author: FORET, Judge.

text:
    In the Matter of the Commitment of Mervin SIMON. Appeal of DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Plaintiff.
    No. 6528.
    Court of Appeal of Louisiana, Third Circuit.
    May 8, 1978.
    Otha C. Nelson, Sr. and Frank H. Reeves, Baton Rouge, for plaintiff-appellant.
    Polk Culpepper, Asst. Dist. Atty., Alexandria, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   FORET, Judge.

The trial court in this matter, which is under appeal from the Ninth Judicial District Court, in dismissing petitioner’s suit, without prejudice, handed down excellent reasons for judgment, which we take the liberty of adopting as our own (in part), and we quote therefrom:

“This action commenced as a Petition for Judicial Commitment of Mervin Simon under Act 714 of 1977 of the Louisiana Legislature. The Petitioner was the Department of Health and Human Resources. Simultaneously, similar actions were filed and given the docket numbers as follows: Girard Brown, Number 191; William Grimble, Number 192; and Eleanor Girouard, Number 193 on the docket of the Ninth Judicial District Court for the Parish of Rapides, Louisiana. Presented with each petition was an order containing a provision for the appointment of physicians to examine the respondents. Also, the order contained a provision for the appointment of an attorney to represent these respondents. The undersigned appointed the only two practicing psychiatrists in the Alexandria-Rapides Parish area to examine the respondent. These were Doctors Davidson H. Texada and Walter Sidney Easterling. These appointments were made pursuant to Section 54 of the Act referred to above. The date of this appointment was October 6, 1977. The hearing was fixed for October 14, 1977.

“As of the date set for the hearing, no examination had been made by the two appointed physicians and no report had been made by them. In the absence of any reports by the physicians, the undersigned continued the hearings without date with the concurrence of the attorney appointed to represent the respondents.

“A return of the sheriff shows that service of the appointment was made on Dr. Easterling on October 10, 1977 and on Dr. Texada on the same date.

“Subsequent to the appointments of these two doctors made by the undersigned, other judges of the Ninth Judicial District Court made similar appointments of Dr. Easter-ling and Dr. Texada. The undersigned was informed that these doctors have accepted none of these appointments. (The undersigned considers that the two doctors are fully justified in declining these appointments.) The undersigned received a letter from Dr. Texada dated October 24,1977, in which he stated with reference to all four of the above mentioned commitment proceedings the following:

“Due to the complex circumstances involved in the above matter (referring to Judicial Commitments), I do not feel that I can serve as an examining physician in Judicial Commitments.”

“During this period of time all five of the judges of this division considered the provisions of Act 714 of 1977 and numerous administrative problems raised by its provisions. The problem of obtaining physicians to examine respondents in commitment proceedings as required by Section 54 were discussed. The Chief Judge of this Judicial District, the Honorable Guy E. Humphries, Jr., and the undersigned attended a meeting at Central Louisiana State Hospital for the purpose of viewing and participating in a state wide hookup on closed television at which time the Act was discussed by a panel assembled at the instance of the Department of Health and Human Resources. It was made clear by the Commissioner of Administration, who was a member of the panel, that no state funds were available and none would be forth coming to fund Act 714 of 1977 and funding would have to wait until the next meeting of the legislature.

“On October 26, 1977, the Chief Judge of the Ninth Judicial District Court, Judge Humphries, addressed a letter to Dr. A. M. Alexander, President of the Rapides Parish Medical Society. He drew his attention to Act 714 of 1977, and he pointed out that the Act suggests that one of the two physicians appointed be a practicing psychiatrist. He also pointed out that the Act provided that, if possible, the physicians not be connected with the treatment facility to which the commitment is sought to be made. He pointed out that the Act provided that the examining physicians shall be paid reasonable compensation of an amount to be established by the court and this compensation was to be paid by the respondent or the petitioner. He also discussed funding problems. Judge Humphries asked Dr. Alexander, as President of the Rapides Parish Medical Society to apprise the members of the medical society of the provisions of this Act and ask if any were willing to accept appointments under 714 of 1977. To date no volunteers have come forward.

“Faced with this situation, the undersigned dismissed the petitions against Mervin Simon, Girard Brown, William Grimble and Eleanor Girouard on the court’s own motion. The reasons for the dismissal of the petitions were given in the judgment itself.[]

“Considering the possibility that the petitioner, the Department of Health and Human Resources, may wish to appeal the action of this court, the undersigned has deemed it appropriate to give these further reasons for the judgment of dismissal. It will be noted that at the time of the dismissals approximately one month had passed since the filing of the original petitions. The undersigned saw no possibility of obtaining the appointment of physicians to comply with Section 54 other than appointing physicians at Central Louisiana State Hospital where the respondents were being confined. A much more serious question is presented by the fact that the undersigned knows of no authority by which it can order any physician, private practitioner, or member of the staff of a state hospital, to act as an examining physician under Section 54 of Act 714 of 1977. Subsection E of Section [55] provides that in order to render a judgment for commitment under the Act, the court must find ‘by clear and convincing evidence that the person who is subject of the petition is dangerous to himself or others or is gravely disabled.’ On November 4, 1977, being mindful of the heavy burden required of petitioner to establish justification for a Judicial Commitment, and considering the fact that the respondents had been in custody of the treating facility for some time, and knowing of no way in which the Act could be given effect other than by appointment of physicians on the staff of the treating facility, the undersigned concluded that it was impossible to give effect to Act 714 of 1977.

“The undersigned also gave consideration to the fact that the obvious philosophy of Act 714 of 1977 was to cast judicial commitments in the true form of adversary proceedings so as to give maximum effectiveness to the rights of respondents. It would be working against the philosophy of the act to appoint physicians on the staff of hospitals under the jurisdiction of the state. This would, in effect, place them both on the side of petitioner and respondent.

“As a matter of experience, any district judge knows that many commitments in the past have been for the purpose of placing persons who are incapable of caring for themselves in nursing homes. Conceivably subsection E of Section 55 of the Act might cover such commitments in the language ‘dangerous to himself or others or is gravely disabled.’ However, until some interpretation is given to the Act the meaning of gravely disabled will be in doubt. '

“The undersigned can readily perceive that there are cases where a person will be obviously dangerous to himself or others. It can only be suggested that if the staffs of the institutions involved know such to be the case and physicians of the institutions or physicians in private practice are willing to volunteer for appointment, then such appointments can be made. Otherwise, the courts of this state are without authority to order the appointment of physicians in the absence of an indication by the physician that he will accept the appointment. (Nevertheless, if appointments are made of physicians of institutions to which commitment is sought to be made, the appointments will be contrary to the spirit of the act.)

“While the legislature undoubtedly had meritorious considerations in mind [in] enacting Act 714 of 1977, if the examination by physicians under Section 54 must be undertaken by the staffs of the institutions to which the respondents are to be committed, there is grave danger that these staffs will be unable to perform their basic duties and responsibilities. In any event, it will be necessary for the courts to know that a particular physician appointed will in fact accept such an appointment.

“In this particular case involving respondent, Mervin Simon, this court was faced with the simple practical fact that no physicians were available and the Act simply could not be given effect. Under the circumstances the rights of Mervin Simon and simple justice required that the petition in his case, as well as the other petitions mentioned above, be dismissed.”

Judgment of the trial court is affirmed.

Costs are assessed against the Department of Health and Human Resources, insofar as State agencies are responsible for court costs.

AFFIRMED.

      . Subsection D of Section 54 provides in part as follows: “ . . . the court shall order the respondent to be examined by two physicians selected by the court, one of whom preferably should be a practicing psychiatrist. The physicians shall be licensed to practice medicine in the State of Louisiana, and if possible the physicians should not be connected with the treatment facility to which the commitment is being made, if known.”

       . . . the Court having found that the statutory provisions in question cannot be given effect, particularly that no funds exist or are available to provide for the cost of appointing two practicing psychiatrists as provided by Section 54 of said Act to examine respondent, having further concluded that no such appointment of psychiatrists can be made without violating the spirit of the Act through appointed physicians connected with the treating facility which is petitioner herein, and further finding that the appointment of physicians from the treating facility would severely cripple the professional staff of the treating facility, and further finding on the basis of the foregoing findings that it is impossible to give effect to Act 714 of the Louisiana Legislature of 1977 .


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    DOUCET BROTHERS CONSTRUCTION COMPANY, INC. v. TOMENY CONSTRUCTION COMPANY, INC.
    No. 8319.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Writ Refused June 30, 1978.

      Samuel S. Dalton, New Orleans, for plaintiff-appellant.
    Sidney D. Torres, III, Chalmette, and George N. Bischof, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit for specific performance of an alleged option giving plaintiff the right to purchase four certain lots of immovable property (Lots 13 and 14, Square A, Lot 17, Square C, and Lot 30, Square B) in Harahan Oaks, a subdivision in the City of Harahan, Parish of Jefferson. In connection with this suit, plaintiff filed a notice of lis pendens in the Jefferson Parish mortgage records.

Defendant answered in the form of a general denial and reconvened for damages. Thereafter both parties filed motions for summary judgments. Following trial of both motions, there was judgment granting defendant’s motion for summary judgment and dismissing plaintiff’s demand. Plaintiff’s motion was denied. Plaintiff has appealed from that portion of the judgment which grants defendant’s motion.

Plaintiff’s claim is based in its entirety upon a provision contained in an addendum attached to several prior purchase agreements between the parties. The addendum was agreed to and signed by both parties. The pertinent provision reads:

“Purchaser reserves the right to purchase additional available lots through the remainder of Year, 1975, at a 15% discount from current list price as of this date, on any of the lots other than a 60 foot front lot, which will bear a 10% discount.”

The trial court judgment is based on a finding that the above quoted provision does not create a valid option to purchase property involved here.

