text:
    Vonnie FOUNTAIN, Plaintiff-Appellee, v. ANACOCO SAND & GRAVEL, INC., Defendant-Appellant.
    No. 6168.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.

      McReynolds & Jantz, Wilbert E. McRey-nolds, DeRidder, for defendant-appellant.
    Herman I. Stewart, J., DeRidder, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON, and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This case is brought under the federal Fair Labor Standards Act (FLSA), 29 U.S. C.A. § 201, et seq. We have jurisdiction of the subject matter under 29 U.S.C.A. § 216(b).

Plaintiff, Vonnie Fountain, was employed by defendant corporation, Anacoco Sand & Gravel, Inc. (Anacoco), from March 26, 1971, to November 26, 1971, as a plant foreman. Defendant corporation is engaged in the mining of sand and gravel at Anacoco Creek in Vernon Parish. Fountain was paid $25.00 per nine hour day and overtime for all working time over nine hours per day at one and one-half times the regular rate.

Anacoco terminated Fountain’s employment for cause. Fountain reported his former employer to the United States Department of Labor. It was determined from an investigation by the Department that Ana-coco owed its employees various sums for overtime compensation. Defendant paid or attempted to pay all of the employees except the plaintiff. Defendant contends that it does not owe plaintiff overtime compensation because of different setoffs it feels it has against the plaintiff. The corporation claims that Fountain took, upon leaving the plant, a barbeque pit made with its materials and labor. It also claims that Fountain used a company loader for his personal use.

Attempts to negotiate a settlement were futile. During the negotiations defendant unconditionally agreed to a waiver of prescription. Suit was filed on May 21, 1973. Defendant filed a preemptory exception of no cause of action. Argument was held in open court on April 17, 1974, and the trial judge allowed plaintiff to amend his petition. Defendant excepted to the amended petition on the basis of prescription, but the trial court rejected the exception.

Trial on the merits began on February 25, 1975. The trial court rendered judgment in favor of plaintiff for $511.29 as unpaid overtime wages, $511.29 as liquidated damages, and $350.00 as attorney’s fees. Defendant’s application for a new trial was denied and it appeals.

Defendant argues on appeal that the trial court erred in rejecting his exception of prescription. Defendant admits that it agreed to waive the running of prescription during negotiations for a settlement. It contends, however, that the waiver only applied to the original petition filed by the plaintiff. This petition did not set forth with particularity that the action was being brought under the FLSA. It simply alleged that plaintiff was employed by the corporation and that he did not receive overtime compensation to which he was entitled. The trial court, at the hearing for defendant’s exception of no cause of action, allowed plaintiff to amend his petition in order to cure this defect. Defendant maintains that the amended petition stated a new cause of action and that, therefore, it did not relate back to the date of the filing of the original petition as provided by La. Code of Civil Procedure Article 1153. Defendant further maintains that since its waiver of prescription only applied to the original petition its exception should be sustained.

We find no merit in defendant’s contention. In order for a waiver of prescription to be valid there must be some ac-knowledgement of a disputed claim as well as a clear intent to interrupt the running of prescription. Civil Code Article 3520; Wooden v. Hartford Insurance Company, 335 So.2d 742 (La.App.2nd Cir. 1976); Dunham Concrete Products, Inc. v. Donnell Construction Company, 268 So.2d 104 (La. App.1st Cir. 1972); Credit Service Corporation v. Prack, 270 So.2d 643 (La.App.2nd Cir. 1972); Marathon Insurance Company v. Warner, 244 So.2d 353 (La.App.2nd Cir. 1971).

Defendant clearly manifested an intent to waive the running of prescription by a letter sent through its counsel to plaintiff’s attorney. This letter, filed into evidence, clearly states that the running of prescription was waived “on any claim for back wages which Vonnie Fountain might have against Anacoco Sand & Gravel, Inc.” Neither time limitations nor any qualifications were stated in the letter. Defendant’s commitment thus extended to both the original and amended petition. We have been cited no authority nor given any reason why an unqualified waiver of prescription would extend only to plaintiff’s original petition and not to plaintiff’s amended petition.

We find it unnecessary to determine whether the amended petition properly dates back to the original petition. This issue is irrelevant for the reason that even if the amended petition does not date back it was still filed timely.

Defendant also argues that the trial court erred in rejecting its reconventional demand. Defendant filed a reconventional demand for reimbursement for a barbeque pit allegedly made on company time with company material and for the rental value of a loader belonging to the defendant, used by the plaintiff at his home. The trial judge, in his written reasons, found that no proof was adduced to support this claim. We have reviewed the record and agree with the result reached by the trial judge.

Although Fred W. Roberson, Jr., President and principal stockholder of the defendant corporation, gave limited testimony in support of the reconventional demand, Fountain emphatically stated that the barbeque pit was made by himself and a co-worker with his own materials and equipment after quitting time. He also testified that the company loader was used with the permission of the company’s management. Where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We do not find error on the part of the trial court in rejecting plaintiff’s reconventional demand.

Defendant’s next contention is that the trial court erred in awarding liquidated damages to the plaintiff. 29 U.S.C.A. Section 216(b) provides in part:

“Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.”

This mandatory language has been modified, however, by 29 U.S.C.A. § 260 which provides:

“In any action commenced prior to or on or after May 14, 1947 to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title.”

The burden of proof is upon the employer to show good faith and reasonable grounds for withholding overtime compensation to his employees. Wide discretion is given to the trial judge in determining whether the employer is actually in good faith. E.g. King v. Board of Education of City of Chicago, 435 F.2d 295 (7th Cir. 1970), cert. den. 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971); Snell v. Quality Mobile Home Brokers, 424 F.2d 233 (4th Cir. 1970); Foster v. Irwin, 258 F.Supp. 709, (E.Dist.La.1966).

Looking to the record in this ease, we observe that the Wage and Hour Division of the Department of Labor found that the employer owed overtime compensation to fifteen of its employees. Thirteen employees were paid and an attempt to pay a fourteenth employee was made. Only the overtime compensation owed to plaintiff was withheld, forcing plaintiff to bring this legal action. Under these circumstances we do not find that the trial court erred by awarding liquidated damages.

Defendant’s final contention upon appeal is that the trial court erred in denying its motion for a new trial. Article 1972 of the Louisiana Code of Civil Procedure gives the situations in which a new trial must be granted by the trial court. The Article provides:

“A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) Where the judgment appears clearly contrary to the law and the evidence;
(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
(3) In jury cases, as provided in Article 1814.”

Section (3) is not applicable because this was a non-jury trial. Regarding Section (1), defendant claims that the trial court was in error in determining its bad faith. We have already determined that there was no error and, therefore, a new trial did not have to be granted on this basis.

With regard to Section (2), defendant states that it believed plaintiff’s exception of prescription to its reconventional demand for the value of the barbeque pit and use of the loader was sustained. It claims that its presentation of evidence supporting the demand was cut short and that it should be granted a new trial on that basis.

We find no merit to this argument. Although there is no specific ruling on the exception in the record, the trial judge obviously considered the demand viable because he stated in his written reasons that the claim was rejected for lack of merit. Furthermore, evidence concerning the barbeque pit and loader would still have been relevant to the issue of good faith. In fact, testimony on this point from both sides does appear in the record. Defendant has not shown that any additional evidence could not have been obtained before trial. We therefore find no error in the denial of a new trial on this basis.

For the above reasons the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . 29 U.S.C.A. § 216(b) makes the awari for attorney’s fees mandatory.

      . 29 U.S.C.A. § 255(a) provides for a two year statute of limitations for actions for unpaid compensation brought under the FLSA where the employer’s violation is not willful.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Patsy Boney VILLEMARETTE, Plaintiff-Appellee, v. Clarence VILLEMARETTE, Jr., Defendant-Appellant.
    No. 6176.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.

      Boatner & Luke, John A. Boatner, Jr., Bunkie, for defendant-appellant.
    Lee & Lee, James N. Lee and Nelson M. Lee, Bunkie, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff obtained a judicial separation from her defendant husband on January 13, 1976. The judgment awarded her custody of the two minor children born of the marriage and alimony and child support in the amount of $800.00 per month plus medical and hospital expenses. Plaintiff subsequently filed suit for divorce, on the ground of no reconciliation between the parties for more than one year, permanent custody of her two children and alimony and child support. In April of 1977 judgment was rendered and signed by the trial court granting plaintiff a divorce; custody of .the two minor children; an award of child support in the amount of $300.00 per month plus medical and hospital expenses; and, an award of alimony to plaintiff in the amount of $625.00 per month. Defendant appeals from only that part of the judgment which awards his former wife alimony. Plaintiff has answered the appeal expressing satisfaction with the trial court judgment.

Under R.C.C. Article 160 a wife who has obtained a divorce is entitled to alimony not exceeding one-third of her former husband’s income, upon proof that she was without fault and is without sufficient means for her support. Defendant-appellant concedes that his wife obtained the divorce and is without fault. He contends, however, that the trial court erred in finding that plaintiff is without sufficient means for her support because, he asserts, the evidence shows that plaintiff, although unemployed, is capable of working and supporting herself. Alternatively, appellant contends that the trial court erred in granting an award of alimony which is excessive.

We find no merit in either of appellant’s contentions and affirm.

The issue raised by appellant’s first assignment of error was squarely passed upon by our Supreme Court in the recent case of Ward v. Ward, 339 So.2d 839 (La.1976). In the cited case the court stated in part as follows:

“If the wife is unemployed, however, and receives no earnings, her earning capacity or potential income is not a proper basis for rejecting alimony. Earning capacity alone does not fail within the definition of ‘means’ in Article 160.
After divorce, the wife has no analogous legal duty to earn her own livelihood, thus relieving the husband of his liability for alimony.
We hold, therefore, that the earning capacity of an unemployed wife does not bar her from alimony under Article 160 of the Louisiana Civil Code.” (emphasis ours)

Although unnecessary to our disposition of the above assignment of error, we observe that the record would clearly support a conclusion that plaintiff, because of her physical condition, is incapable of working and earning her own livelihood. In this connection the learned trial judge stated in his written reasons for judgment:

“She is not employed except for her housework. She suffers from phlebitis and a circulatory ailment that requires continuous medication and frequent hospitalizations.”

