text:
    Elaine Allen, wife of /and Marshall HURD, as head and master of the Community and as natural tutor of the minor child, Darrell Hurd and Carrine Cox, wife of/and Leon Cox v. Joseph E. TOUPS and Checker Cab Co., Inc.
    No. 7912.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.

      Seelig, Cossé & Frischhertz, David Seelig and Irvy E. Cossé, Jr., New Orleans, for plaintiffs-appellees.
    Pitard, Pitard & Porobil, Gregory M. Po-robil, New Orleans, for defendants-appellants.
    Before SAMUEL, SCHOTT and BEER, JJ.
   SAMUEL, Judge.

This is a suit for personal injuries, property damages and medical expenses resulting from a collision between the plaintiff automobile and a defendant taxicab. Plaintiffs are: Elaine Allen Hurd, the driver of the automobile; her husband, Marshall Hurd, who appears as head and master of the community and on behalf of their ten month old child, Darrell Hurd, who was injured in the accident; Carrine Cox, a passenger in the plaintiff car at the time of the accident; and her husband, Leon Cox, who appears as head and master of that community. Defendants are the driver of the taxicab and its owner.

Following trial on the merits, there was judgment in favor of plaintiffs and against the defendants, in solido, in the following amounts: Elaine Hurd, $2,000 for her injuries; Marshall Hurd, $618.50; Carrine Cox, $2,500 for her injuries; and Leon Cox, $350 for medical expenses for his wife. Defendants have appealed, and plaintiffs have answered the appeal.

While there is some relatively minor conflict in the testimony of the opposing witnesses, the trial judge substantially found, and we agree, that the facts regarding the occurrence of the accident were:

It occurred in the late afternoon of September 3, 1973 on Williams Boulevard in Kenner, Louisiana. The plaintiff automobile had been stopped in a line of traffic waiting to cross the railroad tracks on Williams which was blocked by a passing train. The taxicab was stopped in a parking lot approximately half a ear length from the Williams roadway, to the right and slightly ahead of the plaintiff car. When the train had passed and the line of traffic began to move, the plaintiff vehicle proceeded forward on Williams. In an attempt to get into the Williams lane of traffic occupied by the plaintiff automobile, the taxicab proceeded out of the parking lot into the right front of the approaching plaintiff car. The left front fender of the taxicab struck the right front fender of the automobile. Both vehicles were proceeding slowly.

Under these circumstances, we find the taxicab driver was negligent. We also reject defendants’ contention that the plaintiff driver was guilty of contributory negligence, a plea based on the argument that the latter could have avoided the accident by the exercise of proper care. The facts do not support the contention. Here the taxicab proceeded from its stopped position in the parking lot and into Williams when the plaintiff car was such a short distance away as to make the collision unavoidable on the part of the plaintiff driver, especially since she had the right to assume the taxicab would not enter Williams until she has passed.

In their answer to the appeal, plaintiffs contend they are entitled to: (1) an increase in awards for medical expenses; (2) an increase in awards for expert witness fees; (3) recovery of the cost of air fare for their attorney and transcription of depositions scheduled and taken by the defendants in Tucson, Arizona; (4) a recovery by Mr. Cox of $6,400 for lost wages on behalf of his wife; and (5) increases in the awards for personal injuries from $2,000 to $4,000 for Mrs. Hurd, from $2,500 to $10,000 for Mrs. Cox, and from $250 to $500 for the child, Darrell Hurd.

(1) Relative to plaintiffs’ first contention, we are asked to increase the award of $350 for Mrs. Cox’s medical expenses. The record reflects, without contradiction, that Dr. Padua charged $299 for treatment, Dr. Whitecloud $140 also for treatment, and Dr. Nice $36 for x-rays, and that prescription drugs had cost $134.03, for a total of $609.03. Accordingly, we will increase the award to Leon Cox from the sum of $350 to the sum of $609.03.

We are also requested to increase the $200 award for Mrs. Hurd’s medical expenses to $280. The record reflects, also without contradiction, that this claim is justified. Accordingly, we will increase the $618.50 award to Marshall Hurd by the sum of $80, for a total award to him of $698.50.

(2) Plaintiffs’ request for an increase in the amount awarded for expert testimony is based upon the alleged fact that the testifying medical experts rendered bills to plaintiffs for that testimony in excess of the $100 fee awarded each by the trial court. The request is denied. An expert witness does not set the fee which is taxed as cost, the court does. And as this court said in Barnett v. Barnett Enterprises, Inc.: “The fixing of the amount of expert fees is a matter within the discretion of the trial court, and unless the record on appeal shows a serious abuse of this discretion, the appellate court will not disturb the finding of the trial court.” We find no abuse of discretion here.

(3) Regarding the claim for transportation costs of their attorney for the purpose of being present during the taking of the depositions in Tucson, Arizona and the cost for transcription of those depositions, the record reflects that one of the depositions was offered in evidence by the defendants and admitted by the court subject to objections made by the plaintiff. We note that the cost of taking depositions is covered in the main by LSA-R.S. 13:4533 and that the Supreme Court case of Succession of Franz passes on the transportation expense of an attorney incurred in connection with the taking of depositions. However, we do not reach the issue presented because the record is devoid of any evidence establishing or tending to establish either the alleged transportation ($211.10) or the alleged transcription ($174.00) expenses; those amounts are contained only in plaintiffs’ brief. Accordingly, we deny this claim.

(4) Concerning the Cox claim for lost wages in the sum of $6,400, the evidence reflects that prior to the accident Mrs. Cox worked as a cosmetic door-to-door sales lady. She introduced in evidence books purporting to show orders for sales during the months of May and February, 1973 and testified there were other books but her children had thrown them away. She was unable to produce income tax forms because she does not file them. Her husband is disabled, they live on Social Security benefits and thus they are limited in the amount of money earned before Social Security payments would be affected. Nevertheless, she stated her average income from cosmetic sales was $125 to $130 per week and she made $1,000 in a two week period sometime before the accident. Although there are no records to substantiate this testimony, she testified she knew she did make that much money from her cosmetic operations. Mrs. Cox further stated that following the accident she was unable to continue with this work.

Quite clearly, Mr. Cox has failed to carry his burden of proving his claim for Mrs. Cox’s alleged lost wages.

(5) We now address ourselves to the matter of quantum. Mrs. Hurd sustained injuries diagnosed as mild cervical strain by Dr. Fisher, who treated her with muscle relaxants and diathermy during September, October and November, 1973, when she transferred to Dr. Aiken who saw her from November 13, 1973 to January 4, 1974. He prescribed a cervical collar, medication, and instructed her to limit her activities. We are asked to increase her award from $2,000 to $4,000.

Mrs. Cox seeks an increase from $2,500 to $10,000. She was treated by Dr. Padua from September 4 through November 20, 1973 for injuries diagnosed as cervical and lumbar strain and contusions of both knees. She took hot baths three times a day at home, limited her activities, as ordered by the doctor, and was discharged by him on November 20, because there were no objective findings.

On May 29, 1974 Mrs. Cox consulted Dr. Whitecloud with complaints of constant pain in the lower back radiating to both thighs and below the left knee. He diagnosed her condition as degenerative lumbar disc disease with intermittent nerve irritation in the lower lumbar spine which he concluded was present prior to the accident, but aggravated by it.

Finally, we are asked to increase the $250 award for the child, Darrell Hurd, to the sum of $500. The child was seen once by Dr. Padua. The results of his examination were normal except for a small contusion of the skull. An antibiotic was prescribed and the mother was advised to watch the infant for a few days and return if the child displayed any unusual symptoms. No further examination or treatment was sought.

The injury sustained by Darrell Hurd was minimal and adequately compensated by the $250 award. Had we been called upon to make the initial awards to Mrs. Hurd and Mrs. Cox for their injuries, our awards would have been higher than those made by the trial court. However, under the current Supreme Court jurisprudence, the sole questions presented by the claims of Mrs. Hurd and Mrs. Cox are whether their $2,000 and $2,500 awards for pain and suffering are so insufficient that they constitute an abuse of the “much discretion” left to the trial judge by Civil Code Article 1934(3). We find no such abuse of discretion here.

For the reasons assigned, the judgment appealed from is amended only so as to increase the award to plaintiff, Marshall Hurd, from the sum of $618.50 to the sum of $698.50, and to increase the award to plaintiff, Leon Cox, from the sum of $350 to the sum of $609.03. As thus amended, and in all other respects, the judgment appealed from is affirmed. All costs in this court are to be paid by the defendants-appellants.

AMENDED AND AFFIRMED.

      . $250 for pain and suffering for his child, Darrell Hurd, $25 for the child’s medical expenses, $143.50 for property damages, and $200 for medical expenses for Mrs. Hurd.

      .LSA-R.S. 32:124; Travelers Insurance Company v. Harris, La.App., 294 So.2d 588; Sholar v. U. S. Fire Insurance Company, La.App., 261 So.2d 327; Jones v. Travelers Insurance Company, La.App., 149 So.2d 441; Chandler v. Grain Dealers Mutual Insurance Co., La.App., 131 So.2d 606.

