text:
    Raymond A. GRAF v. McCRORY CORPORATION.
    No. 9822.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Edward K. Pinner, Sr., New Orleans, for plaintiff-appellee.
    Nelson, Nelson & Lombard, Ltd., New Orleans, Richard G. Vinet, Gretna, for defendant-appellant.
    Before REDMANN, LEMMON and GARRISON, JJ.
   LEMMON, Judge.

This is an action to recover damages sustained by plaintiff arising out of his arrest and prosecution instigated by defendant’s agents. After a trial on the merits judgment was rendered in favor of plaintiff, and defendant appealed.

Plaintiff, an employee of an optical store on Canal Street in New Orleans, related the following facts: On January 20,1976 he entered McCrory’s store during his lunch hour, wearing a black vinyl jacket he had purchased for $19.03 in the same store about two weeks earlier. He bought two small toys for his children, and after eating a sandwich at the snack bar he immediately left the store and went across the street to have a cup of coffee at Kress’ store, where he was well known because of having worked in the area for over 20 years. A security guard from McCrory’s, wearing plain clothes, approached him in Kress’, displayed his identification and requested him to return to McCrory’s, which they did. In a private interrogation room at McCrory’s the guard accused him of stealing the jacket. He requested an opportunity to call his wife or employer to verify his ownership of the jacket, but the guard refused and called the police. He was handcuffed by the police, led through the store into the police car, taken to central lockup, charged with theft and possession of stolen goods, and jailed until his wife was able to obtain the money to post bond. After pleading not guilty, he went to court ten times before being tried and found not guilty. Each time that he appeared in court he brought five or six witnesses, and after the first few appearances, he was offered a proposition whereby the charges would be dropped if he executed a release of McCrory’s liability. When he refused to execute a release, the prosecution was maintained until he was finally tried. He incurred attorney’s fees of $500.00 in connection with the arrest and prosecution.

Roland Parker, the security guard whose testimony was apparently rejected by the trial court, stated that he noticed plaintiff (whom he had never seen before) enter the store without a jacket and later saw him try on the jacket and leave without paying for it. (Plaintiff’s version was that he did not walk within 40 feet of the jacket rack.) The guard denied plaintiff told him about purchasing the jacket earlier or requested an opportunity to call his wife or his employer until after the police arrived.

Plaintiff’s employer and another optician testified that plaintiff was wearing the jacket during the morning on the day that he was arrested. Several other witnesses testified that they had seen plaintiff wearing the jacket during the two weeks prior to his arrest. All verified plaintiff’s good reputation of long standing in the Canal Street optical business.

The trial court accepted plaintiff’s version that he had worn the jacket into the store and had not gone near the jacket rack on the day of his arrest. This version was supported by a clear preponderance of the evidence.

One might understand that if plaintiff had been seen taking the jacket from the rack, the security guard could with some reason mistake his actions. But one cannot understand the guard’s refusal of plaintiff’s suggestion (as he testified and the trial judge apparently believed) to call his wife or his employer to verify that he had worn the jacket to work that morning. Thus the initial calling of the city police was unjustifiable injury to plaintiff. Moreover, there was uncontradicted evidence that the prosecution was maintained, in spite of all the evidence of which defendant was aware, for the purpose of forcing plaintiff to release defendant from any civil liability. Prosecution under these circumstances must be classified as unreasonable and patently malicious.

Accordingly, defendant and its agent acted in an unreasonable manner, and this conduct constitutes fault under C.C. art. 2315 which caused damage to plaintiff.

The trial court awarded $5,500.00, which apparently included reimbursement of the $500.00 plaintiff incurred in attorney’s fees to defend the criminal prosecution.

At the time of his arrest plaintiff was a 37-year old father of three who was well respected in the optical business and who had never been arrested before or even cited for a traffic violation. Being handcuffed and led by policemen through a store where he was well known, without being afforded at his request an opportunity to prove his ownership, caused him extreme humiliation. Being arrested and jailed caused him severe concern over the effect on his then pregnant wife and over the probability of losing his job with a new employer. Being forced to stand trial (although the excessive number of appearances were due to the judge’s illness), after watching others accused of shoplifting, being tried and sentenced to jail on the testimony of a security guard, caused him further extreme concern and worry. Being forced to borrow money to pay attorney’s fees in an unreasonable criminal prosecution caused additional embarrassment. In the light of the considerations we conclude the amount awarded by the trial court was within its much discretion accorded by C.C. art. 1934(3).

AFFIRMED.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Cheryl Rodriguez TUFARO, wife of/and Paul Tufaro v. METHODIST HOSPITAL, INC., et al.
    No. 9858.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Edward S. Bopp, Ronald A. Welcker, Arabi, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, David S. Kelly, William S. Penick, New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Appellant Cheryl Rodriguez Tufaro, wife of Paul Tufaro, contracted malaria from blood she received through transfusion which undergoing surgery at Methodist Hospital in New Orleans. She and her husband filed suit for damages against Blood Services of Texas, Inc., doing business as Blood Services of New Orleans (Blood Services), and Dr. A. T. Hunt, its medical director, alleging both defendants were liable because the blood bank staff was negligent in screening prospective donors from whom the infected blood given to plaintiff was collected. Plaintiffs have appealed the judgment dismissing their suit.

Defendants admit plaintiff’s malaria was transfusion-induced as she avers and concede the four units she received were furnished by Blood Services. The issue before us is whether either defendant has breached a duty of care owed to Mrs. Tufaro as a donee in failing to detect the malaria strain in the whole blood she received.

