author: DOMENGEAUX, Judge.

text:
    Sweeney BENOIT, as Personal Representative of William Benoit, Jr., Plaintiff-Appellee, v. FIREMAN’S FUND INSURANCE COMPANY, Standby Crews, Inc., and Deepwater Boats, Inc., Defendants-Appellants.
    No. 5988.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied in Part and Granted in Part June 24, 1977.

      Camp, Carmouche, Palmer, Carwile & Barsh by Karl E. Boellert, Lake Charles, for defendants-appellants.
    Nathan A. Cormie and Ronald J. Bertrand by Ronald J. Bertrand, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellee, Sweeney Benoit, brought this wrongful death action as personal representative of William Benoit, Jr., to recover damages on behalf of William Benoit, Jr.’s three minor children and his mother. He alleged that William Benoit, Jr., had drowned on March 8, 1973, near Eugene Island, in the Gulf of Mexico, while he was a member of the crew of the vessel “Carol Ann”, a crew-type vessel owned by the defendant, Deepwater Boats, Inc., used for standby purposes and operated and manned by the defendant, Standby Crews, Inc. The boat was tied to a drilling platform rig. Defendant Fireman’s Fund Insurance Company is the alleged insurer of one or both of the other two defendants.

Plaintiff claimed that the vessel was un-seaworthy and that William Benoit, Jr.’s employer, Standby Crews, Inc., was negligent, therefore entitling him to recover under the Jones Act (46 U.S.C.A. Sec. 688), Death on the High Seas Act (46 U.S.C.A. Sec. 761), and the general maritime law. He requested a trial by jury and obtained leave of court to proceed in forma pauperis.

Defendants-appellants answered the petition, denying any liability for decedent’s death, and alleging that William Benoit, Jr. had disappeared, without reason or explanation for the disappearance. They also specially pleaded as a bar to plaintiff’s suit, a compromise settlement entered into between defendants and the mother of decedent’s minor children, on their behalf.

On February 26, 1976, appellants filed, among other motions, a rule to strike the demand for a jury trial. They pleaded that the settlement for and on behalf of the minor children left only the mother of William Benoit, Jr. as the beneficiary, who, not being entitled to Jones Act benefits, could proceed only in admiralty and was, therefore, not entitled to a jury trial. The court denied the motion to strike the demand for jury trial.

The jury trial was held on May 10 and 11, 1976. The jury returned a verdict “for plaintiff and against defendant”. The amounts awarded were as follows: For and on behalf of the surviving mother of William Benoit, Jr., the sum of $25,000.00 for loss of society and $50,000.00 for loss of support; for and on behalf of the three minor children of William Benoit, Jr., the total sum of $112,500.00 for loss of support. The jury failed to award any amount to the children for loss of society. Judgment was rendered on August 4, 1976.

Defendants filed a motion for a new trial, which was denied. They have appealed.

We reverse the portion of the judgment which made an award on behalf of the minor children and dismiss that claim. We reverse the portion of the judgment which made an award on behalf of the mother, and remand the mother’s claim to the District Court for retrial without a jury.

Because this action arises under federal law (Jones Act, the DOHSA, and the general maritime law) we note that the scope of our review is the same as that accorded the federal appellate courts. Tra han v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971), and Hocut v. Insurance Company of North America, 254 So.2d 108 (La.App. 3rd Cir. 1971).

William Benoit, Jr., an employee of Standby Crews, Inc., age 34, disappeared from the Carol Ann while she was tied to a drilling platform rig in the Gulf of Mexico. Both he and the captain, Albert Trobl, had retired to their quarters at approximately 10:00 P.M.; however, when Trobl awakened and entered the galley at 3:30 A.M. on March 8,1973, he found Benoit in the galley smoking a cigarette.

After exchanging a few words with Be-noit and using the restroom, Trobl returned to his cabin for the remainder of the night. When he arose at approximately 6:10 A.M., he found that William Benoit, Jr. had disappeared, leaving his clothing and personal belongings behind him. He searched the entire vessel, summoned assistance from the Mobil Oil Company personnel on the rig, and initiated search operations with the aid of the U.S. Coast Guard and other vessels, which continued throughout the day until midnight. His body was never found.

At the time of his disappearance, William Benoit, Jr. had lived with his parents near Creole, in Cameron Parish, Louisiana. Be-noit had worked intermittently in construction, rice farming, trapping, and roughnecking. He was quite familiar with maritime work, having been employed as a roustabout on offshore drilling platforms and as a deckhand on several tugs.

He had been married to Harriet Ann Benoit from August, 1958, to June, 1969, at which time they were divorced. He was the father of three children of that marriage, aged 10, 11, and 13. However, his wife and children saw him only once in the six years before his disappearance, that is in July 1969 (one month after the divorce was final and after he had made the only child support and alimony payment.)

Within less than one month from the time of his disappearance, William Benoit, Jr.’s succession was opened. His father was appointed as administrator of the succession; however, he was followed, upon an untimely death, by William Benoit, Jr.’s uncle, who is the nominal plaintiff herein, Sweeney Benoit.

This action to recover damages for Be-noit’s presumed death was brought two years later. Meanwhile, William Benoit, Jr.’s former wife (now married to William Rachal) fought to protect the interest of her children by filing suit in a federal court in Houston, Texas, and seeking appointment as successor administratrix to William Benoit, Jr.’s father. The appointment, however, was recalled as, unknown to her, the uncle, Sweeney Benoit, had already qualified.

Through the efforts of her attorneys, Mrs. Rachal was then appointed from the 14th Judicial District Court for the Parish of Cameron, as the natural tutrix of the three minor children, and, with the approval of the court, settled the claims of the children with the defendants for the amount of $10,500.00 on March 20,1975. In an affidavit filed of record herein, Mrs. Rachal stated that she had not authorized Sweeney Benoit to act on behalf of her minor children with respect to any claims arising out of the disappearance or the death of their father, and did not wish him to prosecute, on behalf of her children, an action in the trial court in Cameron Parish.

In the petition for authority to settle the claim it was acknowledged by Mrs. Rachal that the settlement was highly advisable and advantageous to her minor children because the claim against defendants was disputed and uncertain and that the responsibility or liability of defendants was quite doubtful. She also acknowledged that a settlement would avoid protracted litigation which might have uncertain results.

The district judge did not recognize the aforementioned compromise settlement, and when the case came to trial, he refused to allow any evidence of Mrs. Rachal’s compromise settlement to reach the jury.

Defendants assign as errors:

(1) Refusal of the trial judge to recognize the validity of the compromise settlement, and alternatively, in not allowing evidence of the settlement to be presented to the jury;
(2) The absence of proof of liability on the part of defendants;
(3) The amount of damages;
(4) The form of special verdict;
(5) Improper comments by plaintiff’s counsel during closing argument.

Because we decide this case on the first assignment of error, the minors’ settlement, the remaining assigned errors need not be reached.

Plaintiff seeks to recover under the Jones Act, the Death on the High Seas Act, and the general maritime law.

The Jones Act permits the personal representative of the decedent to maintain an action at law with a trial by jury. He may sue for damages “for the benefit of the surviving widow or husband and children”. 45 U.S.C.A. Sec. 51. Any surviving children outrank the decedent’s parents and are therefore the only beneficiaries under this Act.

The Death on the High Seas Act (DOH-SA) provides a remedy for wrongful death in international waters when, before its enactment, there existed none.

DOHSA provides that the personal representative of the decedent may sue for the benefit of the decedent’s parents or children, among others. When joined with a Jones Act claim, a DOHSA action may be tried by a jury; however, by itself it does not afford such a right. See Green v. Ross, 481 F.2d 102 (C.A. 5th Cir. 1972).

The court’s scrutiny of the validity of the settlement with the tutrix must necessarily start with the proposition that settlements are favored in law. Pearson v. Ecological Science Corporation, 522 F.2d 171 (C.A. 5th Cir. 1975); Theatre Time Clock Company v. Motion Picture Adv. Corp., 323 F.Supp. 172 (E.D.La.1971).

In Lewis v. S. S. Baune, 534 F.2d 1115, 1122 (C.A. 5th Cir. 1976), a case involving settlement by representatives of several deceased seamen, the court said:

“Unquestionably the settlement of litigation and the compromise of disputed claims are favored by the courts . Courts have consistently held that parties have a right to settle or compromise their litigation without the knowledge or consent of their counsel . . .. (Citations omitted.)”

At the same time, it is recognized that settlement agreements by seamen, as wards of the court, will be subjected to a careful scrutiny by the court and that such scrutiny extends to settlements made by relatives of seamen. Lewis v. S. S. Baune, supra, Hassan v. A. M. Landry & Son, Inc., 321 F.2d 570 (C.A. 5th Cir. 1963), cert. den., 375 U.S. 967, 84 S.Ct. 486, 11 L.Ed.2d 416. If there is any undue inequality in the terms, or any disproportion in the bargain, such that rights which are sacrificed on one side are not compensated by benefits on the other, the compromise cannot stand.

Further, only the personal representative, rather than a beneficiary, has the right to maintain suit for wrongful death under the Jones Act and/or DOHSA. See Civil v. Waterman S. S. Corp., 217 F.2d 94 (C.A. 2nd Cir. 1954); Doyle v. Albatross Tanker Corp., 367 F.2d 465 (C.A. 2nd Cir. 1966).

However, in this instance, the mother and natural tutrix of the minor children acted in their best interest, and there was no inequity in the bargain. To reiterate, she was well represented and was fully aware that the possibility of recovery at trial seemed bleak. Our own review of the record herein convinces us that she and her attorneys were justified in this belief.

We are constrained to hold that the trial judge committed manifest error in not recognizing the validity of the compromise entered into between Mrs. Rachal, the mother of the minor children, and the defendants.

In Hassan v. A. M. Landry & Sons, Inc., supra, the mother, as administratrix of her son’s estate, brought a death action, arising out of a helicopter crash in the Gulf of Mexico, under the Jones Act, DOHSA, and general maritime law. She sued on behalf of herself, the decedent’s minor children, and their mother.

