text:
    Helen M. LEE, Plaintiff and Appellant, v. Harold LEE, Defendant and Appellee.
    No. 5807.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      John G. Williams, Natchitoches, for defendant and appellant.
    Gahagan & Gahagan by Marvin F. Gaha-gan, Natchitoches, for plaintiff and appel-lee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

This is a companion case to Lee v. Lee, La.App., 343 So.2d 425, in which a separate decision is. being rendered by us this date. The two cases were consolidated for trial and appeal.

Mrs. Lee filed the present suit on January 16,1975, which was before Mr. Lee filed the companion suit for divorce on June 2, 1975. In the present case, Mrs. Lee seeks judgment against Mr. Lee for the sum of $3,000, representing past due installments of $500 per month due under an order for child support rendered in the Chancery Court of Ashley County, Arkansas, on July 3, 1974. Also, Mrs. Lee prayed for judgment against Mr. Lee in the sum of $7,200 and for one-half of the balance due in a certain savings account, which she alleges are due to her by Mr. Lee under the terms of a “Property Settlement Agreement In Contemplation of Legal Separation”, which agreement is dated February 21, 1973 and was executed while the parties were still married and living in Arkansas. From a judgment of the district court rejecting all of Mrs. Lee’s demands in the present suit, she has appealed.

The issues are: (1) Does Mrs. Lee have a cause of action in Louisiana against her husband, Mr. Lee, for enforcement of the property settlement which they entered into on February 21, 1973 while still married and living in Arkansas? (2) Is the child support order of the Arkansas Chancery Court a final judgment under the laws of Arkansas and therefore entitled to full faith and credit in the courts of Louisiana as to the past due installments?

The record shows that Mr. and Mrs. Lee were married in 1956 and lived together for several years in Crossett, Arkansas. Three children, all girls, were born of the marriage. While still living in Crossett, Arkansas, Mr. and Mrs. Lee separated in the early part of February, 1973. On February 21, 1973, they entered into a “Property Settlement Agreement In Contemplation of Legal Separation”. This agreement states that Mrs. Lee had instituted proceedings before the Chancery Court of Ashley County, Arkansas for a legal separation, in contemplation of which Mr. Lee agreed to pay to Mrs. Lee $450 per month for the support of the three minor children until they became 18 years of age. The agreement also contained other provisions as to a division of property. It also states that the parties consent that the agreement be made a part of the separation decree in Arkansas when granted. However, the record does not show that the agreement was ever actually incorporated into any court decree in Arkansas.

On July 3, 1974, the Chancery Court of Ashley County, Arkansas rendered an “Order” granting custody of the three daughters, ages 16 years, 15 years and 13 years respectively, to Mrs. Lee and ordering that Mr. Lee pay to Mrs. Lee the sum of $500 per month for child support. The Arkansas order does not decree a legal separation or divorce nor does it provide alimony or maintenance for Mrs. Lee. Also, it expressly states that the Arkansas court retains jurisdiction for the purposes of enforcing the provisions of the order or making any further orders necessary in connection with the custody and support of the minor children.

In April of 1974, Mr. Lee moved from Arkansas to Natchitoches, Louisiana. His 16 year old daughter left Arkansas with him. In December of 1975, the 17 year old daughter left her mother in Arkansas to live with her father. At the time of trial, both girls were still living with their father. They testified they were happy and desired to stay with him. The third daughter, now over 18 years of age, is married.

The record shows that Mr. Lee made sporadic payments of various amounts to his wife for child support prior to the time he moved to Louisiana in April of 1974. Mr. Lee admits that he made no further child support payments to his wife after he reached Louisiana, since none of the children were with her. In addition, Mr. Lee did not comply with the provisions of the property settlement agreement regarding his giving his wife one-half of his interest in his credit union account.

The first issue is whether Mrs. Lee has a cause of action in Louisiana against her husband for enforcement of the “Property Settlement Agreement In Contemplation Of Legal Separation”, which was entered into in Arkansas on February 21, 1973 at a time when the parties were neither legally separated nor divorced.

The rights of the wife to sue her husband in Louisiana are limited to the four actions enumerated in LSA-R.S. 9:291. That statute provides: “As long as the marriage continues and the spouses are not separated judicially a married woman may not sue her husband except for: (1) A separation of property; (2) The restitution and enjoyment of her paraphernal property; (3) A separation from bed and board; or (4) A divorce.” In the present case, Mrs. Lee sued seeking performance of a property settlement contract. Such a suit is not authorized by the above quoted statute. Therefore, Mrs. Lee has no cause of action under Louisiana law to enforce the terms of the property settlement agreement. See Stelly v. Montgomery, 339 So.2d 956 (La.App. 3rd Cir. 1976).

Mr. Lee did not file an exception of no cause of action. However, under LSA-C. C.P. Article 927, the court of appeal, on its own motion, may notice the failure to state a cause of action.

Regardless of whether the agreement is valid and enforceable under the laws of Arkansas, Mrs. Lee cannot file an action in contract in Louisiana against her husband while they are neither judicially separated nor divorced.

The final issue is whether Mrs. Lee may take the Arkansas child support order into a Louisiana court and obtain a money judgment for past due payments.

A foreign judgment ordering payment of alimony or child support is not entitled to full faith and credit in Louisiana as to accrued installments, if the laws of the state which rendered the judgment allow modification as to accrued installments. Baldwin v. Baldwin, 337 So.2d 245 (La.App. 3rd Cir. 1976) and cases cited therein.

In Arkansas, the general rule is that accrued, unpaid support installments may be modified only if the original support order contains a reservation of the court’s right to make such modification. Sage v. Sage, 219 Ark. 853, 245 S.W.2d 398 (1952); see also Folds v. Folds, 160 So.2d 251 (La. App. 2d Cir. 1964). In cases since Sage, however, the Arkansas courts have adopted a case by case approach with attention to the equities involved. In Kirkland v. Wright, 247 Ark. 794, 448 S.W.2d 19 (1959), for example, the Arkansas Supreme Court explained: “Circumstances may arise, as they did in Pence [v. Pence, 223 Ark. 782, 268 S.W.2d 609, Art. 1969], where the equities in a given case require further deviation from the rule in Sage.” Thus, the support decree of the Arkansas Chancery Court in the present case would be subject to modification, even as to accrued installments, if equity required it, or if the court reserved the right to make such modifications. We think the present Arkansas support decree would be subject to modification on either of these two grounds.

The child support decree of the Arkansas Chancery Court contains this reservation: “This court retains specific jurisdiction of this cause for the purpose of enforcing the provisions of this order, or of making any further orders necessary in connection with the custody and support of the minor children." (Emphasis added) The language of this reservation may reasonably be construed as a reservation of the right to modify accrued installments. The judgment is therefore modifiable, and consequently is not final.

Furthermore, given the equities of the present case, we need not rest our determination that the Arkansas decree is subject to modification on only the reservation reserved in the Arkansas decree. As the following facts demonstrate, the equities weigh heavily in the husband’s favor. The original child support award of $500 per month was for three children. One of the three children married soon after the judgment was rendered and no longer depended on the mother for support. The other two children lived with their mother for a very short time. When this case was tried, one of the children had been living with the father for two years and the other for about a year. The father, of course, supported the children when they lived with him. Thus, a substantial portion of the arrearages now claimed by Mrs. Lee accrued during the time the father was supporting the two children. Considering these facts, an Arkansas court would probably conclude that the equities of the present case warrant modification of the unpaid accrued installments due under the terms of the child maintenance decree. We recognize that under Louisiana jurisprudence amounts past due under a child support judgment cannot be modified on equitable grounds. Granger v. Granger, La.App., 193 So.2d 898 (3rd Cir. 1967). However, Arkansas courts do allow such modification. Therefore, the order at issue here is not final under the laws of Arkansas and is not entitled to full faith and credit in Louisiana.

The Arkansas judgment is subject to modification. Therefore, it is not final and is not entitled to full faith and credit in Louisiana. Accordingly, we reject Mrs. Lee’s claims for unpaid child support payments accruing under the terms of the Arkansas child support order.

For the reasons assigned, the judgment of the district court is affirmed. The costs of this appeal are assessed against Mrs. Lee.

AFFIRMED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Melvin L. MAXWELL and Elizabeth B. Maxwell, Plaintiffs-Appellees, v. Mae BERNARD, Defendant-Appellant.
    No. 5809.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Luke J. Coussan, Lafayette, for defendant-appellant.
    Bares & Placer by Allen R. Bares, Lafayette, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Mr. and Mrs. Melvin L. Maxwell, instituted this action to recover the sum of $20,000.00 representing the cost of repairing certain alleged defects in a new home constructed for them by defendant, Mae Bernard. Mrs. Bernard filed a recon-ventional demand seeking the amount of $3,115.53, representing the alleged unpaid balance due her for services and certain materials provided in the construction of plaintiffs’ home. After a trial on the merits the District Judge awarded plaintiffs the amount of $11,784.72 and rejected defendant’s reconventional demand. Defendant has appealed suspensively to this court.

The extent of the written agreement entered into by the parties is a hand-written statement setting forth certain technical aspects of the construction. The document concludes:

“for the sum of ($86,000.00) Eighty-six
Thousand Dollars.
/s/ Mae Bernard ”

During the course of construction several alterations and modifications were made in the original plan raising the total cost of construction to approximately $94,000.00. All parties agree that plaintiffs paid defendant the sum of $94,000.00 for the construction of the home. Mrs. Bernard testified that the actual cost of construction was in excess of $92,000.00.

Mrs. Bernard contends that the agreement between herself and -plaintiffs contemplated a “cost plus a fixed fee” contract and that her profit for services performed in accordance with the construction was to be a flat $5,000.00. On the other hand, plaintiffs argue that their interpretation of the agreement with Mrs. Bernard called for a total construction price of $86,000.00, which was to include the latter’s profit. Plaintiffs admit that certain additions were made, at their request, thereby raising the price to $94,000.00, which sum they paid to Mrs. Bernard.

