author: LEMMON, Judge.

text:
    Leonard M. LEBRUN v. BARNARD AND BURK, INC. and Fireman’s Fund American Insurance Company.
    No. 7561.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.

      Sutterfield & Vickery, James R. Sutter-field, New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, James L. Donovan and Paul M. Batiza, New Orleans, for defendants-appellees.
    Before LEMMON, SCHOTT and MORIAL, JJ.
   LEMMON, Judge.

In this appeal by both sides from a judgment awarding plaintiff workmen’s compensation benefits, defendants question the finding of total and permanent disability based on traumatic neurosis, and plaintiff complains of failure to award penalties and attorney’s fees. The principal issue in defendants’ appeal is whether the record evidence supports a finding that the industrial accident caused or aggravated any psychological. condition so as to render plaintiff disabled within the contemplation of the workmen’s compensation act.

Plaintiff began working for defendant on June 14, 1974. Nineteen years old and a recent high school graduate, plaintiff had worked part time in a supermarket during his senior year before quitting after an argument with the manager and had worked in an automobile body shop for three weeks before quitting to take a job with defendant at a substantially higher rate of pay.

Plaintiff was hired by defendant through the boilermaker’s union and was scheduled to learn welding, but he was initially assigned work chipping insulation from the inside wall of a boiler. On his second day on the job he fell from a scaffold and sustained strain of the back and shoulder, contusion of the forearm, and multiple abrasions. He was checked at the hospital that day and two days later, and was then instructed to return to work.

After returning to limited duties for two days, he consulted an attorney, who referred him to a general surgeon. The doctor treated him, primarily for back complaints, through October 19, 1974, at which time both the treating physician and an orthopedic consultant opined that he had completely recovered from the injuries and was fit to return to work.

Plaintiff did not return to work, but on November 20, 1974 consulted a psychiatrist by arrangement through his attorney. The psychiatrist diagnosed a clinically overt depressive reaction, attributable to the accident, which impaired his ability to return to the same type of work. This diagnosis was based substantially on the doctor’s conclusion that plaintiff’s having “blown his chance for a worthwhile job” intensified his pre-existing feeling of inadequacy and incompetency. In addition to the signs of depression, the doctor also noted plaintiff’s statements that his weight had dropped from 330 to 280 pounds following the accident, that he had attempted suicide by taking 25 sleeping pills, and that in a fit of temper he purposefully ran his car into a tree.

Weekly interviews during December confirmed the psychiatrist’s initial impression as to plaintiff’s depression. Further noting long-standing personality traits of impulsiveness and irritability, as well as the feelings of inadequacy and incompetency which probably stemmed from his parents’ marital breakup, the doctor recommended extensive evaluation in a hospital setting to attempt controlling plaintiff’s impulsiveness and to explore his depressions. Plaintiff refused.

During December plaintiff obtained employment as a deckhand on a dredge boat, but quit after two days because of his fear of climbing a ladder. On December 31 he was rushed by his mother to a hospital when she found him sleeping in a car after he had taken some muscle relaxant pills. He told the psychiatrist in the hospital several days later that he took five pills (his trial testimony was 20), that he often took that many “nerve pills”, and that he had intended to take pills for nervousness before going back to his girl friend’s house but simply took the relaxants by mistake. The psychiatrist did not observe any overt signs of depression.

On January 13,1975, when plaintiff again refused hospital evaluation, the psychiatrist advised plaintiff he could no longer be responsible for him without hospitalization. Plaintiff had no further medical consultations before the trial two months later.

Plaintiff’s claim for disability benefits is based entirely on his inability to work because of a depressive condition causally related to the accident. Plaintiff testified that he is afraid of climbing and generally is afraid of working because it “seems like if I get a job I start looking at the ways I can get hurt”. And the psychiatrist opined that this stressful event (the accident) intensified plaintiff’s pre-existing personality traits and feelings of inadequacy and in-eompetency so as to render him incapable of working.

Evidence as to a neurotic disability must be closely scrutinized because of the nebulous and subjective nature of the disability. Smith v. Wiley Wood Constr. Co., 247 So.2d 904 (La.App. 4th Cir. 1971). A traumatic neurosis is an emotional illness which has its onset after a predisposed person sustains physical trauma. The pertinent inquiry is whether the neurosis would have occurred except for the trauma. In order to determine whether the trauma was the precipitating cause of the neurosis and thus the basis for legal liability, it is essential to compare such factors as the claimant’s behavior and work record before and after the trauma and to determine whether the patient was well and functioned normally until after the stress of the accident.

In the present case the psychiatrist’s opinion as to causation was based solely on facts related to him by plaintiff and his use of “psychiatric feeling”. Significantly, the facts related by plaintiff were largely uncorroborated and to some extent contradicted.

The emergency room records show plaintiff’s weight to be approximately the same at the time of the accident as his weight at the time of psychiatric consultation, thus refuting plaintiff’s claimed weight loss. Only plaintiff testified as to the alleged sleeping pill incident in September, and his story that his mother found him and just let him sleep for three days without medical consultation is implausible. Furthermore, plaintiff gave the only testimony as to the car smashing incident in his fit of temper, and he didn’t mention that incident or the sleeping pill episode to the treating physician. Significantly, each incident occurred right after plaintiff had arguments with his girl friend. In this regard, plaintiff told the doctor that the girl had set a date for their marriage, but the girl denied this. Additionally, the psychiatrist concluded that the depression was caused by plaintiff’s “having blown it — i. e., his prospect of marriage and of starting in a lucrative trade”, but the girl denied that they were ever engaged, thus casting more doubt upon the information furnished by plaintiff to the psychiatrist. Finally, the December incident involving the muscle relaxants (which also took place in relation to a visit to the girl’s house), was characterized by plaintiff himself as a mistake in taking the wrong medicine.

Psychiatric opinion formed exclusively from a claimant’s statements is valid only insofar as the claimant relates an accurate account of the pertinent happenings. Smith v. Wiley Wood Constr. Co., supra. The statements relied on by the psychiatrist in this case were largely inaccurate, unreasonable or uncorroborated at trial. The case is further weakened by the lack of a prior consistent work history and the absence of evidence of changes in personality after the accident. Moreover, as to causation it is at least equally probable that any overt signs of depression observed by the psychiatrist in November and December were caused by his contemporary romantic disappointment as by the effects of the June accident.

Plaintiff’s only complaint reasonably supported by the overall record was his fear of climbing. But even considering the psychiatrist’s testimony as to this fear and the trial judge’s acceptance of that uncontra-dicted testimony, the evidence does not show that this condition disabled plaintiff within the contemplation of the workmen’s compensation act. Plaintiff was an unskilled laborer, whose training at chipping had taken only a few minutes and who was in his second day on the job. There is no showing that inability to climb because of a psychological condition placed plaintiff at a substantial competitive disadvantage on the common labor market. Furthermore, he admittedly had no fear of driving on expressways or of doing other dangerous tasks associated with laboring jobs.

We conclude that plaintiff simply failed to prove any compensable disabling condition causally related to the accident.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that plaintiff’s petition be dismissed. Each party is to bear its own costs.

REVERSED AND RENDERED.

      . After both parties timely applied for a new trial from the original judgment and the trial court denied both applications, the court rendered an amended judgment, which modified the original decree by awarding certain expert fees (apparently in response to a motion to tax costs), but which also reiterated the original judgment as to the merits of the case. Plaintiff appealed on the last day for filing an appeal from the original judgment. Defendant filed a subsequent appeal, which although untimely as an independent appeal from the original judgment was timely as an answer to plaintiffs appeal.

      . In casual conversation at an unrelated chance meeting between the attorney and the orthopedic consultant, it was mentioned that plaintiffs persistent complaints of back pain without orthopedic findings and his apparent fear of returning to work might make a psychiatric evaluation “worthwhile exploring”.

      . Plaintiff told him “he and his fiancee” split up when his irritability increased after the accident.


source: Caselaw Access Project

author: BOUTALL, Judge. MORIAL, Judge,

license: Public Domain

text:
    SOLAR GENERAL CONTRACTOR, LTD. v. URBAN REDEVELOPMENTS, INC.
    No. 7756.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.

      Tucker, Schonekas & Garrison, Russell J. Schonekas, Louis G. Dutel, Jr., William J. Dutel, New Orleans, for plaintiff-appellee.
    Albert J. Huddleston, Kenner, for defendant-appellant.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

On January 5, 1973 Solar General Contractor, Ltd. (Solar), entered into an agreement to purchase thirty lots of ground in Chateau Estates, Jefferson Parish, from Urban Redevelopments, Inc. (Urban), for the total price of $772,430.00. At the execution of the agreement, Solar gave Urban a cash deposit of $36,121.50 and a promissory note for $36,121.50 due and payable before January 1, 1975. The agreement provided that upon completion of certain off-site improvements, the date for the act of sale would be set at which time Urban was to deliver to Solar “a clear and merchantable title”, and the failure to do so would render the agreement null and void. Improvements were completed later than anticipated, and Urban demanded that Solar take title. Solar refused to take title and filed suit for the return of its deposit and its promissory note, contending that Urban breached the contract because title to the property is not merchantable.

