author: HOOD, Judge.

text:
    CITY OF LAFAYETTE, Plaintiff-Appellee, v. David E. BLACK, Sr., and David E. Black, Jr., Defendants-Appellants.
    No. 5565.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 13, 1976.
    Rehearing Denied Sept. 20, 1976.
    Writ Refused Dec. 1, 1976.

      Edwards, Stefanski & Barousse by Homer E. Barousse, Jr., Crowley, for defendants-appellants.
    Ronald J. Judice, Lafayette, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

The City of Lafayette instituted this suit to enjoin defendants, David E. Black, Sr., and David E. Black, Jr., from using two lots of land, located in Lafayette, for any purposes other than those permitted by a zoning ordinance of that city. The trial court rendered judgment in favor of plaintiff. Defendants appealed.

The property affected by this suit is described as follows: Lots 18 and 19 of the Anna Belle Subdivision of the City of Lafayette, Louisiana.

The issues presented are (1) whether the two lots involved here were being used for a commercial purpose at the time the zoning ordinance was adopted, with the result that defendants are entitled to continue to use those lots for that purpose, and (2) whether the city is barred from maintaining this action by prescription of two years, under LSA-R.S. 9:5625.

David E. Black, Sr., purchased Lots 16, 17, 33, 34 and 35 of the Anna Belle Subdivision of the City of Lafayette, Louisiana, in July, 1968. Shortly thereafter, he began using those lots for the operation of a pet shop, which included the sale of small marsh buggies. The lots have been used for that purpose continuously since that time. The senior Mr. Black has employed his son, David E. Black, Jr., to work as manager of the business since 1968 or 1969.

On November 10, 1972, the City of Lafayette adopted Comprehensive Zoning Ordinance No. 0191, which became effective on December 2, 1972. Under the provisions of that ordinance the five lots which Black acquired in 1968 were, and have continued to be, classified as “R-1A-Single Family Residence” property. The ordinance also classified and zoned Lots 18 and 19 of the Anna Belle Subdivision as “R-1A-Single Family Residence” property. Lots 18 and 19 of that subdivision were owned by Wallace L. Mouton at the time the zoning ordinance was adopted. Those two lots are located southwest of and adjacent to the property which Black had acquired earlier and which he was using for the operation of his pet shop. The classification of those lots for zoning purposes has not been changed.

The Lafayette Comprehensive Zoning Ordinance prohibits the use of property classified as “R-1A-Single Family Residence” for commercial purposes. We interpret it as prohibiting the use of property so classified for the operation of a pet shop or for the sale of vehicles. The ordinance, however, contains the following significant provision:

“EXISTING USES: The lawful use of any building or land existing at the time of the enactment of this Ordinance may be continued although such use doés not conform with the provisions of this Ordinance.”

On June 13, 1974, defendant Black purchased Lots 18 and 19 of the Anna Belle Subdivision from Wallace L. Mouton. Black has owned those lots continupusly since that time.

This suit was filed on February 13, 1975. The City alleges that defendants are using Lots 18 and 19, which Black purchased from Mouton in 1974, for a purpose which is not permitted under the Lafayette zoning ordinance. It alleges the following facts as indicating defendants’ intent to use and to continue to use the property for such a purpose:

“B. Defendants’ present construction of an 8' wooden fence around the ‘residential lots’ joining them with the ‘Pet Shop Property’;
“C. Recent placement of certain items of defendants’ business stock in trade on portions of the ‘residential lots’.”

Plaintiff concedes that defendants were using the five lots which Black purchased in 1968 for a non-conforming purpose at the time the zoning ordinance was adopted, and that they are entitled to continue to use those lots for that purpose. The City contends, however, that Lots 18 and 19 were not being used for a non-conforming purpose at the time the ordinance was adopted, and that the City is entitled to judgment enjoining defendants from using Lots 18 and 19 for a purpose other than one permitted by the ordinance.

Defendants contend that they have been using Lots 18 and 19 for the display, testing, demonstration and sale of marsh buggies since 1968, and that those two lots were being used for that purpose at the time the Lafayette zoning ordinance was adopted in 1972. They take the position that under those circumstances they are entitled to continue to use those lots for that purpose.

The evidence is conflicting as to whether defendants used Lots 18 and 19 for the display, testing, demonstration and sale of marsh buggies, or for any other non-conforming purpose, prior to and at the time of the adoption of the zoning ordinance. Three persons who live in that immediate area testified that those two lots were not used for commercial purposes at any time prior to 1974 when Black purchased them from Mouton. Two city employees whose duties were to enforce zoning regulations in Lafayette testified that they had not observed or heard of any non-conforming use of the property before Black purchased the two lots at issue here in 1974.

Both of the defendants, one employee of the pet shop and two former employees testified that the lots were used regularly prior to 1972 for the display, testing, demonstration and sale of vehicles in connection with the operation of the pet shop.

Wallace L. Mouton, who sold Lots 18 and 19 to Black in 1974, testified that he never leased the lots to Black and never consented to them being used for commercial purposes. He concedes, however, that he knew that the vacant lots were used by defendants at times to test or demonstrate vehicles, and that he did not object. He indicated also that Black sometimes used the extreme northern edge of Lot 18, where it abutted Lot 17 then owned by Black, to unload vehicles and to park them. Early in 1974, he decided to build a fence on the boundary line between his property and that owned by Black, and a survey which he had made to determine the location of that fence showed that Black had been encroaching over the boundary line, from 10 to 14 feet onto Lot 18, for the parking of his marsh buggies. After that survey was made, Mouton demanded that Black clear the line for the construction of the fence, and shortly thereafter the parties entered into an agreement whereby Mouton sold Lots 18 and 19 to Black.

The deed from Mouton to Black, dated June 13, 1974, contains a statement to the effect that Black had used the two lots since 1968 in connection with his business, with Mouton’s knowledge and consent, that Mouton would not oppose the continued future use of the property for that purpose, and that Black would hold Mouton harmless from any loss or damage because of the latter’s failure to oppose the continued use of the property for commercial purposes. Mouton stated that he was not aware of the fact that that statement was in the deed, and he denied that he agreed to not oppose Black’s use of the land.

The trial judge found that prior to the adoption of the Lafayette zoning ordinance “Black intermittently parked some of his buggies on fourteen (14) or fifteen (15) feet of Lot No. 18 which adjoined his property,” and that he “utilized to some extent Lots 18 and 19 for the purpose of demonstrating the marsh buggies.” He concluded that the “small footage of Lot 18 that was used by Black for parking buggies at times could very well have appeared to the public as being a part of his property,” and that “the use of the property by Black was not sufficient to place the public on notice.” On the basis of those findings, he rendered judgment in favor of the city enjoining defendants from continuing to use Lots 18 and 19 for purposes other than those permitted for properties classified as R-1A-Single Family Residence property.

We agree with the conclusions reached by the trial court.

The evidence shows that defendants were using Lots 18 and 19 for a commercial, or non-conforming, purpose at the time this suit was filed. They are not entitled to continue to use the lots for that purpose, however, unless the evidence shows that the lots were being used for such a purpose in November, 1972, when the Lafayette zoning ordinance was adopted.

The burden of proof rests on defendants to show that the property was being subjected to a non-conforming use at the time of the enactment of that ordinance. To successfully overcome that burden, we think defendants must prove not only that they were using the property for a non-conforming purpose at the time the zoning ordinance was enacted, but also that its use of the premises was such that the neighborhood knew at that time that the lots were being employed for that purpose. See McQuillin, Mun.Corp. (3rd Ed.), Vol. 8A, Sections 25.186 and 25.187; City of Sillsbee v. Herron, 484 S.W.2d 154 (Tex.Civ.App.1972).

Applicable here, we believe, is the following general statement of law contained in MeQuillin Municipal Corporations:

“Public knowledge of a nonconforming use of land and dwellings generally is requisite to its legal protection against zoning restrictions. That is to say, an existing nonconforming use means a certain utilization of the premises so that they may be known to the neighborhood as being employed for a given purpose, e. g., the conduct of a business. Negative proof, while it may not be entitled to the same weight as positive proof in some respects, may have force to show that a particular use of land or buildings was not known in the neighborhood.” (McQuillin, Mun.Corp. (3rd Ed.), Vol. 8A, Section 25.187).

We agree with the trial judge that the evidence fails to show that the use to which Lots 18 and 19 were being subjected in 1972, when the Lafayette zoning ordinance was adopted, was sufficient to enable the neighborhood to detect or to know that the property was being used for such purposes. We find that the property was not being used for a non-conforming purpose at the time the ordinance was adopted, and we thus conclude that there is no error in the judgment rendered by the trial court.

Defendants filed in this court an exception of prescription, alleging that the City of Lafayette is barred from maintaining this action by prescription of two years, under LSA-R.S. 9:5625. They point out that the zoning ordinance was adopted on November 10, 1972, and that this suit was instituted more than two years later, on February 13, 1975. They argue that defendants used the property for a non-conforming purpose prior to the adoption of that ordinance, and that this action is prescribed since it was instituted “more than two years from the first non-conforming use made by the defendant.”

LSA-R.S. 9:5625A provides that all actions which may be brought by municipalities to require compliance with a zoning restriction imposed by the municipality “must be brought within two years from the first act constituting the commission of the violation.” That statute also provides that:

“. . . with reference to violations of use regulations all such actions, civil or criminal, . . . must be brought within two years from the date the . municipality . . . first had been actually notified in writing of such violation.” (Emphasis added).

The evidence shows that the City of Lafayette has never been notified in writing of the violation of the use regulations relat-mg to Lots 18 and 19, and that it had no notice or knowledge of any alleged violation of the zoning ordinance with reference to those lots prior to the time Black purchased them in 1974.

We have found that Lots 18 and 19 were not being used for a non-conforming purpose when the Lafayette zoning ordinance was adopted. The evidence shows, we think, that those lots were not used for such a purpose until after Black purchased them in 1974. This suit was instituted within two years after that time. There thus is no merit to defendants’ exception of prescription.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendants-appellants.

