text:
    Helen McMILLAN, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellants.
    No. 11423.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Granted Oct. 26, 1977.

      Timothy R. Higgins, Hammond, for plaintiff-appellee.
    Anthony J. Clesi, Jr., Baton Rouge, for defendants-appellants.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This case and a companion one, Hutchinson v. State Farm Insurance Companies, (sic) et al. (our No. 11,424) La.App., 349 So.2d 953, result from an intersectional collision. We shall relate all of the facts and issues of law in the above captioned cause but shall enter a separate judgment in the Hutchinson suit.

The accident occurred at approximately 11:30 A.M. in the intersection of Louisiana Highways 22, 42, and 1037 in the Town of Springfield, Livingston Parish, Louisiana. The weather was clear and the roadways dry.

At the intersection, Louisiana Highway 42 runs generally in an east-west direction. Louisiana Highway 22 approaches the intersection from the north and then turns east. From the intersection east, Louisiana 22 and 42 are one and the same. Louisiana Highway 1037 approaches the intersection from the south and terminates there. For all practical purposes it is a typical four-cornered intersection except for a right turn lane at its northwest corner. Southbound traffic on Louisiana Highway 22 is controlled by a flashing red light and a stop sign. Eastbound traffic on Louisiana 42 is controlled by a flashing yellow light.

Mrs. Helen McMillan, who was confronted with the flashing yellow light was driving her car in an easterly direction on Louisiana Highway 42. Mrs. Linda T. Oliphant, who was confronted with a flashing red light and a stop sign, was driving her car in a southerly direction on Louisiana Highway 22. The Oliphant vehicle struck the McMillan vehicle on the latter’s left side knocking it into a third car owned by Thomas Hutchinson. The Hutchinson vehicle was parked just off the highway in front of a business establishment located at the southeast corner of the intersection.

The above cause (# 11,423) was instituted by Mrs. McMillan against her own insurer, State Farm, under the uninsured motorist provisions of her policy, and Mrs. Linda T. Oliphant. The companion suit (# 11,-424) was instituted by Thomas Hutchinson. Named as defendants therein were Mrs. Oliphant, Mrs. McMillan and State Farm.

The trial judge held that the accident was caused solely through the negligence of Mrs. Oliphant and rendered judgment in Suit No. 11,423 in favor of Mrs. McMillan and against Mrs. Oliphant and State Farm, in solido, in the sum of $4,594.39. State Farm has appealed and urges the defense of contributory negligence on the part of Mrs. McMillan and, in the alternative, a reduction in her award.

In the Hutchinson suit (# 11,424), plaintiff obtained judgment against Mrs. Oli-phant only in the amount of $2,030.00. Hutchinson has appealed urging that the trial judge erred in failing to find liability on the part of Mrs. McMillan.

For reasons hereinafter shown, we find that the judge a quo committed manifest error in failing to conclude that the actions of Mrs. McMillan were a cause in fact of the accident.

All parties concede that Mrs. Oliphant was negligent in failing to heed the flashing red light and the stop sign. She has not appealed and both judgments against her are final. Insofar as liability is concerned the sole issue presented in these two actions is the alleged negligence of Mrs. McMillan, the driver confronted with the flashing yellow light.

We find no dispute as to the facts. The controversy arises as to the application of the law to the facts.

Mrs. McMillan testified that as she entered the Town of Springfield she was traveling thirty-five miles per hour. When she passed a school zone she reduced her speed to twenty-five miles per hour. As she neared the intersection she “glanced” to her left and observed the Oliphant vehicle, which “appeared to be slowing down.” She then looked to her right and proceeded on. The first knowledge she had of an impending accident was when her sister shouted “She is not going to stop.” She immediately looked back to her left and saw the Oliphant automobile coming through the intersection at a faster rate of speed than she had first observed. The resulting collision was almost instantaneous. She stated that she was familiar with the intersection and the above noted traffic control devices.

Mrs. Syble Sturdivant was riding in the front seat of Mrs. McMillan’s automobile. She deposed that as they neared the intersection she observed the approach of the Oliphant vehicle at about the same time as did her sister, Mrs. McMillan. “It looked like the car was going to stop, it wasn’t going fast . . . So we were just driving along, and then all of a sudden it — she (Mrs. Oliphant) just speeded up.” She placed Mrs. McMillan’s speed at the time at thirty miles per hour.

Mrs. Oliphant testified that as she approached the intersection she was traveling approximately twenty-five miles per hour and that when she attempted to stop her vehicle in obedience to the flashing red light and stop sign, her brakes failed to hold. She denied accelerating her vehicle.

Neither vehicle left any skidmarks. The McMillan automobile was struck near the rear of its left door.

Counsel for Mrs. McMillan strenuously urges that as a matter of law she had the legal right to assume that the Oliphant vehicle would, in fact, obey the flashing red light and the stop sign and was therefore free to enter the intersection under the circumstances. This assumption is only partially correct.

R.S. 32:234 A(2) provides that a motorist “. . . may proceed through or pass such signal (flashing yellow) only with caution.” (Parenthesis and emphasis ours).

In Lockhart v. McInnis-Peterson Chevrolet, Inc., 205 So.2d 744 (La.App. 1st Cir. 1968), writ refused March 8, 1968, this court reviewed rather extensively the above statute and the prior jurisprudence interpreting the same. One important factor was emphasized, namely, a motorist confronted with a blinking yellow light is not in the same position as a motorist favored with a green semaphore light or one where opposing traffic is burdened with a stop sign. A yellow flashing light is a restriction on the motorist’s movement through the intersection. Savoy v. Cooley, 144 So.2d 223 (La.App. 1st Cir. 1962), certiorari denied, November 8, 1962. The degree of caution required is not only that the intersection be approached at a reasonable speed, but also that a proper lookout be maintained for danger. Great American Insurance Company v. Turnage, 339 So.2d 1322 (La.App. 1st Cir. 1976). A special duty is imposed on the motorist on a favored street calling his attention to a dangerous intersection and to be vigilant and cautious so that he may ascertain that the approaching motorist will heed the traffic signal and yield the right of way. Liberty Mutual Insurance Company v. Wilson, 282 So.2d 745 (La.App. 1st Cir. 1973), writ refused 286 So.2d 362 (La.1973). See also, Neal v. Weaver, 220 So.2d 751 (La.App. 1st Cir. 1969), writ refused 254 La. 290, 223 So.2d 411 (1969).

What constitutes a reasonable speed and a proper lookout depends on the facts of each case. Thirty-five to forty miles per hour on a highway where an approaching vehicle had come to a rolling stop were facts considered in determining that a motorist favored with a flashing yellow light had satisfied the requirements of reasonable speed and proper lookout. Valenti v. Onellion, 273 So.2d 896 (La.App. 1st Cir. 1973), writ denied 277 So.2d 446 (La.1973).

In the instant case additional undisputed facts reveal that both Mrs. McMillan and Mrs. Oliphant entered the intersection at about the same speed, twenty-five miles per hour. Whereas Mrs. Oliphant may have reduced her speed somewhat before entering the intersection, it was not a significant change. She merely permitted her vehicle to decelerate without mechanical assistance. Mrs. McMillan looked at the Oliphant vehicle only one time and then paid it no further attention.

Mrs. McMillan believed and emphatically testified that since she was driving within the speed limit and the Oliphant vehicle had to stop in obedience to the flashing red light and stop sign, that she (Mrs. McMillan) had exercised proper care under the circumstances. We find that one glance and twenty-five miles per hour did not satisfy the requirements of the statute and its mandate to “proceed with caution.”

Accordingly, for the above reasons, the judgment of the district court is reversed and set aside insofar as it cast State Farm Mutual Automobile Insurance Company as the uninsured motorist insurer of Mrs. McMillan. In all other respects the judgment is affirmed. The costs in these consolidated cases are assessed one-third to Mrs. McMillan, individually, and two-thirds against Mrs. Linda T. Oliphant and State Farm Mutual Automobile Insurance Company, in solido.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.

      . The correct name of the defendant is State Farm Mutual Automobile Insurance Company.

      . 251 La. 939, 207 So.2d 541.


source: Caselaw Access Project

author: SARTAIN, Judge.

license: Public Domain

text:
    Thomas HUTCHINSON, Plaintiff-Appellant, v. STATE FARM INSURANCE COMPANIES et al., Defendants-Appellees.
    No. 11424.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    J. Arthur Smith, III, Baton Rouge, for plaintiff-appellant.
    Anthony J. Clesi, Jr., Baton Rouge, for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.

      . The correct name of the defendant is State Farm Mutual Automobile Insurance Company.

   SARTAIN, Judge.

For reasons this day assigned in McMillan v. State Farm Mutual Automobile Insurance Company et al, La.App., 349 So.2d 949, the judgment of the district court in favor of State Farm Mutual Automobile Insurance Company and Helen J. McMillan Stilley, and against plaintiff, Thomas Hutchinson, is hereby reversed and set aside; and, judgment is hereby rendered in favor of plaintiff, Thomas Hutchinson, and against Linda T. Oliphant, Helen J. McMillan Stilley and State Farm Mutual Automobile Insurance Company, in solido, in the sum of $2,930.00, together with legal interest thereon from date of judicial demand, until paid. In all other respects the judgment appealed is affirmed. The costs in these consolidated cases are assessed one-third to Mrs. McMillan, individually, and two-thirds against Mrs. Linda T. Opiphant and State Farm Mutual Automobile Insurance Company, in solido.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


text:
    A. F. LACOUR et ux., Plaintiffs-Appellants, v. CUMIS INSURANCE SOCIETY, INC., Defendant-Appellee.
    No. 11426.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.

