author: GLADNEY, Judge.-

text:
    David C. WILLIAMSON, Plaintiff-Appellee, v. C. P. STRANGE, d/b/a Strange Motor Company, Defendant-Appellant.
    No. 12780.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.

      Horton & Jones by Donald G. Horton, Coushatta, for defendant-appellant, Strange Motor Co.
    Gahagan & Gahagan by Russell E. Ga-hagan, Natchitoches, for plaintiff-appellee, David C. Williamson.
    Watson, Murchison, Crews & Arthur by R. Raymond Arthur, Natchitoches, for defendant-appellee, Ford Motor Co.
    Before HALL, GLADNEY and HEARD, JJ.
   GLADNEY, Judge.-

David C. Williamson filed this redhibito-ry action to void the sale of a new 1974 Ford pick-up truck which he purchased on October 18, 1973 from Strange Motor Company. Made defendants are C. P. Strange, d/b/a Strange Motor Company and Ford Motor Company.

Upon accepting delivery of the truck at defendant’s place of business, plaintiff drove his truck about 23 miles from Natchitoches to his home near Campti. He testified that on the trip the vehicle operated imperfectly in that it noticeably shook, shimmied, and made noises when the truck was driven at speeds between 30 and 35 miles per hour. This condition continued and six days after its purchase he returned the truck to the dealer for repair.

Unsuccessful efforts to remedy the trouble were made on five different occasions in the six months following purchase. Different tires were mounted, wheels were exchanged, the front end aligned, springs built up, inter alia, but the vibration continued unimproved. Peter Held, factory representative of Ford Motor Parts and Service Division, on two occasions tested and studied the trouble but his suggestions were not helpful.

On June 13, 1974 Williamson’s counsel made written demand on Strange to refund the purchase price and accept return of the truck. When there was no response to this demand this suit was filed.

Following trial, judgment was signed in favor of plaintiff against Strange awarding the sum of $1650 as a diminution of the sale price of the truck, which amount was inclusive of attorney’s fees. The decree dismissed the action against Ford Motor Company and the judgment has become final with respect to that party. Strange appealed and appellee Williamson answered the appeal praying that the judgment be modified so as to rescind the sale of the truck.

There is no dispute between the buyer and dealer as to the fact that the truck had a serious vibration which existed when the truck was purchased. There is no evidence in the record of bad faith or concealment of the vice by the dealer. The truck was new at the time of purchase and had not been driven. It was serviced and delivered to plaintiff without prior knowledge of the defect by either party. At the time of trial on February 3, 1975 plaintiff had possessed the vehicle since October 18, 1973 and it had been constantly operated and used by him. The truck had been driven some 42000 miles at the time of trial. The trial judge found that the defects were not such as to warrant rescinding the sale, and he ordered a reduction in the purchase price.

Redhibition is defined by Civil Code Article 2520 as the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed the buyer would not have purchased it had he known of the vice.

Although a plaintiff seeks rescission, if the evidence establishes only a diminished utility of the thing as opposed to its being useless and altogether unsuited to its purpose, the judge may decree merely a reduction in price. C.C. Art. 2543. Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App., 1st Cir. 1975). The circumstances of this case, especially the nature of the defect and continued usage of the automobile by the buyer, support the trial judge’s conclusion there was a diminished utility rather than a redhibitory defect, and that reduction in price, rather than rescission, was the proper remedy.

The distinction between remedies and the measure of quantum as it relates to the action for reduction was properly and succinctly noted in Bulkley v. Honold, 60 U.S. 390, 19 How. 390, 15 L.Ed. 663 (1856) wherein the court said:

“The law of Louisiana imposes on the seller the obligation of warranting the thing sold against its hidden defects. (Civ.Code, arts. 2,450, 2,451.) Hidden defects are those which could not be discovered by simple inspection. (Civ.Code, art. 2,497.). In case the vendee desires to rescind the contract by reason of the breach' of such warranty, he may do so by an action of redhibition. But he may also retain the thing sold, and have an action for reduction of the price by reason of the difference in value between the thing as warranted and as it was in fact. (Civ.Code, arts. 2,519, 2,520.). And in this action only such a part of the price as will indemnify the vendee for the difference between the value of the thing as warranted and the thing actually sold, together with the expenses incurred on the thing after deducting its fruits, can be recovered.”

See Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App., 4th Cir. 1974).

In the instant case, the buyer and seller, by agreeing upon the purchase price of the truck without knowledge of any defects set the value of the vehicle as warranted. It is also necessary, however, that plaintiff prove the price to which the actual sale price should be reduced to reflect the fair value at the time of sale if the defect had been known. Proof of that value may consist of expert testimony as to the value of an automobile with such defects, of evidence as to the costs expended to restore the thing to the condition warranted, or evidence of other facts bearing on the price to which informed parties would agree.

While we are convinced a reduction based on defects in plaintiff’s truck is warranted, upon review we conclude the trial court erred in establishing the amount of reduction and in awarding attorney’s fees. There is absolutely no evidence to support the award of a specific sum representing the decrease in value caused by the defects. Repairs were never successfully effected and the cost of repairs made was borne by defendant. There was no expert testimony as to the effect of imperfections on the reasonable value of the truck.

We conclude in order to do substantial justice, this case must be remanded to the district court for admission of any additional evidence which the parties may desire with regard to the reduced value of the truck with its existing defects. See LSA-C.C.P. Arts. 2082 and 2164, as construed by McKinney v. Levy, 212 So.2d 279 (La.App., 3d Cir. 1968) for the authority of this court to remand cases for additional evidence to prevent a miscarriage of justice. The trial court orally rendered judgment for plaintiff on Feb. 24, 1975, rescinding the sale of the truck and ordering the return of the purchase price. Motion for a new trial was made by defendant. Without taking further evidence, the February 24, 1975 judgment was modified to allow only a reduction. Formal judgment was signed on April 28, 1975. Under these circumstances a remand is required to do justice to the parties with respect to this issue.

To recover attorney’s fees the buyer must prove knowledge of the defect by the seller. C.C. Art. 2545. It is sufficient that the buyer prove actual or constructive knowledge by the seller. Juneau v. Bob McKinnon Chevrolet Company, 260 So.2d 919 (La.App., 4th Cir. 1972).

There is no contention by plaintiff that defendant had actual knowledge of the defects in the truck. An award of attorney’s fees, could, therefore, only rest on constructive knowledge of the defects by defendant. Such knowledge would be properly attributable to the seller if he knew or should have known of the defects at the time of sale. Even though the defects were discovered by plaintiff shortly after he took delivery of the vehicle, the evidence does not support a finding of constructive knowledge of imperfections by defendant. This was a new vehicle. It had not been driven before the sale. The defect was discoverable only when the truck was being driven and then only at particular speeds. No inspection of the vehicle while parked would have revealed the defects or indicated this possibility. There was no constructive knowledge of the imperfections since these could not be reasonably discovered by defendant in the exercise of ordinary care. Since defendant cannot be said to have had knowledge of the defects at the time of sale, the trial court erred in allowing plaintiff attorney’s fees.

For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. Assessment of costs is to await the outcome of further proceedings.

Reversed and remanded.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Robert Claude FERRINGTON et ux., Plaintiffs-Appellants, v. Cleavon R. McDANIEL et al., Defendants-Appellees.
    No. 12773.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writ Granted Feb. 11, 1976.
    Holloway, Baker, Culpepper & Brunson by D. G. Brunson, Jonesboro, for plaintiffs-appellants.
    Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for defendants-appellees.
    Before PRICE, GLADNEY and MARVIN, JJ.
   PRICE, Judge.

This is an appeal by plaintiff from an adverse judgment in a tort action arising out of a “trip and fall” incident in a retail grocery store.

Robert Claude Ferrington and his wife, Vergie Ferrington, brought this action against Cleavon R. McDaniel and Cleavon Reggie McDaniel, Jr., who operate a large grocery supermarket in Columbia, Louisiana, under the trade name “Mac’s Dixie Dandy.” Also joined as a defendant is the liability insurer of the premises, State Farm Fire and Casualty Company.

Plaintiffs contend Vergie Ferrington was injured on March S, 1974, when she tripped on a box while shopping in the McDaniels’ store and sustained various internal injuries, contusions, a knee sprain and severe back injury. Substantial damages are claimed for her personal injuries, loss of wages and related medical expense.

