text:
    John A. KYLE et al. v. CITY OF NEW ORLEANS and Lieutenant Eugene Fields of the New Orleans Police Department.
    No. 7823.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Granted May 18, 1977.
    Leroy J. Falgout, Kenner, for plaintiffs-appellants.
    Philip S. Brooks, Joseph J. Laura, Jr., Freeman R. Matthews, New Orleans, for defendants-appellants.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   GULOTTA, Judge.

Plaintiffs sustained gunshot wounds when arrested by defendant police officers who had obtained information placing suspicion on plaintiffs as perpetrators of an armed robbery. In the subsequent damage suit, the trial judge concluded that the war-rantless arrest, though lawful, had been effected with unreasonable force.

All parties appeal from the general damage awards in favor of plaintiffs against defendants, City of New Orleans and Lt. Eugene Fields of the New Orleans Police Department, in solido. Plaintiffs contend that no probable cause existed to justify the arrest and seek damages for false arrest and imprisonment as well as an increase in the quantum of general damages. Defendants deny liability on the grounds that the arrest was legal and effected with reasonable force under the circumstances.

On February 19, 1972, at approximately noon, the New Orleans Police Department received a report that an armed robbery had been committed by two masked, white males at the A&P Supermarket on Harmony and Magazine Streets in the City of New Orleans. Information obtained in an ensuing police investigation implicated plaintiffs, John A. Kyle and George E. Godbey, as the robbery suspects; and shortly after 8:00 p. m., on the same day, a team of police officers went to Kyle’s apartment to arrest them. ■

Plaintiffs’ version of the incident is that five armed officers — four wearing civilian dress suits and one clad in a windbreaker and sports clothes — positioned themselves at the entrance of the apartment occupied by plaintiffs. According to Kyle, when he opened the door in response to a knock, he observed a male in civilian clothes holding a shotgun; whereupon, in fear of being robbed, he slammed the door. Shotgun blasts were fired into the apartment through the door, and the three plaintiffs were injured.

According to the police officers’ version, they had been reliably informed that the apartment was occupied by two perpetrators of the armed robbery. The police officers claim that they positioned themselves at the apartment entrance; Lt. Eugene Fields then knocked on the apartment door; and, after the door was opened by Kyle, one of the other police officers identified himself and produced his identification folder. Despite this identification, the police officers claim that Kyle slammed the apartment door. During the ensuing attempt to gain entrance, the shotgun was fired for the purpose of disengaging the lock on the door.

PROBABLE CAUSE

The primary thrust of plaintiffs’ appeal is that the trial judge erred in concluding defendants possessed sufficient and reliable information to effect a warrantless arrest. According to plaintiffs, the arresting officers did not have probable cause to believe that plaintiffs had committed the A&P robbery and that no “exigent circumstances” required immediate entry without a warrant. We disagree.

During the investigation immediately following the robbery, the police interviewed Ralph Lozier, a security guard. He informed the officers that Kenneth Hodell, also a security guard, had told him that he (Hodell) had spoken with Kyle and Godbey prior to the robbery, at which time plaintiffs had inquired about obtaining guns; the security of the A&P; the time of arrival of the armored car; and the location of the safe. This conversation between Lozier and Hodell took place approximately two days prior to the robbery. The height and weight descriptions of the suspects were similar to the plaintiffs. The officers were led by Hodell to Kyle’s apartment where the arrest was made.

With regard to the statements given to the police by Lozier and Hodell, Lt. Eugene Fields testified:

“[B]ased on what they had told us, based on the physical description, based on the fact that they [Kyle and Godbey] lived in the area of the supermarket, we felt we had probable cause to go to the apartment and effect the arrest.”

Lt. Fields further testified that Hodell’s admissions following initial lies led him to conclude that there was some type of conspiracy which Hodell was attempting to cover up. Hodell was interrogated by the police for approximately three hours and was arrested and booked in connection with the robbery. Based on this information, the arresting police officers believed that the apartment occupants had perpetrated the robbery and were armed and dangerous.

LSA-C.Cr.P. art. 213 provides, in pertinent part:

Art. 213. Arrest by officer without warrant; when lawful
“A peace officer may, without a warrant, arrest a person when:
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer;”

In State v. Dell, 258 La. 1024, 249 So.2d 118, 122 (1971), the court stated that this “reasonable cause” or “probable cause” to arrest without a warrant

“. . . exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable, trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that an offense has been or is being committed. Compliance with these standards is, in the first instance, a substantive determination to be made by the trial court from the facts and circumstances of the case.
“In such cases, because only factual issues are presented by the contentions, the setting in which the arrests took place becomes a factor of prime importance; facts and circumstances known to the arresting officers from which they might draw conclusions warranted by their training and experience become the focus of our attention with due allowance for the discretion vested in the trial court. * * * ”

Further, as the court stated in State v. St. Amand, 274 So.2d 179, 186 (La.1973):

“ * * * In determining whether reasonable cause for arrest exists, the rigorous proof required for conviction is not needed. Reasonable cause is something less and must be judged by the probabilities and practical considerations of everyday life on which average men, and more particularly average police officers, can be expected to act. * * * ”

Applying the jurisprudential tests for “reasonable” or “probable” cause, we conclude the record supports the trial judge’s determination that probable cause existed to effect the warrantless arrests of Kyle and Godbey. The fact that subsequent information and arrest of other persons proved that the robbery had not been perpetrated by plaintiffs (resulting in the dismissal of charges against Kyle and God-bey) does not alter the fact that information gained prior to the arrest was sufficient to place police officers in the reasonable belief that plaintiffs were perpetrators of the robbery.

REASONABLENESS OF FORCE TO EFFECT THE ARREST

Having concluded that probable cause existed, we are confronted with the question whether the actions of the officers in effecting the arrest were excessive. LSA-C. Cr.P. arts. 220 and 224 provide:

Art. 220. Submission to arrest; use of force
“A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.”
Art. 224. Forcible entry in making arrest
“In order to make an arrest, a peace officer, who has announced his authority and purpose, may break open an outer or inner door or window of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, where the person to be arrested is or is reasonably believed to be, if he is refused or otherwise obstructed from admittance. The peace officer need not announce his authority and purpose when to do so would imperil the arrest.”

The circumstances under which the arrest was effected determine the reasonableness of the police officers’ actions. See Graham v. Ogden, 157 So.2d 365, 366 (La.App. 3d Cir. 1963).

In our case, Hodell had accompanied a group of police officers to the plaintiffs’ apartment after dark on the day of the robbery. After learning from the apartment manager the particular apartment occupied by Kyle and Godbey, the civilian-clothed officers proceeded up the stairs and positioned themselves at the door of the apartment. Lt. Fields, armed with a handgun and shotgun, positioned himself to the left (unhinged) side of the doorway. Sgt. Fred Williams positioned himself to the left of Fields. Another police officer stood behind Lt. Fields; and two other officers, one also armed with a shotgun, stationed themselves to the rear and left of Fields. The hallway was narrow and the lighting was dim.

According to Williams, in response to his knock, Kyle opened the door approximately 18 inches. Williams testified that when the door opened, he showed, in plain view of Kyle, his police identification and badge, and at the same time stated “Police”. Whereupon, Kyle immediately slammed the door and the officers could hear voices and movement from within the apartment. Williams stated that he kicked the door open partially, but that it was slammed shut again. According to Fields, after the second unsuccessful attempt to open the door, he (Fields) fired two shotgun blasts at a downward angle to the right, lower portion of the door beneath the lock in order to gain entry. Williams fired one pistol shot at an upward angle in the upper part of the door. Plaintiffs were injured by pellets from a shotgun blast.

The testimony of Fields and Williams was generally corroborated by the other arresting officers. Sgt. Williams testified that the slamming of the door following his identification as a police officer “gave us more credence to the story that had been related to us about the armed robbers”. The officers testified that they continued to shout their identity as policemen in the course of the shoving contest, but the resistance to their entry continued. Faced with the choice of retreating or forcibly entering the apartment, Lt. Fields decided to fire into the door and gain immediate entry rather than to subject himself and his officers to the injury that might result from a shootout if the suspects were given time to arm themselves.

Under these circumstances, we conclude that the officers acted reasonably in effecting the arrest. In reversing the lower court judgment on this point, however, we do so as a matter of law. Our conclusion is not based on a credibility determination different from that of the trial judge. Rather, we disagree with the trial judge’s assessment of the legal duty required of police officers under the circumstances.

In his reasons for judgment, the trial judge stated:

“Before firing blindly through the door, the officers had the duty to make sure their identification was comprehended, or take less violent action to accomplish the arrest.”

We disagree. We conclude, as a matter of law, that the duty of the police officer is to do that which is reasonable, i. e., he is required to take reasonable means to inform the suspect or accused of his identity as a police officer. We base our holding on the factual finding, implicit in the trial judge’s reasons, that Williams identified himself as a police officer both visually by presenting his badge and vocally by announcing his status. In performing those actions, the officers discharged their duty. Given this evidence of reasonable identification, the trial judge was in error to impose upon the officers the further duty of making certain that their identification was comprehended by the arrestee.

We are aware that Kyle claims he misunderstood the identity of the officers and failed to comprehend their announcement, but the facts remain that the announcement was reasonably made and that the door was slammed. Regrettably, Kyle himself precipitated the firing of the weapon when he unjustifiably slammed the door. His failure to recognize the identity of the officers was not the result of any omission on the part of the police officers, but rather a consequence of his, Kyle’s, failure to understand their adequate announcement. Kyle, in effect, provoked the force employed by the officers and, therefore, is not entitled to recovery. Greening v. Hill, 221 So.2d 261 (La.App. 2d Cir. 1969), writ refused, 254 La. 125, 222 So.2d 880 (1969); Bernstine v. City of Natchitoches, 335 So.2d 51 (La.App. 3d Cir. 1976).

