author: STOULIG, Judge.

text:
    In re Mr. and Mrs. Michael E. PSCENICKA applying for adoption of Craig Paul Martin, Jr., and Melissa Marie Martin.
    No. 8628.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Feb. 14, 1978.
    Robert A. Pitre, Jr., Gretna, for appellant.
    Arnold & Giepert, Melvin J. Giepert, New Orleans, for appellees.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ,
   STOULIG, Judge.

This is an appeal from an interlocutory decree awarding custody of Melissa Marie Martin and Craig Paul Martin, Jr., to the maternal grandparents, Mr. and Mrs. Michael Pscenieka, who are seeking to adopt them. Appellees’ daughter Cynthia Martin, mother of the children, has given her consent; however, their father, Craig Martin, Sr., opposes the adoption of his children. Mr. and Mrs. Pscenieka contend the consent of the father is unnecessary because his failure to comply with a support order of the Juvenile Court for the Parish of Jefferson constituted a waiver of his right to oppose an application for adoption by the grandparents under R.S. 9:422.1. The statute provides:

“If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
(2) The other' legitimate parent has refused or failed to comply with a court order of support for a period of one year $ * #

The record reflects that appellant did fail to comply with the juvenile court’s order for support payments for a period in excess of one year before appellees filed this application for adoption. On May 9, 1975 appellant was ordered to pay $40 per week to the Pscenickas for the support of his two children. Between this date and September 19,1975 appellant paid a total of $252.30 in four payments, the last of which was $28.50. The petition for adoption was filed on September 24, 1976.

In defense of his failure, the father asserted obstacles were placed in his way when he attempted to support and/or visit his children. The record does not bear this out. Both Craig, Jr., and Melissa have lived with their maternal grandparents most of their lives. After neglect charges were brought against the parents, the Pscenickas were awarded temporary custody by the juvenile court and by the civil section of the 24th Judicial District Court in domestic litigation between the parents.

The juvenile court ordered that the right of visitation with the children could not be exercised by either parent unless the visit' was supervised by either the maternal or the paternal grandparents or at least one of them. By testimony of all four grandparents it is clear that appellees have liberally made the children available to the paternal grandparents and that appellant has had unlimited access to visitation with his children provided he saw them in the company of his own parents as required by the court’s order. The father testified he did not support the children because the maternal grandparents have a greater right to their company than he does. This circumstance does not relieve him of his obligation to comply with the support order of the juvenile court.

Appellant argues the grandparents seeking adoption had an obligation to demand that he comply with the judgment during the year of noncompliance. We find no merit in this position. If Craig Martin, Sr., had valid complaints, he should have used orderly judicial process to have them heard rather than resorting to economic coercive tactics. See In re LaFitte, 247 La. 856, 174 So.2d 804 (1965) and Matter of Adoption of McArthur, 333 So.2d 372 (La.App. 4th Cir. 1976).

While there may be instances where the parent may justify noncompliance and defeat the automatic consent effect of R.S. 9:422.1, the case before us is not one of such instances. See Bailey v. Bailey, 335 So.2d 694 (La.App. 2d Cir. 1976). As we view it the defense urged is an afterthought by which appellant sought to justify his noncompliance after he lost his right to protest.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Appellant was initially ordered to pay child support of $20 every two weeks commencing on November 28, 1973. As of March 22, 1976 the delinquent child support amounted to $1,697.20.

      . Consent judgment of custody in favor of ap-pellees dated October 4, 1974 in the matter of Martin v. Martin, No. 160-267 of the 24th Judicial District Court, Division “E”, Parish of Jefferson.


source: Caselaw Access Project

author:
STOULIG, Judge.
      LEMMON, Judge,

license: Public Domain

text:
    STATE of Louisiana in the Interest of Denise GRAY et al.
    No. 8726.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Eugene Barriffe, Jr., New Orleans, for appellant.
    George S. Ingalls, Jr., Asst. Dist. Atty., Parish of Orleans, for the State of Louisiana, appellee.
    Clement F. Perschall, New Orleans, for Marjorie Gray, appellee.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Althea Gray Green has appealed a judgment under which the Orleans Parish Juvenile Court assumed protective custody of her nine-year-old daughter, Denise Gray, and then awarded temporary custody to the child’s grandmother, Mrs. Marjorie Gray. The judge based this decree on a finding that Mrs. Green neglected her child; therefore, the court had jurisdiction to act under circumstances described in R.S. 13:1570(A)(1) that confers this authority.

We reverse. The record does not contain sufficient evidence to support a conclusion that Althea Gray Green neglected her child Denise. Rather, it appears to us that Marjorie Gray attempted to obtain legal custody of her granddaughter via a juvenile court neglect charge against the child’s mother. We summarize the pleadings and testimony that led us to this result.

On July 27, 1976, a petition was filed in juvenile court alleging, inter alia, that Denise was a neglected child under R.S. 13:1570(A)(1) in that her mother, Althea Green, “manifested no interest in Denise’s welfare or made any provisions for her support.” Mrs. Marjorie Gray, her grandmother, requested custody.

On August 27, 1976, the hearing set in conjunction with the petition was continued and the judge placed the child Denise in the temporary custody of her grandmother.

On September 30, 1976, the district attorney amended the original petition alleging acts of neglect “on or before July 26, 1976” to change the date to “on or before September 30, 1976” and to allege Althea Gray Green also was guilty of neglecting her two other minor children, Corey and Chárlene Gray.

After a hearing, the juvenile court concluded the evidence established Denise had in fact been neglected by her mother but that there was no proof appellant neglected her other two children.

Mona LeBeaux, a welfare and social worker for the Division of Family Services, investigated the Althea Gray Green household. She concluded that the physical surroundings in the home were adequate and that Mrs. Green provided adequate food, clothing, medical care and supervision for her children before and after school. In short it was her opinion from actual observation that Denise and the two other children were not neglected by appellant.

The incident the district attorney emphasized to prove neglect was the arrest of Althea Green on August 18, 1976 on charges of juvenile neglect. Earlier that evening — 11:30 p.m., August 17 — Denise reported to police she was home alone with two younger children. The police took the children to their grandmother’s home nearby upon finding their mother was not there. The record fails to disclose when Mrs. Green returned but she did explain she was showing out-of-town guests some places of interest and left the children with Denise when the child insisted she would be all right without a sitter. Charges filed against Mrs. Green growing out of this incident were dismissed.

That this incident upon which the State relied occurred three weeks after the first neglect charge was filed in juvenile court is significant. Marjorie Gray even admitted this is the only police incident of which she is aware insofar as Althea and the children were concerned.

The testimony of Marjorie Gray does not establish Althea’s neglect. It reflects her feeling that she has a greater claim to custody of Denise because she feels she loves her more, the child has lived in her home for many years, and Denise herself has expressed a preference to be with her.

Even were her evaluation of the situation accurate, this does not mean that Marjorie Gray has a legal basis for demanding custody. As sympathetic as we are to her wish to care for this grandchild, we will not deprive appellant of custody because the evidence fails to establish neglect as outlined in the following statute:

“Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
A. Concerning any child whose domicile is within the parish or who is found within the parish:
(1) Whose parent or other person legally responsible for the care and support of such child neglects or refuses, when able to do so, to provide proper or necessary support, education as required by law, or medical, surgical or other care necessary for his well-being; or who is abandoned by his parent or other custodian; or who is otherwise without proper care, custody, or support; or who is a live born human being, as defined in R.S. 13:1569(16)(e), who survives and is not killed in an abortion attempt.” R.S. 13:1570(A)(1).

The sanction against the parent found guilty of neglect or abuse of his or her child or children is severe. Under R.S. 13:1580 the juvenile court is empowered to deprive a parent of custody, thus any determination of neglect that may serve as a basis for this harsh judgment should be supported by clear and convincing proof. The record before us does not support the finding of neglect by the juvenile court. Therefore it does not have jurisdiction to deprive the mother of custody and for this reason the custody of the child must be restored to the mother.

At the risk of pointing out the obvious to the litigants, we note Marjorie Gray and Althea Gray Green live within a block of each other and are in a position to combine efforts to rear Denise secure in the knowledge of their love and concern for her.

For the reasons assigned the judgment appealed from is annulled and the petition of neglect is dismissed.

JUDGMENT ANNULLED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge,

concurs and assigns reasons.

The record does not support a finding that the child was ever neglected. Mrs. Green voluntarily allowed her child to live for a number of years with Mrs. Gray, the child’s grandmother, who provided the child with proper care. This voluntary and temporary relinquishment of custody to her own mother does not constitute neglect, as argued by the grandmother, or form any other basis for precluding Mrs. Green from regaining custody at any time.

      . State in Interest of King, 310 So.2d 614, 617 (La.1975):
      “An action to declare a child neglected under R.S. 13:1570 is a drastic action, resulting in the children becoming wards of the state even though the court may grant custody of the children to an individual, including a parent, or may place the children in a foster home or an institution. La.R.S. 13:1580.”


text:
    Cindy Bisignani, wife of/and Thomas BISIGNANI, Individually and on behalf of their minor son, Tab Bisignani v. SPORT CAR BROKERAGE, INC.
    No. 8788.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Fine & Waltzer, Michael G. Bagneris, New Orleans, for plaintiffs-appellants.
    Vosbein, Hilleren & Bains, David Paul Bains, New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   STOULIG, Judge.

Plaintiffs, Mr. and Mrs. Thomas Bisigna-ni, have appealed a judgment dismissing their suit against defendant, Sport Car Brokerage, Inc. (1) for the rescission of a sale on an automobile for redhibitory vices; and (2) for damages for personal injuries their minor son Tab allegedly incurred when the defective vehicle caught fire.

The record contains a writing evidencing that on September 8, 1975 defendant sold Mrs. Bisignani a used 1968 Volkswagen convertible with an odometer reading of 87,617 miles for $1,295. The bill of sale bears the logo of Sport Car Brokerage, Inc., and all the printed material is readable at a glance. The print is large. Across the bottom appears the caveat: “The above vehicle is warranted as to title only.”

