author: BEER, Judge. REDMANN, Judge, SCHOTT, Judge,

text:
    SNELLING AND SNELLING, INC. v. Vernon NIVEN.
    No. 8541.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Jackson & Hess, Leonard A. Washofsky, New Orleans, for defendant-appellant.
    Cameron C. Gamble, New Orleans, for plaintiff-appellee.
    Emile J. Ramirez, New Orleans, for defendant-appellee.
    Before REDMANN, GULOTTA, BOU-TALL, SCHOTT and BEER, JJ.
   BEER, Judge.

Snelling & Snelling, Inc., personnel consultants, originally filed this suit for a fee against Vernon Niven and, subsequently, amended to join Donald Palmer, Inc., his employer. Niven answered and filed a third party demand against Palmer, alleging that Palmer had agreed with Snelling & Snelling and with him that they would pay the fee, which amounted to $2,520.00.

Niven, a licensed engineer, had applied to Snelling & Snelling for assistance in securing employment and had contracted to pay a percentage based fee for their professional services if employment was secured.

Snelling & Snelling set up an interview with Donald Palmer, Inc., who hired Niven. At that time, there was no discussion between Niven and Palmer regarding the fee.

Shortly thereafter, according to Niven, the Snelling & Snelling representative, Mrs. Ward, called him and urged that he get Donald Palmer, Inc. to pay the fee. He testified that bills were sent to him, and copies were mailed to Palmer. But it was not until Niven began to be dunned for the fees that he specifically discussed the matter with Palmer.

Niven contends that, as a result of this discussion, Palmer advised him not to worry about the fee bill, that he (Palmer) would take care of it. Part of the fee bill was, in fact, taken care of by Palmer. Two checks totaling $900 were paid to Snelling & Snell-ing by Donald Palmer, Inc. However, Palmer testified that he considered these checks to be bonuses to Niven, an effort to help him out since he incurred the hardship of driving over 200 miles per day to work for the corporation. Palmer categorically denied that he ever promised to assume the obligation. Niven further claims that Palmer offered to pay the balance due if he would' sign a note to Snelling guaranteeing payment. Niven refused.

Further attempts by Snelling & Snelling to collect from either Niven or Palmer proved fruitless and this suit resulted.

The trial judge concluded that Niven was indebted to Snelling & Snelling in the amount of $1,620.00 ($2,520.00 less the $900.00 already paid), plus 25% attorney’s fees as provided in the contract, plus interest and costs. He further concluded that an agreement existed between Niven and Palmer which had arisen when Palmer agreed to take care of the bills which Niven had been receiving. The court, therefore, cast Donald Palmer, Inc. in judgment for $1,620.00, plus interest and costs.

Donald Palmer, Inc. suspensively appeals, contending that Niven did not carry the burden of proving that Palmer promised to pay the entire agency fee and further alleges trial court error in casting it for interest and costs since the court had, at the end of trial, observed that costs would “probably” not be taxed to third party defendant.

The only question before us on this appeal is whether Donald Palmer, Inc. assumed the debt of Vernon Niven.

Appellant’s first contention is that parol evidence of their alleged assumption of Niven’s debt should have been excluded by application of La.Civ.Code art. 2278(3). However, in Baskin v. Abell, 14 La.App. 601, 122 So. 133, 134 (2nd Cir. 1929), the court, while reserving its opinion as to the original creditor’s rights to enforce an allegedly assumed obligation, remarked that as between the parties, “the statute contemplates the mere promise of one man to be responsible for another, and cannot be interposed as a cover and shield against the actual obligations of the defendant himself . .” Article 2278(3) has no application in a suit between the actual parties to the assumption agreement.

In Fabacher v. Crampes, 166 La. 397, 117 So. 439, 441 (1928), the Louisiana Supreme Court set forth the now well established rule that:

“ . . . the prohibition against the admission of parol evidence to prove a promise to pay the debt of another, does not apply (1) when the promise is made, upon adequate consideration, to the debt- or himself, or (2) when the promise, even though made to the creditor, is given with the consent of the debtor, and the promisor has in his hands, or afterwards receives, money or property belonging to the debtor, to be applied to the debt. For in both these cases it is an original and direct understanding by the promisor towards the debtor himself, and not at all a collateral undertaking to pay the debt of another. (Citations omitted.)”

As we have previously noted, “for business or pecuniary reasons a person may bind himself for the payment of the debt of another — make his own obligation the primary, not collateral, obligation, and thereby take the case out of the prohibition laid down in Article 2278 of the LSA-Civil Code.” Custom Contract Company v. Nims, 145 So.2d 374, 375 (La.App.). Accord, Powell Lumber Company v. AFCO Corporation, 288 So.2d 697 (La.App. 3rd Cir. 1974); Pace v. Rizzuto, 182 So.2d 809 (La.App. 4th Cir. 1966). Cf., J & J Home Supply, Inc. v. Grisaffe, 316 So.2d 172 (La.App. 1st Cir. 1975) (wherein plaintiff failed to prove business reason and parol was held inadmissible).

By paying the fee, Donald Palmer, Inc. received the consideration of the continued employment of its then employed production superintendent, Niven. A similar finding resulted in Burke v. Elmer Candy Company, 251 So.2d 786 (La.App. 1st Cir. 1971), where the court found that the advantage to a landowner that a land clearing operation continue uninterrupted was sufficient consideration to support owner’s president’s oral assumption of general contractor’s obligation to pay subcontractors working on owner’s land.

Thus, in the instant case, parol evidence consisting, in part, of testimony of Mrs. Ward, tending to prove that third-party defendant had agreed to pay the fee at or about the time Niven was hired, and testimony of Niven that Palmer later agreed he would “take care” of the bills, was admissible evidence on which the trial court might properly base its opinion that Palmer assumed the obligation.

The second issue raised by appellant is whether Niven met his burden of proof. Appellant argues that where the unsupported testimony of a party having the burden of establishing a particular fact is contradicted by the testimony of the other party and the credibility of neither is attacked, in the absence of corroborating circumstances, it cannot be said that the party having the burden of proof has sustained that burden, citing Johnson v. Johnson, 296 So.2d 470 (La.App. 2nd Cir. 1974); Marchese v. White System, Inc., 235 So.2d 141 (La.App. 4th Cir. 1970), and Diaz v. Breaux, 252 So.2d 697 (La.App. 1st Cir. 1971).

In our view, more than the uncorroborated testimony of Niven was adduced at trial. Niven’s contention that Palmer assumed the debt by agreeing to “take care” of the bills is supported by the fact that Palmer did, in fact, mail several payments directly to Snelling & Snelling. Mrs. Ward’s assertion that Palmer agreed on the phone to pay the fee is corroborated by the fact that Palmer received copies of Niven’s fee bill, and letters soliciting payment were directed to both Niven and Palmer.

Appellant contends that the trial court erred in taxing costs to it after having announced to the contrary at trial. However, the record indicates that the trial judge merely remarked:

“Obviously Palmer is not obligated to pay attorney fees or, probably court costs.” (Emphasis added.)

In our view, the trial judge reserved his final opinion on the matter of costs, and his judgment taxing costs to Donald Palmer, Inc. falls within the wide discretion accorded to him in this regard.

The judgment is affirmed. Each party to this appeal is to bear its own costs.

AFFIRMED.

REDMANN and SCHOTT, JJ., dissent.

REDMANN, Judge,

dissenting.

Snelling’s exaction from Niven of an assignment of wages (according to Snelling’s fee calculation, 93% of Niven’s wages during each of the first two months of the employment!) makes the contract “void and unenforceable in any court”, La.R.S. 23:112:

“No employment agency shall receive or require any applicant to execute any . . . assignment of wages or salary . . . unless said document has been approved both as to form and content by the commissioner of labor or his authorized representative. The commissioner shall approve any such papers such as are permitted by this section. Every such paper or other document executed contrary to the provisions of this section shall be void and unenforceable in any court.” (Emphasis added.)

The statute declares a general rule of voidness and unenforceability. It does contain an exception, for any “document . approved both as to form and content by the commissioner of labor . . ..” A

litigant who claims the benefit of an exception to a general rule bears the burden of establishing that he comes within the exception; Hortman-Salmen Co. v. White, 1929, 168 La. 1049, 123 So. 709. Plaintiff did not present any evidence to avoid the general rule’s applicability and therefore thé contract sued on is “void and unenforceable in any court.”

The judgment against Niven should therefore have been in his favor, dismissing Snelling’s suit. The correct judgment as between Niven and Palmer is therefore one dismissing the third-party demand. Surely Palmer should not pay for Niven’s failure to appeal, even if no relief can be given to Niven.

Because Niven did not himself appeal, ordinarily the judgment against him would not be subject to reversal or modification on this appeal. However, the evidence establishes, if anything, that it was Palmer with whom Snelling struck an agreement to be paid for services. Palmer was the principal debtor, and Niven was but a surety for Palmer’s debt.

Because Niven' was Palmer’s surety, Palmer owes to Niven both an indemnification against being made to pay the debt, C.C. 3057, and reimbursement of any actual payment, C.C. 3052. It is only “[wjhen the surety has paid without being sued and without informing the principal debtor, [that] he shall have no recourse against the latter, provided that, at the time of payment, the debtor was in possession of such means as would have enabled him to have the debt declared extinct; . . . ” C.C. 3056. (That article continues “but in this case [of no suit against the surety] the surety has recourse to the creditor for restitution.”)

Our surety, Niven, did inform the principal debtor, Palmer, (by third-partying him) and therefore does have recourse against him. That being so, Palmer could have intervened in the trial court in the Snelling v. Niven action, and therefore has the necessary interest in the judgment against Ni-ven to seek its modification by appeal under La.C.C.P. 2086: “A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.” Palmer did appeal from the one judgment rendered (although his sole expressed interest was that the third-party demand against himself be dismissed), and his appeal brings before this court that judgment in its entirety (unlike an answer to an appeal, C.C.P. 2133) insofar as pertinent to Palmer’s interest, including the judgment against Niven.

