author: SAMUEL, Judge.

text:
    Edith Demoulin SUTTON v. Aaron A. SUTTON, Jr.
    No. 7116.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused May 11, 1976.

      Dufour, Levy, Marx, Lucas & Osborne, Dwight W. Norton, New Orleans, for plaintiff-appellant.
    George Giacobbe, Frank P. Letellier, II, New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and GULOTTA, JJ.
   SAMUEL, Judge.

This is a suit by a wife against her husband for a separation from bed and board on the grounds of cruel treatment and intentional nonsupport. The defendant answered in the form of a general denial and reconvened for a separation in his favor on the grounds of abandonment and cruel treatment.

After trial on the merits, judgment was rendered dismissing both plaintiff’s suit and defendant’s reconventional demand upon a finding by the trial court that both parties were guilty of comparable fault. Plaintiff has appealed seeking reversal of that part of the judgment denying her a judicial separation. As defendant has neither appealed nor answered the appeal taken by plaintiff, that is the only issue before this court.

The record consists only of testimony given by the plaintiff, her daughter and the defendant, together with various exhib-its offered in evidence. Plaintiff’s principal complaint is intentional nonsupport. Her net pay was approximately $300 per month while her husband’s was approximately $1,100 per month.

Plaintiff testified: She was in poor health and wished to resign her position but her husband refused to allow her to do so, insisting she must support herself; they had arguments every month when he got paid because he would not give her any money for the house; he would give her only $40 to $50 a month for groceries, occasionally more would be needed and she would have to pay $15 or $20 for additional groceries out of her own money (the money she earned); she also had to pay her own doctor bills and bills from the department store's. On cross examination Mrs. Sutton did admit that her husband paid the utility bills and the mortgage notes in addition to the $40 to $50 per month she said he gave her for groceries.

Her testimony relative to other incidents of cruel treatment was that in July, 1974 the defendant came in about 1 a. m. and ordered her to get out of the house. She fought with him and got a gun telling him to leave her alone. In October, 1974 Mr. Sutton locked her out of the house and she had to call the police to get in. In 1972 she moved out of their mutual bedroom because she had found a woman’s sunglasses, vanity case, cigarette butt and a pair of panties in their bedroom, articles which did not belong to her. While she and her husband did not share the same bedroom since 1972, they did continue to have relations periodically until June, 1974 when Mrs. Sutton moved out of the house. They had separated and reconciled on two or ■three different occasions prior to the institution of this suit.

Plaintiff’s daughter testified only that she knew her mother was sick and wanted to quit her job, and that on occasion she had seen her mother cash her own pay check to pay for groceries.

Defendant testified: He paid the house notes, the second mortgage notes, the lights, the gas, money to get the lawn mowed, newspapers, and all the other bills including hospitalization premiums for his wife and the upkeep, renovation and repairs of rental property owned by the parties. She is the beneficiary of his insurance policies. The only bills his wife paid were for her personal charges at various department stores. He denied ever refusing to support his wife and stated he had offered to agree to permit her to stop working as soon as some rental property was repaired and income-producing. Over the years they had regular domestic problems because of the way Mrs. Sutton handled the money. On one or two occasions she packed up all of his clothing and placed them on the porch. His bills were extremely high because of the necessity of making repairs and renovations to their rental apartments. The grocery bills were high because her son was living with them for a time and her daughter came over almost every Saturday with her children. Mr. Sutton felt that the daughter should provide for the food for her own family. He found it necessary to make a loan from the credit union because of the expense of the apartment repairs.

The record does not reflect that Mr. Sutton was guilty of nonsupport. Plaintiff’s attitude on this subject can best be shown by reference to a portion of her testimony regarding an income tax refund received by both. She testified:

“In June, after we got our income tax check, we divided it. Usually we always divide the income tax check in half, so he gave me my half and he kept his half and he told me he had to pay some bills with his half and I should make groceries in the house. Now, if he had been sick or out of a job I would gladly do that.”

Relative to the first incident of alleged cruel treatment when, according to plaintiff’s testimony, defendant ordered her out of the house and she refused, got a gun and told him to leave her alone, from a reading of the entire record, it appears to us that this was only one of many arguments between the litigants in which plaintiff was quite capable of protecting herself and doing much more. And we note there were other occasions when she did the same thing to her husband by packing up all of his clothing and placing them on the porch.

Relative to the second alleged incident, it appears Mrs. Sutton had a key to their home on the evening she claims to have been locked out, but she could not use it because the screen door was latched. She had not informed her husband of her whereabouts and, as she was not home when he arrived and frequently stayed with her daughter or visited in Plaque-mine, he did not know whether or not she would be home that evening. Consequently, although the Plaquemine visits may have been subsequent to this incident, it does not appear she was deliberately locked out of the house and the remark made in the preceding paragraph as regarding the fact that she was guilty of the same complained of action, is also applicable here.

Concerning the 1972 incident, when Mrs. Sutton found articles not belonging to her in the bedroom, it is significant that, although she moved out of their mutual bedroom, she did continue to periodically engage in sexual relations with her husband. As such conduct indicates forgiveness and condonation, it cannot form the basis for an award of the judgment she seeks

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

Affirmed.

      . See Keir v. Digby, 166 La. 92, 116 So. 711.

      . Vatter v. Vatter, 131 La. 1073, 60 So. 689; Brown v. Brown, La.App., 260 So.2d 66; Wood v. Wood, La.App., 227 So.2d 656; Robertson w. Robertson, La.App., 215 So.2d 521.


source: Caselaw Access Project

author: BOLIN, Judge.

license: Public Domain

text:
    Colvert Eugene PEOPLES, Plaintiff-Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant-Appellee.
    No. 12811.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Leslie B. Bagley, Mansfield, for plaintiff-appellant.
    Mayer, Smith & Roberts by William L. Lowe, Shreveport, for defendant-appellee.
    Before BOLIN, MARVIN and SMITH, JJ-
   BOLIN, Judge.

Colvert Eugene Peoples brings this direct action against Hartford Accident and Indemnity Company for property damage to Peoples’ vehicle resulting from an automobile collision between Peoples’ car and a vehicle insured by Hartford driven by Matilda Martin. Hartford answered denying the accident was caused by the negligence of its insured, alternatively pleading contributory negligence against plaintiff. A reconventional demand was also filed by Hartford and the named insured seeking recovery for the damages caused to the insured’s vehicle. The amount of damages to both vehicles was stipulated.

For written reasons the trial judge found the accident was caused solely by plaintiff’s negligence. Plaintiff appeals from the judgment rejecting his demands and awarding Hartford and its insured their recon-ventional demands. We reverse and render judgment in favor of plaintiff.

The versions of the accident as given by the drivers of the two vehicles involved in the accident are irreconcilable. The primary question on appeal is whether there is sufficient evidence to affirm the judgment of the lower court.

The accident occurred on a rainy night on a four-lane black-topped road in Mansfield, Louisiana. Peoples alleged and testified he was traveling south driving his Toyota automobile at a lawful rate of speed in the outside or extreme right lane when a Chevrolet automobile owned by defendant’s insured, being operated by Matilda Martin, a 16-year-old girl, with the insured’s consent, suddenly turned right from the inside lane in front of Peoples’ Toyota; that Peoples immediately applied his brakes, remained in his own lane of travel and struck the Chevrolet on its right rear side.

Plaintiff’s version of the accident was corroborated by the testimony and police report of a city police officer who investigated the accident. This officer testified he arrived on the scene shortly after the accident, observed the location of the vehicles and talked to both drivers. He said Peoples’ Toyota had apparently not been moved since the impact; that it was located entirely in the extreme outside or right lane; that the damage to this vehicle was principally to the left portion of the bumper; that the damage to the insured’s Chevrolet was to the right rear side; that the impact had caused the Chevrolet to spin around and come to rest headed north. Without objection the police report was introduced into evidence and the officer was permitted to give opinion testimony and to tell what various witnesses told him at the scene of the accident.

Plaintiff’s account of the accident was also corroborated to some extent by two deputy sheriffs who arrived while the city police officer was making his investigation. These two deputies testified the damage to the two automobiles was the same as testified to by the city police officer.

The driver of the Chevrolet testified she was proceeding south in the outside lane and when she attempted a right turn to enter the parking area of a nearby restaurant her automobile was struck from the rear by Peoples’ Toyota. Her version, which was corroborated by the other two occupants of the Chevrolet, was adopted by the trial judge.

In his written reasons the trial judge found the defendant driver had engaged the right blinker light on her automobile one block before making her right turn into the restaurant; that she had almost completed her turn when the right rear of her vehicle was struck by the left front of plaintiff’s car. He further found the plaintiff’s vehicle was traveling at an excessive rate of speed and literally “ran over” the Chevrolet as its driver attempted to execute a righthand turn.

We are hesitant to overrule the judgment of a trial court where the decision is predicated largely upon the credibility of witnesses; however, we do not find this case presents solely a credibility question. From our careful analysis of the testimony, the police report, the photograph of the Chevrolet and the estimate reflecting the location and extent of the damage to plaintiff’s car, we are unable to find any evidence to support the Chevrolet driver’s version of how the accident happened.

The evidence establishes that Peoples’ Toyota was at all times in the outside lane prior to the accident and at the time of the impact. If the Chevrolet driver was traveling in the outside lane when she began her right turn, we can conceive of no way plaintiff’s Toyota could have struck the right rear of the Chevrolet with the left front bumper of the Toyota since plaintiff’s vehicle remained in the outside lane.

Considering all of the evidence in the light most favorable to the defendant, we find the overwhelming weight of the evidence supports the plaintiff’s version that defendant driver turned right from the inside lane directly in front of plaintiff’s vehicle, causing the left front bumper of plaintiff’s vehicle to strike the right rear side of the defendant vehicle. Based upon this finding, we conclude the accident was caused entirely by the negligence of the defendant driver.

