author: HALL, Judge.

text:
    Vivian S. CARTER, Plaintiff-Appellant, v. ROCKWOOD INSURANCE COMPANY and Sansone’s Restaurant, Inc., Defendants-Appellants.
    No. 13104.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.

      Booth, Lockard, Jack, Pleasant & LeSage by Troy E. Bain, Shreveport, for plaintiff-appellant Vivian S. Carter.
    Hal V. Lyons, Shreveport, for defendants-appellants Rockwood Ins. Co. and San-sone’s Restaurant, Inc.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

This suit was filed October 2, 1974, by plaintiff, Vivian S. Carter, against San-sone’s Restuarant, Inc., and its insurer, Rockwood Insurance Company, seeking workmen’s compensation benefits for disability arising out of a knee injury sustained by plaintiff when she slipped and fell while working as a waitress at Sansone’s on' July 6, 1973. On February 20, 1976, plaintiff filed a supplemental petition alleging that due to the weakened condition of her knee, she fell at home on February 25, 1975, and fractured the femur of her right leg above the knee. Plaintiff prayed for compensation benefits based on total and permanent disability from the date of the first accident, penalties and attorney’s fees, medical expenses of $13,283.33 and costs. After trial the district court found plaintiff to be totally and permanently disabled and awarded compensation of $41.60 per week for 500 weeks, subject to a credit of $1,414.60 paid by the insurer. The district court also awarded medical expenses of $12,500, subject to a credit of $2,207.50 paid by the insurer. Plaintiff’s claims for penalties, attorney’s fees and medical expenses over $12,500 were rejected, with plaintiff’s right to sue for the additional medical expenses being reserved. Plaintiff and defendants each appealed from the district court’s judgment, which we affirm for reasons set forth in this opinion.

The fact that plaintiff is and has been totally and permanently disabled since the second accident is undisputed. The primary issue in this case is whether plaintiff’s total and permanent disability after the subsequent off-the-job accident is causally related to the original on-the-job accident and injury to such an extent as to entitle plaintiff to workmen’s compensation benefits from her employer for whom she was working at the time of the first accident. Secondary issues are whether plaintiff is entitled to penalties and attorney’s fees, whether plaintiff is entitled to recover medical expenses in excess of $12,500, and whether defendants are entitled to credit for medical expenses paid in view of the fact that they did not plead payment as an affirmative defense.

In July, 1973, plaintiff was working as a waitress at Sansone’s where she had been employed for several months. She worked six to eight hours a day, was continuously on her feet and spent as much as 85% to 90% of her time walking and carrying trays.

On July 6, 1973, plaintiff slipped in a puddle of water near the serving bar in the restaurant and fell, injuring her right knee. She was treated by Dr. Austin W. Gleason, Jr., a well-qualified orthopedic surgeon who was the only medical witness in the case. Dr. Gleason found that she had a fracture of the right kneecap and possible internal derangement such as torn ligaments and torn cartilages.

Dr. Gleason treated plaintiff conservatively for several months, during which time she developed symptoms suggestive of traumatic synovitis which is an inflammation of the lining of the joint and chondro-malacia which is softening of the cartilage which becomes frayed and degenerative. Dr. Gleason did not recommend surgery at that time and encouraged plaintiff to return to work if she could. Plaintiff tried to work for two days in November, but could not because of pain, swelling and her knee giving way. In December, plaintiff was still having significant symptoms and the doctor recommended surgery. An arthroto-my was performed which revealed that plaintiff had severe chondromalacia of the patella (degeneration of the cartilage under the kneecap) and a great deal of scarring about the kneecap. The diseased cartilage and scar tissue were shaved away from the kneecap. Some of the degenerative cartilage and scar tissue was related to the accident at Sansone’s and some was related to a previous injury and surgery to the right knee which plaintiff sustained several years earlier and from which, except for a slight limp, she was asymptomatic at the time of the Sansone’s accident.

After the operation Dr. Gleason treated plaintiff until March 14, 1974. On that date the doctor told plaintiff she could return to work when she “felt that her knee was strong enough” and the doctor thought it would be “good for her psychologically to return to her occupation.” The doctor also noted at that time that she had limitation of motion in her knee joint, persistent pain and giving way, and there was the possibility that she may lose her kneecap. The doctor discharged her with a 15% loss of physical function to her right leg.

Plaintiff returned to see Dr. Gleason on May 3, 1974 and July 2, 1974, still having significant trouble. She was unable to return to work because her knee continued to give her trouble and would give way, was swelling, was painful, and she had a tendency to fall. Plaintiff testified she was scared to try to work because she knew she could not work for six to eight hours a day and knew she would have trouble carrying a tray. She did not return to see Dr. Gleason after July, 1974, because he had nothing further to offer her in the way of treatment except surgery for removal of the kneecap, which he did not recommend at that time.

On February 25,1975, plaintiff fell in the carport of her home and fractured her femur above her right knee. Her foot slipped, probably on a spot of oil, and when she tried to catch herself by locking her right knee it gave way and she fell. She suffered a severely comminuted fracture which the doctor described as “a bunch of pieces” and “like an eggshell.” The doctor testified there was apparently quite a bit of force involved and that he had never seen a fracture like this except in high velocity accidents, such as a motorcycle accident.

Dr. Gleason testified that the severity of the fracture was due to osteoporosis of the bone which is a weakening of the bone due to lack of normal use, attributable to her knee injury. Dr. Gleason was further of the opinion that the weakened condition of plaintiff’s knee and the fact she could not lock her knee contributed to her fall and to the severity of the fall.

Plaintiff was hospitalized from February 25, 1975 to April 26, 1975. She was hospitalized again in September of 1975, for a bone graft and insertion of a plate at the fracture site.

Dr. Gleason last saw plaintiff on April 30, 1976. She was still on crutches when outside her home. Her range of motion for her right knee was limited. She will have to have future surgery for removal of the metal plate. She has a 40% disability of her right leg and Dr. Gleason does not foresee that she will ever be able to go back to a job where she has to stand on her feet for several hours a day. She may have to have her knee joint completely replaced. Plaintiff’s disability attributable specifically to the knee was significantly worsened by reason of lack of use during the period of treatment for the fractured femur.

Defendants paid plaintiff weekly compensation benefits to March 14, 1974, the date on which Dr. Gleason reported plaintiff was able to go back to work. Defendants also paid medical expenses incurred up to that time.

The trial court found that plaintiff was still disabled from the first injury at the time of the February, 1975 accident and further found that the second accident was caused by or contributed to by the first accident and, therefore, was compensable. Defendants assign as error the award to plaintiff of any benefits following her release by the physician on March 14, 1974, contending she was fully capable of returning to work after that date and that the injury resulting from the second accident at home is not compensable as it did not arise out of the course and scope of her employment.

There is ample evidence to support the trial court’s finding that plaintiff was still disabled at the time of her fall in February, 1975. Although Dr. Gleason discharged her as able to go back to work in March, 1974, his opinion in that respect was qualified by his statement that she should return to work when she felt her knee was strong enough and by his belief that it would be psychologically good for her to return to work. Plaintiff returned to the doctor for further treatment on two occasions after her discharge and at the time of her discharge the doctor acknowledged that she had a 15% disability of the leg, that she had persistent pain and that the knee was subject to giving way. Plaintiff testified she continued to have pain, swelling and could not do the work of a waitress. The preponderance of the evidence is that plaintiff was disabled within the meaning of the Workmen’s Compensation Law at the time of the February accident.

The evidence is likewise ample to sustain the trial court’s finding that the on-the-job injury was a contributing cause of the subsequent at-home accident which resulted in additional injury as well as aggravation of the previous injury and prolongation of the disability related to the previous on-the-job injury. Plaintiff testified that when her foot slipped, she tried to lock her knee but could not, and it gave way, causing her to fall or at least causing her to fall harder than she otherwise would have done. Dr. Gleason made it clear that the first injury to plaintiff’s knee resulted in an inability to lock the knee and a tendency for the knee to give way and the doctor was of the opinion these factors were a contributing cause of the fall, the severity of the fall, and the severity of the injury resulting from the fall.

The Workmen’s Compensation Law provides for benefits during the period of disability resulting from an on-the-job accidental injury. Post-accident complications, whether of purely a medical nature, or whether relating to subsequent off-the-job accidental injury, may be compensable if they are causally related to an on-the-job accident. See Malone, Louisiana Workmen’s Compensation Law and Practice, § 233. Also see Larson, Workmen’s Compensation Law, § 13.11 and § 13.12. Compare Owens v. Liberty Mutual Insurance Company, 307 So.2d 313 (La.1975).

In this case the second accident was a natural and expectable consequence of the work-related accident and the disability resulting from the combination of the two accidents is compensable. Causation of the second accident and resulting disability by the previous on-the-job accident is clearly established. The work-related injury prevented plaintiff from catching herself and thereby was a contributing cause of the fall itself. The work-related injury caused plaintiff to fall with greater force than she otherwise would have, contributing to the severity of the fall. The work-related injury had caused osteoporosis of the leg bone and thereby contributed to the severity of the second injury. The work-related injury was aggravated by the second accident.

The nature of the original knee injury was such that the chance of subsequent reinjury was a foreseeable risk and an ex-pectable consequence. The second accident resulted during normal activity and was a reasonably foreseeable and natural consequence of the work-related injury.

We perceive of no reason for distinguishing this case which involves a subsequent off-the-job accident from those cases allowing recovery of compensation benefits for post-accident medical complications and those cases allowing recovery against an initial employer where there was a subsequent on-the-job accident while working for another employer. See Deville v. Townsend Brothers Construction Company, 284 So.2d 110 (La.App. 3d Cir. 1973); Lachney v. Employers Commercial Union Insurance Companies, 337 So.2d 624 (La.App. 4th Cir. 1976); Estilette v. United States Fidelity & Guaranty Co., 64 So.2d 878 (La.App. 1st Cir. 1953); Kridler v. Bituminous Casualty Corporation, 409 F.2d 88 (5th Cir. 1969).