With regard to appellant’s second assignment of error suffice it to say that our examination of the record prompts us to conclude that the alimony award to the wife is within the range of discretion vested in the trial judge.

For the above reasons the judgment of the trial court is affirmed. Appellant is cast for all costs of this appeal.

AFFIRMED.


author: WATSON, Judge.

text:
    Eddie JONES, Plaintiff-Appellee, v. Charlie J. JONES, Defendant-Appellant.
    No. 6178.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Steven Young, Alexandria, for defendant-appellant.
    Gravel, Roy & Burnes by James J. Brady, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Appellant herein, Charlie J. Jones, neither appeared nor filed a brief in this matter prior to the time the case was called for oral argument. Pursuant to Rule VII, Section 5(b), Uniform Rules, Courts of Appeal, this appeal is considered abandoned, and is hereby dismissed at appellant’s cost.

Appeal dismissed.


text:
    Iris TULLIS, Plaintiff-Appellee, v. Bessie Brown AERTKER et al., Defendants-Appellants.
    No. 6181.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.

      Neblett, Führer & Flournoy by Mike Johnson, Gold, Little, Simon, Weems & Bruser by Harry A. Hammill, Alexandria, for defendant-appellant.
    Lemoine & Saucier by Wilbert Saucier, Pineville, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

This is an action for specific performance of an alleged contract to buy and sell real estate. The defendants are Bessie Brown Aertker, widow of Walter P. Aertker Sr., Walter P. Aertker Jr., and Betty Aertker Harwood, the widow and sole heirs of Walter P. Aertker Sr.

In her pleadings plaintiff alleges that on November 2, 1963 she entered into a contract with the late Walter P. Aertker Sr. wherein she agreed to buy and Aertker Sr. agreed to sell a house and lot located in Rapides Parish, Louisiana, described as Lot 1, Block 1 of the Esler Airport Subdivision. Plaintiff further alleges that when the contract referred to was executed she made a down payment to Aertker Sr. in the amount of $100.00 with a remaining balance of $6,150.00. She alleges further, that the balance remaining on said purchase price was paid in monthly installments of $45.00 with the final payment being made on November 1, 1975. Petitioner finally alleges that subsequent to the payment of the final installment she made demand upon defendants for execution of a deed translative of title to the described property pursuant to the written buy-sell agreement but her demand was without avail.

The alleged buy-sell agreement is in the form of a receipt which reads as follows:

“No._ C015044
DATE 11/2/1963
Cash_ Cheek_
Received
of Mrs. Iris Tullis $_if_
One Hundred & no/100 100 22
Address Down Payment House
For Esler Field Bal 13 Mos @ 4500
Unpaid
Balance $6150°° THANK YOU
PROTECTED RECEIPT CO,
FORM NO. 401 Bys/WP AERTKER
55.°° Per Mo W. P. Aertker”

Defendants filed answer to the petition of plaintiff admitting that they are the widow and sole heirs of the late Walter P. Aertker Sr. and that the latter had executed the receipt, copy of which has been set forth above. However, defendants denied that such receipt constitutes a valid buy-sell agreement alleging that such receipt simply acknowledged payment of funds to be deposited with Walter P. Aertker Sr. pending a deposit of sufficient funds to cover a down payment for the purchase of the real property described in plaintiff’s petition.

Defendants reconvened and by way of an alternative demand in reconvention assert that if the court should find that a valid contract to sell existed between Walter P. Aertker Sr. and Iris Tullis that upon execution of a contract of sale they be awarded judgment against Iris Tullis for the sum of $5,187.99 with interest at the rate of 8% per annum from November 1, 1975 until paid being the alleged balance due under the purported agreement to buy and sell.

The trial judge in written reasons for judgment granting plaintiff the relief sought and rejecting defendants’ reconven-tional demand, set forth his findings of fact and his conclusions of law based upon the evidence adduced as follows:

“This is an action for specific performance of a contract to buy and sell real estate. The defendants are the heirs and successors of Walter Patrick Aertker, Sr. and his widow.
On November 2, 1963 Mrs. Iris Tullis entered into a contract with Walter P. Aertker, Sr. whereby she was to purchase a house and lot near Esler Field.
The writing is on a regular receipt that is contained in the ordinary commercial receipts sold by various office supply stores. It acknowledged the payment of $100 as a down payment on a home on Esler Field and provides that the balance is to be in thirteen months at $45.00 a month. It recites that the unpaid balance is $6,150.00 and in the bottom left corner it provides for $55.00 a month.
Following the date of the execution of the instrument Mrs. Tullis occupied the house and has remained there ever since. She made payments at the rate of $45.00 per month during the period of time that she was on the premises until recently. According to my calculations she has paid in $6,760.00. Ten months after the execution of this contract Mr. Aertker died. After his death Mrs. Tullis made payments to Mr. W. P. Aertker, Jr. or to one of his employees or an employee of First Federal of Alexandria, of which he is president. No demand was ever made upon her to increase the payments from $45.00 per month to $55,00 per month.
There is really only one dispute between the parties. The defendants admit that everything that the plaintiff contends is correct except they contend that it was Mr. Aertker’s intention to get 8 per cent per annum interest on the purchase price until all the principal and interest were paid. All of the testimony by the defendants came in under a proffer of proof because of valid objection to parol evidence to vary the terms of a written contract. C.C. Art. 2276. A study of the evidence offered under the proffer of proof reveals that the parties are in agreement as to the purchase price as to the lot and the house, its location, and that the plaintiff is entitled to a deed translative of title. The defendants contend that it was Mr. Aertker’s intention that Mrs. Tullis was to pay $100 down and $45.00 a month for 13 months and that these payments would constitute a down payment and at this time a new instrument would be executed which would be a sale and mortgage calling for the remainder of the purchase price at $55.00 per month plus 8 per cent per annum interest. This 8 per cent per an-num interest is pure speculation and conjecture on the part of the defendants. There is nothing in the instrument providing for any interest. They make this contention because of their past knowledge of Mr. Aertker’s usual practice of charging 8 per cent per annum interest on unpaid balances of purchase price. It may or may not be that he intended to charge Mrs. Tullis any interest. She at one time worked for Mr. Aertker and it may be that he didn’t intend to charge her any interest because of her past services to him. Regardless of whether it was his intentions or not it was not put in the written instrument and in order for it to be a collectable item it must be contained in the writing that Mr. Aertker drew up and gave to Mrs. Tullis .

Defendants have appealed urging that the trial court erred in finding that the writing above set forth, admittedly signed by the late’Walter P. Aertker Sr., constituted a valid buy-sell agreement. Plaintiff-ap-pellee has answered the appeal and seeks damages and attorney’s fees for an alleged frivolous appeal.

Specifically, appellants contend that the written receipt above set forth does not and cannot constitute a valid buy-sell agreement because it does not set forth a clear understanding of the parties in writing as to the sales price and the method of payment nor does it contain an adequate description of the property intended to be covered thereby. We find no merit in appellants’ contentions and affirm.

LSA-R.C.C. Article 2462 provides in pertinent part as follows:

“A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same . . . ”

It is settled that a receipt for all or part payment of the purchase price is sufficient to satisfy the requirements of LSA-R. C.C. Articles 2440, 2462 and 2275 if such writing adequately sets forth the three necessary elements, i. e., the thing sold, the price, and the consent. Richards v. Nolan, 3 Mart.(N.S.) 336 (La.1825); Barfield v. Saunders, 116 La. 136,40 So. 593 (1906); Guice v. Mason, 156 La. 201, 100 So. 397 (1924); Lemoine v. Lacour, 213 La. 109, 34 So.2d 392 (1948); Bordelon v. Crabtree, 216 La. 345, 43 So.2d 682 (La.1949).

In the instant case the consent of the parties is clear. Mr. Aertker’s consent is evidenced by his signature on the receipt. Mrs. Tullis’ consent appears from the fact that following execution of the agreement of November 2, 1963 she moved onto the premises which she has continued to occupy and by the fact that she faithfully made the monthly payments as provided for in the agreement. Although plaintiff did not accept the contract in writing her acquiescence therein is clearly evidenced by her actions thereafter which are sufficient. Miller v. Miller, 335 So.2d 767 (La.App. 3rd Cir. 1976) and cases therein cited.

With regard to the thing sold, as found by the trial court, the parties are in complete agreement as to the property affected by the agreement, and its location. Although the written agreement does not contain a full and complete description of the property intended to be affected thereby it does contain a sufficient identification reference, i. e., “house-Esler Road” which allowed the introduction of parol testimony to particularly identify the property intended to be conveyed. As set forth in Harrill v. Pitts, 194 La. 123, 193 So. 562, 565 (La. 1940):

. the description in a deed will be sustained whenever the instrument affords any description by which the property can be identified, either through the description in the deed itself or by means of extrinsic, competent evidence .

See also Wolfson v. Succession of Lisso, 6 So.2d 231 (La.App. Orleans 1942).

