author: DOMENGEAUX, Judge. GUIDRY, Judge

text:
    C. I. T. FINANCIAL SERVICES CORPORATION, Plaintiff and Appellant, v. C. L. ROBINSON et al., Defendants and Appellees.
    No. 5439.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 1, 1976.
    Smith & Gaudin by E. Clark Gaudin, Baton Rouge, for plaintiff-appellant.
    William L. Koerber, Vidalia, for defendants-appellees.
    Before DOMENGEAUX, WATSON, and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, C. I. T. Financial Services Corporation, brought this action for enforcement of guaranty agreements allegedly in effect between itself and the defendants-'appellees, C. L. Robinson, George Murray, and Murray’s Mobile Homes. From a judgment dismissing its suit plaintiff has appealed.

The pertinent facts are as follows:

C. L. Robinson and George Murray are partners in an enterprise known as Murray’s Mobile Homes, located in Vidalia, Concordia Parish, Louisiana. C. I. T. Financial Services Corporation is a large lending institution which also deals in commercial paper, with a branch office located in Baton Rouge, Louisiana. Treasure Mobile Homes is a mobile home dealership situated in Hammond, Tangipahoa Parish, Louisiana, and is operated by Don Miller and Dick Everett.

In late 1973 Murray’s Mobile Homes entered into an agreement with C. I. T. whereby the latter would provide certain types of financing for its (Murray’s) business operations and would also purchase certain installment sales contracts. The typical language in that portion of the installment contracts dealing with assignment indicates that the contracts were sold to C.' I. T. without recourse except as otherwise provided between the parties. Before C. I. T. purchased any contracts from Murray’s it required both Mr. Murray and Mr. Robinson to execute personal guaranty agreements relating to future sales of commercial paper. Murray’s Mobile Homes further entered into a contract entitled “Dealer Underlying Agreement” whereby the partnership agreed to repurchase any mobile home on which the original purchaser defaulted and also agreed to make whole C. I. T. for the outstanding balance on any note. The first paragraph of the “Dealer Underlying Agreement” contains the following language :

“1. This Agreement states the terms on which we shall sell and you shall buy contracts evidencing our time sales of new and used mobile homes . . .” (Emphasis added)

C. L. Robinson testified that he met with a representative of C. I. T., Russ King, in Baton Rouge, who offered him the following proposition. King wished to do business with Treasure Mobile Homes but was hampered by the fact that one of Treasure’s partners had prior adverse dealings with C. I. T. According to Robinson, King' requested that Murray’s Mobile Homes “run some of Treasure’s paper through”. He assured Robinson that neither Murray’s Mobile Homes nor its partners would assume any liability whatsoever on the paper. Robinson told King that he would discuss it with his partner, George Murray.

Murray was initially apprehensive, as he knew neither Don Miller nor Dick Everett of Treasure Mobile Homes and did not wish to incur any liability on installment sales contracts executed by another dealership. However, he was assured by Robinson that “by running Treasure’s paper through” they were performing an act merely for the convenience of C. I. T. This representation was made by Robinson to Murray in the presence of King and Dick Everett. At that time, King did not personally concur in Robinson’s assessment of potential liability, but neither did he deny Robinson’s statements. Murray and Robinson testified that they only agreed to act as “sellers” of Treasure’s mobile homes to ingratiate themselves with C. I. T.

King testified that he did not tell Robinson that Murray’s Mobile Homes would not incur liability on the paper, but he did not deny the fact that Robinson made the abovementioned statement to Murray in his presence and that he failed to challenge their interpretation of the agreement.

Apparently the trial judge accepted the factual version presented by Murray and Robinson and we find an adequate basis in the record to support his determination.

Thereafter, George Murray and C. L. Robinson signed all necessary papers, apparently in blank, to indicate that they were the sellers of a particular mobile home to Johnny and Cheryl Harrison. The chattel mortgage shows that the day of the sale was December 20, 1973, and that the seller and mortgagee is Murray’s Mobile Homes of Vidalia, Louisiana. The installment sales contract was assigned by Murray and Robinson to C. I. T. for the amount of $10,582.00. The chattel mortgage was signed in Tangipahoa Parish, where Treasure Mobile Homes is located. The purchaser of the mobile home, Cheryl Harrison, testified that the home was purchased at the Treasure Mobile Homes dealership in Hammond, Louisiana, and that she never met or talked to either Murray or Robinson (nor did she ever hear of Murray’s Mobile Homes) until some time later.

The check given by C. I. T. in consideration for the installment sales contract listed Murray’s Mobile Homes as the payee. However, the check was never delivered to Murray’s, but rather Dick Everett (of Treasure Mobile Homes) personally received the check at C. I. T.’s office in Baton Rouge. The check was endorsed “Murray’s Mobile Homes” and later “For Deposit, Treasure Mobile Homes, Don Miller”. Murray and Robinson never saw the check, nor did they ever receive any compensation whatsoever regarding the above transaction. Sometime in early 1974 Mrs. Harrison called C. I. T. complaining that she had been promised that a washer and dryer would be installed in her trailer. She was told to call George Murray who informed her that she could purchase the needed appliances at a store in Baton Rouge and charge them to his account. Murray testified that he performed this act at the request of C. I. T. who informed him that he would be reimbursed. Once again Murray testified that he was merely trying to accommodate and enhance his relationship with C. I. T.

The Harrisons defaulted on payment of the installment sales contract owned by C. I. T., and the latter then sought to enforce the personal guaranty agreements and dealer underlying agreement against Murray’s Mobile Homes and its two partners.

The issue presented by this litigation is simply this: Are Murray’s Mobile Homes, George Murray, and C. L. Robinson, obligated, under the general agreements executed between them and C. I. T., to guarantee this particular installment sales contract sold to the latter?

We think not.

In our opinion there are several individual contracts involved in this transaction. First, there was the initial sale of the mobile home by Murray’s (Treasure) to the Harrisons. Secondly, there was the sale of the installment sales contract by Murray’s (Treasure) to C. I. T. Finally, there is the alleged contract between Murray’s (and its partners) applying the personal guarantees and dealer underlying agreement to the transaction in question. Obviously, it is this third and final contract with which we are concerned.

Civil Code Article 1779 sets forth the four requisites for contractual validity:

“Art. 1779. Four requisites are necessary to the validity of a contract:
1. Parties légally capable of contracting.
2. Their consent legally given.
3. A certain object, which forms the matter of agreement.
4. A lawful purpose.”

With regard to the second requisite for the validity of a contract, consent, Civil Code Article 1819 provides:

“Art. 1819. Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent, not only where the intent has not been mutually communicated or implied, as is provided in the preceding paragraph, but also where it has been produced by—
Error;
Fraud;
Violence;
Threats.”

While it is generally true that parol evidence is inadmissible to vary or modify the terms of a written agreement, the jurisprudential rule is well established that when misrepresentation is alleged such evidence may be considered. Defendants herein specifically pleaded the issue of misrepresentation, and thus we are free, as was the trial judge, to consider the parol evidence adduced at trial in making a determination of the validity of the contract in question.

We find that the evidence supports defendant’s contention that they never intended to apply the general personal guarantees and dealer underlying agreement to this particular sale. The dealer underlying agreement itself, as abovementioned, indicates that its applicability is limited to sales actually made by Murray’s. Since Murray’s did not, in fact, sell the mobile home in question, nor did they receive any payment therefor, said portion of the dealer underlying agreement is consistent with their position of non-liability on the installment sales contract. While the dealer assignment agreement relative to this particular transaction contained language to the effect that the assignment of the installment sales contract to C. I. T. would be governed by other agreements executed by the parties (dealer underlying agreement and personal guarantees) we are of the opinion that the inclusion of such language in the contract was made upon C. I. T.’s oral representation that the defendants would incur no liability whatsoever on the contract.

Thus, we find that any consent on the defendant’s part concerning the application of the personal guarantees and dealer underlying agreement to this particular sale was vitiated by the misrepresentation made by C. I. T.’s agent as to effect of the language in the dealer assignment portion of the installment sales contract. Hence, consent lacking, the dealer underlying agreement and personal guarantee agreements must, of necessity, be inapplicable to the instant sale.

For the above and foregoing reasons the judgment of the district court is affirmed in all respects. Costs of this appeal shall be assessed against the plaintiff-appellant.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge

(dissenting).

My brethren of the majority determine that defendants should prevail because their “Dealer Underlying Agreement” and agreements of personal guaranty executed in favor of plaintiff do not apply to the Harrison transaction. The majority reasons that as a result of certain representations made to defendants by a Mr. Russ King, C.I.T. District Sales Manager, the agreements were, in effect, amended so as to exclude the Harrison sale from coverage thereby. I can agree that there is a reasonable basis on which to found the conclusion that there was a representation made, or at least participated in, by Mr. King to the effect that defendants would not be responsible under their agreements with C.I.T. in the event of default by the Harrisons; however, I differ with my esteemed brethren as to the effect of such representation on the liability of defendants to Mr. King’s principal, C.I.T.