Plaintiff is and has been continuously disabled as a result of the on-the-job accident of July, 1973. The judgment of the district court awarding her total and permanent disability benefits from that date for a period of 500 weeks is correct.

The judgment of the district court rejecting plaintiff’s demands for penalties and attorney’s fees is likewise correct. Although the district court and this court have found that plaintiff continued to be disabled after her discharge by the doctor in March, 1974, defendants acted with reasonable justification in terminating compensation benefits at that time based on the doctor’s report that plaintiff was able to go back to work. The factual and legal issues relating to the effect of the second accident were serious and unsettled and reasonably justified defendants in not resuming payments until their liability was judicially established. Defendants’ failure to pay benefits was not arbitrary, unreasonable or capricious and penalties and attorney’s fees are not due.

The judgment of the district court allowing defendants credit for medical expenses previously paid by defendants is correct. Technically, payment is an affirmative defense which must be pleaded. LSA-C.C.P. Art. 1005. When plaintiff objected to defendants’ evidence as to payment of medical bills, the trial court could have allowed defendants to amend their pleadings, then allowed plaintiff a continuance if prejudice resulted, and then allowed the evidence. LSA-C.C.P. Art. 1154. There is no suggestion that plaintiff was surprised or prejudiced in any way by defendants’ evidence of payment. If there was error in admitting the evidence the error was harmless. See Motor Machine & Supply Co. v. Delilah Towing Co., Inc., 321 So.2d 896 (La.App. 1st Cir. 1975). Plaintiff is not entitled to recover for medical expenses already paid by defendants.

Plaintiff prayed for medical expenses incurred in the amount of $13,283.33 and future medical expenses to be incurred. At the times pertinent to this litigation LSA-R.S. 23:1203, which was subsequently amended, provided:

“The employer shall in every case coming under this Chapter, furnish all necessary medical, surgical, hospital services and medicines or any non-medical treatment recognized by the laws of this state as legal, not to exceed the total sum of twelve thousand five hundred dollars ($12,500.00), except in cases of undue and unusual hardship as hereinafter provided, unless the employee refuses to allow them to be furnished by the employer.
* * * * * *
“Upon a showing by the injured employee in a court of competent jurisdiction by a preponderance of the evidence that as a result of the injury he necessarily requires medical, surgical or hospital services or medicine to a sum in excess of twelve thousand five hundred dollars ($12,500.00) and that unless same are furnished by the employer he will be subjected to undue and unusual hardship, the court in its discretion may order the employer to furnish same, not to exceed the additional sum of twelve thousand five hundred dollars ($12,500.00).”

No evidence was offered by either plaintiff or defendants as to whether plaintiff would or would not be subject to undue and unusual hardship by reason of medical expenses incurred in excess of $12,500. The trial court limited plaintiff’s recovery in this case to $12,500, subject to credit for medical expenses previously paid, without prejudice to plaintiff’s right to sue for any medical expenses already incurred or to be incurred in the future, in excess of $12,500.

In Campbell v. Fidelity & Casualty Company of New York, 339 So.2d 339 (La.1976), decided after the trial court’s judgment in the instant case, the Supreme Court considered the issue of excess medical expenses under LSA-R.S. 23:1203. The court held that the relevant inquiry under the statute is whether the payment of medical expenses exceeding $12,500 as they accrue by the injured employee, rather than by his employer, would amount to an undue and unusual hardship. If so, then excess medical benefits may be awarded. The court concluded that the assessment of a hardship is more than a matter of mathematics and involves a consideration of the employee’s total circumstances at the time the need for the medical expenses arises. After reviewing the evidence of the injured workman’s source of income and inability to work, the court concluded he was subjected to an undue and unusual hardship and was entitled to reimbursement for excess medical expenses.

Evidence as to the plaintiff’s total financial circumstances and evidence as to whether payment of the additional medical expenses would amount to undue and unusual hardship is lacking in the record before us. The trial court correctly limited plaintiff’s recovery to $12,500 and appropriately reserved plaintiff the right to pursue recovery of past and future medical expenses in excess of $12,500 in another proceeding.

For the reasons assigned, the judgment of the district court is affirmed at the cost of defendants-appellants.

Affirmed.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    TARGET RENTAL TOWEL, INC., Plaintiff-Appellant, v. Johnny A. BYRD, Defendant-Appellee.
    No. 13106.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.

      Love, Rigby, Dehan & Love by Truly W. McDaniel, Shreveport, for plaintiff-appellant.
    J. Stacey Freeman, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Plaintiff corporation (Target) appeals from a judgment rejecting in most part its demands to enjoin Defendant Byrd, a shareholder and former employee, from competing with Target in the business of renting towels to industrial and commercial users.

Two written agreements not to compete were signed by Byrd on December 13, 1971. One agreement (styled “Covenant Not to Compete”) was between Byrd and Rodney L. Stevens, as shareholders of Target. The other was between Byrd, as employee, and Target, as employer. Stevens signed this agreement for Target.

Target generally contends that Byrd, as a shareholder in Target, and as a partner with Stevens in a “partnership” as shareholders in Target, is not an “employee” within the meaning of R.S. 23:921 which would preclude enforcement of non-competition agreements unless the employer incurs an expense in training the employee or advertising the employee’s connection with the business.

The lower court held Byrd to have been an employee of Target and that Target had not spent a sufficient amount of money in training or advertising Byrd so as to come within the proviso of R.S. 23:921. The record fully supports the trial court’s judgment and we affirm.

Where a person sells a going business to a purchaser and remains an employee of the business after the sale, an agreement not to compete may be enforced against that person, should he terminate the employment and engage in competition. Gold & Suckle, Inc. v. Suckle, et al, 335 So.2d 713 (La.App.2d Cir. 1976). Liquidated damage provisions have also been upheld because of violation of a non-competition agreement executed between partners upon creation of a true professional partnership. McCray v. Cole, 236 So.2d 863 (La.App.3d Cir. 1970).

As to those in employee-employer status, the controlling case is Orkin Exterminating Company v. Foti, 302 So.2d 593 (La.1974). There the Supreme Court granted certiorari to “resolve a conflict in the intermediate court decisions interpreting the legality of agreements . . . not to compete.” As the Supreme Court there noted and held, the basic public policy of Louisiana disfavors non-competition agreements exacted of employees. The 1962 amendment to R.S. 23:921, providing that such agreements could be enforced where the employee incurs expense in training or advertising the employee, was there held not to repeal the basic public policy. The Supreme Court said:

“In view of the fundamental policy of the basic statute, the apparent purpose of the 1962 amendment, . . . ‘is to protect an employer only where he has invested substantial sums in special training of the employee or in advertising the employee’s connection with his business.’ ” 302 So.2d 593, 597.

The court had earlier stated:

“We resolve the conflict [between the intermediate appellate courts] by approving National Motor Club v. Conque [173 So.2d 238 (La.App.3d Cir. 1965)] and its progeny. Aetna Finance v. Adams [170 So.2d 740 (La.App.1st Cir. 1964)] and those decisions which follow its rationale or reach its result are overruled.” 302 So.2d 593, 596.

Delta Finance Company of Louisiana v. Graves, 180 So.2d 85 (La.App.2d 1965) is more analogous to the rationale of Aetna Finance Co. v. Adams, supra, than as to National Motor Club v. Conque, supra. Indeed the trial court there relied on National Motor Club. We distinguished National Motor Club and reversed the trial court, citing the fact that National Motor Club conflicted with Aetna Finance Co. We do not find the Delta Finance Company case authoritative here for the reasons expressed in the Orkin Exterminating Company case by our Supreme Court in 1974.

The basic public policy of Louisiana disfavors the enforceability of agreements not to compete exacted from employees by employers. Only in instances where the employer has invested substantial sums in special training of the employee or in advertising the employee’s connection with the business, will the proviso of R.S. 23:921 be recognized and then to the limited extent therein provided.

The record reveals that Byrd was working for a competitor, American Dust Control, before he began working for Target in December, 1971. Byrd was solicited by Stevens to come to work as manager for Target, which was newly incorporated. Target’s predecessor and associated company was Target Wiping Cloth Company, owned by Raymond Stice. The wiping cloth company owned the facilities out of which Target operated, provided office space and cleaned and recleaned towels with which Target serviced its customers. Target paid the wiping cloth company for these services and facilities. Byrd owned no interest in the wiping cloth company.

Byrd’s duties were establishing, as well as servicing, routes among customers who were solicited to use towels and products of Target. Byrd was promised ten percent of Target’s shares as an inducement to come to work for Target. About one month after he began working, this agreement was written and executed between Byrd and all the officers and shareholders of Target:

“This Stock is issued in consideration for loyal and diligent service and the furnishing to Target Rental Towel Incorporated covenants and work contracts. We agree to issue 5 Shares of Target Rental Towel Incorporated and 5 Shares at the end of 12 months for loyal employment to Johnny Byrd.”

The agreement was consummated by the issuance of the shares to Byrd as contemplated.

In two or more transactions, Byrd thereafter bought from Stevens an additional 20 shares for cash. By December 3,1975, Raymond Stice had died and Stevens was no longer a shareholder or employee of Target. On that date, David Stice (oldest son and heir of Raymond Stice) by corporate resolution, was authorized as secretary of Target, to cancel and reissue the stock of Target to reflect ownership by three persons of an equal number of shares. Byrd was given an additional three and one-third shares to equalize the ownership of the corporation, in a corporate resolution which stated in part:

“. . . That an additional 3V3 shares of Stock be issued to JOHNNY A. BYRD in addition to .his thirty shares (30) for services rendered and to be rendered . and that the stock be [re]issued as follows:
David L. Stice 33V3 Shares
Jack Otis 33V3 Shares
Johnny A. Byrd 33V8 Shares”

David Stice controlled two-thirds of Target’s shares and controlled the wiping company whose facilities and services Target was using. Stice periodically caused to be increased the rental and service fees charged to Target.

Byrd assigned this as the reason he quit Target about May 2, 1976, and resumed-working for American Dust Control. Two other Target employees followed or accompanied Byrd from Target to American. This instant litigation was instituted about two weeks later against Byrd.

