author: MARVIN, Judge.

text:
    Succession of L. J. ALEXANDER, Deceased, Plaintiff-Appellant, v. J. Earl ALEXANDER, Defendant-Appellee.
    No. 13287.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.
    Emmons, Henry & Reeves by Joseph A. Reeves, Jr., Jonesboro, for plaintiff-appellant.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Donnie G. Brunson, Jonesboro, for J. Earl Alexander, defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

In this action, the lower court construed against the succession administratrix a stipulation made in earlier litigation between the administratrix and a judgment creditor. This construction of the stipulation resulted in a judgment which ordered the judgment creditor to be paid by preference and priority over the legal fees of the administratrix and her counsel. On her appeal of this judgment, we reverse and remand.

The succession property was encumbered with mortgages and judgments totaling approximately $35,000. About 2V2 years after the succession was opened, new counsel employed by the administratrix negotiated with the creditors holding encumbrances to accept less than the face amount of their encumbrances. Court approval was then sought for a private sale of the succession property in separate tracts to three individuals for $24,000, an amount which was thought to be sufficient to satisfy and cancel the encumbrances and to allow the six heirs of the decedent to receive a few hundred dollars cash upon closing of the estate.

J. Earl Alexander, a relative and former business partner of the decedent, purchased from a judgment creditor a 1968 judgment against the decedent in the principal amount of $11,500. Alexander then filed formal opposition to the proposed private sale of the succession property on the grounds that the property would bring more at a public sale to satisfy creditors. At a hearing on this issue in August, 1976, the stipulation in question was made. We construe the stipulation to be an “agreement” in conformity with the lower court rule no. 16 (Second Judicial District Court, L.S.A. Court Rules) which reads: “. . . all agreements relating to. causes in Court, must be in writing, unless made in Open Court and entered at the same time.”

The petition for private sale originally alleged offered prices for the several tracts of succession property which would total $24,000. During the 1976 hearing, some of the persons offering to purchase the tracts raised their offers so that the total offered amount would be $28,500. Apparently an error in arithmetic led the litigants and the court to believe that the increased offers would total approximately $31,000. After the increased offers were considered, this stipulation was entered during a noon recess at the 1976 hearing:

ADMINISTRATRIX’S COUNSEL: “. . .at this time by stipulation of counsel, let the record reflect that the prospective purchasers if called to testify would testify that they would agree to pay the price of approximately $31,000.00 or the equivalent of the amount of judgments as negotiated by counsel on their behalf, in addition to the face value of opponent’s, Mr. Alexander’s, judgment which he purchased that they would be willing to pay that price for the property in question for their respective interests.
THE COURT: “Do you join that stipulation?
OPPONENT’S COUNSEL: “Yes, sir, we would join in that stipulation. And, in view of that particular stipulation, at this time we would withdraw the opposition filed by J. Earl Alexander to the private sale under the terms of that stipulation, Your Honor.
THE COURT: “Let the stipulation be made a part of the record.
ADMINISTRATRIX’S COUNSEL: “We will amend the pleadings, Your Honor, and serve the public notice upon the proper parties and have the proper notices published . . . ” Emphasis Supplied.

• After amended pleadings and advertisement, and without further opposition, the private sale as proposed, was authorized and consummated. The amended pleadings expressly recited that the total price to be received was $28,500. It was discovered afterward that this amount would not be sufficient to pay (1) the amount negotiated with creditors other than J. Earl Alexander, (2) the face amount of the judgment purchased by Alexander, and (3) the legal charges of the Administratrix and the succession counsel. J. Earl Alexander then brought suit in January, 1977, against the purchasers and the administratrix seeking to be paid the full amount of his judgment or alternatively, to set aside and nullify the consummated sales. The district judge who presided at the 1976 hearing when the stipulation was entered had retired and did not preside at the 1977 trial. A transcript of the 1976 hearing was introduced at the 1977 trial at which another judge of the district presided.

We construe the agreement in accord with the principles set forth in our Civil Code and cases interpreting its articles. In this respect, we are not allowed to rewrite or reform the agreement if it does not explicitly or implicitly resolve in detail all of the conflicts between its parties.

In written reasons for judgment, the lower court emphasized testimony by the ad-ministratrix that it was her desire that the property be sold at private sale to the three prospective purchasers even if someone else would offer $30,000-$35,000 for the property. The lower court then concluded upon particular consideration of the 1976 stipulation, that the administratrix, through her attorney, was agreeing that Alexander’s judgment would be paid by preference over any fees which might be due her and her attorneys, and that this judgment would be paid in full.

We cannot agree that this was what the administratrix and her attorney stipulated and agreed. The stipulation is clear and express. It says that if the persons offering to purchase at private sale were called as witnesses in the hearing, they would testify that they would be willing to pay approximately $31,000 for the property. The effect of the agreement was to allow the property to be readvertised for private sale, without opposition by the former opponent Alexander, if the offerors raised their total offer from the original offer of $24,-000. We conclude that the opponent in effect was saying that he would be willing to bid at a public sale something more than the private sale offerors originally proposed but not more than what they were later proposing, and that he would make no opposition to a private sale at the increased price. If the opponent concluded that he was being guaranteed by the agreement that he would be paid in preference over the privileged estate charges, his conclusion, however sincere, was erroneous. The stipulated agreement does not read to that effect. Any other agreement was not “entered” in accord with the lower court rules. Had the property sold at public succession sale, even for $35,000, the question of the amount and the ranking of legal charges against the succession would not have been resolved simply by the sale being consummated. C.C.P. Art. 3303. At the time the stipulation was entered, no tableaux had been proposed or submitted and the question of the amount and ranking of all charges, secured and unsecured, privileged and unprivileged, against the succession, had not been submitted for adjudication.

The judgment against the succession which was purchased by plaintiff is but one of several against the succession. All encumbrances, privileges and charges against the succession will have to be ranked and accordingly paid as the law provides. C.C.P. Art. 3303. The judgment of the lower court holding that the stipulation in question gives preference and priority to plaintiffs judgment over the legal charges which may be approved against the succession is reversed. Any modification of the terms of any obligation owed by the succession must be approved by the court. C.C.P. Art. 3198. We remand so that the succession proceedings may be concluded as the law directs.

At appellee’s cost, reversed and remanded.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    AMERICAN BANK AND TRUST COMPANY IN MONROE, Plaintiff-Appellee, v. CARSON HOMES, INC., et al., Defendants-Appellants.
    No. 13288.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.

      DeCelle & Smith by Malcolm DeCelle, Jr., Monroe, for defendant-appellant Sherwin-Williams Co.
    Thomas H. Fowler, Jr., Monroe, for defendant-appellant Loyd C. Fox.
    Hewitt B. Johnson, Monroe, for other party defendants.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellee American Bank and Trust Co. in Monroe.
    Before BOLIN, C. J., and PRICE and MARVIN, JJ.
   PRICE, Judge.

Loyd C. Fox and Sherwin-Williams Company have appealed the judgment rendered in a summary proceeding brought by American Bank and Trust Company in Monroe to have certain lienholders show cause why their claims should not be declared inferior to an interim construction mortgage held by the bank.

This court has no jurisdiction over the devolutive appeal taken by Fox since the bond was not timely filed, and it is ordered dismissed. Judgment was rendered and signed by the trial court on December 9,1976, and notice of judgment was mailed to the attorney for Fox on December 10, 1976. There was no application for a new trial. Fox obtained an order for a devolu-tive appeal on February 8, 1977, and bond was fixed by the trial court. The prescribed bond was not filed until February 22, 1977, more than sixty days after the delay for applying for a new trial. Therefore, the security was not furnished timely as required by La.C.C.P. Art. 2087, as amended by Act 201 of 1976, Sec. 1. The judgment against Fox has become final, and this court must notice its lack of jurisdiction and dismiss the appeal. See Brous-sard v. Daigle, 295 So.2d 227 (La.App. 3rd Cir. 1974).

The issue presented on appeal by Sherwin-Williams Company is whether its materialman’s lien filed on an apartment project built by Carson Homes, Inc., in Monroe is subordinate to the interim financing mortgage of American Bank because the mortgage was recorded prior to any work begun or material furnished as provided in the lien statute LSA-R.S. 9:4812. The trial court held the mortgage was recorded prior to commencement of any work or delivery of material and recognized the preference of the bank’s mortgage. We affirm.

The property on which the apartment project was built was acquired by Carson Homes, Inc., on October 9,1973. The interim construction mortgage of Carson Homes to American Bank was recorded on October 10,1973. Appellant contends the developer, Carson Homes, performed grading work and placed some construction materials on the job site prior to the date of recordation of mortgage which gives appellant’s lien preference over the bank’s mortgage under the ranking provisions of the lien statute.

In support of its claim, appellant presented the testimony of Loyd C. Fox, the manager of the project for Carson Homes, and several other persons who contend they visited the building site during the critical time frame. They testified that a Carson Homes’ truck loaded with plywood had been parked on the construction site prior to October 10th, and that a portion of this material had been used later in the construction. They also testified that a quantity of reinforcement rods and wire mesh were stored on the site prior to this date.

