author: LEMMON, Judge. LEMMON, Judge

text:
    James G. MAGUIRE v. Joyce R. MASINO.
    No. 6978.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Concurring Opinion On Denial of Rehearing Nov. 11, 1975.

      Pitard, Pitard & Porobil, Gregory M. Porobil and James G. Maguire, New Orleans, for plaintiff-appellee. •
    Hammett, Leake, Hammett, Hayne & Hulse, New Orleans, James H. Minge, for third-party defendant-appellee, A & M Pest Control Service, Inc.
    Dillon & Williams, William S. Marshall, Jr., New Orleans, for defendant, third party plaintiff-appellant, Joyce R. Masino.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   LEMMON, Judge.

This is an action in quanti minoris filed by James Maguire, alleging that a residential building which he purchased from Miss Joyce Masino was infested with termites at the time of the sale and demanding a reduction in the purchase price. By third party petition Miss Masino sought indemnification from A & M Pest Control Service, Inc., who had contracted with Miss Masino to furnish termite control service.

Miss Masino has appealed from a judgment which ordered a reduction in the purchase price, while granting only partial indemnification.

In 1971, after she had lived in the house for twenty years, Miss Masino noticed termites in the laundry room and called A & M, who inspected the premises and informed her that the termites were only swarmers which are not the type that cause damage. Nevertheless, Miss Masino executed a two-year termite contract with A & M on February 19, 1971, and A & M conducted its initial treatment and inspection shortly thereafter.

In February, 1972, about a month after A & M had conducted its annual inspection and retreatment under the contract, Miss Masino again discovered termites in the laundry room. A & M retreated the house and informed her these were also nondestructive swarmers.

On February 19, 1973 the contract between Miss Masino and A & M was renewed for another year, and shortly thereafter she accepted Maguire’s offer to purchase the property which was “(predicated on a satisfactory termite inspection to be furnished by seller.” A & M performed its annual inspection and treatment on March 7, 1973 and issued a certificate that there was no visible evidence of active termites. The act of sale was passed on April 25, 1973.

As to events thereafter, Maguire testified : He moved into the house in May and immediately painted all the walls and woodwork, but saw no evidence of termite infestation or damage. In the middle of June he noticed a few “insects” on some nights in an upstairs bedroom but realized no cause for concern. In the middle of July (less than three months after the sale) he noticed a tremendous swarm of termites throughout the house and called Miss Masino, who told him of her previous experience with termites in the laundry room. He did not contact A & M or any other termite contractor at that time, because he could not then financially afford to purchase a contract, but apparently applied a chemical spray himself. In February, 1974, while renovating the upstairs bedroom, he noticed rippling in the wall paneling and upon probing discovered live termites. He again applied a chemical spray and called Miss Masino. One of them notified A & M, who inspected the premises but denied responsibility because the contract with Miss Masino had expired. He then filed this suit.

On June 1, 1974 Vernon Sanchez, a termite inspector with 20 years experience for another company, examined the house and found live termites and considerable damage, Maguire then entered into a termite contract with Sanchez’s company.

On the question as to whether termite infestation existed at the time of the sale, Sanchez opined that if termites swarmed in large numbers within one to three months of the pertinent date, infestation had probably occurred as of that date. Distinguishing between nondestructive swarmers and destructive workers, Sanchez also stated that workers are normally present (although rarely visible) when swarmers are observed. Moreover, Sanchez identified the termites as Formosan, an aggressive variety which causes damage that becomes visible in a relatively short time, perhaps three to five years.

A & M’s manager testified that swarm-ers observed outside a building could come from anywhere in the area, but when swarmers are observed inside, an effort should be made to determine the origin of infestation. He stated that when swarmers are detected, workers are possibly (but not necessarily) also present.

The trial court, by ruling in plaintiff’s favor, apparently accepted his statement that he found termites swarming in large numbers within three months of the sale. Once this fact is proved, the expert testimony (that swarming within three months of the sale indicates the probability of infestation at the time of the sale, and that damage generally becomes visible within three to five years after infestation) is sufficient to establish the probability that the infestation existed at the time of the sale. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance when the proof, taken as a whole, shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971).

Since plaintiff proved a defect sufficient to diminish the value of the thing sold (C.C. art. 2541), and since that defect was not discoverable by simple inspection at the time of the sale (C.C. art. 2521), plaintiff is entitled to a reduction of the purchase price and to judgment against Miss Masino. Fraser v. Ameling, La., 277 So.2d 633 (1973).

The measure of recovery in an action in quanti minoris involving a building is the amount necessary to convert the unsound structure to a sound one. Fraser v. Ameling, supra. All counsel stipulated that the cost of repairing the damage to the house caused by termite infestation was $385.00. Plaintiff additionally paid Sanchez’s exterminating company $340.00, which included the cost of eradicating the existing termites as well as of periodic treatment with a guarantee against rein-festation for a two-year period.

Eradication of the live termites was necessary to prevent continuing damage from the original latent defect, the termite infestation, and to rid the structure of this defect. Although Sanchez could not separate the cost of eradication from the cost of any other benefits under the contract, we note that the contract could thereafter be renewed at a cost of only $34.00 per year. We accordingly award plaintiff a total of $725.00, which will reimburse him for both the cost of repairs and the cost of eradication. This sum substantially represents the difference between the sale price and the price a reasonable buyer and seller would have agreed upon had they known of the defect.

Inasmuch as we have concluded the defect existed at the time of the sale, when Miss Masino’s contract with A & M was still in effect, we further conclude that Miss Masino is entitled to indemnification from A & M. Termites were found in large numbers at least once in each of the years 1971, 1972, 1973 and 1974. Except for the first swarming, all of these findings occurred during the time A & M undertook to protect the property and to prevent termite damage. Furthermore, Miss Masino testified that she maintained the area free from trash, leaks, faulty plumbing and other factors contributing to infestation and otherwise complied with her obligations under the contract. These considerations and the totality of the evidence indicate the probability that A & M failed to perform properly its obligations under the contract. Accordingly, Miss Masino is entitled to recover from A & M the loss that she incurred because of the termite damage caused by A & M’s failure.

For these reasons, the judgment of the ■ trial on the principal demand is reduced to the sum of $725.00, and the judgment on the third party demand is increased to the sum of $725.00. As amended, the judgment is affirmed.

Amended, and affirmed.

OPINION IN DENIAL OF APPLICATION FOR REHEARING

LEMMON, Judge

(concurring).

A. & M’s application for rehearing contends that its contract lapsed prior to the discovery of any visible termite damage to the premises and that since any liability to Miss Masino is solely under the contract, our judgment on the third party demand was erroneous, especially in awarding indemnification for the cost of employing another exterminating company to provide future inspection and treatment services.

The treatment necessary to eradicate the termites did also have a long-term effect of preventing reinfestation for some period of time. Nevertheless, the fact that the owner received a future benefit from the treatment is relatively insignificant, since the principal purpose of this particular treatment was to eradicate the existing active termite infestation, the cause of the damage.

A & M 'also contends the contract terms limited its responsibility to new damage discovered during the term of its contract. The^contract provided:

“The Termite Contractor shall be responsible only for new damage to visible portions of the foundations, sills, joists, plates and sub-floor where an active termite infestation is discovered 6 months or more after completion of initial treatment.”

The evidence showed the damage to be “new”, that is, damage which occurred after the inception of the contract. Furthermore, the active termite infestation was discovered more than six months after completion of the initial treatment. Therefore, although plaintiff did not discover the rippling in the wall paneling until after Miss Masino had sold the property, A & M was nevertheless liable to Miss Masino under the contract for such damage.

Finally, A & M contends damage to the garage was clearly excluded. The contract did exclude “fences, garage and other outbuildings”, but the evidence suggests this garage was part of the main structure. Since A & M failed to prove the garage was a detached outbuilding, and since the burden is on the party relying on a contractual exclusion to prove facts necessary to establish the exclusion, A & M failed to establish the applicability of this exclusion.

      . R..S. 40:1269 requires that a pest control operator, contracting to control or eradicate termites, guarantee for two years the performance of the terms of the contract.

      . A & M did not appeal from the judgment, and its liability to the extent of that judgment ($300.00) is not at issue on appeal.

      .We reject A & M’s partial defense that its contract excluded the garage. The evidence is not clear as to whether the garage is part of the house or a detached accessory building, which could influence determination of the partial defense. Furthermore, the damage to the garage comprised only an inconsequential amount of the total repair estimate.

      . The annual inspection, required by the contract, also conferred a benefit which is deemed relatively insignificant to the principal purpose of the treatment.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Michel T. BLOUIN v. LOYOLA UNIVERSITY et al.
    No. 7188.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.

      Steven R. Plotkin and Theresa A. Tam-buro, New Orleans, for plaintiff-appellee.
    Denechaud & Denechaud, Thos. A. Ray-er, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff brought this suit for damages against Loyola University and individual members of its Board of Directors on allegations that he had been employed as a teacher in 1966 and on May 19, 1969, received a letter of termination. The petition further alleges as follows:

“13.
The reasons given by the Board of Directors for petitioner’s original dismissal was that he was a homosexual, made anti-Catholic remarks, made anti-Jesuit remarks, he frequented bars, and that he dealt in or used illegal drugs.
“14.
All of these allegations by the members of the Board of Directors, herein named defendants, in their individual capacity, amount to slander of petitioner’s reputation and severely damaged petitioner’s standing in the academic community.”

He also alleges that he was a tenured teacher and that his discharge was viola-tive of his constitutional rights. In response defendants filed exceptions of res judicata and prescription. After the case was submitted on brief and argument the trial court overruled the exception of res judicata, maintained the exception of prescription insofar as the petition alleged an action based on libel and slander, but allowed plaintiff to amend his petition so as to state a cause of action for breach of contract. From that judgment, insofar as it maintained the exception of prescription, plaintiff has appealed.

