text:
    Harold KILBOURNE, Plaintiff-Appellee, v. Leonard ARMSTRONG, d/b/a Armstrong Texaco Service, Defendant-Appellant.
    No. 11494.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Andrew J. Bennett, Jr., Jimmie L. Moss, Baton Rouge, of counsel for plaintiff-appel-lee Harold Kilbourne.
    A. Clay Pierce, Jr., Baton Rouge, of counsel for defendant-appellant Leonard Armstrong doing business as Armstrong Texaco Service.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is a workmen’s compensation action (under the new provisions of R.S. 23:1221, as amended by Act 583 of 1975) involving the question of whether the plaintiff has a total permanent disability and whether the defendant discontinued compensation payments arbitrarily, capriciously, or without just cause, thereby entitling plaintiff to penalties and attorney’s fees.

Defendant appeals from a judgment awarding plaintiff benefits for total permanent disability, penalties and attorney’s fees. We amend as to permanent disability, the imposition of penalties as to future payments, and otherwise affirm.

The facts as to plaintiff’s employment, wages, the accident and injuries are not in dispute. He was employed by Leonard Armstrong, d/b/a Armstrong Texaco Service (defendant) as a filling station attendant — mechanic at a weekly wage of $150.00. On September 5, 1975, plaintiff was repairing a tire when it exploded, severely injuring his right wrist. His injuries were medically described as a comminuted fracture of both the radius and the ulna. Despite medical treatment, non-union of the fracture site still exists. His treating orthopedic specialist recommended amputation of the right hand at the wrist and the use of an artificial limb. Plaintiff declined. Any type of bone graft or total wrist replacement is impractical.

The evidence further reflects that plaintiff has no technical training and only a third grade education. He has not sought any other type of employment since the accident. For all practical purposes he is to be considered as a one-handed worker, for with the exception of the injured hand, he is otherwise healthy. He maintains some degree of stability of the right wrist only with the use of a leather cast which he must wear constantly.

Counsel for plaintiff argues that because of plaintiff’s limited education and training there are very few jobs for which he is suited, such as an attendant, watchman, edger, or those types of jobs which can be performed with only one hand. It is submitted that plaintiff will become a ward of the state if his disability is not determined to be total and permanent.

Counsel for defendant, on the other hand, argues that there are many tasks plaintiff can perform, albeit with one hand, and he is therefore capable of gainful employment and is not totally and permanently disabled under the new amendment.

This is only the second occasion in which we have had an opportunity to review and apply compensation benefits under the new act. In LeBlanc v. Commercial Union Assurance Co., 349 So.2d 1283 (1977), Judge Landry, speaking for another panel of this court, stated:

“Prior to the 1975 amendment, our Workmen’s Compensation Law LSA-R.S. 23:1221(1)(2) and (3) defined temporary total, permanent total and partial disability and fixed the benefits therefor as follows:
“ ‘(1) For injury producing temporary total disability to do work of any reasonable character, sixty-five per centum of wages during the period of disability, not beyond three hundred weeks.
“ ‘(2) For injury producing permanent total disability to do work of any reasonable character, sixty-five per centum of wages during the period of disability, not beyond four hundred weeks.
‘(3) For injury producing partial disability to do work of any reasonable character, sixty-five per centum of the difference between wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability, not beyond three hundred weeks.’
“As amended by Act 583 of 1975, the above mentioned statutory provisions now provide in pertinent part:
“ ‘(1) For injury producing temporary total disability of an employee to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
“ ‘(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
“ ‘(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on and after September 1, 1975, and on or before August 31, 1976.’ (Emphasis by the court.)
“It appears the 1975 amendment has made a significant change in the statutory definition of temporary total and permanent total disability. We find that amended Section 1221(1) and (2), above, define total disability, whether temporary or permanent, to mean disability to engage in any gainful occupation whether or not the same or one similar to that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee was fitted at the time of the injury, either by education, training or experience. We understand the definitions to mean that an employee is not totally disabled, either temporarily or permanently, unless he is disabled from performing any gainful work whatsoever. We so find because the amended statute employs the phrase ‘disability ... to engage in any gainful occupation for wages . ..’ We readily perceive problems in interpreting the present statutory definition of total disability. We find this a matter of no moment, however, insofar as concerns the case at hand because we find plaintiff in this instance was partially disabled for reasons hereinafter set forth.
“Section 1221(3), above, as amended in 1975, defines partial disability as partial disability to perform the duties in which the employee was customarily engaged when injured or duties of the same or similar character, nature or description for which he was fitted by education, training and experience. We interpret the definition of partial disability to mean that if an injured employee is unable to perform his usual or customary occupation, but can engage in some other gainful employment for which he is fitted by education, training or experience, he is only partially disabled.” (Emphasis added)
“It appears the amended statutory definition of partial disability is substantially the same as total disability, as the latter term was judicially interpreted prior to the 1975 amendment. Under prior jurisprudence, an employee was considered totally disabled when he could not perform work of the same or similar description in which he was engaged when injured, notwithstanding his ability to earn the same or higher wages in a different line of endeavor. Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695 (1952); Morgan v. American Bitumuls Co., 217 La. 968, 47 So.2d 739 (1950).”

A short comparison of the old and new statutes might be helpful. Both statutes refer to temporary total [R.S. 23:1221(1)], permanent total [R.S. 23:1221(2)], and partial disability [R.S. 23:1221(3)]. We are here concerned only with the latter two classifications. Under the prior statute a worker was deemed to be totally and permanently disabled when his injuries prevented him from performing work of a same or similar nature. Subsequent earnings by the worker were immaterial. Wright v. National Surety Corp., above. Now, under the new statute, for a worker to be permanently and totally disabled he must be unable to “engage in any gainful occupation for wages.” Subsequent wages are now material in that if he is able to engage in any type of gainful employment, not necessarily of the same or similar nature, and if his injuries are permanent, we now deem him to be partially disabled and his compensation is to be computed at sixty-five percent of the difference between his prior (higher) wages and his subsequent (lower) earnings not to exceed four hundred weeks.

We are not unmindful of the problems that may arise in the application of the present statutory definition of “partial disability” where the injured worker has not undertaken subsequent employment and the percentage difference between his prior and subsequent wages cannot be applied.

An injured worker’s failure to obtain subsequent employment may be based on sound medical reasons or, conversely, his arbitrary decision to continue to receive compensation benefits in lieu of gainful employment. This particular issue, when it arises, is one of fact to be determined by the trial judge. It suffices here to say that in the instant cause we do not find that the plaintiff’s failure to seek subsequent employment so as to reduce defendant’s liability is unreasonable. Future cases will have to determine the circumstances under which a claimant’s failure to seek gainful employment following an injury will militate against an employer’s-insurer’s obligation to pay the maximum weekly benefit. The present judgment, as any other judgment in a workmen’s compensation suit, may be reviewed and an appropriate modification made on application to the district court in accordance with R.S. 23:1331.

Accordingly, we do not find that the plaintiff is totally and permanently disabled within the intent of R.S. 23:1221(2) and hold that he is partially disabled within the intent of R.S. 23:1221(3).

We now turn to the question of penalties and attorney’s fees.

At the time the payments were discontinued, Armstrong had been informed by the plaintiff that he was still under a doctor’s care and had not been released to return to work. Defendant discontinued the payments because he believed plaintiff was able to return to work. He had seen plaintiff change the oil in ah automobile and had also seen plaintiff under an automobile with another man. In such a situation defendant should not have ceased payments without making further inquiry and getting a medical opinion. Adams v. Travelers Insurance Co., 345 So.2d 987 (La. App. 2d Cir. 1977); Barham v. Mathieu, 198 So.2d 145 (La.App. 1st Cir. 1967). Such inquiry would have shown that plaintiff was not engaged in physical labor under the car but was only instructing the other man and that plaintiff had indeed not been released to return to work or to such other employment.

The trial court determined that the discontinuance of payments was arbitrary and capricious. This is at least in part a factual determination and should not be disturbed unless manifestly erroneous. Stubbs v. Parish of East Baton Rouge, 343 So.2d 258 (La.App. 1st Cir. 1977). The determination here was certainly not manifestly erroneous.

The lower court awarded penalties and attorney’s fees based on both past and future payments. This is incorrect as to future payments. The intent of R.S. 23:1201.2 is to require the employer to pay penalties and attorney’s fees on overdue sums. Future payments are not overdue. If they are timely made, penalties and attorney’s fees cannot be added to them. See Costa v. Wembley Industries, Inc., 346 So.2d 282 (La.App. 4th Cir. 1977) and Dupre v. Sterling Plate Glass & Paint Co., Inc., 344 So.2d 1060 (La.App. 1st Cir. 1977) where penalties and attorney’s fees were awarded only on overdue payments.

For the above reasons, the judgment of the district court is amended to decree that plaintiff is entitled to workmen’s compensation benefits for partial disability [R.S. 23:1221(3)], subject to a credit in favor of defendant for compensation payments previously paid and for statutory penalties of twelve percent on all past due payments, together with attorney’s fees in accordance with the judgment of the district court. All costs in these proceedings are assessed against defendant.

AMENDED, AND AS AMENDED, AFFIRMED. ,


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Barbara DUNIGAN v. The ADMINISTRATION OF the DEPT. OF EMPLOYMENT SECURITY et al.
    No. 11499.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Gail M. Nelson, Baton Rouge, of counsel for plaintiff-appellant Barbara Dunigan.
    James A. McGraw, Baton Rouge, of counsel for defendant-appellee The Administration of the Department of Employment Security et al.
    Sharon E. May, Baton Rouge, of counsel for defendant-appellee Miller-Terrel Imports, Inc.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

Plaintiff Barbara Dunigan was employed, by Capital Porsche-Audi as office manager. The company was bought out in March, 1975, by McGuinnes Imports, at which time plaintiff was employed as a computer bookkeeper. In January, 1976, the company was taken over by Miller-Terrell, when plaintiff was still employed as bookkeeper and was helping with title work on the cars.

