author: HOOD, Judge.

text:
    Succession of Marie Sydonia MAYEUX. Malcolm A. COCO, Sr., and Robert S. Coco, Executors, Plaintiffs-Appellees, v. Armando FUOCO, Defendant-Appellant.
    No. 5575.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writs Refused Feb. 11,1977.

      Mansour & Davis by Alfred Mansour, Alexandria, for defendant-appellant.
    Jerold Edward Knoll, Marksville, John Contois, Marksville, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

This action was instituted in the proceeding entitled “Succession of Marie Sydonia Mayeux.” The case has been consolidated for trial and appeal with another action filed in a separate proceeding entitled “Succession of Marie Anselmus Mayeux.” The decedent, Marie Sydonia Mayeux, will be referred to herein simply as “Sydonia.” The decedent, Marie Anselmus Mayeux, will be referred to as “Anselmus.”

Plaintiffs in the instant suit, Malcolm A. Coco, Sr., and Robert S. Coco, have sued in their capacities as co-executors of the Succession of Sydonia. They demand judgment against defendant, the Reverend Armando Fuoco, ordering defendant to make an accounting of his actions as agent for the decedent, and condemning him to pay the Succession of Sydonia the sum of $20,-506.28. The Succession of Anselmus is also named as a party defendant, and plaintiffs demand judgment alternatively against that succession for $20,506.28.

Defendant Fuoco filed several pleadings, one of which is an answer and a reconven-tional demand praying that the demands of plaintiffs be rejected, and that judgment be rendered in his favor, personally, and against the Succession of Sydonia, for the sum of $31,450.00. He also filed an answer and reconventional demand, in his capacity as Executor of the Succession of Anselmus, demanding judgment in favor of the Succession of Anselmus and against the Succession of Sydonia for $31,192.68.

Judgment was rendered by the trial court on February 10, 1976, (1) condemning defendant Fuoco to pay to the Succession of Sydonia the sum of $20,506.28; (2) rejecting the reconventional demands of Fuoco, personally; and, (3) rejecting the reconventional demands of Fuoco, in his capacity as Executor of the Succession of Anselmus. Defendant Fuoco has appealed from that judgment.

As already noted, this case was consolidated for trial and appeal with another suit filed in a separate,proceeding entitled “Succession of Marie Anselmus Mayeux.” That action was instituted by all of the collateral heirs of Anselmus against defendant Fuoco. In that suit plaintiffs demanded judgment decreeing a bequest made to defendant Fuoco in the will left by the testatrix, An-selmus, to be null and void, dismissing and discharging Fuoco as Executor of the Succession of Anselmus, and ordering the execution of the balance of the will left by that testatrix.

After trial, judgment was rendered by the trial court on February 10, 1976, in favor of plaintiffs (1) decreeing that the bequest made to defendant Fuoco in the will of Anselmus is null and void; (2) discharging defendant as Executor of the Succession of Anselmus; and, (3) ordering that the balance of the testatrix’s will be executed. Defendant Fuoco also appealed from that judgment.

After the above judgment was rendered, Malcolm A. Coco, Sr., and Robert S. Coco, were duly appointed and qualified as co-executors of the Succession of Anselmus, and thereafter, on February 24, 1976, in their capacity as co-executors, they instituted another action in the same succession proceeding for judgment ordering defendant Fuoco to make an accounting and to pay to the Succession of Anselmus a sum of money. In that action plaintiffs also prayed for a preliminary injunction prohibiting defendant from withdrawing, disposing of or transferring funds belonging to the estate of Anselmus. A hearing was held on a rule directing defendant Fuoco to show cause why a preliminary injunction should not be granted, and after that hearing was held judgment was rendered by the trial court on February 27, 1976, granting the injunc-tive relief prayed for by plaintiffs. Defendant Fuoco appealed from that judgment.

There are before us at this time, therefore, appeals from three judgments rendered by the trial court. One of these judgments was rendered on February 10, 1976, in the proceeding entitled “Succession of Marie Sydonia Mayeux,” and the other two judgments, dated February 10, and February 27, 1976, were rendered in the proceeding entitled “Succession of Marie Anselmus Mayeux.”

We are rendering a separate judgment today in the companion suit, resolving the issues presented by the appeals taken from both of the judgments rendered in that proceeding. See Succession of Marie Anselmus Mayeux, La.App., 339 So.2d 1247.

In this court defendant filed a peremptory exception of prescription to the claim of the Succession of Sydonia for a money judgment against him.

A number of important issues are presented. Included among them are the following: (l)Whether the bequest made to defendant Fuoco in the will left by Ansel-mus is prohibited and void under LSA-C.C. art. 1489; (2) whether defendant is indebted to the Succession of Sydonia for $20,-506.28; (3) whether the Succession of Sydo-nia is indebted to defendant or to the Succession of Anselmus for any amounts; (4) whether the trial judge abused his discretion in discharging defendant as Executor of the Succession of Anselmus; and (5) whether the claim of the Succession of Sy-donia against defendant for $20,506.28 has prescribed under LSA-C.C. art. 3536.

Sydonia and Anselmus were elderly, unmarried sisters who lived together for several years prior to their deaths in Mansura, Louisiana. Sydonia became bedridden in 1968. Anselmus was a registered nurse, and she moved from New Orleans to Man-sura at about that time to live with and to care for her sister. Sydonia died on September 19, 1974, when she was 88 years of age. Anselmus died about two months later, on November 18, 1974, at 90 years of age.

The home of the decedents was located near St. Paul’s Catholic Church, in Mansu-ra. Defendant Fuoco is an ordained Catholic Priest, and he has served as pastor of St. Paul’s Church since March 11, 1971. Sydo-nia and Anselmus were devout Catholics, and they were parishioners of Father Fuoco from the time he became pastor of the church in Mansura until the time of their deaths. Defendant’s residence was located near that of the decedents.

Because of their ages and infirmities, Sy-donia and Anselmus seldom left their home, and they relied largely on hired help and others to perform ordinary household duties. Shortly after defendant became pastor of the local church, be began to perform a number of chores for the decedents, such as running errands for them, purchasing groceries, providing transportation, and looking after their business matters. He handled substantially all of their financial affairs, including the receipt of monies paid to them, the cashing of checks payable to the decedents, the opening of bank accounts, the deposit and withdrawal of funds from those accounts, and the payment of bills. The sisters trusted him and became dependent on him.

On May 27, 1971, Sydonia executed a power of attorney appointing Fuoco as her agent, giving him full and general power to represent her in all matters. On June 15, 1971, Anselmus executed a similar power of attorney appointing Fuoco as her general agent. Acting in accordance with the terms of these powers of attorney, defendant exercised almost unlimited control over the finances of the two sisters. He opened numerous bank accounts, most of which were in his own name, and all of which were subject to withdrawal on his signature alone. He cashed cheeks for sums of money made payable to the decedents, some of which were for large amounts, and usually he determined how those funds were to be deposited or disbursed. Defendant continued to handle the funds and assets of both sisters from the time the above powers of attorney were executed until about September 6, 1974.

On the night of January 24,1974, defendant went to the home of the decedents, accompanied by two attorneys and a notary public, and at that time Sydonia and Ansel-mus each executed an “Act of Donation” donating to Fuoco all of the real property she owned. The act signed by Sydonia provided for the donation to Fuoco of the home-place where both sisters lived. The act signed by Anselmus donated to defendant eleven different tracts of land. Fuoco did not record either of those acts of donation until seven or eight months later.

At the time the above acts of donation were executed, on January 24, 1974, Sydo-nia and Anselmus each also executed a Last Will and Testament, in statutory form. The wills were almost identical, with each testatrix leaving her entire estate to her sister, appointing Fuoco as executor, and providing that if the testatrix was predeceased by her sister then Fuoco was to receive the entire estate. The pertinent part of the will executed by Anselmus reads:

“I leave and bequeath all of the property of every nature, kind and description, whereever situated, that I own when I die, to my sister, Marie Sidonie Mayeux.
“I appoint Father Armando Fuoco Executor with full seizin and without bond. If my sister, Marie Sidonie Mayeux, predeceases me, then, and in that event, I leave and bequeath all of the property of every nature, kind and description, wher-eever situated, that I own when I die, to Father Armando Fuoco.”

One of the issues presented in this case is whether the above bequest to Fuoco is void.

On July 4, 1974, Anselmus fell and broke her hip. She was hospitalized in St. Francis Cabrini Hospital in Alexandria on that day, and at the same time Sydonia was placed in a nursing home in Alexandria. Defendant contends that she was placed in the nursing home at her request, so that she could be near her sister. Plaintiffs contend that she was placed in the nursing home against her will.

On July 12, 1974, Fuoco instituted two interdiction proceedings in the district court, one seeking to have Sydonia interdicted, and the other to have Anselmus interdicted. In each proceeding he alleged that he feared that the defendant would dispose of her estate during the course of the proceedings unless a Provisional Curator was appointed. The court thereupon appointed Fuoco as the Provisional Curator in each case.

After trial of the interdiction proceedings against Sydonia, the trial judge found that Sydonia was capable of managing her own affairs, and he rendered judgment on September 6, 1974, dismissing Fuoco as Provisional Curator of the estate, dismissing the suit with prejudice and ordering Fuoco to deliver to Sydonia her personal effects, including the keys to her home in Mansura.

On the day that judgment was rendered, September 6, Sydonia executed another will, in statutory form, revoking all of her prior wills. Also, on September 6, 1974, defendant Fuoco recorded in the public records of Avoyelles Parish the two Acts of Donation which had been executed by the decedents on January 24, 1974.