Before the sale was made, Gary Gaethe, defendant’s representative, assured plaintiffs that the following defects they pointed out would be repaired: (1) wires dangled loose from the chassis; (2) the trunk would not open because the lock release was inoperable; and (3) a vent window was broken. Almost immediately the first two conditions were remedied. The window was replaced in due course after Gaethe obtained the replacement part.

Plaintiff accepted the car with the understanding the window would be replaced in the near future. Within several days Tab and his father noticed the shift would not stay in fourth gear and also that a red caution light, indicating a faulty generator, remained lit on the dashboard. There is a discrepancy' in the testimony of the various members of the Bisignani family as to when the problem with the shift first manifested itself. In any event plaintiffs returned the car to the defendant’s premises and Gaethe agreed to repair it at no extra expense.

When plaintiffs returned a week later, the gear had not been repaired. Gaethe affixed a strap around a front seat and told Tab Bisignani to loop it tautly around the gearshift to hold the fourth gear position. This was to be a temporary arrangement until defendant could obtain a transaxel for the seven-year-old car, which was needed to permanently remedy the gearshift condition. At this time the defendant installed a new generator.

The day the car was returned to Tab with the jerry-rigged gear and the new generator, it caught fire as he was backing out of his driveway. The mechanic who subsequently repaired the fire damage said it probably started in the carburetor; but he testified that the carburetor was properly installed and was not defective. While the standard Volkswagen carburetor has a single barrel, the mechanic explained, the Bisignani car had a double barrel system which had a tendency to leak more gas and make the car more susceptible to fire.

The mechanic did not say this carburetor was unsafe. The record bears out the cost for repairing the damages and repainting the affected area was approximately $50. Plaintiffs produced no testimony to rebut the expert opinion tendered on defendant’s behalf.

Finally, plaintiffs returned the car and refused to accept it after defendant had the fire damage repaired. In dismissing this suit the trial judge held that this case was governed by C.C. art. 2531, which requires a seller to remedy vices and defects in the object he sells which are apparent and which the buyer could have and did discover by simple inspection. C.C. art. 2521. The record reflects that the seller corrected plaintiffs’ complaints as promptly as the availability of parts would permit.

The evidence fails to establish the gearshift problem was apparent at the time of the sale. Even though Mrs. Bisignani and Tab both testified it became obvious the first time Tab shifted into fourth gear, the record does not bear this out. Mr. Bisigna-ni described the shift popping out of fourth gear as he and his son drove on the Lake Pontchartrain Causeway. Tab also testified to driving on high speed arteries in Jefferson Parish before he became aware of the shift problem. Under these circumstances, it is difficult to accept the statement of Mrs. Bisignani and Tab that the first time he shifted into fourth gear on the way to a football game the gear popped out. There is not much evidence about the generator problem but the record is uncon-tradicted that it was repaired. Additionally the fire damage and the gearshift were repaired and the car was tendered back to plaintiffs. Defendant has met its obligation under the law.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . C.C. art. 2531. “The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.”


author: BOUTALL, Judge.

text:
    Mrs. Harriet Goldberg Hyman, wife of/and Elliott HYMAN v. NATIONAL SUPER MARKETS, INC.
    No. 8441.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Meyer Sabludowsky, New Orleans, for plaintiff s-appellants.
    Guste, Barnett & Shushan, William M. Barnett, New Orleans, for defendant-appel-lee.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   BOUTALL, Judge.

Mr. and Mrs. Elliott Hyman sued for damages resulting from personal injury to Mrs. Hyman in a Canal Villere store owned by National Super Markets, Inc. The trial court concluded that there was no actionable negligence on the store’s part, and dismissed their suit. They appeal.

Plaintiffs contend that they were shopping in the supermarket and as they ap•proached that particular display area, while Mrs. Hyman was still some three feet away, a large glass punch bowl and several cups fell from an open display box on a shelf some 9 inches from the floor and shattered, one of the shards of the punch bowl cutting Mrs. Hyman’s foot. They testified that they had not yet reached the area of the bowl and did nothing that would cause the bowl to fall.

We consider the applicable law to be the same as governs in slip and fall situations where plaintiff shows that she sustained an injury on defendant’s premises not caused by any action or inaction on her part, the burden of proof is shifted to the defendant. The defendant store owner must then show that it is free from fault and has provided a reasonably safe place for its customer to shop by maintaining a vigilance of its floors and stocks of merchandise in a reasonably safe condition commensurate with the hazards involved. If the evidence produced is sufficient to rebut the presumption of negligence, the store-owner is exonerated from liability. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Kavlich v. Kramer, 315 So.2d 282 (La.1976); Green v. Schwegmann Bros. Giant Supermarkets, Inc., 325 So.2d 621 (La.App. 4th 1976); Johnson v. Insurance Company of North America and Schwegmann Bros. Inc., 351 So.2d 190 (La.App. 4th Cir. 1977).

To rebut the inference of negligence raised by plaintiffs, the defendant offered evidence to show that the aisles and display areas were regularly cleaned and inspected; that the area had been inspected approximately an hour before the incident by the Assistant Manager who was going off duty and had been reinspected by the co-manager who was coming on duty within a half hour of the incident. It was further shown that this particular display, being a promotional display, was treated differently than the ordinary stacks of merchandise, and had been specially handled. A consideration of this testimony leads to a conclusion that the store had done all that was reasonably required to insure that its merchandise was safe from falling.

The trial judge concluded that there was no actionable negligence on the storekeeper and we agree. There was a dispute in the testimony of the witnesses as to some of the facts of the occurrence. While plaintiffs insist that the large punch bowl and several cups fell to the floor and shattered, the co-manager testified that there was only one cup that was broken. In resolving this question of credibility, the trial judge could very well have considered the improbability of the shattering result testified to by plaintiff in a fall from a shelf, only 9 inches from the floor, causing injury three feet away. In any event, there is sufficient evidence in the record to support the conclusions of the trial judge, and we find no manifest error.

The judgment is affirmed.

AFFIRMED.


text:
    Sam J. VITRANO v. Gregory VITRANO.
    No. 8570.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.
    See also, La.App., 346 So.2d 303.

      Charles S. Lagarde, Jr., Luling, for Sam J. Vitrano, plaintiff-appellee.
    Gordon Hackman, Boutte, for Gregory Vitrano, defendant-appellant.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

The issue presently before us is a procedural matter, arising out of a suit to annul an act of sale of real estate for lack of consideration. One of the defendants, Joan Melancon Vitrano, took a devolutive appeal from a default judgment annulling the sale and ordering the property transferred back to plaintiff, Sam J. Vitrano, and it is the timeliness of this appeal which is in question.

The default judgment was signed on October 22, 1976, no new trial was requested, and on January 10, 1977 Joan Vitrano filed a petition for suspensive appeal, accompanied by a bond. This was denied the same date by the trial judge on the ground that the delays had passed. However, on January 17,1977, the trial judge signed an order of devolutive appeal and another bond was posted on January 20th. Appellee, Sam J. Vitrano, then filed answer in this court seeking damages for frivolous appeal, together with a motion to dismiss the appeal because it was untimely filed.

We considered that motion and denied it because there was no evidence contained in the record to show personal service of process on the defendant and no showing that the notice of judgment required in‘C.C.P. Article 1913 was sent. Without proof of one or the other situation, the motion to dismiss was necessarily denied. See 346 So.2d 303.

Since that time, the record has been supplemented by the filing of service of process and citation with the return of the Sheriff showing personal service upon the defendant, Joan Melancon Vitrano, on the 23rd day of September, 1976. The appellee has filed another motion to dismiss, and the matter came up along with the regular assignment on the merits. In any event we are required to notice, sua sponte, our lack of jurisdiction. Reeves v. Reeves, La.App. 1975, 315 So.2d 162. As the record now stands in this case, there was personal service on the defendant which removes the requirement of notice of judgment under C.C.P. Article 1913, and the appeal before us is on the face of the record, untimely taken.

We call attention to the fact that from the date of judgment, October 22, 1976 to the filing of the devolutive appeal bond, January 20, 1977, ninety days have elapsed. C.C.P. Article 2087 had previously provided that the delay for taking a devolu-tive appeal was within 90 days after delay for applying for new trial or refusal of one, but it was amended effective October 1, 1976 to provide a sixty day period instead. In this case, no new trial was requested and the delay began to run from the expiration, of the time in which to seek a new trial. Since more than 60 days have lapsed, the appeal is untimely. The jurisdiction of this court attaches only upon the timely filing of the order of appeal and the appeal bond. C.C.P. Article 2088. Accordingly, we dismiss the appeal of Joan Melancon Vitrano at her costs.

Because of our lack of jurisdiction, we do not consider the question of damages for frivolous appeal.

APPEAL DISMISSED.


text:
    COLONIAL BANK v. Johnnie B. PETERS.
    No. 8615.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Newman & Drolla, Robert T. Wakefield, New Orleans, for Colonial Bank, plaintiff-appellant.
    James Overton Brooks, New Orleans, for Johnnie B. Peters, appellee.
    Before LEMMON, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

Colonial Bank appeals from a judgment dismissing its suit on a promissory note against Johnnie B. Peters.

The promissory note for $956.16 is alleged to have come into existence as a result of the sale of a 1965 Ford automobile by Canal Motors, Inc. to Peters and is a part of a document showing the details of the transaction, all parts of which are allegedly signed by Peters. The defendant answered denying all of the allegations of the petition, and affirmatively alleged that he had purchased on that date a Dodge automobile from Casey Ford and signed a document for the sale of that vehicle and then another document which he was told had something to do with the insurance on his purchase. He alleged the total failure of the vehicle he purchased and a cancellation of the sale with Casey Ford and that he heard nothing further about the incident until some three years later when Colonial Bank brought the suit. He alleged that the note is attached to a completely fraudulent and worthless chattel mortgage, that the chattel mortgage and note for a Ford is a complete fraud, and that at no time did he ever purchase a Ford.