A tractor driver employed by Fox testified he had done some leveling of dirt on the subject tract prior to October 10th.

The record shows the tract on which the project in question was constructed was adjacent and contiguous to a completed apartment project previously constructed and still owned by Carson Homes. The boundary between the new tract and the old project was not visually discernable. The materials alleged to have been placed on the new site were in the vicinity of the boundary between these two tracts.

The trial judge found the testimony of an elderly couple, Mr. and Mrs. Dan Shields, who lived in a small house on the rear of the subject property through the date of November 1, 1973, to be controlling. They testified no work was done or material placed on the property prior to their moving. Two of the persons who sold the property to Carson Homes testified they had no knowledge of any work having commenced until after the sale was consummated on October 10th.

The trial judge found that the evidence did not establish the reinforcing rods or wire were actually on the construction site. He concluded the parking of a truck loaded with plywood near the common property line and an inconspicuous amount of grading by the developer is not sufficient to show a commencement of work as intended by the lien statute.

These are mostly factual matters and revolve primarily around the evaluation of the credibility of the conflicting testimony. The conclusion reached by the trial judge is a reasonable interpretation of the evidence and should not be disturbed by us.

The appeal of Loyd C. Fox is dismissed, and the judgment appealed by Sherwin-Williams Company is affirmed at its cost.


author: HALL, Judge.

text:
    Tommy Lee THOMPSON, Plaintiff-Appellee, v. SOUTHERN CASUALTY INSURANCE COMPANY and Clyde Sullivan, Inc., Defendants-Appellants.
    No. 13289.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendants-appellants.
    Thomas & Dunahoe by Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

This is a suit for workmen’s compensation benefits by a 37 year old log cutter. The trial judge found that plaintiff was totally and permanently disabled, awarded benefits accordingly, but denied penalties and attorney’s fees. Defendants appealed. Plaintiff answered the appeal, claiming that he is entitled to penalties and attorney’s fees. We affirm the trial court judgment.

Plaintiff was injured at work in February, 1974, when a tree limb fell and hit him on the back of the neck. The falling limb fractured plaintiff’s sixth cervical vertebra. While being treated by Dr. Frank Cline, an orthopedic surgeon, and Dr. George Beach, a neurosurgeon, plaintiff continued to work until November, 1974, but with numerous complaints of pain during this period. Dr. Beach diagnosed a nerve root compression syndrome, and arranged for further tests. As a result of these tests, plaintiff underwent a cervical laminectomy on November 26, 1974. Compensation benefits were paid from that time until November, 1975.

Plaintiff continued to suffer pain in his left arm and leg whenever he rotated or extended his neck. In November, 1975, he was discharged by his treating physicians, who agreed that since they could find no objective basis for plaintiff’s complaints of pain, plaintiff could return to work. The defendant insurance company ceased paying plaintiff compensation benefits at that time.

Following plaintiff’s discharge by Dr. Cline and Dr. Beach, plaintiff consulted Dr. Ward Barr, a neurosurgeon in Shreveport. Dr. Barr diagnosed plaintiff’s problem as abnormal mobility in his neck, caused either by the original injury or by the laminecto-my. He prescribed a cervical brace for plaintiff to wear. Plaintiff has worn the neck brace continuously since that time, and Dr. Barr testified by deposition that the brace has improved plaintiff’s condition. However, he did not feel that plaintiff could return to strenuous physical labor. Plaintiff’s testimony is that he is incapable of performing the duties of a log cutter due to the pain involved in moving his neck or raising his arms.

Defendants contest the trial court finding of permanent and total disability, relying on the reports of the treating physicians that plaintiff’s complaints were far out of proportion to any objective physical findings. These two doctors did not testify at trial or by deposition. Neither doctor examined the plaintiff after discharge from treatment in November, 1975. Dr. Barr, a qualified neurosurgeon, testified by deposition that plaintiff is disabled. Whether pain is substantial enough to be disabling is an issue to be decided by the trier of fact on the basis of a preponderance of the medical and lay evidence. Lucas v. Insurance Company of North America, 342 So.2d 591 (La. 1977); Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975). This decision of the trier of fact was grounded on a reasonable evidentiary basis, including an evaluation of the credibility of plaintiff’s complaints. We find no manifest error in that decision.

Plaintiff’s demands for penalties and attorney’s fees are based on the insurance company’s failure to resume benefits upon receiving Dr. Barr’s report. After the report was received, it was sent to Dr. Cline, who stated that Dr. Barr’s treatment was logical, but that he thought it was of dubious value in the long-term treatment of this patient. Dr. Cline repeated his belief that plaintiff’s complaints of pain were out of proportion to objective physical findings. The insurance company then refused to resume payments.

An insurer has the right to cease payment of benefits upon being notified by the treating physician that the employee is able to return to work. However, if an insurer subsequently receives medical information indisputably showing disability at a subsequent date, the insurer may not avoid penalties for arbitrary nonpayment by blindly relying on the earlier report. Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976).

In the instant case, the insurer relayed Dr. Barr’s report to Dr. Cline. Dr. Cline’s reply clearly indicated that he was doubtful about the complaints and the benefit of further treatment. Dr. Barr’s report itself was not emphatic as to continued disability. These facts distinguish this case from the Walker case. There was a reasonable basis for the defendant’s refusal to resume payment of compensation benefits. We find no error in the refusal of the trial court to award penalties and attorney’s fees.

For the reasons assigned, the judgment of the district court is affirmed at appellants’ costs.

Affirmed.


author: BOLIN, Judge.

text:
    Charles M. TOLAR, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.
    No. 13290.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.

      Foye L. Lowe, Jr., Baton Rouge, for defendant-appellant.
    Baker, Culpepper & Bronson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

Concluding that the State of Louisiana, Department of Public Safety, had unlawfully deprived plaintiff of his automobile driver’s license and license plate, the trial court ordered their immediate return. Defendant appeals and we affirm.

After his involvement in an automobile accident in 1974, plaintiff submitted to a medical examination which disclosed a history of grand mal epilepsy. Acting on this information, the Department of Public Safety advised plaintiff that his driver’s license was to be suspended pursuant to Louisiana Revised Statutes 32:424.

Plaintiff requested an administrative hearing on the pending withdrawal of motor vehicle privileges; this hearing was scheduled and notice was given. Plaintiff then requested the removal of the hearing to a more convenient location; the record indicates no response to this latter request. However, the originally scheduled hearing was conducted in plaintiff’s absence.

Plaintiff later settled, to the Department’s satisfaction, the property damage claim resulting from his accident.

There is some evidence that the Department scheduled another hearing, the purpose of which remains unclear. One week prior to this hearing a state trooper visited plaintiff’s home and took plaintiff’s driver’s license and the license plate from his vehicle. Plaintiff sued the Department for damages and caused a rule to issue ordering the Department to show cause why his driving privileges should not be restored. After a hearing on this rule the trial court, finding that plaintiff had been deprived of due process because he was not afforded the opportunity to refute the epilepsy charges, ordered the return of his driver’s license and license plate. Since the Department appealed only from this order, the issue of damages is not before us.

We agree with the trial court, basing our decision on the Department’s failure to comply with the notice requirement of Louisiana Revised Statutes 32:414(E).

The record indicates that plaintiff received no notice, written or otherwise, of the Department’s final decision to suspend his driving privileges. The statute directs that such notice shall be given by certified mail. Only then will the 30-day period for requesting appropriate judicial review commence to run. Since the Department did not comply with the clear statutory directive, the trial court was correct in ordering the return of plaintiff’s driver’s license and license plate.

We need not inquire into the adequacy of findings made by the Department concerning plaintiff’s lack of competency to drive, nor whether the Department carried its burden of proof at the hearing in the district court, as required by Watson v. State, Department of Public Safety, 324 So.2d 547 (La.App.2d Cir., 1975).

The judgment is affirmed and the State of Louisiana, Department of Public Safety, is assessed with whatever costs it is legally liable to pay.

      . La.R.S. 32:424 provides:
      The department, having good cause to believe that a licensed driver or chauffeur is incompetent or otherwise not qualified to be licensed, may upon written notice of at least ten days to the licensee require him to submit to an examination. Upon the conclusion of such examination the department shall take action as may be appropriate and may suspend or revoke the license of such person or permit him to retain such license, or may issue a license subject to restrictions as permitted under R.S. 32:423. Refusal or neglect of the licensee to submit to examination shall be ground for suspension or revocation of his license.

