author: PRICE, Judge.

text:
    Robert James WALKER, Plaintiff-Appellant, v. Ronnie COLEMAN, Defendant-Appellee.
    No. 13756.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Denied April 23, 1979.
    Stafford, Randow, O’Neal & Smith, by Hodge O’Neal, III, Alexandria, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Jerald L.' Perlman, Shreveport, defendant-appellee The Hanover Ins. Co.
    Piper & Brown by Robert E. Piper, Jr., Shreveport, for third party defendant-ap-pellee Ronnie Coleman.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Plaintiff, an employee of the Department of Public Works of the city of Shreveport, appeals from the summary judgment dismissing his claims for uninsured motorist protection against The Hanover Insurance Company, the liability insurer of the motor vehicles owned by this department of the city. Plaintiff was seriously and permanently injured when struck by an automobile driven by Ronnie Coleman while working as a member of a garbage pickup crew on a sanitation truck covered by the Hanover policy. Plaintiff joined Hanover as an additional defendant in his tort action against Coleman and alleged that Hanover affords uninsured motorist protection to him as an omnibus insured under its liability policy on the sanitation truck as this coverage is mandatory under La.R.S. 22:1406 unless rejected by the insured. Hanover, in its motion for summary judgment, contends that the liability policy issued by it which covers the fleet of vehicles assigned to the department provides uninsured motorist coverage only on certain private passenger automobiles as listed in the policy and does not provide this coverage on the sanitation trucks as it was rejected by the city. Additionally Hanover contends plaintiff was not an omnibus insured under the policy because he was not occupying or “in or upon or entering into or alighting from” the truck when injured.

The trial court in written reasons sustained the motion for summary judgment on finding that the subject policy limited the uninsured motorist protection to designated private passenger cars, and that the city had orally rejected this coverage on the sanitation trucks when the policy was first written with Hanover in 1969. The court further found the policy had been renewed with this understanding each succeeding year through 1975.

We find that the rejection of plaintiffs demands by summary judgment was in error and reverse for the reasons assigned.

The principal issues presented by plaintiff for review on appeal are as follows:

1. Does the policy as written specifically exclude uninsured motorist coverage on sanitation trucks?
2. If so, has Hanover shown that there is no genuine issue of material fact as to whether the city has properly rejected this coverage which is otherwise mandatory under La.R.S. 22:1406?
3. Is plaintiff an omnibus insured under the policy?

The primary argument of plaintiff that sanitation trucks are within the term “private passenger automobiles” which are specifically afforded uninsured motorist coverage by the description of the vehicles insured in the policy is without merit. Plaintiff relies on several cases which have construed the term “private passenger automobiles” to include “pickup trucks” in extending coverage under insurance policies. Employers Mut. Liability Ins. Co. of Wis. v. Richards, 332 So.2d 588 (La.App.4th Cir. 1976); Wirick v. Wyble, 300 So.2d 571 (La.App. 3d Cir. 1974); Riker v. Aetna Casualty & Surety Company, 286 So.2d 493 (La.App. 1st Cir. 1973). The basis for such a holding in the foregoing cases was that the term “private passenger automobiles” is ambiguous when construed in relation to pickup trucks which are now commonly used for passenger purposes as well as other uses. This rationale has no analogy to a sanitation truck which has never attained any general usage by the public for passenger purposes as have pickup trucks. We find the policy as written did not include the sanitation trucks of the Department of Public Works under the description of the vehicles insured for uninsured motorist coverage.

The second and principal issue is whether the liability policy in effect in 1975, although written to exclude uninsured motorist coverage on any vehicle other than private passenger automobiles, does afford this coverage by the mandatory provisions of La.R.S. 22:1406 to the sanitation trucks also insured under this policy, or was this coverage shown to have been rejected by the city as permitted by this statute. Hanover contends the affidavits of the insurance agent, C. R. Dethloff, and the city officials show an original rejection of this coverage by the city acting through then Mayor Clyde Fant and Commissioner Dwight Saur in 1969 and subsequent rejections by the city acting through Public Works Commissioner Don Hathaway and Director of Operations Bill Lynch since 1970. Hanover does not contend that the rejection was ever made in writing, but relies on oral rejections allegedly supported by the affidavits and the policy itself. It contends the uninsured motorist statute in effect from 1969 through 1975 did not require the rejection to be in writing.

Plaintiff contends the rejection of uninsured motorist coverage is a substantial modification of the provisions of a liability policy, and to permit the introduction of oral testimony to establish the rejection would violate La.R.S. 22:628 which prohibits the use of parol evidence to vary the terms of an insurance contract.

We recognize that La.R.S. 22:628 is not directly in point to the instant sitúation as the parol evidence attempted to be introduced is not inconsistent with the language of the policy as issued. However, the principle behind this statute should apply here. There is a strong public policy behind the enactment of the uninsured motorist statute. Unless rejected, the provisions of the statute place this protection in any policy of liability insurance issued in this state. It is a fundamental rule of insurance law that coverage is to be determined by the provisions of the contract and applicable statutes, and that there can be no oral variance of the coverage provided by contract and statute. We therefore hold that proof of a waiver of such statutorily mandated coverage must be in writing to be effective.

It should be noted that the legislature has since made it clear that the rejection must be in writing by the enactment of Act 438 of 1977 which amends La.R.S. 22:1406(D).

In any event there has not been a sufficient showing in the instant case of an absence of a genuine issue of material fact that the city made even an oral rejection of this coverage to sustain a motion for summary judgment.

Plaintiff took the deposition of Dethloff, Hathaway, and Lynch, and these depositions are contained in the record in opposition to the motion for summary judgment.

Hathaway and Lynch, in their depositions, indicate they really did not know anything about this coverage and never specifically discussed uninsured motorist coverage with Dethloff. Their review of insurance coverage was cursory and they decided to continue coverage as it then existed. Nothing in their testimony shows a specific rejection of this coverage.

Dethloff’s testimony in deposition is not as positive in his recollection of his conversation with the two deceased officials of the city as that described in his prior affidavit. A jury could reasonably accept or reject his testimony as being sufficient to show a decision by the city in 1969 to reject uninsured motorist coverage. Therefore, the rejection of plaintiff’s demands against Hanover by summary judgment was in error.

Hanover, in its motion for summary judgment, also raised the question of whether plaintiff was an omnibus insured under the policy definition of an insured as it contends plaintiff was not “in or upon or entering into or alighting from” the truck at the time he was struck by the automobile. Although the trial court did not find it necessary to rule on this issue, it is argued to this court and it is appropriate for us to consider it.

In support of its motion in this regard, Hanover filed the affidavit of a coworker who declared plaintiff was engaged in loading trash into the truck at the time he was struck and was therefore not “occupying, entering into or alighting from” the truck. This single affidavit does not establish conclusively the facts surrounding the accident, and this issue should only be resolved on trial on the merits.

For the foregoing reasons, we reverse the judgment of the trial court sustaining the motion for summary judgment and rejecting plaintiff’s demands against The Hanover Insurance Company, overrule the motion for summary judgment, and remand the case for further proceedings not inconsistent with the views expressed herein. Appellee is cast for costs of this appeal. All other costs are to await final determination of this action.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Glen C. ROARK and Curtis D. Roark, Plaintiffs-Appellees, v. Johnnie MAY et ux., Defendants-Appellants.
    No. 6864.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Writ Refused Jan. 12, 1979.

      Reeves & Owens by Jack F. Owens, Jr., Harrisonburg, for defendants-appellants.
    George Griffing, Jonesville, Sam 0. Henry, III, West Monroe, for plaintiffs-appel-lees.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   FORET, Judge.

MOTION TO REMAND

The defendant-appellant, Johnnie May, in a petition entitled “Application for New Trial,” moves to remand this suit to the trial court in order to enable him to proceed with the introduction of new evidence in a new trial. The motion is unopposed.

A default judgment was rendered in this case on April 10,1978, and was amended on May 8, 1978, in favor of the plaintiffs, Glen C. Roark and Curtis D. Roark. After the delays for a suspensive appeal had run, the defendant was granted a devolutive appeal to this court on June 19, 1978.

On September 18,1978, the defendant-appellant filed a motion for a new trial in the trial court, asserting that he had discovered important new evidence germane to the outcome of this litigation. The trial court denied his application for the reason that the previously granted devolutive appeal had divested that court of jurisdiction in the matter. The next day, defendant then filed this motion before this court.

The authority of an appellate court to remand an action for proper consideration to the trial court is conferred in part by LSA-C.C.P. Article 2164, which states:

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. . . .”