While Byrd, as a shareholder and officer of Target, enjoyed certain executive functions, he was nonetheless an employee of the corporation. He was paid a salary and more than one-third of his own shares came to him for services performed as an employee of the corporation. Byrd also received some commissions from Target ($50 for each 1,000 in gross sales above $9,000 per month). He was paid nothing in dividends and his status in the corporation, even as a one-third minority shareholder, was subject to the desire of the corporate board of directors, which of course was controlled by the two-thirds majority shares. The right of control and direction in the conventional sense of the employment relation is one of the most important tests in determining whether one is an employee. Whether the right is exercised is of much lesser importance. Simpson v. Kelly Services, Inc., 339 So.2d 490 (La.App.2d Cir. 1976), Amyx v. Henry & Hall, 221 La. 364, 79 So.2d 483 (1955). We agree with the trial court that Byrd was an employee within the context of R.S. 23:921.

The record also establishes that Target paid approximately $25 for business cards for Byrd (about 1,000 cards) and approximately $75 for a newspaper advertisements) linking Byrd and Stevens with Target in January, 1972. Even should the entire cost of advertising be allocated to Byrd, the total amount shown to have been expended would be less than $25 per year for the 4.3 years Byrd was employed by Target. Target expended nothing training Byrd. This is not sufficient to bring Byrd within the proviso of section 921 as interpreted by the Supreme Court in Orkin Exterminating Company v. Foti, supra.

The “Covenant Not to Compete” (footnote one, supra) between Stevens and Byrd also does not avail Target. When it is viewed in context with the agreement with Target executed the same day (footnote two, supra), as it should be, it is nothing more than an attempt to circumvent R.S. 23:921. It is not a restriction on the transfer of the shares owned by Stevens or Byrd. R.S. 12:57(F). It is apparently contingent upon the employment by Target of Byrd and Stevens. In this respect, it states:

“If any party . . ., during the term of this contract [?] or for a period of five years after the sale of the shares of stock shall . . . engage [in competition] . . . then the other parties ... or the corporation . shall be entitled [to injunctive relief] . . .” (Emphasis supplied).

Stevens is no longer connected with Target, as an employee or as a shareholder. Should the agreement be construed as enforceable between the shareholder-signatories (and we do not so hold), it is not enforceable by the corporation, when the circumstances under which it was executed are considered. Byrd did not participate in the creation of the corporation or induce others to invest in its venture. Byrd was the one induced by others to assume employment with Target and minority ownership of Target’s shares in return for agreeing to work for the corporation. The circumstances of and consideration for Byrd’s association with Target are not remotely similar to circumstances involving the sale or creation of a business where non-competition agreements have been enforced. See and compare Gold & Suckle, supra, and Mathieu v. Williams, 255 So.2d 151 (La.App.2d Cir. 1971).

At appellants’ cost, judgment is

AFFIRMED.

      . “. . That each party to this agreement is a shareholder in TARGET “That TARGET ... is engaged in the business of towel rentals, [etc] “That all parties ... in consideration of the mutual promises granted herein, do hereby covenant . . . that each party . will not, within a five year period commencing after the sale of the shares of stock in TARGET . , directly or indirectly engage in the business of towel rentals, dust control service (mops, walk-off mats, hand wipes), and uniform rentals, within a 100-mile radius of the city of Shreveport, ... If any party to this agreement, during the term of this contract or for a period of five years after the sale of the shares of stock in TARGET . . shall, in violation of this provision, engage in the business described herein, then the other parties to this agreement or the corporation shall be entitled to an [injunction] injoining [sic] and restraining such person from the continuance of such conduct of the business made subject of this agreement not to compete.”

      . WHEREAS, Employer desires to employ Employee, and Employer will expend its funds in training and publicizing Employee in the Towel Rental Business, Dust Control Service (mops, walk-off mats, hand wipes), and Uniform Rental Business, and incur an expense in the training and publicizing of Employee for the purposes stated herein; .
      EMPLOYER AGREES to employ the above named Employee, and said Employee agrees to continue in the employment of Employer, subject to the additional provisions of the Contract. The consideration for the execution hereof is Ten Dollars ($10.00), and other good and valuable considerations, paid to Employee by Employer, the receipt of which is acknowledged by Employee.
      ******
      “This contract of employment may be terminated by either party, with or without cause and without notice, but upon such discontinuation of employment the additional provisions of this contract shall nevertheless remain in full force and effect.
      “It is understood . . . that the Employer’s business requires that Employee . solicit business from the customers of said Employer, and thus create ... a personal relationship between Employee and customers or potential customers of Employer. In addition, Employee will . . learn and be trained to know Employer’s methods of business as well as the customers or potential customers upon which said Employee will be required to call and visit with during the performance of the customary course of business, and because of the personal relationship thereby created between Employee and customers as well as potential customers of Employer, irreparable damage to Employer could and would result if the Employee should leave the Employer’s employment and, within a reasonable time, engage in a business or operation or as an employee of some other business or operation in competition in any manner to that of the above named Employer within the area in which said Employer does business. The provisions of this particular paragraph have been explained to and are well understood by Employee prior to the execution of this contract. “In consideration of the aforementioned promises and in further consideration of the continued employment by Employer of Employee, the Employee agrees that he will not at any time, while he is in the employment of the above named Employer or within twenty-four (24) months after cessation of his employment with said Employer, . engage in the towel rental, dust control (mops, walk-off mats, hand wipes), or work uniform rental business, directly or indirectly competitive with the business of the above named Employer, in the same territory in which Employer is transacting business, . which is a geographical area having a 100 mile radius from the City of Shreveport “In addition to the foregoing agreement, Employee further agrees and covenants that he will not, whether directly or indirectly, solicit, divert, service, attempt to take away or in any manner take away any of the customer business, potential customer business or patronage of the above named Employer during the specified period of time herein set forth and within the specified area herein set forth. In this connection, and before the execution hereof, Employee understands the specific area that he shall not compete with Employer and agrees to the terms and provisions thereof.

      “TARGET RENTAL TOWEL, INC.
      “BY: S/Rodney L. Stevens_ EMPLOYER
      “ S/Johnnv A. Bvrd_ EMPLOYEE”

      . R.S. 23:921: “No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract of employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court, provided that in those cases where the employer incurs an expense in the training of the employee or incurs an expense in the advertisement of the business that the employer is engaged in, then in that event it shall be permissible for the employer and employee to enter into a voluntary contract and agreement whereby the employee is permitted to agree and bind himself that at the termination of his or her employment that said employee will not enter into the same business that employer is engaged over the same route or in the same territory for a period of two years.”


author: BOLIN, Judge.

text:
    W. L. HOFFOSS, Plaintiff-Appellant, v. RALSTON PURINA COMPANY et al., Defendants-Appellees.
    No. 13107.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    Drew, White, Drew & Drew by Robert C. White, Minden, for plaintiff-appellant.

      Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, Kitchens, Benton & Kitchens by Graydon K. Kitchens, Jr., Min-den, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Several of plaintiff’s cows died after eating a high energy cattle feed sold to plaintiff by defendant retailer. Plaintiff sued both the retailer and the manufacturer of the feed for the value of the dead cattle. The retailer reconvened for the unpaid purchase price of the feed. The trial court rejected plaintiff’s demands without mentioning the reconventional demand. Plaintiff appeals and the retailer answers the appeal seeking an award under its recon-ventional demand. After the appeal was lodged in this court plaintiff died and the administratrix of his estate has been substituted as appellant. We affirm the judgment rejecting plaintiff’s demand but award the retailer judgment against the plaintiff for the amount due for purchase of the feed.

It being conceded the feed was not defective, the primary question is whether defendants warned plaintiff that it could be harmful to his cattle unless proper feeding procedures were followed.

The general rule is that retailers and manufacturers of potentially dangerous products have a duty to give adequate warning to purchasers of the possible danger involved in using that product. H. Williams v. Allied Chemical Corporation, 270 So.2d 157 (La.App. 1st Cir., 1972).

Plaintiff had been raising cattle for six years and had two years of college education in agricultural vocation. He purchased 6000 pounds of “Cattle Complete”, a high energy feed, from Cone’s Farm & Garden Mart, Inc. This feed is manufactured by Ralston Purina. Upon delivery of the feed plaintiff loaded it into a feeder and put it into a pasture containing 25 or 30 of his cattle. Within a short time the cattle became sick. Two veterinarians wére called but by the next day several of the cows had died.

Two veterinarians testifying for plaintiff were of the opinion that the cause of the cattle’s death was their too rapid ingestion of the high energy feed. These experts stated that cows which have been on hay or grass should not be suddenly introduced to this type of feed and allowed to eat without supervision.

Plaintiff testified he received no warning as to the danger of giving his cattle free access to the feed. He admitted that at the time his cattle were stricken he knew generally that if he changed the cows’ feed he should do so gradually to condition their digestive systems. The plaintiff also ran a restaurant, and he stated he did not have time to regulate the feed eaten by his cattle.

Mr. Miller, a neighbor of plaintiff who had raised steers for 50 years, stated that in the past he had talked with plaintiff about the proper method to break in cattle on new feed and that this knowledge should be common to anyone who had raised cattle for six years.

Mr. Cone, Sr., admitted he had not instructed plaintiff as to the proper feeding method at the time of the sale but contended he had explained to him the correct feeding procedures several times over the past few years.

Mr. Cone, Jr., testified he discussed with plaintiff the proper method of utilizing “Cattle Complete” at the time of the sale. He said he also explained to plaintiff at his farm on the day of delivery that if the cattle were given free access to the feed they would become sick. He suggested that plaintiff put the feeder in the corral to limit better the cattle’s access to the feed, but the plaintiff chose to ignore his suggestion.

We find the trial judge was correct in adopting the Cones’ version of the facts and in finding that plaintiff was adequately warned of the danger involved in allowing cows free access to high energy cattle feed without gradually conditioning their systems.

The Cone company, by its answer to the appeal, properly put at issue its recon-ventional demand. Louisiana Code of Civil Procedure Article 2133 provides “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.”

