author: PICKETT, Judge:

text:
    Rose Fernandez JACKSON, Plaintiff-Appellee, v. Alwin JACKSON, Defendant-Appellant.
    No. 10503.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.

      Morris A. Lottinger, Jr., and L. Milton Cancienne, Jr., Houma, for defendant-appellant.
    Charles Hanemann, Houma, for plaintiff-appellee.
    Before SARTAIN, BAILES and PICKETT, JJ.
   PICKETT, Judge:

This is an appeal from a judgment on a rule to fix alimony and child support. In separation and divorce proceedings instituted by her on March 2, 1967, and August 5, 1968, respectively, plaintiff-appellee did not pray that alimony, either pendente lite or permanent, or child support payments be fixed; rather, she “reserved her rights” to these claims, and the judgments so provided. In both proceedings, the defendant was an absentee and represented by an appointed attorney. Mrs. Jackson remarried on November 23, 1968.

On December 19, 1974, plaintiff-appellee filed the instant rule, putting alimony and child support specifically at issue for the first time. She prayed for alimony from November 21, 1966, the date on which the grounds for separation (abandonment) occurred, until the date of her remarriage. She prayed for child support from November 21, 1966, until present.

The trial court granted the awards from the date of the filing of the petition for separation, apparently ruling that the instant rule related back to the date of the petition for separation, March 2, 1967.

We cannot agree. In our opinion, the decision in Stansbury v. Stansbury, 258 So.2d 170 (La.App. 1st Cir., 1972) is controlling as to the date of judicial demand for alimony:

“[10-14] As regards the date from which alimony is due, we note that alimony is merely the judicial sanction and enforcement, under abnormal circumstances, through the judiciary, of the husband’s obligation to support his wife and minor children. Coney v. Coney, 215 La. 667, 41 So.2d 497. The date from which alimony pendente lite is due is the date of judicial demand, Coney v. Coney, above. In this instance, the date of judicial demand is not the date of Ap-pellee’s institution of this action for judicial separation, as contended by Appellant. The initial petition herein makes no mention of alimony. The date of judicial demand is the day on which a party files his demand or claim for relief. LSA-C.C.P. art. 421; Churchman v. Ingram, La.App., 56 So.2d 297. Appellant filed her rule for alimony herein on June 18, 1971; it follows that said date is the date of judicial demand from which Ap-pellee’s alimony payments must commence. We hold that the discretion invested in the trial court to fix the amount of alimony pendente lite does not extend to the date of commencement of such payments which must begin on the date of judicial demand therefor.”

Accordingly, the judgment of the trial court is hereby reversed in its award of alimony to plaintiff, since her judicial demand was after remarriage. The judgment is hereby amended to fix the date of the commencement of child support as of December 19, 1974. All costs are assessed against defendant-appellant.

Reversed in part, amended in part and rendered.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Bruce MEADOR and Gretchen Meador v. TOYOTA OF JEFFERSON, INC., et al.
    No. 6915.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.
    Rehearings Denied Nov. 11, 1975.
    Writ Granted Jan. 7, 1976.
    Marvin C. Grodsky, New Orleans, for plainti f f s-appellees.
    Fernand F. Willoz, III, New Orleans, for defendant-appellant, Toyota of Jefferson, Inc.
    Before SAMUEL, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

This is an appeal from a judgment in favor of an automobile owner against an automobile dealer for damages which included aggravation, distress and inconvenience caused by the loss of use of the vehicle, payment of monthly installments on a note for a period of seven months, together with monthly automobile insurance payments for the same amount of time while the automobile was being repaired, all of which totalled the sum of $1,554.77.

Plaintiffs’ automobile was damaged as the result of a collision and thereafter was delivered to the defendant automobile dealer, Toyota of Jefferson, Inc., for the purpose of having repairs made to the vehicle. The basis of plaintiffs’ claim for damages is that the repairs to the vehicle were faulty, and that plaintiffs suffered a loss of use of the vehicle caused by the unnecessary and excessive delay of Toyota of Jefferson, Inc., in completing the repairs. The suit was initially directed against plaintiffs’ collision insurer, Toyota of Jefferson, Inc., the dealer, and the regional and national distributors of Toyota automobiles. All defendants in this suit were dismissed with the exception of Toyota .of Jefferson, Inc., appellant herein.

It is Toyota’s position, on appeal, that the trial judge erroneously allowed damages for the period of time that plaintiffs were deprived of the use of the automobile because plaintiffs had not suffered any pecuniary loss since they did not rent a substitute vehicle. Defendant disputes also that reimbursement for note payments, insurance premiums and aggravation and distress were proper items of damages. Alternatively, defendant claims that the trial judge erred in allowing recovery based on a period of seven months that the automobile was in defendant’s possession. It is defendant’s position that plaintiffs did not authorize the repair of the automobile until after the vehicle had been at defendant’s repair shop for “several weeks”, and that it was understood by plaintiffs that two months would be required to effect repairs on the vehicle. According to defendant, the accident occurred on February 9, 1972, and the automobile was in its possession from the latter part or end of February, 1972, through September 20, 1972. When the two month period agreed upon to complete the job is subtracted from the total time that the‘automobile was in possession of defendant, the maximum loss of use for which defendant can be held responsible is a period of five months and not seven months as determined by the trial judge.

In seeking to have the judgment affirmed, plaintiffs contend that they are entitled to recover damages for loss of use of either a commercial or a pleasure vehicle, which losses may be measured by the cost of hiring or renting another vehicle while repairs are being made. Plaintiffs also claim they are entitled to recovery for damages to the interior of the vehicle which occurred when the automobile was allowed to be exposed to the elements while the vehicle was in the defendant’s shop. Those claimed damages include stains in the interior, holes in the seats and discoloration of the upholstery. Plaintiffs point out in brief that the vehicle was a comparatively new one which had been purchased approximately five months prior to the accident.

The trial judge made the following awards to plaintiffs:

“(1) Payment of notes for seven mdnths at $86.11 per month ($602.77)
“(2) Seven months insurance at $36.00 per month ($252.00)
“(3) For aggravation, distress and inconvenience ($700.00)”

Our evaluation of the evidence leads us to a conclusion that the trial judge was correct in finding that Toyota breached the contract but erred when he based the awards in favor of plaintiffs on possession by defendant for a seven month period of time. The record supports the trial court’s conclusion that defendant Toyota retained possession of plaintiffs’ vehicle for an inordinate and unreasonable length of time to make the repairs resulting in a breach of contract for which plaintiffs are entitled to be compensated. However, the record is clear that under ordinary circumstances, approximately a two month period would have been required to properly repair the automobile, assuming that parts were available. Gretchen Mea-dor stated that she was told initially that the repairs would take about two months. James Price, a metal man, estimator and supervisor of defendant’s repair shop estimated one and a half months would be required to complete the job, depending on availability of parts. When we deduct the two month period of time for repairs under ordinary circumstances, we necessarily conclude that the unreasonable amount of time which Toyota retained possession for which they may be answerable in damages totals five months.

We are next confronted with the question of damages. Damages for breach of contract are provided in LSA-R.C.C. art. 1934, which, in pertinent part, reads as follows :

“Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications:
* * *
¡¡2 * *
“3. Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.”

Included in the award by the trial judge as hereinbefore pointed out are damages for loss or deprivation of use of the automobile as represented by the reimbursement to plaintiffs for monthly note payments as well as prorated insurance premiums and for aggravation, distress and inconvenience. In the recent case of Chriss v. Manchester Insurance & Indemnity Co., 308 So.2d 803 (La.App., 4th Cir. 1975), we concluded that a plaintiff in a tort suit was entitled to damages for loss of use of his property, though he did not obtain the rental of substitute property, where the damaged party offers proper evidence of the cost of comparable substituted property. In Chriss no actual pecuniary loss was incurred by the rental of substituted property.

As pointed out hereinabove, however, the measure of damages in a breach of contract case is determined as set forth in LSA-R.C.C. art. 1934. As we read sub-paragraph 3 of that codal provision, damages may be assessed for pecuniary loss or the privation of pecuniary gain. Distinguishable from tort, in contract, absent testimony of a pecuniary loss or privation of a pecuniary gain, plaintiff is not entitled to recover for damages for loss of use. See DiGiovanni v. April, 261 So.2d 360 (La.App., 1st Cir. 1972); Aiken v. Moran Motor Company, 165 So.2d 662 (La.App., 1st Cir. 1964).

In the instant case, plaintiffs testified that they did not obtain the rental of a substitute automobile. In this regard, plaintiffs suffered no pecuniary loss. In fact, no testimony was offered by plaintiffs that they suffered any actual pecuniary loss or were deprived of any actual pecuniary gain as a result of the breach except the cost of the monthly note payments and prorated insurance premiums for a five month period. Under the circumstances, plaintiffs are entitled to recover for reimbursement of the note payments and the insurance premiums during the time plaintiffs were deprived of the vehicle’s use. Accordingly, we agree with the trial judge to the extent that plaintiffs’ recovery of the note payments and insurance premiums are proper items of damages, but only for a five month period.

Directing our attention now to the $700.00 award for “aggravation, distress and inconvenience”, we conclude that the trial judge erred in making this award. In breach of contract cases, award for humiliation, inconvenience, anxiety, aggravation, distress, mental anguish, etc., cannot be awarded unless the contract has, for its object, the gratification of some intellectual enjoyment. See Tauzin v. Sam Broussard Plymouth, Inc., 283 So.2d 266 (La.App., 3d Cir. 1973); Moreau v. Marler Ford Company, Inc., 282 So.2d 852 (La.App., 3d Cir. 1973). The contract, in the instant case, does not fall within the exception allowing for damages for inconvenience, aggravation and distress.