      . La.R.S. 32:414(E):
      Upon the conclusion of such investigation [referring to subsection D], the person holding such investigation shall prepare findings based upon the evidence received and considered. If the findings are to the effect that the person referred to herein is incompetent or is unfit to operate a motor vehicle upon any grounds upon which license may be refused, as stated in this Chapter, the department, upon a review of such findings, shall have authority to forthwith revoke the license of such person, or if the findings are to the effect that the person therein referred to has by reason of negligence or reckless driving endangered life, limb, or property or has thereby caused loss of life or injury to person or property, the department, upon a review of such findings, shall have power to suspend the license of such person for a period not to exceed six months, or may revoke such license, and in either event shall require that such license be surrendered to the department. For cause satisfactory to the department, it is hereby authorized to suspend, cancel, or revoke the license of any person for a period of not more than one year. Any person whose license has been suspended, cancelled or revoked by the department shall be notified of such suspension, cancellation or revocation in

        writing by the department, which notice shall be sent by certified mail to the last address furnished by such person; whereupon the said person shall within five days return his or her license to the department. The failure on the part of any person to comply with this provision shall be punishable as herein provided. Any person denied license or whose license has been suspended, cancelled or revoked shall have the right to file an application within thirty days thereafter for a hearing before the district court of the parish in which the applicant resides, and such court is vested with jurisdiction to set the matter for hearing in open court upon ten days written notice to the department, and thereupon to determine whether the person is entitled to a license or is subject to suspension, cancellation or revocation of license under the provisions of this Chapter, and appeal from the district Qourt may be taken to any court of competent appellate jurisdiction. (Emphasis added)

      . See Harrison v. State, Department of Public Safety, Drivers License Division, 298 So.2d 312 (La.App. 4th Cir., 1974), interpreting a parallel provision of the implied consent law, R.S. 32:668.


author: JONES, Judge.

text:
    Floyd E. TUBBS, Plaintiff-Appellant, v. LOUISIANA POWER & LIGHT COMPANY, Defendant-Appellee.
    No. 13291.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by Stephen E. Broyles, Monroe, for defendant-ap-pellee.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff brought suit against Louisiana Power and Light Company, claiming damages arising from defendant having disconnected plaintiffs electrical service for a short period of time. The lower court granted defendant’s motion for a summary judgment and dismissed plaintiff’s suit. Plaintiff appeals and we affirm.

Plaintiff and his former wife obtained electrical service in plaintiff’s name from defendant in 1973. Because of a marital dispute, plaintiff left the marital domicile in January, 1974. When service was terminated to the domicile in July, 1974, there remained an unpaid balance of $51.43. In May, 1975, plaintiff’s present wife obtained electric service in plaintiff’s name. When plaintiff and his wife returned to defendant’s offices several weeks later in connection with a billing problem, plaintiff was approached by an employee of defendant concerning the unpaid amount of his earlier account. When plaintiff stated this bill was incurred by his former wife after he left the marital domicile and he would not pay it, defendant’s employees told plaintiff if left unpaid this past due amount would be added to his current electric bill.

When plaintiff received his October electrical bill it included $51.43 as a past due balance. Attached to the bill was a “Notice of Past Due Account”, which stated that plaintiff’s electrical service would be disconnected if the past due amount was not paid by October 17. Plaintiff contacted his attorney who wrote defendant concerning the dispute. Defendant did not reply, and when plaintiff had not paid the bill timely, defendant disconnected plaintiff’s electrical service. The electrical service remained off from approximately 10:00 A.M. until 6:30 or 7:00 P.M. Electrical service was resumed only after plaintiff paid the past due bill.

Plaintiff filed suit, asking for $10,000 in general damages for inconveniences, humiliation, and damage to credit reputation. Special damages were claimed by plaintiff for meat stored in a freezer which plaintiff’s family was forced to prematurely consume because it had thawed.

After depositions were taken of plaintiff and his present wife, defendant moved for a summary judgment. Attached to the motion were affidavits and certified copies of orders of the Louisiana Public Service Commission.

The depositions, affidavits and orders established plaintiff had previously obtained an account with defendant and $51.43 was still due on that account; plaintiff never informed defendant at the time he left his marital domicile that he no longer lived there and would not be responsible for any amounts incurred for services rendered to his former residence; plaintiff was notified of this past due balance shortly after opening a new account with defendant; after plaintiff had been notified of this past due amount, the unpaid balance was transferred to plaintiff’s current account; defendant followed the regulations of the Louisiana Public Service Commission in notifying plaintiff service would be discontinued if the past due amount was not paid; electrical service to plaintiff’s residence was discontinued on October 21,1976 and after the previous balance of $51.43 was paid, service was restored on October 21. Plaintiff offered no affidavits or other sworn statements in opposition to defendant’s motion.

When plaintiff contracted with defendant to supply electrical service, he remained under an obligation to pay for all services rendered until he notified defendant that he was no longer responsible for services rendered to that address or until defendant received knowledge of facts which would reasonably lead to that conclusion. Cf. Neiman-Marcus Company v. Viser, 140 So.2d 762 (La.App., 2d Cir. 1962); Alphonse Brenner Company, Inc. v. Dickerson, 283 So.2d 849 (La.App., 2d Cir. 1973). The affidavits offered by defendant in support of the motion for summary judgment expressly state neither defendant nor its employees were given notice of plaintiff’s intent to remove himself from liability on the account standing in his name. Plaintiff admits in his deposition that he gave no such notice. The affidavits also expressly state neither defendant nor its employees were aware of any facts which would have indicated plaintiff would not have intended to remain liable on his account.

Plaintiff could not rest on mere allegations or denials in his pleadings to negate statements in defendant’s affidavits. LSA-C.C.P. Art. 967. Since plaintiff did not establish there was a genuine issue of material fact, the trial court correctly found defendant established it was entitled to judgment as a matter of law. LSA-C.C.P. Art. 966. See Sawyer v. Central Louisiana Electric Company, 136 So.2d 153 (La.App., 3d Cir. 1961).

For the foregoing reasons, the judgment of the trial court is affirmed, appellant to pay all costs.

Affirmed.

      . * * * * * *
      “When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”
      * * * * * *


text:
    Eddie NAMIE et ux., Plaintiffs-Appellants, v. W. M. MILAM & SON, INC., Defendant-Appellee.
    No. 13292.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.
    Writ Refused Nov. 11, 1977.

      Baker, Culpepper & Brunson by James R. Hatch, Jonesboro, for plaintiffs-appellants.
    Bice, Russell & Allen by William M. Russell, III, Winnfield, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

After plaintiffs discovered that beetles had done extensive damage to the floor of their commercial building, they sued their former tenant, alleging its liability for the damage under the terms of written agreements governing the occupancy of the building. Defendant contended the lease agreement was the controlling instrument and that it imposed no liability on the lessee for beetle damage. The lower court agreed with defendant and rejected plaintiffs’ demands. Plaintiffs appeal and we affirm.

The issue is whether the owners of the commercial building or their former tenant is responsible for floor damage caused by beetles.

In 1961 defendant occupied the premises under an assignment of a written lease. At that time it also negotiated an agreement for the purchase of merchandise and an option to renew the lease for five years. After installing a plywood and tile floor and making other alterations, defendant commenced business on the premises. It exercised the option to renew, and vacated the building in 1976. Plaintiffs later discovered" insect damage to the floor, made demand on defendant for the cost of repair, and filed this lawsuit.

The trial court found the case was governed by the provisions in the documents signed by the parties. The original lease agreement contained the following:

In consideration of said demise and lease, the Tenant covenants and agrees:
(b) . . . at the expiration of said term to quit and surrender said premises in good order and condition, ordinary wear and tear, and damage by fire, flood, act of God, termites, other casualty, or the elements excepted. (Emphasis added)

The trial court was correct in finding that “other casualty” encompassed the beetle infestation here. Furthermore, termite damage includes, in its common understanding, damage done by beetles. See Blum v. Marrero, 346 So.2d 356 (La.App. 4th Cir., 1977).

The previously quoted clause exonerates defendant from liability for the insect-caused damage if the written lease is the controlling document. Plaintiffs argue, however, that the infestation resulted from defendant’s alterations to the building; that, therefore, defendant’s liability attaches under the terms of the merchandising agreement, which provides in part:

The vendee herein further agrees that it is to make certain alterations in the said building and structure and that in the event that any damage is caused the vendor herein ... it will repair the same and place the building in the same condition as it was before the said damage was caused at no cost or expense to the lessor and to pay for any damages caused by its neglect in making such alterations. (Emphasis added)

The trial court correctly concluded this provision imposed liability on the tenant for damages resulting directly from the alterations (i. e., the laying of the new plywood and tile floor), but did not cover liability for damage caused when insects later infested the flooring. Plaintiffs’ experts speculated that the beetles may have been introduced when untreated plywood was used in the construction of the floor. There is inadequate proof as to when the infestation actually began or whether special treatment of the plywood would have prevented the destruction.

We agree with the lower court that the parties intended the written lease, not the subsequently negotiated merchandising agreement, to govern liability for the damages incurred.