Finally, although there is some ambiguity as to. the amount of stipulated monthly payments for liquidation of the balance of the sales price, there is no ambiguity as to the total sales price, or the amount of the balance due as of November 2, 1963, these being set forth with specificity in the written contract introduced in evidence. As to the ambiguity with reference to the amount of the stipulated monthly payments the court allowed the introduction of parol evidence and accepted the testimony of plaintiff-appellee that although the late Mr. Aertker Sr. originally desired to receive a $55.00 per month payment he condescended at the time the agreement was executed to accept $45.00 monthly. It is not disputed that the contract in question was prepared by Mr. Aertker Sr. and therefore under our rules of construction if ambiguous the contract is to be construed against him who prepared it. LSA-C.C. Articles 1957 and 1958. Monsur v. Thompson, 300 So.2d 655 (La.App. 3rd Cir. 1974). In any event, as found by the trial court, appellants accepted the payments as made by plaintiff over a period of twelve years without objection. Under these circumstances appellants cannot now urge that because of this ambiguity the contract is null or that Mrs. Tullís failed to comply with the agreement.

There is absolutely no merit in appellants’ contention that under the agreement Mr. Aertker Sr. was to receive 8% per annum interest on the remaining balance due. No reference whatever appears in the agreement as to interest. The trial judge properly sustained plaintiff’s timely objection to any parol evidence tending to show such an intention on the part of Mr. Aertker Sr. It is too well settled to require citation of authority that parol evidence is inadmissable to vary, add to or contradict the terms of a written contract. LSA-R. C.C. Article 2276.

Plaintiff has answered the appeal of defendants and seeks damages for an alleged frivolous appeal. Damages for frivolous appeal are not allowable unless the record clearly reflects that the appeal was taken solely for delay or that counsel is not sincere in the position which he advocates. Parker v. Interstate Life & Accident Insurance Company, 248 La. 449, 179 So.2d 634 (1965); Succession of Cutrer v. Curtis, 341 So.2d 1209 (La.App. 1st Cir. 1976), writ refused. Although we ultimately conclude that appellants’ contentions on appeal are without merit the'record does not reflect that the appeal was taken for the purposes of delay or that learned counsel for appellants was insincere in his view of the law. Accordingly, plaintiff-appellee is not entitled to damages for frivolous appeal.

For the above and foregoing reasons the judgment appealed from is affirmed and defendants-appellants are cast for all costs on appeal.

AFFIRMED.

      . The above represents an exact typewritten copy of the original receipt which could not be legibly reproduced for purposes of this opinion by photographing, xeroxing, etc. The printed matter on the receipt is underlined.


author: CULPEPPER, Judge.

text:
    Garland HOLBROOK, d/b/a Holbrook’s Restaurant Equipment Sales, Plaintiff and Appellee, v. Joseph R. PALERMO et al., Defendants and Appellants.
    No. 6182.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.

      Camp, Carmouche, Palmer, Carwile & Barsh, James E. Williams, Lake Charles, for defendants and appellants.
    Michael R. Garber, Lake Charles, for plaintiff and appellee.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   CULPEPPER, Judge.

This is a suit on an open account for goods and services sold to Uncle Pete’s Ice Cream Parlour, Inc. Named as defendants were the above corporation, Joseph Palermo, Jr., Palermo’s Construction Company and J. R. Palermo, Inc. Plaintiff obtained a default judgment against Uncle Pete’s Ice Cream Parlour, Inc. and Joseph R. Palermo, Jr. Suit against the remaining defendants was dismissed. The two defendants cast appealed.

The substantial issues on appeal are: (1) Was there such impropriety with regard to the default judgment that a new trial on the merits should be granted? (2) Was there sufficient evidence to support the default judgment against Uncle Pete’s Ice Cream Parlour, Inc. and Joseph Palermo, Jr.?

After certain exceptions were withdrawn in the trial court on March 2, 1977, the defendants failed to file any further pleadings. A preliminary default was entered on March 25, 1977, and a judgment by default was obtained on March 30, 1977, in favor of the plaintiff against Uncle Pete’s Ice Cream Parlour, Inc., Joseph Palermo, Jr., Palermo Construction Company, and J. R. Palermo jointly, severally and in solido in the sum of $5,590.13, together with interest and costs. Attorney’s fees of $750 were assessed solely against Uncle Pete’s Ice Cream Parlour, Inc., hereinafter referred to as “Uncle Pete’s”.

In proving his case, plaintiff relied on 21 invoices, a copy of the ledger covering the transactions with the defendants, and testimony of Mr. Holbrook. Some of the invoices noted that the goods were sold to “Uncle Pete’s Ice Cream Parlour, Inc.” Others had only “Uncle Pete’s Ice Cream Parlour”. Some had an additional notation “c/o Joe Palermo, Jr.”. All indicated the same address, “1601 Ruth St., Sulphur, Louisiana.”

The testimony of Mr. Holbrook on confirmation of default was that he had sold these goods and services between May and August of 1976 on open account to all of the named defendants. On August 18, 1976, he mailed letters to Uncle Pete’s and to Mr. Finley Hillard, an accountant who had been involved in the operation of Uncle Pete’s, requesting payment of the overdue account. He gave no explanation of how all the defendants could be liable to him for these debts.

A motion for new trial was filed by defendants, granted by the court, and held instanter to consider only the question of liability of defendants other than Joe Palermo, Jr. and Uncle Pete’s.

After the rehearing, the trial court amended its original judgment to hold liable only Joseph Palermo, Jr. and Uncle Pete’s Ice Cream Parlour, Inc. and not the other named defendants. The court also eliminated the award for attorney’s fees.

Defendant argues the default judgment was improperly taken. He says defense counsel was led to believe in a conversation with plaintiff’s counsel immediately after the exceptions were withdrawn, that defendants would be given additional time to plead. The case of Sokol v. Bob McKinnon Chevrolet, Inc., 307 So.2d 404 (La.App. 4th Cir. 1975) is very similar to the case at bar. As in Sokol, the evidence is the present case shows that regardless of defense counsel’s impression, plaintiff’s attorney did not mislead nor attempt to mislead his opposing counsel into thinking defendants would be allowed additional time within which to file pleadings. The trial judge correctly stated the letter from plaintiff’s counsel dated March 7, 1977, “clearly and unequivocally put an end to any agreement between counsel as to an extension of time in which to plead.” There was no impropriety nor ill practice by plaintiff’s counsel.

The second argument the defendant makes is that there was insufficient evidence to support the default judgment. The requirements for confirming a default judgment are set forth in LSA-C.C.P. Article 1702. We quote that article:

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
“When the sum due is on an open account, promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required. Amended by Acts 1968, No. 88 § 1.”

In confirming a default, the plaintiff has the burden of proving the essential elements of his claim as fully as if each of the allegations had been specifically denied. McCarthy v. Plaisance, 286 So.2d 454 (La. App. 1st Cir. 1973), writ refused 289 So.2d 156 (La.).

To establish his prima facie case, the plaintiff must use only competent evidence. Blackwell v. Daigle, 317 So.2d 18 (La.App. 3rd Cir. 1975); Verrette v. Saltzman & Gordon Welding Service, Inc., 248 So.2d 876 (La.App. 3rd Cir. 1971).

There is a presumption that a default judgment is supported by sufficient evidence, but this presumption does not attach when the record upon which the judgment is rendered indicates otherwise. Ascension Builders, Inc. v. Jumonville, et al., 262 La. 519, 263 So.2d 875 (1972); Baker Finance Company v. Hines, 255 La. 971, 233 So.2d 902 (1970).

In this case, the record shows the evidence was not sufficient to sustain a judgment against Joseph Palermo, Jr. individually. Plaintiff chose not to prove his case by producing an affidavit of the correctness of the account, as permitted by LSA-C.C.P. Article 1702. Instead, plaintiff took the stand and testified concerning the obligation allegedly owed him by all defendants. The only evidence presented to support the obligation was the ledger sheet, a number of invoices and the testimony of Mr. Holbrook.

The invoices and the account name Uncle Pete’s Ice Cream Parlour as the purchaser. Some of the invoices and the ledger sheet also have the notation “c/o Joseph Palermo, Jr.” No testimony was given by Mr. Hol-brook as to why Mr. Palermo should be held personally liable for the balance due and owing. As we noted earlier, Mr. Palermo’s name is not even on a number of the invoices. Counsel for plaintiff admitted that it was Uncle Pete’s Ice Cream Parlour to whom the goods were sold. We quote from page 66 of the record:

“THE COURT: Who are you asking for judgment for attorney’s fees against?
MR. GARBER: Specifically, Uncle Pete’s Ice Cream Parlour, Inc.
THE COURT: Uncle Pete’s Ice Cream Parlour, Inc., only, right?
MR. GARBER: Well, they are the actual defendant that the goods and were sent the notice through Finley Hillard.”

There is no evidence in the record which supports the trial court’s finding that Mr. Palermo should be personally liable for this debt along with Uncle Pete’s Ice Cream Parlour, Inc. None of the invoices show sales made to Palermo individually. No testimony by Mr. Holbrook states he understood or intended the sales were to Palermo individually. On the contrary, Holbrook’s testimony, quoted in part above, shows the goods were sold to Uncle Pete’s. We therefore reverse the trial court’s judgment with regard to Mr. Palermo individually.

The testimony of Mr. Holbrook, when considered with the documents submitted into evidence, does constitute a sufficient basis for sustaining the default judgment against Uncle Pete’s. We find no merit to the argument that there was no evidence of delivery of the goods to Uncle Pete’s. Mr. Holbrook testified the goods were sold and delivered to Uncle Pete’s Ice Cream Parlour, Inc. Uncle Pete’s Ice Cream Parlour was the named purchaser on each invoice. We find that the plaintiff’s evidence was competent and sufficient to establish each essential element of his case against Uncle Pete’s.

For the reasons assigned, the judgment appealed is reversed and set aside insofar as it casts the defendant, Joe Palermo, Jr., and judgment is hereby rendered rejecting plaintiff’s demands against Joe Palermo, Jr. In all other respects, the judgment is affirmed. All costs of this appeal are assessed against Uncle Pete’s Ice Cream Parl-our, Inc.