Unfortunately, plaintiffs were victims of a peculiar set of coincidences. The record discloses that any discussion of firearms between plaintiffs and Hodell was made for the purpose of obtaining guns for self-protection. The security of the A&P store was a topic of indiscreet “shop-talk” by Hodell, a private security guard, during the Wednesday night meal with plaintiffs a few days before the robbery. Kyle, a victim of a previous mugging, no doubt felt, upon seeing the shotgun when he opened the door, that he himself was the victim of an armed robbery. Though subsequent events indicate that it was not necessary for the police officers to fire into the door, given the circumstances at the time and the reasonable belief that the officers were effecting the arrest of armed felons, the force employed by them was reasonable. As stated in the Official Revision Comment (b) of LSA-C.Cr.P. art. 220:

“ * * * It is neither just nor sound policy to impose a test of actual necessity upon a person who is performing a public service, and acting on the spur of the moment, in making an arrest. Yet, a requirement of reasonableness would preclude the use of clearly inappropriate force.”

Police have a right to protect themselves and under the facts of our case, the officers were justified in taking drastic measures. We are quick to point out, however, that police officers do not have unbridled discretion to use force, and that courts must be cautious not to condone unreasonable police tactics. Unprovoked attacks and use of excessive force by police officers are actionable. Myles v. Falkenstein, 317 So.2d 292 (La.App. 4th Cir. 1975).

Accordingly, for the reasons stated here-inabove, the judgment of the trial court in favor of plaintiffs and against defendants, City of New Orleans and Lt. Eugene Fields, in solido, is reversed and set aside. Judgment is now rendered dismissing plaintiffs’ suit at plaintiffs’ costs.

REVERSED AND RENDERED.

      . Polygraph tests had been administered to Hodell and to Lozier.


source: Caselaw Access Project

author: MORIAL, Judge.

license: Public Domain

text:
    FIASCONARO & FIASCONARO v. Frank C. ORLANDO, Jr.
    No. 7826.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Fiasconaro & Fiasconaro, Joseph A. Fias-conaro, Jr., New Orleans, for plaintiff-ap-pellee.
    A. Gerard Johnston, Metairie, for defendant-appellant.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff sued defendant on open account to collect $200.00 for professional legal services and advanced court costs of $50.00. The trial court rendered judgment for the plaintiff. We affirm.

Plaintiff, a partnership engaged in the practice of law, was retained by defendant to represent him in a domestic relations matter. Plaintiff acted on behalf of defendant on motions terminating alimony, reducing child support and fixing visitation rights. Defendant contests a bill submitted August 18, 1975 for $250.00 for legal services provided by plaintiff in connection with a divorce proceeding.

The August 18, 1975 bill lists three distinct items and the amount charged for each by plaintiff. Defendant was billed $150.00 for conferences and calls relating to an uncontested divorce, the preparation and filing of a divorce petition, the preparation and filing of a preliminary default, preparation of a non-military service affidavit and for the arrangement of a court appearance and the preparation of a divorce judgment. The entire divorce was originally to cost $250.00, but plaintiff deducted $100.00 from that amount because no court appearance was made.

Plaintiff charged defendant $50.00 for preparation of the community settlement which included a review of the community assets, as well as research of acts of sales, a dation en paiment and a counter letter. Plaintiff also had conferences with defendant and prepared a document setting out the partition of the community. The final item was a $50.00 charge for the deposit of court costs by plaintiff for the filing of the divorce petition.

A final divorce was not obtained because defendant refused to proceed when he found out that his wife refused to sign the community settlement agreement on his terms.

The controversy arises over defendant’s contention that plaintiff continued to make preparations necessary for the divorce in spite of his instructions to delay the proceedings until his wife’s assent to the agreement was assured. Defendant argues that these services were of no value to him. He also contends that the previous payments made to plaintiff were sufficient to compensate plaintiff for the work done.

Plaintiff points out that defendant signed the divorce petition signifying his acquiescence in the action. Plaintiff contends that defendant informed him to suspend all proceedings on the day they were to go to court and confirm the default judgment of divorce after all preparations had been made.

The issues presented on appeal are: (1) whether or not plaintiff acted in disregard of defendant’s instructions in preparing the divorce and partition; and (2) whether or not plaintiff is entitled to recover for the services listed in the August 18, 1975 statement.

The first issue is a factual one and, therefore, we are compelled to give great weight to the findings of the trial judge. See Canter v. Koehring Co., La., 283 So.2d 716 (1973).

In reviewing the evidence, we find that the testimony of defendant as to when he actually instructed plaintiff to suspend the proceedings is somewhat contradictory. Plaintiff, on the other hand, firmly stated that defendant did not instruct him to halt the proceedings until it was time to go to court and confirm the preliminary default judgment. In light of the trial court’s findings and our review of the record, we conclude that plaintiff was not instructed to suspend the preparations for the proceedings until it was time to confirm the preliminary default judgment and subsequent to plaintiff’s preparation for the action.

Plaintiff is entitled to recover the full amount demanded for the services rendered. The appointment of an attorney is a mandate revocable at the clients will. LSA-R.C.C. Article 3028. However, at the time of the revocation the attorney is entitled to compensation for services actually performed and results accomplished on a quantum meruit basis. Barranger, Barranger & Jones v. Cromp, 286 So.2d 474 (La.App. 1 Cir. 1973). This is true even where the lawyer is discharged prior to a final legal resolution of the matter. See Barranger, supra; Wright v. Fontana, 290 So.2d 449 (La.App. 2 Cir. 1974).

The value of legal services is an area coming particularly within the expertise of the trial judge. Lynch v. Burglass, 286 So.2d 170 (La.App. 4 Cir. 1973). We agree with the trial court’s conclusion that $250.00 is due for the services rendered by plaintiff. Plaintiff did not charge defendant the full amount agreed upon for a divorce due to the fact a court appearance was not made. Therefore, defendant is only being charged for services actually performed which is a proper sum on the basis of quantum meruit.

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

AFFIRMED.


author: GULOTTA, Judge.

text:
    Eileen Connolly BARRIOS v. Michael BARRIOS.
    No. 7827.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Meunier, Martin & Meunier, Donald S. Martin, New Orleans, for plaintiff-appellee.
    Grisbaum & Kleppner, Ferdinand J. Kleppner, Metairie, for defendant-appellant.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   GULOTTA, Judge.

In his appeal from an alimony award in favor of the wife, after divorce, defendant claims the evidence shows that the separation and ultimate divorce resulted from mutual fault of the parties and plaintiff is not entitled to alimony. According to defendant, his wife’s indifference, as well as his own, resulted in the parties’ occupying separate bedrooms and caused the deterioration of the marital relationship.

The plaintiff-wife filed suit for separation from bed and board on the ground of abandonment in July, 1973. Agreement was reached on alimony and child support, and it was not until September 8,1975, that defendant answered and reconvened for a divorce based on two-years voluntarily living separate and apart. After trial on the merits, the trial court granted the divorce and further found that the wife was free from fault. Alimony and child support were continued in the same amount agreed upon earlier by the parties. As pointed out by plaintiff, the husband has not alleged any fault on the part of the wife; only the husband’s general denial puts the question at issue.

We fail to find any evidence in the record supporting the husband’s claim. The testimony is undisputed that the husband had suggested he and his wife sleep in separate bedrooms and she acquiesced in the matter. This regimen had started before the birth of their child and continued until the husband abandoned the marital domicile completely. Admittedly, the suggestion of living separate and apart was acquiesced in by the wife to such an extent that she stated that she would have moved out, had he not.

Under our jurisprudence, the wife has the burden of proving freedom from fault as a prerequisite to alimony after divorce. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Adler v. Adler, 239 So.2d 494 (La.App.4th Cir. 1970), writ refused, 257 La. 168, 241 So.2d 530 (1970); Kratzberg v. Kratzberg, 286 So.2d 174 (La.App.4th Cir. 1973). In Carter v. Carter, 316 So.2d 829, 830, 831 (La.App.1st Cir. 1975), writ refused, 320 So.2d 913 (La.1975), in imposing this burden in those cases where the husband does not .allege specific instances of fault on the part of the wife, the court stated the wife’s burden “must be applied with reason and fairness” and went on to say:

“ * * * Unless the wife is informed by the husband’s answer to her petition for alimony by some specific allegation of fault on her part, she is put in the impossible position of disproving every conceivable fault which could bring about a separation between married persons. * * ”

In our case, fault on the part of the wife was neither alleged nor proved.

Undoubtedly, indifference permeated this marriage, but the wife’s acquiescence to her husband’s suggestions of sleeping in separate bedrooms and, ultimately, living separate and apart does not constitute fault on her part. Though it is true that prior to the separation the wife characterized their marital relationship as one between “friends more than . . . husband and wife” and that she would have left had not the husband done so, it is undisputed that the wife cooked meals for the husband and that he had total access to her bedroom. In Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707, 709 (1958), the Louisiana Supreme Court stated that the wife need not be “totally blameless in the marital discord” in order to be free from fault:

“ * * * For to constitute fault within the meaning of LSA-Civil Code, Article 160, the wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation rather than a justifiable or natural response to initial fault on the part of the husband. $ * * »

Indifference breeds indifference. The wife’s indifference in the instant case resulted from the husband’s indifference. Under these circumstances, a wife cannot be found to be at fault.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED


author: SCHOTT, Judge.

text:
    Gladystean Robinson, wife of/and Freddie PORTER, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 7829.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Marvin C. Grodsky, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

This case arose out of an automobile accident in which the three female plaintiffs were injured as a result of the negligence of defendant’s alleged insured, Calvin Wayne Caswell. The accident occurred in New Orleans on April 17, 1974.

Caswell was a resident of Mississippi and was the named insured in a policy of automobile liability insurance issued by defendant in Mississippi sometime prior to the accident.

