text:
    James E. FRANKLIN, Plaintiff-Appellant, v. AMERICAN MOTORS CORPORATION et al., Defendants-Appellees.
    No. 5887.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      E. M. Nichols, Lake Charles, for plaintiff-appellant.
    Jones, Patín, Harper, Tete & Wetherill, by Kenneth R. Spears, Raggio, Farrar, Cap-pel & Chozen by Richard A. Chozen, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, WATSON and ROGERS, JJ.
   ROGERS, Judge.

James E. Franklin, plaintiff-appellant, filed this suit in redhibition against American Motors Corporation and Watts-Pumpelly Volkswagen, Inc., defendants-appellees on July 8, 1975. Defendants filed their answer and subsequently filed a peremptory exception of prescription and the trial court sustained the exception.

On December 18, 1973, plaintiff purchased a 1974 J-20 Pickup Jeep Truck from defendant Watts-Pumpelly. The said truck was manufactured by defendant American Motors Corporation.

The evidence shows that plaintiff was continuously having mechanical trouble with the vehicle, either because of defects attributed to the manufacturer or because of the abusive acts performed by plaintiff. The vehicle was last worked on by Watts-Pumpelly on February 6, 1974 and last worked on by Palmer Motor Company, an authorized American Motor Corporation dealer, on April 24, 1974. According to plaintiff, it was also, at varying times, worked on by his personal friend who was a mechanic, and also by himself.

Plaintiff contends that prescription did not commence to run until August 20,1974, as aginst American Motor/Jeep and did not commence to run against Watts-Pumpelly until the plaintiff-buyer was put on notice that no further attempts to repair would be made.

Plaintiff argues that under jurisprudence, the manufacturer is presumed to know of the vices and defects of the things he sells. He relies on Civil Code Article 2534 which provides that the one year prescription period set forth therein does not apply when the seller has knowledge of the vice and neglects to declare it to the purchaser.

He also relies on the recent case of Weaver v. Fleetwood Homes of Mississippi, Inc., et al., 327 So.2d 172 (La.App. 3 Cir. 1976):

“With reference to Fleetwood, the manufacturer of the mobile home, there is a presumption of knowledge of a defect in the thing made. Radalec, Inc. v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955); Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952). Under LSA-C.C. article 2534, the one year prescriptive period provided for in redhibitory actions does not apply where the seller has knowledge of the vice and neglects to declare it to the purchaser. Since the manufacturer is presumed to know of the defects in the product he manufactures, prescription does not commence to run in his favor if he fails to declare to the purchaser the defects in the product. In the present case, prescription never commenced to run in favor of Fleetwood.”

Plaintiff further argues that insofar as the immediate vendor, Watts-Pumpelly, is concerned, even though there is a one year prescription period set forth in LSA-C.C. art. 2534, under the jurisprudence the courts have held that this one year period does not begin to run until the seller abandons his attempts to repair the defect in the product he has sold. This again is set forth in the Weaver case with ample citation of authority, as follows (327 So.2d 176):

“Under the jurisprudence of this state, the prescriptive period provided in article 2534 does not begin to run until the seller abandons his attempts to repair the defect in the product he has sold. Williams v. Ford Motor Company, 307 So.2d 159 (La.App. 1 Cir. 1974); Domingue v. Whirlpool Corp., 303 So.2d 813 (La.App. 3 Cir. 1974); de la Houssaye v. Star Chrysler, Inc., 284 So.2d 63 (La.App. 4 Cir. 1973); Kennedy v. Vidalia Home Service, Inc., 256 So.2d 827 (La.App. 3 Cir. 1972).”

Defendants contend that plaintiff had knowledge of the alleged defect in the jeep vehicle from the date of purchase and despite this knowledge, waited over a year before filing this suit in redhibition and further waited over a year from the date of the last repair before filing suit.

Actions such as the one in the case at hand are governed by the Louisiana Civil Code articles dealing with redhibition, namely, Articles 2520, et seq. These articles of the Louisiana Civil Code provide for the rights and the obligations of the vendors and vendees in Louisiana. Among these articles are those which deal specifically with the time limitation involved in initiating litigation. LSA-C.C. art. 2534 states:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser. . . .”

This suit was filed more than one year from the date of the sale therefore, it has clearly prescribed under the rules set out in the first paragraph of Article 2534. However, the second paragraph of Article 2534 indicates a different result if the seller knew of the vice and failed to tell the vendee. The plaintiff cites Article 2534 along with the case of Weaver v. Fleetwood Homes of Mississippi, Inc., supra, as standing for the proposition that prescription never runs in favor of a manufacturer if he fails to declare to the purchaser the defects in his product. Since American Motors Corporation manufactured the jeep vehicle in question, plaintiff takes the position that prescription never runs in favor of American Motors Corporation as the manufacturer. That has never been the law in Louisiana and the Weaver case does not stand for such a proposition. In the case of the manufacturer who is presumed to know the defect in the thing he sells, Louisiana Civil Code Article 2546 governs the time period in which the vendee must file a suit in redhibition:

“In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice.
This discovery is not to be presumed; it must be proved by the seller.”

The rule that the vendee has one year from the date of discovery of the defect to initiate a redhibition suit against the manufacturer-seller has been outlined in a long standing line of jurisprudence in Louisiana. Moreno’s, Inc. v. Lake Charles Catholic Schools, Inc., La., 315 So.2d 660; American Insurance Company v. Hartford Accident and Indemnity Company, La.App., 198 So.2d 757; Crowley Grain Dryer, Inc. v. Fontenot, La.App., 132 So.2d 573; Sterbcow v. Peres, 222 La. 850, 64 So.2d 195; Lloyd v. Pan Air Corporation, La.App., 139 So.2d 1.

The facts in the American Insurance Company case, supra, appear to be similar to the facts in the case at bar. In the American case, the plaintiff purchased a hydrocrane unit. Apparently, the unit had defects in it which manifested itself soon after the sale and which the vendee discovered and had knowledge of shortly after purchasing it. The machine broke down several times and a redhibition suit was filed after the last breakdown. The trial court sustained the exception of prescription filed on behalf of the defendants because the plaintiff had waited until well over one year from discovering the defect before initiating a suit for redhibition. The trial court stated at page 760:

“That was his responsibility, and no suit was filed in connection with that defect for well over one year thereafter.”

Assuming for the sake of argument that the jeep vehicle in question had a defect in it at the time it was sold to the plaintiff, there is no question that Mr. Franklin had knowledge of this defect immediately after the purchase. Reference is made to Paragraph 7 of the plaintiff’s petition.

“7. Since the day the plaintiff acquired the vehicle, it has not worked and performed as a full-time four-speed drive, and, to the contrary has given plaintiff continuous trouble.”

On several occasions, the plaintiff admitted under oath that he had knowledge of the alleged defect. See page 10 of plaintiff’s deposition, which has been filed in evidence marked D-l, where the following statement was made:

“Q. Mr. Franklin, reading here from your petition, it says that from the day that you purchased the vehicle, it has not worked to perform as a full-time four-wheel drive vehicle and it’s given you continuous trouble. Is that correct?”
“A. That’s correct.”

In addition, at the hearing on the exception, plaintiff admitted in open court, under oath, that he had knowledge of the alleged defect immediately subsequent to the date of the sale (Tr. 96).

“Q. From that day on, you knew you did not have four-wheel drive.
“A. Right.”

There is sufficient reason to believe that plaintiff had knowledge of the alleged defects in the jeep vehicle immediately after the date of purchase, December 18, 1973, and despite this knowledge, plaintiff waited well over a year and a half before initiating his suit for redhibition.

Watts-Pumpelly and American Motors Company, through Palmer Motor Company, did make an attempt to repair the vehicle and when such attempts are made our courts have consistently held that the one-year prescriptive period begins to run from the date of the last repair. Brown v. Mid-City Motors, Inc., La.App., 248 So.2d 27; Domingue v. Whirlpool Corporation, La.App., 303 So.2d 813. As evidence by the affidavits filed of record, marked D-2 and D-3, the last repair work done on the vehicle was April 24, 1974.

Although plaintiff testified that he spoke to a Mr. Brown, a representative of American Motors on August 20, 1974, and about three times on the telephone to representatives of the said company in Michigan from April 24, 1974 to August 20, 1974, plaintiff does not specify the dates of these telephone calls nor does he prove as to how American Motors Corporation tried to satisfy his problems with the alleged defects. Plaintiff may have tried to get satisfaction from American Motors Corporation from April 24, 1974 to July 18, 1975, but the evidence shows that American Motors Corporation abandoned its attempts to repair the alleged defect after April 24, 1974. Therefore, under our long standing jurisprudence, plaintiff’s action in redhibition prescribed, at the latest, on April 24, 1975, and this suit which was filed in July of 1975 was simply filed too late.

For the reasons assigned, the peremptory exception of prescription of one year pleaded by both defendants and maintained by the trial judge is affirmed. Costs are assessed to plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    SCURLOCK OIL COMPANY, Defendant-in-Reconvention-Appellee, v. GETTY OIL COMPANY et al., Plaintiff-in-Reconvention-Appellant.
    No. 5888.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Henican, James & Cleveland by Carl W. Cleveland, New Orleans, for defendant-appellant.

      Bailey & Hollier by W. C. Hollier, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

Plaintiff-in-reconvention, Robert L. Waterbury, has appealed from a trial court judgment which: dismissed his reconven-tional demand against defendant-in-recon-vention, Scurlock Oil Company; sustained Scurlock’s peremptory exception of res judi-cata; and granted Scurlock a summary judgment.

The litigation commenced as a concursus proceeding by Scurlock, which purchased the production from a unit well in St. Landry Parish. The question of who was entitled to the proceeds of the well has previously been litigated in Scurlock Oil Company v. Getty Oil Company, 278 So.2d 851 (La.App. 3 Cir. 1973) reversed, 294 So.2d 810 (La., 1974), and Waterbury’s liability for well costs and operating expenses in Scurlock Oil Company v. Getty Oil Company, 324 So.2d 870 (La.App. 3 Cir. 1975). The only parties to this appeal are Scurlock and Waterbury.