REVERSED AND RENDERED IN PART, AFFIRMED IN PART.


author: HOOD, Judge.

text:
    Clarence MONETTE, Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY et al., Defendants-Appellees.
    No. 6185.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Thomas & Dunahoe by Edwin Dunahoe, Natchitoches, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King by Herschel E. Richard, Jr., Shreveport, for defendant-appellee.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   HOOD, Judge.

Clarence Monette claims damages for personal injuries sustained by him as the result of a motor vehicle collision. The defendants are Bobby L. Hamous, The Aetna Casualty and Surety Company and State Farm Mutual Automobile Insurance Company. The trial court rendered judgment in favor of plaintiff, against defendants Ha-mous and Aetna, for $4,706.99. His demands against State Farm were rejected. Plaintiff appealed. We affirm.

The determining issue presented is whether the amount of the award made by the trial judge is inadequate and should be increased.

The accident occurred in Natchitoches Parish on December 27, 1975. While plaintiff was driving his son’s automobile with the latter’s permission, the car was struck in the rear by a vehicle being driven by defendant Hamous. Plaintiff was injured as a result of that collision. Defendants concede that the sole cause of the accident was the negligence of Hamous.

At the time of the collision, there was in effect an automobile liability policy issued by Aetna to Hamous, providing bodily injury liability coverage up to $5,000.00 for each person. There also was in effect at that time an automobile liability policy issued by State Farm to plaintiff’s son, covering the automobile which Mr. Monette was driving, which policy contained a provision for uninsured motorist coverage, up to a limit of $10,000.00 for injuries to each person.

As already noted, plaintiff instituted this suit against Hamous and both of the above insurers. Judgment was rendered by the trial court in favor of plaintiff, and against Hamous and Aetna, awarding plaintiff $4,500.00 as general damages, and $206.99 as special damages, making a total award of $4,706.99. Since the award was within the limits of the Aetna policy, plaintiff’s demands against State Farm were rejected. Monette appealed, seeking to have the trial court judgment amended by increasing the award. It is that appeal which is before us now.

Plaintiff sustained a whiplash-type injury to his neck, with some aggravation of a pre-existing arthritic condition, as a result of the accident. He contends that he also sustained an injury to his “right sternoclav-icular joint” as a result of that collision. He concedes that the award made by the trial court was adequate to compensate him for the injuries to his neck, but he argues that the court erred in failing to award him general damages for the injury to his ster-noclavicular joint, as well as special damages for the future medical expenses which he feels he will have to incur in treating that injury.

The trial judge assigned reasons for judgment, but he did not state in those reasons whether he found that plaintiff sustained an injury to his sternoclavicular joint as a result of the accident, or whether the judgment which he rendered was intended to include an award of general damages for such an injury. He also made no determination as to whether plaintiff would have to incur future medical expenses for the treatment of any of his alleged injuries.

Monette reasons that the trial judge “apparently found the sternoclavicular injury not related to the accident herein,” because the award of special damages was not sufficient to include the future medical expenses which necessarily would have to be incurred in treating such an injury. He contends that future medical expenses in the amount of approximately $1,300.00 would be required to treat the sternoclavicular joint injury, and that “had the trial court found the injury to the sternoclavicular joint related to this accident he would have certainly awarded these medical expenses, which he did not.”

The evidence shows that at the time of the trial plaintiff had a condition diagnosed as a partial dislocation or subluxation of the right sternoclavicular joint, and that that condition caused him to suffer pain. It is possible that at some time in the future surgery will be required to correct that condition, and that the cost of the surgery will be more than the amount of special damages which were awarded by the trial court. Considering the nature of that injury or condition, we agree with plaintiff that the trial judge felt that plaintiff did not sustain the injury to his sternoclavicular joint as a result of the accident which occurred on December 27, 1975. We have reviewed the record with that question in mind, and have concluded that there is no error in the judgment rendered by the trial court.

Plaintiff was 68 years of age when the accident occurred. For several years prior thereto he had suffered from arthritis in his right shoulder and in the lower back. Immediately after the vehicles collided, plaintiff was taken to the hospital where x-rays were taken of his neck, shoulder, chest and back. The x-rays showed no fractures or displacement of bones, and plaintiff was released and sent home about two or three hours after he arrived at the hospital.

Two days later, on December 29, Monette went to his family physician, Dr. Archie Breazeale, a general practitioner, and he was treated by Dr. Breazeale from that time until the date of the trial which took place on November 29, 1976. On his initial examination, Dr. Breazeale diagnosed plaintiff’s injuries as “moderate to severe cervical whiplash injury, with some associated injury that involved probably the right shoulder area and his lower back to some extent.” At that time, plaintiff did not complain of pain in his chest in the area of the sternoclavicular joint. Dr. Breazeale saw and treated plaintiff about once a month after the injuries were sustained, and he testified that the first time plaintiff complained of pain in the chest, or in the area of the sternoclavicular joint, was on July 13,1976, or more than six months after the accident occurred. He stated, as we understand his testimony, that Monette did not complain of pain in his shoulder after the first visit, and that by the time of the trial plaintiff’s neck pain was minimal. The doctor felt that plaintiffs primary discomfort since July, 1976, has been in the clavical area.

Dr. Breazeale testified that he would have expected plaintiff to experience pain in the chest immediately after the accident occurred if he actually had sustained an injury to his sternoclavicular joint at that time. He stated, in fact, that it would be highly unusual for a person who sustained that type of injury to be without chest pain for a period of six months after the accident. He nevertheless agrees that plaintiff now has a dislocation or subluxation of the right sternoclavicular joint, and he feels that that condition “is related to this accident.” He stated that he believes that plaintiff had the pain all along, and just did not complain about it.

Plaintiff was examined by Dr. Baer I. Rambach, an orthopedic surgeon, on August 3, 1976, and on two other occasions after that date. Dr. Rambach diagnosed plaintiffs condition as being a “subluxation to the ligaments of the sternoclavicular joint which resulted in a partial dislocation.” He stated that the condition could be remedied by surgery, but that he would not recommend that procedure unless the pain got bad enough for plaintiff to have to take narcotics. He does not feel that plaintiff has reached the point yet where he should submit to surgery. He estimated that the expenses of that type of surgical procedure would be in the neighborhood of $1,250.00 or $1,300.00.

Dr. Rambach thinks that plaintiffs condition resulted from trauma, either direct or indirect, and he feels that plaintiff would have suffered pain at or shortly after the time that trauma occurred. He stated that if plaintiff did not complain of pain in his chest, or in the area of the right sternoclav-icular joint, until about six months after the accident occurred, then he questions whether he sustained that injury at the time of the above automobile accident.

Monette testified that he complained to Dr. Breazeale of pain in his chest every time he was examined by the doctor. To that extent, at least, his testimony is in direct conflict with that of the doctor.

Applicable here is the established rule that the factual findings of the trial court are entitled to great weight, particularly when they involve a determination of the credibility of witnesses, and that his findings will not be disturbed by the reviewing court unless found to be clearly erroneous.

The trial court may, and should, assess the credibility of experts who testify at the trial, as well as that of lay witnesses, to determine the most credible and realistic evidence, and his determination of the credibility of those witnesses will not be disturbed unless found to be clearly erroneous. Green v. State, Southwest Louisiana Charity Hospital, 309 So.2d 706 (La.App. 3 Cir. 1975).

In the instant suit we believe the trial judge found that the abnormal condition of plaintiff’s right sternoclavicular joint was not caused by the accident alleged in his petition, and we cannot say that he erred in making such a finding. He would have been justified, we think, in rejecting plaintiff’s statements and accepting those of Dr. Breazeale that Monette did not complain of pain in his chest until more than six months after the accident occurred, and in concluding that plaintiff’s injury to his ster-noclavicular joint did not result from the accident which occurred on December 27, 1975.

If the trial judge found, instead, that the injury to plaintiff’s sternoclavicular joint was caused by the accident of December 27, 1975, we nevertheless cannot say that he abused his discretion in awarding plaintiff $4,500.00 as general damages, and in refusing to award the cost of future medical expenses for treating that particular injury. The evidence is convincing that plaintiff experienced no pain from that particular injury for at least six months after the accident occurred, and that the pain which he suffered after that time has not been severe enough to require him to use strong pain-killing drugs or to make surgery necessary. His other injuries clearly were of a relatively minor nature. The evidence also does not establish that plaintiff will have to have surgery to correct that injury. Assuming that all of the injuries alleged by plaintiff resulted from the above accident, therefore, we believe that the award made in this case is within the realm of the discretion which is vested in the trial court.

Regardless of which of the above factual conclusions were reached by the trial judge, therefore, we find no error or abuse of discretion in the amount of the award which was made to plaintiff by the trial court.

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

AFFIRMED.


text:
    Paul LAFLEUR, Plaintiff and Appellee, v. Olfert W. TOPP, Defendant and Appellant.
    No. 6190.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Ryder & Deshotels by Alfred Ray Ryder, Oberlin, for defendant and appellant.
    Perrell Fuselier, Oakdale, for plaintiff and appellee.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   CULPEPPER, Judge.

Plaintiff and defendant own adjacent tracts of land in Allen Parish. Plaintiff, Paul Lafleur, sues for an injunction (1) to prohibit the defendant, Olfert W. Topp, from maintaining a dam on defendant’s property which floods plaintiff’s property by interfering with a natural drain, and (2) to order defendant to lower the dam to the level which existed before defendant raised it in 1974. From a judgment granting the injunction, defendant appealed.

The substantial issues on appeal are: (1) Has the defendant created a work on his property (the lower estate) which impedes the natural servitude of drainage of waters from the plaintiff’s dominant estate through the servient estate? (2) Has defendant acquired a predial servitude by ten years acquisitive prescription entitling him to impound water on plaintiff’s land? (3) If it is decided that a spillway must be constructed through defendant’s levee, who must bear the cost?

