author: PONDER, Judge.

text:
    Fred ALEXANDER v. Charles REED et al.
    No. 11220.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    On Rehearing May 9, 1977.
    Writ Refused June 14,1977.

      Donald R. Smith, Baton Rouge, and Jack A. Williams, Metairie, for plaintiff-appellant.
    James L. Donovan, New Orleans, for defendants-appellees, Carol Realty Co., and Federal Ins.
    James H. Drury, New Orleans, for defendants-appellees, Charles Reed, Carol Realty Corp. and American Indemnity Co.
    John W. Anthony, Bogalusa, for Central Louisiana Electric Co., defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for personal injuries, alternatively in tort and in workmen’s compensation. Plaintiff has appealed from the trial court’s decision that he is barred from recovery in tort by his contributory negligence and that he was not injured “in the course and scope of employment in the employer’s trade, business or occupation.”

Plaintiff claims the trial court committed the following errors of law:

1. In finding defendants free from negligence, or alternatively, in finding plaintiff guilty of contributory negligence;
2. In failing to apply the doctrine of res ipsa loquitur;
3.In finding that plaintiff was not engaged in the trade, business or occupation of his employer when injured.

We affirm in part, reverse in part and render.

The plaintiff was hired by Charles Reed, president of Carol Realty Corporation, to change two light bulbs at a tennis court owned by Carol Realty.

When plaintiff was unable to reach the outer bulb from below, he climbed on top of the cross bars to which the lights were attached, and by lying on the cross bar was able to reach the burned-out bulb. Because of his precarious position and darkness, plaintiff had trouble getting the new bulb into place. Mr. Reed and others on the ground tried to assist him by shining flashlights into the receptacle. There was a flash of light, and simultaneously or immediately thereafter, plaintiff received a severe electrical shock. He evidently hung on the cross bar momentarily, and then fell to the ground.

Plaintiff received second and third degree burns on his left arm, left side of his chest, right arm and right leg. He suffered fractures of the tibia and fibula of the left leg and a compression fracture of a vertebra. Plaintiff developed a myocardial infarction. Two operations were subsequently required for skin grafts.

NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE

Plaintiff claims the trial court erred in finding him guilty of contributory negligence. Actually the court seems to have found no negligence by defendants, but added that even if negligence were attributed to the defendants, plaintiff was barred from recovery by his own contributory negligence.

Plaintiff testified that something happened while he was attempting to screw in the light bulb, and he remembers nothing afterward. He asserts that the only reasonable inference to be drawn from this is that there was power in the lights, after he had been assured the power was shut off. Defendants and several of their witnesses, however, said plaintiff was leaving the cross arm and preparing to descend the pole when the accident occurred.

Plaintiff admitted he was aware of the presence of live power lines about four feet above the pole. A line fuse, a protective device, was blown on the night of the accident on the line supplying electricity to the tennis court.

We believe the following quotation from Billiot v. Bourg, La., 338 So.2d 1148 (1976) to be applicable to this case:

“When as here the evidence is conflicting, an appellate court should not disturb the trier of fact’s reasonable evaluation of one set of witnesses as credible, and its consequent rejection of the testimony of the opposing set of witnesses; nor should the reviewing court disturb the trier of fact’s reasonable factual inferences drawn from such testimony found by it to be credible.”

We can not say any manifest error has been shown.

RES IPSA LOQUITUR

In brief plaintiff attempts to invoke the doctrine of res ipsa loquitur. Res ipsa loquitur applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the injury. McCann v. Baton Rouge General Hospital, La., 276 So.2d 259 (1973). However, it does not apply when a body of direct evidence is available to explain the activity leading to the injury.

The trial court found there was evidence explaining the injury to Alexander. That plaintiff came in contact with the overhead lines is a reasonable inference from the evidence adduced. This finding makes the doctrine of res ipsa loquitur inapplicable.

WORKMEN’S COMPENSATION

The lower court found that the plaintiff was not in the course and scope of employment in the employer’s trade, business or occupation when he was injured. Benefits were therefore denied under the Workmen’s Compensation Act.

LSA-R.S. 23:1021(5) reads as follows: “ ‘Independent contractor’ means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.”

We have no trouble in concluding that plaintiff was an independent contractor engaged substantially in manual labor. He was rendering a service to Carol Realty Corporation under a contract, albeit oral. He was under the control of defendants only as to the result of his work. We further believe that the physical elements of the work clearly prevailed over the mental, and that Alexander was engaged substantially in manual labor. See Welch v. Newport Industries, 86 So.2d 704 (La.App. 1st Cir. 1956).

We believe the lower court fell into error in denying plaintiff’s compensation claim. LSA-R.S. 23:1021(5) puts an independent contractor doing substantial manual labor on the same footing as an employee. 24 La.L.R. 244.

He has to meet the test of being engaged in performing services arising out of and incidental to his employment in the course of his employer’s hazardous trade, business or occupation (R.S. 23:1035), or the accident must arise out of and in the course of his employment (R.S. 23:1031), as compared to the test of the work being a part of the employer’s hazardous trade, business or occupation (R.S. 23:1061). See Sam v. Deville Gin, Inc., 143 So.2d 838 (La.App. 3rd Cir. 1962), and Ludlow v. American Bank & Trust Co., 339 So.2d 478 (2nd Cir. 1976).

The testimony in regard to the business of the employer is:

“Carol Realty Corporation owns this property in the area we are speaking of, approximately nine or ten houses that are all occupied by members of the immediate Favrot family.”
* * * * * *
“Q. In addition to yourself, what other employees are on the payroll of Carol Realty?
A. We have a full-time caretaker and in the summertime we have a second man who assists in cutting grass and cleaning up.”

We find little difficulty in holding that the replacement of light bulbs at a tennis court arose out of and in the course of plaintiffs employment and that he was performing services arising out of and incidental to his employer’s trade, business or occupation. The insurance company is es-topped to deny that the employment was hazardous. R.S. 23:1166.

LSA-R.S. 23:1021(5) was enacted in part to prevent an employer from evading his responsibility for compensation benefits by hiring an independent contractor to perform the regular duties of an employee. If Carol Realty Corporation had directed one of its own employees to change the light bulbs, and he had been injured while doing so, there would be no question of coverage. See Dobson v. Standard Accident Insurance Company, 228 La. 837, 84 So.2d 210 (1955).

Plaintiff is totally and permanently disabled within the meaning of the Workmen’s Compensation Act. Mr. Alexander testified, without contradiction, that his back still troubles him and there are some days he can not walk without crutches. Dr. Daniel S. Sinclair, an orthopedic surgeon, testified that as of March 26,1975, plaintiff was not able to return to work. Defendants offered no evidence to refute this claim of total and permanent disability.

The trial court found that plaintiff was hired to change two light bulbs at $5.00 apiece, for a total of $10.00. When an employee is hired to work only one day per week, compensation is based on what his wages would be for a six day work week. See Jarrell v. Travelers Insurance Co., 218 La. 531, 50 So.2d 22 (1950) and Farris v. Ducote, 293 So.2d 589 (3rd Cir. 1974), writ refused La. 295 So.2d 814. On the day this accident occurred, May 21, 1973, LSA-R.S. 23:1221(2) provided that payment for total and permanent disability would be 65% of wages for a period of 500 weeks, with a $65.00 per week maximum. On that basis of wages totalling $60.00 per week, Mr. Alexander is entitled to $39.00 per week for 500 weeks.

