author: BEER, Judge.

text:
    Shirley DILLMAN v. John S. NOBLES and ABC Insurance Company.
    No. 8385.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      Calvin J. Hotard, New Orleans, Robert A. Pitre, Jr., Gretna, for defendant-appellant.
    Wayne M. LeBlanc, Metairie, for plaintiff-appellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   BEER, Judge.

On the evening of February 27, 1975, plaintiff-appellee, Shirley Dillman, in company with Darlene C. Musso and Beverly Alexander, attended the Scorpio Lounge in Marrero where they danced and had some drinks over a period of about two and one-half hours. When Dillman returned from the dance floor to her table and sat down in the chair she had previously occupied, the right rear leg allegedly broke, causing her to fall to the floor. She sustained a fracture of her coccyx. Her description of the incident is confirmed by Musso and Alexander, who also confirm Dillman’s testimony that a waitress named “Mary” came to her assistance, picked up the broken chair leg and waved it in the air while beckoning to “Johnny” (John S. Nobles), who did not respond.

John S. Nobles is president of Country Shindig, Inc., owner of the Scorpio Lounge. The lounge was sold by him to Country Shindig, Inc. in 1970. He manages the Scorpio, acknowledges that it is his sole source of livelihood, but denies liability for Dillman’s alleged damages on the ground that if anyone is liable, it is the corporation. He also denies that the chair broke, contending that Dillman had been drinking and slipped from the chair as she attempted to sit down. He denies that any waitress waved a broken chair leg or that he was informed of the leg breaking incident.

The trial judge found that the chair did, in fact, collapse, causing Dillman’s injuries. He further concludes:

“The Court is of the opinion that the lounge operator owed a duty of reasonable care to the plaintiff to provide a safe place to sit. Further the Court finds that though the chairs and tables may have been leased from Nunzio Provenzano they were within the exclusive possession and control of the defendant. There was testimony that the defendant inspected the chairs every week but the Court does not find this testimony credible and finds that the chairs were in fact never inspected at all. Since there is no direct evidence indicating negligence on the part of the defendant this Court feels that the doctrine of res ipsa loquitur is applicable. A plausible conclusion fairly drawn from the facts is that this accident would not ordinarily happen in the absence of negligence. The inference drawn from the failure to explain the accident’s cause, together with the facts and circumstances of this case, is that the defendant did not exercise proper care. See Pear v. Labiche’s, Inc., La., 301 So.2d 336.
The defendant argues that even if there is negligence he is not personally liable because the Scorpio Lounge is owned and operated by the ‘Country Shinding, Inc.’ There is evidence that a corporate entity known as the ‘Country Shinding, Inc.’ was incorporated on January 19, 1970. However, the Court is of the opinion that the defendant is personally liable.
The Court finds that no regular board of director meetings were held, nor minutes thereof kept; no corporation records were kept; there were no by-laws; nor was there a separate bank account for the corporation. Further, there was a constant commingling of personal and corporate funds; the lease of the lounge was in the name of John S. Nobles, individually, and the business permits or licenses were in both John S. Noble’s name, individually, and that of the corporation. Prom the foregoing facts the Court finds that the corporation is merely the alter ego of John S. Nobles and concludes that the defendant, John S. Nobles is individually and personally liable for injuries suffered by plaintiff as a result of the above described fall.” (Reasons for Judgment, pp. 126-127.)

As a result of the fractured coccyx, Dill-man was unable to walk without assistance for several days, and unable to do housework for several months. She experienced “exquisite localized tenderness of the tip of the coccyx,” and required pain-relieving medication over a several month period. The trial court awarded damages in the amount of $3,500.

Nobles appealed, alleging errors of fact and law. Dillman answered the appeal, praying that the amount of the award be increased.

Nobles contends that absent a showing that the purpose or effect of incorporation was to perpetrate fraud, the “alter ego” or “piercing the corporate veil” doctrine cannot be applied, and that no fraud is alleged or shown in this case.

As a general rule, corporations are distinct legal entities, and their shareholders are not liable for debts of the corporation. But, to quote our brothers of the First Circuit:

“There are, however, limited exceptions to the rule of non-liability of shareholders for the debts of a corporation whereby the court may ignore the corporate fiction and hold the individual member or members liable. In such situations courts commonly refer to the corporation as the ‘alter ego’ of the shareholder. One such exception to the non-liability rule involves situations where fraud or deceit has been practiced on a third party by the shareholder acting through the corporation. La.R.S. 12:95; Bossier Millwork & Supply Company v. D. & R. Construction Company, Inc., [La.App., 245 So.2d 414] supra.
Another basis for disregarding the corporate entity involves the failure to conduct a business on corporate footing, thereby disregarding the corporate entity to such an extent that the corporation ceases to be distinguishable from its shareholders. Gordon v. Baton Rouge Stores Company, 168 La. 248, 121 So. 759 (1929); Brown v. Benton Creosoting Company, 147 So.2d 89 (La.App. 2d Cir. 1962). In Louisiana, courts usually base this rule upon the often-quoted language of Keller v. Hass, [202 La. 486, 12 So.2d 238] supra :
‘It is well settled that where an individual forms a corporation of which he is the sole and only stockholder or owns such control of the stock that the act of the corporation is his own, then he may not use the screen of corporate entity to absolve himself from responsibility. (Citations omitted)’ 12 So.2d at 240.”
Kingsman Enterprises v. Bakerfield Electric Co., 339 So.2d 1280, 1282 (La.App. 1st Cir. 1976) (emphasis added) (footnote omitted).

The particular exception which permits application of the alter ego doctrine where corporate formalities have been disregarded is separate and distinct from that which permits its application to avoid fraud. Accord, H. Henn, Law of Corporations Section 147 (2d ed. 1970). Factors considered “may include, but are not limited to: commingling of corporate and shareholder funds; failure to follow statutory formalities for incorporation and the transaction of corporate affairs; undercapitalization; failure to provide separate bank accounts and bookkeeping records; and failure to hold regular shareholder or director’s meetings.” Kingsman Enterprises v. Bakerfield Elec. Co., supra.

Defendant disputes the trial judge’s factual findings regarding lack of minutes, board meetings, corporate records, commingling of funds and use of Nobles’ name on licenses. However, our review of the record results in noting the following relevant testimony:

1. Nobles claims that 290 board meetings had been held. However, on cross-examination, he did not even know who the members of the board were. The meetings he had referred to turned out to be weekly meetings between Nobles and the lounge employees. (Tr. 49.)

2. Country Shindig, Inc. had no checking or savings account, but was run primarily on a cash basis, all cash allegedly passing through the cash register controlled by Nobles. In response to a subpoena duces te-cum demanding checks dealing with Country Shindig, Inc., Nobles produced his personal checks. (Tr. 39, 40.)

3. The bookkeeper, Russel Gomez, testified that Nobles turned over to him copies of invoices and sales receipts. It was on the basis of this information alone that records were checked. Gomez indicated he had no means of verifying the amount the Scorpio actually took in, and relied on Nobles’ representations.

4. Nobles took about $200 per week out of the register, this transaction being “recorded” by entering a sales slip in the register. This weekly draw was Nobles’ sole livelihood. (Tr. 66.)

5. Many of the liquor and health licenses, and the lease, were in Nobles’ name individually.

We agree fully with the trial judge’s determinations. No board meetings took place; Nobles did not even know who was on the board. A cash system of bookkeeping alone is not necessarily suspect; however, Nobles’ complete control over the removal of the cash constituted such a loose financial arrangement that nothing whatever prevented Nobles from transferring any or all of the cash out of the corporation. The alter ego doctrine is designed to meet such inequities, and “(t)he shareholder who refuses to draw a line between his individual and corporate affairs is in a poor position to ask that the court effect what he failed to do.” Henn, supra.

Error in the trial court’s application of the doctrine of res ipsa loquitur is also alleged. Citing King v. King, 253 La. 270, 217 So.2d 395 (1968), Nobles urges that “(r)es ipsa loquitur is irrelevant when the body of proof consists of direct evidence adequately explaining the occurrence and establishing the details of the negligence charged.”

In Gonzales v. Winn-Dixie Louisiana, 326 So.2d 486 (La.1976) and Kavlich v. Kramer, 315 So.2d 282 (La.1974), the Louisiana Supreme Court described the order of proof required in cases such as this: when plaintiff has established that the cause of the accident was some allegedly negligent act of defendant, “(t)he burden then shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent.”

The Kavlich-Gonzales rule seems as applicable to a procedure for the maintenance of chairs as to the maintenance of floors when applied to one in whose sole control those chairs are maintained.

Appellant further contends that since Dillman (as an “unescorted lady”) received free drinks on the night in question, she was not an invitee but merely a gratuitous guest to whom no more than ordinary care was due.

It is a ready inference that the lounge owner’s giving free drinks to unescorted ladies was motivated as much by business reasons as by a munificent spirit toward unescorted females. We view the arrangement as one for mutual benefit. Such was held to be the basis of invitee status in Brown v. State Farm Fire & Casualty Company, 252 So.2d 909 (La.App. 2nd Cir. 1971).

Towards an invitee “. . . the duty owed is that of reasonable and ordinary care, which includes the prior discovery of reasonably discoverable conditions of the premises that may be unreasonably dangerous, and correction thereof or a warning to the invitee of the danger. (Citations omitted.) The owner, occupant, or person in charge of property [owes to] an invitee * * * the duty of exercising reasonable or ordinary care for his safety and is liable for injury resulting from breach of such duty. This duty includes that of exercising reasonable care to keep the premises in a reasonably safe and suitable condition or of warning invitees * * of hidden or concealed perils of which he knows or should know in the exercise of reasonable care, so that those whom he has invited to enter upon or use his property shall not be unnecessarily or unreasonably exposed to danger.” Id., at 911. Accord, Radial v. Brookshire Grocery Stores, Inc., 336 So.2d 1014 (La.App. 3rd Cir. 1976), writ refused 339 So.2d 358; Brown v. Southern Ventures Corp., 331 So.2d 207 (La.App. 3rd Cir. 1976), writ refused 334 So.2d 211; Miller v. Broadmoor Village, Inc., 321 So.2d 925 (La.App. 1st Cir. 1975), writ refused, 325 So.2d 276.

