author: GULOTTA, Judge.

text:
    Ben J. SHEAR d/b/a Ajax of Louisiana v. Gabe CASTRINOS d/b/a Camp Inn Restaurant.
    No. 7229.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.

      Stahl & Berke, Kenneth J. Berke, New Orleans, for plaintiff-appellee.
    Aubrey E. Pate, Kenner, for defendant-appellant.
    Before GULOTTA, SCHOTT and BEER, JJ.
   GULOTTA, Judge.

Defendant, a lessee of commercial refrigeration equipment, appeals from a judgment in favor of plaintiff-lessor on an open account in the sum of $2,280.00. In answer to the appeal, lessor seeks a $1,000.00 increase in the amount of the award. We amend the judgment in favor of plaintiff, increasing the amount owed by the sum of $1,000.00.

In July, 1962, plaintiff leased to defendant two ice machines at a monthly rental of $90.00. On May 1, 1963, the rent was increased to $100.00 per month and remained at that figure until August, 1973, the month the equipment was removed. Plaintiff’s claim is for the unpaid balance owed for rental of the two ice machines from May, 1963, until August, 1973. According to plaintiff, the total rent charged from July, 1962 through August, 1973 was $13,180.00. During this same period of time, plaintiff contends $9,000.00 was credited to defendant’s account, leaving a balance of $3,280.00.

The thrust of defendant’s appeal is mul-ti-faceted. It is defendant’s contention 1) that plaintiff failed to carry the burden of proof required to establish the amount owed on the open account; 2) that plaintiff is not entitled to rental on the ice machine that was inoperative from December 1, 1971 through August, 1973, and since defendant has paid the rent owed on the other machine, no remaining rent is owed; 3) that plaintiff failed to notify defendant that the account was delinquent; and, 4) that plaintiff’s suit has prescribed.

We find no merit to any of these contentions. In connection with defendant’s argument relative to burden of proof, LSA-C.C. art. 2277 provides:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

An examination of the record reveals that plaintiff’s credit manager testified and identified exhibit invoices sent to defendant from July 5, 1962 through August 25, 1973. In addition to the testimony and invoices, a statement of the account showing the credits and debits was also introduced into evidence. This evidence is sufficient to satisfy the burden of proof requirements of LSA-C.C. art. 2277.

Once a prima facie case has been established by plaintiff, the burden devolves upon defendant to disprove the existence or correctness of the account, either in whole or in part. See Freiberg v. Rembert, 213 So.2d 104 (La.App. 1st Cir. 1968).

Defendant asserts that he has successfully discharged this burden by the introduction into evidence of checks, issued to plaintiff, showing payment in full for the rental of the machines. It is lessee’s contention that notations placed on rent checks issued to plaintiff indicated the rental periods for which the checks were issued. According to defendant, when plaintiff deposited these checks to his account, he acknowledged that payment was made current to the months indicated on the checks. Defendant is, in effect, asserting the defense of accord and satisfaction.

We fail to find this defense applicable to the lessee in the instant case. It is well settled that, among others, a pre-ex-isting well-defined dispute is an indispensable prerequisite to invoking the doctrine of accord and satisfaction. See Wilson v. Sun Oil Company, 290 So.2d 844 (La. 1974). The record does not contain evidence that plaintiff was aware of the existence of a dispute concerning the amount of rental owed prior to the date the machines were removed. Although the testimony shows that plaintiff telephoned defendant on several occasions in order to remind him of the delinquent rent, there is no evidence that defendant disputed these amounts at the time of notification. Furthermore, the only other evidence indicating that a dispute regarding payment existed was a letter dated August 31, 1973 (subsequent to the removal of the machines) and written by plaintiff’s attorney to defendant’s attorney. All of the checks introduced into evidence were cashed prior to the August 31, 1973 letter. Therefore, under the circumstances, we cannot say that when plaintiff-creditor cashed defendant’s checks, he understood this to signify that defendant’s account was being made current to the dates noted on the checks. See Antoine v. Elder Realty Company, 255 So.2d 625 (La.App. 3d Cir. 1971).

We reject further the claim by defendant that because one of the two ice machines became inoperative on December 1, 1971, and remained in that condition until removed in August, 1973, during which period defendant deducted $50.00 per month rental, defendant is not in arrears. Failure by a lessor to make necessary repairs is not justification for the lessee’s refusal to pay rent when due. See Mullen v. Kerlec, 115 La. 783, 40 So. 46 (1905). In such instance, two remedies are available to the aggrieved lessee. Lessee may cause the repairs to be made and deduct the price from the rent due or he may sue for cancellation of the lease. See LSA-C.C. art. 2694, 2729. See also Bruno v. Louisiana School Supply Company, Inc., 274 So.2d 710 (La.App. 4th Cir. 1973); Degrey v. Fox, 205 So.2d 849 (La.App. 4th Cir. 1968). Neither of the two available remedies was pursued by defendant.

In addition, Gabe Castrinos, defendant and owner of the Camp Inn Restaurant, and James Castrinos, general manager of the restaurant, both testified that when one of the machines became inoperative on December 1, 1971, they simply stopped paying rental on that machine. James Castrinos testified further that he did call and advise plaintiff that the machine was malfunctioning. We note, however, that this witness did not furnish the date of the alleged notification nor the circumstances under which the notification was made. He did not specify whom he notified. This testimony of James Castrinos is not convincing, particularly in view of Gabe Castrinos’s testimony that he did not notify plaintiff he was reducing the rental. Under the circumstances, we conclude defendant is not entitled to the deduction claimed by him.

Nor do we find merit to defendant’s contention that he is exonerated from the payment of the amount claimed by plaintiff because of the lessor’s failure to notify defendant that the account was in fact delinquent. Prior to suit, plaintiff sent defendant a letter, admittedly received by defendant, and dated May 31, 1972, which indicated that $2,524.17 was owed on defendant’s account. In addition, numerous telephone calls were made by plaintiff to defendant regarding the latter’s delinquent account.

We reject defendant’s final contention that plaintiff’s suit has prescribed. The three year prescriptive period for the balance due on an open account begins to run from the date of the last credit entry on that account. See LSA-C.C. art. 3538; Freiberg, supra. The account of debits and credits, introduced into evidence in the instant case, shows that the last payment accepted by plaintiff was made in August, 1972. Suit was filed on November 24, 1972. Clearly, the matter has not prescribed. See Williams v. Plumb, 166 So. 896 (La.App. 2d Cir. 1936).

Finally, we .address ourselves to the answer to the appeal in which plaintiff asserts that the trial judge erroneously awarded defendant a credit in the sum of $1,000.00, representing the period of time from December 1, 1971 through August, 1973, during which time one of the two ice machines had been inoperative. We are in agreement with plaintiff’s claim that the trial judge erred in awarding defendant a credit. As stated hereinabove, if lessor failed to make the proper repairs after notification of the ice machine’s malfunction, defendant’s recourse was to repair the machine and deduct the cost of the repairs from the rent or to seek cancellation of the lease. Defendant is not entitled to. a credit in the instant case. See Bruno v. Louisiana School Supply Company, Inc., supra, and Degrey v. Fox, supra. Plaintiff is entitled to recover an' additional amount in the sum of $1,000.00 erroneously allowed as a credit to defendant.

Accordingly, the judgment in favor of plaintiff in the sum of $2,280.00 is amended and increased to the sum of $3,280.00. As amended, the judgment is affirmed.

Amended and affirmed.