The judgment is affirmed at appellants’ cost.


text:
    W. D. KING, King Plaza, Inc. and King Floral Supply, Inc., Plaintiffs-Appellants-Appellees, v. ALLSTATE INSURANCE COMPANY, Inez D. Urbanic, Individually and as Administratrix of the Succession of Frank A. Urbanic, Charlotte O. Rogers and Commercial Union Insurance Company, Defendants-Appellants-Appellees. Frank A. URBANIC et ux., Plaintiffs-Appellants, v. COMMERCIAL UNION INSURANCE COMPANY, Charlotte O. Rogers and James L. Rogers, Defendants-Appellees. FLORIST MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Inez D. Urbanic, Individually and as Administratrix of the Succession of Frank A. Urbanic, Commercial Union Insurance Company, Charlotte O. Rogers and James L. Rogers, Defendants-Appellants.
    Nos. 13293-13295.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearings Denied Sept. 26, 1977.
    Writ Refused Nov. 11, 1977.

      Jerry Kircus, Shreveport, for plaintiffs-appellants-appellees, W. D. King, King Plaza, Inc. and King Floral Supply, Inc.
    T. K. Giddens, Jr., Wm. Robert McKenzie, Shreveport, Nelson & Achee, Ltd. by Roland J. Achee, Shreveport, for Allstate Ins. Co. and Inez D. Urbanic, Individually and as Administratrix of the Succession of Frank A. Urbanic.
    Cook, Clark, Egan, Yancey & King by Benjamin C. King, Shreveport, for Charlotte 0. Rogers, Commercial Union Ins. Co., and James L. Rogers.
    Feist, Schober & Howell by Malcolm W. Feist, Shreveport, for plaintiff-appellee, Florist Mut. Ins. Co.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

These consolidated suits arise out of an intersectional collision between automobiles driven by Mrs. Charlotte O. Rogers and Mrs. Inez D. Urbanic, with Mrs. Urbanic’s automobile ultimately crashing into a building owned by King Plaza, Inc. The trial court found both drivers negligent. The building owner and its insurer were awarded damages against both drivers and their insurers. Demands for loss of earnings by W. D. King and a floral supply company owned by him were rejected. Mrs. Urbanic’s demands for damages against Mrs. Rogers and her insurer were rejected. The losing parties in each case appealed. For reasons set forth in this opinion, we reverse the finding of negligence on the part of Mrs. Urbanic, reversing the judgments against her and her insurer and rendering judgment in her favor for damages.

The initial collision occurred at the intersection of Hearne Avenue and Hillcrest Street in Shreveport. Hearne is a major thoroughfare with two northbound and two southbound lanes, divided by a median. Hillcrest is a two-lane side street running east and west, with a stop sign at its intersection with Hearne. The Urbanic automobile was traveling north on Hearne. The Rogers vehicle was traveling west on Hill-crest and made a right turn north on Hearne.

Mrs. Rogers testified she stopped at the stop sign and waited for northbound traffic on Hearne to clear. She saw a blue car traveling in the inside lane north on Hearne about a block to the south. She commenced her right turn on Hearne, the blue car being about half a block to the south and still in the inside lane. She completed the right turn into the outside northbound lane of Hearne and traveled about a car length when her automobile was struck on the left side near the front by the Urbanic automobile, which then crossed the median, the southbound lanes of Hearne, a parking lot and crashed into the King Florist building on the west side of Hearne. Mrs. Rogers did not see the car that she collided with and could not say it was the same blue car she saw traveling north on Hearne.

Mrs. Urbanic testified she entered Hearne in her blue automobile from a driveway on the east side of Hearne about half a block south of Hillcrest. After waiting for traffic to clear, she made a right turn into the inside northbound lane of Hearne, behind another blue automobile traveling north. She got into the inside lane because it was her intention to make a left turn off of Hearne several blocks farther north. She noticed the Rogers automobile approaching Hearne on Hillcrest at a faster speed than seemed appropriate in order for the car to stop at the stop sign. She stayed in the left-hand lane and the next thing she knew her automobile was struck on the right side by the Rogers automobile. She then tried unsuccessfully to apply her brakes, lost control of the car which went across the median, ducked under the dashboard to protect herself, and the car ended up hitting the King Florist building.

A disinterested eyewitness, Herschel W. Greenway, driving a blue car with a white top, testified he was traveling north on Hearne several hundred yards south of the Hillcrest intersection, rushing to take his injured son to the hospital. He saw the Urbanic automobile straddling the center line between the two northbound lanes of Hearne and saw Mrs. Rogers’ automobile come out of Hillcrest and strike the Urbanic automobile. His observation was that Mrs. Rogers did not stop at the stop sign.

The investigating police officer established the point of impact as being in the outside northbound lane of Hearne, at about the north line of Hillcrest. He testified Mrs. Urbanic told him after the accident she was changing lanes at the time of the accident.

The trial judge in written reasons for judgment found there was evidence that Mrs. Rogers did not stop before entering Hearne, contrary to her testimony, and evidence that Mrs. Urbanic was turning from the inside to the outside or right lane at the time of the impact, contrary to her testimony. From this evidence, the trial judge concluded that both drivers were negligent and the ensuing damages were the result thereof.

Clearly, Mrs. Rogers was negligent in entering Hearne in the face of oncoming northbound traffic, regardless of whether Mrs. Urbanic was in the inside or outside lane, and regardless of whether Mrs. Rogers did or did not stop before entering the right-of-way street. There is no evidence to support the contention of Mrs. Rogers and her insurer that Mrs. Urbanic was traveling at an excessive rate of speed. The blue car seen by Mrs. Rogers could not have been the Urbanic car because Mrs. Rogers placed it more than a block to the south when she first saw it, but Mrs. Ur-banic entered Hearne only half a block to the south.

Although there is some evidence that might justify the trial court’s finding that Mrs. Urbanic changed lanes, the evidence does not support the conclusion that she was negligent. There is no prohibition against a motorist changing lanes on a multiple-lane street. The evidence does not show, and the trial court did not find, that Mrs. Rogers had already entered Hearne when Mrs. Urbanic changed lanes. The point of impact near the north line of the side street and the area of damage to the two automobiles indicate otherwise. The disinterested eyewitness testified Mrs. Ur-banic was straddling the line between the two northbound lanes, which coincides with the established point of impact. Regardless of whether Mrs. Urbanic changed lanes, the facts are that Mrs. Rogers entered the right-of-way street and collided with the Urbanic vehicle which was proceeding legally on the right-of-way street. The evidence does not establish any negligent actions on the part of Mrs. Urbanic that contributed to the accident.

The evidence supports the trial court’s finding that the negligence of Mrs. Rogers was a legal cause of the damage to the building. The collision caused Mrs. Ur-banic to lose control of her automobile, a natural and expectable consequence of the collision brought about by Mrs. Rogers’ negligence. When Mrs. Urbanic was unable to bring her car under control and crossed the median in the path of southbound traffic, her abandonment of the steering wheel and placing herself under the dashboard for protection in a perilous situation was not unreasonable. This action did not serve to break the causal relationship between Mrs. Rogers’ negligence and the damage to the building. The judgments in favor of the building owner and its insurer against Mrs. Rogers and her insurer are correct.

Mrs. Urbanic received emergency treatment of seemingly minor injuries at the hospital and, although her back was hurting, she was released to go home. Her pain increased and the next morning she saw Dr. Harold Bicknell, an orthopedic specialist. He diagnosed her injury as acute musculo-ligamentous strain to the thoracic and lumbar areas of the spine and prescribed muscle relaxant medication and sedation. X-rays showed considerable osteoporosis with some osteoarthritis in the areas. She was hospitalized for four days and then stayed in bed at home for ten days to two weeks. Mrs. Urbanic saw Dr. Bicknell regularly from the time of the accident in January, 1975, through June, 1976, complaining of back pain for which she was given injections. Although 74 years of age at the time of the accident, Mrs. Urbanic was very active and since the accident her activities have been somewhat restricted.

We fix the award for her pain and suffering at $7,500. Compare Givans v. T & M Fertilizer Co., 340 So.2d 1057 (La.App. 1st Cir. 1976), where a $10,000 award for similar injuries was affirmed. Special damages were established as $395 doctor’s charges, $378 hospital charges; $196.66 medicine, and $100 deductible damage to the automobile.

No issue is made on appeal as to the amount of damages awarded to King Florist and its insurer. No brief has been filed on behalf of W. D. King or his supply company in support of their appeal of the rejection of their demands, which will not be considered.

In Suit No. 13,293, the judgment in favor of plaintiff, King Plaza, Inc., against defendants, Inez D. Urbanic and Allstate Insurance Company, is reversed and set aside and judgment is rendered rejecting the demands of said plaintiff against said defendants. Otherwise, the judgment of the district court is affirmed. Costs of the appeal are assessed to the defendants, Commercial Union Insurance Company and Charlotte O. Rogers.

In Suit No. 13,294, the judgment is reversed and set aside and judgment is rendered in favor of plaintiff, Inez D. Urbanic, individually, against defendants, James L. Rogers, Charlotte O. Rogers and Commercial Union Insurance Company, in solido, in the amount of $7,500, and in favor of plaintiff, Inez D. Urbanic, as administratrix of the Succession of Frank A. Urbanic, against the said defendants, in solido, in the amount of $1,069.66, together with legal interest on said amounts from judicial demand until paid, and all costs of this suit including the costs of appeal.