      Joseph P. Brantley, IV, Baton Rouge, for plaintiffs-appellants A. F. LaCour, et ux.
    Frank M. Coates, Jr., Baton Rouge, for defendant-appellee Cumis Ins. Society, Inc.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is a suit for personal injuries and special damages as a result of injuries sustained by Mrs. Hazel LaCour at the home of her son, Dr. Edward G. LaCour. Mrs. LaC-our and her husband, A. F. LaCour, appeal from a judgment rejecting their demands. We affirm.

All of the evidence was presented through depositions and a written stipulation. The facts are not in dispute.

Mrs. LaCour was visiting the home of her son, Dr. Edward G. LaCour. She, her husband and grandson, Mark LaCour, were in the den. Dr. LaCour and his wife were not at home at the time. Mark LaCour deposed that he was sitting on the couch when he heard a squeaking sound emanate from beneath the couch. He arose and as he did a small bird known as a “chimney swift” flew out from under the couch and lit on the den wall. His grandmother told him to open the rear door to the house. She proceeded to open the front door. It was thought that the bird would exit from one of these entrances. At this point neither Mark nor his grandmother appeared concerned.

The bird initially flew to the rear of the den. Mrs. LaCour was returning to the den to ask her grandson if it had gotten out. She then observed the bird flying in her direction, appearing to be headed towards the front door. It then changed it course of flight and flew directly towards her as if “. . .it was going to come up to my face and tear my eyes out.” She turned quickly and fell, thereby sustaining very serious injuries.

No one saw the bird enter the den originally. However, there is really no dispute that it entered from the chimney. Dr. LaC-our and his wife were aware that birds nested in their chimney. Mrs. Doris LaC-our and her son, Mark, knew of one other occasion when a “chimney swift” had gotten into the den. It was removed by placing a basket over it and sliding the basket to the rear door. Dr. LaCour did not recall this previous incident.

Plaintiffs’ principal thrust is that the house was unsafe by virtue of the presence of “chimney swifts” in the chimney and the likelihood of these birds gaining access to the living area, frightening a guest, and causing injury to others similar to those sustained by Mrs. Hazel LaCour.

In disposing of the legal issues involved, the trial judge, in his written reasons for judgment, stated:

“The liability of a landowner under circumstances such as these is based on the concept of fault under Articles 2315 and 2316 of the Louisiana Civil Code. In order to determine whether liability exists under the facts of this case, this Court adopts the duty-risk approach. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962). Pursuant to this approach, the following inquiries must be made: (1) What, if any, duty was owed by the landowner to the plaintiff? (2) Was there a breach of this duty? (3) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?
“Traditionally, the duties of an owner or occupier of land, for the purpose of determining liability in negligence actions brought under articles 2315 and 2316 of the Louisiana Civil Code, have been defined in terms of the status of the person entering upon the land. Recently, however, the Louisiana Surpeme (sic) Court in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (1976), found the common law classifications of invitee-licensee-trespasser to be of little help in applying Civil Code Article 2315. The court therein further indicated that the proper test to be applied in determining a landowner’s liability under Articles 2315 and 2316 is ‘whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others’.
“First, a determination must be made of the duty owed by Dr. Edward LaCour to his mother by ascertaining the particular facts before this Court. The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Dr. LaCour, therefore, only owed a duty to discover any unreasonably dangerous conditions on the premises and either to correct the condition or warn his mother of its existence.
“It is the opinion of this Court that this duty was not breached. The depositions of both Dr. LaCour’s son and wife do establish that Dr. LaCour should have known of the possibility of the presence of small birds in his home in that on at least one prior occasion a similar bird had been present inside the premises. However, this Court does not believe that the possibility of the presence of a small bird constitutes an unreasonably dangerous condition so as to mandate a duty to either correct the condition or warn of its possibility. Dr. LaCour’s son and wife were able to remove the first bird from their home without any resulting injury and they therefore had no reason to believe that such birds would present any unreasonable danger. Likewise, this Court reiterates that the failure of Dr. LaCour to close the chimney flue or place a screen or other protection device in front of the fireplace does not constitute a breach of duty as this Court has held that the possibility of the presence of a small bird within the home does not constitute an unreasonably dangerous condition.
“The Third Circuit Court of Appeal held in the case of Thomas v. Hanover Insurance Company, 321 So.2d 30 (La. App. 3rd Cir. 1975), that the owner of a laundramat owed a duty to customers to take reasonable precautions to keep mice from his premises in that mice were found to constitute an unreasonable risk of foreseeable harm to customers. This foreseeability of harm was therein based upon the assumption that most laundra-mat customers are women who might become frightened by a mouse and suffer injury in attempting to flee. This Court, however, does not find that same foreseeability of harm arises in the case of the presence of a small bird. However, pre-termitting consideration of foreseeability or not and having concluded that there was no breach of duty on the part of the landowner, this Court need not inquire further whether the risk and harm caused were within the scope of protection afforded by the duty.”

We agree with the above conclusions of the district judge.

Accordingly, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


text:
    Beatrice Strain CALAMIA, Plaintiff-Appellant, v. James N. COYNE, Clarence A. Knight and the Travelers Insurance Company of America, Defendants-Appellees.
    No. 11475.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 14, 1977.
    Philip A. Gattuso, Gretna, for plaintiff-appellant.
    France W. Watts, III, Franklinton, for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is a suit arising out of an automobile accident which occurred on April 19, 1974, at the intersection of 11th and St. Mary Streets in the town of Abita Springs, Louisiana. Plaintiff-appellant, Mrs. Beatrice Strain Calamia, was driving her Volkswagen automobile east on 11th Street, and defendant-appellee, James N. Coyne, was driving a Plymouth belonging to his stepfather, defendant-appellee, Clarence A. Knight, in a southerly direction on St. Mary Street. Both streets are gravel surfaced and of approximately equal width. The intersection is uncontrolled, having neither signs nor traffic signals to direct motorists as they proceed through it. Due to the presence of shrubbery and other vegetation, the intersection may be properly classified as a blind intersection for drivers approaching from the west and north, as were plaintiff and defendant at the time of the collision. The accident occurred on a dry, clear evening at dusk.

Plaintiff testified that she was traveling at a constant speed of ten to fifteen miles per hour as she approached the intersection. She said she did not see the Coyne vehicle until the moment of collision. She was familiar with the intersection, having traveled through it numerous times in the past.

Defendant testified that his speed was about fifteen miles per hour as he approached the intersection, and that he looked to the right but could not see plaintiff’s approaching automobile because of the vegetation which blocked his view. He stated that he did not slow down upon approaching or entering the intersection. The first time he saw plaintiff’s automobile was at the moment of the collision.

The front of plaintiff’s automobile collided with the back door and back fender of defendant’s automobile as defendant’s automobile crossed plaintiff’s lane of travel.

The trial court, recognizing the right of way accorded by R.S. 32:121 to the auto approaching an uncontrolled intersection from the right, found defendant “clearly negligent in violation of his duty to yield the right of way to the plaintiff.” The court also found contributory negligence on the part of the plaintiff, citing her “duty to slow down and observe other traffic to determine whether it is safe to proceed through an intersection.”

Plaintiff asserts on appeal that her statutory right of way absolves her of negligence. Further, she asserts that if she is deemed negligent in failing to keep a proper lookout, there is nothing she could have done to avoid the accident had she seen defendant, and, therefore, her negligence was not the legal cause of the accident.

Plaintiff testified at trial that she did not intend to stop at the intersection even though she was aware that her vision was obscured by vegetation at all four corners.

In Smith v. Borchers, 243 La. 746, 146 So.2d 793 (1962), the Supreme Court of Louisiana spoke on the duty of a motorist approaching an uncontrolled intersection from the right of another vehicle:

“ * * * ‘The obligation rests upon the motorist traveling on a favored street to so operate his automobile as to comply with all provisions of traffic regulations and in a prudent manner, having due respect for the rights of and conditions governing other motorists who may happen to be crossing the right of way street.’ (Citations omitted.)
“Those in charge of and operating motor cars and engines are charged with a duty to look and observe, which never ceases; that what they can see they must see, and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability. (Citations omitted.) Even when one has the right of way he is not relieved from the necessity of looking into the direction from which others may be expected to come, and where such care would have prevented the accident, he who fails to look or to keep a proper lookout cannot recover, even though the other party was grossly at fault.”