After trial, the trial judge dismissed plaintiff’s suit finding that the plaintiff had failed to prove its case in the matter, that the defendant denied signing the note, and that there was no proof before the court that defendant did sign the note. Appellant raises before us solely the issue of admissibility of evidence denying signature, contending C.C.P. Article 1005 requires specific allegations of denial of a signature or allegations of forgery as an affirmative defense based on Article 2244 La.Civil Code. He refers us to Mirandona Bros. v. Danos, La.App.Orl.1952, 56 So.2d 159, and Olympic Homes, Inc. v. Ory, La.App. 1st 1968, 207 So.2d 258.

As we pointed out above, the defendant’s answer alleged the chattel mortgage and promissory note for a Ford automobile was a complete fraud, and the only documents that he admitted signing were the sale of the Dodge automobile and, another document which he was told involved insurance. We find compliance with C.C.P. Article 1005.

We further find the evidence supports the trial judge’s conclusion that plaintiff has not proven its case. Despite the allegations in the answer, the only evidence entered by plaintiff was the testimony of its auditor who viewed the bank’s records IV2 weeks before the trial, and based upon that concluded that Johnnie B. Peters had signed the documents, had applied for a loan from Colonial Bank and the bank had advanced some funds for the promissory note to purchase an automobile, all three and a half years previously. He could neither identify the names of any of the witnesses or Notary Public whose names are illegibly scrawled on the documents in question, nor anyone who could testify that Peters ever appeared at the bank, or for that matter at the automobile dealership. None of such prospective witnesses were produced. Not even a check or supporting voucher of any type was introduced to show that Colonial had advanced any funds on this transaction.

Further, simply looking at the document on its face, we note that there is a discrepancy in the name of the supposed seller, Canal Motors, rather than Casey Ford as the bank contends. Additionally, while the document carries the signature Johnnie B. Peters, Jr. in one place, in the other two signatures “Jr.” is omitted. We believe that the trial judge was correct. The judgment is affirmed.

AFFIRMED.


text:
    Dorothy Sellers GRICE v. AETNA CASUALTY AND SURETY CO.
    No. 8400.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.
    Writ Granted Feb. 24, 1978.

      Lawrence J. Duplass, Trial Atty., Johnston & Duplass, New Orleans, for Aetna Cas. and Sur. Co., defendant-appellee.
    Floyd J. Reed, J.D., Trial Atty., Reed, Reed & D’Antonio, Metairie, for Dorothy Sellers Grice, plaintiff-appellant.
    Before REDMANN, GULOTTA and BOUTALL, JJ.
   BOUTALL, Judge.

The plaintiff-owner of a policy of theft insurance appeals a summary judgment dismissing his suit as untimely because it was brought more than 12 months after the loss occurred in violation of restrictive policy provisions.

Both parties filed affidavits and we find that there is no genuine issue of a material fact. The facts are that the theft occurred on January 31, 1973; that the policy was in effect at the time of the theft, and the petition was not filed in the office of the Clerk of Court until September 12, 1974. The policy is a Home-Owners policy issued by the Aetna Casualty & Surety Company insuring Mrs. Dorothy Sellers Grice against a number of perils, including fire, theft, wind-storm, etc. It contains the following provisions relating to limitation of time for filing suit:

“No suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity unless all of the requirements of this policy shall have been complied with, and unless commenced within 12 months next after inception of the loss.”
******
“The terms of this policy which are in conflict with the statutes of the state wherein this policy is issued are hereby amended to conform to such statutes.”-

Clearly, suit was not brought within 12 months after date of loss, but the question posed for our consideration is whether the limitation provisions are themselves in compliance with the prohibition contained in the Louisiana Insurance Code, R.S. 22:629. That statute reads in pertinent part:

“A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation, or agreement:
******
“(3) Limiting right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all insurances unless otherwise specifically provided in this Code.
“B. Any such condition, stipulation, or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provisions of the contract.”

Simply put, the question is, does the policy limitation period “after inception of the loss” mean the same thing as the statutory requirement “from the time when the cause of action accrues”? If the cause of action “accrues” later than the “inception of the loss” then the two provisions are inconsistent and the policy’s shorter limitation is void.

First we note that the policy provision is that required to be contained in the standard fire policy under the provisions of R.S. 22:691. There is now no doubt but that such a provision is valid and indeed necessary in a fire insurance policy. See Gremillion v. Travelers Indemnity Company, 256 La. 974, 240 So.2d 727 (1970); P.O.P. Construction Company v. State Farm Fire & Casualty Company, 328 So.2d 105 (La.1976); Gambino Industries, Inc. v. Security Insurance Company, 333 So.2d 759 (La.App. 4th 1976). For fire policies, there is no conflict between Sections 629 and 691 because Subsection A(3) specifically excepts other provisions in the Code. We find no similar exceptions in relation to theft coverage, and theft policies are governed only by the provisions of Section 629, when the cause of action accrues.

A cause of action does not “accrue” until the suit may be legally instituted upon it, that is when it becomes immediately enforceable: Roques v. Continental Casualty Company, 17 La.App. 465, 135 So. 51, 52 (1931) in which the court cited Bou'vier’s and Ballentine’s Law Dictionaries: see also Black’s Law Dictionary, 4th Ed. p. 37. Under our policy, suit for a loss may not be legally instituted and payment for the loss is not enforceable until at least 60 days after the loss. Accordingly, the cause of action does not accrue until at least 60 days after the loss. We hold therefore that the cause of action does accrue later than the inception of the loss and that R.S. 22:629 therefore voids (in respect, at least, to insurance not within the standard fire policy,) the policy’s limitation of action to 12 months from inception of loss.

Since there is no valid limitation in the policy for theft losses, and § 629 does not limit filing of suit, but simply prohibits a lesser limitation than one year from the time when the cause of action accrues, the statutory contractual limitation of ten years applies. Louisiana Civil Code 3544. The suit for recovery of theft loss is timely brought.

The summary judgment dismissing this suit is reversed and the case is returned to the trial court for further proceedings.

REVERSED.


text:
    William L. WATSON and Rosemary Lewis, w/o William L. Watson v. UNITED STATES FIDELITY & GUARANTY CO. et al.
    No. 8562.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.

      Charbonnet & Charbonnet, Jack J. Char-bonnet, Kenny M. Charbonnet, New Orleans, for William L. Watson, et al., plaintiffs-appellees.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Edward P. Lobman, Jack M. Alltmont, New Orleans, for U. S. Fidelity & Guaranty Co. and Allen T. Johnson, defendants-appellants.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

Defendant motorist and his insuror appeal from a judgment granting $5,460.50 for medical expenses and personal injuries to plaintiff in an automobile accident case.

The accident occurred on Paris Road in the Parish of Orleans, approximately Vio mile north of the Bayou Bienvenue bridge when defendant, Allen T. Johnson, struck plaintiff William T. Watson’s automobile in the rear. This occurred in the left lane of the two northbound lanes, Paris Road at that point being divided by a wide neutral ground, and the several issues resolve themselves into a determination of fact as to how far from the neutral ground crossing the point of impact was.

Watson had made a left turn onto Paris Road from an auxiliary crossing in the neutral ground. He stated that he saw a car heading north on Paris Ave., some blocks away and had plenty of time to turn, travelling some 120 to 150 feet and attaining a speed of 40 miles per hour when rear-ended by the defendant. This version is reinforced by the testimony of one Tommy Lockhart, the driver of a car approaching from Watson’s right and apparently the car Watson saw. Lockhart testified that shortly before the impact he saw a car approaching from his rear very fast, headlights bobbing up and down. He changed lanes from left to right so that this car, driven by the defendant, would not strike him in the rear. Instead, when he pulled to the right, defendant went past him and hit Watson. The speed limit was 55 miles per hour; Lockhart testified he was travelling 55-60 mph himself, and estimated the defendant’s speed at 80 mph as he drew past. Under this version, the proximate cause of the accident was the negligence of the defendant in speeding and failing to keep a proper lookout. Although the judge below did not render written nor oral reasons, this is undoubtedly the version he believed.

Defendant contends that the collision was at or near the intersection, so that plaintiff’s left turn proximately caused or at least contributed to the collision. At trial, he offered the testimony of Patrolman Matt, investigating officer, who came on the scene after the accident. Patrolman Matt could not remember where debris from the wreck was found and did not record the distance from the intersectional gap to the point of impact on his police report. This distance he remembered to be some 30 feet from the north side of the opening in the neutral ground, but admitted this recollection could be wrong. The defendant testified that the 30 foot distance was correct and that his speed had been 55 mph. However he also testified that he had seen Watson’s tail-lights from the bridge, some Vxo mile away, which would place the plaintiff’s vehicle northbound on Paris Road at that time.

Defendant’s counsel attempts on appeal to raise a presumption that plaintiff’s wife, who was a passenger in his car at the time of the accident, because she did not testify, would have had testimony adverse to plaintiff’s case. The record reflects that Mrs. Watson, originally party to the suit, settled out and dismissed her action long before trial. Apparently she was present at trial yet was not called by either side. No presumption as to her not testifying was raised by pleadings or argument at trial.

It is just as reasonable to infer that she would have testified the same as her husband, or that she did not remember the events of two years prior. Since plaintiff positively testified, and since plaintiff produced an independent witness, her testimony may have been merely cumulative in effect. Since her testimony was not peculiar to herself and plaintiff, because an independent witness of unquestioned veracity had testified, no jurisprudential presumption arises. See Marion v. New Orleans Public Service, Inc., 806 So.2d 758 (La.App. 4th Cir. 1974), and Vaughan v. Dowling, 243 La. 390, 144 So.2d 371 (1962).

The trial judge’s determination of the facts then seem to be not unreasonable and, absent any showing of manifest error, will not be disturbed on appeal. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

As a result of the accident, plaintiff received injuries to his neck and low back, for which he was treated by Dr. Aiken.

As to quantum, defendants argue that plaintiff’s injuries did not prevent him from working as a teacher until after he was injured in a second accident a few months later, which apparently aggravated his injuries. However, due to the fact that at least $317.00 in medical expenses for visits and physical therapy had occurred before this second accident and treatment was continuing, and due to the fact that the judge below had the opportunity to examine the transcript of the second lawsuit before rendering a judgment, we cannot say that this award was unreasonable.

Accordingly, the judgment below is affirmed.

