author: COVINGTON, Judge.

text:
    Mary Jane PHILLIPS v. Richard E. PHILLIPS.
    No. 10950.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Jack N. Rogers, Baton Rouge, for appel-lee.
    Paul T. Thompson, Baker, for appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is a suit brought in the form of a rule nisi by Mary Jane Phillips, the adult daughter of the defendant, Richard E. Phillips, to require him to pay her alimony for support in the amount of $300.00 per month.

The father filed various exceptions, including one alleging that the Family Court did not have jurisdiction ratione materiae and another alleging that the use of summary process was improper. The trial judge overruled all of the exceptions, heard the testimony and ordered the defendant to pay to his daughter “temporary alimony conforming to her present need in the sum of $75.00 per month.” The issue of the Court’s rulings on the exceptions was not raised on appeal. Furthermore, in view of our conclusion, we need not consider them.

The plaintiff, whose parents are divorced, is 22 years old. Her need for support arises because she is pursuing an education in accounting at Louisiana State University, leading shortly to a degree in that field. While attending college, she is employed part-time at Sears in the catalog department earning about $170.00 per month, which sum is not adequate for her needs. She is above the age of majority, in good health, and physically and mentally capable of gainful employment to support herself. The only reason that she is unable to work full-time is that she is attending college. The law does not support the order of the Court; therefore, we must reverse.

Appellant pays his wife and their two minor sons some alimony under an order of court. He has had little or no contact with his former wife and his children since 1970. He is employed at Ethyl Corporation as an engineering superintendent at a reasonably adequate salary and could easily assist his daughter in her pursuit of higher education if he wanted to do so. Mr. Phillips testified at the trial that he felt no sense of obligation to support his daughter and that he would not voluntarily help her. His position is re-affirmed in the appellant’s brief, wherein it is set forth that the defendant “is of sound mind and of sound body with an income capable of meeting the needs of his daughter, the appellee-respondent (the plaintiff-appellee). However, it is against his desires to do so.”

The appellant contends that a father has no obligation to educate his adult child. See LSA-C.C. arts. 227, 229, 230; Demarie v. Demarie, 295 So.2d 229, 231 (La.App. 3 Cir. 1974); Dubroc v. Dubroc, 284 So.2d 869, 870 (La.App. 4 Cir. 1973). The second sentence of Civil Code Article 230 makes it clear that education is included in the alimony required to be paid only when the person due the alimony is a minor.

In Demarie, a child over the age of 18 who was attending high school filed suit in his own behalf to obtain alimony. The adult child was in his final year of high school, currently unemployed and without funds. He was capable of gainful employment, and had earlier worked part-time. The Court, finding that the adult child’s need for support was based entirely on his need to get a high school education, denied alimony saying:

“The father is no longer required to provide for his eighteen year old son’s education since the son is now a major. C.C. art. 229 does not require parents to educate their adult children. They are bound to provide for needy descendants, just as these descendants are reciprocally bound to support their needy ascendants. Art. 229 cannot be used as an extension of the obligations owed under arts. 227 and 230, which terminate upon the child reaching the age of majority. To obtain support under art. 229, the descendant must show need. Gregory (the plaintiff) failed to establish that need. “The rights of majority have been granted to eighteen year olds. With these rights come the obligations of majority. Gregory has not shown his entitlement to support under art. 229 by the mere fact that he is in high school. The educational requirements of arts. 227 and 230 are not superimposed upon art. 229.
“Under other circumstances a high school student may show need under art. 229. Each case must be decided upon its own merits.' In order to meet the burden of proof required under art. 229 one must establish some need other than that for a high school diploma.”

In Dubroc, an 18 year old child who was a senior in high school was seeking alimony from her father. The adult child was living with her mother and stepfather, who furnished her with all of the necessities. She had no income of her own and was unemployed. She was in good health, and physically and mentally capable of working for a living. The Court held that a father was not obligated to support his adult child who was in high school but was capable of gainful employment, and said:

“Insofar as education alone is concerned, we must and do conclude that under our present law parents are under the obligation of educating only their minor children; when the children reach the age of majority that obligation no longer exists.”

Thus, we see the present state of the law on this question is that a child who has attained the age of eighteen has no right to obtain support from his parents in order to secure an education. See The Work of the Louisiana Appellate Courts for the 1973-1974 Term, 35 La.L.Rev. 259, 265 (1975).

Nevertheless, in an attempt to sustain the Family Court’s decision, the appellee contends that the present claim is not for “an education,” but for “assistance in meeting the totality of life’s expenses and obligations.” And, that “the fact that plaintiff is going to school should be considered part of her ‘necessities’ of life.”

This question was specifically dealt with in the Dubroc case, supra, wherein the Court concluded that a destitute high school student of the age of majority who was mentally and physically able to work for a living to secure for herself a means of support was not “in need” within the meaning of the codal articles.

In Dubroc the Court observed:

“As we understand Article 229, a person ‘in need’ is one who is unable to support himself either by gainful employment or because he does not have property or other means sufficient for that purpose. If the 18 year old person is capable of gainful employment, he is not in need. “Planiol gives us the clearest definition of ‘in need’ we have been able to find. In discussing Article 208 of the Code Napoleon, which is the same as our Civil Code Article 231, he states only two conditions are necessary in order to warrant granting of the alimony now under discussion:
‘(1) The creditor of the alimony must be in need, i. e. he must not be in a position to secure, by himself, some means of support.
(2)The debtor must be able to pay the alimony.’ 1 Pt. 1 Planiol, Traité Elem-entaire De Droit Civil, No. 674.” (Emphasis by the court).

In the instant case it is clear that the plaintiff is fully capable of supporting herself within the contemplation of the law. Therefore, she is not “in need” within the meaning of Civil Code Article 229. This decision is made based on the particular facts in the instant case, as suggested by appellee and supported by Vinet v. Vinet, 184 So.2d 33 (La.App. 4 Cir. 1966) and Chaisson v. Dominque, 175 So.2d 902 (La.App. 3 Cir. 1965). It appears to us that the argument for a part-time working college student to receive alimony from a parent is far weaker than the case for an unemployed high school student, who was denied alimony in Demarie and Dubroc, supra.

While we might be inclined to think a father worthy of the name will always generously support and encourage his child’s reasonable educational ambitions, the law wisely leaves his generosity as a matter between him and his own conscience. The law declines to force a parent to contribute to his adult child’s education or to give support to his adult child who is capable of self-support.

We need but add that this is not a case for invoking “equities,” as the plaintiff would have us do. This is not a Civil Code Article 21 situation; the law is not mute. On the contrary, it speaks trenchantly and in stentorian tones. Although it may say words that our ears wish not to hear, we must listen and heed.

Consequently, we reverse the judgment of the Family Court, dated February 17, 1976, which condemned the defendant to pay alimony to the plaintiff in the amount of $75.00 per month, and dismiss the plaintiffs suit. All costs are to be paid by the plaintiff-appellee.

REVERSED.


source: Caselaw Access Project

license: Public Domain

text:
    CENTRAL CREDIT CORPORATION, MID-CITY BRANCH, INC. v. Richard M. COCHRAN, Jr., et al.
    No. 10983.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    P. Michael Maneille, Lake Charles, for Larry A. Roach.
    Lawrence Roe Dodd, Baton Rouge, for Central Credit Corp., Mid-City Branch, Inc.
    Curtis K. Stafford, Jr., Baton Rouge, for R. M. Cochran.
    David M. Ellison, Jr., Baton Rouge, for Western Surety Co.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is a concursus proceeding invoked by Central Credit Corporation, Mid-City Branch, Inc., hereinafter called Central Credit.

On September 10, 1969, Central Credit issued a $5,000.00 “Subordinated Certificate of Indebtedness”, bearing No. 1002, to “Gene McFerrin or bearer”, payable August 15, 1974, bearing interest at the rate of 8% per annum payable semi-annually.

In the proceeding, Central Credit admitted its liability for the full amount of the debenture, deposited $5,600.00, representing the principal and accrued interest, in the registry of the court, and cited the four claimants to the proceeds to appear and assert their respective claims. Those claiming ownership or rights in and to the proceeds are: Larry A. Roach, the appellant, and Richard M. Cochran, Jr., Roland C. Kizer, Jr., and Western Surety Company, the appellees.

The claim of Larry A. Roach is based upon transfer of the debenture to him by the holder, McFerrin, as payment of attorney’s fees. The transfer took place in New Orleans on July 30, 1972, with McFerrin endorsing the debenture in the presence of witnesses. Upon receipt of the debenture, Roach placed it in his safe deposit box in Lake Charles.

The claims of Cochran, Kizer and Western Surety, the appellees, arise out of judgments obtained by them against McFerrin, on which they had sought execution by seizure and garnishment of the said debenture. The claims can be considered together, because the appellees stipulated in the trial court as to the division among them in the event they prevail in the suit, viz: $2,300.00 to Cochran, $1,500.00 to Western Surety Company, and $1,800.00 to Kizer, with each of them bearing one-third of the costs.

The trial court dismissed Roach’s claim and awarded the amount deposited, admittedly the total amount owed by Central, in accordance with the stipulation. Roach appealed suspensively. We affirm.

