text:
    John LANDRY v. Brad DAVIS.
    No. 11550.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Arthur Cobb, Baton Rouge, of counsel for plaintiff-appellant John Landry.
    Sumpter B. Davis, III, Baton Rouge, of counsel for defendant-appellee Brad Davis.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is a suit by John Landry to recover damages for injuries sustained as a result of a battery inflicted by the defendant, Brad Davis. After trial on the merits, judgment was rendered awarding Landry the sum of $3,000.00 as damages and $186.00 as medical expenses. From this judgment, Landry has appealed contending that the damage award is grossly inadequate. Davis answered the appeal and requested that the judgment be reversed, or, in the alternative, reduced as being excessive.

The record discloses that the incident occurred at approximately 2:00 a. m. on June 10, 1975, in the parking lot adjoining Joe Reed’s bar in Baton Rouge. As Landry was leaving the bar, he became involved in an altercation with Donald Donahue, another patron at the bar and also a friend of Davis. Donahue, in the course of the fight, shattered a cocktail glass against Landry’s face. However, Landry quickly gained a superior position on the ground on top of the smaller and lighter Donahue. Landry then began delivering unanswered blows to Donahue’s head and face.

Davis contends that he was in a crowd around the fighters, and that he shouted twice to Landry to stop the fight. Landry denies hearing Davis’ shouts. In any event, when Landry did not stop hitting Donahue, Davis stepped from the crowd and kicked Landry in the face. Landry continued fighting and Davis kicked him in the face a second time. After this second kick, the fight ended and Landry was taken to the hospital for medical attention.

Landry thereafter instituted this suit for damages against Davis.

Davis contends that his actions were justified and privileged as he acted in defense of another, Donahue, who was receiving a beating.

One may use force to defend another without thereby incurring civil liability. Goodwin v. Beene, 147 La. 177, 84 So. 579 (1920). Duncan v. Tanner, 85 So.2d 685 (La.App.Orl.Civ.1956). See also Bond v. Toriello, 260 So.2d 727 (La.App. 4th Cir. 1972), writ denied 262 La. 189, 262 So.2d 788 (1972). Gf. LSA-R.S. 14:22.

However, this privilege is not without qualification, so that one’s actions must be reasonable and not accompanied by excessive force. Bond v. Toriello, supra; McKellar v. Mason, 159 So.2d 700 (La.App. 4th Cir. 1964), writ denied 245 La. 1075, 162 So.2d 571 (1964), and cases cited therein.

In the present case, we find, as did the trial court, that Davis used excessive force. Thus, his actions were not privileged. The trial court was therefore correct in holding Davis liable for the injuries he inflicted on Landry.

On the issue of quantum, Landry contends the award is inadequate and Davis contends that it is excessive.

We find inapposite the numerous cases cited by Landry in support of an increase in damages. Though Landry sustained some disfigurement as a result of the incident, the trial judge noted that the scars were relatively minor. Additionally, we believe that there is considerable uncertainty regarding the exact origin of the scarring injuries, i. e. from the shattered cocktail glass or from Davis’ kicks. Therefore, we do not believe any increase in damages for disfigurement is warranted. Additionally, we decline to award damages for loss of earnings as the record indicates that Landry has failed to substantiate his claim.

We find that the trial court’s award is neither excessive nor inadequate.

From the reasons assigned, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    JACK ECKERD CORPORATION v. COLLECTOR OF REVENUE.
    No. 11551.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Ben R. Miller, Jr., Baton Rouge, of counsel for plaintiff-appellant Jack Eckerd Corp.
    Allen J. Bergeron, Jr., Baton Rouge, of counsel for defendant-appellee Collector of Revenue.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This appeal involves the interpretation of Louisiana’s Chain Store Tax LSA-R.S. 47:1121 et seq.

In November of 1974, the Collector of Revenue for the State of Louisiana notified the Jack Eckerd Corporation (Eckerd), a Florida corporation not qualified to do business in the State of Louisiana, that it was being assessed for deficiencies in chain store tax for the years 1971 through 1974 in the amount of $72,610.00, plus interest.

Eckerd filed a petition with the Board of Tax Appeals on December 26, 1974, seeking to have the assessment vacated on the following grounds:

“(A) The Chain Store Tax, Louisiana Revised Statutes 47:1121 et seq asserts a tax which is not applicable to petitioner;
(B) Alternatively, and solely in the event that the foregoing objection is not sustained, petitioner asserts that the base for the chain store tax should not include stores which are not compatible in size or type of merchandise sold.”

Following a hearing before the Board, judgment was rendered on August 19,1976, upholding the original assessment to the extent of $69,750.00 less a credit of $4,240.00 or a total of $65,510.00 plus interest.

On September 17, 1976, Eckerd filed a petition in the Nineteenth Judicial District Court seeking review of the Board’s decision. The district court rendered judgment on April 7, 1977, affirming the previous judgment of the Board of Tax Appeals.

Eckerd has brought this appeal from the adverse judgment of the district court.

The record indicates that Eckerd has forty-one (41) wholly owned subsidiary corporations in Louisiana. Each of these Louisiana corporations owns one to three retail drug stores in this state. These various retail drug stores are managed by another Eckerd subsidiary, Brown’s Thrift City Wholesale Drugs, Inc., (Brown). Brown is also a Louisiana corporation and 100% of its capital stock is owned by Eckerd. Neither Brown nor Eckerd directly own any retail drug stores in Louisiana.

Eckerd contends that the Collector’s assessment is erroneous as Eckerd neither operates nor maintains any chain stores in Louisiana.

The chain store tax imposes a tax liability on any person who is in the business of operating or maintaining a chain store in this state. LSA-R.S. 47:1121. A chain store is defined by the statute as a store where goods etc. of every description are sold or offered for sale at retail, and which is operated as a part of a group or chain under the same general management, supervision, ownership or control. A “person” within the meaning of the statute includes a corporation. LSA-R.S. 47:2(2).

The applicability of the tax in the instant case rests upon a factual determination of whether or not Eckerd was in the business of operating or maintaining a chain of retail drug stores in this state during the years in question. We respond to this in the affirmative.

The evidence adduced by the Collector at the hearing before the Board consisted mainly of the testimony of Mrs. Carol Bor-delon, an auditor with the State Department of Revenue who had conducted an audit in August of 1974 of Jack Eckerd Corporation in connection with chain store taxes. Mrs. Bordelon stated that her audit disclosed that numerous management functions for the various drug stores in Louisiana were being performed by Eckerd. She further stated that all records for the various corporations and stores were kept in Florida at Eckerd’s home office.

Mrs. Bordelon testified that all the accounting services for the Louisiana stores were performed by Eckerd, that Eckerd maintained a complete computer data center to perform the various accounting, purchasing, record keeping and inventory services for the various stores. She further testified that Eckerd prepared the tax reports for the individual stores and, in addition, cumulated and paid the sales taxes and other taxes required of the various stores with one check drawn on its own account. She stated that Eckerd provided the internal auditing services, legal services and advertising services for all the stores. She stated that while most of the cost of services performed by Eckerd were allocated against the subsidiaries, some, including corporate tax department services, corporate counsel services, financial vice-president services and high powered accountant services, were not allocated. Finally, Mrs. Bordelon testified that the ultimate decision making authority regarding new stores and their locations rested with Eckerd, who maintained a staff charged with expansion.

Additional testimony at the hearing revealed that substantially all the funds generated by the various stores are automatically transferred to one of several Eckerd accounts in Florida. From these accounts, Eckerd pays the payroll expenses and purchasing expenses of the various stores.

Eckerd offered the testimony of Anthony Spedale, Brown vice-president and chief administrative officer, to explain the chain-of-command with regard to the Louisiana stores. Spedale stated that Brown, not Eckerd, hires and fires the pharmacists, managers, and staff for each store in Louisiana; controls the liquor licenses in the Louisiana stores; and controls the hours of operation for each Louisiana store.

However, Spedale conceded that some merchandise for the Louisiana stores is supplied from an Eckerd subsidiary in Houston. Spedale further conceded that he is directly responsible to the divisional manager of Eckerd for the operation of the Louisiana stores. Additionally, Spedale conceded that he receives miscellaneous operational guidelines, which originate from regional or divisional conferences of the managers of the various Eckerd subsidiaries.

The Board concluded, based on all the evidence before it, that Eckerd was in fact “operating or maintaining” the Louisiana stores through the performance of various management functions; and that this activity subjected Eckerd to chain store tax liability. The lower court affirmed. We agree. We find that there is ample evidence in the record to support the conclusion. Canter v. Koehring Company, 283 So.2d 716, (La.1973).

Finally, Eckerd argues that the drug stores in Louisiana fall into distinct categories; one composed of “full line stores” and the other containing “minisize stores.” Eckerd cites the case of Great Atlantic and Pacific Tea Company v. Grosjean, 301 U.S. 412, 57 S.Ct. 772, 81 L.Ed. 1193 (1937), in support of its contention that the Collector must treat the two types of stores in Louisiana as separate categories, applying different chain store tax bases to each. We find the A&P case inapposite on this point.

We can find nothing in the statute or in Louisiana law to substantiate the distinction asserted by Eckerd. On the contrary, the clear wording of LSA-R.S. 47:1122 states that the tax “shall be based on the number of stores or mercantile establishments included under the same general management, supervision, ownership or control . . . ”

We therefore reject Eckerd’s contention as all the stores in question were under 'the same control.

For the above reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

      . The Chain Store Tax was repealed by La. Acts 1974, No. 706, § 1. The present suit involves taxable years prior to the repeal.