Mr. Robinson, in testifying concerning the representations made to him by Mr. King, stated as follows:

“Q. . . . did you discuss with Mr. King the uh — business of handling paper for a Treasure Mobile Homes?
A. Yes sir.
Q. Would you tell the court what the discussion was ? What was said between the two of you?
A. . . . Called me and asked me if I would be adverse to running some paper through Murray Mobile Homes. He said he had talked to Mr. Murray and Mr. Murray had gave him a negative uh — with the exception of my approval; that Mr. Murray didn’t know the people that handled the lot and etc. and that I would have to .
Q. Let me interrupt you Mr. Robinson, you — said ‘running some paper’, you mean Treasure Mobile Homes?
A. Yes sir, some Treasure Mobile Home paper, so I told Mr. King that I’d be — that I was having a meeting in Baton Rouge with some dealers uh— in the near future and that I’d be glad to talk with him on it, and he and I went aside at this meeting and uh — he told me he said, ‘now we have — we have been considering doing business with Treasure Mobile Homes; as of now there was uh — we haven’t gotten it approved. There is a partner that’s involved that had some adverse uh — dealing with C.I.T. before and we gonna have to get him out of the picture before we can get the — get them approved uh— but we are working on it, but we want to know if uh — we got a uh — we got a deal that we feel like that uh — we could run some paper uh — we could sell if we had somewhere to run the paper,’ and I asked him as to what our responsibilities would be and I told him that I would — did not want to be responsible for any service and that I definitely didn’t want uh — Mr. Murray involved in the transaction because I didn’t want anything to affect him adversely uh — as a local dealer and uh — that I would be willing uh — to—as long as it wasn’t a recourse deal and we all understood it, as long as we wasn’t responsible for any service or any of the (inaudible) paper, I’d be glad to process the paper work as a matter of routine . . '

There is nothing in the record to even suggest that anyone connected with C.I.T., other than Russ King, knew of the plan concocted by King, Robinson, Murray and Everett, to run sales generated by Treasure under Murray’s name in order to secure C.I.T. financing.

In his negotiations with the defendants Mr. Russ King, although an employee of C.I.T., was clearly acting on behalf of his employer-principal as the latter’s agent. It appears to be rather well established that a servant may possess the qualities of an agent and that a principal-agent status can exist within the framework of an employer-employee relationship. Allen v. Cochran, 160 La. 425, 107 So. 292, 50 A.L.R. 459; La Parie v. Totora, 62 So.2d 658, La.App.; 2A C.J.S. Agency § 16, pp. 577-580; Edgar Frank Blanchard et al. v. Sam Ogima et al., 253 La. 34, 215 So.2d 902. A third party who deals with an agent is required to determine whether or not the contract about to be consummated comes within the agency and will or will not bind the agent’s principal. R.C.C. Article 3021; Federal Insurance Co. v. C. & W. Transfer & Storage Co. Inc., 282 So.2d 563, La.App.; Carey Hodges Associates Inc. v. Continental Fidelity Corp., 264 So.2d 734, La. App.; Builders Center, Inc. v. Smith, 228 So.2d 245, La.App. There is absolutely nothing in the record to even suggest that Mr. King had the authority, from his principal, C.I.T. to abrogate or modify the previous agreements entered into between Robinson, Murray and C.I.T. I believe that it is clear that he did not have such authority and that when he undertook to except the Treasure sales run through Murray’s Mobile Homes from the guarantee agreements signed by defendants, this was clearly an act outside the scope of his agency or an act unauthorized by his principal.

It can be argued that King had apparent authority to act on behalf of C.I.T. Apparent authority is a principle of estoppel, which operates in favor of third persons seeking to bind a principal to an unauthorized act of an agent; such result is fair and equitable in such context since third persons, who are not privy to the actual terms of the agency agreement, must rely entirely on the indicia of authority with which the agent is vested. Broadway v. All Star Insurance Corp., 285 So.2d 536, La. App.; LSA-R.C.C. Arts. 1811, 1816, 1818; Ebert v. Babin, 200 So.2d 672, La.App.; International Union of Operating Engrs. Hoisting and Portable Local 406, AFL-CIO v. Guy Scrogging Inc., 168 So.2d 724, La.App., writ refused, 247 La. 258, 170 So. 2d 511.

In order for the doctrine of “apparent authority” to apply it must be established that the principal made manifestations to the third party and that the third party reasonably rely on the agent’s purported authority as a result of the manifestations of the principal. Krautkramer Ultrasonics, Inc. v. Port Allen Marine Service Inc., 248 So.2d 336, La.App.

When a third person seeks to bind a principal for the unauthorized acts of the agent under the doctrine of apparent authority, it must be established that such third person had no knowledge of or reason to believe that that agent’s acts were without authority. As set forth in 2A C.J.S. Agency § 158, p. 794:

“The question involved is no longer what authority was actually given or was intended by the parties to the agency agreement, but resolves itself instead into the determination of what powers persons of reasonable prudence, ordinarily familiar with business practices, dealing with the agent might rightfully believe him to have on the basis of conduct of principal and agent in their business relationships.”

It seems clear to me that the doctrine of apparent authority has no application in this case because defendants purported reliance on the representations of King were not reasonable but rather totally unreasonable. Defendants were aware that King’s principal did not want to do any business with Treasure Mobile Homes. The very reason for running sales generated by Treasure through Murray was to deceive the principal. Defendants along with Russ King participated in this deception. Defendants, under the circumstances, should not now escape responsibility by urging that their reliance on the representations of plaintiff’s agent was reasonable.

Under the circumstances I would determine that the “Dealer Underlying Agreement” and personal guarantees signed by defendants apply to the Harrison contract and would render judgment in favor of plaintiff.

For the above and foregoing reasons I respectfully dissent.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Thomas C. DAVIS v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY-LICENSE CONTROL AND DRIVERS IMPROVEMENT DIVISION.
    No. 10820.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1976.

      A. Foster Sanders, III, Baton Rouge, for appellant.
    Foye L. Lowe, Jr., Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit to enjoin the suspension of a driver’s license; from a judgment in favor of the defendant maintaining the suspension, the plaintiff has appealed.

On June 7, 1974, Thomas C. Davis, plaintiff-appellant, was arrested and charged with the violation of LSA-R.S. 14:98, driving while intoxicated. As a result of the plaintiff-appellant’s refusal to submit to a Photo-Electric Intoximeter test (PEI), the State of Louisiana, Department of Public Safety, License Control and Driver Improvement Division, defendant-appellee, held an administrative hearing on October 14, 1975, and notified the plaintiff-appellant by letter dated October 27, 1975, that he was found to have violated LSA-R.S. 32:667 by refusing to take the PEI test, and thus, his driver’s license would be suspended for a period of six months. The plaintiff-appellant then filed a “Petition for Appeal of Administrative Ruling Suspending Driver’s License” in the Trial Court seeking to enjoin and prohibit the Department of Public Safety from suspending his driving privileges. A temporary restraining order was granted, but after trial on the merits, the Trial Court held in favor of the defendant-appel-lee finding that the plaintiff-appellant had refused to take the PEI test. The plaintiff-appellant has perfected this suspensive appeal from the judgment of the Trial Court.

Plaintiff-appellant contends that the Trial Court erred in incorrectly applying the applicable statutes because plaintiff-appellant did not refuse to take a valid PEI test as required by LSA-R.S. 32:663 and State v. Jones, 316 So.2d 100 (La. 1975); and in not finding that the action of the Louisiana Department of Public Safety was arbitrary and an unconstitutional denial of plaintiff-appellant’s rights to due process of law as guaranteed by both the State and Federal Constitutions, and in particular his right to counsel and the privilege against self-incrimination.

As to his first specification of error, plaintiff-appellant argues that LSA-R.S. 32:663 provides that for the PEI test to be considered valid, it shall be performed according to methods approved by the State Department of Health, and plaintiff-appellant contends that since the State Department of Health had not set up or approved any methods for administering the test, the test he refused to take was not valid, and thus he has never refused to take a valid test. In support of his argument • that his license should not be suspended for refusing to take an invalid test, he cites Mullens v. Department of Public Safety, Drivers License Division, 327 So.2d 492 (La.App. 4th Cir. 1976), rehearing denied (1976), which held that all tests given or proposed to be given prior to the December 20, 1975, promulgation of new rules by the Health and Human Resources Administration were invalid, and the refusal to submit to the taking of an invalid test was not grounds for suspension of driving privileges. Our Brethren on the Fourth Circuit have concluded that the validity of the test or tests analysing a driver’s blood, urine, breath or other bodily substance for the purpose of determining the alcoholic content of his blood is imperative both as to the criminal as well as the civil aspects of LSA-R.S. 32:661, et seq. Writs to the Louisiana Supreme Court were applied for and denied, 331 So.2d 851 (La.1976), with the notation that the “judgment of the Court of Appeal is correct.” We must, therefore, accept Mullens v. Department of Public Safety, Drivers License Division, supra, as controlling, and hold that since the PEI test which the plaintiff-appellant refused to take was prior to December 20, 1975, he was not in violation of LSA-R.S. 32:667 and thus, his driver’s license could not be suspended for a period of six months.

In light of our ruling, there is no need to discuss the remaining specification of error.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is reversed, and this matter is remanded for the issuance of the injunction as prayed for. All costs of this proceeding are to be paid by defendant-appellee as allowed by law.

REVERSED AND REMANDED.

      . LSA-R.S. 32:667 provides:
      “If a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency as provided in R.S. 32:661, none shall be given. In all such cases the law enforcement officer shall submit a sworn report in a form approved by the director of public safety to the department of public safety that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages, that he had informed the arrested person as provided in R.S. 32:661(0) and that the person had refused to submit to the test upon the request of the law enforcement officer. Upon receipt of the sworn report the department of public safety shall suspend the license of said person or his permit to drive, or any nonresident operating privilege for a period of six months from the date said license is delivered to the department of public safety. This suspension shall be in addition to any subsequent suspension or revocation of the license of any such person arising out of such actions for operating a vehicle while under the influence of alcoholic beverages. If the person is a resident without a license or permit to operate a motor vehicle in this state, the department of public safety shall deny the issuance of a license or permit to such person for a period of six months after the date of the alleged violation, subject to review as hereinafter provided.”

      . LSA-R.S. 32:663 provides:
      “Chemical analyses of the person’s blood, urine, breath or other bodily substance, to be considered valid under the provisions of this Part, shall have been performed according to methods approved by the state department of health and by an individual possessing a valid permit issued by said department for this purpose. The state department of health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analy-ses, and to issue permits which shall be subject to termination or revocation at the discretion of the department.”


author: BLANCHE, Judge.

text:
    Felix CANOVA, Sr. v. Frederick ST. GERMAIN et ux.
    No. 10823.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      Evans H. Scobee, Baton Rouge, for appellant.
    Steven Joffrion, Donaldsonville, for ap-pellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, Felix Canova, Sr., appeals the denial of his request for a permanent injunction prohibiting the defendants-appellees, Frederick St. Germain and his wife, Lena St. Germain, from operating a beauty salon on certain property in the subdivision known as “Pizzolato Subdivision,” Ascension Parish. We affirm.