Plaintiff owns forty acres adjacent to the north of defendant’s eighty acres in a rural wooded area. A graveled public road runs parallel to the western boundaries of both tracts. A natural drain runs in a southwesterly direction across the southeast corner of plaintiff’s forty acres and then onto defendant’s property where it turns more toward the west and runs to the western boundary of defendant’s land. It then flows underneath the parish road through a twin culvert and on to the Calcasieu River.

For many years before 1974, a dam or levee existed on defendant’s property along the east side of the public road. This dam impounded water on defendant’s property in the natural drain. After heavy rains, water would also back up onto plaintiff’s land, requiring several days to drain off.

In late 1974, dirt work was done on the levee. Workmen filled in a gap cut several years before situated directly opposite the culverts running under the public road. Plaintiff contends, and the trial court found, that this raised the level of the dam two or three feet, causing water to stand on at least several acres of plaintiff’s property on a permanent basis.

In February of 1975, plaintiff sought an injunction to prohibit defendant Topp from maintaining the dam so as to impound water on plaintiff’s property. In May of 1975, the trial judge ordered defendant Topp to allow the Allen Parish Police Jury to construct a spillway on the levee so as to drain all impounded water from plaintiff’s land.

The Police Jury refused to do the work. Plaintiff came back into court in December of 1975 again seeking the same relief. This time defendant Topp was permanently enjoined from maintaining the levee so as to flood plaintiff’s land. He was also ordered to build a spillway ten feet wide and low enough to drain water impounded on the land of Paul Lafleur.

Plaintiff correctly relies on LSA-C.C. Article 660, “Natural Drainage”, as the basis for his action. We quote that article:

“It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.
“The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.
“The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.”

The record reveals conflicting testimony as to the 1974 work on defendant’s levee. Plaintiff’s witnesses testify that only since the 1974 work has there been substantial and permanent flooding of plaintiff’s land. Witnesses for the defense said there was no increase in the size or depth of the lake over the last several years.

The trial judge found that the levee in question was raised in 1974, and that this did result in the permanent impoundment of water on plaintiff’s land. The evidence furnishes a reasonable basis for these findings of fact. We will not disturb that finding. Therefore, plaintiff’s rights under LSA-C.C. Article 660 have been violated.

Defendant contends plaintiff must be denied the relief he seeks because of defendant’s right, acquired by ten years acquisitive prescription, to maintain the levee and impound the water in its present condition.

The trial court referred defendant’s exception of acquisitive prescription to the trial on the merits. This was proper, since such an exception was in effect an affirmative defense. We find the exception without merit. Since there was a substantial increase in the height of the dam in 1974, and testimony that in 1975 even more dirt was added raising the levee even higher, it is clear that defendant has acquired no right to maintain the dam in its present state. Defendant has a right to maintain the levee only in a way which will not result in water being impounded on Mr. Lafleur’s property any more than it did before the 1974 work was done on the levee.

The next issue is who should bear the cost of constructing the spillway as directed by the trial court? Defendant contends that the lake is of no benefit to him, that it is plaintiff and his neighbors who use the land owned by Mr. Topp and who benefit from it. We do not agree that Mr. Lafleur should bear the cost. It was the defendant’s work which caused the flooding of Mr. Lafleur’s property. It is the defendant’s work which prevents the drainage of water from a higher estate to a lower estate. The costs of constructing a spillway as directed by the court must be assessed against defendant.

Defendant makes a final argument that the judgment appealed is too vague to be enforced, and that a further survey will be necessary to determine the exact height of the spillway. The permanent injunction prohibits defendant from maintaining a levee which impounds water on the plaintiff’s land. It is further directed that a spillway be built by defendant, and at his expense, low enough to drain any water impounded on the plaintiff’s property.

The record is not entirely clear as to whether any water was impounded on plaintiff’s land before the levee was raised in 1974. Therefore, we think it is advisable to add to the judgment a provision that the spillway be constructed in such a manner that it will not cause more water to be impounded on plaintiff’s land than was impounded before the levee was raised in 1974. Essentially, this is the relief to which plaintiff is entitled.

For the reasons assigned, the judgment appealed is amended by adding the following provision: “The spillway to be installed by defendant shall be constructed in such a manner that it will not cause more water to be impounded on plaintiff’s land than was impounded before the levee was raised in 1974.” Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the defendant.

AFFIRMED, AS AMENDED.


author: DOMENGEAUX, Judge.

text:
    Wilmer G. GATHERIGHT et ux., Plaintiffs and Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants and Appellees.
    No. 6194.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.

      Ford & Nugent by Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.
    Gist, Methvin & Trimble, David A. Hughes, Vincent Hazleton, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This case arose out of a vehicular accident on February 14, 1976, between a 1975 Chevrolet driven by Lillian Gatheright, plaintiff-appellant, and a 1971 Dodge driven by Martha J. Goudeau, defendant-appellee. The collision occurred in the parking lot of a Shipley Do-Nuts Shop in Alexandria.

Mrs. Gatheright and her husband filed suit against Ms. Goudeau, an uninsured motorist, and their insurer, State Farm Mutual Automobile Insurance Company, under the uninsured motorist provision of their policy. Plaintiffs sought recovery for: (1) general damages for personal injuries sustained by Mrs. Gatheright; (2) special damages for lost wages, hospital, and medical expenses; and (3) the deductible portion for which Mr. Gatheright was responsible for repairs to his automobile under his collision insurance coverage.

The defendants denied negligence on the part of Ms. Goudeau, and alternatively pleaded the contributory negligence of Mrs. Gatheright. Ms. Goudeau additionally reconvened against the Gatherights and State Farm for the damages to the Goudeau vehicle in the sum of $387.43.

After trial on the merits, the district judge found that the accident was caused by the exclusive negligence of Mrs. Gathe-right and rejected all demands made by her and her husband. Ms. Goudeau was awarded judgment against Mr. and Mrs. Gathe-right and their insurer, State Farm, for the damage to her Dodge in the amount of $387.43. All costs were assessed solely against Mr. and Mrs. Gatheright. Plaintiffs have appealed.

The issues are: (1) Were the factual findings of the trial judge supported by the evidence, with particular reference to the respectively alleged acts of negligence by Ms. Goudeau and Mrs. Gatheright; (2) In the event that we reverse and hold for plaintiffs, what damages are the latter entitled to; (3) Did the trial judge abuse his discretion in refusing to assess costs to State Farm.

The trial judge rendered written reasons for judgment and our review of the record substantiates the basic facts of the accident as found by him. He stated that:

Shipley DoNut is located on Jackson Street Extension. The building is set back from the street and there is parking in front of the building, with vehicles facing the building, as well as vehicles facing Jackson Street. Jackson Street is a four lane street running east and west. To the east side of Shipley DoNut is Windsor Place Street. There is entry onto the parking lot from Jackson Street and Windsor Place. The travel lane between the cars parked facing the building and the cars parked facing Jackson Street runs across the front of the building directly into Windsor Place.
The defendant was in the.parking lot travel lane proceeding in an easterly direction parallel to Jackson Street toward Windsor Place. The defendant intended to traverse the parking lot and exit on Windsor Place Street. She was traveling at an extremely low rate of speed. She was driving between two rows of parked cars. The plaintiff, prior to the accident, was proceeding on Jackson Street in a westerly direction. She made a right turn into the parking lot at the Jackson Street entrance. As soon as the plaintiffs’ car had gotten fully into the parking lot the collision occurred. Due to the fact that plaintiff had driven into the parking lot at least one car length the point of impact would have been well within the parking lot. The plaintiff was in a hurry to get into the parking lot and off Jackson Street because Jackson Street is a heavily traveled street and it is not safe for one to linger in making a turn on this street.
The defendant had already entered the parking lot, proceeded around the back of the business establishment, around to the drive-in window on the west side of the building, and purchased two cups of hot chocolate. She moved forward from the drive-in window, turned left and got into the travel lane that would lead her out of the parking lot onto Windsor Place Street. The plaintiff was just entering the parking lot when the accident occurred. Her entrance was barely more than the length of her car.”

Inasmuch as the collision took place in the parking lot and not on a public thoroughfare, the general tort law of our state is applicable. The Highway Regulatory Act (La.R.S. 32:1 et seq.) is not controlling. Cavalier v. Peerless Insurance Company of Keene, New Hampshire, 246 La. 336, 164 So.2d 347 (1964); Chaney v. Brumfield, 333 So.2d 256 (La.App. 1st Cir. 1976); Kemp v. Young, 306 So.2d 922 (La.App. 1st Cir. 1974); Bizette v. Lastilla, 238 So.2d 767 (La.App. 1st Cir. 1970). In Day v. Allstate Insurance Co., 223 So.2d 461, 463 (La.App. 1st Cir. 1969), the Court specifically stated that “where automobile accidents occur on privately owned property, as distinguished from public streets and thoroughfares, liability is determined in accordance with general tort law.”

