text:
    RONALD A. COCO, INC., Plaintiff-Appellee, v. W. E. PARKS LUMBER COMPANY, INC., Defendant-Appellant.
    No. 12883.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    Hebert & Moss by Donn Moss, Baton Rouge, for defendant-appellant.
    Roy, Kiesel & Patterson by Michael A. Patterson, Baton Rouge, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

This is an appeal from a permanent injunction in favor of plaintiff, Ronald A. Coco, Inc. (Coco) restraining defendant, W. E. Parks Lumber Company (Parks) from pursuing arbitration against Coco using the rules of the Japanese Commercial Arbitration Association.

Both Parks and Coco are Louisiana corporations. They entered into a three-party contract with Takashimaya Company, Ltd. (Takashimaya), a Japanese Corporation relating to the supply, manufacture, and sale of lumber for bowling lanes. The contract was divided into two parts. Part one was entered into between Parks as exporter and Takashimaya as buyer. Parks agreed to cause to be manufactured and to sell to Takashimaya certain yellow pine lumber for use by Takashimaya for bowling lanes according to certain prices, delivery schedules, etc. Part two of the contract containing the manufacturing provisions and specifications was entered into by both Parks and Coco, and was also made a part of the contract between Parks and Takashi-maya.

Part two provides for Parks, called purchaser-exporter, to supply lumber to Coco, called manufacturer, and for Coco to manufacture the lumber in accordance with certain specifications at certain prices and for delivery by Coco to Parks of the manufactured product. Part two contains the following arbitration clause which is the basis of this lawsuit:

“ARBITRATION SETTLEMENT
“All disputes, misunderstandings, controversies, or differences, which may arise between parties, out of or in relation to or in connection with this contract, or for the breach thereof, which cannot be satisfactorily resolved, or settled between the Purchaser-Exporter and Manufacturer shall be settled by arbitration pursuant either to the rules of the United States Arbitration Association or of the Japanese Commercial Arbitration Association, the arbitration rules to be applied and used are the rules of the country against whom the arbitration is sought.”

During the course of performance of the contract Takashimaya advised Parks that some of the lumber was not manufactured in accordance with specifications and withheld payment thereof from Parks. Parks in turn advised Coco of the problem and Parks withheld payment from Coco.

The dispute was not resolved amicably and on March 30, 1973, Parks filed a demand for arbitration with the Japanese Commercial Arbitration Association naming Takashimaya and Coco as respondents. On April 2, 1973, Coco filed a demand with the American Arbitration Association in Baton Rouge naming only Parks as a respondent. On April 10, 1973, Parks sued in the Nineteenth Judicial District Court to enjoin Coco from proceeding with his demand before the American Arbitration Association.

Also, on April 10, 1973, Coco filed the instant suit againt Parks in the Sixth Judicial District Court for Tensas Parish seeking to enjoin Parks from proceeding with the arbitration before the Japanese Association. Coco also filed suit in the Sixth Judicial District Court against Parks for a money judgment for the lumber sold and for damages.

In the suit filed' by Parks against Coco in East Baton Rouge Parish, the district court ultimately rendered judgment enjoining Coco from proceeding before the American Arbitration Association. This judgment was affirmed in W. E. Parks Lumber Company, Inc. v. Ronald E. Coco, Inc., 297 So. 2d 925 (La.App.), writ refused, 302 So.2d 23 (La.App. 1st Cir. 1974).

Judgment was subsequently rendered in the instant suit in Tensas Parish enjoining Parks from proceeding with the arbitration before the Japanese Association.

On appeal, Parks argues that the dispute involves Takashimaya and arbitration proceedings were instituted with the Japanese Association against the Japanese firm and Coco, which is in accordance with the arbitration clause in the contract. Parks further argues that the arbitration proceeding with the Japanese Association is consistent with the holding of the First Circuit in the Parks v. Coco case which held that Coco could not proceed with arbitration against Parks before the American Association.

We cannot agree with either of these positions taken by appellant.

We find the provision of the agreement relating to arbitration of disputes cannot be construed to require that Coco submit to arbitration in Japan. This is true whether the proceeding is brought against Coco alone or in a proceeding also joining the Japanese firm. The language of the arbitration clause clearly provides “the arbitration rules to be applied and used are the rules of the country against whom the arbitration is sought.” By reference to the exhibits in the record, it is made clear that the Japanese Commercial Arbitration Association cannot and will not apply the American Association rules in a proceeding before it. It thus appears, arbitration is not available in the present dispute between Parks and Coco under the provisions of the contract and their differences will necessarily have to be resolved in a court of law. It should be noted that there is presently pending litigation to accomplish this purpose in the Sixth District Court.

Appellant also complains there has been no finding by the trial court of irreparable injury to justify injunctive relief. We find it apparent on the basis of the record that the plaintiff, Coco, would suffer irreparable injury which could not be compensated for in monetary damages if it were forced to submit to arbitration in Japan under the rules of the Japanese Arbitration Commercial Association to resolve its claims against Parks.

For the foregoing reasons, the judgment appealed is affirmed at appellant’s costs.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Roy CAMP, Plaintiff-Appellee, v. R. C. GIBBS, Defendant, Jenard M. Gross d/b/a Gross Construction Company, Garnishee-Appellant.
    No. 12880.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.

      Nelson & Achee, Ltd., by Dale G. Cox, Shreveport, for garnishee-appellant, Jen-ard M. Gross d/b/a Gross Const. Co.
    Bodenheimer, Jones, Klotz & Simmons, by Harry D. Simmons, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

In this garnishment proceeding, Jenard M. Gross, garnishee, appeals from a judgment rendered against him in favor of Roy Camp, plaintiff, in the amount of $2,538.22, plus interest and attorney’s fees, being the balance due on a judgment previously rendered in favor of plaintiff against R. C. Gibbs. We reverse the judgment of the district court and order the garnishment proceeding against Jenard M. Gross dismissed.

On November 8, 1968, plaintiff obtained a judgment against R. C. Gibbs. In September, 1972, plaintiff filed a petition for garnishment naming as garnishee “Jenard M. Gross d/b/a Gross Construction Company.” Gross, in proper person, answered the interrogatories attached to the petition. In answer to the question of whether he was indebted to defendant in an amount sufficient to satisfy the writ of fieri facias issued herein, Gross answered: “Yes, but materials have been installed on jobs and have not been paid for; which would take all funds available to satisfy.” In answer to a question if he had made any payment to or had any transaction with defendant since service of the garnishment petition Gross answered: “No. I have paid the supplier that furnished materials on our job to the sum of $5,817.64.” Thereafter, on ex parte motion of the judgment creditor, judgment was rendered against Gross as garnishee for the balance due on the judgment against Gibbs.

Subsequently, Camp and Gross filed a joint motion to set aside the judgment against garnishee because . . of difference of interpretation of the answers to interrogatories by garnishee, it being understood that attorney for garnishee will obtain additional information for clarification of answers . .

Gross then filed an answer to the petition for garnishment and amended answers to the interrogatories denying any indebtedness to Gibbs. It was alleged that Jen-ard M. Gross had no contract with Gibbs; that Gross Builders, Inc. had two contracts with Gibbs whereby Gibbs was to furnish labor and materials in connection with a construction project in Caddo Parish calling for payment of $32,793; that $25,627 had been paid to Gibbs on the contracts; that Gibbs was indebted to a supplier of material for $7,227.75, which supplier had filed a lien for that amount against the construction site property; that Gibbs’ contract with Gross Builders, Inc. provided that Gibbs would furnish a lien release or that the contractor could make checks jointly to the subcontractors and suppliers; and that the amount due on the material-men’s lien exceeds the balance due on the contract to Gibbs.

Camp filed a motion to traverse the answer of garnishee alleging that Gross Builders, Inc. is not a Louisiana corporation, has not qualified to do business in the State of Louisiana, and that the construction project was actually constructed by Jenard M. Gross d/b/a Gross Builders. Plaintiff prayed that the original judgment against garnishee be reinstated.

The controversy was submitted to the court for decision on a joint stipulation of facts as follows:

“a. That Jenard M. Gross is the sole shareholder of Gross Builders, Inc.
b.That Gross Builders, Inc. is a Texas Corporation and has not qualified with the Secretary of State, State of Louisiana to do business in Louisiana.
c. That the building permit to construct the Southfield Apartments, 109 Southfield Road, Shreveport, Louisiana was applied for by Wayne E. King who showed the owner as Jenard M. Gross.
d. That the ownership of Southfield Apartments is in King’s Highway Joint Venture, a partnership composed of Interstate Electric Company of Shreveport and Jenard M. Gross.
e. That the R. C. Gibbs was a subcontractor under contract with Gross Builders, Inc. represented by Stanley J. Williams, President to perform terrazzo tile work on South-field Apartments as per copies of contracts attached hereto and made a part hereof.
f. That on or about September 1, 1972, R. C. Gibbs had been paid a total of $25,627.00 on the two contracts aforementioned.
g. That on or about September 1, 1972, there remained a balance of $7166.00 on the sub-contract between R. C. Gibbs and Gross Builders, Inc.
h. That Roy Camp had a garnishment served on an individual (not Jenard Gross) in Shreveport, Louisiana, at Southfield Apartments with said petition naming Jenard M. Gross d/b/a Gross Construction Company as Garnishee.
i. That since service of the garnishment as set forth, no payments have been made as to the sub-contract except to suppliers of materials.
j. That M & M Tile Sales, the supplier of materials to R. C. Gibbs on Southfield Apartments, filed a lien subsequently in the sum of $7,227.75 for materials used in the construction.
k. That in order to obtain a cancellation of the lien and permit disbursement of loan proceeds on the projects, in behalf of Kings Highway-Joint Venture, the closing attorney paid the remainder of the sub-contract funds from the loan proceeds to M & M Tile Sales.
l. That the contractor reserved the right to make checks payable jointly to the sub-contractor and supplier in the event a lien release was not furnished by sub-contractor.
m. That no funds are due R. C. Gibbs in excess of the claims of the supplier, M & M Tile Sales, which were paid.”

