author: DOMENGEAUX, Judge.

text:
    Dwight SAVOIE, Plaintiff-Appellant, v. DON SIEBARTH PONTIAC, INC., et al., Defendants-Appellees.
    No. 5866.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearings Denied May 10, 1977.

      H. Ward Fontenot, Cameron, for plaintiff-appellant.
    Raggio, Farrar, Cappel & Chozen by Thomas L. Raggio, Lake Charles, for defendant-appellee.
    James L. Babin, Lake Charles, for defendant-appellee.
    Stockwell, Sievert, Clements & Viccellio by John S. Bradford, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY, and ROGERS, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Dwight Savoie, purchased a new Pontiac Firebird from defendant, Don Siebarth Pontiac, Inc. Several weeks after its purchase, the car developed a rattle, and a mechanic in Cameron, Louisiana, subsequently discovered sugar cubes in the gas tank, which were removed. About six months after the purchase the motor malfunctioned and it was completely replaced by Don Siebarth Pontiac. There was some dispute as to whether a new engine was necessary and as to whether plaintiff authorized the replacement of the engine, but after defendants General Motors (manufacturer of the car) and Don Siebarth denied warranty coverage, plaintiff paid for the replacement cost and instituted this redhibi-tory action. The district judge held for the plaintiff, and against the named defendants in solido, but only awarded a reduction in price to the extent of the amount the repairs would have cost had a new engine not been installed. Attorney’s fees were also awarded, but were cast solely against General Motors. Plaintiff has appealed asking for the complete cost of the new engine and damages for his inconvenience. Defendant General Motors Corporation has answered the appeal praying that the judgment in favor of the plaintiff be reversed at the latter’s costs. We affirm the holding of the district court.

The trial judge in his oral reasons for judgment laid out the evidentiary basis for his holding:

“The dealer’s mechanic testified that when the engine was taken apart he found the crankcase was defective in that two rod bearings and two pistons were scarred to some extent. He also noticed what he thought was a burning smell in the oil, and the witness expressed the opinion that the damage had resulted from the operation of the motor without sufficient water or oil.
There is a dispute in the testimony as to what happened at this time. The plaintiff said he was told by the service manager that the repairs would be covered either under the warranty or by the insurer, and that he wanted a new engine; whereas the service manager testified that he did not make any such statement. He said he told the plaintiff he would try to help him with his claim, either under the warranty or against the insurer, but that he made no commitment in this respect. The service manager also testified he would not have replaced the block and undertaken the extensive repairs that were actually made on the vehicle had it not been for the plaintiff’s insistence that he do so.
The preponderance of evidence is to the effect that while some additional repairs were necessary at this point and it was not then known just what caused the engine not to operate properly, it was unnecessary to. replace the engine block.
The Court concludes either that the crankshaft or some other part of the engine which was replaced when the car was finally repaired was defective or malfunctioned, and this caused the trouble.”

A trial judge may in his discretion award a reduction in price rather than rescind the sale in a suit based on redhibition. See Civil Code Articles 2541 and 2543, and Wade v. McInnis-Peterson Chevrolet, 307 So.2d 798 at 802 (La.App. 1st Cir. 1975).

The case of Canter v. Koehring Company, 283 So.2d 716 (La.1973) succinctly states the rule of law applicable to the scope of review to be exercised by an appellate court:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

A review of the record satisfies us that the district judge did not abuse his discretion in finding a defect in the motor, nor in limiting the reduction in price to the amount the repairs would have cost without the installation of a new block for the engine. The plaintiff in brief prayed for damages for his inconveniences in addition to his expenses; however, his petition did not allege any such damages nor did he prove them at trial. The court was correct in its award of attorney’s fees. A manufacturer is presumed to know of the defects of the products he sells. See Rey v. Cuccia, 298 So.2d 840 at 847 (La.1974).

For the reasons assigned above, we affirm the district court’s award at appellant’s costs.

AFFIRMED.

ROGERS, J., concurs in result only.

      . Plaintiff also joined his comprehensive insurer State Farm Mutual Automobile Insurance Company, as a party defendant alleging vandalism damages, but that claim was rejected and no appeal has been taken on that action.


source: Caselaw Access Project

author: FORET, Judge. GUIDRY, Judge,

license: Public Domain

text:
    LEE LUMBER COMPANY, LTD., Plaintiff-Appellant, v. INTERNATIONAL PAPER COMPANY, Defendant-Appellee.
    No. 5870.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused June 29, 1977.
    Polk, Foote, Randolph, Percy & Ledbetter by George M. Foote, Alexandria and Robert B. Eubank, Birmingham, Ala., for plaintiff-appellant.
    Madison, Files, Garrett, Brandon & Ha-maker by David I. Garrett, Jr., and Merwin M. Brandon, Jr., Monroe, Gold, Hall, Ham-mell, & Little and Donald Sharp, Alexandria, for defendant-appellee.
    Before GUIDRY, FORET and HEARD, JJ.
   FORET, Judge.

On September 18, 1973, plaintiff, Lee Lumber Company, Ltd., filed a petition against International Paper Company seeking to have the court declare a certain lease contract entered into between these parties on June 1, 1946, to be nudum pactum, and to be void without effect ab initio.

International filed a peremptory exception of prescription to plaintiff’s action, which was sustained by the trial court dismissing plaintiffs suit.

Plaintiff then appealed to this court in a case entitled Lee Lumber Company, Ltd., plaintiff-appellant vs. International Paper Company, defendant-appellee, bearing Docket Number 5172 of this Court. We rendered a decision on October 8, 1975, reported at 321 So.2d 42, writ refused 324 So.2d 423 (La.1976).

On that appeal, plaintiff-appellee Lee raised the issue of the contract being null for a potestative condition, lesion, lack of consideration, as well as the issue of prescription. We held at that time that the trial court had correctly ruled insofar as it held that the plaintiff’s causes of action for nullity of the lease on potestative condition, lack of consideration and lesion had prescribed but we reversed in part and remanded to the trial court for trial on the merits of the plaintiff’s allegation with regard to failure of International Paper Company to comply with the provisions of the lease concerning payment of rentals and/or taxes. This is the issue which now confronts this court.

On June 1, 1946, Lee Lumber Company, Ltd. (hereinafter referred to as Lee) and International Paper Company (hereinafter referred to as International) entered into a lease agreement by which lessee, International, was obligated under the following rental provision:

“The rental to be paid by lessee to lessor shall be the sum of Fourteen Hundred and No/100 ($1400.00) Dollars per year, payable annually for each year during the month of January of each year. Rent for the years 1945 and 1946 has been paid concurrent with the execution and delivery of this lease. The rent for the last five (5) months of this lease shall be five-twelfths (6/i2) of said rental of Fourteen Hundred and No/100 ($1400.00) Dollars . . . Lessor shall pay all taxes assessed against the lands subject to this lease during its entire term, but lessor shall not be liable for the taxes assessed against the timber and other property owned by the lessee situated on said lands. . . . ”

Subsequently, on May 6, 1950, the parties thereto amended the original lease in these respects:

“Whereas the said contract of lease and rent provided that the Lee Lumber Company, Ltd., should not be liable for taxes assessed against the timber and other property owned by International Paper Company and situated on the lands subject to the lease.
“Now, Therefore, for and in consideration of the covenants and agreements by Lee Lumber Company, Limited, contained herein, International Paper Company hereby agrees to pay to Lee Lumber Company, Limited, annually throughout the remaining term of the said lease a sum equal to the excess of the amount of the property taxes paid by Lee Lumber Company, Limited, on lands subject to said lease over the amount of the rent paid by International Paper Company under the terms of said lease. International Paper Company further agrees to make such payment promptly upon the submission by Lee Lumber Company, Limited, of Tax receipts showing payment of taxes for the year currently due on all lands affected by the said contract of lease and rent, provided said lands are assessed as ‘Cut-over pine lands’ and the timber thereon not assessed separately.”

We are asked to decide what rental payments (in what amounts and on what dates) International was obligated to pay to Lee and if International complied with its rental obligation. The determination of those issues will require this Court’s construction of the above two rental provisions.

It is this Court’s opinion -that under the 1946 lease agreement, International was to pay annual rent in the amount of $1400.00 per year in January of each year, and that Lee was to pay taxes only on the land. (Reasonably inferred is International’s obligation to pay taxes assessed as against the timber.) Under the 1950 amended lease, International was to pay $1400.00 per year in January of each year, and to pay the amount of taxes (on both land and timber) in excess of $1400.00 per year upon submission by Lee of tax receipts showing payment of taxes for the year currently due on all lands.

By stipulation of counsel, the following facts were admitted as true and correct:

At all times from the execution of the 1946 lease until the filing of suit, the taxes on both land and timber under the leased premises were assessed in the name of Lee; no demand has been made by Lee to Internationál for payment of any other amount for rent and/or taxes; from the beginning of the lease term through the year 1950, payments made each year by International to Lee were in amounts equal to the applicable annual rental for each of the said annual periods under the lease agreement of June 1, 1946; and beginning with the year 1951, all payments made by International to Lee were in amounts equal to the total taxes assessed against and paid by Lee for the previous calendar year.

Thus, the determination of two legal issues is decisive of the outcome of this case: (1) Could Lee, in 1973, petition for the termination of the lease for International’s failure to pay taxes for the years 1946 to 1950? (2) Could Lee, in 1973, petition for termination of the lease for International’s failure to timely pay its annual rental of $1400.00 per year from 1951 to 1973?