The resume of the facts and circumstances from which plaintiff’s injury stems as related by the trial judge in his reasons for judgment áre in accord with the evidence and are concisely stated as follows:

"... Plaintiffs, husband and wife, entered the defendant’s store on a routine shopping trip at about 11:00 A. M. After selecting various items needed for purchase the plaintiffs approached check out counter #1 situated near the main entry and exit to the store. Another customer was checking out and while waiting Mrs. Ferrington noticed she had overlooked one item and asked the checker to advise her where it was located. She was advised it was near check out stand #4, which was not in use at that time. Mrs. Ferrington then left her husband in the line and proceeded to walk alone down the aisle toward check out stand #4 to get the desired merchandise. The aisle was flat and level.
“Behind each check out stand was a large rack used to display candy and miscellaneous items. The racks faced the aisle used by the public and were situated on the back side of the cash registers. Merchandise was normally placed in these racks by the employees who operated the check out stands and were filled during slack hours when the checkers were not busy checking out customers. One of the checkers had spent most of the morning placing candy in the racks having started out with approximately 1 dozen cardboard boxes. Near 11:00 A. M., this particular employee prepared to go to lunch. She removed empty boxes and left 1 full box on the floor pushed against the rack at the edge of the aisle intending to empty this box after lunch. Some testimony introduced seems to indicate there were 2 boxes but the court feels there was probably only 1, a Hershey box. The full box was situated on the aisle side of check out stand #3. This checker who left it there apparently left the store before plaintiff’s fall.
“Check out stand #3 was situated between # 1 and #4. The aisle between the check out stands and card rack units and the large gondolas on which most merchandise was displayed was well lighted, wide, free of trash and loose debris, foreign objects and slippery substances. The box involved was not extremely large or extremely small. Witness have described it or them as being 71/2 to 10 inches in height each, by 10 to 12 inches in width by 18 to 20 inches in length. At most, it or they would have a combined height of 10 to 20 inches. Plaintiff testified the height was no more than 10 inches from the floor. As situated, the box or boxes did not present any peculiar or trap like hazard and it was not hidden from view. At the time of plaintiff’s fall the store was not crowded and the aisle where the fall occurred was not crowded. ■ No one obstructed plaintiff’s view of the box or jostled her as she approached it.
“Mrs. Ferrington walked from her husband’s side from the area of check out stand #1 toward check out stand #4. She was not running but walking swiftly and as she neared check out sand #4 she tripped over the box or boxes of candy in the aisle adjacent to stand-#3 and fell forward over the box or boxes flat onto the floor in the aisle. Her fall was heard by several but observed by only one other. An employee, a bystander and Mr. Ferrington assisted her up from the floor and from thence she and her husband left the store and proceeded to a nearby hospital where she received treatment. ...”

The trial judge concluded plaintiffs had not shown negligence on the part of the store owners in keeping the aisle in question reasonably safe for its customers and further found Mrs. Ferrington was negligent in not maintaining a proper lookout. Defendants’ plea of contributory negligence was therefore sustained.

On this appeal plaintiffs submit the trial court was in error in not finding “Mac’s Dixie Dandy” negligent in leaving the box in the customer aisle and in holding Mrs. Ferrington was guilty of contributory negligence.

Conceding that plaintiffs are correct in their position that the employee of “Mac’s Dixie Dandy” was negligent in leaving the box in the aisle, we shall discuss the issue of contributory negligence first as an af-firmance of this finding of the trial court would be dispositive of the question of liability.

The only person who saw the full sequence of events leading up to Mrs. Fer-rington’s fall was a salesman, Bobby Col-vin, who was assembling a flour display on the opposite side of the main aisle behind the check out counters. He apparently had an unobstructed view of Mrs. Ferrington and had noticed her when she left check out stand #1 to go to stand #4 to pick up an additional tobacco item she had forgotten. He testified the distance she walked from check stand #1 to the box where she fell was twenty feet and that the aisle was ten feet in width. He described Mrs. Fer-rington’s actions thusly:

“She left the shopping cart and proceeded down behind in front of the candy racks behind number one and number two and almost through the number three check out with her arms outstretched like this. The reason I was looking at this angle and watched her all the way down was the pace that she was moving and arms outstretched, like for instance, whatever she was going after was going to run away from her. And then she stumbled over the box and fell out into the aisle. I noticed when she, with arms, outstretched, when she fell in the aisle that she fell on her elbow. I went over to help her up. . . . ”

Colvin also testified the candy box was shoved against the bottom of the candy rack at check stand #3 and did not project into the aisle more than 16 to 20 inches.

Plaintiffs rely primarily on the expressions of the Supreme Court in Paxton v. Ballard, 289 So.2d 85 (La.1974), as absolving Mrs. Ferrington of contributory negligence. It is argued that the box in this case, because of its similarity in color to the floor, constituted a trap as did the protruding bottom shelf of the display rack involved in Paxton.

We find the instant case to be more analogous to the circumstances presented in the Supreme Court case of Williams v. Liberty Stores, 148 La. 450, 87 So. 233 (La. 1921), than to Paxton. In the Williams case the court found the plaintiff contribu-torily negligent under circumstances described as follows:

“It was negligence on the part of the defendant to leave the box in the aisle; and, had the accident happened while plaintiff was engaged in inspecting the wares and merchandise on either side of the aisles, the case would be different. It might have been supposed that she was engaged in inspecting the goods which she expected to purchase, and therefore did not see the obstruction on the floor.
“But plaintiff was not thus engaged at the time of the accident. According to her own statement, she was going in an opposite direction to the one she was supposed to be going; and she was going in a hurry. Her attention was not attracted by the goods on the shelves, and she carelessly traversed the full length of the aisle No. 2, some 27 feet, without seeing the box. She should and would have seen the box if she had exercised reasonable care and caution, located, as it was, on the floor at the other end of the aisle, and no person was in the store but herself and the cashier.”

In this case the photographs show the aisle through which Mrs. Ferrington was proceeding was spacious in width and uncluttered. It was described as well lighted and there were no other persons proceeding in the aisle at the time to have crowded her. Even though the box may have been of a similar color to the floor, it was also described as having a label of contents printed on its outside which should have rendered it distinguishable from the floor.

Mrs. Ferrington had completed her general shopping activity at the time of her fall and her attention was not being attracted to various merchandise on shelves which would have lessened the degree of care required of her under the prevailing jurisprudence. She was traversing a route of some 20 feet to pick up a single item at a location known to her. We are of the opinion that she would have seen the box under the circumstances presented had she used reasonable care and looked where she was proceeding.

We therefore find the trial judge properly sustained the plea of contributory negligence. In accord with the foregoing reasons the judgment is affirmed.


author: HALL, Judge.

text:
    Billy Clyde Washington OWENS, Plaintiff-Appellant, v. BIRD & SON, INC., et al., Defendants-Appellees.
    No. 12743.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Gordon, Fayard & Tyler by Rick Fa-yard, Shreveport, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King by Herschel E. Richard, Jr., Shreveport, for defendants-appellees Bird & Son, Inc. and Employers Ins. of Wausau.
    Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Shreveport, for defendant-appellee Aetna Life and Casualty.
    Before HALL, DENNIS and BURGESS, JJ.
   HALL, Judge.

Plaintiff, Billy Clyde W. Owens, appeals from an adverse judgment rejecting his demands against his employer, Bird & Son, Inc., and its insurer, Employers Insurance of Wausau, for workmen’s compensation benefits, and his demands against Aetna Life & Casualty Company for benefits under a group sickness and accident policy issued to the employer. We affirm the judgment of the district court.

The Facts

Plaintiff worked for .Bird & Son for eighteen years as a common laborer. For a number of years prior to the alleged accident he had some intermittent back pain for which he had seen the company doctor, Dr. Birdwell, on a couple of occasions. On those occasions the doctor diagnosed his problem as muscle strain and prescribed heat, sleeping on the floor, and the like. The last time plaintiff saw a doctor for this sort of problem was about three years prior to the alleged accident.

About the middle of January, 1974, plaintiff slipped and fell while climbing a ladder. He testified he immediately felt pain in his back and knee. He reported the incident to his foreman complaining only of having hit his knee and pain in the knee. He made no mention of any back pain to the foreman.

The foreman asked him if he wanted to go to a doctor and he did not want to at that time. He kept having some pain in the knee (and in the back according to plaintiff) and was given a form to fill out so that he could go see the company doctor. He took the form home and his wife filled it out (plaintiff is semiliterate), mentioning only the knee injury. Plaintiff went to see Dr. Rushing in March, about two months after the accident. He. complained to Dr. Rushing only of the injury to the knee which was bruised and swelling and the doctor examined and x-rayed only the knee. In February, plaintiff had also been to Dr. Rushing for flu-like complaints. Nothing was mentioned at that time about any back pain.

On April 6, plaintiff was fired because of repeated tardiness — being late for work more than eight times which was grounds for discharge under the union contract. The matter of his termination was arbitrated and the termination was upheld.

Plaintiff then applied for a job at Mid-Continent Steel and was sent to Dr. Nash on April 19. Dr. Nash’s x-rays revealed a reversed spondylolisthesis of L-5, S-l and some narrowing of the L-5 and S-l inter-space. Plaintiff told Dr. Nash he had some back pain off and on but had no specific history of an injury. He was turned down for employment at Mid-Continent because of Dr. Nash’s findings.

Plaintiff went to see Dr. Fox, an orthopedic specialist, on April 29 and again on July 1 and August 6. He told Dr. Fox he had hurt his back some eight or ten years ago, that he had trouble ever since and that it continued to bother him and got worse. He did not mention any specific accident. X-rays showed a marked narrowing of the lowest intervertebral disc space at L-5. The doctor testified it takes a number of years to wear a disc out like this. Dr. Fox testified that at the time he examined plaintiff he was disabled from heavy work which is about all he is qualified to do in the doctor’s opinion.

