author: SCHOTT, Judge. PER CURIAM.

text:
    Terrance E. DOWNEY v. Thomas R. CALLERY et al.
    No. 7565.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 12, 1976.
    Writs Refused Jan. 14,1977.

      Moliere, Flanagan & Arceneaux, James S. Arceneaux, Metairie, for defendants-third-party petitioners-appellants and appellees.
    Connolly, LaBranche & Lagarde, Frans J. Labranche, Jr., New Orleans, for plaintiff-appellee-appellant.

      Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for defendant-appellee Norwich Pharmaceutical Corp.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, New Orleans, for defendants-third-party plaintiffs-appellants Stokes Equipment, Div. of Pennwalt Corp.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

This case arose out of an industrial accident in which plaintiff suffered severe burns while in the course and scope of his employment by Century Laboratories, Inc. at its plant in Metairie, Louisiana. Made defendants were the nine members of Century’s Board of Directors, including Thomas R. Callery, who was also the president of the corporation; the Employers Liability Assurance Corporation, as insurer of the directors and officers of Century; Penn-walt Corporation and Norwich Pharmaceutical Corporation. From a judgment in favor of plaintiff against six of the directors, including Callery, and Employers for $75,-000, the defendants have appealed. Plaintiff has also appealed seeking an increase in the amount of the award and a reversal of the trial court’s dismissal of his claim against Pennwalt and Norwich.

In 1967 Norwich, a large pharmaceutical company, engaged Century to participate in the manufacture and packaging of sodium furadantin (Na Fd), a drug used in the treatment of urinary tract infections. Norwich held the patent on this drug and supplied to Century the raw material, crude or technical Na Fd, to be converted into sterile Na Fd and packaged in vials for ultimate use in medical treatment. Norwich provided Century with a detailed procedure for processing and packaging the substance.

Early in 1969 plaintiff was employed by Century to participate in the final stage of the process. He was to accept from another department cakes of the nearly finished substance, place them in an oven so as to reduce the content of moisture, methanol, and volatiles to an acceptable maximum percentage, then place the cakes in an electrically driven oscillator so that the substance would be ground into a fine powder, and then pack the powder in sterile bags to be placed thereafter in the vials.

On Friday, February 13, 1970, near the end of a work day he was prepared to remove one of these cakes from the oven for granulation but upon analysis by a Century chemist plaintiff was informed that the cake had not reached an acceptable point to permit granulation, so that the cake was left in the oven overnight for the baking process to be completed. On the following morning, plaintiff removed the cake from the oven and deposited it into the granulator. This machine was to operate with the cover closed on the hopper. Plaintiff noticed the material was not passing through the granulator so with the machine running he opened the hopper and with a metal spatula began to push the material down into the blades. The spatula struck the blades, whereupon an explosion and flash fire occurred causing the injuries to plaintiff.

Plaintiff alleges that Callery and the other directors were negligent because they failed to warn him of the explosiveness and inflammability of Na Fd and to supply him with static electricity free and non-inflammable clothing; supplied him with a metal spatula as opposed to another kind which would not generate sparks on contact with the parts of the stainless steel oscillator; maintained on the machine an electric motor which was not explosion proof and was not properly grounded; had two ovens in the room, both with open flame pilot lights, as well as an air conditioning unit with the potential for ignition; and permitted him to work under these conditions in an atmosphere where the dust of a highly explosive and inflammable material was present. Plaintiff also alleges those defendants failed to provide emergency showers, sprinklers or fire blankets, and generally ignored the necessity for a safety program which would have warned plaintiff and prevented the accident. He further alleges Norwich failed to warn him of the danger of fura-dantin and to train him properly so as to process the substance in safety. Finally, plaintiffs claim against Pennwalt is based upon the existence of defects in the machine itself which Pennwalt manufactured.

The trial judge found plaintiff’s working conditions were unsafe and he was not properly instructed with regard to the handling of Na Fd. He found that the granu-lator was hazardous under the circumstances and that safety was not given serious consideration by Century’s directors, noting that there had been two prior explosions at Bristol Laboratories which had processed Na Fd before Century was employed to do it for Norwich. Plaintiff was not advised of this although, the trial judge found “this fact was known to Century’s directors.” In exonerating Norwich the trial court found that it had warned Century of the substance’s dangerous characteristics but that Century’s directors failed to pass this on to plaintiff. As to Pennwalt, the court found that the machine was twelve years old and had been refurbished by Century so that the liability was confined to Century’s directors because the machine and plaintiff’s overall working conditions were unsafe. In order to review these findings, it is necessary at the outset to establish the identity and role of the individuals who were made parties to the suit and the others who had some connection with the Na Fd project from the time Century started it until the accident happened.

As has been said, cast in judgment were six Century directors among the nine who were sued. Included among the six were Callery and Walter M. Rovenski, whose part in the scenario will be discussed hereafter. The remaining four directors had nothing directly to do with the Na Fd aspect of Century’s business, which formed only fifteen percent of the total business. These four directors usually attended monthly board meetings and two of them served on a steering committee which was primarily concerned with hiring suitable management. Only one of these four testified at the trial. He professed ignorance about the characteristics of Na Fd and the technical processing thereof. He testified that safety procedures and policies were left to management. We are satisfied these four defendants were typical non-management directors who were, first, investors, and were, secondly, interested in the overall policies and control of the company, but who left the management of day-to-day operations to the president and the other management personnel.

In 1967 Rovenski was serving Century’s predecessor corporation in the capacity of a marketing representative. He had become familiar with Na Fd while employed by Philadelphia Laboratories, a company which had hoped to process Na Fd for Norwich. He initiated contact with Norwich on Century’s behalf, and after getting Norwich to survey Century’s physical plant and facilities procured the employment of Century. He became a director of Century in 1968, but had nothing to do with production or manufacturing procedures. His office remained in New Jersey where he continued to function as the marketing representative. He knew that Na Fd was hazardous, having been told that it was explosive, and he passed this information on to the then president of Century, Paul H. Bowdle, who resigned on July 13, 1969. Except for his attendance at board meetings on a monthly basis, Rovenski came to the plant in Metair-ie no more than four days a month. He had never heard safety discussed at board meetings but he relied on production and quality control supervisory personnel to look after safety procedures.

When Na Fd was initially processed at the Century plant, Leslie Boros was the technician employed by Century to perform under the supervision of Louis A. Wilson the duties later undertaken by plaintiff. He testified that he was well aware of the dangers involved in Na Fd with respect to inflammability and combustibility. This information had been conveyed to him by Russell Mosher and Richard Donchak, both Norwich employees who worked with Boros at the Century plant when the project was getting under way at Century. Furthermore, he had been warned by personnel of Bristol Laboratories, which had previously processed Na Fd, that all operations would have to be performed with extreme care. Finally, he had been told about two incidents of explosions from Na Fd at Bristol. In one a technician had placed a hot spatula into a batch of Na Fd precipitating an explosion and fire. Boros testified that he would never have opened the hopper while the motor was running because of the considerable amount of dust which would come out of the grinder and that he would not stick the spatula into the hopper because of the risk of a spark causing an explosion and flash fire. He would not have granulated the product in the same room with an oven containing a pilot light. He made a verbal report to Bowdle about the flammability of the product. He testified that he had discussed the explosive qualities of the substance with Mosher and that Mosher was well aware of its explosive qualities.

On the other hand, Mosher testified that he did not feel the substance was explosive although he had heard about the Bristol incidents and cautioned Century’s personnel that there was a possibility that it was explosive. He was aware that the material was inflammable and did convey this information to Boros, Bowdle and Wilson. Because the substance was inflammable he had recommended against the use of an electric granulator and he told Century’s personnel that the motor should be at least explosion proof if the electric granulator was used. He did not suspect that there was any danger in the use of a stainless steel spatula as opposed to some other type.

Donchak, another Norwich employee, who had been in charge of quality control in the early stages, gave testimony similar to Mosher’s in that he maintained he was not aware of the explosive quality of the substance although he was aware of its inflammability. His testimony was inconsistent with his admission that he knew about the incident at Bristol and with his testimony that he told plaintiff about this incident.

When plaintiff first worked at Century he was placed under the direct supervision of L. J. Novak with respect to processing of the substance and J. Huston with respect to quality control. The superintendent continued to be Louis Wilson. According to plaintiff, he was given no information regarding the explosive or highly combustible quality of Na Fd before the accident. Neither No-vak nor Huston was produced as a witness but a letter that was written by Novak in February, 1969, to Bowdle with copies sent to Huston and Wilson was introduced by plaintiff. It contained the following:

“Information on Furadantin Process Resulting from Conferences between Mr. Russell Mosher (Norwich Pharmacal) and Messrs. Huston, Novak and Wilson of Century Laboratories During Period from 2/23/69 to 2/26/69.
“9. Avoid static electricity, sparks, flames, etc. with dried Na furadantin. It is highly combustible in open containers and explosive in closed containers with excess air or oxygen.”

Plaintiff attaches great significance to this letter, contending that it establishes negligence on the part of the directors for failing to warn him about the product, since that letter was written long before his accident and was in the company files while he was employed but was never brought to his attention. The record contains no explanation why Novak, who wrote the letter, never conveyed a similar warning to plaintiff with whom Novak worked side by side while training plaintiff to process the substance. We are also left to speculate as to why Huston did not bring the letter or its message to plaintiff’s attention. Since they were plaintiff’s supervisors it would appear that they had a clear duty to plaintiff in this connection.