The trial court held that plaintiff Lee was estopped from claiming a cancellation of the lease and pretermitted a resolution of the aforestated issues. We agree. As in this case, where a lessor, by his conduct — no demand for taxes during the years 1946 to 1950; accepting of rental payments for the years 1951 through 1973, after the date on which they were due — creates a custom by which the lessee is led into a false sense of security that it has complied with its obligations as lessee, the lessor thereby waives his right to cancel the lease and is estopped from so doing. Murphy Oil Corp. v. Gonzales, 316 So.2d 175 (La.App. 4 Cir. 1975), writ refused, 320 So.2d 558 (La.); Himbola Manor Apts. v. Allen, 315 So.2d 790 (La.App. 3 Cir. 1975); Blanchard v. Shrimp Boats of La., Inc., 305 So.2d 748 (La.App. 4 Cir. 1974); Moore v. Bannister, 269 So.2d 291 (La.App. 4 Cir. 1972); Farmers Gas Co. v. LaHaye, 195 So.2d 329 (La.App. 3 Cir. 1967).

The trial court found that plaintiff, Lee Lumber Company, because it was the party which inaugurated the practice for the determination and payment of amounts due under the lease agreement, as amended, was estopped from demanding the cancellation and voidance of the lease, having inaugurated and carried out the practice in question for all these years (1950 to 1973). The trial court found that Lee Lumber Company could not be heard to say that this practice was improper, and that the lease agreement in question should be cancelled.

It is noteworthy that the timber and the land involved in this lawsuit were never separately assessed. Counsel for plaintiff admitted at oral argument before us that it would be virtually impossible to go back and reconstruct a separation of the taxes on the land separate from that on the timber. Inasmuch as International paid all of the taxes assessed against Lee Lumber Company, who can say how much was for taxes on timber and how much was for taxes on land? We are of the opinion that it is no concern to Lee Lumber whether International paid taxes on timber or not since International owned the timber. It is noteworthy that from 1950 through 1971, International reimbursed “taxes” to Lee Lumber in the amount of $105,814 for an average of $4,809.00 per year.

We are of the opinion that the trial court correctly applied the doctrine of equitable estoppel. For at least twenty-two years Lee Lumber Company accepted rental payments after the date on which they were due, and at a rental figure which it submitted to International. No other demand or notice of default was made by Lee Lumber on International. In our judgment, Lee Lumber created a custom by which the lessee, International, was led into a false sense of security that it was complying with its obligations as lessee. Consequently, we hold that the lessor thereby waived its right to cancel the lease on the grounds which it alleges, and is estopped from so doing.

For the foregoing reasons, the judgment of the trial court is affirmed, and all costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

GUIDRY, J., concurs and assigns written reasons.

GUIDRY, Judge,

concurring.

I do not find it necessary to rely on estoppel in finding for the defendant-appel-lee, although I agree with the majority that if reliance thereon was necessary the plea should be sustained. Rather, I concur in the result finding that International has complied with its rental paying obligation under the lease which plaintiff now seeks to cancel.

I do not consider the original contract as imposing any obligation on International in favor of Lee Lumber Company, that the former pay the taxes on the timber. The original contract provides for payment of the taxes assessed against the lands by Lee. The contract further stipulates that Lee shall not be liable for the taxes assessed against the timber and other property owned by the lessee situated on said lands. This stipulation, in my opinion, does not give rise to a reasonable inference, that International obligated itself to Lee that the taxes bn the timber would be paid in default of which the contract could be can-celled.

Standing timber is property susceptible of being acquired separately from the land on which it grows and is assessable separately to the owner of the timber, when the two estates, i. e., fee and timber, are subject to different ownerships. LSA-R.S. 9:1103; Globe Lumber Company v. Lockett, 106 La. 414, 30 So. 902 (1902); Brown v. Hodge-Hunt Lumber Company, 162 La. 635, 110 So. 886 (1927). LSA-R.S. 47:1958. International’s obligation to pay the taxes on the timber estate, owned separately by it, ran in favor of the taxing authority and not Lee Lumber Company. In my opinion, International’s obligation under the original lease was to pay an annual rental of $1400.00 per year. The evidence indicates that International faithfully made these rental payments.

Under the 1950 lease amendment International assumed the additional obligation to pay a sum equal to the excess of the amount of the property taxes paid by Lee, on lands subject to the said lease over the amount of the rent paid by International provided said lands are assessed as “Cut-over pine lands and the timber thereon is not assessed separately”. The majority correctly finds that under the amended lease:

“International was to pay $1400.00 per year in January of each year, and to pay the amount of taxes (on both land and timber) in excess of $1400.00 per year upon submission by Lee of tax receipts showing payment of taxes for the year currently due on all lands.”

The evidence shows that International faithfully performed this obligation until Lee Lumber Company (in the year 1973) refused to accept further tender of such annual payments contending that the lease was null for having been breached by International. In my opinion, International has complied with its rental paying obligations under the subject lease. Accordingly, I concur in the result reached by the majority-


author: GUIDRY, Judge.

text:
    ADD CHEMICAL COMPANY, Plaintiff-Appellant, v. GULF-MARINE FABRICATORS, INC., Defendant-Appellee.
    No. 5872.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused July 1, 1977.
    Litton, Pierce & Malone by A. Clay Pierce, Jr., Baton Rouge, for plaintiff-appellant.
    W. Paul Hawley, Lafayette, for defendant-appellee.
    Before GUIDRY, FORET and HEARD, JJ.
   GUIDRY, Judge.

Plaintiff, Add Chemical Company (hereinafter referred to as Add) instituted this action to recover damages for the loss it sustained when certain chemical products it was storing in tanks leased from defendant leaked from the said tanks. Defendant Gulf-Marine Fabricators, Inc. (hereinafter referred to as Gulf), answered the plaintiff’s petition, admitting only that an “as is” lease of its storage tanks was negotiated with plaintiff and that plaintiff suffered a loss of the material stored therein. Defendant generally denied all other allegations of plaintiff’s petition. Defendant filed a re-conventional demand against plaintiff seeking lease payments due and attorneys fees. The trial court rendered judgment dismissing plaintiff’s suit and granted judgment on the reconventional demand in favor of Gulf for one month rental in the amount of $1500.00 but made no award of attorneys fees. Add appeals. Gulf has neither appealed nor answered the appeal of Add.

The trial court found that there was a lease contract existing between plaintiff and defendant under which agreement the lessee assumed responsibility for the condition of the storage tanks. Plaintiff contends that the trial court erred in finding that the lease was an “as is” lease. Plaintiff also assigns as error the trial court’s failure to find that the defendant knew or should have known of the leakage problems in the tanks at the time of the agreement. Appellant does not question the correctness of the trial court’s judgment on the recon-ventional demand.

A review of the facts show that Gulf owned a battery of large storage tanks which were located at its facility near New Iberia, Louisiana and that Add, in December of 1974 contacted Gulf in regards to leasing these storage tanks. Add needed storage space for the holding of certain mixed glycols in liquid form which were produced at its plant in Abbeville, Louisiana.

Claude Harkins, executive director of Add, who was in charge of locating the additional storage tanks, contacted Jack Merille, Vice-President of Gulf, and set up an appointment to go to New Iberia to inspect the tanks. The inspection was held on December 30, 1974, there being present, Phil Nugent, President of Gulf, Jack Me-rille and Claude Harkins. At this time Add negotiated for the use of four storage tanks: One large 6600 barrel tank, one small 500 barrel tank and two 1000 barrel tanks. All of the tanks were bolt constructed, closed steel containers. A physical inspection of the tanks by Harkins revealed that the large 6600 barrel tank, which had holes in the roof, and the two 1000 barrel tanks which had some crude oil remaining in them, would be satisfactory. There was no evidence of any oil leakage around the tanks. Defendant agreed to repair the roof of the large tank as well as clean the remaining tanks. It was also agreed that Bob Naylor, Add’s plant manager in Abbe-ville, would come to the site later and examine the tanks to determine if the product could be stored therein without contamination. The parties agreed on a monthly rental of $1550.00 for a period of one year.

Shortly following these negotiations, which occurred in the last part of December, 1974, Gulf sent Add a proposed lease agreement. The agreement forwarded to Add’s Houston office was signed by Gulf’s President, Phil Nugent. A copy of this agreement was introduced in evidence as plaintiff’s exhibit 1. To summarize, the agreement provided for the lease of the storage tanks located at Gulf’s facility in New Iberia for a term of one year commencing on January 1,1975 in consideration of a monthly rental of $1550.00. The lease further provided that the “Lessor will not be responsible for damages caused by leaks in the roof, by bursting pipes by freezing or otherwise, or by any vices or defects of the leased property, or the consequences thereof.” Add received the proposed lease from Gulf but never signed the same, nor did Add ever contact Gulf regarding its provisions. The lease remained in Add’s possession.

On January 20, 1975 Merille contacted Harkins in Houston to inform him that one of the tanks was ready for inspection. Har-kins thereafter contacted Bob Naylor in Abbeville to inform him of the same. In response to this Naylor traveled to New Iberia to check the tank however, he was unable to get into the facility due to the fact that the roads into the tank battery were impassable. Harkins was again contacted by Merille on February 4, 1975 at which time he was told that the two 1000 barrel tanks were ready. On February 5, 1975 Naylor again went back to New Iberia to examine the tanks. On this occasion Naylor did physically inspect the tanks. Naylor testified that he climbed down into one of the 1000 barrel tanks and after closing the hatch could not see the light of day. Closer inspection with a flash light revealed no evidence of corrosion, wear, or abrasion. After visually inspecting the outside of the other tanks he could see no holes or dents or tears in the surface of any of the tanks. Finding the tanks to be satisfactory Naylor made arrangements for Matalack Inc., to haul the glycol from tankage in Abbeville to New Iberia. Three loads were made on February 6, 1975 and two on the following day, February 7, 1975. All of the loads were pumped into one of the 1000 barrel tanks by the Matalack truck driver.