This refusal came about when Solar’s notary obtained certificates from the Clerk of Court and Ex-Officio Recorder of the Parish of Jefferson on the lots to be acquired. The mortgage certificate showed an inscription of a “Notice of lis pendens” in a suit entitled “Robco, Inc. v. Urban Redevelopments, Inc., et als.” # 152-169 on the Docket of the 24th Judicial District Court. That suit is a possessory action by Robco seeking a permanent injunction against Urban and others, the owners and developers of the subdivision of which these lots form part, to prevent them from trespassing on certain immovable property, the ownership of which is claimed by Robco. Robco’s property consisted of canals which completely circumscribe the perimeters of the parent subdivision and over one of which Urban constructed a concrete roadway, Chateau Blvd., now a dedicated public roadway.

The suit is not concerned directly with the title of the lots sought to be sold herein, but because of the circumscription of the subdivision by the canals, there will be no access to the subject lots except through sufferance of Robco. Thus, a successful resolution of the suit is a necessity in order to use the subject lots. Demand to take title was made on January 21, 1974, and refusal to take title was made January 31, 1974. The rights of the parties are thus governed by the situation which crystallized at that time period, although subsequent developments have changed the overall situation. At the pertinent time, the only access to the subject property was over Chateau Blvd. Previously there was access generally into the area by another street, Sunset Blvd., however the dedication of that street had been revoked, and there was no rededication of that street until March, 1974. Chateau Blvd. was in fact being used for ingress and egress, but at that time the ability of the property owners to use it was placed in jeopardy by the pending suit mentioned above, which at time of trial had still not been resolved, although the lis pendens had been cancelled some time after the present suit was filed.

The basic issue involved here is thus whether a clear and merchantable title existed in January 1974. In the case of Roberts v. Medlock, 148 So. 474 (La.App. 2d Cir. 1933) we find the following definition of merchantable title at page 476:

“[4] A ‘merchantable title’ is one which can be readily sold or mortgaged in the ordinary course of business, to a reasonable person familiar with the facts and apprised of the question of law involved. It need not be free from every technical defect, of all suspicion, or the possibility of litigation. It must be a record title free of rational substantial doubt to the extent that a purchaser should feel that he can hold his purchase in peace without the probability of attack and with reasonable assurance that it will be readily salable on the open market. (Citations omitted.)
“The word ‘merchantable’ implies something less than a perfect title and permits of defects which are not reasonably liable to result in assault. This presents a question of fact as well as one of law.” This is consistent with the definition expressed in 92 C.J.S. Vendor & Purchaser §§ 190-191.

In considering whether restricted access to property can be the basis for refusal to take title to property, we refer to the case of Norgren v. Harwell, 172 So.2d 723 (La. App. 4th Cir. 1965) which held that a purchaser was justified in refusing to take title when access to a tract of land purchased for development as a subdivision was restricted to a maximum of four streets across a right of way located between the proposed subdivision and the highway. If the facts in that case and our case were alike, we would have no hesitancy in declaring that Norgren controls the situation here. However our facts differ in that the access limiting property is not located directly in front as in Norgren but some distance away. On the other hand, if the Robco suit is successful, there would be no access at all to the subject property, whereas in Norgren there was only limitation of access involved.

Our courts have held that a vendor must deliver title free of encumbrances and suggestion of future litigation. Treadaway v. Williams, 163 So.2d 911 (La.App. 4th Cir. 1964); Young v. Stevens, 252 La. 69, 209 So.2d 25 (1968). There are numerous cases with decisions on both sides of the question as to whether a title is merchantable and suggestive of litigation. It is apparent that each case must be decided upon the facts peculiar to it within the definition expressed above of merchantability. We refer to 23 Louisiana Law Review 609 at page 610 which expresses our view on the situation herein:

“One who purchases immovable property seeking to obtain perfect ownership has, as his principal cause, the acquisition of that bundle of legal relations between himself and all others which makes up perfect ownership. If he does not obtain all or any one of these legal relations, such as the right to unrestricted use, he is not getting all that he sought. The immediate end which he had in view, his principal cause, is thus tainted with error such as to vitiate his consent to the purchase contract. Conversely, if the purchaser is aware that some of the legal relations will be denied him, and nevertheless binds himself to accept the property there is no error and his consent is not vitiated. Although never expressly mentioned, the Louisiana courts apparently recognize these principles by holding that a purchaser is not compelled to accept a title which is suggestive of serious future litigation.”

The agreement between the parties shows on its face that the purchaser was bargaining for lots which would be ready for immediate occupancy and use within a specified time frame, to the extent that paved streets and all of the public utilities would be in place so construction and development could start immediately. A reasonable and knowledgeable purchaser would certainly be deeply concerned over the legal situation which confronted him at that time which would prevent not only his ability to himself go upon the property to construct and develop, but further prevent him from selling to another in good faith property which he knew may not be readily accessible until after a successful resolution of the pending lawsuit. There is thus posed a very real threat to accessibility of the property while the litigation is pending, and a prospective purchaser is justified in refusing to take title under these circumstances.

For the reasons above expressed, we affirm the judgment of the trial court.

AFFIRMED.

MORIAL, J., filed a dissenting opinion.

MORIAL, Judge,

dissenting.

In my opinion the sole issue before this court is whether or not a notice of lis pen-dens affecting property giving access to the lots to be acquired renders the title to those lots unmerchantable.

On the basis of this court’s decision in Miller v. Justice, 299 So.2d 558, writs refused La., 302 So.2d 311 (1974) and Urban Redevelopments, Inc. v. Justice, La.App., 299 So.2d 561, writs refused La., 302 So.2d 311 (1974); the judgment of the district court must be reversed. In those cases, plaintiffs sought a writ of mandamus against the clerk of court, to compel him to remove a notice of lis pendens from mortgage certificates on property which was not directly involved in the litigation for which the notice of lis pendens was filed. There the property in dispute was that which provided access to the plaintiff’s property. The owners of the property subject to the notice of lis pendens intervened in the suit claiming that the inscription on plaintiff’s mortgage certificate was valid. We held that where the notice of ¡is pendens did not describe the property described in the mortgage certificate, and where the intervenor did not attempt to assert any title to, privilege or lien on plaintiff’s property, the lis pendens was improperly placed on the mortgage certificate. Here, as in the above cited cases, the notice of ¡is pendens does not describe the property described in the mortgage certificate.

Furthermore, as to merchantability of title, Young v. Stevens, 252 La. 69, 209 So.2d 25 (1967) and Treadaway v. Williams, 163 So.2d 911 (La.App. 4 Cir. 1964) relied on by the district court are inapplicable. In those cases the encumbrances were on the title of the property being purchased and not the adjoining property. I consider the question of merchantability of title only insofar as it affects the title tendered in the present action. To be “merchantable” a title “ * * * need not be free from every technical defect, of all suspicion, or the possibility of litigation. It must be a record title free of rational substantial doubt to the extent that a purchaser should feel that he can hold his purchase in peace without the probability of attack and with reasonable assurance that it will be readily salable on the open market.” Roberts v. Medlock, 148 So. 474 (La.App.2d Cir. 1933).

For the foregoing reasons, I respectfully dissent.


text:
    COMMERCIAL UNION INSURANCE COMPANY v. JAMES J. CULOTTA, INC. and James J. Culotta.
    No. 7942.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.
    Writ Refused July 1, 1977.

      Hammett, Leake, Hammett, Hulse & Nelson, Harry D. Hoskins, III, New Orleans, for plaintiff-appellant.
    Zeringer & Zeringer, Harold J. Zeringer, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and LEM-MON, JJ.
   LEMMON, Judge.

This is an appeal by a surety from the dismissal of its suit against its principal for indemnification of attorney’s fees incurred as a result of a creditor’s execution of the surety bond.

In March, 1972 the principal, a Louisiana general contractor, and the surety entered into a Contractors’ Blanket Sales, Use and Income Tax Bond, which fulfilled the requirements of the State of Mississippi as to sales and use taxes in connection with two construction projects in that state. The bond contained the following provision:

“2. We will perform all the conditions of such bonds and indemnify the Company against any and all liability, loss, costs, damages, fees of attorneys and other expenses which the Company may sustain or incur in consequence of the execution of such bonds or any renewal or successor thereof, including but not limited to, sums paid or liabilities incurred in settlement of, and expenses paid or incurred in connection with claims, suits, or judgments under any such bonds, expenses paid or incurred in enforcing the terms hereof, in procuring or attempting to procure release from liability,' or in recovering or attempting to recover losses or expenses paid or incurred, as aforesaid.” (Emphasis supplied)

When the property involved in the construction project was sold in December, 1973, the Mississippi State Tax Commission had filed several tax liens against the principal, and part of the sale proceeds were retained in an escrow account by the principal’s attorney to cover any tax liability. On March 12, 1974, when nothing had been done to satisfy the liens or to protest them, the Commission attempted to execute against the principal, but the return was marked nulla bona. The Commission then caused a distress warrant to issue against the surety’s assets.