Plaintiff introduced records to substantiate $7,327.25 in medical payments as of the date of trial. He is entitled to recover the full amount of these expenses. LSA-R.S. 23:1203.

Finally, plaintiff urges this court to award statutory penalties and attorney’s fees for arbitrary failure to pay benefits. Under the circumstances of this case, we do not believe the failure to pay benefits can be considered arbitrary.

For the above reasons, the judgment of the trial court is reversed as to Carol Realty Corporation and Federal Insurance Company. Judgment is rendered in favor of plaintiff and against defendants Carol Realty Corporation and Federal Insurance Company for 500 weeks of compensation at $39.00 per week, and all medical expenses incurred up to the statutory maximum. This award shall bear interest from the due date of each amount until paid. In all other respects the judgment is affirmed. Carol Realty Corporation and Federal Insurance are cast with all costs.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

A rehearing was granted to correct the method of computation of the weekly benefits.

LSA-R.S. 23:1021(11), as it read at the time of the accident stated:

“ ‘Wages’ means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: * * * (d) If the employee is employed on a unit, piecework, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by five; provided, however, that if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by five.”

By making the calculations outlined in the statute, we arrive at a weekly wage of $50.00. The plaintiff is entitled to weekly compensation of $32.50. See Dykes v. North River Insurance Company, 270 So.2d 329 (1st Cir. 1972) writ refused La., 272 So.2d 375 (1973).

For the above reasons the judgment is amended on rehearing to reduce plaintiff’s weekly compensation benefits from $39.00 to $32.50. In all other respects, we adhere to our original opinion.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    CONTINENTAL INSURANCE COMPANY and National Corporation Service, Inc. v. FIREMAN’S FUND INSURANCE COMPANY and Plywood Panels, Inc.
    No. 7839.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1977.
    Rehearing Denied Oct. 12, 1977.

      Drury, Lozes & Curry, Robert H. Wood, Jr., New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, James L. Donovan, New Orleans, for defendants-appellants.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   LEMMON, Judge.

This is a contest between two insurers over liability for workmen’s compensation benefits being paid to Alphonse White, a Pendleton Detectives’ employee who was injured on the job while working undercover as a plant employee of Plywood Panels, Inc. Pendleton’s insurer instituted payment of benefits and then filed this suit to recover all or part of the payments from Plywood’s insurer. The trial court ruled that Plywood’s insurer was liable for 50% of the benefits due and paid or to be paid, and both insurers appealed.

In August, 1973 Plywood, who had been experiencing employee dissension and losses through employee theft, contacted Pendle-ton to furnish an agent to work in Plywood’s plant and covertly observe employee activities. Pendleton hired White for this assignment and sent him to Plywood, who placed him on the payroll as a laborer. As in the case of other undercover agents furnished by Pendleton for similar purposes, White was required to join the union and to pay the union initiation fee and monthly dues, to perform all of the employment duties required of other employees in the same job classification, and additionally to submit reports to Pendleton of each work shift as to unusual incidents or suspicious activities.

White worked a regular 40-hour week on shift work, plus overtime. His undercover operation was known only to a few Plywood officials, and even his production foreman was not aware of his dual status. In fact several other Pendleton agents were working undercover for Plywood at the same time.

In October, 1973 Plywood posted notice of a job opening for a printer operator, and through normal union bidding procedures White signed for and secured the higher paying position. As an operator White worked regular shift hours and performed all duties of an operator in addition to his undercover work and daily reports thereof.

While he was working as a laborer, White was paid weekly by Plywood at the union contract rate of $2.10 per hour for regular time. Pendleton also paid White 40 cents per hour (for regular time only) in order to bring his salary to $2.50 per hour, Pendle-ton’s standard rate for undercover agents, and $3.00 per daily report. Each employer handled social security and F.I.C.A. contributions as to these salary payments.

In addition to the $2.10 per hour paid to White, Plywood paid $3.90 per hour to Pen-dleton, who supervised the overall operation and furnished daily coordination and instruction to White. Thus, the total cost to Plywood was $6.00 per hour, and Pendleton received $3.50 per hour in excess of the 40-cent salary supplement it paid to White.

After his promotion to operator White was paid by Plywood at the union contract rate of $2.80 per hour. Pendleton continued paying him $3.00 per daily report, but discontinued the 40-cent salary supplement, since White’s salary with Plywood was then over the $2.50 minimum for Pendleton’s undercover agents. Moreover, Pendleton continued to receive $3.50 per hour net from Plywood, thus increasing the total cost to Plywood to $6.30 per hour.

White was injured on the job in April, 1974, when while cleaning the cylinder his hand slipped between two moving rollers. Prior to the injury Plywood and Pendleton had neither agreed to nor discussed workmen’s compensation liability.

As to the employee, both employers are solidarily liable for workmen’s compensation benefits. Each employer had an employment contract with the employee, each exercised some degree of control over the employee, and at the time of the injury the employee was simultaneously performing services for both employers. Neither employer had a full interest in the services being performed, and one could not reasonably conclude on this record that only one employer was being served at the time of the injury. Therefore, the employee could recover from either employer.

As to liability between employers, however, more difficult questions are presented. Specifically involved in this case are the issues of whether the solidary liability should be apportioned, and, if so, in what proportions.

On the liability of joint employers R.S. 23:1031 provides in pertinent part:

“In case any employee for whose injury or death payments are due is, at the time of the injury, employed and paid jointly by two or more employers subject to the provisions of this Chapter, such employers shall contribute to such payments in proportion to their several wage liabilities to the employee; but nothing in this section shall prevent any arrangement between the employers for different distribution, as between themselves, of the ultimate burden of such payments.”

Thus, in the case of joint employers, where there has been no agreement as to compensation liability, R.S. 23:1031 requires payment in proportion of “their several wage liabilities to the employee” at the time the injury occurred.

At the time of this accident White was actually receiving $112.00 per week from Plywood and $15.00 per week from Pendleton, or a total of $127.00 per week. But from a practical standpoint, because Plywood ultimately paid for all of White’s services, it matters little who actually disbursed the salary. Under R.S. 23:1031 the key inquiry is the liability of each joint employer and not the amount of actual payment by each.

Each employer had a separate employment contract with White. Plywood’s respective wage liability was $112.00 per week under their contract. Moreover, Plywood received the full services for which this salary was paid. Indeed, if White had not performed these services as a printer operator, Plywood would have had to employ someone else at the same salary in order to maintain the same level of operation.

On the other hand, White was primarily hired as an undercover investigator, and Pendleton’s respective wage liability to White under their separate employment contract was $100.00 per week for that work, plus $15.00 per week for reports. While Pendleton was actually relieved of paying the $100.00 weekly salary because Plywood paid White in excess of $2.50 per hour for performing services as a printer operator while observing employee activities as part of the investigation, this amount was still part of Pendleton’s wage liability at the time of the accident.