AFFIRMED.


author: BOUTALL, Judge. LEMMON, Judge,

text:
    Madeline Barry LACOSTE v. NEW ORLEANS PUBLIC SERVICE, INC. and South Central Bell Telephone Co.
    No. 8648.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.

      Ernest V. Richards, IV, Metairie, Frederic A. Wild, III, New Orleans, for Madeline Barry LaCoste, plaintiff-appellee.
    D. Dickinson Bann, Metairie, James D. Rives, New Orleans, for South Central Bell Tel. Co., defendant-appellant.
    C. B. Ogden, II, New Orleans, for New Orleans Public Service, Inc., defendant-appellant, third party defendant.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Madeline Barry Lacoste was awarded damages for personal injuries against South Central Bell Telephone Company occasioned by her being thrown from the seat of a New Orleans Public Service Inc. bus which stopped abruptly for a falling wire owned by the Telephone Company. The Telephone Company appeals, it being the only defendant cast in judgment.

Plaintiff was a passenger on the bus proceeding along Wickfield Drive in the City of New Orleans when the bus driver was confronted with a falling electric wire across the path of the bus, some ten feet away. Believing the electric wire to be live and dangerous, the bus driver stopped abruptly to avoid it, causing plaintiff to slide from her seat onto the floor of the bus, injuring her back and leg. It was later determined that the electric wire was a service drop line belonging to South Central Bell to service a residence across the street from the main line and that the wire was dead.

The only eye witness to the falling of the wire was the bus driver who testified that he had made 5 prior trips along that route, the last one and one-half hours before and that he had not noticed the wire at all, but that as he approached, he noticed the wire falling about ten feet in front of him, and stopped immediately. There were no vehicles or trucks immediately in front of him, and he could not say what caused the wire to fall. Testimony of repairmen who viewed the wire later was that the wire had broken towards its center, and had not pulled away from the connectors on either end.

The owner of a public service franchise is generally responsible for the maintenance of its equipment, and particularly electric wires such as here involved. The unexpected and unexplainable breaking of such a wire falling across a public street is a sufficient showing to establish responsibility upon the owner for foreseeable damages caused thereby. The plaintiff in this case has produced a prima facie case of negligence against South Central Bell and the burden of proof shifted to that defendant to extricate itself by showing lack of negligence or intervening cause. In this case, evidence was produced that such a wire does not normally break in the center, and that experience has shown usually some intervening cause, such as an oversized truck or other piece of machinery striking the wire and immediately breaking it, or stretching it to the point where subsequent breakage occurs. In this case, there was no showing that the wire was properly placed before the accident, nor any use of the street by any oversized vehicles. The evidence consisted of speculation as to what might have occurred and the trial judge apparently rejected that evidence in favor of a verdict for plaintiff. We find no manifest error in the judgment complained of.

The judgment is affirmed.

AFFIRMED.

LEMMON, J., concurs.

LEMMON, Judge,

concurring and assigning reasons.

A person is responsible not only for the damage occasioned by his act, but also for the damage occasioned by the things which he has in his custody. C.C. art. 2317. Thus, legal fault is attributed to the proprietor of a thing which causes damage unless that person proves that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Loescher v. Parr, 324 So.2d 441 (La.1975).

In the present case the thing which caused the damage was in the custody of South Central Bell, who installed and operated the line on public property under a franchise and was obliged to prevent the thing from causing damage. South Central Bell was therefore liable without proof of personal negligence and failed to escape liability by showing the damage was caused by the fault of a third person.


author: SCHOTT, Judge.

text:
    Dr. Stephen H. HELLMAN v. H. J. COMEAUX and H. J. Comeaux Realty Co., Inc.
    No. 8607.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.

      Wayne M. LeBlanc, Metairie, for defendants-appellees.
    Gaidry & Sundbery, Edward James Gaid-ry, Houma, for plaintiff-appellant.
    Before REDMANN, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment dismissing his suit for a reduction of the purchase price he paid defendants for an automobile allegedly containing redhibitory vices.

On August 14,1975, plaintiff purchased a 1973 Cadillac automobile from defendants for $5,000. The bill of sale contained the provision “Sold as is.” On August 16 plaintiff’s wife picked up the automobile at defendant’s home in Metairie, Louisiana, and drove toward her residence in Houma. When she reached Raceland, about 40 miles from Metairie, the automobile began to vibrate and this continued as she proceeded about 100 feet farther, whereupon she pulled to the side of the road and turned off the motor. The car would not start again and it was towed to a service station in Raceland where the starter motor was replaced. The car still would not start so that it was towed to the Cadillac dealer in Hou-ma.

The dealer’s service manager was qualified as an expert in all types of automotive repair work except transmission and front ends. When the cylinder head was removed from the engine he found that a valve head was lying on top of the piston, the cylinder wall on that particular cylinder was scored and the valve head was scored. He opined that the valve stem had stuck in the valve guide causing the piston to hit the valve face and break it off. In his opinion, the most probable cause of the valve sticking was improper lubrication. An entire new engine assembly was installed in the automobile at a cost of $1701.08.

Plaintiff testified that a day or two after he picked up the automobile, when this work was done, trouble with the transmission developed so that the automobile would not move, and he brought it back to the Cadillac dealer. Plaintiff testified that he had driven the car in the interim on short errands in Houma and for a distance of 80 miles from Houma to Morgan City and return.

The service manager of the dealer testified that in his opinion the transmission trouble was caused by coolant from the radiator leaking into the transmission diluting the transmission fluid. A bill was incurred for this second repair job consisting of overhauling the transmission in the amount of $676.15.

The invoices from the dealer show that the mileage on the Cadillac when it was brought in the first time was 40,156 miles and on the second time on September 29, 1975, was 40,331 miles.

The first question is whether under these circumstances plaintiff is entitled to an action in redhibition under LSA-C.C. Arts. 2520 et seq. Ordinarily the buyer must prove that the redhibitory vice existed before the sale was made to him but when the vice makes its appearance within three days immediately following the sale it is presumed to have existed before the sale. C.C. Art. 2530. Thus, in the case of the broken valve stem and resulting damage to the engine, the burden of proof was on defendants to prove that it did not exist at the time of the sale.

The only evidence for defendants was the testimony of defendant Comeaux who said that he had performed the usual maintenance on the car including regular oil changes and grease jobs and had no knowledge of any problems or difficulties with the automobile. While his testimony tended to establish that he did not know about the vice, it does not rebut the statutory presumption that the vice existed before the sale. We have concluded that plaintiff is entitled to a reduction of the purchase price based on a broken valve stem.

As to the overhaul of the transmission the presumption established by Art. 2530 does not apply. Based on the bills of the Cadillac dealer the automobile was not brought in for that work until over a month after the plaintiff’s purchase and the automobile had been driven almost 200 miles. The only expert called by plaintiff specifically excluded- himself as an expert on transmissions and did not testify that the leaking of the coolant into the transmission was the result of the initial breakdown or of the work done by the dealer to replace the engine assembly. Plaintiff had the burden to prove that this vice existed at the time of the sale. He does not have the benefit of the presumption and did not carry his burden of proof in this respect.

Finally, defendants contend that they are insulated from liability because the bill of sale contained “Sold as is.” Considering that the vice in the engine was far more than the kind of minor repairs one might expect in buying a used car but in fact rendered the automobile inoperable, this inclusion of words “Sold as is” does not deprive plaintiff of the fundamental warranty provided by the Civil Code. Nationwide Finance Co. of Gentilly, Inc. v. Jones, 279 So.2d 221 (La.App. 4th Cir. 1973); Juneau v. Bob McKinnon Chevrolet Company, 260 So.2d 919 (La.App. 4th Cir. 1972); McLain v. Cuccia, 259 So.2d 337 (La.App. 4th Cir. 1972).

Plaintiff incurred an expense with the service station in Raceland for replacement of the starter and towing in the amount of $79.77, which he is entitled to recover. As to the bill for replacement of the engine assembly, it includes an amount of $45.00 for towing the automobile from Raceland to Houma, which plaintiff is entitled to recover. As to the charge of $1701.08, the result of this work was to provide plaintiff with a brand new engine replacing the previous engine which was two years old and had approximately 40,000 miles of service. Plaintiff is not entitled to be placed in a better position than he originally bargained for, and we have concluded that an award of $600.00 out of this charge of $1701.08 will be just under the circumstances.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of plaintiff, Stephen H. Hellman, and against defendants, H. J. Co-meaux Realty Co., Inc. and Harold J. Co-meaux, jointly and in solido, in the sum of $724.77 with legal interest from October 21, 1975, until paid, and for all costs of these proceedings.

REVERSED AND RENDERED.


author: SCHOTT, Judge. BEER, Judge,

text:
    Nicholas A. TARDO v. NEW ORLEANS PUBLIC SERVICE, INC., Melvena Johnson, wife of and Nelson T. Butler, Sr.
    No. 8639.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.
    Writ Refused Feb. 24, 1978.

      Joseph N. Naccari, New Orleans, for plaintiff-third party defendant-appellant Tardo.
    Emile L. Turner, Jr., Thomas M. Young, New Orleans, for defendant-third party plaintiff-appellant Melvena and Nelson T. Butler.
    Floyd F. Greene, New Orleans, for defendant-appellee New Orleans Public Service, Inc.

      Before REDMANN, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

This is a tort action for injuries sustained by plaintiff on April 6,1973, as he began to perform roofing work on a house owned by defendants, Mr. and Mrs. Butler, pursuant to a contract with them.

In preparation for the work he placed an aluminum ladder against the side of the house so that the ladder was resting against a galvanized gutter. The bottom of the ladder was in a narrow alley alongside the house and adjacent to a metal fence separating the premises from the neighbor’s. As plaintiff started up the ladder with one foot on the rung of the ladder and one hand holding the ladder he placed his other hand on the metal fence in order to boost himself. At this time he received an electrical charge and was unable to free himself because his hands were “frozen.” He kicked, pulled and struggled to free himself, losing consciousness during the process. A helper took hold of his shirt and pulled him from the ladder so that the electrical connection was broken.

