author: SAMUEL, Judge. PER CURIAM.

text:
    Succession of Ophelia COCHRAN, wife of Lloyd H. Schultz.
    No. 9460.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 22, 1978.

      John M. Holahan, New Orleans, for plaintiff-appellant.
    Sidney C. Schoenberger, New Orleans, for defendant-appellee.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff, John M. Holahan, appeals from a judgment awarding him a fee of $5,400 for legal services rendered in the Succession of Ophelia Cochran, wife of Lloyd A. Schultz. He requests an increase to the sum of $10,853.30, representing 5% of the estate assets of $217,066.

In an olographic will dated May 12, 1972, Mrs. Schultz who, at the time of her death was separated from her husband as well as separate in property, named her husband executor, and Mr. Holahan as attorney. All of the assets are her separate property. They include immovable property, mineral rights, and a trailer park owned by her and managed by her husband. Special bequests were made to him, and the residuary legatees are three sisters and two nephews.

Mrs. Schultz died on August 17, 1973. Plaintiff filed a petition opening the succession one week later; the will was probated, and Mr. Schultz was appointed executor. No further action was taken in the succession proceedings until February 8, 1977 when plaintiff filed the herein petition for his fee.

The record reflects that a disagreement arose between plaintiff and Schultz over the interpretation of the will and assets includable in the succession, and plaintiff suggested that Schultz retain a personal attorney because of an apparent conflict of interest between Schultz in his personal capacity and in his duties as executor.

In 1975 Schultz’s personal attorney, after reviewing the succession record, wrote plaintiff for further information as to whether state and federal estate tax returns had been filed, and other actions, if any, taken in connection with the succession. Plaintiff had received one extension of time to file a federal estate tax return, and that return was filed thereafter (it is not clear when). The return listed administration expenses which included $5,426.55 as executor’s fee and $10,853.30 as anticipated attorneys’ fees.

Testimony further reflects that plaintiff had had three or four meetings with Schultz and other heirs and/or their attorneys to attempt to compromise conflicts in the will (and also apparently his fee), but no agreement was reached. It appears, however, that the heirs do not object to a 5% attorney’s fee, but expect that fee to cover the fees of any and all attorneys connected with, and the completion of, the succession proceedings.

In this court plaintiff contends he is entitled to the full fee since he is named attorney in the will. He relies on the jurisprudence as expressed in the cases of Succession of Falgout, La., 279 So.2d 679; Succession of Rembert, 199 La. 743, 7 So.2d 40, and Succession of Zatarain, La.App., 138 So.2d 163.

We do not disagree with these cases, or the jurisprudence as expressed therein. However, in order for the succession attorney to earn his full fee, unless he is prevented from doing so through no fault of his own, the law contemplates he will take all necessary and appropriate steps to bring the succession to its ultimate conclusion. Here plaintiff has not completed his work and the record does not reveal he was prevented from doing so.

This succession involves a business currently being operated and presents some complex questions which may or may not be subject to compromise. It is not one which can be completed with the filing of elementary pleadings. If the executor has not filed an accounting as alleged by plaintiff, then as attorney for the succession he could and should have petitioned the court to order the executor to do so. Much still remains to be completed. For a period of four years after the testatrix’s death and the opening of her succession, plaintiff has taken no further steps to bring the succession to its ultimate conclusion other than those outlined above.

We cannot say the trial court abused its discretion in awarding plaintiff the sum of $5,400.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In this matter plaintiff-appellant has filed an application for rehearing in which he alleges our opinion is in error in stating the decedent “at the time of her death was separated from her husband as well as separate in property”. Having reexamined the record, we find some testimony which would indicate Mr. and Mrs. Schultz were separated from bed and board at the time of her death. However, as the statement complained of may be in error and as the question of whether the parties were in fact separated, by judgment or otherwise, at the time of the decedent’s death is immaterial to the issues involved in this appeal, we delete from our opinion any suggestion that the parties were separated other than in property.

As we adhere to our original opinion and decree in all other respects, the application for rehearing is refused.

REHEARING REFUSED.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Joseph Lee LAVERGNE v. WESTERN COMPANY OF NORTH AMERICA, INC., et al.
    No. 9431.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.

      S.Michael Cashio, New Orleans, for plaintiff-appellant.
    Watson, Blanche, Wilson & Posner, David W. Robinson and George K. Anding, Jr., Baton Rouge, for Zigler Shipyards, Inc. and The Fidelity & Casualty Co. of New York, defendants-appellees.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

This is an appeal from a judgment granting defendants’ motion to strike plaintiff’s prayer for a jury trial. The matter previously has been-before this court on the issue of whether or not the suit was filed timely. On that occasion we held the admiralty doctrine of laches allowed the plaintiff to maintain his suit against defendants even though it was filed after passage of the Louisiana one year prescriptive period. However, we also maintained the defendants’ exception of vagueness and remanded to the district court for further proceedings.

The pertinent facts alleged are that plaintiff was injured September 29, 1971 aboard a barge while working as an equipment operator for its owner, Western Company of North America, Inc. On November 27,1973, he filed a suit for damages in state court against his employer and its insurer under the Jones Act and against Zigler Shipyards, Inc. and its insurer, The Fidelity and Casualty Company of New York, under the general maritime law, alleging Zigler had designed and built the defective shipboard steps from which he fell.

Plaintiff compromised his Jones Act claim, and his only remaining claim is the admiralty action against Zigler Shipyards and its insurer. On remand, plaintiff amended his petition by specifically setting forth in detail the defects which he contends made the steps unsafe and rendered the vessel unseaworthy. In his amended petition he reiterated the prayer of his original petition for a trial by jury. The sole question presented in this appeal is whether plaintiff may have a trial by jury in this state court action.

The United States Constitution provides for federal jurisdiction of all admiralty and maritime cases. Congress supplemented this constitutional provision by vesting exclusive admiralty jurisdiction in the federal district court, “saving to suitors” all other remedies to which they might be entitled in state courts. The jurisprudence has interpreted this clause to mean a litigant who possesses a claim enforceable by libel in personam in admiralty, may also bring suit, at his election, by ordinary action in a state court or on the civil side of a federal court. It is generally accepted in American jurisprudence that rules of admiralty law displace rules of local law in actions brought under the saving to suitors clause in non-admiralty courts.

In the case of Pope & Talbot, Inc. v. Hawn the United States Supreme Court made the following statement:

“ * * * [Ajction is a maritime tort, a type of action which the Constitution has placed under national power to control in ‘its substantive as well as its procedural features * * Panama R. Co. v. Johnson, 264 U.S. 375, 386, 44 S.Ct. 391, 393, 68 L.Ed. 748. * * * ”

Additionally, in Garrett v. Moore-McCor-mack Co., Inc., the United States Supreme Court made the following statement regarding application of maritime law to actions in state court:

“It must be remembered that the state courts have concurrent jurisdiction with the federal courts to try actions either under the Merchant Marine Act or in personam such as maintenance and cure. The source of the governing law applied is in the national, not the state, governments. If by its practice the state court were permitted substantially to alter the rights of either litigant, as those rights were established in federal law, the remedy afforded by the state would not enforce, but would actually deny, federal rights which Congress, by providing alternative remedies, intended to make not less, but more secure.” (footnote omitted).

These quotations seem to state an unequivocal mandate that admiralty law, in both its substantive and procedural aspects, be adhered to when applied by a state court possessing concurrent jurisdiction under the saving to suitors clause.

Under certain circumstances admiralty and maritime claims are triable by jury. When admiralty claims are joined to a claim on the law side of a Federal District Court (for example, federal questions such as the Jones Act or diversity cases), all issues both maritime and non-maritime are triable to a jury on demand. On the other hand, two Federal District Courts, sitting in Louisiana, held that where a claim is brought only under the general maritime law in those courts, and there exists no other independent basis of federal civil jurisdiction, the matter may be tried only by the judge without a jury.

Reference to Louisiana law is inconclusive on the question. In Istre v. Diamond M. Drilling Company, the Third Circuit made an exhaustive review of both state and federal jurisprudence and concluded on rehearing that the Louisiana prescriptive statute, being procedural in nature and also the law of the forum, should prevail over the doctrine of laches in maritime matters. Writs were granted by the Louisiana Supreme Court, but the matter was compromised while the writs were pending. In an earlier hearing in the case now before us we arrived at the contrary conclusion and established the supremacy of the maritime doctrine of laches over the Louisiana prescriptive statute. The question of whether the right to a trial by jury is a procedural rule of the forum, which should be applied in state courts even in cases solely under the general maritime law, is still open. The Third Circuit later made a determination that a jury trial is not available in state court when it is not joined with some other cause of action entitled to trial by jury, such as the Jones Act. However, this decision was rendered moot when the Louisiana Supreme Court granted writs, refused to recognize a Jones Act release given by another party, and remanded to the Court of Appeal for consideration of the matter under both the Jones Act and the general maritime law.

Since there is no uniformity in Louisiana regarding the application of procedural rules of the forum in admiralty matters, we base our decision on a more fundamental concept. The rule is generally recognized that even though this court possesses the right of review of both law and fact, in maritime matters the admiralty law prevails and this court is powerless to redetermine facts found by the jury even though it may reach a different conclusion or be of the opinion that a contrary result is more reasonable. The clear import of these decisions is that federal maritime procedure is controlling, at least in procedural matters which go to the heart of the nature of the ultimate factual determination. A jury trial, like the scope of appellate review, is also a procedural matter which goes to the heart of the nature of the ultimate factual determination. Therefore, we are of the opinion the maritime law, which here would not permit trial by jury, should prevail with regard to a litigant’s right to trial by jury in our state courts under the saving to suitors clause.

