text:
    The FIDELITY AND CASUALTY COMPANY OF NEW YORK v. CONTINENTAL CASUALTY COMPANY et al.
    No. 11329.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      David W. Robinson, Baton Rouge, of counsel for plaintiff Fidelity & Cas. Co. of New York, appellant.
    Paul H. Spaht, Baton Rouge, of counsel for defendant Continental Cas. Co., et al., appellee.
    Robert Kleinpeter, Baton Rouge, of counsel for defendant Dixie Auto Ins. Co., appel-lee.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This suit arises as a result of an automobile accident which occurred on August 2, 1973, on U.S. Highway 61 near Laurel Hill in West Feliciana Parish involving a large tractor-trailer type truck and a 1971 Chevrolet. Immediately prior to the accident, the tractor-trailer owned by Western Lines, Inc. (Western Lines) and driven by Everett W. Hamilton, its employee, was proceeding north on Highway 61 at approximately 45 to 55 miles per hour behind a panel truck owned by Seven Day Distributing Company (Seven Day) and driven by its employee, Sinclair Russ. Near the point of collision, the Seven Day truck decelerated to make a right turn onto the Old Highway 61 and the Western Lines truck swerved left into the southbound lane to avoid hitting the Seven Day truck. Almost instantaneously the Western Lines truck collided with the 1971 Chevrolet automobile owned and driven by Eugene Richardson, which was traveling in a southerly direction on Highway 61. A passenger in the Richardson vehicle, Rose Cummings, was fatally injured as a result of the collision.

The Fidelity & Casualty Company of New York (Fidelity), the liability insurer of Western Lines, paid Mrs. Cummings’ husband, George Cummings, $32,500 in settlement of a wrongful death claim.

Fidelity brought suit against Continental Casualty Company (Continental), the insurer of Seven Day, and Dixie Auto Insurance Company (Dixie), Eugene Richardson’s insurer, for contribution under Louisiana Civil Code Article 2103, based on the following contentions quoted below from appellant’s brief:

“ * * * (1) [TJhat Hamilton’s entry into the opposing traffic lane was contributed to by the negligence of Russ in suddenly slowing his truck in such a manner as to cause the following driver to swerve to avoid a collision, and (2) that Richardson’s negligence in driving his automobile at an excessive rate of speed contributed to the cause of the death of his guest passenger.”

The case was submitted to the trial court on certain stipulations of fact and depositions. The trial judge rendered judgment in favor of the defendants, Dixie and Continental, and against the plaintiff, Fidelity, stating in his written reasons:

“Counsel for plaintiff [Fidelity] contends that LSA-R.S. 32:104 controls the situation concerning the Russ vehicle.
‘LSA-R.S. 32:104 provides as follows:
‘A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.
‘B. Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.
‘C. No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal, (emphasis added)’
“While the left-turn accident predominates in our jurisprudence in the cases where the requirements of this statute have been applied, it also applies with respect to the driver making a right turn. The effect of the statute is to proscribe any sudden and unsignaled decrease of speed on the highway in such a manner as to endanger approaching traffic, whether from the front or rear, and whether the driver is turning right or left. In Schwartzberg v. Clark-Dunbar, Inc., 309 So.2d 754 (La.App., 3rd Cir., 1975), the Third Circuit Court of Appeal said with respect to a case involving a right turn:
‘As a general rule, the driver of the forward vehicle should look for vehicles so close behind that they may be imperiled by a sudden unsignaled stop which the following driver has no reason to anticipate * * *.’ [309 So.2d at 756]
“In Williams v. State Farm Mutual Automobile Insurance Company, 266 So.2d 718 (La.App., 3rd Cir. [1975]), the rule applicable to sudden decreases of speed on the highway was stated thusly:
‘A person who intends to turn [from] or stop or suddenly decrease his speed upon a roadway must first ascertain that the maneuver can be made with reasonable safety and then give an appropriate signal to following vehicles. * * * ’ (266 So.2d at 720)
“Thus, whether a driver intends to make a left turn or a right turn, he must under the statute: (1) make certain that he can complete the maneuver without endangering traffic approaching from the front or rear; (2) make certain that any sudden decrease of speed on his part will not endanger the following vehicles; and (3) give timely and adequate signal of his intention. Reeves v. Caillouet, 46 So.2d 373 [La.App.1st Cir.] (1950); McNeely v. United States Fidelity & Guaranty Company, 69 So.2d 600 [La.App.2nd Cir. 1953]; Nomey v. Great American Indemnity Company, 121 So.2d 763 [La.App.2nd Cir.] (1960); Foreman v. American Automobile Insurance Company, 137 So.2d 728 [La.App.3rd Cir.] (1962); Aetna Casualty and Surety Company v. Henry, 307 So.2d 375 [La.App.1st Cir.] (1974); and Dupre v. Olympic Insurance Company, 232 So.2d 544 [La.App.3rd Cir.] (1970).
“The requisite showing has not been made in this case to amply support the conclusion that, more probably than not, Russ failed to comply with the statutory duty imposed on him in that he suddenly decreased the speed of his truck without giving warning and in such a manner as to imperil drivers to his rear. Negligence on the part of Hamilton arises from the fact that his truck encroached into the opposing traffic lane. Again, looking at the case from the standpoint of Cummings, the liability on Hamilton’s part arises from this fact alone.
“It is the finding of this Court that the driver of the van owned by Seven Day Distributing Company, Sinclair Russ, was in the process of making a normal and orderly turn from U.S. Highway 61 onto Old Highway 61 at a point that he customarily and frequently used. There was no sudden stop indicated by the evidence. Therefore, it is the opinion of this Court that the driver, owner and insurance company of the Seven Day Distributing Company van share no responsibility for the ensuing accident and deaths.
“It is further the finding of this Court that the driver of the Western Lines, Inc. truck-trailer crested the top of the hill; turned his head, by his own admission, to inspect the tarpaulin and security of his load; and when he turned around he was met with * * * [an] emergency situation created solely by his own negligence in not keeping a sufficient forward lookout. The driver, Everett W. Hamilton, then swerved to the left in an effort to miss the Seven Day van, without braking, as there was not sufficient time to do so. This is corroborated by testimony of the Rev. William Henry Marshall, who testified that he was following the Western Lines truck. There was no evidence of Hamilton’s slowing down, no brake lights, no signal for a turn, no skidding and no smoke or noise as if there existed any emergency situation.
“The assessment of negligence on the part of Richardson presents another question. Although there is some evidence that his vehicle was traveling at a high rate of speed when the collision occurred, this fact alone does not prove that he was negligent. There is lacking the requisite showing that this alleged negligence constituted a legal cause of the accident.
“The accident occurred almost immediately upon entry unto the left, southbound lane, whereupon the Western Lines truck collided with the automobile driven by Eugene Richardson * * *.
******
“Directing our attention to counsel’s argument that speed may have contributed to the severity of the damage, we observe in McDaniel v. Welsh, (La.App.1st Cir., 1970) 234 So.2d 833 at page 839:
‘However, violation of a speed law does not render a motorist liable unless the infraction is a cause in fact of the accident. A cause in fact is one without which an accident would not have occurred. Arnold v. Griffith, La.App., 192 So. 761. It must also be a substantial causal factor to render a motorist liable. Dixie Drive It Yourself Sys. New Orleans Co. v. American Beverage Co. 242 La. 471, 137 So.2d 298. Had Welsh been traveling at a speed of 45 miles per hour, he could not have avoided this particular accident.’
“ * * * [T]he Court cannot say from the evidence before it that more probably than not the death of Rose Cummings (as opposed to the occurrence of the collision) was contributed to by the excessive speed of the Richardson vehicle. The Court cannot hold Richardson’s insurer liable for her death as a joint tort-feasor along with Hamilton, [and] his respective insurer.
“Plaintiff has the burden of proving Richardson’s negligence and as a consequence of the McDaniel case, plaintiff must not only argue but successfully substantiate that speed, if in fact it did exist at an excessive rate, was that cause without which the accident would not have occurred.”

After a careful review of the record, we conclude that the findings of fact and the application of law to the facts of the case by the trial court are correct. Therefore, the judgment of the trial court is affirmed. The costs of these proceedings are assessed to appellant.

AFFIRMED.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Miss Minnie NEFF v. FORD MOTOR CREDIT COMPANY.
    No. 11334.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      Ralph W. Brewer, Baton Rouge, of counsel for plaintiff Miss Minnie Neff appellee.
    G. Michael Pharis, Baton Rouge, of counsel for defendant Ford Motor Credit Co. appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This is a suit for damages arising from the allegedly wrongful seizure and sale of an automobile owned by the plaintiff-appel-lee, Minnie Neff. The defendant-appellant, Ford Motor Credit Company (Ford), appeals the judgment of the trial court which awarded the plaintiff $1,450.00, the appraised value of the vehicle.

The issue presented on appeal is whether the failure to serve Ms. Neff with notice of seizure rendered defective the subsequent sale of her property, or whether service upon an attorney appointed to represent her was sufficient.