      . Louisiana jurisprudence has adopted a common law concept of “accord and satisfaction”. Three factors must be present for its application: 1) an unliquidated or disputed claim; 2) a tender by the debtor; and, 3) an acceptance of the tender by the creditor. Young v. White Stores, Inc., 269 So.2d 266 (La.App.3d Cir. 1972).


source: Caselaw Access Project

author: SAMUEL, Judge;

license: Public Domain

text:
    Samuel E. PONS v. George Neo PONS, and as a Nominal Defendant only, Mary Antoinette Robinson.
    No. 7191.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1976.
    Rehearing Denied March 16, 1976.
    Garland R. Rolling, Metairie, for plaintiff-appellant.
    Francis J. Demarest, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge;

This suit was instituted by Samuel E. Pons against his uncle, George Neo Pons. Plaintiff’s aunt, Mary Antoinette Robinson, is named as a “nominal defendant”. The petition prays that a judicial determination be made as to whether or not Mrs. Robinson was coerced or unduly influenced to make decisions she does not desire to make, for an accounting from defendant Pons of all money received by him from Mrs. Robinson, and that doctors and experts be appointed to determine Mrs. Robinson’s physical and mental condition.

Defendant, George Neo Pons, filed exceptions of no cause of action and no right of action to the petition. After a hearing on the exceptions, there was judgment maintaining the exception of no cause of action and dismissing the suit. Plaintiff has appealed.

In essence, the sixty-eight-paragraph petition alleges:

Plaintiff and his uncle, George Neo Pons (Mrs. Robinson’s brother), are that lady’s nearest living relatives. Mrs. Robinson had cared for and raised plaintiff and he had promised her deceased son he would look after her and take care of her affairs as long as she lived. After the death of her son, Mrs. Robinson requested plaintiff, and plaintiff agreed, to handle all of her financial affairs. She gave him her power of attorney by notarial act. When informed of this fact, defendant, George Neo Pons, strongly objected and he and his wife then took Mrs. Robinson into their home for the stated purpose of caring for her. Plaintiff agreed to the payment of $100 per week out of Mrs. Robinson’s property to them for that care and upkeep.

Thereafter, plaintiff was advised Mrs. Robinson wanted to change her will and he arranged for an attorney to prepare the will for her. At a later date, defendant, his wife and their son divided all of the furnishings in Mrs. Robinson’s home among themselves and prevailed on her to sell the home.

Plaintiff’s frequent visits to Mrs. Robinson were often punctuated by sharp disagreements with his uncle and the latter’s wife who were intent on creating confusion and dissatisfaction and upsetting Mrs. Robinson. Apparently Mrs. Robinson did not know she was paying defendant for her keep. When she found out she ordered plaintiff to cease the payments. Later, his uncle’s wife demanded back due payments and created a scene which upset Mrs. Robinson to such an extent she agreed to an increase. On several occasions plaintiff’s uncle and aunt attempted to influence Mrs. Robinson to change her will, to give money to their son and to cash in large certificates of deposit. Mrs. George Neo Pons later died and Mrs. Robinson expressed relief, informing plaintiff the wife used to beat her. Thereafter, plaintiff received a letter from his uncle’s attorney demanding a return of certificates of deposit and an account of expenditures.

Since that time he has been refused permission to see his aunt and he is concerned about her physical, mental and monetary well being.

We affirm the judgment dismissing the plaintiff’s suit. However, we are of the opinion dismissal should be based on the exception of no right of action and not on the exception of no cause of action.

As stated by the Supreme Court of Louisiana in Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328:

“There has been much discussion about the purpose of the exception of no right of action, and many attempts to differentiate that exception from the exception of no cause of action. One of the best statements of the definition of no right of action and of the basis of the distinction between it and no cause of action was given by the late Henry George McMahon: ‘The former [no cause of action] is used to raise the issue as to whether the law affords a remedy to anyone for the particular grievance alleged by plaintiff; the latter [no right of action] is employed (in cases where the law affords a remedy) to raise the question as to whether plaintiff belongs to the particular class in whose exclusive favor the law extends the remedy, or to raise the issue as to whether plaintiff has the right to invoke a remedy which the law extends only conditionally.’ McMahon, The Exception of No Cause of Action in Louisiana, 9 Tul.L. Rev. 17, 29-30. See also McMahon, Parties Litigant in Louisiana, 11 Tul.L. Rev. 529-30. The exception of no right of action, however, cannot be invoked to determine whether a particular defendant can stand in judgment in a particular case, i. e., whether the right or remedy can be exercised against that defendant.

In Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir. 1967), Mr. Justice Tate of our court, then writing for the Court of Appeal, correctly stated the purpose of the exception of no right of action:

‘The want of interest raised by the exception relates primarily to whether the particular plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit, with the factual evidence admissible being restricted as to whether this particular plaintiff does or does not fall within the general class having legal interest to sue upon the cause of action asserted. sk * *

‘In short, the objection of no right of action raises the question of whether the plaintiff has a legal interest in the subject matter of the litigation, assuming (for the purpose of deciding the exception) that a valid cause of action is pleaded by the petition. LaSage v. Union Producing Co., 249 La. 42, 184 So.2d 727.’ ”

Here, the petition does state a cause of action, but only on the part of Mrs. Robinson. And that cause of action is hers alone and the record is devoid of any evidence showing that plaintiff has any right to assert any cause of action belonging exclusively to his aunt. We note that plaintiff does not seek Mrs. Robinson’s interdiction.

For the reasons assigned, the judgment appealed from is amended so as to maintain the exception of no right of action instead of the exception of no cause of action. As thus, amended, the judgment appealed from is affirmed.

Amended and affirmed.

      . We note the record contains a certified copy of a notarial act by which Mrs. Robinson appointed defendant Pons her attorney in fact and specifically revoked the power of attorney she had previously given to plaintiff.

      . For example, the allegations and prayer relative to an accounting from the defendant Pons.

      . See LSA-C.C. Art. 390; LSA-C.C.P. Art. 4643.


author: SCHOTT, Judge.

text:
    SAHUQUE REALTY COMPANY v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY OF AMERICA et al.
    No. 7227.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearings Denied March 16, 1976.
    Writs Refused April 30, 1976.

      Badeaux, Discon & Cumberland, John G. Discon and J. Michael Cumberland, New Orleans, for plaintiff-appellant.
    Hammett, Leake & Hammett, Craig R. Nelson, New Orleans, for defendants-third-party plaintiffs-appellants.
    Philip S. Brooks, City Atty., Gerald Stewart, Philip D. Lorio, III, Asst. City Attys., for third-party defendant-appellee, City of New Orleans.
    Before GULOTTA, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff brought this suit for damages to its building at Royal and St. Peter Streets in the City of New Orleans and loss of income which it alleged resulted from construction activities of New Orleans Public Service, Inc. (NOPSI) and Wallace C. Drennan, Inc. (Drennan). This is not a tort action but is based upon the liability of the proprietor flowing from LSA-C.C. Art. 667 and the recent jurisprudence concerned therewith, e. g., Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975) and cases cited therein. At the outset of the trial all parties stipulated that Drennan performed without negligence. Defendants denied liability and alternately filed a third-party demand against the City of New Orleans claiming contribution on the theory that the City was the owner of the street where the work was done with the result that the City was likewise liable under Art. 667. From a judgment in favor of plaintiff and against defendants for $20,000 and in favor of the City, dismissing the third-party demand of defendants, the plaintiff and the defendants have appealed, the former seeking an increase in damages and the latter seeking a reversal of the judgment on the main demand or at least a reduction in the damages and alternatively a reversal of the dismissal of its third-party demand.

NOPSI had contracted with Drennan for the construction of an underground vault for electric transformers on St. Peter Street just off Royal Street, directly in front of plaintiff’s building. The work also involved the installation of an underground conduit running along Royal Street from St. Peter in front of plaintiff’s building as well as the removal of some manholes and an old underground conduit, and the removal and relocation of underground drainage and sewage lines in the streets in front of the building. This construction involved an excavation to a depth of 15 feet to accommodate the vault transformer located less than 12 feet from the St. Peter Street side of plaintiff’s building. The access to the vault was located between the vault itself and the building. The trench for the conduit along Royal Street was located within 10 feet of the Royal Street side of the building and reached a depth of 12 feet.

