author: MARVIN, Judge.

text:
    Stuart H. BURRIS v. William T. GAY, Jr. and Sandra Querbes Gay.
    No. 12755.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writ Refused Feb. 13, 1976.

      Booth, Lockard, Jack, Pleasant & Les-age by Troy E. Bain, Shreveport, for defendants-appellants.
    Cady & Beard by William M. Cady, III, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and HEARD, JJ-
   MARVIN, Judge.

Defendants, Mr. and Mrs. Gay, vendees and debtors under a vendor’s lien-promissory note, appeal from a money judgment below equal to the amount stipulated in the lien and note as attorney’s fees. We affirm the trial court.

The note and vendor’s lien were executed on May 28, 1973, for $44,500.00, payable in monthly installments of $358.50, beginning June 1, 1973. As required by the credit deed in which the vendor’s lien was retained, hazard insurance on the improvements was obtained by the vendees.

Seventeen monthly installment payments were made on the note, each of which was paid approximately two weeks after it became due. The plaintiff-vendor pledged the note for a bank loan on which vendor’s installment payment to the bank became due on the 15th of each month. Plaintiff-vendor, with some regularity, contacted or attempted to contact the husband-vendee when the payments on the note were not made by the 15th of the month. Plaintiff’s last, but unsuccessful attempt to contact the husband-vendee about a late payment was in August, 1974, when the monthly payment was not received by plaintiff until August 28, 1974.

The insurance policy on the improvements on the property was written for a three-year term beginning June 29, 1973. Premiums were payable annually. During the time before this suit arose, the property insurer paid some $190.00 for damage to the roof of the home on the property covered by the policy. Before Mr. Gay cashed the check for this loss, he sought and obtained the vendor’s approval to do so as the vendor’s interest as “Lienholder” was indicated on the policy' of insurance and apparently, we infer, on the check.

The monthly installment on the note for December, 1974, was not paid until about December 18. About that time or perhaps the next day, the vendor received from the property insurer a copy of a notice of cancellation of the insurance, addressed to Mr. Gay, and indicating the vendor by name and address, as lienholder, for purposes of a “notice copy.” The cancellation was to be effective December 29, 1974, because of nonpayment of the premium due on June 24, 1974. The next monthly installment had not been paid by January 22, 1975. About that time, or a day or so later, the vendor turned the note over to his attorney to file suit.

On January 24, 1975, an order of seizure and sale issued on a petition for executory process filed on that date by vendor. An attempt was made by Mr. and Mrs. Gay to pay the January installment shortly after the time suit was filed, but this was refused by vendor and his attorney. A written offer was made to pay the total amount due, except attorney’s fees, on February 13, 1975, by defendants’ attorney.

On April 1, 1975, the vendees petitioned to enjoin, and obtained a temporary restraining order against, the executory process. Other pleadings and exceptions — now moot — were filed. Eventually, by stipulation and agreement, payment of the principal and interest was made by vendees to vendor, rescinding the order of seizure and sale and transforming the case into an ordinary proceeding. It was stipulated that the “issues” of the case would not be changed. The crux of the lawsuit thus remaining, is whether or not vendees are liable for attorney’s fees as provided in the note and credit deed.

The credit deed in pertinent part reads as follows:

“In the event of failure to pay any of said installments when due, . . or failure to keep said buildings insured, then, and in that event, each and all notes shall immediately become due and collectible at the option of the holder.
“And in order to secure the payment of said note -, interest, costs and attorney’s fees, a special mortgage and vendor’s privilege is hereby stipulated on said property in favor of said vendor, or any future holder of said note -, said purchaser - agreeing not to alienate, deteriorate or encumber said property to the prejudice of this mortgage.
“In event of suit for collection of said note or any other amount which may be due under this contract, or when said claims are placed in the hands of an attorney for collection, such purchaser agrees to pay the fees of such attorney at law who may be employed for that purpose, which fees are hereby fixed at ten per cent (10%) on the amount to be collected; . . . ”
Similar language is contained in the note:
“FOR VALUE RECEIVED I promise to pay to the order of FUTURE HOLDER FORTY-FOUR THOUSAND FIVE HUNDRED AND NO/100 ($44,500.00) -DOLLARS With . . . interest from date until paid and all attorney’s fees incurred in the collection of this note, or any portion thereof including interest, which fees are hereby fixed at 10 per cent on the amount to be collected. Principal and interest payable as follows:
******
“Failure to pay any installment when due, or failure to pay taxes before delinquent, or failure to keep the property insured shall, at the option of the holder hereof, mature the entire unpaid balance, which shall then become immediately due and exigible.”

The note also contains this provision :

“The makers, endorsers, guarantors, and sureties of this note hereby severally waive presentment for payment, demand, notice of non-payment and protest, all pleas of division or discussion, and consent that time of payment may be extended without notice thereof.” (Emphasis supplied).

In the petition for executory process, plaintiff alleged the defendants’ failure to pay when due the January, 1975, installment, the failure of defendants to keep the property insured and the failure of defendants to prevent gross deterioration of the improvements on the property, as grounds for maturing the note in its entirety.

Defendants contend that plaintiff, “by waiver and estoppel” had lost his right to accelerate the amount due by reason of his repeated acceptance of late payments. Defendants denied their failure to maintain the insurance and dénied the allegations regarding deterioration of the property. The record establishes defendants’ failure to maintain the insurance. The servicing agent of the insurer testified to this and the notice sent to plaintiff as lienholder and to Mr. Gay as property owner on December 17, 1974, is in the record. Defendants admit the fact of the lateness of payments made on the note, but contend estop-pel, waiver, and that by continually accepting late payments, the plaintiff could not successfully claim attorney’s fees without expressly notifying defendants of his intention that they strictly comply with the contract in the future. In effect, defendants contend a putting in default is necessary before plaintiff is entitled to attorney’s fees. Defendants rely primarily on Guttuso and St. Charles Dairy.

In Guttuso, Judge Lemmon, as the organ of the court, discussed a debtor’s liability for attorney fees based upon habitually late payments despite the creditor’s acceptance thereof, holding:

“[W]hen the obligor, by reason of previous conduct of the obligee, is justified in believing that absolute punctuality of performance is not expected of him and will not be insisted upon, the obligee cannot exact a penalty for delay or delinquency without first providing adequate notice of his intention to require strict compliance in the future.” 270 So.2d 326, 327.

If the failure to pay installments timely-were the only basis upon which to mature the unpaid balance of the note in the instant case, then we might find Guttuso perhaps more persuasive. See also Rex Credit Co. v. Kirsch, 4 So.2d 797 (Orl.App.1941); Emblem, Inc. v. Picolo, 123 So.2d 799 (La.App. 4th Cir. 1960). Mere acquiescence, or forebearance, however, does not create estoppel, particularly when, as here, the obligee periodically complained or attempted to complain to the husband-obli-gor about the payments being late.

The effect of St. Charles Dairy is discussed in Maurin v. Adam Lumber Co., 140 So.2d 804 (La.App. 4th Cir. 1962). There the court said:

“Our attention is directed to St. Charles Dairy, Inc. v. Hayes, Ir., 233 La. 217, 96 So.2d 494, in which the Supreme Court, referring to Succession of Foster, 51 La.Ann. 1670, 26 So. 568, said that, where the holder of a note attempts to enforce such a provision for an attorney’s fee, ‘the burden rests upon the plaintiff, seeking to recover, * * * to show that there was a necessity for so doing * * *.’ However, a reading of the decision in Succession of Foster, supra, indicates that that was so held only because the note itself provided that the attorney’s fee would be due only if it appeared that there was ‘necessity’ for employing the attorneys. The Court discussed the wording of such clauses and said:
“ ‘The contracting parties were at liberty to agree that attorney’s fees should be paid in the particular case for which, as a matter of fact, provision has been made, or they might have agreed that they should be paid where the contingency was more imminent or more remote. Thus, instead of agreeing that the maker of the notes should pay such fees “in case it becomes necessary to resort to legal proceedings for the recovery of the amount of said notes, or any part thereof, which fees are hereby fixed at ten per cent, on the amount sued for,” as their contract reads, they might have imposed such liability on the maker of the notes in the event of their nonpayment at maturity, with or without previous demand and refusal or neglect to pay * * * 9
“[1] In other words, what the Supreme Court said in Succession of Foster and approved in St. Charles Dairy, Inc. v. Hayes, Ir., was that if a note requires a showing of necessity for the employment of attorneys, before the fees may be claimed, the plaintiff must show that amicable demand had produced no results and that, therefore, there was necessity, but that if such a note merely provides that the fees would be due ‘in event of * * * nonpayment at maturity,’ then all that would be necessary would be to show nonpayment. The note in the case before us does not require that necessity be shown, but provides only that the attorney’s fees will be due ‘in the event this note is not paid at its maturity and is placed in the hands of an attorney at law for collection * * * Accordingly not only do the facts here show that demand was made, but the law as established by the Supreme Court in the two cases cited gives the holder of the note the right to demand the attorney’s fee merely as a result of the failure of the maker of the note to pay at maturity.
“[2, 3] We repeat, of course, that if the evidence showed an agreement to extend, then the attorney’s fee could not be collected without a termination of the extension, but the record does not justify the conclusion that there was such an agreement.
“The plaintiff is entitled to the balance due on the note, together with interest and the attorney’s fee.”

But see First Nat. Bank of Jefferson Parish v. Kindermann, 280 So.2d 888 (La. App. 4th Cir. 1973); writs denied 282 So.2d 720 (La.1973). Factually St. Charles Dairy is inapposite and the language present there is not present here.

We prefer, however, to view the rights and liabilities of the parties here under the contract itself, which is the law between the parties, together with the appropriate articles of the civil code as interpreted by the jurisprudence.

In the credit deed and the note, the defendants obligated themselves to maintain or “keep” insurance on the property and agreed that their failure to do so would mature the note in its entirety, at the option of the holder of the note. They also agreed to pay attorney’s fees (1) in the event of suit for collection of the note or any other amount which may be due under the contract, or (2) when said claims are placed with an attorney for collection. There can be no claim of acquiescence by plaintiff of the defendants’ failure to keep the property insured. The contract provides for maturing the indebtedness because of this, as well as for the failure to pay any installment when due.

Several articles of the Louisiana Civil Code provide guidelines for our interpretation of the credit deed and note and the rights and liabilities of the parties. Their contract is the “law” between them. Art. 1901. The obligation to pay money is characterized as an obligation to give (Art. 1905) and the failure to pay renders the obligor liable for damages (Art. 1907). The damages due for this failure to pay the law calls interest (Art. 1935), thus the provisions of the code for legal and conventional interest (Arts. 1936, et seq.). Of course, the parties can agree or bind themselves to obligations beyond those of the code, for additional penalties or damages, unless reprobated by law or contrary to good morals. See Arts. 2117 et seq. relating to penal clauses. The penal clause of this article and of Arts. 2118, 2120, 2124, 2125, is synonymous with liquidated damages. Pennington v. Drews, 218 La. 258, 49 So.2d 5 (1950). See also W. K. Henderson Iron Works & Supply Co. v. Meriwether Supply Co., 178 La. 516, 152 So. 69 (1934).

Arts. 1911 through 1914 are also pertinent. In contracts to give or to do, the risk of loss of a thing may be transferred to the person who is to receive it by putting him into default. Art. 1912 also provides that “in cases hereafter provided for” the putting into default is a prerequisite to the recovery of damages. It is noted that promissory notes and bills of exchange are excluded from the rule of Art. 1914 relating to performance under reciprocal obligations to be performed at different times. Art. 1911 provides that a debtor may be put into default by the terms of the contract, by the act of the creditor or by operation of law. One of the forms or methods of putting into default is the protest, made by a notary. See R.S. 10:3-501 et seq., Part 5, Presentment, Notice of Dishonor and Protest, under Commercial Laws, Act 92 of 1974. L.R.S. 10:3-511(2) (a) allows express waiver of protest, notice of dishonor and presentment.

In the instant case, there is an express waiver in the note by the defendants of presentment for payment, demand, notice of nonpayment, and protest. The note and the credit deed state defendants’ agreement that their failure to keep the property insured shall mature the note in its entirety at the option of the holder. In Snider v. Bozarth, 180 So.2d 800, 801 (La.App. 4th Cir. 1965), the court stated:

“[2, 3] A promissory note made payable on demand, although due and demanda-ble from the moment of its execution, does not become overdue and in default until after demand for its payment has been made. (See Holstead v. Lewis, La.App., 160 So. 834, 837). Since attorney’s fees stipulated for in a note are considered as being in the nature of ‘liquidated damages,’ (See W. K. Henderson Iron Works & Supply Co. v. Meriwether Supply Co., 178 La. 516, 152 So. 69) our Courts have refused to enforce the stipulation where the maker has not been put in default by a prior demand for payment, or where at least no showing is made that such a demand would have been impractical and useless or where it is not shown that some other justification existed for employing an attorney to enforce collection.”

The express waivers in the note, including that of demand and of protest, in the note by the defendants, and the terms of the note and contract waives further putting in default under La.C.C. Art. 1911.

Finally, defendants urge that in the event attorney fees are proper, the trial court’s award of $4,402.74 should be found excessive. We find no merit in this contention. The stipulation in the note calls for the fee to be fixed at 10 per cent of the amount to be collected. This figure was set by agreement of the parties. “Agreements legally entered into have the effect of laws on those who have formed them . . . ” LSA-C.C. Art. 1901. There is nothing in the record to indicate that the figure set for attorney fees was not mutually agreeable. While this court is required to give all just relief to which one is entitled (See LSA-C.C.P. Art. 2164), we cannot relieve one from a legal obligation which in retrospect he claims was imprudently contracted.

The judgment below, at appellant’s cost, is

Affirmed.

      . The attorney for vendor is the notary before whom vendor executed the credit deed. The attorney for vendees-appellants is the attorney before whom the vendees executed the credit deed and the note, paraphed by him for identification with the credit deed.

      . Guttuso v. Jax Federal Credit Union, 270 So.2d 326 (La.App. 4th Cir. 1972).

      . St. Charles Dairy, Inc. v. Hayes, Jr., 233 La. 217, 96 So.2d 494 (1957).


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    AMERICAN NATIONAL BANK OF CHEYENNE, WYOMING, Plaintiff-Appellee, v. Denny E. GAMBLE et ux., Defendants-Appellants.
    No. 12756.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.

      Pugh & Nelson by Sydney B. Nelson, Shreveport, for defendants-appellants.
    Milton C. Trichel, Jr., Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and GLAD-NEY, JJ.
   PRICE, Judge.

American National Bank of Cheyenne, Wyoming, as assignee of Century Life Insurance Company, brought this action against Dr. Denny E. Gamble, and his wife, Kathryn C. Gamble, seeking to recover the accelerated balance owed on a promissory note and for recognition of its right to a first lien and privilege on certain properties mortgaged to secure the note. By supplemental pleadings plaintiff also joined as defendant, Denny Gamble Homes, Inc., alleging this defendant acquired the mortgaged properties under an agreement wherein it assumed the indebtedness and thereby became liable in solido with the original makers of the note.

Plaintiff asks for judgment for the alleged balance owed of $48,490.11, together with eight per cent interest from July 9, 1970, and ten per cent attorney fees.

Defendants answered denying the note was in default as they contend there have been payments made and other sums received and unaccounted for by plaintiff’s assignor, Century, that when properly considered, render the note in a current condition. The trial court found for plaintiff and defendants have appealed.

This suit arises from the complicated financial activities of the defendants. On July 20, 1964, defendants, Denny and Kathryn Gamble, executed the promissory note in the principal amount of $65,000, payable to the order of Century Life Insurance Company. No payments on the principal were due until July 20, 1977, at which time the full amount of $65,000 would mature. However, interest on the principal was payable in monthly installments as it accrued.