In February, 1976, plaintiff testified that she was moved “downstairs, like right in the shop, right between the shop and the parts department. I had to do my bookkeeping as well as answer the switchboard when the girl was out. I had to do more or less all of the jobs, wait on the customers. Then they changed it from computer bookkeeping, which I was hired for, which I was used to, which is really the only kind of bookkeeping I was trained for, to manual bookkeeping and I wasn’t hired as a manual bookkeeper.”

She further testified that she was unable to keep up with the work, and because she was not permitted to work overtime, had to take work home with her and not go to lunch in order to stay caught up. She stated that she had been promised a raise to $4.00 an hour by McGuinnes Imports, but was only given a raise to $3.40 per hour in November, 1975.

In April, 1976, plaintiff quit her job without giving notice, although she testified that she had complained about her working conditions. Thereafter she applied for unemployment benefits, giving the following reasons for having resigned:

“I felt that being demoted from Office Manager to Cashier-Bookkeeper simply because of a change in ownership was unfair, (within 1 year) My salary was cut by the new owners and I was expected to do more work for less money. “Since the first of the year our sick leave was discontinued.
“I have discussed pay for sick leave with Mr. Bell but with no success.
“I asked for a raise and they laughed at me. They said the company was not making money and they could not give raises. However, I was promised a raise when McGinnis & Terrell bought the company.”

Based on the above statement, and information received from Miller-Terrell Imports, Inc., Mrs. Dunigan was found disqualified for benefits. She appealed this finding, and was granted a hearing before an appeals referee, on August 3, 1976. Only Mrs. Dunigan appeared at the hearing, and her sworn testimony is the only competent evidence in the record. The facts as outlined above, and as found by the appeals referee are based on her testimony.

The appeals referee, after reciting the above facts, found that Mrs. Dunigan did not have good cause connected with her employment for quitting her job, and affirmed the agency determination of disqualification. After the decision of the appeals referee was affirmed by the Louisiana Board of Review, Mrs. Dunigan sought judicial review of her case. The district court rendered judgment upholding the decision of the Board of Review, and dismissed plaintiff’s suit. From that judgment, Mrs. Dunigan has appealed to this court.

In judicial review of these «cases, “the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive and the jurisdiction of the court shall be confined to questions of law.” R.S. 23:1634.

R.S. 23:1601(1) provides, in part:
“An individual shall be disqualified for benefits:
“(1) If the administrator finds that he has left his employment without good cause connected with his employment.

In McGinnis v. Moreau, 149 So.2d 188 (La.App. 3rd Cir. 1963) the court interpreted the above provision as follows:

“Under this statutory provision, mere dissatisfaction with working conditions does not constitute ‘good cause’ for quitting the' employment, unless the dissatisfaction is based upon discriminatory or unfair or arbitrary treatment or is based upon a substantial change in wages or working conditions from those in force at the time the claimant's employment in his position commenced, so as to render the work unsuitable to the claimant, considering the worker’s physical fitness, qualifications, earning ability, and the like.”

The findings of the appeals referee are as follows:

“From the evidence and facts presented, it is concluded that the claimant accepted her employment and the position offered; however, after working for the last employer when the company was bought out, for four months she became dissatisfied. The claimant has failed to substantiate that she had good cause in connection with her employment for leaving and, therefore, it is determined that the claimant left her job for a personal reason and without good cause connected with the employment.”

We find that the foregoing conclusion is supported by sufficient facts and is legally correct.

In this court and in the district court, the Administrator of the Department of Employment Security has argued that the claimant is eligible for benefits despite the adverse findings made by his own department.

His first argument is that the appeal referee, the Board of Review and the District Court all failed to consider the doctor’s certificate brought in by Mrs. Dunigan to the hearing before the referee. This document is not certified or sworn to in any way, and is not competent evidence. As pointed out above, only competent evidence can be considered in reviewing the record in this case.

His second argument is that the findings of the appeals referee are wrong factually and legally. Since the findings of the referee involve questions of weight and credibility of evidence, and since there is sufficient evidence to support his conclusions, we do not have the authority to disturb his factual conclusions. We find no errors of law.

The judgment appealed from is affirmed.

AFFIRMED.


text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY et al. v. Roosevelt THOMPSON et al.
    No. 11501.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    See also La.App., 347 So.2d 1196.

      A. Clay Pierce, Jr., Baton Rouge, of counsel for plaintiff-appellant Government Employees Ins. Co. et al.
    Michael 0. Hesse, Baton Rouge, of counsel for defendant-appellee Jimmie D. Thomas.
    A. Shelby Easterly, III, Baton Rouge, of counsel for defendant-appellee Clifford De-cuir.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

This is a suit for property damages and personal injuries brought by Government Employees Insurance Company, as subrogee of Frederick J. Prejean and Ola S. Prejean, and by Mr. and Mrs. Prejean, individually and as trustees for Government Employees Insurance Company, for property damages and personal injuries arising out of an automobile accident. The only defendants involved in the judgment were Jimmie D. Thomas and Clifford Decuir.

The accident happened at the intersection of Ardenwood Avenue, a four lane street running north and south, and Blackberry Street, which runs east and west. Arden-wood is the favored street at the intersection.

Jimmie D. Thomas was stopped in the inside southbound lane of Ardenwood, waiting for traffic to clear so that he might turn left into Blackberry. Traffic in the inside northbound lane of Ardenwood was backed up from a red light a block to the north through and to the south of the intersection with Blackberry.

Clifford Decuir, who was stopped in the northbound lane of traffic of Ardenwood, made room for Mr. Thomas to turn left, and signalled for him to turn. Mr. Thomas did so and as he crossed the outside northbound lane of Ardenwood was struck by a northbound vehicle operated by Mrs. Prejean. Neither driver saw the other until the accident happened.

Plaintiffs’ original suit, as amended, was against a number of parties, all of whom were voluntarily dismissed except Mr. Thomas and Mr. Decuir. Mr. Thomas’s answer places at issue the contributory negligence of Mrs. Prejean. Mr. Decuir denied liability and third partied Mrs. Prejean and Mr. Thomas. After trial on the merits, judgment was rendered in favor of plaintiffs and against Mr. Thomas as prayed for. Plaintiffs’ suit against Mr. Decuir was dismissed as were all incidental demands. From that judgment, plaintiffs have appealed, seeking judgment against Mr. De-cuir. Mr. Thomas answered the appeal asking that the judgment against him be reversed on the ground of Mrs. Prejean’s negligence.

Plaintiffs argue that Mr. Decuir was negligent in “leading Thomas to believe that he could safely make the turn when he could not and in encouraging Thomas to leave a position of safety to one of peril.” We cannot agree. Mr. Decuir’s signal was intended to give Mr. Thomas permission to pass in front of Mr. Decuir’s stopped truck. Mr. Thomas cannot be relieved thereby of his obligation to keep a proper lookout for oncoming traffic in other lanes of traffic. His misinterpretation of Mr. Decuir’s courteous gesture cannot serve to render Mr. Decuir guilty of negligence proximately causing the ensuing accident. See Howard v. Insurance Company of North America, 162 So.2d 165 (La.App. 3rd Cir. 1964).

In arguing Mrs. Prejean’s contributory negligence, Mr. Thomas relies on a certain line of cases holding that a motorist approaching an intersection at which traffic may attempt to cross through an adjacent lane of stationary traffic, must exercise extreme caution, citing Kerner v. Lumbermens Mutual Casualty Co., 172 So.2d 711 (La.App. 4th Cir. 1965). However, the Ker-ner case, and other similar cases decided by the Fourth Circuit Court of Appeal do not stand for the hard and fast rule argued by Mr. Thomas. As explained and modified in the later cases of Fagot v. Silbernagel, 278 So.2d 153 (La.App. 4th Cir. 1973) and United States Automobile Association v. Dusset, 292 So.2d 905 (La.App. 4th Cir. 1974), a driver in such circumstances is only required to exercise reasonable care.

In this case, the trial judge found that Mrs. Prejean was traveling on a favored street at a legal and reasonable rate of speed under the circumstances, and that there was no reason for her to anticipate Mr. Thomas’s reckless and illegal maneuver. We find no manifest error in his determination.

The judgment appealed from is affirmed. All costs of this appeal will be shared by plaintiffs and Mr. Thomas.

AFFIRMED.


author: ELLIS, Judge:

text:
    Audrey FINLEY v. DEPARTMENT OF CORRECTIONS, LOUISIANA TRAINING INSTITUTE.
    No. 11504.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      George L. Clauer, III, Baton Rouge, for appellant, Audrey Finley.
    Annette Seng, Baton Rouge, for appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

Audrey Finley was dismissed from her position as Cottage Parent II at Louisiana Training Institute, Baton Rouge, by letter from the appointing authority, the Louisiana Department of Corrections, dated December 13,1976. By letter of December 21, 1976, Mrs. Finley, through counsel, requested an appeal to the State Civil Service Commission. Summary disposition of the appeal was subsequently requested by the appointing authority on the grounds that Mrs. Finley was serving in her position pursuant to a one year job appointment, and was not a permanent classified employee, and therefore not entitled to an appeal to the Commission.

After a hearing, the Commission granted the request for summary disposition and dismissed Mrs. Finley’s appeal. From the order of dismissal, Mrs. Finley has appealed to this court.

