text:
    Sharon Pfister, wife of/and Joseph B. CATALANOTTO v. Leon J. HEBERT.
    No. 8225.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Guste, Barnett & Shushan, J. Harrison Henderson, III, New Orleans, for plaintiffs-appellees defendants-in-reconvention.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Plaintiffs Sharon and Joseph Catalanatto are seeking damages from defendant Leon J. Hebert resulting from the breach of a contract to build a home at 4620 Gary Mikel Avenue in Metairie, Louisiana. The parties entered into a building contract on April 9, 1973 which provided for a completion date of the house on or before October 1, 1973. Plaintiffs allege that defendant breached the contract because the work on the house was not substantially completed until December 4, 1974 and because the work was not satisfactorily performed in accordance with the plans and specifications.

Defendant reconvened to recover sums due for “extras” provided which were not included in the original contract price. The trial judge awarded plaintiffs $5,815.00 which included contractually stipulated liquidated damages for the delay in completion, rental and moving expenses and other costs incurred as a result of the breach of the contract by defendant. The trial judge did not allow plaintiff to recover for mental anguish or attorney’s fees. The plaintiff in reconvention was awarded $1,743.88 for extras provided which were not included in the original contract price. Defendant Hebert appealed from the judgment but later dismissed his appeal. The plaintiffs answered the appeal asking that the judgment be modified to increase the amount of their award. Our review is limited to the three issues raised by plaintiffs in their answer to the appeal.

Plaintiffs contend' (1) that they are entitled to recover attorney’s fees under clause (7) of the building contract; (2) that they are entitled to recover damages for mental anguish and (3) that the trial court erred in refusing to qualify their witness as an expert contractor thus depriving plaintiff of presenting any evidence on the costs of repair of defects in the house.

Upon a review of the record we find that we must reject plaintiffs’ contentions and affirm the judgment of the trial court.

Paragraph 7 of the contract provides: “During the progress of the work, if the Contractor should become bankrupt, refuse or neglect to supply a sufficiency of material or of workmen, or cause any unreasonable neglect or suspension of work, or fail or refuse to follow the plans and specifications, or fail to comply with any part of this contract, then the Owner shall have the right and power to enter upon and take possession of the premises, and may at once terminate this contract, whereupon all laborers and mechanics and materialmen’s claims against the Contractor shall cease and the Owner may provide materials and workmen sufficient to complete the work, after giving ten (10) days notice, in writing, directed and delivered to the Contractor in person or at his address supplied by him and stated below and to the Association at its address, 233 Carondelet Street. The expense of the notice, and the completing of the various works, together with all costs, charges or attorney’s fees incident to the completion or enforcement of this contract, shall be a charge and lien against the Contractor, and may be deducted from the amount due or to become due him. ...”

Plaintiffs argue that they were compelled to hire an attorney to enforce their rights under the contract and, therefore, are entitled to reasonable attorney’s fees. They rely on the cases of Gross v. Breaux, 144 So.2d 763 (La.App. 4 Cir. 1962) and Popich v. Fidelity and Deposit Co. of Maryland, 258 La. 163, 245 So.2d 394 (1971).

It is well settled that attorney’s fees are recoverable only when provided for by statute or by contract. Hebert v. Mayeur and Company, Inc., 296 So.2d 446 (La. App. 4 Cir. 1974). The language of this particular building contract provides for the assessment of attorney’s fees against the contractor when the contract has not been completed and the owner takes possession of the premises and completes the job. This was the situation in Popich, supra and Gross, supra. Plaintiffs did not take possession of the house before it was substantially completed. Nor did they personally undertake the completion of the job at any time prior to taking possession. Therefore, plaintiffs are not entitled to recover attorney’s fees under the terms of the contract.

We must also reject plaintiffs’ contention that they are entitled to recover damages for mental anguish. The Supreme Court in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (1976) interpreted LSA-C.C. Article 1934(3) to allow recovery of non-pecuniary damages resulting from a breach of contract only where the object of contract is the gratification of some intellectual enjoyment. We do not find that a building contract falls within this category. See also Uhlich v. Medallion Realty, Inc., 334 So.2d 788 (La.App. 4 Cir. 1976).

Lastly, plaintiffs argue that the trial court erred in not accepting Mr. William Collins as an expert in contracting and repairs. Mr. Collins had only built two houses each costing approximately $150,-000.00 and had not built any homes in the $30,000.00 range. He had done repair work on six houses. The trial judge did not feel that he had sufficient experience in the area of construction involving the type of home at issue herein. The determination of who shall testify as an expert is a matter within the sound discretion of the trial judge. Ashley v. Nissan Motor Corp. in U. S. A., 321 So.2d 868 (La.App. 1 Cir. 1975); Hamilton v. Travelers Indemnity Company, 248 So.2d 617 (La.App. 3 Cir. 1971). We find no manifest error on the part of the trial judge in refusing to qualify plaintiffs’ witness as an expert.

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

AFFIRMED.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    DOLPHIN SWIMMING POOL CO., INC. v. Barbara Leveque, wife of/and Ken LEVEQUE, Sr.
    No. 8260.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Fred P. Westenberger, Edward F. Weg-mann, New Orleans, for plaintiff-appellant.
    Thomas J. Toranto, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG and MORTAL, JJ.
   STOULIG, Judge.

Plaintiff, Dolphin Swimming Pool Co., Inc., obtained a judgment of $1,474.20 plus interest and costs, representing the unpaid balance due by defendants, Barbara Le-veque and Ken Leveque, Sr., on a swimming pool construction contract. Defendants were allowed an offset of $856.11. Plaintiff has appealed primarily to have us revise the judgment to award the 25% attorney fees stipulated in the contract and to eliminate the offset allowed defendants.

As background we note plaintiff tendered the pool as complete on October 1,1973 and presented a bill for the unpaid balance of $1,474.20. Defendants did not challenge the amount claimed; however, they asserted the cost to correct defective workmanship and the damages for inconvenience more than offset the balance due plaintiff.

Because defendants have neither appealed nor answered this appeal, we limit our review of the judgment on the affirmative defense and reconventional demand to allowance of these items:

$681.50 for pool repairs;
$129.61 for a filter motor; and
$ 45.00 for chlorine.

Plaintiff contends the evidence adduced is insufficient to support a judgment in favor of defendants.

Defendants testified that repairs were required because plaintiff’s workmanship in constructing the pool was defective. At the time of the trial the remedial work had not been performed. Defendants introduced an unsigned estimate for pool repairs on the stationery of A. C. Cross, Inc., however, the man who made the estimate was not called as a witness. Counsel for plaintiff properly objected to its admissibility as hearsay, nonetheless the trial judge allowed as an offset against plaintiff’s claim the $681.50 specified in the estimate. This ruling is unsustainable under Ordonez v. Maryland Casualty Company, 312 So.2d 875 (La. App. 4th Cir. 1975).

Offset is an affirmative defense which must be supported by competent evidence. C.C.P. art. 1005. The myriads of complaints advanced by both defendants coupled with inadmissible evidence does not establish the alleged need for repairs covered by the estimate by a preponderance of the evidence. Therefore we disallow this credit.

It was proper to allow defendants a credit of $45 for chlorine and $129.61 for filter motor replacement. The contract required plaintiff to furnish a ease of chlorine and it did not dispute defendants’ assertions of nondelivery. It is true defendant Ken Leveque approximated his cost at $45 or $50; plaintiff, who certainly knows whether this is reasonable, did not question this amount. The trial judge’s awarding the lower of the two figures was not error.

Defendants testified to replace the defective filter motor they paid Warren English Pool Service $129.61, and in support thereof placed in evidence a receipted invoice for this amount. They need not prove payment, only that they incurred this debt because of plaintiff’s poor workmanship. Oral testimony is sufficient to establish defendants entered into a replacement contract for $129.61 (C.C. art. 2277). We will not reverse the trial court’s apparent acceptance of this testimony.

Finally, plaintiff correctly points out it is entitled to 25% attorney fees under the contract and the judgment will be amended to allow this item.

For the reasons assigned the judgment is amended and recast as follows:

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Dolphin Swimming Pool Co., Inc., and against defendants, Barbara Leveque, wife of/and Ken Leveque, Sr., in the full sum of $1,474.20, less a credit of $174.61, plus 8% interest from October 1, 1973 until paid, together with 25% attorney fees on the net principal due plaintiff. Defendants are to pay all costs of this litigation and that portion of the trial court judgment awarding defendants costs is reversed.

In all other respects the judgment appealed from is affirmed.

AMENDED IN PART; REVERSED IN PART; AFFIRMED IN PART.


author: REDMANN, Judge.

text:
    Beverly S. ALEXANDER v. Roger H. ALEXANDER, Jr.
    No. 8290.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Floyd J. Reed, Reed, Reed & D’Antonio, Metairie, for plaintiff-appellant.
    John H. Brooks, Laborde & Brooks, New Orleans, for defendant-appellee.
    Before REDMANN, STOULIG and MORIAL, JJ.
   REDMANN, Judge.

Just as a prior civil proceeding for alimony and child support in the district court does not pre-empt the juvenile court’s criminal non-support jurisdiction, State v. Galjour, 1949, 215 La. 553, 41 So.2d 215, we hold (ás we indicated obiter in Marchese v. Schulte, La.App. 4 Cir. 1970, 235 So.2d 605) that a prior criminal non-support proceeding in juvenile court does not pre-empt the district court’s civil jurisdiction over alimony and child support.

The trial court’s contrary ruling is reversed.


author: PER CURIAM.

text:
    SOUTH LOUISIANA CONTRACTORS, INC. v. Angelo MARSALONE, d/b/a Quad Minerals.
    Nos. 8452 and 8453.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Duncan M. Smith, Jr., Lafayette, for plaintiff-appellee.
    James J. Morrison, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   PER CURIAM.

No proof connects defendant with the alleged account.