Under the judicial interpretations given to this article, this court is empowered to remand a case for the consideration of new evidence. McKinney v. Levy, 212 So.2d 279 (La.App.3rd Cir. 1968). However, it is incumbent upon the party moving for a remand on the basis of new evidence to show that the evidence could not have been produced at trial. Rougeau v. State Farm Mutual Automobile Ins., 262 So.2d 803 (La.App.3rd Cir. 1972); Leger v. Delano Plantation, Inc., 350 So.2d 377 (La.App.3rd Cir. 1977).

In this instance, defendant attempts to introduce an affidavit by one of the defendants stating that the “purchase” agreement at issue was actually an “option to purchase.” However, defendant has failed in his application to offer any reason as to why he could not have appeared at the trial of this matter and offered such evidence at that time. A remand should not be granted without a strong showing that the defendant against whom a default judgment has been granted actually had a defense, that it could have been proved by substantial evidence, that the defendant is free from fault, and that an injustice will result unless a new trial is ordered. McKinney v. Levy, supra. The defendant herein has failed to make such a showing.

For the reasons assigned, the motion is denied.

MOTION DENIED.


author: BOLIN, Judge.

text:
    John Crawford HICKS, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13697.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc.
    Rehearing Denied Feb. 28, 1979.
    Writs Refused April 23, 1979.

      Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin; Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case, consolidated with fifteen related cases, involves the validity and interpretation of a “first option” agreement executed in favor of defendant, Rucker Phar-macal Company, in connection with the sale of its stock to plaintiff, who at the time of the sale was an employee of defendant. Since the issues and determinative facts are the same in all sixteen eases, we shall discuss all the cases in this opinion. The trial court found the agreement invalid and rendered judgment in favor of plaintiffs. We affirm that judgment, although on different grounds, and amend it to allow interest from the date upon which the value of their stock was computed rather than the date of judicial demand.

Rucker Pharmacal Company was chartered in 1958 as a closed corporation with its stock owned exclusively by its founders, Mr. and Mrs. Johnny B. Rucker, and a number of doctors. Shortly thereafter the corporation set aside a portion of its stock for sale to deserving employees. Purchases of this stock were made by plaintiffs at various times from 1963 to 1971.

From 1963 to 1967, the stock was sold subject to an oral agreement that the employee could not transfer this stock to a third person without first offering it back to the corporation at book value or the original sale price, whichever was greater. In 1967 a written contract was executed to evidence this agreement and all stock certificates issued to employees from that point on bore a legend referring to this contract. This contract was revised in 1969 with the additional stipulation that in the event the employee ceased to be an employee, the corporation would again have the right to repurchase the stock at either book value or the original sale price. All employees who were allowed to purchase stock executed one of the 1969 contracts, regardless of the date of their respective purchases. This contract recited the legend affixed to the stock certificates, which reads as follows:

The transferability of the shares represented by this certificate are restricted in accordance with an agreement between the registered owner hereof and Rucker Pharmacal Company, Inc., providing for the non-transferability and for the resale to Rucker Pharmacal Company, Inc., at the sales price in the event owner should leave the employ of Rucker prior to the happening of certain events. A copy of said agreement is on file at the office of Rucker Pharmacal Company, Inc., 6540 Line Avenue, Shreveport, Louisiana, available for inspection. (Emphasis ours)

During this period the corporation grew rapidly, authorizing several stock dividends and two stock splits, a two for one split in 1967 and a four for one split in 1971. Just prior to the four for one split, all employees, regardless of their tenure of employment, were allowed to purchase stock in order for them to benefit from this split.

In 1972 the corporation decided to offer its stock for sale to the general public. By this time the value of the stock on the public market was considerably higher than both the book value and the price originally paid; in some cases as much as twelve times as high. Employees were allowed to participate in the public offering and one-quarter of the stock of each was sold at market value.

Immediately upon receiving payment for their stock sold at the initial public offering, two of the plaintiffs, John Hicks and Orlis Long, resigned as employees. It was apparently their understanding that “the happening of certain events” mentioned in the stock inscription meant the event of the corporation’s public offering of its stock and that afterwards their remaining stock would be free of the restriction. The corporation, however, informed them that it considered the restriction to be still in effect and claimed the right to repurchase their stock. When the corporation informed their remaining employees of its position, there was apparently considerable dissatisfaction among them and within the next few months the remaining plaintiffs also resigned.

These suits ensued with plaintiffs demanding they be issued new stock certificates without the restrictive legend, along with damages for any decrease in value of the unrestricted stock during the time it was withheld from them. Alternatively, plaintiffs demanded an award of damages based on the highest value the unrestricted stock reached during the time it was withheld from them.

After trial, the judge retired without rendering judgment and another judge was assigned to decide the case. His judgment was based on a point of law rather than fact, and as a consequence he felt it unnecessary to review the voluminous record in its entirety.

The deciding judge held this option agreement to be an unreasonable restraint against transferability and, as such, contrary to public policy and invalid. In reaching this decision he held the agreement to be an absolute restriction on the transferability of the stock since the market value after the corporation went public greatly exceeded the price to be paid under the option. He further noted that this restriction was unlimited in its duration (i. e., it would last as long as the corporation felt inclined to impose it). Considering these factors, he held the restriction invalid as far as it purported to extend beyond the date of the public offering. It was also his opinion that Goldblum v. Boyd, 341 So.2d 436 (La.App. 2nd Cir. 1977) established the rule that the reasonableness of such option restrictions should be determined as of the time they are sought to be exercised rather than the time at which they are imposed.

As to damages, the judge found that each of the plaintiffs would have sold his remaining stock on the first possible day after leaving defendant’s employ. Therefore, he awarded plaintiffs the “bid” value of their stock on these respective days, plus interest from date of judicial demand, rejecting their claims based on the highest market value reached.

Defendant appeals. It contends the trial court erred in the following respects:

(1) In finding this option agreement to be an absolute restriction on the transferability of the stock and applying the law relative thereto.

(2) In interpreting Goldblum to establish the rule that the reasonableness of the option restriction should be considered as of the date of exercise rather than the date of imposition.

(3) In holding this option restriction to be unreasonable.

Plaintiffs answer the appeal seeking an increase in damages based on the highest market value the stock reached during the time it was withheld from them. They also seek to be awarded interest from July 7, 1972, the date they were entitled to receive their stock free of the restriction, rather than from the date of judicial demand. Although they contend the lower court judgment is correct, they further allege that the judgment may be sustained on any of the following alternative grounds:

(1) An interpretation of the 1969 contract as evidencing the intention of the parties to be that the restriction would terminate on the date of the public sale.

(2) A finding that the portion of the 1969 contract granting the corporation the option to repurchase the stock of an employee upon the termination of his employment is voidable by reason of fraud on the part of defendant in leading plaintiffs to believe the option restriction would be lifted upon the conclusion of the initial public sale, when in reality it intended the restriction to be lifted some time later.

(3) As to plaintiffs who purchased stock before the execution of the 1969 agreement, a finding that there was no consideration for this contract whereby the option was granted.

(4)As to plaintiffs Hicks and O. R. Long, a finding that the option was not timely exercised.

At the outset we feel it necessary to address defendant’s objection to the admission of parol evidence as to the meaning of the 1969 agreement. This objection is based on defendant’s position that the legend recited by the contract and affixed to the stock certificates is not a part of the contract but rather is merely a reference to the contract made in another instrument; and that without this legend, the contract is clear and unambiguous. We find this objection to be without merit. Whether this legend was technically a part of the contract makes no difference. If it is a part of the contract, the phrase “until the happening of certain events” is clearly ambiguous. If it is not part of the contract, but merely a reference to it, the reference would indicate that a term had been agreed upon but was merely omitted from the written agreement. Parol evidence is admissible to show the meaning of an ambiguous term and to prove that a material term, such as the duration of the restriction, was omitted from the written contract. Dufrene v. Tracy, 232 La. 386, 94 So.2d 297 (1957); Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367 (1953).

Defendant strenuously urges the trial court erred in its characterization of the option agreement as an absolute restriction on transferability. It contends discrepancy between the market price and the option price is not a prohibition against alienation in this case. It further argues that this restriction is valid since it was reasonable when the agreement was executed and was reasonable in light of the manner in which it was exercised. We do not find it necessary to decide these issues. Assuming the option restriction is valid in all respects, defendant cannot prevail since we find that plaintiffs and defendant had in fact agreed, by the 1969 contract, that the restriction would terminate when the company “went public.”

The evidence indicates that Johnny B. Rucker, the corporation’s president, either directly represented to plaintiffs or deliberately led them to believe that the term “the happening of certain events” meant the initial public sale of Rucker Pharmacal stock. Fourteen of the sixteen plaintiffs were top sales personnel who all testified that Mr. Rucker, before a meeting of the sales staff, made such an explanation of the term in response to a direct question as to its meaning.