In essence, Waterbury’s reconventional demand claims that Scurlock should reimburse him $35,771.50 which was paid to the unit operator, R. L. Bauman, by Scurlock after Waterbury had notified Scurlock that Bauman had failed to comply with LSA-R.S. 30:103.1 and 103.2, which provide:

LSA-R.S. 30:103.1:

“Whenever there is included within a drilling unit, as authorized by the commissioner of conservation, lands producing oil or gas, or both, upon which the operator or producer has no valid oil, gas or mineral lease, said operator or producer shall report to the owners of said interests, by a sworn, detailed, itemized statement, the costs of the drilling operations of said unit within ninety calendar days from the completion of the well. Reports shall be sent by registered mail to each owner of an unleased oil or gas interest who has requested such report and furnished his name and address to the operator or producer.”

LSA-R.S. 30:103.2:

“Whenever the operator or producer permits (1) ninety calendar days to elapse from completion of the well and (2) fifteen additional calendar days to elapse from date of receipt of written notice by registered mail from the owner or owners of unleased oil and gas interests calling attention to failure to comply with the provisions of R.S. 30:103.1, such operator or producer shall forfeit his right to demand contribution from the owner or owners of the unleased oil and gas interests for the costs of the drilling operations of the well.”

An affidavit was filed by Waterbury in opposition to the motion for summary judgment alleging, in pertinent part, that: he was owner of a 40% unleased forced working interest in unit 23-2 Opelousas Field, St. Landry Parish, Louisiana, Ledoux No. 1 well; that Bauman was designated operator; that Waterbury at no time leased his interest; that production was established in late November or early December, 1961; that oral demand was made for an accounting of drilling and operating costs, expenses and Waterbury’s share of production; that no response was received; that a written demand by registered mail was sent to Bau-man in compliance with the above statutes on October 12, 1962; that no accounting was received; that the Supreme Court held in the Scurlock case reported at 294 So.2d 810 that Waterbury was entitled to receive the proceeds attributable to his 40% interest; that, as a result of Bauman’s failure to make an accounting of drilling and operating expenses, Bauman has forfeited his right to demand contribution from Waterbury for drilling costs; that Scurlock wrongfully paid the $35,771.50 to Bauman as Waterbury’s share of drilling costs and is indebted to Waterbury for that amount; that Scurlock had stipulated payment of the $35,771.50 to Bauman; and that this stipulation between the parties, Exhibit B, was incorporated for reference.

RES JUDICATA

Waterbury’s first contention on appeal is that the exception of res judicata was improperly sustained because: the necessary identity of the parties is not present; the demands are not formed against them in the same quality; the thing demanded is not the same; and the cause of action is different.

LSA-C.C. art. 2286 provides:

“Art. 2286. The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

The decree in the Scurlock case reported at 324 So.2d 870 affirmed a trial court judgment in favor of “the Bauman Group” for $18,725.58 in well costs and operating expenses.

“It is well settled that in the application of res judicata, it is the judgment, or decree, and not the reasoning that led to it which is controlling.” Rivette v. Moreau (Estate of Mistric), 336 So.2d 864 at 866 (La., 1976).

Under the Louisiana doctrine of res judicata, as enunciated in Sliman v. McBee, 311 So.2d 248 (La., 1975), comment at 36 L.L.R. 573, and Rivette v. Moreau, 336 So.2d 864 (La., 1976), the prior judgment would not bar this litigation because of differences in the cause, i. e., the amount claimed.

Counsel for Scurlock contends that the $35,771.50 in dispute here and the $18,725.58 previously litigated are parts of a lump sum and a single obligation, the total well costs. This may be correct but nothing in the record of this appeal establishes that fact.

Thus, the peremptory exception was improperly sustained by the trial court, under a strict application of the doctrine of res judicata as recognized in Louisiana.

SUMMARY JUDGMENT

The trial court did not articulate its reasons for granting summary judgment. The statutory requirement is, of course, that there be no genuine dispute as to material facts and that the mover be entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

The only evidence, other than Waterbury’s affidavit, is a stipulation, Exhibit B, attached to the affidavit. It provides for retention of $58,000 in the registry of the court to take care of any drilling or operating expenses which might be due; for the Bauman Group to file a detailed schedule of such costs on or before November 4,1974 at 10:00 A.M.; and:

“It is further stipulated that the sum paid by Scurlock Oil Company out of production attributable to the Waterbury leases is $35,771.50, and that Robert L. Waterbury doesn’t claim that actual well costs were less than that amount, specifically reserving to Robert L. Waterbury the right to claim reimbursement from, Scurlock Oil Company for the payment of said sum.
“It is further stipulated that the total sum paid by Scurlock Oil Company of $35,771.50, was paid to or for the account of The Estate of Roger L. Bauman, Jon Rogers Bauman Trust Estate, Michael Collins Bauman Trust Estate, Jim Bra-den, Donald S. Bollman, and Mrs. Mildred Bollman.
“It is further stipulated that pleadings will be filed on behalf of Robert L. Waterbury, specifically stating the amount and the nature of his claim against Scurlock Oil Company for reimbursement of the amount of $35,771.50 that it paid to or for the account of the Bauman group and that pleading will be filed on or before November 4, 1974 at 10:00 A.M.” (Exhibit B, TR. 16-17).

There is no factual dispute. Waterbury stipulated the essential facts, as quoted above. The well costs were at least $35,-771.50; Scurlock paid that amount; and that amount was attributable to the Waterbury leases.

While the trial court did not state its theory for granting summary judgment, there are three valid bases (not entirely independent) upon which Scurlock may be held to be entitled to judgment. They may be denominated as (1) judicial estoppel; (2) right of prior claim; and (3) payment of a third party’s debt.

The trial court may have considered, first, that the claims urged by Waterbury have already been well and fully tried. This court has considered previously, carefully and meticulously the question of whether Waterbury may escape well costs or whether Bauman has the right to well costs from Waterbury’s interest in the production. Scurlock Oil Company v. Getty Oil Company, 324 So.2d 870 (La.App. 3 Cir. 1975). The opinion stated:

“The principal issue presented on this appeal is whether R. L. Bauman, one of the defendants included in the Bauman Group, has forfeited his right to claim drilling costs. We have decided that his right to recover those costs has not been forfeited.” 324 So.2d 875.
In addition, this court held:
“We also feel that Waterbury has waived his right to enforce the penalty provided in those sections of the Revised Statutes.
* * * * * *
“We believe that Waterbury, by seeking and obtaining the above court order, and by stipulating that the Bauman Group could file a claim for well costs and operating expenses within a specified time, waived any right he may have had previously to enforce the penalty provided in LSA-R.S. 30:103.1 and 103.2.” 324 So.2d 877.

Thus, the issue was previously considered and this Court rejected Waterbury’s contention that Bauman had forfeited the right to well costs from Waterbury’s share of the production. Now Waterbury urges precisely the same contention. This court found Bauman or “the Bauman Group” entitled to collect well costs from Waterbury. The legal issue was decided adversely to Waterbury’s contention.

As the Supreme Court held in California Company v. Price, 234 La. 338, 99 So.2d 743 (1957):

“It is the settled jurisprudence of this court that matters once determined by a court of competent jurisdiction, if the judgment has become final, can never again be called into question by the parties or their privies, though the judgment may have been erroneous and liable to certain reversal on appeal.” 99 So.2d 747.

Waterbury is judicially estopped from claiming repayment of well costs made to Bauman by Scurlock.

A second basis for holding that Scurlock was entitled to pay the $35,771.50 to the Bauman Group might be called the “right of prior claim”.

The party drilling the well, here Bauman, had the right under LSA-R.S. 30:10(A)(1)(c) and Hunter Co. v. McHugh, 202 La. 97, 11 So.2d 495 (1942) to retain or receive the well proceeds until his well costs were paid and Waterbury therefore had no prior right to the proceeds. Also see Superior Oil Co. v. Humble Oil & Refining Company, 165 So.2d 905 (La.App. 4 Cir. 1964).

A final basis for summary judgment is the right to pay another’s debt. The trial court could have correctly granted summary judgment on the legal theory that Scur-lock paid to Bauman the debt of a third party, Waterbury, and, since Waterbury has stipulated that the amount of well costs at least equal the amount of the payment, and, since Bauman is entitled to well costs from Waterbury, under the previous decision of this court, the payment was proper. LSA-C.C. art. 2040; Cf. Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848 (La., 1974).

Therefore, the better resolution of this appeal is to overrule the plea of res judicata but to affirm the summary judgment as entered by the trial court, dismissing the reconventional demand of Robert L. Waterbury. All costs are taxed to Waterbury.

AFFIRMED.

      . The payment was to what is called “the Bau-man Group” rather than R. L. Bauman, but no issue is made concerning that fact; R. L. Bau-man and the “Bauman Group” are used indiscriminately by the parties and in this opinion.


author: ROGERS, Judge.

text:
    Norris John LANDRY d/b/a Royal Catering, Plaintiff-Appellee, v. Jerry GUILLORY, Defendant-Appellant.
    No. 5892.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Kenneth P. Rodenbeck, Alexandria, for defendant-appellant.
    Mouton, Roy, Carmouche & Hailey by Ralph E. Kraft, Lafayette, for plaintiff-ap-pellee.

      Before HOOD, DOMENGEAUX and ROGERS, JJ.
   ROGERS, Judge.

Norris John Landry, d/b/a Royal Catering, instituted this action against Jerry Guillory for $2,047.50 allegedly owed plaintiff by defendant on a contract to provide goods and services. Plaintiff confirmed a default judgment against defendant, and defendant has appealed.