The note was secured by a mortgage on four pieces of property at that time owned by the Gambles. As additional security, the Gambles assigned their interest in certain “whole life” insurance policies to Century. The policies were “keyman” insurance policies owned by Denny Gamble Homes, Inc. and insured the lives of Dr. and Mrs. Gamble. The defendants believed that the premiums paid on the insurance policies would be tax deductible by the corporation and that Dr. and Mrs. Gamble could claim personal tax deductions for the monthly interest payments on the $65,000 loan. It was intended that when the $65,000 promissory note matured in 1977, the cash value of the insurance policies would be more than enough to satisfy the entire indebtedness of $65,000.

The Internal Revenue Service disagreed with defendants’ interpretation of the tax laws regarding the deductibility of the insurance premiums. This fact caused Century and the Gambles to amend the note and mortgage in December of 1964, to provide for amortized payments on the promissory note and to release the insurance policies as security for the note.

Plaintiff purchased the note in question from Century on December 9, 1968, under a “warehousing” agreement. This contract obligated Century to repurchase the note within six months. However, when Century was placed in permanent receivership on October 1, 1969, it defaulted on its obligation to repurchase.

Defendants’ last payment on the note was in July of 1970. In December of 1970, plaintiff filed this suit to collect the balance alleged to be owned on the note.

The' suit went to trial in May of 1972. Plaintiff offered the testimony of a former vice-president, T. A. Ernest, who testified as to the correctness of the balance owed by defendants according to the records of American National Bank. Defendants presented the testimony of Dr. Gamble and certain exhibits on which they rely to establish payments allegedly made for which no credit was received on the principal balance owed. Defendants’ inadequate bookkeeping and Century’s absence from the suit made the factual issues extremely difficult to analyze and resolve. During the course of trial, the court granted a continuance to permit defendants to engage a certified public accountant to make an analysis of the evidence introduced to present a more understandable evaluation of the complex factual issues involved.

When trial resumed in May of 1974, defendants’ accountant, Edward B. Shaw, was called to testify. He presented two schedules prepared by him reflecting the payments made and balance due on the note as claimed by plaintiff on the one hand and by defendants on the other. Also reflected on the schedules are payments made to and disbursements from an escrow account established in connection with the provisions of the mortgage to facilitate the payment of taxes and insurance premiums relating to the properties covered by the mortgage. He made no effort to determine the authenticity of any payment claimed and restricted his function to correlating the documentary and other evidence presented by either side to reflect their respective positions in a more understandable manner.

The schedule projecting plaintiff’s evidence showed a balance due on the note of $48,537.48, while the other schedule reflecting the credits claimed by defendants showed a balance due of $37,597.57. During the period of the continuance, certain property subject to the mortgage was sold by agreement of the parties for a total price of $39,500, and this sum was applied on the note. Defendants contend this amount satisfied any liability they might have had on the note, while plaintiff maintains there is a remaining balance owed after the credit of the sum.

The trial judge rendered judgment in favor of plaintiff in the amount of $22,840.99 plus eight per cent per annum interest thereon from September 6, 1972, ten per cent attorney fees on such interest and cast defendants with all costs of the suit. The judgment also recognized plaintiff’s mortgage on the two remaining pieces of property and ordered their sale to satisfy the judgment. The trial judge gave no reasons for his judgment.

On this appeal defendants assign two specifications of error:

1. That the trial court based its judgment on a finding that plaintiff was a holder in due course of defendants’ promissory note; and
2. The trial court erred in failing to give defendants credit for advance payments they made to Century on the note sued upon by plaintiff.

We find that defendants’ first specification of error lacks merit as the record shows plaintiff conceded at -the time of trial it was not a holder in due course and the case was not tried under this theory. For this reason we must assume the trial judge would not have accorded plaintiff this status in arriving at his decision.

The second and principal issue made by appellants concerns the failure of the trial judge to find defendants were entitled to the various credits claimed for monies allegedly received by Century and not applied against the subject loan.

Louisiana Code of Civil Procedure Article 1005 provides that the extinguishment of an obligation is an affirmative defense.

Louisiana Civil Code Article 2232 is pertinent to establishing the burden of proof on defendants in- this situation. It provides as follows:

He who claims the execution of an obligation must prove it.
On the other hand, he who contends that he is exonerated, must prove the payment or the fact which has produced the extinction of the obligation. (Emphasis supplied)

Thus the burden to prove discharge of the obligation by payment rests squarely on defendants in this case. Our review is limited primarily to a factual review of the sufficiency of the proof offered by defendants seeking to show payment.

Defendants have not specified precisely in what manner the trial court erred. Rather, they choose to rely on the accountant’s schedule reflecting defendants’ documentary evidence to show they have no liability on the note. Since the two schedules prepared by the accountant are in agreement on the vast majority of items, we will consider only the instances wherein they differ.

The discrepancies between the schedules fáll into three types of transactions:

1. Certain monthly payments in the amounts provided by the mortgage note which are alleged to have been paid by bank drafts drawn by Century on the account of Dr, and Mrs. Gamble for which no corresponding credit appears in records;
2. Disbursements from the escrow account which should have been credited on the principal balance of the mortgage which did not appear on the records of plaintiff;
3. Certain policy loan and cash surrender values of the life insurance policies issued on the lives of the Gambles concurrent with the initiation of the subject loan.

In support of their claim that monthly payments were paid by bank draft for which no credit was received, defendants introduced a number of drafts for the period in question.

Two of the drafts submitted are not supported by proof they were paid when presented to the payee bank for acceptance. These exhibits are photo copies of the face of the draft and contain no markings by the bank to show payment. The records show there were occasions when defendants did not punctually accept for payment drafts forwarded by century for the monthly installments. Instead, defendant, Gamble, subsequently forwarded his personal check to cover the dishonored drafts. Under the circumstances shown, we do not find defendants have proven by a preponderance of the evidence that the disputed drafts were honored and the proceeds received by Century who failed to credit them to defendants’ account.

There are two instances where transfers from escrow funds are shown as credits against the principal balance on the schedule of defendants’ evidence as prepared by Shaw. Defendants contend that on the schedule prepared to show plaintiff’s position, they have not been given proper credit for these items. The first instance shown is a withdrawal on June 29, 1965, of the sum of $1,460.42 which defendants seek to show was not applied by Century to payment on the mortgage loan under consideration, but was transferred to a suspense account. No explanation has been attempted in the evidence to elicit the meaning of the suspense account. Defendants sought to establish proof of such a transfer by production of a typewritten schedule styled “payment analysis July 1964 through December 1966” which contains a purported listing of escrow balances and amounts paid out in addition to balances on principal and interest. This instrument reflects a “paid out” item of $1,460.42 on June 29, 1965, with the word “suspense” appearing in explanation of the entry.

Dr. Gamble testified he was furnished this document by Century pursuant to his request for a statement of a balance owed. Although he did not specify on what date he received the document, it must be presumed to have been shortly after December 31, 1966, as that is the end of the period covered by the. schedule. Apparently Dr. Gamble understood the purpose of the entry at the time as there is no evidence to show that he made any issue of the entry with Century after receipt of the schedule showing this withdrawal with no corresponding principal reduction to accord with it. The record reflects that it was not until more than four years later, after the note was in the possession of plaintiff, that he raised any question in regard to being entitled to a credit on the mortgage balance in this amount.

The document relied on by defendants is not signed by Century, neither does its name appear typed or printed thereon, nor does it contain any identification as to loan number. The record shows the defendants had at least twenty-three mortgage loans with Century at this approximate time.

Under these circumstances, we do not find defendants have offered sufficient proof that the principal balance should be reduced by the sum of $1,460.42.

The other instance complained of by defendants concerning a discrepancy relating to an escrow transfer, was on September 1, 1966, when a withdrawal of $1,097.20 was made from escrow and applied on the principal and interest of the note. Defendants contend this full amount should have been credited to reduction of principal only.

In accord with our conclusion that defendants failed to prove two of the monthly installment payment drafts were paid properly when due, there is a strong presumption the transfer from escrow for September 1, 1966, was made to bring current the monthly installment accruals on interest and principal.