On February 7,1975 Naylor went to New Iberia to check on the operation and to examine the 500 barrel tank. Upon arriving at the site Naylor saw that the 1000 barrel tank into which the glycol had been pumped was leaking. He stated that you could see the liquid flowing from underneath the tank. The leakage was being contained by a dyke or firewall which was built around the circumference of the tank. At this time Naylor had the remaining liquid in the 1000 barrel tank pumped into the 500 barrel tank. Naylor returned to the site on Monday, February 10, only to see that the 500 barrel tank was also leaking. Having no other place to store the 4000 gallons of liquid remaining in the leaking tank it was all allowed to dissipate in the sump around the tank.

Plaintiff claims a loss of 288,600 pounds of mixed glycols at a cost of 11.5 cents per pound or $33,189.00. Additionally plaintiff seeks recovery for the expense of transporting the glycol from Abbeville to New Iberia which amounted to the sum of $717.37.

The testimony of Phil Nugent and Jack Merille indicates that the tanks in question were first used by Gulf in the early part of 1973 to store diesel fuel. Thereafter, in late 1973, the tanks were leased to Earl Bishop until December of 1974 for the storage of crude oil. Both Nugent and Merille testified that they had no knowledge of any leaks in the tanks, nor had they been informed of any leaks in the tanks. They stated that Earl Bishop had never complained about any leaks in the tanks.

Merille testified that at the time of the negotiation on December 30, 1974 he told Harkins, the Add representative that there might be a problem storing glycol in these bolted tanks, to which Harkins responded that he had no doubt his product would stay in the tanks. Nugent also at the negotiations, remembered Merille’s conversation with Harkins, although Harkins testified he had no recollection of this discussion.

Merille testified that the problem in storing glycol in bolted tanks arises from the fact that glycol is heavier than oil or water. In this regard Add’s plant manager, Naylor, testified that there was a difference between a welded and a bolted tank in that in the bolted tanks you have to make sure the gaskets are in good shape, otherwise the tanks will leak.

The testimony of Harkins and Charles Duesing, President of Add, indicates that in the past they had never experienced any particular problem in storing glycols in bolted tanks. However, Harkins did state that it was slightly harder to contain glycol than other materials.

The record also shows that just prior to the negotiations with Add, Gulf had been contacted by Maurice Keller in regards to leasing the tanks. Keller at the time of his negotiations with Gulf also contracted with Gulf to purchase the crude oil remaining in the tanks. Keller admitted that he removed the remaining crude oil from the tanks and had subsequently stopped payment on the check issued to Gulf for the oil. Keller never leased the tanks. Keller who testified on behalf of the plaintiff had previously done transportation work for plaintiff. Much of Keller’s testimony regarding the alleged leaking problem in the tanks was properly excluded by the trial court as hearsay. Under cross-examination Keller positively testified that his inspection of the tanks revealed no problem or evidence of leaks, nor did he have any personal knowledge of the tanks ever leaking. Keller did testify that his inspection of the tanks indicated a possible gasket problem, but added that this was not uncommon.

Although Add never executed the written lease agreement forwarded to it in early January, 1975, it does not seriously question the trial court’s finding that a lease agreement existed between Add and Gulf. Like the trial court we determine that a lease agreement did exist between plaintiff and defendant.

A lease may be made either by written or verbal contract. R.C.C. Article 2683. The essentials of a “lease” are the thing, the price and the consent. R.C.C. Article 2670. In the instant case all the essentials for a valid lease are present. The parties agreed upon the thing and the price. The element of consent is clearly evidenced by the actions of the parties. R.C.C. Articles 1816 and 1817.

Having determined that a valid agreement of lease existed between Add and Gulf, the issue presented for determination is whether by this agreement the lessee assumed responsibility for the condition of the storage tanks. If so, the lessor would not be liable for injury caused by the defect, unless it is found that the lessor owner knew or should have known of the defect, or received notice thereof and failed to remedy it within a reasonable time.

LSA-R.S. 9:3221 provides:

“The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.”

Plaintiff, in denying that it was its intent to assume the responsibility for the condition of the storage tanks, relies principally on the testimony of Claude Harkins that no mention was made to him of an “as is” lease at the negotiations on December 30, 1974. To the contrary, Phil Nugent, President of Gulf testified that he told Add’s representative, Harkins, during these negotiations that Add would have to assume the responsibility for the condition of the tanks. Plaintiff further offered the testimony of its President, Charles Duesing who stated that he would have never signed an “as is” lease and for that reason the proposed lease received from Gulf in early January was totally unacceptable. Nevertheless the testimony of both Harkins and Duesing indicates that they went ahead and used the tanks knowing full well at the time that Gulf had taken the position that Add was to assume responsibility for the condition of the tanks. Further, Harkins, who had spoken with Merille on two or three occasions after receiving the proposed lease admitted that he never brought to Gulf’s attention Add’s disagreement with the lease provisions. Likewise Duesing never contacted Gulf in regards to the lease being unacceptable.

R.C.C. Article 1816 provides in pertinent part as follows:

“Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract . . .”

R.C.C. Article 1817 provides in part as follows:

“Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation;

As stated hereinabove the trial court found that under the lease agreement between plaintiff and defendant the plaintiff agreed to assume the responsibility for the condition of the storage tanks. In this connection R.C.C. Article 1818 provides:

“Where the law does not create a legal presumption of consent from certain facts, then, as in the case of other simple presumptions, it must be left to the discretion of the judge, whether assent is to be implied from them or not.”

We find ample evidence in the record to support the trial court’s conclusion that plaintiff assented to assume the responsibility for the condition of the storage tanks. Suffice it to say that the plaintiff knew of defendant’s express intention to lease the tanks “as is” and that plaintiff did in fact, without any expression of its intent to the contrary, lease and use the tanks.

Although we have hereinabove determined that the lease existing between the plaintiff and defendant provided for the lessee to assume responsibility for the condition of the storage tanks the lessor may still be held liable for the injury caused by the defect if it be found that the lessor knew or should have known of the defect in the, storage tanks and failed to remedy it. LSA-R.S. 9:3221.

Our review of the record reveals that there is not a scintilla of credible evidence to support a conclusion that the lessor defendant knew or should have known that the tanks in question leaked. To the contrary the evidence shows that the defendant, who had leased the tanks for crude oil storage up until December 1974, had neither experienced nor been informed of any leakage problems in the tanks. Further the testimony of all the parties indicates that a physical inspection of the tanks on December 30, 1974 showed them to be in satisfactory condition.

We agree with the trial court finding that the evidence does not support the conclusion that the defendant knew or should have known of the leakage problems in the tanks at the time of the agreement. Accordingly we find that the plaintiff is not entitled to recover damages from defendant for the loss of the glycol which it had stored in the leased tanks.

Although appellant does not specifically take issue with the trial court’s award to Gulf, plaintiff in reconvention, of the sum of $1500.00 for one month rent, we find this to be error.

The record leaves no doubt but that the tanks, as leased, were not suitable for the containment of glycols. Although, under the circumstances of this case, the lessor was without fault (the lessee having assumed responsibility for the condition of the tanks) the lessee is entitled to an annulment of the lease because the leased property was not suitable for the purpose intended. R.C.C. Article 2699; Truck Equipment Company v. O’Reilly d/b/a Port Distributing Company, 142 So.2d 184 (La.App. 4th Cir. 1962). The lessee being entitled to an annulment of the lease, it must necessarily follow that Gulf, plaintiff in reconvention, is not entitled to recover the rentals provided for therein.

For the above reasons we reverse the trial court insofar as it awards judgment in favor of Gulf, plaintiff in reconvention, for the principal sum of $1500.00, and now order that the demand of Gulf, in reconvention, be dismissed with prejudice. In all other respects the judgment of the trial court is affirmed. The costs of this appeal are to be borne equally by appellant and appellee.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . As quoted above the lease provided that the lessor would not be responsible for any vices or defects of the leased premises, or the consequences thereof.


text:
    Lenes JOUBERT, Plaintiff-Appellee, v. STATE of Louisiana Through the Louisiana STATE PARK AND RECREATION COMMISSION, Defendant-Appellant.
    No. 5874.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.

      Frank P. Trosclair, Jr., Opelousas, and William R. Carruth, Jr., Baton Rouge, for defendant-appellant.
    Fusilier, Pucheu & Soileau by A. Gaynor Soileau, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

This matter was consolidated with the matter entitled Vernon Mire versus State of Louisiana through the Louisiana State Park and Recreation Commission, 345 So.2d 225, our Docket Number 5875, for purpose of trial in the district court and on appeal. The issues involved are similar in each case and evolve from a common set of facts. For the reasons hereafter set forth we decide the issues in both suits in this opinion but will render a separate decree in the case above referred to.

Plaintiffs in both suits seek the recovery of crop damages occasioned when their respective crops of soy beans and milo allegedly flooded as a result of large volumes of water which flowed over and through the dam at Chicot State Park lake on September 5, 1973 and succeeding days. The trial court determined that a large portion of plaintiffs’ planted crops were lost as a result of flooding and that the defendant was responsible for such damages which the trial court fixed as follows:

“The average price for beans in the area at the time of the loss was $5.00 to $5.50 per bushel and the average yield 26.5 bushels to the acre. However, they (Jou-bert and Mire) were contracting beans for $8.00 per bushel. The average price for milo or grain sorghum was $3.09 pert cwt. The average production was 3300 pounds.
Vernon Mire lost approximately 2300 bushels of soybeans and approximately 325,000 pounds of milo or grain sorghum. Lenes Joubert lost approximately 3,000 bushels of soybeans and approximately 500,000 pounds of milo or grain sorghum. Mr. Mire suffered a loss of $18,400 worth of beans and $10,042.50 worth of milo. Mr. Joubert suffered a loss of $24,000.00 worth of beans and $15,450.00 worth of milo.
The court feels that the low lying lands planted by petitioners near the bayou comprise approximately 50% of the property petitioners farmed and this area quite probably would have been flooded although the gates had not been opened and it is therefore the opinion of this court that an award of $14,221.25 to Mr. Mire and an award of $19,725.00 to Mr. Joubert to be justified under the circumstances.”