The substantial issue before this court is whether plaintiff’s petition states a cause of action.

On June 4, 1976, plaintiff filed suit against defendant alleging a certain sum was due for goods and services provided by plaintiff’s business, Royal Catering. Generally, the petition alleges that defendant contracted with plaintiff to cater a banquet on behalf of a candidate for State Commissioner of Insurance.

The arrangements were that the banquet was to be held at the Municipal Auditorium in Lafayette, Louisiana on October 6, 1975; that plaintiff would provide all food, utensils, labor and other incidentals; and that plaintiff would receive $6.50 per person served with a minimum guarantee of $2,047.50. Plaintiff’s petition further alleges that he did provide the agreed upon services for the specified event, but that he has never received payment. The petition states that there were less than the required minimum number of persons in attendance, and thus plaintiff is entitled to $2,047.50.

Defendant failed to file an answer, and a default judgment was entered against him on July 2, 1976. On August 6, 1976, a hearing was held, plaintiff presented his case, and the default judgment was confirmed and signed. Defendant thereupon sought a devolutive appeal order which was granted by the trial court on December 9, 1976.

Defendant, in his appeal brief, urges that plaintiff’s petition failed to state a-cause of action against defendant because plaintiff’s petition failed to allege that defendant bound himself personally, or exceeded his authority as agent for the Insurance Commissioner candidate, in contracting with Royal Catering.

Defendant did not file an exception of no cause of action in the district court nor has such a motion been formally filed with this court. The only time this contention has been raised is in defendant’s appellate brief. However, an exception of no cause of action, since it is peremptory in nature, may be raised for the first time on appeal, if it is placed at issue, as was done here, prior to the submission of the case for a decision. LSA-C.C.P. art. 2163. Therefore, we find that defendant’s exception is properly before this court.

The purpose of the peremptory exception, as has been previously held by this court, is to determine whether any remedy is afforded by law to plaintiff under the allegations contained in his petition. Fremaux v. Buie, 212 So.2d 148 (La.App. 3 Cir. 1968).

The law is settled that for purposes of considering the exception, all allegations of the plaintiff’s petition are deemed to be true. Verret v. Traveler’s Insurance Co., 216 So.2d 379 (La.App. 3 Cir. 1968).

Furthermore, when considering an exception of no cause of action, allegations contained in plaintiff’s petition must be construed most favorably to sustain plaintiff’s cause of action, and defendant’s exception must be overruled unless the allegations exclude every reasonable hypothesis of fact other than those showing that plaintiff could not recover as a matter of law. Stanley v. Missouri-Pacific Railroad Company, 179 So.2d 490 (La.App. 3 Cir. 1965); Steagall v. Houston Fire and Casualty Insurance Company, 138 So.2d 433 (La.App. 3 Cir. 1962).

Paragraph 5 of plaintiff’s petition states as follows:

5.
Defendant at said meeting advised plaintiff that he desired to hold a campaign banquet or dinner for Mr. Barcelona in the City of Lafayette at the Municipal Auditorium on October 6, 1975, and desired to contract with and engage plaintiff as the caterer for said banquet.

Clearly, one reasonable interpretation of this paragraph is that plaintiff contracted with defendant personally for providing these services, and not as the agent for Mr. Barcelona, his campaign committee, or any other party as is now urged by defendant on appeal.

If defendant had wanted to prove that he was acting as agent for another party when he contracted with plaintiff, he should have done so at the district court. Instead, defendant took no action, and allowed a default judgment to be entered against him.

To confirm a default judgment the plaintiff must establish a prima facie case proving his demand. LSA-C.C.P. art. 1702. The court minutes and the signed judgment indicate that such was done.

When having a default judgment confirmed, the plaintiff is not required to have the testimony reduced to writing or to have a note made of the evidence introduced, and on appeal, the defendant has the burden of overcoming the presumption that the judgment was rendered upon sufficient evidence and is correct. Francois v. Cloud, 149 So.2d 678 (La.App. 4 Cir. 1963); Baker Finance Co. v. Hines, 255 La. 971, 233 So.2d 902 (1970). Here, no transcript or note of the evidence is found in the record, and thus it is presumed that the judgment of the trial court was rendered upon sufficient evidence and is correct.

For the above given reasons, defendant’s exception of no cause of action is dismissed, and the judgment of the trial court is affirmed. All costs are assessed against the defendant-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Richard A. FOREMAN, Plaintiff and Appellee, v. GENERAL ELECTRIC CREDIT CORPORATION, Defendant and Appellant.
    No. 5898.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      Favret, Favret & Demarest by W. Larry Floyd, New Orleans, for defendant-appellant.
    John L. Van Norman, III, Lake Charles for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY, and ROGERS, JJ.
   DOMENGEAUX, Judge.

Defendant-appellant, General Electric Credit Corporation, financed plaintiff-ap-pellee’s vessel which was purchased by the latter from National Boat Mart, Inc. of Lake Charles. The vessel’s hull was subsequently damaged at a time when there was no hull insurance in effect. Claiming that defendant negligently failed to obtain hull insurance as was its obligation under the finance agreement, plaintiff filed suit.

The district court held that General Electric Credit Corporation was negligent in failing to notify plaintiff of the absence of hull insurance coverage and awarded plaintiff judgment for the damages. Defendant has appealed and assigns as errors the following rulings of the district judge:

1. In concluding that defendant did not notify plaintiff of the fact that the vessel was not insured for hull damages;
2. In not allowing the office notes of Linda Standinger, an employee of defendant at its New Orleans office, to be admitted into evidence.
3. In awarding damages in excess of the amount prayed for.

In disposing of errors numbers One and Two, we adopt a portion of the district judge’s precise and thorough reasons which correctly set out the facts and applicable law as follows:

“On February 4 or 5, 1974, the plaintiff, Richard A. Foreman, purchased a 1942 Chris Craft Motor Vessel from National Boat Mart of Lake Charles, Inc., defendant. The sale was financed by a note and chattel mortgage on a form supplied by defendant, General Electric Credit Corporation. The boat appears to have been owned by an employee of National Boat Mart, but it is of no significance in this case. The plaintiff’s credit application having been previously approved by General Electric Credit Corporation, the note and chattel mortgage were assigned to the latter shortly after execution.

The chattel mortgage contains the following provision in regard to insurance:

‘REQUIRED INSURANCE
‘Buyer is required to have and maintain for the term of this contract, at Buyer’s expense, insurance against loss of or physical damage to the Boat (Hull Insurance), with a loss payable clause protecting lienholder (as interest may appear) and provision for ten-day notice of cancellation to lienholder, and against liability to others for use of Boat (Protection and Indemnity). Buyer has the right to obtain such insurance through an agent or broker or other person of Buyer’s choice as well as through Seller. If obtained through Seller, the costs of this insurance are: Hull $845.00, Protection & Indemnity $_ and Buyer’s election to obtain such insurance through Seller is shown by the inclusion of these costs in Item 4A below.’

Item 4A includes the $845.00 premium for hull insurance and also a $230.00 premium of life insurance. These sums were included in the total amount financed, and the mortgage provides for payment thereof in sixty monthly installments of $122.68, beginning March 17, 1974.

The credit application, note and chattel mortgage were prepared by Mrs. Olen Clark, the secretary-treasurer of National Boat Mart of Lake Charles, Inc., in accordance with previous instructions from General Electric Credit, and forwarded to the latter’s office. She testified that the $845.00 figure for the premium for hull insurance was obtained by her in a long distance call to the office of National Marine Insurance Group in St. Petersburg, Florida, with whom the defendants customarily did business. However, when General Electric Credit sent its check to this insurer on February 13, 1974, to cover the hull and life insurance premiums, it was returned because the amount of the former was insufficient.

Mrs. Linda Ballatin Standinger, who handled the matter for General Electric Credit, testified she called Mrs. Clark and discussed the matter []. Thereafter, she talked to Mr. Foreman on at least two occasions and to Mrs. Foreman on many more, telling them that she had not been able to obtain coverage on the boat’s hull and requesting that they attempt to get such insurance. She said that all their conversations were basically the same:

‘Yes, notifying them that there was still no coverage on the boat, we had to have coverage. You know, was she trying to secure coverage for the WIND-SONG? No, never. You know, she was never trying to get it. This was always left up to me to take care of, and I reminded her that this was one of the prerequisitions before the contract was approved, that the coverage must be secured, and she brought up the fact that it was in the contract, and as far as she knew that, you know, as far as she was concerned, rather, that we should hold, you know, to the figure that was in the contract.’ (Deposition — Pgs. 16 and 17.)

Mrs. Standinger denied that she ever said anything that might have led Mr. and Mrs. Foreman to conclude they did not have to worry about the insurance. Besides the National Marine Insurance Group, she also attempted to secure the coverage from State Farm Mutual Insurance Company, but was advised by Mr. Hunter Perrin, one of its local agents, by letter dated July 15, 1974, that his company would not insure the boat.

A policy of hull insurance was later obtained by General Electric Credit from the Manhattan Fire and Marine Insurance Company. However, the boat was damaged by high winds and began taking water while docked at Cameron around June 10, or 18, 1974, before such policy was issued.

Both Mr. and Mrs. Foreman admitted they had received telephone calls from a lady in General Electric Credit’s New Orleans Office prior to the vessel being damaged. However, both testified they were informed simply that the company which had the insurance on the boat wanted to cancel the policy, and it was going to be necessary to get hull insurance from another company. Mr. Foreman said he was not told anything about getting the insurance himself, but understood General Electric Credit was going to get the policy from another company. He asked if he was covered,'and was told by the lady that he was from the date he purchased the vessel. Mrs. Foreman testified that the lady wanted to know if they had any preference as to who would be the new insurer, or whether the Foremans wanted to get the insurance themselves. She replied that she did not know where to get such insurance, and was told that General Electric Credit would continue its efforts to get another insurer. Mrs. Foreman further stated she was never told that General Electric Credit could not or would not get the insurance, nor that the boat was not insured at any time after its purchase.