The final claim for damages sought by plaintiffs, i. e., damage to the interior of the vehicle, which plaintiffs claim was caused when defendant allowed the automobile to be exposed to the elements while in its (defendant’s) possession, was rejected by the trial judge. In support of this claim, plaintiffs offered their testimony together with unclear photographs of the interior of the vehicle. On the other hand, the manager of the defendant company denied that the interior was damaged as claimed by plaintiffs. The conclusion reached by the trial judge in rejecting plaintiffs’ claim for this item of damages is a credibility determination supported by testimony in the record. The trial judge simply chose to accept the testimony of the manager of the defendant company and to reject plaintiffs’ testimony. We cannot say the trial judge erred.

Accordingly, consistent with the above, that part of the judgment awarding plaintiffs the sum of $700.00 for aggravation, distress and inconvenience is reversed and set aside. That part of the judgment awarding $602.77 for payment of notes for a period of seven months is amended and reduced to the sum of $430.55, computed at $86.11 per month for a period of five months. The award in the sum of $252.00 for monthly insurance premiums for a period of seven months is amended and reduced to the sum of $180.00, computed at $36.00 per month for a period of five months. As amended, the judgment is affirmed and. is recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiffs, Bruce Meador and Gretchen Meador, and against defendant, Toyota of Jefferson, Inc., in the sum of $610.55, together with legal interest thereon from date of judicial demand and for all costs.

Amended and affirmed.


author: REDMANN, Judge. LEMMON, Judge

text:
    Eddie THIBODEAUX et al. v. The LOCK CLINIC et al. AMERICAN SOUTHERN INSURANCE COMPANY and Leon K. Kancher v. Harvel HENDRICKS, d/b/a the Lock Clinic, et al.
    Nos. 6400, 6401.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 17, 1974.

      See also La.App., 299 So.2d 574, La. App., 303 So.2d 570, La.App., 303 So.2d 575.
    Henry L. Klein, Windhorst, Heisler, DeLaup & Wysocki, New Orleans, for Eddie Thibodeaux and Alexie Para.
    Perrin C. Butler, New Orleans, for Adam Para and Allstate Ins. Co.
    Ben C. Toledano, Porteous, Toledano, Hainkel & Johnson, New Orleans, for the Lock Clinic, James G. Watzon, and State Farm Mut. Auto. Ins. Co.
    Before REDMANN, LEMMON and GULOTTA, JJ.
   REDMANN, Judge.

Appellees move dismissal for untimeliness of defendants’ January 29, 1974 appeal as suspensive in respect to a December 5, 1973 money judgment in plaintiffs’ favor, after which appellants did not move for a new trial (though plaintiffs did, resulting in a judgment of January 14, 1974, specifying interest and cost liability and expressly dismissing third-party demands).

The suspensive appeal period is 15 days, C.C.P. art. 2123. Motion for a new trial by one party ordinarily does not extend another’s delay for appealing, unless the nature of the proceeding is such that one party’s motion prevents the judgment from becoming final as to another; Thurman v. Star Elec. Supply, Inc., La. 1973, 283 So.2d 212.

In the present case the motions for new trial relative to interest and costs prevented the December 5 judgment against appellants from becoming final. A contrary view would require appellants to appeal from both the December 5 and the January 14 judgments. Appellants could not even have paid off the December 5 judgment because of the indefiniteness of interest and costs liability.

On authority of Thurman, supra, the motions to dismiss are denied.

Motions denied.

LEMMON, J., dissents with written reasons.

LEMMON, Judge

(dissenting in No. 6401).

In the present case defendants were cast in judgment on Wednesday, December 5, 1973; did not apply for a new trial by Monday, December 10, 1973; and did not appeal suspensively by Wednesday, December 26, 1973. On December 27, plaintiff (who had timely applied for a new trial) could have dismissed his application and executed on the judgment, in my opinion. I cannot see how plaintiff’s application for new trial could have preserved any suspen-sive appeal rights for defendants.

The Thurman case reaffirmed that “the plan of the Code of Civil Procedure * * * (is) to provide for the finality of judgments in multiparty suits in which some, but not all parties, file applications for new trials.”

In resolving the “conflict between the conventional abhorrence to ‘piecemeal appeals’ and a liberal rule promoting the efficient disposition of litigated issues as soon as possible, without unnecessary delay while unrelated aspects of the litigation are determined,” the courts must interpret the rules relative to the procedure for appealing so as to provide litigants and attorneys with a consistent procedure by which a party’s appeal rights are ascertainable at every stage of the proceedings. Some of this court’s most difficult determinations involve the question of “who and what is before the court on appeal.” As to the particular problem in this case, i. e., when do delays for appeal begin if some (but not all) parties apply for a new trial, I submit the following:

(1) Any party who wishes to reverse or modify the judgment must apply for a new trial (or appeal) in order to prevent the judgment from becoming definitive and nonappealable as to that party.
(2) If any party applies for a new trial and the application is denied, appellate delays are calculated:
(a) as to the party or parties who applied for a new trial, in relation to date of judgment denying a new trial (or notice thereof); or
(b) as to any party who did not apply for new trial, in relation to date of original judgment (or notice thereof).
(3) If any party applies for a new trial and a new trial is granted, the original judgment can be altered or modified only as to those portions of the judgment which are adverse to the party who applied for the new trial.
(4) When judgment is rendered following a new trial, any party (other than the party who applied for a new trial may appeal from the judgment on new trial:
(a) as to portions of the original judgment modified or altered by the judgment on new trial, only within appellate delays beginning in relation to the date of judgment (or notice of judgment) on new trial; or
(b) as to portions of the original judgment not modified or altered by the judgment on new trial, only within appellate delays beginning in relation to the date of original judgment (or notice thereof).

While the above outline may appear complex at first glance, the basis is simple: Each party knows when he is aggrieved by a judgment and should be charged with the responsibility to seek relief timely. Therefore, each party must act himself to protect his appellate delays as to any judgment (or portion thereof) adverse to him, and he cannot depend upon action by other parties to avail him of additional delays. The complications occur when a motion for new trial is granted, as in Thurman, but these complications can be controlled by the trial judge with a proper order under the authority of C.C.P. art. 1971.

Here, defendants knew that they were cast in judgment for tort damages. Plaintiff’s application for new trial was only concerned with specifying interest and costs and could only result in an amended judgment favorable to plaintiff. Defendants nevertheless let their delay for applying for a suspensive appeal elapse, and the suspensive appeal from the original judgment should now be dismissed. Their appeal should be limited to a devolutive appeal, except as to any portion of the original judgment altered by the amended judgment.

      . C.O.P. art. 2133 provides for the special case when a party might desire to appeal only if some other party appeals first.

      . Other parties applied for a new trial, asking express dismissal of certain demands and third party demands.

      . Defendants moved to appeal from the January 14, 1974 judgment, rather than that of December 5, 1973.
      There was no new trial granted. On motion for new trial, the trial court simply amended the original judgment to grant the relief requested.


text:
    Roland DE ROCHE v. H. B. FOWLER & CO., INC., et al.
    No. 7224.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Jerald N. Andry and Gilbert V. Andry, III, Edwin R. Pillault, Jr., New Orleans, for plaintiff-appellant.
    Hammett, Leake, Hammett, Hayne & Hulse, Dominic J. Gianna, New Orleans, for defendants-appellees.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

Roland De Roche appeals from a workmen’s compensation award under the scheduled loss provisions of the act based on a 10% permanent partial disability of the leg. De Roche claims he is totally and permanently disabled. We affirm.

While employed as an ironworker on November 26, 1973, plaintiff injured his right knee causing a Baker’s cyst to form in the popliteal area of the knee.* The primary thrust of plaintiff’s argument is that the injury has caused an instability of the knee which has impaired his ability to climb and to do heavy lifting (required of an ironworker), thereby endangering himself and his coworkers. Plaintiff secondly complains that straightening his knee causes substantial pain which prevents him from carrying out the duties of his pre-in-jury employment.

It is plaintiff’s position that the trial judge erred when he found a 10% disability of the knee and applied the scheduled loss provisions relating to partial permanent disability. According to plaintiff, irrespective of the percentage disability of the knee, he cannot substantially perform the duties of his former occupation as an ironworker and therefore is totally and permanently disabled.

The record does not support plaintiff’s contention. Following the accident of November 26, 1973, plaintiff continued to work. However, three days later, while on the job, plaintiff’s knee “popped” resulting in substantial pain.

Examination by Dr. Howard Nelson, a general surgeon, on November 29, 1973, revealed fluid in the posterior portion of the knee which he determined to be a Baker’s cyst. The doctor found no fracture and no abnormality of the bone. Based on the November 29 examination, the doctor anticipated a one week disability. He subsequently examined plaintiff on December 3, 1973, and discovered no evidence of a cyst.

Dr. Arthur Kleinschmidt, an orthopedic surgeon, examined plaintiff on five occasions between December 18, 1973 and November 13, 1974. It was Dr. Kleinsch-midt’s opinion that plaintiff sustained a contusion to the right knee and suffered no permanent or partial disability. Based on the possibility of a recurrence of a Baker’s cyst, he would anticipate a 5% or 10% disability which would not prevent plaintiff’s return to work as an ironworker.

Because of recurrence of pain in the knee, De Roche returned to Dr. Kleinsch-midt’s office on August 29, 1974, and saw Dr. Winters, an associate. On this occasion, fluid was aspirated from the knee.

De Roche indicated, on his final visit to Dr. Kleinschmidt’s office on November 13, 1974, that he was working at his regular job and having occasional difficulty with his knee. He added, however, that the difficulty did not prevent him from working.

Examination by Dr. Stuart Phillips on November 19, 1974 and January 24, 1975, revealed a Baker’s cyst. Although Dr. Phillips had not seen the knee when it was acute, he assessed a 10% to 20% disability of the right leg.

So much for the medical testimony.

Consideration of the lay testimony does not support plaintiff’s claim for total disability. Leroy Mayer, an ironworker foreman and coworker, testified that he worked with plaintiff for approximately three months after the accident. According to Mayer, although De Roche complained of pain, he continued to perform his duties as an ironworker.