The judgment of the lower court is reversed and it is now ordered, adjudged and decreed there be judgment in favor of Colvert Eugene Peoples and against Hartford Accident and' Indemnity Company, in the sum of $602.52, together with legal interest thereon from judicial demand until paid, and all costs.


text:
    STATE of Louisiana In the Interest of Clifton Antoine JOSHUA.
    No. 7633.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1976.
    Writs Refused Feb. 6 and March 12, 1976.
   PEREMPTORY WRIT

Relator’s application for writs is directed to the refusal of the Juvenile Court for the Parish of Orleans to grant a preliminary examination (probable cause hearing).

Relator was arrested on January 11, 1976 and subsequently on January 14, 1976 a petition was filed alleging him to be a delinquent in that he had violated LSA-R.S. 14:64 relative to robbery and LSA-R.S. 14:27(64) relative to attempted armed robbery. On January 15, 1976 a detention hearing was held at which time relator presented to the court a motion for a preliminary examination (probable cause hearing) which was denied by the Judge conducting the detention hearing. The relator was detained (LSA-R.S. 13:1578.1) in the New Orleans Youth Study Center in lieu of bond. The motion for a preliminary examination was presented on January 20, 1976, to the Judge of the section of the Court to which relator’s case is alloted and the motion was again denied.

Relator has been proceeded against via a petition (a sworn affidavit of the charges; See LSA-R.S. 13:1574). Pugh v. Rainwater, 332 F.Supp. 1107, 1114, (S.D.Fla.1971), aff’d 483 F.2d 778 (5th Cir. 1973), aff’d sub nom., Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) requires that an accused adult be accorded a preliminary hearing to challenge a pre-trial incarceration under the standard of probable cause when such pre-trial incarceration is pursuant to anything other than a grand jury indictment. See LSA-C.Cr.P. Art. 292. Juvenile relator is entitled to the same constitutional safeguards as an adult. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed. 2d 84 (1966); Louisiana Constitution of 1974, Art. 1, §§ 2 and 3; In re State In Interest of McGinnis, 244 So.2d 336 (La.App.1971); In re Williams, 221 So.2d 58 (La.App.1969).

Accordingly, IT IS ORDERED that the Honorable Edward G. Gillen, Judge, Orleans Parish Juvenile Court, or any other Judge of said Court is directed to grant relator, Clifton Antoine Joshua, a preliminary examination (probable cause hearing) not later than twenty-four (24) hours from the date and time of this order.

New Orleans, Louisiana this 5th day of February 1976 at 3:50 o’clock P.M.

(s) ERNEST N. MORIAL, JUDGE

(s) WILLIAM V. REDMANN, JUDGE

(s) PATRICK M. SCHOTT, JUDGE


author: SCHOTT, Judge.

text:
    Russell Mark LeBOEUF v. TIMES PICAYUNE PUBLISHING CORPORATION and the Parish of Jefferson, through its Sheriff Alwynn J. Cronvich, et al.
    No. 7259.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Daniel E. Becnel, Jr., Reserve, for plaintiff-appellant.

      Phelps, Dunbar, Marks, Claverie & Sims, New Orleans (Rutledge C. Clement, Jr., and John G. Weinmann), New Orleans, for defendant-appellee, The Times-Picayune Pub. Corp.
    Cronvich & Wambsgans, Metairie (A. W. Wambsgans) Metairie and Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge (Emile C. Rolfs, III), Baton Rouge, for defendant-appellee, Sheriff Al-wynn J. Cronvich.
    Before GULOTTA, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a summary judgment in favor of defendant, Times Picayune Publishing Corporation, denying a claim for damages for alleged defamation or libel, and a summary judgment in favor of the Jefferson Parish Sheriff denying a claim that the release of incorrect information by the Sheriff constituted actionable negligence.

On May 9, 1974, the Times Picayune newspaper published an article reporting that on May 8, 1974, in Kenner, Louisiana, one Russell Mark LeBoeuf was arrested and charged with attempted murder, armed robbery, simple escape and resisting arrest.

The source of the newspaper report was the Kenner Police Department Public Information Officer whose information emanated from his department’s “Incident Report.” The information later proved to be false. The individual who was actually arrested had presented identification to the police which had evidently been stolen from plaintiff’s residence sometime prior to the May 8 arrest. The Times Picayune became aware of the error on June 6, 1974, and published a clarification on June 11, 1974.

For a publication to be actionable as libel it must be shown that the publisher had knowledge of the falsity or demonstrated reckless disregard of the truth. At a minimum a publisher must have some knowledge which would place him on his guard, making him aware that further research was necessary to insure the veracity of his report. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, 1974.

Applying these principles to the instant case there is no factual basis for the newspaper’s liability. The uncontroverted affidavits show that this report was given to the paper pursuant to an established policy. There was no indication of irregularity in the police procedures, such reports in the past had been accurate and this particular one was routine. The reporter had never known plaintiff previously and treated this as an ordinary news item. There is nothing to suggest that the reporter or the paper was placed on guard or to suggest a finding of “fault” in the publication of the May 9, 1974, article.

Furthermore, the facts of the instant case cannot be distinguished from those in Wilson v. Capital City Press, 315 So.2d 393 (La.App. 3rd Cir. 1975), writ refused, 320 So.2d 203 (La.1975). There defendant published an article reporting plaintiff’s arrest based on reports provided by the state police public relations director and it later became known that plaintiff was not among those arrested, so that the original information proved to be erroneous. The court held that defendant publisher could reasonably rely on the information furnished to it where it “had [no] reason to doubt the correctness and authenticity of the information received. The source was reliable and in a proper position of authority and knowledge such that no fault can be attributed to . [defendant] for reliance on the information received.”

We have concluded that the motion for summary judgment in favor of the Times Picayune was properly granted.

Likewise, plaintiff’s claim against the Sheriff was properly dismissed. The Sheriff’s only participation was for his deputy to book and incarcerate the subject after his arrest by Kenner policemen. The subject said he was Russell LeBoeuf and his identification papers confirmed this.

The deputy could reasonably rely on the information he obtained. The error about which plaintiff complains was the result of unusual circumstances, against which the deputy sheriff could not, in the absence of suspicious circumstances, be expected to be on guard.

All of the foregoing facts upon which the summary judgments were based were contained in affidavits filed by defendants. Plaintiff filed no opposing affidavits despite ample opportunity afforded him to do so. Since no genuine issues of material fact were raised the summary judgments were properly granted. LSA-C.C.P. Art. 966.

Accordingly, the judgments appealed from are affirmed at plaintiff’s cost.

Affirmed.


author: GULOTTA, Judge.

text:
    Gabriel NASSAR v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and Lloyd Price, Jr.
    No. 7248.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Lambert J. Hassinger, New Orleans, for plaintiff-appellee.
    Hammett, Leake, Hammett, Hayne & Hulse, Robert E. Leake, Jr., New Orleans, for Government Employees Ins. Co.
    Before GULOTTA, SCHOTT and BEER, JJ.
   GULOTTA, Judge.

Defendant seeks reduction of a $10,311.-98 award. No dispute exists concerning the special damages portion of the award which included $1,000.00 for loss of earnings, $891.55 for medical bills and $311.98 for property damage. Defendant does complain about the general damage award of approximately $8,100.00. Plaintiff does not seek an increase.

The basis of defendant’s complaint is that the injury sustained by plaintiff was minimal and that the trial judge abused his discretion in awarding the $10,000.00 policy limit. According to defendant, a laceration over the right eyebrow requiring sutures and resulting in a nondisfiguring, scar, a concussion and chest muscle contusion requiring a 24 to 48 hour observation period in a hospital immediately following the accident and a Bufferin tablet prescribed at the hospital will not support an $8,100.00 general damage award. We disagree with defendant’s depiction of plaintiff’s injuries. Accordingly, we affirm.

The record supports plaintiff’s version of his injuries which are a cerebral concussion, laceration of the right eye resulting in a permanent nondisfiguring scar, contusion of the chest, cervical strain, headaches, loss of accommodation of both eyes, swelling and inflammation of the eyelids and secretion in the eye (permanent in nature) when plaintiff engages in physical activity.

Dr. Joseph P. Rumage, an ophthalmologist, saw plaintiff on approximately eight occasions between and including November 2, 1973 and April 4, 1975. According to Dr. Rumage, the condition of the eye resulted from the trauma sustained in the accident and was causally connected to the accident. It was Dr. Rumage’s opinion that the swelling, irritation and watering of the eye are permanent in nature. No testimony was offered by defendant to dispute the medical opinion of Dr. Rumage.

Dr. Albert S. Cerniglia saw plaintiff on October 8, 1973, the date of the accident, in the Mercy Hospital emergency room.. According to Dr. Cerniglia’s report, the laceration above the right eye was sutured. Plaintiff complained of dizziness, headaches and pain in the upper left chest region. Plaintiff was seen by Dr. Cerniglia on five occasions between and including October 8, 1973 and November 26, 1973. According to Dr. Cerniglia, during this period of time, plaintiff complained of dizziness, headaches and pain in the chest. * A neurological examination by Dr. Kenneth E. Vogel was negative. On October 25, 1973, plaintiff was seen in consultation by Dr. John Signorelli because of complaints of pain in the upper chest region. Although soreness was present on palpation, no internal organ difficulty was revealed.

Although defendant contends the trial court award was influenced by the limits of liability policy provisions of the insurer, we cannot say that an $8,100.00 general damage award for residual periodic swelling and irritation of the eyelid, watering of the eye and loss of accommodation, all of which are permanent in nature, together with the other injuries sustained, constitutes an abuse of the trial court’s discretion. See LSA-C.C. art. 1934(3).

Accordingly, the judgment is affirmed.

Affirmed.

      . According to Dr. Joseph Rumage, accommodation is defined as the ability to focus the eyes at a close distance requiring the use of reading glasses. Prior to the accident, plaintiff did not wear glasses. However, subsequent to the accident, glasses were prescribed for plaintiff. Dr. Rumage indicated that it was probable that the loss of accommodation was related to the accident.


text:
    Harold DONOVAN v. Leon NETTLES et al., Defendants-Appellants, Victor Lota et al., Appellees.
    No. 7266.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.