Defendant has appealed. Plaintiffs have neither appealed nor answered the appeal of defendant.

The following facts are without dispute. The State of Louisiana is the owner of the land area known and designated as “Chicot State Park”. Within the park area is a large “man made lake” or large impoundment of water contained within levees known as “Chicot Lake”. The lake area was constructed and is maintained by the State through the aforesaid Commission. The level of water in the lake is controlled by a dam located at the conflux of the lake and Bayou Chicot. The top of the dam is approximately one foot lower than the top of the levees. Within the dam is located two gates each 5' X 5'. Percy J. Fontenot is the owner of certain farm lands just east of and adjoining the park, which farm lands border on Bayou Chicot. During the crop year 1973 Mr. Fontenot, under a verbal lease or share-crop agreement, allowed Jou-bert and Mire to farm these lands in soy beans and milo. Under the aforesaid agreement Fontenot was to receive one-fifth or 20% of the crops grown and harvested and Joubert and Mire were to receive the balance. During the months of July and August, 1973, the area in and around the park was subjected to a large amount of rain, none of which caused plaintiffs’ crops to flood, however, the water level in the lake became extremely high. During the first days of September extremely heavy rains buffeted the area and the water level of the lake rose so high that by the 5th day of September, 1973, a large volume of water, estimated from 13" to thirty-nine (39) inches in height, was flowing over the dam into the already swollen Bayou Chicot. On the latter date the acting superintendent of the park, a Mr. Gerald Johnson, caused one of the dam floodgates to be opened about S' which opening permitted an additional volume of water to flow out of the lake and into Bayou Chicot. The gate was allowed to remain open until about noon on the 6th day of September. Beginning with September 5, 1973 and for several days thereafter about two-thirds in area of the lands farmed by Joubert and Mire were flooded. The depth of the water on the Fontenot property was estimated at eighteen inches. As a result of the flooding plaintiffs lost the greater portion of their respective crops the exact amount thereof being disputed.

On the basis of the above facts, which as aforesaid are substantially without dispute, the trial court rendered judgment in favor of plaintiffs. Defendant asserts that the trial court erred in the following particulars:

(1) In finding that the opening of the flood gate on September 5,1973 constituted negligence which proximately caused the crop damages. In this connection defendant additionally asserts that the trial court erroneously disregarded the uncontradieted testimony of its expert witness that the opening of the flood gate had no appreciable effect upon the flooding of the Fontenot property.

(2) In failing to find that plaintiffs were guilty of contributory negligence because they knowingly planted agricultural crops in an area which frequently floods.

(3) In rendering judgment in part on testimony received in evidence, over objection by defendant, contrary to that set forth in plaintiffs’ pleadings.

(4) In awarding damages based upon their full ownership of the crops although it was established that Percy Fontenot was owner of 175th thereof.

There is no merit in defendant’s primary contentions. This is not an action to recover damages ex delicto rather it is a suit for damages resulting from a proprietor’s violation of the obligation imposed by R.C.C. Article 667 which reads as follows:

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

In such an action fault or negligence is not a necessary element for recovery. As stated in Hero Lands Company v. Texaco Inc., 310 So.2d 93, 97 (La.1975):

“As expressed in the Article, the principle is a limitation the law imposes upon the rights of proprietors in the use of their property. It is a species of legal servitude in favor of neighboring property, an expression of the principle of sic utere. An activity, then, which causes damage to a neighbor’s property obliges the actor to repair the damage, even though his actions are prudent by usual standards. It is not the manner in which the activity is carried on which is significant; it is the fact that the activity causes damage to a neighbor which is relevant. Chaney v. Travelers Insurance Company, 259 La. 1, 249 So.2d 181 (1971). The article expresses, as this Court has often stated, a doctrine of strict liability which does not depend upon deliction. Craig v. Montelepre Realty Co., supra [252 La. 502, 211 So.2d 627 (1968)]; Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955); Devoke v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816 (1947). It does not follow, however, that Article 667 is the only basis upon which neighbors may seek redress for damages caused by proprietors in the vicinity. Article 2315 may also serve as a basis for recovery under appropriate circumstances. But when this authority is relied upon, fault must be proven. Article 2315 contemplates responsibility founded on fault, namely, negligence or intentional misconduct, including abuse of rights. The notion of fault in this context is conduct which violates the standard of reasonableness in the community, an act that a careful and prudent person would not undertake. By contrast, recovery under Article 667 may be granted despite the reasonableness and prudence of the proprietor’s conduct, when the work he erects on his estate causes damage to his neighbor. Lombard v. Sewerage & Water Board, 284 So.2d 905 (La.1973).”

By the same token, since negligence is not a factor, contributory negligence is not a defense. As stated in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133, 140 (La.1971):

“The defense of contributory negligence which is urged here presupposes original negligence on the part of the defendant. This case is not a case where negligence is an ingredient of fault, and contributory negligence is not a defense.”

In the instant case the State constructed and maintains the reservoir and dam structure in Chicot State Park. Fon-tenot owns the farm lands which adjoin this park which lands were being cultivated by plaintiffs under an agreement with Fonten-ot. Clearly under the circumstances plaintiffs and defendant were neighbors within the contemplation of R.C.C. Article 667. The trial court held that the work erected by the State caused damage to plaintiffs when the flood gate was opened allowing large volumes of water to escape the reservoir which in turn caused flooding of plaintiffs’ crops. Under such circumstances defendant is responsible in damages to plaintiffs even though the State’s actions may have been reasonable or prudent under the circumstances. Hero Lands Company v. Texaco Inc., supra.

Defendant asserts that the trial court’s conclusion that the opening of the gates caused the flooding is manifestly erroneous and completely ignores and rejects the testimony of defendant’s expert. It is true that the trial court’s conclusion rejects the conclusion of defendant’s expert and that there is no contradicting expert testimony in the record. However, it is equally true that the conclusion of Mr. Meyer is completely contrary to the testimony of lay eyewitnesses to the effect that plaintiffs’ crops flooded only after the gate was opened. The trial court accepted the testimony of these witnesses over the theoretical conclusion advanced by defendant’s expert. In his written reasons the trial judge stated:

“The court is of the opinion that the opening of the gates caused a much faster rise of water in the already swollen bayou Chicot into which the runoff, flows and the surrounding lands planted by petitioners and they became quickly inundated.”

We find no manifest error in the trial court’s ultimate conclusion as to the cause of the flooding. The theory advanced by an expert witness need not be accepted if it is contrary to the positive testimony of eyewitnesses. Mayon v. Delta Well Logging Service Inc., 167 So.2d 418 (La.App. 1st Cir. 1964), writs refused December 1, 1964, and cases therein cited.

Defendant next complains that the trial court erred in admitting evidence over timely objection, as to the actual amount of crops saved and the price received therefor which was contrary to the estimated amounts for these items which were set forth in plaintiffs’ pleadings. Defendant asserts that it was prejudiced by the admission of this evidence as it bore upon the plaintiff’s ultimate net loss of crops and the value thereof. Although the evidence received as to the amount of crops saved and the value thereof is somewhat at variance with the estimated amounts for these items as set forth in plaintiffs’ petitions the total crops claimed to have been lost and the value thereof as prayed for by petitioners is far in excess of that allowed by the trial court. Under these circumstances we discern no error in the trial court’s allowing and considering evidence as to actual amounts. It is well settled that technical rules of pleading no longer obtain and all doubt should be resolved in favor of the pleader to the end that substantial justice may be achieved. LSA-C.C.P. Article 854; Glass v. Vista Shores Club, 221 So.2d 304 (La.App. 4th Cir. 1969) and cases therein cited.

Defendant finally contends that the quantum of the trial court award is excessive in that the damages awarded were based upon plaintiffs full ownership of the crops lost although it is established by the record that Percy Fontenot was owner of one-fifth thereof. We find merit in this contention.

The record clearly establishes that Percy Fontenot owned one-fifth of the crops lost. Mr. Fontenot was not a party to this suit. Plaintiffs have no right of action to sue and recover for the damages sustained by Mr. Fontenot. Miller v. Texas & P. Ry. Co., 148 La. 936, 88 So. 123 (1921). The trial court award clearly contemplates that plaintiffs were owners of the entirety of the crops grown on the flooded lands. Accordingly, we will reduce the trial court award by twenty per cent. Except as amended said judgment will be affirmed.

For the above and foregoing reasons the judgment of the trial court is amended so as to reduce the award to plaintiff to the principal sum of $15780.00 and except as amended same is affirmed. Defendant-appellant is to be taxed with such costs of this appeal as are assessable under LSA-R.S. 13:4521.

AMENDED AND AFFIRMED.

      . Defendant’s expert testified that the additional volume of water which was allowed to flow into Bayou Chicot upon the opening of this gate was insignificant and did not cause the plaintiffs’ crops to flood, they being already flooded as a result of the volume of water pouring over the reservoir and into Bayou Chi-cot. On the other hand plaintiffs and their witnesses all testified that the additional volume of water pouring through this opened gate caused the flooding. The trial court concluded that the opening of the gates caused a much faster rise in the already swollen bayou which caused the flooding.