The petition was not filed until January, 1975, so that on its face plaintiff’s cause of action based upon defamation, libel or slander had prescribed by operation of LSA-C.C. Art. 3536. Since no evidence was offered as authorized by C. C.P. Art. 931 to show why the claim did not prescribe, there is no basis for our disturbing the judgment of the trial court maintaining the exception of prescription. See Tassin v. Allstate Insurance Company, La.App., 310 So.2d 680; Calzavara v. Biehl & Company, 220 So.2d 552 (La.App. 4th Cir. 1969).

On appeal plaintiff has invoked the doctrine of contra non valentem agere nul-la currit prescriptio (prescription does not run against him who could not bring the suit). In support of his argument he relies on various documents which he has attached to the brief filed in this Court. Such exhibits are not evidence and form no part of the record on appeal. They cannot provide a basis for plaintiff to invoke the doctrine of contra non valentem so as to avoid the prescription of Art. 3536.

The doctrine of contra non valen-tem is an equitable exception to the law of prescription. The following guide to its application is found in Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285, 287:

“The rule that prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, applies only when such ignorance is not wilful and does not result from negligence, and the doctrine has been limited to cases where the debtor has concealed the fact of the obligation or has committed other acts which tend to hinder, impede or prevent the creditor from ascertaining knowledge of the existence of the debt.”

Plaintiff neither pleaded any facts nor offered any evidence tending to support the application of the doctrine in the trial court.

Much of plaintiff’s argument in brief is devoted to the proposition that he was led to believe by the defendants that his grievances would be redressed on the administrative level through faculty committees and the like. He asserts that his belief was prompted by public statements made by various officers of the University and members of its Board of Directors. Aside from the fact that there is no evidence to support such a theory, even if there were, this would perhaps relate to plaintiff’s suit based upon alleged breach of contract but could not be connected with his case based on the alleged defamation, libel or slander.

Accordingly, the judgment maintaining the exception of prescription with respect to plaintiff’s cause of action for defamation, libel or slander is affirmed at plaintiff’s cost.

Affirmed.


author: BEER, Judge. REDMANN, Judge

text:
    Mrs. Eleonora B. JEFFERSON v. CITY OF NEW ORLEANS.
    No. 7178.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Maurice L. Burk, New Orleans, for plaintiff-appellant.
    Philip S. Brooks, City Atty., Robert K. Tracy, Asst. City Atty., for defendant-ap-pellee.
    Before REDMANN, STOULIG and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, a lady of seventy years, sustained moderate injury to her right knee and low back when she allegedly tripped due to a defective sidewalk. From a judgment dismissing her claim, she appeals. We must affirm on the basis of the trial court’s factual determinations which are not manifestly in error.

On the evening of February 6, 1973 about 5:30 p. m. Mrs. Jefferson, walking in the 2600 block of Jackson Avenue, tripped over a protrusion in the sidewalk that apparently had existed there for some time. She had not previously traversed this area as a pedestrian. Upon leaving the lighted intersection of Magnolia Street and Jackson Avenue, she acknowledges that she did not look down to observe the unlit strip of sidewalk. Instead, she looked ahead — possibly to observe the bus on Claiborne Avenue that she hoped to “catch.”

The trial court found that the City had constructive notice of the defect, Wade v. City of Baton Rouge, 261 So.2d 315 (La.App. 1st Cir., 1972) but also concluded that Mrs. Jefferson “could not just go along blindly looking with her head into a cloud” and thus concluded that she was contribu-torily negligent in failing to observe “that kind of defect that if you were looking you would have had to seen the particular defect at the time.”

In Kidder v. City of Opelousas, 185 So.2d 66 (La.App. 3rd Cir., 1966) the court stated:

“Although a pedestrian is not required to look for hidden dangers, he nevertheless is bound to walk with his eyes open .and to observe his course to see what is open and apparent. He will be held to have seen those defects in the sidewalk which are obvious and can be noticed by a reasonable and prudent person, and he cannot recover if injury is caused by his failure to see a danger which would have been apparent to a reasonably prudent and observant person.”

The obviousness of this particular defect in the sidewalk was substantiated by the testimony of a resident of the area, Gwen Thibodeaux, who was called as a witness by the plaintiff. On cross-examination she acknowledged that even from her porch (across the street from the sidewalk) she was able to view the protrusion. The trial court determined that Mrs. Jefferson’s failure to notice must be attributed to her failure to exercise the care required. Her responsibility to exercise due care could not be lessened by the setting of the sun. She was still obliged to be mindful of the “well recognized fact that throughout every city there may exist irregularities in sidewalks . . . . ” Green v. Acosta, 173 So.2d 291 (La.App. 1st Cir., 1965).

Finding no manifest error on the part of the trial court, the judgment is affirmed at appellant’s cost.

Affirmed.

REDMANN, J., dissents.

REDMANN, Judge

(dissenting).

Perhaps the law should be that cities shall never be liable for injuries to persons of the age of reason from falls on sidewalk defects.

However, as long as the law is that cities are liable, we should not deny this plaintiff recovery on a theory of contributory negligence. The testimony is unanimous that it was night at the time of the fall.

The testimony of Gwen Thibodeaux that she saw the defect from across the street at the time, at night, is not credible. Its context shows that she saw the fall, and knew (from haying fallen there herself!) that the sidewalk there was defective.

Plaintiff’s testimony of “not looking down” is the truthful depiction of the ordinary walker’s reliance on straight-ahead wide-angle vision — assisted by focusing on the ground from time to time as conditions might warrant.

Plaintiff’s damages attributable to her fall are minor, and do not include her arthritic condition and its treatment. But she should have judgment for her other medical expense and $250 general damages.

      . The following exchange took place between defendant’s counsel and plaintiff’s witness, Gwen Thibodeaux:
      “Q Now, Mrs. Thibodeaux, you can see what the lady fell over from where you are sitting, right?
      A Xes.
      Q Could you see what she fell over?
      A Yes, I could see, because I knew it was there because I had fell over it myself. And I know exactly what was there.
      Q So you could see what she fell over?
      A Yes.
      Q From across the street?
      A From across the street.
      MR. TRACY:
      No further questions.”


author: BOLIN, Judge.

text:
    ARKANSAS LOUISIANA GAS COMPANY, Plaintiff-Appellee, v. CITY OF MINDEN et al., Defendants-Appellants.
    No. 12,788.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    Rehearing Denied, En Banc, Feb. 9, 1976.

      Robert C. White, Minden, for defendants-appellants.
    Blanchard, Walker, O’Quin & Roberts by W. Michael Adams, Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and GLADNEY, JJ.

       Marvin, J., recused.

   BOLIN, Judge.

This appeal presents the question of whether a municipality must compensate a utility company for the costs the company •incurs in lowering its pipeline which traverses a natural drain to a depth where the pipeline will not interfere with the municipality’s drainage improvement project. The lower court held that in forcing the utility company to lower its pipeline, the municipality exercised its power of eminent domain and therefore must compensate the utility company for the cost of lowering the pipeline. For the reasons hereafter assigned, we set the judgment aside and remand the case to the lower court for further proceedings.

Plaintiff, Arkansas Louisiana Gas Company (Arkla), petitioned the district court to enjoin the defendants, City of Minden, Louisiana Department of Public Works, and C-P Construction Company, Inc., from proceeding with a drainage improvement project involved in deepening Mile Creek, a nonnavigable natural drain located within the corporate limits of the City of Min-den. Arkla alleged it was the owner of four natural gas pipelines which cross Mile Creek at four distinct places and that it was the grantee of certain rights-of-way to lay and maintain these pipelines. An un-certified copy of a 1929 deed granting a right-of-way for one of the pipelines was attached to the petition. Arkla also alleged the drainage project would require the lowering of its pipelines at a cost of $16,814.91 and that the city had refused to compensate Arkla for this cost since the city believed it did not have to expropriate plaintiff’s property. Arkla also alleged the city’s drainage project interfered with plaintiff’s property rights and plaintiff would suffer irreparable injury if the city were allowed to continue work. Arkla prayed that defendants be enjoined from continuing the drainage project and that Arkla’s right to just compensation for the taking be adjudicated by the court.

The temporary restraining order issued as prayed for. At the hearing on the rule for a preliminary injunction, the parties stipulated to the factual allegations of plaintiff’s petition and agreed that the cost of lowering the pipeline was $16,814.91.

On the basis of the stipulation, the trial court rendered judgment in favor of Ark-la, enjoining defendants from proceeding with the construction until the city expropriated plaintiff’s property and compensated Arkla for the taking.

The defendants applied to this court for writs which were denied on the ground defendants had an adequate remedy by appeal.

Under protest pending the outcome of this appeal, the city paid Arkla the sum of $16,814.91. In oral argument counsel for the parties acknowledged the pipelines had been lowered and the drainage project completed. This fact renders the question of the injunction moot.

The only issue remaining in the suit is Arkla’s right to compensation for the alleged taking of its property. While this issue poses an interesting question of law involving the city’s rights in a natural drain under its police power, the Revised Statutes, and the Civil Code, we cannot decide the appeal on the posture of the record and the paucity of facts presented.

For example, the trial court evidently gave written reasons for its judgment since the parties referred to them in brief, but the written reasons are not in the record before the court.

Further, the record is devoid of any evidence concerning the nature and extent of the municipality’s drainage project. There is little evidence concerning Arkla’s pipelines — whether they are buried or exposed; if buried, the depth they are buried below the natural drain; the nature of Arkla’s servitudes, i. e., are they servitudes by title and, if so, the contents of the deed granting the particular servitude.

This court will not decide cases in a factual vacuum. A sufficient factual background must exist before the court can apply the law and render a decision affecting the rights and liabilities of the parties.

We do find that the city has a right to maintain the efficiency of natural drain but we withhold any additional comment on the nature and extent of such right until the suit is placed in a posture proper for decision.