      . Citing Boyd v. Damico, La.App., 230 So.2d 425, 428; Jones v. Travelers Insurance Company, supra, note 2; and Strehle v. Giaise, La. App., 46 So.2d 685.

      . Cases cited in note 2.

      .La.App., 231 So.2d 589, 592.

      . 242 La. 875, 139 So.2d 216, 219.

      . Lomeníok v. Schoefñer, 250 La. 959, 200 So.2d 127, and the long line of cases which follows that -decision, including Canter v. Koehring Company, La., 283 So.2d 716, and Coco v. Winston Industries, Inc., La., 341 So.2d 332.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    LOUISIANA STATE MUSEUM v. Rebecca Mary Tercero MAYBERRY.
    No. 8567.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.

      William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., and Ronald Davis, Staff Atty., New Orleans, for plaintiff-appellant.
    R. Collins Vallee, New Orleans, for defendant-appellee.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff filed this summary eviction proceeding against the defendant to have her removed from an apartment in the Lower Pontalba Building which she leased from the museum under a written lease providing for monthly rental payments of $360.

On December 15, 1976, plaintiff caused a notice to vacate to be served on defendant through the Constable of the First City Court of the City of New Orleans. This notice was served on December 16, 1976. The notice demanded defendant deliver the leased premises to plaintiff "at the expiration of your current rental month, December 31,1976 . . . No reason was set forth in the notice for the eviction.

On January 3, 1977, plaintiff filed a rule to show cause why defendant should not deliver the premises to it or be evicted. Plaintiff’s rule alleged the defendant occupied the leased premises “under a monthly verbal lease of over $100.00 per month,” and further alleged no rent was claimed. Defendant answered, denied she occupied the premises on a monthly verbal lease, admitted no rent was claimed by plaintiff, alleged plaintiff did not comply with notice requirements of the Louisiana Civil Code and Code of Civil Procedure, and alleged the due date for monthly rental payments was tacitly altered by plaintiff’s previous acceptance of late rental payments.

Following trial, there was judgment dismissing plaintiff’s suit. The trial court gave the following reasons for judgment at the request of plaintiff’s attorney:

“The Court is of the opinion that improper notice was given due to the fact that the defendant or tenant had a written lease, and the Court is of the further opinion that before a Rule for Possession is in order, that a petition to cancel the lease should have been filed first.”

Plaintiff has appealed and defendant has answered the appeal. However, we cannot consider the answer to the appeal because the same was not timely filed.

The written lease between the litigants was introduced into evidence prior to dismissal of plaintiff’s rule. It was for a term of one year, commencing September 1, 1976 and ending August 31, 1977, and thus was in effect at all times during the proceedings in the trial court. It provides in pertinent part as follows:

“Should the Lessee fail to pay the rent or any other charges arising under this lease promptly as stipulated . . . Lessee shall be ipso facto in default . In the event of any such default, Lessor retains the option to cancel the lease and obtain possession of the premises by giving Lessee written notice to vacate the premises in accordance with the provisions of Articles 4701-4705 of the Louisiana Code of Civil Procedure.”

In addition, the lease also allows eviction if the lessee discontinues use of the premises for residential purposes or fails to maintain a behavioral standard consistent with orderly possession of the premises, provided such violations are not stopped after five days written notice or again occur at a later date after such notice is given.

While statements are made in plaintiffs brief that defendant was evicted for nonpayment of rent, the grounds for the eviction do not appear in either the notice to vacate or in the rule for eviction. On the contrary, the rule for eviction incorrectly states defendant occupied the premises under a monthly verbal lease and further states no rent was claimed by plaintiff.

Article 4701 of the Louisiana Code of Civil Procedure provides as follows:

“When a lessee’s right of occupancy has ceased because of the termination of the lease by expiration of its term, action by the lessor, non-payment of rent, or for any other reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee. The notice shall allow the lessee not less than five days from the date of its delivery to vacate the leased premises.
If the lease has no definite term, the notice required by law for its termination shall be considered as a notice to vacate under this article. If the lease has a definite term, notice to vacate may be given not more than thirty days before the expiration of the term.” LSA-C.C.P. Art. 4701.

Plaintiff cites this article and numerous court decisions as authority for the proposition that a lessor is entitled to possession of the leased premises upon the lessee’s failure to properly pay rent, and that the procedure set forth in Articles 4701 through 4705 of the Code of Civil Procedure allow eviction upon five days notice whether the lessee holds under a month-to-month rental arrangement or under a lease which contains a provision (as does the one in the present case) granting the lessor the option to declare the lease cancelled upon nonpayment of rent. However, in all of the cases cited by plaintiff the lessee being evicted was given notice of the reason for the eviction. In the present case neither the notice to vacate nor the rule for eviction set forth nonpayment of rent as the reason for plaintiff’s action.

Eviction in Louisiana is one of the proceedings accomplished by summary procedure. If the lessee fails to vacate after the notice required by Article 4701 of the Code of Civil Procedure, he may be cited summarily to show cause why he should not be ordered to surrender possession of the premises to the lessor. The eviction rule can be made returnable on the third day after it is served on the lessee, “at which time the court shall try the rule and hear any defense which is made.” After this short time, the court may order the lessee to deliver the premises to the owner.

The wisdom of allowing the use of summary procedure in eviction cases has proved itself over the years, and the equity of not allowing a tenant who does not pay rent to effectively take the leased premises out of commerce and live rent free pending the delays of a normal court action are obvious. However, in this case lack of time available to a good-faith lessee to prepare his case and make the defense to which he is entitled under Civil Code Article 4732 at least requires he be notified of the reason for which his eviction is sought.

Here no reason for eviction was given in either the notice to vacate or the rule for eviction. Especially since the lease contains grounds for eviction other than nonpayment of rent, minimum requirements of due process require notification of the reason for eviction to allow preparation of a defense if any is available. To this extent, because she held the premises under the written lease, we concur in the trial judge’s reason that defendant was afforded “improper notice”.

Plaintiff relies heavily in this connection on Board of Levee Comm’rs. v. Ma- gee Aircraft Company, to justify its contention that eviction proceedings should not have overly technical restrictions imposed on them. The Magee case stands for the proposition that a notice to vacate is satisfactory if it merely indicates the lessor desires to terminate the lease and obtain possession of the premises. However, the court in Magee was only dealing with a month-to-month lease, which could be terminated upon timely notice for any or no reason. If a written lease with a definite term is to be terminated for a reason other than the mere passage of time, the tenant must be appraised of the substantive reasons for his desired eviction, and a mere indication that the lessor wishes to terminate the lease and obtain possession does not afford sufficient notice to meet basic due process requirements.

Since the notice given defendant to vacate the premises was improper in failing to set forth the reason for eviction, the trial judge had the option to allow plaintiff time to amend its notice and rule or to dismiss the action. But as the matter is summary in nature, at the time of trial no substantial delay would result from the plaintiff being required to institute a new proceeding for eviction. Consequently, the trial judge did not abuse his discretion in dismissing the eviction proceeding instead of granting plaintiff time to amend.

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

AFFIRMED.

      . LSA-C.C.P. Art. 2133. The return day was February 14, 1977 and the record was lodged on that date. The answer to the appeal was filed March 14, 1977.

      . See, for example, Cameron v. Krantz, La. App., 299 So.2d 919; Goldblum v. Harden, La. App., 188 So.2d 630.

      . LSA-C.C.P. Art. 4731.

      . LSA-C.C.P. Art. 4732.

      . Id.

      . La.App., 77 So.2d 239.


text:
    Eli W. TULLIS, Edward F. Creekmore, Jr. and William Perry Brown, Sr. v. Alden H. VOSE, Jr., Individually and as Executor of the Estate of Charles B. Vose, and the New York Stock Exchange, Inc.
    No. 7346.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Herschel L. Abbott, Jr., Edward B. Poitevent, II and Harry S. Hardin, III, New Orleans, for plaintiffs-appellants.
    Deutsch, Kerrigan & Stiles, Robert G. Stassi, New Orleans, for defendant-appel-lee.
    Before SAMUEL, REDMANN and LEM-MON, JJ.
   SAMUEL, Judge.

Plaintiffs, former general partners in the brokerage firm of Kohlmeyer & Company, filed suit against defendants, Alden H. Vose, Jr., individually and as executor of the estate of Charles B. Vose, and the New York Stock Exchange, Inc., seeking to enjoin arbitration before the Board of Arbitration of the New York Stock Exchange regarding the capital accounts of Kohlmeyer & Company in Liquidation. Defendants answered, denying plaintiffs’ right to in-junctive relief.

Following trial, there was judgment denying plaintiffs’ prayer for injunctive relief. Plaintiffs have appealed from that judgment.

Kohlmeyer & Company was a Louisiana partnership in commendam. It did business primarily as a stock brokerage and underwriting firm. Its principal place of business was in New Orleans, and it was a member of the New York Stock Exchange, Inc. On October 5, 1973, the general partners voted to liquidate the partnership. Among the liquidators appointed to wind up the partnership affairs were Alden H. Vose, Jr., a defendant, and his brother, Charles B. Vose. On April 22,1974, Charles B. Vose died and in due course Alden H. Vose, Jr. was appointed executor of his estate.