Plaintiff went to see Dr. Young, another orthopedic specialist, on October 25, 1974. Plaintiff told Dr. Young he injured his back at work in the middle of January, 1974, when he slipped at the top of a ladder. The doctor examined him, did a myel-ogram and performed surgery on January 24, 1975. He found a large bulging soft disc at L^l, L-5 and L-5, S-l and marked edema and erethism or irritation of the S-1 nerve root bilaterally of the right more than the left. The doctor pointed out this man had two discs — one of them was old and one of them was relatively fresh. One of them had been there a long time and was probably the basis for him being turned down for employment and the other had been there a shorter period of time.

The Issues

The issues are:

(1) For workmen’s compensation benefits, did plaintiff prove a causal connection between his back problem and the accident of January, 1974?

(2) For group insurance benefits, did plaintiff establish entitlement thereto under the terms of the policy ?

Workmen’s Compensation

In rejecting plaintiff’s demands, the trial judge did not specifically question the credibility of plaintiff but did emphasize the lack of corroboration and lack of reporting any back pain during the time in question and in not relating it to the January accident until he saw Dr. Young in October.

Plaintiff’s testimony about experiencing back pain at the time of the accident and more or less continuously thereafter is not corroborated in any respect, except by his subsequent proven back trouble and disability. The people he worked with said he never complained of pain in the back. He never mentioned any back pain to any of the doctors until he went to Dr. Fox after he had been turned down for employment by Dr. Nash. This was more than three months after the alleged accident. Even when plaintiff discussed occasional back pain with Dr. Fox, he did not mention or relate the pain to the January accident. He did not offer the testimony of his wife or anybody else that might have been able to verify back pain during the intervening period.

None of the doctors were directly asked and none testified that in their opinion plaintiff’s disc problem and disability was due to the accident of January, 1974. While leg pain can be a symptom of a disc disorder, there is no medical evidence linking the pain in plaintiff’s left knee to the subsequently diagnosed disc problems.

We agree with the trial court that plaintiff failed to prove a causal connection between the January accident and the subsequently diagnosed disc problems. Plaintiff continued to work without complaint of back pain for almost three months until he was terminated for repeated tardiness. It was not until after his disc pathology was pointed out to him by Dr. Nash and Dr. Fox that plaintiff began to experience significant symptoms of disc problems. It was not until he saw Dr. Young nine months after the accident that he related his subsequently developed back symptoms to the January accident. There was no medical testimony supporting a causal connection between the accident and the subsequent disabling back trouble. Plaintiff has not established his entitlement to workmen’s compensation benefits.

Sickness and Accident Insurance

Aetna’s group policy provides coverage for disability benefits for disability absence from work and medical expense benefits for expenses incurred by an employee of Bird & Son, Inc., arising out of a nonoccupational disease or injury, during employment. Plaintiff, alternatively to his demands for workmen’s compensation benefits, seeks recovery of medical expenses under the Aetna policy. '

The Aetna policy, by its terms, affords coverage to employees only during the period of their employment, subject to certain continuation provisions not applicable here. The policy specifically provides that all insurance of any employee under the policy shall terminate immediately when the employee’s employment with the participant employer terminates.

Plaintiff did not incur the medical expenses for which he seeks to recover prior to the termination of his employment. Although plaintiff undoubtedly had disc injury or disease prior to the termination of his employment, he was not disabled by reason thereof during his employment because he continued to work full time until terminated. Coverage under the policy did not extend beyond the termination of his employment and he is not entitled to benefits under the policy.

Decree

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

Affirmed.


text:
    Mary Ann WILLIAMS, Plaintiff-Appellant, v. YELLOW CAB COMPANY OF SHREVEPORT, INC. and Fidelity General Insurance Company, Defendants-Appellees.
    No. 12767.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    Donald R. Miller, Shreveport, for plaintiff-appellant.
    Pugh & Nelson by Robert G. Pugh, Shreveport, for defendant-appellee Yellow Cab Co. of Shreveport, Inc.
    Before PRICE, HALL and HEARD, JJ.
   HALL, Judge.

Plaintiff, Mary Ann Williams, sued defendants, Yellow Cab Company of Shreveport, Inc., and Fidelity General Insurance Company, seeking damages for personal injuries alleged to have been incurred by her while riding as a passenger in a taxicab owned by the defendant, Yellow Cab Company. Defendants denied the occurrence of the accident or that the accident, if it occurred, was caused by the negligence of the cab driver. Counsel for the insurance company withdrew because of the company’s insolvency and the trial proceeded against Yellow Cab Company. Judgment was rendered rejecting plaintiff’s demands, and plaintiff appealed. We affirm the judgment of the district court.

Plaintiff’s evidence consisted of her own testimony and that of her son, daughter and the doctor who treated her. The essence of plaintiff’s evidence is that on October 31, 1969, she was at her daughter’s house in Shreveport with her son and daughter. A cab was called to take plaintiff and her son, who was in the army and preparing to go overseas, to the army office downtown to pick up some money for the son’s plane ticket.

As the cab, identified as No. 91 by plaintiff, proceeded toward downtown, plaintiff was seated on the back seat on the right hand side. Her son was seated on the front seat on the right hand side. As the cab neared the intersection of Hope and Milam Streets (the testimony is unclear as to whether the cab was traveling on Hope or on Milam) the cab driver sped up in an attempt to pass under a caution light before it changed to red. As he did so, there were three young girls in about the middle of the street crossing into the path of the cab. The cab driver slammed on his brakes to prevent hitting the young girls, causing plaintiff to be thrown against the front seat of the cab and then onto the floor, resulting in injury to her left knee.

The cab driver asked plaintiff if she was hurt and she replied she was hut there was no further conversation concerning the incident. Plaintiff and her son proceeded downtown in the cab, tended to their business, and returned to the daughter’s house. Later that day at plaintiff’s request, the daughter took her to a doctor who could not see plaintiff. Plaintiff then went to Dr. Reddix, who had his office nearby. The testimony is confusing as to exactly when plaintiff saw Dr. Reddix but he testified from his notes that he saw her first on the day of the accident. The doctor testified she came into his office on crutches complaining of pain over her body and particularly in her left knee. The doctor found a displaced patella, torn ligaments and arthritis. Plaintiff told the doctor she had been hurt while riding in a taxicab. The doctor treated her on numerous occasions the next few months. At one point in January, 1970, he discharged her as clinically healed, and then in July, 1973, reported her as discharged with irreversible degenerative disease of the knee. Although the doctor testified the symptoms he observed when he saw her were consistent with the traumatic incident she described, his testimony as to the causal relationship between the accident and the more serious problems with her knee is inconclusive.

Defendants’ evidence consisted of the testimony of a cab driver and of the supervisor and personnel manager of the cab company. The driver testified that at the time of the alleged accident cab No. 91 was assigned to him. He did not remember plaintiff or her son, and did not remember the incident complained of. He was not certain that he was working on the day of the alleged incident. The supervisor testified that it was company policy that accidents be reported to the office and to the police, and that he had no record of this accident being reported.

In brief written reasons for judgment, the trial court summed up its findings by stating:

“Simply stated, we do not accept the evidence offered by plaintiff and, for this reason,.reject her demands.”

The thrust of plaintiff’s appeal is that her evidence as to the occurrence of the accident and resulting injury is basically uncontradicted and therefore should have been accepted by the trial court. Our review of the evidence leads us to the conclusion that the trial court was justified in rejecting plaintiff’s demands on the basis that the evidence is inconclusive, contradicted to some extent, and self-defeating to some extent.

Lending support to the trial court’s rejection of plaintiff’s evidence are: (1) inconsistencies in the details of the accident within plaintiff’s own testimony and as compared with the testimony of her son; (2) inconsistencies in the testimony as to whether plaintiff saw the doctor the same day as the accident or the next day; (3) inconsistency between plaintiff’s evidence that her daughter called the cab company to report the accident and the testimony of the company’s supervisor that he had no record of the call; (4) inconsistency between plaintiff’s evidence as to the occurrence of the accident in cab No. 91, and the testimony of the driver to whom cab No. 91 was assigned that he did not remember plaintiff, her son, or the occurrence of the incident; (5) testimony by the supervisor that the accident was not reported by the driver in accord with company policy; (6) plaintiff’s testimony that she completed the trip in the cab to her downtown destination without significant complaint about her injury and without discussion of any consequences of the accident; (7) uncertainty in the medical evidence as to the causal relationship of the alleged accident with plaintiff’s knee problems, particularly in view of a previous injury to plaintiff’s knee which required surgery and hospitalization; (8) lack of sufficient evidence as to the circumstances of the accident to support a finding of negligence on the part of the cab driver, particularly in view of plaintiff’s own testimony as to the sudden emergency which confronted the driver.

The evaluation by the trial court of the evidence bearing on the factual issues involved in this case, depending largely on the credibility of plaintiff’s witnesses, is entitled to great weight. We find no manifest error in the decision of the district court.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s cost.