The testimony of these witnesses concerning Mr. Rucker’s representations to them is entirely reasonable since Rucker, at numerous sales meetings and elsewhere, frequently reminded them that they would all be in a much better financial position because of their ownership of stock when the company went public. Mr. Rucker was apparently fond of telling the “Marion Story”, a story of another drug company that sold stock to its employees and then went public, resulting in the employees getting rich. Even the defendant’s witnesses, who testified that they did not hear any representation as to the meaning of “certain events”, stated they had heard the “Marion Story” and felt their stock would be more valuable after the public sale. A tape recording of a 1970 sales meeting, introduced into evidence, reveals Mr. Rucker telling employees, with reference to Rucker stock, that they were “sitting right on top of a gold mine.” The same message is clearly imparted in the following provision of the corporation’s supervisors manual:

7. Right here explain that every employee that is with Rucker Pharmacal before they go public will have the opportunity to buy stock at the old price. In fact, employees are the only ones that will be allowed this privilege. (Example —They are now paying $6.00 for stock selling for $35.00.) Explain when this stock goes public it will increase a minimum of 100 times in value the first sixty days. (Refer them to the Marion story.)

In no way could the stock benefit employees in the manner described by Mr. Rucker unless they were to have the right to sell the stock after it became valuable. As long as the restriction continued the stock was worth no more to employees than book value or the original sales price, regardless of the value of unrestricted stock.

The evidence also indicates that Mr. Rucker is a very intelligent man and had worked very hard for years to build a successful company. His obvious motive in selling the employees some of the stock was to enable him to attract top caliber salesmen and encourage them to work hard. By placing the restriction on alienation in the 1969 contract he would be able to keep these valuable employees so that when the company went public he would personally receive a tremendous financial benefit. Mr. Rucker and his immediate family owned almost 500,000 shares of Rucker stock. His own gain from the public offering and the subsequent increase in the value of the stock would be astronomical as compared to that of the employees.

Under these circumstances we find it unreasonable to believe that Mr. Rucker, in his relationship with the company’s top level employees, planned to mislead them into believing they could sell their stock free and clear of the restriction after the company went public, when in fact he did not intend for them to have this right. He would surely have realized that to mistreat his salesmen in this manner would adversely affect their performance and morale and probably result in termination of their employment. Therefore, we find that Mr. Rucker initially intended to benefit his employees in the exact manner related to them and contracted to end the restriction upon the public offering of Rucker stock.

This conclusion is corroborated by further evidence. Shortly after the date of the initial public offering, the two employees with the largest holdings of employee stock resigned. Reacting to what he felt was a showing of disloyalty on the part of these two key supervisors, Mr. Rucker decided to take advantage of the ambiguous wording of the contract and took the position that the restriction was still in force on employee-held stock.

This caused considerable dissatisfaction among the remaining employees and within a month Mr. Rucker was becoming aware that this position was damaging to the welfare of the company. Therefore, in order to allay employee fears that they had been deceived, Mr. Rucker changed his position by maintaining that any existing restriction on the stock was the result of SEC regulations rather than a corporate refusal to lift the restriction based on the failure of “certain events” to occur. This fact is documented by a letter from Mr. Rucker to Mr. and Mrs. Larry Blansett (P-13) and two tape recordings of a Rucker sales meeting held subsequent to the public offering (P-56A and 57A) submitted as proffers. We note that while SEC regulations may have had an effect on the transferability of stock owned by some of the employees who were the last to purchase, none of the employees who purchased stock before 1970 would be so affected. Therefore, Mr. Rucker’s position, at least with regard to this group of employees, which included Mr. Blansett, was deliberately misleading and untrue.

We are not impressed with defendant’s extensive efforts to attack the credibility of plaintiffs in connection with their testimony concerning Mr. Rucker’s explanation of the meaning of “certain events” which occurred on or about May 3,1969. The evidence does indicate that some of the plaintiffs were not present at the May 3rd meeting. However, plaintiffs all attended countless numbers of these sales meetings and were almost continually bombarded with Mr. Ruck-er’s philosophy relating to stock owned by them and the benefits they would receive from it by virtue of the company’s public offering. Under these circumstances, any minor inaccuracies as to dates concerning Mr. Rucker’s representation are immaterial.

Although a number of witnesses called on behalf of defendant testified they had never heard Mr. Rucker discuss the meaning of “certain events”, several circumstances indicate this testimony should not be given controlling weight. Most of these witnesses were currently employed by the corporation. The stock owned by them was subject to a two-year restriction in accordance with SEC regulations at the time the corporation went public and consequently they probably were not as concerned as plaintiffs about when the restriction would be lifted. The restriction upon all employee-held stock was lifted in December 1972, by action of the corporation’s management, which had the effect of totally eliminating their concern about when the restriction would be removed, and perhaps affected their testimony with regard to what they had failed to hear Mr. Rucker explain about the restriction.

For the foregoing reasons, we hold that plaintiffs and defendant, through its president Johnny B. Rucker, agreed, by the 1969 contract, that the restriction on alienation of the stock, providing for a first option in favor of defendant, would terminate upon the initial public sale of defendant’s stock, which occurred on March 9, 1972.

As to damages, plaintiffs contend the trial court’s ruling that they should be awarded the bid value of their stock on the first day it would have been available for sale after termination of their employment is erroneous. They contend damages should be awarded based on the highest market value reached by Rucker Pharmacal stock during the time it was wrongfully withheld from them. Plaintiffs also contend they should be entitled to interest from July 7, 1972, the date they were entitled to receive their stock free of the restriction, rather than from the date of judicial demand as awarded by the trial court.

We agree with the trial court that plaintiffs are not entitled to recover damages based on the highest value the stock reached. That would require speculation that plaintiffs would have been wise enough to hold their stock until the peak was reached and on that day dispose of it. We find the trial court’s determination that plaintiffs would have sold their stock at the first opportunity after termination of their employment was correct. Damages were properly awarded in favor of each plaintiff based on the market value of the stock on the day of his termination, subject to the 120-day holding period provided in the underwriter’s agreement. Consequently, all plaintiffs who terminated their employment prior to July 7,1972, the expiration date for the holding period, are entitled to the value of their stock as of that date. All plaintiffs who resigned after July 7 are entitled to the value of their stock as of the date of their resignation.

These respective dates are also the proper dates to begin the tolling of legal interest in favor of each plaintiff, rather than the date of judicial demand. All debts bear interest from “the time they become due.” La.Civil Code article 1938. However, an unliquidated claim is only due from the time it becomes ascertainable. Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978). Although the debt in this case may have been technically due on July 7, 1972, the date the plaintiffs should have received their stock unrestricted, the amount of this debt only became ascertainable on the date that the company, through its continued imposition of the restriction, prevented plaintiffs from selling their stock. As to plaintiffs John Crawford Hicks, Orlis R. Long et al, James E. Duffer, Charles C. Turner, and James Ralph More-land, all of whom resigned before July 7, this date will be the proper date from which interest will be due. As to all other plaintiffs, who resigned after July 7, the proper dates to begin the calculation of interest will be the dates of their respective resignations.

The judgment is amended to provide for interest to run from July 7,1972 until paid. Otherwise, the judgment is affirmed at appellant’s cost.

      . As part of the public offering, all plaintiffs agreed to sell one-fourth of their stock to the underwriter and further agreed that the remaining three-fourths would not be subject to sale until 120 days after March 9, 1972, the date of the initial public offering. Consequently, all plaintiffs who resigned during this 120-day period were awarded the bid value of the stock on the 120th day, July 7, 1972. All other plaintiffs, who resigned after this date, were awarded the “bid” value of their stock as of the date of their resignation.


text:
    Orlis R. LONG et al., Plaintiffs-Appellees, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13698.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

For the reasons assigned therein, the judgment is amended to provide for interest to run from July 7,1972 until paid. Otherwise, the judgment is affirmed at appellant’s cost.


text:
    James Ralph MORELAND, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13699.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

For the reasons assigned therein, the judgment is amended to provide for interest to run from July 7,1972 until paid. Otherwise, the judgment is affirmed at appellant’s cost.


text:
    Larry A. BLANSETT et ux., Plaintiffs-Appellees, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13700.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiffs-appellees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

Mr. Blansett terminated his employment with defendant on October 31, 1972. For the reasons assigned in the above mentioned case, the judgment is amended to provide for interest to run from October 31, 1972 until paid. Otherwise the judgment is affirmed at appellant’s cost.


text:
    Marcel E. CLAUSE, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13701.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts, by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

Mr. Clause terminated his employment with defendant on November 15,1972. For the reasons assigned in the above mentioned case, the judgment is amended to provide for interest to run from November 15, 1972 until paid. Otherwise the judgment is affirmed at appellant’s cost.


text:
    Samuel Mark CAMP, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13702.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

Mr. Camp terminated his employment with defendant on November 13,1972. For the reasons assigned in the above mentioned case, the judgment is amended to provide for interest to run from November 13, 1972 until paid. Otherwise the judgment is affirmed at appellant’s cost.


text:
    Jimmy Austin PAYNE, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13703.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

Mr. Payne terminated his employment with defendant on November 6, 1972. For the reasons assigned in the above mentioned case, the judgment is amended to provide for interest to run from November 6,1972 until paid. Otherwise the judgment is affirmed at appellant’s cost.


text:
    John Phillip BESSONETT et al., Plaintiffs-Appellees, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13704.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiffs-appellees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

Mr. Bessonett terminated his employment with defendant on August 21, 1972. For the reasons assigned in the above mentioned case, the judgment is amended to provide for interest to run from August 21, 1972 until paid. Otherwise the judgment is affirmed at appellant’s cost.


text:
    Donald L. LONG, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13705.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

Mr. Long terminated his employment with defendant on October 19, 1972. For the reasons assigned in the above mentioned case, the judgment is amended to provide for interest to run from October 19, 1972 until paid. Otherwise the judgment is affirmed at appellant’s cost.


text:
    Frances W. WATERS, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13706.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2nd Cir. 1978).