We should reason that Palmer’s obligation of reimbursement and indemnification towards his surety, Niven, obliges Palmer to pay Niven if Niven remains cast, and therefore Palmer’s appeal of necessity brings before us for review the judgment against Niven in favor of’Snelling. To rule otherwise is to obliterate Palmer’s right of appeal. Niven, after all, is in the position of being unconcerned: whatever he is cast for, his evidently solvent ex-employer Palmer owes him. If Palmer’s appeal does not allow reversal of the judgment against Ni-ven then Palmer’s appeal is futile.

This view is analogous to that of Emmons v. Agricultural Ins. Co., 1963, 245 La. 411, 158 So.2d 594. Emmons held that an appeal by one of two defendants sued as joint tortfeasors brought up for review the judgment dismissing the other (in which plaintiff had acquiesced, though appealing on quantum), despite the cast defendant’s not having third-partied the other. The court reasoned that the cast defendant could be entitled to contribution from the other defendant and thus could have intervened in a suit against the other defendant alone: and the cast defendant therefore had the right to appeal, C.C.P. 2086, as a party aggrieved by the dismissal of the other defendant. Our situation is analogous: because Niven is Palmer’s surety, to whom Palmer owes indemnification and reimbursement, Palmer could have intervened in a suit against Ni-ven alone and could have appealed a judgment against Niven, as a party aggrieved by the casting of Niven. (See also Vidrine v. Simoneaux, La.App. 3 Cir. 1962, 145 So.2d 400, cert. denied, factually similar to Emmons except that Vidrine’s plaintiff did not appeal at all [and cast defendant Aetna had third-partied the non-cast defendant]. Yet on the appeal of defendants Aetna and Simoneaux, cast in solido, the Court of Appeal, after reversing as to Aetna [making the third-party demand moot], rendered judgment on the main demand in favor of the non-appealing plaintiff against the defendant [Stelly] who had not been cast by the trial court. Vidrine, like Emmons, relied on C.C.P. 2086.)

One is aware that — if Palmer did originally agree to employ and pay Snelling (Palmer testifies he did not) — the correct final result should be judgment for Snelling against Palmer (for only $1,392, see n. 2, less $900 paid). There seems to be a certain inconsistency in ruling in Niven’s favor, although he did not appeal, while refusing to rule in Snelling’s favor, because Snelling did not appeal. But, because Palmer was not aggrieved by the judgment dismissing Snelling’s claim against Palmer, one cannot say that it too is brought before us by Palmer’s appeal.

One may nevertheless note that Snell-ing’s claim against Palmer should be rejected. Snelling’s written contract form for a prospective employee ties him hand and foot, making him promise to pay the fee both as principal obligor and as surety of the prospective employer; and Snelling obliges the prospective employee to sign its form even though he accepts only fee-paid interviews, and the contract therefore does not reflect the real agreement of the parties.

Yet the same Snelling claims that it had only an oral agreement with a prospective employer — -not even a letter from the employer acknowledging an agreement to pay the fee. Improbable.

Moreover, it appears that Snelling’s ploy of persuading the employee to sign (“although it’s fee-paid”) enables it to ignore (as it first did here) its alleged oral agreement with the employer and to proceed against the employee alone, in derision of its initial agreement with him that he would be sent for interviews only to employers who had agreed to pay the fee. Under Snelling’s modus operandi, no agreement with Palmer was ever necessary; all that was necessary was to tell Niven that there was an agreement with Palmer. And that is all that Snelling proved: not that there was an agreement with Palmer, but only that Snelling told Niven that there was one.

The judgment appealed from should be reversed insofar as it cast Niven on the main demand and Palmer on the third-party demand.

SCHOTT, Judge,

dissenting.

The only appeal before us is Palmer’s. The judgment in plaintiff’s favor against Niven is res judicata. For this reason I do not agree with Judge Redmann that the judgment on the main demand should be reversed, but I do agree that the third-party demand against Palmer should be reversed for the reason expressed by Judge Redmann on this issue.

      . The contract provided “I assign my compensation up to the amount of my fee to you, and request and authorize my employer to honor this assignment according to the terms of this contract, and to withhold this sum from my pay and remit directly to you.”

      . If the contract were not wholly void, we should at least reduce the judgment to the proper fee. The contract provides a fee schedule in percentages graduated (as federal income tax is) according to income, from 2% on the first $1,799.99 of annual salary to 14% on all above $14,000. Snelling interprets it to charge the highest percentage on the entire salary. For example, Snelling calculates the fee on a salary of $13,999.99 at 12% of the whole $13,-999.99, or $1,680: and on a salary of one penny more, $14,000, at 14% of the whole $14,000, or $1,960. Snelling’s interpretation thus leads to the absurd consequence that a one-cent increase in salary brings a $280 increase in fee. This absurd result is untenable even if the contract words were clear; C.C. 1945(3). At best the words are ambiguous and would therefore be construed against Snelling, who drafted the contract; C.C. 1958; Alexandria Empl. Serv. v. Box, La.App. 3 Cir. 1973, 282 So.2d 776. Thus the obligatory interpretation of the contractual fee schedule is that the first $1,799.99 of salary brings a 2% fee, and each additional bracket of salary brings an increasingly higher percentage applicable only to the portion of salary within that bracket, up to $13,999.99, and any part of salary higher than $13,999.99 brings the maximum fee of 14% on that part of the salary. This calculation establishes that the correct fee is not $2,520, or 14% of the whole $18,000 salary, but $1,392.

      .Only Niven and Mrs. Ward of Snelling have knowledge of the dealings between Niven and Snelling. They both testified that their agreement was that Niven would only be referred to employers who would pay Snelling’s fee; that Niven was not interested in any job on which he would have to pay a fee. This agreement is also reflected by the note written by Mrs. Hunt when she mailed the written contract to Niven: “Please fill out front and sign back — although it’s fee paid — you still must sign.” A later letter to Niven from Snelling also recited Palmer’s primary liability but demanded that Niven pay the fee or quit the job within five days in accordance with this contract (a matter raising public policy questions here pretermitted). Accordingly parol evidence of Palmer’s promise to pay the fee is not excludable under C.C. 2278(3) because that promise was not to pay the debt of Niven. To the contrary, it was Niven who by his written contract promised to pay Palmer’s debt if Palmer did not pay it. Thus Niven became Palmer’s surety, C.C. 3035 (but with the contractual option to escape liability by quitting the employment within five days of demand by Snelling). There is no other basis in the record upon which Niven could be held liable to Snelling. The contract sued on has two contradictory bases for liability — a primary and principal promise to pay and a secondary promise — but the testimony establishes that it is only the secondary promise which is applicable.

      . A surety may, even before making any payment, bring suit against the debtor to be indemnified by him:
      1. When there exists a lawsuit against him for payment. .

      . The surety who has paid the debt, has his remedy against the principal debtor, whether the security has been given with or without the knowledge of the debtor.
      This remedy takes place both for the principal and interest, and for the costs which the surety may have been sentenced to pay; but with regard to the costs, the remedy of the surety begins only from the day he has given notice to„ the principal debtor, that a suit was commenced against him.

      . The possibility of fraud is evident (though not here at issue): an agency falsely tells a prospective employee that its fee is to be paid by the employer, but insists (as here occurred) that the employee must nevertheless sign a contract agreeing to pay the fee.
      Is a placement fee owed to an employment agency which sends to an employer who has not agreed to pay its fee a prospective employee to whom it has promised to recommend only prospective employers who have agreed to pay its fee?

      . The only apparent solution to the jigsaw dismemberment of a case on appeal is a rule that appeals bring the entire case before the appellate court, just as the entire case is before the trial court. The legislative rule to the contrary should be repealed (or invalidated as a violation of the separation of powers, La.Const. art. 2, § 2).


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Brian EASTWOLD, President of/and the Public Employees Association of New Orleans, Inc., et al. v. CITY OF NEW ORLEANS et al.
    No. 8622.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Frank J. Uddo, New Orleans, for Brian Eastwold, et al.
    Ralph D. Dwyer, Jr. (Many, Lococo & Dwyer), New Orleans, for City Civil Service Commission.
    Philip S. Brooks, Frank J. Varela, New Orleans, for the City of New Orleans, et al.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   REDMANN, Judge.

City civil service employees appeal from the dismissal, on exception of no cause of action, of their suit to enjoin a new overtime policy that amounts to a cut in overtime pay in some circumstances. We agree that overtime pay may sometimes be cut but we affirm the judgment appealed from.

The cut in pay could occur because leave time (except for “civil” leave and up to 21 days of annual leave per calendar year) will no longer be counted as “hours worked toward computation of overtime at the end of the regular work week”. (City Civil Service Comm. Rule IV § 10.4). Previously, a worker who took leave for a day or two in a week and who was then called to work Saturday was paid time and a half for the Saturday work, just as was a co-employee who had worked the whole week. Now, except in the case of the first 21 days of annual leave so counted, such a worker will not be paid time and a half for the Saturday work, although the co-employee who worked the full week will.

The only complaint that plaintiffs make that is cognizable by a court is one of non-uniform civil service pay in violation of La.Const. art. 10 § 18 and (because by governmental regulation) unequal protection of the law, La.Const. art. 1 § 3 and U.S.Const. Amend. 14. We first hold that no unequal pay and no unequal protection exists because all similarly situated employees are treated identically. The only inequality is between unequals, namely (1) the employee who has and the employee who has not yet actually worked a full week and (2) the employee who has and the employee who has not already been paid unearned overtime for up to 21 days of annual leave. The presumable purpose of premium pay for overtime is to recognize and reward the worker who has already worked his normal quota but who is called on to “go the extra mile”. The classification and exclusion of workers who have not yet worked the normal quota is directly related to the purpose of the overtime provision and it is unexceptionable. See Succession of Robins, La. 1977, 349 So.2d 276, 280, for an application of Louisiana’s equal protection clause. Nor is equal pay or equal protection denied by limiting to 21 days the annual leave that is countable as work for purposes of computing overtime and is, in effect, therefore paid at time and a half rather than regular pay. The limit is the same for every employee, and there is no suggestion by plaintiff that it is not available to any similarly situated employee.

Plaintiffs also complain that, while their own overtime was cut to the extent recited, another new policy gave raises to executive, administrative and professional employees of the city who are not eligible for overtime pay but who at times work overtime. On this argument we find ourselves unable to act.