      . Prior to its repeal, LSA-R.S. 47:1121 provided:
      “Because of the advantages accruing from the operation of multiple stores wherever situated, and because of the basic difference inherent in such character of operation, there is hereby levied an annual license tax for the year 1951 and for each subsequent year upon each person engaged in the business of operating, or maintaining, as part of a group or chain, any store or stores in this state where goods, wares, merchandise or commodities of every description whatsoever are sold or offered for sale at retail under the same general management, supervision, ownership or control, commonly known as branch or chain stores.
      The license herein prescribed shall be in addition to ad valorem taxes and other licenses prescribed in this Title or any other laws of this state.” (emphasis supplied)

      .There were 25 Louisiana subsidiaries in 1971; 32 in 1972; 37 in 1973; and 41 in 1974.

      . There were 43 stores in Louisiana in Z 971; 49 in 1972; 55 in 1973; and 59 in 1974.

      . Ownership is not an essential element for application of the tax.


author: PONDER, Judge.

text:
    Dan D. HARRIS ex ux. v. Charles B. BUCK et al.
    No. 11558.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    James B. Supple, Franklin, for plaintiffs.
    J. Louis Gibbens, Caffery, Duhe, Oubre & Gibbens, New Iberia, for American & Foreign Ins. Co.
    L. Albert Forrest, Roy & Forrest, New Iberia, for State Farm Mutual Automobile Ins. Co. and Charles Buck.
    Thomas L. Mahfouz, Lippman, Hunter & Rawls, Morgan City, for Charles Buck.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit for damages resulting from an automobile accident. Plaintiffs have appealed a summary judgment in favor of American & Foreign Insurance Company which limited its uninsured motorist coverage to $10,000.00.

The issue is whether the lower court erred in granting defendant’s motion.

We reverse and remand.

The defendant, Charles Buck, evidently “sideswiped” a motorcycle and ran into the rear of plaintiffs’ automobile. Mrs. Harris alleges serious injuries.

At the time of the accident defendant carried liability insurance with State Farm in the amount of $5,000.00. Plaintiffs made American and Foreign Insurance Company, their insurer, a co-defendant alleging that their damages were over $5,000.00.

American and Foreign admits that it has exposure for personal injuries over the amount of $5,000.00, up to the limits of the policy, but asserts that the limit is $10,-000.00.

The insurance application and the policy show that the uninsured motorist limits to be $10,000.00. Mr. Harris contends that the coverage should be $100,000.00, the amount of his liability coverage.

LSA-R.S. 22:1406 D(l) requires that the uninsured motorist coverage equal the liability coverage unless the insured rejects the coverage or selects lower limits.

Both parties filed motions for summary judgment. Plaintiffs introduced as exhibits an affidavit executed by Mr. Harris as well as his deposition, in which he stated that he was never given an opportunity to select a different amount of uninsured motorist coverage. In opposition, the defendants introduced the application of the insured showing on its face uninsured motorist coverage in the amount of $10,000.00, and the affidavit of Mr. Bruce Baine, manager of the insurance company’s New Orleans office, who said that Mr. Harris had selected uninsured motorist coverage in the amount of $10,000.00.

Plaintiffs have argued that the policy application is inadmissible because it was not attached to and made a part of the policy itself, and they have also argued that the affidavit of Mr. Baine should be excluded because it was not based on personal knowledge. While we believe there are serious questions as to the admissibility of the application and the effectiveness of the affidavit, a ruling on these issues is not necessary.

The pleadings, depositions and affidavits must show that there is no genuine issue of material fact for a summary judgment to be appropriate. LSA-C.C.P. Art. 966. Any doubt which exists must be resolved by denying the motion for summary judgment. McLain v. Zurich Insurance Co., 220 So.2d 148 (La.App. 3rd Cir. 1969) writ refused, 254 La. 13, 222 So.2d 67.

A genuine issue of fact exists as to whether or not Mr. Harris actually selected the lower limits of uninsured motorist coverage. The issue is one that should be determined at trial on the merits, and not through the motion for summary judgment.

For the above reasons, the judgment of the trial court is reversed, and the case is remanded to the district court for proceedings not inconsistent with this opinion. Defendant is taxed with all costs of this appeal.

REVERSED AND REMANDED.

      . “D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
      (l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, . . . resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.”

      . At least some of the statements made in the affidavit are evidently based on information given by others to Mr. Baine; at any rate there is no assertion that the statements are made on personal knowledge. Furthermore, at least some of the statements are of conclusions rather than of facts.


text:
    James D. WILLIE v. OTASCO and Insurance from CNA.
    No. 11528.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Mike J. Balen, James R. Jenkins, Coving-ton, for plaintiff, appellee.
    Frederick R. Bott, New Orleans, for defendants, appellants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is a suit for workmen’s compensation benefits brought by James D. Willie against Otasco and Insurance from CNA. The trial court rendered a default judgment; and the defendants have appealed.

This case was before us previously on a motion to dismiss the appeal, Willie v. Otasco, 347 So.2d 1215 (La.App. 1st Cir. 1977). At that time, we dismissed the defendants’ suspensive appeal as untimely, but maintained their devolutive appeal. The case is now before us for consideration on the merits.

Our re-examination of the record has revealed a further defect in defendants’ appeal, not raised at the motion to dismiss, which necessitates that we dismiss the appeal. We lack jurisdiction to hear the appeal as we now find that the appeal bond was not filed timely.

The chronology of this suit indicates that plaintiff filed his petition on June 4, 1976. On November 2, 1976, plaintiff caused a preliminary default to be entered against the defendants because they had failed to file an answer. On November 12, 1976, counsel for plaintiff proceeded to confirm the default and the judgment was signed that date. Notice of judgment was subsequently served on the defendants on December 2nd and 3rd 1976.

On December 8, 1976, defendants filed a motion for a new trial. This motion was denied on January 14, 1977.

The defendants filed their appeal bond on February 14, 1977.

We find that the defendants were not entitled to notice of the default judgment, though such notice was actually sent.

Notice of the signing of a default judgment against a defendant, who filed no exceptions or answer, is required only when the defendant has not been served personally. LSA-C.C.P. art. 1913. In the instant case, both defendants received personal service. Rue v. Messmer, 332 So.2d 591 (La.App. 4th Cir. 1976), writ denied 337 So.2d 525 (La.1976). Consequently notice of judgment was not required.

Therefore, the delay for applying for a new trial began on November 15, 1976 and expired on November 23, 1976. LSA-C. C.P. art. 1974. No application for a new trial was filed timely.

The delay for perfecting an appeal began on November 24, 1976, since no application for a new trial was filed timely. LSA-C. C.P. art. 2087(1).

The untimely application for a new trial, filed December 8, 1976, did not affect, interrupt or extend the delay for appealing. Reeves v. Reeves, 315 So.2d 162 (La.App. 1st Cir. 1975).

The last day on which the defendants could have perfected their devolutive appeal was January 24, 1977. However, they did not file their appeal bond until February 14, 1977, which was 21 days too late.

As no appeal bond was filed timely we lack jurisdiction to hear the appeal. Something Irish Co. v. Rack, 333 So.2d 773 (La.App. 1st Cir. 1976); LSA-C.C.P. art. 2088.

For the above reasons, the appeal is dismissed at appellants’ cost.

APPEAL DISMISSED.


author: JONES, Judge.

text:
    Mavoureen Green BALL, Plaintiff-Appellant, v. Dr. James H. SIESS, Defendant-Appellee.
    No. 13348.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    Campbell & Campbell by L. G. Campbell, Bossier City, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by C. Gary Mitchell, Shreveport, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff appeals the dismissal of her action for damages against a dentist for allegedly improperly fitting her for dentures. The trial court held plaintiff’s petition alleged an action in tort which had prescribed by the lapse of one year. LSA-C.C. Art. 3536. The case was decided on the basis of the allegations in the petition as no evidence was offered in support of defendant’s plea of prescription. We affirm. The following facts have been extracted from the allegations of the petition.

On December 24, 1974, plaintiff was fitted by defendant for a set of dentures. The dentures were uncomfortable at the time of the initial fitting but plaintiff was told with continued use the discomfort would disappear. The dentures remained painful and plaintiff returned to defendant’s office four times during the nine month period following acquisition of the dentures. On each occasion she complained of pain and inability to chew her food and attempted to get defendant to make some alteration or adjustment to the dentures in order that she could successfully wear them pain-free and be able to chew her food. Defendant on each of the visits told her the dentures were properly fitted and continued use would resolve the problems. Plaintiff alleges on the third visit defendant rudely invited her out of his office, and on the fourth visit in August, 1975, he unequivocally advised her he had no intention of making adjustments to her false teeth. Plaintiff then went to another dentist who examined her dentures, advised they were improperly fitted and attempted unsuccessfully to fit the dentures. On September 12, 1975, she went to a third dentist who adjusted the dentures to plaintiff’s satisfaction. Suit was filed September 14, 1976, for costs of adjustment by the other dentists, for physical pain and mental anguish endured by wearing the improperly fitted teeth and for humiliation and embarrassment due to the verbal abuse by defendant.

The issue on appeal is whether plaintiff’s action is in tort to which one year prescription applies or in contract to which ten years prescription applies.