After the accident, plaintiff performed the duties of a working and nonworking foreman. De Roche continued to perform his supervisory, and his regular, duties which included climbing. Plaintiff admitted that his knee had not hindered his performance as an ironworker. However, he stated that he had not been engaged in all phases of an iron worker’s duties since the accident. De Roche indicated that the knee did not bother him at the date of trial. Nor did it cause any problem when he bowled.

Plaintiff’s reliance on Taranto v. Kaiser Aluminum & Chemical Corp., 280 So.2d 403 (La.App., 4th Cir. 1973) is without merit. Unlike Taranto, the evidence in our case does not indicate that plaintiff was incapable of performing the substantial duties of his occupation. In addition, the injuries in Taranto, consisting of burns on both legs, were more severe, requiring skin grafts.

Accordingly, we conclude the record supports the 10% disability award. The judgment is affirmed.

Affirmed.

      . LSA-R.S. 23:1221(4) (h), (o) reads as follows :
      § 1221. Temporary, permanent or partial disability ; schedule of payments
      “Compensation shall be paid under this Chapter in accordance with the following schedule of payments:

        a * * *
      “(4) In the following cases the compensation shall be as follows:
      << * sjs
      “(h) For the loss of a leg, sixty-five per centum of wages during one hundred seventy-five weeks.

      “(o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.”

      . A cyst in the back of the knee in which there is an accumulation of fluid.

      . Dr. Kleinschmidt did not find a Baker’s cyst in his examination of plaintiff.

      . In Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975), our Supreme Court rejected the rule that the court could not consider lay testimony in the absence of a conflict in the medical testimony. The court stated that it was the totality of the evidence, medical and lay, which must be examined by the court in making its determination of whether to grant an award of disability.


author: BEER, Judge.

text:
    Mr. and Mrs. Zacharias TURNER, Sr. v. SOUTHERN WHEEL AND RIM SERVICE, INC. and Security Insurance Company.
    No. 7186.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Granted Jan. 14, 1976.
    Charles R. Maloney, New Orleans, for plaintiffs-appellants.
    Bienvenu, Foster, Ryan & O’Bannon, P. Albert Bienvenu, Jr., New Orleans, for defendant-appellee.
    Before STOULIG, BOUTALL and BEER, JJ.
   BEER, Judge.

Plaintiffs-appellees, the surviving parents of the decedent Zacharias Turner, Jr., filed suit to recover workmen’s compensation benefits allegedly due their son for work connected injuries which he sustained on November 16, 1973 while employed by defendant-appellee. Before personally instituting suit for such benefits, Zacharias Turner, Jr. died as a result of a totally unrelated incident and the parents now seek benefits under the survivorship provisions of Article 2315 of the Civil Code and Article 428 of the Code of Civil Procedure. No claim for dependency nor for death benefits under the workmen’s compensation act is urged by appellants. From a judgment maintaining appellee’s exception of no right of action and lack of procedural capacity, the appellants appeal.

In Brownfield v. Southern Amusement Company, 196 La. 73, 198 So. 656 (1940) the Supreme Court determined that, generally, the right of the employee to sue for benefits under the workmen’s compensation act is “personal” to him. The court stated:

“The law is settled that the benefits provided by the Workmen’s Compensation Act are due only to the injured employee, or to certain designated dependents in case of his death from injury. The relief granted is personal to the injured employee when his injury does not result in death, and in such a case he alone has the right to enforce the payment of compensation benefits by his employer or the latter’s insurer.” (Emphasis ours.)

Plaintiffs rely heavily upon Article 428 of the Code of Civil Procedure. That Article provides:

“An action does not abate on the death of a party. The only exception to this rule is an action to enforce a right or obligation which is strictly personal.” (Emphasis ours.)

The decedent’s right under the workmen’s compensation act for weekly disability payments is clearly exclusive. The parents must be excluded from such a claim since that right of action is, obviously by its nature, “strictly personal.” The failure of their son to have instituted suit for allegedly due weekly disability benefits prior to his unrelated death must preclude any action seeking payment of weekly disability benefits on the part of his surviving parents.

But what of the medical bills allegedly incurred “personally” by decedent as a direct result of his injury? They are now represented by a liquidated figure and remain, as able counsel for appellants indicate, an outstanding indebtedness of decedent’s personal estate. Thus, the right to seek payment (or reimbursement) should, perhaps, be available to the executor or administrator of Zacharias Turner, Jr.’s estate.

A finding of disability requiring payment of weekly benefits is not necessarily a prerequisite to incurring the obligation to pay medical expenses occasioned by an employee who has been injured in the course and scope of his employment. That obligation exists on the part of the employer as of the moment the treatment is rendered if, indeed, the injuries requiring the treatment were actually incurred as a result of an industrial accident occasioned in the course and scope of the injured worker’s employment.

This legal obligation coupled with the fact of payment of the outstanding medical bill by the executor or administrator could, we believe, give the estate a basis for seeking repayment from the compensation insurer. It depends, we think, on the extent to which the prohibition described in R.S. 23:1032 concerning “personal representative” attaches to an executor or administrator and, also, on the interpretation of the term “benefits” as including properly incurred and completely identifiable liquidated medical expenses.

The present status of the parties to this litigation, as well as the facts presently alleged, effectively preclude our full deliberation of this issue. But, the issue may eventually have to be dealt with if and when an executor or administrator of decedent’s estate actually pays the outstanding medical bills which are alleged to cover treatment accorded decedent as a direct and provable result of a course and scope industrial accident. On the present record, however, the judgment of the district court must be affirmed at appellants’ cost.

Affirmed.

       Also, see Holmes v. Holmes, 270 So.2d 578 (La.App.3rd Cir. 1972).


author: SCHOTT, Judge.

text:
    CATALINA POOLS by Bill Harper, Inc. v. G. S. SELLERS.
    No. 7136.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearings Denied Dec. 9, 1975.

      Lankford, Schneider & Lankford, New Orleans (John G. Lankford, New Orleans), for plaintiff and defendant in Reconvention-Appellee.
    Carol B. Hart, New Orleans, for defendant and plaintiff in Reconvention-Appel-lant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

In response to plaintiff’s suit for $384.34 for swimming pool supplies and services sold and furnished to defendant, he denied liability and reconvened for $2,411.50 for alleged damages. From a judgment dismissing both the main and the reconven-tional demands both parties have appealed.

Catalina had installed a swimming pool at Sellers’ home in February, 1970, for $7,-954.00. In March, 1974, Sellers discovered that the pool was leaking and on March 13 contacted Catalina to remedy the situation. At the suggestion of Catalina’s president and manager, Bill Harper, a procedure was begun whereby Mr. and Mrs. Sellers would mark the water line on the pool and report the extent of the leak which proved to be a few inches a day. Catalina in turn looked for visible leaks and performed certain tests to determine the cause of the problem. At the conclusion of this procedure Catalina diagnosed the difficulty as “hollow spots under the plaster” or areas where the plaster finish on the walls of the pool had not adhered to the gunite out of which the walls were constructed. At the conclusion of this testing procedure Catalina presented Sellers with its bill for $384.34 consisting of checking for leak on March 18 and 23, testing lines on April 4, draining and washing pool, walls and floor, and patching two hollow spots on April 18, and checking for leaks on May 16. Catalina also then presented Sellers with a proposal to repair all hollow spots with related work for the sum of $1,745.50. Harper testified that the hollow spots are a natural occurrence and are not the result of faulty construction of the pool in the first instance. However, on cross examination, he said that this was the only pool he knew about which had hollow spots out of all those he had constructed in 20 years.

According to the Sellers, after Catalina’s procedure had been completed the pool was left with stains and about 12 holes where the plaster had been removed in the process of Catalina checking on the hollow spots. Sellers testified that when Harper made his proposal he stated that there would be no guarantee against leaks, but he felt that the hollow spots had to be the cause of the leaking. After getting Catalina’s proposal Sellers employed another company, Warren English Pool Service, to check for the leaks,

Everett Gray of the latter company testified that he inspected the pool and concluded that the leakage of water from the pool, as well as seepage of outside ground water into the pool was occurring at the main drain in the pool. This, he said, was based upon cracks in the gunite which he found around the hydrostatic valve in the main drain, some of which were as wide as half an inch. In his opinion the cracks developed because the gunite mixture had not been properly mixed or poured or smoothed out when the drain was first installed. As to hollow spots, Gray said that where a pool is properly constructed they should not develop but in no event could leaks be caused by hollow spots unless they are around the main drain. Warren English Pool Service repaired the main drain and the main drain pipe, washed the pool and patched the holes which had been made in the plaster by Catalina, presenting Sellers with a bill for $411.50. According to Gray and the Sellers, the pool did not leak thereafter and its appearance was restored except for some freckle like spots on the pool’s bottom and the marks where the new plaster was applied to the holes made by Catalina.

The trial judge did not give reasons for judgment, but implicit in his dismissal of Catalina’s main demand is a finding that Catalina’s investigation for the cause of the leaks and related work were not done properly. We have concluded from the evidence as summarized above that there is no error in this finding by the trial judge.

On the other hand, it becomes difficult to rationalize a dismissal of the recon-ventional demand of Sellers, once the conclusion is reached that Catalina is not entitled to recover on the main demand. If the trial judge had believed that it was necessary for Catalina to chip out the hollow spots in the Sellers’ pool because this was a cause of the leaks he should have awarded Catalina a judgment on its main demand. By dismissing that claim the trial judge implied that the chipping of the hollow spots was unnecessary. It follows that Sellers ought to recover for the cost of replaster-ing the spots. As to the removal of the stains, the evidence shows that the stains were not present before Catalina’s procedure was carried out. The record, while vague, supports an inference that the stains were caused by ground water which seeped into the pool when the water level was lowered by Catalina during the two month period it was searching for leaks without success. Under the circumstances, we have concluded that Sellers is entitled to recover at least that portion of Warren English’s bill for acid-washing the pool and patching the holes in the plaster, amounting to $170.-80 since this work was required because of defective workmanship on the part of Catalina. Whether Sellers is entitled to recover the $240.70 remaining from Warren English’s bill for the repair of the main drain is a more difficult problem.