While the work on the transformer vault was in progress in July, 1972, cracks appeared in the stucco finish on the St. Peter Street wall of the building. As the work progressed and upon its being completed these cracks became progressively worse, completely splitting the wall in some places. The evidence is uncontradicted that shortly before the commencement of the work the exterior of plaintiff’s building had been repainted. Photographs taken of the exteri- or in May, 1972 (prior to commencement of construction), July, 1972, and May, 1973, and the testimony of plaintiff’s witnesses leave no doubt whatsoever but that some damage was caused to the building as a result of the work. The principal issue is the extent of this damage.

Plaintiff contends that the cracks were entirely caused by the work while defendants contend that there were pre-existing cracks in the building which reopened as a result of the work so that plaintiff’s claim should be limited to an aggravation of this pre-existing condition. Furthermore, plaintiff contends that the building’s foundation was damaged as a result of defendants’ work necessitating extensive foundation repairs on the St. Peter Street side of the building, while defendants contend that the foundation requires no repairs whatsoever. Plaintiff produced an estimate from a contractor to do the repair work exclusive of the foundation to the outside and inside of the building for approximately $10,000. Defendants produced an estimate from Robert Haase, a contractor whose qualifications were readily acknowledged by plaintiff’s contractor in his testimony, to do essentially the same work for $5,333. Plaintiff's contractor estimated the cost of the foundation work to be approximately $60,000, while Haase estimated the cost of the same work to be approximately $34,000. We have no difficulty finding that plaintiff was entitled to the lower estimate for the work exclusive of the foundation. Photographs of the exterior and the interior of two corner apartments on the second and third floors and testimony amply support plaintiff’s right to recover this sum for replastering, repainting and refinishing the interior, and retoothing the bricks on the exterior along with refinishing and repainting. The trial judge undoubtedly included in his award the $5,333 to do this work, but to find a basis for the remainder of the award becomes a problem.

Defendants contend that the trial judge had to find no foundation damage at all; otherwise, he would have included the lower of the estimates for making these repairs, and that his omission from the award of $34,000 for the foundation damage requires a reduction of the judgment to the sum of $5,333. Defendants also contend that there was no evidence to support'a loss of revenue beyond $140. On the other hand, plaintiff argues that since the trial judge allowed more than $10,000, which it claimed for the repairs other than foundation repairs, the trial judge necessarily found that there was damage to the foundation and since the lower estimate for the foundation repairs was defendant’s $34,000 the trial court necessarily erred in awarding only $20,000. We find these approaches to be overly simplistic and under all of the circumstances of this case we are not inclined to disturb the judgment of the trial court.

We are favored with the following reasons for judgment by the trial judge:

“The Court finds: that there were cracks in the building before the construction, visible from the outside;
“That these cracks were made larger, and made to open to such an extent that they caused openings from outside through the wall and the plaster to the interior;
“That these cracks were made larger because 'of the construction work of the contractor;
“That there will be some disruption of tenants, and loss of revenue due to the repairs;
“There is a lack of agreement as to the extent of cost of the repairs needed.
“The Court feels that the sum of $20,000.00 would adequately compensate the plaintiffs for their damages.”

In our review of the evidence we are mindful of a number of principles which are' pertinent in this case. Where there is a legal right to recovery but damages cannot be exactly estimated the trial court has reasonable discretion to assess such damages based on the facts and circumstances of the case. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971). Where damages cannot be precisely and mathematically determined the trial judge is vested with reasonable discretion in making awards for damage. Lou-Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4th Cir. 1973) writ refused 290 So.2d 899 and 290 So.2d 901 (La. 1974). Where there is considerable variance in estimated damages which render calculation thereof difficult, much discretion is accorded to the trial judge to determine the amount of the award. American Ins. Co. v. Richard, 212 So.2d 481 (La.App. 3rd Cir. 1968) writ refused 252 La. 949, 215 So.2d 125. See also Nickens v. McGehee, 184 So.2d 271 (La.App. 1st. Cir. 1966) writ refused 249 La. 199, 186 So.2d 159.

Plaintiff’s engineering expert, Abijah W. Thompson, was of the opinion that the foundation was damaged by the work. He based this opinion on his finding two cracks in the granite beam supporting the building on St. Peter Street side parallel to the sidewalk. He also performed an inspection of the building’s foundation by making an excavation of 38 inches adjacent to the building, exposing a brick step foundation under the building. He found what he identified as pieces from a wooden mat which formed the bottom layer of the building’s foundation. He explained that the deep excavation for the transformer vault had caused a loss of water under the building where this wooden mat was located, with the result that deterioration of the wooden mat took place which would not have occurred had the water level been left undisturbed. He found deterioration in these particles of wood found on the outside of the perimeter of the foundation but he made no further test on the wooden mat under the foundation because-of the risk he felt was involved in causing it to be exposed to the atmosphere. He also opined that some of the moist alluvial soil oozed from under the foundation into the excavation causing movement in the building. He admitted that one of the cracks in the granite base pre-existed defendants’ work, but had not noticed the second crack until defendants’ work had started. He recommended remedial work which included shoring up plaintiff’s building at the corner of St. Peter and Royal Streets, removal of exterior wall, granite base and existing foundation where necessary, installation of a new foundation for a distance of thirty-eight feet along St. Peter Street and twenty-six feet along Royal Street, and reconstruction of the exterior walls.

In opposition to this testimony, defendants produced experts, George Shrenk, an engineer, and Murvan M. Maxwell, an architect. These witnesses had elevations taken of the building from its Toulouse Street side, on Royal Street, along Royal to St. Peter Street and then along St. Peter Street to its Bourbon Street side. This revealed differential settlement of Si/2 feet between the Toulouse and Royal Streets corner and the Bourbon and St. Peter Streets corner of the building on a gradual general declining line of settlement. In their investigation of the building they found that the wall along Royal Street and St. Peter Street were leaning outward, that “hogties” or braces had been installed on the Toulouse and Bourbon Street sides of the building at some point long before defendants’ construction work was accomplished, and that on the inside of the building there were openings between the baseboard and the walls and between door frames and walls, which predated the construction work because of the presence of old fill in the openings. From these findings they felt that this 150 year old building had undergone settlement and movement over a long period of time. Furthermore, they were of the opinion that both of the cracks in the granite base found by Thompson predated the construction work because of the color of the granite in the cracks and the presence of dirt or debris inside the cracks. Although these witnesses felt that the foundation had been damaged by settlement prior to defendants’ work, they admitted the probability of some aggravation of this damage from the work. However, they were both of the opinion that it would be unwise for plaintiff to undertake the remedial work suggested by Thompson because such drastic renovations on the foundation would only serve to set into operation additional settlement and movement of the building where a stable condition now existed.

Thus, the trial judge was confronted with this problem: If the foundation work could be accomplished with absolute success plaintiff, in effect, would be put into a better position than it was in before defendants’ work because the evidence preponderates to the effect that some damage to the foundation pre-existed the work. On the other hand, because of the danger involved in attempting the work on the foundation the cure for plaintiff’s problem may very well be worse than the disease in the first instance, raising the probability that plaintiff would not even attempt to per-from the work. Mr. Thompson himself stated that even if plaintiff had the work done, which he recommended, he could not guarantee that the building would not crack any more. For these reasons the trial judge was apparently indisposed to award plaintiff the full amount of either estimate and, in his discretion, awarded some fraction of the amount it would take to install the new foundation recommended by Thompson.

As to the loss of income, plaintiff’s claim was based upon evidence that one of the residential tenants upstairs vacated, causing plaintiff to lose $140, and the supposition that the work recommended by Thompson would be undertaken with the result that the commercial tenant on the ground floor at the corner of the building would be required to vacate the premises for a period of about 12 weeks with resulting loss of rent of $1,100 per month. It seems likely that the renovation of the two corner apartments would interrupt occupancy of those apartments to some extent, but the award of a substantial amount for loss of income would be based largely on speculation and the trial judge probably included only a token amount for this item.