For written reasons appearing in the record, the district court rendered judgment in favor of plaintiff.

On appeal, Gross makes the following specifications of error:

(1) The District Court erred in finding Jenard M. Gross the proper party defendant-garnishee rather than the corporation, Gross Builders, Inc.
(2) The District Court erred in not allowing the defense of set off urged by the defendant-garnishee.
(3) The District Court erred in allowing the corporate veil of Gross Builders, Inc., to be pierced for one purpose but not for all purposes.

The joint stipulation of facts and the copies of the contracts in evidence disclose plainly that Gibbs contracted with Gross Builders, Inc., a corporation represented by its President, Stanley J. Williams. Any balance due to Gibbs under the contracts was due by Gross Builders, Inc., the corporation, and not by Jenard M. Gross individually, unless the corporate entity is to be disregarded and the corporate veil pierced.

The stipulated facts and documents in the record do not justify a conclusion that the contracts were actually entered into by Gross, personally, or that the corporate entity, of which he was the sole shareholder, should be disregarded or that he should be personally responsible for the corporate debt created by the contracts.

The facts relied on by plaintiff to support his contention that Gross, rather than the corporation, was indebted to Gibbs under the construction contracts are (1) Gross Builders, Inc. is not qualified to do business in the State of Louisiana; (2) a building permit signed by one Wayne King shows Jenard M. Gross as the owner and shows the owner as the builder; (3) Jen-ard M. Gross is the sole shareholder of Gross Builders, Inc.; and (4) Gross was a part owner of the property owned by the joint venture composed of Gross and another party. These facts do not justify disregarding the corporate identity and allowing plaintiff to proceed against Gross individually as if he had entered into the contracts with Gibbs.

Louisiana law expressly and specifically provides that corporations may be formed by one or more persons. LSA-R. S. 12:21. An individual may form a corporation for the sole of primary purpose of avoiding personal liability. As long as the corporate existence is maintained intact, immunity from individual liability of a sole or majority shareholder is the same as if there were a multiplicity of shareholders. Hughes Realty Company v. Pfister, 245 So.2d 757 (La.App. 4th Cir. 1971).

The corporate entity may sometimes be disregarded where a shareholder has practiced fraud upon a person through a corporation and where a shareholder disregards the corporate entity to such an extent that the separate individualities of the corporation and its shareholders have ceased to exist, so that the corporation is merely the alter ego of the shareholder or shareholders. Hughes Realty Company v. Pfister, supra; Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., 227 So. 2d 265, 268 (La.App. 2d Cir. 1969).

The facts relied on by plaintiff do not even suggest that fraud was practiced by Gross on Gibbs or on plaintiff, with whom Gross had no dealings whatsoever. The facts do not support a finding that Gross disregarded the entity of the corporation, or was merely carrying on his personal business through the corporation, or that the separate individualities of the corporation and its shareholder ceased to exist, insofar as the contracts with Gibbs are concerned. The contracts themselves between Gross Builders, Inc. and Gibbs, upon which plaintiff’s entire claim rests, strongly support a contrary conclusion. The contracts clearly stipulate that the contracting party is Gross Builders, Inc., and the contract is signed by Stanley J. Williams as President. The joint stipulation of facts states that Gibbs was a subcontractor under contract with Gross Builders, Inc. The stipulation of facts recites that the balance due was on the subcontract between R. C. Gibbs and Gross Builders, Inc. Any indebtedness owed to Gibbs under the contracts in question was owed by the corporation, not by Jenard M. Gross individually. It follows that plaintiff is not entitled to judgment against Gross individually as garnishee based on an indebtedness owed by the corporation to the judgment debtor.

Even if it could be said that Gibbs’ contracts were with Gross personally (and we hold to the contrary), the stipulated facts negate the existence of an indebtedness owed by the general contractor to the subcontractor, Gibbs. It was stipulated that there remained a balance on the subcontract price, but the contracts expressly provide that the subcontractor is to furnish a lien release signed by suppliers, which would be a precedent to payment of the contract price. It is clear from the stipulated facts that this was not done and that, in fact, one supplier remained unpaid and filed a lien for an amount in excess of the balance due on the contract price. Under the stipulated facts, the general contractor, whether it be Gross or Gross Builders, Inc., was not indebted to Gibbs for the balance of the contract price at the time the garnishment was filed. Gibbs could not have enforced payment of the balance due on the contract price. Plaintiff, as judgment creditor of Gibbs, cannot assert any greater rights than could his judgment debtor. The judgment creditor is not entitled to judgment against the general contractor as garnishee based on the subcontracts.

For the reasons assigned, the judgment of the district court is reversed and set aside and it is ordered, adjudged and decreed that there be judgment herein rejecting the demands of plaintiff, Roy Camp, against Garnishee, Jenard M. Gross, and dismissing the garnishment proceedings herein.

Reversed and rendered.


author: MARVIN, Judge.

text:
    AMERICAN BANK AND TRUST COMPANY IN MONROE v. CARSON HOMES, INC.
    No. 12875.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.

      Milton P. Masinter, New Orleans, for defendant-appellant.
    Jones, Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellee.
    Before BOLIN, MARVIN and SMITH, JJ-
   MARVIN, Judge.

Defendant appeals a judgment in favor of plaintiff Bank for $4,783.14, which was the amount of overdrafts in defendant’s checking account during a brief period of time when defendant was negotiating with the Bank for an additional loan to complete the construction of an apartment complex. We affirm.

The Bank handled the interim financing for the construction by defendant, initially secured by a $600,000 first mortgage on the property. By February, 1975, the Bank had advanced more than $700,000 on the project which was further secured by a $100,000 second mortgage and by pledges of savings account and certificates of deposit of defendant’s president (Fox). At that time, Fox represented that defendant needed an additional $125,000 to complete the project. The Bank required and obtained a $300,000 third collateral mortgage as security for past advances as well as for future loans which it might grant to defendant. There was no additional money loaned or advanced after that time and there was no additional hand note executed by defendant.

On its investigation, the Bank determined that it would take much more than $125,000 for defendant to complete the construction. The Bank declined to make further advances or loans to defendant.

Before the Bank obtained the $300,000 mortgage and it declined further advances, defendant had written checks on its account to several subcontractors, laborers and materialmen connected with the construction. The Bank honored these checks which were overdrafts, as defendant did not have and did not deposit in its checking account sufficient funds to cover the checks. After the Bank declined to lend additional funds, defendant refused or neglected to comply with the Bank’s demand to satisfy the overdrafts. When defendant did not respond to the Bank’s demands this suit followed.

Defendant contended below and here that it relied on its execution of the $300,000 third collateral mortgage note and representations by the Bank that the additional funds would be advanced, otherwise he would not have written overdrafts. Because of this reliance, defendant claims the doctrine of equitable estoppel should be invoked to avoid judgment against it for the amount of the overdrafts. In effect, defendant would relegate the Bank to foreclosing or suing on the third collateral mortgage note as defendant’s president admitted in his testimony that defendant "owed” the overdrafts.

Under our law, a collateral mortgage note is considered to be dormant until it is pledged to secure a hand note executed to represent the actual indebtedness. See Odom v. Cherokee Homes, Inc., 165 So.2d 855 (La.App.4th Cir. 1964), writ denied, 246 La. 867, 167 So.2d 667, and “The Collateral Mortgage,” 33 La.L.R. 497. A hand note was not executed here because the Bank declined to make further loans or advances to defendant. Even assuming ar-guendo defendant’s position as to the facts of the case, the amount of the overdrafts would have become due on demand, payment was demanded by the Bank and the Bank was in a position to sue either on the debt, the loan, the overdrafts (by whatever name) or on the pledged collateral mortgage note. It is elementary that a creditor may sue on the debt or on the instrument securing the debt. By whatever title, the debt was due in this instance.

Our Supreme Court last discussed the doctrine of equitable estoppel in this language :

“Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate conduct. Founded upon good faith, the doctrine is designed to prevent injustice by barring a party, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence. . .
“Since estoppel bars the normal assertion of rights, courts apply the doctrine cautiously .
“To raise an equitable estoppel, the record must establish not only that the pleader relied upon a representation or other conduct, but also that he was justified in so doing. Justifiable reliance is fundamental.” American Bank v. Trinity Universal Ins. Co., 251 La. 445, 205 So.2d 35, 40 (1967). (Citations omitted). (Emphasis Ours)

Defendant’s contended reliance was not “justifiable” under the circumstances of this case, to use the words of the Supreme Court.

The issues below, factually and legally, were resolved against defendant. We find no error. At appellant’s cost, judgment is

AFFIRMED.


text:
    Louise McAvoy SCOTT v. John Loyd SCOTT.
    No. 12895.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.

      J. Stacey Freeman, Shreveport, for defendant-appellant.
    James B. Wells, Bossier City, for plaintiff-appellee.
    Before HALL, MARVIN and SMITH, JJ-
   MARVIN, Judge.

A money judgment was rendered below in favor of the mother and against the father, for expenses relating to the birth of the child of the marriage. Birth occurred about five months before legal separation was awarded the mother. The father appeals.

The mother’s suit for separation, filed after the birth of the child, included the demand that the father be ordered to pay expenses of some $800 connected with the birth. Judgment was rendered in the separation suit on October 15, 1975, but made no mention of this demand.

On October 16, 1975, the mother petitioned for a rule to show cause, alleging by reiteration her original demand that the father be held for the expenses relating to the birth, and alleging that by stipulation between counsel, it was “agreed” that the matter of the expenses of childbirth would be taken up by rule at a later date.

On October 30, when the rule was heard, the father, through his attorney, filed a peremptory exception of no cause or no right of action (La.C.C.P. Art. 927) and the dilatory exception of unauthorized use of summary proceedings (La.C.C.P. Art. 926(3)). The record reflects that on October 30, 1975, the exception of no cause or right of action was filed, argued and overruled, and that there was judgment in favor of the plaintiff-in-rule, signed and filed, for the amount prayed for.