In the decision of Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963), the Supreme Court recognized as a general rule that a physician who undertakes the treatment of a patient does not guarantee a cure, nor does he promise to effect a cure, nor does his undertaking employment result in any implied promise to cure. The court therein stated:

‘ “ * * * For this reason a physician cannot be held up to a standard of civil responsibility similar to that of engineers, mechanics, and shipbuilders. Of course a physician might contract specifically to cure and he would be liable on his contract for failure, but, in the absence of such a special and peculiar contract, the fact that treatment has resulted unfavorably does not even raise a presumption of want of proper care, skill, or diligence. . ” ’ Id., 150 So.2d page 37

Plaintiff argues that a dentist’s services in the preparation and fitting of dentures are not like a physician’s but are comparable to that rendered by engineers, mechanics, and shipbuilders and for this reason all causes of action resulting from improper performance of these services are based solely on contract. In order to construct and fit dentures a dentist is required to possess knowledge of the human anatomy, in particular the teeth, bones, nerves, blood vessels and gums of the mouth. The court in Phelps, which dealt with an orthodontist, recognized a dentist was like a physician and is not an insurer or guarantor of results in the absence of an express agreement. The court found there can be no implied contract by a doctor, the breach of which would give rise to an action in contract and prescribe in ten years. See also Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App., 3d Cir. 1974), writ denied, 315 So.2d 144 (La.1975) and Dauzat v. St. Paul Fire & Marine Insurance Company, 336 So.2d 540 (La.App., 3d Cir. 1976).

Plaintiff’s petition contains no allegations of an express contract between the parties whereby defendant warranted to plaintiff a particular result. The only allegation concerning a contract was plaintiff’s agreement to pay defendant $350 for his services. This agreement to pay for services without additional allegation of a specific agreement by defendant to warrant a particular result is insufficient to give rise to a contract action.

Plaintiff cites Phelps v. Donaldson, supra; Dauzat v. St Paul Fire & Marine Insurance Company, supra and Creighton v. Karlin, 225 So.2d 288 (La.App., 4th Cir. 1969) as authority for her position that her cause of action is one in contract rather than in tort. The Phelps and Dauzat cases require an express, specific agreement for a particular result before the action can be categorized as one in contract. Plaintiff failed to allege this type of agreement and these cases are contra to her position.

The Creighton case does support plaintiff’s theory and provides the failure of a physician to treat his patient with the care and skill prevailing in the community constitutes a breach of an implied contract and the patient can assert a contractual cause of action which would be governed by a prescriptive period of ten years. We decline to follow Creighton because it is contra to Phelps, Steel and Dauzat.

Plaintiff’s dental malpractice action is in tort and the applicable prescriptive period is one year from the time she had actual or constructive knowledge of the tortious act, the damage, and the causal relation between the tortious act and the damage. LSA-C.C. Art. 3536; Quick v. Aetna Casualty & Surety Company, 347 So.2d 59 (La. App., 2d Cir. 1977).

The record reflects the possibility that plaintiff discovered the tortious conduct as early as January, 1975, when she returned to defendant complaining of pain with her new dentures. At least by August, 1975, plaintiff had discovered defendant had improperly fitted the dentures and at the latest by September 12th when the third dentist satisfactorily adjusted her dentures. Suit was not filed until September 14,1976, more than one year from plaintiff’s actual knowledge of the tortious conduct, the damage and their causal relation. Plaintiff’s action in tort is prescribed. LSA-C.C. Art. 3536.

For the reasons assigned, judgment is affirmed at plaintiff’s cost.


author: HALL, Judge.

text:
    Stanley GARISON, Jr. and Clif Mock Company, Plaintiffs-Appellants, v. BOSSIER PARISH POLICE JURY, United States Fire Insurance Company and John T. Bearden, Defendants-Appellees.
    No. 13349.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.

      Donald R. Miller, Shreveport, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, for defendants-appellees.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

Plaintiffs appeal from the trial court’s denial of their claims for personal injury and property damage arising out of a vehicular collision. The decision was based on a finding that plaintiff was contributorily negligent. We affirm.

In well-stated reasons for judgment, the trial court accurately and concisely stated the case, the facts, and the manifestly correct conclusion that plaintiff was contribu-torily negligent:

“This lawsuit arises out of an accident that occurred on May 19,1976, at about 3:20 P.M. at a point approximately IV2 miles south of Bellevue on the Bellevue-Red Chute Road when the pickup truck driven by the plaintiff, Stanley Garison, Jr. and owned by plaintiff Clif Mock Company, crashed into the rear of a 15 yard loaded dump truck owned by the Bossier Parish Police Jury and driven by John T. Bearden. Made defendants are Bearden, the Police Jury and their insurer, United States Fire Insurance Company of New York.

“The essential facts are that on the day in question, the Police Jury was engaged in making certain repairs to this road at the place where the accident occurred. Trucks were hauling iron ore in, dumping it on the road and other equipment was spreading and packing the dirt. The weather was clear and very dry, and as the trucks would approach the work area, clouds of dust would be kicked up. Both the Parish truck and the plaintiffs’ truck were being driven south, and a sign was placed on the road just as it is entered south of Bellevue announcing that road construction was ahead. The Parish truck arrived at the scene and stopped in the road. To its left in the other lane was a compacting machine so that both lanes of travel were blocked. As the truck arrived, it had kicked up a cloud of dust. The plaintiff vehicle was behind the truck, and as the plaintiff vehicle turned off on this road just south of Bellevue, another vehicle was between the plaintiff and the Parish truck. This vehicle was driven by Mrs. Mildred Smith, who was called as a witness for the plaintiffs. Mrs. Smith testified that the Parish truck kicked up dust and she slowed. She said that plaintiff passed her and that she was going approximately 30 to 35 miles per hour at the time, and that she slowed to about 20 miles per hour when plaintiff passed. A short distance later, plaintiff topped a small hill and through the dust ahead, he and his passenger could see the outline of the Parish truck. The evidence shows that the distance from the top of the hill to the place of impact was 230 feet. Plaintiff was unable to stop his vehicle in time and crashed into the rear of the Parish truck.

“Under these facts, even though there were no flagmen on the road and the Parish vehicles completely blocked both lanes of travel, the Court is of the opinion that the plaintiff Garison was nevertheless guilty of contributory negligence so as to bar recovery. The dust was thick and obscured his vision. He passed another vehicle who had been following the Parish truck at a safe distance. The road was obviously under construction and yet he drove into the dust at such speed that he was unable to stop his vehicle within 230 feet.”

Appellants accept the trial court’s findings of fact and implied finding of negligence on the part of the Police Jury as correct, but argue that the finding of contributory negligence was error. It is argued that plaintiff had the right to assume the road was clear and that the blocking of the road by Police Jury employees without adequate warning was the sole cause of the accident.

The Police Jury’s failure to provide adequate warnings of the particular hazard created by it was negligence and was a cause of the accident. LSA — R.S. 32:235; Ardoin v. State, Department of Highways, 333 So.2d 412 (La.App.3d Cir. 1976), writs refused 337 So.2d 528 (1976). However, the plaintiff’s failure to operate his vehicle with a high degree of care, to reduce his rate of speed and to keep his car under such control as to reduce to a minimum the possibility of accident, in view of the obvious road construction, the presence of parish vehicles on the road, the bad condition of the road, and particularly the limited visibility caused by heavy dust, also constituted negligence which was a contributing cause of the accident. Hernandez v. State Farm Mutual Automobile Insurance Company, 192 So.2d 679 (La.App.3d Cir. 1966), writs refused 250 La. 103, 194 So.2d 99 (1967); Dove v. Messina, 230 So.2d 615 (La.App.lst Cir. 1969), writ refused, 255 La. 471, 231 So.2d 392 (1970).

The judgment is affirmed at appellants’ costs.

Affirmed.


text:
    Roberta Daulong CALLOWAY, Plaintiff-Appellee, v. George W. CALLOWAY, Defendant-Appellant.
    No. 13350.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    Love, Rigby, Dehan & Love by Kenneth Rigby, Shreveport, for defendant-appellant.
    Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

Defendant appeals from a judgment increasing his former wife’s alimony from $200 to $400 per month. The parties were divorced in 1962, at which time the wife was awarded $200 per month. See Calloway v. Calloway, 139 So.2d 55 (La.App. 2d Cir. 1962). There was no reconsideration or change in the alimony award for 15 years with the exception of three months during the summer of 1969 when the wife was awarded an additional $150 per month to assist her in going to school.

Appellant contends the trial court erred in granting appellee an increase in alimony in that (1) appellee failed to prove the requisite change of circumstances; (2) the trial court considered the increase in appellant’s gross income without considering the additional taxes withheld therefrom; (3) the former wife’s termination of employment was not considered; and (4) in any event the increase was disproportionate to the change in circumstances of the parties.

Appellant testified his take-home pay in 1962 was $884 per month. The appellate opinion cited above states that his take-home pay was $686 at that time. Regardless, appellant's income as an engineer for a manufacturing company had increased to approximately $27,000 per year at the time of trial in early 1977, with approximately $6,000 payable for taxes, or a net income of approximately $21,000 per year, or $1,750 per month. Appellant’s monthly expenditures, including some regular savings, repayments on loans, alimony, and the usual other expenses approximate his net income. Appellee estimated her current monthly expenses at $563.88 per month, including a house payment, groceries and sundries, utilities, automobile expenses and medical expenses, all in reasonable amounts. There was no evidence offered at the trial of the rule to increase alimony as to her expenses in 1962, but considering inflation and referring to the appellate opinion in the 1962 proceedings, it is apparent that there has been an increase in her expenses. The record supports a finding that there have been changes in circumstances resulting in increased needs on the part of appellee and an increased ability to pay on the part of appellant.

Although the trial court mentioned appellant’s gross income in oral reasons for judgment given at the conclusion of the trial, there was adequate evidence adduced as to his income after taxes and there is no reason to believe the trial court did not take into consideration appellant’s tax liabilities.

Appellee was not employed at the time the original alimony award was made and has been employed only briefly since that time. Her only significant employment was during the school year of 1970-1971 when she worked as a full-time classroom teacher on a substitute basis outside of her field of study and she was not reemployed at the end of that school year. The record does not indicate that appellee has ever been or could ever be regularly, gainfully employed, although she did obtain a degree in music education after the parties divorced. The fact that appellee did not continue her brief and sporadic employment and is not currently employed does not reduce the husband’s obligation to pay alimony. Ward v. Ward, 339 So.2d 839 (La.1976).