Fearful that its license to do business in Mississippi was in jeopardy, the surety immediately contacted its local counsel in Louisiana, where the bond had been executed. The local attorney then contacted the Commission, who granted him a few days to clear the matter, and also employed counsel in Jackson, Mississippi to coordinate with the Commission and to follow the situation there.

A complete review of the file by the local attorney revealed the existence of the escrow account and the principal’s intention to seek a judicial determination of the liability asserted in the liens. However, the tax assessment had never been formally protested, and no judicial determination had ever been formally requested.

Mississippi counsel for the surety also reviewed the file, the Commission’s assessments, and the applicable tax statutes. In early April he conferred with the Commission’s attorney and obtained assurance that no demand would be made on the surety’s bond until there was a determination whether the escrow account could be used to satisfy the liens.

On May 16, 1974 judgment was rendered in the garnishment proceedings, ordering the garnishee to release the funds in satisfaction of the liens. Thereafter, the garnishee filed in the garnishment proceedings an amended answer and a motion to set aside the judgment, asserting that the principal might have grounds to contest the garnishment. The principal never pursued this contest, but instead made several trips to Jackson for informal discussions with the Commission’s attorney. He testified that these discussions accomplished nothing, and in late July he instructed the garnishee to release the funds in payment of the tax.

In defending this suit, the principal took the position that it was unnecessary for the surety to incur attorney’s fees. We disagree. When the principal did not pay the assessments and did not formally protest them, but apparently ignored them, the surety was subject to liability on its bond. And when the distress warrant was issued, the surety reasonably and in good faith decided to employ counsel to protect its interest. Therefore, the principal is liable under the contract for the reasonable fees thus incurred.

The extent of the services and the amount of the fees are not in substantial dispute. The Louisiana attorney spent six hours on the case, almost all of which was before the Commission’s commitment to defer execution of the surety’s assets pending garnishment of the escrow account. His fee was $300.00, plus $13.39 in telephone costs. The Mississippi attorney’s efforts were not as well documented or itemized as to the amount of time expended, but the evidence did establish that most of the work was also performed prior to the Commissions’ commitment. Additional efforts were apparently required in overseeing the garnishment proceedings and the principal’s resistance efforts therein, while maintaining contact with the Commission. That bill was $600.00, plus expenses of $16.56.

The exigencies of the situation probably required considerable duplication of effort. However, the surety’s Louisiana officer was reasonable in employing counsel where the bond was written and the principal was domiciled. That attorney was reasonable in employing Mississippi counsel where the Commission was located and the garnishment proceedings were conducted. And all of these efforts were necessitated by the principal’s lack of timely action after the assessments were filed.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered in the amount of $929.95, with interest from August 29, 1974, the date payment was due, until paid, and all court costs.

REVERSED AND RENDERED.

      . Although not pertinent to this claim, we mention that the surety’s attorneys persuaded the Commission to waive its claim to a $2,000.00 penalty.


author: SCHOTT, Judge. STOULIG, Judge,

text:
    WIGWAM, INC. v. William F. JUDICE et al.
    No. 7944.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.
    Baldwin, Haspel, Rainold, Meyer, Reso, Dussom & Little, Conrad Meyer, IV, New Orleans, for plaintiff-appellant.
    Henican, James & Cleveland, Andrew I. Brown, New Orleans, for defendants-appel-lees.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

On April 29, 1975, defendants signed an agreement to purchase real estate and other assets from plaintiff for $625,000. The agreement was on a standard real estate board form and provided that the act of sale was to be passed prior to July 1, 1975, and that upon acceptance of the offer by the vendor the purchasers would deposit with the vendor’s agent $10,000 cash and a demand note for $52,500. The agreement provided: “This offer remains binding and irrevocable through Monday, May 5, 1975.”

On May 2, 1975, the agreement was signed by the plaintiff’s president “subject to approval by stockholders in accordance with Louisiana law.”

Plaintiff’s stockholders met on May 14 and authorized the sale, whereupon plaintiff’s agent contacted defendants and secured the promissory note dated May 16 and a check for $10,000 dated May 20. Following the check’s being deposited by the agent it was returned to him by the bank as NSF. Additional contacts were made with the defendants by the agent with the result that two additional checks for $5,000 each, dated May 30, and June 13, were given to him by defendants, but when the earlier check was deposited it was returned by the bank as NSF.

On June 25 plaintiff’s notary and attorney advised defendants in a letter that the act of sale was scheduled for June 30 in his office and on June 30 a formal proces verbal was passed by the notary reciting that in response to his letter of June 25 one of the defendants had advised him by telephone that they “would not attend the act of sale in that they had failed to obtain the necessary cash portion of the consideration for the said sale,” and declaring that the purchasers were formally placed in default with respect to the agreement they had made to purchase the property on April 29.

This suit followed for the $62,500 allegedly due on the first check and the note. From a judgment dismissing plaintiff’s suit it has taken an appeal.

At the outset it must be observed that plaintiff’s case flies in the very face of the agreement on which it is based. Defendants bound themselves under the agreement only until May 5 and plaintiff did not, and indeed was not able to, accept the offer before that date. The reason it could not is because this proposed sale was one in which all, or substantially all, of plaintiff’s assets were being sold so that the provisions of LSA-R.S. 12:121 were applicable requiring approval by two-thirds of the shareholders. Furthermore, R.S. 12:73 provides that at least ten days’ notice had to be given to the shareholders for such a meeting.

Plaintiff relies in this connection on the testimony of two of the defendants to the effect that they were aware that the agreement would require the approval of plaintiff’s shareholders, but we find nothing in this record which would support any inference that the defendants knew or even should have known that this stockholder approval could not take place before the May 5 deadline. For instance, R.S. 12:76 provides that any action can be taken by the stockholders by their written unanimous consent obviating the necessity of a meeting.

Even so, we have here a situation where plaintiff was well aware that it would require at least ten days in which to accept defendant’s offer so that when the plaintiff’s president signed the acceptance on May 2 he knew that his action could have no effect whatsoever since the agreement would expire only three days later. Furthermore, plaintiff’s knowledge of these circumstances was chargeable to its agent who took the agreement to purchase from defendants. When he did so on April 29 he was under a duty to allow a sufficient amount of time for his client, plaintiff, the corporation, to take whatever action was necessary in order to accept the agreement within the time that the agreement to purchase was to remain open. Had he inserted the expiration date as May 15 when the offer was made rather than May 5 this problem would not have developed, but instead the date inserted was completely unworkable as he and his client, plaintiff, well understood.

Plaintiff contends that when defendants gave their note and check on May 16 they ratified the agreement. In the first place defendants testified that when the checks and note were given to plaintiff’s agent they were under the impression that they were legally bound to perform under the agreement and they continued to labor under this impression until after July 1. Apparently, it was not until the suit was filed that they consulted an attorney and realized that they might not be bound. Thus, the answer to plaintiff’s argument is 1) there was no binding agreement to be ratified, it having expired on May 5 by its own terms, and 2) there can be no ratification by mistake. Ratification involves an intent with knowledge as to the thing being ratified. An intention to ratify will not be inferred when it can be explained otherwise. See Williams v. Arkansas Louisiana Gas Company, 193 So.2d 78 (La.App. 2nd Cir. 1966). Defendants’ act of delivering the check to plaintiff’s agent was explained by them to the satisfaction of the trial judge on the basis that they thought they were bound when, as a matter of law, we have held that they were not under the April 29 agreement. See also, Rahier v. Rester, 11 So.2d 87 (La.App. 1st Cir. 1942).

The case of Treadaway v. Laporte, 195 So.2d 408 (La.App. 4th Cir. 1967) relied on by plaintiff is inapposite. In that case a real estate agent sought to recover his commission on the basis of a clause in the agreement to purchase and sell which provided that his commission was earned when the agreement was signed and the mortgage loan secured.

The agreement (dated June 4) provided for thirty days in which to secure the loan. Although the loan was not obtained by the purchaser until July 14 after the deadline (July 4), no problem developed until the day of the scheduled sale on July 28, three days prior to the deadline for passage of the sale. At that time the purchaser invoked an automatic thirty day extension for passage of the sale because of an encroachment discovered during title examination. The problem could not be solved and the sale fell through. The vendor, cast in judgment for the agent’s commission, contended that there was no written extension of the thirty day deadline for obtaining the loan so that the agreement expired. The court rejected the argument because this was not an action involving title but only a claim for a commission. The court held that there had been a waiver and/or an extension of the delay which, while not written, was effective as far as plaintiff’s right to his commission was concerned.

The instant case is governed by LSA-C.C. Art. 1802:

“He is bound by his proposition, and the signification of his dissent will be of no avail, if the proposition be made in terms, which evince a design to give the other party the right of concluding the contract by his assent; and if that assent be given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the proposer to allow.” (Emphasis supplied)

Defendants made a written offer which specified a deadline for acceptance. This deadline passed without an acceptance from plaintiff. No contract was confected and defendants had no further obligation in the premises.

The judgment appealed from is affirmed.

AFFIRMED.

STOULIG, J., dissents with written reasons.

STOULIG, Judge,

dissenting.

I respectfully dissent.