It is uncontroverted that 6132 pounds of “Cattle Complete” ordered by plaintiff was delivered to his farm on January 29. Mr. Cone testified he returned to plaintiff’s farm and picked up 740 pounds of the feed on April 14. The ledger sheet showed plaintiff was charged $372.52 for the delivered feed and that he was given credit for $44.96, representing the 740 pounds picked up by Cone. The balance of the account is presently due and unpaid.

The judgment is amended to substitute the administratrix of plaintiff’s estate as party plaintiff, and to grant judgment in favor of Cone’s Farm & Garden Mart, Inc., against plaintiff for $327.56 plus interest from date of judicial demand. As thus amended the judgment is affirmed at appellant’s cost.


author: PRICE, Judge.

text:
    ARKANSAS LOUISIANA GAS COMPANY, Plaintiff-Appellee, v. CITY OF MINDEN et al., Defendants-Appellants.
    No. 13109.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    Robert C. White, Minden, for defendants-appellants.
    Blanchard, Walker, O’Quin & Roberts, by W. Michael Adams, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and JONES, JJ.
   PRICE, Judge.

The City of Minden has appealed the judgment requiring it to compensate Arkansas Louisiana Gas Company for the cost of lowering three pipelines in connection with a project to improve the drainage of Mile Creek, a non-navigable stream which serves as a natural drain for a large area of the City.

On prior appeal, judgment granting Ark-la injunctive relief, and awarding it $16,-814.91 as the estimated cost of relocation, was set aside, and the case was remanded for further evidence. See 325 So.2d 852 (La.App.2nd Cir.1976).

On remand, the trial court confirmed its original finding that in forcing the utility company to lower its pipelines, the City was exercising its power of eminent domain, and must compensate the utility for the cost of relocation. The court revised its prior award to accord with the evidence presented on rehearing, showing the actual cost of relocation of the lines was $24,-938.71. (Subsequent to the original judgment, Arkla lowered its lines, and the City paid the estimated cost to the utility under protest. Therefore, the injunctive issue became moot.)

On this appeal, the sole issue is whether the municipality must expropriate the rights-of-way of the utility company which are affected by the improvement of a natural drain, or may the municipality require the relocation without compensation under the exercise of its police power.

The following facts are shown by stipulation or evidence presented on rehearing:

1) Prior to the initiation of the drainage project, Arkla maintained a 20" high pressure transmission line; an 8" distribution line; and a 2" distribution line under right-of-way grants and ordinances of the City of Minden which afford it a right of servitude across the bed of Mile Creek, a non-navigable stream which is a natural drain.
2) These lines were buried 30" or more below the surface of the bed of Mile Creek prior to the drainage improvement, and did not interfere with the flow of water through the then existing natural drain.
3) The work undertaken by the City in conjunction with the State Department of Public Works consists of widening and deepening of Mile Creek, and is not routine clearing and maintenance of the natural drain.

The City contends Arkla acquired its pipeline servitudes subject to the condition that the lines would not interfere with the police power of the State to maintain or improve the natural drain which the lines traversed. In support of this position, it relies on the decision in Petit Anse Coteau Drainage District v. Iberia and V. R. Company, 124 La. 502, 50 So. 512 (1909).

In Petit Anse, the railroad bridges and trestles crossing a non-navigable stream were an impediment to the drainage district’s clearing and deepening of the natural drain. The Supreme Court, in upholding the drainage district’s right to appropriate the bridges without payment of compensation, discussed the applicable principles of law as follows:

. In the instant case the general authority contained in its charter, under which defendant constructed its road and bridged or trestled the natural drains of the state, conferred upon it no right to obstruct those drains or to render them inaccessible for purposes of maintenance. Nor did it guarantee the defendant against the deepening and widening of the drains by the state in the proper exercise of its police power.
¡{S !j< * * $ $
. As between it and the state, represented by plaintiff, exercising the police power of the state, we are of opinion that it can be so required. It is true that the law (which has been quoted) contemplates the expropriation of property, and payment therefor, when new drains are cut, but we do not understand it to mean that the owner of land through which an old, natural, drain passes is to be compensated for such shovelfuls of earth as are removed in making such drain efficient.

Several cases with similar questions of law have refused to follow the Petit Anse case in the years following its rendition. In this circuit, a drainage district was required to compensate an adjoining landowner of a natural drain being widened and deepened for land used for spoil dirt. Scott v. Red River-Bayou Pierre Levee and Drainage District, 7 So.2d 429 (La.App.2nd Cir.1942). Also see Grayson v. Bossier Levee District, 229 So.2d 139 (La.App.2nd Cir.1969).

The Third Circuit commented on Petit Anse in 1961:

The Petit Anse Coteau Drainage District case was decided in 1909, and although it does not appear ever to have been overruled, the later jurisprudence is to the effect that the landowner is entitled to compensation for property appropriated under certain circumstances similar to those presented in that case.

Bernard v. State of Louisiana, Department of Public Works, 127 So.2d 774 (La.App.3rd Cir.1961).

The City contends the cases which refuse to follow the Petit Anse decision are factually distinguishable from the instant case as they were concerned with the attempt by a state agency acting under its police power to take additional land from a landowner, whereas the taking in this case is merely of a right of servitude which prevents the City from fulfilling its duty to clear and improve a natural drain.

This argument has been rejected by this circuit in Arkansas Louisiana Gas Company v. Louisiana Department of Highways, 104 So.2d 204 (La.App.2nd Cir.1958). Although the taking of a pipeline right-of-way was by the Department of Highways in connection with the widening of a highway in that case, the principles of law relied on are applicable to the issue now before us.

The principle that a right-of-way, whether denominated as easement or servitude, is property and that damage to its free use by the owners thereof amounts to a taking of property, is too well established to admit of question. The right of servitude as a form of incorporeal property is specifically defined by Article 460 of the LSA-Civil Code. The taking of or the interference with the use of an easement or servitude entitles the owner to compensation; .
Equally obvious and conclusive are the constitutional prohibitions against the taking of property without payment of compensation embodied in Article 1, Section 2 of the LSA-Constitution of 1921, and the Fourteenth Amendment to the Constitution of the United States.
By way of defense to plaintiff’s claims defendant urges that its actions in the instant case have been taken under the broad authority of the exercise of the police power of the State and cites as authority, inter alia, the cases of New Orleans Gaslight Co. v. Hart, 40 La.Ann. 474, 4 So. 215; New Orleans Gas-Light Co. v. Drainage Commission, 111 La. 838, 35 So. 929; 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831; and City of Shreveport v. Kansas City, Southern & G. Ry. Co., 167 La. 771, 120 So. 290, 62 A.L.R. 1512.
With respect to this contention we first observe that we do not subscribe to the argument that defendant’s action in this case involves the exercise of the police power.
******
. Quite another factual proposition is presented in the instant case, for there is no contention whatsoever that the mere presence of plaintiff’s pipeline underlying a highway represents a grave danger to the traveling public. The regulation required by defendant did not involve nor necessitate the removal of plaintiff’s pipeline on the ground that it constituted a menace or hazard to the public safety. To say that the enforcement of a simple regulatory provision constitutes a proper exercise of the police power of the State would be to extend the right of use of such a potentially dangerous power beyond the limits of reason and the necessities of public purpose.

The right to compensation for private property taken in the deepening and widening of a natural drain by the Department of Highways was recently recognized by the Third Circuit in Daspit v. State, Department of Highways, 325 So.2d 368 (La.App.3rd Cir.1975).

The Louisiana Constitution of 1974, mandates that compensation be paid for the taking of private property for a public purpose. The sole instance provided for a municipality to appropriate property is under Article 1, § 4, in taking property necessary for levee and levee drainage purposes. The instant case has no connection with drainage for levee purposes.

The pipelines of Arkla were not an impediment to the free flow of drainage waters through Mile Creek as it existed at the time the lines were constructed.

The improvement project on Mile Creek was undertaken to provide drainage for a larger area of the City of Minden, and after completion, the flow of water through the natural drain will be increased. The depth and width of the creek has been substantially increased, and the course of its channel has also been straightened in areas to accommodate the additional drainage. Because of the extent of the work done, the improvement project is beyond normal maintenance on the existing drainage servitude. It is only because of the additional depth and width that Arkla lines have become an impediment to the natural drain. The City may not resort to the exercise of its police power in expanding natural drains to avoid paying compensation for the property taken.

We find the City has exercised its power of eminent domain in requiring Arkla to lower its pipelines, and therefore, must compensate Arkla for the reasonable cost of performing this work. The judgment is affirmed at appellants’ costs.


text:
    Deborah Smith GREENWOOD, Plaintiff-Appellant, v. Steven D. GREENWOOD, Defendant-Appellee.
    No. 13110.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    S. Frank Harlow, Bossier City, for plaintiff-appellant.
    Ford E. Stinson, Benton, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Deborah Smith Greenwood has appealed from the judgment rejecting her demand for a separation from bed and board on grounds of cruel treatment and habitual intemperance on the part of her husband, Steven D. Greenwood.

This young couple was married on November 24, 1973. The one child of this marriage was six months old at the time of their separation. Plaintiff moved from the matrimonial domicile in Shreveport on April 21, 1976, because of the defendant’s alleged ill treatment of her and the child.

No useful purpose would be served by reciting in detail the allegations made by the parties against each other in this appellate opinion.

The most serious accusation made by plaintiff is that her husband has physically abused her on many occasions, and this mistreatment culminated on the morning of April 16, 1976, when defendant allegedly struck plaintiff about the arms and body while in a rage. Defendant denies having physically attacked plaintiff although admitting they have had several violent domestic quarrels. Plaintiff contends she had bruises and contusions on several occasions which were observed by her family. Plaintiff’s mother testified she had seen bruises on her daughter, but plaintiff had never told her at the time defendant was the cause of the marks.

Plaintiff’s allegation of defendant’s excessive use of alcohol, and occasional use of drugs and marijuana are not supported by the evidence.

