author: BEER, Judge.

text:
    Rita Mae WARNKE v. OWENS-ILLINOIS, INC., and the Aetna Life and Casualty Company.
    No. 7252.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Robert B. Thorne, for plaintiff-appellant.
    Adams & Reese, Harold A. Thomas, New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT, and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Rita Mae Warnke (hereafter, Warnke) filed this workmen’s compensation claim against defendants-ap-pellees, Owens-Illinois, Inc. and Aetna Life and Casualty Company (hereafter referred to jointly as Owens) seeking permanent and total disability due to an injury to her back sustained as a result of an alleged work related accident on or about August 18, 1971.

The trial court dismissed Warnke’s claim concluding that she had not been injured in a work connected accident. Believing the trial court’s conclusion not manifestly erroneous, we affirm.

The sole question before us is the correctness of the trial court’s finding that Warnke did not experience a work connected accident. In this connection, the court was obliged to make a credibility determination with respect to the validity of plaintiff’s version of an incident which she contends was the accident which provoked her disability.

Although Warnke contends that some time during the week of August 18, 1971 she experienced a “terrible headache” and sensations in her neck which she allegedly reported to her foreman, the foreman was not called to verify the contention and her testimony on this critical point is totally uncorroborated. Also, as noted by the trial court, she was unable to “ . really say when the back trouble started.” Perhaps most compelling is the uncontro-verted evidence that, at an unsuspecting time, plaintiff herself acknowledged that her alleged disability was not accident related. This coupled with her treating physician’s history which describes her discomfort as a gradual worsening without any spectific incident of onset makes it clear to us that the trial court’s conclusion on this important point is correct.

The record does support a conclusion that Warnke has experienced the removal of a herniated cervical disk as a result of an operation performed by Dr. Rae-burn C. Llewellyn in September 1971. The fact of the operation does not, however, alter plaintiff’s burden of proving that an accident occurred. Bryant v. Slidell Memorial Hospital, 243 So.2d 285 (La.App. 1st Cir. 1970) writ refused, 257 La. 990, 244 So.2d 859.

Although an “accident” may, more likely, be noticed by a workman who suffers from degenerative arthritis simply because it takes less trauma to cause pain, some injury must have been sustained to make the resulting disability compensable.

The jurisprudential interpretation of the act requires that there be an actual precipitous accident, not simply a gradual deterioration or progressive degeneration. LSA-R.S. 23:1021(1), R.S. 23:1031.

With respect to this narrow issue, the trial court’s creditability call with respect to the happening of an accident necessarily decides the outcome. We find no basis in the record for disturbing the trial court’s determination for it was not manifestly in error.

Accordingly, the judgment is affirmed at appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    Earl R. ANDRUS, Plaintiff-Appellant, v. Robert L. ANDRUS, Defendant-Appellee.
    No. 5379.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 1976.

      Mansour & Davis, by Carl J. Aymond, Jr., Alexandria, for plaintiff-appellant.
    Preston N. Aucoin, Ville Platte, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

In this suit for foreclosure on a note and mortgage, plaintiff appeals from a trial court judgment rejecting foreclosure on the ground that plaintiff had granted an extension to defendant.

Plaintiff, Earl R. Andrus, sold two tracts of land located in Evangeline Parish, Louisiana, to defendant, Robert L. An-drus, on August 10, 1973. Defendant paid $3,000 as down payment and gave a promissory note for the balance of $60,800 secured by a mortgage on the property. The note was payable over a period of thirty years in annual installments plus interest. At the time the note and mortgage were given, the parties executed a side agreement setting payments at $225.00 per month, plus an annual payment of the yearly balance due on principal and interest.

Defendant made his payments each month until November 11, 1974, when certain disputed events occurred. According to defendant, he went to plaintiff’s office and explained that he was unable to pay the annual balance of about $4,000 because his crop was late; plaintiff told him not to worry about the fact that he could not pay, since it would only cost him a “little extra” in interest. In a second conversation, defendant testified, the plaintiff set the date of December 9, 1974 as the date for payment. Plaintiff maintains that defendant came to his office, said he could not pay the $4,000 and wanted to deed the property back to plaintiff.

Both agree that defendant gave plaintiff a check for $225.00, the amount of the monthly payment. Plaintiff contends the $225.00 was in the nature of rent to allow defendant to remain on the premises until he could move his belongings, while defendant contends it was a payment on the note. The plaintiff’s wife (now divorced) admitted that she prepared the check of November 11, 1974 which defendant signed and that she had put “For payment on farm” on it. (TR. 141).

Plaintiff then contacted his lawyer and instructed him to prepare a deed to transfer the property from defendant back to plaintiff.

Defendant did not go to the lawyer’s office to sign the deed, and denies that he had agreed to do so.

On December 6, 1974, defendant mailed plaintiff a check for $4,025.00. Plaintiff refused to accept it and returned it by registered .mail to defendant.

Plaintiff undertook to proceed by execu-tory process to foreclose on the note and mortgage. For reasons that are not relevant to this appeal, the matter was converted to ordinary process and tried on the merits.

The trial court concluded that plaintiff had granted defendant an extension of time within which to make his payment. The brief reasons for judgment are quoted, in pertinent part, as follows:

******
“The defense is that an extension of time was granted by plaintiff to the defendant and that an attempt to make payment was made within the extension granted, but that plaintiff then refused to accept payment, and he has indeed refused to accept any other payment although the disputed payment was made and subsequent monthly payments made in accordance with the contract.
“The question is simply whether or not an extension was granted. The Court is firmly convinced that an extension of time was granted by the plaintiff to the defendant, and that defendant attempted to make payment during the extended period. Accordingly plaintiff’s suit should be dismissed at his costs.” (TR. 49)

The only issue presented on appeal is whether plaintiff granted defendant an extension of time for payment of the note. There is no dispute between the parties as to the applicable law. The rule is well-settled that an extension of time may be granted for payment of a note or an installment thereof; the burden to prove the extension is on the obligor; and there must be a lawful cause (LSA-C.C. art. 1893) for the postponement. The promise to pay additional interest is a valid and lawful cause. See Emblem, Inc. v. Picolo, 123 So.2d 799 (La.App. 4 Cir. 1960).

The trial court resolved the questions of credibility in favor of defendant and against plaintiff. He concluded that an extension had been granted.

The trial court had the opportunity to see and hear the witnesses and, in the absence of manifest error, his determinations of fact should be affirmed. We have examined the record and we find no manifest error. Therefore, the judgment of the trial court is affirmed.

Costs are taxed against plaintiff-appellant.

Affirmed.


author: PRICE, Judge.

text:
    Claudius Emile WHITMEYER v. Laura Myrtle Jett WHITMEYER.
    No. 12836.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.

      Booth, Lockard, Jack, Pleasant & Le-Sage by H. F. Sockrider, Jr., Shreveport, for plaintiff-appellant.
    Love, Rigby, Dehan & Love by Kenneth - Rigby, Shreveport, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ-
   PRICE, Judge.

Claudius Emile Whitmeyer has appealed from the judgment of the district court awarding his wife alimony pendente lite in the sum of $1,000 per month and $400 per month for the support of the two minor children of the marriage.

Specific assignments of error are advanced by the appellant as follows:

(a) “by awarding unto Mrs. Whitmeyer a sum substantially in excess of Mr. Whitmeyer’s ability and means to pay from his net income after taxes;
(b) “by awarding unto Mrs. Whitmeyer a sum substantially in excess of the true standard of living to which she and the children were previously accustomed ;
(c) “by awarding unto Mrs. Whitmeyer a sum which totally disregarded Mr. Whitmeyer’s fixed obligations and community debts;
(d) “by awarding unto Mrs. Whitmeyer a sum which was grossly unfair to Mr. Whitmeyer by the failure to balance his needs with those of her and the children, thus leaving him with a sum substantially and considerably below his former standard of living; and,
(e) “by setting the effective date of her award on September 12, 1975 retroactive to August 7, 1975, thereby placing him immediately in arrears $2,100.00 with another $700.00 due her in only 10 days, when the uncontroverted evidence showed he had no means from which to pay such an automatic ar-rearage.”

Although appellant urges the amount awarded by the trial judge is in excess of that necessary to maintain Mrs. Whitmeyer and the children in a standard of living comparable to that to which they were accustomed during the time the parties lived together, we find this issue may be simply put to rest by reference to appellant’s own testimony given in connection with exhibit D-18 which is an itemized schedule of living expenses prepared by Mrs. Whitmeyer. This list as originally prepared by the wife, reflected a need for a total monthly amount of $2,406.50 for herself and the children. Appellant made an evaluation of the various items included on the list and entered opposite each item the amount which he conceded would be an appropriate expense in accord with their prior standard of living. This list compiled by him totals the sum of $1,362.90 which is only $37.10 less than the total awarded by the trial judge. We therefore do not find it necessary to discuss the evidence in detail relating to this issue.

The principal argument made by appellant is that the sum awarded exceeds the appellant’s ability to pay and that it in effect continues the standard of living for the wife and children at the expense of reducing his standard to such an extent that the apportionment is unfair and inequitable.

Evidence was submitted by appellant attempting to show that although he had enjoyed an annual increase in earnings for the past three years preceding the filing of the separation proceedings (1972, 1973, 1974,) that for the portion of the current year prior to the trial of the rule in September, 1975, his projected net earnings have shown a substantial decrease. Appellant would thus have the court restrict its consideration of his ability to pay to the earning record compiled for the partial year of 1975 without relating it to the earning experience of the past several years. Assuming that the amount awarded by the trial judge was arrived at by reference to the prior years’ earning performance along with the evidence of the current year’s income, this is not inappropriate in evaluating a professional man’s ability to pay alimony.