On December 30,1975, plaintiff presented the defendant’s realtor with four offers to purchase the lots in suit. The offers were in writing on the standard realtor’s form used in this area. In pertinent parts the offers appear to be identical. Each was for a different lot, conditioned upon the acceptance of the other three offers, conditioned upon homestead financing, and provided that each act of sale was to be passed before the lender’s notary on or before March 1,1976. The offers were rejected by the defendant.

We find it unnecessary to decide whether or not the addendum provision constitutes a valid option. Even assuming, but not deciding, that it does, we must hold it was not properly or timely exercised by the plaintiff. In the first place, it was conditioned on financing not mentioned in the addendum provision. And in the second place, all offers were made on December 30, 1975 with the acts of sale to be passed March 1, 1976. The provision clearly calls for the purchase of the lots during the year 1975. The word “purchase” means acquisition, in this case a contemplated acquisition by an act of sale passed in 1975, not during 1976. The addendum provision does not require the defendant to accept plaintiff’s offers to purchase the lots in 1976.

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

AFFIRMED.

      . MOB 670, Folio 9; MOB 670, Folio 10.


text:
    John DANE, Jr. v. William M. JUSTICE, Jr., Clerk of Court and Doucet Brothers Construction Co., Inc.
    No. 8487.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Roy L. Price, Metairie, for plaintiff-ap-pellee.
    Samuel S. Dalton, Jefferson, for Doucet Bros. Construction Co., Inc., defendant-appellant.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

This is an appeal from a judgment ordering the Clerk of Court for the Parish of Jefferson to cancel and erase a notice of lis pendens from the mortgage records of his office.

The facts are not in dispute. By act of sale dated March 5,1976 plaintiff purchased from Tomeny Construction Company, Inc. Lots 13 and 14, Square A, and Lot 30, Square B, in Harahan Oaks, a subdivision in the City of Harahan, Parish of Jefferson. Prior to that time, on January 15, 1976, Doucet Brothers Construction Company, Inc., a defendant herein, recorded the notice of lis pendens in connection with a suit filed by said Doucet Brothers against plaintiff’s vendor, Tomeny Construction, which sought specific performance of an alleged option giving Doucet Brothers the right to purchase from Tomeny Construction certain immovable property including the lots involved in this mandamus suit for cancellation and erasure.

The suit referred to in the notice is entitled Doucet Brothers Construction Company, Inc. v. Tomeny Construction Company, Inc., La.App., 359 So.2d 712. In that suit we affirmed a trial court judgment dismissing Doucet Brothers’ demand.

As the suit upon which the notice of lis pendens is based has been dismissed, cancellation and erasure of that notice was proper.

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

AFFIRMED.

      . MOB 670, Folio 9; MOB 670, Folio 10.

      . No. 8319 of our docket, handed down this day.


author: REDMANN, Judge.

text:
    Andrew BROWN v. WALLACE C. DRENNAN CO. and Commercial Union Insurance Company.
    No. 8778.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    William A. Summers, III, Metairie, for plaintiff-appellant.
    Charles A. Boggs, Sylvia Landry, Montgomery, Barnett, Brown & Read, New Orleans, for intervenor-appellant.
    Robert E. Leake, Jr., Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for defendants-appellees.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   REDMANN, Judge.

The trial judge’s reasons amply explain his decision and his reasons are supported by the record. The fact that the crane was used with no problem immediately after the accident dispels any supposition that a failure of its hydraulic system might have caused it to suddenly fall and knock down the scaffold.

Affirmed.


author: BEER, Judge. LEMMON, Judge, SCHOTT, Judge,

text:
    TRUSTEE CORPORATION and Illinois Central Gulf Railroad v. William P. ALLEN, Sr. and Keller Construction Corp.
    No. 8886.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.

      Lemle, Kelleher, Kohlmeyer & Matthews, Julian H. Good, Alan H. Goodman and Ira J. Middleberg, New Orleans, for plaintiffs-appellants.
    Clayton J. Borne, III, Metairie, for defendant-appellee.
    Before LEMMON, SCHOTT and BEER, JJ.
   BEER, Judge.

Trustee Corporation and Illinois Central Gulf Railroad (hereafter, “I. C.”) seek to enjoin William P. Allen, Sr. from preventing their use of spur tracks which cross Allen’s property.

In 1948, Keller Construction Corporation, then owner of all the property here involved, permitted I. C. to construct a spur track. Though appellants contend this agreement was recorded, we find no indication of that in the record before us.

In 1953, Keller sold approximately one-half of its property to Trustee Corporation. The spur track ran across the part retained by Keller and onto the part sold to Trustee. At the time of the act of sale (Keller to Trustee), an agreement providing for use of the spur track between Trustee, Keller and I. C. was confected. The last paragraph of that unrecorded agreement provides:

“10. The Railroad Company and Keller Construction Corporation, party hereto, mutually agree that that certain agreement dated February 4, 1948, between them, covering the same subject matter as this agreement, shall be cancelled as of the date hereof.”

In August, 1972, the property still owned by Keller was resubdivided, and a survey of same (approved by the City Planning Commission) was recorded in the conveyance and mortgage records of Orleans Parish. That recorded survey depicts a spur track running across Keller’s property and onto Trustee’s property.

In September, 1972, Keller sold a part of the recently subdivided property (over which the spur track ran) to Allen. The description of the property sold to Allen is detailed in the act of sale and makes reference to the recorded survey (which depicts the spur track).

This litigation was precipitated when Glazer Steel Corporation (whole owner of Trustee) requested that I. C. deliver a railroad car to the spur track adjacent to their warehouse which is located on the Trustee property. Permission for the car to cross from the mainline to the warehouse siding by going over the tracks located on the Allen property was denied by Allen.

Thereupon, Trustee and I. C. sued to enforce the alleged existent servitude by Temporary Restraining Order and also prayed for a court-ordered survey to fix the exact location of the servitude. Alternatively, they sought damages in the amount of $75,000.

A TRO issued, restraining Allen from preventing the use of the spur track, but a preliminary injunction was, thereafter, denied. From the judgment denying the preliminary injunction, appellants devolutively appeal, urging three alternative grounds for the alleged servitude upon which the preliminary injunction depended:

1. Conventional acquisition of the right-of-way of which defendant Allen was allegedly put on notice by reference in the deed by which he acquired to the 1972 plot plan, recorded in the public records, which depicts a spur track, so labeled, crossing the subject property.
2. Appropriation by unopposed use and occupancy under the St. Julien doctrine.
3. Acquisition under La.Acts 1976, No. 504, now codified as La.R.S. 19:14 (Supp.1977).

The 1972 survey, which was recorded at the time of resubdivision of the property, depicts two lines, labeled “spur track,” crossing Lot N. Allen acquired his property (described as Lot N) subject to all servi-tudes with which it might be encumbered, and the act of sale makes specific reference to the recorded survey map which depicts the spur tracks. This recordation plus the obvious physical factors here existent constitute a strong basis for determining that there was a servitude in existence. Note: Werk v. Leland University, 155 La. 971, 99 So. 716 (1924). Accord, O’Reilly v. Poche, 162 So.2d 787 (La.App. 4th Cir. 1964).

We are of the view that Allen purchased Lot N with sufficient public records notice and, in fact, actual physical notice, of the existence of the spur track servitude. But even if we did not conclude that a servitude existed on this theory, appellants’ alternate theories have merit:

The St. Julien doctrine, stemming from St. Julien v. Morgan’s La. & R. R. R. & S. Co., 35 La.Ann. 924 (1883), permitted the appropriation of a right of way by a public or quasi-public corporation where the landowner has consented or acquiesced in the construction. It appears to have operated independent of the public records doctrine. See: Webster Sand, Gravel & Constr. Co. v. Vicksburg So. & Pac. Ry., 129 La. 1096, 57 So. 529 (1912). See also, Comment, 51 Tul.L.Rev. 375, 378 (1977). To make the doctrine operative, the property had to be used for some public purpose, not exclusively in the interest of a private enterprise. But, where public benefit by the transportation of goods was the end result, spur tracks serving private enterprises were considered a public purpose. See: Gumbel v. N. O. Terminal Co., 186 La. 882, 173 So. 518 (1937); Webster Sand, Gravel & Construction Co. v. Vicksburg S. & D. Ry., 129 La. 1096, 57 So. 529 (1912); Tremont & Gulf Ry. Co. v. Louisiana & A. Ry. Co., 128 La. 299, 54 So. 826 (1911); Louisiana & A. Ry. v. Louisiana Ry. & Navigation Co., 125 La. 756, 51 So. 712 (1910).

However, Lake, Inc. v. Louisiana Power & Light Company, 330 So.2d 914 (La.1976), prospectively overruled St. Julien and makes its applicability questionable here. Nevertheless, State Dept. of Highways v. Thurston, 338 So.2d 154 (La.App. 2nd Cir. 1976), decided after Lake but involving facts which occurred before Lake (similar to the situation here existent) noted:

“The Supreme Court gave prospective effect of its ruling in Lake, and thus the doctrine is applicable to the instant case

Since La.R.S. 19:14 was obviously passed in reaction to the Lake decision, we believe that it gives legislative approval (with slight variations) to the prospectively overruled, jurisprudentially created St. Julien doctrine. See, e. g. A. N. Yiannopoulos, “The Work of the Louisiana Appellate Courts for the 1975-1976 Term: Property,” 37 La.L.Rev. 317, 326 (1977); Comment, 51 Tul.L.Rev. 375 (1977); Note, 22 Loy.L.Rev. 1066 (1976).

Paragraph 2 of the La.R.S. 19:14 provides:

“In the case where any corporation referred to in Section 2 of this Title has actually, in good faith believing it had the authority to do so, taken possession of privately owned immovable property of another and constructed facilities upon, under or over such property with the consent or acquiescence of the owner of the property, it will be presumed that the owner of the property has waived his right to receive just compensation prior to the taking, and he shall be entitled only to bring an action for judicial determination of whether the taking was for a public and necessary purpose and for just compensation to be determined in accordance with Section 9 hereof, as of the time of the taking of the property, or right or interest therein, and such action shall proceed as nearly as may be as if the corporation had filed a petition for expropriation as provided for in Section 2.1 of this Title.”