There is, at most, proof of the consumption of moderate amounts of beer on a regular basis. The use of a caffeine derivative drug was temporary to enable defendant to adjust to a night shift in his employment. There is no probative evidence of use of marijuana.

The trial judge evaluated the conflicting testimony relating to the acts of cruel treatment, and concluded plaintiff had failed to carry the burden of proof required of her to prove her demands by a fair preponderance of the evidence. We find no abuse of the wide discretion vested in the trial judge in resolving factual questions involving the credibility of witnesses, and affirm the judgment.

Costs of this appeal are assessed to appellant.


author: JONES, Judge.

text:
    VOLUME SHOE CORPORATION et al., Plaintiffs-Appellees, v. Mary L. ARMATO, Defendant-Appellant.
    No. 13111.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.

      Brocato & Mangham by C. P. Brocato, Shreveport, for defendant-appellant Mary L. Armato.
    Blanchard, Walker, O’Quin & Roberts by J. Edgerton Pierson, Jr., Shreveport, for plaintiffs-appellees and intervenors-appel-lees, Pay-Less Shoes, et al.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for plaintiff-appellee Aetna Cas. & Sur. Co. and Mary L. Armato, defendant-appellant.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Defendant Mary Armato’s automobile veered off the roadway after an intersec-tional collision and crashed into the Pay-Less Shoe store in Shreveport. Damages to the building, fixtures, and merchandise totaled almost $36,000.

Plaintiff Fireman’s Fund Insurance Company, hazard insurer for the building, merchandise and store fixtures, paid to Volume Shoe Corporation the portion of the loss covered by its policy. Volume Shoe and Fireman’s sued Mrs. Armato and her automobile insurer, Aetna Casualty & Surety Company, for the total loss ($35,932.50), asserting all damages were the result of her negligence. Fireman’s Fund Insurance Company asserted it had a subrogated claim in the amount of $29,512.85, while Volume Shoe Corporation claimed nonsubrogated damages of $6,419.65.

The case came to trial on April 9, 1974. At the end of the day's testimony, the case was held open for 30 days by agreement of counsel in order to permit the taking of two depositions. After the depositions were taken but prior to the expiration of the 30 day period or filing of the depositions in the record, Pay-Less Shoe # 380 Company, Inc. and Roy C. Page filed a motion for leave of court to intervene. Pay-Less # 380 is a wholly owned subsidiary of Volume Shoe Corporation and is the actual owner of the damaged fixtures and merchandise. Roy C. Page is owner and lessor of the damaged building.

After argument and filing of briefs, the trial court allowed the intervention. Judgment was rendered in favor of Fireman’s Fund Insurance Company and Pay-Less # 380 Company, Inc. against Mary L. Armato for $35,932.50, subject to a credit of $10,000 earlier deposited in the registry of the court by her insurance company. Page’s claim asserted in the intervention was not recognized because it was held validly subrogated to Pay-Less # 380 and Fireman’s Fund. Mary Armato appeals. We affirm.

Appellant first asserts Fireman’s Fund has not been validly subrogated because payment under the policy was made to Volume Shoe and not to Pay-Less # 380. She further asserts the conventional subro-gation given by Volume Shoe cannot subro-gate Fireman’s Fund to the claims of Pay-Less # 380, even though the officer of Volume Shoe signing the subrogation was also an officer of Pay-Less # 380, and it was his stated intent to convey any and all possible rights against Mary Armato to Fireman’s Fund.

We think the payment to Volume Shoe by Fireman’s Fund for the fixtures and merchandise had the same effect as a direct payment to Pay-Less # 380. Although the actual check was payable and delivered to Volume Shoe, the money was transferred by Volume Shoe to Pay-Less # 380 by various bookkeeping entries. Such indirect payment is recognized in Civil Code Art. 2140, which provides:

“The payment must be made to the creditor, or to some person having a power from him to receive it, or who is authorized by a court, or by law, to receive it for him.
“Payment made to a person, not having power to receive it for the creditor, is valid, if the creditor has ratified it, or has profited by it.” (Emphasis added)

The same result occurred with regard to the damages to the building owned by Page when Fireman’s Fund delivered a check payable to Volume Shoe and Page (thereafter endorsed by him) to Volume Shoe for the benefit of Pay-Less # 380, which had paid for damages to the building under a contractual obligation contained in its lease with Page.

Regardless of the effect of the conventional subrogation, Fireman’s Fund was legally subrogated to the rights of Pay-Less # 380 upon payment to it of the insurance proceeds by virtue of the provisions of LSA-C.C. Art. 2161. As stated in Hartford Accident and Indemnity Company v. Byles, 280 So.2d 624 (La.App., 3d Cir. 1973):

“We think the insurer who is bound under its contract of insurance for payment of the loss or damages caused by a third party, and who is forced to pay under that contract as the result of the negligence of that party, is legally subrogated under LSA-C.C. Art. 2161 to the rights of its insured against the third party tort-feasor to the extent of the payment which it was required to make.” (Citations omitted)

Accord, Reynolds v. Hartford Accident and Indemnity Company, 228 So.2d 76 (La.App., 2d Cir. 1969).

Appellant’s second assertion is that the trial court erred in permitting an intervention by Pay-Less # 380 because it comes too late under LSA-C.C.P. Art. 1033 as it “. . . retard[s] the progress of the principal action.”

The court in General Motors Acceptance Corporation v. Jordan, 65 So.2d 627 (La.App., 1st Cir. 1953), in discussing similar language in Art. 391 of the Code of Practice of 1870, held such language meant an intervention could be filed only while the suit by the original parties is pending, before judgment is rendered in the main demand. The additional language in C.C.P. Art. 1033, requiring leave of court, can only be interpreted to grant the court wide discretion in deciding whether to allow such intervention.

Since the intervention here was filed pri- or to the summission of the case for judgment, we cannot say under these facts the trial court abused its discretion in allowing the intervention.

Appellant also argues Pay-Less # 380 cannot intervene because it does not have “. . .a right related to or connected with the object of the pending action .” as required by LSA-C.C.P. Art. 1091. This argument is without merit. The right asserted by Pay-Less # 380 is the same as that asserted by Fireman’s Fund— in fact, the rights of Fireman’s Fund are merely those rights of Pay-Less # 380 which have been subrogated to it.

Accordingly, the judgment of the lower court is affirmed, appellant to pay all costs of this appeal.

Affirmed.

      . Art. 2161. Legal subrogation
      “Subrogation takes place of right;
      ******
      “(3) For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.
      >H >ft >f( * * })<

      . Art. 1033:
      “An incidental demand may be' filed without leave of court at any time up to and including the time the answer to the principal demand is filed.
      "An incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action, or if permitted by Articles 1066 or 1092.
      “An incidental demand that requires leave of court to file shall be considered as filed as of the date it is presented to the clerk of court for filing if leave of court is thereafter granted.”

      . The comment under Art. 1033 states: “. (the article) . . permits the filing of the incidental demand thereafter and with leave of court, as long as the court thinks the incidental demand will not retard the progress of the principal action , , .” (Emphasis added)

      . Art. 1091:
      “A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
      “(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
      “(2) Uniting with defendant in resisting the plaintiff’s demand; or
      “(3) Opposing both plaintiff and defendant.”


text:
    Travis G. HUNT and Annie Mae Hunt, Plaintiffs-Appellees, v. FORD MOTOR COMPANY, Defendant-Appellant.
    No. 13113.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.

      Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for defendant-appellant.
    Johnston, Thornton, Greer & Cage by James J. Thornton and L. Edwin Greer, Shreveport, for plaintiffs-appellees.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

This products liability case arises out of a one car accident which occurred when the steering wheel of plaintiff’s car allegedly froze, causing the car to run off the highway and overturn, resulting in severe injuries to plaintiff.

Plaintiffs, Mrs. Hunt and her husband, sued Ford Motor Company, manufacturer of the automobile, Buster Gant Ford, Inc. of Oil City, Louisiana, the dealer from whom the automobile was purchased, and Gant’s insurer. Plaintiffs and Gant compromised their suit as the trial commenced. After trial, the jury returned a verdict against Ford Motor Company in favor of Mrs. Hunt for $100,000 and in favor of Mr. Hunt for $17,000. Answering a special interrogatory the jury also found Gant negligent, and, accordingly, the amount awarded plaintiffs against Ford was reduced by one-half in view of the earlier compromise with Gant in accordance with the rule established by Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3d Cir. 1964) and approved by the Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Ford appealed seeking to reverse the finding of liability on its part. Plaintiffs answered the appeal seeking reversal of the finding of negligence on the part of Gant and the consequent reduction of the amount awarded by the jury. Neither side questions the amount awarded by the jury, if there is liability.

For the reasons set forth in this opinion, we affirm the judgment of the district court.

The only evidence as to how the accident happened is the testimony of plaintiff herself, the testimony of the state trooper who investigated the accident, and the testimony of a witness who was driving near the scene but did not actually see the accident.

Mrs. Hunt, a 57 year old wife and mother of three, employed as a nurses aide at a hospital in Shreveport, testified she was on her way home from work about 4:00 on the afternoon of December 5, 1972. She was driving north on Highway 1, north of Shreveport, at a speed of 55-65 miles per hour. The posted speed limit at the time was 60 miles per hour. It was raining and the two-lane paved highway was wet. She pulled into the left lane to pass a car and as she did so she heard a loud “pop” in the steering column. When she got past the car she was passing and attempted to turn back into the right lane, the steering wheel “froze” and would not turn. This is the last thing she remembers although she was fairly certain she then applied her brakes.

The car left the highway on the left-hand side, struck a mailbox, a culvert, several small pine trees, overturned and came to rest against a stump, some 110 feet from where it left the highway.

E. L. Newland was driving south on Highway 1 near the scene of the accident. He saw a car in front of him put on his brakes and “fish tail” indicating the highway was slick. He then saw Mrs. Hunt’s car in the ditch to his right, but did not actually see Mrs. Hunt’s car leave the road. The driver of the car in front of him went to call for help and apparently did not return to the scene. Newland stopped to help.