AFFIRMED.


source: Caselaw Access Project

author: HOOD, Judge. MILLER, Judge

license: Public Domain

text:
    Dudley FOREMAN, Plaintiff-Appellee, v. VERMILION PARISH POLICE JURY et al., Defendants-Appellants.
    No. 5570.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 13, 1976.
    Rehearing Denied Sept. 20, 1976.
    Writ Refused Dec. 1, 1976.

      Sandoz, Sandoz & Sehiff by Leslie J. Schiff, Opelousas, for plaintiff-appellant.
    Broussard, Broussard & Moresi by Paul Moresi, Jr., J. Isaac Funderburk, Abbeville, for defendant-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

This suit was instituted originally as an action for damages by Dudley Foreman against the Vermilion Parish Police Jury. Judgment was rendered in favor of Foreman and against the Policé Jury for the principal sum of $15,579.49, and we affirmed that judgment. See Foreman v. Vermilion Parish Police Jury, 258 So.2d 652 (La.App. 3 Cir. 1972).

In February, 1976, Foreman caused a writ of fieri facias to issue directing the Sheriff of Vermilion Parish to seize and sell an 80-acre tract of land owned by the Police Jury to satisfy the above judgment. The Sheriff seized that tract of land and he served notice on the Police Jury of the seizure and of his intent to sell the property on April 21, 1976.

The Police Jury then instituted the present action against Foreman and the Sheriff, seeking to revoke the seizure and to enjoin the sale of the property. Judgment was rendered by the trial court in favor of the Police Jury, enjoining Foreman and the Sheriff from proceeding with the sale. Foreman appealed, and the matter is before us now on that appeal.

The sole issue presented is whether property owned by the Vermilion Parish Police Jury is subject to seizure and sale under a writ of fieri facias issued to satisfy a money judgment rendered against the Police Jury.

The 80-acre tract of land involved in this suit was purchased by the Vermilion Parish Police Jury in 1898, and it was initially dedicated for use as a “Poor Farm.” The record indicates that the property was used for that purpose shortly after it was purchased. Later, however, the Police Jury leased the land for farming purposes to an individual for a four year term, beginning January 1, 1920. The property has been leased for agricultural purposes to another person since 1968.

On June 3, 1974, the Police Jury adopted a resolution declaring its intention to use the 80-acre tract of land as a “parish penal farm institution,” and as a place “to store vehicles abandoned on roads and/or public properties.” No prisoners have worked on the farm since that resolution was adopted, or at any time during the past five years.

The Police Jury contends primarily that the exclusive means by which a judgment creditor may obtain payment of a judgment rendered against it is out of funds appropriated for that purpose by the Police Jury, and that property owned by the Jury thus is not subject to seizure and sale. It cites and relies on LSA-R.S. 13:5109-B to support that argument.

Foreman contends that the 80-acre tract of land seized in this instance is not being used for a public purpose, that it is owned by the Police Jury in its proprietary capacity, as distinguished from its public or governmental capacity, and that the property thus is subject to seizure and sale to satisfy the money judgment which was rendered against the Police Jury. He relies on Bullis v. The Town of Jackson, 203 La. 289, 14 So.2d 1 (1943); Town of Farmerville v. Commercial Credit Company, 173 La. 42, 136 So. 82 (1931); and McCrary Co. v. Town of Winnfield, 40 F.Supp. 427 (La.1941).

Article 12, Section 10(C), of the Louisiana Constitution of 1974, provides:

“(C) Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.” (Emphasis added).

The pertinent parts of LSA-R.S. 13-.5109-B, as amended by Act 434 of 1975, read:

“B. Any judgment rendered in any suit filed against ... a political subdivision, . . . shall be exigible, payable, and paid only out of funds appropriated for that purpose by the . named political subdivision, if the suit was filed against a political subdivision.” (Emphasis added).

We interpret the quoted provisions of the Constitution and Revised Statutes to mean that property owned by a political subdivision, such as the Police Jury, is not subject to seizure and sale under a writ of fieri facias issued to satisfy a money judgment rendered against that political subdivision. Those constitutional and statutory provisions were adopted or enacted long after the cases cited by Foreman were decided, so the cases relied on by him are not applicable here.

It is immaterial, we believe, whether the 80-acre tract involved here is or is not being used for a public purpose. All parties concede that it is owned by the Police Jury. We conclude that it is “public property,” as that term is used in Art. 12, Sec. 10(C), of the Louisiana Constitution, and that since it is public property it is not subject to seizure and sale to satisfy a judgment against the political subdivision. That conclusion is consistent with, and we think it is compelled by, the additional provisions contained in the above section of the Constitution, and in LSA-R.S. 13:5109-B, that a judgment rendered against a political subdivision shall be paid only from funds appropriated for that purpose. The law thus, in effect, prohibits the payment of such a judgment from the unappropriated proceeds of the sale of property owned by the subdivision.

Foreman contends, finally, that the trial court judgment, which prohibits him from seizing and selling property owned by the' Police Jury to satisfy his judgment, denies him “justice and equal protection of the laws.” Article 12, Section 10(A), of the Louisiana Constitution of 1974 provides that a political subdivision is not immune from “suit and liability” for injury to person or property. Foreman takes the position that the judgment appealed from, decreeing in effect that the Police Jury is immune from “seizure,” conflicts with the cited section of the constitution which provides that it is not immune from “suit and liability.” His argument is that by granting the Police Jury immunity from seizure, the trial court judgment also grants it immunity from suit and liability, in violation of the provisions of the constitution, since it deprives the judgment creditor of a means of enforcing payment of the debt for which the Jury is liable.

We construe the above argument to be (1) that there is a conflict in the provisions of Article 12, Section 10, of the Louisiana Constitution which should be resolved in favor of the judgment creditor, and (2) that LSA-R.S. 13:5109-B, and La.Const.1974, Art. 12, Sec. 10(C), are invalid on the ground that they violate the “due process of law” and the “equal protection of the laws” provisions of the Fourteenth Amendment of the United States Constitution.

We find no conflict between Section 10(A) and Section 10(C), of Article 12, of the constitution. Neither do we find a conflict between LSA-R.S. 13:5109-B and Section 10(A), which provides that a political subdivision is not immune from suit or liability. The first cited section of the constitution, and LSA-R.S. 13:5109-B, merely provide a method by which judgments rendered against the state or its political subdivisions may be paid. They do not conflict with the provisions of the constitution that the state or its subdivisions are not immune from suit or liability.

The state clearly has the right to regulate the way in which judgments against its political subdivisions can be paid, and to prohibit the seizure of property owned by those subdivisions. In our opinion, the methods provided in the above cited statutes and constitutional provisions do not offend the rights granted to the judgment creditor by the Fourteenth Amendment of the Federal Constitution.

We find no error in the judgment which was rendered by the trial court.

For the reasons herein assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

MILLER, J., filed a concurring opinion.

MILLER, Judge

(concurring).

The manner in which the Vermilion Parish police jury has shown its refusal to pay this judgment indicates to me that they are now ignoring the plain meaning of Art. 12, § 10(A) of Louisiana’s 1974 Constitution. Political subdivisions ARE NOT IMMUNE from suit and liability. I understand Art. 12, § 10(C) to provide for an orderly method by which political subdivisions are to pay judgments against them. LSA-R.S. 13:5109-B provides nothing more than the same. When it appears that a political subdivision has set upon a course of conduct leading to an absolute refusal to pay a judgment, then Art. 12, § 10(A) must be read to provide relief to the judgment creditor.

This record establishes that Foreman’s counsel has respectfully and properly sought adoption of an ordinance authorizing payment of the judgment. Foreman offered to accept reasonable monthly instal-ments. His counsel has made personal appearances before the jury. He has been met with the assistant district attorney’s response which appears in the record — “Apparently, the Police Jury does not wish to make payment of the judgment; and, as you know, there is no way for you to enforce a judgment against the Police Jury.”

In this context I cannot agree that political subdivisions, which we agree are NOT IMMUNE from suit and liability, can defeat valid claims by refusing to authorize payment of the judgment.

The doctrine of governmental immunity was expressly rejected by Louisiana when it adopted its Constitution of 1974. Are we not here reinstituting the doctrine by recognizing a governmental subdivision’s immunity from efforts to enforce this judgment?

If the judgment creditor has no right to enforce his judgment, has he not lost the civil rights guaranteed him under the Fourteenth Amendment of the United States Constitution? Should the proper federal authorities learn of this intentional deprivation of this claimant’s civil rights, would not the parish stand to lose all federal funding? Surely, this claimant and those similarly situated will be able to exercise rights guaranteed to them by Louisiana’s recently adopted constitution.

I respectfully concur.


author: BERTRAND, Judge.

text:
    Daniel DIEUDONNE, Plaintiff-Appellant, v. Gerald GUIDRY and Southern Pacific Transport Co. of Texas and Louisiana, Defendants-Appellees.
    No. 5560.
    Court of Appeal of Louisiana. Third Circuit.
    Aug. 20, 1976.
    Rehearing Denied Sept. 20, 1976.
    Writ Refused Dec. 3, 1976.

      Borne & Rogers by Allen J. Borne, Franklin, for plaintiff-appellant.
    Davidson, Meaux, Onebane & Donohoe by J. J. Davidson, III, Lafayette, for defendant-appellee.
    Caffery; Duhe & Davis by J. Louis Gib-bens, New Iberia, for intervenor-appellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

Daniel Dieudonne brought suit against Gerald Guidry and his employer, Southern Pacific Transport Company of Texas and Louisiana, for damages sustained as the result of an accident which occurred near the “T” intersection of Louisiana Highway 85 and U.S. Highway 90 in Jeanerette, Louisiana.

The jury, by special verdict, found that Guidry was guilty of negligence which was a proximate cause of the accident and that Dieudonne was either guilty of negligence or that he had that the last clear chance to avoid the accident. The effect of the jury’s findings was to deny recovery to Dieu-donne.

