author: GULOTTA, Judge.

text:
    PEOPLE’S NATIONAL BANK OF NEW IBERIA v. Henry A. SMITH, Jr.
    No. 9021.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Leon J. Minvielle, III, New Iberia, for plaintiff-appellee.
    John L. Diasselliss, III, LaPlace, for defendant-appellant.
    Before GULOTTA, BEER and GAR-SAUD, JJ.
   GULOTTA, Judge.

This matter involves a suit on a promissory note. The issues stipulated between the parties are as follows:

1) Whether the interest charged by plaintiff is usurious;
2) Whether plaintiff can recover attorney’s fees in its suit against defendant on the note;
3) Whether plaintiff can collect 25% attorney’s fees stipulated in the note.

Suit was brought for a default in payment on a $215,000.00 note dated September 22, 1975 payable to the order of the plaintiff bank 60 days after date and bearing 8% interest from date of maturity (November 22, 1975).

The note was a renewal of an earlier loan in the sum of $215,000.00. On August 8, 1974, defendant executed a note in favor of plaintiff in the sum of $224,675.00 payable in six months and providing for 8% interest from maturity. The plaintiff bank issued to defendant a certified check in the sum of $215,000.00. The note was not paid at maturity (February 8, 1975) and on March 20, 1975, the loan was renewed. A new note in the sum of $224,675.00 was signed and defendant paid interest in the sum of $11,-272.69. The renewal note was payable in six months and provided for 8% interest from date of maturity (September 20, 1975).

On September 22, 1975, the loan was renewed by the execution of the $215,000.00 note, the subject of this suit. On the same date, defendant paid interest totalling the sum of $13,258.33 which included $9,675.00 for the prior six-month period (March 20, 1975 — September 22, 1975) and an additional $3,583.33 interest (prepaid interest from September 22, 1975 to November 22, 1975). The vice president of the plaintiff bank testified that this prepaid interest amounted to approximately 10% per annum. No amount was paid by defendant on the principal.

The trial judge rendered judgment in favor of plaintiff for the amount of the principal and interest owed but rejected plaintiff’s claim for stipulated attorney’s fees. Defendant appeals from that part of the judgment which awards interest to plaintiff. Citing LSA -R.S. 9:3501, defendant claims that the 10% capitalized interest payment in the sum of $3,583.33 is in excess of the maximum interest amount allowable (8%) under LSA -C.C. art. 2924 and is therefore usurious. Defendant claims that plaintiff has forfeited entitlement to any interest under LSA -R.S. 9:3501.

Plaintiff, in answer to the appeal, claims error on the part of the trial judge in failing to award judgment against defendant for the 25% attorney’s fees stipulated in the note.

USURIOUS INTEREST

We find no merit to defendant’s argument that the $3,853.33 prepaid interest payment made on September 22 is usurious. Paragraph 7 of LSA C.C. art. 2924 provides, among other things, that a promissory note may include “a greater rate of interest or discount than eight percent per annum; provided such obligation shall not bear more than eight percent per annum after maturity until paid. . . . ” The Louisiana Supreme Court in General Securities Co. v. Jumonvilie, 216 La. 681, 44 So.2d 702 (1950) was confronted with a note discounted at 11% of its face value providing for 8% from date of maturity (as in our case). In holding that the note did not include usurious interest, the court said:

“The note sued on clearly comes within the above exception [Paragraph 7, LSA - C.C. art. 2924], and since it does not bear more than 8% interest after maturity it cannot be said to carry usurious interest. # % ü: t)

See also Karmgard v. Southland Mortgage and Title Company, 341 So.2d 1109 (La.1977); Paulat v. Pirello, 353 So.2d 1307 (La.1977).

Defendant contends, however, that in those cases where discounted, capitalized or prepaid interest in excess of the 8% maximum has not been held to be usurious interest, the amount of the discounted interest has been included in the face amount of the note. Because the discounted interest in our case, i. e., the $3,853.33, was not included in the face amount of the note, defendant contends the discounted interest is usurious. Defendant relies on the language of the Supreme Court in Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.1973), stating that recovery of discounted or capitalized interest in excess of the maximum amount is allowable when included within the face amount of the note.

It is true, as pointed out by defendant, that the Supreme Court makes reference to capitalized interest included within the face amount of the note; nevertheless, we have not been cited, nor have we found, any cases which specifically hold that the discounted interest is usurious under all circumstances if not included in the face value of the note.

A significant factual distinction exists between the cited cases and our case. In the Thrift Funds case, the Supreme Court was confronted with a $650.00 loan for which the debtor signed a note for the amount of $1,152.00 payable in 48 installments. The note included hidden charges included among which were “late charges”. Extension fees were provided for to be paid by the debtor. The Supreme Court, in affirming decisions of the trial and appellate courts, concluded that the late or default charges were usurious and prohibited by law. In the Thrift Funds case in referring to the late charges, the court said:

“ * * * They are just as clearly illegal and usurious interest, because collected at a rate far in excess of the 8% per annum from ‘maturity’ . . . .”

Clearly late fees which are chargeable after maturity when added to the maximum interest provided by law constitute usurious interest. This, in effect, as we view it, is the import of the holding in the Thrift Funds case. Clearly this case is factually distinguishable from our case.

In Karmgard v. Southland Mortgage and Title Company, supra, the Louisiana Supreme Court found that interest payments, paid monthly, in excess of the amount borrowed ($35,000.00) for which a note was executed in the sum of $41,300.00 including the capitalized interest were usurious. The court concluded that the monthly payments totalled an amount in excess of the amount stated in the note which included prepaid capital interest ($41,300.00). In our case the principal amount of the loan was $215,-000.00. The prepaid capitalized interest amounted to $3,583.33. Although the note was not in the sum of $218,583.33 (which would have included on its face the principal and prepaid capitalized interest), the debtor prepaid the interest on the date the note was executed and the face amount on the note properly included only the principal amount, i. e., $215,000.00. The debtor in the instant case, unlike in Karmgard, did not pay capitalized interest plus an additional amount in excess of the principal and capitalized interest but prepaid only the stipulated interest before maturity. As a consequence, the note properly included on its face only the principal owed.

We do not find the decisions in the Clasen case, supra, and the Williams case, supra, cited by defendant, to be inconsistent with the conclusions reached in the instant case.

We recognize that the aforementioned cases construing LSA-C.C. art. 2924 make reference to capitalized interest included within the face amount of the note. However, to find usury in our case because the face of the note did not include capitalized interest plus principal would lead to an untenable result. The debtor, having paid the agreed-upon interest in advance at the time of executing the $215,000.00 note, now complains that the note should have been made in the sum of $218,583.33 rather than the principal amount only of $215,000.00. We find no merit to this contention. If, after having paid the interest in advance, the note had included, in addition to principal, the capitalized interest, defendant indeed would have cause for complaint. Such is not the case here.

Under the circumstances, we conclude the interest charge is not usurious.

ATTORNEY’S FEES

The trial judge “denied” plaintiff’s request for the stipulated 25% attorney’s fees. We find no difficulty in concluding that plaintiff is entitled to an award for attorney’s fees; however, more perplexing is the problem of the amount of the attorney’s fees to be awarded. Our dilemma is caused by an awareness of the well settled jurisprudence that the payee of a note is entitled to recover attorney’s fees as stipulated in the note. See Foundation Finance Co. v. Robbins, 179 La. 259, 153 So. 833 (1934); General Securities Co. v. Jumonville, supra; Hancock Bank v. Alexander, 256 La. 643, 237 So.2d 669 (1970).

If we were to apply those decisions, our answer would be relatively simple by awarding the stipulated attorney’s fees. However, the amount of the fees is in excess of $53,000.00. Although we recognize the jurisprudence relating to stipulated attorney’s fees, we cannot conclude that those cases contemplated an award for the excessive amount of fees in this case.

A fee of over $53,000.00 to collect this note is “in excess of a reasonable fee”. In this instance, the attorney filed a two-page petition, a one-page answer to a recon-ventional demand, a one-page answer to an exception, an argument on the exception, a two-page memorandum in relation to the exception, a motion for summary judgment and a six-page memorandum in support of the motion for summary judgment. He participated in a trial which consisted of fifty pages of transcript; and he filed a four-page post-trial memorandum. He also participated in a thirteen-page deposition. Although the attorney diligently pursued this claim for his client, as noted above, nevertheless, we believe that the fee here violates the specific provisions of the Code of Professional Responsibility, and is against public policy.