The remaining area of dispute concerns whether defendants have proven entitlement to credits for amounts claimed to have been received by the mortgagee re-suiting from loans on insurance policies or-ginally assigned as additional security in connection with the subject mortgage loan.

Defendant introduced several copies of loan applications to support his allegations. There are notations written in longhand on copies of the applications for loans that the proceeds should be credited to loan number 1863, which is the designation assigned the subject loan by Century.

The officer of plaintiff bank testified these amounts were not received by it nor were they shown as having been applied on this loan by Century on the schedule of payments transmitted at the time the loan was assigned to plaintiff.

The copies of the applications of course do not necessarily prove the loans were consummated. It is also shown in the record that defendants had some twenty-three other loans with Century at the time, some of which were in default. The insurance policies had been released as additional security connected with this loan at the time of the amendment to the note in December 1964, and were subsequently assigned to Century to secure other loans due it by defendants.

The evidence preponderates against any conclusion that if any policy loans were made by defendants as alleged that credit for such amounts should have been applied on the principal of the subject note. Defendants have failed to sustain their burden of proof in this regard.

We find no discernible error in the calculation of the balance owed as reflected in the judgment rendered after crediting the sum received for the properties sold during the course of this litigation, and for the reasons given the judgment is affirmed.

Costs of this appeal are assessed to appellant.


author: DENNIS, Judge.

text:
    Rev. Louis M. COPPAGE, Plaintiff-Appellant, v. Dr. D. E. GAMBLE et al., Defendants-Appellees.
    No. 12702.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writ Refused Feb. 11, 1976.
    See 325 So.2d 819.

      Pittman & Matheny, Hammond, for appellant.
    Joseph R. Bethard, Shreveport, for Dr. D. E. Gamble, appellee.
    Mayer & Smith by Alex F. Smith, Jr., Shreveport, for appellees, Fairfield Corp. d/b/a Fairfield Hospital & St. Paul Fire & Marine Ins. Co.
    Walter J. Horrell, Baton Rouge, for La. Health, Social & Rehabilitation Services Adm., appellee.
    Adams & Reese, New Orleans, and Cook, Clark, Egan, Yancey & King by Sidney E. Cook, Shreveport, for La. State Bd. of Medical Examiners, appellee.

      Before BOLIN, HALL and DENNIS, JJ.
   DENNIS, Judge.

Following an operation which allegedly resulted in the deformity of his left foot, plaintiff instituted this action in tort for the recovery of damages against his podiatrist, the hospital in which the surgery was performed, and their insurer. Plaintiff contended that he did not consent to part of the surgery undertaken by the podiatrist; that the entire operation was unnecessary; that the surgery was performed negligently; and that the hospital was negligent in allowing the podiatrist to perform the operation on its premises. The trial judge found that the plaintiff had failed to prove any of these contentions by a preponderance of the evidence. Plaintiff appealed from an adverse judgment rejecting all of his demands. We find no error in the decision below and affirm for the reasons hereinafter stated.

Rev. Louis Coppage, the plaintiff, suffered from congenital flat-feet. Before the events giving rise to this suit he had seen several podiatrists who had fitted him with arch supports, and had removed calluses which repeatedly formed on his feet. In January of 1971 he placed himself under the care of one of the defendants, Dr. D. E. Gamble, a Shreveport podiatrist, who at first continued the same type of conservative treatment. On November 15, 1971 Rev. Coppage visited Dr. Gamble’s office complaining of acute pain in his left foot. After an ■ examination which included x-rays, Dr. Gamble recommended surgery as a means of alleviating the more serious condition which had developed.

Rev. Coppage entered the Fairfield Hospital in Shreveport on November 22, 1971 where surgery was performed on him the following day. Dr. Gamble failed to obtain from Rev. Coppage a written authorization for the operation. A local anesthetic was used in the area of the surgery, and the patient was given an oral sedative which left him conscious but groggy during the operation. Dr. Gamble made an incision in the bottom of his left foot and removed a callus. Using the same opening he also removed the head of the fourth metatarsal bone, shaved down the fifth metatarsal head, and removed some tissue he suspected of being a tumor. Rev. Cop-page convalesced uneventfully and was given post-operative treatment by Dr. Gamble for one or two months after his discharge from the hospital on November 26, 1971.

The foregoing facts are undisputed, but plaintiff contends he did not consent to the removal of any part of the metatarsal bone itself and that he intended to submit merely to the removal of a spur from one of his metatarsals. He testified that he did not realize the true nature of the surgery which had been performed until Dr. Gamble showed him some x-rays of his foot during his last visit to the podiatrist's office. Rev. Coppage admitted, however, that he had not complained to Dr. Gamble about the alleged unauthorized surgery until filing this lawsuit on November 22, 1972.

The universally recognized and accepted general rule is that the consent of a patient is a prerequisite to a surgical operation, and the surgeon who performs an operation without his patient’s consent, express or implied, commits a battery subjecting himself to liability in damages. This general rule, which is subject to exceptions not here pertinent, extends to the performance of operations different in nature from that for which a consent was given, and to operations involving risks and results not contemplated. Rogers v. Lumbermens Mutual Casualty Company, 119 So.2d 649 (La.App., 2d Cir. 1960). Express consent is not sacramental, however, and under proper circumstances may be implied or presumed. Carroll v. Chapman, 139 So.2d 61 (La.App., 2d Cir. 1962).

Dr. Gamble testified that on November 15, 1971 in his office he fully explained the proposed operation to Rev. Coppage. In support of his testimony the podiatrist introduced rough drawings depicting the removal of the head of a metatarsal bone which he said were sketched during the office conference to facilitate the patient’s understanding of the contemplated surgery. Dr. Gamble said he thought he had explained the operation to him again at the hospital just before the surgery. Although he was not certain of this at the trial, the hospital progress notes did contain a statement by the podiatrist that the operation was explained to the patient at the hospital. Dr. Gamble testified that Rev. Cop-page consented to the operation, voluntarily entered the hospital and submitted to the surgery.

Despite Rev. Coppage’s testimony that he was shown no drawings and was told only a bone spur would be removed, the trial judge found that he had consented to the entire operation and that the podiatrist had not gone beyond the bounds of the consent given. The trial court opinion, in pertinent part, provides:

“There is no doubt or dispute but that plaintiff consented to an operation on his left foot which was to be performed in the hospital and which required plaintiff to spend a night in the hospital before the operation. * * * Plaintiff testified that he was never told that the operation would require the removal of a portion of the bones of his foot. On the other hand, Dr. Gamble testified just as clearly that the nature of the operation was explained to plaintiff in detail and in the process he drew pictures of what he intended to do on plaintiff’s x-ray envelope. * * * Absence of consent to the operation has not been established. He further testified he had demonstrated the enlarged metatarsal head by palpation and saw the painful callous on the bottom of plaintiff’s foot under the enlarged metatarsal head.”

From our review of the record we conclude that the trial judge committed no manifest error in finding that Rev. Cop-page either orally expressed his consent to the entire operation or impliedly authorized it by his actions.

Nevertheless, the plaintiff argues, even if he consented to the operation, the trial court’s rejection of his causes of action predicated on the alleged malpractice of the podiatrist and alleged negligence of the hospital was erroneous in many respects. He assigns as errors the trial court’s failure to find that Dr. Gamble was not qualified to perform the surgery; that the surgery was unnecessary; that the surgery was negligently performed; that Fairfield Hospital was negligent in disregarding its own rule prohibiting the admission of patients without the authorization of a medical doctor; and that Fairfield Hospital was vicariously responsible for the acts of Dr. Gamble.