While Catalina has taken issue on the point we find that the defects in the main drain caused the leakage and were repaired by English. But Catalina next tried to show that the cracks in the main drain were caused by the negligence of English’s employees after Catalina’s fruitless efforts were terminated. This is not supported by the evidence and constitutes speculation at best. The record shows that it is more probable than not that the defects were the result of faulty original construction so that the question becomes whether Sellers may recover for the repairs as a matter of law.

In the first place, Catalina’s argument relative to principles of redhibition is not applicable. The installation of this pool by Catalina was a construction contract and not a sale. The relationship between Catalina and Sellers is one of contractor-owner and not one of vendor-vendee so that the provisions of LSA-C.C. Art. 2762 apply. See Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268, Polit v. Babcock, 232 So.2d 916 (La.App. 4th Cir. 1970), Unverzagt v. Young Builders, Inc., 207 So.2d 405 (La.App. 3rd Cir. 1967) affirmed 252 La. 1091, 215 So.2d 823. Article 2762 makes the contractor liable if the “building” falls to ruin “on account of the badness of the workmanship.” The record supports a finding that it was bad workmanship with respect to the main drain by Catalina which caused the Sellers’ swimming pool to leak, and recovery would be indicated.

However, Catalina relies on the provision of its original contract with the Sellers, which provides as follows:

“WARRANTY
Contractor warrants its work to meet or exceed existing Building Department Codes and to be free from defects in material and workmanship for one year from completion of such work, and if any defects should occur within such time, shall remedy same without cost to the Owner(s) provided said Owner(s) has (have) complied in full with the terms of payment and other conditions of this agreement, and has (have) within the warranty period notified this contractor in writing of such defects. Purchased assemblies or material processing used in this installation are subject to the manufacturer’s or processor’s warranty. Contractor makes no warranty expressed or implied as to such equipment. Damage caused by neglect or improper maintenance is specifically excluded from this warranty.”

By its own terms, this warranty provision does not suggest that the Sellers waived their statutory warranty by accepting the contractual one year warranty, so that this argument has no merit.

Catalina contends that it is entitled to recover on its main demand because its work was done on instructions from the Sellers. We do not find that the evidence supports this conclusion. Sellers did not know what was wrong with the pool. Under the law as found in C.C. Art. 2762 he had a right to call on Catalina to remedy the defect and the method of finding that defect was wholly within Catalina’s expertise and was its responsibility. It was not acting simply as an agent for Sellers doing his bidding as it conducted its search for the leaks.

Finally, Catalina contends that it should be allowed recovery because its work was leading up to a successful repair of the pool, but Sellers prevented Catalina from completing its work. As we have already said, the trial judge apparently found that Catalina’s work was improper, that it accomplished nothing during its search, and it follows that Sellers had every right to terminate those efforts and to decline to pay Catalina.

Included in Sellers’ peconventional demand is a claim of $2,000.00 because of loss of the use of the pool from March IS to June 1, 1974, and the permanent stains and unsightly condition with which the pool was left even after the work performed by Warren English. There is insufficient evidence to support this claim, and the trial judge properly disallowed recovery.

Accordingly, the judgment appealed from is affirmed to the extent that there is judgment in favor of G. S. Sellers, dismissing the main demand of Catalina Pools by Bill Harper, Inc.

That portion of the judgment which dismissed the reconventional demand is reversed and there is judgment in favor of plaintiff in reconvention, G. S. Sellers, and against defendant in reconvention, Catalina Pools by Bill Harper, Inc. in the full and true sum of $411.50 with legal interest from date of judicial demand until paid and for all costs of these proceedings, including the cost of this appeal.

Affirmed in part, reversed in part and rendered.

      . TTgly spots on the bottom of the pool are shown in photographs which were taken before English completed its work but the record does not show the extent of this discoloration remaining after English was finished. We presume that much, if not all, of this ugliness was eliminated after English acid-washed the pool.


author: DOMENGEAUX, Judge.

text:
    Truly HORN, Plaintiff-Appellee, v. VANCOUVER PLYWOOD COMPANY et al., Defendants-Appellants.
    No. 5214.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Smitherman, Smitherman, Lunn, Hussey & Chastain by Merritt B. Chastain, Shreveport, and William E. Skye, Alexandria, for defendants-appellants.
    G. F. Thomas, Jr., Natchitoches, for plainti f f-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation suit. The plaintiff, Truly Horn, was injured while in the employ of defendant, Chester B. West, a sub-contractor of defendant Vancouver Plywood Company. West’s workmen’s compensation insurer, Parliament Insurance Company, paid plaintiff weekly compensation benefits for a period of twelve weeks and then ceased payment. Plaintiff brought this action to have the payments resumed, and the district court rendered judgment on his behalf and held all three defendants liable in solido for payment of workmen’s compensation benefits for total and permanent disability. The District Court also held Vancouver and Parliament liable for the statutory penalties of interest and attorney’s fees under R.S. 22:658. From this judgment the defendants have appealed. The plaintiff has answered the appeal requesting additional attorney’s fees to cover the services of his attorney in connection with this appeal.

The plaintiff is an individual with a long history of back injuries and related problems. In 19S4 he underwent surgery for a ruptured disc and three years later, in 1957, sought medical attention concerning his back problem from Dr. Heinz K. Faludi, a neurosurgeon in Shreveport, Louisiana. Doctor Faludi treated the plaintiff for a number of years and in 1966 plaintiff again underwent surgery for a ruptured disc, a work-related injury. After an unsuccessful attempt to repair the ruptured disc by Doctor Ray King of Shreveport, Doctor Faludi performed a third operation on the plaintiff, which was evidently successful. After a recovery period of approximately one and one-half years, the plaintiff returned to work and held various jobs for the next several years. The plaintiff was employed for a time as a taxi driver in Shreveport, Louisiana. He later engaged in more strenuous activity, particularly that of operating large diesel-powered trucks. For some time the plaintiff drove a tractor-trailer rig from coast to coast, a dump truck, and a logging truck which he was operating at the time of his accident.

On April 22, 1974, the plaintiff had been employed by defendant, Chester B. West, for approximately twenty days as a logging truck driver. This work entailed the operation of a large heavy duty truck in thickly wooded areas with poor roads. The plaintiff was required to drive this vehicle over rugged terrain and to further assist in loading and lashing his cargo. The testimony adduced at trial indicated that this type of work is considered to be quite rigorous.

On the morning of April 22, 1974, the plaintiff was attempting to descend from his vehicle under rainy conditions. He slipped and fell, striking his back and buttocks on the running board of the truck cab. This fall caused sharp pains in the plaintiff’s back, and he experienced difficulty in using his legs.

Later that day plaintiff was taken to a hospital in Many, Louisiana, by his employer and was placed in traction for four days. The attending physician, Dr. V. M. John, diagnosed the plaintiff’s injury as contusions of the back and lumbo-sacral sprain. He discharged the plaintiff on April 26, 1974.

Thereafter the plaintiff experienced considerable pain and discomfort in his back and hip areas. He was completely unable to perform the type of heavy work which he had done prior to his accident and was also unable to engage in any type of activity which required his standing or sitting for more than a few hours. In addition the plaintiff had difficulty sleeping and suffered from general overall discomfort.

Parliament Insurance Company, the insurer of defendant West, paid weekly compensation benefits to the plaintiff from the date of his accident until July 15, 1974. At that time Parliament’s adjuster found that plaintiff was working as a taxi driver in Natchitoches, Louisiana. The adjuster also received certain medical information, specifically a report stating that the plaintiff had been discharged from the Many hospital. Based upon this information, the adjuster concluded that the plaintiff was no longer disabled, and Parliament, based upon this information, terminated his compensation.

In an effort to have his compensation benefits resumed the plaintiff initiated this action. The trial judge found that the plaintiff was totally and permanently disabled as a result of the above mentioned accident, and further that the defendants Parliament and Vancouver had terminated the compensation payments without probable cause, thus incurring the 12% statutory interest penalties and liability for attorney’s fees of $2,000.00.

The trial court further recognized the execution of an indemnity agreement between the defendants in favor of Vancouver Plywood Company, wherein defendants West and Parliament Insurance Company agreed to indemnify Vancouver for any amount which the latter may be cast in judgment. Therefore the trial judge ruled that as third party plaintiff, Vancouver Plywood Company, Inc. should have and recover judgment against the third party defendants, West, and Parliament Insurance Company.

The issues raised by this appeal are:

First — Is the plaintiff’s total and permanent disability a result of the injury which he suffered while in the defendant’s employ?

Second — Were the actions of Parliament and Vancouver arbitrary, capricious, and without probable cause in terminating plaintiff’s weekly compensation?

Third — Should plaintiff be granted additional attorney’s fees to cover the cost of prosecuting this appeal ?

Fourth — Should the indemnity agreement between the defendants be recognized and given effect?

Unlike most workmen’s compensation cases there is no issue here as to the plaintiff’s degree of disability. It is conceded by all parties that he is totally and permanently disabled.

The medical evidence in this case is not altogether consistent. Plaintiff was examined initially by Dr. V. M. John at the Many, Louisiana, hospital. Doctor John’s diagnosis of plaintiff’s injury indicated contusions of the back and lumbo sacral sprain.