On December 21, 1973, defendant mailed a cancellation notice with an effective date of cancellation of January 3, 1974, to Eugene C. Caswell, residing at the same address as Calvin Wayne Caswell. The notice explained that the check for the balances due on two policies was returned to defendant by the bank. It is the efficacy of this notice of cancellation which is at issue here. The trial judge dismissed plaintiffs’ suit holding that the cancellation was effective. We reverse.

The policy contained the following provisions for cancellation:

“The company may cancel this policy in accordance with the terms hereof by written notice, addressed to the named insured and mailed to his address last known to the company or its authorized agent stating when cancellation shall be effective.”

In order to determine whether the policy was effectively cancelled in accordance with the law we must apply the law of Mississippi where the insured resided and the contract was entered into. Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972), Gros v. Comeaux, 288 So.2d 98 (La.App. 4th Cir. 1974). Applicable Mississippi law provides as follows:

“ § 83-11-5. Notice of Cancellation.
No notice of cancellation of a policy to which section 83-11-3 applies shall be effective unless mailed or delivered by the insurer to the named insured

Although this notice was not addressed and mailed “to the named insured” as required by the policy and the law the question is whether under the facts and circumstances of this case the cancellation was effective anyway.

The evidence showed that a check signed by Mrs. Betty Caswell was mailed to defendant in November, was returned by the bank as NSF, was redeposited soon thereafter, and was again returned as NSF, prompting the defendant to mail the notice of cancellation to Eugene C. Caswell. The notice referred to two policies, Calvin’s and another and to the one NSF check issued to pay for both policies and was sent to Eugene at Calvin’s address. Although the evidence does not establish the relationship among these parties the trial judge, in his reasons for judgment, found that Eugene and Betty were Calvin’s parents. Plaintiffs concede this in their brief to this Court.

The trial judge concluded as follows: “There is no doubt about it. Calvin Cas-well had not paid any premiums on his policy since May 1973. Calvin is obviously a college graduate since he is now in the professional school of dentistry. He knows he should (must) pay premiums to have liability insurance. He knows he did not pay any premium on it since May, 1973 and that the semi-annual payment was late. The notice of cancellation was not addressed to him per se, but it did list his policy on it and it was sent to his parents’ home, where the NSF check came from. The notice of cancellation was perfectly fair and valid in every respect, except that his name was not on it. The court concludes from the evidence that Calvin Caswell had personal knowledge of the cancellation and in fact knew he had no insurance; he so informed the plaintiffs shortly after the accident.”

The evidence does not support these findings. One of the three claimants testified that she saw a physician for her injuries on April 19, April 22, and April 24, but she discontinued seeing the doctor because she was told by Calvin Caswell that he had no liability insurance. That supports the conclusion that Calvin Caswell knew he had no insurance after the accident occurred but not necessarily before the accident. None of the Caswells was called as a witness so that we can only speculate that Calvin knew before the accident that his insurance premium was not paid because his mother’s check was NSF. It is equally plausible that he thought his insurance was paid for because his mother sent a check and that his mother did not tell him the check was NSF.

Had defendant complied with the provisions of its own policy and with the law of Mississippi by sending the cancellation notice to Calvin, the named insured, there would be no place for such speculation. Thus, the very purpose for the requirement in the policy and the law was frustrated by defendant’s mistake.

Our research has disclosed Chatham v. Occidental Life Insurance Co. of California, 248 Miss. 328, 158 So.2d 735 (1963) in which the court upheld a cancellation because the testimony revealed that the insured no longer intended to pay premiums on a policy of insurance and acquiesced in the cancellation of the policy although the cancellation was wrongfully made. This case indicates that the burden of proof is on the insurance company to establish a binding cancellation even though it did not follow the law and its policy to effect cancellation. In the instant case, however, defendant did not bear the burden of proof.

Having found that the policy was not effectively cancelled and therefore in full force and effect it becomes necessary to assess quantum. In August, 1974, Calvin Wayne Caswell settled his liability with all six plaintiffs for $1,000, but plaintiffs reserved their rights to proceed against defendant for the full amount of their damages. All three plaintiffs were first treated at Charity Hospital in New Orleans and incurred expenses of $20 each. All three then saw Dr. Alvin M. Cotlar for an initial examination on April 19, and they all received microtherm treatments on April 22 and 24, 1974.

As to Gladystean Porter, on the basis of his examination in which he found paraver-tebral spasms of her back, as well as X-rays, he diagnosed cervical and lumbosacral strain. He prescribed medication and heat treatments. Mrs. Porter said that her neck problem lasted for about three months and that her back was still hurting some at the time of the trial in December, 1975. However, she received no further medical treatment after her visit to Dr. Cotlar on April 24, 1974. She incurred expenses of $105 for X-rays, $35 with Dr. Cotlar and $25.75 for prescriptions which her husband, Freddie Porter, is entitled to recover.

On the basis of his examination, Dr. Cot-lar found that Carol Warren had sustained a mild back sprain. She was pregnant at the time of the accident, and she testified that she bumped her mouth on the dashboard of the automobile and had trouble with her mouth and back for about a month after the accident. Her husband, Benfus Warren, is entitled to recover her expenses of $35 with Dr. Cotlar and $27.81 for prescriptions.

As to Gladys Bryant, based on his examination and X-rays, Dr. Cotlar diagnosed a contusion of the chest and a flexion injury of the cervical spine, for which he prescribed medication and heat treatment. She testified that she still had numbness in her neck by the time of the trial but sought no further medical treatment except for one further visit to Charity Hospital she made a couple of months after the accident. She incurred expenses of $61 for X-rays, $35 with Dr. Cotlar and $27.81 for prescriptions which her husband, Earl Bryant, is entitled to recover.

In view of the paucity of medical testimony supporting the three claims each female plaintiff is entitled to modest recovery. Judgments of $750 for Mrs. Porter, $500 for Mrs. Warren and $750 for Mrs. Bryant will adequately compensate them for general damages.

Defendant is entitled to a credit for the $1,00Q paid to plaintiffs by Calvin Wayne Caswell. The release is simply a joint acknowledgment by all six plaintiffs that Caswell has paid to them jointly the $1,000 on account of all of their claims. We have concluded that the $1,000 credit should be distributed to each claimant in the same proportion as his or her claim bears to the total of the claim, so that the $1,000 of credit is distributed as follows:

Claimant Amt. Judgment Amt. Credit Gladystcan Porter $750.00 $319.00 Freddie Porter 165.75 70.00 Carol Warren 500.00 212.00 Benfus Warren 62.81 27.00 Gladys Bryant 750.00 319.00 Earl Br^ant 123.81 53.00

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of the plaintiffs for the following amounts and against defendant, State Farm Mutual Automobile Insurance Company with legal interest from date of judicial demand until paid and for all costs of the proceedings:

Gladystean Porter $431.00 Freddie Porter 95.75 Carol Warren 288.00 Benfus warren 35.81 Gladys Bryant 431.00 Earl Bryant 70.81

There is also judgment in favor of Charity Hospital of Louisiana at New Orleans on its intervention and against defendant, State Farm Mutual Automobile Insurance Company, for $60 with interest from date of judicial demand until paid, and for costs.

REVERSED AND RENDERED.


author: BOUTALL, Judge. LEMMON, Judge,

text:
    Manuel BAILEY v. AMERICAN SUGAR REFINERY, a/k/a Amstar Corporation.
    No. 7846.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Not Considered May 5, 1977.

      Gertler & Gertler, M. H. Gertler, Richard H. Levenstein, New Orleans, for Manuel Bailey.
    Chaffe, McCall, Phillips, Toler & Sarpy, G. Phillip Shuler, III, New Orleans, for American Sugar Refinery, a/k/a Amstar Corp.
    Before BOUTALL, LEMMON and STOULIG, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment of the trial court that maintained the defendant’s exception of prematurity and dismissed plaintiff’s suit.

On June 17, 1975, plaintiff-appellant Manuel Bailey filed a “Petition for Recovery of Wages” seeking his vacation pay from his former employer, American Sugar Refinery, plus penalties and attorney’s fees for defendant’s arbitrary refusal to pay. Defendant filed exceptions of prescription, prematurity and failure to join an indispensable party. Plaintiff then amended his petition, pleading the facts of accrual of his vacation pay and alleging that he was no longer an employee and unable to use the grievance procedure provided in the collective bargaining agreement. After trial of the exceptions, judgment was rendered for the defendant, maintaining the exception of prematurity.

The vacation pay sought is provided in the terms of an agreement executed between Amstar Corporation and Amalgamated Meat Cutters and Butcher Workers of North America, Local Union No. P-1101 (hereinafter referred to as the “Union”). Article X of the Collective Bargaining Agreement provides that employees are entitled to vacation benefits provided that they worked a requisite number of hours prior to February 1st of the year the vacation benefits are requested.

The plaintiff resigned his position with the defendant because of physical disability on May 13, 1974. On or about February 1, 1975, plaintiff applied for his earned vacation pay but was denied his request. The plaintiff then filed this suit to recover the vacation pay, penalty wages and attorney’s fees, relying on authority of LSA-R.S. 23:631-640, specifically R.S. 23-631, 632, and 640. Those three statutes provide that an employer has a duty to pay a discharged or resigned employee within twenty-four hours of his discharge or resignation and that the failure to pay the employee’s wages due on request would subject an employer to penalties and attorney’s fees if the refusal or failure to pay is found to be arbitrary and capricious and without probable cause. R.S. 23:631, 632. For purposes of the statute, vacation benefits are to be treated as wages. R.S. 23:640.