Set aside; remanded. Costs of this appeal to be divided equally; other costs to await final disposition.


author: MORIAL, Judge.

text:
    Mrs. Myrl DRAGON v. ORLEANS PARISH SCHOOL BOARD.
    No. 8549.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Jesse S. Gullot, Emile W. Schneider, New Orleans, for plaintiff-appellee.
    Polack, Rosenberg, Rittenberg & Endom, Franklin V. Endom, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Orleans Parish School Board (OPSB) appeals from a judgment awarding plaintiff Myrl Dragon workmen’s compensation benefits of $65.00 per week for 500 weeks for total and permanent disability.

Plaintiff was employed as a subcustodian for the OPSB. Plaintiff alleged that she suffered a ruptured intervertebral disc as the result of a work-related accident. On November 2, 1972, plaintiff slipped on water on the school cafeteria floor and allegedly sustained injuries to her right leg, hip and back. Plaintiff filed an accident report and was sent to Dr. Axelrod by the OPSB. Plaintiff was treated for a sprain of her right ankle and was released after three weeks. Early in 1973 after a snowfall in the New Orleans area, plaintiff slipped and twisted her back while clearing snow off a ramp at the school. In March 1973 plaintiff again hurt her back and arm in attempting to close a school window. Mr. Earl Ryan, Sr., plaintiff’s supervisor witnessed the two latter incidents and was aware of the fact that plaintiff experienced pain in her back as a result of the accidents. However, an accident report was not made on either occurrence. Plaintiff continually suffered from pain in her lower back after these incidents and sought medical care from several physicians and a chiropractor. Several of the physicians who examined plaintiff were of the opinion that she had a herniated disc. Plaintiff resigned from her job on October 8, 1973 claiming that the pain in her back and leg prevented her from working any longer. Plaintiff was referred to Touro Infirmary. She was operated on for her back problem in May 1974. At the time of trial plaintiff had not yet been discharged by her doctor. Plaintiff wears a brace and claims she can no longer stoop or sweep.

Mrs. Dragon testified that her back problems began with the November 2, 1972 cafeteria fall. She stated that her pain increased following her fall on the ramp and the window closing incident. She testified that she complained to her custodian and co-employees. She said she continued to work because she needed the work to support herself. Plaintiff stated that after the operation she was unable to work because she could no longer sweep or stoop and that custodial work was the type only type of work she could do.

Mr. Earl Ryan, the head custodian at the school, testified that he was present during the ramp and window incident although he was not sure of the dates of the incidents. He explained that an accident report had not been made because plaintiff believed that she had merely aggravated the back condition sustained in the November cafeteria fall. He believed that plaintiff had only injured her hand in attempting to close the window. He did recall plaintiff complaining about her back after slipping on the ramp. He stated that plaintiff was a good worker and insisted on working even though she was in pain.

Plaintiff saw four physicians and a chiropractor during the period of November 1972 through January 1974. Dr. Charles Peterson had treated plaintiff for a hypertension condition in November and December 1971. In April 1972 he treated plaintiff for tenderness of the right hip and thigh which he diagnosed as an arthritic condition. He stated that plaintiff did not complain of any back trouble during that period. However, he testified that when she returned in February 1973 she complained of low back pain but was not told of any falls experienced by plaintiff since her previous visit. He felt her pain was caused by arthritis. He saw plaintiff four times between May and September. He noted that plaintiff’s pain continued and that she had developed muscle spasms in her back by September. He did not believe that she exhibited the symptoms of a herniated disc syndrome. He was of the opinion that if plaintiff did fall she probably aggravated a pre-existing arthritic condition.

Dr. A. J. Axelrod, the school board physician testified that he treated plaintiff for a sprained ankle on November 3, 1972. She was discharged by his associate on November 16,1973. He did not take any X-rays of her back nor did he treat her for a back problem.

Dr. Marilyn Panger, a chiropractor saw plaintiff twenty-one times between September 22 and October 22,1973. Her history on Mrs. Dragon showed that she had experienced falls in the yard and in the cafeteria. Dr. Panger took X-rays and found plaintiff to be suffering from muscle spasms in her lower back. She felt plaintiff was in need of orthopedic care. She wrote plaintiff a note stating that she was unable to continue her duties at the school.

Dr. George Battalora, an orthopedic surgeon, saw plaintiff on November 2, 1973. His examination of plaintiff’s back revealed a low lumbar disc syndrome and a L4 disc herniation. He advised a myelogram and felt plaintiff was not able to work.

Dr. Russel Grunsten first examined plaintiff on March 19, 1973. Plaintiff complained of low back discomfort. He stated in his history on plaintiff that she had told him that her pain began when she was cleaning snow off of her car windshield. Plaintiff saw the doctor several times in March and April. She received injections to relieve the pain in her back. On a May 7th visit, Dr. Grunsten found plaintiff was exhibiting symptoms of disc degeneration. Plaintiff returned in June while on vacation from work and was advised to maintain a bed resting status. Plaintiff returned to see Dr. Grunsten on October 23, 1973 and reported a flare up of pain in her right buttocks and lower extremity. The doctor noted evidence of disc herniation and referred plaintiff to Touro Infirmary. Plaintiff returned to see him on January 22,1974 and made the same medical findings. Plaintiff asked him at that time whether or not her November 1972 cafeteria fall could be related to her back condition. The doctor stated that he could not correlate the symptoms with a specific injury that occurred that long ago.

Defendant contends that plaintiff failed to meet her burden of proving that she sustained a work-related injury which caused the disc herniation in her back. Defendant argues that a non-work-related incident may have caused her injury.

Defendant also argues that the trial judge improperly set the compensation rate as it was scheduled at the time plaintiff left her employment rather than the rate as scheduled at the time of the occurrence of the accidents.

Defendant’s final argument is that the trial court erred in taxing costs and expert fees other than the stenographer’s costs in violation of LSA-R.S. 13:4521.

Plaintiff argues that Mrs. Dragon’s testimony which was corroborated by Mr. Ryan, the supervisor, established the occurrence of the three work-related incidents which resulted in the injury to her back. Plaintiff points out that the trier of fact accepted plaintiff’s proof and that the record does not disclose a causative event off the job. Plaintiff contends that it was within the discretion of the trial judge to set the rate of compensation as it was statutorily scheduled at the time she left the job. Plaintiff also argues that the school board should be responsible for the costs and attorney’s fees because they refused to pay her compensation to which she was due.

We recognize that plaintiff has the burden of showing by a preponderance of the evidence, just as in any other case, that the accident and disability were work-connected. Guillory v. New Amsterdam Casualty Company, 244 La. 225, 152 So.2d 1 (1963). However, the testimony of an employee alone may establish a work-related disabling accident where such testimony is corroborated by other credible evidence. Wright v. Red Ball Motor Freight Inc., 315 So.2d 344 (La.App. 1 Cir. 1975). We find that Mrs. Dragon’s testimony as corroborated by Mr. Ryan established the occurrence of the three work-related incidents. The more troublesome issue is whether or not plaintiff suffered a herniated disc as a result of these accidents. We admit that the medical testimony as to the cause of plaintiff’s injury is sparse and conflicting. However, the record does reflect that plaintiff was not treated for a back ailment prior to her fall in November 1972. We find that there is sufficient evidence in the record to support the conclusion of the trial judge that the injury suffered by plaintiff was work-related. It is well established that questions of a work-related accident and causal connection between the accident and disability are factual in nature and will not be set aside in the absence of manifest error. Todero v. Great Atlantic and Pacific Tea Company, 343 So.2d 388 (La.App. 4 Cir. 1977).

We do find that the trial court erred in setting the rate of compensation as it was set at the time plaintiff left the job. Plaintiff is entitled to collect compensation at the rate as it was statutorily fixed at the time the accidents occurred. Pender v. Southern Farm Bureau Casualty Insurance Company, 280 So.2d 599 (La.App. 3 Cir. 1973).

With the exception of stenographers’ costs for taking testimony, plaintiff is not entitled to collect expert fees or court costs from the defendant school board. See LSA-R.S. 13:4521; Jenkins v. Orleans Parish School Board, 310 So.2d 831 (1975).

For the foregoing reasons, the judgment of the district court is amended to reduce the rate of compensation to $49.00 per week for 500 weeks and to exclude the award of expert fees and costs (other than stenographers’ costs for taking testimony) against defendant school board, and, as amended, the judgment of the district court is affirmed.

AMENDED AND AFFIRMED.


author: SAMUEL, Judge.

text:
    Robert FRAME v. Joseph YENNI, Mayor, City of Kenner.
    No. 8561.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      DeMartini & LeBlanc, Edward J. DeMar-tini, Kenner, for plaintiff-appellee.
    Michael S. Pawer, Matthew H. Greenb-aum, New Orleans, for third party-appellant, Thomas J. Tinnerella.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against the defendant, Joseph S. Yenni, as Mayor of the City of Kenner, seeking a writ of mandamus ordering defendant to appoint as fire chief one of two persons certified by the Kenner Municipal Fire & Police Civil Service Board as having passed an examination for that office on August 5, 1976. Following trial, there was judgment against the defendant ordering him to appoint a fire chief from the list of eligibles furnished him by the Civil Service Board.

Appellant, Thomas J. Tinnerella, was not a party to the mandamus proceedings in the trial court, but he nevertheless appealed the judgment as an interested party. Plaintiff has filed a motion to dismiss this appeal on the basis of appellant’s alleged lack of interest in the proceedings. We pretermit a consideration of the motion to dismiss because of the conclusion we have reached.

Appellant has worked for the Kenner fire department for some 27 years. He has served as Kenner’s acting fire chief since July, 1971. On August 5, 1976 the Kenner Municipal Fire & Police Civil Service Board gave an examination to fill the position on a permanent basis. Three persons took the examination. Plaintiff and B. J. Mum-phrey received passing grades, but appellant failed to do so. The defendant Mayor refused to appoint as fire chief either of the two persons certified by the Board as having passing grades on the test, and this mandamus proceeding resulted.