In Suit No. 13,295, the judgment in favor of plaintiff, Florist Mutual Insurance Company, against defendants, Allstate Insurance Company and Inez D. Urbanic, individually and as administratrix of the Succession of Frank A. Urbanic, is reversed and set aside and judgment is rendered rejecting the demands of said plaintiff against said defendant. The judgment is otherwise affirmed. Costs of the appeal are assessed to defendants, Commercial Union Insurance Company, James L. Rogers and Charlotte O. Rogers.


text:
    Ralph E. TILLY, Plaintiff-Appellant, v. NORTH LOUISIANA PURE MILK PRODUCERS ASSOC., INC., Defendant-Appellee.
    No. 13296.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.

      James B. Wells & Associates by A. R. Snell, Bossier City, for plaintiff-appellant.
    Pugh & Nelson by John L. Hammons, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiff — a member of the defendant association — appeals from a judgment rejecting his demands to enjoin the enforcement of an association bylaw which imposes conditions on a member’s sale of his privilege or right of selling a specified daily quantity of milk to the association. We affirm.

The association, made up of individual milk producers, assigns to each of its members the right or privilege of selling to the association a specified daily quantity of milk for resale by the association to dairy processors. This is called the member’s “base.” The association periodically negotiates with dairy processors for the price and the daily quantity of milk desired by each processor.

When plaintiff joined the association in 1973, the bylaw in question allowed a member to sell his base with but few restrictive conditions. In 1975, an amendment to the bylaw, passed by the membership of the association, increased the conditions imposed upon the sale of a member’s base by providing that the base could be sold only on a certain form containing pertinent regulations of the association and requiring that the Board of Directors of the association formally approve the sale.

Plaintiff was among 175 members who voted for the 1975 bylaw amendment as against five members who voted against. Plaintiff does not contend that the amendment was enacted without authority or that its enactment was procedurally defective. His contention is that the bylaw should not be given retroactive effect because it would unconstitutionally impair his vested “property” right to transfer his base under less restrictive conditions in effect before the 1975 amendment when he became a member in 1973. Plaintiff concedes that he did not submit to the Board of Directors the form required for approval of the sale of his base.

We do not find the bylaw in question to have been retroactively applied so as to unconstitutionally impair any vested right or contract plaintiff had with the association. Plaintiff’s base and right of disposition were creatures of the association. Plaintiff’s rights were subject to the greater right or power of the association through its membership, to modify the rights it created. The amended bylaw was clearly intended to apply to a sale of a member’s base arising after the amendment even though the base as a property right of a member, was created before. Plaintiff did not attempt to exercise his right of disposition until after enactment of the bylaw.

Even should we have found that the bylaw was retroactively applied, retro-activity is not always synonymous with unconstitutional impairment. Bylaws are to be construed in accord with principles applicable to the construction and interpretation of statutes and contracts. If the bylaw or statute is not otherwise legally forbidden, the greater and inherent power of the corporate body (in this case the association) to modify rights it has created must be weighed against the constitutional limitation of impairment of contract. The motive, the policy, the object that characterizes the legislative act must be looked to. Every modification of a contractual right or the alteration of the manner of exercising rights or privileges does not amount to a violation of constitutional prohibitions against contractual impairment. See City of El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965). Here, the association did not repudiate or destroy the base it had created or deny any means of its members exercising rights or privileges of disposition. The bylaw simply requires that the regulations of the association pertaining to the base be contained in a transfer form under which the base may be sold and that the sale be approved by the Board of Directors. The bylaw additionally provides means to protect against the arbitrary or unreasonable withholding of approval of a sale of a member’s base by requiring a hearing before the Board if approval is withheld. Under these circumstances, enforcement of the bylaw will be upheld.

At appellant’s cost, AFFIRMED.


text:
    Glen R. FOLDEN, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY and Futch Motor Company, Inc., Defendants-Appellees.
    No. 13297.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.
    Writ Refused Nov. 11, 1977.

      Baker, Culpepper & Brunson by James R. Hatch, Jonesboro, for appellant.
    Gold, Little, Simon, Weems & Bruser by Edward E. Rundell, Alexandria, for appel-lee.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff appeals from a judgment denying him workmen’s compensation benefits. We affirm.

Plaintiff was employed by Futch Motor Company as a mechanic’s helper. He quit this job on the morning of Wednesday, May 12, because of a dispute over the type of work he was required to perform. On Friday, May 14, plaintiff underwent a pre-em-ployment physical as a prerequisite to obtaining a new job. The doctor conducting this examination found plaintiff was suffering from an inguinal hernia. Plaintiff contacted the president of Futch Motor Company on Saturday, May 15, informing him of the diagnosis and of plaintiff’s belief the injury was job-related. Plaintiff brought this suit after a claim had been submitted to Travelers Insurance Company, the workmen’s compensation carrier for Futch Motor Company, and benefits were not forthcoming.

Plaintiff testified at trial that he felt a burning, pulling sensation in his lower abdomen while moving a heavy motor block at work on the afternoon of Monday, May 10. Plaintiff’s wife testified to her husband’s soreness and swelling on Monday night and for several days thereafter.

Plaintiff’s co-workers testified they never heard plaintiff mention this accident or complain of pain. Plaintiff never reported the accident to his foreman or any other supervisory personnel as required by long established company policy. Plaintiff admitted he did not go to a doctor for the purpose of diagnosing or treating the injury, but that the nature of the injury was discovered only through a pre-employment physical examination required of him in applying for a new job.

The deposition of the examining physician and medical records of later treating physicians established plaintiff did have an inguinal hernia but did not establish the cause of the injury. Plaintiff did not give a job-related history of his injury to any of the physicians.

The trial court held plaintiff did not establish by a preponderance of the evidence plaintiff’s inguinal hernia resulted from injury by an accident arising out of the course and scope of his employment. Plaintiff complains the trial court did not give sufficient weight to the testimony of plaintiff and his wife.

In all claims for inguinal hernia, it must be established by a preponderance of the evidence the hernia resulted from injury by accident arising out of and in the course and scope of employment; the accident was reported promptly to the employer, and the employee was attended by a licensed physician within 30 days thereafter. LSA-R.S. 23:1221(4)(q)(i). The testimony of plaintiff alone may be sufficient to prove the accident occurred provided his statements are corroborated by the surrounding circumstances. Womack v. Pickett, 283 So.2d 852 (La.App., 2d Cir. 1973); Duncan v. Hardware Mutual Casualty Company, 275 So.2d 462 (La.App., 2d Cir. 1973).

After examining the record, we cannot say the trial court manifestly erred in determining plaintiff’s statements were not corroborated by the surrounding circumstances and he'failed to prove his case by a preponderance of the evidence, especially in light of the trial court’s better capacity to evaluate the credibility of witnesses. Merrill v. Sunbeam Corporation, 344 So.2d 445 (La.App., 2d Cir. 1977); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the foregoing reasons, the judgment of the trial court is affirmed, appellant to pay all costs of this appeal.


text:
    Fred HENRY, Plaintiff-Appellant, v. CITY OF MONROE et al., Defendants-Appellees.
    No. 13298.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.

      Guerriero & Placke by Joe D. Guerriero, Monroe, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by Charles H. Heck, Monroe, for defendants-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff appeals from a judgment denying his request for an order compelling the City of Monroe to change the zoning classification of certain property owned by him from B-3 (general business) to R-l (single family residence). We affirm.

Plaintiff is the owner of a 4.33 acre tract of land within the city limits comprising a city block. The land is located within a 20-25 acre tract zoned B-3 and has been so zoned for over 15 years. During this period no business opened on any part of the 20-25 acre tract.

In November, 1975, plaintiff filed an application for a zoning amendment with the Monroe-Ouachita Regional Planning Commission to have the zoning classification changed from B-3 to R-l. After study the Commission approved the proposal and submitted it to the Monroe City Council, which refused to approve the zoning change. Plaintiff brought this suit to compel the change.

The trial court found the evidence established a B-3 zoning classification for the tract was no longer appropriate. However, it also found there were cogent reasons against rezoning only plaintiff’s portion of this large tract into a single family residential classification, and the council’s action in refusing to rezone only this part was not so clearly arbitrary and capricious as to be unreasonable.

To prevail in an action to compel rezoning, landowners must prove the zoning authority’s action was arbitrary and capricious. Paternostro v. Parish of Jefferson, 289 So.2d 327 (La.App., 4th Cir. 1973). This burden applies to the zoning authority’s action in allowing the land to remain under one classification and in refusing to make the specific demanded change. Paternostro; supra.

George Parsons, Monroe City Planner, an eminently qualified expert in the field of zoning, testified the council was correct in refusing the change requested because single family dwellings should not be permitted in an area adjacent to land zoned B-3 (general business) because numerous business uses permitted in this classification are incompatible to single family dwellings (the example most frequently used during trial was an establishment selling alcoholic beverages for consumption on the premises). Vernon Mears, another well-qualified zoning expert familiar with plaintiff’s property and surrounding area, for the same reasons given by Parsons concurred with the decision of the City Council. These experts pointed out there should be a buffer between R-l and B-3 zones. The buffer may be an in-between zone which is less incompatible with B-3 zoning (example being R-2 multiple family development) and more compatible with R-l.