Plaintiff and defendants purchased adjacent lots from Carlo Pizzolato, who owned certain batture acreage which he developed into Pizzolato Subdivision. They became interested in purchasing the lots for the purpose of home construction prior to rec-ordation of the usual subdivision building restrictions. At that time, the parties were aware that restrictions were to be recorded before any property was sold and would limit all lots to residential use.

As a condition of their lot purchase, the defendants sought and obtained Pizzolato’s permission for Lena St. Germain to operate a beauty salon at their home. Since such operation would be prohibited by the contemplated subdivision restrictions, Piz-zolato promised the defendants that the recorded restrictions would contain an exception allowing the operation of the salon. Subsequent to this agreement and prior to defendants’ purchase of their lot, the subdivision restrictions were recorded. However, they did not contain the exception promised by Pizzolato.

Paragraph (1) of said restrictions reads as follows:

“(1) All of the lots contained in this subdivision are hereby designated as residential lots, and no building shall be erected, altered, placed or permitted to remain on any residential lot other than

one (1) detached single family dwelling,

not to exceed two (2) stories in height and a private garage or carport for not more than three (3) cars.” (Record, p. 8)

During the negotiations surrounding the purchase of plaintiff’s lot, Pizzolato informed plaintiff that he had granted defendants permission to operate a beauty salon at their home. In fact, the testimony of Pizzolato, who was the only disinterested witness to testify, established that plaintiff orally agreed to allow defendants to operate the salon in spite of the proposed residential limitations, that plaintiff made this oral agreement at a meeting in Pizzo-lato’s home on a Sunday morning before either of the parties had purchased a lot, and that said agreement was entered into in the presence of Pizzolato, his wife and sister-in-law; defendant, Frederick St. Germain; and plaintiff’s wife. It was stipulated at trial that Pizzolato’s wife and sister-in-law would corroborate his version of the Sunday meeting.

It appears that all parties present at the meeting thought that it would be a good idea to have a beautician in the immediate neighborhood. In fact, Lena St. Germain had styled the hair of plaintiff’s wife on prior occasions.

Although plaintiff acknowledges that the subject of the beauty salon was discussed, he denies giving his consent at the meeting. The only evidence to support plaintiff’s contention is his own uncorroborated testimony. His wife, who was present at the meeting, was not called to testify in his behalf.

Pizzolato explained that he did not bother to have the exception for the beauty salon placed in the restrictions because he informed all of the prospective lot purchasers, including plaintiff, of the fact that he had granted permission to the defendants to violate this all-inclusive rule. Furthermore, he stated that he thought a written exception “wasn’t needed because we was all a bunch of friends living together.” (Record, p. Ill)

In view of the foregoing, the evidence preponderates to the effect that plaintiff, in the presence of defendant, Frederick St. Germain, agreed to allow defendants to operate the subject beauty salon in their home.

Subsequent to the aforementioned meeting, the subdivision restrictions were recorded, and both plaintiff and defendants purchased lots in the subdivision.

Plaintiff built his home first. Defendants built their home later, including therein an inconspicuous 9-by-12 foot area designed as a beauty salon and furnished with appropriate equipment worth approximately $1,000.

The record discloses that the plaintiff lived adjacent to defendants’ lot, and during the construction of defendants’ home, he was aware that the beauty salon was actually being included therein. However, despite this knowledge, plaintiff did not seek to enjoin the construction of the salon area.

The defendants moved into their new home on December 23, 1970, but due to the pregnancy of Lena St. Germain and her subsequent child care responsibilities, the beauty salon was not operated until March, 1972. At that time Lena St. Germain was granted a Lousiana State Board of Cosmetology license to operate “Lena’s Beauty Salon.” Said salon was operated two days a week at the time of trial.

For the purposes of the following discussion, we will consider the beauty salon to be a commercial enterprise and, therefore, prohibited by the aforementioned subdivision restrictions.

Shortly after the issuance of the license and commencement of operation, plaintiff sought the instant injunction to prohibit the defendants from operating a business in the subdivision in direct contravention of the recorded restrictions. The plaintiff’s request was denied by the trial judge without recorded reasons therefor.

The validity of the restrictions is not contested in this suit. The only issue herein is whether or not this particular plaintiff has a right against the defendants to enforce the residential limitations provision of the instant building restrictions.

In view of the evidence in this case, we think that the plaintiff is equitably estopped from enforcing his rights under the restrictions.

In Wilkinson v. Wilkinson, 323 So.2d 120 (1975), the Louisiana Supreme Court stated:

“Equitable estoppel, or ‘estoppel in pais,’ can be defined as the effect of the voluntary conduct of a party whereby he is barred from asserting rights against another party justifiably relying on such conduct and who has changed his position to his detriment as a result of such reliance. Thus, there are three elements of estoppel: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. State ex rel. Porterie v. Gulf, Mobile and Northern R. Co., 191 La. 163, 184 So. 711 (1938); American Bank and Trust Co. v. Trinity Universal Insurance Co., 194 So.2d 164 (La.App. 1st Cir. 1966), affirmed, 251 La. 445, 205 So.2d 35 (1967); Babin v. Montegut Insurance Agency, Inc., 271 So.2d 642 (La.App. 1st Cir. 1972).” (323 So.2d at 126)

In the case at bar, all three elements of the doctrine are present.

(1) The evidence establishes that prior to the time when defendants purchased their lot, the plaintiff, in the presence of defendant, Frederick St. Germain, consented to the erection and operation of the beauty parlor. During the construction phase, plaintiff stood by silently and allowed the defendants to construct the salon within their new home. Yet, at all times he was aware of their intention to operate the salon as a business. It is, therefore, clear that by his words and actions the plaintiff led the defendants to believe that he, individually, would not enforce the residential limitation of the instant restrictions against them.

(2) The defendants were justified in believing that plaintiff would not object to the operation of the beauty salon, in view of their having been told by plaintiff that he consented to the operation and further enforced by plaintiff’s silent acquiescence in the construction of the physical structure.

(3)The defendants, in reliance upon plaintiff’s consent (in addition to the assurance of the subdivider), expended money and effort to purchase the lot and construct the instant home and beauty salon. Thus, the defendants detrimentally changed their position in reliance upon the conduct of the plaintiff.

In view of the foregoing, we hold that even though it appears that the operation of the instant beauty salon is in direct violation of the aforementioned subdivision restrictions, this particular plaintiff, due to his words and actions, is equitably estopped from enforcing his right to have said operation enjoined.

We are aware, as was stated in Wilkinson, supra, that estoppels are not favored in our law. However, all of the elements necessary to sustain the plea are present in the instant case, and in view of the facts before us, equity demands that the doctrine be applied herein.

Although building restrictions such as those at issue herein are sui generis real rights, they are of necessity asserted by the owner of the property which they favor. In the instant case, the plaintiff led the defendants to believe that he would not assert the right which favored his property. Nevertheless, after the defendants relied upon the words and actions of the plaintiff and built the subject beauty salon, plaintiff now seeks to enforce the restrictive covenants against them. We believe that the plaintiff is equitably estopped from asserting the aforementioned right in the instant case.

In so holding, we do not infer that the oral agreement between these parties had the effect of changing or amending the subject recorded building restrictions. We are basing our affirmance of the district court judgment solely on the ground of equitable estoppel as said doctrine applies to the circumstances and parties in this suit.

For the above and foregoing reasons, the judgment of the trial court is affirmed, at appellant’s costs.

AFFIRMED.


text:
    BURK DEVELOPMENT COMPANY, INC. v. Shelby GUILLORY, Jr.
    No. 10832.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    E. Clark Gaudin, Baton Rouge, for appellant.
    Robert A. Hawthorne, Jr., Baton Rouge, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by Burk Development Company, Inc. (hereinafter sometimes referred to as Burk) against Shelby Guillory, Jr., for specific performance under an agreement to purchase real estate. From a judgment in favor of plaintiff awarding damages, defendant, Guillory, has appealed, and the plaintiff has answered the appeal seeking an increase in damages, including attorney fees.

The record points out that on September 10, 1974, Guillory signed an agreement to purchase certain real estate situated in East Baton Rouge Parish from Burk for $33,355.00. The agreement provided that the act of sale was to be passed within 60 days from the date of the agreement at the expense of and before purchaser’s notary. A $100.00 deposit was made by the defendant, and it was provided that this was not earnest money and specific performance could be demanded.

Prior to the expiration of the 60 days, Guillory informed Burk that he was having financial problems and wanted out of the agreement. He contends he received no response. Burk contends that the most he would agree to was a 90-day extension to the agreement. On January 16, 1975, counsel for Burk wrote Guillory reminding him of the 90-day extension and that he should be in position to perform by February 7, 1975, the last day of the extension. Again on February 14, 1975, counsel for Burk wrote Guillory informing him that he was in default, made demand for specific performance and set February 19, 1975, at 11:00 a. m. in his office as the time for executing the act of sale. This last letter was sent certified, return receipt requested mail, which Guillory refused to accept. No communication was received from Guillory and suit was filed on March 21, 1975.

After trial, it was stipulated by both counsels that if the court were to order Guillory to take title to the property, he could not do so, and thus an award of damages would be an appropriate remedy. The Trial Court awarded plaintiff the sum of $2,914.23, less a credit of $100.00 for the deposit previously paid.

Though the defendant-appellant has assigned no specifications of error on the part of the Trial Judge, he argues that any extension to the buy and sell agreement should have been in writing, and thus the plaintiff acted too late in attempting to place the defendant in default.