As to Wilson, he admitted that he participated in the discussions with Novak, Huston and Mosher, referred to in the letter, and yet he testified that he did not know Na Fd was explosive and did not recall combustibility of the material being discussed. When cross examined on the point, he said that he had not seen the letter before February, 1973, and then qualified his testimony by the explanation that he did not regard it as important and had forgotten about it. He admitted having set up the system for producing Na Fd at the outset but said when plaintiff was employed he worked directly under Novak and Huston, who both reported directly to the president, Callery. He disclaimed responsibility for the safety of plaintiff, maintaining that this was the responsibility of Call-ery and the two supervisors.

Plaintiff also testified that he was not told about the incident at Bristol Laboratories, contradicting Donchak’s testimony, which was, however, itself inconsistent. Plaintiff’s testimony on this subject was also contradicted by Leonard Levy, another Norwich employee, who helped train plaintiff and who testified that he had told plaintiff the substance was combustible.

Callery succeeded Bowdle to the presidency in July, 1969. He had been involved in contract marketing and had little experience in production. He knew nothing about the production of Na Fd. He took the position that the supervisors were responsible for safety. He did not know Na Fd was combustible and had gotten no complaints about safety procedures. There was no overall safety program because of the small size of the company and because each supervisor was expected to handle safety in his department. He had never seen the Novak letter and was unaware of the incident at the Bristol Laboratories. Dr. No-vak reported directly to him and he never discussed the hazards of Na Fd. At the time of the accident the sales to Norwich accounted for only one-seventh of the company’s total sales.

Finally, Margarette Burchett, employee of Century in quality control, testified that she was the one to test samples of the cakes of Na Fd to determine moisture, methanol and volatile content. While the procedure required that she issue a pink release slip to plaintiff before the material could be granulated, in this case she told plaintiff on the Friday before the accident that the material should remain in the oven for several more hours after which it would be in order for him to granulate the material. The most significant part of her testimony, however, was that after plaintiff’s accident she conducted an experiment in which she vacuum dried some of the Na Fd, and after it had cooled down the material crept up the sides of the vial. She touched the side of the container with a teflon stirring rod and it exploded.

From the foregoing testimony the following facts emerged: Na Fd was inflammable and combustible, and when ground to a fine powder almost devoid of moisture it would be likely to explode with a flash fire if exposed to any point of ignition. When plaintiff opened the hopper while the gran-ulator was in operation much of the substance in the form of dust flew out of the granulator and permeated the atmosphere of the room. The explosion was caused by a spark from contact between the stainless steel spatula and the stainless steel parts of the oscillator which were in motion.

From these findings it follows that the portion of the trial court’s judgment dismissing plaintiff’s claim against Penn-walt must be affirmed. The evidence does not support plaintiff’s theory that the accident was caused by a defect in the granulator dating back to its manufacture by Penn-walt.

The trial judge apparently accepted the testimony of plaintiff, that he was never told about the explosiveness of the substance although this seems almost inconceivable in view of the fact that he was working alongside of Novak for a considerable period of time. Nevertheless, we do not substitute our judgment for the trial judge’s in a case of credibility call. Consequently, we find that there was a failure on the part of someone to warn plaintiff about the danger of the substance which failure caused his injury.

The trial judge exonerated Norwich and we find no error in this conclusion. Boros was an employee of Century before plaintiff became employed and he was well aware of the danger of the substance. No-vak, plaintiff’s superior in the chain of Century’s command, was well aware of the danger as demonstrated by the letter he wrote to the previous president, Bowdle. There is no support for the theory that Norwich failed to warn because Century, through these particular employees, had knowledge of the hazard.

The crucial question becomes whether the members of the board of directors, including president Callery, were legally liable to plaintiff because they failed to warn plaintiff of the hazard.

Canter v. Koehring Company, 283 So.2d 716 (La.1973) is a leading case on the problem of executive officer liability. There the Supreme Court said that the corporate officer is individually liable to a third person damaged solely by reason of the individual breach of the employment-imposed duty under these circumstances:

“1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
“2. This duty is delegated by the principal or employer to the defendant.
“3. The defendant officer, agent, or employee has breached this duty through personal (as contracted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
“4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.”

When these criteria are applied to Century’s directors we must conclude that there is no liability. There is no question but that Century Laboratories owed a duty of care to its employees with respect to general safety conditions in the plant. As to all of these directors, other than Callery, neither the evidence nor common sense would dictate that Century Laboratories delegated this duty to individuals who had only an investment oriented, occasional connection with the company. Plaintiff has cited no authority which would make such occasionally connected directors responsible for injuries to employees which can be attributed to inferior safety standards in the operation of the company’s business.

On the other hand, it can be said that Century, like any corporation, did delegate the duty of providing safe working conditions to employees to its president, Callery. However, it must be shown that Callery has breached this duty through personal fault and not merely through technical or vicarious fault, and with regard to personal fault, personal liability cannot be imposed upon Callery simply because he was president; he must have a personal duty toward plaintiff which specifically caused plaintiff’s injury. Callery testified that he was unaware of the danger of Na Fd and had never seen the Novak letter. Apparently, plaintiff would contend that he breached a personal duty to plaintiff because he failed to find out about Na Fd’s propensities or that he failed to read all of the letters in the files of Century with respect to sodium furadantin. Even assuming that this has merit, the Canter case obliges us to hold that where Callery delegated with due care to responsible subordinates his general responsibility to plaintiff Callery was not himself personally at fault and liable for the negligent performance of that responsibility unless he should have known of its nonperformance and nevertheless failed to cure the risk of harm.

The evidence shows that the very person who wrote the letter to Callery’s predecessor on which plaintiff relies most heavily was a direct supervisor of the plaintiff. The only knowledge Callery could have about the hazard would come from the letter which Novak wrote and it would not seem reasonable to fault Callery for failing to learn the contents of Novak’s letter so as to inform plaintiff of those contents, when Novak himself was instructing plaintiff in the first instance.

It must be remembered that Callery was the president with overall administrative responsibility for a company doing a business of which Na Fd, processing was only about 15%. This was a relatively small company and there was no individual charged with the overall safety of the plant. It was reasonable for Callery to delegate safety to the individual supervisors who, in this case, were Wilson, Novak and Huston. Wilson and Huston were sent copies of Novak’s letter and were well aware, or should have been aware, of the hazard to which plaintiff was exposed. The rule of Canter v. Koehring imposes liability or responsibility on either or all of these three employees, yet none were defendants in this case.

Accordingly, that part of the judgment in favor of plaintiff against defendants Ro-venski, Clancey, Buckley, Callery, Herpich, Garrett and Employers Liability Assurance Corporation, Ltd. is reversed and there is judgment in favor of these defendants, dismissing plaintiff’s suit at his cost.

That portion of the judgment which dismisses plaintiff’s claim against Pennwalt and Norwich, and dismissing the third-party demand of Rovenski, et al. are affirmed.

REVERSED IN PART.

AFFIRMED IN PART.

ON APPLICATION FOR REHEARING

PER CURIAM.

In his application for rehearing plaintiff takes the position that we have substituted our judgment for that of the trial court in finding of fact beyond the acceptable limits of appellate review as set out in Canter v. Koehring, 283 So.2d 716 (La.1973). He points to the trial judge’s findings that the defendant directors were aware of two pri- or explosions of Na Fd at Bristol Laboratories as compared to our findings that Call-ery, the president and a director of Century, was unaware of these incidents.

The record is devoid of any evidence to show knowledge on Callery’s part of the Bristol incident or the propensities of Na Fd. His testimony which is unrefuted was that he worked for Bristol in the administrative and marketing area at its New York office while the laboratory was located in Syracuse. As to the Novak letter, plaintiff denied having seen the letter, and there is no evidence to refute this testimony. In any event, we held in our original opinion, and reiterate here, that actual knowledge is not the issue. Callery is absolved from liability under the authority of the Canter case because the record shows that there was a delegation of his general responsibility for safety in the use of Na Fd to responsible subordinates, particularly Dr. Novak who, by plaintiff’s own admission, was his supervisor and by Callery’s uncontradicted testimony was the person in charge of safety in the Na Fd operation. In addition to what we said in our original opinion, it should be mentioned that Dr. Novak was a technical person with a Ph.D. This delegation by Callery meets the criterion established in the Canter case. It relieves Call-ery of liability because there was a delegation with due care to some responsible subordinate.

It becomes obvious that the basis for our holding is not at all a finding of facts inconsistent with that of the trial judge because he did not reach that fact question at all. He made no finding as to whether or not Callery delegated his general responsibility for safety in the handling of Na Fd to a subordinate and whether or not that subordinate was “responsible.” We made affirmative findings on these factual issues and, further, that Callery was entitled to rely on Novak and was not liable on the theory that he should have known of No-vak’s “non-performance or mal-performance” of his delegated duty.

In his application for rehearing plaintiff says the following:

“On Page 10 of this Court’s Judgment the conclusions as to how the accident occurred are not substantiated by any facts in the record.
1. Plaintiff did not open the hopper while the granulator was in operation.
2. Dust did not fly out and permeate the atmosphere.
3. The explosion was not caused by the stainless steel spatula striking the stainless steel oscillator.”

On point 1, we acknowledge that our statement was not technically accurate. Plaintiff testified that he turned off the granulator, opened the hopper, and then started the granulator again while he stuck the spatula down toward the blades. In any event, the granulator was operating with the hopper open, so that our original statement is essentially correct.

On point 2, this would seem to be the logical result of a dry substance being ground into a fine powder in an open container and would require no evidence to support it. In any event, Leslie Boros, who was plaintiff’s predecessor in his job, testified that the grinding operation created dust inside the hopper and he would wait a few minutes after grinding before opening the hopper to prevent the dust from coming out.