On June 30, 1975, Ms. Neff purchased a used 1972 Ford automobile from Audubon Ford for a purchase price of $2,584.28, of which $700.00 was paid in cash. The remainder of the purchase price was financed with Ford, and in connection therewith Ms. Neff executed a promissory note payable in twenty-four monthly installments beginning August 14, 1975. Ms. Neff failed to make the payments due on August 14, 1975, and September 14, 1975. Consequently, Ford instituted executory proceedings on September 26, 1975, in Suit No. 185,452 on the docket of the Nineteenth Judicial District Court (said suit being filed in evidence in the instant proceeding as “Exhibit Joint-1”). The subject property was seized on October 3, 1975, pursuant to a writ of seizure and sale, and was sold on October 29, 1975, at a Sheriff’s sale.

At the time of the institution of the proceedings by Ford, Ms. Neff was confined in the East Louisiana State Hospital. She was confined from September 16, 1975, until September 29, 1975, pursuant to a Coroner’s commitment and was treated for schizophrenia. In Ford’s petition for execu-tory process it was requested that an attorney be appointed by the court to represent Ms. Neff in order that service might be made on the attorney appointed. Ford, however, also requested that service be made on the plaintiff at the East Louisiana State Hospital. The court appointed William L. Taylor, an attorney, to represent the plaintiff.

Prior to Ms. Neff’s release, at the suggestion of Ford, the vehicle was delivered to its office by Ms. Neff’s parents, but without her approval. Notice of the October 3, 1975, seizure was served October 6,1975, on the court-appointed attorney.

The trial court herein held that under the provisions of Louisiana Code of Civil Procedure Article 2640, service of a certified copy of the petition upon the plaintiff was not required and, therefore, the seizure was proper. However, the court held that the failure to serve notice of seizure upon the plaintiff pursuant to Louisiana Code of Civil Procedure Article 2721 invalidated the sale and constituted a wrongful conversion of plaintiff’s property. The trial court found Louisiana Code of Civil Procedure Article 733 to be inapplicable because Ms. Neff had neither been declared an interdict nor a mental incompetent under the law.

Ford contends that because Ms. Neff was confined in a mental hospital at the time of the institution of the proceedings, she was, therefore, a mental incompetent and under Louisiana Code of Civil Procedure Articles 2641 and 2674(5) could be served with notice of seizure through an attorney appointed by the court to represent her.

In a suit to foreclose by executory process, Louisiana Code of Civil Procedure Article 2674(5) provides:

“The court shall appoint an attorney at law to represent the unrepresented defendant in an executory proceeding under the following circumstances:
“(5) When the defendant is a minor, or a mental incompetent, who has no legal representative at the time of the institution of the proceeding.”

This provision is consistent with Louisiana Code of Civil Procedure Articles 733 and 5091 which provide for court-appointed attorneys to represent mental incompetents made defendants in ordinary actions. When an attorney is appointed to represent a defendant in an executory proceeding pursuant to Article 2674, all service is made upon the attorney. La.-C.C.P. art. 2641.

The question arises, however, as to when a situation permits or requires that an attorney be appointed to represent a mental incompetent. First, there is a question about what constitutes mental incompetency within the meaning of Article 2674(5). Also, there is question concerning what showing a plaintiff in an executory proceeding must make as to the defendant’s mental incompetency. Against these considerations, also, is the overriding consideration that executory process is a harsh remedy and due process demands strict compliance with the provisions of law authorizing it. Myrtle Grove Packing Company v. Mones, 226 La. 287, 76 So.2d 305 (1954); General Motors Acceptance Corporation v. Henderson, 228 So.2d 323 (La.App. 3rd Cir. 1969) (Tate, J., concurring).

While mental incompetency is frequently mentioned, Louisiana procedural provisions do not provide a legal definition of a “mental incompetent.” See, e. g., La.C.C.P. arts. 733, 2674, 5091. Our Civil Code defines “[p]ersons of insane mind” and a mental incompetent may be equated with such a person. Louisiana Civil Code Article 31 provides:

“Art. 31. Persons of insane mind are those who do not enjoy the exercise and use of reason, after they have arrived at the age at which they ought, according to nature, to possess it, whether the defect results from nature or accident. This defect disqualifies those who are subject to it, from contracting any species of engagement, or from managing their own estates, which are for this reason placed under the direction of curators.”

It appears, therefore, that mental incompetency is a conclusion of fact based upon evidence. See Wilcox v. City of Hammond, 163 La. 489, 112 So. 375 (1927). Louisiana Code of Civil Procedure Article 733 makes it clear that mental incompetency is not commensurate with interdiction in that, in part, it provides:

“ * * * If an incompetent has no curator, but is interdicted, or committed to or confined in a mental institution, the action shall be brought against him, but the court shall appoint an attorney at law to represent him.”

In a suit for foreclosure under exec-utory process a plaintiff may ask the court to appoint an attorney to represent a mental incompetent under Code of Civil Procedure Article 2674(5). Evidence “as to the necessity for appointing an attorney at law to represent an unrepresented defendant” need not be in authentic form. However, the facts justifying the appointment of an attorney must be proved at least by a verified petition or affidavit submitted with the petition. La.-C.C.P. art. 2637.

In the case in point, Ford’s petition for executory process merely stated:

“8.
“Upon information and belief, plaintiff alleges that defendant can be served at East Louisiana State Hospital, and service is being requested there. Because of the fact that defendant is in that institution, plaintiff requests that an attorney be appointed to represent her with service also to be made upon the attorney.” (“Exhibit Joint-1,” Suit No. 185,452, entitled “Ford Motor Credit Company vs. Minnie B. Neff”)

The petition therein did not allege with specificity that Ms. Neff was mentally incompetent or that she was even committed or confined to the East Louisiana State Hospital. The petition merely alleged that she was “in that institution” and could be served there. The institution is not alleged to be one solely for the treatment of mentally incompetent persons. Obviously, the judge who signed the order for seizure and sale did not feel that Ford had proved the necessity for appointing an attorney, thereby dispensing with the requirement for serving notice of seizure upon Ms. Neff. The order of seizure and sale in Exhibit Joint-1 hereinabove referred to says:

“IT IS ORDERED that a writ of seizure and sale be issued herein forthwith, as prayed for and according to law.
“IT IS FURTHER ORDER[E]D THAT defendant be served by personal service and that Wm. L. Taylor be appointed to represent the defendant who is [institutionalized] at the East Louisiana State Hospital.” (Emphasis added)

The appointment of an attorney therein was done out of an abundance of caution in order to protect the rights of the debtor; however, in appointing an attorney to represent Ms. Neff the court did not dispense with the notice requirements of Louisiana Code of Civil Procedure Article 2721. Yet, the instructions for service were not followed.

As correctly pointed out by the trial court in this suit, in executory proceedings it is not necessary that a certified copy of the plaintiff’s petition and of the court order rendered thereon be served upon the defendant. Louisiana Code of Civil Procedure Article 2640. The trial court, therefore, held the order issuing the writ of seizure and sale valid and the seizure to be proper because all of the requirements necessary to prove Ford’s right to use executo-ry process were met. La.-C.C.P. art. 2635. See Hood Motor Company, Inc. v. Lawrence, 320 So.2d 111 (La.1975). This holding has not been appealed by the plaintiff-appellee. Therefore, we only consider whether the subsequent sale was invalid, giving rise to damages due Ms. Neff.

Louisiana Code of Civil Procedure Article 2721 requires that notice of the seizure be served upon the defendant in an executory proceeding and that such notice cannot be waived. See La.-C.C.P. art. 2721, Comment (b). Notice of seizure in Suit No. 185,452 was served only upon the attorney appointed by the court to represent Ms. Neff. Such service was not legally sufficient in that proper evidence was not presented as to the necessity for the appointment of the attorney. La.-C.C.P. art. 2637. Notice of the seizure was never made upon Ms. Neff as ordered by the judge in his order to issue the writ of seizure and sale. Thus, as held by the trial court herein, the Sheriff’s sale of Ms. Neff’s vehicle made without notice of seizure constituted a wrongful dispossession of her property by Ford.

We are in accord with the trial court’s finding that the sale of Ms. Neff’s property without notice of seizure entitled her to the appraised value of the vehicle, or $1,450.00 (although the car was sold to her three months earlier for $2,584.28), because no additional evidence of the value of the car was introduced. However, the trial court failed to consider Ford’s claim raised in its supplemental answer that it is entitled to a “set-off” for the remaining unpaid balance due on the note. The net amount remaining due at the time the executory proceedings were instituted was $2,172.06. The vehicle sold at Sheriff’s sale for $966.68, or two-thirds of the appraised value, leaving a principal deficiency of $1,205.38. The attorney’s fees and costs of the Sheriff’s sale, when added, raises the deficiency to a total of $1,887.39. Ford’s claim for a “set-off,” or compensation raised by affirmative answer is in reality a reconventional demand for a deficiency judgment. See La.-C.C. arts. 2207-2216; La.-C.C.P. arts. 2771, 2772. However, Ford is not entitled to a deficiency judgment because of its failure to follow the formalities of service of the notice of seizure upon the plaintiff as required by the provisions of executory proceedings. La.-C.C.P. art. 2721; see Hood Motor Company v. Lawrence, supra, on remand, 334 So.2d 460 (La.App. 1st Cir. 1976); Universal C.I.T. Credit Corporation v. Spring, 242 So.2d 73 (La.App. 1st Cir. 1970).

Additionally, the debt which appellant seeks to interpose against the damages awarded is not compensable. La.-C.C. art. 2210(1) provides:

“Compensation takes place, whatever be the causes of either of the debts, except in case:
“1. Of a demand of restitution of a thing of which the owner has been unjustly deprived.”