On the trial Roach testified that the transfer of the debenture was made to him in partial payment of his legal fees and expenses. Roach also testified that he did not notify Central Credit of the transfer, he did not collect any interest thereon, and he made no demand for payment to Central Credit. Roach explained that the legal services were rendered to McFerrin over a period of time. He kept no records of the time he devoted to work for McFerrin and no fee was ever agreed upon between the attorney and client. McFerrin testified that “I don’t think we talked about a legal fee,” but that Roach had rendered legal services to him. McFerrin responded to the question: “Did he (Roach) mention anything to you about a fee or needing some money or did you mention anything to him about something that you could give him for his time spent?” in this fashion: “I think the way the discussion was, that he (Roach) was running high in expenses and I had the certificate of deposit (debenture) from a finance company here in Baton Rouge that I endorsed and gave him to hold as his legal fee.”

From this testimony, after considering all of the evidence in the case, the trial court made the finding that “originally the understanding was that the arrangement was a security device not a transfer of ownership. This is further borne out by the failure to register the assignment and the absence of efforts to collect the accrued interest.” Further, appellant neither reported the debenture or interest on his income tax nor on his financial statement. A further insight into the character of the McFerrin-Roach association is gained from the fact that McFerrin, in financial difficulties which resulted in civil suits and criminal charges in at least two states, executed a dation en paiement to Roach affecting real property in Calcasieu Parish, but the latter did not file it for recordation until after the property was seized by a judgment creditor some five months later.

We agree with the finding of the trial court that there was no negotiation of the debenture to Roach, but rather that McFer-rin gave it to Roach to hold for the former. The evidence is sufficient to support the factual findings of the trial court, based on its evaluation of the credibility of the witnesses and reasonable inferences drawn from the evidence; Rayner v. Rayner, 216 La. 1099, 45 So.2d 637 (1950); Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973).

For the foregoing reasons, the judgment of the trial court is affirmed. The appellant is cast for the costs on appeal.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Alfred HARRIS v. DREXLER MOTOR CO., INC.
    No. 10957.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Ralph D. Hillman, Thibodaux, for plaintiff and appellant.
    Robert D. Morvant, Thibodaux, for defendant and appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit seeking the avoidance of the sale of an automobile because of a redhibi-tory defect which occurred in the said vehicle. The Trial Court rendered judgment in favor of the defendant and dismissed plaintiff’s claim, and plaintiff has perfected this appeal.

The defendant has been the sole Ford dealer in the City of Thibodaux for many years. In connection with his Ford agency, the defendant sells used cars which are taken in as trade-ins.

On July 19, 1974, plaintiff and his wife went to defendant’s place of business for the purpose of purchasing a used automobile. After examining several automobiles, they purchased a 1967 automobile for the sum of $695.00.

Plaintiff testified that following the purchase he drove the car off the defendant’s parking lot and experienced no trouble or problems with the car until the night of August 2, 1974. Between the time of the sale and the time when the alleged trouble occurred, plaintiff had driven the automobile a distance of 734 miles, of which some portion was in the city and the other was on the highway. While driving the car on the evening of August 2, 1974 along the Hou-ma-Thibodaux Highway, a fire started under the hood which resulted in extensive damage to the engine rendering the car a total loss. This suit was brought to rescind the sale alleging a breach of warranty and, in the alternative, redhibitory vices. In a well reasoned opinion, the Trial Judge held that the plaintiff had failed to sustain its burden of proof and, accordingly, dismissed the suit.

With regards to the breach of warranty, the evidence discloses that it is the policy of the defendant, in selling cars of such a low value, that the sale be made without warranty. The testimony of the sales manager, the salesman and plaintiff’s wife, as well as the exhibits filed in the record disclose without question that such was the ease in the sale to plaintiff. He was not only told verbally that the sale was made without warranty, but he signed an agreement to the effect that the sale was without guarantee or warranty. We, therefore, feel that the Trial Court was correct in holding that there was no guarantee or warranty.

Redhibition is defined in Article 2520 of the Louisiana Civil Code as follows:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use is so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

Article 2530 of the Civil Code places the burden of proving that the defect existed before the sale on the purchaser, unless the defect appears within a three day period of the sale, to wit:

“The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

Although it is not necessary for the purchaser to prove the particular and underlying cause of the defect in a complicated piece of machinery, it is nevertheless, necessary that he prove that the defect existed prior to the time of the sale. Guillory v. Morein Motor Company, Inc., 322 So.2d 375 (La.App. 3rd Cir. 1975).

Once the three day presumptive period provided by LSA-C.C. art. 2530 has expired, the plaintiff has the burden of proving both the existence of the redhibito-ry defect and that it existed at the time of the sale. Margan v. Precision Motors, Inc., 317 So.2d 664 (La.App. 4th Cir. 1975).

The evidence clearly shows that after the automobile was purchased on the 19th day of July it ran well, without any trouble whatsoever, until August 2 when the trouble occurred. This was a period of 13 days. Plaintiff testified that he drove the car both in the city and on the highway a total of 734 miles before the fire occurred. Between the time of the purchase and the time of the fire, he purchased gas at a local service station on several occasions at which time the usual checks under the hood were made. Both experts who testified in this case were of the opinion that the fire was not an electrical one but was a gasoline fire which originated in or around the carburetor of the automobile.

In summarizing the evidence presented on the question of redhibition, the Trial Judge said:

“Plaintiff produced as his expert Mr. Henry Eschete who operates his own repair shop in Thibodaux. Mr. Eschete testified that his examination and inspection of the automobile was limited to a visual inspection under the hood. He testified that he did not take the carburetor or any part of the engine down to examine the parts inside to see if they were worn or defective. He also admitted on cross-examination that had this been done he would be in a position to give a more definite conclusion as to the cause of the fire. Mr. Eschete testified that the cause of the fire had to be either a defective needle-valve in the carburetor or a defective accelerator pump or a defective timing chain or a dirty air filter. On cross-examination Mr. Eschete admitted that trash in the gasoline was also a factor that could be considered. Mr. Eschete testified that he could not say which of the above was the actual cause of the fire since he did not take the carburetor or engine apart to examine each individual part. Mr. Eschete was of the opinion that the fire originated as a result of worn or defective parts in the 4 first above mentioned components of the engine. He further concluded that since the fire did take place these parts had to be either worn or defective at the time the sale took place.
“Defendant produced as its expert Mr. Elbert Gaudet. Mr. Gaudet has been in the automobile repair business for over 30 years and for a number of years has been shop foreman at Autohome Buick Garage in Thibodaux, Louisiana. Mr. Gaudet testified that from his experience over the years the most common cause of fire originating under the hood of an automobile is either electrical or gasoline. In this case he eliminated an electrical fire because the main damage was confined to the carburetor and air filter under the hood. Mr. Gaudet further testified that in his experience the most common cause of gasoline fires in both used and new cars is trash in the gasoline working its way into the carburetor and causing the needle-valve to become stuck in an open position and allowing gasoline to continue to flow into the carburetor and eventually overflowing unto the hot engine. Mr. Gaudet was of the opinion that the fire was a result of an excessive amount of gas going into the carburetor and eventually overflowing unto the hot engine. Mr. Gaudet was of the opinion that a worn needle-valve in the carburetor would not be the cause of the fire. He stated that even if the needle-valve was worn and not seating completely there would still be sufficient closure to prevent an excessive amount of gas from entering the carburetor and eventually overflowing unto the engine, especially while the automobile was running. He was also of the opinion that the fire was not caused by a worn or defective accelerator pump in the carburetor. He stated that the purpose of the accelerator pump is to pump gasoline from the line to the carburetor. If the pump is not working no gasoline will enter the carburetor and hence no fire. He was also of the opinion that a dirty air filter was not the cause of the fire. He was of the opinion that a dirty air filter would smother a fire originating in the carburetor. He was also of the opinion that should the timing chain jump or be defective this likewise would not cause a fire but on the contrary would cause the engine to stop running. Mr. Gaudet’s opinion, like that of Mr. Eschete’s, is based on past experience as their examination of the car was limited to visual inspection under the hood. Mr. Gaudet’s opinion that the fire originated as a result of trash lodging between the needle-valve was based on 2 premises. The first being that in his experience this is the most common cause of fire in a carburetor. The second being that if at the time of the sale there was a defective needle-valve or a defective accelerator pump or a dirty air filter or a worn or defective timing chain Mr. Harris would have become aware of this before he drove the automobile 734 miles. Mr. Gaudet was of the opinion that if these parts were worn or defective the engine would not have run properly and that Mr. Harris would have experienced the engine running rough or the engine stopping on him at intersections or flooding.
“Based on the testimony and evidence presented, including the testimony of Mr. Harris that during the period of time that he drove this automobile 734 miles it operated smoothly and satisfactory and that he experienced no problems with it, the Court is more impressed with Mr. Gaudet’s opinion or version as to how the fire originated. Being of the opinion that plaintiff has not carried the burden of proving that a defect existed in the engine of the car at the time of the sale on July 19, 1974 judgment will be entered for defendant.”

We agree that the plaintiff has failed to show by a preponderance of the evidence that the defect, if there was one, existed in the automobile prior to the time of the sale.

Therefore, for the above and foregoing reasons, the Judgment of the Trial Court is affirmed. All costs of this appeal to be paid by plaintiff-appellant.