The widow in that case, however, had properly qualified as the natural tutrix of the minors in the 27th Judicial District Court in and for St. Landry Parish, Louisiana, seeking authority to make full and complete settlement, and then settled on behalf of the minors.

The federal appellate court in Hassan gave full faith and credit to the state court’s actions, and upheld a summary judgment in favor of the decedent’s employer, dismissing the entire action because, due to the settlement, the administratrix no longer had a claim under the Jones Act, and the DOHSA claim had prescribed.

The facts in Hassan are quite similar to the facts in the instant litigation. Here, the mother of the minor children was duly qualified as their tutrix by the proper state court. With the representation and assistance of her Houston and Cameron attorneys, Mrs. Rachal petitioned the same court which later tried this case (albeit before a different judge) for authority to settle, alleging that “petitioner’s attorneys have investigated the facts relating to the accidental death of William Benoit, Jr., instituted an action in the U.S. District Court for the Southern District of Texas, Houston Division, and have negotiated the terms of the proposed settlement”. The proposed settlement terms were contained in a formal release submitted to, reviewed by, and approved by the court.

As in Hassan, plaintiff did not question the settlement as unfair, coercive, or fraudulent. He merely argued that he, as personal representative of the decedent, had the sole and exclusive right to agree to a settlement. The following statement contained in Hassan, is relevant in this instance.

“The validity of the settlement is not attacked as fraudulent or in any other way except in the particulars which have been mentioned. The settlement having been fully and explicitly described to the Louisiana court and having received that court’s approval, we think that it meets even the careful scrutiny to which settlements and releases under the Jones Act must be subjected. (Citation omitted.)”

See also Larry v. Chicago, B. & Q. R. Co., 74 F.Supp. 798 (E.D.Mo.1947).

Plaintiff suggests to this court that the right of settlement in a Jones Act case rests exclusively with the personal representative of the decedent and consequently Mrs. Ra-chal’s compromise settlement with the defendants had no legal effect. In support of these arguments he cites a decision from a Kentucky State Court, namely, Pittsburgh, C., C. and St. L. Ry. Co. v. Collard’s Administrator, 170 Ky. 239, 185 S.W. 1108 (Ct. of App. of Kentucky, 1916). We find that the proposition for which the case was cited does not necessarily reflect the true holding of that case. Furthermore, that particular foreign state court decision is not controlling here.

Because we find the compromise and settlement in the instant case a valid one the Jones Act portion of this case must necessarily fall. Only the Jones Act affords claimants a trial by jury; it is established in federal law that general maritime law does not give a right to trial by jury. It must be concluded, therefore, that because we recognize the validity of the compromise and settlement, the mother of decedent is not entitled to a trial by jury. Such an action rests solely on DOHSA and general maritime law which do not afford trial by jury. The recognition of the settlement results in the removal of the children as beneficiaries or claimants and thus in the denial of a jury trial. Consequently the claim of the mother of William Benoit, Jr. must be remanded to the district court.

For all of the foregoing reasons:

It is therefore ordered that the portion of the judgment of the district court which made an award for and on behalf of the minor children is hereby reversed and that claim is ordered dismissed, with prejudice.

It is further ordered that the portion of said judgment which made an award for and on behalf of the decedent’s mother is also reversed; however, the claim of the mother is remanded to the district court for consideration and decision by the trial judge on the basis of the record; provided however, the trial judge may in his discretion allow additional evidence.

All costs, at trial and on appeal, are assessed against plaintiff-appellee.

REVERSED AND REMANDED.

ON APPLICATION FOR REHEARING

Rehearing granted but limited to all aspects of the claim of decedent’s mother, Mrs. Aida Benoit.

      . The landmark decision of Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) brought historic change by declaring that general maritime law does allow a death action for a violation of maritime duties both on the high seas and in territorial waters.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Joseph C. CORCELLER, Jr. and Rellecroc, Inc. v. John H. BROOKS, Laborde & Brooks and St. Paul Fire & Marine Insurance Company.
    No. 8030.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 30, 1977.

      Koerner, Babst & Lambert, Louis R. Koerner, Jr., Stephen M. Bernstein, New Orleans, for plaintiffs-appellants.
    Wiedemann & Fransen, A. Remy Fran-sen, Jr., Raul R. Bencomo, New Orleans, for defendants-appellees.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   GULOTTA, Judge.

In this legal malpractice suit, plaintiff appeals from the dismissal, after jury trial, of his claim for damages. Alleged as causes of the damages are the attorney’s improvident advice resulting in an injunction suit being filed against plaintiff; the attorney’s failure to timely answer the petition for injunction and damages causing a default money judgment to be taken against plaintiff; in an unrelated matter, defendant’s dereliction resulting in a deficiency judgment being rendered against plaintiff; and defendant’s failure to refund or otherwise account for $1,250.00 advanced by plaintiff for court costs and travel expenses.

The undisputed facts are that plaintiff operated a Bonanza Pit Restaurant beginning in early May, 1970, pursuant to a franchise agreement with Bonanza International. According to the contract, plaintiff was required to pay a certain percentage of his gross receipts on a weekly basis as royalties and was obligated to submit weekly accounting reports. In November of the same year, plaintiff received a letter from Bonanza International advising him to remove any references to the Cartwright television series theretofore associated with the Bonanza franchise. Corceller then consulted defendant Brooks for legal advice concerning his rights and obligations under the franchise agreement.

The following chronology is helpful.

First week of April, 1971 Corceller and Brooks discussed the possibility of filing a suit to rescind the franchise agreement in order that Corceller might recover his initial investment in the restaurant and the royalties which he had paid.

April 7,1971 As a result of their discussion, Corceller paid to Brooks the sum of $1,250.00 to cover the costs and travel expense incurred in filing the proposed suit.

April 20, 1971 Brooks filed suit on behalf of Corceller in a state court.

August 24,1971 Bonanza International’s attorney made demand for past due royalties and reports.

September 7,1971 Bonanza International cancelled the franchise due to the nonpayment of royalties.

September 17,1971 Bonanza International filed suit in U.S. District Court requesting an injunction against plaintiff’s operation of the franchise and seeking a claim for damages.

October 28,1971 The Federal Court issued a preliminary injunction ordering plaintiff to discontinue use of any Bonanza trademarks and to cease operation of a low-cost steak restaurant within a 25-mile radius of the existing outlet.

June 8,1972 The Federal Court found Corcel-ler in contempt of its injunction.

August 9,1972 Bonanza filed a request for a “clerk’s default” on the damage aspect of its suit.

August 15,1972 Defendant was relieved of possession of the Corceller file.

August 21,1972 The Federal judge ordered the default judgment.

October 18,1972 During the hearing at which Cor-celler did not appear, the Federal judge rendered damages in favor of Bonanza. The default judgment and damages rendered were affirmed on appeal. Following the default judgment for damages against plaintiff, this action in legal malpractice was filed.

In answers to interrogatories, the jury found: 1) . . .; 2) that defendants represented plaintiff at the time the alleged loss was sustained; 3) that defendants warranted or guaranteed a favorable result to their representation of plaintiff which was not obtained; 4) that defendants were negligent in their representation of plaintiff; 5) that their negligence was a proximate cause of injury and damage to plaintiff; 6) however, that plaintiff was guilty of contributory negligence and/or assumption of risk.

Plaintiff assigns as error the following: 1) that the trial judge, in his charge to the jury, erroneously gave instructions on negligence, contributory negligence and assumption of risk. Plaintiff claims his cause of action is based on breach of contract and not tort. In this connection, plaintiff claims that the attorney’s failure to produce the result warranted by him constituted a breach of contract. Corceller points out that in answer to an interrogatory, the jury found that Brooks warranted or guaranteed a favorable result in his representation of plaintiff which was not obtained; 2) that, even assuming plaintiff’s claim sounds in tort, the trial judge erred in failing to charge the jury on comparative negligence; and finally, 3) that the trial judge erred in failing to furnish interrogatories to the jury which separated each of plaintiff’s several claims from the others. According to Cor-celler, the defense of comparative negligence or contributory negligence may have been applicable to those claims which are based on a tort but are clearly not applicable to aspects of his complaint based on breach of contract.

At the outset, we find no merit to plaintiff’s contention that this malpractice suit is one based on breach of contract. Though it is true that a contractual agreement between Corceller and Brooks established the attorney-client relationship, this contract of employment merely gave rise to the attorney’s legal duty “to exercise at least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in his locality”. Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So.2d 239, 244 (1972). As the Louisiana Supreme Court stated therein:

“The risk of the expenditure of sums of money for costs of litigation, including attorney’s fees, directly flowed from the breach of the duty owed by the attorneys to these plaintiffs. Therefore the defendant attorneys were negligent in their acts and omissions toward the plaintiffs, and that negligence was the cause of the damage suffered by them.”

We are mindful of our decisions dealing with medical malpractice, Barrios v. Sara Mayo Hospital, 264 So.2d 792 (La.App. 4th Cir. 1972) and Creighton v. Karlin, 225 So.2d 288 (La.App. 4th Cir. 1969), wherein we stated that an injured plaintiff may sue a professional in tort or in contract from a breach of implied warranty to perform his services in conformity with community standards. Nevertheless, in such cases, this breach of warranty is, in effect, the negligence of a professional — that act or omission which is below the standards of similar practitioners in the community.

Warranty or guarantee by an attorney of a particular result of a litigious claim is foreign to the nature of the legal profession. This is not to say that we cannot conceive that an attorney may guarantee that he will follow a particular course of action or do a specific thing on the client’s behalf. However, because the dispute between Corceller and Bonanza involved litigious rights, the attorney for Cor-celler could not have warranted or guaranteed a result favorable to plaintiff. Under the circumstances, we conclude the trial judge erroneously charged the jury on “warranty or guarantee of a favorable result” and erroneously includéd an interrogatory to the jury on defendants’ failure to obtain a warranted favorable result. We further conclude, however, that the error is not reversible but harmless, particularly in view of the jury’s findings of negligence and contributory negligence.