Therefore, to the extent of the first $100.00 ,of White’s weekly wages, each employer was jointly liable. Plywood was also solely liable for an additional $12.00 (for the 30-cent per hour excess of the salary of a printer operator over the salary of an undercover agent), and Pendleton was solely liable for an additional $15.00 per week (for reports). By dividing the joint liability for the first $100.00 equally, we calculate the proration as between employers according to their several wage liabilities for the $127.00 weekly wages as follows:

Pendleton - $50.00 + $15.00 or 51.2% $127.00
Plywood - $50.00+ $12.00 or 48.8% $127.00

For these reasons the judgment of the trial court is amended to fix liability for benefits due, as between employers at 51.2% for plaintiffs and 48.8% for defendants. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . The record does not show the exact monetary terms of the Plywood-Pendleton contract nor the considerations involved in the negotiation of these terms. The fact remains, however, that Pendleton received a constant sum of $3.50 per hour in excess of the minimum salary guaranteed by Pendleton to the employee.

      . In the determination of each employer’s wage liability to White, it was of little consequence that Plywood also paid Pendleton an “override” of $3.50 per hour for furnishing an investigative agent and supervising and coordinating his operation. The Plywood-Pendleton contract for furnishing total services is not determinative in this case of the employers’ “several wage liabilities to the employee” under R.S. 23:1031, the statute which specifies the method of apportioning compensation contribution.

      . While the consideration of services received by the employer is more important in determining solidary liability as to the employee, that factor may also be involved in the determination of the proportionate wage liability of each employer to the employee.

      . Indeed, if White had not been paid, he could have recovered wages to this extent from either employer.


author: DOMENGEAUX, Judge.

text:
    Mrs. Levy HANKS, Plaintiff-Appellant, v. DRS. RANSON, SWAN AND BURCH, LTD., et al., Defendant-Appellee.
    No. 6233.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Rehearing Denied Sept. 15, 1977.
    Pugh, Boudreaux & Gachassin by Charles J. Boudreaux, Lafayette, for defendant-appellee.

      J. Minos Simon, Lafayette, for plaintiff-appellant.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   MOTION TO REMAND

DOMENGEAUX, Judge.

The defendant-appellee, St. Paul Fire and Marine Insurance Company, moves to remand this suit to the trial court to enable it to traverse the right of the plaintiff-appellant, Mrs. Levy Hanks, to proceed with her appeal in forma pauperis. The motion is opposed. We remand.

The record of this appeal has not as yet been lodged with this court.

This is a suit for malpractice filed by the plaintiff in forma pauperis. The case was tried before a jury, which rendered a verdict in favor of the defendant, and on May 17, 1977, a formal judgment was read and signed in accord with the jury’s verdict. On June 9, 1977 the plaintiff timely moved for and was granted a devolutive appeal to this court, returnable August 8, 1977. The Order of Appeal was silent as to a bond.

The defendant has timely moved in this court to remand the appeal in order that it might traverse the right of the plaintiff to proceed with her appeal in forma pauperis. The defendant alleges that shortly before the trial of this matter the plaintiff entered into a compromise agreement with several co-defendants, from which agreement she has received a substantial sum of money, and hence is no longer a pauper.

The record does not show the date of the compromise agreement, but it does show that the trial judge signed an order May 25, 1977 dismissing, with prejudice, the plaintiff’s suit against these defendants.

LSA-C.C.P. Art. 5185 provides that when an order of court permits a party to litigate without the payment of costs, he is entitled, among other things, to “the right to a de-volutive appeal.” In the instant suit, the order issued by the trial court enabling the plaintiff to file her suit in forma pauperis, entitled plaintiff to the right to a devolu-tive appeal without the necessity of prepayment of the costs of furnishing bond therefor.

In Oldham v. Hoover, 140 So.2d 417 (La.App. 1st Cir. 1962), the Court said:

“Our courts have held that where a devolutive appeal is taken in forma pau-peris without allowing the appellee sufficient time in which to traverse the affidavits of poverty, the appellate court may, upon timely application therefore, remand the cause to give the appellee the opportunity to do so. See Brewer v. Thoele, 186 La. 168, 171 So. 839; Buckley v. Thibodaux, 181 La. 416, 159 So. 603.” (Emphasis added).

In Darby v. Travelers Insurance Company, 272 So.2d 798 (La.App. 3rd Cir. 1973), we refused to remand the case to enable the defendants-appellees to traverse plaintiff’s right to proceed in forma pauperis, because we felt that defendants had had an adequate opportunity to traverse in the trial court. See also Ross v. Hatchette, 247 So.2d 399 (La.App. 3rd Cir. 1971).

Under the facts of this case, we do not believe that the defendant has had a fair opportunity to traverse in the district court, and hence, we remand this appeal to the lower court for that purpose.

APPEAL REMANDED.


author: REDMANN, Judge.

text:
    JEFFERSON PARISH SCHOOL BOARD v. ROWLEY COMPANY, INC., et al.
    No. 8263.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 29, 1977.
    Rehearings Denied Oct. 12, 1977.
    Writs Refused Nov. 23, 1977.

      Jack A. Grant, Gretna, for plaintiff-appellant.
    René R. Nicaud, Nicaud, Justrabo & Rousset, New Orleans, for defendant-appel-lee.
    William A. Porteous, III, Porteous, Tole-dano, Hainkel & Johnson, New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   REDMANN, Judge.

During renovation of a school building a fire of unknown cause destroyed $36,148.15 of laboratory tables, cabinets, etc. intended to be installed into a science laboratory. Plaintiff school board seeks judgment that the loss must be borne by defendant Row-ley Company, Inc. (which furnished and was to install the destroyed goods) or by the board’s own insurer. Rowley reconvened for the same amount, since that amount, although previously paid, had been withheld from other moneys due to Rowley. From a judgment condemning the board’s insurer for the loss and granting Rowley’s recon-ventional demand, both the board and the insurer appeal. We reverse.

The Board-Rowley Dispute

The board-Rowley question is one of contract law. The board’s theory of its non-liability to Rowley is that the terms of the advertisement for public bidding expressly bound bidders to “general conditions” including an obligation to protect one’s own work and replace damaged work and to provide builder’s risk insurance; that Rowley’s bid form expressly averred Rowley had “received and carefully examined the . . . general conditions of the contract” and had a “clear understanding of the said documents”, and promised performance “in accord with the drawings, specifications, and contract documents”; and that the board accepted in the form of a purchase order “as per bid”, thus completing the contract as originally advertised for public bidding.

The trial judge’s reasons noted Rowley’s position that the substitution of a “purchase order” for a “formal contract” waived all requirements of the advertised contract except “specifications covering the actual work” (a waiver Rowley felt had also occurred on its eight or nine other contracts with the board during the four preceding years when it had similarly obtained no performance bond or insurance). The judge concluded “that with respect to the builder’s risk [insurance] requirement there was no meeting of the minds . . . . Therefore, the court finds that the insurance provisions are not binding upon the parties.”