      Birdsall, Alvarez & Rodriguez, Lowell W. Davis, Jr., New Orleans, for plaintiff-appellee.
    Bienvenu, Foster, Ryan & O’Bannon, H. F. Foster, III, New Orleans, for defendants-appellants (Leon Nettles and O. P. Gaudet, Jr.).
    Drury, Lozes & Curry, James H. Drury and Bradford H. Walker, New Orleans, for defendants-appellants (Morris G. West and Leonard Ramon).
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Edward P. Lobman and Jack M. Alltmont, New Orleans, for State Farm Fire & Cas. Co. (third-party defendant-appellee) .
    George J. Richaud, Metairie, for Liberty Mut. Fire Ins. Co. (third-party defendant-appellee).
    Schumacher, McGlinchey, Stafford, Mintz & Hoffman, Donald R. Mintz and William F. Bologna, New Orleans, for Old Reliable Fire Ins. Co. (third-party defendant-appellee) .
    Before GULOTTA, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff brought suit against a number of his co-employees, including the four appellants alleging that he was injured while he was on the job with his employer under the direct supervision of the defendants, including appellants. He charged them with negligence in the performance of •their duties as foremen or supervisors in charge of his work. The four appellants, Nettles, Gaudet, West and Ramon, brought third-party demands against appellees, which are insurers who had issued to each of appellants a homeowners policy which included liability insurance. In their third-party demand appellants prayed for judgments for the costs and attorneys’ fees incurred by them in defending against the main demand as well as indemnification. Appellees denied coverage, and from summary judgments rendered in their favor dismissing the third-party demands appellants have taken this appeal.

Each policy of insurance contains the following exclusion from liability coverage:

“d. To bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits
Each policy defines “business” to mean:
“A trade, profession or occupation, including farming, and the use of any premises or portion of residence premises for any such purposes; ”

The position of each of the appellants is identical except for Gaudet who, at the time of the accident, was on vacation, and who argues therefore that the allegations of the original petition to the effect that he was negligent in the performance of his duties are patently false.

Concerning all of appellees’ obligations to defend their insureds, the following is applicable from American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253, 259 (1970):

“Generally the insurer’s obligation to defend suits against the insured is broader than its liability for damage claims. And the insurer’s duty to defend suits brought against its insured is determined by the allegations of the insured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage.”

The questions are therefore whether there is coverage under the policies and whether the petition unambiguously excludes that coverage so as to relieve appel-lees of their obligations to defend under their policies.

Appellants apparently concede that if the exclusion clause quoted above stood alone or the definition of “business” was simply “a trade, business or occupation” there would be no coverage pursuant to such decisions as Pitre v. Pennsylvania Millers Mutual Insurance Co., 236 So.2d 920 (La. App. 3rd Cir. 1970) and Berry v. Aetna Casualty & Surety Company, 221 So.2d 272 (La.App. 2nd Cir. 1969. But appellants would distinguish the instant case from those cited because of the manner in which “business” is defined in appellees’ policies. They contend that the use of the conjunctive “and” between the word “farming” and the phrase “the use of any premises for any such purposes” restricts “business” to those situations where the insured’s occupation is performed on his premises. They reason that since the allegations of the petition are to the effect that the accident occurred on the job and not on any of the insured’s premises the business pursuits exclusion does not apply. Furthermore, they say that if their interpretation of the definition of business is not correct, the definition is at least ambiguous and must therefore be construed against the insurers.

Taking the intended meaning of the definition first, it seems clear that the word “and” in the definition was intended to have the meaning of the disjunctive “or.” These homeowners policies combine such coverages as fire insurance .which are directly related to the homes of the insureds with other coverages against risks arising away from the homes, but their primary function is to provide a package of coverage for the insured in his homeowner capacity. Under the construction advocated by appellants the result would be that the homeowners policies would protect the insured engaged in business pursuits away from home but would exclude coverage for business pursuits in their homes. This result would be incongruous.

Furthermore, if appellants’ interpretation is correct the first reference to “trade, profession or occupation” would be sur-plusage because the second part of the definition standing alone excludes coverage for the use of the premises for the trade, profession or occupation of the insured. Effect must be given to both parts of the definition and the first part of the definition stands alone to exclude coverage in this case.

Conceding, however, that the definition is ambiguous from a dialectic point of view, we are not inclined to invoke in this situation the principle that ambiguities in an insurance policy are to be construed against the insurer. The principle permits an exception where the interpretation would be unreasonable or would lead to absurd results. Reichert v. Continental Insurance Company, 290 So.2d 730, 733 (La. App. 1st Cir. 1974). Based upon what we have already said this would be the result were we to accept appellants’ interpretation of the policy language under consideration here. In Maggio v. Manchester Ins. Co., 292 So.2d 255 (La.App. 4th Cir. 1974) it was said that “a reasonable interpretation consistent with the obvious meaning and intent of the policy must be made.” We do not agree with appellants that their interpretation can stand this test.

As to the obligation to defend, we find no ambiguity in the petition, but on the contrary find that the petition “unambiguously excludes coverage” so as to exempt appellees from the obligation to defend under the holding of American Home Assurance Company v. Czarniecki, supra.

We find no exception in the case of Gaudet who contends that he was on vacation at the time of the alleged accident on the job. Gaudet argues that the allegations are obviously false against him and points to the policy of his insurer, which obligates the company to defend any suit “even if any of the allegations of the suit are groundless, false or fraudulent.” This problem normally arises where allegations are made which would include coverage, but the insurance company attempts to evade its obligation to defend contending that the allegations are false. The courts have uniformly held that the obligation of the company to defend stems from the allegations of the petition, whether true or false. The other side of the coin must certainly apply. In this case, the allegations of the petition may be false but they exclude coverage, and under those circumstances the company has no obligation to defend its insured.

Accordingly, the judgment appealed from is affirmed at appellants’ cost.

Affirmed.


author: CUTRER, Judge. MILLER, Judge MILLER, Judge (voting to grant a rehearing).

text:
    Mrs. Emmett R. FLAHERTY, Plaintiff-Appellee, v. GULFCO LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 5371.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 1976.
    Dissenting Opinion Feb. 19, 1976.
    Rehearing Denied March 11, 1976.
    Writ Refused April 13, 1976.

      Bennett & Wilson by Ben C. Bennett, Jr., Abbeville, for defendant-appellant.
    Riddle & Bennett by Charles A. Riddle, Jr. and Darrel Ryland, Marksville, for plaintiff-appellee.
    Cravel, Roy & Burnes, by Chries J. Roy and. Robert L. Royer, Alexandria, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

Plaintiff, Mrs. Emmett R. Flaherty, brought this action to recover all benefits due on a credit life insurance policy issued for a term of one year in the amount of $10,000.00. The action was brought against Gulfco Life Insurance Company (hereinafter sometimes referred to as “Gulfco”). A third party demand was made by Gulfco against the Mansura State Bank and/or Nathan Ducote. After trial on the merits judgment was rendered in favor of plaintiff against Gulfco. The third party demand was dismissed. Gulfco has appealed from that judgment, and plaintiff has answered the appeal, arguing that the trial court erred in denying her penalties under LSA-R.S. 22:656 as prayed for in her petition. We affirm the judgment of the district court.

The basis of this suit is a policy of credit life insurance written by Gulfco insuring the life of plaintiff’s husband, Emmett R. Flaherty, made payable to Mansura State Bank, as first beneficiary, in the amount of $10,000.00. The policy sued on was issued October 3, 1973, with Nathan Ducote, an officer of the Mansura State Bank, acting as agent for Gulfco. The policy was issued in connection with a loan by the Mansura State Bank to plaintiff and her husband in the amount of $9,923.51. The loan was secured by a mortgage on immovable property owned by the Flahertys. A premium of $200.00 was collected from the Flahertys, and a certificate of insurance was filled out by Ducote and a copy of the certificate transmitted to Gulfco, together with Gulfco’s portion of the premium. On February 12, 1974, Emmett Flaherty died. Proof of death and a request for payment under the policy were sent to Gulfco. Gulfco denied coverage, and this suit followed.

Plaintiff filed suit on August 13, 1974, to recover the benefits due under the credit life policy, together with penalties under LSA-R.S. 22:656. In response to this suit, Gulfco, after the resolution of several exceptions, answered the suit denying coverage on the basis of a clause in the policy requiring the insured to be in sound health at the time the policy was issued, and alternatively naming as third party defendants Mansura State Bank and/or Nathan Ducote as agents acting outside their authority. Trial on the merits was had on May 30, 1975, and on the basis of written reasons rendered, a formal judgment was signed on July 11, 1975, in favor of plaintiff- and third party defendants against Gulfco.

Gulfco alleges as error on the part of the trial court the failure to apply the “sound health” provision of the policy sued on. The policy states in pertinent part as follows:

“This policy shall not insure against loss of life unless assured is in sound health upon the date on which this policy is issued.
“Assured shall be presumed not to be in sound health on the date hereof should the assured have been treated for any disease, sickness or injury within six months prior to the date of this policy, which disease, sickness or injury shall be a substantial contributing cause of Assured’s death while this policy is in force.”

Gulfco contends that the medical evidence submitted at the trial clearly indicates that Mr. Flaherty was in extremely poor health at the time the policy was issued.

The record in this case reveals that several years prior to the dates in question Mr. Flaherty underwent surgery to remove a portion of his jawbone and upper palate. This operation was required due to the existence of a cancerous tumor. He subsequently had to be fed through tubes inserted through his nose. In the ensuing years he suffered from weight loss. The record also indicates that subsequent to this operation, which was performed in 1969, Mr. Flaherty was periodically examined to be sure the cancer had been arrested. These subsequent examinations revealed no recurrence of the cancer. Mr. and Mrs. Flaherty were told that the cancer had been arrested. Gulfco argues that the evidence indicates that Mr. Flaherty was not in sound health at the time the policy was issued, and that as a result the policy never took effect. Plaintiff argues that Gulfco has failed to prove that at the time the policy was issued Mr. Flaherty was not in sound health. Plaintiff contends that following the surgery all tests indicated that Mr. Flaherty’s cancer had been arrested.

