author: BOUTALL, Judge.

text:
    Earl WILLIAMS v. Valentine TIMPHONY et al. CONTINENTAL CASUALTY COMPANY v. Valentine TIMPHONY et al.
    Nos. 7010, 7011.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Roy J. DiVincenti, III, Trial Atty., Pit-ard, Pitard & Porobil, Gregory M. Porobil, New Orleans, for Valentine Timphony, Checker Cab Co., and Manchester Ins. & Indem. Co.
    Deutsch, Kerrigan & Stiles, by Raymon G. Jones, New Orleans, for Continental Casualty Co.
    Dodge, Friend, Wilson & Spedale, by Gordon F. Wilson, Jr., New Orleans, for Earl Williams.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This suit arises out of two collisions on the Wisner Overpass, a four lane roadway with dividing median, in the City of New Orleans. The night of February 9, 1973 was a cold and stormy one; it had snowed almost all day and ice was forming on many of the city’s overpasses. Juan Cardoza, with his wife and child, attempted to traverse the Wisner Overpass at approximately 8:30 that evening. The Cardoza vehicle failed to get to the crest of the overpass due to its lack of speed and the icy conditions. Being unable to get over the crest and unwilling to back down the slope, Mr. Cardoza simply stopped his car somewhere near the top of the overpass in the right hand lane of Wisner Blvd.

Plaintiff Earl Williams was proceeding along Wisner in the same direction as Cardoza and in the same lane. He testified that he did not see the Cardoza vehicle until he was about 50 feet from the bottom of the overpass. As soon as he realized that the Cardoza car was not moving he attempted to change lanes. However, a car overtaking him in the left lane caused him to stay in the right lane and apply his brakes. The braking of his car caused him to slide on the ice and he collided with Cardoza’s car. Both Mr. Williams and Mr. Cardoza testified that the collision was slight and very little damage occurred to either vehicle. The two vehicles were stopped, one a short distance behind the other, in the right hand lane.

After the collision Mr. Cardoza and Mr. Williams ’talked a few minutes, helped push several other cars over the crest of the overpass, talked to a Park policeman (who promised to call the City Police to the scene), and finally retreated to their respective cars to avoid the biting cold. Williams testified that this entire time his emergency flasher lights were operating.

While seated in his car Williams noticed two sets of headlights approaching from his rear. One set was proceeding very fast and had just passed the other set and changed into his lane. Realizing that the speed at which this car was traveling (estimated at 60 miles per hour) would not allow it to stop in time to avoid a collision, Williams attempted to get out of his car and seek safer ground. Due to the stress of the situation and the fact that- he had inadvertently locked his door, Williams fum.bled several seconds with the door lock and handle. By this time the car was upon 'him, smashing him from the rear and sending his car careening across the left lane, coming to rest straddling .the median of the four lane bridge.

After the collision Williams went back to the car that had hit him only to discover that it was a taxicab containing two people. He talked to the driver and smelled a strong odor of alcohol on his breath. The passenger appeared injured and also smelled of alcohol. The facts of the accident and the condition of the taxicab driver as testified to by Williams are corroborated by the testimony of Cardoza.

Williams further testified that he became nervous and upset following this second accident and that when he finally got home and calmed down he started to feel pain in his neck and back. This pain was later diagnosed as a muscle injury along the cervical and lumbar spine from which Mr. Williams recovered after several months of treatment.

The version of the accident as recounted by Mr. Timphony, the driver of the taxicab, is very different from that of Mr. Williams and Mr. Cardoza. Timphony was at the time employed by the Fair Grounds racetrack as a pari-mutuel clerk. He stated that at the close of racing on February 9, 1973 two friends came to him and asked him to drive them to certain places, because they were both very intoxicated. Timphony agreed and so from 5:30 P.M. until 8:30 P.M. the three of them went to two barrooms and dropped off one of the friends. At each bar Timphony consumed one beer, for a total of two beers before the accident. Timphony stated that he was going to take his other friend home as he approached the Wisner Overpass at about 8:45 P.M.

Mr. Timphony describes the accident in the following way: It was very dark and cold, visibility was poor due to snow falling. He was driving approximately 20 to 22 miles per hour in the left hand lane on the overpass as he reached the crest. On the other side of the crest, at a distance of 30 feet, was an object in his lane which he could not identify. By the time that he saw it was a car straddling the median it was too late and he smashed into the left rear quarterpanel of the car. The force of the impact did two things; it caused his car to veer to the right and come to rest in the right hand lane a short distance behind Mr. Cardoza’s car. As to the car on the median it did nothing, that car didn’t move at all. He states that right after the accident he saw two people running away on the overpass.

Mr. Williams sued Mr. Timphony, the cab company and its insuror. The defendants answered and made a third party demand upon Mr. Cardoza. In the consolidated case Mr. Williams’ automobile insurance company sued the defendants for the money it expended to fix Mr. Williams’ car. The trial court rendered judgment for both plaintiffs and dismissed the defendants’ third party demand against Mr. Cardoza.

The defendants, on appeal, assign as error the failure of the trial court to hold Mr. Williams contributorily negligent; also, they feel Mr. Williams failed to prove that his injuries resulted from the second accident. We will take each contention in order.

CONTRIBUTORY NEGLIGENCE

Defendants contend in this Court that LSA-R.S. 32:141 is applicable to this case and the trial judge failed to give it effect. We first note that this is a state law applicable to state highways as part of the Highway Regulatory Act. LSA-R.S. 32:41 grants local municipal authorities power to regulate the standing or parking of vehicles on other than state maintained highways. Defendants have also pleaded the traffic ordinance of the City of New Orleans, and absent proof that this is a state maintained highway, the controlling law seems to be New Orleans City Code, 1956; § 38-131 (b) which sets out the duty to warn other traffic of one’s disabled car. The basic issue is, did Mr. Williams discharge his duty to warn oncoming traffic of his disabled vehicle?

The widely divergent stories of the two parties presented the trial judge with a clear decision. If Mr. Williams and his witness, Mr. Cardoza, were to be believed then Williams discharged his duty by having his flashers on. An oncoming driver that was keeping a proper lookout would have seen the disabled cars and thus have avoided the accident. Agnello v. Allstate Insurance Co., 252 So.2d 538 (La.App. 4th Cir. 1971); Lawrence v. Winn-Dixie Louisiana, Inc., 208 So.2d 329 (La.App. 3rd Cir. 1968). On the other hand if Mr. Timphony is to be believed the situation created a trap for him and this trap required Williams to do much more than he did to discharge his duty of care. Laird v. State Farm Insurance Co., 290 So.2d 343 (La.App. 4th Cir. 1974); Casagrande v. Roullier, 267 So.2d 260 (La.App. 4th Cir. 1972).

It is obvious that the trial court believed Mr. Williams and Mr. Cardoza. The only other witness was the investigating police officer, however, his testimony is of little value since there were glaring inconsistencies between his testimony in court and the report he filled out at the time of the accident. It does not require citation that the trial judge is the best judge of credibility of the witnesses. We find no error in his credibility decision.

DAMAGES

The defendants contend that there is not sufficient evidence to conclude that Williams’ injuries resulted from the second accident. We hold that the following facts show that it is more probable than not that Mr. Williams was injured in the second accident and not the first.

The impact of the first collision was described as slight by both parties involved. The second collision was described as taking place at great speed, doing almost all the damage to the Williams’ car and having a heavy impact. Mr. Williams testified that he braced himself for the first collision because he knew it was coming. He was unbraced for the second collision because he was trying to get out of his car. Dr. Braud, plaintiff’s physician, testified that Mr. Williams had a flexion-extension type injury of the cervical and lumbar spines. Following the first accident he felt no pain and in fact engaged in the strenuous activity of pushing cars over the crest of the overpass.

For the above reasons we affirm the judgments of the trial court at appellants’ cost.

Affirmed.

      . “§ 141. Stopping, standing or parking outside business or residence districts
      “A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
      “B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.
      “C. The driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence. Acts 1962, No. 310, § 1.”


source: Caselaw Access Project

author: MO RIAL, Judge.

license: Public Domain

text:
    In the Interest of Tina Marie GRAS.
    No. 7009.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Writ Granted Dec. 19, 1975.

      Abbot J. Reeves, Gretna, for plaintiff-appellee.
    Margaret W. Berck, New Orleans, for respondent-appellant.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   MO RIAL, Judge.

Tina Marie Gras is a fourteen year old female, whose parents are deceased. She resided with her guardian brother and sister-in-law, Mr. and Mrs. Edwin Gras. Her guardians brought her to the office of the Jefferson Parish Juvenile Probation Department complaining she was ungovernable in that she was skipping school and had run away six times. On January 21, 1974 a petition was filed in her interest in the Juvenile Court for the Parish of Jefferson alleging her to be a “child in need of supervision.” LSA-R.S. 13:1569, subd. 15(b); 1570, subd. A(3). Tina Marie Gras was adjudged a proper person for commitment to the care of the Department of Corrections on January 30, 1974. Sentence was suspended and she was placed on active probation for an indefinite period in the custody of her guardians.

On March 14, 1974, the juvenile left home for school. She did not return home and was reported missing. The juvenile was apprehended by police officers in the company of three adult males and another juvenile in a vacant house on March 24, 1974. Thereafter, a petition was filed in her interest alleging her to be a delinquent juvenile because she had violated her probation by running away from home and being ungovernable. The juvenile was again adjudged a proper person for commitment to the Department of Corrections. Sentence was again suspended and she was continued on probation. Through the efforts of the Jefferson Parish Juvenile Probation Department the juvenile was being treated at Touro Mental Health Center and West Jefferson Mental Health Center. The juvenle was placed in Raintree House on May 29, 1974 where she remained until she ran away on July 25, 1974. She was then permitted to stay at Greenhouse from which she was released after several curfew violations. A third petition was filed in the interest of the juvenile charging her with being a delinquent juvenile by having committed violations of the conditions of her probation. Upon adjudication she was committed to the custody of the Department of Corrections.

