text:
    Charley ROBINS, as Administrator of the Estate of his minor son, Reginald Robins v. CITY OF BATON ROUGE et al.
    No. 10653.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Walter C. Dumas, Baton Rouge, for appellant.
    Joseph F. Keogh, Parish Atty., Charles E. Pilcher, Asst. Parish Atty., and Emile C. Rolfs, III, and H. Evans Scobee, Baton Rouge, for City.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This suit was brought on August 5, 1974, by the plaintiff, Charley Robins, as administrator of the estate of his infant son, Reginald Robins, against the City of.Baton Rouge, Louisiana, and Roy D. Nugent, individually and as an officer of the Police Department of the City of Baton Rouge, to recover damages in the amount of $75,000.-00 for an injury allegedly sustained by the minor. The Parish of East Baton Rouge and the acting Chief of Police, Howard Kidder, were also named as defendants, but were dismissed on exceptions of no cause of action; no appeal was taken from the judgment sustaining those exceptions.

The cause of action arises out of an incident which occurred on the night of August 6, 1973, in the emergency room at the Baton Rouge General Hospital. On the night in question, Baton Rouge police officers were investigating a fight at or near a local lounge in which a woman was injured. The investigation indicated that the male suspect in the case, Isaac Byrd, III, also had been injured in the fight and was receiving treatment for his wounds at the hospital. Several police officers, including defendant Nugent, were sent to the hospital to detain the suspect until a patrol unit could arrive and take him into custody. When the police tried to detain Byrd, he started to leave the hospital. The police attempted to restrain the suspect and an altercation took place, involving the police, the suspect and his family. The nurse on duty testified that at least ten persons, males and females, attacked the officer. Other witnesses estimated a lesser number. Among them (the attackers) was Mrs. Robins, sister of Byrd, wife of the plaintiff, and mother of the infant, Reginald Robins, whom she was holding in one arm. During the melee, the child received a minor laceration on his forehead which was closed by a physician in the emergency room with three very fine sutures. The plaintiff testified that, as a result of the injury, the baby “. . . sort of cried a little, you know, during the night.”

The plaintiff claims that Officer Nu-gent, while acting within the course of his employment as police officer for the City of Baton Rouge, struck the child, either intentionally or negligently, causing the injury. Both the City and Officer Nugent deny causing the injury to the child. The defendants further contend that while holding the child, Mrs. Robins voluntarily participated in the altercation, thereby recklessly exposing the child to injury, and that the mother either fell with the child or dropped him on the floor, causing any injury that the child might have sustained.

The case was tried on May 30, 1975; judgment was rendered on June 4, 1975, in favor of the defendants, dismissing the suit and assessing the plaintiff with all costs, including the expert witness fee of a physician. The plaintiff has devolutively appealed this judgment.

The record reflects that the child’s mother testified that the child was hit in the head while she was holding him in her right arm. She said that the child was struck when defendant Nugent swung his blackjack in an attempt to strike her. No other witness indicates that defendant Nu-gent made any attempt to hit Mrs. Robins. In fact, each of the plaintiff’s witnesses gives a different version of the incident.

Officer Nugent testified that he was attacked by several members of Byrd’s family when he attempted to restrain Byrd, knocking him to the floor, and that Mrs. Robins kicked him as he lay on the floor. The officer denied hitting the child. He said he did not have a nightstick, that his blackjack was lost in the scuffle and that it was not returned to him until after-wards. He testified that he did not use his blackjack during the altercation, that he was occupied trying to handcuff the suspect and to defend himself. Nugent’s testimony is corroborated by Officers Payne and Gomez. Officer Phares talked with the child’s mother, who told him that she did not know how the injury to the child occurred. She told him that she might have been shoved against the wall, which could have injured the child.

The trial judge, in his oral reasons for judgment, concluded that the evidence did not prove that Officer Nugent had struck the child.

On the question of liability, the appellant has cited three cases. Taylor v. City of Baton Rouge, 233 So.2d 325 (La.App. 1st Cir. 1970), writ refused, 256 La. 255, 236 So.2d 32, dealt with an unjustified intentional assault by a police officer in making an arrest. The facts are palpably different from those in the instant case. Mullins v. Pence, 290 So.2d 803 (La.App. 1st Cir. 1974), writ denied, 294 So.2d 547, does not support the plaintiff’s position. The Mullins case follows our jurisprudential rule that unreasonable force cannot be used to repel aggression; under the particular facts of that case, the force used was considered to be reasonable. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (La.1969), was a case involving the same principle as Mullins, the use of reasonable force to repel aggression. The court found that the plaintiff had become the aggressor when he pursued the defendant who had retreated, but that the defendant had used excessive force when he struck the plaintiff after the plaintiff had fallen down.

Also, the appellee has cited two cases on the question of the reasonableness of the force used, Jackson v. City of Baton Rouge, 286 So.2d 743 (La.App. 1st Cir. 1973), writ refused 290 So.2d 330 (1974) and Graham v. Ogden, 157 So.2d 365 (La.App. 3rd Cir. 1963).

It is not necessary for us to consider the applicability of these cases, as there is no factual finding that Officer Nugent struck the child.

The case of Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973), sets out the principle of appellate review of facts as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

We feel, after reviewing the evidence, that the trial court’s judgment meets the Canter test of reasonableness. Also, see: Vaughn v. Earthly, 313 So.2d 347 (La.App. 3rd Cir. 1975), writ refused, 318 So.2d 52; Newton v. Zurich Ins. Co., 311 So.2d 635 (La.App. 3rd Cir. 1975); Braud v. Kinchen, 310 So.2d 657 (La.App. 1st Cir. 1975); Doucet v. State Department of Highways, 309 So.2d 382 (La.App. 3rd Cir. 1975), writ refused, 312 So.2d 340.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . He testified that a woman had cut him with a bottle.

      . Officer Nugent explained that a “nightstick” is the same thing as a “billy club”, while a “blackjack” is the same as a “beaver tail” or a “sap.”


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    AETNA CASUALTY & SURETY CO. v. Bob ROTHMAN, d/b/a Bob Rothman Heating & Air Conditioning, et al.
    No. 10647.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      Ronald L. Causey, Baton Rouge, for appellant.
    James E. Moore and J. Byron Stringer, Baton Rouge, for appellees.
    Before LANDRY, SARTAIN and EDWARDS, JJ.
   LANDRY, Judge.

Defendant Bob Rothman (Appellant) appeals from judgment in favor of Aetna Casualty & Surety Co. (Aetna), as subro-gee of Aetna’s insured, Robert Zimmer, for fire damage to said insured’s residence allegedly caused by Appellant’s negligent repair of Zimmer’s central heating unit. Appellant also appeals dismissal of his third party demand against Aetna as Appellant’s averred liability insurer. We affirm.

Appellant is engaged in the business of installing, servicing and repairing heating and air conditioning systems. On January 27, 1973, Appellant received a call for service at the home of Robert Zimmer, Baton Rouge, Louisiana. The call was made by Appellant’s employee, Carey Lemoine. On arrival at the Zimmer home and before entering the residence, Lemoine noticed that the cap was missing from the heater vent pipe which extended above the roof of the residence. After being informed by Zim-mer that the heating system would not come on, Lemoine proceeded to the attic to inspect the heating unit. On completing his inspection, Lemoine informed Zimmer that the gas valve which feeds the combustion chamber of the heating unit was not operating and required replacement. Le-moine then replaced the valve with a new spare valve which he had available. After making the replacement, Lemoine checked the system through three complete cycles and pronounced it in good operating order. Lemoine then departed, after stating he would return the following Monday morning to replace the missing vent cap. He explained to Zimmer that the missing cap could not be replaced that day because, it being Saturday, all supply houses were closed and Lemoine did not have a spare cap in his service vehicle.

Approximately 20 minutes after Le-moine’s departure, Mr. Zimmer detected an odor emanating from the heating system. Mr. Zimmer described the odor as similar to that of burning wire insulation. He attempted to turn the heating system off by means of the thermostat control, but to no avail. Shortly thereafter, Mr. Zimmer discovered the ceiling of the bathroom was on fire. The fire spread rapidly, notwithstanding the main electrical switch was turned off and the main gas supply valve was closed. The fire did approximately $10,000.00 damage to the Zimmer home.

The crucial issue is proof of causation of the fire, concerning which there is circumstantial evidence only. The trial court found the facts in this instance indistinguishable from those in Mosely v. Sears, Roebuck and Company, 167 So.2d 408, from which conclusion he deemed the cited authority dictated judgment herein on Aet-na’s main demand. Appellant’s third party demand against Aetna was rejected by the trial court upon finding Aetna’s liability coverage of Appellant excluded a “completed operation,” into which category this instance falls.

Plaintiff alleged the fire resulted from Appellant’s negligence. Alternatively, plaintiff invoked the doctrine of res ipsa loqui-tur. Appellant contends there was no proof of negligence in this instance as the precise cause of the fire was not shown. While Appellant concedes that negligence may be established by circumstantial evidence, Appellant maintains the required proof is lacking in this instance.