The issue before this court is not whether the insured was in sound health at the time the policy was issued but rather whether the insurer can escape liability on the basis of a sound health clause in its policy where its agent was authorized to issue insurance to debtors who were not required to submit to a medical examination nor even asked about the health of the prospective insured. The evidence in the record indicates that Gulfco allowed Nathan Ducote to issue credit life insurance to Mr. Emmett R. Flaherty without any inquiry into the health of Flaherty, past or present. No medical examination was required of Mr. Flaherty prior to the issuance of the policy. At the time the policy was issued, Mrs. Flaherty made application on her husband’s behalf because he was in the hospital and unable to go to the bank himself. This information was communicated to Ducote. Mrs. Flaherty had to take the papers prepared in connection with the loan to the hospital for her husband to sign them. This information was also communicated to Ducote. Ducote testified that he did not know Mr. Flaherty personally and had no knowledge of his present or prior health. He further stated that he asked no questions with regard to the health of the prospective insured. He stated that he was never instructed by either Gulfco or the bank to ask any questions relating to the health of the prospective insured.

It is also important to note that Mrs. Flaherty never received a copy of the insurance certificate which was filled out on the date of issuance. She did not even have to sign the form, and her testimony is that she never saw the form. The certificate, which contained triplicate copies, was to be filled out by Ducote with the name of the insured and his age, the date of issuance, the term of the policy, the premium due, the name of the first and second beneficiaries and the amount of coverage. The form was filled out by Ducote and signed by him. The signature of Robert Eddy, President of Gulfco, also appears on the certificate. When the certificate was filled out by Ducote in connection with the loan taken out by plaintiff and her husband, it was intended that plaintiff receive a copy for her records. In fact, the copy intended for plaintiff was sent to Gulfco. Plaintiff received no copy of the certificate.

Under the circumstances of this case, we find Gulfco liable to plaintiff for the face value of the policy. There was no allegation of fraud or misrepresentation on the part of plaintiff or her husband. Nor does the record support a finding of fraud or misrepresentation. Plaintiff applied for a loan from Mansura State Bank for herself and her husband, and in connection with the loan she applied for credit life insurance. No medical examination was required and no inquiry was made into the health of the prospective insured. The Flahertys paid the premium due and were led to believe that they had insurance coverage. Under the circumstances Gulfco cannot rely on its “sound health” clause to deny coverage to plaintiff.

Gulfco also contends that since the policy was written in excess of the limits set forth on the certificate no recovery can be had. Mr. Flaherty was 68 years of age at the time the policy was issued. The certificate contains limitations on the reverse side of one of the three copies, which limit insurance coverage for a person 68 years of age to $1,500.00 for a term of not more than six months. The certificate written herein was in the amount of $10,000.00 for a term of one year. These amounts, as well as Mr. Flaherty’s age, appear on the face of the certificate. Copies of the certificate were transmitted to Gulfco. Gulf-co thereafter accepted the premium paid by the Flahertys and remained silent as to the excessiveness of the policy terms until a claim was made more than four months later. When the claim was made on the policy Gulfco refused to pay the claim but retained the premium. We find a ratification by Gulfco of the acts of its agent in connection with the writing of the insurance policy in favor of Mr. Flaherty.

This court in Ledoux v. Old Republic Life Insurance Company, 233 So.2d 731 (La.App. 3rd Cir. 1970) set forth the following:

“The general theory of ratification of unauthorized acts of an agent is that the principal, with full knowledge of the facts, consents to the unauthorized actions and adopts the contract as if it had been previously authorized.”

In the present case Ducote issued the insurance certificate in favor of Mr. Flaherty for excessive amounts, both as to coverage and term. Gulfco received copies of the certificate and filed it. On its face the certificate indicated that it had been written for an excessive amount and term. However, instead of correcting the error that had been made, Gulfco merely filed the certificates, received the premium payment and made no attempt to correct the errors until a claim was made under the policy. This constituted a ratification of the acts of Ducote by Gulfco, and Gulfco can no longer assert these acts as a basis for denying coverage.

Gulfco alleges error on the part of the trial court in denying its third party demand against the Mansura State Bank and/or Nathan Ducote for breach of the agency contract by issuing a policy in excess of the limits printed on the certificate and by negligently issuing a policy without first determining whether the prospective insured was in good health. We find no merit to these arguments by Gulfco.

Ducote testified that he was never instructed by Gulfco to discuss any exclusions with persons applying for insurance. In addition, Mr. Robert Eddy, President of Gulfco, indicated that no instructions, either verbal or written, were given to agents in connection with the insurance materials sent to the agents. Mr. Eddy was asked if the agent was informed as to how he should determine the age of the prospective insured, as to how to determine the limitations on the policies and as to who was to receive what copies of the certificates. His answer was that he did not feel, it necessary that these things be explained to the agents. There is no evidence in the record to indicate that anyone instructed Ducote as to how a policy should be prepared and the limitations and exclusions in connection with issuance of the policies. The testimony of Mr. Eddy is corroborated by this significant testimony on the part of Ducote: When asked who instructed him how to write policies for Gulfco, he stated, “Well, I learned by the hard way. I had to learn myself. Nobody showed me. I learned what I knew as I’d go along.”

Our reading of the record in this case indicates no error on the part of the trial judge in denying Gulfco’s third party demand. Gulfco turned over to Ducote certificates to be filled out in connection with the issuance of insurance for Gulfco. No instruction was given as to how to prepare the certificates or what limitations or exclusions were provided. No medical examinations were required and no instruction was given to inquire into the health of the prospective insured. Under these facts we find that no basis for the claim by Gulfco against Ducote or the Mansura State Bank.

Plaintiff has answered the appeal arguing that she is entitled to penalties under LSA-R.S. 22:656, which provides as follows:

“All death claims arising under policies of insurance issued or delivered within this state shall be settled by the insurer within sixty days from the date of receipt of due proof of death and should the insurer fail to do so without just cause, then the amount due shall bear interest at the rate of six per cent per annum from date of receipt of due proof of death by the insurer until paid.”

The evidence presented in this case supports the trial judge’s refusal to award plaintiff penalties under the cited statute, and we will not disturb his ruling in this connection.

For the reasons assigned, the judgment of the trial court is affirmed at defendant-appellant’s costs.

Affirmed.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting).

With serious reservations, I could affirm the trial court’s award of the $10,000 policy limits to Mrs. Flaherty. The denial of penalties is entirely correct. I respectfully dissent from the dismissal of Gulfco’s claim against Mansura State Bank and/or Nathan Ducote. In my view, Gulfco and the Bank were both negligent and are jointly liable.

Mr. Ducote is executive vice-president and cashier of Mansura State Bank and had worked for the bank in differing ca- " pacities for some twelve years. At Tr. 249 he testified these credit life insurance policies are written as much for the benefit of the bank as for the benefit of the insured and his estate.

During the month of October 1973 when the Flaherty $10,000 policy was written, the bank collected premiums on Gulfco policies totaling $702.84. These premiums were deposited to the account of Mrs. D. P. Roy, president of Mansura State Bank. In accordance with the bank’s usual procedure, in November of 1973 the bank forwarded to Gulfco all policies written in 'October together with Gulfco’s 40% share of the premiums — $281.14 (of the $702.84 collected) for the October business. The bank’s 60% share (which came to $421.70.) remained in the personal account of Mansura State Bank’s president Mrs. Roy. Her husband, Mr. Sookie Roy, is owner of Mansura State Bank and president of another Avoyelles Parish bank.

Gulfco’s arrangement for Mansura State Bank to handle the credit life program was confected with its owner Mr. Roy. As far as Ducote could remember (Tr. 208), Roy in turn made Ducote “the agent” or individual to handle the Gulfco insurance matters. While it is true Gulfco was negligent in failing to train or instruct Ducote, the bank’s president (husband of the bank’s owner) was receiving 60% of all premiums paid for Gulfco’s policies. The bank cannot permit coverage to be written where the insured cannot walk, cannot eat, and cannot appear at the bank. The bank’s receipt of 60% of all premiums requires the exercise of some interest in the problems related to issuing credit life insurance policies.

Although Roy did not testify it appears that he understood the conditions for writing policies. His failure to communicate these instructions and restrictions is gross negligence which makes the bank jointly liable for the benefits due Mrs. Flaherty.

It is apparently conceded this policy should have never been written — certainly not for more than $1,500, the maximum coverage available for an insured of Mr. Flaherty’s age. The majority did not find it relevant to review the extensive medical history following the 1969 surgery to remove Flaherty’s malignant jawbone and upper palate. The record supports Mrs. Flaherty’s conclusion (Tr. 196) that after 1970 her husband was in the hospital more than he was at home.

When Mr. Flaherty was -working for a shipping concern as master of ocean going vessels, he weighed 180 pounds. After the 1969 surgery he was unable to get sufficient nourishment. The tubes inserted through Flaherty’s nose to his stomach were not adequate, so the doctors at Marine Hospital in New Orleans performed surgery inserting tubes through the abdomen area directly into the stomach. This operation was performed in the spring of 1973. Flaherty continued to regurgitate his food and would almost smother, so the tube directly into his stomach was removed. From October of 1972, when the bank first made the loan, until January of 1974 Flaherty’s weight decreased from 140 pounds to 86 pounds.

In January of 1974 Mrs. Flaherty took her husband to the hospital so that they might insert tubes and build up his weight. After one day Flaherty was discharged “because 'at that time (there was) no further benefit from his hospitalization. He refused his medication. He refused to stop smoking. He had caused several burns of bedding with cigarettes, still refused to stop smoking, somewhat of a danger to himself. He kept insisting (on) receiving narcotic medications which we did not feel he needed.” (Deposition of Marine Hospital physician.)

Dr. McCann was Flaherty’s local treating physician. As the reason for Flaherty’s February 12, 1974 death, he gave “metastatic carcinoma.” At Tr. 232 he gave his reason for this conclusion:—

. .on the basis that his wife is— has explained to me that he had carcinoma of the throat and he has had multiple operations of the throat and mouth area to eliminate his carcinoma; and that he has been treated in New Orleans ; it was some unreasonable — well not unreasonable but some enormus number of surgical procedures that the wife told me he had — like 19 or 25 or something that was very unusual; and the fact that he was having all the typical symptoms of a terminal cancer patient (unintelligible interruption) excruciating pain; just going to nothing, you know, at the final stages of his illness.”