The trial judge found that Nobles did not inspect the chairs weekly, as his uncontradicted testimony indicated. Thus, the court made a factual conclusion that he had breached the applicable standard of care.

On this issue, Nobles alleges error in the trial judge’s disregard of his allegedly uncontroverted testimony. There is no merit in this contention. There are many instances where a trial judge’s disregard of unrefuted testimony has been contested and upheld. See Succession of Terral, 312 So.2d 296 (La.1975).

Turning to Dillman’s contention that there should be an increase in quantum, note is taken of the wide range of discretion of the trial judge in such determinations. We find no abuse. The judgment of the trial court is affirmed.

AFFIRMED.

LEMMON, J., concurs.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Keland GENTRY and Ellen Lynn Gentry v. Jefferson BARBER, Individually and State Farm Mutual Automobile Insurance Company.
    No. 8397.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.
    Brumfield & Brumfield (William P. Brumfield, Baton Rouge), for plaintiffs-ap-pellees.

      Porteous, Toledano, Hainkel & Johnson (Henry Leon Sarpy), New Orleans, for defendants-appellees (State Farm).
    Pitard, Pitard & Porobil, New Orleans, James E. McGuire, New Orleans, for defendants-appellants (August Mitchell and Checker Cabs, Inc.).
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

This is a. tort action arising out of an automobile accident which occurred at the intersection of Jefferson Davis Parkway and Tulane Avenue in New Orleans on September 16, 1974.

Plaintiffs were passengers in a taxicab driven by defendant, August Mitchell, and owned by defendant, Checker Cabs, Inc. Before the accident the cab was proceeding west on Tulane Avenue and upon reaching the northbound side of Jefferson Davis Parkway the cab collided with an automobile owned and operated by defendant Jefferson Barber.

Plaintiffs brought suit ¿gainst Barber, Mitchell, and Checker Cabs along with State Farm Mutual Automobile Insurance Company, their own uninsured motorist carrier. Various third party demands were also filed by the defendants.

The trial judge rendered judgment in favor of plaintiffs against Barber, Mitchell and Checker Cabs jointly and in solido, and dismissed plaintiffs’ claim against State Farm Mutual Automobile Insurance Company, as well as the various third party demands. From this judgment Mitchell and Checker Cabs have appealed and plaintiffs have answered the appeal seeking damages for frivolous appeal, an increase in the quantum of damages awarded by the trial court, and a reversal of the judgment dismissing their suit against State Farm in the event that Mitchell and Checker would be exonerated from liability in this court.

Mitchell and Checker specify two errors in the judgment of the trial court for our consideration:

1. The finding of negligence on Mitchell’s part, and

2. The failure to hold State Farm liable in solido with them.

As to the issue of negligence on Mitchell’s part, the trial court found that both drivers were negligent in entering an intersection with a non-functioning light when it was unsafe to do so at an unsafe speed and without sufficient observation. Our examination of the record discloses that evidence was before the trial court to support these findings.

This intersection is a major one between two avenues divided by neutral grounds. Ordinarily the intersection is controlled by an electric semaphore signal, but it is undisputed that the signal was not operating at the time of this accident. According to Mitchell there was a temporary stop sign facing Jefferson Davis Parkway. Mitchell was thoroughly familiar with this intersection before the accident and specifically acknowledged on the witness stand that a dangerous situation existed at the time of the accident when the traffic lights were not functioning. While he denied that he was exceeding the speed limit both of the plaintiffs testified that he was exceeding the speed limit prior to the accident and that he had been talking and looking around at plaintiffs over his shoulder just before the accident. Mitchell testified that he did not see Barber’s car until he was eight feet from Jefferson Davis whereas Mrs. Gentry testified that she saw Barber’s automobile from the back seat of the cab while they were 25 feet from the intersection. These bits of evidence amply support the trial judge in his findings, especially considering that a cab driver must exercise the highest degree of care in the transportation of his passengers and any negligence however slight subjects the carrier to liability to the passengers. Young v. Fryoux, 222 So.2d 638 (La.App. 4th Cir. 1969).

On the other issue, Mitchell and Checker contend that State Farm should have been cast solidarily with them in view of the fact that Barber, a joint tort feasor with Mitchell, was uninsured. They cite no authority for this proposition and acknowledge that Fouquier v. Travelers Insurance Company, 204 So.2d 400 (La.App. 1st Cir. 1967), is directly contrary to their position. We are not persuaded to depart from the result in the Fouquier case especially considering the fact that State Farm’s liability is strictly contractual, plaintiffs are Tennessee residents, presumably the policy was issued in that state, and the policy was not introduced in evidence. In order to reach the discussion about the nature of State Farm’s liability, a basis for that liability would have to be established. In the first instance, only the insurance policy could support liability and it is not before us.

Plaintiffs have apparently conceded that they are not entitled to any relief under their answer to the appeal.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: STOULIG, Judge.

text:
    Lois M. SMITH v. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY.
    No. 8401.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.
    Writ Refused Jan. 11, 1978.

      Chaffe, McCall, Phillips, Toler & Sarpy, Wiley G. Lastrapes, Jr., New Orleans, for plaintiff-appellee.
    Porteous, Toledano, Hainkel and Johnson, Christopher E. Lawler, Daniel R. Hynes, New Orleans, for defendant-appellant.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   STOULIG, Judge.

This is an appeal by The National Life and Accident Insurance Company from a judgment adopting a jury verdict which (1) awarded Lois Smith $4,000 for loss of eyesight due under an insurance contract issued by defendant; (2) assessed a $4,000 penalty and a $3,000 attorney fee under R.S. 22:657; and (3) ordered defendant to issue the $1,000 paid-up life policy due should loss of eyesight occur.

We quote the language from the benefits and limitations sections upon which defendant relied to deny the claim:

“Benefits. Upon surrender of this policy and receipt during the lifetime of the Insured of due proof that he has suffered a loss of eyesight or limb (as defined below), and has survived such loss for at least 30 days, the benefit for such loss shall be payable. Loss of eyesight of the Insured shall mean the complete and irrecoverable loss of sight of both eyes before his 70th birthday. * * *
“Upon the payment of a benefit for loss of eyesight or limb hereunder, the Company shall, in addition to the payment of such benefit, issue a fully paid-up life insurance policy providing insurance in the face amount of this policy payable upon the death of the Insured.
“Limitations. No such benefit for loss of eyesight or limb shall be payable for losses caused by (a) disease contracted or injury sustained before the Date of Issue * * * 11

When this contract was written in March 1968, plaintiff was blind in her left eye, having lost her vision in it when she was seven or eight years of age. Plaintiff did not mention her partial loss of sight nor did the agent inquire about it. From the testimony of Mrs. Smith and her daughter Mrs. Saulter, it appears the eye had a milky or opaque appearance that would have been readily apparent to the most casual observer.

In May 1970 a cataract was removed from her right eye. She retained her vision until December 1971 when she awoke one morning to total darkness. Expecting her sight to return, she did not file a claim for loss of sight under the policy at issue until 1973.

For the purpose of deciding the coverage question, we need not determine whether the agent knew or should have known of her partial blindness. We interpret the quoted language to extend coverage to an insured who becomes totally blind while the policy is in effect and do not read the limitation to mean that the vision in both eyes must have been lost after the policy was issued. If we conceded the plausibility of defendant’s argument, it would not change the result because, viewed in the light most favorable to appellant, the language is ambiguous. Under C.C. art. 1957, the ambiguity must be resolved against the insurer.

Appellant next contends the jury erred in imposing the statutory penalties and attorney fees. We will not change the result because there is sufficient evidence to support a factual conclusion that the plaintiff’s claim was arbitrarily refused. The jury had the benefit of viewing this witness as she testified and possibly saw the milky left eye described by the witnesses. Further, the record would support a factual conclusion that the insurance representative, working on straight commission, did not ask the questions on the form that would have apprised the company of Mrs. Smith’s partial blindness. Absent manifest error, we will not reverse on fact.

Appellee has answered this appeal to seek an increase in attorney fees for the legal services rendered in connection with this appeal. There are no complex problems involved and we view a $3,000 fee ample to cover services rendered to plaintiff for both the trial and the appeal.

For the reasons assigned, the judgment appealed is affirmed.

AFFIRMED.

      . Pending this appeal Lois Smith died; her daughter was recognized as her heir in a judgment of possession and substituted as plaintiff-appellee.


text:
    Earl J. RODDY and Etienne P. Millet v. NORCO LOCAL 4-750 OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION.
    No. 8402.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.
    Writ Granted Jan. 11, 1978.
    William D. O’Regan III, LaPlace, for plaintiffs-appellees.
    Victor H. Hess, Jr. and Dennis M. Angelico, New Orleans, for defendant-appellant.

      Before STOULIG, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

At issue in this case is the liability of Norco Local 4-750 Oil, Chemical & Atomic Workers International Union (the Local) to plaintiffs for the amount of a judgment they previously obtained against Independent Oil & Chemical Workers Union of Louisiana (the Independent).

The protracted nature of this litigation can best be illustrated by considering that it began when plaintiffs filed suit on March 4, 1963, and it is now on appeal to this court for the fifth time. The case can best be understood without needless repetition by reference to the earlier opinions of this court, which will be cited hereafter.

Plaintiffs’ original suit against the Independent was dismissed by the trial court but that judgment was reversed by this court and remanded for further evidence in December, 1965, 181 So.2d 285. After trial on remand plaintiffs prevailed and on appeal their judgment was affirmed in January, 1968, 206 So.2d 114. In August, 1968, plaintiffs sought by summary proceedings to amend their judgment against the Independent to substitute as the judgment debt- or, the Local. The trial judge dismissed the motion and this judgment was affirmed on appeal in April, 1970, 233 So.2d 714. It was held that summary proceedings were not available to plaintiffs to substitute a new judgment debtor for the judgment debtor named in the suit after the judgment became final and definitive.