Creation and modification of real estate contracts have been considered by the Louisiana Supreme Court as well as the First Circuit. It has been repeatedly held that a contract to purchase and sell real estate is not valid unless given in writing and that an extension of time stipulated for passage of title to property in a written contract to purchase and sell real estate must also be in writing. Harrell v. Stumberg, 220 La. 811, 57 So.2d 692 (La.1952); Wells v. Spears, 255 So.2d 215 (La.App. 1st Cir. 1971) and Parker Mead, Inc. v. Cutrer, 239 So.2d 729 (La.App. 1st Cir. 1970).

While we agree with the defendant-appellant that any extension in the time limit of the purchase agreement must be in writing, we do not agree that it was necessary for plaintiff to put defendant in default during the 60-day period of the contract. The defendant informed plaintiff during .the 60-day period that because of his financial condition he would not be able to perform. Plaintiff informed defendant he would not release the defendant from his obligation though he would give more time, which offer the defendant says he never received. Thereafter, any demand by plaintiff on defendant would be for purposes of formality alone and would serve no useful purpose. The law does not require vain and useless acts from a party. This is in accordance with Allen et al. v. Steers, 39 La.Ann. 586, 2 So. 199 (1887) which was a suit in damages for breach of contract to store cotton, during a certain period, at a stated rate per bale. When the time came for storage, defendant told plaintiff that he was unable to do so because he lacked space. The Supreme Court said:

“It was unnecessary to put the defendant in default. His refusal or acknowledged inability to receive the cotton dispensed with any such putting in default, if any was necessary.”

Further, the contract of agreement to purchase does not provide that time was of the essence; there is no evidence outside of the contract that time was of the essence, particularly in light of the proposed 90-day extension; and it is not argued that time was of the essence, thus neither party was in default at the end of the contracted period, and either party could put the other in default. Luna v. Atchafalaya Realty, Inc., 325 So.2d 835 (La.App. 1st Cir. 1976).

We now come to plaintiff’s answer to this appeal seeking an increase in damages. The Trial Court awarded total damages of $2,914.23 consisting of interest on the sale price of $33,355.00 at the rate of seven (7%) per cent per annum for the period beginning November 10, 1974, the date on which the period expired within which title was to have been conveyed, and ending January 27, 1976, the date of trial. This amounted to $2,834.23. The Trial Court also awarded $80.00 based on testimony that the lot had to be mowed four times during this period of time at a cost of $20.00 each time.

At the time of sale, the defendant was to pay $6,355.00 in cash, and the balance of $27,000.00 was to be financed at nine (9%) per cent per annum interest over a 10-year period. Plaintiff testified that he used the purchase agreement as collateral to borrow $30,000.00 on which he had been paying interest varying from ten (10%) per cent to eleven and one-half (lU/2%) per cent per annum through the time of trial. Finally, we note that the purchase agreement contains the following clause:

“Either party hereto who fails to comply with the terms of this offer, if accepted, is obligated to pay all fees and costs incurred in enforcing collection and damages.”

The plaintiff maintains that by this clause his attorney fees which were made necessary by the defendant’s default are a proper item of damages.

The Trial Judge, in his reasons for judgment, has stated that he believes plaintiff entitled to legal interest from November 10, 1974, through January 27, 1976, because plaintiff could have earned this sum on the sale price. Since we have concluded that neither party was in default as of November 10, 1974, we do not agree that interest runs from this date. We conclude that the defendant-appellant passively breached this contract by not showing up to purchase the property on February 19, 1975, after specific performance was demanded, and thus this is the date of default, and the date from which interest should run. Further, we believe that a more exact award can be calculated from the evidence before the Court. By the terms of the purchase agreement, the defendant was to pay the sum of $6,355.00 in cash at the time of sale. If plaintiff had this money, he could have used it to pay against his own loan on which he was paying interest at the rate of at least ten (10%) per cent per annum. We believe that plaintiff is entitled to ten (10%) per cent per annum interest on $6,355.00 from February 19, 1975, through the date this judgment becomes final. Since the purchase agreement requires that the buyer pay the balance of $27,000.00 in installments at nine (9%) per cent per annum interest, we believe that plaintiff is entitled to nine (9%) per cent per annum interest on $27,000.00 for the above stated period of time. Based on the testimony, the record as a whole, and the fact that an appeal was involved, we find that the plaintiff is entitled to damages of $1,500.00 to apply against necessary legal fees and costs resulting from defendant’s default.

In summary, we award damages at the rate of ten (10%) per cent per annum interest on $6,355.00 from February 19, 1975, through the date this judgment becomes final ; we award damages at the rate of nine (9%) per cent per annum interest on $27,000.00 from February 19, 1975, through the date this judgment becomes final; we award damages of $80.00 for upkeep of the lot; we award damages to apply against legal fees and costs in the amount of $1,500.00; and the entire judgment is subject to a credit of $100.00 which defendant deposited with plaintiff.

For the above and foregoing reasons, the judgment of the Trial Court is amended, and as amended, it is affirmed. All costs to be paid by defendant-appellant.

AMENDED AND AFFIRMED.


author: LOTTINGER Judge.

text:
    Wilson BYRD, III v. Grady Mae BYRD.
    No. 10837.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Arnold J. Gibbs, Baton Rouge, for appellant.
    J. Rodney Ryan, Jr. and Joseph W. Cole, Jr., Port Allen, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER Judge.

This is a proceeding instituted by the defendant-wife and mother, Grady Mae Byrd, seeking an increase in child support. From a judgment in favor of the plaintiff and dismissing the rule instituted by the defendant, this appeal has been taken.

The defendant-appellant, Grady Mae Byrd, obtained a separation from bed and board from her husband in June, 1968. She was granted the permanent care, custody and control of a minor child born of the marriage as well as $75.00 per month as child support. In October, 1975, the plaintiff, husband, filed a suit for divorce contending that no reconciliation had taken place since the judgment of separation. He prayed that the permanent care, custody and control of the minor child be continued with the wife as well as the $75.00 per month as child support. The wife answered and reconvened seeking a divorce, the permanent care, custody and control of the minor child, an injunction prohibiting the husband from disposing of any of the community property, and an increase in the child support payments to an amount of $275.00 per month together with legal interest at the rate of 7% per annum from maturity on each payment until paid, or in the alternative from the date of judicial demand until paid, and that the husband keep in full force and effect medical and hospital coverage on the said minor child and/or be responsible for the child’s medical expenses.

The record points out that the appellee-father is employed by his mother as the manager of a store, lounge, motel and cafe business owned by his mother at a salary of $300.00 per month. He lives rent free at his place of employment as well as eating his meals in the cafe when it is in operation or with his mother and/or brother. In addition, he has the use of the gasoline pump at his place of employment for the 1973 Ford Thunderbird automobile owned by him. There is no mention in the record that this car is not paid for, and thus we must assume that the appellee-father has no outstanding obligation owed on it. Mr. Byrd further testified that he owns an undivided one-half interest in 78 acres of land with his brother, and his income from this should be $300.00 to $400.00 per year. There is a small checking account owned by appellee containing approximately $100.-00, as well as two or three small joint savings accounts owned with his wife. In June, 1968, when child support was originally fixed, Mr. Byrd was employed as a public school teacher earning approximately $500.00 per month. The record is completely devoid of any evidence that he could not be making more than his present salary, or any evidence relating to the monthly living expenses of the appellee.

The defendant-appellant, Mrs. Byrd, is employed as a public school teacher at a gross monthly salary of $1,063.00, from which the following is deducted: retirement, $63.41; federal tax, $181.30; state tax, $11.82; insurance, $65.67; credit union, $110.00; and association dues, $11.25, for a net monthly take home pay of $619.-55.

The minor child, Kimula Yvette Byrd, for whom the child support increase is being sought, is a normal 14 year old high school student who is active in school functions and a member of the school band. The appellant-mother testified that she intended to move from her $65.00 per month living quarters into a house she was going to buy with a monthly note of $245.-00. She further testified that food costs for the child was a minimum of $100.00 per month, that transportation amounted to $70.00 per month because they lived in East Baton Rouge Parish, and the child went to school in Port Allen, where she first started, and as a member of the school band and being active in other school functions, more automobile trips than normal were necessary. The mother also testified that because of the unusually small size of the child, it was difficult for her to buy clothes for Kimula on sale, and thus estimated the clothing expense at approximately $60.00 per month. Medical expenses were estimated by the mother to be approximately $30.00 per month.

The trial Judge in his oral reasons for judgment was of the opinion that Mrs. Byrd was attempting to raise her child according to a standard beyond that of the father’s. He concluded that the child needed more than $75.00 per month from the father but determined that in 1968 when this figure was first fixed, the father was making $500.00 per month, and at the time of trial was only making $300.00 per month. Therefore, since he was making less money than before, the Trial Judge concluded that he did not have the kind of money that the child needed and therefore maintained the child support at the amount of $75.00 per month.

As a general rule much discretion is left to the Trial Judge to determine the proper level of child support to be awarded, and once this has been done, his decision will not be changed on appeal unless it is shown that he has abused his discretion or was manifestly erroneous. We are of the opinion that the Trial Judge in this case has abused his discretion in not increasing the child support award.

It is the responsibility and obligation of parents to support, maintain and educate their children. LSA-C.C. art. 227. After a separation from bed and board, the parents continue to have the obligation and responsibility to support their children at the standard and level of living comparable to that which they enjoyed prior to the separation. LSA-C.C. art. 158 and Mire v. Mire, 251 So.2d 797 (La.App. 1st Cir. 1971), rehearing denied (1971). In the instant proceeding, both Mr. and Mrs. Byrd were school teachers prior to the separation, and Mr. Byrd was earning $500.00 per month. Mr. Byrd testified that he resigned as a school teacher to go to work for his mother, and was only earning $300.00 per month at the time of the trial, but there is no evidence that he has any appreciable living expenses to be taken care of out of his salary.