It is therefore ordered that the judgment appealed from be set aside and the case is remanded to the lower court for further proceedings consistent with the views herein expressed; after which the lower court shall render a final judgment in accordance with law. All costs to await the final determination of the cause.


author: PRICE, Judge. MARVIN, Judge

text:
    STATE of Louisiana in the Interest of Rowan WILLIAMS.
    No. 12690.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    Rehearing Denied, En Banc, Feb. 9, 1976.

      Watson & Watson by Philip B. Watson, Jr., St. Joseph, for appellant.
    Thompson L. Clarke, St. Joseph, for ap-pellee.
    Before PRICE, HALL, BOLIN, MARVIN and GLADNEY, JJ.

       Marvin, J., dissented; Smith, J., recused.

   PRICE, Judge.

This appeal was originally argued and submitted to a panel of three judges, a majority of whom decided the judgment appealed from should be modified or reversed. Pursuant to Louisiana Constitution Article V, Section 8(B) (1974), the case was reargued before a panel of five judges.

This is an appeal from the decree of the Sixth Judicial District Court acting in its capacity as Juvenile Court for Tensas Parish, declaring Rowan Williams, age 15, a delinquent child under the provisions of L. S.A.-R.S. 13:1570, and ordering his commitment to the Department of Corrections for an indefinite time. The petition initiating this proceeding, filed on January 30, 1975, alleges Williams is subject to the provisions of the statute defining a delinquent child in that he “did commit one act of burglary (Article 62, Criminal Code, State of Louisiana) in that during the night of Monday, November 25, 1974, he and another did illegally enter Testa’s Exxon Service Station and did take approximately $168 in cash and silver ($53 in one dollar bills, $35 in five dollar bills, and $80 in silver). He also took the entire cash register.”

This court is granted appellate jurisdiction of all matters appealed from the juvenile courts except criminal prosecutions of adults by Article 5, Section 10 of the Louisiana Constitution of 1974. This constitutional authority extends the scope of review to both the law and the facts.

Therefore, it is our constitutional duty to review the evidence presented by the State to determine if the trial court’s finding was based on sufficient evidence to show “beyond a reasonable doubt” that the juvenile committed the act of burglary for which he was adjudged a delinquent. This standard of proof is required by the decision of the United States Supreme Court in the case of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

In its attempt to prove the participation of Williams in the burglary, the State relies on the testimony of an alleged accomplice, Joseph McTear, Jr., another juvenile who had previously confessed to the burglary and who had been committed to the Louisiana Training Institute. At the time of his testimony, McTear was also under a pending charge of attempted rape.

The weight to be accorded the testimony of an accomplice is stated in State v. Lewis, 236 La. 473, 108 So.2d 93 (1959) as follows:

“Although the testimony of an accomplice, even though uncorroborated, is competent evidence, it is well settled that such evidence is subject to suspicion and should be received and acted upon with extreme or at least grave caution. State v. Feroci, 167 La. 78, 118 So. 699; State v. Matassa, 222 La. 363, 62 So.2d 609.”

The testimony of McTear reflects that the idea to commit the burglary was his alone, and that he allegedly approached Williams to accompany him only a few minutes prior to the commission of the act. He admits they were not friends and had not discussed this matter previously at school. It was further established, the two boys had once had an altercation during and after football practice the preceding fall season.

It appears that McTear did not implicate Williams during his initial interrogation nor at the time of his adjudication as a delinquent. As we understand the record, this accusation against Williams occurred at about the time McTear was subsequently charged with attempted rape.

The only other evidence of a substantive nature presented by the State was the testimony of the owner of the station, Louis Testa, who described the method of entry and the amount of money believed to be in the cash register.

The father, grandfather and grandmother of the juvenile testified he was at home at all times on the night of the occurrence of the alleged burglary. Testimony of two of Williams’ teachers was offered to show his good school record and general good character.

We conclude that the testimony of McTear when judged in the light of his record and all other surrounding circumstances shown by the record is not sufficient without other corroborating evidence to constitute proof “beyond a reasonable doubt” of the participation of Williams in the burglary and that the trial court erred in its adjudication based on the evidence before it.

For these reasons, the adjudication of the delinquency of Rowan Williams is annulled and vacated, and the petition of the State in the interest of the juvenile is dismissed.

Annulled and vacated.

MARVIN, J., dissents and assigns written reasons.

GLADNEY, J., dissents for the reasons assigned by MARVIN, J.

MARVIN, Judge

(dissenting).

I respectfully dissent. I agree that under the law, a juvenile is to be afforded essentially the same rights as an adult and that our scope of review extends to the law and the facts. The standard by which a juvenile judge determines in effect the delinquency of a minor charged with a crime, is the standard of reasonable doubt. The standard by which we determine the correctness of the juvenile judge’s determination is manifest error.

Burglary is the unauthorized entry of a structure (here the service station building) with the intent to commit a felony or-any theft. R.S. 14:62. The State was required to prove each element: (1) the unauthorized entry and (2) the intent to commit a felony or any theft. The service station owner testified and without question proved the unauthorized entry and a theft of his cash register and its contents, which was some amount of money. In a theft case (R.S. 14:67) it would be necessary for the State to prove the amount of money or value of the things stolen and beyond a reasonable doubt. This is not necessary in a burglary charge.

The accomplice testified that Williams participated in the burglary, entered the building, assisted in removing and carrying the cash register and received some of the money from the cash register. Williams himself testified that he was away from his home for more than an hour on the night of the burglary. On cross-examination he stated he did not start to go home until “around 8:30 p. m.” (the burglary happened shortly after 8:00 p. m.) and that he played cards before that time with several other young men whom he could not name. Before the card game he had been to a place called “Woods’ Place.” Williams named four individuals whom he had seen there. None of these parties from the card game or from Woods’ Place testified. The defense was alibi, but testified to by grandparents and father. They testified generally as the majority states that Williams was “at home at all times” on the night of the burglary.

The juvenile judge was faced with a credibility issue. She observed the witnesses and their demeanor while testifying. She heard the vocal inflections and hesitancy vel non of witnesses in answering questions. The juvenile judge said:

“I believe the testimony of [the accomplice]. Mr. Williams stated that he didn’t make any threats [to witnesses] but he glared at some of these witnesses all during the trial and the court does not appreciate that . . . Your last witness [speaking to defense counsel] . . . looked like he was frightened to death when he was testifying in this courtroom, and that should not be. I don’t like for people to be afraid to tell the truth in the courtroom ... I can’t see that [the accomplice] had one thing to gain by accusing this young man. He was already convicted There has been no deal, and I believe he was telling the truth when he said they went together.”

Sitting in review of a decision from a juvenile court (before the time appellate review was transferred to the Courts of Appeal but when law and fact was reviewable, as now) and where the defense was alibi, the Supreme Court in State v. LeBlanc, 213 La. 404, 34 So.2d 905 (1948) said:

“ . . . it is necessary for us to consider the facts in the instant case, always bearing in mind the general principle of law that the accused is presumed to be innocent until his guilt has been established by competent evidence beyond a reasonable doubt.
“In determining whether the guilt of a defendant in any case which is appeala-ble to us from the juvenile court has been established, we have only the record as made up in the lower court and are deprived of the benefit of seeing the witnesses and observing their conduct and demeanor while testifying either for the State or for the defense, and of observing the manner in which they give their testimony. The trial judge sees, hears, and observes all this, and therefore is in a better position to determine the credibility of the witnesses and the weight to be given their testimony — all of which is denied us on appeal.
“For these reasons, when the oral testimony is conflicting, we must give weight to the trial judge’s findings on questions of fact and to his determination of the credibility of the witnesses and the weight to be given their testimony.
“In the instant case, the State relies on certain witnesses for the identification of the accused as the perpetrator of the offense, and the defense is that these witnesses are mistaken in their identification of the accused, and, further, that he has an alibi. These being the issues, it is necessary that we consider the testimony of all witnesses, with the above principles of law in mind.” 34 So.2d 907.

In LeBlanc, the Supreme Court affirmed the juvenile judge.

In my opinion, this court should follow this standard and affirm the juvenile judge.

GLADNEY, J., dissents for the reasons assigned by MARVIN, J.


author: GULOTTA, Judge.

text:
    SALSUL COMPANY v. Herman S. KOHLMEYER et al.
    No. 7155.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearing Denied Feb. 10, 1976.
    Writ Refused April 20, 1976.

      Breazeale, Sachse & Wilson, Victor A. Sachse, Frank P. Simoneaux, Baton Rouge, and Flanders & Flanders, Dudley D. Flanders, New Orleans, for plaintiff-appellant.
    Stone, Pigman, Walther, Wittman & Hutchinson, Campbell C. Hutchinson, III, New Orleans, for the “Odence Group”, Charles L. Odence, Robert H. Kremer, Thomas L. Duffy, Charles L. Friedlaender, Thomas P. Cahillane, Jason M. Elsas, Elie S. Shashoua, Thomas S. Snedeker, Larrie A. Weil, Robert R. Rust and Ronald E. Erickson, defendants-appellees.
    Deutsch, Kerrigan & Stiles, Robert G. Stassi, New Orleans, for Alden H. Vose, Jr. and the Estate of Charles B. Vose, through Alden H. Vose, Jr. and Marco F. Savorese, defendants-appellees.
    Reynolds, Nelson & Theriot, John C. Reynolds, New York City, for Howard Fisher, E. Herman Heiman and William Perry Brown, Sr., defendants-appellees.
    Monroe & Lemann, Walter J. Suthon, III, New Orleans, for Morris W. Newman and Robert J. Newman, defendants-appellees.
    McCloskey, Dennery & Page, John M. Page, New Orleans, for Eugene L. Mauro, defendant-appellee.
    Charles E. Richards, Jr., New Orleans, for Cecil G. Murdock, Jr. and Dennis C. Campo, defendants-appellees.
    Jesse S. Guillot, New Orleans, curator for William Perry Brown, defendant-ap-pellee.
    Bronfin, Heller, Feldman & Steinberg, Martin L. C. Feldman, New Orleans, for The “Kohlmeyer Group”, Sam Cahn, Robert R. Wolf, Edgar L. Braud, Walter D. Kingston, Jr., Herman S. Kohlmeyer, Sr., Herman S. Kohlmeyer, Jr., Kohlmeyer Company, Albert Meric and Leon E. Newman, defendants-appellees.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   GULOTTA, Judge.