We disagree. If public bidding is an honest attempt at getting the best value for tax moneys, then every bidder must be held bound by the terms of the advertising. If one bidder knows that his price need not include some item specified (here, insurance and bond), then that bidder can charge more for what he does yet underbid others without disclosing that his bid is one with a qualification. In this very case, the lowest bidder’s bid was rejected as a “qualified bid” because it provided for delivery later than the specifications’ date. If Rowley’s bid had expressly rejected the specified provisions for insurance (and protection and replacement of its work), Rowley’s bid would, other bidders must hope, also have been rejected.

We deem it a matter of public policy, inherent in the law of public bidding, that the successful bidder is estopped to deny a “meeting of the minds” on clearly expressed contractual provisions. Nor can the public body advertising for bids alter the clear specifications by issuing a “purchase order” rather than the formal contract that the advertised specifications provided.

Here, the specifications were clear. They were not subject to misunderstanding and, Rowley’s vice-president testified, they were not misunderstood. Rowley knew that its bid included insurance, but relied on its past experience to conclude that no one would request insurance.

The clear contract terms include in the General Conditions:

18. Protection of Work and Property— Emergency: Contractor shall at all times safely guard owner’s property from injury or loss in connection with [sic] this contract. He shall at all times safely guard and protect his own work, and that of adjacent property, from damage. Contractor shall replace or make good any such damage, loss or injury unless such be caused directly by errors contained in contract or by Owner .

There is no suggestion that the loss-causing fire is attributable to contract error or to the owner.

General Condition 25(e) further required the contractor “to maintain Builder’s Risk Insurance (fire and extended coverage) on a 100% completed value basis” and the Supplemental General Conditions, prepared exclusively for the science equipment contract, in item 10 provides:

Insurance requirements shall be as noted in General Conditions and shall be in amounts as follows: . D. Builder’s Risk: Fire and Extended Coverage (100% of value of Contract written in name of Contractor and Owner as their interest may appear).

Rowley is obliged under general condition 13 to “replace or make good” the damage not caused by contract error or by the board as owner. Rowley is also obliged under general condition 25 and supplemental general condition 10 to provide builder’s risk insurance. Rowley thus bears the loss, either directly under its obligation to replace or indirectly for breach of its obligation to insure. The judgment in Rowley’s favor must therefore be reversed.

The Board-Insurer Dispute

The Board’s property insurer is liable to the board only if the board has suffered a loss of its property. Whether one characterize the board-Rowley bargain as sale, building contract, or some innominate hybrid (see C.C. 1777), at some point all elements of the science laboratory certainly were to become the property of the board. Insofar as the insurer’s liability is concerned, the determinative question is whether title passed prior to the fire.

The trial judge concluded that the bargain was a sale, because of the name “purchase order” printed on the one-page last document of the multi-documented series, because a board representative inspected the goods after delivery and (as General Condition 23 specified) the board paid 90% of invoices for equipment delivered, and because the great bulk of the contract price (68.6%) was for the laboratory work-tables (with troughs, pipe-lines, etc.), cabinetry and the like, while the cost of affixing those items to the building and “scribing” them to precisely fit floors and walls was but a minor part (3.7%) of the price (the remainder being 1.8% “receiving, unloading and storing” and 11.9% assembly of the materials, 10% profit, and 3.9% tax). The trial judge cited C.C. 2467, 2468, 2475, 2477, 2478 and 1908 and Hunt v. Suares, 1836, 9 La. 434, and Vico Concrete Co. Inc. v. Antley, La.App. 2 Cir. 1973, 283 So.2d 830.

The cited Code articles relate to delivery and to risk of loss after a sale, except a sale with a suspensive condition. They do not aid in deciding whether our contract was a sale or, if a sale, whether one with a sus-pensive condition.

Hunt did not even involve a simple contract to furnish and install, much less require the conclusion that such a contract is a sale if the furnishing costs more than the installing. Hunt was not a one-price contract case, but one “to recover the price of various articles, as detailed in [plaintiffs’] account, which they allege were sold” to defendant. The defendant

“aver[red] that he had made a contract with the plaintiffs for the building and putting up of certain marble mantle and chimney pieces . . . but there is no positive evidence of such a contract as is set up by the defendant. .
It appears to us from the evidence that the principal contract was one of sale of the mantle pieces ready made, and that the agreement to put them up and furnish materials for that purpose, does not take the contract as to the mantle pieces out of the rule which governs that species of contract . . . ” 9 La. at 435-436.

The court then added, as a corroborative afterthought rather than a premise, “and the cost of putting up is trifling, compared with the cost of the article.” Id. at 436.

Vico involved a contract for the delivery of ready-mix concrete into a foundation subcontractor’s building forms. Vico was simply not a case of a contract to install.

More to the point is Kegler’s Inc. v. Levy, La.App. 4 Cir. 1970, 239 So.2d 450, writ refused, 256 La. 1150, 241 So.2d 253. There a contract to furnish and install carpeting was held a construction contract rather than a sale (and the action for damages was therefore not prescribed by the one-year prescription of actions to rescind, or recover damages from, a sale).

The basic distinction between Kegler’s and Hunt is that Kegler’s had a one-price furnish-and-install contract while Hunt had several sales at individual prices of “various articles”, described as marble mantle pieces, chimney pieces and hearths (which one may suppose because of aesthetic considerations were individually selected by the defendant for his house). Hunt expressly rejected, as unsupported by the evidence, the defendant’s contention that he had a contract with plaintiffs to build mantle pieces, and found that the mantle pieces were “ready made” and sold as individual items “as detailed in [plaintiffs’] account”.

Hunt is thus factually dissimilar to Ke-gler’s and to our case. Hunt is not controlling.

Perhaps in a broad sense it makes no difference in deciding risk (or title) whether one characterize a furnish-and-install contract as construction or as sale. If the installing is a matter of any moment — as in the case of wall-to-wall carpeting, or “built-in” kitchen cabinets — one who would characterize the contract as sale must recognize that the home-owner’s intent and the contract’s intent is not that the home-owner should have rolls of carpet and padding, or crates of cabinets (or unassembled cabinet pieces). If the furnisher-installer “sells” the carpeting or the cabinets, it sells them installed. If the cabinets are the subject of a “sale”, the sale is at least one subject to the condition that the seller install. That condition is suspensive: if you install, I will buy (and if you do not install I do not want and will not buy). But the sale subject to a suspensive condition does not transfer the property or the risk of loss to the buyer; C.C. 2471 and 2044; Aubry et Rau, Obligations (La.Law Inst, trans.), § 302a, aa, p. 69.

Obviously some “installing” is so trifling (a word used by Hunt ) as not to suspend the sale, as in an agreement to deliver and install an electric refrigerator, when “installing” means merely setting in place and connecting the refrigerator’s electric plug into the existing wall outlet. But where installing is anything other than trifling, surely the “buyer” is entitled to insist on the “seller’s” performance in full before becoming bound to pay. Suppose a department store “sells” a built-in dishwasher or a room air-conditioner with a promise to install (whether for a separately stated charge is immaterial since the ordinary homeowner wants only one contract, namely for the thing installed). Suppose further that the store merely delivers the appliance, doing nothing towards installing it. The “buyer” surely has not got what he bargained for: if he bargained for the “sale” of the thing, he bargained for it installed —that is, subject to the suspensive condition that it first be installed.