The present suit is for the restitution, or value, of a thing of which Ms. Neff has been unjustly deprived and falls within the exception provided for by this provision of law. It is well settled that a set-off or compensation is not allowable in a suit for tortious or wrongful conversion. See Hitt v. Herndon, 166 La. 497, 117 So. 568 (1928); Ferrara v. Polito, 167 So. 120 (La.App. 1st Cir. 1936); and Tolbird v. Cooper, 136 So.2d 83 (La.App. 3rd Cir. 1961).

Therefore, for the foregoing reasons, the judgment of the trial court is affirmed, at the appellant’s costs.

AFFIRMED.


text:
    Dorita Lackey FLORENCE et al. v. CLINIQUE LABORATORIES, INC., et al.
    No. 11340.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.

      Felix R. Weill, Baton Rouge, of counsel for plaintiffs-appellees Dorita Lackey Florence, et al.
    H. Evans Scobee, Baton Rouge, of counsel for defendants-appellants Clinique Laboratories, Inc. and Commercial Union Ins. Co.
    O’Neal Walsh, Baton Rouge, for D. H. Holmes and Aetna.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This action was initiated by the plaintiffs-appellees, Mrs. Dorita Florence and Charles Florence, against a manufacturer of cosmetics, Clinique Laboratories, Inc. (Clinique), and the seller thereof, D. H. Holmes, Ltd. (Holmes). Also made defendants in the suit were Clinique’s insurer, Commercial Union Insurance Company (Commercial), and Holmes’ insurer, Aetna Casualty and Surety Company (Aetna). The trial court rendered judgment against all defendants, in solido, and awarded Mrs. Florence $5,000 in general damages and Mr. Florence $84.51 in special damages. Cli-nique and Commercial appeal the judgment of the trial court denying liability.

Holmes and Aetna did not perfect an appeal from the judgment rendered against them in favor of the plaintiffs. Holmes and Aetna merely “answered” the appeal filed by Clinique and Commercial.

Louisiana Code of Civil Procedure Article 2133 provides:

“An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appel-lee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an ap-pellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee’s action.”

In discussing this provision, the Supreme Court in Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976), has said:

“The article does provide that by answering an appeal, an appellee, without filing an appeal on his own .behalf, may seek relief from any portion of the judgment rendered against him in favor of the appellant. It does not, however, give to an answer the effect of an appeal with respect to any portion of the judgment rendered against him in favor of a party not an appellant. [Citations omitted]” (334 So.2d at 411)

The answer filed by Holmes and Aetna does not constitute an appeal of the judgment rendered against them in favor of the plaintiffs, who are not appellants herein. Therefore, the judgment of the trial court as it pertains to Holmes and Aetna is final.

On September 6, 1974, at the suggestion of a neighbor, Mrs. Florence, a 32-year-old woman, went to D. H. Holmes with the purpose of purchasing Clinique cosmetics. She was waited on at the cosmetics counter by Joan Goodwin, who represented herself to the plaintiff as a “Clinique cosmetic consultant.” The plaintiff told Ms. Goodwin that she had “sensitive skin.” Based on Ms. Goodwin’s analysis of the plaintiff’s skin “type,” Ms. Goodwin recommended that the plaintiff purchase certain Clinique cosmetics and outlined in writing on the back of a Clinique Directory a “program” of cosmetics use for the plaintiff to follow.

Mrs. Florence purchased the suggested products and began the “program” as suggested by Ms. Goodwin. She returned on September 24, 1974, to purchase additional products. After using the Clinique products about two months, the plaintiff’s skin “broke out.” The break-out at this time was characterized by the plaintiff as “gradual” and “mild.” Because of the disturbing development of having facial blemishes, the plaintiff went back to the store on November 14,1974. On this occasion Ms. Goodwin was not in the store, and she was attended by Kathy Tate, who also represented herself to be a Clinique consultant. Ms. Tate told the plaintiff that she had been programmed wrong initially and reprogrammed her on different products. The plaintiff purchased the necessary additional products and began to follow this new “program.”

Subsequent to the November visit to Holmes, Mrs. Florence’s face became much worse and the eruptions became “huge.” According to the plaintiff, the use of the Clinique “Exfoliating Lotion” in full strength as recommended by Ms. Tate in November, as opposed to one-half strength as recommended by Ms. Goodwin, “burned” her face. This violent and unsightly flareup in her facial skin condition occurred about one week before a planned holiday trip to Texas to visit friends, family and former classmates. Consequently, the plaintiff became depressed and embarrassed about her appearance during the trip.

Since the lotion began causing a burning sensation, the plaintiff discontinued use of the Clinique products for the two-week period of time while on the trip. When she returned, her face was better, but it was still “broken out” and “blotchy.” According to Mrs. Florence, on December 30 she took the products back to Holmes with the intention of returning them and told Ms. Goodwin she had a reaction to them and needed a dermatologist.

The plaintiff claims that when she went to Holmes on December 30 Ms. Goodwin said that Ms. Tate had advised her incorrectly and recommended returning to the original program of Clinique cosmetic use. Also, Mrs. Florence said Ms. Goodwin discouraged her from seeing a dermatologist. Pursuant to Ms. Goodwin’s urgings, Mrs. Florence continued to use the Clinique products for several more months, but she continued to have problems with her skin. Finally, in March, 1975, Mrs. Florence discontinued using the products and in April, 1975, she visited a dermatologist, Dr. Judith Patrick, who successfully treated the plaintiff.

According to the plaintiff, prior to using the Clinique cosmetics, she had a relatively unblemished complexion. However, she admitted having experienced some difficulty with blackheads for about the previous five years. This problem with blackheads prompted the use of Clinique. The plaintiff was aware that she had sensitive skin because she had previously developed rashes or flaky skin while using other cosmetics. The plaintiff claims she did not discontinue use of the Clinique products (as she had done with other products which gave her difficulty) because she was assured by the Clinique representatives that she could not possibly be allergic to the Clinique and that its continued use would eventually improve her condition. She claims she was told by Ms. Goodwin that her skin “would get worse before it got better.” Mrs. Florence alleges that the following residual effects are the result of her skin problems: bumps under the skin, discoloration, pitted scars and enlarged pores.

Dr. Judith Patrick, who treated the plaintiff in April, was able to successfully clear up the eruptions with antibiotics and discontinued cosmetics use. Dr. Patrick diagnosed the plaintiff’s condition as an “acne flare-up” caused by the Clinique use. Dr. Patrick stated that the plaintiff had acne-prone skin which was aggravated by the application of creams or make-up applied to the skin. She stated that the exfoliating lotion might cause irritation when applied to skin eruptions but that the exfoliating lotion would not cause the skin problems. Dr. Patrick stated that the plaintiff’s problem was not contact dermatitis or allergy and, therefore, that the hypoallergenicity of the products had nothing to do with the acne problem. Dr. Patrick refused to express an opinion as to the probability that the residual effects which she characterized as' “very minimal” pitting were caused by the acne problems which resulted from the use of the Clinique products.

Dr. Martin L. Bell, a cosmetic surgeon and not a dermatologist, was consulted by the plaintiff on November 12, 1975. His conclusion that the plaintiff’s condition was a contact allergy was based entirely on the patient’s history as recited by the plaintiff. Dr. Bell stated that Dr. Patrick would be in a better position to diagnose the plaintiff’s problem because she treated her during the acute phase.

We agree with the holding of the trial court that the Clinique products were not defective and, therefore, Clinique is not strictly liable for the harm resulting from the use thereof. See Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971); Rhodes v. Max Factor, Inc., 264 So.2d 263 (La.App. 4th Cir. 1972).

However, the trial court found that the Clinique literature and the salespersons made representations that Clinique’s product were allergy tested and hypoallergenic, which representations it found constituted an actionable warranty pursuant to Louisiana Civil Code Article 2547. However, it is clear from Dr. Patrick’s testimony that the plaintiff did not have an allergic reaction to the Clinique product. Thus, there is no showing that the warranty as construed by the trial court was breached.

Also, any statements made by the salespersons or by the Clinique literature to the effect that the Clinique products were “the future of beauty” or that they were “just the products for you [plaintiff]” do not constitute material declarations giving rise to actionable warranties within the meaning of Article 2547. These statements are merely in the nature of a sales pitch arising in the ordinary course of merchandising, the purpose and effect of which a reasonable person should be knowledgeable.

After a careful reading of the trial court’s written reasons for judgment, we conclude that the trial court deemed the fundamental basis of liability of the defendants to be the negligent conduct of the salespersons with whom the plaintiff dealt, for as the trial court states:

“The most important point, however, is that the agents of Clinique and Holmes; who were paid by and trained by both defendants, were negligent in their continuous representations of the product after it was apparent that it was causing problems for Mrs. Florence.”

The salespersons represented themselves to the plaintiff as experts in the area of cosmetics. By “typing” her skin and, in effect, “prescribing” the use and application of certain cosmetics, they erroneously led plaintiff to believe they possessed certain expertise which they did not have. When the plaintiff experienced problems with her skin as a result of the use of the Clinique products, Ms. Tate and Ms. Goodwin, on November 14, 1974, and December 30, 1974, respectively, attempted to adjust the use of the products to prevent Mrs. Florence from discontinuing the use of them. By Ms. Goodwin’s assertions that the plaintiff’s skin might get worse before it got better and her advice against seeing a dermatologist, she prolonged the plaintiff’s use of the products and her skin condition. The plaintiff’s continued use of the products resulted because of her reliance upon the apparent expertise asserted by the salespersons by whom she was advised.