On point 3, our review of plaintiff’s own testimony along with that of Margaret Bur-chett, who was plaintiff’s own witness, and Boros, who was no longer employed by defendant and whose testimony was clear, uncontradicted and unimpeached led us to conclude that it is more probable than not that this is how the accident happened.

It must again be emphasized that the trial judge made no findings on these points at all so that no “manifest error rule” applies.

Plaintiff has emphasized in application for rehearing what was said in his original brief and argument with respect to the alleged overall lack of safety in the Century plant. The trial judge found that general conditions in the plant were unsafe and that Century’s directors did not give serious consideration to this problem. Plaintiff makes much of the lack of emergency showers, non-inflammable clothing and a regular safety program. The facts of this case do not show that any of these was the cause of plaintiff’s accident. Plaintiff’s accident was caused by his mishandling of an explosive material. This accident could not have been prevented by any safety program or installation of any of the devices which plaintiff says were lacking, but could only have been prevented had Dr. Novak himself warned plaintiff about the possibility of a spark igniting the dried Na Fd. Assuming thát it could have been anticipated that the steel spatula striking the steel oscillator blades could have ignited the dust of the Na Fd in the hopper, the only person who conceivably could have anticipated such an event was Dr. Novak. He was supervisor of plaintiff and to him was delegated the responsibility of plaintiff’s safety in working with the Na Fd. None of these other factors was the cause of the accident.

Finally, plaintiff has referred us to Galloway v. Employers Mutual of Wausau, 286 So.2d 676 (La.App. 4th Cir. 1974), writ refused La., 290 So.2d 333. A reading of that case demonstrates the distinction in the instant case which requires an opposite result. The three executive officers in Galloway were in close contact with plant environment. The president of the company had bought the lathe that injured plaintiff and helped plaintiff install it when it arrived. There was ample evidence that all three individual defendants were responsible for the purchase and the use of the unsafe lathe. They had actual knowledge of the unsafe conditions which caused plaintiff’s accident and they did not remedy them although they had it in their power to do so. There was no delegation by the three of their responsibilities for safety to a responsible subordinate.

The Galloway case did not turn on the Can ter principle that there is no liability on the executive officer who made a delegation of his general responsibility for safety to a responsible subordinate, and it is this principle which requires an exoneration of Callery from liability.

The application for rehearing is denied.

      . One of the experts in a report used this symbol to designate sodium furadantin. For brevity the writer will do likewise.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    A & M PEST CONTROL SERVICE, INC., et al. v. FEJTA CONSTRUCTION CO., INC., et al.
    No. 7590.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Baldwin, Haspel, Molony, Rainold & Meyer, Conrad Meyer, IV, New Orleans, for A&M Pest Control Service, Inc. and Dapper, Inc.
    Bienvenu, Foster, Ryan & O’Bannon, Hugh M. Glenn, Jr., New Orleans, for Hanover Ins. Co. and American Employers Ins. Co.
    Hammett, Leake, Hammett, Hulse & Nelson, John I. Hulse, IV, New Orleans, for Fejta Const. Co., Inc.
    Robert J. Young, Jr., Joseph R. McMahon, Jr., Edward L. Levert, Jr., New Orleans, for American Sprinkler Co. and Hardware Mutual Cas. Co.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Defendants — Fejta Construction Company (general contractor), American Sprinkler Company (subcontractor) and its insurer— appeal from a judgment in favor of plaintiffs for water damage to. a building and its contents as a result of a break in a cast-iron elbow of a sprinkler system installed in the building by the subcontractor. We affirm.

Judgment was rendered in favor of American Employers Insurance Company, the insurer of the building; in favor of Hanover Insurance Company, insurer of the contents (conventional subrogees); and, in favor of Dapper and A&M, owners, respectively, of the building and its contents, for uninsured damages.

Judgments in favor of the owners and Hanover Insurance Company were rendered against all defendants jointly, severally and in solido. The award in favor of American Employers Insurance Company, however, was rendered only against American Sprinkler Company and its insurer, and not against Fejta. Because American Employers was the insurer of both the owner of the building (under a homeowner’s policy) and of the general contractor (under a liability policy), the trial judge concluded that the obligation of Fejta to American Employers was extinguished by confusion. American Employers appeals from that part of the judgment exonerating Fejta from responsibility to it.

Judgment was further rendered in favor of Fejta on its third-party demand against American Sprinkler and its insurer for the full amount for which Fejta was cast in judgment. The trial judge found that American Sprinkler in its subcontract had agreed to indemnify Fejta from any loss or damage caused by the installation of the sprinkler system. American Sprinkler claims, on appeal, that Fejta’s negligence makes the indemnification clause of the agreement inoperative.

Before setting forth defendants’ contentions, some factual background is necessary. The building owner and Fejta entered into a contract for construction of the building to be occupied by A&M Pest Control. An adjacent parking lot was not supported by pilings as was the building. After the pilings for the building had been driven and the building slab poured, but before the parking lot was constructed, the owner decided that he wanted a sprinkler system installed in the building. Fejta subcontracted the work of designing and installing that system to American Sprinkler. The record reveals that in the installation of a typical sprinkler system in new construction, the underground piping is laid before the building slab is poured. In this way, the underground pipe surfaces through the building slab into the interior of the building. However, in the system designed and installed by American Sprinkler, in the instant case, because the slab had been poured before the sprinkler system was installed, the underground pipe leading from the municipal water line rose vertically outside the building and then entered through the wall.

A 6-inch pipe ran underground from the water main for a distance of approximately 35 feet to a point below the ground near the outside of the building. At this point, 90° elbows brought the pipe vertically from underground and then horizontally through the wall of the building. Once inside the building, a" 4-inch cast-iron elbow was used to turn the horizontal pipe vertically in order to connect to the main valve and the interior sprinkler network. The 4-inch cast-iron elbow immediately inside the building is the joint that ultimately ruptured and caused the damage.

The system was installed in late December, 1966. In January, 1967, the building was accepted and occupied. A 200-pound pressure test was performed on the sprinkler system in March, 1967, and no leaks were revealed. The system functioned without any complaints until September 14, 1968, more than a year and a half after the system was completed, when the cast-iron elbow inside the building ruptured.

In written reasons the trial judge stated:

“After reviewing all of the evidence this Court believes that the cast iron elbow was defective (having been defective before installation or having been broken during installation), that the parking lot subsidence created a downward pulling on the riser thus creating a tension in the system which led to its breaking at its weakest point, i. e. at the defective cast iron elbow.
“This Court believes that unions placed above and below the elbow, flexible couplings placed at the connection at the wall, and most importantly, a sleeve placed around the riser would have prevented the pulling on the riser and the creation of the tension on the sprinkler system which caused the bursting of the defective elbow and that the failure to make provisions for the subsidence effect on the sprinkler system pipe was a breach of the defendant’s contractual duty to perform the work in a workmanlike manner.”

The record supports this conclusion.

It is defendants’ contention that plaintiffs failed to meet the burden of proof required in a circumstantial evidence case, i. e., to produce sufficient evidence which excludes other reasonable hypotheses with a fair amount of certainty. Although conceding that the damage resulted from the ruptured elbow inside the building, Fejta contends that the evidence supports, in addition to plaintiffs’ hypothesis, several other reasonable causes for the occurrence of the fracture, which were not the result of Fejta’s negligence or lack of proper workmanship on the part of Fejta or American Sprinkler. We do not agree.

BURDEN OF PROOF

In actions under LSA-C.C. arts. 2762 and 2769, plaintiff must prove his case by a preponderance of the evidence. Joyner v. Aetna Casualty & Surety Company, 259 La. 660, 251 So.2d 166 (1971); Rathe v. Maher, 184 So.2d 256 (La.App. 1st Cir. 1966), writ refused, 249 La. 201, 186 So.2d 159 (1966). In cases of this kind, as well as in tort actions, this burden may be satisfied through direct or circumstantial evidence. Town of Slidell v. Temple, 246 La. 137, 164 So.2d 276 (1964); Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (rehearing, 1972); American Security Insurance Company v. Griffith’s Air Conditioning, 317 So.2d 256 (La.App. 3d Cir. 1975), writs refused, 320 So.2d 915 (1975) and 320 So.2d 916 (1975). As pointed out by Fejta, proof of the cause of the rupture in this case is circumstantial in nature.

The test of sufficiency in a circumstantial evidence case is set forth by the Louisiana Supreme Court in Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395, 397 (1963). In Naquin, the court said:

“ * * * Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would bre.ak the chain of causation.”

See also Vonner v. State Department of Public Welfare, 273 So.2d 252 (La.1973). In Jordan, supra, the Louisiana Supreme Court stated, citing Naquin:

“ * * * Whatever the descriptive term used, however, proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.”

Whether in an action under LSA-C.C. arts. 2762 and 2769 (implied warranty) or under LSA-C.C. art. 2315 (negligence), plaintiff is required to carry the burden of proof by a preponderance of the evidence, circumstantial or otherwise.

Causation, in this case, can only be inferred from circumstantial evidence surrounding the break. The building was unoccupied at the time of the incident and no one saw the elbow rupture. Witnesses arrived on the scene after the break and found fragments of the shattered elbow and extensive flooding. Though the parties concede that the ruptured elbow caused the flooding, the cause of the rupture is the primary issue in contest.

