text:
    Louvinia WILLIAMS v. ALLSTATE INSURANCE COMPANY et al.
    No. 9853.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Jerome Friedman, Metairie, for plaintiff-appellant.
    Drury, Lozes & Curry, William J. Weg-mann, Jr. and Steven M. Lozes, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

In this transit bus-truck collision, for which defendants admitted liability in the trial court, the jury was called upon to determine the issues of (1) causation of injuries to plaintiff, who was a passenger on the bus, and (2) the amount of damages, if any, sustained by plaintiff. The jury’s response to the lone interrogatory — “What amount of damages, if any, do you find for the plaintiff, Louvinia B. Williams?” — was “None”. The judgment following the jury verdict dismissed plaintiff’s suit, and plaintiff appealed.

Plaintiff and the driver were the only two persons on the bus at the time of the accident. The collision occurred when the bus, while stopped for a red light, was struck in the right side by an unoccupied truck which had rolled into the street from a parked position.

Plaintiff testified: The force of the impact shook the bus “up and down”, knocked her under the seat and scattered her groceries about the bus. The driver picked her up and also picked up the groceries because she was “too crippled” from the accident to stoop over. Her leg swelled immediately, so that she couldn’t walk on it, and the driver assisted her in walking and carried her groceries to another bus. She expressed the probable need to consult a doctor, and the driver agreed.

On the other hand, the bus driver (who was an independent witness, since neither he nor his company was sued) testified: He saw the truck moving backward slowly and blew his horn, not knowing it was unoccupied. The truck rolled about ten feet and struck the door of the bus, but he felt no impact from the slight collision. When he turned around immediately after the impact, plaintiff definitely was still in her seat, and he did not recall seeing any groceries. She walked off the bus without his assistance in the same manner as she had walked when she boarded the bus. He did not recall her stating she was injured. He drove the bus to the garage, where the door was put back on the hinge in three to five minutes. The bus had no dents or other damage and was returned to service immediately.

The threshold question facing the jury was whether this collision caused plaintiff to sustain any injuries. The jury’s response to the lone interrogatory compels the conclusion that the jury found plaintiff had not suffered any injuries in this accident.

Plaintiff’s reliance on Robinson v. General Motors Corp., 328 So.2d 751 (La.App. 4th Cir. 1976), is misplaced. In that case the jury in an itemized verdict rendered awards for various items of special damages, and the court held that the jury’s failure to award any general damages (after awarding special damages and thereby obviously finding plaintiff has sustained some injury in the accident) was an error of law. The court noted that the failure did not involve an exercise of discretion as to amount of an award, but constituted a refusal to make any award for this item of damages.

The present case involves a general verdict, in which the jury has refused to award any amount for any item of general or special damages. There is nothing in that verdict to indicate the finding by the jury of a causal connection between the collision and the injuries sued upon by plaintiff. Indeed the only inference that can be drawn from this verdict is that the jury found plaintiff did not sustain any injury in this accident.

The determination of credibility is a function properly allocated to the trial court, whether judge or jury. When that determination is reviewed by an appellate court, reasonable inferences of fact supported by the record should not be disturbed, especially when conflicting testimony is involved.

In the present case the testimony most favorable to the prevailing party casts serious doubt on plaintiff’s statement that she was injured in the accident. Accordingly, there is no manifest error in the jury’s apparent finding on the issue of causation.

- [3] Finally, plaintiff complains the trial judge committed prejudicial error in failing to instruct the jury that it was not necessary to produce every possible witness, but only those sufficient to prove the case. In closing argument defense counsel, pointing out to the jury that plaintiff had stated her landlady saw her swollen ankle right after the accident and was familiar with the extent of her suffering, argued that failure to call the landlady to testify “reflects on the case”. However, the court refused defendants’ request for a special instruction on a presumption to be drawn from this failure, and the refusal of plaintiff’s requested instruction under these circumstances was not prejudicial error.

The judgment is affirmed.

AFFIRMED.

      . See also Roy v. Schneider, 367 So.2d 1314 (La.App. 4th Cir. 1979), decided this day, for a discussion of general or lump sum verdicts and itemized verdicts.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Dr. Julian G. PARKER v. Kathleen SMITH, wife of Dr. Julian G. Parker.
    No. 9806.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    William J. Wegmann, New Orleans, for defendant-appellant.
    Baldwin & Haspel, William E. Wright, Jr., New Orleans, for plaintiff-appellee.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff obtained a judgment of divorce against his wife of 34 years in May, 1972, and was condemned to pay , her alimony in the amount of $675 per month. At the time he was a practicing physician in the field of internal medicine. In April, 1977, he filed a rule to eliminate alimony based on a change in circumstances. From a judgment which reduced the alimony to $100 per month she has appealed seeking an increase and plaintiff has answered the appeal seeking to be relieved of alimony payments entirely.

Plaintiff testified that his health began to fail in 1974 when he was hospitalized with bronchial asthma, tracheal bronchitis and diabetes, and it gradually declined during the ensuing year until he reached the point where he was losing sleep and had to reduce his hours of practice especially in the afternoons when he had customarily made hospital visits to his patients. His poor health combined with increased costs of operating his medical practice led him to retire at age 64 on March 31, 1977. Plaintiff’s gross income in 1976 was almost $50,-000 (net over $30,000) and for the first three months of 1977 gross income was almost $11,000 as compared to $326.90 per month from Social Security after his retirement.

Plaintiff’s testimony that he was seriously disabled from asthma and related respiratory problems was corroborated by the testimony of his second wife and a physician who examined him eight days before the rule was tried.

Defendant contends that he is able to work but discontinued his practice for the sole purpose of avoiding his obligation to pay alimony. In support of this argument she makes much over the fact that no physician advised plaintiff that he should discontinue his practice because of poor health.

This argument does not persuade us to revise what was essentially an evaluation of plaintiff’s credibility. The trial judge was apparently satisfied that plaintiff was motivated to retire because of his poor health and not for the purpose of saving money on alimony.

It was also established that defendant earned over $10,500 as a real estate agent-in 1976 and over $3,000 for the first four months of 1977. This evidence undoubtedly influenced the trial judge.

The jurisprudence is to the effect that alimony awards are within the discretion of the trial court and should not be disturbed on appeal in the absence of a showing of an abuse of discretion. Since we find no such abuse, the judgment appealed from is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Helen IMPOLA v. Will MARTIN (Marter) et al. and Schwegmann Brothers Giant Supermarkets, Inc.
    No. 9813.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Eugene J. Gomes, Jr., New Orleans, for Helen Impola, plaintiff-appellant.
    C. Monk Simons, III, New Orleans, for Schwegmann Bros. Giant Supermarkets, Inc., defendants-appellees.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

This is a suit claiming damages arising from an incident between the plaintiff and certain security guards of Schwegmann Brothers Giant Supermarkets, Inc. The plaintiff, Helen Impola, based her action on assault and battery, unlawful arrest, defamation of character and false imprisonment. After a trial on the merits, the trial judge found in favor of defendant and plaintiff brings this appeal.

The testimony of appellant reconstructs the incident as follows: After paying for her groceries, she left the store and was accosted by a “tall white-headed man” in the parking lot. The man grabbed her by the shoulder and told her that he wanted her to go back into the store. The man then called a “blonde-headed lady” who told her that she was a New Orleans Police Officer. Appellant therefore consented to go back into the store.

Once inside the store, appellant claims that one security guard held her while the other pulled the basket away causing her to fall on her spine. The security guards then took her into an office where she was searched by one of the guards who put his hands in her blouse and pants causing her to fall from a bench and further injure herself.

The testimony of the security guards painted an entirely different picture of the incident. They state that appellant was observed in the store with a jar of vitamins next to her purse and separate from the rest of her groceries. When she checked out the vitamins were not among the items paid for. Appellant was then questioned briefly outside the store by Pat Caligione, the blonde-haired lady and followed the security guard back into the store of her own accord.

Once back inside, appellant began yelling for a lawyer and a policeman and tried to pull the basket down on herself. Two or three of the security guards had their hands on the basket to prevent it from falling and hurting the woman. She was then helped into a security office and the police were notified. While in the office, appellant constantly tried to disrobe in an attempt to show the employees that she did not have the vitamins. She then fainted off of a bench and fell onto the floor.

Appellees also introduced evidence tending to impeach the appellant’s credibility by showing that she deserted the hospital, where she was being treated for her injuries resulting from this incident because they wouldn’t feed her. Hospital records also reflect the fact that appellant stated that she refused to go to physical therapy because they hurt her and were starving her. She stated at the trial that “they nearly killed me”.

In finding for the defendant, the trial judge stated that he did not believe that a security guard improperly searched the defendant by putting his hands into her blouse and pants. He went on to state:

“The Court is convinced that much of the plaintiff’s cause of action (testimony) is of her own making. The matter, if it blew up out of all proportion, was the doing of the plaintiff.
“The Court has had extreme difficulty in believing both the plaintiff and the defense witnesses. It has no way of telling which side told the most truth, or which side fudged, exaggerated or hedged most in presenting the truth.
“Under the circumstances, the Court must give equal weight to both sides, and necessarily conclude that the plaintiff has not carried the burden of proof.”