Defendant’s exception of prematurity is based upon Article III of the Collective Bargaining Agreement which establishes the grievance procedures to be followed by all employees with grievances. Article 111(2) of the Collective Bargaining Agreement, in effect at the time when the request for vacation pay was denied, states:

“All grievances and complaints respecting the interpretation, application or performance of this agreement shall be negotiated as follows:
$ $ s{: ft

The collective bargaining agreement referred to herein provides the following method of resolving disputes:

“Article III
“(1) When differences or complaints arise between Management and the Local, or any employee or employees, there shall be no suspension of work on account of such disputes. Grievances must be filed within a period of thirty (30) days following the occurrence of the grievance, except where by mutual agreement, due to the importance of the grievance, the time limit is extended.
“(2) All grievances and complaints respecting the interpretation, application or performance of this agreement shall be negotiated as follows:
“(a) First, between the aggrieved employee’s Shop Steward and the Foreman of the department involved, efforts will be made to settle the grievance not later than two (2) working days after it has been presented to the Foreman.
“(b) If the grievance is not settled under the procedure provided in (a) above, it shall be immediately (and in no case later than forty-eight (48) hours after its disposition under (a) above, submitted to the Personnel Manager or his designee, after having first been reduced to writing and signed by the Shop Steward, and shall identify the grievant(s) involved. Within one (1) week after the grievance is so submitted to him the Personnel Manager or his designee shall confer with the Local Grievance Committee, and shall deliver to the chairman of such committee the written decision with respect to the grievance within two (2) days following such meeting.
“(c) If the grievance is not settled, then within two (2) weeks after the written answer of the Personnel Manager or his designee has been delivered to the Union, the grievance shall be considered and, if possible, settled in a conference between representatives of the Local, the Sugar and Allied Products Division of the International, and/or other Management representatives on the other hand.
“(d) If the grievance is not so settled, the Union may demand arbitration by notifying the Company in writing. Such demand must take place within two (2) weeks after the conclusion of the conference referred to in (c) above. The parties have, upon the execution * * *

The issue on the exception is whether the plaintiff had a duty to exhaust his remedies under the agreement before he could seek relief in the courts.

The plaintiff argues that he is not bound by the collective bargaining agreement because he was not an employee at the time demand for vacation pay was made. However, the plaintiff does assert that the right of an employee to vacation pay was created by the arbitration agreement, which places the plaintiff in a position of arguing that one part of the collective bargaining agreement is applicable to him and that other parts are not applicable to him.

The position assumed by the plaintiff is untenable. The United States Supreme Court has held that federal labor policy requires an aggrieved employee to attempt to use of established grievance procedures before seeking other modes of redress, where those procedures are made exclusive by the applicable bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). One exception to the requirement that contract remedies be exhausted is where the union has sole power under the contract to invoke higher stages of the grievance procedure and the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).

The basis of this suit is not simply a former employee suing for money earned and not paid under R.S. 23:640. The basic issue is whether the former employee is still considered an employee such that he is entitled to accrual of vacation rights under terms of the Collective Bargaining Agreement. It involves an interpretation of that agreement and a determination if the Union, representing the employees, and the Company bargained for those particular benefits. In a collective bargaining agreement, each party gives up certain rights and benefits to achieve other rights and benefits. This collective bargaining agreement in the Article entitled “Finality and Effect of the Agreement” makes the grievance procedure established in Article III exclusive. Article XXIII(3) says in part,

“. Therefore, the Company and the Union, each agrees that except as specifically provided in this Agreement, the other shall not be obligated to bargain collectively with respect to any matter.”

In consequence, we must reach the conclusion that the grievance procedure established in Article III of the Agreement is applicable. Because the plaintiff failed to plead that he had submitted his complaint through the grievance procedure and that the Union failed to act or acted in a manner that would place the plaintiff under the exception created by Vaca v. Sipes (supra), we must hold that plaintiffs suit is premature. It is a general rule of law that a party must exhaust his administrative remedy before relief can be sought in the courts, unless doing so would be vain and useless. Bagert v. Moreau, La.App., 325 So.2d 702 (1976).

Accordingly, the judgment maintaining the exception of prematurity is affirmed.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Judge,

dissenting and assigning reasons.

The issue which plaintiff attempted to raise in this suit is whether employment on February 1 is an absolute requirement for entitlement to vacation pay, inasmuch as he had worked more than 1,250 hours between February 1, 1974 and February 1, 1975, although his employment with defendant had terminated for reasons beyond his control prior to February 1, 1975.

The only issue raised by this appeal is the threshold question as to whether plaintiff can have his right to wages (or fringe benefits which are deemed to be wages, R.S. 23:640) decided by the court or must demand his individual wages through the grievance procedure. Determination of the question as to ultimate entitlement has no bearing on the threshold question as to whether plaintiff has a cause of action to institute a judicial proceeding.

Both wages and fringe benefits are rights to compensation created by the collective bargaining agreement, and both are subject to the same penalties for non-payment under R.S. 23:631 et seq. Consequently, this suit must be treated the same as a suit based on non-payment of wages for the last pay period. The threshold question should not be answered simply by reasoning that since vacation benefits are payable only because of the agreement, all disputes over vacation pay must be decided by the method provided in the agreement, unless we are also willing to hold that all disputes over wages (even those due to former employees who were terminated for reasons beyond their control) must be decided by the grievance procedure.

Plaintiff was an employee at the time he claims he earned the right to vacation pay, that is, on the day that he worked his 1,250th hour in the applicable period. If plaintiff had still been an employee on February 1 following, and the company had refused to pay his claim for vacation pay, he certainly had no cause of action under R.S. 23:631 et seq. and perhaps could be required to pursue the grievance procedure outlined in the collective bargaining agreement.

That reasoning (if valid), however, does not apply under the facts of this case, when plaintiff was no longer an employee on February 1, 1975, the day his (arguably) earned vacation pay became due and the day that his complaint for non-payment arose.

Article III of the collective bargaining agreement applies by its terms when “complaints arise between Management and . any employee”. (Emphasis supplied) Indeed, the first step in the outlined procedure is negotiation between the “aggrieved employee’s Shop Steward” and the company’s department foreman. (Emphasis supplied) The grievance procedure, by its clear terms, applies only to a person who is still an employee when the complaint arises.

In my opinion plaintiffs petition has stated a cause of action to be decided by the court.

      . Article X — Vacations
      (1) As of February 1 of each year, each employee who has worked 1250 hours in the prior 12 month period shall be entitled to a vacation with pay according to the following table:
      ^ S(S * !(! * Sfi

      . The proper exception in this case was one of no cause of action, rather than prematurity, in that the decision of the trial court and the majority of this court tells plaintiff he has no cause of action to institute judicial proceedings under the facts stated in the petition.

      . The interpretation of Article X that plaintiff probably will ultimately urge is that February 1 delineates the 12-month period for calculating hours worked and states the date that vacation benefits (if earned during that period) become payable, but that the article does not specifically require continued employment through that date.
      Although this argument addresses itself strictly to the merits, plaintiff must contend that vacation benefits were earned compensation for services already performed by working 1,250 hours during the applicable period, especially since he would have continued in employment except for reasons beyond his control. Compare Morse v. J. Ray McDermott & Co., 330 So.2d 411 (La.App. 4th Cir. 1976), reversed by the Supreme Court and now pending on rehearing granted. Although commenting on the merits, I make this observation in response to the statement in the majority opinion that the “basis of this suit is not simply a former employee suing for money earned and not paid” under R.S. 23:631 et seq. This suit is most certainly based on compensation earned and not paid, and the validity of that basis must be determined on the merits.

        . Talbot v. National Super Markets of La., 372 F.Supp. 1050 (E.D.La.1974), cited by defendant, held simply that a complaint under R.S. 23:631 by “several employees and former employees” was removable to federal court. The court observed that the state statutory remedies could be pursued in federal court, unless the remedies are foreclosed by contractual provisions (which were not before the court on the motion to remand).


author: LEMMON, Judge.

text:
    Wade H. STEWART, Individually and as Administrator of the Estate of his minor son, Wade H. Stewart, Jr. v. ZURICH INSURANCE COMPANY.
    No. 7847.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Sidney D. Torres, III and George N. Bis-chof, Jr., Chalmette, for plaintiff-appellee.
    Montgomery, Barnett, Brown & Read, John Phelps Hammond and Kenneth V. Faherty, New Orleans, for defendant and third party plaintiff.
    Dillon & Williams, David M. Cambre, New Orleans, for defendant in reconvention and for third-party defendant, appellee.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   LEMMON, Judge.

This appeal by Harold Anderson’s homeowner’s insurer questions Anderson’s liability for an injury sustained by five-year old Wade Stewart, Jr. in a fall from a children’s climbing set in Anderson’s yard. The following exhibit shows the set which Anderson purchased from a department store:

At the time of the accident the Stewarts were living next door to the Andersons. Wade and his brother were playing on their carport and wandered over to play with Anderson’s son. Anderson gave the Stewart children permission to play in the yard where the set was located, and he left open the sliding glass door to the back yard. The children had been in the yard 20 to 30 minutes when Wade slipped and fell while descending the ladder in a proper manner. Anderson testified without contradiction that he checked on the children twice during this period of time.

Plaintiff (Wade’s father as administrator of his estate) argues as a basis for liability that Anderson, aware of Wade’s presence in his yard, should have determined Wade’s ability to climb before allowing him to play in proximity to the set, or should have in some manner instructed and/or closely supervised the child in the use of the apparatus. Plaintiff emphasizes in this respect that Wade’s mother had instructed him not to climb on the set, although he admits that Wade had previously climbed ladders on slide sets.

Tort liability is based on the existence of a duty and the violation of that duty which results in damages. There was no evidence whatsoever that the equipment was defective in any manner. The visceral issue, therefore, in determining the existence of any duty by Anderson toward Wade depends on a determination of whether the apparatus inherently constituted such an unreasonable risk of danger as to impose a duty to take special precautions when a normal five-year old child is allowed access to the apparatus.

Mrs. Mary Ann Bendler, the head of Newcomb College Nursery School who had a master’s degree in early childhood education and ten years of experience in the field, was presented to testify in an expert capacity as to appropriateness of this type of play equipment for five-year old children and the supervision and instruction necessary for its use. Her testimony was not allowed by the trial judge. We deem this ruling erroneous, but since the evidence is in the record by means of a proffer and counsel agreed at oral argument that the record was complete if this court determined the testimony should be included, we proceed to consider this testimony in reviewing the record.