Dieudonne thereafter applied for a new trial, alleging that new evidence had been discovered and that a juror had made an unauthorized visit to the scene of the accident. The trial judge denied his motion and refused to consider the affidavits of certain jurors in arriving at his decision.

Dieudonne has based this appeal on two issues:

(1) Whether the findings of the jury were erroneous, and

(2) Whether the trial court erred in denying plaintiff’s motion for a new trial.

I JURY VERDICT

On October 11, 1973, at approximately 11:00 A.M., Guidry was driving his truck in a northerly direction on Louisiana Highway 85 and was approaching U.S. Highway 90. Dieudonne was travelling toward Louisiana Highway 85, in an easterly direction on U.S. 90, the favored road. As Guidry reached the intersection, he brought his truck to a complete stop, looked to his left, the direction from which Dieudonne was approaching, saw nothing, then looked to his right and proceeded forward onto the highway in order to make a left turn. As he was pulling forward, he looked again to his left and saw Dieudonne approaching. Gui-dry brought his truck to an immediate stop approximately three (3) to seven and a half (7V2) feet from the center line. Dieudonne swerved around Guidry, veered to the left, ran over a mountable curb and into some gravel, where he lost control and ran onto the roots of a large oak tree.

A jury’s findings of fact should be affirmed unless characterized by manifest error, and should not be upset except in the most compelling and clearest case of error. Hooper v. Wilkinson, 252 So.2d 137 (La.App. 3rd Cir. 1971); Iverson v. Jahncke Services, Inc., 301 So.2d 886 (La.App. 4th Cir. 1974); Ashley v. Nissan Motor Corp. in U. S. A., 321 So.2d 868 (La.App. 1st Cir. 1975), writ refused. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Canter v. Koehring, 283 So.2d 716 (La.1973); Bertrand v. Aetna Casualty and Surety Co., 306 So.2d 343 (La.App. 3rd Cir. 1975), writ refused.

At trial, Dieudonne stated that he did not try to go around Guidry because a yellow Pinto was coming from the opposite direction. However, Guidry and the only other witnesses to the accident, Harry John Lewis, Jr. and Johnny Dubois, testified that they did not see another car coming from the opposite direction.

Dieudonne testified that he was travel-ling about 30 to 35 miles per hour. The speed limit for that portion of U.S. 90 is 35 miles per hour. Henry John Lewis, Jr., first testified that Dieudonne appeared to be going 35 miles per hour or a little better. However, a prior statement made by him .was to the effect that Dieudonne was travelling about 50 to 60 miles per hour. Upon being confronted with this statement, he changed his assessment of Dieudonne’s speed to, “40, 45, 50, something like that.” Guidry estimated Dieudonne’s speed to be 40 or 45 miles per hour. It should be noted that Dieudonne testified that at the time of the accident he was running late in his deliveries.

Guidry testified that when he stopped and first looked to the left, the telephone pole was the only object which could have obstructed his view. He eased his truck past the pole in order to get a better view, and did not see any traffic coming from his left. Guidry’s cab had no nose, and the windows were large, thereby affording him excellent visibility.

Dwayne T. Evans, a consulting traffic engineer, considered several hypotheses at trial. He stated that if Dieudonne had seen Guidry from 175 to 200 feet away and was travelling 35 miles per hour, he could have brought his truck to a complete stop before reaching Guidry. If Dieudonne had observed Guidry from 200 feet, travelling 35 miles per hour, he could have brought his vehicle to a stop 100 feet before reaching the intersection. He could not have stopped his car in time if he was travelling 35 miles per hour and first observed Guidry when he was 10 to 20 feet away. If Dieu-donne had only realized the danger at the time he reached the intersection and had reacted while travelling at 35 miles per hour, he could have avoided collision with the tree, which was 130 to 135 feet past the intersection. If he was travelling 35 miles per hour and had started braking before he hit the mountable curb, even taking into consideration that he ran upon a graveled area, Dieudonne should not have lost control of his truck. However, if his speed was 45 to 55 miles per hour he would have lost control when he hit the mountable curb.

Clay Penn, the investigating officer, testified that Guidry told him that it was lucky that no car was coming in the other direction. He testified that the heavy damage sustained by the Dieudonne truck was evidence of excessive speed.

The record in the case contains sufficient evidence to warrant a finding of negligence on the part of the plaintiff. From the evidence adduced, the jury could properly find that the plaintiff was operating his vehicle at an excessive speed, without keeping a proper lookout and without having his vehicle under proper control.

The evidence also supports a finding that the plaintiff had the last clear chance to avoid the accident.

II APPLICATION FOR NEW TRIAL

A. IMPROPER JURY CONDUCT

The trial court committed no error in its denial of a new trial based on alleged jury misconduct. During the course of the trial the foreman of the jury visited the scene of the accident. The plaintiff argues that this constituted improper jury conduct which entitles him to a new trial.

Absent court instructions to the contrary there is no reversible error when a juror visits the scene of the accident unless this visit is brought about by improper motives, particularly where the rights of the parties are not prejudiced. Youngblood v. Allstate Insurance Company, 98 So.2d 570 (La.App. 2nd Cir. 1957), reversed on other grounds, 239 La. 338, 118 So.2d 431 (1960). During the trial the jurors were shown large photos of the scene of the accident. These photos were introduced into evidence by both the plaintiff and defendants. A visit to the actual scene of the accident could not have prejudiced the rights of either party unless the juror performed experiments to supply new evidence. This did not occur. We have previously ruled that it was not improper for a trial judge to visit the scene of the accident without the presence of counsel where the visit supplied no new evidence. Maturin v. Dronet, 288 So.2d 690 (La.App. 3rd Cir. 1974).

The plaintiff contends that the trial court committed error in refusing to admit the affidavits of certain jurors into evidence. We find no merit to this argument. Affidavits or testimony of jurors to impeach their own verdict on grounds of misconduct on the part of the affiant or his fellow jurors are inadmissible to set aside a jury verdict. Renz v. Texas and Pacific Railway Company, 138 So.2d 114 (La.App. 3rd Cir. 1962), cert. denied, and the cases therein cited. Applying the rule announced' in Renz, we feel that the trial court was correct in refusing to consider the affidavits in question.

B. NEWLY DISCOVERED EVIDENCE

The plaintiff’s final contention is that the trial judge erred in denying his application for a new trial because he had discovered new evidence. The new evidence consisted of testimony by a Mrs. Landry that on the day of the accident the plaintiff stated to her that an oncoming yellow Pinto prevented him from going around Guidry. This testimony is corroborative and, therefore, cumulative. The trial court properly refused a new trial based on this alleged testimony. Becker v. Ashley, 150 So. 74 (La.App. 1st Cir. 1933); Chauvin v. Chauvin, 297 So.2d 234 (La.App. 3rd Cir. 1974).

For the reasons assigned, the judgments appealed from are affirmed at appellant’s cost.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    McCULLOUCH OIL CORPORATION, Plaintiff and Appellee, v. Areson J. VILLEJOIN et al., Defendants and Appellants, Reginald Hayes et al., Defendants and Appellees.
    No. 5562.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Rehearing Denied Sept. 20, 1976.
    Writ Refused Dec. 1, 1976.

      Pugh, Buatt, Landry & Pugh, by Lawrence G. Pugh, Jr., Crowley, for defendant-appellant.
    Edwards, Stefanski & Barousse, by Homer E. Barousse, Jr., Crowley, for defendant-appellee.
    Bailey & Hollier, by George J. Bailey, Lafayette, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This is a concursus proceeding. The plaintiff owns oil leases covering 4.93 acres of land included in a unit from which production has been obtained. It deposited in the registry of the court royalties attributable to the 4.93 acres and cited as adverse claimants to the royalties and to the ownership of the land two groups of persons hereinafter referred to respectively as the Villejoin Group and the Hayes Group. The district judge found the Hayes Group owns the property and rendered judgment accordingly. The Villejoin Group appealed.

The issues are: (1) Were either the Ville-join Group or the Hayes Group in possession of the 4.93 acres in dispute for more than a year prior to the time this concursus proceeding was filed on March 19,1974? (2) If either group was in possession, did the adverse group make out their title within the meaning of LSA-C.C.P. Article 3654? (3) Did the Villejoin Group prove ownership by the acquisitive prescription of 10 years?

The general facts are that the Villejoin Group and the Hayes Group own adjacent farms in a rural area in Lafayette Parish. The Villejoin farm contains approximately 41 acres, including the 4.93 acres in dispute. This farm fronts on the west side of a public road and runs back in a westerly direction to Bayou Queue De Tortue. The front portion of the farm has for many years been used by the Villejoin Group as a home and to raise rice and other row crops. The back portion of the farm near the woods along the bayou has been used for pasture. The 4.93 acres in dispute is located on the extreme west end of the farm in a bend of the bayou. It is bound on the north and on the west by Bayou Queue De Tor-tue. . It is bound on the east by the section line between Sections 29 and 28, TIOS, R2E, but there is no fence or other enclosure along this section line separating the 4.93 acres from the remainder of the farm. The 4.93 acres is bound on the south also by Bayou Que De Tortue, except for a space of about 30 feet between the bayou and the section line.

The Hayes property is located south of the 4.93 acres in dispute. They claim they have always had access to and maintained possession of the 4.93 acres through the narrow 30-foot space between Bayou Queue De Tortue and the section line. The Hayes Group claim ownership of the property in dispute by record title to a tract of land described as 20 acres more or less located in Section 29, in which section the 4.93 acres is located.

The Villejoin Group contend they have possessed the 4.93 acres for over 30 years as part of their back pasture which has been completely enclosed. They say that access by the Hayes Group through the narrow space of 30 feet between the bayou and the section line has been blocked for over 30 years by an intake ditch to a rice irrigation pump and by fences, the first of which was erected more than 30 years ago for the purpose of separating the Villejoin pasture from the Hayes land. The Villejoin Group claims ownership by the acquisitive prescription of 10 years under a 1944 deed to the defendant, Areson J. Villejoin, from his father, Jules Villejoin, and from his brothers and sisters, following the death of their mother.