AFFIRMED.


author: ELLIS, Judge.

text:
    Dr. L. L. LANDON et al. v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al.
    No. 10941.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.
    Maurice LeGardeur and Marion B. Farmer, Covington, for plaintiffs-appellees.
    Tom Waterman and Tom H. Matheny, Hammond, for defendants-appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

Mrs. Joyce Landon suffered a neck injury in an automobile accident which happened on May 29, 1972. This suit was filed for damages arising therefrom by Mrs. Landon and her husband, Dr. L. L. Landon. Defendants are George D. Mattix, George D. Mattix, Inc., Willie Coleman and Hartford Accident & Indemnity Company. At the trial, defendants stipulated liability, and the matter was tried on quantum only. An award of $12,500.00 was made to Mrs. Landon in the final judgment, and defendants have appealed, contending that the award is excessive. Plaintiffs have answered the appeal, asking for an increase.

The accident happened when Willie Coleman, driving a pick-up truck belonging to Mattix, backed into Mrs. Landon’s car, which was stopped behind him. Mrs. Landon’s head was thrown forward by the force of the impact.

Mrs. Landon consulted Dr. Roy Montalba-no, a family practitioner, on June 21, 1972. He found objective paravertebral muscle spasm in the neck, more to the left side, and tightness of the sternocleidomastoid muscle. He prescribed a muscle relaxant, the application of moist heat to the neck three times daily, and gave her Panalgesic to rub on her neck after each application of heat. Dr. Montalbano continued to treat Mrs. Landon conservatively through July and August, without any noticeable improvement in her condition. X-rays of her neck showed “localized chronic degenerative joint and disc disease at C6-C7 level”. There was also a bone'spur at the C5-C6 level possibly encroaching on a nerve. Dr. Montalbano saw Mrs. Landon eight times between September 8,1972, and January 8, 1975, and on each occasion found the same symptoms and complaints.

On September 18, 1972, Mrs. Landon saw Dr. Raeburn C. Llewellyn, a neurologist. Dr. Llewellyn made the same physical findings as did Dr. Montalbano. He felt that the conditions revealed by the X-rays were due to normal wear and tear, and to maturity. He was of the opinion that Mrs. Landon was suffering a painful condition in her neck of a mechanical type, and some irritation or compression of the nerve supplying the left forearm area.

He felt she needed more rigorous conservative treatment, and Mrs. Landon entered East Jefferson Hospital on October 2, 1972. She was treated with muscle relaxants, traction, heat and massage, and was discharged on October 13, 1972. Dr. Llewellyn continued to follow Mrs. Landon until February, 1974, during which time she was continuing her therapy at home. He was of the opinion that Mrs. Landon had achieved about 90 per cent recovery, and that she could avoid soreness by restricting or not doing about ten per cent of her normal day to day activities. He felt that this was the best she could hope for and that it would continue for life. He also felt that she had learned to live with her problem.

Dr. Daniel S. Sinclair, an orthopedist, examined Mrs. Landon on March 19, 1973. He was of the opinion that she had suffered an acute cervical sprain, and that there was possible disc involvement. He felt that conservative treatment was appropriate in her case, and that her symptoms had continued for a longer than usual period of time.

Dr. Russell C. Grunsten, an orthopedist, examined Mrs. Landon in July, 1974. He testified that his examination found her neck to be essentially normal. He also testified that the kind of accident in which she was involved was not likely to produce the type of injury of which she complained.

Dr. Harry F. Leveque, a dentist, removed a cracked left second molar from Mrs. Landon’s mouth in July, 1972. He attributed the crack in the tooth, which necessitated the removal, to the accident.

At the trial of the case, which took place in January, 1975, Mrs. Landon testified relative to the extent to which she had been forced to restrict her activities. She stated that she cannot lift things, and can do nothing that requires bending forward. She is restricted in her ability to push, scrub and carry things. She is no longer able to do things such as gardening, playing tennis, swimming and skiing, all of which she did extensively prior to the accident.

Defendants contend that Mrs. Landon suffered only a “mild” whiplash injury, and that the trial judge erred in classifying the injury as “moderately severe”. They claim that Mrs. Landon suffered only minor pain and inconvenience.

The trial judge found that Mrs. Landon suffered “considerable pain and suffering which has extended up to the time of the trial”, and that she “suffered a considerable restriction in her activities as a result of this accident.” There is sufficient evidence in the record to support these conclusions, and in view of the likelihood that Mrs. Landon’s condition will continue for life, we do not believe the award of $12,-500.00 for pain and suffering to be excessive. We find it to be well within the limits of the broad discretion accorded to trial judges in fixing awards.

The judgment appealed from is therefore affirmed at defendants’ cost.

AFFIRMED.


author: ELLIS, Judge:

text:
    Russell ROMANO v. Alcus DAVIS et al.
    No. 10965.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Donald H. Lee, of Seal, Lee, Branch & Brown, Bogalusa, for plaintiff.

      Michael J. Paduda, Jr., of Gallaspy & Paduda, Bogalusa, for defendants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit for workmen’s compensation benefits, penalties and attorney’s fees brought by Russell Romano against Alcus Davis, Construction and Developers, Inc., his employer, and U. S. Fidelity and Guaranty Insurance Company, its workmen’s compensation insurer. After trial on the merits, judgment was rendered in favor of plaintiff and against Construction and Developers, Inc. and U. S. Fidelity and Guaranty Company, awarding him benefits for permanent and total disability, but refusing penalties and attorney’s fees. From that judgment, the defendants cast have appealed, and plaintiff has answered the appeal, seeking penalties and attorney’s fees.

Plaintiff injured his back in the course and scope of his employment on March 10, 1972. He saw Dr. Edgar J. Feinberg on March 13, 1972, and received physiotherapy treatments until April 14, 1972. Dr. Fein-berg then referred plaintiff to Dr. Donald Richardson, a neurosurgeon. Dr. Richardson sent plaintiff to the Veteran’s Administration Hospital in New Orleans, where he was admitted on May 2, 1972.

On May 5, 1972, a left interlamellar removal of the L4-L5 disc, and a foraminoto-my at that level were performed. Plaintiff was discharged from the hospital on June 17,1972, and was seen at intervals thereafter at the Veterans Administration Hospital Clinic until June 6, 1973, when he was discharged to return to full activity.

Compensation payments, which had been paid in full until that time, were then discontinued by defendants.

Plaintiff then attempted to return to his trade as a bricklayer. He found that he could lay ordinary brick and small concrete blocks without any loss of efficiency, although he was forced to kneel to lay the lower courses. He testified that he needed additional help on some jobs; that he no longer took veneer work, because the preparation was too difficult, and that he was not able to work with the heavier eight-inch and twelve-inch blocks. He did, however, manage to find work fairly steadily from the time of his discharge until the time of trial. He further stated that his back would become sore from working, but apparently the pain is not such as to be disabling.

On November 7, 1973, at the behest of the defendant insurers, plaintiff was examined by Dr. Richard Levy, a neurosurgeon. Dr. Levy found no neurologic disability, but was of the opinion that plaintiff could not resume his employment as a bricklayer because of the orthopedic disability resulting from his back surgery. He estimated a five to ten per cent disability of the entire body, and recommended that plaintiff be treated by an orthopedist.

On April 5, 1974, plaintiff saw Dr. Daniel Sterling Sinclair, an orthopedic surgeon. Dr. Sinclair was of the opinion that he could lay ordinary bricks, but could not handle the heavier concrete blocks. He estimated a ten per cent disability of the entire body. After a subsequent examination on March 17, 1975, he found plaintiff’s condition essentially unchanged.

Defendants offered some testimony to the effect that less than seven per cent of the buildings built in the Bogalusa area in 1972 involved the use of concrete blocks and that in 1971 three per cent of the construction jobs involved use of concrete blocks.

In this court, defendants argue that the laying of concrete blocks is not a substantial part of the work of a bricklayer in the Bogalusa area, and that plaintiff cannot be considered disabled under the law, because he is unable to lay the larger blocks. They also claim that the trial court erred in finding that plaintiff was unable to work as a bricklayer without difficulty.

The medical opinion in this case is unanimous that plaintiff has a permanent ten per cent disability of his body, and that he is thereby restricted in what he can do. In addition, the trial judge accepted Mr. Romano’s testimony as to what he can and cannot do, and his conclusion in this respect is fully supported by the record.

In determining whether plaintiff is permanently and totally disabled under the law, we must consider not only his physical condition, and what work he can actually perform, but also his ability to compete with able bodied men in the labor market. If he is unable to perform substantial parts of the duties of his employment and is thereby placed in a disadvantageous competitive position in the labor market, the courts will find him to be permanently and totally disabled. Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271 (La.1973).

Applying this test, the trial court found plaintiff to be permanently and totally disabled under the law, and we find no manifest error in this determination. Plaintiff’s difficulties go beyond his inability to lay heavy concrete blocks, since he does not do veneer work and must employ extra help on occasion, in addition to having to work in pain, albeit not of a disabling nature.

Plaintiff has answered the appeal, asking for penalties and attorney’s fees, and for certain travelling expenses.

Defendants discontinued compensation payments when plaintiff was pronounced able to return to work at the Veterans Administration Hospital. The record shows that plaintiff has been working since that time. His ability to work as a brick mason is the major issue presented in this case, and there was a substantial dispute on the point. Under those circumstances, we do not believe defendants to have been arbitrary and capricious in discontinuing payments or in not resuming them when plaintiff’s mechanical disability was made known to them. Plaintiff is therefore not entitled to penalties and attorney’s fees.