The record leaves no doubt that Flaherty was starving to-death because he could not take sufficient nourishment, and that he was heavily sedated with narcotics during the last months of his life.

Mansura State Bank made the first loan to the Flahertys in October of 1972 while Flaherty was on one of his extended hospital stays. Mrs. Flaherty was brought into the Mansura bank by the bank’s owner Mr. Roy. In the presence of Roy, the Mansura bank’s vice-president Bordelon, and the Mansura bank’s executive vice-president and cashier Ducote, Mrs. Flaherty stated her husband was in the hospital. Mrs. Flaherty testified that Roy knew her husband but hadn’t seen him in some time. There is no indication that Bordelon or Ducote knew Flaherty.

The October 1972 loan was secured by a mortgage on the Flaherty’s home place property. The property may be of insufficient value to secure the loan, for in referring to Mrs. Flaherty’s financial condition her attorney stated at Tr. 266, “you can’t get blood out of a turnip.” The 1972 mortgage and note were signed by both Mr. and Mrs. Flaherty. Mrs. Flaherty took the papers to the hospital in New Orleans for her husband’s signature. The October 1972 loan was insured by a Gulfco six month credit life policy on Flaherty’s life. Without an additional application by Mrs. Flaherty, the bank issued a new six month policy on Flaherty’s life in April of 1973. In these policies, Ducote stated Flaherty’s age to be 59. It is not entirely clear why this misinformation appeared on the policies.

When the insurance was about to expire in October 1973, Mrs. Flaherty applied to renew and increase the loan. She brought the new note to her- husband who was at home in Avoyelles Parish at the time. The $10,000 credit life insurance on Flaherty was written October 3, 1973 and Flaherty’s age was stated on the face of the policy to be 68. The original of this policy was mailed to Gulfco on November 12, 1973 (Tr. 133), and copies were mailed to the Flahertys shortly thereafter. At Tr. 172 and 176, Mrs. Flaherty testified they received two copies of this policy two months before her husband passed away. Flaherty looked at them and said “well, I’m insured.”

The trial court held the evidence to show “gross negligence and omissions which the court feels and holds, are entirely due to the fault of the defendant’s agents and employees. The policy was issued by defendant’s agent; he asked no questions; he collected the premiums; the company received those . . .” I can agree with these conclusions when it is noted the bank was made a defendant by the pleadings. The bank received 60% of the premium and the bank cannot close its eyes to evidence so readily available.

Only twenty-six lines appear on the face of the policy. Five of these lines set forth the “sound health” exclusion and set forth the presumption that the insured is not of sound health when the assured dies of a disease or sickness he had six months before the policy date. This. is set out in clear legible print on the face of this extremely short policy. The print is the same size as the print explaining the death benefits provided by the policy. To suggest that the executive vice-president and cashier of a bank would sign such an important document hundreds of times without once comprehending his role in the issuance of this coverage is not acceptable to me.

The trial court went on to hold the “ . . . errors or neglect of duty here are attributable to Gulf-Co Insurance Company’s agents and officers; and not to the bank or its employees.” This appears to me to be manifestly incorrect.

I respectfully dissent.

ON APPLICATION FOR REHEARING

MILLER, Judge (voting to grant a rehearing).

I vote for rehearing for the sole purpose of reconsidering our rejection of defendant Gulfco’s third-party demand against Mansura State Bank.

To clarify reasons assigned in my dissent, I submit the majority erred in rejecting the third-party demand. I understand this holding was based on Gulfco’s ratification of the contract. In ratifying an agent’s action, the principal incurs a binding obligation to a third party. The social policy which protects the innocent third party does not require excusing an agent for his negligent or wrongful act. Ducote was aware Flaherty was hospitalized and never appeared at the bank. To write a policy of credit life insurance without inquiry as to the cause was grossly unreasonable and a reckless disregard of his fiduciary obligation to Gulfco.

Ducote received no commission for writing the insurance and performed the task solely as part of his bank duties. Whether he or the bank is the nominal agent for the insurance company, the bank is responsible for Ducote’s acts in the course of his employment.

Ducote not only failed to inquire about Flaherty's health, but wrote the policy for an amount far in excess of limits allowed by terms of the policy. Accepting his testimony to a complete lack of instruction, it was doubly incumbant that he read the terms of the instrument he was executing. It is respectfully submitted that, at the very least, Ducote and the bank should be cast for the amount in excess of the limits.

Ducote’s conduct in executing an instrument for his principal without regard to its content is so gross that it is unreasonable to relieve him of responsibility, especially since he acted as a responsible bank officer.


author: CULPEPPER, Judge.

text:
    NORTH AMERICAN CONTRACTING CORPORATION et al., Plaintiffs and Appellants, v. John GIBSON et al., Defendants and Appellees.
    No. 5266.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1975.
    Rehearing Denied March 17, 1976.
    Writ Refused May 11, 1976.

      James L. Fortson, Jr., and Hal V. Lyons, Shreveport, Calvin T. Guidry, Lafayette, for plaintiffs and appellants.
    Davidson, Meaux, Onebane & Donohoe by John G. Torian, II, Lafayette, for de-. fendants and appellees.
    Before CULPEPPER, GUIDRY and PAVY, JJ.
   CULPEPPER, Judge.

This is a suit for damages for breach of a construction contract. The plaintiff, North American Contracting Corporation, was the general contractor for construction of an apartment project. Defendants subcontracted to furnish the carpentry labor. Plaintiff contends defendants failed to perform in a workmanlike manner, failed to follow the specifications and finally “pulled off” the job before completion. Defendants contend they quit work because plaintiff failed to pay them the monthly “draws” to which they were entitled under the contract. The district judge, without assigning reasons, rejected plaintiff’s demands and dismissed its suit. Plaintiff appealed.

The apartment project was to be constructed on land owned by Dewey, Cheat-ham and Howe, Inc., which had previously entered into a contract with North American Contracting Corporation as general contractor. Both Dewey, Cheatham & Howe, Inc. and North American Contracting Corporation are controlled by Mr. R. L. Saucier, Jr. He is named as a party plaintiff, but actually has no individual interest in this suit. Turnkey Constructors, Inc., on the other hand, is owned by defendants, Jerry German and John Gibson. The subcontract provided that Turnkey was to perform the “carpentry work, rough carpentry and finish carpentry”. Defendants were to furnish labor only. The general contractor supplied all the materials. The project was to be constructed according to plans and specifications to be provided by the general contractor at a later date. The price to be paid to the defendants was based on the number of square feet or linear feet completed at different stages of construction, as for example, 550 per square foot for “rough carpentry” and 300 for “trim out”, etc. Defendants were to receive a monthly “draw” representing 90% of the price of the work completed in the prior month.

The project was to be financed by a loan from the Great American Mortgage Investment Company to Dewey, Cheatham & Howe, Inc. In this agreement, it was provided that “draws” would be submitted by North American as the work progressed and that the amount of a draw, less 10% “retainage”, would be paid to Dewey, Cheatham & Howe, Inc. for ultimate payment to the subcontractors. These draws were to be certified by Dewey, Cheatham & Howe, Inc., North American Contracting Corporation and by the inspecting architect, Mr. Ellis. In effect then, the draws were certified by Mr. Ellis and by Mr. Saucier, since he controlled both corporations. The loan agreement, which had been perfected prior to the instant contract with the subcontractor, Turnkey, allowed a total of $96,000 to be borrowed for carpentry labor. Mr. Ellis was inspecting architect for both the owner and the mortgagee. However, Mr. Saucier also had a “superintendent”, Max Lovelace, and 'later Jim Prine who was to check to be sure work was actually performed. Mr. Ellis was to inspect both workmanship and material and he certified draws by both the subcontractors and the general contractor.

The project was begun in August of 1971. Turnkey began work in the latter part of October or the first part of November of that same year. Work Progressed smoothly for a while hut later there was disagreement between the contractor and the subcontractor, Turnkey.

Though the contract provided that the subcontractor would be paid on a square foot basis, Mr. Saucier agreed that the first “draw” would be based simply on defendants’ expenses. However, this was only for the first month’s draw. Thereafter, the written contract controlled the draws. Mr. Saucier testified that after the first draw, amounts were certified to the mortgagee and a portion of that amount was paid to the subcontractor, Turnkey, according to “eyeball estimates” by him and his superintendent. Mr. Saucier continued to make draws and pay Turnkey in this manner until April of 1972, at which time he paid Turnkey for the work done during March. The trouble started when Saucier refused to pay Turnkey in May for work done during April. Saucier claimed that Turnkey at that point had already been overpaid for the work it had thus far completed. Turnkey disagreed and claimed that North American had breached its contract with Turnkey by failing to pay the amounts due. As a result of this disagreement, Turnkey “pulled off” the job and ceased all work on the project in early June of 1972.

There is no doubt that defendant Turnkey breached its contract with North American by “pulling off” the job without completing it. The first issue is whether defendants were justified in stopping work because they had not been paid the draws due under the contract. We. ultimately conclude that' at the time defendants pulled off the job, they had been paid more than the amount due them in draws under the contract.

We base our conclusion largely on the opinion of Mr. Jaco LeBlanc, a highly qualified architect, who had practiced for 18 years. Mr. Saucier contacted him in June of 1972 to do a progress report on the project. There is no evidence of any prior relations between them. In June of 1972, LeBlanc made a thorough examination of the project. He took pictures of the work and completed a room-by-room study of the amount of work that had been completed under the contract and of the quality of workmanship.