We agree with the trial judge’s interpretation of the evidence. As appellant points out, the defense witnesses contradict each other on several points, but appellant’s unsubstantiated story, coupled with her later actions, does not carry the burden of proof which a plaintiff must bear to prevail. The trial judge was in a much better position to determine the credibility of the witnesses than an appellate court and we cannot say on the basis of the testimony before us that manifest error was present in the judgment. See Canter v. Koehring, 283 So.2d 716 (La.1973).

It is therefore ordered that the judgment below be affirmed. Costs of this appeal to be paid by the appellant, Helen Impola.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Mrs. Bobbie BURNS, Individually and on behalf of her minor son, William Earl York v. Gregory SALISBURY and Luther Holden.
    No. 9810.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.

      Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff/appellant.
    Emile L. Turner, Jr., New Orleans, for defendants/appellees.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   GULOTTA, Judge.

Plaintiff, appealing from the dismissal of her damage suit for injuries sustained by her fourteen year old minor child in a tractor-truck and bicycle accident, claims the jury erred in failing to find negligence on the part of the defendant truck driver.

The accident occurred in an automobile service station located at the corner of Judge Perez Drive and Perrin Street in St. Bernard Parish. According to the child, William York, he and his twelve year old brother, also riding a bicycle, enroute to a grocery, had ridden through an Exxon Service Station, crossed Perrin Street and went into and through a Shell Station located on another corner of the intersection. They returned by the same route. On the return, while riding his bicycle again, through the Exxon station, William’s bike was either struck by or driven into the right, double in-tandem rear wheels of the truck which had turned right into the service station area from Judge Perez Drive.

Plaintiff contends the jury’s exoneration of the truck driver from negligence is not supported by the evidence and is manifestly erroneous. According to plaintiff, because the truck driver had previously worked at the station, he either knew or should have known that children frequented the service station area. Plaintiff contends, therefore, the driver failed to exercise the high degree of care required when he turned into the station at an excessive rate of speed. We do not agree.

According to the truck driver, while shifting down from second to first gear, and at a speed of eight to ten miles per hour, he executed a right turn into the station. He did not see the bicycle riding children or any other children until after the bicycle had become lodged between the rear wheels of the trailer truck. The injured child testified that he was riding his bicycle through the station about eleven feet from Judge Perez Drive at an approximate speed of five miles per hour. The child stated further that when he reached approximately twenty feet from Perrin Street he saw the truck lights and immediately turned to the right and applied his brakes in an effort to avoid the truck, but was caught between the rear wheels. The testimony of the defendant driver’s brother, who operated the service station and who had witnessed the accident, and the testimony of the injured child’s brother added little if anything to clarify how the accident happened.

Although a higher degree of care is required of a motorist who observes or should have observed children in or near the area, no claim is made nor does the evidence show that the driver was aware, or should have been aware, of the presence of these children as he entered the service station. Assuming that the truck driver entered the station at the speed indicated by him, i. e., eight to ten miles per hour, and traversed eleven feet from Judge Perez Drive and the child entered the station at a speed of approximately five miles per hour and traversed approximately twenty feet into the station from Perrin Street, it appears that the truck and bicycle entered the service station area at about or near the same time. There exists no indication that the bicycle riding children were either loitering or in the station area before the driver entered the station. We cannot say, under the circumstances, that the truck driver’s speed was excessive.

Nevertheless, assuming but not deciding that the tractor driver’s speed was excessive, speed was not the cause in fact of the accident. If the front of the truck had struck the bicycle, perhaps excessive speed would have been a substantial causative factor. However, because the point of impact was on the right side between the rear tires of the truck, we conclude speed was not a cause in fact of the accident.

Accordingly, we find no error in the jury’s exoneration of the truck driver from negligence. The judgment is affirmed.

AFFIRMED.

      . Kelly v. Messina, 318 So.2d 74 (La.App. 4th Cir., 1975); Raphile v. Alexander, 315 So.2d 836 (La.App. 4th Cir., 1975); Mans v. Schouest, 342 So.2d 715 (La.App. 4th Cir., 1977), writs denied, 343 So.2d 1075 (La.1977).

      . Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); State Farm v. South Central Bell, 359 So.2d 1318 (La.App. 4th Cir., 1978); Laird v. State Farm Insurance Co., 290 So.2d 343 (La.App. 4th Cir., 1974), writ denied, 293 So.2d 184 (La.1974).


text:
    Michael A. THOMPSON v. Mary Kiernan THOMPSON and unknown child or children.
    No. 9816.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    James B. Aime, New Ch leans, for plaintiff/ appellee.
    James 0. Manning, Metairie, for defendants/appellants.

      Before GULOTTA, BOUTALL and GARRISON, JJ.
   GULOTTA, Judge.

In this disavowal suit the child, through the appointed curator ad hoc, appeals from the trial court judgment decreeing that plaintiff “is not the father of the minor child, Sophia Rebecca Thompson.” • We affirm.

Michael Thompson and Mary Thompson, the mother of the child, were judicially separated on November 22, 1972. The child was born on January 20, 1976. This disavowal suit was commenced on June 4, 1976 and the parties were divorced on April 4, 1977. According to plaintiff no reconciliation, cohabitation or sexual intercourse took place between the parties subsequent to the date of the judicial separation. The curator, on the other hand, claims that on one occasion (in March or April 1975) the parties engaged in sexual intercourse and that plaintiff is the father of the child.

The curator further claims that a favorable presumption of paternity exists when a child is born within three hundred days of dissolution of the marriage. According to the curator this presumption is set forth in Act 430 of the 1976 Louisiana Legislature and incorporated in LSA-C.C. Article 185. Although the new act was effective on October 1, 1976, the curator claims this Act, procedural or remedial in nature, has retroactive effect and is applicable to the child born on January 20, 1976. The curator argues that the earlier LSA-C.C. Articles 186 and 187 (before the 1976 enactment which created a presumption that a child born more than three hundred days after a judicial separation is not presumed to be a child of the husband) are not applicable. Applying the New Act retroactively, curator claims that the child was born prior to the divorce and the presumption exists that the husband, Michael A. Thompson, is the father of the child.

A determination of whether the 1976 Act is substantive or procedural and whether the Act has retroactive effect is unnecessary in the instant case. Applying either the codal provisions on legitimacy (LSA-C.C. Articles 184 through 192) as amended in 1968, hereinafter referred to as the old law, or applying the 1976 Act, hereinafter referred to as the new law, we reach the same result.

Civil Code Article 188 prior to the enactment of the 1976 Act, provided:

“The legitimacy of the child born three hundred days after the separation from bed and board has been decreed, may be contested, unless it be proved that there had been cohabitation between the husband and wife since such decree, because it is always presumed that the parties have obeyed the sentence of separation. But in case of voluntary separation, cohabitation is always presumed, unless the contrary be proved.”

In Kaufman v. Kaufman, 146 So.2d 199 (La.App. 4th Cir., 1962), we said that a child born more than three hundred days after the judicial separation is not presumed to be the child of the husband unless it can be proved that there had been cohabitation between the husband and wife since the decree. Our brothers in the Second Circuit in Ford v. Ford, 292 So.2d 275, (La.App. 2nd Cir., 1974) stated that the burden of proof of cohabitation following the legal separation is with the wife since the law presumes the parties have not cohabitated since a separation decree. See also, Singley v. Singley, 140 So.2d 546 (La.App. 1st Cir., 1962); Enterkin v. DeVaux, 272 So.2d 784 (La.App. 3rd Cir., 1973).

Under the new law, the 1976 Act, a child born within three hundred days after the dissolution of the marriage is presumed to be the child of the husband. A divorce, and not a judicial separation, dissolves a marriage. LSA-C.C. 159. New Civil Code Article 187 (since the 1976 Act) provides the husband can disavow paternity if he proves by a preponderance of the evidence facts which reasonably indicate that he is not the father.

Under the old law where a child has been born three hundred days after the separation from bed and board, the wife has the burden of showing cohabitation between herself and her husband; however, under the new law where a child has been born within three hundred days of the dissolution of the marriage the husband bears the burden of proving by a preponderance of the evidence that he is not the father. Applying either the old or the revised Civil Code articles we conclude the husband has successfully carried his burden of proof while the wife has failed to carry her burden.

The trial judge concluded, in oral reasons, that plaintiff proved by a preponderance of the evidence and “in fact far beyond the normal concept” that he was not the father of the child. The trial judge simply believed the husband’s testimony that no sexual intercourse occurred between the parties subsequent to the November 22, 1972 judicial separation. He clearly rejected the mother’s testimony of one sexual episode in March or April of 1975.

Plaintiff’s testimony, regarding the March or April, 1975 episode, to a large extent, was corroborated by a witness who stated that she was present at the time of the alleged meeting between the parties in plaintiff’s apartment and during that visit no sexual intercourse took place. This testimony was in contradiction of the mother’s testimony.