I disagree with the majority holding that the offer expired May 5, 1975. The contract states: “This offer remains binding and irrevocable through Monday, May 5, 1975.” This simply means it may not be withdrawn before that date. It does not state the offer expires.

The offer was accepted and ratified by the corporation. Then the purchaser tendered the deposit money specified in the agreement after the corporation was fully authorized to proceed by a vote of its board. Under C.C. arts. 1811 and 1816, this agreement is an offer to sell realty that ripened into a contract by the express and tacit acceptance by the corporation representatives. Therefore, the seller is entitled to damages for its breach.


author: MORIAL, Judge.

text:
    HARVEY CANAL TOWING CO., INC. v. GULF SOUTH DREDGING CO., INC.
    No. 7988.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.
    Pilié, Pilié & Landry, M. Arnaud Pilié, New Orleans, for plaintiff-appellee.
    James R. Conway, III, Charles F. Seem-ann Jr., New Orleans, for defendant-appellant.
    Before BOUTALL, MORIAL and BEER, JJ.
   MORIAL, Judge.

Harvey Canal Towing Co., Inc. (Harvey) seeks payment from Gulf South Dredging Co., Inc. (Gulf) and its surety, Maryland Casualty Company (Maryland), for towing services rendered between June 1974 and July 1975. Gulf, having entered into several federal and state contracts as principal contractor was required pursuant to the provisions of LSA-R.S. 38:2241 et seq., to obtain performance and payment bonds with a solvent surety. The statutorily required bonds were obtained from Maryland.

The district court found that Harvey had performed the services alleged and rendered judgment against Gulf in the amount of $77,772.75 out of which amount a judgment was rendered against Maryland for $43,685.05. Maryland filed a motion for new trial and an exception of lack of jurisdiction arguing that the state court had no jurisdiction over any proceedings previously conducted over a claim arising out of a federal contract. Harvey admitted that the court lacked jurisdiction over the federal contracts and filed a motion to amend the judgment to reflect the limitation of Maryland’s liability in this suit to its obligation as surety under a state contract. Specifically Harvey argued that Maryland was liable for $1,868.75 for towing services as listed in Invoice No. 07-20574 which work Harvey contends was done in connection with a project for the St. James Parish Police Jury. Maryland opposed the amendment claiming it had no exposure for those particular services listed in Invoice No. 07— 20574. The trial judge amended the judgment as requested by Harvey. Maryland appeals. We affirm.

Gulf contracted with the St. James Parish Police Jury to perform drainage improvements in the Parish of St. James. Harvey was engaged to haul barges and boats to the job sites. Harvey was employed each time towing service was required. Their equipment was not continually in use -by Gulf on the project.

Two issues are presented to the court on appeal: (1) whether or not the towing services covered by Invoice No. 07 — 20574 were performed in connection with the St. James Parish Police Jury contract and (2) if the court finds the services were performed in conjunction with the St. James contract, is the contractor’s surety liable for the payment of those towing services under the provisions of LSA-R.S. 38:2241-88:2247.

Maryland argues that Harvey failed to prove that the services listed in Invoice No. 07 — 20574 were done in connection with the St. James Project relying on a log attached to the invoice showing the route taken by a tug on that job. Maryland argues that the log reflects that the job in question consisted of towing a barge from the Harvey lock to Donaldsonville which is not located in St. James Parish. Maryland disputes the testimony of Earl Creighton, a former Gulf superintendent, that he was able to link a job with a certain project in spite of the fact that he was not physically on the job.

Whether or not a certain towing job was done in furtherance of a particular contract was a question of fact to be determined at the trial. Apparently, the trial judge concluded that Mr. Creighton was able to keep track of the particular services being performed for his company on a certain project at any given time. Further proof of the connexity of the job and the St. James project was the fact that the words “St. James Parish Police Jury-Gulf So. Job # 7320” were written on the invoice at issue. The log relied on by Maryland merely reflects the route of a tug on a job but does not specify the contract which is being serviced by that job. On the basis of the Creighton testimony and Invoice No. 07— 20574 we find that the towing services in question were performed in furtherance of the St. James Project.

Maryland argues that Harvey does not come within the provisions of LSA-R.S. 38:2241 et seq. because it is a lessor of manned equipment. Maryland also argues that Harvey did not supply any materials which were incorporated into the project. In support of its argument Maryland relies on Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545 (1941) and Mayeaux v. Lamco, Inc., 180 So.2d 425 (La.App. 1 Cir. 1965).

At the time the alleged cause of action arose LSA-R.S. 38:2241 provided as follows:

“Whenever the state or any state board or agency or any political subdivision of the state enters into a contract in excess of one thousand dollars for the construction, alteration, or repair of any public works, the official representative of the governing authority shall reduce the contract to writing and have it signed by the parties. He shall require of the contractor a bond, with good, solvent, and sufficient surety in a sum not less than fifty percent of the contract price for the faithful performance of the contract with an additional obligation for the payment by the contractor or subcontractor for all work done, labor performed, or material or supplies furnished for the construction, alteration, or repair of any public works, or for furnishing materials or supplies for use in machines, used in the construction, alteration, or repair of any public works. No modifications, omissions, additions in or to the terms of the contract, in the plans or specifications or in the manner and mode of payment shall in any manner affect the obligation of the surety. The bond shall be executed by the contractor with surety or sureties approved by the officials representing the state, state board or agency, or political subdivision and shall be recorded with the contract in the office of the recorder of mortgages in the parish where the work is to be done not later than thirty days after the work has begun.”

LSA-R.S. 38:2242 provides:

“Any person to whom money is due for doing work, performing labor, or furnishing materials or supplies for the construction, alteration, or repair of any public works, or furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works, excluding persons to whom money is due for the lease or rental of movable property, but including any architect and any consulting engineer engaged by the contractor or subcontractor in connection with the building or other public work, may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done. After the filing and recordation of claims, any payments made by the governing authority without deducting the amount of the claims so served on it shall make the authority liable for the amount of the claims.”

The jurisprudence is clear that in order for a claimant to hold the prime contractor or surety liable under LSA-R.S. 38:2241, it is a prerequisite either that there be privity of contract or that the claimant furnish labor or materials to a contractor or subcontractor. Richard and Gaudet v. Housing Auth., City of Lafayette, 323 So.2d 168 (La.App. 3 Cir. 1975); Moore v. Coastal Contractors, Inc., 188 So.2d 467 (La.App. 3 Cir. 1966); Brouillette v. Atlas Construction Company, 151 So.2d 582 (La.App. 2 Cir. 1963).

Harvey meets both requirements. Harvey contracted directly with Gulf, the principal contractor on the construction project. Having established privity of contract plaintiff is entitled to make a claim against the surety.

We also find that plaintiff has performed work within the meaning of LSA-R.S. 38:2241 et seq. See Pyburn v. Popich Marine Construction, Inc., 186 So.2d 674 (La.App. 4 Cir. 1966); Childers v. City of Monroe, 10 La.App. 701, 122 So. 135 (2 Cir. 1929).

The cases relied on by Maryland are inapplicable to the facts of this case. Mayeaux, supra merely upheld the provision of LSA-R.S. 38:2242 excluding persons to whom rental was due for the lease of movables from the class of persons therein covered. In Louisiana Highway Commission v. McCain, supra the court held that the surety was not liable for the rental of a barge which served as a temporary bridge while a bridge was being constructed. There the court relied on Colonial Creosoting v. Perry, 169 La. 90, 124 So. 182 (1929) which held that a contractor should furnish machinery and implements necessary to perform the contracted work at his own expense.

However, a distinction must be drawn between the rental of machinery and equipment and hiring a carrier who is in the business of providing towing services on water to perform a certain portion of the work necessary to complete the public work. Harvey hired its own employees and captains to man the tugs and had full responsibility and control over accomplishing the service requested.

In Super Construction Co. v. New Orleans Levee Board, 286 So.2d 134 (La. App. 4 Cir. 1973) the furnisher of equipment and labor was entitled to recover against the contractor’s surety where it furnished services to a subcontractor on a public works project at a certain price per hour and had responsibility for the control and supervision of the job. The court did not characterize the contractor’s use of the equipment as a rental transaction. The facts herein are similar. We disagree with Maryland’s contention that only persons providing materials which are incorporated into the project are covered. That clause merely sets out one class of persons covered by the provisions of the statute. The statute clearly provides protection to persons due money for doing work and performing labor on the project. See LSA — R.S. 38:2241-2242, supra.

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

AFFIRMED.

      . LSA-R.S. 38:2241 was amended and re-enacted by Acts 1975, No. 344, § 1 to add after the words “public works,” in line 10 and before the words “or for” in line 12 .the clause, “* * * or for transportation and delivery of such materials or supplies to the site of the job by a for hire carrier, * * The amendment is not applicable to this case.


author: STOULIG, Judge.

text:
    Rose Pareti, widow of Morris L. TAQUINO v. W. F. MINCHEN and E. S. Morrison.
    No. 7994.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.
    Badeaux, Discon, Cumberland & Barbier, Carl J. Barbier, New Orleans, for plaintiff-appellant.
    Mmahat, Gagliano, Duffy & Giordano, Lucas J. Giordano, Metairie, for defendants-appellees.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

This is an appeal from a judgment dismissing Mrs. Rose Pareti Taquino’s suit, to evict her tenants W. F. Minchen and E. S. Morrison from the premises at 619 Bourbon Street in the Vieux Carre of the City of New Orleans.