Mrs. Olen Clark testified that she was under the impression the boat was insured at the time it was sold and the forms were executed.

It was admitted that no offer was ever made to refund the plaintiff any part of the hull insurance premium. However, Mr. Robert Horton, General Electric Credit’s collection manager, testified that in the usual case where an insurance policy is can-celled, the unearned premium is credited to the loan balance. He admitted that his company would not have taken the assignment of the note and chattel mortgage if some provision for hull insurance had not been made.

At the trial the plaintiff’s objection to admitting in evidence D-3, certain handwritten notes allegedly made by Linda Bal-latin Standinger and others purporting to relate to telephone conversations between representatives of General Electric Credit and Mr. and Mrs. Foreman, was referred to the merits. The objection was based on the ground that the notes were hearsay. The defendant contends the notes were admissible under the business records exception to such rule.

Despite the prohibition of Articles 2248 and 2249 of the Louisiana Civil Code against admitting business records in favor of the party to whom they belong, our courts have seen fit to admit them under certain circumstances. Pritchard vs. Wolfe, 230 So.2d 612 (La.App. 3 Cir. 1970). In that case, the court quoted the following from the law review comment, Business Records in Louisiana as Exceptions to the Hearsay Rule, 21 La.L.Rev. 449:

‘The excellent comment above-cited concludes, 21 La.L.Rev. 459-60: ‘The modern Louisiana cases can be summarized as follows. Records of industrial and commercial organizations, as well as medical reports and hospital records are admissible as proof of their assertions if: (1) persons concerned with recording the information are unavailable for testimony, or production of such persons would be a needless burden; (2) the first collected record available to or usable by the court is introduced; (3) the records are identified at the trial by one familiar with the bookkeeping procedure; and (4) the evidence seems reliable after considering such factors as (a) contemporaneousness of the entry with the occurrence or fact recorded, (b) first-hand knowledge of the entrant, (c) existence of a business or professional duty to record or report the facts in the regular course of business, (d) completeness and honest appearance of the books, (e) absence of fraud in making the entries or in destroying the supporting memoranda and (f) perhaps, whether the books belong to a third party.’ (Page 614).

This court concludes that D-3 was not admissible in evidence, because it was not established that the persons concerned with recording the information thereon were unavailable for testimony or that calling them as witnesses would be a needless burden. Mrs. Standinger testified by way of deposition, but was not questioned as to anything appearing on D-3. No testimony was offered to establish what other person made entries on such document.

Turning now to the question of liability, the general rule of law applicable to a situation such as this appears as follows in Brown vs. Stephens Buick Company, 139 So.2d 579 (La.App. 4 Cir. 1962):

‘Plaintiff relies upon the general rule that an insurance agent or broker who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance and to seasonably notify the client if he, the agent or broker, is unable to obtain the insurance requested. In Louisiana a recovery has been allowed where the actions of the person procuring the insurance were such as to warrant an assumption on the part of the other party that he was covered by suitable insurance and thus protected from claims against which he desired to be insured.’ (Page 582. Underscoring by this court.)

In Bell vs. Precision Motors, Inc., 299 So.2d 886, (La.App. 4 Cir. 1974) the facts and the provisions for insurance in a sale and chattel mortgage were very similar to those in the case at bar. The court held the finance company liable to the buyer-mortgagor for his damages and said:

‘Commercial was not a stranger to the contract between plaintiff and Precision. By supplying the form contract which required insurance and by setting up the financing procedures as a prerequisite to accepting the assignment Commercial in effect required plaintiff in this case to pay the premium and to authorize the purchase of insurance. Under these circumstances Commercial became obliged to secure the insurance or to diligently attempt to notify plaintiff timely if unable to do so. Failing in this obligation. Commercial is liable for the damage thereby resulting to plaintiff, who reasonably relied on the belief that Commercial would obtain coverage.’ (Page 889. Underscoring by this court.)

Thus, the principal question to be decided by the court is whether or not the plaintiff could reasonably assume that he was covered by hull insurance from the time the vessel was purchased until it was damaged. This also required a determination of whether diligent efforts were made to notify the plaintiff that such insurance could not be obtained during such time.

Since Mrs. Clark believed the boat was covered by hull insurance from the time of its sale, the plaintiff certainly had the right to assume that such was the case until properly notified to the contrary. While the court believes that Mrs. Standinger did inform the plaintiff and his wife on more than one occasion before the boat was damaged that she was experiencing difficulty in obtaining the policy, the proof falls short of establishing that they were clearly and ine-quivocally [sic] told at any time that the boat was not insured against hull damage and they would have to get such a policy themselves. It is indeed strange that not one letter to this effect was written by General Electric Credit to the plaintiff after the sale and mortgage on February 4 or 5,1974, until the boat was damaged on June 10 or 18, 1974, or even thereafter, during which time the plaintiff assumed that such insurance was being obtained for him.

This court concludes that General Electric Credit was negligent in failing to so notify the plaintiff and is liable for the property loss which plaintiff sustained that would have been covered by such insurance. Since all of the parties understood that General Electric Credit and not National Boat Mart of Lake Charles, Inc. would obtain such insurance, the latter is not liable in this instance.”

The record bears out the factual and legal conclusions contained in the above quoted opinion and we find no abuse of discretion on the part of the district judge insofar as alleged errors Numbers One and Two are concerned. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We feel, however, that the district judge erred in awarding damages of Six Thousand Five Hundred ($6,500.00) Dollars. We find that plaintiff’s award must be limited to the allowable amount prayed for, i. e., Five Thousand ($5,000.00) Dollars for damages to the vessel, and Nine Hundred ($900.00) Dollars for mooring expenses, or a total of Five Thousand, Nine Hundred ($5,900.00) Dollars.

For the above and foregoing reasons the judgment of the trial court is amended so as to reduce the award to plaintiff to the principal sum of Five Thousand Nine Hundred ($5,900.00) Dollars, and except as amended is affirmed. Costs on appeal are assessed against appellant.

AMENDED AND AFFIRMED.

      . Footnote by Appellate Court — Mrs. Standinger’s testimony was via a deposition.


author: GUIDRY, Judge.

text:
    J. O. HARRISON et al., Plaintiffs-Appellees, v. MISSOURI PACIFIC RAILROAD COMPANY et al., Defendants-Appellants.
    No. 5901.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      B. G. Iverson, Monroe, for defendants-appellants.
    Charles B. Bice, Winnfield, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

The plaintiffs instituted this action to recover the value of certain hogs allegedly killed by trains owned and operated by the defendant, Missouri Pacific Railroad Company (hereinafter referred to as Missouri). This suit is brought pursuant to the provisions of LSA-R.S. 45:504. Also named defendants are D. H. Maddox and T. R. Hicks, engineers allegedly operating Missouri’s trains that killed plaintiffs’ hogs. The trial court rendered judgment in favor of plaintiffs and against the defendant, Missouri. Plaintiffs’ action against the defendants, Maddox and Hicks, was dismissed. Missouri appeals. Plaintiffs have neither appealed nor answered the appeal of Missouri.

A review of the testimony of the plaintiffs, J. 0. Harrison, W. H. Armstrong, Issac Nugent, and Ernest Atwell reveals that all of these men, who lived near Georgetown, Louisiana, in Grant Parish, were veteran hog raisers. All of the plaintiffs raised wood hogs, which were allowed to range at large in and around the Little River area in Grant Parish. Issac Nugent’s hogs ranged in Bear Creek and Cross Bayou Swamp, south of Georgetown. W. H. Armstrong’s hogs ranged in the Little River area, as did the hogs of Ernest and Grady Atwell. J. O. Harrison’s wood hogs ranged near Rochelle, about 2V2 miles north of Georgetown. Wood hogs were permitted to range approximately a 10-12 mile area. Plaintiffs admit that they neither owned the land over which their hogs ranged nor had they secured permission for their operation from the landowners. They testified that the land was open range.

Each of the plaintiffs owned a large herd of wood hogs averaging about 150 head. The hogs were identified by the owner’s crop mark. The testimony reflects that generally the plaintiffs did not feed their hogs, although they usually visited the range area about once a week. Plaintiffs gathered their hogs together by the use of dogs or caught them by baiting traps.

Although the defendant offered no evidence it is clear that it maintained and operated an unfenced right of way through these range areas. Its tracks were slightly elevated.

Plaintiffs’ testimony further indicates that during the middle part of July 1973 they noticed that a large number of their hogs had been killed. All of the dead hogs, whose mangled remains had been strewn along the site of defendant’s railroad track, were found in their respective range areas. Plaintiffs also noticed quantities of corn grain running down the length of the defendant’s track. Plaintiffs testified that their hogs rarely grazed on defendant’s cleared right of way. The plaintiffs testified that the presence of the corn grain obviously attracted the hogs to the railroad tracks. None of the plaintiffs actually saw the defendant’s train kill their animals. All of the plaintiffs with the exception of Ernest and Grady Atwell described with particularity the losses they had sustained.

The trial court made the following awards:

J. 0. HARRISON
4 sows - 800 lbs.
3 boars - 675 lbs.
14 shoats - 1260 lbs.
7 shoatey pigs - 175 lbs.
At an average of 33$ per pound J. 0. Harrison sustained a total loss in the amount of $960.30.
ISSAC NUGENT
2 sows - 140 lbs.
7 shoats - 420 lbs.
5 boars - 620 lbs.
6 pigs - 90 lbs.
At an average of 33$ per pound Issac Nugent sustained a total loss in the amount of $420.75.
W. H. ARMSTRONG
2 sows - 300 lbs.
4 shoats - 420 lbs.
6 pigs - 120 lbs.
At an average of 33$ per pound W. H. Armstrong sustained a total loss in the amount of $204.60.

The trial court granted Ernest Atwell an award of $2,500.00 and Grady Atwell an award of $500.00.