Through counsel, Tina Marie filed a motion in the Juvenile Court for release from custody. She contended that her confinement under LSA-R.S. 13:1569, subd. 15(b), (c), and (d) and LSA-R.S. 13:1570, subd. A(3) is illegal and in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States in that the said statutes are unconstitutional. The Juvenile Court held the statutes constitutional and denied the motion. The juvenile appeals.

During oral argument, appellant’s counsel stated to the court that the juvenile is no longer in the custody of the Louisiana Department of Corrections. Counsel informed the Court that the juvenile had been paroled into the custody of St. Elizabeth’s Children’s Home. Therefore, the juvenile is now under the supervision and control of the Louisiana Health and Human Resources Administration, Division of Youth Services.

The motion for release is akin to a habeas corpus proceeding. It seeks to obtain the release of the juvenile from the custody of the Department of Corrections. It would serve no useful purpose for this Court to determine whether the statutes are unconstitutional, for any decree which this Court would render, if we were to find merit in the juvenile’s contentions, would be unenforceable. This Court will not render judgments which cannot be made effective nor give opinions on moot questions from which no practical results can follow.

Having decided that the issue of the release of the juvenile from the custody of the Department of Corrections is moot, it is not necessary for us to consider whether the Juvenile Court was correct in denying the motion for release. The appeal is dismissed at appellant’s costs.

Dismissed.

REDMANN, J., dissents from dismissal and would affirm for the Trial Judge’s reasons.


author: SCHOTT, Judge.

text:
    Robert TAILLAC v. WESTMINSTER CORPORATION et al.
    No. 7000.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Writ Refused Dec. 17, 1975.
    Garland R. Rolling, Metairie, for plaintiff-appellant.
    Drury, Lozes & Curry, James H. Drury and Madison C. Moseley, New Orleans, for defendant-appellee American Employers Lis. Co.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a summary judgment dismissing his claim against American Employers Insurance Company, one of a number of defendants. He claims damages for injuries sustained in an accident which occurred on July 23, 1973, while he was engaged in making repairs to electrical equipment located in a building in New Orleans.

Defendant had issued its policy of liability insurance to Tishman Construction of Louisiana, Inc. for the period February 26, 1971, to February 26, 1972. Tishman had constructed and completed the building some time prior to the date of plaintiff’s accident.

The policy contains the following definition :

“ ‘Occurrence’ means an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected or intended from the standpoint of the insured;” (emphasis ours)

Under the policy’s schedule of hazards covered “Completed Operations” is specifically “Excluded.”

Plaintiff attempts to avoid the effect of Oceanonics, Inc. v. Petroleum Distributing Company, 292 So.2d 190 (La., 1974), aff’g 280 So.2d 874 (La.App.2nd Cir. 1973), but we find the cited case to be controlling and dispositive of his appeal.

The judgment is affirmed.


author: SAMUEL, Judge. BEER, Judge

text:
    Martial H. VOITIER v. James C. FARRELLY, Individually and as natural tutor of the minor, Wendy M. Farrelly.
    No. 6920.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.

      Porteous, Toledano, Hainkel & Johnson, Goeffrey H. Longenecker, New Orleans, for plaintiff-appellee.
    Dufour, Levy, Marx, Lucas & Osborne, Patrick Rankin, New Orleans, for defendants-appellants.
    Before SAMUEL, BOUTALL and BEER, JJ.
   SAMUEL, Judge.

This is a suit for property damage, temporary car rental, depreciation, and inconvenience resulting from an automobile collision. Martial H. Voitier is the only plaintiff in the original petition, but by supplemental petition Action Towing and Rental, Inc. also was made a plaintiff. The two petitions prayed for judgment in the amount of $20,200.43. However, on the morning of trial plaintiffs orally amended the petitions so as to include additional, newly discovered damage in the amount of $5,211.92.

Following trial on the merits, judgment was rendered in favor of plaintiffs in the sum of $9,170.34, itemized in the Reasons for Judgment as $1,908.83 for originally claimed damage, $4,749.77 for the newly discovered damage, and $2,511.74 for car rental. Defendant has appealed. In this court he concedes liability and the correctness of the $1,908.83 item for originally claimed damage. His appeal is directed to causation and quantum as to the other two items. He contends plaintiffs failed to prove a causal connection between the accident and the newly discovered damage and failed to mitigate the car rental damage.

The accident occurred on the morning of March 5, 1974 when the corporation’s Bentley, parked in front of Voitier’s home, was struck by a Volkswagen owned by the defendant and driven by the latter’s minor daughter. The front of the Volkswagen collided with the front of the Bentley. The accident occurred when the Volkswagen driver attempted to open a vent window to get rid of a bee in her car.

Voitier testified that as president of the plaintiff corporation he needs an impressive automobile to entertain important clients at theatres and restaurants. In 1973 the corporation purchased the 1956 Bentley for $6,500 and spent approximately $1,800 making various repairs and adding air conditioning. Prior to the accident the body, exterior and interior were in good condition and the engine and running gear were in excellent condition. According to Voitier, the collision knocked the Bentley thirty-seven feet to the south in front of his neighbor’s home with the Volkswagen stuck in its grill. However, Mrs. Farrelly, wife of the defendant and mother of the driver of the Volkswagen, testified that when she arrived on the scene five minutes after the accident the Bentley was still in front of Voitier’s home and the Volkswagen was about two feet away from the Bentley. Wendy Farrelly, the Volkswagen driver, did not remember whether the Bentley moved after it was struck.

On the day of the accident, Voitier had the car towed to Durham Motors, specialists in the repair of foreign automobiles. Durham informed him it would take six to nine months to get the necessary parts. Voitier did not order the parts but discussed the repairs with Eric Halverson, an adjuster for defendant’s insurer. Upon learning the parts would not be available for six to nine months, Halverson offered to secure them himself. Halverson was unable to locate the parts despite the fact he made serious efforts to do so throughout the United States. Relying on Halver-son, Voitier did not order the parts from Durham.

Because of the need for a replacement vehicle while the Bentley was out of service, Voitier discussed a rental vehicle with Halverson. After rejecting proposals of smaller automobiles, which Voitier felt were incompatible with his company’s needs, the insurer agreed to permit him to rent a Cadillac at a cost of $22 per day. Sometime later, when Halverson admitted he was unable to secure parts, he discussed settlement. The insurer proposed payment of the repairs as per the originally claimed damage and offered $500 toward the car rental (which then amounted to over $1,300). Voitier rejected this offer and consulted an attorney. He then took the car to a mechanic who made temporary front end body and fender repairs while plaintiff was awaiting a settlement so that he could order and pay for new parts for permanent repairs. The car was repaired only to a limited extent because of the lack of parts. Plaintiff was charged $500 for these repairs.

Shortly after the accident had occurred, Voitier was contacted by David Kaufman, a local specialist in the field of Bentley automobiles, who had used parts. Kaufman was interested in buying the Bentley and offered $3,000, which he considered was the wholesale price of the automobile. Kaufman later testified he was of the opinion the retail value of the car in its damaged condition was $7,500 to $8,000 and because he had the parts he could have fixed it himself and sold it at a profit. Voitier did not choose to sell the car, nor did he inform Halverson that Kaufman had used parts available.

After the temporary repairs were made, the Bentley was driven approximately 2,000 miles. When Voitier began using the car after the accident in suit, he noticed a small amount of vibration. He testified that prior to the accident there had been no vibration. He attributed the vibration to the fact that the car had been “laid up awhile”, and this item was not included in the original damage estimate. However, the vibration got progressively worse to the point where it became excessive. On the day of trial, Thomas Helm, a Durham mechanic, examined the car relative to the vibration problem. Kaufman also drove the car on that day in an effort to determine the cause of the vibration. It is clear that, in addition to the original damage claimed, at the time of trial the vehicle had a serious vibration problem and a bent propeller shaft. This vibration and bent shaft are the damages constituting the oral amendment to the petitions, the awarded item we have referred to as newly discovered damage.

Testimony pertinent to appellant’s first contention relative to causal connection between the accident and the newly discovered damage was given on behalf of plaintiffs by Voitier himself and by Thomas Helm, the Durham mechanic, and on behalf of the defendant by David Kaufman. Both Helm and Kaufman qualified as experts on Rolls Royce and Bentley automobiles (the two vehicles are manfactured in England by the Rolls Royce Company). That portion of Voitier’s testimony which is concerned with this contention is set out in the preceding paragraph.

Helm, 25 years of age, has been employed as a mechanic by Durham for three years and has had special training at the Rolls Royce Training School at Paramus, New Jersey for twelve days and at their school in Dallas, Texas for four days. During the past three years he has repaired many Bentleys. He was of the opinion the vibration now evident in the Bentley is due to damage to the spring drive assembly and a bent propeller shaft, both of which he attributed to the collision with the Volkswagen. He estimated the total repair cost of this damage was $4,749.77, itemized as follows: spring drive assembly $3,398.94, labor $225; new propeller shaft $813.88, labor $37.50; total tax 268.85.

Kaufman has been involved with automobiles since he was fourteen years old, disassembling them to the bare chassis and “doing everything” to restore the cars. Since 1960 he has specialized in the restoration and sale of Bentley and Rolls Royce automobiles for his own company, making twice yearly trips to Europe to purchase these vehicles and returning with them to the United States where they are restored and resold. He has done all phases of the disassembling and restoring himself, but it is now done by his employees under his supervision.

Kaufman conceded it was difficult to determine the cause of the vibration by simply driving the car and by the visual inspection he had made (he did not inspect the undercarriage). He was of the opinion that if the car was put up on a rack and the transmission engaged so that the propeller shaft was rotating, it would most likely indicate the problem was with the universal joint, the harmonic balance wheel, or an out-of-balance propeller shaft. However, Kaufman was of the firm opinion the bent propeller shaft could not have been caused by the collision with the Volkswagen; the shaft could be bent only by driving the car over and striking a curb or by driving it over and striking a rock or some other obstacle in its path. In all Kaufman’s experience he has never seen a bent propeller shaft in a Rolls Royce or Bentley.