On April 1, 1975, plaintiffs brought suit against the Local seeking judgment in their favor for the amounts for which the Independent had been cast in the earlier judgment, including legal interest from March 4, 1963, until paid, and for all costs of all proceedings. In their petition they alleged that their original judgment against the Independent had not been satisfied; on March 1,1964, an affiliation agreement was entered into between the Independent and the Local with the result that the name of the Independent was changed to that of the Local; the officers and members of both entities were the same, all property both movable and immovable owned by the Independent prior to the affiliation agreement and name change continued to be owned by the Local; the purpose of each entity was the same; and the Local is the same legal entity as the Independent, the only change being in name.

Plaintiffs previously moved for and obtained a summary judgment against the Local, but on May 18, 1976, this court reversed that summary judgment on the ground that there were genuine issues of material fact raised in an affidavit filed by the Local in response to the motion for summary judgment, 332 So.2d 576.

The case has now been tried on the merits with the result that plaintiffs Millet and Roddy have obtained judgment for $2,330.55 and $2,420.55 respectively against the Local with legal interest from March 4, 1963, in addition to all costs. From that judgment the Local has appealed.

At the trial of the case plaintiffs offered in evidence the entire record of the proceedings, and some other documents. Defendant’s evidence consisted of the testimony of Dale Dutt, an officer of the Local.

The key documents introduced and relied upon by plaintiffs are a donation of immovable property by the Independent to the Local and pleadings filed by the Local in Civil Action No. 14518 on the docket of the United States District Court for the Eastern District of Louisiana, entitled “Independent Oil & Chemical Workers’ Union of Louisiana v. Shell Oil Company, Norco Refinery."

Turning first to the donation, this was an authentic act passed on August 20, 1964, in which the Independent donated to the Local real estate in St. Charles Parish. It recites that the Independent is a non-profit corporation organized in September, 1962, and that the Local is another non-profit corporation organized in August, 1964. The two corporations were represented by their presidents who were duly authorized by resolutions of the respective boards of directors of the corporations.

’ The pleadings filed by the Local on June 29, 1965, in federal court consisted of a motion, a memorandum and an affidavit by Jerry B. Murray, the Local’s president. The motion, entitled “Motion to Change Name of Plaintiff” contained the following statement:

“That since the bringing of this action wherein the Independent Oil & Chemical Workers of Louisiana was named plaintiff, the name of the plaintiff has been changed to Oil, Chemical & Atomic Workers International Union, Local 4-750 and in its latter name has succeeded to all rights and properties held under its former name.”

In his affidavit Murray recited: On March 1,1964, the Independent entered into an “affiliation agreement” with the Oil, Chemical & Atomic Workers International Union, A.P.L.-C.I.O. with the result that the name of the Independent became “Independent Oil, Chemical & Atomic Workers Union of Louisiana affiliated with the Oil, Chemical & Atomic Workers International Union,” the officers and members of the Independent were the same as the affiliated Independent. All property, movable and immovable, owned by the Independent continued to be owned by the affiliated Independent. The purposes remained the same. The officers and stewards continued to administer the contract with Shell Oil Company and the activities continued to be the same as they had been with the Independent. On July 8, 1964, a local charter for Norco Local 4-750 was obtained from the International Union with the results that the officers of the Independent affiliate became the officers of the Local performing the same functions they had performed previously, the membership was identical, all property, movable and immovable, of the affiliated Independent became the property of the Local, including the union hall and bank accounts.

At the trial Dale Dutt testified: After the local was organized a petition for recognition as the bargaining agent for the employees at Shell Oil & Chemical Company was filed by the new union. A certification election was held and the result was that the new union became the bargaining agent for the oil workers but the chemical workers remained independent although both oil and chemical workers had theretofore belonged to the Independent Union. The only obligation assumed by the Local was the exercise of bargaining rights for the workers at the oil refinery.

The main thrust of plaintiffs’ case is that defendant is the same entity as their judgment debtor, i. e., only the name has changed. But plaintiffs’ own evidence, namely, the act of donation establishes that the Local and the Independent are separate non-profit corporations created on different dates. Thus, plaintiffs’ first argument fails. The Local cannot be considered the same entity as the Independent.

The next question is whether the Local is legally liable for the Independent’s debts by virtue of the “affiliation agreement.” Surely, by written contract between the Local and the Independent, the former could assume the latter’s debts to plaintiffs. LSA-C.C. Art. 2278(3). But the evidence does not even suggest that the “affiliation agreement” had this effect. On the contrary, the only evidence even touching upon the “affiliation agreement” was the affidavit of Murray to the effect that the Independent made an “affiliation agreement” on March 1, 1964, with the Oil, Chemical & Atomic Workers International Union, A.F.L.-C.I.O. According to the act of donation defendant, the Local, was not created until August 11,1964, so it was not even in existence when the “affiliation agreement” was made.

Although plaintiffs have not provided us with any authority which might afford a basis for the Local’s liability to them, we have considered the following principles stated in Wolff v. Shreveport Gas, Electric Light & Power Co., 138 La. 743, 70 So. 789 at 794 (1916):

“According to the consensus of judicial opinion in this country, a newly organized corporation is liable for the debts of an old one, to the business and property of which it has succeeded, where it is shown that the succession was the result of a transaction entered into in fraud of the creditors of the old corporation, or that the circumstances attending the creation of the new, and its succession to the business and property of the old, were of such a character as to warrant the finding that the new, is merely a continuation of the old, corporation. The courts are also agreed that there can be no consolidation of corporations, and no merger of one into another, and particularly of a domestic into a foreign corporation, without legislative authority, general or specific, and the consent of all of the shareholders; that the properties of a corporation constitute a trust fund for the payment of its debts; and that, where there has been a misappropriation of such funds, or (according to the better opinion, as we think) the corporation has been devested thereof by consolidation, merger, reorganization, or ‘reincarnation,’ not only may the fund be followed, by the aid of equity, for the benefit of the creditor, but he may recover, in an action at law, against the corporation which has taken over such find, with the business of his debtor.
There is not the same concurrence of opinion upon the question whether, or under what circumstance, the mere absorption by one corporation of the property and business of another operates as a merger of such other corporation, or subjects the property so absorbed to the claims of its creditors, or the absorbing corporation to liability for such claims. In the case of a sale, in good faith, of the property and business of a strictly private corporation, duly authorized by its shareholders, to a third person, for an adequate consideration, the property would no doubt pass free of incumbrance, and the creditors would be relegated to the proceeds in the hands of the debtor corporation; but, where the purchaser is a new corporation, composed of the same shareholders as the old, the transaction, in no manner, affects the rights of the creditors of the old corporation, who may proceed for recovery of the amounts due them against either corporation, or both; and that, whether the claims be founded in contract or tort, since the real debtor, though represented by two corporations instead of one, remains the same, in contemplation of law.” (Emphasis supplied)

This was a tort suit arising out of a gas explosion against the old company and its successor company. All of the assets of the original company were transferred to the new company for “$1,000 and other good and valuable consideration.” It was the expressed intention of the parties “that the New Company shall take over and acquire the entire property and business of the Old Company as a going concern.” The management, ownership and employees of the old company remained virtually the same in the new.

The court found that evidence “discloses the earmarks of persons dealing with themselves, and threw upon them the burden of proving that it was, in fact, a sale, for adequate consideration, between different persons.” Holding that the new company failed to carry its burden, the court concluded:

“It is evident that, where the question at issue is whether the corporation executing, and the corporation receiving, the transfer, are controlled by the same persons, the same reasons exist for putting the burden of proof on them, as against an unpaid creditor, as where, the identity of the control being admitted, the question is as to the verity and good faith of the transfer.”

We perceive from the foregoing that the court’s ultimate conclusion was that the new company was in bad faith and for this reason it was held liable for the old company’s liability to plaintiff. We find not the slightest suggestion of bad faith on the part of the Local and the Independent in the instant case.

Unlike the cited case which involved a utility company with ongoing actual and contingent liabilities to third persons, the Independent was a non-profit corporation whose primary function was to represent employees in collective bargaining. The record does not suggest that the Independent had any obligations when the Local was formed other than the then contingent liability to plaintiffs. At the point in time when the Local was created in August, 1964, plaintiffs’ case against the Independent had been lost in the trial court and was on appeal to this court. Not until December, 1965, did this court decide the case in plaintiffs’ favor. Thus, the timing of these events belies any suggestion of bad faith on the Independent’s part with respect to plaintiffs’ claim motivating the Independent to transfer its assets to the Local in order to defeat plaintiffs’ claim. On the contrary, the only inference which can be drawn from the evidence is that the creation of the Local and its receipt of the assets of the Independent was accomplished for some legitimate purpose in connection with the activities of the union. Neither the plaintiffs’ claim nor that of any other creditor had anything whatsoever to do with the arrangements between the Independent and the Local.

The distinction we have made is supported by a consideration of other cases which have followed and applied the principles of the Wolff case.

In Heard v. Monroe Sand & Gravel Co., 9 La.App. 568, 121 So. 642 (1928), a new corporation was held liable for lease payments contracted for by one of the individual in-corporators to the plaintiff in a lease made before the corporation was formed. The lease obligated Stephenson to pay plaintiff for gravel taken from plaintiff’s property. After the corporation was formed in December, 1922, it began to pay the royalties to plaintiff pursuant to Stephenson’s contract, and continued with 33 monthly payments until October, 1925. In the meantime the corporation was removing sand and gravel under Stephenson’s management. The court made the following observation:

“Under such circumstances, the conclusion that this was a Stephenson organization, and that the business of the corporation was but a continuation or a “reincarnation” of Stephenson’s business under a new guise, is inescapable.
“With regard to liability for debts of the old corporation, the general rule is that a new corporation organized to succeed an old one is not liable for the debts of the latter. The new corporation, will, however, be liable for the debts of the old one (1) where the circumstances are such as to warrant the conclusion that the former is not a separate and distinct corporation, but merely a continuation of the latter, and hence the same person in law.”