Furthermore, other witnesses testified to the strained and unpleasant relationship between the parties from 1972 through 1976. It is also clear from the record that nonpayment of alimony and rules for accrued alimony brought by the wife contributed to the unpleasant atmosphere. Under the circumstances, we cannot say the trial judge erred in accepting plaintiff’s testimony and concluding that he proved by a preponderance of the evidence that he was not the father of the child. Conversely, applying the old law the wife failed to carry the burden of proof of cohabitation. See Ford v. Ford, supra.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . Art. 184. The husband of the mother is presumed to be the father of all children bom or conceived during the marriage.
      Art. 185. A child bom less than three hundred days after the dissolution of the marriage is presumed to have been conceived during the marriage. A child bom three hundred days or more after the dissolution of the marriage is not presumed to be the child of the husband.


author: BEER, Judge.

text:
    Mrs. Virginia C. WEBER v. Mrs. Gladys P. MATHEWS et al.
    No. 9828.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.

      Marianne N. Koorie, New Orleans, for plaintiff-appellant.
    Graffagnino, Perez & Roberts, Donald G. Perez, Kendall R. Moses, Metairie, for defendant-appellee.
    Before REDMANN, STOULIG and BEER, JJ.
   BEER, Judge.

On May 3, 1977, appellant Weber purchased a residence at 456 Glendale Drive in Metairie from appellee Mathews. On March 1, 1978, Weber filed a petition in quanti minoris for reduction of the purchase price, alleging, inter alia:

“IV.
A few days after taking possession of the premises, petitioner began to smell gas around the sides and back of the house; that an inspection of the underground pipes revealed the gas lines and water pipes were so decayed and leaking that they had to be replaced; that the pipes were in such an advanced degree of decay upon being replaced that they must have been rotten prior to the act of sale.
VII.
Petitioner avers that the defendants knew that the pipes were rotten and decayed at the time they sold the residence to petitioner, and, therefore, in addition to a reduction of the purchase price, defendants are liable in damages to petitioner for reasonable attorney’s fees of $750.00, costs and penalties allowed under the law, in addition to the costs of replacing the rotten and decayed gas and water pipes.” (Emphasis ours.)

Appellee filed a peremptory exception of no cause of action on the grounds that 1) the petition acknowledges that the alleged defect was not in existence at the time of the sale, and 2) deterioration through age is not a redhibitory vice where no express warranty was made with regard to the gas lines and water pipes.

The trial court maintained the exception and dismissed the suit without written reasons. Weber devolutively appeals. We reverse.

In considering appellee’s exception, all well-pleaded allegations of the petition are accepted as proven. Caronna v. La. Dept. of Highways, 208 So.2d 430 (La.App.1968), writ ref. 252 La. 165, 210 So.2d 52. Burns v. Genovese, 254 La. 237, 223 So.2d 160 (1969). Ducote v. City of New Orleans, 176 So.2d 198 (La.App.1965). DiFatta v. Williams, 176 So.2d 185 (La.App.1965).

If the judgment of the district court was based on appellee’s first contention, then the judgment is erroneous in view of the clear wording of Paragraphs IV and VII of the petition. If, on the other hand, the exception was sustained on the ground that deterioration through age is not a redhibitory vice upon which an action for reduction in price can be based, we again look to the allegations of the petition above quoted and take note of the affirmative assertion that the underground gas and water pipes were rotten and leaking — not merely in an old and worn condition. A leaking gas or water pipe may, if proven, be a defect sufficient to entitle purchaser to demand a reduction of price. See Hunter v. Wilson, 355 So.2d 39 (La.App. 3rd Cir. 1978). Also note Rodriguez v. Hudson, 79 So.2d 578 (La.App. Orl. Cir. 1955).

Finally, we are in full accord with and adopt the following excerpt from the brief of appellant’s able counsel:

“To be distinguished are cases such as Goldberg v. Oliver, 212 So.2d 277 (La.App. 3rd Cir. 1968) where the roof in question was merely old and worn but was not leaking at the time of purchase. The old and worn roof did not leak and was not defective and therefore not within the purview of the Civil Code articles or redhibitory vices.
But in the case before the Court, the gas and water pipes were leaking, and were defective within the purview of the Civil Code articles on redhibition. The law is well settled that in an action for redhibition a petitioner need only prove the defect and not the cause thereof. Edelman Systems, Inc. v. Capital GMC, 345 So.2d 99 (La.App. 1st Cir. 1977). The cause of the defect is therefore immaterial and could not support a peremptory exception of no cause of action.
Even though the same warranties of fitness may not apply to old and new alike, the thing sold must still be fit for its intended purpose; if not, an action in redhibition will be maintained. Guillory v. Morein Motor Company, Inc., 322 So.2d 375 (La.App. 3rd Cir. 1975). Furthermore, under Louisiana Redhibition Law, the seller is bound by an implied warranty that the thing sold is free of hidden defects and reasonably fit for its intended use. Hob’s Refrigeration & Air Conditioning, Inc. v. Roch [Poche], 304 So.2d 326 ([La.]1974); Rey v. Cuccia, 298 So.2d 840, ([La.]1974).”

Weber may, indeed, have difficulty in proving her allegations, particularly in view of the burden imposed by La.C.C. Article 2530. Even so, she is, on the pleadings, entitled to her day in court.

The judgment of the district court is reversed. The exception is overruled and the case is remanded for trial on the merits. Cost of this appeal is to be paid by appellee.

REVERSED AND REMANDED.


author: REDMANN, Judge.

text:
    Mrs. Theresa OGLESBY et al. v. DONALD M. CLEMENT CONTRACTOR, INC.
    No. 9831.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.

      James S. Quinlivan, Jr., Jefferson, for plaintiffs.
    Harold A. Thomas, Adams & Reese, New Orleans, for defendant Donald M. Clement Contractor, Inc.
    Daniel Lund, Sylvia L. Holder, Montgomery, Barnett, Brown & Read, New Orleans, for defendant Terra Trucks, Inc.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   REDMANN, Judge.

The contractor on a road project and a subcontractor appeal from a judgment against the contractor, with judgment over against the subcontractor for contribution of half, for injuries to an automobile driver who ran into a mound of sand placed across the roadway.

Issues are contributory negligence, quantum, and liability as between contractor and subcontractor.

The roadway, a continuation of the eastward lanes of West Esplanade Avenue in Jefferson Parish from Roosevelt Boulevard to Power Boulevard, had been completed and was to have been inspected for acceptance by the parish on May 4, 1976. While the roadway was still under construction, a comparatively low mound of sand had been placed across West Esplanade, a few feet east of Power, to prevent use of the uncompleted roadway, although much had been dispersed before May 4. There is testimony that wooden barricades were also used. Because of the intended May 4 inspection, the contractor had the sand (and barricades?) removed. The May inspection was postponed. The contractor’s president testified that some Parish employee ordered the placement of a high mound of sand to prevent use of the roadway by the public until accepted, and he ordered the subcontractor to dump sand (and, he said, to place lighted, wooden barricades) across the roadway. The subcontractor did dump the sand but, its president testified, it did not place barricades because it was not asked to.

Meanwhile, two or three nights before running into the sand barricade on May 21, when the roadway presented neither sand nor wooden barricade and thus led drivers to believe that it was open for normal use, plaintiff had entered and passed over the new roadway without incident as a passenger in another automobile. This circumstance supports the trial judge’s conclusion that plaintiff was not contributo-rily negligent in failing to see and stop for the sand barricade.

Perhaps $20,000 (including $2,385 medical expense) is toward the upper rather than the lower limit of the trial judge’s discretion for a broken nose with scarring in a 24-year-old woman, requiring future surgery to straighten the bone and reduce the scar, but we cannot say it transgresses that limit.

The question of liability as between contractor and subcontractor was incorrectly resolved. The subcontractor either had or did not have a contractual obligation towards the contractor to place lighted wooden or similar barricades. If it had such an obligation, it owes the contractor all, rather than half, of the damages its breach of that obligation caused. If it did not have such an obligation, it owes the contractor nothing. We conclude that the contractor did not carry its burden, as third-party plaintiff, to prove such an obligation.

The contractor’s president testified that he considered the replacement of the sand an “extra” not covered by the original contract, yet the contractor relies on language from the original contract (and from an unrelated letter) to oblige the subcontractor “to provide any and all signs, barricades, etc., which may be required to complete its items of work. . . .” The contractor agrees that every item of the subcontractor’s work under that contract had already been completed. Thus the subcontractor did not owe lighted, wooden barricading under the original contract. Considering especially the general impression from the contractor’s president’s testimony that the parish employee complaint that wood barricades were inadequate and insistance on a substantial sand or mud barricade, as well as the subcontractor’s president’s denial of an order for anything beyond the sand and his testimony that they never provided simple road barricades even during the contract, we conclude that the contractor did not prove by a preponderance of the evidence that the subcontractor was obliged towards the contractor to place a warning barricade before the sand.

Judgment on main demand affirmed and on third-party demand reversed at contractor’s cost.


text:
    George TENHAAF and Sandra Sandifer v. WHEELS, INC., Warner Lambert Co., Steve Lusignan and ABC Insurance Company.
    No. 9832.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.

