was taken therefrom.

On appeal, plaintiff contests the trial judge’s factual finding that defendant communicated to plaintiff his desire to exercise the option. He also argues that as a matter of law the defendant was precluded from exercising the option in any manner other than that specified in the agreement.

After a careful review of the record, we cannot say that the trial judge was manifestly erroneous in concluding that the defendant exercised the option.

Our review of the evidence disclosed that the same is in hopeless conflict, with plaintiff and defendant presenting diametrically opposed versions of the meeting.

Judge Lottinger’s testimony indicates that although no option was exercised the titles to the property were definitely discussed and that plaintiff was to gather the titles together so that the sale could be perfected on another date.

Douglas Authement testified that the option was definitely exercised. In essence, he stated that defendant had reason to believe the subject rides had been previously sold to another person and, therefore, one of defendant’s objectives at the meeting was to exercise the option and put an end to the uncertainty surrounding the defendant’s use of the rides. It was in this context that defendant demanded to examine the titles in order to verify plaintiff’s ownership. The titles were also required for financing.

It was Authement’s contention, in view of the foregoing, that plaintiff left the meeting to go and gather the titles so that the sale could be passed. Plaintiff, of course, never produced the titles and, therefore, the sale never took place.

Carolyn Lowery, wife of defendant, testified that she and her husband informed the plaintiff at the meeting that they desired to exercise the option and that plaintiff agreed to produce the titles. She stated that the sale was not perfected solely due to the failure of plaintiff to produce the titles.

Defendant’s father-in-law, B. E. Miller, also a carnival operator, testified that he had made arrangements for defendant to obtain financing for the sale and also intimated that he would have helped financially if required.

Although the plaintiff’s wife was present at the meeting, he failed to call her to testify in his behalf.

After hearing the testimony of these witnesses, the trial judge concluded that a discussion of the presentation of the titles would not have taken place unless there was the desire and notice by the defendant to exercise his option to purchase.

The criteria by which to judge the factual determinations of the trial court are set forth in Canter v. Koehring Company, 283 So.2d 716 (La.1973), as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” (283 So.2d at 724)

The evidence presented at this trial furnishes a reasonable basis for the trial court’s factual determination. The trial judge’s evaluation of the conflicting testimony presented herein should not be disturbed since he had the opportunity to evaluate the credibility of each witness and draw reasonable inferences of fact based thereon. To disturb his conclusion based merely upon a reading of the cold record would do violence to the proper allocation of trial and appellate functions.

Since no immovable property was involved herein, LSA-C.C. Art. 2462 did not require that the option to purchase these rides be in writing. Therefore, by mutual consent, the parties could orally vary the requirement of the written agreement regarding the manner of exercise of the option. Southern Scrap Material Company, Limited v. Commercial Scrap Material Corporation, 239 La. 958, 120 So.2d 491 (1960); Christ v. Christ, 251 So.2d 197 (La.App. 3rd Cir. 1971).

However, plaintiff contends that the oral agreement was invalid since it contained no new meeting of the minds of the parties with regard to the essential elements of their contract, that is, a new price, time, et cetera. This argument is without merit, because the evidence establishes that the only contractual requirement that the parties intended to change was the method of exercise of the option. Therefore, all of the other elements of the contract remained in effect and the parties were governed thereby.

Plaintiff argues that the defendant could not exercise the option at Judge Lot-tinger’s office since prior to that time, on May 22, defendant had been put in default and as a result he no longer had any rights under the contract. However, plaintiff’s argument overlooks the fact that one of the purposes of the meeting at Judge Lot-tinger’s office was to settle the dispute regarding the rent arrearage. By plaintiff’s own admission, that dispute was settled and the defendant ultimately delivered to him a check for $1,250 toward satisfaction of that claim.

The plaintiff’s release of the sequestered property and acceptance of the rent settlement had the effect of releasing the defendant from default. Therefore, since the defendant was no longer in default under the agreement, he was entitled to exercise his option.

In conclusion, we find, as did the trial judge, that the plaintiff’s suit should be dismissed. By his failure to present the required titles, the plaintiff breached the contract and thereby prevented the sale of the rides. Since it was plaintiff, and not defendant, who breached this contract, plaintiff has no legal right to enforce same against the defendant.

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

AFFIRMED.

      . Judge Robert Lottinger was a City Judge of the City of Houma, State of Louisiana, and authorized to practice law.


author: CHIASSON, Judge.

text:
    Colia PRESTON v. CHRYSLER MOTOR(S) CORPORATION et al.
    No. 10730.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 1, 1976.
    John B. Noland, Baton Rouge, for defendant-appellant Brignac Dodge, Inc. (with Breazeale, Sachse & Wilson, Baton Rouge), for appellant.
    Freddie Pitcher, Jr., Baton Rouge, for appellee.
    Carey J. Guglielmo, Baton Rouge, for Chrysler Motors.
    James Moore, Baton Rouge, for Magic City Motors.
    Before SARTAIN, EDWARDS, and CHIASSON, JJ.
   CHIASSON, Judge.