The father contends that since the expenses of childbirth were paid not by the mother of the child of the marriage, but by the maternal grandmother of the child, the mother is without cause or right of action against the father. The transcript vaguely indicates that the lower court considered the dilatory exception against proceeding summarily by rule, but the record and abstract of minute entries below do not show that the dilatory exception was ruled on or otherwise disposed of by the lower court.

At the conclusion of the hearing the lower court stated:

“I don’t think there is any distinction between the expenses for supporting the child as ordered by this court some time ago in this case, and the expenses which were prayed for before the judgment was rendered. Why it was not taken up, I don’t know, but the court is going to render judgment for the expenses in connection with the birth at this time on this rule, in the amount prayed for. I believe that’s what the established amount was. Mr. Sheriff you may adjourn court.”

By Act 130 of 1974 summary proceedings were authorized for “. . . [t]he original granting of, subsequent change in, or termination of, alimony, child support . . . ” Art. 2592(8), La. C.C.P.

Once a judgment has been signed granting a separation or divorce, and the judgment is silent as to medical expenses arising before the suit for separation was filed, the wife’s later attempt to enforce the husband’s obligation for such medical expenses is not an incidental issue arising in the course of litigation under Article 2592 (1), La.C.C.P. It is not, insofar as to medical expenses arising 'before the suit for separation, a “subsequent change in” child support or alimony unless the plea therefor is coupled with and interrelated with future alimony or child support. La.C.C.P. Art. 2592(8). Summary proceedings under such circumstances are subject to the dilatory exception under La.C.C.P. Art. 926(3). The objection to summary proceeding may be waived as in Nelson v. McCarter, 212 So.2d 467 (La.App. 2d Cir. 1968), or the use of summary proceedings may be consented to by stipulation. This record contains nothing more than the mere allegation that such a stipulation was made. In the absence of proof of such a stipulation, summary proceedings were unauthorized here.

The trial court analogized the childbirth expenses to the expenses of supporting the child and particularly emphasized that the expenses of childbirth were .prayed for in the original petition. There may have been other factors known to the trial court which would support his statement quoted supra to this effect. The record before us is barren in this respect. On the basis of the record before us the peremptory exception of no cause and no right of action should have been sustained. Plaintiff will be given the opportunity afforded by La.C.C.P. Articles 933 and 934.

The judgment below is reversed and the case is remanded for further proceedings consistent with this opinion, with plaintiff being allowed 30 days from the date this opinion becomes final to correct, amend or supplement her pleadings to remove procedural deficiencies.

Costs of this appeal are assessed against appellee. Costs below shall be assessed upon final disposition there.

Reversed and Remanded.

      . The original petition, the support judgment and the judgment of separation are not contained in this appellate record. After dissolution, the wife’s claims against the former community are relegated to the action of partition. See Daigre v. Daigre, 230 La. 472, 89 So.2d 41 (1966).


author: BOLIN, Judge.

text:
    STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Milton C. MANASCO et al., Defendants-Appellants.
    No. 12889.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.

      Burnett, Harrison, Sutton & Walker, by Glenn E. Walker, Shreveport, for defendants-appellants.
    William W. Irwin, Jr., Jerry F. Davis, Alva J. Jones, Johnie E. Branch, Jr., by Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellee.
    Before BOLIN, PRICE and SMITH, JJ.
   BOLIN, Judge.

Under the authority of the “quick taking” statute (La.R.S. 48:441 et seq.), the Department of Highways expropriated in full ownership a 3.984 acre tract of land owned by defendants, Milton C. Manasco, Doyle L. Wise, and Donald L. Wise. The Department deposited $25,850 in the registry of court as just compensation for the taking. Defendants answered plaintiff’s petition alleging just compensation to be $40,783. After trial, the lower court held defendants had not proved value in excess of the amount previously deposited in the registry of the court. From a judgment rejecting defendants’ demands, they appeal seeking an increase in the award. We affirm.

The sole issue relates to the amount to be awarded defendants for their property which was expropriated by plaintiff for highway construction.

On May 15, 1972, defendants purchased a rectangular 11.684 acre tract of land located in the southwest part of the City of Shreveport. The Meriwether Road formed the northern boundary of the property and a dedicated but unopened street formed the western boundary. The 3.984 acres taken by the Department was the rear portion of the 11.684 acre “parent tract”.

Defendant Manasco testified defendants acquired the parent tract for development into a residential subdivision. When defendants consulted the Metropolitan Planning Commission, they were informed of the possible expropriation of the rear part of the tract. Manasco testified the defendants considered developing the front 7.7 acres which would remain after the expropriation but concluded such development would not be economically feasible. On January 5, 1973, defendants sold the front 7.7 acres of the property to a church for $75,000. As a result of this sale, the expropriation of 3.984 acres on December 6, 1973, constituted a total taking of defendants’ property.

The Department offered the testimony of only one expert appraiser, who testified the highest and best use of the property taken was for residential subdivision purposes. Using the “market data” approach, he concluded the property had a value of $6,-250 per acre. The appraiser’s comparable sales were of tracts ranging in size from 5 to 17 acres. Two of the sales involved the parent tract, being the defendants’ acquisition of the parent tract in May of 1972 and the sale by defendants of the front portion of the property to the church in January of 1973.

Defendants’ sole expert appraiser also used the “market data” approach. However, his comparables were established residential subdivision lots. He adjusted the price paid for these comparables to reflect the value of undeveloped subdivision lots. He concluded the subject property had a value of 23j/£ cents per square foot, or $40,783 for the entire tract.

The trial court rejected defendants’ demands based on a finding that the Department’s comparables, particularly the two sales involving the parent tract, most nearly reflected the value of the property and that defendants had “failed to prove a value in excess of that paid by the State for the taking of the property.”

Defendants make two arguments on appeal. First, they contend the court erred in valuing the property on a “raw acreage” basis, i. e., valuing the property as if sold as a whole to another developer. Defendants contend the property taken was in the process of being developed into a residential subdivision and therefore the value should be calculated by the following formula: retail value (of each individual subdivision lot) plus developer’s profit minus development costs. Second, they argue that even if the proper method of valuation is on a “raw acreage” basis, the court erred in not awarding more than the amount the Department deposited in the registry of court.

On the first issue, defendants argue they purchased the parent tract for development into a residential subdivision. They contend development of the property had begun and that just compensation should therefore reflect a developer’s profit. Defendants cite and rely on State, Department of Highways v. Terrace Land Co., Inc., 298 So.2d 859 (La.1974).

In Terrace Land Company the issue was “whether an owner-developer of property best suitable for residential subdivision purposes is entitled to be compensated at the retail value of the land taken, including a developer’s profit, less development costs, or at the amount a purchaser-developer would pay for the land on an acreage basis.” The Department in that case expropriated a 14 acre tract of land from a 90 acre subdivision. Forty-one acres of the subdivision had already been developed into lots, most of which had been sold. The court held:

“. . . that an owner-developer is entitled to recover on the basis of the individual retail value of each lot (less development costs, but not less the developer’s profit) if sold in the ordinary and usual course of business. Of course, as to be noted more fully, this rule applies only where the sale of lots for subdivision purposes is reasonably prospective, and only where the evidence shows that the owner-developer is actually in the process of developing and selling the land as subdivision lots, as compared with merely holding an undeveloped tract for its potential subdivision development.
******
“. . . Thus, awarding a raw-acreage rather than a retail-lot value may be appropriate when, at the time of the taking, the subdivision-value of the land is only potential rather than being actually developed for purposes of resale by the owner himself at the time of the taking. State, Department of Highways v. Rapier, 246 La. 150, 164 So.2d 280 (1964).”

In the instant case, the lower court in written reasons for judgment stated:

“The evidence did not disclose any effort on the part of defendants to improve the land for the development of a subdivision such as Mr. Manasco described in his testimony and on which defendant contends they are entitled to compensation, nor were we impressed with his testimony that such was his intention.”

We are in accord with this finding. Defendants failed to show they had taken sufficient steps toward the development of the property to bring them within the principles anounced in Terrace Land Company.

On the second issue, there is ample evidence in the record to support the trial court’s judgment. From a careful review of the entire record, we find the highest and best use of the expropriated tract would be for a potential residential subdivision. We also find the weight of the testimony supports the value placed on the property by plaintiff, which value the lower court accepted as reflected by its written reasons and judgment.

The judgment is affirmed at appellants’ cost.


author: ELLIS, Judge:

text:
    Succession of Annie (Anne) Miller de LASSUS.
    No. 10682.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Writ Refused July 2, 1976.
    Thomas L. Giraud, New Orleans, for appellant.
    Richard Kilbourne, Clinton, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

Anne Miller de Lassus died testate on July 8, 1970, leaving no forced heirs. She left two olographic wills, both dated September 30, 1963, the dispositive provisions of which are identical and read as follows:

“I give and bequeath to my nieces Ann M. Bilbray and Inez M. Lamantia my home here in Ethel and all the furniture. No furniture to be removed from the house.
“.any other property or money E may have, at my death, is to be divided to my brother’s children, Henry W. Miller.”

At the time of the death of Mrs. de Las-sus, there were four living children of Henry W. Miller: Mrs. Edna Miller Span-ler, Mrs. Inez Miller Lamantia, Mrs. Anne Miller Bilbray, and Mrs. Dorothy Miller Hazel. He also left four grandchildren, Robert A. Miller, Philip A. Miller, Thomas B. Miller and Frederick A. Miller, children of his deceased son, William Henry Miller.

Mrs. Hazel formally renounced the succession of her aunt, and Mrs. Spangler, Mrs. Lamantia and Mrs. Bilbray were sent into possession of the estate by ex parte judgment dated October 28,1970.