In addition, appellant contends he has fixed monthly obligations which also substantially reduce the amount he has remaining to spend for his own needs. We note from the evidence that the wife has included the payment on the family home and the automobile provided for her use on the schedule of expenses which she expects to pay from her alimony. The principal amount appellant contends he must pay is an indebtedness to his mother which has no fixed repayment schedule. The second largest amount is an indebtedness incurred by him to a local bank after his separation from his wife. The remaining debt claimed is a student loan with payments of only $48 per month. Under the circumstances presented, we do not find appellant should be relieved of payment of reasonable alimony because of any claimed priority for payment of these obligations.

From our examination of the evidence submitted to the trial judge, we find no abuse of the wide discretion vested in him in assessing alimony pendente lite and child support. This discretion should not be disturbed on appeal unless it appears it has been abused by the trial court.

The remaining issue raised by appellant concerns the date of the commencement of the payment of the alimony. Appellant contends the trial judge should not have ordered payment to begin retroactively to the date of filing of suit as this placed him immediately in arrears on the judgment in the sum of $2,100 with an additional semimonthly payment falling due within ten days of the trial of the rule. Appellant argues this was error on the part of the trial judge in light of his limited ability to pay.

We find no abuse of the trial judge’s discretion in fixing the date alimony should begin.

Although we held in Cumpton v. Cumpton, 283 So.2d 846 (La.App. 2nd Cir. 1973) that the trial judge is not required in every case to begin the payment of alimony pen-dente lite on the date of judicial demand and may set a later date to achieve fairness under the circumstances presented, the general rule is to commence payment on the date of the filing of suit. The judgment as rendered herein allows appellant credit for all sums paid to or on behalf of Mrs. Whitmeyer or the children subsequent to judicial demand. This provision precludes any unfairness to appellant in making the beginning date retroactive to date of judicial demand.

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


text:
    Gary Lee KRESHEL, Plaintiff-Appellant, v. Judy Ann KRESHEL, Defendant-Appellee.
    No. 12833.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Shuey, Smith & Carlton by W. Gene Carlton, Shreveport, for plaintiff-appellant.
    Booth, Lockard, Jack, Pleasant & Le-Sage by H. F. Sockrider, Jr., Shreveport, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ-
   PRICE, Judge.

Gary Lee Kreshel, a Washington resident, appeals from a judgment granting him visitation rights with his five-year-old daughter, Stephanie, in Shreveport but denying his request for visitation rights with his child in Spokane. We do not reach the merits of this appeal because although the issue has not been raised by motion to dismiss, this court takes judicial cognizance of the jurisdictional defect which requires us to dismiss this appeal.

The judgment appealed from was signed and filed on August 21, 1975. The minutes of the trial court reflect that a motion for an appeal was made on September 3, 1975, and the appeal made returnable November 3, 1973. The order of appeal was conditioned upon the furnishing of security in the amount of $250. The record reflects an appeal bond was filed October 22, 1975.

Under Code of Civil Procedure, Articles 3942, 3943, and 2087, an appeal from a judgment awarding custody may be taken and the security therefor furnished only within thirty days from the expiration of the seven-day delay for applying for a new trial as provided by L.S.A.-C.C.P., Article 1974.

The First Circuit Court of Appeal has interpreted the term "custody” as used in Article 3943 to also include judgments relating to visitation rights or privileges. Lewis v. Lewis, 148 So.2d 420 (La.App. 1st Cir., 1962). The issue presented as to the timeliness of appellant’s filing of the appeal bond in this case is identical to that question as resolved by the Lewis decision. In construing “custody” as used in Article 3943 to be inclusive of “visitation rights,” the court in Lewis relied on a similar result reached by the Supreme Court in Downey v. Downey, 183 La. 424, 164 So. 160 (1935).

We are of the opinion that the decision in Lewis was correct in holding that appeals from judgments awarding visitation must be perfected within the delays provided by L.S.A.-C.C.P., Articles 3942, 3943, and 2087.

In the instant case, no notice of judgment was required under L.S.A.C.C.P., Article 1913, so the delay for a new trial exclusive of legal holidays commenced to run on August 22nd and ended September 2, 1975.

We find that under the applicable provisions of law relating to appeals, the plaintiff had until October 2, 1975, to perfect his appeal. Although the order of appeal was timely granted on September 3, 1975, the security was not furnished until October 22, 1975.

The jurisdiction of our court does not attach unless the order of appeal and bond are timely filed. See Wright v. Mark C. Smith & Sons et al., 283 So.2d 85 (La.1973).

In accord with the foregoing reasons, the appeal is dismissed at appellant’s costs.


author: MARVIN, Judge.

text:
    Joy Faye Wheeler ROBERTSON v. Dennis Gene ROBERTSON.
    No. 12835.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.

      Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for defendant-appellant.
    Naff, Kennedy, Goodman, Stephens, Donovan & Parnell by Robert J. Donovan, Jr., Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ-
   MARVIN, Judge.

The husband appeals from a pendente lite alimony award ordering him to pay $350.00 per month to his wife. He contends the trial court abused its “much discretion” in fixing the amount beyond his ability to pay. We affirm.

While there were no written or oral reasons given below for the award, the record clearly supports our affirmance of the award. The husband’s gross income from full-time employment is shown to be $1,130.00 per month. For the two years preceding the judgment, the husband’s gross income from part-time employment averaged approximately $150.00 per month. His net monthly income was considerably lower, but only because he overpaid his income tax by monthly deduction by claiming less than the number of dependents the law allows and by voluntarily authorizing monthly payroll deductions for car payments, retirement, investment and insurance plans.

The amount of the monthly alimony award, made below is roughly equivalent to the husband’s expendable income, after full allowance for his claimed expenses and legally mandatory deductions are subtracted from his gross monthly income. The husband’s claimed expenses include a $220.00 monthly child support payment made by him to twin seventeen year old children of a prior marriage.

The record also indicates the wife’s health somewhat limits her being gainfully employed. The trial court did observe that the itemized monthly expenses, as respectively submitted by each litigant, were “very realistic.” Under these circumstances and the established law, the lower court’s award is within the discretionary range afforded a trial court for determining the amount of alimony pendente lite.

At Appellant’s cost, the judgment is

Affirmed.


author: REDMANN, Judge. SCHOTT, Judge

text:
    Robert C. CARTER v. Katherine Lynn RITTENBERG et al.
    No. 7059.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 1976.

      Orlando G. Bendana, New Orleans, for plaintiff-appellee.
    Robert J. Young, Jr., Michael K. Fitzpatrick, Edward L. Levert, Jr., New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   REDMANN, Judge.

This appeal seeks reduction of a $21,500 damage award on jury verdict. We affirm.

Undisputed is that plaintiff worked six days a week before the accident, staying after hours or returning on Sunday if needed, and never missing a day, to' support his wife and six children. After plaster from defendant building owners’ ceiling fell and struck his forehead, he did not work for sixteen months, losing about $9,360 in wages while his family lived on unemployment benefits or welfare and food stamps and assistance from neighbors. Plaintiff testified he could not work during that period because of severe headaches with blurred vision — headaches that, he says, continued to the day of the trial and caused him to forego a higher-paying job because his job as an offshore night cook allows him to sit and rest when headache or blurred vision occurs.

Electroencephalogram, brain scan and x-rays were negative, as were orthopedic and neurological examinations. But an ophthalmologist found exophoria, a neuro-muscular abnormality which deprives plaintiff’s eyes of “the muscle power to work at a normal distance for any considerable period of time”, as well as of the ability to focus even momentarily at distances closer than four inches from the bridge of his nose (compared to three inches for a normal 46-year-old). This abnormality, also described as convergent insufficiency, is correctable by lenses. The ophthalmologist did not prescribe the lenses, which would have cost $50 to $75, because of the “economic problem” (though he did bill the lawyer for $100 for the examination). His conclusion was that the blow to the head from the falling plaster caused this abnormality and plaintiff’s resultant complaints. Other medical testimony corroborates the ophthalmologist’s assertion that his conclusion is not inconsistent with a normal EEG, since damage to the nerves controlling the eye muscles may not appear on the EEG. The evidence sufficiently supports the ophthalmologist’s conclusion on causation.

We hold the $21,500 award to be within the jury’s “much discretion,” C.C. 1934(3). The supportive medical testimony does assert that the one demonstrated underlying cause of headache and blurred vision is correctable by $75 eyeglasses, and this correctability and its cost was reported to plaintiff, by letter to his attorney, seven and a half months after the accident. Plaintiff cannot collect damages for lost wages or headache and blurred vision which he could so easily have avoided thereafter. But we are not certain that the jury allowed for those items after seven and a half months. Presumably, compensation for the permanent neuro-muscular deficiency, requiring either surgical correction or constant use of corrective lenses, was a major portion of the jury’s award. (Plaintiff previously needed lenses only for reading.) If $21,500 be considered generous because apparently some $16,000 general damages are included, we cannot say it exceeds the upper limit of the jury’s “much discretion.”

Affirmed.

SCHOTT, Judge

(dissenting).

The evidence does not support an award of $16,000 for general damages. Prior to the accident, plaintiff had obtained reading glasses, not at all unusual for a 46 year old, and probably needed these in his work which included searching for and removing spots from clothing in his work for the cleaning establishment.