The attorney himself, in a letter dated about three weeks prior to filing suit, addressed to the debtor, stated:

“Accordingly, demand is made upon you herewith for payment of this note in full not later than December 5, 1975. This includes the principal amount of $215,000, and interest of $621.11 if payment is received by December 5, 1975, I will accept one-half of 1% of the total of principal and interest due as a minimal attorney fee for payment within the allotted time. The attorney fee would thus be $1078.10.”

The stipulated 25% attorney’s fees are simply not justified and are excessive in the instant case.

Although judicial economy suggests that a reasonable amount of attorney’s fees be assessed by this court, we are not in a position to do so. We deem it more appropriate to remand the matter to the trial court solely for the purpose of hearing evidence on the amount of attorney’s fees to be awarded. Consistent with the above, that part of the judgment in favor of plaintiff in the sum of $215,000.00 plus 8% interest computed from November 22, 1975 until paid is affirmed. That part of the judgment denying attorney’s fees is reversed. The matter is now remanded solely for a hearing and determination of the amount of the attorney’s fees to be awarded to plaintiff.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . The interest paid is computed as follows: $9,675.00 for the first six-month period (which according to the vice president of the plaintiff bank amounts to 9% capitalized, discounted or prepaid interest from the date of the note to the date of maturity) and $1,597.69 (which is 8% interest from date of maturity, February 8, 1975 to date of renewal, March 20, 1975).

      . LSA -R.S. 9:3501 provides:
      § 3501. Forfeiture of interest
      “Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted.”

      . Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.1973); Karmgard v. Southland Mortgage and Title Company, 331 So.2d 118 (La.App. 4th Cir. 1976), reversed by the Louisiana Supreme Court at 341 So.2d 1109 (La.1977); Clasen v. Excel Finance Causeway, Inc., 170 So.2d 924 (La.App. 4th Cir. 1965), writ refused, 247 La. 619, 172 So.2d 702 (1965); Williams v. Alphonse Mortgage Co., 144 So.2d 600 (La.App. 4th Cir. 1962).

      . See Code of Professional Responsibility, DR 2-106, Fees for Legal Services, which, in pertinent part, states:
      “(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
      (B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
      (1)The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client.
      (7) The experience, reputation and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.”

      . See Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).


source: Caselaw Access Project

author: DeSONIER, Judge. REDMANN, Judge,

license: Public Domain

text:
    Clarence NIEMANN v. TRAVELERS INSURANCE COMPANY.
    No. 9029.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      Charles A. Verderame, New Orleans, for plaintiff-appellant.
    James J. Morse and Grayson H. Brown, New Orleans, for defendant-appellee.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   DeSONIER, Judge.

Plaintiff, Clarence Niemann, filed suit against Travelers Insurance Company under a contract of uninsured motorist insurance resulting from an injury sustained in an automobile collision occurring on July 8, 1975 in New Orleans. Plaintiff was a guest passenger in a vehicle owned by A. J. Junda and insured by defendant, Travelers Insurance Company. The other vehicle involved was driven by one James L. Warmack and insured by State Farm Insurance Company.

Subsequent to the accident, plaintiff compromised his claim against Warmack and State Farm for $9,750, which was $250 less than State Farm’s $10,000 policy limit. Plaintiff executed a release in favor of Warmack and State Farm.

Subsequently, plaintiff brought the present suit against Travelers based on the uninsured motorist coverage afforded by Junda’s policy. Plaintiff based his suit on the allegation that the Warmack vehicle was underinsured and thereby uninsured within the provisions of R.S. 22:1406 D, in that plaintiff’s damages exceeded State Farm’s $10,000 policy limit.

Travelers answered and filed a third party action against State Farm, seeking indemnification for the difference between the amount paid by State Farm and the $10,000 policy limit. State Farm filed an exception based on the release executed by plaintiff in its favor, and the court granted judgment dismissing Travelers third party action against State Farm.

Travelers then filed a motion for summary judgment seeking to dismiss plaintiff’s claim on the basis that his release of War-mack and State Farm was executed without Travelers’ consent and substantially impeded Travelers’ rights of subrogation against the underinsured motorist and its carrier.

For the purpose of Travelers’ motion for summary judgment, the parties stipulated the release by plaintiff, Niemann, in favor of Warmack and State Farm, the lack of consent by Travelers to the release and compromise, and the existence and content of the insurance policy issued by Travelers in favor of Junda.

Based on the release and Travelers’ policy, the trial judge maintained Travelers’ motion for summary judgment, and plaintiff has appealed. The reason for the trial court’s ruling appears to be that plaintiff violated the “consent to settle” clause of Travelers’ policy, by which Travelers reserved the right to withhold consent for a person claiming under its uninsured motorist coverage to settle with the third party tort feasor to preserve Travelers’ rights of subrogation against the uninsured or unde-rinsured motorist. In the present case, Travelers’ policy specifically excluded from coverage bodily injury to an insured with respect to which the insured makes any settlement with any person who may be liable for the injuries without Travelers’ consent.

Plaintiff argues the “consent to settle” clause is invalid and any prejudice to the subrogation rights of the uninsured motorist insurer from a non-consented settlement is not a basis for denial of plaintiff’s suit against the uninsured motorist carrier under the facts of this case.

Plaintiff is correct in that the Supreme Court refused to enforce a “consent to set-tie” clause in the case of Hebert v. Green. However, the Supreme Court’s holding has limited effect since the uninsured motorist carrier was not prejudiced in any way by plaintiff’s settlement under the peculiar facts of the case.

The Supreme Court in strong dictum indicated the best interest of the public would be protected by allowing an injured party to settle in violation of the “consent to settle” clause without interference from an insurance company or its claims representative. Since this language is clearly dictum, it does not justify such a holding by this court.

This conclusion is reinforced by the decisions of other courts. For example, in Gauthreaux v. Travelers Ins. Co., it was held the plaintiff could not recover against his uninsured motorist carrier when his settlement with the uninsured motorist destroyed the insurer’s right to reimbursement or sub-rogation.

Plaintiff’s second argument is that under the facts of the present case the uninsured motorist carrier is not prejudiced by plaintiff’s settlement with Warmaek and State Farm. Plaintiff argues that if he should recover from Travelers, then Travelers would be entitled to a credit against the judgment for the $10,000 policy limit through State Farm’s primary coverage. This argument is based on R.S. 22:1406 D(4) which provides:

“(4) In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.” R.S. 22:1406 D (4).

The quoted statute does not create an express right of subrogation in favor of the uninsured motorist carrier, but instead provides for reimbursement from the proceeds of any settlement or judgment resulting from the exercise of rights of recovery of the injured person. While not expressly stated, plaintiff’s argument is reminiscent of the procedure under the third party provisions of the Louisiana Workmen’s Compensation Statute by which a compensation carrier is entitled to credit against its liability to an injured worker to the extent of tort damages recovered from a third party by the injured worker.

The defect in plaintiff’s argument, however, revolves around the assumption that the uninsured motorist carrier could only recover the amounts of the limits of liability of the policy issued in favor of the underinsured motorist. As a matter of practice, the high percentage of uninsured motorist cases fall within this framework. However, the uninsured motorist carrier is entitled, under the provisions of R.S. 22:1406 D (4), quoted above, to a clear and unobstructed attempt to recover all sums expended by it not only from the underinsured motorist’s carrier to the extent of its limits of liability but also from the underin-sured motorist himself. There seems to be no justification for the courts to allow a plaintiff to settle with an uninsured or underinsured motorist and thereby limit the rights of recovery of the uninsured motorist carrier against, whom he also makes claim. Such a result would deprive the uninsured motorist of a right granted by statute, and it is the province of the legislature and not the courts to deprive it of such right. We therefore conclude plaintiff excluded his injury from coverage under Travelers’ uninsured motorist provision by settling with Warmack and State Farm in contravention of the “consent to settle” clause of Travelers’ policy.