In addition, to paraphrase in part and quote in part from one of defendants’ briefs, it would be manifestly unfair (and unfairness basically is a violation of due process) to permit the plaintiff, simply by filing his suit in a state rather than a federal court to avail himself of the full benefits of this admiralty claim under federal law (as he has done by successfully insisting on the application of the admiralty doctrine of laches) without accepting all the basic federal requirements. He cannot be heard to say: “I want laches so as to avoid the clear application of prescription; I want appellate review only on the law and not on the facts; I want contributory negligence only in reduction of the damages but not as a bar to recovery; I don’t want application of the doctrine of assumption of the risk” [all contrary to our state law] and then say: “But I also want a trial by jury” [which would be available under our state law but would not be available in a federal court].

We consider this result consistent without previous holding in this case (a holding now final insofar as this court is concerned) and with the principles to which the United States Supreme Court gave at least lip service in Hawn and Garrett.

For the reasons assigned, the judgment appealed from is affirmed, and this case is remanded to the district court for further proceedings consistent with law and with the views herein expressed.

AFFIRMED AND REMANDED.

        . Lavergne v. Western Company of No. America, Inc., La.App., 346 So.2d 239.

      . 46 U.S.C.A. § 688.

      . United States Constitution, Art. 3, § 2.

      . The pertinent statute, as now worded, is 28 U.S.C.A. § 1333, which provides: “The district courts shall have original jurisdiction, exclusive of the courts of the States of:
      (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”

      . See Rounds v. Clover Port Foundry & Machine Co., 237 U.S. 303, 35 S.Ct. 596, 59 L.Ed. 966 (1915); The Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638, 20 S.Ct. 824, 44 L.Ed. 921 (1900); Leon v. Galceran, 78 U.S. (11 Wall.) 185, 20 L.Ed. 74 (1871).

      . Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942); Chelentis v. Luckenbach S.S. Co., Inc., 247 U.S. 372, 35 S.Ct. 596, 59 L.Ed. 966 (1918); Southern-Pacific Company v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917).

      . 346 U.S. 406 at 409, 74 S.Ct. 202 at 205, 98 L.Ed. 143.

      . 317 U.S. 239, 245, 63 S.Ct. 246, 251, 87 L.Ed. 239.

      . Fitzgerald v. U. S. Lines Co., 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720; Haskins v. Point Towing Co., 395 F.2d 737 (3rd Cir. 1968).

      . Callahan v. Cheramie Boats, Inc., 383 F.Supp. 1217 (E.D.La.1974); Brock v. Baroid Division of National Lead, 339 F.Supp. 728 (W.D.La.1972).

      . La.App., 226 So.2d 779.

      . See Benoit v. Fireman's Fund Ins. Co., La. App., 347 So.2d 269.

      . See Benoit v. Fireman’s Fund Ins. Co., La., 355 So.2d 892.

      . Compare Istre v. Diamond M. Drilling Company, supra, note 11, with Lavergne v. Western Company of No. America, Inc., supra, note 1.

      . Guilbeau v. Calzada, La.App., 240 So.2d 104; Ferdinandtsen v. Delta Marine Drilling Company, La.App., 235 So.2d 641.

      . Trial by jury is not a matter of right in Louisiana in “. . . cases where a jury trial is specifically denied by law.” LSA-C. C.P. Art. 1733(5).


author: GULOTTA, Judge.

text:
    Richard W. FREEMAN, Jr., Louis M. Freeman, Louis V. de la Vergne and Hughes J. de la Vergne, II v. G. T. S. CORPORATION.
    No. 9404.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Herschel L. Abbott, Jr., Edward B. Poitevent, II, New Orleans, for plaintiffs-appellants, Richard W. Freeman, Jr., Louis M. Freeman, Louis V. de la Yergne and Hughes J. de la Vergne, II.
    William W. Rosen, New Orleans, for defendant-appellee, G. T. S. Corp.
    Before GULOTTA, STOULIG and GARRISON, JJ.
   GULOTTA, Judge.

Plaintiffs, lessors, appeal from the dismissal of their claim for unpaid rent during a nine-month unexpired term of a written lease when the rented premises were vacated by the lessee and left unoccupied and not subleased. In answer to the appeal, defendant lessee seeks reimbursement of the amount paid in rent during a 13 month occupancy, moving expenses, damages for breach of contract and losses to furniture and equipment caused by leaks in the roof and ceiling. Defendant’s demands were asserted in a reconventional demand in the trial court and dismissed.

In written reasons for judgment, the trial judge stated:

“G. T. S. Corporation “enjoyed” its occupancy not at all. Where a landlord allows conditions to prevail rendering the premises totally unsuited for their intended purpose, it has breached its warranty to the tenant, even though the conditions are beyond the control of the landlord. The reconventional demand was dismissed only because the tenant, all too patiently, continued to occupy the premises and having acquiesced in the situation, is bound to pay rent for that period.”

It is lessors’ contention that the trial judge erred; 1) in concluding the leased premises were unsuited for their intended use; 2) in terminating the lease before expiration of the lease term and relieving lessee from any obligations under the lease; and 3) in failing to find lessee had breached the terms of the lease by failing to give notice of the leakage problems to the lessors as provided in the lease.

As pointed out by plaintiff, the lease provides that any notice to be given to lessor shall be made in writing addressed to the lessor and mailed by registered or certified mail at the place where the rent is required to be paid. Although, admittedly, lessee failed to notify lessors in writing of the porous and leaking condition of the roof as required by the lease, nevertheless, we conclude lessors had notice, well in advance of the date lessee vacated the premises, of the leaking condition of the roof which made the premises unsuitable for occupancy.

The property is owned by four persons. The designated manager-owner testified that he did not receive any complaints from defendant by certified mail, however he did receive, from the real estate agent collecting the rents from lessee, oral complaints made to the agent by the lessee. These complaints were made within four months of the commencement of defendant’s occupancy. The three-year lease commenced on June 1, 1969 and terminated on May 31, 1972. Complaints were made to the agent sometime before November, 1969. Defendant vacated the premises in July, 1970. According to the manager, plaintiffs’ repairman was sent out to determine and correct the cause of the problem each time complaints were made.

In a November 17, 1969 letter from lessors’ rent-collecting agent to defendant, the agent admonished defendant for withholding payment of rent despite defendant’s complaints of the leaking roof condition. Furthermore, the manager-owner stated that defendant’s complaints which were conveyed to the rental agent, had been communicated to him and that he had orally notified the owners. The rent collecting agent estimated that he had received two or three oral complaints about the premises. He acknowledged that the building was not a very good one and that it was “porous”.

Defendant’s office manager recalled making several calls and several memos in 1969 regarding complaints of the leaky condition of the roof. He added that on four or five occasions in July and in September, October and November, 1969, he had told the rental agent of the leaks in the roof. The office manager further testified that, though repair attempts were made by the lessors, the leaks were never corrected.

It is clear from the evidence that lessors, through oral complaints, had notice of the defects in the roof. Under the circumstances, we do not conclude that the lessors are relieved of their obligation to maintain the premises in a condition to serve the use for which they are intended merely because written demand of the notice of defects was not given. See Anthony v. United States Fidelity and Guaranty Company, 312 So.2d 689 (La.App. 4th Cir. 1975).

In brief and in argument, plaintiffs point out that even though oral complaints of the leaking roof may have been made in the early months of the lease, no further complaints were made between November, 1969 and July, 1970. According to lessors, lessee’s failure to notify them of the continuing defective condition of the roof (which lessors could have corrected, if notified) and lessee’s abandonment of the premises in July, 1970 constituted a breach of the lease. We reject this contention.

The record does not support lessors’ claim. Although Prentiss C. Havens, former office manager of defendant-lessee, testified he could not remember any specific complaints from November 1969 until July 1970, he also stated that perhaps one or two had been made during that period. Furthermore, lessors’ maintenance man stated, in deposition, that he had made repairs during this seven month period. Notwithstanding one of the lessor-owners testified that repairs were made satisfactorily and “subsequent” leaks were not reported, Havens stated that the leaks had never been repaired and had progressively gotten worse. Further, in a July 7, 1970 letter to the lessors’ rental agent, Havens indicated G. T. S.’ (lessee’s) intention to terminate the lease on July 31, due to the leaking roof. The record does not indicate that any repairs were performed by the owner in July, 1970 as a result of this letter. This evidence indicates that the problem was a continuous one. Under these circumstances, we conclude notice was adequate.

We reject also plaintiffs’ contention that the trial judge erred when he concluded the rented premises were unsuited for their intended purpose. Not seriously disputed by lessors is the fact that serious leaks existed in the roof allowing water to enter into the rented premises resulting in ceiling damage and falling plaster. A tenant who occupied the premises before defendant complained of serious leaks which caused extensive flooding in the building. The existence of these leaks was acknowledged in an April 19,1968 letter from plaintiff’s agent to this tenant. The manager explained, however, that correction of the problem was difficult because of debris thrown on the roof from two adjoining hotels which clogged the drains, thereby allowing water to settle on the roof; and because tenants in a hotel occupying rooms on the floor immediately above defendant’s space permitted shower stalls to overflow, resulting in water damage on the ceiling of the occupied premises. Plaintiff’s maintenance man indicated that on several occasions water had collected on the roof to a one-foot depth. The manager-owner indicated that the weight of the water had caused beams around the skylight to break.

Defendant’s employee in charge of maintenance of equipment stored in the building stated he had first noticed leaks around September or October, 1969. He stated that defendant’s employees were required to move equipment around the premises to avoid water damage from leaks in the ceiling. These leaks, he claimed, were never repaired. Furthermore, this witness explained that the building could not be used for microfilming, as planned by defendant, because of the lack of a sufficient dry area in the building. Moreover, photographs introduced into evidence showed the deterioration of the ceiling caused by water damage and the presence of plaster on the floor of the premises.