In all probability his present glasses can be modified to include the corrective lenses he needs so that we do not have a plaintiff who, for the first time, is required to wear eyeglasses but one who already wears them and has an injury to his eye which requires a modification or addition to his glasses for correction. I would reduce the award for general damages and respectfully dissent from affirming the judgment.


author: MILLER, Judge.

text:
    Huey Henry BREAUX, Plaintiff, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Defendants.
    No. 5350.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 1976.

      Voorhies & Labbé by Patrick Juneau, Jr., Domengeaux & Wright by Bob F. Wright, Champagne & Colomb by Patrick L. Colomb, Pugh, Boudreaux & Gachassin by Charles J. Boudreaux, Lafayette, for defendant-appellant.
    J. Winston Fontenot, Lafayette, Jacob Landry, Iberia Allen, Gooch & Bourgeois by Raymond M. Allen, Lafayette, for defendant-appellee.
    Davidson, Meaux, Onebane & Donohoe by John G. Torian, II, Lafayette, for plaintiff-appellee.
    Before MILLER, WATSON and CUTRER, JJ.
   MILLER, Judge.

Defendant appellant' Northbrook Insurance Company, as subrogee to claims of plaintiff Huey Henry Breaux, appeals a summary judgment dismissing its claim against defendant appellee Stuyvesant Insurance Company. Although the alleged malpractice of the architect, insured first by Stuyvesant and then by Northbrook, occurred during or before Stuyvesant’s policy period, the trial court dismissed Northbrook’s claim on finding no notice or claim was filed during Stuyvesant’s coverage. We affirm.

Stuyvesant issued a professional liability insurance policy to architect B. Ray Champagne of Lafayette, Louisiana, covering the period January 31, 1973 through January 31, 1974. The policy was not renewed and Champagne obtained similar coverage with Northbrook for the period January 31, 1974 through January 31, 1975.

The occurrences giving rise to the lawsuit took place during or before Stuyvesant’s policy period. Northbrook agrees no notice or report of the incident which gave rise to the malpractice claim was made during Stuyvesant’s policy period.

The question to be decided is the extent of coverage afforded by Stuyvesant. The answer depends on whether Stuyvesant has a “discovery” or an “occurrence” type policy.

Northbrook contends coverage extends to an “occurrence.” Northbrook argues coverage extends to all malpractice which occurred during the period or term of the policy. Northbrook interprets policy provisions in Stuyvesant’s policy regarding “reporting” to have been inserted to. protect Stuyvesant against prejudicial delay increasing their burden in defending the insured. Stuyvesant contends coverage is limited to those claims which are asserted against the insured and reported to the company within the policy period; i. e., those claims which are “discovered.”

Stuyvesant’s Coverage clause states:— “The Company shall not be liable . for any claims reported, after the termination date of this policy.” Other provisions in the policy set limits of liability of $250,000 for “each claim, and in the aggregate to all claims discovered in the policy period." Paragraph 1 of the conditions of Stuyvesant’s policy states “The limit of liability ... as applicable ‘in the aggregate to all claims discovered during the policy period,’ shall constitute the total limit of the Company’s liability for all claims including claims expenses covered hereunder which are discovered and reported to the Company during the policy period. (Emphasis added.)

The plain intent of these clauses is to restrict Stuyvesant’s liability to those claims discovered and reported during the policy period. Livingston Par. Sch. Bd. v. Fireman’s Fund Am. Ins. Co., 282 So.2d 478 (La.1972). Some reasonable extension of reporting time for last minute claims might be allowed.

Absent conflict with statute or public policy, insurers may by unambiguous and clearly noticeable provisions limit liability and impose such reasonable conditions as they wish upon the obligations they assume by contract. Livingston, supra. In these circumstances, unambiguous provisions limiting liability must be given effect. Snell v. Stein, 261 La. 358, 259 So.2d 876, 878 (1972).

In Livingston, supra, the Supreme Court interpreted a “claims made” clause as creating a limitation in coverage. We follow the rationale of that case. The only distinction between policy provisions there and here is that Stuyvesant’s policy refers to “claims reported.” The difference is immaterial since this claim was neither made nor reported until after Stuyvesant’s policy expired.

We fail to find manifest error in the trial court’s conclusion that Stuyvesant’s policy is a “discovery” policy rather than an “occurrence” policy. Finding no issue of material fact, the summary judgment was properly granted. Costs of this appeal are taxed to appellant Northbrook Insurance Company.

Affirmed.


author: HOOD, Judge.

text:
    C. H. BROOKSHIRE, Plaintiff-Appellant, v. Severin L. BROUSSARD et al., Defendants-Appellees, Lormand Construction Co., Inc., Intervenor-Appellee.
    No. 5320.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Deshotels & Deshotels by O. H. De-shotels, Jr., Kaplan, La. for plaintiff-appellant.
    Toxie L. Bush, Jr., 'Abbeville, for defendants-appellees.
    Before HOOD, GUIDRY and PETERS, JJ.
   HOOD, Judge.

Charles H. Brookshire instituted this suit against the heirs of Thurman Broussard, deceased, for amounts alleged to be due him on two promissory notes executed by the decedent, and for judgment recognizing a special mortgage which secures the payment of one of the above notes. Defendants filed exceptions of prescription and peremption, alleging that they have been released from liability on said notes by the prescriptions of five or ten years, and that the above special mortgage has perempted and is no longer enforceable because of plaintiff’s failure to reinscribe it timely.

Lormand Construction Co., Inc., intervened, alleging that it has purchased the tract of land affected by the above mortgage. As intervenor, it filed exceptions of prescription and peremption, based substantially on the same grounds as those urged by defendants.

After a hearing, judgment was rendered by the trial court in favor of defendants and intervenor, sustaining the exceptions of prescription and peremption filed by said parties, dismissing plaintiff’s suit, and ordering that the above mortgage be can-celled and erased from the mortgage records of Vermilion Parish. Plaintiff Brookshire appealed. Lormand Construction Company answered, claiming damages for a frivolous appeal.

Several issues are presented, the principal one being whether the indebtedness allegedly owed to plaintiff by defendants has prescribed. In order to resolve that issue, it is necessary to determine whether the prescription of five years or that of ten years is applicable, and whether the running of prescription has been interrupted.

Plaintiff is the holder of two promissory notes, both of which were executed by the decedent, Thurman Broussard, and are made payable to the order of “Holder or Holders.” One of those notes is for $2,500.00, and the other is for $450.00. Plaintiff seeks to recover the amounts alleged to be due on both of those notes.

The note for $2,500.00 is dated October 16, 1961, and is payable in monthly installments of $50.00 per month, beginning November 16, 1961. That note is paraphed for identification with, and it is secured by, an Act of Special Mortgage, executed by Thurman Broussard, in favor of “Holder or Holders,” affecting a 5-arpent tract of land in Vermilion Parish. The mortgage is dated of even date with the note, and it was recorded originally in the mortgage records of Vermilion Parish on October 17, 1961. The mortgage was re-inscribed in the mortgage records of that parish on September 4, 1974. The maker, Thurman Broussard, was single, or unmarried, at the time he executed the above note and mortgage.

Five payments of $50.00 each have been made on that note, the last such payment having 'been made on March 27, 1962. After the last of said payments was made, there remained a principal balance of $2,250.00 due on the note.

The $450.00 note is an open or unsecured promissory note. It is dated December 26, 1961, and is payable on demand. No payments have ever been made on that note, and the indebtedness evidenced by it has never been acknowleged by the maker or his heirs, and neither the maker nor anyone else has promised to pay it.

Thurman Broussard died intestate on March 27, 1962, leaving as his sole survivors his widow (Jo Ann Roy), his father and mother, his two brothers and his two sisters. Substantially all of the property left by the decedent belonged to his separate estate, and the indebtedness which was or may have been due on the above described $2,500.00 promissory note was a debt of his separate estate. In 1963, the above survivors of the decedent filed a joint petition in the trial court, seeking a judgment recognizing them as the sole surviving heirs of Thurman Broussard, and putting them in possession of all property left by him, in accordance with a compromise agreement which had been entered into by those parties.

A detailed descriptive list of the property and effects left by the decedent was attached to the above joint petition and was filed in the succession proceeding The 5-arpent tract of land which was mortgaged to secure the payment of the $2,500.00 note was listed in the above document at belonging to the separate estate of the decedent. The descriptive list of property and effects also includes, under the heading of “Liability and Expenses,” the following indebtedness : “Mortgage — C. H. Brookshire $3,000.00.” The $450.00 note was not listed as a liability or debt of the succession.

The petitioners in that succession proceeding alleged that “. . . the respective parties thereto, with the exception of Jo Ann Roy, have agreed to assume all indebtedness and debts of the decedent herein. . . .”

There also was attached to the above joint petition a compromise agreement which had been entered into in 1963 by the decedent’s surviving widow, his father and mother, and his brothers and sisters. Most of the parties signed that agreement on May 13, 1963, and for the purpose of this suit we regard that compromise agreement as having been signed on that date. By that document the parties agreed that the 5-arpent tract of land left by the decedent 'belonged to his separate estate, and that it was to be inherited solely by his father and mother and by his brothers and sisters. The compromise agreement also provided:

“The parties do by these presents agree and declare that the appearers, with the exception of Jo Ann Roy, do by these here presents hereby expressly assume and agree to pay all of the indebtedness existing on the above described property and all other indebtedness legally due by the deceased which indebtedness is listed as follows:
“A special mortgage dated October 16, 1961 in favor of Holder or Holders and against Thurman Broussard in the amount of $2,500.00 recorded in Mortgage Book 404 at Page 275 of the Recorder’s Office of Vermilion Parish, Louisiana.”