Article 3863, Louisiana Code of Civil Procedure, provides a writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. The rights and duties of the plaintiff, defendant and appellant in this suit are controlled by the Municipal Fire & Police Civil Service Law. This statute provides vacancies in positions in the classified service shall be filled by demotion, transfer, reinstatement, promotional appointment, competitive appointment, reemployment, and temporary appointment.

The law provides two forms of temporary appointments. An emergency appointment may be made at the time of a local emergency of a temporary and special nature to satisfy the needs of the civil service system. Emergency appointments can be effective for no more than 10 days. A provisional appointment of a person deemed qualified by the appointing authority may be made to fill a vacancy in a position for which the civil service board is unable to certify the names of persons eligible for regular and permanent appointment. Provisional appointment shall not continue for more than 3 months. Such appointment may be renewed for an additional 3 months with the authorization of the Board when it is impracticable or impossible to establish a list of persons eligible for certification and appointment. Therefore, no provisional appointment may last more than 6 months.

In the instant case the appointing authority sought to fill a vacancy of fire chief by competitive appointment. Revised Statute 33:2494 A provides that whenever the appointing authority proposes to fill a vacancy by competitive appointment he shall request the Board to certify names of persons eligible for appointment to the vacant position. The procedure for making the appointment is provided in R.S. 33:2494 D, which reads in pertinent part as follows:

“. . . Upon the appointing authority’s request for the certification of eligible persons from which he may fill a vacancy, and if the competitive list is the appropriate list from which the names of eligible persons shall be certified, the board shall certify the names of the persons upon that list, in the order in which they appear thereon, for the class in which the vacancy is to be filled. The appointing authority shall select and appoint to the first vacancy to be filled, any one of the persons so certified to him for the vacancy. If any one or more persons so certified should refuse the appointment, the appointing authority shall then select and appoint any one of the remaining persons certified by the board. This procedure shall be followed until the position has been filled by appointment of one of the persons certified from the list and willing to accept the appointment, or until each person whose name appears upon the list has in this manner been certified for the vacancy.” LSA-R.S. 33:2494 D. (Emphasis ours).

This provision shows it is the mandatory duty of the appointing authority to make appointments from the list of eligi-bles certified to him by the Board. Any other interpretation would defeat the purposes for which the various civil service statutes have been enacted.

Mr. Tinnerella argues a writ of mandamus is inappropriate in this case because the appointment of a fire chief involves the exercise of discretion on the part of the appointing authority and is not the performance of a ministerial duty required by law. We do not agree with this argument. In Lemoine v. Ducote, the Louisiana Supreme Court defined the term “ministerial act” as follows:

“A ministerial act may be defined to be one which a person performs in a given statement of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of his own judgment upon the propriety of the acts being done.”

Moreover, in Groves v. Board of Trustees of Teach. Retire. Sys., the court stated the settled rule that a mandatory duty of a public official does not become less mandatory or ministerial simply because the statute creating the duty may require to some extent construction of statutory language.

The duty imposed upon the Mayor of Kenner in the present case involves even less discretion. By law he is mandated to fill a vacancy from a list of eligibles certified to him by the Board, and the only discretion given him is to choose from among the persons on this list. The quoted language of R.S. 33:2494 D clearly establishes the appointing authority has the mandatory duty to make his appointment from the list certified to him. Insofar as the action of mandamus is concerned, the right to choose a name from among two or more persons certified as eligible for appointment does not make the appointing authority’s duty to appoint any less mandatory or ministerial.

The temporary appointment of Mr. Tin-nerella as acting fire chief for the City of Kenner has expired long ago. It is now the mandatory duty of the Mayor, as appointing authority, to select and appoint a police chief from the list of eligible persons certified to him by the Civil Service Board.

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

AFFIRMED.

      .See Article 2086, Louisiana Code of Civil Procedure.

      .R.S. 33:2471, et seq.

      .R.S. 33:2487.

      . R.S. 33:2496 A(1).

      . 45 La.Ann. 857, 12 So. 939.

      .La.App., 324. So.2d 587.


text:
    Ernest Joseph LAURENT v. Dorothy Estelle LAURENT.
    No. 8160.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Porteous, Toledano, Hainkel & Johnson, Henry Leon Sarpy, New Orleans, for plaintiff-appellant.
    Daniel E. Becnel, Jr., Robert R. Fau-cheux, Jr., Reserve, for defendant-appellee.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit for a separation from bed and board from his wife on the ground of her alleged abandonment. Defendant answered, denying plaintiff’s allegations, and reconvened for a separation on the ground of cruel treatment.

After a trial on the merits, judgment was rendered in favor of the defendant wife, awarding her a separation from bed and board. Plaintiff has appealed.

The record reveals the parties had been married 21 years and have two major children. In October, 1975 the wife left the matrimonial domicile. The week prior thereto, the parties had an argument when the wife wanted to go to a bar called “Deedie’s” to attend a political meeting with two other lady friends, but her husband wanted her to go to a football game with him. He had been drinking and told her she could not go to the political rally unless she went to the football game first. When she refused to do so he said he would kill her and several deputies. He took a loaded gun and put it in his truck. Their daughter, who was present in the house, became so upset that the mother did not go to the political rally but followed the daughter to her home where she stayed that evening. The daughter took the loaded gun out of her father’s truck and to her own home so no one would get hurt. The wife, claiming she was afraid for her life, left the matrimonial domicile the following week. The wife’s testimony was corroborated by the married daughter.

In this court appellant contends: (1) the judgment of separation should have been granted in his favor; and, alternatively, (2) a finding of mutual fault should have been made. We do not agree with either contention.

Relative to appellant’s first contention, LSA-C.C. Art. 143 authorizes separation on the ground of abandonment where one spouse absents himself or herself from the matrimonial domicile without lawful cause and constantly refuses to return to live with the other. Abandonment, as grounds for judicial separation as provided in Article 143, may be established as any other fact in a civil suit. However, abandonment by one spouse does not support a suit by the other for legal separation where the abandonment was for lawful cause such as cruel or outrageous conduct on the part of the spouse bringing suit.

In this case, while plaintiff and his two witnesses stated they knew of no reason why defendant had left the matrimonial domicile, it is clear from the testimony of the defendant and her daughter, which testimony was accepted by the trial judge, that the threat to her life and the placing of a loaded gun in the vehicle in which defendant was going to travel constitutes justifiable reason for her to leave. Thus, we cannot grant plaintiff a separation on the grounds of abandonment.

Relative to the second contention, our established jurisprudence was that in an action for judicial separation or divorce mutual, equal fault bars relief to both spouses. However, in each case the court will determine the degree of fault of each party. The only fault testified to by the plaintiff on the part of his wife was that she intended to go to “Deedie’s” with two other women friends and he did not approve because it was a bar. There is no evidence which would indicate that the wife frequently went to bars unescorted and, in fact, on the occasion in question, because of her husband’s threat, the defendant did not go. We find no mutual, equal fault in the instant case.

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

AFFIRMED.

      . We note Act 495 of 1976, providing a separation from bed and board shall be granted even though both spouses were mutually at fault in causing the separation, became effective October 18, 1976 and the judgment here appealed from was rendered June 9, 1976.

      . LSA-C.C. Art. 145.

      . LSA-C.C. Art. 143; Callahan v. Callais, 224 La. 901, 71 So.2d 320; Maynor v. Maynor, La.App., 234 So.2d 426.

      . Eals v. Swan, 221 La. 329, 59 So.2d 409; Maynor v. Maynor, supra, note 3.


text:
    James JENKINS v. ARCHER-DANIELS-MIDLAND CO., et al.
    No. 8163.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Gordon Hackman, Boutte, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Plaintiff, James Jenkins, has appealed a judgment dismissing his personal injury suit against defendants, Archer-Daniels-Midland Co., Calvin Watson, Richard Burke and Carroll Owens, on exceptions of no right and/or no cause of action. Although St. Charles Grain Elevator was not cited as a defendant, it joined with Archer-Daniels-Midland Co. in pleading the exceptions.

The uncontroverted evidence establishes both corporations occupied an employer status at the time plaintiff was injured and that plaintiff at the time of this hearing was voluntarily being paid workmen’s compensation. Under these circumstances, plaintiff has no right of action against his employers because the workmen’s compensation claim is an exclusive remedy. (R.S. 23:1032.)

As to the suit against the individual defendants, who it has been stipulated are fellow employees of plaintiff, the exception of no right of action cannot be maintained. Workmen’s compensation coverage does not preclude a third party action by the injured workman against a negligent fellow servant. Pflieger v. Haws, 180 So.2d 892 (La. App. 1st Cir. 1965).

Appellees concede the recent Supreme Court decision in Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976), nullifies their position on the exclusiveness-of-remedy argument. Briefly, appellees had urged the expanded federal compensation coverage under recent amendments to the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. § 901 et seq.) had, in effect, prohibited co-employee tort suits by workmen brought within the coverage. In Poche the Supreme Court held this limitation would apply only if, and after, the workmen had elected the federal benefits. Therefore, we conclude the exception of no right of action should have been overruled as to the individual defendants.

In its present form, the petition fails to state a cause of action. However, under C.C.P. art. 934 we remand this matter to afford plaintiff the opportunity to amend his pleadings to cure this deficiency within 30 days from the date this judgment becomes final.

For the reasons assigned, the judgment appealed from is reversed insofar as it maintains exceptions of no right of action against Calvin Watson, Richard Burke and Carroll Owens; is amended insofar as it dismisses plaintiff’s suit on an exception of no cause of action against the individual defendants; and is remanded to permit plaintiff to amend his pleadings to state factually a cause of action within 30 days from the date this judgment becomes final. In all other respects the judgment appealed from is affirmed. The assessment of costs shall await the final adjudication of this case.