This suit for nullity of the judgment of possession was filed by the above named grandchildren of Henry W. Miller, alleging that they are “children” of Henry W. Miller under the provisions of Article 3556(8) of the Civil Code, and alleging fraud on the part of the other legatees under the will, as well as on the part of the executor, Clarence Spangler. They further demand on accounting of their alleged legacies from the said legatees.

Mrs. Spangler, Mrs. Lamantia, Mrs. Bil-bray and Mr. Spangler answered and reconvened for damages allegedly resulting from the allegation of fraud on their parts.

By stipulation, the matter was submitted to the court on all of the pleadings contained in the record. Thereafter, the court rendered judgment dismissing the main demand, and stating:

“No evidence having been submitted by said defendants on their demand in re-convention, same is considered abandoned.”

From that judgment, the plaintiffs have appealed and the defendants have answered the appeal, praying that they be awarded judgment on their reconventional demand.

Article 3556(8) of the Civil Code provides as follows:

“8. Children—Under this name are comprehended, not only the children of the first degree, but the grandchildren, great-grandchildren, and' all other descendants in the direct line.”

Plaintiffs argue that the word “children” in the will of Mrs. de Lassus must be given the same meaning, and they should be recognized as “children” of Henry W. Miller and legatees under the will probated herein.

The point has already been decided adversely to plaintiffs’ contention in Wharton v. Executors of Silliman, 22 La.Ann. 343 (1870). In that case, the court held that the word “children” when used in a will, was to be given its ordinary significance, and that the definition of the term in the Code had application in interpreting its provisions, but “not when used in the ordinary affairs of men.” See Poydras v. Poydras, 1 La. 153 (1830).

With respect to the reconventional demand, we find that defendants are not entitled to the relief sought herein because their cause of action has not yet arisen, and will not arise until the judgment dismissing the main demand becomes final. Calvert v. Simon, 311 So.2d 13 (La.App. 2 Cir. 1975).

The reconventional demand was properly dismissed, but the dismissal should have been without prejudice, since the cause of action sued on has not yet arisen. The exception of no cause of action may, of course, be supplied by the court on its own motion. Article 927, Code of Civil Procedure.

The judgment appealed from is therefore amended so as to dismiss the reconventional demand without prejudice, and, as amended, it is affirmed, at plaintiffs’ cost.

AMENDED AND AFFIRMED.


author: LANDRY, Judge.

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY v. Edward ROBERTS et al.
    No. 10695.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.

      A. Michael Dufilho, Baton Rouge, for defendants-appellants.
    Kenneth E. Barnette, Baton Rouge, for plaintiff-appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendants Asplundh Tree Expert Company, Asplundh Service Company and As-plundh ' Brush Control Company (As-plundh) and their liability insurer, The Aetna Casualty & Surety Company (Aet-na), appeal from judgments rendered against them in this and the consolidated cases of John Ashley v. Edward Roberts et al., La.App., 331 So.2d 539, and Henry S. Martin v. Edward Roberts et al., La.App., 331 So.2d 541, all of which actions result from an automobile accident allegedly caused by Asplundh’s employee Edward Roberts. In this present action Appellants seek reversal of judgment in favor of St. Paul Fire & Marine Insurance Company (St. Paul) for the sum of $10,000 paid by St. Paul to the injured plaintiffs in the consolidated actions, which payment was made pursuant to the uninsured motorist clause in its policy covering the vehicle being driven by the plaintiff in the Martin action. We affirm the judgments rendered in each of these consolidated cases.

Mrs. Jonnie Sharon Ashley Martin and her husband Henry S. Martin brought suit against Roberts, Asplundh and Aetna for personal injuries sustained by Mrs. Martin, related medical expense and damages to the Martin vehicle which was being operated by Mrs. Martin at the time of the accident. John Ashley filed suit, individually and as Administrator of the estate of his minor daughter, Judith Ashley, against Roberts, Asplundh and Aetna for personal injuries sustained by said minor as guest passenger in the Martin car, and medical expense incurred in treatment thereof. While this action was pending, Miss Ashley reached majority and was substituted as party plaintiff as regards her personal injuries and medical expenses incurred subsequent to her attainment of legal age. Mr. Ashley remains a party plaintiff in that action with respect to his claim for medical expense incurred during his daughter’s minority.

The accident occurred at approximately 7:00 P.M., August 8, 1971, on Highway 1028, a two lane black-topped roadway, about two miles north of Denham Springs and approximately one-tenth of a mile south of the junction of Highway 1028 and Highway 64. Roberts, driving his personally owned vehicle and accompanied by his friend, Elton Barnes, was proceeding northerly (away from Denham Springs). Mrs. Martin, driving her family car and accompanied by her sister, Judith Ashley, was proceeding southerly upon Highway 1028, having entered said roadway from Highway 64 a few moments before the accident. The highway was wet from recent rain, and a mist was falling at the time of the mishap. The impact occurred in a curve. The Roberts vehicle crossed the center line of the highway and struck the Martin vehicle in its proper lane of travel. It is undisputed that Roberts lost control of his vehicle, due either to wet brakes, mechanical brake failure, excessive speed or some other not fully explained cause. It suffices that the trial court found that the accident occurred solely because of Roberts’ fault. This determination is not seriously questioned by Appellants and, indeed, could not be seriously disputed inasmuch as Roberts testified unequivocally that his vehicle was on the wrong side of the highway at the moment of impact. We find no difficulty in affirming the trial court’s determination that Roberts was solely at fault.

ISSUES OF FACT

The prime issue in this litigation is As-plundh’s alleged vicarious liability for Roberts’s negligence, which issue must be resolved upon a finding of whether or not Roberts was acting within the scope and during the course of his employment by Asplundh at the time of the accident. In some respects the evidence on this pivotal issue is highly conflicting.

Asplundh’s business is clearing and maintaining rights of way for utility companies, such as operators of pipelines, distributors of electrical power and telephone companies. Roberts was employed as a working foreman in charge of a crew consisting of two subordinates. The duties of the crew consisted of cutting and clearing trees, brush, overhanging limbs and other obstructions from rights of way. Each crew was provided with the necessary tools and equipment, consisting of axes, brush hooks, ropes, power saws and a truck equipped with a “chipper,” a device which reduced limbs and brush for easy removal from job sites. As foreman, Roberts had control of the truck, which, according to company policy, he customarily kept at a service station that would furnish As-plundh weekly credit for gasoline and supplies. Roberts purchased all supplies from accommodating station owners and sent in a weekly account to Asplundh who then mailed its check directly to the station operator in payment. The crews worked a normal 40 hour week, 8 hours daily, Monday through Friday. Roberts assembled his crew each morning at the site where the truck was kept and from there the men proceeded to the work site for the day. Roberts also entered on his weekly expense account, and thereby obtained reimbursement for, any personal funds that he may have expended for company purposes.

Roberts’s crew was under the supervision of Asplundh’s general foreman, William L. Beach, who resided in Denham Springs and who was in charge of approximately 10 such crews. Beach assigned Roberts’s crew to a particular utility with whom As-plundh had a contract to clear right of way. At the time of the accident Roberts’s was clearing rights of way for the telephone company whose officials designated the particular right of way on which Roberts worked. Except for choosing the work site, the utility official had no control over the crew. Ordinarily, Beach checked on each of his crews in the field about once or twice a week. On such occasions he checked the progress of the work, consulted with the foreman about problems encountered on the job, and inspected the tools and equipment the foreman had on hand. Although it was primarily Roberts’s duty to keep his crew supplied with tools and equipment, Beach carried a supply of replacement tools and equipment such as hand saws, files, saw blades and ropes, in his station wagon while making his rounds and supplied these as needed to his foremen as an accommodation. Roberts was virtually on his own as to the manner in which he conducted his crew. He was free to improvise work methods within limitations. In effect, he was accountable to Beach only as to the amount of work performed to the satisfaction of the particular client involved. Roberts customarily checked with Beach approximately once each week, either by telephone or personal visit to Beach’s residence, to discuss work progress and any problems that Roberts might have. Roberts had full authority to hire members of his crew. While he could lay off a crewman for disciplinary measures, Roberts could not permanently discharge a member of his crew without Beach’s approval. The weekly expense reports which Roberts submitted were handled by Beach, who approved the reports before payment by As-plundh. It is conceded that each crew was supplied with a two cycle engine power saw used to cut trees, limbs and brush. Each such saw requires that the gas used as fuel also contain lubricating oil. It is also conceded that it was the duty of each crew foreman to see that he had sufficient gas and oil to operate his power saw.

Roberts, who lived in Ponchatoula, testified that he called Beach from his home on the Saturday morning before the accident, to discuss problems related to the progress of Roberts’s crew on the telephone company job. During the conversation, Roberts mentioned to Beach that Roberts had purchased a case of Homelite power saw oil, a product marketed by the Homelite Saw Company whose saws were used exclusively by Asplundh’s crews. Roberts mentioned that he had made a good buy of a case of oil from a dealer in Roseland and that he intended to use the oil in the power saw furnished his crew.

Roberts testified that he planned to use the oil to mix with the gas used in the power saw employed by his crew and that he expected to be reimbursed the cost of the oil as it was used by entering the amount each week on his expense account. Roberts also testified that when he mentioned the oil to Beach, Beach requested Roberts to bring one-half of the case to Beach’s home because Beach needed the oil to deliver to other crews the following Monday. Roberts stated that he informed Beach that his (Roberts’s) car was being repaired that day but that Roberts would bring the oil to Beach’s home on Sunday if Roberts’s car was ready by then. Roberts readily conceded that he agreed to deliver the oil to Beach without expectation of compensation and purely as a favor to Beach. He explained that he thought it advisable to accommodate his employer and thus retain Beach’s good will. Following delivery of his car on Sunday, Roberts rode around Ponchatoula for a time that afternoon with a friend, Elton Barnes, and asked Barnes if he cared to ride to Den-ham Springs where Roberts had to deliver some oil to Roberts’s boss. Roberts testified further that he drove directly to Den-ham Springs on U.S. Highway 190. He left the oil at Beach’s home with Beach’s son since Beach was not at home.