Although the agreement describes the indebtedness as a “special mortgage,” we think the parties clearly intended to assume and agree to pay the above described $2,500.00 promissory note, dated October 16, 1961, which was secured by a special mortgage.

The $450.00 note which plaintiff seeks to collect here was not listed in that compromise agreement as a debt assumed by defendants.

Pursuant to all of the above pleadings, a judgment was rendered by the district court on August 12, 1963, recognizing the decedent’s father and mother and his brothers and sisters as owners of the above S-arpent tract of land. That judgment also decrees “that the surviving parents and brothers and sisters of the deceased pay all indebtedness debts of the deceased. ...”

Both of the above described notes were filed in evidence. There are no endorsements on the $450.00 note. On the back of the $2,500.00 note, however, there appears a statement or acknowledgment, written by typewriter, which reads as follows:

“We the undersigned being the heirs of Thurman Broussard do hereby acknowledge that there is a principal balance of $2250 due on this note plus interest from 11-16-61 to date 11-21-66 in the amount of $750.00 or an aggregate of $3000.00 balance due and owing and we hereby waive all prescription and acknowledge the indebtedness due and owing and unpaid.”

Immediately under that acknowledgment there are the signatures of the decedent’s father and mother and of his two sisters. His father, Severin Broussard, signed the acknowledgment “Individually and as agent and attorney in fact for” the decedent’s two brothers. The acknowledgment thus was signed by or in behalf of all of the heirs of Thurman Broussard. Although the acknowledgment was not dated, we agree with plaintiff that it was affixed to the note and was signed on November 21, 1966. Since that time, there have been no other acknowledgments of the note, no payments on the indebtedness and no other promises to pay it.

The decedent’s mother, Mrs. Severin Broussard, died some time prior to July 1, 1974, and all of the property left by her, including her interest in the above mentioned 5-arpent tract of land, was inherited by her surviving husband and children. All of her surviving heirs executed a warranty deed, dated July 1, 1974, conveying that 5-arpent tract of land to Lormand Construction Company. That deed was recorded in the conveyance records of Vermilion Parish on July 8, 1974. No mention was made in that warranty deed of the $2,500.00 note which Thurman Broussard had executed in 1961, or of the mortgage executed on the same date which secured that note. There also was no mention in that deed of the $450.00 unsecured note which is being sued upon here.

On September 4, 1974, plaintiff Brook-shire reinscribed in the mortgage records of Vermilion Parish the Act of Special Mortgage securing the $2,500.00 note which had been executed by Thurman Broussard on October 16, 1961, and which had been recorded in the mortgage records originally in 1961. The reinscription of that mortgage, of course, occurred more than ten years after the mortgage had been inscribed originally, and it was reinscribed almost two months after the property affected by that mortgage had been sold to intervenor, Lormand Construction Company.

The instant suit was filed by plaintiff Brookshire on October 3, 1974. The defendants are the surviving father and the brothers and sisters of the decedent, Thurman Broussard. Lormand intervened.

Defendants and the intervenor contend that under LSA-C.C. art. 3369 the effect of the registry of the mortgage executed by Thurman Broussard on October 16, 1961, and recorded the next day, ceased and that the mortgage became unenforceable on October 16, 1971, that being ten years after the date of the obligation. They point out that all of the property affected by that mortgage was sold to a third party after its registry became ineffective and before the mortgage was re-inscribed. They argue that the mortgage thus can have no effect, even between the parties, and that the reinscription of it in 1974 did not give plaintiff any additional rights under that mortgage. They take the position that the trial judge correctly ordered the original inscription of the mortgage in 1961, and the reinscription of it in 1974, cancelled and erased from the mortgage records of Vermilion Parish,

Plaintiff apparently concedes that the reinscription of the mortgage in September, 1974, did not revive the mortgage or cause it to become effective against the property which was sold to Lormand about two months prior to that reinscription. He argues, however, that defendants and intervenor are entitled to have the inscription cancelled only insofar as it affects the 5-arpent tract of land which was sold to Lormand, but that the original inscription and the reinscription of that mortgage should remain on the records for whatever legal effect it may have as to any other property. The record shows that the mortgage did not affect any property other than that which had been sold to Lormand.

We agree with the trial court that the effect of the registry of this mortgage ceased, even against the contracting parties, on October 16, 1971, because of the failure of plaintiff to renew the inscription of that mortgage within ten years, as provided by LSA-C.C. art. 3369. For that reason we find no error in that part of the judgment of the trial court which orders that the original inscription of the mortgage on October 17, 1961, and the reinscription of that mortgage on September 4, 1974, be cancelled and erased from the mortgage records of Vermilion Parish.

We also conclude that since no payments have been made on the $450.00 note, and defendants have never acknowledged or promised to pay it, defendants have been released from liability on the $450.00 note by the prescription of five years. See LSA-C.C. art. 3540. We find no error in the judgment appealed from, therefore, which sustains the prescription of five years filed by defendants to that note.

We turn now to the question of whether the indebtedness evidenced by the $2,500.00 note has been extinguished by the prescriptions of five or ten years.

Article 3S40 of the Louisiana Civil Code provides that:

“Actions ... on all promissory notes, whether negotiable or otherwise, are prescribed by five years, reckoning from the day when the engagements were payable.”

According to our computations, the last payment due on the $2,500.00 note became payable on January 16, 1966. Ordinarily, therefore, in the absence of an interruption of prescription, the note must be held to have prescribed on January 16, 1971, that being five years after the date on which the “engagements were payable.” Since the note contains an endorsement showing that it was acknowledged on November 21, 1966, it appears on its face that it prescribed five years later, on November 21, 1971.

Plaintiff contends, however, that “this is a suit upon a personal obligation rather than merely a suit on notes.” He argues that in the compromise agreement entered into on May 13, 1963, the defendants specifically agreed to pay the indebtedness due on this $2,500.00 note, that that agreement “made the obligation fall under the theory of law of ‘stipulations pour autrui,’ a personal obligation prescriptible by ten (10) years prescription,” under LSA-C.C. art. 3544. That article of the Civil Code provides:

“Art. 3544. In general, all personal actions, except those before enumerated, are prescribed by ten years.”

Plaintiff’s argument is that the compromise agreement entered into on May 13, 1963, between Thurman Broussard’s surviving widow, on the one hand, and his blood relatives, on the other, converted the debt theretofore evidenced by the promissory note into a “personal obligation,” which is subject to the prescription of ten years under Article 3544 of the Civil Code. He concedes that even under that theory the personal obligation would have prescribed by May 13, 1973, which was before the suit was filed. He argues, however, that the acknowledgment which appears on the back of the $2,500.00 note, made on November 21, 1966, had the effect of interrupting prescription and continuing the personal obligation in effect for another ten years, or until November 21, 1976. Under plaintiff’s theory of the case, this suit was instituted within the prescriptive period.

Plaintiff was not a party to the Compromise agreement which was entered into on May 13, 1963, and defendants thus did not promise plaintiff that the $2,500.00 note, or any other indebtedness, would be paid. Plaintiff argues, however, that he nevertheless can maintain an action against defendants on the personal obligation created by the 1963 compromise agreement, because it constituted a “stipulation pour autrui,” and he was made the beneficiary under that agreement.

We find no merit to this argument by plaintiff. In the first place, we have decided that the compromise agreement entered into on May 13, 1963, did not constitute a stipulation pour autrui. The elements essential to constitute a valid stipulation pour autrui were set out in Andrepont v. Acadia Drilling Company, 255 La. 347, 231 So.2d 347 (1969). One of those requirements is:

“The existence of a legal relationship between the promisee and the third person involving an obligation owed by the promisee to the beneficiary which performance of the promise will discharge . . . .”

In the instant suit no legal relationship of any kind existed between the promisee, Mrs. Roy, and the so-called third party beneficiary, Brookshire. The debt owed by Thurman Broussard on the $2,500.00 note was his separate debt, and the property which was mortgaged to secure the payment of that note was his separate property. Upon his death, his surviving mother and father and brothers and sisters inherited the above property and they alone became obligated to pay that note. The decedent’s surviving widow, Jo Ann Roy, was not obligated to pay the note. There did not exist, therefore, a legal relationship between the promisee, Mrs. Roy, and the third person beneficiary, Brookshire, involving an obligation owed by the promisee to the beneficiary, which performance of the promise will discharge.

In Masset v. Carver, 265 So.2d 456 (La.App. 4 Cir. 1972), the Fourth Circuit Court of Appeal held that “For there to be a stipulation pour autrui, there must be an obligation assumed by one for the benefit of a third person,” and that “The assumption of a payment of an obligation for which the debtor is initially responsible would not fall within this scope because a third person does not receive any ‘advantage’ (as required by LSA-C.C. art. 1890) that he did not previously enjoy.”

We believe the rule applied in Masset, supra, is applicable here. Mrs. Roy did not owe the obligation evidenced by the note to Brookshire, whether she accepted or rejected the community, and the payment of the note thus would not have discharged her from any obligation she owed. Brookshire, who plaintiff contends was the beneficiary, did not receive any advantage from the compromise agreement, because defendants were legally obligated to pay the note when that compromise agreement was entered into, and their promise to pay a debt they already owed did not give the creditor any additional advantage. For these reasons we find that the compromise agreement entered into by the parties on May 13, 1963, did not constitute a “stipulation pour autrui.” It thus did not create or cause to exist a separate “personal obligation” which defendants owed to plaintiff, and which was subject to the prescription of ten years.