We agree with Kaufman on the question of the bent propeller shaft. When the young Volkswagen driver attempted to get rid of the bee in her car, she was only a short distance from the Bentley and traveling between 20 and 25 miles per hour. While leaning over to open the vent window, she took her foot off the accelerator and applied the brakes. The collision resulted in minor damage to the front of the Volkswagen, which was able to drive off under its own power. The only visual damage to the Bentley was to the front end, such as bumper brackets, license plate holder, gravel shields, front electric Lucas horns and fog lamps, front grill frame and assembly, and left front fender; neither the engine nor its mounts were damaged in any way. Under these circumstances we must and do agree with Kaufman’s testimony, that it was impossible for the collision in suit to bend such a heavy, strong part as the Bentley propeller shaft. Accordingly, we disallow the claim relative to the bent shaft and reduce the judgment by the sum of $902.46, the amount of the Helm estimate of the cost of a new shaft, the labor involved in replacing the shaft, and the 6% tax thereon.

We are of the further opinion plaintiff has proved the damage to the spring drive assembly was caused by the accident. There is no contradiction of the fact that the collision could have caused that damage and, as we read the record, the damage to the spring drive assembly alone was sufficient to cause the excessive vibration.

Relative to appellant’s second contention regarding plaintiffs’ alleged failure to mitigate the car rental damage, our settled jurisprudence is that the owner of an automobile damaged by a tort feasor may rent another car necessary for his business while his damaged automobile is being repaired, and may recover the amount paid for the rental of the substitute vehicle. It is also settled that such an owner is required to mitigate damages by having the repairs 'made promptly. Failure to minimize is not a complete bar to recovery of the rentals; such failure affects only the amount recoverable; and in determining the reasonableness of the time needed to make the repairs the uncontrollable delay of the repairman in securing the parts necessary to complete the work should be considered.

In the instant case appellant contends the Bentley could have been repaired by Durham within ten days after receipt of the necessary parts, which could have been obtained from Kaufman, and Voitier should have informed the insurer when he discovered Kaufman had available parts. Thus, they claim the vehicle could have been repaired within approximately three weeks after the accident and the award for car rental should be reduced accordingly. We do not agree.

The obtaining of new parts was a serious problem, not comparable to the simple matter of obtaining parts for a relatively new automobile manufactured in this country. And while it is true Kaufman did tell Voitier he had the part's needed to repair the Bentley, these were used parts and it is clear Kaufman was interested in buying the damaged vehicle to repair it for his own account. The record does not show he offered to sell the necessary parts, that he was interested in making such a sale, or even that he would have sold the parts if requested to do so.

The Cadillac was rented by Voitier some five or six days after the accident and following the insurer’s acquiescence in that rental. Very shortly after the negotiations with the insurer came to an end, Voitier took the Bentley to his mechanic for the temporary repairs, which took ten days to complete, and returned the rented vehicle. He used another, nonrented vehicle while the temporary repairs were being made and he used the Bentley after those repairs had been made. In all the Cadillac was rented for something less than four months. We agree with the trial judge who concluded this length of time was not unreasonable under all of the circumstances.

For the reasons assigned, the. judgment appealed from is amended so as to reduce the amount awarded from the sum of $9,170.34 to the sum of $8,267.88. As thus amended, and in all other respects, the judgment appealed from is affirmed. Costs of this appeal are to be paid by the plaintiffs-appellees.

Amended and affirmed.

BEER, Judge

(concurring in part, dissenting in part).

I respectfully dissent from that portion of the majority opinion dealing with the alleged damage to the spring drive assembly.

The total award for this alleged item of damages is:

1. Spring drive assembly $3,398.94
2. Labor 225.00
$3,623.94
3. Tax at 6% of the above 217.44
TOTAL $3,841.38

Although I agree with the balance of the majority opinion and concur in it with respect to all other findings, I do not feel that this particular item of damages was sufficiently proven even though no clear contravening evidence was produced by the defendant. The alleged discovery of the need for this remarkably expensive item of repair was the result of only the most superficial and, at least in my opinion, unsatisfactory investigation.

Mr. Thomas Helm was the only witness to give any evidence with respect to this item of damages. He says that there was a possibility that the accident could have caused trouble with the spring drive assembly. At first he was unable to say whether the vibration problem predated the accident but then changed his testimony on this point. However, the most compelling indication of the cavalier manner in which he conducted his so-called examination was the clear showing that he never made even a visual inspection of the actual parts'that he described as damaged and had only superficially examined the car itself when it was in. the body shop of Durham Motors for body work. The fact that he makes this expensive estimate based on virtually no investigation causes me to reject his testimony on this issue and to conclude that the record is barren with respect to 'any proof of this item of damages.

I agree with the majority’s rejection of plaintiff’s claim relative to the propeller shaft (about which, incidentally, Mr. Helm also testified, stating, quite categorically, that it was an item of damages attributable to the accident).

Accordingly, I respectfully dissent from that portion of the judgment which holds that there was adequate proof of a causal connection between the accident and the so-called newly discovered damage to the spring drive assembly. I believe there was a failure of proof both with respect to causal connection and the actual damage incurred. I would reduce the judgment to $4,426.50.

      . In this country the part is referred to as a drive shaft.

        . Goode v. Hantz, 209 La. 821, 25 So.2d 604; Desselle v. Wilson, La.App., 200 So.2d 693; Vance v. Hinton, La.App., 200 So.2d 341; Plotkin v. Martino, La.App., 192 So.2d 381; National Motor Club of La., Inc. v. American Indem. Co., La.App., 170 So.2d 729; Cook v. Southern Farm Bureau Cas. Ins. Co., La.App., 124 So.2d 183; Moore v. Shreveport Transit Co., La.App., 115 So.2d 218; 8 Am.Jur.2d “Automobiles and Highway Traffic” § 1047; see also 6 Blashfield Cyclopedia of Automobile Law and Practice, § 3417 and cases cited therein.

      . National Motor Club of La., Inc. v. American Indem. Co., supra, footnote 2; Baremore v. Southern Farm Bureau Casualty & Ins. Company, La.App., 147 So.2d 58; Alderman v. Henderson, La.App., 130 So.2d 157.

      . Desselle v. Wilson, supra, footnote 2; Baremore v. Southern Farm Bureau Casualty & Ins. Co., supra, footnote 3; Alderman v. Henderson, supra, footnote 3.


text:
    Rose PHILLIPS and Ruby McKinney v. James J. BARRAZA et al.
    No. 6883.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Writs Refused Dec. 19, 1975.
    Patrick E. Jones, Bartholomew & Jones, Metairie, for Mrs. Rose Phillips, plaintiff-appellant.
    Charles A. Boggs, New Orleans, for United States Fidelity & Guaranty Co., defendant-appellee ; Montgomery, Barnett, Brown & Read, New Orleans, of counsel.
    Craig R. Nelson, Hammett, Leake, Hammett, Hayne & Hulse, New Orleans, for Government Employees Ins. Co., defendants-appellees.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is an appeal by Mrs. Rose Phillips from summary judgments dismissing her suit against United States Fidelity & Guaranty Company and Government Employees Insurance Company, based upon uninsured motorists coverage provided in their insurance policies. ' There is no dispute as to the facts.

The parties to this appeal agree that on February 21, 1973 the vehicle in which Mrs. Phillips was riding was rear-ended by a vehicle owned and operated by James J. Barraza, and that the collision was solely caused by his negligence. Barraza was insured by a liability policy issued by Empire Fire & Marine Insurance Company containing limits of liability of $5,000 each person and $10,000 each accident. The vehicle in which appellant Rose Phillips was riding was owned by her and driven by Mrs. Ruby McKinney. Mrs. Phillips had a policy with United States Fidelity & Guaranty Insurance Company covering this vehicle with uninsured motorists coverage to the extent of $5,000 per person and $10,000 per accident. The driver, Mrs. McKinney held a policy with Government Employees Insurance Company providing similar uninsured motorist coverage to the extent of $5,000 and $10,000.

Plaintiff contends that the two uninsured motorist policies of her driver and herself should be added together or “stacked” in order to afford her coverage in a total sum of $10,000. Since this coverage exceeds the $5,000 liability coverage of the other vehicle, that vehicle is an “uninsured motor vehicle” under the definition contained in LSA-R.S. 22:1406, subd. D(2)(b). That subsection reads as follows:

“(b) For the purposes of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by an insured.”

Defendant contends that the two policies may not be added together or stacked, that each policy is for $5,000, that the meaning of the term “uninsured motorist coverage carried by an insured” is simply that the injured person must herself be the holder or owner of the policies to meet the generally accepted definition of insurance “carried” by an insured.

First, we note that the applicable law is as quoted above, having been placed in the uninsured motorist law by Act No. 137 of 1972, effective January 1, 1973. (The accident was Feb. 21, 1973.) The above definition has been changed by Act No. 154 of 1974 so that unquestionably coverage would be afforded in this case. We believe that coverage is also afforded under the 1972 amendment.

The basic answer to the dispute between these parties lies in the principle of “stacking”. LSA-R.S. 22:1406, subd. D(l)(a) as reenacted in 1972 states as follows:

“D. (l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.”