The record establishes appellee’s need for an additional $200 per month and the appellant’s ability to pay that additional amount. While perhaps at the maximum limit, the amount awarded does not exceed one-third of appellant’s income, is not unreasonable, and is within the trial court’s discretion. The judgment is affirmed at appellant’s costs.

Affirmed.


author: BOLIN, Judge.

text:
    Leon WHATLEY, Plaintiff-Appellant, v. RED BALL MOTOR FREIGHT, INC., Defendant-Appellee.
    No. 13351.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.

      Richie & Kernaghan by Edward O. Ker-naghan, Shreveport, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

Plaintiff appeals as inadequate the judgment awarded him for personal injuries and property damage incurred as the result of a rear end collision between his pickup truck and defendant’s van. Contesting the trial court finding of liability as well as the excessive amount of its award, defendant answers the appeal. We affirm.

The issues are factual: (1) Did the accident happen as related by the plaintiff? (2) If so, was the amount awarded for plaintiff’s injuries supported by the evidence?

In a well-reasoned opinion the trial court determined defendant’s bobtail van struck the rear of plaintiff’s stopped pickup and pushed it forward approximately five feet. Both vehicles were waiting to enter a heavily traveled city street from an industrial alley when the collision occurred. In making its finding the trial court accepted plaintiff’s version of the cause of the accident. Defendant’s witnesses testified plaintiff's truck rolled back into the van. Since there is a reasonable factual basis for the trial court’s finding, we will not disturb it on review. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

In fixing the amount of damages to be awarded plaintiff for his injuries, the trial court relied on the testimony of plaintiff’s orthopedic surgeon. This medical expert diagnosed an acute mild to moderate sprain of the lower back, superimposed on a degenerative disc disease. His opinion was that the back sprain received in this accident had residual effects for twelve to sixteen weeks after the accident, but no influence on plaintiff’s subsequent condition of disability requiring disc surgery.

The uncontradicted testimony of plaintiff’s doctor, the admitted fact of plaintiff’s involvement in a more serious rear end collision three months previously, and the minor nature of this second accident indicate the trial court was well within its discretion in awarding plaintiff $3,788.76 for personal injuries and damage to his vehicle. Louisiana Civil Code Article 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Plaintiff argues the trial court, by not granting him a more substantial award, has ignored the legal principle that the tort-feasor takes his victim as he finds him. However, a tortfeasor is liable only for the direct and proximate results of his wrongful act. Plaintiff has failed to prove either a causal connection between the accident in question and his subsequent back problems, or an aggravation of a pre-existing condition by this accident. See Comeaux v. Barksdale, 342 So.2d 1181 (La.App. 1st Cir., 1977) and cases cited therein.

The judgment is affirmed at appellant’s cost.


text:
    COMMERCIAL CREDIT EQUIPMENT CORPORATION, Plaintiff-Appellant, v. PEOPLE’S LOAN SERVICE, INC., Defendant-Appellee.
    No. 13352.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.

      Eric R. Harrington, Natchitoches, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Louis D. Smith, Monroe, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff seeks to hold defendant personally liable for a debt because defendant provoked the judicial sale of property subject to plaintiff’s chattel mortgage. The trial court sustained defendant’s exception of no cause of action and dismissed plaintiff’s suit. Plaintiff appeals and we affirm.

Plaintiff’s debtor financed the purchase of a bulldozer, securing his loan with a chattel mortgage on the equipment. When its debtor became delinquent on the loan payments, plaintiff obtained a writ of seizure and sale pursuant to executory proceedings in Bossier Parish. However, the sheriff was unable to locate and seize the bulldozer because it had somehow passed into the hands of defendant’s debtor in Ouachita Parish.

In due course, defendant obtained a judgment against its debtor. The bulldozer, along with other items, was seized and sold to satisfy the judgment. After learning of this disposition of its security and more than six months after the sheriff’s sale, plaintiff filed the present suit for the balance due on its promissory note plus interest and attorney fees.

Plaintiff alleges defendant became indebted for the full amount of the note secured by mortgage on the bulldozer when it caused the judicial sale of the equipment and placed it beyond plaintiff’s reach. The petition does not allege defendant acted fraudulently to defeat plaintiff’s rights, but only that defendant received the proceeds of the sale of property which was subject to a superior mortgage.

Plaintiff apparently contends defendant incurred personal liability by tor-tiously converting property in which plaintiff claimed a valid security interest. Conversion, a wrongful act, cannot spring from the exercise of a legal right, i. e., execution on a judgment. See Hopper v. Bills, 255 La. 628, 232 So.2d 296 (1970), and cases cited therein. Absent allegations of wrongful conduct, plaintiff has failed to state a claim for which relief can be granted against this defendant. Furthermore, plaintiff’s security interest has not been defeated, since the bulldozer remains subject to plaintiff’s chattel mortgage in the hands of the purchaser at the sheriff’s sale. Louisiana Civil Code, Article 3399; Louisiana Revised Statutes 9:5363; Plauche, The Pact De Non Alienando in Louisiana, 21 Tul.L.Rev. 238 (1946).

The judgment is affirmed at appellant’s cost.


author: PRICE, Judge.

text:
    Cheryl Renna PADDIE, Plaintiff-Appellee, v. Howard Dwaine PADDIE, Defendant-Appellant.
    No. 13354.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    Nesib Nader, Shreveport, for defendant-appellant.
    Freeman & Hall by J. Stacey Freeman, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Howard Dwaine Paddie has appealed the judgment awarding his wife, Cheryl Renna Paddie, a separation on grounds of cruel treatment. The sole allegation of fault against defendant is that he moved plaintiff into the residence of his parents and that she was unable to endure such a situation.

We reverse.

The parties were married on June 4,1976, and immediately established a residence at Egan Arms Apartments in Shreveport under a six-month written lease. At the termination of the lease, defendant was unwilling to renew for an additional six months as he understood his wife was not happy at this location. Defendant had not taken any steps to procure another apartment and was confronted with vacating the premises immediately. He made arrangements with his parents for himself and his wife to stay at the parents’ residence until he could find a suitable place. Defendant contends and the evidence establishes that his wife agreed to this temporary arrangement.

On the sixth day after moving in with defendant’s parents, plaintiff moved out and has not returned.

Plaintiff contends defendant made no effort to find another apartment during this time, and that he was content to remain in his parents’ home.

Defendant testified he was working during the day and attending school at night which had made it difficult for him to find a place in such a short period of time. He further testified that after plaintiff moved out of his parents’ house, he offered to sell his truck and boat to enable him to purchase a home if plaintiff would agree to return. Plaintiff admits she rejected this offer as she did not feel defendant could afford to purchase a home. Plaintiff also admits in her testimony that defendant’s parents treated her well and were nice to her during her brief stay in their home.

Although the Supreme Court in Cormier v. Cormier, 193 La. 158, 190 So. 365 (1939), acknowledged the cruel treatment of a husband who forced his wife to live in close proximity with his parents, the hostility of the husband’s parents toward the wife in that case is a dispositive factor not found in the present case and has been distinguished as such by the Supreme Court in Artigues v. Artigues, 172 La. 884, 135 So. 665 (1931).

The premise underlying the rule that a husband must provide a home separate from his parents is based upon the possible problems and conflicts arising between the wife and the parents. Under the present facts, the problems experienced by the parties arose before they moved into his parents’ house, and there is no evidence that any new problems were caused by living the few days with his parents.

The circumstances presented do not entitled plaintiff to a judgment of separation on grounds of cruel treatment casting defendant with fault.

Defendant has in brief to this court indicated he has withdrawn his demand in re-convention for a separation on the grounds of constructive abandonment.

For the reasons assigned, the judgment appealed is reversed insofar as it awarded plaintiff a separation from bed and board and her demands are rejected. The judgment rejecting defendant’s reconventional demand is affirmed. Cost of these proceedings are assessed to defendant.


text:
    Bobby D. McDANIEL et ux., Plaintiffs-Appellants, v. Christian MOORE, Charles Hoyer, Jr., and Allstate Insurance Company, Defendant-Appellee.
    No. 13360.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    Fayard & Beam by Michael W. Beam, Bossier City, for plaintiffs-appellants.
    Nelson & Achee, Ltd., by Frank M. Dodson, Shreveport, for defendant-appellee Allstate Ins. Co.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Plaintiffs have appealed the judgment sustaining a motion for summary judgment and rejecting their demands against their insurer under the uninsured motorist coverage of the insurance policy.

Plaintiffs, husband and wife, allege they were injured while riding a motorcycle on Barksdale Boulevard in Bossier City when a horse suddenly ran into their path and collided with the motorcycle. Suit was brought against the owner of the horse, the operator of the stable where the animal was kept, and Allstate Insurance Company, plaintiffs’ liability insurer.

Allstate moved for a summary judgment contending there was no genuine issue of fact since the uninsured motorist provisions of its policy only afforded coverage to injuries caused by a motor vehicle and not damages caused by an animal.

Plaintiffs opposed the motion by affidavit declaring the agent who sold them the policy represented that the uninsured motorist coverage protected them from any injuries caused by the negligence of a third party.

On appeal, plaintiffs reurge this contention and contend the policy should be reformed to conform to the agent’s guarantee. They also urge certain policy language would afford coverage if the horse were shown to be farm equipment designed for use principally off the public roads.

Neither of plaintiffs’ arguments have merit. The representations of an insurance agent cannot be used to extend the coverage beyond that provided by the written policy of insurance. LSA — R.S. 22:628. Also see Smith v. Republic National Life Insurance Company, 335 So.2d 739 (La.App.2d Cir. 1976).

