text:
    Evie Lee Creel DYSON, Individually and as Administratrix and Natural Tutrix of the minors, et al., Plaintiffs-Appellees, v. John D. BELCHER, Jr., et al., Defendants-Appellants.
    No. 10436.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied May 24, 1976.
    Michael J. Paduda, Jr., and John N. Gal-laspy, Bogalusa, for National Homes & O. E. Waters.
    John W. Anthony, Bogalusa, for Robert Dyson, Jr., and others.
    John J. Cooper, New Orleans, for Gulf Modular, John Belcher and Fidelity & Casualty.
    Louis M. Kiefer, Jr., and Ethel H. Cohen, New Orleans, for Washington-St. Tammany Elec. Co-op.
    A. Clayton James, Jr., and Ronald J. Brumfield, Franklinton, for Agri-Trading Corp. & Wayne Engerran.
    Donald H. Lee, Bogalusa, with Mr. Anthony for the Dysons.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   SARTAIN, Judge.

For reasons assigned this date in Suit No. 10,435 entitled, Robert C. Dyson, Jr., Edward Dyson, Richard C. Dyson, Jimmy Ray Dyson, Earl Dyson, and Robert C. Dyson, Jr., as Administrator and Tutor of Fred Dyson, Joseph Dyson, Neva Lee Dyson, Anthony Dyson and Norma Gayle Dyson v. Gulf Modular Corporation, John D. Belcher, Jr., O. E. Waters, National Homes Corporation, Wayne Engerran, Agri-Trading Corporation, Inc., Fidelity & Casualty Co. of New York, and Washington-St. Tammany Electric Cooperative, Inc., 331 So.2d 543, the judgment of the district court, insofar as the same is in favor of plaintiffs and against O. E. Waters and National Homes, is reversed and set aside and judgment is rendered herein in favor of O. E. Waters and National Homes and against the plaintiffs dismissing plaintiffs’ claim. In all other respects the judgment appealed is affirmed. Plaintiffs-appellees are cast for all costs of these proceedings.

Affirmed in part, reversed in part and rendered.


source: Caselaw Access Project

author: BLANCHE, Judge.

license: Public Domain

text:
    Charles R. CRAMER and Murray J. Cadenhead, d/b/a Cramer & Cadenhead Realtors v. Gregory GUERCIO et al.
    No. 10519.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    For Dissenting Opinion, see 336 So.2d 908.
    Rehearing Denied May 24, 1976.

      Cornelius J. Hyde, III, Baton Rouge, for appellants.
    Wm. J. Doran, Jr. and Wm. T. Kivett, Baton Rouge, for Guercios.
    Chapman L. Sanford, Baton Rouge, for Board of Realtors.
    Before SARTAIN, ELLIS, BLANCHE, COVINGTON and LOTTINGER, JJ.
   BLANCHE, Judge.

Plaintiffs-appellants, Charles R. Cramer and Murray J. Cadenhead, d/b/a Cramer & Cadenhead Realtors, brought this suit for a realtor’s commission which they claim was earned as a result of their efforts leading to the sale of certain premises owned by defendants-appellees, Gregory Guercio, Phil Guercio, Tommye Guercio Galloway, Robert Joseph Guercio and Mark David Guercio.

Thomas J. Guercio, the father of the defendants, died on October 25, 1972, leaving the defendants as sole heirs. The Succession included a residence at 624 Longwood Drive, Baton Rouge, Louisiana. After gaining possession of the Longwood Drive property, the heirs attempted to sell same themselves but failed. In connection therewith, Mrs. Ann Naquin, a sales representative of the plaintiffs, approached the defendants with regard to listing the house for sale with Cramer & Cadenhead Realtors.

On August 15, 1973, a standard ninety-day realtor’s listing agreement was signed by Phil and Gregory Guercio and Tommye Guercio Galloway, listing the house for sale at the price of $53,000. The minor heirs Robert Joseph Guercio and Mark David Guercio were not parties to this agreement.

In connection with the listing, Mrs. Na-quin held an “Open House” on November 4, 1973, to show the house to prospective purchasers. Through this means Mr. and Mrs. Vincent F. Kuetemeyer learned the property was for sale, and they were interested in viewing the same. Prior to going to the "Open House,” they contacted a personal friend Tony Bourgeois, who was also a realtor and had been assisting them in their search for a house. Realtor Bourgeois advised them concerning the specifications of the house as listed in the Baton Rouge Board of Realtors Multiple Listing Service. On viewing the house, the Kuete-meyers decided to make an oral offer through Mrs. Naquin, which offer was refused by the defendants.

When Bourgeois learned that the Kuete-meyers had made an offer directly to another relator, he advised them that ethically he could not represent them in the purchase of that particular house and that henceforth they should deal exclusively with Mrs. Naquin.

On November 11 another “Open House” was held by Mrs. Naquin and the Kuete-meyers made a written second offer of $42,500, which was also refused.

The Kuetemeyers then abandoned attempts to purchase the house since they felt their written offer was their top price and also because they were of the opinion that they could not come to terms with Mrs. Naquin.

On November 15 the exclusive listing of the house with plaintiffs’ agency expired and the listing was then changed to another realty firm, The Guaranty Agency, Inc.

After this change, Bourgeois again began active representation of the Kuetemey-ers with regard to the purchase of the house, and on December 14 Bourgeois, in cooperation with Guaranty, submitted a written offer of $46,000 on behalf of the Kuetemeyers. That offer was accepted by the Guercio heirs on December 17, 1973.

The sale to the Kuetemeyers took place on March 22, 1974, and thereafter Cramer and Cadenhead sued for the realtor’s commission allegedly due them in the sum of $2,760.

The trial judge dismissed plaintiffs’ suit at their costs, and from this judgment plaintiffs have appealed. We affirm.

On appeal the plaintiffs contend that the trial judge was in error in not finding that plaintiffs were the procuring cause of the sale and, alternatively, was in error for not finding that the listing agreement gave them a right to receive a commission for as long as six months after the expiration of their listing agreement, if the purchasers had become interested in the property as a result of their efforts in advertising it.

With regard to plaintiffs’ first assignment of error, we inquire whether plaintiffs were the procuring cause of the sale to the Kuetemeyers.

It is well settled in our law that a realtor is entitled to a commission, even though the sale is consummated after termination of the agency contract, if the realtor was the procuring cause of the sale. Munson v. Alello, 199 So.2d 577 (La.App. 1st Cir. 1967); Searcy v. Jacobs, 151 So.2d 166 (La.App. 4th Cir. 1963); Rolston v. Buff, 130 So.2d 732 (La.App. 1st Cir. 1961); Sleet v. Williams, 291 So.2d 495 (La.App. 3rd Cir. 1974).

Procuring cause refers to the efforts of a broker in introducing or interesting a purchaser and means that negotiations eventually leading to a sale must be the result of some active effort of the broker. Womack Agencies, Inc. v. Fisher, 86 So.2d 732 (La.App. 1st Cir. 1956). However, the mere fact that a sale may have been in some way aided by the previous efforts of the broker does not of itself entitle the broker to a commission. Bullis & Thomas v. Calvert, 162 La. 378, 110 So. 621 (1926). The following language defining “procuring cause” is found in Sleet v. Williams, supra, and is cited from 12 C. J. S. Brokers § 91, page 208:

“As used in. that branch of the law relating to brokers’ commissions, the terms ‘procuring cause,’ ‘efficient cause,’ and ‘proximate cause’ have substantially, if not quite, the same meaning and are often used interchangeably; they refer to a cause originating or setting in motion a series of events which, without break in their continuity, result in the accomplishment of the prime object of the employment of the broker, which may variously be a sale or exchange of the principal’s property, an ultimate agreement between the principal and a prospective contracting party, or the procurement of a purchaser who is ready, willing and able to buy on the principal’s terms.” (291 So.2d at 498)

A review of the evidence presented herein convinces us that the plaintiff is not one who set in motion an uninterrupted series of events which resulted in the ultimate sale or procurement of a purchaser ready, willing and able to buy on the vendor’s terms. Admittedly, the Kuetemeyers were interested in the property when they first noticed the plaintiffs’ “For Sale” sign and attended their “Open House,” and in consequence thereof they made two offers, one oral and one written, and both were submitted to the owners by the agents and both were rejected, as neither conformed to the terms of the listing agreement. Subsequent to the rejection of said offers, the plaintiffs lost the exclusive listing on the property, being replaced by Guaranty Agency. With the intervention of the third realtor, Tony Bourgeois, Guaranty was able to obtain acceptance of the Kue-temeyers’ offer of $46,000. The plaintiffs were not in any manner involved with the negotiations which took place subsequent to their replacement by Guaranty, and as a result of the Guaranty and Bourgeois efforts/an offer $3,500 higher than the best offer obtained by plaintiffs was finally accepted by the owners.

We conclude that the sale was not the result of some active effort of the plaintiffs but instead resulted from the combined efforts of the two new realtors, Bourgeois and Guaranty Agency. These realtors entered the picture only after negotiations among the owners, the plaintiffs and the Kuetemeyers had terminated in failure and after plaintiffs’ exclusive listing had expired.