Beach acknowledged Roberts’s call and some discussion about a case of oil that Roberts had purchased; Beach testified, however, that he had understood the oil to be for a power saw which Roberts had purchased for his own personal use. Beach denied asking Roberts to bring him any of the oil and stated that if he had made such a request, he would have instructed Roberts to use the company truck for that purpose. Beach also admitted that Roberts left several cans of oil at Beach’s home which Beach used in some personally owned equipment. Beach stated further that he did not use any of the oil in As-plundh’s work and that quite some time after the accident, he had two cans remaining which he delivered to a representative of Aetna.

Roberts testified that he left Beach’s home and decided to return to Ponchatoula via La. Highway 16 rather than return on Highway 190. He explained that on the way to Denham Springs he had seen several patrol cars on Highway 190, and since he had no driver’s license and the safety inspection tag on his vehicle had expired, he decided to take a back road route for the return trip and reduce the odds of his being stopped by a patrol car. He proceeded along Highway 16 and turned onto Highway 1028 about three-fourths of a mile north of Denham Springs. He planned to proceed northerly on Highway 1028 until he reached Highway 64, where he would turn right, or east, and proceed along Highways 64, 1026 and 1027 to Walker. At Walker he proposed to take Highway 190 back to Ponchatoula. However, the accident occurred on Highway 1028 shortly before he reached its junction with Highway 64. Barnes testified by deposition taken December 19, 1974, because considerable difficulty was experienced in locating him for service of notice. He stated that as he and Roberts were riding around the afternoon of the accident, Roberts told him that Roberts had to go to Denham Springs to deliver some oil to Roberts’s boss and asked Barnes to ride with him. Barnes also stated that Roberts drove directly to Denham Springs with no delays or detours and that Roberts left the oil at Beach’s home with Beach’s son because Beach was away at the time. Barnes contradicted Roberts’s testimony that Roberts was en route to Ponchatoula at the time of the accident. He said Roberts was going to Baton Rouge to contact a cousin of Barnes whom Barnes would request to be Roberts’s date for that evening. Barnes also stated that he was a musician and had a professional engagement in Albany at 8:00 P.M. that night, that his wife would accompany him on the engagement and that he would ask his cousin to come along as Roberts’s date to listen to the music. Barnes recollected that the matter of Roberts’s date was discussed while they were riding around in Ponchatoula before leaving for Denham Springs. He did not recall discussing the Baton Rouge trip while en route to Beach’s home or after leaving there. He assumed that Roberts would turn west on La. 64, which route Barnes ordinarily took into north Baton Rouge to visit his cousin who lived near the airport.

Asplundh introduced the testimony of its employees and representatives Ray Spencer, manager of Asplundh’s Louisiana operations; Beach and Mike Ballard, a foreman under Beach. In essence these witnesses stated that it was Asplundh’s policy to compensate all employees for overtime work and that Beach would not have directed Roberts to deliver oil to Beach’s home on a weekend without reimbursement for the time involved and without instructing Roberts to use a company vehicle for the delivery. They further attested to company policy which dictated that each crew foreman secure his own oil for power saws and charge the company for the cost by adding such items to the foreman’s weekly expense sheet. Beach testified that he did not normally distribute oil to crews for use in power saws, although he might have done so on rare occasions. Ballard testified that Beach never delivered power saw oil to Ballard on a job. Ballard also testified that he never worked on a weekend without being paid overtime. A former Asplundh foreman, W. A. Wallace, testified that on several occasions Beach asked him to perform certain tasks for As-plundh on weekends and after normal working hours, for which he received no compensation. He stated that on many occasions he delivered supplies to Beach and moved company trucks from one location to another without pay. In this regard, Roberts testified that he occasionally moved trucks for which services he was not paid.

Spencer and Beach attested to a strong company policy prohibiting employees from using personally owned vehicles for company business. However, Wallace and Roberts testified to use of their personally owned automobiles to transport employees to service stations for the purpose of moving company vehicles from one job location to another.

Spencer testified it was company policy that the crew foreman secure oil from the service stations where trucks were kept. Ballard affirmed this policy and added that Beach never distributed power saw oil to him. Contrarily, Roberts and Wallace stated that Beach delivered power saw oil to them in the field on numerous occasions.

In substance Beach and Ballard testified that Asplundh recommended that regular 30 weight non-detergent oil be used in the fuel for power saws as well as for oiling saw blades during operation. On this premise it is suggested that Beach would have had no reason to request Roberts to bring Beach special Homelite oil for distribution to the crews. It is conceded that the saws require a fuel mixture of gas and oil. Roberts and Wallace testified that the oil used in power saw fuel was the same or similar to outboard motor oil and that ordinary oil would not serve this purpose, that is, that the oil used in the saws had to be oil that would burn freely for the saws to operate properly. In addition, Roberts and Wallace stated that Asplundh’s supervisors recommended Homelite oil or outboard motor oil for use in power saw fuel. Wallace recalled that he used ordinary oil in saws only when Homelite or outboard motor oil was unavailable because he got much better results from the saws when he used the proper oil in the fuel mixture. Ballard conceded that Asplundh’s Foreman’s Manual recommended use of Homelite oil in power saws but noted that a regular 30 weight non-detergent oil might be substituted.

Roberts’s credibility was vigorously attacked because, at the accident scene, he prevailed upon Barnes to tell the investigating officer that Barnes was driving Roberts’s automobile. Roberts readily conceded his participation in the deception and explained his conduct on the ground that he did not want to be charged with driving without a valid driver’s license. However, the next day, Roberts and Barnes voluntarily sought the investigating officer and admitted their duplicity.

Roberts recalled that some time during the afternoon he and Barnes discussed the matter of a date but he did not recall their talking about it on the way to Denham Springs or after leaving there on the return trip. Barnes contradicted Roberts by testifying that the matter of a date for Roberts was discussed on the way to Den-ham Springs and that at the time of the accident Barnes was directing Roberts toward Baton Rouge.

The trial court saw Roberts testify and, in his written reasons for judgment, attested to his favorable impression of Roberts’s candor. The trial court obviously rejected Barnes’s testimony because, among other things, Barnes readily acknowledged that Roberts was currently one of Barnes’s worst enemies for reasons emanating from the accident.

We experience difficulty in accepting Barnes’s testimony that Roberts was en route to Baton Rouge. The accident occurred at about 7:00 P.M. Barnes’s cousin was unaware of Barnes’s plans for her that night, it being Barnes’s intent that she spend the night with Barnes’s parents after listening to Barnes play music. Roberts would have had to drive to Baton Rouge, persuade the young lady to go to Albany, afford her opportunity to dress and pack for her overnight stay and then drive to Albany, a total distance of about 55 miles, by 8:00 P.M. so Barnes could fill his engagement.

Plaintiffs-appellees vehemently objected to the introduction of Barnes’s deposition and its consideration by the trial court. It is contended that in a motion for summary judgment filed by defendants in the trial court, defendants admitted that Roberts was en route to Ponchatoula at the time of the accident. It is thus argued that Appellants are estopped from reversing this position and may not contradict their prior judicial admission. Plaintiffs also contend that the trial court erred in granting Appellant’s motion to take Barnes’s deposition because it was granted after Appellants formally closed their case for all purposes except the taking of further medical testimony.

Assuming the averments of Appellants’ motion for summary judgment to be judicial admissions or confessions, La.C.C. Article 2291 provides that a judicial confession may be revoked if based on an error of fact. The record indicates that at the time Appellants moved for summary judgment they had uncovered no evidence of Roberts’s intent to go anyplace except back to Ponchatoula after leaving Denham Springs. Being in error as to knowledge concerning this issue, Appellants were not judicially estopped by their declaration. J. H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 259 So.2d 882; Modicut v. Rist, La.App., 98 So.2d 268, and authorities therein cited. Moreover, Plaintiffs have not shown that they were deceived or misled by Appellants’ initial allegations, a prerequisite to Plaintiffs’ plea of estoppel. J. H. Jenkins Contractors, Inc. v. Farriel, above; De Maupassant v. Clayton, 214 La. 812, 38 So.2d 791; Frazer v. Day, La.App., 292 So.2d 870.

We find no error in the trial court granting Appellants a continuance for the purpose of taking Barnes’s testimony. The record reveals that Barnes’s testimony was vital to Appellants’ cause and that all possible diligence was exerted in attempting to secure his presence in court, but that service was not made on Barnes because he could not be located. Following the initial trial, Barnes was located and another subpoena issued for him to appear within the 90 day period fixed by the lower court. However, Barnes again disappeared before service could be made upon him. Based on information that Barnes was residing in the Tangipahoa-Livingston area, Appellants obtained two continuances for the taking of his testimony, the last until December 31, 1974. Ultimately Barnes was found and his deposition taken on December 19, 1974. Under these circumstances, we find that the trial court properly granted the continuances in question. See La.C.C.P. Article 1602.

The trial court accepted Roberts’s testimony that the prime purpose of the trip to Denham Springs was to deliver oil to Beach, which Roberts was doing solely in response to what he understood to „be a request from his superior to do so. The trial court also concluded that Roberts was enroute to Ponchatoula at the time of the accident and had no intention of going to Baton Rouge, notwithstanding that a trip to Baton Rouge might have been discussed between Roberts and Barnes at some time during the afternoon. We find no error in these conclusions.

ISSUES OF LAW

Appellants contend that, accepting as true the facts found by the trial court, Roberts was not acting within the scope and during the course of his employment, primarily because of a total lack of control of Roberts’s actions under the circumstances. Under our law, an employer is vicariously liable for injuries caused by his employees to third parties. This liability is imposed by La.C.C. Article 2320, which provides in pertinent part as follows:

“Art. 2320. Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

Pursuant to the foregoing codal authority, and the doctrine of respondeat superior which has been jurisprudentially grafted into our law, two essentials must be established before liability of an employer attaches, namely, (1) that a master-servant or employer-employee relationship existed between the employee tortfeasor and the employer, and (2) that the tortious act of the servant or employee was committed within the scope and during the course of his employment by the employer sought to be held liable. Blanchard v. Ogima, 253 La. 34, 215 So.2d 902, and authorities therein cited.