In 1967, plaintiff and the defendants signed a 10-year lease with an additional 10-year option. The rent was $400 per month for the first year; $450 for the second through the fifth; $500 for the sixth through the tenth; and $650 for the eleventh through the twentieth, should lessees exercise their option. Lessees also were obligated to spend a minimum of $27,600 for improvements during the first year of the lease.

This historie old building, erected between 1810 and 1812, was in a badly deteriorating and uninhabitable condition when the lessees took possession. After spending $52,000 the lessees transformed it into an attractive and functional building. As is usual in restoration projects in the French Quarter, a series of “before” and “after” photographs were made of the interior and exterior. The pictures establish a crumbling ruin was successfully renovated. Why the cost of restoration was so much higher than the $27,600 improvement figure in the lease was that serious structural weakness was detected in the main rear wall and other masonry defects were found when work began.

Appellant’s primary complaint is that lessees, in partially enclosing an arch in this wall, made a structural change without her written authorization. She cites the quoted section of the lease as a basis for now seeking its cancellation:

“FOURTH — A
“Neither Lessor nor Lessee shall make any structural additions or alterations to the premises without written permission of the other party hereto. However, Lessor or her employees shall have the right to enter the premises for the purpose of making repairs necessary for the preservation of the property. Any additions made to the property by Lessee shall become the property of Lessor at the termination of this lease, unless otherwise stipulated herein.”

When the building was originally erected the arch was open and functioned to support the weight of the building. But when the lease was signed, the original arch was partially enclosed with wood braces and brick pillars, and these additions were actually supporting the weight the arch was designed to carry. Stewart Farnet, the architect who directed the renovation, and Gerald Gelpi, the contractor, testified in substance that the crumbling brick pillars erected in the aperture of the original archway and collapsing masonry work caused the cost of renovation to almost double from the original estimate of $27,600 to approximately $52,000.

In transforming the decaying main rear wall into a structurally sound one lessees were complying with these sections of the lease:

“THIRD
“It is mutually agreed between the parties hereto that the said premises are accepted by lessee in such condition as is apparent at the time of entering into this agreement with the full recognition and realization that certain repairs are required, more particularly, Lessee takes cognizance of all plumbing and electrical work in the condition that now exists.
“FOURTH
“Lessee agrees to maintain the leased premises in good condition at his expense and to return said property to Lessor in such condition at the termination of this lease, normal decay, wear and tear excepted.
******
“FIFTH
“Lessee agrees that at least ($27,600) twenty-seven thousand six hundred dollars of improvements to the leased premises shall be made within a one year period from date of execution of this lease.
******
“TWENTY FIRST
“Lessor and Lessee agree the attached estimates of repair shall be a guideline for betterments and improvements to the building as noted in FIFTH article above.” (Emphasis added.)

The attached estimate called for: “Miscellaneous masonry work required to reconstruct defective wall areas.” (Item 1 — f of the addendum.)

Without structural changes in the rear wall the lessees could not have used the building. The repairs were specifically authorized by the section of the addendum quoted above. The lease did not call for a restoration of the property, that is, to rebuild it as it existed in the early 1800s when it was new. Their obligation was to improve and renovate. This they did at great expense.

Defendants suggest Mrs. Taquino is attempting to repossess her property now that it is in mint condition and the sequence of her pleadings lend some credence to this hypothesis.

The lease period began July 1, 1967 and during the renovation and after its completion plaintiff visited her property. She originally filed suit for possession in May 1969 for nonpayment of rent timely and failure to install two tie-rods. In May 1970 she amended her pleadings to assert lessees violated city ordinances in renovating the building. It was not until five years later, on November 20, 1974, that appellant raised the issue of violating the prohibition against structural changes without her consent. And now this is allegedly her main complaint. What she fails to consider is the structural changes provision must relate to the time the lease was signed, not to 1812.

Her other complaints of unauthorized lease-violating changes — installation of a standing fireplace, movement of interior partitions, and cutting a doorway — are established as meritless by this provision of an addendum to the lease:

“d. To provide general carpentry, repair work including repairs to all exterior and interior doors, windows and frames, new partitions and plaster work, repairs to the second floor wood floors, construction of new main stair, repairs to first floor slab.”

Before the renovation commenced, plaintiff was given a copy of the addendum prepared by the architect which outlined the proposed changes and improvements that would be made to the premises. Having seen and accepted this document, she cannot now complain about the work that was done in accordance with its specified guidelines.

Finally, her complaint of failing to install two tie-in rods to prevent a slave quarter wall from moving is groundless. The support and bracing was accomplished in another way and the tie-in rods were suggested as a guideline to accomplish this purpose.

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

AFFIRMED.

      . Morrison assigned his interest to Minchen.

      . “FOURTH — B
      “In the event Lessee desires to make any improvements to or correct any underground plumbing on the above premises, he shall submit to Lessor in writing a copy of the proposed improvements, additions or corrections. Lessor shall have 10 days from the date of receipt of said proposed improvements, additions or corrections in which to approve said improvements or to make Lessors additions to said plans at Lessors cost. After 10 days from the receipt of said notice, [if] Lessor has not notified Lessee in writing by Certified or Registered Mail at 619 Bourbon Street, New Orleans, Louisiana, of Lessor’s desire to add to said improvements, Lessee shall have the right to complete them according to the plans and specifications submitted.”


author: GULOTTA, Judge.

text:
    Lesley L. SMITH et al. v. CASUALTY RECIPROCAL EXCHANGE.
    No. 7996.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.

      Richard A. Najolia, Philip C. Ciaccio, New Orleans, for plaintiffs-appellees.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, Kenneth V. Faherty, New Orleans, for defendant-third party plaintiff-appellant.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   GULOTTA, Judge.

We are confronted solely with a question of quantum. Plaintiffs were injured as a result of an automobile accident. Liability is stipulated under the uninsured motorist provision of an insurance policy with the defendant insurer in the name of Lesley L. Smith.

Defendant appeals from a $3,500.00 general damage award in favor of plaintiff Smith and a $5,000.00 general damage award in favor of plaintiff Dolores Miller. The uninsured motorist liability limit is $5,000.00 per person and $10,000.00 per accident. Plaintiffs, in answer to the appeal, seek an increase in Smith’s award to $6,500.00 in general damages and in Miller’s award to $10,000.00 in general damages, the excess of the policy limit to be granted against Richard G. Woodruff and Samuel Woodruff, the uninsured driver and owner respectively of the vehicle involved in the collision with the plaintiff vehicle.

Defendant characterizes the injuries sustained by Smith from the December 23, 1974 accident as abrasions to both eyes resulting from glass particles in the eyes requiring visits to the doctor on three occasions between December 26, 1974 and January 3, 1975, with no residual and resumption of the use of contact lenses on January 3; and a shoulder injury necessitating treatment for approximately one month resulting in headaches and tenderness over the right shoulder for that period of time. In connection with the injuries sustained by Dolores Miller, defendant contends that this plaintiff suffered tendonitis of the ligaments of the knee, requiring occasional cortisone injections and possible aggravation of pre-existing chondromalacia (softness of the cartilage) causing tenderness of the knee for an approximate period of two months which apparently subsided to such an extent that she became employed on February 17,1975, in the position of a respiratory therapist. Defendant suggests that minimal effusion found by two doctors could have resulted from the chondromala-cia or from prolonged standing necessitated in Miller’s post-accident job or from her overweight condition. (Mrs. Miller testified that she was 5'10" in height and weighed about 200 pounds at the time of the accident.)

Plaintiff Smith describes her injuries as contusions to the right shoulder, superficial laceration to the left forearm, hyperexten-sioti injury to the cervical muscles, and abrasions to both eyes. She testified that she had experienced constant shoulder pain for approximately two months and neck stiffness as late as March, 1976. She also emphasized that she had suffered extreme eye pain for several days following the accident.

Plaintiff Miller characterizes her injuries as contusion to the left knee, a lumbosacral strain, aggravation of degenerative changes in the knee and medial collateral tendonitis. She testified that she had experienced no knee pain prior to the accident, but since that time has had continuous difficulty occasioned by swelling and tenderness. She further complained of some degree of back pain. Both plaintiffs argue that the severity of the impact between the vehicles caused plaintiff’s automobile to be knocked backward into a brick wall. As a result, they contend, the injuries sustained are of a serious nature.

SMITH’S INJURIES

Immediately after the accident, this plaintiff was treated at the Charity Hospital Emergency Room. On the following day, Robert J. Cangelosi, M.D., an opthal-mologist, diagnosed corneal abrasions in both eyes and removed two pieces of glass from the right eye and one piece from the left. She was seen on three other occasions on December 26 and 28,1974 and January 3, 1975, at which time the abrasions had healed without any residual and plaintiff’s vision was 20/20 with contact lenses.