From the medical evidence we learn that the occurrence of malaria in the United States is rare while instances of transfusion-induced malaria, miniscule. The statistics demonstrate the accuracy of this generalization. Dr. Robert Treuting, an expert clinical and anatomical pathologist testifying on behalf of plaintiffs, stated that approximately 10 million blood transfusions are administered in this country annually and the literature to which all counsel allude reflects that only 37 cases of transfusion-induced malaria were reported in this country between 1958 and 1972.

Although the disease is rare, its potential presence in blood concerns blood bank personnel who include questions in the screening interview that would eliminate any possible carrier as a donor. The questions routinely asked to detect the malaria potential are included in a standardized inquiry concerning illnesses and relevant medical history made of all donors to determine the eligibility of each to donate. The interview procedure and other techniques employed in operating a blood bank as a rule are formulated according to guidelines established by two national organizations that license centers which meet the standards they set.

The American Association of Blood Banks (A.A.B.B.) is a voluntary association of hospital and community blood banks throughout the United States that additionally has affiliate members in other countries. The National Institute of Health (N.I.H.), inter alia, establishes standards for centers that collect blood distributed in interstate commerce. Defendant Blood Services was licensed by both.

The medical experts agree that in June 1972, when the blood given to Mrs. Tufaro was collected, no blood bank in the country had a clinical test available to rule out the presence of the malaria infection in donated blood. The donor interview was the only available method to screen out malaria carriers.

A.A.B.B. guidelines established the following criteria for technicians to decide the acceptability or nonacceptability of the donor: (1) Anyone with a history of malaria was rejected. (2) A United States citizen who visited a country where malaria was prevalent — an endemic country — was acceptable six months after his return to the United States provided he had not taken antimalarial drugs. (3) Any person taking antimalarial drugs was excluded for three years after having used the medication. (4) All military personnel who served in an endemic area were excluded for three years after their return.

Defense expert Dr. Ralph Hartwell, a past president of the A.A.B.B. and a practicing pathologist in the New Orleans area who has a subspecialty in blood banking, was most impressive. Based on his review of the donor interview cards utilized in collecting the blood of the four donors from whom the questionable units were taken and the procedure manual utilized by Blood Services staff at the time, Dr. Hartwell stated the blood bank staff operated within the guidelines established by A.A.B.B. This opinion, of course, is based on the assumption that the screening staff did follow the established procedure.

Unfortunately, the members of the staff at Blood Services on duty when the blood at issue was collected could not be located at the time of the trial. This particular blood bank discontinued operations in 1974 because it was requisitioning more blood from other centers that it was furnishing. In short it became a deficit operation. Defense counsel explained what efforts were made to contact the staff and we are satisfied due diligence was used. Further, it is unlikely that the people involved in the screening would remember the individual interviews because so many were routinely conducted and five years had elapsed between the collection and the trial of this case.

Plaintiffs were able to locate two of the four donors, who testified on their behalf. They were commercial donors, having been paid $5 per unit, and their testimony was unimpressive. Independent of any finding of the trial court, we note from reading the record that the selective memory displayed by both raises serious doubts as to their credibility. One was a drifter with a criminal conviction who moved from job to job; the other also failed to display job stability although he had no criminal record. Both testified they were interviewed by a lady at the blood bank; however, it was established that Ted Fontenot, a man, handled the screening interview in both cases. Both testified they were in the armed services of the United States and had been stationed in Vietnam (an endemic country) within three years of the donation and both assert this information was given to the lady interviewer. If this were true, it would establish the negligence of Blood Services personnel in screening. However, the trial court rejected this evidence on a credibility basis, stating in part in written reasons for judgment:

“Admittedly, the testimony of the two blood donors substantiates in part the plaintiffs’ contention that Blood Services failed to obtain a complete and accurate history from the donors prior to taking their blood for purposes of determining whether or not they were carriers of malaria and would subject the defendants, in the absence of further evidence, to an action in damages.
“Nevertheless, a review of the pleadings, testimony, and an evaluation of the credibility of the witnesses and litigants, including the two donors, when considered in its entirety, will not support the plaintiffs’ claim, nor lead to the conclusion that evidence preponderates in favor of the plaintiffs.
“In the Court’s opinion, the evidence preponderates in favor of the defendants’ position that the actions, procedures and practices of the doctor and Blood Services in screening the four donors for malaria complied with the existing standards and practices that prevailed in 1972 among blood banks and the medical profession in this community.”

Our review of this finding is limited to a determination of whether the record supports this conclusion. Aubert v. Charity Hospital of Louisiana, 363 So.2d 1223 (La.App. 4th Cir. 1978). Plaintiffs, to prevail, would have had to establish that the donated blood was collected using methods unacceptable to the medical community that did not comply with local standards of competent practice at the time the blood was donated. Or they would have had to prove that Blood Services staff, having an approved procedure available, negligently failed to conduct the screening as directed.

Because a blood transfusion is a medical procedure, the use of which subjects the recipient to certain risks, the standard of care that must be utilized in collecting and transfusing blood is logically the same as that which applies to the actions of physicians and surgeons. In Louisiana the practice actions are controlled by the “locality rule” as expressed in R.S. 9:2794(A)(1):

“In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
“(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists practicing in the same community or locality to that in which the defendant practices; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.”