According to Civil Service Rule 13.14, a request for summary disposition may be made at any time after an appeal is docketed. Among the grounds on which such a request can be made is that the appellant has no legal right to appeal. Such requests may be supported by admissions of fact and written argument or brief. The rules do not provide hearing of the request.

However, a hearing was held on February 2, 1977, at which time Mrs. Finley’s personnel record was received in evidence by the Commission.

The record reveals that Audrey Reese Finley was first hired as a Cottage Parent II on March 28,1973, on a “non-competitive job appointment” not to exceed six months, pursuant to Civil Service Regulation 8.14. On September 28, 1973, she received a six month extension of her job appointment under the same authority. On March 27, 1974, her job appointment was terminated.

On the next day, March 28, 1974, she received an emergency one month appointment, which was “needed due to Federal Court Order # 69-543”, pursuant to Civil Service Regulation 8.10.

On April 28, 1974, Mrs. Finley received a second six month non-competitive job appointment under Regulation 8.14, which was extended on October 28, 1974, for an additional six month period. On April 28, 1975, her job appointment was terminated, and she received another emergency appointment of one month.

On May 28, 1975, Mrs. Finley received a third six month non-competitive job appointment, and on November 28, 1975, a fourth such job appointment was made. On May 28, 1976, a one year job appointment was made, under which she was serving when she was discharged.

Mrs. Finley is contending that the series of job appointments under which she served in her position violated the Civil Service Rules, and that she is actually a permanent employee and entitled to an appeal. However, we do not believe that we can at this time make a definitive holding on the question of Mrs. Finley’s status. As we appreciate the case, the only question before us is whether considering the record presented, summary disposition, on the ground that Mrs. Finley is a temporary employee,' is appropriate.

Civil Service Rule 8.14 provides, in part, as follows:

“(b) Such appointments may be extended with the approval of the Director for additional periods not to exceed an aggregate total of one year.”

The Civil Service Commission found nothing in the constitution, or in their regulations, which prevented successive job appointments such as were made in this case, for an indefinite period of time. We cannot agree.

Such an appointment is obviously intended to be temporary and can be made only “when an employee is needed for temporary work or to substitute for” a classified employee. It does not appear that either of these circumstances exist in this case. Mrs. Finley held down her job for over there and one half years during which time she received regular step increases in pay, apparently based on length of service. If, indeed, special circumstances under which a job appointment can be made existed in this case, there is nothing in the record to so indicate.

We do not think that an appointing authority can make job appointments in violation of both the letter and spirit of the Civil Service Rules and thereby deprive its employees of rights which are given them by the Constitution of this State and by the Civil Service Rules.

We interpret Rule 8.14 to mean that no employee can continuously serve more than two years in the Civil Service in the same position under job appointments or extensions thereof. Thereafter such an employee must be considered a probationary employee. An employee who completes a six month probationary period is entitled to permanent status. Civil Service Rules 9.1 and 9.2.

We therefore hold that the record before us does not support the summary dismissal of Mrs. Finley’s appeal to the State Civil Service Commission.

The arguments advanced to the effect that the employment practices followed in Mrs. Finley’s case were necessitated by federal court orders and were done with her informed consent are based on matters de-hors the record, and can not be considered.

The order dismissing Mrs. Finley’s appeal is reversed, and the matter remanded to the Civil Service Commission for further proceedings in accordance with law. The appointing authority will pay all costs of this appeal for which it may be held liable under the law.

REVERSED AND REMANDED.


author: BLANCHE, Judge.

text:
    Willie SANDERSON v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE.
    No. 11506.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Richard C. Cadwallader, Baton Rouge, Don Johnson, Monroe, for appellant Willie Sanderson.
    Thomas W. McFerrin, Howard Elliott, Baton Rouge, for appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

This is an appeal by plaintiff-appellant from a final opinion rendered by the Louisiana Civil Service Commission in which appellant asks that his resignation from the Department of Public Safety be annulled or, alternatively, he be restored to his former position with the Louisiana Wildlife and Fisheries Commission.

A review of the record reveals that after appellant had served approximately eight years with the Louisiana Wildlife and Fisheries Commission, he made application to the Louisiana Department of Public Safety for a position as a Trooper. On November 26, 1974, the Louisiana Department of Public Safety sent appellant an “Inquiry of Availability” form stating that he was being considered for the position of Trooper with the type of appointment designated as “Probational.” On November 27, 1974, appellant signed an “Availability Statement” stating that he was available for the position immediately. On January 27, 1975, he signed a “Resignation and Exit-Interview Report,” and the form showed his resignation effective January 31, 1975, and under “Remarks” was typed the phrase “Transferring to State Police.” He commenced working with the Department of Public Safety on February 3,1975, and went to the Louisiana State Police Training Academy but due to alleged irregularity was asked to resign his position as Trooper with the Louisiana Department of Public Safety. This “Resignation and Exit-Interview Report” was signed on March 21,1975, by the appellant.

The appellant gives thirteen assignments of error by the Commission in this appeal, but a careful review of those enumerated convinces the Court that it should address itself to only two specific questions, both of which are factual in nature. The first question relates to appellant’s contention that he did not resign from the Department of Wildlife and Fisheries but merely transferred from that department to the State Police.

As a Wildlife Area Supervisor I, he was a classified, permanent civil service employee invested with all of the rights and privileges applicable to Louisiana State Civil Service employees under the provisions of Article 14, § 15 of the Louisiana Constitution of 1921 and Article 10 of the Louisiana Constitution of 1974. Assuming arguendo that we could reinstate appellant to his former position with the Wildlife and Fisheries Commission, they not having been made a party to these proceedings, we find that there is no merit to appellant’s contention that he transferred from this state agency instead of resigning therefrom. He executed a “Resignation and Exit-Interview Report” on leaving the Wildlife and Fisheries Commission and accepted “Probational Status” as a State Trooper, all on his own initiative. The forms providing for his resignation from one service and application for duty with another are clear and unambiguous. Thus, we find that when appellant resigned from the Department of Wildlife and Fisheries and his application to the State Police was accepted, he gave up his permanent status as a civil service employee in the Department of Wildlife and Fisheries and accepted probational status in the Division of State Police of the Department of Public Safety. If there was any misunderstanding vis-a-vis his transfer or resignation, we find it was one of his own making.

The next question is also factual in nature and relates to the circumstances surrounding appellant’s resignation from the State Police. Appellant had not obtained or acquired permanent tenure, and as a probationary employee of the Division of State Police, he had no right of appeal except on the basis of whether there was discrimination against him in connection with his resignation. Civil Service Rule 13:10(c). The Commission undertook to hear evidence on the basis of whether there was discrimination against him and limited the hearing solely to this question of fact.

A close scrutiny of the record does not convince this Court that the signature on the resignation form was obtained by fraud, mistake, duress or other vices of consent.

It is apparent from the record that appellant had a choice of resigning or facing the likelihood of dismissal. To elect resignation under these conditions is not uncommon in either the private or public sector of this country. There is strong argument by the appellant that he was coerced into signing the resignation form terminating his employment with the Louisiana Department of Public Safety. However, a careful review of the transcript indicates that the appellant under the circumstances was not coerced into signing the resignation but had a choice.

After what appears to this Court to be an ample hearing by the Civil Service Commission, the Commission unanimously found:

“The Commission found sufficient evidence to establish, and has been said heretofore, that appellant’s status in the Division of State Police was probationary and not permanent. It also found sufficient evidence to establish that appellant was given the free choice of resigning or requiring that the Division of State Police discharge him * * *. He was given the same treatment as two of his classmates. No discrimination has been found.” (Record, p. 39)

We believe that the Commission was correct in dismissing the appeal and its decision is hereby affirmed, at the cost of plaintiff-appellant.

AFFIRMED.


text:
    B & J BOATS, INC. v. Rodney WHITNEY d/b/a Rodney Well Service I.
    No. 11507.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      J. B. Willis, St. Martinville, for plaintiff and appellant.
    Edward T. Diaz and C. J. Cheramie, Golden Meadow, for defendant and appellee.
    Before BLANCHE, COVINGTON and CHAISSON, JJ.
   BLANCHE, Judge.

Plaintiff, B & J Boats, Inc., filed suit against defendant, Rodney Whitney d/b/a Rodney Well Service I, to obtain a money judgment against the defendant in the amount of $7,998.95. To plaintiff’s petition, the defendant filed a peremptory exception styled “Exception of No Cause or Right of Action” alleging that plaintiff was not personally liable for the obligation sued upon as he had never conducted business either personally nor under the name of “Rodney Whitney d/b/a Rodney Well Service I.”

A minute entry by the deputy clerk of court, made part of the record, shows that the matter came on for trial on February 23, 1977; that neither plaintiff nor his counsel was in court; that defendant and his attorney were present in court; that the defendant put on evidence in the form of testimony from Rodney Whitney and filed into evidence a document referred to as Exceptor No. 1. Said exhibit purports to be a copy of a certificate issued by Paul J. Hardy, Secretary of State, certifying that articles of incorporation of Rodney Well Service I, Inc., were recorded in his office on May 24,1976. The aforesaid copy of the said certificate was not certified as a true copy by the Secretary of State as a record in his office. The testimony of the defendant, Rodney Whitney, was not recorded.

From a judgment in favor of the defendant, sustaining his exception, the plaintiff has perfected this appeal.

The exception alleges that the defendant is not personally liable for the debt as he has never conducted business either personally or under the name of Rodney Whitney, d/b/a Rodney Well Service I. This is an affirmative defense which he is required to prove on a trial of the merits by a preponderance of the evidence. It may not be raised in limine by way of a peremptory exception of no right of action.