POSSESSION

Under LSA-C.C.P. Article 3654, when the issue of ownership of immovable property is presented in a concursus proceeding, the court shall render judgment in favor of the party: “(1) Who would be entitled to the possession of the immovable • property or real right in a possessory action, unless the adverse party makes out his title thereto; or (2) who proves better title to the immovable property or real right, when neither party would be entitled to the possession of the immovable property or real right in a possessory action.”

Under Article 3654, the first question which we must decide is whether either the Villejoin Group or the Hayes Group had possessed the property in dispute for more than a year prior to the time this concursus proceeding was filed on March 19, 1974. We ultimately conclude the evidence is overwhelming that the property was possessed by the Villejoin Group.

Areson J. Villejoin, who is now 76 years of age, testified that he and his brothers and sisters were raised on the Villejoin farm. In 1944 he bought the farm from his father and his brothers and sisters. He lived on the property, using the front portion to grow rice and other row crops and the rear portion next to the bayou for pasture for his cattle and sheep. This rear pasture included the 4.93 acres which is on the extreme west end of the farm, next to the bayou. Mr. Villejoin testified that many years ago this back pasture was not enclosed and was used as open range by cattle in the area. However, before be bought the property from his father in 1944, the pasture was enclosed by a fence and by an intake ditch or canal from the bayou to a pump which was used to irrigate the rice crops. Of course, there is no question that the entire pasture, including the 4.93 acres in dispute was enclosed by Bayou Queue De Tortue on the north and west and by the remainder of the Villejoin property on the east. The only question as to whether the property was completely enclosed relates to the narrow strip of about 30 feet between Bayou De Tortue and the line between Sections 28 and 29.

Mr. Areson Villejoin testified positively that before he bought the property from his father in 1944 this 30-foot strip, which is bounded on the south by the Hayes property, was closed off by the intake ditch for the pump and by a fence which was originally built by his father. Mr. Areson Ville-join also testified that after he purchased the property from his father, he put sheep in the pasture, and in order to keep these sheep from straying onto adjoining lands, he built a small dam to keep water in the ditch and also built a fence along the top of this dam. He says this dam and fence completely enclosed his pasture and denied any possible access from the Hayes property to the 4.93 acres in dispute.

This portion of the testimony of Mr. Are-son Villejoin is corroborated by his brother, Mr. Eugene Villejoin, by his son, Mr. Ozaun Villejoin, by his daughter, Mrs. Wally Fon-tenot, by his daughter, Mrs. Eddie Simo-neaux, and by her husband, and by his aunt, Mrs. Aymond Thibodeaux. These witnesses all testified that they either lived on or were thoroughly familiar with the Villejoin farm and that more than 30 years ago the dam and the fence were in existence enclosing the pasture, including the 4.93 acres in dispute.

Mr. Lovelace Thibodeaux testified that in about 1962 he leased the rice land from Mr. Areson Villejoin, but at that time Mr. Ville-join retained the use of the pasture for his cattle. Then in 1965, Lovelace bought Mr. Villejoin’s cattle, about 20 head, and leased the pasture for $200 a year. When this concursus was filed, Lovelace Thibodeaux was still leasing the pasture and keeping about 20 head of cattle in it. He testified positively that since he had known the property, the pasture had been completely enclosed, and that there was no access to that pasture by any cattle owned by the Hayes Group or any one else.

Mr. Frank Lyman testified as to a survey which he made in March of 1975 in preparation for this trial. This plat shows the existing intake canal and a fence separating the Villejoin pasture from the Hayes land.

The only evidence which even seeks to contradict the above testimony showing possession in the Villejoin Group, is the testimony of the Hayes brothers. Mr. Julius Hayes, who is now 61 years of age, testified that in about 1930 his father and Mr. Jules Villejoin had a dispute of some kind about the property in question here. Julius says his father told him at the time where the section line is and that the Hayes owned the property in Section 29 and the Villejoins in Section 28, and that they should never let the Villejoins build a fence between the bayou and the section line.

However, Julius Hayes conceded that the intake canal had been in existence across the 30-foot gap in question for well over 30 years, but he denied that there was any fence across the gap until 1965. It was his testimony that in 1965 Areson Villejoin put some sheep in the Villejoin pasture and at that time Hayes erected a fence just south of the intake ditch in order to keep the sheep from straying onto the Hayes property and other property. Mr. Hayes also contends that they on one occasion sold timber from the 4.93 acres in question. But they admit that Mr. Villejoin also sold timber from this tract without objection from the Hayes Group.

Julius Hayes admitted that for the last 10 years, and particularly after Lovelace Thi-bodeaux leased the pasture, the Hayes cattle had not been on the property in question. The only acts of possession even urged by the Hayes brothers during the last 10 years consisted of hunting on the property, cutting bean poles and walking over it. Mr. Sidney Hayes and Mr. Reginald Hayes testified substantially to the same effect.

Mr. Warren Hayes, who has a camp on the bayou south of the property in dispute, testified he has been very familiar with the area for years. He testified the Villejoins dug the intake ditch for their irrigation pump about 50 years ago. He also remembered that his daddy had built a fence near the ditch to keep the Villejoin sheep in their pasture, and said remnants of that fence are still in existence. One of the most important parts of his testimony is that he had frequently assisted in driving the Ville-join cattle and the Hayes cattle back to their respective pastures when they escaped. This shows the Villejoin pasture was completely enclosed after the intake ditch and fence were built, which was over 30 years ago.

None of the Hayes brothers contend they ever tried to keep Areson Villejoin or his lessee from using the property. They do not even say that they ever told Mr. Areson Villejoin that the Hayes claimed to own the property.

In his reasons for judgment dictated into the record at the conclusion of the trial, the district judge stated the Villejoin heirs did not prove they possessed the land because the Hayes had easy access to the property. He concluded he was “more favorably impressed with the title and possession of the Hayes defendants and will accordingly render judgment in their favor.” We cannot agree that the evidence reasonably supports the finding of the trial judge as to possession. Under the evidence outlined above, it is our opinion the evidence conclusively shows that the Villejoin Group had been in possession of this property both personally, and through their lessee, Lovelace Thibodeaux, for many years prior to the time this concursus was filed.

OWNERSHIP

Having concluded that the Villejoin Group were in possession for more than a year prior to the time this concursus proceeding was filed, the next question under LSA-C.C.P. Article 3654 is whether the Hayes Group, as adverse claimants, “made out” their title to the 4.93 acres in dispute.

The Hayes Group trace their record title back to a tax sale dated June 9, 1906 to James Hayes as purchaser, for taxes due by unknown owners for the year 1905. The property is described as “40 acres of land, more or less, being a portion of Lots 1 and 2, Section 29, TIOS, R2E, bounded north by Bayou Queue De Tortue, south by Indian Bayou, east by E. A. Durham, west by Indian and Bayou Que Tortue.” Subsequent deeds show the Hayes Group presently have a recorded title to the 4.93 acres in dispute. However, the Hayes Group do not allege or seek to prove ownership by the acquisitive prescriptions of either 10 or 30 years.

We are aware of the recent Supreme Court case of Pure Oil Company v. Skinner, La., 294 So.2d 797 (1974), in which the majority held that the burden imposed by the clause “make out his title” under LSA-C. C.P. Article 3654, requires that, as against a party who is in possession, the adverse party must “show title good against the world without regard to the title of the party in possession.” The majority concluded that since there was a gap of 16 years, from 1858 to 1874, in the recorded chain of title, and since there was no attempt to prove acquisitive prescription, the adverse parties had not “made out their title”. Justice Summers, joined by Justice Marcus, wrote a strong dissent contending that the term “make out his title” had been construed by the jurisprudence and by legal scholars to require proof of only “an apparently valid title”, not a perfect title.

In the present case we need not decide whether Pure Oil Company v. Skinner is applicable. Regardless of whether the Hayes Group “made out their title” based on recorded instruments, the Villejoin Group have established their ownership by the acquisitive prescription of 10 years provided by LSA-C.C. Articles 3478 and 3479 which read in pertinent part as follows:

Art. 3478. “He who acquires an immovable in good faith and by just title prescribes for it in ten years . . .”
Art. 3479. “To acquire the ownership of immovables by the species of prescription which forms the subject of the present paragraph, four conditions must concur:
1. Good faith on the part of the possessor.
2. A title which shall be legal, and sufficient to transfer the property.
3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
4. And finally an object which may be acquired by prescription.”

By deed dated July 1, 1944, Mr. Jules Villejoin and his children by his deceased wife conveyed to the defendant, Areson J. Villejoin, property described as follows:

“A certain tract of land situated in the Second Ward of Lafayette Parish, Louisiana, with all improvements thereon containing 35 acres, bounded as follows: North by land of Francois Gaspard; South by E. A. Durr Estate; East by lands of Francois Gaspard and Numa Vil-lejoin; West by Bayou Queue De Tor-tue.”

On the same date, July 1, 1944, Areson Villejoin acquired from his brother, Numa Villejoin, 7 arpents bounded east by the public road and west by the above described land acquired from his father and brothers and sisters, thereby acquiring title to the entire 41 acres which composes the Villejoin farm.

There is no question that on the date he acquired these properties in 1944 Areson J. Villejoin was in good faith in believing that his father and brothers and sisters owned the entire farm including the 4.93 acres in dispute. Not only did Areson Villejoin and his brothers and sisters testify that they thought their father, Mr. Jules Villejoin, owned the entire property, but there were several other witnesses who had lived in the community for many years and who testified that Jules Villejoin had always claimed to own the property in dispute and they thought he did own it. One of the strongest witnesses in this regard is a Mr. Frank Morgan, who is 80 years of age, and was actually called as a witness in this case by the Hayes Group. Mr. Morgan testified that he had always thought the Villejoins owned this property because they possessed it and claimed it. It was not until oil was discovered and a survey was made showing that the 4.93 acres was in Section 29, to which the Hayes claimed recorded title, that anyone questioned ownership by the Villejoin Group.

