text:
    UNITED STAGE EQUIPMENT, INC. v. CHARLES CARTER & COMPANY, INC., et al.
    No. 11151.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      James E. Toups, Jr., Baton Rouge, of counsel, for plaintiff United Stage Equipment, Inc., appellee.
    Walton J. Barnes, George L. Clauer, III, Baton . Rouge, of counsel, for defendant Charles Carter & Co., Inc., appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an action ex contractu brought by United Stage Equipment, Inc., (hereinafter sometimes referred to as United) against Charles Carter & Company, Inc., (hereinafter sometimes referred to as Carter) and Insurance Company of North America for the alleged balance due on a subcontract. Carter filed a reconventional demand against United alleging damages. The Trial Court rendered judgment in favor of plaintiff and against the defendants in soli-do in the sum of $695.00 together with interest and costs. Defendants appealed and plaintiff answered the appeal seeking an increase in the amount of the judgment in its favor.

Carter was the general contractor for the L.S.U. Field House owned by Louisiana State University. United entered into a subcontract with Carter to furnish and install divider curtains which would separate the playing areas in the Field House for a contract price of $33,622.00 to which amount change order 1 added the sum of $215.00 making the total contract amount $33,837.00. Change order 2, which is in dispute, added the sum of $600.00 for expenses which plaintiff claims were unnecessarily caused by Carter. It was stipulated that the full contract price, including change orders 1 and 2, amounted to $34,-437.00 and that Carter made payments totaling $33,142.00, leaving the balance in dispute of $1,295.00. Said sum is made up of $695.00 allegedly due on the balance of the original contract price and $600.00 allegedly due for change order 2.

Carter answered and filed a reconven-tional demand contending that United is liable at the rate of $300.00 a day to plaintiff in reconvention for a 21 day delay amounting to $6,300.00. Carter also claimed attorney fees in the amount of $2,000.00.

The defendants filed an exception of no right or cause of action as well as defending on the basis that United, who was a nonresident corporation, had not complied with Louisiana law requiring a contractor to obtain a license, specifically LSA-R.S. 37:2151 et seq., the violation of which is a misdemeanor. It is defendants’ position that plaintiff is not entitled or allowed to recover in a civil action for any undertaking which amounts to a crime.

In general terms our statute requires that a contractor as defined therein must obtain a license prior to doing business in Louisiana. LSA-R.S. 37:2160. To determine whether this statute is applicable, it is necessary that we first determine whether plaintiff is a contractor.

The Legislature at LSA-R.S. 37:2157A has defined a contractor for the purposes of licensing statute as:

“[A]ny person, firm, partnership, co-partnership, association, corporation or other organization, or any combination thereof, who, at a fixed price, commission, fee, wage or salary of thirty thousand dollars or more, undertakes, attempts, or submits a bid to construct, * * *, or furnishing labor, material or equipment and installing same for any building, * * * where the cost of same is thirty thousand dollars or more; * *

Therefore, we must conclude that the plaintiff herein is a contractor as defined above.

Generally, where the law contains a penalty for a failure to obtain a license it implies a prohibition to collect on the contract entered into or work done. A departure from this general rule is recognized, however, where the requirement of license is intended only as a revenue producing measure rather than as protection for the general public. Considering that the license fee is simply to help defray the cost of issuing the licenses and the administration thereof, LSA-R.S. 37:2156, we do not here find that the statute in question was ever intended as a revenue producing measure. Hence, the plaintiff did not have a license prior to its being awarded the contract in question, and thus it cannot maintain a civil action on the contract for money due.

Though we can find no cases dealing specifically with a non-licensed contractor attempting to either enforce a contract or collect on a quantum meruit basis, we are supported in our conclusion by cases applying similar statutes. See Jary v. Emmett, 234 So.2d 530 (La.App. 3rd Cir. 1970), writ refused 256 La. 374, 236 So.2d 502 (1970) wherein, an out of state architect not licensed in Louisiana was disallowed recovery on a quantum meruit basis, LSA-R.S. 37:141; Ronaldson v. Moss Watkins, Inc., 13 La.App. 350, 127 So. 467 (1st Cir. 1930), where an out of state certified public accountant not licensed in Louisiana was denied recovery, Act 125 of 1908 and Act 136 of 1924, now LSA-R.S. 37:71 et seq.; and see also a review of this subject matter entitled “Business License, Failure to Procure”, 82 A.L.R.2d 1429.

Defendants-appellants also complain that the Trial Court erred in overruling its demand as plaintiff in reconvention for liquidated damages. Carter has been or expects to be assessed damages under the terms of its contract with L.S.U. for the late completion of the contract, but there-is no showing that plaintiff was the cause of the delay. To the contrary, the record shows that plaintiff performed at the time requested to do so and was in no way responsible for Carter’s tardiness.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court in favor of United Stage Equipment, Inc. and against the defendants, Charles Carter & Company, Inc. and Insurance Company of North America in solido in the amount of $695.00 is reversed, and in all other respects, the judgment of the Trial Court is affirmed. Plaintiff is to pay all costs of this appeal.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Claude TRICHE, Jr., et al. v. CITY OF HOUMA et al. Dale THIBODEAUX v. CITY OF HOUMA et al.
    No. 11382.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      Joseph L. Waitz, Houma, for defendant-relator.
    Grady C. Weeks, Houma, and Paul Bati-za, Thibodaux, for plaintiff-respondent.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

Defendants-relators, the City of Houma, and its insurers, Chicago Insurance Company and Interstate Fire and Casualty Company, have applied to this Court for an alternative writ of certiorari, prohibition and/or mandamus from the interlocutory decree of the Trial Judge denying their request for trial by jury in the matter entitled Claude Triche, Jr. and Kenneth Triche versus City of Houma, State Farm Insurance Company and XYZ Insurance Company.

This is a boating accident case wherein plaintiffs filed suit on January 29, 1975. On July 27, 1976, defendants-relators filed their answer and prayed for trial by jury. Trial by jury was ordered and the amount of the bond fixed. Subsequently, plaintiffs filed on August 12, 1976, a motion to strike the request for a jury trial on the grounds that the defendants were not entitled to a jury trial under LSA-R.S. 13:5105.

In written reasons for judgment, the Trial Judge denied the request for a jury trial contending that the language of LSA-R.S. 13:5105 is clear and unambiguous, and this statute did not afford to political subdivisions the opportunity to waive the prohibition of a jury trial in a suit against it.

Relators applied for writs to the Louisiana Supreme Court, which writs were not considered with the notation that “no relief has been applied for in the Court of Appeal which has supervisory jurisdiction of the case.” Relators then filed this application in this Court on January 27, 1977.

In their brief in opposition to this application for writs, plaintiffs-respondents argue basically that relators had an adequate remedy by appeal, but have allowed the appeal time to expire, and thus writs should be denied, citing State of Louisiana v. Signal, 257 La. 560, 242 So.2d 889 (1971), Warren v. Malvina Realty Co., Inc., 178 La. 495, 151 So. 906 (1933), Borah v. Dussel, 153 La. 54, 95 So. 399 (1922), and Cloud v. Bushnell, 168 So.2d 274 (La.App. 3rd Cir. 1964). We find none of these cases controlling. The questions raised were either whether writs would be granted after the statutorily allowed appeal time had run, or whether application for writs suspended the running of the appeal time.

An interlocutory judgment is ap-pealable only if it may cause irreparable injury. LSA-C.C.P. Art. 2083.

Louisiana Courts have in the past held that even though the sustaining of a motion to strike a demand for jury trial is an interlocutory decree, it may cause irreparable injury, and thus is appealable. Zuber v. Lafourche Parish School Board, 325 So.2d 764 (La.App. 1st Cir. 1976), Hernandez v. Sartain, 297 So.2d 740 (La.App. 1st Cir. 1974), Plaisance v. Collins, 234 So.2d 436 (La.App. 1st Cir. 1970) and Southern Baptist Hospital v. Williams, 89 So.2d 769 (La.App.Orl.Cir. 1956), writs denied (1956).

There has, however, been a shift recently from the earlier position of the appellate courts that a denial of a request for a jury trial will always cause irreparable injury, and thus the right to appeal attaches, to a present trend that the mere denial of a jury trial, without more, does not, upon its face, result in irreparable injury such that it warrants a separate appeal, and thus the appropriate remedy is either the application for supervisory writs or an appeal after final judgment. Guidroz v. State Farm Fire and Casualty Co., 334 So.2d 535 (La.App. 1st Cir. 1976) and First National Bank of Commerce, New Orleans v. Miller, 328 So.2d 383 (La.App. 4th Cir. 1976).

We, therefore, now conclude that there can be no right of appeal from the interlocutory decree of the Trial Judge denying the jury trial, absent the showing of irreparable injury, thus no appeal time has run, and this application for writs is timely.

We now come to the question of whether the state or a state agency or political subdivision as defendant can request a jury trial?

The right to a trial by jury is recognized, LSA-C.C.P. Art. 1731, except in those cases where it is specifically denied by law, LSA-C.C.P. Art. 1733.

The litigant’s right to a jury trial is fundamental in character, and every presumption against a waiver, loss or forfeiture thereof will be indulged in by the courts. Champagne v. American Southern Insurance Co., 295 So.2d 437 (La.1974). We know of no reason why a public body should be treated any differently than any other litigant.

The Trial Judge was apparently of the opinion that the legislature expressly intended in LSA-R.S. 13:5105 that neither the private litigant nor the governmental litigant could request a jury trial in a suit against a public body. In support of his conclusion, he reasoned that LSA-R.S. 13:5105 was a simple clear statement and as such not subject to judicial interpretation. In further support, he noted that LSA-R.S. 13:5035 authorizes trial by jury to be demanded in all suits for trespass, for damages or for possession of real property, filed by the state against any person or legal entity, and this statute was in existence when the legislature enacted LSA-R.S. 13:5104 (now 5105).