The Louisiana Revised Statutes, Title 37, Chapter 7, sets forth the definition and requirements of a license for the practice of podiatry:

“§ 611. Definitions
As used in this Chapter:
(3) ‘Podiatry’ means the diagnosis and the medical, surgical or physical treatment of ailments, excluding systemic diseases, of the human foot. The foot is defined as that portion of the body distal to or beneath, and not including, the ankle or tibiotalar joint. Podiatry includes the surgical treatment of ailments of the foot as herein defined except osteoto-mies, arthrodesis, arthrotomies, or tendón transfers proximal to and including the tarso metatarsal joints. Surgical treatment of the foot as herein defined involving use of general or spinal anesthesia is prohibited unless such treatment is performed in a hospital accredited by the Joint Commission on Accreditation in the physical presence of a physician participant, other than an anesthesiologist, whose name shall be recorded on the operative record and who is licensed to practice medicine by the Louisiana State Board of Medical Examiners.
“Podiatry does not include the administration of general or spinal anesthetics but does include the use of local anesthetics.”
“§ 612. License required, examining board
No one shall practice the branch of medicine known as podiatry nor adver-tís or hold out as a podiatrist unless duly licensed to do so by the board after examination conducted by the board or a committee thereof.”
* * * * * *

It is not disputed that Dr. Gamble was duly licensed to practice podiatry. Furthermore the surgical treatment administered by him did not involve the use of general or spinal anesthetics or extend beyond the foot as defined by the statute. Therefore, we find no merit whatsoever in the contention that Dr. Gamble was lacking in qualifications to perform the operation.

The law is well settled that a physician or surgeon owes a duty to his patient to possess and exercise the degree of skill ordinarily possessed and employed under similar circumstances by members of his profession in good standing in the same community or locality and to use reasonable care and diligence along with his best judgment in the application of his skill to the case before him. Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953); Uter v. Bone and Joint Clinic, 249 La. 851, 192 So.2d 100 (1966); Delaune v. Davis, 316 So.2d 7 (La.App., 1st Cir. 1975).

At the time of the trial Dr. Gamble had been practicing podiatric medicine in the city of Shreveport for approximately 22 years. He described for the court his basic education in podiatry, the positions he had held in professional organizations and his regular participation in post graduate courses and seminars in his field. The record is barren of any evidence that would indicate a failure by Dr. Gamble to attain that degree of competence ordinarily possessed by the members of his profession in good standing in his community.

Dr. Gamble testified that he found in his November 15, 1971 examination that Rev. Coppage had a deep neucleated callus under the fourth metatarsal, which in his opinion, based on the symptoms and his palpation of the patient’s left foot, was produced by a spurring or enlargement of the metatarsal head. In his judgment this was a progressive condition caused by continual irritation of the metatarsal head by hard floor surfaces, and he recommended removal of the metatarsal head as the only means of attacking the source of the irritation and affording the patient a measure of permanent relief. He decided to enter the foot for this procedure from its bottom since it would be necessary to make an incision in that area to excise the deep neu-cleated callus. He admitted that the growth on the metatarsal head was not visible in x-rays taken before the surgery, but he stated enlargements such as these did not always show up on x-rays. Therefore, he considered the x-rays as an aid and not a controlling factor in making his diagnosis. Dr. Gamble then explained in detail all of the procedures he followed in completing the surgical treatment of Rev. Cop-page. He described the operation as a common one for podiatrists, and stated that it was not unusual for him to remove 75 metatarsal heads a year in his practice.

The expert testimony, elicited from two orthopedists called by the plaintiff and one podiatrist called by Dr. Gamble, did not point out any instance in which Dr. Gamble failed to exercise the degree of skill and care ordinarily exercised by members of his profession in good standing in his community, or any instance in which he failed to use reasonable care and diligence along with his best judgment in the application of his skill and learning to the case. In fact, the doctors and the podiatrist, when asked to assume the presence of the preoperative symptoms and conditions reported by Dr. Gamble, gave testimony which fully confirmed his diagnosis, election to employ surgical treatment and operative technique.

No probative evidence was advanced by the plaintiff to question the findings upon which Dr. Gamble based his recommendation that the metatarsal head be removed. Rev. Coppage testified that the acute pain in his left foot subsided sometime before his admission to the hospital and that he asked the doctor to postpone the operation. However, his testimony was incongruous with his own actions in voluntarily submitting to hospitalization and surgery, as well as the medical records which contained no mention of such a remission. Furthermore, the congenital, progressive nature 'of his foot disorder would make it unlikely that the surgery was no longer necessary, even if Rev. Coppage had reported a subsidence of pain to his podiatrist.

Plaintiff charges the podiatrist and the hospital with a multitude of additional imperfections in the handling of his case. We find no merit in these contentions because in each instance Rev. Coppage failed to establish that the alleged breach of a legal duty toward him by either the podiatrist or the hospital had caused the injury of which he complains.

For these reasons we conclude the trial court was correct in finding that plaintiff failed to prove that Dr. Gamble committed malpractice in either recommending or performing the surgical treatment or to establish any negligence on the part of Fairfield Hospital. Accordingly, the judgment below is affirmed at the cost of the appellant.

Affirmed.


author: HALL, Judge.

text:
    Robert L. CAMPBELL, Plaintiff-Appellee, v. The TRAVELERS INSURANCE COMPANY and H. A. Lott, Inc., Defendants-Appellants.
    No. 12757.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    Blanchard, Walker, O’Quin & Roberts, by William Timothy Allen, III, Shreveport, for defendants-appellants.

      Booth, Lockard, Jack, Pleasant & Les-age, by James E. Bolin Jr., Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and HEARD, JJ-
   HALL, Judge.

Plaintiff, Robert L. Campbell, sued defendants, H. A. Lott, Inc., and the Travelers Insurance Company, for workmen’s compensation and medical benefits due as a result of a back injury he allegedly sustained while in the employ of Lott. The trial court, without assigning written or oral reasons, rendered judgment in favor of Campbell against Lott and Travelers in solido, awarding $49.00 per week for total and permanent disability up to 500 weeks and $495.00 for medical bills and other expenses. Defendants appeal.

Defendants contend on appeal that plaintiff’s uncorroborated testimony is insufficient to establish the occurence of an on-the-job accident resulting in injury to his back. They also contend that no causal connection has been established to a legal certainty between plaintiff’s injury and a work-related accident.

Plaintiff is a 59-year-old carpenter. In addition to carpentry, he has worked in shipyards and has done some work with cattle and timber. On Monday, August 21, 1972, he went to work as a carpenter for defendant Lott on the Louisiana State University Medical School project in Shreveport. He worked all of the 21st and at least most of the 22nd. On the 21st, he injured his right wrist on the job. This injury required bandaging and prevented him from using his right hand as effectively as he otherwise would. The' existence of this injury is confirmed by plaintiff’s wife and co-workers. The wrist continued to hurt plaintiff and he had it bandaged again before work on his second day on the job.

On the 22nd, plaintiff was working with “forms” which were used in the construction of concrete beams. The forms were of different shapes and sizes, some being as long as eight feet and weighing up to 200 pounds. Two and often three men were necessary to move the forms about. These forms had to be moved from level to level of the project as well as from place to place on the ground. He was working with three other men: David Todd, Henry Ebarb and Harold Glass.

Plaintiff testified that at about 3:00 in the afternoon on the 22nd, while lifting and carrying one of these forms, he dropped it. The form hit him on the leg and he felt a jerk or kink in his back. The pain came rather quickly and plaintiff testified he remarked to another worker that “one almost got him”. He just stood there for a minute or so, then finished moving that form and paused again before continuing work. He testified his leg was bruised but he did not think it amounted to much.

Plaintiff continued to work until shortly before 4:00 without any further complaint or mention to anyone of his back. His testimony was that it continued to hurt somewhat but that he still did not feel that it was a serious injury. His foreman told him shortly before quitting time that he was no longer needed and gave him his final check. Plaintiff still made no mention of his injury.

Plaintiff lives at Center, Texas. After he was dismissed, he drove home to Center. The trip, according to plaintiff, took about one hour and 45 minutes. He said his back hurt, the pain becoming progressively worse, all the way home. When he got home, the testimony of both him and his wife is to the effect that he lay down on the couch immediately and was in constant pain throughout the evening, retiring early. The pain prevented his resting throughout the night. The next morning, August 23, 1972, he reported his injury to Lott’s office and went to see Dr. R. D. Hightower, an orthopedic surgeon, to whom he related the occurrence of the accident the previous day.