On May 2, 1974, shortly after the accident, plaintiff was examined by Dr. Heinz K. Faludi, a neurosurgeon, in Shreveport, Louisiana. On that date Doctor Faludi formed the opinion that the plaintiff had suffered contusions in the area of the left hip and also a lumbosacral sprain. Doctor Faludi prescribed medication and a back support and after another examination on May 30, 1974, continued the treatment with a slight alteration in the medication. Upon re-examination on July 28, 1974, Doctor Faludi found the plaintiff still complaining of stinging and burning pain in the lower back region and muscle spasms in the lumbar region. Doctor Faludi’s diagnosis at that time was that plaintiff’s accident had caused a contusion of the left hip and a lumbosacral sprain which was super-imposed upon the plaintiff’s prior injury. Doctor Faludi placed the plaintiff in the hospital in Shreveport from July 18th through July 23, 1974. At that time he performed a lumbosacral myelogram and found no ruptured disc but discovered a reverse spondylolisthesis at L-4 and L-S and spondylosis above, both congenital problems. Doctor Faludi concluded that the plaintiff’s accident had the effect of aggravating his prior condition. Doctor Faludi further examined the plaintiff on August 23, 1974, and felt that plaintiff had improved somewhat but was still prohibited from doing any type of heavy work. Doctor Faludi felt at this time, however, that the plaintiff’s condition had reverted back to its normal status prior to the accident which he determined to be one of total and permanent disability. Upon his final examination of plaintiff on December 13, 1974, Doctor Faludi concluded that the plaintiff was still disabled from doing heavy or any work requiring strenuous use of the back. Again he determined that the plaintiff’s difficulty was “a matter of the past and this was just one of his usual flare-ups. He has had flare-ups before.” (Doctor Faludi’s deposition, page 19) When asked to what flare-ups he was referring the doctor replied, “Well, numerous flare-ups prior to this, other times, the 50s and 60s.” (Doctor Faludi’s deposition, page 20).

Plaintiff was next examined by Doctor David T. Henry, a general practitioner and surgeon in Natchitoches, Louisiana, on January 17, 1975. It was Doctor Henry’s opinion that the plaintiff was “not capable of performing any work that would require prolonged standing, prolonged sitting, bending or lifting”. (Tr. 71). Doctor Henry was asked his opinion of the cause of plaintiff’s disability. He testified:

“It is my opinion that at the time of his injury in April he reinjured his old previous back area where the surgical procedures had been done, adjacent structures to that area, and that he continues to have some muscular ligamentous or bony difficulties related to reinjury of his old problem.”

Doctor Henry was asked to reiterate by plaintiff’s counsel as follows:

“Q. Doctor Henry, in the report that you rendered me, I believe you stated that in your opinion that Mr. Horn’s previous back condition was aggravated by the injury that he subjected his back to in April of 1974, and that in your opinion that this was a permanently disabling situation of his lower spine ?
A. That is my opinion, correct.”

Finally, plaintiff was examined on February 19, 1975, by Doctor T. E. Banks, an orthopedist in Alexandria, Louisiana. Doctor Banks was unable to evaluate plaintiff’s condition relative to this litigation. However, he felt that in light of plaintiff’s current condition, that he was a candidate for continued conservative therapy-

After reviewing all the medical evidence we find that plaintiff was an individual with a very suspect back condition. The several doctors in this case seem to agree that plaintiff was more susceptible to reoccurring back injury than an ordinary worker would be. However, even in light of Doctor Faludi’s testimony the fact is inescapable that the plaintiff had worked at difficult, strenuous, heavy labor for a period of some 6 to 8 years following his last surgical procedure. It is inconceivable that a man who is now admittedly totally and permanently disabled could have been in the same condition during that period of difficult physical activity. Therefore, we must conclude that plaintiff’s condition is worse now than it was prior to his injury.

The rule is well accepted in this state that an employer takes an employee as he finds him. Kennedy v. Calcasieu Paper Company, 262 So.2d 800 (La.App. 3rd Cir. 1972). Granted, plaintiff was a questionable employee for the type of work in which he was engaged at the time of his injury. However, he was hired and performed his work satisfactorily for a period of twenty days before his accident. Plaintiff’s employer had every opportunity to delve into plaintiff’s medical history but neglected to do so. Thus he employed the plaintiff in his existing condition and must bear the responsibility for plaintiff’s injury. Clearly plaintiff was a reasonably able-bodied man capable of performing heavy labor prior to his accident, and now he is totally and permanently disabled as a result of the accident while in defendant’s employ. There can be no other conclusion but that the accident of April 22, 1974, was the cause of the disability. The plaintiff has met his burden of proof that his current status of disability is the result of his work related injury. Bourque v. Monte Christo Drilling Corporation, 221 So.2d 604 (La.App. 3rd Cir. 1969); Gates v. Ashy Construction Company, 171 So.2d 742 (La. App. 3rd Cir. 1965).

Plaintiff received workmen’s compensation benefits from defendant Parliament Insurance Company from the date of his injury until July IS, 1975. At that time the defendant’s insurance adjuster discovered the fact that the plaintiff was working as a cab driver in Natchitoches, Louisiana. In fact the plaintiff admitted that he was driving a taxicab part-time but that he was having great difficulty in doing so. This fact was communicated to the adjuster shortly after the compensation benefits were cut off. Apparently the adjuster made no attempt to determine whether or not the plaintiff was able to return to the type of work in which he was engaged prior to his ac,cident. In addition the adjuster testified that he received a report from Doctor V. M. John concerning the plaintiff’s treatment at the Many Hospital. This report states that plaintiff was suffering from contusions of the back and a lumbosacral sprain and that the injury would not result in a permanent defect. At line 19 of the report the question “Is further treatment needed ?” is asked. This question is answered in the negative. However, the following two lines of the standard form report deal with the ability of the patient to resume regular or light work. The doctor made no statement as to when the plaintiff would be able to return to his job. Based upon this incomplete medical report and the fact that plaintiff was working part-time as a cab driver, albeit with great difficulty, the adjuster concluded that plaintiff was no longer entitled to benefits under the workmen’s compensation act. The trial judge found that the adjuster’s actions were arbitrary, capricious, and unreasonable within the scope of R.S. 22:658, and awarded the plaintiff attorney’s fees and interest at the rate of 12% pursuant to the statute. A determination of whether an insurer is arbitrary, capricious or unreasonable as contemplated by R.S. 22:658 is essentially a question of fact. Cryer v. Gulf Insurance Company, 276 So.2d 889 (La.App. 1st Cir. 1973). We find no manifest error in the trial judge’s ruling that the insurer’s actions constitute an arbitrary, capricious, or unreasonable behavior under this statute.

In answering this appeal the plaintiff requests additional attorney’s fees of $1,000.00 as compensation for the effort required in prosecuting this appeal. This court has consistently recognized the fact that litigants successful at the trial level, must incur additional expenses to protect their rights upon appeal. Accordingly we have granted additional attorney’s fees in the amount of $500.00 in similar cases. Benoit v. Travelers Insurance Company, 251 So.2d 87 (La.App. 3rd Cir. 1971); Thibodeaux v. Associated Distributing Company, 260 So.2d 46 (La.App. 3rd Cir. 1972); Ryder v. Insurance Company of North America, 282 So.2d 771 (La.App. 3rd Cir. 1973); Payne v. Travelers Insurance Company, 299 So.2d 913 (La.App. 3rd Cir. 1974); Delahoussaye v. Allen Action Agency, Inc., 300 So.2d 575 (La.App. 3rd Cir. 1974). We therefore increase plaintiff’s award of attorney’s fees from $2,000.00 to $2,500.00 to cover the costs of this appeal.

Finally, as to the issue of the indemnity agreement between the defendants, we find no error in the trial judge’s recognition and application of this agreement, holding that defendants Chester B. West and Parliament Insurance Company shall indemnify Vancouver Plywood Company, Inc. for all amounts which the latter has been cast in judgment in this action.

For the above and foregoing reasons, the judgment of the trial court is amended to increase the award of attorney’s fees therein from $2,000.00 to $2,500.00, and in all other respects it is affirmed with costs of the appeal being assessed to appellants.

Amended and affirmed.

      . Prior to the May 2, 1974, examination, Doctor Faludi had not see plaintiff since October, 1966.


author: REDMANN, Judge.

text:
    Jeannette Powe, widow of John C. BARNES, Individually and on behalf of her minor children, Caroline Elizabeth Barnes and John Christopher Barnes v. CITY OF NEW ORLEANS.
    No. 7171.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Refused Jan. 30, 1976.
    Orlando G. Bendana, New Orleans, for plaintiffs-appellees.
    Blake G. Arata, Thomas P. Anzelmo, Jackson P. McNeely, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   REDMANN, Judge.

The City of New Orleans appeals from a judgment awarding workmen’s compensation benefits for the death of a clerical employee who died in bed at home from a myocardial infarction. The employee’s beneficiaries answer, seeking penalties and attorney’s fee.

City employees are covered by the compensation law, La.R.S. 23:1034. Death or disability from heart attack or stroke is from “injury” from “accident” within the meaning of R.S. 23:1031, Ferguson v. HDE, Inc., La.1972, 270 So.2d 867; Leleux v. Lumbermen’s Mut. Ins. Co., La.1975, 318 So.2d 15; Luquette v. Colonial Sugars Co., La.1975, 318 So.2d 37. The question is whether the accidental injury is one “arising out of and in the course of his employment” and therefore compensable, R.S. 23:1031.

The employee experienced symptoms including chest pains while at work in the late morning of October 18, 1972. His illness was obvious to other employees, one of whom took him home about 2 p. m. He died between midnight and 7 a. m. of October 19.

The atmosphere of the employment was relaxed; the office was air-conditioned. The employee had since 10 a. m. been engaged in replacing (by using transparent tape) some numbers on a chart or graph which was needed for a 2 p. m. meeting of a budget committee. Thus there was some “pressure” from a deadline, but there is no showing of the amount of work to be done within the time available.

The lay testimony from the other employees persuades us that the work being done was ordinary clerical work, entailing the ordinary necessity of getting something done.

The medical testimony, nevertheless, persuades us that the work caused or contributed to the fatal infarction. One coronary artery of the employee was severely restricted by a years-old atherosclerotic process which had compromised circulation to the heart muscle. In Luquette, the court noted that “an individual with arteriosclerosis who exceeds his cardiac reserve by strenuous activity could precipitate a myocardial infarction.” Our employee’s condition was such that the activity of doing not strenuous but ordinary work brought about his infarct and death (as, indeed, could ordinary activity at home have done). But the connection of work to infarct is not any less present. The trial judge found “that the evidence is amply sufficient and in fact overwhelming that indeed something occurred on the job, whether it was an infarction or . a development of an infarction, or . an additional insufficiency of oxygen supplied to the heart or something related to the heart, which was at the very least a further deterioration of his heart situation.”