Plaintiff produced a single expert, Dr. Gerald Whitehouse, Mechanical Engineer, who testified that the valve in question had been subjected to extremely high temperature since it was partially melted. He explained that the unit continued to operate, despite efforts to turn it off, because the valve in question remained open. According to Whitehouse, the valve remained open because of one of three possibilities: (1) the valve was improperly installed, the greatest possibility in this instance being that the electrical wires controlling the valve were crossed; (2) the valve itself was defective; and (3) trash entered the valve and prevented it from properly “seating” or closing. The latter possibility was considered the least likely to have occurred. Dr. Whitehouse conceded that it was impossible to determine whether the wires were crossed on installation or whether the valve itself was defective. He also conceded that from the condition of the valve it is possible the fire originated from some outside source.

We find the doctrine of res ipsa loquitur applicable in this instance. We also find that Appellant has failed to successfully rebut the inference of negligence resulting from the application of that legal principle.

Although the jurisprudence variously refers to the burden of proof incumbent upon a plaintiff as proof to a “reasonable certainty,” proof to a “legal certainty,” or proof by evidence which is of “greater weight” or “more convincing” than that to the contrary, the proof required, either by direct or circumstantial evidence, is sufficient to constitute a preponderance when the evidence as a whole shows that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621.

Res ipsa loquitur (the thing speaks for itself), when applicable, is a rule of circumstantial evidence where negligence on defendant’s part is inferred because the facts indicate defendant’s negligence to be the more probable cause of plaintiff’s injury in the absence of other as plausible explanation by credible witnesses. Pilie v. National Food Stores of Louisiana, Inc., 245 La. 276, 158 So.2d 162; Larkin v. State Farm Mutual Automobile Insurance Company, 233 La. 544, 97 So.2d 389; Boudreaux v. American Insurance Company, above. In such instances the evidence indicates defendant’s negligence as the cause of plaintiff’s injury notwithstanding lack of proof of the precise negligence involved. Boudreaux v. American Insurance Company, above.

The doctrine of res ipsa loquitur warrants rather than compels the inference of negligence resulting from its application. The rule does not dispense the necessity of proof of defendant’s negligence; it is merely a procedural aspect of the proof process. In a proper case the rule permits plaintiff to set before the court, together with proof of the occurrence of the accident and sufficient attending circumstances to invoke the rule, the inference of negligence. Boudreaux v. American Insurance Company, above.

In determining liability pursuant to the res ipsa loquitur principle the test is, do the facts suggest negligence on defendant’s part rather than some other fact or factors, was the most plausible explanation of the accident? Pilie v. National Food Stores of Louisiana, Inc., above; Boudreaux v. American Insurance Company, above. If the answer to this query is in the affirmative, res ipsa loquitur applies. However, application of the doctrine of res ipsa loquitur is not proper if it may be as reasonably inferred the accident did not occur because of defendant’s negligence, as it could be inferred the accident was due to defendant’s negligence. Boudreaux v. American Insurance Company, above.

Appellant’s contention that res ipsa lo-quitur is inapplicable because of the absence of defendant’s control over the heating system is without merit.

In Plunkett v. United Electric Service, 214 La. 145, 36 So.2d 704, the Supreme Court held that the element of control by the defendant of the instrumentality causing damage is not indispensable to application of the doctrine of res ipsa loqui-tur. Granted that Plunkett is distinguishable from the present case in that defendant in Plunkett, above, had installed a heating system in plaintiff’s home 39 hours before the fire which occurred, and which system was the cause of the fire. Nevertheless, Plunkett, above, stands for the proposition that control by defendant is not absolutely essential to application of res ipsa loquitur and that the principal announced in Plun-kett, above, is conformable with the tendency of modern courts to extend the res ipsa loquitur doctrine to an ever broadening line of cases.

Subsequent to Plunkett, above, this circuit decided Mosely v. Sears, Roebuck and Company, La.App., 167 So.2d 408, which is remarkably similar to the facts in the case at hand. In Mosely we in effect folio-wed and applied the principles set out in Plunkett, above.

The record shows that on at least two prior occasions, Appellant had been called to service the system in question. Each instance involved relighting the pilot light which had gone out. On the first occasion the pilot light was merely re-lighted. In the second instance it was found that the “breather tube” and “pilot tubes” had become clogged. After cleaning these tubes, Appellant’s employees merely relighted the pilot light. While Appellant had not installed the system in question, it is clear that Appellant was familiar with this unit. It is equally clear that Appellant was the only maintenance service Zimmer had employed to check the unit in quite some time. Appellant changed the valve. The fire commenced within 20 to 30 minutes after Appellant’s employee substituted the new valve. The fire originated in the attic in the vicinity of the area where the heating unit was installed. Appellant installed a new heating system in Zimmer’s home after the fire. The only expert testimony of record indicates that the fire could have started in the heating system because either: (1) the valve was cross-wired upon installation; (2) the valve itself was defective; or (3) trash entered the valve and prevented its proper seating and caused it to remain at least partially open. We find this combination of circumstances gives rise to application of the doctrine of res ipsa loquitur and the consequent inference that the most plausible cause of the fire was Appellant’s negligence. Therefore, the duty devolved upon Appellant to establish circumstances from which it could be reasonably inferred with equal plausibility that the fire did not result from Appellant’s negligence. In this regard we note Appellant’s reference to a gas-operated water heater situated in a kitchen closet near the bathroom wall. The contention is made that the fire could have started from the water heater. However, the record is barren of proof that the fire in the attic was caused by the water heater in the kitchen below.

Appellant’s remaining contention is that his liability in this instance was covered by a comprehensive liability policy issued by Aetna, and that the trial court erred in deciding otherwise. The ruling of the trial court in this regard was based on the finding that the repair of the heating unit constituted a “completed operation” within the-meaning of the definition “completed operation” contained in the policy and that such operations were expressly excluded from coverage.

The policy defines “completed operation” as follows:

“ 'completed operations hazard’ includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed,
(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.”

Appellant suggests the service performed in this instance was not a completed operation in that the operation was not finished until the missing outside vent cap was replaced. Appellant also invokes the rule that ambiguities are to be construed against an insurer and in favor of the insured and on this premise maintains the policy coverage provisions are misleading, confusing and uncertain.

The testimony of Rothman, Le-moine and Whitehouse is unanimously to the effect that the missing vent cap bore no relation to the fire, nor was it vital to the safe operation of the heating system. The sole function of the cap was to prevent downdrafts which might extinguish the pilot light. The repair of the heater was complete when Lemoine replaced the valve and put the heater back in operation. When Lemoine left the Zimmer residence, Zimmer had put the system to its intended use. Under the definition of “completed operation” contained in the policy, this particular operation had indeed been completed.

Appellant’s application for the insurance issued by Aetna, and the schedule of coverage pursuant to the general liability coverage portion of the policy itself both clearly set out that “completed operations” are not covered, and no premium was charged for such coverage. Appellant’s argument appears to be that since the policy defines different types of coverages for which different premiums are paid, it is difficult for a policyholder to determine the precise coverage afforded by the policy. This position is without merit. The policy contains a paragraph entitled “Description of Hazards,” under which are listed the following: (A) Premises—Operations; (B) Escalators; (C) Independent contractor— Let or sublet work; (D) Completed Operations; (E) Products; and (F) Contractual. This same paragraph clearly shows coverages (D) and (E) as “Not Covered.” The issue here is not ambiguity, confusion or uncertainty resulting from a misleading coverage provision, but rather the failure of the insured to purchase an available coverage which the insured did not opt to secure. We find the definition of “completed operations” to be clear and unambiguous. We also find the insured failed to purchase this particular protection.

The judgment of the trial court is affirmed at Appellant’s cost.

Affirmed.


author: EDWARDS, Judge.

text:
    Eva Mae JOHNSON v. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY.
    No. 10591.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      W. Luther Wilson, Baton Rouge, for appellant.
    Arnold J. Gibbs, Baton Rouge, for plaintiff-appellee.
    Arthur Cobb, Baton Rouge, for witness, Alice Ruth Price Williams.
    Before LANDRY, SARTAIN and EDWARDS, JJ.
   EDWARDS, Judge.

Defendant-appellant, National Life and Accident Insurance Company (National) appeals from the trial court’s decision in favor of plaintiff Eva Mae Johnson granting double-indemnity benefits under a life insurance policy issued to her decedent-son, Charles Gilbert Williams (Charles).

It is stipulated that the original $500.00 policy (which has been paid) has a double-indemnity provision, plus a rider which doubles again the total amount of the policy, if due, to $2000.00. The trial court found that the additional amount of $1,500.00 plus interest from judicial demand and costs were due. It similarly denied plaintiff’s claim for penalties and attorneys fees. We affirm.

The policy provides for the double indemnity payments if the death resulted directly, and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means.

It is the burden of the plaintiff initially to establish that the death of the insured was “accidental”; that is, that the death resulted “directly, and [independently] of all other causes, from bodily injuries effected solely through external, violent and accidental means.” Willis v. Willis, 287 So.2d 642 (La.App. 3rd Cir. 1974).