Plaintiffs cite no law prohibiting the adoption of the two new policies, enacted by the proper authority, with City Civil Service Commission and City Administration obtaining the concurrence of the City Council.

There is no point in our repeating plaintiffs’ persuasive arguments in favor of continuing the old overtime pay plans or defendants’ persuasive arguments against it. We are not the lawfully constituted authorities for the adoption of pay plans. Mouras v. Jefferson Par. Sch. Bd., La.App. 4 Cir. 1974, 300 So.2d 540, 542, writ refused, responding to school principals’ complaint that their salaries were reduced without a corresponding reduction in teachers’ salaries, observed that we are not legislators or school board members (and here we add, or city councilmen):

Our function is not to apportion funds, but to decide each case under the law, and to order whatever remedy the law provides.

No law prohibits any of the actions complained of, and therefore the trial judge’.s refusal of injunction was correct.

Affirmed.

      . Plaintiffs do not attack as a denial of equal protection the governmental regulation’s allowing paid annual leave up to 21 days, but not paid sick leave or unpaid leave [at least up to a total of 21 days including all leave], to be counted as time worked for purposes of computing overtime, and on that basis paying different wages to identically classified employees for identical work. Nor do plaintiffs complain of counting “civil” leave as time worked without limit.


author: GARSAUD, Judge.

text:
    Robley J. GELPI, Jr. and Alexander A. Thieneman, Jr. v. Florian M. SHALL.
    No. 8661.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Casey, Babin & Casey, Joseph S. Casey, New Orleans, for plaintiff-appellant.
    Ponder & Richardson, Lamar M. Richardson, Jr., Mandeville, for defendant-appellee.
    Before LEMMON, STOULIG and GAR-SAUD, JJ.
   GARSAUD, Judge.

Plaintiffs-appellants are the owners of plots 229 and 230 of Cleary Subdivision in Jefferson Parish, which lots are contiguous to plot 245 and a portion of plot 246, belonging to defendant. Plaintiffs filed this suit in boundary under Civil Code Article 823 on January 21, 1976 to establish the western boundary line of their property and the eastern boundary line of defendant’s property. To this petition defendant filed exceptions of ten, twenty, and thirty years’ prescription. After the trial of these exceptions, the trial judge found the prescription of ten and twenty years (C.C. Art. 853) to be inapplicable under Fiorello v. Knecht, 334 So.2d 761 (La.App. 4th Cir. 1976), and these are not urged in this appeal. The trial judge, however, sustained the exception of thirty year prescription provided for in Civil Code Article 852 and plaintiffs appeal from that judgment.

Defendant, Florian Shall, purchased plot 245 and a portion of plot 246 from Mr. and Mrs. Joseph Estain, by deed dated March 20, 1951. The Estains had acquired the property on September 2, 1931, and had operated a dairy, using a barn located within the disputed area from the 1930’s until the sale to the defendant. (Tr. of November 5,1976, pp. 34-35) Defendant’s property has been fenced at least since his acquisition in 1951 along the boundaries indicated by old pipes set in concrete on the survey of F. G. Stewart dated December 1, 1950 (identified as exhibit P-3), which was attached to the Act of Sale in which defendant acquired this property. As the trial judge correctly described in his Reasons for Judgment,

“It was the contention of the defendant that his property has been separated from that of the plaintiffs’ by a fence which had been in continuous existence for a period of over thirty years and ran along a line marked by an old pipe set in concrete at the southeastern corner of defendant’s property, an old gate standing at approximately the mid-point of defendant’s alleged eastern boundary, and a pipe set at the northeastern corner of defendant’s property.”

This description coincides with the boundaries indicated on the Stewart survey, exhibit P-3.

Plaintiffs are real estate developers who acquired plots 229 and 230 in 1975. They testified that they were aware that the fences and barn of defendant encroached on their property when they purchased the land. (Tr. of November 5, 1976, pp. 47-48 and 50-57) The plaintiffs argue that there was no actual uninterrupted possession within visible bounds for the required period and that the real boundary is reflected by the surveys of John Krebs, dated June 18, 1975, and Gerald B. Dunn, dated October 21,1976. The disputed area varies from 24 to 29.3 feet in width, running’ the length of the common boundary shared by these parties.

The issue is simply one of fact, especially with reference to whether the visible boundaries existed from January 1946, when the Estains, defendant’s predecessor in title, possessed the land.

A person pleading prescription of thirty years bears the burden of proving unequivocal, continuous, uninterrupted, public and adverse possession by a preponderance of the evidence. Bradford v. Thomas, 344 So.2d 717 (La.App. 2d Cir. 1977); Humble v. Dewey, 215 So.2d 378 (La.App. 3rd Cir. 1968). The requirements for establishment of the prescription of thirty years are clearly stated in Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957), and most recently reiterated by our Supreme Court in William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (1977):

“[Wjhere there is a visible boundary which has been in existence for thirty years or more and the defendant in a boundary action and his predecessors in title have, in addition to the land described in the title, actually possessed land extending to that visible boundary, a plea of prescription of thirty years should be sustained. It is our view that for the rule to be applicable two conditions must concur: First, there must be a visible boundary, artificial or otherwise; second, there must be actual uninterrupted possession, either in person or through ancestors in title, for thirty years or more of the land extending beyond that described in the title and embraced within the visible bounds.” 96 So.2d at 843.

The testimony to establish the two essential factors called for in a case of this kind was something less than precise, which is to be expected, given the number of years that have elapsed. Nonetheless, the trial judge found that the evidence preponderated in favor of defendant, who, although he had the burden of proof on the trial of this exception, sustained his burden to the satisfaction of the trial judge. Where a boundary is located is a question of fact to be determined by the trier of fact, and should not be reversed on appeal in the absence of manifest error. Fiorello v. Knecht, 334 So.2d 761 (La.App. 4th Cir. 1976); Union Producing Company v. Placid Oil Company, 178 So.2d 392 (La.App. 1st Cir. 1965), writ refused 248 La. 447, 179 So.2d 432 (1965); Latiolais v. Robert, 8 So.2d 347 (La.App. 1st Cir. 1942).

Not only is there clearly no manifest error on the part of the trial judge, but there is also an extensive and very well-reasoned exposition by the trial judge of the rationale for his judgment, a substantial part of which we quote and adopt:

“After a thorough review of the record, this Court finds that the testimony and evidence adduced at the trial preponderately establishes that the fence line in question on the eastern boundary as delineated by the Stewart survey (P-3) was constructed more than thirty years before the institution of this suit by defendant’s author in title, separating the present properties of plaintiffs and defendant; that it was maintained as a visible existing boundary between'said estates; and that the land so enclosed was actually possessed by the defendant and his author in title for more than thirty years. This Court has found inconsistencies in the testimony of the witnesses produced by the defendant and the plaintiffs. However, this Court attributes these inconsistencies to the inability of a person to recall with exactitude, facts as they existed thirty to forty years ago.

“The record overwhelmingly establishes that since the defendant, Mr. Florian Shall, took title to his property in 1951, it has been fenced along a line on the eastern boundary as delineated by the Stewart survey made a few months prior to Mr. Shall’s purchase of the property and said fence was still standing when this suit was instituted in January of 1976. At the trial several witnesses testified that they recalled that the fence was standing some six to eight months prior to trial of this exception, which would be in March of 1976. The record also establishes that Mr. Shall used the area between the fence and the barn for a drainage ditch which extended from alongside his barn down to his southern most boundary line. The difficult question to be answered by this Court was whether or not said fence and ditch were present before Mr. Shall bought the property, and more particularly whether it has existed since January of 1946 or before. On this point the testimony was not clearcut, but, as previously mentioned, it preponderates in favor of the existence of the fence.

“Of all the witnesses who testified at the hearing of these exceptions, only four exhibited first hand knowledge of the property during the period in question, 1940-1950. These witnesses were Walter Smith, Earl Patrick, Jr., and Margaret Ingulia, and Frank Romano. The defendant, Mr. Shall, testified that the fence and gate were in existence for 30 — 40 years, but there was no showing that he had personal firsthand knowledge to this effect.

“Mr. Walter Smith testified that he had worked and lived at a pumping station on the lakefront near the subject property for the past forty-seven years, and that he passed by the property many times on the Old Hammond Highway, as that was the only way in or out for many years. He testified that the barn and the house were built in approximately 1934 and that the barn has never been moved. He testified that a family by the name of Estain lived there when the buildings were first erected and that later Mr. Shall bought the property from them. Mr. Smith testified that there were fences all over the area, but when asked if the Estain’s and then later on Mr. Shall’s property was fenced, he answered that it was. See trial record, October 22, 1976, p. 34, 1. 21.

“The next witness to testify with firsthand knowledge of the property during the crucial years was Mr. Earl Patrick, Jr. Mr. Patrick was familiar with the property since 1945 or 1946 as he dated one of Es-tain’s stepdaughters and was a friend of an Estain boy. T.R., Nov. 5, 1976, p. 20, 1. 22 et seq. On direct examination at T.R., p. 21, 1. 8 he testified as follows:

‘Q. To your knowledge, was this property fenced ever since your knowledge of it?
A. Yes, it was fenced along the side of the barn and the night pasture.’
“Mr. Patrick drew in the fence line as he remembered it on exhibit P-7 and this Court notes that it is approximately the same as the eastern boundary delineated on the Stewart survey, P-3. Mr. Patrick further testified as follows at T.R., p. 25, 1. 4:
‘Q. Since 1945, up until the fence was bulldozed down, were these fences always in place?
A. Yes, sir.’
“And at T.R., p. 25, 1. 16:
‘Q. And these fences were continuously in place?
A. Positively.’
“Upon questioning from the Court, Mr. Patrick further testified at T.R., p. 27, 1. 1:
‘The Court:
Let me ask you this: Was there anything there that led you to believe that there was a property line between the properties?
The Witness:
You mean between his property and the DiBella property?
The Court:
Yes.
The Witness:
Only the fence that ran down the side of the barn.’