The rationale of Parsons and Mears was among reasons given by council members Harper and Prestridge for refusing to approve the zoning change requested.

Plaintiff failed to prove the City Council denied his request to rezone his property R-l because of opposition from people living in the area. The evidence established a reasonable basis for the Council’s refusal to rezone plaintiff’s city block R-l because such action would result in a single family residential development abutting on three sides an area available for development as general business.

We agree with the decision of the trial court that while plaintiff proved his property is not appropriately zoned B-3, he did not prove the Council acted arbitrarily and capriciously in refusing to change the classification of this small portion of a larger tract to R-l, or that no classification other than R-l is reasonable or appropriate for the tract. This determination is buttressed by the wide discretion permitted a legislative body such as the Monroe City Council in the performance of its duties, Hunter v. City of Shreveport, 216 So.2d 140 (La.App., 2d Cir. 1968), and the wide discretion we must give to the trial court’s evaluation of testimony and findings of fact. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the foregoing reasons, the judgment of the lower court is affirmed, appellant to pay all costs of this appeal.


text:
    Linda Gayle WEEKS, Plaintiff-Appellee, v. Tollie Melvin WEEKS, Defendant-Appellant.
    No. 13299.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.

      Cameron C. Minard, Columbia, for defendant-appellant.
    McKeithen, Bums & Lewellyan by Paul Wilkins, Columbia, for plaintiff-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

From a judgment making past due support awards executory and holding him in contempt, the husband appeals. We amend and affirm.

The wife first brought suit for separation and the husband later reconvened for a divorce on the grounds of adultery. Judgment was signed in October, 1976, on the wife’s pendente lite rule for support for herself and a minor child. New counsel employed by the husband filed a rule in November, 1976, to have the pendente lite awards set aside. At the trial of the merits of the demands of each party, the lower court ordered that the pendente lite awards would remain effective.

On January 6, 1977, the wife cited the husband for contempt and to have past due pendente lite support made executory. Also on January 6, 1977, the lower court rendered its decision on the merits and granted the husband a divorce and custody of the minor child of the marriage. Judgment on the merits, signed January 20, 1977, expressly terminated the pendente lite support awards as of January 6, 1977.

At a hearing on January 27, 1977, of the citation for contempt and to make past due support executory, the lower court found the husband in contempt and made executo-ry past due support in the amount of $886.56. On the husband’s appeal of this judgment, the wife answered, seeking damages and attorney’s fees for frivolous appeal, and legal interest from the dates the past due support became due.

The husband contends the motion to rescind the pendente lite support awards, filed by his new attorney in November, 1976, effectively suspended his obligation to comply with the pendente lite judgment. The law is otherwise. This type judgment is not suspended even by appeal. C.C.P. Art. 3943. The husband’s complaints regarding jurisdiction of the district court to render the October 1976 pendente lite judgment are also without merit. La.C.C. Art. 152; Hickman v. Hickman, 218 So.2d 48 (La.App. 3d Cir. 1969). On a motion for contempt and to make past due support awards executory, it is not a defense for the husband-judgment debtor to assert error of the lower court in its original granting of the awards. The husband’s obligation to pay pendente lite support continues while the merits of the case are being determined. Frazier v. Frazier, 347 So.2d 73 (La.App. 2d Cir. 1977). The husband has other remedies to modify or rescind such awards.

Here, the husband has not shown payment, legal excuse for nonpayment, or absolute or relative nullity of the pendente lite judgment. Civil contempt proceedings are governed by C.C.P. Arts. 221-227 and R.S. 13:4611. The husband was fined $250 and was sentenced to 30 days in jail, suspended upon his paying the past due amount ($886) within 15 days from the date that the executory judgment becomes final. In view of the husband’s blatant refusal to comply with the court order (I didn’t pay because I thought it “wasn’t right”), we find no abuse of discretion. Wall v. Wall, 230 So.2d 420 (La.App. 1st Cir. 1969).

Miller v. Miller, 321 So.2d 318 (La. 1975) held that legal interest should be awarded from the date each support installment became due. The wife prayed for interest from date of judicial demand. The monthly support award totaled $350. Our computation produces a different figure from that reached below.

October 21-31,1976 10 days (10/31) $112.90
November, December, 1976 700.00
January 1-6,1977 5 days (5/31) 56.45
TOTAL__-.$869.35

Since we shall amend the judgment to correct the error in calculation, we shall exercise our authority to award interest on each past due support payment from the date it became due rather than from judicial demand. C.C.P. Arts. 2164, 862.

The wife acknowledges our recent holding that attorney’s fees are not allowed in these circumstances. Stanfield v. Stanfield, 342 So.2d 1195 (La.App. 2d Cir. 1977). We also deny damages for frivolous appeal.

The judgment below is amended to $869.35, with legal interest on the monthly support award to be computed on the respective amounts which became due on October 31, November 30, December 31, 1976, and January 6, 1977. It is otherwise affirmed.

At appellant’s cost, AMENDED AND AFFIRMED.


text:
    Clarence L. SMITH, Plaintiff-Appellant, v. The TRAVELERS INSURANCE COMPANY and Schlumberger Well Services, Defendants-Appellees.
    No. 13300.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern by William P. Crews, Jr., Natchi-toches, for defendants-appellees.
    Before BOLIN, C. J., and PRICE and HALL, JJ.
   PRICE, Judge.

This is an action for workmen's compensation benefits brought by Clarence L. Smith against his employer, Schlumberger Well Services, and his employer’s insurer, The Travelers Insurance Company. The trial court rendered judgment rejecting plaintiff’s demands.

The sole issue on appeal is whether plaintiff has borne the burden of proving that he is presently disabled.

Smith was injured when a company truck in which he was riding overturned on Highway 174 in Red River Parish on August 17, 1975. He was paid compensation benefits of $65 per week until December 15,1975, at which time he was released by the treating physician as able to return to work. Plaintiff returned to the same work he was performing before the accident, and continued to work until April 27, 1976. He notified Schlumberger through his attorney on May 3, 1976, that he was disabled and demanded compensation payments be resumed. His request was rejected, and this action was instituted against Schlumberger. and Travelers for total disability benefits, penalties, and attorney’s fees.

Plaintiff contends that an injury to his back resulting from the accident continues to cause him such pain and discomfort that he is no longer able to perform his duties which require manual labor.

The crux of the case revolves around the conflicting opinions of two medical experts. Plaintiff’s expert, Dr. Bennett H. Young, an orthopedic surgeon, testified that Smith has either herniated discs or a thoracic outlet syndrome, and that in either case corrective surgery is necessary to prevent total disability.

Defendants’ expert, Dr. A. E. Dean, Jr., also an orthopedic surgeon, contends plaintiff’s symptoms are the residual effects from a cervical sprain and are not sufficient to disable him. Dr. Dean examined the report of an electromyelographic study and the X-rays relied on by Dr. Young and testified he could not confirm the diagnosis of probable herniated discs or a thoracic outlet syndrome.

The trial judge found the lay testimony presented by plaintiff to be of no value in resolving the conflict of medical opinions, and further found that plaintiff had not demonstrated by competent evidence that the reason for quitting the job in April 1975 was because of his alleged present physical inability.

We find this conclusion of the trial court to be supported by the evidence and in accord with the rule that in workmen’s compensation suits, as in other civil actions, plaintiff must establish his claim for benefits by a preponderance of the evidence.

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


text:
    Albert CLINTON et ux., Plaintiffs-Appellants, v. Randy BRAZZEL, d/b/a Randy’s Travel Town, Defendant-Appellee.
    No. 13301.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.

      Roy L. Brun, Shreveport, for plaintiffs-appellants.
    Joel M. Sermons, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

This is a suit in redhibition brought by the purchaser of a used van to rescind the sale and to recover the cash portion of the purchase price, damages, 'and attorney’s fees. The trial court ordered a reduction of $250 in the sale price and rejected plaintiffs’ request for rescission of the sale, damages, and attorney’s fees.

The issues presented on plaintiffs’ appeal are whether the trial court erred in not ordering rescission of the sale, and alternatively, whether a greater sum should have been awarded for quanti minoris.

Albert Clinton and his wife purchased a 1974 Dodge van from Randy’s Travel Town on April 24, 1976, for $4,860. On the Monday following the Saturday purchase, plaintiffs complained to defendant that the motor was not tuned properly and the air conditioning was defective. Other complaints were subsequently made in regard to the ignition, motor cover attachment, tires, radio, and the suspension system. Defendant made several attempts to correct the matters complained of by plaintiffs, and in fact, paid $127.50 of repairs at his own expense.

Plaintiffs’ subsequent request of June 17, 1976, to return the van was refused by defendant.