REVERSED IN PART; AFFIRMED IN PART; AMENDED IN PART AND REMANDED.


text:
    Succession of Elyard J. MORGAN.
    No. 8167.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    O. C. Stein, Jr., New Orleans, executor-appellee.
    Deutsch, Kerrigan & Stiles, H. Bruce Shreves, New Orleans, for American Fidelity Fire Ins. Co., appellee.
    John E. Adkins, Jr., New Orleans, for Walter R. Chevalier, Jr., appellant.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   SAMUEL, Judge.

The executor of this succession was desirous of selling certain immovable succession property on St. Ann Street in the City of New Orleans at private sale. After more than a year the highest bid he received therefor was $28,000 (the property had been appraised at $26,000). The executor accepted that bid and in due course applied to the court for authority to sell. Subsequent to the acceptance of the $28,000 offer Walter R. Chevalier, Jr., through his attorney, offered to purchase the property for $30,000. Notice of the application to sell at private sale was published on January 31, and February 21, 1976. On February 26, 1976 Chevalier filed an opposition to the sale, to which the executor filed an exception of no right of action.

Following a hearing on Chevalier’s rule to show cause why the property should not be sold to him at the offered price of $30,-000, at which hearing the trial judge found good faith on the part of both litigants, there was judgment maintaining the exception and dismissing the opposition. Chevalier has appealed from that judgment.

The basis for the judgment appealed from is Code of Civil Procedure Article 3283 which reads:

“An opposition to a proposed private sale of succession property may be filed only by an heir, legatee, or creditor.” LSA-C.C.P. Art. 3283.

In this case Chevalier concedes he is not an heir, legatee or creditor; he is simply a third party bidder for the property. Under the above quoted Article 3283, it is clear he has no right to oppose the sale.

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

AFFIRMED.

      . As shown by “Official Revision Comment (b)” under Article 3283, the article codifies the holding in Succession of Saxton, La.App., 72 So.2d 344.


text:
    Michael P. SMITH v. Terry MOORE and Wilson P. Abraham, d/b/a Superstar Productions, Inc.
    No. 8171.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Chaffe, McCall, Phillips, Toler & Sarpy, Gerald Wasserman, New Orleans, for plaintiff-appellee.
    Steeg & O’Connor, Moise S. Steeg, Jr., Edwin O. Schlesinger, New Orleans, for defendants-appellants.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff, Michael P. Smith, filed this suit against defendants Wilson P. Abraham, d/b/a Superstar Productions, Inc. and Terry Moore to recover an amount due for photographic services rendered in connection with a country and western concert held in the Superdome on October 3, 1975. Defendant Abraham filed exceptions of no right or cause of action, answered in the form of a general denial and filed a third party petition against Terry Moore. Defendant Moore did not make an appearance.

The trial judge rendered judgment in favor of plaintiff and against defendants Abraham and Moore in the amount of $999.00. He also dismissed defendant Abraham’s third party petition against Moore. Defendant Abraham has appealed from the judgment.

Plaintiff Smith, a professional photographer was contacted about doing some work for the concert by Cheryl Schoultz, the secretary of Chuck Eastman, the director of the show. Plaintiff was employed by Superstar Productions, Inc., the company putting on the concert through its producer, Terry Moore and its director Eastman. Plaintiff stated that he believed Superstar Productions, Inc. was an existing corporation qualified to do business in Louisiana of which the principal officers were Wilson P. Abraham and Terry Moore. However, it was stipulated at trial that Superstar was not a corporation qualified to do business in Louisiana. Plaintiff was told by Moore and Eastman that Abraham was the financial backer of the show and was responsible for paying plaintiff for his services. Plaintiff testified that he believed that the two were acting as agents of Abraham individually. Plaintiff took photographs for publication during the week prior to the concert and covered the show extensively on the night of the performance. He had no contact with Abraham prior to the performance and first met him when he presented a bill to defendant a few days after the concert took place. Plaintiff admitted that Abraham seemed surprised when he presented him with the bill but was told that the matter would be discussed with Ms. Moore and worked out. Plaintiff testified that defendant assured him he would be paid but that he has never received payment for his work.

Defendant Abraham testified that he conducts the majority of his business through the Wilson P. Abraham Construction Corporation and that he had agreed on behalf of the corporation to finance the production of two shows by Superstar Productions, Inc. He stated that at no time did he do business individually with Superstar nor did he bind himself personally to pay any of the expenses of the show. Abraham said that Ms. Moore was paid a flat fee by the corporation to find acts and material for the show. Defendants’ counsel introduced cancelled checks showing that Ms. Moore was paid by checks drawn on the corporate account. Abraham explained that Ms. Moore had no authority to enter into contracts with the performers and that his signature on behalf of the corporation was necessary to the execution of any performance contracts. Abraham stated that he did not give Ms. Moore the authority to engage the services of a photographer in connection with the show. He testified that he had no use for the photographs and that he believed that Ms. Moore wanted the pictures for her own publicity purposes.

Cheryl Schoultz, the secretary to the director of the show was the only other witness to testify. She stated that her boss’s salary was paid by checks drawn on the account of Wilson P. Abraham Construction Corporation.

Based on the above evidence we find that the trial court erred in failing to maintain defendant Abraham’s exception of no cause of action and reverse the judgment below.

It is well established that a corporation has a separate and distinct existence apart from its stockholders and officers, and in the absence of fraud, the liability of a corporation is not the liability of the shareholders or the officers thereof. See LSA-C.C. Articles 435, 437; LSA-R.S. 12:93(B). Lushute v. Diesi, 343 So.2d 1132 (La.App. 3 Cir. 1977); Kingsman Enterprises, Inc., v. Bakerfield Electric Company, Inc., 339 So.2d 1280 (La.App. 1 Cir. 1976).

It is clear from the record that the parties involved with Superstar Productions, Inc. were transacting business with the Wilson P. Abraham Construction Corporation and not dealing with Mr. Abraham on an individual basis. We need not reach the issue as to whether or not defendant Moore was acting within the scope of her authority as an agent for the Wilson P. Abraham Construction Corporation since the corporate entity was not made a party to this suit. See Star Electric Supply, Inc. v. Sheppard Electric Company, Inc., 236 So.2d 621 (La.App. 1 Cir. 1970).

For the foregoing reasons the judgment of the trial court is reversed as to defendant Wilson P. Abraham and affirmed as to defendant Terry Moore. Plaintiff is to pay all costs.

REVERSED IN PART; AFFIRMED IN PART.


text:
    Ruth Brockhoff SHOTTS et al. v. John DOE et al.
    No. 8186.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Wendell H. Gauthier, Robert M. Murphy, Gauthier & Murphy, New Orleans, for plaintiff s-appellants.

      William F. Bologna, McGlinchey, Stafford, Mintz & Hoffman, New Orleans, for defendants-appellees.
    Before REDMANN, GULOTTA and BEER, JJ.
   REDMANN, Judge.

Plaintiffs appeal from the dismissal on exception of prescription of their tort action against persons not joined as defendants until after the tort prescription period of one year.

In their timely original petition, plaintiffs listed admittedly fictitious names, and no others, as defendants. Plaintiffs did describe the fictitious defendants as their decedent’s fellow-employees of Continental Grain Company, and plaintiffs argue that this naming of Continental in the petition served to interrupt prescription against Continental and therefore against all persons solidarily liable with Continental. Further arguing that the other employees later joined would be solidarily liable with Continental, plaintiffs conclude that the demands against those employees were timely. We disagree.

La.C.C. 3552 only provides for interruption against co-debtors in solido by “citation served upon one” of them (or his acknowl-edgement). Continental was not here cited.

La.R.S. 9:5801 provides for interruption by “commencement of a civil action” but only “as to all defendants” and Continental was not a defendant. Continental was only mentioned in describing the fictitious defendants.

Plaintiffs also argue that C.C. 21 obliges us to “decide equitably” because the law is silent (and further argue they should prevail because defendants’ true identity was deliberately obscured). But the law is not silent: C.C. 3536 expressly provides a prescription of one year for actions for damages “from offenses or quasi offenses.”

Affirmed.


text:
    Joseph F. LABADOT v. Charlotte Anderson LABADOT.
    No. 8210.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Sidney D. Torres, III, Stanford L. Ra-born, Chalmette, for plaintiff-appellant.
    Gregory J. Lannes, Jr., Arabi, for defendant-appellee.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Joseph Labadot has appealed a judgment awarding his divorced wife, Charlotte Labadot, $25 alimony weekly and condemning him to pay her attorney’s fee of $500 for bringing the rule. Appellant contends:

1. the record fails to establish appellee “ * * * has not sufficient means for her support * * * ” (C.C. art. 160); therefore, she is not entitled to alimony;
2. alternatively, if she is entitled to alimony, the award is unreasonably high; and
3. appellant is not liable for his wife’s attorney’s fee because it is not a community debt.

The facts relevant to a determination of whether appellee has insufficient means are these: When this rule was tried on July 29, 1976, Mrs. Labadot’s monthly earnings for the past seven months had averaged $138.30. A 50-year-old high school graduate with no specialized training, Mrs. Laba-dot has been employed part-time as a temporary substitute employee for business clients of Manpower Temporary Services. She itemizes her monthly needs at $441.50, and without belaboring the point, we conclude the expenditures cover only the bare necessities. The record indicates appellee’s mother helps her financially. Mrs. Laba-dot’s assets include a 1974 automobile (on which she had another year to make monthly payments when this rule was tried). She also has five rooms of furniture.

When the parties separated in 1974, Mr. Labadot took both automobiles and a boat, asserting they were his separate property. In 1966 Mrs. Labadot had obtained a judicial separation after which she and her husband reconciled without reestablishing the community. (C.C. art. 155.) Mr. Labadot, claiming the movable assets as separate property, took everything of value when he moved from the home of appellee’s mother, which had also been the matrimonial domicile.

Appellant points out Mrs. Labadot is record owner of an undivided interest in real property valued at $47,500. This is the residence of her 74-year-old widowed mother and she testified that she is not the actual owner. The trial court either accepted this assertion or properly concluded ap-pellee is not required to force a judicial partition of her mother’s home since 1956 before she can be deemed to be in necessitous circumstances.