“The next witness, called by the defendant, who exhibited firsthand knowledge of the property during the crucial years was Ms. Margaret Ingulia, whose father owned the property before Mr. Shall, and who lived on and visited the property between 1933 and 1950. She testified that the barn was still standing in its original location; that the eastern boundary of the property was always along the easterly side of the barn (T.R., p. 36, 1. 26); that there was a ditch to the easterly side of the bam running to the south, T.R., p. 37, 1. 22 et seq.; that the corners of the property were marked by pipes set in cement, T.R., p. 40, 1. 8, and that her father fenced in what was called his property, that said fences were located in only one place and that the fence line was located presently as she always remembered it, T.R., p. 41, 1. 11, et seq.

“Upon cross examination, Ms. Ingulia testified as follows at T.R., p. 44,1. 13:
‘Q. Now, you referred to surveyor stakes set in concrete, and do you know who set these stakes in concrete?
A. No, I don’t know.
Q. Could they have been covered with earth and would the earth have had to be removed to find them?
A. I don’t know, but they had to be visible when they put the fences up.
Q. But normally if you walked out in the yard, would you stumble over them?
A. No.
Q. So, you could see them?
A. Well, the fences were parallel to them, and you would be hitting the barbed wire fence if you walked on them.’

“The next witness with knowledge of the property prior to 1950, and the only witness of this sort called by the plaintiffs was Mr. Frank Romano, the son-in-law of Nick Di-Bella, who was plaintiffs’ author in title. Mr. Romano worked on the DiBella property seven days a week from 1945 to 1947. He aided Mr. DiBella in his hog raising activities. Mr. Romano testified that there was no fence along the eastern boundary of the Estain property. T.R., p. 55, 1. 15, et seq. Mr. Romano also testified that he never had occasion to go over to what was then the Estain barn, that he didn’t notice any ditch along side the Estain barn, but that ditches were common in the area and that it was also common to fence the ditches to keep livestock out, and at T.R., p. 62, 1. 2 he testified as follows:

‘Q. Did you consider these ditches and these fences to be boundaries of the property?
A. No, not necessarily.
Q. What did you consider to be the boundaries?
A. Well, I guess the fences, but not the ditches. The ditches don’t necessarily have to be the boundaries of the property-
Q. But, you did consider the fences in connection with that?
A. Well, I am sure that it would have been the property line.’

“Mr. Romano’s testimony that the Estain’s property was not fenced is in direct conflict with the testimony of Mr. Walter Smith and Ms. Margaret Ingulia who had knowledge of the Estain property over a long period of time. Mr. Romano’s knowledge of the Estain property was limited to two-three years. Due to Mr. Romano’s limited knowledge of the Estain property, this Court has given his testimony less weight than that of Mr. Smith and Ms. Ingulia.

“The plaintiffs vigorously argue that the Stewart survey, P-3, by which the defendant, Mr. Shall, acquired the property shows no evidence of any fence erected along what it delineates as Mr. Shall’s eastern boundary. The only witness to testify in this regard was an expert surveyor, Mr. John Krebs. Mr. Krebs testified that although boundary fences are usually indicated on a survey, it is within the judgment of each individual surveyor whether or not to indicate fence lines. Throughout the trial of these exceptions it was established that fences were a common place thing in the area and that they ran in all directions. The Stewart survey does not indicate any fence lines whatsoever. This Court believes that it is very possible and likely that Mr. Stewart purposefully deleted any reference to fence lines on his survey, especially in view of the strong testimony by Ms. Ingu-lia, Mr. Smith, and Mr. Patrick that the property was fenced.

“For the foregoing reasons, this Court holds that the defendant has carried his burden of proof in establishing that there had been a visible boundary between the properties of the defendant and the plaintiffs, and that he and his ancestors in title have been in possession of said property up to the visible boundary for a period in excess of thirty years.”

For these reasons, the judgment of the trial court granting the exception of thirty years’ prescription is sustained.

As the trial court was able in its judgment to delineate with particularity the boundary of the defendant’s property, there is no need to order a survey to fix judicially the boundary. William T. Burton Industries, Inc. v. Wellman, supra. As indicated in the trial court’s judgment, the boundary is declared to be as delineated on the survey of F. G. Stewart, made and certified correct on December 1, 1950 and attached to the Act of Sale between Mrs. Lillian Gerhardt, wife of/and Joseph Estain and Florian M. Shall, passed on March 20, 1951.

AFFIRMED.


author: GARSAUD, Judge. PER CURIAM.

text:
    LOU-ARK EQUIPMENT RENTALS CO., INC. v. HONG AH FONG, Hong Au Fong, Hong Kar Fong, Hong May Fong, Yew Bong Fong, a/k/a Larry Fong, Individually and as Curator for the minor, Jeong Fong, a/k/a Jone Fong, the National Bank of Commerce in Jefferson Parish, A. L. Warriner and J. K. Builders, Inc. Alfred L. WARRINER, Jr. v. HONG AH FONG, Hong Au Fong, Hong Kar Fong, Hong May Fong, Yew Bong Fong, a/k/a Larry Fong, Individually and as Curator for the minor, Joeng Fong, a/k/a Jone Fong and J. K. Builders, Inc.
    Nos. 8690 and 8691.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    As Amended and Recast on Denial of Rehearing March 14, 1978.
    Writ Refused May 5, 1978.

      Greenberg & Dallam, Nathan Greenberg, Roger I. Dallam, Gretna, for plaintiff-appellant.
    Roy L. Price, Metairie, for defendants-ap-pellees.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   GARSAUD, Judge.

These consolidated cases arose out of an agreement for pile driving in conjunction with the construction of the Canton Restaurant in Metairie, Louisiana.

In the Lou-Ark Equipment Rentals Co. case (hereinafter Lou-Ark), Lou-Ark filed suit against an array of defendants to recover the cost of rental of a crane used to drive pilings on the construction site. The defendants sued were A. L. Warriner, the individual who arranged for and used the crane, J. K. Builders, Inc., the general contractor on the job, The National Bank of Commerce in Jefferson Parish, the interim financier, and the Fongs, owners of the property. Lou-Ark obtained a default judgment against defendant Warriner, but on a trial on the merits had its claim dismissed as to the other defendants. This decision was appealed in ease No. 8690.

Case No. 8691 was brought by A. L. War-riner as plaintiff against J. K. Builders, Inc. and the Fongs. This action was to recover an amount due for the value of plaintiff’s services as supervisor of the pile driving, as well as the balance due for the value of services of plaintiffs crew. In addition, plaintiff sued for the balance due on the Lou-Ark crane rental for which judgment has been rendered against him. The trial court found an agreement between Warri-ner and J. K. Builders for pile driving in the amount of $21,500.00. The trial court also found that Warriner failed to carry his burden of proof relative to additional compensation and amounts due and owing. Case No. 8691 is an appeal from that judgment.

This rather complicated case can be reduced to four main issues:

(1) Whether A. L. Warriner transacted expressly or impliedly for J. K. Builders the agreement for rental of the crane from Lou-Ark;

(2) Whether an agreement existed between A. L. Warriner and J. K. Builders for pile driving;

(3) If an agreement did exist, what were its terms;

(4) If an agreement did exist, was A. L. Warriner fully compensated thereunder?

With regard to the first issue, it is clear from the evidence that Warriner was not expressly appointed a mandatary by J. K. Builders for any purpose, including the rental of the crane from Lou-Ark. No mandate ensued under Article 2985 of the Civil Code. Neither, however, did any other form of mandate arise. It is well recognized that in spite of the fact the Louisiana Civil Code does not provide for nonrepre-sentative agency, Pascal, A Report on the French Civil Code Revision Project, 25 Tul. L.Rev. 205, 213 and Comment, Agency Power in Louisiana, 40 Tul.L.Rev. 110, Louisiana courts have been compelled to develop an apparent authority concept for protection of innocent third parties. Such protection, though, does not, under these circumstances, extend to the plaintiff, Lou-Ark. When this principle is invoked it must be shown “. . . (1) that the principal make manifestations to a third party in some form, and (2) that the third party reasonably rely on the agent’s purported authority as a result of the manifestations of the principal.” Krautkramer Ultrasonics, Inc. v. Port Allen Marine Service, Inc., 248 So.2d 336 (La.App. 4th Cir. 1971). When the Civil Code precludes any but a representative agency, it is logical that a rule for the protection of third parties require some indication to the third party by the principal of a recognition of the manda-tary. Here there was no such manifestation or indication from J. K. Builders to Lou-Ark which might have pointed to War-riner’s authority to act in the former’s behalf. In fact, there was absolutely no communication between J. K. Builders and Lou-Ark. Mr. Autin, president of Lou-Ark, admitted in his testimony that he never contacted anyone at J. K. Builders in connection with this equipment lease. Autin apparently assumed that Warriner had authority to bind J. K. Builders, and, as a result, he never made any inquiries into that relationship. The only information that Lou-Ark sought was concerning J. K. Builders’ financial status. Autin testified that he knew Warriner and would not rent the crane to him because he knew of Warri-ner’s financial instability. Thus, he called Mr. Clarence Wegmann, vice president of National Bank of Commerce in Jefferson, only to verify that NBC was handling the interim financing for J. K. Builders on the Canton Restaurant job. On the strength of that verification he agreed to rent the crane.

Although Warriner represented himself as an agent with authority to enter this contract on behalf of J. K. Builders, it is a well-established rule that the declarations and representations of an alleged or reputed agent are not admissible evidence to prove the fact of his agency against the principal. Patrick v. Patrick, 230 So.2d 759 (La.App. 2d Cir. 1970); DeRouen v. Aiavolasiti, 121 So.2d 851 (Orl.App.1960). Further,

“it is also well settled that whoever deals with an agent is put on his guard and it is his duty to inquire into and ascertain the nature and extent of power of the agent. He is required to determine whether or not the contract about to be consummated comes within the agency and will or will not bind the principal.”
(Numerous citations omitted.)
Builders Center, Inc. v. Smith, 228 So.2d 245, 249 (La.App. 1st Cir. 1969).

We must conclude then that Warriner was acting individually, on his own behalf as a subcontractor and Lou-Ark’s claim is limited to that defendant. The judgment in No. 8690 is affirmed.

In regard to the second case in consolidation, the trial court’s findings on the contract and terms thereof are somewhat unclear. After discussing in his oral reasons an “upset” price of $21,500, the trial judge concluded, nevertheless, that the parties agreed on a set price of $21,500. He awarded no amount, however, to Warriner, even though J. K. Builders expended only $20,-128.15 on the job. For the reasons stated below, we find this result manifestly erroneous and modify the judgment.