Mrs. Bernard also argues that she was not a “contractor” in the general sense of the term but rather merely “supervised” the construction of the home. Defendant claims that under the “cost plus a fixed fee” contract which she believed existed plaintiffs should have paid her in excess of $97,000.00 to include her $5,000.00 fixed fee profit.

We are of the opinion, at the outset, that Mrs. Bernard was an “independent contractor” and not merely a supervisor of the construction or an employee of the Maxwells. The term “independent contractor” has been well defined by the Supreme Court in the case of Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385, 391 (1972):

“The law further recognizes that inquiry to determine whether a relationship is that of independent contractor or that of mere servant requires, among other factors, the application of the principal test: the control over the work reserved by the employer. In applying this test it is not the supervision and control which is' actually exercised which is significant, the important question is whether, from the nature of the relationship, the right to do so exists.”

The Supreme Court has further stated in Amyx v. Henry & Hall, 277 La. 364, 79 So.2d 483, 486 (1955) that:

“‘An independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.’ ”

See also Johnson v. Dabbs, 194 So.2d 816 (La.App. 1st Cir. 1967), Ravare v. McCormick & Company, 166 So. 183 (La.App. 2nd Cir. 1936), and Merritt v. E. L. Bruce Company, 166 So. 195 (La.App. 2nd Cir. 1936).

In the instant case Mrs. Bernard hired each and every subcontractor to perform work on the job. She provided workmen’s compensation insurance for those employees and also directly purchased all materials used in construction of the home. When questioned as to the degree of control which she exercised over the construction project she testified as follows:

“Q. The subcontractors that you contracted to build this house, those people were hired by you, were they not?
A. That’s right.
Q. You had total control over their activities, did you not?
A. Well, as much as I can, yes.
Q. I mean by that the Maxwells did not have, control over them, did they?
A. No.”

The above quoted testimony, read in light of the factual context of this litigation, clearly indicates that Mrs. Bernard enjoyed the status of an independent contractor and was not a mere employee who was hired by the Maxwells to supervise construction.

Concerning the type of building contract executed by the parties, we are of the opinion that an honest dispute as to the nature thereof exists. Mrs. Bernard testified that her general procedure was to charge a fee for her services, which in this case was to be $5,000.00. Apparently she originally contemplated that construction of the home would actually cost $81,000.00, and the $86,-000.00 figure quoted by her to the Maxwells was intended to include her fee or profit. Mrs. Bernard contends that her fee was simply to be $5,000.00 above the total construction cost. Since the cost of building the home was in excess of $92,000.00, and the Maxwells paid her $94,000.00 Mrs. Bernard argues that an additional $3,115.53 is due her under the theory of a “cost plus a fixed fee contract”.

The Maxwells argue that they operated under the assumption and impression that any figure quoted by Mrs. Bernard necessarily included her profit margin. The Maxwells testified that Mrs. Bernard never made mention of a “cost plus a fixed fee” concept. It is significant that, in her own testimony, Mrs. Bernard fails to state that her theory of the contract was ever communicated to the Maxwells. The only written evidence of the contract is the woefully inadequate above referred to written estimate signed by Mrs. Bernard. That document being unfortunately obscure, certain rules apply to the construction thereof. Civil Code Article 1958 provides:

“But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.”

Our Courts have long held that any obscure provision present in a written contract must be construed against the party preparing the agreement. See Hebert v. Briley, 295 So.2d 607 (La.App. 3rd Cir. 1974), writ refused, 300 So.2d 181 (La. 1974); Succession of Cormier, 80 So.2d 571 (La. App. 1st Cir. 1955), and Ernest A. Carrer.e’s Sons v. Rumore, 52 So.2d 57 (La.App.Orl. 1951). See also the Article at 50 Tul.L.Rev. 1, 33.

In the recent case of Larriviere v. Roy Young, Inc., 333 So.2d 254 (La.App. 3rd Cir. 1976), we stated:

“LSA-C.C. art. 1958 provides for construction against the responsible party ‘. . .if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given.’ Where a layman contracts with a knowledgeable and experienced businessman, the burden is on the latter to point out obscurity.”

In light of the above cited statutory and jurisprudential rules of contractural construction we are compelled to concur in the trial judge’s finding that the building contract must be construed against Mrs. Bernard. In so doing we find that the judge, a quo, correctly ruled that the contract was not one of the “cost plus a fixed fee” nature, and accordingly we affirm the district court’s rejection of Mrs. Bernard’s reconventional demand.

The final issue raised by this appeal concerns the cost of remedying the alleged defects in construction of the home. The Maxwells presented the testimony of one Alvin Hebert, who was accepted by the court as an expert in the field of appraisals and construction. Mr. Hebert provided the court with a detailed estimate indicating the specific defective items and the cost of repairing or replacing same. This expert witness quoted a sum of $11,784.72, and said figure as well as the nature of the alleged defects were virtually uncontradicted by Mrs. Bernard.

Our law implies that in every building contract the contractor or subcontractor shall perform in a workmanlike manner. See North American Contracting Corporation v. Gibson, 327 So.2d 444 (La.App. 3rd Cir. 1975), writ refused, La., 332 So.2d 280; Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir. 1975), writ refused La., 319 So.2d 440; Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2nd Cir. 1974). Civil Code Articles 2762, 2769.

The evidence adduced at trial clearly preponderated in plaintiffs’ favor that numerous aspects of the construction performed on their home were done so in an unworkmanlike manner. The amount necessary to remedy the defects being clearly proven, we are of the opinion that the trial judge correctly awarded plaintiffs the sum of $11,784.72.

For the above and foregoing reasons the judgment of the District Court is affirmed. Costs of this appeal are assessed against defendant-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    RAY’S APPLIANCE & AIR CONDITIONING, INC., Plaintiff-Appellee, v. Jesse H. HEARD, Jr., et al., Defendants-Appellants. TWIN CITY PAINT & CARPET, INC., Plaintiff-Appellee, v. Jesse H. HEARD, Jr., et al., Defendants-Appellants.
    Nos. 5811, 5812.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Bruscato & Loomis by Anthony J. Brus-cato and Trudy L. Avants, Monroe, for defendants-appellants.
    Holt, Wagner & Lee, Richard E. Lee, Jr., Pineville, for plaintiff-appellee.

      Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

These two cases, consolidated for appellate review, involve appeals from the granting of motions for summary judgments on behalf of the plaintiffs.

In each of the two suits, the basis for the plaintiff’s cause of action is a lienable claim. In each petition, the plaintiff, a sub-contractor, alleges: (1) an agreement with defendant, a contractor, to have equipment furnished and installed; (2) lack of recordation of the building contract; (3) the furnishing of the material and the installation of same; (4) amicable demand and failure to comply, and, (5) the timely filing of a lien claim within sixty days of the last performance of labor on the project, the construction of the Chateau Royale Apartments.

In each suit the plaintiff has filed a motion for summary judgment to which was annexed, a “certified” copy of the bill of plaintiff forwarded to defendant. In each suit, on the date of the hearing on such motion, plaintiff filed an affidavit signed by one of its officers, attesting to the contract with defendant, plaintiff’s full compliance therewith, the amount of the unpaid balance due plaintiff by defendant, and plaintiff’s timely filing of its lien claim. To its answer to the motion for summary judgment, defendant attached, served on plaintiff, and filed an affidavit of one of its officers attesting as to the date of substantial completion of the project and denying plaintiff’s allegation as to amount due, which statements were in direct opposition to those of plaintiff’s affiant.

A summary judgment may not be rendered unless the pleadings, depositions, affidavits, and like evidence show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. CCP Art. 966, 967; State Farm Fire & Casualty Co. v. Sentry Indemnity Co., 316 So.2d 185 (La. App. 3 Cir., 1975); cases too numerous to cite. Even in cases where the existence of a genuine issue of material fact is not strongly established, all doubts are resolved against the granting of a summary judgment. This is true even where one party’s affiants are particular and the other party’s affiants are general in style. Ferina v. Howard, 285 So.2d 805 (La.App. 3 Cir., 1973).

In the case in which plaintiff is the mover, as in this case, the motion for summary judgment can be granted only where the pleadings, depositions, and affidavits show that there is no issue of any fact material to any of the several elements of plaintiff’s entire cause of action. Laird v. Travelers Indemnity Co., 236 So.2d 561 (La. App. 4 Cir., 1970). In such case, all reasonable doubt as to the existence of a genuine issue of fact must be resolved against plaintiff. Mandella v. Russo, 294 So.2d 598 (La. App. 4 Cir., 1974).

In these two cases there exists doubt as to some of the facts material to the elements of the plaintiff’s cause of action, which doubt can only be resolved at trial. There is issue as to the amount owed plaintiff by defendant, as to the date of substantial completion of the project, and as to whether or not the claim for plaintiffs’ liens were timely filed. For such reasons, we reverse the trial court’s granting of the motions for summary judgment, remand to trial court for further proceedings, and assess all costs of this appeal against the appellees.

REVERSED AND REMANDED.


author: WATSON, Judge.

text:
    Irby THIBODEAUX, Plaintiff-Appellant, v. Jerald (Gerald) GILBERT, Defendant-Appellee.
    No. 5814.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Armentor & Wattigny by Gerard B. Wat-tigny, New Iberia, for defendant-appellee.
    Harold L. Savoie, Lafayette, for plaintiff-appellant.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Irby Thibodeaux, filed this suit against defendant, Jerald (Gerald) Gilbert, claiming damages resulting from an alleged battery on November 1, 1975, at the Town House Restaurant in Rayne, Louisiana. After hearing the testimony of the witnesses to the incident, as well as that of the parties, the trial court rendered judgment in favor of defendant and dismissed plaintiff’s suit. Plaintiff has appealed.