Although we stated in Dohmann v. Richard, 282 So.2d 789 (La.App. 3rd Cir. 1973), that the Highway Regulatory Act may be of persuasive value in determining the degree of care expected of a motorist in the operation of his vehicle in a non-thoroughfare accident, we agree with the trial judge that the facts in this case do not lend themselves to an application of the Highway Regulatory Act. We approve of the reasoning and analysis of the trial judge when he said:

The parking lot of Shipley DoNut consists of multi direction lanes which are unmarked and uncontrolled intersecting points. Rather than apply the rule that the vehicle to the right in an uncontrolled intersection has the right-of-way, as delineated by the Highway Regulatory Act when dealing with public roads, the more suitable solution would be to require a duty of ‘due caution’ as set forth by the First Circuit in Chaney v. Brumfield, supra, where the Court stated as follows:
‘Further, we can not apply the rule that at uncontrolled intersections the vehicle on the right is generally considered to have the right-of-way. Particularly, in the instant situation where we have a parking lot with numerous multidirecton lanes. The better rule to apply in the instant matter is that both vehicles be required to proceed with due caution.’
Particularly is this true in this case because the defendant was already in the parking lot, as a matter of fact she was making her exit. The plaintiff was entering the parking lot. Reason would dictate that the plaintiff should be the one to be on a look-out for other cars that were already in the parking lot and moving in the lane of travel. While the lanes were not marked the plaintiff in effect was crossing a lane of travel. Even though it was not marked, it was obvious to anyone that would look, because the area was between the cars that were parked facing Jackson Street and the cars parked facing the building (away from Jackson Street).
Mrs. Gatheright stated that she was traveling at 30 to 35 miles an hour down Jackson Street prior to her approaching the entrance into the donut shop. She finally stated, after much insistence by defense attorney, under cross-examination, that the defendant had made her left turn and was heading toward Windsor Place street and that the plaintiff was in her turn to the right when she first observed the defendant’s vehicle. She stated that she felt that all of her wheels were off Jackson Street at the time of impact. As she would make her turn she would be facing the parking lot at an angle toward her left. After her vehicle came to rest it was at an angle toward the right. She seeks to overcome the fact that her vehicle was beyond the point of impact after it came to rest by stating that someone moved it. Of course no one moved it because there was no one there to move it and no one else had any reason to move her car. The physical evidence indicates quite clearly that the plaintiff did not apply her brakes as she stated. Everytime she was asked about her observation of the defendant’s vehicle and what she did she gave repeated, insistent stereotyped statement that she honked her horn and jammed her brakes.”'

The trial judge’s final analysis of this controversy is aptly stated as follows:

“The defendant was traveling across the parking lot at a very slow pace at the time of the accident. The plaintiff, however, was apparently moving relatively fast as evidenced by the fact that her car came to rest some distance past the point of impact. The plaintiff obviously breached her duty of proceeding with due caution by traveling at such a fast pace within the confines of the parking lot with other traffic present and her lateral vision obstructed by parked cars. This breach of duty was the proximate cause of the accident. This negligence on the part of the plaintiff will preclude her recovery from the defendant and barring negligent conduct by the defendant will result in her liability to the defendant.

The trial judge went on to find that Ms. Goudeau was observing her duty of due caution under the circumstances of this case, and was not guilty of any negligence to which the accident could have been attributed. We find no error in this conclusion.

The trial judge in his written reasons for judgment was very explicit in his analysis of the various witnesses who testified concerning the facts of this case. In no uncertain terms he placed little reliance upon the testimony of the plaintiff driver and some of the independent witnesses. He was equally explicit in stating that he was impressed by the testimony of the defendant, Ms. Goudeau. We find that the evidence before the trial judge, upon which he expressed his conclusions of credibility and reliability, furnished a reasonable factual basis for his findings. Our overview of this record constrains us to affirm the judgment of the trial court to the effect that the exclusive causal negligence herein was that of Mrs. Gatheright, resulting in a rejection of plaintiffs’ demands, and the granting of defendant, Ms. Goudeau’s claim for property damages. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976); Pierre v. Landry, 341 So.2d 891 (La.1977).

Having so concluded we find it unnecessary to reach the question of damages claimed by plaintiffs.

Appellants complain of their having been cast for costs individually, rather than jointly with State Farm. State Farm’s policy provides:

“Supplementary Payments. To pay, in addition to the applicable limits of liability:
(a) all expenses incurred by the company, all costs taxed against the insured in any such suit and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company’s liability thereon; . . ”

It appears to us that the trial judge assessed all costs against Mr. and Mrs. Gathe-right “as plaintiffs” rather than as “defendants in reconvention”. If Ms. Goudeau had not reconvened for her property damages and this was simply a suit by the Gathe-rights against State Farm under the uninsured motorist provisions of its policy, then surely they could not be heard to complain, once they lost their suit against State Farm, and were cast for costs. It seems to us that the provisions of the policy quoted above deals with State Farm’s obligation to pay, on behalf of its insured, court costs incurred by the insured in the defense of a suit brought by a third party, not costs incurred as a result of a suit by the insured against the insurer, where the insured loses.

Article 1920 of the Louisiana Code of Civil Procedure reads:

“Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

The annotations under this Article are legion to the effect that the trial court has wide discretion in the assessment of costs and may assess costs, or any part thereof, against any party, as it may consider equitable. In this case the practical totality of the evidence has to do with the claim of the plaintiffs against its insurer, State Farm, and the other defendant, Ms. Goudeau. Considering all facets of this case we cannot say that the trial judge was manifestly erroneous, or abused his discretion in assessing costs solely against Mr. and Mrs. Gathe-right.

For the above and foregoing reasons the judgment of the district court is affirmed, at appellants’ costs.

AFFIRMED.

WATSON, J., concurs in the result.

      . The facts of the case at hand form no corollary to those in Dohmann and that case is therefore distinguished. We find no Highway Regulatory Act mandate which would be of value as a substitute for general tort law under La.C.C. 2315.


author: FORET, Judge.

text:
    Leo CLARK, Plaintiff-Appellee, v. ALEXANDRIA CONSTRUCTION COMPANY et al., Defendants-Appellants.
    No. 6198.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.

      Gary & Field, Thomas R. Elkins, Baton Rouge, for defendants-appellants.
    Perrell Fuselier, Oakdale, for plaintiff-appellee.
    Before HOOD, CULPEPPER and FORET, JJ.
   FORET, Judge.

In the early morning hours (approximately 6:30 o’clock A.M.) of June 3, 1975, there was a two-vehicle collision between a log truck owned and operated by plaintiff, Leo Clark, and a 1972 International truck owned by defendant, L. H. Bossier, and operated by defendant, James M. Pope, at the intersection of U. S. Highway 165 and Davis Road in Allen Parish, Louisiana. Thereafter, Leo Clark instituted this suit, in which he prayed for damages for loss of earnings; depreciation on his truck; mental anguish; loss of use of his truck and inconvenience resulting therefrom; the deductible amount of his collision insurance policy; repair and storage of his truck.

Defendants filed answers (in which each made general denials of the allegations of plaintiff’s petition) and reconventional demands. In its reconventional demand, Alexandria Construction Company prayed for reimbursement for the use of the vehicle which it loaned to plaintiff Clark. From judgment in favor of plaintiff Clark, in which $13,800.00 was awarded for lost earnings; $500.00 for mental anguish; $1,000.00 for depreciation of the truck; $158.00 for storage of the truck; and $1,428.40 for truck repair, and in which the reconventional demands were dismissed, defendants appeal. We reverse.

Appellants cite the following as errors of the trial court:

(1) The trial court erred in holding that Leo Clark was not contributorily negligent and in rendering judgment dismissing defendants’ reconventional demands;
(2) The trial court erred in not rendering judgment in favor of defendants or, in the alternative, in not allowing an offset in the amount of judgment for the use by Leo Clark of the truck provided by Alexandria Construction Company.

In our opinion, both drivers were negligent. The accident occurred on a heavily travelled highway, U.S. 165. Clark was attempting to turn to his left on a parish road known as the Davis road. The intersecting road was plainly visible along the highway. It was a blacktopped road to the east of the highway and was gravelled on the west side of that highway. Clark intended to turn to his left on the blacktopped portion of the parish road. Although Clark turned on his left turn signal and slowed down his truck and says that he saw the Pope vehicle a substantial distance behind him, the evidence shows that the Pope vehicle entered the passing lane a substantial distance before the accident occurred and that the front part of the Pope vehicle had reached a point fourteen feet ahead of the front of the Clark truck. Clark simply turned his vehicle to the left into the side of the Pope vehicle as the latter was in the act of passing him. The evidence shows clearly thqt Clark was negligent.

Insofar as Pope is concerned, we find that he also was clearly negligent. Not only was the intersection clearly visible to both drivers as they approached it, but there was a yellow no passing line in the southbound lane at the point where Pope was endeavoring to overtake and pass Clark. The yellow no passing line extended a distance of 750 feet north of the intersection, so there is no question but that Pope should have seen it and should not have undertaken to pass a vehicle at that point.

There is some discussion in the briefs as to whether the yellow line had been placed in that location to indicate that there was a depression in the highway, instead of to warn against the intersection. The evidence shows clearly, however, that the yellow no passing line was put at that location to caution drivers against overtaking and passing other vehicles at the intersection. The photographs in the record, as well as the testimony, show that yellow no passing lines were on Highway 165 both north and south of this intersection. On the north side of the intersection, it prohibited southbound motorists from turning to the left. On the other side of the intersection, it prohibited northbound motorists from turning to the left. There would have been no reason for the yellow line to be changed from one side of the highway to the other at that particular intersection if lines, in fact, were intended to warn against a dip in the highway. In any event, the mere fact that a yellow line was there should have been a warning to Pope that he should not pass the vehicle ahead of him at that point.

In the case of Sullivan v. Welch, 328 So.2d 731 (La.App. 3 Cir. 1976), this Court stated the rule of law as regards the left-turning motorist. At Page 733, we said:

“The duties imposed on a left-turning motorist are well established in the jurisprudence of this state. In the recent case of Bamburg v. Nelson, 313 So.2d 872 (La. App. 2nd Cir. 1975), the court stated:
“Although the driver making a left turn who is involved in an accident is not deemed ipso facto negligent, the cases which characterize the maneuver as dangerous and setting forth the duty of the left-turning vehicle are numerous. The duty of the left-turning motorist is twofold, the first being to give a proper signal, and secondly to make proper observation that the turn can be made without endangering an oncoming or overtaking vehicle. See Lewis v. Liberty Mutual Insurance Company, 215 So.2d 138 (La.App. 3rd Cir. 1968). A left turner must not only give an adequate signal of 'his intention but also make adequate observation to his rear to ascertain that the turn can be safely made. Ardoin v. Chachere, 207 So.2d 574 (La.App. 3rd Cir. 1968).”
See also Williams v. Inabnett, 345 So.2d 1294 (La.App. 3 Cir. 1977.).