Ms. Waters terminated her employment with defendant on August 17, 1972. For the reasons assigned in the aboye mentioned case, the judgment is amended to provide for interest to run from August 17, 1972 until paid. Otherwise the judgment is affirmed at appellant’s cost.


text:
    James E. DUFFER, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13707.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

For the reasons assigned therein, the judgment is amended to provide for interest to run from July 7,1972 until paid. Otherwise, the judgment is affirmed at appellant’s cost.


text:
    James Edward SMITH, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13708.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

Mr. Smith terminated his employment with defendant on August 18, 1972. For the reasons assigned in the above mentioned case, the judgment is amended to provide for interest to run from August 18, 1972 until paid. Otherwise, the judgment is affirmed at appellant’s cost.


text:
    Charles C. TURNER, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13709.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

For the reasons assigned therein, the judgment is amended to provide for interest to run from July 7, 1972 until paid. Otherwise, the judgment is affirmed at appellant’s cost.


text:
    Orrin Paul CALDWELL, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13710.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

Mr. Caldwell terminated his employment with defendant on August 16, 1972. For the reasons assigned in the above mentioned case, the judgment is amended to provide for interest to run from August 16, 1972 until paid. Otherwise the judgment is affirmed at appellant’s cost.


text:
    Marvin Thomas DAVIS, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13711.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb, 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts by Kay C. Medlin, Marlin Risinger, Jr., and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

Mr. Davis terminated his employment with defendant on October 30, 1972. For the reasons assigned in the above mentioned case, the judgment is amended to provide for interest to run from October 30, 1972 until paid. Otherwise the judgment is affirmed at appellant’s cost.


text:
    William H. DAUGHTRIDGE, Plaintiff-Appellee, v. RUCKER PHARMACAL COMPANY, INC., Defendant-Appellant.
    No. 13712.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 1978.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Robert G. Pugh, Shreveport, La., for defendant-appellant.
    Blanchard, Walker, O’Quin & Roberts, by Kay C. Medlin, Marlin Risinger, Jr;, and Robert Roberts, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This case was consolidated with Hicks v. Rucker Pharmacal Company, Inc., 367 So.2d 399 (La.App. 2d Cir. 1978).

Mr. Daughtridge terminated his employment with defendant on August 16, 1972. For the reasons assigned in the above mentioned case, the judgment is amended to provide for interest to run from August 16, 1972 until paid. Otherwise the judgment is affirmed at appellant’s cost.


author: PONDER, Judge.

text:
    AIR COMPRESSORS, INC. v. BIG CHIEF CONSTRUCTION COMPANY, INC.
    No. 12324.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Rehearing Denied Feb. 12, 1979.
    Henry F. Mestayer, New Orleans, for plaintiff-appellee Air Compressors, Inc.
    Thomas G. Donelon, Metairie, for interve-nor-appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Intervenor, Jefferson Bank and Trust Company, appealed from the judgment giving priority to plaintiff’s claim over that of intervenor.

The issue is the validity of an alleged assignment of an account receivable by Big Chief Construction Company to intervenor. We affirm.

Big Chief had been borrowing from inter-venor by assigning individual invoices and receiving an advance of 80% of the amount of that invoice. On October 4, 1974, the bank required Big Chief to initiate the procedure under LSA-R.S. 9:3101 et seq. Big Chief signed the statement of assignment of accounts received required by Section 3103. This statement was recorded on October 7, as required by the same section. Also on October 4, Big Chief signed a document containing an assignment of “all accounts receivable hereafter arising or hereafter created. . . .’’On October 31, Big Chief signed another note and on the back assigned a number of accounts by invoice numbers, the method employed before October 4.

In the meantime, plaintiff on October 14, made executory in East Baton Rouge a judgment against Big Chief it had secured on October 2. The seizure, however, was not served on Continental Oil Company until November 4. At first Continental answered garnishment interrogatories saying it was not indebted to Big Chief. Later by amendment it stated that on December 30 it owed Big Chief $3,886.00 after having paid $2,769.00 since the seizure. The lower court ordered plaintiff be paid in preference to intervenor. This court reversed and remanded on a finding that there was insufficient evidence to justify a ranking. 340 So.2d 1027 (1st Cir. 1976).

Intervenor claims that its claim ranks prior to plaintiff’s seizure because the account seized had been assigned to it.

The reliance upon the assignment of future accounts on October 4 is misplaced. We entertain considerable doubt that an assignment of future accounts receivable can be made under LSA-R.S. 9:3101 et seq., a special method of assigning accounts receivable. However, an assignment made prior to recordation of the statement is not effective under the statute. LSA-R.S. 9:3104. The statement was not recorded until October 7.

Intervenor has not proved or attempted to prove that the parts of the account receivable seized by plaintiff was assigned in the document of October 31. We therefore conclude that it was not. At any rate, the assignment made other than by writing or stamping the ledger sheet, we believe, requires a writing signed by both parties. LSA-R.S. 9:3105. The assignment of October 31 was signed by the assignor only.

Neither has the intervenor proved that it secured any privilege under the assignment provisions of the Civil Code. The notice to the debtor required by C.C. Art. 2643 was not made until February. Plaintiff, a third person, had long since secured a privilege on the account. The judgment will be affirmed at intervenor’s costs.

AFFIRMED.

      . LSA-R.S. 9:3103:
      “Any person undertaking or having undertaken the acceptance of or contemplating the acceptance of assignment or assignments of accounts receivable is entitled to file in the office of the recorder of conveyances of the parish in which is located the place or places of business of the assignor a statement signed by or on behalf of the assignor and assignee containing the address of the principal place of business of the assignee, the address of the place or places of business or occupation of the assignor and a statement that the assignor has pledged or intends to pledge accounts receivable. For this purpose forms of statement substantially as follows will suffice:

        “ ‘STATEMENT OF ASSIGNMENT OF ACCOUNTS RECEIVABLE
      DATE_
      _has assigned and intends to continue to assign accounts receivable to_in accordance with the Louisiana Assignment of Accounts Receivable Law.
      “ 'The assignor is_ (an individual, a corporation, a partnership). The place of business of assignor at and/or from which is conducted the business or occupation in the course of which accounts to be assigned have been or will be contracted is at
      (Street Address City Parish
      “‘The assignee is_ (an individual, a corporation, a partnership). The principal place of business of assignee is at_
      (Street Address
      City State)
      Assignor
      Assignee)”

      . LSA-R.S. 9:3104:
      “Upon receipt of a statement of assignment of accounts receivable, the recorder of conveyances shall note thereon the date, hour and minute of filing; shall record the same in his office in the conveyance records, except in the Parish of Orleans where same shall be recorded in a book to be known as Sale of Movables Book, and shall cause the said statement to be endorsed with his certificate of recordation. Every such statement shall become effective, in the sense in which the term is used in R.S. 9:3102 from the time of filing; and said filing shall constitute public notice to all persons that assignment of accounts made in accordance with this Part, at any time during the effective Acts 1952, No. 293, § 4. Amended by Acts 1954, No. 725, § 1.”

      . LSA-R.S. 9:3105:
      “The assignment of an account receivable made pursuant to the provisions hereof and within the effective period of a statement of assignment as provided for herein may be evidenced by writing or stamping upon the ledger sheet of the assignor reflecting the account assigned any statement or legend which in substance discloses the fact of such assignment, the date thereof and the name of the assignee; and any such writing or stamping when so affixed shall be deemed to be evidence of such assignment for all purposes of this Part of the same force and effect as a writing or written instrument signed by both the assignor and assignee. Acts 1952, No. 293, § 5.”