Gutelius v. Phoenix Insurance Company, 266 So.2d 717 (La.App. 4th Cir. 1972), involved a blind, uncontrolled intersection of two blacktop roads. The court there found that the plaintiff failed to look in both directions upon approaching it, and found that he could have avoided the accident had he exercised such caution. The court reasoned:

“The so-called directional right-of-way rule does not convert the street into a superior one, having the right-of-way; nor is it a mechanical rule which determines liability after an accident by the mere direction of the vehicles. Its basic function is to rule which of two drivers arriving simultaneously at an uncontrolled intersection of equal streets should let the other pass. Before this rule can be relied on, the driver must first determine that the other driver is coming from his left and is approaching or entering the intersection at about the same time. These determinations one cannot reasonably expect to make while maintaining speed, especially on approaching a blind intersection.
“A driver approaching an uncontrolled intersection with a street of equal dignity is obliged, in the exercise of reasonable care, to slow sufficiently to make the determination whether he can safely cross the intersection, including, when another vehicle is approaching, whether the directional right-of-way rule is applicable to cede to him or to the other driver the right to pass first. Such a driver has the right to expect of the other driver only that the other will likewise and for the same purposes slow down on approaching the intersection (and will obey the directional right-of-way rule if applicable).”

Here,, the accident was due to the failure of both drivers to keep a reasonable lookout upon approaching and entering the intersection. Mrs. Calamia failed to see defendant’s auto until she collided with it. At the point of collision, defendant’s auto had passed almost through the intersection. Had she maintained a proper lookout she could have taken action which would have prevented the accident. The trial judge was correct in rejecting plaintiff’s claim.

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

AFFIRMED.

      . Writ refused, 263 La. 235, 267 So.2d 727 (1972).


author: LOTTINGER, Judge.

text:
    Willie J. TALBERT v. Willie RAMSEY et al.
    No. 11458.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.

      Mac R. Trelles, Jr., Baton Rouge, of counsel for plaintiff appellee Willie J. Talbert.
    Joseph A. Gladney, Warren D. Ponder, Baton Rouge, of counsel for defendant appellant Willie Ramsey.
    Larry D. Book, Baton Rouge, of counsel for defendant appellee Albert Cotton, Jr.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This suit results from an automobile accident which occurred at approximately 10:15 P.M. on December 12, 1975, at the intersection of Choctaw Drive and Ardenwood Drive in Baton Rouge, Louisiana. Talbert was a guest passenger in a 1973 model Ford automobile owned and operated by defendant, Willie L. Ramsey. Defendant, Albert Cotton, Jr., was the driver of a 1971 model Chevrolet automobile which was traveling easterly on Choctaw Drive and attempted a left turn in front of the approaching Ramsey vehicle. Choctaw at that point is a four lane undivided street. The intersection was controlled by a flashing amber light which was on and working facing traffic on Choctaw Drive.

Following the trial below, the Trial Court held both drivers concurrently negligent and awarded Willie J. Talbert judgment in the sum of $2,500.00 for pain and suffering, and an additional $565.22 as medical expenses. Defendant Ramsey took an appeal and the plaintiff answered the appeal seeking an increase in quantum.

For the purpose of the trial below, another suit entitled Ramsey v. Cotton, 349 So.2d 960, No. 11459 on the docket of this court was consolidated with the instant case for trial. Said case also arises out of the same accident and we will treat them together in this opinion, however, we will render separate judgments.

The evidence, as indicated by both Ramsey and his passenger, Talbert, indicates that the former was driving at a rapid rate of speed on Choctaw in a westerly direction in order “to beat” a train moving in the same direction parallel to Choctaw in order that they could cross the train tracks ahead of the train. At the same time, the Cotton vehicle was heading in an easterly direction on Choctaw toward its intersection with North Ardenwood. As he slowed his vehicle with the intention of making a left turn on North Ardenwood and was in the process of making the turn, he was struck on the right side of his car by the speeding Ramsey vehicle. Talbert testified that they were trying to beat the train and when he noticed that the Cotton car had its signal on and had moved into the left turn lane, he called it to the attention of Ramsey, who jumped giving Talbert the impression that he had not seen the Cotton car. By this time it was too late to avoid the accident.

Ramsey acknowledged that he was trying to get ahead of the train but stated that he was merely driving at between 35 and 40 miles per hour. He said that he first observed the Cotton vehicle immediately prior to the collision. Cotton, on the other hand, said that he did not see Ramsey’s automobile until collision. It is apparent to this Court as it was to the Trial Court that neither of the drivers were attentive. There is no question that Cotton was negligent in turning left in front of the oncoming Ramsey vehicle. Further, there is no question but that Ramsey was negligent in proceeding through a blinking caution light at a speed of 35 or 40 miles per hour.

LSA-R.S. 32:234A(2) provides as follows:

“FLASHING YELLOW OR AMBER (CAUTION SIGNAL) — When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through or past such signal only with caution.”

In Liberty Mutual Insurance Company v. Wilson, 282 So.2d 745, 747 (La.App. 1st Cir. 1973), writ refused, 286 So.2d 362 (La. 1973), the court said:

“The jurisprudence of this state is well settled that a motorist on a favored street approaching an intersection controlled by a flashing yellow light must exercise caution and vigilance as he enters the intersection in order that he may ascertain whether he can proceed into the crossing with safety.”

Plaintiff Talbert was out of work approximately three months before he attempted to go back. It was brought out on cross-examination that during this part of the year his work would have been sporadic in as much as he drove a cement truck. We feel that any award for loss of wages would have been too speculative, and therefore, feel that the Trial Court was correct in refusing to award loss of wages. It would have been very easy for Talbert to have obtained the records of his employer as to the days that were actually worked. No such evidence was tendered.

Following the accident, Talbert complained of pains in the right side of his chest anteriorly. There were abrasions over the left leg below the knee and a contusion over the tibia below the right knee, as well as tenderness over the right biceps muscle and over the posterior aspect of the left arm. He was treated at Our Lady of the Lake Hospital in Baton Rouge. X-rays of the skull, tibia and chest were negative, and he was prescribed some medicine for pain and released. Dr. Lott reported, that in his opinion, Mr. Talbert sustained a contusion of the head with a whiplash syndrome and traumatic sprain of cervical and lumbar spine. He was disabled for about five months. We find no error in the award.

Therefore, for the reasons hereinabove assigned, the judgment of the Trial Court is affirmed; all costs of this appeal to be paid by appellant, Ramsey.

AFFIRMED.


text:
    Willie RAMSEY v. Albert COTTON, Jr.
    No. 11459.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.

      Joseph A. Gladney, Baton Rouge, of counsel for plaintiff appellant Willie Ramsey.
    Larry D. Book, Baton Rouge, Mac R. Trelles, Jr., Baton Rouge, of counsel for defendant appellee Albert Cotton.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an automobile accident suit. Plaintiff sued to recover for personal injuries as well as property damages. From a judgment in favor of defendant, dismissing plaintiff’s suit, plaintiff has appealed.

This matter was consolidated for purposes of trial with another suit entitled, “Willie J. Talbert v. Willie Ramsey, et al” number 11458 on the Docket of this Court, 349 So.2d 958. For the reasons given in the opinion this date rendered in suit number 11458, the judgment of the Trial Court is affirmed, all costs of this appeal to be paid by plaintiff-appellant.

AFFIRMED.


author: ELLIS, Judge.

text:
    Mildred Lemoine, wife of Albin J. RICKS, Sr., Albin J. Ricks, Sr. and Mrs. Virginia M. Burgess, natural and legal tutrix of the minor child Sharon Lynn Ricks v. Richard ROBERSON and Donald Madden, d/b/a Don’s Bar.
    No. 11444.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Glenn L. Morgan, New Orleans, for plaintiffs, appellants.
    Bernard S. Smith, Covington, for defendant-appellee Richard Roberson.
    Marion B. Farmer, Covington, for defendant-appellee Donald Madden.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a suit for the wrongful death of John Kenneth Ricks. Plaintiffs are Mildred Lemoine, wife of and Albin J. Ricks, Sr., parents of the decedent; and Virginia M. Burgess, former wife of the decedent, and mother of Sharon Lynn Ricks, his minor daughter, on behalf of the said daughter. Defendants are Richard Roberson, who is alleged to be the killer of the decedent; and Donald Madden, owner of the bar in which John Kenneth Ricks was allegedly killed.

Defendant Roberson filed two exceptions: a peremptory exception of no right or cause of action directed at Mr. and Mrs. Ricks, Sr.; and a dilatory exception of lack of procedural capacity, directed at Mrs. Burgess.

After a hearing, judgment was rendered sustaining the peremptory exceptions and dismissing the suit by Mr. and Mrs. Ricks, Sr. against Mr. Roberson. The judgment further sustained the exception of lack of procedural capacity, but granted Mrs. Burgess until January 12, 1977, to qualify as tutrix for her minor child. Subsequently, Mrs. Burgess was granted an extension until February 14, 1977.

Thereafter, all three plaintiffs took a de-volutive appeal from the said judgment.

With respect to the appeal by Mrs. Burgess, we note that the judgment is interlocutory with respect to her, and therefore not appealable. No judgment dismissing her suit for noncompliance with the order of the judgment appealed from appears in the record, nor has irreparable injury been shown. Articles 1841, 2083, 933, Code of Civil Procedure. The appeal, with respect to Mrs. Burgess, is therefore dismissed.

With respect to the appeal by Mr. and Mrs. Ricks, Sr., we note, that Article 2315 of the Civil Code provides as follows:

“Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
“The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
“The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the surviv- or or not.
“As used in this article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.”

It is clear that the surviving parents have an action for general and special damages arising out of the wrongful death of their child only if the decedent left no wife or child surviving him. John Kenneth Ricks left a daughter, Sharon Lynn Ricks. Therefore, the peremptory exception of no cause of action was properly sustained as to Mr. and Mrs. Ricks, Sr. See Johnson v. Travelers Indemnity Co., 286 So.2d 484 (La. App. 1st Cir. 1973).