Mrs. Bendler opined that this particular playground apparatus was satisfactory and appropriate for use by children as young as three years and was certainly safe and proper for five-year old children. She further testified that children of this age group require only general supervision in playing on this type of equipment so as to prevent such dangerous activities as jostling for turns or climbing while holding an object in the hand, or to be available if fear develops. As to simple climbing, she observed that five-year olds are stable and naturally good climbers, and she stated that the set was within the capability of a normal child of that age to use safely without the need of special instructions or extraordinary supervision.

The record shows that Wade appeared to be a normal five-year old child and in fact was older and bigger than Anderson’s child. From our consideration of the expert testimony and the entire record, we find no reasonable basis on which to conclude that the playground apparatus in question presented such an unreasonable risk as to impose any special duty on Anderson either to render special instructions or to determine whether every apparently normal five-year old child using the apparatus was specially skilled in climbing or other use of such equipment. Furthermore, from a causation standpoint, neither failure to determine Wade’s skill nor failure to instruct him in climbing was a cause-in-fact of this accident, since Wade had climbed ladders before and was in fact descending properly when he slipped.

As to supervision, while special circumstances (not shown in this record) may have required imposition of a greater duty of supervision, the circumstances that are shown did not reasonably require more than the general supervision that Anderson was providing. Moreover, since Wade fell while he was descending the ladder in a proper manner, not even Anderson’s presence within a few feet of the set would have prevented this accident, and thus Anderson’s mere absence from the yard was not the cause of the accident.

For these reasons, the judgment of the trial court is reversed, and it is now ordered that the plaintiff’s suit be dismissed. Each party is to bear his own costs.

REVERSED AND RENDERED.


text:
    OLYMPIA COMPANY, INC. and Olympia Roofing Co. Inc. v. GERVAIS F. FAVROT COMPANY, INC. v. CLEARVIEW VETERANS, INC.
    No. 7859.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      William J. Manion, Metairie, for plaintiffs-appellants, Olympia Co., Inc. and Olympia Roofing Co. Inc.
    Baldwin, Haspel, Molony, Rainold & Meyer, Robert R. Rainold, New Orleans, for defendant-appellee, Gervais F. Favrot Co., Inc.
    Lemle, Kelleher, Kohlmeyer & Matthews, C. Murphy Moss, Jr., Stanley A. Millan, New Orleans, for defendant-appellee, Clear-view Veterans, Inc.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   GULOTTA, Judge.

Plaintiff, a subcontractor, appeals a judgment maintaining an exception of no cause of action filed by an owner, Clearview Veterans, Inc., in this claim against the owner and the general contractor, Gervais F. Fav-rot, for nonpayment of a balance due on a contract between the general contractor and the subcontractor for construction of a roof. The contract price was $131,000.00; the principal amount claimed by Olympia is $15,289.63, representing the balance withheld by Favrot.

The basis upon which the trial court dismissed plaintiff’s petition against the owner is that no privity of contract existed between the subcontractor-Olympia and the owner-Clearview.

Plaintiff alleges that the owner engaged the general contractor to construct the Clearview Shopping Center. Favrot subcontracted the roofing work to Olympia. Plaintiff alleges further that the contract price has been paid except for the balance retained by Favrot. In a supplemental petition, plaintiff alleges that the building had been accepted by Clearview on November 5, 1969; that the roof was damaged by a hailstorm which occurred on March 18, 1972; and that full indemnification was made by the insurer to the owner. According to the petition, $173,657.00 was received by Clearview from its insurer, and only $123,347.00 was paid to a third party roofer who completed the repairs. Olympia claims receipt of the funds from the insurer and payment to the third party roofer by Clear-view, without payment to plaintiff, constitutes an unlawful conversion of the funds and unjust enrichment to the owner. No liens were filed by the subcontractor-plaintiff or, if liens were in fact filed, they were released.

In making an attempt to circumvent the privity-of-contract theory, plaintiff seeks to invoke concepts of: 1) contract for the benefit of a third party; 2) unjust enrichment; 3) tort, conversion and trover; and, 4) quantum meruit.

Having examined the allegations of the petition and the supplemental and amended petition, we conclude, as did the trial judge, that Olympia’s suit is one solely for the breach of the contract between it and the general contractor. The trial judge properly dismissed plaintiff’s petition on the ground that no privity of contract existed between the owner and the subcontractor.

In Lumber Products, Inc. v. Hiriart, 255 So.2d 783 (La.App. 4th Cir. 1971), relied upon by the trial judge, we dismissed a reconventional demand by an owner against a subcontractor for his defective workmanship. We concluded that the owner’s action was one in contract arising from the subcontract; that the owner was not privy to the subcontract; and, therefore, that this action could not be maintained against the subcontractor. The owner’s only remedy was against the general contractor with whom she had privity of contract. Similarly, in Pittman Construction Company v. Housing Authority of New Orleans, 169 So.2d 122 (La.App. 4th Cir. 1964), writs refused, 247 La. 343, 344, 345, 346, 347, 348, 170 So.2d 865, 866 (1965), we affirmed the trial court’s dismissal of a subcontractor’s claims against the owner. See also Chemical Cleaning, Inc. v. Brindell-Bruno, Inc., 186 So.2d 389 (La.App. 4th Cir. 1966) and State ex rel. Guste v. Simoni, Heck and Associates, 297 So.2d 918 (La.App. 1st Cir. 1974).

Plaintiff claims the following provision of the contract between Favrot and Clearview which provides:

“ . . . the intent of the insurance is to cover, completely, the cost of replacement of any work under this contract which is lost or damaged before final acceptance of the contract work by the owner.” (emphasis ours)

constitutes a stipulation for the benefit of a third party, i. e., Olympia. As a third party beneficiary, Olympia contends it is entitled to receive from Clearview proceeds paid to the owner by the windstorm insurer for damages occasioned by the hailstorm.

We find no merit to this argument. The insurance provision clearly states “before final acceptance of the contract work by the owner”. The building was accepted on November 5, 1969. The hailstorm occurred on March 18, 1972. Moreover, Clearview obtained this insurance to protect itself from bearing the cost of repairs occasioned by the hailstorm. The insurance was obtained for Clearview’s benefit, not Olympia’s benefit. Accordingly, we conclude that the insurance contract purchased by Clearview was not a contract for the benefit of a third party, i. e., Olympia.

We reject also plaintiff’s further claim that Clearview has been unjustly enriched by receiving proceeds from the windstorm insurer in excess of the damage caused by the hailstorm. Any claim for excessive payment is between Clearview and its insurer, and not Olympia. One of the requirements of recovery under unjust enrichment is the existence of a connection between the enrichment and the impoverishment. See Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); V-8 Taxi Cab Service, Inc. v. Hayes, 322 So.2d 442 (La.App. 4th Cir. 1975). No connection exists between the defendant-owner and plaintiff-subcontractor in the instant case.

Olympia alleges in its petition and urges on appeal that Clearview’s removal of the damaged roof following the hailstorm and use of the insurance proceeds in paying a third-party contractor to apply a new roof without having paid Olympia’s demand for the retainage amounts to a tortious conversion of the funds by Clearview. We find no merit to this argument. We reiterate that plaintiff’s pleadings allege the damage occurred to the roof after the building had been accepted. Clearview owned the building and rightfully received the insurance proceeds. No action lies under LSA-C.C. art. 2315. Even assuming, arguendo, that a tort occurred as alleged in 1972, the petition was filed on January 20, 1976, after prescription had tolled. LSA-C.C. art. 3536.

Finally, we reject Olympia’s claim for relief on a theory of quantum meruit. If plaintiff is entitled to recovery, relief can be awarded against the contractor based on a breach-of-contract theory. Where a party seeks relief based on the existence of a contract, relief under quantum meruit is not available. See Dalgarn v. New Orleans Land Co., 162 La. 891, 111 So. 271 (1927); Mid-State Tile Company v. Chaudoir, 77 So.2d 552 (La.App. 2d Cir. 1955); Oldham v. Jones, 136 So.2d 310 (La.App. 2d Cir. 1961).

Accordingly, the judgment of the trial court maintaining Clearview Veterans, Inc.’s exception of no cause of action and dismissing plaintiff’s suit as against Clear-view is affirmed.

AFFIRMED.


text:
    U. S. MACHINE AND EQUIPMENT COMPANY v. KERSCHNER AIR CONDITIONING AND HEATING COMPANY, INC.
    No. 7870.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Dodge, Friend, Wilson & Spedale, Elmer G. Gibbons, III, New Orleans, for plaintiff-appellant.
    Walter R. Fitzpatrick, Jr., New Orleans, for defendant-appellee.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   LEMMON, Judge.

This is an appeal from the dismissal of plaintiff’s suit for the reason stated in the judgment as follows: “After the court having had the above named suit on the docket for the fourth time and the plaintiff being absent, the court dismissed the suit of the plaintiff . . ..” The judgment also stated that plaintiff’s attorney was present. The record contains no minute entry or note of evidence as to the circumstances surrounding the dismissal. However, the record does show that plaintiff set the case for trial four times and obtained continuances on the three earlier settings, and that no requests for subpoenas were filed for any of trial dates fixed.