We affirm the trial court’s finding that Mrs. Labadot has insufficient means for her maintenance and support — that is she does not have sufficient funds to provide food, clothing and shelter. Nielsen v. Nielsen, 343 So.2d 1213 (La.App. 4th Cir. 1977); and Mendoza v. Mendoza, 310 So.2d 154 (La.App. 4th Cir. 1975).

We also affirm the amount. Mr. Labadot reports a net income of $598 and expenses of $597.32 per month. While the 68 cents surplus will not satisfy this judgment, we conclude Mr. Labadot must adjust his expenditures to accommodate payment of this judgment.

Appellant was improperly cast in judgment for the attorney fee of his divorced wife. Even were we to assume that some of the community acquired prior to 1966 remained available to satisfy the attorney fees (and this is hardly likely), there can be no question that it is not a community debt because the judgment of divorce rendered June 5, 1975 had the effect of dissolving the community retroactive to the date of its filing and Mrs. Labadot’s attorney was retained long after the divorce. Schiro v. Perkins, 240 So.2d 920 (La.App. 4th Cir. 1970); Moseley v. Moseley, 216 So.2d 852 (La.App. 2nd Cir. 1968). C.C. arts. 123, 136, 155, and 2405.

For the reasons assigned, the judgment appealed from is reversed insofar as it condemns Joseph Labadot to pay $500 attorney fees to his wife’s counsel. In all other respects, the judgment is affirmed. Each litigant is to pay his or her respective costs of this appeal.

REVERSED IN PART; AFFIRMED IN PART.

      . Labadot v. Labadot, 328 So.2d 747 (La.App.4th Cir. 1976).


text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION v. Ida Watkins, wife of/and Earl ROBERTS.
    No. 7821.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Alfred Abramson, Laplace, for plaintiff-appellant.
    Daniel E. Becnel, Jr., Reserve, for defendants-appellees.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   SAMUEL, Judge.

This is a suit for nullity of a judgment in favor of the defendants, which judgment dismissed plaintiff’s action for seizure and sale by executory process of mortgaged immovable property and restrained and enjoined the sheriff of St. John the Baptist from taking any further action in connection with that executory proceeding. On appeal to this court, the judgment now sought to be annulled was affirmed insofar as dismissal of the suit was concerned on the ground defendants had carried their burden of proving timely monthly payments sufficient to prevent delinquency.

The petition alleges the judgment was obtained by fraud and ill practices in that “the defendant testified that he had made all of his mortgage payments timely and that none of his payments had been returned to him by petitioner”. The petition further alleges tracers had been requested on the postal money orders by which defendants allegedly had made payments, but no information thereon had been received at the time of the original hearing and that, subsequent to the judgment, copies of the cashed money orders were received showing they had in fact been cashed by the defendants and not by the plaintiff.

Plaintiff has prosecuted this appeal from a judgment in favor of the defendants, dismissing plaintiff’s suit for nullity. In this court plaintiff’s sole contention is that .the original judgment should be declared null and void and a new trial ordered because that judgment was obtained as a result of the untruthful defendant testimony.

Only one witness testified at the hearing on the petition for nullity, a plaintiff employee offered by the plaintiff. He stated he had with him copies of money orders which had been submitted to the plaintiff for payment of the loan in suit, but returned by the plaintiff to the defendants and subsequently cashed by the latter. In connection with his testimony, these copies were offered and received in evidence over a timely objection by defense counsel who stated he disputed their authenticity.

The copies so received in evidence purport to be photostatic copies of “United States of America Postal Money Orders” issued by the United States Postal Service. The United States Postal Service, “an independent establishment of the executive branch of the Government of the United States”, is a “political subdivision, corporation or agency” of the United States within the contemplation of Code of Civil Procedure Article 1395. That article requires that such .copies may be introduced in evidence if attested by the officer having legal custody of the record, of by his deputy, and accompanied with a certificate that such an officer has the custody. The article further provides by whom the certificate may be made.

The photostatic copies of the money orders offered by plaintiff contain no attestation by anyone and are not accompanied by any certificate. Accordingly, under Code of Civil Procedure Article 1395 they were inadmissible, should not have been received in evidence, and cannot be considered. As these copies constitute the only proof upon which nullity of the judgment appealed from could be based, we affirm.

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

AFFIRMED.

      . Federal National Mortgage Association v. Roberts, La.App., 317 So.2d 244.

      . Under LSA-C.C.P. Art. 2004.

      . T. 39 U.S.C.A. § 201.

      . We note that the trial court dismissed the suit even though he apparently took the copies into consideration.


text:
    W. H. WARD LUMBER CO., INC. and Jefferson Door Co., Inc. v. INTERNATIONAL CITY BANK & TRUST CO., Lee Homes, Inc. and Leonce J. Miller, Jr.
    No. 7831.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Daniel L. Morrow, Gretna, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, Allen R. Fontenot, New Orleans, for Federal Deposit Ins. Corp., Receiver of International City Bank & Trust Co.
    Before SAMUEL, REDMANN and BEER, JJ.
   SAMUEL, Judge.

Plaintiffs, two suppliers of building materials, filed this suit for sums allegedly due them for materials supplied to the defendant contractor. One of the named defendants is International City Bank & Trust Company. In pertinent part, the petition basically alleges:

The buildings involved were on immovable property formerly owned by the bank, which it had sold to the defendant contractor. As the contractor was a newly formed corporation with no established credit, plaintiffs did not wish to extend credit to it alone. However, based on an internal credit memorandum of the bank, shown to plaintiffs by Miller, which committed the bank to finance all construction costs with disbursements to be made directly “to the subcontractor” and induced by several oral assurances by the bank to plaintiffs that would “see to it that plaintiffs’ accounts were paid in full”, plaintiffs extended credit to the defendant contractor. The bank initially made payments directly to plaintiffs. The account became delinquent, and when plaintiffs contacted the bank they were assured payment would be made to them for deliveries to four construction sites then under development. Shipments were continued by plaintiffs to the four job sites, but the bank did not make payment of the amounts in suit.

In addition, the petition alleges the defendants were engaged in a commercial partnership. The bank answered the petition and also filed an exception of no cause of action. The exception was based on an absence of an allegation of a written guarantee or suretyship agreement by the bank and on the legal theory that a commercial partnership cannot own immovable property-

Thereafter, the petition was amended to remove the allegation of a commercial partnership and, in lieu thereof, to allege the defendants “combined their property, labor and capital with the intent to engage in a common commercial enterprise, development of the . . . property in Timber-lane Estates, Unit 4, thus creating the status of a partnership or joint venture rendering the defendants liable, in solido, for the balance due plaintiffs on these accounts.”

Following a hearing, there was judgment sustaining the bank’s exception of no cause of action and dismissing plaintiffs’ suit against the bank on the ground the petition contained no allegation of a written guarantee or suretyship agreement.

We agree with the trial court’s conclusion that the promise to pay the debt of a third person, here the alleged guarantee or suretyship, must be express and in writing. In addition, we are satisfied from our reading of the entire petition that this ground of objection cannot be removed by amendment. Nonetheless, we find we must remand the matter for further proceedings.

Our established jurisprudence is that an exception of no cause of action accepts the allegations of the petition as true. Thus, we must accept as true the above mentioned amendment to plaintiffs’ petition which alleges the existence of a partnership or joint venture among the defendants rendering them liable in solido for the amount in suit. While the defendant bank argues its only interest or participation in the transaction was that of a mortgage holder, that argument cannot be considered; at this point in the proceedings, it is irrelevant.

It is true, as the bank further argues that the amending allegations are conclusions of law rather than proper allegations of facts, but we are of the opinion that Code of Civil Procedure Article 934 requires that plaintiffs be given the opportunity to amend their petition. In our opinion, this objection as to conclusions of law may be cured by pleading facts which establish such conclusions.

For the reasons assigned, the judgment appealed from is amended and the matter is remanded to the trial court for further proceedings in accordance with law and with the views herein expressed. Plaintiffs are permitted to amend their petition so as to plead facts which establish or point to the existence of a partnership or joint venture among the defendants, if such facts can in truth be pleaded. Plaintiffs are given thirty days from the date this judgment becomes final to so amend. In all other respects the judgment appealed from is affirmed. Assessment of costs shall await a final determination.

AMENDED IN PART; AFFIRMED IN PART; AND REMANDED.

      . The defendant bank, now in receivership, appears in this court through its receiver, Federal Deposit Insurance Corporation.

      . Allegedly, Miller, a defendant, is “one and the same as Lee Homes, Inc. [the remaining defendant]” and he exercised complete control over that corporation as its sole shareholder.

      . LSA-C.C. Arts. 2278(3) and 3039; North Central Utilities, Inc. v. Sarver, La.App., 323 So.2d 173.

      . LSA-C.C.P. Art. 934 reads:
      “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

      . See, e. g., Carpenter v. Herndon, 173 La. 239, 136 So. 577.

      . See note 4.


text:
    Herman CAMPO, III v. William E. GEORGE and New Orleans Public Service, Inc.
    No. 7895.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Kronlage, Dittmann & Caswell, Albert S. Dittmann, Jr., New Orleans, for plaintiff-appellant.
    A. R. Christovich, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff instituted this suit for personal injuries and medical expenses resulting from an injury which occurred on a bus owned and operated by the corporate defendant and driven by the individual defendant. Following trial on the merits, there was judgment in favor of defendants, dismissing the suit. Plaintiff has appealed.

From our review of the record, we find the following facts:

On February 16, 1971 (during the Mardi Gras season), a bus on the St. Claude-Refinery line stopped at the corner of Canal and Rampart Streets where a group of 17 to 20 youthful Negroes boarded the bus, making it standing room capacity. There were only a few white passengers. From the loud, vulgar language and topics of conversation of the group, who gathered in the back like a gang, the driver anticipated possible trouble. The group directed their remarks, boasts and threats to the white passengers.