In this connection, Dr. Oscar Albritton, an engineer and metallurgist, testified that he noticed, on examination of the ruptured elbow, that one-third of the thickness of the elbow had oxidized or become rusted and the remaining two-thirds had not. From this observation, Dr. Albritton concluded that two distinct fractures had occurred. According to this expert, the first one (rusty crack) had occurred at the time of installation when the threads of the 4-inch steel horizontal pipe were too tightly screwed into the threads of the cast-iron elbow, causing the brittle elbow to crack, or the elbow was defective because of an existing crack before installation.

Dr. Albritton further indicated that the second one (fresh fracture) occurred on the day of the incident. The doctor was of the opinion that the elbow cracked partially at the time of installation; but, that no leak appeared when the pressure test was performed on the system in March, 1967 (approximately two months after installation) because the “compression” of the completed system held the initially cracked elbow intact.

Robert Kuhn, consulting mechanical and electrical engineer, stated in a written report of his inspection of the site following the break that the parking lot slab had sunk “about two inches” from its original level. Based on Kuhn’s report on subsidence, Al-britton stated that subsidence from the ground below the unsupported (by pilings) parking lot caused the slab to sink, resulting in stress on the immobile pipes. He further concluded that the tension placed on the system caused a rupture of the partially cracked cast-iron elbow.

Murvan Maxwell, an architect and fire protection consultant with regard to building codes, stated that flexibility in the underground connections would have allowed mobility of the pipes in the event of soil subsidence. Maxwell stated that use of flexible couplings and a sleeve would have provided this mobility. According to Maxwell, the sinking parking lot slab poured directly in contact with the vertical pipe exerted a downward force on the vertical pipe.

We reject, as did the trial judge, the argument that plaintiffs’ hypothesis does not exclude other reasonable causes for the rupture advanced by defendants. According to Albritton and Maxwell, defendants’ hypotheses are possibilities. However, the collective testimony of these experts indicated that the partially cracked elbow, together with soil subsidence and an immobile system, was the most plausible explanation for the cause of the rupture.

In support of one of the theories advanced by defendants, Stanley Fejta testified that excavation work in connection with the installation of a sewer line was being conducted in the vicinity of the building at the time of the incident. He stated that he inspected the scene the day after the rupture and saw “teethmarks” on the exposed underground sprinkler line leading from the city water main to the building. From the presence of these marks on the pipe at an approximate distance of 25 feet from the vertical riser, and from the presence of a “backhoe” (a piece of heavy equipment used to dig trenches) in the area, the witness inferred that a blow had been administered to the underground sprinkler pipe in the course of the sewer excavation and that the shock had been transmitted to the elbow inside the building, causing it to crack. Significantly, however, the witness was unable to corroborate the existence of these marks. Though he claimed to have taken photographs of them, he was unable to produce them in court. Furthermore, Fejta’s testimony was contradicted by Earl Hirsch, president of A&M Pest Control, who stated that there was no open excavation work immediately before or following the incident. We might add that Maxwell indicated that (assuming the backhoe struck the water line) the impact from the backhoe would be lessened by the absorption effect of the soil in which the sprinkler pipe was embedded. According to Albritton, assuming that the shock of the blow was transmitted to the vertical riser, it would have been more probable that the outside elbow of the system would have cracked before the interior (provided no defect existed in the inside elbow). Furthermore, Albritton added that if the backhoe had struck the pipe, the fracture would have been immediate and not delayed. The record does not indicate the rupture occurred immediately following an impact.

Defendants also hypothesize that the rupture could have been caused by a vehicle striking the vertical riser in the parking lot. Fejta testified that he saw scratch marks and tire treads on the riser, indicating that vehicles had struck the vertical pipe, thereby causing the initial crack in the culprit elbow. This testimony again was contradicted by Hirsch who stated that he saw no marks on the riser and also that protective stanchions of sufficient strength were placed around the vertical riser as soon as the parking lot could be used. Furthermore, according to Albritton, assuming that vehicles collided with the riser, the rupture of the system would have occurred immediately at the time of impact, rather than causing a delayed cracking, as in this case.

Under the circumstances, we conclude, as did the trial judge, that the circumstantial evidence on causation was sufficient to exclude other reasonable hypotheses with a fair amount of certainty. Plaintiffs carried the burden of proof on causation by a preponderance of the evidence.

SOLIDARY LIABILITY OF CONTRACTOR AND SUB-CONTRACTOR

Defendant, Fejta, seeks to be exonerated from responsibility for the reason that the sprinkler system was designed and installed entirely by American Sprinkler, and also because the owner’s architect had approved the plans. Citing LSA-R.S. 9:2771, Fejta argues that it performed the work according to plans furnished to it, which it did not make or cause to be made, and therefore, it is not liable for damage resulting from the defect in those plans. In rejecting this contention, the trial judge stated:

“In this case Fejta Construction Company, Inc. undertook the obligation of installing the sprinkler system and subcontracted the work to American Sprinkler Company who provided the plans and specifications for the system. Therefore, the plans and specifications of American Sprinkler Company for the installation of the sprinkler system are plans or specifications which Fejta ‘caused to be made’ and the statute is inapplicable.”

We agree. Furthermore, the defendant-contractor’s liability for defects in workmanship is set forth in LSA-C.C. arts. 2762 and 2769. Recovery is permitted to the owner under these Codal provisions in implied warranty when the contractor fails to perform work in a workmanlike manner or to use materials fit for their intended purposes. In Joyner v. Aetna Casualty & Surety Company, supra, a case where a swimming pool diving board failed because of defective installation, the Louisiana Supreme Court, relying on LSA-C.C. art. 2762, held the contractor and sub-contractor solidarily liable. See also Rinaudo v. Treadwell, 212 La. 510, 32 So.2d 907 (1947). Based on the authority of LSA-C.C. art. 2762 and the Joyner case, we conclude that judgment making Fejta solidarily liable with American Sprinkler is proper.

INDEMNITY

The parties do not dispute the existence of an indemnity contract between Fejta and American Sprinkler, in which the subcontractor agreed to indemnify Fejta for any loss incurred by the contractor in connection with construction of the sprinkler system. However, American Sprinkler contends that Fejta was negligent because of its failure to take any precautions to prevent sinkage of the parking lot slab. Accordingly, American Sprinkler reasons that Fejta’s negligence makes the indemnity agreement inoperative. American Sprinkler contends further that indemnification does not occur where the indemnitee (Fejta) is wholly or partially at fault, in the absence of any express contractual requirement of indemnification notwithstanding the indemnitee’s negligence. Because there was no such language in the contract, the subcontractor argues, no indemnification is owed. We do not agree.

As hereinbefore stated, under LSA-C.C. art. 2762, the contractor and subcontractor are solidarily liable to the owner for construction failures; however, as between the contractor and subcontractor, the subcontractor is a co-debtor primarily concerned with the obligation. By virtue of LSA-C.C. art. 2106, the subcontractor is “liable for the whole debt” and must indemnify his other co-debtor, the general contractor. See also Joyner, supra, 251 So.2d 171. Furthermore, because the trial judge did not make any specific finding of negligence on the part of Fejta and instead found the contractor liable only as a solidary obligor under LSA-C.C. art. 2762, we need not reach defendants’ contention that negligence of the indemnitee vitiates the indemnity contract. Accordingly, we conclude, on the basis of LSA-C.C. art. 2106 and the indemnity agreement, that American Sprinkler owes full indemnity to Fejta. See Joyner, supra, and Bewley Furniture Company, Inc. v. Maryland Casualty Company, 285 So.2d 216 (La.1973).

CONFUSION

Finally, we find no merit to American Employers’ claim that the trial judge erred when he failed to render judgment in its favor against Fejta. According to the trial judge, the obligation was extinguished by confusion because American Employers is also the liability insurer of Fejta. In our case, the qualities of debtor and creditor became fused in the same person, the insurer, and in such instance, confusion extinguishes the obligation. See LSA-C.C. art. 2217. Though American Employers was not a party defendant in this action, Fejta’s amended answer, which asserts that American Employers is its liability insurer, “sufficiently sets forth a set of facts from which a legal conclusion of extinguishment by confusion is found”. See Norris v. Allstate Insurance Company, 293 So.2d 918 (La.App. 3d Cir. 1974), writ refused, 296 So.2d 832 (1974). Under the circumstances, we conclude that American Employers’ qualities as a creditor (subrogee under plaintiff’s homeowner’s policy) and a debtor (liability insurer of the contractor) merged into one entity. Confusion operates to extinguish Fejta’s obligation to American Employers. The judgment is affirmed.

AFFIRMED

      . LSA-C.C. art. 2762 reads as follows:
      Art. 2762. Liability of contractor for damages due to badness of workmanship
      “Art. 2762. If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.”
      LSA-C.C. art. 2769 reads as follows:
      Art. 2769. Contractor’s liability for non-compliance with contract
      “Art. 2769. If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

      . The parking lot slab was poured in direct contact with the vertical pipe. A “sleeve” encasing the pipe would have prevented the slab from coming into contact with the vertical pipe. In such instance, a sinking slab would not have subjected the pipe (inside the sleeve) to the downward pull.

      . LSA-R.S. 9:2771 reads as follows:
      § 2771. Non-liability of contractor for destruction or deterioration of work
      “No contractor shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made ánd if the destruction, deterioration or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.”