We are convinced that the cost of supporting this 14 year old child has increased since child support was originally fixed in 1968, and that it costs more to maintain and educate a 14 year old young lady in high school today than it would at the elementary or junior high school level in 1968. The mother is meeting her share of parental responsibility, if not more than her share, in her contributions to the child’s support. We are, however, not convinced that it would take as much as the mother is seeking, $275.00 per month, but we do feel that an increase of $50.00 per month effective from the date that the answer and reconventional demand was filed by the appellant-mother, is justified.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is reversed, and it is ordered, adjudged and decreed that there be judgment herein in favor of the defendant and plaintiff in re-convention, Grady Mae Byrd, and against the plaintiff and defendant in reconvention, Wilson Byrd, III, increasing the child support payments from $75.00 per month’ to $125.00 per month, effective November 18, 1975, the date that the answer and recon-ventional demand was filed. All costs of this appeal are to be paid by plaintiff-ap-pellee.

REVERSED AND RENDERED.


text:
    Mrs. Dorothy WATSON v. LIFE INSURANCE COMPANY OF LOUISIANA et al. Mrs. Dorothy WATSON v. The MINNESOTA MUTUAL LIFE INSURANCE COMPANY et al.
    No. 10839a & b.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      Delos R. Johnson, Jr. and G. Wayne Kuhn Franklinton, for appellant.
    Edward A. Griffis, Bogalusa, for appel-lees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Mrs. Dorothy Watson, plaintiff-appellant, brought separate suits, consolidated for trial, against Minnesota Mutual Life Insurance Company and Life Insurance Company of Louisiana, defendants-appel-lees, to recover the proceeds of policies of credit life insurance allegedly issued by the two companies on the life of her husband, James W. Watson. From judgments rendered in favor of the defendants, plaintiff appeals. We affirm.

James W. Watson made application to Minnesota Mutual Life Insurance Company for credit life insurance on his mortgage loan with Standard Mortgage Corporation. The application form, dated April 29, 1972, was completed at the Watson home and mailed to the mortgagee or insurer.

Also, on April 29, 1972, Mr. Watson and his wife obtained a loan at Parish National Bank, at which time credit life insurance was requested to cover the amount of the loan. A certificate of credit life insurance was issued by Life Insurance Company of Louisiana reflecting an effective date of May 2,1972.

Subsequently, on May 1, 1972, Mr. Watson consulted a urologist, Dr. B. F. Ponig, complaining of an inability to urinate. On May 2, 1972, Mr. Watson was admitted to St. Tammany Parish Hospital in Coving-ton. A cystoscopy was performed on May 12, 1972, which disclosed a large bladder mass, later found to be a carcinoma originating in the sigmoid colon. Surgery performed on May 22, 1972, disclosed that the cancer was invading the lymph nodes and colon, making it inoperable. Mr. Watson subsequently died from the cancer on August 23, 1972. The insurance companies refused to pay the proceeds of the credit life policies to the beneficiary and these suits resulted.

MINNESOTA MUTUAL LIFE INSURANCE POLICY

The application form dated April 29, 1972, which was completed at the Watson home, contained the following questions:

“1. During the last three years, have you been hospitalized or have you consulted a physician for any reason ?
“2. Have you ever been treated for or advised that you had any of the following : heart, lung, nervous or kidney disorder, high blood pressure, cancer or tumor, diabetes?” (Exhibit D-23, Record, p. 541)

Following these questions, the application additionally provided space on the application for response:

“If your answer to either question is yes, give particulars including name and address of physician and dates attended.”

The application form discloses that Mr. Watson marked the square indicating an anwer of “yes” to the first question after first indicating an answer of “no” and scratching it out. The second question was marked indicating a “no” response. In the space provided for particulars was written the notation “over”; on the back of the application was the following notation:

“June 71 — Oschner [sic] Foundation Hospital 2 ruptured discs — Dr. Echols”

The evidence in the record indicates that Mr. Watson’s medical history prior to the date of the application for insurance included hospitalization from April 15, 1969, until May 20, 1969, at the Southeast Louisiana Hospital in Mandeville, with a diagnosis of alcoholism, and hospitalization from April 28, 1971, to May 9, 1971, at the Riverside Medical Center in Franklinton, under the care of Dr. G. L. Foret, again for acute alcoholism.

On March 7, 1972, Mr. Watson consulted Dr. W. P. Crooks, complaining of an approximate twenty-pound weight loss over a two-month period and hesitancy or difficulty in urination. Dr. Crooks’ diagnosis was prostatitis and a weight loss of undetermined etiology. Mr. Watson was advised to return in three weeks for a follow-up examination. Before the three-week period elapsed, Mr. Watson returned to Dr. Crooks with similar complaints on March 20, 1972, and was admitted to Boga-lusa Community Medical Center to. evaluate the reason for his prior weight loss and pyuria (pus in the urine). Mr. Watson was hospitalized from March 20, 1972, until March 24, 1972, during which time diagnostic tests were run. At the time of his discharge, the cause of his weight loss was still undetermined. However, according to the testimony of Dr. Crooks, upon discharge Mr. Watson was fully advised by Dr. Crooks that he was experiencing he-maturia (blood in the urine), pyuria, mild anemia, and mildly elevated blood pressure. Mr. Watson was advised to reduce his salt intake as a means of controlling the hypertension. Further, he was advised to return for a recheck of his urine because of the hematuria and pyuria.

Mr. Watson consulted Dr. E. B. Scog-gin, Dr. Crooks’ partner, on April 27, 1972, complaining again of the symptoms of the urinary tract infection: dysuria (difficulty, pain or burning in the discharge of urine), nocturia (excessive urination at night) and hematuria. Dr. Scoggin’s examination resulted in the finding that Mr. Watson had a “boggy” or soft prostate gland, and his diagnosis was prostatitis (inflammation of the prostate gland). Mr. Watson was placed on a sulfa preparation and told to return after the medication was finished to recheck his urine. On the following day, April 28, 1972, Mr. Watson returned to Dr. Scoggin stating that he had received a laceration on his lower lip accompanied by a questionable amount of blood loss. The examination at that time revealed a low blood count. He was placed on an iron medication to help the anemia and instructed to return in three weeks for a blood count.

During this period of ill health, on April 21, 1972, Mr. Watson was forced to cease work at Crown-Zellerbach, claiming disability as a result of his ill health which was certified by Dr. Scoggin as prostatitis and cystitis. Mr. Watson never resumed work and was placed on disability retirement on July 1, 1972.

Minnesota Mutual Life Insurance Company relies on LSA-R.S. 22:619(B) for its defense to plaintiff’s claim for the proceeds in question. LSA-R.S. 22:619(B) provides:

“B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer. Amended and reenacted Acts 1958, No. 125.”

In order for the insurer to successfully urge LSA-R.S. 22:619(B) as a defense to recovery of the proceeds by the plaintiff-appellant, it must be proved that material misrepresentations were made fraudulently or with intent to deceive the insurer and that the misrepresentations materially affected the risk assumed by the insurer. Gay v. United Benefit Life Insurance Company, 233 La. 226, 96 So.2d 497 (1957); Reed v. American Casualty Company of Reading Pennsylvania, 317 So.2d 648 (La.App. 1st Cir. 1975), writ refused, 320 So.2d 914 (1975); Parfait v. Minnesota Mutual Life Insurance Company, 311 So.2d 558 (La.App 4th Cir. 1975), writ refused, 313 So.2d 847 (1975); Knight v. Jefferson Standard Life Insurance Company, 205 So.2d 485 (La.App. 1st Cir. 1967). Thus, the burden of proof is on the insurer to prove, in addition to the falsity of the statement made, the following two elements: (1) materiality and (2) intent to deceive. Stoma v. Prudential Insurance Company of America, 281 So.2d 871 (La. App. 3rd Cir. 1973).

Intent to Deceive

Strict proof of fraud is not required to show the applicant’s intent to deceive, because of the inherent difficulties of proving one’s intent. The intent to deceive must be determined from the attending circumstances which indicate the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality thereof, or from circumstances which create a reasonable assumption that the insured recognized the materiality of the misrepresentations. Reed v. American Casualty Company of Reading, Pennsylvania, supra; Parfait v. Minnesota Mutual Life Insurance Company, supra; Murphy v. Continental Casualty Company, 269 So.2d 507 (La.App. 1st Cir. 1972).

In response to the inquiries made on the application calling for any prior hospitalization or any consultation with a physician within three years, Mr. Watson listed his hospitalization for disc surgery which indicates that he understood the nature of the information called for by the questions. Mr. Watson was certainly aware of his three prior, undisclosed hospitalizations, the last occurring only four months before the application was completed, and of his numerous consultations with physicians. Thus, the circumstances indicate that Mr. Watson was aware of the falsity of his representations.

Plaintiff suggests that the hospitalizations were unreported because the tests showed no problems. This contention is unsupported by the evidence. According to the testimony of Dr. Crooks, upon discharge Mr. Watson was fully advised of the mild hypertension and the urinary tract infection. Plaintiff’s contention that Mr. Watson had experienced minor problems with a urinary tract infection which was being cleared up is also unsupported. In fact, plaintiff in her own testimony acknowledges that during this period she recognized that Mr. Watson’s health was deteriorating. Furthermore, only two days before the application was prepared, Mr. Watson consulted Dr. Scoggin complaining of the continued problem with urination.

It is reasonable to assume that Mr. Watson recognized the serious nature of his continuing ill health at the time the application for insurance was made. He made undisclosed visits to his doctors, was taking medication for both his urinary tract problem and his anemia, and he was even forced to terminate his employment one week before making the application for insurance, claiming disability as a result of his illness. Mr. Watson’s awareness of his condition and its importance is further illustrated by his medical history that he related to the urologist only three days after the application was completed. Dr. James A. Roberts testified that Mr. Watson related a three-to-four month history of urinary tract problems, anemia, and weight loss, as well as the hospitalization at the Bogalusa Community Medical Center. Therefore, from the attending' circumstances, it is evident that Mr. Watson knew of the falsity of his responses in the application and it is reasonable to assume that he recognized the materiality of the misrepresentations.