Appellant does not question the quantum of the awards to Harrison, Nugent and Armstrong but does question the awards to the Atwells urging that these awards were not supported by sufficient proof.

As aforestated this suit is brought under the provisions of LSA-R.S. 45:504, which reads as follows:

“In suits against railroad companies for the loss of stock killed or injured by them, it is sufficient, in order for the plaintiff and owner to recover, to prove the killing or injury, unless it is shown by the defendant company that the killing or injury was not the result of fault or carelessness on their part or the negligence or indifferent running or management of their locomotive or train.”

The jurisprudence is well settled that under the provisions of this statute once the plaintiffs establish their case by showing their animals were killed by the train the burden of proof then shifts to the railroad to show that the killing was not the result of fault or carelessness on its part. Lafleur v. Texas & Pacific Railroad Company, 116 So.2d 844 (La.App. 1st Cir. 1959); Bush v. Texas & Pacific Railroad Company, 191 So.2d 508 (La.App. 3rd Cir. 1966).

The trial court made the following findings of fact which we here quote:

“1. Beginning in July, 1973, and continuing for several months thereafter, defendant’s trains spilled large quantities of corn on and along its tracks in the general vicinity of Selma and Georgetown, Grant Parish, Louisiana.
2. Plaintiffs’ hogs ranged in woods along this section of defendant’s tracks and were attracted to the tracks by the corn.
3. While feeding on this corn, plaintiffs’ hogs were killed by defendant’s trains.
4. The presence of the corn on the tracks prevented plaintiffs from trapping their hogs and keeping the hogs from defendant’s tracks.
5. Defendant’s tracks were unfenced.”

On the basis of the quoted conclusions the trial court rendered judgment in favor of plaintiffs. Appellant contends that this was error in that the evidence did not warrant the rendition of judgment because plaintiffs failed to establish “where the various killings took place with sufficient certainty to allow defendant railroad a reasonable opportunity to prepare its defense.”

We find no merit in this contention. Following the institution of suit defendant filed an exception of vagueness asserting that plaintiffs’ petition did .not give specific dates as to particular accidents involving particular animals or the exact location of such accidents. Following the filing of this exception plaintiffs amended their petition so as to set forth, to the extent possible, the information sought by this exception. The amended petition contained the following information which we summarize:

1. From July 12, 1973 through July 20, 1973, Grady Atwell’s, Ernest Atwell’s, Issac Nugent’s and W. H. Armstrong’s hogs were killed by the defendant railroad in an area from Selma Crossing to Creek Crossing “trussel” in Grant Parish.

2. From July 12, 1973 through July 20, 1973 plaintiff, J. 0. Harrison’s hogs were killed by the defendant railroad in an area between Rochelle, Louisiana and Georgetown, Louisiana located in Grant Parish. Presumably the defect in plaintiffs’ original petition was satisfied by this amendment since defendant did not thereafter file an additional exception of vagueness but filed answer to this supplemental petition and the original petition generally denying the allegations thereof.

In an action under LSA-R.S. 45:504 the burden is upon plaintiff to establish the killing of an animal or animals by the railroad; his ownership of such animals; and, the value thereof. Upon such showing the burden shifts to the railroad to show its lack of fault and/or freedom from negligence. We know of no authority statutory or otherwise which requires that the plaintiff in addition establish the exact date, exact time or the exact location of the killing with surveyor’s accuracy. The information set forth in plaintiffs’ petition informed defendant as to the number of animals killed; the ownership and value thereof; the time span during which these animals were killed; and, the general location where such killings occurred. This was sufficient to enable Missouri to prepare its defense if one it had. Missouri must have been satisfied with the information set forth in plaintiffs’ original and supplemental petition for it thereafter filed answer. The trial court found from the evidence adduced that plaintiffs established their ownership of certain animals which were killed by the defendant railroad and the value thereof. The trial court further found that defendant had not shown its lack of fault or freedom from negligence. We find a reasonable factual basis in the record to support these conclusions. Such findings were sufficient to warrant the judgment rendered absent a showing of contributory negligence on the part of plaintiffs which brings us to defendant’s second assignment of error.

As aforesaid appellant contends that the trial court erred in failing to find that plaintiffs were guilty of contributory negligence in that plaintiffs became aware of the hazard and failed to act to avoid their losses. The trial court determined that plaintiffs were not guilty of contributory negligence for, although aware of the presence of the corn on the track, they were unable to remove this grain because of its being spread over miles of track. In addition, the continued presence of the corn on the track, which extended for miles, when coupled with the fact that plaintiffs’ hogs ranged an approximate twelve mile area, made plaintiffs’ attempts to trap their hogs almost impossible. We find no error in these conclusions of the trial court. Like the trial court we determine that defendant failed to carry its burden of establishing contributory negligence on the part of plaintiffs.

We finally consider defendant’s contention that the trial court erred in finding that plaintiffs, Grady and Ernest Atwell, met their burden of proving damages. In awarding damages to Grady and Ernest Atwell the trial judge in his written reasons for judgment stated:

“Ernest Atwell testified that he counted the number of hogs he lost and also the number that his son, Grady Atwell, lost. He estimated the weights of these hogs and made notes as to the number and the weights lost by each. He subsequently gave these two lists to J. 0. Harrison but does not know what happened to them after that. A list was produced in Court which had been typed by Theresa Robinson who also typed up the list for Mr. Nugent, Mr. Armstrong and Mr. Harrison. Miss Robinson testified that she verified the lists made by her against the originals that had been given to her by Mr. Harrison and that she had prepared the list that was produced in behalf of Ernest Atwell. However, Mr. Atwell had no independent recollection of the number of his swine that was killed and could not refresh his memory by reading the list prepared by Miss Robinson. Plaintiff contends that the list was admissible in evidence as a past recollection recorded. The Court agrees that the copy of the list was admissible in evidence, however, the Court does not accept it as final proof of the losses sustained by Mr. Atwell.
According to that list, Mr. Atwell claims the loss of 63 hogs of a total weight of 11,345 pounds and 21 pigs of a weight of 420 pounds. I am satisfied from the evidence that Mr. Atwell lost a substantial number of hogs and pigs and lost more than any other plaintiff in this proceeding. I am not satisfied that he has established his damages in the sum of $3,882.45 as claimed and the Court, under the circumstances, must fix the quantum as best it can. Fontenot Roshong v. Travelers Insurance Company, et al., [La.App.] 281 So.2d 785; Demattia (sic) v. Dimattia, [La.App.] 282 So.2d 554. Accordingly, the Court will award Mr. Ernest Atwell damages in the amount of $2,500.00.
Plaintiff Grady Atwell was unable to testify as to the number hogs that he lost, the weight thereof or the value thereof. He depended upon the count and list made by his father, Ernest Atwell. However, this list was also lost prior to trial and Mr. Ernest Atwell had no independent recollection of the number of hogs or the weight of the hogs lost by Grady Atwell. The Court is satisfied that some of Grady Atwell’s hogs were killed by defendant’s train in the same manner as all of the others involved in this case and, therefore, the Court will fix damages for Grady Atwell in the amount of $500.00.”

We find no manifest error in the trial court’s determination in this regard.

For the foregoing reasons the judgment appealed from is affirmed. All costs of these proceedings to be borne by the defendant-appellant.

AFFIRMED.


text:
    SUCCESSION of O. D. GUIN et al., Plaintiffs-Appellees, v. Joe B. McDANIEL and Sybil Jean Guin McDaniel et al., Defendants-Appellants.
    No. 5909.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      Baker, Culpepper & Brunson by James E. Beal, Natchitoches, for defendants-appellants.
    Whitehead & McCoy by Charles R. Whitehead, Jr., Natchitoches, R. E. Gaha-gen, Natchitoches, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

Appellees, Thomas Guin, individually, and as executor of the Succession of O. D. Guin, Mr. R. C. Guin, Mrs. Emma Guin Wallace, Obie Guin, Mrs. Sarah Guin Lonadier, and Barbara Sue Guin LaPrarie, legitimate children of decedent, O. D. Guin, sued their sister, Sybil Jean Guin McDaniel, and her husband, Joe B. McDaniel (now deceased and his absent heirs represented by curator). Plaintiffs’ action was brought to set aside a transfer of 54.36 acres of land from decedent to Sybil and Joe McDaniel in 1968.

The purported transfer was accomplished by two cash sale deeds, both of which recited the consideration to be $100.00 in cash and “other valuable consideration”. The deeds further stated that the actual consideration was a promise by vendees to live near the home of Mr. Guin and to care for him for the remainder of his life.

The testimony of an appraiser, Mr. T. J. Stephens, affixed the value of the property at $15,548.00. Mr. L. M. Rushing testified that he loaned Mr. McDaniel $4,500.00 to pay for the property, but that Mr. Guin had returned the check to Mr. Rushing. Mrs. McDaniel testified that she gave her father $100.00 for the property, but there were no witnesses to this transaction and no other corroborating evidence. She also testified that she actually lived near her father and cared for him, and her brother Tom Guin corroborated this testimony to some extent, but he also testified that another sister Emma, also a party to this suit, helped care for her father for a couple of years up until an argument with Sybil caused Emma to leave. Mr. Guin continued to live on the property after the deeds were passed.

The trial judge in his oral reasons for judgment concluded that Mr. Guin did not receive the cash consideration in the deed. He held the transfer to be a pure simulation and that the property belonged to the Succession of O. D. Guin. Defendants appeal this judgment. We affirm the judgment of the district court.

Appellants assign as error the finding of the district judge that there was a lack of consideration despite the statements in the authentic acts of sale that consideration was given. They argue in brief that the trial judge should not have admitted testimony of L. M. Rushing as to what Mr. Guin did with the $4,500.00 check after it was delivered to him by Mr. McDaniel, because this is parol evidence introduced to invalidate an authentic act.