It must of course be pointed out that LSA-R.S. 13:5035 is in a series of statutes concerned with granting certain suits filed by the state preferential treatment as to trial dates, payment of costs, and other procedural matters. LSA-R.S. 13:5035 when considered with the other related sections does not grant the right to a jury trial to the state in those enumerated cases, but rather simply provides that “should a trial by jury be demanded, a special panel shall be drawn for such purpose in accordance with the presently existing law.” We do not see how LSA-R.S. 13:5035 when read in conjunction with LSA-R.S. 13:5105 justifies the conclusion that a public body defendant is prohibited from requesting a jury trial.

Further, in Callahan v. Town of Bunkie, 287 So.2d 629 (La.App. 3rd Cir. 1973), writ refused 290 So.2d 905 (1974), after a jury verdict against the public body, the governmental defendant as one specification of error complained of the jury trial in violation of the prohibition expressed in LSA-R.S. 13:5105. Our brethren on the Third Circuit said, “though the defendant public body is not required to submit to a jury trial, it can in its own discretion proceed in accordance with a trial by jury, and thereby waive its statutory protection.”

Though the Callahan case does not expressly hold that a public body can request a jury trial when it is the defendant, it does hold that it can waive this exemption from a jury trial.

Earlier in Talley v. Friedman, 255 La. 735, 232 So.2d 495 (1970), the Supreme Court characterized the very same language now found in LSA-R.S. 13:5105 as the right of the state not to have the claim against it tried by a jury, thus implying that it is a privilege which must be exercised so as to prohibit jury trials as against public bodies.

Though this particular issue is res nova in that there are no reported cases dealing with a public body defendant requesting a jury trial, we reason that if the legislature had originally intended that no suit wherein the state, state agency or political subdivision was a defendant could be tried by a jury, or stated another way, that the state, state agency or political subdivision as defendant could not request a jury trial, which we doubt, the legislature has failed to reaffirm that intention after Bunkie and Talley when there was ample time to do so. In particular, the legislature in 1975 enacted Act 434 which amended and reenacted LSA-R.S. 13:5101 et seq. without changing any of the language of LSA-R.S. 13:5105 other than to change its numerical designation from 13:5104 to 13:5105. This failure to reaffirm any supposed intention must lead us to the conclusion that the original as well as present intention of the legislature as expressed in LSA-R.S. 13:5105 is not to deprive, the public body defendant that opportunity for a jury trial if it so desires. We must, therefore, conclude that the Trial Judge was in error in denying defendants-relators’ request for a jury trial.

Therefore, for the above and foregoing reasons, and after considering the petition of relators, the written reasons of the Trial Judge, and the opposition of respondents IT IS HEREBY ORDERED that a peremptory writ of mandamus issue herein, commanding the Honorable Ashby W. Pettigrew, Jr., Judge of the Thirty-Second Judicial District Court for the Parish of Terrebonne, to grant relators herein, the City of Houma, Chicago Insurance Company, and the Interstate Fire and Casualty Company, a trial by jury.

All such costs as are related to this application are assessed against respondents. Assessment of all other costs to await final determination on the merits.

PEREMPTORY WRIT ISSUED.


author: ELLIS, Judge:

text:
    Marilyn Cargle WILSON v. Billy R. WILSON.
    No. 11133.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Charles N. Malone, Baton Rouge, of counsel, for plaintiff-appellant.
    Steve LeBlanc, Baton Rouge, of counsel, for defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

Mrs. Marilyn Cargle Wilson and her husband, Billy R. Wilson, separated on January 2, 1975, and she was granted a separation from bed and board, on the ground of abandonment, on March 7, 1975. In that judgment, Mr. Wilson was ordered to pay $600.00 per month support, and to continue Mrs. Wilson’s coverage under his hospitalization policy.

On April 27,1976, Mrs. Wilson filed a rule for an increase in alimony to $959.00, alleging increased living costs and a salary increase for Mr. Wilson of over $3,000.00 a year. On May 11, 1976, Mr. Wilson, alleging the lapse of more than one year and 60 days since the judgment of separation, sued for a final divorce, and asked that the alimony be reduced to $300.00 per month.

After trial on the merits, judgment was rendered in favor of Mr. Wilson, granting him a divorce. A separate judgment was rendered on the rule, awarding Mrs. Wilson $400.00 per month alimony, from which judgment she has appealed.

Article 160 of the Civil Code provides: “Art. 160. When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
“1. The wife obtains a divorce;
“2. The husband obtains a divorce on the grounds that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
“3. The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person.
“This alimony shall be revoked if it becomes unnecessary and terminates if the wife remarries.”

Alimony under Article 160 has been characterized as a gratuity or pension, limited primarily to food, clothing and shelter. Frederic v. Frederic, 302 So.2d 903 (La.1974). The Supreme Court has also said that “maintenance” under Article 160, “while meaning primarily food, clothing and shelter, does include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses, and the income tax liability generated by the alimony payments made to the former wife.” Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

In the community property settlement, Mrs. Wilson received $7,000.00 in cash, furniture and clothing valued at about $3,000.00 and a 1972 Chevrolet Impala automobile. After paying her attorney, moving to South Carolina and then back to Natchi-toches, selling most of the furniture, and paying other expenses, she had $3,377.73 remaining. This amount was on deposit in a savings account paying five per cent interest. She testified that she was unable to work because of her health. No medical testimony was offered to substantiate or contradict this statement.

At the time of the trial, Mrs. Wilson was living in Natchitoches, Louisiana, in a two-bedroom apartment for which she paid $155.00 per month rent* Her 19 year old daughter was living with her, and being supported by her while attending trade school. Food for both Mrs. Wilson and the daughter came to $160.00 per month.

She testified to gasoline expense of $43.00 per month, automobile insurance of $18.50 per month, and she estimated repairs at $30.00 per month. In addition, she was paying $50.00 per month for four new tires and other repairs, with a balance due of about $250.00.

Her utilities amounted to $45.73 per month and the telephone bill was $10.60. She testified to medical expenses of $31.00 monthly for medication and $70.00 per month for physicians and dentist. She also estimated hospitalization insurance at $35.00 per month. She estimated Federal and State income tax on her alimony at $76.00 per month. These items total $874.83.

Mr. Wilson’s monthly gross salary as a Postal Inspector is $2,429.58. Total payroll deductions for income tax and $182.22 retirement are $685.63, leaving $1,743.95 in available ineome. He listed $180.00 for rent, $165.00 for food and household supplies, $30.00 for clothing, $80.00 for transportation, $33.50 for medical, including his hospitalization insurance premium, $17.50 for utilities, $20.00 for laundry and cleaning, $50.00 for personal and grooming necessities, $22.50 for educational expense, and $69.00 for insurance. He also had a total of $489.52 in payments in debts, some of which were incurred prior to or in connection with the separation.

His total expenses were given as $1,157.02, leaving $586.93 available for alimony payments. He testified that he did not believe he should have to pay that much, as he had no allowance for emergencies or savings.

In ruling on the case, the trial judge said: “I think her claim is inflated, of course. She is asking for over nine hundred dollars a month. Mr. Wilson’s net take home is about seventeen hundred dollars a month; but taking into account all of the factors involved in this ease, and the fact that she does have some assets, which the Court finds are not fully sufficient for her maintenance; taking into account the amount Mr. Wilson can reasonably contribute without being unfair to him or unfair to her, the Court will fix it in the amount of four hundred dollars per month, payable in semimonthly installments of two hundred dollars each on the first and fifteenth day of each month, with the first payment being due and payable on July the 1st, 1976.”

As pointed out above, the record shows that Mrs. Wilson is living in a two-bedroom apartment and most of her living expenses reflect the fact that she is supporting her adult daughter. Mrs. Wilson offered no evidence to substantiate her claim of $70.00 per month for doctors’ and dentists’ bills. The trial judge concluded that she needed $400.00 per month for her maintenance, and although this figure may seem low in the light of the husband’s ability to pay, we do not find an abuse of the broad discretion accorded the trial judge in such matters. There is evidence in the record on which this conclusion might reasonably be based.

Mrs. Wilson further contends that the trial judge erred in taking into account the fact that she had assets in excess of $3,300.00. There is no merit in the contention. The wife is not required to deplete her assets entirely in order to become entitled to alimony. However, the court is required to consider all of the circumstances in determining the wife’s right thereto. Frederic v. Frederic, supra.

Mrs. Wilson also contends that, because Mr. Wilson admits that he has $586.93 available for the payment of alimony, he has judicially admitted his liability to pay that amount. No such admission is shown by the record. All Mr. Wilson did was file a document showing his income and expenses, and the amount which he believed would be available for alimony. He did not stipulate or agree to pay that amount.

The judgment appealed from is therefore affirmed, at Mrs. Wilson’s cost.

AFFIRMED.


author: ELLIS, Judge.

text:
    Edwin S. PATOUT v. R. S. & S., INC., et al.
    No. 11140.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      C. E. Gene Broussard, New Iberia, of counsel, for plaintiff-appellant, Edwin S. Patout.
    Bert K. Robinson, Baton Rouge, of counsel, for defendant-appellee, R. S. & S., Inc.
    James D. Rives, Jr., New Orleans, of counsel, for defendant-appellee, Continental Cars Distributor, Inc.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a suit for rescission of the sale of an automobile because of redhibitory defects, and for damages arising therefrom. Plaintiff is Edwin S. Patout, and the defendants are R. S. & S., Inc. and Continental Cars Distributor, Inc., the seller and distributor, respectively, of the automobile. R. S. & S., Inc. reconvened, alleging and offset or counterclaim for use of the automobile by the plaintiff. It was also stipulated that, if there should be judgment in favor of R. S. & S., Inc. on the main demand, that it would be entitled to $108.44 for an unpaid repair bill.

After trial on the merits, judgment was rendered, dismissing plaintiff’s suit as to both defendants, and giving judgment to R. S. & S., Inc. for $108.44. From that judgment, plaintiff has appealed. R. S. & S., Inc. has answered the appeal, asking for interest from date of judicial demand on the $108.44 which it was awarded.

On June 21, 1974, plaintiff purchased an MGB convertible automobile from R. S. & S., Inc. for a total price of $4,985.00. On the day of the purchase, the alternator pulley shattered, denting the hood slightly. The pulley was replaced immediately. On July 10, 1974, the 1,000 mile checkup was performed, and the dent in the hood repaired.