The definition of an .“uninsured automobile” as contained in the policy is clearly restricted to a motor vehicle, and plaintiffs’ argument relating to “farm equipment” is based solely on an exclusion of certain motorized equipment within the classification of motor vehicles which does not pertain to farm animals.

The judgment is affirmed at appellants’ costs.


text:
    Frank J. SPEARMAN, Plaintiff-Appellant, v. Jack E. BARRON et al., Defendants-Appellees.
    No. 13362.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.

      John Paul Woodley, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., and Richard H. Switz-er, Shreveport, for defendants-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff appeals a judgment awarding him $750 for physical injuries, $39 medical expenses and $300 property damage. He argues the awards are inadequate and fail to include any sum for loss of wages. We increase the property damage award to $535.50, and with this modification, affirm the trial court judgment.

On August 9, 1975, plaintiff was involved in an accident while driving his 1964 MGB automobile. Defendants admitted liability and the only issue presented was the amount of damages plaintiff should receive.

The trial judge made the following findings of fact in his written reasons for judgment:

“The original accident occurred on the 9th day of August, 1975. Eleven days later plaintiff was involved in another automobile accident on the 22nd day of August, 1975. The court’s problem was to determine the amount to award for the physical injuries to the plaintiff under these circumstances. The court, observing the demean- or of the witnesses and judging the credibility of the same is of the opinion that the physical injury to the plaintiff was slight and that an award in the amount of $750.00 would be reasonable to compensate for the physical injuries to the plaintiff.

“The Court also had the difficulty of establishing the medical costs attributable to the accident of the 9th of August. The Court feels the sum of $39.00 was proven by the plaintiff as medical costs attributable to the accident at issue. . . .”

Plaintiff suffered neck pain immediately following the rear end collision and on August 11 went to his physician, who x-rayed his cervical spine. The x-rays reflected no injury. The physician found, upon examination “no appreciable muscle spasm in plaintiff’s neck”, and diagnosed plaintiff’s injury as a mild cervical sprain. Plaintiff was charged $39 for these medical services. He did not return to this physician for further examination or treatment.

Following the second accident plaintiff was seen once by an orthopedic surgeon and several times by a neurosurgeon. He incurred medical expenses following the accident of August 22 of $296. Plaintiff testified he received no injury in the second accident which did approximately $500 damage to his automobile.

The trial court found plaintiff sustained only a slight injury and this is compatible with the diagnosis of a mild cervical sprain. This finding establishes plaintiff sustained minimal pain and suffering for a short duration and justifies the trial court’s declining to make any award for loss of wages. The trial judge found $39 medical expenses, the cost of plaintiff’s examination of August 11, attributable to the first accident and this establishes he considered additional medical expenses as unrelated to the first accident.

The trial judge emphasized the awards were determined after “observing the demeanor of the witnesses and judging the credibility of same.” A review of plaintiff’s testimony reflects material statements of fact which are in direct conflict with facts unequivocally established by other witnesses, including some called by plaintiff. Plaintiff’s credibility having become suspect, the trial judge was justified in finding plaintiff’s injuries were slight, requiring no medical treatment subsequent to August 11 and requiring him to miss no work. Canter v. Koehring Company, 283 So.2d 716 (La. 1973).

An appellate court should not disturb the award made by a trial judge unless the record clearly reveals an abuse of his much discretion in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). Considering the principles of review required by Canter and Coco, we affirm the trial judge’s personal injury and medical expense awards, and his rejection of an award for loss of income.

The lowest estimate for repairing plaintiff’s vehicle was $535.50 and was introduced by defendant Aetna. We find Aetna’s estimate fair and reasonable because the rusty condition of the car’s body created peculiar requirements for repairing the collision damage. We increase the property award to $535.50.

Defendant urges we fix the amount of his expert witness fees on appeal. There is no showing that the trial court has been requested to make such a determination. The fixing of the fee of an expert witness is within the prerogative of the trial judge. Plaintiff may proceed by rule to fix costs in the trial court even after the judgment rendered becomes final. Bentley v. Industrial Fire Protection, Inc., La.App., 2d Cir., 350 So.2d 982 (1977).

For the reasons assigned we award plaintiff judgment for property damage in the amount of $535.50, and as modified, we affirm the judgment of the trial court; costs on appeal are equally assessed to plaintiff and defendant.


text:
    Robert C. WILLIAMS et ux., Plaintiffs-Appellants, v. The HANOVER INSURANCE COMPANY OF NEW YORK et al., Defendants-Appellees.
    No. 13363.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.

      Naff, Kennedy, Goodman, Donovan & Parnell by Frank S. Kennedy, Shreveport, for plaintiffs-appellants.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendants-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiffs appeal seeking to increase a judgment for damages to a live oak tree caused when the automobile of defendant’s insured collided with the tree some five years before trial. The trial judge did not award legal interest on $130, which was allowed as damages to shrubbery, because defendant delivered to plaintiffs a partial payment draft for this amount prior to suit. Plaintiffs seek legal interest on the partial payment. We increase the award for damages and otherwise affirm.

THE LEGAL INTEREST CLAIM

Shortly after the accident, plaintiffs’ expert witness estimated the cost of replacement of damaged shrubbery would be $130. Defendant issued a draft to plaintiffs for this amount marked “Partial payment of property damage.” Plaintiffs received the draft, but did not present it for payment. Plaintiffs’ suit included this claim and legal interest.

When one party delivers a draft or check for less than the amount of a disputed claim with a notation thereon that acceptance constitutes full payment and it is subsequently endorsed by the payee, this acceptance constitutes an accord and satisfaction and bars recovery for the unpaid portion of the claim. Davis-Wood Lumber Company v. Farnsworth and Co., 171 So. 622 (La.App., Orl. 1937). Where there is no evidence or indication that a check is given as payment in full of a disputed claim and there is no mutual understanding that if the check is accepted the claim will be deemed to have been paid ■ in full, then accord and satisfaction does not result and the creditor is not estopped from claiming the balance. Jones v. Standard Life & Accident Insurance Company, 129 So.2d 84 (La.App., 3d Cir. 1961).

Plaintiffs contend that legal interest should be allowed because there was no legal tender. LSA-C.C. Arts. 2167, 2168. The circumstances do not constitute the legal tender contemplated by these articles. Nevertheless, the draft was delivered to plaintiffs and the proceeds were available long before institution of the suit. Plaintiffs could have collected the draft without prejudicing their claim for other damages. Jones, supra. Plaintiffs do not contend that the draft would not have been paid promptly upon presentation. Under these circumstances we hold plaintiffs are not entitled to recover legal interest on the $130.

DAMAGE TO THE LIVE OAK

The tree was planted by plaintiffs in 1960 and esthetically enhanced the appearance of plaintiffs’ well-landscaped yard.

Defendant’s expert tree surgeon, upon examination shortly after the collision, believed the tree would die because of this damage. He testified the oak, 12 inches in diameter at the time of the accident, was then worth $1,000. After the accident, and because of the uncertainty of survival, defendant’s expert thought it would have a value of $200.

Fortunately, the tree made a 90 per cent recovery during the five years following the accident. This expert predicted the tree would fully recover within one or two years, and the only effect of the injury was a slight retardation of growth during the healing period. It was also shown the tree grew six inches in diameter during the five year period. Plaintiffs’ evidence established that a healthy tree of this kind, 18 inches in diameter, was worth $2800.

For some seven to eight years following the accident the esthetic value of the tree has been or shall be affected. The measure of damages is the loss of esthetic value caused by the injury to the tree. Tissot v. Great Southern Telephone & Telegraph Company, 3 So. 261 (La.1887); Oglesby v. Town of Winnfield, 27 So.2d 137 (La. App., 2d Cir. 1946).

The lower court awarded $350 for this damage or an average of $45 to $50 per year. We believe extensive damage to a large ornamental tree which requires seven or eight years to heal should average more than the amount assessed below. While the esthetic depreciation in the latter years of the healing process is not great as in earlier years, the lowest yearly average we would affirm under the circumstances presented would be $100. Coco v. Winston Industries, Inc., 341 So.2d 332 (1977). Accordingly, the award in this respect is increased to $700.

Judgment amended, and as amended, at appellees’ cost, is affirmed.


text:
    CITIES SERVICE OIL COMPANY, Plaintiff-Appellee, v. C. A. HILBURN, Defendant-Appellant, and Petrol Industries, Inc., Defendant-Appellee.
    No. 13364.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.

      Hugh M. Stephens, Shreveport, for defendant-appellant C. A. Hilburn.
    Bodenheimer, Jones, Klotz & Simmons by J. W. Jones, Shreveport, for defendant-ap-pellee Petrol Ind., Inc.
    Blanchard, Walker, O’Quin & Roberts by George Conger, Shreveport, for plaintiff-appellee Cities Service Oil Co.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

Defendant, C. A. Hilburn, has appealed the judgment awarding Petrol Industries, Inc., a co-defendant in this concur sus proceeding, one-half of the one-eighth lease rent royalty on mineral production from land in Caddo Parish. We reverse the judgment for the reasons assigned.

Cities Service Oil Company, the purchaser of the production from the lease in dispute, initiated this action against Hilburn and Petrol to determine which defendant is entitled to payment of the disputed mineral lease royalty.