Parol evidence is admissible for the purpose of invalidating an authentic act where there are allegations of fraud and error in the confection of the contract. C.C. Art. 2236. It is also well settled that parol evidence is admissible to prove a simulated transfer of property. Miles v. Miles, 328 So.2d 394 (La.App. 3rd Cir. 1976), C.C. Arts. 2239, 2444, 2480. Therefore, this assignment of error is without merit.

Appellants also maintain that the trial court erred in not giving weight to the testimony of Mrs. McDaniel that she cared for her father as agreed upon in the cash sale deed. If any consideration is given, no matter how small, the transfer is not a simulation. Services are considered valid consideration. Bell v. Bell, 339 So.2d 1333 (La.App. 3rd Cir. 1976); Russell v. Culpepper, 337 So.2d 226 (La.App. 3rd Cir. 1976). The district judge in his oral reasons for judgment did not address the issue of services rendered as consideration. The trial court must have disbelieved that such services were actually rendered to have found a pure simulation. Factual conclusions of the trial judge, particularly where credibility of witnesses is involved, should not be disturbed on appellate review except on a finding of manifest error. Montgomery v. Breaux, 338 So.2d 314 (La.App. 3rd Cir. 1976).

In Canter v. Koehring Company, 283 So.2d 716 (La.1973), the Supreme Court stated that appellate courts should not disturb reasonable evaluations of credibility by the trial judge.

Therefore we hold that this was a sale in contravention of the Civil Code Articles relating to simulations and that the property does indeed belong to the Succession of 0. D. Guin.

For the above reasons we affirm the judgment of the district court, and cast costs against appellants.

AFFIRMED.

      . We take note here that the Supreme Court has granted writs in Russell v. Culpepper, 340 So.2d 314, 315.


author: FORET, Judge.

text:
    Mary NORRIS, Individually, and as tutrix of the minor, Robert Lee Chew, Plaintiff-Appellant, v. Marshall T. CAPPEL, Sheriff of Rapides Parish, Defendant-Appellee.
    No. 5912.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Gravel, Roy & Burnes by Dee D. Drell, Alexandria, for plaintiff-appellant.

      P. Spencer Torry, Alexandria, Holt, Wagner & Lee by Richard E. Lee, Pineville, for defendant-appellee.
    Before GUIDRY, FORET and HEARD, JJ.
   FORET, Judge.

This is a suit by plaintiff, individually, and as the natural tutrix of the minor child, Robert Lee Chew for medical expenses and damages for personal injuries allegedly sustained by Chew while he was incarcerated in the Rapides Parish jail. After trial on the merits, the trial court rendered judgment in favor of the defendant dismissing plaintiff’s suit at his costs. Plaintiff has filed this devolutive appeal.

Plaintiff’s petition alleges that he was arrested for burglary on or about July 25, 1974, in Rapides Parish, and has been incarcerated in the Rapides Parish jail ever since that date. On Saturday, May 31, 1975, while so incarcerated, the toilet in the cell block where plaintiff was being detained became stopped up, and the water from the toilet flooded the floor. Plaintiff alleges that this fact was called to the attention of the jailer in charge, but that for a period of three days this condition was not repaired and water continued to flood, creating a slippery and hazardous condition. Plaintiff alleges that on May 31, 1975, he slipped and fell upon a gas heater, burning himself severely about his body, which injury was promptly reported to the jailer in charge. Plaintiff alleges that he was not given prompt medical attention although the fact of his injury had been brought to the attention of the jailer in charge.

Defendant filed an exception of non join-der of an indispensable party, to-wit, the Rapides Parish Police Jury. The trial court overruled this exception prior to trial on the merits, and that matter is not before us.

We will first examine plaintiff’s claim for damages based on his allegation that he did not receive prompt medical attention after having been burnt. The evidence indicates that plaintiff burned himself at approximately 9:30 A.M. The charity hospital records which were introduced into evidence indicate that he was brought to the hospital at approximately 12:30 P.M. on May 24, the date of the alleged accident. Neither the hospital records nor the photographs introduced in evidence indicate that plaintiff’s burns were of a severe nature. Accordingly we find no merit in plaintiff’s claim in that regard.

Addressing ourselves to the issue of defendant’s negligence, we quote from the reasons for judgment handed down by the trial court:

“The Court heard the witnesses for the plaintiff and found that their testimony was generally in conflict and inconsistent. The defendant called on behalf of the defendant the chief deputy sheriff, who is in direct charge of the jail, and also Mr. John H. Randall, the chief jailer, and Mr. Edward Blair Ozier. Their testimony indicated that although the burning incident took place because notification was given to them, that there was no complaint as to a stoppage of the plumbing. The Court is convinced from the procedure indicated by the evidence, namely, that if there had been any stoppage that it would have been reported, that the building superintendent would have been involved. Mr. Ozier stated that when he was called in about the burning, that he saw no flooding, and that no complaint was made of any flooding. He indicated that the floor might have been damp, but he saw no water on the floor.
“In any event, the Court is of the opinion that the plaintiff has not proved that it is more probable than not that he slipped because of anything on the floor; and in any event there was no proof that if the floor was damp or anything was on the floor, that it was due to the negligence of the sheriff or anyone working for the sheriff or in a position with the sheriff’s office or the Parish of Rapides . . ”

The issues presented in this case are factual only and a review of the record leads us to the same conclusion as that reached by the trial court, and we have no difficulty in affirming the decision of the trial court.

All' costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . The suit was originally brought by Mary Louise Norris as the tutrix of Robert Lee Chew, who was a minor on the day of the alleged accident. However, subsequently Robert Lee Chew attained his majority and was substituted as party plaintiff in place of his mother.

      . Plaintiff has subsequently amended his petition to allege the accident date as being Saturday, May 24, 1975.


author: LEMMON, Judge.

text:
    SHELL OIL COMPANY v. Milton A. KENNEDY.
    No. 7430.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Montgomery, Barnett, Brown & Read, Daniel Lund and Nathan T. Gisclair, Jr., New Orleans, for plaintiff-appellee.
    Band, Hopkins & Martin, David Band, Jr., New Orleans, for defendant-appellant.
    Before LEMMON, SCHOTT and MORIAL, JJ.
   LEMMON, Judge.

This appeal questions the validity of a compromise executed by Shell Oil Company and Milton Kennedy in connection with the termination of their dealer agreement.

Shell and Kennedy had executed two contracts in August, 1972, whereby under the lease contract Kennedy agreed to lease a service station owned by Shell for three years under certain conditions, including minimum rent, and under the dealer contract Shell agreed to deliver and Kennedy agreed to purchase certain Shell products. In connection with the contracts Kennedy furnished $6,500.00 in cash and borrowed $14,650.00 (represented by two promissory notes) from Shell for inventory and other necessities in commencing the operation. The parties terminated their relationship on November 17, 1972.

Shell commenced the action by filing suit for the balance of $1,851.38 due on the two promissory notes, after credit was given for return of unused inventory items. Kennedy reconvened for damages, alleging Shell’s breach of the dealer contract and violation of anti-trust laws, and he requested a trial by jury. Shell responded to the reconven-tional demand with an exception of res judicata, alleging that the parties had signed a “Termination Agreement”, in which they mutually released each other from all claims arising out of the dealer contract.

The exception came on for hearing, and the trial judge received evidence as to whether Kennedy knowingly and willingly compromised his claim against Shell. Kennedy has now appealed from the subsequent judgment which maintained the exception and dismissed the reconventional demand.

I

Kennedy first contends that the factual issue as to the validity of the compromise is one for the jury and should not have been decided by the judge in advance of the trial on the merits.

In Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972) the Supreme Court held that a trial judge may properly determine, in advance of a jury trial on the merits, the peremptory exception of no right of action, even when factual evidence must be evaluated in order to make the determination. The court noted that many factual issues are denied jury deliberation, even in federal and common law state jurisdictions, and that the right of a Louisiana appellate court to review facts additionally prevents prejudice in this case. The court concluded that a plaintiff is not denied the right of trial by jury because our procedural system requires or permits certain issues to be decided by the judge alone in advance of the trial. See also C.C.P. art. 929; Bowden v. State Farm Mut. Auto. Ins. Co., 150 So.2d 655 (La.App. 3rd Cir. 1963).

While an argument for presenting all factual issues to the jury contains considerable merit, our procedural system apparently contemplates the use of devices such as the peremptory exception to avoid full-scale trial of actions which may be finally determined by the trial in advance of a conveniently separable issue. In the present case a decision sustaining defendant’s exception disposes of the entire case without the necessity of a lengthy trial of such issues as contract breach and damages. Although the compromise could also have been pleaded as an affirmative defense to be tried on the merits, we hold that the trial judge acted properly in determining the validity of the compromise at a trial on the exception in advance of the merits, thus avoiding trial of the entire matter.

II

Kennedy also contends that the trial judge erred in maintaining the exception of res judicata under the facts of this case.

The evidence consisted of the termination agreement and four volumes of deposition testimony by Kennedy. The compromise was a simple form agreement containing only the following provisions:

“THIS IS AN AGREEMENT, dated November 17, 1972, between SHELL OIL COMPANY, a Delaware corporation (herein called “Shell”) and Milton A. Kennedy of 713 Sadie Avenue in Metairie. Louisiana (herein called “Dealer”):
“1. TERMINATING, effective as of November 17. 1972, each of the following instruments between them:
Dealer Lease dated August 8, 1972
Dealer Agreement dated August 8, 1972
relating to the automobile service station located at 4601 Jefferson Highway in New Orleans. Louisiana: and
“2. RELEASING each other, as of the date of this Agreement, from all claims which each now has against the other (whether or not known to either) arising directly or indirectly under, out of or in connection with each terminated instrument, or any consignments, sales or deliveries of petroleum products by Shell to Dealer, excepting, however, claims of Shell against Dealer for indebtedness, reimbursement or indemnification, or relating to personal property of Shell heretofore or now in Dealer’s possession.”