Since the recent cases of Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 85, 259 So.2d 22 (1972), and Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972), the Louisiana Supreme Court has held that the limiting clauses in insurance policies relative to the application of other insurance as excess insurance or in a pro-rata fashion are unenforceable in a situation where, as here, the damages claimed exceed the total sum of the policies. The rationale of those cases is to require the recognition that each policy with applicable coverage must itself provide the minimum coverage of $5,000 required by the law. Thus in each case, although the policy situation may differ to some degree from the policy situation here, the court permitted the stacking of the policies such that the recoverable amount is the total sum of the policies added together rather than simply the $5,000 coverage provided in any one, or a pro-rata share not in excess of $5,000. The appellate courts have followed the principles of these cases, notably our brethren of the Third Circuit in the cases of Rascoe v. Wilburn, 295 So.2d 201 (La.App. 3rd Cir. 1974); Roberie v. State Farm Mutual Automobile Insurance Company, 291 So.2d 923 (La.App. 3rd Cir. 1974); Crenwelge v. State Farm Mutual Automobile Insurance Company, 277 So.2d 155 (La.App. 3rd Cir. 1973); Robinson v. Allstate Insurance Company, 267 So.2d 257 (La.App. 3rd Cir. 1972).

In the case of Barbin v. United States Fidelity and Guaranty Company, La., 315 So.2d 754 (1975) the Supreme Court had the occasion to reconsider the cases of Graham and Deane, supra, in the light of the enactment of the 1972 amendments. The court reaffirmed the principles announced in Graham and Deane and permitted the stacking of two separate policies issued to the owner of two vehicles (one of which was involved in the collision) so that the additional coverage was extended not only to the vehicle owner, but also to the passengers.

In the case before us we have two policies which afford coverage to plaintiff as occupant of the subject vehicle: One issued to plaintiff affording coverage as named insured and as passenger in her own named vehicle; the other issued to the driver of that vehicle covering passengers in a non-owned automobile. In each policy a specific premium charge was made for this uninsured motorist coverage. Clearly plaintiff-passenger is entitled to stack the coverages and thus coverage amounts to $10,000.

The case before us poses another question one step beyond the issue of stacking; that is, does the stacking of these two policies satisfy the requirements of the definition of uninsured motor vehicle. As we see it, the solution reached depends upon the method of approach to the problem. If one considers the meaning of the terms “uninsured motorist coverage carried by an insured" to mean only “policies owned by the victim”, then it must be conceded that no stacking is permissible and the definition is not met. On the other hand, if one considers first that stacking is permissible under the law (and indeed it is required under theory of the cited cases) then the terms “uninsured motorist coverage carried by an insured” do not have to be transposed into other terms and the requirements are satisfied. The comparison required is between coverage and coverage, not policy and policy, and this coverage is “carried by an insured” in the sense that it is bought and paid for by a policy holder for the benefit of himself and others insured thereunder. We refer to the case of Rascoe v. Wilburn, 295 So.2d 201 (La.App. 3rd Cir. 1974) for a similar interpretation that these terms mean “total uninsured motorist coverage properly available to the insured tort victim”. It is only this construction of Subparagraph (2)(b) that is consistent with the requirement of Subpar-agraph (l)(a) to provide coverage in not less than the minimum limits “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of * * * underinsured vehicles.” To hold otherwise would be to reduce the required minimum coverage in each policy which the law requires, contrary to the principles established in the cases of Graham, Deane and Barbin, supra. We conclude that stacking is permitted under the factual situation here in order to meet the statutory requirement that the uninsured motorist coverage of the tort victim be in excess of the liability coverage of the tort feasor’s vehicle.

Accordingly, we are of the opinion that the trial judge erred in granting the motions for summary judgment, dismissing the two insurors from the plaintiff’s suit. Therefore, it is ordered, adjudged and decreed that the summary judgments appealed from in favor of United States Fidelity & Guaranty Company and Government Employees Insurance Company are now annulled and reversed, and there is judgment herein dismissing the motion for summary judgment of each defendant-ap-pellee. The assessment of costs shall await the final outcome of the case, and this case is remanded to the trial court for such further proceedings as may be proper herein.

Reversed and remanded.


author: STOULIG, Judge. SCHOTT, Judge,

text:
    DENNIS MILLER PEST CONTROLS, INC. v. Mrs. Germaine WELLS, d/b/a Arnaud’s Restaurant.
    No. 6735.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearings Denied Nov. 11, 1975.
    Writ Refused Jan. 7, 1976.

      Richard K. Dimitry, Stephen C. Hartel, Jr., New Orleans, for plaintiff-appellee.
    George J. Kambur, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN, STOU-LIG, SCHOTT and MORIAL, JJ.
   STOULIG, Judge.

Plaintiff, Dennis Miller Pest Controls, Inc., obtained a judgment of $801, representing the balance due on a written contract for pest control service, plus 25-per-cent attorney fees on the award, against Arnaud’s, Inc. Defendant has appealed urging, as it did in the trial court, that Karl Fuller, who allegedly signed as defendant’s agent, had no authority to contract for defendant.

The agreement, dated March 19, 1973, stipulates plaintiff would provide extermination service on a monthly basis for a one-year period to three pieces of property owned either by defendant or its president, Mrs. Germaine Wells, for $89 per month. Signed by Fuller and plaintiff’s president, Dennis Miller, the contract stated the property owner’s refusal either to pay for or accept proffered services would constitute a breach and accelerate the balance of the payments due.

Plaintiff serviced the three buildings for several months and was paid each time the job was finished. Thereafter Mrs. Wells, without assigning a reason, refused to accept further service. What is at issue is the nature of the March 19 agreement and the capacity in which Fuller acted in connection with its execution. Plaintiff contends Mrs. Wells gave Fuller a verbal mandate to sign a contract binding defendant to accepting monthly service for a one-year term, while defendant insists either party could terminate the agreement at any time.

Dennis Miller testified that in response to a call from soneone connected with defendant he visited Mrs. Wells in her apartment on March 19, 1973 and discussed the terms of the disputed agreement in Fuller’s presence. He informed Mrs. Wells this agreement would be the same as a prior arrangement under which plaintiff had provided extermination service for the three buildings. After Miller distributed mice poison in the apartment, he asked Mrs. Wells to execute the contract and she told him Fuller would sign it. Fuller signed the contract and also a receipt indicating the extermination work had been completed.

Mrs. Wells repudiated Miller’s statement by denying ever meeting him much less discussing a contract with him or giving a verbal mandate in his presence. The trial judge resolved the credibility issue against her because Fuller, her steward, confirmed Miller’s meeting with Mrs. Wells in her apartment. In fact, he testified he escorted Miller to the apartment.

However, Fuller stated he did not hear Mrs. Wells tell Miller that he was to sign the contract on her behalf. In fact Fuller insisted he had no authority whatsoever to enter into a contract. It is apparent from his testimony he does not understand the meaning of the term “contract”; therefore his testimony must be carefully weighed to determine the scope of the authority that Mrs. Wells conferred on him as her agent. He was questioned repeatedly as to what he had signed to determine if he was simply receipting for service performed on that day or if he was signing for plaintiff’s service for an extended period of time on a monthly basis. His testimony was somewhat confusing and at one point the court asked: “What did you think you were signing ?” He answered: “I thought I was signing a little paper for him to come in and do the pest control every month.”

In summary we accept the trial court’s credibility finding that a contract was negotiated between Miller and Mrs. Wells and that she had given Fuller a verbal mandate to sign for her.

The evidence discloses that on March 19, 1973, Fuller executed two documents: the contract at issue, and an acknowledgment of the pest control service rendered by plaintiff. He admitted that one of the documents was a written authorization for plaintiff to perform extermination service in the future, i. e. a contract. If, as Fuller testified, Mrs. Wells did not authorize him to sign these documents and further that he never signed anything for the defendant unless expressly authorized to do so in each and every instance, he failed to state by whose authority he acted in this matter in signing these documents.

Defendant argues that if the testimony to this effect is accepted, the record still fails to support the agency by competent evidence. It correctly points out that C.C. art. 2992 (which permits a verbal mandate) stipulates the proof of the agency must conform to rules set forth in the Civil Code section “Of Conventional Obligations”.

The only article dealing with testimonial proof of contracts is C.C. art. 2277 that provides, inter alia, verbal contracts for the payment of money in excess of $500 must be established by the testimony of one credible witness and other corroborating circumstances. In Gardes v. Schroeder & Schreiber, 17 La.Ann. 142 (1865), the Supreme Court held that a verbal power of attorney conferred for executing a contract in excess of $500 must be established by the same evidence as would be required for a verbal contract in excess of that amount.

While we agree with defendant’s position that plaintiff must establish the verbal power of attorney by the testimony of one credible witness and other corroborating circumstances, we cannot conclude it did not sustain its burden of proof. The credible witness is Miller and the corroborating circumstance is the testimony of Fuller to the effect that he was signing a paper to let plaintiff come in every month to do pest control work and that he never signed for anything for defendant without specific authorization. The corroborating circumstances contemplated by C.C. art. 2277 can be the testimony of a second witness. We therefore conclude that Fuller was acting as the agent of the defendant in executing the pest control contract.

Though not raised as an issue in either the briefs or oral arguments of counsel, the dissenting opinion, while acknowledging that the defendant did breach the pest control agreement, suggests the trial court erred in awarding plaintiff the penalties and attorney fees stipulated in the written contract. Such a result can only obtain upon a finding that defendant had no knowledge of the liquidated damage clause and that the agent exceeded his authority in signing the contract with such provisions, or that the amount of the stipulated damages are so exorbitant as to be unconscionable and will not, for equitable consideration, be invoked. In effect the dissenting opinion while admitting the breach would permit the defendant to do so with total impunity.

A resolution of this issue requires a reiteration of the established law, jurisprudential and statutory, governing the right of persons to contract. In general, parties may contract under such terms and conditions, not in contravention of statutory law or contrary to public policy, as may be mutually agreed upon. Such agreements have the effect of law between the parties governing its subject matter and cannot be repudiated for economic or imprudent reasons. McNeely v. Baron Construction Co., 261 So.2d 333 (La.App. 4th Cir. 1972); C.C. art. 1945. Penal clauses (liquidated damages and attorney fees) are the proper subject matter of contractual agreement. C.C. art. 2117 et seq. Unequal or unilateral contingent penalties imposed for the breach of contract are not contrary to public policy, prohibited by law, or void for the want of mutuality. Wendel v. Dixon Real Estate Company, 232 So.2d 791 (La.App. 4th Cir. 1970); C. C. art. 2122. Though a contract be silent on the assessment of liquidated damages against one of the contracting parties, the opposite party is not precluded from recovering such damages as are authorized by the Civil Code and which are occasioned by the former’s breach of the agreement.