On April 29,1974, two of the plaintiffs in this suit, Eli W. Tullís and Edward F. Creekmore, Jr., filed suit against the partnership in liquidation and its liquidators under the Louisiana Blue Sky Law seeking rescission of certain Secured Demand Notes and Secured Demand Note Collateral Agreements given by them to the partnership. These notes and agreements will be mentioned later in this opinion.

On May 24,1974, the same plaintiffs filed suit against the partnership in liquidation and its liquidators seeking, among other things, an audit of the books of the partnership, homologation of the auditors’ report, and a mandate that the liquidators sue all deficit partners to collect the sums by which they were in deficit.

Finally, on April 25,1975, the partnership in liquidation filed a petition to arbitrate a dispute between it and defendant Vose with the Board of Arbitration of the New York Stock Exchange to determine whether memberships of Alden H. Vose and the estate of C. Baldwin Vose in the New York Stock Exchange and New York Cotton Exchange were assets of the partnership in liquidation. Vose answered the petition for arbitration and asserted various counterclaims against numerous persons including the three plaintiffs in this suit. These counterclaims, also to be determined by arbitration, sought (a) dismissal of the partnership’s claim or determination of the proper amounts due by Vose and his late brother to be charged to their respective capital accounts in the partnership, (b) adjustment of the partnership books to eliminate any charges to the account of Charles B. Vose after his death and treatment of amounts owed Charles B. Vose as a partnership debt, and (c) establishment of the deficit of each partner and payment by each partner to the partnership in liquidation to satisfy claims of subordinated lenders and creditors.

Plaintiffs herein objected to arbitration of the subject matter of the counterclaims in New York, and consequently filed this suit to enjoin the arbitration proceedings.

The central issue for our determination is whether plaintiffs agreed to arbitrate the issues stated in the above-enumerated counterclaims before the Board of Arbitration of the New York Stock Exchange or whether they are entitled to have the subject matter of the arbitration determined by the courts of Louisiana.

Revised Statute 9:4201 provides arbitration agreements are valid as follows:

“A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Emphasis added).

In the process of becoming a general partner of Kohlmeyer & Company, each of the plaintiffs executed an application for membership status in the New York Stock Exchange. All three applications were approved by the Exchange, and each of the plaintiffs was recognized as an allied member of the Exchange. Each application contained the following provision:

“I further state that I have read the Constitution and Rules of the Board of Governors of the New York Stock Exchange and I hereby make application to become an allied member of the Exchange. I hereby pledge myself to abide by the Constitution and Rules of the Board of Governors of the New York Stock Exchange as the same have been or shall be from time to time amended, and by all rules and regulations adopted pursuant to the Constitution, this pledge to become effective in the event of, and forthwith upon, the approval of this application.”

The constitution of the New York Stock Exchange provides “Any controversy between parties who are members, allied members, member firms or member corporations shall, at the instance of any such party ... be submitted for arbitration, in accordance with the provisions of the constitution and rules of the Board of Directors” of the New York Stock Exchange. At all pertinent times Kohlmeyer & Company was a member of the New York Stock Exchange.

On June 2, 1972, the Exchange revised certain rules dealing with capital contributions by partners of member firms. In order to document the amount of capital contributed to the partnership by each partner, the Exchange ruled that partners’ capital contributions could no longer be represented directly by securities after June 1, 1973, but would have to be in the form of a Secured Demand Note, secured by pledge of securities of a specified market value accompanied by a Secured. Demand Note Collateral Agreement on forms prescribed by the New York Stock Exchange. Such documents were executed by plaintiffs, Tullís and Creekmore, on April 6, 1973.

Paragraph XII(e) of the Secured Demand Note Collateral Agreements executed by them specifically provides that “any controversy arising out of or relating to this Agreement or the breach thereof, shall be submitted and settled by arbitration pursuant to the Constitution and Rules of the Exchange.” This provision further contained language that the “parties hereto and all who make claim under them shall be conclusively bound by such arbitration.”

Of particular importance is Article XVI(b) of the partnership agreement of Kohlmeyer & Company, which requires all partners to abide by the rules and regulations of any exchange of which the partnership or any partner may be a member. The partnership agreement provided a partner could be required to withdraw involuntarily from the partnership if he violates any such rule or regulation of a member exchange. As above stated, at all times pertinent to this suit the partnership was a member of the New York Stock Exchange, and its constitution required its members to arbitrate disputes among them as set forth above.

Plaintiffs contend that as a matter of law they are not obligated by the arbitration agreements in the above documents, citing three court decisions in support of their argument. Plaintiffs first rely on Stone v. Stone, which stands for the proposition that a partner cannot be deprived of his right to legally dissolve a partnership by a provision of the Articles of Partnership requiring arbitration of disputes. The court held that as a partnership may be dissolved as a matter of right, there was nothing for an arbitrator to decide. It basically relied upon the last phrase of R.S. 9:4201 which validates arbitration agreements “save upon such grounds as exist at law or in equity for the revocation of any contract.” Since the partnership agreement in the Stone case could be dissolved at the will of either party, there existed a ground for revocation thereof and the arbitration provision could not be invoked.

Even accepting the fact that the Stone case stands for the proposition that a provision to arbitrate the liquidation of a partnership is invalid, Stone does not apply in the present case because Kohlmeyer & Company was dissolved on October 5, 1973 by a vote of the general partners, including plaintiffs, pursuant to Article XVIII of the partnership agreement. In addition, the Stone decision is not authority for granting a partner or former partner the right to avoid arbitration of matters involving amounts owed to or by his capital account in the process of winding up the affairs of the partnership. On the contrary, the national composition of the New York Stock Exchange and the far-reaching effect of the Exchange on the economy of this country clearly demonstrate a public interest in the Exchange and its members in the uniform and ethical composition of each member to protect the Exchange, its members, and the general public from being preyed upon by undercapitalized or capital-drained members who might use their membership to exploit the public and irrevocably destroy public confidence therein. There is neither theoretical nor practical reason why the capital accounts of individual partners of a member firm of the New York Stock Exchange cannot be validly subjected by agreement in advance to arbitration.

Plaintiffs further rely on Wilson v. King, which held a dispute on a promissory note owed by one member of the New Orleans Cotton Exchange to another member was not subject to a Cotton Exchange rule requiring submission of disputes between exchange members to arbitration. The court stated the suit was basically one on a contract and did not involve a dispute concerning the internal affairs of a voluntary association or a dispute between members arising out of their membership or activities in such an association. Applying this reasoning to the present case, there is no doubt the suit by plaintiffs against defendants on a private transaction unrelated to partnership business would not be subject to arbitration under the constitution and rules of the New York Stock Exchange. But here the issue is one of the composition of the partners’ .capital account in which the Exchange has a direct and vital interest; it is a dispute in which the Exchange is involved.

Finally, plaintiffs rely on the United States Supreme Court case of Wilko v. Swan That ease involved an action by a customer against a brokerage firm which was a member of the Exchange to recover damages under Section XII (2) of the Securities Act of 1933 for fraud and misrepresentation in the sale of securities. While the court stated concern with an arbitrator’s lack of knowledge of the meaning of certain provisions of the Securities Act which have come to be terms of art, the decision declaring the Exchange’s arbitration provision inapplicable was based on Section 14 of the Securities Act of 1933 which prohibits the waiver of any provision of that statute. In effect, the Supreme Court stated a person could not agree to arbitration under Section 14 of the Securities Act and thereby waive his right to sue for damages in a court of competent jurisdiction. Thus, the Wilko case does not support plaintiffs’ position.

Plaintiffs further argue they did not knowingly and voluntarily agree to submit their disputes to arbitration when they made application for allied membership in the Exchange. They cite various cases on the definition of waiver, emphasizing the necessity for a knowing and intentional relinquishment or abandonment of a right. However, in applying for allied membership in the Exchange, plaintiffs admit they have read the constitution and rules of the Exchange, and there is no doubt that constitution provides for arbitration in matters such as those here sought to be enjoined. Even stronger are the signatures of the two plaintiffs on the Secured Demand Note Collateral Agreements, which contain the arbitration agreement in the body of the contract. In view of the knowledge and experience of plaintiffs in the business world in general and the brokerage field in particular, there is little to support the argument that they unknowingly agreed to submit said matters to arbitration.

Finally, plaintiffs attempt to assert injustice and unequal results will result by having the arbitration proceeding pending in New York during the pendency of plaintiffs’ suit for an audit of the books of the partnership and for a mandate to collect balances due from deficit partners. However, contrary to this assertion and its implications, the litigation pending in Louisiana is not a proceeding for the dissolution and liquidation of Kohlmeyer & Company; it contains a relatively narrow prayer involving deficit partners and other particular and specific aspects of the partnership’s affairs. The content and result of the arbitration proceeding would seem a necessary precedent to a definitive judgment in plaintiffs’ other suit.

As a matter of public policy, arbitration agreed to in advance of disputes is favored in law. Since the liquidation of the partnership has been voted upon and is an accomplished fact, there is nothing in the arbitration proceedings which makes it repugnant to Louisiana law. On the contrary, the Exchange has an interest in determining that certain aspects of the capitalization of its member firms be treated uniformly, and the arbitration proceedings sought to be enjoined is not inconsistent with that end. Plaintiffs knowingly agreed to arbitration of certain disputes, including the capital accounts of their partnership, as an incident to their memberships in the Exchange, and nothing has been shown or argued to us which justifies enjoining defendants from going forward with the arbitration proceedings.