On September 11, 1974, the trial judge issued an order removing Fuoco as Provisional Curator of Anselmus, ordering him to file an account of his administration within ten days, and appointing someone else as Provisional Curator of Anselmus. The court assigned as reasons for the removal of Fuoco that the recording of a donation inter vivos from Anselmus to Fuoco on September 6, 1974, constituted a violation of the latter’s trust, that Fuoco had signified his desire to resign and that he had not yet caused an inventory to be made of his ward’s property.

Two days later,, on September 13, Fuoco executed two documents, each entitled “Revocation of Donation,” in which he formally revoked his acceptance of the donations made to him by the decedents on January 24, 1974, and restored the ownership of the property described in those acts to each respective donor.

Sydonia died on September 19,1974. Her will, executed on September 6, 1974, was probated and plaintiffs were appointed as co-executors on November 22, 1974. The instant suit was filed on November 27,1974.

Anselmus died on November 18, 1974. Father Fuoco filed a petition on November 21 seeking to probate the will left by that decedent, dated January 24, 1974, and pursuant to his application he was appointed as executor of her estate. He continued to serve as such until he was removed as executor by judgment rendered on February 10, 1976.

Validity of Bequest to Defendant Fuoco

The principal issue presented in these consolidated cases is whether the bequest to defendant Fuoco in the will left by Ansel-mus is prohibited and void under the provisions of LSA-C.C. art. 1489. Plaintiffs contend that Fuoco is a minister of religious worship, that he professionally attended Anselmus during the sickness of which she died, that the donation was made during that sickness, and that under the cited article of the Civil Code the bequest made in his favor is null and void.

LSA-C.C. art. 1489 provides, in part and insofar as that article is pertinent here, that:

“Doctors of physic or surgeons, who have professionally attended a person during the sickness of which he dies, cannot receive any benefit from donations inter vivos or mortis causa made in their favor by the sick person during that sickness
* * * * * *
“The same rules are observed with regard to ministers of religious worship.” (Emphasis added)

Defendant contends that he did not professionally attend Anselmus, or minister to her professionally, at any time. He asserts that when she wanted to go to confession she had someone take her to another priest, and he maintains that he merely took care of her “physical” and not her “spiritual” needs.

The trial judge held that Father Fuoco “was a minister of religious worship at the time of the will and at the time of her death; he was attending to her as such before the will was made, at the time it was executed and until he was removed as her provisional curator.” He found that defendant “brought communion to them,” that he was the “attending pastor and minister” of Anselmus, and that “Father Fuoco was ministering to her and was fully aware of her sickness for a year or two prior to her death.” We agree with these findings of the trial court, and conclude that defendant Fuoco professionally attended Ansel-mus at the time she executed the above will.

Defendant contends next that the “sickness” of which Anselmus died did not develop until after her will was executed on January 24, 1974, and that Article 1489 of the Civil Code thus did not prohibit the donation made to him by that decedent, since it applies only to donations made “during that sickness.”

Dr. Richard Michel, a general practitioner, was the attending physician of Ansel-mus at the time of her death. He issued a “Certificate of Death” immediately after her demise certifying that the immediate cause of her death was “arteriosclerosis.” He also testified that arteriosclerosis was the immediate cause of the death of Ansel-mus, that he determined that she had that disorder when he began treating her in February, 1973, and that she was suffering from it at the time her will was executed on January 24, 1974.

Dr. Michel concedes that 95% of all people over sixty years of age have arteriosclerosis. He testified that “they usually die of an infarction, but there are a certain percent that die and especially the ones that hit 90, 95 and 100, their machinery just runs out; it wears out; and when these, when they get 90, 95 and 100, they die with arteriosclerosis.” He stated that at those ages “a lot of them will die just of arteriosclerosis when everything just closes up.” From his treatment and examination of An-selmus he found no indication of an infarction, heart failure, stroke, uremia or any other complication or specific cause of her death, other than arteriosclerosis. He testified that “she had just withered away and became semicomatose and just like when a candle runs out of wax, the fire just gradually goes away.” He is firm in his opinion that the sole immediate cause of her death was arteriosclerosis.

Defendant contends that “arteriosclerosis” was not the sickness of which Anselmus died, but that instead the immediate cause of her death was a broken hip and a heart attack sustained by her on July 4,1974. He argues' that arteriosclerosis is a chronic disease which begins in childhood and progresses into old age, and that it usually is not the primary cause of death. His position here is that Anselmus never recovered from the fractured hip and heart attack, which she suffered several months after the will was executed, and that the immediate cause of her death thus was the fracture and heart attack, and not arteriosclerosis.

Dr. Everist J. Trahan, a qualified pathologist called by defendant, never treated or examined Anselmus. He testified, however, that arteriosclerosis is a chronic disease process which begins sometimes in childhood and progresses slowly into old age, and that “in the majority, arteriosclerosis per se does not cause death, but the complications of the disease, that is the complete occlusion of the vessel, would produce the death.” He feels that a specific organ must fail in order to cause death, and he stated that he has never listed arteriosclerosis as the sole cause of death. In response to a hypothetical 'question in which he was required to assume that Anselmus suffered “a mild myocardial infarction” at the time she fractured her hip, he expressed the following opinion:

“I think the probability is very strong that she had a recurrance of a coronary artery disease, which we know have been present because of the prior heart attack. And, since most people who have had one heart attack ultimately die of another heart attack. I think the odds are strongly in favor of another heart attack.”

The evidence does not convince us that Anselmus sustained a heart attack, or a myocardial infarction, when she fractured her hip. If she did, we think it was of such a mild nature that it did not contribute in any way to her death about four months later.

The records of St. Francis Cabrini Hospital relating to Anselmus show that the notation “acute myocardial infarction” was made on her admission form when she was admitted for her fractured hip on July 4, 1974. The report of her treating physician made on the same day, however, makes no reference to a heart ailment of any kind, but on the contrary shows with reference to the patient’s heart, “Appears to be in regular rhythm. No definite murmurs are audible.” Another notation on the hospital records, made on July 8 by a person whose identity is not shown in the record, states “Pt. prob. had MI which caused her fall (?).”

We have already noted that Dr. Michel who treated Anselmus before and after she was hospitalized, stated that she “had no indications of an acute myocardial infarction.” Dr. Trahan did not examine her at all, his opinion as to the cause of her death being based on the assumption that she had sustained an infarction. The condition of her heart did not prevent her from undergoing major surgery for her hip on August 1, 1974, and shortly thereafter she was released from the hospital and transferred to a rest home in Hessmer, Louisiana, where she was residing when she died. As already noted, her treating physician stated that she just “withered away,” and that like a candle “the fire just gradually goes away.”

If Anselmus did suffer a heart attack when she fractured her hip, we believe it was of such a minor nature that it did not contribute in any way to her death on November 18, 1974.

We interpret the medical evidence as showing that arteriosclerosis is a chronic process which begins sometimes in childhood and progresses slowly into old age. A great majority of all people over sixty years of age are affected with that disease. It often is a contributing factor to other complications or physical disorders, such as heart failure or infarction, which cause death. Although arteriosclerosis is seldom the sole or primary cause of a person’s demise, it can be and it occasionally is the immediate or actual cause of death.

We distinguish Coleman v. Winsey, 183 So.2d 118 (La.App. 1 Cir. 1965), relied on by defendant, from the instant suit. In that case, unlike the instant case, the immediate cause of death was found to be “myocardial infarction related to arteriosclerotic cardiovascular disease,” which condition did not exist at the time the will was executed. The treating physician testified that “in effect a heart attack struck her.” We do not interpret that case as holding that legally or medically arteriosclerosis can never be the cause of death.

We find in the instant suit that the immediate cause of the death of Anselmus was arteriosclerosis. She was suffering from that disease at the time her will was executed, on January 24, 1974. Defendant Fuoco, a minister of religious worship, professionally attended or ministered to her at that time. Our conclusion is that defendant is precluded by LSA-C.C. art. 1489 from receiving the benefits of the donation mor-tis causa made in his favor by Anselmus. We thus affirm that part of the trial court judgment which decrees the donation to defendant Fuoco, contained in the will of Anselmus, to be null and void.

Indebtedness to Succession of Sydonia

The trial judge rendered judgment in favor of the Succession of Sydonia and against defendant Fuoco for the sum of $20,506.28. Defendant contends that the court erred in condemning him to pay that amount.

The evidence shows that Mrs. Lydia May-eux Hogan died during or before 1971, leaving her sisters, Sydonia and Anselmus, as her sole surviving heirs and universal legatees. Judgment was rendered on June 23, 1971, placing Sydonia and Anselmus in possession of her estate. As a part of that inheritance, four checks were issued to Sy-donia and Anselmus by four different financial institutions, each for the sum of $10,253.14, amounting to the aggregate sum of $41,012.56. These checks were issued on dates ranging from June 28 to July 16, 1971. All of those checks were endorsed by Sydonia and Anselmus and were cashed.

Plaintiffs allege that defendant cashed those checks and failed to account for the proceeds, except to say that “he turned over the cash to Marie Anselmus Mayeux.” They demand judgment against defendant for the sum of $20,506.28, that being one half of the aggregate amount of the above checks. The trial judge found that defendant was indebted to the Succession of Sydo-nia for that amount, and he rendered judgment accordingly.

Fuoco testified that the amount of one of the above checks was deposited to the joint account of Anselmus and Fuoco in the Rap-ides Bank & Trust Company, and that the remaining checks were cashed and were used to purchase bonds for Anselmus. He stated that the bonds were sold later and that eventually the proceeds of all four checks were deposited in the joint account of Anselmus and Fuoco, in the Rapides Bank.