The Butlers notified NOPSI who dispatched someone to investigate. He found that a metal downspout on the corner of the house close to the point where plaintiff had placed his ladder had been installed over NOPSI’s electric wires serving this house and was pinching the wires in such a way as to scrape the insulation from the wires and expose them causing electrical contact with the downspout. Thus, the connecting gutter on which plaintiff’s ladder had rested was charged with electricity and when plaintiff made the connection between the ladder and the metal fence his body conducted the electricity.

Made defendants along with the Butlers were NOPSI and Hamilton. The Butlers filed a third-party demand against Hamilton, seeking indemnification and Hamilton filed counterclaims against plaintiff as well as his co-defendants.

The trial court awarded plaintiff a judgment against the Butlers and Hamilton for $15,000 in general damages plus medical expenses, and in favor of the Butlers on their third-party demand against Hamilton for a like amount. All other demands of the parties were dismissed. From that judgment the Butlers have taken an appeal disputing both liability and quantum, and plaintiff has also appealed seeking to hold NOPSI liable and to increase the quantum of the award. Hamilton did not appeal or answer the appeal.

The first question to be considered is the liability of the Butlers to plaintiff. They specify errors on the part of the trial court in finding evidence sufficient to support the judgment against them and failing to find the plaintiff contributorily negligent. They also argue that the trial court committed an error of law which is implicit in his holding them liable to plaintiff solidarily with Hamilton.

The trial judge gave no reasons for judgment but he could have concluded that the Butlers were liable under either of several theories, namely, vicarious liability under LSA-C.C. Arts. 2320 and 2324; independent negligence consisting of the Butlers’ failure to discover a reasonably discoverable hazard; or absolute liability without fault under C.C. Arts. 2322 or 2317.

C.C. Arts. 2320 and 2324 are as follows: “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” “He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

The evidence shows that Hamilton had been in the roofing business since 1957 and did it on a part-time basis in 1970 when he performed this work for the Butlers. At this time he had a full-time job with the Orleans Parish School Board doing roofing and sheet metal work. He held himself out to the Butlers as “Richard Hamilton Roofing and Sheet Metal Works,” and in that capacity had submitted an estimate to replace the gutters and downspouts. He performed the work without any direction, control or supervision from the Butlers.

In order to determine whether Hamilton was an independent contractor or an employee we look to Amyx v. Henry & Hall, 227 La. 364, 79 So.2d 483 (1955), where the Court said that the term independent contractor connotes freedom of action and choice with respect to the undertaking. Its status presupposes a contract between the parties as well as the independent nature of the contractor’s business so that it is not exclusive as to the means whereby it is accomplished. It should appear that the contract calls for a specific unit of work to be done according to the contractor’s methods without being subject to control and direction as to the method of performance. It contemplates that the employer only controls the end result of the services. There must be a specified price for the undertaking agreed upon and a specific duration of time as opposed to termination at the will of either side. The Court went on to say:

“It is well settled by our jurisprudence that besides other factors, the most important test in determining ‘whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer.’ It is also well settled that whether the employer ‘actually exercises control or supervision’ over the movements and the services rendered by the employee, such a fact is of no great moment, the ‘important question is whether, from the nature of the relationship, he had the right to do so.’ ”

From our previous discussion of the relationship between the Butlers and Hamilton, and a consideration of the foregoing principles, we must conclude that Hamilton was an independent contractor. Plaintiff relies principally on the vagueness of Hamilton’s testimony in which he could remember no details of this job and very little about his contact with the Butlers. But he did recognize his written “contract” and acknowledged that he performed the work at the site. Despite the weakness of his testimony, however, that of the Butlers was sufficient to show that this was a typical roofing job whereby they were interested only in the end result of having new gutters and downspouts, they agreed to pay a price for that work and they exercised absolutely no control or direction over Hamilton as to his methods whatsoever. Hamilton was an independent contractor and neither Art. 2320 nor Art. 2324 is applicable in his relationship to the Butlers.

Plaintiff asserts the Butlers were negligent in selecting a contractor who they should have known was incompetent for the job, but we do not find evidence to this effect. Hamilton was an experienced roofer when he was employed by the Butlers and he had the outward appearance to the Butlers of a regular roofing contractor as evidenced by the estimate and bill he gave to them. Neither do we find merit in plaintiff’s charge of negligence on the part of the Butlers for failing to inspect the work done by Hamilton. While the technical witnesses at this trial testified that the placing of the gutter spout over the electric lines constituted improper workmanship, we cannot say that a typical lay person is charged with such knowledge and furthermore the defect was not readily apparent even to observers more knowledgeable than the Butlers. In fact, plaintiff himself had inspected the premises prior to submitting his bid and he was not aware of the hazard.

The Butlers have argued that the award of indemnity to them by the trial judge was tantamount to a finding by him that they were only vicariously liable for Hamilton’s tort. If they were liable as joint tort-fea-sors they could only enforce contribution against Hamilton. Hebert v. Blankenship, 187 So.2d 798 (La.App. 3rd Cir. 1966). Thus, they say that we must reverse the judgment against them if we find there is no vicarious liability. But we deem this to be an oversimplification.

In Truxillo v. Gentilly Medical Building, Inc., 225 So.2d 488 (La.App. 4th Cir. 1969), an invitee in a building slipped and fell and was awarded a judgment against the building owner and the custodial company in solido for his injuries. The court allowed the building owner indemnity against the contractor even though they were cast in solido on the theory that the negligence of the contractor caused injury to the building owner who is only liable on theoretical grounds for damage actually inflicted by the contractor. In the same way, if the Butlers are liable to plaintiff on theoretical grounds, they have been caused injury by Hamilton who actually inflicted the injury on the plaintiff. It is on this basis that we must now address ourselves to the plaintiff’s theory of liability on the Butlers’ part based on C.C. Art. 2322, which provides as follows:

“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

In Davis v. Royal Globe Insurance Companies, 257 La. 523, 242 So.2d 839 (1971) the Court considered a landlord’s liability under Art. 2322 to his tenant’s child who became ill from eating flakes of lead based paint. The Court held that the “ruin” contemplated by the article has reference to the actual fall or collapse of a building or one of its components. The facts of the instant case simply do not come within that definition. A different result would be reached under Adamson v. Westinghouse Electric Corporation, 236 So.2d 556 (La.App. 4th Cir. 1970) but we deem that case’s reasoning to be overruled by the Davis case by implication.

Next, plaintiff asserts liability on the part of the Butlers based on Loescher v. Parr, 324 So.2d 441 (1976) in which the Supreme Court extended holdings in Turner v. Bucher, 308 So.2d 270 (1975) and Holland v. Buckley, 305 So.2d 113 (1974), imposing liability without proof of negligence for del-ictual acts of a small child and a dog respectively to liability for damages caused when a diseased tree fell from defendant’s property on plaintiff’s automobile. The Court based its decision on Art. 2317, which provides;

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

(Emphasis supplied)

The Court reasoned that the tree was a thing in the custody of defendant and liability thus arose out of the article.

However, at page 449 the Court concluded:

“ . . . The owner-guardian of the defective tree is therefore liable for his legal fault in maintaining the defective tree and in preventing its vice from causing injury, unless he prove that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.”

(Emphasis supplied)

The question becomes whether or not the Butlers’ proof that plaintiff’s injury was caused by the fault of a third person, Hamilton, exonerates them from liability to plaintiff. In the Loescher case the court considered defendant’s argument that wind which contributed to the fall of the diseased tree was the “irresistible force” spoken of in the article but found that the wind in question, while high and gusty, “was not so abnormal as to be unforeseeable” and declined to exonerate defendant. They thus equated the irresistible force spoken of in the article with an unforeseeable condition. Unlike the wind in the Loescher case, the injury producing fault of Hamilton was abnormal and the unusual and hazardous condition created by him was unforeseeable by the Butlers.

But does liability under C.C. Art. 2317 and the Loescher case attach considering that almost three years intervened between the time that Hamilton installed the downspout over the electric wire and the time of plaintiff’s injury? Did the Butlers’ maintenance of the defective thing over such a long period of time supersede Hamilton’s fault? We believe that the very passage of so much time strengthens the Butlers’ position. Having employed Hamilton to perform this relatively simple task in 1970 and believing it was done properly, how could they foresee that his fault would manifest itself in 1973 when plaintiff met with his accident?

There may be an inherent contradiction between holding an owner liable for maintaining a defective thing and exonerating him from liability where he can prove that the fault was caused by a third person because the imposition of liability without fault would seem to make irrelevant the fault of a third person. But the exception was made by the Supreme Court and under the facts of this case it seems to have application with the result that the Butlers were not liable under Art. 2317.

We have therefore concluded that there is no basis for holding the Butlers liable to plaintiff and will reverse plaintiff’s judgment against them.

On plaintiff’s appeal he argues that the part of the electric wires which was pinched behind the downspout was the property of NOPSI and that NOPSI violated a duty to insulate the wires properly and to exercise the highest degree of care and constant vigilance in inspecting and maintaining them in perfect condition. The evidence shows that this installation was properly made by NOPSI in 1968. It had no knowledge whatsoever of any deficiency in the wires until plaintiff’s accident was reported and its investigator learned that the downspout had been installed over their wires. Under these facts the trial judge correctly found that plaintiff did not prove a case of negligence against NOPSI.

Because NOPSI was the legal owner of that portion of the wires behind the downspout, we find it appropriate to discuss NOPSI’s liability under Art. 2317 and the Loescher case, even though the parties have not raised the issue. In the first place, NOPSI’s technical ownership of the wires did not necessarily constitute them as things in their custody under the circumstances. But assuming that they were, the same disposition we made of this argument with respect to the Butlers applies likewise to NOPSI. They proved that plaintiff’s damage was caused by the fault of Hamilton, and under the Loescher case they are exonerated from liability. Likewise, the; passage of three years of time since Hamilton committed his act of negligence did not supersede his fault so as to make NOPSI liable to plaintiff.

Accordingly, that portion of the judgment in favor of plaintiff and against defendants, Nelson T. Butler, Sr. and Mrs. Melvina Johnson Butler, is reversed and set aside and there is judgment in favor of these defendants, dismissing plaintiff’s suit against them at his cost.