The only issue on appeal is whether there is manifest error in the trial court’s decision.

Thibodeaux was dining at the restaurant along with Mary Lopez and her daughter, Diana. Gilbert, along with his brother, and their respective wives, had been at Cootsie’s Lounge consuming beer and mixed drinks when they decided to eat at the Town House Restaurant. After they arrived, the ladies went to the rest room, and Gilbert got into a discussion with Thibodeaux, the particulars of which are disputed. Gilbert went outside. Gilbert claimed he did so to let the argument subside, but Thibodeaux said Gilbert invited him out for a fight. In any event, Thibodeaux went outside, and a fight ensued with Thibodeaux sustaining injuries to his thumb and arm as a result. Both parties accuse the other of striking the first blow.

The only disinterested witness was Bertha Pepper, the manager-waitress of the Town House Restaurant. According to her testimony, Thibodeaux, after following Gilbert outside, threw the first punch. (TR 48-49).

Thibodeaux voluntarily went outside to engage in the fight with Gilbert, according to his own testimony. According to the disinterested witness, plaintiff Thibo-deaux struck the first blow. The testimony of a disinterested witness is, of course, to be given greater weight than that of participants in a fight or their friends and relatives. Phillips v. Freiler, 271 So.2d 708 (La.App. 1 Cir. 1972). A person who engages voluntarily in a fist fight cannot complain to the court simply because he suffered the worst of it, absent any unusual circumstances. Buchert v. Metropolitan Life Insurance Company, 219 So.2d 584 (La. App. 4 Cir. 1969).

Likewise, one who strikes the first blow cannot complain because the other party uses reasonable force to defend himself. Phillips v. Freiler, supra.

There is no manifest error in the decision of the trial court in favor of defendant and it is affirmed.

Costs are taxed against plaintiff-appellant.

AFFIRMED.


text:
    Mrs. Juanita BELVIN, Plaintiff and Appellant, v. Hubert E. SMITH and Rockwood Insurance Company, Defendants and Appellees.
    No. 5817.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Baggett, McClain & Morgan by Homer C. Singleton, Jr., Lake Charles, for plaintiff and appellant.
    Raggio, Farrar, Cappel & Chozen by Frederick L. Cappel, Lake Charles, for defendants and appellees.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

Plaintiff, widow of the deceased employee, Julien Curtis Belvin, filed this workmen’s compensation suit seeking benefits as a result of an alleged work related heart attack experienced by her husband, from which he subsequently died. Made defendants are Hubert E. Smith, the decedent’s employer, and Rockwood Insurance Company, the latter’s compensation insurer.

Defendants filed a peremptory exception of prescription under the provisions of LSA-R.S. 23:1209. The trial judge sustained the exception with respect to the personal claim of the decedent for workmen’s compensation benefits incurred prior to his death (23:1209), and overruled the exception with respect to plaintiff’s claim for dependency benefits (23:1231).

Mrs. Belvin has appealed, and we find the principal issue before us to be whether under R.S. 23:1209 the prescriptive period involved herein should commence on the date of Mr. Belvin’s death or on the date of the injury.

The undisputed facts show that the employee sustained the heart attack while in the course and scope of his employment on August 16, 1974. His case was diagnosed that same day, and he was hospitalized and treated immediately and continuously until his death on August 17, 1975. Mr. Belvin did not return to work prior to his death, and no compensation benefits were paid either to the decedent or to the plaintiff. The latter filed the present suit on May 24, 1976, some nine months after her husband’s death, and approximately twenty-one months after the accident (heart attack).

LSA-R.S. 23:1209 provides:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

We -find that prescription has not been interrupted or suspended. No payments or benefits were ever made to decedent or plaintiff; the facts do not relate to a “development of injury” application. There is no proof that decedent or plaintiff were “lulled” into the belief that the claim would be paid. In the latter regard, a review of plaintiff’s testimony shows that the decedent discussed the accident with his employer and filed a claim, but the record does not indicate what events transpired after that date nor can we determine why payments were not made. The insurer’s adjuster did contact plaintiff after decedent’s death, and even assuming arguendo, that their conversation could be considered a “lulling” by defendant insurer, said action would have transpired after decedent’s death, or more than one year from the date of the accident, and after the tolling of prescription. In Blanchard v. Liberty Mutual Insurance Company, 280 So.2d 592 (La.App. 3rd Cir. 1973) we held that once prescription had run, the cause of action ceased to exist, and subsequent developments could not operate to revive the cause of action.

The decedent’s injury manifested itself on the date of the accident (August 16, 1974), and the heart attack was diagnosed immediately. Mr. Belvin became totally disabled at that moment. Therefore, suit for the personal claim of the decedent for workmen’s compensation payments and medical expenses had to be filed within one year from August 16, 1974. See Allen v. Milk Haulers, Inc., 278 So.2d 871 (La.App. 1st Cir. 1973). LSA-R.S. 23:1209.

Appellant also contends, but we disagree, that LSA-R.S. 23:1209 and 1231 are in conflict. Section 1231 reads as follows:

“For injury causing death within two years after the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided. If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.”

As was stated in Connell v. United States Sheet and Window Glass Company, 2 La. App. 104 (La.App. 2nd Cir. 1925), Section 1231 creates a right of action to the dependents of the employee, whereas Section 1209 is a statute of prescription which applies to claims created by other sections of the Act. We agree, and reiterate for emphasis that there is no authority, statutory or jurisprudential, which supports plaintiff’s contention that prescription on the employee’s personal claim for workmen’s compensation benefits commences to run on the date of death, as opposed to the date of the accident (or its extension under the “development of injury” theory.)

For the above and foregoing reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . It is to be remembered that plaintiffs claim for dependency benefits (LSA R.S. 23:1231) is still viable in the district court, the exception of prescription in that regard having been overruled. We express no opinion on this portion of her claim inasmuch as that issue is not before us at this time.

      . We consider that the one year limitation herein is applicable to a claim for medical expenses, as it is to compensation payments. Brown v. Travelers Insurance Company, 160 So.2d 776 (La.App. 4th Cir. 1964).


text:
    Sharon L. CARSWELL, Plaintiff-Appellee, v. ADMINISTRATOR, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR, State of Louisiana, Defendant-Appellant.
    No. 5819.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Marion Weimer, Baton Rouge, for defendant-appellant.
    Robert L. Kennedy, Colfax, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

This is a suspensive appeal from a default judgment entered against the defendant, Administrator, Division of Employment Security, Department of Labor, State of Louisiana, in favor of plaintiff, Sharon L. Cars-well.

The decisive issue is whether there is sufficient evidence for a default judgment.

The only relevant contents of the record are the petition, which asks that an administrative decision denying plaintiff unemployment benefits be set aside and that she be declared eligible for unemployment benefits and receive attorney’s fees; documentary exhibits, consisting of various letters and forms, which relate to plaintiff’s employment with the Red River Parish Schools and the denial of her claim for unemployment compensation; the citation and return of service; and a judgment in favor of plaintiff and against defendant in the amount of $920 with legal interest. There is no transcript of testimony, although the minutes of court indicate that plaintiff testified (TR. 1).

In the ordinary case, the proceedings would be reviewed on the principles recently pronounced in Succession of Rock v. Allstate Life Ins. Co., 340 So.2d 1325 (La., 1977), as follows:

“In order to obtain reversal of a default judgment appealed from, or to obtain a remand, defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and that it is correct. When the judgment recites, as it does here, that plaintiff has produced due proof in support of its demand and that the law and evidence favor plaintiff and are against defendant, the presumption exists that the judgment was rendered upon sufficient evidence and that it is correct.” 340 So.2d 1328-1329.

However, the defendant-appellant submits the well-founded contention that the applicable statute, LSA-R.S. 23:1634, provides that in unemployment compensation cases a reviewing court may not receive additional evidence but must confine itself to a study of a certified copy of the record of the case, to be filed by the administrator, and to questions of law. As a consequence, the reviewing trial court errs if it renders judgment by default. Sykes v. Doyal, 265 So.2d 780 (La.App. 2 Cir. 1972).

LSA-C.C.P. art. 1702 requires that before the entry of a default judgment there must be “proof of the demand sufficient to establish a prima facie case”. The proof here does not satisfy that requirement since the reviewing court (the trial court here) did not have before it a certified copy of the record of the case. The default judgment must be set aside. Courville v. Southern Casualty Insurance Co., 304 So.2d 93 (La. App. 3 Cir. 1974); Evangeline Employment Service v. Decuire, 340 So.2d 1113 (La.App. 3 Cir. 1976).

For the reasons assigned, the default judgment is vacated and set aside and the case is remanded to the District Court for further proceedings consistent with this opinion. Defendant is allowed fifteen (15) days to answer or otherwise plead.

All costs are to await final disposition.

REVERSED AND REMANDED.


text:
    Amenthye Gail THIBODEAUX, Plaintiff-Appellee, v. Robert DUOS, Defendant-Appellant.
    No. 5823.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Privat & Regan, Kenneth O. Privat, Crowley, for defendant-appellant. •
    Stephen J. Ledet, Jr., Opelousas, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

From a judgment rendered in favor of plaintiff-in-rule, Amenthye Gail Thibo-deaux, making past-due alimony payments executory, defendant-in-rule, Robert Duos, filed this appeal. Thibodeaux answered same, alleged that the appeal was frivolous, and prayed for attorney fees.

In the early part of March, 1974, Mrs. Thibodeaux filed a petition for separation from bed and board from Duos, who accepted service of the petition. On April 11, 1974, a judgment thereon was rendered in favor of plaintiff Thibodeaux and against defendant Duos, decreeing a legal separation between them, and awarding plaintiff alimony in the sum of Three Hundred ($300.00) Dollars per month. On two subsequent occasions, the last of which is the suit from which the appeal has been brought, Thibodeaux filed rules against Duos to make executory all past-due alimony payments. To such rules, defendant filed no responsive pleadings.