It is clear to this Court that both Ms. Goodwin and Ms. Tate were negligent in representing themselves as having certain expertise which they did not possess, in giving advice of a medical nature which they were unqualified to give, and in encouraging the use of the products by Mrs. Florence after the acne flare-up. These acts of negligence caused or contributed to the continuation of Mrs. Florence’s skin difficulties. The trial judge apparently found that this conduct on the part of the salespersons was also the cause of the residual facial imperfections sustained by Mrs. Florence which, though minimal, apparently causes her much concern. Even though Dr. Patrick would not express an opinion as to the cause of these residual blemishes, there is sufficient evidence in the record from which the trial judge could have reasonably reached this conclusion, and the proper allocation of trial and appellate functions requires that we not disturb this factual finding in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

In order for Clinique to be liable vicariously for the negligent conduct of the salespersons, a master-servant relationship must exist, rather than merely an agency relationship. La.-C.C. art. 2320; Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968).

The essential' feature in establishing an employer’s vicarious liability is the right of control over the time and physical activities of the party and the existence of a close relationship between the parties. A servant is a particular type of agent who has a very close relationship to the master and who is subject to the master’s control. Blanchard v. Ogima, supra; Traders & General Insurance Company v. Robison, 289 So.2d 178 (La.App. 1st Cir. 1973).

While Ms. Goodwin and Ms. Tate were paid a commission by Clinique and received sales training by Clinique, it is clear that they were the employees of Holmes and not of Clinique. Holmes exercised the right of control of the time and physical activities of these salespersons. Clinique, on the other hand, exercised little or no control over their time, physical activities or conduct in effecting the sale of the cosmetic products. Therefore, it must be concluded that the salespersons were not the servants of Clinique, thus relieving Cli-nique from liability for their negligent conduct.

For the foregoing reasons, the judgment of the trial court as to appellants, Clinique Laboratories, Inc., and Commercial Union Insurance Company, is reversed, and said judgment is otherwise affirmed. The costs of these proceedings are assessed to the appellees.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


text:
    Wilbert LECOMPTE v. Joseph Edward REECE and Mrs. Helen Thibodaux Reece Fountain.
    No. 11419.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Keith M. Whipple, Houma, for appellant.
    Ted J. Borowski, Houma, for appellees.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: LANDRY, Judge. CLAIBORNE, Judge COLE, Judge,

text:
    Robert RODRIGUEZ v. NORTHWESTERN NATIONAL INSURANCE COMPANY et al.
    No. 11099.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 18, 1977.

      L. B. Ponder, Jr., Amite, for Robert Rodriguez, plaintiff appellee.
    Judith Atkinson Chevalier, Baton Rouge, for Northwestern Nat. Ins. Co., et al.
    Before LANDRY, ELLIS, LOTTINGER, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

Defendants, Northwestern National Insurance Company and Interstate Surplus Underwriters, Inc. (Insurers), appeal from judgment awarding plaintiff, Robert Rodriguez (Insured), recovery of $25,000.00, pursuant to a fire insurance policy covering a 1972 Model Case Log Skidder (a log rolling and loading machine used in timber cutting operations), which machine burned while being used in Insured’s logging business. Insurers also appeal from judgment in favor of Crawler Supply Company, Inc. (In-tervenor), against Insured, Intervenor having sold the skidder to Insured who owed a balance of $13,374.06 on its purchase price. Insured has answered Insurers’ appeal praying for penalties and attorney’s fees which were denied by the trial court. We reverse and render judgment rejecting Insured’s demands.

Insurers urge that the trial court erred in: (1) Holding that the Insured’s breach of certain warranty provisions of the policy did not bar recovery for the loss; and (2) Awarding Insured the face value of the policy instead of a lesser sum for which the skidder could have been repaired.

Subject skidder, bearing Serial Number S 5429 — Body Type 300C, was purchased by Insured from Crawler on July 3, 1972, for the sum of $29,648.71. A credit of $5,790.76 was allowed for the tradein of an old skid-der, leaving a balance of $23,857.95, to which was added $6,711.33 for insurance and finance charges. At the time of purchase, insurance which Rodriguez held on his old skidder was transferred to the new machine until policy expiration.

On January 8, 1973, Northwestern’s agent, Interstate Surplus Underwriters, Inc., insured the skidder against loss by fire “(among others)” in the sum of $25,000.00, for a period of one year. Financial Services of Baton Rouge, Louisiana, purchaser of the chattel mortgage note taken by Crawler in payment, was named as mortgagee. Insured paid Crawler the premium of $1,281.25 charged for the coverage.

Insurers declined payment of the loss because of Insured’s alleged breach of the following policy warranty condition:

“It is understood and agreed by the assured that as respects the peril of Fire this insurance is NULL and VOID if any condition of this warranty is violated as respects equipment insured hereunder while operating or located in woods or forest or while land clearing.
“2. It is warranted that an underwriters laboratory approved all purpose fire extinguisher with a rating of at least 1A or 10BC will be provided on each piece of equipment insured at all times such equipment is being operated and such extinguisher will be maintained in good working condition and recharged when necessary. The assured may remove the extinguisher when the equipment is not in operation to prevent theft.
“3. It is warranted that all equipment operated in the woods or forest or while land clearing shall be shut down and inspected at frequent intervals during the working day to remove any accumulation of leaves, trash or fuel from the engine compartment and specifically from the exhaust manifold and protection belly pan. It is specifically a condition that such trash and accumulation shall be removed before discontinuing work for the day.”

The skidder is best described as a ponderous machine equipped with a front end bulldozer type blade designed to roll and move logs. Immediately behind the blade is the engine compartment which houses the engine or power plant which furnished the energy for locomotion of the skidder and operation of its various power operated components. The sides of the engine compartment are enclosed with a heavy metal mesh which admits air for engine cooling and protects the engine and its accessories against damage from limbs, trees, brush and debris, the presence of which is expect-able. Immediately behind the engine compartment is the operator’s cab in which is situated the driver’s seat. Beneath the driver’s seat is the transmission which utilizes and controls the use of engine power according to the operator’s wishes at any given moment. The cab floor is covered by a metal plate referred to as the “floor boards” and which is held in place by a number of nuts and bolts. The floor boards are provided with appropriate holes or openings of various sizes and shapes to accommodate several levers, pedals and controls which extend into the cab for the driver’s use in operating and controlling the skidder. Behind the cab is a crane type unit used to pick up and pull logs. Subject skidder came factory equipped with a 5BC fire extinguisher mounted on a metal bracket welded to the right side of the driver’s cab. Prior to the fire, the fire extinguisher on Insured’s skidder was placed in a tool box at the rear of the unit because the bracket in which it was kept had been broken off by a tree or limb.

On November 29, 1973, the skidder was being operated by Insured’s employee, Jack Lanier, an experienced operator, in a wooded area approximately two and one-half miles from Springfield, Louisiana. Lanier had commenced work at 7:00 A. M., after first cleaning all accumulated debris from the engine compartment and other areas of the skidder, as was his daily custom. About noon, while the machine was in operation, Lanier noted fire coming from beneath the driver’s seat and floorboards of the cab. He jumped from the machine, obtained the fire extinguisher from the tool box, and attempted to put out the fire, but the extinguisher would not work. After several unsuccessful attempts to use the extinguisher, Lanier got into his truck, drove approximately one-half mile to a telephone, and summoned the Springfield Fire Department. A fire truck arrived on the scene approximately 20 to 30 minutes later, at which time the fire was raging up the sides of the skidder. The fire was eventually extinguished but the skidder was virtually a total loss. Neither the precise cause nor the origin of the fire could be determined.

Insured concedes he never checked the fire extinguisher after purchasing the skid-der. He trained Lanier as an operator but never instructed Lanier to clean the machine daily at frequent intervals. He did suggest that the machine be cleaned in the evening before Lanier left the jobsite. To Insured’s knowledge, Lanier never cleaned the skidder during the day unless some unexpected event, such as brush or limbs becoming lodged in the blade, made it necessary to shut the skidder down temporarily. Insured readily acknowledged that a skidder is highly susceptible to fire damage if trash and other combustibles are allowed to accumulate in the engine compartment and protection belly pan. It is conceded that Insured previously lost two other skid-ders by fire; one while a skidder was in operation, and the other while a skidder was being repaired in the woods by one of Crawler’s mechanics. Insured explained that he did not check the extinguisher or comply with the warranty regarding cleaning, because he had little formal education and did not read the insurance policy.

Lanier testified he cleaned the skidder each morning before beginning work and rarely cleaned it during the day. On the day of the fire he cleaned the machine before starting work and did not clean it thereafter. He stated he would occasionally clean the skidder during operation time but only when he felt he had some spare time. He testified that when he noticed the fire it was not coming from the engine compartment but from the transmission area beneath the driver’s seat.