The evidence shows that deposits amounting to the aggregate sum of $46,-839.01 were made to the joint account of Anselmus and Fuoco in the Rapides Bank between July 14 and December 31,1971. A withdrawal of $3,000.00 was made from that account by Fuoco alone on November 18, 1971, and on the next day that amount was deposited in the personal account of Fuoco in the Central Louisiana Bank and Trust Company in Marksville. The remaining balance of $43,839.01 was withdrawn by Fuoco from the joint account in the Rapides Bank on January 10, 1972, and the same day Fuoco deposited that amount, $43,-839.01, in his personal savings account in the Rapides Bank. Other deposits were made to defendant’s savings account in the Rapides Bank during 1972. On March 1, 1973, Fuoco withdrew $40,000.00 from that account, and on the same day he deposited (1) $20,000.00 to the account of “St. Armando’s Church Poor Soul’s Fund, by Father Fuoco,” in First Federal Savings and Loan Association of Alexandria; and (2) $20,-000.00 in the account of “Perpetual Masses Fund, by Fr. Armando Fuoco,” in that savings and loan association.

On October 5, 1973, defendant transferred the entire amount on deposit in the account of St. Armando’s Poor Soul’s Fund to the account of “Fr. Armando Fuoco or Merino Vacca,” in the same financial institute. Merino Vacca is defendant’s niece. Also, on October 5, 1973, Fuoco transferred all funds on deposit to the account of Perpetual Masses Fund to an account solely in his own name in the above savings and loan association.

The record also shows that in 1973, defendant made deposits aggregating $20,-000.00 to the account of “Altar Society Perpetual Fund, By: Fr. Armando Fuoco,” in the above savings and loan association in Alexandria. He withdrew all of those funds on October 5, 1973, however, and deposited them to the account of “Fr. Armando Fuoco or Paola Vacca,” in the same institution. Paola Vacca is defendant’s nephew.

Various sums of money, most of which were identified as “interest” payments, were deposited to defendant’s personal savings account in Rapides Bank during the years 1972, 1973 and 1974. The income tax returns of defendant Fuoco show that he received interest payments of $1,346.00 in 1971, of $2,487.00 in 1972, of $3,800.00 in 1973, and of $4,728.00 in 1974. At the time of the trial the following accounts existed in First Federal Savings and Loan Association of Alexandria:

“Fr. Armando Fuoco or Paola Vacca,”
Account No. 604912-$20,000.00
“Fr. Armando Fuoco,”
Account No. 608258-$20,000.00
“Fr. Armando Fuoco or Merino Vacca,”
Account No. 608264-$20,000.00

The trial judge concluded that at least $51,000.00 of the above funds belonged to the estates of, or had been obtained from, Sydonia and Anselmus. We agree with that finding.

Defendant Fuoco explained some of the above transactions. He testified that he had planned to make a trip to Rome and to the Holy Land in 1972, and in view of those plans Sydonia and Anselmus asked him to take approximately $40,000.00 of their funds to Jerusalem and to contribute that amount as offerings at various churches there. He stated that in compliance with that request he transferred approximately $40,000.00 from the joint account of Ansel-mus and himself to his personal account on January 10,1972. The record shows that he actually transferred $43,839.01 to his personal account on that date. He did not make his planned trip until February, 1973, and he stated that even then he did not take with him the money which the decedents had given to him because he was afraid of losing it. While in Rome, however, his brother-in-law gave him $24,-000.00, and he acquired the additional sum of $47,000.00 from his family estate and from black market operations. He testified that he then contributed $22,500.00 to churches in Jerusalem, in the names of Sy-donia and Anselmus. He did not obtain receipts for any of those contributions and he has no evidence, other than his testimony, to show that the contributions were made. He stated that he incurred expenses of $1,500.00 for the trip, which were to be paid by the decedents, and that he thus used $24,000.00 of his funds for the trip and for contributions in behalf of the decedents.

According to defendant, he returned from his trip with $47,000.00, in cash, in his pocket. He stated that on February 25, 1973, immediately after his return, he handed to Sydonia and Anselmus the sum of $43,800.00, in large bills, that that entire amount of money was placed in an aluminum box owned by the decedents, and that Sydonia and Anselmus then gave him a receipt for that payment. He produced a receipt dated February 25, 1973, signed by Sydonia and Anselmus, which reads:

“We undersigned, Anselmus and Sydo-nia Mayeux declare and give this note as our receipt to Fr. Armando Fuoco, our Pastor, declaring to have received from him this very night $43,800 (Forty-three Thousand Eight Hundred) in cash and the bonds and the ring of our sister Lydia.”

Father Fuoco reasoned that after he paid $43,800.00 to the decedents from his personal funds on February 25, 1973, he then became sole owner of the funds (amounting to $43,839.01) which Sydonia and Anselmus had given to him for contributions to Jerusalem churches, and which had been transferred to his personal account on January 10, 1972. He thereupon withdrew most of these funds, $40,000.00, from his savings account on March 1, 1973, and invested these funds in other places.

The sum of $43,800.00, which he allegedly gave to Sydonia and Anselmus in large bills on February 25, 1973, and the aluminum box in which that money was placed, have never been found. Defendant explains that “they still must have the money hid somewhere in the house.”

The trial judge held that defendant Fuoco had failed in his fiduciary duty as agent for Sydonia, and he rendered judgment in favor of the Succession of Sydonia and against defendant for the amount which Sydonia had received from the estate of her deceased sister, Mrs. Hogan. We conclude that defendant received at least the sum of $20,506.28 from Sydonia during her lifetime, that he has failed to account for or to repay those funds, and that he is indebted to her estate for that amount. We find no error in the judgment rendered by the trial court condemning defendant to pay that amount to the Succession of Sydo-nia.

Reconventional Demands

Defendant Fuoco filed, a reconven-tional demand in his capacity as executor of the Succession of Anselmus, alleging that the succession is entitled to recover $31,-192.68 from the Estate of Sydonia for ad-vanees made to and expenses incurred in behalf of the latter. Defendant, however, was discharged as executor of the Succession of Anselmus by judgment of the trial court rendered on February 10, 1976, and we are affirming that judgment. The trial judge held that his recon ventional demand as testamentary executor of the Succession of Anselmus “fails for want of interest on his part to assert same.” We agree. The co-executors appointed to succeed him do not seek the relief prayed for in the recon-ventional demand. For these reasons, we conclude that defendant-reconvenor has no capacity to represent the Succession of An-selmus in this proceeding, and the reconven-tional demand made in behalf of that Succession thus is dismissed.

Father Fuoco filed a separate recon-ventional demand, individually, alleging that an agreement was entered into between him and Sydonia on January 6, 1974, under the terms of which the latter became indebted to him for the total sum of $31,-450.00. He seeks a judgment against the Succession of Sydonia for that amount.

The trial judge found that the alleged contract between defendant and Sydonia was invalid, since on its face it was intended to take effect after death, and it was not executed in the form of a will. He rendered judgment denying the recon ventional demand of defendant.

Defendant introduced in evidence a written document signed by Anselmus, Sydonia and himself, dated January 6, 1974, the pertinent portion of which reads as follows:

“Malcolm, our nephew, came by few days ago, and we told him that no one care for us; the only one is the pastor, and we expressed to him our desire and will that after our death, whatever will be left over will be donated to Father as our gratitude to him. The expression of his face was not pleasing to us and for fear he will disturb in the future Fr. Armando, this apply as well for our sister in law, We declare once more to leave everything to Fr. Armando. In any event the law allow a share to relatives, we PLEDGE TO PAY FR. ARMANDO FUOCO, not less than TWENTY FIVE DOLLARS A DAY for 365 days in one year, or MORE as the prices go up, or as Father request for his service to us. This paiment will start from the First day of April 1971, when Father started to care for us, up the last day of our life. Any expences Father has incurred for us, and he has a list of them, will be reimbursed to him. IF EVER THE EXPENCES WILL BE ABOVE THE VALUE OF OUR ESTATE, FATHER ARMANDO PLEDGE TO TAKE CARE OF US AT HIS OWN EXPENCES.
In the Name of Our Lord Jesus Christ we promise and pledge the above.”

We have concluded, as did the trial judge, that this document was intended as a donation mortis causa. It is invalid as such a donation, since it was not executed in the form of a Last Will and Testament. Defendant does not allege that he is entitled to recover on quantum meruit, but we nevertheless have considered the question of whether he might be entitled to relief on that basis. Our conclusion is that he has been adequately compensated for any services which he may have rendered or any expenses which he may have incurred in behalf of the decedent.

For these reasons, we find no error in the judgment of the trial court which rejects the reconventional demands of defendant against the Succession of Sydonia.

Judgment Discharging Executor

Judgment was rendered by the trial court on February 10, 1976, discharging Fuoco as executor of the Succession of Anselmus. Defendant contends that the trial judge abused his discretion in rendering that judgment.

The trial judge stated in his reasons for judgment that defendant was removed as executor because of his failure to open a separate account for the succession, and his failure from the date he was qualified until the date of trial, over a year, to make any deposits to decedent’s account or to any special or fiduciary account.

Applicable here, we believe, are Articles 3182 and 3222 of the Louisiana Code of Civil Procedure, which provide:

Art. 3182. “The court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of court, has ceased to be a domiciliary of the state without appointing an agent as provided in Article 3097(4), or has failed to give notice of his application for appointment when required under Article 3093.
“The court on its own motion may, and on motion of any interested party shall, order the succession representative sought to be removed to show cause why hé should not be removed from office. The removal of a succession representative from office does not invalidate any of his official acts performed prior to his removal.”
Art. 3222. “A succession representative shall deposit all moneys collected by him as soon as received, in a bank account in his official capacity, in a state or national bank in this state, and shall not withdraw the deposits or any part thereof, except in accordance with law.
“On failure to comply with the provisions of this article, the court may render a judgment against the succession representative and his surety in solido to the extent of twenty percent interest per an-num on the amount not deposited or withdrawn without authority, such sum to be paid to the succession. He may also be adjudged liable for all special damage suffered, and may be dismissed from office.”