We find no merit further to plaintiff’s contention that the doctrine of comparative negligence (based on LSA-C.C. art. 2323) rather than contributory negligence should be applied in malpractice cases. Our jurisprudence has consistently rejected application of the comparative negligence doctrine. See Crum v. Holloway Gravel Company, Inc., 273 So.2d 566 (La. App. 1st Cir. 1973), writ refused, 276 So.2d 701 (La.1973); Belle Alliance Co. v. Texas and P. Ry. Co., 125 La. 777, 51 So. 846 (1910); Legendre v. Consumers’ Seltzer & Mineral Water Mfg. Co., 147 La. 120, 84 So. 517 (1920). Plaintiff’s argument in this respect might be more appropriately made before the Louisiana Supreme Court.

We do find merit, however, to plaintiff’s argument that the interrogatories submitted to the jury should have been structured to allow separate consideration of each of plaintiff’s claims. Having found negligence on the part of the defendant proximately causing injury to plaintiff, the jurors were confronted with interrogatory no. 6 which they answered in the affirmative:

INTERROGATORY 6.
“Was plaintiff Joseph C. Corceller, Jr. guilty of contributory negligence and/or assumption of risk?
YES NO_
“If your answer is ‘YES,’ you will return a verdict for defendants.
“If your answer is ‘NO,’ you will return a verdict for plaintiff, Joseph C. Corcel-ler, Jr. and against defendants, find the amount of plaintiff’s damages and return a verdict in that amount.”

Though the trial judge in his charge instructed the jury to consider plaintiff’s claims separately, the interrogatory did not define those claims to which contributory negligence and assumption of risk are responsive defenses. Absent this differentiation, the jury could not have known which of plaintiff’s claims are subject to the defense of contributory negligence and assumption of risk and which of those claims are not.

It is true that the defense of contributory negligence is applicable to plaintiff’s claims relating to the termination of the franchise, the injunction and the default judgment in favor of Bonanza. Assumption of risk, however, is not a viable defense in the instant case. Corceller’s contempt of the Federal Court injunction and his failure to pay the royalties to Bonanza are proper factual questions to be considered by the jury in the determination of the question of contributory negligence. We do not feel that this conduct falls within the category of assumption of risk. We conclude, therefore, that interrogatory no. 6 erroneously included the words “assumption of risk”. Again, we conclude that the error, in this respect, is not reversible but harmless. The record clearly supports a factual conclusion that Corceller’s contempt of the Federal Court injunction and his failure to pay the royalties contributed to the termination of the franchise, the issuance of the injunction and the default money judgment.

The defense of contributory negligence, however, is not applicable to Corcel-ler’s claim either for a return and/or an accounting of the $1,250.00 advance covering court costs and expenses or to the deficiency judgment in favor of National Cash Register. As pointed out, plaintiffs acts which defendants argue constitute contributory negligence and assumption of risk are his financial inability to pay the royalty charges, his evasive testimony at the injunction hearing resulting in the granting of the injunction and his contempt of the injunctive order of the Federal Court resulting in the deficiency judgment against him in that court. These defenses are not applicable and facts supporting these defenses were not even asserted in connection with the claims for return of the advanced court costs and the cash register deficiency judgment.

According to the Code of Civil Procedure and the jurisprudence, the trial judge has the discretion to submit a case to the jury on special interrogatories but is not required to do so. Nevertheless, in a matter involving a cause of action in which several claims are asserted to which different defenses are responsive, the trial judge, in order to assist the jury in its deliberation, should direct interrogatories to the jury which would allow a separate jury finding on each claim and on the defense applicable to that claim.

Accordingly, we conclude the trial judge erred in the instant case in failing to include aji interrogatory defining those claims asserted by plaintiff to which contributory negligence is a viable defense and those claims to which this defense is not applicable.

No useful purpose would be served in remanding this matter to the trial court where the record contains evidence sufficient to dispose of the matter in this court. See Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975); Morgan v. Liberty Mutual Insurance company, 323 So.2d 855 (La. App. 4th Cir. 1975).

Our review of the evidence leads us to a conclusion that the record supports the jury’s finding of negligence on the part of defendant Brooks. Corceller testified that Brooks had advised him in early January, 1971, to discontinue paying royalties and submitting accounting reports. This testimony was refuted by Brooks. Though we are unaware of the reason for the jury’s finding of negligence on the part of defendant, it is reasonable that the jury concluded Brooks advised Corceller to discontinue the royalty payments and that nonpayment permitted Bonanza International to invoke the termination clause of the franchise contract. Further, a reasonable basis exists for the jury’s determination that defendant failed to file timely an answer to Bonanza’s claim for damages in the Federal Court. Though defendant testified that an oral agreement existed between him and the Bonanza attorneys that no default would be taken, his statement was inconsistent with those of the Bonanza attorneys who testified that no such agreement existed. The evidence indicates that defendant simply failed to file an answer prior to the clerk’s entry of a default which the Federal trial judge refused to set aside.

Again, though the record fails to disclose the reason for the jury’s finding of contributory negligence, there exists evidence from which the jury could have reasonably concluded that plaintiff was experiencing extreme financial difficulty prior to January, 1971, and for this reason plaintiff was unable to make the royalty payments. Evidence supports a conclusion by the jury that plaintiff’s own penury was a cause of the termination of the franchise and Bonanza’s injunction against him.

The jury could have reasonably concluded also that plaintiff’s contempt of the Federal Court injunction led to his downfall. Evidence taken at contempt hearings in Federal Court indicates that plaintiff refused to discontinue the use of the Bonanza trademarks. Despite the Federal Court order, he continued to operate a low-cost steak restaurant in violation of the injunction. His contemptuous action constituted grounds for the Federal Court’s refusal to set aside the default. Accordingly, his contributory negligence in these respects does not permit him to recover for damages resulting from the termination of the franchise and the adverse Federal Court judgment.

Turning now to plaintiff’s claim against defendant on the deficiency judgment rendered in the NCR matter, we conclude Corceller failed to show by a preponderance of the evidence that Brooks was negligent. The sole testimony on this claim was given by Phillip T. Hager, a former associate of Brooks who handled the cash register problem. According to Hager, Cor-celler’s son telephoned him and informed him that NCR was about to seize the cash register under executory process. Corcel-ler’s son was seeking an extension of time in which to use the register until a replacement could bb obtained. Hager made an agreement with an opposing attorney and a five-day extension was granted. Corceller obtained a new cash register from another source and the NCR machine was seized. Following the sale of the machine, NCR obtained a deficiency judgment against Corceller.

Though plaintiff asserts that the attorney’s improper handling of the matter caused the adverse judgment, no evidence was introduced by plaintiff to show that NCR would have accepted the return of the cash register alone in settlement of Corcel-ler’s obligation to pay the purchase price. There is no indication in the record that NCR was willing to forego its right to have the machine seized by the sheriff under executory process. Accordingly, we find no proof in the record supporting plaintiff’s claim of defendant’s negligence in connection with the NCR seizure.

Finally, we conclude plaintiff is entitled to the return of the $1,250.00 advanced to defendant for court costs and other expenses. Receipt of the amount is admitted by defendant; however, he characterizes the check as “a retainer” given to him at the inception of plaintiff’s state court suit. Evidence is lacking to support this contention. Plaintiff testified the sum was paid on April 7,1971, to cover anticipated travel expenses in prosecuting the suit. Corceller stated that he himself bore the cost of all expenses during a trip taken by Brooks and him to Dallas where the discovery deposition of a Bonanza executive was obtained.

In brief and oral argument on appeal, defendant asserts the doctrine of quantum meruit in extinguishment of the obligation for return of the deposit. We reject this argument. The affirmative defense of the “extinguishment of the obligation in any manner” must be affirmatively pleaded. See LSA-C.C.P. art. 1005. This defense was not pleaded in the instant case. Under the circumstances, we conclude that plaintiff is entitled to the return of the sum of $1,250.00.

Defendant asserts as a bar to plaintiff’s claim a release executed by plaintiff upon receipt of the sum of $8,500.00 from Bonanza International and others in connection with a settlement between those parties. Because of the result reached, no necessity exists for consideration of the effect of the release on the claims asserted by plaintiff. Our judgment in favor of plaintiff on the issue of the $1,250.00 advance payment has no relationship to that release.

Accordingly, the judgment of the trial court dismissing plaintiff’s suit on all claims, with the exception of his claim for costs advanced, is affirmed. That part of the judgment denying to plaintiff recovery of the $1,250.00 advance in costs is reversed and set aside. Accordingly, judgment is amended and cast as follows: Judgment is now rendered in favor of plaintiff and against defendants in the sum of $1,250.00, together with interest from date of judicial demand. In all other respects, plaintiffs claim is denied. Costs to be paid by plaintiff.

AFFIRMED IN PART; REVERSED IN PART.

      . The claim by plaintiff Rellecroc, Inc. against defendant attorney and his liability insurer has been abandoned.

      . Damages alleged by plaintiff, in addition to the claim for advanced costs, include: loss resulting from the deficiency judgment; additional attorney’s fees expended in attempting to correct the default judgment; physical disability, loss of earnings, embarrassment, humiliation, grief, mental anguish on account of in-junctive proceedings; loss of patrimony; adverse publicity; and loss of assets.

      . “Joseph C. Corceller, Jr. and Rellecroc, Inc. v. Bonanza International", No. 134-381 on the docket of the 24th Judicial District Court.

      . The last royalty payment and accounting had been made on January 3, 1971.

      . “Bonanza International, Inc. and Stewart Investments, Inc. v. Joseph Charles Corceller, Jr", C.A. No. 71-2594 on the docket of the United States District Court for the Eastern District of Louisiana.

      . See: Professor Litvinoff s treatise on obligations. La. Civil Law Treatise, Vol. 7, Sec. 182.

      . LSA-C.C. art. 2323 reads as follows:
      Art. 2323. Computation. of damages
      “Art. 2323. The damage caused is not always estimated at the exact value of the thing destroyed or injured; it may be reduced according to circumstances, if the owner of the thing has exposed it imprudently.”

      . See 7 Am.Jur.2d, Attorneys at Law § 167; Theobald v. Byers, 193 Cal.App.2d 147, 13 Cal. Rptr. 864, 87 A.L.R.2d 986, Cal.Dist. Court of Appeal, hearing denied by Supreme Court of California, 1961.