      Powers & Nass, Theodore W. Nass,'New Orleans, Giles J. Duplechin, Gretna, for plaintiffs-appellants.
    Johnston & Duplass, Lawrence J. Du-plass, New Orleans, for defendants-appellants.
    Before REDMANN, STOULIG and BEER, JJ.
   BEER, Judge.

On December 16, 1975, George Tenhaaf, while driving his daughter’s automobile, was struck from the rear by a vehicle driven by Steve Lusignan, an employee of Wheels, Inc. Tenhaaf sued Wheels, Inc. and its insurer, Continental Insurance Company, alleging that he suffered a disc injury as a result of the accident. The trial court awarded Tenhaaf $15,155.68, and Continental has suspensively appealed, alleging errors with respect to issues of injury, causation and quantum. Alternatively, Continental seeks reduction in quantum. Ten-haaf has also appealed, seeking increased damages.

The transcript discloses that Tenhaaf was purposefully evasive throughout the trial. His typical response to important questions on direct and on cross-examination was “I don’t remember off hand.”

For example, Tenhaaf testified that he did not remember experiencing past eom-plaints of neck injury, numbness or pain in the neck area despite the fact that YA records showed that he was treated for cervical spondylosis (tenderness over the cervical spine) in 1974; nor did he remember other accidents in 1974 or earlier in 1975, despite the June 3, 1975, VA record that he had suffered a re-injury (whiplash likely) and was experiencing recurrent pain in the back and shoulders. He denied ever having been a five-month in-patient at the New York Medical Center and could not remember the two myelograms also listed on a 1971 YA hospital report. He claimed that he first experienced neck pain after December of 1975 (the month of the accident at issue). Finally, in direct contravention of clear evidence to the contrary, he denied ever having instituted any other lawsuits (with the exception of one involving a 1974 Mississippi accident).

Louisiana State Trooper Arthur Behlar testified that there were no complaints of personal injury at the scene of this minor accident involving light damage.

Dr. Kenneth Vogel, who saw Tenhaaf more than three weeks later, diagnosed a herniated cervical disc, accident caused, based on Tenhaaf’s history and version of the December 1975 accident. He recommended home administered physical therapy. By April, 1976, Tenhaaf had returned to work selling auto parts but continued complaints resulted in a myelogram being performed on September 29, 1976 by Vogel. This was followed very quickly by a fusion at C-6, C-7 on October 4, 1976. Thereafter, Tenhaaf complained of intermittent left shoulder pain as well as numbness and soreness of the right leg, cervical pain and arm discomfort.

Vogel believed that a 1974 VA hospital diagnosis of cervical spondylosis was completely consistent with x-rays showing degenerative cervical disc disease yet concluded that the December 1975 accident was the genesis of Tenhaaf’s alleged disc problem because he was more susceptible to this injury from an otherwise insignificant trauma. Vogel noted that cervical disc disease may be asymptomatic, yet, with slight trauma, the patient becomes symptomatic. He concluded that a causal relation existed between the accident and the injury when considered in light of Tenhaaf’s history and description of the accident.

Dr. Richard W. Levy examined Tenhaaf approximately six months post-accident (and before surgery). His examination revealed no sign of spinal cord or nerve root injury or disease in the cervical or lumbar regions. However, based on the history given by Tenhaaf, Dr. Levy also was obliged to presume that the neck complaints were related to the December 1975 accident. His December 9, 1977 post-surgery examination revealed mild limitation of neck motion and slight straightening of the cervical curve as a result of the fusion. Based on these results and the fact of surgery, Dr. Levy indicated a 10% partial permanent disability rating of the body as a whole.

Defendants sought to impeach Tenhaaf’s credibility in a number of ways including the introduction of prior lawsuits filed by him; introduction of his deposition in which he testified that he could not remember any previous accidents or back and neck problems; by the testimony of Marie S. McAfee, chief of the VA hospital’s medical information section, who stated that she had submitted Tenhaaf’s VA records to the F.B.I. for investigation of obvious unauthorized additions and alterations; and, most significantly, by repeated reference to the record itself.

In absence of written reasons, we conclude that the trial court apparently did ascribe some causative factor to the minor rear-end collision of December 16, 1975, while, at the same time, being of the view that a substantial part of Tenhaaf’s medical difficulties were not attributable to that event.

We can comprehend this in view of the fact that the record does support the following factual conclusions: 1) a minor accident took place on December 16, 1975, involving a vehicle driven by Tenhaaf; 2) Tenhaaf was seen a little over three weeks thereafter by Dr. Vogel; 3) a fusion was performed by Dr. Vogel on October 4, 1976.

However, this record is replete with instance after instance of Tenhaaf’s essential refusal to answer pertinent and compelling questions. This usually takes the form of, “I don’t remember that” or “I don’t remember off-hand” or, simply, “I don’t know.” Tenhaaf falls far below the minimum of any reasonable standard for veracity and responsiveness to pertinent questions, and we find no support in this record for a conclusion that Tenhaaf is a credible witness in his own behalf and deem it necessary, in these circumstances, to completely disregard his testimony, both as a witness and with respect to the “history” given to Drs. Vogel and Levy.

State Trooper Behlar’s testimony indicates quite categorically that there were no complaints of any injuries at the scene of the incident, yet Tenhaaf has indicated in the histories presented to Drs. Vogel and Levy that he struck his head on the rear-view mirror; his right shoulder on the dashboard; was dazed and disoriented; and suffered severe headaches and shoulder pains. His first contact with any physician was with Vogel — over three weeks later — who he had been seeing as an out-patient because of his complaints emanating from causes completely unrelated to the accident of December 16, 1975.

We conclude that Tenhaaf’s testimony is both unconfirmed and unworthy of belief and that he has failed to carry the burden of proof necessary to show any con-nexity between the very minor accident of December 15, 1975, and the complaints to Vogel of January 8, 1976, and, thus, no causative link between said accident and the ultimate surgery performed by Vogel in October of 1976.

We hasten to observe, in reaching this conclusion, that we are mindful of and responsive to the trial judge’s superior ability to make credibility determinations. However, in this particular case, those aspects of credibility determination, such as demeanor, nervousness, mode of speech, physical characteristics, hesitation, etc., have no bearing on our ultimate determination. For, even giving Tenhaaf the benefit of the doubt with respect thereto, his evasiveness and essential untruthfulness is apparent from the content (or, in this case, ■ the lack of content) of the answers themselves. The number and implication of these evasive answers are more readily apparent as one reads the record, and we realize that the able trial judge did not have the same advantage as we in this regard.

Continental has not seriously challenged the award of $500 to Sandra Sandifer, and that portion of the judgment is affirmed.

The judgment in favor of George Ten-haaf in the amount of $15,155.68 with legal interest and costs is reversed and set aside and Tenhaaf’s suit against Wheels, Inc., et al., is dismissed at his costs, including the expert fees of Drs. Vogel and Levy. Costs of this appeal are taxed against Tenhaaf.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Tenhaaf, under oath, describes the damage to include the entire motor being knocked loose and coming “up through the hood and the radiator.”


author: LEMMON, Judge. BEER, Judge,

text:
    Patricia LYON v. ENTRINGER BAKERIES, INC. and United States Fidelity & Guaranty Insurance Company.
    No. 9837.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.

      Porteous, Toledano, Hainkel, Johnson, James L. Donovan, New Orleans, for defendants-appellants.
    Dalton, Gillen & Roniger, Gregory W. Roniger, Jefferson, for plaintiff-appellee-appellant.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

Defendants have appealed from a judgment awarding plaintiff workmen’s compensation benefits. The only issue raised by defendants on appeal is whether plaintiff was in the course of her employment at the time of the accident. The crucial determination is whether she was on her employer’s premises when the accident occurred.

Plaintiff was employed as a saleslady at a McKenzie’s bakery shop. On the morning of the accident she took a cab to go to work. When they arrived at the destination, the cab stopped at the edge of the street. The area between the street and the building (estimated variously to be a distance of five to twelve feet) was covered by one continuous slab of concrete. Plaintiff opened the cab door, stepped with one foot onto the concrete slab, closed the door, placed the other foot on the concrete, and then fell as she began walking to the door of the building, the fall resulting in a compound fracture of the leg. The spot where she fell was estimated to be two to four feet from the building and about four feet from the cab.

The bakery shop was one of several stores in the block. The paved area between the street and the building was used primarily for parking. McKenzie’s customers parked there “all of the time”, “every day”, and McKenzie’s employees also parked there to deliver merchandise. However, “everyone parked there”, and there was no sign or other indication that the area was reserved for McKenzie’s customers.

Defendant’s lease described the leased property as “18' front on Harrison Avenue”. There was no other evidence as to the ownership of the property between the street and the building or as to who paved that area. The only evidence as to maintenance of the area was that plaintiff occasionally swept the concrete slab.

Plaintiff’s wages began when she reported for work, and the employer did not furnish transportation or pay the cost thereof.

Based on this evidence the trial court concluded the employer had assumed control of the area and utilized it for its own purposes, so that “this area became a part of the premises for compensation purposes”.

The requirement that an accident occur in the course of employment essentially involves a time and place inquiry in determining relationship to employment. Generally an employee who is going to or coming from work is not regarded as within the course of employment. However, once an employee who is going to work has reached the employer’s premises, he is generally deemed to be in the course of employment, even if he has not reached the exact section of the premises where he generally performs his duties. See generally Malone, Louisiana Workmen’s Compensation Law and Practice §§ 169, 171 (1951).