Defendants have proved beyond doubt that Blood Services utilized donor screening techniques routinely in use in blood banks throughout the country in June 1972 and that the procedure employed by it for eliminating potential malaria carriers was the only one available. The experts established that contraction of transfusion-induced malaria is one of the remote risks that the recipient of donated blood must undergo to receive the benefits derived from a blood transfusion.

Plaintiffs have failed to prove that risk was increased substantially by the negligence of Blood Services screening staff and the record fully supports this conclusion of the trial court.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

      . Several other parties were named as defendants in the original petition but were dismissed later by consent judgment.

      . Malaria is no longer indigenous to the United States. In 1970 of the 4,000 cases reported, only 16 were contracted in this country and the rest were traceable to foreign sources.


author: SCHOTT, Judge.

text:
    William D. AYMOND v. Edmund C. ROSE, III and Allstate Insurance Company.
    No. 9871.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Law Offices of Steven R. Plotkin, New Orleans, Olden C. Toups, Jr., Harvey, for plaintiff-appellant.
    Drury, Lozes & Curry, Robert H. Wood', Jr. and Steven M. Lozes, New Orleans, for defendants-appellees.

      Before GULOTTA, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

This case arose out of an automobile accident which occurred on May 10, 1977, in which plaintiff’s taxi cab while stopped on Veterans Boulevard in Jefferson Parish because of traffic ahead of him was struck from the rear by a vehicle operated by defendant Spencer Harris. The Harris vehicle had come to a stop prior to the accident but it was struck from the rear by an automobile operated by defendant Edmund C. Rose, III, and insured by Allstate and was propelled into plaintiff’s vehicle.

The case was tried to a jury with the result that plaintiff’s suit against Harris was dismissed on a directed verdict, and the jury returned a general verdict in favor of plaintiff and against Rose and Allstate for $400. From the judgment against Rose and Allstate plaintiff has appealed, but the judgment in Harris’ favor is final.

The only issue is the quantum of damages awarded to plaintiff. It was stipulated at the trial that any judgment in plaintiff’s favor would include the sum of $262.48 which included the medical bill of Dr. David W. Aiken and $24.48 for the cost of a cervical collar, so that the award for general damages amounted to $137.52. Plaintiff bases his claim for an increase on three assignments of error.

Plaintiff’s first assignment is that the court erred in its charge to the jury concerning the law on aggravation of a pre-ex-isting condition, contending that the charge given was confusing and should have consisted of verbatim charges which he requested. Plaintiff’s second assignment also concerns jury charges and specifically is based on the failure of the court to charge the jury that the extent of physical damage to the automobile has no bearing on the seriousness of the injuries.

Plaintiff’s specifications of error with respect to the jury charges are properly before us since timely objection was made to the court’s charges pursuant to LSA-C.C.P. Art. 1793. However, we find no error in the court’s disposition of plaintiff’s requested charges or in the charge as given to the jury. As to the first specification, the court gave the following charge:

“. . . Under the Louisiana Law, one who causes harm to another takes that person as he finds him. Thus, if you find a proven accident has aggravated a pre-existent condition of, that aggravation is compensable as money damages.”

While we agree with plaintiff that the insertion of the word “of” seems to confuse the charge it is quite clear that the jury was told that aggravation of a pre-ex-isting injury is compensable and the tort feasor is not entitled to any discount because the plaintiff in this particular case might be more vulnerable than the average victim of a tort. In addition to the instruction quoted the jury was also instructed to award compensatory damages for any pain and suffering resulting from the accident. This was sufficient to cover the ideas which plaintiff wanted expressed in his requested charges Nos. 13 and 14.

Furthermore, as they were worded plaintiff’s requested instructions were somewhat over specific and suggestive of a result so that the trial judge’s instruction was more proper.

Plaintiff bases his second assignment of error on Vaughn v. Manchester Ins. & Indemnity Co., 296 So.2d 871 (La.App. 4th Cir. 1974); Velasquez v. Richard, 243 So.2d 308 (La.App. 4th Cir. 1971); Harney v. Kountz, 218 So.2d 913 (La.App. 4th Cir. 1969) and Seegers v. State Farm Mutual Automobile Ins. Co., 188 So.2d 166 (La.App. 2nd Cir. 1966), in which the rule was recognized that a minimal impact or force on the automobile of the plaintiff is not a relevant factor for consideration in making an award where the evidence otherwise supports an award in favor of plaintiff for damages for personal injury. From these cases and this principle plaintiff contends that the trial judge erred in not instructing the jury that the minimal amount of damage should not prevent the jury from making an appropriate award for injuries plaintiff sustained in the accident.

In the Vaughn and Velasquez eases each trial judge had given as his reason for making a minimal award the fact that there was a slight physical impact on the automobile and little damage. Finding in each case that there was ample evidence of injury, we held that it was error for the court to withhold a reasonable award simply because the impact was slight. In the Harney and Seegers cases, the courts invoked this rule in response to arguments by appellants that the judgments were excessive just because minimal impacts on the vehicles had occurred. However, these cases do not stand for the proposition that a plaintiff is entitled to a positive instruction to the jury in effect to disregard the minimal impact in framing an award because this would surely have the effect of suggesting to the jury that some substantial award was in order irrespective of the medical evidence produced at the trial. We have concluded that the trial judge properly refused to give this instruction under the circumstances.

The third and fourth assignments of error are that the award of only $400 was the result of confusion in the jury produced by the trial judge’s instructions with respect to the special damages and that the amount of the award was so inadequate as to constitute an abuse of discretion on the part of the jury.