To dispose of the issue of the enforceability of the penal clauses we must determine if defendant had, or is charged with, the knowledge of the penal provisions, if the agent exceeded his authority and if the stipulated amount is unreasonable.

At the outset it should be noted the testimony of the president of plaintiff corporation — that he offered a copy of the contract to Mrs. Wells for her acceptance and signature and was advised by her that Fuller would sign it — was accepted by the trial judge and was a credibility determination. Thus the opportunity afforded Mrs. Wells to learn the full details of the contract and her mandate to Fuller to sign on her behalf were so concomitant and contemporaneous that they will be treated together.

C.C. art. 2995 differentiates between a restricted as opposed to an unlimited power of attorney. It states:

“It may vest an indefinite power to do whatever may appear conducive to the interest of the principal, or it may restrict the power given to the doing of what is specified in the procuration.”

In this case Mrs. Wells gave her steward Fuller unlimited discretion in signing the contract and approving any terms contained in it when she declined Miller’s offer to view it and indicated Fuller would sign for her. Thus, even though the record contains no evidence that she specifically agreed to the acceleration clause or the attorney fees in the event of a breach, her conferring on Fuller the power to act in her behalf without limitation in this transaction binds her to the terms of the contract signed by her agent. Defendant cannot now be heard to deny that she had knowledge of, or consented to, the penalty provision and attorney fees any more than she could have asseretd such a defense if she had signed the contract without reading it.

Under the penalty provisions of the contract, plaintiff is given the option to accelerate all unpaid amounts due for the remainder of the contract year dating from the occurrence of the breach together with reasonable attorney fees. The liquidated damages are only the balance of the proceeds due under the contract, an amount defendant had initially obligated itself to pay for plaintiff’s service, the performance of which it prevented by the breach. It cannot validly be maintained that plaintiff is only entitled to the loss of the profit it would have derived from the contract had it not been breached in view of the mutually agreed upon provisions stipulating the amount to be awarded in the event of such an occurrence. Nor can it be said that the stipulated amount is so unreasonable and out of proportion to the total consideration of the contract that its enforcement would be unconscionable.

For the reasons assigned, the judgment appealed from is affirmed. Defendant Ar-naud’s, Inc., is to pay all cost of this litigation.

Affirmed and rendered.

SCHOTT, Judge,

with whom REDMANN, Judge, joins, dissenting.

The contract between plaintiff and defendant for pest control service is titled, in large bold-face capitals, “PEST CONTROL SERVICE ORDER.” It contains the following:

“In consideration for the services to be rendered by the Contractor, Owner shall pay Contractor $1,078.00 per annum, payable $89.00 when the first treatment is applied and $89.00 per month on the first of each month thereafter during all times that this contract is in effect. * * *
“Failure or refusal of the owner to allow the Contractor access to the aforesaid premises or failure to make any payment when due shall constitute a breach hereof and, at the option of the Contractor and without the necessity of tendering further services, shall accelerate maturity of all amounts then remaining due and unpaid for the contract year then running.
“Should it become necessary for the Contractor to consult or engage counsel to protect, or enforce any of Contractor’s rights hereunder, Owner agrees to pay the fees of the attorney engaged for such purposes which are hereby fixed at $25.00 or 25% of the amount due whichever is the greater.”

Plaintiff had performed and was paid under the contract for three months, so that the trial judge awarded plaintiff nine months at $89 per month together with 25% as attorney’s fees in accordance with the contract. Assuming that authority to sign a “Pest Control Service Order” was authority to sign a service contract for a long term, there is no question but that defendant breached the contract and is liable to plaintiff in damages, but the issue is then whether plaintiff is entitled as a matter of law to recover the amount he was awarded by the trial court.

In the first place, pretermitting the question of whether such penal clause is enforceable under the circumstances the burden of proof was on plaintiff to show that Mrs. Wells had entered into a valid contract obligating herself to the penal clause when she told plaintiff’s representative that her restaurant’s steward would sign the contract. In order to answer this question I would completely disregard the testimony of Mrs. Wells and the steward since the trial judge apparently assigned no credibility to their testimony whatsoever. Taking the testimony of plaintiff’s representative, Dennis Miller, as true we have only the following:

A. “. . . When I finished putting out the stuff I told Mrs. Wells, I said, ‘Mrs. Wells, I have a contract to be signed, would you sign it’ and she said, ‘no, Mr. Stewart will sign it’ so when I finished we went on down—
jfc if. * sjc * s|<
Q. “He signed the contract that you have?
A. “And he signed the service ticket also, both of them.”
******
THE COURT:
“How did it happen that these premises were included?”
A. “The reason the premises were included because that is the way it was serviced before years back, it has always been serviced with these buildings.
BY MR. DIMITRY:
Q. “Was there any mention made of this at the time of your dealings with Mrs. Wells on March 19th, 1973 ? ”
* * * * * *,
A. “All I did was I told her I would write the same contract, put it the same way.”
THE COURT:
“You did mention the contract? ”
A. “I did mention the contract, I had the contract and I said it is going to be the same way and she said yes.”
Q. “And Mr. Fuller signed the document which you identified as Plaintiff Exhibit I?”
A. “He signed two documents that day, yes.”
Q. “And you also signed the contract that day ? ”
A. “Yes.”
******
BY MR. KAMBUR:
Q. “Mr. Miller, as I understand it now you did not mention ‘contract,’ to Mrs. Wells but you told her it was going to be the same way ? ”
A. “No, that is not true, I was talking about it and I showed it to her, the contract and I said ‘Mrs. Wells do you want to sign the contract ?’
And she said no, Mr. Fuller will sign it.”
Q. “Didn’t you say when you told me you didn’t mention the contract that you had the contract in your hand and you waved your hand around?”
THE COURT:
“There wasn’t any meaning in his waving his around.”
MR. KAMBUR:
“He just did it with his hand. What did you mean when you said “I didn’t mention the contract’ just a few minutes ago ?”
A. “The service will be the same as it was before.”
Q. “You didn’t mention the word ‘contract’ ? ”
THE COURT:
“He said he had a contract. I am not going to permit you to badger the witness, I think he testified clearly and all you’re doing now is confusing him.”
“The Court understands that after taking the testimony of the witness that during the discussions the contract was not mentioned at the time he was in the presence of Mrs. Wells but that he had a contract which he told her was the same as the previous contract and this is the document that he had when he was in the apartment of Mrs. Wells, that is my impression.”
A. “Let me say this, what I said when I came in, she said, T was having a lot of trouble with some mice and I want you to take over the business again, to do the service again for me.’ And I said all right, it will be the same and that’s what I was talking about, I didn’t mention ‘contract,’ then but when I finished I went to put the mice poison out and so forth and I told her — ”
BY MR. KAMBUR:
Q. “You went back into her apartment ? ”
A. “It was all done in her apartment, nothing was done in the restaurant at that time, she was still there and I said “Mrs. Wells, do you want to sign this contract, I said I have a contract here, do you want to sign it and she said “No, Mr. Fuller will take care of it.” ’ I don’t know if she said he will take care of it or — ”

Plaintiff failed to offer the previous contract in evidence and there is no showing in the record that the penal clause in the previous contract was the same as the one which was sued on.

In effect, plaintiff’s suit is based upon a mandate from Mrs. Wells to the steward which must be evaluated in the light of LSA-C.C. Art. 2997 to the effect that a power of attorney to sell or to buy must be express and special. To the extent that the steward’s mandate was to order pest control services from plaintiff the evidence shows that it was sufficient, but there is no evidence to show that the mandate encompassed liability for the penal provisions of the contract.

The case of Sumner v. Knighten, 1 So.2d 142 (La.App. 2nd Cir. 1941) is pertinent. The Court said:

“A fundamental principle of law of this state is that the authority of an agent to execute notes or other commercial paper on behalf of his principal must be express and special. Civil Code, Article 2997 [citations omitted]. It has been held, however, that the granting of such authority is implied when the main object of the agency requires the exercising of that power.”

There the Court considered whether the general manager of a mercantile store who was empowered to do business with a bank under the mandate “to sign all contracts and checks” had the authority to obtain loans and execute notes for his employer, the defendant. The Court, in holding that this authority did not include such authority, did so with the recognition that the manager did have authority to enter into contracts arising in the usual course of the store’s operation.

The steward of defendant was not even the general manager and operated under no written mandate, like the one in the cited case. The penal clause of the contract which plaintiff seeks to enforce here is really in the nature of a note for $1078 payable in 12 installments. The same result should follow here as in the cited case.

Had plaintiff shown that defendant was aware of the provisions of the penal clause when she told the steward to sign the contract, either because she read the contract or because the previous contract she had entered into with plaintiff had contained the same provision, it might be argued that the penal clause was enforceable, but in my opinion the jurisprudence still indicates otherwise.

Under the terms of the contract, plaintiff obligated himself to perform pest control services over a 12 month period. He was to treat the premises to eradicate or prevent infestation on some regular basis and as needed. Surely he would incur some expense in the performance of his obligations and would earn the contract price with some built in profit had he been permitted to perform. I find no authority for the proposition that he is entitled to collect the full amount of his contract while at the same time he will perform no obligations for a full nine out of the twelve months that the contract was to have run.

In Tac Amusement Company v. Henry, 238 So.2d 398 (La.App. 4th Cir. 1970) this Court rejected a claim for liquidated damages saying that the proper measure of damages would be the loss of proceeds from a minimum performance plaintiff might have provided and that the liquidated damages were far in excess of hoped for profit from a voluntarily maximum performance. We held that the disproportion was so serious and great that it was in conflict with C.C. Art. 2164.