Mrs. Hunt was pinned under the steering wheel of the car. Large clippers were used to cut the steering wheel so she could be removed from the automobile.

Mrs. Hunt was seriously injured, was in intensive care for about three weeks and was in the hospital for about nine months.

The car was a total loss and was sold to Willie Vedlitz, co-owner of Jake’s Auto Parts, for $300-$400. The car remained in his salvage yard, but he sold some parts related to the steering mechanism including the steering linkage and steering gear.

This suit was filed December 3, 1973, alleging the accident was caused by a manufacturing defect in the steering mechanism. This was the first Ford or Gant knew about any claims against them. About a year after the accident, when Mrs. Hunt was well enough, she and Mr. Hunt looked at the car in the salvage yard and took some photographs. In February, 1974, at the instruction of Gant’s attorney, the steering wheel and column (mast jacket) were removed from the wrecked automobile and sent to Herman Warkentin of Analysis Investigation Determination in Texas for examination. He disassembled the item and examined and photographed it. The disassembled steering column was later sent to Dr. William Tonn, an engineer and accident reconstruction expert in Houston, at the request of plaintiff’s counsel. The mechanism was later examined by Mr. Hop-pin with Ford in Michigan. The steering assembly was preserved and offered into evidence at the trial.

There was considerable testimony at the trial related to the history of the automobile since purchase and problems with the steering wheel. The Hunts purchased the 1972 LTD new from Gant in late 1971. Within a few days they noticed a “popping” noise in the steering wheel when turning. The steering wheel would also “hang up.” They noticed greasy “shavings” in their laps which came from the steering wheel or column.

The car was taken back to Gant. Employees of the dealer removed the steering wheel and looked at the column “from the top” inside the car. It was determined that the steering wheel was warped and that the shavings were caused by the steering wheel rubbing against the column. Gant installed a new steering wheel — a black one which was temporary until a proper matching red one could be obtained.

Mrs. Hunt continued to experience the same difficulties with the steering mechanism. She and various members of her family described some of the difficulties as “binding”, “it would bind on you”, “sluggish” and “hard to turn.” The car was taken back to Gant and the new red steering wheel installed. Mrs. Hunt continued to have the same problems after this last installation.

Mrs. Hunt testified she took the car to Gant many times complaining about the steering and that sometimes they wrote up a ticket and other times they were too busy to work on it. Gant’s records showed three occasions when a work ticket was written up, the two occasions mentioned above when the wheel was replaced twice, and a final occasion in August, 1972.

In August, Mrs. Hunt took the car to Gant again with the same complaints. Gant’s work ticket shows “steering wheel hangs when turning only at times.” At least two of Gant’s people, including Mr. Gant, road tested the automobile and found nothing wrong. The steering wheel was not disassembled or inspected in any detail. No work was done and the car was returned to Mrs. Hunt.

A few days later, Mrs. Hunt wrote Ford Motor Company complaining that the steering wheel of her car was warped, that she could not get satisfaction from Gant, and asked if Ford could do anything about it. The letter was mailed to Ford in Michigan. A few days later Mrs. Hunt got the letter back in a Gant envelope. No response was made to her complaint, but a Gant employee wrote a note on the bottom of the letter asking Mrs. Hunt for payment of a $7 bill owed by her to Gant.

Mrs. Hunt then took the car to Claude DeBeaux Ford in Vivian. Some work was done on the car, but DeBeaux’s records do not reveal anything related to the steering mechanism.

The accident occurred in December.

At the trial, Ford’s experts, Warkentin and Hoppin, each testified they examined the steering wheel and column removed from the automobile, found some damage which in their opinion was impact damage, and found nothing which could have caused the steering wheel to “lock” or “freeze.” Plaintiffs offered no expert testimony. A letter from Dr. Tonn, to whom plaintiff sent the steering mechanism for examination, was filed into evidence by both sides. The letter has little probative value, merely reciting that Tonn had examined the mechanism, that the shavings indicated a defect of some nature, and that the continuation of the same problems after the steering wheel was replaced indicated that Gant had failed to repair the original defect.

The Ford experts were not asked and did not testify whether the parts sold by the salvage yard related to the steering mechanism could have played a part in the alleged failure of the steering wheel to turn. The Ford experts’ testimony was limited to their examination of the particular parts examined by them, in which they found no defect accounting for the alleged failure.

The jury obviously believed Mrs. Hunt’s account of how the accident happened, that is, that the steering wheel froze and would not turn. Although Ford attacks her credibility on the basis of a number of alleged inconsistencies, all of the so-called inconsistencies are very minor and there is nothing of consequence in the evidence to cast doubt on her credibility. Although there are other reasonable possibilities of what caused the accident, such as excessive speed on a slick highway, the jury chose to believe Mrs. Hunt’s explanation that the steering wheel would not turn. Her unequivocal testimony to that effect, corroborated to some extent by the continued, seemingly related experiences of trouble with the steering from the time she bought the car to the time of the accident, constitutes sufficient evidence to support the jury’s finding.

To recover against Ford, plaintiff has the burden of proving the existence of an unreasonably dangerous manufacturing defect and that the defect caused the accident. Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971); Simon v. Ford Motor Company, 282 So.2d 126 (La. 1973). Accepting the fact that the steering wheel froze or hung up, it necessarily follows that there was a defect in the steering mechanism which caused the failure. Considering the well-documented and supported evidence that the steering mechanism “popped”, “binded”, and “hung up” from the time the car was purchased, with no evidence of intervening causation by faulty repairs, other accidents, or the like, it is reasonable to conclude that an unreasonably dangerous defect related to difficulty in steering existed from the time of manufacture. It is not necessary for plaintiff to prove the precise nature of the defect- — only that a manufacturing defect existed and that it caused the accident. While there is no expert testimony pinpointing the defect, the defendant’s expert evidence, limited to an examination of the salvaged, damaged, incomplete steering mechanism does not negate the possibility of a defect which could have caused the steering wheel to hang up or freeze to a degree which could have caused Mrs. Hunt’s car to run off the road while in a passing maneuver. The evidence of a manufacturing defect in the steering mechanism which caused the accident is sufficient to support the jury verdict.

Defendants cite numerous cases in which the manufacturer was held free from fault. These cases are distinguishable from the instant case. In most of these cases, the trier of fact found that the plaintiff failed to carry his burden of proof that a defect in the product caused the accident. In Elliott v. General Motors Corporation, 232 So.2d 907 (La.App. 2d Cir. 1970); Wishom v. Ford Motor Company, 256 So.2d 298 (La.App. 1st Cir. 1971); and Farmer v. Ford Motor Company, 316 So.2d 140 (La.App. 2d Cir. 1975), the finder of fact was persuaded by the testimony of defendant’s experts that the accident did not occur in the manner plaintiff claimed. In the instant case, the trier of fact was persuaded by plaintiff’s testimony and the corroborating circumstances rather than defendant’s experts. Furthermore, defendant’s experts were unable to make a complete examination of the steering mechanism in the instant case. In Grayson v. General Motors Corporation, 309 So.2d 373 (La.App. 2d Cir. 1975) writ refused 313 So.2d 602, eyewitnesses observed plaintiff apply her brakes immediately before she lost control of her car on a wet road, and the car functioned properly in extensive road tests after the accident. There were no eyewitnesses to Mrs. Hunt’s accident, and the condition of the car did not permit road tests. Once again, the appellate court affirmed the lower court’s findings of fact.

The cases of Simon v. Ford Motor Company, 282 So.2d 126 (La. 1973); Penton v. Budget Rent-A-Car of Louisiana, Inc., 304 So.2d 410 (La.App. 1st Cir. 1973) and West v. Hydro-Test, Inc., 196 So.2d 598 (La.App. 1st Cir. 1967), turned on plaintiff’s failure to show that the defect causing the accident existed at the time of manufacture. In the instant case, steering complaints began soon after the car was purchased. The same problems persisted after the dealer changed the steering wheel. There is ample basis for the jury’s finding that the original defect still existed at the time of and was the cause of plaintiff’s accident.

Appellant argues that Mrs. Hunt was contributorily negligent in driving too fast under the prevailing weather conditions and with unsafe tires. Assuming arguendo that her contributory negligence could bar her claim against the manufacturer, the evidence is insufficient to support a finding of excess speed or other negligence on her part.

Appellant also contends, alternatively, that Mrs. Hunt assumed the risk in driving her automobile at high speed knowing of the steering wheel problem. Mrs. Hunt, although aware of a problem with the steering, cannot be held to have been aware that the steering wheel would suddenly freeze or otherwise hang up to the extent that it would make it impossible to turn or control her car. She did not knowingly assume the risk of the problem with which she was confronted in this instance.

The next issue for consideration is the negligence of Gant and its consequent effect on the amount of the judgment against Ford.

A seller, as distinguished from a manufacturer, is not presumed to know the latent vices in the product he sells. Spillers v. Montgomery Ward, 294 So.2d 803 (La.1974). A retail automobile dealer ordinarily owes a duty of reasonable inspection of automobiles sold by it according to standards in the industry, but is not required to disassemble the automobile or make minute inspection for latent defects. Barker v. Phoenix Insurance Company, 220 So.2d 720 (La.App. 2d Cir. 1969) and Drummond v. American Insurance Company, 159 So.2d 61 (La.App. 1st Cir. 1963).

A repairman ordinarily owes a duty of reasonable care, inspection and repair work when an automobile is brought to him for repairs. If a repairman does not meet this standard and his failure to reasonably inspect and repair, or warn of unrepaired defects, causes an accident, the repairman is held liable for the damages occasioned by his negligence. Block v. Fitts, 274 So.2d 811 (La.App. 3d Cir. 1973).