Plaintiff failed to have the 3,000 mile checkup performed, but did bring the car in for the 6,000 mile checkup on August 26, 1974, at which time regular maintenance was performed, and the exhaust pipe was repaired where it had come loose from the manifold. Plaintiff failed to have the 9,000 mile checkup, but did bring the car in for the 12,000 mile checkup on February 7, 1975, at which time regular maintenance was performed. At that time the car had 11,752 miles showing on its odometer.

On or about February 25, 1975, while plaintiff was driving on the highway, the bearings on the water pump burned out, causing extensive damage to the radiator and fan. R. S. & S., Inc. picked up the car at New Iberia, where plaintiff lived, and towed it back to Baton Rouge, where the damage was repaired, without cost to plaintiff. The fuel pump was also replaced because plaintiff complained that it was not working properly. At that time, the odometer read 12,601 miles.

On April 11, 1975, plaintiff had the fuel pump replaced by Faulk’s Auto Service in New Iberia, when the car had 15,078 miles on it. The new pump was furnished without charge by R. S. & S., Inc. On May 26, 1975, the car had to be towed in by Faulk, who replaced both of its six volt batteries. The car then had 17,115 miles on it.

On June 3, 1975, plaintiff took the car to R. S. & S., Inc. where the fuel pump was again replaced and a new ignition switch was installed. The mileage on the car was 17,593. Plaintiff paid for this service with a check for $108.44 but immediately stopped payment thereon. This suit was filed on June 12, 1975.

The record reflects that no further maintenance or repairs were performed on the vehicle until December 19,1975, when there were 26,127 miles on the car. At that time, Faulk’s Auto Service replaced the exhaust system, did a front end brake job, repaired the charging system and insulated the gas tank filler neck.

On January 5,1976, the car was towed in, another fuel pump was installed by Faulk’s with 26,685 miles on the odometer. On May 26, 1976, a new gas gauge, choke cable and thermostat were installed and the radiator repaired with 32,970 miles on the car. At the time of trial, on June 8,1976, the odometer showed 33,007 miles.

Plaintiff testified that in October, 1975, a Mr. Grisaffi did a general tune-up on the car, and changed the oil. There is no other evidence in the record of regular maintenance being performed after the 12,000 mile checkup.

The only other difficulty testified to by plaintiff was that he had difficulty in starting the car when it was about a month old, and that he had to hit the battery terminals with a wrench to get it to start. He stated that this condition was repaired by R. S. & S., Inc.

In ruling on the case, the trial judge said: “A careful analysis of the evidence demonstrates that except for the damage caused by the alternator pulley and the problem with the exhaust pipe, there were no repairs made to the automobile from the date of its purchase until February 7, 1975, when the car had traveled almost 12,000 miles. During the intervening period, Patout failed to have the car serviced for the 3,000 and 9,000 mile checkups required under the warranty. It appears that the car did suffer with more than the normal incidence of problems following the 12,000 mile checkup, but there is serious question of whether most of the problems developed from a lack of maintenance on the part of Pat-out or due to the improper repairs, as may have been the case with the fuel pump.
“The Dealer performed all of the repairs prior to June 3, 1975, free of charge under the warranty agreement. It appears that the only documented expense incurred by the plaintiff was for the installation of the fuel pump on April 11, 1975, (Exhibit P-1) and the installation of the two new batteries on May 26, 1975, (Exhibit P-2) by Faulk’s Auto Service.
“The Court concludes that the plaintiff has failed to prove that the car was subject to any major vices and defects which would warrant a finding of partial failure of consideration. While there is no doubt a number of problems with the car which could be characterized as “irritating”, the Court is convinced that in no small measure they were due to the failure of the plaintiff to properly service his car.”
Article 2520 of the Civil Code provides: “Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

The record reflects that in the first 12,000 miles of operation, the only work necessary was the replacement of a pulley, repair of a dent in the hood, a repair to the exhaust pipe which had come loose at the manifold and cleaning the battery terminals. During that period of time, from June 21, 1974, until late February, 1975, or eight months, the vehicle was in the shop for repairs for only three days. The car was already out of warranty when the water pump went out on February 26,1975.

Under those circumstances, we agree with the trial judge that plaintiff has failed to prove the existence of redhibitory defects in the vehicle he purchased.

R. S. & S., Inc. has asked for interest on the award of $108.44 made to it in the judgment. The stipulation relative thereto did not provide for interest. Article 1921 of the Code of Civil Procedure provides for interest in judgments only if it is prayed for or provided for by law. R. S. & S., Inc. is therefore not entitled to interest.

The judgment appealed from is affirmed. Plaintiff is to pay all costs of this appeal.

AFFIRMED.


text:
    Mrs. Sonora T. MARSH et al., Plaintiffs-Appellees, v. Edward T. DWYER et al., Defendants-Appellants.
    No. 11147.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      Michael L. Hughes and Stephen P. Dart, St. Francisville, for plaintiffs-appellees.
    Fred C. Jackson, St. Francisville, for defendants-appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a possessory action, coupled with a demand for the value of timber allegedly wrongfully cut from plaintiffs’ property. Plaintiffs are Mrs. Sonora Towles Marsh, Mrs. Alice Ker Barber, Mrs. Sarah Gunby Kinne and Miss Suzanne LeSassier, who allege themselves to be in possession as owners of 475 acres of land in West Felicia-na Parish, known as Ouida Plantation. Defendants are Edward T. Dwyer, Edward John Dwyer and Morris Rosenthal Dwyer, who allege that they are in possession as owners of the 20.97 acre parcel from which the timber was cut, being part of the “Baker Tract”.

After trial on the merits, judgment was rendered, finding plaintiffs to be in possession of the disputed tract, and awarding them $525.00 as the value of the timber cut. From that judgment, defendants have appealed. Plaintiffs have answered the appeal, asking for an increase in the monetary damages awarded.

Ouida Plantation contains about 475 acres and is described as being bounded on the south, in part, by property of Dwyer. The “Baker Tract” contains about 300 acres, and is described as being bounded on the north, in part, by Ouida Plantation. There is no specific description of the common boundary between the properties. However, from the testimony and the maps filed in the record, we learn that the disputed tract lies in Section 75, Township 1 South, Range 4 West, and is bounded on the North by the section line between Sections 75 and 74 on the West by Baker Creek and on the South by an irregular fence line running in a northeasterly direction from Baker Creek.

Plaintiffs claim that the property line should be along the irregular fence line, and defendants allege that the section line is the property line.

According to testimony in the record, Ouida Plantation was formerly owned by Roberta and Sarah Towles and Kate LeSas-sier, who were sisters. In 1921, Robert Stewart, their brother-in-law, who was managing the plantation, had a survey of the South line made by James Kilbourne, who located the line in the approximate location shown by the latest survey. Mr. Stewart then destroyed an old fence which stood on the section line and built a new fence, which stands today, on the Kilbourne line. Miss Roberta Towles ran cattle in the disputed area for many years thereafter.

In 1948, the Dwyer family had a survey of the Baker Tract made by W. B. Smith, Civil Engineer, which showed the property line to be the section line. However, in April, 1955, Mr. Smith amended his survey to show the disputed tract as being claimed by Ouida Plantation.

Shortly after the 1948 survey, the Dwyers sold some of the timber from the disputed tract, and in about 1966 sold some more. When a third sale of timber on the tract was made in November, 1972, this suit resulted. The defendants have exercised no possession over the tract other than the three timber cuts.

On July 1, 1971, the plaintiffs leased Oui-da Plantation to Jessie Commena, for the purpose of “conducting animal husbandry operations” thereon. On July 1, 1974, a second lease for the same purposes was entered into, which was still in effect as of the time of the trial. Mr. Commena testified that he was familiar with the fences bounding Ouida Plantation, and that from the inception of the first lease, he had cattle grazing over the whole property. Edward T. Dwyer testified that Mr. Commena’s cattle had been grazing in the disputed parcel.

The trial judge found that plaintiffs, through Mr. Commena, had been in possession of Ouida Plantation, and the disputed parcel, for more than one year prior to the November, 1972, timber cutting. He further found plaintiffs to be entitled to $525.00 in damages for timber cut.

The following provisions of the Code of Civil Procedure are applicable.

“Art. 3655. The possessory action is one brought by the possessor of immovable property or of a real right to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.”
“Art. 3658. To maintain the possessory action the possessor must allege and prove that:
“(1) He had possession of the immovable property or real right at the time the disturbance occurred;
“(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
“(3) The disturbance was one in fact or in law, as defined in Article 3659; and
“(4) The possessory action was instituted within a year of the disturbance.” “Art. 3662. A judgment rendered for the plaintiff in a possessory action shall:
“(1) Recognize his right to the possession of the immovable property or real right, and restore him to possession thereof if he has been evicted, or maintain him in possession thereof if the disturbance has not been an eviction;
“(2) Order the defendant to assert his adverse claim of ownership of the immovable property or real right in a petitory action to be filed within a delay to be fixed by the court not to exceed sixty days after the date the judgment becomes executory, or be precluded thereafter from asserting the ownership thereof, if the plaintiff has prayed for such relief; and
“(3) Award him the damages to which he is entitled and which he has prayed for.
“A suspensive appeal from the judgment rendered in a possessory action may be taken within the delay provided in Article 2123, and a devolutive appeal may be taken from such judgment only within thirty days of the applicable date provided in Article 2087(l)-(3).”

We find that plaintiffs have met the burden imposed on them by Article 3658, supra. They have shown that the disputed tract is included within the fence surrounding Ouida Plantation. They have shown possession by the grazing of cattle thereon by their lessee, Mr. Commena, beginning in July, 1971. They have shown a disturbance of their possession, by the cutting of timber on the disputed tract, by one acting for the defendants, in November, 1972. This action was instituted within one year of the disturbance. See Kilchrist v. Conrad, 191 So.2d 705 (La.App. 3 Cir. 1966).