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

AFFIRMED.

ON APPLICATION FOR REHEARING

REDMANN, Judge,

concurring in refusing rehearing.

Whitten v. Empire F. and M. Ins. Co., La.App. 2 Cir. 1977, 353 So.2d 1071, factually similar to our case, may have correctly decided what it referred to as “the issue on appeal”, 353 So.2d at 1076, but it does not decide the issue we deem decisive.

      . La., 311 So.2d 223.

      . The Supreme Court reasoned the Uninsured Motorist Statute only gave the uninsured motorist carrier a right over against the uninsured motorist and not against an insured motorist. Consequently, the uninsured motorist carrier was not prejudiced by a settlement between plaintiff and an insured motorist since the uninsured motorist carrier retained its right to recover over against the uninsured motorist.

      . La.App., 348 So.2d 737.

      . See R.S. 23:1101, and Malone, Louisiana Workmen’s Compensation, § 368.


author: REDMANN, Judge.

text:
    Louis C. PHILIPS v. Paul C. CROMER.
    No. 9056.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      George O’Dowd, New Orleans, for plaintiff-appellant.
    Nathan T. Gisclair, Jr., Montgomery, Barnett, Brown & Read, New Orleans, for defendant-appellee.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   REDMANN, Judge.

Plaintiff appeals suspensively from a judgment which ordered payment of a mortgage note without attorney’s fees and refused foreclosure of the mortgage, the payment to be made within 30 days.

We affirm the judgment, but we necessarily modify its provision for payment within 30 days (a provision originally sought by defendant by reconventional demand) to make the 30 days run from definitiveness of judgment.

Plaintiff is a lawyer and notary public. He sold to defendant, who was married at the time, two pieces of property by distinct credit sales with mortgages.

When defendant sued his wife for a separation, plaintiff acted as defendant’s attorney and drafted a contract between husband and wife, selling to the husband all of the wife’s rights in the community real estate, consisting of the two pieces plaintiff had sold to defendant and a third piece acquired on credit through a building and loan association. In that contract, in return for his wife’s transfer of her interest to him, defendant agreed that he alone would discharge all of the mortgage indebtedness-es on the three pieces of property.

Thereafter defendant, again by contract drafted by plaintiff, sold a half interest in the three properties to his prospective second wife, and in that contract the prospective wife assumed solidary liability with defendant for the mortgage indebtednesses.

Thereafter defendant and his second wife agreed to sell one of the properties acquired from plaintiff, and asked plaintiff the exact amount due on the mortgage on that property. Plaintiff by letter of May 6, 1976 stated the amount due as of that date (including interest through November 1976) and added that defendant “need make no further payments on this note until the passing of the sale” originally set for June 29, 1976. (The note’s provision for “interest, from date, computed annually” is interpreted by the parties as obliging defendant to pay a whole year’s interest on the balance as of the beginning of the year, even though the balance is reduced by monthly payments during the year.)

Defendant made no further payments on the note, not even when the sale did not occur on June 29. The sale did not occur because the title insurer for the buyer took two exceptions to the title, one arising out of each contract plaintiff had prepared. First, the transfer by the first wife to defendant appeared to be a simple interspousal sale, invalidated by La.C.C. 2446. Second, the transfer by the husband to the prospective second wife for a price consisting of the mortgage debt on all three properties was deemed to have created a vendor’s privilege under C.C. 3249 upon all three properties to secure all three mortgage debts. See De L’Isle v. Succ. of Moss, 1882, 34 La.Ann. 164. (R.S. 9:5383, added by Acts 1976 No. 338, may solve the privilege problem in the future, but may leave unaffected the vendor’s right to rescind the entire sale for nonpayment of any part of the price, C.C. 2561.)

These title exceptions were called to plaintiff’s attention with the request that he cure them. He first unsuccessfully sought title insurance from other insurers. It was August 16, a month and a half past the June 29 original sale date, when a release from the other mortgage creditor was ultimately obtained, and the apparently invalid sale from the first wife to defendant was shown by recorded act to have been a valid one, C.C. 2446(1), in settlement of community after separation.

Meanwhile, plaintiff caused an associate from his law office to demand, by letter of Saturday August 13, payment of the mortgage note on the troubled property, with attorney’s fees. Thereafter he refused to release the mortgage unless those fees as well as the debt were paid, thereby preventing the pending sale. On Wednesday August 17 plaintiff filed suit to foreclose the mortgage.

Plaintiff was contractually bound not to enforce the mortgage note in accordance with its terms. The contractual modification initiated by plaintiff’s letter of May 6, 1976, to which both parties agreed, extended three but accelerated five installments (and, indeed, the entire balance) on which interest was already charged through November 19. Thus plaintiff’s promise of extension (until the sale, “which I understand is to be on or hopefully prior to June 29,1976”) was not a gratuitous one. It was therefore not unenforceable for lack of cause, C.C. 1893.

Nor can plaintiff invoke as annulling his agreement defendant’s failure to pay by June 29, because it was plaintiff himself who prevented timely payment (by creating title problems and delaying their cure). Creation by the obligee of delay in performance constitutes consent by him to that delay.

When plaintiff demanded payment in full plus attorneys’ fees, and filed this suit to foreclose the mortgage, plaintiff had no right to accelerate the maturity of the debt because of delay in payment. Accordingly plaintiff’s foreclosure demand was properly rejected: there was no debt past due when it was filed. And, therefore, there were no attorney’s fees due.

There remain two lesser points. First, to plaintiff’s request that we amend to provide interest, as the mortgage provides, on the $578 insurance premium he paid for defendant in January 1977, we respond that any interest thus due is offset by the greater amount of unauthorized interest on interest, C.C. 1939, inadvertently provided by the judgment. (The judgment grants interest at 8% from November 1976 on the entire mortgage balance, including over $2,000 of interest.) Second, to plaintiff’s complaint that the judgment was in his favor but divided costs equally we respond that plaintiff lost on his basic demand.

Amended at plaintiff’s cost to make the 30 days for payment run from definitiveness of judgment.


author: STOULIG, Judge.

text:
    GREYHOUND LINES, INC. v. NEEB KEARNEY & COMPANY, INC., and Aetna Insurance Company.
    No. 9082.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      Porteous, Toledano, Hainkel & Johnson, Michael K. Fitzpatrick, New Orleans, for plaintiff-appellee.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for defendants-appellants.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Defendants, Neeb Kearney & Company, Inc., and its insurer, Aetna Insurance Company, have appealed that part of a judgment awarding Greyhound Lines, Inc., $9,780.40 damages for loss of revenue it incurred while a bus, damaged in a traffic accident, was being repaired.

On June 6, 1975, Greyhound Bus No. 6118 was approaching New Orleans, an intermediate stop in a Miami-Los Angeles run, when it was struck on the left front by a truck tire that had jarred loose from a Neeb Kearney vehicle and jumped the median on Interstate 10. The bus repairs were completed on July 10, 1975, and the vehicle was out of service for 35 days.

The issue before us is whether the evidence adduced by plaintiff to establish lost revenue is sufficient to support Greyhound’s judgment. Appellants rely on that line of jurisprudence holding an award for loss of profits can only be given if the party has suffered an actual loss. Rader v. Harper Aviation, Inc., 246 So.2d 362 (La.App. 4th Cir. 1971). They contend the testimony of Ralph DeLuca, Greyhound’s account supervisor in Cleveland, Ohio, and the documentary evidence introduced in connection therewith, does not prove an actual loss.

As background information DeLuca, a registered public accountant, explained that Greyhound had a fleet of busses that exceeded 2,500 in both June and July of 1975, some of which were licensed for intrastate operation and others for interstate transport. He explained no vehicle is designated for one particular use; rather, all busses are available for regular runs, express or charter, and are assigned based on availability. Greyhound does not designate any of its vehicles as spare or replacement bus-ses in the event of an accident or a breakdown. Plaintiff is required by the Interstate Commerce Commission to maintain certain scheduled routes and when an emergency occurs that disables a bus — such as the accident in this case — another vehicle must be taken from the nearest available point to complete the run. Thus, when there is accident damage, and a substitute bus is used to complete a run, somewhere in the Greyhound system some depot must operate one bus short of the amount usually assigned.