Plaintiff also asks that he be granted travelling expenses for his trips to see the various doctors who have treated or examined him. Although it is proven that he made these trips, plaintiff has failed to prove how they were made or what expense was occasioned thereby. He has not borne his burden of proving these expenses, and we can make no award for them. Southall v. Kingsville Timber Co., 168 So.2d 424 (La. App.3rd Cir. 1964).

The judgment appealed from is affirmed, at defendants’ cost.

AFFIRMED.


text:
    Bernice Whitaker LEWIS v. Alphonse LEWIS, Sr.
    No. 10972.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Leo J. Berggreen, Baton Rouge, of counsel, for Bernice Whitaker Lewis.
    Hamilton B. Willis, St. Francisville, of counsel, for Alphonse Lewis, Sr.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit for separation from bed and board by Bernice Whitaker Lewis against Alphonse Lewis, Sr. The grounds alleged for the separation are cruel treatment and intentional nonsupport. To the petition, defendant filed an exception of improper venue, an exception of res judicata, and an answer. By stipulation, all matters were referred to the merits, and a trial was held, after which judgment was rendered maintaining both exceptions and dismissing plaintiff’s suit with prejudice on the merits. From this judgment, plaintiff has appealed.-

The matrimonial domicile of the parties and the domicile of Mr. Lewis is St. Fran-cisville in West Feliciana Parish. After an altercation on September 22, 1975, Mrs. Lewis left their home, took up residence elsewhere in West Feliciana Parish, and filed suit for a separation from bed and board. Mr. Lewis reconvened for a separation. After trial on the merits, which was held on November 6, 1975, judgment was rendered finding “that there is mutual fault”, and dismissing both the main and reconventional demands with prejudice.

Shortly thereafter, Mrs. Lewis moved to East Baton Rouge Parish, where she made her home with her sister. This suit was filed in the Family Court of East Baton Rouge Parish on January 5, 1976.

The exception of improper venue is based on the provisions of Article 3941 of the Code of Civil Procedure:

“An action for an annulment of marriage, for a separation from bed and board, or for a divorce shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile. “The venue provided in this article may not be waived, and a judgment rendered in any of these actions by a court of improper venue is an absolute nullity.”

Defendant alleges that Mrs. Lewis can have no domicile other than that of her husband, under Article 39 of the Civil Code which provides, in part:

“A married woman has no other domicile than that of her husband; . . . ”

The courts have provided an exception to that rule: that a wife may acquire a domicile separate from that of her husband if she has been abandoned by him or if he has been guilty of conduct substantially equivalent to that which would constitute grounds for a separation, and which would therefore justify her leaving him. Berry v. Berry, 310 So.2d 626 (La.1976). The grounds alleged in this case for a separation for cruel treatment are the same grounds alleged in the West Feliciana suit, which were found insufficient under the doctrine of recrimination or mutual fault.

Since the doctrine that mutual and equal fault on the part of the parties to a separation proceeding operates as a bar to relief being given to either of them, Mr. Lewis’s conduct can not constitute grounds for a separation. Mrs. Lewis may not, therefore, establish a separate domicile from that of her husband, and the only proper venue for a separation suit between them is West Feliciana Parish.

We might add that the other ground alleged for the separation in this suit, willful non-support, arose subsequent to the judgment in the first suit, and therefore was not a cause of the separation. The evidence adduced showed the allegation of willful non-support to be without merit.

The judgment appealed from is therefore affirmed, insofar as it maintains the exception of improper venue, and plaintiff’s suit is dismissed at her cost.

AFFIRMED.


text:
    Terrance J. MAURER et al. v. Octave CABALLERO et al.
    No. 10981.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.
    Writ Refused Feb. 18, 1977.
    Jerald P. Block, Thibodaux, for plaintiff appellee.
    John J. Hainkel, Jr., New Orleans, for defendant appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a suit for damages arising out of an automobile-tractor collision which took place in Bertrandville, Louisiana, on November 8,1970. The vehicles involved were an automobile owned by Gayle Breaux and operated by Terrance J. Maurer, and a farm tractor, owned by Octave Caballero and Nolan Guillot, and operated by Theodore Bird. Ann Breaux Maurer was riding as a guest passenger with her husband. Plaintiffs are Mr. Maurer, Mrs. Maurer and Miss Breaux. Defendants are Mr. Caballero, Mr. Guillot, Mr. Bird and Southern Farm Bureau Casualty Company, their insurer. Defendants allege the primary and contributory negligence of Mr. Maurer, and by third party demand, ask for contribution from him in the event they be found liable.

After trial on the merits, judgment was rendered in favor of Mr. Maurer for $200.00, Mrs. Maurer for $3,000.00 and Miss Breaux for $1,025.00 against Theodore Bird and Southern Farm and those defendants have appealed. The suit was dismissed as to Mr. Caballero and Mr. Guillot, and the judgment has become final as to them. In this court, defendants concede the negligence of Mr. Bird, but ask that we find Mr. Maurer negligent and liable to them for contribution under the third party demand.

The accident happened in Bertrandville, an unincorporated village on Louisiana Highway 1, which at that point runs approximately north and south. Highway 1 is a blacktop road, with a paved surface 24 feet wide, and shell shoulders 12 to 13 feet wide. The only relevant traffic control at the site of the accident was a yellow line painted on the highway beginning about 75 feet south of the point of the collision, indicating a no passing zone for northbound traffic on Highway 1. The record indicates that the line had been painted less than a month before the accident, and color photographs taken at the time of the accident show it to be clearly visible.

The accident happened when Theodore Bird, who had been driving a farm tractor, towing a small trailer, in a northerly direction on Highway 1, began a left turn off the highway and hit the Maurer vehicle which was attempting to pass him. Mr. Maurer testified that he pulled out to pass about 95 feet south of the point of impact and that he did not see the yellow line or any indication that Mr. Bird was about to turn left. Mr. Bird testified that he sig-nalled with his arm for a left turn.

R.S. 32:77 provides:

“A. The Department is hereby authorized to determine those portions of any highway where overtaking and passing or driving to the left of the roadway would be especially hazardous, and shall by appropriate signs or markings on the roadway indicate the beginning and end of such zones, and when such signs and markings are in place and are clearly visible to an ordinary observant person, every driver shall obey the directions thereof.
“B. Where signs or markings are in place to define a no-passing zone as set forth in paragraph A, no driver shall at any time drive on the left side of the roadway within such zone, or on the left side of any pavement striping, designated to mark such no-passing zone, throughout its length.”

We think that Mr. Maurer was clearly in violation of this statute. The photographs show that the yellow no passing line is clearly discernible to a motorist approaching it from the south. If Mr. Maurer failed to observe the line, he was negligent in failing to see what he should have seen, and in attempting to pass in a no-passing zone. The hazard which he created was clearly the one which the above quoted statute was designed to prevent. The no-passing zone was obviously designed to prevent passing in the congested Ber-trandville area.

Defendants also complain that the awards made to Miss Breaux and Mrs. Maurer were excessive. Miss Breaux’s automobile, a 1965 Comet, which was a total loss, had been purchased in November, 1969, for $1,200.00. It had an N.A.D.A. value of $1,025.00, which was the amount awarded her by the trial judge. We find no error in this determination.

Relative to the award to Mrs. Maurer, the trial judge said:

“The plaintiff, Mrs. Ann Breaux Maurer, who was four months pregnant at the time of the accident suffered personal injuries therefrom. She was seen and treated by Dr. N. A. Cox of Napoleon-ville, Louisiana, on some six occasions. Treatment consisted of diathermy and physio-therapy. Sedatives and anti-spas-matic drugs were prescribed. A normal healthy baby was Born in due time. Upon the trial, Dr. Cox testified that in his opinion the plaintiff, Ann Maurer, had suffered a moderate, as distinguished from mild or severe, sprain of the lower back. Because she was pregnant no x-rays were taken until after the birth of the baby. The patient was disabled and suffered from shock and pain for approximately six weeks after the accident and from anxiety until the baby was born. The Court is of the opinion that she will be compensated by an award of $3,000.00.”

There is evidence in the record to substantiate the factual findings of the trial judge, and we find the award to be within the broad limits of his discretion in matters of this kind.

Accordingly, there will be judgment herein in favor of Ann Breaux Maurer and Gayle Breaux, affirming the judgment rendered below, against Theodore Bird and Southern Farm Bureau Casualty Company. There will be judgment in favor of Theodore Bird and Southern Farm Bureau Casualty Company, and against Terrance J. Maurer, reversing the judgment rendered in favor of Mr. Maurer, and dismissing his suit as to said defendants. There will be judgment in favor of Theodore Bird and Southern Farm Bureau Casualty Company and against Terrance J. Maurer on the third party demand, for one-half of the judgment rendered herein in favor of Ann Breaux Maurer and Gayle Breaux. All costs in the court below shall be borne equally by defendants and Terrance J. Maurer. All costs of this appeal shall be borne by Terrance J. Maurer.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.


text:
    DIXIE ELECTRIC MEMBERSHIP CORPORATION v. Eugene DAVIS.
    No. 10989.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      James E. Kuhn, Denham Springs, for plaintiff.
    Raymond Bennett, Denham Springs, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is an expropriation case, in which plaintiff, Dixie Electric Membership Corporation is seeking a servitude for an electric transmission line, 100 feet in width, across the property of Eugene Davis. After trial on the merits, a judgment of expropriation was rendered, and defendant was awarded $7,266.40 for the part taken and $5,129.00 as severance damages to the remainder of the property. In addition, an expert witness fee of $825.00 was fixed for James Carpenter, who testified for defendant, and taxed as costs. Plaintiff has appealed, complaining that the judgment is erroneous in all of the above aspects, and that defendant should be taxed with the court costs.