The judgment appealed from is therefore affirmed, insofar as it affects plaintiffs Mildred Lemoine, wife of and Albert J. Ricks, Sr., at their cost. The appeal of Mrs. Burgess is dismissed, at her cost.

Affirmed in part, appeal dismissed in part.


text:
    Robert Daniel CHAPPUIS v. SEARS ROEBUCK AND COMPANY et al.
    No. 11445.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Granted Nov. 11, 1977.
    Arthur Cobb, Baton Rouge, of counsel for plaintiff-appellant Robert Daniel Chappuis.
    Boris F. Navratil, Baton Rouge, of counsel for defendant-appellee Sears Roebuck and Company et al.
    Ben Louis Day, Baton Rouge, of counsel for third party defendants-appellee Sentry Ins. Co. and Huey G. Tucker.
    H. Evans Scobee, Baton Rouge, of counsel for defendant-appellee Lumbermen’s Mutual Casualty Co.

      Lanny R. Zatzkis, New Orleans, of counsel for defendant-appellee Brechner, M. D.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

Plaintiff Robert Daniel Chappuis was injured when a small piece of metal flew off a hammer he was using and lodged in his eye. He filed this suit for damages arising therefrom, against Sears Roebuck and Company, and Vaughan and Bushnell Manufacturing Company, the seller and manufacturer of the hammer; and Continental Insurance Company and Lumbermen’s Mutual Casualty Company, insurers of Vaughan and Bushnell. Sentry Insurance, A Mutual Company, intervened to recover workmen’s compensation benefits paid to plaintiff. Thereafter, Sears, Vaughan and Continental third partied Huey G. Tucker, plaintiff’s employer, and Sentry, his insurer, for indemnification in the event they should be found liable.

The case was tried on the merits by a jury, which returned a verdict for the defendants. Judgment was signed dismissing the main demand, the intervention and the third party demand, from which judgment plaintiff and Sentry have appealed.

The hammer in question was a claw hammer, manufactured by Vaughan, and sold by Sears under the Craftsman label. It was bought by Mr. Tucker for use in his sheet metal business on December 18, 1972. Plaintiff, who was inexperienced in sheet metal work, was hired by Mr. Tucker as a helper about three weeks before the accident, which happened on June 28,1974. He was engaged in driving a common nail into a two by four when a small piece of metal flew off the face of the hammer and entered his left eye, injuring him seriously.

According to the pre-trial order, it was the position of plaintiff and intervenor that the accident happened because of “the fault of Sears and Vaughan and Bushnell in producing and selling a hammer which was not fit for the purpose intended and not designed in such a way as to avoid chipping

However, the testimony is clear that there were no defects in the material, design or manufacture of the hammer, which was sold with the following warning affixed to the handle:

“WARNING BE SAFE WEAR SAFETY GOGGLES
“This hammer is intended for driving and pulling common nails only. Hammer face may chip if struck against another hammer, hardened nails, or other hard objects, possibly resulting in eye or other injury.”

The evidence is also clear that if the hammer is used as intended, the face will not chip. It is also clear that there were six or seven chips, or spalls, on the face of the hammer at the time that plaintiff was injured. The expert testimony is to the effect that the chip which injured plaintiff had been loosened by some previous misuse of the hammer. The experts also testified that, once the face of a hammer is chipped, it should be discarded, because a chipped hammer face tends to chip again. It appears that no warning to that effect was issued by the defendants. Mr. Chappuis, Mr. Tucker, and Mr. Smith, another employee, all testified that they had never used the hammer improperly, nor had they seen anyone else use it improperly.

Plaintiff argues that the jury should have found that the hammer was defective because there was no evidence that it had been misused and because it had chipped under conditions of normal use. It is further argued that, even if the hammer were not defective, and had been misused, the defendants failed to warn of the danger of using a hammer with a chipped face, and were liable for failing to do so.

In Weber v. Fidelity & Casualty Insurance Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971) the court said:

“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.
“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.”

There is ample evidence in this case from which the jury could have concluded that there was no defect in the design or manufacture of the hammer, and that it had been misused prior to the accident. The expert testimony is unanimous to that effect. We find no manifest error in that conclusion.

It is true that there exists in Louisiana a duty, on the part of manufacturers of potentially dangerous instrumentalities, “to instruct reasonably foreseeable users of their product with regard to its safe use.” Amco Und. of Audubon Ins. Co. v. American R. & S. Corp., 329 So.2d 501 (La.App. 1st Cir. 1976). We think that duty has been fulfilled by the warning placed on the handle of the hammer herein. Plaintiff is suggesting that the manufacturer must anticipate the misuse of its product, and warn of all dangers which might arise therefrom. We hold that the law does not require warnings of this nature.

The plaintiff also complains that the instructions given the jury were misleading, in that the jury might have received the impression that it was necessary to find negligence on the part of the defendants, while his case is based on strict liability. We have reviewed the instructions given the jury, and find that the law relative to “products liability” cases was properly given. The instructions relative to negligence related to the third party demands against Mr. Tucker and his insurer, and were clearly separated and distinguished from the law relating to the defendants in the main demand. There is no merit to the specification of error.

The judgment appealed from is affirmed at plaintiff’s cost.

AFFIRMED.


text:
    H & H SEWER SYSTEMS, INC. v. INSURANCE GUARANTY ASSOCIATION.
    No. 11447.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 26, 1977.

      Robert D. Downing, Alexandria, of counsel for plaintiff-appellant H & H Sewer Systems, Inc.
    Ben L. Day, Baton Rouge, of counsel for defendant-appellee Ins. Guaranty Ass’n.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is an appeal by plaintiff H & H Sewer Systems, Inc. from a summary judgment dismissing its suit.

On April 11, 1973, James C. Plato and Douglas W. Potts, doing business as South Coastal Construction Company of Baytown, Texas, entered into a contract for the construction of a sewer system with the Town of Campti. Two performance bonds, both issued by Summit Insurance Company of New York, were furnished by the contractors. Subsequently, the contractors defaulted, and Summit became liable on its bonds.

The bonds contained the following provisions:
“(1) Whenever Contractor shall be, and declared by Owner to be in default under the Contract, the Owner having performed Owner’s obligation thereunder, the Surety may remedy the default, or shall
(a) Complete the Contract in accordance with its terms and conditions or
(b) Obtain bid or bids for submission to Owner for completing the Contract in accordance with its terms and conditions, and upon determination by Owner and Surety of the lowest responsible bidder, arrange for a contract between such bidder and Owner and make available, as work progresses, sufficient funds to pay cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the penalty set forth in this instrument. The term ‘balance of the contract price’, as used herein, shall mean the total amount payable by Owner to Contractor under the Contract and any amendments thereto, less the amount properly paid by Owner to Contractor.”

Summit elected to complete the contract in accordance with its terms and conditions, and, on November 15,1974, contracted with plaintiff to complete the job on a cost plus ten per cent basis.

On February 10,1975, plaintiff submitted its claim for $21,501.00 for work done during the preceding two weeks, and Summit did not pay. Thereafter, on May 28, 1975, Summit was placed in liquidation in New York.

Defendant Insurance Guaranty Association was subsequently notified by the Louisiana Insurance Commissioner of Summit’s insolvency, and Summit was placed in ancillary receivership in East Baton Rouge Parish, Louisiana.

Based on the foregoing facts, plaintiff alleges that the defendant Insurance Guaranty Association stands in the shoes of Summit for the payment of the obligation due to plaintiff.

R.S. 22:1380 provides:

“There is created a nonprofit unincorporated legal entity to be known as the Insurance Guaranty Association, whose domicile for purpose of suit shall be East Baton Rouge Parish, Louisiana. All insurers defined as member insurers in R.S. 22:1379 shall be and remain members of the association as a condition of their authority to transact insurance in this state. The association shall perform its functions under a plan of operation established and approved under R.S. 22:1383 and shall exercise its powers through a board of directors established under R.S. 22:1381.”

R.S. 22:1382 provides, in part:

“(1) The association shall:
(a) Be obligated to the extent of the covered claims existing prior to the determination of the insurer’s insolvency, or arising after such determination but prior to the first to occur of the following events: (1) expiration of thirty days after the date of such determination of insolvency, (2) expiration of the policy, or (3) replacement or cancellation of the policy at the instance of the insured if he does so within thirty days of the determination, but such obligation shall include only that amount of each covered claim, except return premiums, which is in excess of one hundred dollars and is less than fifty thousand dollars, nor shall a claim for the portion of unearned premiums in excess of seven hundred and fifty dollars be allowed. Notwithstanding the foregoing, the association shall pay the full amount of any covered claim arising out of a workmen’s compensation policy. In no event shall the association be obligated to a policyholder or claimant in an amount in excess of the obligation of the insolvent insurer under the policy from which the claim arises.
“(b) Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent.”
Under R.S. 22:1379(3) a covered claim is “ . . .an unpaid claim, including one for unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Part applies issued by an insurer, if such insurer becomes an insolvent insurer after September 1, 1970 and (a) the claimant or insured is a resident of this state at the time of the insured event; or (b) the property from which the claim arises is permanently located in this state. ‘Covered claim’ shall not include any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise.”