DeLuca explained Greyhound uses a net profit per mile approach to establish company earnings. Therefore, for the loss involved here, he computed total mileage logged by all MC7 busses (the type involved in the accident) in June and July 1975 and ascertained each bus traveled 23,124 miles. Dividing that figure by 61, the number of days in both months, he arrived at a 379-per-mile-per-day average for each MC7 bus. DeLuca then gave $1.3107 as the gross profit per mile and from this figure the operating cost of $0.5728 per mile was deducted. The net profit per mile for the MC7 is $0.7373 multiplied by 379 (miles per day) multiplied by 35 (number of days out of service) equals $9,780.40.

Appellants attack the award, based on the described accounting method, as a paper loss that Greyhound did not actually incur. They argue that plaintiff, who had the burden of proof, failed to establish they actually rented a bus to replace the one taken out of service and rely on Rader, supra, to assert this is a prerequisite to recovery. We agree.

We do not doubt the verity of DeLuca’s statements that with the large fleet involved, to substitute one bus for a damaged vehicle will result in a shortage somewhere along the line in the system. His explanation that Greyhound must sometime rent busses from other companies to furnish the service it contracted to perform is also credible. However, we cannot use his lost revenue projections to sustain plaintiff’s claim.

Greyhound thus has based its entire claim for lost revenue on an accountant’s interpretation of its own books and records, which it did not produce. During the course of the trial, it became obvious that plaintiff neglected to enumerate all its operating costs in computing its net profit, which illustrates the disadvantage at which defendant finds itself in rebutting accounting conclusions. We hold that simple accounting summaries of average daily net income per bus is not sufficient to prove that income was lost by the disabling of a bus.

The best evidence rule requires a plaintiff to submit the best proof as the nature of the thing will afford. McCormick Evidence 2nd Ed. p. 559.

The “domino theory” the trial judge accepted supposes the New Orleans office which supplied the immediate replacement bus was on that account missing one bus from those ordinarily available to it and neighboring offices, and therefore it and those offices required a bus which would otherwise have been available to another office, say Atlanta, which in turn had to borrow a bus from another seacoast office. There is no specific testimony that charters had to be refused on all 35 days when the bus at issue was being repaired. It is possible more busses were available than required for charter on many of these days and remained idle. Plaintiff claiming damages for loss of use must rule out possibilities that negate the need for a replacement bus. There is no testimony as to the number of days on which busses were rented from other companies to fill charter needs nor does Greyhound pinpoint on what days charters were refused in its nationwide system because of nonavailability of a bus. It is possible seven charters were refused on one day and the loss of use of one bus would not have satisfied the requirement of seven.

Of necessity, Greyhound must keep extensive records for tax purposes and it would not have been difficult for it to establish its need to rent a bus because of this accident. Cost accounting conclusions are not enough to establish a prima facie case.

The record does reflect six charters were lost in New Orleans during the repair period. This bus could have been taken if it had not been disabled. Greyhound failed to produce average charter revenue figures and therefore failed to meet its burden with respect to this aspect of the claim.

For the reasons assigned, the judgment appealed from is reversed and this suit is dismissed at Greyhound’s cost.

REVERSED.

      . That part of the judgment awarding $1,701.44 for bus repairs is not challenged by defendants.


author: SCHOTT, Judge.

text:
    Frank BURAS v. BOARD OF TRUSTEES OF the POLICE PENSION FUND OF the CITY OF NEW ORLEANS.
    No. 9113.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.
    Edward S. Bopp, a Law Corp., Ronald A. Welcker, Arabi, for plaintiff-appellee.

      Richard A. Dowling, New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

This suit was initiated by a member of the New Orleans Police Department to review a ruling of the defendant Board that he was not entitled to disability benefits. He had sustained a severe laceration on his left foot on April 23, 1975, when he went through a plate glass window while on duty. The trial court rendered judgment in favor of plaintiff and against defendant, finding plaintiff disabled and entitled to benefits applied for. From this judgment defendant has appealed.

At the trial, plaintiff produced his own testimony and that of a psychologist, along with the deposition of a physician taken for trial and some medical reports which had been rendered to the Board. Defendant offered the testimony of the secretary of the Board, a police investigator and the operator of a gun shop in Chalmette, Louisiana, together with some documentary evidence. The testimony centered largely around defendant’s offer to plaintiff of a desk job with the Police Department in lieu of the duties he had been performing before the accident which disabled him and around defendant’s allegation that plaintiff at the time of the trial was employed or otherwise engaged in business in connection with the gun shop. There is a paucity of evidence to show what proceedings were conducted before the Board in the first instance and what findings were made by it.

Minutes of a meeting held on January 13 were offered and the official report of the Board’s disposition of plaintiff’s claim on that date is found in the following entry:
“The Disability Pension request for Frank Buras was heard at this meeting, and Frank Buras and his Attorney, Mr. Ronald Welcker appeared before the Board.
“Frank Buras and his attorney made a statement and were asked questions about his disability and the probability of his returning to work and work at a desk job. After a session of questions and answers, the Board asked the attorney and Frank Buras to leave the Conference Room in order that they the Board could discuss his case and further review his medical reports.
“After a lengthy discussion the Board decided to deny the request for disability pension and requested P/O Frank Buras to have his physician re-evaluate his disability and report back to this Board as soon as possible. In the meantime P/0 Frank Buras was asked to return to work at a desk job awaiting the final decision of the Board.”

The medical reports apparently available to the Board at this first meeting were made by Dr. Nick V. Accardo on October 14, 1975, Dr. Stuart I. Phillips on October 23, 1975, and Dr. James L. Nelson on various dates.

Dr. Accardo who saw plaintiff on October 5 stated that his vein, artery, nerve and three tendons had been cut in the accident necessitating emergency treatment at Charity Hospital and transfer to Hotel Dieu where he was treated and operated on by Dr. Nelson. Following hospitalization for eleven days, placement in a cast for five weeks and physical therapy for five or six weeks, his recovery reached a maximum. He was left with a drop foot which caused him to fall and trip on several occasions. Dr. Accardo was of the opinion that further treatment and physical therapy, along with the wearing of a brace, could improve his condition and that a final evaluation of disability should not be made at that time.

Dr. Phillips, who saw plaintiff on October 21, saw the drop foot and recommended surgery as an alternative to plaintiff’s wearing a brace for the rest of his life. He thought there was a 50/50 chance that the surgery would be successful “and if it was he could return to police work.” His report concluded with the following:

“I do not believe it is reasonable to expect him to return to police work with a drop foot brace unless he were in some sort of desk job for the police department. He certainly could not be expected to chase down burglars or perform other functions of the police officer who works a beat, in a drop foot brace.
“I have ordered the brace for the patient and asked him to wear it for a period of two or three weeks. Then he should come back to further discuss the matter. At that time, if he has made up his mind to accept the disability, he can be retired. If he has made up his mind to attempt surgery, I will let you know.”

Whatever reports the Board had from Dr. Nelson on January 13 are not in the record but the Board’s secretary, Lt. Albert W. Raimer, testified that plaintiff was asked to have another medical examination before they would make a final decision. In the meantime plaintiff did not accept the offer of a desk job.

The record contains a report of a medical re-evaluation by Dr. Nelson on January 28, 1976. In it he states that there is no improvement in plaintiff’s disability which consists of a sensory deficit and limitation of motion. Plaintiff’s complaint of numbness and pain on the left ankle and leg “is accentuated when the foot is left in a dependent position, as when sitting, for 2 hours or more.” Dr. Nelson stated specifically that no benefit would flow from additional surgery or physical therapy.

Raimer testified that the minutes of a meeting of the Board held on March 16 show the final disposition of plaintiff’s claim for disability pension. The minutes themselves are not in the record but Raimer said the following action was taken by the Board:

“. . . the disability was denied at that time, with the provisions that he tried to work for one year, and, if in during this one year, if he seen he could not perform the duties that was assigned to him by the Office of the Superintendent, then he could reapply for disability pension.”

The record indicates that the Board had the benefit of a re-evaluation of plaintiff’s condition by Dr. Accardo but this report is not in the record.