Since plaintiffs are legally in possession of the disputed tract, they are entitled to damages for the cutting of timber thereon. Article 3662, Code of Civil Procedure, supra; Gillan v. Jones, 157 So.2d 598 (La.App. 2 Cir. 1963). The trial judge found that “some 15,000 feet of stumpage were proven to have been cut during this November, 1972 cutting at a price to the cutter (Mr. Chris Metz) of $35.00 a thousand (feet). This would total $525.00.” He found no bad faith on the part of the defendants.

Defendants contend that plaintiffs failed to prove their damages with the certainty required by law. Plaintiffs claim that the court should have found defendants in bad faith, and awarded the manufactured value of the 52,800 board feet of timber which they claimed were cut.

Chris Metz, who cut the timber, testified that he estimated he had cut 17,000 to 18,-000 feet of lumber on the disputed tract during a two-day period, and that he was paid $35.00 per thousand board feet at the mill. He testified that he was making a guess at the amount cut, and stated that he “could probably look it up and tell you exactly.”

Robert Burkhalter testified as an expert for plaintiffs, based on two years study in forest technology at a junior college, and three years employment with a forest management company. He had made a stump count on the disputed tract, and estimated that 3,800 feet of pine and 49,000 feet of hardwood had been cut. An objection was made to Mr. Burkhalter’s qualification to testify as an expert, which the trial court properly referred to the weight to be given the testimony.

Apparently, the trial judge elected to disregard the testimony of Mr. Burkhalter, and to reduce Mr. Metz’s estimate somewhat because of its vague nature. We find no manifest error in his conclusion in this respect.

Since the record makes it clear that each side in this case considers themselves to be the owners of the disputed tract, and that the dispute has been going on for years without being resolved, we think the trial court properly found that the defendants were not in bad faith in cutting timber thereon.

The judgment appealed from is therefore affirmed, at defendants’ cost.

AFFIRMED.


text:
    Charles H. FARRIER v. Percy GUILLORY and Christine Fazzio Guillory.
    No. 11152.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      Gerard E. Kiefer, Baton Rouge, for Charles H. Farrier.
    Edwin A. Smith, Jr., Baton Rouge, for Percy Guillory and Christine Fazzio Guillo-ry-
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

Plaintiff Charles H. Farrier, a realtor, brings this suit against Percy Guillory and Christine Fazzio Guillory for $15,000.00, allegedly due on a promissory note, or alternatively, due under a promise to pay that amount. After trial on the merits, judgment was rendered in favor of plaintiff and defendants have appealed.

With Mr. Farrier acting as realtor, Perco, Inc., a corporation wholly owned by defendants, agreed to sell certain property to Ro-sal Investment Corporation.

For tax reasons, Mr. and Mrs. Guillory decided to liquidate Perco, Inc., and proceedings to do so were instituted on October 8, 1974, with Mr. Guillory appointed to act as liquidator.

The original agreement to purchase expired on October 14, 1974. Following a conference with defendants’ attorney and tax advisor, and in accordance with their instructions, Mr. Farrier prepared a second agreement to purchase, showing Mr. and Mrs. Guillory as the owners and sellers of the property. This agreement was executed by Rosal on October 18, 1974, and accepted by the Guillorys, individually, on the same date, in the following terms:

“I/We accept the above offer and agree to pay Charles H. Farrier, Realtor, for professional services rendered the sum of $20,000.00, $5,000 at act of sale, Bal. 90 days . . ..”

At the time of the execution of the above agreement, and thereafter, the owner of the property to be sold was Perco, Inc., in Liquidation. On November 14, 1974, an act of sale from Perco, Inc., in Liquidation, to Rosal Investment Corporation was executed. Mr. Farrier was paid -the first $5,000.00 of his commission at that time.

In this suit for the $15,000.00 balance due on his commission, Mr. Farrier alleges that the agreement to pay his commission is in the form of a promissory note, and alternatively, if not a note, constitutes a binding obligation to pay.

The defendants assert that they, as individuals, were never the owners of the property sold to Rosal, and that they never intended to bind themselves personally for the payment of the commission.

The trial judge found that the agreement to pay the commission was not in the form of a promissory note, but held that, in executing it, the defendants had made a stipulation pour autrui, by virtue of which they agreed to pay the debt of Perco, Inc., and that plaintiff was therefore entitled to recover.

In this court, defendants contest the correctness of the latter determination. In addition, they have filed peremptory exceptions of no cause and no right of action, and non-joinder of an indispensable party, Per-eo, Inc., in Liquidation.

We find that the record establishes that, at the time of the execution of the second agreement to purchase by the defendants, the plaintiff reasonably believed that they were, or soon would be, the legal owners of the property covered thereby. He had drawn the agreement in accordance with the instructions of the Guillorys’ legal and tax advisors, and it was signed by the defendants without objection on their part.

It has been held that “There is nothing wrong or illegal in promising to sell the property of another. The promissor may be a confidential agent of the owner or he may anticipate the acquisition of the property.” Codifer v. Holdsworth, 7 La.App. 395 (1 Cir. 1928); Richardson v. Charles Kirsch & Co., 189 So. 146 (Orl.La.App.1939); Wendel v. Dixon Real Estate Company, 232 So.2d 791 (La.App. 4 Cir. 1970). In such a case, if the promissor cannot deliver, he can be held to the penalty provisions of the contract, even though the enforcement of specific performance may be impossible. Wendel v. Dixon Real Estate Company, supra.

It is also clear that the right of the real estate agent to his commission is generally not dependent upon the validity of the title of the seller, or upon the eventual passing of the act of sale, and his commission is earned when the agreement to purchase is executed, although it is generally payable later. See Leaman v. Rauschkolb, 199 So. 663, on rehearing 1 So.2d 338 (Orl.La.App.1941); Doll v. Russo, 7 So.2d 406 (Orl.La.App.1942).

We can see no reason why the same reasoning should not apply to this fact situation, and the signers of the agreement be held personally liable for the commission of the agent, particularly in view of the fact that the sale was actually executed, and Rosal received what it had bargained for in the agreement to purchase.

In view of the foregoing conclusion, we find that the peremptory exceptions filed in this court by defendants are without merit.

The judgment appealed from is therefore affirmed, at defendants’ cost.

AFFIRMED.


text:
    MASTER BUILDERS OF SLIDELL, INC., Plaintiff-Appellee, v. Cecil B. ADAMS, Defendant-Appellant.
    No. 11223.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      Ronald W. Guth, Slidell, for plaintiff-ap-pellee.
    Thomas S. Loop, Metairie, for defendant-appellant, Adams.
    David E. Cooley, Jr., James J. Whitten-burg, Slidell, for defendant-third party ap-pellee, South Sav. and Loan Ass’n.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

Defendant Cecil B. Adams filed a third party petition herein impleading South Savings and Loan Association as a third party defendant, praying for indemnification if he be cast in the main demand. South moved for summary judgment, which was granted, and plaintiff’s third party petition was dismissed by judgment signed on May 28, 1976. Notice of judgment was mailed on June 1, 1976. On July 14, 1976, Mr. Adams was granted a devolutive appeal returnable on September 14, 1976, conditioned on his furnishing bond in the amount of $750.00. This bond was filed on September 10, 1976. We issued, ex proprio motu, a rule to show cause why the appeal should not be dismissed for failure to file the appeal bond timely.

In his brief, Mr. Adams contends that his failure to file the bond prior to the expiration of the legal delays provided is excused by the failure of the Clerk of the trial court to render a bill for. the costs of the appeal.

Article 2087 of the Code of Civil Procedure requires a devolutive appeal be taken and the security furnished within 90 days of the expiration of the delay for applying for a new trial. . That delay, under Article 1974 of the Code of Civil Procedure, is seven days, exclusive of legal holidays, commencing on the day after the clerk has mailed the notice of judgment required by Article 1913 of the Code of Civil Procedure.

The last day on which the bond could be timely filed in this case was September 8, 1976. The bond filed on September 10,1976, was therefore too late, and we are without jurisdiction to entertain this appeal.

Mr. Adams’ argument that he is somehow excused from timely filing his appeal bond because of the alleged failure of the clerk of the trial court to render a bill for the costs of the appeal is without merit. There is no connection between the filing of the bond and payment of costs. Articles 2124 and 2126, Code of Civil Procedure. R.S. 13:4445, 4453.

The appeal is therefore dismissed for lack of jurisdiction, at appellant’s cost.

Appeal dismissed.


author: CHIASSON, Judge.

text:
    BUDGET FINANCE OF BATON ROUGE, INC., Plaintiff-Appellee, v. Sandra G. WALKER and Isaac Walker, Defendants-Appellants.
    No. 11130.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      John F. McKay, Baton Rouge, for plaintiff-appellee.
    Etta Kay Hearn, Baton Rouge, for defendants-appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of Budget Finance of Baton Rouge, Inc., plaintiff-appellee, and against Isaac Walker, defendant-appellant, denying appellant a preliminary injunction enjoining the appellee from seizing any of appellant’s property or executing a judgment rendered on April 15, 1976, against appellant and in favor of appellee.

On February 5,1976, appellee filed a petition asserting that the appellant and Sandra Gale Walker were indebted to the ap-pellee, jointly and in solido, in the amount of $1,349.82, plus interest and attorney’s fees. Personal service was purportedly made on the appellant on February 18,1976 by Deputy Albert Blache. On March 9, 1976, the appellee took a preliminary default against the appellant. This default was confirmed on April 15, 1976, and judgment rendered against the appellant for $1,349.82, plus interest and attorney’s fees. The appellee on June 2,1976, filed a Motion to Examine a Judgment Debtor. The District Court ordered the appellant to appear on June 24,1976 for examination under this rule.

A Petition for Nullity of Judgment, Application for Stay and Order was filed on June 18, 1976, by the appellant alleging that the appellant had not been served in the original suit and asking the District Court to stay the examination of the appellant as a judgment debtor. The District Court on June 23, 1976, refused to stay the examination of the appellant.

On June 29, 1976, the appellant filed an Amended and Supplemental Petition Requesting Injunctive Relief and obtained a temporary restraining order preventing the appellee from executing on its judgment of April 15, 1976.