In brief and in argument before this court plaintiff’s attorney relates the following version of events leading up to the dismissal: The third continuance was necessary when C. B. Knight, manager of Raben-horst Funeral Home, became unable to appear on the scheduled trial date. The suit involved an oral agreement between plaintiff and defendant relating to removal from the funeral home of an air conditioning unit and generator which defendant had purchased, and Knight was allegedly present when the agreement was made. On the night before the fourth scheduled date counsel received a telephone call from Frank Darden, plaintiff’s officer, informing him that Knight again would be unavailable. Counsel stated he would attempt to obtain another continuance, but instructed Darden to be ready to drive from Baton Rouge on short notice in the event that it was necessary to proceed without Knight. Counsel was unsuccessful in reaching defendant’s lawyer until the next morning, at which time defendant’s lawyer opposed the continuance. In a subsequent conference in chambers the trial judge stated he would not grant a continuance, at which time counsel indicated he would proceed to trial without Knight but would need a two-hour delay so that Darden could drive from Baton Rouge. The trial judge consented to the delay and took the bench to attend to other matters. While counsel was in chambers telephoning Darden, he was sent a message that the ease had been dismissed. When counsel entered the courtroom, the trial judge confirmed the fact that the case had been dismissed.

In support of his request for appellate review, counsel should have taken some steps at some time to get into the record the facts upon which he relied. Nevertheless, because complaints of arbitrariness of a trial judge are routinely considered by this court in applications for supervisory writs based only on counsel’s verified statement of facts (which could give rise to severe consequences if untrue), and because we have concluded the judgment of dismissal was proper under the facts asserted by plaintiff, we prefer to dispose of the matter on the merits rather than on the basis of the record deficiency.

As to the denial of the requested continuance, plaintiff had previously been granted three continuances, the defendant was present and ready to proceed, and no subpoena had been issued for plaintiff’s material witness (Knight) whose unavailability precipitated the request. Under these circumstances we find no abuse of discretion in the denial.

Plaintiff’s request for a two-hour delay to obtain Darden’s presence essentially was a request for a continuance for a shorter period of time. There is no indication why Darden was not present, and if the trial judge had initially refused the request for a two-hour continuance, we would not have considered such action an abuse of discretion under the circumstances. By the same token, we conclude that the trial judge did not abuse his discretion when, after ordering a two-hour delay, he recalled and vacated that order before anyone took detrimental action in reliance on the order. While plaintiff asserts that defendant did not object to the short delay, the trial judge is the one who must control his docket, and the circumstances did not compel the granting of a two-hour continuance even if unopposed.

Finally, plaintiff’s counsel argues that he was not afforded an opportunity to proceed without Knight and Darden (although he does not contend he had other witnesses present with which he could begin the trial). Citing C.C.P. art. 1672, counsel argues that his appearance constituted an appear-anee by plaintiff within the contemplation of the article and thus prevented dismissal under the article.

C.C.P. art. 1672 simply mandates dismissal upon motion when the plaintiff has made no appearance, personally or through counsel. While arguably the article could be interpreted conversely to prohibit dismissal when the plaintiff does appear, such an argument emasculates C.C.P. art. 1601’s implicit authority to deny a continuance if no good ground exists and militates against the inherent power of a trial judge to take whatever reasonable actions are necessary to maintain control of his docket. Indeed, a trial judge’s authority to deny a request for a continuance would be rendered meaningless if an attorney could appear without his client or other witnesses on the date fixed for trial, present an unfounded request for continuance and, after denial of the request, successfully oppose a dismissal because of his mere appearance. See Lewis v. New York Fire & Marine Underwriters, 238 So.2d 743 (La.App. 4th Cir. 1970). The more reasonable approach is that when a trial judge reasonably exercises his discretion in denying a continuance, mere appearance of plaintiff’s counsel, unaccompanied by a readiness to proceed to trial if required to do so, does not prevent dismissal of the action. Indeed, the trial judge in the present case would have acted with complete inconsistence if, after denying the continuance, he would have refused to dismiss the case and thus effectively granted a continuance.

We distinguish Maxie v. Hartford Accident & Indem. Co., 212 So.2d 165 (La.App. 3rd Cir. 1968), which reversed a dismissal of the plaintiff’s suit, holding that appearance through counsel constituted an appearance under C.C.P. art. 1672. The court there quoted the article’s indirect source (Code of Practice art. 536), which applied when “the plaintiff does not appear, either in person or by attorney, to plead Ms cause . . Presumably in the Maxie case, plaintiff’s attorney was ready to proceed to trial without his client, and defendant (who moved for dismissal) apparently had no objection to this procedure. In the present case there is no indication that plaintiff’s counsel was ready to proceed to trial without either the material witness or his client.

We therefore conclude that the mere appearance of plaintiff’s counsel, without witnesses and obviously unable to proceed in the event of denial of the requested continuance, does not preclude dismissal of the action.

Defendant answered the appeal, seeking damages for a frivolous appeal. Plaintiff was reasonable in requesting, either by appeal or by application for supervisory writs, a determination as to whether the trial judge abused his discretion in denying the continuance and dismissing the matter. We cannot say that plaintiff in taking this appeal was insincere or did so solely for the purpose of delay.

The judgment is affirmed.

AFFIRMED.

      . Many avenues were available such as a note of evidence by counsel at the time of the dismissal, a request for a narrative of facts by the trial judge, a motion for new trial, etc.

      . C.C.P. art. 1672 provides in part:
      “A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial.”

      . Arguably, a plaintiff’s counsel could appear with other witnesses and be ready to proceed, having scheduled plaintiff’s appearance for later in the trial. These facts, however, are not asserted in this case.


author: BOUTALL, Judge.

text:
    Succession of Mary Vaccaro, widow of Salvador D’ANTONI.
    No. 7873.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, William H. Cook, Jr., New Orleans, for Helen D’Antoni Cannon, opponent-appellant.

      Pilié, Pilié & Landry, M. Arnaud Pilié, New Orleans, for succession of Mary Vacca-ro, widow of Salvador D’Antoni, defendant-appellee.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

One of the heirs of this succession, Helen D’Antoni Cannon, opposed the payment of a claim for partial attorney’s fees by the Succession Attorney listed in the Seventh Tableau of Distribution. From a judgment awarding attorney’s fees of $10,000 she takes this appeal contending the amount is excessive and that it be reduced to reflect reasonable compensation for proven services rendered. On appeal, she also contests an award of expert witness fees in connection with that hearing.

The succession has been under administration for several years, and in prior Tableaus of Distribution, the attorney had been awarded partial fees of $5,000 and $5,000, which, when added to the $10,000 now awarded, would total $20,000. When the attorney agreed to handle the succession, the parties did not agree on a specific fee, and it is presumed in law that the parties intended payment of a reasonable fee. In the case of Succession of Gilmore, La.App. 4th Cir. 1970, 239 So.2d 462 at page 463 we said:

“[1] The amount allowed as attorney’s fees in the administration of a succession depends upon the particular or peculiar facts and circumstances of each case. (Citations omitted)
“[2] Applicable to all cases is the rule that in estimating the value of the attorney’s services consideration is given to the responsibility incurred, the extent and character of the work performed, the importance of the questions presented, the amount involved, the success attained and the legal knowledge, attainments and skill of counsel.” (Citations omitted.)

In this case, the attorney has skillfully handled the administration of a rather large estate involving a large amount of his time and calling for exercise of particular expertise. The estate, as shown in the descriptive list, at the time of death had a value $375,630.26. The decedents’ Will required a collation of all prior gifts to the children and grandchildren in order to determine the amount due each heir. The attorneys were required to prepare a schedule entitled Distribution of Estate by Will showing gifts made from 1951 to the date of death which totaled some $1,424,102.00, which sum was used to determine equal shares of the heirs. The attorney prepared the Federal Estate tax return and the annual fiduciary returns. These matters were complicated because of the inter-relationship of some corporations owned by the decedent which raised questions of allocations of assets and taxes. Additionally the attorney represented the succession in all of the legal proceedings, some of which included oppositions filed by the appellant. The attorney who handled these succession matters, Louis A. Pilié, did not keep an itemized account of the hours actually spent in each of these individual endeavors, but it is apparent that the work consumed an enormous amount of time, with particular attention to details. We see no necessity to recount them here. In support of a portion of the time and expertise required in the various accounting services inter-related with the legal questions presented, Mr. Harry J. Williams, Jr., a Certified Public Accountant, was produced as an expert witness. He substantiated the arduous labors involved from an accounting and tax standpoint and stated that a fee for such services alone would amount in the range from $16,-000 to $21,000. The Executor, a business man of great experience, testified that he relied to a large extent upon the advice of Mr. Pilié in handling these matters, that they were handled properly, and that he not only approved of the fee charged but thought it somewhat low. The trial judge after a consideration of all of the evidence in his Reasons for Judgment authorized payment of the partial fee of $10,000 remarking that he considered it to be on "the low side.

In assessing such fees, the trial judge is vested with much discretion in making such an award as is provided in Article 1934 of the Louisiana Civil Code, Succession of Butler, 294 So.2d 512 (La. 1974). The record in this case supports the findings of the trial judge, and we agree with his award.

The other issue before us is the award of $500.00 as expert witness fee to the Certified Public Accountant. The evidence shows that this witness spent a total of 8 hours to review the records presented to him in order to be prepared to testify. His testimony was relevant because the matters about which he testified involved a complex accounting-legal situation. We consider that the trial judge acted within his discretion in setting a fee of $500 and we find no error.

For the reasons set forth above, the judgment is affirmed.

AFFIRMED.


text:
    Anthony LALA v. SCHOEN LIFE INSURANCE COMPANY, INC.
    No. 7881.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Windhorst, Heisler, De Laup & Wysocki, Jerome M. Volk, Jr., New Orleans, for plaintiff-appellant.
    Phillip S. Brooks, New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   Plaintiff has appealed from a summary judgment dismissing his suit for damages under an insurance policy issued by the defendant.