There is really little doubt that some agreement was struck between the parties, and neither disputes its existence. The requisite obligations were created. C.C. Arts. 1761, 1779. The terms of the agreement are not as easily established.

Plaintiff Warriner testified that he considered his arrangement with Jerry Kelly in the nature of a “joint-venture” wherein any savings under $21,500 would be divided equally. On numerous occasions, Warriner asserted that he was to beat the price of $21,500. (T. Vol. II, pp. 86, 95, 96, 119) Warriner would supply his own equipment and Kelly would advance funds for labor, material, and rental of other needed equipment. Kelly was to provide the pilings. (T. Vol. II, pp. 86, 95) Warriner would contribute the value of his own services, expecting to be compensated by splitting the profits. It should be noted here that no such joint-venture is alleged in any of War-riner’s pleadings.

Kelly testified that the amount involved under the arrangement was in excess of $21,000 or $21,500, finally settling on $21,-500, and that Warriner was to beat the price. (T. Vol. II, p. 140; T. Vol. Ill, p. 93) He confirmed that he was to purchase the piling, but denied he was responsible for any other costs related to the driving of piles.

Considering this evidence, it is our view that a contract existed for an upset price of $21,500, and an agreement to split profits, if any. Through their respective testimony, the parties have established a like-mindedness on these terms and have consented thereto. C.C. Art. 1798; see also Litvinoff, 6 Louisiana Law Treatise, Obligations § 129. Their relationship was one of general contractor to subcontractor, with all attendant obligations. (See judgment in No. 8690, supra.)

One area of conflicting testimony on the terms of the agreement, however, relates to the driving of certain thirty-foot pilings. Both parties agreed that Warriner was to drive the 102 sixty-foot pilings called for. Warriner contends that was the extent of the agreement. Kelly maintains that 67 thirty-foot pilings were included. The trial court found there was a preponderance of evidence supporting Kelly’s view, and included the thirty-foot pilings. We conclude that there was no manifest error in this regard and accept that finding. Canter v. Koehring Company, 283 So.2d 716 (La. 1973); Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976).

Having reached that conclusion, it is now necessary to determine what amounts, if any, are due and owing to Warriner from J. K. Builders.

The total cost of the pile driving project, irrespective of sources of payment, was:

Delta Creosoting Co. $11,126.60
L. B. Poster & Co. 2,915.36
Lou-Ark 4,673.50
Labor 1,850.00
563.00
Jefferson Rentals 230.58
Point Landing Fuel Corp. 22.11
Johnny Tursich
(driving 30' pilings) 1,983.50
TOTAL $23,364.65

Thus, since the total cost of the job exceeded the upset price of $21,500, there was no profit made on the job to be divided between the parties. However, this does not end the inquiry. When calculating the source of payments we find:

J. K. KELLY WARRINER (non-reimbursed items;

Delta Creosoting $11,126.60 Rental of

L. B. Foster & Co. 2,915.36 crane $2,673.50

Labor advances 1,850.00 Labor 563.00

Jefferson Rentals 230.58 TOTAL $3,236.50

Point Landing Fuel Corp. 22.11

Johnny Tursich (30' pilings) 1,983.50

Lou-Ark (crane rental paid on garnishment 2.000,00

TOTAL $20,128.15

It should be noted that Kelly’s actual expenses and Warriner’s non-reimbursed items amount to $23,364.65, the total cost of the job outlined above.

Under the agreement, Kelly clearly bound himself for all costs of the job to the upper limit of $21,500, regardless of whether or not Kelly specifically approved of each cost outlay. Clearly, Kelly anticipated paying for the normal and usual costs of pile driving as they were incurred by Warriner. The total cost of the job was greater than $21,500, therefore Kelly must cover the expenses only up to $21,500, the upset price. Since Kelly has expended $20,128.15 to date, he owes the difference, or $1,371.85 ($21,500.00 —$20,128.15 = $1,371.85).

This result is consistent with an analysis of the absorption of the upset price overrun by Warriner, and the relative division of out-of-pocket payments. Warriner expended or is liable for $3,236.50 for which he is entitled to reimbursement only up to that figure less the amount of the project over the upset price, computed as follows:

Cost $23,364.65
Upset price 21,500.00
Cost overrun $ 1,864.65
Warriner’s unreimbursed items 3,236.50
Cost overrun absorption by Warriner 1,864.65
Due Warriner $1,371.85

The judgment appealed from, therefore, is modified to reflect the amount of $1,371.85 owed to Warriner from J. K. Builders, Inc., consisting of the difference between the “upset” price of $21,500.00 and the out-of-pocket expenses previously paid by Kelly.

AFFIRMED IN PART, REVERSED AND AMENDED IN PART.

ON APPLICATION FOR REHEARING AND/OR TO AMEND DECREE

PER CURIAM.

In his application for rehearing and/or to amend decree, Alfred L. Warri-ner, Jr. calls our attention to the fact that the decree awards judgment to Alfred L. Warriner, Jr. in the sum of $1,371.85 without making any provision therein for legal interest from the date of judicial demand until paid and for all costs of court. After consideration of this point, it is manifest that our decree must be amended to include legal interest from date of judicial demand until paid and for all costs of court.

Accordingly, the final paragraph of our opinion in this matter dated February 14, 1978 is amended and recast as follows:

“The judgment appealed from, therefore, is modified to reflect the amount of $1,371.85 owed to Warriner by J. K. Builders, Inc. plus legal interest from date of judicial demand until paid and for all costs of court. This amount consists of the difference between the ‘upset’ price of $21,500 and the out-of-pocket expenses previously paid by Kelly.”

In all other respects, the various applications for rehearing are denied.

JUDGMENT OF THIS COURT AMENDED AND RECAST; REHEARING DENIED.

      . It was Kelly’s testimony (T. Vol. II, p. 142) that he issued two checks to Delta Creosoting for the sixty-foot pilings, one check for $9,126.60, and the second for $2,000, whereas the invoices from Delta Creosoting (Exhibits Lou-Ark 10A through 10E) actually total $11,-352.60. This results in a discrepancy of $226.00, which cannot be explained. Kelly’s checks to Delta Creosoting are not in evidence, but since there is no dispute raised as to this amount, we will accept Kelly’s testimony and assume that Delta Creosoting was underpaid to the extent of $226.00.


author: BOUTALL, Judge. GARSAUD, Judge,

text:
    McDONALD’S CORPORATION v. Joan W. GLENNON, Collector of Revenue for the City of New Orleans.
    No. 8730.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.
    Writ Refused May 5, 1978.

      Max Nathan, Jr., New Orleans, Trial Atty., Robert C. Lowe, Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for McDonald’s Corp., plaintiff-appellant.
    Philip S. Brooks, City Atty., Joseph N. Naccari, Asst. City Atty., for Joan W. Glen-non, Collector of Revenue for the City of New Orleans, defendant-appellee.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

McDonald’s Corporation filed a petition for declaratory judgment to determine whether it comes within the provisions of the Louisiana Chain Store Tax, LSA-R.S. 47:10, Act 706 of 1974. Plaintiff appeals from a judgment declaring that the tax does apply to it.

The issue raised on this appeal is solely upon a legal interpretation of the statute. Plaintiff contends that it is a “restaurant” and that the statute does not apply to restaurants. There are no stipulated facts, nor any evidence adduced as to show what the operation of this plaintiff consists of and whether it in fact meets the definition of a restaurant. Presumably, the City of New Orleans agrees that it is a restaurant, it having stipulated “that the sole issue before the Court is whether the plaintiff, McDonald’s Corporation, is a store within the intendment of the Chain Store Tax Law (Act 706 of 1974).” Besides noting this lack of factual basis, we must also point out the enactment of Act 487 of 1975, which states that it repealed R.S. 47:10 (See Editor’s note to comments under LSA-R.S. 47:10). As the matter is now presented to us, it appears that we are being asked an advisory opinion which may have been mooted by the passage of the 1975 Act. However since the parties seem to argue that their tax conduct will be governed by the results herein, and because the definition of the subject of taxation is substantially the same (although differing mainly in the substitution of the conjunctive for disjunctive in relation to general management, etc.) we will proceed to consider the matter submitted.

For purposes of the limited issue before us, we quote the pertinent parts of LSA-R.S. 47:10B, as enacted by Act 706 of 1974:

“B. Imposition of tax * * *, there is hereby levied an annual license tax * * * upon each person engaged in the business of operating, or maintaining, as part of a group or chain, any store or stores * * * where goods, wares, merchandise or commodities of every description whatsoever are sold or offered for sale at retail under the same general management * * * commonly recognized as a member of a chain or as a branch store.”

In construing statutory law, we are governed by the provisions of R.S. 1:3 requiring that words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. R.S. 1:4 states that when the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. We must be mindful that the prime purpose of statutory construction is to determine legislative intent. Gremillion v. Louisiana Public Service Commission, 186 La. 295, 172 So. 163 (1937).

Does the statute then intend to place a chain store tax on restaurants? The definition of restaurant is not provided for in the statute itself, and we refer to Webster’s New International Dictionary, 3rd Ed. 1971, which defines restaurant as “an establishment where refreshments or meals may be procured by the public: a public eating house.” It follows then that a restaurant is simply a fixed place of business where food is sold to its customers, and the food may or may not be prepared and consumed on the premises. The definition of restaurant meets the statutory test quoted above.

The food offered for sale is certainly within the definition of goods, wares, etc. We quote again from Webster’s, supra, the following definitions:

“goods
“goods pi: tangible movable personal property having intrinsic value usu. excluding money and other choses in action but sometimes including all personal property and occas. including vessels and even industrial crops or emblements, buildings, or other things affixed to real estate but agreed to be severed: chattels, wares, merchandise, food products, chemical compounds, and agricultural products (household * * *)”
“ware:
“ * * * a: manufactured articles, products of art or craft, or farm produce offered for sale: articles of merchandise.”