Though appellee argues that the statute should be invalidated for the same reasons that the Supreme Court invalidated the St. Julien doctrine in Lake, we question the merit of this contention. The court in Lake did not overrule the St. Julien doctrine on constitutional grounds, but on the basis of its inconsistency with codal provisions. La.Acts 1976, No. 504, as a legislative enactment, now has equal status with the codal provisions.

If the St. Julien doctrine is applicable here (since the taking by ICRR occurred before the Lake decision), then the preliminary injunction should have been granted. If not, then La.R.S. 19:14 should be applied and would dictate the same result.

Accordingly, we are of the view that appellants have established their right to a preliminary injunction which would prevent Allen or his agents, successors, etc. from inhibiting their use of the spur track which is the subject matter of this litigation, and, in that regard, the judgment of the Civil District Court for the Parish of Orleans, denying the preliminary injunction, must be overruled. That is the only issue before us in this appeal.

Consequently, the judgment of the Civil District Court for the Parish of Orleans, denying the preliminary injunction, is reversed, and this matter is remanded to that court for further proceedings consistent with this opinion. Costs of this appeal are taxed to the appellee.

REVERSED AND REMANDED.

LEMMON J., concurs and assigns reasons.

SCHOTT, J., concurs in the result.

LEMMON, Judge,

concurring and assigning reasons.

An act affecting immovable property shall not have effect against third parties until the act is recorded. C.C. art. 2264. Thus, even if the third party has actual knowledge of the existence of an unrecorded servitude, the servitude has no effect upon that party.

The record contains no evidence of recor-dation of the 1948 spur track agreement between Keller and the railroad. Since there is no evidence that the act which created the servitude has ever been recorded, defendant cannot be affected by the unrecorded servitude, irrespective of his knowledge of the actual existence of the spur track.

The more difficult question is whether the document executed by Keller and plaintiff, and recorded and indexed in both names, created a servitude by destination under C.C. art. 767. However, we need not decide that question.

The good faith construction of the spur track in 1948 with the knowledge and consent of the owner established a servitude for the spur track under the St. Julien doctrine, and the decision in the Lake case has no application to this servitude established before the Lake decision.

SCHOTT, Judge,

concurring in the result.

Being of the opinion that the recordation of the 1972 survey in connection with the re-subdivision of the property, together with the specific reference to the recorded survey made in the act of sale by Keller to appellee constituted notice under the public records doctrine of the existence of the servitude over the property purchased by appellee, I concur in the reversal of the judgment of the trial court.

      . The pictures of the spur track across Lot N (apparently placed into the record at the time of hearing of the TRO since they are attached to one of the affidavits submitted at that time) make it difficult to conclude that any purchaser would be ignorant of their presence on the land.

      . The document stated that the survey plat was being registered and “made part of title chain.”


author: GAUDIN, Judge.

text:
    Johnnie THORTON v. LANDIS CONSTRUCTION COMPANY, INC., and Highlands Insurance Company.
    No. 8906.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Neil Levith, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, C. Edgar Cloutier, New Orleans, for Highlands Insurance Co., defendant-appellee.
    Before STOULIG, BEER and GAUDIN, JJ.
   GAUDIN, Judge.

Petitioner, Johnnie Thorton, instituted this suit against his employer, Landis Construction Company, Inc., and its insurer, Highlands Insurance Company, for workmen’s compensation benefits as a result of an injury sustained on September 30, 1976.

Following a trial before a commissioner of the Civil District Court in Orleans Parish, judgment was rendered giving Mr. Thorton benefits for one week, from October 1 to October 7, 1976.

Only Highlands Insurance Company was cast in judgment as Landis Construction Company was never served with a copy of the petition.

Mr. Thorton appealed, seeking further benefits; and Highlands is also before this court, contending that plaintiff was not entitled to the one week award.

We are of the opinion that the judgment was basically correct and we affirm, with a slight modification.

Mr. Thorton was hurt while handling scaffold boards. Shortly after the accident, he was taken to Dr. Arthur Axelrod, a general surgeon. The initial diagnosis was a strain of abdominal muscles.

Dr. Axelrod or an associate saw Mr. Thorton on October 4, 8 and 11, 1976. On October 4th, and again on October 11th, Mr. Thorton said he was “spitting up blood,” and Dr. Axelrod felt that this was a far more serious problem than any muscle strain . . . ”

By October 11th, Dr. Axelrod was of the opinion that the muscle strain had healed, there being no objective findings. However, Dr. Axelrod advised Mr. Thorton to see his family physician because of the bleeding, as he (Dr. Axelrod) felt that this was neither caused by nor related to the September 30th incident.

On November 3,1976, Dr. Axelrod examined Mr. Thorton again and performed various tests. Dr. Axelrod’s testimony clearly indicated that he felt Mr. Thorton was faking, and it was the doctor’s opinion that Mr. Thorton was “. . . not disabled from work.”

Mr. Thorton was seen finally by Dr. Axel-rod on January 6,1977. There was nothing wrong with Mr. Thorton, Dr. Axelrod stated, and he could return to heavy laboring duties.

Dr. Charles Mary, a specialist in internal medicine and gastroenterology, first examined Mr. Thorton on October 18, 1976, and “. . . diagnosed him as having a strain or rupture of his rectus abdominalis muscle of the lower portion.”

All of the laboratory tests and x-rays were normal, Dr. Mary said, as was the result of an electrocardiogram done the following week when Mr. Thorton complained of pains in his chest.

On November 12, 1976, Dr. Mary said that Mr. Thorton “. . . had developed gastritis from both the pain and the worry over his condition.”

Dr. Mary recommended an orthopedic surgeon on December 28, 1976, when Mr. Thorton’s symptoms persisted. Dr. Mary saw Mr. Thorton for the last time on January 11, 1977, at which time Mr. Thorton, was still complaining.

Dr. Kenneth Adatto performed an orthopedic examination on September 30, 1976, and concluded that Mr. Thorton had “. . .a rectus abdominus pull which is responding slowly to conservative care.” Dr. Adatto’s x-rays were within normal limits, as was his examination of Mr. Thorton’s back.

Dr. Phillip Meyers did a thermographic study of Mr. Thorton’s abdomen on October 29, 1976. The thermograms were normal.

Dr. Ronald Martz, like Dr: Mary a specialist in internal medicine and gastroenter-ology, saw Mr. Thorton on January 6,1977. Dr. Martz stated that Mr. Thorton’s complaints were subjective, and that there were no objective findings compatible with continued strain of the rectus abdominis muscle.

Obviously, the adduced medical evidence was contradictory to a significant degree. In deciding the case as he did, the commissioner apparently relied strongly on Dr. Ax-elrod’s testimony, which was supported by Dr. Meyers’ thermograms and Dr. Martz’s evaluation. There being considerable medical evidence to substantiate the judgment, we cannot say that manifest error was committed.

However, because LSA-R.S. 23:1224 provides that no compensation shall be paid for the first week after injury unless disability continues for six weeks thereafter, the judgment is amended to eliminate benefits for the October 1 to October 7, 1976, period.

Appellant is to pay all costs.

AMENDED AND AFFIRMED.


author: LEMMON, Judge. BEER, Judge,

text:
    Sidney A. DUFFOUR v. The HARTFORD CASUALTY INSURANCE COMPANY and X-Ergon Corporation.
    No. 8988.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.

      Kronlage, Dittmann & Caswell (Charles A. Kronlage, Jr.), New Orleans, for plaintiff-appellee.
    Ethel Harriet Cohen, New Orleans, for defendants-appellants.
    Before LEMMON, SCHOTT and BEER, JJ.
   LEMMON, Judge.

Defendant employer and its workmen’s compensation insurer have appealed from a judgment awarding plaintiff benefits for total and permanent disability. The principal issue is whether he was totally disabled within the contemplation of the Workmen’s Compensation Act prior to the 1975 amendments.

I

After working in the sales field for 20 years, plaintiff was employed by defendant in July, 1974 as a welding equipment salesman. His duties included calling on 8 to 20 customers daily, some calls requiring him to walk 6 to 8 blocks; carrying a sample case, which including contents weighed 38 to 45 pounds, and a propane torch and solder gun kit, which weighed an additional 18 pounds; and demonstrating the equipment by welding intending or stooping positions and by hammering the welded area with large shop hammers.

In September, 1974 plaintiff experienced a sharp pain in his back when he lifted his sample case from his automobile. After conservative treatment, followed by a mye-logram, he underwent surgery for a ruptured lumbar disc in October.

Plaintiff recovered satisfactorily and was discharged in June, 1975 by the orthopedic surgeon as having reached maximum medical rehabilitation. The doctor assigned a 20 to 25% permanent disability of the body as a whole. Because of the probability of future settling of the joints, the doctor advised plaintiff to avoid laboring activity such as lifting, climbing, bending or carrying weights in excess of 25 pounds, since such activity would aggravate the condition and increase the probability that a fusion would be required.

In the meantime defendant had terminated plaintiff’s employment in January, 1975. Plaintiff testified that he sought other employment through newspaper advertising and employment agencies, but the prospects in the sales field were few because of his physical limitations. In February, 1976, more than a year after his termination, he finally obtained a job selling advertising, mostly involving telephone sales, and at the time of the February, 1977 trial he was earning higher wages at that job than he had earned with defendant employer.

II

Defendants contend plaintiff is not totally disabled because his diversified sales background would allow him to transfer to other sales fields which do not require lifting and carrying heavy weights. On the other hand, plaintiff argues that most sales jobs require carrying of demonstration kits, products or other sales materials, or lengthy periods of driving, or other activities beyond his limitations. Neither side presented employment experts to support these assertions.

Compensation liability is based on a medical disability which produces a degree of inability to earn wages. From a physiological standpoint plaintiff was only partially disabled. But from a legal standpoint a claimant is totally disabled if the partial disability produces total inability to do work of any reasonable character. R.S. 23:1221(2).