Mr. Davis is the owner of a tract of land containing about 39 acres of land. The tract measures approximately 640 feet in width, running east and west, and about 2650 feet in length running north and south. It is divided into two parcels by State Highway 1025, a blacktop road which crosses the property in a northeasterly-southwesterly direction, leaving about 60% of the property south of the highway and about 40% north thereof. A two-acre parcel has been sold out of the southeast corner of the northerly parcel. A Gulf States Utilities servitude for a power line, 170 feet in width, crosses the entire property from north to south, the centerline of which enters the property about 187 feet from the northeast corner, and exits therefrom about 265 feet from the southeast corner.

Plaintiff herein has taken a servitude over a 100-foot strip which adjoins the Gulf States servitude on the west side thereof. For purposes of this suit the part taken is in two parcels, Tract No. 11, containing 2.69 acres lying north of the highway, and Tract No. 12, containing 3.17 acres lying south of the highway.

Mr. Davis’s home, a frame house, lies facing the highway on the south side thereof. One corner of the house is situated five feet from the westerly line of Parcel No. 12. Some fencing and a small shed lie within the limits of the servitude. There are no improvements lying north of the highway. There is a remainder of 7.4 acres west of Tract No. 11, north of the highway, and a remainder of 5.7 acres west of Tract No. 12 south of the highway. Mr. Davis’s home is on the 5.7 acre parcel.

Two experts testified, one for each side of the case. Mr. Oren Russell, testifying for the plaintiff, was of the opinion that the property had a value of $1,250.00 per acre, and that 80% of that amount should be awarded for the servitude taken. He estimated an award of $2,690.00 for Tract 11 and of $3,170.00 for Tract 12, or a total of $5,860.00. He was of the opinion that there were no severance damages to either the house or the two remainders as a result of the taking.

Mr. James Carpenter, who testified for defendant, was of the opinion that the property had a value of $1,717.00 per acre, and that 100% of that amount should be awarded for the servitude taken. This works out to an award of $4,618.73 for Tract 11, and of $5,442.89 for Tract 12. Mr. Carpenter testified that the remainders were damaged to the extent of 80% of their value for the first 100 feet adjoining the servitude taken and 10% of their value for that part lying more than 100 feet from the servitude. In addition, he felt that the house had been damaged to the extent of 50% of its value because of the proximity of the right of way. These damages were testified to be $2,670.00 for the house, $4,784.00 for the southerly remainder and $5,764.00 for the northerly remainder, or a total of $13,218.00.

Both appraisers used the comparable sales method of arriving at their estimates. However, Mr. Russell used tracts comparable in size to the entire tract, including the Gulf States servitude. Mr. Carpenter used tracts comparable in size to that part of the property lying west of the Gulf States servitude. He was of the opinion that the Gulf States servitude had divided the original tract into two parcels. Both experts testified that it is generally true that smaller parcels have a higher unit value than larger tracts of similar land, and it is apparently this difference of approach which brought about the discrepancy in the opinions of the experts.

The trial judge awarded $7,266.40, which works out to be 80% of a per acre value of $1,550.00. Since no written reasons for judgment were rendered, we do not know how he arrived at this figure. However, considering all of the testimony, we cannot say that his conclusion is manifestly erroneous, or that the award made does not lie within the broad range of discretion accorded to trial judges in matters of this kind.

With respect to severance damages, neither expert used the “before and after” method which is generally considered to be the most acceptable technique for determining if severance damages are due. Mr. Russell testified that, in his experience, the proximity of an electric transmission line did not affect the value of adjacent property. Mr. Carpenter did not agree, and felt that the proximity of the line did, indeed, make the remainder less desirable, more difficult to sell, and therefore less valuable.

The trial judge awarded $5,129.00 as severance damages, without assigning reasons. Apparently, he was of the opinion that some severance damages were due, although not as great as those estimated by Mr. Carpenter. Once again, we find no manifest error or abuse of discretion in his conclusion.

Plaintiff’s complaint that the award of an expert witness fee of $850.00 to Mr. Carpenter is excessive is likewise without merit. Mr. Carpenter testified at one point that he spent 56 hours in preparation of this appraisal and two days in court. There is, therefore, substantial evidence in the record on which the trial judge could base that conclusion, and we find no manifest error therein.

Plaintiffs final specification of error is that, since it negotiated in good faith with defendant before filing this suit, it should not have to pay court costs. Since the award made by the trial court, and affirmed herein, is substantially in excess of the offer made by plaintiff prior to suit, we see no reason why defendant should bear the costs.

For the foregoing reasons, the judgment appealed from is affirmed, at plaintiff’s cost.

AFFIRMED.


author: CHIASSON, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. BATON ROUGE REALTY COMPANY, LTD., Defendant-Appellee.
    No. 10963.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.

      Jerry F. Davis, Johnnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    Robert C. Taylor, Carey J. Guglielmo, Baton Rouge, for defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

The Department of Highways, plaintiff-appellant, expropriated under La.R.S. 48:441 et seq. 7.201 acres in full ownership and 0.190 acres as a temporary construction servitude from a tract which contained 29.-934 acres. This tract, owned by Baton Rouge Realty Company, Ltd., defendant-ap-pellee/appellant, was located on the northeast corner of the intersection of Airline Highway and Greenwell Springs Road.

After a trial on the merits the District Court awarded Baton Rouge Realty $203,-000.00 as the market value of the property taken and $56,964.00 as severance damages. The Highway Department has appealed this judgment contending that the District Court erred in awarding severance damages. Baton Rouge Realty has answered this appeal arguing that the award of the District Court for the land taken and for severance damages should be increased.

The District Court based its award of the market value of the property expropriated on the testimony of Darrel V. Willet, one of the five appraisers who testified at the trial. In making his appraisal Mr. Willet divided the entire property into five use tracts and estimated the market value of each tract based on its highest and best use. A front foot method was used to estimate the value of the commercial use tracts. From these figures the average unit value of each commercial use tract was determined. The average unit value of each tract was then used to determine the value of the portion of each tract expropriated. This method was approved by the Louisiana Supreme Court in State, Through Department Of Highways v. Hoyt, La., 284 So.2d 763 (1973).

The inclusion of that portion of the tract which fronted on Greenwell Springs Road from 300 to 500 feet from Airline Highway in the rear Airline Highway frontage use tract was consistent with the method applied by Mr. Willet throughout his evaluation. Therefore, the District Court’s acceptance of this evaluation cannot be said to be manifestly erroneous.

The District Court’s award for severance damages was based on the testimony of Verdie Reece Perkins who testified on behalf of Baton Rouge. Realty. Of the $56,-946.00 awarded as severance damages $41,-415.00 were for damages to the remainder of the commercial property and $15,531.00 were for damages to the remainder of the residential property.

It was Mr. Perkins’ opinion that the remainder of the commercial property has lost one-third of its value because of the expropriation. In the absence of other testimony affording a basis for determining severance damages, the Highway Department’s experts all testified that there were no severance damages, the Court can accept the judgment of the landowner’s expert appraisers as to the loss suffered. State, Through Department Of Highways v. Hoyt, supra.

The District Court found damage to the remaining commercial property because:

The remaining property no longer was a corner;
The remaining property had no frontage on any highway or major road;
The only frontage to the remaining property was on a service road, and the total of that frontage was 367.79 feet less than the total frontage of the property on the major highways prior to the taking;
The remaining property was reduced to a very odd shaped tract, with its only access being through an access road, which ran along a waving line, more or less bow shaped;
The view of the property from traffic proceeding north on Airline Highway was destroyed by the overpass, which was more than 20 feet higher than the property (Offering 0-1);
The view of the property from traffic moving east on Greenwell Springs Road was obstructed by the overpass;
The only way for traffic going east on the Greenwell Springs Road to get to the access road was to leave the highway and make a left turn into Lanier Drive and then another left turn into the access road;
The only way for traffic going west on the Greenwell Springs Road to get to the property was to make a right turn into Lanier Drive and then a left turn into the access road;
Traffic going south on Airline Highway would have to know where the property was and make a left turn into Maribel Drive before it arrived at the property and then make a right turn onto the access road; or, if it missed the turn into Maribel Drive, turn west into Greenwell Springs Road on the access road and then cross the overpass with the same compli-catiohs for traffic going east on the Greenwell Springs Road, as set out above. (Written Reasons for Judgment, page 4.)

There was no manifest error in the District Court’s award for damages to the remaining commercial property. However, none of the above factors apply to the Court’s award for damages to the remaining residential property.

Of the five appraisers who testified in this case only Mr. Perkins was of the opinion that there was damage to the remaining residential property. Mr. Perkins stated, without providing reasons, that the remaining residential property had been damaged $1,000.00 per acre. When an expert appraiser’s opinion is not well grounded in logical reasoning or supported by acceptable evidence, such as good compara-bles, the Court may disregard it, and follow those which are well grounded and logically reasoned. State v. D. H. Sanders Realty-Company, 244 La. 934, 155 So.2d 24 (1963); State, Department Of Highways v. Clement, La.App., 311 So.2d 5 (1st Cir. 1975). There is no proof that the remaining residential property has been damaged as a result of the expropriation.