Although the lease required the lessors to maintain the roof of the leased premises in good order and repair, plaintiffs’ efforts to correct the leaking roof condition were to no avail. The trial judge properly concluded the premises were totally unsuited for occupancy by the tenant and properly terminated the lease.

We reject also plaintiffs’ contention that lessee had the option either of making the repairs and deducting the costs from the rent or filing suit to cancel the lease. Although, LSA:C.C. 2694 affords the lessee the right to make repairs, this codal article is not applicable where the leased premises are unfit for their intended use. Under such circumstances, the lessee is justified in abrogating the lease by vacating the premises and the lessor cannot recover for rent due during the unexpired term of the lease subsequent to the lessee’s abandonment. Goldstein v. Stone, 12 La.App. 702, 127 So. 73 (Orl.1930); Gayle v. Auto-Lec Stores, Inc., 174 La. 1044, 142 So. 258 (1932); Keenan v. Flanigan, 157 La. 749, 103 So. 30 (1925).

We find no error also in the dismissal of the lessee’s reconventional demand. Defendant is not entitled to reimbursement for rent paid during the approximate fourteen months of occupancy. Long established is the rule that a tenant is not entitled to recover the rent paid as damages for breach of the lease by the lessor when the tenant used the premises during the period which the rent was paid. See Finnin v. Balter, 168 La. 527, 122 So. 716 (1929); Gamble v. New Orleans Housing Mart, Inc., 173 So.2d 219 (La.App. 4th Cir. 1965); Reed v. Classified Parking System, 232 So.2d 103 (La.App. 2d Cir. 1970), writ refused, 255 La. 1098, 234 So.2d 194 (1970); Friendly Finance, Inc. v. Cefalu Realty Investment, Inc., 303 So.2d 558 (La.App. 1st Cir. 1974).

Finally, we conclude, as apparently did the trial judge, that lessee has failed to establish by a sufficiency of evidence the amount of water damage resulting from the leaks. It is a plaintiff’s burden to prove with legal certainty every item of damages claimed. Culpepper v. Natchitoches Parish School Board, 333 So.2d 453 (La.App. 3d Cir. 1976), writ denied, 338 So.2d 289 (La.1976). This burden must be borne by competent evidence showing the extent of the damage and plaintiff’s own uncorroborated personal estimate of the value of the loss is insufficient. See Cloney v. Travelers Insurance Company, 253 So.2d 83 (La.App. 1st Cir. 1971), writs refused, 259 La. 871, 872, 253 So.2d 212 (1971); Saulter v. Cousin, 294 So.2d 251 (La.App. 1st Cir. 1974).

Evidence of damage offered by lessee consisted only of estimates of lessee’s maintenance employee. No independent estimates of repair to damaged property or replacement costs were submitted. Lessee simply failed to introduce sufficient and competent evidence upon which the trial judge could reliably base a damage award. See Goynes v. St. Charles Dairy, 197 So. 819 (La.App. 1st Cir. 1940). Accordingly, the judgment is affirmed.

AFFIRMED.

      . Defendant’s claims in reconvention were as follows: $6,000 reimbursement of rent; $2,500 loss occasioned by water damage and cost of moving; and $5,000 damages for breach of contract.

      . LSA-C.C. art. 2692 provides:
      Article 2692. Obligations arising from nature of contract
      “Art. 2692. The lessor is bound from the very nature of the contract, and without any clause to that effect:
      1. To deliver the thing leased to the lessee.
      2. To maintain the thing in a condition such as to serve for the use for which it is hired.
      3. To cause the lessee to be in a peaceable possession of the thing during the continuance of the lease.”

      . Although acknowledging that water entered the building, lessors argue that no structural defect existed but that stopped-up plumbing in the second floor of the premises, occupied by another tenant as a hotel, caused leaks in the ceiling and that trash-clogged drains or “scuppers” on the roof of the building caused water to build up on the roof and leak into the first floor of the premises rented by G. T. S.

      . Art. 2694. Lessee’s right to make repairs upon lessor’s failure.
      “Art. 2694. If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuse or neglect to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.”


text:
    Kenneth and Magali JOHNSON v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY.
    No. 9397.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.

      Foye L. Lowe, Jr., Baton Rouge, for defendant-appellant, State of Louisiana, Dept, of Public Safety.
    Gordon Hackman, Boutte, for plaintiffs-appellees.
    Before GULOTTA, STOULIG and GARRISON, JJ.
   GULOTTA, Judge.

The State through the Department of Public Safety, appealing from the judgment enjoining the Department from revoking or suspending petitioners’ driving privileges, vehicle registration and license, contends the trial judge erred in concluding that evidence was not “conclusive enough” that petitioners are “legally liable” for damages arising from an automobile accident. The trial judge relied on the last paragraph of LSA-R.S. 32:873 which provides that the Commissioner “shall never suspend any registration of any owner of a motor vehicle involved in an accident where under the laws of this state such owner is not legally liable for damages arising from such accident”.

At the hearing on the preliminary injunction, Mrs. Magali Johnson testified that on a foggy, damp day, while driving a car owned by her husband Kenneth Johnson, she unavoidably rearended an automobile which came into the roadway in front of her and also struck the left side of an automobile coming in the opposite direction on a two-lane highway. A police report entered into evidence supports the testimony of a rearend collision. Litigation growing out of the accident was pending at the time of the hearing of the preliminary injunction.

In Cross v. Waguespack, 308 So.2d 321 (La.App. 4th Cir. 1975), we stated that the test to be applied in the hearing to determine the propriety of the Department’s suspension order (where the driver is nonin-sured and no security is posted) is whether a “reasonable possibility” of liability exists on the part of that driver for damages resulting from the accident. In the Cross case, the petitioner (noninsured) failed to stop at a stop sign. We concluded in Cross that the Department properly required the uninsured motorist to post security or surrender the license.

When we apply the “reasonable possibility of liability” test to the evidence in our case, we conclude the Department properly required the posting of security or suspension. See LSA-R.S. 32:872.

The trial judge erroneously interpreted the last paragraph of LSA-R.S. 32:873 to mean that the Department shall never suspend driving privileges unless evidence is “conclusive enough” to show that the uninsured owner is “legally liable” for damages arising from the accident. The test as established by Cross v. Waguespack, supra, is not “conclusive enough” but “reasonable possibility” that the uninsured is legally liable for damages.

Accordingly, the judgment of the trial court restraining and enjoining the Department of Public Safety from revoking or suspending the driving privileges, vehicle registration and vehicle licenses belonging to Kenneth and Magali Johnson until a determination of their liability for damages is made in the pending litigation is reversed and set aside. The order of the Department of Public Safety requiring the “suspension” of “driving and registering privileges” pending posting of security is reinstated. Costs to be paid by plaintiffs.

REVERSED AND RENDERED.

      . The suspension was in accordance with the Motor Vehicle Safety Responsibility Law (LSA-R.S. 32:851 et seq.) which provides that under certain conditions the driving privileges of an uninsured motorist who is involved in an accident and fails to post security may be suspended. Kenneth Johnson and his wife Magali filed the petition for injunction. A copy of the decision of the Dept, of Public Safety in the record indicates the “driving and registering privileges” of Johnson have been revoked. No mention is made of Mrs. Johnson. The court’s judgment refers to the privileges of both petitioners. The wife was driving a vehicle owned by her husband at the time of the accident.


text:
    Otis FAZANDE v. CONTINENTAL GRAIN COMPANY and the Travelers Insurance Company.
    No. 9617.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.

      Leonard A. Washofsky, Hess & Washof-sky, New Orleans, for plaintiff-appellee, Otis Fazande.
    Montgomery, Barnett, Brown & Read, Charles A. Boggs, Terry J. Freiberger, New Orleans, for defendants-appellants, The Travelers Ins. Co. and Continental Grain Co.
    Hailey, McNamara, McNamara & Hall, Laurence E. Larmann, Metairie, for defendant-appellant, Aetna Cas. and Surety Co.
    Hammett, Leake, Hammett, Hulse & Nelson, Domonic J. Gianna, Christovich & Kearney, R. K. Christovich, New Orleans, for defendants-appellants, Aetna Cas. and Surety Co., Continental Ins. Co. and American Motorists Ins. Co.
    Before GULOTTA, STOULIG and GARRISON, JJ.
   GULOTTA, Judge.

In this workmen’s compensation case, defendants appeal from awards of compensation benefits, medical expenses, penalties and attorney’s fees based on a finding of permanent and total disability resulting from an occupational pulmonary disease. In answer to the appeal, plaintiff seeks an increase in the amount of the attorney’s fees and an award for frivolous appeal.

It is defendants’ contention that although plaintiff is unable to return to his former job in a grain elevator he failed to show that he is unable to “engage in any gainful occupation” whether or not the same or a similar occupation as that in which he was employed at the time of the injury or disease. According to defendants, because plaintiff is able to engage in a sedentary or semi-sedentary job, he is able to be gainfully employed and therefore is not permanently and total disabled. Defendants also argue the trial judge erred in excluding evidence relating to plaintiff’s ability to engage in a sedentary occupation and expert evidence relating to the availability of sedentary jobs. They further claim the judge erred in his determination that defendants were arbitrary and capricious in denying plaintiff’s claim. Alternatively, defendants contend that if plaintiff is permanently and totally disabled the disability occurred from an accumulation of grain dust during the fifteen years of employment at the grain elevator; that the disability resulted not from an occupational disease but from a series of accidents (traumatic allergic reactions resulting in respiratory problems); and that prior insurers during the fifteen year term of plaintiffs employment are liable in solido for the time, during plaintiff’s employment, coverage was extended by each insurer.