A new car dealer with repair facilities, however, should be under a higher duty to discover and correct defects in a new car sold by it when the purchaser reports such defects and presents the automobile for repair. The usual new car warranty system virtually forces the purchaser to look to the dealer for the discovery of and repair of defects when symptoms of defects appear soon after purchase. It is the dealer and not the manufacturer whom the purchaser must look to and rely on for correction of difficulties that manifest themselves shortly after purchase.. When presented with complaints of difficulty with a vital component of an automobile such as steering control, the dealer-repairman owes a high duty to make all reasonable efforts to locate and correct the difficulty. The dealer is, in effect, given notice of the existence of a defect and although the precise nature of the defect may not be actually known, the dealer then may be presumed or considered as knowing the vice of the thing he has sold. To negative this presumption, it is incumbent on the dealer-repairman to show that he made all reasonable efforts to discover the precise nature of the defect and that the defect could not be discovered in spite of such efforts.

Where a manufacturing defect causes an accident and the dealer has prior notice of difficulties apparently relating to the defect with an opportunity to discover and correct the defect, in order to avoid liability for damages occasioned by the defect the dealer has the burden of showing he made reasonable and adequate efforts to discover the source of the difficulties and that the defect could not be discovered in spite of such efforts.

In this case, the difficulties with the steering were repeatedly called to the attention of the dealer. Beyond replacing the steering wheel and a cursory, visual inspection of the steering column, no efforts were made by the dealer to discover the source of the difficulties, which continued to exist. On the last occasion when the automobile was taken to the dealer with the same complaint of “hanging up” at times, the only inspection was a road test and no work was done. The steering mechanism was never disassembled or minutely inspected. Replacement of the steering wheel obviously did not solve the problem.

Our holding is that Gant must be considered as having knowledge of a steering vice or defect in the automobile, and having failed to make reasonable efforts to ascertain the exact nature of the defect and to correct it, or to warn the purchaser of danger, Gant is solidarily liable with the manufacturer for the damages resulting from the accident caused by a defect in the steering mechanism. The jury’s finding of fault on the part of Gant is supported by the evidence and the law.

The fault of Ford and Gant jointly contributed to causing the accident. Under Louisiana, law, they are solidarily liable. Canter v. Koehring Company, supra. Under the rule of Harvey v. Travelers Insurance Company, supra, plaintiff having settled with one solidary obligor, the remaining solidary obligor is entitled to have its liability reduced by one-half. The judgment is correct in this respect.

For the reasons assigned, the judgment of the district court is affirmed at the cost of defendant-appellant, Ford Motor company.

Affirmed.


author: GULOTTA, Judge. LEMMON, Judge,

text:
    Nolan JONES v. Francis FONTENOT et al.
    No. 7768.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.

      Carville & Edrington, Richard L. Edring-ton, LaPlace, for plaintiff-appellee.
    Taylor, Porter, Brooks & Phillips, Frederick R. Tulley, Baton Rouge, for defendant-appellant.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

In this appeal defendant seeks to be absolved from negligence by reliance upon the doctrine of “sudden emergency”.

The trial judge, in well-considered and well-written reasons for judgment, stated:

“The evidence shows Nolan Jones, the plaintiff herein, was proceeding on Airline Highway in the direction of Baton Rouge. He was in a line of cars that had come to a stop to allow an unidentified automobile to turn left. That vehicle, according to other testimony, made a U-turn on Airline Highway and proceeded toward New Orleans. Defendant, Francis Fontenot, Jr., was coming from Baton Rouge headed to New Orleans at approximately 65 miles an hour when the unidentified vehicle made a U-turn in front of him. He hit his brakes, swerved right then left, hit the median and went into the air, struck the front of plaintiff’s vehicle pushing it backward and causing it to strike the vehicle behind it.
“Keith Hayes, a passenger in the plaintiff’s vehicle and the plaintiff’s nephew, testified that when he first saw defendant’s vehicle it was a distance approximate to the distance from the front door to the rear door of the courthouse (175 feet), and that defendant’s auto was out of control at that time. He then ducked after warning plaintiff and the impact occurred shortly thereafter. Mr. Albert Jones, an independent witness also saw the unknown vehicle making the U-turn. His testimony is that the unknown vehicle and the defendant’s vehicle were approximately 150-225 feet away from each other when he first saw them. He also testified that the defendant’s vehicle was out of control from the time he first saw it until the impact.
“The Defendant testified that he struck the median because he was out of control. He further testified at the time of the accident that he had been driving but one month and had never been confronted with a situation of this nature and he may have panicked and lost control of his car. It is the contention of the defense that this accident was unavoidable, as young Fontenot was unable to do anything to avoid the accident. Yet the testimony belies that argument as it clearly indicates that virtually any other course of action except the one that Fon-tenot took would have prevented an automobile accident. His testimony is that there were no automobiles on the right shoulder of the road and that just prior to impact, the phantom U-turning vehicle was down the Airline Highway and headed on its way to New Orleans. This automobile accident would not have happened had young Francis Fontenot kept his vehicle under proper control. It is the first and primary obligation of a driver of a motor vehicle in the State of Louisiana to at all times have his vehicle under proper control and to at all times be able to react effectively to unpredictable and untoward circumstances. The law does not require Francis to take the best course of action to remove himself from a position of peril, but it requires him to act as a reasonable man under the circumstances in which he is in and the first requirement of those circumstances is to maintain control of his automobile. * * This Francis Fontenot did not do and his failure to maintain control is the sole and proximate cause of the accident. * * *
“Mr. Jones suffered a fractured skull, according to Dr. Guevara, the attending physician, in addition to a contusion of the nose, a lacerated eyelid and a whiplash type injury to the neck in the C-6 area. X-rays showed spurring which may have delayed recovery but pre-existed the accident. In the opinion of this Court, THIRTY-FIVE HUNDRED DOLLARS and No Cents ($3,500.00) for Plaintiff’s pain and suffering is both fair and equitable for this type injury.

The record supports the factual conclusions reached by the trial judge. Applying the jurisprudence on the doctrine of “sudden emergency”, we conclude that Fontenot, when faced with the U-turning automobile, reacted below the standard of care required for a reasonable driver under the circumstances. Accordingly, we conclude that defendant cannot avail himself of the doctrine of “sudden emergency”.

We further find no merit to defendant’s contention that the $3,500.00 general damage award is excessive. As pointed out by the trial judge, plaintiff suffered a fractured skull, laceration of the eyelid, contusion of the nose and injury to the left shoulder, resulting in a three-month disability.

We do find, however, as claimed by defendants, that the trial judge erred in awarding a $50.00 “appearance fee” to the investigating police officer. The testimony of this officer, who was accepted by the trial judge as an expert in accident investigation, consisted of a narrative based on statements of witnesses and on observations made by the officer at the scene of the accident. This officer’s testimony was no different from that of any other law enforcement officer investigating an accident. Under the circumstances, we conclude this witness is not entitled to be paid an expert witness fee taxed as costs. See our recent decision in Welton v. Falcon, 341 So.2d 564 (La.App. 4th Cir. 1976).

We are in agreement further with defendant’s contention that the-$100.00 expert witness fee awarded to the treating physician is excessive. In the course of the deposition taken at his office, the doctor indicated that a fee of $75.00 for his testimony would be reasonable. Under the circumstances, we conclude that a fee in an amount greater than the value set by the expert is excessive.

Accordingly, that part of the judgment awarding a $50.00 expert witness fee to the accident investigating police officer is reversed and set aside. That part of the judgment awarding the $100.00 expert witness fee to the treating physician is reduced to the sum of $75.00. In all other respects, the judgment is affirmed.

REVERSED IN PART; AMENDED IN PART; AND AS AMENDED, AFFIRMED.

LEMMON, Judge,

concurring and assigning reasons.

The validity of defendant’s contention that the driver of the U-turning Cadillac created a sudden emergency depends upon a determination of the time and distance available to defendant at the instant he should have observed that maneuver. The parties presented greatly conflicting evidence as to the factors bearing on this determination. For purposes of making this determination and of deciding the ultimate legal question as to the reasonableness of defendant’s conduct under the circumstances, the reviewing court must accept all of the record facts favorable to the prevailing party. I submit this concurring opinion to state some additional facts which I found persuasive.

Plaintiff testified: As he was driving in the inside lane, he came to a stop behind four or five cars which were behind the U-turning Cadillac (which plaintiff never saw). When “everybody started moving” (necessarily after the Cadillac commenced the U-turn), he started forward and slowly picked up speed, and at the time of the collision he had shifted his manual transmission down to third gear and had attained a speed of about 25 miles per hour. When he first saw defendant’s car, it was still 150 feet away and was already swerving and out of control.

The Cadillac’s quick U-turn should have been instantly obvious to defendant, who admitted that no traffic obstructed his vision. The time elapsing between the beginning of that maneuver and the collision was sufficient, according to plaintiff’s version related above, for the trial judge to reasonably conclude that the defendant could have easily avoided a collision with the Cadillac without losing control, if he had been maintaining proper lookout and proper control at the time the maneuver occurred.

Although there was other testimony from which one could conclude that defendant was faced with a sudden emergency, the testimony apparently found credible supports a conclusion that the situation was neither so sudden or so emergency in nature as to justify defendant’s unreasonable reaction to the situation.

      . Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972); Dean v. Travelers Insurance Company, 171 So.2d 708 (La.App. 4th Cir. 1965); Hunter v. American Employers Insurance Co., 153 So.2d 588 (La. App. 4th Cir. 1963), writ refused, 244 La. 1017, 156 So.2d 225 (1963).


author: LEMMON, Judge.

text:
    Succession of Leonora BANNON.
    No. 7769.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Bernard, Micholet & Cassisa, Peter L. Bernard, Jr., Metairie, for Mrs. Josie Mills, testamentary executrix-appellant.
    Donelon, Cannella & Donelon, Lawrence J. Fritz, Metairie, for Albert C. Fritz, Jacob C. Fritz, Jr., Robert J. Fritz, Elsie M. Kuchler, Theodore Ray, Mrs. Ethel Ray Neitschmann, Lawrence J. Fritz and Sister Margaret Flynn Scholastica, opponents-appellants.
    Wilmer Glauner Hinrichs, New Orleans, for Bethany Evangelical and Reformed Church, proponent-appellee.
    William J. Luscy, III, Metairie, for First Evangelical Church, proponent-appellee.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

The opponents to a proposed tableau of distribution and final account in this succession proceeding have appealed from a judgment dismissing their opposition after a hearing. On appeal the sole issue involves the interpretation of certain provisions of the will.