Materiality

In order for the misrepresentations made by the applicant for insurance to be deemed material, they must have affected the acceptance of the risk by the insurer. LSA-R.S. 22:619(B). It must be shown that knowledge of the facts, if disclosed, would have affected the insurer in determining, whether to accept the risk. Radosta v. Prudential Insurance Company of America, 163 So.2d 177 (La.App. 4th Cir. 1964), writ refused, 246 La. 589, 165 So.2d 483 (1964).

The testimony of Russell C. Roepke, Manager of the Group Underwriting Department of Minnesota Mutual, indicates that several of the omitted medical conditions in Mr. Watson’s medical history prior to the application would have influenced Minnesota Mutual’s acceptance of the risk. The two prior hospitalizations or alcoholism alone would have been a basis for declining the application. Also, the hospitalization of March 20, 1972, at which time a diagnosis of mild hypertension was made, would have been a basis for declining the policy. Further, the unexplained weight loss, the urinary tract infection, or the prostatitis indicated a continuing medical problem for which Mr. Watson was under continuing medical treatment by Drs. Scog-gin and Crooks, and if disclosed to the insurer would have been material to the acceptance of the risk.

For the foregoing reasons, as to the Minnesota Mutual policy, we affirm the trial judge’s conclusion that material misrepresentations were made which voided the policy.

LIFE INSURANCE COMPANY OF LOUISIANA POLICY

In his written reasons for judgment, the trial judge invalidated both policies in question because of material misrepresentations made by the applicant. This approach fails to accurately distinguish between the two policy applications. No evidence appears in the record as to whether any misrepresentations concerning the applicant’s health were made in applying for the credit life policy issued by the Life Insurance Company of Louisiana. The policy application called for no information concerning the health or prior medical history of Mr. Watson. No evidence shows whether such information was verbally elicited or volunteered.

Life Insurance Company of Louisiana seeks to invalidate the policy in question on the basis of the following provisions in the certificate of insurance:

“4. The Insured named * * * must be alive, in sound health, and gainfully employed before the benefits of this certificate may be attached.
“7. The insurance afforded by this certificate does not cover any disability * * * caused by or resulting from: * * * (5) An accident incurred or sickness contracted by the insured debtor prior to the effective date of the certificate issued to him under this policy.” (Exhibit D-2, Record, p. 48)

It is not necessary for the Court to consider the validity of the broad “sound health” clause of provision No. 4 as a condition precedent to the effectiveness of the policy. See, Audubon Life Insurance Company v. Lauzervich, 242 So.2d 589 (La.App. 1st Cir. 1970); Fournier v. Gulf-co Life Insurance Company, 241 So.2d 287 (La.App. 1st Cir. 1970). But see, Audubon Life Insurance Company v. Lauzervich, supra (Sartain J. concurring); Brasher v. Life Insurance Company of Louisiana, 306 So.2d 321 (La.App. 3rd Cir. 1975), writ refused, 310 So.2d 639 (1975); Ducote v. Life Insurance Company of Louisiana, 245 So.2d 531 (La.App. 3rd Cir. 1971).

The clear language of provision No. 7 can only be interpreted to exclude coverage for any disability resulting from sicknesses contracted before the effective date of the policy. Pearce v. Union Bankers Insurance Company, 259 So.2d 81 (La.App. 1st Cir. 1972). The effective date is indicated on the policy as May 2, 1972. Based on the medical history in the record, including the size of the mass, weight loss, anemia, and the other symptoms appearing prior to the effective date of the policy, Dr. Patrick R. Hunter, Dr. Scoggin and Dr. Crooks testified that in their opinion to a reasonable degree of medical certainty Mr. Watson’s cancer causing his death was contracted before the application and effective date of the policy. Therefore, the benefits afforded by the policy did not cover his death resulting from this particular sickness.

For the above reasons, the decision of the trial court is affirmed. Plaintiff is to pay all costs of this appeal.

AFFIRMED.


author: PONDER, Judge.

text:
    Wanda Faye FINN v. Larry Glenn FINN.
    No. 10821.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Paul H. Due, Baton Rouge, for Larry  Glenn Finn.
    James B. Thompson, III, Baton Rouge, for Wanda Faye Finn.
    Before LANDRY, COVINGTON and PONDER, JJ.

      . We find no merit to defendant-appellant’s contention that the trial judge erred in asking that more testimony be given before he made his decision. In child custody cases, it is of vital importance that the best interests ■ of the children be determined. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

   PONDER, Judge.

Wanda Finn, defendant-appellant in rule, obtained a judgment of separation against Larry Finn, plaintiff-appellee in rule, on May 26, 1972. The judgment, in accordance with a stipulation by the parties, granted Mrs. Finn custody of the two minor children of the marriage, Roy and Glenda, and $200.00 per month child support and $125.00 per month alimony. Mr. Finn was given visitation rights allowing him to keep the two children the first and third week-ends of each month. On August 9, 1973, Mr. Finn was granted a divorce on the grounds of living separate and apart in excess of one year and sixty days since the date of the judgment of separation.

On September 4, 1974, Mr. Finn filed a rule to obtain custody of the children alleging, among other things, that Mrs. Finn slept with men in the presence of the children; she lived with a man for several months; and she failed to provide proper clothing and medical services to the children.

After numerous evidentiary hearings, evidencing the diligence of the judge below to know all the facts, judgment was rendered granting Mr. Finn custody of the children. Mrs. Finn has timely appealed. We affirm.

The lower court found that Mrs. Finn was party to “a bizarre series of events that began in Baton Rouge and went to Lafayette, Louisiana and Houston, Texas and motels and hotels and Holiday Inn in Houston and back to Beaumont, back to Lafayette, and then her house where [Mrs. Finn and her paramour] lived together in open concubinage and in dereliction of her duty to her children . . . ”. The court also found that Mrs. Finn left the man living with her and the children for “sexual activity with” yet another man.

The lower court also stated that “Credibility and truthfulness in (sic) not one of [Mrs. Finn’s] virtues. She lied . . . repeatedly under oath in this court.”

The lower court also found that Mrs. Finn “exhibited even unfaithfulness to the unfaithful” when she left one of her steady “dates” after an evening out and then parked in a car in front of a nightclub until 4:00 a. m. with still a different “date;” and that she “managed to live on a pretty high scale for a woman whose only income is $325.00 per month.”

Two expert witnesses testified. One interviewed the children on only one occasion. It was his opinion that the children were happy and normal. The other expert, however, conducted extensive psychological testing and evaluation. It was his opinion that the children were in trouble emotionally and were definitely headed toward psychological and sociological disruption. He testified that the children should be removed from the environment surrounding their life with Mrs. Finn and be placed with Mr. Finn.

On the other hand, the judge also recognized that Mr. Finn and his present wife had had morality problems of their own. There is no evidence, however, of any immoral conduct by Mr. Finn in the presence of the children or after marriage to his present wife.

The judge below although recognizing that the most difficult thing the court is asked to do among many difficult ones is to remove children from a mother, determined that the best interests of the children would be furthered by granting Mr. Finn custody.

Citing Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), defendant-appellant argues that children cannot be taken from their mother for her past actions but only if it is in the best interest of the children. The evidence clearly meets the requirement of proving detrimental living conditions with the mother and better environment with the father. See Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Gulino v. Gulino, 303 So.2d 299 (La.App. 1st Cir. 1974). Furthermore, there is ample evidence in the record to support the trial court’s finding that the mother lived in open concubinage in the presence of the children which also supports the judgment below. See Morris v. Morris, 152 So.2d 291 (La.App.1st Cir. 1963).

Finally, in domestic relations conflicts, especially where the issue of custody is presented, broad discretion is vested in the trial court and the trial court’s determination will not be set aside unless it is shown to be a clear abuse of discretion. Lambert v. Lambert, 286 So.2d 390 (La. App.1st Cir. 1973); Fulco, supra. No abuse has been shown.

For the above and foregoing reasons we affirm the judgment of the trial court; appellant to pay all costs.

AFFIRMED.

      . One of her steady “dates” admitted giving her a new color T.V. and refrigerator.

      .Defendant-appellant argues that the neighbors and school teachers of the children found them normal well-adjusted children and that the trial court erred in following the expert testimony. We find no error. As the expert testified, the psychological problems of the children were not observable merely from outward appearances, but were instead deep-rooted.


author: CHIASSON, Judge.

text:
    Kathryn KACHELMYER v. John AMES and the Travelers Insurance Company.
    No. 10772.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      Ralph W. Brewer, Baton Rouge, for appellant.
    Eugene R. Groves, Baton Rouge, for ap-pellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

Kathryn Kachelmyer, plaintiff-appellant, brought this suit to recover $65,600.00 as damages for injuries sustained by her as the result of the alleged negligence of John Ames, defendant-appellee. The appellant was injured on January 4, 1971, when the automobile owned by her, in which she was riding as a guest passenger, overturned while being driven by Ames, then a Louisiana resident.

This suit was filed one year later, on January 4,1972, with a request to withhold service until further notice. Service was not requested until April 24,1975, at which time the appellant amended her petition. The amended petition alleged that Ames was no longer a Louisiana resident and requested that service be made on Ames through the Secretary of State. The amended petition also named Travelers Insurance Company, appellee, as a defendant under an automobile liability insurance policy covering the automobile driven by Ames.

Ames filed the declinatory exceptions of insufficiency of citation, insufficiency of service of process and lack of jurisdiction over the person. Travelers filed a peremptory exception of prescription and laches. After a hearing, the District Court sustained all the exceptions, except Ames’ exception of lack of jurisdiction over the person upon which the Trial Court did not rule. The Trial Court dismissed appellant’s suit against Travelers. It is from this judgment that appellant brings her appeal.

The errors specified by the appellant are: “1. The trial court erred in sustaining Ames’ exceptions of insufficiency of citation and of insufficiency of service of process.
“2. The trial court erred in maintaining the peremptory exceptions of prescription and laches filed by defendant, The Travelers Insurance Company, and in dismissing the plaintiff’s suit at her costs.”