Under early judicial decisions interpreting this statutory language a workmen’s compensation claimant was held totally disabled if he was unable to do work reasonably of the same kind and character as that which his training, education, experience and status in life qualified him to perform. Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9 (1932). And more recent decisions have emphasized Knispel’s statement that a skilled employee is deemed totally disabled when he is unable to perform work of the same or similar description to that which he performed before the accident. Futrell v. Hartford Acc. & Indent. Co., 276 So.2d 271 (La.1973). The Futrell case further points out that the ultimate determination involves the effect of the partial disability on the worker’s capacity to earn income.

Plaintiff meets the Futrell test if his field is regarded as the specialized or skilled selling of welding rods or any other product which requires the same type of stress from standing, lifting and stooping. And even if his field is regarded as unskilled general sales work, he may likewise be considered as totally disabled because his condition places him at a substantial disadvantage in competing with able-bodied workers in the flexible common labor market. Ball v. American Marine Corp., 245 La. 515, 159 So.2d 138 (1963).

The Futrell decision also noted that a worker’s capacity to earn income should not be determined by considering his disability only under ideal conditions. When the capacity of the plaintiff in this case is considered in relation to the prevailing conditions in the market, as exemplified by his inability to obtain employment for more than a year following his termination, we cannot say that the trial court erred in concluding he was at a substantial disadvantage in competing with able-bodied salesmen for the available positions.

When all of the pertinent factors are considered, there is sufficient evidence in this record to support the trial court’s conclusion that plaintiff was totally disabled within the contemplation of the workmen’s compensation act. In this determination the trial court is properly accorded great discretion.

Ill

The trial court also awarded penalties and attorney’s fees.

After paying maximum benefits for 88 weeks, defendant insurer reduced the payments to the minimum weekly amount. The insurer’s representative testified that she reduced the amount because “the case was ready to settle” and the reduction would probably force settlement.

If plaintiff did not receive all compensation benefits to which he was clearly entitled under the evidence then available, the arbitrary decision to reduce benefits was a flagrant violation of the insurer’s statutory duty, and the penalty provision was designed specifically to prevent such conduct. Therefore, since plaintiff was clearly entitled at least to continued benefits for either partial disability for 300 weeks under R.S. 23:1221(3) or for serious permanent impairment of the usefulness of a physical function for 100 weeks under R.S. 23:1221(4)(p), the penalty was properly imposed. Furthermore, the amount of $5,000.00 awarded for attorney’s fees was not an abuse of discretion, based on the services apparent from the record and the results obtained.

Plaintiff’s answer to the appeal requests additional attorney’s fees for services required since the rendition of the trial court judgment. Such an award is proper, since defendants have still not paid the minimum amount to which plaintiff was clearly enti-tied. The requested amount of $500.00 is supported by the record.

Accordingly, the judgment of the trial court is affirmed. Additional attorney’s fees in the amount of $500.00 are awarded for services necessitated by this appeal.

AFFIRMED, ADDITIONAL ATTORNEY’S FEES AWARDED.

BEER, J., dissents and assigns reasons.

BEER, Judge,

dissenting.

Mr. Duffour earned his living as a salesman. His employment history spans over 20 years in this general endeavor. Consistent therewith, he took a job with X-Ergon Corporation as a welding equipment salesman and, within a couple of months of his having been employed by that company, experienced the incident which led to disc surgery which, in turn, resulted in the 20% disability estimate that now forms the basis of the majority’s view that he is permanently and totally disabled.

His recovery from disc surgery was totally satisfactory, but the fact of the performance of the surgery itself was the basis for the percentage estimate of disability. Essentially the only objective medical result of the successful surgery was the admonition that Duffour should avoid excessive weight lifting and extensive climbing and bending.

Sales work which requires that the salesman, himself, actually carry an unusually heavy item on a more or less continuous basis could, perhaps, be described as one area of sales type work that could eventually cause Mr. Duffour to experience such a degree of discomfort as to reduce his effectiveness.

Yet, with the exception of this extremely slight and unlikely to be experienced limitation, the broad spectrum of sales activities is still fully open to him.

In this technological era, some sales oriented jobs have clearly .become skilled jobs filled by highly skilled personnel. However, there is no showing on this record that Mr. Duffour’s skill is in any way impaired— his only restriction, if any he has, is limited to sample case carrying under certain circumstances — and that only if the sample case be unusually heavy. These observations are not intended to belittle or make light of those restrictions within which Mr. Duffour must operate, and I take no issue with the conclusion that he may experience some modest percentage of diminution in his pre disc surgery ability to lift and carry sample cases of substantial weight. Yet, I am unable to reconcile myself to the majority’s view that such restrictions can fairly be deemed to constitute permanent and total disability by — at least in my view — any fair and reasonable interpretation and application of those terms. The record seems to me to bear this out, for, at the time of trial, Mr. Duffour was actually earning a considerably higher income than that which he earned at the time of the incident which forms the basis for this lawsuit. Most compelling — in my view — is the clear, uncontested fact that as he continues to earn at a much higher rate than before the accident, he is still working in the same general field — sales.

Thus, the record confirms that Mr. Duf-four, with his diversified sales background, had transferred his sales abilities from one product to another and, in so doing, had broadened his economic base appreciably. Is this an instance of permanent total disability? I think not.

Were he a manual laborer with the usual moderate estimate of percentage disability “of the body as a whole” that seems, almost invariably, to follow disc surgery (regardless of its totally successful result), I would be inclined to agree with the majority that such estimate of percentage disability might — given the benefit of the considerable doubt that these type estimates elicit— sufficiently restrict his ability to compete in the common labor market and, thus, establish his claim for permanent total disability.

But, here, where the record clearly and categorically underlines the fact that Mr. Duffour was obviously earning greater income at the time of trial than at the time of his alleged injury in the same field of endeavor — sales—and where there is no evi-dentiary showing that whole broad spectrum of salesman-type jobs are seriously preempted by his alleged disability, I cannot agree in the finding that he is permanently and totally disabled from doing work of any reasonable character.

In my view, such a conclusion, based on the facts of this case, constitutes judicial distortion of that much misused and misunderstood phrase.

I respectfully dissent.

      . Two other orthopedic specialists examined plaintiff for purposes of evaluation, but their testimony was not substantially different from that of the treating physician.

      . The author notes his view that the 1975 amendments were enacted specifically to resolve more equitably this type of case. During the weeks that the partially disabled employee is working and earning his regular wages, he has no need for compensation. But during the weeks that the employee is unable to work because of the medical disability or because his medical condition prevents him from obtaining employment in the market, he needs and is entitled to compensation, and the purpose of the statute is accomplished.
      Application of seldom-used R.S. 23:1221(3), as in effect prior to the amendments, would have achieved substantial justice in this case, except for the limit of 300 weeks. The amended statute removes this limitation.


author: LEMMON, Judge.

text:
    BANK OF LOUISIANA IN NEW ORLEANS v. Steven J. CHARIA.
    No. 9040.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.

      Richards & Hoepffner (Charles E. Richards), New Orleans, for plaintiff-appellee.
    Santo A. Dileo, Carrollton, for defendant-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims (Rutledge C. Clement, Jr.), New Orleans, for third-party defendants-appellees, Howard, Weil, Labouisse, Friedrichs, Inc. and Vincent J. Liuzza, Jr.
    Before LEMMON, SCHOTT and BEER, JJ.
   LEMMON, Judge.

This is an appeal from a judgment based on a jury verdict which dismissed Steven Charia’s reconventional demand against the Bank of Louisiana for damages resulting from the allegedly unauthorized release of pledged shares of corporate stock.

The litigation began in 1973 when the Bank sued Charia on eight promissory notes. Charia (then represented by other counsel) reconvened, alleging various damages resulting from the Bank’s negligence, breach of trust, breach of contract and violation of federal regulations by releasing in 1968 the stock pledged as collateral for the notes. The Bank then filed a third party demand against Vincent Liuzza and his employer, Howard, Weil, Labouisse, Friedricks, Inc., a brokerage firm, alleging that the Bank had released the stock in reliance on Liuzza’s representations that he was acting as Charia’s agent. In turn the broker third-partied Charia, alleging express authorization to sell the stock and buy other, and Charia third-partied Liuzza and Howard, Weil, alleging their unlawful taking of the stock.

The principal demand was severed and tried before the judge, who rendered judgment in favor of the Bank in May, 1976. Charia did not appeal and eventually paid the judgment. On November 18, 1976 a summary judgment was rendered dismissing Charia’s third party demand against Liuzza and Howard We}l on the basis of prescription. Again Charia did not appeal.

Charia’s reconventional demand was tried on November 29, 1976 before a jury, which found in favor of the Bank. Charia has appealed from this judgment, and the dismissal of Charia’s reconventional demand against the Bank is now before this court.

Liuzza’s Authority

The principal question decided by the jury was whether Liuzza was authorized by Charia to receive delivery of the pledged stocks.

Liuzza had represented Charia in stock transactions in 1966 and 1967, while Liuzza was with another brokerage firm. In December, 1967 Liuzza and two other registered representatives moved to Viguerie, Hayne & Chaffe (VH&C), which subsequently merged with Howard Weil. Liuz-za’s relationship with Charia thereafter is in substantial dispute.