This is a suit against the general partners of Kohlmeyer & Co. by an assignee of an alleged partner in commendam of Kohl-meyer. The partnership is in liquidation. Plaintiff alleges that the general partners had contracted in the partnership agreement to satisfy the creditors of the partnership from their own personal and partnership assets before any of the securities placed by the partners in commendam could be sold. According to Salsul, the general partners violated the agreement when they sold the in commendam partner’s securities to satisfy partnership debts before satisfying those debts from personal assets of the general partners. A further allegation by plaintiff is that the general partners became indebted to the partnership in large amounts, thereby contributing to the failure of the venture. Plaintiff sues for the value of securities contributed by the in commendam partner and sold by the general partners.

Several exceptions were filed which may be grouped into- five general categories: 1) that the partnership is an indispensable party defendant; 2) that a suit by one partner against another is premature when the partnership is in liquidation; 3) that the petition does not state a cause of action because the partnership agreement does not require that the partnership debts be paid first from the personal assets of the general partners before the securities placed by the in commendam partners could be sold; 4) that nonresident partners are not individually subject to the jurisdiction of the Louisiana court under the long arm statute; 5) that Salsul is not a proper party plaintiff and has no right of action since the partnership agreement is not with Salsul, the assignee of an in com-mendam partner, but with the assignor.

In answer to the exception of prematurity, plaintiff contends that in relation to Kohlmeyer, Salsul occupies the position of a creditor and not an in commendam partner. In support of their position, plaintiff cites the recent decision of the United States District Court, Paul Karp v. Herman S. Kohlmeyer, Sr., et al., Civil Action No. 74-2324 (E.D.La., September 15, 1975), in which the court concluded that the relationship of Karp to the partnership was that of a creditor-debtor and that the pending dissolution of the partnership did not constitute a bar to a suit by Karp (a creditor) against the individual partners, provided the partnership was joined as a party defendant. Plaintiff reasons that based on the United States District Court decision it is a creditor and the exception of prematurity, based on the pending liquidation, is not a bar to its claim. It is plaintiff’s further position that the trial judge erred in maintaining the exceptions of prematurity and no cause of action and in not specifically overruling the remaining exceptions.

Before considering whether or not the trial judge erred in maintaining the exception, we are confronted initially with the question of whether the plaintiff occupies the position of a creditor or a partner in commendam of the Kohlmeyer partnership.

Plaintiff contends that Salmen had no right under the partnership agreement to share in the partnership profits and could, therefore, not be considered an in commen-dam partner under Louisiana law.

A partner in commendam is defined, in pertinent part, in LSA-C.C. art. 2839 which reads as follows :

Art. 2839. Partnership in commendam, definition and attributes

“Art. 2839. Partnership in commendam is formed by a contract, by which one person or partnership agrees to furnish another person or partnership a certain amount, either in property or money, to be employed by the person or partnership to whom it is furnished, in his or their own name or firm, on condition of receiving a share in the profits, in the proportion determined by the contract, and of being liable to losses and expenses to the amount furnished and no more.
“A partnership may have one or more partners in commendam who may be natural persons, partnerships or corporations, domestic or foreign, or formed under the laws of the United States, provided that at least one natural person, partnership or corporation act as an ordinary or commercial partner of the partnership.”

In ascertaining the status of Salmen (and the assignee plaintiff), we look to the allegations contained in the petition, together with the partnership agreement, in order to determine the intent of the parties.

Although it is true that Louisana courts look to substance and not form in determining whether or not a partnership exists, and ordinarily it is immaterial that the parties use the word partnership in establishing their business relationship, nevertheless, the allegations of the petition, when considered in connection with the language of the partnership agreement, aid in the determination of the intent of the parties at the time the business relationship was established.

In this connection, allegation 10 of plaintiff’s initial petition states:

“By the Fifteenth Amendment to the articles of partnership of Kohlmeyer & Co., dated as of June 27, 1969, Raymond F. Salmen was admitted to the partnership as a special or limited partner and contributed to the capital of the partnership 6,000 shares of common stock of American Home Products Corporation which were owned by Salsul Company but registered in the name of Raymond F. Salmen.” (emphasis supplied)

In addition, plaintiff’s supplemental petition states:

“ * * * Nevertheless the general partners wrongfully permitted general partners, especially but not limited to those on the management committee, to become and remain so greatly indebted to the partnership that when faced with claims of creditors the capital of the commendam partners was wrongfully used to pay the debts for which the general partners were liable.” (emphasis supplied)

Further, section 3A of the Twenty-Second Amendment to the partnership agreement, dated March 31, 1970, provides that the limited and general partners will receive interest on the average amount of cash, on the average value of memberships in or on exchanges, and on the loanable value of securities contributed by each of the partners to the partnership. In addition, section 3C of the Twenty-Second Amendment contains a provision for “additional interest” to be paid to the partners on the average cash, memberships or loanable value of the securities posted, provided the earned profits of the partnership were sufficient to allow the additional interest payments. Section 4 provided that limited partners were entitled to receive interest on loanable value of securities and on the amount of cash contributed to the same extent as the general partners.

Section 2 of the Thirtieth Amendment, dated January 1, 1972, deleted the interest payments provided for in the Twenty-Second Amendment and substituted therefor a provision that the partners were entitled to receive interest at the prime rate plus four percent (4%) per annum on cash and memberships and four percent (4%) on the loanable value of the securities contributed by them to the partnership.

Furthermore, section 3 of the Thirtieth Amendment, in pertinent part, provides:

“Partners in commendam or limited partners shall be those partners who shall contribute to the capital of the partnership and whose participation in the profits and losses of the partnership are limited. * * * ” (emphasis supplied)

When we consider the allegations contained in the original and supplemental and amended petitions, together with the pertinent amendments of the partnership agreement and particularly section 3 of the Thirtieth Amendment which provides for participation by the limited partners in the profits and losses of the partnership, we are led to the conclusion that Salmen is a partner in commendam of the partnership and not a creditor. Accordingly, Salsul, plaintiff and assignee of Salmen, comes into court as a partner in commendam with no greater nor lesser rights than those of the assignor.

Having so concluded, we turn now to a consideration of the exception of prematurity. This exception is based on the rule that the. in commendam partner has no right to sue co-partners while the partnership is in liquidation. See Jeffries v. Moore, 219 La. 692, 53 So.2d 898 (1951); Lawrence v. Recoulley, 235 So.2d 437 (La.App., 2d Cir. 1970).

Plaintiff, in argument, does not quarrel with the foregoing rule and recognizes they do not come within the generally recognized exceptions to the general rule enumerated in “Symposium: A Survey of the Louisiana Law of Partnership”, 45 Tul.L.R. 329, 368-369 (1971), as follows :

1. The cause of action arises independently of the partnership relation. Parker v. Davis, 225 La. 359, 72 So.2d 877 (1954).
2. There has been a voluntary settlement of the firm and a partition of its assets. Jenkins v. Howard, 21 La.Ann. 597 (1869); Rondeau v. Pedesclaux, 3 La. 510 (Orl. 1832).
3. The parties have, by express agreement, segregated a particular item of account from the partnership settlement. Parker v. Davis, 225 La. 359, 72 So.2d 877 (1954).

However, it is plaintiff’s contention that the rule that one partner cannot sue a co-partner or the partnership while the partnership is in liquidation is not applicable to partners in commendam. Plaintiff further claims that the rule is inapplicable to his claim for the reason that the general partners incurred large indebtedness to the partnership, thereby wrongfully using the capital and securities contributed by the in commendam partner. According to plaintiff, this breach of the fiduciary relationship by the general partners contributed to the partnership failure. Plaintiff relies on the case of Novick v. Miller, 222 La. 469, 62 So.2d 645 (1952).

We find no merit to plaintiff’s argument that the general partners’ alleged breach constitutes an exception to the general rule. The Novick case cited by plaintiff does not support plaintiff’s contention in this respect.

The Supreme Court, in Novick, concluded that an in commendam partner could not base his suit for dissolution and liquidation of the partnership on the ground that general partners substantially increased their salaries. The court denied the demand for dissolution, but reduced the amount of the salary increase made to the general partners.

Nor do we find merit to plaintiff’s contention that the rule, that a partner has no right to sue a co-partner pending liquidation of the partnership, has no application to a partner in commendam. We note that while plaintiff’s well researched brief explores in depth the jurisprudence relating to partners in commendam, no authority is cited to support this contention. Furthermore, our research of the jurisprudential and statutory authority on partnerships has failed to reveal any support for this contention. Nor can we see any rationale for such an exception. The reason for the rule is that following a liquidation and accounting of the partnership a claim by one partner against another might very well be moot. In this respect, we can perceive of no difference between a general partner and a partner in commendam.

Accordingly, we conclude the exception of prematurity was properly maintained by the trial judge. Having so concluded, we find it unnecessary to consider the remaining exceptions. The judgment maintaining the exception of prematurity is dispositive of the instant case. The judgment dismissing plaintiff’s petition is affirmed.

Affirmed.

      . In relation to Kohlmeyer & Co., Karp occupied a status similar to that of Salmen, the assignor and partner in commendam.

      . See SAS Jaworsky v. LeBlanc, 239 So.2d 176 (La.App., 3d Cir. 1970), writ refused, 256 La. 911, 240 So.2d 373 (1970).

      . This amendment provided for a three percent (3%) interest on the loanable value of the securities contributed and an equal amount in additional interest.