Plaintiff contends that since Summit elected to complete the contract, under the provisions of the bonds, and thereby entered into a contract with plaintiff, its claim is one “arising out of” and “within the coverage” of the bonds, and is therefore a “covered claim.”

We think it clear that, if Summit were liable to plaintiff under the bonds, that the claim made by plaintiff would be a “covered claim” and the defendant association would be liable.

It is not contested by defendant that surety contracts are covered by R.S. 22:1375 et seq., the Insurance Guaranty Association Law. We also take note that the contract and bond in this case were entered into under the Public Works Act. Under R.S. 38:2241, all bonds written in connection with a public works contract must insure “the faithful performance of the contract with an additional obligation for the payment by the contractor or sub-contractor for all work done, labor performed, or material or supplies furnished” in connection with the job. All requirements of the Public Works Act relative to the bond are considered as part of the bond, regardless of the written terms thereof.

When Summit elected to complete the contract, it stepped into the shoes of the defaulted contractor, and its contract with plaintiff made plaintiff a subcontractor on the job. We do not think that, by becoming the contractor, the surety can then deny to its subcontractors the protection of the bond, which is guaranteed to them by the provisions of the Public Works Law.

We therefore hold that plaintiff’s claim is one arising out of and within the coverage of the bonds furnished by Summit and that defendant is therefore not entitled to summary judgment.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for further proceedings in accordance with law. Defendant shall pay all costs of this appeal. All other costs shall await final disposition on the merits.

REVERSED AND REMANDED.


text:
    Doris Gates RANKIN v. Donald D. BLANCHARD, d/b/a Blanchard Trailer Sales, et al.
    No. 11448.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Joseph P. Brantley, IV, Baton Rouge, for plaintiff-appellant Doris Gates Rankin.
    William H. Cooper, Jr., Baton Rouge, for third party plaintiff Sheller-Globe Corp.
    Gerard E. Kiefer, Baton Rouge, for defendant and third party defendant-appellee Donald D. Blanchard d/b/a, Blanchard Trailer Sales.
    Carey J. Guglielmo, Baton Rouge, for third party defendant-appellee Chrysler Corp.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a redhibitory action, in which plaintiff Doris Gates Rankin seeks the rescission of the sale of a 1973 Superior Motor Home, with Dodge motor and chassis, together with the return of the purchase price, damages and attorney’s fees. Defendants are Donald D. Blanchard, doing business as Blanchard Trailer Sales, who sold the unit to plaintiff; Sheller-Globe Corporation, Superior Division, the manufacturer of the motor home; and Chrysler Motors Corporation, manufacturer of the motor and chassis. The main demand was dismissed as to Chrysler Motors Corporation on exceptions, by judgment dated October 23, 1974, which judgment is now final. Thereafter Sheller-Globe third-partied both Blanchard and Chrysler Corporation.

After trial on the merits, judgment was rendered in favor of plaintiff and against Blanchard for $634.14. The suit as against Sheller-Globe was dismissed, as well as Sheller-Globe’s third party demands against Blanchard and Chrysler. From that judgment, only plaintiff has appealed.

The record shows that Mrs. Rankin purchased the motor home from Blanchard on May 5, 1973, for a total price of $18,256.46. In her petition, she details a number of alleged defects which she alleges entitle her to a rescission of the said sale.

The first of these, a broken oil dipstick, was remedied shortly after plaintiff acquired the motor home. The exhaust tail pipe came loose from the muffler at about the same time, and this condition was also satisfactorily remedied.

The locking mechanism and latch of the front door did not operate properly. Plaintiff alleges that this defect was partially remedied, but testified that the door latch still does not function properly. This testimony was not refuted by defendants.

The refrigerator in the unit, which operates off both electricity and butane gas, would not function properly when gas operated while the vehicle was being driven. Blanchard attempted to remedy this condition by installing a “blow-out kit”, but was unsuccessful. Plaintiff testified that she would not have bought the motor home if she had known that this condition existed.

The two roof mounted air conditioning units would not cool the motor home adequately. These two units were operated on current from a 5000 watt Onan generator, which was found to be overheating. Blanchard determined that the generator was not producing sufficient voltage for the air conditioning units to function properly. A baffle was removed from the generator exhaust system, and the generator adjusted.

Blanchard testified that both the air conditioning units and the generator should operate properly as a result thereof. Plaintiff never attempted to operate the air conditioning units thereafter, and was unable to say that the repairs had not been successful. She operated the generator on one occasion, without complaint.

On March 8, 1974, plaintiff was getting ready to take a trip to Arkansas. She took the motor home to Blanchard’s place of business to have a rumbling noise corrected. Blanchard’s employees tightened the alternator belt, which was found to be loose. During the trip, plaintiff noticed that the battery was discharging. She made several stops along the way, but was unable to get help. She testified that she was unable to find an open service station in Shreveport on Friday evening. Eventually, in Ida, Louisiana, the electrical system failed. She abandoned the motor home there, leaving it in the care of a local service station operator. On her return to Baton Rouge, she made formal tender of the motor home to Blanchard and this suit followed.

The evidence shows that the alternator pulley was dented and out of line, which caused the belt to stretch and fail. The alternator stopped functioning and the battery, no longer being charged thereby, eventually went dead.

At the time the motor home was left in Ida, it showed just over 3,000 miles on its odometer. The experts who examined the pulley, testified that a belt would last no more than 300 miles under normal operating conditions. Mr. Thomas, who cared for the motor home during the two years between March 8,1974, and the trial, drove it about 250 miles, and ruined two belts in the process. These experts testified that it was impossible for a belt to have lasted 3,000 miles with the alternator pulley in that condition.

The trial judge concluded that the defect in the pulley could not have existed at the time of the sale, and found that it had been caused by Blanchard’s employees, when they tightened the belt on March 8, 1974. He did not think that the defect in the front door latch and the refrigerator were serious enough to constitute redhibitory defects.

In this court, plaintiff complains of the conclusions of the trial judge in all three respects. The following provisions of the Civil Code are applicable:

“Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
“Art. 2521. Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”
“Art. 2522. The buyer can not institute the redhibitory action, on account of the latent defects which the seller has declared to him before or at the time of the sale. Testimonial proof of this declaration may be received.”
“Art. 2530. The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

A plaintiff in a redhibitory action must show that the defects existed at the time of the sale; that they were not apparent, and that they were of such a nature as to render the thing absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the defect. See Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973).

We think there is ample evidence in the record from which one can reasonably conclude that the defect in the alternator pulley could not have existed at the time of the sale. It therefore cannot constitute a basis for rescission on the grounds of redhi-bition.

Neither do we find any manifest error in the conclusion of the trial judge that the defects in the front door and the refrigerator are sufficiently serious to justify either rescission of the sale or a reduction in the purchase price. With respect to the refrigerator, we note that the owner’s manual warns that, under certain driving conditions, the gas pilot light on the refrigerator will be blown out by the wind, and that the pilot should be checked regularly when driving. Under other conditions of operation, the refrigerator functions properly.

Plaintiff also complains that the amount awarded her is insufficient. The trial judge concluded that Blanchard’s employee had damaged the pulley and awarded plaintiff $122.49 for the cost of repairing it; $11.65 for other costs; and $500.00 for inconvenience, all as a result of the faulty repairs done by Blanchard. Of course, since the trial judge found no redhibitory defects in the motor home, he should have dismissed plaintiff’s suit, because damages arising out of faulty repairs were not alleged as part of the cause of action, nor prayed for by plaintiff. Since no appeal was taken by Mr. Blanchard, the judgment is final as to him, but we do not believe that any increase therein would be appropriate. In any event, there is certainly no abuse of discretion insofar as quantum is concerned.

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

AFFIRMED.


author: CHIASSON, Judge.

text:
    Mr. and Mrs. Herbert P. RIVERE and National American Insurance Company v. PHILCO CORPORATION and/or its successor, Philco-Ford Corporation.
    No. 11434.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Nov. 4, 1977.
    Lemle, Kelleher, Kohlmeyer & Mathews, Paul B. Deal, New Orleans, for plaintiff-ap-pellee.
    McGlinchey, Stafford, Mintz & Hoffman, Lawrence J. Centola, Jr., New Orleans, for defendant-appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This case arose as the result of a fire in the home of Mr. and Mrs. Herbert P. Riv-ere, plaintiffs-appellees, in April, 1974. The fire was alleged to have been caused by a defective clothes dryer manufactured by the Philco Corporation and purchased by the Riveres in 1967.

National American Insurance Company, the Riveres’ insurer and a plaintiff-appellee, paid the Riveres for the property damage caused by the fire and is subrogated to their claim for that amount. Property damage was stipulated to be $10,000.00.

The Riveres and National filed suit against the Philco Corporation and/or its successor, the Philco-Ford Corporation, defendant-appellant, for damages caused by the fire. Philco answered denying liability.

A trial on the merits was held and the District Court rendered judgment in favor of National and against Philco awarding National $10,000.00 plus legal interest for property damage and judgment in favor of Philco and against the Riveres dismissing their claims for anguish and inconvenience.

Philco has appealed this judgment contending that the District Court erred in finding Philco liable because this finding is contrary to the evidence and is manifestly erroneous. The Riveres have answered this appeal contending that the District Court erred in dismissing their claim for damages for anguish and inconvenience.