Liuzza testified: Charia’s investments during 1966 and 1967 were largely unsuccessful, and Charia had been reluctant to make further investments. One reason for his transfer to VH&C was to have available the research services of Clark Dodge, a VH&C corresponding firm, and he attempted to convince Charia to invest strictly in accordance with Clark Dodge’s recommendations on a trial basis. On April 30, 1968 Charia finally allowed him to sell some stock rights, which he accomplished the following day, the check for $50.45 being delivered to Charia and negotiated. He and Charia then reviewed the portfolio and decided to sell certain stocks (held in pledge by the Bank) based on Clark Dodge’s recommendations as soon as those stocks came within the recommended range and to use the money generated by these sales to purchase other stocks, also in accordance with Clark Dodge’s recommendations. Charia remarked that he would never trade with him again if these investments were not successful. In May, June and July he was in almost daily contact with Charia, and his sales assistant furnished Charia with many quotations and numerous brochures and publications. On June 3 and 4 he sold certain stocks with verbal telephone authority from Charia (virtually 100% of his sales and purchases for customers were based on telephone authority), and written confirmations of these transactions were mailed immediately to Charia, who admitted receipt. Furthermore, the transactions appeared on the regular monthly statements, which Charia also admitted receiving. Thereafter, on June 3 and 14 he purchased other stocks in 100-share lots (one being Penn Central Railroad), pursuant to telephone authority from Charia, and finally on June 18 he purchased with telephone authority 44 shares of another corporation with the remaining proceeds of the sales, leaving Charia with a credit balance of $30.65. As with the sales, the purchases were made when the stocks reached the level recommended by Clark Dodge, and the transactions were confirmed immediately in writing and later on the monthly statement. Charia did nothing to repudiate these sales and purchases. On July 11, pursuant to a Clark Dodge recommendation and with Charia’s telephone authority, he sold the 100 shares of Penn Central, realizing a profit of $7.00 per share, and then on July 15, based on similar recommendation and authority, he repurchased 100 shares of Penn Central when the stock dropped to the level of the June purchase, leaving Charia with a credit balance of over $700.00. Charia was initially delighted with the Penn Central transactions and the immediate rise of another stock, but unfortunately the Penn Central shares continued to decline, as did the other stocks. In the meantime he had requested the Bank to deliver the stock held in pledge for the purpose of substituting the newly acquired stock. In the past, pledged stock that he had sold for Charia was either delivered to him by the Bank or by Charia’s runner or sometimes was picked up by him, and Charia told him to handle this transaction in similar fashion with the Bank. When the delivery of the stock sold in June, 1968 was unduly delayed, he recontacted the Bank, and the stock was finally delivered by the Bank on November 11, 1968. Meanwhile, back at Charia’s office after the decline of the stock in late July, Charia refused to accept his (Liuzza’s) phone calls, and he was told Charia never wanted to speak to him again. He continued to mail Charia information on the stocks, but did not hear from Charia again until the firm received a letter in November, 1968, in which Charia refused to sign stock powers after the Bank had released the stock.

Liuzza’s version was corroborated by his sales assistant and by another registered representative who had transferred to VH&C with him.

Charia’s version was: He did not authorize the sales and purchases by Liuzza in June and July, 1968. He first became aware that the Bank had released the stock to Liuzza when he received an April, 1969 letter from the Bank, advising that 100 shares of Penn Central were missing from collateral received in substitution for the released stock and that it was necessary to produce the stock or otherwise offset the margin deficiency. He replied by certified mail that he had not authorized VH&C to obtain any stock or the Bank to release any stock and demanded return in kind of the original stocks. He also forwarded to the Bank all stock dividends received thereafter.

On cross-examination Charia was confronted with a March, 1975 affidavit executed by him in connection with a motion for summary judgment, in which he stated he was unaware of the transactions until he received the November, 1968 request from VH&C to sign stock powers, but in which he also mentioned receipt of monthly statements showing the transactions. Charia then explained that he had repudiated the transactions in a July 8,1968 letter to Liuz-za (which Liuzza denied receiving) and that although he had received the written confirmations and was thus aware immediately after the transactions that the stock had been sold, he did not think the Bank would release the stock without his authority and did not learn the Bank had done so until the April, 1969 letter. Charia also admitted introducing Liuzza at the Bank as his broker, but denied authorizing release of any stock to him.

Three Bank employees testified that when Charia’s pledged stock was sold, it was usually released on his telephone authority to his broker. Although no verbal authority was obtained from Charia for release of this stock, Charia had taken Liuzza to the Bank and had represented that Liuz-za was the broker who handled his stock.

As to the disputed letter of July 8, 1968, Charia swore that he found a copy in November, 1975, denying the letter was an afterthought which was not really confect-ed in 1968. Other evidence, however, showed Charia had a conference with the Bank president on July 10, 1968 and was meeting with him weekly at the time, but had never mentioned the unauthorized sale of the pledged stock until the April, 1969 letter. Moreover, the admittedly received sales confirmations served to inform Charia, as a sophisticated investor, that the stock would have to be released by the Bank to complete the transaction.

On the basis of the evidence discussed above the jury could reasonably have concluded that Charia authorized Liuzza to sell the stock pledged to the Bank and that the express authorization carried with it the authority to obtain the pledged stock from the Bank for the purpose of selling and substituting other stock. Furthermore, under the overall circumstances Charia had clothed Liuzza with the apparent authority to obtain delivery of pledged stock for the purpose of an authorized sale. Therefore, if this record is properly constituted and the jury was properly charged, there is adequate support for the jury’s credibility determination.

Evidentiary Rulings

As Charia correctly points out, little weight should be accorded to the resolution of conflicting testimony by a jury verdict which has been substantially influenced by inadmissible evidence or by excluded admissible evidence. In this regard Charia first argues that his attempt to prove the disputed July 8 letter was prejudiced by the trial judge’s refusal to allow use of depositions to impeach the testimony of Liuzza and his sales assistant.

While prior inconsistent statements may be used to impeach the credibility of a witness, the determination of whether the statement is sufficiently inconsistent to be presented to the jury on the issue of credibility is within the trial judge’s discretion. At trial Liuzza denied receiving the July 8 letter. In the deposition excluded by the trial judge Liuzza stated he first became aware that Charia denied his authority “(m)uch later” when his firm received a letter from Charia. In the same answer Liuzza went on to discuss Charia’s unhappiness with the market decline in July and Charia’s refusal to talk to him in late July or early August, but he never mentioned July as the date of Charia’s letter disputing his authority. Since Liuzza’s deposition statement more probably referred to Cha-ria’s November, 1968 letter to the firm denying Liuzza’s authority, we agree there was no inconsistency between the deposition statement and the denial of receipt of the July 8 letter. The deposition was therefore properly excluded.

Liuzza’s sales assistant, who opened and screened all of his business mail, also denied receipt of the letter in her trial testimony. Her excluded deposition statement, which referred to second hand information as to when Charia first denied Liuz-za’s authority, was not contradictory of her personal knowledge that she had never seen the July 8 letter.

Charia also attempted to introduce testimony as to the practice of another brokerage firm in 1968 when a customer failed to deliver stock. This evidence was excluded as immaterial, and we find no error in that ruling.

Charia further attempted to present opinion evidence by an expert in the stock brokerage business. The trial judge refused to allow hypothetical questions on the basis that an expert who had not heard all of the testimony in this type of case could not express an opinion which would be of value to the jury.

An expert witness ordinarily can state his opinion in answer to a hypothetical question that assumes facts already in evidence. However, this witness was presented for the stated purpose of outlining the proper method of handling stock transactions, particularly with regard to liquidation of transactions. Since Charia’s claim against Liuzza and Howard Weil had been dismissed and his only remaining claim was against the Bank, it is difficult to perceive how the Bank’s liability for release of the stock to a person representing himself as Charia’s agent would be affected by evidence that Liuzza should have liquidated the transaction when the stock was not delivered by or shortly after the settlement date. If Liuzza was authorized to make the sale and to obtain delivery of the stocks, his contributing to any delay in delivery may have been a violation of security brokerage regulations (discussed later), but was not pertinent to the agency determination. We conclude Charia has not demonstrated any prejudice from the trial judge’s refusal to allow this evidence.

Jury Instructions

Charia’s first complaint is that the jury instructions gave the overall impression that Charia’s granting Liuzza authority to sell the stocks was equivalent to granting him authority to obtain delivery of the stocks from the Bank. In giving the instructions, the trial judge reviewed general agency law and then specially instructed the jury on the doctrine of apparent authority and on the duty of the Bank to safeguard pledged securities. We find no merit in this assignment of error.

Finally, Charia’s principal thrust in the entire appeal is that the evidence clearly establishes the Bank violated Regulation U (12 C.F.R. 221 et seq.) with regard to loans for the purpose of purchasing registered securities and Liuzza and Howard Weil violated Regulation T (12 C.F.R. 220 et seq.) with regard to extension of credit to a customer by a member of a national securities exchange. In this respect Charia assigns as error the failure to instruct the jury with regard to these federal regulations. Charia argues that regardless of any agency relationship Regulation U was an absolute prohibition against the Bank’s release of the pledged stocks.

We view the alleged violations of Regulation T and U as issues separate and apart from the issue of damages caused by the unauthorized release of the stocks. The legal consequence of a violation of these regulations is that the rights under the contract of the party in violation are voided. 15 U.S.C. § 78g.

The rights of the Bank under the contracts, which were the promissory notes, were judicially determined at the trial of the principal demand, and Charia offered no defense based on Regulation U violations. The judgment on the principal demand is now final and definitive, and this court has no jurisdictional power and authority to reverse or modify that judgment. Perhaps if the notes had been paid without a judicial determination of the Bank’s right to collect on the notes, Charia would still have a cause of action to recover the payments based on violation of the federal regulations. But he cannot allow a judgment to be rendered on the principal demand determining the Bank’s right to collect on the notes and then assert in the trial of the severed incidental action a claim based on the invalidity of the Bank’s right.

The trial judge was correct in limiting the issue in the trial of the reconventional demand to damages caused by the unauthorized release of the stocks, and he properly refused to charge the jury as to Regulations T and U.

The judgment of the trial court is affirmed. All costs are assessed to appellant.

Affirmed.

      . Charia applied unsuccessfully for supervisory writs to this court and to the Supreme Court, complaining that the trial judge abused his discretion in granting the severance.

      . There was therefore no necessity to adjudicate the remaining incidental demands.

      .On the date this appeal was perfected the judgment dismissing Charia’s third party demand against Liuzza and Howard Weil had become definitive and had acquired the authority of the thing adjudged.