This is not a case where the owners fraudulently sought to prevent the plaintiffs from recovering their commission; in fact, the owners did not even know the Kuetemeyers were the prospective purchasers in the two offers obtained by plaintiffs.

The finding by the trial judge that plaintiffs were not the procuring cause of the instant sale, a finding which by its very nature is factual, has not been shown to be manifestly erroneous and is correct.

Plaintiffs’ alternative contention is also without merit. It is based upon the following language in the agreement:

"I/We furfher agree to pay commission as above stipulated in event of sale of said property by me/us within six months after the expiration of this agreement, provided purchaser has become interested in said property as a result of the efforts of advertising of said agent during the active term of this listing, and I/We also agree to refer all prospects to the listing Realtor.” (Exhibit P-1—Emphasis supplied)

Since the subject sale occurred within six months of the expiration of the listing agreement, plaintiffs assert that they are entitled to said commission.

It is strenuously argued by defendants that the foregoing six-month clause has no application to the case where the owners’ duly authorized real estate agent makes such a sale. In proof thereof, the defendants attempted to introduce parol evidence to establish that the subject clause pertains only to a sale by the owners without the intervention of a new realtor, unlike what occurred herein. This attempt was met by an objection from the plaintiffs as an effort to circumvent the language of the contract. The objection was sustained by the trial judge, and thereafter the evidence was proffered by the defendants.

Our first impression is that there is nothing ambiguous about the words “me/us,” and ordinarily we would assume them to include one’s agent. However, the evidence offered under the Proffer of Proof is definitely to the contrary. Witnesses called by the defendants, all qualified in the real estate profession and knowledgeable concerning the practice with reference to the foregoing clause, categorically testified that the purpose of the clause was to prevent an owner from contacting a prospective purchaser after the listing had expired so as to deprive a listing realtor of his commission and that the clause had no application to a real estate agent operating under a valid listing.

Serious consequences to a good faith property owner will result if the six-month clause is applicable to an owner’s duly authorized real estate broker. A property owner listing a house with a realtor could possibly be liable for a double commission or even additional commissions if he subsequently changes realtors after the initial listing expires and the property is sold within six months thereafter by the new listing realtor to someone who had been interested in the property by the first realtor or who had submitted an offer, although far less than the ultimate sales price of the property. To say the least, sanctioning such a result is an absurdity, and that would be the precise result here if we require the good faith property owners in the instant case to pay a double commission.

The listing agreement in question is an agency contract between the owners and an agent and was prepared by the agent primarily for the agent’s benefit. Considering that it was written primarily in the real estate agent’s interests, we are of the opinion that the interpretation of the language given by defendants’ witnesses is the most logical.

To the extent that parol evidence was used to ascertain the intent of the words “me/us” in the six-month clause, we believe parol evidence was admissible. The words “me/us” are susceptible of more than one interpretation, as they could pertain solely to the owners acting in their own behalf or they could refer to a sale like the one in the instant case accomplished through the owners’ agent. Parol evidence is admissible to ascertain the meaning of language susceptible of more than one interpretation. Molero v. California Company, 145 So.2d 602 (La.App. 4th Cir. 1962).

In our attempt to ascertain the meaning of the subject clause, ambiguity in this real estate contract must be construed against the plaintiffs who prepared the same. Kuhn v. Stan A. Plauche Real Estate Company, 249 La. 85, 185 So.2d 210 (1966).

In the Molero case, supra, we find other legal precepts that are applicable here:

“When called upon to enforce or interpret a contract, the court must seek for and ascertain the mutual intention of the parties, if that be possible. Chicago Mill & Lumber Co. v. Lewis, La.App., 68 So. 2d 913; Cooley v. Meridian Lumber Co., 195 La. 631, 197 So. 255.
“In the interpretation of contracts, courts are bound to give legal effect to the true meaning and intent of the parties and in determining such intent all facts and circumstances relevant and pertinent are to be weighed and considered. Cardos v. Cristadoro, 228 La. 975, 84 So.2d 606.
“The intention of parties to an agreement may be gathered from the words of the instrument evidencing the agreement and the manner in which it was executed, Bourg v. Hebert, 224 La. 535, 70 So.2d 116, and from other circumstances beyond the wording of the instrument. Boisseau v. Vallon & Jordano, 174 La. 492, 141 So. 38. See also LSA-C.C. Article 1950.
“It is the court’s duty to construe agreements in accordance with the parties’ common intention rather than adhere to the literal meaning of the terms thereof. Dockson Gas Co. v. S. & W. Construction Co., La.App., 12 So.2d 847.
* * * * * *
“ * * * It is a well established rule of law that where the words of a contract are susceptible of more than one meaning courts must give them the interpretation that carries out the object and purpose of the contract. Robbert v. Equitable Life Assur. Soc. of United States, 217 La. 325, 46 So.2d 286.
“Although it is a settled rule of construction that words in an agreement or contract are usually interpreted according to their ordinary and customary meaning, clauses couched in general terms, which, if taken literally would lead to unreasonable consequences, must be construed according to what, under the circumstances, was most probably the intention of the parties. Losecco v. Gregory, 108 La. 648, 32 So. 985.” (Molero v. California Company, 145 So.2d at 607, 609)

Under the circumstances obtaining in the case at bar, we have no hesitancy in concluding that the six-month clause pertains only to a sale by owners and does not apply to- a case where the real estate agent operating under a valid listing agreement sells property to a purchaser who has initially become interested in the property as the result of the efforts of the first listing agent.

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

AFFIRMED.

LOTTINGER, J., dissents with written reasons.

ELLIS, J., dissents for reasons assigned by LOTTINGER, J.


author: LANDRY, Judge.

text:
    Virginia S. MOORE v. THUNDERBIRD, INC., et al.
    No. 10655.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Charles R. Moore, Baton Rouge, for appellant.
    Kenneth W. Cole, Lafayette, for defendants-appellees Thunderbird, Inc. and Market Ins. Co.
    David C. Kimmel, Baton Rouge, for defendants-appellees Elizabeth Charlene St. Angelo and Johnny Raymond St. Angelo.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

This appeal by plaintiff (Appellant) presents the single issue of whether a father may recover damages for the wrongful death of his biological illegitimate child. Appellant, mother of her deceased illegitimate daughter, Karen Antoinette Vi-drine, brings this action seeking damages, individually and as assignee of the rights of the child’s biological father, Anthony Gus Vidrine, for the child’s alleged wrongful death by drowning at a breach resort operated by defendant Thunderbird, Inc., the insured of defendant, Market Insurance Company. Also made defendants herein were Mr. and Mrs. St. Angelo, who accompanied the deceased child to the resort. Judgment was rendered below in favor of Appellant on her personal action against all defendants. No appeal has been taken therefrom. Judgment was also rendered below in favor of defendants Thunderbird, Inc., and its said insurer, sus-taming said defendants’ exception of no right of action and dismissing that portion of Appellant’s claim predicated upon assignment of the rights of the biological father of the child. From this latter judgment Appellant appeals.

It is conceded that only the stated question of law is involved herein. For purposes for their exception, defendants Thunderbird, Inc. and Market Insurance Company concede that Anthony Gus Vi-drine is the biological father of the child in question.

Prior to certain recent decisions by the United States Supreme Court, our jurisprudence was well established to the effect that parents of illegitimate children were without legal right to recover damages for the death of such offspring. Lynch, v. Knoop, 118 La. 611, 43 So. 252; Cheeks v. Fidelity & Casualty Co. of New York, La.App., 87 So.2d 377; Scott v. La Fontaine, La.App., 148 So.2d 780. The cited cases held in substance that La.C.C. Article 2315, which allows recovery for wrongful death, applies only to legitimate relations.

However, the foregoing Louisiana rule was nullified by Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, which held in effect that denial of an illegitimate child’s right to sue for damages for the death of the child’s biological mother, amounts to denial of equal rights guaranteed by the Federal Constitution.

Glona v. American Guarantee & Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441, rendered on the same day as Levy, above, held that the mother of an illegitimate child is entitled to sue for damages for the death of such an offspring.

Subsequent to Glona, above, Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768, held that dependent unacknowledged illegitimate children have a right to workmen’s compensation benefits, pursuant to Louisiana law, for the death of their biological father.

Except as hereinafter required to answer Appellees’ argument that the position of the biological father of an illegitimate child is different from that of the biological mother, we deem it unnecessary to discuss the moral and legal concepts which constitute the rationale of Levy and Glona, above. It suffices to state that these authorities found constitutional bases for the proposition that an illegitimate child may recover for the death of his biological mother and that a biological mother may recover damages for the death of her illegitimate child.

Our own Supreme Court has recognized the binding effect of Levy, Glona and Weber, above. In Warren v. Richard, La., 296 So.2d 813, it was held that an illegitimate child may recover for the death of his biological father, notwithstanding the child is deemed by state law to be the legitimate child of another man.