REVERSED AND RENDERED.

BEER, J., concurs with written reasons.

BEER, Judge,

concurring.

I agree with the majority opinion regarding liability.

In my view, the case requires additional comment with respect to quantum since it may be subject to further judicial scrutiny. The amount of the award is unsupported by the evidence. In my view, the absolute maximum range of award which this record can conscionably support is $3,000 to $4,000. Half of that would be quite adequate.


text:
    James H. RAWLS v. Harry DOMERAY, Ray Plauche, John Doe, American Motorists Insurance Company and Kemper Insurance Companies.
    No. 8956.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.

      F. L. Morris, Metairie, for plaintiff-appel-lee.
    Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, for defendants-appellants.
    Before LEMMON, SCHOTT and BEER, JJ.
   ON MOTION TO DISMISS

SCHOTT, Judge.

This is before us on a motion to dismiss the appeal taken by defendants Ray Plauche and American Motorists Insurance Company (AMIC) from a judgment signed on April 25, 1977.

On October 13, 1976, Plauche and AMIC moved for a summary judgment to dismiss plaintiff’s claim against them. On November 5 the trial judge signed a summary judgment dismissing the suit against Plauche only and this judgment contained the following preamble:

“Counsel for plaintiff and counsel for defendants jointly advise the Court that the motion for summary judgment filed by Ray Plauche and American Motorists Insurance Company should be granted in favor of Ray Plauche only and dismissing him, with prejudice, from this lawsuit.”

This judgment had been prepared by defendant’s counsel and sent to the trial judge on November 2 under a covering letter to the judge, stating as follows:

“Counsel for plaintiff, Frank Morris, has advised me that he has no objection to my motion for summary judgment being granted in favor of Ray Plauche. Accordingly, I attach a Judgment for your signature.”

On November 24 plaintiff’s counsel filed a “rule to set aside summary judgment” saying that he was notified that the summary judgment had been granted to Plauche and that he had not consented to such a summary judgment. The trial judge heard oral argument on this rule before both counsel on April 15, 1977, and thereafter signed the judgment now on appeal which set aside the previous summary judgment.

In his observations at the hearing on the rule the trial judge indicated that he believed there was a breakdown of communications and he treated the rule to set aside the summary judgment as a timely motion for a new trial in view of the fact that plaintiffs counsel was not present when the summary judgment was signed and was not given notice of the signing of the judgment.

We agree with the trial judge. The summary judgment signed on November 5 has the same effect as if a trial had been had upon evidence regularly adduced. LSA-C.C.P. Art. 968. Plaintiff had seven days exclusive of legal holidays in which to apply for a new trial, Art. 1974, and this seven day delay never commenced to run for the simple reason that plaintiff was not notified of any hearing being held on the motion for summary judgment and the judgment itself was ex parte out of the presence of both counsel based upon an honest error by the trial judge that both parties had consented, when in fact they had not. Thus, we deem the motion to set aside this summary judgment as a timely motion for a new trial and the judgment appealed from to be a judgment granting a new trial.

The granting of a new trial is not a final judgment and cannot be appealed. Bunge Corporation v. Emmons, 320 So.2d 230 (La.App. 3rd Cir. 1975); Levy v. Stelly, 230 So.2d 774 (La.App. 4th Cir. 1970).

Accordingly, the appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


author: BEER, Judge. REDMANN, Judge,

text:
    THOMSON INTERNATIONAL COMPANY v. Richard BRAZAN.
    No. 8367.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Boudreaux & Clement, Larry P. Bou-dreaux, Thibodaux, for plaintiff-appellant.
    Glynn A. Long, Donaldsonville, for defendant-appellee.
    Before REDMANN, SCHOTT and BEER, JJ.
   BEER, Judge.

Thomson International Company (hereafter, “Thomson”) seeks to recover the sum of $4,429.71 alleged to be owed by Brazan for service and parts furnished in the attempted repair of a harvester.

Brazan had purchased a used harvester from Thomson, who agreed that for $1,500 it would be put in good working condition. Work was, accordingly, done on the machine by Thomson. However, the performance of the harvester was unsatisfactory, resulting, finally, in attempts by Brazan, himself, to repair it. In the course of these efforts, he obtained a number of harvester parts from Thomson. Thus, the sum sought to be recovered here is the total of the original $1,500 plus subsequent invoices for services and parts, some of which cover the parts obtained and installed by Brazan after the initial (unsuccessful) attempted repair by Thomson.

The trial court determined that the agreement to repair the harvester' for $1,500 had never been effectively carried out. Thomson’s claim was dismissed not only as to the $1,500, but as to the entire amount, including the parts obtained and installed by Brazan.

Thomson appeals.

It appears by inference that the able trial judge concluded that any expenses related to the repair of the harvester were not recoverable since such expenses were incurred pursuant to the agreement to put the harvester in working condition — an agreement that the record indicates was breached.

However, certain of the work done (and the parts used for it) is difficult to categorize as repair work. For example, invoice #3828 (P-1) covers, in part, a charge of $1,000 for converting the wheels of the harvester to a larger size. According to Thomson’s sales manager, Collinson, the estimate of $1,500 did not include wheel conversion which was estimated separately at $1,000. Indeed, Brazan’s somewhat confusing explanation of the purpose of the wheel conversion (Tr. 65) is that it was done at his request and separately from the repair work. However, there is also testimony to indicate that the reason for placing larger wheels on the harvester was because it would not run in wet soil conditions. (Tr. 57.) Thus, the wheel conversion could be categorized as a repair in that respect.

Invoice #3759 (P-2) shows a charge of $75.90 for services of James Woods, who operated a harvester lent to Brazan. The trial court found this charge to be “related to” the issue in litigation, as was the case in the conversion of the steering mechanism to cylinder type steering, at a price of $484.22.

The trial judge dismissed all of these claims, observing:

“This is a suit initially filed by Thompson International Company seeking recovery the sum of $4,429.71 on open account for repairs, parts, service furnished to the Defendant, Richard Brazan. Defendant filed an answer and reconventional demand which it has set forth that the Defendant had purchased a certain piece of equipment from the Plaintiff specifically a used Golden Harvester and that these repairs were the responsibility of Plaintiff under the terms of that purchase agreement. The Defendant further alleged that certain defects existed in said harvester which were of such a nature as could not be discovered upon simple inspection at the time of the purchase, that these defects rendered the harvester useless to petitioner in recon-vention who therefore asked for a resci-sión of the sale and a refund of the purchase price in the sum of $12,951.12. The testimony indicates that both parties, of course, were aware of the fact that this was a used harvester, however, the testimony also indicates specifically that of Mr. Anderson and Mr. Brazan which was not, in fact, seriously contradicted by Mr. Collinson, that there existed an agreement on behalf of the Plaintiff that for the sum of $1,500.00 it would place the equipment in good working order. In the testimony, specifically again that of Mr. Anderson, Mr. Brazan and Mr. Peltier, is to the effect that the equipment was not ever placed in good working order as called for by the terms of the agreement between Plaintiff and Defendant. The Court is of the opinion, therefore, that Plaintiff is not entitled to recover the sum sought for repairs to the machinery in question. With regard to the reconventional demand, the Defendant certainly became’aware of these defects some time in October of ’73. Despite that fact, he continued to use the harvester as much as was possible, brought no suit for a rescisión of the contract until the reconventional demand filed in this matter more than two years after the act of sale. The Court understands the law to be that an action in redhibition or the action quanti minoris must be brought within one year of the sale or one year of the discovery of the defects. However, the law also recognizes the rule qua temporali which simply says that that which is permanent . temporary, rather, by way of offense is permanent by way of defense. I think that the Defendant’s action in redhibition comes too late and it will be denied. However, based upon the testimony of Mr. Anderson, Mr. Brazan and Mr. Peltier that the equipment was never placed in good working order as was the obligation of the Plaintiff, the Plaintiff’s suit will be dismissed at its cost. The reconventional demand will also be dismissed on the grounds that it was not timely filed.”

The trial judge’s remarks seem to indicate that the original claim for $4,429.71 was dismissed on two separate grounds: (1) the equipment was never placed in good working order and (2) Brazan is entitled to a reduction equal to that amount under “the rule qua temporali.”

We are more inclined to the view that Brazan is entitled to such relief as would be forthcoming if, as the record indicates, the agreement (to put the harvester in good working condition) was breached. Such a conclusion certainly obviates his responsibility to Thomson for the original $1,500 charge and for all additional charges which can reasonably be categorized and designated as “repairs” required to place the harvester in good working condition.

We have some difficulty in determining what falls into the category above described and have pretty much resorted to a conclusion based upon the trial court’s apparent finding.

Accordingly, the judgment is affirmed. Each party to this appeal is to pay its own costs.

AFFIRMED.

REDMANN, J., concurs.

REDMANN, Judge,

concurring.

Ignoring that prescription was never pleaded to the reconventional demand for rescission (and cannot be supplied by the court, C.C.P. 927), the trial court’s reference to quae temporalia indicates a conclusion that the harvester was redhibitorily defective. I agree that the defectiveness at least entitled defendant to a reduction in the price in excess of the $1,000-plus claimed by plaintiff other than for ineffective repairs.


author: BEER, Judge.

text:
    Berthella Clark, wife of and Eddie CLARK, as administrators of the Estate of their Deceased son, Ronald Joseph Clark v. TENNECO, INC. and its wholly owned subsidiary, Tenneco Oil Company, Charles Kilgore, Paul Floth, Ray Brooks, Dennis Caballero, C. W. Rackley, A. R. Dudley, L. R. Spence, Delta Field Erection, Inc., Harding J. Alleman, Sr., E. S. Odum, Earnest S. Odum and Hal S. Phillips and their Insurer, Liberty Mutual Insurance Company.
    No. 8584.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.

    Writ Refused Feb. 24, 1978.

      Daniel E. Becnel, Jr., Reserve, C. William Bradley, Jr., Edgard, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John C. Combe, Jr., Howard E. Sinor, Jr., New Orleans, for defendants-appellees.
    Charles R. Maloney, John J. McCann, New Orleans, for intervenor-appellee.
    Before REDMANN, SCHOTT and BEER, JJ.