In Succession of Dykes, 258 So.2d 606 (La.App. 1 Cir. 1972), the First Circuit Court of Appeal held that the failure of the administrator of a succession “to deposit the funds from the three banking institutions in the bank account of this succession was a clear breach of the duty imposed on him as succession representative by La.C. C.P. art. 3222,” and that his failure to perform that “legal duty in a position of trust” was sufficient reason to remove him from office as administrator.

In the instant suit the defendant did not deposit any monies collected by him for the estate of Anselmus in a bank account established for that estate, in his official capacity as executor of her Succession. He failed to comply with the requirements of LSA-C.C.P. art. 3222, and there thus was no abuse of discretion on the part of the trial judge in discharging him as testamentary executor.

The heirs of Anselmus instituted an ordinary action against defendant alleging several violations of trust, and demanding that he be discharged as executor. That issue was tried on its merits, and we find no error on the part of the trial judge in rendering judgment discharging him as executor.

Prescription

Defendant filed in this court a peremptory exception of prescription, claiming that the demand of the Succession of Sydonia for judgment against him in the amount of $20,506.28 has prescribed by one year. He argues that the claim is for “the tort of conversion,” and that it now has expired and become unenforceable by prescription of one year, under LSA-C.C. art. 3536.

We consider the claim of the Succession of Sydonia to be for an accounting and for a money judgment, and as such it is subject to the prescription of ten years, as provided in Article 3544 of the Civil Code. We thus overrule the exception of prescription filed by defendant in this court.

Our conclusion after reviewing the entire case is that there was no error in the judgments rendered by the trial court.

For the reasons herein assigned, the judgment appealed from in the instant suit is affirmed. The peremptory exception of prescription filed by defendant is overruled. The costs of this appeal are assessed to defendant-appellant, Armando Fuoco.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Succession of Marie Anselmus MAYEUX. Malcolm A. COCO et al., Plaintiffs-Appellees, v. Armando FUOCO, Defendant-Appellant.
    No. 5521.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Rehearing Denied Dec. 20, 1976.
    Writs Refused Feb. 11, 1977.
    Mansour & Davis by Alfred Mansour, Alexandria, for defendant-appellant.
    Jerold Edward Knoll, Marksville, John R. Contois, Marksville, for plaintiffs-appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

This is a companion suit to the case of Succession of Marie Sydonia Mayeux, 339 So.2d 1236 (No. 5575 on the Docket of this court), which is being decided on this date.

For the reasons assigned in the above case, Succession of Marie Sydonia Mayeux, supra, the judgments appealed from in. the instant suit, rendered on February 10, and on February 27, 1976, are affirmed. The costs of this appeal are assessed to defendant-appellant, Armando Fuoco.

AFFIRMED.


author: LANDRY, Judge.

text:
    Major GARDNER v. MINNIE, INC.
    No. 10907.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Ronald C. Levy, N. A. Danna, Jr., New Orleans, for plaintiff and appellant.
    Donald T. Carmouche, Donaldsonville, for defendant and appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant), appeals judgment dismissing his claim for workmen’s compensation benefits for alleged total permanent disability and for attorney’s fees for averred arbitrary cessation of compensation payments by defendant Minnie, Inc., (Ap-pellee), Appellant’s employer. We reverse and remand this matter to the trial court for further proceedings.

It is conceded that Appellant, who is right handed, sustained a serious injury to his right arm and elbow on October 31, 1972, while operating a mechanical sugar cane harvester within the scope and during the course of his employment by Appellee. Although the record is not entirely clear on the point, it appears that Appellant was employed solely as an equipment operator. From the record, we understand that Appellant operated a cane harvester during the planting and harvesting season. The remainder of the year he operated either a harvester converted to a ditching machine, or a tractor, or some form of mechanical equipment designed or rigged to construct plantation ditches.

For purposes of this opinion, it suffices to state that Appellant was seen and attended by Dr. Herbert K. Plauche, Orthopaedist, on the date of the accident. From reports of Dr. Plauche, attached to Appellant’s brief but not introduced in evidence in the trial court, it is shown that Appellant sustained an eight inch laceration on the medial aspect of Appellant’s right arm and elbow. The wound seriously damaged the soft tissue in the vicinity of the elbow and was sufficiently deep to expose a small portion of the ulna nerve, the muscle bellies of the flexor pronator muscle group and the medial aspect of the elbow joint. In addition, the accident produced several small puncture wounds in the area of the principal injury. Plaintiff was hospitalized several days and was thereafter under Dr. Plauche’s treatment and care until April 30, 1973.

Appellee paid Appellant compensation from the date of injury to May 10, 1974, a period of 78 weeks, at the sum of $49.00 per week, a total of $3,820.00. Appellant also paid all medical expenses incurred during the period for which compensation was paid.

At the trial below the sole issues presented were whether Appellant was totally and permanently disabled and therefore entitled to further compensation, and whether Ap-pellee, a self-insurer, was liable for penalties and attorney’s fees for alleged arbitrary and capricious termination of compensation benefits.

The case was tried on March 12, 1975. The testimony adduced consisted of that of Appellant; Tommy Thibaut, President of Minnie, Inc.; a report of Dr. G. Gernon Brown, who, by agreement of the parties, examined Appellant on March 17, 1975, and submitted his report of said examination to the trial court under date of March 19, 1975; and, the deposition of Dr. Brown taken March 3, 1975. The record also discloses that counsel for Appellee stipulated at trial that he would arrange to take the deposition of Dr. Plauche subsequent to March 12, 1975, and would notify counsel for Appellant as to the details of taking the deposition. It was agreed the deposition would be included in the record. It is conceded that Dr. Plauche was not so deposed.

Appellant’s trial court brief recites that, pursuant to a letter of approval by counsel for Appellee a copy of which is attached, the parties agreed to submit the matter to the trial court on the record as made up, together with Dr. Brown’s report of March 19, 1975. The trial court decided the matter on the record as thusly constituted.

Appellant testified his duties consisted of operating a ditching machine on Appellee’s plantation all during the year except for the sugar cane planting and harvesting season when Appellant operated a mechanical sugar cane harvester. His testimony indicates he operated the same machine year round, the device being adapted to ditch digging when not used in planting and harvesting sugar cane. He stated the accident occurred when his arm became caught in the cane loader. He attested to persistent pain in his right shoulder, elbow and arm; loss of grip and strength in his right hand and arm; and inability to apply significant force or pressure with his right arm without considerable pain. He noted that his work involved the coordinated operation of three levers with his right hand and two levers with his left hand which procedure required the application of considerable force which he was no longer able to exert without appreciable pain.

Mr. Thibaut stated in essence that he discontinued compensation payments predicated upon reports of Dr. Plauche (which were not introduced in evidence below), the advice of Appellee’s attorney, and Thibaut’s personal determination that Appellant had been paid all compensation due.

Dr. Brown examined Appellant for purposes of evaluation only. His deposition and report of March 19, 1975, disclose his conclusion that Appellant has sustained a 20 to 25% impairment of the use and function of the right upper extremity. He noted that Appellant had suffered considerable soft tissue injury to the right arm and fracture of the radial head of the right elbow. He noted a loss of grip in Appellant’s right hand and was of the opinion that Appellant could not perform hard manual labor without significant pain. Regarding Appellant’s ability to operate a tractor or other similar equipment involving the manipulation of levers, Dr. Brown felt it would depend on the amount of force and exertion required of the operator’s right hand. He was of the opinion that Appellant could not manipulate levers if strenuous exertion of the operator’s right hand was involved. From the questions posed, it appears that Dr. Brown was of the opinion that Appellant was engaged as a laborer to cut sugar cane by hand, a job Dr. Brown was certain Appellant could no longer perform.

We find Dr. Brown’s testimony of highly doubtful value to the courts in resolving the issue of Appellant’s disability. We so find because the examination of the witness did not make entirely clear to Dr. Brown the precise nature of Appellant’s duties and failed to reveal the true nature of Appellant’s work. We believe that for all practical purposes, Dr. Brown’s evaluation was based on the assumption Appellant was a common laborer. A determination as to whether Appellant had been engaged in performing common labor may be relevant in concluding whether or not he had been totally disabled by the accident.

We also find that in this instance it is impossible to fairly and impartially adjudicate Appellant’s claim without the benefit of the testimony of the treating physician, Dr. Plauche, who attended Appellant for six months following the accident. Inasmuch as Dr. Plauche performed the corrective surgery required for treatment of Appellant’s injuries, we deem his testimony of paramount importance in determining the extent and duration of Appellant’s disability. Attached to Appellant’s brief in this court we note a report of Dr. Plauche to the Vocational Rehabilitation Center in Baton Rouge, Louisiana, dated April 8, 1975. Appellant in oral argument contends this report was inadvertently excluded from the record. We find the record devoid of such report or any stipulation by counsel for both parties that it would be submitted for consideration by the trial court.