      . At trial the defendant presented the expert testimony of Mr. Hirsch Meyer, a graduate civil engineer with a specialty in hydraulic engineering. Mr. Meyer testified that the additional volume of water flowing through the opened gate was insignificant when compared with that flowing over the dam and that if not already flooded when the gate was open that plaintiffs’ property would have flooded to the same extent.


text:
    Vernon MIRE, Plaintiff-Appellee, v. STATE of Louisiana Through the Louisiana STATE PARK AND RECREATION COMMISSION, Defendant-Appellant.
    No. 5875.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Frank P. Trosclair, Jr. and William R. Carruth, Jr., Baton Rouge, for defendant-appellant.
    Fusilier, Pucheu & Soileau by A. Gaynor Soileau, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion ease of Lenes Joubert versus State of Louisiana through the Louisiana State Park and Recreation Commission, 345 So.2d 220, our Docket Number 5874, the judgment of the trial court is amended so as to reduce the award to plaintiff to the principal sum of $11377.00. Except as amended said judgment is affirmed. Defendant-Appellant is to be taxed with such costs of this appeal as are assessable under LSA-R.S. 13:4521.

AMENDED AND AFFIRMED.


author: FORET, Judge.

text:
    Clement ROMERO et al., Plaintiffs-Appellants, v. Bernice Broussard TRAHAN, Defendant-Appellee.
    No. 5881.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused June 30, 1977.

      Richard J. Bertrand, Lafayette, for plaintiffs-appellants.
    Armentor & Wattigny by Minos H. Ar-mentor, New Iberia, for defendant-appellee.
    Before HOOD, FORET, and HEARD, JJ.
   FORET, Judge.

In this case the District Judge has written an excellent opinion which we adopt as our own:

“The exception of prescription arises from a suit contesting the validity of a testament. The plaintiffs are a brother and nephew of the decedent. The defendant is the adopted daughter and universal legatee of said decedent.
“Reviewing the facts of the case, Noemie Romero died in New Iberia on December 29, 1966. Her testament, a nuncupative will by private act, dated July 14, 1966, was admitted for probate on January 10, 1967. On February 1, 1967, Clement Romero, plaintiff in the instant action, filed suit to have said will declared invalid on the grounds that Noemie Romero did not have the mental capacity to con-fect a testament. On October 8, 1967, said Clement Romero moved to dismiss his suit with prejudice. The motion was signed by the district judge on that date. On December 21, 1967, defendant Trahan was placed in possession of decedent’s property, pursuant to a judgment of possession.
“The plaintiffs in the present action filed suit on April 27, 1976, based on a statement by one of the attesting witnesses to the will in question. The witness stated that the testatrix lacked proper mental capacity to confect a will. The defendant filed exceptions of prescription, res judi-cata and no right of action.
“The exception of prescription is based on Civil Code Article 3542, which in pertinent part reads:
‘The following actions are prescribed by five years: That for the nullity or reeision of contracts, testaments or other acts.’
“The testament in question was admitted for probate on January 10, 1967. The instant suit was filed on April 27, 1976, a period of more than nine years from probate of the will. Prescription on an action to annul a testament begins to run on the date the will was probated. Perrodin v. Clement [La.App.], (254 So.2d 704). Prescription normally would be interrupted by the filing of a suit, L.S.A. C.C. Art. 3518, but the plaintiff’s motion to dismiss his suit of February, 1967, had the effect of treating the interruption as having never happened. L.S.A. C.C. Art. 3519. Therefore, prescription began to run as of the date of probate of said will. “ ‘Prescription runs against all persons unless they are included in some exception established by law.’ L.S.A. C.C. 3521. The plaintiffs urge that they are excepted from prescription on the theory of ‘contra non valentem agere non currit praescriptio.’ In support of their contention, the plaintiffs relied on the holding of Cox v. Lea’s Heirs [110 La. 1030] (35 So. 275), where the appellate court overruled the exception of prescription and remanded the matter to the district court to determine Mrs. Lea’s mental condition at the time of making the alleged testament. The Court finds thé facts of the instant case distinguishable from those in Cox, supra. The testatrix in Cox was unconscious and speechless, unable to even affix her mark with the aid of the notary. In considering those facts and allegations, the Court found that there, in fact, had never been a will, and that fraud and forgery were resorted to. In the instant case, the plaintiffs’ allegations are that there was a will and that the testatrix did affix her mark. The plaintiffs have also alleged that medical testimony confirmed that testatrix had lucid intervals in which she had sufficient mental capacity to confect a will.
“Plaintiffs contend that the information as to the decedent’s mental capacity was withheld from them. This is not the case. The newly discovered evidence is the alleged testimony of a subscribing witness to the testament and the probate of said testament. It is evident that the recanting witness has only now come forth because a prior will has been found which names the witness as a legatee.
“In the case of Cox v. Von Ahlefeldt, [105 La. 543], (30 So. 175) it was said that those who claim exemption from prescription by reason of ignorance resulting from fraud must allege and show that such ignorance was neither willful nor negligent. There must be reasonable diligence on the part of plaintiff and the means of knowledge are the same in effect as knowledge itself. Jackson v. Zito, [La.App.], (314 So.2d 401).
“The subscribing witness was available for plaintiff to question about the authenticity of the testament at the time of probate and at all times within the subsequent five years. That plaintiff has failed to secure her testimony prior to this time, is indicative of his want of diligence in obtaining knowledge concerning the confection of the testament in question.
“For the above and foregoing reasons, it is the order of this Court that the exception of prescription is hereby sustained, dismissing plaintiffs’ suit. All costs of these proceedings to be borne by plaintiffs.”

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

AFFIRMED.

      . Writ refused 260 La. 604, 256 So.2d 642.

      . See also Israel v. Smith, 302 So.2d 392 (La.App. 3 Cir. 1974); writ refused La., 303 So.2d 183.


author: HEARD, Judge.

text:
    Louis Allen CORMIER, Plaintiff-Appellant, v. Mary Trixie CORMIER, Defendant-Appellee.
    No. 5882.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Edwards, Stefanski & Barousse, by Larry C. Dupuis, Crowley, for plaintiff-appellant.
    Norwood Marcy Lyons, Crowley, for defendant-appellee.
    Before HOOD, FORET and HEARD, JJ.
   HEARD, Judge.

Mary Trixie Cormier obtained a legal separation from the plaintiff, Louis Allen Cor-mier, on January 15, 1970. Child support was awarded to Mary Trixie Cormier in the amount of $600.00 per month. The plaintiff, Louis Allen Cormier, petitioned for an absolute divorce and it was granted on October 26, 1972. The child support payments were continued until June 1975, when the child reached the age of majority and finished school.

During the first part of 1976, plaintiff terminated alimony payments to defendant, resulting in a contempt rule. Plaintiff reconvened with a rule to terminate alimony and, alternatively, to have alimony reduced because of a recent injury resulting in his inability to work. The district court, after hearing all of the evidence, denied the rule to terminate alimony but did grant a reduction in alimony payments to $85.00 per month until Louis Allen Cormier resumed work. It is from the court’s denial of the rule to terminate alimony that plaintiff appealed.

The evidence adduced during the trial showed that the defendant owned a home valued at $36,000.00 in 1968, had savings in the bank in the amount of $14,476.93, and a checking account amounting to $1,387.32. It was shown that the plaintiff had remarried and earned between $20,000.00 and $30,000.00 per year, paid $556.00 per month on a house, car and furniture notes; and, lived for six months of the year in Nigeria where he was employed and his living expenses were paid by his employer.

The general rule, as stated in Vestal v. Vestal, 216 So.2d 386 (La.App. 3 Cir.1968), is that “a party subsequently seeking a modification of an initial award has a burden of proving justification for the change due to an alteration in the financial condition of one of the parties.” Holman v. Holman, 219 La. 138, 52 So.2d 524 (1951). In the present case, the only change in circumstances alleged by the plaintiff is that he was injured and at the present time was receiving less income than he had received in the past. And, for this reason, the trial judge granted a reduction in his alimony until he was again in good health.

The court further stated in Vestal v. Vestal “the trial court is vested with much discretion in fixing the amount of alimony and his award will not be disturbed on review unless there has been a clear abuse of this discretion or manifest error in his factual appreciations.” Street v. Street, 205 So.2d 839 (La.App. 2 Cir. 1967); McMath v. Masters, 198 So.2d 734 (La.App. 3 Cir. 1967).

In the present case, we find no abuse or manifest error and for that reason we will not disturb the judgment of the district court. Accordingly, the judgment of the trial court is affirmed. All costs of this appeal are taxed to plaintiff-appellant.

AFFIRMED.


author: HOOD, Judge.

text:
    Margaret Stafford CHAMPAGNE, Plaintiff-Appellee, v. Louis V. CHAMPAGNE, Defendant-Appellant.
    No. 5885.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearings Denied May 10, 1977.
    Writs Refused June 8, July 1, 1977.

      Charles W. Seaman, Natchitoches, for defendant-appellant.
    Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for plaintiff-appellee.
    Before HOOD, FORET and HEARD, JJ.
   HOOD, Judge.

Louis V. Champagne (Defendant) filed pleadings against his former wife, Margaret Stafford Champagne, seeking to reduce the amount of child support payments which he previously had been ordered to pay. Mrs. Champagne (Plaintiff) then filed pleadings seeking to have past due child support payments due by defendant made exechtory, to have the amount of those payments increased, to obtain reasonable attorney’s fees, and to have defendant held in contempt for failure to make the delinquent payments. The rules which were issued by the trial court in response to both of those pleadings were consolidated for trial.

Judgment was rendered by the trial court in favor of plaintiff, Mrs. Champagne, (1) ordering defendant to continue to make child support payments of $200.00 per month, (2) condemning defendant to pay $900.00 as past due child support payments, (3) ordering defendant to pay $200.00 as attorney’s fees, (4) decreeing Champagne to be in contempt for failure to make the delinquent child support payments, and (5) ordering defendant to appear in court 45 days after October 12, 1976, to present evidence “that he is financially able to continue the monthly child support payments above mentioned, and in default thereof to be sentenced for contempt of this court.” Defendant Champagne appealed.