On June 21,1976, the van was seized in a foreclosure proceeding brought by the holder of a chattel mortgage executed by plaintiffs in connection with the purchase price of the vehicle.

On this same date, plaintiffs filed this action to rescind the sale. At that point in time the vehicle had been driven 4,625 miles by plaintiffs.

The primary issue is whether rescission of the sale or reduction of the price is the appropriate remedy. La.C.C. Art. 2543 confers upon the trial judge discretion to decree diminution of the purchase price rather than rescission of the sale. The only expert testimony offered by plaintiffs is that of Richard Oliver, a mechanic who examined the vehicle at plaintiffs’ request after it had been seized by the sheriff. An estimate of the repairs found necessary by Oliver would not exceed $250, or approximately five percent of the sale price. Therefore, we do not find the discretion of the trial judge was abused in ordering reduction of the price and in determining the amount of diminution. See Ark-La-Tex Builders & Realty v. Hoge, 344 So.2d 90 (La.App.2d Cir. 1977). The judgment appealed is affirmed at appellants’ cost.


text:
    Linda Robbins BARTON, Plaintiff-Appellant, v. Ronald BARTON, Defendant-Appellee.
    No. 13310.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    Sonny N. Stephens, Winnsboro, for plaintiff-appellant.
    Michael E. Kramer, Winnsboro, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff appeals from a judgment awarding $4,923 in liquidation of her one-half of the community interest in her former husband’s claim based upon injuries received while at work. We affirm.

During his marriage to plaintiff defendant was injured while on the job. Plaintiff and defendant subsequently obtained a judicial separation while defendant’s suit against his employer was pending. Defendant settled the suit prior to judgment for $50,000, of which he received $28,838.89 after payment of costs and attorney’s fees. Plaintiff filed this suit for an accounting of her community interest in the proceeds received. The case was submitted to the trial court on depositions and stipulations.

The trial court found plaintiff and defendant lived in community for 18 months following the accident, and plaintiff was precluded from working for 15 of those months. Since the parties stipulated plaintiff’s salary at the time of the accident was $15,000 per year, the trial court found $16,-410 of the settlement was for lost wages. Reducing this by a pro rata amount of 40% attorney’s fees incurred in obtaining this settlement, the amount of the community interest in the settlement was $9,846, which results in $4,923 attributable to plaintiff’s interest. The trial court held plaintiff did not present sufficient facts for the court to find any other portion of the settlement received by defendant was attributable to a claim of the former community.

The Louisiana Supreme Court recently clarified the jurisprudence in this area. In West v. Ortego, 325 So.2d 242 (La.1975), the court stated:

* * * [W]here a husband’s settlement monies, acquired after dissolution of the community, but based upon a pre-dissolution, accident-related cause of action, compensate for both pre-dissolution and post-dissolution losses, that portion of the settlement which compensates for post-dissolution losses falls into the separate estate of the husband.” Id. pp. 248, 249.

The court below, relying on West v. Ortego, found plaintiff did not establish that any of the settlement funds received by defendant, other than a sum which could be considered as settlement for “pre-dissolution” wages, was community property. Based upon the scant evidence in the record, such a finding is not manifestly erroneous.

For the foregoing reasons the judgment of the trial court is affirmed, appellant to pay all costs.

Affirmed.

      . Fifteen months at a yearly salary of $15,000 is $18,750. Reducing this by the workmen’s compensation paid to defendant, $2,340, leaves a remainder of $16,410 as salary lost because of this accident. The trial court did not attempt to prorate the costs that were incurred in connection with the settlement.

      . West calculated community interest on weekly amount received in compensation — not salary. Because there are so few facts established in this record it cannot be ascertained what elements of damages were included in the settlement. The payment of 40% attorney’s fees establishes the settlement was not based upon the Louisiana Workmen’s Compensation Law. - It is immaterial whether the award is excessive since the husband neither appealed nor answered the wife’s appeal.


text:
    Philip G. FINCHER et al., Plaintiff-Appellant, v. CLAIBORNE BUTANE COMPANY, INC., Defendant-Appellee.
    No. 13311.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.

      Shaw & Shaw by W. M. Shaw, Homer, for plaintiff-appellant.
    Blanchard, Walker, O’Quinn & Roberts by Clyde W. Thurmon, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

As minority stockholders in defendant corporation, plaintiffs appeal a judgment rejecting their demand that the corporation be placed in receivership because of alleged gross mismanagement by the majority stockholders as officers and directors of the corporation. We affirm.

After suit was filed on August 26, 1974, the original plaintiff’s wife died and her heirs to the community-owned stock were joined as parties plaintiff. We shall refer to plaintiffs in the singular case. Plaintiff’s demand is founded upon R.S. 12:151, which states in part:

“A. The court may . . . appoint a receiver . . . when it is made to appear .
“(1) . . . that the directors or officers are jeopardizing the rights of its shareholders ... by grossly mismanaging the business, or by committing gross and persistent ultra vires acts, or by wasting, misusing or misapplying the assets of the corporation.”

The lower court also rejected the corporation’s reconventional demand for attorney’s fees against plaintiff under R.S. 12:151(D), finding that the statutory requisite of bad faith had not been shown. We also affirm in this respect.

Original plaintiff is a brother-in-law to the president, principal stockholder of the corporation. The business of the corporation began as a partnership in 1945 and was incorporated in 1948. In 1950, the original plaintiff became an employee, stockholder, director, and officer (vice-president) of the corporation. He remained in this employment until he was terminated. Two weeks after his termination he filed suit against the corporation in 1974. He and his children own 21 percent of the corporate stock. The remaining stock is owned or controlled by the corporate president.

The lower court correctly set forth the applicable legal principles, against which plaintiff’s claims of six acts of gross mismanagement must be weighed. These principles, with citations omitted, are as follows:

“While the provisions of [the statute] set forth the causes for which a receivership may be sought by a shareholder, the appointment of a receiver is not mandatory but is subject to sound judicial discretion. In determining whether or not the facts justify and make advisable a receivership, in the absence of a clear showing of fraud or breach of trust the courts are slow to interfere, will order the appointment of a receiver only when it is manifest that it should be made, and are influenced by a consideration of whether such action would serve a useful purpose. This court will not disturb the ruling of the trial judge in his refusal to appoint a receiver except in a case where it clearly appears that the interests of the minority of stockholders are in imminent danger . ” Peiser v. Grand Isle, 221 La. 585, 60 So.2d 1 (1952).
“ . . . receivership of a corporation, as a remedy, looks only to the prevention of future injuries rather than to the redress of past grievances.” Kinnebrew v. Louisiana Ice Co., 216 La. 472, 43 So.2d 798 (1949).
“ ‘ . . . The effect of appointing a receiver being to take the property of the corporation out of the control of its own officers to whom it has been entrusted by its stockholders, the courts proceed with extreme caution in the exercise if so summary a power, and in construing such statutes they are inclined to give them a strict construction. * * *
‘A minority of the stockholders of a corporation is not entitled to a receiver because of dissatisfaction with the policy and management of a majority of the officers and directors in the absence of any showing of fraud or insolvency. And especially will the appointment of a receiver be denied where a corporation is solvent and its business prosperous, and it is not sought to have it wound up, since, in such case, the wrongs complained of may be remedied under the ordinary powers of a court of equity and without the appointment of a receiver. * * *
‘The appointing of a receiver to a healthy going corporation, is calculated to affect injuriously its business and affairs; and such should not be done where the complaining party has other adequate remedies. The statute under which the appointment in this case is sought should be strictly construed . . . ’ ” Reynaud v. Uncle Sam Planting & Mfg. Co., 152 La. 811, 94 So. 405 (1922).

The foregoing principles were approved in Coleman v. La Salle Creosoting Company, 129 So.2d 311 (La.App. 3d Cir. 1961).

It should be noted at this juncture that plaintiff, as vice-president, sales manager, and director of the corporation, was active in its management until he suffered a severe and disabling heart attack in 1972. Plaintiff remained an employee after his heart attack, although disabled from fully performing his duties, until his discharge in 1974.

The defendant corporation, for federal income tax purposes, is a small business— subchapter S corporation in which the stockholders served as employees and officers. Each stockholder, including plaintiff, at times requested and drew advances on expected dividends from the corporation. These advances, in essence, were loans by the corporation, for which the corporation charged five percent simple interest. At other times, on dividends declared but not immediately paid to the stockholders, the corporation was charged and eventually paid to the stockholders five percent interest. This five percent loan policy existed for about 20 years and was applied to the stockholders as well as to the corporation.

The lower court did not pass on the corporation’s contention that plaintiff, because of his participation in ratification or acquiescence of the policies of the corporation, was legally estopped to claim gross mismanagement. The lower court instead, considered the merits of each of plaintiff’s claims of gross mismanagement and found against plaintiff. We do not disapprove of the lower court’s approach because we find the record supports the lower court’s denial of plaintiff’s claims of gross mismanagement. We observe, however, that in any event, because of plaintiff’s participation in the management of the corporation as an officer, director and employee, and his failure to challenge existing corporate policy, plaintiff is estopped to complain of gross mismanagement.