Kennedy admitted that he signed the termination agreement and a bulk sales agreement and initiated some inventory forms on his last day at the station; that no one lied to him about the document, misled him, forced him to sign or deprived him of the opportunity to read the document, although he did not take the opportunity to read it; that he didn’t question the document or bargain over it; and that he understood the import of the agreement when he read it during the deposition. He also conceded that his purpose in meeting with the Shell representatives at the station that day was “to get out of the obligations” and that at the time he had no idea of a suit against Shell.

Kennedy’s only complaint in his testimony is that no one specifically explained the agreement to him. He has shown no basis, however, for us to impose upon Shell a duty to do so.

The terms of the agreement are unequivocal and unambiguous. Indeed, the terms were such as would be expected in the termination of this type of relationship involving inventory and financing. Furthermore, Kennedy has not shown any circumstances which would invalidate his consent to the agreement.

Compromises to avoid litigation are favored. Since there were no circumstances shown to justify rescinding the compromise, we conclude the agreement has a force equal to the authority of things adjudged. C.C. art. 3078.

The judgment is affirmed.

AFFIRMED.

      . Kennedy was a high school graduate with several years of college and training school credits.

      . Kennedy did state that during the inventory someone told him it looked like he would get some money back. However, he did not even contend in his testimony that his consent to the termination was given in reliance on this statement.


text:
    Lorraine FRAZER v. NEW ORLEANS PUBLIC SERVICE, INC., et al.
    No. 7928.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      William M. Detweiler, New Orleans, for plaintiff-appellee.
    Emile L. Turner, Jr., New Orleans, for defendants-appellants, Richard E. Smith and Royal Indemnity Co.
    C. B. Ogden, II, New Orleans, for defendants-appellees, New Orleans Public Service, Inc. and Andrew J. Barnewold, Sr.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   LEMMON, Judge.

This case involves a collision between a car and a city bus. Richard Smith and Royal Globe Indemnity Company, the insurer of the rented car Smith was driving, have appealed from a judgment, following a trial on the merits, which found Smith and the bus operator jointly liable for the accident.

Plaintiff, who was a passenger on the bus, and the bus operator were the only two witnesses who testified in the case. (Smith was a California domicilliary, and his attendance could not be compelled.) Since plaintiff’s testimony completely exonerated Smith, the trial court was presented with two conflicting versions of the occurrence.

The basic premise of Smith’s appeal is that this was an either/or situation — either he \vas liable, or the bus operator was liable. Smith argues that it is impossible to construe the conflicting evidence in this case so as to find both drivers negligent. We agree.

The accident occurred at the intersection of Canal and Basin Streets in New Oi’leans. At this point Canal Street ran north-south and was divided by a wide neutral ground, on which city buses traveled in both directions. Canal Street itself had three lanes for traffic in each direction. Basin Street ran east-west and was a much narrower street which had no neutral ground within the intersection. There was a “no left turn” sign facing northbound traffic on Canal Street.

The bus operator testified: He was traveling north at about 15 miles per hour in the bus lane on the neutral ground; Smith was traveling north in the middle lane of Canal Street “a few feet ahead of the bus”, and Smith maintained that distance as they approached the intersection; the light was green for Canal Street traffic; when Smith was about halfway across Basin Street, Smith made a wide left turn across his path; he applied his brakes and veered to his left about two feet into the southbound bus lane in an attempt to gain more stopping distance, but struck the car at the left rear door; and the car was moving at impact, but did not move at all after the impact, which caused very little damage to the car.

On the other hand, plaintiff testified: She was all the way in front of the bus, standing between the driver and the door preparatory to leaving the bus at the next stop; she first noticed Smith’s car when “we had crossed Canal and Rampart”, the intersection just before the one at which the collision occurred; at the time she first noticed it, the car was stopped within the Canal Street neutral ground in the bus’ path; the bus was moving at a fast rate of speed, and the bus operator “kept ahitting something” with his right foot but “couldn’t stop so he went around”; and as the bus got close, the car moved up, and they collided in the southbound bus lane. Plaintiff was injured when she fell backward at impact.

The two versions were directly conflicting. In one the car was completely stopped, and the bus driver was solely negligent. In the other the car made a sudden, illegal left turn, and Smith was solely negligent. Under neither version could both drivers be negligent.

In considering which of the two contradictory versions should have been accepted, we view the bus driver’s version as implausible. It was virtually impossible for Smith to make a wide left turn from the middle vehicular lane, when only a few feet in front of the bus, and be struck in the left rear, with the point of impact at least partially in the southbound bus lane. Furthermore, the trial court apparently found at least part of plaintiff’s testimony to be credible, since she did not report an injury to the bus operator or to his company but obtained an award solely on her uncorroborated testimony of being injured while on the bus. When all of these circumstances are considered, this record does not support a judgment finding Smith liable.

Accordingly, the judgment of the trial court is reversed in part, and it is now ordered that plaintiff’s suit against Richard Smith and Royal Globe Indemnity Company be dismissed.

REVERSED IN PART.

      . The bus operator and the bus company did not appeal, and the judgment against them is now definitive.


author: BOUTALL, Judge.

text:
    Mr. and Mrs. Ralph CROWLEY v. Charles FOSTER et al.
    No. 7941.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      Joel P. Loeffelholz, New Orleans, for Mr. and Mrs. Ralph Crowley, plaintiffs-appellants.
    Post & Reinhardt, Metairie, for Gertrude Gardner, Inc. and John William Meehan, III, defendants-appellees.
    Before BOUTALL, MORIAL and BEER, JJ.
   BOUTALL, Judge.

This is an appeal from a summary judgment in favor of defendants, Gertrude Gardner, Inc. and John William Meehan, III, dismissing plaintiffs’ suit against them. The issue is the applicability of summary judgment.

Plaintiffs-appellants, Mr. and Mrs. Ralph Crowley, purchased a home from the defendants Charles Poster and Jack Allen, doing business as Alpha Builders, on October 8, 1974. Gertrude Gardner, Inc. was the real estate broker who handled the transaction through its agent John William Meehan, III. Alleging that the house purchased was incomplete and contained defects in workmanship, on October 7, 1975, plaintiffs filed suit against all defendants. Although entitled “Petition in Quanti Mi-noris” it is apparent that the suit contains in reality two demands. The first is a demand in quanti minoris against the vendors for reduction in purchase price, damages and attorneys’ fees, and judgment is asked for these items only against the vendors. The petition then contains additional -allegations, saying that Gertrude Gardner and Meehan by fraud and deceit lured and forced plaintiffs into the offer and sale, that their commission was not earned because it was their duty to see to it that the defects were remedied before the sale, and they knew plaintiffs were not willing buyers and are responsible for the return of their commission, paid by plaintiffs, of $2,520.00. Judgment of this amount is asked only against those two named defendants.

Gertrude Gardner and Meehan filed a motion for summary judgment, supported by affidavits and documents, contending that plaintiffs paid nothing to them, that their fee was paid entirely by the vendor, and that plaintiffs are not entitled to recover something which they did not pay. A summary of the uncontested facts show that on August 14, 1974, plaintiffs offered to purchase the subject house for $42,000 conditioned upon the ability to make a specified loan and deposited 10% of the purchase price, or $4,200. The document further stated that if the offer was accepted, the seller agreed to pay the agent’s commission of 6% to be equally divided between Gertrude Gardner, Inc. 3% and Alpha Builders 3%, and the commission is earned by the agent when the agreement is signed by both parties when the mortgage loan had been secured. The agreement was accepted the next day by Charlie Foster. The Crow-leys made the necessary deposit and it was held by Gertrude Gardner in a special account.

On September 23,1974, Gertrude Gardner drew three checks on that account, one to itself as its share of the commission, one to Charlie Foster for his share of the commission and one to Charlie Foster for the balance to be applied to the purchase price. These checks were not cashed until after the Act of Sale. Also, on October 8th, the date of sale, Gardner drew on its own account two checks to its selling agent Mee-han and listing agent Audrey Fitzner. The Act of Sale was passed October 8, 1974.

The affidavits of the plaintiffs do not dispute these facts but do urge a different conclusion, to-wit:

“The money paid for the real estate commission herein were (sic) in fact paid by affiants and not the sellers as said monies were taken from affiants ($4,200.00) and disbursed well in advance of the act of sale on September 23, 1974 by Gardner before title passed to affiants and therefore affiants, not sellers, paid the commissions.”

The trial judge considered these were conclusions not contested facts and so do we.

Referring again to the agreement between the parties, we again note that the seller agrees to pay the commission and that the commission is earned when the agreement is signed and the mortgage loan is secured. It was not until after the Act of Sale that the checks were presented for payment. Under these circumstances, we agree with the trial judge’s conclusion that it was the sellers and not the plaintiffs-buyers who paid the real estate commission of defendants, and that not having paid the fee, they cannot ask for its return.

In reaching this conclusion, we are deeply troubled by the allegations of fraud made against the defendants in this appeal. The allegations made in appellants’ affidavits are uncontested in this respect, but we do not consider them relevant to the particular relief sought. We also reiterate that these defendants are not made parties-defendant to the demand against the other defendants.

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

AFFIRMED.


author: LEMMON, Judge. SAMUEL, Judge,

text:
    Sara Jackson, wife of and James R. SUTTERFIELD, et al. v. FIREMAN’S FUND AMERICAN INSURANCE COMPANY et al.
    No. 7953.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      Sutterfield & Vickery (James R. Sutter-field), New Orleans, for plaintiffs-appellees.
    Beard, Blue, Schmitt & Mathes (Robert M. Johnston), New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and LEM-MON, JJ.
   LEMMON, Judge.

This suit by James Sutterfield seeks recovery against his liability insurer under uninsured motorist coverage for injuries sustained by him, his wife and his children in an automobile accident. The insurer appealed after an adverse judgment following a trial on the merits.