This accident did not occur on the paved street, which is regularly used by all members of the public (in which case it might be argued that only a miniscule percentage of the use was by McKenzie’s customers and employees and that McKenzie’s exercised no control whatsoever). This accident occurred in an area which was used principally for parking by McKenzie’s customers and employees.

The foregoing facts are sufficient to support a conclusion that over a period of time the area where plaintiff fell had become generally regarded as part of the entire area devoted by the employer to the business and was so identified with the business premises as to constitute a part thereof, irrespective of whether the employer owned or leased the particular area. See generally 1 Larson, Workmen’s Compensation § 15.41 (1973) and the cases cited therein. We accordingly affirm the trial court’s conclusion that plaintiff had reached the employer’s premises on her way to work and thus was in the course of her employment at the time of the accident.

The trial court properly denied penalties and attorney’s fee on the basis that a serious legal issue existed as to whether plaintiff’s injury occurred on her employer’s premises. Under the circumstances the denial of compensation was a reasonable exercise of defendants’ right to present a good faith defense.

The judgment is affirmed.

AFFIRMED.

BEER, J., dissents and assigns reasons.

BEER, Judge,

dissenting.

Lyon testified that it was her job to open the bakery at 6:15 a. m. On August 30, 1977, she came to work by taxicab, arriving at approximately 5:45 a. m. The taxi parked adjacent to a concrete paved area which extends from the street itself to the front of the bakery. It had been raining and there was water in what might be described as the gutter which was, in fact, nothing more than the edge of the street adjacent to the concrete area above described. After slamming the cab door, Lyon turned toward the building, took a step and fell.

Mr. Fortunato, the cab driver, testified that he pulled up to the “curb” above described, that Lyon got out, took a step or two and fell.

Thus, it is essentially uncontested that she fell on the concrete which extends from the front of the bakery to the street.

Subsequent to the incident above described but prior to the trial, the cemented area in question was structurally altered. There were no pictures introduced to show the physical characteristics of the site at the time of Lyon’s fall.

Hilda Stubbs, a saleslady at the bakery, testified that at the time of the accident there was a slightly sloped cemented area which extended from the side of the street to the bakery front which was often used for parking. She added that cars sometimes parked on this area with the fronts of the cars so close to the front of the bakery that a passing pedestrian could hardly walk between the parked cars and the front of the bakery.

The lease between Entringer and the owner of the property was introduced into evidence but shed little light on the status of the concrete slab on which the fall occurred.

In written reasons, the trial judge determined that the bakery had “assumed control” over the paved area upon which the fall had taken place, holding that the area “was, in a word, utilized for the purpose of the employer.” He concluded that, “Under the foregoing circumstances this area became a part of the premises for compensation purposes.”

Serean v. Kaiser Aluminum & Chemical Corporation, 277 So.2d 732 (La.App. 4th Cir. 1973), and Huett v. Insurance Company of North America, 329 So.2d 222 (La.App. 4th Cir. 1976), support a judgment in favor of Lyon if the concrete slab on which she fell is, indeed, the bakery’s parking lot or specifically designated parking area. However, appellant vigorously contends that the facts of this case do not meet the requirements of the rule which extends coverage to “off-premises” injuries.

Lyon’s own testimony is clear on the locale of the incident:

“We parked parallel with the sidewalk and I opened the back door and put my right foot on the sidewalk and closed the door, then I turned around and put my left foot and when I swung around I just went down like a spiral and landed. This foot (indicating) was underneath me in a sitting position.”

Her several references to “sidewalk” are obviously to the concrete slab area that extends from the edge of the street to the front of the bakery, and, thus, the ultimate question is whether or not that concrete covered area can fairly be described as “premises” within the applicability of the compensation act.

The record leaves little doubt that the slab area was used for parking by those whose needs brought them to the neighborhood shopping section in which McKenzie’s Bakery was located, but there is no affirmative showing to indicate that this was a parking area reserved — in any way — for McKenzie’s customers or employees or, for that matter, any other individual. Nor is there any affirmative showing of control of the area by McKenzie’s Bakery.

Upon finding that the slab area in question “was the sole approach for entrance into the store and plaintiff used this commonly travelled way in order to reach the building wherein she was employed,” the trial judge concluded that the premises rule applied.

I disagree. That legal conclusion would require us to hold that any roadway being travelled by an employee which led directly to the employer’s premises is “a commonly travelled way ... to reach the building wherein (that individual) was employed.

I believe that the trial court manifestly erred in this legal determination and compounded the error by placing the burden upon the bakery to exculpate itself from an unsupportable presumption that proximity is the same as premises.

Finally, I am obliged to strongly disagree with the majority opinion which states that “[t]his accident occurred in an area which was principally used for parking by McKenzie’s customers and employees” and which concludes “that over a period of time the area where plaintiff fell had become generally regarded as part of the entire area devoted by the employer to the business and was so identified with the business premises as to constitute a part thereof, irrespective of whether the employer owned or leased the particular area.”

I find no such facts nor reach such conclusion from my consideration of the record. Accordingly, I respectfully dissent.

      . Plaintiff’s answer to the appeal also asks that the amended judgment be clarified to award her compensation for total and permanent disability at the rate of $79.87 per week during the period of her disability, not to exceed the maximum statutory limit (and subject to defendants’ right to apply for a modification after six months), plus medical expenses and court costs. The original judgment and amended judgment, read together, clearly and properly grant this relief.


text:
    James J. KAVALARY and Donald M. Kavalary v. Patricia HANSEN wife of and R. C. Hansen and Arcy, Inc.
    No. 9844.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.

      Shushan, Meyer, Jackson & McPherson, Robert P. Chatelain, New Orleans, for plaintiffs/appellees.
    William Noland, New Orleans, for defendant/appellant.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   GULOTTA, Judge.

Stephen Ghergich, Jr., a sub-lessee of a bar and lounge located on the premises 13001 Chef Menteur Hwy., New Orleans, appeals from a judgment of eviction ordering him to vacate the premises.

In seeking to set aside the eviction, sub-lessee (relying on LSA-C.C.P. arts. 4701 and 4702 claims movers in the rule for eviction are neither owners, agents nor lessors and are not the proper parties to bring the eviction proceeding. Ghergich further claims that because neither personal nor domiciliary service of the notice to vacate was made on him, the exception of insufficiency of service of process was erroneously dismissed by the trial judge. According to Ghergich, the premises had been neither abandoned nor closed and his whereabouts were known to mover. Under the circumstances, Ghergich claims tacking of notice on the door of the premises did not constitute proper service of process. LSA-C.C.P. art. 4703.

At the outset before considering the merits we deny plaintiffs’ motion to dismiss the appeal. Plaintiffs claim that because of the untimely filing by appellant Ghergich of a suspensive appeal bond in an increased amount as ordered by the trial judge, this court is without jurisdiction to hear the appeal.

Because a bond in the increased amount as ordered by the trial judge has not been timely filed by appellant, we are compelled to dismiss the suspensive appeal. However, because the costs for this appeal have been paid, the appeal is viable as devolutive. See LSA-C.C.P. arts. 2124 and 2126.

Now turning to a consideration of the merits of the appeal, we find merit in defendant’s exception of lack of procedural capacity. Plaintiffs were not the proper parties to bring the rule for eviction.

LSA-C.C.P. arts. 4701, 4702 and 4703 require that the proper party to bring the eviction proceedings is either the owner, his agent, or the lessor. The allegations in the rule to vacate filed by plaintiffs are that they “were the owners and vendors . .” (emphasis ours.) On the hearing of the rule to vacate plaintiffs sought by instanter amendment to amend the rule to indicate that the Kavalarys, as agents, were acting with full knowledge and consent of the owner, Houston M. Wisenbaker, Jr. The motion to amend was denied. Nevertheless, the trial judge, over the objection of the attorney for Ghergich, permitted plaintiffs the opportunity of showing, through the testimony of Robert C. Lewis, an employee of Wisenbaker, the existence of an agency relationship between the Kavalarys and Wisenbaker. This hearsay testimony is as follows:

Question: “Do you know whether or not for a fact, Mr. Wisenbaker had the Kavalarys act as agents in connection with the Congress Inn property?”
Answer: “Yes, ma’am. I was told that by Mr. Wisenbaker.”

Lewis further testified:

Question: “Are either one of the Kava-larys on the payroll of Mr. Wisenbaker?”
Answer: “I’m sure they are. I really don’t know.*’

No additional evidence was offered to support the agency relationship.

Under the circumstances, we find little difficulty in concluding that plaintiffs have failed to show that they were “specifically authorized” as agents with procedural capacity to enforce the rights of the owner or principal. LSA-C.C.P. art. 694. Plaintiffs’ evidence of an agency relationship is less than clearly established. See Patrick v. Patrick, 230 So.2d 759 (La.App. 2nd Cir. 1970).

We conclude plaintiffs have failed to establish that they are the proper parties to bring the rule for eviction. The trial judge erred when he failed to maintain defendant’s exception of procedural capacity, or of no right of action.