We have concluded that on the basis of the evidence and the legal principles mentioned at the outset of this discussion, the award of $20,000 was within the sound discretion of the trial judge and should not be disturbed by us on appeal.

The other issue before us is the liability of the City for contribution to defendants. They contend that the City is liable because it issued a building permit for the work and because it is the indirect beneficiary ofi the work which was performed. They also rely on Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905 (La.1973) as legal authority for their demand.

At the trial the parties stipulated that the City is not the owner of the street where the work was performed. This stipulation was merely a recognition of the law. The street is common property as provided in LSA-C.C. Art. 458. The inhabitants of the City by establishing the City of New Orleans as a government entrusted to it the right to regulate the streets under the police power of the City, but they did not thereby convey ownership of the streets to the City as a corporation. In the instant case, NOPSI already had electrical facilities under the streets involved and it opted to make certain changes in the location and type of those facilities. Because the City, in the exercise of its police power, controls traffic along these streets, and because it does under its constitutional rights issue building permits for any kind of construction whether in the streets or elsewhere, it did in fact issue a permit for NOPSI and Drennan to perform this work. The distinctions between this case and the Lombard case are sufficient to justify a different result. There, the City in conjunction with the Sewerage and Water. Board was constructing drainage facilities. It was the Art. 667 proprietor, not because the drainage facilities were located on a street but because the drainage facilities themselves belonged to the City and the Water Board. The court attached much significance to the effect of LSA-R.S. 33:4071 which vests ownership in the City over property or works acquired by the Water Board and which authorizes the City to expropriate property needed by the Board. Compare R.S. 19:2 which authorizes expropriation by such companies as NOPSI. In the instant case, the City has no ownership or proprietary capacity with respect to these electrical facilities or this project, and it is not an Art. 667 proprietor subject to liability along with defendants. The trial court correctly dismissed the third-party demand.

Accordingly, the judgment appealed from is affirmed, but plaintiff and defendants are each to pay their own costs of the appeal.

Affirmed.

      . Although the trial judge found that some minor cracks existed on the outside before commencement of the project this finding was based entirely on the photographs taken in May, 1972, which are in evidence. From our inspection of these photographs, we have concluded that defendants are not entitled to a credit against this $5,333.


author: BOUTALL, Judge.

text:
    CHRISTY-ANN-LEA, INC. v. CHARTER HOMES OF LOUISIANA, INC.
    No. 7220.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused May 4, 1976.
    Daniel J. Markey, Jr., New Orleans, for defendant-appellee.
    Gerard H. Schreiber, New Orleans, for plaintiff-appellant.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a suit in implied warranty for defects in a house. Defendant, Charter Corporation, an Alabama Corporation, filed a peremptory exception of prescription which was sustained by the trial court after a hearing on the merits. Plaintiff, Christy-Ann-Lea, Inc., has appealed the dismissal of its suit and we affirm.

The evidence shows that plaintiff is a building contractor and defendant is a modular home manufacturer. In 1971 plaintiff negotiated with Charter Homes of Louisiana, Inc., a dealer in modular homes, for the purchase of five modular homes. Charter Homes of Louisiana, Inc. obtained three homes from Charter Corporation and two from Vanguard Structures, another manufacturer. The three Charter homes were built by defendant and shipped to plaintiff in two sections to Slidell, La., there to be tied together, placed on a foundation, and finished by plaintiff. After each home arrived (at different times as ordered) it became apparent that each contained several defects and did not meet the City of Slidell’s Building Code.

This appeal concerns only the three homes delivered by Charter. The last home was delivered on June 22, 1971 and plaintiff filed suit for damages on September 12, 1972. The defects were all discovered well in excess of a year prior to suit. On this basis defendant filed a peremptory exception of prescription.

The liability of a manufacturer for defects in an article furnished to a dealer and sold by that dealer to a third person for use is subject to the application of the one year prescriptive period. Stelly v. Gerber Products Co., 299 So.2d 529 (La.App. 4th Cir. 1974) ; American Insurance Co. v. Hartford Acc. & Indem. Co., 198 So.2d 757 (La.App. 1st Cir. 1967). More than one year has elapsed between the discovery of the defects and the filing of suit. The trial judge correctly maintained the exception of prescription.

Plaintiff makes two arguments in support of its position that this claim has not prescribed. First, it asserts that this is an action for breach of contract and not implied warranty. Second, prescription was interrupted by defendant’s attempts to correct the defects.

Plaintiff argues that a ten year prescriptive period applies because this is an action for breach of contract. It agrees that there was no privity of contract between itself and defendant. The contract was between plaintiff and Charter Homes of Louisiana, Inc. and was not introduced at the trial. Plaintiff relies on the case of Media Production Consultants, Inc. v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377 (1972) for the proposition that privity of contract is implied between a consumer and a manufacturer. This view of Media is erroneous. The Media case actually held that there is an implied warranty between consumers and manufacturers without the need for privity of contract. The nature of this action is redhibition for the defects in the homes purchased, and as such, RCC articles 2534 and 2546 apply.

Plaintiff also makes the argument that the redhibition articles of the Civil Code dealing with implied warranty against defects should only apply in the consumer-seller situation. Since, plaintiff claims, this is not such a situation (that is plaintiff did not intend to be the ultimate consumer) they should not apply in this case. Plaintiff cites no authority for this position and we fail to see the reasoning behind it. We feel the redhibition articles were meant to apply to almost all sales no matter who the ultimate consumer be. They certainly apply here. We note that the representative of Christy-Ann-Lea, Inc. testified at trial that he purchased these homes as you would an automobile.' We further note that the modular units form only the main core of a finished house. The purchaser-contractor here had to install them on a foundation, connect the sections, roof them and do some finishing work before it could sell them to a customer as a home. It actually is a consumer in fact.

The second specification of error presented by plaintiff is that prescription was interrupted by certain acts of defendant. Plaintiff failed to prove or even mention what these acts were with one exception. It claims that defendant attempted to remedy the defects in the homes by trying to convince the Slidell City Council to accept plastic plumbing in lieu of the iron plumbing required by the building code. Defendant admits this action. The record does not disclose when this action occurred or under what circumstances it was done. We find that plaintiff has failed to prove by a preponderance of the evidence that prescription was interrupted by this act.

For the foregoing reasons the judgment of the trial court is affirmed. Plaintiff is to pay all costs.

Affirmed.

      . A default judgment was taken against Charter Homes of Louisiana, Inc., and Vanguard Structures.

      . The record discloses no relationship between the Alabama Corporation and the Louisiana Corporation other than the Louisiana Corporation did buy some modular units as an ordinary dealer.


author: STOULIG, Judge.

text:
    Denis A. DRENNING v. KUEBEL, INC., In Liquidation, et al.
    No. 7214.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Granted May 11, 1976.

      Tucker, Schonekas & Garrison, Gibson Tucker, Jr., and Charles A. O’Niell, Jr., New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Patrick J. Browne, New Orleans, for Kue-bel, Inc., in Liquidation, The Kuebel Co., Robert G. Kuebel, Kenneth A. Kuebel and Conrad M. Kuebel, defendants-appellees.
    Stone, Pigman, Walther, Wittmann & Hutchinson, Phillip A. Wittmann, New Orleans, for Mrs. Jo Ann Kuebel Williams, defendant-appellee.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Denis A. Drenning, a 25% minority stockholder in Kuebel, Inc., filed this suit to nullify a sale of the corporation’s primary asset from Omer Kuebel, Jr., as liquidator, to The Kuebel Company, a partnership composed of Robert G. Kue-bel, Kenneth A. Kuebel and Conrad M. Kuebel, who collectively held the other 75% interest in the liquidating corporation. Plaintiff’s suit to be recognized as owner of an undivided i/s (the other was owned in indivisión by his former wife) interest in the realty and to obtain an accounting of the liquidation was dismissed. Plaintiff has appealed.