In any event, on March 24 plaintiff responded to the Board as follows:

“In reference to our conversation on March 18, 1976 in the pension conference room where the members of the board of the pension system refused my disability pension and instead OFFERED me a desk job for a period of one year, with the option of returning before the board at that time.
“After consulting with my attorney, Mr. Ronald Weilker, I have decided to refuse such a generous offer and take this matter to the Civil District Court for the State of Louisiana. This decision was made on my part because I feel that I am entitled, because of my disability, to this pension. It is also my belief that I am not only entitled to this pension, but that I deserve it, especially after seeing some of the other pensions which were granted by this pension board.”

The trial judge several times during the course of the trial expressed some dissatisfaction with the lack of evidence as to what the Board had done, but nevertheless proceeded with a trial which, under the circumstances, was essentially a trial de novo. While we can understand the trial judge’s action under the circumstances, we do not believe that this procedure was in accord with the law and jurisprudence on the subject.

The procedure governing actions of this type is found in R.S. 33:2284, which provides as follows:

“The Board shall administer, manage, operate, and control the fund; shall make necessary rules and regulations for its operation, distribution, and government; and shall hear and decide all applications for pensions. Its decision on such application shall be final and conclusive. There shall be no appeal from the finding of the Board. . . . ”

As we pointed out in Miller v. Board of Trustees of Police Pension Fund, 286 So.2d 788 (La.App. 4th Cir. 1973), writs refused, 290 So.2d 901, this statute cannot be interpreted to prevent an applicant from seeking judicial review since this would be clearly inconsistent with Art. 1, § 22, of the Constitution of 1974. So, despite the language of the statute an applicant who has been denied a pension by the Board is clearly entitled to bring his case to court. However, we are not concerned here with the question of the availability of judicial review but rather with the scope of that review.

In his original petition, plaintiff invoked the provisions of the Administrative Procedure Act, LSA-R.S. 49:951 et seq., but the trial judge specifically declined during the course of the trial to decide whether or not this act applied to defendant. Similarly, this court, in Miller v. Board of Trustees, supra, in a footnote declined to decide whether the act applied to this defendant. If the act were pertinent a remand to the Board by the district court would clearly have been warranted in view of the lack of a record available for the court to review. See R.S. 49:964. However, whether the act is applicable or not, the intent of the legislature in the formulation of R.S. 33:2284 surely requires that courts give some weight to the findings of the Board as opposed to a trial de novo of the matter.

Confronted with a similar problem in Gertler v. City of New Orleans, 346 So.2d 228 (La.App. 4th Cir. 1977), writs refused, 349 So.2d 885, we held that the Administrative Procedure Act per se did not apply to the Board of Zoning Adjustments of the City of New Orleans, but nonetheless we looked to the act for some direction in deciding the scope of judicial review from a decision of that Board. In that case we held that it was not the function of the court under the zoning law to substitute its own determination for that of the Board absent a finding that the Board’s action was arbitrary and capricious.

One of the purposes of administrative remedies is to enable parties to resolve their disputes in a less cumbersome and less expensive manner than is normally encountered at a trial in court. Administrative proceedings operate to the advantage, not only of the litigants, but also of courts, which are thereby relieved of some matters on their dockets. If an administrative agency makes no record of its proceedings, observes no formalities whatsoever, conducts some of its affairs behind closed doors and provides the parties with no findings whatsoever, the entire purpose of the administrative determination is defeated and the concept of judicial review is frustrated. This is precisely the reason why the Administrative Procedure Act was adopted and why the same sort of procedure should be followed by defendant and other such agencies in order to guarantee justice to applicants as well as the board which, as in this case, might find itself at a disadvantage before a court because of its one loose procedure.

One of the remedies afforded to parties under the Administrative Procedure Act, R.S. 49:964 G., is that the court might remand the case to the agency for further proceedings. Because of the failure of the Board to present to the district court a proper record and findings, we have considered that the appropriate action by the trial court might have been to remand the case to the Board for a full hearing on plaintiff’s application with instructions to make up a complete record and to provide written findings of fact and conclusions for the benefit of a reviewing court.

We have likewise considered reversing the judgment of the trial court and remanding this case to the Board with instructions to conduct proper proceedings in considering plaintiff’s application but have concluded that judicial economy requires us to decide the case with finality on the evidence before us.

At the trial Dr. Nelson’s deposition taken on November 29, 1976, was introduced. He had not seen plaintiff since January and gave the following testimony relative to plaintiff’s condition at that time:

“EXAMINATION BY MR. DOWLING:
Q. You say he can drive?
A. I would think he can drive, yes.
Q. Can he sit down? Could he sit down and work?
A. Yes.
Q. He could hold a job sitting down?
A. Yes.
Q. And like bookkeeping or something of that sort, he could do that, and this injury wouldn’t prevent him from doing that?
A. That is correct.
MR. DOWLING: That is all I have.
EXAMINATION BY MR. WELCKER:
Q. I have a couple of questions that is all I have to ask you, Doctor.
I believe you have given your opinion, Doctor, that you feel that Officer Buras could perform a job sitting down such as a bookkeeper. Would it also be your opinion that he could perform this type of work on a long hour basis, say eight hour a day job at this, in view of his subjective complaints of pain and so forth in his leg?
A. I would not be surprised if he was bothered by pain in that ankle that would occur at the time he was at work.
Q. So, in all likelihood, he would be in pain while he was at work?
MR. DOWLING: No, I think he said he would be surprised if he would not be, he wouldn’t give that as a definite opinion.
THE WITNESS:
Right. I don’t necessarily mean that he would, that he is going to have pain. On the other hand, I would not particularly find it particularly unusual if he did complain of pain.
EXAMINATION BY MR. WELCKER:
Q. That would be consistent with his history and so forth that you are familiar with?
A. Yes.
EXAMINATION BY MR. DOWLING:
Q. But you are not giving that as a positive opinion that he would have pain? You are giving it as an opinion that it might occur and it might not occur?
A. That is correct.”

Thus, Dr. Nelson felt that plaintiff was not disabled from performing the duties of a desk job which the Board offered and he refused. While Dr. Nelson admitted the possibility that plaintiff might feel pain while working he did not consider this possibility in itself to be disabling.

In Miller v. Board of Trustees of Police Pension Fund, supra, we pointed out that the same rules of liberal construction are not available to a claimant for disability benefits under LSA-R.S. 33:2292 as are applicable to a claim under the Workmen’s Compensation Law. Under the statute under consideration, a claimant is entitled to a pension only “if he becomes permanently disabled so as to render his retirement from service necessary.” Where plaintiff was offered a desk job and simply declined it on the possibility that he might feel pain from his injury he cannot be said to be entitled to a pension under the statute.

Finally, we are persuaded by the terms of the Board’s offer.. Plaintiff was given the opportunity to try the desk job for a year with the understanding that he could re-apply if it didn’t work out. This offer seems quite conciliatory especially in contrast to plaintiff’s rather arbitrary refusal to try.

Accordingly, the judgment of the trial court is reversed and set aside and there is judgment in favor of defendant, Board of Trustees of the Police Pension Fund and against plaintiff, Frank Buras, dismissing his suit at his cost.

REVERSED AND RENDERED.


author: LEMMON, Judge. REDMANN, Judge, STOULIG, Judge,

text:
    Edward MANGIN et al. v. William H. AUTER, Jr., et al.
    No. 9142.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.
    Thomas E. Loehn, New Orleans, for relator.
    Wayne J. McDougall, Chalmette, for respondent.
    Before REDMANN, LEMMON, STOUL-IG, BEER and GARSAUD, JJ.
   LEMMON, Judge.

This case comes before us after we granted defendant’s application for supervisory writs, complaining of a judgment overruling an exception of prescription after a hearing on the exception.

The issue before the court is whether plaintiffs’ claim for damages sustained in a February 29, 1976 accident was prescribed when suit was filed on March 1, 1977.