Defendants’ first contention is that plaintiff has failed to prove a work-related accident. They argue that plaintiff’s testimony alone is not sufficient to prove the occurrence of such an accident, citing Blair v. Procon, Inc., 188 So.2d 676 (La.App. 2d Cir. 1966) and many other cases. Blair and the other cases make it clear that when the only proof of a work-related accident is the plaintiff-employee’s own testimony, that testimony must be corroborated by the surrounding facts and circumstances. Defendants point to factors they suggest are uncorroborative of and contradictory to plaintiff’s allegations. First they argue plaintiff failed to complain at the job site and delayed in making his report of his accident. They also point to the testimony of the employees who were working with Campbell at the time of the alleged accident to the effect that they did not remember any accident or complaint of a back injury by plaintiff. These employees also suggest that the forms being lifted that day weighed considerably less than the weight suggested by plaintiff.

Defendants then argue that plaintiff has failed to establish the causal connection between the alleged accident and the injury. They argue that Dr. Hightower did not testify at trial and Dr. Don Burt, who treated plaintiff after Dr. Hightower’s death and did testify, could not connect the injury to the job-related accident.

Plaintiff has a long history of construction work, with only one prior compensation claim relating to a lung disease. His failure to make special mention of the accident during the day on which it happened is understandable since it did not seem serious at the time. It should also be noted that it was only a short time between the time he was hurt and the time he left the job. It is not surprising nor contradictory with plaintiff’s injury that he did not report it until the next morning. The doctor’s testimony is to the effect it is common for an injury of this type sustained by plaintiff to cause little pain at the time it happens, with the pain becoming progressively worse after a few hours or even days.

It must also be noted that plaintiff had only been on this job for a little over a day when he was hurt. Not only would this be further reason for his failure to complain, but also for his unfamiliarity with his co-workers. Campbell could not recall their names or faces without help. They were likewise unfamiliar with Campbell. Although Todd, Ebarb and the foreman, Free, testified they remembered plaintiff, but not the accident, it is evident their memories were less than precise. In fact, Ebarb did not remember plaintiff having the wrist injury which Dr. High-tower described as infected and very sore on August 23, and which had been bandaged at the job site the day before. Their mutual unfamiliarity negates the importance of what each noticed or failed to notice about the other. It is noteworthy that Ebarb remembered someone slipping with a form that day, but did not know who it was, while plaintiff thought only he and Harold Glass were present when he was injured. There is no reason to expect that these workers would remember what seemed to be a relatively minor incident involving an unfamiliar co-worker so long ago. This uncertainty is to be expected in view of the testimony that men frequently slipped on the job site while carrying the large and cumbersome forms. Recovery of compensation benefits has been allowed in numerous cases where workmen were uncertain about times and specifics of accidents and failed to note and report serious injuries. See, for example, Holland v. Maryland Casualty Co., 306 So.2d 800 (La.App.2d 1975), and Augustine v. Avoyelles Parish School Board, 241 So.2d 807 (La.App. 3d Cir. 1970).

Plaintiff’s testimony is corroborated by his wife who • observed his obvious pain and discomfort the night of the accident and who agreed with him that he had never had hack trouble before August 22, 1972, but since that day has suffered greatly with his back. Prior to this, he not only held down jobs as a carpenter but he also took care of some cattle and made necessary repairs around his farm. Mrs. Campbell has taken care of the cattle since the accident and plaintiff’s handyman activity has greatly declined. She also testified that he has constantly been in pain since the accident.

Dr. Hightower’s reports and notes are consistent with plaintiff’s allegations and reflect the fact that plaintiff had an acute lumbosacral sprain on the day after the accident, coupled with degenerative disc disease. During the time plaintiff was observed and treated by Dr. Hightower he was totally disabled as far as carpentry work is concerned. Dr. Burt confirmed plaintiff’s disability after he took over his care and treatment. Assuming the facts related by plaintiff, Dr. Burt was of the opinion the accident precipitated or aggravated the disabling condition. Dr. Burt also testified that the acuteness evidenced by Dr. Hightower’s reports was indicative of trauma near the time of his examination. The medical evidence in plaintiff’s favor is uncontradicted.

The trial judge viewed the witnesses and determined plaintiff was injured on Lott’s job site August 22, 1972. Surrounding circumstances corroborate the occurrence of the accident and the relationship between the accident and plaintiff’s disability. There is no manifest error in the district court’s conclusion that plaintiff, with no history of back trouble prior to August 22, 1972, and continuous disability after that date, was injured at defendant’s job site that day.

For the reasons assigned, the decision of the trial court is affirmed at the cost of defendants-appellants.

Affirmed.


text:
    TROPICANA POOLS SOUTH, INC. v. Harold D. CHAMBERLAIN.
    No. 12645.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.

      James B. Wells, Bossier City, for plaintiff-appellant.
    Naff, Kennedy, Goodman, Stephens, Donovan & Parnell, by Robert J. Donovan, Jr., Shreveport, for defendant-appellee.
    Before PRICE, HALL, MARVIN, HEARD, and GLADNEY, JJ.
   ON REHEARING

MARVIN, Judge.

After reconsideration of the entire record and for the reasons stated, we reverse our original determination that the peremptory exception of no right of action was properly sustained by the court below.

Tropicana Pools South, Inc. brought suit on the contract against the defendant. The contract was signed by the defendant and by William Russell, who signed without indicating that he was an agent or employee of anyone. The defendant filed an exception of no cause of action and no right of action contending that Tropicana Pools South, Inc. was not the “proper party plaintiff” and that it was not indicated that Tropicana Pools South, Inc. had “any rights or obligations under the said contract.”

The two exceptions raised by defendant are peremptory exceptions. Article 927, La.C.C.P. Article 64S, La.C.C.P., states that the failure to join a necessary party may be pleaded only in the dilatory exception, while the failure to join an indispensable party may be pleaded in the peremptory exception. The peremptory exception of no interest in the plaintiff to institute the suit, which apparently the defendant thought he was filing under Article 927(5), is to be distinguished from the exception of nonjoinder of an indispensable party under Article 927(3), and the nonjoinder of a necessary party under Article 926(8). The trial court apparently confused the types of parties and exceptions by which their nonjoinder might be raised as well as the exception of no right of action or no interest in the plaintiff to institute the suit under Article 927(5). The trial court treated the exception apparently as one of nonjoinder of William Russell as a “necessary party,” and ordered his joinder.

The exact relationship between Russell and the plaintiff corporation is not shown absolutely • by the record. It is clear, however, from the record, that the plaintiff corporation is contending that it was the principal, either disclosed or undisclosed, of Russell, and that Russell was acting as its agent when he signed the contract. The defendant-exceptor admitted on the trial of the exception that he thought he was dealing with Russell as a “representative” of Tropicana Pools in negotiating the contract, and that after the contract was negotiated and work was being formed, he did have contact with one Ty Evans whom he also believed was a representative of Tropicana Pools. With these admissions, the defendant-exceptor failed to meet the burden imposed upon him as an exceptor of establishing that Tropicana Pools South, Inc., was without an interest or right of action in the contract sued on. See Invest, Incorporated v. State, 247 So.2d 175 (La.App. 1st Cir. 1971), as to burdens imposed on exceptors in no right of action exceptions. In this respect, the trial court erred in sustaining the exception of no right of action and in treating it as an exception of nonjoinder of a necessary party.

The trial court was faced with a situation where the party signatory to the contract sued on (William Russell), was not before the court and an adjudication was sought by a plaintiff other than Russell. The adjudication undoubtedly would affect Russell’s rights under the contract. Since Russell’s was the only signature besides the defendant’s, Russell should be required to assert or disclaim his rights in and to the contract.

Under Article 645, La.C.C.P., the trial court (or this court) can notice on its own motion the nonjoinder of an indispensable party. This authority, however, is not indicated in the case of the nonjoin-der of a necessary party, which the article says may be pleaded “only in the dilatory exception.”

Article 644 also distinguishes the necessary party from the indispensable party. An indispensable party who should join as a party plaintiff, may be joined as a defendant and required to assert his rights or be thereafter precluded from asserting them. A necessary party “subject to the jurisdiction of the court” who should join as a party plaintiff may also be joined as a defendant. Article 642 requires.the joinder of a necessary party only if he is subject to the jurisdiction and timely objection is made to nonjoinder.