The bus is equipped with two front and two rear blinker lights which, in the event of a disturbance, the bus drivers are directed to activate for the purpose of alerting police cars or New Orleans Public Service officials that there is trouble on the bus. The driver activated these blinkers two or three blocks after the youths boarded, but ^o help ever materialized.

Although the driver could not see directly to his rear because the shade was down behind him, he could see the group in his rear view mirror. The youths began to harass and intimidate the white passengers. They used profanity to everyone, asked for additional transfers from the driver, and opened the emergency door and yelled out to passing cars. Throughout the ride various passengers got off to catch another bus, saying they were getting off before trouble started.

An elderly lady was harassed because she had several packages on the seat next to her and some of the group said they wanted to sit in that seat, despite the fact that at that time there were other empty seats on the bus. An elderly gentleman came to the woman’s assistance and one of the blacks spat in his face. It was a very tense situation. An armed guard, who was also a passenger and whom the group referred to as a “rent-a-pig”, assisted the lady to the exit where they got off, and the driver continued on his route making various stops and pickups.

There is a police station at the corner of Poland and St. Claude Avenues, 20 feet from a bus stop. The driver made his usual stop there. At that time one of the passengers told the driver that if he were the driver this was the place he would go to seek help. The driver testified he did not seek police assistance at that time because he believed the black youths would be getting off at the Forstall Street stop which was only about 3 or 4 blocks away, and he thought that would end the problem.

After the Poland Avenue stop, one of the group asked plaintiff for a cigarette. He gave them a pack to prevent trouble, and they started to abuse him and his pregnant wife. A black punched him in the face and ran to the rear of the bus taunting plaintiff to come back and fight. Plaintiff’s wife cursed the youth and the gang immediately rushed up and surrounded plaintiff and his wife. At the Forstall Street stop the group of blacks started to alight from the front and back doors until only two of the group remained at the front door. They prevented the driver from closing the door, apparently by remaining on the steps which made closing impossible, and he asked them to move on so that he could proceed on his route. Refusing to so move, the two continued to harass plaintiff. Someone threw a wooden crate in the rear door which landed somewhere near plaintiff. Then one of the two at the front door stepped off, came back in and threw a bottle which hit plaintiff on the head, causing the injuries in suit.

The applicable law is set out in Aime v. Hebert, La.App., 282 So.2d 566, 568:

“While not in the position of an insurer, a public carrier of passengers for hire is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. The mere showing of injury to a fare-paying passenger, and his failure to reach his destination safely, establishes a prima facie case of negligence. Such a carrier can be liable for an assault by one passenger on another passenger where there is reason for the carrier employee to anticipate the assault and a failure on his part to take such action as may be practicable under the circumstances to prevent the assault from being committed or to interfere with its execution.” (footnotes omitted).

Aime v. Hebert, in which we decided in favor of the defendant bus company and its driver, is factually distinguishable from the instant case. In Aime the offending youths were noisy and boisterous but kept themselves in the rear of the bus and had not physically molested any of the other passengers, so that, as the Aime court concluded, the driver could not have reasonably anticipated they or any one of them would assault one of the other passengers.

In the instant case the driver could and should have reasonably anticipated the black youths would assault the plaintiff or other passengers. His passengers were aware of that distinct possibility and, by his own admission, he was aware the situation was tense and dangerous. The fact that the incident in suit did not occur until the group was leaving the bus could not have come as a complete surprise. The problem began almost four miles from where the incident finally occurred. Yet, the driver did nothing to alleviate the tension other than to put on his blinker lights despite the fact that prior to the incident the bus was stopped on Poland Avenue only 20 feet from a police station. Accordingly, we hold the defendants have failed to carry their burden of showing freedom from any negligence which caused or contributed to plaintiffs injury.

Regarding damages, immediately after the incident plaintiff was taken to St. Claude General Hospital where he was given first aid and a tetanus shot. A wound caused by the heel of the bottle could not be stitched because it was in the area of the upper forehead and scalp. The following evening he was incoherent and in severe pain and was taken to Veterans Hospital. A month after the incident he was seen by Dr. David Wyatt Aiken. The doctor diagnosed plaintiff’s injuries as laceration of the frontal region of the scalp, probably with mild cerebral concussion, tinnitus and dizziness, and mild cervicodorsal sprain. He was examined May 10 and June 14, and on the latter date he was referred to the New Orleans Speech & Hearing Center. On July 24, he again complained to Dr. Aiken of pain in the ear. On September 21, he was discharged. The ear pain or tinnitus had cleared two weeks previously and the semicircular scar caused by the bottom of the bottle was nontender and completely covered by hair.

We are of the opinion plaintiff is entitled to recover $115 for the medical bills and $3,500 for his pain and suffering resulting from the injury.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment in favor of Herman Campo, III, and against defendants, William E. George and New Orleans Public Service, Inc., in solido, in the full sum of $3,615.

REVERSED.

      . See Wise v. Prescott, 244 La. 157, 151 So,2d 356; Gross v. Teche Lines, Inc., 207 La. 354, 21 So.2d 378; Vaughn v. New Orleans Public Service, Inc., La.App., 314 So.2d 545.


text:
    RADIOFONE v. OXFORD BUILDING SERVICES, DIVISION OF CONSOLIDATED FOODS CORPORATION.
    No. 8105.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Peter A. Winkler, Jr., New Orleans, for plaintiff-appellee.
    Kehl & Pickering, Gary A. Cotogno, New Orleans, for defendant-appellant.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

This is an appeal from a judgment ordering Oxford Building Services, division of Consolidated Foods Corporation, to pay $355.17 for services and equipment supplied by plaintiff, Radiofone, plus $100 attorney fees. Appellant denies liability on the basis that its employee who entered into the agreement on its behalf had no authority to bind the company.

On May 21, 1975, Mary Handley, a salesperson with Radiofone, received a telephone inquiry about the communication service plaintiff offered. She made an appointment to demonstrate the equipment at the corporate office of defendant maintained at the New Orleans International Airport to Bill Richard, defendant’s project manager. Richard supervised the entire operation of defendant’s furnishing janitorial services to the airport. He had 21 employees under his supervision and was subject to call on a 24-hour basis.

After the beeper communication equipment was demonstrated, Mrs. Handley filled in an application for Oxford Building Services, Inc., on which she noted the names of three corporation officers based in Atlanta and Malcolm Ellerworth, defendant’s operations manager in New Orleans. Checking credit references is not Mrs. Handley’s job'; therefore, she could not attest to the procedure plaintiff’s representative followed in this case. Customarily, she explained, the local reference would have been contacted to confirm that Richard was in fact employed as project manager. Because Malcolm Ellerworth did not appear as a witness the record does not explain if this was done. At the trial, Richard’s employment in this capacity at the time the agreement was signed was confirmed by the corporation.

On May 23, 1975, William Richard signed a subscription agreement with plaintiff as the representative of Oxford Building Service. Mrs. Handley then gave Richard the radio paging unit that must be carried by the person to be contacted. Stamped on the agreement is a list of charges totaling $139.25 presumably due at the signing of the contract. Richard gave Mrs. Handley his personal check for this amount. She explained that it was not unusual for Radi-ofone to accept personal checks for the initial payment when dealing with corporations. In due course, Richard’s check was returned to plaintiff dishonored as NSF. Nonetheless Radiofone continued service for a period after the check was returned because the claim is itemized in this way:

“Date Amount Billed
5/23/75 15.00 hook up charge
5/23/75 5.67 partial month charge
6/1/75 24.25 service for June
7/1/75 24.25 service for August
8/1/75 286.00 bill for unit not returned.
TOTAL AMOUNT DUE: $355.17”

In denying liability defendant gave a lengthy and irrelevant explanation of its internal purchasing procedure to establish Richard’s lack of authority. No one disputes the nonexistence of a principal-agent relationship insofar as this transaction is concerned. The issue is whether plaintiff might reasonably have assumed from the circumstances that Richard had authority to act for the corporation or whether its representatives had the obligation to verify with the defendant the agency relationship before it could be bound.

We conclude this case falls within C.C. art. 3000, which provides:

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

In dealing with Richard, Mrs. Handley demonstrated equipment to the manager of a 21-man, 24-hour operation in the corporation office maintained at the airport. It was not unreasonable for her to infer she was dealing with a representative of defendant clothed with authority to bind his company. Further, the communication service plaintiff furnishes would facilitate the operation of this type of business. Thus it cannot be said that Mrs. Handley was unreasonable in assuming Richard was “ * * doing any business in the ordinary course of affairs to which * * * [he was] devoted * * The rationale of United States F. & G. Co. v. Dixie Parking Serv., Inc., 262 La. 45, 262 So.2d 365 (1972), is appropriate here. The defense of lack of authority must fail because the defendant’s manager was clothed with apparent authority to act on its behalf. Were we to require each business dealing with a corporation to be authorized by written resolution before recognizing its validity, we would impede the flow of commerce.

This is the underlying principle that guided the courts in Dart Distributors, Inc. v. Foti Enterprises, Inc., 271 So.2d 705 (La. App. 1st Cir. 1972), and Caston v. Woman’s Hospital Foundation, Inc., 262 So.2d 62 (La. App. 1st Cir. 1972), to hold the corporations liable for contracts entered into by their unauthorized agents when the objects of the agreements were goods or services the corporation might require in the normal conduct of its business.

Appellant relies on a line of jurisprudence requiring the third party to inquire into the authority of the agent before entering into a transaction with his principal. For example, Federal Ins. Co. v. C & W Transfer & Storage Co., Inc., 282 So.2d 563 (La.App. 4th Cir. 1973), refused to validate a limitation of liability clause on a contract of bailment when the bailee’s insurer declined payment for losing two oriental rugs. When the owner’s maid handed the rugs to an employee of the bailee, she was handed a ticket with a limitation-of-liability clause printed on the reverse side. The court reasoned it was obvious the only authority the maid had from the owner was to turn over the rugs and not to enter into any limitation-of-liability agreements. Absent proof of the mandate to agree to the condition of bailment, the court would not enforce this provision. Of course, the insurer could not have relied upon the apparent authority rationale either.