We find no merit to these contentions, accordingly, we affirm.

PERMANENT TOTAL DISABILITY

The medical evidence is virtually un-contradicted that plaintiff suffered an allergic reaction to grain dust causing severe occupational obstructive pulmonary disease. Also uncontradicted is the fact that plaintiff is unable to return to his former occupation at the grain elevator. In this connection, plaintiff testified that because of shortness of breath and weakness, he has not worked, either at the grain elevator or elsewhere, since he discontinued employment on May 1, 1976. Although defendants’ expert indicated in an affidavit in support of a motion for summary judgment that the inhalation of grain dust amounted to a series of accidents over an extended period of time causing insult and trauma to the respiratory system, in his testimony he classified plaintiff’s condition as an occupational pulmonary disease.

Because of his disability, plaintiff is unable to return to his former occupation or to work of a similar character, and clearly his condition would place him into the permanently totally disabled category under the earlier statue and jurisprudence. However, in a 1975 amendment permanent total disability was defined as an inability to engage in “any gainful occupation for wages . . . ” In the instant case, because of medical testimony that plaintiff could engage in a sedentary or semi-sedentary occupation, defendants claim, plaintiff is not permanently and totally disabled.

Although one of the medical experts indicated plaintiff could be considered for sedentary or semi-sedentary job in which the physical requirements were extremely limited, this expert added that plaintiff cannot be considered for any type of sustained physical work. This witness explained further that plaintiff might be suitable for a job “sitting at a gate” or “checking individuals or papers” but that an elevator operator’s job would be difficult because it involves standing. A fair evaluation of this expert’s testimony, upon which defendants rely, is that it is unlikely that plaintiff can be restored to sufficient pulmonary reserve to do steady physical work, however, “. . .it may be possible to rehabilitate him for semi-sedentary or sedentary employment.” Another medical expert indicated that plaintiff was significantly impaired from doing any kind of meaningful manual labor and that he is “very significantly” impaired from gainful employment. This expert added that plaintiff would be severely handicapped from doing any manual labor or fast walking other than sedentary work involving slow-paced exertion. Furthermore, even defendants’ medical expert indicated that a person prone to flu and bronchitis (plaintiff has exhibited susceptibility to bronchitis) might have problems of absenteeism which might make him unemployable. Plaintiff testified that he has a problem doing “practically everything”. Fazande stated that even when sitting down for an extended period of time he gets out of breath and feels a tightness in the chest.

The question whether a claimant is disabled within the meaning of the compensation law is a factual one. Tyler v. Owens Illinois, Inc., 289 So.2d 893 (La.App. 4th Cir. 1974); Hamilton v. Georgia Pacific Corp., 344 So.2d 400 (La.App. 1st Cir. 1977). The trial judge, in oral reasons, stated:

“I find him to have occupational disease as defined by that Section which makes him totally and permanently disabled and very possibly excluded from any possible employment in the present job market.”

Our evaluation of the evidence leads to a conclusion, as reached by the trial judge, that plaintiff is suffering from an occupational disease as defined under LSA-R.S. 23:1031.1; is unable to “engage in any gainful occupation”; and is permanently and totally disabled.

EVIDENTIARY RULINGS

Although the trial judge might have hastily restricted, to some extent, evidence of plaintiff’s ability to be gainfully employed in jobs other than those of a similar character or nature as his former employment and might have discouraged expert testimony on the availability of jobs of a light or sedentary nature, we fail to find any prejudice to defendants’ rights. The evidence in our case reflects that this plaintiff is unable to engage consistently in any gainful occupation. Under the circumstances, evidence of the availability of sedentary jobs, as it turned out, has questionable value.

PENALTIES AND ATTORNEY’S FEES

Plaintiff became unemployed on May 1, 1976. The employer’s insurer had receipt of notice of plaintiff’s claim on August 17, 1976. The medical reports on plaintiff’s condition were received by the insurer on October 28, 1976. A “notice of loss” from the employer was received by the insurer on August 25,1976. Suit was filed in January, 1977. On October 21, 1976 the insurer was furnished with a report from West Jefferson Hospital dated June 29 and 30, when plaintiff was hospitalized for his pulmonary problem, which included a report from the treating physician that plaintiff was totally disabled. Other medical reports were furnished to defendant at that time.

Under the circumstances, we conclude defendants were aware of plaintiff’s severe pulmonary problem causing his disability. Because of the uncontradicted evidence that Fazande was unable to return to his former occupation, he would have been entitled to, at least, partial disability benefits under the 1975 amendment. See LSA-R.S. 23:1221(3); LeBlanc v. Commercial Union Assurance Co., supra; Kilbourne v. Armstrong, supra. Defendant, however, made no payments whatsoever to plaintiff. Accordingly, we cannot say the trial judge erred in his finding that the denial of benefits was arbitrary and capricious. Plaintiff is entitled to statutory penalties and attorney’s fees.

The trial judge, in consideration of the effort of plaintiff’s attorney on the trial level and in contemplation of preparation of an appeal, awarded $5,000.00 in attorney’s fees. The evidence considered relating to the effort expended by plaintiff’s counsel on both court levels, we cannot say the award is either excessive or inadequate. We deem it reasonable compensation for all the legal services performed, including those in our court.

We reject the argument, however, that plaintiff should be granted an additional award for defendant’s frivolous appeal. The delay occasioned by the appeal is evidence of the insurer’s arbitrary and capricious failure to pay plaintiff’s claim. We have affirmed the award for penalties and attorney’s fees. Defendant’s failure to pay benefits pending appeal is not properly the subject of a frivolous appeal but is the subject of penalties and attorney’s fees.

PRO-RATA CONTRIBUTION OR SOLIDARY OBLIGATION

Finally, we reject Continental Grain’s insurer’s alternative argument that if plaintiff is entitled to benefits then the previous insurers who provided coverage to plaintiff’s employer during the fifteen years of his employment are liable for their pro-rata shares or in solido with defendant. In this connection defendant relies on the testimony of Dr. Ziskind that the inhalation of grain dust amounted to a series of “insults” or “microtraumas” and argues that a series of accidents or injuries over this 15-year period caused plaintiff’s disability.

Defendants claim that Jennings v. Louisiana and Southern Life Insurance Co., 290 So.2d 811 (La.1974) and Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976) support a finding that inhalation of foreign matter is an injury or accident. It is true that the Jennings court recognized silicosis as an “injury” or “accident” as defined in the disability insurance policy, but the court also recognized silicosis as an occupational disease. The result reached by the trial court in our case is compatible with the Jennings case. In Parks the claimant had inhaled fabric dust and lint in her work in a garment factory (for an approximate period of five months) which aggravated her pre-disposition toward respiratory difficulty and caused her to contract acute bronchitis from which she subsequently recovered with no ill effects. The court held that she had sustained an “accidental injury” entitling her to benefits during her illness and recovery. In denying her permanent disability benefits, however, the court stated that her inability to return to work in a garment factory was not related to the accident, but rather to her pre-exist-ing respiratory difficulty. In our case the disabling occupational disease resulted from inhalation of grain dust over a 15-year period. No pertinent factual similarity exists between Parks and our case.

In support of the contention that all the insurers are solidarily liable, defendants cite several cases holding that where a claimant’s disability is caused by a combination of two or more accidents, the different insurers at the times of the contributing accidents may be held solidarily liable for compensation benefits. Lachney v. Employers Commercial Union, 337 So.2d 624 (La.App. 4th Cir. 1976); Scott v. Hartford Accident and Indemnity Co., 302 So.2d 641 (La.App. 3d Cir. 1974); Carter v. Tri-State Insurance Co., 259 So.2d 433 (La.App. 2nd Cir. 1972); Fontenot v. Great American Indemnity Co., 127 So.2d 822 (La.App. 3d Cir. 1961). Though we do not quarrel with this settled jurisprudence, it is clear that the cited cases deal with distinct, separate accidents with acute effects. In Lachney, Scott and Fon-tenot two distinct work-related accidents caused back pain and led to the disabling back condition. In Carter, plaintiff’s back problem was brought about by three incidents: the shifting of heavy weight on plaintiff while lifting a beam, a fall from a ladder, and heavy lifting. The “mircro-trauma” in our case has no such immediate, acute effect as the accidents in the cited cases. Rather, plaintiff’s inhalation of grain dust resulted in scarring of the lung and an allergic reaction over a long period of time. Clearly plaintiff’s claim is based on occupational disease and not a series of definable accidents. The jurisprudential rule relied on by defendant, therefore, has no applicability to the instance case.

Defendants also argue that even though plaintiff’s disease may have become disabling during the period of Travelers’ coverage, the medical evidence indicates that plaintiff had respiratory problems as early as 1963 and that x-ray examination in 1975 (before the effective date of Travelers’ policy) shows permanent scarring of plaintiff’s exposure to grain dust. Defendants contend therefore, the insurers are solidarily liable. In this connection defendants rely on Hanlon v. Sline Industrial Painters, Inc., 358 So.2d 700 (La.App. 3d Cir. 1978); Writ refused.

In Hanlon plaintiff worked for one employer for approximately thirteen years (with extremely heavy exposure to silica dust for four years and continuous exposure to a lesser degree for an additional five years) during which time he contracted silicosis. Thereafter plaintiff worked for three days for another employer during which time his silicosis became disabling. The question before the court was which employer should pay compensation benefits. Holding that plaintiff had an occupational disease, the court concluded that the employer for whom he was working when he contracted the disease was liable and not the employer for whom he was working when his disease became disabling.