      . LSA-C.C. Arts. 2642-2654.

      . LSA-C.C. Art. 2643:
      “The transferee is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place.
      “The transferee may nevertheless become possessed by the acceptance of the transfer by the debtor in an authentic act.”


author: GARRISON, Judge.

text:
    AMERICAN INSURANCE COMPANY v. DUO FAST DIXIE, INC., et al.
    No. 9981.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      Porteous, Toledano, Hainkel & Johnson, James L. Donovan, New Orleans, for plaintiff-appellant.
    James J. Morse, New Orleans, for defendants-appellees.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

Plaintiff in this case is a workmen’s compensation insurer of Carroll Naquin who sued to recover the amounts paid to the dependents of Clement Blanchard, Jr., an employee of Naquin who was fatally injured while working at a construction site. The trial judge found for the defendants and dismissed plaintiff’s suit. We agree.

There is little dispute as to the facts of this case. The insured employer, Naquin purchased an air compressor from defendant, Duo Fast Dixie in the early 1970’s. This compressor was wired to run on 110 volts. However, Mr. Naquin had been told that the compressor would last longer if it was operated on 220 volts. Six months after purchase an electrician rewired the machine from 110 to 220 volts. At Na-quin’s request he also made an extension cord and attached it to a special plug which was then attached to the air compressor. This cord had four wires which were connected to a four prong plug.

In June 1975 Naquin had mechanical problems with the machine. He arranged to have Duo Fast Dixie repair the compressor and to lend him a replacement unit free of charge.

The loaner — or replacement — unit was delivered by defendant Robert Troia, a salesman for Duo Fast. This machine was also a 110 volt unit. It had been tested by defendant’s service department prior to delivery.

When the loaner unit was delivered Na-quin realized that the plug on it would not fit his extension cord. He had a 110 voltage outlet available but did not choose to connect the compressor to it. Naquin removed the plug from his broken unit and attached it to the replacement unit. Troia said in his deposition that if he had noticed Naquin making some mistake he would have warned him. Neither man had any electrical training.

After the rewiring the replacement unit was plugged into a 220 voltage outlet, turned on and it appeared to function properly. However, Naquin touched it and received a shock. Troia touched it and was not shocked. Despite his testimony in deposition that when one is shocked by a machine “something would have to be attended to” and an electrician should check the equipment, Naquin decided that he had only imagined the shock and decided to use the compressor. The compressor was used all that afternoon without incident. However, the next morning Clement Blanchard Jr. was electrocuted when his forehead touched the machine.

Ambrose K. Ramsey Jr., an electrical engineer, examined the machine. His report is in the record. Ramsey concluded that the metal parts of the unit were electrified “as a result of using a 220 v outlet and an improper connection of the conductors in the extension cord and/or in the plug attached to the motor leads.”

In Louisiana, compensation benefits which have been paid may be recouped from a third party tortfeasor even though the employer was himself negligent. Vidrine v. Michigan Millers Mutual Insurance Co., 263 La. 300, 268 So.2d 233 (1972). However, the right of the insurer to recover benefits is contingent upon the employee’s right to recover from the third party. LaLande v. Index Geophysical Survey Corp., 336 So.2d 1054 (La.App. 3rd Cir. 1976); Bell v. Carolina Casualty Insurance, Co., 227 So.2d 171 (La.App. 2d Cir. 1969) w. d., 255 La. 151, 229 So.2d 733.

Appellants argue that defendants were negligent in failing to warn of the possible dangers resulting from converting the 110 volt unit to a 220 volt unit. It is true that retailers of potentially dangerous products have a duty to warn purchasers of the dangers involved in using the product. Hoffoss v. Ralston Purina Co., 341 So.2d 605 (La.App. 2d Cir. 1977). However, this duty to warn goes only to those dangers which are not obvious. There is no duty to warn of dangers of which the buyer knows or should be aware. Where the consequences of improper usage are such that they will be readily cognizable, there is no duty to warn of the particular consequences that may flow therefrom. Albert v. J. & L. Engineering Co., 214 So.2d 212 (La.App. 4th Cir. 1968); Foster v. Marshall, 341 So.2d 1354 (La.App. 2d Cir. 1977), w. d., La., 343 So.2d 1077; Leonard v. Albany Machine & Supply Co., 339 So.2d 458 (La.App. 1st Cir. 1976) w. d., La., 341 So.2d 419; Dixon v. Gutnecht, 339 So.2d 1285 (La.App. 1st Cir. 1976) w. d., La., 342 So.2d 673.

The danger involved here was created by Naquin’s improper conversion of the connection of the 110 volt unit and in then using it with a 220 voltage outlet. There is testimony that the unit contained instructions as to how to accomplish such a process properly. That one may be harmed if the connection is made improperly is obvious. Also in this case Naquin himself was shocked, yet he attributed this to his imagination and chose to use the compressor anyway.

Appellant also argues that Troia participated in the “negligent” conversion. The evidence shows that Troia removed the plug from the replacement unit. However, he did not participate in connecting the new plug but merely observed. The trial judge found no negligence on his or Duo Fast Dixie’s part. There is no evidence in the record which would indicate any manifest error on the part of the finder of fact. Canter v. Koehring Co., 283 So.2d 716 (La. 1973).

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

AFFIRMED.


text:
    James A. CROWSON, Plaintiff-Appellee, v. BAYOU STATE OIL CORPORATION, Defendant-Appellant.
    No. 13758.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.

      Blanchard, Walker, O’Quin & Roberts by Marlin Risinger, Jr., Wm. Paul Lawrence, II, Shreveport, for defendant-appellant.
    Hal V. Lyons, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

James A. Crowson seeks damages from Bayou State Oil Corporation for death and sickness in his herd of cattle alleged to have been caused by leaking oil from defendant’s pipeline contaminating the water supply in a pasture leased by plaintiff. Defendant does not dispute that an oil leak occurred and some oil washed into a drainage ditch running through plaintiff’s leased pasture for a period of several days. The issues are the sufficiency of plaintiff’s proof to substantiate the damages claimed and whether or not plaintiff took reasonable steps to mitigate his damages under the circumstances known to exist.

The trial court, without assigning reasons, rendered judgment for plaintiff awarding the total sum of $22,374.82 for death of cattle and loss of market value of the herd together with cost of auction sales.

Defendant has appealed and plaintiff has answered the appeal asking for an increase in the awards to the amount sued for, $22,-054.55 for grown cattle, and $4,686.91 for calves.

We amend and affirm the judgment for the reasons assigned in this opinion.

Plaintiff claims damages for the death of thirty-one cows and twenty calves. He further claims damages for the decrease in market value of ninety-seven cows and sixty-five calves which he contends were disposed of at auction because of their sickness resulting from consumption of oil contaminated water.

Although defendant questions the adequacy of plaintiff’s evidence to establish the specific number of cattle maintained by him in the leased pasture, and the proof that the death or sickness of any of plaintiff’s cattle was caused by the consumption of the leaking crude oil, we find there is sufficient evidence to justify the trial court’s apparent findings in these respects.

We reach this conclusion even though we find that the trial court erred in refusing to permit defendant to offer evidence of plaintiff’s conviction of receiving stolen merchandise in connection with its cross-examination of plaintiff. This evidence was offered to test his credibility and should have been permitted for this purpose. See Ashley v. Nissan Motor Corp. in U. S. A., 321 So.2d 868 (La.App. 1st Cir. 1975), writ denied 323 So.2d 478 (La.1975); Fusilier v. Employers Insurance Company of Wausau, 235 So.2d 618 (La.App. 3d Cir. 1970); Middleton v. Consolidated Underwriters, 185 So.2d 307 (La.App. 1st Cir. 1966). As this evidence is in the record in an offer of proof, defendant has not been prejudiced by the trial court’s ruling because of the scope of our appellate review of facts as well as law.

The most serious issue on this appeal is whether plaintiff could have prevented all or a part of his damages by a prompt removal of the cattle from the pasture upon discovering oil on the surface of the water standing in the drainage ditch. La.C.C. Art. 2323 provides:

The damage caused is not always estimated at the exact value of the thing destroyed or injured; it may be reduced according to circumstances, if the owner of the thing has exposed it imprudently.

The victim of a tortious act owes a duty to minimize the loss sustained by him if he is reasonably able to do so. Pope v. Spiers, 347 So.2d 1191 (La.App. 1st Cir. 1977); McKinnon v. Caddo Parish Police Jury, 262 So.2d 834 (La.App. 2d Cir. 1972); Humble Pipeline Co. v. Wm. T. Burton Industries, Inc., 221 So.2d 526 (La.App. 1st Cir. 1969). See also Hebert v. United Gas Pipe Line Company, 210 So.2d 71 (La.App. 1st Cir. 1968).