Crawler’s Vice President, William Flores, and General Manager, William J. Busbee, testified in effect that their examinations disclosed the fire probably started in the transmission because that area of the machine appeared most heavily damaged. They both attested to extreme vulnerability of a skidder to fire, for which reason such equipment was difficult to insure. Busbee added that fire in the transmission would be difficult to combat without removing the floorboards which requires removal of several nuts and bolts which hold it in place. He explained that the only openings in the floorboards were intended to accommodate control devices and that these openings were small. He would not say that a fire in the transmission could not be controlled with a hand operated fire extinguisher, but he had serious doubts about the matter. He was of the opinion that to combat such a fire effectively, the floorboards would have to be removed. Busbee conceded that the collection of leaves, straw and oil in a skid-der are the main causes of fire in such equipment. He expressed the opinion that there is no really effective way to combat fire on skidders but that frequent cleaning during daily operation would materially reduce the hazard. He added, however, that such frequent shutdowns for cleaning would render skidders almost useless. He personally felt that, all things considered, a daily cleaning is a reasonable safety precaution.

Insured concedes the warranty conditions were not fulfilled. He reasons, however, that the breaches did not increase the physical hazard involved because the record shows an operable fire extinguisher of the type called for would not have extinguished the fire and also because the cleaning process was reasonable.

Insurers argue that the policy is subject to the general insurance law governing warranty as set forth by LSA-R.S. 22:641 because the policy warranty is in the nature of an executory or promissory warranty which is part of a “floater policy” providing multiple coverage. Section 641, above, provides:

“If any breach of a warranty or condition in any insurance contract occurs pri- or to a loss under the contract, such breach shall not avoid the contract nor avail the insurer to avoid liability, unless the breach exists at the time of the loss.”

Insurers urge that since the breaches existed prior to and at the time of the fire, the policy was voided pursuant to Section 641, above. On this premise, it is argued that to avoid liability for the loss, Insurers are not required to establish that the moral or physical risk was increased by the derelictions shown.

We disagree with Insurers’ contention because we are here concerned with fire coverage to which LSA-R.S. 22:692 applies, which said section provides:

“No policy of fire insurance issued by any insurer on property in this state shall hereafter be declared void by the insurer for the breach of any representation, warranty or condition contained in the said policy or in the "application therefor. Such breach shall not avail the insurer to avoid liability unless such breach (1) shall exist at the time of the loss, and be either such a breach as would increase either the moral or physical hazard under the policy, or (2) shall be such a breach as would be a violation of a warranty or condition requiring the insurer to take and keep inventories and books showing a record of his business. Notwithstanding the above provisions of this Section, such a breach shall not afford a defense to a suit on the policy if the fact or facts constituting such a breach existing at the time of the issuance of the policy and were, at such time, known to the insurer or to any of his or its officers or agents, or if the fact or facts constituting such a breach existed at the time of the loss and were, at such time, known to the insurer or to any of his or its officers or agents, except in case of fraud on the part of such officer or agent or the insured, or collusion between such officer or agent and the insured.”

We note that Insurers’ argument was expressly rejected by the Supreme Court in Lee v. Travelers Fire Insurance Company, 219 La. 587, 53 So.2d 692 (1951). In Lee, above, it was held that Section 692, above, applied to a policy which provided “fire coverage (among others)”, on an insured truck. On authority of Lee, above, we hold Section 692 applicable to subject policy.

Citing Keeton, Insurance Law § 5.6 p. 320 (1971), Insured points out that the warranty concept in matters of this nature has been attributed to the opinions of Lord Mansfield during the 18th century. From his opinions, the rule evolved that if a policy condition is classified as a warranty, the policy is void if the warranty is breached. The rule applies irrespective of whether the breach contributed to the loss or damage. It would appear the rationale of the rule is that breach terminates all coverage because the insurer declines to continue the policy thereafter. As originally conceived, the rule voids the policy irrespective of whether the breach was material to the loss and even though it did not contribute to the loss or damage.

Keeton, above, p. 321, notes that the harshness of this rule resulted in policies containing numerous warranties, many of trivial character and nature which, in effect, constituted a trap for unsuspecting policy holders whose coverage was voided for insignificant warranty violations, regardless of how honest, sincere and careful the insured might be.

At page 382, Keeton observes that American legislatures have statutorily alleviated the harshness of the rule by enactment of laws falling into two general categories. The first type of such laws provides that to void coverage, the insurer must show an increase in risk resulted from the breach. The second type of such laws provides that coverage is not voided by warranty breach unless the breach contributes to the loss.

In interpreting LSA-R.S. 22:692, and its predecessor statutes, our jurisprudence has established the rule that an insurer is not required to show causal relation between warranty breach and loss to avail himself of warranty provisions in a fire policy. The insurer must, however, establish that the breach increased either the moral or physical hazard.

Apparently the earliest case dealing with the subject is Henry Dittmer & Theo. Pelle v. Germania Ins. Co. of New Orleans, 23 La.Ann. 458 (1871). In this case, an insured’s claim under a fire policy was resisted for breach of warranty against storage of the insured goods in a building containing hay pressed in bales. The merchandise was kept in a structure containing loose unbaled hay. The court held that a policy provision, prohibiting an increase in the risk by act of the insured, is an independent condition in itself and is not controlled or limited by a prior specification of risks or hazards which the insured agrees to guarantee against. The court also held that because the act of the insured increased the physical hazard, it voided the policy even though the particular hazardous condition brought about by the insured was not included in a specified list of hazards included in the policy. The court found that loose, unbaled hay increased the physical risk to the insured goods and thus voided coverage.

Meyer et al. v. Queen Ins. Co., 41 La.Ann. 1000, 6 So. 899 (1890), involved fire damage to a sugar refinery. The policy contained a provision requiring the insured to obtain the insurer’s consent before doing any act which might increase the risk insured against. The insured made extensive alterations to the refinery without the insurer’s consent. The court reiterated the rule that such a breach of policy conditions will void the policy if the moral or physical risk is increased. The court also noted that each case must be decided in the light of its own facts and circumstances. After considering the case in detail, the court concluded the physical risk was reduced by the alterations rather than increased, and the insured was permitted to recover.

In Fleet v. National Fire Insurance Co., 167 La. 74, 118 So. 697 (1928), defendant’s fire policy on plaintiff’s residence and other buildings provided the policy would be void “if the hazard be increased by any means within the control or knowledge of the insured”. The insured used the basement of the residence as a dance hall, and utilized an outbuilding for gambling. The court found the physical hazard to the structures were increased by such use, and voided the policy. The court found also that the insurer showed it would have charged a larger premium for such uses, if it would have insured at all. The court did not discuss the origin of the fire or causal relation between the breach and the loss.

Sigrest v. Federal Ins. Co., 14 La.App. 55, 129 So. 379 (1st Cir. 1930), involved an insured’s breach of warranties by having cement or metal flues in his fireplaces and keeping four or five sticks of old dynamite on his premises. The court found no increase in the physical hazard because the flues used were as safe as flues made of brick or mortar. The court also found the dynamite did not increase the physical hazard because its age rendered it harmless except under most extraordinary circumstances. We note that in this case the court added, by way of dicta, that the breaches involved were not the cause of the fire because the room in which the breaches occurred were not destroyed in the fire.

A restaurant owner, suing to recover the value of equipment, furniture, fixtures and grocery stock destroyed in a restaurant fire, was denied recovery for the grocery stock in Knowles v. Dixie Fire Ins. Co. of Greensboro, N. C., 177 La. 941, 149 So. 528 (1933). The court found that the insured’s failure to keep a stock inventory, as required by the policy, voided this coverage. Recovery was allowed, however, for the furniture and fixtures destroyed in the fire.

In Terwilliger v. Union Fire, Accident & General Ins. Co., 185 So. 43 (La.App. Orleans, 1938), the court voided a fire policy where the insured violated a warranty provision that the property would not be left vacant for more than 30 days or unoccupied for more than 60 days. Despite the insured claims he visited the premises once or twice weekly, spent the night there on occasions, and had a neighbor watch the property, the court found the warranty breached. Upon finding the breach increased the physical hazard, the court voided the policy without mentioning causal relationship between the breach and the loss.

In Brough v. Presidential Fire & Marine Ins. Co., 189 La. 880, 181 So. 432 (1938), an insurer invoked a warranty provision in a fire policy requiring unconditional ownership of the insured property. The court reiterated the rule that a warranty breach does not per se void a policy but must also increase the physical or moral risk to the insured property to achieve such a result. The court also noted that the burden of proof of increase in physical or moral risk is incumbent upon the insurer invoking the warranty. Likewise, the court reiterated the rule that each such case must depend upon its own facts and circumstances. Finding no increase in moral hazard resulting from the insured’s ownership of less than an unconditional interest, the court permitted recovery under the policy.

American Indemnity Co. v. Newsom, 79 So.2d 392 (La.App. 2d Cir. 1955), was concerned with breach of a warranty that the insured building would not be left vacant more than 60 days without notice to the insurer. The structure was insured as one in which intoxicating beverages were sold for consumption both on and off the premises. The court found that the breach did not increase the physical hazard and permitted the insured recovery. The court also placed considerable stress on the fact that the insurer’s agent had notice of the vacancy-

It thus appears that our courts have repeatedly applied the rule that breach of warranty will void a policy of fire insurance, provided the insurer bears the burden of establishing a resultant increase in either the moral or physical hazard. Granted that in the “vacancy” cases above mentioned, there appears some contradiction in the results reached. Nevertheless, in each such case, a specific finding was made as to whether breach of the occupancy or vacancy warranty did or did not increase the physical hazard. No case in our jurisprudence has held that the breach must bear a causal relationship to the damage or loss.