Mr. LeBlanc found that of the three units to be built in the complex, Unit 1 was 85% complete. He found Unit 2 to be 60% complete and Unit 3 only 50% complete. In Unit 1, for example, he found the paneling was not installed, some base molding was not installed, kitchen cabinets were not installed, hardware was missing, and linen closets were not installed. The photographs introduced into evidence clearly support his statements. Having determined the above percentages of the work completed from his inspection of the project, Mr. LeBlanc computed the monetary value of the carpentry work done by defendants using the square foot basis in the contract. On this basis, he computed that the value of the carpentry work completed by defendants was $49,875.56, including the 10% retainage. Thus, according to Mr. LeBlanc’s figures, defendant should have been paid only 90% of that amount, i.e., $44,888, in draws. Actually, defendants had been paid $66,916.30. Thus, at the time they pulled off the job, defendants had received $22,028 in excess of the draws due them.

Mr.' LeBlanc’s figures must be accepted by us as correct for the reason that he was the only expert who made a detailed inspection to determine the amount due defendants under the contract. The only other witnesses testifying as to the value of the work completed were John Gibson, a defendant, and John Ellis, the “inspecting architect”. Mr. Gibson’s testimony was of little value. He was unable to recall the exact square footage that he had completed. In fact, he couldn’t even estimate it. Mr. Ellis’ testimony is of little, if any, value. He testified that he inspected the premises and estimated generally the percentage of work completed at the time of each draw paid to defendants. He certified to Saucier and to the lending institution that the draws were in order. However, for at least the first two or three inspections, Mr. Ellis did not even know what the square foot price was according to the contract. He testified that he used the “percent completed”, that is, he knew what the draw was and based his decision on the amount of work that appeared to be complete.

We cannot comprehend how Mr. Ellis could possibly give an accurate estimate as to the value of the work performed or as to the amount Turnkey should have been allowed to draw when he was ignorant of the contractual provisions governing price per square foot and had made no inspection on a square foot basis. Actually, he never did make any detailed inspection, and did not testify in this case as to the amount due defendants under their contract. Another factor that influences our decision is that Mr. Ellis worked with Mr. Gibson at the time he was “inspecting architect” for Mr. Saucier. Both Mr. Ellis and Mr. Gibson testified as to this, as well as Mr. Saucier. ■

Viewing this case as a whole, we are impressed with the argument that the unGon-tradicted testimony of Mr. Saucier shows the total amount, including the 10% retain-age, which Turnkey could have received under its subcontract, was $84,432. Defendants did not even attempt to dispute this figure. There is also no dispute that Turnkey had been paid a total of $66,916 in draws at the time it pulled off the job. If we figure the 10% retainage, Turnkey would have had to have completed $74,351 of work, or 88% of the total job, to justify the $66,916 it had already drawn when it quit work. The testimony of Mr. LeBlanc and the pictures filed in evidence show beyond question that this project was nowhere near 88% complete.

Defendant urges that our decision should be controlled by the contract between North American and Great American Mortgage Investors, and that Turnkey is entitled to whatever draws were received by plaintiff from the mortgage company for carpentry work. Saucier admits he requested and received from Great American larger draws for carpenter work than those he paid to Turnkey. But he explained that he deposited the excess in the corporation, Dewey, Cheatham & Howe, Inc., and that these amounts were reserved for contingencies, such as weather and interest rates.

It is irrelevant how much money was received by Mr. Saucier from these draws from Great American or whether they were deposited to the account of Dewey, Cheatham & Howe, Inc. or used for personal expenditures as defendants attempt to prove. The contract with which we are concerned is the one between North American Contracting Corporation and Turnkey Constructors. Under that contract, Turnkey was entitled to be paid each month based on the square feet completed according to the price per square foot in the contract. The only exception to this was an oral agreement with Mr. Saucier as to the first month only.

Under the contract then, Turnkey was entitled to an amount determined on that basis by a certain date each month and to no more. It makes no difference that Mr. Saucier had agreed with a third party to borrow more than that amount. North American was bound to Great American for any amounts borrowed, without regard to amounts due Turnkey.

It should be noted that the agreement with Great American was confected prior to the final contract between North American and Turnkey. As Mr. Saucier testified, that contract contained merely an estimate of expected costs for carpentry labor and was apparently large enough to allow for a reserve. It is also important that the forms on which draws were certified to Great American do not state that all amounts certified in that draw will be paid to the subcontractor. It states only that “[t]he undersigned certifies that the work covered by this REQUEST FOR PAYMENT has been completed in accordance with the CONTRACT . . .” This language is certainly flexible enough to allow for a contingency fund comprised of a portion of the requested draw, and even if we construed this language to require the borrower to pay all amounts to the subcontractor, the statement at most would be an admission by Mr. Saucier to be considered along with other evidence. A breach of that draw agreement by Mr. Saucier would in no way entitle Turnkey to more money than was stipulated in its own subcontract.

In addition to breaching the contract by ceasing work on the project, defendants breached it by failure to perform in a workmanlike manner. Our law implies in every building contract that the contractor or subcontractor will perform in a workmanlike manner. Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2d Cir. 1974); Hebert v. Ready Pierrotti, 205 So.2d 888 (La.App. 3rd Cir. 1968). In the present case, defendants’ work did not meet this standard. The photographs introduced into evidence, which were taken by Mr. Jaco LeBlanc indicate clearly that the work on the apartment project was substandard. These photographs show doors not fitting properly wall studs out of line and not nailed properly, walls not on square and other defects. In addition, Mr. LeBlanc himself testified as to defects. He stated that doors were improperly hung, that rooms were the wrong size, that walls were misaligned and that in general the project exemplified poor workmanship.

Norman Parker, the painting contractor for the project, stated that the studding had not been finished by Turnkey enough to apply the sheetrock to it. He stated the place was dirty, that framing was missing, and that some studding was warped. He also reiterated that partitions were in the wrong place. The original supervisor for the project testified that the job was not kept clean and that there was a problem with Turnkey’s absenteeism. He stated that Mr. Gibson’s crew was usually the first to leave and the last to come back in inclement weather. One witness testified that there was a problem with Turnkey’s extension cords lying in water on the project, and several witnesses testified that the jobsite was littered with lumber, some even with nails in it, creating a hazard for other workmen.

In addition, there was much testimony that Turnkey delayed the project. Mr. Jim Prine, who replaced Mr. Lovelace as supervisor for the project in 1972, testified that the electrical, plumbing, sheet metal, roofing and concrete trades were delayed by Turnkey. According to Mr. Prine, Gibson was uncooperative in working on the project. Mr. Saucier testified that the electric subcontractor repeatedly complained about Turnkey’s delays and un-cooperativeness. Although Mr. Doyle Bell, who had worked for Turnkey on the project, testified that there were problems with obtaining materials and that roads were bad on the project and that this attributed to the delay, Mr. LeBlanc testified that in the amount of time Turnkey had to complete the project under normal conditions, 85% of the project should have been completed. The obligation not to delay other crafts is an affirmative one under Turnkey’s contract as well as an indication of unworkmanlike performance.

In brief, plaintiff also alleges certain damages were incurred by it due to the nonperformance of a separate contract by Turnkey to provide masonry work. It alleges that a slip of paper signed by John Gibson and introduced into evidence constituted a binding contract notwithstanding an agreement to later reduce it to a prepared written form. Plaintiff has not sustained its burden of proof on this issue. It is encumbent upon a party asserting validity of a contract to prove the existence of such. Walters v. Edwards, 212 So.2d 749 (La.App. 1st Cir. 1968). Likewise, we reject the plaintiff’s claim that certain damages to material were due to the fault of defendants. No negligence has been shown on the part of defendants in this regard, and there has been no proof of a contract of deposit.

Finally, defendants allege that Mr. Saucier’s motives in filing this suit are questionable. . They allege that Mr. Saucier possessed a “hate list” on which Mr. Gibson’s name appeared and that he requested a union representative to bomb Mr. Gibson. However, these allegations stem only from the testimony of Mrs. Saucier, Mr. R. L. Saucier’s wife. She, however, at the time of the suit was judicially separated from him. We accord no weight to her testimony.

We find therefore that defendants did breach the contract they entered into with North American Contracting Corporation by ceasing to perform under the contract, by failure to perform in a workmanlike manner, and by delaying the project. Thus, they are answerable to plaintiff dn damages.

Under LSA-C.C. Article 2769, if an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he agrees to do it, he is liable in damages for the losses that ensue from his noncompliance with his contract. See also LSA-C.C. Article 1930. The damages due for the breach of contract are subject to certain codal restrictions, the amount of the loss sustained and the profit of which the party has been deprived. In general then, the measure of damages for breach of a contract is the sum that will place plaintiff in the same position as if the obligation had been fulfilled. Harelson v. Parish of East Baton Rouge, 272 So.2d 382 (La.App. 1st Cir. 1972). The amount of damages must, however, be determined in relation to the contract and the circumstances which surround it. Jolley Elevator Company v. Schwegmann Bros. Giant Supermarkets, 230 So.2d 640 (La.App. 4th Cir. 1970). Generally, the damage attributable to a defect resulting from poor workmanship is the amount paid to remedy that defect. Cooperative Cold Storage Builders, Inc. v. Arcadia Foods, Inc., 291 So.2d 403 (La. App. 4th Cir. 1974).

The instant contract provided for a total contract price of $84,432. Turnkey had already been paid $66,916.30 and had performed, according to Mr. LeBlanc, $49,875.56 worth of work. Although plaintiffs have attempted to prove that $81,042.-42 was spent for union carpenters; $17,812.50 for a “college crew” for labor on the project; that workmen’s compensation insurance was paid on these workers (which was an obligation of Turnkey under the original contract) in the amount of $3,851, and that $371.73 was paid for ice and saw filing on the job, we cannot say that the evidence preponderates that these amounts were actually expended.

These amounts alleged are based principally on the testimony of Mr. Saucier. With regard to the items claimed for carpentry labor to complete the contract, Mr. Saucier testified that after the defendant ceased work, he paid the sum of $473.61 for installing felt on some of the units. The checks issued in payment of this work each contained a deduction for FICA taxes withheld. However, the names of the payees on these checks do not appear in the FICA report introduced into evidence. This latter fact raises considerable doubt as to the authenticity of these reports, which reports are the only evidence to corroborate the statements by Mr. Saucier that he expended the sum of $81,042.42 for carpentry labor to complete the project. Additionally, the FICA reports contain nothing to show that the amounts stated to have been paid were in fact paid in connection with work performed on the Oriental Garden Apartment project. Mr. Saucier admits the possibility that such reports may contain amounts paid for labor other than carpentry labor.