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

AFFIRMED.

      . LSA-R.S. 9:4201. This provision and others in the Louisiana Arbitration Law supplement Civil Code Articles 3099-3132.

      . Section 1, Article VIII.

      . La., 292 So.2d 686.

      . La.App., 145 So.2d 128.

      . 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953).

        .Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Breaux v. Laird, 230 La. 221, 88 So.2d 33; Michel v. Efferson, 223 La. 136, 65 So.2d 115.

      . This is the suit filed on May 24, 1974 mentioned above.

      . See, for example, O’Dell v. International Paper Company, La.App., 262 So.2d 101; Wright v. Round the Corner Restaurants of La., Inc., La.App., 252 So.2d 341.


author: LEMMON, Judge.

text:
    Joseph A. LEMOINE v. DEPARTMENT OF POLICE.
    No. 7702.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.

      Sutterfield & Vickery, James R. Sutter-field, New Orleans, for plaintiffs-appellants.
    Philip S. Brooks, City Atty., Michael A. Starks, Asst. City Atty., for defendant-ap-pellee.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

Plaintiff, a New Orleans policeman, has appealed from a decision of the Civil Service Commission upholding his discharge from employment.

The police department received allegations of public bribery against plaintiff, and a major in the department immediately began an investigation and called plaintiff in for questioning. Plaintiff obtained counsel, and upon being informed that he was the subject of a criminal investigation, he invoked the privilege against self-incrimination and refused to answer questions, whereupon he was told that his refusal would be respected and that he would not be questioned in regard to the criminal investigation.

Plaintiff’s superior then stated that the department was also conducting an internal investigation relating essentially to the same subject, that La.Const.1921, Art. 14, § 15(P)(1) required all civil service employees to answer questions relating to the conduct of city officers, including himself, that nothing in his answers would be used against him in a criminal proceeding, and that refusal to answer on the basis of the self-incrimination privilege would operate as a forfeiture of his civil service position. Plaintiff again invoked the privilege and refused to answer questions.

The superior officer then ordered him to answer the questions relating to the internal investigation, but he still refused. Later that day he was suspended from employment.

The following day plaintiff filed an action in federal court for injunctive relief and determined that statements in the internal investigation could not be used against him in state or federal criminal proceedings. He then notified the appointing authority that he was willing to submit to questioning, which took place shortly thereafter. Plaintiff was subsequently notified of his dismissal.

The Commission’s hearing was limited to evidence relative to the suspension, and that decision by the Commission has been affirmed by this court. See 301 So.2d 396. After a hearing on remand of evidence relative to the dismissal, the Commission also upheld that action, and the latter decision is now before us for review.

I

Plaintiff first argues that since the letter of dismissal was not presented in evidence, the record does not support the Commission’s decision.

A person who has acquired permanent civil service status can only be dismissed for “cause, expressed in writing, by the appointing authority”. La.Const.1921, Art. 14, § 15(N)(1). There was a written letter of dismissal, stating the causes therefor, and that letter was introduced at the original hearing before demand. At the beginning of the subsequent hearing the appointing authority abandoned all grounds for dismissal except the refusal to answer questions relative to the internal investigation. During the hearing both sides referred to the letter of dismissal.

The purpose of requiring cause expressed in writing is to apprise the employee in detail of the grounds upon which the dismissal is based and to limit any subsequent proceedings to the stated grounds. Paulin v. Department of Safety and Permits, 308 So.2d 817 (La.App. 4th Cir. 1975).

In the present case evidence relevant to the sole ground relied upon for dismissal was introduced without objection, and our decision is necessarily limited to that evidence. Since plaintiff received the dismissal letter and defended against the charges stated therein (as narrowed by stipulation), we hold that the failure to present the letter of dismissal in evidence at the second hearing does not constitute grounds for reversal of the Commission’s decision.

II

Plaintiff principally argues that his discharge based on his initial refusal to answer questions is violative of the Fifth Amendment of the United States Constitution.

In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) a police officer during an Attorney General investigation was told that any statement might be used against him in a criminal proceeding and that he had the privilege to refuse to answer, but that such refusal would subject him to forfeiture of office. He answered, and his answers were used over objection in a subsequent prosecution. The court excluded the evidence, holding that a state cannot use the threat of discharge to secure incriminating statements from an employee, even a policeman.

In Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) a policeman was discharged because he refused in a grand jury investigation to waive immunity from prosecution based on his answers, after being told he would be discharged if he did not sign the waiver. Observing that the officer was presented with a choice between surrendering his constitutional rights or his job, the court held that a state cannot discharge an employee for refusing to waive a constitutionally guaranteed right. The court noted, however, that a policeman owes his entire loyalty to the state and that the privilege would not bar his dismissal for refusal to answer questions relating specifically, directly and narrowly to his official duties, if he were not required to waive immunity with respect to use of the answers or the fruits thereof in a subsequent criminal prosecution.

In the present case plaintiff was requested to answer questions relating to his official duties, was informed that no statements would be used against him, and was not asked to waive any rights. He was therefore not faced with a choice between loss of a constitutional right if he answered or loss of his job if he didn’t. Consequently, when he refused to answer, the privilege against self-incrimination did not bar his discharge from employment based on the refusal.

Plaintiff contends, however, he was merely told his answers “will not” be used against him in a criminal proceeding and was never advised his answers or the fruits thereof “cannot” be used against him.

While the word “will” technically indicates discretion to use rather than inability to use, the obvious intent of the advice was to grant plaintiff immunity from use of his answers in a criminal proceeding, and under these circumstances “(a)nswers may be compelled regardless of the privilege”. Gardner v. Broderick, supra.

We conclude that this case does not involve an attempt to coerce plaintiff to incriminate himself or to relinquish his constitutional rights, and appropriate disciplinary action for impeding a departmental investigation was reasonably justified.

As to the severity of the punishment, plaintiff refused to cooperate immediately with a departmental investigation of illegal police activity. While he did later come forward and answer questions voluntarily, we cannot say that his initial refusal to account for the performance of his public trust did not reasonably justify the disciplinary action which was imposed.

The decision of the Civil Service Commission is affirmed.

AFFIRMED.

      . A second policeman’s case is álso included in this appeal. Both officers were dismissed on identical charges arising from the same incident. The parties stipulated that the facts adduced at the evidentiary hearing in this case were identical to the facts of the other case and that both matters would be governed by this decision.

      . Perhaps plaintiff should have been told, upon his offer to answer departmental investigation questions (not criminal investigation questions), that he was going to be fired because of his earlier refusal to answer, whether he now answered or not. But it is not shown that Salles, who did the questioning when plaintiff later volunteered to answer questions, had express authority from the superintendent to reopen questioning of plaintiff. Accordingly, this court has no basis to estop the superintendent from firing plaintiff, assuming that estoppel might occur.


author: BOUTALL, Judge.

text:
    Cynthia Thompson HODGES v. John HODGES.
    No. 8298.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.

      Peggy M. Vicknair, O’Keefe, O’Keefe & Berrigan, New Orleans, curator ad hoc for Nichelle F. Hodges, appellant.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This appeal by a curator ad hoc is from a judgment of disavowal of paternity of Ni-chelle Frances Hodges.

In response to a petition for a two year divorce, John Hodges filed a reconventional demand for disavowal of the paternity of this child, Nichelle, alleging that her birth was concealed from him and was the result of an adulterous relationship with another man by his wife. A curator ad hoc was appointed to represent the interest of the child. The curator raised an exception of prescription based upon failure to contest paternity within six months of the birth. L.C.C. Art. 191 as amended by Act 158 of 1968. After trial on the merits, the exception was overruled and a judgment of disavowal rendered. No procedural questions are raised on the appeal, and it is limited to error in overruling the exception, and in granting judgment of disavowal. We believe the trial judge erred in both matters.

The calendar of events is as follows. Cynthia Thompson Hodges and John Hodges were married on October 15, 1966. They voluntarily separated on September 7,1970. On June 10, 1973 Nichelle F. Hodges was born. On June 24, 1974 Cynthia Hodges filed a petition for divorce based on living separate and apart in excess of two years, and the reconventional demand for disavowal followed on July 10, 1974. Thus the Hodges were still married at the time of Nichelle’s birth and 13 months elapsed from date of birth to filing of disavowal.

From this situation two presumptions arise. The first is that arising from Louisiana Civil Code Article 184 which states that:

“Art. 184. The law considers the husband of the mother as the father of all children conceived during the marriage.”

This presumption of paternity has always been rigorously applied in our courts. Tannehill v. Tannehill, 261 La. 933, 261 So.2d 619 (1972). The second presumption is that of C.C. Art. 188 stating that “in case of voluntary separation, cohabitation is always presumed, unless the contrary be proved.”

The husband, by the allegations of his reconventional demand seeks to disavow under the provisions of C.C. Art. 185 which we quote in pertinent part:

“ * * * *, he can not disown it even for cause of adultery, unless its birth has been concealed from him, in which case he will be permitted to prove that he is not its father.”