The comments to the procedural articles mentioned further clarify their meaning:

“(b) Since the action may proceed without a necessary party who is not subject to the jurisdiction of the court, and his joinder cannot be required, under Art. 642, supra, no problem is presented by the rare case where a nonresident who is a necessary party plaintiff refuses or fails to sue.”
“(c) The equally rare case where a nonresident who is an indispensable party plaintiff refuses or Tails to sue presents much more of a problem. Some doubt exists as to whether such a nonresident may be joined as a defendant. The majority of the Council, however, was of the opinion that in such a case he may be joined, and served through an attorney at law appointed by the court to represent him. The basis of this opinion is that the incorporeal right which should be asserted in the action is a res; and since the alleged obligor is subject to the jurisdiction of the Louisiana court, the res has a situs in this state, and a Louisiana court would have jurisdiction to compel the nonresident to assert his right in the pending action. Cf. Herbert v. American Soc. of Composers, etc., 210 La. 240, 26 So.2d 732 (1946). A contrary view might make it impossible for the plaintiff in the pending suit to enforce his right anywhere.” Comments (b) and (c) Article 644.

The pleadings and the rulings of the court below, after its initial ruling on the exception requiring the joinder of Russell as a necessary party, establish that Russell is a nonresident of Louisiana. The compulsory joinder of a nonresident as a necessary party plaintiff cannot be required under the procedural articles mentioned. The trial court erred in this respect. Article 645 allows this court to notice on its own motion the nonjoinder of an indispensable party. The jurisprudence and comments cited under Article 644, quoted above, authorize the nonresident indispensable party to be served through an attorney at law appointed to represent him so that an adjudication can be made rather than thwarted. In effect, the res before the court (the subject matter of the law suit, in this case the contract itself) is certainly within the jurisdiction of the court, similar to an in rem attachment, and through the appointment of the attorney ad hoc, the nonresident party is afforded the constitutional protection required by law and due process.

Exercising then the authority granted by Article 645, we notice on our own motion that William Russell is an indispensable party and require his joinder in accordance with law in order that plaintiff might thereafter proceed with evidence in support of its demands on the contract against the defendant. The defendant of course, shall be allowed to properly raise in limine or other defenses which may be available to him. The ultimate result shall be determined by the evidence under the appropriate law of contract and of agency.

In Childers v. Police Jury, 9 La.App. 490, 121 So. 248 (2nd Cir. 1928), we held that an undisclosed principal is allowed to maintain a direct action against a party contracting with the agent of the undisclosed principal. There, the agent was within the jurisdiction of the court and was made a party to the action by the undisclosed principal. Insofar as the instant defendant is concerned, the principle proclaimed there applies here. In Childers, we said:

“. . . it is thus apparent that the police jury [defendant] could not be prejudiced in any manner by permitting the undisclosed principal to sue for the amount which may be due under the contract made by the agent for his benefit, and we are of the opinion that the exception of no right of action should have been overruled.” 121 So. 249.

Our original opinion and the judgment of the trial court are vacated and the case is remanded for further proceedings consistent- with this opinion on rehearing. Cost of this appeal is to be borne by appel-lee.

Reversed and remanded.


author: BY THE COURT:

text:
    In re PROPOSED AMENDMENT TO ARTICLE IV, SECTION 22, RULES OF the SUPREME COURT RELATING TO the ADMISSION TO THE BAR.
    No. 43040.
    Supreme Court of Florida.
    Dec. 18, 1975.
   BY THE COURT:

In July 1973, the Court authorized a special training program for a limited class of former Cuban lawyers as a substitute for graduation from ABA approved law schools. The purpose of the program was to provide an opportunity for these individuals to take the Florida bar examination and earn the right to practice law in Florida.

The first graduates of the program took the July 1975 bar examination, but only a small number of those examinees passed. Pursuant to authority conferred by the Court in a letter dated November 12, 1975, the Dean of the University of Florida College of Law reviewed the results of the Cuban lawyers’ performance on that examination for the purpose of recommending to the Court methods and procedures by which those who have failed the examination might receive additional training in the areas of deficiency. During Dean Ju-lin’s evaluation, anonymity was maintained as to the performance of individual examinees. This Order results from Dean Ju-lin’s oral report to the Court.

Dean Julin found that examinees who did not pass the examination fell into three broad categories. The grades of one group fell in the top one-third of all examinees who failed the July examination, and Dean Julin believes that substantially all these individuals could pass another examination with minimal additional training. The grades of a second, somewhat larger group fell in the middle one-third of all failing examinees. Dean Julin believes that many in this group could pass another examination with additional, directed training. The grades of a third group, slightly larger than the second, fell in the lowest one-third of all failing examinees, and it appears to Dean Julin doubtful that many of this group will ever pass a Florida bar examination. Dean Julin believes that individualized training over a reasonably short period of time would result in the admission to the Bar of many individuals from the first and second groups, thereby producing a far more acceptable overall proportion of admitted program graduates. Dean Julin’s findings and proposals are corroborated to some extent by the results of the October '1975 bar examination.

The Dean notes that no one deficiency, such as lack of English fluency, absence of legal knowledge, or inadequacy of exam-taking skills, can be isolated as having produced failures for all or most of the failing Cuban lawyers. He believes, however, that factors can be isolated on an individual basis by comparing each individual’s performance (i) on the multiple choice questions in Part II of the examination, (ii) on the essay questions in Part I of the examination, (iii) on the English proficiency test taken at the outset of the Cuban lawyer training program, and (iv) on the tests given during the training course by law school personnel. Because of the Court’s policy in favor of anonymity, the first two sources of information are not now available to the Dean or to others for suitable counseling. Were this information available, Dean Julin believes that individual counseling could be given and specialized short-term retraining courses developed to meet the particular needs of each former Cuban lawyer.

Dean Julin’s report cautions that counseling for those in the bottom one-third of all failing examinees, and perhaps for others in the middle one-third, might well include a recommendation against further training in light of the small probability of ultimate success. Dean Julin advises us that the College of Law at the University of Florida can begin individual counseling and can develop retraining programs as soon as the information to be evaluated becomes available.

Finally, Dean Julin notes that it has been the policy of the Florida Board of Bar Examiners to advise unsuccessful bar examinees whether their scores placed within the top ranked third, the middle ranked third or the bottom ranked third of the scores of those who failed the examination. Responses to requests for this information have been given to the examinees only, however. He suggests that a simple broadening of this Board policy can be made to serve the Court’s original desire to cause the admission of additional, qualified former Cuban lawyers to the practice of law in Florida.

We gratefully receive Dean Julin’s report, and we here express our appreciation for his efforts. The proposal he has outlined has considerable merit.

We appreciate the offer of the University of Florida College of Law to provide counseling and to establish one or more retraining courses for graduates of the Cuban lawyer program who failed to pass the July 1975 bar examination. To facilitate the retraining of Cuban lawyers who wish to avail themselves of the benefits of this additional program, it is ordered:

1. The Florida Board of Bar Examiners is authorized to release to Dean Julin, or to his authorized appointee, the ranking (as being within the top, middle or bottom third of all individuals who failed to pass the July 1975 bar examination) of any graduate of the Cuban lawyer program who complies with paragraph 2 below. The information furnished by the Board shall separately identify the individual’s ranking in Part I and in Part II on the July examination.

2. The information described in paragraph 1 shall be released by the Board only if an applicant files with the Board, not later than January 15, 1976, (i) a sworn writing which expressly waives confidentiality of the applicant’s July 1975 examination results and authorizes their review for counseling purposes at the University of Florida College of Law, and (ii) an affidavit containing the information described in paragraph 11(1) (B) of the Court’s order of December 4, 1975, a copy of which is attached to this order.

3. The Board need not submit the authorized information to the Dean on an individual basis but may, in its discretion, withhold transmittal of all information until all waivers and affidavits are received or the time for their filing has expired.