The plaintiff-appellee, Colia Preston, filed suit against Chrysler Motors Corporation, Brignac Dodge, Inc., and Magic City Motors, Inc. for damages sustained in a single car accident on November 16, 1974. The accident resulted from the failure of a lower control arm assembly on appellee’s automobile. At the trial on the merits, the Trial Court held Brignac Dodge, Inc., appellant, individually liable for the accident and dismissed the suit as to the other defendants. The appellee was awarded damages by the District Court in the amount of $8,741.96, itemized as follows:

$2,500.00 Personal Injury Award
$4,540.00 Lost Earnings
$ 120.00 Medical Expenses
$1,407.96 Automobile Rental
$ 174.00 Wrecker Charges
$8,741.96 TOTAL

Brignac Dodge, Inc. moved for a new trial in the District Court limited to re-argument of the amount awarded for automobile rental charges and of lost wages. After reargument the Trial Court reduced the award allowed for automobile rental from $1,407.96 to $498.06 and let stand the award of $4,540.00 for lost wages. The parties only disagreement with the Trial Court’s determination and the only issue presented to this Court in this appeal is the amount of the award for lost wages.

In the initial calculation of the award for lost wages the Trial Court determined ap-pellee’s gross earnings for a ten month period in 1974 to be $21,313.94. Since the appellee, a commission salesman, had no record of his expense for this period, (ap-pellee’s records had been stolen from his automobile) the trial judge used a 47 percent expense factor, based on appellee’s 1972 income tax return, to establish ap-pellee’s net income. Using this factor the trial judge computed appellee’s net earnings for the ten months to be $11,297.00. It appears that in calculating appellee’s net monthly income from this figure the trial judge transposed a number. As a result he based his award to appellee on a net monthly income of $1,297.00 rather than the $1,129.70 which should have been used. Therefore, the award to appellee for the loss of three and one-half month’s wages should be $3,953.95 rather than the $4,540.-00 awarded.

Counsel for the appellant argued on rehearing that the Trial Court erred in its determination of the expense factor. According to appellee’s 1972 income tax return, appellee had a gross income of $23,-449.03. On this same return appellee listed deductions of $10,949.31 for “other business expenses” (expenses for telephone calls, hotels and motels, gas and oil, cleaning fence lines, small tools, and miscellaneous) and an additional $8,486.09 in other specific deductions (depreciation, repairs, insurance, legal and professional fees, and commissions). The Trial Court used the former figure in calculating its 47 percent expense factor. Counsel for the defendant contends that the total amount of deductions, $19,435.40, should be used in calculating the expense factor. Use of this figure gives an expense factor of approximately 83 percent and a net income for the three and one-half month period of $1,-280.00.

The amended reasons for judgment given by the trial judge state the Court’s belief that the 47 percent expense factor reflects the true ratio of appellee’s expenses to gross income. The basis for this holding by the Trial Court was a finding of appel-lee’s changed circumstances (plaintiff had a smaller territory to cover and no longer incurred hotel and motel expenses) and that though depreciation was a valid item as a tax deduction, it should not be used to determine the actual lost earnings of a commission salesman.

The loss of appellee’s expense records for 1974 makes determination of his net income for that year difficult. Where it is clear that the appellee has suffered some damage his demand will not be rejected because he cannot establish the exact loss suffered. In such cases the Court must fix the quantum as best it can. The Trial Court is vested with much discretion in the assessment of such damages. Brantley v. Tremont & Gulf Railway Co., 226 La. 176, 75 So.2d 236 (1954). Under the facts of this case it cannot be said that the Trial Court abused its much discretion. Net taxable income may be useful as a measure of loss of earnings in those cases in which the claimant is engaged in a business in which expenses are obviously deductible from gross income in order to determine taxable income or wages. Reeves v. Louisiana and Arkansas Railway Co., La.App., 304 So.2d 370 (1st Cir., 1974). However, net taxable income is not synonymous with the actual loss to the appellee. The former is used to determine a claimant’s tax liability, the latter is a measure of the injury done to him.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is amended to reduce the award for lost wages from $4,540.00 to $3,953.95, thereby reducing the total amount of the award from $7,832.06 to $7,246.01, and in all other respect the amended judgment of the Trial Court rendered on November 21, 1975 is affirmed. All cost of this proceeding to be paid by the appellant.

AMENDED AND AFFIRMED.