      . LSA-C.C.P. arts. 1811, 1812; Mulkey v. Aetna Casualty & Surety Company, 210 So.2d 897 (La.App. 1st Cir. 1968); Hocut v. Insurance Company of North America, 254 So.2d 108 (La.App. 3d Cir. 1971), writ denied, 260 La. 411, 256 So.2d 292 (1972).

      . As the Fifth Circuit Court of Appeals stated in Bonanza International, Inc. v. Corceller, 480 F.2d 613, 614 (1973), affirming the default judgment:
      “There is evidence, moreover, that defendant [Corceller] refused to obey the Court’s orders, and such action constitutes sufficient grounds for a default judgment. * * *
      “Defendant [Corceller] elected not to appear at a full hearing on the question of damages [subsequent to termination of defendant’s employment]. Damages awarded pursuant to default cannot be questioned for the first time upon appeal. * * * ”


author: HALL, Judge.

text:
    Frank RICHARDS, Plaintiff-Appellee, v. Thelma Ford MARLOW et al., Defendants-Appellants.
    No. 13264.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.
    En Banc.
    Rehearing Denied June 22, 1977.

      Gold, Hall, Hammill & Little by Edward E. Rundell, Alexandria, for defendants-appellants — Thelma Ford Marlow and The Travelers Ins. Co.
    Watson & Watson by Philip B. Watson, Jr., St. Joseph, for defendant and third party plaintiff-appellant — Spencer Ford.
    Gist, Methvin & Trimble by David A. Hughes, Alexandria, for defendant and third party defendant-appellant — State Farm Fire & Cas. Co.
    Sturgeon & Gore by Brent S. Gore, Ferri-day, for plaintiff-appellee — Frank Richards.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Plaintiff brought this action for damages individually and on behalf of his minor daughter, Rose Marie Richards, who slipped and fell while walking on a pipe which was formerly part of the substructure of a pier. Thelma Ford Marlow, who owned the land adjacent to the pier, and Spencer Ford, who leased trailer space to plaintiff near the pipe structure, were named defendants, along with their respective insurers. The trial judge rendered judgment in favor of plaintiff for $10,000 plus special damages, and all defendants appealed. We reverse the trial court judgment on the basis of our finding that the accident was due to the fault of Rose Marie Richards.

The essential facts are undisputed. At the time of the accident, Rose Marie was a thirteen year old of above average intelligence. The Richards family was one of several families leasing trailer space on the property of Spencer Ford. This property fronted on Lake St. Joseph, and these families often went swimming in the lake with the knowledge and permission of Spencer Ford. They customarily swam near the former pier. The pier originally had a board walkway, but high water on the lake had washed away the boards several years before the accident. Only a skeleton of horizontal and vertical two inch metal pipes remained, as pictured below:

The structure did not extend all the way to the bank. In order to get from the bank to the structure it was necessary for swimmers to wade through the water or make their way across cypress roots and stumps.

The swimmers customarily rested on or dived off of the pipe structure. In addition, some of them, including Rose Marie and her mother, walked the horizontal pipes to get to and from the bank, and, as described by another witness, “just to see if they could walk it.” The vertical pipes were too far apart to hold during these walks and anyone who walked the pier necessarily “tightroped” the horizontal bar between the vertical pipes.

On the date of the accident, Rose Marie had been swimming in Lake St. Joseph. She attempted to walk the pipe to the bank but slipped and fell, sustaining injuries to her mouth.

The trial judge found that the pier was unreasonably dangerous and applied the doctrine of attractive nuisance. The application of this doctrine necessarily includes a finding that the injured child was too young to understand and avoid the danger. Saxton v. Plum Orchards, 215 La. 378, 40 So.2d 791 (1949). The trial judge found that Rose Marie, because she, her mother, and her friends had previously walked on the pipes without incident, did not realize she was likely to fall.

Whether a child is too young to understand and avoid a danger depends both on the age of the child and the nature of the danger. Rose Marie was an intelligent thirteen year old. She should be expected to understand and avoid a danger as obvious as that of “tightroping” a wet pipe with wet feet. Furthermore, although her testimony indicates that she did not believe she would fall from the pipe, it also indicates that she recognized there was an element of risk. A fair summary of Rose Marie’s attitude is that she did not find the degree of danger sufficient to deter her from walking the pipe. She was taking what she thought was a reasonable risk.

Consideration of application of the attractive nuisance doctrine overlaps consideration of the contributory negligence and assumption of the risk defenses. In connection with these defenses, the following discussion from a recent law review article is pertinent:

“The essence of assumption of the risk is twofold: first, knowledge and appreciation of a danger, and second, a voluntary encountering of it. The essence of contributory negligence is simply carelessness. Thus, if a high wire performer were to walk a high wire between two buildings in a careful manner, he would have assumed the risk, but he would not have been contributorily negligent unless, of course, he performed in a careless manner. On the other hand, if one totally inexperienced in high wire performance would undertake the same endeavor, he would be deemed both to have assumed the risk and to have been contribu-torily negligent. He would have assumed the risk because he knew, appreciated, and voluntarily encountered the danger; he would have been contributorily negligent no matter how much care he employed. He would be deemed careless, if indeed not a fool, for undertaking such a risk with no experience.” Crowe, Anatomy of a Tort, 22 Loy.L.Rev. 903 (1976).

Rose Marie encountered the danger voluntarily. We find that she also had full knowledge and appreciation of that danger. She knew that wet feet could slip on a metal pipe and that she could lose her balance. She also knew that if she did slip, there was danger of harm. These were obvious dangers which should have been apparent to a child of her age and intelligence. The attractive nuisance doctrine, therefore, does not apply to this case, as Rose Marie was not too young to understand and avoid the danger. These findings also establish that Rose Marie was contribu-torily negligent and also assumed the risk of her actions. Recovery is barred, regardless of initial negligence on the part of defendants.

Plaintiff relies on Simmons v. Beauregard Parish School Board, 315 So.2d 883 (La.App. 3d Cir. 1975), writ refused 320 So.2d 207 (La.1975), in which a thirteen year old boy was found to be too young to understand the danger of an explosion of firecracker powder and the safety precautions necessary to prevent such an explosion. That case is not applicable. While the age of the child is the same, the nature of the danger in the instant case is more readily appreciated. This case is more similar to Butler v. City of Bogalusa, 258 So.2d 599 (La.App. 1st Cir. 1972), writ refused 261 La. 544, 260 So.2d 323 (1972), where an eleven year old girl was found to be old enough to appreciate the dangers of rummaging in a city dump, and Patterson v. Recreation and Park Commission for the Parish of East Baton Rouge, 226 So.2d 211 (La.App. 1st Cir. 1969), where a fourteen year old girl was found to understand the danger of falling while walking on a trash barrel placed on its side.

Plaintiff also argues that defendants are strictly liable because a defective thing in their custody caused Rose Marie’s injuries, citing Loescher v. Parr, 324 So.2d 441 (La.1975). Assuming arguendo that the structure was defective, the accident was nevertheless caused by the fault of Rose Marie in voluntarily encountering a known danger. Fault of the victim is a recognized defense to LSA-C.C. Art. 2317 strict liability. Loescher, supra.

Finally, plaintiff argues that defendants as landlords are strictly liable for defects on the premises. LSA-C.C. Art. 2695. This argument is based on an assumption that the pipe structure was a pier and that it was defective as such. It was not a pier, was not held out as a walking pier by the owner, and could not have been viewed as such by Rose Marie or any other reasonable person. It was nothing more than a network of pipes and, as such, was not defective.

For the reasons assigned, the trial court judgment is reversed, and plaintiffs suit is dismissed at his costs.

Reversed and rendered.


author: LEMMON, Judge. PER CURIAM.

text:
    J. C. FRANTZ and William H. White, d/b/a Frantz & White Architects-Engineers v. Dr. Povilas VITENAS.
    No. 7867.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 1977.
    Rehearing Denied June 30, 1977.

      Abbott J. Reeves, Metairie, for plaintiffs-appellees.
    Mouton, Roy, Carmouche, Hailey, Bivins & McNamara (A. J. McNamara, Metairie), for defendant-appellant.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   LEMMON, Judge.

Defendant has appealed from a judgment, following a trial on the merits, which awarded fees to plaintiffs, members of an architectural and engineering firm, for professional services under a verbal contract to prepare plans and specifications for construction of a commercial and office building on defendant’s land. The issue in dispute involves the terms and conditions of the fee arrangement. While plaintiffs and defendant agreed that they entered into a verbal contract for performance of the services, they disagreed as to their understanding of the fee arrangements.

Defendant takes the position that he agreed to a fee of 4% on the lowest bid accepted, but that he anticipated a total cost of about $250,000.00 (based on plaintiffs’ assertion that he could expect a cost range of $17.00 to $18.00 per square foot for a 14,000-square foot building), and when the lowest bid was over $355,000.00, he felt no fee was due.

On the other hand, plaintiffs point out that not only was there no budget limitation, but also defendant rejected any suggestions geared toward economy and insisted on his design desires. Plaintiffs also insist that they never work on a contingent fee basis.

After the bidding plaintiffs and defendant negotiated with the second lowest bidder (the first being unwilling to do so) in an attempt to reduce the total cost by elimination or revision of several features. That bid after negotiation was $343,000.00, and defendant agreed to this price if he could obtain a reasonable rate of interest. When he was unable to do so, he abandoned the project.

Plaintiffs calculated 4% of the $343,000.00 bid ($13,720.00) and billed defendant 80% of this amount, or $10,976.00 (since 20% of the fee normally covers supervision of construction). Additionally plaintiffs billed defendant $2,500.00 for the “additional cost of reworking and revising plans and specifications” and $950.00 for “reimbursable costs” of the detailed estimate and the cost of reproduction. This suit for $14,426.00 followed defendant’s refusal to pay the bill.

At trial plaintiffs introduced evidence as to their total hourly billing and the expenses of consultants. Although this evidence was admitted over objection solely as “an estimate of what their expenses are”, judgment was rendered for $20,435.00, the amount of the estimate.