Baton Rouge Realty has also appealed the expert witness fees fixed by the District Court and the interest rate set on the judgment.

The fixing of expert witness fees is within the discretion of the District Court and no change will be made in the amount fixed unless there is an abuse of discretion. Monroe Redevelopment Agency v. Merkel, La.App., 321 So.2d 429 (2nd Cir. 1975). We find no abuse of discretion in this case.

The expropriation of the property in the present case occurred prior to the amendment of Louisiana Civil Code Article 1938 by Act No. 315 § 1 of 1970 which increased the legal interest rate from five percent to seven percent. Therefore, the District Court was correct in setting the interest rate at five percent. State, Department Of Highways v. Ronaldson, La.App., 316 So.2d 898 (1st Cir. 1975).

For the foregoing reasons the judgment of the District Court is amended to reduce the award to Baton Rouge Realty to $244,-415.00 less the sum of $164,777.00 deposited by the Department of Highways.

AMENDED AND AFFIRMED AS AMENDED.


text:
    Luke ROUSE, Individually, and as Administrator of his minor child, Leonard Rouse, and Delores Rouse, Plaintiffs-Appellants, v. GEORGE A. HORMEL AND COMPANY, Defendant-Appellee.
    No. 10968.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Mary Olive Pierson and C. James Car-ville, Jr., Beychok, Cooper, Pierson & Screen, Baton Rouge, for plaintiffs-appellants.
    Jerry A. Brown and J. Wayne Anderson, Monroe & Lemann, New Orleans, for defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court dismissing the suit brought by Luke Rouse, individually, and as administrator of his minor child, Leonard Rouse, and by Delores Rouse, plaintiffs-appellants, against George A. Hormel and Company, defendant-appellee.

On Sunday, October 3, 1971, Mrs. Rouse opened a can of Hormel Spiced Luncheon Meat, cut several slices of meat, and made sandwiches for the evening meal. While eating the sandwiches, the Rouses discovered a sliver of glass in the slice of meat being eaten by three year old Leonard Rouse. Leonard was eating only the luncheon meat. Several hours later the family became sick. The family was hospitalized for several days as a result of this illness. The appellants have brought this suit to recover for injuries suffered as a result of this illness.

The luncheon meat was tested by the Shilstone Testing Laboratory which confirmed that there was a sliver of glass in the product. However, the laboratory found no other glass or extraneous matter in the remaining meat nor were organisms of a food poisoning nature cultured from the product.

The general rule in Louisiana regarding liability for damages which result from the consumption of prepared foods is that the plaintiff must prove that the defendant’s product contained a deleterious substance, that the substance was consumed, and that as a result of the consumption, the plaintiff sustained an injury. LeBlanc v. Louisiana Coca Cola Bottling Co., 221 La. 919, 60 So.2d 873 (1952); Sticker v. General Foods Corp., La.App., 324 So.2d 568 (1st Cir. 1975).

The Trial Judge concluded that while the appellants established the presence of a sliver of glass in the luncheon meat and their illness, they failed to prove that their illness resulted from the consumption of the luncheon meat. This conclusion is supported by the fact that the only glass found in the luncheon meat was the single sliver discovered by the Rouses and by the expert medical testimony of Doctors Spedale and Pankey that there was no definite medical evidence that the appellants had consumed any glass. They testified that the appellants’ symptoms could have resulted from any one of several causes.

Because the appellants have failed to prove that the consumption of the defendant’s product was the cause in fact of their illness, the judgment of the District Court is affirmed. Cost to be paid by appellants.

AFFIRMED.


text:
    GREAT AMERICAN INSURANCE COMPANY and Ruth E. Fisher, Plaintiffs-Appellees, v. W. O. TURNAGE, Individually and on behalf of his minor daughter Theresa Turnage, et al., Defendants-Appellants.
    No. 10984.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Edward L. Levert, Jr., Robert J. Young, Jr., New Orleans, for plaintiffs-appellees.
    John W. Anthony, and R. Bradley Lewis, Bogalusa, for defendants-appellants.

      Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court awarding Ruth E. Fisher and Great American Insurance Company, plaintiffs-appellees, $914.38 for damage to Ruth Fisher’s automobile and against W. 0. Tur-nage, individually and on behalf of his minor daughter, Theresa Turnage, Bryce Kennedy, Heritage Insurance Company of North America and Commercial Union Insurance Company, defendants-appellants.

At approximately 10:30 P.M. on October 6, 1973, an automobile accident occurred in Franklinton, Louisiana, at the intersection of Main Street and Washington Avenue between an automobile owned and driven by Ruth Fisher and an automobile owned by Bryce Kennedy and driven by Theresa Turnage, a minor at the time. The intersection was at that time controlled by a flashing signal, yellow on Washington Avenue and red on Main Street.

The accident occurred when Ruth Fisher’s automobile, which was traveling east on Washington Avenue, was struck on the right front fender and door by Bryce Kennedy’s automobile, which was being driven north on Main Street by Theresa Turnage. The cost of repairing the damage to Ruth Fisher’s automobile caused by the collision was $914.33. Ruth Fisher's insurer, Great American Insurance Company, paid the cost of the repairs, less a $100.00 deductible paid by Ruth Fisher.

The appellees brought this suit to recover the repair cost, alleging that the sole and proximate cause of the damage was the negligence of Theresa Turnage. The appellants answered denying liability and alleging that the sole and proximate cause of the accident was the negligence of Ruth Fisher or, that in the alternative, Ruth Fisher’s negligence was a contributing cause of the accident.

After a trial on the merits, the District Court rendered judgment in favor of the appellees.

From this judgment the appellants bring this appeal contending that the Trial Judge erred:

1. In holding that Theresa Turnage was negligent, and;

2. In holding that Ruth Fisher was not guilty of contributory negligence.

Article 2315 of the Civil Code which establishes liability for acts causing damage provides in part:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. . ”

Two of the factors necessary for liability under the article are that the act cause the damage and that the actor be at fault. It is obvious that Theresa Turnage’s act, hitting the side of Ruth Fisher’s automobile, was a cause of the accident and of the resulting damage. The evidence also establishes “fault” on the part of Theresa Turnage.

La.R.S. 32:234(A)(1) provides:

“(1) FLASHING RED (STOP SIGNAL) —When a red lens is illuminated with rapid intermittent flashes, drivers of vehicles shall stop before entering the nearest cross-walk at an intersection or at a limit line when marked, or, if none, then before entering the intersection, and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign.”

A flashing red light is tantamount to a stop sign insofar as the duty of the motorist approaching it is concerned. State Farm Mutual Automobile Ins. Co. v. Merritt, 185 So.2d 832 (La.App., 3rd Cir. 1966). A person approaching a stop sign is under a duty to stop and not proceed until he is certain it is safe, especially where the intersection controlled is a blind one. Continental Insurance Company v. Duthu, La.App., 235 So.2d 182 (4th Cir. 1970).

Theresa Turnage testified that she stopped at the intersection, that her vision to the left was blocked by a building and that she could not see into the intersection when she pulled out. She further testified that had she stopped closer to the intersection, she would probably have been able to see to the left. There is other testimony in the record to support this conclusion.

This evidence supports the finding that Theresa Turnage was at fault, and that her fault was the cause of the accident.

La.R.S. 32:234(A)(2) provides:

“(2) FLASHING YELLOW OR AMBER (CAUTION SIGNAL) — When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through or past such signal only with caution.”

• A motorist who approaches an intersection controlled by a flashing yellow light is under a duty to exercise a greater degree of care and vigilance than one approaching a green light or an uncontrolled crossing. Pederson v. Schenck, La.App., 204 So.2d 316 (1st Cir. 1967). The degree of caution required of a person approaching a flashing yellow light includes approaching at a reasonable speed and maintaining a proper lookout for danger. What constitutes a reasonable speed and a proper lookout depends on the facts of each case. Rogers v. Tiger, La.App., 305 So.2d 147 (1st Cir. 1974); Insured Lloyds v. Liberty Mutual Insurance Co., La.App., 286 So.2d 420 (1st Cir. 1973). While a driver approaching a flashing yellow light may ordinarily rely on the fact that a driver approaching a flashing red light will stop before entering the intersection as required by law, the driver approaching the yellow light is under a duty to exercise caution and vigilance as he enters the intersection so that he may ascertain whether he can cross with safety. State Farm Mutual Automobile Ins. Co. v. Merritt, supra; Savoy v. Cooley, 144 So.2d 223 (La.App., 1st Cir. 1962).

Ruth Fisher' testified she was familiar with the intersection, slowed as she approached it, and went through it at approximately 20 miles per hour while watching for other cars.

Where there is evidence before the trier of fact which furnishes a reasonable factual basis for the Trial Court’s conclusions, the Appellate Court should not disturb this factual finding in the absence of manifest error. Canter v. Koehring Company, La., 283 So.2d 716 (1973). There is testimony in the record supporting a conclusion by the Trial Judge that there was no negligence on the part of Ruth Fisher which contributed to the accident.