The proof necessary to prove plaintiff’s allegations and to overcome the presumptions of the law is entirely inadequate. The only proof offered was the testimony of the mother that there was a Voluntary separation in 1970; that she had little contact with her husband since then; that he was not the father of the child; that she saw him twice during her pregnancy and he knew she was pregnant; that she did not tell him of the birth of Nichelle in 1973. Hodges testimony is confined simply to the fact that he lived on Galvez Street in New Orleans during the six month period from June 1973 to January 1974. The only other pertinent evidence is the birth certificate showing Hodges to be the father.

We find the legal principles announced in the case of Feazel v. Feazel, 222 La. 113, 62 So.2d 119 (1952) to be controlling here. If we considered the wife’s testimony to be true, there was no concealment and no proof of adultery except the inference from her bare statement that Hodges was not the father of the child. However, Feazel stands for the proposition that we must disregard the mother’s testimony which would have the effect of making the child illegitimate, and it cannot overcome the legal presumption of paternity. See also Trahan v. Trahan, 142 So.2d 571 (La. App. 3rd Cir. 1962). Without the testimony of the mother, there only remains the testimony of the father and the birth certificate itself, both of which, if they have any effect at all, tend to prove that the child is legitimate.

We see no reason to belabor the point in this case; the evidence is simply completely inadequate and the allegations of the demand unproven. The trial judge should have maintained the exception and dismissed Hodges’ suit.

For the reasons assigned, we reverse the judgment appealed from and dismiss the reconventional demand for disavowal of Nichelle F. Hodges, decreeing her to the legitimate child of the marriage.

The curator ad hoc has petitioned us to increase the fee awarded for her services, for her representation of the child in this court. The trial court set the curator fee at $125.00, taxable as costs, and to this we add an additional fee of $125.00, taxable as costs against the appellee, John Hodges.

REVERSED.

      . Act 430 of 1976 does not pply to this case filed in 1974.


text:
    LOUIS DREYFUS CORPORATION v. CONTINENTAL GRAIN COMPANY.
    No. 8578.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.

      Lemle, Kelleher, Kohlmeyer & Matthews, Charles Kohlmeyer, Jr., Earl S. Eichin, Jr., New Orleans, for Continental Grain Co., defendant-appellee.
    Monroe & Lemann, W. Malcolm Stevenson, Michael R. O’Keefe, III, New Orleans, for Louis Dreyfus Corp., plaintiff-appellant.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Plaintiff Louis Dreyfus Corporation appeals a judgment of the trial court which dismissed plaintiffs rule for a preliminary writ of injunction. Plaintiff sought to enjoin the defendant from refusing to sell certain grain commodities to the plaintiff and refusing to buy from plaintiff, allegedly in breach of an agreement between the parties.

The parties to this action had entered into a contract for the purchase and resale of certain grain commodities. In general, the Louis Dreyfus Corporation (Dreyfus) bound itself to sell certain amounts of grain commodities to Continental Grain Company, to be received in barges on the upper rivers above the Mississippi River and transported to Continental’s Westwego Grain Elevator. Dreyfus would then purchase the very same grain commodities sold to Continental, or grain commodities similar in kind and grade, at basically the same price, as the price paid by Continental for the grain to Dreyfus to be loaded on Dreyfus ships at Westwego. The only price difference between the grain as it was sold from Dreyfus to Continental and Continental back to Dreyfus was to be a five cent per bushel elevator charge for storing the grain and loading it onto ships plus a 1% over prime interest rate for the time interval between sale and resale.

In February and March, 1977 Dreyfus placed orders per the agreement for the delivery of various amounts of grain to be loaded at the defendant’s Westwego elevator. However, the barges carrying the grain to be sold by Dreyfus to Continental and to be put through the Westwego elevator were unable to move downriver because the river was blocked and frozen over with ice between Cairo, Illinois, and St. Louis, Missouri. Accordingly, Continental notified Dreyfus that Continental would suspend the performance of the February and March orders by invoking the Force Ma-jeure clause, Section 9.1 of the contract. Section 9.1 says:

“A party shall not be liable for nonperformance or delay in performance due in whole or in part to any cause either not within its control or which it could not by reasonable diligence have avoided. (A strike shall not be deemed within the control of a party.) Upon the occurrence of any such contingency, the party so affected shall have the right to suspend or delay performance under this Agreement during the period of such contingency and if such contingency affects the quantities of grain which in any period may be sold by Dreyfus or purchased and sold by Continental or purchased by Dreyfus, Dreyfus’ obligations and Continental’s obligations hereunder in that regard shall be accordingly reduced.”

Upon receipt of Continental’s notice of intent not to sell grain for the February, March orders, Dreyfus filed suit. Dreyfus’ petition was entitled “Petition for Temporary Restraining Order, Petition for Injunction, Petition for Specific Performance, Petition for Damages.”

The trial judge refused to sign the temporary restraining order, but tried the rule for the preliminary injunction two days later. After trial, the plaintiff’s rule for a preliminary writ of injunction was dismissed.

On appeal, plaintiff raises numerous issues relative to plaintiff’s right to specific performance and the parties’ contractual obligations. However, the sole issue before us is the correctness of the judgment of the trial court which denied the plaintiff’s request for a preliminary injunction. All other issues are part of the merits and were not before the trier of fact. Similarly, neither are those issues before us on appeal.

As for the issue of the trial court’s denial of the preliminary injunction, we note that the granting of a preliminary injunction is only an interlocutory judgment designed to prevent a party from suffering irreparable harm pending a final determination of his rights and in such cases to generally maintain and preserve the existing status pending a trial of the issues on the merits; the question of whether the preliminary injunction should be granted or refused is one which addresses itself to the sound discretion of the trial court. City of New Orleans v. Delta-By-Products, Inc., La.App., 177 So.2d 395 (1965).

Article 3601 of the Louisiana Code of Civil Procedure provides, in part:

“An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by Law; . .

Our review of the record convinces us that the plaintiff failed to demonstrate irreparable injury, loss, or damage occasioned by defendant’s suspension of the agreement. Mr. Steve Lucas, a merchandiser for Dreyfus in charge of logistics, handling and trading, testified that the vessels nominated by Dreyfus to receive the grain at the Westwego elevator had in fact been sent elsewhere to load the grain for the February and March orders and thus, those commitments were tentatively filled. Mike Robinson, a Dreyfus employee with the duty to insure that Dreyfus’ position with grain commodities remained stable, testified that at this point in time it was impossible to tell what damage had been done by Continental’s refusal to fill the February and March orders. Robinson additionally acknowledged that the vessels nominated to load the grain at Westwego had gone elsewhere to load the grain.

In opposition, defendant’s evidence was to the effect that the agreement was that Dreyfus was to furnish the grain to be loaded and that grain was blocked in the ice-bound river, incapable of being moved. As a result one of the parties faced a loss due to price increase and demurrage. Under these circumstances, the matter or question of damages resulting from Continental’s alleged breach of contract should be referred to the merits. At the trial of the merits the plaintiff will have the opportunity to prove the validity of the contract and any breach thereof and damages, if any, resulting from such breach.

Additionally, we note that the relief sought is in fact a mandatory injunction for specific performance of the contract. The issuance of a preliminary injunction would compel Continental to perform the terms of an agreement which Continental claims to be suspended by the very terms of the agreement itself. There is an equal risk of irreparable harm to Continental. Such a dispute can best be resolved at trial on the merits.

We do not find that the trial judge abused his discretion in his dismissal of the plaintiff’s rule for a writ of preliminary injunction. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


author: BOUTALL, Judge. LEMMON, Judge,

text:
    Albert C. JOHNSON v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, an Agency of the State of Louisiana, and State of Louisiana Board of Review for the Department of Employment Security and its Administrator.
    No. 8155.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Harry A. Rosenberg, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Board of Commissioners of the Port of New Orleans, defendant-appellant.
    Gerald Thos. LaBorde, LaBorde & Brooks, New Orleans, for Albert C. Johnson, plaintiff-appellee.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Defendant employer appeals a judgment of the District Court which reversed the findings of the State of Louisiana Board of Review for the Department of Employment Security that the claimant, Albert C. Johnson, was disqualified from receiving unemployment compensation benefits.

The claimant, Albert C. Johnson, is a patrolman with the Harbor Police Department, Board of Commissioners of the Port of New Orleans. On September 14, 1975 Johnson was arrested in the City of Alexandria and charged with carrying a concealed weapon. At the time of the arrest Johnson was off duty and out of uniform. Thereafter Johnson retained counsel and as a result of plea-bargaining, the charge was reduced from “carrying a concealed weapon” to simply “disturbing the peace”. In accordance therewith, Johnson filed bail bond and then forfeited the bond.

Johnson informed his employer the next day of his arrest. In accordance with the employer’s procedure Johnson was suspended without pay pending investigation of the charges. After his plea-bargain, on September 22, 1975 Johnson was informed by his employer that he was suspended for a period of thirty days without pay for conduct unbecoming a Harbor Policeman. On October 23, 1975 Johnson was reinstated to his former position as policeman with pay.