Assuming, however, that the compromise agreement entered into on May 13, 1963, constituted a valid stipulation pour autrui, or even a promise made by defendants directly to Brookshire, we nevertheless find that the instant suit is an action on promissory notes, rather than on some other type of personal obligation, and that it thus is subject to the prescription of five years provided in LSA-C.C. art. 3540. We have concluded that the $2,500.00 note prescribed, and became unenforceable against defendants, on November 21, 1971, that being five years after it was last acknowledged.

The original indebtedness to Brookshire was represénted by the $2,500.00 note and plaintiff seeks to recover amounts alleged to be due on that note. We must regard this action, therefore, as being one on a promissory note, unless the evidence shows that a novation took place, that is, that the obligation evidenced by the promissory note was extinguished and a new obligation was substituted in its place. Under the circumstances presented here, plaintiff cannot have two separate claims against defendants, both for identical amounts, one on a promissory note and the other on a different kind of personal obligation. Since he argues that “this is a suit upon a personal obligation, rather than merely a suit on notes,” we assume that he contends that the promise contained in the 1963 compromise agreement has been substituted for the $2,500.00 note.

Novation is a contract consisting of two stipulations, one to extinguish an existing obligation, and the other to substitute a new obligation in its place. LSA-C.C. art. 2185. Novation may occur, among other ways, when a debtor contracts a new debt to his creditor, which new debt is substituted to the old one, which is extinguished. LSA-C.C. art. 2189. A novation, or the substitution of a new debt for an old one, is never presumed. The intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt. LSA-C.C. art. 2190. The determining factor is the intention of the parties. The intention to novate may be shown by the character of the transaction, and by the facts and circumstances surrounding it, as well as by the terms of the agreement itself.

The evidence in the instant suit convinces us that the parties did not intend for a novation to take place when the 1963 compromise agreement was executed. We do not think they intended by that agreement to extinguish the indebtedness evidenced by the $2,500.00 promissory note, and to substitute in lieu of it the promise contained in the above compromise agreement.

In the first place, there is nothing in the 1963 compromise agreement which shows an intention of the parties to extinguish the $2,-500.00 note. That agreement, on the contrary, indicates that the parties assumed and promised to pay that note, and that they did not intend to substitute a new agreement in lieu of it.

The typed statement appearing on the back of the $2,500.00 note, signed on November 21, 1966, recites that the defendants acknowledge the amount due on “this note.” The fact that the acknowledgment was typed on the $2,500.00 note itself, that it specifically refers to that note, and that plaintiff retained the note in his possession, indicates that the parties intended that the note was to remain in effect, not that it was to be extinguished.

In the instant suit plaintiff alleges that he is the holder in due course of the $2,500.00 note, and he seeks to recover the amount alleged to be due on that note. He does not allege, and he does not seek to recover on, the 1963 compromise agreement. The allegations contained in his petition thus are not consistent with the position he takes here that this is an action on a personal obligation, rather than on promissory notes. Those allegations also indicate that when the suit was filed plaintiff did not feel that a novation had taken place.

Finally, plaintiff demands a judgment recognizing the special mortgage which secures payment of the $2,500.00 note. If a novation had taken place, with the result that that note was extinguished and the 1963 compromise agreement had been substituted for it, then the mortgage would no longer be enforceable since the note which it secured would have been extinguished.

After considering all of the evidence, we conclude that the instant suit is an action on two promissory notes, and that the action has prescribed by five years, reckoning from the day when the engagements were payable, as provided in Article 3540 of the Civil Code. It is not a personal action, as that term is used in Article 3544 of the Civil Code, and thus it is not subject to the prescription of ten years, as provided in that article. There is no error in the judgment of the trial court, therefore, which sustains the exceptions of prescription of five years to this action.

Intervenor, Lormand Construction Company, seeks damages for a frivolous appeal. It contends that the only interest which it had in the matter was to obtain the cancellation of the mortgage affecting the property which it purchased from defendants, since no one contends that Lor-mand is personally liable on the promissory notes sued upon. It argues that the mortgage had perempted because of plaintiff’s failure to reinscribe it within ten years, that plaintiff has submitted no evidence in arguments to show otherwise, and that plaintiff’s appeal thus is frivolous.

We agree that the effect of the registry of the mortgage clearly had ceased before this suit was filed, and that plaintiff has made no substantial argument to the contrary. The intervenor also filed exceptions of prescription, however, alleging that plaintiff’s action to recover judgment against defendants on the promissory notes had prescribed. The trial court rendered judgment in favor of intervenor Lormand, as well as in favor of defendants, decreeing this action on the promissory notes to be prescribed, and dismissing plaintiff’s suit. Plaintiff’s appeal from that part of the judgment which sustained the exceptions of prescription filed by Lormand, as well as by defendants, was not frivolous. Since his appeal from a part of the judgment rendered in favor of Lormand was not frivolous, the intervenor’s demand for damages for a frivolous appeal is rejected.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

Affirmed.


author: CULPEPPER, Judge. PAVY, Judge

text:
    Charles COLBERT, Plaintiff and Appellee, v. MIKE-BAKER BRICK COMPANY OF NEW IBERIA, INC., Defendant and Appellant.
    No. 5269.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearings Refused March 26, 1976.

      Davidson, Meaux, Onebane & Donohoe, by John G. Torian, II, Lafayette, for defendant-appellant.
    Edward D. Rubin, Lafayette, for plaintiff-appellee.
    Before HOOD, CULPEPPER, DO-MENGEAUX, GUIDRY and PAVY, JJ.
   CULPEPPER, Judge.

Plaintiff-appellee, Charles Colbert, filed this suit under LSA-R.S. 23:631, 23:632 for wages due and demanded but not paid within 24 hours after discharge. He also seeks penalties and attorney’s fees. Defendant is his former employer, Mike-Baker Brick Company of New Iberia, Inc. From a judgment awarding plaintiff wages in the sum of $36.30, plus $1,228.50 in statutory penalties, and $350 in attorney’s fees, the defendant has appealed.

The issues are: (1) In the absence of allegations or proof that the defendant-employer was engaged in interstate commerce, is the National Labor Relations Act applicable, so that the plaintiff, although not a member of the union, may be bound by the collective bargaining agreement requiring arbitration of this dispute? (2) If the National Labor Relations Act is not applicable, is plaintiff bound under Louisiana Law by the arbitration requirement of the collective bargaining agreement between his employer and the union, of which plaintiff was not a member? (3) On the merits, is plaintiff entitled to judgment for wages, penalties and attorney’s fees under LSA-R.S. 23:631, 23:632?

Plaintiff began employment for defendant on April 9, 1973. He drove a truck used to haul bricks. The truck was equipped with an unloading device known as a “Superlite”. The Superlite weighs approximately 1300 pounds and is subject to falling or sliding off the back of the truck if not properly handled. Soon after his employment, the Superlite which plaintiff was operating slipped off the truck. The services of a wrecker were required to replace it at a cost of $30. At the time of that incident, one of the owners of defendant company warned plaintiff that if the situation occurred again the plaintiff would be required to reimburse his employer for the cost of replacing the Superlite on the truck. Plaintiff, however, denies that such a warning was issued to him.

On May 23, 1973, approximately six weeks after plaintiff began his employment, he again flipped a Superlite off his truck. On this occasion the cost of the wrecker service required to replace the Su-perlite amounted to $36.30. The next afternoon, May 24, 1973, plaintiff was discharged by his employer, apparently for refusing to drive a truck when ordered to do so. When plaintiff returned to defendant’s office the following morning to obtain his paycheck, he found that his wages due for the week were $94.50, but defendant had withheld $36.30 as the cost of the wrecker service necessitated by plaintiff’s alleged negligent damage to the Superlite.

At all times pertinent to this action there was in effect a collective bargaining agreement between the defendant company and the union which represented his employees. This contract required that all employees hired by defendant become and remain members of the union. However, the contract also provides:

“Article XII — Seniority.
Section 1. All new employees shall be regarded as temporary for the first thirty-one (31) days of their employment. Such employees shall be regarded as probationary employees and shall not be subject to the terms of this agreement.”

The evidence shows that although plaintiff had been employed for about six weeks, he had never joined the union, was not a member and had never paid dues.

The collective bargaining agreement also provides:

“Article XIII — Grievance Procedure
The Union and the Company agree that there shall be no strike, lockout, tie-up or legal proceedings without first using all possible means of settlement as provided for in this Agreement of any controversy which might arise.
Should differences arise between the Company and the Union or any employee of the Company as to the meaning or application of the provisions of this agreement, such differences shall be settled in the following manner:” (Then the agreement sets out the procedure for arbitration)
* >fc * * * *
“Article XVII — Equipment, Accidents, Reports
Section 2. Each piece of equipment is assigned to a stated employee and he is responsible for this equipment, if through his proven neglect the equipment is damaged or destroyed he will repay in full to the Company for the repairs or replacement of the equipment if it is beyond repair.”