We think it is also clear that the deed by which Areson J. Villejoin acquired the property from his father and his brothers and sisters in 1944 was sufficient to transfer the property. It is true the description does not state the section or township in which the property is located, but it does give the ward and parish and describes the property by adjacent landowners and by the west boundary, which is Bayou Queue De.Tortue. Under the jurisprudence, this description is clearly sufficient to meet the requirement of Article 3479 that the deed transfer the property. See the similar case of Snelling v. Adair, 196 La. 624, 199 So. 782 (1940). Actually, in their brief filed in this court the Hayes Group do not even argue that the 1944 deed to Areson J. Villejoin was not sufficient to transfer the property. Their arguments are directed chiefly to the contentions that the Villejoins had no possession and that the Hayes have record title.

Requirements numbered 3 and 4 under Article 3479 quoted above are also met. For the reasons stated in the above discussion regarding the possession of Areson Vil-lejoin, it is clear that the 4.93 acres in dispute was completely enclosed with the remainder of the Villejoin farm and was corporeally possessed by Areson Villejoin in good faith for much more than 10 years after he acquired the property in 1944.

We conclude that the Villejoin Group not only possess the property in dispute but that they own it by the acquisitive prescription of 10 years.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein against Reginald Hayes, Sidney Hayes, Julius Hayes and Warren C. Hayes, and in favor of Areson J. Villejoin, Katherine Villejoin Picard, Iris Villejoin Simoneaux, Brendon Lenora Ville-join Fontenot and Ozaun K. Villejoin recognizing them as owners of the 4.93 acres in dispute as described in plaintiff’s petition and in this concursus proceeding, and in the proportions and capacities stated in paragraph 4 of said petition. It is further ordered, adjudged and decreed that the clerk of court for Lafayette Parish, and the plaintiff, McCullouch Oil Corporation, pay over to the named members of the Villejoin Group all of the royalties accruing to said property in the proportions stated in paragraph 4 of plaintiff’s petition and this con-cursus proceeding. All costs of both the trial and appellate courts are to be paid from the mass of the sum on deposit with the clerk of court.

REVERSED AND RENDERED.


text:
    Lawrence J. TYLOCK, Plaintiff-Appellant, v. Kenneth PERRY, Sr., Defendant-Appellee.
    No. 5545.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Rehearing Denied Sept. 20, 1976.

      Fredric G. Hayes, Lafayette, for plaintiff-appellant.
    Voorhies & Labbe by John W. Hutchison, Lafayette, for defendant-appellee.
    Albert L. Boudreau, Jr., Abbeville, for exceptor-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

Plaintiff, Lawrence J. Tylock, instituted this suit originally to recover the sum of $88,000.00 from Kenneth Perry, Sr. He later filed a supplemental and amending petition seeking to recover the additional sum of $5,100.00 from Preston J. Miller, III. Defendant Miller filed an exception of no right and no cause of action. Judgment was rendered by the trial court sustaining that exception and dismissing the suit as to Miller. Plaintiff appealed.

The issues presented are whether plaintiff has a right of action against defendant Preston J. Miller, III, or whether he has alleged a cause of action against that defendant.

Miller contends that Tylock is seeking to recover on a debt which he alleges is owed by Miller to a corporation, Perry & Tylock, Inc., of which plaintiff is a minority stockholder. He argues that Tylock, individually, has no right of action against him for that alleged debt, but that that right belongs exclusively to the corporation. Plaintiff argues that the action was brought “in the name of the corporation,” because he alleged in his original petition that he appeared “individually, and as a shareholder of, and on behalf of Perry & Tylock, Inc.”

In all of the pleadings filed by plaintiff, he demands that judgment be rendered solely in his favor. He does not pray for judgment in favor of the corporation. Our interpretation of the pleadings is that plaintiff is seeking to recover, individually, from defendants, and we feel that he has no right to do so, either as an individual or as a shareholder. We have concluded, however, that plaintiff has failed to state a cause of action against Miller, whether the suit was instituted in behalf of the corporation or by Tylock, individually, and that for that reason it is unnecessary for us to consider the issues presented by the exception of no right of action.

For the purpose of determining the issues raised by the exception of no cause of action, all well pleaded allegations of fact contained in plaintiff’s petition must be accepted as true. Manuel v. Moity, 313 So.2d 278 (La.App. 3 Cir. 1975).

The facts, as alleged by plaintiff, are that Tylock owns forty-nine percent of the stock of the corporation known as Perry. & Tyl-ock, Inc. Defendant Perry is an officer of that corporation. On or about May 27, 1975, the corporation borrowed approximately $13,000.00 from Guaranty Bank and Trust Company, pledging as collateral security for the repayment of that loan “a contract with Tenneco Oil Company.”

The proceeds of the above loan were deposited to the account of Perry &. Tylock, Inc., in the above bank, and thereafter those funds were withdrawn and disbursed by defendant Perry. According to the pleadings, those funds were disbursed for purposes which had not been authorized by the loan agreement or by the corporation, and the corporation failed to receive the benefits of the $13,000.00 loan. Plaintiff asserts that as a result of those disbursements no funds were left to perform the corporation’s obligations under the above contract, that the corporation has ceased to do business, and that plaintiff “has been forced to personally obligate himself to make payment to the bank.” There are no allegations to the effect that plaintiff actually has paid any amount to the bank.

Tylock alleges in his supplemental and amending petition that on or about May 27, 1975, a check for $5,100.00 was issued by Perry & Tylock, Inc., to defendant Preston J. Miller, III, and that “said funds were transmitted in payment of a debt of Kenneth Perry, Sr.” He also alleges:

“That made defendant is PRESTON J. MILLER, III, domiciled in Vermilion Parish, Louisiana, who knew or should have known that the $5,100.00 he received was not in payment for labor or material to be used in the construction contract for which the loan from the Guaranty Bank had been received by Perry & Tylock, Inc.”. •

On the basis of the above allegations, plaintiff prays for judgment in his favor and against defendant Perry for the sum of $88,000.00, which includes the proceeds of the $13,000.00 loan and $75,000.00 as damages. He also demands judgment in his favor and against defendant Miller for the additional sum of $5,100.00, being the amount which allegedly was received by that defendant from corporation funds.

The trial judge rendered judgment sustaining an exception of no right and no cause of action filed by Miller and dismissing the suit as to that defendant. It is that judgment which is before us on this appeal.

We are not concerned here with the question of whether plaintiff may recover from Perry or from a corporation, or whether plaintiff, as a stockholder, may maintain an action in behalf of the corporation known as Perry & Tylock, Inc. The sole question presented is whether plaintiff, either individually or in behalf of the above corporation, may recover from Miller the amount which allegedly was paid to Miller from corporate funds.

Plaintiff points out that LSA-R.S. 14:69 makes it a criminal offense to receive stolen things “under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.” He contends that the funds which were paid to Miller were “stolen things,” and that Miller should be compelled to return them to the rightful owner. He also argues that Miller was unjustly enriched by the payment, and that he should be made to restore the amount he received under LSA-C.C. art. 2301.

Plaintiff does not allege or contend that Miller knew or had reason to believe that the funds paid to him had been stolen or misappropriated. He, in fact, states in his written brief that “it is not argued nor contended that the defendant-appellee Miller was at any time in bad faith prior to the time that he learned the money had been misappropriated from the corporation Perry & Tylock, Inc.” He contends only that Miller is now in bad faith, because he has since learned that he is holding “a thing which he knows was wrongfully obtained from another, and that he is in bad faith in refusing to return it to the rightful owner.”

Since plaintiff does not allege that Miller was in bad faith when he received the $5,100.00 payment, we assume for the purpose of the exceptions which are before us that he was in good faith.

LSA-C.C. art. 2301 provides that “He who receives what is not due him, whether he receives it through error or knowingly, obliges himself to restore jt to him from whom he has unduly received it.” Plaintiff contends that under the provisions of that article defendant Miller is obliged to restore the payment to plaintiff.

Miller contends that the $5,100.00 check was issued in payment of a debt which was owed to him by Perry, that Miller thus did not recover something which was not due him, and that he was in good faith in accepting that payment. The allegations in plaintiff’s pleadings support that contention.

In Evangeline Iron Works v. Lyons, 233 La. 307, 96 So.2d 578 (1957), the plaintiff corporation sued to recover sums of money which had been paid to defendant Smith from misappropriated corporate funds. The checks were cashed by Smith in good faith, for full value, and without knowledge of any defalcation. The plaintiff relied on LSA-C.C. art. 2301 as one ground for the relief it sought. Its demands were rejected on other grounds, but with reference to that article of the Civil Code the Supreme Court said:

“ . . . Article 2301 must be read and considered together with the negotiable instrument law of this state — particularly R.S. 7-52 and R.S. 9:3804 et seq.— and plaintiff still cannot recover under the facts of this case.”

In Insurance Company of North America v. Davidson, 282 So.2d 585 (La.App. 4 Cir. 1973), the surety on a fidelity bond sued the payees of a forged check of a corporation, which check had been honored by the drawee bank. The court, in sustaining an exception of no cause of action filed by defendants, found that there was “no acceptable allegation of any bad faith on defendants’ part in taking the corporate check for value.” It held that under those circumstances the plaintiff could not recover from the payees on the theory of “payment of a thing not due,” under LSA-C.C. art. 2301.

According to plaintiff’s pleadings, the payment which was made to Miller in the instant suit was to satisfy a debt which was owed to him by Perry. Miller thus did not receive something which was not due him. The check was not forged, but instead it was signed by an officer who had authority to make withdrawals from the account of the corporation. Miller accepted and cashed the check in good faith, and the check obviously was honored by the drawee bank. Under those circumstances we agree with the trial judge that plaintiff’s pleadings fail to state a cause of action against defendant Miller.