With regard to the exception of no right of action, this device may not be used to determine whether a particular defendant can stand in judgment in a particular case, i. e., whether the right or remedy can be exercised against that particular defendant. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). The exception of no right of action:

“ * * * relates primarily to whether the particular plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit, with the factual evidence admissible being restricted as to whether this particular plaintiff does or does not fall within the general class having legal interest to sue upon the cause of action asserted. * * * ” (Bielkiewicz v. Rudisill, 201 So.2d 136 [La.App. 3rd Cir. 1967])

Defendant’s use of the exception of no right of action was improper and, accordingly, the judgment of the trial court is reversed and the matter is remanded for further proceedings in accordance with law, at defendant’s costs.

REVERSED AND REMANDED.


author: LOTTINGER, Judge.

text:
    Gaylon E. CUTRER v. KENTWOOD MOTORS, INC., et al.
    No. 11509.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      David L. Dawson, Jr., Baton Rouge, for Gaylon Cutrer plaintiff-appellee.
    Ernest G. Drake, Jr., Ponchatoula, for Kentwood Motors, Inc. defendant-appellant.
    W. Arthur Abercrombie, Jr., Baton Rouge, for Ford Motor Co. third party defendant.
    Charles M. Reid, Amite, for Ford Motor Credit Co. third party co-defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an action in redhibition. The Trial Court rendered judgment in favor of the plaintiff, against both defendants, rescinding the sale, and rendering judgment in the amount of $2,904.67 (the purchase price) plus $1,300.00 in attorney fees. From this judgment both defendants have appealed.

The record points out that on December 14,1973, the plaintiff purchased a new pickup truck from the defendant. Immediately thereafter plaintiff started having oil consumption problems, i. e. a quart of oil was added every gas fillup. He was told that the rings had not yet seated. In May, 1974, with 3,462 miles, a ring job was performed to satisfy the customer, apparently solving the oil consumption problem.

In May of 1975 the transmission started slipping at 10,378 miles, and a repair job was done free of charge though the truck was out of warranty. Then in July of 1975, the truck being 18 months old with 13,024 miles, a burned rod bearing scored the crankshaft. The bearing was not receiving oil, and it was diagnosed that the hole through which the oil would flow was plugged. Defendant suggested that the hole was plugged with either dirt or love-bugs, and concluded that an air cleaner which had been installed by an independent mechanic during a tuneup in January of 1975 was bent so as to allow dirt and even lovebugs to enter the engine. The plaintiff suggested that the problem was caused by a defective crankshaft or that the bearings which were replaced during the first repair were too tight. During the final repair job done by the defendant’s mechanic, nothing was found in the hole nor was there any evidence of a defective air cleaner.

The defendant contends that the Trial Judge was in error in disbelieving this logical conclusion as to why oil did not get to the bearing, when the plaintiff did not rebut the evidence. The Trial Judge in his written reasons for judgment stated: “The Ford expert contends that the crank shaft problems were due to an oil hole being plugged by lovebugs, entering through the air filter. He contends that the filter somehow became damaged while under the control of Mr. Cutrer. The Court is unable to understand how the bugs could get from the air intake, through the carburetor, pass the pistons and the rings and then into the crank case to cause the oil stoppage. It is more logical that the problem was connected to the first repair of the motor when it only had 3,462 miles and required new rings.”

In order for plaintiff to maintain his action in redhibition he must prove: (1) that the pickup truck was useless for the purpose for which he bought it, (2) that a non-apparent defect rendering the truck useless existed at the time of the sale, and (3) that the seller was given a fair opportunity to repair the defect. LSA-C.C. arts. 2520, 2530 & 2531. Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir. 1976), Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 534 (La.App. 3rd Cir. 1976).

Firstly, the Trial Judge concluded that, “The truck, and especially the motor, was so defective and stayed in the shop so much that there is no doubt that Mr. Cutrer would not have purchased if he had known of the vices and defects it contained”.

Secondly, the purchaser is not burdened with the impossible task of proving the cause of every defect or difficulty he encounters with a complicated piece of machinery, and it is only sufficient that he merely show their existence. Harris v. Drexler Motor Company, Inc., 339 So.2d 1304 (La.App. 1st Cir. 1976). Proof that the defect existed at the time of the sale can be by either direct or circumstantial evidence giving rise to the reasonable inference that defects existed at the time of the sale, Moreno’s Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975), and the standard to determine the sufficiency of the evidence is “when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not”. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

The Trial Judge concluded that the problems of Mr. Cutrer’s truck was attributable to faulty parts used in the first repair relating to his primary complaint of excessive oil consumption, thus causing, ultimately, the final defect complained of.

Thirdly, the' truck was returned to Kent-wood Motors, Inc. for the purpose of giving the defendant the opportunity to execute the necessary repairs to alleviate the problem. This the defendant refused to do.

This Court is of the opinion that the factual conclusions arrived at by the Trial Judge are not manifestly erroneous. Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976) and Canter v. Koehring Co., 283 So.2d 716 (La.1973).

The plaintiff answered the appeal seeking an increase in attorney fees. Attorney fees were awarded in the Trial Court. We, therefore, award an additional sum of $650.00 for the defense of this appeal by plaintiff-appellee.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is amended to increase the attorney fees by $650.00 and as amended is affirmed. Defendants-appellants are to pay all costs of this appeal.

AMENDED AND AFFIRMED.


text:
    Leroy L. CASTILOW v. AMERICAN HOME ASSURANCE COMPANY.
    No. 11512.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      John N. Gallaspy, Bogalusa, for plaintiff.
    Charles M. Hughes, of Talley, Anthony, Hughes & Knight, Bogalusa, for defendant.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

This is an appeal from a trial court judgment denying plaintiff-appellant’s claim for monthly disability benefits under an accident and health insurance plan.

The plaintiff-appellant suffered severe back pains on November 13, 1973, thirteen days after the effective date of his income disability certificate. He asserted that the pain resulted from an accident which occurred while carrying a mail bag up some steps to an address at which he was making a delivery. He is claiming benefits for total disability.

The record shows that the plaintiff-appellant was issued a certificate styled as “Certificate of Mortgage Accident and Health Insurance” under a plan styled “Group Mortgage Accident and Health Policy” issued by the American Home Assurance Company, a foreign insurer, to the Standard Mortgage Corporation of New Orleans, Louisiana. The purported certificate was issued to provide benefits to pay the mortgage payments which the plaintiff-appellant had incurred as a result of a mortgage granted to the insured, Standard Mortgage Corporation.

The controversy on appeal centers around the “injury” provisions of the policy, as plaintiff-appellant does not and could not claim benefits under the “sickness” provisions of the policy since the evidence discloses that he had been under treatment for spondylolisthesis within twelve months of the effective date of the policy. The “injury” definition states:

“ ‘Injury’ wherever used in the policy means bodily injury caused by an accident occurring while the policy is in force as to the Insured Mortgagor whose injury is the basis of claim and resulting directly and independently of all other causes in loss covered by the policy.” (Certificate of Mortgage Accident and Health Insurance, Exhibit P-3, Record, p. 67 — Emphasis supplied)

The sole question is whether the injury of plaintiff was caused by an accident as defined in the policy.

The trial judge was not impressed that plaintiff suffered injury from an accident. In his Written Reasons he stated that there was no obvious occurrence of an accident. There was “no fall, no tripping, no slipping, no stumble” and that “the plaintiff must rely on the subjective evidence that he experienced pain when he turned and started up the steps.” The trial judge obviously did not accept plaintiff’s subjective evidence of an accident, all of which was within his prerogative as the trier of fact. Other evidence that the plaintiff’s back complaints were the symptoms of the disease spondylolisthesis serves to strengthen this conclusion.

Additionally, seven days after the accident purportedly occurred, plaintiff consulted a physician and made no complaint whatsoever of having pain in either his back or knee or of having suffered injury from an accident. A finding that there was no accident is amply supported by the record.

Nevertheless, the trial judge, assuming arguendo that plaintiff suffered injury from an accident, went on to distinguish the present case from the Supreme Court decision in Martin v. American Benefit Life Insurance Company, 294 So.2d 200 (La.1974), relied on herein by plaintiff. In the Martin case the plaintiff had a pre-existing arthritic condition and was injured in an automobile accident which resulted in his disability. In allowing recovery under a similar policy provision, the Supreme Court stated:

“The rule to be applied in such cases was stated to be that if there is a pre-ex-isting disorder or illness at the time an injury is received, recovery may be had if the injury is severe enough to have caused considerable damage and if the disease was not the proximate cause or principal cause of the disability. See also Thibodeaux v. Pacific Mutual Life Insurance Co., 237 La. 722, 112 So.2d 423 (1959), and the numerous authorities cited there.” (294 So.2d at 202)

Again, in commenting on the factual situation presented by the Martin case, the Court stated:

“In this case the arthritic condition was perhaps a potential source of trouble to this insured, but from this record it would not have brought about this disability at this time without the trauma suffered in the accident. On October 25 it was not a disease or defect within the terms of the policy, but merely a predisposing tendency. It would be different in a case where an ordinary act of everyday activity brought about a condition of disability because of an existing latent or dormant condition. No recovery would be allowed there. But here there was an accident, a catastrophe of unusual dimensions, an automobile collision in which the vehicle Martin was riding was totally destroyed and in which several persons were injured — Martin requiring an ambulance to bring him to the hospital. (294 So.2d at 203 — Emphasis supplied)

The trial judge then correctly distinguished the Martin case by stating:

“The above stated rule, when applied to the facts in this case, leads to a different conclusion. In the first place, the alleged injury does not meet the test of severity prescribed above. It was not an injury ‘severe enough to have caused considerable damage.’ From the medical testimony it appears almost certain that the alleged injury would have caused no damage of any consequence, except for the pre-existing disease.
“Secondly, the spondylolisthesis with which the plaintiff was afflicted was not a ‘dormant’ — ‘potential source of trouble to the insured’ or ‘merely a predisposing tendency.’ It was an active condition and a manifest source of trouble as recently as October 28-31, two days before the effective date of the certificate of insurance and two weeks before the alleged accident.
“Finally, this is a ‘different’ case situation such as the Supreme Court had in mind in Martin when it said, ‘where an ordinary act of everyday activity brought about a condition’ of alleged disability, ‘no recovery would be allowed.’ It was not such a major accident as that described in the Martin case. A person walking along with Mr. CASTILOW would not even have been aware of an accidental occurrence except by subjective complaint.” (Reasons for Judgment, Record, p. 362)

Finally, we concur with the trial judge when he observed:

“ * * * It is extremely doubtful that the alleged ‘accident’ as described by him, independently of other causes, resulted in the spinal condition described by his orthopedist * * * which required surgical intervention for a spinal fusion. * * * ” (Reasons for Judgment, Record, p. 363)

We affirm the judgment of the trial court, appellant to pay all costs of this appeal.