The legal principles to be applied in determining whether recovery may be had for damages resulting from the use of a manufacturer’s product are:

“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. “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).
Weber v. Fidelity & Casualty Insurance Co. of N. Y., 259 La. 599, La., 250 So.2d 754 (1971).

In the present case the evidence clearly establishes a causal relationship between the injuries sustained and the use of the product. The experts for both the appellees and the appellant testified that the fire began in the dryer.

At issue in this case is whether the dryer contained a defect which caused the fire. George Webb, an expert in electrical engineering for the appellees, testified that he had examined the dryer, that a short circuit had occurred in the dryer control panel, that he could not determine the cause of the short circuit, that there were traces of woven material on the top and back of the control panel, and that the short circuit plus the presence of the material on the dryer were the most probable causes of the fire. While Webb testified that installation of an internal fuse would have protected against the short circuit, he also stated that the failure to include an internal fuse was probably not a design flaw and that such fuses were not in use within the industry. Earl Gardner, an expert for the appellant, testified that the fire probably occurred when lint, which had collected in the dryer heating element, caught fire. The lint build up was caused by Mrs. Rivere’s failure to clean the lint filter often enough. He further testified that the control panel wires were adequate for the current available. The dryer body, which was unavailable, and the control panel, which was available, were not inspected by Gardner.

There was no testimony by either expert that the dryer was in any way defective or unreasonably dangerous to normal use. Therefore, the District Court did not properly apply the legal principles for determining liability for damages resulting from the use of a manufacturer’s product. The District Court erred in holding Philco liable for the damage suffered by the Riveres.

Because there is no liability on the part of Philco we do not need to consider whether the District Court erred in failing to award damages for anguish and inconvenience.

For the above reasons the judgment appealed from is reversed and judgment is rendered dismissing the appellees’ suit. Cost to be paid by appellees.

REVERSED AND RENDERED.


author: PONDER, Judge.

text:
    Ben BENNETT v. ANCHOR MARINE, INC.
    No. 11469.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.

      Jerry H. Bankston, Baton Rouge, for plaintiff-appellee Ben Bennett.
    Bailey E. Chaney, Baton Rouge, for defendant-appellant Anchor Marine, Inc.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for cancellation of a sale and the return of the purchase price. The trial court granted judgment in favor of the plaintiff. Defendant has appealed.

The only issue before this court is whether the trial judge erred.

We affirm.

Plaintiff entered into a sales agreement with defendant for the purchase of a used boat and trailer. The agreement contained this provision: “Pending customers test ride on first weekend of use. _”

When plaintiff tested the boat he noticed that the oil pressure was low; that the engine would skip and miss; that after slowing down he could not get the engine to accelerate. Several passengers in the boat on this particular weekend corroborated plaintiff’s testimony.

Plaintiff returned the boat to defendant’s place on November 3. Due to a backlog of work, defendant told plaintiff to take the boat home and return it on November 5. With defendant’s approval, plaintiff took it out again the following weekend to check. He again returned the boat on the 10th, but was advised that no work could be performed until the 13th.

On November 25, plaintiff and one of defendant’s employees took the boat out for a test run. The engine started to miss and then stopped completely; it was later discovered that a broken valve had caused extensive damage.

The trial judge found that the plaintiff promptly returned the boat to defendant after discovering defects during the first weekend of use; that the boat had never performed satisfactorily, and that defendant had failed to complete the necessary repairs, despite plaintiff’s tender. He therefore rescinded the sale and awarded $3,727.50 to plaintiff.

Although this case might be decided on the question of redhibition, we prefer to decide it on the failure to meet the suspen-sive condition of the sales agreement. There is no doubt that the boat did not run to plaintiff’s satisfaction on the first weekend of use, and has never been delivered to and accepted by plaintiff in satisfactory condition.

Since the suspensive condition did not occur, plaintiff’s obligation to pay never matured. Zemurray v. Boe, 235 La. 623, 105 So.2d 243 (1958). It is immaterial that the motor was seriously damaged by a condition unrelated to the complaints.

For the above reasons, the judgment of the trial court is affirmed; defendant is to pay all costs.

AFFIRMED.


text:
    Winston H. SIMS v. Marcella McGinnis SIMS.
    No. 11471.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Granted Nov. 4, 1977.
    Charles W. Wilson, III, Baton Rouge, for plaintiff-appellee Winston H. Sims.
    Michael A. Cavanaugh, Baton Rouge, for defendant-appellant Marcella McGinnis Sims.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is an appeal from a judgment partitioning a pension plan.

The only issue is the method of computing the value of the wife’s share.

We affirm.

The community was established in 1946. Since 1956, plaintiff has been employed as an air traffic controller for the federal government. As of the date the community was dissolved in 1975, Mr. Sims had contributed $14,446.95 to the retirement plan in which he is enrolled. There were no employer contributions. The parties stipulated that the contributions to the plan were community property.

Mrs. Sims has pointed out in her brief there are available three methods of computing the value of the pension plan:

1. the amount that could be withdrawn as employed in Langlinais v. David [La. App.], 289 So.2d 343 (3rd Cir. 1974);

2. a general formula ascribing to the community that portion that was earned during the community of the annuity that ultimately is drawn, as employed in Lynch v. Lawrence [La.App.], 293 So.2d 598 (4th Cir. 1974), writ refused La., 295 So.2d 809; and

3. the present actuarial value of the right to participate in the retirement plan at a later time. Mrs. Sims cited no case, and we have none, employing this method.

The lower court used the first method. Mrs. Sims urges the use of the second and cites the case of Lynch v. Lawrence, supra, which gave the general formula for the computation and mandated the beginning of payment upon employee’s retirement.

The Lynch case is distinguishable, however, because there were no employee contributions; the employer contributions and the earnings of the trust were not apportioned to an individual account for each employee. The vested interest in the deferred plan could not be discounted, assigned or converted into cash. The husband could collect nothing until the day he reached 65 years of age. Although the court declared that the wife’s interest was one-half the value of the deferred plan on the date of dissolution, it did not require the husband to pay until he began to draw his monthly benefits. This was the only practical method of protecting the wife’s community interest. A logical criticism of the holding, however, is that it does not result in a partition of the community asset but only in a recognition that the wife owns an undivided interest.

In Swope v. Mitchell, La.App., 324 So.2d 461 (3rd Cir. 1975) the husband was a military officer who had retired prior to the dissolution of the community. The court declared the former wife to be owner of an undivided interest in the retirement plan based upon the ratio of time the community existed in relation to the length of military service. Since the husband had already retired, the value of the plan was the monthly retirement benefits.

In T. L. James v. Montgomery, La., 332 So.2d 834 (1976), the court was dealing with the distribution of proceeds accrued by the death of an employee, not with the partition of a community.

In Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956) the suit involved the partition of the community, but the court confined itself, on this point, to reversing the lower court’s finding that the annuity insurance policy had no value and to declaring that it was a community asset without addressing itself to the questions of valuation and partition.

Instead, we find this case is very similar to Langlinais v. David, La.App., 289 So.2d 343 (3rd Cir. 1974), cited in T. L. James v. Montgomery, supra, without criticism. There the husband became a member in the state police retirement program during the existence of the community. The court concluded that since the community was dissolved prior to the husband’s retirement, the only value to be ascribed to the fund was the cash value and the wife was entitled to one-half of that.

Mr. Sims had no option to receive monthly benefits from the fund before retirement; as of the date of dissolution, he had not reached the required age to retire. Therefore, as in Langlinais, the only immediate value of the retirement fund was the amount Mr. Sims could withdraw, and Mrs. Sims is entitled to one-half of that amount.

It is to be emphasized that this is a suit to partition the community property not to seek an abstract declaration of the interest of the community in the pension plan.

Mrs. Sims argues that this is unfair to the wife. The result might prove to be inequitable to the spouse in some instances; in others, however, the result will be advantageous, since it is conceivable that the employee might never retire and draw benefits. In the absence of proof of a different and more equitable method of partitioning the community, the lower court was correct.

For the above reasons, the judgment of the trial court is affirmed; defendant to pay all costs of this appeal.

AFFIRMED.


text:
    Valmond J. PORCHE v. ROBINSON BROTHERS, INC., et al.
    No. 11472.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Nov. 4, 1977.

      Joseph P. Brantley, IV., Baton Rouge, for plaintiff-appellee Valmond J. Porche.
    R. Gray Sexton, Baton Rouge, for defendant and third party plaintiff-appellee Robinson Brothers, Inc.
    A. Shelby Easterly, III, Baton Rouge, for defendant and third party defendant-appellant Ford Motor Co.
    William N. Faller, Baton Rouge, for third party defendant-appellee General Tire Co.
    Before, ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is an appeal from a judgment awarding attorney’s fees to an automobile dealer from an automobile manufacturer.

The issues on appeal are whether the trial court properly awarded attorney’s fees to Robinson Brothers on their third party demand against Ford Motor Company, and if so, was the amount awarded adequate.

We amend and affirm.

Plaintiff purchased an automobile, manufactured by Ford Motor Company, from Robinson Brothers, a Lincoln-Mercury dealer. After many difficulties with the vehicle, necessitating a number of repairs, plaintiff returned his vehicle to Robinson Brothers and demanded a return of the purchase price. When no satisfaction was forthcoming, he instituted this action in redhibition.