The trial court properly ruled that defendant, Pope, was negligent and that his negligence was a cause-in-fact of the accident. However, the trial court also ruled that plaintiff, Clark, was not contributorily negligent. With the latter ruling, we disagree. Under the facts of this case, as we appreciate them, plaintiff, Clark, could, and should, have seen defendant’s truck in its passing maneuver in the north-bound lane of traffic. At the point of impact, the Pope truck was approximately fourteen feet ahead of the Clark truck.

“The duty of observation is the same for both the motorist who discovers the overtaking vehicle and the one who does not.” Bamburg v. Nelson, supra, at pg. 875; Sullivan v. Welch, supra, at pg. 734.

As regards the reconventional demand of the plaintiff-in-reconvention, Alexandria Construction Company, for the loss of the use of its truck, the following facts were elicited at trial: Plaintiff-in-reconvention loaned a truck to defendant-in-reconvention, Clark, on July 22; it thereafter, on August 1, requested that Clark return the truck by August 4th or pay a $50.00 per day rental for the use of its truck; the truck was returned by plaintiff on September 2.

Plaintiff-in-reconvention, Alexandria Construction Company, was under no duty to place its vehicle at the disposal of defendant-in-reconvention, Clark. On August 4, Clark was under an obligation to either return the vehicle or pay a rental for its use. As Clark did not return the vehicle to plaintiff-in-reconvention until September 2, he owes Alexandria Construction Company a rental fee of $1,450.00 (29 days at $50.00 per day).

In accordance with the foregoing, the judgment of the trial court is reversed, and judgment is hereby rendered in favor of defendants, dismissing plaintiff’s demands, with prejudice. Judgment is hereby rendered in favor of Alexandria Construction Company in the amount of One Thousand Four Hundred Fifty Dollars ($1,450.00), plus legal interest thereon from date of judicial demand.

All costs of these proceedings are assessed against the plaintiff, Leo Clark.

REVERSED AND RENDERED.


text:
    Claude CAHANIN, Plaintiff-Appellant, v. LAFAYETTE GENERAL HOSPITAL and the Continental Insurance Company, Defendants-Appellees.
    No. 6204.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.

      J. Minos Simon and Gerald J. Block, Lafayette, for plaintiff-appellant.
    Landry, Watkins, Cousin & Bonin, Jacob D. Landry, New Iberia, for defendants-ap-pellees.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   HOOD, Judge.

This is a workmen’s compensation suit instituted by Claude Cahanin against Lafayette General Hospital and its insurer, Continental Insurance Company. The trial court rendered judgment in favor of defendants, and plaintiff appealed. We affirm.

Several questions are presented, the principal one being whether plaintiff sustained a disabling injury during the course and scope of his employment.

Plaintiff alleges that he sustained two separate injuries while working as a laborer in the maintenance department of the Lafayette General Hospital. One of those injuries, described as chronic bronchitis, allegedly occurred on June 30, 1973, when plaintiff inhaled some smoke or fumes while burning trash for the hospital. The other injury, an inguinal hernia, is alleged to have been sustained on July 16, 1973, while Cahanin was doing some heavy lifting in the course of his employment. Plaintiff contends that he has been totally disabled since the last mentioned date.

Cahanin was 63 or 64 years of age when the above accidents allegedly occurred. He testified that on July 16,1973, while he was carrying a heavy box down a flight of stairs for his employer, he felt a pain in his groin, and that he immediately told his co-employee, John Lee, and his supervisor, Harold Webb, that he had injured himself. He thereupon arranged for his daughter-in-law to pick him up at the place of his employment and take him to Dr. Charles Chester Martin for treatment. He saw Dr. Martin that day, and he remained under the treatment of that doctor for approximately two years thereafter. He testified that Dr. Martin told him he had bronchitis and a hernia, and that he has not worked for anyone since July 16, 1973.

Plaintiff also testified that immediately prior to the time he sustained the above injury, he occasionally burned trash in an incinerator for the hospital, although it was not a part of his regular duties to do so, and that he sometimes inhaled smoke and fumes when he opened the door of the incinerator. He stated that he had been coughing and had not been feeling well for several days before he first consulted Dr. Martin, and he contends that he developed the bronchitis from inhaling smoke and fumes while burning trash for the hospital.

Dr. Martin died in 1975, before this case was tried. The trial judge, however, admitted in evidence some notes which had been made by the doctor and some reports which he prepared in 1973 and 1974 relating to his findings and treatment of Cahanin. No issue is raised on this appeal as to the admissibility of those reports. The earliest such document is a note or memorandum, dated August 20,1973, signed by Dr. Martin and addressed to the Assistant Administrator of the hospital where plaintiff worked, advising that plaintiff “has had a bronchitis and should refrain from inhaling smoke for the next 6 weeks until his lungs are clear.” There is no mention of a hernia in that note, and we interpret the message to mean that plaintiff could continue to work, but that he should avoid inhaling smoke.

Plaintiff engaged an attorney, and on April 12, 1974, Dr. Martin submitted a formal report to that attorney, which reads as follows:

“Mr. Claude Cahanin was first seen by me on July 16, 1973, with a history of generalized aches and pains, difficulty with breathing, persistent cough. A physical examination revealed an elevated blood glucose of 120 mgm% and a chronic bronchitis. A history revealed the patient had been working at Lafayette General burning trash and this, he states, made his cough worse. Also a left inguinal hernia was discovered which the patient stated he had no knowledge. No history of work injury was given at this time. On a subsequent visit, he stated, he and another employee at Lafayette General were moving a desk and he felt a pain in his left side, exact date could not be determined. He refused surgery for this hernia.
“He is still being treated for chronic bronchitis and is progressing satisfactorily.
“In summary this patient has the following:
“(1) Latent Diabetes Mellitus
“(2) Left Inguinal Hernia
“(3) Chronic Bronchitis.” (Emphasis added).

Two other reports were submitted by Dr. Martin, one on January 27 and the other on February 6, 1975. In both of those reports the doctor stated that Cahanin’s bronchitis had improved to the extent that he could withstand surgery, and that he was willing at those times to have his hernia repaired.

Dr. Edward J. LeBlanc, Jr. examined plaintiff initially on November 15, 1976. He testified that the only pertinent physical finding he made was a “large scrotal hernia in the right inguinal area,” or an “indirect inguinal hernia.” Arrangements were made for plaintiff to undergo surgery, and Dr. LeBlanc thereupon performed the surgical procedure necessary to repair the hernia on November 18, 1976, that being three years and four months after the accident occurred. The operation was successful. Plaintiff was released from the hospital on November 24, 1976, and he was discharged by his treating physician on January 10, 1977.

Dr. LeBlanc explained that plaintiff probably had “a preformed sac or preformed disposition to a hernia, almost from the time of birth,” and that exertion, exercise or straining precipitated the opening of this sac and filling it with hernia contents. With reference to plaintiffs hernia, he stated:

“ . . . he had an indirect hernia which had been there for some time and, of course, it had gotten to be where it was incapacitating because the contents of the hernia descended into the scrotum.”
******
“Now, on him, he had been having this for a period of years. And sometimes someone comes in and we know exactly what precipitated the hernia; but in his case, there is no way of knowing what precipitated the hernia.”

Dr. LeBlanc testified that Cahanin told him, in giving a history of his condition, that “he simply noted a swelling in the right groin some years before,” and that “that swelling had slowly enlarged, and that now the patient had tenderness associated with that swelling.”

The trial judge, after considering all of the evidence and noting that there were “different versions as to what plaintiff was doing at the time he sustained this alleged hernia,” determined that plaintiff was not entitled to recover. We gather from the trial judge’s reasons for judgment that he concluded that plaintiff had failed to show a causal connection between the accident and the hernia which eventually was repaired in 1976. The trial judge also found no evidence of “causation” of the bronchitis. He thus rendered judgment in favor of defendants. Plaintiff appealed, and it is that appeal which is before us now.

Applicable here is the rule that in a workmen’s compensation case, as in other civil actions, the plaintiff must establish causation by a preponderance of the evidence. The testimony, as a whole, must show that more probably than not the accident caused the disability. Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974).

In order for a claimant to recover workmen’s compensation benefits when the claim is based on an inguinal hernia, he must establish by a preponderance of the evidence that: (1) The hernia resulted from injury by accident arising out of and in the course and scope of the employment; (2) the accident was reported promptly to the employer; and (3) the employee was attended by a licensed physician within 30 days thereafter. LSA-R.S. 23:1221(4)(q)Marmolejo v. Fairmont-Roosevelt Hotel Company, Inc., 301 So.2d 375 (La.App. 4 Cir. 1974).

The factual findings of the trial court are entitled to great weight, particularly when they involve a determination of the credibility of witnesses, and his findings will not be disturbed by the reviewing court unless found to be clearly erroneous.

In the instant suit, some of the testimony or statements are conflicting, and it is difficult to rationalize or accept parts of the evidence presented.

According to Dr. Martin’s notes, for instance, that doctor found that plaintiff had a left inguinal hernia on July 16, 1973, whereas more than three years later Dr. LeBlanc found that he had only a right inguinal hernia. Dr. Martin reported that sometime after the above date plaintiff stated that while he was moving a desk for the hospital he felt a pain in his left side. At the trial plaintiff testified that while he was carrying a box he felt a pain in his right side. He pointed out to the court that the pain was localized two or three inches to the right of the mid-line of the body and about four inches below the belt line.