      . LSA-C.C. art. 2217 reads as follows:
      Art. 2217. Confusion, definition
      “Art. 2217. When the qualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the obligation.”


author: STOULIG, Judge.

text:
    David F. CRAIG and Lionel E. Flotte, Jr. v. INTERNATIONAL TRI-D CORPORATION.
    No. 7592.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Max Nathan, Jr., Walter C. Thompson, Jr., New Orleans, for plaintiffs-appellants.
    Polack, Rosenberg, Rittenberg & Endom, Leon H. Rittenberg, Jr., Richard G. Verlan-der, Jr., New Orleans, for defendant-appel-lee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

Plaintiffs, David F. Craig and Lionel E. Flotte, Jr., as owners collectively of 34% of the stock of International Tri-D Corporation (International), seek a writ of mandamus directing the corporation (1) to hire a certified public accountant to audit the corporate books to determine its solvency; (2) to refrain from selling its only substantial asset, an apartment complex, pursuant to an alleged illegal resolution of the board of directors; and (3) to hold a shareholders meeting for the purpose of voting on a proposed sale of the principal corporate asset, should it be determined the corporation is solvent.

This suit was filed after four of the six directors of International who control 66% of its stock resolved to sell the Pier 8 Apartments for $1,650,000 upon concluding the corporation was insolvent. Its charter and bylaws do not specify a method for voluntary sale of an asset, but it is stipulated Louisiana law regulates this aspect of corporate business.

L.R.S. 12:121(A) and (B) state a voluntary sale of substantially all of a solvent corporation must be approved by a vote of two-thirds of the shareholders, while a two-thirds vote of the directors is required if the corporation is insolvent. The majority block in International lacks two-thirds of one share of stock needed to meet the statutory requirements for the voluntary sale of substantially all of its property by a solvent corporation.

Plaintiffs’ petition alleged the declaration of insolvency was made to circumvent the requirement of assent to the sale by two-thirds of the shareholders. Under C.C.P. art. 3865, on plaintiffs’ prayer, the trial court issued an alternative writ of mandamus to the defendant directing it to comply with plaintiffs’ demands or show cause to the contrary. (In the same petition plaintiffs also sought a permanent injunction. Defendant filed, inter alia, an exception of improper cumulation of actions, and the trial judge severed the claims. C.C.P. art. 464.) Upon hearing the rule, the trial judge recalled the writ of mandamus and vacated it, reserving to plaintiffs their right to try the permanent injunction at a later date. Plaintiffs have appealed.

The issue before this court is whether mandamus is an appropriate remedy for the relief sought. C.C.P. art. 3862 provides mandamus may issue in “ * * * all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice * * A writ of mandamus may be directed to a corporation to compel the performance of duties required by the corporate charter, the bylaws or the laws of Louisiana or to recognize the rights of its members and shareholders. C.C.P. art. 3864.

In this case plaintiffs cite no law or internal rule that would require the corporate directors to furnish them, on their demand, with a verified audit by a certified public accountant. In this respect this matter is distinguishable from Burguieres v. J. M. Burguieres Company, Ltd., the case appellants cite to support their demand for audit at the company’s expense. In Burgui-eres the directors failed to furnish in understandable terms the information they were required to provide the shareholders under L.R.S. 12:102(B). The stockholder was told by the corporation to have it explained by a certified public accountant. We held that because the law required the dissemination of this information, the stockholder should not be required to hire a certified public accountant to explain the “modern” accounting terminology used in the report.

The procurement of an audit is not a ministerial duty that can be compelled by mandamus in this case. The decision lies within the discretion of the directors, a majority of whom have decided not to incur this expenditure. The books of International are available to plaintiffs should they desire to have an audit conducted at their own expense.

Another object of appellants’ application for writ of mandamus is an order prohibiting the sale of the corporate realty. Because this relief is available via injunction (C.C.P. art. 3601 et seq.), mandamus does not lie (C.C.P. art. 3862). Plaintiffs are attempting to use mandamus to bypass the furnishing of security required in connection with the issuance of a temporary restraining order or a preliminary injunction (C.C.P. art. 3610) in the event they provoke a wrongful restraint that ultimately results in damages.

Finally, it would be premature to order a shareholders meeting without a pri- or determination of the financial condition of the corporation. In passing we note no attempt was made by Mr. Flotte, in his capacity as president, to call a special meeting of shareholders, nor did both plaintiffs, as shareholders of more than one-fifth of the total stock, attempt to provoke such a meeting through the secretary of the corporation prior to the filing of this suit. Both of these actions are authorized by L.R.S. 12:73.

In summary, appellants cite no law or corporate rule that obligates the directors to pay for an audit. They have the remedy of injunction available to protect their interest pending a determination of the legality of the proposed sale. Thus, mandamus does not lie.

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

AFFIRMED.

      .Mandamus would lie to compel a corporation to transfer stock (State ex rel. Pope v. Bunkie Coca Cola Bottling Co., 222 La. 603, 63 So.2d 13 [1953]) or to compel it to call regular meetings prescribed by the charter (Alexis v. Coker, 35 So.2d 907 [La.App.Orl.1948]).

      . A shareholder’s right to examine the corporation’s books may be enforced by mandamus. Carey v. Dalgarn Const. Co., 171 La. 246, 130 So. 344 (1930).

      . 312 So.2d 179 (La.App. 4th Cir. 1975).


author: BOUTALL, Judge.

text:
    Joyce L. THOMAS v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 7595.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Windhorst, Heisler, De Laup, Wysocki & Klein, Jerome M. Volk, Jr., New Orleans, for Joyce L. Thomas, plaintiff-appellant.
    Craig R. Nelson, of Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for Government Employees Ins. Co., defendant-appellee.
    Joseph M. Neilson, Metairie, for Jessie B. Hudson & Theodore Hudson, third party defendants-appellees.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

Joyce L. Thomas appeals a judgment awarding her $3,500.00 damages against her insurer, based on the uninsured motorist coverage and medical coverage contained in her automobile insurance policy. On appeal she urges as error insufficiency of damages and failure to assess penalties for timely payment of her medical claims under R.S. 22:658.

On October 29,1972, plaintiff, while driving her automobile on a favored street, struck the side of a vehicle attempting to cross that street without having stopped at a stop sign. The force of the collision threw her about in the front seat of her automobile causing her to suffer a blow on her leg in the thigh area, muscle strain of the back and neck and a blow to her chest caused by the steering wheel. The main issue is the effect of the blow to her chest. The trial court award is within the “much discretion” of the judge for these injuries provided there were no substantial chest injuries. On the other hand, much of her treatment and work loss was occasioned by her subsequent chest pains, and if that condition is substantially related to the trauma, it is apparent that she is entitled to damages at least quadruple the amount of the award.

The trial court rendered the following reasons for judgment:

“Mrs. Thomas described her injuries, including chest pains which were first experienced in April of 1973. The medical testimony was somewhat vague, although it is certain that Mrs. Thomas experienced chest pains prior to the accident and likely that the trauma did aggravate to an uncertain degree Mrs. Thomas’ muscular-skeletal disease.
“Mrs. Thomas sustained back, shoulder, neck and leg injuries as well as to her chest. The extent of all of these injuries was in serious dispute.”

The accident occurred on the night of October 29, 1972 and Mrs. Thomas began experiencing pain later that night. The next morning she sought medical treatment from Dr. Henry W. White. At that time he noted she was complaining of chest and shoulder pains and soreness of the left leg and that her neck was beginning to become slightly tender. He found she had tenderness over the anterior chest wall and over the anterior thigh and some loss of the cervical lordotic curve which the radiologist thought may be due to muscular strain. He offered conservative treatment and when she did not return to his office for further care, he concluded that she had no significant prolonged abnormalities from this accident.

Mrs. Thomas testified she continued to have some pain which got worse and on November 20, 1972, she sought the services of Dr. Michael Friley, complaining of pain in her left shoulder, left leg near the hip, lumbo-sacral and cervical spine areas. He found spasm of the left paraspinus cervical muscle and the left trapezius muscle in the neck, as well as the left paraspinus muscle in the lumbar region. He concluded that she was suffering a muscle strain in the cervical and lumbar region and began conservative treatment. He prescribed physical therapy, muscle relaxants and analgesics.

It was not until February 12, 1973 that she complained of any chest pains to Dr. Friley. At this time she was undergoing physical therapy, and she was complaining that the physical therapy caused her to have chest pains. (Note Miss Thomas’s testimony on page 73). At this time, it would appear that the doctor’s main concern shifted from her back and she was admitted to West Jefferson Hospital on April 3,1973 for evaluation of pain in her left leg and arm, dizziness and chest pain. There was consultation with Dr. Culicchia, a neuro-surgeon, who concurred with the therapy she was receiving. She was seen by an internist, Dr. Marra, for examination and treatment of her chest problems. She had electro-car-diograms during that time which showed evidence of an ischemic myocardial disease. It was concluded that she was suffering angina pectoris as a result of the latter.

After the hospitalization, she soon became asymptomatic as related to her back and received no further treatment for it. However, her chest pains continued and she underwent a regime of treatment from Dr. Marra. The chest pains having become worse in August, 1973, he had her readmitted to West Jefferson General Hospital for a more indepth study of her condition and for several other specialized tests not previously given. After that hospitalization it was determined that she was suffering from costochondritis, which is an inflammation of the cartilage connecting the ribs to the sternum.

In relating these two conditions, angina pectoris and costochondritis, to the collision, there is a variance in the testimony of the doctors. Dr. Friley, who did not treat for costochondritis, was of the opinion that the angina pectoris was not caused directly from trauma but was caused by the ischemic myocardial disease of long standing and that the symptoms of angina could be precipitated by hypertension, stress and anxiety resulting from an automobile collision. However, that condition was ruled out by Dr. Marra with his later and more reliable diagnosis of costochondritis, which is a mus-culo-skeletal condition which could be caused as a result of trauma. He could not state positively in this case that it was, only that it was possible.