A hearing was held on July 12, 1976, to determine if a preliminary injunction to the same effect as the temporary restraining order should issue. The District Court on August 5, 1976, for written reasons assigned on July 16, 1976, denied appellant’s request for the preliminary injunction. Thereafter, because no effective suspensive appeal had been taken, the appellee had property belonging to the appellant seized.

The appellee and appellant on August 31, 1976, filed a Motion and Order to Satisfy Judgment and Dissolve Seizure. The appellant, while reserving his rights in his action for nullity, agreed to satisfy the April 15, 1976 judgment in return for release of the seized property.

The judgment of the District Court appealed from is a judgment denying a preliminary injunction, it is not a judgment on the merits nor can it serve as one.

The satisfaction of the judgment by the appellant and the release of the seized property by the appellee makes the question before this Court moot. Therefore, this devolutive appeal is dismissed and the case is remanded to the District Court for further proceedings. Cost of this appeal to be paid by the appellant.

APPEAL DISMISSED AND CASE REMANDED.


text:
    Beverly J. COHRS v. James C. MEADOWS d/b/a Meadows Lumber Company and United States Fidelity and Guaranty Company.
    No. 11141.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Garic K. Barranger, Covington, for plaintiff and appellee.
    Michael J. Paduda, Jr., John N. Gallaspy, Bogalusa, for defendants and appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of Beverly J. Cohrs, plaintiff-appellee, and against James C. Meadows and United States Fidelity and Guaranty Company, defendants-appellants, awarding the appellee workmen’s compensation benefits for permanent disability and medical expenses. Appellee did not appeal and did not file an answer to the appeal taken.

The facts of this case as stated by the District Court are:

“The plaintiff was employed along with her husband on defendant’s horse farm in St. Tammany Parish. On October 10, 1973, she suffered an insect sting and required out-patient treatment for hyper-reaction to the stinging insect. Approximately seven days later she was again stung while working on the farm. She again suffered a reaction and called Dr. Mitchell who told her to come to his office the next day. When she awoke the next morning she collapsed and was rushed to the hospital where she remained for eight days. She was diagnosed as having suffered a delayed hypersensitivity reaction to a stinging insect bite. She is presently undergoing desensitization treatments, and has been advised to avoid as much as possible the risk of future stings which eliminates her from doing almost any work on the outside.
“At the time she was stung Mrs. Cohrs was working as a groom for the defendant. In her job she was generally to handle and groom horses as well as do other necessary work on the horse farm where her husband was employed as a trainer. She had held this type employment with five other horse farms prior to her sting. She now lives on another horse farm with her husband but does no outside work.”

Based on these facts the District Court held that the appellee had suffered a com-pensable accident and was permanently disabled within the meaning of the workmen’s compensation law. The Court awarded compensation at the rate of $32.50 per week for 500 weeks, $1,502.00 for medical expenses incurred to date and future medical expenses as provided by law.

The errors specified by the appellants are:

“1. That the Trial Court erred in finding the plaintiff had a compensable accident and was entitled to benefits under the Workmen’s Compensation act, since plaintiff did not prove her case by a preponderance of the evidence.
“2. That the Trial Court erred in concluding that plaintiff is totally and permanently disabled. More particularly, this is error in view of the following:
a. Even if she is disabled to do whatever vague activities were expected of her (and the proof is very scant as to what she did) she had no craft or specialty, and her own testimony confirms the many jobs that are available to her, away from and completely removed from a farm.
“3. That the Trial Court erred in allowing plaintiff five hundred weeks of compensation when plaintiff sued for weekly benefits ‘for a period not to exceed four hundred weeks.’ ”
R.S. 23:1031 provides in part:
“If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.”

Meadows testified that he hired the appellee and her husband to run his farm. The appellee and her husband both testified that she received the second sting while working on the farm. Where there is evidence before the trier of fact which furnishes a reasonable base for the Court’s finding, an Appellate Court will not disturb this finding in the absence of manifest error. The District Court’s finding that the appellee suffered a compensable injury was not manifestly erroneous.

At the time of her injury, the appellee was employed as a groom, assisting her husband in the care of Meadows’ thoroughbred horses. The record indicates that she was a skilled worker with considerable experience in caring for thoroughbred horses. Because of her reaction to the bee sting, she can no longer perform this or any other work which requires outdoor activity.

A skilled worker is permanently and totally disabled when his injuries prevent him from performing work of the same or a similar nature to the work he is accustomed to perform. Castile v. H. E. Wiese, Inc., La.App., 231 So.2d 406 (1st Cir., 1970). By this test, the appellee is permanently disabled.

Code of Civil Procedure Article 862 provides:

“Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.”

The appellee is entitled to workmen’s compensation benefits for permanent total disability. The appellee’s injury occurred in October, 1973. Under Act 25, Ex.Sess. of 1968, workmen’s compensation benefits for permanent total disability are due during the period of disability up to a maximum of 500 weeks. The appellee’s recovery for her disability is not limited to 400 weeks by her pleadings.

For the above reasons, the judgment of the District Court is affirmed. Cost to be paid by appellants.

AFFIRMED.


author: PONDER, Judge.

text:
    Malcolm Leo EDMONSTON v. Donald A. COOK and Linda Barr Cook.
    No. 11158.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Miriam T. Attaya, Gonzales, for plaintiff and appellee.
    Ralph Tureau, Gonzales, for defendants and appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a motion to dissolve a preliminary injunction against fencing a portion of a street and also for damages. This court, ex proprio motu, has noted that the appeal bond was not timely filed, and we therefore lack jurisdiction to consider this appeal.

On September 13, 1974, plaintiff filed a rule to show cause why defendants should not be enjoined from fencing in a portion of a street. A judgment ordering the preliminary injunction was signed on October 16, 1974. On June 30, 1975, defendants filed a motion to dissolve this preliminary injunction and for damages. The matter was heard by the District Court on August 20, 1975, and the judgment denying the motion to dissolve the preliminary injunction was signed on January 7, 1976.

The district judge signed the order for appeal on February 3, 1976. The appeal bond was executed by appellants on February 6, 1976, but was not filed until March 17.

LSA-C.C.P. Article 3612 states in part: “An appeal from an order of judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.”

Pretermitting the question of whether the order for appeal was timely filed, it is obvious that the appeal bond was not. Since the bond was not filed until more than two months after the judgment was signed, appeal court jurisdiction has never attached. See LSA-C.C.P. Article 2088.

This appeal is therefore dismissed at the appellants’ cost.

APPEAL DISMISSED.


text:
    SEA TANG FISHERIES, INC. v. DUPRE BROTHERS CONSTRUCTION COMPANY, INC.
    No. 11161.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Gerald F. Lofaso, Houma, for plaintiff and appellee.
    Laurence E. Best, Houma, for defendant and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for damages caused by alleged defects in the construction of a bulkhead. The defendant appealed from a judgment awarding the full amount demanded.

The issues before this court are the sufficiency of proof, the lower court’s failure to find mutual mistake in confecting the contract and the amount of the award.

We affirm.

Plaintiff, who is in the seafood business, entered into an oral building contract with defendant for the construction and backfill-ing of a bulkhead. The backfilling was being done by using mud from the adjacent bayou, an operation that might require several months because considerable time for drying and compaction was required between installments of backfilling.

After the backfill operation was partially completed, the parties fell into disagreement. Plaintiff insisted that the backfill-ing be completed promptly, because the area was needed shortly for business operations. Defendant replied that it was not possible, because of the time required for drying and compaction.

Plaintiff then paid defendant the full amount of the contract and engaged someone else to do the backfilling with dry dirt. Shortly after this was commenced, the bulkhead began to give way. Plaintiff thereupon made demand on defendant to correct the work. When defendant did not respond satisfactorily, plaintiff contracted with another company, which corrected the bulkhead. The backfilling was then done. Plaintiff filed suit for the cost of correction and of the backfilling.

Plaintiff contends that the parties understood the construction and backfilling of the bulkhead was to be completed expeditiously, due to the seasonal nature of plaintiff’s business. Defendant asserts the understanding was that the backfilling would take several months to complete.

The trial court found that the parties understood the property would be needed by plaintiff as soon as possible, and therefore the backfill operation would have to be completed quickly. There is ample evidence to support this finding. Mr. Melvin Benoit, President of Sea Tang, testified that Dupre Brothers was well aware that plaintiff was in the shrimp business; and that they discussed the necessity of completing the project before the shrimp season began so that a freezer could be built on the property. While there is testimony to the contrary, we can not say that the lower court committed manifest error in accepting plaintiff’s version. Billiot v. Bourg, La., 338 So.2d 1148 (1976); Canter v. Koehring, La., 283 So.2d 716 (1973).

The trial judge also found that the bulkhead was not constructed in a manner that would permit a continuous backfilling operation. This finding was based on a reasonable evaluation of credibility.

Civil Code Article 2769 reads as follows: “If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

It is implicit in every building contract that the work of the builder be performed in a good workmanlike manner, free from defects in both material and workmanship. Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir. 1975). The owner seeking to recover from the contractor must prove both the existence and nature of the defects due to faulty workmanship or materials and the cost of repairs. Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2nd Cir. 1974).

On the basis of the understanding between the parties, as found by the trial court, the bulkhead was defective because it was unable to withstand the backfilling operations even with dry materials.

Defendant claims the trial court erred in failing to apply the law of mutual mistake on the basis there was a misunderstanding as to when the work was to be completed. Mutual error by the parties, when proved, is a ground for avoiding a contract. However, the trial court specifically found there was no misunderstanding. This finding of fact, since it is supported by some evidence in the record, is not manifestly erroneous.

The evidence supports the award of damages as being the true cost of repairing the defects. The exhibits and the testimony show that plaintiff was billed for and paid a total of $9,768.23 for the repairs and the backfilling.

Defendant contends in its brief that plaintiff failed to minimize the cost of repair. Less expensive repair methods were not proved to the satisfaction of the lower court. We find no manifest error. The judgment for the full amount of the repairs was therefore proper.

The judgment of the trial court is affirmed; defendant is cast with all costs.