“Accidental” death has been explained as follows:

* * * If it be manifest that death was neither occasioned by natural causes nor by the deceased himself, it at once becomes evident that the ‘violent and accidental’ must be considered as cause.
* * * It may be logically inferred— indeed, it must be inferred, as it was not a natural death or a suicide—that the death was caused by external, violent and accidental means.

Willis, supra; Konrad v. Union Casualty and Surety Co., 49 La.Ann. 636, 21 So. 721 (1897).

It was stipulated herein that the insured died of a gunshot wound, as reflected in the coroner’s report. This is the antithesis of a natural cause. Secondly, the law presumes the love of life and negates suicide, of which no evidence was offered. Therefore, plaintiff has established a prima facie case of “accidental” death.

Once the initial burden is met by plaintiff, the burden then shifts to the insurer to show by a preponderance of the evidence that such insurer is nevertheless not liable by reason of a special defense or an exclusion clause. Willis, supra; Haynes v. Modern Woodmen of America, 135 So.2d 548 (La.App. 3rd Cir. 1962).

Defendant-insurer herein contends that the insured was an aggressor and his death was therefore not accidental. Such contention, if proved, would indeed preclude recovery under the policy. Willis, supra, and cases cited therein.

We conclude, however, that the burden of proving that the insured was the aggressor was not met. Defendant insurer must rely on the testimony of Alice Ruth Price Williams, the only eyewitness, to meet this burden. Her testimony, because of her numerous invocations of the privilege agsinst self-incrimination (criminal charges against her in connection with the death of the insured were yet viable at the time of this civil trial), was brief. She stated that the insured, after leaving that afternoon, returned that night and waked her. She let him in, an argument ensued, and he threatened to kill her. She was defending herself when the gun went off, and it was in the hands of the insured. She told the police officers that the shooting was accidental.

It is obvious that the trial judge disregarded this testimony in reaching his decision. Considering (1) the inconsistency between the pre-trial order wherein it was stipulated that the gun was in Mrs. Williams’ hands when it discharged and her statement to the contrary at trial, and (2) the obviously existing reasons (the possible criminal prosecution) for Mrs. Williams to give false, misleading, or self-serving testimony, we cannot say that the trial judge’s findings were manifestly erroneous.

Defendant-insurer further relies on two exclusions in the policy which deny the double-indemnity recovery if the death

(Ill) results from the Insured’s commission of, or attempt to commit, an assault or felony, or
(V) results from an altercation in which the Insured participates otherwise than as a spectator.

The burden of proving these exclusions is that of the insurer. Haynes, supra. For similar reasons as above mentioned, we can neither say that the trial judge committed manifest error in holding that the insurer likewise failed to carry its burden in establishing these exceptions.

The plaintiff has answered the appeal seeking penalties and attorney’s fees. We agree with the trial court’s refusal to grant same.

For these reasons, the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: ELLIS, Judge.

text:
    W. F. McCarthy v. Salvadore MAGLIOLA et al.
    No. 10676.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      Roy L. Price, Metairie, for appellant.
    Tom Waterman and Tom Matheny, Hammond, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

On September 19, 1969, plaintiff W. F. McCarthy purchased a parcel of ground from defendants Mrs. Annie Anzalone Magliola Formaggio Pecararo, Salvador Joseph Magliola and Mrs. Rose Marie For-maggio Goodwin. The act of sale contained the following provision:

“It is understood and agreed that purchaser shall have the option to purchase the following described property within a period of five years for a consideration of the same price per acre as the land herein purchased, to wit:....”

There then follows the description of a 60 by 133 foot lot adjoining the property purchased on the north.

The parties stipulated that plaintiff timely attempted to exercise the option by giving proper written notice of his intention to do so, and that the defendants refused to execute an act of sale because they contested the validity of the option. It was further stipulated that the consideration of $15,000.00 paid for the parcel purchased by Mr. McCarthy in 1969 was the market value thereof.

After trial on the merits, judgment was rendered ordering the defendants to transfer the property to plaintiff in accordance with the option, and defendants have appealed.

It is contended that the court should have found the option invalid for lack of consideration, and because the five year period of the option was too long and void as against public policy.

With respect to the second argument advanced, defendants cite no authority for the proposition, and we know of no legal time limitation on the period for which an option may be granted, nor of any consideration of public policy which would limit one’s rights in that respect.

Article 2462 of the Civil Code provides as follows:

“A promise to sell, where there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.
“One may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon; and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such promise and acceptance, may be specifically enforced by either party.”

Defendants contend that since no consideration is expressed within the clause granting the option, it is invalid under the above codal provision.

We do not so interpret the act of sale. As we see it, plaintiff purchased a lot of ground and the option to buy another lot for $15,000.00. There is therefore consideration to support the option. We do not believe that the option can be considered otherwise than in the context of the act of sale.

The judgment appealed is therefore affirmed, at defendants’ cost.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Ervin PICOU and Roy Picou, d/b/a Picou’s Lumber Co. v. Guy PUMA, Sr.
    No. 10672.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    John J. Cosner, Jr., Hammond, for appellant.
    Edward B. Dufreche, Ponchatoula, for appellee.

      Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit on an open account. From a judgment in favor of the plaintiffs, defendant has perfected this appeal.

The record reveals that the defendant-appellant, Guy Puma, Sr., a building contractor, had purchased building material's from the plaintiffs for a number of years. Plaintiffs filed this suit on November 12, 1971, to recover $3,344.17, representing building materials purchased and not yet paid for. The defendant normally had more than one construction job going at a time, and separate accounts were kept by the plaintiffs on each of the defendant’s jobs. At the time of this suit, the defendant had two accounts with the plaintiffs, the “Albany job” and the “Columbus Drive job.”

The Trial Judge found that as of February 19, 1968, there was a balance due by the defendant-appellant to the plaintiffs of $3,710.88. On September 14, 1970, the defendant paid $726.42, of which $226.42 was applied to bring the “Albany job” account current, and the balance of $500.00 was then applied to the “Columbus Drive” account, being the older of the two accounts. The last previous credit on the “Columbus Drive” account had been on February 19, 1968.

The defendant-appellant contends that the Trial Judge erred in (1) granting a judgment based upon the uncorroborated testimony of one witness; (2) relying on inadmissable evidence to support his finding that the alleged $500.00 payment on September 14, 1970, interrupted prescription as to the “Columbus Drive” account; and (3) finding that the defendant did not instruct plaintiffs as to which account the payment of September 14, 1970, was to be applied.

In support of his first specification of error, the defendant contends that the only evidence the plaintiffs introduced other than the testimony of Mr. Ervin Picou as to the indebtedness owed by the defendant were two unsigned receipts plus a deposit slip and a letter. The itemized statement of charges and credits, with all invoices attached thereto, which was attached to the plaintiffs’ petition, was not offered, introduced and filed into evidence. We have studied carefully the record of this proceeding, and the documentary evidence contained therein. Even though there is contained in the documentary evidence envelope before this Court the itemized statement and all of the invoices attached thereto which were originally attached to the petition, we do not find that this was ever filed into evidence. In addition, however, we further find two other itemized statements of account, one beginning on March 9, 1964, and ending on March 29, 1966, showing a payment on that date of $799.30, clearing out that account in its entirety, and another itemized statement commencing on September 27, 1966, and ending on September 5, 1968, with a payment of $789.83, clearing that account, and we find neither of these two itemized statements to have been filed and introduced into evidence. We further note that on the itemized statement which commenced on September 27, 1966, and ended on September 5, 1968, there is a similarity between invoice debits on that itemized statement and invoice debits on the itemized statement which was originally attached to the petition. We cannot find an answer to these discrepancies explained anywhere in the record.

We do not, however, agree with the defendant-appellant that the plaintiffs have failed to comply with LSA-C.C. art. 2277 which provides:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hun dred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.” (Emphasis added)

We note that counsel for defendant-appellant admitted to the Trial Judge that the plaintiffs’ invoices and tickets were not in contest, only what they added up to was in contest. In view of the entire record, we take this admission to mean that it was the amount that was being sued for that was in question, not the fact that the defendant purchased those particular supplies. Therefore, we see no error in the failing to file and introduce into evidence the invoices and statements.

As to the second specification of error, we find no merit. Defendant-appellant argues that the Trial Judge relied on evidence which he had ruled inadmissable in overruling the exception of prescription. As we above noted, the defendant on September 14, 1970, by check paid the amount of $726.42 to the plaintiffs. Of this amount $226.42 was applied to bring the “Albany job” account current, and the balance of $500.00 was then applied to the “Columbus Drive” account. It is the application of the $500.00 balance to the “Columbus Drive” account that was the object of the exception of prescription, inasmuch as the last previous credit on the “Columbus Drive” account had been on February 19, 1968.