      . Carte Blanche Corporation v. Pappas, 216 So.2d 917 (La.App., 2d Cir. 1968) ; Harris v. Westwood Homes, Inc., 191 So.2d 702 (La.App., 4th Cir. 1966).


author: BOLIN, Judge. MARVIN, Judge

text:
    Joe E. CULOTTA, Plaintiff-Appellant, v. SECURITY INDUSTRIAL INSURANCE COMPANY, Defendant-Appellee.
    No. 12801.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    Rehearing Denied, En Banc, Feb. 9, 1976.

    Hal V. Lyons, Shreveport, for plaintiff-appellant.
    Talbot, Sotile & Carmouche by Donald T. Carmouche, Donaldsonville, for defendant-appellee.
    Before BOLIN, MARVIN and GLAD-NEY, JJ.

       Marvin, J., dissented.

   BOLIN, Judge.

Plaintiff, Joe E. Culotta, suffered a gun-shot wound at the hands of an unidentified assailant and was hospitalized for a period of six days. Following denial of his demands by defendant, Security Industrial Insurance Company, plaintiff filed suit seeking to recover $300 for his hospital expenses, plus penalties and attorney’s fees, under five policies of insurance issued to him by defendafit. Each policy provided a daily hospital benefit for hospital confinement necessitated by bodily injury caused by accidental means.

It was agreed the court should render judgment on the basis of a stipulation of facts and briefs filed in the record. The trial judge found the injuries were intentionally inflicted upon plaintiff and were excluded from coverage under a specific exclusionary clause found in each of the five policies. Plaintiff appealed; while the appeal was pending, plaintiff died and his heirs were substituted as party plaintiff.

It was stipulated that Joe Culotta was the owner of the policies of insurance alleged in plaintiff’s petition and that these policies were in force and effect on the day of plaintiff’s injury. Further, that on July 2, 1974, Culotta was employed at the E-Z Liquor Store, Shreveport, Louisiana, and was on duty when an unknown bandit entered the liquor store armed with a .38 caliber revolver; that plaintiff, Joe E. Culotta, did not resist the robber in any manner and yet the robber pointed his revolver directly at Culotta and fired the revolver at him. The robber also shot and killed Nick Cadaro, owner of the store, and seriously wounded Culotta. According to the police report attached to the stipulation, the holdup man made his escape after taking the cash from the store and neither of the victims had resisted the robber. The trial judge stated, in his reasons for judgment, that the robber had not been apprehended on the date of trial, June 30, 1975.

The exclusionary clause, which is duplicated in each of the five policies, provides under “Exceptions”:

The daily Hospital Benefit is not payable with respect to any hospital confinement which results diréctly or indirectly, wholly or partly, from any one of the following causes: . . . (f) injuries intentionally inflicted upon the Insured by another person; . . . ”

Plaintiff-appellant alleged the trial judge erred in his determination that the armed robber intended to inflict bodily harm on plaintiff; that, if this is a finding of fact, it would have to be assumed the armed robber went to E-Z Liquor Store, not with the intention of robbing the store but rather with the intention of inflicting injury on the insured, and that the robbery was incidental to murder rather than murder being incidental to robbery.

Reliance for the above contention is placed in the rationale of the court in Chambers v. First National Life Ins. Co., 253 So.2d 636 (La.App. 4 Cir. 1971). In Chambers the insured had a policy of accident insurance which provided for accidental death but excluded “death caused by the intentional act of the insured, or any other person, while sane or insane.” The insured was seated at a bar when a man entered the bar from the insured’s rear, walked toward him, emptied a pistol into the insured’s back without seeing his face, and then walked out, without saying a word. The insured died. No motive could be found for the killing. An action was brought under the policy and the court held that plaintiff had the burden of proving death by violent and external means unforseen by the victim, to show that death was “accidental”. The burden then shifts to the defendant to prove that death falls under the “intentional act” exclusion by showing both that (1) the killing was intentional and (2) the actual victim was the intended victim. The court held in that case it had not been shown the actual victim was the intended victim.

Defendant cites the case of Tornabene v. Atlas Life Insurance Company, Inc., 295 So.2d 10 (La.App. 4 Cir. 1974), in which the court reviews most of the Louisiana cases involving policies excluding from coverage injury or death resulting from an intentional act of a person other than the insured. In rendering judgment for plaintiff, the court held the insurance company failed to carry the burden of proving the killing was intentional or that the deceased was the intended victim.

Defendant acknowledges the burden is on the insurer to prove the victim was the intended victim. However, defendant urges that in the instant case all questions are clearly and concisely answered by the police report and that the situation was further clarified by the portion of the stipulation which states: “Plaintiff, Joe E. Culotta, did not resist the robber in any manner and yet the robber pointed his revolver directly at Mr. Culotta and fired the revolver at him.”

We agree with the finding of the trial judge that the facts and circumstances surrounding the incident, together with the above quoted statement, leave no doubt the armed robber entered the liquor store with the intention of robbing the store. Further, from the stipulation there can be no doubt that the robber intentionally fired the gun pointed directly at the insured.

In Tornabene the court, commenting on the decision in Wildblood v. Continental Casualty Co., 182 La. 202, 161 So. 584 (1935), stated that “this opinion [Wild-blood] by implication of its reasoning may place upon the plaintiff the burden of showing ‘reasonable probability’ that the intended victim was another person. However, we do not so interpret the case. . We interpret Wildblood simply as holding that the ‘intentional act’ exclusion does not apply if the actual victim was not the intended victim.’ ”

The interpretation of exclusionary clauses in policies such as the one here in question has been judicially refined and there now emerges a fairly well-defined rule. In those cases in which the evidence shows that the insured, though violently killed, was thought by the assailant to be a person other than the individual against whom the violence was directed, that is, if the assailant was mistaken in the identity of his victim, an exclusion such as contained in the instant policy would not prevent recovery. However, if the insurer carries the burden of proving that (1) the assailant recognized the insured as an adversary or was not mistaken in the identity of his victim; and (2) he intentionally inflicted an injury on the insured, neither the latter nor his survivors can recover under a policy containing “an intentional act” exclusion. Briley v. Union National Life Insurance Co., 246 So.2d 265 (La.App. 1st Cir. 1971).

In the instant case there is no evidence the robber shot the insured in the mistaken belief that he was some other person. On the contrary, the evidence, comprised of the police report and the stipulation, preponderates that the robber intended to shoot the person at whom he aimed the gun, who happened to be the insured.

We find plaintiff was the victim of injuries intentionally inflicted upon him and is thus prevented from recovering hospital benefits under the exclusionary clause contained in the policies.

The judgment is affirmed at plaintiffs’ cost.

MARVIN, J., dissents and assigns written reasons.

MARVIN, Judge

(dissents).

From the stipulated facts we know only that the assailant-robber entered the liquor store, pointed and fired the pistol at the owner, Cadaro, killing him, and then pointed and fired the pistol at plaintiff, Culotta, wounding him. Afterwards, the assailant-robber took the cash from the register, fled the store, and has not been apprehended. There is no evidence to show that either Culotta or the robber was known to one another, whether by sight, by name or by other identifying characteristics. The assailant-robber could have shot Culotta because he thought Culotta was a person that knew the assailant by sight, by employment or by name or other association. He could have shot Culotta because he thought Cu-lotta was some sort of an armed guard or night watchman. He could have shot Cu-lotta because he wanted to do away with all witnesses to the armed robbery. He also could have shot Culotta and Cadaro because of a grudge against them, or because of a grudge against the owner and an employee of the liquor store, other than Culotta. Why the assailant shot Culotta is not known, and may only be surmised by this court and the trial court, when there are no more facts than are present here. For example, we are not told that Cadaro and Culotta were the only persons in the store besides the assailant-robber. We are not told what if anything the assailant said before or after the shootings. We are not told whether either one or the other (Cu-lotta and the assailant) knew each other. We can assume as did the majority and as argued by the insurer-appellee that Culotta was shot because the assailant wanted to do away with all witnesses to the robbery. But in making this assumption, we have to make other assumptions as to the motive or even the absence thereof of the assailant; that .nothing was said; that the assailant did not mistakenly identify or associate Culotta with some thing or activity connected with the assailant.

The law is that the insurer has the burden of proving not only that the shot was intentionally and not accidentally fired, but that the person that the assailant intended to shoot was in fact the insured. Briley, Chambers, and Tornabene, cited by the majority clearly stand for this principle. If the assailant was mistaken as to the identity of the person he intentionally injured, the exclusion provision does not apply. Chambers, supra. The burden, however, of showing this rests with the insurer. Under the scant facts presented, the majority can assume the assailant was not mistaken as to Culotta. We can also assume on the basis of the scant facts presented that the assailant was mistaken about who or what Culotta was and why Culotta was in the store. The burden of negativing this or showing that the only reasonable hypothesis consistent with the exclusion, under the established jurisprudence, rests heavily upon the insurer.

I would hold that under the scant factual picture before us, the insurer has not met the burden in this case and would reverse the trial court.

I respectfully dissent.


author: GLADNEY, Judge.

text:
    James A. IRVIN et al., Plalntiffs-Appellants, v. Elaine SAVELLE et al., Defendants-Appellees.
    No. 12804.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    Rehearing Denied, En Banc, Feb. 9, 1976.

      Blanchard, Walker, O’Quin & Roberts by Wilton H. Williams,- Jr., Jerald L. Pereman, Shreveport, for plaintiffs-appellants, James A. Irvin and Ronald Lee Irvin.
    Gist, Methvin & Trimble by Dewitt T. Methvin, Jr., Alexandria, for defendants-appellees, Elaine Savelle and State Farm Mut. Auto. Ins. Co.
    Before BOLIN, MARVIN and GLAD-NEY, JJ.
   GLADNEY, Judge.

James A. Irvin, individually and on behalf of his then minor son, filed this suit naming as co-defendants Elaine Savelle, individually and for and on behalf of her minor son, William F. Gibson, Jr., State Farm Mutual Automobile Insurance Company, liability insurer of Elaine Savelle, and Aetna Casualty & Surety Company liability insurer of the automobile owned by Billy J. Long.