Appellants do not seriously question the existence of a master-servant relationship between Asplundh and Roberts. The record amply discloses the existence of that relationship and also establishes that, beyond doubt, Asplundh could have required Roberts to work overtime or on weekends if it so chose.

There is not, nor can there be, any hard and fast rule for determination of whether an employee is or is not acting within the scope and during the course of his employment. Each such instance must be determined in the light of its own peculiar facts and circumstances. Wright v. Romano, La.App., 279 So.2d 735; 53 Am.Jur.(2d) Master and Servant § 427 ; 60A C.J.S. Motor Vehicles § 452; Seavey, Law of Agency 148 (1964). The factors considered in making such a determination include the time the act was committed, meaning whether at a time the employee was obligated to perform a duty for his employer. Also to be considered are the place, circumstances and purpose of the act insofar as it may reasonably relate to or foster the employer’s business. Additionally, the motive of the employee in performing the act is of paramount importance, as also are the questions of whether the act is one usually performed by employees engaged in similar capacities and whether the employer had reason to expect such an act would be performed by the employee. See 53 Am.Jur.(2d) Master and Servant § 427.

We have found that Beach requested Roberts to bring him several cans of oil for distribution to Asplundh’s employees. Unquestionably, Beach possessed authority to require Roberts to work on a weekend or after ordinary working hours. While Roberts might have refused this particular request or demanded compensation, such action on his part may have jeopardized his position. The question posed is whether a servant who responds to his master’s request to perform a work-related act during off duty hours, especially where the master may require after hours work of the servant, is acting within the scope and during the course of his employment the same as though the servant had been ordered to perform the task.

The record indicates that Beach had sufficient control over Roberts’s overtime activities so that Beach could have directed Roberts to bring the oil by a specific mode of transportation had Beach so elected. Beach did not so opt even though he was fully aware that Roberts intended to use his personal vehicle for the errand when the vehicle’s repairs were completed. Under the circumstances, Roberts could reasonably assume that he at least had Beach’s implied permission to effect the delivery by using his personal car. While the question of compensation for such services is certainly to be considered in a case of this nature, we do not deem absence of an agreement to compensate to be determinative of the outcome. We believe the prime issue is whether the servant is actually in the process of performing a duty related act.

Appellants also invoke the “going and coming rule” by contending that Roberts was not within the scope or during the course of his employment because he had completed the delivery and had no further responsibility toward Asplundh once his errand was finished. They analogize Roberts’s conduct to that of an employee traveling to and from the site of his work or leaving work for meals, in which situations employees are not deemed to be within the scope or during the course of employment. Romero v. Hogue, La.App., 77 So.2d 74; Rollins v. New York Fire and Marine Underwriters, Inc., La.App., 225 So.2d 663. We are aware of innumerable authorities which apply the “going and coming rule” in instances where an employee is engaged to work in a particular plant or upon designated premises. In all such cases it is uniformly held that the master’s concern with the employee begins when the employee arrives at the place of employment and terminates when the employee leaves.

The jurisprudence has developed an exception to the mentioned rule when the master calls an employee away from the employee’s home or regular place of work to serve the master’s purpose. We refer to the “specific errand rule” which holds the master liable for the normal risks inherent in the employee’s travel in accomplishing such a special errand. We applied the “special errand rule” in Wright v. Romano, above and O’Brien v. Traders and General Insurance Company, La.App., 136 So.2d 852. In both the cited cases partial reliance was had on the fact that the employee received reimbursement of automobile expense. We do not deem remuneration to be an indispensable factor. We believe the master’s liability attaches to an accident which occurs while the servant is in the process of executing a mission requested or directed by his master for the master’s purposes.

Our brothers of the Third Circuit recognized the exception to the “going and coming rule” in Rollins v. New York Fire and Marine Underwriters, Inc., above, but did not apply the exception in that instance upon a purely factual determination.

Our application of the “special errand rule” finds support in its wide application in other jurisdictions. See Western Union Telegraph Co. v. Dubell, 3 Cir., 69 F.2d 149; Short v. United States, D.C.Del., 245 F.Supp. 591; Robinson v. George, 16 Cal.2d 238, 105 P.2d 914; Wilson v. Steel Tank & Pipe Co. of Oregon, 152 Or. 386, 52 P.2d 1120; Kuehmichel v. Western Union Telegraph Co., 125 Minn. 74, 145 N.W. 788; Boynton v. McKales, 139 Cal.App.2d 777, 294 P.2d 733.

We hold that an employee on a special errand, pursuant to specific request or direction of his master, is within the scope and' during the course of his employment from the time of embarking on the errand until his return or deviation from the mission for personal purposes. In this instance we find no deviation because Roberts’s intent was to return to his home, although the return route may have been slightly longer than that by which the delivery was made. We conclude that Roberts was acting within the scope and during the course of his employment at the time of the accident.

QUANTUM

It is not disputed that St. Paul paid Mrs. Martin and Judith Ashley $5,000.00 each pursuant to St. Paul’s policy providing uninsured motorist coverage with respect to the Martin automobile. Said payment sub-rogated St. Paul to the claims of its said insureds and St. Paul is entitled to rein-bursement in that amount.

The judgment of the trial court in favor of St. Paul and against Appellants As-plundh and Aetna, is affirmed, all costs of these proceedings to be paid by said Appellants.

Affirmed.


text:
    John ASHLEY v. Edward ROBERTS et al.
    No. 10696.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    A. Michael Dufilho, Baton Rouge, for defendants-appellants.
    Warren L. Mengis, Baton Rouge, for plaintiff-appellee John Ashley and others.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

This matter was consolidated with St. Paul Fire & Marine Insurance Company v. Edward Roberts et al., La.App., 331 So.2d 529. The same defendants in the consolidated action appeal from judgment rendered against them in favor of plaintiffs herein, John Ashley and Judith Ashley, aggregating $84,000. For the reasons assigned in St. Paul’s case, we affirm the finding of liability on the part of defendants Asplundh Tree Expert Company, As-plundh Service Company and Asplundh Brush Control Company (Asplundh) and their insurer The Aetna Casualty & Surety Company (Aetna). We discuss herein only the question of quantum.

The trial court awarded Miss Ashley and her father $9,000.00 for medical expense, past and future, the amount of which is not disputed by Appellants. However, Appellants strongly urge that the award of $75,000.00 to Miss Ashley for personal injuries is grossly excessive and should be drastically reduced.

Notwithstanding the constitutional mandate for appellate review of both law and facts in civil cases, our Supreme Court has decreed that effect must be given La. C.C. Article 1934(3) which provides that much discretion is vested in the trier of facts as regards assessment of damages for offenses and quasi-offenses. It has been repeatedly held that appellate courts should not disturb an award of damages assessed by judge or jury except where it is found that there has been a clear abuse of the discretion vested in the lower court. Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127; Miller v. Thomas, 258 La. 285, 246 So.2d 16, and authorities therein cited.

Miss Ashley was 16 years of age at the time of the accident. Her most serious injury was a deep cut under her chin, extending almost from ear to ear, which wound was described by one of her treating surgeons as almost like she had had her head cut off. Additionally, Miss Ashley suffered dual fractures to her mandible (jawbone), one fracture being a through and through break at the midline and the other being under the left ear. Miss Ashley also suffered multiple facial lacerations and the fracturing of tooth enamel resulting in the loss of two teeth. The midline jaw fracture was aligned by open reduction. The patient’s jaws were wired together for a period of approximately 7 to 8 weeks. Immediately following the accident, a tracheotomy tube was inserted in her throat to facilitate breathing and administration of anesthetics; the tube remained in place until October 20, 1971. For the first 10 days following the accident, she was fed intravenously. At the end of this period, a Levine tube was inserted in her nose so that she could be fed liquids and soft foods. The Levine tube also remained in place until October 20, 1971. On removal of the wiring from her jaw she experienced considerable difficulty and pain on trying to eat. It was early November, 1971, before she could eat normal table foods. Three months after the accident, Miss Ashley’s damaged central incisor was replaced with a full crown. In February 1972 another damaged tooth abscessed causing her jaw to swell considerably. The abscess was treated for three months and a root canal performed on the tooth when the infection was checked. Despite her dental injuries, Miss Ashley has suffered no loss of tooth function.

Throughout her recovery plaintiff was plagued by excessive tongue swelling which made swallowing difficult and greatly imp'eded her speech. At the time of trial she still experienced difficulty in moving her tongue and the attendant problems in eating and talking. She cannot move food around in her mouth with her tongue and she has to manually place food on the back of her tongue to chew or masticate properly. Due to her speech problem she cannot serve in a secretarial or clerical capacity where telephone answering is part of her duties, although she possesses all other requisite skills for such positions. Prior to the accident, plaintiff often spoke publicly during school and church activities. Since the accident she has been unable to do so because of her speech impediment, which condition has also caused her to abandon her interest in vocal music. She first returned to school for only two hours daily with tubes in her throat. During this period the pupils of her eyes dilated because of medication she was taking, which condition often made it difficult, if not impossible, for her to read. She salivated profusely and drooled constantly because she was unable to swallow her saliva due to the tubes in her throat. By mid term, the tubes were removed and her difficulties were somewhat relieved.

Miss Ashley married in May, 1974. She is presently able to perform all her household duties. She was released from all medical supervision before trial. She plans future repair of some of her facial and neck scars which, though noticable, are not disfiguring to an appreciable extent.

Considering the nature and extent of plaintiff’s personal injuries, the pain and inconvenience she has suffered as a result thereof, and the future inconvenience, discomfort and aggravation which she will experience, we find no abuse of the trial court’s discretion in awarding plaintiff the sum of $9,000.00 for past and future medical expense and $75,000.00 for general damages.