Affirmed.


author: SCHOTT, Judge.

text:
    A. Russell ROBERTS v. John Peter CRISTINA, III, et al.
    No. 7110.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.
    Writ Refused March 12, 1976.
    John M. Coman, Jr., New Orleans, for defendants-appellants.
    William J. Dwyer, IV, and Roberts, Sanders & Perlis, Metairie (Sharon A. Perlis, Metairie), for plaintiff-appellee.
    Before SCHOTT, MORIAL and BEER, JJ-
   SCHOTT, Judge.

Defendants are the widow and two surviving children of John Peter Cristina, Jr. who died on June 7, 1971. They have appealed from a judgment in favor of plaintiff, an attorney at law, for $4,327.92.

On September 20, 1968, decedent had executed a statutory will which included the provision:

“I name and appoint Louis DeSonier, Jr., or his successor, as attorney for my executrix.”

On January 1, 1971, DeSonier became a District Judge of the 24th Judicial District Court for the Parish of Jefferson, and was unavailable to serve as attorney for the Succession of Cristina. Defendants employed another attorney to handle the succession, but plaintiff claimed a fee on the basis that he was Mr. DeSonier’s “successor,” and therefore entitled to handle the succession under the terms of decedent’s will.

Plaintiff’s evidence consisting of his own testimony and that of Judge DeSonier showed that they had engaged in the practice of law as partners under 'the name of DeSonier and Roberts for a number, of years before Judge DeSonier became a judge. Judge DeSonier then turned over to plaintiff all of his files and considered plaintiff as his successor in the practice of law.

Plaintiff admitted that his acquaintance with decedent was casual, that he knew decedent only as a client of DeSonier and that he met decedent for the first time on the day his will was confected, plaintiff serving as a witness on the will. After Judge DeSonier left the practice of law, the only contact plaintiff had with decedent was in connection with a single lawsuit which had been in progress before Judge DeSonier had left and in which plaintiff and his associates continued to represent decedent until his death.

Plaintiff maintains that his legal position is the same as the attorney in Rivet v. Battistella, 167 La. 766, 120 So. 289, in which the court held that the attorney designated in the will to settle decedent’s estate was entitled to a fee where he tendered his services to the widow and heirs but they declined his services, employing other attorneys to settle the estate. We are not persuaded that this case is controlling in plaintiff’s situation.

Plaintiff does not contend that when decedent used the phrase “or his successor” he then intended to designate plaintiff as the individual alternate attorney with De-Sonier. Nor would the facts support such a contention since plaintiff was present at the confection of the will serving as a witness and decedent could have easily designated plaintiff by name had this been his intention. Rather, plaintiff’s contention is that decedent intended to designate anyone who would be Judge DeSonier’s successor in the sense of the attorney who would take over the files and continue to handle matters and represent clients formerly served by DeSonier. The evidence does show that plaintiff was a successor in that sense.

In Succession of Zatarain, 138 So.2d 163 (La.App. 1st Cir. 1962), certiorari denied, the Court held that where an attorney was designated in a will, commenced the handling of the succession with the assistance of his partner and died while the succession was pending, the partner was not entitled to continue as attorney where the executor and heirs chose to employ another attorney. The Court reasoned that while the designated attorney enjoys an “irrevocable status” as agent for the testator and may not be discharged from the mandate conferred upon him, such mandate “does not bestow upon the agent authority which may be delegated or transmitted to a sub-agent.”

In the instant case plaintiff’s position is inconsistent with the rationale of Succession of Zatarain. Although Judge De-Sonier turned all of his files over to plaintiff when he left the practice and hoped that plaintiff would continue to handle pending cases and represent his former clients, at the time decedent executed his will in September, 1968, the question of who might become DeSonier’s successor in this sense depended entirely upon who might be practicing with DeSonier at the time, or upon whomever DeSonier might choose as his successor. As far as decedent was concerned, DeSonier could have terminated his partnership with plaintiff or plaintiff could have left the practice or even died, the designation of a successor was entirely up to DeSonier. Under the circumstances, plaintiff’s position is not unlike the successor attorney in the Succession of Zatarain.

We recognize that the distinction relied upon by plaintiff in that decedent specifically designated DeSonier “or his successor” unlike the designation in Zatarain, but Rivet v. Battistella speaks of the designation of an attorney as a gratuity and therefore in a sense it is a legacy. Since such legacy was left to DeSonier with the right to bestow the legacy on anyone he might choose as his successor it is prohibited under LSA-C.C. Art. 1573.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of defendants, Mrs. Emma Alice Gubert, widow of John Peter Cristina, Jr., John Peter Cristina, III, and Norbert Cristina, Jr., and against Plaintiff, A. Russell Roberts, dismissing his suit at his cost.

Reversed and rendered.

      . The widow and a son testified that the decedent told them after Judge DeSonier became a judge that he no longer had a lawyer.


author: STOULIG, Judge. SCHOTT, Judge

text:
    Succession of Antonina Z. CALDAS.
    No. 7084.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.
    Writ Refused March 5, 1976.
    Midió & Lehmann, Rene Lehmann, New Orleans, for Mrs. Lorraine D. Martinez, Testamentary Executrix of the Succession of Antonina Z. Caldas, appellant.
    Ungar, Dulitz, Jacobs & Manuel, Joseph E. Windmeyer, New Orleans, for John Joseph Caldas, Jr., intervenor-appellee.
    Before STOULIG, SCHOTT and MO-RIAL, JJ.
   STOULIG, Judge.

The issue before us is the validity of a notarial act of adoption between two majors executed in conformity with R.S. 9:-461, where the adoptee appeared through an agent.

Appellant, the executrix of the estate of Antonina Z. Caldas, resists payment of a legitime to John Joseph Caldas, Jr. (hereinafter referred to as Caldas, Jr.), as a forced heir of decedent because she contends his adoption was a nullity. Caldas, Jr., is one of two intervenors seeking their legitime from the Caldas estate as forced heirs after the last will and testament of Antonina Caldas was probated. It was learned testatrix bequeathed $5,000 to a special legatee and gave the residuum of her estate to her sister Marie Zuccarello, an interdict. The testament failed to provide to Caldas, Jr., and to a minor daughter of the late Joseph Caldas (her second adopted son) their legitime as adop-tees. From a judgment ordering the disposable portion reduced to satisfy both claims for legitime, the executrix has appealed only as to the judgment rendered in favor of Caldas, Jr.

The act of adoption, dated August 5, 1953, was signed by decedent as adopter; by Joseph Silva Caldas, as adoptee; and by John Joseph Caldas, Jr., as adoptee through an agent. The validity of the power of attorney, executed in Korea on July 26, 1953, is not at issue. Appellant cites the emphasized portion of R.S. 9:461 to support her contention the adoptee must personally sign the act for it to be valid:

“Any person above the age of twenty years may adopt any person over the age of seventeen years, according to the following conditions, limitations and procedure :
A. That the adoption shall be effected by the execution of a notarial act signed by the adoptive parent or parents and the person to be adopted, where the person to be adopted is a major * *

We do not construe this statute to mean the adopted person must sign personally. A research of the law and jurisprudence fails to reveal any authority for the proposition that the parties to an adoption cannot sign through a mandatary. C. C. art. 2987 sets forth the necessary elements for a valid mandate: (1) that it be lawful; and (2) that the power conferred is one that the principal has the right to exercise. R.S. 9:461 does not expressly negate the right to a party to consent to the act of adoption through a power of attorney. Therefore we hold that legislative silence on the use of procuration in notarial adoptions implies its approval.

Appellant argues an act of adoption creates a status that becomes irrevocable once the parties evidence their assent to it by signing the act. She further submits the ceremony is a formality that brings the status into fruition and the magnitude of the commitment formalized by the ceremony is such that no person should be permitted to designate an agent to appear on his behalf to assent to the new status. We disagree.

Like adoption, marriage also involves a change in status and the Civil Code expressly prohibits either one of the spouses from entering into this agreement through a mandate. By analogy we conclude that had the legislature deemed it unwise for an agent to act for one of the principals in a notarial adoption, it would have so stated.

Therefore, we conclude the adoption of Caldas, Jr., was valid and his right to a legitime as a forced. heir of Mrs. Caldas was one of the benefits he derived from his change in status as an adopted child of decedent.

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

Affirmed.

SCHOTT, J., dissents with written reasons.

SCHOTT, Judge

(dissenting).

The plain, unambiguous language of LSA-R.S. 9:461 prescribes that adoption between majors is accomplished by “execution of a notarial act signed by the adoptive parent . . . and the person to be adopted.” Although the act of adoption in this case was not signed by the adoptee the majority opinion concludes that the adoption was valid because there is no authority in the law or jurisprudence to the effect that parties to an adoption cannot sign through a mandatary. While there are no cases directly on point I believe'the jurisprudence and reason dictate the opposite result.