Plaintiff alleged in his petition that on April 19, 1974, he suffered a back injury and “since approximately May, 1974, [he] has been continuously disabled and has been under the care and supervision of licensed physicians and has been hospitalized . ”

In its answer, defendant admitted that there was an insurance policy covering plaintiff for $30 per day while plaintiff was confined to a hospital, but it denied payment based upon the following allegations:

“I.
That if as alleged the defendant was injured on April 19th, 1974, and was not confined unto the hospital until October 4th, 1974, he is not covered under the capitioned policy. In that under the exceptions to the policy, number 2 states, “The daily hospital benefit is not payable with respect to any hospital confinement which commences more than thirty (30) days after the bodily injury from which it results.”
“II.
Defendant further avers that on information and belief the named insured as above stated was not admitted into a hospital until October 4th, 1974, and therefore is excluded under the policy.”

Defendant moved for summary judgment and attached as an exhibit to its motion a specimen copy of its “general accident and income replacement policy.” It is not certified and no affidavit was filed. Plaintiff filed no counter-availing affidavit but did file a memorandum annexed to which are uncertified, unsworn copies of accident and medical reports.

LSA-C.C.P. Art. 966 prescribes that a summary judgment shall be rendered “if the pleadings, depositions, and admissions on file, together with the affidavit, if any,” support the motion. Art. 967 states that “sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

In Continental Casualty Co. v. McClure, 313 So.2d 260 (La.App. 4th Cir. 1975) this court declined to consider in passing on a motion for summary judgment written statements which were not in affidavit form or in any manner sworn to or verified by the parties furnishing the statements. The court held that such “unsworn and unverified documents were not of sufficient evidentiary quality as to be given weight in determining whether or not there is a genuine issue of material fact.”

We have concluded that this record does not support a summary judgment. The fact that the insurance policy specimen is uncertified standing alone is hot necessarily fatal to the judgment, Nemeroff v. Dolphin Swimming Pool Co., Inc., 306 So.2d 94 (La.App. 4th Cir. 1974); 10 Federal Practice and Procedure, Wright and Miller § 2722, p. 486, but the other evidence tending to show the date of plaintiff’s hospitalization is insufficient since it /¿an be gleaned only from the copies of the report annexed to plaintiff’s memorandum. Accordingly, the judgment appealed from is reversed and set aside, and the case is remanded to the District Court for further proceedings.

REVERSED AND REMANDED.


author: GULOTTA, Judge. SCHOTT, Judge,

text:
    FARIS, ELLIS, CUTRONE, GILMORE & LAUTENSCHLAEGER v. JOBOB TOWING, INC.
    No. 7885.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Greenberg & Dallam, Alan James Bou-dreaux, Gretna, for plaintiff-appellee,
    whitei Fray & white> wmiam j_ white) Jr ¡ Robert H Frayj Gretna, for defendant-appellant
    Before GULOTTA, SCHOTT and MORI-jj
   GULOTTA, Judge.

Defendant appeals from a judgment for attorney’s fees for professional services rendered by plaintiff to defendant in connection with maritime litigation.

Jobob carried liability insurance with Employers Commercial Union Insurance Company which contained a $5,000.00 deductible clause. The maritime claim against Jobob and its insurer was for a sum well in excess of the deductible amount. In a settlement of the claim, Jobob contributed the sum of $3,000.00. Subsequent to the compromise, plaintiff billed defendant the sum of $1,568.00 for attorney’s fees. Defendant refused to pay the fees and this suit followed.

Defendant seeks to be exonerated from the payment of the fees on the ground that the insurer must bear the cost because it, not defendant, employed plaintiff.

In written reasons for judgment, the trial judge concluded that the insurance contract between Jobob and Employers Commercial confers upon the insurer the authority to name the attorney who will represent the assured in defense of the litigation. In this regard, he cited the following clause in the policy:

“This Company shall have the option of naming the attorneys who shall represent the assured in the prosecution or defense of any litigation or negotiations between the assured and third parties concerning any claim, loss or interest covered by this policy, and this Company shall have the direction of such litigation or negotiations. If the assured shall fail or refuse to settle any claim as authorized by the Company, the liability of the Company to the assured shall be limited to the amount for which settlement could have been made.”

Because the sum of the amount of Jobob’s contribution toward the settlement and the amount of attorney’s fees did not exceed the $5,000.00 deductible amount in the insurance contract, the trial judge reasoned that Jobob was responsible for the payment of the attorney’s fees. In this connection, he relied on another clause of the insurance contract:

“The sum of $5,000.00 shall be deducted from the total amount of any or all claims (including claims for sue and labor, collision liability, general average and salvage charges) resulting from any one accident. * * * ”

According to the trial judge, “the total amount of any or all claims” in the above quoted section includes not only the third party’s claim for damages but also an insurer’s claim for attorney’s fees for providing representation of the insured growing out of the liability claim covered by the contract of marine insurance.

Defendant contends, on appeal: 1) that no privity of contract existed between Jo-bob and plaintiff; and, 2) that the policy of insurance does not contain any provisions which make the insured responsible for payment of attorney’s fees. According to defendant, the $5,000.00 deductible clause applies only to the liability claims brought by third parties against defendant and does not apply to the fees of attorneys employed by the insurer in defense of those claims.

Clearly, no privity of contract exists between plaintiff and defendant. Although the policy, by its terms, confers upon the insurer the right to name the attorneys who shall represent the insured, this provision is silent on the payment of attorney’s fees. It is clear that the purpose of the insurer’s option to name the attorneys is to permit the insurance company to obtain counsel of its own choosing to represent not only its interests, but, the interests of the insured in order to assure that any defenses raised by the insured are not in conflict with the insurer’s interests.

We do not agree with the trial court’s interpretation that the provision of the policy stating, “The sum of $5,000.00 shall be deducted from the total amount of any or all claims . . . ” includes claims for attorney’s fees in addition to claims made by third parties for damages asserted against the insured. Indeed, we reach an opposite conclusion and do not interpret the phrase “any or all claims” to include a claim for attorney’s fees growing out of representation of the named insured. Since we and the trial judge differ on the interpretation of this provision, it is safe to conclude the provision, at best, is ambiguous.

The trial judge, in interpreting the policy to mean that the deductible clause included attorney’s fees, relied, to some extent, on the testimony of Oscar A. Paysse, a retired insurance broker and adjuster, regarding usage and custom in the marine insurance field. Irrespective of the testimony of this expert who stated that the deductible clause in marine insurance contracts includes attorney’s fees, we are influenced and persuaded to reach a different result. In this connection, we rely on the settled jurisprudential rule that ambiguities in insurance contracts must be interpreted in favor of the insured and against the insurer. See Simon v. Switzerland General Insurance Co., 238 So.2d 257 (La.App.3d Cir. 1970), writ refused, 256 La. 897, 240 So.2d 232 (1970), where ambiguity in the term “Coastal Waters” as used in a marine insurance contract was interpreted favorably to the insured. See also: Jennings v. Louisiana and Southern Life Insurance Company, 290 So.2d 811 (La.1974); Schonberg v. New York Life Insurance Company, 235 La. 461, 104 So.2d 171 (1958); Albritton v. Fireman's Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1953).

Applying the jurisprudence, we are led to the conclusion that the $5,000.00 deductible clause does not include a claim for attorney’s fees incurred in representation of the insured where a claim is brought against the insured and the attorney is employed by the insurer. We are further persuaded by the fact that it would have been a relatively simple matter for the insurer to include in the policy a provision that the deductible amount was to be applied to claims “including fees of the attorneys selected by the insurer to represent the insured”. The inclusion of this suggested phrase, or a similar one, would have erased any ambiguity concerning the payment of attorney’s fees. In its absence, however, the policy must be interpreted against the insurer, and plaintiff is not entitled to recovery against Jobob. See LSA-C.C. art. 1958.

Accordingly, the judgment of the trial court is reversed and set aside. It is now ordered that plaintiff’s suit against Jobob Towing, Inc., be dismissed at plaintiff’s costs.

REVERSED AND RENDERED.

SCHOTT, J., concurred in result and filed opinion.

SCHOTT, Judge,

concurring in the result:

I respectfully disagree with my colleagues to the effect that no privity of contract exists between plaintiff and defendant. I submit that the contract of employment was made in defendant’s behalf by the insurer pursuant to a mandate which was contained in the insurance policy. Under that mandate defendant gave to the insurer the option of naming its attorneys, which option it exercised. LSA-C.C. Art. 2985 defines a mandate as “an act by which one person [in this case defendant] gives power to another [in this case the insurer] to transact for him and in his name, one or several affairs [in this ease the employment of plaintiff as defendant’s attorney].”

In holding, however, that there is privity between plaintiff and defendant it becomes necessary to determine whether the attorney’s fees incurred by the insurer and defendant with the plaintiff are to be included in the $5,000 deductible. This involves an interpretation of the following provision of the contract of insurance:

“The sum of $5,000.00 shall be deducted from the total amount of any or all claims (including claims for sue and labor, collision liability, general average and salvage charges) resulting from any one accident. This deduction does not apply to claims for total or constructive total loss. For the purpose of this clause each accident shall be treated separately, but it is agreed that a sequence of damages arising from the same accident shall be treated as due to that accident. (Emphasis supplied)

In my opinion the word “claims” is not ambiguous and cannot be construed to mean the fees now claimed by plaintiff. This follows from a reading of the policy as a whole.