The court cited the Wolff case as authority but we think that the facts of the Heard case demanded the result obtained and there is no comparison between its facts and those developed by the plaintiffs in the instant case.

In Wilson v. Lagasse, 12 La.App. 704, 127 So. 17 (1930) the Wolff case was again relied upon but here again its facts distinguish it markedly from the instant case. There the court held a corporation liable for an individual’s debt where “the incorporation was a mere sham and a delusion, and was resorted to solely for the purpose of preventing execution by [plaintiff] and other creditors . . ..” Here again the key to this case seems to be a showing of an intention to defraud the creditor, an element lacking in the instant case.

We have concluded that plaintiffs’ evidence is insufficient to establish that the Local was simply a continuation of the Independent so as to warrant the result reached in the cited cases. The creation of the Local was motivated by considerations having nothing to do with the claim of plaintiffs or any other creditors. It was simply a logical step in the development of a union which was affiliated with the international A.F.L.-C.I.O. Since there is no showing or even suggestion of fraud or bad faith in connection with the formation of the Local there is no basis for concluding that it is liable for the debt of the Independent to plaintiffs.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of defendant, Norco Local 4-750, Oil, Chemical, and Atomic Workers International Union, and against plaintiffs, Earl J. Roddy and Etienne P. Millet, dismissing their suit at their cost.

REVERSED AND RENDERED.


text:
    T. W. GANUS v. Russell L. CUOCO and Board of Levee Commissioners of the Orleans Levee District.
    No. 8413.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.
    Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for plaintiff-appellant.
    Richard J. McGinity and D. A. McGovern, III, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and BEER, JJ.
   BEER, Judge.

This is an appeal from a trial court dissolution of a temporary restraining order and refusal to preliminarily enjoin Russell L. Cuoco (plaintiff-appellant’s sublessor) and the Board of Levee Commissioners of the Orleans Levee District (hereafter, “Levee Board”) from obstructing and preventing boating public access to appellant’s leasehold where he operates Plantation Fried Chicken. Appellant, Ganus, contends that the sublease which he holds from appellee, Cuoco, grants the boating public the use of docking facilities and, thus, access to his leased property. Specifically, he claims the right to have his property accessible to the boating public passing alongside the property in the waters of the New Basin Canal.

The lease agreements giving rise to this disputed claim are as follows:

1. By a lease dated March 31, 1964, the Louisiana Department of Public Works leased to Russell L. Cuoco a portion of land on the east side of the New Basin Canal, measuring 387 feet by 77 feet. This lease made no mention of fronting on the New Basin Canal. However, the terms of the lease specifically provide for mooring privileges and set forth conditions governing lessee’s construction of boathouses and the installation of pilings and “whaling strips” at dockside.
2. By lease dated October 19, 1964, Cuo-co subleased to Ganus Realty Company, Inc., property described as follows:
“A certain portion or strip of land on the east side of the New Basin Canal property between Lake Avenue and U. S. Coast Guard reservation, measuring 218 feet width and front on West End Boulevard by a depth of approximately 77 feet, and fronting in the rear on the New Basin Canal, all as more fully shown on the survey annexed hereto and made part hereof.” (Emphasis added.)
A survey of the property showing its western boundary as being on the “New Basin Canal (Side)” was attached to the lease.
The lease provided further:
“It is understood and agreed that the Tenant shall have the right, at its expense, to construct improvements on the premises, and it is contemplated that Tenant will construct a restaurant building. Plans and specifications for the building shall be submitted to Landlord for approval, and such approval shall be granted or refused within ten days from the submission of said plans, it being agreed that the approval and consent will not be unreasonably withheld.”
3.By notarial assignment dated August 1, 1967, Ganus Realty Company, Inc. assigned to T. W. Ganus all of its rights, interest and title under its written sublease.

Then, pursuant to the provisions of the sublease, Ganus submitted plans to Cuoco for the construction of a Plantation Fried Chicken restaurant and parking area. These plans included a boat docking area, so designated. The plans were, in turn, submitted by Cuoco to the Orleans Levee Board (which had, by then, acquired the property along the canal from the Department of Public Works and was, by then, the undisputed owner thereof). By letter to Cuoco dated November 14, 1966, the Levee Board, as owner, approved the plans submitted by Cuoco on behalf of his sublessee, Ganus.

The Levee Board letter approving Ganus’ plans refers to “the maintenance and operation of two-hundred and eighteen (218) feet Boat Landing along the east side of the New Basin Canal.” Furthermore, the approval was subject to the following conditions:

“1. That the improvements shall be installed in strict accordance to the plans, submitted this office, by Mr. T. W. Ganus.
2. That the facilities will be maintained in top condition at all times.
3. That the Parking Area shall be available for the patrons of the restaurant and the boating public.
4. That the facilities for launching boats, now in operation, under your lease, shall be continued in operation by you, or your Sub-lessee, to serve the boat owners of this vicinity.
5. That this approval is granted with the understanding there shall be no claims against the Board by you, or your Sub-lessee, because of the time involved in the approval of these plans.” (Emphasis supplied.)

Upon taking possession of the premises, Ganus made improvements to the dock and bulkhead fronting on the New Basin Canal and maintained it continuously since that time until the commencement of those incidents which provoked this litigation. Signs were posted along the dock indicating it was for the use of customers of Plantation Fried Chicken. Appellant estimates that 20-25% of his customers arrive by boat to patronize his establishment during the summer months.

Upon appellant’s alleging that the Orleans Levee Board has approved plans by Cuoco to construct 20 boat slips in the canal in back of Ganus’ leasehold, and upon further alleging that on August 27, 1976, persons acting on behalf of Cuoco and/or the Levee Board trespassed on the property for the purpose of laying out the configuration of the boat slips in anticipation of immediately starting construction, a temporary restraining order issued on August 31, 1976. However, this order was dissolved and a preliminary injunction denied on September 10, 1976, leading to this appeal.

In its brief written reasons for judgment, the trial court made it quite clear that its decision was based upon the survey attached to and made part of the lease from Cuoco to Ganus. The entire basis for the court’s conclusions regarding the configuration and boundaries of the leased premises was, obviously from the written reasons, based upon the testimony of surveyors, called in behalf of Cuoco, who expressed the opinion that the survey designation “New Basin Canal (Side)” was conclusive proof that the west side of the leased property did not abut the New Basin Canal but only that its western side was in the direction of the New Basin Canal. Accordingly, the trial court not only rejected the parol evidence proffered by Ganus but rejected any consideration of it. The parol evidence was proffered for the specific purpose of showing the intention of the parties at the time the lease was confected with regard to access, via the docking facilities, by the boating public. This evidence included the exchanges of correspondence between the leasing parties specifically dealing with the use of the leased premises and the access thereto by the boating public as well as evidence regarding Ganus’ actions in maintaining the accessway and the use of same by the boating public for many years preceding the events precipitating this litigation. Appellant contends that the refusal of the trial court to consider the proffered parol evidence was error which was directly causative of the trial court’s failure to grant the relief sought.

It is generally correct that where there is a conflict between the description in a deed and that shown by an attached map, the map controls the description. Canal Bank v. Copeland, 6 La. 543; Buras v. United Gas Pipe Line Company, 127 So.2d 271 (La.App. 4th Cir., 1961); Missouri Pacific R. R. Co. v. Littleton, 125 So.2d 37 (La.App. 2nd Cir., 1960); South La. Fair Assn. v. Robert, 3 La.App. 505 (La.App. 1st Cir., 1925). However, this general rule has not been applied to unequivocably preclude a full and fair determination of the true intent of the parties.

This court has previously considered the issue of whether or not parol evidence of the intent of the parties should be admitted to show the extent of property conveyed in spite of the attachment of a survey to the deed. In James v. Buchert, 144 So.2d 435 (La.App. 4th Cir., 1962), the facts were similar to those of the case at bar. Plaintiff and his ancestor in title entered into an agreement purporting to create a servitude of passage 100' in length, running across property to be retained by vendor. A survey attached to the deed showed the servitude as running across both the 100' tract of vendor and the 63' tract purchased by plaintiff. Subsequently, vendor sold the 100' tract to defendant, who claimed that the servitude was in fact 163', as shown by the survey, and not 100' as described in the deed. We disagreed:

“While we do not dispute the defendants’ contention that ordinarily the general rule is that where there is a conflict between the deed itself, and the map, survey or plat referred to in the deed, that the latter controls even though the deed itself is unambiguous. However, we do not believe that it applies in a case such as this where it is clear from the evidence adduced below that neither the vendor nor the vendee in the original instrument intended such a result.” Id., at 438.

Thus, parol evidence was accepted as proof of the intent of the original vendor and vendee to create only a 100' servitude.

The same result was reached by the First Circuit in Burt v. Carrier, 92 So.2d 86 (La.App. 1st Cir., 1957). There, the act of sale contained language specifically excluding from the sale a tract of land containing vendor’s home, golf course, and a roadside club, “all of said reservation being accurately and specifically described and delineated on the plat of survey attached hereto and made a part hereof and paraphed ‘Ne Var-ietur’ by me, Notary, for identification herewith.” However, the survey failed to show the reservation of this tract. After hearing parol evidence of the intent of parties not to convey the tract in question, the court concluded that the signing of the plat by vendor “was an act of error on the part of the vendor, and would not change the obvious intention of the parties as expressed in the written act of sale.” Id., at 88.

Here, we are dealing with an instrument that clearly leases property “fronting” on the New Basin Canal. Yet, the trial court has interpreted this instrument by referring to the attached survey which, only by implication and interpretation, can be contended to exclude water frontage or, specifically, docking access by the boating public who may seek to patronize Ganus’ fried chicken emporium. The trial court has concluded that the use of “New Basin Canal (Side)” on the survey positively precludes any finding of Ganus’ right to have his property accessible to the boating public notwithstanding the parol evidence which is very much indicative of the contrary result.