APPLICATION OF NATIONAL LABOR RELATIONS ACT

In this Court, defendant contends the National Labor Relations Act is applicable, and that, under Federal jurisprudence construing that act, collective bargaining agreements entered into by employers with a properly elected bargaining representative or union are binding on all employees whether they are members of the union or not. Defendant cites J. I. Case Company v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944); Wallace Corporation v. NLRB, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216 (1944); Prudential Insurance Company of American v. National Labor Relations Board, 2 Cir., 412 F.2d 77 (1969); and Britt v. Trailmobile Company, 179 F.2d 569 (6th Cir. 1950).

However, the jurisprudence makes it clear that the National Labor Relations Act does not apply unless it is shown that interstate commerce is affected. See Windward Shipping (London), Ltd. v. American Radio Association, AFL-CIO, 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195 (1974); American Radio Association, AFL-CIO v. Mobile Steamship Association, 419 U.S. 215, 95 S.Ct. 409, 42 L.Ed.2d 399 (1974); New Orleans Opera Guild v. Local 174, Musicians Mutual Protective Union, 242 La. 134, 134 So.2d 901 (1961). In the present case, .there is no allegation nor proof whatever that the defendant-employer was engaged in interstate commerce.

We conclude the National Relations Act has no application to this dispute. Hence, the Federal jurisprudence construing that Act and on which defendant relies, likewise has no application to his case.

We might add gratuitously that if it had been shown the National Labor Relations Act does apply to this dispute, then probably the state courts would have no jurisdiction. Toomer v. Local No. 995, International Brotherhood of Electrical Workers, 131 So.2d 248 (1st Cir. 1961) and the authorities cited there.

UNDER LOUISIANA LAW, IS PLAINTIFF BOUND TO ARBITRATE?

As a general rule of Louisiana law, a party is bound only by contracts to which he is party. LSA-C.C. Article 1901. A third person may benefit from another’s contractual undertaking, where he signifies his assent to accept it. LSA-C.C. Article 1902; Andrepont v. Acadia Drilling Company, 255 La. 347, 231 So.2d 347 (S.Ct. 1969). But, under Louisiana law, no contract is binding without the consent of both parties, express or implied.

Therefore, we hold that under Louisiana law an employee who is not a union member is not bound by a collective bargaining agreement entered into by that union.

THE MERITS

We now consider the applicability and effect of LSA-R.S. 23:631 under the facts as presented.

Counsel for defendant-appellant first argues this statute is inapplicable since it applies only to employment “by the day, week or the month”. He suggests that plaintiff Colbert was employed at an hourly rate of pay and for an indefinite period of time and therefore is not subject to the terms of the Act. We cannot agree.

Though the evidence is clear that plaintiff was paid an hourly wage, it is equally clear that his employment was based upon a weekly pay period, i. e., he was paid weekly. We conclude that plaintiff’s employment was “by the . . . week”.

Counsel for defendant-appellant seeks to analogize to the instant situation that presented in the cases of Dunn v. Bessie F. Heirn School, Inc., 209 So.2d 538 (4th Cir. 1968) and Gatti v. Southern Research Company, Inc., 271 So.2d 376 (2d Cir. 1972). In Dunn, a school teacher was hired for a 9-month term and was to be paid over a period of 12 months. The court held that employment was not “by the day, week or month”. It was for a term. Likewise, in Gatti, supra, the plaintiff was employed at an hourly wage for the duration of a certain project. The court held the Act not applicable to this employment. Again the distinguishing feature is that the employment was for a term.

Defendant’s next contention is that even if LSA-R.S. 23:631, 23:632 is applicable, the facts of this case show that the employer had just grounds to withhold the $36.30 from plaintiff’s wages.

As stated above, the facts show that soon after his employment plaintiff damaged one Superlite on his truck, which the employer repaired at a cost of $30. On that occasion, the employer warned the plaintiff that if this happened again he would be charged with the cost of repairs.

With respect to the subject accident, plaintiff was the only witness. He testified that one of the legs holding up the Superlite was “crooked” and that it fell while he was unloading the bricks from the truck. Defendant argues that under plaintiff’s own testimony he was negligent, inasmuch as he was aware of the danger in operating the Superlite with one of the legs “crooked”. Defendant argues that plaintiff was in complete control of the truck, and that he did not take sufficient care to see that the Superlite was set up correctly prior to unloading the bricks, and, as a result, the Superlite flipped off the truck.

Although the issue of plaintiff’s negligence in damaging the Superlite is close, we are unable to find that defendant has proved by a preponderance of the evidence that plaintiff was negligent. Accordingly, we find plaintiff is entitled to recover the $36.30 withheld from his wages.

However, we think defendant did have reasonable grounds to withhold the wages, and it was therefore not arbitrary or capricious so as to be subject to penalties and attorney’s fees. In Becker v. Choate, 204 So.2d 680 (3rd Cir. 1967), we stated the applicable law as follows:

“Although an employer’s delay in paying wages earned by employees within twenty-four hours after their discharge or resignation renders him liable for penalties under R.S. 23 :632, this statute must be strictly construed, and it is well settled that the courts will refuse to allow penalties if the employer had some equitable justification for not paying the wages timely, (citations omitted)
“While cases on this point generally state that R.S. 23:632 is subject to ‘equitable defenses’, we are of the opinion that the word ‘defenses’ does not mean a ‘defense’ in a strict sense of the word. Rather, the tenor of these cases seems to indicate that the court will refuse to assess penalties and attorneys’ fees where the facts of the particular case strongly indicate that greater justice will be attained by such refusal. These facts then become equitable consideration, or ‘defenses’ in a loose sense of the word, which will move the court to deny the penalties.”

We find this case comes within the rule of Becker v. Choate, supra, and the cases cited therein. Defendant reasonably believed it was justified in withholding an amount from plaintiff’s wages. The ultimate realization that the action was improper does not prevent that action from constituting and “equitable defense” in a suit for penalties and attorney’s fees.

For the reasons assigned, the decision of the trial court is amended so as to delete the awards for penalties and attorney’s fees. In all other respects the decision is affirmed. The costs of this appeal are assessed to defendant-appellant.

Affirmed, as amended.

PAVY, J., concurs and assigns reasons.

DOMENGEAUX, J., concurs in the result reached.

PAVY, Judge

(concurring).

I concur in the majority opinion but think that the arbitration issue is more properly disposed of on procedural grounds. Defendant filed its exception of no cause or right of action the day before trial and some eight months after having filed answer. The claim to arbitration constitutes a dilatory or waivable declina-tory exception which must be urged in lim-ine. See Lawton v. Cain, 172 So.2d 734 (1965, 2nd Cir.); Quinn Construction Co., Inc. v. Savoie, 207 So.2d 229 (1968, 4th Cir.); Alvis Hotel, Inc. v. Alvis Hotel of Monroe, Inc., 149 So.2d 199 (2nd Cir., 1963); B. Segall Co., Inc. v. J. C. Trahan (1973, 2nd Cir.); 276 So.2d 340, 17A CGS, pages 889 et seq.


text:
    Mary McNeal CONSTANCE, Individually and as Administrator of her minor son, Byron Joseph Constance, Plaintiff-Appellant, v. Buford SMITH and Commercial Union Insurance Company, Defendants-Appellees.
    No. 5363.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 1976.
    Edward A. Kaplan and Larry W. Rivers, Alexandria, for plaintiff-appellant.
    Gravel, Roy & Burnes by Christopher J. Roy, Gist, Methvin & Trimble, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Plaintiff appellant Mary McNeal Constance appeals the unanimous jury verdict dismissing her claim for damages sustained when her vehicle was rear-ended by the uninsured overtaking vehicle operated by defendant Buford Smith’s minor daughter. Defendant Commercial Union Insurance Company carried uninsured motorist protection covering occupants of the Constance vehicle. We affirm.

After dark on the dry cloudy night of December 5, 1974, the accident occurred in Avoyelles Parish on the north south blacktopped two lane Louisiana Highway 107 approximately 1.4 miles north of Effie. Both vehicles were northbound in their proper lane a few moments before impact. There were no hills or other obstructions to obscure visibility.

Mrs. Constance and her witnesses testified she was driving north and slowing to turn into her private driveway when she was struck from the rear. Miss Smith’s version was that the Constance car backed onto the highway from the Constance driveway directly into her northbound lane at a time when she could not avoid the collision.

The trial jury unanimously rejected plaintiff’s version and accepted defendant’s. There is sufficient evidence in the record upon which the jury could have based its findings.

When evidence is before the trier of fact which, upon a reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, the appellate court should not disturb this finding absent manifest error. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may believe its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La. 1973); Landry v. City of Lafayette, 324 So.2d 550 (La.App. 3rd Cir., 1975); Rogers v. Murphy, 324 So.2d 544 (La.App. 3rd Cir., 1975); LaCour v. Colonial Life & Accident Insurance Co., 324 So.2d 458 (La. App. 3rd Cir., 1975); Vaughn v. Earthly, 313 So.2d 347 (La.App. 3rd Cir., 1975); Bertrand v. Aetna Casualty & Surety Company, 306 So.2d 343 (La.App. 3rd Cir., 1975).

Appellant having failed to establish manifest error in the jury determination, the trial court judgment is affirmed at appellant’s costs.

Affirmed.


author: WATSON, Judge. CULPEPPER, Judge

text:
    Clarence M. KELLY, Plaintiff-Appellant, v. BLOUNT BROTHERS CORPORATION et al., Defendants-Appellees.
    No. 5318.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 20, 1976.
    Dissenting Opinion Feb. 24, 1976.
    Writ Refused April 7, 1976.