A leading case on adoption was Succession of Pizzati, 141 La. 645, 75 So. 498. The court there considered the validity of an adoption between majors by notarial act at a time when there was no statutory authority for such and the only statutory method for adoption was by judicial proceedings which the court found inapplicable to adoptions between majors. Confronted with Civil Code Art. 214 which then authorized adoption of majors but which made no provision for any form of proceedings for effecting such an adoption, the court concluded that the adoption was null because an adoption “can be effected only in some mode expressly provided by law . . . ” in reaching this conclusion other principles were established which are of paramount importance to our consideration of the problem before us. The Court said:

“Adoption is not a contract, and is not of natural law at all. The breath of the Legislature creates it out of nothing. It is wholly and entirely artificial; it is precisely and exactly what the Legislature makes it. The particular adoption which article 214 has reference to is declared by that article itself to have the effect of investing the adoptee with ‘all the rights of a legitimate child in the estate’ of the adoptant, except that it ‘shall not interfere with the rights of forced heirs.’ So that it makes an heir of a person who is not such; disturbs the order of succession except as forced heirs. Such being the case, the parties to it are not the sole parties in interest, but all the legal heirs who are to be displaced by it have an interest; and, as the matter involves the status of heirs, society itself has an interest. This status, once established, is entitled to recognition, or, in other words, to have full effect, in all countries where adoption is allowed. Succession of Caldwell, 114 La. 195, 38 South. 140, 108 Am.St.Rep. 341. It is not a thing of gradual growth, but springs into full, final, irrevocable existence the moment the ceremonial which is to bring it about has been gone through with, whatever that ceremonial may be.
“The legal status is a result of the adoption; it is not the adoption itself, for the adoption is the act, the outward manifestation or ceremonial, by which it is brought about. A statute which authorizes the result to be brought about, but does not provide the means of bringing that result about, or, in other words, authorizes adoption without providing the means of effecting it, is defective, and can have no operation. Such a statute is in the same condition as those constitutional provisions which, for the same reason of not having provided the means of being carried in effect, are held not to be self-operative.” (Emphasis added)

Several pertinent principles emerge from the foregoing: First, an adoption can be accomplished only in the manner provided by law. In Succession of Bush, 222 So.2d 642 (La.App. 4th Cir. 1969) and Succession of D’Asaro, 167 So.2d 391 (La.App. 4th Cir. 1964), this Court held that adoption is a creature of the law and unless statutory requirements are strictly carried out the act of adoption is an absolute nullity.

Second, adoption is not a mere contract between two persons but it is the imposition of a legal status on the parties by means of a “ceremonial” prescribed by the legislature.

Third, it is irrevocable. This feature of adoption was dramatically demonstrated in Succession of Thomson, 221 La. 791, 60 So.2d 411, where two majors entered into an adoption and less than two years later they signed a notarial act purporting to revoke the adoption, and the court held that the revocation was ineffective and that the parties could not abrogate by contract the relationship which existed between them as a result of the adoption.

The easy disposition of this case would be to hold that the strict construction of the statute eliminates the possibility of any of the parties signing the act of adoption through an agent, but perhaps this approach is overly simplistic.

In Succession of Pizzati the Court attached much significance to the “ceremonial” which the legislature had prescribed in order for an adoption to take place. The Court emphatically rejected the idea that an adoption is a matter of a contract between two persons by which they agree upon reciprocal rights and obligations. There it was said that the adoption is “the outward manifestation” by which the new legal status of the parties is brought about in much the same way as a marriage ceremony changes the status of the parties. The Court also distinguished adoption in that it is not something that gradually comes about but it “springs into full, final, irrevocable existence the moment the ceremonial” is conducted. When these things are considered it seems that adoption is a step more solemn and serious than any other which might be voluntarily undertaken by consenting majors. Marriage may be dissolved, a will may be revoked but an adoption can never be undone.

Consequently, the procedure undertaken by the adoptee here is necessarily repugnant to the statutory scheme for accomplishing an adoption. Because of the solemnness of the step it is essential that the consent of the two parties be simultaneously given in the presence of a notary. An opposite conclusion on this point leads to consequences which were certainly intended by the legislature to be avoided. When John Caldas signed the power of attorney authorizing an agent to sign the act of adoption he did not become the adopted child of decedent herein and at best his act of procuration constituted an intention to be adopted. When the decedent appeared before the notary with Caldas’ agent some ten days later there could be no expression from Caldas of his intention to be adopted at that time. What if he had changed his mind in the meantime? Does the majority opinion mean that his granting of a power of attorney ten days previously was clothed with the same irrevoca-bility as an act of adoption must be? If it means that such an adoption is binding so that the status of the parties is changed with attendant features, such as forced heirship and reciprocal duties and obligations of support, what if the party who gave the power of attorney were to return years later and declare that he had changed his mind between the time the power was given and the time thet act was signed by the agent? Should it follow that the same irrevocability should be attached to that adoption or should the party who gave the power of attorney be permitted to show that by the time the act of adoption was passed he no longer had the intention to take on the new status flowing from the adoption ?

In Hardy v. Mobley, 183 La. 668, 164 So. 621, the court in upholding an act of adoption, said the following:

“ . . . There were present all through these proceedings a union of action, a meeting of the minds, agreement in opinion, joint approbation, consent between this husband and wife concerning one common object, viz., the adoption of the child, Jesse Wood . . . ”

While this case was concerned with other statutes and the adoption of a minor child the determination that a concurrence be “present all through these proceedings” seems applicable to the instant case. Because it cannot necessarily be said that there was a simultaneous concurrence of the wills of the adopter and the adoptee in this case for each to assume the status flowing from the adoption, the underlying purpose of the legislature in requiring that a notarial act be signed by the adopter and the adoptee was not accomplished.

Accordingly, I believe that the judgment appealed from should be reversed and the act of adoption declared invalid.

I respectfully dissent.

      . Elizabeth D. Caldas, appearing through her natural tutrix, claims a legitime as the representative of her predeceased father, Joseph Caldas, an adopted heir of Antonina Caldas.

      . Nor does appellant dispute that the mandate is sufficiently expressed and special (as required by C.C. art. 2997) for the nonadministrative act of evidencing the principal’s consent to the act of adoption by affixing his signature thereto.

      . Succession of Thomson, 221 La. 791, 60 So.2d 411 (1952).

      . Succession of Piezati, 141 La. 645, 75 So. 498 (1917).

      . C.C. art. 109.


author: SAMUEL, Chief Judge.

text:
    Venance P. LAMBERT, d/b/a V. P. Lambert & Company v. Christian C. BRUCKER and Mrs. Emma S. Brucker.
    No. 7378.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Satterlee & Mestayer, Kent Satterlee, Jr., and Robert J. A. Williams, New Orleans, for plaintiff-appellant.
    McGinity & McGinity, Richard J. Mc-Ginity, New Orleans, for defendants-appel-lees.
    Before SAMUEL, C. J., and BOUTALL and SCHOTT, JJ.
   ON MOTION TO DISMISS

SAMUEL, Chief Judge.

Plaintiff, a licensed realtor, instituted this suit against defendant property owners for a real estate commission allegedly due under two “exclusive right to sell” contracts.

The petition alleges: The contracts, each dated November 20, 1972, were to remain in full force and effect for a period of one month. One contract authorized a sale for $175,000, not including movables and equipment, and the other authorized a sale for $200,000, including movables and equipment. The contracts were renewed monthly through April 20, 1973 by payment each month of a $400 promissory note by plaintiff to the defendants. On April 20, 1973, the parties executed an agreement extending the contracts for an additional three months upon the payment of certain sums stipulated therein. The total consideration for all extensions amounted to $3,300.

The petition further alleges: On June 6, 1973 plaintiff obtained from Stevens & Associates, Inc. an option to purchase the property. The consideration for the option itself was $500 and it was exercisable through June 29, 1973 for the sale price of $185,000. That option was accepted by Christian C. Brucker, one of the defendants. On or about June 6, 1973, subsequent to the execution and acceptance of the above mentioned option, the Orleans Levee Board notified the defendants of its intention to expropriate the property for the purpose of constructing a setback levee and borrow pit, a need precipitated by a threatened break in the levee in close proximity to the property, for the sum of $185,000. The suit seeks the real estate commission allegedly due.

To the petition the defendants filed exceptions of no cause or right of action and an answer wherein they denied: (1) plaintiff had paid any money for the renewals; (2) an option to purchase had been executed timely; ' and (3) any sale had been effected which would entitle plaintiff to a commission. In addition, defendants reconvened for $2,000 allegedly due under the promissory notes and for interest and attorney’s fees.

Following trial, judgment was rendered in favor of plaintiff in the sum of $1,518.-22. The judgment ordered defendants to • return the promissory notes and an outstanding check. The award consisted of $500 based upon quantum meruit, and $1,118.22 for the return of cash and notes given by plaintiff to acquire and extend the exclusive listing agreements. The re-conventional demand was dismissed.

The judgment was rendered on January 27, 1975 and on March 18, 1975 plaintiff issued a writ of fieri facias, resulting in the civil sheriff seizing certain other property belonging to defendants. It is conceded that after the seizure defendants paid plaintiff the full amount of the judgment. On April 9, 1975 plaintiff filed this appeal and subsequently defendants filed this motion to dismiss.

Defendants rely on Code of Civil Procedure Article 2085 which provides in pertinent part:

“An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.” (emphasis ours).