In the May 10, 1973 olographic will the testatrix first made particular legacies of specific amounts of cash to six individuals, a church and a charitable organization. Then she left to various individuals particular items of furniture, housewares, bed clothes, dinner service and jewelry, after which she stated in the next paragraph:

“The residue of my belongings, I leave to (three named individuals).” (Emphasis supplied)

She then expressed certain desires as to maintenance of her burial plot. In the following paragraph she provided “(a)ny money remaining I leave to” six individuals and one charitable organization, in specified amounts. The very next paragraph provided:

“Any residue of my estate is to be given to (the church named as a particular legatee and another church).” (Emphasis supplied)

She then mandated that her succession value not be published, left a brooch to a named individual, and (except for naming her attorney and signing the will) concluded:

If any money is left — add more to those mentioned.” (Emphasis supplied)

By codicil dated the same day she left other specified furniture to named persons.

The testatrix died on September 29, 1974 at the age of 85. Her bank box contained approximately $8,600.00 in cash. The remainder of the estate consisted of a bank checking account, two bank savings accounts, numerous homestead shares, a bank savings certificate, two U. S. savings bonds, and certain household effects.

The executrix interpreted the three above quoted paragraphs in the will as indicating the testatrix’s intention to divide her estate for purposes of disposition into three parts: Her personal belongings, her money (construed by the executrix as meaning cash), and all of her other property. Accordingly, the executrix proposed (1) to deliver each item of specified personal belongings in accordance with the itemized particular legacies of personal property and the remainder of the personal belongings to the legatees named in the first quoted paragraph; (2) to deliver the specified sums of cash (totaling $14,100.00) to all particular cash legatees, including those named in the paragraph regarding “(a)ny money remaining”; (3) to regard the third quoted paragraph as inapplicable, since there was no “money” left after payment of the particular cash legacies; and (4) to deliver the residue of the estate (after delivery of all personal belongings and of all cash legacies, and after payment of all debts and costs of administration) to the two churches named in the second quoted paragraph. Thus, the executrix proposed to interpret the second quoted paragraph as a universal legacy and to divide the residue of the estate equally between the two churches as universal legatees.

The opponents attacked this method of distribution, contending that the will contained three inconsistent dispositions (the three quoted paragraphs) and that since each of these three dispositions followed a series of particular legacies, each was an attempt to establish a universal legacy. Further arguing that C.C. art. 1723 provides in the event of contrary dispositions that the disposition written last is presumed to be the will of the testator, the opponents reasoned that the first two universal legacies were revoked by the third quoted paragraph and that the residue of “money . left” (construing “money” to mean the accounts and shares convertible to cash) should go to all particular legatees.

The trial court rejected this argument and dismissed the opposition. We affirm.

In interpreting wills, courts must principally endeavor to ascertain the intention of the testator, without departing from the proper signification of the will’s terms. C.C. art. 1712. When necessary, recourse may be had to all circumstances which may aid in the discovery of the testator’s intention. C.C. art. 1715.

The validity of opponents’ position depends upon the contention that the three quoted paragraphs constitute universal legacies and are therefore conflicting.

A universal legacy is a testamentary disposition, by which the testator gives to one or several persons the whole of the property which he leaves at his decease. C.C.art. 1606. The second quoted paragraph, construed by the executrix as the only disposition intended as a universal legacy, clearly can be reasonably construed as such, since “estate” means “the whole of one’s possessions”. American Heritage Dictionary of the English Language (1975). Thus, the central issue is whether the first and third quoted paragraphs are reasonably construed as universal legacies under the circumstances of this case.

The first quoted paragraph is more reasonably interpreted in this case as a particular legacy of the testatrix’s unspecified personal belongings. The word “belongings” means “personal possessions; effects”. American Heritage Dictionary of the English Language (1975). Furthermore, this disposition immediately follows the giving of numerous itemized personal effects and is more reasonably construed as a particular legacy of the remaining personal possessions or effects than as a universal legacy (although “residue of my belongings” arguably could be construed in another will under other circumstances as reasonably intended to establish a universal legacy).

The third quoted paragraph (relied upon by opponents as revoking the universal legacy in the second quoted paragraph) refers to any “money” left in the estate. “Money” means “official currency, coins and negotiable paper notes, issued by a government”, although it also means “assets and property that may be converted into actual currency”. American Heritage Dictionary of the English Language (1975). Significantly, in this case, the will makes sense in its entirety only if “money” is construed to mean currency, and the will should be construed so as to give effect to all its provisions if this can be done reasonably. Moreover, the circumstances of the large sum of money in the bank box, along with the testatrix’s attorney’s testimony that she had incurred substantial medical expenses during extended periods of hospitalization in her last two years, indicate that she could reasonably have intended to fulfill all cash legacies from the cash on hand and anticipated that the amount of cash on hand at the time of her death might exceed the amount of cash legacies.

We therefore deem it more reasonable to construe the third quoted paragraph referring to “money” as a particular legacy of the cash (if any) remaining after the other particular cash legacies are paid than as a universal legacy of all of the testatrix’s property other than her “belongings,” especially since the latter interpretation would render the second quoted paragraph completely meaningless.

Accordingly, we conclude that the third quoted paragraph was not a universal legacy and that under the most reasonable interpretation of the entire will, the executrix’s proposed distribution is in accordance with the testatrix’s intention. Indeed, construing the will as argued by the opponents would require a strained interpretation and would not give effect to all of the dispositions.

The judgment is affirmed.

Affirmed.

      . After judgment, the parties agreed as to resolution of several minor discrepancies in the proposed distribution and final account, and they have filed in this court an amended distribution and account agreed upon by all parties, except for the one issue at which this appeal is aimed.

      . C.C. art. 1625 defines a particular legacy as every legacy not included in the definition of universal legacies and legacies under a universal title (as defined in C.C. art. 1612).

      . In this regard we agree with the opponents’ argument that the third quoted paragraph is not indefinite or precatory. The decisive issue is whether it is reasonably construed as a universal legacy. In holding that it is not under the circumstances of this case, we distinguish this disposition (which applies only if any money is left) from the disposition in Succ. of Barnett, 245 So.2d 418 (La.App. 2nd Cir. 1971), which mandated “(i)f after everything is paid divide what’s left with Cicero and Lewis . .” The latter gives the universality of the testator’s property, if any property of any kind remains.


author: MORIAL, Judge.

text:
    Mona YARDUMIAN v. Clare BEALS.
    No. 7771.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Richard A. Thompson, New Orleans, for plaintiff-appellant.
    Nestor F. Mills, New Orleans, for defendant-appellee.
    Before REDMANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff sued defendant to recover the sum of $190.00 plus damages and attorney’s fees pursuant to LSA-R.S. 9:3251, et seq. The trial court dismissed plaintiff’s suit without reasons. We reverse.

On June 27,1973 plaintiff entered into an agreement to rent an apartment owned by defendant from month to month. At that time she paid defendant $190.00 for the first month’s rent commencing on July 15, 1973 through August 14, 1973. The agreement provided that if certain renovation work were not completed by July 15, 1973, defendant would return the month’s rent and the agreement to lease would be dissolved.

The issue concerning the completion date of the renovations is clouded by conflicting testimony. However, we find no basis in the record upon which to overturn the apparent factual determination of the trial judge that the renovations were completed by July 15, 1973. See Canter v. Koehring Company, 283 So.2d 716 (La.1973). Accordingly, at that time, the agreement to lease became executory and ripened into a lease for a month.

Sometime prior to July 15, 1973, plaintiff visited the apartment. She concluded that the renovations were incomplete and could not be accomplished by the deadline. Plaintiff unsuccessfully attempted to talk with defendant about rescission and plaintiff’s attorney wrote to defendant asking for rescission. On or about July 17 or 18 plaintiff apparently realized that defendant would not return the advance rent. At that time and in the presence of defendant, she attempted to sublease the apartment to two persons. Defendant refused to allow her to make such arrangements and leased the apartment to those persons for a $215.00 monthly rental.

The provisions of LSA-R.S. 9:3251, et seq., are inapplicable to the facts of this case. However, defendant did abrogate the lease agreement by refusing to allow the plaintiff to sublet the apartment.

LSA-R.C.C. Article 2725 gives a lessee the right to sublease where such right is not expressly interdicted. The lease agreement between the parties contained no such prohibition. Furthermore, a lessor has a duty to provide a lessee with peaceable possession of the thing leased. See LSA-R. C.C. Article 2692.

Defendant not only prevented the lessee from subletting the premises, she deprived lessee of peaceable possession when she released the premises on July 18, 1973 for a term which overlapped a substantial portion of the unexpired term for which the plaintiff had paid a rental and had the right to possession. Accordingly, the lessee was entitled to cancel the lease upon that occurrence. See Leake v. Hardie, 245 So.2d 729 (La.App. 4 Cir. 1971) and Young v. Eddy, 86 So.2d 243 (La.App. 1 Cir. 1956). Further, when the defendant relet the apartment for an unexpired part of the term of the lease, she had the obligation to credit the original lease with the funds collected from the new tenants. See D. H. Overmeyer Co., Inc. v. Blakely Floor Cover., Inc., 266 So.2d 925 (La.App. 4 Cir. 1972).

Plaintiff has a right to a refund of that portion of the rent for the twenty-eight (28) days in which she was deprived of peaceable possession during the thirty-one (31) day period for which she paid an advance rent of $190.00. See Grace v. Hass, 20 La.Ann. 73 (1868); D. H. Overmeyer Co., Inc. v. Blakely Floor Cover., Inc., supra. We compute this amount to be $171.12.

For the foregoing reasons the judgment of the First City Court of New Orleans is reversed and there is judgment herein in favor of the plaintiff, Mona Yardumian, and against the defendant Clare Beals, in the full sum of $171.12 together with legal interest from date of judicial demand until paid and for all costs of these proceedings.

REVERSED.