We find no merit to plaintiff’s argument that he has alleged “particular damages by the illegal transfer of funds, since he has endorsed the note and is made to pay the money back to the bank. . . . ” Plaintiff does not allege that he actually has paid the debt to the bank, but even if he had made that payment and suffered such a loss, he would have no cause of action against Miller, who received and cashed a valid check from the corporation, in good faith and for value.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    James A. CARTER, Plaintiff and Appellant, v. ROY O. MARTIN INDUSTRIES, INC., Defendant and Appellee.
    No. 5541.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Rehearing Denied Sept. 20, 1976.

      Bolen, Halcomb, Bolton & Erwin by James A. Bolen, Jr., Alexandria, Smith, Tal-iaferro, Seibert & Boothe by J. W. Seibert, III, Jonesville, for plaintiff and appellant.
    Gold, Hall, Hammill & Little by Eugene J. Sues, Alexandria, for defendant and ap-pellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, James A. Carter, brought this action against his former employer, Roy O. Martin Industries, Inc., defendant-appellee, to recover benefits under the Workmen’s Compensation Act, for total and permanent disability, and penalties and attorney’s fees. The District Court awarded plaintiff benefits for temporary total disability and penalties and attorney’s fees. Plaintiff has appealed seeking a judgment declaring him totally and permanently disabled and increasing his attorney’s fees. We affirm.

Plaintiff was employed by defendant, Roy O. Martin Industries, Inc., in the capacity of a welder. All parties agree that he was injured in the course and scope of his employment on October 13, 1973, on which date he fractured his left wrist, left elbow, and bruised his left knee. Plaintiff was paid compensation benefits for approximately three weeks, after which time he returned to work with his left arm in a cast. Mr. Carter continued in his job as welder for the defendant until July 29, 1974, at which time he was terminated for reasons unrelated to his prior accident.

Plaintiff’s basic contention is that although he is able to perform the duties required by his employment, he suffers from considerable pain in so doing as a result of his accident.

Plaintiff was examined and treated a number of times following his injury by Dr. R. J. Beurlot, Jr., an orthopaedic surgeon in Alexandria, Louisiana. Doctor Beurlot initially examined Mr. Carter on November 6, 1973, and discovered a break in the small bone of the left wrist and a radial head fracture of the left elbow. Doctor Beurlot treated Mr. Carter for the fractures. On January 4, 1974, he found the wrist and the contusion to the left knee improved, but discovered that the patient-still suffered from discomfort in the injured elbow. After an examination of February 13, 1974, Doctor Beurlot determined that Mr. Carter’s only area of discomfort was in the left elbow. On March 27, 1974, the physician discharged plaintiff to return to his regular duties at Roy O. Martin Industries.

Doctor Beurlot next examined Mr. Carter on August 13, 1974, and found that the plaintiff complained of continued pain in the left elbow, wrist, and knee. His x-ray examination showed good position and alignment of the radial head fracture of the elbow, and the x-rays of the left knee and left wrist were negative. At that time Doctor Beurlot diagnosed the source of plaintiff’s complaints as residuals of the radial head fracture of the elbow. He found no evidence of chondromalacia and concluded that plaintiff suffered from no disability relative to his knee. On the date of his final examination Doctor Beurlot was of the opinion that plaintiff should be able to resume all of his former work duties. This physician felt that if any chondromala-cia had been present in plaintiff’s left knee as a result of the accident some symptom of the injury should have manifested itself in the period of nearly a year in which he treated plaintiff following the accident.

Mr. Carter was next examined and treated by Dr. J. T. Weiss, an orthopaedist in Alexandria, Louisiana. Doctor Weiss examined plaintiff on October 25, 1974, and had an arthrogram performed on him on November 11, 1974. Doctor Weiss did not testify, but his reports were admitted into evidence at the trial. In his report of November 19,1974, the physician concluded as follows:

. . The arthrogram was negative and showed no abnormalities. This would mean that most likely there are no torn menisci and the anterior cruciate ligaments should be intact. Mild chon-dromalacia of the condyles would not show on an arthrogram.
My final impression in regard to the left knee is that he could have some mild chondromalacia of the medial femoral condyle but this could not be diagnosed except through exploration, in other words an arthrotomy of the knee would have to be carried out for visualization. The left elbow percent of physical impairment and loss of physical function would certainly be very minimal and certainly less than five percent . . .”

Plaintiff was finally examined by Dr. Edwin Caldwell Simonton, an orthopaedic surgeon in Shreveport, Louisiana, who testified by deposition. Doctor Simonton saw Mr. Carter on May 7, 1975, and again on October 29, 1975, at the request of plaintiff’s attorney. The physician was of the opinion that plaintiff suffered from a radial head fracture of the left elbow which was healing and found some chondromalacia of the left patella, which he felt was probably traumatic in origin. Doctor Simonton concluded that plaintiff’s symptoms were causally related to his accident of October 13, 1973. He felt that excessive strenuous activity of the left knee and elbow would cause discomfort and pain to Mr. Carter in the future. However, Doctor Simonton was of the opinion that at the time of his last examination plaintiff was physically able to return to the type of employment in which he was engaged at the time of his accident.

The medical evidence presented in this litigation is obviously inconclusive regarding the extent, if any, of plaintiff’s disability. Several lay witnesses also testified.

Marion Ansel Cooley, plaintiff’s son-in-law, testified that he assisted Mr. Carter in the process of building a five room dwelling in which the latter now resides. This house was built by plaintiff and Mr. Cooley after the accident. The witness testified that plaintiff had difficulty with the work and complained of pains in his left leg and elbow and was forced to stop and rest from time to time.

Plaintiff’s wife also assisted him in the construction of the house and testified that Mr. Carter was in much pain and limped after the accident. She also stated that he experienced difficulty in the task of constructing the house.

Plaintiff testified that although he performed essentially the same job functions after his accident he experienced pain in attempting to carry out his duties subsequent to his injury. He stated that he complained to his shop foreman about pain several times. However, Mr. Carter admitted that although he was allegedly working in pain he consulted no physicians between the months of April and August, 1974, nor did he attempt to see a doctor between August and October of that year. After his termination by his employer he was offered another welding job which he stated he refused solely because it involved working with creosote, with which he was incompatible.

Several of plaintiff’s supervisors and coworkers testified. Marvin Joseph Brous-sard, shop foreman for Roy 0. Martin Industries, stated that he recalled instances in which plaintiff complained of his elbow during the period in which a cast was on the arm. However, the witness could not remember any complaints made by Mr. Carter after the cast was removed. He further stated that to his knowledge plaintiff had no unusual difficulty in performing his job. James R. Satcher, a former co-worker of plaintiff’s, testified that plaintiff did complain about pains in his leg and arm but also could not recall any times in which Mr. Carter complained of pain after his cast was removed. Allen J. Mayeux, also a welder for Roy 0. Martin Industries, stated that to the best of his knowledge plaintiff complained once in a while about pains in his arm and also stated that his knee bothered him on a couple of occasions. Mr. Mayeux testified that plaintiff did not favor his left arm or leg. Mr. Melvin 0. Cody, the plant superintendent for Roy 0. Martin Industries, testified that plaintiff’s job required that he weld outside the welding shop from time to time but that the welders were not required to carry their equipment up onto scaffolds and other high places.

Louisiana’s “work-in-pain” rule has been well stated in the case of Jones v. Woodson Construction Company, Inc., 213 So.2d 151 (La.App. 3rd Cir. 1968):

“A compensation claimant will not be held to be disabled and thus entitled to compensation benefits solely because he suffers some residual pain or discomfort when he attempts to work following an industrial accident. The residual pain or discomfort which he suffers will be considered as being disabling only if it is substantial enough or sufficiently intense that it either prevents the worker from carrying out some of the functions of his job, or where the pain is not so intense as to hinder the worker’s fulfillment of his duties, it must be shown that performance of the work would be deleterious to his health. Glidden v. Alexandria Concrete Company, 242 La. 626, 137 So.2d 894 (1962); Taylor v. Meeker Sugar Cooperative, Inc., 177 So.2d 140 (La.App. 3rd Cir. 1965); Price v. Walgreen’s Company, 204 So.2d 67 (La.App. 4th Cir. 1967);” (Further numerous cases omitted.)

In order to be disabling a workmen’s compensation claimant’s pain must be substantial. Reeves v. Russo, 302 So.2d 332 (La.App. 1st Cir. 1974); Grigsby v. Argonaut Insurance Company, 297 So.2d 698 (La.App. 1st Cir. 1974); Falgoust v. Jefferson Parish School Board, 294 So.2d 594 (La.App. 4th Cir. 1974), writ refused, La., 296 So.2d 836.

Our law is well settled for the proposition that the plaintiff in a workmen’s compensation suit bears the burden of proving the facts relative to his disability by a preponderance of the evidence. Alfred v. Travelers Insurance Company, 322 So.2d 872 (La.App. 3rd Cir. 1975); Bryant v. Magnolia Garment Company, Inc., 307 So.2d 395 (La.App. 2nd Cir. 1975); Lantier v. Guy Scroggins, Inc., 223 So.2d 252 (La.App. 3rd Cir. 1969).

The determination of whether pain is substantial enough to be disabling to a workmen’s compensation claimant is a question of fact. Holmes v. Morville Plantation, Inc., 314 So.2d 752 (La.App. 4th Cir. 1975); Dupard v. M & C Construction Company, 312 So.2d 660 (La.App. 4th Cir. 1975).