On October 16,1975 plaintiff filed a claim to recover unemployment compensation benefits for the period of his suspension from the Harbor Police Department. Johnson’s claim was denied by the claim supervisor for the Louisiana Department of Employment Security on the basis of the employer’s contention that the claimant had been suspended without pay for misconduct in connection with his work. Johnson then appealed that denial of his claim to an appeals referee who reversed the denial of benefits by the claim supervisor and stated that it is essential for the misconduct to adversely affect the employee’s ability and capacity to perform his duties in an appreciable degree before such misconduct will bar him from recovering such benefits. The appeals referee went on to say “The facts in this case fail to show that the claimant was rendered incapable of performing his duties on the job as a result of his being arrested. There is also a question as to whether or not the claimant was validly charged with carrying a concealed weapon, since he is in fact commissioned to carry fire arms.”

Johnson’s employer then appealed the decision of the appeals referee to the Board of Review for the Department of Employment Security. The Board of Review examined the record and facts and found that the claimant had acted in a manner that was not becoming to his position as a Harbor Policeman in New Orleans, and that the claimant was guilty of misconduct within the meaning of the act and accordingly ordered that the decision of the appeals referee be reversed and the disqualification be reinstated. Johnson appealed that finding by the Board of Review to the District Court. The trial judge reviewed the record and determined the question to be whether the degree of misconduct of the plaintiff was such to disqualify him from receiving unemployment compensation benefits. The trial judge found the actions of the claimant to be misconduct, but not to that degree to disqualify him from receiving unemployment benefits. Accordingly, the trial judge reversed the findings of the Board of Review that the claimant was disqualified for benefits.

Appellant contends that the trial court erred when it failed to adhere to the administrative findings of fact rendered by the Board of Review and in finding the claimant entitled to benefits, even though claimant was guilty of misconduct connected with his employment. Further appellant contends that the review by the District Court was restricted to review of questions of law and not the facts. LSA-R.S. 23:1634.

While we agree with appellant’s contention that the District Court’s review was restricted to questions of law, we note that judicial review of questions of law includes the determination of whether, under the facts found by the agency, the claimant is or is not as a matter of law entitled to such. benefits. Turner v. Brown, La.App., 134 So.2d 384 (1961).

For the purpose of our review, we must first determine if a person suspended from duty without pay is eligible for unemployment benefits. LSA-R.S. 23:1600 says that: “An unemployed individual shall be eligible to receive benefits with respect to any week only if the administrator finds that: * * * (4) he has been unemployed for a waiting period of one week; provided however, that after the unemployed individual has been unemployed for six consecutive weeks or longer he shall be eligible for benefits with respect to such week of waiting period if he is not otherwise disqualified for benefits with respect to such week under the provisions of this Chapter.

LSA-R.S. 23:1472(19) defines unemployment as: “An individual shall be deemed to be ‘unemployed’ in any week during which he performs no services and with respect to which no wages are payable to him, or in any week of less than full time work if the wages payable to him with respect to such week are less than his weekly benefit amount. The administrator shall prescribe regulations applicable to unemployed individuals making such distinctions in procedures as to total unemployment, part total unemployment, partial unemployment of individuals attached to their regular jobs, and other forms of short-time work, as the administrator deems necessary.”

Thus, it is apparent that a person suspended from duty without pay falls within the contemplation and coverage of the unemployment laws of this state and we hold that a suspended person can receive unemployment compensation benefits if he is not otherwise disqualified.

This individual’s disqualification was based on LSA-R.S. 1601(2) which says that an individual shall be disqualified for benefits “if the administrator finds that he has been discharged for misconduct connected with his employment.”

It is well established that the disqualification for misconduct is dependent upon the peculiar facts of each case, and such misconduct does not have to occur while working on the job, but can be off the job. Grimble v. Brown, etc., et a1., 247 La. 376, 171 So.2d 653 (1965); Jackson v. Doyal, etc., et al., La., 198 So.2d 469 (La.App.2d Cir. 1967). Thus our inquiry is whether the facts found by the Board of Review will support a determination that the misconduct is misconduct connected with his employment.

The facts are that the claimant was employed by the Board of Commissioners of the Port of New Orleans which has police authority for the geographical confines of its jurisdiction, and is responsible for the prevention of crimes and its jurisdiction, safeguarding of property, and protecting the citizens and industries’ interests. This claimant was employed as a policeman, subject to specific regulations covering his employment. Those regulations included: (1) Patrolmen shall carry no unauthorized weapons. (2) Patrolmen are authorized only to carry arms within the geographical limits of the Dock Board’s jurisdiction. (3) Patrolmen are to conduct themselves as befits law enforcement officers, including both on duty and off duty.

At the time of his arrest, at 4:45 A.M. in the parking lot of an A & P Store in Alexandria, La., the claimant was carrying 2 unauthorized pistols, a .44 Magnum and a .357 Magnum, dressed in civilian clothes with the barrel of one pistol protruding from beneath his shirt. The police had received a report of a disturbance there involving guns. There was no disturbance when the police arrived, but there were 18 to 20 cars and 35 to 40 people standing around the area. No facts of any disturbance are in the record, but Johnson was pointed out as being involved.

We determine the controlling factor to be that in this instance a policeman violated the regulations concerning his conduct to the detriment of his employer and its duty to the citizens of the state. Because of the nature of his employment, that is a policeman with the sworn duty to uphold the laws of this state, and see to the safety of its citizens and the security of their property, it is particularly important that Johnson’s conduct both on duty and off, be such as to instill confidence in his concern for safety and accordingly we conclude the facts provide a reasonable basis for the Board of Review to find misconduct connected with his employment; we reverse the judgment of the trial court and reinstate the findings of the Board of Review.

REVERSED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring and assigning reasons.

Disqualification for benefits under R.S. 23:1601(2) requires the finding of two elements, misconduct and connection with employment.

Carrying a concealed weapon is a serious criminal offense, and the commission of an act which constitutes a serious criminal offense almost necessarily constitutes misconduct.

The more difficult issue is connection with employment. An act which does not occur in the course of employment may still be connected with employment within the contemplation of the statute if the act bears such a relationship to the particular employment as to render the claimant unsuitable or undesirable for employment. 19 La.L.Rev. 448, 464 (1959). Even during off-duty hours, an employee must meet the standards of conduct which an employer may reasonably expect of an employee in that position. 89 A.L.R.2d 1089 (1963). Furthermore, an employer may impose reasonable rules of off-duty conduct for its employees.

In the present case the claimant was a patrolman employed by a public agency in New Orleans. The misconduct occurred when, while off duty in Alexandria at 4:45 a.m., he intentionally carried two concealed weapons on his person.

The public agency had the right to expect its patrolmen to obey criminal laws regarding firearms. This violation of law by patrolman bore a relationship to his particular employment, which involved the carrying and proper use of authorized weapons. Accordingly, I agree that the misconduct was employment connected within the intendment of the broadly worded statute.

      . “R.S. 23:1601 Disqualification for Benefits.
      “An individual shall be disqualified for benefits: * * *
      “(2) If the administrator finds that he has been discharged for misconduct connected with his employment . .

      . LSA-R.S. 23:1634 says in part:
      “In any proceeding under this Section the findings of the Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.”

      . Alexandria is outside these geographical limits.

      .Plaintiff was originally suspended after the September 14, 1975 incident because he had been arrested. Being arrested does not constitute misconduct, and the fact of an arrest is not relevant evidence in the determination of whether a claimant is disqualified for misconduct connected with his employment.
      However, the suspension was continued through October 22 because of his violation of state law and of a written order of the employer prohibiting the carrying of weapons of that size, on or off duty, when covered by the commission to carry weapons.

      . Plaintiff denied creating a disturbance or threatening anyone with the weapons, and there was no evidence that he did.

      . Misconduct connected with employment is a much broader statutory requirement than misconduct in the course of employment.


author: SCHOTT, Judge. LEMMON, Judge,

text:
    AETNA CASUALTY & SURETY COMPANY et al. v. STEWART INVESTMENTS, INC.
    No. 8243.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald 0. Collins, New Orleans, for third party plaintiff-appellant.
    Shushan, Meyer, Jackson, McPherson & Herzog, Stephen I. Dwyer, New Orleans, for third party defendant-appellee.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Stewart Investments, Inc. has appealed from the dismissal of its third-party demand against William Dwyer, its lessor, and East Bank Insurance Agency, Inc. The principal demand was brought against Stewart by Dwyer’s subrogated insurers for amounts paid to repair fire damage to the building leased to and occupied by Stewart. The insurers alleged that the fire was caused by Stewart’s negligence. Before trial the principal demand was settled and the third-party demand was for the amount paid by Stewart to the subrogated insurers in settlement.

Stewart’s action against Dwyer was based upon his alleged breach of the contract of lease between them in that he failed to provide insurance coverage for his tenant. The action against East Bank was based upon the latter’s alleged breach of duty to obtain the proper insurance coverage for Stewart.