Supervisory Writs

Generally, this court will not exercise supervisory jurisdiction to review a judgment overruling a peremptory exception, although an intermediate appellate court has plenary power in its discretion to intervene at any stage of a proceeding in a trial court. La.Const.1974, Art. 5, § 10. See also Tate, Supervisory Powers of the Louisiana Courts of Appeal, 38 Tul.L.Rev. 429 (1964). Under the self-imposed limits on its supervisory powers, the courts of appeal almost without exception deny writ applications complaining of the overruling of exceptions on the basis that the relator may ultimately win on the merits or, if he ultimately loses on the merits, may reurge the exception on appeal and obtain adequate relief. Furthermore, the courts of appeal do not wish to encourage routine applications for supervisory review of interlocutory judgments, since such a practice would substantially disrupt the dockets of the courts at both levels.

Nevertheless, this policy is not absolute, and the court in its discretion may grant meritorious applications for supervisory writs when the action is dictated by considerations of efficient judicial administration and fundamental fairness to litigants.

In the present case there is absolutely no issue of fact, and if the claim is prescribed, a trial on the merits will not provide any facts to affect the outcome of the suit. Equally important, an order reversing the judgment and maintaining the exception will terminate the litigation.

When the court was presented with the writ application, the initial reaction was that the result was incorrect. We granted the writ, because our correcting the judgment at this stage would avoid the useless expenditure of time and effort by the attorneys, the judge, and the court personnel and of money by the litigants. Clearly, the time and expense of a trial on the merits will be wasted, if the ultimate decision will be based on the exception of prescription, which at this stage of the proceedings has been tried on its undisputed facts and seems on its face to be meritorious.

Therefore, while we reiterate and reemphasize our general policy against reviewing routine applications for supervisory writs under C.C.P. art. 2201 after an exception has been overruled, we conclude that the writ was providently granted under the circumstances of this case.

Here, the accident occurred on February 29, 1976, and the question is, what is a “year of the calendar” after a February 29? The February 29 next following is four calendar years later, rather than one. Thus, either February 28 or March 1 of the following year is the last day of the “year of the calendar” following a February 29.

Art. 3468’s rule for counting months “whatever may be the number of days which each month may contain” is instructive. A claim prescribed by a period of months and arising on the 30th or 31st day of a month would expire on the last day of the critical month even if that month had only 28, 29 or 30 days. One faced with the two-month limitation for redhibition of animals, C.C. art. 2535, must (ordinarily) sue no later than February 28 (or 29 in leap year) to rescind a sale of December 31: by March 1 two calendar months have passed and the claim is prescribed. That the two-month claim arises December 31 does not entitle the claimant to sue until “February 31 ”, nor until three days after February 28, that is, March 3. This principle is applicable here by close analogy: that a one-year claim arises February 29, 1976 does not entitle the claimant to sue until “February 29, 1977” nor until one day after February 28,1977, that is, March 1. The period is one year of the calendar, C.C. art. 3469, and between February 29, 1976 and March 1, 1977 a full calendar year of 12 full months has passed (although that calendar year’s February had only 28 days). March 1, 1977 is the first day of the second calendar year following February 28, 1976, just as March 1, 1976 was the first day of the first calendar year following February 29, 1976. Plaintiffs could have filed suit on March 1, 1976 and they are not entitled to another March 1 within the one year allowed for filing suit.

This suit brought March 1, 1977 on a claim arising February 29, 1976 and prescribed by one year is prescribed.

Accordingly, the judgment of the trial court is reversed, the exception of prescription is maintained, and plaintiffs’ suit is dismissed.

REVERSED AND RENDERED.

REDMANN, J., concurs and assigns reasons.

Stoulig, J., dissents and assigns reasons.

REDMANN, Judge,

concurring.

I join in the majority opinion on the merits of the plea of prescription.

I disagree, on fact and and on principle, with the view that this court is and should be sparing in its exercise of supervisory jurisdiction.

The fact is that this court is increasingly generous in its exercise of supervisory jurisdiction, as indeed it ought to be. Last court year we granted 60 of the 165 writ applications we received. (The other three courts of appeal granted a total of 29 of 150 applications.)

The principle is that of La.Const. art. 1, § 22:

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality or unreasonable delay, for injury to him in his person, property, reputation or other rights.

If we can spare a litigant the great and unrecoverable expense (surely an “irreparable injury”) of the trial of a suit that should be dismissed on exception, we are obliged to do so.

STOULIG, Judge,

dissenting.

I respectfully dissent. I am of the opinion that the writ of certiorari should be recalled and vacated.

Relators’ applications for writs is based upon the trial court’s dismissal of their exception of prescription. Supervisory writs should not be granted from a trial court’s overruling of a peremptory exception (an interlocutory ruling), and only in the instances where “harsh results, irreparable injury or arbitrary trial action cannot be avoided by ordinary appellate remedies” should we exercise our extraordinary supervisory powers.

Relators’ situation does not fall within one of these exceptions to the general rule against granting of supervisory writs from the dismissal of an exception. The judgment of the trial court in the instant matter does not cause harsh results, irreparable injury nor was it an arbitrary action, the effects of which could not be overcome by appeal. The dismissal of the exception only subjects the relators to the ordinary inconvenience and expense of litigation, which are normally encountered by every defendant and neither of which can be classified as a harsh result or irreparable injury.

      . The three-judge panel originally granted the writ application. After submission on the merits one of the original judges reconsidered and concluded that the writ was improvidently granted. Therefore, although the original panel unanimously agreed on the decision of the merits of the case, the non-unanimity of the judgment reversing the trial court required that the matter be argued before a five-judge panel. La.Const.1974, Art. 5, § 8(B).

      . Tate, Supervisory Powers of the Louisiana Courts of Appeal, 38 Tul.L.Rev. 429 (1964).


author: STOULIG, Judge. LEMMON, Judge,

text:
    Raymond CABALLERO v. Flora Wilkinson, wife of/and Julius W. CERDES.
    No. 9163.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      Bronfin, Heller, Feldman & Steinberg, Fred Bronfin, New Orleans, for plaintiff-appellee.
    Beoubay & Gegenheimer, Kenneth A. Beoubay, Gretna, for defendants-appellants.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Raymond Caballero, filed suit against defendants, Julius and Flora Cerdes, on a promissory note dated August 25, 1971 which plaintiff claims to have obtained in late March, 1972 in pledge as security for a loan by plaintiff and others to a company known as American Budget Plan, Inc.

Defendants answered and filed a defense of payment of the note sued upon. In addition, they filed third party demands against the notary public who closed the loan from which the note originated and other notaries who closed loans by which the note sued upon was to have been refinanced. The third party demands were severed by the trial court and have not been tried.

The record reveals that on August 25, 1971, defendants borrowed money from American Budget Plan, Inc. and executed two identical collateral mortgage notes in the amount of $10,000 each, payable to the order of bearer. Each note was paraphed for identification with, and secured by, acts of collateral mortgage encumbering separate pieces of immovable property. On the same day, defendants executed two identical hand notes, each in the amount of $5,375 as evidence of the amount actually borrowed under each collateral mortgage note.

In March, 1972, American Budget Plan, Inc. (defendants’ creditor) itself agreed to borrow from one Daniel L. Levy, Jr. and his sisters the sum of $30,000, which it agreed to repay over a five-year period in stipulated monthly installments. The parties agreed to secure the $30,000 loan by pledge of promissory notes executed by third persons (borrowers of American Budget Plan, Inc.). Even though the money loaned belonged to Levy and his sisters, they delegated mechanics of advancing the funds and obtaining the pledge security to the plaintiff, Levy’s brother-in-law. On March 22, 1972, plaintiff delivered to American Budget the sum of $18,300 and on March 30,1972 he delivered an additional $12,000 of his in-laws’ money. On each occasion, American Budget pledged promissory notes executed to it by third parties as collateral for the loans. Among the notes thus pledged was one of the hand notes executed by defendants on August 25, 1971.

In 1973 defendants decided to refinance its obligations to American Budget. Consequently, on April 27, 1973 American Budget was paid $5,125 by a local homestead, in return for which one of defendants’ original collateral mortgage notes was cancelled. On May 23, 1973, American Budget was paid $5,250 by another homestead, in return for which the other original collateral mortgage note was cancelled. However, it appears neither homestead notary demanded the return of the two outstanding hand notes which evidenced the amount of defendants’ obligations to American Budget, and one of these hand notes was among those pledged by American Budget to plaintiff as security for the loans to it of the money belonging to Levy and his sisters.