AFFIRMED.


text:
    Emily SMITH et al. v. M. B. GAUTREAU et al.
    No. 11326.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Victor L. Marcello, Donaldsonville, Donald T, W. Phelps, Baton Rouge, for appellants.
    William J. Jefferson, New Orleans, for appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This matter is before us on a motion by defendants to dismiss plaintiffs’ appeal on the basis that the judgment is interlocutory and non-appealable. Plaintiffs opposed the motion to dismiss, contending that the judgment of the lower court was final, or alternatively, an interlocutory judgment causing irreparable injury.

Plaintiff filed suit on September 23,1976, against defendants Gautreau, Oubre and Alexander, in their capacity as officers of the Ascension Parish School System and Donaldsonville High School. In the petition plaintiffs asked for damages for wrongful expulsion from school and for injuries allegedly caused by defendants and by police officers called by defendants. On November 3,1976, defendants filed a rule to strike certain allegations of the petition as being immaterial and impertinent. On December 13, 1976, the trial judge ordered that certain paragraphs of plaintiffs’ petition be stricken.

A judgment sustaining a motion to strike is clearly interlocutory. Matte v. Continental Casualty Company, 185 So.2d 842 (La.App. 3rd Cir. 1966). An appeal from such a judgment does not lie unless it is of such a nature as to cause irreparable injury. LSA-C.C.P. Article 2083.

We believe this judgment may clearly cause irreparable injury and is therefore appealable. If the allegations of the petition are stricken, then plaintiffs can not introduce any evidence as to the injuries suffered at the hands of the police officers after leaving the school grounds. If this court were to decide on appeal, after a final judgment in the trial court, that the motion to strike was improvidently granted, the case would have to be remanded to the district court to allow the taking of evidence on this question.

We believe if the interlocutory judgment of the lower court is improper, it will cause irreparable injury to the plaintiffs. The motion to dismiss appeal is therefore denied at defendants’ cost.

MOTION DISMISSED.


author: LANDRY, Judge.

text:
    Charles GRASSO v. Larry J. HEBERT et al.
    No. 11087.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Waitz & Downer by Laurence E. Best, Joseph L. Waitz, Houma, for plaintiff and appellee.
    Robert D. Morvant, Thibodaux, for defendants and appellants.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

Conceding liability, defendants appeal complaining only of the alleged excessiveness of an award of $20,000.00 to plaintiff as general damages for neck and low back injuries sustained in a rear end automobile collision. Plaintiff has answered the appeal seeking an increase in the damages awarded. We affirm.

Subject accident occurred October 24, 1974. Defendant, Hebert, driving a Ford automobile belonging to his employer, Low Lands Construction Company, and insured by United States Fidelity and Guaranty Company, ran into the rear of plaintiff’s vehicle which had slowed down because of traffic conditions ahead. Neither vehicle was seriously damaged. Both automobiles were driven from the accident scene by their respective drivers.

Plaintiff was 42 years of age at the time of the accident. He was, and still is, part owner and manager of a cigarette sales and distribution business. As manager, plaintiff supervised a staff of about two or three employees whom plaintiff assisted by stamping cigarettes, moving and loading cases of cigarettes and rendering other similar assistance when and if necessary. Plaintiff also acted as part time salesman in which capacity he regularly ran a route each Monday, Wednesday and Thursday. As salesman, plaintiff spent about one hour on the road on Monday and approximately two to four hours each Wednesday and Thursday.

The accident occurred shortly after plaintiff began one of his Thursday rounds. Immediately following the accident, plaintiff complained only of a sore nose and slight back pain. He left the scene in his car, finished his day’s work and on returning home that evening he experienced stiffness in his neck and low back. Nevertheless, plaintiff continued work as usual until 11 days later when, on November 4, 1974, he consulted his family physician, Dr. Clark Collins, General Practitioner.

Dr. Collins noted plaintiff’s complaints of neck pains. He found cervical muscle spasm and prescribed a muscle relaxant and pain reliever. Plaintiff made no complaint of back pain, so far as Dr. Collins’ records show. On November 12, 1974, plaintiff returned to Dr. Collins with essentially the same complaint. X-rays taken on this occasion proved negative. Dr. Collins saw plaintiff again on November 26, December 10, and December 24, 1974, on which latter occasion plaintiff complained of ringing in the ears. On January 21, 1974, plaintiff returned to Dr. Collins complaining of pain in the low back (the sacroiliac area) and also pain in the neck. Because of the back pain, Dr. Collins referred plaintiff to an orthopaedic surgeon. On February 25, 1975, plaintiff again consulted Dr. Collins and reported that plaintiff was taking therapy recommended by the orthopaedist whom Collins recommended. On this same occasion Dr. Collins noted that plaintiff was wearing a back brace or some sort of corset. Plaintiff again consulted Dr. Collins on April 1, 1975, complaining of back pain two or three days prior to this visit when the weather turned cold but plaintiff had no complaint of pain on the day of this visit. On November 18, 1975, Dr. Collins saw plaintiff for the last time concerning plaintiff’s back problem. On this occasion plaintiff complained of back pain during cold weather. Dr. Collins prescribed Tylenol for pain. Plaintiff was never hospitalized or placed in traction. Dr. Collins was of the view that any residual effects of plaintiff’s injuries could best be evaluated by an or-thopaedist.

Dr. Pete H. Rhymes, Orthopaedic Surgeon, saw plaintiff on January 21, 1975, pursuant to referral by Dr. Collins. Plaintiff complained of neck and back pain since the date of the accident. Based on x-rays taken and furnished by Dr. Collins, Dr. Rhymes found questionable spondylolisthe-sis at L-5, the lowest movable back vertebra, and minor degenerative arthritis at L-3 and L-4. Standard testing disclosed that plaintiff had normal range of motion of the back, hips and legs. Dr. Rhymes diagnosed plaintiff’s condition as lumbo-sacral strain. He prescribed a series of exercises and recommended that plaintiff lose weight. Plaintiff was advised to wear a supportive corset but was given no medication by Dr. Rhymes, who felt plaintiff should be fully recovered in two or three weeks. Dr. Rhymes again saw plaintiff on February 18, 1975, on which date plaintiff was discharged but told to return if the pain persisted. Dr. Rhymes has not seen plaintiff since. Dr. Rhymes felt that plaintiff had no residual disability as of the date of plaintiff’s last visit. He was also of the view that plaintiff’s spondylolisthesis antedated the accident. He explained that the condition was developmental, meaning it existed from early youth. He also noted that the condition is a defect in bone structure which results in a forward displacement of one vertebra over another, which places a strain upon back muscles which maintain the body erect. Dr. Rhymes acknowledged that this condition can be and usually is aggravated by trauma although it can also become symptomatic from simple ordinary movement. He also acknowledged that when this condition is aggravated by trauma, the patient may have chronic discomfort related to the aggravation or activation. In his deposition taken April 8, 1976, Dr. Rhymes conceded that if plaintiff continued to have back pain since the date of plaintiff’s last visit, he would have to assume that plaintiff’s condition was permanent.

Plaintiff testified he had no back problem prior to the accident. Since the accident he has had pain which, though not continuous, is brought about and aggravated by weather changes and the performance of such routine activity as sitting for a prolonged period, or driving his automobile for an hour or more. He also feels pain upon lifting or exertion. He is still taking medication for pain and continues to wear the corset prescribed by Dr. Rhymes, but concedes he does not wear the corset constantly. He stated he is unable to do many things he could do without difficulty prior to the accident.

Dr. George G. Brown, Jr., Orthopaedic Surgeon, saw plaintiff on February 12, 1976, for evaluation, pursuant to referral by plaintiff’s attorney. He confirmed the diagnosis of developmental spondylolisthesis at L-5. He found that plaintiff had full range of back motion but that plaintiff showed evidence of pain and tenderness in the affected area. Plaintiff made no complaint of neck pain. Plaintiff related that plaintiff’s back pain has persisted and recurs intermittently when plaintiff drives, sits or stands for any appreciable period of time. Dr. Brown also saw plaintiff on March 12, and April 23, 1976, and on each occasion found plaintiff about the same. He stated that plaintiff had a bad back from early youth which condition had been rendered symptomatic by the accident. He acknowledged that plaintiff is physically capable of doing anything plaintiff could do before the accident, but should not because, if plaintiff does, plaintiff will have problems. Dr. Brown explained that plaintiff can experience pain from merely sitting or engaging in any routine activity for an extended period of time. He estimated plaintiff’s percentage of disability at roughly 30%, one half of which is due to the spondylolisthesis and the remaining half or about 15% is due to the spondylolisthesis having been made symptomatic by the accident. He recommended that plaintiff continue to wear the back brace indefinitely.

Appellate review of an award for general damages, especially for personal injuries, is limited to determining whether the trial court or jury abused its discretion, and the adequacy or inadequacy of such an award is determined on the basis of the facts peculiar to each case. Such an award is not to be disturbed on appeal save in a case of clear and manifest error. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Ballard v. National Indemnity Company of Omaha, Nebraska, 246 La. 963, 169 So.2d 64 (1964).

In assessing damages for personal injuries, awards in other cases do not provide a scale of uniformity; their use is restricted to determining whether the award under consideration is greatly disproportionate to other awards for truly similar injuries. Ballard, above; Anderson, above.

In this instance, we find that plaintiff sustained cervical and lumbosacral strain as a result of the accident. The cervical problem cleared up within a few weeks. The evidence is clear, however, that plaintiff’s pre-accident spondylolisthesis was rendered symptomatic. As a result of this latter condition, plaintiff has suffered persistent, recurring back pain brought about by what may be deemed routine activity. Dr. Brown’s testimony is explicit in that, because of plaintiff’s condition, plaintiff should not do many things plaintiff is physically capable of doing. Plaintiff is suffering from a 15% disability of the back attributable to the injuries received, which condition is most likely to continue indefinitely, if not permanently. The testimony of Drs. Rhymes and Brown is that plaintiff does not presently and may never require surgery. They agree that surgery is a faint possibility but if it is required, plaintiff would be incapacitated for approximately one year. We note also that as of trial date, approximately two years following the accident, plaintiff was still taking medication for pain and wearing a supportive corset.