       Redmann, J., voted to grant.

   BEER, Judge.

Mrs. Berthella Clark and Eddie Clark, surviving parents of Ronald Joseph Clark, appeal from the trial court’s maintaining of an exception of no right of action which dismissed their suit. Their son had been killed in an explosion at the Chalmette, Louisiana plant of Tenneco, Inc. on August 12, 1976. He was survived by his wife, Adele Newman Clark, whom he had married on December 16, 1972, but the couple had lived together for only a short period following their marriage. Adele had then departed from their marital domicile and had filed a suit for separation. Decedent had counterclaimed, but no judgment had been, thereafter, rendered.

After Adele’s departure, decedent moved to his mother’s home and lived there until his death, providing her support. According to Berthella Clark’s testimony, decedent and his estranged wife had lost touch with each other during the three and a half years that they remained separated. Berthella Clark identified decedent’s remains following the accident and paid for his funeral.

Adele, despite the estrangement, did not long delay in filing suit to recover for loss of love and affection, support, etc. Mr. and Mrs. Clark also filed suit. The two cases were consolidated and, thereafter, the trial court maintained the exception of no right of action which precipitated this appeal.

La.Civ.Code art. 2315 provides that the claim of a surviving spouse precludes any right of action on the part of decedent’s parent(s). However, appellants urge that the term “spouse” as used in article 2315 requires that the duties of fidelity, support and assistance, as set forth in La.Civ.Code art. 119, be, in fact, met. Additionally, they argue that article 2315 should be interpreted in light of Louisiana succession law, specifically La.Civ.Code art. 924.

Louisiana courts have refused to apply succession law to affect the determination of beneficiary under art. 2315. See, e. g., Simmons v. Brooks, 342 So.2d 236 (La.App. 4th Cir. 1977); Collins v. Becnel, 297 So.2d 510 (La.App. 4th Cir. 1974), writ ref., La., 300 So.2d 842; Lopiparo v. Varnado, 208 So.2d 354 (La.App. 1st Cir. 1968), writ ref., 252 La. 263, 210 So.2d 506.

Although the wrongful death statute is sui generis, as this court recently noted in Simmons v. Brooks, supra, at 237, “LSA-R.C.C. Article 2315 cannot be isolated from other sections of the Revised Civil Code in interpreting its meaning.”

Thus, in Simmons v. Brooks, id., we looked to La.Civ.Code art. 214 to determine that an adopted child was not a surviving child of his biological father for purposes of wrongful death recovery. Similarly, in King v. Cancienne, 316 So.2d 366 (La.1975), the Supreme Court interpreted article 2315 in conjunction with La.Civ.Code arts. 117 and 118 in determining that a putative spouse was a spouse for article 2315 purposes, and in Cosey v. Allen, 316 So.2d 513 (La.App. 1st Cir. 1975), the presumption of paternity, La.Civ.Code art. 184, was applied.

We are not unwilling to consider codal articles in attempting to correctly apply art. 2315. That, we perceive, is, in fact, our duty. But, in doing so, we can not ignore La.Civ.Code art. 136, which provides:

“The bond of matrimony is dissolved,
1. By the death of the husband or wife;
2. By a divorce legally obtained;
3. Whenever the marriage is declared null and void, for one of the causes mentioned in the fourth chapter of this title; or when another marriage is contracted, on account of absence, when authorized by law.
Separation from bed and board does not dissolve the bond of matrimony, since the separated husband and wife are not at liberty to marry again; but it puts an end to their conjugal cohabitation, and to the common concerns, which existed between them.”

Thus, we see that although La. Civ.Code art. 119 sets forth duties of a spouse, failure to fulfill those duties does not result in termination of the marriage.

In Harris v. Lumbermen’s Mutual Casualty Co. of Chicago, Ill., 48 So.2d 728 (La.App. 1st Cir. 1950), a wife judicially separated from her deceased husband for one year prior to his death was accorded a right of action in preference to deceased’s mother. Soon after, in Jones v. Massachusetts Bonding & Insurance Co., 55 So.2d 88 (La.App. 1st Cir. 1951), and undivorced wife who was living with another man at the time of decedent husband’s death, and who was not dependent on him, was held to be the proper plaintiff, even though there were surviving children, two of them were dependent on decedent. Rejecting the plaintiff children’s argument that the wife had forfeited her right of action, the First Circuit concluded, “To hold with the plaintiff we would be legislating, in that the codal article makes no distinction between a faithful and unfaithful wife or surviving spouse, in absence of legal action by the husband and the severing of the matrimonial tie.”

Appellant correctly concedes that where there is specific law, there is no remedy in equity under La.Civ.Code art. 21. Thus, the code and jurisprudence require us to reach a result which, perhaps, signals the need for legislative consideration as noted by our brothers of the First Circuit.

The judgment must be affirmed, at appellant’s cost.

AFFIRMED.


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

text:
    Dr. and Mrs. Lewis Wayne HILL v. JOHN L. CROSBY, INC.
    No. 8644.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Faris, Ellis, Cutrone, Gilmore & Lauten-schlaeger, Camille A. Cutrone, New Orleans, for defendant-appellant.
    Hammett, Leake, Hammett, Hulse & Nelson, W. Paul Andersson, New Orleans, for plaintiff-appellee.
    Before REDMANN, SCHOTT and BEER, JJ.
   BEER, Judge.

On October 30, 1969, Dr. and Mrs. Lewis Wayne Hill purchased a home which the seller, John L. Crosby, Inc. (hereafter, “Crosby”), had constructed.

By August, 1974, the Hills had experienced trouble with mildewing and rotting of the frame upper part of the house to the extent that they contracted with Shilstone Testing Laboratory to analyze the problem. Mr. George Pappas of Shilstone concluded that the rotting and mildewing was being caused by water seepage into the boards of the house due to their untreated butt ends. Pappas was of the opinion that this defect resulted from unworkmanlike performance on the part of the builder. On the basis of this, Dr. Hill sued John L. Crosby, Inc. on October 30, 1974. Subsequently, Dr. Hill died in an accident, and Mrs. Hill was substituted as plaintiff.

Following trial, Crosby raised the issue of prescription, contending that the applicable prescriptive period in a case involving breach of warranty on a house constructed as a speculation is one year from the discovery of the vice complained of, as prescribed by La.Civ.Code arts. 2534, 2545 and 2546, as opposed to the five-year period provided by La.Civ.Code art. 2762 and further contending that discovery of the vice occurred more than one year prior to suit.

The trial court (without written reasons) rendered judgment for plaintiff in the amount of $3,000 plus interest and costs, and Crosby appeals.

The inapplicability of the five-year prescriptive period of Article 2762 to a claim in warranty on a house built for speculation was discussed in Hermeling v. Whitmore, 140 So.2d 257, 262 (La.App. 1st Cir. 1961):

“Under the facts of this case Schmeider built the house as a speculation. He purchased the lot, had the plans and specifications prepared by a draftsman, and undertook to construct the house. When it was completed he then put it on the market and promptly sold the house to Suggs. Under these facts we find that the building was not ‘undertaken to make by the job.’
“Article 2762 is in the section of the Civil Code having to do with ‘Constructing buildings according to plots, and other work by the job, and of furnishing materials.’ The first Article in this section, Article 2756, reads:
‘To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.’
“This rule has been extended in the case of Matthews v. Rudy, 4 La.App. 226 (1926), where the defendant agreed to build a house on a lot owned by him in accordance with the defendant’s own plans and specifications. But in that case there was an agreement made with the prospective purchaser prior to the construction of the house that the entire house and lot would be transferred to the plaintiff for a price agreed upon. “Counsel has cited no case, and we know of none, which has applied LSA-Civil Code Article 2762 to the situation where the builder constructs a house to his own plans and specifications and thereafter puts the building and lot on the market for sale. In such a case the builder is treated as a vendor and Article 2762 does not apply. (Emphasis added.)” Accord, Clark v. Cottage Builders, Inc., 131 So.2d 121 (La.App. 2nd Cir. 1961).

In Hermeling, supra, at 260, the First Circuit noted that the owner-contractor is presumed to have knowledge of latent defects. (Accord, Rey v. Cuccia, 298 So.2d 840 (La.1974).) Thus, the prescriptive period applicable here is that which is to be applied where the seller is deemed to know of the vice, i. e., one year from discovery of the vice, as provided by La.Civ.Code arts. 2534, 2545 and 2546. Rey v. Cuccia, supra; Christy-Ann-Lea., Inc. v. Charter Homes of Louisiana, Inc., 327 So.2d 569 (La.App. 4th Cir. 1976), writ denied, 332 So.2d 277 (La.1976); American Insurance Company v. Hartford Accident & Indemnity Company, 198 So.2d 757 (La.App. 1st Cir. 1967), writ refused, 251 La. 26, 202 So.2d 649; Hermeling v. Whitmore, supra.

Did the Hills discover the vice complained of prior to October 30,1973 (one year before the date suit was filed)?

Mrs. Hill contends that the vice complained of is not the mildewing but the “serious and ongoing deterioration of the second floor wooden exterior walls.” The record reveals the following:

1. October 30, 1969, the house, new at the time, was purchased by appellee from appellant.
2. By 1971, the mildew had become “pretty bad.” In late 1971, the house was steamcleaned and some rotting boards were noted.
3. In August, 1973, the mildew had become “blackish” and the Hills had it repainted by a contractor, Collins, who replaced rotten boards. They were advised by Collins that more boards would later need replacing.
4. Later in 1973, a second steam-cleaning was necessary.
5. In August, 1974, the Shilstone Testing Laboratory was contacted. Their employee designated the contractor’s failure to waterproof the board ends as the cause of the condition.
6. On August 21, 1974, Dr. Hill wrote Crosby requesting some assistance in the matter.
7. Suit was filed on October 30, 1974.