The dispute between the claimants arises out of the following stipulated facts:

On December 31, 1968, Carl Morris assigned to Central Facility, Inc., numerous properties, one of which was an oil, gas, and mineral lease covering the NW V* of the SE Vi of the NE Vi of section 32, Township 21 North, Range 15 West, Caddo Parish, known as the Burke “A” lease. Central Facility subsequently assigned these same properties including the Burke “A” lease to the present claimant, Petrol. At the time of the assignment from Morris to Central, Morris owned in addition to a working interest of .76562507 (Vsths less Váth overriding royalty), an undivided one-half interest in the land and minerals covered by the lease which entitled him to a royalty of .0625 of the gross production. He also owned an overriding royalty of one-sixteenth of seven-eights, entitling him to an additional .0546875 of the production. On October 20, 1972, subsequent to Petrol’s acquisition, Morris sold his interest in the land covered by the Burke “A” lease to Hilburn.

Hilburn contends the assignment of the Burke “A” lease on December 21, 1968, by Morris did not include the lessor’s rent royalty and that his purchase of the interest of Morris in the land and minerals entitles him to this royalty.

The trial court found the assignment by Morris to Central included the lessor’s rent royalty in addition to the working interest and overriding royalty because of the broad language of the “Mother Hubbard” or “cover all” clause in the conveyance which provided:

It is the intention of Assignor to convey herein all of his interest in the leases described in Exhibit “A” attached hereto and all of his interest in and to the wells and equipment located thereon, together with all of his interest in any and all overriding royalty interest or production payments of any kind or nature whatsoever affecting said leases or wells. In the event the net pipeline interest figure set forth after each lease description in Exhibit “A” does not accurately reflect the total interest (including working interest, overriding royalty interest, production payments or any other type of interest) owned by Assignor in the lease, the same is to be disregarded and the total interest of the Assignor in said lease is to be conveyed hereby.

This conclusion is not in keeping with the apparent intent of the parties as shown by the overall act of conveyance from Morris to Central and when the pivotal phrases or terms are construed in accord with common usage in the oil industry.

Petrol concedes Morris did not convey his interest in the minerals by the terms of the conveyance, but contends a royalty interest was created by the words “the intention of Assignor to convey herein all of his interest in the leases . . . ” coupled with the explanatory phrase “. . . together with all his interest in any and all overriding royalty interest or production payments of any kind or nature whatsoever affecting said leases or wells.”

With one exception, the ninety-six items listed on the schedule of properties conveyed by Morris are leasehold rights or interests derived from the lessee’s interest in oil, gas, or mineral leases and the wells and equipment located on the leases. These interests are customarily referred to as “working interests” as distinguished from the lessor’s rent royalty received as consideration for the lease.

We do not find the language employed expresses an intent to create a royalty interest. The parties to the agreement were both knowledgeable oil operators. Had such a result been intended, the instrument would have explicitly mentioned “royalty” or “rent royalty” in addition to the particular interests enumerated in the explanatory clause. “Overriding royalty” and “production payments,” which were listed, are interests in production usually related to the lessee’s working interest. Even though “overriding royalty” and “production payments” may be carved out of the lessor’s interest, neither of those interests are involved in this case. For a discussion of the nature of these interests see the comment to Article 126 of the Mineral Code (R.S. 31:126).

A mineral royalty interest such as that claimed by Petrol is an interest created by a mineral owner in production of the minerals whether obtained from drilling operations conducted solely by the mineral owner or through a mineral lease.. Therefore, in a literal sense, it is not an interest in a lease, but only a right to share in a portion of the production from whatever method it is derived. Morris could have conveyed to Petrol his right to be paid one-half of the rent royalty stipulated in the Burke “A” lease, but the instrument does not expressly convey such a right, nor does it evidence an intent to convey such a right.

We conclude that the rights and interest conveyed or assigned by Morris to Central under the lease in dispute were those emanating through the status of lessee and that no mineral royalty sale was effected by the transaction in question.

The judgment appealed is reversed and accordingly it is ordered, adjudged, and decreed that there be judgment in favor of C. A. Hilburn and against Petrol Industries, Inc., recognizing and decreeing C. A. Hil-burn as entitled to one-half (Vfc) of the one-eighth (Vsth) royalty payment (.0625 interest) in all production produced from the N/2 of NW/4 of SE/4 of NE/4 and SW/4 of NW/4 of SE/4 of NE/4, all in Section 32, Township 21 North, Range 15 West, Caddo Parish, Louisiana, covered by the Burke “A” lease, and, as such, entitled to all of the money deposited by petitioner into the Registry of the Court in this proceeding.

It is further ordered that Cities Service Oil Company pay over to C. A. Hilburn all royalty payments hereafter accruing to the production purchased by Cities Service Oil Company from said Burke “A” lease that are applicable to the mineral interest owned by C. A. Hilburn.

Costs of these proceedings including this appeal are to be paid by Petrol Industries, Inc.


text:
    Robert WILLIAMS, Jr., et al., Plaintiffs-Appellants, v. Orlando N. HAMILTON, Jr., et al., Defendants-Appellees.
    No. 13373.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    Paul H. Kidd, Monroe, George M. Strick-ler, Jr. by George M. Strickler, Jr., New Orleans, for plaintiffs-appellants.
    Hayes, Harkey, Smith & Cascio by Haynes L. Harkey, Jr., Monroe, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Plaintiffs, thirty-eight direct descendants of Sallie Evans, sued the administrator of her estate, the attorney for the administrator, and a co-purchaser of the succession property, contending the entire succession proceedings and the judicial sale thereunder were null. Finding the action one asking that a judgment be declared null for fraud and ill practices, the trial court sustained defendants’ plea of prescription of one year and dismissed plaintiffs’ suit. We reverse and remand for further proceedings.

The issue is which prescriptive period governs this lawsuit, i. e., the one year period applicable to suits in tort or for nullity of judgments; or the two year period granted to set aside judicial sales?

More than thirty years after Sallie Evans died intestate, her succession was opened and her only living child was named administrator. Attorneys were appointed to represent absent and unknown heirs. The administrator petitioned the court for permission to sell the only asset of the succession, approximately 68 acres of land, alleging this was necessary to pay the expenses of administration. Pursuant to court order of January 30, 1975, the land was sold by the sheriff on March 12,1975. The attorney for the administrator and another attorney were co-purchasers at the judicial sale and, along with the administrator, were named defendants in the present lawsuit filed on November 29, 1976.

Plaintiffs alleged numerous irregularities in the succession proceedings and sale, including the following: no notice of the succession proceedings was given to plaintiffs; the administrator was illiterate; the affidavit of death and heirship contained unspecified material errors; there was no necessity for the sale of succession property; plaintiffs never received funds from the sale; the attorney for the administrator retained the most valuable portion of the property.

Defendants excepted that the suit, based on alleged delictual acts occurring more than one year prior to its filing, was prescribed under Louisiana Civil Code Article 3536. The trial court agreed plaintiffs’ claim came too late, but based its decision on a finding that the action was one to annul a judgment [court order of January 30, 1975] for fraud and ill practices, which likewise prescribed in one year under Louisiana Code of Civil Procedure Article 2004.

Since it is not the principal thrust of plaintiffs’ suit to have a judgment of the trial court declared null, we conclude the Code of Civil Procedure provisions governing nullity of judgments do not apply to this lawsuit.

Plaintiffs’ allegations constitute an assertion of failure to observe certain formalities in a succession proceeding culminating in a judicial sale. Therefore, we hold the applicable prescriptive period is provided by Louisiana Civil Code Art. 3543 which governs actions to set aside judicial sales for informalities of legal procedure. Sun Oil Company v. Roger, 239 La. 379, 118 So.2d 446 (1960); Caldwell v. Hay, 170 So.2d 194 (La.App. 2d Cir., 1964).

Under La.C.C. Art. 3543 plaintiffs have at least two years from the time of the public sale to bring suit to set it aside. Since plaintiffs filed this action approximately twenty months after the sheriff’s sale, the suit was timely.

The judgment of the trial court sustaining the plea of prescription and dismissing plaintiffs’ suit is reversed and the case is remanded for further proceedings consistent with law and the views expressed herein; assessment of costs is to await the termination of the cause.

      . Art. 3536. The following actions are also prescribed by one year:
      That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.
      4! % !{« Sj< * iji

      . Art. 2004.
      A final judgment obtained by fraud or ill practices may be annulled.
      An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

      . Art. 3543. All informalities of legal procedure connected with or growing out of any sale at public auction or at private sale of real or personal property made by any sheriff of the Parishes of this State, licensed auctioneer, or other persons authorized by an order of the courts of this State, to sell at public auction or at private sale, shall be prescribed against by those claiming under such sale after the lapse of two years from the time of making said sale, except where minors or interdicted persons were owners or part owners at the time of making it, and in the event of such ownership or part ownership by said minors or interdicted persons, the prescription thereon shall accrue after five years from the date of public adjudication or private sale thereof.


text:
    Rudolph TAYLOR, Jr. and Mary Taylor, Plaintiffs-Appellants, v. ACTION HOUSEHOLD RENTALS, INC. and Delbert Speights, Defendants-Appellees.
    No. 13374.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    Lewis Weinstein, Richard C. Goorley by Richard C. Goorley, Shreveport, for plaintiffs-appellants.
    Wilson & Veatch by Thomas A. Wilson, Shreveport, for defendants-appellees.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Plaintiffs, Mr. and Mrs. Rudolph Taylor, Jr., sued Delbert Speights and Action Household Rentals, Inc. (singularly and collectively referred to in this opinion as defendant, for damages arising out of an incident in which Speights’ minor son, an employee of his father’s company, kicked down the front door of plaintiffs’ home while trying to collect a delinquent payment due on a refrigerator rented by defendant to plaintiffs. The defendant reconvened for the value of the refrigerator. After trial, the district court awarded plaintiffs $167 in damages and awarded defendant $167 as the balance due on the refrigerator, conditioned on plaintiffs’ exercising their option to purchase the refrigerator. Plaintiffs appealed. Defendant did not appeal or answer the appeal.