In this appeal, defendant Duos assigns the following as errors of the trial court:

1. In finding that there was a valid judgment upon which to base an award for past-due alimony,
2. In failing to allow the appellant to introduce evidence which would show (A) an agreement to deviate from the terms of the judgment of separation and (B) compensation by the husband to the wife for her taking community assets and converting same to cash for her benefit, without accounting to the appellant.

I

VALIDITY OF JUDGMENT OF SEPARATION

Defendant contends that inasmuch as he was not personally served with citation and with notice of the judgment of separation, the judgment is not final. Defendant Duos accepted service of the petition and waived the formal service and the issuance and service of citation thereof. (Tr., pg. 5) In effect, he was personally served. Thus notice of judgment was not required to be served upon him. C.C.P. Art. 1913.

The issue of the validity of the judgment of separation was not properly before the trial court. Articles 2001-2006 of the Louisiana Code of Civil Procedure provide instances in which the validity of a judgment may be attacked. In all such situations, an ordinary proceeding must be brought therefor. Columbia Radio & Supply Co. v. Jordan, 215 So.2d 553 (La.App. 4 Cir. 1968). In a summary proceeding such as this, there may be a disposition of certain matters only, of which the contestability of a judgment is not included. C.C.P. Art. 2592. Duos seeks a collateral attack of the judgment of separation. Clearly he cannot do so. The trial court correctly ruled against the defendant in this connection.

II
OBJECTIONS TO EVIDENCE SOUGHT TO BE ELICITED
A. DEVIATION FROM THE TERMS OF THE JUDGMENT OF SEPARATION
At the hearing on the rule, the following questions were asked .plaintiff Thibodeaux:
Q. Did you and your husband discuss the separation agreement? Did you all have an agreement when you all separated? (Tr., pg. 48)
A. Yes, we did. (Tr., pg. 48)
Q. Was that agreement that your husband would pay $300 a month, is that not correct? (Tr., pg. 48)
A. . [Objection by counsel]
Q. Did you and your husband agree he would pay you one year’s alimony at this», rate? (Tr., pg. 50)
A. . [Objection by counsel]

To such questions, the attorney for Thibo-deaux, stating that the judgment of separation could not be challenged in such way, raised an objection. Such objection was sustained by the trial court.

When Duos was asked:

Q. I would ask you subsequent to June — before June of 1974, were you contacted by your wife with regard to the payment of alimony? (Tr., pg. 51),

an objection to materiality and relevance was raised by plaintiffs counsel, which objection was sustained by the trial court. Counsel for defendant then made a proffer of evidence tending to establish that plaintiff and defendant had agreed to the method by which the defendant would pay the delinquent installments.

The only issues to be resolved at the hearing were those pertaining to the payment of alimony by defendant. Such issues involved the date or dates upon which defendant failed to pay alimony and the amount of alimony not paid. The hearing centered only on those issues. (Even assuming that the issue of an agreement was properly before the trial court, defendant failed to even abide by such agreement; at no time did defendant voluntarily pay any alimony.) As the above questions dealt with issues not raised by the pleadings (to which plaintiff timely objected) and as the questions were immaterial and irrelevant, the trial court properly sustained the objections thereto. La.C.C.P. Art. 1154.

B. COMPENSATION

Also during the hearing, plaintiff Thibo-deaux was asked the following question:

Q. Mrs. Thibodeaux, is it true that you are in possession of certain assets of the community (not complete)? (Tr., pg. 50)

Again an objection based upon relevancy was raised and sustained, and again defendant’s counsel made a proffer of evidence.

The issue of compensation for community property was not properly before the trial court. Even had such issue been raised in the pleadings, the trial court could not (unless by stipulation of counsel) have rendered judgment declaring appellant entitled to compensation for the value of the community property held by plaintiff. Such issue was not triable in a summary proceeding. C.C.P. Art. 2592.

As this appeal raises issues as to which a careful resolution must be made, it cannot be termed “frivolous”, and plaintiff-appel-lee’s prayer for attorney fees is denied.

All costs of appeal are assessed against defendant-appellant.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    LIGHTHOUSE LIFE INSURANCE COMPANY, INC., Plaintiff and Appellant, v. Earline RICH and James E. Rich, Defendants and Appellees.
    No. 5824.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Eugene J. Coen, Shreveport, for plaintiff and appellant.
    Eugene P. Cicardo, Alexandria, for defendants and appellees.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

This is a suit for an injunction. Plaintiff is in the burial insurance business. Defendant, Mrs. Earline Rich, is its agent in Alexandria, Louisiana. Plaintiff contends that Mrs. Rich has breached her agency agreement by failing to remit premiums collected, refusing to produce her books and records for inspection by plaintiff, and by causing some of plaintiff’s customers to transfer their business to National Western Life Insurance Company, a competitor of plaintiff in the area. Mrs. Rich’s husband, James E. Rich, is also named as a defendant. Plaintiff contends he is an agent for National Western Life Insurance Company, and that he is soliciting business from plaintiff’s customers.

Plaintiff’s petition prays for a temporary restraining order, a preliminary injunction and a permanent injunction enjoining the defendant Earline Rich from further acting as plaintiff’s agent, and ordering defendants to deliver into plaintiff’s possession all of the books, records and other papers in their possession pertaining to plaintiff’s insurance business.

On June 8, 1976, a temporary restraining order was issued as prayed for, and the rule for a preliminary injunction was set for hearing on June 14, 1976. Thereafter, the hearing on the rule for preliminary injunction was continued to June 21,1976, but the temporary restraining order was not extended. It expired ten days after its issuance.

On June 21, 1976, the date of the hearing for a preliminary injunction, defendants filed an answer generally denying that plaintiff was entitled to an injunction and praying for damages and attorney’s fees. After the hearing, the district judge denied the preliminary injunction on the basis that plaintiff failed to show that irreparable injury would occur unless a preliminary injunction was issued. The trial judge rejected defendants’ demands for damages but awarded each defendant attorneys’ fees in the sum of $500. The judgment does not dissolve the restraining order, since it had already expired before the hearing. Plaintiff appealed. Defendants answered the appeal, seeking an increase in the award for attorney’s fees.

The issues are: (1) Did the trial court err in refusing to grant the preliminary injunction? (2) Are defendants entitled to attorney’s fees where the temporary restraining order had expired before defendants’ attorney filed an answer and before the hearing on the preliminary injunction?

THE PRELIMINARY INJUNCTION

In detailed reasons dictated into the record at the conclusion of the hearing on the preliminary injunction, the district judge found that at the time this suit was filed plaintiff had not attempted to terminate the services of Mrs. Rich as its agent, that whenever plaintiff had requested the books for inspection, Mrs. Rich had submitted them, and that there was no evidence to show that defendants were attempting to transfer plaintiff’s business to another insurance company. The trial judge concluded:

“As I view the matter the sole reason for the whole thing was to use the office of the Court to apparently intimidate the Riches into turning over the books when, by the testimony of these witnesses that we’ve had in the case, there have been contacts recently, neither one of them asked them for the books and no termination, just suddenly a restraining order and I think that’s what it’s all about. I see that the — as far as I am concerned there was no justification for the issuance of the restraining order even as I tailored it or rewrote it.”

LSA-C.C.P. Article 3601 provides for the issuance of a preliminary injunction where it is shown that irreparable injury, loss or damage may otherwise result to the applicant during the pendency of the suit for permanent injunction. Jurisprudence holds that the threat of irreparable injury must be clear and convincing. State Board of Education v. National Collegiate Athletic Association, 273 So.2d 913 (3rd Cir. 1973). Furthermore, the trial judge has broad discretion in determining whether to grant a preliminary injunction and his decision will be disturbed only where there is a clear abuse of that discretion. Picard v. Choplin, 306 So.2d 918 (3rd Cir. 1975). Applying these rules to the present case, it is clear that the evidence amply supports the decision of the trial judge in denying the preliminary injunction.

ATTORNEY’S FEES

LSA-C.C.P. Article 3608 provides in pertinent part: “Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages . . . .” (Emphasis supplied) Jurisprudence makes it clear that where the temporary restraining order has expired by operation of law ten days after issuance, and where there is no showing of any necessity to obtain an attorney to dissolve the restraining order, attorney’s fees cannot be awarded. Robinson v. Jackson, 255 So.2d 846 (2d Cir. 1971), writ denied, 260 La. 700, 257 So.2d 165; Pizzitola v. Pace, 161 So.2d 441 (1st Cir. 1964); Intercity Express Line v. Guarisco, 165 So.2d 727 (1st Cir. 1936); Austin v. Currie, 16 La.App. 375, 134 So. 723. Under this jurisprudence, it is clear that no attorney’s fees can be awarded in connection with the temporary restraining order in the present case.

As to the preliminary injunction, no such writ was ever issued. The statute, LSA-C.C.P. Article 3608, states that attorney’s fees are allowable in connection with the “dissolution” of a preliminary injunction. There is no statute which allows attorney’s fees for simply defending a rule for a preliminary injunction. See Pizzitola v. Pace, supra, where the court reached the same conclusion.

We conclude defendants are not entitled to damages or attorney’s fees.

For the reasons assigned, the judgment appealed is affirmed insofar as it denies the preliminary injunction. That portion of the judgment which awards attorney’s fees is reversed and set aside, and judgment is now rendered in favor of the plaintiff rejecting the demands of defendants for damages and attorney’s fees. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED IN PART, REVERSED IN PART.


text:
    Mrs. Wayne FONTENOT et al., Plaintiffs and Appellees, v. WEST BROS. OF EUNICE, INC., et al., Defendants and Appellants.
    No. 5827.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Dubuisson, Brinkhaus & Dauzat by Edward B. Dubuisson, Opelousas, Fusilier, Pu-cheau & Soileau by J. William Pucheau, Ville Platte, for defendant-appellant.
    A. Bruce Rozas, Mamou, for plaintiff-ap-pellee.
    Before HOOD, CULPEPPER and D0-MENGEAUX, JJ.
   CULPEPPER, Judge.