Dr. Martin also reported that plaintiff had “no knowledge” of the hernia which was found on July 16, 1973, and that he gave no history of a work injury at that time. We believe that plaintiff would have mentioned the pain in his groin, and would have given a history of a work injury, if he, in fact, had sustained a hernia, or had aggravated and made symptomatic a pre-ex-isting hernia, immediately before he went to the doctor. That conclusion is justified here especially, we think, because plaintiff said he rushed to the doctor at that time primarily for treatment of the pain in his groin. Cahanin indicated in his testimony that the pain which he experienced in his side and groin while carrying a box for his employer was severe enough that he was unable to drive his own car and had to have someone else take him to the doctor’s office.

We are inclined to accept Dr. LeBlanc’s testimony that plaintiff’s indirect inguinal hernia developed or became manifest gradually over a relatively long period of time. The evidence does not convince us, and it apparently did not convince the trial judge, that plaintiff suffered a sudden pain in his groin shortly before he consulted Dr. Martin on July 16, 1973, or that he went to the doctor on that date for treatment of a pain in that part of his body. We base that decision largely on the fact that Cahanin did not know that he had a hernia when he saw the doctor and that he did not say anything to Dr. Martin on that visit about having had an accident or experiencing pain while carrying a heavy object in the course of his employment. Our conclusion as to that factual issue is supported to some extent, we think, by the fact that in the note which Dr. Martin wrote to plaintiff’s employer on August 20, 1973, he mentioned only that plaintiff had a bronchitis. He made no mention of a hernia in that note.

As already noted, plaintiff told Dr. Martin sometime after his first visit to that doctor that he was moving a desk for his employer when he sustained the hernia. He apparently gave that same information to his attorney, because plaintiff’s attorney stated in a letter to the insurance adjuster on January 29,1974, that Cahanin was moving a heavy desk when he was injured. Contrary to those earlier statements, plaintiff testified at the trial, and also in a deposition taken before the trial, that he was moving some boxes for his employer that day, that he had carried three boxes down the stairs that morning and was in the process of carrying the fourth box when he experienced pain in his side and groin.

Plaintiff’s co-employee, Lee, testified that plaintiff told him that he had hurt himself while picking up or lifting a box in the course of his employment. The witness did not remember when plaintiff gave him that information, but he believed that Ca-hanin continued to work the rest of the day and told Lee about the alleged accident while working the next day. Lee stated that plaintiff did not mention the nature of the injury or the part of his body which was affected by it.

Plaintiff testified that he immediately reported the accident and injury to his groin to his supervisor, Webb, and that he reported his injury again to Webb later the same day. Webb stated, however, that he had no recollection of discussing such an accident or injury with plaintiff at any time, and that he would have made out a report of an accident if one had been reported to him by plaintiff. Webb conceded that plaintiff told him on July 16 that he was “sick,” but he stated that he was under the impression that Cahanin was talking about his bronchitis. He is certain that plaintiff mentioned nothing about experiencing pain in * his groin or side while lifting or carrying a box.

Although plaintiff contends that he did not return to work for the defendant hospital after July 16, 1973, the payroll records and other evidence establishes that he worked four hours on the above date, that he was on sick leave for nine working days thereafter, and that he returned to work on July 30. He worked five days during the week beginning July 30 and four days during the week beginning August 6. He was on sick leave from August 10 until he formally resigned from his employment on September 4, 1973.

It is obvious from the above that there are some substantial conflicts in the evidence. The trial judge apparently did not accept plaintiff’s version of the facts as given at the trial. After considering all of the evidence, we agree with the trial judge that plaintiff failed to establish that the disabling hernia which was found and repaired by Dr. LeBlanc in 1976 resulted from a work connected accident.

With reference to plaintiff’s contention that he sustained an injury resulting in bronchitis, the evidence does not show that he was ever disabled from work because of that condition, or that his bronchitis was caused by inhaling smoke or fumes from the hospital trash burner.

We conclude that there was no error in the judgment of the trial court which rejected plaintiff’s demands. The judgment of the trial court thus must be affirmed.

For the reasons assigned, the judgment appealed from is affirmed. The cost of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


text:
    FIRST NATIONAL BANK OF ABBEVILLE, Plaintiff, v. PILLETTE ENTERPRISES, INC. and Weill Lumber Company, Inc., Defendant and Third-Party Plaintiff Appellant, v. NATIONAL SURETY CORPORATION, Third-Party Defendant Appellee.
    No. 6205.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.

      Thompson & Sellers by Charles M. Thompson, Jr., Abbeville, Herman C. Clause, Lafayette, for defendant and third-party plaintiff appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Joseph One-bane and Daniel G. Fournerat, Lafayette, Roger C. Edwards, Abbeville, for third-party defendant-appellee.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   CULPEPPER, Judge.

The plaintiff bank sued for the balance of approximately $29,000 due on three certain promissory notes. The notes were executed by defendant, Pillette Enterprises, Inc., payable to the bank for funds loaned to Pillette to pay for labor and materials used by Pillette to perform several subcontracts on a housing project. In order to secure these notes, Pillette assigned to the bank the proceeds of its subcontracts. The defendant, Weill Lumber Company, Inc., is the general contractor on the housing project. Weill also executed the acts of assignment, agreeing to deliver to the bank all sums due Pillette under the subcontracts. The bank alleges it advanced over $29,000 on the notes, which sums were used by Pillette to pay for labor and materials used in performing the subcontracts. The bank alleges further that neither Pillette nor Weill has paid to the bank any of these sums which are due under the terms of the notes and the assignments.

Weill answered the bank’s petition, denying the allegations thereof. Additionally, Weill filed third party demands against various parties, including National Surety Corporation, the surety on the performance bond furnished by Pillette to Weill. Weill alleges in its third party demand against National Surety that Pillette defaulted on the subcontracts, and that National Surety is liable to Weill on the performance bond. National Surety Corporation filed an exception of no cause of action to Weill’s third party demand. From a judgment of the district court sustaining this exception, Weill Lumber Company appealed.

The sole issue on appeal is whether Weill’s third party demand against National Surety Corporation states a cause of action.

In support of its third party demand, Weill Lumber Company quotes in part from LSA-C.C.P. Article 1111: “The defendant in a principal action by petition may bring in any person, including a co-defendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.”

Weill and the bank cite Bourree v. A. K. Roy, Inc., 232 La. 149, 94 So.2d 13 (1957) as a leading case construing the above statute. In Bourree, the principal demand was for the rescission of a sale of immovable property. Plaintiff had bought the property from defendant, but the property had previously been appropriated by the Board of Commissioners of the Pontchartrain Levee District. The defendant-vendor filed a third party demand against the levee board, alleging that the board was liable to him for the value of the land appropriated. The court sustained the levee board’s exception of no cause of action on the basis that the third party demand “did not arise out of or have causal connection with the main demand.”

In the present case, the district judge, relying on Bourree, found the third party demand, which alleges that National Surety Corporation is liable to Weill for damages arising out of Pillette’s alleged default in the performance of its subcontracts, does not arise out of nor have causal connection with the principal demand by the bank against Pillette and Weill for sums due under the notes and the assignments.

On appeal, Weill contends the third party demand does arise out of and have causal connection with the principal demand. Weill argues in its brief: “The money which would be due the bank would arise out of the work done on the construction project. The question involved is whether or not Weill Lumber Company owes any additional funds to Pillette Enterprises and thus to the bank and further the extent of Pillette Enterprises’ liability to Weill Lumber Company for its default on the subcontract work. As the National Surety Corporation wrote the performance bond for Pil-lette Enterprises, any liability for Pillette Enterprises in this respect would be the obligation of its surety. Therefore, it can be seen that National Surety Corporation is intimately involved in the principal demand in this action. If any liability is assessed against Pillette Enterprises for its default, then National Surety Corporation may well find itself in the position of being liable for the damages incurred by Weill Lumber Company as a result of this default. There is also the question as to whether any of these funds, if any should be recovered by Weill Lumber Company, would then be due to First National Bank under the allegations of the principal lawsuit.”

In answer to these arguments, National Surety Corporation argues that Weill is apparently attempting to litigate in this lawsuit not only Weill’s liability to the bank under the notes and assignments for the work already completed by Pillette, but also National Surety’s liability for damages for work not completed by Pillette. Of course, Weill is not liable to the bank under the notes and assignments, for any work which was not completed by Pillette. Therefore, National Surety argues, any damages sustained by Weill resulting from Pillette’s default on its subcontract, is not a part of the principal demand. As to this portion of the argument, we think National Surety’s contention is clearly correct.

As to Weill Lumber Company’s contention that “if any liability is assessed against Pillette Enterprises for its default, then National Surety Corporation may well find itself in the position of being liable for the damages incurred by Weill Lumber Company as a result of this default.”, National Surety points out this statement overlooks the fact that the bank’s principal demand against Pillette and Weill is not for damages caused by Pillette’s default on its subcontract with Weill. The bank sued Pillette and Weill only on the promissory notes and assignments of proceeds of the subcontracts. Therefore,- the issue of damages suffered by Weill from Pillette’s default on the subcontracts is not an issue in the principal demand and has no .causal connection therewith.

In its brief, National Surety correctly summarizes this appeal:

“National Surety Corporation has absolutely no interest in the outcome of the principal demand of this lawsuit because whether Weill Lumber Company is successful or unsuccessful in defending the principal demand, National Surety cannot be held in judgment. If the Bank proves the allegations of its petition, it will have established that Pillette completed its contract on the project to the extent sued upon in the principal demand. Under the circumstances, National Surety can have no liability to Weill because National Surety’s obligation under the bond arose only in the event that Pillette did not perform the contract. Therefore, if the Bank proves that the work was completed to the extent alleged, then certainly National Surety cannot be held for contracts that have been completed. If the Bank fails to prove the allegations of its petition, i. e., if Weill is successful in its defense (even by a showing that Pillette defaulted on its contract), then National Surety cannot be held in judgment to Weill because third party plaintiff (Weill) can only recover against a third party defendant (National Surety) if the principal plaintiff (the Bank) is successful in obtaining a judgment against the third party plaintiff (Weill).”

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.