The amounts involved in the last cited case were extremely high' in comparison with the instant case, but the principle must remain the same. Plaintiff, because of defendant’s breach, was liberated from any and all further concern with obligations he had undertaken under this contract, and yet he would recover the same gross amount as he would have had he been obliged to perform. Under the circumstances I would hold that there is a serious disproportion and disallow such recovery.

In Federal Sign System (Electric) v. Leopold, 120 So. 898 (La.App. Orl. 1929) this Court was faced with a claim for liquidated damages of $14 per month for the term of the contract where the plaintiff agreed to supply an electric sign to defendant for $27.15 per week. In holding that plaintiff was entitled to recovery the Court observed:

“If he defaulted, he paid damages at the rate of $14 per month, or about 12 per cent, of the former rate, a fairly reasonable profit, considering the expense of installation.
“The greater the duration of use of sign, the less liquidated damages would be due.
“The case of Godwin v. Davidson et al. 163 La. 804, 112 So. 728, cited by appellant, is not in point. There the bond provided a penalty of $5,000 for its breach. The contract was almost completely performed. The damages were assessed or fixed in a lump sum, not so much for each day, week, or month, .or year. Since the contract was partially performed, the court properly held that plaintiff was not entitled to the entire $5,000, but would have to prove his damages.
“Here the amount defendant had to pay was commensurate with the period of his default, and it is certainly reasonable.”

Thus the Court considered reasonableness and arrived at the conclusion that plaintiff was entitled to recover in the cited case. In the instant case, not only is there no evidence to show that recovery of the full amount was reasonable but reasonableness dictates otherwise.

It has been stated that liquidated damages serve the purpose of fixing a sum certain for damages where they are difficult, if not impossible, to compute. In the instant case no attempt was made in the contract to relate the penal provisions with liquidated damages in the sense of a substitute for actual damages, but on the contrary they provided merely for full contract price on default. At the trial plaintiff offered no evidence to show actual loss of profit and there is no basis for awarding him any recovery under those circumstances. Therefore, I would reverse the judgment of the trial court and dismiss plaintiff’s case.

      . Several persons and business entities were cited as defendants; however, it was stipulated at the trial Arnaud’s, Inc., was the proper defendant. Plaintiff by supplemental petition sought in the alternative to hold Fuller individually liable should the court determine he was not acting as defendant’s agent. The judgment of the trial court did not dispose of the alternative pleading nor was issue joined either by answer or default. Plaintiff did not appeal this issue.

      . The contract provides in part:
      “Failure or refusal of the owner to allow the Contractor access to the aforesaid premises or failure to make any payment when due shall constitute a breach hereof and, at the option of the Contractor and without the necessity of tendering further service, shall accelerate maturity of all amounts then remaining due and unpaid for the contract year then running.”

      . See Comment, 23 Tul.L.Rev. 242, 244, dealing with “Construction of Powers of Attorney in Louisiana.”

      . Rogers v. Barton, 264 So.2d 715 (La.App. 1st Cir. 1972).


author: REDMANN, Judge. MORIAL, Judge

text:
    Augusta SUTTON v. Jeannette Laphand Sutton, wife of Augusta SUTTON.
    No. 6902.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearings Denied Nov. 11, 1975.

      Plauche F. Villere, Jr., New Orleans, for plaintiff-appellant.
    J. Robert Hoepffner, Richards & Hoepffner, New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   REDMANN, Judge.

Plaintiff appeals from the trial court’s refusal to cancel defendant’s judicial mortgage as against property plaintiff bought at a public partition sale conducted without notice to defendant. We affirm.

The sale was conducted to partition the former marital community of plaintiff and his ex-wife. Plaintiff ex-husband had granted a recorded conventional mortgage upon the specific community property during the marriage. The ex-wife, by being cast in judgment for her separate debt, allowed a judicial mortgage (C.C. 3321) to be created upon the judgment’s recordation, effective against her undivided half of the now simply co-owned, but formerly community property. But these two mortgage creditors were not made parties to the partition proceeding. The sale was made for substantially less than the amount owed on the conventional mortgage (although plaintiff ex-husband remains personally liable on that debt).

La. Acts 1896, No. 86 amended C.C. 1338 to provide in its last sentence:

“That in all judicial partitions, where a partition is made by licitation, the mortgages, liens and privileges existing against any one or more of the co-proprietors, shall be by order of Court transferred to the proceeds of sale in the hands of the Notary, and the rights of all creditors shall be reserved on the said proceeds of sale to be urged by them, either before the notary or before the court, as may be necessary, provided the holders of such mortgages, liens and privileges be made parties to such judicial partition.”

Because the defendant mortgagee was not made a party to the judicial partition, there is no authority for the transferring of defendant’s judicial mortgage claim to the proceeds and the mortgage therefore remains effective against the ex-wife's undivided half of the property. Mortgage is a real right, following the immovables subjected to it “into whatever hands they pass,” C.C. 3282 (presuming recordation, to affect third persons, C.C. 3342). The general rules for extinction of mortgage are provided by C.C. 3411. C.C. 1338 provides a special rule for declaring mortgage-holders deprived of their security. Since art. 1338 does thus affect property rights of the mortgagee, it must be strictly construed, and anyone claiming by its provision the extinction of a mortgage must show compliance with its proviso that the mortgagee be made a party to the judicial partition (to make certain that he know of the judicial sale and be able to bid to protect his interest).

Plaintiff’s argument that the property’s market value was less than the earlier-recorded conventional mortgage, and that therefore defendant has suffered no real loss, is in principle rejected by Quality Fin. Co. of Donaldsonville, Inc. v. Bourque, La.1975, 315 So.2d 656. Inferior mortgages cannot be extinguished except as provided by law. The law provides for extinguishment by partition sale only if the mortgagee was made a party to the partition.

Affirmed.

MORIAL, J., dissenting with written reasons.

MORIAL, Judge

(dissenting).

Plaintiff obtained a divorce on July 18, 1973. Subsequently, he petitioned for a partition by licitation of the community property. On the mortgage certificate obtained by the Civil Sheriff for the Parish of Orleans two inscriptions appeared: (1) Mortgage in favor of Collateral Investment Co. in the amount of $15,000.00 plus interest, etc., dated November 16, 1967; and (2) Judgment against Jeannette Lap-hand Sutton in favor of Bank of Louisiana in New Orleans in the sum of $1,316.97 plus interest, etc., Civil District Court No. 548-420 dated March 28, 1973. It is conceded that this judicial mortgage resulted from the separate indebtedness of the former wife. No holder of any mortgage, lien, or privilege was made a party to the partition proceedings. At the licitation sale which complied with all the requisites of law the property was adjudicated to plaintiff for $6,500.00. Plaintiff retained in his hands the amount of the purchase price and paid the Sheriff the costs of the sale.

Plaintiff petitioned for a writ of mandamus to have the Recorder of Mortgages for the Parish of Orleans cancel the judicial mortgage in favor of the Bank of Louisiana in New Orleans insofar as it applies to the immovable property he acquired at the Sheriff’s sale. Bank of Louisiana in New Orleans was served and appeared. The district court relying on C.C. P. Article 2337 declared the sale a nullity and denied the writ of mandamus.

C.C.P. Article 2337 governs judicial sales under a writ of fieri facias or a writ of seizure and sale. See C.C.P. Article 2724. Partition sales are regulated by the rules established in R.C.C. Article 1289 et seq., and C.C.P. Article 4601 et seq. These rules also apply to partitions between ordinary co-owners. R.C.C. Article 1290; Beltran v. Gauthreaux, 38 La.Ann. 106 (1886).

Plaintiff is not a seizing creditor and, therefore, Creech v. Capitol Mack, Inc., 287 So.2d 497 (La.1974) is inapplicable. He has an absolute right to sue for a partition by licitation of the property which he held as co-owner with his former wife. R.C.C. Article 1289. This right prevails even though the community property of the former spouse is encumbered with mortgages or the community is insolvent. Rhodes v. Rhodes, 190 La. 370, 182 So. 541 (1938). Therefore, the absolute right of plaintiff to require a partition cannot be questioned or affected, in the slightest degree, by any mortgage which is placed upon the interest of a co-owner. Bayhi v. Bayhi, 35 La.Ann. 527 (1883). Otherwise, plaintiff would be bound to remain in indi-visión with his former spouse.

It must now be determined whether the judicial mortgage in favor of the Bank of Louisiana in New Orleans, insofar as it applies to the immovable property, was canceled as a result of the partition sale. The answer to this question is found in the various decisions which are predicated on R.C.C. Articles 1290, 1338 and 1383.

The principle that in a partition by lici-tation “the mortgages attach to the share of the proceeds coming to the co-proprietor liable for the same” was recognized in Beltran v. Gauthreaux, supra, which affirmed those principles predicated on R.C.C. Articles 1338 and 1383 announced in Life Association v. Hall, 33 La.Ann. 49, 53 (1881) and Bayhi v. Bayhi, 35 La.Ann. 527, 531 (1883). See Morris v. Lalaurie, 39 La.Ann. 47, 1 So. 659 (1887). However, Act No. 86 of 1896 amended and reenacted the original text of R.C.C. Article 1338 to add the following:

“That in all judicial partitions, where a partition is made by licitation, the mortgages, liens and privileges existing against anyone or more of the co-proprietors shall be by order of Court transferred to the proceeds of sale in the hands of the Notary, and the rights of all creditors shall be reserved on the said proceeds of sale to be urged by them, either before the Notary or before the court, as may be necessary, provided the holders of such mortgages, liens and privileges be made parties to such judicial partition.”

In Succession of Williams, 138 La. 383, 70 So. 334, 336 (1915) the Court in commenting on the language added to R.C.C. Article 1338 by Act No. 86 of 1896 stated:

“It will be observed that the paragraph does not require that the holders of liens, mortgages, and privileges against the shares of particular co-owners shall be made parties to the partition proceeding, but contemplates that, if they are made parties, their liens, etc., 'shall be, by order of the court, transferred to the proceeds,’ etc.”