American Budget defaulted on its loan to plaintiff in 1975, and on October 1, 1975 plaintiff filed suit against defendants on one of defendants’ hand notes.

The trial court rejected defendants’ defense of payment. We reverse on other grounds.

A careful review of the record shows the plaintiff is not the real party in interest and has no standing to sue in this proceeding. By his own admission, plaintiff had no interest in the funds advanced by Levy and his sister in return for which the note sued upon was pledged. Plaintiff admitted he was a mere “functionary” in the transaction. He gave no consideration for the promissory note received by him in pledge, he did not purchase the note, and he could therefore not be the holder of an instrument which purported to be a note. By his own judicial admission, he had no more interest in the transaction than as a family bookkeeper.

Article 681, Code of Civil Procedure, provides an action can be brought only by a person having a real and actual interest which he asserts. This court has authority on its own motion to notice a plaintiffs lack of interest in the subject matter and act accordingly pursuant to Article 927, Code of Civil Procedure. An exception to the rule that a plaintiff must be the real party in interest is presented by Article 694, Code of Civil Procedure, which allows an agent to sue to enforce a right of his principal, when specially authorized to do so. However, the record contains no evidence whatever to establish or even suggest plaintiff’s suit was brought in his capacity as agent or that he was specially authorized to sue as agent. Because of the total absence of evidence of the plaintiff’s interest in the proceeding the only alternative open to this court is to dismiss plaintiff’s suit for lack of procedural capacity.

For the reasons assigned, the judgment appealed from is annulled and the plaintiff’s suit is dismissed without prejudice on an exception of no right of action. All costs to be borne by appellee.

JUDGMENT ANNULLED; EXCEPTION MAINTAINED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge,

concurring and assigning reasons.

I agree, for other reasons, that the judgment of the trial court should be upset, but I would reverse and render a judgment for defendants on the evidence in the record.

This is a suit on a promissory note, with a defense of payment. The pivotal issue is whether defendants’ payment to American Budget discharged their obligation on the note.

It is important to note that American Budget did not sell the note to plaintiff, but rather turned the note over to plaintiff to secure payment of American Budget’s note. The implicit agreement between plaintiff and American Budget was that American Budget would make payments on its own promissory note, while making collections on the pledged notes, and that if American Budget defaulted in its payments on its own note plaintiff would have the right to collect any unpaid balance on the pledged notes at the time of American Budget’s default. This agreement is evident in that plaintiff, by consenting to American Budget’s continuing to make collections on the pledged notes, had to intend to relegate himself to accepting only the unpaid balance of these notes in the event of American Budget’s default.

At the time of American Budget’s default defendants had already paid off the note. Significantly, defendants made the payment to the party authorized by plaintiff to malee collections on the note.

I would maintain the defense of payment, whether on the theory that American Budget authorized plaintiff’s collections from defendants or on the theory that plaintiff by consenting to American Budget’s collection of defendants’ payment is estopped from asserting that defendants have not paid the note. Plaintiff’s recourse to recover the amount paid is against American Budget, to whom payment was made under plaintiff’s authority or with his consent.

      . Small v. Levy, 355 So.2d 643.

      . There is more evidence in the record to indicate defendant made payment to Levy’s agent than there is that plaintiff acts as Levy’s agent in bringing this suit.

      . I disagree that plaintiff had no right of action. He advanced the funds from his checking account to make the loan for which defendants’ note was pledged, and he was the holder of defendants’ note at the time suit was filed. Plaintiff’s pleadings were amended by evidence establishing that he acted for others in advancing funds and filing suit, and this evidence does not deprive plaintiff of a right of action, but merely proves that his right is asserted as agent for other parties.


author: SAMUEL, Judge. REDMANN, Judge,

text:
    Frank Michael JACKSON and Frank J. Jackson v. William W. WATSON, William W. Watson, Jr., Bill Watson Ford, Inc., United States Fidelity & Guaranty Company and Fidelity & Guaranty Insurance Underwriters, Inc.
    No. 9183.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Harvey L. Strayhan, New Orleans, for plaintiffs-appellants.
    Montgomery, Barnett, Brown & Read, Daniel Lund, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   SAMUEL, Judge.

Plaintiff, Frank Michael Jackson, filed suit against defendants, William W. Watson, William W. Watson, Jr., Bill Watson Ford Company, United States Fidelity and Guaranty Company, and Fidelity & Guaranty Insurance Underwriters, Inc., the liability insurers of defendants, for damages resulting from personal injuries sustained while he was riding on a wooden sled being pulled by a rope attached to the back of a pickup truck. Plaintiff’s father, Frank J. Jackson, was joined as plaintiff to recover medical expenses incurred by him for the treatment of his adult son. Hereinafter the younger, injured Jackson is referred to as “plaintiff”.

Defendants answered, denied liability on their part, and pleaded contributory negligence and assumption of risk on the part of plaintiff.

The case went to trial before a jury, and at the conclusion of the trial plaintiffs voluntarily dismissed the defendant corporation. The jury returned a verdict in favor of plaintiff against William W. Watson, Jr. and the two insurance companies, and judgment was rendered in accordance with the verdict.

The defendants cast filed a motion for a new trial with supporting memorandum in which they urged numerous grounds, including alleged errors by the jury in finding Watson negligent, in not finding the plaintiff contributorily negligent, and in rendering a verdict which was unconscionably high, and by the trial judge primarily regarding alleged errors or omissions in his charge to the jury. In due course, the trial judge rendered judgment granting defendants a new trial.

Plaintiffs then filed an application for supervisory writs in this court, seeking reversal of the judgment granting a new trial. We denied the application on the ground that under the circumstances shown the ruling of the trial judge appeared to be within his discretion.

Subsequently, the case was retried before a jury in its entirety. Following the second trial the jury returned a verdict in favor of all defendants and against both plaintiffs. Judgment was rendered in accordance with the verdict, dismissing plaintiffs’ suit. Plaintiffs have appealed.

On February 3, 1973, William Watson, Jr. was the host of a bachelor party for his friend, one Robert Schroeder. The party was held on property owned by Watson’s father in Poplarville, Mississippi. He conditioned permission to hold the party on his driving his son and guests from New Orleans to Poplarville and back in a truck or similar vehicle so that no problems would result from the participants driving while intoxicated. Each of the participants in the party was near or over 21 years of age and the record establishes that all were over the age of majority.

At this point the testimony becomes contradictory. It is nevertheless agreed that the party began in New Orleans between 9 and 9:30 a. m. when defendant and his guests boarded the van truck to be driven to Poplarville. The evidence indicates the young men began drinking when they entered the van and that they consumed quantities of beer on the way to the party. It need hardly be said the amount of alcohol consumed is in dispute. After they arrived in Poplarville, the drinking continued, and one of defendants’ witnesses indicated the beer mugs were kept full at all times. While the evidence is again conflicting, there is much testimony to establish the participants to the party, including the plaintiff, were all soundly under the influence of alcoholic beverages.

Between 1:30 and 2 p. m., a wooden sled, consisting of a three-by-four piece of plywood, was tied to the back of a pickup truck by means of a rope. The evidence indicates plaintiff insisted on being first to ride, and he was required by Watson, Jr. to put on safety equipment, including a motorcycle helmet, goggles, heavy gloves, and jacket. He was also instructed to roll off the sled in the event any problem should arise, and he would be protected from injury by the heavy-duty motorcycle protective gear.

There is testimony by persons who had ridden the sled in this fashion that the rider of the sled was not without some control over his direction, since the friction between the sled and the ground allowed the rider some control over direction of the sled as it followed the truck by shifting weight from one side to the other. Consequently, the degree of an arc described by the sled when the truck made a turn could be reduced by the rider’s shifting his weight in the appropriate direction.

Watson, Jr., without the knowledge or acquiescence of Watson, Sr., drove the truck down a pasture alongside a stand of trees. Plaintiff could not estimate the speed of the vehicle, but Watson, Jr. testified he proceeded no faster than 10 to 15 miles per hour in a straight path and slowed to 5 miles per hour on turns. His testimony was corroborated by other witnesses.