The primary issues raised on appeal are the amounts of the awards to plaintiffs and to defendant.

Plaintiffs rented a refrigerator from defendant under a lease-purchase agreement by which they agreed to pay $38 per month. Plaintiffs regularly mailed payments in varying amounts to defendant for 14 months. Because the husband was out of work, plaintiffs were unable to timely make one of the payments and the wife called defendant’s office, explained the situation, and promised to make the payment as soon as they could. Two of defendant’s employees, one of whom was his 200-pound, 17-year-old son, were sent to plaintiffs’ home with instructions to get the payment or the refrigerator. The other employee went to the door and when the wife, who was at home with her two small children, explained the situation, he suggested she talk to the assistant manager (Speights’ son) who had remained outside in the company truck. The wife told the employee to ask the other man to come into the house, which he did. After Speights insisted on picking up the refrigerator a serious argument ensued. Plaintiff ordered Speights to leave the house. At some point plaintiff picked up a lawn implement and brandished it as a weapon. At some point Speights went out the door, which plaintiff closed and locked. Speights kicked the door twice, breaking it down.

The other employee testified; but defendant’s son did not, although he was present at the trial having been subpoenaed by plaintiffs. The trial court erroneously refused to allow plaintiffs to call the son on cross-examination. LSA-C.C.P. Art. 1634. The failure of defendant to call the son as a witness raises a presumption that his testimony would have been adverse to defendant. The other employee’s testimony, while varying somewhat from plaintiff’s version as to the sequence of events, basically supports plaintiff’s testimony. It must be concluded from the record that the son (contrary to defendant’s general instructions that customers should not be argued with in making collections) pressed plaintiff beyond reasonable persuasion to let him take the refrigerator, refused to leave the premises when ordered to do so, and intentionally and violently kicked the door down.

The trial court's award to plaintiffs of $167, the same amount found to be owed to defendant under the lease-purchase agreement, does not adequately compensate plaintiffs for the tortious conduct of young Speights.

Plaintiffs do not seek recovery for the physical damage to the door. Defendant had the door replaced, although perhaps not adequately. The son’s remaining on the property and causing the damage after being ordered to leave constituted willful trespass and deliberate invasion of property rights. The plaintiff-husband, as head and master of the community, is entitled to damages. Turner v. Southern Excavation, Inc., 322 So.2d 326 (La.App. 2d Cir. 1975); Loeblich v. Garnier, 113 So.2d 95 (La.App. 1st Cir. 1959). The award to Mr. Taylor is fixed at $100.

Mrs. Taylor is entitled to damages for invasion of her privacy in the security of her home, the unreasonable and coercive attempts to collect the debt, and the threatening nature of young Speights’ tortious conduct. See Collins v. Lefort, 210 So.2d 895 (La.App. 1st Cir. 1968); Pack v. Wise, 155 So.2d 909 (La.App. 3d Cir. 1963). The award to Mrs. Taylor is fixed at $500.

The evidence shows plaintiffs made 15 payments of $38 each or a total of $570 attributable to the refrigerator contract. Other small amounts paid by plaintiffs to defendant appear to be for the rental of a television set. Late charges made by defendant were not authorized by the contract. The value or price of the refrigerator was established by the contract at $684, leaving a balance due on the purchase price, if the option to purchase is exercised, of $114. The judgment in favor of defendant, plaintiff-in-reconvention, conditioned on exercise of the option to purchase, should be in that amount.

No other issues are raised on appeal concerning the form or substance of the judgment, which will be affirmed as amended in the respects set forth above.

The judgment of the district court is amended to order defendant to pay to plaintiff, Rudolph Taylor, Jr., the sum of $100, together with legal interest thereon from date of judicial demand until paid, and to order defendant to pay to plaintiff, Mary Taylor, the sum of $500, together with legal interest thereon from date of judicial demand until paid. The judgment is further ammended to reduce the award in favor of defendant against plaintiffs from $167 to $114. As so amended, the-judgment is affirmed. All costs, including the costs of appeal, are assessed to defendant-appellee.

Amended, and as amended, affirmed.


text:
    James L. PLUNKETT, Plaintiff-Appellant, v. REEVES APOTHECARY, INC., Defendant-Appellee.
    No. 13377.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    Walker, Holstead & Smith by R. Wayne Smith, Ruston, for plaintiff-appellant.
    Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Monroe, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff appeals a decision in this declaratory judgment proceeding rejecting his demand to declare unenforceable a “noncom-petition” provision in the “Bill of Sale” of plaintiff’s drug store business to defendant. We affirm.

On July 1, 1972, plaintiff sold his drug store business, including inventory and fixtures, for $60,000. The sale contained the following noncompetition clause:

“In further consideration of the aforementioned sum paid this day, Appearer declared that neither he personally, nor Jordan and Plunkett Drugs, Inc., will operate or own a drug business or be employed as a pharmacist in Ward 1 of Bienville Parish.”

In 1976 plaintiff decided to return to Arcadia, which is located in Ward 1, Bien-ville Parish, to engage in the pharmacy business and contacted defendant in an effort to repurchase the drug store. The parties could not agree upon a price and plaintiff filed this proceeding seeking to invalidate the noncompetition clause.

The issue is whether the noncompetition agreement prohibits perpetually the plaintiff from engaging in the drug business in Ward 1 of Bienville Parish, and if so, is the controversial clause enforceable.

Plaintiff and defendant negotiated for a period of two weeks prior to consummating the sale. During these negotiations plaintiff represented to defendant he never intended to return to the drug business in Arcadia and he would contractually obligate himself not to return and engage in the drug business in Arcadia. The trial judge made this finding of fact and it is supported by the record.

At the time the contract was signed in the attorney’s office, the attorney suggested the noncompetition clause contain provisions limiting its operation to a geographical area and for a limited period of time. Plaintiff reiterated in the presence of the attorney and defendant his intention never to return to Arcadia and the parties agreed to place a geographical limitation on the noncompetition clause, but not to limit its duration. The agreement was prepared without limitation upon the duration of the noncompetition clause. The absence of a limitation clearly reflects the intentions of the parties that same be perpetual.

In the decisions of Moorman & Givens v. Parkerson, 59 So. 122 (1912) and May v. Johnson, 13 La.App. 521, 131 La. 204, 128 So. 540 (2d Cir. 1930), clauses containing no specific limitation were recognized as perpetual.

Covenants not to compete when ancillary to the sale of an ongoing business are not against public policy per se or in restraint of trade as long as the terms of the agreement are reasonable as to its duration and territorial extent. Public policy dictates a man may not contractually obligate himself not to pursue at any time or at any place his occupation, trade or skill, because it is essential that he be free to earn a living for himself and family. Agreements of this kind are void and unenforceable. There is a distinction between a noncompet-ition clause that contains a general restriction as to place and time and prohibits a man from following his occupation at all places and times and a clause which perpetually restricts him to a limited geographical area. The latter noncompetition clause which leaves the party free to pursue his occupation in all places other than the excluded area is valid when supported by consideration and is otherwise reasonable. Moorman & Givens v. Parkerson, supra; May v. Johnson, supra.

Plaintiffs drug store had an inventory of $20,000 and yet he sold it for $60,-000. The only physical assets other than the inventory included in the sale were the store fixtures and their worth could have only been a small part of the remaining $40,000 consideration. A substantial portion of the $60,000 consideration for the sale was paid by defendant because of the willingness of plaintiff to include within the sale a noncompetition clause which would be perpetual in duration. The basic reason behind the public policy holding this type of noncompetition agreement enforceable is because it gives the vendor who, by his skill and diligent attention to business, accumulates good will, an opportunity to obtain a price for it. In order for good will to have merchantability the purchaser must be assured he will have the full exclusive right to reap the benefits from the good will which he purchased. This guarantee is provided by the vendor obligating himself not to compete and thereby interfere with the purchaser’s efforts to profit from acquisition of the good will.

The store plaintiff sold, which he had operated for ten years, was located in a small town in rural north Louisiana. There was only one other licensed druggist in the community and only three physicians engaged in prescribing drugs for the people of the community. The operation of a drug store includes not only the sale of prescription drugs but also the sale of other merchandise necessary to health and personal comfort. The services of a druggist to a rural community are in many respects personal to his customers. Plaintiff would necessarily have become friends with and exercised influence over many of his customers. This influence would not have disappeared because of his sale of the drug store and should he reopen a drug store at some other location in the community following the sale to defendant, he would have retained for his new store operation a substantial portion of the customers he had acquired in the area during the preceding ten years. While his influence would have diminished as time elapsed, some of his influence would have remained with many customers in this community for many years following sale of the drug business to defendant.

Plaintiff, being well aware of the value of good will he accumulated over the years with the people of Ward 1, Bienville Parish, placed a substantial price on his drug business over and above the value of its physical assets. Defendant was willing to pay the price for the good will provided he got what he paid for and this was accomplished by including the noncompetition clause unlimited as to duration in the sales agreement. This agreement was legally entered into by the parties and is the law between them. LSA-C.C. Art. 1901.

In Allison v. Seigle, 65 App.D.C. 45, 79 F.2d 170 (1935), the court enforced a non-competition clause in a drug store transaction which prohibited the vendor from reentering the drug business in a ten block area as long as vendee operated the store. See also Clare v. Palmer, 201 Okl. 186, 203 P.2d 426, 45 A.L.R.2d 71 (1949), where a noncompetition clause in a drug store transaction was construed in conjunction with an Oklahoma statute and held enforceable within the town of Ft. Gibson, Oklahoma, as long as the vendee continued to operate a drug store in the town.

The noncompetition clause is not contrary to public policy and shall remain enforceable as long as defendant continues to operate a drug store in Ward 1 of Bienville Parish. Moorman & Givens v. Parkerson, supra; May v. Johnson, supra.