We view the original situation as one in which defendant offered to pay a 4% fee for plaintiffs’ performance of services, and plaintiffs accepted that offer by performing the services. However, defendant resisted plaintiffs’ claim to fee entitlement upon performance by contending his obligation was conditional upon the happening of an uncertain event, namely, that bids be submitted in the range of $250,000.00. See C.C. art. 2021. While plaintiffs had the burden of proving the existence of a contract for the fee sought, defendant in order to prevail on this defense had the burden of proving the existence of the alleged condition in the contract.

Our review of the record supports the conclusion that defendant failed to prove he was not obliged under the verbal contract to pay a fee unless the bidding was in the $250,000.00 range. The record, while suggesting defendant was under the impression that the bids would be in that range, contains no evidence that he expressly conditioned his obligation to pay for the requested services on this eventuality. Furthermore, the existence of such a condition cannot reasonably be implied from the nature of the contract or the presumed intent of the parties. See C.C. art. 2026. Defendant significantly did not deny that he insisted on his desired design features rather than on a budget limitation. Moreover, the record suggests that the bids were higher than originally anticipated because of an unprecedented upsurge in construction costs between the time of defendant’s offer to pay for plaintiffs’ performance of the services and plaintiffs’ acceptance by performance.

We conclude that there was no express or implied condition in the contract which made defendant’s obligation to pay a fee conditional upon bidding within a certain price limitation.

The record, however, does not support a judgment in excess of $10,976.00. There was no evidence that plaintiffs intended to charge or defendant agreed to pay an additional fee for services performed in negotiating and revising the plans in an attempt to bring the total cost down. Indeed, the record suggests that such services are routinely performed when bids are higher than expected, as these were, and logical analysis dictates that reworking and revising after cost estimation are included in the fee for preparing plans and specifications unless the circumstances are extraordinary or the contract stipulates to the contrary. Neither was there any evidence that the so-called “reimbursable costs” were not included in the 4% fee. We therefore reduce the judgment to eliminate these unsupported items.

Accordingly, the judgment is amended to reduce the amount to $10,976.00. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing defendant calls our attention to our failure to assess costs.

Considering the substantial modification of the original judgment which we amended and affirmed, we conclude that all costs in both courts should be equally divided.

In all other respects the application is denied.

COSTS ASSESSED, REHEARING DENIED.

      . Defendant contended, but failed to prove, that the bids were higher because plaintiffs unreasonably delayed in preparing the plans for six to seven months instead of two to three, as promised.

      . We distinguish this case from one in which there is no agreement whatsoever as to fee. In such a case the parties are presumed to have intended a reasonable fee, and the court sets a reasonable fee based on expert evidence.


author: DOMENGEAUX, Judge. CULPEPPER, Judge, GUIDRY, Judge,

text:
    Anthony J. ROY, Sr., Plaintiff-Appellant, v. The UNION BANK, Defendant-Appellee.
    No. 5867.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 1977.
    Rehearing Denied June 24, 1977.

      Gravel, Roy & Burnes by Dan E. Melic-har, Christopher J. Roy, Alexandria, for plaintiff-appellant.
    Laborde & Lafargue & Kelly by C. E. Laborde, Jr., Marksville, for defendant-ap-pellee.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

Plaintiff appeals from a judgment which denied his recovery of damages, including attorney fees, allegedly sustained as a result of an earlier possessory action coupled with a demand for injunctive relief, brought by the defendant bank against him.

The trial judge in his written reasons has set forth the background giving rise to the instant suit as follows:

“The suit is a sequel of an earlier suit, No. 22,321, entitled, The Union Bank v. Anthony J. Roy, also tried in this court, appealed to the Court of Appeal, Third Circuit and ultimately decided by the Louisiana Supreme Court. The earlier suit was a possessory action coupled with a demand for a Writ of Injunction. It involved a three and one half foot strip of land located in the rear of the banking house of The Union Bank. In the earlier suit, this court denied a temporary restraining order, and, instead, issued a Rule to Show cause why a preliminary injunction should not issue. The defendant, Roy, filed Exceptions of No Cause and No Right of Action, a Plea of Estop-pel, an Answer coupled with a Reconven-tional Demand, calling Plaintiff in warranty and alleged he specifically reserved his rights to claim in a separate suit, reimbursement for his attorney’s fees and other damages incurred as a result of the suit.
On trial of the Rule to Show Cause, this-court granted a Mandatory Preliminary Injunction, ordering the defendant to remove a fence he had constructed which enclosed the disputed strip of land. Roy moved for a Devolutive Appeal from this judgment, and though granted, it was never perfected. Subsequently, the cause was set for trial on the merits and counsel for both sides stipulated to the effect that the evidence previously submitted on the Rule to Show Cause for a Preliminary Injunction, along with the pleadings and exhibits, would constitute the entire record for consideration on the merits. This court rendered judgment, on the merits, making final the injunction which had been prayed for. Roy again moved for an appeal, which was.granted and perfected, the court of appeal reversed the trial court’s decision; the Louisiana Supreme Court granted Writs, reversed the Court of Appeal, and reinstated the trial court’s judgment. Finally, on a rehearing application, the Louisiana Supreme Court reversed itself, and reinstated the Court of Appeal’s judgment.
On October 12, 1966, Roy filed this suit seeking damages and attorney’s fees based on the wrongful issuance of the Mandatory Preliminary Injunction at the instance of the Union Bank, for breach of the sales contract between the Bank and Roy (the Bank was Roy’s vendor), and the bank’s breach of warranty, in its sale to him. The Bank filed an answer, denied the allegations of the petition, and alleged specifically, that the parties had compromised their differences at the time of and by virtue of the Bank’s dismissal of its application for a rehearing following the Supreme Court’s decision above mentioned, and the execution of a written lease between the Bank and Roy which covered the disputed strip of land that had been the subject of the litigation in the first suit.
The facts are not disputed and are concisely stated above as the evidence adduced on this trial shows. The case presents a legal issue, which is whether Roy is entitled to recover damages including attorney’s fees, sustained by him as a result of the original suit brought against him by The Union Bank. . . .”

As aforesaid the trial court dismissed plaintiff’s suit. He now appeals and asserts that the trial judge erred in:

1. Denying recovery of damages and attorney fees for the wrongful issuance of a preliminary injunction on the ground that a permanent injunction subsequently issued, and

2. Failing to grant recovery of damages and attorney fees based on the bank’s breach of its contract of sale to plaintiff and the warranty contained therein and further based on the bank’s breach of the warranty of peaceable possession.

Full details of the controversy between the parties and the judicial resolutions thereof are contained in the reported decisions of the Third Circuit Court of Appeal and the Louisiana Supreme Court (originally and on rehearing) respectively found at 168 So.2d 716 (La.App. 3rd Cir. 1964), and 248 La. 801, 182 So.2d 319 (La.1965). To synopsize the containments therein — this court annulled and set aside the injunction which had been issued by the district court, and writs were granted by the Supreme Court. On original hearing the high court reversed the appellate decision, but on rehearing changed its position and affirmed the appellate decision finding that the evidence preponderated that from the time of his purchase of the property from the Bank, Mr. Roy was in possession of same.

We conclude that the trial court erred in denying damages and attorney fees for the wrongful issuance of the preliminary injunction, but was correct in its denial of sanctions for breach of contract and warranty.

LSA-C.C.P. Article 3608 reads as follows: “The Court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.”

LSA-C.C.P. Article 3663 provides that in-junctive relief, under the applicable provisions of Chapter 2 of Title I, of Book VII, to protect or restore possession of immovable property is available to .

“(1) A plaintiff in a possessory action, during the pendency thereof; and (2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right of which he claims the ownership, the possession, or the enjoyment.”

Under LSA-C.C.P. Article 3608 there must first of all be a “wrongful issuance” of a temporary restraining order or preliminary injunction in order that the aggrieved party may be allowed damages and attorney fees. The bank herein opted to seek injunctive relief in the original suit. Same was issued. It was ultimately annulled by the Appellate and Supreme Courts. The bank could have proceeded with its posses-sory action without coupling it with a demand for injunction. The loss of the pos-sessory action standing alone would not subject it to penalties. The injunction from the time of its issuance deprived Roy of his rightful possession of his property. It did not preserve the status quo, but rather required him to cease from using the property and affirmatively ordered him to remove the fence which he had constructed. He suffered and was deprived of his rights for some 2lh years from the time of the issuance of the preliminary injunction until the Supreme Court’s opinion in his favor was finalized.

The word “wrongful” does not necessarily connote bad faith or connivance, but it does import the infringement of some right. The use of the injunctive process is an extreme remedy, and its improper issuance causes the mover to stand the responsibility therefor. We therefore conclude, under the facts of this case that the original issuance of the preliminary injunction by the district court was “wrongful” within the context of LSA-C.C.P. 3608.

Having so concluded we must now determine whether the remaining requirements of LSA-C.C.P. 3608 were met so as to allow damages and attorney fees. The trial judge, among other reasons given, relied on the case of Indian Bayou Hunting Club v. Taylor, 261 So.2d 669 (La.App. 3rd Cir. 1972), for denying relief to Roy under C.C.P. 3608. That case is readily distinguishable from this one, if for no other reason that in the Indian Bayou case, there was never a preliminary injunction issued.

At first blush it would appear that Roy’s claim under C.C.P. 3608 is not viable because the preliminary injunction was ultimately made permanent by the district court, and further that there was no motion to dissolve the preliminary injunction or reconventional demand after the issuance of the preliminary injunction. It is to be remembered, however, that in the original suit Roy, by reconventional demand, claimed attorney fees by virtue of having hired counsel, but reserved his right to sue for them in a subsequent suit.

The hearing which was held in connection with the original possessory action filed by Union Bank was actually on the rule for preliminary injunction. It was this hearing which required Mr. Roy to obtain his own counsel and it was the judgment entered as the result of this hearing that ordered him to remove the fence which he had constructed, and to refrain from using or possessing the property involved. It was the wrongful issuance of the preliminary injunction that damaged the plaintiff.