Because of our conclusion it is unnecessary to consider defendant’s claim of insufficiency of service of process.

The judgment ordering defendant, Stephen Ghergich, Jr., to vacate and surrender the possession of the premises located at 13001 Chef Menteur Hwy. is reversed and set aside. Judgment is now rendered dismissing plaintiffs’ rule to vacate, at their cost.

REVERSED AND RENDERED.

      . LSA-C.C.P. Arts. 4701 & 4702 reads as follows:
      Art. 4701. Termination of lease; notice to vacate.
      “When a lessee’s right of occupancy has ceased because of the termination of the lease by expiration of its term, action by the lessor, non-payment of rent, or for any other reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee . . .”
      Art. 4702. Notice to occupant other than tenant to vacate.
      “When an owner of immovable property wishes to evict the occupant therefrom, after the purpose of the occupancy has ceased, the owner, or his agent, shall first cause a written notice to vacate the property to be delivered to the occupant. .
      This notice shall allow the occupant five days from its delivery to vacate the premises.”

      . LSA-C.C.P. Art. 4703 reads as follows:
      Art. 4703. Delivery or service when premises abandoned or closed, or whereabouts of tenant or occupant unknown.
      “If the premises are abandoned or closed, or if the whereabouts of the lessee or occupant is unknown, all notices, process, pleadings, and orders required to be delivered or served on the lessee or occupant under this Title may be attached to a door of the premises, and this shall have the same effect as delivery to, or personal service on, the lessee or occupant.”

      . The trial judge on 15th day of November 1977 ordered a suspensive appeal bond to be posted in the sum of $10,000. This bond was timely filed. Thereafter on October 17, 1978, pursuant to a rule to increase the amount of the suspen-sive appeal bond, the court ordered the appeal bond be increased to $20,000. A bond in the increased amount has not been timely posted.

      . The October 17, 1978 judgment increasing the amount of the bond permitted defendant ten (10) days within which to file the additional security. On November 24, 1978 defendant’s motion for a new trial was denied. A bond in the increased amount had not been filed within ten days, allowed by the trial judge, from October 17, 1978 for the posting of the bond or within four (4) days as provided by LSA-C.C.P. article 5124.

      . The rule to vacate was filed on October 24, 1977 and the property had been sold by the Kavalarys to Wisenbaker on July 1, 1977. Although the sale was dated July 1, the act obviously was not passed until September, 1977.


author: LEMMON, Judge.

text:
    Harry WOOD v. TOTH ALUMINUM CORPORATION.
    No. 9849.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.

      Donald V. Organ, New Orleans, for plaintiff-appellee.
    Gordon, Arata & McCollam, Blake G. Arata, and Richard W. Simmons, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

This is á suit by an employee against his former employer for a stock bonus allegedly due under the employment contract. After trial on the merits the trial court rendered a money judgment which awarded plaintiff the value of the stock at the time specified in the contract for payment of the bonus. Defendant has appealed.

The primary issue is the intention of the parties as to the contract terms relating to the award of the bonus.

I

On November 10, 1975 plaintiff, a consulting engineer, and defendant, a corporation engaged in research and development of processes in the manufacture of aluminum, entered into a one-year employment contract, with a provision for extension for up to two additional years. Plaintiff was to serve as director of engineering development for an annual salary of $40,000.00, payable semi-monthly. The contract also provided for certain fringe benefits, including a bonus at the end of each year or upon termination as follows:

“In addition to your salary, you will be awarded Toth common stock bonus of registered shares to the following extent: “1. At the end of the first year of employment:
“(a) stock at market value of $20,000 due at the end of one year’s employment and calculated at the market value on that date and
“(b) additional stock of up to $20,000 value (same basis of value as in (a) above, the extra amount contingent on your performance in the opinion of the chief executive officer and senior vice president.
“The company would also consider your request for stock options instead of stock bonus contingent on management and Board approval.
“2. At the end of the second and of the third year of employment, for each year, the same condition as for the first year. “Termination: You may terminate this contract at any time upon 60 days written notice to TAC and TAC shall pay compensation earned up to date of termination. The Annual Stock bonus will be paid if notice of termination for cause or resignation occurs within 60 days of the date by which the bonus would be payable under the aforementioned terms of the then current agreement.”

On September 29,1976 defendant notified plaintiff that although his work had been quite satisfactory, the design and installation for which he had been hired was virtually complete, and there was insufficient work left for him to warrant extending the employment contract. After the contract expired by its terms, plaintiff requested delivery of the stock due under the bonus provision. He was told that the stock would be awarded to him on the books of the corporation, but because of federal regulations governing issuance of securities the stock could not be delivered until after registration with the Securities and Exchange Commission (SEC). This suit followed.

II

Defendant’s basic position, at trial and on appeal, is that under federal regulations stock can only be issued after registration or under some exemption from registration, that plaintiff was aware of this fact when he accepted the employment contract, and that both parties therefore intended the stock would not be delivered until time of registration.

In support of its position defendant presented evidence of the corporation’s history and its situation at the time of the execution of the employment contract, contending the evidence was vital to the determination of the intent of the parties. The trial judge properly allowed this parol evidence, not for the purpose of altering the clear terms of the written document, but for the purpose of explaining any ambiguity relating to the “awarding)” of the stock bonus of the “registered shares”.

Defendant’s president testified: Pri- or to plaintiff’s employment, defendant corporation, because of insufficient financial capability, had limited itself to laboratory research of the industrial process under study. When the process was successful in laboratory studies, it was decided in 1975 to build a pilot plant and to attempt to prove the process on a larger scale, in hope of ultimately convincing a financially stable company to underwrite the cost of applying the process to industrial use. Although some corporate stock had been sold earlier in an intrastate offering, the directors of the corporation decided to furnish personally the capital for the project, having been advised by an SEC representative that registration of the stock necessary for public offering was unlikely to be approved as long as the process was a research project. When he hired plaintiff to design and install the pilot plant, he informed him of the limitation on delivery of any stock earned as a bonus. During plaintiff’s term of employment several series of financial negotiations were conducted, but at the time of termination the corporation still had never undertaken stock registration under federal securities law. At time of trial it was not determinable when, if ever, plaintiff’s stock would be delivered.

While defendant’s president pointed out that many officers, directors and employees had been “awarded” stock which has still not been issued, he admitted his own employment contract contained a provision that bonus stock can only be issued pursuant to registration.

On this point the trial court, in oral reasons for judgment, concluded:

“Giving Toth Aluminum the most favorable construction of its constract (sic) with all the explanations made to Mr. Wood at the time, if in fact it was the intent of the parties to this agreement that the issuance of the stock would be contingent on the eventual success of the corporation, it should have said so”.

We agree with the trial judge’s observations. While parol evidence was admissible to show circumstances that might explain ambiguous contract terms and to determine the common intention of the parties for purposes of interpretation under C.C. art. 1945, the evidence which was presented failed to establish that plaintiff consented to defer delivery of the stock until after registration and further failed to show that circumstances existed which justify the conclusion that plaintiff did consent. Indeed, in the absence of a specific contract provision, contrary inferences are more easily drawn from the existing circumstances.

It would have been far simpler for defendant’s president to specify the time of delivery of the stock bonus in the contract than to attempt on several occasions to explain the complex securities regulations which necessitated deferred delivery. Moreover, while permanent employees might reasonably have been expected to consent to a bonus which is essentially contingent upon the eventual success of the corporation, plaintiff was only a short-term employee, hired to design and construct one specific project, and it is not as reasonable to infer that he would leave a consulting business for temporary employment and consent to having a substantial part of his compensation contingent upon circumstances far beyond his control.

We conclude that under the contract plaintiff was entitled to delivery of the stock bonus at the time his employment was terminated.

III

Defendant alternatively contends the trial court erred in awarding a money judgment, rather than merely ordering delivery of freely tradable stock (which defendant asserts it can now obtain by purchase from a shareholder who is willing to sell).

On this point the trial judge observed: “The contract speaks of an award at completion of his first year of common stock valued at $20,000. That has to have some practical meaning. If it was nothing more than an administrative requirement delay that we were speaking of I would say fine, take all the reasonable time necessary, but this obligation — the award cannot mean only an award, it has got to be in anticipation of issuance at some reasonable point. Today Mr. Gordon (defendant’s president) has candidly admitted there is utterly no more prospect for developing approved registration than there has ever been and if the contract is to mean anything it means he’s got to have an award in a money judgment. I would not even order the issuance of stock because that would add nothing to their executory obligation, they cannot award the stock. Through no fault of anyone’s other than the economic exigencies of the situation the corporation is unable to honor its obligation and the only remedy, if there is a remedy, is going to be a money judgment in the sum of $20,000.”

Defendant breached the employment contract by failing to deliver 5,715 shares of stock to plaintiff on November 9, 1976 or within a reasonable time thereafter. The measure of damages due on account of the breach is the amount of loss the creditor has sustained. C.C. art. 1934.