Russell J. Rawls, M.D., stated in a March 11, 1975 report that he first examined Miss Smith on December 26, 1974, and diagnosed contusions to the right shoulder and clavicle, superficial lacerations to the left forearm, hyperextension injury to the cervical muscles and abrasions to both eyes. He recommended heat treatment over the tender areas and continuance of analgesics previously prescribed by other doctors. She was seen again on December 30,1974, when she complained of headaches and residual tenderness in the right shoulder. His physical examination at that time revealed that the contusion to the shoulder was resolving, but slight swelling and tenderness had developed on the right side of the head.

Plaintiff was seen by the doctor again on January 6, 14 and 21, 1975. Complaints of tenderness persisted but Miss Smith exhibited increasing improvement with each visit. The regimen of heat treatments continued. In addition, on January 14, plaintiff was placed on an anti-inflammatory agent and on the January 21 visit she received an injection of Celestone in the left arm. The doctor anticipated full recovery within a few weeks after March 11. On the first visit, plaintiff was advised to continue heat applications to the tender areas.

Miss Smith testified that she suffered intermittent dizziness, pain, stiffness in the shoulder area, burning sensation in the eyes and headaches over a two- or three-month period. Furthermore, according to observations made by the trial judge, this plaintiff had a two- or three-inch hairline, slightly discolored scar on the forearm.

MILLER’S INJURIES

Mrs. Miller was examined by Dr. Harry Edward Hoerner, an orthopedist, on December 30, 1974. His physical examination revealed muscle spasm in the lower back region and bruises and ecchymosis of the left knee on the medial side, accompanied by swelling and an “exquisite” or severe amount of tenderness. An x-ray taken at the time showed minimal degenerative arthritic changes in the undersurface of the kneecap. Mrs. Miller was advised to return for examination in two weeks but did not keep her appointment.

On August 12, 1975, however, Mrs. Miller saw Dr. Robert E. Ruel, Jr., an associate of Dr. Hoerner. She complained of repeated instances of “giving out” of the left knee, as well as pain and swelling in the knee area. Dr. Ruel’s examination revealed a minimal amount of fluid in the knee, but severe tenderness along the medial joint line.

This plaintiff was again seen by Dr. Hoerner on December 15, 1975, at which time she complained of pain and difficulty in climbing stairs. The doctor’s diagnosis was chondromalacia of the kneecap and bursitis. Dr. Hoerner testified that the tendonitis and chondromalacia were related to the accident. He also stated that the accident contributed to the increasing symptoms she had of the arthritic changes in her kneecap which had pre-existed the accident.

Dr. Harold M. Stokes, an orthopedist, examined Mrs. Miller on February 3, 1976. His examination, at that time, revealed a mild effusion of the left knee and tenderness to palpation. X-rays taken at the time did not reveal any degenerative changes different from those changes which appeared on the December 30, 1974 x-ray. Dr. Stokes felt that the accident did not produce the changes noted on the December 30 x-ray. The record is clear that plaintiff did not sustain a torn cartilage.

The evidence considered, we conclude that the $3,500.00 general damage award in favor of Lesley Smith and the $5,000.00 general damage award in favor of Dolores Miller are neither inadequate nor excessive. We find no abuse of the “much discretion” rule. See Bitoun v. Landry, 302 So.2d 278 (La.1974); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) and Robinson v. Graves, 343 So.2d 147 (La.S.Ct. 1977). The judgment is affirmed.

AFFIRMED.

      . Although the record is not clear on the exact amount of the automobile damage, it appears that the cost of repairs amounts to $1,975.00.


author: SCHOTT, Judge.

text:
    Brison HEARRON v. Kenneth T. MORGAN and Louis C. Morgan, d/b/a/ Morgan Real Estate Co.
    No. 8002.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.

      Fabacher & Murov, Mark G. Murov, New Orleans, for plaintiff-appellant.
    Glenn L. Morgan, New Orleans, for defendants-appellees.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

On January 3,1974, plaintiff inspected an apartment defendants were offering for rent. He then signed an application to rent the apartment and deposited with defendants $50. The application recited that the deposit was not being received as a rental payment but provided: “In the event the application is approved and applicant fails or refuses to enter into the contemplated lease, owner shall retain the said deposit as liquidated damages to cover the cost of taking and processing this application and removing the premises from the market and holding same for applicant. In the event this application is disapproved, or for any other reason for which owner is responsible the Lease Agreement is not consummated, this deposit will be returned to applicant.” It further provided that the defendants would take five to seven days to process the application for credit and character references.

On January 4 plaintiff changed his mind and demanded his deposit back.

In the meantime defendants had taken the premises off the market and begun to process plaintiff’s application.

In this suit plaintiff seeks to recover the deposit together with penalties and attorney’s fees pursuant to LSA-R.S. 9:3251 et seq. The defendants reconvened for damages and attorney’s fees. From a judgment dismissing the main and the reconventional demand plaintiff has appealed and defendants have answered the appeal.

The statute relied upon by plaintiff is not applicable. By its own terms, it applies to an advance deposit of money by the tenant or lessee in connection with a lease or rental agreement which has been entered into between the parties. In the instant case, no such lease or rental agreement was made. The deposit was made to induce defendants to hold the apartment for plaintiff pending their approval of him as a tenant. When he receded he forfeited the deposit under the terms of the agreement.

As to defendants’ reconvention, the $50 deposit forfeited by plaintiff was in the nature of liquidated damages under the terms of the application. They, are not entitled to further damages or attorney’s fees simply because they were subjected to a suit by plaintiff. The courts are open to citizens for a redress of grievances which they think they have and citizens should not be discouraged from using the courts for this purpose because defendants and judges might consider their claims to be without merit.

Furthermore, attorney’s fees are never allowed in the absence of a contract or statute.

The judgment appealed from is affirmed.

AFFIRMED.


author: MORIAL, Judge. BEER, Judge,

text:
    Robert C. BETBEZE, Individually and on behalf of his minor daughter, Jennifer Betbeze, v. CHEROKEE NATIONAL INSURANCE CO. and Enola Lagarosse, wife of/and Victor Lagarosse.
    No. 8010.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.
    George C. Stringer, Jr., Harahan, for plaintiff-appellee.
    The Law Office of Emile L. Turner, Jr., New Orleans; Malcolm B. Robinson, Jr., Metairie, for defendant-appellant.
    Before BOUTALL, MORIAL and BEER, JJ.
   MORIAL, Judge.

Defendants appeal from a judgment awarding plaintiff Robert C. Betbeze individually and on behalf of his minor daughter Jennifer, $1,444.55 in special' damages and $5,500.00 in general damages. Jennifer was bitten about the face by a dog owned by Mr. and Mrs. Victor Lagarosse on March 31, 1975.

Jennifer, aged two at the time, was playing with a friend Dee Dee Brodish, also two years old in the Brodish front yard. Willy, the dog owned by the Lagarosses was asleep in the Brodish yard. Mrs. Enola Lagarosse was visiting Dee Dee’s mother inside the Brodish home. The women heard a scream and ran out to find Jennifer’s face bleeding from a dog bite. Jennifer’s father was called. He arrived and took Jennifer to a hospital where the bites were sutured. Under cross examination at the trial, Jennifer testified that she and Dee Dee were playing and Dee Dee pulled the dog’s tail whereupon he turned and bit her.

The issue presented is whether or not the conduct of a two year old child can exculpate a dog owner from the consequences of his pet’s actions.

The trial judge concluded that Lagarosse had created the risk of harm to Jennifer and held the defendants liable for plaintiff’s damages.

Defendants contend on appeal that they are exonerated from liability in light of the decision in Holland v. Buckley, 305 So.2d 113 (La.1974) because they have shown that the harm was caused by the fault of a third person for whom they have no responsibility. Defendants contend that the action of Dee Dee was the sole and proximate cause of the injury. Because of the holding in Turner v. Bucher, 308 So.2d 270 (La.1975), that parents of a child of tender years are strictly liable for the child’s actions; defendants argue it is irrelevant that the Brodish child was incapable of actually being guilty of fault. Defendants also argue that the damages awarded are excessive because the injuries have healed and the scarring is minimal.

Plaintiff argues that the actions of the two year old child did not constitute fault sufficient to exculpate the dog owner from liability for the dog bite. The plaintiff points out that the Louisiana jurisprudence equates the concept of fault with negligence. Plaintiff contends that defendant was at fault for allowing his dog to run loose in spite of the knowledge that the dog chased bicycles and came in contact with small children. Plaintiff argues that the defendant dog owner was the risk creator and should bear the loss.

In Holland v. Buckley, 305 So.2d 112 (La.1974), the Supreme Court interpreted LSA-R.C.C. Article 2321 to mean that when a domesticated animal owner is presumed to be at fault 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. The court further expanded on the duty of a dog owner by stating that LSA-R.C.C. 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 failure of this obligation to control the animal and guard others from harm by it entitles the victim to recover damages thereby sustained.

In reviewing this record we find that the defendants have breached the duty of care to which animal owners are held under LSA-R.C.C. Article 2321. The dog was not confined to its owner’s premises but rather was allowed to roam freely. On the day of the injury the dog was left unattended and out of the control of Mrs. Lagarosse on the Brodish front lawn. Under these circumstances a presumption of fault arose against the Lagarosses. Have defendants rebutted this presumption by proving that the harm was caused by a third party within the holding of Holland, supra?