The plaintiff testified as to the September 14, 1970, payment of $726.42, and explained how $226.42 was used to pay out the balance on the “Albany job” account, and the remainder was applied to the “Columbus Drive” account. After the plaintiff had finished testifying on that payment, counsel for plaintiff attempted to introduce into evidence a statement of the Albany account reflecting that the $226.42 credit on September 14, 1970, brought that account current. This introduction was objected to by counsel for defendant, and sustained by the Trial Judge, however, counsel for defendant had not objected to any of the testimony of the plaintiff explaining how the payment of $726.42 was made and divided. The statement was filed into evidence by a proffer. Therefore, even though the Trial Judge in his written reasons for judgment made mention of the proffered statement, we feel that no error has been done, inasmuch as sufficient testimony was before the Trial Judge to justify his overruling of the exception of prescription.

Lastly, the defendant-appellant contends that the Trial Court was in error when it found that the defendant did not instruct plaintiffs as to which account the payment of September 14, 1970, was to be applied. The Trial Judge found as a matter of fact that the plaintiffs were not instructed to apply these funds to any special account. This payment was made by check, but filed and introduced into evidence were duplicate copies of two receipts, each being dated September 14, 1970, and showing the “Albany job” account being credited for $226.42 and the “Old Bill” which was also referred to by the parties as the “Columbus Drive job” being credited with $500.00. Considering these facts, we find no error on the part of the Trial Judge in finding that the plaintiffs had properly imputed this payment to these two accounts. LSA-C.C. art. 2165.

Though the defendant has had his day in Court, and the opportunity to present all of the testimony and evidence in support of his position, and to contest and oppose all of the testimony and evidence presented by the plaintiffs, and further considering the fact that the appellate courts of this state do not normally give party litigants two “bites at the apple”, so to speak, we are of the opinion that this is such a situation whereby we should exercise that authority granted to this Court under LSA-C.C.P. art. 2164 so that the ends of justice may be met by remanding this matter back to the Trial Court to allow additional information so as to clarify duplication of invoice entries on two separate itemized statements which we have pointed out above.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is reversed and remanded in accordance with the views expressed herein. All costs of this appeal are to be paid by plaintiffs-ap-pellees.

REVERSED AND REMANDED.


author: BLANCHE, Judge.

text:
    John OVERTURF et al. v. William E. BERNARD et al.
    No. 10674.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      Ronald De Frances, Baton Rouge, for appellants.
    Eugene R. Groves, Baton Rouge, for ap-pellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

On September 22, 1973, at Baton Rouge, Louisiana, defendant-appellee, William E. Bernard rear-ended a 1972 Lincoln Continental Mark IV leased by plaintiff-appellant, John R. Overturf. At the time, the automobile was being driven by Overturf’s wife, Anna Lee, also a plaintiff-appellant herein. John Overturf occupied the right, front seat and his daughter, • Dolores I. Overturf, the third plaintiff-appellant herein, was seated in the rear.

As a result of injuries sustained, all three occupants of the Overturf automobile sued Bernard and his liability insurer, defendant-appellee, Travelers Indemnity Company. At the trial it was stipulated by all parties that the defendants were liable but only to the $100,000/$300,000 limits of the insurance policy. It was also stipulated that the defendants were liable for and actually paid $718.56 for the repair of the plaintiffs’ automobile.

At the trial, which was limited to the question of quantum, each of the plaintiffs testified, along with defendants’ expert witness, Dr. Charles A. Beskin, a thoracic and vascular surgeon. The depositions of four other physicians were also introduced in evidence.

In a lengthy and well-considered opinion, the trial judge found the defendants solidarity liable to Anna Overturf for the sum of $500 and to Dolores Overturf for the sum of $750, with both judgments bearing legal interest thereon from date of judicial demand until paid.

John Overturf was also given judgment against the defendants, in solido, in the sum of $10,802.12, with legal interest from date of judicial demand until paid. Ten thousand dollars of the award was for his “pain, suffering and disabilities,” $472.25 for medical bills, and $329.87 for replacement automobile rental.

In view of the fact that the trial judge itemized and separated John Overturf’s general damages from his special damages, we conclude that the awards in favor of Anna and Dolores Overturf were for their general damages only. No special damages were separated or itemized in their favor.

The expert witness fee for each of the five physicians was set at $75 and taxed as costs, to be paid by defendants.

The sole issue on this appeal is the quantum awarded to each of the plaintiffs. Each has appealed, seeking an increase in the trial court award, and the defendants answered the appeal of John Overturf, seeking a reduction of $5,000.

LSA-C.C. Art. 1934 (3) requires that in assessment of damages in cases of offenses and quasi offenses “much discretion must be left to the judge or jury.” In Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967), the Louisiana Supreme Court, in referring to Article 1934 (3), stated:

“* * * This law is plain and means what it says, and it is the duty of all appellate courts to follow it. Under this rule the amount of damages assessed by the judge or jury should not be disturbed unless the appellate court’s examination of the facts reveals a clear abuse of the discretion vested in the lower court.” (200 So.2d at 132)

I.

The facts reveal that Anna Over-turf, the driver of the automobile, was seen immediately after the accident at the Baton Rouge General Hospital Emergency Room, but, as was the case with all three plaintiffs, she was released without hospitalization. On her return home to Moss Point, Mississippi, she was requested by her physician, Dr. Frank Garbin, to enter the local hospital for observation. However, she declined, being of the opinion that since her daughter and her husband were admitted to the hospital, she would be needed to run errands and care for them.

The only medication she took was aspirin, and she suffered with headaches and a stiff neck for about two weeks. She saw her physician twice for these troubles. The trial judge described her injuries as “mild.” Thus, the award of $500 general damages “as compensation for her injuries” was not a clear abuse of the trial judge’s discretion and will not be disturbed.

It appears, however, that the trial judge inadvertently failed to award her special damages of $6 for consultation with Dr. Garbin. The judgment in her favor will, therefore, be amended by the addition of $6.

II.

Dolores Overturf bumped her head on the top of the automobile and suffered “terrible headaches.” Upon returning home to Moss Point, she was hospitalized three days for skull x-rays which showed negative. Her hospital bill was $251.65.

Her head and neck hurt for approximately two to three months after the accident. However, she has no permanent trouble from the injury, except for some stiffness when she takes long atuomobile trips.

This plaintiff cites several cases where somewhat similar injuries resulted in awards greater than $750. She, therefore, contends that an additional award of $1,000 would be appropriate in the instant case. However, the cases cited are not factually identical to the instant case. For instance, in Anderson v. State Farm Mutual Automobile Insurance Company, 238 So.2d 360 (La.App. 3rd Cir. 1970), the injured claimant was a pregnant woman, for which we feel a higher award was justified. The claimant in Jennings v. Allstate Insurance Company, 241 So.2d 778 (La.App. 3rd Cir. 1970), suffered for over two years, whereas the plaintiff herein, according to her own testimony, suffered for only two to three months.

Despite the similarity to other cases, the award in each individual case must be determined on its own merits. Contrary to what plaintiff argues, uniformity is not the criterion by which to judge the adequacy or inadequacy of her recovery. In this regard we note the following language in Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974) :

“* * * The awards made in other cases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly disproportionate to similar awards (if truly similar), whether an issue of abuse of discretion may exist in the present case. In any event, an abuse of trial-court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages.” (304 So.2d at 352)

In view of the evidence presented, we cannot say that the award of $750 general damages for injuries which the trial judge considered to be of a “minimal nature” was clearly an abuse of the trial judge’s discretion. However, the award failed to include special damages of $251.-65 for her hospital bill and a $10 medical bill of Dr. Garbin. The judgment in her favor will, therefore, be amended by the addition of $261.65.

III.

We also find no abuse of discretion in the award of $10,000 to John Overturf for his pain, suffering and disabilities. The following is a summary of the evidence concerning his injuries.

Plaintiff’s body evidently hit the dashboard upon impact by the Bernard vehicle. He was taken to the Baton Rouge General Hospital Emergency Room and given pain killers but required no hospitalization at that time. He returned home and saw Dr. Garbin, and on October 5, 1973, was hospitalized five days for stomach symptoms. During this stay, he was seen by Dr. M. F. Longnecker, Jr., an orthopedic surgeon, who diagnosed moderate degenerative changes in the lower cervical vertebrae, particularly at the C-5, C-6 and C-7 level. He felt that there was some impingement of the nerve root at the C-6 and C-7 level.

He found no real problem in the lower back, although plaintiff complained of soreness there. Dr. Longnecker recommended a myelogram to determine the seriousness of the damage. However, Over-turf, for reasons known only to him, refused and has continued to refuse to submit to that test.

On October 23, 1973, Overturf was again hospitalized, at which time it became obvious that his stomach problems were due to gallstones and a diaphragmatic hernia.

On November 2, 1973, Dr. C. D. Whig-ham operated to correct the hernia and gallstones. Because both were repaired in the same operation, a transverse incision across the entire abdomen was necessary, and this incision resulted in difficulties. On November 11, the incision burst, due to its length and complications from the patient’s obesity, and further surgery was required to obtain a secondary closure of the wound. Plaintiff thereafter recovered and was discharged on November 17.

On December 28, 1973, plaintiff again saw Dr. Longnecker regarding his neck and back problems. The myelogram was again recommended.