Several issues are presented. One of them is whether the trial judge erred or abused his discretion in failing to reduce the child support payments which defendant previously had been ordered to pay.

By judgment rendered on September 20, 1974, Champagne was ordered to pay $125.00 per month to plaintiff for the support of their two minor children, both of whom were in plaintiff’s custody. Thereafter, both parties agreed that the child support payments should be increased to $200.00 per month, and a consent decree was rendered on August 28, 1975, increasing the monthly payments to that amount. The judgment before us on this appeal, ordering defendant to continue to pay $200.00 per month as child support, was rendered on October 12,1976. At that time defendant was $900.00 in arrears in making the child support payments which had been ordered.

When this matter was tried, on October 7, 1976, Mrs. Champagne held two jobs. She was employed regularly by Exchange Bank of Natchitoches at a salary of $410.00 per month, plus a Christmas bonus amounting to about $605.00. And, for a period of about one month before the trial, she also worked four days a week from 6:00 or 7:00 P.M. until midnight at the Holiday Inn Lounge, for which work she was paid $1.25 an hour, plus tips. Her total income from both jobs amounted to about $7,911.00 per year. She explained that the salary she received from her bank job was not sufficient to enable her to support herself and her two children, and it was for that reason that she obtained additional employment. She also testified, however, that she had to use a substantial part of her earnings to pay for sitters for her children, that her long working hours were detrimental to the best interests of her children, and that her job at the lounge was jeopardizing her employment at the bank. She stated that she would discontinue her employment at the lounge immediately if defendant would resume paying her $200.00 per month as child support.

Defendant Champagne graduated from college in 1974 with a degree in biology and chemistry. He has been employed since that time as a life insurance salesman for Northwestern Mutual Life Insurance Company. His gross earnings during the year 1975 amounted to $4,211.00, and he stated that his earnings during the first nine months of 1976 amounted to only $1,700.36. He testified that he has no other income, that he has been unable to find more lucrative employment, and that he has remarried.

It is argued by defendant that a change in circumstances has occurred since August 28, 1975, when he was ordered to pay $200.00 per month as child support, that he is no longer able to pay that amount, and that the trial court erred or abused its discretion in ordering him to continue to pay that sum each month. Defendant also contends that the trial judge erred in failing to consider the income of plaintiff, the mother. He takes the position that plaintiff should be required to share the burden of supporting the children, and that for that additional reason he is entitled to a reduction in the amount of child support payments he previously was ordered to make.

The trial judge concluded that defendant is and has been able to make the child support payments ordered on August 28, 1975, but that instead of doing so he has been “hiding behind a so-called insurance salesmanship.” We cannot say that the trial judge erred in reaching that conclusion, and we thus agree with the trial court that defendant is able, or with reasonable diligence he should be able, to continue to pay plaintiff the sum of $200.00 per month as child support. We find no error in that part of the trial court’s judgment which orders defendant to continue to pay that amount to plaintiff for the support of their two children.

We agree with defendant that in fixing the amount of child support payments which he should be ordered to pay, consideration should be given to the income of the mother, as well as that of the father, since both parents are obligated to support, maintain and educate their children. LSA-C.C. arts. 227 and 231; Burks v. Burks, 293 So.2d 923 (La.App. 2 Cir. 1974); LeBouef v. LeBouef, 325 So.2d 290 (La.App. 4 Cir. 1975).

In the instant suit, the present income of plaintiff, the mother, is greater than that of the father. Plaintiff derives that income from two jobs, however, one of which keeps her away from her home and children four evenings every week and jeopardizes her other employment. She wants to discontinue her employment at the Holiday Inn Lounge, that is, the job which keeps her away from home during evening hours, and we think she is justified in doing so. Her children need the attention of a mother, and the day-to-day services demanded of a mother contribute substantially to the mutual obligation of support. Ducote v. Ducote, 339 So.2d 835 (La.1976); Gravel v. Gravel, 331 So.2d 580 (La.App. 3 Cir. 1976).

We have considered the income which Mrs. Champagne will have after she discontinues her employment at the Holiday Inn Lounge, and the fact that she has the financial burden of caring for her two children and of paying for sitters for the children while she is at work. We also have decided that defendant’s earnings should be at least as much as they were in 1975, even if he should continue in his present employment, and we have considered those earnings. Under the circumstances presented here, we conclude that the trial judge did not err or abuse his discretion in ordering defendant to continue to pay $200.00 per month to plaintiff as child support.

The next issue presented is whether the trial court erred in decreeing defendant to be in contempt for his failure to make child support payments timely. Champagne contends that he tendered to plaintiff the sum of $300.00 to apply on his delinquencies, but that plaintiff refused to accept that payment. He argues that the delinquency in making the payments, therefore, “was not of his own making,” and that the court erred in holding him in contempt because of his failure to make them.

We find no merit to that argument. The evidence shows that defendant informed plaintiff by telephone that he would pay her $300.00 if she would “drop everything.” The amount offered was not sufficient to pay up all of the delinquencies, and at that time criminal neglect of family charges were pending against defendant. Plaintiff was unwilling to accept that payment on condition that she drop the charges, explaining that “I would have had to go through everything again.” We think plaintiff was justified in refusing the offer of compromise made by defendant, and we find no error in that part of the trial court’s judgment which holds defendant to be in contempt.

Champagne argues further that the trial judge erred in ordering him to appear before the court within 45 days to prove his financial ability to make the monthly child support payments. He concedes that the trial court has the power to hold the obligor in contempt for failure to make child support payments previously ordered by the court. He contends, however, that the court does not have the authority or power “to establish a ‘debtors’ prison’ for failure of an individual to obtain employment.”

There is no merit to defendant’s argument. In the first place, the defendant has not been sentenced to prison, and the judgment appealed from does not order his confinement. The above argument, therefore, considered in a light most favorable to defendant, must be considered as being premature. Secondly, defendant is presently employed, and he was employed continuously during the time he became delinquent in his payments. The court determined that his income from that employment was sufficient, or would have been sufficient if he had applied himself, to enable him to make the payments which were ordered. We have found that the evidence supports that determination. Under those circumstances, the trial court clearly acted within its authority and discretion in holding defendant to be in contempt for failing to make the payments which he had been ordered to make. The judge had authority to sentence defendant for the contempt at that time, perhaps to confinement. He did not do so, but instead he deferred the matter until a later date to inquire as to the defendant’s ability to make the current payments which were then becoming due each month. Defendant has not been prejudiced by the granting of that delay. On the contrary, it seems to us that the action of the court gives defendant an opportunity to avoid the imposition of any sentence at all, despite the fact that he had been found to be in contempt of court.

If we should accept defendant’s argument, we believe we would have to set aside that part of the judgment appealed from which orders the 45 day delay, and remand the case to the trial court with instructions that defendant be sentenced immediately for contempt. We do not believe that law or equity requires that we render such a judgment.

Defendant argues, finally, that the trial court erred in condemning him to pay plaintiff $200.00 as attorney’s fees.

The jurisprudence is conflicting, even between different panels on our own court, as to whether attorney’s fees should be awarded in actions for past due alimony and child support. See Gauthreaux v. Gauthreaux, 315 So.2d 402 (La.App. 3 Cir. 1975); Janise v. Janise, 328 So.2d 711 (La.App. 3 Cir. 1976); Baldwin v. Baldwin, 337 So.2d 245 (La.App. 3 Cir.1976); Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902 (1950); Newson v. Newson, 176 La. 699, 146 So. 473 (1933); Stoltz v. Stoltz, 162 So.2d 103 (La.App. 4 Cir. 1964).

There is no statutory or contractual authority for the allowance of attorney’s fees in the instant suit.

Persuasive arguments have been made on equitable grounds supporting the view that attorney’s fees should be awarded, over and above the amounts otherwise due, when judgment is rendered in favor of the wife for past due alimony and child support, although such fees are not authorized by statute or by contract. The general rule, however, is that attorney’s fees are not allowed in the absence of a statute or contract providing for them. We concede that some exceptions to that general rule have been recognized in our jurisprudence, but we are reluctant to make another exception in a case of this kind, simply because we may believe that equity favors the mother or that the legislature ought to have provided for the allowance of attorney’s fees. Arguments, in many cases at least as forceful and persuasive as those presented here, can be made on equitable grounds that attorney’s fees should be allowed in damage suits, in workmen’s compensation claims, in real actions, in family matters or those affecting minors, or in many other types of actions, although not authorized by statute or contract. We believe that it is the prerogative of the legislature, and not of the courts, to determine the types of cases in which attorney’s fees may be allowed over and above the amount which may be owed on the principal demand.

With great respect, we disagree with the views expressed in the Gau-threaux, Newson and Baldwin cases, supra, with reference to the awarding of attorney’s fees. We prefer to follow the rule applied in Janise, Wainwright and Stoltz, supra. We thus conclude that the trial judge erred in awarding plaintiff $200.00 as attorney’s fees in this case, and that the judgment appealed from must be amended to delete that award.

In view of the conflicting jurisprudence, we assume that the Supreme Court will grant writs in the instant suit and thereafter will set out some guidelines for us to follow in determining whether attorney’s fees should be awarded in these cases.

For the reasons assigned, the judgment appealed from is amended to delete the award of $200.00 made to Mrs. Champagne as attorney’s fees. In all other respects the judgment of the district court is affirmed. The costs of this appeal are assessed to defendant-appellant.