Defendants concede the judgment in the instant matter is in favor of the plaintiff-appellant. However, they contend the judgment is in his favor only to the extent that it is based upon quantum meruit (which plaintiff did not seek, even alternatively) and is against him in all other respects, particularly as to his claim for a commission based on contract. Thus, they assert, when plaintiff-appellant executed on the judgment based on quantum meruit he acquiesced in that judgment and abandoned his right to appeal from a claim based upon contract. We reject this theory.

Regardless of other considerations, the judgment here appealed from was not rendered against the plaintiff-appellant; it was rendered in his favor. Under these circumstances, the above quoted portion of Code of Civil Procedure Article 2085 is inapplicable. Our settled jurisprudence is that one in whose favor a judgment is rendered may accept the full amount thereof from the party cast, or even cause execution to issue on the judgment, without forfeiting his right of appeal because of acquiescence.

For the reasons assigned, the motion to dismiss the appeal is denied.

Motion to dismiss denied.

      . Glasper v. Wright Root Beer Co., La.App., 216 So.2d 586, and cases cited therein.


author: HEARD, Judge.

text:
    Edmund Bruce TOBIN, Defendant-in-Rule-Appellee, v. Sundena Carr TOBIN, Plaintiff-in-Rule-Appellant.
    No. 12754.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writ Refused Feb. 3, 1976.

      Booth, Lockard, Jack, Pleasant & Le-Sage by H. F. Sockrider, Jr., Shreveport, for plaintiff-in-rule-appellant.
    T. K. Giddens, Jr., Naff, Kennedy, Goodman, Stephens, Donovan & Parnell by Robert J. Donovan, Jr., Shreveport, for defendant-in-rule-appellee.
    Before HALL, MARVIN and HEARD, JJ.
   HEARD, Judge.

We are reviewing the judgment of the court below in a rule brought by a wife against her former husband and his mother, in which the wife sought an increase in child support payments from $50 per month to $160.54 per month. The trial court increased the husband’s child support obligation to $75 per month and rejected the wife’s demands against the husband’s mother. The wife appealed.

Plaintiff in rule, Sundena Carr Tobin, and defendant in rule, Edmund Bruce To-bin, were married in August of 1970 when she was 16 years old and he was 18 years old. In September of 1971, Sundena Tobin was granted a judgment of legal separation on the ground of abandonment, in which she was awarded custody of the only child of their marriage and $50 per month as child support.

In November of 1972, Edmund Tobin obtained a default judgment of divorce which maintained Sundena Tobin’s custody of the child and the award of $50 per month child support. The paternal grandmother, Helen Tobin, was not a party to any of these proceedings.

On February 10, 1975, Sundena Tobin caused a rule to issue ordering her ex-husband to show cause why child support payments should not be increased from $50 to $160.54 per month. The wife named the paternal grandmother as an additional party defendant and prayed that judgment increasing the amount of child support be entered against Edmund Tobin and against the paternal grandmother “individually, jointly, or solidarily, with the defendant, Edmund Bruce Tobin.”

The paternal grandmother timely filed the following exceptions: (1) dilatory exception of lack of procedural capacity on the ground that Sundena Tobin did not allege that she was the duly qualified natural tutrix of the child; (2) dilatory exception of improper cumulation of actions and improper joinder of parties on the grounds that the modification of the divorce decree relative to child support was not related to the obligation of the grandmother under Civil Code Article 229 and that the actions were not mutually consistent and had no community of interest; and (3) dilatory exception of nonjoinder of a necessary party in that the maternal grandparents were necessary parties to the proper disposition of the suit.

The paternal grandmother also filed a peremptory exception of no cause and no right of action on the ground that she could not be named as a party to the modification of the divorce decree since she was not a party in that proceeding, and that there was no allegation in the wife’s petition alleging that the husband and wife could not support their child.

The trial court overruled all of the exceptions to the wife’s suit, and the case proceeded to trial on the merits on February 17, 1975. After trial had commenced, it became apparent to the trial judge that the matter should be stayed pending the closing of the paternal grandfather’s succession due to the inability of the court to assess the husband’s or the grandmother’s ability to pay child support until the succession proceedings had developed further.

During the interim period, the paternal grandmother filed a third party demand against the maternal grandparents praying tha,t in the event judgment was rendered against her on Sundena Tobin’s demand, the grandmother have judgment over and against the maternal grandparents for any amount for which she might be cast in judgment.

Trial was resumed on May 19, 1975. The evidence adduced at the trial on the merits establishes that plaintiff in rule, Sundena Tobin, is 21 years old and has worked full time since she was 17 years old to support herself and her son. She is currently employed at Western Electric and has a net monthly income from her job of $455 per month. She calculated the total monthly living expenses for herself and her son to be $615.54.

Defendant in rule, Edmund Tobin, is 23 years old and was unemployed at time of trial. His employment history shows he was at one time a professional baseball player with a major league farm club and has worked at several unskilled labor jobs but he has never kept a job for more than a few months. His plans for the future are vague at best. He variously testified that he was going to try out for a professional baseball team again or go to college or get with a good apprenticeship program. He apparently shuns unskilled labor jobs because he feels such jobs are on a “poverty wage level.” He lives with his mother and is supported by her.

The paternal grandmother’s husband died on January 21, 1975. He owned a small insurance agency and the grandmother, Mrs. Helen Tobin, receives $450 to $500 per month from renewal premiums on policies her husband sold before his death. As a result of her husband’s death she also received $53,000 in insurance proceeds which she has placed in a savings account. She owns her home which was appraised at $26,400. Her son, Edmund Tobin, her daughter and her daughter’s son live with her and another son is in college at the University of Arkansas. She provides some support for all these persons.

On the basis of this evidence, the trial court awarded the plaintiff in rule an increase in child support payments to $75 per month against the husband, and rejected the wife’s demands against the paternal grandmother and the paternal grandmother’s third party demand against the maternal grandparents.

The wife appealed, alleging (1) that the trial court erred in failing to increase the child support obligation to $160 per month; (2) that the trial court erred in failing to cast the paternal grandmother in judgment for a portion of the child support; and (3) that the trial court erred in failing to consider the $53,000 in insurance proceeds when determining the paternal grandmother’s ability to pay.

The paternal grandmother answered the appeal, reurged the exceptions overruled by the trial court, and preserved her third party demand against the maternal grandparents in the event this court should cast her with a portion of the child support payments.

The first issue before the court concerns the quantum of child support awarded by the lower court. The trial court has a great deal of discretion in fixing the proper amount of support, and its decision carries great weight on appeal. While we feel an award of $75 per month may be on the low side in this particular case, we find the trial court did not abuse its discretion in awarding that amount.

The second issue concerns the alleged error of the trial court in not casting the paternal grandmother in judgment for a portion of the child support award. The basis for the grandmother’s liability for support is Civil Code Article 229, which provides:

“Children are bound to maintain their father and mother and other ascendants, who are in need; and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal.”

This obligation of ascendants to support their needy descendants is not the same as the obligation of parents to support their children imposed by Civil Code Article 227. Demarie v. Demarie, 295 So.2d 229 (La. App. 3d Cir. 1974). The obligation of a grandparent, or other ascendant, under C. C. Article 229 extends only to needy descendants and encompasses only the basic needs of food, shelter, and clothing. The obligation of parents to their children under C.C. Article 227 extends to more than these basic needs. The court in Fellows v. Fellows, 267 So.2d 572 (La.App. 3d Cir. 1972), in affirming an award of $2,000 per month child support for three children, stated:

“Under the provisions of LSA-CC Arts. 227, 230, and 231, the obligation to support, maintain, and educate minor children is contracted by the parents by the very act of marrying, and nourishment, lodging, support, and education are provided in proportion to the wants of those requiring and according to the circumstances of those who are to pay. Modern application of these basic rules recognizes that children are thus entitled by birthright to a life during their minority harmonious with the father’s station.”

The obligation under Article 227 also differs from that in Article 229 because the obligation in Article 227 is unilateral, whereas that of Article 229 is reciprocal.

The parental obligation in Article 227 does not prime the' obligation of ascendants in Article 229. However, before the grandparent can be cast in judgment for support under Article 229, it must be shown that the child is in need. In the instant case, considering the wife’s income and the husband’s payment of child support, we find there has been no showing the child is in “need” so as to warrant a judgment against the grandmother under Article 229.

Having found that the paternal grandmother is not liable for support payments under Article 229, we need not consider the alleged error of the trial court in not considering the $53,000 in insurance proceeds when assessing the grandmother’s ability to pay child support.

Likewise, having affirmed the trial court’s decision to reject the demand of plaintiff in rule against the paternal grandmother, we need not consider the exceptions to plaintiff’s rule reurged by the paternal grandmother on appeal.

The judgment of the trial court is affirmed and appellant is assessed with costs of this appeal.


text:
    Mrs. Joan Sara Spiro, wife of Beuker F. AMANN, Jr. v. SUCCESSION OF Mrs. Ruby Spiro, widow of Tobias PICK et al.
    No. 7125.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied. Jan. 13, 1976.
    Writ Refused March 5, 1976.