Hanlon, however, is clearly distinguishable from our case. In Hanlon the employee became disabled after working for his last employer three days. In our case plaintiff has worked for one employer at all times. Furthermore, the medical evidence in our case establishes that defendant Travelers provided coverage to plaintiff at the time he became disabled (February 26,1976) and on last day of the last exposure (plaintiff’s last day of work, May 1, 1976). The pertinent provisions of the Travelers policy state:

IV. Application of Policy
“This policy applies only to injury (1) by accident occurring during the policy period, or (2) by disease caused or aggravated by exposure of which the last day of the last exposure, in the employment of the insured, to conditions causing the disease occurs during the policy period.”

When we consider these provisions relating to the application of the policy together with the medical evidence which establishes the date of disability and date of last exposure we conclude, as did the trial judge, that the disability from the disease “occurred within the term of the comp policy written by Travelers Insurance Company and that they alone are solely responsible for the payment of compensation under that policy”.

Accordingly, we affirm.

AFFIRMED.

      . Plaintiff was employed by defendant from April 19, 1961 through May 1, 1976. He started working as a laborer and tractor driver pushing grain on barges, but during the last four years he was a “bindex” operator filling bins with grain.

      . LSA-R.S. 23:1221(2) provides:
      “1221. Temporary, permanent, or partial disability; schedule of payments. Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
      ******
      (2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

      . Continental Grain and its insurer, Travelers, third partied the prior insurers seeking that each be cast for its pro-rata contribution or be held solidarily liable with defendants for any judgment awarded to plaintiff. Plaintiffs employment extended from April 19, 1961 through May 1, 1976. The workmen’s compensation insurers during that time were as follows: Aet-na Casualty & Surety Company (1961-1968); Continental Insurance Company (November 1, 1968-October 1, 1970); Kemper Insurance Company (American Motorists Ins. Co.) (October 1, 1970-July 1, 1975) and defendant insurer, The Travelers Ins. Co. (July 1, 1975-July 1, 1976).

      . Dr. Martin M. Ziskind, an expert in pulmonary diseases.

      . Prior to the 1975 amendment the pertinent workmen’s compensation statute, LSA-R.S. 23:1221(2) defined total permanent disability as an inability “to do work of any reasonable character.” In Wright v. National Surety Corporation, 221 La. 486, 59 So.2d 695 (1952) and Morgan v. American Bitumuls Company, 217 La. 968, 47 So.2d 739 (1950) the court interpreted the statute to mean work of a similar nature or character.

      . See LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir. 1977), writ refused, 351 So.2d 174 (La.1977); Kilbourne v. Armstrong, 351 So.2d 802 (La. App. 1st Cir. 1977).

      . Dr. Ziskind.

      . Dr. Morton Brown, an internist specializing in pulmonary diseases.

      . In this connection, Dr. Ziskind stated:
      “The big problem in his employment would be can he show up to work every day. And, if his history—Actually I think as it was given, was that he wasn’t prone to cold, to lower respiratory infections, but those would be the prime factors in preventing him from appearing at work and would of course determine his usefulness on the job—-That was actually the reason why he terminated his employment with the elevator. He was away at least half of the time.”
      This physician further stated that if plaintiff were prone to colds and flu, “the ups and downs of his bronchitis would make him unemployable”.

      . In oral reasons for judgment, the trial judge stated:
      “I fix attorney’s fees in the amount of five thousand dollars taking into consideration in figuring that figure that the matter will, without question, be appealed and said fee is to reflect at least the preparation of whatever is necessary in connection with the appeal. I am not talking about the submission of briefs, argument, appearances and so forth on appeal.”

      . An examination of the policies of the prior insurers reveals that these policies contain the same restriction on coverage for occupational disease i. e., that the last day of the last exposure to the condition causing the disease must occur during the policy period.


author: STOULIG, Judge. GULOTTA, Judge,

text:
    Paul J. BOUDREAUX v. LOUISIANA BOARD OF REVIEW, DEPARTMENT OF EMPLOYMENT SECURITY, State of Louisiana, Administrator of the Department of Employment Security, State of Louisiana and Vinson Guard Service.
    No. 9436.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.
    Writ Granted Jan. 12, 1979.

      White, Fray & White, Robert H. Fray, Gretna, for plaintiff-appellant.
    James A. McGraw, Baton Rouge, for defendants-appellees.
    Before GULOTTA, STOULIG and GARRISON, JJ.
   STOULIG, Judge.

This is an appeal from a judgment denying Paul J. Boudreaux unemployment compensation. The claim stems from termination of employment by claimant from Vinson Guard Service, where he was employed as a security guard from March 4, 1976 through June 9, 1976. At the time he was hired, Boudreaux was advised he could be assigned to various locations by his employer including posts at Avondale and Good Hope, Louisiana. From March 4 through March 28, 1976 he was assigned to guard duty in Avondale. After March 28, 1976 until plaintiff voluntarily left his job in June, he was sent to a post in Good Hope, a distance of 24 miles from his home.

In his application for unemployment compensation benefits, Boudreaux stated he left his job because “ * * * it was too far away. My car is in bad shape & getting over to St. Charles Parish was too expensive * * After an administrative hearing his claim was disallowed on this basis:

“Your left your job because of transportation problems. Transportation to and from work is the responsibility of the employee. You quit your job for personal reasons.
“You left your job without good cause connected with the employment.”

After exhausting administrative remedies and completing an unsuccessful appeal to the district court, plaintiff again asserts before us he is entitled to unemployment compensation benefits because he left his job for good cause. R.S. 23:1601(1) provides for disqualification “if the administrator finds that he has left his employment without good cause connected with his employment.”

At the conclusion of the administrative proceedings and for the first time at the level of judicial review, the administrator has indicated the agency joins in with the plaintiff and agrees there is merit in his claim.

At first blush it would appear that the administrator’s acquiescence in the plaintiff’s claim should end the litigation because the language of R.S. 23:1601 indicates determination of eligibility or disqualification rests with the administrator. However, once the administrator has been cast in an adversary role throughout the administrative proceedings, it would appear that adoption of the plaintiff’s cause on judicial review cannot terminate the claim. In addition to the employee and the administrator, the employer also has an interest in the outcome because a decision may affect his future unemployment compensation insurance rate. R.S. 23:1531 et seq.

At this stage, our appellate review is limited to questions of law if the record before us supports the factual conclusions of the agency. R.S. 23:1634; Immel v. Brown, 143 So.2d 156 (La.App.3d Cir. 1962). The agency concluded Boudreaux was responsible for furnishing his own transportation to and from work; therefore, his decision to terminate his employment was not based on good cause.

We agree. It is true that unavailability of transportation to and from work or transportation at a disproportionate expense might in certain cases constitute just cause for leaving a job. In Haskett v. Brown, 165 So.2d 25 (La.App.2d Cir. 1964), an employee at a Mansfield lumber company was hired by a foreman of the employer with the understanding that the foreman would give him a ride to and from work every day at no extra cost to him. After several years the foreman was discharged and plaintiff had no transportation. It was determined he left his job for good cause when he lost his transportation because the employer’s agent had made the furnishing of transportation to the employee a condition of his being hired. In the instant case, plaintiff was not promised transportation when he was hired and he knew in advance he could be assigned to a post in Good Hope.

In Brown v. Brown, 153 So.2d 190 (La. App.2d Cir. 1963), the court reversed an adjudication of disqualification because the employee was promised certain working conditions when he was hired that his employer failed to fulfill. Of course, the distinguishing factor here is that plaintiff knew exactly where he could be assigned when he accepted the job.

A Supreme Court decision cited by appellant in support of his position is Bateman v. Howard Johnson Company, 292 So.2d 228 (La.1974). In that case the Court approved benefits to a worker who quit her job because the transportation costs were prohibitive; however, in reaching this result, the Court found as a fact she was not aware of the expense of transportation before accepting employment. In the case before us, plaintiff admits he was aware he could be assigned to Good Hope before accepting the job.

We conclude therefore that he terminated his employment without good cause connected with his employment and is disqualified from eligibility for unemployment compensation benefits.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

GULOTTA, J., dissents with written reasons.

GULOTTA, Judge,

dissenting.

I respectfully dissent.

R.S. 23:1601(1) provides, in pertinent part, that an individual shall be disqualified for benefits if the administrator finds that he has left his employment without good cause. R.S. 23:1601(3)(a) provides, inter alia, that the .administrator shall consider, in determining whether or not any work is suitable for an individual, several factors among which is “. . . the distance of the available work from his residence.”

Our employee, a resident of Gretna, was employed as a watchman in Good Hope, Louisiana. He discontinued his employment “because of transportation.” His testimony was that his car was in “bad shape” and he was required to drive each day twenty-four miles from home to work and twenty-four additional miles return from work to home, or a total of forty-eight miles. Furthermore, our claimant was earning $2.36 per hour.

I am of the opinion, under these circumstances, that plaintiff’s employment was unsuitable and that he had left his employment for good cause. Significant also is the fact that the administrator, as pointed out by the majority, has indicated that the agency joins in with the plaintiff and agrees there is merit to his claim. I would reverse the judgment appealed from and award benefits to the plaintiff.


author: STOULIG, Judge.

text:
    Azam Sadremo HAREPOUR v. A. C. COLLINS FORD OF NEW ORLEANS, INC., and Fred Forte.
    No. 9474.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.

      Wayne M. LeBlanc, Metairie, for plaintiff-appellee.
    William J. Branum, Metairie, for A. C. Collins Ford of New Orleans, Inc., defendant-appellant.
    Before GULOTTA, STOULIG and GARRISON, JJ.
   STOULIG, Judge.