The judgment of the trial court is affirmed at appellants’ cost.

Affirmed.


author: COLE, Judge.

text:
    Miss Pamela E. COMEAUX v. Pattye E. BARKSDALE et al.
    No. 11110.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      James H. DuPont, Plaquemine, of counsel, for plaintiff-appellant.
    James E. Moore, Baton Rouge, of counsel, for defendants-appellees.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   COLE, Judge.

This suit arises out of an automobile accident which occurred on March 30, 1973, in Baton Rouge, Louisiana, wherein the automobile driven by the plaintiff, Pamela E. Comeaux, was struck from the rear by an automobile driven by Pattye E. Barksdale, the insured of Fireman’s Fund American Insurance Company. Named as defendants in plaintiff’s petition are Ms. Barksdale, Fireman’s Fund and Barksdale Brothers Corporation. While plaintiff’s petition does not indicate the basis of liability on the part of Barksdale Brothers Corporation, all of the named defendants admitted liability at the commencement of trial.

The only question before this Court, as before the trial court, is the amount of damages to be awarded Miss Comeaux for the injuries she received in the accident. The question of the amount of the award is made difficult because of a more serious prior accident in which the plaintiff sustained personal injuries and incurred medical expenses.

The plaintiff was involved in a serious accident on December 6, 1971, at which time she sustained various injuries and was treated by several doctors. As a result of that accident and the injuries caused by that accident, she was depressed and afraid to drive a car. Consequently, on the advice of her family and attorney, she began seeing Dr. F. A. Silva, a psychiatrist, in an attempt to alleviate her problems. On March 30, 1973, the plaintiff had driven from her home in Donaldsonville to Dr. Silva’s office in Baton Rouge alone for the first time since her 1971 accident. On her return trip home, she was stopped at a light on Florida Boulevard when her vehicle was hit from the rear by Ms. Barksdale. The next day plaintiff developed some soreness and stiffness in her neck and lower back and consulted her family physician, Dr. Jon A. Savoie, who treated the plaintiff for these complaints. He later referred her to Dr. Charles A. Strange, an orthopedist, who also treated her. After the second accident, the plaintiff continued to see Dr. Silva for the same emotional problems that previously existed.

The trial court rendered judgment in favor of the plaintiff and against all of the defendants for $3,243.13. According to the reasons of the trial court, the award represented $243.13 in special damages and $3,000.00 in general damages for pain and suffering. The plaintiff appeals the judgment, seeking increases in these amounts.

The defendants contend that the record demonstrates some of the damages claimed by the plaintiff were a result of the first accident and were not shown to be causally related to the second accident.

In situations involving multiple accidents, whether preceding or subsequent to the accident at issue, it is well settled that a tortfeasor is liable only for the direct and proximate results of his wrongful act. Stevens v. Gulf American Fire and Casualty Company, 317 So.2d 199 (La.App. 1st Cir. 1975); Baughman v. Aetna Casualty and Surety Company, 302 So.2d 312 (La.App. 1st Cir. 1974); McGuire v. Oliver, 227 So.2d 149 (La.App. 2nd Cir. 1969).

In such instances, the tortfeasor is not only liable in damages for the injuries caused by his wrongful act, but also for the aggravation of any pre-existing physical defects or injuries. Baughman v. Aetna Casualty and Surety Company, supra; Williams v. Reinhart, 155 So.2d 51 (La.App. 1st Cir. 1963); Rachal v. Bankers and Shippers Insurance Company, 146 So.2d 426 (La.App. 3rd Cir. 1962).

The burden of proving the causal connection between the damages claimed and the accident by a reasonable preponderance of the evidence rests upon the plaintiff. Stevens v. Gulf American Fire and Casualty Company, supra.

Although the trial judge did not itemize the special damages, after careful review of the record we find that the $243.13 awarded by him is correct. Only this amount was proven by plaintiff to be related to the second accident. It adequately compensates the plaintiff for special damages arising out of the second accident.

The amount awarded in special damages includes the charges and drug prescriptions of Dr. Savoie from the date of the second accident until April 16, 1973, when he referred the plaintiff to Dr. Strange for further treatment of the neck problem. These charges total $47.00 in doctor’s bills and $3.62 in drugs. Also included in special damages relating to the second accident are charges of Dr. Strange totaling $140.00; charges for a neck brace and drugs prescribed by Dr. Strange totaling $27.51; and a charge of $25.00 for x-rays from Prevost Hospital. These various amounts which we find to be causally related to the second accident total $243.13 and exactly coincide with the amount awarded by the trial judge.

Plaintiff contends that she is entitled to lost wages for various days of work missed from the date of the second accident until July 22, 1973, which she alleges were caused by injuries from the second accident. Plaintiff testified that she was forced to miss work because of pain from the neck injury she sustained in the second accident and because of discomfort from the neck brace she had to wear. However, in the plaintiff’s deposition taken on July 24,1973, in relation to the first accident and after the missed days of work claimed in this suit, plaintiff stated that all of the days of work missed by her in 1973 were caused by doctor’s appointments, dentist’s appointments, or headaches resulting from injuries received in the first accident. Thus, plaintiff has failed to prove that the lost wages were a result of injuries received in the second accident and not a result of injuries from the prior accident.

Plaintiff seeks to recover the amount due to Dr. Silva for treatment subsequent to the second accident and for drugs prescribed by him during this time. However, plaintiff was seeing Dr. Silva and was receiving medication prescribed by him prior to the second accident and has failed to establish that any amounts due Dr. Silva or expended for drugs were related to the second accident. While the plaintiff is entitled to recover damages for the aggravation of existing defects, the testimony of Dr. Silva as to whether the second accident aggravated an existing defect was equivocal. Therefore, we find that the trial judge did not abuse his discretion in finding that these amounts claimed were unrelated to the second accident.

Plaintiff further contends that the general damages for pain and suffering' of $3,000.00 were inadequate to compensate her for the neck and back strain and for the aggravation of her depressed mental condition.

Dr. Strange testified that the plaintiff received flexion-extension injuries in the neck and lower back. In the cervical area the plaintiff had some limitation of motion and pain. Dr. Strange characterized the neck injury as “moderate to moderately severe.” However, there were no neurological deficits and the x-rays failed to show any fracture or dislocation in the cervical region. In the lower back the plaintiff had full range of motion. The back injury was characterized as “mild.” Dr. Strange prescribed various muscle relaxants and analgesics, as well as a neck brace which the plaintiff wore for approximately two or three months. Dr. Strange testified that by September of 1973 the plaintiff was completely recovered from her injuries.

Even assuming that the second accident aggravated the plaintiff’s depressed mental condition, we find that $3,000.00 is well within the discretion accorded the trial judge. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

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

AFFIRMED.


text:
    BRADLEY AND BRAUD, INC. v. Gerald Lynn CANADY et al.
    No. 11174.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    John Dale Powers, Baton Rouge, for plaintiff Bradley and Braud, Inc., appellee.
    Lebranche, Baton Rouge, for defendants Gerald Lynn Canady and others, appellants.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

Plaintiff-appellee, Bradley and Braud, Inc., filed suit to enforce a “mortgage” by means of executory process, because of the alleged default on a promissory note executed by defendants-appellants, Gerald Lynn Canady and Deborah Negrotto Cana-dy, in favor of appellee. Judgment was rendered on June 8, 1976, denying appellants’ claim for an injunction and awarding appellee attorney’s fees. On July 2, 1976, appellants were granted a devolutive appeal from the judgment denying the preliminary injunction and awarding attorney’s fees. On the same date, on the motion of the appellee, the trial judge signed a judgment dismissing the suit without prejudice. Counsel for appellee, at the same time, orally advised the court that he wished to waive the attorney’s fees awarded.

We consider this appeal on the appellee’s motion to dismiss based on its mootness.

It is well established that appellate courts do not give opinions on moot questions, that is, abstract propositions which do not arise from existing facts and from which no practical results will ensue. Behler v. Louisiana State Racing Commission, 251 La. 959, 207 So.2d 758 (1968), and cases cited therein; Pettingill v. Hills, Inc., 199 La. 557, 6 So.2d 660 (1942), and cases cited therein.

Counsel for both appellee and appellants refer to the subsequent seizure and sale of the property under a judgment obtained by ordinary proceedings instituted in a separate suit brought after the dismissal of this action. It is correct that a devolu-tive appeal from a judgment refusing to grant an injunction is a moot question when the property has already been seized and sold. Pettingill v. Hills, Inc., supra; Mr. Pizza, Inc. v. Furlow, 230 So.2d 649 (La.App. 4th Cir. 1970); Succession of Bongiovanni, 187 So. 343 (La.App. 1st Cir. 1939). However, the seizure and sale of the property under the judgment obtained in a separate suit is not a matter of record in this suit. Yet, the same principle applies in this case as a result of the dismissal of the executory process action. Because this suit has been dismissed, no practical result can follow from any action we might take on appeal. Therefore, the appeal is dismissed.

This opinion does not address the question of the correctness of the judgment denying the injunction against the seizure and sale. Accordingly, the action by this Court in maintaining appellee’s motion to dismiss the appeal does not negate or affect the appellants’ right in an appropriate proceeding to seek any damages that may have arisen as a result of the suit in question.

For the reasons assigned, the appeal is dismissed, at appellants’ cost.

APPEAL DISMISSED.


text:
    COLONIAL PIPELINE COMPANY v. Alvin J. PAUL et al.
    No. 11338.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    John V. Parker and Michael H. Rubin, Sanders, Miller, Downing & Kean, Baton Rouge, for plaintiff-appellee.
    Ernest L. Garner, II, John B. Garner and Ms. Geraldine Garner Hall, in pro. per.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This Court, on January 7,1977, ex proprio motu, ordered the parties to show cause why the appeal should not be dismissed, an examination of the record having revealed an apparent defect in the appeal, i. e., the failure of appellants to timely file the appeal bond.

Final judgment was signed by the trial judge on June 11, 1976, the matter having previously been taken under advisement. Notice of judgment was mailed on June 15, 1976. There was no application for a new trial. A devolutive appeal was granted to defendants-appellants on September 9, 1976. The appeal bond was filed October 14, 1976.