      Beuker F. Amann and Jackson P. Mc-Neely, New Orleans, for plaintiff-appellant.
    Lee C. Grevemberg, New Orleans, for defendants-appellees.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Asst. Atty. Gen., for ap-pellee (State of La. ex rel. William J. Guste, Jr., Atty. Gen.)
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of her suit to annul three tax sales dated January 6, 1936, confirming adjudications held on November 30, 1935, of 5 lots in New Orleans assessed in the name of her father for 1932 city taxes. Defendants are the heirs of the purchaser of the lots from the adjudicatee, Samuel Zemurray.

The State Tax Collector sold the lots pursuant to Act 1 of the Third Extraordinary Session of 1935, which provided as follows:

“Paragraph 4.
That hereafter, in addition to collecting the taxes levied by the State of Louisiana, and by the Board of Levee Commissioners of Orleans Levee District, on movable and immovable property, as provided by existing laws, the State Tax Collector for the City of New Orleans shall collect all of the taxes levied by the City of New Orleans and by the Orleans Parish School Board on movable and immovable property, viz:
1. The tax, not- exceeding 6}/¿ mills, for general municipal purposes, authorized by Section 15 of Act No. 4 of 1916.
2. The 1% (10-mill) debt tax, authorized by Act No. 110 of 1890.
3. The 2-mill special tax for sewer, water and drainage purposes, authorized by Act No. 6 of the Extra Session of 1899.
4. The special tax, not exceeding 3 mills, for the maintenance of a double platoon system in the fire department and a triple platoon system in the police department and for an increase in pay of the officers and men in said departments respectively, authorized by Section 25 of Article XIV of the Constitution, as amended by Act No. 260 of 1928.
5. Any other tax levied by the City of New Orleans upon movable and immovable property under any provision of the Constitution of laws of the State of Louisiana.
6. The tax, not exceeding 7 mills, levied annually by Orleans Parish School Board, authorized by Section 16 of Article XII of the Constitution, as amended by Act No. 264 of 1926.”

The act further provides for certain procedures and limitations to be followed by the State Tax Collector in the collection of delinquent taxes levied by the City and the Orleans Parish School Board, and in the sales of immovable property for such delinquent taxes.

Plaintiff asserts that this act was unconstitutional because it violated various constitutional provisions which placed the responsibility for the collection of delinquent taxes on officials other than the State Tax Collector for the City of New Orleans and because the Constitution did not authorize the legislature to designate the State Tax Collector to collect city taxes. She further asserts that the State Tax Collector’s lack of authority to sign the tax deeds places her in much the same legal position as the plaintiff in State ex rel. Hinton v. Justice, 248 So.2d 361 (La.App. 4th Cir. 1971) in which this Court held that a tax deed was void because it was not signed by the tax collector or her deputy and that the five year peremptive provision contained in LSA-Const. Art. 10, § 11, did not give validity to such a deed.

In considering plaintiff’s argument we have examined the various constitutional provisions which authorized the levying of the taxes for which the sales were made.

LSA-Const. Art. 14, § 24, incorporated by reference the provisions of Art 4 of 1916 and Act 110 of 1890. Along with § 23, § 24 also implemented the provisions of Act 6 of 1899. Section 7 of Act 110 of 1890 provided that the City was to levy and collect the tax and in case of its failure to do so “the said Board of Liquidation shall itself, by proper resolution, have power to levy said tax, and to collect the same; and, in said levy and collection, to use any and all the machinery, rights, powers and authority established by the State for levy and collection of the State taxes ; ”. Act 6 of 1899 provided that the Board of Liquidation, City Debt, was to continue the functions set forth in Act 110 of 1890. Act 4 of 1916 implied that the authority of the Board of Liquidation as set forth in Act 110 of 1890 was maintained. Act 14, § 25 of the Constitution of 1921 authorized the City to levy a tax for maintenance of the fire and police departments of the City in addition to those taxes already being levied. Finally, Art. 12, § 16, provides for a School Board tax to be “collected in the manner and under the conditions and with the interest and penalties prescribed by law for City taxes.”

The focal point of plaintiff’s argument is on Act 110 of 1890 which is a part of LSA-Const. 14, § 24, in that the Board of Liquidation, City Debt, is authorized to collect taxes if the city fails to do so. It is argued that the legislature could not in the face of that constitutional provision authorize the State Tax Collector for the City of New Orleans to perform this function which the Constitution says is to be done by the Board of Liquidation, City Debt, if not by the City.

Aside from the fact that the constitutional provisions relied upon by plaintiff do not expressly designate any particular official of the City to carry out procedures required to collect delinquent City taxes, these constitutional provisions must be read in pari materia with other constitutional provisions on the subject:

“ . . . The sheriff, except in the Parish of Orleans, shall be ex-officio collector of State, parish and all other taxes, except municipal taxes, which, however, under legislative authority, he may also collect.” Art. 7, § 65.
“The Legislature may provide that all local, municipal and district taxes, shall be assessed and extended on the parish assessment roll and collected by the tax collector of the parish.” Art. 10, § 6.
“All provisions of this Constitution regulating the collection of State taxes and tax sales shall apply to parish, district, municipal, board and ward taxes.” Art. 10, § 14.
“There shall be one State Tax Collector for the City of New Orleans who shall be elected for the term of four years and shall receive a salary of Six Thousand Dollars ($6,000.00) per annum, payable monthly, the fees received from delinquent tax debtors and for tax research certificates shall be paid in the State Treasury. The Legislature shall appropriate such sum, not more than Seventy Thousand Dollars ($70,000.00) per an-num, as may be necessary, for the payment of clerical and other expenses of said Office. Art. 14, § 21.

It is clear that Art. 10, § 6 authorized the legislature to provide that the tax collector for the Parish of Orleans was to collect municipal and district taxes such as those for which the lots in the instant case were sold. It is equally clear that the tax collector of the Parish of Orleans was the State Tax Collector of the City of New Orleans.

While Art. 14, § 21, which established his office, did not outline his duties, when this is read in connection with Art. 7, § 65, it follows that he was to perform those duties which in all the other parishes were performed by the sheriff with respect to the collection of taxes. Thus, these provisions authorized the legislature to pass Act 1 of the Third Extraordinary Session of 1935.

Having concluded that the contested Act was not unconstitutional and that the validity of the tax sales cannot be questioned on this ground we pass to plaintiff’s other contention, which is that the tax sales were invalid because there was no proof that notices of delinquency were sent to the tax debtor as required by law and that the proces verbal was processed as required by law. An attack on these grounds is barred by the five-year peremption of Art. 10, § 11, of the Constitution. See Choate v. O’Brien, 163 So.2d 157 (La.App. 4th Cir. 1964) writ refused 246 La. 578, 165 So.2d 480, and the cases cited therein.

Accordingly, the judgment appealed from is affirmed.

Affirmed.


author: GULOTTA, Judge.

text:
    SHELL OIL COMPANY v. Milton A. KENNEDY.
    No. 7430.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Montgomery, Barnett, Brown & Read, Daniel Lund, Nathan T. Gisclair, Jr., New Orleans, for plaintiff-appellee.
    Band, Hopkins & Martin, David Band, Jr., New Orleans, for defendant-appellant.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   GULOTTA, Judge.

Shell Oil Company has filed a motion to dismiss that part of defendant’s appeal relating to alleged state anti-trust violations on the grounds that the appeal was untimely filed, and the matter is now res judicata. See LSA-R.S. 51:134.

Plaintiff filed suit for the balance owed by defendant, a service station franchise dealer, on a promissory note. In an Amended Answer and Reconventional Demand, Kennedy complains that plaintiff breached its contractual obligation to furnish technical guidance and management consulting services resulting in the business failure. Defendant seeks damages for the loss incurred. In a First Supplemental and Amending Petition in Reconvention, Kennedy alleges plaintiff conspired to control the price and quality of petroleum products in violation of the state anti-trust laws relating to restraint of trade and commerce. In this demand, defendant seeks also damages and ouster of the plaintiff corporation from the state and liquidation of its affairs in accordance with LSA-R.S. 51:121 et seq. and particularly, LSA-R.S. 51:137 and LSA-R.S. 51:139. In a subsequent supplemental and amended petition in reconvention (labeled by defendant “Fourth Supplemental and Amending Petition in Recon-vention”), defendant alleges a violation of the Federal anti-trust laws.

Based on a release entered into between Shell Oil and Kennedy, the trial judge rendered judgment on March 26, 1975, and a corrected judgment dated March 27, 1975 in which he maintained an exception of res judicata to all demands asserted in recon-vention and particularly the demands asserted in the original Reconventional Demand, the First Supplemental and Amended Reconventional Demand and the subsequent Supplemental and Amended Recon-ventional Demand. A Motion for New Trial was denied on April 22, 1975 and certification was made by the clerk that notice was sent to the attorneys for the parties on the same date. The Motion for Appeal was filed on June 1, 1975.