Kuebel, Inc., was incorporated in the mid-1960s and its stock was held in equal proportions by defendants, Robert, Kenneth and Conrad Kuebel, and plaintiff, then married to Jo Ann Kuebel, defendants’ sister. The corporation acquired immovable property in New lOrleans East and constructed a building for the use of Deluxe Check Printers, Inc., at a cost of $200,000, which it borrowed from the Hibernia National Bank. To secure the indebtedness, the corporation signed and all individual stockholders endorsed a $200,000 promissory note, payable over a 10-year period.' The mortgagor-lessor pledged and/or assigned the monthly rental of $2,509 received from Deluxe under a 10-year lease, which was sufficient to amortize the obligation and render it self-liquidated, subject to the right in favor of the lessee to cancel after seven years’ occupancy.

The leasing agreement went into effect on April 1, 1968 and later that year plaintiff and his wife encountered marital problems which were resolved with a judgment of separation dated December 11, 1968 in a suit initiated by Jo Ann Kuebel Drenning and by a judgment of divorce dated December 15, 1970.

Once plaintiff’s marriage was dissolved, defendants tried to buy out the Drenning interest in the corporation and in a separate tract of land they owned individually and in indivisión for a nominal price. When plaintiff rejected this offer, the majority stockholders devised a plan to liquidate Kuebel, Inc., for the stated purpose of getting rid of Drenning. On July 6, 1971, Robert G. Kuebel, president of Kuebel, Inc., and Conrad M. Kuebel, secretary, called a meeting for July 19, 1971 to discuss the liquidation. Although an attempt was made to notify Drenning, he did not attend. Parenthetically, it is doubtful whether his 25% voting interest would have changed anything. The Kuebel brothers decided to liquidate and appointed their personal attorney and cousin, Omer F. Kuebel, Jr., liquidator for the corporation.

To avoid double taxation to the corporation and on the individual distribution to each shareholder, the liquidator was required to complete the liquidation and distribute the assets within one year from the time the resolution to dissolve was adopted under 26 U.S.C. § 337. Between July 19, 1971 and July 15, 1972, Omer Kuebel, Jr., as liquidator, did nothing to further the liquidation on his own initiative. He testified he had several casual conversations with either Drenning or Drenning’s attorney, the gist of which was either or both would do something about an appraisal.

On July 15, 1972, realizing the deadline for completion was fast approaching, Omer Kuebel, Jr., met with his three shareholder cousins and agreed to sell the principal asset (the realty) to The Kuebel Company, a partnership owned equally by the three Kuebel brothers. To arrive at a fair sale price, the liquidator testified he requested his licensed realtor cousin Kenneth Kuebel to make this determination. This realtor applied one hour of his “expertise” to this project and arrived at a gross valuation of $238,400. From this price the realtor deducted $11,500 (standard broker’s commission of 6% on the first $100,000 and 4% on the balance) which left $226,900. The liquidator rounded this figure off at $227,000.

The Kuebel partnership took title July 18, 1972, by paying the liquidator $95,512.-47 cash and assuming the mortgage balance of $131,487.53. The first knowledge Drenning received of the sale came in the form of a certified check for $20,390.61, representing his interest in the distribution from the sale of corporate assets after his debt to the corporation was deducted ($24,436.65 minus $4,046.04). We note Omer Kuebel, Jr., in liquidating Drenning’s interest in Kuebel, Inc., divested him of his interest in the corporate assets but failed to relieve him of the liability he had incurred as a shareholder. Drenning remained a personal endorser on the mortgage note held by the bank and assumed by The Kuebel Company partnership. Dren-ning refused to accept the payment tendered to liquidate his interest in Kuebel, Inc.

The record establishes beyond a doubt that the liquidator sold the property for $28,000 less than its market value. This observation is based on the testimony of defendants’ own expert realtor who placed the market value at $255,000. Defendants did not predicate their contention that a reasonable price was paid on fair market value. Rather, they used the premise that a quick sale condition prevailed and instructed their expert to project a reasonable price for the realty, assuming it must be sold within 10 days. The appraiser then adjusted the price from $255,000 to $231,500. Without commenting on the relative merits of the expert testimony tendered on value, we accept the figure of defendants’ realtor because they are bound by his testimony. This establishes the sale by the liquidator to the Kuebel partnership was $28,000 below market value.

The premise that the liquidator was forced into a distress sale by the inaction of plaintiff and his attorney is untenable. It was not the duty of the minority stockholder to conclude the affairs of the corporation in liquidation. Instead, the liquidator, who was paid for his services, was obligated to sell the assets at the best price available. Had the liquidator not permitted 11 months and 27 days to elapse before attempting any positive action toward disposal of the realty, either by public or by private sale, for its fair market value, he would not have been confronted with a distress sale situation. The crisis, if any, was of the liquidator’s making, not the minority stockholder’s.

L.R.S. 12:145 charges the liquidator with this responsibility:

“G. In the performance of his duties, each liquidator shall be bound to exercise that care and prudence in the listing, custody, possession, control and disposition of the property and moneys of the corporation coming into his hands, and in the proper accounting therefor, and distribution thereof, as by law is imposed upon fiduciaries.”

In Noe v. Roussel, the Supreme Court held there was a fiduciary relationship between the liquidator and shareholders of a corporation. It reasoned that when a corporation was voluntarily or involuntarily placed in liquidation the duties and powers of the former officers and board of directors devolved upon the liquidator and therefore he was obligated to conduct himself in the same manner as are the officers and directors by L.R.S. 12:91. It states:

“Officers and directors shall be deemed to stand in a fiduciary relation to the corporation and its shareholders, and shall discharge the duties of their respective positions in good faith, and with that diligence, care, judgment and skill which ordinarily prudent men would exercise under similar circumstances in like positions. Nothing herein contained shall derogate from any indemnification authorized by R.S. 12:83.”

It is plaintiff’s position the liquidator is the alter ego of the majority stockholders because he is their cousin as well as their personal attorney. As their attorney, of course, he is their agent and although he testified he acted for all the shareholders in the liquidation and did not favor his clients, we do not think anyone can serve “two masters” with equal impartiality and objectivity. We conclude that the appointment of Omer Kuebel, Jr., as liquidator is tantamount to having all the majority stockholders in this position of trust. We do not mean to imply the appointment was illegal, but we do think all transactions for the corporation in liquidation as they affected the minority stockholder Drenning, against whom the three Kuebels were allied, should be closely scrutinized. When a transaction between the liquidator or his principals with the corporation is questioned, the liquidator has the burden of proving that the elements of good faith and fair value were observed in its confection. Noe v. Roussel, 310 So.2d 806 (La.1975).

In this case the defendant liquidator is obligated to establish by a preponderance of the evidence the sale of the realty was for a fair and reasonable price. His own expert appraiser established the contrary.

Noe stated as a general rule the successful shareholder has the option of having a questionable sale set aside or claiming damages. However, in Noe the shareholder was not permitted to have the sale annulled because it had been transferred to a third party. Acknowledging the sale was highly questionable, the Supreme Court nonetheless applied the rule of McDuffie v. Walker because no lis pendens was outstanding when the property was conveyed. Therefore, damages were awarded.

In the instant case the partnership has title and we have no question of a good faith third-party acquisition and/or a reliance on the McDuffie rule of public registry. Accordingly, with respect to the interest of plaintiff, the sale is cancelled and nullified and he is hereby recognized as owner of an undivided Ys interest. The interest owned by his divorced wife (Jo Ann Kuebel Drenning Williams) is also returned to her by this decree. A nominal plaintiff because of her ownership, her attorney requested this court to make whatever disposition of her interest it deemed proper. Mrs. Williams took no active part in this litigation against her brothers.

In addition, there were other small assets the liquidator sold on a quick sale basis and there were certain expenses incurred-in the liquidation. Plaintiff Drenning and his former wife are entitled to an accounting.