The last day for taking the devolutive appeal and furnishing security therefor was September 21, 1976. See LSA-C.C.P. arts. 1913, 1974, 2087. Accordingly, the appeal bond was not timely filed.

The jurisdiction of this Court attaches only upon the timely filing of the appeal bond. LSA-C.C.P. art. 2088; Mason v. State Farm Mutual Automobile Insurance Company, 312 So.2d 175 (La.App. 1st Cir. 1975). We are, therefore, without jurisdiction to hear the appeal and same is dismissed at appellants’ costs.

APPEAL DISMISSED.


author: CLAIBORNE, Judge.

text:
    Alfred Henry SAMPAY v. James E. DAVIS et al.
    No. 11022.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      Ben J. Bagert, Jr., New Orleans, for appellant.
    Jacob D. Landry, New Iberia, for appel-lees.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

Plaintiff, as a guest passenger allegedly injured in a rear-end collision, filed suit against several parties including the appel-lee. An exception of “no right or cause of action” filed on behalf of Joseph M. Davis, Jr. was sustained. Plaintiff appeals and we reverse.

Judgment on the exception was rendered on December 10, 1975, and the order granting appeal was signed on January 14, 1976. Appellant has designated as a part of the record on appeal the deposition of Joseph Davis which we cannot consider and therefore have not read, because it was taken on January 7 after rendition of judgment and filed February 9 after the order of appeal. It was not before the district court, and, therefore, it is outside the record for the purposes of this appeal.

In any case the exception is more properly designated an exception of no cause of action, which should be decided upon the allegations of the petition, all well pleaded averments of which must be accepted as true.

The sole issue on appeal is whether the plaintiff has stated a cause of action against Joseph M. Davis, Jr. personally as the principal stockholder of Davis Truck Service, Inc. Among the various alternative allegations in the petition is one which avers that the driver of the rear vehicle was employed by Davis Truck Service, Inc. The pertinent allegations of the petition are as follows:

IV.
Davis Truck Service, Inc., was incorporated in the year 1968. On information and belief, it is alleged that ONE THOUSAND (1,000) shares of stock were issued at the time of its incorporation and that NINE HUNDRED NINETY-EIGHT (998) of those shares were issued to Joseph M. Davis, Jr. It is further alleged that if any additional stock was subsequently issued, all such stock was issued to Joseph M. Davis, Jr.
V.
On information and belief, it is alleged that Davis Truck Service, Inc., has fraudulently incurred debt to Joseph M. Davis, Jr., and to others, all to the detriment of plaintiff herein and other creditors. Said debts have rendered the corporation insolvent, or nearly insolvent, and were incurred deliberately in order to give Joseph M. Davis, Jr., and others preference over other creditors, and, more particularly, your plaintiff.
VI.
On information and believe, it is alleged that when Davis Truck Service, Inc., was organized, it was undercapitalized.
VII.
According to its method of organization, Davis Truck Service, Inc. could be manipulated to the detriment of its creditors, and, more particularly, your petitioner. Thus the defendant, Joseph M. Davis, Jr., was able to withdraw and dispose of, to his own benefit, the capital assets of Davis Truck Service, Inc., thus leaving a mere corporate shell for its creditors, especially your petitioner.
VIII.
It is therefore alleged that Davis Truck Service, Inc., was simply the alter ego of Joseph M. Davis, Jr. Therefore the sole and only reason for the incorporation of Davis Truck Service, Inc., was to enable the defendant, Joseph M. Davis, Jr., to engage in business without incurring any personal liability.
IX.
The recognition of the corporate fiction in this case will result in:
A. Injustice;
B. The justifying of fraud practiced on plaintiff;
C. The evasion of the personal obligations owed by Joseph M. Davis, Jr., to plaintiff;
D. The defense of a crime; and
E. A defeat of the public interest.
For these and for other reasons plaintiffs are praying for a personal judgment against the defendant, Joseph M. Davis, Jr., holding him solidarily liable unto plaintiff with the rest of the defendants herein.
X.
At all times pertinent hereto, Davis Truck Service, Inc., owned the vehicle which defendant, James E. Davis, was driving at the time of the accident made the basis of this suit. Further, petitioner alleges on information and belief that James E. Davis was also in the course and scope of his employment, as an employee of Davis Truck Service, Inc., at the time of the accident made the basis of this suit. Therefore, petitioner alleges that Davis Truck Service, Inc. and Joseph M. Davis, Jr., are responsible for the actions of James E. Davis under the doctrine of respondeat superior.

Without citation of authority appellee simply contends even if all the foregoing allegations are correct, plaintiff has not stated a cause of action because he has no judgment or other liquidated claim against the corporation. It is argued that plaintiff has no cause of action to “pierce the corporate veil” and obtain personal judgment against Joseph M. Davis, Jr., until there is judgment against the corporation which cannot be satisfied on execution.

A corporation is a separate legal entity, distinct from its officers, agents and employees. A corporation and its shareholders are not one and the same even though the number of shareholders is reduced to one. Cefalu v. N. Cefalu Company, 253 So.2d 547 (La.App. 1st Cir. 1971). Limited or inadequate capitalization does not of itself indicate fraud or raise any presumption of fraud, deceit or ill practices on the part of a stockholder. Texas Industries, Inc. v. Depuy & Depuy Developers, Inc., 227 So.2d 265 (La.App. 2d Cir. 1969).

In the case of Camp v. Gibbs, 331 So.2d 517 (La.App. 2d Cir. 1976) the law is succinctly stated as follows:

Louisiana law expressly and specifically provides that corporations may be formed by one or more persons. LSA-R.S. 12:21. An individual may form a corporation for the sole or primary purpose of avoiding personal liability. As long as the corporate existence is maintained intact, immunity from individual liability of a sole or majority shareholder is the same as if there were a multiplicity of shareholders. Hughes Realty Company v. Pfister, 245 So.2d 757 (La.App. 4th Cir. 1971).
The corporate entity may sometimes be disregarded where a shareholder has practiced fraud upon a person through a corporation and where a shareholder disregards the corporate entity to such an extent that the separate individualities of the corporation and its shareholders have ceased to exist, so that the corporation is merely the alter ego of the shareholder or shareholders. Hughes Realty Company v. Pfister, supra; Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., 227 So.2d 265, 268 (La.App. 2d Cir. 1969).

Similar statements may be found in National Bank of Commerce v. Hughes-Walsh Co., 246 So.2d 872 (La.App. 2d Cir. 1963); and Shreveport Sash & Door Company v. Ray, 159 So.2d 434 (La.App. 2d Cir. 1963).

In. National Surety Corporation v. Pope, 147 So.2d 239 (La.App. 4th Cir. 1962) the rule is stated thus:

“The very nature and existence of a corporation is, of course, a fiction, but the significance of that fiction is that the liability of its members shall be determined judicially as if that fiction were the truth, and persons who deal with it must understand that this is so.
The courts have created an exception to the foregoing rationale when an individual, owning a majority of stock in a corporation, has utilized the corporate entity as a screen for the purpose of individually practicing fraud or deception upon the public or the creditors thereof.”

See also Keller v. Haas, 202 La. 486, 12 So.2d 238 (1943); Noe v. Roussel, 310 So.2d 806 (La.1975); and L. L. Ridgway Company v. Marks, 146 So.2d 61 (La.App. 4th Cir. 1962).

A review of the foregoing cases reveals that the courts have not stripped a principal stockholder of the shield of personal immunity except upon the necessary showing of fraud or other misconduct in which he actually participated or is deemed to have participated through his corporate alter ego. The manner in which books are kept as between the corporation and the principal stockholder may be a determining fact as to separate entity status. Griffin v. Cambridge Construction Company, 236 So.2d 539 (La.App. 4th Cir. 1970). In L. L. Ridgway Company v. Marks, supra, it was held that the plaintiff seeking to pierce the corporate veil must allege that he was misled into extending credit to the corporation or that he relied upon the individual’s rather than the corporation’s credit. There was no allegation of fraud, and the mere allegation that the corporation was formed as a means of attempting to defeat the stockholder’s personal liability for indebtednesses incurred for his own account was not sufficient.

In the present case there are allegations that the corporation and its principal stockholder intended to evade corporate and personal responsibility to the plaintiff through fraudulent practices.

Turning to the question whether plaintiff has no cause of action against the principal stockholder until he has first reduced his claim to judgment against the corporation, we note that in Shreveport Sash & Door Company v. Ray, supra, the plaintiff first secured a judgment against the corporation before proceeding against the principal stockholder in a separate action, but in several other cases this procedure was not followed. See e. g. National Surety Corporation v. Pope, supra, and Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., supra.

In Noe v. Roussel, supra, the Supreme Court allowed recovery both against the corporation and its principal stockholder in the same action for an unliquidated claim for damages. In Noe v. Roussel the misconduct consisted of a breach of a fiduciary duty by the principal stockholder who was liquidator of another corporation when he sold property of the corporation in liquidation to his own corporation. Suit was against the liquidator and the purchaser corporation (the liquidator’s alter ego). The court refused to permit the purchaser corporation to assert its separate entity status, citing Keller v. Haas, supra. It is true the misconduct was actually practiced by the stockholder in that case, but where the corporation is the alter ego of the stockholder and it is alleged that the fraud was practiced with the intention of defeating the plaintiff’s rights, among those of other creditors, then the stockholder and his corporate alter ego are the same entity with respect to such plaintiff. We conclude that a tort claimant may proceed against the principal stockholder and his corporate alter ego without first obtaining a judgment against the corporation, provided the allegations of fraud, deception and identity discussed above are otherwise adequate to state a cause of action against such stockholder.

The allegations of the petition set forth fraud or deception practiced upon the public by the appellee through his corporation. Whether the plaintiff can discharge the burden of proving such allegations does not properly concern us, but having stated a cause of action against the appellee, the plaintiff is entitled to a trial of the issue.

For the foregoing reasons, the judgment is reversed and the case remanded for further proceedings in accordance herewith.

REVERSED AND REMANDED.