For the above and foregoing reasons, the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.


text:
    John L. MOREL, Jr. v. HIGHLINE CONSTRUCTION CO. et al. Biaggio A. MANGANO v. HIGHLINE CONSTRUCTION CO. et al.
    No. 11096.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      J. R. Schmidt, Hammond, for plaintiff.
    Boris F. Navratil, Breazeale, Sachse & Wilson, Baton Rouge, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Supervisory writs have been granted in this case for a determination of whether the defendants are entitled to a trial by jury.

Article 1732 of the Code of Civil Procedure provides:

“A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue.”

On April 26, 1976, the defendants with leave of the District Court filed an amended answer and third party petition. Seven days later, on May 3, 1976, the defendants filed a motion for a trial by jury. The District Court on August 10, 1976, denied the defendants’ motion on the grounds that defendants’ pleading of April 26, 1976 was not directed to any “issue” triable by a jury. “Issue” was defined by the District Court as “a single, certain and material point, deduced by the pleadings of the parties which is affirmed on one side and denied on the other.” Black’s Law Dictionary.

Defendants’ amended answer pleads as an affirmative defense that the defendants are entitled to an off-set for previous payments of $14,653.03 against any judgment awarded the plaintiff. In their third party petition defendants ask for contribution from their co-defendants because of concurrent and contributory negligence as to any judgment in favor of the plaintiff which may be rendered against them. The record does not contain admissions by either the plaintiff or co-defendants that the defendants are entitled to the relief they seek in their pleading.

Defendants’ amended answer and third party petition present “issues” which can be controverted and are triable by jury. Therefore, defendants’ motion for a jury trial was timely filed.

IT IS ORDERED, ADJUDGED AND DECREED that defendants’ application for writs of certiorari and mandamus be made absolute and the Honorable Burrell J. Carter, Judge of the Twenty-First Judicial District Court for the Parish of Livingston is hereby ordered and directed to grant a jury trial in the above captioned matter.

The case is remanded to the District Court for further proceedings in accordance with the above holding. Cost to be paid by respondents.

REMANDED.


text:
    Felix J. FRYOU v. SECURITY INDUSTRIAL INSURANCE COMPANY.
    No. 11108.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      E. Robert Sternfels, Triche & Sternfels, Napoleonville, for plaintiff and appellee.
    Donald T. Carmouche, Talbot, Sotile & Carmouehe, Donaldsonville, for defendant and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Pursuant to motion filed on September 17, 1976, by plaintiff-appellee, Felix J. Fryou, this Court ruled defendant-appellant, Security Industrial Insurance Company, to show cause why this appeal should not be dismissed for appellant’s alleged failure to pay the cost of preparing the record on appeal and the filing fee required by this Court to lodge the appeal.

Judgment was rendered on April 1, 1976, and an order of appeal was duly signed on April 28, 1976, granting unto appellant a suspensive appeal and fixing June 25, 1976 as the return date. The appeal bond was filed on May 5, 1976, and the transcript of the testimony was filed on July 12, 1976.

Movant attached to its motion to dismiss an affidavit of Kermit A. Bourque, Clerk of Court, Twenty-Third Judicial District Court, Parish of Ascension, dated September 15, 1976, in which he affirms: No extension of the return date had been applied for or granted; the costs for preparing the record had not been paid as of that date; the record had not been prepared or lodged in this Court because of the failure to pay the costs; and, he mailed to defendant-appellant a bill itemizing costs prior to June 25, 1976.

On October 5, 1976, the clerk executed another affidavit to correct and amend his affidavit of September 15, 1976, wherein he affirms: No bill was ever sent to appellant or its attorney for filing fees or costs of this appeal; the usual and established practice of his office is to prepare the record and await the filing of the transcript by the Court Reporter; while waiting for the transcript to be prepared, his office regularly and customarily cures delays in lodging an appeal by the filing of retroactive extensions in the record; his office customarily sends a bill to an appellant on the day any particular suit account shows a negative balance; and, he mistakenly signed the previous affidavit due to his failure to carefully read the last paragraph thereof.

An affidavit by the Court Reporter indicates that a bill for costs of transcribing the testimony was mailed directly to appellant’s attorney and that it was immediately paid.

The appellant contends that the failure to timely lodge the record is not imputable to him because he relied upon local custom and practice set forth in the clerk’s affidavit of October 5, 1976, and that he was at all times willing to pay the costs and fees upon being notified of the amount thereof.

Appeals are favored and are to be dismissed only when clearly required by law. Louisiana Power & Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970), rehearing denied (1970). No appeal shall be dismissed because of any irregularity, error or defect unless it is imputable to the appellant. CCP Art. 2161. It is the primary responsibility of the Clerk of the Trial Court to lodge the record on appeal as well as secure any extensions of the return day. CCP Art. 2125; Louisiana Power & Light Company v. Lasseigne, supra. It is the duty of appellant to pay the costs and fees to the Clerk of the Trial Court, not later than three days before the return date, or extended return date. R.S. 13:4445.

Once the return day expires without the lodging of the record on appeal or an extension of the return day, the Trial Court loses the jurisdiction to extend the return day. CCP Arts. 2088 and 2125; R.S. 13:4438; and Louisiana Power & Light Company v. Lasseigne, supra.

Even assuming that the Clerk’s failure to timely request an extension of the return day is not imputable to appellant, nevertheless, on or about July 12, 1976, appellant was aware that the transcript of testimony had been filed in the record. It was appellant’s duty to keep informed of the return date and the amount of the fees and costs. Failure to ascertain the amount thereof and to timely pay or at least tender the fees and costs from July 12, 1976 to September 17, 1976 is attributable to appellant.

Louisiana law does not require billing for appellate costs and fees by the clerk, to the contrary it required timely tender by the appellant of these costs and fees to the clerk. Louisiana Power & Light Company v. Lasseigne, supra.

Further, local practice and custom of the Clerk of Court cannot be allowed to contravene the specific codal and statutory provisions requiring timely payment of appellate costs and fees. Louisiana Power & Light Company v. Lasseigne, supra.

The failure to timely pay the costs and fees are imputable to appellant and incurs the penalty of forfeiture of appeal. Hunt v. Winn Dixie Louisiana, Inc., La.App., 276 So.2d 900 (1st Cir., 1973); Martin v. Travelers Insurance Company, La.App., 313 So.2d 342 (3rd Cir., 1975), writ refused, La., 318 So.2d 47 (1975).

The motion to dismiss is granted and judgment rendered herein dismissing appellant’s appeal at its cost.

APPEAL DISMISSED.


author: PONDER, Judge.

text:
    Bill G. READY v. SUN OIL COMPANY.
    No. 10954.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      John N. Gallaspy and Michael J. Paduda, Jr., Bogalusa, for plaintiff.
    France W. Watts, III, Franklinton, for Sun Oil Co.
    James S. Farmer and Donald M. Fendla-son, Bogalusa, for Charles Miller.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for damages for breach of contract. The trial court dismissed plaintiff’s suit and defendant’s third party demand. We dismissed plaintiff’s appeal for lack of a final judgment. Ready v. Sun Oil Co., 315 So.2d 840 (1st Cir. 1975). A final judgment was obtained and plaintiff has appealed again.

The sole issue is whether or not plaintiff has borne his burden of proof. We affirm.

In 1968, Bill G. Ready, plaintiff, leased a service station in Bogalusa to Sun Oil Company for two cents per gallon. Subsequently, Sun, by written agreement, subleased the station to Ready’s brother-in-law, Charles Miller, for one-half cent per gallon. Plaintiff filed this suit in 1971, for -the payment of an additional one cent per gallon purportedly due under an alleged side agreement among Ready, Miller and Sun. Sun filed a third party demand against Miller.

Ready, who was owner and manager of a Sun Oil Company service station, needed three cents per gallon rental to be able to purchase and pay for another station. However, it was Sun Oil’s policy never to pay over two cents per gallon rental on any site. According to Ready, in order to get around the policy, Sun agreed to pay two cents per gallon to him directly and to pay an additional one cent per gallon through Miller, who by contract was being charged one half cent per gallon rental by Sun, but was actually paying one and a half cents per gallon, one half cent to Sun and one cent to Ready. Ready received payments of one cent per gallon from Miller from the opening of the station in 1968, through June 1971.

T. E. Williams, Sun’s territorial salesman and the person who represented Sun in negotiations with Ready, testified that he personally presented Ready’s three cent per gallon demand to Sun officials, that the demand was refused, that Ready was so informed, and that Ready agreed to receive two cents per gallon as per the written lease. He denied the existence of any side agreement. Mr. A. K. Rohwedder, Williams’ immediate superior, deposed that there was never any agreement for more than two cents per gallon and Sun never paid more than two cents per gallon. McNeil Hower and Robert Farrell, representatives of Sun in the Bogalusa area after Williams, admitted they knew Miller was paying one cent per gallon to Ready, but testified they did not know why.

Charles Miller testified that Williams drew up a side agreement whereby he (Miller) was obligated to pay Ready one cent per gallon; he never leased from Ready, but the one cent per gallon was necessary so Ready would get three cents per gallon. He quit paying Ready because representatives of South Central Oil, a subsidiary of Sun, told him to.