With regard to the amounts allegedly paid to a “college crew” for labor on the project, the checks purportedly issued for such work contain no notation as having been issued in payment of labor performed on this project. Many of the checks were issued to R. L. Saucier, III, and at least one was issued to Mrs. R. L. Saucier, III. None of these payees were carried on Saucier’s FICA report for the period during which they allegedly worked.

All of the items for which Mr. Saucier claims to have expended funds for completion of the project should have been more fully corroborated. Considering the evidence before us, we are unable to conclude that plaintiff has proved the amount of damages which he claims by a preponderance of the evidence.

However, plaintiff’s demands will not be rejected merely because he cannot establish exactly the amount in which he is damaged. Under these circumstances, the court must fix the quantum as best it can. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971) and cases cited therein.

Having found that plaintiff has a legal right to recover, we hold damages should be fixed on the following basis:

Amount actually paid to defendants under the contract $66,916.30
Less amount of work actually performed by defendants under the contract as per report of plaintiff's expert 49,875.56
Actual overpayment 17,040.74
Original contract price $84,432.00
Less amount of work actually performed when defendants pulled off job 49,875,56
Amount required to complete job 34,556.44 Amount to which plaintiffs are entitled, which includes $17,040.74 over payment and $34,556.44 to complete job $51,597.18

The only other question m the case is whether only Turnkey is liable in its corporate capacity or whether, on the other hand, John Gibson and Jerry German are also liable in their individual capacities. The record shows that the contract was entered into on September 10, 1971. Turnkey Constructors, Inc. was not incorporated until October 27, 1971. The contract was entered into, in the name of Turnkey Constructors, Inc. and was signed by John Gibson and Jerry German. We are presented then with the situation of agents signing a contract for a nonexistent principal. The situation is not that of an undisclosed agency relationship as plaintiff’s counsel suggests. Where an agent acts for a nonexistent principal, he becomes personally liable. LSA-C.C. Articles 3010, 3012 and 3013. The corporation, Turnkey Constructors, Inc., having recognized the validity and accepted the benefits of the contract, is also liable since it is estopped to deny its corporate existence at the time the contract was entered into. Oliver v. Home Service Ice Company, 161 So. 766 (La. App. 2d Cir. 1935).

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, North American Contracting Corporation, and against the defendants, Turnkey Constructors, Inc., John Gibson and Jerry German, individually, and in so-lido for the sum of $51,597.18, together with legal interest thereon from date of judicial demand until paid. All costs of these proceedings in both the trial and appellate courts are assessed against the defendants-appellees.

Reversed and rendered.


author: HALL, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Willard H. KILPATRICK, Defendant-Appellee.
    No. 12837.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Rehearing Denied March 15,1976.

    Writ Refused April 30, 1976.

      D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Robert L. Ledoux, Johnie E. Branch, Jr. and Jack C. Frugé, Sr., Baton Rouge, for plaintiff-appellant.
    Holloway, Baker, Culpepper & Brunson by Herman A. Castete and William H. Baker, Jonesboro, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ-

       Price, J., dissented from denial to grant rehearing.
      Hall, J., took no part in rehearing.

   HALL, Judge.

This is an expropriation suit arising out of the widening and improving of Highway 167, known as the Jonesboro-Hodge Highway. The district court awarded the defendant-landowner the total sum of $34,746.75 as just compensation, itemized as $24,396.75 for the property taken based on a finding of 10,843 square feet taken at a value of $2.25 per square foot, and $10,350 as severance damages based on a finding that the property remaining after the expropriation suffered a diminution in value from $2.25 per square foot to $2 per square foot. The district court also awarded a total of $4,022.62 for expert witness fees.

The Highway Department appealed specifying that the trial court erred (1) in determining the amount of land taken; (2) in finding that the subject tract had a value of $2.25 per square foot as commercial property at the time of taking rather than a value of $1.20 per square foot; (3) in awarding any severance damages; and (4) in awarding an excessive amount in expert witness fees.

Amount of Land Taken

The property owned by defendant at the time of the taking was an unimproved lot containing approximately 3i/á acres located at the northeast corner of Highway 167 (which runs north and south) and Alexander Street (which runs east and west) in Jonesboro, Louisiana. The lot was bounded on the west by Highway 167 and had a frontage of 237.5 feet on the highway according to the deed by which defendant acquired the property. The depth of the property, along Alexander Street, was 560.-2 feet.

The property expropriated is a small triangle in the extreme southwest corner of defendant’s property described as beginning at the southwest corner and measuring 29.4 feet along defendant’s west property line, 29.39 feet along defendant’s south property line, with a hypotenuse of 42.65 feet. The triangular tract taken contains 431.4 square feet.

It is undisputed that defendant’s west property line is established by the deed by which he acquired the property as the east right-of-way line of Highway 167. The point of disagreement which gives rise to the principal dispute as to the amount of land actually being taken is the location of the east right-of-way line of Highway 167. The Department of Highways contends the east right-of-way line of Highway 167, and consequently defendant’s west property line, lies 50 feet east of the center line of the highway by virtue of a recorded right-of-way instrument granted by defendant’s ancestor in title in 1929. Defendant contends the State has no recorded right-of-way and, consequently, the east right-of-way line of Highway 167, and the west line of defendant’s property, is the east line of the existing pavement. Defendant contends the Highway Department is actually taking and using, in connection with the widening project, several thousand square feet of defendant’s property lying between the edge of the pavement and a line SO feet east of the center line of the highway.

The Highway Department introduced into evidence a right-of-way deed recorded in December, 1929, by which J. P. Peevy granted to the State of Louisiana a right-of-way having a width of 50 feet on both sides of the center line of the Jonesboro-Hodge State Highway (Route #5), being a total right-of-way of 100 feet over and across his land, being the same land conveyed to him by W. S. Jones by act of sale dated February 20, 1919. By the act of sale referred to in the right-of-way deed, Jones sold to Peevy the W/2 of the SW/4 of Sec. 30, T 15 N, R 3W, in which the subject property lies, and other property.

In addition to the description of the right-of-way cited above, the right-of-way deed refers to the right-of-way as running through the “SW/4 of the NW/4” of Sec. 30. This is an obvious erroneous transposition of “NW/4 of the SW/4” which is clarified when viewed in light of the foregoing reference to the sale from Jones to Peevy, and when viewed in light of the fact that the Jonesboro-Hodge Highway actually runs through the NW/4 of the SW/4 of Sec. 30.

We hold that the right-of-way deed from Peevy to the State of Louisiana effectively conveyed a right-of-way 100 feet in width, 50 feet on both sides of the center line of the Jonesboro-Hodge Highway as located by the State highway engineer at the time the highway was constructed in about 1929. It follows that defendant is not entitled to be compensated for the property lying between the edge of the existing pavement and the 50 foot right-of-way line, which property lies within the existing right-of-way and is not owned by Defendant.

Defendant next contends that even if the State has a 50 foot right-of-way east of the center line of the highway, the line as staked by the Highway Department in connection with the current project encroaches 2 feet onto defendant’s property and defendant is entitled to be compensated for an additional strip 2 feet in width across the entire frontage of his property. Defendant further contends that his south property line is located approximately 5 feet south of the line as shown on the Highway Department survey and defendant is entitled to be compensated for additional square footage being taken on the south side of the triangle.

In support of his position defendant offered the testimony of and a survey prepared by Richard Crawford, an experienced and capable surveyor and civil engineer. Crawford’s survey shows the 2 foot encroachment and the additional property owned by defendant south of the tract shown on the Highway Department’s plat.

In arriving at the location of the southwest corner and the west line of defendant’s property, Crawford measured 50 feet east from the center line of the pavement of Highway 167 as it now exists. Crawford testified the highway had been widened since its original construction and that the only completely accurate way to determine the true center line of the highway as it originally existed would be to locate the original Highway Department monuments and markers, which was not done. ■ The validity of the property line established by Crawford on the basis of a measurement from the center line of the existing highway is questionable, according to his own candid testimony.

Even if Crawford’s location of the southwest corner of defendant’s property is correct, it does not follow that the Highway Department has taken more square footage than is contained in the triangular tract described in the Department’s petition and in the order of expropriation. The property taken is a triangle of certain dimensions in the southwest corner of defendant’s property. That is all the Highway Department has taken, regardless of the exact location of the southwest corner of defendant’s property on the ground. The triangular tract is being taken for clearance of view at the intersection and there is to be no physical construction thereon. The controversy as to the exact location of the southwest corner of defendant’s property on the ground and the exact location of the boundaries of the property taken can be determined in appropriate proceedings. The evidence presented in this case is not sufficient to make that determination. It is worthy of note that the defendant’s answer and the pretrial order in this case contain no reference to an issue as to the location and amount of property being taken, although some evidence relating to such issue was offered by defendant at the trial.

The holding of this court is that the Highway Department has expropriated a triangular tract 29.4 feet by 29.39 feet by 42.65 feet in the extreme southwest corner of defendant’s property, containing 431.4 square feet — nothing more, nothing less. The precise location of the triangular tract on the ground cannot be determined on the basis of the evidence in the present suit. In this proceeding the defendant is entitled to be compensated only for the 431.4 square feet actually expropriated.

Value of the Property Taken

The small triangular tract taken is a part of a corner lot on a major highway in Jonesboro. The front part of the property is zoned commercial and the rear part residential. All expert appraisers agree that the highest and best use of the property is commercial.

Using comparable sales, the Highway Department’s appraisers, Dan Carlock and L. J. Roy, estimated the value of the tract as a whole at $1.20 and $.65 per square foot respectively.

Also using comparable sales, but employing the front use-rear use approach, defendant’s appraisers, Loren Willet, H. L. Bass and O. L. Jordan, arrived at evaluations of $2, $2.50 and $2.50 respectively.

The trial court found the value of the property taken to be $2.25 per square foot.