There are many cases awarding damages and attorney fees for the wrongful issuance of a temporary restraining order or preliminary injunction where the trial court, rather than an appellate court, initially dissolved the restraining order or preliminary writ (annotations, C.C.P. 3608). However, it does not appear that the jurisprudence has considered the precise question raised by the instant case under C.C.P. 3608, i. e. can a litigant recover damages for the wrongful issuance of a preliminary injunction when a stipulated judgment on the merits granting a permanent injunction is subsequently rendered.

There was no hearing as such for the permanent injunction which was issued on January 29, 1964, in the original suit. A stipulation was entered into generally to the effect that the same evidence adduced at the hearing for preliminary injunction would be tendered for use at the hearing for permanent injunction. It appears that this stipulation was entered into to effect judicial economy and expediency since an exhaustive hearing had already been held on the rule for preliminary injunction with judgment being rendered against Mr. Roy. There obviously was no new evidence available and it would have been a vain and useless endeavor involving unnecessary time, delay, and expense to retry the same case when all parties involved were confident that the district court was going to persist in its ruling and make permanent the preliminary injunction previously granted.

The ruling of the district court would indicate that under C.C.P. Article 3608, the party injured by the wrongful issuance of a preliminary injunction has no redress for damages under the article if the trial court persists in its initial erroneous ruling. C.C.P. Article 3612 does not permit a sus-pensive appeal as a matter of right from the granting of a preliminary injunction. Under the ruling of the trial court in this case, an injured party can recover damages if the trial court reverses itself after having granted a preliminary injunction. However, if the district court errs and makes the preliminary injunction permanent, then, in effect, the defendant loses his right to recover damages. This result prevails although additional injury has been inflicted upon the defendant by the requirement of additional appellate litigation, time, effort, and expense. On the other hand, if the trial court reverses itself and recalls a preliminary writ, then the injury is mitigated; yet in such cases the defendant can recover his damages and attorney fees for such lesser injury.

If, arguendo, after the issuance of the preliminary injunction in this case, a motion to dissolve would have been filed, and ultimately denied by the district judge, and the same appellate process would have proceeded, culminating in the dissolution of the injunction in the appellate courts, there seems to be little doubt but that damages and attorneys fees would be due. That hypothesis and the actualities of this case are of little difference.

We conclude that the chronology of activities in this case are such that it was the wrongful issuance of the preliminary injunction which damaged the appellant and that the reconventional demand filed by Mr. Roy in the original suit suffices to grant him umbrage under C.C.P. Article 3608.

Additionally we take note of the Official Revision Comments under C.C.P. Article 3608 which state:
“(a) The above article retains the provisions of Art. 375, Code of Practice of 1870, which gives the defendant in an injunction suit the right to claim damages by reconventional demand.
(b) Heretofore, attorney’s fees could be recovered only where there was a dissolution of a restraining order or preliminary injunction on a motion prior to trial. Three Rivers Oil Co. v. Laurence, 153 La. 224, 95 So. 652 (1923); Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 (1941). The above article, however, permits attorney’s fees to be recovered even though the restraining order or preliminary injunction is dissolved after trial on the merits. Cf. Comments at Art. 3506, supra.”

We do not consider it a strained interpretation to conclude that when the above comments refer to the dissolution of the preliminary injunction after trial on the merits, that such dissolution may be mandated by an appellate court.

On the question of damages and attorney fees for the improvident issuance of the preliminary injunction, the record amply shows that Mr. Roy employed the services of two attorneys to represent him from the inception of the original suit by the Union Bank until the matter was finalized in the Louisiana Supreme Court. The attorney fees amounted to the sum of $8,000.00. It is difficult to discern what portion of that $8,000.00 fee pertained to the defense of the possessory action and what portion pertained to the dissolution of the preliminary injunction. Actually the actions went hand in hand. Of course Mr. Roy is not entitled to attorney fees or damages by virtue of being successful in the possessory action. In view of the interrelation between the possessory action and the accompanying preliminary injunction we feel that the equities of this case dictate that the sum of $4,000.00 should be awarded appellant as attorney fees.

Concerning damages under C.C.P. 3608, the evidence shows that the appellant leased the property in question for a 25-year term commencing February 1, 1966, for a monthly rental of $55.00. This establishes a reasonable criterion to establish damages for loss of rental. The preliminary injunction was first issued on July 15, 1963. From the date of the issuance to the date of the February 1, 1966 lease, some 3OV2 months elapsed. We will therefore award appellant the sum of $1,677.50 as damages for loss of rental as a result of the improvident issuance of the preliminary injunction.

Appellant claims other damages pertaining to the issuance of the preliminary injunction but we find that there is not a sufficient evidentiary basis to award same.

Turning now to the portion of the appeal wherein appellant claims damages based on the appellee’s alleged breach of its contract of sale to appellant and the warranty contained therein, we find no error in the conclusion of the trial judge which denied those damages. We find no statutory or contractual provisions which allows attorney fees in possessory actions. See Bryson v. George, 31 So.2d 492 (La.App.2nd Cir. 1947). On damages generally, we find no proof of actual damages for breach of contract and/or warranty.

For the above and foregoing reasons the judgment of the district court which disallowed damages and attorney fees for breach of contract and warranty is affirmed. The portion of the district court judgment which disallowed damages and attorney fees for the improvident issuance of the preliminary injunction is reversed, and it is accordingly ordered that there be judgment in favor of appellant, Anthony J. Roy, Sr., and against the appellee, The Union Bank, in the full sum of $5,677.50 together with legal interest thereon from date of judicial demand until paid.

Costs at trial and on appeal are assessed against the appellee, The Union Bank.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GUIDRY and CULPEPPER, JJ., concur in part and dissent in part and assign written reasons.

CULPEPPER, Judge,

concurring in part and dissenting in part.

I concur, as does Judge Guidry, with the majority view that appellant is not entitled to damages and attorney’s fees based on appellee’s alleged breach of its contract of sale to appellant and the warranty contained therein.

I dissent, as does Judge Guidry, from the majority holding that appellant is entitled to damages and attorney’s fees. However, I base my dissent solely on the second reason stated in Judge Guidry’s opinion, i. e., that there can be no recovery under'LSA-C.C.P. Article 3608 for damages and attorney’s fees because the plaintiff-appellant, Mr. Roy, did not at any time file either a motion to dissolve the preliminary injunction or a reconventional demand seeking such relief. I agree with Judge Guidry’s reasons for this construction of Article 3608.

I would not reach the issue of whether the preliminary injunction was wrongfully issued.

For these reasons, I respectfully concur in part and dissent in part.

GUIDRY, Judge,

concurring in part and dissenting in part.

I concur with the majority view that appellant is not entitled to damages and attorney fees for breach of its contract of sale and the warranty contained therein, however, for the reason that plaintiff has not shown an eviction or equivalent disturbance by title paramount. Hale v. City of New Orleans, 13 La.Ann. 499 (La.1858); Republic Petroleum Corporation v. U. S., 397 F.Supp. 900 (D.C.La.1975). Additionally, plaintiff’s demand for attorney fees for breach of warranty is ill founded as such are not recoverable under R.C.C. Article 2506. Juneau v. Laborde, 228 La. 410, 82 So.2d 693 (La.1955).

I disagree with and respectfully dissent from the conclusion of the majority that appellant is entitled to be awarded damages and attorney fees for dissolution of an alleged wrongfully issued preliminary injunction.

The original suit was a possessory action filed by the Bank against Roy wherein the former, alleging actual and exclusive possession of the strip of land in controversy for more than one year previous to the latter’s disturbance in fact, prayed that it be maintained in possession. In addition the Bank sought the issuance of a preliminary injunction and a permanent injunction ordering and commanding Roy to remove the fence constructed on the disputed property and to thereafter desist from any further disturbance of the Bank's possession. After a lengthy trial of the rule a preliminary injunction issued. Roy moved for a devolutive appeal from this judgment, but though granted, it was never perfected. The preliminary injunction was later made permanent after a trial on the merits. I emphasize at this point that subsequent to the issuance of the preliminary injunction Roy made no demand, by motion or recon-ventional demand, for damages and attorney fees for the wrongful issuance of the preliminary injunction. As set forth in the majority opinion, subsequent to the trial court judgment making permanent the preliminary injunction previously issued, Roy again moved for an appeal which was granted and perfected. This court reversed the trial court decision. 168 So.2d 716 (La. App. 3rd Cir. 1964). The Supreme Court granted writs, reversed the Court of Appeal, reinstating the trial court judgment, however on rehearing the Supreme Court reversed itself, and reinstated the judgment of the Court of Appeal. 248 La. 801, 182 So.2d 319 (La.1965).

Appellant seeks damages and attorney fees in this suit for the alleged wrongful issuance of the preliminary injunction in the earlier suit on the basis of LSA-C.C.P. Article 3608, which provides as follows:

“The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.”

In my opinion appellant’s claim for damages and attorney fees should be denied for either of two reasons.

Firstly, the cited article clearly allows damages, including attorney fees, only for the “wrongful issuance” of a temporary restraining order or preliminary injunction.

There is nothing in the record which would even suggest that the preliminary injunction was “wrongfully issued” other than the fact that ultimately Roy was recognized as owner of the disputed strip under the record title exhibited by him. This ultimate recognition of title ownership does not necessarily cast the issuance of the preliminary injunction as being “wrongful”.

The term “wrongful” is referred to as follows in 101 C.J.S. Wrongful p. 642:

“It has been said that a wide range of meaning is given to the word “wrongful” in the various dictionaries and encyclopedias. The term imports the infringement of some right.
In its ordinary sense “wrongful” is defined as meaning injurious, heedless, reckless, unjust, unfair, unlawful, negligent; and, it is used to describe any act which is unlawful or unauthorized or any other act of this description which is a civil wrong, or without right.
In its ordinary legal sense, the word “wrongful” is not applied to that which is lawful . . (Emphasis mine)

In Black’s Law Dictionary, Fourth Edition, the term “wrongful act” is defined as follows:

“Any act which in the ordinary course will infringe upon the rights of another to his damage, unless it is done in the exercise of an equal or superior right . . . ” (Emphasis mine)

The record in this case, which includes as Exhibit 1 the entire record in the earlier suit, and the several opinions written by the appellate courts reflect that rather than “wrongfully issued” the Bank was clearly entitled to the preliminary injunction. LSA-C.C.P. Article 3663 provides that injunction relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property is available to . “(1) A plaintiff in a possessory action, during the pendency thereof; and (2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right of which he claims the ownership, the possession, or the enjoyment”.