The policy contemplates claims by defendant for damage to or loss of its vessels as well as claims by other vessels or their owners for damage or loss resulting from collisions with defendant’s vessels. With respect to this coverage the policy provides:

“Warranted that in case of any casualty or loss which may result in a claim under this policy the assured shall give this Company prompt notice thereof and reasonable opportunity to be represented on a survey of the damage, each party to name a surveyor, which two surveyors shall proceed to draw specifications as to the extent of the damage and the work required to make the damage good
(Emphasis supplied)

The policy also provides “sue and labor” coverage with respect to the insured’s vessels as follows:

“In case of any loss or misfortune it shall be lawful and necessary for the assured, their factors, servants and assigns, to sue, labor and travel for, in and about the defense, safeguard and recovery of the vessel named herein, or any part thereof, without prejudice to this insurance to the charges whereof this Company will contribute as hereinafter provided. It is agreed that the acts of the assured or this Company, or their agents, in recovering, saving and preserving the property insured in case of disaster shall not be considered a waiver or an acceptance of an abandonment nor as affirming or denying any liability under this policy; but such acts shall be considered as done for the benefit of all concerned, and without prejudice to the rights of either party
“In the event of expenditure under the sue and labor clause, this Company will pay the proportion of such expenses that the amount insured hereunder bears to the agreed valuation of the vessel named herein, or that the amount insured hereunder, less loss and/or damage payable under this policy, bears to the actual value of the salved vessel, whichever proportion shall be less.” (Emphasis supplied)

When these provisions are analyzed it can be seen that the word “claim” in the second quoted section of the policy applies to claims by either the insured with respect to its vessel or by a third party whose vessel has been damaged by collision. There is no way that the word “claim” in this section of the policy can be construed to mean attorney’s fees which are incurred in subsequent litigation, negotiation or settlement.

In the provisions applicable to the sue and labor clause, it can be seen that the policy contemplates that the insured may after a casualty take action on its own with respect to defense as well as safeguard and recovery of the vessel without prejudice “to the charges” which the company will contribute. This word “charges” obviously includes such items as attorney’s fees and expenses of preservation of the vessel and stands in contrast to the word “claims” used in the paragraph under consideration in this case and the word “claim” in the second quoted paragraph of the policy.

Also, the use of the words “expenditure” and “expenses” in connection with the sue and labor clause are again in sharp contrast to the word “claims.”

I have concluded that the attorney’s fees being sought by plaintiff in this suit were not understood by the insurer or the defendant insured to be among the “claims” comprising the $5,000 deductible, so that plaintiff must look to the insurer for payment of its bill for services rendered.

It is significant that the mandate given by defendant to the insurer providing the latter with the option of naming the attorneys confers on the insurer the direction of all litigation and negotiations being carried on by the attorneys. Under the theory advanced by plaintiff the insured could find himself in the unhappy position of being defended against a frivolous claim at his expense by attorneys named and directed by the insurer. Under this scheme the insured’s deductible could be easily exhausted in the defense of such a frivolous claim with no practical recourse available to the insured. The only reasonable interpretation of the clause in question is that the parties intended to confer on the insurer the right to select the attorneys and direct them with the understanding that the attorney’s fees would be payable by the insurer and not come out of the insured’s deductible. The attorney’s fees are in the same category as other expenses which the insurer may incur in the course of investigating and adjusting a claim before it is referred to an attorney. Nothing in the policy suggests that in-house expenses can be passed on to the insured. On the contrary, this must be a part of the service the insured paid for with his premium. It would follow that attorney’s fees would likewise be a part of the benefits purchased by the insured and his deductible would include only his own contribution in payment of claims made by himself for damage to or loss of his own vessel or claims by third parties for damage to or loss of their vessels.

At the time the policy was written the parties thereto surely did not contemplate that attorney’s fees which might be incurred in connection with a claim under the policy would themselves become “claims.” In the normal course of events attorney’s fees are paid routinely just as other bills for goods or services. When one purchases goods from a merchant on credit he does not regard the liability as a claim unless he resists payment and the bill becomes an adverse claim against him. When the policy was written the parties meant claims under that policy would be subject to the deductible, not that bills incurred in administering the coverage which later became adverse claims would be included.

      . Ordinarily, any claim for attorney’s fees would be asserted by the attorney against the client who entered into the employment agreement and if the client (in this case, the insurer) claims entitlement for reimbursement for payment of these fees against a third party (in this case, the insured), reimbursement may be sought by a third party demand.

      . However, the trial judge, in oral reasons, restricted the purpose of this testimony. He stated, during the course of the trial, when this expert’s testimony was offered:
      “I am going to permit this witness to testify purely as to what the custom of the trade is, and I think that is the only purpose of this witness’ testimony. I think what is involved in the interpretation of the insurance policy is up to this Court, and I don’t think that this witness should testify with regard to the interpretation of the policy. I will let this witness testify as to the custom of the trade, and I will give it such weight as I see fit.”

      . LSA-C.C. art. 1958 reads as follows:
      Art. 1958. Interpretation against party responsible for doubt
      “Art. 1958. But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.”


text:
    William R. GOODING v. ST. JOHN THE BAPTIST PARISH POLICE JURY and St. John the Baptist Parish Sewerage District # 2.
    No. 8124.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rudman & Howard, D. Douglas Howard, Jr., New Orleans, for William R. Gooding, plaintiff-appellant.
    Richard L. Edrington, Laplace, for St. John The Baptist Parish Police Jury, defendant-appellee.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This matter comes before us on an exception of no cause of action that was maintained by the trial court. The scope of our inquiry is whether a cause of action is stated upon the face of the petition and the attachments to the petition. An exception of no cause of action is designed to test the sufficiency of the petition and all well pleaded facts in the petition are to be considered as true. Parr v. D. H. Holmes Co. Ltd., La.App., 311 So.2d 463 (1975); Borenstein v. Joseph Fein Caterers, La.App., 308 So.2d 396 (1975).

The petition alleges that the plaintiff owns a certain piece of property that was purchased subject to certain servitudes and restrictive covenants. The first servitude listed is that of: “100 ft. drainage servitude along the side bordering the lower or eastern boundary of LaPlace Plantation.” Covenant # 13 which was attached to the petition states that:

“The seller retains such rights-of-way and easements as may necessary or convenient for the purpose of constructing, maintaining and operating utility services under and through the Property in the designated setback areas between the building lines and the property lines, including but limited to public service wires and conduits for lighting, power and telephone, gas lines, sanitary sewer, storm sewer and water.”

The seller, Landmark Land Company, is not made a party to this suit.

The plaintiff alleges in his petition that the defendants constructed a high pressure sewerage line through his property in the area covered by the drainage servitude and that “at no time was a right of way acquired or permission granted by William R. Gooding or any of the former landowners of said portion of ground.” Plaintiff alleges that the sewerage line caused him great problems in the construction of a new restaurant on the subject ground and has caused him damage to his property in the amount of $225,000.

We believe that those allegations standing alone are sufficient to state a cause of action.

We note that in pleading the exception of no cause of action the defendant made certain fact allegations to the effect that the previous landowner granted permission to build the sewerage line on the servitude area prior to the plaintiff’s purchase. While those allegations may constitute a valid defense they cannot be considered on the trial of the exception of no cause of action. Those allegations would be more properly urged by use of other procedural devices.

A party raising the exception of no cause of action is limited in that no evidence may be introduced at any time to support or controvert an exception of no cause of action and the trial judge is compelled to view the petition alone in making his decision., L.S.A.-G.C.P. Article 931.

For the foregoing reasons we are of the opinion that the plaintiff’s petition does state a cause of action, and accordingly the judgment maintaining the exception of no cause of action is now annulled and reversed, the exception is overruled, and this case is remanded to the trial court to await whatever further action may be appropriate. The costs of this appeal are to await the final outcome of the case.

REVERSED AND REMANDED.

LEMMON, J., concurred and assigned reasons.

LEMMON, Judge,

concurs and assigns reasons.

Defendants contend their exception was properly maintained inasmuch as the drainage servitude permitted construction of the sewerage line on private property.

Servitudes are differentiated from one another according to their declaration of purpose. 1 Plainol, Traité Élémentaire de Droit Civil, § 2880 (La.St.L.Inst.Trans.1959). The granting of a servitude permits the grantee (a person or an owner of an estate) to use the property for a specified limited purpose.

Plaintiff’s petition alleged that defendants constructed a high pressure sewerage line on the property subject to the drainage servitude. If this allegation is accepted as true, the grant of the servitude for drainage purposes would not permit use of the property for the purpose of forced movement of sewerage, and the petition challenging the construction of the high pressure sewerage line therefore states a cause of action. If different facts are established at the trial on the merits, a different legal conclusion may be reached.


author: GUIDRY, Judge.

text:
    Artelia G. JACKSON et al., Plaintiffs-Appellants, v. J. M. LaFLEUR et al., Defendants-Appellees.
    No. 5989.
    Court of Appeal of Louisiana, Third Circuit.
    March 2, 1977.
    Joseph P. Brantley, IV, Baton Rouge, for plaintiffs-appellants.
    Voorhies & Labbe by Mark Bienvenu, Lafayette, Lewis & Lewis, by John M. Shaw, Dubuisson, Brinkhaus & Dauzat, by Jimmy L. Dauzat, Opelousas, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, Judges.
   GUIDRY, Judge.

MOTION TO DISMISS

The defendants-appellees, J. M. LaFleur, et al. move to dismiss the unlodged appeal of the plaintiffs-appellants, Artelia G. Jackson, et al. on the grounds that the appellants did not timely perfect their devolutive appeal.

We dismiss the appellants’ appeal.

Plaintiffs instituted this suit in tort against defendants herein. The case was duly tried and judgment was rendered on November 5,1976; however, notice of judgment, as required by LSA-C.C.P. art. 1913, was not given until November 9, 1976. No application for new trial was made. On January 21, 1977, the plaintiffs moved for and obtained an order for a devolutive appeal.

Article 2087 of the Louisiana Code of Civil Procedure, as amended by Act No. 201 of the Regular Session of the Legislature of 1976, provides as follows:

“Delay for taking devolutive appeal. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within sixty (60) days after:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely.”

Act No. 201 of the Regular Session of the Legislature of 1976, became effective on the last day of October, 1976. Accordingly, on the date that judgment was rendered in the above captioned matter, the delays for taking devolutive appeal were governed by Act No. 201. Therefore, under Article 2087, supra, and LSA-C.C.P. art. 1913, the appellants had until January 17,1977 in which to perfect their devolutive appeal. Since the appellants did not move for their appeal until the 21st day of January, 1977, the appellants’ appeal was not timely taken and therefore must be dismissed.

APPEAL DISMISSED.