The lease from Cuoco to Ganus which describes the property as “fronting in the rear on the New Basin Canal” is only rendered ambiguous by reference to the survey which, according to the surveyors called by Cuoco, has the effect of relocating the boundary line of the leasehold from “fronting in the rear on the New Basin Canal” to being only on the “New Basin Canal (Side).”

Cuoco, therefore, is in the position of contending that the lease, which was clear enough standing alone, is now rendered ambiguous by reference to the attached survey. Yet, he further contends that this apparent ambiguity cannot be resolved by parol evidence because the survey is unambiguous.

Even assuming the nonambiguity of the survey as interpreted by Cuoco’s witnesses, the fact that a real controversy exists as to the intention of the parties forms a valid basis for the consideration of parol evidence of those intentions. See James v. Buchert, supra, and Burt v. Carrier, supra, as well as Ziegler v. Babin, 242 So.2d 593 (La.App. 1st Cir., 1970), and Blackwell v. Nagy, 122 So.2d 903 (La.App. 1st Cir., 1960), wherein parol evidence was considered to determine the intentions of the parties even though the documents unambiguous.

The Louisiana Civil Code establishes a procedure for the interpretation of ambiguous contracts in the following pertinent articles:

Art. 1945.
U * * *
Second — That courts are bound to give legal effect to all such contracts according to the true intent of all the parties;
Third — -That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences;
Fourth — That it is the common intent of the parties — that is, the intention of all — that is to be sought for; if there was a difference in this intent, there was no common consent and, consequently, no contract.”
Art. 1950.
“When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.”
Art. 1956.
“When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.”

These rules have been applied to lease contracts, as in Hebert v. Valenti, 235 So.2d 193 (La.App. 4th Cir., 1970), wherein we observed:

“It is well settled in our jurisprudence that in interpreting the terms of a contract, the intention of the parties is the law of the case. LSA-C.C. arts. 1945, 1950; Welch-Eckman Const. Co. v. Vancouver Plywood Co., La.App., 213 So.2d 134; Grace v. Morales, La.App., 210 So.2d 60. Furthermore in interpreting a lease contract the court may consider all pertinent facts, including the interpretation given the contract by the parties themselves. Maxwell, Inc. v. Williams-McWilliams Industries, Inc., La.App., 128 So.2d 674.” Id., at 197. See also, Marcann Outdoor, Inc. v. Hargrove, 140 So.2d 815 (La.App. 3rd Cir., 1962).

Upon consideration of the parol evidence proffered at trial, we find that it was the intention of all interested parties that sublessee Ganus enjoy such use of the leased property as to be able to serve the boating public. The sublease makes no provision for the use of water bottoms which is not claimed by appellant. However, this does not affect our positive conclusion that ordinary and regular access to Plantation Fried Chicken by the boating public who seek to patronize same from their boats in the New Basin Canal was reserved in the lease but is now impinged upon and, in fact, nullified by the construction of boat slips directly in front of that dockway. Such construction clearly inhibits the intended access by the boating public as contemplated by the parties at the time the lease was confected.

That the intent of the parties was for the customers of the restaurant to have use of the dock, thereby increasing the attractiveness of the property for an enterprise such as sublessee’s, is clear from the testimony of Ganus under cross-examination and unchallenged by Cuoco:

“BY MR. McGOVERN:
Q. I submit to you a copy of the sublease and ask you, since you and your attorney both prepared it, where does the language come from ‘fronting on the rear on the New Basin Canal or as more fully shown on the survey shown and annexed hereto.’
A. The language came to me and my attorney because it was explicit that I wanted the canal if I had the lease. Otherwise I wasn’t interested in the lease.
Q. Is the language explicit that you wanted the survey attached to the lease?
A. The survey was handed to us as part or helped to draw the lease.
Q. You still put into the description, ‘. . . all as more fully shown oh the survey as shown and annexed hereto.’
A. My attorney — I expressly insisted that — We knew there was two, three, four, six, eight feet behind the property. This would eventually prevent us fronting on the canal. Therefore, we must, if we get the lease, we must front on the canal, and therefore, at the suggestion of my attorney we expressed then that the property is more or less fronting on the New Basin Canal. We felt that this was adequate in our discussions with Mr. Cuoco and his attorney. Apparently, this was acceptable to him to clarify the matter.
Q. Was it in addition by you and your attorney ‘. . . as more fully shown on the survey and annexed hereto?’
A. My attorney does the legal phraseology-
Q. I’m sorry!
A. If I feel this is adequate to convey to the two parties the intent of the lease I agree to it.
Q. Did you inspect the Harris survey of ’64 before attaching it to the lease?
A. I looked at it but, Cuoco mentioned there was some additional space behind and we wanted it clearly understood we would front on this canal.”

Ganus’ plans, which were submitted by Cuoco and approved by the Levee Board, were referred to as plans “for the maintenance and operation of two-hundred and eighteen (218) feet Boat Landing along the east side of the New Basin Canal.” Any doubt that the maintenance and operation of such a docking facility was to be the responsibility of Ganus is resolved by examining the manner in which the parties operated pursuant to the agreement. It was Ganus who made improvements to the dock, maintained it continuously since the date of the lease, and posted signs reserving same for the use of his customers among the boating public. All of this was done without objection from Cuoco and/or the Orleans Levee Board. It was only when, years later, the growing demand for boat slips presented an opportunity for enrichment that the intentions of the leasing parties purportedly came into question.

We find that the lease gave Ganus the right to have the boating public pull up to and make use of the dock side for the purpose of patronizing his emporium, and that neither Cuoco nor the Orleans Levee Board may inhibit this use through construction of boat slips or any other facility which blocks the docking ability of the general boating public for the duration of Gan-us’ lease with Cuoco. Accordingly, we reverse and remand the case to the Civil District Court for the Parish of Orleans for the expeditious formulation and issuance of an appropriate preliminary injunction by the trial court such as will preserve the rights of the appellant, Ganus, consistent with the views expressed in this opinion at appellee Cuoco’s costs.

REVERSED AND REMANDED.

      . In this respect, the injunctive order ultimately rendered by the trial court in accordance with this opinion may limit the boating public’s access to the Plantation Fried Chicken emporium in terms of the amount (or length) of docking space. The critical point that must be addressed in framing the order granting injunc-tive relief is that there be reasonable boating public access consistent with the original intention of all parties at interest.


text:
    Linda Altenberg VERLANDER, wife of/and Richard G. Verlander, Jr. v. Raymond L. HOFFER.
    No. 8418.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearings Denied Nov. 10, 1977.
    Writs Refused Jan. 11, 1978.

      Polack, Rosenberg, Rittenberg & Endom, Franklin V. Endom, Jr., New Orleans, for plaintiffs-appellants.
    Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   BEER, Judge.

This is a quanti minoris action brought by the purchasers of a home with a leaky roof which, they allege, constituted a redhibitory vice.

On July 21,1975, appellants Mr. and Mrs. Richard G. Verlander purchased a 25-year-old house, with its original roof still, apparently, intact, from appellee, Raymond L. Hoffer. Very soon after the sale, during a siege of heavy and repeated rainfall, appellants discovered numerous leaks in the roof. The cause of these leaks was found by the trial court to result from deterioration of the roofing felt paper, which had developed over a period of years and existed at the time of the sale to appellants. The trial judge further found that the condition could not have reasonably been detected upon inspection, and that both parties had dealt with each other in good faith.

Appellants obtained several estimates and then accepted the lowest bid for replacement of the roof at a cost of $3,295.00. Since that particular bid provided that the original 60 pound weight felt roofing paper was to be replaced with 30 pound weight, appellants contracted for the application of an additional layer of 30 pound weight paper, and also a drip edge to prevent water from being blown up under the roofing materials. These “extras” cost an additional $440.00, bringing the amount actually expended to $3,735.00.

The trial judge awarded $1,500.00, being of the view that such was the amount by which the parties would have adjusted the price of the house had they known of the true condition of the roof prior to the sale.

From this judgment, appellant appeals, seeking an increase to $3,735.00.

Appellee answers the appeal, contending trial court error in finding a redhibitory defect entitling appellant to any judgment. Alternatively, he contends that even if a redhibitory defect existed, damages should be limited to the cost of repairing the old roof ($1,200.00 according to appellee’s expert witness’ testimony) and not the cost of total replacement.

The record supports the trial judge’s finding that the deteriorated condition of the felt existed at the time of the sale. According to the testimony of Bruner Mallet, an independent roofer, the deterioration had existed for several years. (Tr. 20.) Louis Schwander, proprietor of Orleans Sheet Metal Works and Roofing, testified that such deterioration develops very gradually, and could not have been a recent or sudden development. Additionally, he testified that it was not unusual for such a deteriorating roof to fail to leak for some time, then for a wind from a certain direction, or a spray, or a hard driven rain to set off a series of leaks. (Tr. 56.)

In Goldberg v. Oliver, 212 So.2d 277 (La.App.3rd Cir., 1968) cert. denied 253 La. 649, 219 So.2d 178, the court dealt with a main roof which was old and worn but did not leak at the time of the sale or later, and a flat shingle roof over the back of the house, which did leak prior to the sale of the house. Judgment was rendered for the cost of repairing the leak about which seller knew but failed to disclose to purchaser. Plaintiff had sought to recover the cost of replacing the entire roof which was “a very old one and outlived its useful years.” In denying this theory of recovery, the court noted:

“There is no evidence in the record indicating that the main roof of the living area of the house had any leaks at the time of the sale, or that it leaks now. ******
“We have found no case which has announced the proposition that a roof on the used home, which is suffering merely from its age and normal wear, is a vice or defect sufficient to warrant the invocation of an action in redhibition.” Id., at 278.