In rejecting Appellant’s demands under the assignment granted in this instance, the lower court relied upon Honeycutt v. City of Monroe, La.App., 253 So.2d 597, which was an action by a father and mother for damages for the death of their twelve year old illegitimate child who drowned in a municipal swimming pool. The action of the father was dismissed upon an exception of no right of action based on a lack of proof of paternity. In this instance, the father relied upon Glona, above, as authority for the rule that a father may sue for the wrongful death of his illegitimate child. In answering this contention, the Honeycutt decision states:

“ . . . It is urged on behalf of Page that the holding in Glona v. American Guarantee & Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968), applies equally to the natural father as to the natural mother of an illegitimate.
Glona stands for the proposition that where plaintiff is ‘plainly’ the mother of an illegitimate child, the fact of its illegitimacy is no bar to her recovery for the wrongful death of her child. Even if we should agree with plaintiff Page’s argument, which we do not, the evidence in the instant case fails to convince us that Oliver Page is ‘plainly’ the father of Stanley.
It is also argued that if the child was indeed the child of Oliver Page ‘in the biological and in the spiritual sense, and if the court finds that Oliver Page loved, cared for, supported and educated the deceased child, he has suffered a wrong which is compensable in damages under Article 2315’, citing Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).
Having found the evidence insufficient to prove Page was the ‘biological’ father of Stanley, we conclude the cited case is inapplicable to the present facts, which finding precludes the necessity of passing on his negligence. Furthermore, Levy was a suit by the illegitimate child to recover for the wrongful death of the natural mother, and the language employed in the preceding paragraph is used in the United States Supreme Court opinion to describe the nature of the wrong inflicted upon the child.” (Emphasis added to phrase “which we do not”)

It is contended the cited language from Honeycutt, above, rejected the argument that Glona, above, affords a natural father a right of action for the death of an illegitimate child. However, we find, in view of the court’s holding that the father had failed to prove paternity, the quoted language appears to be dicta. We do not consider Honeycutt, above, to have held that Glona, above, does not apply to the biological father of an illegitimate child. We are of the view that the Glona reference to claimant as “plainly the mother,” was intended merely to require proof of maternal relationship.

Our own circuit has recognized and applied the Glona rule in a suit by a mother seeking damages for the death of an illegitimate child. See Miles v. City-Parish Government of East Baton Rouge Parish, La.App., 219 So.2d 320.

Glona, above, expressly rejected the contention that the cause of illegitimacy would be served by allowing a mother to recover for the death of her illegitimate child. We find Glona, above, has at least impliedly held the immorality of the mother of an illegitimate child does not bar the mother’s right to sue for the child’s death. We mention these aspects of Glona, above, because Appellees contend the difference between the relationship of a biological father to his illegitimate child is generally so different from that of the mother as to justify denying the father the right to recover damages for the child’s death. Ap-pellees suggest that the case of the mother is different because there can be no doubt as to who is the mother of a child; the mother carries the child during gestation, and in most cases the mother bears the burden of rearing, supporting and educating the illegitimate. In this regard, Appel-lees suggest that in many cases the biological father is not known and it frequently occurs that the father had no part in the child’s rearing and makes no contribution to the child’s support.

We believe Glona, above, predicates the mother’s recovery upon relationship, albeit illegitimate. In this connection we find no distinction between the relationship of the father and that of the mother. Glona, above, does not deprive the mother of recovery for the immorality of illegitimate conception. We believe that to apply a different rule to the father would deprive him of the equality of rights guaranteed by the Federal Constitution. The father is no more nor less guilty of immorality than is the mother.

We believe the issues of support and contact with the child are properly concerned with proof of paternity and the amount of damages to which a biological father may be entitled, and not to the basic right of the father to recover as a matter of law. We conclude Appellant is entitled to proceed with her assigned right of action and is entitled to recover whatever damages are due her assignor.

IT IS ORDERED, ADJUDGED AND DECREED, that the judgment of the trial court sustaining the exception of no right of action filed by defendants Thunderbird, Inc. and Market Insurance Company, in opposition to Appellant’s claim for damages pursuant to assignment from Anthony Gus Vidrine, be and the same is hereby annulled, reversed and set aside and judgment rendered herein overruling and dismissing said exceptions and remanding this case to the trial court for further proceedings consistent with the views herein expressed, all costs of this appeal to be paid by Appellees Thunderbird, Inc., and Market Insurance Company.

Reversed and remanded.


author: SARTAIN, Judge.

text:
    Van H. ALFORD, Plaintiff-Appellant, v. GEORGIA-PACIFIC CORPORATION, Defendant-Appellee.
    No. 10651.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Writ Refused July 1, 1976.
    Leo J. Berggreen, Baton Rouge, for plaintiff-appellant.
    John Dale Powers, Baton Rouge, for defendant-appellee.
    Before LANDRY, SARTAIN and EDWARDS, JJ.
   SARTAIN, Judge.

This is a suit for defamation instituted by plaintiff, Van H. Alford, against his former employer, Georgia-Pacific Corporation, for statements that agents of defendant Georgia-Pacific allegedly made to plaintiff’s inquiring prospective employers. The case was originally tried before a jury which returned judgment in favor of plaintiff. Subsequently, motion for new trial was granted on grounds that the verdict was contrary to the evidence. The case was reassigned to another division where pursuant to stipulation by counsel the case was submitted on the basis of the transcript of the original trial. The trial judge therein rendered judgment in favor of defendant dismissing plaintiff’s claim and thus prompting plaintiff’s appeal. We affirm.

We have carefully reviewed the record before us and adopt the following statement of facts found in the learned trial judge’s written reasons for judgment as our own:

“Plaintiff was hired by Georgia-Pacific as an electrical engineer in the year 1970. The contract of employment was verbal and terminable at will by either party. On November 5, 1973, defendant unilaterally terminated Alford’s employment. Although no reason for discharge was logged in defendant’s personnel file, the defendant’s personnel manager, John D. Taylor, verbally indicated that plaintiff had trouble motivating and working with people in the field.

“Subsequent to his discharge, plaintiff applied for several positions with other local concerns. In the process of reviewing the plaintiff’s employment history, these prospective employers would contact Georgia-Pacific to obtain a work performance evaluation. In the course of the conversation, defendant’s agent (s) stated that plaintiff was a good draftsman, a good engineer on the board, but had trouble ‘pushing a crew.’

“Plaintiff avers that over the past fifteen years he has enjoyed an outstanding reputation as an electrical engineer. As far as he is concerned, no official reason was ever given for his discharge. Alford further contends that the statements made by agents of the defendant company were knowingly false, but nevertheless made to discredit his character and reputation. Plaintiff alleges that as a result of his arbitrary and capricious discharge by defendant and the subsequent malicious statements, he has suffered a loss of standing in the community, embarrassment and humiliation, damage to his professional reputation, mental anguish, and loss of future earnings.

“Defendant vehemently denies plaintiff’s allegations, taking the position that the statements made by its employees were neither false nor malicious. The resolution of these contentions requires a summary of the relevant evidence adduced at trial.

“John D. Taylor, defendant’s personnel manager, testified on cross examination that he had talked for several minutes on the telephone with Mr. C. Z. Breaux of Dyer and Moody, Inc., around the first of the year, 1974. Breaux inquired about plaintiff’s employment history with Georgia-Pacific. In response, Taylor told Breaux that plaintiff was a good draftsman, a ‘good engineer on the board’ but was unable to ‘push a crew’ or a contractor (Tr. p. 23). Taylor explained that an electrical engineer at defendant’s plant was required to do both drafting and supervision. The same information was also communicated to Mr. Thomas N. Samuel, personnel director with Dixie Electric Membership Corporation (Tr. p. 33).

“Taylor stated that his conclusions relative to plaintiff’s attributes and shortcomings were based on both personal observations and opinions expressed by other supervisors and employees (Tr. pp. 26-28).

“Taylor further testified on direct examination that Alford was both cooperative and polite, but that he was more of a follower than a leader. When prospective employers called for a recommendation he gave what he thought to be an honest one. He further stated that he was not out to-get or hurt Alford in any way (Tr. pp. 359-361).

"Wayne Stonecypher, the assistant personnel manager at Georgia-Pacific, testified on cross examination that he received a call from Mr. Robert Couvillion of Rust Engineering Company concerning a recommendation for Alford. Stonecypher informed Couvillion that he did not have the authority to discuss the matter.

“Earnest R. Clifton, Jr., director of the engineering and maintenance department, testified that he was Alford’s supervisor at Georgia-Pacific. Clifton talked to approximately six individuals requesting a recommendation for the plaintiff. He told each one that ‘Mr. Alford was a qualified electrical engineer, that I did not feel that he was a field man and could not work in the field and that I did not feel that he could supervise people . . . that if I had a job . . . for his qualifications where he would not have to deal with people or work people that I would not hesitate to hire him in that job’ (Tr. pp. 377-378). Clifton further testified that he had nothing personal against Alford, nor was he trying to harm him in any way. He did not consider his recommendations to be derragatory (sic) or untruthful (Tr. p. 377).

“Robert Couvillion, an electrical engineer with Rust Engineering Company, testified that he had a personal interview with plaintiff for possible employment) in November of 1973. He attempted to contact the personnel manager at Georgia-Pacific for a recommendation, but was unable to reach him. Couvillion testified that Alford was not hired because, in his opinion, he did not meet qualifications for strong technical administrative leadership ability (Tr. p. 72).