Additionally, medical evaluation of percentage disability was considered by our Supreme Court in Futrell v. Hartford Accident and Indemnity Company, 276 So.2d 271 (La.1973), as being “but one feature to be considered by the courts in determining whether the employee is totally and permanently disabled”. Though it may be determined that Appellant can be classified as a skilled or semi-skilled laborer, which in the case at bar can only be adduced by pertinent evidence which would indicate his type of work required special experience or knowledge, the Court in Futrell, above, sets forth guidelines for a legal determination of disability and quotes from Malone, Louisiana Workmen’s Compensation, Section 272 (Supp.1964) as follows:

“The law fixes disability in terms of loss of earning capacity, which includes the extent of the physiological impairment as only one factor. The function of the judge is much broader than that of the medical man, for loss of earning capacity, which is the eventual touchstone of all legal definitions of disability, can be determined only by reference to the state of the labor market, hiring practices, the humanity of obliging a man to work in pain, and other broad policy considerations which the physician is not equipped nor authorized to evaluate.” (Emphasis by the Court)

The plaintiff in Futrell, above was an automobile mechanic who had incurred a knee injury causing a 10% impairment of function to his right leg. In evaluating the weight to be given to the disability, the Supreme Court set forth the following test:

“The degree of Futrell’s disability must not, however, be judged by placing him in ideal working conditions. The test must be whether the injury has substantially decreased FutrelPs ability to compete with ablebodied mechanics in the general labor market.”

Because of its nature and the purpose the law was intended to achieve, our courts have taken a paternalistic attitude toward our workmen’s compensation law. Robinson v. Fidelity & Casualty Co. of New York, 181 So.2d 318 (La.App. 3rd Cir. 1965).

Where it is established that a workman has sustained an impairment of a physical function or bodily member, but the record on appeal is insufficient to determine the extent of the impairment, remand is proper. Burk v. Security Insurance Company of New Haven, 248 La. 177, 177 So.2d 278 (1965); Rougeau v. Travelers Insurance Co., 299 So.2d 387 (La.App. 3rd Cir. 1974).

Moreover, our jurisprudence is established to the effect that the remand of a workmen’s compensation suit to the trial court for the taking of certain testimony, or the taking of required testimony, is authorized both by the state constitution and statutes. Myles v. Procon, Inc., 259 So.2d 77 (La.App. 4th Cir. 1972).

Equally applicable is the rule that where the medical evidence in a workmen’s compensation case does not permit a proper determination of the extent of an employee’s disability, it lies within the discretion of the appellate court to remand the matter and allow the employee to introduce evidence which might establish his disability. Hoffpauir v. Hardware Mutual Casualty Co., 192 So.2d 588 (La.App. 3rd Cir. 1966); Robinson v. Fidelity & Casualty Co. of New York, above; LSA-C.C.P. Art. 2164.

We find that an evaluation of Appellant’s admitted employment related injury and the effect such disability has upon Appellant’s ability to perform the duties in which he was engaged at the time of injury, cannot be properly adjudicated without an evaluation of Appellant’s condition by Dr. Brown with full knowledge and understanding of the precise nature of Appellant’s work. We also find that this matter cannot be properly resolved without the testimony of Dr. Plauche, Appellant’s treating physician, together with the various reports of the several medical examinations made by Drs. Brown and Plauche. Additional evidence is also required to arrive at a legal determination as to whether Appellant can be classified as a common laborer, a semi-skilled or skilled laborer.

It is ordered, adjudged and decreed that the judgment of the trial court rejecting Appellant’s demands be and the same is hereby annulled, reversed and set aside and this matter is remanded to the trial court for further proceedings consistent with the views herein expressed and rendition of such judgment as the trial court shall deem proper in the light of the record as constituted on re-trial, all costs of this appeal to be paid by defendant, Minnie, Inc.

Reversed and remanded.


text:
    Maurice J. PRIMEAUX, Jr. v. BENNETT HOMES, INC.
    No. 10912.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Jeff McHugh David, Victor J. Roy, Baton Rouge, for plaintiff-appellant.
    Gerald E. Songy, Baton Rouge, for defendant-appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff Maurice J. Primeaux, Jr. (Appellant) appeals from judgment dismissing his suit for diminution of the purchase price of a residence and for attorney’s fees, because of alleged redhibitory vices existing in the premises at the time of purchase. Defendant herein is Bennett Homes, Inc. (Appellee), builder-vendor of the residence in question. We reverse and render judgment for Appellant.

The principal issue' litigated below, is whether a warranty clause in a contract to sell real property constitutes a conventional warranty which insulates the purchaser from the effect of LSA-C.C. Article 2521 which provides that an action in redhibition does not lie with respect to an apparent defect, meaning an imperfection discoverable upon simple inspection.

On January 4, 1974, the parties entered into a “Purchase Agreement and Rental Agreement” pursuant to which Appellant agreed to purchase from Appellee, for the sum of $56,900.00, a certain lot and the residence and other improvements situated thereon. The property in question is located in the Parkview Oaks Subdivision of East Baton Rouge Parish. An affidavit of construction completion was filed by Appel-lee, builder, on January 2, 1974. Subject agreement further provides for the sale of Appellant’s residence to Appellee, said residence being located in Concord Estates, Baton Rouge, Louisiana. Additionally, the agreement stipulated that both acts of sale were to be passed within ten days of expiration of the sixty day lien period applicable to the above mentioned completion notice. The agreement also recited that in the intervening period, each party was to occupy the other’s premises as lessee at a stipulated rental charge.

The mentioned agreement contains the following pertinent language:

“The normal one year builders warranty on Bennett Homes’ property to commence upon occupancy by Primeaux.”

The home purchased by Appellant was commenced by Appellee for resale. During construction Appellant and his wife became interested in acquiring the residence and ultimately decided to purchase. The Pri-meaux’ visited the property almost daily during the remainder of the construction period. At their request, changes were made in the original plans.

Appellant began occupancy of the new home on January 4, 1974, the day the purchase-rental agreement was executed. It had rained the evening before and was raining as Appellant was moving his furniture into the residence. Due to the hereinafter described condition of the carport, Appellant experienced difficulty in entering and leaving the house without tracking in water standing on the carport in the vicinity of the carport entrance to the house. To alleviate the condition, Appellant placed layers of cardboard on the carport floor in the area of the accumulation. Earl Bennett, a signatory to the contract in question, was present on this occasion. The condition of the carport was pointed out to him and he agreed the condition would be taken care of.

Appellant concedes he inspected the house continuously after he decided to purchase. He also acknowledges that at his request the plan for the front walk was revised to include a step down and an addition was made to the patio area at the rear of the residence. It is acknowledged that the addition to the front patio was the last step in construction and was completed shortly before Appellant moved in.

Between January 4 and March 17, 1974, the latter date being the date the sale was consummated, Appellant noted and advised Appellee of the following defects in the premises: (1) The concrete floor under the covered portion of the carport held rainwater to a depth varying from V2" to ZA"; (2) The covered patio area floor had holes some of which were approximately 2" in diameter and V2" deep; (3) The front walk developed a wide crack next to the stepdown which had been added at Appellant’s request; and (4) The uncovered area added to the patio floor developed one or two cracks extending across its entire width.

The testimony is in some conflict concerning whether the cracks in the patio floor were noted prior to the act of sale. Both parties agree, however, that the other mentioned defects were called to Appellee’s attention prior to the date of sale and that Appellee agreed to make the necessary repairs. Appellee concedes that following the purchase agreement, Appellee agreed to repair all of the defects. It appears that his action arose solely because of the failure of the parties to agree on the manner in which the defects were to be corrected as will hereinafter appear.

Appellant contended below, and reurges here, that the written warranty.in the contract constitutes an express warranty against defects in workmanship and materials and that pursuant to such warranty Appellee is obligated to correct the defects regardless of whether they were apparent at the time of sale. Alternatively, Appellant contended he may sue upon an apparent defect because the agreement to purchase obligated him to buy, therefore the urging of a patent defect is the same as a purchaser proceeding under LSA-C.C. Article 2455 which allows a buyer to seek either a reduction in price or abandonment of the sale where the object of the sale is damaged or destroyed in the interval between the consummation of an agreement to buy and the sale itself.

The trial court concluded that because the terms of the warranty provision of the contract to purchase were vague and indefinite, this warranty did not constitute an express warranty in lieu of the implied warranty pursuant to LSA-C.C. Articles 2475 and 2476. The trial court also held that the legal warranty established by Articles 2475 and 2476, above, is applicable herein because it was not expressly waived. Consequently, the redhibition articles apply and Appellant had one year from the date of sale in which to institute his action. The court, however, found that since the defects were patent, the redhibitory action articles were inapplicable. In disposing of Appellant’s alternative demand pursuant to LSA-C.C. Article 2455, which allows a buyer to seek reduction in price or abandonment of a sale where the object of the transaction is damaged or destroyed before the sale is consummated, the court noted that LSA-C.C. Article 2544 provides that the action for reduction or abandonment permitted by Article 2455 is subject to the same rules governing redhibition as established by Articles 2475 and 2476, above. On this finding the court held that once the sale is consummated, an action in reduction or price will not lie with respect to a defect discoverable on simple inspection.

We pretermit all consideration of whether an action in redhibition pursuant to LSA-C.C. Article 2520 or an action in reduction of price conformably with LSA-C.C. Article 2455 lies herein. We do so because we find in this case an enforceable collateral oral contract made between the parties whereby the vendor expressly agreed to remedy the specific defects complained of.

It is well established law that our courts of appeal may render any judgment warranted by the record. LSA-C.C.P. Article 2164. The foregoing statutory provision was intended to abolish the theory of the case doctrine formerly existing under our jurisprudence and which limited litigants to recovery based on the legal theories advanced and to the relief for which he prayed. See Official Revision Comments, LSA-C.C.P. Article 2164; see also Temple v. Liberty Mutual Ins. Co., 316 So.2d 783 (La.App. 1st Cir. 1975); Ohanna v. Ohanna, 129 So.2d 249 (La.App. 4th Cir. 1961).

The record discloses that prior to the sale in question, certain defects were known to both parties. It is also conclusively shown that prior to the sale Appellee unequivocally agreed to remedy those defects which were then known, and that Appellant purchased relying upon Appellee’s promises to repair. As previously noted, the only dispute between the litigants concerns the manner in which the repairs were to be performed.