      . In the reconventional demand Charia sought, among other things, the return of these shares of stock or their value at the time of the May, 1969 demand letter.

      . Charia’s complaint that Liuzza and the Banks employees were allowed to testify as to their operations does not establish prejudice. This testimony was necessary to establish apparent authority, not to show the proper method of operating a stock brokerage firm.

      . Jurisdiction of violations of the regulations is vested exclusively in the federal district court. 15 U.S.C. § 78aa.


author: GULOTTA, Judge.

text:
    Nathan MERRIELL v. PATTISON/BAYOU PONTIAC CO., INC. and Porter Insurance Agency. BANK OF LOUISIANA v. Nathan MERRIELL.
    Nos. 9070, 9071.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.

      Patrick C. Kelley, New Orleans, for plaintiff-defendant-third party plaintiff-appel-lee, Nathan Merriell.
    James A. Smith, Lake Charles, for defendant-appellant, Pattison/Bayou Pontiac Co., Inc.
    Before GULOTTA, BEER and GAR-SAUD; JJ.
   GULOTTA, Judge.

In these consolidated suits, the Bank of Louisiana was awarded a judgment against Nathan Merriell in the sum of $2,564.86, the unpaid balance due on a loan for the purchase of an automobile. Judgment was also rendered in favor of Merriell and against Bayou Pontiac, Inc., the car dealer, in the sum of $3,564.86. Defendant Bayou Pontiac appeals; Merriell does not.

The facts are that on September 21,1972, Merriell purchased an automobile from Bayou Pontiac and executed a note and chattel mortgage providing for monthly payments over a three-year period. Included in the sale and mortgage was a charge of $188.00 for “Required Physical Damage Insurance” which included fire, theft and comprehensive insurance. According to the sale, the comprehensive coverage was for a term of 12 months. Although the insurance premium was collected by the automobile dealer, who was also an agent for the comprehensive insurance carrier, no comprehensive policy was issued to the purchaser. In the chattel mortgage, Merriell also paid premiums for life, health and accident insurance extending over the three-year term of the loan.

Merriell’s automobile was stolen and destroyed by fire in February, 1974, approximately five months after the expiration of the 12-month comprehensive policy coverage, had it been issued. Upon learning that no coverage existed for the theft and destruction of the automobile, Merriell discontinued payments on the bank loan.

In the resulting litigation, Merriell, in the third-party demand and in a separate suit against Bayou Pontiac, claimed that at the time of the purchase the salesman had told him, his wife and daughter (who were present at the time of the purchase) that he was being provided with three years’ full comprehensive coverage on the automobile. This claim is denied by the salesman who stated that he had explained to Merriell every item on the contract, which included a premium for only 12 months’ comprehensive coverage.

Recovery by a client against his insurance agent for loss suffered as a result of the agent’s failure to obtain desired insurance coverage is permitted when the agent’s actions warrant an assumption by the client that he is properly insured. Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973); Kieran v. Commercial Union Insurance Company of New York, 271 So.2d 889 (La.App.4th Cir. 1973). In such cases, plaintiff has the burden of proof. See Kieran v. Commercial Union Insurance Company of New York, supra.

Although no reasons were assigned by the trial judge, implicit in his judgment in favor of Merriell and against Bayou Pontiac is a credibility determination that a representation was made by the salesman to Merriell that comprehensive coverage would be provided for a period of 36 months and, although the chattel mortgage indicated coverage for a period of 12 months, that no policy was in fact issued to the purchaser. The record supports this credibility determination. Accordingly, we affirm.

Merriell, who had only the benefit of a third-grade education and who stated he was unable to read very well, testified that the salesman had told him he had full comprehensive coverage for a period of three years. His wife and daughter, who were present at the time the automobile was purchased, corroborated his testimony. Merriell had purchased an automobile from the same salesman on a prior occasion and testified that he had relied on the salesman to tell the truth.

Approximately six months after the purchase, Merriell was involved in an automobile accident and learned at that time that he had not been provided with comprehensive coverage although he had paid the premium. The damage to Merriell’s car was paid by the insurer of the other automobile involved in the accident. At this time Merriell purchased comprehensive coverage at a cost of $196.00 for a six-month period (March, 1973 to September, 1973) from an insurer to which Merriell had been referred by the automobile salesman. Subsequent to the expiration of this comprehensive coverage, the automobile was stolen. We might add that, significantly, a representative of the bank testified that comprehensive coverage on the automobile was required during the entire term (36 months) of the loan.

Considering the circumstances surrounding the purchase of the automobile, we conclude that Merriell was led to believe that comprehensive coverage was provided on the automobile over the entire term of the loan for which he had paid the required premium. The salesman could have dispelled this belief but was responsible for Merriell’s mistaken impression.

Bayou contends that Merriell learned, at the time of the automobile accident six months after the purchase, that no comprehensive coverage had been afforded. At that time he obtained from another insurer coverage, but only for a period of six months (March, 1973 to September, 1973). According to Bayou, it was Merriell’s failure to obtain comprehensive coverage for the remaining outstanding period of the loan that resulted in his (Merriell’s) loss. We reject this contention. Merriell paid for comprehensive coverage for a period of 12 months and received no coverage. He was advised by the salesman that he had coverage for the entire three-year period. Under such circumstances, he is entitled to recover from the auto dealer who acted as insurance agent but who failed to procure coverage as orally represented. See Karam v. St. Paul Fire & Marine Insurance Company, supra.

At the time he was referred to another insurance agency for the second purchase of the comprehensive insurance, Merriell reasonably could have been under the impression that coverage was being provided for the remainder of the three-year period. In the final analysis, this purchaser, because of the automobile salesman’s representations, obtained 6 months’ comprehensive coverage although he paid premiums totalling in excess of that required for coverage over a two-year period. The automobile was stolen and the loss incurred in February or March, 1974, within two years of the automobile purchase in September, 1972.

Under the circumstances, we find no error in the judgment of the trial court. Quantum is not in issue. The judgment is affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Kathleen Miller REYNIER and Jon A. Reynier v. DELTA WOMEN’S CLINIC, INC. and Calvin J. Jackson.
    No. 9083.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.

      Laborde & Brooks, John H. Brooks, New Orleans, for plaintiffs-appellants.
    Schoemann & Golden, Rudolph R. Schoe-mann, New Orleans, for defendant-appellee Delta Women’s Clinic, Inc.
    Lemle, Kelleher, Kohlmeyer & Matthews, Martin Hunley & John M. Sartin, Jr., New Orleans, for defendant-appellee Dr. Calvin J. Jackson.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiffs have appealed from a judgment dismissing their claim for damages resulting from alleged negligence on the part of defendant Jackson who performed an abortion on Mrs. Reynier at the defendant clinic on July 16, 1974.

After Mrs. Reynier arrived at the clinic some routine tests were done and a questionnaire on her medical background was completed whereupon the abortion was performed by suction and curettage to terminate her pregnancy, thought to be of six to eight weeks’ duration.

Following the abortion Mrs. Reynier was brought to a recovery room where she remained for approximately 90 minutes, and then departed to drive herself home. The entire visit to the clinic was uneventful and there were no complications.

As she was leaving the abortion clinic she was given some printed documents entitled “FOLLOW-UP INSTRUCTIONS” and “GETTING IT ALL BACK TOGETHER.” The FOLLOW-UP INSTRUCTIONS explained the two types of medication which were given to her, one an antibiotic and the other ergotrate to minimize bleeding and help the uterus to contract. The instructions contemplated mild cramping but advised that if severe cramping continues the woman was to call the clinic. Under the heading “THIS IS VERY IMPORTANT” the instructions stated:

“2. You may return to work the next day, but we recommend that athletics and strenuous activity be avoided for five days.
“4. You may experience light bleeding for some days after the procedure. During the next four weeks you may also have spot bleeding. . . ”

Further down on the instructions, under the heading “IMPORTANT: WHAT TO DO ABOUT FEVER, BLEEDING OR PAIN” was the following:

“Although we would like to be able to guarantee a perfect and uncomplicated recovery, abortion is not different from any other surgical operation and unavoidable complications, although infrequent, do occasionally occur. It is most important, therefore, that you know what to expect and what to do.”
“2. A less frequent complication is excessive BLEEDING: A small amount of bleeding occurs normally within the uterus (womb), and may cause a few cramps and brief increased bleeding as the uterus later pushes out some clots. You may need medication to help the uterus to contract. Continued heavy bleeding, severe cramps, and a high fever may indicate tissue retention which could require a repeat emptying of the uterus (this is a very rare complication).
“PLEASE CALL THE CLINIC IMMEDIATELY IF:
1. You have more bleeding than your normal period.
2. You continue to bleed longer than two weeks.
3. You have a temperature of 101 degrees (or over 100 degrees on three consecutive readings).
You have severe cramps or pain.
5. You have a discharge with a particularly unpleasant odor.”