The demand seeks recovery for damages sustained by Ronald Lee Irvin as a result of an automobile accident in which he was involved on September 29, 1972 while riding as a guest passenger in an automobile owned by Billy J. Long and being operated at the time of the accident by William F. Gibson, Jr., the then minor son of defendant Elaine Savelle.

Aetna moved for a summary judgment, contending that it could not be held responsible for any acts of negligence on the part of defendant Gibson while operating the Long vehicle due to a “student risk endorsement” contained in its policy. The motion for summary judgment was granted and the issues so raised are not before this court as part of this appeal. Ronald Lee Irvin became a major subsequent to the date of filing the original petition and the petition was modified so as to reflect this fact.

The record reveals that the instant matter and the case of Allen Michael Hennigan vs. Elaine Savelle, et al were tried simultaneously with the Hennigan case being tried to a jury and the Irvin case being tried before the judge alone. Both the district judge and the jury found in favor of the defendants on the question of liability.

On the morning of the accident plaintiff and his three companions, Gibson, Allen Michael (Buzzy) Hennigan, and Terry Long, set out on a trip from Shreveport to Baton Rouge to attend a Fair Park High School football game to be played that night. Gibson and Terry Long were at that time seniors at Fair Park High School, and Hennigan had graduated from that school the year before. The trip had apparently been planned the night before and was to be made in a 1970 Ford automobile owned by Billy J. Long, but which his son Terry used extensively, with the owner’s consent and permission.

Prior to starting the trip the four young men purchased approximately one case of beer at a convenience store located near Fair Park High School. The actual purchase was made by Hennigan, the only one of legal age, with money provided by all four. The trip commenced with Terry Long driving the automobile owned by his father. The boys apparently had the intention of taking the same route to Baton Rouge as a group of Fair Park High School chartered buses carrying other students to the football game, and, upon leaving the convenience store, were of the opinion that they were preceding the buses on this route.

When the 1970 Ford vehicle reached a point just south of the Shreveport city limits on Louisiana Highway 1, it became apparent to the passengers that Terry Long, the initial operator, was drinking beer heavily. While the testimony is not altogether clear as to whether he was actually intoxicated at this time, it was apparent to the occupants that if he continued drinking in the manner he was at that time, he would not be able to safely drive all the way to Baton Rouge. At this point the plaintiff volunteered to take the wheel, his testimony being as follows:

“A. Well, I knew that Terry was going to drink more than — you know, more than it would be safe for him to drive, so I told them that I would be glad to drive if they wanted to drink because I wasn’t going to drink. I had a beer in my hand just so they wouldn’t say, ‘Here, have a beer’ all the time, you know, the way boys will do.”

Following this change of drivers, the group proceeded toward Natchitoches on Louisiana Highway 1. At some point between Shreveport and Natchitoches, and while Lee Irvin was driving the 1970 Ford, an automobile being operated by Billy J. Long and in which his wife was riding as a guest passenger passed them on the highway. The two cars then pulled onto the shoulder of the road and Lee Irvin and Terry Long got out of their vehicle and walked toward Terry Long’s parents’ car. Mr. Long testified that at the point he passed Jiis other vehicle, the road was straight and level and visibility good. He also testified he could easily discern that his son was not, at that time, operating the vehicle. Lee testified that Mr. Long did not, when his son and he alighted from the car, admonish his son to retake the wheel of the car, nor did he tell them that no one other than the plaintiff could operate the vehicle. He also testified that following their conversation, Mr. Long admonished the boys to be careful, observed their return to the vehicle and witnessed the fact that Irvin once again got behind the wheel. The plaintiff further testified that, upon re-entering the traveled portion of the highway, Mr. Long once again passed their car. The Long vehicle, in fact, disappeared from view and was not in the vicinity of the accident scene at the time of the accident.

Following this brief interlude, the group continued their journey southward, traveling through Natchitoches with plaintiff still behind the wheel. South of Natchitoches, they were passed by another automobile carrying some of their fellow students, who advised them that the buses which they thought were behind them were in fact ahead of them. They then pulled off the road and debated as to what their course of action should now be, given this change in circumstances. The testimony reflects that Terry Long, Hennigan and Gibson all wanted to go faster in order to catch the buses, a course of action which plaintiff did not want to follow and which he let them know that he was in opposition to. Reluctantly, however, he relinquished the wheel to Gibson for the express purpose of driving faster in order to attempt to catch the buses. The plaintiff testified that when he relinquished the wheel to Gibson, he did so because of the fact that other than himself, this individual was the least alcoholically affected of any of the occupants of the vehicle, and, at the time he turned the wheel over to him, Gibson did not, by his actions, mannerisms or speech, appear intoxicated. In fact, it was not until after he got behind the wheel of the Ford automobile that Gibson’s intoxication manifested itself, as he began almost immediately to drive recklessly, not only traveling at a faster rate of speed than had been anticipated, but also weaving in and out of traffic and passing other automobiles with reckless abandon. The plaintiff testified that as soon as the degree of Gibson’s intoxication became evident, he began to protest violently but to no avail. It was shortly after this point that the record shows that Gibson attempted to pass another southbound vehicle and pulled directly into the path of a northbound vehicle being driven by Kenneth Lusk. Both vehicles, in an attempt to avoid a collision, swerved toward the left-hand southbound shoulder of the highway where they collided headon, resulting in severe injuries to the plaintiff.

A blood alcohol test had been run on William Gibson some two hours following the time of the accident and revealed a blood alcohol content of .104 grams per cent. Expert testimony was adduced to the effect that the driver’s ability to safely operate a vehicle would have been substantially impaired with such blood alcohol content. The expert further testified that the drinking would have causal connection with the accident.

The trial judge in rendering judgment against plaintiff, reasoned:

“The demands of the plaintiff are rejected with these comments:
“I find as follows: That Lee knew or certainly should have known of William’s condition. He testified that William had been drinking the least as compared to him, referring to himself. Lee refused to drive any faster in order to catch up with the buses, after being told by the boys in the other car — Wilbur Smith being one of those boys. He testified that he knew that William would drive faster because he refused to. That was the reason that William was to drive the car from that point forward. That was the purpose. He used the exact words under cross-examination. And he knew what William had been drinking at that point. He testified under cross-examination that he did not hear William say he did not want to drive. Again, under cross-examination he reiterated that he was aware of what William was drinking and what he had been drinking, and was so aware when he turned the driving over to him. And the purpose of turning it over to him was in order that we would drive faster because Lee quite properly refused to drive any faster, and he voluntarily got back in the car in order to pursue the buses.”

Appellant assigns error to the judgment appealed by reason of its application of the doctrine of assumption of risk to the facts of this case. Appellee further argues, in the alternative, that no liability insurance was afforded under the policy issued by State Farm Mutual Automobile Insurance Company to Mrs. Savelle.

As pointed out in Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105 (1971), the defendant who bears the burden of proving contributory negligence must prove by a preponderance of the evidence that the driver’s intoxication was a substantial factor contributing to the driver’s accident. In the cited case Justice Tate states the correct rule of law to be:

“ * * * A passenger riding with a driver who has been drinking excessively only assumes the risk of drunk driving, that is, of accidents resulting from drunk driving. When an accident occurs involving a driver whose mental or physical faculties have been materially impaired due to the influence of intoxicants, a guest passenger who knows or should know of the driver’s condition and nevertheless voluntarily rides with him cannot recover for injuries received in an accident caused in whole or in part by the driver’s negligence, if the alcohol-induced impairment of the driver’s ability is a substantial contributory cause of the driver’s negligence. Id. p. 107.

From a careful review of the record we find that the evidence clearly shows that William Gibson, the driver of the Long vehicle, was intoxicated and was mentally and physically impaired by drinking over a period of several hours preceding the accident. The facts of the instant case bring it within the rule prohibiting the recovery of guest passengers where the driver’s ability to control an automobile has been materially influenced by the consumption of intoxicants. Roller v. Cormier, 192 So.2d 568 (La.App., 3d Cir. 1966); McAllister v. Travelers Insurance Company, 121 So.2d 283 (La.App., 1st Cir. 1960); Mercier v. Fidelity & Casualty Company of New York, 10 So.2d 262 (La.App., Orl.1942) ; Bourg v. Aetna Casualty & Surety Company, 77 So.2d 131 (La.App., 1st Cir. 1954).

Counsel for Irvin, however, takes issue with the trial court’s holding that Irvin knew or should have known that Gibson was intoxicated when he relinquished the Long automobile to him, and contends that it was not until Gibson began driving and plaintiff had become a virtual prisoner in the recklessly driven automobile, did the extent of Gibson’s condition become apparent.

According to the testimony of Hennigan, all had been drinking since they left Shreveport and all knew that the others were drinking. Having voluntarily accompanied his three companions on a mission during which some if not everyone consumed an excessive quantity of beer, Irvin must be charged with knowledge that Gibson was unfit to drive the automobile when Gibson relieved him as driver. Certainly at that time Irvin had the opportunity of refusing to travel further as a guest passenger. The basis of the defense of assumption of risk is express or implied consent of the injured person to relieve the negligent party of his obligation of reasonable care towards him and such consent must be made with full knowledge and understanding of the consequences. Cf. Mitchell v. Hepinstall Steel Company, 264 So.2d 325 (La.App., 4th Cir. 1972, cert. denied).

The facts in this case are convincing that Irvin knew, or should have known, of Gibson’s unfitness to drive.

In view of our finding that appellants’ right of recovery is barred by reason of contributory negligence under the assumption of risk doctrine, we need not decide the other issues presented herein.

Affirmed.


author: HALL, Judge.

text:
    SOUTHWEST MOTOR LEASING, INC., Plaintiff-Appellant, v. MATTHEWS LUMBER COMPANY OF MANSFIELD, INC., Defendant-Appellee.
    No. 12791.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    Rehearing Denied, En Banc, Feb. 9, 1976.