Counsel for Miss Ashley mentions in brief that the award of $9,000.00 for medical expenses should be increased to include damages proved at trial, though not stipulated as other damages were. Whatever the merit of counsel’s argument, Miss Ashley has not appealed or answered the appeal in the instant case and, therefore, cannot receive any additional relief.

The judgment of the trial court is affirmed, defendants Asplundh and Aetna to pay all costs of these proceedings.

Affirmed.


text:
    Henry S. MARTIN v. Edward ROBERTS et al.
    No. 10697.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.

      A. Michael Dufilho, Baton Rouge, for defendants-appellants.
    James H. Morrison and Timothy R. Higgins, Hammond, for plaintiff-appellee Henry S. Martin, and others.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

This matter was consolidated with St. Paul Fire & Marine Insurance Company v. Edward Roberts et al., La.App., 331 So.2d 529. The same defendants in the consolidated action appeal from judgment against them in favor of plaintiffs herein, Henry S. Martin and Sharon Martin in the sum of $66,000.00. For the reasons assigned in the St. Paul case, we affirm the finding of liability on the part of Asplundh Tree Expert Company, Asplundh Service Company and Asplundh Brush Control Company (Asplundh) and their insurer The Aetna Casualty & Surety Company (Aetna).

We consider the question of quantum only. The trial court awarded plaintiffs herein the sum of $6,000.00 for special damages, including past and future medical expense, and $60,000.00 for personal injuries, pain and suffering sustained and incurred by Mrs. Martin as a result of the accident.

As stated in the Ashley case, La.App., 331 So.2d 539, we are aware that appellate courts are not to disturb awards of trial courts in the assessment of damages in tort cases, save upon a finding of a clear abuse of the trial court’s discretion in such matters. Miller v. Thomas, 258 La. 285, 246 So.2d 16; Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127. We affirm the award for personal injuries in this case upon finding no abuse of the trial court’s discretion in this instance.

Mrs. Martin was 19 years of age and married at the time of the accident. Her injuries consisted of (1) severe facial lacerations leaving multiple noticeable scars, including a three and one-half inch scar extending from the left lower lip to the left cheek; (2) laceration of the left upper eyelid causing the eyelid to droop; (3)laceration at the medial end of the left eyebrow with destruction of hair growth over the scar; (4) laceration in the left temporal area; (5) severance of the supra-orbital nerve causing intermittent severe burning and itching sensations in the forehead area; (6) the continued surfacing from her head and face of small bits of embedded glass; (7) the cracking of the enamel of all six of her upper interior teeth; and (8) fracture of the frontal bone of the forehead.

Following the accident Mrs. Martin spent two days in the hospital, after which she recuperated at home for several months. She was restricted to a liquid diet for approximately three weeks due to the bandages and stitches on her face. She experienced some nausea, dizziness and blurring of vision for a time after the accident but all such symptoms had ceased as of the time of trial. The cracked teeth resulted in some sensitivity. To relieve the roughness of the teeth and prevent her from biting her lips, the injured teeth were filed smooth by her dentist. On two occasions she has undergone plastic surgery to improve her facial scars. In each instance she was hospitalized for two days. The remedial surgery produced good results and the expert testimony indicates that further improvement could be obtained by additional plastic surgery.

By the time of trial, Mrs. Martin, an attractive 24 year old housewife, was able to engage in all normal activities. However, she was still suffering from the irritation of bits of glass occasionally surfacing from her head and face, the crumbling and chipping of her teeth and the burning and itching sensation experienced in her head and forehead due to severance of the su-praorbital nerve. She is now wearing glasses for reading and driving whereas she did not before the accident. Her injured eyelid still droops slightly. She experiences pain and discomfort upon eating. While she has lost no teeth to date, there is still a possibility that she may lose one or more teeth in the future. Mrs. Martin herself was introduced in evidence in the trial court and appeared before us. While we were impressed with the excellent results achieved by her plastic surgery, we noted that her scars are perceptible but not so apparent as to appreciably detract from her physical appearance.

The judgment of the trial court is affirmed, defendants Asplundh and Aetna to pay all costs of these proceedings.

Affirmed.


author: SARTAIN, Judge.

text:
    Robert C. DYSON, Jr., et al., Plaintlffs-Appellees, v. GULF MODULAR CORPORATION et al., Defendants-Appellants.
    No. 10435.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied May 24, 1976.
    Writ Granted July 2, 1976.

      Michael J. Paduda, Jr., and John N. Gallaspy, Bogalusa, for National Homes & O. E. Waters.
    John W. Anthony, Bogalusa, for Robert Dyson, Jr., and others.
    John J. Cooper, New Orleans, for Gulf Modular, John Belcher and Fidelity & Casualty.
    Louis M. Kiefer, Jr., and Ethel H. Cohen, New Orleans, for Washington-St. Tammany Elec. Co-op.
    A. Clayton James, Jr., and Ronald J. Brumfield, Franklinton, for Agri-Trading Corp. & Wayne Engerran.
    Donald H. Lee, Bogalusa, with Mr. Anthony for the Dysons.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   SARTAIN, Judge.

The above entitled cause which bears No. 10,435 on our docket was consolidated with Suit No. 10,436, entitled, Evie Lee Creel Dyson, Individually and as Adminis-tratrix and Natural Tutrix of the Minors, Fred Dyson, Joseph Dyson, Anthony Dyson, Neva Lee Dyson and Norma Gayle Dyson v. John D. Belcher, Jr., Agri-Trad-ing Corporation, Inc., Gulf Modular Corporation, National Homes Corporation, Wayne Engerran, Fidelity & Casualty Co. of New York, and Washington-St. Tammany Electric Cooperative, Inc. These actions were brought by the surviving widow, major and minor children of Robert C. Dyson, Sr. (decedent) who was fatally injured as a result of accidental electrocution on February 25, 1972. We shall assign our reasons for judgment in Suit No. 10,435 and for the same reasons enter separate judgment in Suit No. 10,436. 331 So.2d 549.

On the day of the accident decedent was employed by John D. Belcher, Jr. (Belch-er). Belcher, an independent contractor, was erecting a prefabricated home for Gulf Modular Corporation (Gulf) on a building site owned by Agri-Trading Corporation (Agri-Trading). Gulf had purchased the component parts of the home from National Homes (National), a Texas corporation engaged in the business of manufacturing various types of modular housing units.

Defendant O. E. Waters (Waters) was employed by National as a truck driver and crane operator.

Plaintiff sued each of the above named parties together with Washington-St. Tammany Electrical Cooperative, Inc. (Electrical Cooperative); Wayne Engerran, an employee of Gulf; and Fidelity & Casualty Co. of New York, the liability insurer of Gulf.

Prior to trial on the merits Belcher and his liability insurer were released on their joint motion for summary judgment on the ground that plaintiffs’ exclusive remedy against them was under workmen’s compensation. A similar motion filed by Gulf on the ground that it was the statutory employer of decedent (L.R.S. 23:1061) was referred to the merits.

Numerous reconventional and third party demands were filed by several of the defendants. It is not necessary that we particularize these incidental demands here.

The trial judge, with written reasons assigned, held that the accident was occasioned by the joint negligence of Waters and Belcher and granted judgment in favor of each of the plaintiffs against Waters and his employer, National. He further found that the decedent was not proved guilty of contributory negligence. Judgment was rendered awarding each of the children who were minors at the time of the accident the sum of $7,500.00, each major child was awarded the sum of $5,000.00, and the surviving widow was awarded the sum of $15,000.00. The amount of $1,302.46 was allowed for special damages. The district judge also ruled on Gulf’s motion for summary judgment and held that Gulf was the statutory employer of the decedent and the former’s liability is limited to benefits available under workmen’s compensation. It is from this judgment that Waters and National have appealed. Plaintiffs have answered the appeal and have reasserted their allegations of negligence as originally charged against each of the above named defendants and seek an increase in the amount awarded to each of them respectively.

Waters and National urge in their appeal that the trial judge erred in finding Waters guilty of negligence and, in the alternative, reassert their plea of contributory negligence on the part of the decedent. The remaining defendants ask for affirmation of the trial judge’s decision exonerating them from liability. Additionally, Waters and National strenuously argue that the awards made to plaintiffs are excessive under the circumstances.

Our review of the record satisfies us that the plaintiffs have failed to prove any negligence on the part of Wayne Enger-ran, Agri-Trading Corporation, or Washington-St. Tammany Electrical Cooperative, Inc. Therefore, judgment in favor of these defendants is affirmed.

Pretermitting for the moment the question of Water’s negligence, we turn to the plea of contributory negligence on the part of the decedent. The trial judge in his reasons for judgment, in pertinent part, stated:

“Chaney v. Brupbacher, 242 So.2d 627, (La.App. 4th Cir. 1970) is relied on heavily by the plaintiff. There is one distinguishing feature in the Chaney case in that the electrocuted employee’s widow brought suit against the officers of his corporate employer. In this case there can be no argument that Dyson was the employee of Waters. However, on page 632 in Chaney the court stated as follows:
“ ‘The test for negligence is reasonableness. While it may be true that the reasonable man would wish to avoid the known risk here, an employee is not entirely free to do so. He cannot simply decline to do the work, because he would then subject himself to loss of his job, his means of support for self and family. It would not have helped Chaney to point out the danger to Owens, because Owens already knew it. Nor could Chaney tell Owens how to run the job. It, cannot be fairly said that Chaney elected to work under the dangerous conditions (the danger not being an intrinsic feature of Chaney’s work). Thus as we see the question, it is whether the reasonable laborer (with a wife and three children to feed, clothe and house) would quit his job or expose himself to being fired, without any immediate prospect of another job, rather than work in the presence of a danger which his job did not necessitate and which he had never previously been called on to tolerate. We simply cannot answer that question affirmatively. We believe Chaney’s conduct measured by the reasonable man standard was not negligent, and the defense of contributory negligence therefore falls'.’
“In the recent case of Barnett v. Trinity Universal, 286 So.2d 770 (La.App.2d Cir. 1973) the Court of Appeal followed the earlier Supreme Court decision of Stansbury v. Mayor and Councilmen of Morgan City, 228 La. 880, 84 So.2d 445 (1955) where it stated:
“ ‘Whenever contributory negligence is pleaded it is incumbent upon the party pleading it to prove it by a preponderance of evidence.’
“In Barnett, the Court cited with approval from Lane (sic) v. Louisiana Power and Light Company, 161 So. 29, at 35, as follows:
“ ‘When a person is employed in the presence of a known danger, to constitute corttributory negligence, it must be shown that he voluntarilly (sic) and unnecessarilly (sic) exposed himself to the danger and where there are no eye witnesses to any act of negligence it is presumed that the decedent acted with ordinary care.’
“Although in this case there are witnesses to the accident, none of them could testify clearly that the decedent, Dyson, did, in fact, maneuver the cable rope to the power line. It does appear from the testimony, however, that the electricity arked. (sic)
“However, a review of the facts, when viewed in the light of the above cited jurisprudence leads this Court to the conclusion that the defendants have not proved that Dyson was contributorily negligent.”