      Francis E. Mire, Lake Charles, for plaintiff-appellant.
    Scofield, Bergstedt & Gerard, by Richard E. Gerard, Jr., Raggio, Farrar, Cappel & Chozen, by Fred L. Cappel, Edward Barnett, of Camp, Carmouche, Palmer, Carwile & Barsh, Brame, Bergstedt & Brame, by Frank M. Brame, Lake Charles, Harry McCall, Jr., New Orleans, Plauche, Smith & Hebert, by James R. Nieset, Lake Charles, for defendants-appellees.
    Before CULPEPPER, DOMEN-GEAUX, WATSON, GUIDRY and PAVY, JJ.
   WATSON, Judge.

This is an appeal from a summary judgment involving as decisive the question of whether a genuine issue of material fact is presented. Plaintiff, Clarence M. Kelly, filed suit against numerous defendants asserting claims in tort resulting from his alleged inhalation of a poison gas on November 6, 1973. The only defendants involved in the present appeal are Olin Corporation and its liability insurer, Insurance Company of North America, in whose favor a summary judgment was granted by the trial court on the basis that Kelly, at the time of the alleged accident, although employed by Augenstein Construction Company, Inc., was engaged in the “trade, business, or occupation” of Olin Corporation (see LSA-R.S. 23:1061) and was therefore, a statutory employee of Olin Corporation, making the latter immune from tort liability due to the exclusiveness of the Compensation Act. (LSA-R.S. 23:1032).

On behalf of Olin and its insurer, several affidavits by Olin officials were filed in the record in support of the motion for summary judgment. Opposing these in the record are plaintiff’s deposition and the deposition of one Robert Holden, identified as Project Manager at Olin for Augenstein Construction Company.

The law as to summary judgments is that the mover must clearly demonstrate the absence of any genuine issue of material fact and the applicable rules as to summary judgment have been summarized by this court as follows :

“(1) Summary judgment is granted only where the absence of a genuine issue as to material fact has been clearly shown.
“(2) The burden is on the party moving for summary judgment.
“(3) Any doubt as to granting the motion shall be resolved against the mover and in favor of a trial on the merits.
“(4) Summary judgment may not be granted on the basis that the affidavits on one side preponderate over the opposing affidavits.
“(5) Affidavits submitted shall be made on personal knowledge.” Moreaux v. American Mutual Insurance Company, 302 So.2d 686 at 690 (La.App. 3 Cir. 1974).

In the present appeal, it is undisputed that Augenstein, for whom plaintiff worked, was engaged in two projects at Olin, which is a long-established chemical plant located in Calcasieu Parish. One of the projects was the construction of a new facility identified as the RF 230 Unit.

Not so clearly established in the record is the nature of the other project on a facility identified as the TDI Unit. Plaintiff apparently had duties in connection with both units.

Olin and its insurer, in urging their motion for summary judgment, contend that plaintiff was at the site of the TDI Unit at the time of the alleged accident, that the work there was merely modification work, that Olin has numerous employees who perform similar work, that as such it fell within the trade, business, or occupation of Olin within the contemplation of the Compensation Act, and that plaintiff is precluded, therefore, from asserting a claim in tort against Olin and its insurer. The identical affidavits of Nicholson, Olin Safety Manager; Bruffy, Regional Safety Manager; and Marcon, Construction Manager ; support this position.

Two other affidavits were filed by Olin to state that Olin has in the past engaged in construction work at the Lake Charles plant.

Opposing this view, plaintiff contends that, while he was at the location of the TDI Unit at the time of the alleged accident, the work there involved the complete reconstruction or the construction of a new facility (the incinerator scrubber). at the TDI Unit and that as such, the work falls outside the trade, business, or occupation of Olin.

The law, as recently set forth by this court in Duplechin v. Pittsburgh Plate Glass Company, 265 So.2d 787 (La.App. 3 Cir. 1972), lays down the precise distinction argued by the parties, that is:

“. . . ordinary maintenance and repairs are part of an employer’s regular business, trade or occupation, and construction of a new facility or complete reconstruction of an existing facility are not part of employer’s regular business, trade or occupation.” 265 So.2d 790.

See also Ball v. Kaiser Aluminum & Chemical Corporation, 112 So.2d 741 (La.App.Orl.1959).

The record, as presented on the motion for summary judgment, contains evidence on both sides of the issue. The affidavits submitted by Olin and its insurer support the theory that Augenstein’s work on the TDI Unit was merely repairs; the deposition of Holden, the Project Manager for Augenstein, supports the idea that at the TDI Unit Augenstein was building an incinerator scrubber, that there was no old scrubber unit, and that Augenstein’s work was mostly new construction.

On the basis of the record, wé cannot say that the movers have clearly demonstrated that there is no genuine issue of material fact. Therefore, we find that the trial court erred in granting the motion for summary judgment. It is not our duty onappeal, nor was it the trial court’s duty to try the factual issue of whether the work was ordinary repairs or complete reconstruction. The issue appears to be close and should be fully aired by trial on the merits. It may be that the evidence preponderates on Olin’s side of the issue but the question here is whether it is clear that there is no issue of fact to be decided and we cannot so conclude.

The granting of summary judgment in favor of Olin Corporation and Insurance Company of North America is reversed.

Costs of this appeal are taxed against Olin Corporation and Insurance Company of North America.

Reversed and remanded.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge

(dissenting).

I cannot agree with the majority that there is a genuine issue of material fact. The majority opinion concludes:

“The record, as presented on the motion for summary judgment, contains evidence on both sides of the issue. The affidavits submitted by Olin and its insurer support the theory that Augen-stein’s work on the TDI Unit was merely repairs; the deposition of Holden, the Project Manager for Augenstein, supports the idea that at the TDI Unit Au-genstein was building an incinerator scrubber, that there was no old scrubber unit, and that Augenstin’s work was mostly new construction.”

The majority correctly states that the affidavits submitted by Olin show that Au-genstin’s work on the TDI Unit was merely repairs. These affidavits were by the safety manager at the Lake Charles plant, the regional safety manager, and the construction manager for Olin. They explain that the Lake Charles plant of Olin Corporation produces various chemicals. One of these chemicals is toulene di-iso-cyanate (TDI), which is a gas used in the manufacture of foam rubber. The TDI Unit mentioned in the majority opinion, is that portion of the plant which produces this gas. The affidavits explain that in the production of this gas, numerous waste products are also produced, necessitating an incinerator to dispose of them.

These affidavits state that on November 6, 1973, the date of plaintiff’s alleged injury, the TDI Unit had been completed and was no longer under construction. It had been on production since August of 1973. The affidavits state that at the time of the accident, Kelly “was engaged in work designed specifically to modify and improve the operation of said processing unit and was not engaged in new construction . , but rather was engaged in routine maintenance work falling within the ambit of the trade, business and occupation of Olin Corporation.”

These affidavits by the officials of Olin are corroborated in full, both by the allegations of plaintiff’s petition and by plaintiff’s own deposition. In his original petition, plaintiff alleges that at the time of the accident he was employed as a general foreman for Augenstein Construction Company which “was in the process of removing and replacing equipment known as ‘scrubbers’ (emphasis supplied) at the Olin Chemical Corporation near Lake Charles.” Plaintiff later amended his petition to add the allegation that Augenstin was also “constructing a complete new unit known as RF 230 as well as doing some remodeling to the TDI Unit.” (emphasis supplied)

In his deposition, plaintiff states that the TDI Unit had been constructed by Blount Brothers Corporation and had been completed in about August of 1973 and placed in production. Then he testified:

“Q. Prior to that time, did you have anything whatsoever to do with the construction of the unit or with the unit after it went on stream in the summer of ’73 ?
A. I didn’t have anything to do with the main construction. I didn’t work for Blount, the contractor that built it. I worked for Augenstein, and Augenstein was doing some repair work in there, (emphasis added)
Q. Now, what were you called on to do?
A. Well, I was a supervisor.
Q. Did you go into that area in October of 73 and remain in that area until December of 73, or did you have other duties in other parts of the plant or in other places outside the plant during that period of time?
A. Well, we was constructing a new unit. We were building this new addition. In fact, I don’t believe they’s finished it yet. But also, I had duties in this incinerator of the TDI unit itself. We were rebuilding the old incinerator. It wouldn’t perform or something. Anyway, we had to tear it down and rebuild it or rework it, or whatever you might call it.” (emphasis supplied)

In the following portion of his deposition, plaintiff makes it clear that at the time of the accident he was not performing duties connected with the new RF 230 plant, but was supervising the pipefitters who were repairing or remodeling the incinerator in the TDI Unit. In answer to a question as to where he was at the time of the accident, plaintiff testified:

“We was walking up the unit, and we had a west wind blowing to the east, so we passed through it. Well, I guess it was a southwest wind, I’m not sure exactly; but anyway, we passed through that area. And then we come to the north end of the unit where we was repairing this incinerator.” ^ (emphasis added)

Plaintiff testified further:

“Yes, we were repairing this incinerator., And so I stayed there approximately of an hour. Approximately, now, I can’t say for sure. And so some of the boys was leaving, and I asked one of the foreman, I says, what’s happened? He said, well, the TDI is loose, is escaping. Well, then some stayed in the unit and some didn’t.” (emphasis added)

Thus, the affidavits of the Olin officials, the allegations of plaintiff’s petition as amended, and the testimony by plaintiff in his deposition show clearly and without question that at the time of the accident plaintiff was supervising the pipefitters who were repairing or remodeling the incinerator of the TDI Unit. Olin’s uncon-tradicted affidavits show they have 163 regular employees who do such remodeling, repair and maintenance work, and 17 of these are pipefitters, the same as the men being supervised by plaintiff. However, as on this occasion, where their regular maintenance crews are busy on other jobs, they contract some of the remodeling, repair and maintenance work. Under these un-contradicted facts, the work being done by plaintiff was clearly a regular part of Olin’s trade or business.