Defendants argue that Dee Dee’s conduct was the proximate cause of the accident and injury. A determination of the proximate cause of a tort involves the determination of negligence on the part of an individual. Therefore, we must determine whether or not the child or the dog owners created an unreasonable risk of harm to the victim. It is established that a child of tender years is incapable of discerning the consequences of his actions and, therefore, cannot be held legally liable for acts under an objective standard designed for normal reasoning persons. See Turner, supra. Accordingly, Dee Dee Brodish was incapable of acting negligently. There is no evidence that Dee Dee’s parents acted negligently in their supervision of her.

However, in employing a duty risk concept to determine negligence, we find that the defendants acted unreasonably in failing to provide proper supervision of their pet. Under Holland a dog owner is under a duty of care which obligates him to keep his pet under his control so as to prevent it from harming innocent persons. The injury suffered by plaintiff herein is clearly the harm which this rule of law is intended to protect against. It is certainly foreseeable that a child playing on her front lawn where a dog is present will be attracted to it and will inevitably disturb the animal in some way.

The duty of a dog owner encompasses the risk of a child pulling the animal’s tail causing the dog to bite another child. This is especially true under the facts herein where a child is playing in her front yard and the dog accompanies its master on a visit to the child’s home but remains outdoors out of the control of its master.

We now turn to defendants argument that in spite of the fact that Dee Dee was incapable of fault, under Turner her parents are responsible for her conduct. We cannot apply Turner to the facts of this case to bar plaintiff’s recovery against defendants. Turner created a cause of action against a child’s parents based on strict liability. The court fictitiously imposed legal fault on the parents to allow the victim to recover. It is clear from the opinion that the court did not find that a child of tender years was capable of actual fault or negligence. We are of the opinion that under the circumstances of this case the vicariously imposed fault of Turner is not a sufficient defense for the dog owners to raise and thereby escape liability for the harm caused by the bites of their dog. In Babin v. Zurich Ins. Co., 336 So.2d 900 (La.App. 4 Cir. 1976) the defendant dog owner raised the Holland defense of “fault of the victim.” In Babin a SV2 year old child pulled a dog’s tail causing the dog to bite him. We held the child was incapable of fault and his actions could not bar his recovery. Though we are not here dealing with a victim pulling the tail we think the situations are analogous. There should not be a different standard of care applied to two children of approximately the same age simply because one happens to be the victim of his own conduct.

We do not find that the actions of a two year old child in pulling a dog’s tail constitutes fault of a third person within the meaning of Holland v. Buckley, supra.

The damages awarded to plaintiff are not excessive. As a result of the attack Jennifer sustained five wounds to her face. They included: (1) a 5 mm laceration 2" anterior to left ear—steristrip removed, (2) 1—3 cm laceration parallel to and just above the left nasolabial fold, (3) 2 cm laceration 3 cm below right eye and parallel to eye, (4) 3 mm laceration lateral and inferior to the outer conthus of the right eye, and (5) 3 mm laceration midway between the corner of the mouth and right earlobe. Jennifer was taken to the hospital and had her wounds sutured. She was seen by her pediatrician who prescribed medication and recommended a plastic surgeon. Jennifer’s father testified that her face was swollen for approximately two weeks after the accident. Her father stated that she suffered from nightmares several times after the incident. Dr. Hoffman, the plastic surgeon recommended plastic surgery to reduce the appearance of the scars on Jennifer’s face. He testified that the operation does not remove the scars completely.

Plaintiff conclusively proved entitlement to special damages in the amount of $1,444.55 to cover past and future medical expense. Further, the award of $5,500.00 in general damages is reasonable under the facts of this case. Adkins v. Fireman’s Fund Insurance Co., 313 So.2d 328 (La.App. 1 Cir. 1975) and Gaspard v. Le Maire, 245 La. 239, 158 So.2d 149 (1963).

For the foregoing reasons the decision of the district court is affirmed.

AFFIRMED.

BEER, Judge,

dissenting.

I respectfully dissent. In my view, the judgment of the trial court goes beyond the boundaries outlined in Holland v. Buckley, supra.


text:
    Mr. Louis C. EAGAN et al. v. LOUISIANA DEPARTMENT OF HIGHWAYS et al.
    No. 8014.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.
    Montgomery, Barnett, Brown & Read, Harold B. Carter, Jr., New Orleans, for plaintiffs-appellees.
    Bridgeman & Conway, James R. Conway, III, Metairie, for defendant-appellee.

      William V. Renaudin, Jr., New Orleans, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, Christopher E. Lawler, New Orleans, for defendant-appellants.
    Before BOUTALL, MORIAL and BEER, JJ.
   MORIAL, Judge.

This case arises out of a collision at the intersection of Center Street and Judge Perez Drive in St. Bernard Parish. On March 31, 1974 at around 10:30 A.M., Dorothy Eagan was proceeding in an easterly direction on Judge Perez Drive in a 1972 Plymouth automobile owned by her husband Louis Eagan and upon reaching the intersection of Judge Perez Drive and Center Street her vehicle collided with a 1973 Volkswagen owned and operated by Roger Sims who had been proceeding in a southerly direction down Center Street. The impact of the collision sent the Eagan vehicle into an automobile driven by Mrs. Muriel Seymour which was stopped for a red light in the northbound lane of Center Street causing damage to the Seymour vehicle. Mrs. Eagan was carrying a guest passenger, her mother, Mrs. Ida Van Cleave, who suffered injuries in the accident.

Suits were filed by all parties involved and their insurers which were consolidated for trial. There were also several reeonven-tional demands and third party demands filed. The Louisiana Highway Department was made a defendant by all plaintiffs on the basis of allegations that the accident was caused by a malfunctioning traffic signal. The parties stipulated prior to trial that the light was not functioning properly at the time of the accident but the exact problem with the signal was not specified.

The trial judge decided that the malfunctioning of the traffic signal was not the cause of the accident but rather found that Roger Sims was negligent and the proximate cause of the accident in proceeding across the intersection on a red light.

In reviewing the testimony which is admittedly riddled with conflict, we find that the preponderance of the evidence supports the conclusions of the trial judge.

The conflicts in the evidence present a factual issue which requires a determination of the color positions of the traffic signals facing the parties involved at the time of the occurrence.

Mrs. Eagan and her mother Mrs. Van Cleave testified that the light facing Judge Perez Drive turned amber and then red as they approached the Center Street intersection. Mrs. Eagan brought her car to a stop and she contends that when the light turned green she looked both ways and then proceeded across the intersection.

Mr. Sims testified that as he approached the intersection from the north on Center Street he also observed an amber, red and then green light. He stated that he stopped for the red light and after it turned green he proceeded across the intersection. Thus the parties directly involved in the collision both claimed to have crossed on a green light.

Mrs. Seymour confirmed that she was stopped for a red light on the northbound lane of Center Street across the intersection from Sims. She testified that she had a red light before and after the impact occurred. She stated that she had surmised that the signal light was stuck on red because the car ahead of her had stopped and then crossed over on a red light. She stated she also intended to cross over on the red light when the time was right.

Deputy Calo, the investigating officer, testified that the neighborhood people at the scene of the accident were complaining about the malfunctioning signals. He testified that while he was attempting to clear the intersection, a similar accident almost occurred between two drivers at the same intersection, who both claimed to have a green light. The driver facing Judge Perez Drive claimed to have a green light and the deputy noted that the light facing Calo was also green and shut off the lights at the intersection.

Mrs. Georgia Jelks, who lives at 1504 Center, which is on the northwest corner of Center Street and Judge Perez Drive testified that she noticed the night before the accident that the signals were malfunctioning. Specifically, she observed that the signals were stuck causing persons driving on Center Street to continually have a red light and those driving on Judge Perez to have a green light. She said this resulted in a back up of cars on Center Street causing her driveway to be blocked. She testified that the lights remained in this position up until the time of the accident.

Mr. Claude Griffin, who lives at 1417 Center Street which is on the southeast corner of the intersection, recalled that the lights were stuck the night before the accident in the same configuration observed by Mrs. Jelks.

Mrs. Albert Barbier, who lived on the southwest corner of the intersection testified that she observed at 6:30 A.M. on the morning of the collision that the light facing Center Street remained red.

Mr. Ellis Sappia, an electrical superintendent for the Highway Department was qualified as an expert by the court in the field of electrical lighting. He was of the opinion that when a set of lights servicing a street are stuck in a certain position, the lights facing intersecting streets are also frozen on one of the two remaining colors. He testified that it was mechanically impossible for opposing motions of traffic to have a green light at the same time.

The thrust of defendant's argument is his theory that the traffic signal was twisted 90° as the result of being struck by a vehicle causing a green light to be facing both Center Street and Judge Perez Drive at the same time. Defendant contends that the Highway Department was negligent in allowing the lights suspended over the intersection to hang dangerously low and in not timely repairing the signals after notice.

The defendant Highway Department argues that the “twisted light” theory proposed by defendant Sims was not supported in any way by the evidence at trial.