For the reasons assigned, the judgment of the trial court is reversed and it is now ordered there be judgment in favor of Denis A. Drenning and Jo Ann Kuebel Drenning Williams ordering Omer Kuebel, Jr., to render an accounting to them covering the liquidation of Kuebel, Inc.

It is further ordered, adjudged and decreed that the sale of the undivided Ys interest owned by Denis A. Drenning and the undivided Ys interest owned by Jo Ann Kuebel Drenning Williams be annulled and set aside and cancelled from the conveyance records of Orleans Parish in book 709, folio 295 and from the mortgage records of Orleans Parish in MOB 2215, folio 271 and Denis A. Drenning and Jo Ann Kuebel Drenning Williams are hereby recognized as owners of an undivided Ys interest each in and to the following described property:

“ONE CERTAIN PORTION OF GROUND, TOGETHER with all the buildings and improvements thereon, and all the rights, ways, privileges, servitudes, appurtenances and advantages thereunto belonging or in anywise appertaining, situated in the State of Louisiana, Parish of Orleans, in the Third Municipal District of the City of New Orleans, in that portion thereof known as the New Orleans East Tract (formerly known as Faubourg deMontluzin) and in SQUARE D of the NEW ORLEANS EAST INDUSTRIAL CENTER SUBDIVISION, as said Square D is shown and designated on plan of subdivision made by F. C. Gandolfo, Jr., dated March 2, 1961, as revised under date of August 2, 1961, and bearing the final approval of the City Planning Commission thereof dated September 6, 1961, and which said plan is registered in COB 638, folio 686 of the records of the Register of Conveyances for the Parish of Orleans and Designated as LOT 8B on a plan of resubdivision by the office of Gandolfo, Kuhn & Associates, dated April 25, 1967, comprising a portion of former Lot 8, Square D, and more particularly described as follows in accord with said plan:
“Lot 8B commences at the intersection of a line 1 foot west of and parallel to the East line of Square D and the North line of Old Gentilly (Gentilly Road) Highway; thence along a line 1 foot West of and parallel to the East line of Square D, N5°42'27/'W a distance of 1646.83 feet to the Southeast corner of Lot 8B and the point of beginning; thence along the South Line of Lot 8B S 84° 17'33" W a distance of 568 feet to the East line of Michoud Boulevard; thence along said East line N 5°42'27"W a distance of 105 feet to the South line of Lot 8A; thence along said South line N84°17/33" E a distance of 201 feet to the East line of Lot 8A; thence along said East line N5°42/27" W a distance of 150 feet to the North line of Lot 8B; thence along said North line N 84° 17' 33"E a distance of 367 feet to the East line of Lot 8B; thence along the East line of Lot 8B which is 1 foot West of and parallel to the East line of Square D, S 5°42'27"E a distance of 255 feet to the Southeast corner of Lot 8B and the point of beginning. Containing 114,690 square feet.”

It is further ordered that plaintiffs, Denis A. Drenning and Jo Ann Kuebel Dren-ning Williams, return to the liquidator, Omer Kuebel, Jr., his successor, or assign any consideration tendered and which plaintiffs may presently possess resulting from the liquidation of Kuebel, Inc.

Defendants are to pay all costs.

Reversed and rendered.

      . Although Kenneth Kuebel testified it was unethical for an appraiser to set the price on property he himself was acquiring, he found no conflict of ethics in appraising the realty he was buying as a partner from a liquidating corporation in which he held a 25% interest.

      . While this case was pending before us, a release was executed by the bank in Dren-ning’s favor.

      . Todd Shipyards Corporation v. Lomm, 190 So.2d 125 (La.App.4th Cir. 1966) ; Brown & Son v. Wholesalers, Inc., in Liquidation, 52 So.2d 321 (La.App.1st Cir. 1951).

      . 310 So.2d 806 (La.1975).

      . 125 La. 152, 51 So. 100 (1900).


author: ELLIS, Judge.

text:
    Doris E. Delecerda PARENT v. Charles Jean PARENT.
    No. 10541.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 13, 1976.
    Walton J. Barnes, Baton Rouge, for appellant.
    Charles Jean Parent, in pro per.

      Before ELLIS, BLANCHE, and LOT-TINGER, JJ.
   ELLIS, Judge.

By this appeal, plaintiff Mrs. Doris E. Delacerda Parent, now Prescott, seeks an increase in the child support awarded her by the court below.

These parties were divorced in August, 1964. Mrs. Prescott has had custody of their two daughters, who are now 15 and 13 years of age, since that time. Prior to this contest, Mr. Parent had been paying $130.00 per month child support. Mrs. Prescott brought the rule on October 24, 1974, and it was heard on November 21, 1974, at which time the support was increased to $180.00 per month.

A new trial was granted, and a hearing was held thereon on April 3, 1975, at which time the court maintained the payments at $180.00 per month, and this appeal followed.

The record shows that Mrs. Prescott has remarried since her divorce from Mr. Parent, and has two children by her second marriage. 'At the time of the November 21 hearing, she was separated from Mr. Prescott, but was employed at a take home pay of $59.00 per week. At the time of the April 3, 1975, hearing, she was again living with Mr. Prescott who was employed at a weekly salary of $175.-00, apparently after deductions. However, she testified that because of difficulty with the older Parent child, she had been forced to quit her job to spend more time at home. She testified that she needed $386.50 monthly to maintain her two children by Mr. Parent.

Mr. Parent has also remarried. His second wife has two children by a former marriage, and has borne one child to Mr. Parent. At the time of the April hearing, she was four months pregnant, and in bad health. Mrs. Parent' receives $150.00 per month in child support for her two children by her former husband.

Mr. Parent has a monthly take home pay of $809.90. However, he received a net bonus of about $2,500.00 in 1974, and an income tax refund of about $750.00, which gives him a monthly net income of slightly less than $1,100.00. He itemized his monthly recurring expenses, exclusive of food and miscellaneous items, but including the $180.00 child support, at $844.70. Among miscellaneous items not included were laundry, entertainment, gasoline and personal items.

Taking into account Mr. Parent’s salary, bonus and tax refund, and Mrs. Parent’s child support, we find that Mr. Parent has about $400.00 per month available for food and other miscellaneous expenses mentioned above. He also testified to outstanding medical bills of $691.00 and a lawyer’s fee of $175.00.

In this court, Mrs. Prescott argues that the trial court erred in disregarding the voluntary nature of many of Mr. Parent’s obligations, including recent purchases of a new home and a new car, the payments on which are $210.79 and $99.42 respectively. It is argued that such acquisitions should not be used as an excuse for not being able to provide adequately for his children. It is not shown that either of these items are extravagant or unnecessary.

It is further argued that the trial court failed to consider the father’s increased circumstances or the needs of his two daughters in fixing the award.

It is now the law of this state that the court must consider all of the circumstances surrounding the parties in making determinations of this kind. This includes considering income from all sources, including that of second husbands and wives, child support payments coming in, and special needs of the parties, including the expenses of subsequent marriages. Marcus v. Burnett, 282 So.2d 122 (La.1973).

The trial judge took these factors into consideration, and increased the child support payments of Mr. Parent from $130.00 to $180.00 per month. After reviewing the record, we find no manifest error in his conclusion.

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

Affirmed.


author: CUTRER, Judge.

text:
    Eugene C. FONTENOT, Plaintiff-Appellant, v. Mr. and Mrs. John Allen GUILLORY et al., Defendants-Appellees.
    No. 5354.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 1976.
    Rehearing Denied March 11, 1976.
    Writ Refused April 23, 1976.

      Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, J. William Pu-cheu, Ville Platte, for defendants-appellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

Suit was brought by plaintiff, Eugene C. Fontenot, for injuries sustained as a result of a motorcycle-automobile accident allegedly caused by the negligence of the minor son of defendants, Mr. and Mrs. John Allen Guillory. Also made defendant was State Farm Mutual Automobile Insurance Company, defendant’s automobile liability insurer and plaintiff’s automobile insurer. A pre-trial stipulation left for the court’s determination the question of quantum and insurance coverage. Judgment was rendered in favor of plaintiff awarding him a total of $72,498.18, plus legal interest, subject to a credit for amounts already paid by defendants. Plaintiff has appealed from that judgment asking for an increase in quantum as well as a reversal of the trial judge’s decision which limited the insurance coverage available to plaintiff. Defendant, John Allen Guillory, has answered the appeal asking for a reduction in the amount of the damages awarded. We affirm.

The accident which brought about this litigation took place on March 4, 1974, about 6:30 in the evening. The collision took place on Louisiana Highway 104 in Point Blue, Evangeline Parish, Louisiana. Plaintiff was proceeding in an easterly direction on La. Highway 104 at the time of the accident. Ricky Guillory, the fifteen year old son of defendants, was driving the family automobile, a 1964 Chevrolet. He was attempting to leave the parking area of a store located adjacent to the highway, and as he entered the highway he struck the plaintiff. Defendants do not dispute the contention by plaintiff that the accident was caused solely by the negligence of Ricky Guillory, for which his father is vicariously liable. The issues before the trial court and this court involve only quantum and a determination of insurance coverage available.

On appeal plaintiff alleges error on the part of the trial court in failing to award plaintiff his loss of past earnings. Plaintiff lost $3,155.16 in wages in connection with his employment with the Department of Public Works. In addition, he had part-time jobs with the Snack Shack and with the Kwik Serve. The total of lost wages from part-time employment during the six-month period of disability as a result of the accident was $1,251.92. The trial judge’s written reasons for judgment clearly indicated that the plaintiff’s lost wages were included within the award made. The language of the court is as follows: “The Court feels that an award for general damages, loss of earnings, for past and future, disability should be the amount of SIXTY THOUSAND ($60,000.00) DOLLARS.” Since the trial judge’s written reasons for judgment set out what the award was for, we find no merit to plaintiff’s first contention of error.

Plaintiff next alleges error on the part of the trial court in not awarding at least $100,000.00 for his disability, pain and suffering. Plaintiff bases this argument for an increase in the general damage award on LeBlanc v. Roy Young, Inc., 308 So.2d 443 (La.App. 3rd Cir. 1975). In that case the plaintiff, a roughneck employed by Pernie Bailey Drilling Company, Inc., was assisting in the “rigging-down” operations in preparation for transporting a drilling rig to another location. Plaintiff received a severe injury to his left knee when the crown section of the derrick shifted and struck his left knee. The injuries sustained by the plaintiff were described in this court’s opinion as follows:

“(1) comminuted fracture of the upper portion of the tibia . . . extending into the left knee; . . . (2) fracture of the lower left femur . . . extending into the articular surface of the knee; ... (3) torn knee ligaments and cartilages; (4) part of knee joint split open.”

Taking into consideration the age of the plaintiff, his limited education, his inability to get a job outside of the hard labor market, and the fact that he was permanently disabled so that he would never be able to return to work which required hard labor, this court determined that an increase in the general damage award was required.

In the present case, plaintiff suffered a compound comminuted fracture of the tibia and fibula. Numerous internal fixations to repair the bone damage and multiple skin grafts were required due to the tearing away of much of the skin of plaintiff’s right calf. Subsequent to his discharge from the hospital, plaintiff suffered severe chest pains and was rushed to the hospital. A diagnosis of multiple pulmonary emboli was made and surgery was required to save plaintiff’s life. Plaintiff was readmitted at a later date with “footdrop,” which required further surgery. The only doctor who testified with reference to plaintiff’s injuries and their treatment was Dr. Frank Savoy, Jr., of Mamou. His prognosis does not indicate that the injury received by plaintiff would permanently disable him with reference to his work surveying for the Department of Public Works. In addition, the opinion of Dr. William L. Meuleman, who treated plaintiff, was that, as of January 13, 1975, the plaintiff’s recovery appeared to be quite good with minimal residual effects. This conclusion was contained in a letter from Dr. Meuleman to plaintiff’s attorney, a copy of which was introduced into the record.

In LeBlanc, plaintiff was a 28 year old male employed as a roughneck. His education was limited to finishing the eighth grade. He had worked only on jobs associated with hard labor, and the injuries sustained by him effectively removed him from the job market. In the present case, plaintiff is a 34 year old male with a high school education. He has a job surveying for the Department of Public Works. The record does not indicate that he is permanently disabled. An important factor before this court in the LeBlanc case, which required an increase in the amount of the award, was the loss of future earnings which plaintiff bore as a result of the accident. This factor is not present in the case at bar. We note that in his written reasons for judgment the trial judge stated that plaintiff had referred him to the Le-Blanc case. The trial judge concluded that a similar award in this case was not appropriate because the injuries sustained and the loss of earnings incurred in the Le-Blanc case were substantially more severe and higher, respectively, than those involved in the present case. We agree with the conclusions of the trial court.

We note in reviewing this allegation of error the guidelines set for appellate review of the amount of damages awarded by the trial court. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974). We find no abuse of the “much discretion” placed in the trier of fact by LSA-C.C. art. 1934.

Plaintiff alleges error on the part of the trial court in not awarding him $5,000.00 under the “S/T Coverage” provisions of the policy issued to him by State Farm. Exhibit “D-l” is the policy of insurance provided to plaintiff by State Farm. Plaintiff directs the court’s attention to the provisions of the declaration sheet attached to the front of the policy and made a part thereof. It provides a block entitled “ITEM 7 — PERSONS INSURED — COVERAGES/T,” which is filled in with Eugene Fontenot’s name as the insured, “S” as the coverage and $5,000.00 as the amount of coverage. The- coverage explanations contained on the declaration sheet indicate that “S” coverage is death and dismemberment coverage; “T” coverage is disability coverage. Plaintiff argues that the availability of “S/T Coverage” entitle him to recover $5,000.00. He bases his claim for “T” coverage on the allegation that he was totally disabled for six months following the accident. He bases his claim for “S” coverage on the contention that his lower right leg was almost completely amputated as a result of the accident.

Plaintiff’s contention that he is entitled to disability payments under the policy is without merit. Within the area on the declaration sheet described above, the only coverage listed is “S” coverage, which is death and dismemberment coverage. “T” coverage is not listed, and is not available to plaintiff.

Plaintiff’s second contention, that he is entitled to dismemberment coverage because of the almost complete amputation of his right leg, is also without merit. The policy makes a clear distinction between dismemberment and fractures. In the present case, plaintiff did not lose his leg through amputation, but in fact received a severe compound fracture of the leg, which included the tearing loose of some of the muscles and ligaments of the leg in the area of the injury. Plaintiff was paid for the fracture of the leg bone under the terms of the “S” coverage. He is entitled to no more coverage under “ITEM 7” of the policy.

Plaintiff next argues that the trial court erred in not permitting the stacking of defendant’s two liability policies. The policies issued by State Farm to Guillory were in full force and effect on the date of the accident, one covering a 1964 Chevrolet automobile that was being driven at the time of the accident and the other on a 1970 Chevrolet pickup truck belonging to defendant. This latter vehicle was not involved in the accident. Each policy provides for bodily injury liability coverage in the amount of $10,000.00. Plaintiff argues that the coverage provided by the two policies should be stacked or combined so as to make available a total of $20,000.00 coverage for the injuries he has sustained. State Farm concedes coverage by the policy written for the 1964 Chevrolet automobile being driven at the time of the accident but denies coverage by the policy written for the pickup truck. We agree with the position taken by State Farm.