The main thrust of appellant’s contention is that the establishment, or place of business, that is intended to be taxed is only a “store or stores” and that a restaurant is simply not a store either under the generally accepted use of the word or under certain judicial pronouncements. Referring again to Webster, supra, we note the following definition of store as a noun, and especially definition 9:

“9a: a business establishment where goods are kept for retail sale (grocery -) (furniture)”
******
“c: a commercial establishment (as a bank, restaurant, or dry-cleaning shop.)”

In comparing the definitions of store and restaurant, we note that both are business establishments where goods and wares are sold. As we see it, store is a much broader definition and applies to all such retail businesses generally, while restaurant is simply a narrower division and is a store where only prepared food and refreshments are sold. We would readily concede that the hypothetical reasonable man would probably not associate a restaurant such as Antoine’s as being a store, but it too has as its main purpose selling prepared food. On the other hand, with the advent of the progression from “hamburger stands” to what is now termed “fast food outlets”, wherein a customer simply picks up the food, sometimes previously ordered, to be taken and consumed elsewhere, we discern little differentiation between such an operation and a grocery or delicatessen.

Customarily we use words such as these to denote “stores” which have particular characteristics. For example, a grocery is a store whether we call it a grocery or a food store or a grocery store. Is a retail bakery any less of a store because we sometimes refer to it as a bakery shop? Does our statute propose to tax a drug store but not a pharmacy? It is not our function to deal precisely with the fine parts of the meanings of “restaurant” or other such generic terms, it is our function only to determine if the definition provided by the statute does include this business operation. See for comparison Sherrouse Realty Co. v. Marine, 46 So.2d 156, La.App.2d Cir. (1950). As an example we refer to § C of the statute relating to the basis and rates of the tax imposed and note that the tax is based “on the number of stores or merchandise establishments” suggesting further to us that “store” should not be given the restricted meaning as contended for by appellant.

Appellants have referred us to a number of our sister states in which the courts have decided that the chain store tax does not apply to restaurants. While these decisions have some persuasive effect, nevertheless they are not controlling, and indeed we perceive in some of them a variance in the statute itself or in the general statutory scheme. We note for example in the case of State Tax Commission v. Gay-Teague Realty Company, 237 Ala. 133, 185 So. 739 (1938) that the statute being considered did not contain the definition of a store and obviously is not as broad as the Louisiana statute. In the case of Lee v. Clover Leaf, Inc., 130 Fla. 435, 177 So. 722 (1937), the court decided that the Florida chain store tax did not apply to restaurants but considered that the more conclusive reason for the exemption was another tax statute which imposed a privilege tax on restaurants only, specifically graduating them according to the accommodations or customers served. In any event we are not called upon to interpret the provisions of any other statute than this which is passed by the Louisiana Legislature and determine its intent.

Of more importance is appellant’s reference to the holding of the Louisiana Board of Tax Appeals in the matter entitled Pizza Hut of Louisiana, Inc. v. Collector of Revenue, BTA Docket # 1524 (1974), in which the board decreed a proposed assessment of the Collector of Revenue of the State of Louisiana to be illegal and unauthorized under the facts, circumstances and laws applicable thereto. First, we are not aware of whether there is a difference of fact in these two cases, but we do note that the tax assessment was proposed for the calendar year 1973 and hence could not have been controlling under the act here, # 706 of 1974, which repealed the applicable law there, R.S. 47:1121 et seq. The decision was not pursued into the courts such as to form a binding precedent upon us. Coincidentally therewith, we note that the tax imposed in R.S. 47:1121 was under a quite similar definition to ours and that § 1123 provided that only certain specific businesses shall be exempt from the provisions thereof. There are no equivalent statutory exemptions in the present law. In any event, no reasons are given for the Board’s conclusion and we disagree with its application to our statute.

In summation, we are of the opinion that the definition furnished by the statute is sufficiently broad to include within it the operation of a restaurant as maintained by plaintiff McDonald’s and the tax is applicable to McDonald’s. The judgment appealed from is affirmed.

AFFIRMED.

GARSAUD, J., dissented with reasons.

GARSAUD, Judge,

dissenting.

I respectfully dissent. I do not believe the plain language of the statute includes so-called fast-food restaurants. As a tax statute, it must be narrowly construed against the taxing power. Higgins, Inc. v. Walker, 129 So.2d 840, La.App. (1961); 82 C.J.S. Statutes § 396b (1953). Whether “store” as consistently used in the chain store tax provisions since 1932 means fast-food restaurant when food is consumed on the premises is sufficiently doubtful enough to construe it against the taxing authority. This is especially so when in two recent enactments, Act 706 of 1974 and Act 487 of 1975, the legislature had an opportunity to delineate clearly the statute’s applicability to the fast-food restaurant and failed to do so.

Further, the 1975 amendment did change the language of the 1974 Act by requiring that the taxpayer “[be] commonly recognized as a member of a chain and as a branch store.” (Emphasis supplied.) The prior Act used the disjunctive “or.” Clearly, being part of a “chain” is not enough. The taxpayer also must be “a branch store.”

In my opinion, there is sufficient ambiguity surrounding the applicability of “store” to a fast-food restaurant that the legislature should have the burden of clarification to include another type of taxpayer. Enumerating taxpayers is a legislative function, not a judicial one.

      . The lack of facts as to the McDonald’s operation in the record causes us to conclude that we must accept the ordinary meaning of the word restaurant as embracing its operation. Presumably the scale of such operations would run from the traditional, grand New Orleans style of restaurant such as Antoine’s to the perhaps now outmoded denomination of hamburger stands, and McDonald’s is somewhere within the limits of these extremes.

      . For a discussion of the meanings of “store” and “shop”, see State v. Smith, 5 La.Ann. 340 (1850). We also note with approval the following cited in Words and Phrases, “Store”, Vol. 40 p. 343:
      “The word ‘store’ is commonly used in this country as the equivalent of the English word ‘shop,’ which is very generally applied to what we call a ‘bakery,’ as it is to any room or building where any kind of article of traffic is sold. The American word ‘store’ applies to the building; the name more strictly belonging to the collection of wares within it. The English ‘shop’ is the building itself, as distinguished from a place of sale, which is open like a ‘stall.’ Rich. Diet. ‘Shop.’ A ‘restaurant’ has no more defined meaning, and is used indiscriminately for all places where refreshments can be had, from the mere eating house or cook shop to the more common shops or stores, .where the chief business is vending articles of consumption and confectionery, and the furnishing of eatables to be consumed on the premises is subordinate. Where the premises insured are described as used for a residence and stores, the fact that a bakery and a restaurant were located in the building will not render the policy void. Richards v. Washington Fire & Marine Ins. Co., 27 N.W. 586, 587, 60 Mich. 420.”

      . In Louisiana no such special restaurant tax exists. There is only the general licensing law imposing the same basis of taxation on retail dealers and restaurants, R.S. 47:353.


author: BEER, Judge.

text:
    H. B. “BUSTER” HUGHES, INC., in its own right and as Assignee of Plaquemines Parish Commission Council v. Sherman A. BERNARD and Sherman A. Bernard House Moving and Shoring Corporation, and Thomas Jordan, Inc.
    No. 8748.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Keiler & Buckley, Sam 0. Buckley, New Orleans, for defendants-appellants.
    Sidney W. Provensal, Jr., New Orleans, for plaintiff-appellee.
    Before- REDMANN, BOUTALL and BEER, JJ.
   BEER, Judge.

This case was previously heard by us and remanded. See: H. B. “Buster” Hughes, Inc. v. Bernard, 306 So.2d 785 (La.App. 4th Cir. 1975), writ revoked with reasons, 318 So.2d 9 (Supreme Court of La., 1975).

The facts giving rise to this litigation are set forth in detail in our previous opinion. In summary, this litigation now involves only (1) the resolution of a claim by Hughes against Bernard, et al, for rental due for the sublease of the barge “ORLEANS,” and (2) the resolution of a claim against Bernard’s corporation (assigned to Hughes) for the cost of repair necessitated by erroneous excavation of a channel.

In fulfillment of a contract between Bernard’s corporation and Plaquemines Parish for removal of nine “camps” located too close to a hurricane levee right-of-way, Bernard’s acknowledged borrowed servant erroneously excavated a flotation channel from the campsites on Bay Adams, across approximately two-thirds to three-fourths of the marshland between the Bay and the relocation sites. The channel was unintentionally yet improperly cut across an area which was to form the base of a hurricane levee right-of-way. Excavation was eventually halted by the Corps of Engineers, upon their • discovery of what was taking place, but was later allowed to resume because “the damage had already been done” and completion of the channel would expedite the already delayed removal of the camps.

Subsequently, the Corps of Engineers required that the levee base be repaired by filling the channel that had been improvidently cut. Because of the urgency of this repair, appellee Hughes was persuaded by Chalin 0. Perez, President of the Plaque-mines Parish Commission Council, to contract for the needed repairs, pay $25,490.97 therefor, and accept an assignment of all claims the Parish had against Bernard’s corporation for same.

In its own right, appellee Hughes also asserts claim due from Bernard or his corporation for rental of the barge “ORLEANS” in the amount of $6,850.00.

In our previous opinion, we noted:

“ . . .As the record now stands, it does not reflect if the'9,685.11 cubic yards of shell furnished to plaintiff were used exclusively to fill the 322-foot segment of the excavation as required by the Corps of Engineers. Should part of this material have been used to backfill any portion of the flotation channel beyond the limits of the Corps of Engineers requirements, rather than backfill with the excavated soil, the defendant may well be entitled to an adjustment of plaintiff’s claim for its assignor’s failure to minimize the cost of repairs. Further it is relevant to establish at what point in the excavation the Parish officials ordered the canal continued to facilitate the camp-moving contract for this too can adversely affect the amount of plaintiff’s claim.”

We also determined that the repair claim could only be asserted against Bernard’s corporation, not Bernard personally, because the assigned claim arose from a contract with the corporation. In revoking writs, the Supreme Court affirmed this determination.

With regard to the barge rental claim, we determined that the hourly rental rate was $42.50 but were unsure of the number of hours worked by the barge. Thus, on remand, the following issues were to be addressed:

1. if Bernard had, as an individual rather than a corporate officer, contracted for the barge rental, and was therefore individually liable for the rental due;
2. if the barge had operated for time periods as reflected by Jordan’s (its owner) records, as reflected by plaintiff’s invoice to Bernard, or less, because of repairs, as alleged by Bernard;
3. whether all of the shells that were used to fill the channel were needed as a result of the original improper cutting of same; and
4. whether the cutting had caused the total damages claimed.