Accordingly, we could assume (despite extreme doubt) that sale is the correct legal categorization of a one-price contract to outfit a school science laboratory with wall cabinets and laboratory tables with troughs, gas, water, distilled water and drain lines, all to be permanently affixed and precisely fitted to floor and walls (except that final gas, water and drain connections and electrical supply are to be provided by another party). Even so, we must hold that the “sale” is subject to a suspen-sive condition of installation which was not fulfilled and the property and risk of loss therefore remained with the “seller”, C.C. 2471. Accordingly the school board suffered no loss of its property and its insurer is not liable. The judgment against the insurer must therefore be reversed.

Decree

The judgment appealed from is reversed and the demands of plaintiff against Louisiana Joint Underwriters of Audubon Insurance Company and of Rowley, Inc. against plaintiff are dismissed. There is further judgment in favor of plaintiff and against Rowley decreeing plaintiff not indebted to Rowley for the $36,148.15 of goods lost by fire. Rowley is to pay all costs except those attributable to plaintiff’s demand against Louisiana Joint Underwriters, which plaintiff shall bear insofar as chargeable by law.

      . Rowley argues that the board-Rowley contract is one of sale, in which, ordinarily, the risk of loss falls upon the buyer; La.C.C. 2467. We agree with the board that the present contract, whether sale or construction contract (in which case C.C. 2758 would place the risk of loss on Rowley), makes its own rules which are controlling, as authorized by C.C. 1764(A)(2).

      . The only informality is lack of “notarial form” which the contract documents specified. Both parties evidently waived this formality while entering into a written contract by written offer (bid) and acceptance (“purchase order”). The only noncompliance with La.R.S. 38:2213, para. 1, was failure of Rowley to supply bond (as to which see n. 3 below).

      . Q. And I believe in your bid for the job you indicated you were familiar with the general specifications for the job and for the particular specifications that you were bidding on, isn’t that correct? A. That’s right. Q. And were you familiar with such requirements in there as performance bonds? A. Yes, I was. Q. Were you familiar with the fact that builder’s risk insurance was to be obtained? A. Yes, may I state my position on that at this point?
      THE COURT: Certainly. A. We realized that this was a contract form. We realized that a performance bond and insurance could possibly be required, but based upon our past experience with the School Board for the last three or four years prior to that, we had never been asked to sign a contract, never been asked to furnish a performance bond, or insurance, or any of these documents, and, of course, these things are initiated by the School Board. We don’t initiate them ourself. Q. Well, you were familiar, nevertheless, that those were part of the bid, is that correct, or the proposal that Jefferson Parish had made? A. That’s correct.

      . Rowley’s argument that it is not liable for lack of insurance because not put in default by demand fails because, La.C.C. 1933(1), when an obligation is “of such a nature, that it [can] only be [performed] . . . under certain circumstances, which no longer exist, the debt- or need not be put in legal delay [i. e., default] to entitle the creditor to damages.” The obligation to insure property can only be performed while the property exists.

      . This cryptic comparison of costs does not appear to merit the emphasis conferred by Comment, 1947, 7 La.L.Rev. 564 (deemed to have formulated “the proper test, and traditional test” by Note, 1972, 32 La.L.Rev. 446, 449). See n. 7 below.

      . One who has alienated an individually determined thing under a suspensive condition remains owner until fulfillment of this condition. From this follow, among others, the following consequences:
      The thing is held at the risk and peril of the one who has alienated it conditionally. Hence, if the thing perishes before the happening of the condition he cannot claim performance of a promise made to him in consideration of the obligation to give which he has assumed. The latter obligation is considered as having never existed for lack of object and the former must be considered as having never existed for lack of cause.

      . Perhaps Hunt meant that, in the case of comparatively expensive — perhaps unique? — marble fireplaces, the cost of installing was so trifling that (in those days when artisans were more plentiful) a homeowner’s consent to the purchases would not have been affected even if installation were not available from the seller.


author: BOLIN, Judge.

text:
    Judy SAMANIEGO, Plaintiff-Appellant, v. HORSELESS CARRIAGE, INC., d/b/a Car Land, Defendant-Appellee.
    No. 13282.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26,1977.
    Writ Refused Nov. 23, 1977.

      Guerriero & Placke by Joe D. Guerriero, Monroe, for plaintiff-appellant.
    Jerry L. Finley, Denham Springs, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff purchased a used car from defendant. When she became delinquent in her payments, defendant’s agent located and returned the vehicle to defendant’s car lot. Alleging her automobile was seized without her consent or a court order, plaintiff sued for damages for wrongful seizure. Defendant denied the taking was wrongful and reconvened for the balance of the purchase price of the car. The trial court found implied consent to the taking, rejected plaintiff’s demands, and awarded defendant judgment on its reconventional demand. Plaintiff appeals and we reverse.

The principal issue is whether plaintiff voluntarily surrendered her automobile to defendant.

In 1976 plaintiff purchased a 1971 Volkswagen from Car Land for $1,250. She paid $450 cash and signed a note for the balance payable in thirteen monthly installments. This note was secured by a chattel mortgage. The debt became delinquent, plaintiff paying only one installment.

Defendant’s collecting agent located both plaintiff and her vehicle. He told plaintiff that he had to take the car unless she could make the necessary payments that evening. He testified that he made no attempt that night to secure her written consent to the removal. Instead, the agent presumed her consent because she never told him that he could not take the car and because she allegedly helped him start the car by crossing the ignition wires.

Following the discussion with plaintiff, the agent drove the car to defendant’s lot where it was to be stored until plaintiff became current with her payments. After the taking plaintiff visited the car lot, retrieved personal items from the car, but apparently did not demand the return of the car. The vehicle remained on defendant’s lot until the date of trial.

The trial court accepted defendant’s version of what happened on the night of the taking and during the days that followed. We find no error in this factual conclusion of the trial court. Canter v. Koehring Co., 283 So.2d 716 (La.1973). However, we find the lower court erred in concluding that those facts constituted consent.

Unless a debtor freely consents to the repossession, a creditor may seize property only through judicial process. Lee v. Lewis, 339 So.2d 513 (La.App. 2d Cir., 1976); Vercher v. Toda Enterprises, Inc., 216 So.2d 318 (La.App. 3d Cir., 1968).

Our courts limit approval of extra-judicial repossessions to those cases where it can be clearly shown that the debtor consents to the repossession. Grandeson v. International Harvester Credit Corp., 61 So.2d 550 (La.App. 2d Cir., 1952), aff’d, 223 La. 504, 66 So.2d 317 (1953). This consent must be proved as any other fact tending to show a state of mind. Where it is not expressly given, orally or in writing, it may be inferred from actions which, when considered with one’s words and all other circumstances, can lead to no other reasonable conclusion. But if the circumstances and words do not strongly imply consent to reasonable minds, it shall not be found. Mere inaction or the absence of protest to the taking does not imply consent. Lee v. Lewis, supra; Price v. General Motors Acceptance Corp., 95 So.2d 834 (La.App. 2d Cir., 1957).