On August 6, 1974, a dehiscence, or second bursting of the abdominal incision occurred, requiring additional hospitalization and surgery.

All physicians who testified acknowledged that the gallstones were unrelated to the accident. However, there was some disagreement as to whether the hernia was caused by or merely aggravated by the accident.

Dr. Garbin felt the hernia was caused by the accident, while the surgeon who operated, Dr. Whigham, felt that the accident, in conjunction with the plaintiff’s obesity, probably aggravated a preexisting hernia which had been repaired some years prior to this accident.

Dr. Beskin felt that the blow suffered in the somewhat minor automobile collision was totally insufficient to cause the hernia and was even reluctant to agree that such a blow would have aggravated the preexisting hernia.

The trial judge found:

“Considering the opinion of the three physicians who commented upon the relationship between the plaintiffs’ accident and developments necessitating surgery thereafter, the Court finds that the collision was not the initiating cause. Nevertheless, it would appear from the doctors’ assessment, the accident was an aggravating factor and probably contributed' to some of the complications related to the surgery and period of recovery.” (Written Reasons for Judgment, Record, p. 34)

Based upon the record, we cannot say that this conclusion by the trial judge was manifestly erroneous.

With regard to his back problems, the plaintiff was examined in February, 1975, by defendants’ expert neurosurgeon, Dr. Thomas B. Flynn. Dr. Flynn agreed with-Dr. Longnecker that the plaintiff suffered from a degenerative disc disease that pre-dated the accident but acknowledged that the accident aggravated same. He, too, considered that a myelogram should be done.

Dr. Flynn and Dr. Longnecker agreed that the plaintiff’s back problems were something he could learn to live with and that an operation was not imperative at the time of trial. They also both acknowledged that plaintiff would experience some pain occasionally as a result of the problem.

Altogether, considering both his back injuries and stomach problems, the plaintiff was absent from his work as an industrial engineer for approximately five months.

With the foregoing facts in mind, the trial judge made the following determination:

“Considering the expert testimony of the witnesses and the other evidence submitted in the case, the Court has formed the opinion that none of plaintiff’s medical problems following the accident originated with the trauma received in the collision, but nonetheless the collision aggravated these preexisting conditions, particularly as related to the cervical region. Under the circumstances it is very difficult to make an accurate assessment of the damages to be awarded to Mr. Overturf, but the Court believes that while the defendants ‘must take their victim as they find him’ as the courts have previously stated, neither should all of the plaintiff’s known prior ailments be visited upon them in terms of retribution. Consequently, the Court finds that a fair and adequate award for the pain, suffering and disabilities occasioned Mr. Overturf is $10,000.00.” (Written Reasons for Judgment, Record, p. 36)

Based on these observations, we conclude that the trial judge’s award for general damages included plaintiff’s initial injuries to his back, neck and hernia, as well as the complications resulting from the dehis-cence. It is further obvious that he concluded that because of the plaintiff’s gall bladder illness that the defendants should not be saddled with all the pain and suffering attendant with the complications as a result of the dehiscence and mitigated the damages to this extent. In our opinion, such a finding was in accordance with the trial judge’s great discretion which we believe he properly exercised.

Although the trial judge found that the accident was an aggravating factor and probably contributed to some of the complications related to the plaintiff’s surgery and period of recovery, the only medical expenses awarded were for the initial expenses which resulted directly from the accident and those attributed to plaintiff’s back problems. We concur in those awards but believe he inadvertently failed to assess the medical expenses for the hernia and prorate the expenses occasioned by the dehiscence as he did in assessing general damages. Consequently, in addition to those initial and back-related expenses, the defendants are also liable for the plaintiff’s medical expenses to repair the aggravated hernia. Since the defendants are not liable for the plaintiff’s gall bladder problems, the issue before this Court is to decide which of the plaintiff’s medical expenses are attributable to the hernia and which to the gall bladder.

Those expenses attributable to the hernia, since it was accident aggravated, must be awarded to the plaintiff to fully indemnify him for his loss, LSA-C.C. Art. 1934(3). Even though it is not clear which expenses were for each problem, the plaintiff is, nevertheless, entitled to recovery, for as stated in Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971):

“Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all the facts and circumstances of the case. * * * ” (245 So.2d at 155)

In accordance with the cited authorities, we now make the following determinations.

Dr. Whigham deposed that his ordinary fee for this type of hernia operation was $450, and we, therefore, award that amount for the initial hernia operation.

The Singing River Hospital bill for the initial hospital stay for the repair of the hernia and the gall bladder was $2,368.90. Dr. Whigham testified that the patient would have been hospitalized the same length of time if the hernia operation had been performed singly, and, therefore, the room and board bill should have been the same despite the plaintiff’s having been operated on for both illnesses at once.

However, the determination of the portion of this bill attributable to the hernia is made difficult by the fact that the incision, which was of unusual proportions in order to accommodate performing both operations at the same time, burst and required additional surgery and additional hospital expenses. The physicians agreed that it burst because of the type of incision, complicated by the obesity of the patient. Discretion would seem to require some mitigation of the bill in defendants’ favor unless the defendants be given a free ride on the gall bladder operation as well as the complications which resulted therefrom.

We note, however, that the incision burst on the left side, which was the same side as the hernia. Additionally, the gall bladder operation, although not necessitated by the accident, was, in fact, complicated or aggravated by the fact that performance of an accident-related operation was required in combination therewith. In effect, we find that the gall bladder operation was complicated somewhat by the accident for which the defendants have been found liable. When all of the factors are considered, doing justice under the circumstances must be discretionary. In our discretion, we assess hospital expenses which plaintiff is entitled to recover at three-fourths of the hospital bill, or the sum of $1,776.68.

The plaintiff also incurred $680.25 in hospital expenses and a surgical bill of $250 for the second wound closure in August, 1974. In view of our prior discussion, an award of three-fourths of the hospital expenses, amounting to $510.19, and three-fourths of the surgical bill, amounting to $187.50, is justified.

Plaintiff is also entitled to $44 for diagnostic x-rays on October 26, 1973, in conjunction with his hospital stay for the initial operation.

Plaintiff has also made a claim for lost wages. At the time of the accident, plaintiff was a self-employed safety engineer, and he was absent from work for approximately five months. His absence necessitated his hiring an engineer to substitute for him, since his business was a one-man operation.

To establish his loss, plaintiff introduced his federal income tax return for 1972, his first year in business, which showed income of $9,494.28.

His 1973 tax return evidenced $15,793.01 income from his business, although he was absent for the entire months of November and December due to his operation.

Although his 1974 tax return had not been filed at the time of trial, his profit and loss statement for that year, in which he missed approximately two months of work, showed $6,484.06 net income before taxes.

An award for loss of income is difficult in this case because of the fact that plaintiff had only operated his business for approximately two years prior to the accident, and, therefore, in our opinion we have no adequate pattern of income which would adequately reflect his loss.

Furthermore, all of the plaintiff’s lost time was not caused by the accident. Accordingly, we are of the opinion that an award of $7,500 would adequately compensate plaintiff for his income lost during his absence from work.

In recapitulation, we find that plaintiff is entitled to $450 for the initial hernia operation; $1,776.68 for the hospital expenses incurred due to the hernia and gall bladder operation; $510.19 for the second hospitalization; $187.50 for the surgical bill incurred for the second wound closure; $44 for x-ray expenses; and $7,500 for loss of income; or a total of $10,468.37.

For the above and foregoing reasons, the judgment of the trial court in favor of plaintiff, Anna Lee Overturf, in the sum of $500 is hereby amended by the addition of $6 thereto; the judgment in favor of plaintiff, Dolores I. Overturf, in the sum of $750 is hereby amended by the addition of $261.65 thereto; and the judgment in favor of plaintiff, John R. Overturf, in the sum of $10,802.12 is hereby amended by the addition of $10,468.37 thereto. In all other respects the judgment of the trial court is affirmed. All costs are to be borne by defendants-appellees.

AMENDED AND AS AMENDED, AFFIRMED.


text:
    VALLEY MILLS v. Warren DANIELS, d/b/a Southern Grain.
    No. 10664.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      Jack W. Harang, Slidell, for appellant.
    Donald M. Fendlason, Bogalusa, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is an action by plaintiff, Valley Mills, on open account for merchandise sold to defendant, Warren Daniels doing business as Southern Grain. Defendant filed a reconventional demand to rescind the sale, receive return of the purchase price, and also for damages to defendant’s business reputation. The Trial Court rendered judgment in favor of plaintiff as prayed for in the amount of $2,570.81, together with legal interest thereon, dismissed the reconventional demand, and ordered defendant to pay all costs. From this judgment defendant has appealed.

Plaintiff manufactured animal feeds, and defendant, who had a retail business in Sli-dell, Louisiana, had purchased plaintiff’s products regularly for sale at retail for a few years prior to and through the time of the sale which is in dispute. According to defendant, he received numerous complaints as to the quality of the feed received from plaintiff near the end of 1973 and early part of 1974 necessitating the making of refunds and destroying of some of the feed sold to him by plaintiff. As a result, defendant refused payment of its account with plaintiff precipitating the present suit.