It is well settled that insurers may, by unambiguous and clearly noticeable provisions, limit their liability by imposing such reasonable conditions as they desire upon the obligations they assume. Breaux v. St. Paul Fire & Marine Insurance Co., 326 So.2d 891 (La.App. 3rd Cir. 1976).

When the terms of an insurance contract are clear and unambiguous, they form the law between the parties and are entitled to enforcement according to their terms. LSA-C.C. Article 1901; Mauterer v. Associated Indemnity Company, 332 So.2d 570 (La.App. 4th Cir. 1976).

In this instance, the record establishes beyond question that failure to have an operable fire extinguisher of the type required by the policy, or an equivalent thereof, on the machine while it was operating in the woods, is a patent breach of the insured’s warranty. So, too, is the insured’s failure to substantially comply with the warranty provision of cleaning the machine during daily operation and at the end of each day’s work.

The record is clear that breach of these warranties resulted in a significant increase in the physical hazard to the machine. The record shows clearly that a skidder is highly-vulnerable to fire which may result from the accumulation of tinder like materials in its engine compartment incident to its operation in the woods. To reduce this known and recognized hazard, the insurer reasonably required periodic cleaning during daily use, and also at the end of each day’s work. The latter requirement was obviously intended to reduce the hazard of fire occurring after workmen retired from the scene upon completing their day’s work, leaving the machine unattended.

We find no merit in Insured’s contention that the presence of an operable fire extinguisher would not have reduced the risk of this particular fire because the fire was beneath the floorboards and therefore inaccessible. Assuming this to be true, it is a matter of no consequence. The absence of an operable fire extinguisher increased the risk of damage by fire which is all that is required to void the policy for breach of warranty.

We also find no merit in Insured’s contention that the fire did not start in the engine compartment but under the operator’s seat. In this regard, the evidence does not show where the fire began; it is shown merely that the operator first detected the fire coming from beneath the floorboards of the cab. Moreover, it is immaterial where the fire began. Since Insured’s breach of warranty increased the physical risk, the policy is voided.

The judgment of the trial court is reversed and judgment rendered herein in favor of defendants Northwestern National Insurance Company and Interstate Surplus Underwriters, Inc., and against plaintiff, Robert Rodriguez and Intervenor, Crawler Supply Company, Inc., rejecting Insured’s demands with prejudice, all costs of these proceedings to be paid by Insured and In-tervenor.

Reversed and rendered.

CLAIBORNE, J., concurred with result and legal conclusions of majority and filed opinion.

COLE, J., filed dissenting opinions.

LOTTINGER, J., dissented for reasons assigned by COLE, J.

CLAIBORNE, Judge

(concurring).

I concur with the result and with the legal conclusions of the majority. Breach of a warranty will void a fire insurance policy provided the insurer shows a resulting increase in either the moral or physical hazard. No causal relationship to the damage or loss need be shown.

I do not agree with some of the factual conclusions reached by the majority concerning the origin of the fire. The preponderance of the evidence, which is all that is required to prove a fact, is evidence which as a whole shows that the fact sought to be proved is more probable than not. Braud v. Kinchen, 310 So.2d 657 (La.App. 1st Cir. 1975). As I read the evidence the preponderance establishes that the fire began in the concealed transmission and its controls where the fire was first noticed rather than the more visible engine compartment, exhaust manifold and protection belly pan all of which are situated to the front of the operator, and where no flames were noticed. It was an oil or fuel fire; not a trash fire. These facts are relevant to the position of the dissent, although immaterial to the majority holding. If I agreed with the view of the law held by the dissent, the facts would compel me to join the dissent.

The majority points out that insurers, by unambiguous and clearly noticeable provisions, may limit their liability by imposing reasonable conditions on the obligations they assume. Whether the conditions imposed by the insurer are “reasonable” deserves consideration in the instant case. In my opinion the requirement that the machine be equipped with a fire extinguisher other than standard factory equipment without a showing that the standard equipment was smaller, less effective or in any way inferior to the specified model, and particularly when the matter is not discussed with the insured, is unreasonable.

A warranty which would require an industrial machine to be stopped and cleaned so often that the machine becomes economically useless is an unreasonable condition. The warranty provision in this case does not, however, necessarily require such frequent stoppage. Since the number of times per day is not specified, the clause is subject to judicial interpretation, and a reasonable number of times would satisfy the warranty. This condition was not fulfilled. The warranty provision requiring removal of trash and accumulations of fuel and leaves from the specified areas before discontinuing work for the day is reasonable. It was shown that this practice would reduce the physical hazard of fire, although no causal relationship to the fire loss in the present case was shown.

The violation of these warranty conditions void the policy.

I concur.

COLE, Judge,

dissenting.

The opinion of the majority holds, in part, that “our jurisprudence has established the rule that an insurer is not required to show causal relation between warranty breach and loss to avail himself of warranty provisions in a fire policy.” An examination of the authorities cited in support of this conclusion does not convince me that in those instances where a physical hazard is at issue it is a well-founded statement of law. Several of the cases relied upon were decided prior to the 1928 enactment of R.S. 22:692 which is applicable to the subject insurance policy. Other cited cases dealt with a moral hazard and not a physical hazard as is found herein. Still other cited cases deal with “vacant” premises and, therefore, present a vastly differing factual context. Based upon the authorities cited, I am not prepared to agree that there is no necessity for the breach to bear a causal relationship to the damage or loss.

It is understandable that where a moral hazard is at issue, i. e., the risk of intentional destruction by fire for monetary gain, it is virtually impossible to establish causation and the insurer should not bear the burden of proving same. See Knowles v. Dixie Fire Insurance Company, 177 La. 941, 149 So. 528 (1933); Brough v. Presidential Fire and Marine Insurance Company, 189 La. 880, 181 So. 432 (1938); and Lee v. Travelers Fire Insurance Company, 219 La. 587, 53 So.2d 692 (1951). Causation is implied in such an instance. However, it is an entirely different situation in regard to a physical hazard. The very nature of physical hazards denotes causation factors and it is not an unreasonable burden for the insurer to bear to show that the breach of a warranty probably brought about the loss.

If we relieve insurers from the burden of proof of causation with respect to physical fire hazards, recovery for loss could be denied under the facts of this case even if a total stranger to the appellee had poured gasoline over the log skidder at midnight and then applied a torch causing its destruction. I cannot agree that such a result is envisioned by the language of LSA-R.S. 22:692. When Section 692 speaks of “such a breach as would increase the * * * physical hazard”, one must look to the nature of the hazard to determine if the risk thereof was increased by the breach of the stated warranty. The hazard with which we are concerned is a fire within the enclosed area of the log skidder and which could not have been prevented or reasonably diminished by the requisite fire extinguisher or frequent cleaning of the exposed parts of the equipment. In effect, the breach of the two warranties by the appel-lee did not increase the hazard of such a fire and is not related to the loss.

The record does bear out that the physical hazard at issue in this case is that of a fire originating in the inaccessible transmission area of the log skidder. This risk or hazard resulted in the loss. The record further establishes that a breach of the policy warranties did not increase this physical hazard and did not contribute to or cause the loss. The majority is correct in its holding that the burden of proof is on the insurer to show that an increase in risk resulted from the breaches. ■ The trial court, in holding for the insured, had to find that the insurer failed to bear its burden. I find no error whatever and certainly no manifest error in this factual finding by the trial court. The majority result is to reverse the trial court on a factual finding contra to the rule enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Finally, it cannot be overlooked that the insured did not personally arrange for or purchase the policy, has a fourth-grade education, did not read the policy, and was without knowledge of warranty violations. Even the fire extinguisher had been supplied by the manufacturer as standard equipment. These facts become significant when we consider the language of Lee, supra, to the effect:

“ * * * [N]o inquiry was made of plaintiff by anyone respecting encumbrances affecting the truck. It is fair to assume that he was without knowledge that such information was a prerequisite for the insurance’s effectiveness.” (53 So.2d at 697)

I respectfully dissent.


author: SARTAIN, Judge.

text:
    Chester C. BAUDOIN, Sheriff of St. Mary Parish, Plaintiff-Appellee, v. Michael FONSECA, Defendant-Appellant.
    No. 11344.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      Walter J. Senette, Jr., Asst. Dist. Atty., Franklin, for plaintiff.
    Caliste Beard, Jr., Lafayette, for defendant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

Appellant, Michael Fonseca, appeals from a judgment ordering the forfeiture of his Ford pickup truck to Chester C. Baudoiri, Sheriff of St. Mary Parish, under the provisions of R.S. 40:989 A(4). We affirm.

On January 10, 1976, appellant, while driving the subject vehicle, was apprehended and certain quantities of marijuana in the form of hashish, and cocaine, were found. He later pled guilty to and was sentenced for the illegal possession of cocaine. This suit followed.

Appellant argues that R.S. 40:989 A(4) is violative of Article 1, sec. 4, of the Louisiana Constitution of 1974 and the Eighth and Fourteenth Amendments to the Federal Constitution. We shall discuss these contentions in the order mentioned.

“R.S. 40:989, in pertinent part, provides: § 989. Forfeitures
A. The following shall be subject to forfeiture and no property right shall exist in them:
******
(4) All conveyances including aircraft, vehicles, or vessels, which are used or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, production, manufacture, compounding, dispensation or concealment of property described in Paragraphs (1) and (2), except that: * * * >>

Article 1, Section 4, of the Louisiana Constitution (1974) states:

“§ 4. Right to Property
“Section 4. Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
“Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his .benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss. No business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise. However, a municipality may expropriate a utility within its jurisdiction. Personal effects, other than contraband, shall never be taken.
“This Section shall not apply to appropriation of property necessary for levee and levee drainage purposes.” (Emphasis ours)

We are of the opinion that the subject vehicle is contraband within the intent of Article 1, Section 4, above, and that the forfeiture statute here assailed is a reasonable exercise of the police power of this state.