AMENDED AND AFFIRMED.


author: WATSON, Judge.

text:
    HOSPITAL SERVICE DISTRICT NO. 2 OF ST. LANDRY PARISH, Plaintiff-Appellee, v. Frank DEAN et al., Defendants-Appellants.
    No. 5889.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused June 10, 1977.
    Logan & deLaunay by William E. Logan, Jr., Lafayette, for defendants-appellants.
    Lewis & Lewis by James T. Guglielmo, Opelousas, for defendants-appellants.
    G. Douglas Dean, Opelousas, for defendants-appellants.
    James P. Doherty, Jr., Andrus & Andrus, Opelousas, for plaintiff-appellee.
    Dwight D. Reed, Opelousas, for defendant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

This is an expropriation suit by plaintiff, Hospital Service District No. 2 of St. Landry Parish, against a number of defendants, of whom only Florence Sliman, Zula Richard Pollingue, Karl L. Pollingue, Eugene Pollingue, O’Neil L. Pollingue, Jr. and Hazel Pollingue Manion, have appealed from the decision of the trial court granting plaintiff title to the property sought to be expropriated, lot 108 of the Indian Hills Subdivision of St. Landry Parish, ordering that plaintiff pay defendant, Frank Dean, who is not appealing, the sum of $33,500 and denying to defendants-appellants compensation for a “residential use only” restrictive servitude encumbering the property. A motion to dismiss the appeal will be considered first, and thereafter, the various specifications of error claimed by appellants will be reviewed.

MOTION TO DISMISS

Two grounds are asserted for dismissal of the appeal, both without merit. First, plaintiff-appellee urges that appellants denominated their appeal as suspen-sive in the motion filed in the trial court and that LSA-R.S. 19:13 denies the right of suspensive appeal in an expropriation ease. This contention is correct, but the rule is too well-settled to require citation of authority that an appeal, which fails for some reason as a suspensive appeal, will be considered as a devolutive appeal. Next, it is contended that the appeal is moot because an instrument containing waivers of the residential restriction signed by the requisite number of property owners of the Indian Hills Subdivision has been filed. It is admitted, however, that the record does not contain evidence to establish that the persons signing are property owners or that they constitute the required number for a waiver of the restriction.

Since the motion to dismiss is without merit, it is denied.

ON THE MERITS

Hospital Service District No. 2 of St. Landry Parish is a political subdivision of the Parish of St. Landry. It operates a hospital providing general health care and modern hospital facilities in the Opelousas area. As part of an expansion program, the directors of the hospital district concluded that an additional automobile entrance to the emergency room of the hospital was needed and that it was necessary to expropriate lot 108 of the Indian Hills Subdivision, across which to build the street. The hospital has expropriation authority under LSA-R.S. 46:1060. A petition to expropriate lot 108 with all rights affecting the property was filed, and, after certain preliminary proceedings, all owners of property in Indian Hills Subdivision were named as parties defendant. A number of property owners did not appear or answer and judgment was taken by default against them. The owner of lot 108, Frank Dean, was awarded $33,-500 and he has not appealed.

Certain of the other property owners in the subdivision answered the expropriation suit, asserting various grounds of defense but chiefly contending that they, as owners of the right to enforce a restrictive covenant restricting the lot to residential use, were entitled to compensation for the taking of this right.

The trial court resolved the contention against the property owners and this appeal followed.

The specification of errors by appellants frame the issues to be considered, and they are in summary as follows:

(1) that the expropriating authority did not conduct sufficient negotiations prior to the institution of suit and that the trial court erred in overruling the exception of prematurity filed by appellants;
(2) that there was no showing that the proposed street construction had been approved by the Opelousas city planning commission;
(3) that the trial court erred in failing to award compensation to appellants for the taking of their property rights; and
(4) that the trial court erred in failing to award attorney’s fees to appellants.

APPROVAL BY PLANNING COMMISSION

Appellants contend that the construction of the street by the hospital district would be in violation of LSA-R.S. 33:115. However, appellants readily admit that there is no showing that the city planning commission has adopted a major street plan which is a statutory requirement for the necessity of obtaining prior approval. This specification of error has no merit.

COMPENSATION FOR LOSS OF RIGHT TO ENFORCE RESTRICTIVE COVENANT

The first, third and fourth issues are inter-related and all hinge on a resolution of the question as to whether appellants are entitled to compensation.

The issue of compensation for owners of property sharing a restrictive covenant has presented many problems to the courts of other jurisdictions and has never been decided definitively in Louisiana, although this circuit has spoken in a case which was reversed by the Louisiana Supreme Court on other grounds. See Gremillion v. Rapides Parish School Board, 134 So.2d 700 (La.App. 3 Cir. 1961); reversed on other grounds, 242 La. 967, 140 So.2d 377 (1962).

In Gremillion, then Judge (now Justice) Tate of our circuit reviewed thoroughly the status of this issue in various other jurisdictions. It was noted that the question is de novo in Louisiana. Some ten states were listed as holding that the neighboring property owners must be compensated for the taking of their right to enforce a building restriction, while some eight jurisdictions were said to support the opposite conclusion.

Since Gremillion was written it appears that one state, California, has switched sides on the issue, going from denying compensation to now allowing compensation. Southern California Edison Company v. Bourgerie, 9 Cal.3d 169, 107 Cal.Rptr. 76, 507 P.2d 964 (1973), overruling Friesen v. City of Glendale, 209 Cal. 524, 288 P. 1080. Also since Gremillion Nebraska and Nevada have joined the states allowing compensation while Alabama and Arkansas have denied compensation. See 4 A.L.R.3d 1137. The authorities among other jurisdictions in the United States are, thus, about evenly divided.

Argument is made that the Louisiana Supreme Court adopted a position against compensation in reversing Gremillion. However, that court specifically limited its opinion as follows:

“And the only question presented by it is whether such title defect is so substantial as to suggest the probability of future serious litigation respecting the proposed purchaser’s use of the property.” 140 So.2d 379.

The Louisiana Supreme Court added:

“ . . . the particular issue of damages [for loss of the right to enforce the restrictive covenant] that will in all probability arise between the owners of the three adjoining lots and the school board, if and when the latter acquires the property in question — by expropriation or otherwise — and uses it for school purposes, has not been passed upon by our appellate courts and consequently is res novo; and, further, that none of the observations made hereinafter are intended to constitute a determination by us of such an issue, . . .” 140 So.2d 379.

The reasoning followed by this circuit in its treatment of Gremillion is persuasive and it will be quoted at some length:

“We do not, however, adopt this view. We prefer to follow the reasoning of the other jurisdictions which hold, to the contrary, that restrictive covenants affecting property acquired for governmental purposes do not, as against a governmental agency acquiring the affected property for a public use, constitute a property right of the owners of the untaken lands in favor of which the covenants run. “This is so, because any restriction that property cannot be used for governmental purposes nor be acquired by a public agency for public use is unenforceable ab initio. As some jurisdictions hold, such a restriction is void as against public policy or is deemed excepted from the intendment of the parties at the time a covenant is created restricting the use of property in some particulars.
“Prior to creation of the restrictive covenant, the state was legally entitled to acquire the property for school purposes upon the payment of just and adequate compensation to the owner of the land. The state’s right to acquire such land for school purposes cannot be restricted by a private contract between private parties, to which the state is not a party; nor can such a private contract impose upon the state liability beyond that allowed in the absence of the contract. In the sense that such restrictive covenants cannot affect the state’s acquiring or use of the land for public purposes, they do not constitute, as against the sovereign, any property right which must be compensated for the violation or damaging thereof by the use of the property for a governmental purpose.” 134 So.2d 702.

We now reaffirm the reasoning of Grem-illion and conclude that the appellants are not entitled to compensation for the loss of their right to enforce the restrictive covenants. The specifications concerning failure to negotiate and attorney’s fees fall with the principal specification. The decision of the trial court is affirmed and costs are taxed against appellants.

AFFIRMED.


text:
    Durphy BOURQUE and Lila Racca Bourque, Plaintiffs-Appellants, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5891.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Jean Pierre Lendais, Lafayette, for plaintiffs-appellants.
    Mouton, Roy, Carmouche & Hailey by Ralph E. Kraft, Lafayette, for defendants-appellees.
    Before HOOD, DOMENGEAUX and ROGERS, JJ.
   HOOD, Judge.

Durphy Bourque and his wife, Mrs. Lila Racca Bourque, seek to recover damages allegedly sustained by them as the result of a motor vehicle collision. The defendants are Glen W. Pont, Lamb Industries, Inc., and American Mutual Liability Insurance Company. Defendants filed an exception of no cause of action to the petition or demands of Mrs. Bourque. The trial court rendered judgment maintaining that exception and dismissing the suit and the claims of that plaintiff, with prejudice. Mrs. Bo-urque appealed.

The sole issue presented is whether a wife has a cause of action to recover damages for loss of consortium when her husband has been rendered impotent through the negligent acts of another.

Plaintiffs allege that on September 22, 1975, a collision occurred between an automobile owned and being operated by Mr. Bourque and a vehicle being driven by defendant Pont. They assert that Mr. Bourque sustained injuries in that accident, and that as a result of those injuries he has become impotent. There are no allegations that Mrs. Bourque was present when the vehicles collided, or that she sustained physical injuries resulting from that accident. As the sole basis for her demand for damages, the petition alleges:

“Petitioner LILY RACCA BOURQUE, wife of Durphy Bourque your petitioner, sustains a prejudice for the impotency of her husband which deprives her from any intimate relationship with her husband, which entitles her to damages in the amount of $50,000 for which defendant and their insurer are obligated.”

Mrs. Bourque contends that the loss of her husband’s consortium constitutes a loss or damage which is as real and personal to her as would be the loss of income or a disability. She claims that the damage was caused by the act of defendant Pont, and that she is entitled to recover damages from him under Article 2315 of the Louisiana Civil Code.