With respect to the first, at the time the stipulation of special damages was made in the presence of the jury the trial court instructed the jury as follows:

“. . . What that [stipulation] means is if you find that Mr. Aymond is entitled to recover, if you would fix that amount in addition to what other amounts you might fix for the pain and suffering you may find as a result of the accident.”

This instruction was supplemented by the instructions given at the conclusion of the trial in which the jury was instructed to return a verdict to include compensatory damages for pain and suffering. The case was submitted to the jury on interrogatories the third of which read:

“What amount do you award the plaintiff, William D. Aymond, for damages as a result of the accident?”

The trial judge in discussing the form of interrogatories with the jury stated after reading question No. 3 as follows:

“. . You will remember we have a stipulation of what amounts $262.48. Whatever verdict you arrived at, that figure into whatever verdict arrived, if you reach that point, if you find Mr. Aymond is entitled to an award for pain and suffering in this matter, at that figure is $262.48 . . . ”

Reading this statement out of context, we agree with plaintiff that the jury could easily be confused. In the first place, the statement was made by the judge after arguments had been made by plaintiff’s counsel suggesting an award of $4,000 and after the trial judge cautioned the jury that plaintiff’s suggested figure was not evidence but “merely the attorney’s idea as to what damages are due to plaintiff.” He made it quite clear to the jury that they should bring in an award for general damages which was appropriate for the pain and suffering which plaintiff proved resulted from the accident. Furthermore, plaintiff made no objection to the portion of the trial judge’s instructions in which the third interrogatory was discussed, so that his objection in that respect was waived. Finally, the very fact that the jury awarded not $262.48 but rather $400 demonstrates that they were aware of their duty to include whatever general damages they thought were appropriate.

In support of his argument that the amount of the award constitutes an abuse of discretion plaintiff relies on the Vaughn and Velasquez cases primarily. Both of these cases came before the Supreme Court decision in Coco v. Winston Industries, Inc., 341 So.2d 332 (1977), and it may very well be that these cases are inconsistent with the Coco case. In Coco the court stated that an appellate court can amend an award only if the record shows an abuse of discretion on the part of the trial court and then the award can be disturbed only to the extent of lowering it or raising it to the highest or lowest point which is reasonably within the discretion afforded that court. Applying this principle to the instant case, we have no basis for disturbing the award.

Plaintiff continued to drive his cab almost without limitation after the accident. He saw Dr. Aiken for the first time a week after the accident and his complaints were basically subjective. He had a history of chronically and repeatedly dislocating his left shoulder, and X-ray studies revealed the presence of degenerative arthritic disease in his shoulder and cervical spine. By June 21 plaintiff had no residual symptoms whatsoever and on July 21 was discharged. It was brought out that he saw Dr. Aiken on the advice of the attorney who represented him previous to his present counsel.

The evidence of plaintiff’s injuries consisted of his own testimony. It is apparent that the jury was not at all impressed with plaintiff and there is no basis for us to substitute our own judgment for the jury’s to the effect that plaintiff’s was a minimal injury for which a minimal award was appropriate. The judgment is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Melvin ANCRUM v. EDWARD LEVY METALS, INC., John Doe, Richard Roe, Continental Insurance Company, CNA Insurance Company, Boston Old Colony Insurance Company.
    No. 9885.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Francis G. Weller of Deutsch, Kerrigan & Stiles, New Orleans, for Edward Levy Metals, Inc. and Continental Cas. Co., Defendants-Appellees.
    W. Glenn Burns, Murray, Murray, Ellis, Braden & Landry, New Orleans, for Melvin Ancrum, plaintiff-appellant.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This is an appeal from the dismissal of a suit by summary judgment.

The plaintiff, Melvin Ancrum, was injured while in the course and scope of his employment with a labor service engaged by Edward Levy Metals, Inc. to assist in building and renovation work. Suit was brought against Levy, an alleged executive officer of Levy, and several insurers. The trial judge dismissed the suit as to all parties in three summary judgments dated January 13, January 17, and February 3, 1978.

Plaintiff appealed only the January 17th judgment, rendered in favor of Levy and Continental Casualty Company as its insurer, and the February 3rd judgment in favor of Continental Casualty Company as the insurer of Karl Smith, an alleged executive officer of Levy. Since the appeal as to the January 17th judgment has been dismissed by this court, only the appeal of the February 3rd judgment remains for consideration. The trial judge maintained that motion for summary judgment finding there was no genuine issue of material fact as to the relationship between Karl Smith and Levy metals and that Karl Smith was not an executive officer of said company. This is the only issue before us on this appeal.

Disposal of a case by summary judgment is proper when the pleadings, depositions and affidavits on file show that there is no genuine issue as to any material fact and that the mover is entitled to judgment as a matter of law. Code of Civil Procedure Article 966. As appellant points out, the issue of credibility is not properly before the court on a motion for summary judgment since the motion should not be used as a substitute for a trial on the merits. See Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir. 1977); Parker v. South Louisiana Contractors, 340 So.2d 322 (La.App. 1st Cir. 1976). In this case, however, we agree with the trial judge’s determination that no genuine issue of material fact is present in the record.