Plaintiff did not remain in either a seated or prone position on the sled, but instead stood up while it was moving. As the truck went into a left turn, which defense witnesses described as slow and gradual, plaintiff leaned his weight in the direction of the turn, thereby forcing the sled to slide out further to his right and describe a wider arc than it would have if he had either maintained his weight in the center of the sled or shifted it to the left. During the process of this turn, both the sled and plaintiff struck a tree, resulting in plaintiff’s injuries.

It suffices to say that there is much testimony regarding the vast amount of alcohol allegedly consumed by Jackson. On the other hand Jackson testified he had not consumed enough alcohol to impair his mental or physical faculties to any extent.

The first issue sought to be posed by appellants for this court’s consideration is whether the trial court committed error by granting defendants’ motion for a new trial. We cannot consider that issue on appeal. Our long established jurisprudence, both under our present Code of Civil Procedure and its predecessor the Code of Practice is that a trial court order granting or denying a new trial is not appealable; it is reviewable only under the appellate courts’ supervisory jurisdiction for abuse of discretion. Here, as has been pointed out, this court has denied an application seeking reversal of the judgment granting t'he new trial.

The issue we must and do consider is whether the verdict of the second jury in favor of defendants is contrary to the law and the evidence. Stated another way, we must determine whether the evidence contained in the record furnishes a reasonable factual basis for the jury’s verdict.

The test to be applied by an appellate court on reviewing a decision of a trial court was set forth clearly and concisely in Canter v. Koehring Company, as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Upon the authority of Canter v. Koehring Company, this court has stated that in dealing with a jury verdict of liability we are limited in our scope of review to the question of whether there is evidence in the record which furnishes a reasonable factual basis for that verdict. Here the record contains ample- evidence which, although in conflict with some of the other evidence, furnishes such a reasonable factual basis both as to negligence, or lack thereof, on the parts of both Watson, Jr. and the plaintiff.

Plaintiffs also argue the verdict is contrary to the law and the evidence because the jury was not afforded the benefit of statements by the witnesses during the first trial which they contend contradict statements made by them in the second trial. The record shows no attempt by plaintiffs to introduce evidence of prior contradictory testimony, and plaintiffs merely state in brief that the trial judge had said a mistrial would be declared should any mention be made of a previous trial in the presence of the jury.

Prior contradictory statements given in a proceeding between the same parties can be used to contradict or impeach the testimony of witnesses when proper foundation has been laid for such an attack. However, the record does not indicate plaintiffs attempted to impeach the witnesses and it appears the testimony given at the first trial had not been reduced to writing at the time of the second trial, thereby rendering their ability to impeach by virtue of prior inconsistent statements somewhat doubtful. In addition, if plaintiffs had desired to contradict the testimony of the witnesses, it was incumbent upon them to take whatever proceeding necessary to place in the record the admonition of the trial judge that a mistrial would be granted upon mention of a prior trial. We are bound by the record and the absence of such evidence in the record prevents our giving consideration to plaintiffs’ argument.

Finally, plaintiffs argue the trial judge’s charges to the jury were deficient and improper. On appeal they specify two such alleged improprieties. First, they allege the trial judge committed error by not charging the jury on the doctrine of last clear chance. For the application of this doctrine, three criteria must be satisfied. First, it must be shown plaintiff was in a position of peril of which he was unaware or from which he was unable to extricate himself. Second, the defendant was in a position to discover plaintiff’s peril. And third, when defendant did in fact discover plaintiff’s peril, he had reasonable opportunity to avoid the accident. In the present case plaintiff was able to extricate himself from that position had he used a minimum of care in watching approaching objects. The evidence indicates, and plaintiff does not seriously contest, that the rider of the sled had some control over it by shifting his weight from one side to the other in order to guide his direction, particularly on curves. Plaintiff was clearly able to extricate himself from his position of peril either by shifting his weight on the sled or by jumping off the sled as he was originally instructed to do when furnished with the helmet and other safety equipment. Under these circumstances, it is not necessary for us to consider the other elements of the last clear chance doctrine to determine the trial judge did not commit error for not giving the charge based upon it.

Finally, plaintiff complains of an instruction given the jury by the trial judge which stated that Watson, Sr. was under no duty to supervise or control the actions of any of the participants in the party, that each of the participants are to be judged according to adult standards, and that at the time of the accident all participants were to be judged as adults because they were over the age of 18 years. Plaintiffs are incorrect in their assertion that this charge approached a directed verdict in favor of Watson, Sr. Immediately prior to the charge complained of, the trial judge instructed the jury that plaintiff could recover against Watson, Sr. if he were guilty of personal negligence, but that he could not be held liable to plaintiff merely because he owned or was present on the property on which plaintiff was injured. This is a correct statement of Louisiana law and when the charge complained of is taken in context with the immediately preceding charge, it is clear the trial judge did not commit error in charging the jury in the respects complained of by plaintiff on appeal.

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

AFFIRMED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge,

dissenting.

Because Frank Jackson had no experience with the alleged applicability of hydrodynamic principles of water-skiing to board-sledding on solid earth pasture, he cannot be charged with unreasonable behavior (contributory negligence) for shifting or failing to shift his weight so as to affect his sledding path. William Watson, Jr., on the other hand, from his experience knew or should have known that the sledder’s shifting his weight could cause the sled to move out to the right or left from the path of the towing truck, so that driving the truck too close to trees would endanger an inexperienced sledder. If, therefore, Jackson’s mishap resulted from his shifting [or failing to shift] his weight and causing the sled to deviate from the truck’s non-collision course, Jackson cannot be held contributorily negligent unless for consenting to be towed by a driver known by Jackson to be so drunk that collision was probable (and therefore its risk assumed).

The same conclusion obtains if (as seems more likely) the effect of weight-shifting on the sledder’s path is not a factor, and the accident occurred simply because Watson, Jr. drove the truck on a collision course for the sled and sledder. Apparently the truck drove so far into the apex of the triangular (“pie-shaped”) clearing that the sled and sledder’s momentum — altered in direction until reversed by centripetal force from the U-turning truck — hurled them, at greatly increased speed as in the cracking of the tip of a whip, into the too-close trees. Because of the short distances (limited by the 30-foot tether) and short times involved, and because the towing truck (plus the thrown-up dust and grass particles) obscured the sledder’s view, Jackson cannot be contribu-torily negligent for his failure to realize early the imminence of collision and for his consequent failure to abandon the sled (a course appearing to the person of ordinary prudence like that from frying pan into fire, of quite doubtful efficacy in any case because the sledder’s momentum’s direction is -the same as the sled’s). Accordingly, if the accident occurred (as seems most probable) because Watson drove the truck too close to the trees while turning, Jackson’s only possible contributory negligence was consenting to being towed by an obviously drunk driver.

But Watson, if drunk, cannot have been so obviously drunk that Jackson should have foreseen some collision as probable. Watson’s own evidence is that he continued both to drive (towing the sled) and to drink the rest of the day without incident.

Jackson should recover from Watson, Jr.

      . The application for writs bears No. 7845 of the docket of this court.

      . Majority in Louisiana is 18 years. LSA-C.C. Art. 37.

      .Code of Practice Article 566; Code of Civil Procedure Article 2083; Foster v. Kaplan Rice Mill, 203 La. 245, 13 So.2d 850; Bland v. Government Employees Ins. Co., La., 334 So.2d 231; Miller v. Chicago Insurance Company, La., 320 So.2d 134; Bunge Corporation v. Emmons, La.App., 320 So.2d 230; Simmons v. Beauregard Parish School Board, La.App., 284 So.2d 668; Pate v. Crescent Motors Exchange, Inc., La.App., 256 So.2d 471.

      . La., 283 So.2d 716, 724.

      . Reggio v. Louisiana Gas Service Company, La.App., 333 So.2d 395, 406. See also Perrin v. St. Paul Fire & Marine Ins. Co., La.App., 340 So.2d 421, and Garrison v. Hotel Dieu, La.App., 319 So.2d 557.

      . See, for example, Jackson v. City of Baton Rouge, La.App., 286 So.2d 743.