AFFIRMED.


author: COVINGTON, Judge:

text:
    David ST. PIERRE v. Charles GABEL et al.
    No. 11520.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Larry C. Becnel, Gramercy, J. Arthur Smith, III, Baton Rouge, of counsel for plaintiff-appellant David St. Pierre.
    W. Luther Wilson, Baton Rouge, of counsel for defendant & third party plaintiffs-appellants Charles Gabel, et al.
    Charles W. Franklin, Baton Rouge, of counsel for defendants & third party plaintiffs-appellees Rockwell International Corp. & Employers Mut. Ins. Co. of Wausau, Wisconsin.
    Don L. Broussard, Lafayette, of counsel for Travelers Ins. Co. appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge:

The plaintiff, David St. Pierre, brought this action for injuries sustained when an electric miter box saw fell on his right hand. At the time of the accident, the plaintiff was employed as a carpenter by R & M Corporation, a manufacturer of prefabricated and portable structures and buildings.

The plaintiff sued Charles Gabel, Ralph Riles and Eunice Riles, as executive officers of his employer, and their liability insurer, The Travelers Indemnity Company, as well as Rockwell International Corporation, the manufacturer of the saw, and its insurer, Employers Mutual Insurance Company of Wausau, Wisconsin. The executive officers and their insurer third-partied the manufacturer for indemnity and contribution, and Rockwell in turn third-partied the executive officers for contribution. Subsequently, The Travelers Insurance Company intervened for reimbursement of the workmen’s compensation benefits paid to the plaintiff.

On November 16,1973, St. Pierre, almost 22 years old, was using the electric miter box saw manufactured by defendant Rockwell, and owned by R & M, his employer, to cut and miter angles into moldings. The saw consists of a circular saw mounted on an arm. To engage the saw blade with the material being cut on the worktable, the operator pulls down the arm of the saw. When the operator releases the arm (or handle), the saw swings back to the upright, or out-of-use, position by means of a spring. Additionally, the saw can be pivoted over the worktable to change the angle of the cut. On this particular saw, the “brake” button, which is used to stop the spinning saw blade, was broken. The fact that the “brake” button was broken was known to the executive officers of R & M and to the plaintiff, St. Pierre. St. Pierre and other employees had used the saw earlier in the day. On this particular occasion, St. Pierre had cut a piece of molding. He released the handle of the saw, and the saw swung to its upright position. Then, while the blade was still spinning the saw fell on St. Pierre’s right hand, causing the injuries of which he complains in this suit.

The case was tried by jury, and the matter was presented on written interrogato-ríes. The jury concluded that the three executive officers of R & M were guilty of negligence proximately causing the plaintiff’s injuries. It further concluded that Rockwell was negligent, but that its negligence was not a proximate cause of the plaintiff’s injuries. Accordingly, it answered the interrogatories and rendered verdicts as follows: against Charles Gabel, Ralph Riles and Eunice Riles, and their insurer, Travelers Indemnity Company, in the sum of $193,000.00; in favor of Rockwell International Corporation, and its insurer, dismissing the plaintiff’s main demand; dismissing all third party demands. The workmen’s compensation reimbursement claim was stipulated. Judgment on the verdict was entered on April 27, 1976.

The plaintiff appealed devolutively from that part of the final judgment dismissing his claim against Rockwell and its insurer, Employers Mutual. Defendants Gabel, Mr. & Mrs. Riles, and The Travelers Indemnity Company appealed suspensively and devolu-tively from the judgment.

Subsequently, The Travelers Indemnity Company, for itself and its insureds, settled the plaintiff’s claim for $162,500.00, plus a waiver of all workmen’s compensation benefits, and took an assignment of the plaintiff’s rights against Rockwell.

Appellants argue that Rockwell, the manufacturer, negligently designed and manufactured the saw, and that it was Rockwell’s negligence alone which caused the injuries to St. Pierre; and, alternatively, that the concurrent negligence of the manufacturer and the executive officers of R & M combined to cause the injuries of St. Pierre, as a consequence of which Rockwell owes contribution. They contend that Rockwell improperly designed the spring mechanism which returns the saw to the out-of-use position and defectively manufactured the saw by using a spring easily susceptible to breaking. Appellants complain that the jury thus erred in finding that defendant Rockwell’s negligence was not a proximate cause of St. Pierre’s injury.

The manufacturer of a product is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the product, if the injury might have been reasonably anticipated. See Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971); Ashley v. Nissan Motor Corp. in U.S.A., 321 So.2d 868 (La.App. 1 Cir. 1975), writ denied, 323 So.2d 478 (La.1975).

However, a manufacturer can not be held liable for injuries caused by a defective product where the defect was created by an alteration which amounts to an intervening or superseding cause. Landry v. E. A. Caldwell, Inc., 280 So.2d 231 (La.App. 1 Cir. 1973); Annot. 41 A.L.R.3d 1253. It is clear that the jury found that a significant part of the Rockwell saw did not fail as a result of the negligence of the manufacturer, but failed due to the intervention of an independent cause, i. e., the use of improper replacement parts to repair the saw by the employer, through its executive officers or employees. See Frey v. Travelers Insurance Company, 271 So.2d 56 (La.App. 4 Cir. 1972), writ denied, 273 So.2d 840 (La.1973).

A jury verdict should be maintained unless the record reflects that its conclusions of fact are not supported by the evidence, or its application of law is clearly erroneous. See Perrin v. St. Paul Fire and Marine Insurance Company, 340 So.2d 421 (La.App. 4 Cir. 1976). The finding of the trier of fact, which has evidence before it furnishing a reasonable factual basis for its finding, based upon its reasonable evaluation of credibility will not be disturbed on appeal in the absence of manifest error. See Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The factual findings of the jury in determining the issue of proximate causation in the instant case are supported by credible evidence in the record. We have reviewed the evidence and under the particular facts and circumstances presented herein, we find no manifest error in the jury’s findings. See Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976).

There was evidence which if believed by the jury, as the verdict indicates it was, goes to show that the executive officers of R & M were negligent in maintaining and repairing the Rockwell saw, and that they had allowed another, non-stock, spring to be substituted for the manufacturer’s stock spring, and that a substitute screw was allowed to be used in place of the stock screw to retain the spring; that Ralph Riles, as President of R & M, had the overall responsibility of the manufacturing process, as well as other corporate functions, and that he was negligent in carrying out his duties with respect to the Rockwell saw; that Eunice Riles, though primarily an administrative officer, had certain supervisory duties over the shop operation, which duties with respect to the Rockwell saw were negligently performed; and that Charles Gabel, the shop foreman, was primarily in charge of the shop area and was directly responsible for maintaining the shop equipment in a safe operating condition and that he had negligently performed his duties, particularly with respect to the Rockwell saw. There was evidence that the “brake” button on this saw was broken, and had been broken for some time without any effort to repair it; yet, the saw was authorized by the executive officers to be continued in use. See Canter v. Koehring Company, supra.

There was also sufficient evidence to allow the jury to conclude that the substitute spring, rather than breaking, slipped off its retaining screw because a replacement screw, not designed for the saw, was used to attach the spring. Three witnesses, including Mr. Gabel, the shop foreman, testified that the spring on the Rockwell saw at the time of the accident was not the spring that came on the saw and was not a Rockwell stock model spring; and there was evidence of a substitution for the original retainer screw.

The jury also had the benefit of the testimony of the expert witnesses, Dr. Sabbag-hian and James Dover. Dr. Sabbaghian expressed the opinion that the Rockwell saw was defectively designed and that the spring broke, causing the accident; Mr. Dover expressed the opinion that the saw was properly designed, and that the accident was caused by improper repairing and maintenance of the saw.

Even though the expert witnesses’ testimony differed on the question of the cause of the accident, and in several other respects, it is largely a matter of fact for the jury to determine the most credible evidence, and a finding of fact in this regard will not be overturned unless manifest error appears in the record. Green v. State, Southwest Louisiana Charity Hospital, 309 So.2d 760 (La.App. 3 Cir. 1975), writ denied, 313 So.2d 601 (La.1975).