In his written reasons for judgment the District Judge stated:

“The plaintiff contends that he worked in constant pain from the date of the accident until his discharge. However, the Court is of the opinion that the evidence does not sustain this position. Mr. Carter’s family all testified that he worked in pain, however, the defendant summoned numerous co-employees of the plaintiff, none of whom could recall his making any complaints to them. Some of them did recall that he complained of pain during the time that his arm was in a cast, however, none of them could recall any complaints of pain made by Mr. Carter after March 27,1974. The Court is of the opinion that the evidence fails to establish this point by a preponderance, and, accordingly, on the point judgment is rendered for the defendant.”

After a careful review of the evidence we are of the opinion that a reasonable basis exists therein to support the trial judge’s finding that plaintiff failed to prove by a preponderance of the evidence that he was forced to work in such pain as to render him disabled. See Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The District Judge awarded plaintiff the sum of $1,500.00 as attorney’s fees pursuant to LSA-R.S. 23:1201.2. Plaintiff contends that said award is inadequate and should be increased.

In determining the amount of penalties and attorney’s fees to be awarded in workmen’s compensation cases great discretion is afforded the trial court. See Tullier v. Ocean Accident and Guarantee Corporation, 141 So.2d 521 (La.App. 4th Cir. 1962), and Whatley v. Lummus Company, 243 So.2d 922 (La.App. 3rd Cir. 1970) (wherein we also affirmed the trial court’s award of $1,500.00 for attorney’s fees in a workmen’s compensation case.)

Viewing the $1,500.00 award of attorney’s fees in the factual context of this case and considering the broad discretion which is afforded the district judge in such matters, we find that said award is neither inadequate nor excessive and hereby affirm same.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . The trial judge awarded plaintiff compensation benefits to cover the period from October 13, 1973, until March 27, 1974, with credit for benefits already paid, and $1,500.00 as attorney’s fees. Defendant-appellee has neither appealed nor answered the appeal.


text:
    Clarence FONTENOT et al., Plaintiffs-Appellants, v. Donald SOILEAU, Defendant-Appellee.
    No. 5548.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Rehearing Denied Sept. 20, 1976.

      White & Pitre by Joshua J. Pitre, Opelou-sas, for plaintiffs-appellants.
    Donald Soileau, Mamou, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

This is a suit for personal injuries sustained by plaintiff’s minor son when he fell from or was thrown from a horse owned by defendant. The defendant filed a motion for summary judgment which was granted and plaintiff has appealed. We affirm.

The allegations set forth in the petition are summarized as follows: that on November 14, 1974, plaintiff’s minor son, Mitchell Fontenot, was employed by defendant to exercise his horses and do other odd jobs; that while Mitchell was riding defendant’s horse, it began to buck and became uncontrollable, throwing Mitchell to the ground, causing him very severe injuries; that defendant knew of the dangerous propensities of this particular animal, yet failed to warn and advise Mitchell of these propensities, but instead had [sic] him to believe that the animal was gentle. Defendant contends that the deposition of Mitchell Fontenot shows that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law.

Mitchell’s father filed an affidavit in opposition to the motion for summary judgment stating that the defendant did know that the horse which caused Mitchell’s injuries had vicious and uncontrollable propensities and that the same was never revealed to Mitchell. Furthermore, in his affidavit, Clarence Fontenot stated for the first time that, as owner of the horse which caused Mitchell’s injuries, defendant is strictly liable for the damages caused by his horse. Therefore, the two issues to be resolved are (1) whether defendant is strictly liable to plaintiff for his injuries, and (2) whether defendant was guilty of negligence which proximately caused Mitchell’s injuries.

I. STRICT LIABILITY

plaintiff contends that the present case is governed by the holding in Holland v. Buckley, 305 So.2d 113 (La.1974). The Supreme Court summarized its holding therein as follows:

“We hold, therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.”

We agree with the trial court that Holland is distinguishable from the present case. As stated by the court in Holland:

“The underlying reason for the owner’s liability is that, as between him who created the risk of harm and the innocent victim thereby injured, the risk-creator should bear the loss. He maintains the animal for his own use or pleasure.”

In Holland, the victim of the dog-bite was an innocent bystander. In the instant case, plaintiff was paid to do a job which encompassed the precise risk of harm that befell him, i. e., being thrown from a horse. The deposition of Mitchell, the person in the best position to know, supports the conclusion that nothing unusual happened to cause the horse to behave as he did, and that such behavior can be expected from horses when they want to run and are held back by the rider. The deposition further establishes that Mitchell had exercised race horses at a track for three (3) months prior to working for defendant, and had been working with defendant’s horses for three (3) months prior to the accident. Under the facts of this case, Mitchell, an experienced rider who was used to working with race horses, was more a consenting victim than an innocent victim.

The following quotation from Holland, supra, presents a further ground of distinction:

“Article 2321 places the master of the animal under a legal obligation to keep his animal under such guard that it does no damage to others. A fault in this obligation to control the animal and guard others from harm by it entitles the victim to recover damages thereby sustained.”

This rule of law is inapplicable to the instant case. Here, the horse was under the care, custody and control of the “victim,” Mitchell, and not the defendant-owner. What occurred was a natural and ordinary risk of his employment as is evident from Mitchell’s own testimony. Nothing to the contrary was even suggested by way of opposition to the motion for summary judgment.

II. NEGLIGENCE

Holland v. Buckley, supra, states that the owner’s liability under Article 2321 is, “as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316.” This article provides that, “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” A comprehensive summary of the decisions wherein the fault or negligence of the owner was at issue is contained in the case of Holland v. Buckley, supra. In Holland, Justice Tate noted that these decisions fall into three main categories: (1) those which allow the victim to recover from the animal owner upon proof of the dangerous propensities of the animal and the owner’s presumed knowledge thereof; (2) those which hold that the harm caused by the animal creates a presumption of fault on the part of its owner, which places a burden upon the owner to show that he is free from even the slightest fault; and (3) those which hold that, in order to recover damages caused him by the accident, the victim has the burden of proving both the existence of a dangerous propensity of the animal inflicting the injury and also knowledge of such propensity on the part of the owner.

We realize that the cases cited as illustrative of these categories were overruled in Holland, but it is our understanding that these cases were overruled only insofar as they represent incorrect judicial interpretations of Civil Code Article 2321. Apparently, they are still viable at least for the purpose of providing guidelines for the determination of whether a defendant is negligent under Article 2316.

After reading the deposition offered in support of the motion for summary judgment, we are convinced that the plaintiff has failed to show that the defendant is guilty of any fault whatsoever. In his deposition, Mitchell Fontenot stated that he had been riding horses for about five (5) years (since he was about twelve years old) and began riding horses for pay when he was sixteen (16) years old. His first employment was at Evangeline Downs where he worked as an exercise boy. His answers to the deposition questions show that he knew how to handle horses and was aware that race horses are more spirited and move more quickly than other horses. ' After three (3) months ■ at Evangeline Downs, Mitchell went to work for the defendant, who owned several racing quarter horses. He had worked for the defendant for three (3) months before he fell from the horse. As part of his employment, Mitchell would gallop the horse he fell from, as well as other horses belonging to the defendant, about twice a week. During his employment he saw the defendant only twice and saw the defendant in the area where the horses are kept on only one occasion. He and the defendant never discussed the horses. Mitchell worked with the horses each day. He fed them, led them to the electric walker wheel, and, unless there was someone to help him, he saddled the horses by himself. The record supports Mitchell’s statement that he knew the horses better than the defendant did.

Mitchell testified that Beggar’s Image, the two year old stallion he fell from, was “a normal horse,” and as gentle as the other horses. He never complained about the behavior of Beggar’s Image. The testimony relating to the accident itself is as follows:

“Q What time of the day was this?
A It was about 7:30.
Q In the morning?
A Yeah.
Q Was the sun shining?
A A little.
Q It was daylight?
A Yeah.
Q Your daddy put you on the horse near the barn?
A Yes, sir.
Q And then what happened?
A Well, I led him to the track.
Q You rode him to the track, you didn’t actually lead him? To me, lead him would mean you were walking in the front?
A I rode him to the track.
Q You rode him to the track — o. k.?
A And he was galloping.
Q You were galloping him?
A Yeah, and when I made this turn, he started acting up. Playing with his head, and doing — you know, acting up. He started going good again and he started playing with his head and he lugged in.
Q He lugged in?
A Yeah.
Q And about how far after he had played with his head that he lugged in that you fell — about how far from?
A Well, he started playing with his head in that turn.
Q In the turn?
A Yeah, and when I got straight, he started playing with it again and that is when he turned
Q He turned?
A Yeah, he lugged in.
Q And then what happened?
A Then I fell.
Q You slipped off the saddle?
A Yes, sir.
Q Did your foot slip out of the stirrup?
A Well, my whole self went down.
Q Did the horse do anything — what did the horse do after that?
A Took off running, he went at the barn.
Q He went back to the barn?
A Yeah.
Q And you fell on the ground?
A Yeah.
Q Did he shake his head and turn a lot or just a little bit?
A No, he was just playing with it a little bit, like this (motioning with head).
Q Was it like he was feeling good?
A Yeah, feeling good.
Q Had he ever done that before, shake his head like that?
A No, sir.
Q You had a bit on him, huh?
A Yeah.
Q Bridle?
A Yes, sir.
Q Did you ever have a horse to do that with you before?
A No, sir.
Q Shake his head like that?
A Well, that big filly did.
Q That big filly, is that the one we can’t name?
A Yes.
Q She would do that often?
A Just that time when I went at the track with her.
Q The time she threw you?
A Yes, sir.
Q She did that too?
A Yes, sir.
Q Is it cause they wanted to run?
A Well, yeah, I guess so.
Q It is not anything unusual?
A No.
Q What?
A I guess it is because they wanted to run.
Q As you train them, the more we train them, the more they wanted to run?
A Yes, sir.
Q That was what would happen to all our horses that we were training, huh?
A Yes, sir.
Q As we would work them up, they would get more and more in the spirit of running?
A Yes, sir.
Q And did he want to run that day?
A Yes, sir.
Q And you were trying to keep him from running?
A Yes, sir.
Q You were trying to make him gallop and not run?
A Yes, sir.
Q And then he threw you?
A Yes.
(Tr. pp. 33-36)
Q And you had ridden him a lot of times before that?
A Yes, sir.
Q Would you say it is anything that that horse did that was unusual that made you fall?
A Well, when he lugged in.
Q When he lugged in?
A Yes.
Q And this is not unusual, a lot of horses lug in?
A Yeah, a lot of horses lug in.
Q This is something that happens often?
A Yeah.
(Tr. pp. 36-37)
Q Do you know of anything that I knew about this horse that you didn’t know about him?
A No, sir.
Q Would it be fair to say that you probably knew this horse much better than me?
A I knew him better than you.
Q And probably better than Mr. Merton because you rode him, huh?
A Yeah.
Q Did I ever encourage you to believe that this horse wouldn’t throw you?
A No, sir.
Q Did anybody ever tell you anything about this horse?
A No, sir.
Q Do you know if this horse had ever thrown anybody else before?
A No, sir.
Q Did anybody ever tell you that this horse was gentle?
A No, sir.
Q Did anybody ever tell you it was a wild horse?
A No, sir.
Q He wasn’t a wild horse, was he?
A No, sir.”
(Tr. pp. 38-39)