At the time delivery of the stock bonus was due, $20,000.00 in shares of defendant’s common stock was readily convertible to cash, and plaintiff’s loss must be determined in view of that fact. The same situation did not necessarily exist at the time this judgment was rendered (and if it did it would make little difference whether the judgment was one for money or one which ordered delivery of stock).

The basic concept of reparation for damages for breach of contract contemplates that the damaged party should be placed as nearly as possible into the condition he would have been, except for the breach. Under the overall circumstances of this case the only feasible method for the trial court to accomplish this objective was to render a money judgment. We find no error in that course of action.

The judgment is affirmed.

AFFIRMED.

      . Significantly, this record refers to the contract of only one permanent employee (defendant’s president), and that contract did contain a specific restriction that the stock bonus will be issued only upon registration.

      . The figure of 5,715 shares was calculated in plaintiffs petition by dividing $20,000.00 by $3.50, which the petition alleged was the closing bid — asked price on the over-the-counter market on November 9, 1976 (the day plaintiffs contract expired by its terms). Defendant apparently accepted these figures, since it admitted in its answer that plaintiffs 5,715 shares was an obligation of the corporation payable in common stock that had been entered in the company records.

      . The 1976 annual report to the shareholders (introduced by defendant) states the corporation’s common stock was traded in the over-the-counter market and had sales prices in the quarter ending August 31, 1976 which ranged from $3.50 to $5.25. (The report also states that in 1976 there were 8,786,778 shares of issued common stock.) Thus, the record establishes that, at the time delivery was due, $20,-000.00 in shares of defendant’s common stock was readily convertible to cash.


text:
    Robert TILLMAN v. CITY OF NEW ORLEANS and New Orleans Public Service, Inc.
    No. 9850.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Donald A. Hoffman, Robert K. Tracy, New Orleans, Barbara Treuting Casteix, for City of New Orleans.
    James Maher, III, New Orleans, for New Orleans Public Service, Inc.
    David Paul Bains, New Orleans, for plaintiff-appellee.
    Before REDMANN, STOULIG and BEER, JJ.
   BEER, Judge.

Robert Tillman was injured when a New Orleans Public Service, Inc. streetcar, on which he was a passenger, struck a New Orleans Police Department police car at the intersection of St. Charles Avenue and Josephine Street. Tillman sued Public Service and the City of New Orleans for damages. Trial on the merits resulted in judgment against both defendants, in solido, in the amount of $3,407.04 plus interest and costs. Each defendant appeals, contending that the other was solely at fault.

Both the record and the trial court’s written reasons for judgment support the streetcar operator’s version of the facts of the accident which indicates that Lionel Stevens (the streetcar operator) saw the police car’s flashing light out of the corner of his eye immediately before the car turned left across the streetcar tracks. He immediately hit the bell and applied his brakes, but the streetcar was only about five feet from the intersection.

Accepting the operator’s version of the facts as controlling, we consider that the ultimate factual issue before us is whether the streetcar could have avoided the crash even if the operator’s vision had not been somewhat obstructed by standing passengers.

We conclude that the streetcar operator could not have been aware of the turning vehicle until it was too late to avoid the accident because, by the officers’ own admissions, the flashing light wasn’t used until just before the turn was commenced. The streetcar, travelling at 15 m. p. h., could not have been stopped in time, and, thus, the conclusion that the operator’s blocked vision was directly related to his failure to avoid the collision is not supported by the record and is, we conclude, manifestly in error.

Accordingly, that portion of the judgment which casts New Orleans Public Service, Inc. is reversed. That portion of the judgment which casts the City of New Orleans is correct and is affirmed. All parties to this appeal shall bear their own costs.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


text:
    Horatio S. EUSTIS v. Jean-Joseph MOONS.
    No. 9851.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.

      Law Office of Young & Mars, Theodore A. Mars, Jr., New Orleans, for plaintiff-appellee.
    Law Offices of Frederick J. Gisevius, Jr., Frederick J. Gisevius, Jr., New Orleans, for third-party defendant-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, William R. Forrester, Jr., New Orleans, for third-party defendant-plaintiff.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

This suit arose out of a contract entered into on March 11, 1970, between plaintiff, Horatio S. Eustis, and defendant, Jean-Joseph Moons, who were competing life insurance agents. Eustis was employed by George A. Sorensen, Jr., general agent for Connecticut Mutual Life Insurance Co., and Moons was employed by Roland J. Hymel, Jr., general agent for State Mutual Life Assurance Company.

Eustis and Moons had been competing for a large package of insurance to be sold in connection with a pension plan being considered by William B. Coleman Co., Inc., when they decided to write the business jointly in such a way that the commissions would be divided between them. This agreement was made with the full approval of Sorensen and Hymel, and on March 11, 1970, was reduced to a written contract in which Eustis and Moons agreed to divide the commissions equally and to split equally all acceptable expenses incurred in the acquisition and servicing of the business. Sorensen and Hymel were not parties to this agreement although it was witnessed by Sorensen. However, in connection with the agreement Hymel and Sorensen on the same day entered into an agreement whereby they would split all of the general agency commissions which would be payable by their respective companies.

As the pension plan unfolded and numerous life insurance policies were issued on employees of Coleman it developed that William B. Coleman, Jr., on whom a large policy was to be written was a rated risk whose premium amounted to $23,711.55 for a State Mutual policy. It was possible for Hymel to give Eustis a contract as a broker for State Mutual with the result that the names of both agents would be on the policy and the commissions would be paid direct to both. But Eustis agreed to have the policy issued in Moons’ name alone so that Moons would have a chance at membership in the Million Dollar Round Table, a prestigious award for an insurance agent.

By the time Coleman’s policy was issued Eustis had discussed the matter with Soren-sen in detail and the latter felt that some additional assurance should be given that Eustis would receive his share of the forthcoming commissions on this policy. After discussing the matter with Hymel, Sorensen received a letter on September 3, 1970, on the letterhead of State Mutual, “The Roland Hymel, Jr. Agency,” providing as follows:

“As per our discussion in your office regarding the above named case, it is understood and agreed that 50% of the commissions on Mr. Coleman, Jr.’s policy, both first year and renewals are guaranteed by the undersigned; less any expenses so agreed to on my letter dated March 11, 1970.
“This letter will serve as Mr. Eustis’s vested interest.”

The letter was signed by Jean J. Moons and was “witnessed” by Hymel, i. e., signed by him in that capacity.

Moons had entered the life insurance business on July 15, 1969, when he was employed by Hymel under two separate contracts, one entitled “Career Agent’s Agreement” and the other “Career Builder Supplemental Agreement.” The former provided that his compensation would result exclusively from commissions he earned on sales of life insurance, while the latter provided for a guaranteed salary against commissions earned by the employees together with a training allowance. On July 23, 1971, Moons terminated his contract with Hymel and by that time his guarantee under the contract had reached $1500 per month.

Initially the arrangement between Eustis and Moons was carried out without any difficulty and Eustis received $1437 as his share of the commissions on the Coleman policy. However, about July of 1970, Moons advised Eustis that he was charging Eustis for 50% of an accountant’s fee, a coordinator’s fee and special risk research, amounting to a total of $5712.10 of which Eustis’ share would be $2856.05. According to Moons, these expenses were of the type contemplated in the language of the March, 1970, agreement as “acceptable expenses,” but according to Eustis these were not contemplated in the agreement and were absolutely unacceptable to him. His appreciation of acceptable expenses would include such items as lunch for the clients but nothing of the magnitude of the expenses which Moons proposed to charge him.

By the time Moons left Hymel’s employment a total of $23,711.55 of commissions had been paid to Moons by State Mutual on the Coleman policy.

Originally, Eustis brought suit against Moons alone but subsequently joined Hymel and State Mutual, urging that Hymel had made himself a party to the agreement made by Moons and that both State Mutual and Hymel were bound as principals for the amount due him by their agent.

Moons filed a third-party demand against Hymel, claiming renewal commissions on policies he sold during his employment by Hymel and the $5600 which he paid as accountant’s and coordinator’s fees and which he had attempted to deduct from the payments due Eustis. He also claimed $1500 as his final monthly salary for July, 1971, and $387 for the amount remaining in his reserve account with Hymel. Moons also joined State Mutual as a third-party defendant seeking to recover the renewal commissions.

In the judgment of the trial court Eustis was awarded $11,855.77 against Moons and Hymel in solido, subject to a credit for the $1437 which had been paid to Eustis, and $5,000 paid to Eustis by State Mutual in settlement of the case against it. No interest was awarded Eustis under this judgment. On the third-party demand of Moons he was awarded $700 for the balance of the salary due him for July, 1971, together with statutory penalties of $2100 and attorney’s fees of $500. Moons was also awarded $387 against Hymel representing the balance in the escrow account. Moons’ claims for the accountant’s and coordinator’s fees he incurred and the renewal commissions were dismissed.

Prom this judgment Hymel has appealed and Eustis and Moons have answered the appeal.

The first issue to be considered is the liability of Hymel to Eustis on the main demand. In resolving that issue against Hymel the trial judge based his judgment on the letter from Moons to Sorensen dated September 3, 1970, and an inter-office memorandum by Hymel to Moons on July 13, 1971. The latter inter-office memorandum was written just ten days prior to the date of the termination of Moons’ employment by Hymel and consisted of five one-sentence items addressed to Hymel, pertaining to such things as a meeting which Moons evidently missed and the cleaning of his office. The message did contain as Item No. 2, the following: “The debt owed to the Connecticut Mutual Agent is my debt. They can call me for this.”