This is a suit for damages resulting from an alleged malicious prosecution. Plaintiff, Mrs. Wayne Fontenot, was arrested and charged with issuing a worthless check to defendant department store, West Bros, of Eunice, Inc. The trial court rendered judgment against West Bros, and awarded plaintiff damages of $1,700 on the grounds that defendants’ actions were reckless and indifferent to the rights of plaintiff and therefore constituted malice. Defendant appealed.

An action for malicious prosecution lies in only those cases where there is a concurrence of the following elements: (1) The commencement or continuation of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff. Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975); Eusant v. Unity Industrial Life Insurance Association, 194 La. 347, 196 So. 554 (1940).

The decisive issue in the present case is whether there was malice.

The general facts are undisputed. On February 29, 1973, the defendant, West Bros, of Eunice, accepted a personal check in the amount of $70.53 from a person claiming to be Mrs. Wayne Fontenot. An examination of the check, which was introduced into evidence at trial, shows that it is the usual printed form except it is not “personalized” with the drawer’s name printed on its face. The face of the check bears the drawer’s signature, “Mrs. Wayne Fontenot”. Beneath the signature there is a handwritten notation of the address and phone number of the drawer. The address stated there is “101 South Street, Mamou, Louisiana”. On the face of the check and on the reverse side are the drawer’s license number and Social Security number. On the reverse side are also the same address and phone number which appear on the face of the check. This check was returned unpaid to West Bros, by the drawee bank with the notation, “No account as drawn”.

Aside from having the same name, the drawer of the worthless check and the plaintiff apparently have nothing in common. The address, phone number, Social Security number, and license number of the drawer are different from those of the plaintiff. Also, the signature on the check is not that of plaintiff.

After the check was returned, West Bros, mailed a registered letter containing a notice of nonpayment to “Mrs. Wayne Fon-tenot” at 101 South Street, Mamou, Louisiana, the address given on the check. The letter was mailed on March 22, 1973. Though addressed to 101 South Street, the letter was delivered by mistake to the plaintiff at her address on Cedar Street, in Mam-ou.

Upon receiving the letter, plaintiff went to the West Bros. Store and informed the manager, Mr. Witkovski, and another employee, Ms. Venable, that she was not the drawer of the check. She showed the manager her driver’s license and Social Security number which differed from those written on the face of the worthless check. Plaintiff then asked Mr. Witkovski what would be done about the worthless check. The manager replied that charges would be brought against the person living at the address stated on the check.

On April 12, 1973, Ms. Venable completed a questionnaire supplied by the City Court of Eunice. This form is functionally captioned as follows: “TO BE ATTACHED TO THE AFFIDAVIT WHEN ACCEPTING CHARGES FOR THE CRIME OF ISSUING WORTHLESS CHECKS.” The worthless check, which contains the drawer’s address, Social Security number, driver’s license number and phone number was attached to this form. The completed questionnaire and check were then given to the clerk of the City Court of Eunice. The clerk prepared affidavits charging “Mrs. Wayne Fontenot” with the crime of issuing worthless checks. These affidavits were signed by the assistant manager of the West Bros. Store.

On April 12, 1973, the Judge of the Eunice City Court issued a warrant for the arrest of “Mrs. Wayne Fontenot” of “101 South Street”, Mamou on the basis of the affidavits and documents described above. A letter enclosing the arrest warrant was then sent by the Eunice Police Department to the Mamou Police Department.

On May 7, 1973 an officer of the Mamou Police Department informed plaintiff that he had a warrant for her arrest. Plaintiff told the officer that she did not owe any money to West Bros. The officer than left for a short time, saying that he would return after he made a telephone call. When he returned, he arrested plaintiff and took her to Mamou Town Hall, where she posted bond and was immediately released. There is no evidence to indicate whom, if anyone, the police officer called after he left the plaintiff.

On May 24, 1973, plaintiff appeared for her arraignment in Eunice City Court. At the arraignment, plaintiff spoke with the Eunice City prosecutor who in turn called Mr. Witkovski, the manager of the West Bros. Store, and recommended the charges be dropped. As a consequence of the telephone call from the city prosecutor to Mr. Witkovski, the charges against plaintiff were dropped on May 25, 1973.

There is some question as to when West Bros, first knew that plaintiff rather than the unknown drawer of the worthless check was arrested and prosecuted. We have carefully reviewed the testimony on the point and conclude that West Bros, had no knowledge of plaintiff’s arrest until the Eunice City Attorney called Mr. Witkovski on May 24, 1973.

West Bros, argues that two elements of the action for malicious prosecution, lack of probable cause and malice, are not present in this case. The absence of either of these elements would be fatal to plaintiff’s claim for damages. Assuming, without deciding, that there was no probable cause for the prosecution, we will consider whether the malice element was satisfied.

There was no affirmative proof of malice on the part of West Bros, and the trial judge stated in supplemental reasons for judgment that his finding of liability was not based on a finding of spite, ill will or malice. The holding of the trial court is based instead on the Robinson case, supra. There, our Supreme Court said negligence is not ordinarily malice, but when it amounts to reckless and inexcusable indifference to the rights of the plaintiff, malice is presumed. The question is, did the trial court err in finding that West Bros, actions constituted malice?

There is no evidence in the record to support a holding that West Bros, acted in reckless and inexcusable indifference to the plaintiff’s rights. To the contrary, the evidence shows that West Bros, acted responsibly. The law enforcement authorities were supplied with the name, address, license number and Social Security number of the person to be arrested. The defendant had no reason to presume that the authorities would negligently perform their duties by arresting plaintiff, whose address, license number and Social Security number differed from those supplied by defendant.

It was the arresting officer, not West Bros., who evidenced what may have been a reckless indifference to plaintiff’s rights. He arrested the wrong person at the wrong address despite her protest. The wanton and reckless negligence of the police officer cannot be imputed to defendant. We note that neither the Eunice Police Department nor the Mamou Police Department nor any of their employees are named as defendants in this suit.

There is no merit in plaintiff’s argument that West Bros, subjected itself to liability by not informing the Police Department that its registered letter was mistakenly delivered to plaintiff on Cedar Street, instead of “Mrs. Wayne Fonotenot” on South Street. West Bros, had no reason to believe the arresting officer might make the mistake as the postman made regarding plaintiff’s address.

Having concluded that there was no malice on the part of West Bros., either actual or presumed, we do not reach the issue of probable cause. There being no proof of concurrence of the six elements of the malicious prosecution action, as listed above, plaintiff’s claim for damages is rejected.

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now entered in favor of defendant dismissing plaintiff’s suit at her costs. The costs of this appeal are assessed against plaintiff-appellee.

REVERSED AND RENDERED.


text:
    Lucy LECOMPTE et al., Plaintiffs and Appellees, v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY, Defendant and Appellant.
    No. 5828.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      James C. Dixon, Baton Rouge, for defendant-appellant.
    Andrus & Andrus by James P. Doherty, Jr., Opelousas, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

The plaintiff, Mrs. Lucy Lecompte, seeks damages for personal injuries, sustained when she tripped and fell in the parking lot of the building occupied by the Driver’s License Bureau operated by defendant in Opelousas, Louisiana. The trial judge found the accident was caused by the negligence of defendant in allowing a “blob” of old concrete to remain on the parking area, creating a hazard to pedestrians. An award $10,000 for general damages was made. Defendant appealed. Plaintiff answered the appeal, seeking an increase in the award.

The issues are: (1) Was the accident caused by the negligence of the defendant? (2) Was the plaintiff, Mrs. Lecompte, con-tributorily negligent? (3) Was the award excessive or inadequate?

The facts are that on February 7, 1973, Mrs. Lecompte. and her husband, who were about 65 years of age at the time, went to the Driver’s License Bureau operated by the defendant in Opelousas. They parked their pickup truck in the parking lot near the door of the building and then went into the office where Mrs. Lecompte obtained her driver’s license. Upon leaving the building, using the same door they had entered, Mrs. Lecompte was walking across the parking lot back toward their pickup truck when she tripped and fell. She suffered a Colles’ fracture of her left wrist and bruises to her knees.

The evidence clearly establishes that Mrs. Lecompte tripped on a “lump” of concrete, which was on the surface of the parking lot. Mr. Lecompte was walking beside his wife and he saw her trip. Immediately after the fall, he saw what he described as a “lump” of concrete about 6 inches in diameter and at least 1 inch high. Mr. Lecompte, who is a bricklayer’s helper, said that it appeared to be a piece of mortar which had dropped there soft and hardened. He said the surface of the lump was rough and that it was of a grayish color, about the same as the parking lot.

Another witness, Reverend Masciaracina, saw Mrs. Lecompte lying on the parking lot immediately after she fell. He testified the “lump” was about 3 by 4 inches in size and about lVi inches high. He also said it appeared to be concrete of a grayish color, about the same color as the parking lot surface.

Both Mr. Lecompte and the priest testified that there was a small sidewalk, for a distance of about 6 feet, from the door to the parking lot area, and that the lump was about 6 feet from the end of the walk and almost immediately in front of the door where pedestrians walked.

A defense witness, Abner Boudreaux, testified he was the custodian of the building, and that immediately after Mrs. Lecompte fell he was instructed to go and remove the lump. He said he hacked it off with a hammer in a few minutes. He described the lump as about 2 by 3 inches in size and about V2 to % of an inch high and of a grayish color. However, he said the lump was on the asphalt parking lot which is black. Also, he said the lump was about 20 feet from the door.

Mr. Dixon, the office manager, described the lump about the same as Mr. Boudreaux. Dixon also testified that his office issues 10,000 to 15,000 driver’s licenses per year and that no one else had ever fallen on the lump. He said neither he nor any of his employees had ever noticed the lump ■ before.