The test for determining executive office status is multi-faceted. In Hadrick v. Diaz, 302 So.2d 345 (La.App. 1st Cir. 1974), the considerations are listed as follows:

“[10] In determining the issue before us, our own courts have considered the following circumstances relevant: (1) Whether the employee’s position was created by corporate charter, Thibodeaux, above; (2) Whether the employee was formally elected or designated to his office or position by the Board of Directors, the officers or stockholders, Thibodeaux, above; (3) Did the employee have authority, discretion and managerial responsibility covering the divergent affairs of the corporation, Thibodeaux, above; (4) Did the employee have duties or authority outside his particular department, Thibo-deaux, above; Berry; (5) Was the employee involved in shaping company policy, Thibodeaux, above; (6) Did the employee possess authority to alter contract terms or conditions or to change specified company procedure, Upham, above; (7) Whether the employee had several department heads under his supervision, Berry, above; (8) Whether the employee had a large number of employees under his direction and control, and (9) Did the employee have authority to hire and fire other employees, Berry, above? In Guillory v. Aetna Insurance Company, 415 F.2d 650 (Fifth Circuit), the court also considered whether the employee maintained a close connection with the corporate officers and board of directors and whether the employee was empowered to write company checks.”

Our review of the record discloses the fact that Karl Smith meets none of the qualifications relevant to executive officer status.

The evidence included the affidavit of the Vice-President of Levy Metals specifically stating that Karl Smith has none of the duties or responsibilities of an executive officer. This affidavit states each consideration listed above and negates them point by point. The deposition of Karl Smith and the plaintiff do not contradict the affidavit on any point except for the fact that plaintiff states Smith had the right to hire and fire on the job. Both Smith and the Vice-President deny this, and in view of the other evidence, we do not feel that any material issue of fact is present.

Smith’s position was, entitled “outside supervisor”. He worked for a weekly salary and supervised no more than two jobs at any one time. He reported directly to the company’s operation manager who had assigned him to the job originally. He had no voice in the formation of company and had no managerial responsibility for either the general affairs of the company nor the day to day management of the company’s business. In light of these facts, we feel that no credibility determination was necessary in reaching the decision that the trial judge did. Even assuming that Smith had the power to hire and fire other employees, this standing alone would not be enough under the test above to create executive officer status. Since no material fact is at issue, appellee is entitled to judgment as a matter of law. The motion for summary judgment was properly maintained.

For the reasons assigned, the judgment is affirmed.

AFFIRMED.

      . The appeal was dismissed pursuant to a motion by counsel for Levy and Continental, agreed to by counsel for appellant, on the grounds that appellant had acquiesced in the judgment dismissing suit as to these parties in the trial court.


text:
    Jessie T. McMAHAN v. EVERYDAY PLUMBING COMPANY and Terrance Betts.
    No. 9894.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Hackman & Lewis, Gordon Hackman, R. 0. Lewis, Boutte, for plaintiff-appellant.
    Joseph S. Russo, Jefferson, for Terrance Betts, defendant-appellee.
    Murphy & Simon, David T. Bowman, Néw Orleans, for Everyday Plumbing Co. and Terrance Betts, defendants-appellees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Jessie T. McMahan, has appealed a judgment against her awarding Terrance H. Betts $500 for personal injuries and also dismissing her main demand without prejudice against Betts when she failed to appear in court on the morning the trial was scheduled. Betts answered the appeal seeking an increase in quantum.

Appellant first complains the trial court erred in denying a motion for continuance urged on her behalf on the day of trial by the law partner of the attorney who filed the suit for her,. The bases of the motion for a continuance were two-fold: (1) that the reconvenor either failed to join or failed to cite and serve mover’s liability insurer, Louisiana Farm Bureau Insurance Company, an indispensable party; and (2) that during the argument mover orally amended the motion to urge the illness of the plaintiff as an additional ground for continuance.

The motion for continuance directed to the issue of the lack of an indispensable party is so vaguely drafted that the court is unable to specifically determine if the complaint is against the failure to join or the failure to effect service of citation on an indispensable party. This condition in either respect is without merit. A reading of the reconventional demand discloses that mover’s insurer, Louisiana Farm Bureau Insurance Company, is a party defendant in the reconventional demand. Testimony adduced during the hearing on the motion and the records of the Civil Sheriff for the Parish of Orleans establish that service of the petition and citation on the insurer were effected through the Secretary of State on July 25,1977. There is prima facie presumption that the service was validly made, which was not rebutted. Lastly, no authority either statutory or jurisprudential has been cited to this court that decrees that a liability insurance carrier is an indispensable party in a tort action brought against an insured.

With reference to the second basis of the motion for continuance — the illness of the plaintiff — we quote the following colloquy between the court and counsel:

“THE COURT
Is the plaintiff sick?
MR. LEWIS
I believe the plaintiff is sick, I don’t
have personal knowledge of him myself.
I can’t say I have a personal knowledge. THE COURT
You have no certificate from a doctor? MR. LEWIS
No sir, there are none here present.”

C.C.P. art. 1601 provides a continuance may be granted for good cause and C.C.P. art. 1672 permits the trial court to dismiss a suit if plaintiff fails to appear on the date of trial. In this ease the attorney seeking the continuance could not tell the court from his own knowledge why the plaintiff did not appear. Simply stating that he thought the plaintiff was sick was not enough. In this area it is recognized the trial judge is vested with wide discretion and his ruling will not be disturbed unless there is a clear showing he abused this discretion. The record amply supports the trial court’s refusal to grant appellant’s motion for continuance and its dismissal of plaintiff’s motion without prejudice is justified. Sauce v. Bussell, 298 So.2d 832 (La.1974).