The testimony of Dr. Oelsner is that if costochondritis was due to trauma, one would expect the symptoms to appear at the time of the trauma and dissipate shortly thereafter. Considering all of the evidence in this case, it is apparent that the trial judge found only that the aggravation of the pre-existing chest condition was that occasioned for the short period of time immediately following the accident when plaintiff was treated by Dr. White, and that these later chest pains and the treatment therefor was not as a result of the automobile collision. There is ample evidence in the record to support such a finding, and we are unable to say that the trial judge is in error, except to correct the date of onset from April, 1973 to February, 1973. Accordingly, we affirm the award of damages.

The second issue herein is the failure of the insurer to timely pay the medical expenses, which would result in assessment of penalties, etc. Unfortunately, the rapid handling of this claim was interrupted by a change in attorneys caused by the death of the original attorney. The record reflects that there was an agreement in existence that the insurer would make payment after the medical bills were submitted in entirety. Relying upon this agreement, the insurer paid to the plaintiff, before trial, those bills which it believed to be pertinent to the injuries caused by the collision considering that agreement. Because of this, plus the finding of the court that the later chest pains were not related to the collision, we find no arbitrary refusal to pay.

For the reasons above stated, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Jo Ann Pizani, wife of Calvert P. DURAPAU, Sr. v. Calvert P. DURAPAU, Sr.
    No. 7596.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Craig J. Cimo, Gretna, for plaintiff-appel-lee.
    Schafer & Schafer, Thomas E. Schafer, III, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Defendant-husband appeals from a judgment granting his wife a separation from bed and board based on cruel treatment. We affirm.

Appellant seeks a reversal on three grounds: 1) that the uncorroborated testimony of the wife that defendant struck her on May 18, 1975, the day before the actual separation of the parties, does not constitute a preponderance of evidence to support the judgment in favor of the wife; 2) that (assuming arguendo, the evidence establishes an act of cruelty) a single, isolated instance of cruelty does not constitute sufficient basis for the judgment; and, 3) that the wife was also at fault, and, consequently, this mutual fault on the part of the spouses will not support a judgment in favor of either party.

The wife stated that the husband, without cause or provocation, choked and punched her about the face and made a threat on her life on the evening of May 18, 1975. This violence, she testified, was the result of an argument that had ensued that evening when she informed her husband that their oldest son was accepting employment with one of the husband’s business competitors. The next morning the wife left the family home and has lived separate and apart from her husband since that time.

Because no one witnessed the incident, the husband contends that the wife’s testimony as to this act of cruelty is uncorroborated and, therefore, insufficient to satisfy the burden of proof. We have no quarrel with the cases cited by defendant which state that uncorroborated testimony of one spouse does not constitute a preponderance of the evidence required for a separation from bed and board. However, the cited cases are inapposite. In our case, in addition to her testimony regarding the incident, the wife introduced pictures of herself .which were taken five days after the occurrence. These photographs show bruises on her face. Furthermore, three witnesses testified that they had seen the wife prior to the night in question at which time they observed no facial injuries. They further testified, however, that they had also seen her following the incident at which time they observed cuts and bruises about the face. One of these witnesses, a teenage son of the litigants, testified that he returned home on the evening of the incident, and that his mother “sounded upset” and “didn’t talk right”. On the following morning, the son noticed that his mother’s face was swollen. The husband admitted that an argument had taken place on May 18 but denied striking plaintiff. Considering this evidence, we cannot say that the wife’s testimony was uncorroborated.

Defendant’s second contention, that this single act of cruelty will not support the judgment of separation, is also without merit. The husband conceded that he and his wife had been arguing for a period in excess of three months prior to the incident on May 18. Plaintiff’s mother testified that her daughter was “crying over the telephone all the time” and that defendant was “angry all the time” because the oldest son would not work with him. The wife stated that her husband had made threats to physically harm her and the children, and that she developed a nervous stomach condition as a result of the bickering. Furthermore, she testified that on a previous occasion, eleven years before the incident, her husband had beaten her and that consequently they had separated for a short time. We conclude, under the circumstances, that the judgment of separation is not based solely on the one incident, but rather on a totality of marital discord beginning more than three months before the May 18 incident.

Finally, we conclude defendant’s third contention is equally unfounded. Other than the husband’s unsupported statement that he believed his wife had turned the children “against” him, no substantial evidence was offered to show fault on the part of the wife. The doctrine of mutual fault is inapplicable in this case.

The judgment is affirmed.

AFFIRMED.

      . Ellois v. Ellois, 145 So.2d 123 (La.App. 4th Cir. 1962); Barron v. Barron, 279 So.2d 208 (La.App. 2d Cir. 1973); Johnson v. Johnson, 296 So.2d 470 (La.App. 2d Cir. 1974), writ refused, 300 So.2d 183 (La. 1974).


author: BEER, Judge.

text:
    ASSOCIATE MARINE DIVERS, INC. v. Michel LECLER and Michel Lecler, Inc.
    No. 7597.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    James T. Flanagan, Metairie, for plaintiff-appellant.
    William L. Von Hoene, New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and BEER, JJ.
   BEER, Judge.

On October 17, 1969, plaintiff-appellant, Associate Marine Divers, Inc. (hereafter, “Associate”), leased certain equipment to defendant-appellee, Michel Lecler, Inc. (hereafter, “Lecler”). Michel Lecler testified that he had physical possession of the equipment for four days and then returned it to Associate’s warehouse at 1130 Destre-han Avenue in Harvey, Louisiana, pursuant to the agreement. Lecler testified that he notified a Mr. Lott of Associate of his intention but was informed that Associate no longer had a place to store the equipment. Later, there were negotiations between these parties which eventually resulted in Lecler taking over the lease on the warehouse previously occupied by Associate and the returned equipment was stored therein. On November 5, 1969, Lecler signed an agreement to purchase certain other equipment from Associate, the sale being conditioned, among other things, on the approval of the shareholders of Associate. That equipment which was the subject of this purchase agreement was also located at the warehouse in Harvey.

Lecler testified that some of the equipment covered by the agreement of November 5, 1969, was apparently stolen prior to the signing of the agreement and thus was not in the warehouse at the time the agreement was signed. Lecler also testified that the tentative sales agreement of November 5, 1969, was never concluded. Evidence in the form of certain letters confirmed Lecler’s testimony to the effect that the November 5, 1969 agreement was no more than an offer to purchase conditioned, upon assurances that there were no outstanding liens or encumbrances against the subject equipment as well as the approval of the stockholders of Associate.

Then, in 1971, some of the property listed in the lease agreement and in the sales agreement was seized pursuant to a default judgment entered against Associate in an unrelated lawsuit.

Associate contends that its shareholders ratified the contract to sell the equipment, thus finalizing it. However, Lecler failed to make payments pursuant to the lease agreement or the sales agreement. This precipitated an unsuccessful demand for the return of the equipment. Associate also contends that although there was a burglary at the warehouse, the property stolen did not include any of the equipment subject of the November 5, 1969 agreement. Leonard Waring, vice-president of Associate, testified as to nonpayment on the part of Lecler and also identified a Board of Directors Resolution authorizing Leighton Lott and himself to jointly sell the equipment. The resolution does not, however, address itself specifically to the contested sale. It simply states “that Leighton E. Lott and Leonard R. Waring, jointly and not individually, may authorize the sale of any part or portion of the assets or equipment of Associate Marine Divers, Inc. for the best interest of the corporation.”

The trial court determined that the November 5,1969 instrument was not a sale of the equipment which, nevertheless, remained stored at the warehouse occupied by Lecler from October, 1969, when they took over Associate’s lease; that although the equipment remained in the warehouse, it was not converted to the use of Lecler; that the equipment rented by Lecler under the October 17, 1969 rental agreement was used a total of four days by Lecler for which they owed $60.00 a day, or a total of $240.00, and that, in all pertinent instances, Lecler acted on behalf of Michel Lecler, Inc., and did not bind himself personally nor individually for the obligations which are the subject of this suit.

Although Associate contends that the November 5, 1969 instrument was a completed sales agreement and that the trial court erred in its finding, it is apparent that the primary obligations of the parties were subject to the happening of stated conditions, viz., shareholders’ approval and an assurance that the items involved were free of liens and claims arising under the Bulk Sales Act. The trial judge determined that said conditions were never fulfilled. The burden of establishing the validity of a contract rests upon the party who seeks to establish it. Staple Cotton Cooperative Assn. v. Pickett, 313 So.2d 612 (La.App.3rd Cir., 1975), citing Herbert v. Briley, 295 So.2d 607 (La.App.3rd Cir., 1974), writ refused, La., 300 So.2d 181. And the record supports the trial court’s conclusion that the burden was not met.

Canter v. Koehring Co., 283 So.2d 716 (La.Sup.Ct., 1973), stands for the proposition that:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact . . . .”

We turn to the October 17, 1969 lease agreement which provides that “Lessee is free to terminate this lease at any time. The daily rental shall apply until such time as the leased equipment has been returned to its original location.” This wording raises the question of whether the codal requirement of certainty regarding the term of the lease has been fulfilled. A lease for an indefinite term is nudum pac-tum, Bristo v. Christine Oil & Gas Co., 139 La. 312, 71 So. 521 (1916); but the term of a lease may be expressed by a stipulation that it continue during a given condition. Busch-Everett Co. v. Vivian Oil Co., 128 La. 886, 55 So. 564 (1911). Judge Culpepper’s dissent in Hartford Fire Insurance Co. v. Roger Wilson, Inc., 252 So.2d 161 (La. App.3rd Cir., 1971) is strong argument for the proposition that a lease is valid even though no time is specified when the lease can be terminated at the will of the parties. Judge Culpepper cites Chambers v. Vega, 18 La.App. 736, 137 So. 879 (Orl.La.App. 1931) in support of this thesis, said case being factually similar to the case at bar.