The trial court held that Bernard had failed to identify himself in his corporate capacity, was therefore personally liable for the barge rental and denied credit for repair time on the ground that the contract provided for a 10 hour per day minimum which entitled plaintiff to be paid for ten hours even if the barge was not working because of being in need of repair. The court also awarded approximately two-thirds of plaintiff’s claim against Bernard’s corporation for channel cut refilling, in the net amount of $16,992.28.

Bernard now contends the trial court erred in holding him personally responsible for the barge rental since the requirements of La.Civil Code art. 2277 were not met. He avers that no documentary proof or corroborating circumstances confirm the contention that he failed to identify himself in his corporate capacity, and also disputes the trial court’s denial of credit for repair time. Bernard’s corporation now contends that the record does not support the award against it in the amount of $16,992.28. Ap-pellee did not answer the appeal.

We find that the record supports a conclusion that all or almost all of the proposed levee base had been cut when the channel was improvidently dug (which is not contradictory to the essentially irrelevant evidence that two-thirds of the channel had been excavated). Bernard’s own testimony at the original trial indicates repeatedly that the Corps of Engineers allowed resumption of the channel excavation because the damage to the proposed levee base had already been done.

At the first trial on the merits, Bernard, himself, responding to an inquiry regarding the stoppage of the cutting of the channel by the Corps of Engineers, responded as follows: “They told him to go on because the damage had already been done.” (Emphasis ours.) This was reiterated by him when, in response to the question: “Do you know when the cut was finally finished?”, he responded: “Whenever they said go ahead and finish cutting because the damage had already been done. . . . ” Essentially the same acknowledgement is apparent throughout Bernard’s first trial testimony.

The same is true of Perez’ testimony, who, in responding to an inquiry regarding the removal of the barge, answered: “Because the damage had already (sic) done to the levee based area . '. .” and, further, “So, then, the last part then was just cut on the basis of the decision that this was just as good of a way of getting out of there as any other way and that most of the damage had been already done.”

On the question of whether the entire amount of shells was used in the affected area, no additional evidence was adduced on remand. At the first trial, Bobby Dagley, Hughes’ representative, testified that the Corps of Engineers supervised the job so that the filling of the cut would comply with their specifications. On the basis of this evidence, we are of the view that plaintiff made a prima facie showing of the use of the shells for the required repair. Bernard did not go forward with any evidence to the contrary.

We conclude that at least two-thirds of the levee base was excavated (more likely, all of it), and, accordingly, the judgment against the Sherman A. Bernard House Moving and Shoring Corporation in the amount of $16,992.28 is supported by the record and should be affirmed.

Dagley testified that he did not remember Bernard saying anything about a corporation when he called to lease the barge. He also stated that all of his notes refer to Bernard only as Sherman Bernard or S. A. Bernard. These notes were not introduced into evidence. Hughes’ invoice showed that Bernard was billed as “Bernard House Moving and Shoring.” On the basis of this sketchy evidence, the trial court concluded:

“Mr. Hughes testified that he did not know Bernard had a corporation and his dealings with Bernard were as a person and in fact, when he told Dagley that Bernard was O.K., he meant Bernard personally. This is corroborated by the bill being sent to Bernard House Moving and Shoring without any reference to a corporation. Hughes knew that Bernard was in the house moving business because he had worked for Hughes before.
Bernard testified that when he called Dagley, he identified himself as Sherman Bernard, President of Sherman A. Bernard House Moving and Shoring Corporation. This is extremely unlikely and contrary to the notations made by Dagley at the exact time that the phone call was made. Bernard is relying on his memory now about a telephone conversation that took place in July of 1968, over eight years ago.” (Reasons for Judgment.)

In order to meet the requirements of proof of La.Civil Code art. 2277, the testimony of a credible witness must be supported by corroborating circumstances. See, e. g., Bordlee v. Pat’s Construction Company, Inc., 316 So.2d 16 (La.App. 4th Cir. 1975). Although the credibility of Dag-ley’s testimony is governed by the manifest error doctrine, it is not supported by documentary proof or corroborating circumstances. Dagley’s notes are not in evidence and cannot be considered corroborative of his testimony. The mere omission of the word “corporation” from the bill to Bernard House Moving and Shoring is not a proper basis for finding that Hughes was billing Bernard on an individual basis. If relevant at all, this evidence tends, in our view, to indicate that Hughes was dealing with Bernard House Moving and Shoring, not with Bernard individually. In fact, there is no refutation of Bernard’s testimony that he has not engaged in the moving and shoring business individually since 1954 when the corporation was formed. We are of the view that there is insufficient proof of any contract between Hughes and Bernard individually and that the record supports only a finding of indebtedness on the part of Bernard’s corporation — Sherman A. Bernard House Moving and Shoring.

Since the remand produced no further evidence of the basic number of hours worked by the rented barge, we need only consider the issue of credits for repair time. There is .no proof in the record that the oral contract which provided for payment of the ten hour minimum fee excepted time lost because of repairs being necessary.

The detailed logs of the barge operator contained the following notation:

“7:00 A.M. to 12 Noon placing camp number 3 and rigging down. 12:00 Noon to 5:00 P.M. changing from block to bucket and repairing tag line and spud cable.” (Emphasis added.)

On remand, Dagley testified that changing from block to bucket takes IV2 to 3 hours so that we can thus deduce that the repairs took 2 to 3V2 hours. Accordingly, the record does support the awarding of a credit, at $42.50 per hour, for 3 hours of repair time not necessarily attributable to the job. Bernard also claims that the barge was not working — because of lack of friction — for one full day. His testimony is the only evidence to this effect. The detailed logs of the barge operator do not bear this out. We find no manifest error in the trial court’s denial of credit for repair time on that alleged occasion.

Accordingly, the judgment of the 25th Judicial District Court is affirmed except for that portion of the judgment which casts Bernard individually for the barge rental. In that instance, the judgment is amended and rendered against the corporation so that it is now ordered, adjudged and decreed that there be judgment herein in favor of H. B. “Buster” Hughes, Inc. and against Sherman A. Bernard House Moving and Shoring Corporation in the total amount of $22,889.78, less a credit of $127.50 (3 hours @ $42.50 per hour), plus interest from date of judicial demand, and all costs in the trial court proceedings; the claim of H. B. “Buster” Hughes, Inc. against Sherman A. Bernard individually is dismissed. All parties to this appeal are to bear their own costs.

AFFIRMED IN PART, AMENDED IN PART AND RENDERED.


author: STOULIG, Judge.

text:
    Shirley GEIGER v. Garnett C. HALLMARK, ABC Insurance Company, Allright New Orleans, Inc., and XYZ Insurance Company.
    No. 8755.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Gertler & Gertler, M. H. Gertler, New Orleans, for plaintiff-appellant.
    William B. Morgan, II, New Orleans, for Garnett C. Hallmark, defendant-appellee.
    Before REDMANN, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Shirley Geiger, has appealed a judgment dismissing her damage suit based on two brutal beatings by defendant Gar-nett C. Hallmark. We reverse that part of the judgment dismissing her suit against Hallmark.

On October 16, 1973, Hallmark kicked, pushed and punched plaintiff leaving her with a broken arm, two fractured ribs, internal injuries that required exploratory surgery, facial bruises and discoloration, and contusions on her body. As a result she was hospitalized for 11 days. On July 9, 1974, Hallmark once again battered plaintiff with the usual multiple blows to the body and a punch in the right eye that left her with double vision. Again she was hospitalized — this time for four days.

In weighing the evidence, we have viewed it in a light most favorable to the defendant because the result reached by the trial court implies factual discrepancies were resolved in his favor. In relating his version of both altercations, his version is either improbable or inconsistent or both.

The October incident involved a dispute over the woman who later became the third Mrs. Hallmark. Plaintiff and defendant were living together at the time and Shirley Geiger found a money clip given to defendant by another woman. She pretended to throw it from the window of their second story apartment into Dauphine Street and defendant became enraged. According to her, defendant first broke her arm, then continuously punched her, kicked her and finally walked into the bedroom and locked the door. She used a knife to spring the lock in an attempt to get her clothes and belongings so she could leave. Defendant pushed her out of the bedroom twice, re-locking the door and when she went back a third time she succeeded in getting her belongings.

Hallmark has insinuated through his defense that his actions were reasonable either because she was threatening him with a knife or inflicting severe pain by grabbing his genitals. But he tells different stories at the deposition and at the trial.

In his deposition he said the fight started when plaintiff threw two or three drinks on him as he was lying in bed because he was ignoring her. He said he threw her out and locked the door and three different times she came into the room carrying a kitchen knife six inches long (including blade and handle). He admitted he was not afraid of her or the knife and that he was stronger than she. Finally when she threw his money clip out (or pretended to), he pushed her on the couch. She started to attack him and he threw her to the floor and would slap her back down every time she tried to get up. He said he finally kicked her when she grabbed his genitals and kept kicking until she let go. (At this point in the fight no matter whose version is believed, plaintiff had a broken arm.)

At the trial Hallmark said the money clip incident started the fight and the knife scenes in the bedroom came later. Hallmark denied hitting plaintiff with his fist, yet Joanne Thaxton, the friend who took plaintiff to the hospital after the beating, said she clearly saw the imprint of what she recognized to be defendant’s ring on plaintiff’s battered body.

Benny Thaxton, Joanne’s husband, who also knew defendant, testified Hallmark told him a week later he beat Shirley up because he got tired arguing with her.

The second incident also finds defendant with conflicting stories at trial and deposition. Plaintiff and defendant had resumed sharing an apartment when she was released from the hospital in October 1973 and continued this arrangement until early March 1974. Although they decided to live separately they continued seeing each other. On July 8, 1974 they arranged to meet for a few drinks and ultimately decided to share accommodations at the Downtowner Motel. Plaintiff said she was sitting on the bed in their room when for no apparent reason Hallmark walked in, made some reference to the lobby and punched her in the eye and then continued to beat her.