We hold that the inferences drawn by defendant from plaintiffs conduct, including her subsequent acquiescence to the taking, do not manifest the clear consent required by law to relieve defendant of liability.

The measure of damages for the wrongful taking of a movable is the value of the property seized. Hitt v. Herndon, 166 La. 497, 117 So. 568 (1928); Bryson v. Bates-Crumley Chevrolet Co., Inc., 171 So. 605 (La.App. 2d Cir., 1937). Where there is a security interest, this value corresponds with plaintiff’s equitable interest in the property. Levy v. Andress-Hanna, Inc., 96 So.2d 373 (La.App. 2d Cir., 1957). Since there is no evidence of the market value of the Volkswagen at the time of seizure, we compute plaintiff’s equitable interest as the amount paid on the purchase price. See Grandeson v. International Harvester, supra. The record shows plaintiff paid $516 on the purchase price of the automobile ($450 cash and one $66 installment).

General damages may also be awarded in a suit for the wrongful taking of a movable. Price v. GMAC, supra. This taking involved neither violence nor threats; nor did plaintiff offer adequate proof of general damages to support a substantial award. However, she did prove an invasion of her rights, entitling her to recover nominal damages which we fix at $100. See Edwards v. Butler, 203 So.2d 90 (La.App. 2d Cir., 1967); Grandeson v. International Harvester, supra.

Defendant is not entitled to judgment on its reconventional demand. When it illegally seized the car, all claims it had against the automobile were eliminated from consideration as though defendant had asked for a rescission of the sale for nonpayment of the purchase price. If possible the result should restore the parties to the status quo. Bryson v. Bates-Crumley Chevrolet, supra. However, since plaintiff has not asked for the return of the Volkswagen, it would be responsive to the recon-ventional demand to recognize the defendant as owner of the automobile and condition the award of damages to plaintiff on her transfer of title to defendant. See Lee v. Lewis, supra.

The judgment of the lower court is set aside; judgment is now rendered in favor of Judy Samaniego against Horseless Carriage, Inc., d/b/a Car Land, for $616.00 with legal interest from judicial demand until paid. The mortgage note and the indebtedness represented thereby are ordered cancelled, conditioned upon plaintiff’s executing the necessary transfer of title to the 1971 Volkswagen to defendant. The demands of defendant as plaintiff in recon-vention are rejected.

It is further ordered that defendant pay all costs.


author: CULPEPPER, Judge.

text:
    Mrs. Elbert H. WITHERWAX, Individually and on behalf of her minor son, Jeffery Paul Istre, Plaintiff and Appellee, v. BOYS VILLAGE, INC., et al., Defendants and Appellants.
    No. 6080.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 1977.
    Rehearing Denied Oct. 11, 1977.

      Raggio, Farrar, Cappel & Chozen by R. W. Farrar, Jr., Lake Charles, for defendant and appellant, U. S. F. & G.
    Hunt, Godwin, Painter & Roddy by David Painter, Lake Charles, for defendant and appellee, Boys’ Village.
    John E. Demoruelle, Kinder, for defendant-appellee, James L. Duhon.
    Henry R. Liles, E. C. Hamilton, Lake Charles, for plaintiff and appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries. Plaintiff’s minor son, Jeffery Paul Istre, a resident of Boys Village, Inc., was walking in a group of 10 to 15 boys along a gravel road. He was struck by a Plymouth automobile owned by James L. Duhon, director of Boys Village, and being driven at the time by Allen Doyle, a 14-year-old resident of Boys Village. Named as defendants are James L. Duhon, Boys Village, Inc. and United States Fidelity & Guaranty Company, the liability insurer of the three vehicles owned by Boys Village. The suit was dismissed as to James L. Duhon. By the time of trial, Jeffery Paul Istre became 18 years of age and was substituted as the party plaintiff. The district judge rendered judgment in the sum of $15,000 in favor of plaintiff and against Boys Village, Inc. and its insurer. These defendants appealed.

The issues on appeal are: (1) Was Allen Doyle, the driver of the automobile, negligent? (2) Was the plaintiff, Jeffery Istre, contributorily negligent? (3) Was Allen Doyle a resident of Boys Village, Inc., or was he under the custody and control of James L. Duhon personally? (4) Was the Plymouth automobile owned by Duhon and driven by Doyle covered under the temporary substitute automobile provisions of the policy issued by United States Fidelity & Guaranty Company to Boys Village? (5) Was the award of damages excessive?

In written reasons, amply supported by the record, the trial judge found the following general facts: On the day in question, ■ 10 or 15 residents of Boys Village went fishing at a pond about three miles from the village. About 3:00 p. m. they started walking back toward the village. They were on a gravel road walking in a northerly direction, some on the east and some on the west side.

Meanwhile, Mr. Duhon, the director of Boys Village, had instructed Allen Doyle, 14 years of age, to drive Duhon’s personal automobile, a Plymouth, and go pick up the boys who were fishing. Doyle was driving in a southerly direction on the gravel road when he saw the boys ahead, walking in a northerly direction.

In written reasons, the district judge found that as Doyle reached the first of the boys walking on the road, he slowed the vehicle “almost to a stop”, and one of the boys reached for a door handle. Doyle motioned for him not to open the door. Then Doyle accelerated, intending to drive on past the boys and turn around and drive back. Doyle did not notice that while he was almost stopped, young Istre had walked in front of the car. As Doyle accelerated, the front of the vehicle struck Istre, breaking his right leg.

DOYLE’S NEGLIGENCE

The trial judge concluded that Doyle was negligent in failing to safely operate the vehicle in the vicinity of this group of boys, who ranged in age from 6 to 16 years, and in coming to almost a complete stop and then suddenly accelerating without looking to see whether any of the boys were in his path. This finding is reasonably supported by the evidence.

ISTRE’S CONTRIBUTORY NEGLIGENCE

The trial judge found Istre free of contributory negligence on the basis that when the automobile came to almost a stop, Istre had a right to assume that Doyle would not start the car forward again without looking to see whether anyone was in his path. This finding is also reasonably supported by the evidence.

DOYLE’S STATUS AT BOYS VILLAGE

The next issue is whether Allen Doyle was in the custodial care of Boys Village, or was he under the care and control of James L. Duhon personally. This dispute arises from the fact that Doyle and two other residents of the Village lived in the apartment occupied by Duhon, instead of in one of the cottages. There was also evidence that Doyle received favored treatment, such as not as being required to take part in work details. Also, some witnesses thought Mr. Duhon had adopted Doyle, but actually he had not.

On the other hand, the evidence shows that Doyle was originally placed in Boys Village by order of the City Judge of Jennings, Louisiana, acting as a juvenile judge, and that Doyle was fed, housed and clothed by the Village. Based on this, and other more detailed evidence, the trial judge concluded that Doyle was under the care and custody of the Village, thus making the Village responsible for his actions. This finding of fact is amply supported by the evidence.