There was also some evidence that St. Pierre used the saw improperly; however, from its verdict, the jury either considered this not a proximate cause of the injury, or that the plaintiff had not been properly instructed by his employer in its use. There was evidence from which the jury could find that the plaintiff was not instructed in the proper use of the saw. The employer’s attitude toward safety, maintenance, repair and proper use of the shop equipment can be described as “hazardously indifferent”— to say the least, safety was not first.

Our duty on appellate review requires us to affirm unless the trier’s decision on the facts is not supported by the evidence, or the application of law is clearly erroneous, as we stated above. In reviewing the decision of the jury we are directed to follow the Canter guideline. See Ashley v. Nissan Motor Corp. in U.S.A., supra.

We find no manifest error; the credible evidence reasonably supports the jury’s verdict. For the reasons assigned, we affirm at the defendants-appellants’ costs.

AFFIRMED.

      . Defendant Rockwell was sued as “Rockwell Manufacturing Company” and plaintiff did not know the name of its insurer when suit was filed.

      . Counsel for The Travelers Indemnity Company and the executive officers was enrolled as counsel of record for appellant, David St. Pierre, to assert the claims of St. Pierre on appeal.


text:
    Donald Lawrence JONES v. Mary Louise Roberts JONES.
    No. 11524.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Gerard E. Kiefer, Baton Rouge, of counsel for plaintiff-appellee Donald Lawrence Jones.
    A. Clay Pierce, Baton Rouge, of counsel for defendant-appellant Mary Louise Roberts Jones.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge:

The former wife of Donald Lawrence Jones, Mary Louise Roberts Jones, now Dyson, has appealed the trial court’s judgment denying her an increase in child support. The trial judge, in his oral reasons for dismissing the wife’s rule, indicated that he found insufficient evidence of a change in circumstances to justify an increase in the amount of child support. We agree and affirm.

Prior to October 2,1976, the husband was paying $400.00 monthly for the support of three minor children pursuant to an order of the Family Court in Baton Rouge. The oldest child attained the age of 18 years on October 2, 1976; a few days prior thereto, Mr. Jones filed a rule, which was set for hearing on October 7, 1976, to decrease the amount of child support pro rata between the two remaining minor children from $400.00 to $266.66, or $133.33 per month per child, and the wife in the same proceeding, asked for an increase. Judgment was signed on this rule on October 13, 1976, reducing the amount of child support from $400.00 to $325.00, or $162.50 per month per child. At the same time, the trial judge dismissed the wife’s rule to increase the amount of child support. No appeal was taken from that judgment.

Subsequently, the wife brought another rule to increase child support, which was heard on January 20, 1977, and judgment was signed on March 17, 1977, dismissing the wife’s demands for increase in the child support payments and maintaining the pri- or order of child support in effect. It is the appeal from this judgment that is presently before this Court.

We find the rule to increase child support was properly denied. In child support matters, the party requesting an adjustment or modification of a prior award has the burden of proving a substantial change in the circumstances of one of the parties. Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4 Cir. 1975), writ denied, 310 So.2d 844 (La., 1975).

The change relied upon by the appellant wife is that Mr. Jones remarried and his present wife was working and earning income which should be considered in determining the amount of child support. In making his finding that there was no change in circumstances to justify an increase, the trial judge necessarily accepted the testimony of Mr. Jones and his present wife, Madeline Sue Jones, that the present Mrs. Jones was not working regularly at the time of the hearing, had previously resigned from her employment, and did not intend to resume working. No other change in circumstances was suggested. Thus, the evidence does not show that there was a substantial change in the circumstances of these parties which would justify a modification of the award of child support.

In fixing the amount of child support, the trial judge is vested with discretion; his judgment in this respect must be affirmed in the absence of manifest abuse. Cloud v. Cloud, 276 So.2d 389 (La.App. 2 Cir. 1973).

The record shows that there was no abuse of his discretion in this case; he properly refused to increase the award for child support.

For the reasons assigned, the judgment on the rule is affirmed at appellant’s costs.

AFFIRMED.


author: CHIASSON, Judge.

text:
    MACLAN SERVICES COMPANY, INC. v. LOUISIANA COMPANIES.
    No. 11535.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Robert M. Day, Baton Rouge, of counsel for plaintiff-appellant, Maclan Services Co.
    Kenneth Barnette, Baton Rouge, of counsel for defendant-appellee, Louisiana Companies.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is an appeal of- a judgment of the District Court in favor of Louisiana Companies, defendant-appellee, and against Ma-clan Services Company, Inc., plaintiff-appellant, dismissing the plaintiff’s demand at its cost.

The defendant had handled, as broker, the plaintiff’s insurance business for a number of years. During this time the plaintiff periodically received notices of cancellation of insurance policies for non-payment of premiums. After receiving each notice, the plaintiff would come in and pay the premium. The defendant would then send the plaintiff written notice that the cancellation had been rescinded.

On or about September 8,1975, the plaintiff received notice of cancellation for nonpayment of premiums of a policy covering one of its garbage trucks. The policy, written by American Southern Insurance Company (American), had been obtained for the plaintiff by the defendant.

After receiving the above notice of cancellation, Joseph Machost, the plaintiff’s president, called Robert Bogan, the defendant's vice-president, to discuss the cancellation and a return premium due on another policy. Machost testified that Bogan agreed to determine the cause of the delay in refunding the return premium due and whether this return premium could be applied to the premium owed American. Bo-gan testified that he did not agree to rescind the notice of cancellation and that the plaintiff did not arrange to pay the premiums due American. There was no further communication between the parties and the cancellation became effective on September 14, 1975.

On October 14, 1975, fire destroyed the truck which had been covered by the can-celled policy. Following the fire Machost called Bogan and told him of the fire. At that time Bogan told Machost that the policy on the truck had been cancelled in accordance with the notice of cancellation.

The plaintiff filed suit against American, as the alleged insurer of the truck, and Louisiana Companies, as the insurance broker, to recover damages for losses sustained as a result of the fire. American filed a motion for summary judgment, a hearing on the motion was held, and judgment was rendered dismissing the plaintiff’s suit as to American. A trial on the merits was held and judgment rendered dismissing the plaintiff’s suit as to Louisiana Companies.

The plaintiff has brought this appeal from the judgment dismissing its suit against Louisiana Companies contending that:

“The Trial Court erred in failing to find that defendant-appellee failed in its duty to appellant and in failing to find that appellant could reasonably believe that, in the specific instance, its insurance needs were met, in light (of) the length of the business relationship between the parties and the manner in which similar instances had always been handled in the past.”

The effectiveness of the notice cancelling the policy is not at issue in this appeal nor is the alleged coverage by American.

Under Article 3003 of the Civil Code, an insurance broker, as the agent of his client, is responsible not only for his unfaithfulness but also for his fault or neglect. Walker v. Fontenot, La.App., 329 So.2d 762 (1st Cir. 1976). At issue in this appeal is whether, based on their prior dealing and the telephone conversation of September 8, the defendant was under a duty to inform the plaintiff that the notice of cancellation was not rescinded and became effective on the date specified in the notice.

The evidence, the testimony of Bo-gan and Machost, established that in previous dealings a definite arrangement for payment of the premium would be made by the plaintiff before the defendant would agree to maintain the plaintiff’s insurance coverage. In addition, following payment, the defendant always sent the plaintiff written notice rescinding the cancellation. In the present case there was no arrangement for payment, no agreement to maintain the coverage, no payment of the premium, and no notice rescinding cancellation of the policy. There is nothing in the record that would indicate that the defendant was under a duty to inform the plaintiff that the cancellation had become effective. The plaintiff received notice that its policy would be cancelled on September 14, 1975, for non-payment of premiums. All the plaintiff did was call the defendant to discuss the cancellation, it did not take any steps to rescind this cancellation. Therefore, the plaintiff knew or should have known that its insurance coverage ended on September 14 and the defendant was under no duty to remind it of this fact.

For the above reasons, the judgment appealed is affirmed. Cost to be paid by plaintiff.

AFFIRMED.


text:
    William B. HOUSTON v. Beatrice Levins McCoy, wife of/and James E. McCOY.
    No. 11536.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    James R. Strain, Jr., Slidell, for plaintiff, appellant.
    Guy L. Deano, Jr., Covington, for defendants, appellees.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of Beatrice Levins McCoy and James E. McCoy, defendants-appellees, and against William B. Houston, plaintiff-appellant, dismissing the plaintiff’s suit at his cost.

On September 12,1975, the plaintiff filed suit to recover $7,917.80 plus interest and attorney’s fees, the amount alleged as due under the terms of a promissory note signed by the defendants. The defendants filed exceptions of No Cause or Right of Action, Vagueness and Lack of Procedural Capacity. Following a hearing, the District Court dismissed these exceptions. The defendants filed an answer and a reconventional demand seeking damages for embarrassment and attorney’s fees. A trial on the merits was held and judgment was rendered dismissing the plaintiff’s suit. While the written Reasons for Judgment provided by the District Court do state that the defendants failed to establish the damages sought in their reconventional demand and that their claim will be denied, the judgment signed does not dismiss the defendants’ reconven-tional demand.