The trial court did permit defendant Betts to go forward with his reconventional demand. The negligence issue hinged on which driver failed to stop for a red light at the intersection. Based on the testimony of defendant and one witness, the trial court concluded Betts entered the intersection on a green light and the collision occurred when plaintiff, Jessie McMahan, who failed to stop in obedience to the red signal committed actionable negligence. Our review of the record discloses no manifest error in this conclusion.

As to quantum, we also affirm. Prom Betts’ testimony, it does not appear he sustained injuries of any consequence. No doctor appeared to testify on his behalf, and reeonvenor submitted his injury claim on the Mercy Hospital emergency room records and his own testimony. His own statements indicate he suffered minor discomfort at the most.

Reconvenor answer the appeal seeking in addition to an increase in the award of general damages, legal interest from the date of judicial demand (which the trial court apparently inadvertently omitted), medical expenses and legal costs. Under C.C.P. art. 1921, reconvenor is entitled to legal interest of 7% from the date of judicial demand until paid and to this extent the judgment of the trial court is amended.

In connection with the medical expenses, reconvenor testified that he did not pay or owe these charges and had no knowledge by whom they were paid. His attorney’s statement in answer to the court’s inquiry does not constitute valid evidence to support the amount of the charges or sustain that they were rendered in connection with the treatment of the injuries. The trial court properly refused to admit these medical bills and permitted counsel to tender them as a proffer.

For the reasons assigned the judgment appealed from is amended to decree that reconvenor, Terrance H. Betts, is awarded legal interest of 7% from the date of judicial demand until said judgment is paid. And in all other respects the judgment of the trial court is affirmed. All costs of these proceedings at the trial and appellate levels are to be borne by defendants in reconvention.

AMENDED AND AFFIRMED.

      . The Motion for Continuance recites:
      “On motion of plaintiff through counsel suggesting to the court that counsel believed that Farm Bureau Insurance Companies was a party to the suit, that said insurer is an indispensable party, for plaintiff claims that said insurer insured her against liability in this suit on the reconventional demands; It is ordered that the trial of this matter be continued from January 30, 1978, to_”

      . The emergency room report reflects no tenderness on palpatation of the left knee and elevation of shoulder, slight tenderness in lower lumbar spine. Reconvenor testified injury to his knee and shoulder cleared in a few days; he received three heat treatments for his back and he lost a day and a half of work.


text:
    Roger A. KENWORTHY v. OUTLOOK, INC., Caudill, Inc. and Dr. Ivan F. Caudill.
    No. 9898.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Paula A. Perrone, New Orleans, for plaintiff-defendant in Reconvention, third-party defendant and appellee, Roger A. Kenwor-thy and Greer G. Kenworthy.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Thomas C. Keller, Robert B. Bieck, Jr., New Orleans, for defendants-plaintiffs in reconvention-appellants, Outlook, Inc., Caudill, Inc. and Dr. Ivan F. Caudill.
    Before GULOTTA, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

On July 1, 1974, plaintiff, Roger A. Ken-worthy, and his wife Greer G. Kenworthy entered into a written stock purchase agreement with defendant, Dr. Ivan F. Caudill, by which the Kenworthys sold to Caudill all of the stock of defendant, Outlook, Inc., which operated a mens’ clothing store in New Orleans. The price consisted of $30,000 in cash and a note for $36,000, payable in quarterly installments beginning on September 1, 1974.

This suit was filed by Kenworthy as the holder of the note on July 17, 1975. He sought $27,000, alleging that the first two quarterly payments had been made for September, 1974, and January, 1975. He also combined in this suit on the note a claim for damages for various reasons following the execution of the note and contract. In response defendants pleaded the affirmative defense of failure of consideration and they asserted a reconventional demand against Kenworthy and a third-party demand against Mrs. Kenworthy for damages allegedly sustained because of Kenworthy’s actions following the execution of the note and contract.

The trial judge rendered judgment in favor of plaintiff against Caudill, Inc. and Dr. Caudill for the balance of $27,000 on the note with interest and attorney’s fees. All other claims of Kenworthy were dismissed. Likewise, all claims asserted by defendants in their reconventional demand and third-party demand were dismissed. From that judgment only the defendants have appealed, but Kenworthy neither appealed nor answered defendants’ appeal, so that the other claims asserted by Kenworthy are not before us. In addition, the appeal was taken only by Caudill, Inc. and Dr. Caudill, but no appeal was taken by Outlook, Inc. so that it is not a party to this appeal.

The trial judge has favored us with the following reasons for judgment:

“The Court is of the opinion that the defendant has failed to prove by that preponderance of the evidence necessary for him to prevail that the balance due on the said note is not due and owing, and there will be judgment in plaintiff’s favor for the balance due on the said note of $27,000.00.
“With reference to defendant’s claim for damages, the Court is of the opinion that defendant has failed to prove by a preponderance of evidence one iota of damages which he may have suffered as the result of any action on the part of the plaintiff.
“There is no question in the Court’s mind that the plaintiff failed to act entirely in good faith during the operation of the two businesses (Lui, Inc., and Outlook, Inc.), and there is further no doubt but that there was misrepresentation in connection with the purchase agreement. However, defendant had admitted that ‘all discrepancies were cleared up’ and he proceeded thereafter without complaint until the businesses failed and these proceedings were instituted. While the actions of the plaintiff may well have caused damage to defendant, defendant has failed to submit any evidence in support thereof which would enable the Court to make any monetary award.”