Individuals may enter into any agreement or contract which is not contrary to law, public order or good morals, and which does not affect the rights of third parties. LSA-C.C. Articles 11, 1764. We see no reason why a vendor and purchaser may not enter into a collateral agreement whereby the former obligates himself to repair known defects in the object of the sale. When, as in this case, such an agreement is oral, proof thereof may present problems at trial. In this case, however, no such problem arises in view of vendor’s admission that the defects were to be corrected. The codal articles on redhibition, reduction in price and avoidance of a sale, do not proscribe agreements modifying their provisions, they merely regulate the rights of purchaser and vendor in the absence of agreement contrary to their terms. We see nothing contrary to law, public order or good morals which prevents parties from validly contracting that defects known prior to a sale will be remedied by the vendor after the transfer. Under such circumstances, the consideration to be paid by the purchaser supports the promise to repair. We find, therefore, that in this instance Appellee entered into a valid and binding contract to repair known defects. We likewise find that such a contract is subject to the ten years prescriptive period provided by LSA-C.C. Article 3544.

Appellant produced Nolan Fairbanks, contractor, who qualified as an expert in the laying, pouring and finishing of concrete. Fairbanks inspected the premises on three occasions. He determined the extent of flooding under the covered carport area by flooding the area with a hose pipe. He considered the work defectively performed because the surface was saucer shaped instead of being even and sloping away from the house. He attributed this defect to the fact that the forms were not properly set when the area was poured. He also noted indentations in the surface which he found to have been caused by water which bubbled up during the finishing process and which had not been properly finished over. He also found that an area of aggregate slab, poured after the floor of the covered carport was laid, was at a higher elevation than the carport floor and thus the added area acted as a dam impounding water. He noted the accumulation of water varied from lh" to %" in depth over most of the carport area and as much as ZU" in the deepest recess of the carport floor. Fairbanks stated the cracks found in the uncovered addition to the patio resulted from the failure to provide expansion joints in that area. The crack in the front walk he attributed to the absence of an expansion joint in the sixteen foot section of the walk involved. He stated there should have been an expansion joint at an interval of eight to ten feet. Fairbanks recommended removal and replacement of the concrete surface under the carport, the uncovered area of the patio and the front sidewalk. He stated that “capping” the carport to raise its elevation would not result in a satisfactory bind between the present surface and the added capping and there was almost a 100% possibility that capping would crack. Fairbanks gave a detailed estimate aggregating $1,525.40 for the removal and replacement of the defective concrete areas, which estimate we find to be amply supported by his expert testimony.

Robert Aertker, testifying for Appellee, was qualified as an expert in the field of capping or overlaying. He explained that in this instance capping could result in the carport floor being level with or higher than the bottom of the carport entrance doorway. He could not reasonably guarantee that capping would not crack. He did not make a detailed inspection of the carport floor, neither did he determine the precise elevations involved. He gave no details as to the cost of repairs which he estimated at $250.00 and which he conceded came “off the top of his head”.

We find Fairbanks’ estimate of repair costs to be adequately supported by his professional findings and opinion based thereon. We agree that capping is most likely to produce unsatisfactory results and that the repairs necessary may best be performed in a workmanlike manner by removal of the areas involved and the laying of new concrete surfaces to proper grade and with adequate expansion joints.

Appellant is not entitled to claimed attorney’s fees which, as a general rule, are recoverable only when authorized by statute or expressly provided for by contract. Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1958); Koch v. Louisiana Power & Light Company, 298 So.2d 124 (La.App. 1st Cir. 1974).

While Appellant prayed for damages in the sum of $1,500.00, the record contains proof, offered without objection, of damages in the sum of $1,525.40. LSA-C.C.P. Articles 862, 865, 2164 and 5051 mandate a liberal construction of pleadings to the extent a litigant is entitled to such relief as is justified upon the record, regardless of whether or not the particular relief granted was expressly requested. Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So.2d 297 (La.1973); Cambrice v. Fern Supply Co., Inc., et al., 285 So.2d 863 (La.App. 4th Cir. 1973). Judgment will therefore be rendered in favor of Appellant in the sum of $1,525.40.

It is ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby reversed and set aside; and judgment rendered herein in favor of Plaintiff Maurice J. Primeaux, Jr., and against Defendant, Bennett Homes, Inc., in the full sum of $1,525.40 with legal interest thereon from date of judicial demand, until paid, and all costs of these proceedings.

Reversed and rendered.


text:
    Larry D. WARD v. SEARS, ROEBUCK & COMPANY et al.
    No. 10928.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Sidney W. Provensal, Jr., New Orleans, and Standwood Duval, Jr., Houma, for plaintiff and appellant.
    Harry McCall, Jr., New Orleans, and Charles Houk, House Counsel, Sears, Roebuck & Company, Atlanta, Ga., for defendants and appellees.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

This appeal by Plaintiff, Larry D. Ward (Appellant), is from judgment dismissing his suit for alleged libel and slander. Named defendants are Appellant’s former employer Sears, Roebuck and Company; David Stewart, Manager, Sears store in Houma, Louisiana; Robert Dusse, Comptroller, Sears in Houma; Camille Lewis, Credit Department Employee, Sears in Houma; Hercel Fletcher, Group Credit Sales Manager for Sears New Orleans area; and Adam Orgera, Group Manager for Sears in New Orleans. We affirm.

Appellant, Credit Manager for Sears’ Houma store, was accused by a subordinate, Camille Lewis, of violation of certain company policies including allowing Mrs. Lewis to “work off the clock”, meaning working overtime without pay. As a result of the accusations, Appellant offered to resign and did in fact sign a blank resignation form. Appellant subsequently retracted his resignation and was discharged by his immediate superior David Stewart. The issues presented and argued below were: (1) Did Appellant resign voluntarily or under duress; (2) Were Mrs. Lewis’ accusations false, libelous and slanderous; (3) Did Ap-pellees enjoy a qualified privilege and, if so, was the privilege abused in that the statements involved were made with malice and in bad faith; and, (4) Quantum in the event of liability.

On March 18, 1974, Appellant was employed as Credit Manager of Sears’ Houma establishment. He had been employed by Sears for nine years and served as Credit Department Manager since October 1, 1971. Appellant’s office staff consisted of defendant Lewis, Gladys Prejean, Delores Morrison, and JoAnn Kirkpatrick. It is conceded that Appellant enjoyed the reputation of an outstanding credit man. For the past two years Appellant and his department were named the outstanding credit department in Sears southern region comprising 120 stores. Coincidentally, Appellant was being considered for a third such citation when this matter arose.

Mrs. Camille Lewis was employed in the credit department of Sears’ Houma store since February, 1969, except for a six week leave granted her for a stay in a mental institution sometime in early 1970. On March 12, 1974, Mrs. Lewis requested the Personnel Office to transfer her to another department. It appears she was unhappy in her then position. She also wished an early transfer because of an anticipated reduction in credit department personnel. During this visit and'in Mrs. Lewis’ discussion with Personnel, Mrs. Lewis mentioned that she had worked “off the clock”, which is against Sears’ policy and is a violation of federal law which subjects an employer to criminal proceedings pursuant to the Fair Labor Standards Act and also renders an employer liable to fine. Mrs. Lewis also disclosed that mileage due her for work outside the office was improperly paid her with Appellant’s consent, knowledge, and approval. In this regard the record establishes that the mileage due Mrs. Lewis for such outside work was recorded by Mrs. Lewis on Appellant’s mileage sheet which Appellant signed. Appellant in turn reimbursed Mrs. Lewis. Additionally it was revealed that receipts for reimbursement of the mileage traveled by Mrs. Lewis were not properly handled. The receipts were taken from the cashier instead of entering them in a receipt book and the correct number of copies made.

Mrs. Lewis’ alleged working off the clock was reported by the Personnel Department to Dusse, who in turn reported it to his superior and to Stewart. On March 15, 1974, Stewart contacted Fletcher. In turn, Fletcher relayed the information to Orgera, who instructed Fletcher to proceed to Hou-ma and investigate the charges.

On Saturday, March 16, 1974, Mrs. Lewis gave a written statement to Dusse and Stewart in which she alleged she had worked off the clock approximately 66 hours. It was agreed she would be reimbursed for this amount of overtime. It was further agreed Mrs. Lewis would remain off work for three or four days, with pay, and her request for transfer to another department was granted.

Fletcher arrived at the Houma store on Monday, March 18, 1974. He privately exhibited the mileage sheets and improper receipts to Appellant. Appellant was advised that Mrs. Lewis reported the mileage sheets were for calls Mrs. Lewis made before reporting for work in the mornings and for which she had not been fully paid. Fletcher requested an explanation from Appellant. The testimony is conflicting as to what transpired at this juncture.

Fletcher testified that Appellant immediately declared Appellant had “done wrong” and wanted to resign. Fletcher told Appellant that he could not accept such an impetuous reaction and that Appellant owed Fletcher an explanation. According to Fletcher, Appellant then stated that he was tired, overworked, lacked sufficient help and had asked Mrs. Lewis to make the calls. Appellant also said he did not want to cause anyone any problems and would not fight the matter; that he just wanted to resign and get it over with. At this point in the discussion, Fletcher received a telephone call from a Mr. Hogan, Regional Credit Manager in the Sears Memphis, Tennessee office. Fletcher left to take the call in another office and on returning told Appellant that Hogan was calling to announce that Appellant’s department had again been selected for citation for outstanding service. He informed Appellant that under the circumstances he had no choice but to inform Hogan of the developments at the Houma store and, after explaining to Hogan what Fletcher felt was involved, Hogan had stated “it looks very bad”. Appellant again requested to be allowed to resign but before doing so he wished to speak to his staff and he was allowed to do so.