The terms of the policy on Guillory’s 1970 pickup truck are, in pertinent part, as follows:

“COVERAGE A — Bodily Injury Liability; To pay on behalf of the insured all sums which the insured shall become legally obligated to pay in damages because of: . . . bodily injury . . arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile . .
* * * * * *
“Persons Insured .
“(a) with respect to the owned automobile,
“(1) the named insured and any resident of the same household. .
“(b) with respect to a non-owned automobile,
“(1) the named insured,
“(2) any relative . .
******
Definitions. Under Part I :
“ 'named insured’ means the individual named in Item 1 of the declarations and also includes his spouse .
“ ‘relative’ means a relative of the named insured who is a resident of the same household;
“ ‘owned automobile’ means
“(a) a private passenger, farm or utility automobile described in this policy . . .
******
“ ‘non-owned automobile’ means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative . . . . ”

The declaration sheet on this policy provides for liability coverage arising out of the use of the 1970 Chevrolet pickup truck. It does not name as an insured automobile the 1964 Chevrolet automobile involved in the accident, so that vehicle is not an “owned automobile” under the terms of the policy for purposes of liability coverage. Nor is the 1964 Chevrolet a “non-owned automobile” under the terms of the policy covering liability arising out of the use of the pickup truck. The 1964 Chevrolet was owned by Guillory, so that it did not qualify as a “non-owned automobile” under the pickup truck policy. Since State Farm’s liability arises only out of the ownership, maintenance or use of either an “owned”, or “non-owned automobile,” as defined in the policy, no liability coverage is provided under the policy covering the pickup truck for an accident involving the use of the 1964 Chevrolet. We find support for the conclusions we reach in Dudley v. State Farm Mutual Automobile Insurance Co., 255 So.2d 462 (La.App. 1st Cir. 1971). In that case the First Circuit was confronted with the same issues as those presented by plaintiff’s argument herein. The court denied the combining of liability policies written for defendant for the same reasons as those we state above. We find those reasons persuasive.

Plaintiff next argues that the uninsured motorist coverage provided under the two policies issued to him by State Farm should be available to provide additional coverage for his injuries. He alleges error on the part of the trial court in denying this claimed coverage. The basis for this argument is plaintiff’s contention that the effective date of Act 154 of the 1974 Legislature was twenty (20) days following the end of the legislative session. Since one of the two policies carried by plaintiff was still in effect when the Act amending LSA-R.S. 22:1406(D)(2)(b) became law, plaintiff argues that the statutory change in the definition of “uninsured motor vehicle” should apply to the accident which took place on March 4, 1974.

The issue presented by this argument has been ruled on by this court in Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3rd Cir. 1974). This court held that the 1974 amendment to the uninsured motorist statute was not retroactive in its application, so as to apply to an accident which occurred before the 1974 amendment became effective. In the present case the accident occurred on March 4, 1974, prior to the convening of the legislative session. The effective date of the amendment to the uninsured motorist statute came after its passage by the Legislature.

Therefore, the amendment which broadens the term “uninsured motor vehicle” to include an insured vehicle covered by liability insurance in an amount less than the amount of damages suffered by the insured does not apply to the accident which gave rise to this litigation. Since defendant is not an uninsured motorist under the provisions of the statute, as amended in 1972, plaintiff’s uninsured motorist coverage is not available.

Plaintiff’s final allegation of error is in the court’s failure to permit plaintiff to collect legal interest on $8,379.58 from the date of judicial demand, August 14, 1974, until January 28, 1975, the date plaintiff alleges he actually received that amount. Defendant contends that the amount was tendered to plaintiff on December 1, 1974, in the form of a check, which contention plaintiff does not dispute. Plaintiff simply refused to cash the check, arguing that he was entitled to legal inter-, est on the amount past December 1. The trial judge held that plaintiff was entitled to legal interest on that amount from the date of judicial demand until plaintiff received the check. We agree. There was no dispute over the $8,379.58 due under the policy terms providing bodily injury liability coverage in connection with the use of the 1964 Chevrolet automobile involved in the accident. The record reflects that defendant delivered a negotiable instrument, either a check or draft, to plaintiff on December 1, 1974, in payment of that amount not in dispute. Plaintiff accepted the instrument, but did not cash it. Later, when a “Receipt and Partial Release” was signed on January 28, 1975, plaintiff tried to reserve the right to legal interest on the amount past December 1, 1974, by adding to the Release a handwritten reservation of rights to the interest. Plaintiff cannot continue the running of legal interest simply by refusing to cash the check.

Defendant, Mr. Guillory, has answered the appeal in this case arguing that the award should be reduced. In our discussion above of the plaintiff’s second allegation of error, we noted the guidelines placed upon the courts of this state in reviewing the amount of damages awarded by the trial court. We stated above that the trial judge did not abuse his “much discretion” in the case at bar. We can no more reduce the award in this case than increase it in the absence of a finding of abuse of discretion. Bitoun v. Landry, supra.

For the reasons assigned, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

Affirmed.

      .LSA-R.S. 22:1406(D)(2)(b), as amended in 1972, provided as follows:
      “For the purpose of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by an insured.”
      As amended in 1974, the statute provides as follows:
      “For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident,- as agreed to by the parties and their insurers or as determined by final adjudication.”

      . Writ denied, La., 305 So.2d 134.

      . Gu. ry was not driving an “uninsured motor vehicle” as defined under LSA-R.S. 22:-1406(D)(2)(b), as amended in 1972, because the automobile liability insurance coverage on Guillory’s vehicle was not less than the uninsured motorist coverage carried by plaintiff.


text:
    Mrs. Sharon Jochum, wife of/and Henry JOCHUM, Individually and for the use and benefit of his minor son, Bart Jochum v. CONTINENTAL INSURANCE COMPANY.
    No. 7219.

    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Frank J. D’Amico and George H. Jones, New Orleans, for plaintiffs-appellees.
    Christovich & Kearney, Robert E. Pey-ton, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Defendant appealed from a judgment in favor of plaintiffs for damages arising out of an automobile collision which occurred on June 26, 1970.

The trial record included only the testimony of plaintiff, Mrs. Jochum, and photographs of her vehicle. Defendant’s driver had moved out of state and was not susceptible to subpoena. The officer who investigated the accident was also unavailable despite attempts by both parties to subpoena him. Plaintiff’s testimony reveals the following :

The accident occurred at 12:30 AM after plaintiff, Mrs. Jochum, drove her car from the Joy Panorama Theatre in Metairie onto the west bound side of Airline Highway. Plaintiff drove a short distance, three to four car lengths, on the highway, traversing two lanes and stopping in the third left-hand lane, intending to make a left turn through the neutral divider. She did not look in her mirror and did not see defendant’s car. A second after her car stopped it was struck from the rear by defendant’s vehicle.

The question presented on appeal is whether plaintiffs carried their burden of proof that the negligent operation of defendant’s vehicle was the cause in fact of the accident. We have concluded that they did not.

Both at trial and in her deposition, plaintiff testified that defendant’s driver admitted to drinking prior to the accident, and driving his vehicle at a rate of 75 miles an hour at the time of the accident. But on cross-examination, plaintiff acknowledged that her vehicle moved only a distance of. “a few feet” upon impact. The pictures of plaintiffs’ small foreign car reveal relatively slight damage. These facts make it highly improbable that her vehicle was struck by another traveling 75 miles per hour. Pretermitting this consideration, however, in view of plaintiff’s acknowledged failure to maintain an adequate lookout, her abrupt maneuver in crossing the highway in front of advancing traffic, and her stopping in the left lane where she was almost immediately struck, there is no proof of actionable negligence on the part of defendant’s driver. Gaudet v. Berndt, 286 So.2d 191 (La.App. 4th Cir. 1973). On the contrary, plaintiff’s testimony shows that the accident was caused by her own negligence in putting her automobile in front of defendant’s oncoming vehicle whose driver could not have avoided the accident. See LSA-R.S. 32:81(A), Aetna Casualty and Surety Company v. Henry, 307 So.2d 375 (La.App. 1st Cir. 1974).

Accordingly, the judgment of the trial court is reversed and set aside and there is judgment in favor of defendant, dismissing plaintiffs’ suit at their cost.

Reversed and rendered.