The Official Revisions Comments of that article state in part as follows:

(B) Injunctive relief is made available in two separate and distinct types of cases: (1) as an ancillary remedy in a possessory action; . . . ”

A review of the opinion written by the trial judge in the parent case clearly shows a finding by the trial court that the Bank exercised exclusive corporeal possession of the strip of land in controversy for more than a year preceding the filing of the possessory action. This court in its opinion reported at 168 So.2d 716, 719, affirmed this finding of fact and stated:

“. . . the plaintiff had the corporeal possession of the property for more than a year required to maintain the possesso-ry action, Articles 3658, 3660, LSA-Code of Civil Procedure . . . ”

The Supreme Court on original hearing 182 So.2d 319, 324, also concluded that plaintiff had shown the corporeal possession necessary to maintain a possessory action and stated:

“On the question of the possession of the disputed realty, the record supports the finding of fact of the trial court that plaintiff exercised corporeal possession of the disputed strip of land for one year prior to instituting suit.”

It is true that the Supreme Court on rehearing determined that Roy and not the Bank had possession of the disputed strip, however, a careful reading of the opinion indicates that such conclusion was based upon a finding that the deed from the Bank to Roy conveyed title to the disputed strip and possession under that deed of the balance of the lot by Roy constituted possession of the strip under the legal theory that possession of a part is possession of the whole; and, that the actual physical possession of the Bank was precarious and inured to Roy’s benefit.

Under the cited article, based upon the evidentiary showing made, the Bank was clearly entitled to the issuance of a preliminary injunction during the pendency of the suit. Clearly the purpose of the ancillary remedy of injunction in a possessory action is to protect the possession of the party who has the requisite corporeal possession of the property in dispute until the matter of title is ultimately decided. As aforestated the ultimate recognition on appeal of title ownership adverse to the possessor does not cast the issuance of the preliminary injunction under LSA-C.C.P. Article 3663 as “wrongful”. Accordingly, I would conclude that the issuance of the preliminary injunction in the earlier suit was both lawful and authorized and consequently cannot be said to have “wrongfully issued”. Therefore, plaintiff, in my opinion, has no right to recover damages under LSA-C.C.P. Article 3608. See Fair Grounds Corporation v. Larmeu, 306 So.2d 316 (La.App. 4th Cir. 1974).

The second and an equally compelling reason for denial of appellant’s claim lies in the fact that LSA-C.C.P. Article 3608 contemplates the recovery of damages and attorney fees for the “wrongful issuance” of a preliminary injunction only upon the filing of a motion to dissolve or a reconventional demand seeking such relief, which demand may be considered and allowed either on trial of the motion before trial on the merits or on trial of such motion or reconven-tional demand simultaneous with the trial on the merits.

Previous to the adoption of the Louisiana Code of Civil Procedure by Act No. 15 of 1960 one who sought to recover damages including attorney fees for the “wrongful issuance” of a preliminary injunction was required to do so by motion tried and disposed of in advance of a trial on the merits. Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 (La.1941) and cases therein cited. LSA-C.C.P. 3608, by its terms, overruled this prior jurisprudence and now permits consideration of such a claim, made by motion to dissolve or reconventional demand, simultaneous with the trial on the merits. The Official Revisions Comments of LSA-C.C.P. Article 3608 state in part as follows:

“(b) Heretofore, attorney’s fees could be recovered only where there was a dissolution of a restraining order or preliminary injunction on a motion prior to trial. Three Rivers Oil Co. v. Laurence, 153 La. 224, 95 So. 652 (1923); Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 (1941). The above article, however, permits attorney’s fees to be recovered even though the restraining order or preliminary injunction is dissolved after trial on the merits. Cf. Comments at Art. 3506, supra.”

The Official Revision Comments of LSA-C. C.P. Article 3506, referred to in the above quotation, state in part as follows:

“(d) . . . The change which this article effects eliminates the necessity for two hearings if the claim to attorney’s fees is to be asserted, i. e., the hearing on the motion to dissolve the writ and the trial on the merits.”

The law and jurisprudence which require that a claim for damages, including attorney fees, for the wrongful issuance of a temporary restraining order or preliminary injunction, be asserted by way of a “motion to dissolve” or reconventional demand, has not been changed. Rather, to the contrary, LSA-C.C.P. Article 3608 by its very terms specifically requires that any such demand be contained in a “motion to dissolve or on a reconventional demand”. This article clearly does not contemplate that such demand can be set forth in a separate and independent action filed long after the preliminary injunction issues and is subsequently made permanent.

As previously indicated following issuance of the preliminary injunction appellant did not seek its dissolution and damages by way of motion or reconventional demand but rather suffered the injunction to be made permanent following a hearing on the merits. The preliminary injunction was never dissolved for being “wrongfully issued”, rather the effect of the preliminary injunction was superseded, without any claim by appellant for dissolution and damages, by the permanent injunction which subsequently issued after trial on the merits. In my view the cited article does not contemplate nor does it authorize an award of damages, including attorney fees, when a permanent injunction is dissolved by reason of the trial court judgment awarding same being reversed on appeal where the one enjoined did not seek dissolution of the preliminary injunction which issued in advance of the permanent injunction.

Finally, I respectfully suggest that the decision of my esteemed brethren of the majority frustrates the very purpose of the change brought about by our new Code of Civil Procedure which was admittedly to eliminate the necessity for two hearings if the claim of attorney fees is to be asserted.

For these reasons I respectfully dissent from the decision of the majority which allows appellant damages and attorney fees for the wrongful issuance of the preliminary injunction.

      . Footnote by Appellate Court. 168 So.2d 716 (La.App. 3rd Cir. 1964) writ granted Jan. 18, 1965.

      . Footnote by Appellate Court. 248 La. 801, 182 So.2d 319 (La.1965).

      . The appellee suggests that it entered into a compromise with appellant subsequent to the finalization of the original controversy by the Louisiana Supreme Court, and that consequently appellant’s complete claims herein are not viable. However, we agree with the district judge who held that the evidence does not support the defense of compromise made by the appellee.

      . The record reflects that defendant filed an answer to the possessory action and by way of reconventional demand sought to reserve such rights as he may have to damages and attorney fees, however, this answer was filed long prior to trial of the rule for and the issuance of the preliminary injunction. The preliminary injunction not having issued when the answer and reconventional demand was filed the latter certainly cannot be considered a demand for attorney fees and damages for the wrongful issuance of a preliminary injunction.


author: MORIAL, Judge.

text:
    Edward BLACKMORE and Susie Willis, wife of Edward Blackmore v. NEW ORLEANS PUBLIC SERVICE, INC., et al.
    No. 8215.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Jack J. Charbonnet, Kenny M. Charbon-net, New Orleans, for plaintiffs-appellants.
    C. B. Ogden, II, New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Susie Willis, wife of/and Edward Black-more appeal from a judgment dismissing their suit against defendant New Orleans Public Service, Inc. (NOPSI) for damages sustained by Mrs. Blackmore in an automobile-bus collision near the intersection of Magazine and Joseph Streets in the City of New Orleans.

On February 17, 1972 Mrs. Blackmore was a fare-paying passenger aboard a NOP-SI bus being operated by Ed Henry Johnson. Mr. Johnson was proceeding in an uptown direction on Magazine Street and stopped at the passenger service stop at the intersection .of Magazine Street and Joseph Street and permitted several passengers to alight. Mr. Johnson pulled away from the stop and proceeded down Magazine Street at approximately 10 mph. Mrs. Blackmore intended to get off the bus at the next stop and after pulling the cord to notify the driver stood up and began moving toward the exit. An automobile being driven by Mr. Merrit Blakeslee passed the bus and came to a complete stop in front of the bus after completing the passing maneuver. The bus driver slammed on his brakes but was unable to avoid running into the rear of the Blakeslee vehicle. Mrs. Blackmore was thrown to the floor of the bus and sustained injuries. Plaintiffs sought damages alleging the negligence of the NOPSI driver and in the alternative sued Blakeslee. Mr. Blakeslee filed a separate suit against NOPSI which was consolidated with this case for trial. Damages were stipulated to prior to trial. Defendant NOPSI denied liability alleging that the negligence of Blakeslee was the sole cause of the accident. The trial judge rendered judgment in favor of plaintiffs in the sum of $3,530.00 against defendant Blakeslee and granted judgment in favor of defendant NOPSI dismissing plaintiffs’ suit against the company. We affirm.

Plaintiffs argue on appeal that the defendant bus driver failed to exercise the high degree of care required of the driver of a common carrier. Specifically, plaintiff contends that the driver was inattentive because he did not hear the blowing of the horn by the driver of the passing vehicle and did not observe the auto’s tail lights going on when Blakeslee applied his brakes. Plaintiffs also contend that the bus driver was negligent in not immediately applying his brakes or decelerating when he became aware of the passing vehicle. Plaintiff points out there were no skid marks found after the accident and also that the weather was dry and clear on the day of the incident.

Defendant admits that it owes a high degree of care to its passengers and the fact that plaintiff was injured and did not reach her destination safely imposed upon the defendant carrier the burden of exculpating itself from negligence. However, defendant argues that it met this burden of proof by presenting evidence rebutting any presumption of negligence on the part of its driver. A review of the record shows that the defendant NOPSI met its burden of proof.

Mrs. Blackmore testified that after she stood up and took a couple of steps she heard a horn honking, the screech of tires, felt the bus wiggle and was then thrown to the floor. She did not see the passing vehicle until after the accident occurred.

Mr. Blakeslee testified that prior to the accident he was traveling at about 20 to 30 mph in an uptown direction on Magazine Street. He stated that he observed the bus in the parking lane, and proceeded to pass around the bus after blowing his horn and flicking his lights. When he was alongside the bus, it began pulling out onto Magazine Street and having spotted an oncoming car, Blakeslee accelerated his vehicle to about 40 mph and blew his horn. He stated that after he completed his pass he noted a car in front of him in the same lane of travel and he brought his car to a dead stop. He estimated that the bus was about twenty feet behind his vehicle when he brought it to a halt.