Therefore, the earlier rule predicated upon the interpretations of R.C.C. Articles 1338 and 1383 enunciated in Beltran v. Gauthreaux, supra; Life Association v. Hall, supra; and Bayhi v. Bayhi, supra, that in a partition suit between co-proprietors, by judicial sale, the mortgages affecting the share of one of them can be relegated to the proceeds, and their inscriptions against the property canceled remain unaffected where, as here, the holder of the mortgage, lien, or privilege is not made a party to the partition proceeding. In Schoeffner v. Schoeffner, 167 La. 208, 118 So. 890 (1928) the lienholder was not a party and the property was cleared of a paving lien at an auction to effect a partition sale and passed unencumbered to the plaintiff co-owner.

The judicial mortgage of the Bank of Louisiana in New Orleans was transferred to the shares of its judgment debtor in the proceeds of the partition sale. That plaintiff did not seek to have the judicial mortgage transferred to the proceeds to which it could attach is true. Apparently, that is because there are no proceeds to which it could attach. Since there are no proceeds, the plaintiff is entitled to receive the property purchased by him free from the encumbrance. See Beltran v. Gauthreaux, supra; Succession of Williams, supra; Schoeffner v. Schoeffner, supra.

Under the circumstances, to permit a judicial partition to be declared a nullity would, in effect, paralyze the right of a co-owner to terminate the indivisión of property guaranteed by R.C.C. Article 1289, at least in every case where the sale was essential and where the share of the other co-owner was burdened by mortgages.

For the foregoing reasons, I respectfully dissent.


text:
    JAHNCKE SERVICE, INC. v. POWER CORPORATION and Insurance Company of North America.
    No. 6979.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Writ Refused Jan. 7, 1976.
    Robert M. Caswell, Kronlage, Dittmann & Caswell, New Orleans, for Power Corporation and Ins. Co. of North America, defendants-appellants.
    Ralph S. Johnson, Johnson & Riess, New Orleans, for defendants-appellants.
    E. Howard McCaleb, III, New Orleans, for Jahncke Service, Inc., plaintiff-appel-lee.

      Before REDMANN, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This suit involves a dispute over a simple construction contract. On August 26, 1970 Jahncke Service, Inc. and Power Corporation entered into a contract whereby Jahncke agreed to furnish the materials and labor for a foundation at 300 Veterans Highway and Power agreed to pay $4,535.-00 for the foundation. The work was done and Jahncke now sues for the contract price, plus $1,111.92 in extra work. The trial court rendered judgment for Power Corporation as to the extras and for Jahncke Service, Inc. as to the contract price. Power Corporation has appealed the judgment rendered against it and Jahncke has not answered, thus that part of the judgment dismissing Jahncke’s suit on the extras is not before us.

Power Corporation, in accordance with CCP article 1005, pleaded payment as an affirmative defense and thus incurred the burden of proving it. The trial judge held that defendant had not borne that burden. While we admit that the evidence in this case is quite confusing, we feel it shows conclusively that a substantial percentage of the contract price was paid by Power Corporation.

The confusing evidence starts with the references to the foundation itself. It appears that this site has been referred to by three different names; it is variously known as 300 Veterans Highway, 200 Pap-worth Avenue and the Duplass slab or site. Power Corporation introduced six checks into evidence. One check, (D-2) was alleged to be payment of the indebtedness in question. The imputation of payment of these checks provide a great deal of the confusion surrounding this case. Some are payable to Jahncke Service, Inc., and some to Jahncke Concrete, apparently two separate divisions of plaintiff corporation. Jahncke also confuses the issue by introducing two sets of ledger sheets. One set is of Power Corporation’s account with them, the other set is of another account with Power Equipment, a sole proprietorship of Jess Power, admittedly not- involved in this case. Although the ledger sheets are of little evidentiary value in a suit on a contract they do tend to corroborate Power’s defense of payment.

The time periods in this suit are most important. The contract was signed on August 26, 1970 and the work commenced and was completed shortly thereafter. Jahncke attached a bill to its petition which shows that it had fully performed and was asking for full payment on October 29, 1970. The evidence further shows that the only business being transacted between the parties from late August, 1970 until October 29, 1970 was the job known as 300 Veterans Highway.

Power Corporation contends that check D-2 was payment for the contract price. Check D-2 is made out for $4,220.-51 to Jahncke Service. The notations on the check show that $4,026.53 was to be applied to Power’s September and October balance, while $193.98 was to be applied elsewhere. At the bottom of these notations are the words “Duplass Slab”. The bookkeeper for Jahncke testified that check D-2 was applied in accordance with the notations. The ledger sheets evidence that the $4,026.53 payment was applied against charges commencing September 1, 1970 and ending no later than October 20, 1970. As mentioned above, during this period the 300 Veterans Highway job was the only one in progress between the parties.

Check D-6 made out to Jahncke Concrete in the amount of $1,839.18, is also of interest since it carries the notation “Du-plass Site”. However, in argument before this court both parties agreed that this check was payment for work other than that encompassed in the contract of August 26, 1970.

We hold that Power Corporation has carried its burden of proof as to payment to the extent of $4,026.53 as shown on its check. Jahncke has failed to present any evidence that would show that the payment of $4,026.53 was not payment on the contract. This amount, deducted from the contract price of $4,535.00, leaves a balance owing of $508.47.

For the foregoing reasons we amend the judgment of the trial court to decrease the amount of the judgment in favor of Jahncke Service, Inc. from $4,535.00 to $508.47, and as amended we affirm. Jahncke Service, Inc. is to pay all costs.

Amended and affirmed.

      . The ledger sheets show a September balance of $4316.46. In October there were charges of $66.13 and credits of $346.06, making October balance of $4026.63, the amount paid by check D-2. We cannot award defendant this credit. The suit is on contract price, not balance of account. There is no showing that the credit is applicable to or should be deducted from the contract price.


author: STOULIG, Judge.

text:
    The BANK OF NEW ORLEANS AND TRUST COMPANY v. Robert P. SARBECK.
    No. 6977.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Robert S. Black, New Orleans, for plaintiff-appellee.
    Peter J. Abadie, Jr., New Orleans, for defendant-appellant.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiff, The Bank of New Orleans and Trust Company, obtained a judgment against Robert P. Sarbeck for the unpaid balance, interest and attorney fees due on a promissory note executed' by the defendant to finance the purchase of an automobile. Defendant has appealed.

Two and one-half weeks after the defendant took delivery of a 1973 Lincoln automobile, on which the bank held a chattel mortgage to secure its loan, the car was heavily damaged in an accident. It was not insured for collision loss.

The defense asserted by the defendant is that plaintiff’s officer undertook the obligation of obtaining insurance on the vehicle and its negligent failure to do so not only relieved mortgagor from liability on the chattel mortgage note, but also rendered the bank liable for his damages, including vehicle damage, storage fees, and bank charges totaling $5,000, for which amount he reconvened.

The factual dispute between the litigants is simply whether Tom Piacon, an assistant to the manager of plaintiff’s Westbank branch, obligated the bank to obtain collision insurance on the Sarbeck automobile. The trial court resolved it in plaintiff’s favor and there is nothing in the record to suggest manifest error in this result; therefore, we affirm.

Mr. and Mrs. Sarbeck both testified Mr. Piacon, on the bank’s behalf, assumed the responsibility for buying their insurance on this car but they were unable to state the amount of the premium they were to pay or the method of payment, i. e. whether they would be billed directly by the agent or whether the bank would advance the premium and add it to their monthly car note.

Mrs. Sarbeck testified she gave Piacon the name of her insurance agent, Nolan Insurance Company, and was assured he would take care of everything. After the car was heavily damaged, defendant testified he visited his insurance agent and was informed by the Nolan office staff that Piacon had not placed the insurance.

Sarbeck signed the promissory note on November 24, 1972; the accident occurred on December 11, 1972; and despite the fact that defendant claims he learned shortly thereafter that Piacon failed to place the insurance, he nonetheless continued to make monthly payments on this note through February 1974.

Unfortunately Mr. Piacon was not available to testify because his whereabouts were unknown at the time of the trial. Sometime between the date of the loan and the date of trial, he retired from the bank after 25 years of service. A bank official testified plaintiff was unable to mail Pia-con his retirement checks because it did not have his current address.

Documentary proof tending to discredit defendant’s claim is the chattel mortgage form he signed which, inter alia, itemizes the charges included in the total loan. It specifically negates any charge whatsoever for insurance coverage.

Appellant complains the testimony of the branch manager, Victor Guedimin, should have either been excluded by the court as hearsay or alternatively discredited because it is contradictory. Because we agree with the latter, it is unnecessary to comment on the former. The quality of Mr. Guedi-min’s testimony has no effect on the result reached, because even if we ignore it, we cannot find the trial court erred in concluding Sarbeck failed to establish the bank agreed to act as his agent in obtaining insurance coverage.

The defense testimony is unconvincing. We do not conclude it is false, rather we feel Mr. and Mrs. Sarbeck misunderstood their discussion with Piacon, for it is unlikely the bank would have absorbed the cost of the premium or, if it advanced this charge, that it would not have capitalized it in the principal of the note.

Circumstances that have been deemed corroborative of claims similar to those of defendant are (1) proof the premium was included in the amount financed; or (2) the premium had been billed and paid by mortgagor; or (3) an insurance policy had been issued. Brown v. Stephens Buick Company, 139 So.2d 579 (La.App. 4th Cir. 1962). We note the absence of any of these elements.

Two puzzling aspects of the case unexplained by defendant are (1) his failure to make a claim against the bank for negligently failing to place insurance until suit was filed against him; and (2) his continued payment of monthly installments long after the accident occurred. We are of the opinion there is nothing in the record to warrant the reversal of the judgment from which this appeal is lodged.