We believe that here the lease should be construed as containing a certain term pursuant to which Lecler effectively terminated the lease by returning the equipment to the designated location, 1130 Destrehan Avenue, Harvey, Louisiana. The trial judge’s holding that Lecler is obligated to Associate for rental payments during the four-day term of the lease is consistent with this determination and is supported by the record.

Accordingly, the judgment is, in all respects, affirmed. Costs of this appeal are to be paid by appellant.

AFFIRMED.

      . Notwithstanding the title “agreement” (signifying an agreement between the parties), the document so entitled was, in fact, only signed by Lecler.


author: SAMUEL, Judge.

text:
    Carol H. Mack, wife of/and Donald SHAW v. Mr. and Mrs. Ira E. HOPKINS et al.
    No. 7604.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Naccari, Laura, Hollis & Gray, Joseph J. Laura, Jr., New Orleans, for plaintiffs-appellants.
    Wiedemann & Fransen, Perrin C. Butler, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiffs, Mr. and Mrs. Donald Shaw, filed this suit against Mr. and Mrs. Ira E. Hopkins, United States Fidelity & Guaranty Company, their liability insurer, and their son, Wright Davis Hopkins, for damages resulting from an alleged attack on Mrs. Shaw by Wright Davis Hopkins on January 6, 1974. The theory of plaintiffs’ case is that the vicious propensities of Wright Davis Hopkins were known to his parents and they failed to take proper action by having their son interdicted or committed to an institution. The petition alleges the attack was without cause and “That prior to the attack the parents of Wright Davis Hopkins had full knowledge of his vicious propensities but failed to take such action [sic] to protect persons of the public and namely Carol H. Shaw from harm by taking such action as was necessary to interdict or commit him to an institution.”

Plaintiffs have appealed from a judgment maintaining an exception of no cause of action filed by Mr. and Mrs. Hopkins and their insurer and dismissing plaintiffs’ suit as to those three defendants.

For the purpose of the exceptions, all parties stipulated in the trial court that Wright Davis Hopkins was born August 12, 1953 and that he was judicially emancipated on October 18, 1971. In accordance with the intention of the parties, these stipulations will be treated as amendments to the petition for the purpose of considering the exceptions.

As Wright Davis Hopkins was born on August 12, 1953, he was 20 years, 5 months and 24 days old on the day of the alleged attack, January 6, 1974. Consequently, at the time of the alleged attack, he was legally a major. While parents are vicariously liable for the tortious acts of their minor, unemancipated children who either reside with them or are placed by them under the care of other persons, there is no authority under Louisiana law for holding parents so liable for the actions of their major children. On the contrary, when a child reaches 18 years of age he is a major and this majority deprives parents of their legal right to control him. When that right of control is lost, a parent may no longer be held responsible for lack of supervision as vicarious liability on the part of the parents for the torts of the child is predicated upon the very control and authority of the parents which has been lost.

In a case of this nature the only way in which liability could be imposed on the parents (or their insurer) is for the plaintiffs to allege and prove some act of negligence on the part or the parents, i. e., some breach of a duty they owe to the plaintiffs. Under the provisions of Civil Code Article 227, parents are under the obligation of supporting, maintaining and educating their children. However, this is a duty owed by the parents to the children. No law has been called to our attention, and we know of none, which provides that the parents of a major child who has “vicious propensities” owe a duty to third persons to interdict or commit such a child to an institution. Accordingly, we agree with the trial court that the petition does not state a cause of action.

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

AFFIRMED.

      . Those three defendants also filed an exception of no right of action.

      . Act 98 of 1972, effective July 26, 1972j provided that a person who is eighteen years or older “shall be regarded as being fully emancipated, . . . and shall have the same rights, duties, responsibilities and capacities as persons who are twenty-one years of age or older.”

      . Civil Code Articles 237 and 2318.

      . Act 98 of 1972 is pertinent in this case; C.C. Art. 37.

      . Frazer v. Day, La., 307 So.2d 733; Speziale v. Kohnke, La., 194 So.2d 485; Redd v. Bohan-non, La.App., 166 So.2d 362 (1964).

      . Speziale v. Kohnke, supra, footnote 5.


text:
    CHURCHILL FARMS, INC. v. The LOUISIANA TAX COMMISSION et al.
    No. 7605.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Phillip B. Smith, James J. Morrison, Jr., New Orleans, for Churchill Farms, Inc., plaintiff-appellant.
    Larry C. Pieno, Marrero, for Alwynn J. Cronvich, Sheriff & Ex-Officio Collector of Taxes for the Parish of Jefferson and the Louisiana Tax Commission, defendant-ap-pellee.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Robert E. Redmann, Asst. Atty. Gen., for the Louisiana Tax Commission, defendant-ap-pellee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

Plaintiff, Churchill Farms, Inc. (Churchill), after paying under protest $34,036.93 ad valorem tax for 1969 on immovable property it owns in Jefferson Parish, filed this suit for a refund of that proportion of the levy based on an increase in its assessment from $8,800 to $263,388. Plaintiff’s petition claims inter alia a deprivation of property without due process of law contrary to U.S. Const. Amendments 5 and 14 and LSA-Const.1921 Art. 1, § 2 in that it was never given the opportunity to be heard or to challenge the increase. Defendants’ exceptions of res judicata and no right of action were maintained and plaintiff’s suit was dismissed. Plaintiff has appealed.

This is the second suit plaintiff has filed based on these facts: For 1969 tax purposes the Jefferson Parish assessor valued approximately 4,000 acres owned by plaintiff corporation at $8,800 on the tax rolls. The assessment remained unchanged as it was processed by the Louisiana Tax Commission and accepted by the Jefferson Parish Council, acting as a board of review, which filed them with the clerk of the parish court. Later, the Louisiana Tax Commission, by order dated December 8, 1969, directed the Sheriff of Jefferson Parish to change the assessment from $8,800 to $263,388 and collect taxes on the new value.

L.R.S. 47:1951 et seq. (the “Assessment Procedure” section of the tax statutes) makes no provision for administrative review of an increase at this stage of the taxing process; however, L.R.S. 47:1998 permits any taxpayer wishing to challenge the legality or constitutionality of an assessment to file suit in the district court providing he has previously filed a sworn list of property and its valuation as required by L.R.S. 47:1956. This do-it-yourself assessment statute sets a filing deadline of April 1 of the year for which the tax will be imposed. Taxpayers en masse ignored its provision which required them to value their property at 100 percent because the local assessor could be depended upon to appraise its value at considerably less, the differential in percentage varying from parish to parish.

Churchill was one of the vast majority of Louisiana taxpayers who failed to file the sworn list of property for the 1969 taxable year. It was denied a judicial review of this considerable increase in the assessment on an exception of no right of action based on its failure to file a sworn list. Churchill Farms, Inc. v. Louisiana Tax Commission, 249 So.2d 594 (La.App. 4th Cir. 1971) (cert. den. 259 La. 321, 249 So.2d 923).

The majority decision in the first Churchill case rested on Dixon v. Flournoy, 247 La. 1067, 176 So.2d 138 (1965), a class action seeking via 47:1998 to have the statewide practice of unequal assessments declared unconstitutional and to have taxes they paid under protest refunded as permitted by 47:2110. This suit was dismissed on an exception of no right of action because none of the plaintiffs had filed the list required under 47:1956. Nor did the Dixon court entertain the claim for refund, apparently concluding that a 47:2110 contest was limited to questioning the constitutionality of the tax itself and not an unconstitutional administration of the assessment law.

The distinction is elusive, for 47:2110 created a right of action to question “the legality of any tax accrued or accruing or the method of enforcement thereof.” (Emphasis added.) Use of the disjunctive “or” rather than the conjunctive “and” indicates a right not only to test the constitutionality of the law but also to question whether the method of administering a valid law meets constitutional standards. If a taxpayer proves his tax burden is onerous due either to an invalid law or unequal enforcement of a valid levy, the net result is the same and the complaint rises to constitutional magnitude in that there is a deprivation of property without due process of law.

In the light of this discussion we now consider the propriety of dismissing plaintiffs suit on an exception of no right of action.

Plaintiff’s first suit became final upon the refusal of writs by the Supreme Court on June 21, 1971. Its petition now before us alleges it paid 1969 taxes of $34,036.39 under protest on September 17, 1971. This suit for a refund brought under 47:2110 was filed October 5, 1971. While the first suit was pending, the statute upon which this action is based was amended only to revise the last paragraph.

Prior to 1970, the fourth paragraph of 47:2110 provided:

“The right of action provided in this Section shall be in addition to any rights elsewhere provided in this Sub-title affording taxpayers an opportunity to test the correctness of their assessments before the courts of the state, except in so far as such rights elsewhere provided may be in conflict with this Section.” It was amended thus:
“D. The right of action provided in this section shall be in addition to any rights elsewhere provided in this Sub-title, including R.S. 47:1998, affording taxpayers an opportunity to test the legality or correctness of their assessments or ad valorem taxes paid under protest before the courts of state.”

The revision plainly states an action under 47:2110 is a separate right, in no way dependent on 47:1998. Thus the condition precedent to bringing a suit to challenge the legality of an assessment, i. e. filing a sworn list, is not carried over by implication as a prerequisite to a 47:2110 taxpayer suit for refund. Appellee contends this case is governed by the pre-amendment limitation that the right of action exists “except in so far as such rights elsewhere provided may be in conflict with this Section.”