Unlike the roof in Goldberg, the roof here is no longer able to serve its intended purpose. While the Goldberg plaintiffs had full reason to know that they were getting an old roof, plaintiffs here had no reason to expect they would get a leaking roof.

Glynn v. Delcuze, 149 So.2d 667 (La.App.4th Cir., 1963), and Di Pietro v. Le Blanc, 68 So.2d 156 (La.App.1st Cir., 1953), are close to the facts of this case. In Glynn, supra, plaintiff purchaser had lived as a tenant in the property he later purchased, and had noticed several defects. However, the leaking of the roof (resulting from broken shingles) was not among the defects he had observed, and he sued in redhibition for the cost of replacing the roof. The court recognized the leaky roof as a redhibitory defect.

Similarly, in Di Pietro, supra, the court recognized a leaky roof as a redhibitory vice, and remarked:

“The fact that the house was four or five years old when plaintiff purchased it is not material to the issue under the cases we have examined, and particularly under cases covering the sale and purchase of used automobiles. We think that a roof of a house should be free from leaks, the same as any other part of the house should be free from defects, and where a seller does not declare them, he is responsible. The roof is just as much a part of the house as the beams and foundation itself. We do not see any difference between a defective second-hand automobile which would not serve the purpose for which it was purchased and a house with a leaky roof.” Id., at 159 (citations omitted). Accord, Sallinger v. Mayer, 304 So.2d 730 (La.App.4th Cir., 1974); Russell v. Bartlett, 139 So.2d 770 (La.App.4th Cir., 1961).

The fact that defendant in Di Pietro, supra, as the builder was held to knowledge of the defective roofing and, therefore, was in bad faith, did not dictate the result there. Good faith or lack of knowledge does not preclude recovery in a redhibitory action. La.Civ.Code art. 2531 (as amended by Acts 1974, No. 673, Sec. 1).

Appellants contend that in quanti minoris actions involving real estate, the damages to be awarded are measured by the amount necessary to convert the unsound structure into a sound one. In Lemonier v. Coco, 237 La. 760, 112 So.2d 436 (1959), the Supreme Court of Louisiana observed:

“In a successful action for a reduction of the purchase price the amount to be awarded is the difference, at the time of the sale, between the value of the thing sold in its defective condition and its value as warranted. (Citations omitted.) However, with respect to the sale of realty, unless there has been an immediate resale, the difference is not readily and easily ascertainable. As a consequence, this Court has declared that in such a case the allowable diminution is ‘the amount necessary to convert the unsound structure into a sound one’ (McEachern v. Plauche Lumber & Construction Co., Inc., 220 La. 696, 57 So.2d 405, 408) or, as otherwise expressed, ‘the cost of repairs necessary to make the thing whole’ (Wilfamco, Inc. v. Interstate Electric Company, 221 La. 142, 58 So.2d 833, 834).” Accord, Wilfamco, Inc. v. Interstate Electric Company, 221 La. 142, 58 So.2d 833 (1952); Fraser v. Ameling, 277 So.2d 633 (La.1973); Rodriguez v. Hudson, 79 So.2d 578 (La.App.4th Cir., 1955); McEachern v. Plauche Lumber & Construction Co., Inc., 220 La. 696, 57 So.2d 405 (1952).

Further, appellants contend that the cost of replacement is an appropriate amount to award if any lesser repair will not convert the unsound structure into a sound one, citing Glynn v. Delcuze, supra, and Di Pietro v. Le Blanc, supra, where, in each case, the respective courts found that the roofs could not be repaired and had to be replaced.

In basing its award on the amount by which it felt the parties would have adjusted the purchase price had they known of the vice, the trial court made the following observations:

“I make the following factual finding, that the house at the time of the sale was approximately twenty-five years old; that the original roof was still on the house at the time of its purchase by the plaintiffs; and that he was aware of the age of the house, and the fact that it was the original roof.
“I also find there was no representation to the contrary to him by anyone, nor any representation to him concerning the condition of the roof, specifically, as opposed to the house, generally.
“I find as a fact, also, that the roof did not leak prior to the sale. However, I also find that the testimony preponderates in favor of the fact that the felt paper on the roof was in a deteriorated condition at the time of the sale as well as after, when the city was inundated with rain in the summer of .1975. I find that that was the quality of it when sold, which was not known to either the buyer or the seller. Both of them knew it was an old roof and subject to deterioration, .but neither knew that it was, in fact, in the deteriorated condition that it was. I find that that condition was not discoverable by just a normal inspection of the premises, and indeed, had never been discovered by either the buyer or seller. “I find both of them in absolute good faith in their dealings one with the other, and that the roof was in the condition, that it was simply about to go when we had very unusual rainfall which did occur shortly before and shortly after the sale. “I find, therefore, that the plaintiff is entitled to some relief, because I find that if he had known of the quality of the roof at the time that he made the purchase, the purchase would not have been made under the conditions it was without knowledge of that quality.
“On the other hand, I don’t find that the plaintiff is entitled to a new roof on the house at the defendant’s expense, because I think that if the parties had known that the roof was in the condition it was in, there would not have been an agreement by the parties to simply say I’ll give you a new roof.
“I also find, parenthetically, that probably the roof may have lasted for a number of years longer if we had not been inundated with rain; but nonetheless, we were, and it was, in fact, in a deteriorated condition at the time of the sale.
“Under the circumstances, all I can do to adjust between the parties is what I think is a fair adjustment to the price that was paid for the house, recognizing that the plaintiff, having spent $3800, although he could have spent $3200, or indeed, $2400 if he had wanted to take the lesser quality roof that was bid by the party who finally replaced it, that he now has a roof which manifestly is expected to last longer than he could have expected a 25-year old tile roof to last before needing replacement, and under all of these circumstances, I fix the sum, which I think the parties would have adjusted, at $1500, and I’ll render a judgment accordingly in favor of the plaintiff.”

Obviously, the $1,500.00 award is based upon the trial court’s estimation of the differential in the purchase price that would have been precipitated by a mutual prediscovery of the deterioration of the 60 pound felt rather than the actual cost of its replacement.

The Lemonier case, supra, correctly described the general rule for the measuring of damages in a quanti minoris action: they are measured by determining the difference, at the time of the sale, between the value of the thing sold in defective condition and its apparent value as warranted by the seller.

In Lemonier and other cases examined, the vice or defect complained of was faulty construction of some part of a house or other building. Had there been proper construction, deterioration would not have occurred. See, e, g., McEachern v. Plauche Lumber & Construction Co., supra (no footings under piers, inadequate sills, no storm sheeting behind brick veneer, etc.); De Armas v. Gray, 10 La. 575 (1837) (defective construction of brick walls causing them to fall); Glynn v. Delcuze, supra, (improper construction of roof); Rodriguez v. Hudson, supra (faulty installation of plumbing).

The instant case is somewhat different in that the natural deterioration of the 60 pound felt was to be expected, but, as found by the judge, not to the extent which, in fact, existed. Thus, to permit recovery of full replacement cost of a new roof where some deterioration was rightfully to be expected would be an unjust enrichment.

We note that the First Circuit, in Bermes v. Facell, 328 So.2d 722 (La.App.1st Cir., 1976), did not feel bound by the Lemonier measure of damages. There, an old 3W ton air conditioner which did not adequately cool the house purchased by plaintiff was found to constitute a redhibitory vice. Plaintiff replaced the 3V2 ton old air conditioner with a new 4V2 ton unit sufficient to cool the house, and costing $1,930.00. A new 3V2 ton unit would have cost $1,830.00, yet the trial court, evidently considering depreciation, awarded only $1,350.00. This judgment was affirmed by the First Circuit, which remarked:

“The trial court then awarded $1,350.00 reduction after considering the overall evidence and exercising its limited discretion and setting a reduced sale price at the time of the sale. With this consideration we concur.” Id., at 727.

Though this result and that of the trial court decision in the instant case is not within the exact letter of Lemonier and progeny, it is, we believe, within the spirit and, thus, falls within the wide discretion which is the province of the trial judge in setting damages. We make the assumption that the trial court’s “bottom line” figure of $1,500.00 takes into account the fact that the various estimates and, indeed, the actual cost of replacing the felt are subject to some modification and/or reduction in order to accomplish a result that does justice to all parties. Accordingly, the judgment is affirmed, at appellants’ cost.

AFFIRMED.


author: LEMMON, Judge.

text:
    Diane WHITE et al. v. Kim R. NICOSIA.
    No. 8419.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      Andry & Andry, Edwin R. Pillault, Jr., New Orleans, for plaintiff-appellant.
    Friedman, Ortiz & Selenberg, Carl J. Sel-enberg, New Orleans, for defendant-appel-lee.
    Before SAMUEL, LEMMON and BEER, JJ.
   LEMMON, Judge.

This is a suit by Mrs. Diane White to recover damages for the injuries sustained by her son, Austin Givens, in a motorcycle-pedestrian accident. The trial court dismissed the suit on the basis of the seven-year old boy’s contributory negligence. Mrs. White appealed, arguing that a child of that age under our jurisprudence is absolutely incapable of contributory negligence.

The daytime accident occurred when Austin and an older companion attempted to cross North Claiborne Avenue at its intersection with Touro Street. At this point Claiborne was divided by a wide neutral ground, and there were two travel lanes for northbound traffic, separated by a dashed white line, and a third lane for parking. Touro was an undivided cross street.

At the time of the accident traffic was “stacked up” on Claiborne from a traffic light at Elysian Fields (two blocks north of the intersection in question) to a point south of the intersection of Claiborne and Touro. The trial judge specifically accepted the testimony of an independent witness, who was seated in a car waiting in traffic in the right travel lane of Claiborne at a point just south of the Touro intersection. The witness described the events leading up to the accident as follows: Traffic was stopped in both northbound travel lanes, and cars were parked to his right in the parking lane. Just ahead of him in the right travel lane was a large tractor-trailer unit, which blocked part of the intersection as well as the pedestrian crosswalk on the north side of the intersection. The two children began crossing Claiborne in the crosswalk, walked between stopped cars in the left lane, and then had to leave the crosswalk and proceed north 10 to 15 feet in order to walk in front of the tractor-trailer unit. At the same time two motorcycles passed on his right between him and the cars parked in the parking lane and proceeded to pass the tractor-trailer unit on the right. (There also were cars parked in the parking lane ahead of the tractor-trailer unit). As the first motorcycle reached the front of the tractor-trailer unit, one boy came out from in front of the truck, and the collision occurred.