In oral reasons for judgment, the Trial Judge found that plaintiff proved its case at which point the burden shifted to the defendant to prove his special defense and reconventional demand. The Trial Judge stated that he had too many questions in his mind as to the quality of the feed, and therefore, he held that the defendant and plaintiff in reconvention did not carry his burden of proof in order to establish his claim by a preponderance of the evidence.

For the most part the feed involved was a horse feed named “Grand Champ” and also oats used as horse feed, all being sold in fifty pound bags. Specifically, the defendant testified that he had to exchange bags of plaintiff’s product with other feed for customers who were dissatisfied as to quality. It appears that the feed defendant gave his customers in exchange was also plaintiff’s product. Defendant also testified that he had destroyed sacks of plaintiff’s product because it was infested with weevils which he did not want to get into his other feed. There was no testimony as to exactly how much of the feed was exchanged or destroyed.

In addition to the defendant’s testimony, four of defendant’s former customers testified that they had returned plaintiff’s product to defendant in exchange for more feed or for refunds. They testified that the feed was inferior to that they had been buying from defendant under the trade name used by plaintiff and that the complained of product was dusty, musky smelling, contained leaves and small sticks, and that their horses would not eat it.

While there is uncontroverted testimony that defendant’s customers returned plaintiff’s product to defendant, there is no evidence as to the quantity of feed returned. Further, witnesses testified that they have stopped doing business with defendant, but there is no evidence as to the amount of net profit defendant had derived from their business in the past or might have reasonably expected to derive in the future. We find no error in the conclusion of the Trial Judge that the evidence presented to him was insufficient for him to arrive at an amount that could be awarded for defective product or for loss of business. Canter v. Koehring Company, La., 283 So.2d 716 (1973), rehearing denied (1973).

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed, defendant and plaintiff in recon-vention to pay all costs.

AFFIRMED.


author: ELLIS, Judge:

text:
    Virgil KNIGHT v. Bertha Tynes KNIGHT.
    No. 10643.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Jim W. Richardson, Jr., Bogalusa, for appellant.

      Delos R. Johnson, Jr., Franklinton, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

Plaintiff Virgil Knight and defendant Bertha Tynes Knight were divorced by judgment dated April 6, 1973. The divorce was awarded to Mr. Knight on the ground of living separate and apart for more than two years. On the same date, the parties entered into a voluntary partition of the community.

On May 20, 1974, Mrs. Knight filed an alimony rule, and a motion to set aside the community settlement. From a judgment dismissing both claims, she has appealed. Mrs. Knight does not complain of the refusal of the trial judge to set aside the community settlement and we assume that claim to be abandoned.

The defense to the alimony rule is that Mrs. Knight was not free from fault in the separation, and that she is not in necessitous circumstances.

The evidence shows that Mrs. Knight is unemployed, unskilled, and partially disabled. Mr. Knight’s only complaint relative to her conduct during their marriage is that she constantly questioned him about his whereabouts when not at home. Apparently, this questioning would make Mr. Knight angry, and arguments of a severe nature would ensue.

Mrs. Knight justifies her questioning on the ground that Mr. Knight was seeing another woman, which he denies. There is, however, evidence in the record that Mr. Knight was seeing another woman, whom he married after his divorce from the defendant.

Article 160 of the Civil Code provides:

“When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
“1. The wife obtains a divorce;
“2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconcil-liation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
“3. The husband obtained a valid, divorce from his wife in a court of another state or country which had no jurisdiction over her person.
“This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries.”

Interpreting the foregoing article in Felger v. Doty, 217 La. 365, 46 So.2d 300 (1950), the Supreme Court said:

“[T]he word ‘fault’ as so used contemplates conduct or substantial acts of commission or omission on the part of the wife, violative of her marital duties and responsibilities, which constitute a contributing or a proximate cause of the separation and continuous living apart, the ground for the divorce.”

Considering the facts of this case in the light of the law, we are of the opinion that Mrs. Knight carried the burden of proving herself free from fault within the meaning of Article 160, supra.

The evidence shows that, in the community settlement, Mrs. Knight received a house and several outbuildings situated on seven and one half acres of ground, the household goods, and an automobile. She also received a 60% interest in 621/2 acres of ground, which was to be sold within a year of the divorce but which has not yet been disposed of. No value was placed on the house tract, where Mrs. Knight makes her home. There is no expert testimony as to the value of the 62/2 acre tract, although Mrs. Knight was said to have placed a $500.00 per acre value on it, and one of her sons thought it was worth more than that. The trial judge found that one who owns a home on seven and one half acres and an interest in property valued at $18,000.00 is not in necessitous circumstances under the law.

In Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), the court interpreted Article 160, supra, as follows:

“Article 160 makes no reference to the wife’s income and takes into consideration only her means of maintenance and whether they are sufficient or not. In other words, under Article 160, the Court is not concerned with the wife’s income as such but only with the means she has, including income, and whether they are sufficient for her maintenance. If they are not, then it may, in its discretion allow her this so-called pension and in doing so may look into the property and earnings of the husband in fixing the amount, which however, cannot exceed one-third of his income. It becomes necessary, therefore, to consider what is meant by the phrase ‘sufficient means for her maintenance’ in Article 160. Does it mean that the wife must be left with no means at all before she can claim alimony out of the property and earnings of the husband from whom she is divorced? In several cases in which Article 160 was under consideration, this Court has used the words ‘necessitous circumstances’ almost synonymously with the words ‘sufficient means’, comparing the status of the wife with that of the widow in necessitous circumstances under Article 2382 and 3252 of the Civil Code. It is not to be inferred from this that the wife must be practically destitute before she can act. In fact the language of Article 160 implies the opposite because it expressly stipulates that it is in case she has not sufficient means that she can apply for the alimony from which it follows that she may have some means.”

In that case, the court found that a wife with $20,000.00 in notes and bonds, and an income of $35.00 per month had sufficient means for her maintenance.

More recently, in Montz v. Montz, 253 La. 897, 221 So.2d 40 (1969), a wife with a $18,000.00 home, $6,000.00 in cash, a $6,000.00 stock equity and no income was found to have sufficient means.

We have reviewed the many intermediate appellate court decisions on the subject, and in none of them has a wife with an unencumbered home and $18,000.00 in other property been awarded alimony under Article 160.

We therefore conclude that Mrs. Knight has sufficient means for her support, under the authorities above cited.

In the Smith case, supra, the court further said:

“To what extent the wife should be made to use up her capital before applying for the alimony is a matter with which we are not concerned at this moment. If the time should come when she has reason to believe that she has not a sufficient amount left for her maintenance, she has the right to apply to the Court for alimony in a sum sufficient for that purpose. That would again become a question of fact left to the discretion of the trial judge for decision.”

The judgment appealed from is therefore affirmed, reserving unto Mrs. Knight the right to apply to the court for alimony when she no longer has a sufficient amount left for her maintenance. All costs are to be equally shared by the parties hereto.

AFFIRMED.


text:
    Grace SCRIMSHER, wife of v. Timothy TOLER, husband. Timothy TOLER v. Grace SCRIMSHER.
    Nos. 10629, 10630.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Grace Scrimsher, in pro per.
    Wilber J. Tauzin, II, Thibodaux, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

This is a suit for separation from bed and board on the ground of cruel treatment, filed by Grace Scrimsher, wife of Timothy Toler, against her said husband, consolidated with a suit by Mr. Toler against his wife for a divorce on the ground of adultery.

These cases came before the trial court on a rule for custody of the two' minor children born of the marriage, pendente lite. After trial thereof, judgment was rendered awarding custody of the children to Mr. Toler, and Mrs. Toler has appealed.

The record herein was lodged in this court on September 25, 1975. On October 14, 1975, Mrs. Toler’s counsel filed a motion to withdraw as counsel of record, which motion was granted. No briefs were filed on behalf of either party prior to the date the matter was fixed for argument. On that date, January 12, 1976, Mrs. Toler appeared, in proper person, and requested additional time within which to obtain counsel and file a brief. The court granted her until February 11, 1976, to do so, and granted appellee 15 days thereafter within which to file a reply brief.

As of March 5, 1976, no brief has been filed on behalf of either party. However, since Mrs. Toler did make a personal appearance in court when the case was called for argument, we shall consider her appeal.

The trial judge, for oral reasons assigned, found that there was a pattern of immoral conduct on the part of Mrs. Toler sufficient to render her unfit to have the custody of the children, who are seven and four years of age, and to make it in their best interest to grant custody to the father.

He found her to have been guilty of adultery with more than one man, and of bringing her gentlemen friends into the apartment where she and the children reside. He found that she often frequented bars in the company of men other than her husband, and frequently left her children with sitters of varying competence. He found that she permitted her brother to smoke marijuana in the presence of the children while he was residing in the apartment with them. He further concluded that there was no evidence that Mrs. Toler had changed or intended to change her mode of behavior.