On the other document, entitled “GETTING IT ALL BACK TOGETHER” the following was said:

“ . . . the easiest and best way to feel good quickly is to make an extra effort for the next two weeks and especially for the next few days: to get extra rest or at least a good night’s sleep, to lie down whenever you feel tired, to use common sense in achieving a balance between too much exercise or work and babying yourself, to eat regular balanced, nutritious meals.
DO: Get back to ‘normal’ life as soon as possible — your usual work and exercise or return to school (except for physical education for two weeks)
Eat whatever sounds appetizing (but not too heavy) as soon as you like after leaving the clinic.
Come back for a check-up at the appointment time arranged for.
Call US if you have or suspect any problems.
DON’T: Overtire yourself or take up unusual strenuous exercise in the next few weeks, (horseback riding, swimmong) Dont use Tampas until your next regular periods, as to do so now could promote infection.
Avoid swimming and douching until the bleeding has completely stopped or preferably two weeks. Avoid intercourse for FOUR WEEKS and, better still, until you are using a regular form of birth control. You can expect any “morning sickness” or breast tenderness to go away quickly, usually within two days.
1. Medicine: Two of the medications you are taking home with you are Tetracycline an antibiotic, and Ergotrate a drug which the uterus return to its normal size and helps lessen the bleeding. Both of these are important in avoiding problems and in feeling better faster. Take all tablets as directed.
“2. The bleeding you are having is the normal flowing out of the lining of the uterus which has built up for the past several weeks. It will seem like your regular period, but the length and heaviness of flow will not necessarily resemble your period at all. For many women it will be fairly light and last for only a few days. It may stop and start again. Or it will be quite heavy for a few days. But, if it continues for more than 4 days with no sign of slackening, Call us.
“3. Just to be careful, if any of the following occur, CALL US IMMEDIATELY at 581-2250 (answered 24 hours a day)
B. Cramps, even heavy cramping is normal for up to a few days, but sharp pain is not. Call at once if you’re in doubt.
C. For most women, the cramps you have right after the procedure will gradually subside over several hours. If yours are too severe to respond to the medication you’ve been given or do not improve after considerable rest or sleep, give us a call. The best way to handle even heavy cramps is to recline or sleep, allowing your body to relax.
D. For most women, normal bleeding after the procedure will be the same as or not much heavier than your regular period, and will usually decrease gradually over a few days. Call us if you experience continuous heavy bleeding for more than 4 days, have any fresh bright red bleeding after 48 hours.
E. Nausea, headaches, dizziness, chills? Call us.”

According to the testimony of Mrs. Rey-nier, by the time she arrived home she was in pain, weak and bleeding, so she called her neighbor for help, and the neighbor called the clinic from the Reynier apartment. In the meantime, Mrs. Reynier’s brother and his wife arrived at the apartment and, according to the testimony of all these witnesses, except; the neighbor who had died in the meantime, when she finally spoke to defendant Jackson on the telephone she presented to him a picture of heavy bleeding and a serious situation.

One of the contested legal issues arising at the trial was the substance of this telephone conversation. Jackson testified that he had no independent recollection of the telephone call but said that it was normal and routine for him to receive a telephone call from a woman on whom he had performed an abortion that morning and routinely gave the same advice that where the woman was complaining of bleeding; that is, he prescribed the drug methergine which is designed to cause the uterus to contract and reduce bleeding, and he told her to call back if her problem persisted.

Mrs. Reynier testified that the drug was prescribed, she had her husband fill the prescription, right after taking the drug the bleeding slowed down to a trickle, she felt fine and had no more problems for the next five days.

She and her husband proceeded with their vacation plans, and on Monday, the seventh day after the abortion, they flew to Denver on the first leg of their journey, but on the flight from Denver to Colorado Springs, their destination, she began to bleed profusely and upon arriving in Colorado Springs went to the hospital for treatment.

She had lost much blood and required a transfusion. After various tests were made an exploratory abdominal operation was conducted and a large hematoma was found in the peritoneum. A hysterectomy was performed on her and her recovery following this surgery was uneventful. From a medical point of view, however, she was left without the ability to bear children for which she claims damages along with a nervous or psychological condition, which she claims resulted from her experience.

Plaintiffs make the following specifications of error to this court:

“1. The trial court erred in refusing to recognize that confusing and misleading instructions, which form a part of postoperative care, and which fall below the standards prevailing in the community, can provide a basis for a cause of action in professional negligence.
“2. The trial court erred in failing to enforce the doctrine of informed consent.”

As to the first specification, plaintiffs are correct in that the documents furnished to Mrs. Reynier were a part of the post operative care provided to her and Jackson would be accountable if they were misleading and caused Mrs. Reynier’s subsequent problems.

In argument that the instructions were misleading, plaintiffs take several parts of the instructions out of context, such as “Call . If . You continue to bleed longer than two weeks” and couple that with Jackson’s admission that this is misleading since “[a] patient will bleed from three to four weeks.” Plaintiffs also produced the testimony of Dr. Gallo who was of the opinion that the instructions were misleading and Dr. Emeis from Colorado who characterized Jackson’s “Getting It All Back Together” as “a lousy piece of paper . . . poorly written.” However, the documents are written in English and cannot be read by isolating each sentence or paragraph from the context of the documents. When they are read as a whole the overriding message is for the woman to call if there is any problem which seems unusual to the reasonably prudent person.

In Mrs. Reynier’s case she was not misled in the first instance since she did call as soon as she got home and most of the experts agreed that Jackson’s prescription of an ergotrate to check the bleeding, together with his advice to her to keep in touch with him, was in keeping with the standards of the community.

Plaintiffs also argue that Jackson’s advice to resume normal life as soon as possible and simply to avoid “strenuous” exercise for the “next few weeks” was misleading because this did not warn her against going to Colorado. Pretermitting whether or not the reasonable person would undertake a vacation so soon after her abortion and the experience she had following the abortion, and pretermitting the question of whether or not a reasonable person would read these documents as encouraging such a trip under these circumstances, there is a reasonable inference from the evidence that Mrs. Reynier would have had exactly the same experience had she not gone to Colorado. In other words, we fail to see any causal relationship between the poor quality of Jackson’s documents and the «injuries sustained by Mrs. Reynier.

Plaintiffs invoke the doctrine of informed consent on their theory that Mrs. Reynier’s uterus was perforated in the course of the abortion, this was a risk known to Jackson but Mrs. Reynier was not informed of the risk in advance.

Before reaching the merits of this issue, however, we must address ourselves to defendants’ contention that the issue was not properly before the court in the first instance.

When plaintiffs’ counsel first sought to elicit testimony on the nature of consent given by Mrs. Reynier and the information furnished.to her as to the risks involved in the abortion, Jackson’s counsel objected on the ground that this issue was beyond plaintiffs’ pleadings. Defendants contend that the objection was improperly overruled and rely on LSA-C.C.P. Art. 1154 as authority for their position. The article provides as follows:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

Defendants are correct in that the issue was not raised in the plaintiffs’ pleadings. Furthermore, plaintiffs did not even attempt to amend those pleadings to include the issue at trial but we consider their inclusion of the issue in this court equivalent to a motion to amend after judgment pursuant to the article. However, because we have resolved the merits of the issue in defendants’ favor as discussed hereafter defendants were not prejudiced by the court’s failure to maintain their objection or at least continue the case.

The physician in Colorado who performed the hysterectomy on Mrs. Reynier testified that there was a perforation in her uterus which caused the bleeding. Most of the physicians who testified were of the opinion that this was the underlying cause of her problem. Furthermore, the experts were practically unanimous in their opinion that perforation of the uterus does occur in the process of an abortion or even a dilation and curettage procedure following an involuntary abortion despite the exercise of reasonable care on the part of the physician. This is so because the insertion of the instruments into the uterus is a blind procedure and at times the anatomical makeup of the woman or the condition of the tissue in the uterus makes it more susceptible to tearing than is ordinarily the case.

Because Jackson proved that a perforation of the uterus was a normal risk in an abortion despite the exercise of reasonable care he thereby avoided conviction of malpractice but, paradoxically, this same proof furnishes one of the elements necessary to support the doctrine of informed consent. However, we have concluded that plaintiffs failed to prove all necessary elements of the doctrine.

In order for this doctrine to apply it appears that three elements must be shown by plaintiff. First, all risks which reasonably tend to affect the patient’s decision must be revealed, Percle v. St. Paul Fire & Marine Insurance Co., 349 So.2d 1289 (La.App. 1st Cir. 1977) writ refused La., 350 So.2d 1218, or if the possibility is one that can be reasonably anticipated then the treating physician should so inform the patient, Delaune v. Davis, 316 So.2d 7 (La.App. 1st Cir. 1975). Second, plaintiff must show that she was uninformed of the risk prior to the surgery. Third, disclosure of the risk would have resulted in a decision against it, Percle v. St. Paul Fire & Marine Insurance Co., supra, Goodwin v. Aetna Casualty & Surety Co., 294 So.2d 618 (La.App. 4th Cir. 1974).

Assuming that the first two elements were shown by plaintiffs, on the third element plaintiffs’ proof was surely lacking. Mrs. Reynier had made up her mind that she wanted to have the abortion, having discussed the matter with her husband as well as her sister-in-law. All the medical testimony was to the effect that a perforated uterus was a normal risk, but the statistics given by the experts indicated that it was an infrequent occurrence and it was rare for a major blood vessel to be damaged. In the Percle case, the question was stated “in terms of what a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance.” From the overall impression of plaintiff’s testimony we cannot conclude that she would have foregone the abortion if she had been completely and in detail advised as to the possibility of a perforated uterus. Furthermore, the record is devoid of any testimony by Mrs. Reynier that she would have foregone the abortion had she known or been told of this risk. We might add that there is no evidence in the record to support a conclusion that a hysterectomy was something that could be reasonably anticipated by Jackson before he performed this abortion. Not even the doctrine of implied consent would necessarily have required the discussion with plaintiff as to this remote possibility.

The judgment appealed from is affirmed.

AFFIRMED.


text:
    Mary Perrin, wife of/and Robert F. PERRIN v. READ IMPORTS, INC., et al.
    No. 9137.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.

      Harry A. Rosenberg, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for plaintiffs-appellees.
    Robert H. Wood, Jr., Drury, Lozes & Curry, New Orleans, for defendants-appellants.
    Before REDMANN, GARSAUD and DE SONIER, JJ.
   REDMANN, Judge.

Fiat Motors of North America, Inc., appeals from a judgment of redhibition in favor of the purchaser of a new Lancia automobile against itself (as United States distributor) and the dealer who sold the car, and a further judgment against itself on the dealer’s third-party demand. Plaintiff answers Fiat’s appeal, seeking an increase in attorney’s fees from $1,000 to $1,550. The dealer neither appeals nor answers.