It is apparent to this court that by Mitchell’s own admission, the defendant never led him to believe that the horse was gentle. On the contrary, Mitchell and the defendant never even discussed the horse. This court is also convinced that there is no evidence that the horse had dangerous or vicious propensities. Mitchell’s account of the accident supports the conclusion that the horse’s behavior was not in any way unusual. Mitchell was being paid for a job that entailed certain natural and ordinary risks, such as being thrown from a horse. He knew that it took a good rider to handle the horses and considered himself such.

We conclude that there is no evidence that the horse Mitchell fell from had vicious or dangerous propensities which were concealed from him; that the harm suffered by Mitchell was encompassed by the natural and ordinary risks of his occupation; and that Mitchell assumed the risk of exactly what occurred when he accepted employment.

In the only section of the affidavit in opposition to the motion for summary judgment relevant to the issue of negligence, Clarence Fontenot, Mitchell’s father, states, “That defendant did know that the horse which caused Mitchell Fontenot’s injuries had vicious and uncontrollable propensities and the same was never revealed to Mitchell.” This statement merely reiterates the allegation of the petition. In order to be sufficient to defeat the motion for summary judgment, it is incumbent upon the opponent to produce opposing affidavits or depositions indicating that there is a factual basis for dispute with the mover’s showing. The opponent must set forth specific facts showing that there is a genuine issue for trial. Thomas v. Otwell, 234 So.2d 475 (La.App. 3rd Cir. 1970), writ refused; Dobbs House, Inc. v. Hastings, 265 So.2d 294 (La.App. 4th Cir. 1972). Since plaintiff has not complied with this requirement, his affidavit is not sufficient to defeat the motion for summary judgment.

Although this issue was not raised in the trial court or on appeal, we feel that plaintiff’s remedy lies in workmen’s compensation which is exclusive of all other rights and remedies. The record clearly establishes the employment relationship between Mitchell and the defendant, and, although farming operations are not hazardous per se, the evidence pertaining to Mitchell’s connexity with the electric walking wheel is sufficient to warrant a finding of a hazardous occupation. Although we do not choose to rule on the issue, it would seem that, since Mitchell’s accident apparently falls within the purview of the statute, his exclusive remedy is workmen’s compensation.

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

AFFIRMED.


text:
    Harold LOEWER et al., Plaintiff s-Appellants, v. Clyde P. VANDERHIDER, Defendant-Appellee.
    No. 5551.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Rehearing Denied Sept. 20, 1976.
    Writ Refused Dec. 1, 1976.

      Edwards, Stefanski & Barousse by Homer Ed Barousse, Jr., Crowley, for plaintiff s-appellants.
    Donald Soileau, Mamou, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

Harold Loewer and Louisiana Implement Company, Inc. instituted this suit against Clyde P. Vanderhider for a money judgment. The plaintiffs seek to recover the sum of $8,149.70, together with interest and attorney’s fees, subject to an alleged $2,000.00 payment. From a judgment dismissing their suit, the plaintiffs have perfected this appeal. We affirm.

Vanderhider, an Evangline Parish farmer, periodically purchased farm equipment from Louisiana Implement Company. Plaintiff, Loewer, was president and principal stockholder of the implement company. However, during the period of time that the defendant did business with the company, Loewer was not participating in the daily affairs of the business. The business was being conducted by its manager, James Rhimes. While doing business with the implement company, the defendant purchased some twenty (20) to twenty-five (25) pieces of farming equipment. He paid cash for some items and purchased others on credit. The defendant testified that he also had an open account with the company and would make periodic payments on this account.

The implement company sold its credit paper to Commercial Credit Equipment Corporation of New Orleans. Loewer testified that he personally executed a continuing guaranty to indemnify CCEC against any loss occasioned by customers of Louisiana Implement Co., Inc. However, no guaranty agreement was entered into evidence. At times, Loewer actually endorsed notes to CCEC, while at other times, Rhimes was the endorser.

Plaintiffs contend that in February of 1972, CCEC held three of Vanderhider’s outstanding mortgage notes. One was dated June 17, 1967; the second was dated April 29, 1967; and the third was dated December 6, 1966. The outstanding balance on these accounts supposedly amounted to the sum of $7,997.66, together with $152.04 owed in interest. Loewer paid these amounts to CCEC. Plaintiffs allege that CCEC, instead of mailing the notes to them, erroneously returned the notes to Vanderhider and that Vanderhider must now reimburse them for the amount paid.

The plaintiffs introduced into evidence a $5,000.00 check dated January 25, 1972, which was returned because of insufficient funds. The check was allegedly drawn on the defendant’s account and made payable to the order of CCEC. The defendant denies any knowledge of having written the check, although he testified that the handwriting on the check looked like his.

Plaintiffs allege that the last payment made by defendant was on February 9, 1972, in the amount of $1,500.00. In order to substantiate their contention, plaintiffs introduced into evidence an undated handwritten note addressed to CCEC, purporting to transmit a check for $1,500.00 and allegedly signed by defendant. Defendant testified that the instrument was not in his handwriting and that he did not remember writing a $1,500.00 check.

Loewer contends that after paying CCEC, he received a $2,000.00 payment from the defendant. He produced a bank deposit slip dated March 8, 1972, showing the deposit of a Vanderhider check in the sum of $2,000.00. Vanderhider said that he owed a large sum of money and made many payments but he could not remember any specific payments.

Defendant further testified that he did not believe that he owed anything to the implement company. Defendant’s records were destroyed when his house burned down two (2) years before the trial.

Loewer testified that he could not say that the defendant owed the money in question, but that he just took the word of CCEC that the accounts were outstanding.

Mr. William Bufkin, the present manager of CCEC who was not employed at the time any of the described transactions occurred, testified that from the office records, he was unable to ascertain whether Loewer or Rhimes endorsed the notes in question or if the endorsements were with or without recourse. Loewer testified that he was not the endorser of the notes in question.

The evidence shows that under the general procedure used by CCEC, when a note was paid it .was returned to the dealer. Bufkin testified that 90% of the time the notes were returned to the dealer. He also testified that he does not know who received the notes in question. The evidence discloses that the notes were cancelled in the Evangeline Parish recorder’s office two (2) days after they were mailed from the offices of CCEC. Loewer denied receiving the notes although he paid to CCEC from his personal funds the sum of $8,150.00 to be applied to the outstanding accounts of the defendant.

The trial court concluded that the three (3) notes in question were returned by CCEC to the defendant. We must give great weight to this factual conclusion. Canter v. Koehring, 283 So.2d 716 (La.1973); Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1976).

Ordinarily the burden of proof rests on the party who pleads the defense of payment of a promissory note. Hughes v. Hughes, 170 So.2d 251 (La.App.4th Cir. 1965), and the cases therein cited; and Termplan Arabi, Inc. v. Rodney, 288 So.2d 874 (La.App.4th Cir. 1974), and the cases therein cited. However, when a promissory note is returned to the maker, the presumption is that it has been paid, and the burden of proof shifts to the payee or holder to prove that it has not been paid. Hughes v. Hughes, supra, Sullivan v. City of Denham Springs, 224 So.2d 490 (La.App.1st Cir. 1969); Termplan Arabi, Inc. v. Rodney, supra. The presumption of payment is not conclusive but may be rebutted. Martin v. Himel, 174 La. 281, 140 So. 478 (La.1932).

The plaintiff could offer no evidence to show that the alleged indebtedness of the defendant was still outstanding.

The testimony shows that the defendant made payments to Rhimes whose accounts receivable records were incomplete. There is no way for us to know whether these payments were transmitted to CCEC. Although he possessed knowledge of facts pertinent to the issues in litigation, Rhimes was not called as a witness. His unexplained absence creates a presumption that his testimony would be adverse to the plaintiffs. Tillman v. Canal Ins. Co., 305 So.2d 602 (La.App.1st Cir. 1974) writ refused; Thibodeaux v. Fireman’s Fund Ins. Co., 325 So.2d 318 (La.App.3rd Cir. 1975).

In the case of Hughes v. Hughes, 170 So.2d 251 (La.App.4th Cir. 1964), the court quoted from the reasons of the trial judge. This quotation mirrors our thoughts about the present case; it reads as follows:

“I don’t suppose the Court will ever know, to it’s complete satisfaction, whether the debt was ever paid, but all this Court can hope to do is approximate justice * * *.”

We find that the plaintiffs have failed to discharge the burden of proof required of them and accordingly the presumption of payment must prevail. “The function of prima facie presumption is to operate as the prevailing factor in situations otherwise left in irreconcilable conflict, and impossible of absolute decision factually.” Hughes v. Hughes, supra.

For the foregoing reasons, the judgment in favor of defendant, rejecting plaintiffs’ demands, is affirmed at appellants’ costs.

AFFIRMED.