The record in this case is voluminous and we have studied it carefully. We find that the factual conclusions of the trial judge are fully supported by the record. We find no abuse of his discretion in awarding custody pendente lite to the father. See Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

The judgment appealed from is therefore affirmed, at Mrs. Toler’s cost.

AFFIRMED.


text:
    Robert C. LANDESMAN v. FORD MOTOR COMPANY and Ford Motor Credit Company.
    No. 10617.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      Michael Osborne, New Orleans, for appellant.
    Peter A. Feringa, Jr., New Orleans, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, Robert C. Landes-man, appeals a judgment of the Twenty-Second Judicial District Court, dismissing his suit against the defendants-appellees, Ford Motor Company and Ford Motor Credit Company. We affirm.

On April 29, 1970, plaintiff entered into a written agreement to purchase the assets of a financially troubled Ford Motor Company dealership, Gall-Naman Ford, Inc., Slidell, Louisiana. Under the agreement, plaintiff was to incur all of the expenses and receive all of the profits, if any, that he made while operating the dealership. At that point, the plaintiff did not own a franchise to operate a Ford dealership, and to complicate matters, the defendants were not a party to this agreement.

However, plaintiff and the owners of Gall-Naman were aware that Ford and Ford Motor Credit, which supplies a line of credit to Ford dealerships, would require that plaintiff establish himself as the new dealer. Therefore, on May 5, 1970, the plaintiff and Michael E. Ñaman, one of the owners of Gall-Naman, met with a representative of Ford Motor Company, Don Ford, to arrange for plaintiff’s application for a franchise.

At that meeting plaintiff was advised by Mr. Ford that although the Ford Company could not prevent plaintiff from purchasing the assets of Gall-Naman prior to his obtaining a franchise in his own name, the Ford Company, nevertheless, viewed the transaction as irregular. Regardless, the plaintiff’s application was taken and Mr. Ford requested that plaintiff submit various reports and financial statements in conjunction therewith.

The plaintiff acknowledged that he was cautioned by Mr. Ford that he was dealing with Gall-Naman at his own risk and that there was no assurance that plaintiff would, in fact, be given a franchise.

In fact, two weeks after the May 5 meeting, plaintiff was notified that his bid was going to be rejected due to the inexperience of plaintiff’s proposed management team and also because of inadequate capitalization of the proposed corporation. In an effort to remedy these problems, Mike Ñaman was added to the management team and a revised corporate structure was submitted.

However, due to conflicts between the plaintiff and Ñaman, coupled with Na-man’s inability to obtain capital, plaintiff decided to eliminate his name from the proposed organization.

Plaintiff then added the name of Charles Gross to the list. Gross had prior experience as general manager of another agency and was sales manager for Gall-Naman at the time plaintiff purchased the assets of the dealership. Another revised capital structure was submitted in the first week of July, but the plaintiff’s application was formally rejected by the Ford Company on July 23, 1970. On July 27, the dealership closed its doors.

The record discloses that on May 1, 1970, in spite of the fact that the plaintiff was not an authorized dealer and had no guarantee of ever becoming one, and also in spite of the warnings by Don Ford to proceed at his own risk, the plaintiff began operating the dealership on his own. Plaintiff’s right to operate the dealership stemmed only from his agreement with Gall-Naman, as he had no contract with either of the defendants.

Pursuant to the agreement with Gall-Na-man, plaintiff received all credit for automobile sales and also the profits from the agency. The credits and profits were received from Ford Motor Credit Company in the form of checks payable to Gall-Na-man. Under their agreement, Gall-Naman would then endorse said checks over to plaintiff, who would deposit them in his own account. Therefore, the record is clear that during the entire period that plaintiff operated the dealership on his own, he knew or, as a reasonable man, should have known that Gall-Naman was the only entity recognized by either of the defendants. Plaintiff knew that whatever profits he received came from Gall-Naman and not from the defendants and that his only claim to said profits was through his contract with Gall-Naman.

In effect, plaintiff actually operated a Ford Motor Company dealership under a contract that existed between the former owners and Ford. He sold Ford automobiles which were on hand when he took over, and he also purchased other Ford automobiles from nearby dealers for resale. He purchased parts and performed repairs and even performed warranty work on eligible Ford products. Nevertheless, throughout the entire period that plaintiff occupied the dealership, neither Ford nor Ford Motor Credit had any dealings whatsoever with plaintiff. All business was transacted directly with Gall-Naman. As to Ford, plaintiff was no more than an al-terego of Gall-Naman.

The plaintiff paid cash for most of the parts and products bought from Ford since Gall-Naman’s credit had been severed by the company.

All credit for automobiles sold was issued by check from Ford Motor Credit to Gall-Naman, who, pursuant to their, agreement, endorsed them over to plaintiff.

In July when plaintiff’s application was rejected, the dealership closed its doors. At that point, approximately $7,000 in dealer’s profits resulting from the sale of automobiles by the plaintiff was applied to the indebtedness of Gall-Naman. According to the testimony of Mike Ñaman, he instructed Ford Motor Credit to make that entry to offset money he alleged was owed to him by the plaintiff.

At that point, plaintiff sued both Ford Motor Company and Ford Motor Credit, contending that he was due the $7,251 credited to Gall-Naman’s account. Additionally, he sued for $2,765.21 for finance participations; $5,138.73 for warranty work and policy claims; $543.39 for jobbing incentives; and $1,102 for payments plaintiff made on demonstrator automobiles owned by Gall-Naman. Credited against the total sued for was $4,440.93 which was owed to Ford Motor Company for parts. Presumably, the other monies due the dealership were also credited to the account.

The defendants filed a third party demand against Gall-Naman for indemnity against any loss they might suffer.

The plaintiff did not sue for failure to be awarded the franchise, nor did he sue Gall-Naman. As previously noted, plaintiff’s suit was dismissed.

On appeal the plaintiff argues that the defendants entered into an agreement with Gall-Naman whereby Ford was to transfer all credits and profits which were due Gall-Naman to the plaintiff. Plaintiff asserts this was a stipulation pour autri in his favor and should be enforced against the defendants to allow him recovery.

However, contracts for the benefit of others, or the stipulation pour autri, must be in writing and clearly express that intent, Fontenot v. Marquette Casualty Company, 258 La. 671, 247 So.2d 572 (1971). There was no such writing to evidence the express intent of these parties. Consequently, plaintiff’s argument is without merit.

Plaintiff’s contention that an implied or quasi contract existed between him and the defendants also lacks merit.

According to LSA-C.C. Art. 1816:

“Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under' circumstances that naturally imply a consent to such contract. * * * ”

In the instant case, the facts are such that we do not find that by their actions, the defendants impliedly consented to treat the plaintiff as an authorized dealer and thereby accord him all of the benefits thereof, such as payment of profits. In fact, plaintiff at all times was aware that the defendants would not deal directly with him, but rather that all transactions regarding the dealership were carried on with Gall-Naman. All the while, plaintiff knew the position of the defendants with regard to his occupancy of the dealership.

The plaintiff, nevertheless, argues that a quasi contract existed, founded on the principle of unjust enrichment, i. e., de in rem verso, citing Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). Plaintiff reasons that the defendants were enriched due to his efforts in selling automobiles and operating the dealership, to the extent of the sums prayed for in his petition. Since the instant suit is directed only against Ford Motor Company and Ford Motor Credit, this argument overlooks the fact that it was Gall-Naman who was really enriched in this case. Gall-Naman received the benefit of the credits due to the dealership. The defendants had no method by which to grant profits to an unfranchised individual such as the plaintiff.

His contract with Gall-Naman allowed plaintiff to make all the profit that was due the dealership, but when plaintiff entered the contract, he did not consider the fact that the dealership was in arrears on its payment to the defendants and consequently, the profits of the dealership would suffer until the arrearage was corrected. When the plaintiff’s request for a franchise was refused, Mike Ñaman, on behalf of the authorized dealership, requested that all profits and credits be given to Gall-Naman. By crediting that account, defendants were simply following the suggestions of its authorized dealer.

The long and short of the entire matter was correctly summarized by the trial judge in his Reasons for Judgment:

“The evidence does not show any basis for creating an obligation for Ford to Landesman because of Ford’s knowledge of the Landesman-Gall-Naman arrangement. In fact, the evidence shows to the contrary that representatives of Ford specifically warned Mr. Landesman that his dealings with Gall-Naman could not render any liability on the part of Ford. Actually they were very careful to carry on their dealings only with Gall-Naman.
“There might be a question as to liabilities between Gall-Naman and Landes-man, but as to the defendants before the court there is no basis for liability.” (Reasons for Judgment, Record, pp. 96-97)

Lastly, plaintiff claims that he paid $1,110.96 to Ford Motor Credit under duress and, accordingly, that he is entitled to a return of that sum. The payment was to correct Gall-Naman’s arrearage on interest and monthly notes on demonstrator and “floor plan” automobiles.

Plaintiff’s version of the facts shows that he was told by a “Mr. Harvill,” the area manager for Ford Motor Credit, that unless he paid the arrearage, he would not be given the franchise. Plaintiff, not wishing to lose the franchise on that account, paid the arrearage. This version of the facts was corroborated by plaintiff’s accountant, John Coerver.