Johnson, the bus driver testified that after his passengers disembarked at Joseph Street he checked his rear view mirror before pulling out and did not see any cars approaching. Nor did he hear any honking. He first saw the Blakeslee vehicle as it passed the left front wheel of his bus. He stated that Blakeslee was going about 30 mph when he pulled his car in front of the bus and came to a stop about five feet in front of the bus. Johnson said he immediately applied his brakes but did not have time to stop and avoid the collision. He testified that there were no cars in front of the Blakeslee vehicle.

Mrs. Alice Sonca was a passenger on the bus and was seated behind the driver on the front long seat. She testified that as the bus was pulling onto Magazine Street after making a stop a car traveling “awfully fast” pulled out in front of the bus and stopped about four feet in front of the bus. She had not heard a horn blowing. She stated that there was no traffic in front of the Blakeslee vehicle.

Mr. Charles Fontana, also a NOPSI bus driver was standing in front of the bus barn on Magazine Street. He heard a horn blowing and saw the Blakeslee vehicle passing around the bus and stopping dead no more than ten feet in front of the bus. He testified that he looked in front of the car to see what caused the driver to stop so abruptly but saw no traffic at all in front of the vehicle.

The trial judge found that the accident was caused by the negligence of defendant Blakeslee in bringing his vehicle to a sudden stop in front of the bus when it was unsafe to do so and without allowing the bus driver sufficient distance to bring the bus safely to a halt. The court also made the factual determination that there were no vehicles in front of the Blakeslee vehicle causing him to come to a stop. The record clearly supports these findings.

We are aware of the high degree of care required of public carriers to their fare-paying passengers. It is well settled that the mere showing of an injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely imposes upon the carrier the burden of exculpating itself from negligence Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.1974). However, we find that defendant NOPSI has successfully met this burden of proof.

The Supreme Court in Gross v. Teche Lines, 207 La. 354, 21 So.2d 378, 382 (1945) enunciated the duty of the public carrier as follows:

“ * * * A carrier of passengers is liable for the slightest negligence which contributes to an accident that causes injury to a passenger but is not an insurer of the passenger’s safety against negligent acts of third parties and their palpable disregard of the law. The highest degree of care doctrine is not synonymous with a guarantee of the passenger’s safety against any possible injury. Until there is some indication, which would require a vigilant, competent, and experienced driver exercising the highest degree of care to observe the contemplated reckless and unlawful act of another, it is not negligence on his part to fail to do so. To hold otherwise would require the operator of a passenger vehicle to foresee every unexpected and sudden contingency. To place such an obligation on him would require him to speculate with mere possibilities and pure conjecture. *

We are aware that a following motorist who strikes a preceding motorist from the rear is presumed to be negligent. However, the following motorist may escape liability in a rear end collision by establishing that the unpredictable driving of a preceding motorist created a sudden emergency which the following motorist could not reasonably have anticipated. Eubanks v. Brasseal, 310 So.2d 550 (La.1975). We find that Blakeslee created a sudden emergency by unnecessarily bringing his vehicle to a halt within five to ten feet of the moving bus. The bus driver could not have anticipated such reckless conduct on Blakeslee’s part. We conclude that the defendant bus driver acted prudently and reasonably under the circumstances and is not guilty of the slightest negligence. See Walker v. New Orleans Public Service, Inc., 245 So.2d 763 (La.App. 4 Cir. 1971); Alphonse v. New Orleans Public Service, Inc., 138 So.2d 610 (La.App. 4 Cir. 1962).

The judgment of the district court is affirmed.

AFFIRMED.


author: SAMUEL, Judge.

text:
    Jack N. LEE d/b/a Lee’s Furniture & Appliances v. Mary L. Rousell, wife of/and Arthur ROUSELL.
    No. 8224.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Neil Levith, New Orleans, for plaintiff - appellant.
    Anthony J. Russo, New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Mary L. Rousell and her husband, Arthur Rousell, on two promissory notes dated, respectively, October 19, 1971 and June 21, 1972. Each note was secured by chattel mortgage on home furnishings or appliances.

Defendants answered and asserted the discharge of plaintiff’s debt in bankruptcy resulting from the adjudication of defendant Arthur Rousell as a bankrupt upon the filing of his bankruptcy petition on July 22, 1974.

After a trial on the merits, judgment was rendered in favor of defendant, Arthur Rousell, dismissing plaintiff’s suit. Plaintiff has appealed.

The record shows plaintiff was listed as a creditor on Schedule A-2 attached to defendant’s bankruptcy petition. However, his address was listed as “unknown”. It was stipulated “Lee’s Furniture & Appli-anees” was listed only in the Kenner section of the Greater New Orleans Telephone Directory for 1974 and the correct address of this business was given in that section of the directory as 133 Levee View Drive, plaintiff’s home. It is also uncontested plaintiff had no actual notice of the bankruptcy proceeding.

Plaintiff’s business was conducted primarily on a door-to-door basis. He had no store or showroom, but instead sold furniture and appliances by use of a catalogue. He contacted customers, displayed the cata-logue to them, and on most occasions they made purchases directly from the catalogue. On a few occasions, he transported customers to showrooms of other business establishments so they could view the desired merchandise prior to purchase. Defendant’s wife made one such trip to a showroom or warehouse in Orleans Parish. Plaintiff collected his accounts by mail, self addressed to a post office box or directly from the customer at the customer’s home. At no time did defendants have occasion to go to plaintiff’s home address, which was the address listed in the Kenner portion of the telephone directory.

Defendant’s wife testified she conducted all family business with plaintiff. She indicated most payments were made by her at her front door on a weekly basis and she never knew plaintiff’s address as 133 Levee View Drive in Kenner.

Defendant and his wife lived together in Marrero, Louisiana, an unincorporated area in the same parish with Kenner, but on the opposite side of the Mississippi River. In March, 1974, Mr. and Mrs. Rousell had domestic difficulties, and she left the matrimonial domicile. At that time she discontinued paying plaintiff’s promissory notes, and she testified she destroyed or took with her all of the household bills and documents.

Defendant testified he made numerous efforts to locate plaintiff’s address, but was unable to do so. His problem was made more acute by his wife’s leaving the matrimonial domicile with all domestic papers and documents.

Defendant’s attorney testified he made numerous attempts to locate plaintiff’s address and he admitted checking the Greater New Orleans Telephone Directory. He assumed, however, that plaintiff’s address would be Orleans Parish since he did not know the showroom to which plaintiff took Mrs. Rousell belonged to another business establishment. At that time, although contained within the same volume, listings for the City of Kenner were in a separate section of the Greater New Orleans Telephone Directory.

Plaintiff’s attorney further testified he contacted other furniture companies and finance companies in an attempt to locate the address, but none had ever heard of Lee’s Furniture Company. Moreover, Mrs. Rou-sell advised defendant’s attorney she had destroyed all household bills and documents and had no idea of plaintiff’s address.

Section 17(a)(3) of the Bankruptcy Act provides that a bankrupt’s debt is not dis-chargeable if it has not been “duly scheduled.” Section 7(a)(8) of the Act provides a bankrupt must list the name and home or business address of a creditor, and if the address is unknown, that fact must be stated. Thus, the issue before us is not a failure to schedule the creditor or a failure to give a creditor’s proper address. The issue is whether the appellee made a sufficiently due and diligent search to find plaintiff’s address as to afford him legal justification for listing that address as “unknown.”

The reasons given in the testimony for defendant’s lack of actual knowledge of plaintiffs address are sound, and they were accepted as true by the trial court. The degree of diligence exercised by defendant must be viewed in light of the nature and scope of plaintiff’s business in order to determine if he made reasonable efforts to locate the address. Plaintiff operated his furniture and appliance sale business from his own home. He had no showrooms, sold almost exclusively from a cata-logue, and conducted his business on a home solicitation basis. A large proportion of plaintiff’s collections are made by the plaintiff personally at his customers’ doors. Only occasionally were some of his payments mailed in self-addressed envelopes to a post office box. Plaintiff’s business was so small in scope that it was unknown in the general business community. The modest nature of plaintiff’s business is demonstrated by his failure to obtain a listing of his business in the metropolitan portion of the Greater New Orleans Telephone Directory, but instead he chose to list his business only in the section of that directory containing City of Kenner listings.

Defendant, a fourth grade dropout, never did business with plaintiff, and upon his wife’s leaving the matrimonial domicile with family business records, he was left without recourse to acquire information regarding his creditors except that which might be contained in the advertisements and business lists, such as the Greater New Orleans Telephone Directory. Even after defendant’s attorney contacted his wife, he learned she had destroyed the business records and did not herself know plaintiff’s address. Defendant or his attorney looked in the metropolitan listings of the telephone directory for plaintiff's address and inquired of other furniture stores and finance companies to ascertain plaintiff’s whereabouts. Had plaintiff been listed in the telephone directory in the normal manner, or had plaintiff’s business been known in the general business community, defendant or his attorney could have located his address by using the method they chose to employ. Defendant and his attorney did not locate plaintiff’s address because of the modest nature of plaintiff’s business and because of the apparent almost studied efforts of plaintiff to maintain his business anonymity.

Under all the circumstances of this case, we cannot say the trial court committed error in deciding that the appellee had made a due and diligent search to locate plaintiff’s address and had acted reasonably in listing that address as “unknown”.

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

AFFIRMED.

      . Defendant Mary Rousell did not file a petition in bankruptcy, and a consent judgment in plaintiffs favor and against her was signed on September 12, 1975. That consent judgment is not before us on this appeal.

      . 11 U.S.C.A. § 35(a)(3).

      . 11 U.S.C.A. § 25(a)(8).

      . Compare Tamborella v. Robinson, La.App., 245 So.2d 476, where the court held scheduling only a creditor’s name and city was sufficient to allow a bankrupt’s discharge.

      . See Wyser v. Estrin, 285 App.Div. 827, 136 N.Y.S.2d 744.

      . See Miller v. Guasti, 226 U.S. 170, 33 S.Ct, 49, 57 L.Ed. 173.