The following sketch by the witness shows the paths of the pedestrian and the motorcycle:

The record leaves no doubt that defendant was attempting to maneuver his motorcycle around vehicles stopped in the travel lanes by moving between stopped and parked vehicles and by swinging in and out of open spaces in the parking lane. Such conduct was violative of any standard of reasonable care and of city and state traffic regulations. Defendant’s substandard conduct was a legal cause of the accident.

As to Austin’s contributory negligence, we disagree with plaintiff’s assertion of an absolute jurisprudential rule that a seven-year old child is incapable of contributory negligence. A more accurate statement is that no Louisiana court has ever found a seven-year old child to be contributorily negligent.

Generally defined, contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, 276 So.2d 286 (La.1973). The judicial determination of negligence or contributory negligence is ultimately based on reasonableness, and the inquiry involves a comparison of the conduct under consideration with the conduct required by a fictitious objective standard.

Historically, courts have recognized that conduct of children should not be judged by the same standard used for adults. An absolute rule setting minimum (or maximum) ages for being capable of negligence has largely been discarded, however, because it is illogical that a child, such as the one in this case whose age is seven years, eleven months and thirteen days, cannot be contributorily negligent under any circumstances, but could be if the accident had occurred 17 days later. The more prudent method for determining negligence is to inquire in each case whether the child’s particular conduct fell below the standard reasonably expected of a child of his age, intelligence and experience under the particular circumstances presented to him. Brantley v. Brown, 277 So.2d 141 (La.1973); Plauche v. Consolidated Cos., 235 La. 692, 105 So.2d 269 (1958); Restatement, Second, Torts § 283A (1965); Prosser, supra; Harper & James, Law of Torts, § 16.8 (1974); 77 A.L.R.2d 917 (1961).

In the present case the inquiry as to contributory negligence is whether Austin’s failure under the particular circumstances to look for motorcycles squeezing between stopped traffic and parked cars and swinging in and out of open spaces in the parking lane in order to pass stopped vehicles in the right lane of traffic was conduct which fell below that reasonably expected of a normal child almost eight years old. We hold that it was not unreasonable for a normal child of this age to fail to anticipate the possibility that a motorcycle operator would maneuver his vehicle in such a reckless and careless manner in an area where he had no right to be and in disregard of the rights and expectations of pedestrians and other motorists.

In the November 1, 1974 accident Austin sustained a contusion and hematoma of the knee, contusion of the shoulder, and abrasions of the lip, shoulder, back, chest and elbow. He was treated with diathermy and medication, but apparently missed no school. Headaches developed during the course of treatment, but by December 9 symptoms from all injuries were improved to the extent that he was discharged from treatment. At that time the doctor opined that the residual pain in the knee would subside in four to six weeks. Medical expenses amounted to $187.00.

On this record we set the award of general damages at $1,500.00.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that there be judgment in favor of Diane White, individually and as natural tutrix of her minor son, Austin Givens, in the amount of $1,687.00, plus legal interest from the date of judicial demand and all costs in both courts.

REVERSED AND RENDERED

      . The point is stated in Prosser, Law of Torts, § 32 (4th ed. 1971):
      “The great majority of the courts have rejected any such fixed and arbitrary rules of deli-mination, and have held that children well under the age of seven can be capable of some negligent conduct. Undoubtedly there is an irreducible minimum, probably somewhere in the neighborhood of four years of age, but it ought not to be fixed by rules laid down in advance without regard to the particular case. As the age decreases, there are simply fewer possibilities of negligence, until finally, at some indeterminate point, there are none at all. There is even more reason to say that there is no arbitrary maximum age, beyond which a minor is to be held to the same standard as an adult.”

      . Neither side called the child to testify, either on negligence or contributory negligence. Accordingly, we must assume the child was one of normal intelligence and experience for his age.


author: GULOTTA, Judge.

text:
    James W. BOSTICK, Jr. v. Clarence P. FORET.
    No. 8423.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.
    Writ Refused Dec. 9, 1977.
    Edwards, Porteous & Lee, Marion F. Edwards, Gretna, for plaintiff-appellee.
    McClendon & Denkman, Metairie, for defendant-appellant.
    Richard T. McBride, New Orleans for in-tervenor-appellant, in pro. per.

      Before REDMANN, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Defendant appeals from a judgment declaring plaintiff to be the owner of certain batture property on the west bank of the Mississippi River in Jefferson Parish. We affirm.

Plaintiffs possessory action in which he seeks recognition of his right to undisturbed possession of the land in dispute has been converted into a petitory action by defendant’s answer and reconventional demand seeking recognition of defendant’s ownership of the property and damages occasioned by plaintiff’s possession. Defendant’s predecessor in title intervenes and seeks dismissal of plaintiff’s suit.

In written reasons for judgment, recognizing plaintiff as owner of the disputed property and dismissing defendant’s recon-ventional demand, the trial judge concluded that plaintiff “has clearly acquired title by virtue of 30 years’ possession”. Citing Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974), he further stated that defendant had failed to prove that he had acquired title “against the world without regard to title of adverse claimant”.

The dispute centers around batture property located between the river and the levee in front of lots fronting on the river road in Jefferson Parish.

In a cash sale dated November 8, 1917, Manuel J. DeBlanc conveyed the road frontage lots, together with two additional lots immediately to the rear, to J. T. Prowell.

On September 8, 1933, Prowell transferred the four lots to David Investment Company. The property description in the conveyance is virtually identical to that in the 1917 sale except that the words “batture and batture rights” are added.

On December 21,1936, David Investment sold the four lots to James W. Bostick, Sr., plaintiff’s father. The act of sale describes the property transferred as “portions of Farm Lots 1, 2, 24 and 25” and makes reference to a Louisiana Meadows Company map attached to the 1917 act. The property is further delineated by reference to “a blueprint of survey by Alvin E. Hotard” attached to the act of sale. No mention is made, however, of “batture and batture rights”. Nevertheless, the act contains an acquisition clause stating that the property conveyed is “the same property acquired by vendor by purchase from J. T. Prowell” and identifying the 1933 act by notary, date and number of registry. (The 1933 act includes “batture and batture rights”.)

On September 14,1944, plaintiff acquired lots 1 and 25 from his father. On August 19, 1952, plaintiff acquired lots 2 and 24 by cash sale from his mother, the two lots having been previously sold to her by Bos-tick, Sr., following their divorce.

Defendant bases his title on a purchase of the batture from David Investment Company in liquidation on December 19, 1974. According to defendant, David had acquired the lots and the then-existing batture by purchase from Prowell in the 1933 sale but had not transferred the batture in the 1936 sale to Bostick, Sr. Intervenor McBride, liquidator of David Investment and warrantor of defendant’s title, takes the same position as Foret.

On appeal, in addition to reasserting his claim to ownership of the batture, defendant raises procedural and substantive arguments in seeking a reversal of the trial court’s judgment. Defendant and interve-nor contend that when the trial judge concluded defendant had failed to establish his title, the judge should have dismissed defendant’s petitory demand as a “nonsuit” and should not have considered plaintiff’s claim to ownership. In addition to defendant’s claim that title to the batture was not transferred to Bostick, Sr., in the 1936 sale, Foret and intervenor contend plaintiff failed to prove either 10 or 30 years’ acquisitive prescription.

In connection with acquisitive prescription, plaintiff asserts a valid chain of title dating back to the 1933 sale from Prowell to David Investment in which the four lots are conveyed, together with the batture and batture rights. Because the 1936 sale from David Investment to Bostick, Sr., states that the property conveyed is the same as that acquired by David from Prowell, plaintiff argues that his father acquired all the property, i. e., the four lots and the batture.

At the outset, we find no merit to defendant and intervenor’s procedural argument that the trial judge, having concluded that defendant had failed to prove a valid title, should have dismissed the action as a “nonsuit” without considering plaintiff’s ownership. Though we do not quarrel with the settled jurisprudential rule that the title of a defendant in a petitory action is not at issue until plaintiff has proved valid title in himself, we do not feel that this principle necessitates a judgment of “nonsuit” in the instant case. Of particular significance in our case is the fact that plaintiff initiated litigation by filing a pos-sessory action in which he alleged possession of the batture as owner and prayed for judgment recognizing his undisturbed possession. The suit was converted to a petito-ry action by defendant’s answer and recon-ventional demand asserting title in himself. Defendant’s argument would have merit had he initiated the litigation by filing a petitory action, but under the circumstances, a dismissal of the action as a “nonsuit” would leave unresolved the initial question, i. e., whether plaintiff is entitled to a judgment recognizing his right to undisturbed possession of the batture. We therefore conclude that the trial judge, upon dismissing defendant’s reconventional demand asserting title, properly heard evidence on the main possessory demand.

Turning now to plaintiff’s contention that he has acquired ownership of the bat-ture by title, we note that a discrepancy exists in the description of the property conveyed. The first part of the description in the 1936 act of sale sets forth the dimensions of the four lots and makes reference to the maps by the Louisiana Meadows Company and Hotard without mentioning the batture; however, the last part of the description of the property, the acquisition clause, states that the property conveyed is the same as that acquired by David Investment from Prowell in 1933. The 1933 act conveys the farm lots and the batture and batture rights. Furthermore, the mortgage and conveyance certificates attached to the 1936 act of sale include in the description the batture and batture rights. This discrepancy creates uncertainty and ambiguity as to whether the batture was in fact included in the 1936 sale of property from David Investment to Bostick, Sr.