“William D. Kimbro, with Parker and Baker Employment Agency, testified that plaintiff came to see him about finding a job in December of 1973. He spoke with Mr. Clifton about plaintiff’s qualifications and was told that plaintiff was an excellent engineer, ‘a engineer’s engineer.’ He was also told that Alford was not considered to be good management material because of a problem in communicating with the people doing the work. Kimbro further testified that he was very favorably impressed with plaintiff’s qualifications after his discussion with Clifton (Tr. pp. 79-80).

“Jerry Smith, formerly an employment counselor with Snelling and Snelling, testified that he placed Alford with a consulting engineering firm. He stated that he wrote defendant for personnel data on plaintiff’s past employment but received no reply. (Tr. p. 90).

“C. Z. Breaux, Jr., with Dyer and Moody, Consulting Engineers, interviewed Alford for possible employment in November of 1973. Breaux contacted John Taylor of Georgia-Pacific for reference purposes. During the conversation which lasted several minutes, Breaux was informed that Alford had ‘very good engineering capabilities; and that he was quite competent and capable on the board. In addition, Taylor indicated that Alford was lacking some of the qualities in relation to field work (Tr. p. 164). Breaux further testified that he considered Taylor’s recommendation to be very good and complimentary with respect to plaintiff’s engineering capabilities. He also stated that the conversation with Taylor was one, but not the sole factor associated with his decision not to hire Alford. (Tr. p. 166).

“G. R. Worley, who has been plaintiff’s supervision at Dow Chemical Corporation in 1966, testified as an expert in the field of mechanical engineering. He stated that in his opinion Alford was very competent as a pure engineer. Although plaintiff was a good design engineer, he had problems communicating and working with people in the field. His opinion was based on personal observation and written reports from other supervisors. (Tr. pp. 271, 276).

“Thomas N. Sammel, personnel manager with Dixie Electric Membership Corporation, testified that Mr. Taylor gave plaintiff a good recommendation as a drafting board engineer who, however, could not work well with people in the field. Sam-mel further testified that this evaluation did not have a bearing on his decision not to hire Alford. Apparently, plaintiff lacked the qualification and experience for a utility engineer—the position to be filled (Tr. p. 280-282).

“Don R. Calhoun, a general mechanic with Georgia-Pacific, testified that on several occasions he worked with plaintiff. He testified that Alford was a ‘real good engineer on a thing dealing with the drawing board.’ However, Calhoun was also of the opinion that plaintiff was not ‘forceful enough to get work out of people.’ (Tr. pp. 315-316).

“Ralph Ellis, formerly a plant engineer with Georgia-Pacific, testified that he discussed plaintiff’s job performance with Ernest Clifton. These discussions concerned Alford’s ability to communicate with the hourly-employees in relation to field work. Ellis characterized plaintiff’s problem as a lack of aggressiveness (Tr. p. 342). Ellis further testified that he attempted to work around Alford’s problem (Tr. p. 353).,

“John Kirschenbaum, mechanical engineer with Georgia-Pacific, testified that plaintiff was a nice person, but had difficulty communicating with the hourly employees (Tr. p. 389).

“Dr. Roger L. Burford, professor of quantitative methods, proposed a statement of plaintiff’s projected future earnings for purposes of the trial. Dr. Burford projected Alford’s future earnings to be $423,865.-00, assuming a discount factor of five per cent, an annual rate of growth of four and one-half per cent, and a work expectancy of 20.3 years. This figure is based on the premise that plaintiff will never work again.

“Dr. Vincent Cangelosi, a professor and part owner of a consulting and research firm, calculated the liklihood (sic) of plaintiff’s re-employability in the engineering field to be over ninety-nine per cent in the Baton Rouge area.

“Dr. Thomas T. Stigall, a clinical psychologist, performed various tests to determine plaintiff’s psychological status for trial purposes. Dr. Stigall concluded that plaintiff appeared to have no psychological disabilities or disorders. The doctor further stated that Alford exhibited some signs of mild anxiety and depression, but that these symptoms were only situational-.

“Plaintiff, testifying on his own behalf, stated that he was never told why he had been discharged (Tr. p. 120). Alford further testified on cross examination that he really doesn’t think anyone at Georgia-Pacific is ‘out to get him’ (Tr. pp. 146-147). To the best of his knowledge he was never called down for doing his work improperly (Tr. p. 158).”

Citing Sas Jaworsky v. Padfield, 211 So.2d 122 (La.App. 3rd Cir., 1968), setting forth the elements of proof necessary to make words actionable under law, the trial judge concluded that plaintiff had not shown the words said about him to be false, nor did he show any malice on the part of defendant.

While we are inclined to agree with these determinations made by the trial judge, we need not definitively pass on them since we conclude these communications between plaintiff’s former employer and prospective employers enjoy a conditional or qualified privilege. As such, the words are not actionable when made in good faith for legitimate purposes.

Although the question of a conditional privilege attaching to statements made by a former employer to an inquiring prospective employer seems to be res nova in Louisiana, the doctrine finds ample support in other jurisdictions. See Ecuyer v. New York Life Ins. Co., 101 Wash. 247, 172 P. 359 (1918); Childs v. Erhard, 226 Mass. 454, 115 N.E. 924 (1917); Edwards v. James Stewart & Co., 82 U.S.App.D.C. 123, 160 F.2d 935 (1947); Burns v. Barry, 353 Mass. 115, 228 N.E.2d 728 (1967); Duncantell v. Universal Life Insurance Company, 446 S.W.2d 934 (Tex.App. 14th Dist., 1969). We note the following language found in 50 Am.Jur.2d § 273 at page 791:

“It is an established general rule that a communication respecting the character of an employee or former employee is qualifiedly privileged if made in good faith by a person having a duty in the premises to one who has a definite interest therein, and this is true even though the communication contains a charge of crime. So long as good faith is present, the person making the statement is not limited to facts that are within his personal knowledge, but may, and should, pass on to his inquirer all relevant information that has come to him, regardless of whether he believes it to be true or not.”

Furthermore, the communication with respect to the character and qualifications of a former employee “may be made to any person who has a legitimate interest in the subject matter thereof, such as a prospective employer, . . .”50 Am.Jur.2d § 275, p. 793. (emphasis ours) See also 53 C.J.S. Libel and Slander § 107.

The reason for this privilege is evident and is well enunciated by the Supreme Court of Rhode Island in Swanson v. Spiedel Corporation, 110 R.I. 335, 293 A.2d 307 (1972) at page 310, wherein the court states:

“We believe that the public interest requires that the protection of the privilege be accorded to a communication by a former employer to a prospective employer with regard to a former employee’s work characteristics where the publisher acts in good faith and has reason to believe that to speak out is necessary to protect ‘ * * * his own interests, or those of third persons, or certain interests of the public.’ By giving such information in good faith to other employers protects the publisher’s own interests by insuring that he may seek and receive the same information when about to hire new employees.”

We feel that it would be an undue burden to place on employers and would hopelessly hinder the free exchange of opinion between them if the law did not afford some form of protection. To hold otherwise would either tend to stifle communication of qualification and character evaluations, inherently subjective in nature, or alternatively, would breed deception in its wake. This we cannot condone as we feel community and societal interest dictate otherwise.

Of course, such privilege is not absolute, and as such, necessarily has its limits. It can be abused. Prosser, in his treatise Law of Torts, Chapter 19, § 115, points out that such privilege will be lost if published by a defendant in the wrong state of mind. While published with “malice” is the term often used to denote cases of abused privilege, Prosser points out that this is somewhat of a misnomer. Rather, citing Restatement of Torts, § 603 as his authority, he states that the privilege should be lost if the publication is not made primarily for the purposes of furthering the interest which is entitled to protection.

In the instant case, defendant’s employees communicated with prospective employers in good faith an honest evaluation of plaintiff in the interest that they in the future should receive the same if it were requested. We find no other motive, either express or by implication. Thus, we find no abuse by defendant of its conditional privilege in discussing plaintiff’s character and qualifications insofar as they reflect on his duties as an employee, with those who had a legitimate interest therein.

Accordingly, for the above and foregoing reasons, the decision of the trial court is affirmed. Plaintiff-appellant is cast for all costs of these proceedings.

AFFIRMED.


text:
    Max H. DURHAM, Jr. v. The FIRST GUARANTY BANK OF HAMMOND et al.
    No. 10678.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Writ Refused July 2, 1976.
    Herschel L. Abbott, Jr., New Orleans, for appellant.
    Tom H. Matheny, Hammond, for appel-lees.
    Before ELLIS, BLANCHE and LOTTINGER, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, Max H. Durham, Jr., appeals a judgment in favor of defendant and plaintiff-in-reconvention, The First Guaranty Bank of Hammond, Louisiana, for $12,103, with interest at 10 percent on $17,000 from January 30, 1972, until paid, and for attorney’s fees of 25 percent of principal and interest due, and for all costs.

This litigation arose when plaintiff sued for a writ of mandamus directing the Clerk of Court and Ex-Officio Recorder of Mortgages, Parish of Tangipahoa, Louisiana, to erase from Book 234, Folio 21 of the public records a $20,000 collateral mortgage executed by the plaintiff in favor of the defendant bank and directing the defendant bank to return said mortgage document to the plaintiff. The bank reconvened against the plaintiff, praying for recognition of its rights under the mortgage and for judgment in its favor on a promissory note it contends is secured by said mortgage.