      Skeels, Baker & Coleman by Donald L. Baker, Shreveport, for plaintiff-appellant.
    Colvin, Hunter, Brown & Plummer by Robert E. Plummer, Mansfield, for defendant-appellee.
    Before BOLIN, HALL and GLADNEY, JJ.
   HALL, Judge.

This is an action for rental allegedly due under a lease contract whereby plaintiff, Southwest Motor Leasing, Inc., leased to defendant, Matthews Lumber Company of Mansfield, Inc., a 1971 Cadillac automobile. The lease was negotiated by a third person, Jack Clothier, who delivered the leased vehicle to the lessee, received from the lessee an advance payment of rental, and failed to remit same to the lessor. The district court in a comprehensive written opinion rejected the demands of plaintiff, expressing the opinion that plaintiff clothed the third person, a broker, with indicia of authority to receive payment and, thus, payment to the broker by means of a check payable to the broker discharged the lessee’s obligation to the lessor.

Plaintiff appealed. For the reasons expressed in this opinion we affirm the judgment of the district court.

In the spring of 1971, Frank Matthews, President of the defendant corporation domiciled in Mansfield, Louisiana, expressed to his son a desire to rent a Cadillac automobile. The son contacted Gordon Allen Leasing Agency in Dallas from whom the son had previously leased a car. Jack Clothier, who formerly worked for the Dallas agency, learned of Matthews’s interest in leasing an automobile and on his own proceeded to put a deal together. Clothier contacted a company in Houston which was at first interested in the deal but later decided against it for reasons of its own. Clothier then contacted the plaintiff company which is engaged in the business of leasing automobiles in Houston. After making an investigation, plaintiff determined it would be willing to enter into a lease arrangement with defendant. Plaintiff delivered to Clothier the Cadillac automobile, a lease agreement signed by an employee of plaintiff to be signed by the lessee, a delivery receipt to be signed by the lessee, and an invoice for the deposit and rental payment called for under the terms of the lease agreement.

Clothier drove the automobile to Mansfield and presented the documents to Matthews. Matthews disagreed with some of the terms of the lease agreement and changes were made and initialed by him. The agreement called for a monthly rental of $212.32 and initial deposit of the same amount. The amount of the deposit shown on the form was changed from $212.32 to $200, Although the amount shown on the form for the monthly rental was not changed it was clearly Matthews’s intention that the monthly rental also be changed to $200. The mileage charge of $.05 per mile was scratched out and the free mileage was increased from 20,000 to 40,000 miles per year.

Matthews also insisted on paying one year’s rental in advance, that is, $2,400 based on $200 per month. Clothier typed a new invoice from “Jack Clothier, Leasing Broker” to the defendant company for the first year full payment of $2,400 and upon receipt of payment marked the invoice “paid.” Defendant gave Clothier a check in the amount of $2,400, payable to “Jack Clothier, Leasing Broker.” Matthews signed the delivery receipt and took possession of the automobile.

Clothier cashed the check and remitted to plaintiff the sum of $566.24, being the amount called for by plaintiff’s invoice plus one additional month’s rental in the amount of $212.32. Clothier returned the original contract to plaintiff and plaintiff’s manager initialed the changes made on the contract signifying his agreement with them. Clothier later made one additional payment in the amount of $212.10 to plaintiff.

Plaintiff began sending monthly statements to defendant for monthly rental in the amount of $212.32. Defendant got in touch with plaintiff and informed it that the first year rental had been paid in full in advance. Meetings were held thereafter between plaintiff’s representatives and defendant’s representatives but the situation could not be worked out. At the expiration of one year defendant requested plaintiff to pick up the automobile which plaintiff ultimately did. Both parties, particularly plaintiff, have made efforts to recover the money paid to Clothier and retained by him, but without results.

This suit followed. Plaintiff sued for the balance of rental allegedly due and for the cost of recovering the automobile and damages. Defendant reconvened for storage costs and damages. The district court rejected the demands of both plaintiff and defendant. Only plaintiff appealed.

The central issue in this case is whether plaintiff clothed Clothier with implied and/or apparent authority to accept payment of the lease rental. If he was clothed with such authority then payment to the agent constituted payment to the principal and the principal would be es-topped from denying payment to its agent.

Appellant argues that Clothier was a “broker” and was not plaintiff’s agent and that payment to a broker does not amount to payment to a principal in the absence of a special authority from the principal to the broker to receive payment.

LSA-C.C. Art. 3016 defines a broker as follows:

“The broker or intermediary is he who is employed to negotiate a matter between two parties, and who, for that reason, is considered as the mandatary of both.”

The old but authoritative case of Toledano v. Klingender, 6 La. 691 (1834) discussed the authority of a broker in the following language:

“It is only in facilitating the transac-' tion of business in relation to the sale and purchase of produce, that the broker is considered as the common agent of the parties: the channel of communication between them. For any other purpose he is not regarded by law as the agent of either party. To justify a payment therefore made to a broker, a purchaser is bound to show, either a general custom, or a special authority from the vendor to receive payment.
it iji * iff
“ . . . In a case balanced as this is, if it were shown that the defendant was induced to pay the broker by any act of the plaintiff, we should think the loss ought to fall on him. But in the absence of proof of any authority in the broker to receive payment, or of any act from which such authority might be presumed, we are of opinion that the defendant acted without due caution, and equity requires that he should sustain the loss.” (Emphasis supplied)

Consistent with Toledano and cited by the trial court in its reasons for judgment, is the following statement from 12 Am. Jur.2d, Brokers § 79 which statement is an accurate and concise statement of the law:

“Since a broker is usually given only such authority as is commensurate with the duty of negotiating a deal, he is generally deemed to have no implied power to receive payment in behalf of his employer, and a debtor of the latter making such payment does so at the risk of having to pay again in case the broker defaults. An exception to the foregoing rule prevails where the broker is clothed with the indicia of a^tthority to receive payment, as where he is entrusted with possession of the goods to be sold or where the principal is not disclosed.” (Emphasis supplied)

Clothier may not technically have been a broker as he was not actually “employed” by either party to negotiate the deal. It is interesting to note that neither party agreed to pay Clothier any commission or other compensation in connection with the transaction. Clothier testified he interested himself in the transaction in order to maintain a relationship with the Matthews in the hope of perhaps doing some future business. In any event, his classification as a broker is not the decisive issue. The decisive issue is whether Clothier had authority, implied or apparent, to accept payment of the lease rental on behalf of plaintiff.

Plaintiff delivered the automobile, the lease agreement, the delivery receipt and the invoice for the initial lease payment to Clothier for delivery to Matthews with instructions to collect the amount shown on the invoice. Clearly, Clothier was expressly authorized to accept payment on behalf of plaintiff of the initial payment. Authority to accept partial payment impliedly includes authority to accept full payment in advance of an entire year’s rental. An implied agency is an actual agency. Busby v. Walker, 84 So.2d 304 (La.App. 2d Cir. 1955); Dart Distributors, Inc. v. Foti Enterprises, Inc., 271 So. 2d 705 (La.App. 1st Cir. 1972). We hold, therefore, that Clothier had actual authority, although not express, to accept payment from defendant.

Furthermore, Clothier had apparent authority to accept payment. The doctrine of apparent authority was expressed in Krautkramer Ultrasonics, Inc. v. Port Allen Marine Service, Inc., 248 So.2d 336 (La.App. 4th Cir. 1971), which held:

“Although the Louisiana Civil Code offers no express concept of apparent authority, this concept is well embedded in our jurisprudence, presumably in response to changing commercial needs.
“The doctrine of apparent authority requires (1) that the principal make manifestations to a third party in some form, and (2) that the third party reasonably rely on the agent’s purported authority as a result of the manifestations of the principal.”

The concept of apparent authority was expressed in Busby v. Walker, supra, as follows:

“. . . With respect to third persons, an agency may arise from acts and appearances which lead others to believe that such a relationship has been created, that is, by estoppel, and with respect to such third parties who deal with the agent, the agency may be apparent only and exist because of the estoppel of the principal or agent to deny the existence of such relationship, if the third party has relied on such appearance so that he would be prejudiced if the fact were shown to be otherwise ...”

In the instant case Clothier, who was not Matthews’s agent or employee and who Matthews had never met, appeared at Matthews’s office with plaintiff’s automobile, the documents prepared by plaintiff, including the invoice and with actual authority to collect the amount of the invoice. By entrusting these items and functions to Clothier, plaintiff clothed him with apparent authority to receive payment of the full year’s rental in advance. Defendant relied and acted upon such apparent authority. Plaintiff is bound by defendant’s payment to its agent, with implied and/or apparent authority, and is estopped from denying receipt of payment.

The case of Hearin v. Albin, 246 So.2d 274 (La.App. 1st Cir. 1971), which cited Toledano with approval, and which is cited by plaintiff in support of its position, is distinguishable in that in the Hearin case the person making payment knew that the agent or broker was not authorized to receive payment.

The judgment of the district court is correct and for the reasons assigned is affirmed, at appellant’s costs.

Affirmed.


text:
    Marcus BUTLER, Plaintiff-Appellee, v. George C. DYKES, d/b/a Dykes Motor Company, Defendant-Appellant.
    No. 12820.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 12, 1976.
    George C. Dykes in pro per.
    Freeman & Hall by J. Stacey Freeman, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and SMITH, JJ-
   BOLIN, Judge.

This case having been called for argument in the manner and at the time prescribed in the Uniform Rules of the Courts of Appeal, Rule V, Section 4, and the appellant having neither appeared nor filed a brief prior to the time the case was called for argument, the appeal is considered abandoned and is dismissed at appellant’s cost. Louisiana Code of Civil Procedure, Article 2162 and Uniform Rules, Courts of Appeal, Rule VII, Section 5(b).


author: BEER, Judge. PER CURIAM.

text:
    Roy BROWN v. Calvin YOKUM.
    No. 7159.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearing Denied Feb. 10, 1976.
    Writ Refused March 23, 1976.