Failure of the Highway Department’s appraisers to recognize additional value of the highway frontage as compared to the value of the parent tract as a whole weighs against the accuracy of their appraisals. Their appraisals also failed to make adequate adjustments for passage of time subsequent to the comparable sales and for location. The appraisals of Bass and Jordan may have overemphasized these factors. The appraisal of Willet is the most thorough and convincing as to true market value. Our review of the totality of the evidence leads us to the conclusion that the market value of the property taken is $2 per square foot. Based on 431.4 square feet taken at $2 per square foot, the award for the property taken is fixed at $862.80.

Severance Damages

The trial court determined that the remaining front-use tract was reduced in value from $2.25 per square foot to $2 per square foot and awarded $10,350 as severance damages.

The Highway Department’s appraisers were of the opinion there were no severance damages. They were of the opinion the taking of the very small triangular parcel in the corner would not affect the value of the remaining property, which remained substantially the same in size, susceptibility of commercial development, and value.

Defendant’s appraisers estimated severance damages at $5,027 (Willet), $10,000 (Bass) and $5,364 (Jordan). Construction plans in evidence show that barrier curbs are to be constructed at the intersection of Highway 167 and Alexander Street, which curbs will extend for some distance in front of and to the side of defendant’s remaining property. Defendant’s appraisers were of the opinion that the construction of the curbs, together with catch basins to be constructed for drainage purposes, would limit the number of driveways which could be constructed from the highway to defendant’s remaining property and would result in additional cost for the construction of driveways. Defendant’s appraisers related these items to market value of the remaining tract in arriving at their estimates of severance damages.

Defendant’s appraisers put considerable emphasis on the effect of regulations adopted by the Highway Department pursuant to LSA-R.S. 48:344 regulating entrances and exits adjacent to highways. The Department correctly argues that the statute was in existence and applicable before the current widening of Highway 167 and any restraint brought about by the provisions of the statute and regulations thereunder does not result from the taking.

The evidence as to additional development costs and diminution in value of the remaining property by virtue of the highway construction is somewhat speculative. Defendant’s evidence is convincing, however, that there will be some diminution in value of the remaining property by reason of limitation of access and additional development costs arising out of the taking and construction. In our judgment the sum of $2,500 will adequately compensate for severance damage.

Expert Witness Fees

The district court awarded expert witness fees as follows:

O. L. Jordan $ 1,425.00

H. L. Bass 1,275.00

H. Loren Willet 1,187.50

Lavelle Nunn (photographer) 285.12

Richard Crawford Total 450.00 $ 4,022.62

The Highway Department contends the expert witness fees awarded are excessive. In several recent expropriation cases involving this same highway project, or other projects in the Jonesboro area, and involving most of the same witnesses, this court found similar fees to be excessive and reduced the awards of the district court. See State, Department of Highways v. DeJean, 322 So.2d 265 (La.App.2d Cir. 1975); State, Department of Highways v. Bounds, 319 So.2d 549 (La.App.2d Cir. 1975); State, Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App. 2d Cir. 1975) writ denied 318 So.2d 60 (La.1975); State, De partment of Highways v. Whitman, 313 So.2d 918 (La.App. 2d Cir. 1975) writ denied 319 So.2d 443 (La.1975); State, Department of Highways v. Model Development Corporation, 322 So.2d 270 (La.App. 2d Cir. 1975); and State, Department of Highways v. Oil Mark Corporation, 324 So.2d 606 (La.App. 2d Cir. 1975).

Defendant argues the present case is different because the expert witnesses more precisely itemized and described the services rendered and the time involved, thereby substantiating the charges made by them.

Considering the evidence as to the services rendered by the expert witnesses, the value of the property taken and severance damages awarded, and the amounts allowed for expert witness fees in other similar cases recently before this court, we disallow the fee for the photographer and fix the expert witness fees as follows:

O. L. Jordan $ 700.00
H. L. Bass 700.00
Loren Willet 700.00
Richard Crawford 250.00
Decree

For the reasons assigned, the judgment of the district court is amended to reduce the amount awarded to defendant from $34,746.75 to $3,362.80, and to fix the expert witnesses fees as set forth above. As amended, the judgment of the district court is affirmed.

Amended, and as amended, affirmed.


author: SMITH, Judge.

text:
    Dr. C. E. BOYD, Plaintiff-Appellant, v. John C. BRAY, Defendant-Appellee.
    No. 12815.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Rehearing Denied March 15, 1976.

      Cuthbert H. Mandell, Shreveport, for plaintiff-appellant.
    Wiener, Weiss & Madison, by John M. Madison, Jr., Shreveport, for defendant-ap-pellee.
    Before BOLIN, MARVIN and SMITH, JJ-

       Price, J., dissented from denial to grant a rehearing.

   SMITH, Judge.

Plaintiff, C. E. Boyd, instituted a posses-sory action praying that he be maintained in possession of a tract of immovable property in Caddo Parish described as follows:

Lots Number One Hundred Forty (140), One Hundred Forty-one (141), One Hundred Forty-two (142), and One Hundred Forty-three (143), of the Bell-view Subdivision, a subdivision of the City of Shreveport, Caddo Parish, Louisiana, as per plat of record in the Conveyance Records of Caddo Parish, Louisiana.

Plaintiff alleged that he had possessed Lot 143 since he acquired it in 1951 and that he had possessed Lots 140, 141 and 142 since acquiring it in 1967. He further alleged a civil disturbance of possession by defendant, John C. Bray, who allegedly caused a judgment ordering a partition by licitation affecting at least a part of this property to be recorded in the Conveyance Records of Caddo Parish.

Defendant Bray filed a peremptory exception of no cause of action, based on no allegation of corporeal possession or of civil possession preceded by corporeal possession by plaintiff or his ancestor in title. He also pleaded prescription alleging that the disturbance occurred more than one year previous to plaintiff’s filing of the possessory action.

Plaintiff then filed an amended petition supplying the necessary allegations of corporeal and civil possession of the property as owner for more than a year previous to the filing of his action. Defendant subsequently abandoned the plea of no cause of action.

A hearing was conducted on the plea of prescription. Several documents, including quitclaim deeds filed in the Conveyance Records in 1966, and a notice pending action affecting a portion of the property described in plaintiff’s petition, were introduced into evidence. Defendant Bray testified that there had been no attempt to physically possess any of the property. An extract of the minutes of Court reveal that on February 5, 1975, for reasons assigned, judgment was rendered sustaining the plea of prescription. No formal judgment was signed at that time.

On February 26, 1975, the defendant filed an answer and a plea of res judicata. In his answer defendant admitted the possession of plaintiff as to that portion of the property described in plaintiff’s petition except for the northwesterly 25 feet of that property. As to this 25 foot strip of land, defendant placed title at issue by claiming its ownership. As a basis for the peremptory exception defendant alleged that there had been previous litigation between the same parties, in the same capacities, on the same cause of action, and having the same object as the instant suit once it was converted into a petitory action by defendant’s pleadings. See Bray v. Heirs of Eliza S. Harris, Watson, et al., 286 So. 2d 508 (La.App.2d 1873); writs denied 287 So.2d 189 (1974).

After hearing on the res judicata plea, judgment was rendered sustaining the defense. Judgment was signed on the res ju-dicata plea dismissing plaintiff’s suit on May 14, 1975. Judgment sustaining the plea of prescription and dismissing plaintiff’s suit was signed on June 13, 1975. Plaintiff perfected this appeal.

We note that there are two judgments of dismissal in this case. The first judgment of dismissal to be signed was that based on the plea of res judicata. LSA-C.C.P. art. 1911 requires that with certain exceptions not applicable here, all final judgments shall be signed by the judge. A judgment based on either the plea of prescription or the plea of res judi-cata is a final judgment disposing of the-case; therefore, it must be signed to be effective. Although judgment was rendered orally on the prescription plea, that judgment was not signed until after judgment on the plea of res judicata was rendered and signed:

LSA-C.C.P. art. 1951 provides:
“A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.”

Changing the basis for the dismissal of the case is changing the substance of the judgment. For that reason, the second judgment signed in this case must be considered an attempt to make an impermissible amendment to the judgment signed on May 14, 1975. Therefore, the only valid judgment before this court on appeal is that rendered on May 14, 1975, sustaining the plea of res judicata and dismissing Boyd’s suit.

Examination of the record reveals that the trial court was in error in sustaining the plea of res judicata filed by Bray. As noted above, Bray’s answer to plaintiff’s petition admitted that Boyd had possession of the property except for a certain part along the northwestern boundary of the subject tract. As to the latter parcel, Bray alleged that he was the owner of it while denying that Boyd had possession. The effect of such an answer is to convert the suit into a petitory action and confess the possession of the plaintiff in the pos-sessory action. LSA-C.C.P. arts. 3651, 3657.

Once a defendant in a possessory action has converted the lawsuit into a pet-itory action, he becomes the plaintiff and the original plaintiff becomes the defendant. See Allison v. Maroun, 193 La. 286, 190 So. 408 (1939); Carmody v. Land, 207 La. 625, 21 So.2d 764 (1945). After the conversion of the suit from a possessory action to a petitory action, Bray must be considered the plaintiff and Boyd the defendant.

At the time of his answer, Bray filed a peremptory exception of res, judicata. LSA-C.C.P. art. 921 defines exception:

“An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant, whether in the principal or an incidental action, to retard, dismiss, or defeat the demand brought against him.” (emphasis supplied)

Bray was attempting to plead a judgment rendered in his favor recognizing him as owner of an undivided 22%3fi interest in a tract of land, part of which may be involved in the present litigation, as a bar to Boyd’s possessory action. The posses-sory action had been abated by, and the petitory action instituted by, Bray when he asserted ownership in the disputed tract. He cannot be allowed to end his own litigation by pleading the exception of res judi-cata. He was no longer in the position to present defenses, for he was no longer the defendant.

Under the circumstances of this case as postured at the time of the exception, it was error for the trial court to sustain the exception and dismiss the case.

For the foregoing reasons the judgment of the lower court is reversed and the case is remanded for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are to be paid by appellee. Assessment of costs in the lower court are to await final determination of the case.