The bank, in brief and in oral argument, acknowledges that the only issue facing this court is the effect of the collateral mortgage and collateral mortgage note executed by plaintiff on May 3, 1972.

The bank contends that said collateral mortgage secures a $17,000 promissory note owed to it by the partnership composed of the plaintiff, Max H. Durham, Jr., and Sidney H. Lazard. The $17,000 note was executed on November 3, 1971, by Guy W. Smith under a power of attorney from Lazard.

The existence of said note is not questioned. However, the plaintiff contends that the collateral mortgage and note which he subsequently executed on May 3, 1972, does not secure said $17,000 note.

Prior to trial the parties entered into an agreement whereby the collateral mortgage was cancelled and the property subject thereto was sold and the proceeds escrowed awaiting a final determination of their respective rights.

Without recorded reasons, the trial judge found in favor of the bank and rendered judgment for the balance due on the note, $12,103. As previously noted, the bank contends that the only issue on appeal is whether the collateral mortgage note secures the $17,000 note. If so, the bank is entitled to the balance due on the note, and the judgment of the trial court must be affirmed. If, to the contrary, the $17,000 note is not secured by the collateral mortgage note, the plaintiff is entitled to the entire proceeds from the sale of the property.

The collateral mortgage executed by the plaintiff is in authentic form, payable on demand to any holder, and contains the following pertinent language:

“This is a collateral note secured by a collateral mortgage to secure future advances made by the holder or future holders. It may be pledged as collateral security for any hand note or notes, which shall govern the terms, time of payment, interest rate and all other conditions set forth therein. Said note may be issued and re-issued for collateral purposes, without confusion.” (Defendant’s Exhibit-4)

Thereafter, the description of the mortgaged property is set forth.

Contemporaneous with the above mortgage, plaintiff executed a $20,000 demand note in favor of the bank, bearing interest at the rate of 10 percent per annum, duly paraphed “ ‘Ne Varietur’ For identification with an Act of Collateral mortgage passed before me this 3rd day of May, 1972” by Henry A. Mentz, Jr., Notary Public.

It is undisputed that the $20,000 promissory note is secured by the collateral mortgage and that after signing the mortgage and note, the plaintiff pledged the note secured by the mortgage to the bank.

In conjunction with the above-described mortgage, the plaintiff, on November 9, 1972, executed a note in favor of the bank for $3,500, which contained the notation:

“This note is secured by the pledge and/or assignment of securities and collateral which has previously been deposited with said bank or as follows: $20,000 Collateral mortgage dated 5-3-72.”

(Defendant’s Exhibit-5)

Plaintiff repaid said loan and the $3,500 note was marked “Paid” on January 15, 1973.

The bank was certainly aware of the procedure to be followed when securing a debt by a collateral mortgage, as the manner in which the $3,500 note was connected to and secured by the collateral mortgage note conformed to the accepted practice. As evidenced by the language contained in the note itself, the “hand note,” as the $3,500 note is commonly called, was secured by the pledge of the $20,000 mortgage note, which, in turn, was secured by the mortgage of the property specified therein. See “The Collateral Mortgage,” Nathan and Marshall, 33 La.L.Rev. 497, at pp. 501-2.

The accepted method to connect the hand note to the security of the collateral mortgage is to designate on the face of the hand note that it is secured by the pledge of the mortgage note. See Slidell Building Supply, Inc. v. I. D. S. Mortgage Corporation, 273 So.2d 343 (La.App. 1st Cir. 1972); writ refused, 274 So.2d 708 (1973).

However, the $17,000 note sued upon in the instant case does not contain any such reference to the collateral mortgage and note. There is absolutely no connexity between it and the mortgage security.

We note also that the language of the mortgage itself sets forth that it is given “to secure future advances made by the holder or future holders.” Since the mortgage was executed six months after the execution of the $17,000 note, the very language of the mortgage indicates that it was not given as security for the pre-exist-ing $17,000 debt. It is true, however, as the bank argues, that a collateral mortgage can be given for a pre-existing debt; but if such was the case herein, the bank failed to show the connection between the note and the mortgage. It would have been a simple matter to make reference in the mortgage note to the fact that it was being pledged as security for the pre-existing $17,000 note but the bank failed to do so.

In fact, the bank’s representative at trial, Randall Burris, acknowledged that while the bank indicated on its ledger that the plaintiff’s $3,500 note was collateralized by the $20,000 mortgage of May 3, 1972, there was no collateralization listed for the $17,000 note (see bank’s exhibits 4 and 5). Therefore, by its own admission, the bank acknowledged that the subject note was not secured by the plaintiff’s collateral mortgage note.

The pledge of a collateral mortgage note to secure an indebtedness is a contract, LSA-C.C. Art. 3133. The pledge secures only that debt or debts contemplated in the contract between the pledgor and pledgee. See Smith v. Shippers’ Oil Co., 120 La. 640, 45 So. 533 (1908); Teutonia National Bank of New Orleans v. H. Loeb & Co., 27 La.Ann. 110 (1875); Syndics of Yard & Blois v. Mechanics’ and Traders’ Bank, 8 La. 480 (1835).

In light of' the foregoing authorities, we have searched in vain to find a contractual connection between the $17,000 indebtedness and the collateral mortgage note. Obviously, the bank was also painfully aware of this deficiency as it futilely attempted to draw an oral admission from the plaintiff that one of his purposes in executing the collateral mortgage was to secure the preexisting $17,000 indebtedness. However, the plaintiff steadfastly denied that such was the case, and furthermore contended that the instruments themselves were the best evidence that such was not the intentions of the parties.

Because of their very nature and function, security devices should be strictly construed. See Thrift Funds Canal, Inc. v. Foy, 242 So.2d 253 (La.App. 4th Cir. 1970), affirmed, 261 La. 573, 260 So.2d 628 (1972). Yet, even a liberal interpretation of the instant collateral mortgage and accompanying note would not convince this court that the note sued upon was connected to and secured by said collateral mortgage.

For the above and foregoing reasons, the judgment of the trial court is hereby reversed and set aside; and it is ordered, adjudged, and decreed that there be judgment in favor of the plaintiff, Max H. Durham, Jr., recognizing his right to the escrowed funds herein, free from any security claim by the defendant, The First Guaranty Bank of Hammond, and further judgment dismissing the reconventional demand of said defendant. All costs are to be paid by defendant, The First Guaranty Bank of Hammond.

REVERSED AND RENDERED.


author: PONDER, Judge.

text:
    Clarence L. MURPHY v. HURDLE PLANTING AND LIVESTOCK, INC. and Lamar Golman.
    No. 10679.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Writ Refused July 2, 1976.
    Charles W. Wilson, III, Baton Rouge, for appellant.
    George L. Clauer, III, Baton Rouge, for appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appeals from a judgment dismissing his suit on grounds of abandonment.

Clarence L. Murphy, through his attorney, Lee C. Grevemberg, filed suit on November 22, 1968, claiming personal injuries and property damages arising from an automobile accident. The defendants are Hurdle Planting & Livestock Co., Inc. (hereafter Hurdle), and Lamar Golman. Hurdle filed answer and interrogatories on January 6, 1969. No service of citation was made on Golman, who had moved from the address where he lived at the time of the accident; plaintiff heard that Golman had moved to St. Francisville but did not find out where. Later he heard that Golman lived near Jackson, Louisiana, but did not secure a more exact address at that time. Despite a stipulation to the effect that plaintiff had been represented by only Mr. Grevemberg and Mr. Wilson, a motion to set for trial signed by David L. Dawson on behalf of plaintiff was filed on January 4, 1974. The attached order was not signed by the judge. On February 3, 1975, an order was signed by the judge allowing Mr. Dawson’s withdrawal as counsel of record for the plaintiff. On February 26, 1975, Mr. Grevemberg was replaced by Mr. Charles W. Wilson, III, as counsel for the plaintiff. On May 23, 1975, service was effected on Golman for the first time. On June 10, 1975, and June 26, 1975, the court approved extensions of time within which to plead filed by counsel for Lamar Golman. On July 11, 1975, a motion to dismiss was set for hearing on July 31, 1975. On August 11, 1975, judgment was signed, dismissing plaintiff’s suit at his costs.

L.S.A.C.C.P. Art. 561 reads in pertinent part as follows:

“An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.”

We believe the case of Bolden v. Brazile, La.App., 172 So.2d 304 and McClure v. A. Wilbert’s Sons Lumber & Shingle Co., La.App., 232 So.2d 879 to be controlling here.

In the latter case, the court said at page 884:

“A step in prosecution within the abandonment provisions of Article 561, above, means a formal move or action before the court designated to hasten the matter to judgment. State Through Department of Highways v. Jackson, La.App., 211 So.2d 93; Bolden v. Brazile, La.App., 172 So.2d 304.
Appellants maintain their action in causing an attorney to be appointed for absent heirs on November 23, 1965, is a step in prosecution which prevents application of the abandonment statute herein. The contention is without merit inasmuch as none of the absent defendants concerned were among the 25 who have not yet been served with process. Assuming appointment of counsel to represent the absent heirs was a step in prosecution as argued by appellants it is to no avail as to the remaining defendants in an ordinary action against whom no steps were taken. Bolden v. Brazile, above. In Bolden, Texaco, Inc. and twelve of its landowning lessors were sued individually. Texaco alone was served with process and removed the matter to the Federal Court. Defenses were raised by Texaco in the Federal Court and the matter ultimately remanded to the state court where plaintiffs filed motions to try certain exceptions filed by Texaco in the Federal Court. When more than five years elapsed after filing of the suit, without the remaining twelve defendants having been served with process, Texaco moved to dismiss the action as to all parties for abandonment. The court dismissed, the action as to the twelve unserved defendants holding that the setting of exceptions for trial was a step in prosecution as to Texaco but not as to the twelve defendants who had not been served. We concur with this pronouncement.”