This “injury” from “accident” did arise out of and in the course of the employment.

We also agree with the trial judge’s refusal of penalties and attorney’s fees. The question this court thought “probable cause” to refuse compensation entirely when it decided Luquette (306 So. 2d 771, later reversed by the Supreme Court) was “probable cause” here within R.S. 23:1201.2, entitling the city to a judicial determination of liability for a heart attack of a clerical employee.

Affirmed.


author: MARVIN, Judge.

text:
    McELROY METAL MILL, INC. v. V. Linton HUGHES d/b/a Hughes Engineering & Construction Company.
    No. 12742.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      Parkerson & Guerriero by Joe D. Guer-riero, Monroe, for defendant-appellant.
    Hayes, Harkey, Smith & Cascio, by Louis D. Smith, Monroe, for plaintiff-ap-pellee.
    Before PRICE, DENNIS and MARVIN, JJ. .
   MARVIN, Judge.

Defendant-appellant Hughes appeals from a money judgment awarded plaintiff-appellee McElroy in a suit on an open account, allowing against the account certain credits of $1,057.74, but rejecting Hughes’ reconventional demand against McElroy. McElroy answered the appeal, seeking (a) to delete the credits allowed below, and (b) to correct the time from which the lower court allowed legal interest.

In the latter part of 1971, Hughes contracted with one McFerren to construct for $35,000.00, a metal building for a skating rink in Bossier City similar to a building Hughes was constructing for another person in Shreveport. Hughes purchased roofing and paneling for both buildings from McElroy. Purchases of material for the two buildings were made on invoices beginning December 10, 1971, through June 20, 1972.

During the course of construction of the Bossier City building, McFerren, the owner, made complaints to Hughes about workmanship and material, including complaints about exposed raw metal edges on interior paneling called mini-rib paneling, and about mis-matched shades of color in the roofing. The exposed edges of the paneling were corrected by the installation by Hughes’ employees of rib covers furnished by McElroy. A similar problem existed on the Shreveport building and was corrected in the same manner. Hughes attempted to satisfy McFerren’s complaints about the roofing by removing and realigning the individual sheets, placing the sheets of similar shading on the same row. In June, 1972, Hughes was claiming and “invoiced” McElroy for, $1,638.00 in labor and travel expenses incurred in installing the rib covers on both buildings and changing the roofing on the Bossier City building. Eventually, McElroy allowed Hughes a credit for $480.00 for extra labor in installing rib covers on the Bossier City building. The rib covers were furnished by McElroy without charge to Hughes. The last credit given Hughes by McElroy was on July 17, 1973.

The skating rink opened in January or February of 1972. McFerren complained to Hughes about the placement of a wall of the building; about rain leaking through the roof of the building; and about defects and damage concerning the floor of the building. Law suits were verbally threatened and one or more meetings were held in the spring of 1972 between the principals, or their representatives. Hughes and McFerren partially settled their differences by Hughes allowing Mc-Ferren ten cents a square foot discount on the roof complaint ($2,625.00), and twenty cents a square foot on the mini-rib edge complaint ($1,100.00), for a total deduction of $3,725.00 from the balance of $7,175.00 on the building contract which McFerren had refused to pay.

On January 28, 1974, McElroy brought suit, claiming a balance owed for materials of $4,534.95.

Hughes answered the suit, claiming credits and discounts of some $2,000.00 against the account sued on, and reconvened for $3,725.00, itemizing this amount as $1,100.-00 in costs incurred in installing rib covers at twenty cents per square foot, and as $2,625.00 at ten cents per square foot for reconstructing the roof, all because of the alleged defective material. McElroy pleaded prescription and otherwise denied the reconventional demand.

The lower court awarded judgment on the open account, rejected the reconven-tional demand, but allowed Hughes $697.74 credit for discounts included on written purchase orders from Hughes to McElroy, and credit or compensation of $360.00 for the costs of installing rib covers on exposed edges of paneling in the Shreveport building.

On appeal, Hughes contends the lower court manifestly erred in not allowing as a reconventional demand or as further compensation, the amount Hughes allowed McFerren in the compromise settlement. Hughes also contends here that since he appealed only on the above issue, the issues of the credits allowed by the trial court are not before this court.

THE PURCHASE ORDER DISCOUNTS

Hughes submitted written purchase orders to McElroy using unit and total prices from which he had deducted ten percent, which, according to his testimony, was the discount verbally agreed to by McElroy’s representative. McElroy denied any such agreement. The trial court correctly found, even absent such a verbal agreement, the purchase order was a written offer for specific quantities of merchandise at a specific price which was accepted by McElroy when the merchandise was delivered to Hughes without McElroy making a counter-offer. The award of the discount is not and should not be deemed to be allowed in compensation, but as a factual dispute between the seller and the buyer as to the terms of the contract between them, properly resolved in favor of the buyer.

COMPENSATION

There was a dispute between Hughes and McElroy as to the amount owed for materials sold because of the allowance vel non, of the amount claimed by Hughes as a discount. There was also a dispute as to the amount, if any, for which McElroy might be obligated to correct at least the exposed edges of the interior panels. La.Civil Code Aritcles 2207-2216 set forth the substantive requirements of compensation. In Cox v. Heroman & Co., 298 So.2d 848, 854 (La.1974), the Supreme Court recognized, for the purposes of the substantive requirements for compensation, that debts might be equally due and de-maridable, “ . . . at least as of the time of the judgment.” It is also established that a claim or debt which is otherwise barred by prescription may be successfully pleaded in compensation, provided the claim or debt was not barred by prescription at the time the claim arose against which compensation is pleaded. Oilbelt Motor Co. v. George T. Bishop, Inc., 167 La. 183, 118 So. 881 (1928), and Georgia-Pacific v. Miller, 94 So.2d 531 (La.App. 1st Cir. 1957). Hughes’ claim against McElroy existed almost simultaneously with and had not prescribed when his debt to McElroy arose.

The factual issue as to the roofing was resolved below in favor of McElroy. There was evidence supporting the trial court’s conclusions and we find no manifest error in this regard. The evidence shows that the roofing sheets were not first grade material which were painted for exterior use. The underside of these sheets was only coated with a sealer to inhibit rust and discoloration. This side of the sheets was not intended to be exposed towards the elements. Hughes and Mc-Ferren decided to use this type sheet with the coated side exposed because it was cheaper in price than the first grade material coated and painted for exterior exposure. The roofing sheets used on the Bossier City building were not warranted by McElroy as to uniformity of coloring or shading.

The lower court found exposed edges on the interior panels to result from their being “improperly machined” by McElroy. The court noted Hughes’ testimony to be “highly subjective (and generalized), particularly with respect to the travel credit he seeks.” The court below found that “some credit” was due and allowed $360.00 for labor costs in installing rib covers on the Shreveport building, but disallowed the amount claimed for travel. We find no manifest error in this regard.

THE CLAIM FOR $3,725.00 ALLOWED McFERREN BY HUGHES

Counsel for Hughes contends that recovery should be allowed either (a) under the principle of subrogation as was employed in Cox v. Heroman & Co., 298 So.2d 848 (La.1974) or (b) under the principle of negotiorium gestio as was employed in Standard Motor Car Co. v. State Farm, 97 So.2d 435 (La.App. 1st Cir. 1957). These principles are inapposite here because the trial court concluded (and the evidence supports the conclusions) that there were “substantial complaints” about the location of a wall of the building, flooring defects, and overall workmanship, besides the complaints about the interior panels. Under whatever legal theory a claim may be allowed, the facts supporting the claim must be proved by a preponderance of the evidence by the party asserting the claim, whether as a plaintiff or as a defendant. The appellant’s pleadings were construed most liberally by the trial court and the denial of appellant’s claims is not founded on the inadequacy of principles upon which recovery may be allowed, but upon appellant’s failure to satisfy the burden of proof under any principle or theory.

LEGAL INTEREST FROM TIME OF DEMAND ?

The lower court awarded interest only from date of judicial demand. On May 1, 1972, defendant-appellant Hughes ordered and took delivery of the final shipment of goods invoiced June 23, 1972. La.C.C. Art. 1938 provides interest on all debts shall run from the date on which the account becomes due unless otherwise stipulated. Provisions contained in the invoice of June 23 relative to payment of the account form no part of the contract of sale because the sale was perfected on May 1, both parties having agreed to the object and price. See La.C.C. Arts. 2439, 2456. In absence of such provisions, we hold the account to have become due upon delivery of the goods. See La.C.C. Art. 2550. Plaintiff-appellee has prayed that legal interest be awarded from July 1, 1972. Since the debt was clearly due on or before that date, we amend the judgment of the trial court to award interest from July 1, 1972.

For the reasons assigned, we affirm the lower court, except to allow legal interest on the uncompensated portion of the judgment from July 1, 1972.

Appellant and appellee shall each pay one-half costs of the appeal.

      . The lower court characterized the pleadings on this issue “technically imprecise” but considered the issue as raising the defense of compensation because this issue was “abundantly clear” in the pleadings, the pre-trial conference and during the trial. The adverse party was given “fair notice” of the contentions of Hughes. The lower court was correct and its ruling was in accord with Townsend v. Cleve Heyl Chevrolet, 318 So.2d 618 (La. App.2d Cir., 1975), and Loyacano v. Continental Insurance Company cited therein. It is also noted that testimony on this issue was introduced without objection.