NEGLIGENCE OF THE DEFENDANT

In its brief the defendant takes the position that persons coming to the premises to obtain a driver’s license should be classified as licensees rather than invitees for the purpose of determining the duty owned them by defendant. In the recent case of Shelton v. Aetna Casualty & Surety Company, La., 334 So.2d 406 (1976) our Supreme Court stated:

“Recently, however, this Court in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976) noted that ‘[w]e find the common law classifications of invitee-licensee-trespasser to be of little help in applying C.C. 2315.’ In so stating, we indicated that the proper test to be applied in determining a landowner’s liability under articles 2315 and 2316 of the Civil Code is ‘ “whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others,” ’ and, as we related, ‘ “although the plaintiff’s status as a trespasser, licensee or invitee may in light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.” ’ ”

Applying this rule to the present case, the determinative question is not whether Mrs. Lecompte was a licensee or an invitee. The question is whether the “lump” of concrete on which Mrs. Lecompte tripped created an unreasonable risk of foreseeable injury to the many pedestrians who walked across this area of the parking lot immediately in front of the door.

The first question is whether the “lump” was unreasonably dangerous. If the size and height of the lump was as described by plaintiff’s witnesses, Mr. Lecompte and Reverend Masciaracina, i. e., approximately 1 inch to lVi inches high and 4 inches to 6 inches in diameter, and if it was of about the same color as the surface of the parking area on which it was located, then we conclude there was a reasonable evidentiary basis to support the conclusion of the trial judge that was an unreasonably dangerous hazard to the many pedestrians who walked this way.

There are many cases in our jurisprudence involving defects and foreign objects on walkways and passageways. Our courts have found small defects to be unreasonably hazardous under the circumstances. In Daire v. Southern Farm Bureau Casualty Insurance Company, 143 So.2d 389 (La.App. 3rd Cir. 1962), writ of certiorari denied, the court found the proprietor negligent where the head of a large nail protruded about Va inch above the floor of the porch on a fishing camp. In Bergeron v. Employers-Commercial Union Companies, 306 So.2d 367 (La.App.3rd Cir. 1975) a customer in a store tripped on a welcome mat or rug, the edge of which was turned up. The court held that was an unreasonable hazard.

Each of these cases must be decided on its own facts. Although we think there is a close question in the present matter as to whether this “lump” of concrete constituted an unreasonably dangerous hazard to pedestrians, we are unable to say that there was not a reasonable evidentiary basis to support the factual conclusion of the trial ludge. Canter v. Koehring Company, La., 283 So.2d 716 (1973).

CONTRIBUTORY NEGLIGENCE OF MRS. LECOMPTE

As stated above, plaintiff’s witnesses said the “lump” of concrete was of a grayish color about the same as the parking lot. The witnesses for defendant said the “lump” was of a grayish color, but the parking lot was black asphalt. Defendant also stresses the fact that it was about noon on a clear day. Despite this conflict in the testimony, the trial judge could have accepted the testimony of plaintiff’s witnesses that the “lump” was about the same color as the surface of the parking lot on which it was located and thus not readily observable. There is no question that this was the only “lump” or defect in the immediate area, nor is there any question that this was a portion of the parking lot immediately in front of the doorway which was used by many pedestrians.

Of course, pedestrians have the duty to use reasonable care under the circumstances for their own safety. In the present case, the district judge concluded that Mrs. Lecompte was not contributorily negligent in failing to see this lump before she tripped on it. This may also be a close question of fact, but we are unable to say that there was not a reasonable evidentiary basis for the trial judge’s conclusion. Canter v. Koehring, supra.

THE QUANTUM OF THE AWARD

The trial judge awarded $10,000 in general damages for the personal injuries suffered by Mrs. Lecompte. She suffered abrasions of the knee and a Colles’ fracture of the left wrist which required 2 or 3 days of hospitalization on two occasions and a cast which she wore for several weeks. At the time of the trial, about three years after the accident, plaintiff was still having subjective complaints of swelling, loss of use and pain in her left hand. The treating physician testified she had about an 8% residual disability of the left hand.

Under the circumstances, we find the award of $10,000 was within the large discretion of the trial judge as to the quantum of awards in personal injury cases.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


text:
    Dudley TEZENO, Plaintiff and Appellant, v. ST. LANDRY PARISH POLICE JURY, Defendant and Appellee.
    No. 5829.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      John Haas Weinstein of Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelousas, for plaintiff and appellant.
    Young & Burson by I. Jackson Burson, Jr., Eunice, Jimmy L. Dauzat, Dubuisson, Brinkhaus & Dauzat, Opelousas, for defendant and appellee.
    Before HOOD, CULPEPPER, and D0-MENGEAUX, JJ.
   DOMENGEAUX, Judge.

This is a tort case resulting from a vehicular accident which occurred on a narrow parish gravel road west of the town of Washington, St. Landry Parish, Louisiana. Plaintiff-appellant Dudley Tezeno, driving his 1966 Chevrolet in a northerly direction, collided with a 1973 Ford, owned by the State of Louisiana, which was being driven in the opposite direction by a State Trooper, Lee R. Darbonne. Plaintiff sued only the St. Landry Parish Police Jury, alleging generally that the latter governing agency was causally negligent in not properly maintaining the road and failing to erect appropriate signs warning the travelling public of specified dangerous conditions which existed on the road. The Police Jury denied liability and specially pleaded contributory negligence on the part of Tezeno. It also third-partied Trooper Darbonne but subsequently dismissed its third party action against the latter.

After trial on the merits, the District Judge found actionable negligence on the part of the Police Jury but also found that Tezeno was guilty of negligence proximat-ing the accident, and consequently dismissed plaintiff’s suit at his costs.

The matter is now before us on Mr. Tez-eno’s appeal.

The accident occurred in the early afternoon of August 14, 1974, and the weather was clear. The gravel road in question is approximately fifteen feet wide making it physically possible for two vehicles to pass each other provided the vehicles reasonably utilize their respective right sides of the road. As appellant was travelling north he was confronted with a blind curve to his left and the curve of course would be to the State Trooper’s right as the latter approached it coming south. Inside the curve, the road traverses a drainage culvert, referred to in the evidence as a bridge, but a perusal of the excellent photographs introduced in evidence seem to show little dis-cernibility of anything but a continuation of the road. There is a heavy growth of brush on each side of the road obstructing the view of both drivers as they approached the curve. There is no question but that the curve is a blind one. Tezeno entered the blind curve at 35 miles per hour driving well to his left on the narrow road. Upon seeing the approaching Darbonne vehicle, he apparently attempted to get back over to his right, because the point of impact of the collision between the two vehicles was about the center of the road, with the left portions of each vehicle beyond the center.

The plaintiff lived in the vicinity, was well acquainted with the gravel road and its described curve, and customarily trav-elled on this narrow thoroughfare.

We agree with the trial judge in his finding of causal negligence on the part of plaintiff-appellant, hence we need not pass on the finding of such negligence on the part of the Police Jury.

Concerning Tezeno’s negligence, we quote with approval from portions of the district judge’s written reasons for judgment as follows:

Actually, what happened in this case is that the Police Jury had a gravelled road which is just wide enough that if two cars wish to pass, one has to stop and the other ‘creep’; or, both cars have to ‘creep’. This has resulted in one set of ‘ruts’ or travelled portion, — which is apparent from the photos introduced.
Further, Plaintiff has tried valiantly to inject the question of a narrow bridge to bring this case under the umbrella of facts in Dabov, 302 So.2d 697 h In the opinion of this Court, and it so finds, the bridge was not a factor. It had no more to do with the wreck in setting up a hazardous situation, than the inherent narrowness of the road.
The fact of the matter is that Plaintiff entered a blind curve curving to his left and the other driver came out of the blind curve at that same time,.—both travelling at about 35 mph.

The trial judge quoted from Dabov, supra, on the question of the duty of the driver of a motor vehicle:

The driver of a motor vehicle is under a never ceasing duty to maintain a proper lookout and to see that which he should have seen. His failure to see that which he should have seen constitutes negligence. He is required to maintain such control over the speed and operation of his vehicle as to permit him to stop within the range of his legally proper lookout. There are exceptions to this rule, but those exceptions apply only in situations where the accident occurs suddenly and without warning, or where it results from a dangerous condition which could not have been detected by a driver who was maintaining a proper lookout and proper control over his vehicle. DeGregory v. State Department of Highways, 192 So.2d 834 (La.App. 1 Cir. 1966).

The opinion of the district judge continued:

The crux of this case is in the activities of the Plaintiff to see if he was also

1. Complete citation by Appellate Court: Dabov v. Allstate Insurance Company, 302 So.2d 697 (La.App. 3rd Cir. 1974). guilty of negligence, or even an assumption of the risk.

The defendant can be assigned several acts of negligence:

A. Going into a blind curve too fast. (See Note 1 to LSA-RS 32:61)
B. Not keeping a proper look out for oncoming cars. (See LSA-RS 32:21, Notes 30-33)
C. Driving too fast under the circumstances. (Again see Note 1 to LSA-RS 32:61)
D. Being involved in a head-on collision while he was over the center line. (See LSA-RS 32:71)

Plaintiff argued that, really, the plaintiff was not negligent; and, secondly, the contributory negligence of the Plaintiff couldn’t be used. The Court asked for jurisprudence to sustain the second argument, but none was forthcoming.

The Court felt that a better argument was that the Plaintiff has been more or less led into negligence by the negligence of the Police Jury.

However, the overriding fact that the Court gives the greatest consideration to, after finding the Plaintiff negligent, is the positive testimony that the Plaintiff lived in the neighborhood and used this road; and the passive fact that the Plaintiff presented no testimony that he was unfamiliar with the road, and was more or less ‘trapped’ by the Police Jury.