Pretermitting the question of the authority of Mr. Dawson’s appearance, it was still ineffective as to Mr. Golman, since service had not been effected on him. The five years required to constitute abandonment begins to accrue at the time of filing, not when citation is made, and any steps taken to “hasten the matter to judgment” are ineffective as to defendants not served. Bolden v. Brazile, supra and McClure v. A. Wilbert’s Sons Lumber & Shingle Co., supra.

Although the judgment of dismissal was of the entire suit, the motion to dismiss was made by only Lamar Golman and only on his own behalf. The judgment will therefore be amended to dismiss the suit as to Lamar Golman only.

AMENDED AND AS AMENDED, AFFIRMED.


text:
    John H. MORGAN, Ind. v. MATLACK, INC., et al.
    No. 10689.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Writ Granted Sept. 8, 1976.

      Chapman L. Sanford, Baton Rouge, for plaintiff-appellant.
    Frank M. Coates, Jr., Baton Rouge, for Cumis Ins. Society.
    James A. George, Baton Rouge, has Mat-lack, Inc. and Rollins International.
    Anthony J. Clesi, Jr., Baton Rouge, for State Farm Mut. Auto. Ins. Co.
    Joseph F. Keogh, Parish Atty., and A. Foster Sanders, III, Asst. Parish Attorney, Baton Rouge, for Parish of East Baton Rouge.
    Lawrence A. Durant, Atty. for Dept, of Highways, Baton Rouge, for Dept, of Highways.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, John H. Morgan, individually and as the administrator of the estate of his minor son, Dan Morgan, appeals the granting of a summary judgment in favor of defendant-appellee, Cumis Insurance Society, Inc. We affirm.

On November 3, 1973, Dan Morgan was injured while rjding as a guest passenger in a Volkswagen automobile owned by I. 0. Mestayer and driven by Robert G. (Glen) Gutierrez.

Plaintiff sued Cumis, insurer of the Mestayer vehicle, contending that Gutierrez was an omnibus insured under their policy.

Cumis moved for and was granted a summary judgment on the grounds that Gutierrez was driving the car without the permission of the named insured, I. O. Mestayer, and consequently that Gutierrez was not an insured under the policy.

Plaintiff has appealed, contending that the granting of the summary judgment was erroneous since, contrary to the findings of the trial judge, there were genuine issues of material fact concerning whether or not Gutierrez had the permission of the named insured. Under LSA-C.C.P. Art. 966, a movant is not entitled to summary judgment where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is a genuine issue as to material fact.

The insurance policy provides under the heading “Persons Insured”:

“* * * Under the Liability and Medical Expense Coverages, the following are insureds:
“(a) with respect to an owned automobile,
“(1) the named insured,
“(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and
“(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a) (1) or (2) above * * *”

The “named insured” in the policy is I. O. Mestayer.

In support of its motion, Cumis introduced the affidavits of I. O. Mestayer and his son, Christopher, who was the principal operator of the vehicle.

The affidavits show that I. O. Mestayer expressly instructed his son never to allow anyone else to drive the subject automobile. Young Mestayer’s affidavit indicated that he was aware that he could not let anyone else drive the automobile, but he admitted that he did lend it to Gutierrez.

In opposition to the motion, plaintiff filed the affidavit of Gutierrez and the depositions of I. O. and Christopher Mes-tayer.

The crux of Gutierrez’ affidavit is that his sole purpose in driving the automobile was to accommodate young Mestayer and Morgan. On the night of the accident the young people were attending a bonfire party on the Mississippi River levee south of Baton Rouge, Louisiana. Gutierrez avers that Mestayer, who was one of the persons in charge of the party, offered to purchase beer for Morgan. However, Mestayer refused to lend Morgan the Volkswagen to go for the beer since there was some question about whether he had a driver’s license. Since Gutierrez had a license, Mestayer allowed him to drive Morgan to a nearby convenience store to make the purchase. It was on this trip that young Morgan was injured.

The depositions of both Mestayers reveal nothing in conflict with the foregoing, and it is clear that Christopher Mestayer did not have the permission of the named insured to lend the automobile to Gutierrez. It is also clear as a matter of law that young Mestayer, as first permittee with express instructions not to lend the vehicle, could not elevate Gutierrez, as second per-mittee, to the status of an insured within the omnibus clause protection of Cumis’ policy, Smith v. Insurance Company of the State of Pennsylvania, 161 So.2d 903 (La.App. 1st Cir. 1964).

However, plaintiff contends that young Mestayer was, for all practical purposes, the named insured under the policy since he had complete dominion and control over the vehicle. Accordingly, he argues that the young Mestayer, being in the position of the named insured, had authority to grant permission to Gutierrez to drive the vehicle, notwithstanding the fact that he was forbidden to do so by his father. In support of the foregoing argument, plaintiff relies upon American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969).

In Czarniecki, a stepfather, as named insured, granted his stepson permission and authority for use of an insured automobile that was so broad and so free of restrictions that the Court found that the stepson had been delegated whatever authority the named insured had to grant permission to another to drive the car. Additionally, it was uncontested that the stepson paid for the automobile and the cost of its maintenance and operation was entirely borne by him from his earnings. The Court found that the stepson, for all practical purposes, was the named insured under the policy.

In contrast to Czarniecki, the facts of the instant case clearly do not support a finding that young Mestayer had full control and responsibility for this insured vehicle. The depositions of I. O. and Christopher Mestayer conclusively show that young Mestayer was answerable to his parents at all times for his use of the vehicle; the vehicle was paid for by his father; all gasoline and maintenance therefor was paid for by his father; and the primary purpose for the ownership of the vehicle was to remove from Mrs. I. O. Mestayer’s shoulders the burden of transporting young Christopher and his sister to and from school. The facts of the instant case show that the insured vehicle was in reality for the convenience of the named insured and not for the convenience of young Christopher. In view of this evidence, young Mestayer was not, as a matter of law, a named insured under the rationale of the Czarniecki case.

The plaintiff also argues that the second permittee, Gutierrez, did not borrow the car but rather drove the car on a mission for young Mestayer, a first per-mittee, and, therefore, he was covered under the policy’s omnibus clause. However, where the first permittee is without authority to allow a second permittee to drive an insured automobile, the actions of the second permittee, as a matter of law, must be for the benefit or advantage of the named insured before the second permittee is covered by the omnibus insured clause, Devall v. State Farm Mutual Insurance Company, 249 So.2d 282 (La.App. 1st Cir. 1971).

The record reflects that the named insured herein, I. O. Mestayer, received no benefit or advantage from the actions of Gutierrez. Instead, it was the first permit-tee, Christopher Mestayer, and his friend, Dan Morgan, who were to benefit by Gutierrez’ driving the insured vehicle.

We are aware that a motion for summary judgment should never be used in lieu of a trial on the merits, but in the instant case, contrary to plaintiff’s contentions, a trial on the merits would only result in a reexamination of facts already before the Court.

All of the evidence bearing upon Gutierrez’ coverage under the omnibus clause of the instant'policy has been presented. The record contains the affidavit of the second permittee-driver, Gutierrez, plus the affidavits and depositions of both the named insured and the first permittee.

Based upon this evidence, we agree with the trial judge that there are no genuine issues of material fact. Young Mestayer acknowledged that he was expressly forbidden by the named insured to lend the vehicle to anyone. He also did not have such control over the vehicle so as to become, for all practical purposes, the named insured. The facts also do not support a finding that Gutierrez was on a mission for the benefit or advantage of the named insured.

Since a trial on the merits would not add to what is already before the court, these litigants should be relieved of the further delay and expense occasioned by such a trial, Greenup v. Barney, 315 So.2d 910 (La.App. 4th Cir. 1975).

Whereas, there are no material issues of fact or law herein to warrant the denial of summary judgment in favor of mover, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Ivy J. THIBODEAUX et ux. v. Albert J. SALASSI et al.
    No. 10692.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.

      Edward James Gaidry, Thibodaux, for appellants.
    James C. Walker, Jr., Houma, for appel-lees.
    Before SARTAIN, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiffs filed suit to have the boundary between their and defendants’ properties judicially established. After trial on the merits, judgment was rendered in favor of plaintiffs. On application of defendants, a new trial was granted for the purpose of argument only.

After consideration thereof, the trial court set aside the original judgment and rendered judgment in favor of defendants. From that judgment plaintiffs now appeal.