Knowledge that something was wrong with the house existed for a long time before the cause was determined:

“MR. CUTRONE (COUNSEL FOR CROSBY):
Q. Mrs. Hill, is it a fair statement that what you’re complaining of in this lawsuit is basically first of all extensive mildew on the exterior, entire wood and exterior of your home plus the rotting of the wood on the exteri- or of the home, is that correct, those basically are the two things, appearance plus the rotted wood?
A. Extensive rotted wood.
Q. Both of those conditions are conditions which were first noticed in 1971?
A. Yes, sir.
Q. And got progressively worse all the way until 1973, at which time the house was repainted, correct?
A. Yes, sir.” (Tr. 36, 37.)

However, it is appellee’s contention that neither she nor her husband were aware of the cause of the problem until the Shilstone tests and report were available, just a few months prior to suit. Can this be said to be the discovery of the vice upon which La.Civ. Code art. 2546 focuses?

Black's Law Dictionary defines “discovery” as “the ascertainment of that which was previously unknown; ” and “vice” as “a fault, defect or imperfection.”

Limiting our conclusions to the peculiar facts and circumstances of this particular case, we conclude that the vice here existent was not discovered until the consultation with Shilstone Testing Laboratory and that, accordingly, the action was timely filed.

The judgment is affirmed, at appellant’s cost.

AFFIRMED

REDMANN, J., concurs.

SCHOTT, J., dissents.

REDMANN, Judge,

concurring.

The sale of a house by a builder who built it on his own land to sell with the land is necessarily a sale because, at least, it transfers land title as well as house from builder to buyer. But the transfer of “building title” is not a factor which defines a contract as sale rather than building contract since the house built under a building contract must also finally become the property of the landowner for whom it was built. Accordingly, transfer of title does not, in respect to the builder’s period of responsibility or warranty, adequately distinguish a builder’s sale of a house, built on his own land to sell, from the same builder’s building of a house, for another on the other’s land. Much less should one contractual arrangement result in a different prescriptive period: evidently the remedy of redhibition or quanti minoris (only available in sale) is prescribed by one year (which perhaps explains Hermeling, supra), but that should not be the only remedy available against a builder since the principle of C.C. art. 2762 is unavoidably applicable by extensive interpretation (see Geny, Method of Interpretation, La.Law Inst, trans., § 105).

C.C. 2762 establishes a five-year period for the builder’s responsibility for buildings of wood, for which the proper prescriptive period (as distinguished from the period of responsibility or warranty; see Orleans Par. Sch. Bd. v. Pittman Const. Co., 1972, 261 La. 665, 260 So.2d 661) is ten years; C.C. 3544.

SCHOTT, Judge,

dissenting.

The one year prescription period established by C.C. Arts. 2534 and 2546 applies and not the five year prescription period provided by Art. 2762. Hermeling v. Whit-more, 140 So.2d 257 (La.App. 1st Cir. 1961). However, I do not agree that the “discovery of the vice” in this case occurred only when Shilstone Testing Laboratory in August, 1974, diagnosed the cause of the defect. That a defect existed was clear to the purchasers in 1971 when the house was mildewing and the purchasers discovered that some of the weather boards had rotted. Surely, by August, 1973, when the mildew had reappeared to the extent that it was “blackish” and rotten boards had to be replaced they were aware of a defect.

To hold that the prescriptive period did not start to run until August, 1974, under these circumstances is inconsistent with the rationale behind Rey v. Cuccia, 298 So.2d 840 (La.1974). There the Court held that a purchaser need not prove the exact or underlying cause of a trailer’s malfunction in order to recover in an action for redhibition.

Thus, purchasers in this case were in a position to file their suit at least in August, 1973, if not in 1971, so that their action was commenced too late.

I respectfully dissent.

      . Appellee’s brief, p. 3.

      . For such consideration as a reviewing court may wish to allocate, we note our reluctance in following Hermeling, supra, insofar as it juris-prudentially distinguishes houses that are “built as a speculation” and, thereafter, placed on the market for sale by the builder and houses which are built in accordance with the owner’s “own plans and specifications.” We are reluctant to accept a thesis whereby a home purchaser who buys a so-called speculative house finds himself with far more limited rights than one who has a house‘built to his own plans. Articles 2756, et seq., and, particularly, article 2762 should, we think, also apply to homes that are constructed by a builder for subsequent sale to a home buyer, for, in our view, taking into account the changing times, the person or corporation who has completed the construction of a house and placed same on the market is equally, if not more properly defined primarily as a “builder” than as a “vendor.”
      Tract home construction, as we know it now, was not known to the redactors of our Code. However, in our view, they would have more likely considered such construction in that section of the Code entitled “OF CONSTRUCTING BUILDINGS ACCORDING TO PLOTS, AND OTHER WORKS BY THE JOB, AND OF FURNISHING MATERIALS” than under “OF THE VICES OF THE THING SOLD.” (Emphasis ours.)


text:
    Robert PECK v. ORLEANS LEVEE BOARD and Houston General Insurance Company.
    No. 8871.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.
    Writ Refused Feb. 24, 1978.

      Windhorst, Heisler, De Laup & Wysocki, Steven M. Koenig, New Orleans, for plaintiff-appellant.
    O’Keefe, O’Keefe & Berrigan, Arthur J. O’Keefe, New Orleans, for defendants-ap-pellees.
    Before REDMANN, SCHOTT and BEER, JJ.
   BEER, Judge.

This appeal results from a judgment of the trial court dismissing plaintiff’s compensation claim on the basis of one year prescription as provided by La. R.S. 23:1209.

Robert Peck filed suit on June 16, 1976, against his employer, the Orleans Levee Board, and its insurer, Houston General Insurance Company. He alleged an injury on Sunday, May 4, 1975, while in the course and scope of his employment as an Orleans Levee Board Police Officer. He further alleged that his injuries were not immediately disabling and did not become so until September, 1975.

By supplemental and amending petition filed August 11, 1976, he added the following allegations:

“Xlla.
After the accident which is complained of herein, the plaintiff was placed on light duty and was still paid his regular salary. The duties he performed were not com-mensúrate with the salary received and thus his salary was paid to him in lieu of compensation payments.
# * * * * *
That the light duties assigned to the plaintiff was that of looking out for the lifeguards at the lakefront. These duties were entirely different than his previous duties and he performed the light work throughout the summer of 1975.”

Defendant’s insurer filed a peremptory exception of prescription on the grounds that both the date of the accident and the date on which the injury developed and manifested itself were more than one year prior to the date of filing suit. At the hearing of the exception, testimony of Peck showed that prior to the accident, plaintiff was employed as a police officer in charge of a group of other policemen. His pay for performing this job was approximately $850.00 per month. When he returned to work, he was placed in charge of a group of lifeguards who, as employees of the Orleans Levee Board, were supervised and checked by the Orleans Levee Board Police. His duties included seeing that the lifeguards reported to work and periodically checking to see that they were at their stations and properly performing their duties. His pay for performing this job was the same, $850.00 per month, as he had received in his position as a police officer.

No evidence regarding the date upon which the disability manifested itself (as different or subsequent to the date of the alleged injury) was adduced at the hearing.

Peck now contends:

1. That the trial court failed to treat Peck’s continued compensation at the rate of $850.00 per month during the time he performed lighter duties as lifeguard supervisor as being partially a gratuity given in lieu of disability payments, which would result in the interruption of prescription,
2. That the trial court refused to allocate to defendant the burden of proving that plaintiff’s disability did not manifest itself until after June 16, 1975, and,
3. That the trial court erred in dismissing the suit against the Orleans Levee Board, which did not join in the exception of prescription filed by Houston General Insurance Company.

Heymann v. Dixie Leasing Corp., 250 So.2d 118, 120 (La.App. 4th Cir. 1971), provides that:

. . The basic test is whether the wages paid subsequent to the injury were actually earned. The mere fact that the duties before and after the accident were similar or dissimilar, heavier or lighter, is relevant but not determinative of the issue. And whether the wages were actually earned is determined by the facts and circumstances of each particular case.”

Patterson v. Methodist Hospital, 329 So.2d 203 (La.App. 4th Cir. 1976), writ denied, La., 332 So.2d 862, and Francis v. Kaiser Aluminum and Chemical Corp., 225 So.2d 756 (La.App. 4th Cir. 1969), are, we believe, applicable to the facts of this case.

There is no factual issue that, upon returning to work, Peck was assigned to full time duties which entailed some differing but also some similar responsibilities to those with which he was assigned previously.

Ledoux v. William T. Burton Co., Inc., 171 So.2d 795 (La.App. 3rd Cir. 1965), writ denied, 247 La. 715, 174 So.2d 130, and O’Quain v. Rockwood Insurance Company, 335 So.2d 85 (La.App. 3rd Cir. 1976), are also in point since there was no indication (and, thus, no ready inference) that a lifeguard supervisor performing the duties Peck performed after his return to work would earn less than he was paid to fulfill his supervisory responsibilities. Indeed, there is no evidence indicating that the rate of pay of a lifeguard supervisor is (or has been) different from that of a police officer nor, most importantly, that Peck did not earn his pay. Specifically, on this critical issue, the record shows that Peck performed his full duties as lifeguard supervisor and filled this position in the same manner as his predecessor.

Accordingly, we are of the view that there is support in the record for the trial judge’s factual determination to the effect that Peck’s wages were “actually earned” and were not, in any respect whatsoever, paid in lieu of compensation. Certainly, we cannot conclude that such a determination by the trial judge was manifestly erroneous.

We find no merit in appellant’s second and third allegations of error. The bare, totally unsupported contention that an injury occasioned on some particular date did not manifest itself until some later date is not a sufficient basis upon which to require the defendant to prove prescription when, on the face of the pleadings, prescription has taken its toll. See Gulling v. E. I. DuPont de Nemour and Company, 228 So.2d 750 (La.App. 4th Cir. 1969); Hall v. Kaiser Aluminum Company, 329 So.2d 251 (La.App. 4th Cir. 1976); and Drane v. City of New Orleans, 328 So.2d 752 (La.App. 4th Cir. 1976).

The prescriptive bar which applies to the claim against the insurer is applicable to the insured, defendant has, in this court, pleaded prescription against the insured employer, and judicial economy requires that we enforce same as to both parties.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is affirmed, at appellant’s costs.

AFFIRMED.