The established rule in this state is that, except in death cases, one person may not recover damages for mental pain and anguish suffered by him as the result of physical injuries sustained by another person. Black v. Carrollton Railroad Company, 10 La.Ann. 33 (1855); Robertson v. Aetna Casualty & Surety Company, 232 So.2d 829 (La.App. 4 Cir. 1970); McKey v. Dow Chemical Co., Inc., 295 So.2d 516 (La.App. 1 Cir. 1974); Hickman v. Parish of East Baton Rouge, 314 So.2d 486 (La.App. 1 Cir. 1975); Parker v. St. Paul Fire & Marine Insurance Co., 335 So.2d 725 (La.App. 2 Cir. 1976); Johnston v. Fidelity National Bank of Baton Rouge, 152 So.2d 327 (La.App. 1 Cir. 1963); Christofferson v. Halliburton Company, 5 Cir., 534 F.2d 1147 (1976).

The identical issue which is before us here was presented in McKey v. Dow Chemical Company, Inc., supra. There, as in the instant suit, the wife claimed damages for mental anguish, emotional distress and loss of consortium because of physical injuries sustained by her husband. The trial court maintained an exception of no cause of action filed by defendants and dismissed the suit. On appeal, the First Circuit Court of Appeal applied the above general rule and affirmed the district court judgment. The reviewing court said:

“Traditionally and historically our jurisprudence has consistently declined to allow recovery to one party for mental pain and anguish resulting from mere personal injury to another.”
He Hi ^ s}: s{! *
“The rationale of this premise is the avoidance of opening a field of litigation which will flood the courts with actions in which practical justice cannot be meted out to both plaintiff and defendant alike. Another basic premise of the rule is that, under such circumstances, there is no breach of a legal duty toward the party claiming damages.”
“We hold that these considerations dictate the rule that a party to a contract has no claim under our law to recover damages from a tort-feasor predicated upon the negligent injury to a third party which results in the injured party being rendered incapable of performing contractual obligations.”

The United States Court of Appeals, Fifth Circuit, stated in Christofferson v. Halliburton Company, supra, where a similar question was presented, that:

“Indisputably the Court of Appeals of Louisiana has ruled that a wife does not have a cause of action in Louisiana for mental anguish, emotional distress, and loss of past and future consortium which resulted from injury to her husband.”
* j{! ¡}s sf: ‡ :Js
“In light of the reasoning of the court in McKey v. Dow Chemical Co., supra, however, we are not persuaded that the Supreme Court of Louisiana would allow a wife a cause of action for loss of consortium where her husband is injured by a third party.”

In Hickman v. Parish of East Baton Rouge, supra, a claim was asserted in behalf of some minor children for damages for loss of services, and for loss of love and affection of their parents, resulting from physical injuries sustained by the parents in an automobile accident. The trial court maintained an exception of no cause of action and dismissed the suit. The First Circuit Court of Appeal affirmed, basing its decision largely on McKey, supra. And, in Parker v. St. Paul Fire & Marine Insurance Company, supra, substantially the same rule was applied and the demands of the husband were rejected by the Second Circuit Court of Appeal, where the husband sought to recover damages from a hospital for mental suffering and anguish brought about by injuries sustained by his wife through the fault of the hospital.

Plaintiffs rely to some extent on Holland v. St. Paul Mercury Insurance Company, 135 So.2d 145 (La.App. 1 Cir. 1961), and Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App.Orl.1951), in each of which cases the claimant was allowed to recover damages for mental anguish because of physical injuries sustained by another person. We distinguish Holland, for the reasons assigned in the Robertson, Hickman and Parker cases, supra. We believe that the ruling in Valence conflicts with the established jurisprudence, and for that reason we respectfully decline to follow it.

Counsel for plaintiffs, in a scholarly brief, refers us to several French cases which interpret the Fr'ench Code as authorizing the wife to recover under circumstances such as those presented here. The argument is persuasive since the pertinent part of LSA-C.C. art. 2315 had its origin in the French Code. Our courts have been fairly consistent, however, in interpreting the applicable articles of the Louisiana Civil Code as not allowing one person to recover damages for mental anguish because of physical injuries sustained by another person. The judgments rendered in the McKey, Hickman and Parker cases, supra, are more consistent with our understanding of the provisions and spirit of the above articles of the Louisiana Civil Code than are the views expressed by the cited French authorities. We thus prefer to follow the Louisiana jurisprudence.

We find no error in the judgment appealed from which maintains the exception of no cause of action and dismisses the petition or claims of Mrs. Bourque.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: HOOD, Judge. DOMENGEAUX, Judge,

text:
    Walter HUGHES, Jr., Plaintiff-Appellant, v. COLONIAL LIFE AND ACCIDENT INSURANCE COMPANY, Defendant-Appellee.
    No. 5893.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused June 30, 1977.

      Eugene P. Cicardo, Alexandria, for plaintiff-appellant.
    Provosty & Sadler by David P. Spence, Alexandria, for defendant-appellee.
    Before HOOD, DOMENGEAUX and ROGERS, JJ.
   HOOD, Judge.

Walter Hughes, Jr., seeks to recover benefits alleged to be due under an accident insurance policy issued by defendant, Colonial Life and Accident Insurance Company. He also claims penalties and attorney’s fees. The trial judge rendered judgment awarding plaintiff the policy benefits claimed, but rejecting his demands for penalties and attorney’s fees.

Plaintiff appealed, seeking to recover penalties and attorney’s fees. Defendant answered the appeal, praying that all of plaintiff’s demands be rejected.

The issues presented are whether plaintiff’s disability resulted from an accident which occurred while the policy was in effect, and whether he is entitled to recover penalties and attorney’s fees under LSA-R.S. 22:657.

On January 10,1975, plaintiff slipped and fell over a garbage can, landing on his back and side, while he was working as a garbage collector for the City of Pineville. He was hospitalized for about seven days thereafter, and he has received medical treatment periodically since that time. He sustained a lumbosacral strain as a result of that fall, and he contends that he has been totally disabled since the date of the accident.

At the time plaintiff fell there was in effect an employee’s accident insurance policy issued by Colonial Life and Accident Insurance Company, which insured plaintiff against loss “resulting directly, independently and exclusively of all other causes from bodily injuries effected solely by accident during the term of this policy . .” The policy excludes coverage for “any loss caused directly or indirectly by disease (insect borne or otherwise) or bodily or mental infirmity, or medical or surgical treatment or diagnostic procedure therefor.” It provides for monthly payments of varying amounts during the period of the insured’s disability.

Hughes was 39 years of age when the accident occurred. He was obese, weighing more than 400 pounds, and he was suffering from degenerative arthritis, hypertension and a heart condition described as cardiac decompensation or congestive failure. All of those conditions existed before he fell on January 10, 1975, and they thus were not caused or brought about by the accident.

The record contains the depositions of a general surgeon and of two orthopedic surgeons. The general surgeon, who treated plaintiff for his obesity and hypertension, expressed no opinion as to whether he was disabled or whether the fall he sustained aggravated his pre-existing conditions. Both of the orthopedic surgeons felt that plaintiff was disabled, primarily because of his pre-existing obesity and arthritic condition. Their testimony was somewhat inconclusive as to whether plaintiff’s present disability was caused by the fall which he sustained on January 10, 1975, but they conceded that it was possible that plaintiff’s pre-existing condition was aggravated by his fall.

The applicable rule is stated in Martin v. American Benefit Life Insurance Company, 294 So.2d 200 (La.1974), as follows:

“The rule to be applied in such cases was stated to be that if there is a pre-ex-isting disorder or illness at the time an injury is received, recovery may be had if the injury is severe enough to have caused considerable damage and if the disease was not the proximate cause or principal cause of the disability.”

We have concluded that the medical evidence, although inconclusive in some respects, supports the finding of the trial court that the fall which Hughes sustained on January 10, 1975, aggravated his previously existing arthritic and heart conditions, and that the aggravation of those conditions, combined with his obesity, has rendered him totally disabled. We thus find no error in that part of the judgment which condemns defendant to pay plaintiff the benefits provided in the policy for total disability. See Thibodeaux v. Pacific Mutual Life Insurance Company, 237 La. 722, 112 So.2d 423 (1959); Moore v. Prudential Insurance Company of America, 278 So.2d 481 (La.1973), and Mitchell v. Equitable Equipment Company, 330 So.2d 919 (La.1976).

The trial judge also held that “in light of plaintiff’s pre-existing conditions of arthritis and obesity, there was a bona fide dispute as to the cause of plaintiff’s disability warranting judicial determination.” For those reasons he rejected plaintiff’s demand for penalties and attorney’s fees.

LSA-R.S. 22:657 requires that claims under accident policies shall be paid promptly “unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist.” The failure to comply with that requirement subjects the insurer to the penalties therein provided.

We agree with the trial judge that sufficient grounds existed in the instant suit to justify defendant’s refusal to pay benefits until a judicial determination of plaintiff’s claim could be made. There is no error in that part of the trial court’s judgment, therefore, which rejects plaintiff’s demand for penalties and attorney’s fees. See Martin v. American Benefit Life Insurance Company, supra.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

DOMENGEAUX, J., concurs in part and dissents in part and assigns brief reasons.

DOMENGEAUX, Judge,

concurs in part and dissents in part.

I concur in the benefits award but dissent from the denial of attorney’s fees. Plaintiff was hospitalized immediately after the accident for no reason other than the injuries sustained from the accident. He was certainly totally disabled during the time he was hospitalized, and should have been paid benefits at least for that period. His entitlement thereto was clear. Attorney fees should be awarded under R.S. 22:657.