We delete the award to the buyer of $375 finance charges because (insofar as they are not returnable upon pre-payment of the loan after satisfaction of this judgment) the buyer’s use of the defective automobile is presumptively their equivalent; Farmer v. Fisk, La.1844, 9 Rob. 351; Harvey v. Kendall, 1847, 2 La.Ann. 748; Boudreaux v. Mazda Mtrs. of Am. Inc., La.App. 4 Cir. 1977, 347 So.2d 504 writ refused, La., 350 So.2d 1223.

We otherwise affirm the judgment appealed from.

Fiat, as distributor of foreign-made Lancia automobiles for the United States, is their quasi manufacturer, Media Pro. Consult. Inc. v. Mercedes-Benz of N.A. Inc., 1972, 262 La. 80, 262 So.2d 377, and is therefore liable as a manufacturer to the dealer on the third-party demand, La.C.C. 2531 (as amended, La. Acts 1974 No. 673 § 1), for the dealer’s loss if caused by redhi-bitory defects.

Fiat’s preliminary argument, that no evidence either proves or excuses tender of return of the automobile, is mistaken. The evidence includes a Lancia Customer Contract Report and a Complaint Resume (P-5 and -6) which state that plaintiffs’ attorney approached the dealer to take the car back. This approach was sufficient tender; Ticheli v. Silmon, La.App. 2 Cir. 1974, 304 So.2d 792.

Fiat’s second argument is that the defects were not redhibitory because some were in fact repaired and the remaining defects, though not repaired despite several requests by plaintiffs, were both minor and easily repairable in any event. This is a reasonable argument: for example, redhibition would be a harsh remedy for a malfunctioning dashboard light (one of plaintiffs’ complaints) even if it had not yet been repaired after several visits to the dealer for that and other problems.

But ease of repair is not of itself a defense against redhibition, Prince v. Paretti Pontiac Co. Inc., La.1973, 281 So.2d 112 (although it may have significance in a third-party claim against the manufacturer by a dealer who was obliged to perform the repair).

The basic test of whether a defect is a redhibitory one is whether it so affects the use of the thing sold that “it must be supposed that the buyer would not have purchased it, had he known of the vice.” C.C. 2520. To this test, however, the 1974 amendment of C.C. 2531 adds, as to the good-faith seller, that “if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price . .” We do not have a single minor defect such as a malfunctioning dash light, and we therefore cannot rule on whether C.C. 2531 would authorize redhibition for non-repair of defects although the defects themselves be so minor as not to be redhibi-tory. Our facts are that many defects existed, each perhaps less-than-redhibitory by itself, but sufficient together to support the trial judge’s conclusion that it “must be supposed” that the ordinary buyer would not have bought had he known of the defects and the difficulty in getting them repaired. See Dunlap v. Chrysler Mtrs. Corp., La.App. 4 Cir. 1974, 299 So.2d 495, writ refused, La., 302 So.2d 38; Ticheli, supra.

We conclude that the judgment awarding redhibition is supported by the record.

Fiat’s third argument is that the udgment against the dealer is based in part on complaints attributable to the dealer alone.

There is merit to this argument. It is common knowledge that, for whatever reason, new car buyers sometimes experience considerable difficulty in getting minor complaints remedied by the dealer. The resulting determination by the buyer to demand redhibition might be the dealer’s fault rather than the manufacturer’s. If the dealer’s failure to cure easily remediable defects — as he is presumably obliged towards the manufacturer to do — is the basis of a redhibition, it would be unjust to make the manufacturer accept return of the now-used car and pay to the dealer not merely the wholesale price it received but, much worse, the retail price of the car, including the dealer’s profit, plus attorney’s fees. The dealer ought not to recover loss caused by his own fault, at the expense of the manufacturer.

However, this is not such a case. The evidence establishes dealer fault only in relation to the dash light; the cutting of the wire by the dealer is related to that problem. The dealer did install the air conditioning and its problem might be the fault of the installation; but this is not established. The engine miss, the leaking right front, and the non-functional windshield wipers are, more probably than not, the manufacturer’s fault. The manufacturer does not show that these items were so readily repairable that it was the dealer’s own fault that redhibition resulted.

Attorney’s fees under C.C. 2545 (as amended, Acts 1968 No. 84) were awarded against the manufacturer on the theory of imputation of knowledge of the defects, as in Rey v. Cuccia, La.1974, 298 So.2d 840. Much of plaintiffs’ trial work related to attempts at repair by the dealer, to establish entitlement to redhibition against the dealer under C.C. 2531. That work was unrelated to plaintiffs’ claim against the manufacturer, who should therefore not pay attorney’s fees for that part of the trial work. We conclude the $1,000 awarded by the trial court suffices for both trial and appellate work against the manufacturer.

The judgment is amended to delete the award of $375 expenses of sale and it is otherwise affirmed. Costs of appeal are to be divided equally.

      . The day after the purchase the car began stalling every few minutes, the engine was “missing” and the air conditioning malfunctioned (and the clock did not work); the car had to be towed back to the dealer the next day.
      These first-known defects are presumed by law, C.C. 2530, to have pre-existed the sale because they appeared within three days of the sale. Later-appearing defects do not enjoy that status as a matter of law, but in the absence of other explanation, defects which do not usually result from ordinary use for the time passed may be inferred to have pre-existed the sale; Moreno’s Inc. v. Lake Charles Cath. H.S. Inc., La. 1975, 315 So.2d 660 (air conditioning compressor which failed after two and a half years held defective at time of sale).
      In the present case, the defects which appeared after the three-day presumptive period were of a nature that justifies application of the Moreno's rule. Leaks in the hoses of cooling system and windshield wipers were reported nine days after the sale. Water leaks in the right front of the car developed within two months. Thereafter the windshield wipers failed and a rear window leaked.
      Altogether attempts at repair by the dealer, several days at a time, took about 40 days of the first 127 days after plaintiffs bought the car. (The dealer loaned plaintiffs another car during long repair-attempt periods.)
      The worst defect — the stalling of the engine— was remedied, as were clock, hose leaks and rear window. But missing at high engine speeds, right front leak, windshield wipers (for lack of a part), dash light and air conditioning were not repaired.


author: BOUTALL, Judge.

text:
    Carroll L. WOOD, III, D.D.S. v. Richard J. KELLY, Jr.
    No. 9162.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Dodge, Friend, Wilson & Spedale, Joseph E. Friend, New Orleans, for Carroll L. Wood, III, D.D.S., plaintiff-appellee.
    Harry A. Burglass, Metairie, for Richard J. Kelly, Jr., defendant-appellant.
    Before LEMMON, BOUTALL and GAR-SAUD, JJ.
   BOUTALL, Judge.

Carroll L. Wood, III sued Richard J. Kelly, Jr. on a promissory note for $1,000. The note did not provide a date for maturity but was admittedly on demand; did not provide for interest, but did provide for 15% attorney’s fees. Kelly admitted the note was unpaid but contended set-off because he had furnished accounting services to Wood through his solely owned corporation, ABS Tax Service Corporation. The trial court rendered judgment on the note plus 7% per annum interest from judicial demand until paid and 15% attorney’s fees.

Kelly appeals contending error in not recognizing his claim of set-off and in awarding interest and attorney’s fees without demand having been made on the note.

The evidence shows that the promissory note represented a personal loan to Kelly and there was no agreement that it was to be paid in a particular way. The work Kelly did for Wood was on behalf of the corporation, and the trial judge correctly held that Kelly was not entitled to use this for his individual benefit. In passing, we note also that the value of these services are in dispute in another suit between Wood, Kelly and the corporation.

The promissory note did not provide for interest and the trial judge awarded none on that contractual basis. He properly awarded the legal interest provided in La.C.C. Art. 1935 and 2924 reasoning that the debt became due and payable at the time of the judicial demand.

Similarly the award of attorney’s fees was governed by the judicial demand. The note was payable on demand and the parties dispute whether amicable demand was ever made. Nevertheless the judicial demand constituted the demand making the note due and payable. Defendant although admitting the debt still did not pay it or make legal tender. It was necessary that the attorney prosecute the judgment and this is the basis for the award of attorney’s fees.

The judgment is affirmed at appellant’s costs.

AFFIRMED.


author: BEER, Judge.

text:
    Ruby DAVIS v. D. H. HOLMES, LTD. and Otis Elevator Company.
    No. 9174.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Drury, Lozes & Curry, James H. Drury, Robert P. Baumgartner, New Orleans, for defendants-appellants.
    Gerdes & Valteau, Paul R. Valteau, Jr., Lloyd W. Hayes, New Orleans, for plaintiff-appellee.
    Before LEMMON, BOUTALL and BEER, JJ.
   BEER, Judge.

On October 18, 1973, appellee, Ruby Davis, fell while on a moving escalator in D. H. Holmes, Ltd. department store. Suit against D. H. Holmes, Ltd. and Otis Elevator Company resulted in judgment dismissing the claim against Holmes and the awarding of damages in the amount of $8,660 against Otis Elevator Company, who suspensively appeals.

The record is void of any evidence to indicate malfunction of the escalator or impropriety of its design, installation and operation.

Able counsel for appellee relies upon Tarantino v. City Stores Co., 278 So.2d 149 (La.App. 4th Cir. 1973), but we find that case distinguishable on its facts, for, here, there is no proof of any defect which might have been obviated by a more complete system of inspection and/or maintenance. Indeed, there is no proof whatsoever of the cause of Ruby Davis’ fall. One of the shoes which she was wearing was introduced in evidence in an attempt to show that it was, in some way, “caught” in or on the escalator, but we find no connexity between the alleged catching of her shoe and any failure or malfunction of the system. If her shoe did catch, there is absolutely no evidence in this record to attribute the catching to any defect, failure or malfunction of the escalator.

The judgment of the Civil District Court for the Parish of Orleans in favor of Ruby Davis and against Otis Elevator Company is reversed, and the claim of Ruby Davis is dismissed. In all other respects, the judgment is affirmed. Each party to this appeal is to bear its own costs.

REVERSED IN PART, AFFIRMED IN PART.