      Kierr, Gainsburg, Benjamin, Fallon & Lewis J. Robert Ates, New Orleans, for plainti f f-appellant.
    Anthony J. Vesich, Jr., George H. Jones, New Orleans, for defendant-appellee.
    Before REDMANN, MORIAL and BEER, JJ.
   BEER, Judge.

Roy Brown, plaintiff-appellant, sued defendant-appellees, Calvin and Marguerite Yokum, a married couple, for injuries to his left shoulder sustained on November 7, 1970 as a result of his being attacked and bitten by a dog allegedly owned and/or harbored jointly by Mr. and Mrs. Yokum. From a judgment in favor of Brown against Calvin Yokum individually, plain-ti ff-appellant appeals seeking imposition of liability against Marguerite Yokum as joint or actual owner and/or “harborer” of the dog. He also seeks an increase in the trial court’s award of $1,247.25. We affirm in all respects.

Mr. Brown is a sixty-four year old self-employed painter who was attacked and wrestled to the ground by “Smokey” the dog whose ownership is at issue here. The trial court found that “Smokey” was owned solely by Calvin Yokum, concluding that the gift of the animal by his stepdaughter was “primarily to him.” Nevertheless, appellant vigorously contends that Mrs. Yokum is liable as the harborer of the animal since the dog was used principally as a watch dog for the house and barroom that was Mrs. Yokum’s separate property.

Article 2321 of the Civil Code reads in pertinent part:

“The owner of an animal is answerable for the damage he has caused . . . .”
(Emphasis ours.)

We construe the Article’s import to be primarily directed towards the owner of an animal which causes damage to another’s person or property. We therefore agree with the trial court’s conclusion that the theory of Mrs. Yokum’s liability as harbor-er of “Smokey” as espoused by appellant is no more than a “secondary means of accountability” insofar as this case is concerned. Here, resolution of the ownership issue by the trial judge grants a basis of relief to appellant.

This is not a case in which ownership of an animal is indeterminable nor one in which a person other than the known owner actually has sole possession and control of an animal that causes damage. Here, Mr. Yokum was primarily responsible for the dog in his capacity as its owner. Although Mrs. Yokum permitted its owner, Mr. Yokum, to keep the dog on her separate property, she did so because of the fact of her marriage to Mr. Yokum. In these circumstances, such care as she may have rendered to the dog is not sufficient to set up any sort of alternative basis for separate recovery against her. Her day-to-day care of the animal could only become dispositive in the absence of proof of its actual ownership or alternatively, if the record contained affirmative proof that she was in sole and absolute control because of some previous arrangement with the actual owner.

Mr. Yokum not only owned the dog and was' head and master of the community, but simply allowed the dog to be used as a watch dog on the separate property of his wife where he, in fact, also resided.

Appellant urges that the trial court’s award was manifestly erroneous in light of the extent of injuries he sustained and seeks an increase in damages. He contends that his injury prevented him from working for approximately three to four months causing substantial loss of income. At trial he contended that his average weekly income was $160 per week, however tax returns filed for 1970 and 1971 revealed yearly incomes of only $2,000 and $1,710 respectively.

Plaintiff-appellant made one emergency visit to Mercy Hospital and five subsequent visits to Dr. Henry J. Braden, his private physician. Treatment primarily consisted of washing of the wound with peroxide and bandaging same.

The trial judge awarded $1,000 for pain and suffering, reimbursement for all medical bills incurred in treating the wound, and $200 for lost wages. He additionally reimbursed plaintiff-appellant for the cost of replacing his torn shirt.

Much discretion is vested in the trial judge and his determination should be permitted to stand on appeal unless the amount awarded is so excessive or inadequate as to constitute an abuse of his discretion. Ward v. Southern Farm Bureau Ins. Co., 306 So.2d 71 (La.App. 1st Cir. 1975). Upon review of the record, we find no such abuse.

The judgment of the district court is affirmed at appellant’s cost.

Affirmed.

PER CURIAM.

In a lengthy and well written application for rehearing able counsel for applicant, Roy Brown, observes that all through these proceedings it has been “maintained” that “the Yokums are separate in property.” But there is absolutely no evidence to this effect and there is unrefuted evidence that Mr. and Mrs. Yokum live together, maintain their marital domicile, and keep Mr. Yokum’s dog at the house separately owned by Mrs. Yokum. The fact that the Yokums chose to occupy the home separately owned by Mrs. Yokum has no affect upon Mr. Yokum’s status as head and master of the community. The dog is not harbored by Mrs. Yokum as able counsel continues to argue. The dog is kept and cared for by Mr. Yokum at his home. That his home simply happens to be in a house separately owned by his wife has no substantive effect whatsoever on this litigation.

The application is denied.


author: BOLIN, Judge. HALL, Judge

text:
    Doris HEMSLEY, Plaintiff-Appellant, v. Florence SIMS, Defendant-Appellee.
    No. 12782.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 1976.
    Rehearing Denied, En Banc, Feb. 9, 1976.

    Writ Refused March 23, 1976.
    Claudius E. Whitmeyer by Alex Ruben-stein, Shreveport, for plaintiff-appellant.
    Rothell, Lawson & Robinson by John M. Robinson, Mansfield, for defendant-appel-lee.
    Before BOLIN, PRICE and HALL, JJ.

       Hall, J., dissented.

   BOLIN, Judge.

Doris Hemsley sued Florence Sims for damages allegedly resulting from an unprovoked battery inflicted upon plaintiff by defendant at approximately 6:00 a. m., on September 12, 1974. Trial was had before a jury resulting in a verdict rejecting plaintiff’s demands. From a formal judgment rendered pursuant to this verdict plaintiff appeals. We affirm.

The altercation between plaintiff and defendant occurred at the residence of their mutual boyfriend. It is conceded plaintiff and defendant had a physical encounter and that defendant was the apparent victor. Plaintiff’s injuries included bruises and lacerations and a broken nose.

The primary issue before the lower court and this court is whether plaintiff’s injuries were the result of an unprovoked assault and battery committed by defendant.

The law is well settled that in an action for assault and battery a plaintiff may not recover damages if she is found to have been at fault in provoking the difficulty in which the injury is received. Wilkins v. Nugent, 108 So.2d 5 (La.App.2d Cir. 1958). The burden is upon the plaintiff to establish by a preponderance of the evidence that the battery occurred and that defendant was the aggressor or that defendant used excessive force under the circumstances. Middleton v. Shaw, 271 So.2d 358 (La.App.2d Cir. 1972); Lavergne v. Hoffpauir, 306 So.2d 462 (La.App.3d Cir. 1975).

It being conceded the trial judge correctly charged the jury as to the law, the only question on appeal is one of fact. From our review of the record we find sufficient facts to support the jury verdict.

The judgment is affirmed at appellant’s cost.

HALL, J., dissents and reserves the right to assign written reasons.

HALL, Judge

(dissenting).

I respectfully dissent from the majority opinion affirming the judgment of the district court for the reason that, in my judgment, the verdict of the jury is manifestly erroneous as a matter of fact and law. The evidence presented to the trier of fact does not furnish a reasonable factual basis for the trial court’s findings.

The encounter giving rise to this suit occurred at approximately 6:00 o’clock in the early morning at the home of John Roberts. The defendant was Roberts’s more recent and consistent girl friend but they had a fight a few days prior to the incident and had not seen each other for several days. Plaintiff was a former girl friend of Roberts and still saw him occasionally.

Plaintiff spent the night prior to the incident with Roberts at his home. Roberts got up in the morning and went to work. Defendant stopped at Roberts’s home on her way to work, her stated reason being to pick up a watch she left there a few days earlier. Defendant noticed that Roberts’s car was gone and that another car was parked in the driveway.

Although defendant had a key to the house she did not have it with her. She picked up a piece of wood from a trash pile and used it to force open a window in the front door, which she had seen Roberts do on other occasions when he did not have his key.

With the board in hand, defendant moved through the house toward the bathroom where she thought she had left her watch. According to defendant, plaintiff confronted her in the hallway and defendant, being startled and believing it was necessary to protect herself, struck plaintiff several times about the face and head with the board. Defendant testified she was scratched by plaintiff during the encounter. Plaintiff testified defendant came into the bedroom, pulled her out of bed by the hair and struck her repeatedly with the board. Plaintiff sustained several bruises and lacerations of the scalp and the back of the head and a broken nose.

Defendant’s version of the incident is highly questionable. Weighing against the veracity of her version are the following factors:

(1) Although she left the watch at Roberts’s home several days earlier, she did not go back to get it until the particular morning when plaintiff was there.
(2) Although she stated she went to the house to get the watch, she did not have her key to the house on that particular morning.
(3) She entered the house forcibly even though Roberts’s car was gone and another car was in the driveway, indicating the presence of someone in the house.
(4) Her testimony about stopping at the house to recover her watch is inconsistent with her reasons for stopping given in her answer to plaintiff’s petition.
(5) Blood on the floor in the bedroom indicates the encounter occurred there rather than in the hallway.
(6) Defendant pleaded guilty to a charge of simple battery in a criminal prosecution arising out of this incident.

Even assuming the jury made a credibility finding in favor of defendant, believing her version over that of plaintiff, and accepting defendant’s version of the incident as true, defendant was not justified in repeatedly striking plaintiff with the board. Plaintiff was not at fault and did not provoke the attack. Assuming plaintiff confronted defendant in the hallway as defendant testified, defendant was not presented with a situation where she could have reasonably believed she was in danger of bodily harm from the other unarmed woman. The force defendant used under the circumstances was excessive in any event.

In my opinion, plaintiff bore her burden of proving an unprovoked battery by defendant, who was the aggressor and used excessive force, even if the evidence is viewed most favorably to defendant. The evidence presented to the jury does not warrant any reasonable factual conclusions or findings to the contrary. The jury failed to apply the law, which was properly given to them in the judge’s charge, to the facts.

The judgment of the district court should be reversed and the plaintiff should be awarded damages.