Plaintiff, Mrs. Azam Sadremo Harepour, obtained a $2,000 judgment against A. C. Collins of New Orleans, Inc. (Collins), an automobile dealer; and Fred Forte, one of its former salesmen, in a suit for reimbursement of money paid toward the purchase of a car that was never delivered. The trial court dismissed Collins’ third party claim. Only Collins appealed seeking a reversal of the adverse judgment on the main demand and, alternatively, praying for a third party judgment against Forte.

Plaintiff’s claim stems from an agreement to buy a used car from Forte, a salesman for Collins. She first visited the Collins dealership on October 28, 1976, and through this salesman learned she could not qualify for a loan to buy a new car. Forte told her he would sell her a used car, and on October 28 she gave him a check for $400; on November 1 a second check for $300; and on November 14 a check for $2,300. At Forte's instruction all three checks were made payable to him. To realize additional money for the car, plaintiff gave Forte a Persian rug which she testified had been appraised for $1,200 and which he stated he sold for $200. On November 19, 1976, five days after plaintiff gave Forte the last check, his employment with Collins was terminated. Plaintiff testified she first learned that Collins disclaimed any knowledge of the transaction after Forte left the agency.

Forte acknowledges receiving the money, selling the rug and not delivering an automobile to plaintiff as a vendee. This defendant contends plaintiff invested this money in his used car business, which he established after leaving Collins, and that he loaned her several automobiles while he was in business with her, one of which she wrecked.

The trial court rejected this version with good reason. Forte at one point stated some two weeks had elapsed after he met plaintiff before she was aware of his used car business and the checks written to Forte were all issued within 17 days of the first meeting of plaintiff and the salesman.

After reviewing the record, we conclude Mrs. Harepour paid $3,200 to Forte under the assumption she was purchasing a used car from the dealer. After the agency disclaimed responsibility, she tried to recover her money from Forte. To this effect she and Forte signed a document dated January 23, 1977 in which he acknowledged an indebtedness of $2,535, which he promised to pay in weekly installments of $126.75. In addition Forte obligated himself to transfer to plaintiff title to a 1971 Toyota. At the time of the signing, Forte issued a series of cheeks in the sums of the weekly installments that were postdated. Mrs. Harepour attempted to negotiate three of the checks, all of which were returned with the N.S.F. designation. The agreement concluded, “ * * * both parties mutually agree that all are released when payments are made in full.”

Appellant contends the trial court erred in imposing liability on Collins for the contractual dealings of Forte with plaintiff because this transaction was outside the scope of any real or apparent authority Collins had conferred on Forte. There is no dispute that Collins did not authorize this transaction. By its cross-examination of plaintiff, a graduate student at the University of New Orleans, Collins attempted to demonstrate that she was sufficiently conversant with business practices in this country to be aware that Forte was dealing for his own benefit and not for Collins’.

Collins’ liability rests on a LSA-C.C. art. 3000 basis. We quote:

“Powers granted to persons, who exercise a profession, or fulfill certain functions, or doing any business in the ordinary course of affairs to which they are devoted, need not be specified, but are inferred from the functions which these mandataries exercise.”

For the trial judge to have rendered a favorable decision for plaintiff casting Collins in judgment, he would have had to conclude that her version of the transactions was true. There is nothing in the record to warrant our finding that this conclusion is manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Therefore, plaintiff’s assumption that she was dealing with a representative of the Collins agency when she entered that dealership to purchase a car was quite reasonable. In the ordinary course of affairs, a purchaser would infer that a salesman employed in an automobile dealership was authorized to sell cars for the owner. Even though Forte acted beyond the scope of his authority and actually worked against his employer’s best interest by diverting a Collins customer’s attention to his personal sale, if one was ever intended, there was nothing to indicate to plaintiff she was not dealing with a Collins representative and she could rely on the apparent authority of Forte. See Radiofone v. Oxford Bldg. Services, etc., 347 So.2d 327 (La.App. 4th Cir. 1977); and Dart Distributors, Inc. v. Foti Enterprises, Inc., 271 So.2d 705 (La. App. 1st Cir. 1972). Thus we conclude that Collins, having conferred the apparent authority on Forte to act in its behalf, is liable for the wrongdoings of its ostensible agent and is solidarily liable with him for the loss plaintiff occasioned.

Appellant further argues that if it was originally liable with Forte, the subsequent agreement between plaintiff and Forte was a novation whereby Forte assumed the debt and entered into an agreement to liquidate it. While it is true that novation by substitution of a new debtor may occur without the concurrence of the former debtor (LSA-C.C. art. 2191), the creditor must expressly declare an intent to discharge the former debtor. In the instrument presented as the basis of the alleged novation, the creditor stipulates the release of all parties liable will only occur when full payment has been received. It is doubtful that Forte honestly consented to payment when he issued the postdated checks because none of them were honored by the bank upon which they were drawn. But even if he had, full payment never materialized and thus the condition upon which debtor discharge hinged never happened.

Finally, appellant urges us to render a third party judgment against Forte. Clearly it is entitled to this award.

For the reasons assigned, the judgment appealed from is amended to cast A. C. Collins of New Orleans, Inc., and Fred Forte as solidary obligors and to award A. C. Collins of New Orleans, Inc., a judgment against Fred Forte in the sum of $2,000 with interest and costs it is required to pay to plaintiff. In all other respects the judgment is affirmed, costs of this appeal to be borne by appellant.

AMENDED AND AFFIRMED.

      . The defendant is designated in the petition as A. C. Collins Ford of New Orleans, Inc., and in the judgment as A. C. Collins of New Orleans, Inc.

      . Plaintiff alleged an indebtedness in excess of $2,000 and stated she reduced her demand to that amount to fall within the jurisdiction of the First City Court of New Orleans.

      .At the time plaintiff filed her application for credit to purchase a new car she deposited a $50 check payable to Collins. The check was never negotiated or returned.


text:
    Irvington J. EPPLING v. JON-T CHEMICALS, INC.
    No. 9639.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.

      Thomas S. Loop, Metairie, for plaintiff-appellant.
    Porteous, Lee & Mustakas, G. Thomas Porteous, Jr., Gretna, for defendant-appel-lee.
    Before GULOTTA, STOULIG and GARRISON, JJ.
   STOULIG, Judge.

Plaintiff, Irvington J. Eppling, has appealed a summary judgment dismissing his suit against defendant, Jon-T Chemicals, Inc., for $2,125, representing the balance due for real estate appraisal services. We quote that portion of plaintiff’s petition that is pertinent to the issue before us:

“2.
Petitioner rendered an appraisal of defendant’s terminal, known as Jon-T Terminal located in Marrero, Louisiana, for the purpose of estimating its market value for a prospective purchaser. The defendant agreed to pay petitioner the sum of Eight Thousand Five Hundred and No/100 Dollars ($8,500.00) for such service and did, in fact, pay initially the sum of Four Thousand Two Hundred Fifty and No/100 Dollars ($4,250.00).
“3.

Defendant made a second payment by check of Two Thousand One Hundred Twenty-Five and No/100 Dollars ($2,125.00), on the back of which defendant placed the words,

‘By the endorsement hereof, Payee releases and discharges Maker from any liability or sums claimed to be owed by Maker to Payee.’

Petitioner crossed out the legibility to these words and added the words.

‘The endorsement of this check by Payee does not constitute a release of any claims that Payee has against the Maker hereof.’ ”

The affidavits and attachments filed in connection with the motion for summary judgment establish the contract price at $8,500, payment of $4,250 in advance and tender of $2,125 as full settlement of the balance. The record reflects plaintiff, scheduled to complete the appraisal of defendant’s Marrero property in early April 1977, did not in fact deliver the report until May 9, 1977. The lateness in performance is significant for our purpose only to point out the source of disagreement after the contract was negotiated; we need not consider whether the delay was justified.

On August 10, 1977, defendant tendered the $2,125 check described in the petition with the quoted restrictive endorsement. Plaintiff, before negotiating the check, scratched out the maker’s notation and substituted his own.

The trial court concluded the doctrine of accord and satisfaction was applicable and dismissed the suit. We agree. The elements of the defense are present in that: (1) there was a disputed claim between the maker and the payee; (2) the debtor tendered a check for less than the sum claimed by the creditor; and (3) the creditor accepted the tender by negotiating the check.

As this court pointed out in Charles X. Miller, Inc. v. Oak Builders, Inc., 306 So.2d 449 (La.App. 4th Cir. 1975), estoppel by accord and satisfaction is grounded in basic contractual principles of offer and acceptance. See also Linda Mercantile Corporation v. Bowers, 230 So.2d 302 (La.App. 1st Cir. 1969).

Thus before it can be concluded that a creditor accepted a lesser amount in compromise of his larger claim by negotiating a check, it must be apparent from the language of the restrictive endorsement that the money tendered is for the purpose of fully liquidating the creditor’s claim. In the Miller case, we further pointed out that the payee’s unilateral action in changing or altering the restriction does not change the legal effect of his negotiating the check. The negotiation is deemed an acceptance of the maker’s offer.

Appellant concedes there are similarities between Miller and this case but relies on the quoted language from Pieri v. DiMaggio, 331 So.2d 59, 60 (La.App. 4th Cir. 1976), to distinguish it:

“For there to be estoppel by accord and satisfaction, there must be: (A) an unliq-uidated or disputed claim; (B) tender by the debtor; (C) acceptance of the tender by the creditor. Charles X. Miller v. Oak Builders, Inc., 306 So.2d 449 (La.App. 4th Cir. 1975). Furthermore, the creditor must understand that if payment is accepted, the claim will be deemed to have been paid in full. Antoine v. Elder Realty Co., 255 So.2d 625 (La.App. 3rd Cir. 1971).” (Emphasis added.)