The only document which could raise any issue of fact in this case- is the deposition of Mr. Robert F. Holden, who was the project manager for Augenstein on work they were doing for Olin at the time of plaintiff’s injury. Mr. Holden states in his deposition that when he became project manager on September 9, 1973, Augenstein was performing two jobs for Olin. They were constructing the new RH 230 plant and they were doing some work on the TDI Unit. When asked what Augenstein was doing at the TDI Unit, Holden testified:

“Q And what were they doing at the TDI unit?
A They were building an incinerator scrubber complex.
Q They were building it ? .
A It was in the process of being built, under construction.
Q Did you people ever do any work on an old scrubber unit ?
A No.
Q None at all ?
A There was none.
Q And you didn’t do any repair work at Olin?
A There was no scrubber.
Q Well did you do any type of repair work, or remodeling, at Olin ?
A On the TDI complex ?
Q Yes.
A Yes.
Q What was that?
A Various stages of different parts of construction that needed modification.
Q And that’s in the old unit?
A In the new TDI complex.
Q How about in the old Unit ?
A There was no old unit.
Q There were no scrubbers or anything like that before?
A No.”

Holden’s deposition is vague, but viewing it in the light most favorable to plaintiff, he states only that the work being done on the TDI Unit was the construction of a new “scrubber” in the incinerator. We know from Olin’s affidavits and from the deposition of plaintiff himself that the TDI Unit had been completed in September of 1973 and was producing gas at the time of plaintiff’s accident in November. Of course, Olin’s affidavits and plaintiff’s deposition also state that they were “remodeling or repairing the incinerator scrubber”. But even accepting Holden’s deposition that there was no old “incinerator scrubber”, it is my view that this is not the construction of a new facility, but is merely work that falls within the trade, business or occupation of Olin, within the meaning of Section 6 of the Workmen’s Compensation Act, LSA-R.S. 23:1061. It seems clear to me, that if this were a workmen’s compensation case, we would hold that the plaintiff is entitled to compensation benefits from Olin. This being true, he should not be allowed to sue Olin in tort.

For the reasons assigned, I think the summary judgment rendered by the district court should be affirmed.


text:
    Albert HOWARD et al., Plaintiffs-Appellants, v. Jessie PONTHIEUX et al., Defendants-Appellees.
    No. 5340.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 20, 1976.
    Rehearing Denied March 11, 1976.

      Dorsey C. Martin, III and Roy Maughan, Baton Rouge, for plaintiffs-appellants.
    Gist, Methvin & Trimble by James T. Trimble, Jr., Kramer & Kennedy by Ralph Kennedy, Provosty & Sadler by William H. deLaunay, Alexandria, for defendants-appellees.
    Before MILLER, WATSON and CUT-RER, JJ.
   WATSON, Judge.

Plaintiffs, Johnny C. Harris and Albert Howard, respectively a driver and his guest passenger, were injured when a GMC pickup truck under tow by a wrecker broke loose and collided with their vehicle. Named defendants were: Jessie Ponthieux (also known as Joseph Ponthieux), d/b/a Jessie’s Auto Salvage, the owner and operator of the wrecker; Edward Earl Johnson, who had been driving the pickup prior to the towing; Hartford Accident and Indemnity Company, the insurer of the pickup; and Allstate Insurance Company, the liability insurer of Albert Howard. Allstate filed a third party demand against Ponthieux and Harris. Allstate was subsequently dismissed as a defendant after it settled Howard’s claim as his uninsured motorist carrier for $4,000. The trial court concluded that there was no coverage under Hartford’s policy because the insured pickup was being used in connection with an automobile business at the time of the accident and thus was within a policy exclusion. The trial court rendered judgment dismissing plaintiffs’ claims against Johnson and Hartford and Allstate’s claim against Harris. The judgment recognizes a bankruptcy decree discharging Ponthieux from any liability. Although no defendants were cast in judgment, there was an award to Howard of $10,463.68; an award to Harris of $6,697.40; and an award to Allstate of $4,000 to be paid out of the award to Howard. Plaintiffs, Harris and Howard, were cast for all costs.

Plaintiffs have appealed, contending that the trial court erred in finding that Hartford’s policy excludes coverage. We affirm.

The primary issue is whether Hartford’s policy excludes coverage for this accident.

The Harris vehicle was .proceeding west on Willow Glen Road in or near Alexandria, Louisiana, when a GMC pickup being towed in the opposite direction by Ponthieux broke loose from the tow and hit the Harris vehicle head-on in the westbound lane of traffic. The Johnson vehicle had previously sustained damage to the right front-end, and Ponthieux had picked it up on MacArthur Drive. The tow chain broke on the right side when he hit a bump in the road. Ponthieux did not realize the chain had broken until the accident occurred. The chain was two or three weeks old and had performed satisfactorily prior to this occasion. After the second accident, Ponthieux stored the Johnson pickup overnight and took it to Russell Carmouche’s Pineville Garage the next morning. Ponthieux iá in the towing and salvage business and sells used parts from junked and wrecked cars. He owns five wreckers. Ponthieux said he stores cars for brief intervals, the longest period being about three weeks.

The named insured in Hartford’s policy is Eddie P. Johnson & Sons Asphalt Paving Co., Inc. Edward Earl Johnson is one of the “Sons” and was driving the GMC pickup owned by the corporation when the first accident occurred.

Hartford’s policy provides in Part I under coverage that the insurance covers damages:

“. . . caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile . . . ”

Under “Part II. Persons Insured” is included :

******
“(c) any . . . person while using an owned automobile . . . with the permission of the named insured, provided his actual operation or [if he is not operating] his other actual use thereof is within the scope of such permission, . . . ”

But the policy says:

“None of the following is an insured:
* * * >Jí jfí iji
“(v) any person while employed in or otherwise engaged in duties in connection with an automobile business,..."
Automobile business is defined as:
“. . . the business or occupation of selling, repairing, servicing, storing or parking automobiles . . .”

The trial court concluded that the pickup was in use at the time of the accident on the basis of American Fire & Casualty Co. v. Allstate Ins. Co., 214 F.2d 523 (U.S. App. 4 Cir. 1954), which involved a jeep under tow, and contains the following language:

“The jeep was moving on the road by means of its own running gear and al-' though it was not employing its own power unit, it was subject to the vicissitudes and dangers of travel on the public highway and was being propelled under circumstances not infrequently encountered. It cannot be said that the employment of the vehicle in such a manner was so unusual as not to have been within the contemplation of the parties to the insurance contract, and it would violate the usual rule of liberal interpretation of such an agreement in favor of the insured, if it should be held that a car being transported under the circumstances was not actually in use.” 214 F.2d 525

This view is supported by the language in Part II of the Hartford policy which indicates that use can include something other than operation of a vehicle. See Baudin v. Traders & General Insurance Company, 201 So.2d 379 (La.App. 3 Cir. 1967); writ refused 251 La. 224, 203 So.2d 557, which discusses the jurisprudence in regard to whether an accident is one arising out of the use of an automobile.

“It has been recognized that the term ‘use’ ... is not limited to those actually operating or driving the motor vehicle but extends to those who have such a right of control over the vehicle as to impose a legal responsibility upon them for the use of the vehicle.” 7 Am.Jur.2d, Automobile Insurance § 110.

Unquestionably, Ponthieux was using the pickup owned by Hartford’s insured with the permission of the named insured. Therefore, his use is covered by the policy unless he falls within the exclusion as a person engaged in duties in connection with an automobile business.

The trial court found that Pon-thieux’s business included storage of automobiles. There is no manifest error in this factual finding. The trial court then concluded that Ponthieux was in the automobile business within the definition in Hartford’s policy. Deville v. United States Fidelity & Guaranty Co., 258 So.2d 694 (La.App. 3 Cir. 1972), concerned an automobile dealer’s employee who had picked up a customer’s automobile to be serviced. The employee was held to be employed and engaged in the automobile business and within a policy exclusion identical to that here. Following the reasoning in Deville, Ponthieux was taking the Johnson automobile to his place of business for storage and was in the automobile business within the definition in Hartford’s policy. The opposite conclusion was reached by the second circuit in an older case, Dumas v. Hartford Accident & Indemnity Company, 181 So.2d 841 (La.App. 2 Cir. 1966). The discussion of Dumas at 27 La.Law Review 526 points out that the cost of protecting use of an automobile by a garage should properly be borne by the business rather than the individual owner. The recent case of Northern Assur. Co. v. State Farm Mut. Auto. Ins. Co., 320 So.2d 343 (La. App. 2 Cir. 1975), discusses Dumas and Deville, supra, in considering a similar but broader exclusionary clause. The second circuit concluded in Northern that an automobile being returned to its owner by a dealer’s employee after servicing was in a use arising out of the operation of an automobile business.

Since Ponthieux was taking the Johnson vehicle to be stored at his auto salvage business when this accident occurred, the Johnson automobile was being used by a person “. . . employed in or otherwise engaged in duties in connection with an automobile business, . . .”. Thus, coverage under Hartford’s policy is excluded.

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

All costs are assessed against plaintiffs-appellants, Johnny C. Harris and Albert Howard. >

Affirmed.