CLAIM AGAINST LESSOR

The lease between Stewart and Dwyer contains the following paragraphs:

“10. It is understood that the Landlord will pay the premium on the fire and extended coverage insurance for a period of five years; however, after the fifth year should there be an increase in premiums for fire and extended coverage on the building herein leased, the Tenant agrees that any increase in premiums will be shared and paid equally by the Landlord and the Tenant.
“14. The Landlord shall carry and pay for fire insurance and extended coverage of the buildings erected and placed on the demised premises by the lessor, which said insurance shall be no less than the sum of $75,000, during the term of this lease or any renewal thereof, which insurance shall inure to the benefit of the Lessor, with the proceeds thereof, in the event of the occurrence of an insurable casualty during the demise terms to be used for the repair and restoration of the buildings and improvements within a reasonable time from the occurrence of the casualty, not to exceed one hundred and twenty (120) working days from date of such casualty. In the event that the said casualty should occur during the ninth of subsequent years of this lease, and should the Lessee be desirous of obtaining the full restoration of the aforesaid buildings, then Lessee must advise Lessor in writing within fifteen (15) days of the date of the said casualty that Lessee is willing to agree to this lease remaining in full force and effect for a period of no less than five (5) years from the date that the repairs on the said building are completed. From the time that the Landlord is notified by the Tenant of the total or partial destruction of said building and improvements by fire or other casualty, there shall be an abatement of the rent payable hereunder until the premises shall have been repaired and restored by the Landlord and delivered to the Tenant ready for the conduct of the Tenant’s business.

Stewart contends that Dwyer breached these provisions by failing to insure Stewart against the loss it faced when Dwyer’s insurers sought recovery based on Stewart’s negligence in causing the fire. In support of its contention Stewart cites a number of cases from other jurisdictions, including Stein v. Yarnall-Todd Chevrolet, Inc., 41 Ill.2d 32, 241 N.E.2d 439 (1968); Cerny-Pickas & Company v. C. R. Jahn Company, 7 Ill .2d 393, 131 N.E.2d 100 (1956); United States Fire Insurance Co. v. Phil-Mar Corp., 102 Ohio App. 561, 131 N.E,2d 444 (1956) and Mayfair Fabrics v. Henley, 97 N.J.Super. 116, 234 A.2d 503 (1967).

In all of these cases the suits were brought by landlords and/or their subrogat-ed insurers against the tenants just as the principal demand against Stewart in the instant case, and in each of the cited cases recovery was denied because of lease provisions similar to the ones in our case which required the landlords to carry insurance on the buildings. The courts reasoned that it was the intention of the parties to each lease that the insurance would protect both parties from loss by fire even if such fire was caused by the tenant’s negligence.

However, this is not the issue before us. Had the principal demand been litigated we would have been faced with the problem considered in the cases cited by Stewart. Instead, Stewart waived that defense against the subrogated insurers and now seeks to use it as a basis for recapturing from Dwyer that portion of the insurance proceeds paid to him which it voluntarily paid to the insurers in settlement of the principal demand.

Aside from the fact that no legal authority has been cited to or found by us to support Stewart’s position we do not believe that the position is sound. In the first place, Stewart has not shown that Dwyer breached any lease provision and thereby caused its problem. Dwyer procured the insurance required under the lease and collected for his loss. The lease did not contain any provisions such as waiver of subrogation which would have prevented the insurers from taking and Dwyer giving subrogation. The parties to the lease were both sophisticated business people who were free to contract as they saw fit and there is no basis for us to construe the lease to include provisions not expressly included by the parties.

In the second place, to agree with Stewart would lead to an absurd result clearly not intended by the parties. Dwyer agreed to purchase insurance and did so. He collected for the damage from the insurers. Stewart voluntarily paid the insurers a part of the proceeds and would now have us take those proceeds away from Dwyer with the result that the insurers alone would be made whole to the extent of the payment made to them by Stewart. Dwyer would be the loser, not as a result of his dereliction or wrongdoing but because of an agreement made between the insurers and Stewart. Such a result would be untenable.

We recognize that Stewart was in a dilemma when it made the settlement. While it is so that the cases cited above generally supported Stewart’s position on the principal demand there is a split of authority among the jurisdictions as to a tenant’s liability for damages to or destruction of leased property due to his negligence where there is insurance on the property. See 49 Am.Jur.2d 912, § 935, Landlord and Tenant, and the annotation at 15 A.L.R.3d 786, 812. A reading of these references and the cases cited therein demonstrates that Stewart’s problem was complicated by an absence of a surrender provision in the lease such as to surrender the premises “in good condition; loss by fire . . . excepted . . . ” as in Rock Springs Realty v. Waid, 392 S.W.2d 270, 15 A.L.R.3d 774 (Mo. 1965). The problem is further complicated by the public policy consideration of exempting one from liability for his own negligence. Finally, Stewart was probably influenced by Gen. Acc., Fire & Life Assur. Corp. v. Glenn, 261 So.2d 78 (La.App. 3rd Cir. 1972), which held that the lessee was liable to the lessor for fire damage to the premises resulting from lessee’s negligence notwithstanding lease provisions requiring the lessor to carry fire insurance.

Nevertheless, when Stewart made the settlement it waived its argument to the extent that it paid the insurer and cannot be heard at this stage to revive the argument against Dwyer who played no part in that settlement.

CLAIM AGAINST INSURANCE AGENT

Stewart’s claim against East Bank Insurance Agency is based primarily on the peculiar relationship existing between the agency and Dwyer who was the president of the agency as well as Stewart’s lessor.

When the lease was confected Dwyer referred Stewart’s secretary to the agency and she in turn had her CPA contact the agency to procure the insurance. There was a conflict in the testimony as to statements made by Dwyer, his version being that he took no part whatsoever in actually selling the insurance, and Mrs. Stewart’s version that he assured her that he would cover Stewart fully against the risk of fire. The CPA did not testify.

The burden was on Stewart to establish that East Bank undertook to procure insurance to cover it and failed in its duty as a mandatary. LSA-C.C. Art. 3003, Riley v. Carver General Insurance Agency, Inc., 279 So.2d 698 (La.App. 4th Cir. 1973), writ refused, La., 282 So.2d 523. We have concluded that the evidence of record is not so compelling as to warrant a reversal of the claim against East Bank.

Accordingly, the judgment is affirmed at the cost of third-party plaintiff, Stewart Investments, Inc.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring.

The principal demand by the lessor’s sub-rogated insurers was based on the lessee’s alleged negligence. The lessee did not defend on the basis of the implied intention of the contracting parties that the lessor (and his subrogated insurers) would be precluded from recovering from the lessee for loss by fire. Rather, the lessee filed a third party demand against the lessor based essentially on the lessor’s breach of an alleged obligation to provide protection to the lessee for the lessee’s negligent causation of fire damage.

Thus, the basic issue as to the third party demand is whether the lessor was obliged to obtain this protection for the lessee. The trial judge found nothing in the contract or in the surrounding circumstances which would impose such an obligation on the lessor, and I agree.

The questionable theory (that the parties impliedly intended to relieve each other of liability) is applicable to the unasserted defense to the principal demand and cannot logically be extended to impose on the lessor an obligation to buy insurance protection for the lessee for the consequences of its own negligence or to require the lessor to include a waiver of subrogation in the fire insurance purchased in accordance with the lease contract.

As to the contention that the terms of the lease contract impliedly required the lessor to furnish this protection, C.C. art. 2315 imposes a tort obligation to repair any damage one causes to another, and a party wishing to exempt himself by contract from these legal consequences must do so in express and unambiguous terms. A simple contractual requirement that the lessor purchase fire insurance neither (1) determines that the lessor has relieved the lessee of liability for negligent causation of fire damage nor (2) imposes on the lessor an obligation to protect the lessee from the legal consequences of this negligence. Such an intention by the lessor must be clearly stipulated in the contract, and it is the lessee who must exact a specific contractual exemption from liability for its own negligence or a specific provision that the lessor furnish this protection through insurance.

      . The rationale of the cases cited by the lessee is that the contracting parties, by providing in the lease contract that the lessor was to provide fire insurance, impliedly agreed to look to the insurance alone for recovery in the event of loss by fire, thereby effectively relieving each other from any liability for such a loss. Such a theory would preclude the lessor (and the lessor’s subrogees) from recovery based on the lessee’s negligence, because the lease contract itself would actually protect the lessee from being sued by the lessor.

      . The apparent purposes of the quoted provisions are to stipulate responsibility for payment of insurance premiums and to require insurance and use of insurance proceeds for repair and restoration in the event of fire.


author: SCHOTT, Judge.

text:
    John Darrell MUELLER v. NEW ORLEANS PUBLIC SERVICE, INC. and Edward Brown, Jr.
    No. 8304.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.

      Leonard L. Benedetto, Metairie, for plaintiff-appellee.
    A. R. Christovich, Sr., New Orleans, for defendants-appellants.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Defendants have appealed from a judgment in plaintiff’s favor for damages he sustained in an automobile-bus collision. At issue are liability and the quantum of general damages.

LIABILITY

Just prior to the accident plaintiff was driving his automobile in a westerly direction on Robert E. Lee Boulevard in the City of New Orleans. After' crossing a bridge, he traversed the intersection with Wisner Boulevard, proceeded along Robert E. Lee and struck defendants’ bus which was turning into an auxiliary crossing in the neutral ground of Robert E. Lee. The bus, which had been parked in a terminal on the north side of Robert E. Lee, left the terminal, crossed the westbound side of Robert E. Lee and was in the auxiliary crossing to turn around and proceed east on Robert E. Lee.