Appellant’s claim of personal jurisdiction over Ames is based on R.S. 13:3201(c) which permits the Court to exercise personal jurisdiction over a non-resident as to a cause of action arising from the non-resident causing injury or damage by an offense or quasi offense committed through an act or omission in this state. A “non-resident” under R.S. 13:3201 includes an individual, domiciled in Louisiana at the time the cause of action arose, who acquires a domicile in another state prior to the filing of suit. R.S. 13:3206, comment (c). R.S. 13:3204 provides the method of citation and service of process for suits brought under R.S. 13:3201. R.S. 13:3204 provides:

“A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff to the defendant by registered or certified mail, or actually delivered to the defendant by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general jurisdiction.
“Service of process so made has the same legal force and validity as personal service on the defendant in this state.”

The service of citation on the Secretary of State by the appellant does not meet the requirements of R.S. 13:3204. Where jurisdiction is based on R.S. 13:3201, service must be made under the provisions of R.S. 13:3204. Ray v. South Central Bell Telephone Company, La., 315 So.2d 759 (1975); Boykin v. Lindenkranar, La.App., 252 So.2d 467 (4th Cir. 1971).

Jurisdiction and service could not be had by the appellant under R.S. 13:3474. R.S. 13:3474 provides that the operation by a non-resident of a motor vehicle on the public highways of the State of Louisiana is deemed equivalent to the appointment of the Secretary of State as the non-resident’s attorney for service of process for accidents arising out of the operation of the vehicle in this state. At the time of the accident Ames was a resident of Louisiana. His operation of a motor vehicle on a Louisiana highway can not be deemed the equivalent of the appointment of the Secretary of State as his attorney for service of process. For R.S. 13:3474 to apply, the party must be a non-resident at the time the cause of action arose. The definition of “non-resident” contained in R.S. 13:3206 applies to R.S. 13:3201 and R.S. 13:3202, not to R.S. 13:3474.

The District Court was correct in sustaining Ames’ exceptions of insufficiency of citation and insufficiency of service of process. However, Code of Civil Procedure Article 932 provides that “when the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the Court.” It is apparent that the appellee may remove the grounds for the objection by obtaining proper service upon Ames. Boykin v. Lindenkranar, supra.

R.S. 9:5801 provides in part that:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. . . . ”

Appellant’s suit was filed in a court of competent jurisdiction and in the proper venue.

Civil Code Article 2097 provides that: “A suit brought against one of the debtors in solido interrupts prescription with regard to all.”

An insured and his insurer are soli-dary obligors. Pearson v. Hartford Accident & Indemnity Company, La., 281 So.2d 724 (1973); Hidalgo v. Dupuy, 122 So.2d 639 (App., 1st Cir. 1960).

Appellant filed suit against Ames within the one year prescriptive period provided by Civil Code Article 3536 for injuries which result from offenses or quasi offenses. To interrupt prescription it was not essential that appellant attempt service of citation on Ames, the filing of the suit itself served to interrupt prescription. King v. American Motorists Insurance Co., La.App., 295 So.2d 26 (4th Cir.1974). To determine if the filing of suit which interrupted prescription as to Ames interrupted prescription as to Travelers, it is necessary to determine if Ames was, under the terms of the policy, an “insured” and therefore solidarily liable with Travelers. If Ames and Travelers are solidary obligors, prescription has been interrupted as to Travelers.

For the purposes of passing on this exception, this Court has before it, as a record for review, the pleadings and the minutes of the Court below. It appears that no evidence on the plea of prescription was adduced in the Trial Court. The appellant alleged, in her original and supplemental petition, facts which, if not controverted, are sufficient to establish that the suit against Travelers, the alleged insurer of Ames, was timely filed and prescription interrupted. Pearson v. Hartford Accident & Indemnity Company, supra.

Appellee’s plea of laches is without substance. Such a plea, predicated on a lapse of time alone, is inapplicable where a person is given a specific time within which to enforce a legal claim. Munson v. Martin, 249 La. 925, 192 So.2d 126 (1966). Once a prescription is interrupted by the filing of suit, Code of Civil Procedure Article 561 gives the appellant five years in which to act before the suit is considered abandoned. Five years had not elapsed when the appellant filed her amended petition and requested service of process.

The doctrine of laches addresses itself exclusively to the evidentiary effects of delay. The doctrine should not be applied until after a hearing on the merits so that the Court may have before it all the evidence which could be produced by the proponents of the claim. Labarre v. Rateau, 210 La. 34, 26 So.2d 279 (1946). Travelers’ plea of laches does not provide a basis for dismissing appellant’s suit before a trial on the merits.

For the foregoing reasons, the judgment of the District Court is affirmed insofar as it sustains Ames’ exceptions of insufficiency of citation and insufficiency of service of process. However, the case is remanded to the District Court to fix a delay in which the appellant may effect service of process under R.S. 13:3204. The judgment of the District Court is reversed insofar as it sustains Travelers’ peremptory exception of prescription and laches. Cost to be paid by appellees.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: JONES, Judge.

text:
    Jennie Lee OWEN, Plaintiff-Appellee, v. Joe Baker OWEN, Defendant-Appellant.
    No. 12948.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    Maynard E. Cush, Shreveport, for defendant-appellant.
    Love, Rigby, Dehan & Love by Truly W. McDaniel, Shreveport, for plaintiff-appel-lee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff Jennie Lee Owen obtained a judgment against Joe Baker Owen for $1,000 for past due alimony. See Owen v. Owen, 306 So.2d 895 (La.App., 2d Cir. 1975). Plaintiff filed a petition for garnishment naming Mark F. Preddy & Associates, for whom defendant Owen worked as a salesman, as garnishee.

In answer to the garnishment interrogatories, garnishee admitted defendant was employed by the company on a commission basis and was paid on the first and sixteenth of each month. Garnishee asserted that defendant owed garnishee $650 and specifically claimed its right of payment prior to plaintiff’s garnishment in accordance with LSA-R.S. 13:3925.

On September 12, 1974, judgment was rendered against the garnishee. The judgment provided, in pertinent part, as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, JENNIE LEE OWEN, and against the garnishee, MARK F. PREDDY & ASSOCIATES, INC., for such sums as the defendant herein, JOE BAKER OWEN, earns over and above the legal exemptions provided by LSA-R.S. 13:3881, said deductions to be made from defendant’s wage salary or commission on the dates upon which he is customarily paid, and continuing until the sum of ONE THOUSAND AND NO/100 ($1,000.00) DOLLARS has been paid, or until such time as defendant, JOE BAKER OWEN, shall leave the employ of the said garnishee; these payments to begin from the first pay day since the running of the garnishment against the garnishee, said payments to be made directly to the Office of Sheriff, Caddo Parish, Louisiana.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the above judgment be subject to the prior debt by defendant to garnishee in the amount of SIX HUNDRED FIFTY AND NO/100 ($650.00) DOLLARS, which shall be paid prior to the payment of the above garnishment judgment.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that after defendant’s debt to garnishee is paid, said garnishee is then ordered to commence paying unto the plaintiff herein, JENNIE LEE OWNEN, the full amount of the
garnishment payments as set forth here-inabove.”

Notice of judgment was mailed to the garnishee on September 13, 1974, although garnishee denied receiving it.

Garnishee paid nothing to plaintiff pursuant to the judgment and in March, 1975, plaintiff filed a petition for accounting and judgment against the garnishee. Evidence adduced at trial showed that garnishee paid the defendant substantial sums each month after the seizure as commissions. Garnishee deducted from his pay twice monthly only 10% per pay period for payment on the balance owed garnishee by defendant. The evidence further shows that in February, 1975, garnishee made an additional loan of $400 to the defendant, who subsequently resigned in March, 1975.

Judgment on the petition for accounting was rendered in favor of plaintiff and against garnishee for $1,000. Garnishee appeals.

Appellant assigns three alleged errors. Two of the assigned errors deal with issues raised for the first time on appellant’s application for new trial based on evidence discovered after the trial. This evidence was purportedly directed at a contractual release of the debtor which allegedly had the effect of releasing the garnishee from his obligations under the seizure. The application was denied by the trial court without written reasons. There is no evidence in the record in support of appellant’s allegations nor are the allegations of fact upon which the motion is based verified by affidavit in accordance with LSA-C.C.P. art. 1975. There being absolutely no evidence offered by the appellant to support these contentions, we find these allegations of error to be without merit.

Appellant’s third assigned error alleges that the trial court erred in “refusing to decide that the judgment [of garnishment] itself was improper and not specific enough under the provisions of R.S. 13:3925 and 3926.” A similar argument was made and rejected by this court in the recent case of Dunckelman Distributing Company, Inc. v. S. Aubrey Hyde, 334 So.2d 236 (La.App., 2d Cir. 1976). As was pointed out in that case, the seizure became effective upon service of the petition, citation and interrogatories. LSA-C.C.P. art. 2411. In a wage garnishment, the seizure includes both accrued and future earnings and makes the garnishee the legal custodian of the wages to be held by him until further orders of the court. LSA-R.S. 13:3923; Sun Sales Company v. Hodges, 256 La. 687, 237 So.2d 684 (1970); Dunckelman, supra.

It is true that LSA-R.S. 13:3926 provides that if an employee works on a commission basis, as did the defendant-debtor in the instant case, the judgment shall order a full accounting made at each date when such settlements are made and upon the filing of such accounting the court shall fix the exempt portion and order the nonexempt portion paid in satisfaction of whatever judgment may be rendered. The judgment rendered in this case, based upon the garnishee’s answers to the interrogatories, did not contain these detailed provisions. Also, as in the Dunckelman case, supra, however, the answers of the garnishee in the instant case did not contain the detailed information required of the employer by LSA-R.S. 13:3926 nor the detailed information concerning indebtedness required by LSA-R.S. 13:3925. Also, as in Dunckelman, supra, the garnishee in the case at bar did not ask for a rehearing or new trial, nor appeal, nor petition to reopen the case after rendition of the garnishment judgment on September 12,1974. In any event, we hold that the current proceeding for an accounting which developed a full disclosure of the term of employment, the amount of the commissions, the method of payment of such commissions, and the dates on which settlement was made, effected substantial compliance with LSA-R.S. 13:3926.