Appellant testified that when shown the mileage sheets and receipts by Stewart, he noted the sheets were not identical to those he had signed. He observed some additions and alterations thereon although he admitted having signed the mileage sheets made out by Mrs. Lewis for calls which she made outside the office at Appellant’s request. He denied, however, that Mrs. Lewis “worked off the clock” with his knowledge and contended that Mrs. Lewis had been paid for all outside calls which she had made at Appellant’s request. Appellant stated that when Fletcher returned from answering Hogan’s call, Fletcher informed Appellant that Hogan said there was “no hope” for Appellant.

It is conceded that following the discussion between Appellant and Fletcher, Appellant, with Fletcher’s consent, proceeded to the Credit Department and advised his staff of the charges made against him by Mrs. Lewis. In effect he stated he did not want to involve the staff; that he wanted to thank them for past cooperation and urge their continued loyalty to Sears; and that under the circumstances he would have to resign or be fired. This development created consternation in the department. Fletcher suggested that Appellant leave the office for a few minutes while Fletcher attempted to calm the employees. Mrs. Morrison and Mrs. Prejean were requested by Fletcher to report to Stewart’s office to explain what they knew about the situation. Appellant left for a cup of coffee and in a few minutes returned. Upon passing the partly open door to Stewart’s office, Appellant overheard a heated conversation between Mrs. Morrison, Mrs. Prejean, and Stewart. Appellant entered the office and noted the ladies on the verge of tears. He also observed Stewart to be considerably agitated. He testified that not wishing anything to happen to the ladies he requested that they leave Stewart’s office. He concedes that he offered to resign and noted a blank resignation form on Stewart’s desk. He also stated he asked for the form, signed it in blank and then went to his office where he removed his personal belongings from his desk and departed.

Stewart’s testimony coincides in large part with that of Appellant regarding the incidents in Stewart’s office in the present of Mrs. Morrison and Mrs. Prejean. Stewart denied, however, that when Appellant entered his office a blank resignation form was lying on Stewart’s desk. He stated that after Appellant again stated a desire to resign, Stewart took a resignation form out of his desk drawer and handed it to Appellant in the presence of the ladies and asked Appellant if Appellant were sure he wanted to resign. Stewart said Ward entered “personal” on the form as the reason for his resignation.

On Tuesday morning, March 19, 1974, on orders of Stewart a meeting was held with each member of the credit department in an attempt to stop rumors to the effect that Appellant had resigned because of immorality and misuse of company funds. That same afternoon a similar meeting was held with the store’s division managers.

The following morning, Appellant came to the store and demanded of Fletcher and Stewart that Appellant be allowed to see his resignation form and was handed the form for his inspection. What ensued is also in dispute. Stewart and Fletcher testified that when Appellant was handed his resignation he tore it up and stuffed the pieces in his pocket. Appellant then became violent and exceedingly profane. Appellant beat his fist and hand on the desk, cursed, demanded to be fired and wanted to know who would fire him. Stewart also testified that in view of Ward’s conduct Stewart was left with no choice but to let Ward go.

Appellant testified, however, that after resigning on Monday he reconsidered and wanted to retract his resignation because he felt he had done no wrong. He returned to the store on Wednesday and upon being shown his resignation he tore it up when he noted thereon a notation that he was not eligible for rehire despite the further notation that his service and conduct were excellent. He acknowledged telling Stewart he did not want to resign but would rather be discharged. He also conceded some harsh words that he would not normally have used were said and that he was not a “pussycat” on this occasion. He denied, however, that he cursed or became violent or abusive.

Stewart and Fletcher concede Appellant’s work record was excellent. Stewart also acknowledged a memorandum by him referring to Appellant’s resignation, Appellant’s subsequent change of mind and Stewart’s subsequent release of Appellant because of Appellant’s violation of company policy. Additionally, Stewart noted that Appellant was not eligible for rehire because of conduct unbecoming an executive officer.

Mrs. Morrison and Mrs. Kirkpatrick, testifying for Appellant, stated in effect they had never seen Mrs. Lewis working in the office after hours. They noted her presence after hours but stated she was there for personal reasons, waiting for a friend who worked in another department. They also stated that on many such occasions Mrs. Lewis declined to help other employees on explaining “I’m here, but I’m not here”.

Mrs. Lewis testified that although Appellant did not request that she work after hours or make weekend calls on credit customers, she did so with Appellant’s knowledge but without any intent on her part to collect overtime pay. She stated that her overtime work surfaced when Personnel asked her about overtime and she was later asked the same question by Dusse and Stewart. Mrs. Gladys Prejean attested that Mrs. Lewis worked in .the office after hours.

While Appellant concedes Mrs. Lewis made overtime calls at his request, he contends she was paid by adjustments to her time cards which indicated her arrival at 8:30 A.M., which is earlier than her normal arrival time when she worked calls. It is in dispute whether Mrs. Lewis should have been paid from the time she left her home on calls or the time she was to report for work. Appellant contends she was due no pay for travel time from her home to work. Appellees maintain she was entitled to overtime for such travel when she worked calls. Appellant, nevertheless, concedes he signed mileage sheets and reimbursed Mrs. Lewis for vouchers turned in to the cashier for cash payment. Appellant also stated that so far as he knew, whenever Mrs. Lewis remained in the office after hours she stayed for purely personal reasons.

We find no support in the record for Appellant’s contention that his discharge resulted from a conspiracy between defendants to discredit him and thus effect his release. The record shows that prior to the incident in question, Stewart and Dusse, Stewart particularly, were' close friends. They socialized and visited in each other’s homes. Appellant failed utterly to show bias, prejudice or ill will toward him by either of these defendants. Stewart’s testimony makes it clear that he attempted to persuade Appellant to seriously consider Appellant’s position before signing the resignation.

While there appears to have been some ill feeling toward Appellant by Mrs. Lewis the record fails to establish any malice on her part. The record is devoid of threats by her or any intimation that she deliberately sought to ruin Appellant’s career.

We find nothing to support Appellant’s position that he resigned to protect his staff because of his fear of their overreaction to the charges against him. It appears every reasonable effort was made to calm the employees of Appellant’s department and assure them that Appellant resigned for personal reasons and that Appellant had not been discharged for dishonesty.

An action for libel and slander falls within the ambit of LSA-C.C. Article 2315, our general tort law. Our jurisprudence establishes that in an action of this nature proof of the following elements are necessary for recovery: (1) Defamatory words; (2) Publication, meaning communication to one other than the party defamed; (3) Falsity; (4) Malice, actual or implied; and (5) Resulting injury. Rougeau v. Firestone Tire & Rubber Company, 274 So.2d 454 (La.App. 3rd Cir. 1973); Sas Jaworsky v. Padfield, 211 So.2d 122 (La.App. 3rd Cir. 1968); Comment 28 La.L.Rev. 82 (1967).

Under the circumstances of this case we entertain serious doubt concerning whether Mrs. Lewis’ statements regarding her working overtime constituted communication of defamatory remarks. Her testimony is clearly to the effect that she did not expect payment for the overtime worked and for that reason never requested payment. She stated explicitly that she divulged the overtime work when questioned by Personnel incident to her request for a transfer.. The record is also clear that Sears Personnel Department became concerned over the possibility that the action reported by Mrs. Lewis might conceivably subject the company to criminal penalties and for that reason decided to request an explanation of Appellant. The record also shows that the investigation by Fletcher and Stewart convinced these executives overtime pay was due Mrs. Lewis. An agreed amount was reached and Mrs. Lewis was paid.

For the foregoing reasons and also because Appellant frankly admitted having signed mileage sheets filled out by Mrs. Lewis and having approved Mrs. Lewis’ use of improper receipts, we find Appellant has failed to bear the burden of proof of falsity. Our jurisprudence holds that in cases of this nature the preponderance of proof required for making out a plaintiff’s case is greater than in ordinary civil cases. D’Echaux v. D’Echaux, 133 La. 123, 62 So. 597 (1913); Sterkx v. Sterkx, 138 La. 440, 70 So. 428 (1915); Lamartiniere v. Daigrepont, 168 So.2d 370 (La.App. 3rd Cir. 1964).

In this instance Appellant was offered opportunity to establish the falsity of the statements by Mrs. Lewis. Instead of participating in the investigation, Appellant declined to offer any explanation or defense. Instead he made incriminating admissions and voluntarily resigned. Later he attempted to retract his resignation under circumstances which left his superiors little alternative except to discharge him.

Nor do we find proof of the malice alleged by Appellant in this instance. As concerns Mrs. Lewis, Appellant contends she was biased because he declined to recommend her for promotion. Stewart’s prejudice is said to result from Appellant’s refusal of Stewart’s request that Appellant serve part time on the sales floor and Fletcher’s approval of Appellant’s refusal. Dusse’s partiality is said to have been caused by Appellant’s complaint to Dusse’s superior that Dusse was not getting credit department mail out on time. While all these incidents are admitted, it suffices to say the record is devoid of proof of conspiracy on the part of the above named parties.

Moreover, we find that communication by Mrs. Lewis, Stewart, Dusse, Fletcher and Orgera, among themselves, enjoyed a conditional or qualified privilege, the essential elements of which are good faith, an interest to be upheld and a statement limited in scope to this purpose, a proper occasion and publication in the proper manner and to proper parties only. Madison v. Bolton, 234 La. 997, 102 So.2d 433 (1958).

In this context good faith means a statement made with reasonable grounds for believing it to be true. Only when lack of such reasonable grounds is found can it be said the person uttering the statement is actuated by malice or ill will. On grounds of public policy, our law recognizes certain communications as privileged and, as such, they may not serve as grounds for imposing liability for defamation.