      . Counsel is incorrect. When the appellee has answered the appeal, he is not limited to the issues raised by the appellant. La.C.C.P. Art. 2133, Sharp v. St. Tammany Parish Hospital, 190 So.2d 500 (La.App. 1st Cir. 1966).


author: CULPEPPER, Judge.

text:
    Edgar MARTIN, Administrator of the Estate of Rickey Martin, Plaintiff and Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant and Appellee.
    No. 5118.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    Riddle & Bennett by John T. Bennett, Marksville, for plaintiff-appellant.
    Doran & Kivett by William J. Doran, Jr., Baton Rouge, for defendant-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This is a suit for damages instituted by Edgar Martin, individually and as administrator of the estate of his minor son, Rickey. The defendant is the State of Louisiana, through the Department of Highways. Rickey was driving a Honda motorcycle west on Louisiana Highway 451. He crested the top of a levee as he approached the intersection of Highway 451 and “cutoff road”, which runs along the west side of the levee. Mr. Kress Marcotte, who was traveling in an easterly direction on the highway, was turning left onto “cut-off road”, thus blocking Rickey Martin’s lane of travel. Rickey applied his brakes and skidded 90 feet before colliding with the right rear of the Marcotte automobile. Young Martin, who was 15 years of age at the time, received serious personal injuries.

Plaintiff settled his claim against Mar-cotte, and now seeks further damages from the Department of Highways. Subsequent to the institution of this suit, Rickey Martin married and was thereafter substituted as a party plaintiff for some of the damages originally prayed for.

The trial court found that the Department of Highways was negligent but held that plaintiff was barred from recovery by his contributory negligence. We affirm.

The decisive issue is whether the plaintiff, Rickey Martin, was guilty of contributory negligence.

We are unable to say that the trial judge’s finding of contributory negligence was erroneous. The basis for that finding was set forth in his written reasons for judgment as follows:

“The defendant Highway Department pleaded contributory negligence on the part of young Martin. He testified he was a little over fifteen years old at the time; that he lived in the vicinity of this intersection his whole life; that he was well acquainted with it; that he passed there almost daily, sometimes several times daily. It was in daylight hours; visibility was good; that he approached this levee from the east, on his motorcycle, and was travelling between twenty and forty miles per hour, according to him. And while it is true that the posted speed limit there is sixty miles per hour, it would be gross negligence, in the Court’s opinion, to come over this levee on Highway 451 at sixty miles per hour. True, young Martin was not making that speed. But the skid marks. he left and his inability to stop before hitting the Marcotte vehicle convinces the Court that his speed was about forty miles per hour or possibly more, rather than twenty miles per hour.
“It is and should be obvious to anyone of normal intelligence, who knows this intersection, that it is very dangerous; that one should proceed from the east, there on Highway 451, with the utmost caution. This intersection was there, in its obviously dangerous condition, for many years . . . since 1930, the Court believes. And for his entire life, certainly since his age of reason, this young man was aware of this danger. The Court concludes that young Martin was driving his motorcycle too fast under these conditions. His speed was negligence, under these circumstances, and was a contributory cause of the accident. The greater the danger the greater the care required, when one is cognizant of the danger.”

A determination of contributory negligence is, for the most part, a factual determination which lies within the province of the trial judge. In the absence of showing that the judge committed manifest error, his determination will not be disturbed upon review. Canter v. Koehring, 283 So.2d 716 (La.S.Ct.1973); Bloodorth v. Bloodworth, 306 So.2d 812 (La.App., 3rd Cir. 1975).

Appellant urges, however, that the instant case should be controlled by several decisions by the courts of appeal and Supreme Court, among them Christ v. Department of Highways, 161 So.2d 322 (La. App., 3rd Cir. 1964); Hall v. Department of Highways, 213 So.2d 169 (La.App., 3rd Cir. 1968); Harkins v. Department of Highways, 247 So.2d 644 (La.App., 3rd Cir. 1971); Gayle v. Department of Highways, 205 So.2d 775 (La.App., 1st Cir. 1967); McCallum v. State, Dept. of Highways, 246 So.2d 46 (La.App., 3rd Cir. 1971); and Vowell v. Manufacturers Casualty Insurance Company, 229 La. 798, 86 So.2d 909 (1956). In none of the cited cases, however, was it shown that the plaintiff was aware of the existence of the hazard in the roadway. While the general rule is that a motorist may assume that a road is safe for travel even at night, Vowell v. Manufacturers Casualty Insurance Company, 229 La. 798, 86 So.2d 909 (1956); Odom v. Texas Farm Poducts Company, 229 So.2d 118 (La.App., 2d Cir. 1970), this rule does not apply where a motorist has actual knowledge of the defect or hazard, Bourgeois v. Louisiana Department of Highways, 255 So.2d 861 (La.App., 4th Cir. 1972); Geeck v. Jahncke Service, Inc., 249 So.2d 241 (La.App., 4th Cir. 1971).

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

Affirmed.


author: WATSON, Judge.

text:
    John R. TARVER, Plaintiff-Appellee, v. Honorable Wade O. MARTIN, Jr., Secretary of State, State of Louisiana, et al., Defendants-Appellants.
    No. 5242.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 29, 1975.
    Writ Refused Sept. 5, 1975.

      Gravel, Roy & Burnes by Camille F. Gravel, Jr., and James J. Brady, Alexandria, Stuart S. Kay, Jr., DeRidder, Michael S. Baer, III, Baton Rouge, for defendants-appellants.
    Tillman & Mitchell by F. Clay Tillman, Jr., and James Mitchell, Leesville, for plaintiff-appellee.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiff, John R. Tarver, filed this suit for a writ of mandamus directing defendants: Wade O. Martin, Jr., Secretary of State, State of Louisiana; and the Democratic Party of the State of Louisiana, to place plaintiff’s name on the ballot for the primary election of November 1, 1975, as a candidate for the office of Senator from the Thirtieth Senatorial District.

Plaintiff’s qualifying papers were rejected by the Thirtieth Senatorial District Democratic Executive Committee (hereafter the “Committee”) because they were sent by mail and received after the filing deadline rather than deposited with the chairman or the secretary of that committee. The trial court held that the Committee had no discretion to reject plaintiff’s qualifying papers in the absence of an objection to his candidacy filed in a “court of competent jurisdiction” in accordance with LSA-R.S. 18:396. Judgment was rendered by the trial court granting a writ of mandamus and ordering that Tarver’s qualifying papers be accepted and that his name be placed on the ballot. The Democratic Party of the State of Louisiana through Ms. Frances Anderson, chairperson of the Committee, has appealed suspen-sively.

Motion to Dismiss

Plaintiff has filed a motion to dismiss the appeal. Two objections are urged to the appeal: (1) that this court has erred in giving preferential hearing to defendant’s appeal; and (2) that appellant has shown no authority to appeal the trial court’s ruling. We will first consider these procedural questions.

Plaintiff-appellee first contends that this is not an election contest and therefore is not entitled to a preferential hearing. We disagree. The trial court’s ruling relies on LSA-R.S. 18:396. In part this statute provides:

“Each party may appeal the decision of the trial court to the court of appeal and appropriate jurisdiction.
******
“ . . . the time within which an appeal may be taken and prosecuted, and the time within which the appellate court must render a decision shall, as far as practicable, be as is hereinafter provided for contesting elections.”

The appropriate procedure thus is that provided in LSA-R.S. 18:420(E), the statute for contesting elections, as follows:

“The party cast may appeal as in other cases, upon giving bond for a sum to be fixed by the court to cover all costs of court. However, the appeal shall be filed in the court of appeal of appropriate jurisdiction within not more than five days from the rendition of the judgment, and shall be tried on the original record and by preference over all other cases whatsoever.' The appellate court shall decide the issue within twenty-four hours after submission.”

Therefore, we find no merit to the contention that this appeal is not entitled to a preferential hearing.

The second procedural issue raised by plaintiff’s motion to dismiss the appeal is that the Democratic Party of the State of Louisiana, appearing through the Committee, defendant-appellant herein, has no right to prosecute this appeal. The issue raised is one of procedural capacity. Since the writ of mandamus of the trial court was directed to the Secretary of State of Louisiana and the Democratic Party of the State of Louisiana, judgment was rendered against these parties. These parties are also those plaintiffs named as defendants in his petition. Plaintiff can not name the Democratic Party of the State of Louisiana as defendant and secure judgment accordingly and then deny the right of the party cast to appeal. Further, the Democratic Party of the State of Louisiana, through its appropriate committee, here the 30th Senatorial District Democratic Executive Committee, is the proper party defendant in this case. State v. Republican State Central Committee, 192 So. 740 (La.App. 1 Cir. 1939). An unincorporated association such as the Democratic Party can be sued in its own name. LSA-C.C.P. art. 738.

Argument has been made by plaintiff that a resolution by the Democratic Party or its Central Committee is necessary to support the appeal. After suing the Democratic Party through Committee, and, after filing an amended petition, asking service only on the Secretary of State and the Committee chairperson, the plaintiff can not now be heard to question the authority of the chairperson to appeal.

Plaintiff Tarver cites Yuratich v. Plaquemines Parish Democratic Exec. Com., 32 So.2d 647 (La.App.Orl.1947) as authority for his contention that the proper party to maintain this appeal is the State Central Committee of the Democratic Party. We do not find the Yuratich case to be in point.

In the case at bar the parties-defendant were selected by plaintiff, and he can not complain for the first time on appeal that a party cast in judgment as the result of his suit is not a proper party to maintain this appeal. Compare Lasseigne v. Martin, 202 So.2d 250 (La.App. 1 Cir. 1967) where the Democratic State Central Committee was not named as a party defendant, although the chairman was, and it was held that the committee would be considered as a party to the suit.

There is no merit to the contention that the Democratic Party has no right to appeal.

Plaintiff’s motion to dismiss the appeal is denied.

On the Merits

The issues presented on the merits are: (1) whether plaintiff’s mailing of his qualifying papers constitutes a valid qualification as a candidate for the office of state senator; and (2) whether committees of the Democratic Party of the State of Louisiana can decline to certify a person as a candidate for office in the absence of a formal objection to the candidacy filed in a court of competent jurisdiction under the provisions of LSA-R.S. 18:396.