However, the testimony of Mike Ñaman does not support plaintiff’s position. Ña-man testified that in the beginning before Coerver entered the picture, plaintiff, Ña-man and Harvill were discussing the change of ownership, and Harvill inquired about the past due account. In plaintiff’s presence, Ñaman informed Harvill that since plaintiff was assuming responsibility for all debts of the dealership, he would also pay the arrearage. Plaintiff did not object to the arrangement at that time.

However, at a later date, when Coerver informed the plaintiff that under his agreement with Gall-Naman he ought not to be liable for the past due accounts, plaintiff had a change of heart and decided he no longer wanted to pay the arrearage. It was at that point that plaintiff contends he was threatened with losing the franchise if he did not pay.

After this alleged threat, plaintiff paid the arrearage over the objection of Coer-ver. Since plaintiff had already consented to pay all the debts of the dealership, the threat was not his cause for paying. In reality, plaintiff paid because he was fulfilling his obligation to Gall-Naman to pay all of the debts of the dealership in exchange for the profits.

We also note that the trial judge did not find duress, since he disallowed plaintiff’s claim. In view of the evidence presented at trial, we cannot say that his factual conclusion was manifestly erroneous.

For the above and foregoing reasons, the judgment of the trial court is affirmed, at plaintiff-appellant’s cost.

AFFIRMED.

      . The facts reveal that the plaintiff attempted to incorporate with several other stockholders. However, the corporation never came into existence due to the failure to file the articles of incorporation with the Secretary of State as required by law. Therefore, the plaintiff instituted this suit in his own name.


text:
    Willie B. BOOKER v. Honorable Hickley WAGUESPACK, Commissioner of Department of Public Safety, Driver’s License Division.
    No. 10798.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      D. Bert Garraway, Baton Rouge, for appellant.
    James C. Dixon, Baton Rouge, for appel-lee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ON SHOW CAUSE ORDER

BLANCHE, Judge.

Plaintiff’s suit to reverse a suspension of his driver’s license by the Department of Public Safety was submitted to the trial court on a joint stipulation of facts. The matter was taken under advisement by the trial judge. Subsequently, his suit was dismissed by a judgment signed and filed on October 2, 1975. Since the matter had been taken under advisement, the plaintiff was entitled to notice of the signing of his judgment, and a certificate by the Clerk of Court reveals that the judgment was mailed to counsel for plaintiff and defendant on the same day. There was no application for a new trial, and on December 15, 1975, the trial court granted plaintiff a devolutive appeal. The appeal bond was ultimately filed on January 20, 1976.

We dismiss the appeal, on our own motion, for lack of jurisdiction for the reason that the appeal bond was not timely filed.

The Court of Appeal on its own motion is required to notice its lack of jurisdiction. LSA-C.C.P. Art. 2162, Uniform Rules of the Courts of Appeal, Rule VII, Section 5(c). An appeal is perfected on the timely posting of the appeal bond. LSA-C.C.P. Art. 2088. The delay for perfecting a devolutive appeal by the posting of an appeal bond, in accordance with the foregoing provisions and under the foregoing circumstances, is ninety days from the expiration of the delay for applying for a new trial, if no application has been timely filed. LSA-C.C.P. Art. 2087. Seven judicial days from the day after the signing of the judgment are allowed for timely application for a new trial. LSA-C.C.P. Art. 1974.

Since plaintiff did not timely apply for a new trial, the ninety-day period after the expiration of the delay for applying for a new trial expired on January 12, 1976. Thus, the appeal bond, having been filed on January 20, 1976, was eight days late.

For the above reasons, the appeal is dismissed, at the cost of plaintiff-appellant.

APPEAL DISMISSED.


text:
    Alice M. WASHINGTON and Maryella A. Washington v. Leonard KING and Leona Guidry King.
    No. 10694.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Thomas H. Watts, Baton Rouge, for appellants.
    L. Todd Gremillion, Baton Rouge, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by Alice M. Washington and Maryelia A. Washington, as plaintiffs, against Leonard King and Leona Guidry King, as defendants in solido, on a promissory note. The defendants filed an exception of prescription which was maintained by the Trial Court. The plaintiffs have appealed.

The evidence reflects that the promissory note, which was executed on June 27, 1963, was secured by a second mortgage on immovable property. The note represented the down payment for a home purchased by Marshall and Ethel Jones. The home was not purchased in their names and the note for the down payment and the balance of the purchase price was not executed in their names. Because of the inability of the Jones’ to secure credit, the defendants acted as nominal parties and as an accomo-dation to the Jones’ in the execution of the act of sale, the second mortgage note representing the down payment, and the first mortgage note representing the balance of the purchase price. The first mortgage note is not at issue in this lawsuit.

The second mortgage note was placed by plaintiffs with the City National Bank of Baton Rouge for collection. The bank was to accept payments on the note and deposit them to plaintiffs’ savings account.

Subsequent to the purchase of the here-inabove mentioned home defendants also purchased bedroom furniture from plaintiffs at a purchase price of $75.00. The plaintiffs testified that the payment of this $75.00 for the furniture was to be made at the collections department of the City National Bank of Baton Rouge in exactly the same manner as were made the payments on the second mortgage note. The second mortgage note provided for installments at the rate of $35.00 each month.

The supervisor of the collections department at the bank testified that the department received six payments from defendants which were credited to the account of the plaintiffs as follows :

July 29, 1963 .$35.00
September 5, 1963 . 35.00
October 8, 1963 . 35.00
April 6, 1964 . 70.00
July 9, 1964 . 35.00
December 3, 1968 . 75.00

. Due to the delinquency in making payments on the note this suit was filed on July 25, 1969. The defendants filed an exception of prescription maintaining that the payment of December 3, 1968, was in payment of the furniture which the defendants purchased from plaintiffs and not on the note and that, therefore, the five year prescription period accrued prior to the filing of the suit. The Trial Court maintained the plea of prescription finding that the December 3, 1968, payment for $75.00 was for the furniture, and, therefore, the last payment on the mortgage was on July 9, 1964, more than five years prior to the filing of this suit.

The plaintiffs-appellants contend that the Trial Judge was in error in imputing the payment in question. It is specifically contended that the payment should have been imputed, as a matter of law, under the provisions of LSA-C.C. art. 2166, to the prior mortgaged indebtedness rather than to the sale price of certain movables sold thereafter.

It is argued by plaintiffs-appellants that the issue before this Court is controlled by LSA-C.C. arts. 2163-2166. .It is argued that the defendant did not, as is provided by LSA-C.C. art. 2163, direct which debt the $75.00 payment of December 3, 1968, was intended to cover. Plaintiffs contend that since there was no receipt evidenced in this suit, LSA-C.C. art. 2166 must control, and since the secured mortgage note would be that debt which the debtors had the most interest in discharging, it necessarily follows that the December 3, 1968, payment of $75.00 must be imputed to the mortgage note.

The defendants argue that LSA-C.C. art. 2166 must be read in conjunction with art. 2165, and it is necessary that for imputation to take place, a receipt must be presented. Since no receipt has been presented into evidence, defendant argues that neither of these two articles are applicable.

Of the six payments above noted, all except the payment made on December 3, 1968, were either for $35.00 or a multiple thereof. The Trial Judge found that the $75.00 payment was for the furniture. Though his written reasons for judgment do not specifically state as such, we conclude that he found it the intention of the debtor when making the payment on December 3, 1968, that it be for the furniture. Since there was no other evidence presented to show otherwise, he held that the prescriptive plea was valid.

The Trial Judge viewed the evidence and listened to all of the witnesses, and we find nothing in this record, nor anything in the argument presented by the plaintiffs-appellants that will lead us to conclude that the factual conclusions arrived at by the Trial Judge are not as reasonable as those to be arrived at by this Court. We, therefore, find that the Trial Judge has committed no error. Canter v. Koehring Company, La., 283 So.2d 716 (1973), reh. den. (1973).

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by plaintiffs-appellants.

AFFIRMED.

      . LSA-C.C. art. 2163 provides :
      “The debtor of several debts has a right to declare, when he makes a payment, what debt he means to discharge.”
      LSA-C.C. art. 2164 provides :
      “The debtor of a debt, which hears interest or produces rents, can not, without the consent ,of the creditor, impute to the reduction of the capital any payment he may make, when there is interest or rent due.
      “Every payment which does not extinguish both the principal and the interest, must be imputed first to the payment of the interest.”
      LSA-C.C. art. 2165 provides:
      “When the debtor of several debts has accepted a receipt, by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputation to be made to a different debt, unless there have been fraud or surprise on the part of the creditor.”
      LSA-C.C. art. 2166 provides :
      “When the receipt bears no imputation, the payment must be imputed to the debt, which the debtor had at the time most interest in discharging, of those that are equally due; otherwise to the debt which has fallen due, though less burdensome than those which are not yet payable.
      “If the debts be of a like nature, the imputation is made to the debt which has been longest due; if all things are equal, it is made proportionally.”