In his reply to Moons, Hymel answered Item No. 2 as follows:

“The debt owed to the Connecticut Mutual Agent is also my debt. If you recall, I was a party to the contract. If I were not a party to the contract, I would not bring this matter to your attention.”

In measuring the effect of Hymel’s memorandum of July, 1971, it must be understood that this memorandum cannot provide the foundation for any liability by Hymel in favor of Eustis. Eustis’ claim is based on a contract entered into fifteen months previously and by the time the memorandum was written that claim had reached full maturity. As to the other exhibit on which the trial judge based his judgment against Hymel, this letter of September 3, 1970, was written by Moons to Sorensen and Hy-mel’s signature is on the letter in the capacity of a witness. The only foundation for any liability to Eustis for the commissions is the March, 1970, agreement, the only parties to which were Eustis and Moons, and which does not purport to make Hymel a party. All of the commission was paid to Moons. Hymel got no part of the commission whatsoever.

We have concluded that Hymel did not become obligated to Eustis by virtue of the contract of March 11, 1970, because he was not a party to same. He did not make himself a party to that contract in the letter of September 3, 1970, because he signed that letter only in the capacity of a witness. We are unable to perceive a legal basis for liability by Hymel to Eustis because of the memorandum Hymel wrote in July, 1971, to Moons. Since there was no contractual relationship between Eustis and Hymel prior to the writing of this memorandum which would provide a basis for Hymel’s liability Eustis must show that some new contract was entered into between Eustis and Hymel by virtue of this memorandum. Eustis was not a party to this memorandum and there is no evidence whatsoever to show that any negotiations or contact between Eustis and Hymel led to Hymel’s writing this memorandum to Moons. For Hymel to become liable to Eustis for a sum in excess of $10,000 there must be some consideration, and this record is devoid of any showing of consideration for such a contract.

We have considered the possibility of Hy-mel’s liability to Eustis on the basis of suretyship principles but the letter of September, 1970, falls far short of the requirement that suretyship be expressed, LSA— C.C. Art. 3039. Far from being expressed it ostensibly contains Hymel’s signature only in the capacity of a witness to the signature of Moons.

We have concluded that the judgment in favor of Eustis on the main demand against Hymel is not supported by the facts or the law and will be reversed.

Returning to Hymel’s appeal from the judgment in favor of Moons, it is Hy-mel’s contention that Moons was not an employee of Hymel but rather an agent of State Mutual. In support of this argument Hymel relies principally on the manner in which Moons received his compensation. The evidence shows that all of the commissions earned by Hymel’s agents were sent in one check by State Mutual to Hymel but the disbursement of these commissions to the individual agents were made by a “bonded cashier” to the agents based on a computer printout provided the cashier by State Mutual. These funds were never co-mingled with Hymel’s funds and statements which accompanied the checks received by Moons and the other agents were prepared by State Mutual. No taxes and Social Security were withheld from these agents’ checks by Hymel. These circumstances applied to the agents in general, including Moons who was a trainee working under the special Career Builder Supplemental Agreement.

However, it seems clear that as a trainee Moons was subject to Hymel’s supervision. Hymel retained the right to hire and fire. In any event, the Career Builder Supplemental Agreement contains the following provision which seems to settle the question:

“The Agent [Moons] further understands that during the salary period of this agreement as described in this Part I, the Agent will be considered an employee of the General Agent [Hymel] and this employment will be subject to such relationship.”

In view of this language in his own contract Hymel can hardly be heard to deny that Moons was his employee.

The trial court found and the evidence supports the finding that Moons was due a balance of $700 on his salary when he resigned. Moons testified that he did not receive either payment of $750 during the month of July. Hymel admitted that he did not pay the second $750 because he had advanced to Moons on his personal account the sum of $800 in July, 1969, and June, 1970, so that he arranged for the final check which was originally payable to Moons by State Mutual to be paid to him. Hymel did not deny that the first check of $750 payable on July 15 to Moons was not paid to him but merely surmised that he must have written a check to Moons for this amount. A check dated July 15 for $715.19 and one dated July 30 for $750, both drawn by State Mutual for Moons’ account were payable to and negotiated by Hymel. This evidence was sufficient to support the trial judge’s conclusion that Moons was due another $700. Similar evidence also established that a balance of $387 in Moons’ escrow account was never paid to him by Hymel.

The final question to be resolved in connection with the judgment against Hy-mel on the third-party demand of Moons concerns the imposition of the penalties and attorney’s fees under the provisions of R.S. 23:631 and 632. In Rubenstein Bros. v. LaForte, 320 So.2d 303 (La.App. 4th Cir. 1975), this court reiterated the jurisprudence to the effect that the statute prescribing penalties for unpaid wages is a penal statute which must be strictly construed and yields to equitable defenses. We distinguished between the conditions necessary for the application of the penalty as opposed to attorney’s fees and held that even though there was an equitable basis for the disallowance of the penalty reasonable attorney’s fees were due under R.S. 23:632 simply because the employee filed a well founded suit for his unpaid wages. We reach the same conclusion in this case. Moons is clearly entitled to attorney’s fees since his suit for wages is well founded, but we do not agree with the trial court that the circumstances of this case did not provide an equitable basis for Hymel to withhold payment of the $700 claimed by Moons.

As a result of the breach of contract by Moons, Hymel found himself being sued for over $10,000. The only basis on which Hy-mel could conceivably be cast in judgment in favor of Eustis was on the theory that Hymel had made himself surety for Moons’ debt since Hymel was not a party to the original contract between Moons and Eus-tis. The trial judge apparently applied suretyship principles since his judgment was based on two documents which were signed by Hymel after the contract between Moons and Eustis had already been made. If Hymel was in the past or is in the future made to pay Moons’ debt to Eustis he becomes subrogated to the rights of Eus-tis and has a valid claim against Moons. It would hardly be equitable to require that Hymel pay Moons $700 and then at some future date be required to chase after Moons for an amount in excess of the $10,-000 for which he might be cast in judgment in favor of Eustis. Under these circumstances and considering the jurisprudence we have concluded that Moons is not entitled to statutory penalties, and that part of the judgment on the third-party demand of Moons will be reversed.

We turn next to the answer to the appeal filed by Moons and his contention that he is entitled to a judgment against Hymel for accounting and coordinating fees in the amount of $5600 and for renewal commissions accruing after the date his employment was terminated. With respect to the fees, when Moons was negotiating the contract with Coleman he utilized the services of a certified public accountant and of Estate and Pension Planning, Inc. a company owned by Hymel. There is no dispute that Moons paid the fees totaling $5600 and ultimately his claim for recovery of this item against Hymel was based on his own testimony that Hymel had agreed to pay these amounts. This testimony was flatly contradicted by Hymel, and in the final analysis the question was resolved by the trial judge on credibility in favor of Hymel as opposed to Moons. On appeal, there is no basis for us to do anything but affirm the trial judge on this issue.

Finally, Moons’ claim for renewal commissions is settled against him by the Career Builder Supplemental Agreement which provides under “termination” as follows:

“In the event of the termination of this Supplemental Career Builder Agreement for any reason other than the death of the Agent or the successful completion of this agreement, no further payment of any kind shall be made, any provisions in the Career Agent’s Agreement to the contrary notwithstanding . . . ”

The trial judge held that these provisions precluded Moons from recovering this item and we agree with that conclusion.

Eustis answered the appeal because no interest was awarded him under the judgment. We have concluded that his position has merit and accordingly his judgment against Moons will be amended to include legal interest from date of judicial demand until paid.

Accordingly, the judgment in favor of Horatio S. Eustis and against Roland J. Hymel, Jr. is reversed and set aside, and there is judgment in favor of Roland J. Hymel, Jr., dismissing the claim of Horatio S. Eustis at his cost.

The judgment in favor of Horatio S. Eus-tis and against Jean-Joseph Moons is affirmed but is amended to include legal interest from date of judicial demand until paid.

The judgment on the third-party demand in favor of Jean-Joseph Moons against Roland J. Hymel, Jr. in the sum of $700, together with statutory penalties and attorney’s fees, is amended so as to delete statutory penalties in the amount of $2100, and the judgment in favor of Jean-Joseph Moons against Roland J. Hymel, Jr., in the sum of $387, with legal interest from date of judicial demand until paid, is affirmed.

The judgment in favor of State Mutual Life Assurance Company of America against Jean-Joseph Moons, dismissing his third-party complaint, is affirmed. All costs of this appeal are to be paid by Jean-Joseph Moons.

AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART AND RENDERED.

      . The record is devoid of any evidence of detrimental action or inaction by Moons in reliance on this statement, which might conceivably form the basis for estoppel.

      . Moons’ contention that he was no longer under the Supplemental Career Builder Agreement for purposes of the renewal commissions is directly contrary to his contention that he came under that agreement in order to qualify as an employee and thus be entitled to penalties and attorney’s fees.