The tract leased by plaintiff, known as the Fuller Place in North Caddo Parish, contains approximately 490 acres consisting of a hill pasture and a bottom land pasture. The two pastures are separated by a cross fence and gate. The drainage ditch into which the leaking oil was found runs into the bottom land pasture near the southwest corner of the tract.

The evidence shows the oil began leaking from defendant’s pipeline about a quarter of a mile from this tract on Friday, August 8, or late Saturday, August 9, 1975. A heavy rain washed some of the oil, estimated at approximately fifty barrels, into the drainage ditch extending onto the leased property. The evidence shows this condition was discovered by plaintiff’s caretaker on Sunday, August 10, and that plaintiff himself was aware of these circumstances by Monday, August 11, 1975. Plaintiff had just recently moved this herd of cattle into the bottom pasture from the hill pasture for better grazing. Plaintiff acknowledged in his testimony that he was aware of the harm that could be caused to cattle from drinking water contaminated by crude oil, and that cattle will drink such water if exposed to the hazard.

Defendant learned of the leak and resulting flow of oil into plaintiff’s pasture on either Monday, August 11, or Tuesday, August 12 and began clean up operations on Wednesday, August 13. This operation was satisfactorily completed in approximately six days. No effort was made by plaintiff to remove his cattle from this pasture during this period.

Plaintiff testified his cattle showed no signs of illness until approximately six or seven days after he discovered the oil on the water in the drainage ditch and did not become seriously ill until twelve to fifteen days after this discovery.

The testimony of the veterinarians who testified in this matter shows that if cattle ingest a large quantity of crude oil in a short period of time they will show symptoms of illness within a few hours. This same testimony shows that the consumption of small amounts of crude oil each day over a period of several days can have a cumulative effect and will not cause cattle to become sick until a sufficient amount accumulates in the digestive tract. This is not true in the event the oil contains a large quantity of a highly toxic chemical additive which in itself can cause immediate illness. The evidence shows that although the crude oil contained a chemical additive known as Treatolite WF-63, the concentration was minimal, and this product is not toxic to the vital organs of cattle.

We conclude that the symptoms of illness in the cattle as described by plaintiff when weighed in relation to the other evidence shows the illness of the cattle was caused by the cumulative effect of daily ingestion of small quantities of oil over a period of seven to fifteen days. Therefore, had the cattle been removed within a reasonable time from exposure to the oil the damage to the herd would have been minimal if any.

Although plaintiff contends he asked for help from defendant’s employees in removing the herd and was refused, the evidence does not support this contention. Plaintiff was an experienced farmer and cattleman, grazing over 1600 acres in various locations, and had several employees, including his two sons. It is unreasonable to believe that he could not have moved the cattle back into the adjoining hill pasture at a reasonable expense and minimized the potential damage to the herd from the continued drinking of the oil contaminated water.

Under these circumstances, we find the damages claimed by plaintiff should be mitigated to one-half of the amount awarded by the trial judge.

The judgment appealed is amended to reduce the total sum awarded to plaintiff to the sum of $11,187.41, and in all other respects the judgment is affirmed. Costs of this appeal are assessed to plaintiff.


text:
    William Lum MARTIN, Plaintiff-Appellant, v. SECURITY INDUSTRIAL INSURANCE CO., Defendant-Appellee.
    No. 13762.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.

      Charles E. McConnell & Associates by S. David Holladay, Springhill, for plaintiff-appellant.
    Drew, 'White, Drew & Drew by R. Harmon Drew, Minden, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

William Lum Martin appeals the trial court judgment rejecting his demands as beneficiary under a $1,000 life insurance policy issued by Security Industrial Insurance Company on June 1, 1976, to his son, Ira H. Martin, Sr., who died of a heart attack on January 25, 1977.

The issues presented on appeal are whether the insured’s false representations on the insurance application with regard to his health bar recovery under La.R.S. 22:619(B) and secondly, if recovery is not precluded under that statute, does the “sound health” provision of the policy vitiate coverage in view of the insured’s medical history.

The trial court denied recovery on finding that the false representations made in the application violated La.R.S. 22:619(B).

We find the evidence in the record is insufficient to show that defendant relied on these misrepresentations in issuing the policy, and that defendant has not borne the burden of proving the insured was not in sound health at the time of issuance; therefore, we reverse the judgment for the reasons assigned herein.

La.R.S. 22:619(B) provides:

In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer, [emphasis added]

In interpreting La.R.S. 22:619(B), the Louisiana Supreme Court has held that the disjunctive “or” is to be treated as the conjunctive “and” and to avoid liability on the grounds of misrepresentation in the application, the insurer must meet a three-tiered burden. See Gay v. United Benefit Life Insurance Co., 283 La. 226, 96 So.2d 497 (1957). First, it must be shown that the statements were false. Second, the insurer must establish that the representations were made with an actual intent to deceive. Third, the insurance company must establish that these misstatements materially affected the risk assumed by the insurer. “Material” means that the statement must have been of the nature that, had it been true, the insurer either would not have contracted or would have contracted only at a higher premium rate. See La.C.C. Art. 1847(2); Goff v. Mutual L. Ins. Co., 131 La. 98, 59 So. 28 (1912); Trahan v. Security Life and Trust Company, 199 So.2d 617 (La.App. 3d Cir. 1967), see also Comment 22 La.L. Rev. 190, and Couch, Insurance 2d § 35:45 (1961). Therefore, for an insurer to avoid liability on the grounds of misrepresentation in a life insurance application, it must establish that false statements were made with an actual intent to deceive and that the facts were material. Gay v. United Benefit Life Insurance Co., supra; Brown v. National Old Life Ins. Co., 345 So.2d 1023 (La.App. 2d Cir. 1977); Cloud v. Security General Life Ins. Co., 352 So.2d 406 (La.App. 3d Cir. 1977); Watson v. Life Insurance Company of La., 335 So.2d 518 (La.App. 1st Cir. 1976); Jordan v. Life General Security Insurance Company, 333 So.2d 732 (La.App. 4th Cir. 1976).

The evidence in the record consists solely of the policy of insurance, the application signed by the insured, and the insured’s medical records which were introduced by stipulation.

The questions and answers asserted by the defendant as relieving it of liability are:

10.. When last sick or consulted a doctor month, year, illness, disease, injury, etc.
ANSWER: None
Name and address of doctor.
ANSWER: None
11. Has proposed Insured ever had tuberculosis, asthma, any disease of lungs, apoplexy, paralysis, heart disease, high blood pressure, mental or nervous disorder, epilepsy, convulsions, syphilis, rheumatism, arthritis, rupture, disease of circulatory system, stomach, intestines, liver, gall bladder, prostate, or thyroid gland, sugar, albumin or blood in urine, diabetes, cancer, tumor, ulcer, impaired sight or hearing, any amputation, deformity, operation?.
ANSWER: No

The medical records in evidence show that in 1972 the insured was hospitalized nineteen days in a Shreveport hospital suffering from an acute myocardial infarction coupled with a duodenal ulcer. In 1974 he spent eight days as an inpatient in the same Shreveport hospital and was diagnosed as suffering a “coronary insufficiency with an-ginal episodes, old myocardial infarction, and a duodenal ulcer.” Therefore, clearly the insured made false statements on the life insurance application. We pretermit any discussion of whether there was an actual intent to deceive on the part of the insured because the record is void of any showing that these statements if answered truthfully were material to the acceptance of the risk or hazard assumed in insuring the deceased’s life.

There is no testimony on behalf of the defendant that it would not have issued the policy had it known of the correct medical history, and we cannot make such an assumption solely on the basis of the medical records alone. To do so would subvert what jurisprudentially has been a strong burden of proof on insurers in escaping liability under La.R.S. 22:619(B).

We therefore find the trial court was in error in finding defendant was relieved of liability under the provisions of La.R.S. 22:619(B).

Defendant alternatively contends its policy never became effective because the insured was not in “sound health” on the date of issuance, June 1,1976, as required by the terms of its policy which provides:

Effective Date — This policy shall take effect on the date of issue provided the insured is then alive and in sound health, but not otherwise.