Ken Myers, a former territorial salesman of Sun, testified that Ready was paid three cents per gallon, two cents directly and one from Miller. The testimony of Myers is in hopeless conflict with that of plaintiff. As an example, according to Myers, the side agreement was handwritten, signed and sent to the home office for typing. According to Ready, Williams typed up the agreement in the rear of a pickup truck in Boga-lusa and it was executed immediately thereafter in a local restaurant.

The trial judge viewed Ready, Miller, Williams, Hower and Farrell as they testified and determined that Ready had failed to prove any obligation on Sun’s part to pay the additional one cent per gallon. We are unable to say that the trial judge’s evaluation of credibility is in conflict with the record. The testimony of Rohweeder and that of Williams are fully supported by the leases and office correspondence introduced into evidence.

Accordingly, we affirm; appellant is cast with all costs.

AFFIRMED.


text:
    Imogene TATE, indiv., etc. v. WINN DIXIE OF LOUISIANA, INC., et al.
    No. 10964.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Alex W. Wall, Baton Rouge, for plaintiffs-appellees, Imogene Tate, Ind. and natural tutrix of the minor Symestress Tate.
    J. Wayne Anderson, New Orleans, for defendants-appellants, Winn Dixie Louisiana, Inc. and Morgan Packing Company.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a tort case based upon an alleged illness resulting from eating contaminated food. The trial court gave judgment in favor of plaintiff for $350.00. Defendant, Morgan Packing Co., Inc., timely appealed. Plaintiff answered the appeal requesting an increase in the award to $1,500.00.

The issues involved are the sufficiency of plaintiffs proof of causation and quantum. We affirm.

On May 6, 1974, Symestress Tate, her sister, and their mother Imogene Tate, ate their evening meal about 5:30 or 6:00 p. m. All were evidently feeling fine. At the meal, Symestress ate only corn; her mother ate rice, chicken and corn, and her sister ate rice and chicken, but no corn. Symestress became ill approximately 15-30 minutes later, at first complaining of stomach pains, then regurgitating three or four times, and finally complaining of diarrhea.

Approximately 30-45 minutes after Sym-estress became ill, Mrs. Tate found a white worm with a black head in the can of corn. Mrs. Tate also became ill that night.

Symestress was taken to the doctor the next day and again on May 9th. On the first visit the doctor noted “possible food poisoning;” on the second visit he noted “Impression — No food poisoning.” He placed her on a soft diet. She returned to school approximately one week later.

CAUSATION

Defendant argues on appeal that it established the child’s illness was not caused by the contents of the can of corn. Mrs. Losi-koff, defendant’s only witness, qualified as an expert in the field of microbiology, testified that there are two types of food poisoning resulting from bacteria: bacterial infection and bacterial intoxication. The first manifests itself within seven to seventy-two hours and the second within one to six hours. She tested the corn left in the can for chemical toxins and found none. She stated that even if a worm was in the corn, the canning process would have rendered it harmless.

The lower court specifically noted in oral reasons that “the plaintiff has borne the burden of proof of showing a causal connection between the eating of the corn that was canned by the Morgan Canning Company and a subsequent illness that . (the) child suffered . . ”

The trial judge evidently chose to believe the testimony of Mrs. Tate and to reject that of Mrs. Losikoff. He also evidently did not give major importance to the second medical report. His conclusion is also supported by the fact that only the two people who ate the corn became ill; the third person did not. A plaintiff need not negate every conceivable cause that could have brought about the illness; he need only establish that the alleged deleterious food more likely than not caused the illness. Willie Gilbert v. Gendusa Bakery, Inc., et al., La.App., 144 So.2d 760 (4th Cir. 1962).

In the recent case of Billiot v. Bourg, La., 338 So.2d 1148 (1976), the Supreme Court said “nor should the reviewing court disturb the trier of facts reasonable inferences drawn from such testimony found by it to be credible.” The reasonable inference to be drawn from Mrs. Tate’s testimony is that the contaminated corn caused the subsequent illness of Symestress Tate.

QUANTUM

Defendant argues that, since the child was given no drugs and was discharged less than 72 hours after onset of the illness, an award of $50 to $100 would compensate plaintiff. Plaintiff argues that in addition to being ill, the child may never be able to eat corn again, and therefore, a more “realistic” award would be $1,500.00. We are of the opinion that the award of $350.00 is ample, is supported by the record, and is within the broad discretion allowed the trial judge by Civil Code Article 1934(3).

Accordingly, we affirm. Appellant is cast with all costs.

AFFIRMED.

      . Defendant, Winn Dixie Louisiana, Inc., ve lor of the food, was dismissed pursuant to a peremptory exception of no cause of action.


text:
    Joseph H. NOLFO v. Henry LANDECHE d/b/a Signal Electronics.
    No. 10977.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    James C. Walker, Jr., Houma, for appel-lee and plaintiff.
    Philip J. McMahon, Houma, for appellant and defendant.
    ■ Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for commissions due under a verbal contract of employment and for penalties and attorneys’ fees under LSA-R.S. 23:631 and 632. The lower court gave judgment in favor of the plaintiff for $1,814.61 plus $453.66 attorneys’ fees, together with interest of seven per cent per annum from date of judicial demand on the principal and attorneys’ fees. Defendant has appealed from this judgment.

The issues are the applicability of LSA-R.S. 23:631, the adequacy of plaintiff’s proof and the validity of the award for attorneys’ fees. We amend and affirm.

Plaintiff was employed by defendant as a salesman under a verbal agreement calling for a salary of $500.00 per month plus a 10% commission on all sales made by him. On the afternoon of February 12, 1974, plaintiff resigned.

The parties have stipulated that appellee did in fact sell certain equipment prior to terminating his employment, for which he received no commissions. Defendant contends, however, that procuring the signature of the customer on the order form was only a portion of the work for which he was paid a commission; that since plaintiff never completed this work, he is entitled to only a portion of his commission on each sale, based on the amount of work he did compared to the total work that was required to complete the sale.

LSA-R.S. 23:631 reads as follows:

“It shall be the duty of every person employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment whether the employment is by the day, week or month, upon demand being made upon the employer by the discharged or resigned laborer or employee at the place where the employee or laborer is usually paid.”

Our research has not revealed any case in which the statute was held applicable to commissions. In Gros v. LeBlane, 304 So.2d 49 (La.App. 1st Cir. 1974), this court held the statute inapplicable to employment by the hour and for an indefinite length of time. Gatti v. Southern Research Company, Inc., 271 So.2d 376 (La.App. 2d Cir. 1972), held that the plaintiff’s claim did not come within the statute when the rate of pay was indefinite and the employment was for the duration of a case in court. Dunn v. Bessie F. Hiern School, Inc., 209 So.2d 538 (La.App. 4th Cir. 1968) writ refused, 252 La. 469, 211 So.2d 231, holds the statute inapplicable to a teacher’s employment contract for a term of nine months. Colbert v. Mike-Baker Brick Co. of New Iberia, Inc., 326 So.2d 900 (La.App. 3rd Cir. 1976) held the statute applicable despite defendant’s contention that the plaintiff was employed at an hourly rate and for an indefinite period of time, saying that the employment was “by the . . . week,” when he was paid weekly. See Weaver v. Mid America Distributing Co., 309 So.2d 370 (La.App. 2nd Cir. 1975) in which the decision allowing two per cent of gross profits as part of the award was affirmed without comment on this point. We hold that LSA-R.S. 23:631 is applicable under the circumstances.

This case involves primarily a question of fact and great weight must be given to the ruling of the trial judge. Canter v. Koehring Company, 283 So.2d 716 (La.1973). The facts recounted above together with plaintiff’s testimony that he was not required under the employment contract to do more to complete the sale than he did, support the court’s finding that appellee is entitled to a full commission on all sales made by him.

However, the trial court awarded commissions on a sale of $825.00 to Acadian Ambulance Service and a sale of $1,618.45 to Morvant. Plaintiff testified these figures should have been $625.00 and $1,536.45. We therefore amend the judgment of the trial court and award commissions in the amount of $1,786.41.

Under the provisions of LSA-R.S. 23:632, the trial court awarded $453.66 in attorneys’ fees but declined to award any sum for penalties. The question of refusal of penalties is not before us since plaintiff has neither appealed nor answered the appeal. Defendant claims, however, that the award of attorneys’ fees to plaintiff was erroneous because they are not proper when there is a bona fide dispute as to wages due. But in Porter v. Lombardino, 303 So.2d 493 (La.App. 2nd Cir. 1974), writ refused, 307 So.2d 370 (La.1975), the court allowed attorneys’ fees, citing the specific language of the statute.

In Robertson v. International Motor Company of Houma, Inc., 314 So.2d 531 (1975), this Court, following Porter, awarded attorneys’ fees even though there was no bad faith or arbitrariness on the part of the employer. The opposite result in Colbert v. Mike-Baker Brick Co. of New Iberia, Inc., supra, is reached by employing the “equitable defense” doctrine, without mention of the words of the statute or of the Porter and Robertson cases.

We hold that the award of attorneys’ fees is valid and that the amount awarded is within the wide discretion granted to the trial judge.

Accordingly, we affirm the judgment as amended. Defendant-appellant is cast with all costs of these proceedings.

AMENDED, AND AS AMENDED, AFFIRMED.

      . LSA-R.S. 23:632 (in part) “Reasonable attorneys fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event of a well founded suit for any unpaid wages whatsoever be filed by the laborer or employee after twenty-four hours shall have elapsed from time of making the first demand following discharge or resignation.”