Defendant however contradicted her. In the deposition he testified he was drunk and had passed out as soon as he stretched out on the bed and remembers nothing else until he found himself on the floor with plaintiff on top of him. In pushing or shoving her aside, somehow she got a black eye, presumably by striking a piece of furniture. At the trial he testified his blow to plaintiff was in response to her attempting to pull him up or out of bed by yanking his hair.

We find defendant viciously beat the plaintiff both times. Undoubtedly the money clip incident was provocation to anger; but defendant’s response was out of proportion. The most favorable legal proposition to defendant is that in both instances plaintiff was the aggressor. Even were we to accept this argument, defendant would still be liable because he is only entitled to repel an attack with reasonable force. In the version where he describes Mrs. Geiger as a threatening presence, he admits he was not afraid of her or the knife. This is demonstrated by the fact that he did not attempt to take it away from her on the two times he locked her out of the bedroom.

No matter which of defendant’s versions of the July incident we accept — pushing plaintiff from him as he lay on the floor or punching her after she pulled his hair — neither justifies battering the alleged aggressor into the hospital.

Defendant used excessive force in responding to both incidents and is answerable in damages. In Deville v. Wilks, 229 So.2d 128, 130 (La.App. 3rd Cir. 1969); the court drew the limits of self-defense, viz:

“The established rule is that a party who resorts to excessive violence and unnecessary force in repelling an assault, although initially acting in self-defense, becomes liable as an aggressor and is subject to an action for damages for assault and battery. Gallagher v. Taylor, 203 So.2d 773 (La.App. 2 Cir. 1967).”

See also Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969).

Turning to quantum, we think an award of $15,900 is justified in this case. This award includes special damages of approximately $3,900 of which $360 constitutes lost wages and the balance is medical expenses.

As a result of the first battery, she incurred a broken arm, multiple bruises, two fractured ribs and an internal puncture that required sutures after exploratory surgery. The surgery left a 10-inch abdominal scar which plaintiff displayed to the trial court. Her arm was set in a cast and it mended within the normal six to eight weeks. Her disability from the first episode lasted six months.

As to the second incident, the double vision problem was the most serious, but she discontinued treatment after five weeks. In addition to the multiple bruises over her torso, she was required to undergo two separate surgical procedures (1) to correct the blepharoptosis and (2) to remedy the cosmetic problem associated with the eye injury.

For the reasons assigned, the judgment appealed from is affirmed insofar as it dismisses plaintiff’s suit against the ABC Insurance Company, Allright New Orleans, Inc., and its insurer. The judgment appealed from is reversed insofar as it dismisses the suit against Garnett C. Hallmark and it is ordered, adjudged and decreed that there be judgment in favor of Shirley Geiger and against Garnett C. Hallmark in the sum of $15,900 with legal interest from judicial demand and for all costs.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . Also named defendants were ABC Insurance Company in the event Hallmark had a homeowner’s policy (he did not); Allright New Orleans, Inc., Hallmark’s employer, and its liability insurer. No effort was made in the trial to establish liability of the employer and its insurers.

      . See discussion of the aggressor doctrine in 1 So.U.L.Rev. 91 (1974).

      . Blepharoptosis is the drooping of the upper eyelid.


text:
    Horace McKINLEY v. Samuel S. DALTON and Richard F. Davis.
    No. 8765.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Earl B. Gray, Metairie, for defendant-appellant.
    Gerald P. Aurillo, Metairie, for plaintiffs-appellees.
    Before REDMANN, BOUTALL and BEER, JJ.
   BEER, Judge.

On October 20, 1973, plaintiff Horace McKinley was involved in an intersectional collision with defendant Samuel S. Dalton, who was driving an automobile owned by defendant Richard F. Davis.

In the ensuing lawsuit, judgment (without written reasons) was entered by the trial court in favor of McKinley and against Dalton in the amount of $1,500, plus interest from date of judicial demand until paid, and, also, for all costs including the deposition cost of $71.25. (The judgment makes no explicit determination as to defendant Davis.) From this judgment, defendant Dalton appeals; plaintiff McKinley has answered, alleging quantum should be increased.

By stipulation of the parties, the issues on appeal are:

1) whether the trial court correctly received into evidence the deposition of Dr. Mary Ellen Black, plaintiff’s treating physician, and
2) whether the trial court determination as to quantum was correct.

At trial, it was stipulated that appellant Dalton is liable, and that property damages are due appellee in the amount of $100.

Appellee’s attempt to introduce into evidence the deposition of Dr. Black was met with an objection by appellant that the prerequisites of La.C.C.P. art. 1428(3)(d) had not been met.

The deposition was taken by counsel for appellee on April 2,1976, in the presence of appellant, and appellant’s counsel, who cross-examined the witness. As the deposition began, the following colloquy took place:

“MR. AURILLO:
Usual stipulation, Earl?
MR. GRAY:
Yes.
MR. AURILLO:
To be used for all purposes as provided for by the Rules of the Code of Civil Procedure.
MR. GRAY:
Not for the perpetuation of the testimony.
MR. AURILLO:
Yes. I put it in every deposition notice.
It is stipulated and agreed that the testimony of DR. MARY ELLEN BLACK, is hereby being taken pursuant to the Rules of the Louisiana Code of Civil Procedure for all purposes as provided thereby. The formalities of sealing, certification and filing are waived. All objections, except those as to the form of the question, are reserved until the time of the trial of the cause.”

A subpoena for trial attendance was directed to 134 Hector Avenue, Metairie, Louisiana (the address Dr. Black had given at the deposition) but was returned unserved with the notation “moved out, 3 ladies living here.” Counsel took the stand as a witness and testified that he had checked the phone book and found no address for Dr. Black and that he had been to her former office a number of times and found that she was no longer there. He also attempted to testify, over objection, that he called the Louisiana State Board of Medical Examiners and found no new address for Dr. Black, and stated for the record that she had told him the previous summer that she intended to quit her practice and move to California.

The general rule regarding sufficient proof of unavailability of a witness is set forth in 26A C.J.S. Depositions § 92(2)b(b), as follows:

“The absence of a witness may be sufficiently shown in various ways and by proof of a variety of facts and circumstances addressed in many instances to the discretion of the court. The absence of a witness may not be shown by one who can speak to that fact only from hearsay. It is sufficient to show that a reasonable effort has been made to serve the deponent with a subpoena, that inquiry has been made at his usual place of business or abode, and that letters have been received from him from another state or country. Proof which raises a reasonable presumption that the witness is dead or outside the jurisdiction of the court is all that is required; and where it appears from the order to take the deposition or from the deposition itself that deponent resides outside the jurisdiction or beyond the prescribed distance it is sufficient. On the other hand, the mere issuance of a subpoena or attachment, or its return not served because the witness could not be found, or mere statements on the part of deponent, are not sufficient to allow the introduction of a deposition in evidence, when any uncertainty as to deponent’s whereabouts exists.” (Footnotes omitted.)

It is clear under the Louisiana jurisprudence that hearsay evidence may not be considered in the judicial inquiry as to unavailability. Bland v. Interstate Fire and Casualty Co., 311 So.2d 480 (La.App. 4th Cir. 1975).

In light of Bland, id., the trial court should not have considered the testimony of counsel to the effect that Dr. Black had told him she intended to move to California, or that as a result of his phone call to the Louisiana State Board of Medical Examiners, he was unable to find a new address.

But, even excluding the hearsay evidence, there was sufficient proof of unavailability on the basis of which the trial court properly admitted the deposition into evidence. Counsel’s attempt to subpoena the doctor at the address noted in her deposition, coupled with the other actions proven by competent evidence, constituted a sufficiently diligent effort to produce her at trial. The stipulation in the deposition that it might be used for any purpose provided for by the Code of Civil Procedure and the fact that appellant had ample opportunity to cross-examine Dr. Black convinces us that he was not unduly prejudiced by admission of the deposition.

With regard to quantum, appellant argues that the award of $1,500 plus interest and costs was excessive, and should be reduced to $500. It is appellee’s contention that the $1,500 award included $215 for doctor’s fees and $100 for property damages, leaving only $1,185 for general damages. A proper measure of general damages, he alleges, would be $3,500.

The record reveals that appellee’s alleged injury occurred when he was thrown against his car door in the October 20, 1973 accident. Nine days later, after consulting his attorneys, he visited Dr. Black and complained of neck pain. Several weeks later, he complained of back pain. Dr. Black diagnosed moderate cervical strain (or a secondary cervical muscle spasm), a strain of the upper thoracic spine, and a contusion and muscle strain of the left upper arm. For these injuries, she prescribed a muscle relaxant drug, a heating pad and moist heat. Appellee made eight visits to the doctor. According to her deposition testimony, some eight or ten weeks after the accident, he had some improvement in the neck and upper arm, but still suffered muscle spasm in the neck. Approximately six months after the accident, Dr. Black discharged appellee, upon finding that he still had some degree of discomfort in his back, depending on his activity and position, but that medication was no longer necessary. According to appellee, back pain continued for two months after he was discharged from Dr. Black’s care.

Appellant, in support of his contention that the award was excessive, makes much of the fact that appellee first consulted a lawyer before seeing a doctor, and waited nine days after the accident to do so. However, Dr. Black’s testimony indicates that it was not unusual for symptoms such as McKinley’s to develop some time after the accident.

In Hurd v. Toups, 348 So.2d 1270 (La. App. 4th Cir. 1977) ($2,000 awarded for mild cervical strain; plaintiff under doctor’s care for five months); Corley v. West, 346 So.2d 1272 (La.App. 3rd Cir. 1977) ($1,500 awarded for cervical muscle spasm requiring one week hospitalization and 5-6 weeks treatment); Wilson v. Dixie Auto Ins. Co., 345 So.2d 994 (La.App. 2nd Cir. 1977) ($2,000 awarded for acute cervical strain); and Hankton v. New Orleans Public Service, Inc., 343 So.2d 1082 (La.App. 4th Cir. 1976) ($1,000 awarded for severe cervical strain requiring two months doctor’s care), similar injuries have resulted in similar awards.

The judgment is affirmed, at appellant’s cost.

AFFIRMED.

      . In Bland, the Court of Appeal found trial court error in allowing into evidence a doctor’s deposition. It held that a medical certificate from the witness’ physician was hearsay, and, therefore, insufficient to establish his unavailability.