We disagree. The 1970 amendment became law on July 29, 1970, more than a year before plaintiff paid the taxes under protest. The right of action accrued after the protest payment was made. That the tax liability arose prior to the adoption of the amendment does not place plaintiff under the pre-amendment statute.

Apparently the litigants here do not dispute the proposition that laws are presumed to be prospective in effect unless their language provides for retroactive operation. Louisiana Insurance Guaranty Ass’n v. Guglielmo, 276 So.2d 720 (La.App. 1st Cir. 1973). But appellees interpret this to mean laws may only operate on facts that occur subsequent to their passage. This same argument was rejected by the Supreme Court in State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943). The issue there was whether a tax prescription statute adopted by a 1938 constitutional amendment to LSA-Const.1921, Art. 19, § 19 could be urged to defeat a claim for taxes that became due prior to its passage. In permitting the the plea to defeat a claim for corporation franchise taxes for the years 1933 through 1937, the court, quoting Cox v. Hart, 260 U.S. 427, 43 S.Ct. 154, 67 L.Ed. 332 (1922), held:

“ ‘A statute is not made retroactive merely because it draws upon antecedent facts for its operation.’ ” 12 So.2d at 206.

We conclude the amended law controls, that a sworn list is not a condition precedent to filing suit under 47:2110, as amended, and that the Dixon court’s observation in footnote 9 was legislatively disapproved. If we adopt appellees’ reasoning that a suit to test the constitutionality of an assessment practice is limited to a 47:1998 action while a 47:2110 permits an attack only on the tax law itself, we would give an unconstitutional interpretation to a valid statute.

Imposition of a tax involves a property right. The power to tax is only legally exerted if at some stage the taxpayer is afforded an opportunity to appear and be heard. Central of Georgia R. Co. v. Wright, 207 U.S. 127, 28 S.Ct. 47, 52 L.Ed. 134 (1907). Where there is to be a taking of property, there must be provided a hearing and an opportunity for judicial determination. Mitchell v. W. T. Grant Company, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).

The constitutional problem created by ap-pellees proffered interpretation of 47:2110 is that it effectively denies any taxpayer a hearing. In the first Churchill case, the majority of this court did not consider this constitutional issue because it was not raised.

Requiring the filing of a property list as a condition precedent to testing the legality of an assessment or the maintaining of an action to recover taxes paid under protest raises constitutional problems. No taxpayer should be put in the position of -submitting and being taxed on a 100-percent valuation of his property when the prevalent practice is to pay tax on a significantly smaller value base set by the local assessor. Nor should he be denied a hearing on the excuse he failed to comply with a law that is universally ignored. This effectively deprives him of his day in court. Thus if we limit 47:2110 to a situation attacking the law itself rather than interpreting it to include an attack on unconstitutional methods of enforcement (assessment), we sanction an unconstitutional taking of property without due process because we would in effect say the taxpayer’s only remedy is that specified by 47:1998.

Therefore, we conclude the language of 47:2110 gave a taxpayer the right to question not only the validity of the law itself but also the constitutionality of the administration of a valid tax law. The plaintiff’s petition does state a cause óf action.

As to the exception of res judicata, we are of the opinion that it is without merit and must be overruled. The amending language of the statute itself, which specifically declares that a 47:2110 action is in addition to a 47:1998 action, clearly confirms that the right of action in the second Churchill suit is different from the one alleged in the first. Furthermore, the maintaining of the exception of no right of action in the first proceeding was not dis-positive of the validity of the assessment made against plaintiff’s property but merely determined that the taxpayer could not be heard to complain under 47:1998 because of its failure to file the required property list. In its second suit, plaintiff is now seeking to have the validity of its assessment adjudicated under 47:2110 which the legislature had denominated as an additional right of action besides the one afforded by 47:1998.

For the reasons assigned the judgment appealed from is reversed and the exceptions of no right of action and res judicata are overruled. This matter is remanded for further proceedings consistent with the views herein expressed. Assessment of costs is to await the final disposition of this case.

REVERSED AND REMANDED.

      . See footnote 9, Dixon v. Flournoy, 247 La. 1067, 176 So.2d 138, 142:
      “Plaintiffs’ contention that they may bring this suit under R.S. 47:2110 without regard to R.S. 47:1998 would obtain if they were contesting the constitutionality of the tax alone without regard to the assessment, and the conditions required by the second paragraph of R.S. 47:1998 would not apply. See Tremont Lumber Co. v. Bond, 166 La. 125, 116 So. 723; see also Tremont Lumber Co. v. Police Jury of Winn Parish, 164 La. 257, 113 So. 839.”

      . The 20th day after the legislature adjourned. (LSA-Const. 1921, Art. 3, § 27).


author: SCHOTT, Judge.

text:
    Frank FREEMAN v. ELBILCO, INC.
    No. 7606.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Robert E. McDonald, Metairie, for plaintiff-appellant.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Robert E. Barkley, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

The trial court maintained an exception of no cause of action and allowed plaintiff fifteen days in which to amend his petition. When he failed to amend his suit was dismissed on a contradictory motion filed by defendant. Plaintiff has appealed.

The petition alleges as follows: Plaintiff was employed by defendant as a maintenance repairman and he was injured in the course of his employment three months after he was employed. Some compensation benefits were paid. As a result of the injuries he still suffers pain and is permanently disabled. Immediately after the accident he was dismissed as an employee in violation of his oral contract of employment with defendant. The dismissal was arbitrary, capricious and without cause.

The petition then contains the following:

“14.
Under the terms of the oral contract between your plaintiff and the defendant herein, your plaintiff was to be employed as a maintenance-installation and/or repairman by the defendant, ELBILCO, INC. engaged to do certain maintenance and/or repair work on real property owned, managed and/or operated by the defendant, ELBILCO, INC. in the Avon-dale, Louisiana area at a wage of $3.50 per hour.
“15.
In addition to the hourly wage paid unto the plaintiff by the defendant, the plaintiff was furnished by the defendant a truck for his use, including one full tank of gasoline per week, together with certain other employment benefits, such as paid vacation and the like, all of which will be more fully shown at the trial of the merits of this matter.
“16.
The plaintiff avers that the defendant had no right to discharge him at this time and to terminate the benefits due him under his contract of employment with the defendant.”

Plaintiff then prays for full wages from the date of the accident to the present, the loss of the use of the truck, loss of vacation pay and insurance benefits and damages for mental anguish and suffering.

Plaintiff cites no law and we know of none which prohibited defendant from dismissing him under the circumstances alleged. Defendant discharged its obligation to provide Workmen’s Compensation benefits to plaintiff. It is conceivable that an employer could, by an employment contract, agree to pay an employee his full wages in the event the employee was injured on the job for as long as he remains disabled from such injury, but plaintiff has not alleged this to be the terms of the employment contract and has therefore failed to state a cause of action for such relief.

Despite the fact that plaintiff was given sufficient opportunity to amend to show otherwise, there is no allegation that the employment was for a definite (or determinable) term. Under these circumstances the employment can be terminated at the will of either party. Senac v. Berry, 299 So.2d 433 (La.App. 4th Cir. 1974).

Accordingly, the judgment appealed from is affirmed at plaintiffs cost.

AFFIRMED.


text:
    Franklin PAUL v. Cecelia ADAMS.
    No. 7609.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Gordon R. Cain, New Orleans, for plaintiff-appellee.
    Charles H. White, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge.

The defendant appeals from a judgment evicting her from certain business premises in the City of New Orleans.

Possession of the premises is the sole issue presented in this court. Both litigants have informed us the leased premises were totally destroyed by fire during the penden-cy of this appeal.

Appellant was occupying the premises under a written lease for a term beginning June 1,1975 and ending May 31,1977. The lease contained a provision to the effect that the lease terminated if the premises were destroyed beyond repair by fire or other casualty. Thus, if the lease is viable and defendant had a right of occupancy thereunder, she no longer has such right because the lease has come to an end.

There is some question concerning the viability of the lease because of the fact that the plaintiff appears to be a new owner who purchased the property prior to the registration of the lease. However, this does not change the fact that whatever right of occupancy the defendant may have had was lost by the admitted total destruction of the premises. When there is no lease agreement to the contrary Civil Code Article 2728 and Civil Code Article 2697, the latter here in pertinent part, are applicable. They provide:

“It [the lease] is also dissolved by the loss of the thing leased.” LSA-C.C. Art. 2728. “If, during the lease, the thing be totally destroyed by an unforseen [unforeseen] event, or it be taken for a purpose of public utility, the lease is at an end.” LSA-C.C. Art. 2697.

Thus, as appellant no longer has any right of occupancy and therefore cannot now be placed in possession, any change in the trial court judgment would serve no purpose nor have any practical legal effect. Accordingly, the appeal must be dismissed as moot. While some claim for damages may survive termination of the lease in suit, no such claim is presented to us by this appeal.

For the reasons assigned, the appeal in this matter is dismissed; all costs in this court are to be paid by the appellant.

APPEAL DISMISSED.

      . Elliott v. Di Mari Corporation, No. 7586 of our docket, handed down this day; Herman v. Style Line Greetings, Inc., 325 So.2d 371. See also People’s Bank v. Levy, 151 La. 583, 92 So. 124; Lemann v. Kogos, La.App., 273 So.2d 63; Barcom, Inc. v. Doll, La.App., 119 So.2d 544; Welsh v. Richardson, La.App., 94 So.2d 457.