Plaintiff urges as applicable the case of Lindstrom v. Sauer, 166 So. 636 (La.App., Orl.1936) where the court declared unenforceable a noncompetition clause in the sale of a motorcycle sales and service business which failed to specify a time limit. The facts of Lindstrom are distinguishable from this case because in the former the noncompetition clause restricted vendor for as long as vendee operated the business in New Orleans, a much larger city than Arcadia. Considering the size of the trade area and nature of the business, the Lindstrom noncompetition clause could possibly be considered unreasonably unlimited as to geographical area and duration, and therefore void as a matter of policy. Insofar as Lind-strom is contrary to the views here expressed, we decline to follow it as it is contra to Moorman & Givens v. Parkerson, supra, and May v. Johnson, supra.

For the reasons hereinabove assigned, the trial court is affirmed at plaintiff’s cost.


author: PER CURIAM.

text:
    Dwaine Edmond WOODS, Plaintiff-Appellee, v. Abbie Gayle Crump WOODS, Defendant-Appellant.
    No. 13457.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.

      Clyde Lain, II, Monroe, for defendant-appellant.
    James Sharp, Jr., Monroe, for plaintiff-appellee.
    Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

Judgment of annulment was signed on June 27, 1977. Following the denial of application for a new trial on July 25, 1977, defendant filed a motion for appeal on August 18,1977. Appellant did not furnish an appeal bond until August 25, 1977, which was not timely. LSA-C.C.P. Art. 3942.

Appellant was notified of our probable lack of jurisdiction and did not respond to our order to show cause why this appeal should not be dismissed.

At appellant’s cost, the appeal is DISMISSED.


text:
    Glenda Emmons BOLIEW, Plaintiff-Appellee, v. Floyd Michael BOLIEW, Defendant-Appellant.
    No. 13476.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 9, 1977.
    Thomas, Prestridge & Burchett by Dewey E. Burchett, Jr., Bossier City, for defendant-appellant.
    James B. Wells, Bossier City, for plaintiff-appellee.
    En Banc before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

Upon lodging of the record in this suit for separation from bed and board and alimony, the court noted probable lack of jurisdiction due to appellant’s failure to file an appeal bond within the thirty-day period for taking an appeal provided by La.C.C.P. Arts. 3942, 3943, and 2087.

Appellant was notified of our probable lack of jurisdiction and failed to respond to our order to show cause why this appeal should not be dismissed.

Judgment was signed August 23, 1977. Appellant timely filed a motion for appeal on August 25, 1977, but failed to furnish security until October 11, 1977, which was untimely.

At appellant’s cost, the appeal is dismissed.


author: FORET, Judge.

text:
    Clyde J. MIRE et al., Plaintiffs-Appellees, v. CHEVRON OIL COMPANY et al., Defendants-Appellants.
    No. 6217.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1977.
    William H. Mouton, Lafayette, and Aaron, Aaron & Chambers, Noble M. Chambers, Jr., Crowley, for defendants-appellants.
    Pugh, Buatt, Landry & Pugh, Lawrence G. Pugh, Jr. and Timothy A. Jones, Edwards, Stefanski & Barousse, Homer E. Barousse, Jr., Jerry Page Harmon, Crowley, for plaintiffs-appellees.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   MOTION TO DISMISS

FORET, Judge.

The plaintiff-appellee, Clyde J. Mire, moves to dismiss the suspensive appeal of the defendants-appellants, Chevron Oil Company and Exxon Corporation, on the grounds that the order of appeal set a return date in excess of that permitted under LSA-C.C.P. art. 2125. The motion is opposed.

We deny the motion.

A final judgment was read and signed on March 14, 1977, and notices of judgment were mailed on March 16, 1977. On April 14, 1977 the defendants timely moved for, and were granted, a suspensive appeal, returnable to this court on July 12,1977. The defendants timely perfected their appeal by filing their appeal bond on April 14, 1977.

On June 9, 1977 the defendants filed a Motion to Amend Return Date of Appeal, requesting that the original return date entered by the clerk and/or trial judge, July 12, 1977, be amended to June 12, 1977 to comply with the requirements of LSA-C. C.P. art. 2125. An order was signed by the trial court on June 9, 1977 resetting the return date to June 12, 1977.

On June 9,1977 the Clerk requested from the trial court a 30-day extension of the return day of June 12, 1977, and on the same date the trial court granted the request, extending the return date to July 12, 1977. The record was filed with this court on June 20, 1977.

On June 23, 1977 the plaintiff-appellee timely filed a Motion to Dismiss the appeal of the defendants on the grounds that the originally set return date was improperly set under LSA-C.C.P. art. 2125, which, “warrants the dismissal of the appeal.”

We disagree, and judge the issue moot, for the trial court, upon the request of the defendants-appellants, corrected the error prior to the passage of the proper return date which should have been set under LSA-C.C.P. art. 2125. Cramer v. Brown, 26 La.Ann. 272. Even so, the appeal should not be dismissed, as the error was that of the clerk and/or trial judge, and an appeal “shall not be dismissed because of any irregularity, error, or defect unless it is imputable to the appellant.” LSA-C.C.P. art. 2161. Vinyard v. Stassi, 152 So. 161 (La.App.1st Cir.1934) and cases cited therein.

For the reasons assigned the motion of the plaintiff-appellee to dismiss the appeal of the defendants-appellants is hereby denied.

MOTION DENIED.


author: TORBERT, Chief Justice.

text:
    SOUTHERN SASH OF BIRMINGHAM, INC. v. CITY NATIONAL BANK OF BIRMINGHAM.
    SC 2158.
    Supreme Court of Alabama.
    Sept. 23, 1977.
    James R. Davis and James T. Johnson, III, Birmingham, for appellant.
    R. Bruce Robertson III, Birmingham, for appellee.
   TORBERT, Chief Justice.

Southern Sash, a corporation engaged in the business of selling building materials, sold and delivered materials to Patton Homes, Inc. for the building of houses on six lots. Patton Homes had earlier obtained construction loans from City National Bank of Birmingham for the purpose of building houses on these same lots. Patton Homes later discontinued construction on these homes, owing the following balances for materials furnished by Southern Sash:

Lot 52, Block 7 $5,881.96
Lot 53, Block 7 427.62
Lot 54, Block 7 1,155.83
Lot 55, Block 7 6,865.73
Lot 5, Block 8 2,951.57
Lot 6, Block 8 3,348.47

Southern Sash brings this action to enforce its materialman’s lien on the above-mentioned lots, and to establish the priority of its liens against the construction loan mortgages of City National. The trial court granted City National’s motion for summary judgment at the close of the plaintiff’s case, and Southern Sash has appealed.

Southern Sash argues that the trial court erred by not allowing into evidence testimony concerning City National’s negligence in making advances to Patton Homes under the construction loans. We disagree with this contention and follow this court’s holding in Empire Home Loans, Inc. v. W. C. Bradley Co., 286 Ala. 449, 241 So.2d 317 (1970).

The Empire Home Loans case dealt with a factual situation similar to the one in the instant case: a holder of a materialman’s lien attempted to establish the priority of his lien over a construction loan mortgage. The court stated that the establishment of priorities concerning materialmen’s liens is governed by statute, and that the apportionment of losses between materialmen and mortgagees “is a matter solely within the province of the legislature.” Id. at 454, 241 So.2d at 322.

The statute which governs the priority of materialmen’s liens is Title 33, section 38 of the Alabama Code (1958):

“Such lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages or incum-brances created subsequent to the commencement of work on the building or improvement; and as to liens, mortgages or incumbrances created prior to the commencement of the work, the lien for such work shall have priority only against the building or improvement, the product of such work which is an entirety, separable from the land, building or improvement subject to the prior lien, mortgage or incumbrance, and which can be removed therefrom without impairing the value or security of any prior lien, mortgage or incumbrance; and the person entitled to such lien may have it enforced by a sale of such buildings or improvement under the provisions of this article and the purchaser may, within a reasonable time thereafter, remove the same.”

Id. (emphasis added). The court in Empire Home Loans, supra, found that through the provision cited above the legislature intended to give precedence to construction loan mortgages recorded prior to the furnishing of materials by the materialmen. 286 Ala. at 453-54, 241 So.2d at 321. To reverse this priority “would impair the value of the mortgages as to monies advanced which exceeded the value of the unimproved lot.” Id. at 454, 241 So.2d at 321.

Applying this rule to the instant case, we find that Southern Sash first supplied materials to Patton Homes on the following dates:

Lot 52, Block 7 8-22-73
Lot 53, Block 7 6-19-73
Lot 54, Block 7 6-26-73
Lot 55, Block 7 7-11-73
Lot 5, Block 8 9-1-73
Lot 6, Block 8 9-18-73

Southern Sash admitted in its complaint that City National held a construction loan mortgage for each of these lots which was executed prior to the time it began furnishing materials for these lots. In fact, the complaint states that, in regard to lots 5 and 6 of Block 8, City National held mortgages which were recorded on July 26,1973. The mortgages for lots 5 and 6 are clearly entitled to priority, and the trial court’s determination in regard to them is hereby affirmed.

However, there is no evidence in the record which indicates that the mortgages on the other lots were recorded prior to the furnishing of materials to those lots by Southern Sash. Such evidence must be adduced before the court can decide which claim must be given priority. Therefore, we reverse the trial court’s granting of summary judgment as it pertained to lots 52, 53, 54 and 55 of Block 7. We remand this case to the trial court for further proceedings consistent with this opinion-

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

A MOTION WAS FILED FOR CLARIFICATION OF OPINION. THE MOTION WAS DENIED.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., concur.