For the reasons assigned, the judgment appealed from is affirmed; costs of this appeal to be borne by appellant.

Affirmed.

      . On the trial of the matter, plaintiff introduced a property damage estimate for $1,650.08 and storage charges of $740.78.


author: BEER, Judge.

text:
    Ferdinand Henry SCHUTTEN et al. v. ORLEANS PARISH LEVEE DISTRICT et al.
    No. 6973.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Writ Refused Jan. 7, 1976.

      McCollister, Belcher, McCleary & Fazio, M. Aubrey McCleary, Jr., New Orleans, for plaintiffs-appellants.
    Deutsch, Kerrigan & Stiles, Robert L. Redfearn, New Orleans, for defendants-ap-pellees Board of Levee Comm’rs of Orleans Levee Dist.
    Alvin B. Gibson, New Orleans, for defendants-appellees Shell Oil Co.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

This is a petitory action met by exceptions of no cause or right of action and a motion for summary judgment. The trial court maintained the exceptions, granted the motion, and dismissed the action.

This well briefed and ably argued matter comes to us on a record that contains considerable documentary evidence despite the summary nature of the proceedings. We conclude, from our review of it, that the judgment of the trial court is correct and affirm.

Plaintiffs in a petitory action must recover on the strength of their own title and not on the weakness of that of their adversaries and must establish in themselves a perfect title, good against the world. Thus, any break in plaintiffs’ chain of title is fatal to their claim.

No useful purpose will be served in burdening this opinion with a detailed description of the property or a lengthy recitation of the chronological events which took place during the pertinent time period. It is sufficient to say that the record supports the conclusions of the trial court for the following reasons:

(1)

By instrument dated September 13, 1919, the subject property was adjudicated to the State of Louisiana for nonpayment of taxes assessed in 1918 to Mrs. Marie St. Ann. In 1924 by Act 99, the subject property was dedicated for spillway purposes, removed from commerce and no longer subject to redemption. In 1942 by Act 311, the legislature confirmed and quieted the title of the Levee Board to all public lands lying in the Bohemia Spillway.

(2)

By instrument dated July 9, 1941, the subject property was adjudicated to the State of Louisiana for nonpayment of taxes assessed in 1940 in the name of Mrs. Marie St. Ann. By Act 311 of 1942, the legislature confirmed and quieted the title of the Levee Board to all public lands lying within the Bohemia Spillway, thus removing the subject property from commerce and making it no longer subject to redemption.

(3)

On June 7, 1913, the subject property was sold at tax sale in the name of W. O. Crowell to R. M. White for the unpaid taxes of 1912. Thereafter it was sold to one Kranewell at a marshall’s sale on June 26, 1915. Thus, the sale of July 10, 1917 to Marie Stamm Schutten which forms the basic link in plaintiffs’ chain of title was inefficacious.

Without seriously contesting the adequacy of the record, plaintiffs-appellants argue that:

(1)

The 1919 tax adjudication of the subject property was null and void because one of the fractional sections comprising the subject property (section 3) had been the subject of a dual assessment in 1918, and, the taxes assessed against that section (section 3) were paid prior to the 1919 adjudication.

(2)

The 1941 tax adjudication of the subject property is invalid because the subject property (including section 3) having been adjudicated to the State in 1919 could not have been adjudicated to the State in 1941.

(3)

The marshall’s sale on June 26, 1915 was not effective because on June 23, 1915 W. O. Crowell redeemed from R. W. White the subject property which White had acquired by virtue of the June 7, 1913 tax sale.

Upon close examination, the ably advanced contentions of appellants are not susceptible to the total judicial acceptability necessary to sustain the precarious position of petitioners in a petitory action. Since the failure of any one of their contentions is fatal to their claim, we deem it unnecessary to delineate with particularity the failures apparent in the record subsequent to the inefficacious sale from Crow-ell to Marie Stamm Schutten on July 10, 1917 which forms the basic link in appellants’ contended chain of title.

Prior to this sale, the property (which appellants claim has been redeemed by Crowell from Mr. R. M. White on June 23, 1915) was subject to the judicial mortgage of Mr. White’s creditors which was recorded on August 28, 1914. Mr. White had previously purchased the property at a tax sale on June 7, 1913. At this time, the statutory period for redemption of a tax sale was one year under Article 233 of the Constitutions of 1898 and 1913, respectively. Mr. Crowell failed to redeem the property within one year. Mr. White’s title thus “ceased to be inchoate” Holland v. Holland, 28 So.2d 137 (La.App., 1946) and the property was then properly subject to the judicial mortgage. That mortgage was, thereafter, foreclosed and precipitated a marshall’s sale on June 26, 1915 to one Buck as agent for one Kranebell (or Kranewell). That marshall’s deed was executed on July 7, 1915 and duly recorded in Plaquemines Parish on July 20, 1915.

On the face of the record, we find that it was not error to conclude that, under the circumstances, appellants have not established their original title in the property. In a petitory action this conclusion effectively obviates the need to go further. A plaintiff in a petitory action must rely on the strength of his own title and not on the weakness of that of defendant. The title of defendant is not at issue until plaintiff has proved valid title in himself. Montgomery v. Breaux, 297 So.2d 185 (La.1974); Cook v. Martin, 188 La. 1063, 178 So. 881 (1938).

We further find that the 1919 tax adjudication was valid as to all but Section 3, and the 1941 tax adjudication was valid as to Section 3. Thus, the combination of these two adjudications would strip away any remaining shreds (if any there were) of appellants’ claim, particularly when considered in light of Act 99 of 1924 and Act 311 of 1942. See Emery v. Orleans Levee Board, 200 La. 285, 21 So.2d 418 (La.1945), and also Tillery v. Fuller, 190 La. 586, 182 So. 683 (1938).

The judgment is affirmed at appellants’ cost.

Affirmed.


author: LEMMON, Judge.

text:
    Bonnie M. CLEMENTS v. Joseph D. LINDSAY.
    No. 6975.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Writ Refused Jan. 7, 1976.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John W. Haygood, New Orleans, for plaintiff-appellee.
    Lee C. Grevemberg, New Orleans, for defendant-appellant.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   LEMMON, Judge.

In this suit on a promissory note the trial court granted plaintiff’s motion for judgment on the pleadings, and defendant appealed.

The note, dated March 16, 1966, read in pertinent part as follows:

“On or about FIVE YEARS from date,
I promise to pay Bonnie M. Clements TWENTY-FIVE THOUSAND AND NO/100 ($25,000.00) DOLLARS, without interest.”

I

It is conceded that the note, payable to a named payee rather than to order or to bearer, is non-negotiable. Defendant, however, argues that the phrase “on or about” does not constitute a fixed or determinable future time and that the instrument therefore either (1) is invalid, (2) is simply an acknowledgment of a debt and prescribed by passage of three years, or (3) is a promissory note payable on demand and prescribed by passage of five years.

An instrument may be a valid promissory note, although non-negotiable because it does not meet all the requirements of negotiability. The instrument in O’Rourke v. Moore, 239 La. 5, 117 So.2d 826 (1960), which is cited by defendant, stated “Pay to L. O’Rourke — $1,000.00”. The court held the instrument was not a promissory note because it did not contain language evidencing a promise to pay. The instrument in the present case does contain an unconditional promise to pay, and we conclude that the instrument is a valid, non-negotiable promissory note.

A non-negotiable note should be construed so as to give effect to the intent of the parties. DeRouin v. Hinphy, 209 So.2d 352 (La.App. 4th Cir. 1968). The phrase “on or about” fairly evidenced the parties’ intention (although inartfully expressed) that the note would have a maturity date, and the reasonable conclusion is that the maturity date was to be five years after the date of execution. Furthermore, prescription does not begin to run until a cause of action accrues, and plaintiff’s right to demand payment on the note did not accrue until March 16, 1971. We accordingly hold that plaintiff’s claim in her suit filed in September, 1974 was not prescribed by the five-year period applicable to promissory notes.

II

In his answer defendant admitted signing the note, but denied Mrs. Clements was the proper party plaintiff and also pleaded lack of consideration. Defendant alleged that 25,000 shares of stock in South Lake Investment Corporation were issued to him, “funded by ($)25,000 paid into the Corporation for that purpose by plaintiff”, and that the loan thus was made to the corporation and not to him.

Although plaintiff paid the corporation directly for stock issued to and accepted by defendant, that payment constituted consideration for defendant’s written promise to pay. We conclude that plaintiff’s motion for judgment on the pleadings was properly granted.

Defendant also pleaded set-off, based on allegations that the corporation (with plaintiff being the “controlling stockholder”) owed him salary, management fees and commissions, and further filed a reconventional demand on the same basis. Nevertheless, even if the corporation owed the alleged debt, that fact cannot serve to defeat plaintiff’s motion for judgment on the pleadings.

Ill

The trial court also awarded interest at the rate of 7% per annum, from March 16, 1971 (the date the note became due), pursuant to C.C. art. 1938, and 10% of $25,000.00 as attorney’s fees in accordance with the following provision of the note:

“In the event it becomes necessary to place this note, or any renewal thereof, in the hands of an attorney for collection or suit, I agree to pay ten (10%) per cent on the amount of this note as attorney’s fees, which fees are agreed to be part of the principal obligation of this note.”

By answer to the appeal plaintiff seeks interest on $27,500.00, arguing that the stipulated attorney’s fees were agreed to be part of the principal on which interest should be calculated. We disagree.

The debt ($25,000.00) bore interest from the date it became due. C.C. art. 1938. The attorney’s fee," payable on the condi-, tion that the note was placed for collection, was not part of the debt which became due, and there was no statutory or specific contractual basis for interest to be awarded thereon.

The judgment is affirmed.

Affirmed.

      . The two separate judgments maintaining exceptions of no cause of action to the re-conventional demand and to a third party demand against the corporation (on the basis that the incidental demand did not arise out of and was not connected with the principal demand) were not questioned by the defendant in this court.