Pertinent measurements in the vicinity are as follows: The westbound side of Robert E. Lee was 25 feet wide and the neutral ground, 45 feet 4 inches. The path traversed by plaintiff from the center of the bridge to the beginning of Wisner measured 158 feet, Wisner measured 59 feet wide, and the beginning of the bus terminal cut toward the north from the westbound lanes of Robert E. Lee was 100 feet from Wisner. This terminal was wide enough for a bus to park outside of the 25 feet of wide roadway of Robert E. Lee, and it measured 131 feet long. The west end of the terminal was 47 feet from the beginning of the auxiliary crossing leading to the eastbound side of Robert E. Lee.

Plaintiff testified: The light at Wisner was green after he crossed the bridge, and while he was in process of crossing Wisner he saw the bus starting to move. As he approached the bus it moved into the right lane whereupon, thinking the bus would proceed west along Robert E. Lee, plaintiff moved from the right to the left westbound lane. However, the bus cut over in front of him into the left lane. He immediately applied his brakes and tried to turn his steering wheel to the right but his automobile skidded into the rear of the bus, which was still projecting out from the auxiliary crossing.

Defendant driver testified: He saw plaintiff approaching from his rear at the top of the bridge when he began to move out of the bus terminal but the semaphore signal at Wisner and Robert E. Lee at the time was on caution for plaintiff. He therefore assumed plaintiff would stop at the intersection. He never again saw plaintiff.

The trial judge gave no reasons for judgment but obviously found that defendant was negligent and that defendants failed to prove that plaintiff was contributorily negligent.

The negligence of the defendant is not a serious issue. His own testimony to the effect that he crossed over the two moving lanes of Robert E. Lee and never saw plaintiff’s automobile from the time he left the terminal until the time of the collision convicts him of negligence in failing to see what he should have seen, especially under circumstances of making a left turn from the right side of the road.

However, the main thrust of defendants’ argument is that plaintiff was con-tributorily negligent in failing to keep his automobile under control. Defendants contend that the above dimensions at the scene of the accident demonstrate clearly that plaintiff had room to avoid the accident and failed to do so. They argue that the bus began to move directly across the westbound side of Robert E. Lee into the auxiliary crossing at a time when plaintiff was well over 300 feet away. But this argument rests primarily on the testimony of the bus driver, to some extent corroborated by another driver who was on the scene. The trial judge apparently resolved the conflict between the testimony of plaintiff and that of defendants’ witnesses against the latter and we do not substitute our judgment for his in this regard.

Accepting plaintiff’s testimony as true, the bus moved slowly forward within the terminal, then moved into the right lane, giving plaintiff the impression that the bus was going to proceed ahead. Without giving any left turn signals the bus then turned into the left lane, right in plaintiff’s path, when it was too late for plaintiff to avoid the collision.

On this basis the trial court’s judgment on liability must be affirmed.

QUANTUM

This accident happened on November 8, 1974, and the case was tried in June, 1976. On the day after the accident plaintiff saw his family physician. He was complaining especially of his back and neck as well as his knee. Treatment over the next two months consisted of therapy and medication, but by January his back and neck had gotten worse. It was interfering with his work as a part-time truck driver and warehouseman and prevented him from sleeping well. He was referred to Dr. Kenneth Vogel, a neurosurgeon, whom he saw on January 30.

Dr. Vogel initially diagnosed a chronic cervical strain and recommended massage to the cervical region. In spite of this conservative treatment plaintiff continued to have difficulty in his neck and shoulder. In March, 1975, Dr. Vogel found spasm along the midline right paraspinus muscle and diagnosed facet irritation. He recommended cervical traction for plaintiff. When Dr. Vogel next saw plaintiff in May, 1975, he had been receiving physiotherapy and traction, he complained of recurrent cervical and right arm pain with numbness, and he was found to have muscle spasm as well as brachial plexus tenderness. Dr. Vo-gel saw plaintiff in October and December, 1975, when he continued to have cervical and right shoulder pain with spasm along the right paraspinus muscle. The last time Dr. Vogel saw him was two weeks before trial when plaintiff still had mild limitation of motion and some cervical and interscapu-lar pain. He was advised to continue with conservative care consisting of massage and medication. At that time Dr. Vogel concluded that plaintiff’s injury was “under satisfactory control,” and he gave the following prognosis:

“Two sided. I don’t believe he has a lesion or has a problem which is going to require surgery. I believe he would be able to continue working, continue performing the normal life-style duties that he is now performing. It’s not good. I am not that optimistic in that his history is old. He should have been asymptomatic within two or three months of his injury if we are going to have a complete resolution. Therefore, it’s good and bad.”

The doctor declined to state a percentage disability for plaintiff but he did say that he would advise plaintiff to avoid activities which included excessive lifting, pushing or pulling at extreme levels.

Plaintiff testified that he was still taking medication for his pain and discomfort at the time of the trial. With his injury he is no longer active in sports as he was before the accident because this causes pain in his arm and back.

The trial judge’s award of $25,000 for this injury which persisted until the time of the trial, over 19 months after the accident and which was probably going to persist for an indefinite length of time in the future according to Dr. Vogel, is not beyond the discretion of the trial judge. LSA-C.C. 1934(3) and Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    CITY OF NEW ORLEANS By and Through the PUBLIC BELT RAILROAD COMMISSION OF the CITY OF NEW ORLEANS v. RAPID TRUCK LEASING, INC. formerly Bob, Inc.
    No. 8317.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.

      Dodge, Friend, Wilson & Spedale, Elmer G. Gibbons, III, New Orleans, for plaintiff-appellee.
    Harold R. Ainsworth, New Orleans, for defendant-appellant.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Defendant has appealed from a judgment in the amount of $500.00 for demurrage in connection with the loading of a railroad car by defendant.

The facts are undisputed. International Harvester Company contracted with Missouri-Pacific Railroad to ship tractors to International’s outlet in Utah. International Harvester contracted with defendant to load the tractors on a boxcar of Missouri-Pacific Railroad Company at a designated location in New Orleans. Missouri-Pacific contracted with plaintiff to place the car in the designated location and to deliver it after loading to Missouri-Pacific. In connection with the transaction, Missouri-Pacific prepared its freight waybill and delivered it to plaintiff. On the face of the waybill in a box calling for the full name of the shipper there appeared “Bob, Inc. SEND F/B to International Harvester Co., 2855 Cypress St., Oakland, Calif.” In a box calling for the name of the consignee appeared International Harvester’s Utah outlet.

The parties stipulated that the applicable tariff as amended and modified by the I.C.C. provide that demurrage charges may be collected from the consignor or the consignee.

It follows from the aforesaid recitation of the facts that this defendant was neither the consignor nor the consignee of the tractors and the plaintiff is not entitled to collect the demurrage from defendant pursuant to the tariff. However, plaintiff contends that it is entitled to collect the demurrage from defendant because the freight waybill reflected that defendant was the shipper and that it must rely on that freight waybill. It argues that it “should not be held responsible for an error a shipper may make in failing to see that the bill of lading is correctly filled out or an error that an originating carrier may make in completing the freight waybill.” Preter-mitting whether this equitable argument has any applicability in a case where plaintiff’s cause of action rests wholly on a specific tariff which does not extend liability to anyone other than the consignor or the consignee, we fail to see how equitable principles would justify a judgment against defendant since it did not prepare either the waybill or the bill of lading. Plaintiff’s claim in equity should be directed against either Missouri-Pacific Railroad Company or International Harvester Company who prepared these documents respectively.

Plaintiff further contends that it is entitled to collect on the theory that defendant was an agent acting for an undisclosed principal. Plaintiff cites in support of its position Bio-Chem Medical Laboratories, Inc. v. Harvey, 310 So.2d 173 (La.App. 4th Cir. 1975) and Transport Refrigeration of La., Inc. v. D’Antoni, 281 So.2d 469 (La. App. 4th Cir. 1973); but these cases are inapposite. The principle contained in those cases applies to instances where there is a contract made between the agent and the other party. There is nothing in this record to show that there was a contract between plaintiff and defendant. Plaintiff’s contractual dealings were with Missouri-Pacific Railroad. Defendant’s contractual dealings were with International Harvester Company. There was also a contract between International Harvester and Missouri-Pacific Railroad. The fact that International Harvester erroneously put defendant’s name on the bill of lading as the shipper, or that Missouri-Pacific Railroad Company erroneously put defendant’s name on the freight waybill as the shipper, hardly provides a basis for a contract between defendant and plaintiff.

In argument, plaintiff’s counsel has also suggested that defendant’s use of the waybill on which its name appeared in the box calling for the name of the shipper created some kind of an estoppel in plaintiff’s favor. The record does not contain any evidence to show that plaintiff relied to its detriment on any act or omission by defendant in this connection so that plaintiff failed to prove its case under this theory.

Accordingly, the judgment appealed from is reversed, and there is judgment in favor of defendant, Rapid Truck Leasing, Inc., formerly Bob, Inc., and against City of New Orleans by and through The Public Belt Railroad Commission of the City of New Orleans, dismissing plaintiff’s suit.

REVERSED AND RENDERED.