However, we note that the above language from Chaney must be prefaced with the following language which is also found in Chaney, 242 So.2d 627, 630:

“Thus, even if we were to assume that the creators of a danger-fraught situation could escape liability where an employee job-obliged to be there should by some foreseeable negligence contribute to his own injury, nevertheless the evidence here persuades us that Chaney did not himself move the cable into the wire. Rather the end of the boom—which no witness was watching at the moment and the crane operator testified he could not see because of the sun—had to have moved atop or sufficiently close to the wire to cause the contact.
“Because we are satisfied the boom moved the cable into the wire, it is not material whether defendants are correct in arguing that Chaney, on his own, decided to use the jib cable rather than the heavyload block-and-tackle cable suspended from the main boom. Use of the latter would have meant its boom end would have been further away from the wire, but there is no evidence to suggest Chaney would not have been equally electrocuted, because the jib cable would still have contacted the wire when the boom moved. The electricity which went, through the whole crane, even its base with a great flash, would equally have coursed through the heavy-load cable through Chaney. But we believe that the crane operator’s definite testimony that the jib line had been being used ought to be accepted over the inconsistent testimony of Carton, whose testimony ranged from using only the jib, to using the heavy-load only to move this particular oversize beam from the truck to the ground, to using only the heavy-load cable previous to the time that Chaney took the jib cable for this one heavy beam.
“Accordingly, the only act we could hold contributory negligence on Chaney’s part was his having worked at all in the unsafe place and under the unsafe conditions his employer supplied." (Emphasis ours)

Viewed in this context we find that Chaney is supported by the following authorities: Bouŕe v. New Orleans Public Service, Inc., 255 So.2d 776 (La.App. 4th, 1971), writs refused, 260 La. 857, 257 So.2d 432 (1972); Calton v. Louisiana Power & Light Company, 222 La. 1063, 64 So.2d 432 (1953); Allien v. Louisiana Power & Light Company, 202 So.2d 704 (La.App., 3rd, 1967), and Layne v. Louisiana Power & Light Company, 161 So. 29 (La.App. 2d, 1935).

In Boure the court concluded that it was the plaintiff’s helper who permitted the hose to come into contact with the line. Plaintiff was found free of contributory negligence even though he was legally charged with knowledge of the existence of the line because the same was apparent to anyone exercising even the most casual observation.

In Calton, though decedent’s heirs were denied recovery on other grounds, the decedent therein was cleared of the charge of contributory negligence because the court found that the operator of the boom-equipped truck had permitted the boom to come into contact with an electrical line prior to the time that said decedent had attempted to remove a pin which would have permitted the lowering of the boom.

In Allien the court held for the surviving heirs of the decedent when it found that the decedent took no part in the raising of a mast which came into contact with an electrically charged line.

In Layne the court found that it was the action of the wind which caused the sheet roofing held by the decedent to come into contact with the electric line.

The above cited authorities stand for the following propositions: It is not negligence per se to work around or near electrically charged lines. An injured party will not be held to be guilty of contributory negligence when that party’s action was not a participating factor in causing the object he is holding or touching to come into contact with an electrically charged line. It follows, however, that if the injured party’s action was a participating factor in causing such contact and the party knew or should have known of the existence of the electrical line, then his action is deemed to be negligent and he is barred from recovery. With these principles in mind, we look to the facts in the instant matter.

Gulf had purchased this particular housing unit from National. It was delivered to the homesite by National in a tractor-trailer vehicle. Waters was met by Wayne Engerran, an employee of Gulf, and directed to a rural area where the house was to be erected by Belcher. When the vehicle arrived at the homesite and before it could be placed in a more desirable location next to the previously constructed slab, the trailer became mired in mud. The trailer was then uncoupled and the tractor moved to a position between the trailer and the slab. In this position the rear portion of the trailer was beneath an electrical transmission line.

The decedent and Belcher then arrived on the scene and a discussion was had between Waters and Belcher and it was mutually decided that rather than get a tractor or bulldozer to move the trailer to a more convenient spot it would be unloaded where it stood. The evidence is clear that Waters, Belcher, Engerran, and the decedent were present during the course of the discussion and that the presence of the electrical line was mentioned. Waters and Belcher testified that they thought the trailer could be satisfactorily unloaded under these conditions. Neither considered that it was a potential hazard. They were primarily concerned with the physical obstacle it presented rather than any danger resulting from its electrical characteristics.

The trailer was to be unloaded with the aid of a crane which was situated on the rear of the tractor just behind the cab. Four outriggers are attached to the tractor and these outriggers when placed in position lend stability to the tractor which acts as a base for the crane. When the boom of the crane is fully extended it reaches an elevation of some thirty-six to forty feet. Attached to the boom is a cable. At the end of the cable is a “headache ball” and beneath this weight is a bridle consisting of two lines with a hook (connector) at the end of each line. These hooks are attached to the straps on the top of each component of the prefabricated home. The components are numbered in accordance with the particular floor plan of the house.

The decedent had been employed, by Belcher for nearly five years and during this period of time they had unloaded literally dozens of these types of homes. Working as a team they would get on top of the trailer. Sometimes only one of them would attach both hooks to the ends of a partition or one would attach one end and the other would secure the remaining end. When these hooks were properly attached either the decedent or Belcher would signal the crane operator to lift the load. It would then be lifted by the crane and placed in its proper position on the slab.

On the morning of the incident, the decedent was the first to climb to the top of the trailer and was followed shortly thereafter by Belcher. One small partition had been removed from the trailer and placed on the slab and Belcher and the decedent were then in the process of removing the second and much larger partition when the accident occurred. The boom had been swung back over the top of the trailer. The decedent had the bridle in his hands. As he handed Belcher either one or both hooks an electrical surge from the transmission line above traversed the cable, fatally injuring the decedent and knocking Belcher from the trailer to the ground.

The major areas of dispute are (1) whether the decedent had been informed or warned of the existence of the transmission line and its dangerous characteristics, (2) whether Waters swung the boom and its dangling cable into the transmission line, and (3) the movement of the decedent at the time of the incident, i.e., whether he pulled the cable into the line.

The decedent was present in the group prior to the unloading when the existence of the transmission line was discussed. He was on top of the trailer when the first partition was successfully removed. On this occasion the cable from the boom was about two and one-half feet from the transmission line. The record reflects that the trailer which was being unloaded was forty-four feet long, eight feet wide and twelve and one-half feet high. The electrical transmission lines were approximately eighteen feet above the ground. Thus these lines were about six to seven feet above the trailer and, as stated above, traversed the rear portion of the trailer. Further, photographs entered into evidence clearly show the location of the trailer and the existence of these lines. Each witness at the scene of the accident testified that he observed the lines and knew of their existence. Accordingly, we must conclude that decedent was either told of their existence or is legally charged with knowledge of their presence.

We are satisfied that at the time the cable came into close proximity with or touched the transmission line the boom was in a stationary position and that Waters was standing next to the controls waiting for either the decedent or Belcher to signal him that the hooks had been attached to the partition and the same was ready to be lifted.

The best evidence with respect to decedent’s position is that he was two to three feet behind Belcher and had completed the process of handing Belcher the hooks when the electrocution occurred. Reason dictates that the cable did not come into contact with the transmission line by virtue of any movement of the boom because if it had the cable would have been energized prior to the time that the decedent took hold of it.

While it is true that none of the witnesses could actually see whether the cable came into physical contact with the transmission line, the evidence permits no other conclusion but that the decedent was bringing the line to Belcher at the time of his fatal injury. If the electricity did in fact arc from the transmission line to the cable, it could not have done so for a distance in excess of one-half inch. This is the unre-butted testimony of the only expert witness to testify in this cause. His testimony is also in accord with the expert testimony in the Cation and Layne cases, above, to the effect that the electrical current therein involved could not have arced a distance greater than “a fraction of an inch” in one instance and three-eighths of an inch in another, in lines carrying 13,800 to 8,000 and 8,000 volts, respectively.

Under the facts and authorities cited above, we are compelled to hold that the action of the decedent in the instant matter was a participating factor in causing the cable from the boom to come in contact with the high voltage line situated above the trailer and that such action on his part constitutes negligence which bars plaintiffs’ recovery.

Having found contributory negligence on the part of the decedent it is not necessary that we address ourselves to plaintiffs’ answer asking for an increase in the amounts awarded them by the trial court.

Accordingly, for the above reasons, the judgment of the district court, insofar as the same is in favor of plaintiffs and against O. E. Waters and National Homes, is reversed and set aside and judgment is rendered herein in favor of O. E. Waters and National Homes and against the plaintiffs dismissing plaintiffs’ claim. In all other respects the judgment appealed is affirmed. Plaintiffs-appellees are cast for all costs of these proceedings.

Affirmed in part, reversed in part and rendered.

      . Shown erroneously in the transcript as Wayne Orgerron.

      . 56 So.2d 862, 863 (La.App.2d 1952).