4. The Board is authorized to defer the scheduled taking of the bar examination by any graduate of the program who desires counseling and training prior to the February 1976 bar examination and who has already applied to take that examination. Applicants requesting deferral need only file a request with his or her waiver and affidavit. Any such graduate shall be admitted to any later bar examination by filing a request for admission not less than ten days before the examination is administered.

5. No certificate, degree or other evidence of this retraining need be provided by the University of Florida College of Law as a requisite for admission to a bar examination.

6. Nothing in this order shall require any graduate of the Cuban lawyer program to waive the confidentiality of his examination or to submit to counseling or retraining. Irrespective of any counseling or retraining offered, any graduate of the program shall have the right to take future Florida bar examinations to the same extent and under the same conditions as other bar applicants who seek re-examination; provided that each graduate of the Cuban lawyer program shall submit with his or her re-examination request the affidavit required by the attached portion of the Court’s order of December 4,1975.

7. In the event the University of Florida or the University of Miami College of Law desire to establish similar counseling and retraining programs for graduates of the Cuban lawyer program who have failed to pass the October 1975 bar examination or who fail to pass for the first time any subsequent bar examination, the Board of Bar Examiners is authorized to furnish rankings to the. respective deans for Cuban lawyer examinees, to the same extent and under the same circumstances as provided in this order; provided that the last day for waivers, affidavits and requests shall be 90 days from the Court’s certification of bar examination results.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND, SUND-BERG and HATCHETT, JJ., concur.

APPENDIX

IN RE: PETITION OF THE FLORIDA BOARD OF BAR EXAMINERS FOR AMENDMENT TO RULES No. 46763-B.

Dec. 4, 1975.

Case of Original Jurisdiction.

******

B. An affidavit duly executed by the applicant on a form supplied by the Board establishing his or her;

1. Graduation prior to December 31, 1960 from any of the following schools of law:

a. University of Habana (Havana)

b. Jose Marti University

c. St. Thomas of Villanova Law School

d. Ceriente University

2. Status as an attorney in good standing and in the active practice of law in the Republic of Cuba prior to December 31, 1960.

3.Absence of conviction or adjudication of guilt of a criminal offense in a court or tribunal of any state, territory, possession or protectorate of the United States, or of the United States, which constitutes a felony under the laws of the jurisdiction rendering such judgment.

C. Any variance from these requirements shall arise only through Order of the Supreme Court of Florida, a copy of which must be attached to the affidavit.


author: ENGLAND, Justice.

text:
    The CITIZENS OF the State of FLORIDA, Petitioners, v. William T. MAYO, Chairman, et al., Respondents.
    No. 47503.
    Supreme Court of Florida.
    Oct. 15, 1975.

      Woodie A. Liles, Public Counsel, Lake-land, and Donald W. Weidner, Associate Public Counsel, Tallahassee, for petitioners.
    William L. Weeks, Prentice P. Pruitt and Donald R. Alexander, Tallahassee, for the Fla. Public Service Commission, respondents.
    Robert P. Gaines and C. Roger Vinson of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for Gulf Power Co., intervenor.
   ENGLAND, Justice.

By motion, Gulf Power Company has requested that we dismiss a petition for cer-tiorari by which public counsel for the State of Florida seeks a review of interim rate increases granted Gulf Power by the Florida Public Service Commission. Gulf Power urges dismissal, among other reasons, for lack of jurisdiction because public counsel failed to file all essential parts of the record, as required by Fla. App.Rule 4.5(c)(1). Public counsel responds in kind, charging that Gulf Power has violated several appellate rules by failing to supplement the record in a timely fashion.

Gulf Power’s motion is denied.

This controversy had the following evolution so far as is relevant here:

7/2/74 Gulf Power filed with the Commission requests for interim and permanent rate increases.
7/23/74 The Commission suspended the proposed rate increases, pending public hearings.
12/9/74 Public counsel was authorized to intervene in the rate proceedings.
12/11-12/74 Limited public hearings were held on the interim rate request.
12/20/74 The Commission entered Order 6420, approving interim rate relief.
12/30/74 The Commission entered amendatory Order 6420A.
1/20/75 Public counsel filed with the Court a petition for certiorari to review the interim rate award.
2/12-15/75 Additional public hearings were held.
3/7/75 On motion of Gulf Power, the Court dismissed the petition “without prejudice to our consideration of the substantive questions of law on review of a final order of the Commission in this case.”
5/7/75 The Commission entered Order 6650, approving permanent rate increases, reapproving the interim rate increase, and dissolving the interim rate increase bond.
6/5-6/75 Public counsel filed with the Court its portions of the record and a petition for certiorari seeking review of the interim rate increase.
7/7/75 Having intervened in the appeal, Gulf Power filed cross-directions with the Commission’s clerk.
7/9/75 Gulf Power moved to dismiss the petition for certiorari, and filed additional directions with the Commission’s clerk.
7/11/75 Public counsel filed (i) a statement in opposition to the motion, (ii) a motion to strike Gulf Power’s additional directions or in the alternative a request for permission to file the entire transcript of hearings held on 12/11-12/74, and (iii) supplemental written directions to the Commission’s clerk.

It is apparent that the Commission’s Order of May 7, 1975 was the final order in Gulf Power’s rate request proceeding. Gulf Power does not suggest otherwise. It is also quite clear from our Order of March 7, 1975 that public counsel would be accorded his day in this Court on the substantive questions of law relative to the interim rate increase on review of the Commission’s final order. Gulf Power, in effect, seeks to deprive public counsel of any opportunity to have us review that rate increase.

By law, the Orders of the Commission in utility rate cases are only reviewable here. Gulf Power’s suggestion that we lack jurisdiction under our Rule is without merit. This is not a case like Holden v. City of Fort Lauderdale, 286 So.2d 218 (4th D.C.A.1973), where the record was wholly inadequate for appellate review. The portions of the record filed by public counsel are sufficient for our review of the issues appealed. Moreover, the petition for review here is not patently frivolous.

The delays which inevitably precede the finality of utility rate matters are such that the legislature recently enacted the “file and suspend” law to reduce regulatory lag at the administrative level. It ill-behooves litigants in these types of cases to engender delays at the judicial level. We look to counsel to control their clients in matters of this nature. Counsel’s responsibility to this Court demands a concern for the prompt adjudication of all legal causes, and this is especially true with respect to matters brought to this Court from the Public Service Commission. These matters necessarily affect a significant group of Floridians. Moreover, since counsel for the Commission and public counsel are compensated directly from the general revenue funds of the state, and counsel fees for the utilities have historically been treated as an expense of doing business chargeable to Floridian customers in setting rates, the legal costs of appellate review are borne by the citizens of Florida. Counsel in these cases have an obligation to conduct the affairs of their clients with some regard for the fiscal impact on those Floridians who pay their fees and salaries.

For the foregoing reasons, Gulf Power’s motion to dismiss the petition of public counsel is denied. Neither party has violated the appellate rules so flagrantly as to warrant penalties under Florida Appellate Rule 3.17.

So that a substantive review of the Commission’s orders may proceed expeditiously, it is ordered that:

(1) the requests of Gulf Power and public counsel for oral argument on Gulf Power’s motion to dismiss are denied, and

(2) public counsel’s Motion to Strike In-tervenor’s Directions to the Clerk of the Commission is denied, and its alternative motion to include in the record on appeal the entire record below, including the transcript of testimony from hearings held on December 11-12, 1974, is granted.

It is so ordered.

ROBERTS, BOYD and OVERTON, JJ., concur.

ADKINS, C. J., concurs to the conclusion.

      . The office of public counsel was created in 1974 to represent the general public of Florida before the Public Service Commission. Sections 350.061-0614, Fla.Stat. (Supp. 1974).

      . Interim rate increases for electric utility companies are authorized under a “file and suspend” procedure enacted by the 1974 Legislature. Section 366.06(4), Fla.Stat. (Supp. 1974).

      . Fla.Const., art. V, § 3(b) (3) ; Section 366. Supp.1974). 10, FlaStat. (1973) ; Section 120.68, Fla.Stat.