COVERAGE

We next address the insurance coverage issue. The policy issued by United States Fidelity & Guaranty Company to Boys Village, Inc. covered three vehicles, a Ford pickup truck, an Impala stationwagon and a Dodge Custom Sportsman. The trial judge found that at the time of the accident the Ford pickup truck had been inoperable for about a month, the stationwagon was in use by one of the cottage parents, and the Dodge Sportsman was at the movies. Under these circumstances, Mr. Duhon instructed Allen Doyle to take Duhon’s personal automobile, a Plymouth, to go pick up the boys who had been fishing.

The temporary substitute automobile provisions of the policy provide coverage to a non-owned vehicle “while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.” The trial judge found that the Plymouth automobile owned by Mr. Duhon was being used as temporary substitute for the Ford pickup truck which was inoperable. The evidence amply supports this finding of fact. Therefore, there was coverage under defendant insurer’s policy.

DAMAGES

The final issue is whether the award of $15,000 is excessive. The evidence shows that Istre suffered a fracture of the right femur. During his first hospitalization, he was initially in traction with a steel pin inserted in the broken bone. Subsequently, when the bone began to knit, he was placed in a body cast, extending from the nipple line down the entire right leg and half way down the left leg. He was discharged from the hospital after a month, but then after another month had to be readmitted and the cast was replaced. About four months post-injury the second cast was removed and he began to use crutches. Eventually, Istre recovered with an estimated 5% permanent partial disability of the right leg, this disability being based on the slight shortening of the leg and the presence of residual persisting atrophy of the thigh and the calf.

Under the circumstances, the award of $15,000 was within the great discretion of the trial judge as to the amounts of awards in personal injury cases.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.


text:
    Wayne D. JOINER, d/b/a Joiner Real Estate, Plaintiff and Appellee, v. Lavada LOCKART, Defendant and Appellant.
    No. 6087.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 1977.
    Rehearing Denied Oct. 11, 1977.
    Writ Refused Nov. 23, 1977.

      James A. Bolen, Jr., Alexandria, for defendant and appellant.
    W. T. Armitage, Jr., Alexandria, for plaintiff and appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

Plaintiff, a real estate broker, seeks a commission allegedly earned under an exclusive listing agreement signed by defendant. The trial judge awarded plaintiff a commission of $1500. Defendant appealed.

Appellant contends (1) that the listing agreement was terminated before plaintiff procured a purchaser; (2) that the purchaser procured by plaintiff was not financially “able” to buy the property; (3) that plaintiff knew defendant owned only an undivided one-half interest in the property, and hence could not deliver merchantable title; (4) that defendant’s failure and refusal to sign the “Contract To Buy And Sell” relieved her of the obligation to pay the commission; and (5) that the exclusive listing agreement is invalid for vagueness and ambiguity.

The general facts are that on December 31, 1975 defendant signed a contract giving plaintiff the exclusive right to sell defendant’s home and 10 acres of land for a price of $25,000 cash, the exclusive listing being for a period of four months. Pursuant to this agreement, plaintiff proceeded to advertise the property in newspapers, place signs on the property and show it to prospective purchasers.

Defendant testified that on February 9 and again on February 10 she told plaintiff she had changed her mind and did not wish to sell her home. Plaintiff testified that on or about these dates defendant contacted him and was very much upset because someone had advised her the property was worth more than $25,000. However, plaintiff testified that there was no agreement between him and defendant that the listing agreement be terminated. The trial judge dictated into the record reasons for accepting plaintiff’s version of this issue. The evidence is clearly sufficient to support this factual finding by the trial judge.

On February 21, 1976, a Mr. David Arnold, who had seen the “For Sale” signs on the property, contacted plaintiff and signed a contract to buy for $25,000 cash, a $500 deposit being made by Arnold at the time he signed. Within the next day or two, plaintiff took the contract to buy and sell to defendant for her signature, but she refused to sign. The only reason given by defendant was that she had changed her mind and did not wish to sell at any price.

Our law is settled that a real estate broker earns his commission when he procures a purchaser ready, willing and able to buy on the terms stipulated by the seller. Eanes v. McKnight, 262 La. 915, 265 So.2d 220 (1972). Applying this rule to the present case, plaintiff earned his commission.

As to defendant’s contention that the listing agreement was terminated, the trial judge accepted the testimony of plaintiff that there was no termination. As stated above, this factual conclusion is amply supported by the evidence.

Defendant’s contention that plaintiff did not procure a buyer “able” to purchase the property is based on the argument that the listing agreement required payment to be $25,000 in cash. Defendant argues that since the evidence shows Arnold had only $2,891 in his savings account, he was obviously going to have to borrow additional funds and could not pay in cash. This argument has no merit. The evidence shows that although Arnold did not have $25,000 in cash, he could have borrowed this sum from a bank or other lending institution to pay defendant in cash. He had a job as a teacher and coach, he owned 87 acres which he could have used as security for part of the loan and, of course, he could have mortgaged the subject property.

Defendant’s next contention is that plaintiff knew defendant owned only a one-half interest in the property, and therefore plaintiff had knowledge that defendant’s title was not marketable. The evidence shows that plaintiff knew the property was owned by the community which existed between defendant and her husband, who died in 1971, leaving three or four children. Plaintiff testified he knew the children owned a one-half interest. However, plaintiff also testified that defendant told him the children had agreed to allow her to sell the property and retain their portion of the proceeds. Acting on this assumption, plaintiff proceeded to secure a purchaser.

In Strahan v. Weiland, 216 So.2d 169 (La.App., 1st Cir. 1968), the court held that a real estate broker is entitled to assume that the person representing himself to be the owner either owns the property in its entirety or is authorized to represent the fee owners. In the present case, the defendant actually told the plaintiff she was authorized by her children to negotiate for a sale of their interests. She even went to see an attorney to have the necessary papers drawn for the children to sell their interests. When she finally refused to sell, she did not do so on the basis that she could not secure her children’s consent. There is no evidence to show the children refused their consent. Under the rule of the Stra-han case, it is clear that this defense has no merit.

There is also no merit to the argument that defendant’s failure to sign the “Contract To Buy And To Sell” relieves her of paying plaintiff’s commission. The purpose of the introduction of the contract signed by Arnold alone was to show that plaintiff had procured a buyer ready, willing and able to purchase. On this showing, plaintiff earned his commission, regardless of whether defendant signed the contract to sell.

Defendant’s objection to the exclusive listing agreement is that the Commission is stated to be 6% on “the gross amount of any deal (agreement to sell or exchange).” Defendant argues that since she did not sign the “Contract To Buy And Sell”, there was never any “deal” and therefore no commission is owed. This argument has no merit. For the reasons stated above, plaintiff earned his commission when he procured a buyer ready, willing and able to buy, regardless of whether the defendant refused to sell.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant appellant.

AFFIRMED.


author: FORET, Judge.

text:
    ALL STATE CREDIT PLAN, INC., Plaintiff-Appellant, v. Lovelace THEALL, Jr., et al., Defendants-Appellees.
    No. 6095.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 1977.
    Rehearing Denied Oct. 11, 1977.
    Writ Refused Dec. 2, 1977.
    Gary E. Theall, Abbeville, for plaintiff-appellant.
    Broussard, Broussard & Moresi by Marcus A. Broussard, Jr., Abbeville, for defendants-appellees.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

This is a suspensive appeal from the trial court’s granting of a summary judgment in which the court held that C. J. Dronet Construction Company, Inc., defendant-appel-lee, was the owner of certain property seized under a writ of seizure and sale, free and clear of the mortgage claim of the seizing creditor, All State Credit Plan, Inc. The trial court revoked the order of seizure and sale, and granted a permanent injunction.