The trial court rendered judgment in favor of plaintiff and against Robinson Brothers and Ford Motor Company for $1,000.00 as a reduction in the purchase price and against Ford Motor Company for $750.00 in attorney’s fees. Judgment was further rendered in favor of Robinson Brothers and against Ford Motor Company for $1,000.00 as indemnity and $750.00 in attorney’s fees.

Neither plaintiff or defendants have appealed from the judgment reducing the purchase price and awarding plaintiff attorney’s fees, and the judgment awarding Robinson Brothers $1,000.00 as indemnity. The only dispute is over the award of attorney’s fees to Robinson Brothers.

The award of attorney’s fees to Robinson Brothers was based on LSA-C.C. Article 2545 which states:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

Ford Motor Company argues that Robinson Brothers is not a buyer as contemplated under the above article, that the language refers only to the buyer who ultimately institutes the suit in redhibition, and not to an intermediary vendor who buys the car for resale. It contends that the issue is controlled by LSA-C.C. Art. 2531.

We believe this case is controlled by Art. 2545. See Gonzales v. Southwest Mobile Homes, Inc., La.App., 309 So.2d 780 (3rd Cir. 1975) writ refused La., 313 So.2d 239, in which the court awarded reasonable attorney’s fees to an intermediate seller on a third party demand against a manufacturer. A manufacturer is presumed to know the defects of the thing he manufactures and is therefore in bad faith and liable for attorney’s fees under Article 2545. Rey v. Cuccia, La., 298 So.2d 840 (1974). Article 2531 does not negate or restrict any rights which may be afforded a buyer under Article 2545.

The lower court was well within its range of discretion in granting Robinson Brothers $750.00 in attorney’s fees for work done in the lower court. Robinson Brothers has asked for an increase for the work required in this appeal. We believe they are entitled to an additional $500.00. See Heiman v. Insurance Company of State of Pennsylvania, La.App., 270 So.2d 185 (1st Cir. 1972) writ refused La., 271 So.2d 873 (1973).

For the above reasons, the judgment of the trial court is amended to increase the award of attorney’s fees to third party plaintiff Robinson Brothers by $500.00. In all other respects the judgment is affirmed. Ford Motor Company is cast with all costs.

AMENDED AND AFFIRMED.

      . Art. 2531. Liability of seller in good faith for restitution of price
      “The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
      “In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”


text:
    Glenn SWETMAN et al. v. Joseph GERACE, Administrator of the Department of Employment Security, et al.
    No. 11474.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Nov. 4, 1977.

      Wilbert Tauzin, Thibodaux, for plaintiffs and appellees.
    Marion Weimer, James A. Piper and James A. McGraw, Baton Rouge, for defendant and appellant.
    Thomas H. Matuschka, Baton Rouge, for Nicholls State University and Appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is an appeal from a judgment awarding plaintiffs unemployment compensation benefits.

The only question before this court is whether the plaintiffs had a contract for the 1976 — 77 academic year, thereby rendering them ineligible for unemployment compensation benefits during the summer months.

We reverse and render.

Plaintiffs, professors at Nicholls State University, under tenure, had written contracts of employment, terminating on May 15, 1976.

They filed claims for unemployment compensation benefits, asserting that they were eligible under LSA-R.S. 23:1600(6), which reads in part as follows:

“. . benefits based on service in an instructional research or principal administrative capacity in an institution of higher education (as defined in R.S. 23:1472(23), . . . shall not be paid to an individual for any week of unemployment which begins during the period between two successive academic years, or during a similar period between two regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual’s contract, if the individual has a contract or contracts to perform services in any such capacity for any institution or institutions of higher education, ... for both such academic years or both such terms.”

Their claims were denied by the area office of the Department of Employment Security, the Appeal Referee and the Board of Review. The trial court reversed these decisions and found plaintiffs eligible for benefits.

Since, admittedly, plaintiffs had contracts for the 1975-76 academic year, their success or failure depends upon whether they had contracts for the 1976-77 academic year:

Plaintiffs contend that since they had no written contracts of employment and since the university could not enter into unconditional contracts until the legislature had appropriated the money for the operation of the university they could not hold their employer liable should they not be employed the next academic year. Therefore they had no contract within the meaning of LSA-R.S. 23:1600(6).

The university contends that because of its tenure policy, and because it was understood that plaintiffs would be given a written contract later, as had been the practice for years, there was a contract within the meaning of LSA-R.S. 23:1600(6).

The lower court held that in the absence of a certain and definite price for the lease of the labor and a definitive agreement as to the capacity in which the parties would serve there was no contract. The court said that defendant’s tenure policy was no longer effective because not reaffirmed, ratified or continued by the Board of Trustees for State Colleges and Universities under the Louisiana Constitution of 1974. Further, the court stated that the tenure policy even if effective, was not a guaranty because of the necessity of funding by the legislature; that even if there was an agreement between plaintiffs and the university it was made conditional on the absence of financial exigencies, and on the approval of the president or chief administrative officer and of the appropriate management board and therefore there was no legally enforceable contract.

We disagree. Contracts can be either express or implied, LSA-C.C. Art. 1780. Silence or inaction may in some instances show an assent that creates an obligation. LSA-C.C. Art. 1817. It seems quite clear to us that there was a contract between plaintiffs and Nicholls. Plaintiffs fully expected to teach during the fall semester. Nicholls fully expected them to. Plaintiffs had tenure as teachers; had the university failed to employ them without legal cause, the university would have been liable. We therefore believe there was a contract.

The lower court in its reasons and counsel in their briefs have spent considerable effort and time in discussion of suspensive conditions to contracts. We believe there was a contract, and it is immaterial that it was subject to the conditions, either suspen-sive or resolutory, of availability of finances and approval of the proper officials. The fact that either party may not have had to perform an obligation under the contract because of the failure of the condition does not result in the conclusion that there never was a contract. The contract had existence and validity at the time; that plaintiffs would not have been required to teach without approval of the proper officials and without being paid does not mean there was no contract.

The statute we are construing does not require an unconditional contract; the court is not justified in adding that requirement.

We believe too that the court was incorrect in saying that Nicholls had no tenure policy because there was no proof of the reaffirmance of the policy by the Board of Trustees. No authority was given for that conclusion; we know of no law that would require the Board of Trustees to readopt and reaffirm the actions of its predecessor for them to continue to have validity.

In the absence of unequivocal words requiring that result, we doubt that there was legislative intent to afford unemployment benefits to teachers after their normal work year when both employer and employee expect the resumption of the employment relationship and when legal liability would result from a refusal to perform, once the conditions, if any, have been satisfied.

For these reasons the judgment of the District Court is reversed, and judgment is rendered sustaining the decision of the Louisiana Board of Review for the Division of Employment Security and dismissing plaintiffs-appellees’ action. Costs are to be paid by the appellees.

REVERSED AND RENDERED.


author: BOLIN, Judge.

text:
    Charlotte Watts HUHN, Plaintiff-Defendant in Rule-Appellee, v. Alexander W. HUHN, Defendant-Plaintiff in Rule-Appellant.
    No. 13306.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 5, 1977.
    Steven N. Cowel, Shreveport, for plaintiff in Rule-appellant.
    Wilkinson, Carmody & Peatross by Arthur R. Carmody, Jr., Shreveport, for defendant in Rule-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Mr. and Mrs. Huhn were divorced in February 1972, and the wife was awarded alimony in the sum of $210 per month. Mr. Huhn filed the present rule against his former wife seeking a reduction in the alimony payments, primarily claiming she was employed in Alaska making a substantial monthly salary. The trial judge found Mrs. Huhn was employed at the time of the divorce and that Mr. Huhn had failed to prove any changed conditions or that Mrs. Huhn had sufficient means for her support. From judgment rejecting the demands of plaintiff in rule, he appeals.

We find the evidence supports the trial court’s judgment, and it is affirmed at appellant’s cost.


author: CULPEPPER, Judge.

text:
    Charles L. DOOLAN, Plaintiff-Appellant, v. Yvonne Pellerin DOOLAN, Defendant-Appellee.
    No. 6310.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 29, 1977.

      Alvis J. Roche, Lake Charles, for plaintiff-appellant.
    Nathan A. Cormie and Ronald J. Bertrand, Lake Charles, for defendant-appel-lee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

MOTION TO DISMISS APPEAL

The defendant-appellee, Yvonne Pellerin Doolan, moves to dismiss the devolutive appeal of the plaintiff-appellant, Charles L. Doolan, on the grounds that the plaintiff-appellant did not timely move for an appeal. The appeal has not yet been lodged in this court.

We dismiss the appellant’s appeal.

Judgment was read and signed in this matter in favor of the defendant-appellee on April 25, 1977, and on May 2, 1977 the plaintiff timely filed a motion for a new trial. The plaintiff’s motion for a new trial was heard on May 13,1977, and immediately after the arguments the trial court denied the appellant’s motion, and caused a minute entry to be made to that effect. Both counsel for the appellant and appellee were present at the hearing on the motion, and at the announcement of the judgment.

On July 19, 1977, 67 days after the trial court’s denial of the plaintiff’s motion for a new trial, the plaintiff moved for and was granted a devolutive appeal to this court. The plaintiff did not file his appeal bond until August 2, 1977, which was 81 days following the denial of the plaintiff’s motion for a new trial.