The evidence reveals that if the garnishee had fulfilled its obligation to withhold the amounts owed by them to defendant-debtor above the legal exemptions of LSA-R.S. 13:3881, there would have been sufficient funds to discharge the debt owed the garnishee by defendant Owen, as well as the debt owed plaintiff. Because the garnishee failed to fulfill its responsibility as legal custodian of the wages of the defendant, plaintiff did not receive payment of her judgment. The trial court was correct in awarding plaintiff judgment for the $1,000 owed her by defendant Owen.

For the foregoing reasons, the judgment of the lower court is affirmed at appellant’s cost.

Affirmed.


author: LEMMON, Judge.

text:
    BAYOU LANDING, LTD. v. CITY OF KENNER et al.
    No. 7302.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 1976.

      McDonough & McDonough, Birch P. McDonough, New Orleans, for plaintiff-appellant.
    Trombatore & Vondenstein, James S. Conner, Jr., Kenner, for defendants-appel-lees.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

Plaintiff corporation filed this mandamus proceeding to compel the City of Kenner and certain municipal officials to issue an occupational license necessary for “pursuing any trade, profession, vocation, calling or business” in the City, as required by Code of Ordinances, Ch. 10, Art. IV, § 10-53. When the trial court denied plaintiff’s demands after a hearing, plaintiff appealed.

Plaintiff contends that the occupational license tax ordinance is a revenue measure which does not provide for the exercise of discretion in issuing the license. On the other hand, defendants contend they are not obliged to issue a license to a person whose business violates state and municipal criminal laws and that plaintiff’s business violates the state criminal obscenity law and the municipal obscenity ordinance. In essence, the City contends it cannot be compelled to license an unlawful business.

§ 10-53 imposes an annual license tax. §§ 10-57 to 10-106 provide the classification and grading basis for the license tax as to specified occupations and businesses. § 10-107 provides the basis for the license tax for any other business, according to the gross annual receipts of the business. While several sections of the chapter contain particular requirements, only § 10-87 pertaining to mechanical amusement machines and devices lists qualifications for applicants and managers.

Counsel stipulated that plaintiff had applied for a license, that the license had not been granted as of the date of trial (four weeks after the application was filed and one week after suit was filed), and that the license had been approved as to zoning compliance only. Plaintiff’s application listed the kind of business as a “Retail Book Store”. In the section of the application requesting information as to the number of music boxes, pooltables and other such items which are taxed under § 10-87 according to the number of such machines or devices, plaintiff listed “(12) coin operated movie machines”.

The City Marshall testified that his staff investigates the background of applicants for numerous types of licenses and submits a report to the City Council, which then approves or denies the application, and that the investigation of this application had not yet been completed. The Marshall further stated that plaintiff had opened the business without a license and an employee had been arrested for that violation, whereupon he notified the clerk to report to him when an application for the license was filed, in order that he could arrest the proper corporate official for the previous violation.

The ordinance at issue is primarily a revenue measure. As to the business of operating a retail book store, the ordinance contains no provision whatsoever for the investigation, supervision, control or regulation of the business, no requirement of a background investigation of the application, no provision for a delay within which to conduct an investigation, and most importantly, no provision for the denial of a license as a result of an investigation. Furthermore, there are no specified qualifications for the applicant, nor are there any standards or guidelines for the issuing officer to judge the personal fitness or character of the applicant.

Since the application on its face involves a legal business which does not violate any zoning or other regulatory ordinance or law, we conclude that the licensing authority had no discretion to withhold the license to operate a retail book store while awaiting a background investigation. An official may decline issuance of a permit only for a reason specifically authorized by law or by the applicable statute. Schwegmann Bros. Giant Super Markets v. Edwards, 323 So.2d 810 (La.App. 4th Cir. 1975).

As to the City’s contention that the business will violate the obscenity ordinance, that ordinance itself presumably contains the standards for judging violations and the penalties for punishing violations. Perhaps the obscenity ordinance even authorizes revocation of the occupational license as a penalty for violation. But there is no basis for withholding the initial issuance of an occupational license because the obscenity statute might be violated after the license is issued. If a determination is made in the future that plaintiff’s business operation, once commenced, violates the obscenity ordinance, the proper punishment can be imposed by the proper authority in a proper proceeding.

We also hold that the occupational license cannot be denied or withheld on the basis that the applicant previously operated without a license. The ordinance specifies the procedure to be followed in cases of failure to pay the license tax.

As to the coin operated movie machines, the record does not show whether plaintiff’s machines were the type described in § 10-87 so as to make applicable the qualifications requirements of that section. We therefore must remand the case for a determination as to whether § 10-87 applies so that a license is required for operation of these machines in plaintiff’s place of business.

Finally, § 10-111 requires, when the applicant is a corporation, that the application be signed by the proper officer thereof. Plaintiff’s application was signed by “William M. Frank, Mgr.” The ordinance does not define the term “proper officer”, but § 1-8 does provide in case of a violation by a corporation that the officers and agents actively in charge of the business shall be responsible for the violation and subject to prosecution. Since the case must be remanded in any event, plaintiff may present evidence as to William M. Frank’s status as a proper officer of the corporation.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that the case be remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . R.S. 47:397 authorizes municipal corporations to impose an occupational license tax.

      . Testimony by one of the councilmen indicates that after the application was filed, the Council passed an ordinance regulating the operation of adult book stores. That ordinance, however, is not before the court, and we specifically decline to comment on its applicability or validity.

      . Plaintiffs petition does state that “Section 10.87 thereof requires a license for each such machine.”

      . Plaintiff presented no witnesses whatsoever, and the status or authority of William M. Frank remains unexplained in the record.


author: COVINGTON, Judge:

text:
    TRAVELERS INSURANCE COMPANY v. WHITE AUTO STORE OF PLAQUEMINE, INC.
    No. 10777.
    Court of Appeals of Louisiana, First Circuit.
    June 30, 1976.
    J. Peyton Parker, Jr. and James W. Murray, Baton Rouge, for appellant.
    W. Arthur Abercrombie, Jr., Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This is a subrogation suit for property damage incurred on August 20, 1974, by E-Z Serve, Inc., owner, when a delivery truck owned by White Auto Store of Plaquemine, Inc., appellant, and driven by one of its employees in the course and scope of his employment, hit the aluminum canopy which covered two self-service gasoline pumps at owner’s service station. The trial court gave judgment to plaintiff (Travelers) in the amount of $800.00, from which appellant suspensively appealed. We affirm.

The canopy involved was constructed by erecting steel pipes, attaching aluminum I-beams to them and then affixing the aluminum roofing material on top. It had a clearance of ten feet. When Roger C. Lau-ney, appellant’s employee, pulled in to get some gasoline, his truck was too high for the canopy’s height and damage resulted.

The owner got Austin Electric Corporation to do the repairs and paid it $1,050.00; admittedly, $50.00 thereof was to increase the canopy’s height to 12 feet. Travelers reimbursed the owner and obtained a subro-gation receipt.

On appeal, the alleged errors enumerated by appellant are two-fold: that Launey was not guilty of any negligence proximately causing the damage, and (2) that the amount of the judgment was excessive in view of the evidence.

Appellant contends, in its brief, that there was no evidence presented or testimony elicited that would in anyway or manner establish even the slightest act of negligence on the part of the driver-employee. Travelers contends that defendant’s driver-employee was negligent in failing to keep a proper lookout.

Launey testified on direct examination as follows:

“Q. Were you paying attention to the pumps ahead of you, the road ahead of you?
A. Right, I was watching.
Q. How do you explain that you hit this canopy?
A. The truck was just taller and — well, not the truck was taller, the canopy was just lower than what it seemed to be.”

Surely he could have seen, with proper inspection or lookout, that his vehicle was too high to proceed under the canopy. The trial judge had ample testimony to reach his conclusion that Launey was negligent, and such finding will not be disturbed when the record, as here, supports such finding.

The next specification of error complained of was that the judgment was excessive and not justified by the facts and testimony established at the trial. Apparently, the appellant alludes to the testimony of Katherine Elizabeth Crowson, who testified that the canopy had been hit or scraped at least twice prior to the incident giving rise to this litigation. The appellant’s argument is to the effect that some damages were surely sustained as a result of the prior collisions with the same canopy. However, Crowson testified that the only visible damages resulted from the incident involving the appellant’s truck. Further, Mr. Austin, who did the repair work, testified that it was damaged only on one corner and that the only manner in which there could have been some damage existing prior to this incident would have been if they had all hit in the same place, which “. would be kind of odd to me . .

The trial judge stated, in his oral reasons for judgment, at the conclusion of the trial:

“We don’t know how much damage the canopy had sustained by prior bumps, that the testimony appears to be that the particular structure is such that damage to one corner of it tears up screws and screw holes and locking joints all over the whole thing, indicating that it is not as— the material is not as strong as perhaps other structures may have been made of, but we don’t know what damage there was prior to this accident and no effort was made to find out what it was. And that leaves the Court with the position of having to arrive at a damage figure without certain and specific evidence and under those conditions, as I understand it, it’s the obligation of the Court to attempt to reach a figure of damages based on all of the testimony and all the evidence that was presented.”

The trial judge did not have a formula by which he could measure these damages with exactitude, but we feel that he is well within the range of discretion allowed trial courts; LSA-C.C. art. 1934(3).

Travelers neither appealed nor answered the appeal, so we cannot increase the award.

We find no manifest error and, finding none, we hereby affirm the judgment of the trial court, at the appellant’s cost.

AFFIRMED.