The facts in this case were summarized by the District Court as follows:

“Counsel stipulated the following facts. Plaintiff’s wife, Myrtle Cugle Houston, acquired certain property before her marriage to plaintiff. After her marriage to plaintiff, Myrtle Cugle Houston sold this separate property to defendant, James E. McCoy. This property was sold for $12,-000.00, $3,000.00 paid in cash and the balance of $9,000.00 represented by a note for that amount dated April 14, 1965, made payable to the order of ‘MYSELF’ in equal monthly installments of $67.10 each, including interest. The note, endorsed by James E. McCoy, bore interest at the rate of 6V2% per annum and provided for the payment of 10% attorneys fees to enforce collection.
“Mrs. Myrtle Houston married plaintiff in 1963 or 1964. She died intestate on February 20, 1975. She had no descendants nor ascendants and was survived by three sisters, one brother, nieces and nephews. Defendant, Beatrice McCoy, is one of decedent’s sisters.
“Plaintiff claims ownership of the promissory note and seeks payment herein under Louisiana Revised Statute 10:3-301. He has not sought execution of the vendor’s lien and privilege securing this note. “Defendants claim that plaintiff is not the lawful owner or holder of this note. They allege this note was the separate property of Myrtle Houston at her death and as such it was inherited by her collateral relatives, Beatrice McCoy being one of them.
“Evidence shows that the payments on this note were up to date and received by Myrtle Houston until her death. Thereafter defendants made the monthly note payments into a special bank account opened in the name of ‘Estate of Myrtle C. Houston’.
“Testimony of plaintiff, his son and daughter-in-law shows that plaintiff’s wife became sick in 1966 and never fully recovered. She had a total of four heart attacks and was diabetic. She was in and out of hospitals and incurred large medical, hospital and drug bills. Plaintiff was working for the City of Slidell during this time making $100.00 per week income. They had to borrow money to meet their financial obligations.
“Approximately six months before her death, Myrtle Houston, having just come out of the hospital, gave plaintiff the promissory note in question saying she would like to help ‘straighten out’ the debts. Plaintiff, his son and daughter-in-law witnessed this donation. Their testimony was all substantially the same, that Myrtle Houston took the note in her hand and stated that she was giving this note to plaintiff to help pay their debts. She then replaced the note in its usual resting place in their house where it remained until filed in this suit.
“This court finds that Myrtle Houston desired to and did make a manual donation of this note to plaintiff. The question presented is whether this donation was valid.”

In determining that the donation was not valid the District Court said:

“During the marriage, a wife may donate to her husband in full ownership all that she might give to a stranger. Louisiana Revised Civil Code Article 1746 and Succession of Broussard, 306 So.2d 399 (La.App. 3rd Cir., 1975).
“A promissory note is an incorporeal movable. Louisiana Revised Civil Code Article 1536 and McLaughlin v. Knox, 224 So.2d 491 (La.App. 1st Cir., 1969). Article 1536 requires that every inter vivos donation of incorporeal things must be couched in an authentic act. Since the donation of this note to plaintiff was not made in an authentic act, the donation was not valid in form and must fall. McLaughlin v. Knox, supra.
“Plaintiff claims that this note is a bearer instrument, and as such is transferrable by mere delivery, he cites several cases in his brief to support this contention. This court feels these cases cited by plaintiff do not apply here. These cases deal with the requirement of authentic evidence in foreclosures by executory process.
“Since the gift of this note to plaintiff is invalid as a donation, the next question presented is whether or not this transfer can qualify as a remunerative donation. If this donation is remunerative, it is not subject to the rules which apply to donations except when the value of the object given exceeds by one-half that of the charges or services. Louisiana Revised Civil Code Article 1526.
“There is some question in the court’s mind as to whether the services rendered by plaintiff to his deceased wife and the debts of the community resulting from the donor’s ill health are supportive of a remunerative donation. However, the court is going to pretermit this question, since it feels that the evidence shows that the value of the note far exceeds by one-half the value of any services rendered or debt incurred.
“The burden of proof is on the defendants attacking the validity of a remunerative donation to show that the value of the donation exceeds by one-half the value of the services or debts incurred. Fenger v. Cagnolatti, 292 So.2d 901 (La.App. 4th Cir., 1974) and Placid Oil Co. v. Frazier, 126 So.2d 800 (La.App. 2nd Cir., 1961). Testimony produced at the trial of this matter satisfies this burden of proof. These medical expenses were community debts with exception of the last illness debts. Plaintiff testified that all of the hospital and doctor bills were paid by either Blue Cross or Medicare. He testified that ‘very little’ was left over or unpaid. Mrs. Beatrice McCoy testified that she made one payment of $500.00 toward Dr. Howard’s bill and gave plaintiff’s wife another $500.00 to be paid to Dr. Howard although she could not testify that she knew without a doubt that this second $500.00 was actually paid to Dr. Howard.
“The court feels that this testimony carried defendants’ burden of proving that the value of the note exceeded by much more than one-half the value of the charges or debts. It is very understandable in light of plaintiff’s small income that he would be forced to borrow money to pay any debts, no matter how small, outside of normal living expenses. Plaintiff offered no particular figures in rebuttal to establish the value of this alleged debt.
“The final question presented is whether a natural obligation existed such as would support a donation. Louisiana Revised Civil Code Article 1757 defines a natural obligation as follows:
‘Art. 1757. Obligations are of three kinds: imperfect obligations, natural obligations, and civil or perfect obligations.
2. A natural obligation is one which can not be enforced by action, but which is binding on the party who makes it, in conscience and according to natural justice. . . .’
“There are four kinds of natural obligations, Louisiana Revised Civil Code Article 1758 states:
‘Art. 1758. Natural obligations are of four kinds:
1. Such obligations as the law rendered invalid for the want of certain forms or for some reason of general policy, but which are not in themselves immoral or unjust.
2. Such as are made by persons having the discretion necessary to enable them to contract, but who are yet rendered incapable of doing so by some provision of law.
3. When the action is barred by prescription, a natural obligation still subsists, although the civil obligation is extinguished.
4. There is also a natural obligation on those who inherit an estate, either under a will or by legal inheritance, to execute the donations or other dispositions which the former owner had made, but which are defective for want of form only.’
“The court, in Breaux v. Breaux, 218 La. 795, 51 So.2d 73 (1951) held that Article 1758 gives an exclusive list of kinds of natural obligations. See also Succession of Miller v. Manhattan Life Ins. Co., 110 La. 652, 34 So. 723 (1903) and Succession of Burns, 199 La. 1081, 7 So.2d 359 (1942). Therefore, the obligation which Myrtle Houston felt to help the poor community which existed between her and plaintiff must fit into one of the four categories in Article 1758 in order to be classified as a natural obligation.
“The first three classes of natural obligations enumerated in Article 1758 are limited to matters of contract and have no application whatever to donations which are placed exclusively within the fourth class. Morris v. Abney, 135 La. 302, 65 So. 315 (1914) and Breaux v. Breaux, supra. The fourth class set forth in Article 1758 was not intended to apply to facts such as are present in the instant case. Rather, this fourth class was designed to support the donation made by an heir or legatee. See 15 Tulane Law Review 497 (1941) quoted in the Law Review Commentaries following Article 1759 in the Louisiana Revised Civil Code.”

The plaintiff does not dispute the factual findings of the District Court. He does, however, contend that:

“1. The lower Court’s legal finding that the obligation felt by Myrtle Cugle Houston to her illiterate husband was not a natural or moral obligation within Civil Code Article 1758(4), and that this delivery was subject to the form of transfer by notarial act, was an error by the lower Court.
“2. The lower Court’s legal finding that the delivery of the bearer note to the appellant was not a negotiation of said note to the appellant, was an error by the lower Court.
“3. The lower Court’s legal finding that the appellant could not act as a holder of the note and enforce payment in his own name, was an error of the lower Court.”

Civil Code Article 1758(4) provides that there is a natural obligation on those who inherit an estate to execute the donations or other dispositions which the decedent made, but which were defective for want of form only. This codal provision is not applicable to a decedent. It is, as the article plainly states, applicable to heirs who inherit an estate and places a natural obligation upon them to honor from their inheritance the donations of the decedent which may be defective for want of form only. However, it has no application to acts of a decedent which are a nullity. Civil Code Article 1536 provides:

“An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.”

Accordingly, we find no obligation on the part of the heirs to comply with a donation by a decedent which is a nullity as distinguished from one merely invalid for form.

The decedent gave the note in question to the plaintiff in 1974, prior to the effective date of the Commercial Laws, R.S. 10:1 et seq. Therefore, the transfer of the note was governed by the provisions of the Negotiable Instruments Law, R.S. 7:1 et seq., since repealed.

R.S. 7:30 provides:

“An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer it is negotiated by delivery; if payable to order it is negotiated by the indorsement of the holder completed by delivery.”

A note, made payable to “myself” and endorsed in blank by the maker, is bearer paper which can be negotiated by delivery. R.S. 7:9, R.S. 7:30, First National Bank of Lafayette v. Gaddis, La.App., 250 So.2d 504 (3rd Cir. 1971). “Delivery” is the transfer of possession, actual or constructive from one person to another. R.S. 7:191. In this case the transfer occurred when the decedent gave the note to the plaintiff as a donation inter vivos. A negotiable instrument may be negotiated by gift as well as for value. Succession of McCrocklin, 242 La. 404, 137 So.2d 274 (1962). However, as was recognized by the Trial Judge, the donation inter vivos of a promissory note, an incorporeal movable, must be in authentic form or be subject to penalty of nullity. C.C. Art. 1536. Because the transfer was an attempt to make a manual gift of an incorporeal movable and was not in authentic form the transfer was a nullity and the note was not negotiated. McLaughlin v. Knox, La.App., 224 So.2d 491 (1st Cir. 1969). Therefore, the note was not negotiated and the plaintiff was not a “holder” of the note.

A “holder” is “the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof.” R.S. 7:191. “The holder of a negotiable instrument may sue thereon in his own name; and payment to him in due course discharges the instrument.” R.S. 7:51. “Payment is made in due course when it is made at or after the maturity of the instrument to the holder thereof in good faith and without notice that his title is defective.” R.S. 7:88. Payment in due course could not be made to the plaintiff because the defendants knew that the plaintiff’s title was defective in that it was acquired through a donation inter vivos subject to the penalty of nullity. Because payments made to the plaintiff would not be payments in due course which would discharge the note, the plaintiff was not a holder of the note. Therefore, the plaintiff can not recover the amount due on the note.