In the Succession of Louis Ivy Poirer, Probate Docket No. 7761 of the Fifteenth Judicial District Court, in and for the Parish of Vermilion, Curney J. Dronet, defendant-appellee, was duly appointed and qualified as administrator. On July 14,1976, the administrator filed a “Petition for the Private Sale of Immovable Property.” An order of the Fifteenth Judicial District Court was issued on that same day wherein it was ordered that notice of the proposed private sale be published in the manner and form provided by law. There was full compliance with the requirements of law. On August 31, 1976, a private sale of the property was executed by which C. J. Dronet Construction Company, Inc., defendant-ap-pellee, became the owner of the property.

On September 15, 1976, plaintiff-appellant filed a petition for executory process against Lovelace Theall, Jr. and Judith Bouillion, mortgagors, Curney J. Dronet, administrator, and C. J. Dronet Construction Company, Inc. In the petition it was alleged that petitioner was the holder in due course of a note dated August 23,1976, for the amount of $5,315.11 payable to bearer, and made by Theall and Bouillion; that the note was paraphed “Ne Varietur” for identification with an act of mortgage dated the same day and executed therewith; and that by cash deed dated August 31, 1976, which deed was recorded in the conveyance records of Vermilion Parish, Cur-ney J. Dronet, as administrator of the Succession of Louis Ivy Poirer, sold the property in question to C. J. Dronet Construction Company, Inc.

To the above petition for executory process, Curney J. Dronet, as administrator, and C. J. Dronet Construction Company, Inc. filed an answer alleging that Curney J. Dronet was a mortgage creditor of the decedent, Louis Ivy Poirer, and his wife, Judith Bouillion Poirer, which mortgage was originally executed to the United States of America (Federal Housing Administration) under date of May 12,1972, and was recorded in the mortgage records of Vermilion Parish; that, by authentic act, the above mortgage was assigned to Dronet; and that, after full compliance with all of the requisites and formalities required by law, on August 31, 1976, C. J. Dronet Construction Company, Inc. acquired the property by act of private sale executed by C. J. Dronet, Administrator. To the answer were attached and annexed certified copies of instruments corroborating those allegations; and that answer included a prayer for injunctive relief and for summary judgment.

The sustaining of the summary judgment and the granting of the permanent injunction were properly made by the trial court. A motion for a summary judgment should not be granted unless there exists no genuine issue of material fact and mover is entitled to judgment as a matter of law. C.C.P. Article 966; Scanlan v. Haristy, 316 So.2d 841 (La.App. 3 Cir. 1975); cases too numerous to cite.

In this case there was no issue of material fact. The motion was supported by certified copies of the petition for private sale of immovable property with appurtenant orders, the notice of application and the petition to pay mortgage debt, certificate of the clerk showing no opposition, and a duplicate copy of the authentic act by which the mortgage of decedent, Louis Ivy Poirer, and Judith Bouillion Poirer to the United States of America (Federal Housing Administration) was assigned to Curney J. Dronet. Plaintiff-appellant, in its petition for execu-tory process, admitted that the property on which it had a mortgage was sold at private sale to C. J. Dronet Construction Company, Inc. It filed no documents — affidavits, depositions, answers to interrogatories, etc.— by which it denied that which was contained in the supporting documents for the summary judgment.

The law provided plaintiff-appellant with many opportunities to delay, hinder, or impede the private sale or to seek the proceeds therefrom. According to C.C.P. Articles 3282 and 3283, a creditor may file an opposition to a private sale of the property of a decedent within seven days of the date of last publication of the notice of the proposed sale. The creditor also may, at any time prior to the homologation of the administrator’s account, file an opposition thereto. C.C.P. Article 3336. After the sale has taken place, a creditor may file pleadings by which he seeks rescission or annulment of the sale. Plaintiff-appellant could have easily done so by converting the executory proceeding to an ordinary proceeding-and then alleging grounds for rescission or annulment of the sale. Instead, plaintiff-appellant chose to institute and persist in an executory proceeding.

Only an issue of law — does a private sale in a succession proceeding clear all inferior mortgages and liens and thereby relegate the inferior mortgages and lien-holders to the proceeds of the sale — remained. In ruling that the sale of the property to C. J. Dronet Construction Company, Inc. was free and clear of the mortgage of plaintiff-appellant, the trial court followed the jurisprudence of this state relative to the resolution of that issue.

Where a probate sale is properly and regularly conducted, the effect is to clear the property of mortgages, judicial or otherwise, and to refer the holders of those mortgages to the proceeds of the sale. Lafon’s Ex’rs v. Phillips, 2 Mart., N.S. 225; De Ende v. Moore, 2 Mart., N.S. 336; Joyce v. Poydras de la Lande, 6 La. 277; French v. Prieur, 6 Rob. 299; Lewis v. Labauve, 13 La.Ann. 382. C.C.P. Article 2673, Official Revision. Comments. Succession of Rolland, 8 So.2d 546, 549 (Orl.La.App.1942).

We notice that the first paragraph of the trial court judgment reads as follows:

“It is ordered, adjudged and decreed that the Motion for Summary Judgment filed by relators, Curney J. Dronet and C. J. Dronet Construction Company, Inc., be and the same is hereby sustained, and the preliminary injunction heretofore issued is hereby made permanent, without bond, and the order of seizure and sale issued herein on September 10, 1976, be and the same is hereby revoked, and C. J. Dronet Construction Company, Inc. is recognized to be the owner of the property therein seized, free and clear of the mortgage and claim of respondent, All State Credit Plan, Inc.” (Emphasis added.)

We amend the above quoted decree portion of the trial court judgment to read as follows, deleting that portion of the original decree which is underscored above:

“It is ordered, adjudged and decreed that the Motion for Summary Judgment filed by relators, Curney J. Dronet and C. J. Dronet Construction Company, Inc., be and the same is hereby sustained, and the preliminary injunction heretofore issued is hereby made permanent, without bond, and the order of seizure and sale issued herein on September 10, 1976, be and the same is hereby revoked.”

By amending the trial court judgment as above, we are still recognizing the fact that the sale to C. J. Dronet Construction Company, Inc. is free and clear of the mortgage and claim of All State Credit Plan, Inc. Our reason for amending the trial court judgment is to delete that portion of the trial court judgment which recognizes C. J. Dronet Construction Company, Inc. “to be the owner of the property therein seized.” In this litigation, title to the property involved is not at issue, and we do not consider it appropriate to declare the ownership of the property to be vested in C. J. Dronet Construction Company, Inc. We are merely recognizing the fact that the private sale of succession property to C. J. Dronet Construction Company, Inc. was accomplished in accordance with law, and that the said sale was free and clear of the mortgage and claim of plaintiff, All State Credit Plan, Inc.

As amended above, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiff-appellant, All State Credit Plan, Inc.

AMENDED AND AFFIRMED.