Though we are mindful of the settled doctrine that parol evidence cannot be introduced to vary the terms of a written act, when ambiguity exists in the act, resort to extrinsic evidence is permissible to clarify the ambiguity by showing the intention of the parties. Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367 (1953); Snow-White Roofs, Inc. v. Boucher, 182 So.2d 846 (La.App. 4th Cir. 1966). Parol evidence is admissible to establish identification of property conveyed where the description in the act of sale is ambiguous, so long as there is a sufficient body in the description to leave title substantially resting on writing and not essentially on parol. Lemoine v. Lacour, 213 La. 109, 34 So.2d 392 (1948); Sexton v. Waggoner, 66 So.2d 634 (La.App. 2d Cir. 1953). Under the circumstances, we are in agreement with the trial court’s determination to hear parol evidence for the purpose of clarifying the ambiguity.

In written reasons, the trial judge stated:

“The Court, after considering the testimony and the documents in question, and the undisputed fact that the Bosticks have paid taxes on the batture and acted as owners through the years while David Investment Company made absolutely no attempt of any kind to show ownership, is of the firm opinion that David Investment Company meant to convey title to the batture to Mr. Bostick, Sr. in 1936, but the batture description was inadvertently omitted from the act of sale by the Notary.”

The record amply supports this conclusion.

Mrs. Jeannette Friley, plaintiff’s mother, testified that the property was inspected with a representative of David Investment when the Bosticks made an offer to purchase it. She stated that the representative had told them at that time that the batture would belong to them. Furthermore, the Bosticks’ belief that they had purchased the batture, together with the farm lots, is clearly demonstrated by their notorious and open possession of it.

There is ample evidence in the record to indicate that Bostick, Sr., from as early as 1933, fenced the batture area, raised crops, grazed livestock, installed a water pump and tank, built a shed, allowed fishermen to construct sheds and conducted haymaking operations on the batture property, possess-it as owner. During his minority, plaintiff aided his father in these operations. Following plaintiff’s discharge from active service on October 27, 1945,.subsequent to his purchase of lot 1, plaintiff himself possessed the batture area and continued the haymaking operations, granted permission to a fisherman to construct a camp on the batture, allowed a union strike headquarters to be built there and leased the mineral and mooring rights to the property, acting in these particulars as owner of the batture property from October 27, 1945 to the present. Evidence in the record also indicates that the Bosticks paid property taxes on the four lots and the batture since 1936. ing

Furthermore, as noted by the trial judge, the mortgage and conveyance certificates attached to the 1936 act of sale contain property descriptions which include the bat-ture and batture rights. Though the description in the act of sale itself does not include the disputed property, the attached mortgage and conveyance certificates are significant in that they indicate that the parties to the act of sale intended that the batture property be conveyed along with the lots.

Particularly significant, as further observed by the trial judge, is the fact that David Investment, subsequent to the 1936 sale, did not, until 1974, make any use of the batture property or interfere in any way with the Bosticks’ notorious possession of it. Had David Investment not intended to convey the batture property in the 1936 sale, presumably it would have made some use of this valuable batture property through the years, such as leasing it in the manner that plaintiff’s family did. As the court found as a matter of fact, it was not until defendant Foret researched the public records, discovered the batture omission in the 1936 sale, informed the liquidator of David Investment and offered to purchase the batture property from him that David Investment acted as owner of the batture. It is also significant that David Investment has not paid property taxes on the batture since the 1936 sale. Reading the 1933 and 1936 acts of sale in pari materia, in light of this extrinsic evidence, we conclude that the 1936 sale conveyed the four farm lots and the batture, as intended by the parties. Accordingly, plaintiff's father acquired the disputed property by legal title and plaintiff himself acquired it in the subsequent sales. It is undisputed that plaintiffs parents intended to convey the lots and the batture to him.

We distinguish our case from Maginnis Land & Improvement Co. v. Marcello, supra, relied on by defendant. In Maginnis, the property was described in the deed as fronting on Bayou Lafourche, but the plat referred to in the deed clearly showed that the property fronted on a public road. The court properly held that the plat prevailed and that the deed did not convey the bat-ture property. In our case, there is no such discrepancy. The Hotard survey attached to the act of sale (1936 sale from David Investment to Bostick, Sr.) is merely a further delineation of the Louisiana Meadows Company map and does nothing more than give the dimensions of the farm lots conveyed. If a discrepancy had existed between the written description of the farm lots and the description of the lots as set forth in the Hotard survey, the rule of Maginnis would apply. We find Maginnis inapplicable to the facts in our case.

Under the circumstances, we conclude Bostick, Sr., acquired ownership of the bat-ture property by transfer from David Investment Company in the 1986 act of sale and plaintiff is entitled to recognition of his right to undisturbed ownership and possession. Accordingly, the judgment is affirmed.

AFFIRMED.

      . “Farm Lots Numbers One (1), Two (2), Twenty four (24), Twenty five (25), being a portion of the sub-division of Section four (4), Township Thirteen (13), South Range Twenty two (22) East, Parish of Jefferson, State of Louisiana, as shown by the Louisiana Meadow Company’s map, now on file with the Clerk of Court in and for the Parish of Jefferson, State of Louisiana, containing Twenty 64/100 (20.64) Acres, all more or less, together will all the buildings and improvements thereon, rights, ways, privileges and appurtenances thereunto belonging or in any wise appertaining.”

      . In this argument, defendant places reliance on Maginnis Land & Improvement Co. v. Marcello, 168 La. 997, 123 So. 653 (1929).

      . See Montgomery v. Breaux, 297 So.2d 185 (La.1974); Cook v. Martin, 188 La. 1063, 178 So. 881 (1938); Schutten v. Orleans Parish Levee District, 320 So.2d 605 (La.App. 4th Cir. 1975), writ denied, 323 So.2d 806 (La.1976).

      . The acquisition clause reads as follows:
      “Being the same property acquired by David Investment Inc., from Jones T. Prowell by act before Richard T. McBride, No. Public, dated September 8, 1933, COB 118, Folio 222, Records of Jefferson Parish, Louisiana.”
      The clause does not state “part of the same property acquired” but “the same property acquired”.

      . LSA-C.C. art. 2276 provides as follows:
      Art. 2276. Parol evidence relative to written irfstruments
      “Art. 2276. Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

      . Lawler v. Bradford, 113 La. 415, 37 So. 12 (1904); Tennent v. Caffery, 170 La. 680, 129 So. 128 (1930); Emerson v. Cotton, 209 La. 1003, 26 So.2d 16 (1946).


text:
    SOUTHERN SAVINGS ASSOCIATION v. Patsy WHIDDON and the Administrator of the Louisiana Department of Employment Security.
    No. 8445.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.

      Gauche, Wegener & Oster, Edmund T. Wegener, Jr., New Orleans, for plaintiff-appellant.
    Marion Weimer, James A. Piper, James A. McGraw, Baton Rouge, for defendant-appellee, Administrator, Office of Employment Security, Louisiana Dept, of Labor. Patsy Whiddon, in pro per.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

We affirm the judgment of the district court upholding, on judicial review, the decision of the Louisiana Board of Review of the Department of Employment Security removing claimant Patsy Whiddon’s prior disqualification for employment security benefits.

Review of the transcript of the record before the appeals referee leads to a conclusion that sufficient evidence exists to support the Board of Review’s factual findings that the employer denied claimant’s request for permission to leave work during the approach of an impending hurricane in order to protect property she owned in Mississippi and return safely to New Orleans before the storm; that other employees had left previously for their personal safety; and that shortly after the claimant had left without permission, her place of employment was closed due to the approaching storm. (The employee left at approximately 1:30 p. m. The office closed at approximately 2:00 p. m.)

We conclude, as did the Board of Review and the trial judge, that the employee’s action did not constitute “misconduct” under the exigent circumstances and she cannot be disqualified from receiving statutory unemployment benefits. As stated in the opinion of the Board of Review

“. . . the claimant acted as any normal human being would when her property was at stake and she knew that it should be taken care of. Further, she asked permission and was denied. The only alternative she had was to leave without further permission.
“After having read all of the testimony and information in this instant case, the Board finds that other employees were allowed to leave without permission from the President. We find that the claimant’s reasons for leaving were real and not imaginary. We do not find the claimant guilty of misconduct within the meaning of the Act.”

We find no merit to the Association’s claim that if the employee had been permitted to leave, the office would have been unattended. The undisputed testimony is that the Association’s business was “slow” on that day and other people in the office were available to handle customers in the claimant’s absence. The employer’s argument that its refusal to permit the claimant to leave early was not unreasonable because only the protection of her property and not her personal safety was involved is also without merit. It is undisputed also that claimant’s property is located in Bay St. Louis, Mississippi, and that she was concerned with traveling to Mississippi and returning to New Orleans before the approaching storm struck the Mississippi Gulf Coast and the New Orleans area. We are in agreement with the Board of Review’s finding that the claimant’s fears were “real and not imaginary”.

Accordingly, the judgment of the trial court maintaining the result reached by the Board of Review is affirmed.

AFFIRMED.

      . An appeals referee had concluded that claimant should be denied benefits because she had been discharged from employment for misconduct connected with that employment. The decision of the appeals referee was reversed by the Board of Review.

      . LSA-R.S. 23:1634, in pertinent part, provides: § 1634. Judicial review; procedure
      “* * * In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. * * * ”

      . LSA-R.S. 23:1601, cited by the Board of Review, provides in pertinent part:
      § 1601. Disqualification for benefits
      “An individual shall be disqualified for benefits:
      (1) If the administrator finds that he has left his employment without good cause connected with his employment. * * *
      (2) If the administrator finds that he has been discharged for misconduct connected with his employment. * * *”
      The Board concluded that the claimant, in leaving, under the circumstances had neither quit her job nor committed misconduct in connection with that employment.

      .By stipulation of counsel, the sole issue before us is whether the action of the employee is conduct such as to disqualify her from statutory unemployment benefits.