For the above reasons, the judgment appealed is affirmed. Costs to be paid by the plaintiff.

AFFIRMED.


text:
    William H. DAVIS v. CROWN ZELLERBACH CORPORATION, Robert Stallings and Estate of Nancy Viola Boyet Boyet.
    No. 11542.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Delos R. Johnson, Jr., Franklin ton, for plaintiff.
    Michael J. Paduda, Jr. of Gallaspy & Pa-duda, Bogalusa, for Robert Stallings.
    Richard W. Brown of Seal, Lee, Branch & Brown, Bogalusa, for Estate of Nancy Viola Boyet Boyet.
    Richard F. Knight of Talley, Anthony, Hughes & Knight, Bogalusa, for Crown Zel-lerbach Corp.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit for damages for the alleged wrongful cutting of timber and damages to the land. From a judgment in favor of defendants, plaintiff has appealed.

Plaintiff, William H. Davis, alleging he is the owner of a certain 2.06 acre plot of ground, known as the “old mill site” situated in § 12, T 2 S, R 13 E, Washington, Louisiana, contends that the defendant, Crown Zellerbach Corporation (Crown), while cutting timber on property of the defendant, Robert Stallings, crossed the common boundary line between plaintiff and Stallings, and wrongfully cut timber on plaintiff’s land, as well as doing damage to the land. Crown third partied Stallings, the alleged owner of the disputed property, under the timber contract wherein Stallings warranted title to the timber and agreed to hold Crown harmless. In addition, Stall-ings called the Estate of Nancy v. Boyet, his ancestor in title in warranty. At issue is the ownership of the 2.06 acre plot.

In written reasons for judgment the Trial Court found:

“The defendant’s title to the ‘old mill site’ emanates from a tax deed from the estate of W. H. Bailey to Walter Green executed in 1917. From this tax deed to present there is a continuous chain of record title resulting in defendant’s present ownership. This tax deed has not been attacked and is presumed to be valid. Apparently, clear record title rests in the defendant, Robert Stallings, pursuant to the unassailed tax sale.
“The plaintiff’s immediate ancestor in title obtained the mill site in a foreclosure in 1935. At the time the mortgage that resulted in this foreclosure was filed, August 23, 1922, the mill site property did not belong to the mortgagor. The tax sale in. 1917 had placed the property in the defendant’s chain of title.”

Relying on Pope v. Daniel, 195 So. 59, 60 (La.App. 1st Cir. 1940) wherein this Court said:

“As against a mere trespasser or one who claims no title in himself, the plaintiff is not required to prove a title good against the world in order to recover damages for a trespass on the land. A prima facie title is sufficient, [citations omitted]. But as already stated, where the defendant sets up a title to the land on which the timber was cut, it is incumbent on the plaintiff to prove a title to the land superior to that set up by the defendant claiming ownership of the land from which he admits cutting the timber, [citations omitted].”

the Trial Judge found in favor of defendants.

The plaintiff-appellant contends that the Trial Court erred in not going before the 1917 deed executed from the Estate of W. H. Bailey to Walter Green, in not examining the deeds in question, the testimony of the abstractor, and in not giving weight to the fact that there were obviously two “mill sites” in the various deeds.

It was brought out in the testimony that in the late nineteenth century the conveyance records of Washington Parish were destroyed by fire, and thus proof of any conveyances contained therein by use of the conveyance records is impossible. It is apparent to this Court that the Trial Judge examined all of the acts of sale filed into evidence and was convinced that the defendant had proved a better title than the plaintiff. We find no error on the part of the Trial Judge.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed; all costs to be paid by appellant.

AFFIRMED.


author: EDWARDS, Judge.

text:
    E. D. SLEDGE v. ALUMINUM SPECIALTIES MFTG., INC.
    No. 11544.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      James A. Wood, Baton Rouge, of counsel for plaintiff-appellee E. D. Sledge.
    Phil E. Miley, Baton Rouge, of counsel for defendant-appellant Aluminum Specialties Mftg., Inc.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is a suit by E. D. Sledge against Aluminum Specialties Mftg., Inc. to rescind a contract of sale and recover both the contract price and damages. After trial on the merits, judgment was rendered in favor of the plaintiff in the amount of $963.00, representing the purchase price of $463.00 and $500.00 in damages. From this judgment, the defendant appealed. Plaintiff answered the appeal seeking an increase in damages.

On April 23, 1974, the plaintiff and defendant entered into an agreement for the construction of a patio cover at plaintiff’s residence. Construction began shortly thereafter; and the patio cover was completed within a matter of days after the agreement.

Plaintiff states that the purpose of the patio cover, as communicated to the defendant, was to carry water from the roof of the house, over and away from the patio, to the ground, beyond a brick-walled courtyard at the rear of the patio.

Both parties testified that problems with the cover began with the first rain. Water leaked onto the patio and into plaintiff’s house at several places and also overflowed the cover onto the patio.

Defendant made numerous attempts to remedy the defects in the cover, but with no success. The last attempt to repair the cover was on May 15, 1975.

This suit resulted when defendant was unable to correct the defects. The defendant, however, contends that the leakage is the result of defects in plaintiff’s roof rather than any defects in the patio cover.

The trial court held that the plaintiff has suffered damages as the result of defects in the aluminum patio cover. Further, the trial court found that the defects in the cover rendered it useless for its intended purpose. Accordingly, the trial court rendered judgment, based on LSA-C.C. art. 2769, for the purchase price and the damages sustained as a result of the defects in the cover.

Defendant lists four specifications of error allegedly committed by the trial court, to wit:

(1) Error in permitting Charles E. Henry to testify as an expert;
(2) Error in finding that plaintiff had satisfied his burden of proof;
(3) Error in conducting a post-trial inspection of the premises;
(4) Error in determining damages.

Initially, defendant contends that it was error to allow Charles E. Henry to testify since he was not listed as a witness in the pre-trial order.

The trial court allowed Henry to testify because he had made an estimate of repairs to plaintiff’s house which plaintiff intended to offer as evidence. This estimate of repairs was listed in the pre-trial order. The trial court found that this was sufficient cause to allow Henry to testify despite the fact that he was not specifically listed as a witness in the pre-trial order. We agree.

Additionally, defendant contends that Henry was not properly qualified to testify as an expert witness.

Plaintiff offered Henry as an expert in building and repair work. Henry testified that he had approximately six (6) years experience in home construction. Henry further stated that he had “constructed over 250 houses and about 300 apartment units” and that he had ten houses under construction at the time of trial. Additionally, Henry stated that he also performed home repairs and was familiar with the cost of home repair work. The trial court concluded, based on this testimony, that Henry was qualified to testify as an expert in building and repair work.

It is fundamental that a trial judge be allowed much discretion in determining a witness’s qualifications and competence to testify as an expert. See Ashley v. Nissan Motor Corp. in USA, 321 So.2d 868 (La.App. 1st Cir. 1975) and cases cited therein. A reviewing court will not disturb a trial judge’s ruling unless the error is clear and involves a misconception of the law. We find no error in this instance.

Next, defendant argues that the plaintiff has not met his burden of proving the existence of defects in the patio cover.

The plaintiff, his wife and his expert witness, Henry, all testified that the leakage and overflow of water were caused by defects in the patio cover. Additionally, plaintiff introduced numerous photographs showing water leaking from the cover.

Defendant produced testimony, from its president, the two workers who installed the cover, and its own expert, stating that the leakage of water was due to defects in plaintiff’s roof.

Our review of the record does not reveal that the trial court erred in resolving the conflicting testimony in favor of plaintiff’s witnesses.

The defendant’s third specification of error maintains that the trial judge committed reversible error in conducting a post-trial inspection of the premises.

The law is well settled that a “trial judge possesses the right to take into consideration his personal evaluation or observation of the disputed area, not for the purpose of supplying new evidence, but for the purpose of determining, especially when the evidence adduced . . . is in hopeless conflict, which version is worthy of belief.” American Tile & Terrazzo Company v. Keiler, 200 So.2d 350 (La.App. 4th Cir. 1967). See also Bergeron v. Parish Lumber Home Improvements, Inc., 255 So.2d 163 (La.App. 1st Cir. 1971).

Our examination of the record in the instant case reveals that the trial judge’s post-trial inspection of the premises was proper and in accordance with the aforementioned principles. The trial judge’s inspection did not produce new evidence, rather it merely aided the court in resolving conflicting testimony. We therefore find that the trial judge did not err in conducting a post-trial inspection of the premises.

The final specification of error alleges that the trial court erred in determining damages. Defendant contends that plaintiff's recovery under LSA-C.C. art. 2769 should be limited to the cost of repairing or finishing the defective work.

It is well settled that where it is shown that the construction is so defective as to be useless, the loss sustained is the price paid for said construction plus the cost of restoring the premise to its former condition. Sartori v. Hunter, 158 So.2d 457 (La.App. 2nd Cir. 1963).

In the instant ease, the trial court found that the patio cover was useless for its intended purpose. After making this determination, the trial court held that plaintiff was entitled to recover the entire purchase price. We agree. Sartori, supra.

The trial court also properly awarded damages for injuries resulting from the defective construction. Our examination of the record convinces us that the trial court’s award of damages is supported by the evidence; and is neither excessive nor inadequate.

For the above reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

      . LSA-C.C. art. 2769, provides:
      “If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”