The Highway Department also denied having notice of the malfunctioning light prior to the occurrence of the accident. The Department introduced its logs into evidence showing it had a record of only two complaints at that intersection during the month of March 1974. The records show that on March 15 it was reported that one of the lights had been struck by a moving vehicle and was in need of repairs. A crew was dispatched to repair the light and raised the cable suspending the lights to fifteen feet two inches. The only other complaint recorded in the log was the one made after the accident took place at around 10:30 in the morning. The repair crew arrived at 11:15 A.M. and had the repairs completed by 2:00 P.M.

Sims argues that Mrs. Eagan was negligent in failing to see what she should have seen after looking both ways. Defendant Eagan argues that the damage to her car establishes that the Sims car was traveling at a high rate of speed and was not within her field of vision when she proceeded across the intersection.

After reviewing the record, we find no evidence to support defendant’s contention that the traffic signal was twisted 90° at the time of the accident. None of the witnesses who were present at the scene testified that the lights were twisted out of position. There was no evidence presented showing that, any of the signals had been hit by a vehicle after the March 15 repairs had taken place.

The only testimony involving the nature of the malfunction was with regard to the lights sticking in one position. Therefore, we accord no weight to defendant Sims’ “twisted light” theory.

The testimony of the neighborhood witnesses and Mrs. Seymour, who were all objective witnesses, that the lights facing Center Street were continually red on that morning convinces the court that Mr. Sims encountered a red light but, nevertheless, proceeded across the intersection.

We also find on the basis of the expert testimony regarding the mechanical functioning of the signals that Mrs. Eagan had a green light and properly entered into the intersection. We find no evidence in support of defendant Sims’ argument that Mrs. Eagan entered the intersection negligently.

In light of these findings the mechanical defect in the light was not the proximate cause of the accident. However, if under the circumstances we had found the defect to be the cause of the accident, on the basis of the department records, we would be obliged to hold that the Department did not have actual or constructive knowledge of the malfunctioning light. Netterville v. Parish of East Baton Rouge, 314 So.2d 397 (La.App. 1 Cir. 1975).

We acknowledge the conflicts in testimony, however, this case presented a purely factual issue and, therefore, we are bound to give great weight to the findings of the trial judge. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

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

AFFIRMED.

BEER, Judge,

concurring.

I am of the view that the “twisted light” theory constitutes a more plausible description of the circumstances existent when this accident took place. However, I agree with the majority’s observation that conflicts in the evidence presented factual issues, the resolution of which is within the province of the trial judge. Even though I would conclude otherwise, there is evidence in the record to support the findings of the trial court. Accordingly, I respectfully concur.


author: BOUTALL, Judge.

text:
    Thomas Clinton DAIGLE et al. v. JEFFERSON PARISH SCHOOL BOARD et al.
    No. 8023.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.
    Writ Refused July 1, 1977.

      William R. D’Armond, Sanders, Miller, Downing & Kean, Baton Rouge, for plaintiffs-appellants.
    Jack A. Grant, Gretna, William J. Ober-helman, Jr., New Orleans, for the Jefferson Parish School Bd. and its members (Ober-helman, of counsel), defendants-appellees.
    C. Paul Barker, Louis L. Robein, Jr., Dodd, Barker, Boudreaux, Lamy & Gardner, New Orleans, for Jefferson Federation of Teachers, Local 1559, AFT, AFL-CIO, defendants-appellees.
    Before BOUTALL, MORIAL and BEER, JJ.
   BOUTALL, Judge.

This is an injunction proceeding brought by several individual teachers, together with a teachers’ association, to enjoin the implementation of a collective bargaining contract between the Jefferson Parish School Board and the Jefferson Federation of Teachers, based on improper ratification.

The question is whether non-members of the bargaining agent are entitled to vote on ratification of the contract. The trial court dismissed plaintiffs’ suit and plaintiffs appeal.

Acting upon the petitions of two teachers’ groups, one the Louisiana Professional Coalition and the other the Jefferson Federation of Teachers, to call an election for a collective bargaining agent for classroom teachers, the Jefferson Parish School Board held an election on April 8, 1975 under the supervision of the American Arbitration Association. The Jefferson Federation of Teachers was certified the winner of the election and became the exclusive collective bargaining agent representing the classroom teachers. After negotiations between the School Board and the Federation, a tentative agreement was reached on November 6, 1975 for a contract governing the employment of the teachers. Shortly thereafter, the bargaining agent submitted the proposed contract to all of the teachers for ratification at a meeting held in one of the schools, and all teachers, whether or not members of the bargaining agent, were allowed to attend and vote. The agreement was not ratified.

Thereafter the school board and the Federation again entered negotiations for an agreement and tentatively reached another agreement on December 19, 1975. This agreement was not submitted to all of the teachers for ratification but was only submitted to the membership of the Jefferson Federation of Teachers in a mail referendum. This procedure was in accordance with the resolution of the governing authority of the Federation on November 19, 1975, wherein it was provided that future contract ratification would be effected through membership referendum. The agreement was ratified by the membership and on January 29, 1976 a binding contract was executed by the board and the federation. It is the ratification of this contract, that brings on the injunctive proceedings.

At the outset, we are aware of no statutory law or constitutional provision which grants employees the absolute right to vote for or against ratification of collective bargaining agreements. We must thus be guided by analogy to other laws such as the National Labor Relations Act, 49 Stat. 449 (1935); 29 U.S.C. §§ 151-68, and the general constitutional provisions relating to equal protection and substantive rights. There is jurisprudence to the effect that the membership of the Union has a right to vote on ratification of a contract if it is so provided in its constitution. There is also jurisprudence which permits non-members of the Union to engage in a ratification vote when it is part of the agreement or contract between the employer and the bargaining agent.

In the present case, it is admitted that there is no such express agreement by the employer, nor any contained in the election agreement under which the guidelines for the original election was held. The most that can be urged here is that in the course of campaigning for that election, the Federation caused to be published in a newsletter the week before the election a question and answer format in which the reply stated that “When it comes time to ratify a contract, A.F.T. pledges to let every teacher vote, not just members.” Based upon this, and the testimony of one of the plaintiffs that one of the Federation organizers verbally assured several teachers that they would have a similar right to vote, the appellants have contended that there was a binding agreement or contract made by the Federation which is now enfor-cible. It is further suggested that this contractual agreement, honored by the ratification vote on the first contract, has been breached by the method of ratification vote on the second contract. The trial court found that this did not constitute a binding contract, and we agree. Although appellants urge that this was an unfair or deceptive practice to lure teachers into voting for approval of the Federation as the collective bargaining agent, no proof was elicited which would cause us to believe that it was in fact deceptive. Indeed we are more impressed with the position of the Federation, that the change in method of approval came about as a result of the rather stormy and unruly meeting when ratification of the first contract was attempted.

We consider the major issue here presented to be appellants’ claim that the Federation action is contrary to the basic constitutional rights granted under Article 1, § 3 of the Louisiana Constitution of 1974 and the 14th Amendment of the Constitution of the United States. Conceding for the sake of argument, that the action of the Union in its relationship with the School Board constitutes governmental involvement by a political subdivision of the State, the action of the Union in denying nonmembers a right to vote on ratification of the collective bargaining agreement discriminates against nonmembers because of their political ideas or affiliations (Article 1, § 3 of the Louisiana Constitution of 1974 and Article 10, § 10(A)(3) of that Constitution) prohibiting discrimination against an employee because of his membership or nonmembership in any private organization. In this latter respect, we note the entire section does not prohibit a political subdivision from contracting with an employee organization for employment conditions.

Union membership has been recognized by the United States Supreme Court as mandating no special treatment under the equal protection clause. City of Charlotte v. Local 660, International Association of Firefighters, 426 U.S. 283, 96 S.Ct. 2036, 48 L.Ed.2d 636 (1976). A public body or agency dealing with a labor organization or its members must meet what is classified as a relatively relaxed standard in its relations. Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974).

We find in the record before us nothing to require that we examine the change in the ratification procedure other than to establish that it meets a rational basis. The requirements of the reasonable or rational basis test was summarized in Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485, as follows:

“1. The equal Protection Clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary.
“2. A classification having some reasonable basis does not offend that clause merely because it is not made with mathematical nicety or because in practice it results in some inequity.
“3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.
“4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 340, 55 L.Ed. 369. (354 U.S. at 463, 464, 77 S.Ct. at 1349).

We consider that the classification by the Federation with respect to voting rights between its members and nonmembers is reasonable and rational. We have above pointed to one of the reasons for the change. Additionally we point out that the Federation has been elected as the exclusive collective bargaining agent and the benefits that it obtains are for the benefit of all of the workers. Its responsibility to all employees is such that it must exercise control over itself in order to produce those benefits to the greatest effect. Its members pay dues and contribute effort to its support. While it can exercise some degree of control over improper actions of its members, it cannot exercise that control over improper action of nonmembers. We are not justified, on the basis of the facts shown in this case, in upsetting either the resolution of the Federation providing for membership ratification or interfering with the implementation of the contract approved as a result thereof.

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

AFFIRMED.