It is appellant’s basic contention that his vehicle is a personal effect which is not contraband and is therefore constitutionally exempt from forfeiture.

With respect to the classification of “contraband”, we note that there are no cases in Louisiana dealing with this particular issue. However, generally speaking, courts of other jurisdiction have classified forfeiture statutes of similar import into one of two categories: those which specifically describe the contraband (such as the dangerous substance itself) and those statutes which are directed at property (conveyances) which is used in connection with an unlawful act. 50 A.L.R.3d 175. These latter items have been termed as “derivative contraband”. The obvious purpose of the statutes relating to derivative contraband is to foster the object of the underlying criminal statute both by preventing further illicit use of the conveyance in the transportation and distribution of dangerous substances and by imposing an economic penalty, thereby rendering the illegal activity less profitable. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 2094, 40 L.Ed.2d 452 (1974), rehearing denied, 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d 1148.

With respect to Section 4 of Article 1, Louisianá Constitution of 1974, one author has stated that the record of the debates of the constitutional convention “provides no special definition of contraband. The term is used in the ordinary sense of property the possession of which is forbidden by law." Hargrave: The Declaration of Rights, Etc., 35 La.L.Rev. 1 (1974). We further add that the term “contraband” also includes “derivative contraband” that is the conveyance used in the transportation and distribution of illegal substances. This we believe to be the intent of Article 1, Section 4, considering the qualification contained in the first paragraph thereof, i.e., “. . . subject to . the reasonable exercise of the police power.”

The question then remains whether the subject statute is a reasonable exercise of the police power of the state.

In State v. Martin, 193 La. 1036, 192 So. 694, 696 (1939), our Supreme Court first recognized and constitutionally sanctioned the authority of the state to enact legislation relating to dangerous substances. The statutes there under attack were the forerunners of the present laws on the same subject matter. The purpose of such laws then is the same as it is now, that is to further the regulation and control of drugs and narcotics. To this end the statute here contested is particularly designed to impede, restrain and otherwise discourage the distribution of such dangerous substances. Calero-Toledo v. Pearson Yacht Leasing Co., above. For an exhaustive historical comment on the current statutes (R.S. 40:961-990), the jurisprudence, and drug abuse related problems, see Andrus and Moore, The Uniform Controlled Dangerous Substances Act: An Expositive Review, 32 La.L.Rev. 56. The problem has not abated. To the contrary, it has worsened.

The abridgement of a valued property right (to the use and enjoyment of a vehicle) must be weighed against the object and purpose of the evil sought to be prevented. This decision was made by the legislature. In determining whether that body properly exercised its authority under its grant of “police power”, the courts must consider whether the statute complained of bears a legitimate state purpose and does not unreasonably infringe on other constitutionally protected interests. Our answer to both is in the affirmative.

Appellant further argues that R.S. 40:989 A(4) violates the due process clause of both the Federal and State Constitutions. We find this contention to be without merit. We are satisfied that the goal or purpose of the statute bears a real and substantial relationship to the general welfare of the citizens of this state. State v. Martin, above, and Calero-Toledo v. Pearson Yacht Leasing Co., above. We are also satisfied that it is well within the province of the legislature to impose the sanction of forfeiture as a deterrent to illicit traffic in drugs, narcotics and other substances classified as dangerous.

Appellant in essence argues that the individual property right which he is now denied is greater than the public’s right to be protected from illegal drugs and narcotics. On this issue the great weight of authority is to the contrary. Not only drug forfeiture statutes but many other statutes dealing with health related problems have been traditionally upheld as constitutional. One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) (illegal liquor); United States v. McCormick, 502 F.2d 281 (9th Cir. 1974); United States v. One 1967 Ford Mustang, 2 Door Hardtop, 457 F.2d 931 (9th Cir. 1972) (counterfeit money); Cooper v. One White Model 1950 Motor Tractor, 225 La. 190, 72 So.2d 474 (1954) (contraband cigarettes); State v. Billiot, 229 So.2d 72 (La.1969) (shrimping equipment); State v. Cook, 203 La. 95, 13 So.2d 478 (1943) (illegal delivery of gasoline); United States v. One 1969 Plymouth Fury Automobile, Serial No. PM 43G9D199088, 476 F.2d 960 (5th Cir. 1973) (counterfeit money); United States v. One 1970 Buick Riviera Bearing Serial No. 494870H910774, 463 F.2d 1168 (5th Cir. 1971), cert. den. 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 244 (marijuana); United States v. One 1962 Ford Thunderbird, 232 F.Supp. 1019 (D.C.1964); United States v. One 1971 Chevrolet Corvette, Auto Vehicle Identification No. 194371S119217, 393 F.Supp. 344 (D.C.1975) (marijuana); 49 U.S.C.A. § 782.

Lastly, appellant argues that the forfeiture of his vehicle is an additional penal sanction which constitutes cruel and unusual punishment in violation of the Eighth Amendment to the federal constitution. He has cited no authority for this contention and our research has failed to disclose any. We note that in State v. Normand, 285 So.2d 210, 212 (La.1973), the Supreme Court described the type of punishment sought to be constitutionally prohibited by the Eighth Amendment as “. those that are barbarous, extraordinary, or grossly disproportionate to the offense. In short, the constitutional prohibition is directed to punishments that shock the conscience of civilized men.” We find that the subject forfeiture does not fall under the above criteria.

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


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    C. M. ALEXANDER, Plaintiff-Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al., Defendants-Appellees.
    No. 11348.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      Irving H. Koch, John P. Nelson, Jr., New Orleans, for C. M. Alexander, plaintiff-appellant.
    Sharon P. Frazier, Baton Rouge, for State of La. through the Dept, of Highways, defendant-appellee.
    William A. Norfolk, Baton Rouge, for 0. D. Creel, defendant-appellee, and Con-Plex, Division of USI, Inc., third-party defendant-appellee.
    Don L. Broussard, Lafayette, for Travelers Ins. Co., intervenor-appellee.
    John B. Noland, Boris F. Navratil, Breaz-eale, Sachse & Wilson, Baton Rouge, for Barnard & Burk and Howard, Needles, Tammen and Bergendoff, third-party defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

Plaintiff appeals from a judgment rejecting his demands for personal injuries. We affirm.

On May 26, 1971, plaintiff was operating a bulldozer equipped with a front end “rake tooth”. He was in the process of clearing the right of way for Interstate Highway 12 (1-12) in Tangipahoa Parish when the dozer rake struck a submerged butane tank, causing the tank to rupture and ignite. As a result, plaintiff sustained burns to his face and forearms.

The record reflects that in 1963 the State of Louisiana through the Department of Highways (Department) entered into a contract for professional engineering services with Barnard & Burk (a partnership) in joint venture with Howard, Needles, Tam-men and Bergendoff (a partnership), (hereinafter referred to as Engineers) whereby the latter were to prepare preliminary and final construction plans and specifications for the highway project. Pursuant to this contract the Engineers prepared from aerial photographs and ground surveys profile sheets of the area. These sheets were to depict all structures within the right of way. The subject butane tank was situated near a residence located on the profile sheets at Station 351 plus 65. Whereas the residence and a well were shown on various profile sheets, the presence of this submerged butane tank was not indicated.

The contract between the Department and Engineers required, inter alia, that:

“6. * * * The ENGINEERS shall show all existing utilities on the plans and transmit prints to the various utility companies for verification and for the location of any additional utilities and other required information. Copies of all correspondence with utility companies shall be furnished to the DEPARTMENT by the ENGINEERS.”
* * * * * *
“7. (b) All topography located both within and in the immediate vicinity of required right of way or affected by said required right of way, such as houses, outbuildings, fences, railroads, power poles, telephone poles, wells, etc., giving measurements and descriptions of said improvement (i. e. two-story frame residence, asbestos siding, corrugated metal roof, brick piers, 2V2" well 500' deep with tank and electric driven pump).”

Following the completion of the plans and specifications prepared by the Engineers, the Department contracted with Con-Plex, a division of United States Industries, Inc. (Con-Plex) to clear the right of way. At the time of the accident the residence had been previously removed from the site.

Con-Plex rented a bulldozer with operator from a Mr. O. D. Creel.

Plaintiff named as defendants the Department, Engineers, and Creel.

Negligence against the Department is based on that agency’s alleged failure to adopt proper procedure to determine the location and warn others of the presence of the submerged butane tanks.

Liability against the Engineers is sought to be imposed on their failure to locate the tank and indicate its location on the appropriate profile sheets.

Liability against Creel is sought under the theory of executive liability based on allegations that Creel was in fact a supervising employee of Con-Plex.

The trial judge rejected plaintiff’s demands as to each of the above named defendants and held that plaintiff’s exclusive remedy was under workmen’s compensation. We are not favored with oral or written reasons for judgment. However, inherent in this ruling is a finding by the trial judge that (1) the Engineers were not negligent, and (2) Creel was neither negligent nor an employee of Con-Plex.