Defendant contends that the insured’s previous hospital confinement in 1972 and 1974 for a serious heart condition establishes that the insured was not in sound health at the time of the issuance of the policy on June 1, 1976, nor at any time thereafter prior to his date of death on January 25, 1977. Louisiana courts have recognized that sound health clauses in life insurance policies are not contrary to public policy and are enforceable. Shuff v. Life & Casualty Ins. Co., 164 La. 741, 114 So. 637 (1927); Pruitt v. Great Southern Life Ins. Co., 202 La. 527, 12 So.2d 261 (1943); Borer v. Security Industrial Life Insurance Co., 245 So.2d 5 (La.App. 1st Cir. 1971). Other cases hold such a provision clearly evinces an intention of the insurer to make the insured’s sound health a condition precedent to the viability of the contract. Audubon Life Insurance Co. v. Lauzervich, 242 So.2d 589 (La.App. 1st Cir. 1970); Fournier v. Gulfco Life Insurance Co., 241 So.2d 287 (La.App. 1st Cir. 1970); Aucoin v. First National Life Insurance Company, 204 So.2d 703 (La.App. 3d Cir. 1967); and Matthews v. National Life and Accident Insur. Co., 88 So.2d 454 (La.App. 2d Cir. 1956).

The critical point in time in determining the state of the insured’s health is the date of issuance, June 1, 1976, which is also the policy’s effective date. Fournier v. Gulfco Life Insurance Co., supra; Aucoin v. First National Life Insurance Company, supra; and Butler v. Vulcan Life & Accident Insurance Co., 179 So.2d 642 (La.App. 2d Cir. 1965). Life insurance is in essence a contract whereby the insurer for a stipulated premium agrees to pay the insured a certain sum upon the happening of a given event, that event being the death of the insured under the ordinary life insurance contract. Therefore, the courts in rendering ineffective a life insurance contract on the basis of a “sound health” clause have required clear and convincing evidence that the insured was not in sound health on the effective date of the policy. In Audubon Life Insurance Co. v. Lauzervich, supra, the court rendered the policy ineffective because medical deposition testimony by the insured’s attending physicians clearly indicated that an individual with subacute lymphatic leukemia could not be considered in “sound health.” In Aucoin v. First National Life Insurance Company, supra, the very day the policy was issued the insured underwent a serious aorta transplant; the court rendered the policy ineffective suggesting that it can hardly be said that an individual convalescing from an operation of such magnitude and severity was enjoying sound health on the effective date of the policy. In Fournier v. Gulfco Life Insurance Co., supra, the plaintiff stipulated that her husband, the insured, was fatally ill on the date of issuance of the policy. In Matthews v. National Life and Accident Insur. Co., supra, this court rendered ineffective a life insurance policy under a “sound health” provision where admittedly the insured was not in sound health.

In the cases summarized above which upheld the sound health provision and rendered the policy ineffective, there was either positive medical testimony as to the insured’s condition of health on the date of issuance of the policy, or other evidence so strong that no other conclusion could be reached than the insured was in unsound health on that date.

Defendant in this case would have this court infer from the records showing medical treatment in 1972,1974, and on the date of death, January 25,1977, that he was not in sound health on June 1, 1976, when the policy was issued. This is not the degree of proof that should be required by an insurer seeking to invalidate a life insurance policy under such an elusive phrase as “in sound health.”

The record of medical treatments in this case is too far removed from the date of issuance of the policy on June 1, 1976, for this court to draw such an inference as is suggested by defendant in the absence of any medical testimony to evaluate the insured’s condition as of that date. We therefore find that defendant has not borne the burden of proof required of an insurer to present clear and convincing proof of the insured’s not being in sound health on the date of issuance of the policy.

Plaintiff has not reurged the claim for penalties and attorney fees in brief to this court. In any event the circumstances shown do not indicate that the failure of the insurer to pay the claim was arbitrary, capricious, or without probable cause as is necessary for an award of attorney fees under La.R.S. 22:658.

For the foregoing reasons the judgment of the trial court is reversed, and it is ordered that there be judgment in favor of William Lum Martin and against Security Industrial Insurance Company in the sum of $1,000, together with legal interest at the rate of 7 percent thereon from date of judicial demand until paid, and all costs of these proceedings including this appeal.

      . See contra Ducote v. Life Insurance Company of Louisiana, 245 So.2d 531 (La.App. 3d Cir. 1971) the court on the basis that the insured’s physician pronounced him “fully recovered” from a recent heart attack and able to return to his normal farming activities, upheld the policy even though the insured was not in sound health at the time the policy was issued, and ruled benefits attached on the date he was pronounced fully recovered on February 3, 1970. The next day the insured suffered another heart seizure and died.


author: MARVIN, Judge.

text:
    Karl Adair COX and Linda Wickard Cox, Plaintiffs-Appellees, v. Johnny R. MOORE, Defendant-Appellant, and Lawton & Moore Builders, Inc., Defendant-Appellee.
    No. 13771.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    En Banc.
    Rehearing Denied Feb. 28, 1979.
    Writ Denied April 23, 1979.

      Cady & Beard by Roy L. Beard, Shreveport, for defendant-appellant, Johnny R. Moore, and defendant-appellee, Lawton & Moore Builders, Inc.
    Richie & Kernaghan by C. Vernon Richie, Shreveport, for plaintiffs-appellees.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

The defendant, who sold to plaintiffs a residence he had newly constructed, appeals a judgment awarding a reduction in the price of the house, expenses and attorney’s fees to plaintiffs because the residence was susceptible to flooding. Plaintiffs answered the appeal. We amend to increase the award, and affirm.

Originally filed in redhibition, the suit was converted to an action in quanti minor-is by plaintiffs after they sold their house to the federal agency (HUD) which had insured payment of plaintiffs’ loan for the purchase of the house. After the flooding dispute arose plaintiffs elected to sell to HUD to avoid a threatened foreclosure, receiving $2,167.95 less than the amount they had paid for the house about a year before. This was the amount allowed plaintiffs as a reduction in price by the lower court.

The lower court correctly found the house was susceptible to flooding at the time of the sale to plaintiffs because it was constructed on a lot in a low area of the subdivision in a natural drain. Plaintiffs’ lot drained across city streets and through a city culvert. The culvert was of insufficient diameter to handle plaintiffs’ drainage problem and an asphalt overlay of up to eight inches on the city streets compounded the problem. The inadequate culvert existed before defendant constructed on the lot. It was not established when the pavement was overlaid, but it was established that the flooding problem existed at the time of the sale.

Plaintiffs purchased the house in November, 1975. After heavy rainfalls between May and September, 1976, the house was flooded three different times. After the flooding commenced and upon plaintiffs’ complaint, defendant attempted to avoid further problems by digging a ditch and erecting a retaining wall on the property. Shortly after these efforts were completed, the house flooded again and was vacated by plaintiffs. In December, 1976, plaintiffs sold to HUD.

In Davis v. Davis, 353 So.2d 1060 (La.App.2d Cir. 1977) and in Ford v. Broussard, 248 So.2d 629 (La.App.3d Cir. 1971), it was held that susceptibility to flooding is a redhibitory vice in a residence. Defendant contends that these cases are inapplicable because in both cases the seller failed to disclose what was known to him, the fact that the house had flooded before the sale and that here, the house had not flooded before the sale, and that after plaintiffs sold to HUD the flooding problem was eliminated by the installation of a culvert of larger diameter. As long as a redhibitory vice exists at the time of the sale, the buyer is allowed the remedy of redhibition or reduction in price and notwithstanding the curability of the defect. CC Arts. 2530, 2520. Curability may affect the amount of the damages and expenses under CC 2545 but not the right to claim such damages and expenses. See Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973); Ticheli v. Silmon, 304 So.2d 792; 49 Tu.L. Rev. 484 (La.App.2d Cir. 1974); Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App.1st Cir. 1977). Defendant is not benefitted by CC Art. 2531. He is a manufacturer (See Schamens, infra) and not a mere seller. Bums, supra. Article 2531 requires restoration of the purchase price even if the seller is unable to repair.

Defendant also contends he was powerless to direct the City’s handling of the drainage problem away from the subdivision. Redhibition is not so much directed toward who is at fault in causing the vice to exist but is directed toward the warranty oí the seller against vices in the thing sold. Hob’s Refrigeration & Air Conditioning, Inc. v. Poche, 304 So.2d 326 (La.1974).

Defendant was a builder in one capacity or another in this subdivision for several years. A vendor-builder of a residence is a manufacturer who cannot avoid the conclusively presumptive knowledge of defects in the thing he manufactures. Schamens v. Crow, 326 So.2d 621 (La.App.2d Cir. 1975). That the house was below a small hill and that the drainage culvert a block or so away from the house was inadequate did not make the house’s susceptibility to flooding clearly evident to plaintiff’s inexperienced eyes or discoverable by simple inspection under CC 2521. See Davis, supra.