The facts were stipulated. On the last day of the qualifying period for the office of state senator from the 30th Senatorial District, August 7, 1975, plaintiff, John R. Tarver, decided to qualify at approximately 4:00 p. m. Plaintiff Tarver was, at that time, in Many, Louisiana and attempted to contact the chairperson of the Committee, Ms. Frances Anderson of Leesville, Louisiana. He was advised that chairperson Anderson would not be available in her office prior to the close of qualification at 5:00 p. m. One Bernard Miller then contacted the chairman of the Democratic State Central Committee, Arthur Watson, on behalf of Tarver. Miller was advised by Watson that, in the absence of chairperson Anderson, Tarver should qualify with the secretary of the Committee, Stuart S. Kay, Jr. Tarver made no attempt to contact Kay by telephone or to be physically present in Kay’s office in DeRidder, Louisiana prior to 5:00 p. m. In view of the distance between Many and DeRidder, Louisiana, Tarver decided that Kay was inaccessable to him prior to 5:00 p. m. and posted his qualifying form and fees in the United States Mail at approximately 4:20 p. m. addressed to Ms. Anderson. The latter re-ceivéd these papers on August 8, 1975, at 1:30 p. m., which was after the deadline for qualifying. The Committee met on August 9, 1975, and determined that Tarver was not entitled to qualify by mail, because the secretary of the Committee was available to him in DeRidder, Louisiana until the close of qualification at 5:00 p. m. on August 7, 1975. Secretary Kay was in fact available until after 5:00 p. m. that day. The Committee rejected Tarver’s qualification papers, and returned his papers and fees to him by certified mail.

As to the first issue, Tarver’s right to qualify by mail is precisely provided and limited by LSA-R.S. 18:397 which states:

§ 397. Filing papers or deposit with committee
Whenever provision is made in this Part for the filing of any notice, deposit, or any other paper with any party committee or party officer, it shall be filed with the chairman of the proper committee. If the chairman is not available, absents himself, cannot be found or for any reason refuses to accept the paper or deposit, it may be filed with the secretary. If the secretary is not available or refuses to accept the paper or deposit, or cannot be found, it may be deposited in the United States mail, at some point in Louisiana, by certified or registered mail in an envelope properly stamped and addressed to the chairman, which deposit in the mail constitutes a proper filing as of that date.
Failure of the chairman to receive the paper or deposit does not prejudice or deprive a person of any rights given him under this Part if the above conditions are complied with.

It is clear under the statute that Tarver had no right to qualify by mail when the secretary, Stuart S. Kay, Jr., was available. The parties stipulated that Kay was available and the issue clearly must be decided adversely to plaintiff.

Both the First Circuit and the Fourth Circuit Courts of Appeal have decided this exact issue in accordance with our views. See Jumonville v. Jewell, 320 So.2d 311 (La.App. 1 Cir. 1975), writ denied; Jordan v. 26th Senatorial Dist. Dem. Ex. Com., 202 So.2d 681 (La.App. 4 Cir. 1967), writ refused, 251 La. 65, 203 So.2d 86 (1967).

As to the second issue, the trial court held that the Committee was required to certify Tarver as a candidate in the absence of a formal objection filed in a court of competent jurisdiction under the provisions of LSA-R.S. 18:396., The trial court relied on Guillory v. Evangeline Parish Dem. Exec. Com., 252 So.2d 195 (La.App. 3 Cir. 1971). Guillory is not directly in point. This court in Guillory determined that there was an adequate compliance with LSA-R.S. 18:307 (the law prior to the enactment of 18:396), through the writing of a letter by the committee chairman setting out the objections to Guillory’s qualifications. This court specifically held that it was “Pretermitting defendant’s argument that LSA-R.S. 18:307 does not apply because the nomination papers were never filed ...” 252 So.2d 197. In other words, this Court never reached the issue of whether Guillory had filed his papers and had become a candidate, because the case turned on the point that a proper objection had been made. Plaintiff Tar-ver’s situation is the opposite — no objection was filed because Tarver’s papers were declined and he never became a candidate.

LSA-R.S. 18:396 provides a method by which candidacy can be questioned but an objection filed under this statute is not mandatory in order for a committee of the Democratic Party to note a person’s failure to properly qualify. An amicus curiae brief on behalf of Watson, the chairman of the Democratic State Central Committee, points out the practical difficulties which would be created if the Democratic Party of the State of Louisiana or committees thereof did not have the discretion to reject qualifying papers not timely or properly filed in the absence of a formal objection to those papers. That is not the intent of the statute. LSA-R.S. 18:391. “Filing notification of candidacy; declaration of qualifications; dual candidacy” provides in two places that:

“The name of no candidate shall appear on the ballot in violation of this Subsection.”

These mandatory provisions of the statute would be in conflict with LSA-R.S. 18:396 if a formal objection under LSA-R.S. 18:396 were a pre-requisite to noting a person’s failure to properly qualify.

A further mandatory provision in regard to primary elections in the State of Louisiana is LSA-R.S. 18:281 which provides in part:

“The Secretary of State shall not place on the official ballot the name of any person as a candidate for any political party not nominated in accordance with the provisions of this Part.”

The law governing' primary elections clearly requires compliance with its provisions before candidates can be certified and placed on the ballot. See State v. Democratic Second Pub. Serv. Dist. Exec. Com., 243 La. 151, 142 So.2d 378 (1962). LSA-R.S. 18:396 provides that any elector can object to a candidate by filing a written petition in a court of competent jurisdiction but this statute does not apply until a candidate has qualified according to law. LSA-R.S. 18:385(B) has further mandatory language in regard to qualification of candidates:

■“No person, regardless of political party affiliation or lack of political party affiliation, shall be eligible to be voted upon as a candidate for any office in any general election listed in Subsection A of this Section who has not been nominated as a candidate under the provisions of this Part.”

The trial court found as a fact that Tarver did not file his qualifying papers in accordance with the statute. In other words, the trial court found, and we find, that Tarver never became a “candidate”. Thus, there was no necessity or requirement that his candidacy be challenged in court. We do not agree with the trial court’s further finding that Tarver’s failure to properly qualify can only be raised by a written petition in a court of competent jurisdiction. Tarver’s failure to comply with the statutory requirements for qualification was properly noted by the Committee.

A person’s qualifying papers must be filed timely [LSA-R.S. 18:391 (A)] and a refusal to accept papers filed too late is a proper function of the committee calling the election. It would be pointless for the committee to go to court to obtain authority to refuse the proffered notice of intention which is submitted too late; the law does not require the doing of a useless and vain thing.

For the foregoing reasons, the judgment of the trial court is reversed and the writ of mandamus is recalled and set aside.

Reversed. Writ recalled and set aside.

      . LSA-R.S. 18:396 (as enacted by Act 1 of 1975):
      § 396. Objection to candidacy; certificate; suit; appeal
      Any person who has filed his application to become a candidate or any other qualified elector may object to the candidacy of any other person. The objection shall be in writing and by petition and shall contain, in detail, the reasons for the objection and shall be filed with any court of competent jurisdiction within five calendar days after the last day upon which notification of intention to become a candidate may be filed, or on the next judicial day if the fifth day is a legal holiday. The person whose candidacy is thus objected to has forty-eight hours within which to file his answer. Not later than the third judicial day after the answer has been filed, the court shall convene and hear the evidence offered by any of the parties or their counsel, and within twenty-four hours after the hearing is closed shall render an opinion. Each party may appeal the decision of the trial court to the court of appeal of appropriate jurisdiction. The committee or the board of supervisors of elections, or the secretary of state, as the case may be, is a necessary party, and service of a copy of the petition and a copy of all other court proceedings shall be made upon the chairman or the secretary of the committee or upon, the president of the board of supervisors of elections, or upon the secretary of state, as the case may be. The jurisdiction of the court, the time within which suit must be filed, the delay for answering, the method of procedure and trial, the time within which a decision shall be rendered by the lower court, the time within which an appeal may be taken and prosecuted, and the time within which the appellate court must render a decision shall, as far as practicable, be as is hereinafter provided for contesting elections.


author: MILLER, Judge.

text:
    Prosper FRANK, Jr., Plaintiff-Appellee, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    No. 5238.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      Don L. Broussard, Lafayette, for defendant-appellant.
    W. Glenn Soileau, Ville Platte, for plaintiff-appellee.
    Before MILLER, DOMENGEAUX, and WATSON, JJ.
   MILLER, Judge.

Plaintiff appellee Prosper Frank, Jr. moves to dismiss the appeal of defendant appellant The Travelers Insurance Company contending appellant failed to perfect their devolutive appeal by timely posting the appeal bond. We dismiss the appeal.

The trial court judgment was signed April 24, 1975 and notices of judgment were mailed to the parties that same date. Travelers was granted a devolutive appeal on July 8, 1975 conditioned on their filing a $1,000 appeal bond. The appeal bond was filed August 16, 1975.

Since Travelers did not apply for a new trial, the delays for perfecting the devolu-tive appeal are ninety (90) days commencing with the expiration of the delay for applying for a new trial. LSA-C.C.P. 2087(1). The delay for applying for a new trial is seven (7) days, exclusive of legal holidays, and these delays commence the day after the clerk mails the notice of judgment required by LSA-C.C.P. 1913. LSA-C.C.P. 1974.

This case having been taken under advisement, the required notices of judgment were mailed April 24, 1975. Accordingly, the seven day delay for applying for a new trial commenced April 25, 1975 and expired May 5, 1975 (April 26, 27, and May 3, 4 being legal holidays). The ninety (90) day period for taking a devolutive appeal commenced May 6, 1975 and expired August 4, 1975 (August 3 being a legal holiday), twelve days prior to the date the appeal bond was filed.

The appellate court’s jurisdiction attaches on the timely filing of the appeal bond. LSA-C.C.P. 2088. Since the appeal bond was not timely filed, this court has no jurisdiction. Pan American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So.2d 79 (1968); Freeman v. Liberty Mutual Insurance Company, 289 So.2d 875 (La.App. 3 Cir. 1974).

The appeal is dismissed at appellant’s costs.

Appeal dismissed.