Toomer v. Breaux, 146 So.2d 723 (La.App. 3rd Cir. 1962), establishes the rule that a publication enjoys a qualified or conditional privilege if made (a) in good faith; (b) on any subject matter in which the person communicating has an interest or in reference to which he has a duty; and, and (c) to a person having a corresponding interest or duty. This privilege arises from the social necessity of permitting full and unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free communication in such instances by the fear that the communicator will be held liable in damages if the good faith communication later proves to be untrue or inaccurate.

We find it reasonable for Mrs. Lewis to believe Appellant knew she worked off the clock. We also find this information was divulged by her to the Personnel Department during an interview in which Mrs. Lewis requested a transfer. The occasion was one in which she had an interest as well as a duty to communicate. The communication among Stewart, Fletcher, Dusse and Orgera was in good faith, pursuant to their mutual business interest, within the scope of that interest, made in a proper manner, on a fitting occasion and to proper parties. We find all these communications within the qualified and conditional privilege invoked by these defendants. See 60 A.L. R.3rd 1110. The record fails to disclose, except as hereinafter shown, that the accusations made to Appellant were made in the presence of any third person. Revelation of the charges to the personnel in the credit department was not publication by defendants. Appellant voluntarily and at his own request divulged the charges to his staff all of whom testified that prior to such revelation none had any knowledge of the accusations.

Dusse and Stewart acknowledged they discussed the matter with their respective wives. No attempt was made to elicit the scope of such discussion. We find such communication does not constitute slander because we find Appellant has failed to establish either the falsity of the statements or that such communication was accompanied by malice or ill will.

It is elementary that findings of facts by trial courts will not be disturbed on appeal unless found to be manifestly erroneous. Canter v. Koehring Co., 283 So.2d 716 (La.1973). In this instance we were not favored with written reasons by the trial court. However, it is obvious that rejection of Appellant’s demands involved determination of witness credibility which the trial court presumably made in favor of Appel-lees. It appears reasonably certain the trial court accepted the testimony of Appellees and rejected that of Appellant and his witnesses concerning the circumstances under which the accusations were made. We find no error in these determinations.

The judgment is affirmed at Appellant’s costs.

Affirmed.


author: EDWARDS, Judge.

text:
    Roosevelt SHANKLIN v. Winetta Louise SHANKLIN.
    No. 10903.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Wollen J. Falgout, Thibodaux, for plaintiff and appellee.
    C. Alan Lasseigne and Janis Lasseigne, Thibodaux, for defendant and appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

Winetta Louise Shanklin, defendant-appellant, appeals from a judgment of the district court granting appellee a divorce from her on the grounds of adultery, awarding appellant custody of the two minor children, and fixing appellee’s obligation of child support in the amount of $70.00 every two weeks plus the added responsibility for the children’s medical and dental expenses.

Appellant contests on appeal only the issue of the amount of child support awarded, contending that the award was so inadequate as to constitute an abuse of discretion.

In this regard, we note initially the long established legal principle that, “since the award of support is primarily a factual issue, a great deal of discretion is vested in the trial judge in determining the amount that a parent should pay for the support of his children. It is for this reason that the amount set by the trial judge should not be set aside unless the evidence clearly reflects that the trier of fact abused this discretion.” Favrot v. Favrot, 219 So.2d 594, 596 (La.App. 1st Cir. 1968). See also Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir. 1975); Johnson v. Johnson, 293 So.2d 213 (La.App. 3rd Cir. 1974). Jackson v. Jackson, 275 So.2d 456 (La.App. 2nd Cir. 1973).

Mrs. Shanklin itemized her expenses (which we extrapolate where necessary to monthly totals) as follows: $108.00 for the baby’s formula and food; $173.00 for food for herself and the other child; and $35.00 for clothing for herself and the children. This sums to $316.00, excluding an estimated expense for rent of $110.00-$140.00. Since Mrs. Shanklin and the children were living with her mother at the time of the hearing, the trial judge, in his discretion, could have discounted this projected expense. Further, some of the itemizations (food and clothing) included expenses of appellant as well as the children. Since appellant is not entitled to alimony her own expenses are properly disregarded in determining the husband’s obligation of support.

There was a similar paucity of evidence introduced as to Mr. Shanklin’s financial circumstances. At the time of the hearing he had been working for Hudson Engineering Company for some two and one-half months, except for a two week period when he was on duty with the Naval Reserve. One check stub from Hudson Engineering showing a net pay for two weeks of $399.36 was introduced. He regularly makes $60.00 per month as a member of the Reserve. Mr. Shanklin testified that his living expenses totalled $425.00 per month and introduced exhibit D-2 showing monthly note payments of $557.54 and additional outstanding obligations of $991.92.

Considering the quality of evidence, or lack thereof, adduced on the issue of support for the children, we simply are unable to say that there was any abuse of discretion by the trial court in setting the award at $70.00 every two weeks.

For the above reasons, the judgment of the trial court is affirmed. Appellant proceeded in this court in forma pauperis, and therefore is liable only for those costs allowed by law.

AFFIRMED


text:
    Donald Wayne SALEMI et ux. v. ST. PAUL FIRE & MARINE INSURANCE CO. et al. William L. KIRBY, Sr., et ux. v. ST. PAUL FIRE & MARINE INSURANCE CO. et al.
    Nos. 10919, 10918.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearings Denied Dec. 20, 1976.
    Writ Refused Feb. 18, 1977.

      J. H. Percy, Jr., Walker P. Macmurdo, Baton Rouge, for plaintiffs-appellants Donald Wayne Salemi, and others.
    Donald T. W. Phelps and Wm. C. Kaufman, III, Baton Rouge, for defendants-ap-pellees St. Paul Fire and Marine Ins. Co. and others.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

These cases arise out of an accident involving three automobiles which occurred at the intersection of Florida Boulevard and North 19th Street in Baton Rouge, Louisiana on June 23, 1974. Carolyn Kirby, driver, and Jean Salemi, passenger, were proceeding west on Florida in the inside traffic lane. Cecil Button was following the Kirby vehicle in a station wagon. Two collisions occurred at the intersection: first, Ralph Palmer, who was approaching from the south on 19th Street, ran his vehicle into the left front fender of the Kirby vehicle; immediately thereafter, the Button vehicle rear-ended the Kirby vehicle, driving it diagonally across the intersection.

The Kirby and Salemi suits were consolidated for trial. The claims against Ralph Palmer and his insurer were compromised and those defendants were dismissed prior to trial. The claims against Button, individually, were also dismissed, leaving Button’s insurer, St. Paul Fire & Marine Insurance Company, as the sole defendant. The case was tried before a jury, and a verdict was returned in favor of the insurer, the jury finding Button free from negligence. This appeal followed.

Plaintiff-appellants contend that the trial court erred in its instructions to the jury and that the verdict of the jury was manifestly erroneous.

The instruction with which the appellants take issue concerns the applicability of the “sudden emergency” doctrine to the standard of care owed by the driver of a vehicle following another. The instruction proposed was as follows:

“. . . a following motorist is presumed guilty of fault in hitting the rear of a preceding vehicle. The presumption may be overcome by showing the driver of the preceding vehicle has been guilty of negligence in creating some emergency which would excuse the following driver, who used the best judgment under the circumstances.” (emphasis supplied) Hightower v. Dixie Auto Insurance Company, 247 So.2d 912, 917 (La.App. 2nd Cir. 1971).

In his instruction to the jury, the trial judge changed preceding vehicle to other vehicle. Appellant counsel complains that he was prejudiced when he argued to the jury because he had emphasized that, unless the jury could find Mrs. Kirby, the driver of the preceding vehicle, negligent in creating the emergency, the sudden emergency doctrine would not be available to Button.

That the instruction given was less helpful to appellants than the one proposed is very likely; however, the instruction given was a correct statement of the law. See Layfield v. Altazan, 255 So.2d 363 (La.App. 1st Cir. 1971). Clearly, the applicability of the “sudden emergency” doctrine in rear-end collisions is not limited to instances where only the preceding driver contributes to the creation of the emergency situation; it applies whenever the following driver is put in such a situation to the cause of which he has not negligently contributed. The language in Hightower, supra, was correct on the facts of the case since only two vehicles were involved. Where other factors are present, such as in Layfield, supra, and herein, they are relevant and applicable to the determination of fault.

Appellants next maintain that the jury’s finding Button free from negligence was manifestly erroneous. They rely heavily on the trial judge’s statement (in his written reasons for the denial of a new trial) that, in his opinion, Button was negligent in following too closely under the circumstances. However, the trial judge noted also that the jury thought otherwise and refused to grant a new trial.

The jury was charged by the trial judge with the law applicable to following motorists, LSA-R.S. 32:81(A):

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

It was for the jury, and not the judge, to determine whether Button’s actions were reasonable and prudent. The law does not say how many car lengths constitute a reasonable and prudent separation between a preceding and following vehicle. Such depends on the speed of the vehicle and the condition of the highway. Certainly this is a determination that a jury is well able to make.

The record discloses that the speed of the two vehicles was between 20 and 30 m. p. h., the highway was wet from rain, and the distance between the two vehicles was one to two car lengths. We are not prepared to say, as a matter of law, that this constituted a violation of LSA-R.S. 32:81(A).

Lastly, appellants claim error in the refusal of the trial court to allow the jury to see, during deliberation, a written statement Button had given during investigation of the accident. LSA-C.C.P. art. 1794 prohibits jurors from taking any written evidence with them when they retire to deliberate. Considering the fact that Button testified concerning the subject of the statement and considering that the policy underlying the prohibition of Article 1794 is to prevent undue weight being given depositions as against oral testimony, we conclude that the trial court was correct in refusing the jury access to the statement.

For the foregoing reasons, the decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.