LSA-R.S. 51:134 provides that where state anti-trust violations are alleged and a judgment has been rendered on exceptions, the, party cast has five days from date of judgment to file an appeal. Otherwise, the judgment is res judicata. In the instant case, the appeal from the judgment dismissing, by exception, defendant’s recon-ventional demand based on state anti-trust violations was not timely filed. Accordingly, that part of the appeal relating to the claim of state anti-trust violations (as contained in the First Supplemental and Amending Petition in Reconvention) is dismissed. That part of the appeal from the judgment maintaining the exception of res judicata to the claims for damages for breach of contract (original Reconventional Demand) and for violation of Federal anti-trust statutes (the Second Supplemental and Amended Petition in Reconvention labeled “Fourth Supplemental and Amending Petition in Reconvention”) is not dismissed and remains viable. See LSA-C.C.P. art. 2087 relating to delay for taking a devolutive appeal. Accordingly, the motion to dismiss the appeal, insofar as the state anti-trust claim is concerned, is granted. In all other respects, the appeal remains in full force and effect.

Appeal dismissed in part.

      . LSA-R.S. 51:134 reads as follows:
      “§ 134. Exceptions to be filed in limine litis; answer; trial; preference
      “In all cases under this Part the defendant shall file all exceptions in limine litis, or if necessary in the alternative, after the usual delays, and any additional delays as the court may allow; however, a plea to the jurisdiction is not waived by other pleas or exceptions filed. The judge shall take up such exceptions in preference over all other business and shall decide all questions raised in the exceptions within ten days after submission, and his ruling shall have the effect of res judicata, unless the party cast shall appeal witMn five days. The appeal is returnable within ten days to the appellate court which shall hear and determine the case within forty days. If the exceptions are overruled by final judgment of the appellate court, the defendant shall file his answer covering all questions of controverted fact within fifteen days, and the case may be set for trial on the application of either party, which case the judge shall consider in preference over all other business.” (emphasis ours)


text:
    Bruce Wayne RAY, Plaintiff-Appellant, v. BIRD & SON, INC., et al., Defendants-Appellees.
    No. 12778.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.

      James B. O’Neill, Zwolle, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King, by Herschel E. Richard, Jr., Shreveport, for defendant-appellee-Bird & Son, Inc.
    Bodenheimer, Jones, Klotz & Simmons, by G. M. Bodenheimer, Jr., Shreveport, for defendants-appellees-Melton Truck Lines, Inc., Earl Martin, Nez and Louis W. Sanders.
    Before HALL, GLADNEY and HEARD, JJ.
   HALL, Judge.

This action for damages arises out of a collision between an automobile and a tractor-trailer unit. Plaintiff is Bruce Wayne Ray, driver of the automobile. Defendants are (1) Louis Sanders, driver of the tractor-trailer; (2) Earl Martinez, owner of the tractor; (3) Melton Truck Lines, Inc., owner of the trailer, and lessee of the tractor ; and (4) Bird & Son, Inc., from whose loading docks the tractor-trailer was proceeding at the time of the accident.

After trial on the merits, the district court, for reasons orally expressed from the bench at the conclusion of the trial, found the accident was caused by plaintiff’s negligence in driving while intoxicated and in failing to keep a' proper lookout and to keep his vehicle under proper control. Judgment was rendered rejecting plaintiff’s demands, and. plaintiff appealed. We affirm the judgment of the district court.

The testimony of plaintiff, defendant Sanders, the investigating state troopers, two eye witnesses, and Ray Heard, Supervisor of the Northwest Crime Laboratory in Shreveport and an accident reconstruction expert, establishes the following facts. The accident happened on Aero Drive in Shreveport on January 17, 1974, at about 9:00 o’clock p. m. Aero Drive is a two lane hard surface street running east and west between North Market Street to the east and Hearne Avenue extension to the west. At the scene of the accident, the Bird & Son roofing plant and loading docks are located on the north side of Aero Drive. At the scene of the accident, the street is straight and level.

After his low-boy or flat-bed trailer was loaded at the loading docks, Sanders drove his unit to the north edge of the street, stopped, and looked both ways for traffic on Aero Drive. He saw the headlights of plaintiff’s automobile traveling in a westerly direction on Aero Drive. Sanders estimated plaintiff’s position at that time as being close to the North Market Street intersection a distance of two-tenths of a mile to the east. Sanders thought he had ample time to pull out into Aero Drive and make a left turn. Sanders drove out onto Aero Drive, turned left, and proceeded about 50 feet with his tractor in its proper right-hand lane headed east and with the trailer angled across the street, completely blocking the west-bound lane in which plaintiff was traveling. At this point, plaintiff’s . automobile ran under and into the trailer, totally demolishing the automobile and resulting in serious injuries to plaintiff who was rendered unconscious by the impact.

Plaintiff testified he was traveling in the west-bound lane at between 30 and 40 miles per hour. The witness, Heard, based solely on examination of photographs of the vehicles taken at the accident scene, expressed the opinion plaintiff was going 35 miles per hour upon impact. The speed limit was 35 miles per hour. Plaintiff testified he saw the headlights of the truck pull out into the street and make the left-hand turn, but he thought it was an automobile and did not realize it was a tractor-trailer unit. He did not see the running lights on the side of the tractor-trailer which were on at the time. When he first saw the headlights pull out and make the left turn, he took his foot off the accelerator but then put his foot back on the accelerator until he realized that the trailer was blocking his lane of travel. At this point he made no effort to stop his automobile but slipped down under the steering wheel as the automobile went under the trailer. Plaintiff testified he was only two or three car lengths from the trailer when he first saw it. Under all the evidence, plaintiff must have been several hundred feet from the point of impact when the tractor-trailer first pulled out onto Aero Drive.

According to plaintiff’s own testimony, he got off from work about noon of the day of the accident and went to a lounge where he consumed eight to ten bottles of beer during the afternoon. He left the lounge, drove around, got something to eat, and went back to the lounge where he bought another bottle of beer. He drank half of this bottle, left the lounge taking the bottle with him, and proceeded down Aero Drive where the accident happened a few minutes later. Plaintiff testified he drank beer in similar quantities on a regular basis, that he did not think he was drunk, but conceded he was intoxicated or “feeling good.”

Blood was taken from plaintiff about one hour and forty minutes after the accident and was reported by the Northwest Crime Lab as having an alcoholic content of .09. Plaintiff’s witness, Heard, was of the opinion plaintiff’s blood alcohol content at the time of the accident would have been approximately .12, which is sufficient to significantly impair a driver’s perception and reaction abilities.

The two eye witnesses verified the fact that plaintiff was at least several hundred feet from the point of impact at the time the tractor-trailer unit pulled out onto Aero Drive and commenced its left turn. Plaintiff himself conceded that he could easily have stopped his automobile at the time he first noticed the headlights pull out into the street and make the left turn.

Pretermitting a discussion of the negligence, if any, of the driver of the tractor-trailer, it is manifest from the evidence, including particularly plaintiff’s own version of how the accident happened, that plaintiff’s negligence in driving while intoxicated, in failing to observe the trailer across the street, and in failing to bring his automobile to a stop, was at least a contributing legal cause, if not the sole legal cause, of the accident. Plaintiff is barred from recovery by his own negligence. The decision of the district court is eminently correct.

In addition to plaintiff’s primary specification of error on the issue of liability, plaintiff also specifies the district court erred in overruling plaintiff’s objection to the setting of the case for trial and motion for continuance and in denying plaintiff’s verbal motion to recuse made at the beginning of the trial.

Plaintiff’s objection to the setting for trial and motion for continuance was grounded on allegations that plaintiff’s attorney had insufficient time to engage an expert witness, had pressing family and personal matters to attend to, and that plaintiff was employed out of state and the trial setting would disrupt his employment. None of the alleged reasons are peremptory grounds for a continuance under LSA-C.C.P. Art. 1602. The trial court has a wide discretion in the granting or denying of a continuance. There is no showing that the trial court’s discretion was abused or that the plaintiff was prejudiced in any manner by the denial of the continuance. Plaintiff’s expert witness was present and testified. Trial was held approximately five months after the suit was filed, and approximately seventeen months after the date of the accident. There is no indication that any additional evidence would have been available to plaintiff at any later date.

At the commencement of the trial, plaintiff’s attorney verbally moved to recuse the trial judge because the judge had previously heard a traffic violation case against the tractor-trailer driver, arising out of this same accident. The motion for recusation was denied by the trial judge. Plaintiff urges the judge should have been recused under LSA-C.C.P. Art. 151, which provides that a judge may be- recused when he “has performed a judicial act in the cause in another court.”

LSA-C.C.P. Art. 154 provides that a party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recusation. No written motion was filed in this instance, and therefore the judge was not required to either recuse himself or refer the motion to another judge for a hearing. Additionally, the fact that the trial judge heard a traffic violation matter arising out of the- same accident does not constitute the performance of a judicial act “in the cause” in another court. The traffic violation matter is a separate and distinct “cause” from the civil damage suit. Plaintiff’s oral motion to recuse was properly-denied. See McNeill v. Continental Casualty Company, 244 So.2d 693 (La.App. 4th Cir. 1971).

For the reasons assigned, the judgment of the district court is affirmed at appellant’s cost.

Affirmed.