Apparently, plaintiff has abandoned any claim that the Department’s or Con-Plex’s liability in the premises is other than a principal contractor or an employer, respectively, which liability is restricted to workmen’s compensation benefits. La.R.S. 23:1061.

The Department regularly undertakes as part of its trade, business or occupation, the construction of highways. This activity is specifically authorized by La.R.S. 48:21. The Department’s decision to carry out this function by contracting with Con-Plex for such work brings the Department under the exclusive remedy provision of La.R.S. 23:1061. Richard v. National Surety Corporation, 99 So.2d 831, (La.App. 1st Cir. 1957), writs refused, March 17, 1958; Gray v. Louisiana Power and Light Co., 247 So.2d 137, (La.App. 4th Cir. 1971), writs refused, 259 La. 59, 249 So.2d 202 (1971).

It is conceded that plaintiff was injured while in the course and scope of his employment with Con-Plex and that plaintiff has received appropriate workmen’s compensation benefits from the employer’s insurer. Under these circumstances, plaintiff’s remedy against Con-Plex is restricted to such benefits. La.R.S. 23:1061.

The issue as to the Engineer’s liability relates directly to the duty imposed on them via their contract with the Department. Plaintiff argues, based on the language in the contract shown above, that a butane tank is a utility within the intent of the contract. The evidence does not support this contention.

The record reflects that the language in the contract (section 6. above) does not encompass individual butane tanks. It specifically refers to “various utility companies” and is designed to facilitate highway construction without disturbing previously existing utility servitudes or the disruption of utility service to unaffected residences or businesses.

With respect to Section 7.(b), above, the evidence clearly preponderates to the effect that the Engineers were not required to detect a submerged tank. Two engineers with the Department so testified. A third engineer with the Department expressed the view that he considered a tank “a part of the topography” and should have been shown. He is the only witness to so testify. The witnesses for the Engineers testified that they are not required to search out or probe for underground obstacles.

The record further reflects that numerous individuals had been in the vicinity of the old homesite and failed to observe the presence of the tank. It was not an object that was discernible by ordinary visual observation. Accordingly, we fail to find any breach of duty on the part of the Engineers.

Liability of O. D. Creel presents two problems, his employment status as it pertains to executive responsibilities and, if such is established, a determination of whether his conduct under the circumstances exposes him to liability.

Creel testified that he was not an employee of Con-Plex, that he only rented his equipment to this contractor, and his only purpose in being on the jobsite was to service his equipment. The record seems to indicate that Creel’s responsibilities were more than he claims. While Con-Plex had a general superintendent on the project (Treadway), the Department’s engineers regularly consulted with him about the work being undertaken and not only plaintiff, but also another dozer operator (Creel’s brother), regularly took instructions from him as to the work that these operators were to perform. If Creel’s liability depended solely on his employment status with Con-Plex, we would have to find liability. However, a resolution of this issue does not hinge on this factor because, assuming arguendo, that Creel exercised supervisory authority over plaintiff, we are satisfied that his (Creel) conduct was not substandard.

Plaintiff argues that Creel is responsible as an executive officer of Con-Plex for failing to provide him with a safe place to work. Stated another way, that Con-Plex’s failure to indicate the presence of the butane tank rendered the area in which he was working unsafe.

There is no question but that an employer owes his employees a safe place in which to work. In Samson v. Southern Bell Telephone & Telegraph Co., 205 So.2d 496, 502 (La.App. 1st Cir. 1967), we stated:

“Our courts have long since recognized and established the rule obligating an employer to provide his servants with a safe place in which to work. See Faulkner v. Milner-Fuller, Inc., supra [La.App., 154 So. 507].
“The basis for the rule is the employer’s control of the condition of his premises. Having such control, the employer is charged with the legal duty of making the premises safe in order not to expose the employee to unreasonable, unwarranted, unseen or unknown perils inimical to the employee’s physical well being. What constitutes a dangerous condition must obviously be determined in the light of the peculiar facts and circumstances attending each individual case.”

The place of employment need not be the “safest possible place” but one which is “reasonably safe”, considering the “nature of the work itself”. Chabina v. The Travelers Insurance Co., et al., 251 So.2d 414, 416 (La.App. 1st Cir. 1971), writs refused 259 La. 902, 253 So.2d 223; Chaney v. Brupbacher, 242 So.2d 627, (La.App. 4th Cir. 1970).

With the above in mind, we look to the actions of Creel. The old residence had been vacant for many years and had been either removed or demolished prior to the day of the accident. Other bulldozers had previously worked the site. Shortly before the incident Creel had made a careful examination of the area looking for any object that might damage a bulldozer blade. He found none. One might expect that the dome of the tank would be above the ground but the testimony offered in this cause does not support such a conclusion. Plaintiff himself had been in the area and he observed nothing. Mr. Henry A. Cuti, an inspector for the Department, stated that he had been around the site where the tank was located on “numerous occasions” before the accident and had not observed the tank. He arrived shortly after the accident and observed no dome or any other portion of the tank that would be protruding above the ground. Thus, we must find that the plaintiff has failed to establish that the area in which the accident occurred was unsafe or that Creel had failed to see that which he should have seen or was in any other way negligent.

Accordingly, for the above and foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.


text:
    David RABIN, Plaintiff-Appellee, v. Rodney C. WHITNEY, Defendant-Appellant.
    No. 11351.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Maury A. Herman, New Orleans, for plaintiff-appellee.
    Edward T. Diaz, Golden Meadow, for defendant-appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is a suit for specific performance of a purchase agreement for real estate. It was consolidated for trial with a companion suit, Day v. Whitney, rendered this date, 347 So.2d 1254, the realtor’s suit for commission under the same agreement. We shall relate the pertinent facts in this opinion but shall render a separate judgment in the Day suit.

Under date of February 1, 1975, David Rabin, the owner, and Rodney C. Whitney, the purchaser, executed an agreement to sell and purchase, respectively, certain property situated in Jefferson Parish, Louisiana. The consideration was stated to be $105,350.00, payable on terms of $26,337.50 cash and the balance in five equal annual installments of $15,802.50. Accompanying the agreement was a deposit by the purchaser of $2,000.00 cash and his promissory note for $8,535.00, payable on or before ninety days from date. These latter sums were due Day in payment of his commission.

The agreement contained the following clause:

“Act of sale to be passed before seller’s notary on or prior to 90 days from the above date at the expense of purchaser.”

On April 18, 1975, the seller’s notary advised the purchaser by certified mail that the act of sale had been scheduled to be finalized at the notary’s office at eleven o’clock A.M. on April 28, 1975. The letter further suggested to Whitney that he select another date if April 28,1975 proved inconvenient for him.

Whitney did not respond to the letter and failed to appear at the scheduled time on April 28, 1975. When it was apparent that he was not going to accept title, a formal tender was executed and sent to him by certified mail. It was returned undelivered. These suits followed. The trial judge rendered judgment against Whitney in both suits and he has appealed. We affirm.

Defendant’s defense is that he was forced to take title to the property five days before the expiration of the ninety days provided for in the agreement and, further, plaintiffs’ efforts in this regard constituted a breach of the agreement, thus relieving him (Whitney) of any responsibility. This contention is devoid of merit.

Legal agreements have the effect of law between the parties and it is the duty of the courts to enforce contracts in accordance with the true intent of the parties. Lanneau v. Capital Transportation Corporation, 292 So.2d 810 (La.App. 1st Cir. 1974), C.C. Art. 1945. When the terms of the contract are explicit, the courts must refrain from construing them in such a manner as to lead to absurd or unreasonable consequences. Crow v. Monsell, 200 So.2d 700 (La.App. 2d Cir. 1967), writ refused 251 La. 226, 203 So.2d 558 (1967).

In the words of the trial court:

“The phrase ‘on or prior to ninety days’ is not to be narrowly construed to mean midnight of the ninetieth day or otherwise all bets are off The agreement clearly stated that the Act of Sale was to be passed ‘on or prior’ to the specified period, not subsequent thereto, and if vendor had waited until the full ninety days had elapsed before offering to transfer the title, he may well have been charged with breach of contract by not accommodating the purchaser on the ninetieth day or ‘prior’ thereto.”

We agree. The language simply means that the act of sale is to be passed at a time convenient to both the seller and the purchaser and mutually agreeable to both the seller and the purchaser, with each being required to adhere to the terms of the contract within ninety days.

If April 28 was inconvenient or not satisfactory to appellant to take title to the property, he was invited to select another date. He did nothing. Actually, appellant frankly admitted at the trial on the merits, after a general denial and two exceptions, that he had suffered some financial setbacks and it was for this reason that he failed to respond. When called on cross-examination at the trial on the merits, he stated that he was then willing to take title under the terms of the agreement. The controversy then turned to the assessment of interest and attorney’s fees, as provided for in the agreement. Beyond any doubt, appellant’s actions were solely for the purpose of delaying execution of his agreement to purchase.

The judgment of the trial court is correct on both the law and the facts and is affirmed at appellant’s cost.

AFFIRMED.


text:
    Warren J. DAY, Plaintiff-Appellee, v. Rodney C. WHITNEY, Defendant-Appellant.
    No. 11355.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Paul R. Maddox, Metairie, for plaintiff and appellee.
    Edward T. Diaz, Golden Meadow, for defendant and appellant.

      Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

For reasons this day assigned in Rabin v. Whitney, La.App., 347 So.2d 1253, the judgment of the district court is affirmed at appellant’s cost.

AFFIRMED.