At the outset we will address the first specification of error urged by appellants. They contend that the trial court erroneously allocated to them the burden of proof in the case. Pointing to the first quoted paragraph of the trial judge’s reasons they maintain that this is inconsistent with the jurisprudence which holds that even though a plaintiff is entitled to a presumption that the note he sues on is supported by a consideration, if the defendant offers evidence which casts doubt upon the reality of the consideration the ultimate burden of proving consideration by a preponderance of the evidence is on the plaintiff. Andrews v. Williams, 281 So.2d 120 (La.1973), Redi-Spuds, Inc. v. Dickey, 230 La. 406, 83 So.2d 801 (1956), Bernard Brothers v. Dugas, 229 La. 181, 85 So.2d 257 (1956).

We disagree with appellants that there is any inherent contradiction between the statement of the trial court and the cited jurisprudence. Apparently, the trial judge took the position, and we agree, that the testimony and evidence offered by appellants was not even sufficient to make it appear doubtful that full value was given to appellants for the note. Even if some doubt was initially cast on the consideration, however, the evidence does not preponderate in appellants’ favor on their defense to the note.

Appellants were provided with a statement of operations and a balance sheet on Outlook, Inc., dated May 31, 1974, and subsequent to the sale in July they were provided with a statement of Outlook’s condition as of June 30, which contained some substantial discrepancies with the earlier statement. For one, the stockholder’s equity had been reduced from $39,659 to $36,-903. According to appellants this constituted a breach of one of the warranties contained in the sales agreement by which the “assets” were supposed to amount to $40,-000 as of the closing date on July 1. However, whatever rights may have accrued to appellants because of this discrepancy were waived. Dr. Caudill testified that he was paid the difference of $3,097 on August 1 and he was satisfied that this aspect of the problem had been settled. Similarly, the statement of May 1 showed, among Outlook’s assets, an amount due from Lui, Inc. of $15,741, whereas the statement of June 30 received by appellants after the closing showed an amount due from Lui in the amount of $50,682.

At this point, it should be understood that when Kenworthy sold Outlook to appellants he already had another clothing store which was Lui, Inc. When he left Outlook he was employed by Dr. Caudill at $1,000 a month to train Outlook’s new manager. From the very beginning difficulties developed because Kenworthy was buying merchandise for Lui at the same time he was working with Outlook’s new manager in purchasing merchandise for Outlook. He was also using the credit of Dr. Caudill and Outlook for purchases he was making for Lui. Dr. Caudill was aware that Kenworthy was making purchases for both corporations but claimed he did not become aware until much later that his credit was being extended for Lui’s benefit.

In any event, he testified that by September, 1974, the amount due Outlook by Lui was cleared up partially with merchandise transferred from Lui to Outlook and finally with Lui’s check to Outlook for $20,670. There was also on the statements a note payable by Outlook to the bank for $25,000 which was, according to the agreement, to be paid simultaneously with the sale on July 1, but which was not finally paid until September.

It is clear that some of the obligations undertaken by Kenworthy were not complied with as promptly as the agreement contemplated but appellants clearly waived any objection they had to Kenworthy’s dilatory performance. The problems which we have discussed relative to discrepancies in the statements furnished before and after the sale were cleared up to appellants’ satisfaction by Dr. Caudill’s own admission and no legal ground for complaint as to these items remained.

Significantly, Dr. Caudill paid the quarterly installments due on the note on September 1, 1974, and January 1, 1975. During this period of time Outlook declined and eventually went bankrupt. No legal action was taken by appellants against Kenworthy until after this suit was filed in July, 1975. This is another reason why we have had no difficulty concluding that the various objections made by Dr. Caudill to the so-called discrepancies were waived by him.

Remaining arguments center around Kenworthy’s use of Outlook’s credit to build up Lui’s inventory and appellant’s theory that this caused Outlook to fail. We agree with the trial court that appellants have not produced sufficient proof of this allegation. First, we must observe that Kenworthy and Dr. Caudill maintained a close business relationship after Outlook was sold and it was with Caudill’s understanding and permission that Kenworthy was functioning as the buyer for both companies. Much of the merchandise, although delivered to Lui after the sale, was ordered before when Ken-worthy was the owner of both companies and had a perfect right to utilize the credit of Outlook when the purchases were made. Even though Caudill maintained that he was unaware that Outlook’s credit continued to be used by Kenworthy in making purchases for Lui there was no proof that this was a direct cause of Outlook’s ruin. It is equally feasible that Outlook failed because it was under capitalized and badly managed. Many checks were drawn by Dr. Caudill on Outlook for his personal expenses. It was shown that Outlook was probably over extended because of the opening of a branch in New Roads at a time when the original Outlook was already floundering. When the entire history of the relationship between Kenworthy and Caudill, the developments which took place following the sale on July 1 and the ultimate downfall of Outlook are considered in the light that Dr. Caudill made his first two payments due on the note, the logical explanation for this lawsuit appears to be that appellants were attempting to place the blame on Kenworthy for their own failure to make the business succeed. Ultimately, the only claim which was proved here was the note and all of the other claims were unproven.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: GULOTTA, Judge.

text:
    GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION et al. v. CHEROKEE INSURANCE COMPANY.
    No. 9901.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Porteous, Toledano, Hainkel & Johnson, Christopher E. Lawler, New Orleans, for plaintiff-appellee.
    Emile L. Turner, Jr., Louis P. Selig, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and BEER, JJ.
   GULOTTA, Judge.