Nor could C.C. art. 3000 have aided the creditor in Builders Center, Inc. v. Smith, 228 So.2d 245 (La.App. 1st Cir. 1969). A contractor opened a charge account in the name of a man for whom he was building a house and charged a large quantity of materials he used in construction. The supplier made no inquiries to the owner to verify the contractor’s authority and the owner did not authorize the account nor was he aware of it. In rejecting the supplier’s claim on open account against the alleged principal, the court pointed out the supplier had the duty to investigate whether the purported agent had authority to act. The distinguishable factor is the contractor did not deal under circumstances from which a reasonable person could infer he had apparent authority to bind his alleged principal.

In Carey Hodges Assoc. Inc. v. Continental Fid. Corp., 264 So.2d 734 (La.App. 1st Cir. 1972), the court refused to honor a contract because there was no corporate resolution authorizing the agent to act. Plaintiff did preliminary survey work to obtain estimates for the construction, financing, and promotion of a racetrack. The principal for whom the work was performed did not wave the lack of authority flag until the service was completed. The crux of the principal’s complaint was that the bill was too high, although it was pegged at 7 percent of the total cost before plaintiff began the work. The court held for the principal in a questionable application of C.C. art. 2997, which specifies certain mandate must be express. In that case the court reasoned the agent acknowledged a debt. It seems that the agent in reality contracted for services and he had previously dealt with plaintiff and bound his corporation.

We could reach an opposite result in this case by reasoning the agreement in question was the sale of a service and rely on that part of C.C. art. 2997, which requires authority to buy and sell to be express. But this would defeat the purpose of C.C. art. 3000. We note an inconsistency in the spirit in which our courts apply the apparent authority theory to validate contracts vis-a-vis the strict proof demand to defeat them.

We elect to apply C.C. art. 3000 to reason that the defendant is liable for all amounts due to plaintiff until the time Richard’s check was returned with the NSF notation. Plaintiff was entitled to rely on the apparent authority of the project manager of the airport until something occurred that would cause a reasonable man to inquire further into the circumstances. Once the check was returned, plaintiff should have dealt on an arms-length basis. Having failed to do so, it should not be awarded a judgment for services rendered beyond that time. Accordingly we reduce the judgment by $24.25. It is clear from the record that the equipment was furnished and the monthly service and hookup charges otherwise claimed were due before plaintiff should have become aware of Richard’s lack of authority.

For the reasons assigned, the judgment appealed from is amended to reduce the judgment from $355.17 to $330.92 and is affirmed in all other respects. Defendant is to pay all costs.

AMENDED AND AFFIRMED.


text:
    Mrs. Alice MANSFIELD v. WINN-DIXIE LOUISIANA, INC., et al.
    No. 8107.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Christovich & Kearney, John J. Cooper, New Orleans, for defendants-appellees.
    John E. Ruiz, Jr., New Orleans, for plaintiff-appellant.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Winn-Dix-ie Louisiana, Inc. and its liability insurer, The Fidelity and Casualty Company of New York, seeking to recover damages for personal injuries allegedly sustained as a result of a battery committed upon her by Winn-Dixie’s store manager. Defendants’ answer denied the allegations of plaintiff’s petition. After a trial on the merits, judgment was rendered dismissing plaintiff’s suit. Plaintiff has appealed.

The evidence in the record contains conflicting versions of the incident which occurred on December 7, 1970 in one of defendant’s stores. Plaintiff and her two daughters testified: They had completed their grocery shopping and were standing in a checkout aisle waiting for a cashier to price and bag her purchases when the store manager attacked plaintiff in the checkout line, shoved a grocery cart into her, and used loud and abusive language, accusing her of shoplifting. Plaintiff was pregnant at the time and suffered a miscarriage approximately two weeks later.

Plaintiff also testified: She suffered a back injury as a result of the incident. She sought treatment at Charity Hospital in New Orleans for her back injury after recuperating from the miscarriage and later consulted Dr. Byron Unkauf regarding that injury.

Defendant’s store manager testified he had observed plaintiff and suspected her of attempting to shoplift a utensil used for cutting pizza. He stated that while plaintiff was in the checkout line he made inquiry regarding the possible theft and commented to her it would be “a hell of a thing to have to spend the holidays in jail.” He requested the cashier to bag plaintiff’s purchases and attempt to determine if plaintiff had stolen any items. Finally, he testified he requested plaintiff and her daughters not to patronize the store as they were leaving the premises. He emphatically denied pushing a grocery cart into plaintiff as well as any other physical contact with her, and the testimony of the cashier who bagged plaintiff’s purchases is to the same effect.

While the two versions directly conflict, there is nothing in the evidence showing the trial judge committed error in dismissing plaintiff’s suit, in fact the contrary is indicated.

Plaintiff’s factual evidence regarding the incident consisted of her testimony and that of her two daughters. None of the three made a report of the incident to anyone before leaving the store, nor did they obtain or seek to obtain the names of witnesses whom they say were standing in the front and in back of plaintiff in the same checkout line. The hospital records of plaintiff’s miscarriage contain no reference whatever to either abusive language by defendant’s manager or his striking her with the grocery cart. Defendant’s expert in obstetrics and gynecology testified without contradiction neither the abusive language nor the battery described by plaintiff, in his opinion, was sufficient to cause a miscarriage and plaintiff’s prior medical history indicated she was a poor risk for a successful pregnancy.

In addition, plaintiff did not attempt to subpoena the Charity Hospital records of her post-miscarriage treatment for the back injury. Defendant subpoenaed these records, but the hospital made a return in response to the subpoena which indicated a search revealed no records of any treatment for plaintiff at Charity. Plaintiff did relate a history consistent with her testimony to her physician, but this did not take place until approximately 11 months after the incident, and under these circumstances her statements to this physician are suspect.

In Canter v. Koehring Company, the Supreme Court stated:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.”

Here, where the factual questions are dependent primarily on the credibility of the witnesses, we find no error, manifest or otherwise, in the trial court’s acceptance of the testimony offered by the defendants.

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

AFFIRMED.

      . La., 283 So.2d 716, 724.


text:
    Robert P. NAQUIN v. The AMERICAN BANK OF LULING, Louisiana, et al.
    No. 8114.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Morris G. Becnel, Boutte, for plaintiff-appellant.
    Leon C. Vial, III, Vial, Vial & Lemmon, Hahnville, for defendants-appellees.
    • Before REDMANN, GULOTTA and BEER, JJ.
   REDMANN, Judge.

Plaintiff questions defendant bank’s having applied half of plaintiff's late parents’ $9,000 savings account against a debt owed to the bank by plaintiff’s brother.

The father had executed an “assignment” of the account to the bank “as a security for $16,557.60.” The trial judge correctly ruled that this “assignment” was a pledge to secure payment of the $16,-557.60 loan made the same day to plaintiff (with the father and brother co-signing the note) and not a then payment against the loan.

Any argument that the “assignment” was not a pledge but a payment would place upon it a construction which is unacceptable because absurd, La.C.C.1945(3), and a construction contrary to that placed upon it by the parties themselves, C.C.1956, in allowing the loan and the savings account both to continue to exist.

Plaintiff’s argument is unfounded that the acceptance of a pledge from a third person defeats the pledgee’s right to enforce the principal obligation against the obligor in personam except after first enforcing it in rem against the thing pledged. “The pawn invests the creditor with the right of causing his debt to be satisfied . out of the product of the movable . which has been thus burdened.” C.C. 3157 (emphasis added). The pledgee has the right but no obligation to execute against the pledge.

Pledge is but an “auxiliary” obligation, C.C. 3136 (just as suretyship and mortgage are “accessory” obligations, C.C. 3035 and 3284). The principal obligation — here, plaintiff’s obligation to repay the money it borrowed from defendant — is not canceled or reduced by the pledge of a third party’s savings account (although one might recoil at a bank’s insisting on suing a borrower whose own savings account with the bank, pledged to secure the loan, was sufficient to pay the loan).

After the death of the parents it was at least possible, though not certain, that plaintiff himself had inherited an undivided half of his parents’ savings account. Were that the case, the bank might appropriately have recognized some kind of obligation (not necessarily a legal obligation) to credit plaintiff’s then past due loan with his half of the savings account, and not to sue him for the entire balance. But there was no legal obligation upon the bank to apply the other half of the account (that possibly inherited by plaintiff’s brother) to plaintiff’s loan.

The bank’s only obligation is to preserve the pledge against “loss or decay”, C.C. 3167, and to return it when the principal obligation is discharged, C.C. 3164. The bank’s applying that second half of the account to the brother’s debt amounts to a return to the brother of the portion of the pledge which he presumably inherited.

Plaintiff complains, and the brother testified, that the brother owed him $4,000 and had therefore agreed that this account would be used entirely to reduce plaintiff’s debt. But that agreement is not contained in the agreements with the bank (the-note and the “assignment”) signed by the brother.

In sum, this case is substantially that of a loan secured by pledge of an accommodation co-maker’s property, in which the pledge has been returned to the co-maker’s heir. We find no cause of action in favor of the borrower against the lender.

Affirmed.


author: BEER, Judge.

text:
    ACRES, INC. v. NEW ORLEANS MORTGAGE COMPANY, INC.
    No. 8143.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Gordon K. Konrad, Gretna, for plaintiff-appellant.
    William J. Goliwas, New Orleans, for defendant-appellee.
    Before REDMANN, GULOTTA and BEER, JJ.
   BEER, Judge.