The Court feels that this fact sets up basic contributory negligence on the part of the Plaintiff; and, while this is decisive, also militates against the ‘proximate cause’ between the negligence of the Police Jury and the injury. It also argues even for an ‘assumption’ of a known risk by the Plaintiff.

The Court feels and finds that what caused this accident was not primarily the road construction, lack of maintenance and/or lack of marking, etc. on the part of the Police Jury, but the fact that Plaintiff knew of the hazards, did nothing to circumvent or guard against these habits [sic], went blithely ahead, and suffered consequences which were almost certain to happen in the light of Plaintiff’s conduct.

Our review of the record supports the trial court’s factual findings. We agree that Mr. Tezeno is barred from recovery by his negligent conduct. The latter was completely familiar with the little gravel road and knew of the blind curve which was glaringly obvious, on this clear day, even to a stranger in the vicinity. He was driving too fast under the circumstances, and blindly entered the curve travelling in the left portion of the road surface, resulting in his collision with Trooper Darbonne, all of which amounted to causal negligence on his part.

For the above and foregoing reasons, the decision of the district court is affirmed, at appellant’s costs.

AFFIRMED.

      . See Hailey v. LaSalle Parish PoUce Jury, 302 So.2d 668 (La.App. 3rd Cir. 1974). Although the Police Jury therein was found to be negligent for not remedying a hazardous defect in the road, the plaintiff was also found to be negligent barring his recovery because he failed to keep a proper lookout, did not notice the defect which he knew was there, and was travelling too fast under the circumstances.

      . We are not called upon to, and we do not express any opinion concerning any negligence attributable to Trooper Darbonne.


text:
    Carlton FREEMAN, Jr., Plaintiff and Appellant, v. T. L. JAMES COMPANY, INC., et al., Defendants and Appellees.
    No. 5830.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    White & Pitre, Marion Overton White, Opelousas, for plaintiff and appellant.
    Davidson, Meaux, Onebane & Donohoe, Timothy J. McNamara, Lafayette, for defendants and appellees.
    Before HOOD, CULPEPPER and DO-MENGEAUX, JJ.
   CULPEPPER, Judge.

This is a suit for total and permanent disability benefits and attorney’s fees under our Workmen’s Compensation Law. The plaintiff, Carlton Freeman, Jr., was injured on November 10, 1972 during the course and scope of his employment with defendant, Louisiana Paving Company. From the date of the accident until July 4, 1974, defendant’s compensation insurer paid plaintiff the maximum benefits allowable under the terms of the Compensation Act. In addition, the insurer paid all of the plaintiff’s medical expenses. This suit was instituted on July 26, 1974, after defendant ceased payment of compensation benefits. The trial court rejected plaintiff’s demands. Plaintiff appealed.

The issue is whether plaintiff was disabled beyond the time compensation payments were terminated.

The record shows that plaintiff’s left hand, the left side of his neck, and his face were burned when the tar hose he was holding burst. First, second and third degree burns resulted with third degree burns being confined to very small areas. The burns healed, leaving only slight scarring, consisting for the most part of patches of skin which were lighter or darker than normal. There was no damage to the muscle underlying the burned area. Plastic surgery was not recommended. The affected skin areas are now normal in the sense that there is no loss of sensitivity or other evidence of impairment to the nerve system. The oil and sweat glands in the burned areas function normally.

Plaintiff claims that as a result of the accident he is totally disabled because his left hand does not function normally and because a rash develops on the burned area of his neck and hand during hot or cold weather. There is no medical testimony to support these claims of disability. We first consider the evidence regarding injuries to plaintiff’s hand.

Plaintiff alleges that as a result of the accident he can neither voluntarily extend nor close the index and second finger on his left hand. He says the fingers constantly remain in a state of partial closure.

Physical therapy was prescribed following the accident to remedy this situation. When this therapy was discontinued in April of 1973, the treating physical therapist testified that the range of motion of the two fingers was normal or near normal even when the fingers were moved voluntarily by plaintiff. The general practitioner who referred plaintiff to the physical therapist was in substantial agreement with his assessment of the ability of plaintiff to use his hand.

Plaintiff’s hand was examined by an orthopedic surgeon in January of 1974 and again in April of 1975. The orthopedic surgeon testified that his examination revealed plaintiff had complete sensation of the hands and fingers. The musculature of the fingers was not damaged. There was neither atrophy of the fingers nor deminerali-zation of the bones. The lack of atrophy or demineralization indicate that plaintiff could and did use the left hand. Summarizing his findings, the orthopedic surgeon said that he could find no medical basis for plaintiff’s inability to use his left hand. The doctor stated there was nothing to preclude plaintiff from returning to manual labor.

The testimony of those who were qualified to give an opinion regarding the use of the left hand was uniform in its contradiction of plaintiff’s claim that the hand was unusable.

Moving next to plaintiff’s assertion that he suffered from a disabling condition of his skin, we consider the testimony of the dermatologist who examined plaintiff in April of 1975. Plaintiff’s dermatological complaints at the time of examination were that the previously burned areas of his neck and hand broke out in a rash in hot weather and chapped in cold weather. From her examination of plaintiff, however, the dermatologist concluded that plaintiff did not suffer from any disabling condition. There was no evidence of a rash or chapping at the time of examination, but plaintiff had not recently been subjected to the type of weather and working condition which allegedly caused the problem. The doctor commented that heat and sweating would probably not produce a disabling rash. The dermatologist added that a rash or chapping could be prevented or controlled by application of ointment or other medication.

There is a reference in plaintiff’s brief to a possible injury to the eye resulting from the accident. There is no evidence in the record, however, to support .this claim.

Plaintiff has not argued that he is entitled to compensation for permanent disfigurement of his face or for the loss of use of a physical function, under the terms of LSA-R.S. 23:1221(4)(c). The evidence shows that the scarring is relatively minor and is not a serious permanent disfigurement. Similarly, there is no support in the record for a claim for serious permanent impairment of a physical function.

In summary, the medical evidence adduced at trial contradicts plaintiff’s assertion of disability. Considering the record as a whole, the evidence clearly supports the factual finding of the trial judge that plaintiff has no disability beyond the time compensation payments were terminated.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

      . Though T. L. James Company, Inc. is named as defendant in this suit, the parties stipulated that plaintiff was employed by defendant, Louisiana Paving Company, rather than T. L. James Company, Inc.


text:
    Deborah Marie REED, etc., Plaintiff-Appellant, v. Eby HENRY, Jr., et al., Defendants-Appellees.
    No. 5831.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Ronald E. Dauterive, Lafayette, for plaintiff-appellant.
    Bailey & Hollier by W. C. Hollier, Lafayette, Michael L. McAlpine, New Orleans, Stockwell, Sievert, Viccellio & Clements by Fred H. Sievert, Jr., Lake Charles, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

This is an appeal by plaintiff from an adverse jury decision, involving basically the question of whether there is a reasonable evidentiary basis for the jury’s holding that plaintiff’s husband was contributorily negligent. Plaintiff is Deborah Marie Reed, widow of Dale Joseph Duhon, suing individually and on behalf of the minor child of the marriage, Kirk Dale Duhon. Defendants are Eby Henry, Jr., a co-employee of Duhon, whose negligence is alleged to have caused Duhon’s death, and Home Insurance Company, which, under the terms of an insurance policy issued to Gulf States Utilities Company, insured Henry against liability for damages in excess of $50,000.

On July 23, 1974, Duhon was working as a helper and Henry as a lineman for Gulf States near Lawtell, Louisiana when a ground line being handled by Henry near the top of a pole fell across a charged electric line and caused the death by electrocution of Duhon, who was in contact with the ground line at the foot of the pole. Henry and Duhon were working as part of a crew which also included Jesna Hopkins, the foreman; Joseph Stelly, another lineman; and Eugene Sarver, another helper. The crew was involved in the transfer of electric lines from old poles to new poles located a few feet farther from the road. At the time of the accident, the crew was working at the second set of poles, the transfer having been accomplished without incident at the first set. The lines, also referred to as “phases”, were being worked while carrying electricity because many customers were being served by the particular lines and it was impractical to turn off the voltage.

All of the surviving members of the crew testified as to the procedures being followed. The transfer at the pole where the fatal accident occurred was described by the defendant, Henry, who was the only witness with actual knowledge of the events. He was working in his bucket, which is on the end of a boom attached to a truck, near the top of the pole, while the deceased, Duhon, was working as his helper at the bottom of the pole. These two men were working at the new pole while Stelly and Sarver were working at the old pole. The “field phase” or the charged line on the side of the pole away from the highway had been transferred and secured on a cross-arm attached to the new pole. Then the ground wire was sent up by a hand line from Duhon to Henry. The ground wire is a copper wire which is attached at the top to a neutral wire which runs from pole to pole at the top. At a time established by the testimony of the members of the crew to be about five minutes before the accident, the ground wire was sent up and passed through a “house knob” which is an attachment on a pole located below the level of the charged electrical lines or “phases”. Then the ground wire was coiled around the “house knob” and Henry told Duhon to “pull it”. Duhon’s duties at this juncture were to pull the ground wire tight, staple it to the pole and attach it by means of a sleeve and a compression tool to another wire which is grounded at the base of the pole.

This operation by Duhon, according to all members of the crew, should have required approximately 30 seconds.

Then Henry backed his bucket and raised it to the vicinity of the top of the pole where he received the neutral wire from the other lineman. He noticed that his boom was close to the “phase” and that the rubber covers were not positioned correctly so he put a screwdriver in the top of the pole, temporarily hung the neutral between the screwdriver and the pin already located on the top of the pole, backed down and straightened his rubber covering. He went back up, and at some juncture received a white insulator (or “saddle”) from Duhon on the ground, installed the insulator on the pin on the top of the pole, put the neutral line into the white insulator or saddle and then proceeded to move his boom down as far as he could to grab the ground wire.