On appeal the insurer reasserts its exception of res judicata on the basis that Sutter-field divided' an “obligation due him” in violation of C.C.P. art. 425 by proceeding to judgment in an earlier separate suit for collision damage and accordingly lost his right to enforce the remaining portion of the insurer’s obligation. The insurer alternatively contends that some of the awards were excessive.

Division of Obligation

When the insurer paid only part of Sut-terfield’s claim for property damage, he filed a suit in city court to enforce the insurer’s obligation under the collision coverage. The following week Sutterfield filed this suit in district court to enforce the insurer’s obligation under the uninsured motorist coverage. The insurer did not file an exception of lis pendens or raise any other objection to the multiple suits, but simply filed answers in both suits.

When the city court suit came on for trial, the parties agreed to compromise the claim under the collision coverage. Sutter-field requested preparation of a compromise agreement and restricted release, but the insurer’s attorney suggested that the compromise take the form of a consent judgment, later admitting in testimony in this case that he wanted to have a judgment of record in the property damage suit as a basis for pleading res judicata to his client’s insured’s major claim.

Three days after the consent judgment was filed, the insurer filed in this case an exception of res judicata and a motion for a summary judgment, contending that Sut-terfield had divided an obligation due him and under C.C.P. art. 425 had forfeited his right to enforce the remaining portion of the obligation. The trial court referred the exception to the merits and ultimately rendered the judgment now under review. We affirm, holding that the codal article and concepts of res judicata do not apply under the facts of this case for several reasons.

C.C.P. art. 425 provides:

“An obligee cannot divide an obligation due him for the purpose of bringing separate actions on different portions thereof. If he brings an action to enforce only a portion of the obligation, and does not amend his pleading to demand the enforcement of the full obligation, he shall lose his right to enforce the remaining portion.”

Article 425 is a corollary to the doctrines of res judicata and estopped by judgment. The public policy purpose of all these doctrines is to avoid a multiplicity of suits and to prevent harassment, delay and unnecessary expense to a defendant caused by multiple suits. Article 425 was obviously intended to apply only after judgment in one of the “action(s) to enforce only a portion of the obligation”, since the article applies when the obligee “does not amend his pleading to demand the enforcement of the full obligation”, a step the obligee can take at any time prior to judgment in any of the actions.

Any harassment, vexation, delay or unnecessary expense to defendant became apparent as soon as the second suit was filed. Our situation is thus distinguished from one in which an obligee files a second action after judgment in a first action on a portion of an obligation [as occurred in Lisenbey v. Farm Bureau Mut. Ins. Co. of Ark., 245 Ark. 144, 431 S.W.2d 484 (1968), whose rationale our defendant relies upon].

When Sutterfield filed his second action, the defendant could have complained at that time of harassment, vexation, delay and undue expense (by pleading an exception of lis pendens or some other objection to two actions for enforcement of different portions of an allegedly single obligation). Then, some section of the judicial system could have protected defendant and prevented duplicative judicial effort by issuing a protective order if the objection was meritorious. Instead, this defendant withheld objections in hope of beating its own insured out of recovery of a substantial sum which was undoubtedly due under the policy. If we allowed the law to operate technically for such a purpose, we would indeed depart from all notions of justice and fair play.

Finally, defendant’s success in any defense based on Article 425 depends ultimately upon applicability to the city court judgment of res judicata and/or estoppel by judgment. C.C. art. 2286, providing the Louisiana requirements for res judicata, does not apply by its terms, because (even if the thing demanded is founded on the same cause of action) the thing demanded in the two suits is not the same. For res judicata to apply in Louisiana, there must be identity of parties, of causes of action and of demands.

When the triple identities are not present, however, estoppel by judgment may still bar relitigation of an issue or an action which was settled by prior litigation. See California Co. v. Price, 234 La. 338, 99 So.2d 743 (1957).

In the present case, even if we consider the compromise of the city court suit (by payment of the full amount claimed plus court costs) to be a judicial determination of defendant’s obligation “to pay for loss caused by collision”, separate and vastly different issues, involving other facts and elements of proof, must be litigated in order to determine defendant’s obligation under its uninsured motorist coverage.

The insurer undertook several obligations by entering into the insurance contract. Pertinent to this ease the insurer undertook (1) in Part III, Coverage E—Collision, “(t)o pay for loss caused by collision to the owned automobile . . . for the amount of each such loss in excess of the deductible amount stated in the declarations”, and (2) in Part IV, Coverage G—Uninsured Motorists, “(t)o pay all sums which the insured . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile”.

Thus, the accident not only gave rise to a tort “obligation due him” (Sutterfield) by the uninsured motorist to repair damages, but also gave rise to two contractual obligations due him by his own insurer. In an action on the first “obligation due him”, it was necessary for Sutterfield to prove a loss caused by collision and the amount of the loss. In an action on the second “obligation due him”, it was necessary for him to prove legal entitlement to damages from an uninsured motorist because of bodily injury and the amount of damages.

While the city court action may be said to have settled the issues of whether there was a loss by collision and what was the amount of that loss, that judgment cannot reasonably be said to have settled the issues pertinent to recovery under uninsured motorist coverage. In view of all of the foregoing considerations, we decline to hold that Sutterfield’s filing of the city court action to enforce the collision obligation and agreeing to compromise that claim in the form of a consent judgment precludes his right to enforce the uninsured motorist obligation under any theory of division of obligation, res judicata or estoppel by judgment.

Damages

Defendant questions, as excessive, the awards to Sutterfield and his two children. Sutterfield has answered the appeal, seeking an increase in his award.

The children sustained bumps on the head, described as “goose eggs”, were examined in the hospital emergency room and then released. They underwent no further treatment.

We cannot say that an award of $250.00 each for the minor injuries, which obviously caused some pain and anxiety, was an abuse of the trial court’s discretion.

Sutterfield sustained sprains of the cervical and lumbar spine in the September 14, 1974 accident. He consulted Dr. Raymond Kitziger, an orthopedic surgeon who had previously treated him for a lumbar disc problem which required surgery in 1972. Significantly, Sutterfield had no further back problems from the time of postoperative discharge until the accident.

Dr. Kitziger treated Sutterfield conservatively, examining him periodically through February, 1975. Sutterfield returned in May, 1975, complaining of neck and back problems. Thereafter, he had no further neck complaints, but did continue to experience intermittent back pain after periods of standing or sitting in one position.

Noting increased narrowing of the disc spaces between the date of the accident and the date of his last examination 14 months later, Dr. Kitziger admitted that the narrowing could happen with the passage of time, but opined that “the trauma must interplay some in here”.

Sutterfield missed no substantial amount of time from his law practice because of the accident.

On this record an award of $7,500.00 in general damages is not so inadequate or so excessive as to constitute an abuse of the much discretion vested in the trial judge by C.C. art. 1934(3).

The judgment is affirmed.

AFFIRMED.

SAMUEL, Judge,

concurring.

I must disagree with the majority’s apparent acceptance of an unlimited use of the doctrine of estoppel by judgment. The statement contained in my concurring opinion in Brown v. Globe Tool & Engineering Co., La.App., 337 So.2d 894, 899, fully applies here:

“Insofar as the exception is based on the doctrine of estoppel by judgment, for the reasons expressed in Bordelon v. Landry, La.App., 278 So.2d 173, I am of the opinion that doctrine should not judicially be made applicable in this state beyond its presently existing exceptions; and this case is not one of those exceptions.”

However, as the exception of res judicata clearly must be overruled because the requirements of that doctrine (C.C. Art. 2286) are not met, and as I agree with the decree of the majority,

I respectfully concur.

      . In rejecting the res judicata exception, the trial court observed:
      “The Court concludes that the coverages provided by the policy are severable, since the benefits provided under each type of coverage are distinct, the factual considerations under which the benefits are due are different, and separate premiums are charged for each coverage.”

      . In this regard it should be noted that the insurer not only refused to pay part of the collision claim (which it later paid in full after being forced to a quick trial in small claims court), but also refused to pay any reasonable amount undoubtedly due to its own insured under the uninsured motorist coverage. Such arbitrary and unreasonable failure has been held to give rise to statutory penalties and attorney’s fees. Soniat v. State Farm Mut. Auto. Ins. Co., 340 So.2d 1097 (La.App. 4th Cir. 1976).

      . In the California Co. case litigation in the first concursus proceeding determined the title to a certain portion of Grand Bay. In the second concursus proceeding, involving claims to ownership of funds from different wells on the same property, the court refused to relitigate title to the property and held that the title issue (resolved in the first suit) was determinative of the fund ownership at issue in the second suit.

      . Furthermore, Article 425 only prohibits dividing an obligation “for the purpose of bringing separate actions”. Sutterfield’s apparent purpose was to enforce the collision obligation quickly in a small claims court in order to place his automobile back in service, without having to wait for trial of the action to enforce the uninsured motorist obligation, the amount of which was beyond the jurisdiction of that court. Thus, it can be argued that Sutterfield did not bring two actions solely for the unjustified “purpose of bringing separate actions”.


author: REDMANN, Judge.

text:
    COLE, INC., et al. v. The COUNCIL OF the CITY OF NEW ORLEANS et al.
    No. 7979.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Lawrence L. Lagarde, Jr., New Orleans, for plaintiffs-appellants.
    Stephen B. Murray, Asst. City Atty., for defendants-appellees.
    Before SAMUEL, REDMANN and LEM-MON, JJ.
   REDMANN, Judge.

This appeal from a judgment of a district court on appeal from a city council’s revocation of beer and liquor licenses under La. R.S. 33:4785 is dismissed as untimely because not “[wjithin ten calendar days from the signing of the judgment by the district court . . .,” R.S. 33:4788.

APPEAL DISMISSED.

      . The judgment was signed on June 9, 1975. Appellant moved on June 12 for a new trial which was denied June 20, and moved for appeal on June 27 and posted bond September 2.