The emphasized language states the creditor must understand the restrictive endorsement if he is to be bound by the doctrine of accord and satisfaction. This does not mean the creditor’s statement “I did not understand” would be sufficient to destroy the efficacy of the endorsement.

The test is whether the language is sufficiently clear to apprise the negotiator of the maker’s intent to tender the amount in full settlement. In Pieri, the court concluded the endorsement did not adequately communicate the maker’s intent to fully liquidate all claims with tender of the particular check. In this case the payee’s action in scratching out the restrictive endorsement written by the maker strongly suggests he was fully aware of the nature of the tender. However, even if he were not, we hold the endorsement is stated in such a way that any reasonable reader would fully understand the check was tendered in full payment of all claims. Therefore, plaintiff accepted the offer to compromise by negotiating the check.

For the reasons assigned, the judgment appealed from is affirmed at plaintiff’s cost.

AFFIRMED.

      . In defendant’s letter of August 10, 1977 transmitting the check in question are the following statements: “Enclosed you will find a check for $2,125.00 in settlement of our outstanding balance on the assignment covered by our agreement dated March 10, 1977. Jon-T declines to pay any additional fee as the report was not delivered within the time frame called for in the agreement * * *. Your acceptance of this check constitutes an acknowledgment of payment in full of the outstanding amount claimed to be owed by us to you. * * * ”


author: BOUTALL, Judge.

text:
    Michael WALTER v. Jack VALLEY, Del Thompson, George Malochee and Emile J. Bischoff and American Motorist Insurance Company.
    No. 9182.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    James L. Bates, Jr., New Orleans, for Michael Walter, plaintiff-appellant.
    Wood Brown, III, New Orleans, Trial Atty. for Snap-On Tools, Inc., defendant-appellee; Montgomery, Barnett, Brown & Read, New Orleans, of counsel.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This suit for damages for personal injury arises under the theory of products liability. Plaintiff Michael Walter was injured in an accident at his place of employment when an accessory tool he was using on a pneumatic power tool flew off and struck him in the eye. He sued several fellow employees and officials of Standard Paint & Varnish Company, his employer, and Snap-On Tools, Inc., the manufacturer of the tool. All claims were settled except against Snap-On Tools, Inc., and after trial the trial judge rendered judgment in favor of Snap-On, dismissing plaintiffs suit. He appeals.

The uncontested facts are that Walter was working as a truck driver for Standard Paint, and when not busy driving a truck, would engage in general duties, one of which was to assist in maintenance of the equipment. On August 27, 1974, he was assisting in the removal of a radiator, and was attempting to loosen some difficult nuts from it. The tools he uses are furnished by the employer, and in this case he looked into the tool box of the mechanic supervisor, Del Thompson, and obtained this pneumatically powered impact wrench, together with a universal joint and socket wrench. When he attempted to loosen the nut with these tools, the universal joint and socket flew off, striking him in the face and causing the subsequent loss of an eye.

The issues in this case are two-fold: Was the use of the tool a proper one which could be reasonably anticipated, and was there a duty on the manufacturer to warn a prospective user of the danger of such use?

The basic principles of product liability are set out in the case of Weber v. Fidelity & Casualty Insurance Company, 259 La. 599, 250 So.2d 754 (1971), and we quote at 250 So.2d 755:

“[1, 2] A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect. [Citations omitted.]
“[3] If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.” Citations omitted.

These principles, as they apply to the issues before us, have been further explained in the case of Penn v. Inferno Manufacturing Corporation, 199 So.2d 210 (La. App. 1st Cir. 1967) at page 221:

“[8] It is submitted that the laws of other jurisdictions as well as the laws of the State of Louisiana place a duty upon a manufacturer to know all of the dangerous qualities of the thing which he manufactures and he is responsible to make those dangers known to parties who purchase this product and this is so even though the product itself is not inherently dangerous.”

In the recent case of Chappuis v. Sears Roebuck & Company, 358 So.2d 926 (La. 1978), the Supreme Court has further explained the duty of the manufacturer to take reasonable steps to warn a prospective user. We quote at page 930:

“[5] Absolute liability upon a manufacturer whose product is useful, traditional, but which might become dangerous in some circumstances must be distinguished from the obligation here involved. There may be many tools or other products which become dangerous for normal use in certain conditions. But when the danger is known to the manufacturer and cannot justifiably be expected to be within the knowledge of users generally, the manufacturer must take reasonable steps to warn the user.”

The court held in that case that the failure to inform the user of the danger is “fault” referred to in Civil Code Article 2315 as the failure to warn falls below the reasonable standard of care. With these principles in mind we have proceeded to an examination of the facts.

In our case the accident occurred because Walter used loose-fitting manual tool accessories (universal joint and socket) on a pneumatic power impact tool instead of power tool accessories and when he operated the tool, the universal joint and socket flew off, striking him.

The trial judge has afforded us a detailed set of reasons for judgment in which he discussed the testimony of the various parties and reached a conclusion. On the whole, we agree with his analysis of the evidence and set no need to give our own detailed analysis. Instead, we simply quote his:

“The plaintiff’s evidence against Snap-On Tools does not preponderate. The highlights of this evidence are:
“(1) Del Thompson owns two impact wrenches, one with a half-inch drive and the other with a one-inch drive. He has impact sockets and accessories for the larger one, but not for the smaller wrench.
“In one place, Thompson testified that he knew impact accessories were available, knew they were different from manual accessories, but he did not know why. He had (sic) been advised of the need for them, he would have bought impact accessories for this wrench when he bought the wrench. On cross he admitted that he knew impact sockets and accessories were available, but did not buy them because he could not afford them. Further, though in error, he knew the impact accessories were black and manual accessories were chrome-colored. These chrome accessories looked unsafe to him when he used them, but he took the chance of using them anyway. ‘They were wobbly when used before.’
“He would have stopped plaintiff using this wrench, had he known he was using it, because it was not the correct tool for the job.
“The plaintiff testified that he is not a licensed mechanic but he likes to work on his own car, and he has some of his own tools. He primarily, with the help of his brother built a Corvette completely. He would have done the job himself, but it would have taken him longer. He has tuned old engines, worked on brake systems, changed motors and transmissions. He is, therefore, skilled enough to know what tools should be used for mechanic’s work. He had used this particular wrench before. The retaining ring on the front end of the spindle was not on it when he used this wrench this time.
“On this occasion, he complained to Thompson and to Bischoff that something was wrong with this damn thing; sockets kept falling off it and he thought there should have been something to hold them on with. He told them it was dangerous without that retaining ring being on it, but Thompson told him the wrench was made that way to facilitate mechanics with greasy hands to change sockets easily. He noticed the wrench had no locking device and this disturbed him.
“Expert Witnesses : A. J. Scardino, Jr. accepts the manufacturer’s suggestions or instructions as to design and use and users of impact wrenches should use the property (sic) (impact) attachments on the tool. His primary interest as safety engineer is to see to it that the tool is used according to the manufacturer’s recommendations. This tool was not. Impact accessories have a locking device that prevents them from pulling apart or flying off. The improper use of this tool was the cause of this accident. When injured, the plaintiff was not using this wrench in the normal, intended manner of use. There are numerous manufacturers of impact wrenches and none of them have warnings printed on the tool. The Snap-On catalogue is in evidence (as Defense Exhibit 7) and does not use the word safety in its warning, therefore it is not a “safety warning”. The bold black print does say use correct sockets. Page 10 of the catalogue does use and warn of safety requirements, so he was wrong.
“L.L. Denson said his investigation showed that this tool should not be used with manual accessories, but rather with impact accessories. The hallmark of American Tool manufacturers is to achieve interchangeability of parts, but in this particular case this is bad. The whole industry is wrong here. The manufacturer is not responsible for the abuse of a tool nor for its improper use. He did not test this tool; did not check or examine competitors’ products either; he has never used an impact wrench himself. This manufacturer complied with ANSI (National standards). He is a mechanical engineer and he knows ANSI standards are set with the help of the American Mechanical Engineers Society and that the standards committee is made up with both manufacturers and users present and in mind.
“Raymond G. Knudsen was the engineer with Snap-On Tools who helped design this wrench. He is a graduate chemical engineer, but he has long, long years of drafting and mechanical and design engineering experience. He is present chairman of Committee B107 — i of ANSI’s Board. He has been on that National Board since 1965 and his committee is made up of representatives of manufacturers and users. He designed the Snap-On ring for the end of the drive shaft or spindle on this wrench. He insisted on it being included in the design as a safety retainer device. He tested this wrench model, using the wrong accessories as did the plaintiff. With the ring on, the universal joint held on but the socket came off. ANSI standards call for 6 pounds minimum pull-off. His test showed 8 — 20 pounds. This is not a very powerful fall, (sic) on the contrary it is rather low-powered in the industry. The plaintiff was not making proper application of the tool; this, plus the fact that the accessories he used were worn down and without the Snap-On ring. These factors caused this accident. There has never been another accident like this one reported to the company since it began manufacturing this tool.
“Such evidence causes the Court to conclude that the plaintiff has not carried the burden of proof required of him in this case. In the plaintiff’s case against his fellow employees (settled), his proof is adequate, as is his proof of the nature and extent of his injuries and damages. However, in his case against Snap-On Tools, plaintiff’s evidence does not preponderate.”