On January 4, 1966, Acres, Inc. sold certain lots to Viking Homes, Inc. Acres was paid by promissory notes amounting to $272,550.00, secured by a vendor’s lien. On April 1, 1966, Viking executed a collateral mortgage in favor of New Orleans Mortgage Company, Inc. to secure two notes, one for $438,460.25 and the other for $569,-182.58. Shortly thereafter, on April 5,1966, Acres, Inc. subordinated its vendor’s lien on the lots to the collateral mortgage held by New Orleans Mortgage. Viking defaulted, and New Orleans Mortgage foreclosed. The property was seized, and, at the judicial sale on July 17, 1968, New Orleans Mortgage successfully bid it in for $800,000.00, “subject to the outstanding water, paving and sewerage liens which applied against the property.”

As of the date of the judicial sale, Viking owed New Orleans Mortgage $481,286.44. The proces verbal which transferred title to New Orleans Mortgage included the condition that it apply the balance to the vendor’s lien. Acres alleges that the balance should be applied against the vendor’s lien before satisfying outstanding water, paving and sewerage liens ($686,710.69). New Orleans Mortgage filed an exception of no cause of action which was maintained and now forms the basis for this appeal. The provision in the Sheriff’s proces verbal, on which Acres bases its contention, reads as follows:

“The purchaser herein buys the herein described property subject to the Water, Paving and Sewerage Liens. The balance to be retained and applied to the vendor’s lien.”

Although this wording, in and of itself, may appear to be ambiguous, the uncontested act of subordination by Acres is the material consideration.

Book IV of the Louisiana Code of Civil Procedure (1960), entitled “Execution of Judgments,” states the germane principles. Fortier v. Fortier, 200 So.2d 901 (La.App. 4th Cir., 1967), writs ref., 251 La. 59, 202 So.2d 661, carries those principles into practical application:

“In judicial sales in Louisiana the sheriff shall announce that the property is to be sold for cash subject to any mortgage, lien or privilege thereon superior to that of the seizing creditor. C.C.P. 2335. If there is a mortgage, lien or privilege on the property superior to that of the seizing creditor, the purchaser shall pay to the sheriff only that portion of the sale price which exceeds the amount of the superior mortgage, lien or privilege. C.C.P. art. 2374. Said articles accord with articles 679 and 683 of the late Code of Practice. Our law requires that at a judicial sale the purchaser shall bid for the full value of the property with the right to retain in his hands out of said price sufficient money to pay mortgages, liens and privileges superior to that of the seizing creditor. * * * At any rate, ... it becomes incumbent upon the adjudicatee to pay up superior mortgages, liens and privileges in order to perfect an unencumbered title to the property.”

In a judicial sale, the property is sold subject to any real charge with which it is burdened, superior to the mortgage of the seizing creditor. LSA-C.C.P. Art. 2372. Since the relevant facts are not in dispute, the trial court correctly determined Acres, Inc. was without a cause of action. The judgment is affirmed at appellant’s cost.

AFFIRMED.


author: LEMMON, Judge.

text:
    Randall J. WEBER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 8146.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Marvin C. Grodsky, New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., New Orleans, for defendant-appellee.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   LEMMON, Judge.

Plaintiff has appealed from the dismissal of his suit for damages incurred in an inter-sectional collision. On appeal plaintiff does not dispute the trial court’s factual finding, based on resolution of conflicting testimony, that he entered the intersection on a red light. He contends, however, that, since he was driving an emergency vehicle with siren sounding and light flashing, he properly proceeded into the intersection after ascertaining it was safe to do so.

The collision occurred at the intersection of DeGaulle and Holiday Drives, both of which are divided thoroughfares. Plaintiff was traveling south on Holiday in the left of two southbound lanes, while defendant was traveling west on DeGaulle in the left of two westbound lanes.

Plaintiff testified that he approached the intersection at about 55 miles per hour and, after slowing and ascertaining by looking to his left that westbound traffic in the right lane of DeGaulle was stopped, proceeded into the intersection and was struck from the left by defendant’s skidding vehicle.

Defendant testified that as he approached the intersection on DeGaulle at 35 to 40 miles per hour (the limit being 45), the light turned green, and he moved into the clear left lane because three cars were stopped in the right lane. He was about even with the first car in line when he heard the siren, and he immediately applied his brakes, but skidded across the two northbound lanes of Holiday and the width of the 10 to 12-foot neutral ground before striking plaintiff’s car in the left front fender.

New Orleans City Code, 1956, § 38-21(b)(2), authorizes an emergency vehicle on an emergency call to “(p)roceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation”. § 38-21(d) further provides:

“The foregoing provision shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provision protect the driver from the consequences of his reckless disregard for the safety of others.”

While penal statutes are not in and of themselves definitive of civil liability, such statutes may be used as guidelines in fixing civil liability. Laird v. Travelers Ins. Co., 263 La. 199, 267 So.2d 714 (1972). The determination of a motorist’s negligence, however, is ultimately based on reasonableness.

In this case the driver of the emergency vehicle ascertained only that one of the two lanes of westbound traffic was yielding the right of way to him. This conduct did not meet the standard of reasonable behavior under the circumstances. Even if the evidence showed that defendant should have heard the siren or seen the flashing lights, that fact would not absolve plaintiff from the duty of ascertaining before entering the intersection that all traffic favored with' a green light was yielding to his emergency vehicle, and his failure to do so constitutes negligence which bars his recovery.

The judgment is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Michael E. GEISSLER v. UNITED STATES FIDELITY & GUARANTY COMPANY and Mrs. Hattie L. Geissler.
    No. 8242.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Edward J. Norton, Jr., New Orleans, for Michael E. Geissler, plaintiff-appellant.
    Lawrence D. Wiedemann, Wiedemann & Fransen, New Orleans, for U. S. Fidelity & Guaranty Co. and Hattie L. Geissler, defendants-appellees.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Michael Geissler, plaintiff-appellant, filed suit for damages against his mother, Mrs. Hattie Geissler, and her insurer, United States Fidelity and Guaranty Co., for personal injuries allegedly sustained in a slip and fall type accident on the front porch of his mother’s home on May 15, 1972. After trial on the merits, judgment was rendered for the defendants and plaintiff appealed.

The facts surrounding the accident itself are uncontested. On the night of May 15, 1972, the plaintiff was relaxing on a sofa at his mother’s home waiting for a tow truck to bring his disabled auto to the house. Around 10:30 P.M. the tow truck arrived and the plaintiff went outside to direct the placement of the vehicle. The plaintiff was not wearing shoes at the time; there is some question as to whether he was wearing his socks, but the trial judge concluded he was barefooted. He soon discovered that he had left his car keys inside the house, so he returned to the house at a pace described variously to be a run, a jog, and something between a walk and a jog. It had been raining most of that day and the sidewalk and concrete porch were wet.

As the plaintiff reached the slab portion of the overhang, which was of a smoother finish (a steel trowel finish) than the sidewalk, the plaintiff’s foot slipped. As the plaintiff fell, his head struck either the mailbox, the brick wall or both. The plaintiff then became unconscious and was taken to East Jefferson Hospital for treatment.

Plaintiff contends that his mother and her insuror are liable for damages in that the premises of Mrs. Hattie Geissler contained vices and defects, the concrete slab area of the porch was slippery, and that there was improper illumination of the area where the fall occurred. Plaintiff contends that those factors were the cause of his slip and fall and that the blow to his head suffered in the slip and fall has caused him to suffer a convulsive disorder.

To support his contention that the area where he fell was defective in that the concrete was so slippery as to be dangerous when wet, plaintiff called Dr. Frank Durham, a physicist. Dr. Durham made several tests of the subject area to determine the coefficient of friction and determined that the area where the slip occurred has a low coefficient of friction and thus was more susceptible to causing people to slip. Although the figure he determined indicates slipperiness according to a standard scale used in determining the coefficient to friction between two objects, the witness did not establish the standards for safety using his method of testing.

Defendants’ expert, Mr. Cecil Shilstone, tested the subject surface with a standard, testing device approved by the United States Bureau of Standards. The results of the test were also supported by another device developed by the State of California. Mr. Shilstone tested the concrete at the area of the slip under both wet and dry conditions, and gave the opinion that even under the worst conditions, the “anti-slip coefficient” was within the standards regarded as “fair” by the United States Bureau of Standards. Additionally, Mr. Shil-stone testified that he had observed no structural defects at the area of the slip and fall.

The trial judge considered the issues to be whether the premises were safe or unsafe, and the contributory negligence of plaintiff. In dealing with those issues, the trial judge made the following conclusions in his reasons for judgment:

1). The plaintiff had lived in the premises prior to his marriage and was familiar with the slab portion and had been over these portions many times prior to and after his marriage, and there is no question that this is an area unfamiliar to him.
2). No one had ever had difficulties with the portion of the slab which forms the entrance to the front door and there had been no complaints of anybody falling previously.
3). Based upon the testimony of Mr. Shilstone, the portion (of the concrete slab) in front of the door did not have any structural or design defects.

In accordance with those conclusions, the trial judge was of the opinion that the accident complained of was not due to any structural or design defects but was due to plaintiff’s fault and negligence under the circumstances.

The record supports the finding that the premises were not unreasonably unsafe for normal use. By plaintiff’s own admission it is apparent that he was quite familiar with the area where he slipped and fell. Further, the plaintiff was trotting or jogging without shoes even though the area was wet from a day of rain. We agree with the trier of fact that to act in such a manner is not the exercise of the degree of care that an ordinary man would have used under like circumstances, and that the accident occurred due to plaintiff’s negligence.

It is well settled in our law that the judge is the trier of fact, and his findings will not be disturbed on appeal unless there is a showing of manifest error. Cannon v. Baron, La.App., 289 So.2d 835 (1974), Canter v. Koehring Company, La., 283 So.2d 716 (1973). Our review of the record fails to reveal any manifest error on the part of the trial court.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . Because of the result reached in our determination of liability we pretermit a discussion of the issue of whether plaintiff proved a causal relationship between the fall and the convulsive seizure disorder.