Article 2087 of the Code of Civil Procedure provides, in pertinent part, that devol-utive appeals must be taken, and security furnished, within 60 days from the court’s refusal to grant a timely application for a new trial, if the appellant is not entitled to notice of such refusal under Article 1914.

Article 1914 of the Code of Civil Procedure provides as follows:

Art. 1914. “When a case has been taken under advisement by the court for the purpose of deciding whether an interlocutory order or judgment should be rendered, the clerk shall make an entry in the minutes of the court of any such interlocutory order or judgment rendered thereafter.
“If a written request for notice of the rendition of the interlocutory order or judgment in such a case has been filed, the clerk shall mail notice thereof to the party requesting it; and the latter shall have ten days from the date of the mailing of the notice to take any action or file any pleadings he deems necessary, except as provided in the next paragraph.
“If the interlocutory order or judgment is one refusing to grant a new trial, the delay for appealing commences to run only from the date of the mailing of such notice, as provided in ‘Articles 2087 and 2123.
“The provisions of this article do not apply to an interlocutory injunctive order or judgment.”

In his opposition the appellant argued that in accord with LSA-C.C.P. 1914 he filed a request for notice of judgment with the clerk by letter dated April 29, 1977, and since no notice of the judgment denying his motion for a new trial was ever sent to him, his time in which to perfect his appeal did not begin to run until July 19, 1977, the date he filed his motion for appeal.

Assuming the appellant’s letter of April 29, 1977, constituted a request for notice, the appellant is in error as to his interpretation as to LSA-C.C.P. 1914. The cited article has no application except in cases taken under advisement. This is made clear in the “Official Revision Comments” to the cited article which states, in pertinent part, as follows:

“(a) This article is restricted to cases taken under advisement so that the judge may decide whether to render an interlocutory order or judgment.
% % * *
“(b) The indirect source of this article requires mailing of notice of the rendition of an interlocutory order or judgment in all cases taken under advisement. This article is narrower, and requires mailing of notice in such cases only when a party has requested it. However, it requires a minute entry of the rendition of such an order or judgment, which affords counsel a ready opportunity of checking on the matter. . . . ”

As to a motion for new trial which is not taken under advisement, the jurisprudence is well settled that no notice of judgment is required, even in cases where a formal judgment denying the motion is later rendered. Simon v. Lumbermens Mutual Casualty Company, 138 So.2d 465 (La. App. 3 Cir. 1962); Recatto v. Hartford Accident & Indemnity Co., 259 So.2d 571 (La. App. 1 Cir. 1972); Kleinpeter v. Kleinpeter, 246 So.2d 240 (La.App. 1 Cir. 1971).

Since the plaintiff was not entitled to notice under LSA-C.C.P. 1914, his delay for appeal began to run when his application for a new trial was denied on May 13, 1977, and since his appeal was not taken until 67 days after the denial of his application for a new trial, it was taken too late, and hence this court is without jurisdiction to consider his appeal.

For the. reasons assigned, the appellant’s appeal is hereby dismissed. All costs of this appeal are hereby assessed to the plaintiff-appellant.

APPEAL DISMISSED.


text:
    Eugene H. WATSON, Sr., Plaintiff-Appellant, v. Mrs. Ceola S. SCOTT et al., Defendants-Appellees. Allen D. MORGAN, Plaintiff-Appellant, v. Vadna Burkett CULPEPPER et al., Defendants-Appellees.
    Nos. 13284, 13285.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearings Denied Sept. 26, 1977.
    Writ Refused Nov. 11, 1977.

      Nelson & Achee by Roland J. Achee, Joel M. Sermons, Shreveport, for plaintiffs-appellants.
    Bethard & Davis by Henry W. Bethard, III, Coushatta, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

We decided in prior opinions that plaintiffs (contiguous landowners) were entitled to servitudes of passage across defendants’ property. The eases were remanded to fix the location of these servitudes. See Watson v. Scott, 324 So.2d 508 (La.App. 2d Cir., 1975); Morgan v. Culpepper, 324 So.2d 598 (La.App. 2d Cir., 1975). On remand the cases were consolidated and judgments were rendered locating the servitudes, assessing the amount of land damage in the Morgan case, and assessing costs. Plaintiffs appeal and defendants file a motion to dismiss, contending the questions on appeal have become moot since plaintiffs have acquired rights of passage across other lands prior to perfecting this appeal.

Since we find no merit in defendants’ motion to dismiss, the primary question on appeal is whether the trial court correctly located the servitudes of passage. Finding the trial court did not locate the servitudes in conformity with our original opinions, we recast that portion of the judgment.

MOTION TO DISMISS

Attaching affidavits from various parties, defendants allege that both plaintiffs have found other routes to a public road and are no longer entitled to servi-tudes across defendants’ land. They move to dismiss the appeals or have both cases remanded for evidence on this issue of mootness. We deny defendants’ motion. We have previously determined that Watson was entitled to a conventional servitude across defendants’ land; we have also found Morgan entitled to a right of passage under Louisiana Revised Civil Code Articles 699, 700. Those determinations became final when the Supreme Court refused writs in both cases; they are binding on the parties here. Keller v. Thompson, 134 So.2d 395 (La.App. 3d Cir., 1961).

MERITS

In our prior opinions we found Watson had a 50-foot wide conventional servitude of passage across defendants’ property. We further decided this right of passage was intended to be over an existing road Watson had been using for a number of years. Since the road was not described it was our intention to remand the case in order to determine the exact description of this road to the extent that the existing road could be used, and to fix a further right of passage from that point to the northwest corner of the Morgan property.

In the Morgan case we found plaintiff was entitled to a servitude of passage over defendants’ property under Civil Code Articles 699 and 700. The only reason the location of Watson’s conventional servitude was considered in connection with the right of passage granted to Morgan was to ensure that the property would not be subject to servitudes in two separate locations.

In describing the servitude of passage, the lower court did not utilize the existing road to its fullest extent because, among other things, the road had been plowed and seeded, rendering its legal description unavailable. However, from our study of the record on remand, we are able to ascertain its location from aerial photographs and a government quadrangle map, which were introduced into evidence.

The trial court reduced the width of the servitude from fifty to forty feet, which was erroneous as to Watson since we had previously decided he was entitled to a fifty-foot conventional servitude of passage. Since Morgan is to use the same servitude as Watson, there is no necessity to reduce the width of Morgan’s servitude.

We find no error in that portion of the lower court judgment which assessed damages against Morgan in the sum of $1250 for his right of passage across defendants’ property.

Since the fixing of costs is within the sound discretion of the trial court, we likewise find no error in that portion of the judgment.

For the reasons assigned, that portion of the judgment locating and describing the servitudes of passage in both the Morgan and Watson cases is set aside and a consolidated judgment is rendered as follows:

It is ordered there be judgment in favor of plaintiffs, Eugene H. Watson, Sr., and Allen D. Morgan, and against defendants, Mrs. Ceola S. Scott, Mrs. Delphia B. Thomas, and Mrs. Vadna B. Culpepper, imposing a servitude of passage 50 feet wide across the land belonging to defendants, in favor of each plaintiff; the location of each right of passage being more particularly described as being 25 feet on each side of:

A point beginning where the center line of the road running south from Louisiana Highway 154 intersects the north boundary line of the Southeast Quarter (SE lA), Section 8, Township 15 North, Range 10 West, Bienville Parish, Louisiana; thence run south and east along an old roadbed (visible on aerial photograph, plaintiff’s exhibit number 4, in District Court suit No. 21,518) to a point where the old roadbed or an extension thereof would intersect the east boundary line of the SE Vi of Section 8; from this point the right of passage shall extend south along the easternmost 50 feet of Section 8 to the southeast corner of Section 8; thence shall continue south along the easternmost 50 feet of Section 17, Township 15 North, Range 10 West, a distance of 50 feet.

It is further ordered that the judgment in the Morgan case (No. 13,285), as it relates to the assessment of damages of $1250, and as it relates to the fixing of expert witness fees and the assessment of costs, be affirmed.

It is further ordered that the judgment in the Watson case (No. 13,284), as it relates to costs, be affirmed.

It is further ordered that the costs of appeal be assessed against defendants.


author: PRICE, Judge.

text:
    Mattie Moore GREEN, Plaintiff-Appellant, v. Jeremiah GREEN, Defendant-Appellee.
    No. 13286.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    Caddo-Bossier Legal Aid Society by Steven R. Thomas, Shreveport, for plaintiff-appellant.
    Before BOLIN, C. J., and PRICE and MARVIN, JJ.
   PRICE, Judge.

In the default judgment awarding plaintiff a separation from defendant, she was awarded the custody of the four minor children together with child support of $90 per month. Plaintiff has appealed asking for an increase in the amount of child support.

The evidence shows she receives $72 per week from unemployment compensation benefits. Defendant’s gross income is shown to be $450 per month. Plaintiff testified she had no knowledge of defendant’s net income. Plaintiff submitted a list of her monthly expenditures totaling $423.20.

The amount fixed by the trial judge when added to the unemployment compensation benefits gives plaintiff an approximate monthly income of $400. Although the amount defendant has been ordered to pay is minimal, it is nevertheless substantially in accord with plaintiff’s estimated needs and is within the wide discretion accorded a trial judge in such matters.

The judgment appealed is affirmed.