Defendant is liable for damages, expenses and attorney’s fees. CC 2545. In answer to defendant’s appeal, plaintiffs seek an increase in the award. Plaintiffs sold the house to HUD without warranty. HUD, some three months later, sold the house without warranty to the highest bidder on open bid for about $6,000 less than plaintiffs originally paid for it. After expending some $800 to replace carpet and repair other flood damage the bidder sold the house with warranty ten months after the purchase from HUD for about $10,000 more than was paid HUD. We find no abuse of discretion in the determination of the reduction award. The record also supports the award made for sums expended by plaintiffs in improvements to their home (yard and patio) and for carpet cleaning after the flooding. The lower court failed to allow, however, the expenses plaintiffs incurred for moving into and out of the house ($146) and for the cost of removing a fence ($165). The object of the provisions governing redhibitory vices is to restore the purchaser, as much as possible, to the condition he enjoyed prior to the sale. Alexander v. Burroughs Corp., 359 So.2d 607 (La. 1978). On this authority we allow these items as damages and expenses under CC 2545.

Alexander is also authority for the lower court’s disallowing as damages and expense, nine mortgage payments, totaling $2,012, made by plaintiffs during the time they occupied the house. The principal payments were taken into account in computing the reduction in price. A purchaser’s use of the thing with a redhibitory vice may be allowed as a credit in appropriate circumstances. Alexander, supra, at pp. 610-612. The award of attorney’s fees was based on time expended and not on the amount of the award and was within the lower court’s discretion. We amend to increase the award by $500 for the time expended by the attorney after the trial below.

Accordingly, judgment is amended to increase the amount awarded from $2,943.87 to $3,254.87 and to allow legal interest on the increased amount from the date defendant was put in default, September 23,1976. Alexander, supra. Judgment is also amended to increase attorney’s fees from $2,500 to $3,000, with legal interest from judicial demand.

As thus amended, and at defendant’s cost, judgment is affirmed.


text:
    Charles Ray RIST, Plaintiff-Appellee, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellant.
    No. 13773.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    En Banc.
    Rehearing Denied Feb. 28, 1979.
    Cook, Clark, Egan, Yancey & King by Steven H. Beadles, Shreveport, for defendant-appellant.
    DeLaune & Blondeau by Harvey P. De-Laune, Bossier City, for plaintiff-appellee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

In this suit on a loss under a fire insurance policy, the lower court held that although the fire was the result of arson, the evidence was insufficient to exclude every reasonable hypothesis except that plaintiff, or someone acting for him, was responsible, and rendered judgment for plaintiff. The insurer appeals. We affirm.

The record shows a multitude of suspicious circumstances incriminating plaintiff. Plaintiff was in debt, had unsuccessfully attempted to sell the house, had earlier declared bankruptcy, and had a bad credit rating and a judgment against him for about $1,900. Shortly before the fire, plaintiff purchased in his parents’ name and had delivered to the house, which was furnished but not regularly occupied, several items of new furniture and appliances which plaintiff intended to use to establish another home with his girlfriend. Plaintiff was living with his girlfriend for some time before the fire. After the fire and before trial they married.

Plaintiff had instructed his then girlfriend to purchase the insurance on the house and its contents. Within the week preceding the fire plaintiff removed some of the new furniture and appliances from the house, some of which, such as the washing machine and television, he replaced with older items. After the fire plaintiff told investigators that all of the recently purchased items were in the house and were destroyed by the fire.

Plaintiff’s girlfriend admittedly lied to the arson investigators when she denied that plaintiff’s new washing machine was stored in her utility shed. Under similar questioning by arson investigators, when asked why he lied as to whether the washing machine and dryer were destroyed in the fire, plaintiff stated, “I don’t know.”

Offsetting this evidence was testimony that plaintiff was earning a gainful wage as a full time employee at the paper mill in nearby Springhill and that plaintiff, in the company of his girlfriend and another couple, was in several restaurants and nightclubs in and around Bossier City from the evening before and until the early morning fire occurred about 3:00 a. m.

While apparently inclined to reject the alibi testimony of plaintiff and his girlfriend-wife, the lower court declined to reject what was essentially the same alibi testimony by the other couple, although there was minute variance in the testimony. On this point, the lower court observed: “Rejecting the testimony of plaintiff and his wife . . . as to his activities

. before the fire would still leave the testimony of the two friends . who were with them . . . until around 3:00 a. m. that Saturday morning.”

The lower court had the opportunity to observe the witnesses and either to reject or to accept as true, their individual testimony. While reasonable minds might differ, we cannot say that the lower court committed manifest error or was clearly wrong in its findings and conclusions. Arceneaux v. Domingue, et al., 365 So.2d 1330 (La.1978). Wallace v. State Farm Fire & Cas. Ins. Co., 345 So.2d 1004 (La.App.2d Cir. 1977).

We adopt an excellently detailed and authoritatively supported opinion of the lower court, which we summarize here, and at defendant’s cost, affirm.


author: GULOTTA, Judge.

text:
    APCOA, INC. v. HOLIDAY INNS, INC.
    No. 9854.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied Feb. 15, 1979.

      Hammett, Leake, Hammett, Hulse & Nelson, Harry D. Hoskins, III, New Orleans, for plaintiff-appellant.
    Leach, Paysee & Baldwin, Ford J. Dieth, New Orleans, for defendant-appellee.
    Before GULOTTA, BOUTALL and BEER, JJ.
   GULOTTA, Judge.

Plaintiff agreed in writing to furnish defendant eighty-five designated parking spaces, on a monthly basis, for use by defendant’s guests in a downtown parking garage operated by plaintiff. The contract signed on July 22, 1975 provided for a one year term commencing on September 1, 1975 and terminating on August 31, 1976. Apparently, by mutual consent, the contract was terminated on July 7, 1976.

Judgment was rendered in favor of plaintiff in the sum of $9,538.48, the amount plaintiff claims defendant owed in accumulated unpaid rentals from the commencement of the agreement to the July 7th termination date. The judgment, however, allows defendant a credit of $1,839.23. It is from that credit allowance that plaintiff appeals. We affirm.

It is plaintiff’s contention that the trial judge erred in 1) failing to grant its motion for summary judgment; 2) not awarding expenses and attorney fees because of defendant’s failure to admit (later proved) the genuineness of the contract and certain exhibits; and 3) awarding defendant the $1,839.23 credit.

Disposing of these contentions in the order in which they are presented, we first conclude that under LSA-C.C.P. art. 968 the judgment of the trial court denying plaintiff’s motion for summary judgment is not appealable, and, therefore, we will not consider this assignment of error. See Bourgeois v. Brown & Root, Inc., 303 So.2d 217 (La.App. 4th Cir., 1974); Sim v. Beauregard Electric Cooperative, 241 So.2d 26 (La. App. 3rd Cir., 1970), writ denied 257 La. 278, 242 So.2d 248 (1971); Bruno v. Hartford Accident & Indemnity Co., 337 So.2d 241 (La.App. 3rd Cir., 1976).

We reject further plaintiff’s claim of entitlement to expenses and attorney fees because of defendants’ failure to admit the genuineness of documents requested by plaintiff. As pointed out by plaintiff, LSA-C.C.P. art. 1472 provides for the assessment of expenses and attorney fees where a party fails to admit the genuineness of any document, where requested, when the genuineness is subsequently proved. However, this article further provides that the court will not make such an award where the request is objectionable, or the admission sought was of no substantial importance, or the party failing to admit had reasonable grounds to believe he might prevail, or “there was any other good reason for the failure to admit.” In the opposition to the motion for summary judgment, defendant questions the authority of the signatory to the contract on behalf of Holiday Inns, Inc. and claims that plaintiff failed to provide eight-five designated parking spaces and needed security. Furthermore, testimony was offered by defendant generally supporting the assertions made in the opposition.

Considering the averments in the opposition and the attached supporting affidavit, as well as the testimony, we conclude defendant “had reasonable grounds to believe that he might prevail . . .’’or that “there was other good reasons for the failure to admit.” Under the circumstances, we conclude the trial judge properly did not award plaintiff expenses and attorney fees.

Finally, we cannot say the trial judge erred in awarding defendant a credit in the sum of $1,839.23. The amount claimed by plaintiff represents rental charges from September 1, 1975 through July 1, 1976. In connection with the payments made to plaintiff, Joseph M. Rault, Jr., the president of Dome Stadium Hotel, Inc., a franchise of defendant, testified that the $1,839.23 was paid to plaintiff between June 20th and July 7th, the termination date of the contract. His testimony was generally corroborated by Miles Clements, the desk manager. We recognize, as pointed out by plaintiff, that ledger sheets introduced into evidence do not necessarily support the total amount of the credit, and the manager of plaintiff’s garage indicated that no payments in cash were made in June or early July of 1976. Nevertheless, the trial judge accepted the testimony of the motel owner and the motel front desk manager and rejected the testimony of the parking garage manager. The credit award in favor of defendant is a determination made by the trial judge based on credibility. We cannot say those credibility findings are in error. The judgment is affirmed.

AFFIRMED.