THE ALLEGED ACTS OF GROSS MISMANAGEMENT

(1) Failure of the corporation to hold regular meetings of its stockholders and directors and to keep minutes thereof. In 1962, the former partner of the corporate president terminated his employment and stockholder relationship with the corporation. The stock of this former partner was eventually acquired by the corporate president and plaintiff. Before and since 1962, the stockholder-employees, who were also the directors and officers, consulted sometimes daily about corporate policy and affairs. There were few formal meetings at which minutes were kept.

The better practice is to conduct formal meetings and to keep minutes as our corporations law contemplates. The circumstances shown, with the stockholders being few and,(at the time complained of) friendly, do not constitute such acts of gross mismanagement which will compel receivership. Racoby v. Peoples Furniture Co., 175 La. 383, 143 So. 334 (1932); Shelton v. Destrehan Mercantile Co., 151 La. 808, 92 So. 344 (1922).

(2) The five percent loan policy. The record shows that every stockholder, including plaintiff, at one time or another had received advance dividends (loans) or had been owed declared dividends. At the time suit was filed, the corporate president, who, because of his majority ownership, was involved as a debtor or creditor of the corporation to a greater degree than plaintiff, was not a debtor, but a creditor of the corporation. Assuming that a loan to a stockholder is an act of mismanagement, we are not satisfied that receivership should follow in these circumstances. The corporation is shown to be solvent. There was no loan to any stockholder in existence at the time, or since, plaintiff filed suit. Receivership is granted in cases where there is imminent danger of the rights of minority stockholders being destroyed by a fraudulent or illegal practice intentionally designed to dissipate the assets of the corporation. West v. Certified Credit Corporation, 162 So.2d 589 (La.App. 2d Cir. 1964). Where the fraudulent or illegal intent is not present and the corporation is otherwise a solvent and going concern, injunction or other similar remedy, and not receivership, is the relief favored by law.

(3) Continuing payment of salaries and other benefits to corporate employees who are disabled or who are not performing their duties. Plaintiff’s complaint is particularly directed at the wife of the corporate president. It is shown that the wife was employed by the corporation as an accountant and stenographer from 1950 until June 30,1974. In 1973, she suffered a temporarily disabling illness and thereafter worked only intermittently at the office and at her home. During this approximate 18-month period, she was paid her usual salary and had the use of a corporate automobile.

The record also shows that this practice was generally followed for varying lengths of time as to other employees (even those who were not stockholders) who became wholly or partially disabled from performing their duties. Plaintiff himself was disabled in varying degree from fully performing his duties during the last two years of his employment and was similarly treated. Additionally, we observe that no employee was enjoying such privileges at the time suit was filed. We cannot and do not hold that such limited charitable and benevolent practices towards faithful and long-time employees constitute acts of mismanagement.

(4) The corporation’s dividend and salary policy and the employment of the sons of the corporate president. Plaintiff’s complaints in this area are of arbitrariness and unfairness. Until plaintiff’s employment was terminated all stockholders were employees of the corporation. Dividends were considered as a part of compensation for work done for the corporation and salaries were purposely kept low. In 1974, the corporation instituted the policy of retaining 20 percent of its profits as capital reserves. Plaintiff complains that this was a ruse to avoid paying dividends to him as a minority shareholder. We cannot agree. The testimony of the CPA’s, the corporate president, and the provisions of L.R.S. 12:62(B) indicate such a practice is not uncommon and is sound. Plaintiff’s equity in the corporation was proportionately increased by this practice.

Plaintiff also complains that two sons of the corporate president were employed by the corporation. Both sons were shown to be performing supervisory duties for the corporation as full-time employees when the suit was filed. One son earned $1,250 and the other $1,000 per month. The higher paid son is a graduate engineer. Plaintiff complains that these salaries and an increase in the salary of the corporate president to $1,500 monthly in 1974, arbitrarily and unfairly deprives him of dividends because the salary expense decreases corporate profits. We find the salaries to be commensurate with the work and responsibilities being fulfilled by the respective officer or employee. The hiring of a particular employee and the amount of compensation paid an employee are judged by their comparative reasonableness as against the duties and responsibilities being performed. The salaries in question we do not find excessive or unreasonable. Best v. Southern Hide Co., 170 La. 997,129 So. 614 (1930).

(5) Acquisition of an airplane. The corporation purchased a used airplane in 1972 for $19,000 and erected a hangar for it at a cost of $18,000. The plane has been used for business purposes about 70 percent of its flying time. The record shows that it is not uncommon to extend as a fringe benefit of employment, to key corporate employees the personal use of a company airplane when it is not being used for business purposes. Plaintiff’s other allegations of unreasonable personal use of corporate assets by the corporate president were correctly found unsupported.

(6) Other contentions of alleged breach of fiduciary duty by the corporate president. Clearly, a fiduciary relationship exists under L.R.S. 12:91. Plaintiff generally complains that he has been forced out of the corporation and unjustly deprived of his fair share of the corporate profit to the extent that a receiver should be appointed. The effect of receivership is a liquidation of the affairs of a corporation. Plaintiff’s brief shows that we are asked, in effect, to resolve a family dispute arising from the firing by a corporate president, majority stockholder, of his brother-in-law, corporate employee-minority stockholder:

“ . . . Although he resented and complained of many of these acts of mismanagement . . . [plaintiff] took no action while he was so employed . [a son of the corporate president] was employed and placed in training to take the plaintiff’s job. On August 16, 1974, plaintiff was . . . notified by [the corporate president] that he wished [plaintiff] to resign ... by the first of September.
* * * * * *
“After [the corporate president] refused (1) either to buy ... or sell . (2) refused to . exchange [stock] or (3) to offer any other reasonable solution . . . [plaintiff] consulted his attorneys .
“ . . . On August 20 ... a draft of ... a suit was prepared and forwarded . . . with a letter advising that . . . suit would be instituted unless the differences could be worked out in . . . (48) hours . . [s]uit was instituted on . August 26 [1974].”

Plaintiff asserts that the corporate president-majority stockholder has followed a “deliberate . . . ungrateful and selfish course of action ... in dealing with his close relatives and . . . business . . . associates . . . [and that] justice [is] called on to restrain the action of an arrogant, unprincipled and ungrateful corporate manager . . . ”

Plaintiff, as an employee, was not guaranteed indefinite employment by virtue of his status as a stockholder and director of the corporation. The power and authority of corporate management, of course within legal bounds of state and federal law, was vested in the corporate board of directors and its chief executive officer. This power includes the hiring and firing of corporate employees, the fixing of reasonable and not excessive salaries, the purchase and use of corporate assets, and the determination of when and what dividends shall be paid. With only 21 percent of the corporate stock, plaintiff is in the position of many other minority shareholders in other corporations where the majority shareholders adopt and follow policies which minority shareholders do not approve. See, for example, Goldb-lum v. Boyd, 341 So.2d 436, 442 (La.App. 2d Cir. 1977) wherein a “struggle between opposing groups of corporate shareholders to gain a majority vote to control the management of [a] corporation [was] viewed as a raw exercise in business maneuvering.”

The minority shareholder is not without his rights, even where the corporation is solvent. See O’Neal, supra, La. Business Corporations Law, L.R.S. 12:1, generally. Plaintiff cites five cases in which receivership was either granted or recognized as legally proper on the petition of a shareholder. These cases and their rationale were considered in West, cited below. There we said receivership was proper where the mismanagement complained of was “ . . . wilful and its purpose is to ruin the corporation . . . where the facts disclose a scheme on the part of the . majority stockholder to wreck the corporation and dissipate its assets.” 162 So.2d 595. The facts here do not support a finding that the majority shareholder-corporate president is following a scheme to wreck or ruin the corporation and dissipate its assets. The lower court did not make such a conclusion and we find no manifest error.

THE CORPORATION’S RECONVENTIONAL DEMAND

The lower court concluded that the corporation was not entitled to attorney’s fees because plaintiff’s unsuccessful action for receivership “was not made in bad faith.” L.R.S. 12:151(D). We cannot say the lower court manifestly erred in this respect.

At appellants cost, judgment is

AFFIRMED.

      . See O’Neal, Oppression of Minority Shareholders, Chap. 7, Sec. 7.16 at page 528; 19 C.J.S. “Corporations” § 977, pp. 438-439 and Louisiana cases cited therein. Hough v. Speede, 300 So.2d 239 (La.App. 2d Cir. 1974), writ refused La., 303 So.2d 185.

      . Brock v. Automobile Livery and Sales Co., 130 La. 404, 58 So. 21 (1912); Kerlin v. Bryceland Lumber Company, Ltd., 134 La. 463, 64 So. 289 (1914); In re Receivership of Webre-Steib Company, Ltd., 136 La. 272, 67 So. 1 (1915); Wolbrette v. New Orleans Drug Co., 151 La. 649, 92 So. 214 (1922); West et al v. Certified Credit Corp., 162 So.2d 589 (La.App. 2d Cir. 1964).