The facts clearly show that the accident occurred as a result of improper use of the tool. The pneumatic power tool itself did not cause the injury, but the improper use of hand tool accessories on the power tool caused the injury. The tools actually used, along with the accessories supposed to be used on the power tool, were placed in evidence. The power tool now has a steel split ring retainer on the end of the drive shaft (device used to hold the accessories in a snug position on the drive shaft and keep them from slipping off), and the plaintiff testified that there was no split retainer on the tool when he used it. Plaintiff also testified that the universal joint and sockets fit very loosely on the drive shaft (they were worn from prior use) and our examination indicates this is so. He was so concerned that he sought the advice of his superiors as to whether or not he should use the tool in that condition. Fault for the missing retainer ring and condition of the tools would be attributable to Walter’s employer, not to the manufacturer. We conclude, as did the trial judge, that this was improper use of the tool.

However, plaintiff’s argument before us goes beyond that issue. He contends that potential users of the tool should have been warned of the dangers inherent in using accessories and sockets other than those designed specifically for use on this tool. He notes with some justification that the drive shaft of the power tool ends in a one-half inch square drive, and that numerous hand tool accessories and socket wrenches also use a lh inch square drive. He contends that a user of such a tool may use manual attachments as he did without knowing of the danger of such application, and that this danger could have been prevented by the manufacturer with appropriate warning.

It goes without saying that sufficient warnings of this possibility would tend to reduce the recurrence of such accidents. Similarly, the construction of the power tool with some unique power drive such that hand fittings would be impossible to fit thereon, would certainly prevent such an occurrence from happening again. But our inquiry is based upon the imposition of a reasonable duty to warn potential users of hazards, and is not an absolute guaranty as noted in the above quoted law. The evidence in this case is to the effect that this pneumatically powered impact tool is designed for use by professional mechanics who are expected to have some knowledge of their application. These tools are not sold in stores, but only by salesmen representatives licensed by Snap-On. The use of the tool is dependent upon an adequate compressed air supply, and can only be used economically by persons who would use it sufficiently for its limited purposes. It is not the sort of thing that an ordinary home mechanic would possess or ever use. Nevertheless, we conclude that it should be considered that an individual such as this plaintiff who does occasional mechanical assistance around a professional shop, may use this tool on occasions in his work. At the same time, it is hardly conceivable to us that an ordinary person would pick up and use such a tool without acquiring some instruction as to its use. We especially note that the mechanic supervisor from whose tool box plaintiff obtained the tool testified that had plaintiff asked him to use this tool he would have refused him. Additionally, plaintiff testified that he did notice the loose arrangement of the accessories on the tool and did ask his superiors whether he could use the tool, and was told it was all right to use it. We cannot conclude that the manufacturer could reasonably anticipate that a tool such as this, designed for professional use, would be used by a person unskilled and uninstructed as to its proper use, and hence we find no unreasonable violation of a duty to warn in this case. It seems to us that the evidence tends rather to show that the plaintiff knew that something was wrong with his intended use of this tool, with which he was unfamiliar, and the fault herein is shared by him and his employer, rather than the manufacturer.

For the above reasons, we affirm the judgment of the trial court at plaintiff’s costs.

AFFIRMED.

      . It is apparent from the testimony that these two words are transposed and should read “Had he been advised”.

      . “Property” should be “proper”.

      . “Fall” should read “tool”.


text:
    Leighton LOTT v. T. J. HALEY, M. D. and J. Ray McDermott Company.
    No. 9381.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.

      Monroe & Lemann, Andrew P. Carter, David E. Walker, Alvin J. Bordelon, Jr., New Orleans, for Leighton Lott, plaintiff-appellant.
    G. Bruce Kuehne and John J. Weigel, Jones, Walker, Waechter, Poitevent, Carr-ere & Denegre, New Orleans, for J. Ray McDermott Co., defendant-appellee.

      Robert D. Bjork, Jr., Adams & Reese, New Orleans, for T. J. Haley, M. D., and Aetna Casualty and Surety Co., defendants-appellees.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Leighton Lott is a deep-sea diver who sues for damages because of his inability to pursue his occupation, allegedly caused by the negligent conduct of his former employer, J. Ray McDermott Co. and its examining physician Dr. T. J. Haley.

The basis of the suit is that he had been examined by Dr. Haley in 1972 at the request of McDermott to determine fitness for employment, and advised, following the examination, that he was fit to continue diving. He did so for a period of approximately four years after the examination. He first learned in 1976 that he was afflicted with osteonecrosis, a disease common to deep-sea divers. He contends that the disease was present at the time of his original examination, that he was not informed of its presence, and that his continued diving through the period of the last four years caused the disease to progress past the point of cure.

Both defendants filed exceptions. McDermott filed an exception of no cause of action, while Dr. Haley filed an exception of prescription. The trial judge sustained both exceptions, dismissing the suit as to both defendants. From this judgment, Lott took this appeal.

I. The Exception of Prescription

The exception of prescription filed by Dr. Haley is based upon LSA — R.S. 9:5628:

“§ 5628. Actions for medical malpractice.
“A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
“B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
Added by Acts 1975, No. 808, § 1. Amended by Acts 1976, No. 214, § 1.”

Under this statute plaintiff’s suit has prescribed because filed more than 3 years from date of alleged neglect.

The only question is whether the statute passed by the Legislature in 1975 should be applied to this 1972 occurrence. Appellant argues that, since the effective date of the statute was after the examination at which the alleged negligence occurred, the former law of prescription should apply. We affirm the ruling of the trial judge that the present law applies.

At the time of alleged neglect, the pertinent prescriptive periods were codal and jurisprudential. Civil Code Article 3536 provides in pertinent part as follows:

“The following actions are also prescribed by one year:
“That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses of quasi offenses.”
* * * * * *

The jurisprudence, however, construed this statute to mean that the one year period only began to run from the date on which the injured party had actual or constructive knowledge of the offense. Duhon v. Saloom, 323 So.2d 202 (La.App. 3rd Cir. 1975) writ refused, 325 So.2d 794 (La.1976); citing Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970); Marguette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269 (1958).

It is well settled in Louisiana that statutes of prescription are remedial statutes. Succession of Harz, 181 So.2d 272 (La.App. 4th Cir. 1965); State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943). Because of this classification, courts have normally held that these statutes are applicable to all actions instituted after they became effective even though the cause of action arose, or the facts giving rise to the cause arose, before the statute was enacted. State v. Alden Mills, supra; Dowie v. Becker, 149 La. 160, 88 So. 777 (1921).

The above jurisprudence leads us to the conclusion that appellant’s action has prescribed. The clear, legislative policy that the possible liability of doctors is not to exceed a three year period from the date of the occurrence cannot be ignored by applying a jurisprudential rule to the contrary which existed before the recent statute. It is true that in some cases, see for example Alden Mills, supra, the court found it necessary to provide a reasonable time for the aggrieved party to seek his remedy to avoid the harsh effect of the application of a remedial statute. Even if we were to grant this reasonable time here, however, we feel that appellant’s time has elapsed since he did not file suit until 18 months after the effective date of the statute. He learned of the alleged injury, on the other hand, only six months after the statute.

We are mindful of the recent decision of the First Circuit in Henson v. St. Paul Fire & Marine Insurance Company, 354 So.2d 612, (La.App. 1st Cir. 1977). In that case, the court found that the governing rule in cases of this type was the rule of “proportionate prescription”, under which the time that has elapsed before the change in law is reckoned according to the former law and the time after according to the new law. This rule was last applied in the 19th Century and we feel that it has been superced-ed by the modern rules on remedial statutes found in the cases cited above. We also note that the Louisiana Supreme Court granted writs on this case on March 31, 1978.

Appellant also argued that a retrospective application of this statute would impair a pre-existing right and, therefore, would be unconstitutional. It is well established, however, that prescriptive statutes do not extinguish rights, they merely bar recovery. Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). This is far different from a per-emptive statute which divests the plaintiff of his cause of action. If appellee had failed to plead prescription, for example, this case would have proceeded to conclusion without the court applying the plea. If the statute had been peremptive, on the other hand, the action would not have been entertained regardless of the actions of ap-pellee, since the cause of action did not exist. Guillory v. Avoyelles Railway Company, 104 La. 11, 28 So. 899 (1900) and Civil Code Article 3463.

II. The Exception of No Cause of Action

Appellee J. Ray McDermott bases its exception of no cause of action upon the fact that no recovery can be had from the company since Dr. Haley was not acting as the “servant” of the company. Appellant contends that McDermott “knew or should have known” of the affliction, and that, therefore, a cause of action has been pleaded and recovery can be had.

It is clear that a principal is not liable for the negligent conduct of a non-servant agent performed in the course of the principal’s business. Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968); Carmouche v. Eserman, 259 So.2d 600 (La.App. 4th Cir. 1972). Nor is a principal liable for the acts of an independent contractor. Crutti v. Frank, 146 So.2d 474 (La.App. 4th Cir. 1962); Trapani v. Parish of Jefferson, 180 So.2d 850 (La.App. 4th Cir. 1965). The status is usually decided upon the issue of control.

An employer is hardly in a position to control the acts of a hired professional such as a doctor. This court has previously decided, in Dowling v. Mutual Insurance Company of New York, 168 So.2d 107 (La. App. 4th Cir. 1964), that an insurance company is not liable for the negligence of a physician who examines the person for that insurance company. The court there found that the physician was not subject to control regarding details of performance and that therefore the physician was an independent contractor. We feel that this reasoning also applies here.

Appellant argues that his allegations that appellee “knew or should have known” that appellant suffered from a disease constitutes a cause of action. Conclusions, however, are not considered to be true for the purposes of an exception of no cause of action. Well pleaded facts are accepted to be true but petitioner cannot rely upon these stated conclusions to state his cause of action. Insurance Company of North America v. Davidson, 282 So.2d 585 (La.App. 4th Cir. 1973); Leatherman v. Parish of East Baton Rouge, 275 So.2d 806 (La.App. 1st Cir. 1972).

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.