Plaintiffs are owners of a tract of land in Terrebonne Parish. The pertinent acts of sale by which the plaintiffs acquired this tract contain the following property descriptions:

A tract of land, comprised in Sections 56, 57, 85, 86, and 89, T-16-S, R-17-E, measuring a front of three-fourth (24) arpent, more or less, on the Bayou Co-teau Public Road by full depth to a line drawn parallel to Bayou Terrebonne at thirty arpents therefrom (commonly known as the Thirty Arpent Line), the upper and lower lines of said tract being parallel to a certain ten foot canal or ditch located below said tract and commonly known as the Pelia Ditch, the lower line of said tract being at one and one-half arpents from the center of said Pelia Ditch and parallel thereto; bounded above by property allotted to Gillis LeBoeuf and others, below by property of Delien Kraemer, in the rear by property of Dupont Realty Co. and/or Irene Wallace or assigns, and in front by the Bayou Coteau Public Road; together with all buildings and improvements thereon. (Emphasis supplied)
A tract of land, comprised in Sections 56, 57, 85, 86, and 89, T-16-S, R-17-E, measuring a front of three-fourths (24) arpent, more or less, on the Bayou Co-teau Public Road by full depth to a line drawn parallel to Bayou Terrebonne at thirty arpents therefrom (commonly known as the Thirty Arpent Line), the upper and lower lines of said tract being parallel to a certain ten foot canal or ditch located below said tract and commonly known as the Pelia Ditch, the lower line of said tract being two and one-half arpents from the center of said Pelia Ditch and parallel thereto; bounded above by property of Dauvellien Le-Boeuf, below by property allotted to Car-melite Kraemer LeBoeuf Countiss, in the rear by property of Dupont Realty Co. and/or Irene Wallace or assigns, and in front by the Bayou Coteau Public Road; together will all buildings and improvements thereon. (Emphasis supplied)

These tracts were acquired from the heirs of Aubin LeBoeuf, vendee of the late Senator Allen Ellender. That transaction from Ellender to LeBoeuf contained the following description:

A certain tract of land situated in the Parish of Terrebonne, La., at a distance of about three miles from the City of Houma, measuring a front of one and one-half arpent (l'i/¿) on the northern boundary line of the property of vendor, or on the proposed public road leading from the Houma-Raceland Road westerly along the Bayou Coteau, by full depth to a line drawn parallel to Bayou Terre-bonne at thirty (30) arpents therefrom being about twenty-seven to thirty ar-pents more or less; the upper and lower lines of said tract herein sold being parallel to a certain ten foot canal or ditch located below said tract and commonly known as the Pelia Ditch, the lower line of said tract being at one and one-half arpent from the center of said Pelia Ditch and parallel thereto; bounded above or west by property of Dauvelian LeBoeuf, below or east by other property of vendor and in front or north by property of Dr. Thos. Stork or assigns. (Emphasis supplied)

Defendants are owners of lots in Tall Timbers Subdivision. This subdivision was carved from the estate of Dauvelian LeBoeuf, who likewise acquired his property from Senator Ellender, described in that act of sale to Dauvelian LeBoeuf as follows :

A certain tract of land situated in the Parish of Terrebonne, La., at a distance of about 3 miles from the City of Hou-ma, measuring two arpents front on the proposed public road, leading from the Houma-Raceland road westerly, along said Bayou Coteau, by depth to a line drawn parallel to Bayou Terrebonne, at thirty arpents therefrom, being twenty five arpents, more or less, the upper and lower lines of said tract being parallel to a certain ten foot ditch or canal located below said tract and commonly known as the Pelia Ditch or canal; the lower line of the tract herein conveyed begins at three arpents from the center of said Pe-lia ditch or canal; bounded above and below by other lands of vendor. (Emphasis supplied)

Senator Ellender was thus the common ancestor in title of plaintiffs and defendants. The acquisition, from a Mr. Lirette, of the original 8 arpent tract by Senator Ellender describes that tract as follows:

A certain tract of land, situated in the Parish of Terrebonne, La. back of and adjoining the thirty arpent line separating it from the front lands of the vendor herein and Nicholas Lirette; said tract containing a superficial area of about one hundred and seventy acres more or less, and bounded as follows, to-wit: in front by said thirty arpent line, above by the rear lands of Nicholas J. Lirette, in the rear or north by the rear lands fronting on the Bayou Blue, and below by what is known as the Bocage Line, running in the Center of what is known as the Pelia Ditch, running N 66 degrees East; said tract having a width of eight arpents, more .or less, between parallel lines, starting at the said Pelia Ditch, which runs N 66 degrees east. (Emphasis added)

It can be seen from the above and foregoing property descriptions that the northern and southern boundaries (generally east-west running lines) of all the tracts mentioned were set in the descriptions as lines parallel to and at certain distances (arpents) from the Pelia Ditch. It can be noted further that only in the acquisition by Senator Ellender from Lirette was a course bearing mentioned for the Pelia Ditch.

As the record reflects, the dispute herein narrows to a single issue: should the boundary in question be determined in reference to (or parallel to) a line having a course bearing of N 66 degrees E or in reference to the Pelia Ditch as it exists in fact ? The problem arises because, although the Pelia Ditch for some 1900 feet back from the public road on Bayou Co-teau does run on a bearing of N 66 E (actually the back azimuth thereof to the southwest), the ditch turns slightly upward to the northwest at a cross canal and continues on for another 1300 feet in that direction before it vanishes. Therefore, depending on how it is determined, the boundary in question either will be a straight line paralleling the N 66 E bearing, or will dogleg slightly to the right and upward at a point just past the cross canal, paralleling exactly the Pelia Ditch.

The subdivision lies above and contiguous to plaintiffs’ tract. The boundary as set forth on the plat of Tall Timbers Subdivision was set in reference to the N 66 E bearing. Plaintiffs contend this causes parts of the southern lots to encroach on their land. The court-appointed surveyor made his proces verbal, which coincided with the boundary as set forth on the subdivision plat, and the trial court determined the boundary accordingly.

The plaintiffs maintain that the court-appointed surveyor failed to follow the guidelines of the Civil Code for the boundary action and that the trial court erred in determining the boundary according to his survey.

We agree.

The principles of law applicable to the boundary action are found in Title V of Book 2 of our Civil Code—“Of Fixing The Limits, And Of Surveying Lands.”

Included therein are the following articles relevant herein:

Art. 835. If the parties thus notified, their representatives or attorneys in fact, appear at the fixing [of] the limits, the surveyor appointed for the purpose is hound to demand of them their respective title papers, which they are bound to deliver to him in good faith, if they have them in their possession, in order that the surveyor may determine, by examining them, in what place to fix the boundaries.

If the parties thus notified, or their representatives or attorneys in fact, refuse to deliver their title papers, the surveyor shall make mention of their refusal in his proces verbal, and of the causes they have alleged, if they have assigned any, for their refusal.

Art. 843. In matters of limits, reference must be had to ancient titles, unless it be proved that the bounds have been since changed, or that the land has been increased or diminished by changes caused by successions, by the will of the owner or by other events.

Art. 844. When an owner has alienated one of two estates, which belonged to him, and the ownership of any part of it is contested, the limits assigned to it by the vendor at the time of the sale, must be consulted. The limits anciently subsisting between the two estates, must not be regarded, because the designation, which the vendor makes of the metes and bounds, forms new limits between the two estates, or between the parts of them which he has sold.

Art. 845. The limits must be fixed according to the respective titles of the parties; in absence of title, on both sides, possession governs.

According to Article 835, the substantive starting point for the court-appointed surveyor is the titles of the respective parties.

Articles 843 and 844 are to be read together: the surveyor must refer to boundary descriptions as set out in earlier titles out of which have come the titles sub judice, except where, for various reasons, the boundaries have been since changed. Article 844 amplifies one instance where boundaries clearly may be changed; that is, where the owner re-sells one of two estates or parts of one estate. Where an owner sells a part of his estate, he necessarily must designate at least one new boundary, and possibly more. In such a case, reference must not be made to the previous boundaries which conflict with the new ones. The sale by the owner giving different boundaries destroys any right in subsequent purchasers to claim under ancient limits. Bourguignon v. Boudousquie, 6 Mart. (N.S.) 697 (La.1828).

Article 845 simply allows the surveyor to consider possession of the parties to establish the boundary, but only where no title exists.

We hold that the court-appointed survey- or violated the above stated principles in two respects. We quote from his proces verbal at page 7:

However, we believe, that when you consider the references in the titles, particularly the description in the sale from Lirette to Allen J. Ellender, which is the original of everyone’s title in this 8 ar-pent area fronting on- Bayou Coteau, where they reference the Pelia Ditch from Bayou Coteau as the lower line, and call for a straight line and bearing of N 66 E, and also considering the existing possession that extends at least 11 arpents up Bayou Coteau from this area in equation and about 2,830 feet more or less, west of Bayou Coteau; therefore, we have formed this as our survey and proces verbal, and state at this time that from the evidence we find, that this firm would set the boundary between the parties involved, as that of the existing Tall Timbers Subdivision, .