Henry was wearing some rather cumbersome rubber gloves which are required by the safety practices of Gulf States at any time there is danger of contact with a charged wire. The ground wire which Henry took in his hand from the vicinity of the house knob slipped from his grasp and fell across the field phase. Duhon, who must have been in contact with the ground wire at the bottom of the pole, was hit by high voltage, and, after surviving a few minutes, died.

Certain significant features emerged from the testimony of Henry and the other members of the Gulf States crew: (1) the lineman, not the helper, is in the most dangerous area of work because he is in and around highly charged electric lines; (2) the helper’s responsibility is to coordinate his work with that of the lineman and not vice versa; (3) the task performed by Duhon in clamping the ground line required normally only about 30 seconds while the work being performed by Henry in the interim would have taken about five minutes; (4) if Du-hon experienced any difficulty or delay in completing the work with the ground line, it was his responsibility to notify the lineman; and (5) if Duhon was going to be working on the ground line after it was lifted from the house knob into the vicinity of the phases, he was required by standard safety procedures of Gulf States to wear rubber gloves.

After hearing the witnesses, the jury returned their verdict, finding both Henry and Duhon negligent, and no award of damages was made to plaintiff.

The issue on appeal is whether there is a reasonable evidentiary basis for the jury’s decision that Duhon was contributorily negligent.

In reviewing the jury’s determination that Duhon was contributorily negligent, we must bear in mind that the primary duty of weighing the evidence, judging credibility of witnesses and making conclusions of fact belongs to the jury.

“. . . [Tjhese tasks are allotted initially to the triers of fact, here the jury; and the conclusions of the jury as to facts should not be disturbed unless manifestly erroneous.” Wiley v. Travelers Insurance Company, 300 So.2d 555 at 558 (La.App. 3 Cir. 1974), writ denied, 303 So.2d 187 (La., 1974).
On review, the Court of Appeal is “. . . not entitled to substitute its findings of fact for the reasonable evaluations of credibility and reasonable inferences of fact made at the trial.” Pierre v. Landry, 341 So.2d 890 (La., 1977).

The record reflects a reásonable evi-dentiary basis for the conclusion that Duhon was contributorily negligent. Specifically, there is a reasonable evidentiary basis for the jury to conclude that Duhon had the primary responsibility of completing his task with the ground wire prior to the lineman elevating the other end of the ground wire to the level of the charged wires. The jury may well have concluded that Duhon was negligent in being in contact with the ground wire when Henry lifted it into the area of the charged wire. The jury may also have concluded that, if Duhon were delayed for any reason, he should have notified Henry and, if it were required that he be working with the ground wire after the elevation of the other end of the wire, he had the responsibility of putting on rubber gloves which were readily and easily available to him.

Therefore, the judgment of the trial court is affirmed. Costs are taxed against plaintiff-appellant.

AFFIRMED.


author: CLAIBORNE, Judge.

text:
    REALTY MART, INC., et al. v. GREENWELL COMMERCIAL PROPERTIES, INC., et al.
    No. 11109.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 26, 1977.

      M. Aubrey McCleary, Jr., Baton Rouge, of counsel for plaintiffs-appellants.
    John B. Thompson, III, Thomas K. Kirkpatrick, Baton Rouge, of counsel for defendants-appellees.
    Before LANDRY, C. J., and COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

This is a suit on a promissory note in the amount of $60,000.00 issued by Greenwell Commercial Properties, Inc., Claude Kirkpatrick, Wayne D. Swenson, and Southern Colonial Investment, Inc., to Realty Mart, Inc., and Seaborn R. Wicker, Jr. The note was issued on June 23, 1972, at the conclusion of protracted negotiations for the exchange of two Baton Rouge shopping centers by the defendants, Kirkpatrick and Swenson, with Ross E. Cox. For some time prior to that date, Cox, as owner of Highland South Shopping Center and the defendants, as owners of Colonial Shopping Center, had attempted to reach an exchange arrangement for those properties. Negotiations had been long and complex and had been broken off on several occasions. Throughout the bargaining, the defendants had been represented by Wicker, a real estate agent.

After a period of inaction, in February or March of 1972, efforts were again resumed to finalize the transaction and an agreement was reached which was signed by all of the parties on the date indicated above. As part of the closing of that agreement, the defendants issued the mortgage note sued upon here, ostensibly in payment of Wicker’s commission.

The controversy concerning its payment arose as a result of conversations between Cox and the defendants subsequent to the closing which for the first time cast some doubt upon the reason for the issuance of the note and the use of proceeds.

The record indicates that the defendants were interested in having an estimated 30,-000 square yards of paving work done at the Interstate Shopping Center. Prior to the resumption of the negotiations which led to the final agreement, Cox had agreed to do that work for $2.00 per square yard or $60,000.00. As the final bargaining for the exchange progressed, Wicker informed the defendants that Cox was not interested in taking their note for the paving but that Cox was going to pay Wicker a $60,000.00 commission, in addition to his agreed fee from the defendants of $15,000.00, and that it was Cox’s wish that they pay for the paving indirectly by making their mortgage note payable to Wicker. They were also instructed that Wicker was to do all of the negotiating and that they were not to have any direct discussions with Cox at all concerning the commission arrangement. They agreed to these conditions because of the failure of prior efforts and, at the exchange, executed the note according to Wicker’s instructions.

A letter agreement dated January 26, 1972 was prepared at Cox’s direction and signed by all the parties incorporating this arrangement including a provision for payment of $15,000 and delivery of defendants’ note for $60,000 to Wicker as a commission, and a further provision relieving Cox of payment of any commission.

The defendants further relate that in later discussions with them concerning other amounts of money which they owed him, Cox stated that he could not understand their paying Wicker such a large commission when they were not in a position to pay to Cox a much smaller amount which he was demanding. At that time, it first became known to the appellees that Cox had intended to give the $60,000.00 worth of paving for the exchange and that he had not intended to be paid for it. He then further disclosed to them that he had not promised Wicker any commission at all for the closing of the transaction.

Plaintiff contends that the $60,000.00 was a commission promised him by Cox if the exchange was made and that it was to be paid by the defendants in lieu of paying Cox for the paving; further, that Cox would not have entered into the exchange unless the defendants paid that amount for the paving.

Cox’s testimony is, however, directly contrary to that version of those events. He categorically denied that he ever promised Wicker a commission of any amount on this transaction and that he intended to include the paving as part of the exchange. Additionally, he stated that his only interest in the $60,000.00 was that, if and when Wicker was paid, Cox was to receive the money and apply it against a prior debt in excess of $60,000.00 which Wicker owed to him.

By its nature, this case must be decided primarily on the credibility of the witnesses. That factor is best judged by the trier of fact and his conclusion in that regard will not be disturbed unless manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (1973). The trial judge here found that the defenses of lack of consideration, or legal cause, and material misrepresentation, as asserted by the defendants, were proven. We affirm.

Wicker was hired by the defendants as their agent in this matter. As such, he is charged with certain responsibilities. In Texana Oil & Refining Co. v. Belchic, 150 La. 88, 90 So. 522 (1922), quoting U. S. v. Carter, 217 U.S. 286, 30 S.Ct. 515, 54 L.Ed. 769, the Supreme Court of Louisiana has said:

“ ‘The employee is duty bound not to act in antagonism or opposition to the interest of the employer. Every one, whether designated agent, trustee, servant, or what not, who is under contract or other legal obligation to represent or act for another in any particular business or line of business or for any valuable purpose, must be loyal and faithful to the interest of such other in respect to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to it. This is a rule of common sense and honesty as well as of law. The agent is not entitled to avail himself of any advantage that his -position may give him to profit beyond the agreed compensation for his service. He may not speculate for his gain in the subject-matter of his employment. He may not use any information that he may .have acquired by reason of his employment either for the purpose of acquiring property or doing any other act which is in opposition to his principal’s interests. He will be required to account to his employer for any gift, gratuity, or benefit received by him in violation of his duty, or any interest acquired adverse to his principal without a full disclosure, though it does not appear that the principal has suffered any actual loss by fraud or otherwise.’ 21 R.C.L. 825, § 10.
“The Supreme Court of the United States has said:
‘It is not enough for one occupying a confidential position who is shown to have secretly received a benefit from the opposite party to say, ‘You cannot show any fraud,’ or ‘You cannot show that you have sustained any loss from my conduct.’ Such an agent has the power to conceal his fraud and hide the injury done his principal. It would be a dangerous precedent to lay down as law that, unless some affirmative fraud or loss can be shown, the agent may hold on to any secret benefit he may be able to make out of his agency . . . ”

The evidence upon which the trial judge relied is to the effect that Wicker made at least two incorrect assertions to the defendants which were directly related to this matter. First, he stated that he was to get a $60,000.00 commission from Cox for this transaction, and second, that Cox wanted to be paid $60,000.00 for the paving but that the payment was to be made directly to Wicker as his commission, not to Cox. Further, Wicker failed to tell his clients that Cox had agreed to include the paving as part of the transaction. These misrepresentations and omissions amount to a breach of this agent’s duty to his principals from which he cannot profit.

The plaintiff also specifically told the defendants that they were not to discuss the commission arrangement with Cox, a request which was reasonable in view of past experiences. Therefore, they were required to rely solely and completely on their agent.

The District Court correctly relied on Civil Code Article 1896 which provides as follows:

“By the cause of the contract, in this section, is meant the consideration or motive for making it; and a contract is said to be without a cause, whenever the party was in error, supposing that which was his inducement for contracting to exist, when in fact it had never existed, or had ceased to exist before the contract was made.”

The record compels the conclusion that had the defendants been fully informed by their agent, as they should have been, as to Cox’s intentions, they would not have executed the note in question. Therefore, a lawful cause did not exist for the obligation and it is without effect.

For the foregoing reasons, the judgment of the District Court will be affirmed, all the costs of this appeal to be paid by the appellants.

AFFIRMED.