Initially, reference was made to the description in the sale from Lirette to El-lender, and in particular to the course bearing of N 66 E. This was error. Neither sale by Ellender to the two LeBoeufs mentions a course bearing, but references the boundaries solely to the Pelia Ditch. There is in fact a difference between a continuous course bearing of N 66 E and the route of the Pelia Ditch. There is nothing in the record by which we might determine the intent of the late Senator other than the acts of sale themselves. We must assume that, by making reference to the Pelia Ditch and omitting the additional course bearing, he intended that ditch in fact to delineate the various northern and southern borders by reference thereto. Therefore, reference to and reliance on the course bearing by the court-appointed surveyor clearly was erroneous as a matter of law.

Secondarily, and as shown also by the quoted excerpt from the proces verbal, the surveyor considered possession (possession, we note, not only of the parties involved, but also of various other landowners in the general area) where title clearly existed. By the terms of Article 845, this also was error.

We note at this point that this court is not unaware of the fact that the Pelia Ditch disappears as a landmark before reaching the Thirty Arpent Canal, the back or western boundary to the properties in question. The extrapolation from that point to the back boundary is a matter within the sphere of civil engineering, and not of the Civil Law. But where, as we have previously noted, the Civil Law does speak, those legal principles must necessarily supercede the rules and procedures of other institutions and other professions, for our law forms the framework within which and because of which the various components of our society may operate harmoniously.

Lastly, defendants rely on the presumption that the court-appointed surveyor is correct in his recommendations. That presumption obtains only where the surveyor follows the applicable Codal provisions and employs jurisprudentially accepted surveying methods. Edmonston v. Badeaux, 242 So.2d 58 (La.App. 1st Cir. 1970); Sharpless v. Adkins, 16 So.2d 556 (La.App. 2nd Cir. 1943).

We now turn to the evidence adduced by plaintiffs. At the instance of plaintiffs, Robert Reed, Civil Engineer, made a survey to determine the boundary in question. His testimony at trial established that the procedures he employed were consistent with those noted supra.; that is, he determined the boundary by reference to the actual course of the Pelia Ditch rather than to the N 66° E course bearing. At that point where the Pelia Ditch ceased as a landmark, Reed testified that he then connected that point with a point on the back or western boundary marked by a railroad iron. The remainder of the boundary was then established parallel to and at the designated distance from this straight line extrapolation.

The railroad iron had been located in an earlier survey by Robert Wright, Civil Engineer. He testified that he had determined the iron, or rail, as marking the lower back or southwest corner of the August Kraemer property, which bounds the Thibodeaux property on the south. Wright stated that he was satisfied that the railroad iron had been set in a projection of the Pelia Ditch because (1) it was on line with the center of the ditch coming east from Bayou Terrebonne toward the 30 arpent canal and (2) the beginning of the 30 arpent canal coincided satisfactorily with the location of the railroad iron, indicating that the iron was considered the lower corner (since the 30 arpent canal was designated as the rear boundary in all titles out of Senator Ellender). Wright had likewise tracked the Pelia Ditch exactly to the point of disappearance to establish the boundary to that point from the Bayou Coteau Road.

The foregoing testimony establishes that Reed and Wright made their surveys in accordance with applicable codal provisions and reasonable surveying methods and procedures.

For the reasons assigned, the judgment of the trial court is reversed and set aside, and it is now ordered that the boundary herein be and it is hereby fixed according to the map of survey by Robert Reed dated July 3, 1973 (plaintiffs’ exhibit #4).

Costs of the proceedings in the trial court are to be borne equally by plaintiffs and defendants; costs of appeal are taxed against defendants.

REVERSED AND RENDERED.


text:
    McCRORY CORP. v. Shepard M. LATTER, d/b/a the Commerce Building, et al.
    No. 10666.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976,
    Writ Refused July 1, 1976.
    P. A. Bienvenu, John W. Waters, Jr., Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for appellant.
    Frank P. Simoneaux, Breazeale, Sachse & Wilson, Baton Rouge, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff-McCrory Corporation leased from defendant, Shepard M. Latter d/b/a The Commerce Building certain property located on the corner of Laurel Street and Riverside Mall in the City of Baton Rouge. On October 14, 1971, a pipe located in the basement area adjacent to the property leased by plaintiff burst, causing water to flow into the leased premises. The adjacent property, although not leased to plaintiff, was owned by the defendant and leased to another not a party to this suit. Suit was filed on August 20, 1973, against the defendant and his liability insurer, Maryland Casualty Company, for damages caused by the intrusion of water into the leased premises.

A peremptory exception was filed by defendant, Maryland Casualty Company, pleading that the prescriptive period applicable to action ex delicto applied and that more than one year had elapsed from the date of the damage to the date of filing suit and, accordingly, that plaintiff’s claim had prescribed. The trial judge overruled the peremptory exception, and after a trial on the merits, in accordance with a stipulation of the parties even as to the amount of judgment, awarded judgment in favor of plaintiff and against defendants, in soli-do, for the sum of $41,131, together with legal interest thereon from date of judicial demand and for all costs. From this judgment the defendants have perfected this appeal. We affirm.

The only issue on appeal is the failure of the trial judge to sustain the defendant’s plea of prescription.

Plaintiff alleges that the defendant-lessor breached paragraph 12 of the lease agreement, which reads as follows:

“That, at Landlord’s own cost, Landlord shall at all times during the term: keep the basement (if any) of the leased premises waterproof and keep the exteri- or (including, but not limited to, roof, skylights, gutters, leaders, and abutting walks) in good repair; make all necessary repairs of a structural nature, as well as all alterations and changes required by any present or future law or ordinance or by any public authority having jurisdiction, unless due to changes created by Tenant. Landlord agrees to repair all damage in and about the interior and exterior of the demised premises, resulting from defective construction or settlement of the building. Landlord agrees to make all repairs in and about the demised premises (both interior and exterior) made necessary by reason of work performed or other activities engaged in by the Landlord or others in any portion of the building not rented to Tenant, or due to leaks or seepage from any portion of the building not leased to Tenant, or due to leaks from plumbing or utility lines (whether within or without the leased premises), unless the necessity for such repairs is due to Tenant’s fault or neglect, or the installation from which the leak arises was made by Tenant.” (Record, p. 6— Emphasis ours)

The defendants argue that the lease does not contain a provision to impose responsibility upon defendant for the claimed damage to its merchandise and other movables as set forth in the stipulation between the parties. These claimed damages are those occasioned to the stock, supplies and equipment, as well as those occasioned by inconvenience for the flooding such as services for clean-up. Thus, it is argued that they are not such damages as contemplated by paragraph 12, as that paragraph in the lease provisions is nothing more than a covenant to repair, and the damages claimed are those occasioned by the failure to repair and as such are ex delicto and prescribe in one year.

It is true that the foregoing clause contained a covenant to repair since it states:

“ * * * Landlord agrees to make all repairs in and about the demised premises * * * due to leaks or seepage from any portion of the building not leased to Tenant, or due to leaks from plumbing or utility lines (whether within or without the leased premises) * * (Record, p. 6)

However, the same paragraph also provides :

“That, at Landlord’s own cost, Landlord shall at all times during the term: keep the basement (if any) of the leased premises waterproof * * (Record, p. 6)

We do not view this latter provision as a mere covenant to repair. If it means what it says, it is an obligation to keep the basement waterproof. The failure of this obligation is not only a breach of the contract but is also a breach of the landlord’s statutory obligation to maintain the lessee in the peaceable possession of the leased premises during the continuance of the lease, LSA-C.C. Art. 2692, and to guarantee him against all of the vices and defects of the thing leased, LSA-C.C. Art. 2695. Thus, there was a breach of both the landlord’s contractual duty as well as the statutory duties imposed upon him by law.

Recently the Louisiana Supreme Court in Federal Insurance Company v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972), stated:

“It has been recognized by this Court on numerous occasions that when a party has been damaged by the conduct of another arising out of a contractural [sic] relationship, the former may have two remedies, a suit in contract, or an action in tort, and that he may elect to recover his damages in either of the two actions. In such cases, the prescription applicable is determined by the character which plaintiff gives his pleadings and the form of his action. * * * ” (263 So. 2d at 872)

Therefore, it is enough for us to decide that plaintiff brought its suit in contract, alleging that the contract was breached and that the damages which may be awarded are those sustained because of the other party’s default, LSA-C.C. Art. 1930. All of the damages here sued for are those which resulted from the landlord’s failure of his contractual duty to keep the basement waterproof.

The law is well settled that an action on a breach of contract prescribes in ten years, LSA-C.C. Art. 3544 and Federal Insurance Company v. Insurance Company of North America, supra.

For these reasons, we reject the defendants’ plea of prescription and affirm the decision of the trial court, at defendants’ costs.

AFFIRMED.

      . Defendant, Shepard M. Latter, died prior to trial, and Susan- R. Latter, executrix of his estate, was substituted as a party defendant by joint stipulation of counsel.

      . LSA-C.C. Art. 2692 provides:
      “The lessor is bound from the very nature of the contract, and without any clause to that effect:
      “1. To deliver the thing leased to the lessee.
      “2. To maintain the thing in a condition such as to serve for the use for which it is hired.
      “3. To cause the lessee to be in a peaceable possession of the thing during the continuance of the lease.”

      . LSA-C.C. Art. 2695 provides:
      “The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

      . LSA-C.C. Art. 1930 provides:
      “The obligations of contract [contracts] extending to whatsoever is incident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.”