This matter involves the interpretation of the unscheduled personal property loss coverage of a homeowners insurance policy. The loss was suffered by a person other than the insured on the insured premises as a result of a burglary. Finding coverage under the policy, judgment was rendered in favor of plaintiff for the amount of the loss. We affirm.

The matter was submitted on a stipulation of facts which, in pertinent part, states:

“1. That Dr. and Mrs. Louis C. Cusaehs reside at 7711 Willow Street. On June 25,1974, the Cusaehs departed the United States for Buenos Aires, Argentina, for a period of approximately six months, on sabatical.
2. That prior to this departure, the Cu-sachs arranged for three girls, Mary Hainkel, Patricia Connolly, and Jane Cunningham to reside in the Cusaehs’ home as “house-sitters” and to remain therein until the Cusaehs’ return to New Orleans. Under the terms of the arrangement, the girls paid the gas, electric, and water bills, fed the family dogs and tropical fish, and kept the yard up. Dr. Cusaehs continued to pay the maid, who appeared twice weekly. The Cusaehs left all their furniture and household wares at their Willow Street home, as well as those items of clothing not needed in Argentina.
3. That on August 18, 1974, approximately two months after the Cusaehs’ departure, the house was burglarized. Among the items stolen was property belonging to Mary Hainkel valued at $880.81.”

The provisions of the policy under which plaintiffs seek recovery read as follows:

“COVERAGE C — UNSCHEDULED PERSONAL PROPERTY
This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling and owned or used by an Insured, while on the described premises and, at the option of the Named Insured, owned by others while on the portion of the premises occupied exclusively by the Insured.”

Defendant claims that personal property of persons other than the insured are covered under the policy when the loss occurs on the insured’s premises only when those premises are occupied “exclusively” by the insured. According to defendant, because the named insured, Dr. and Mrs. Cusachs, were out of the country on a six month sabbatical leave when the burglary and loss occurred, the premises were not “occupied exclusively by the insured” and the loss is not covered under the policy. We do not agree.

As pointed out by the parties to this dispute, the words “occupied exclusively” are not defined in the policy. A reading of Coverage C in its entirety, however, indicates that coverage is extended to personal property losses on premises owned or used by the insured; on other than the described premises owned or used by the insured; for losses of a guest while in a residence occupied by the insured; and losses of a residence employee in the described premises or in a residence occupied by the insured. Finally, coverage is afforded under the policy (in dispute in this case) for losses by others while on the premises occupied exclusively by the insured:

The policy involved is a standard homeowners policy with the usual homeowners coverage and additional endorsements. Among other specific exclusions under Coverage C are thefts while the described dwelling is rented or leased to others. Clearly, the reason for this exclusion is that this type of coverage comes within the scope of a landlord and tenants policy.

We reject defendant’s claim that coverage is extended under this policy for losses which occurred under such circumstances

where the insured’s physical presence, although not constant, is “sufficiently regular” to exercise physical control and supervision over his household. The clear intent of this homeowners policy is to cover losses which occur on premises used as a household of the named insured as distinguished from other premises rented to others by the insured or business premises of the insured. Because the named insured was temporarily away from the premises for an extended period of time, but had arranged with persons to occupy the premises in the absence of the insured for the protection of the premises and its contents, we cannot conclude that the premises were not exclusively occupied by the insured.

This is not a case where the named insured owner has allowed the insured premises to become vacant or unoccupied for an extended period of time. In these instances the policy provides that coverage is not extended where the described building “is vacant or unoccupied beyond a period of sixty (60) consecutive days . . . ”

We are cognizant of that line of Louisiana jurisprudence which states that any ambiguities in an insurance contract, particularly exclusions, are to be construed against the insurer. See LSA-C.C. art. 1957; Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958); Bubrig v. Phoenix of Hartford Insurance Company, 306 So.2d 60 (La.App. 4th Cir. 1974). However, we do not find ambiguity in the provision of this policy which includes “premises occupied exclusively by the insured.”

The determination of the trial judge that the policy covers the personal property loss in this case is correct. The judgment is affirmed.

AFFIRMED.

      . Plaintiff General Accident Fire and Life Assurance Corporation paid the claim under a homeowners policy for the amount of the loss less the deductible and asserts this claim in subrogation. The remaining plaintiff is asserting a claim for the $100 deductible against the insurer of the premises where the burglary occurred.

      . See COVERAGE B — APPURTENANT STRUCTURES . . .
      This coverage excludes:
      1. Structures used in whole or in part for business purposes; or,
      2. Structures rented or leased in whole or in part or held for such rental or lease . . .
      to other than a tenant of the described dwelling.
      Further, COVERAGE C — UNSCHEDULED PERSONAL PROPERTY, in describing the perils insured, specifically excludes under the general theft exclusions:
      . (b) Theft Exclusions applicable while the described dwelling is rented to others: . .


text:
    James M. WILLEM v. CITY OF NEW ORLEANS DEPARTMENT OF POLICE.
    No. 9905.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Clyde P. Martin, Jr., New Orleans, for plaintiff-appellant.
    Marc G. Shachat, Michael A. Starks, New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and BEER, JJ.
   GULOTTA, Judge.

Plaintiff, a City of New Orleans police officer, appeals from a Civil Service Commission determination upholding a ninety day suspension imposed on plaintiff by the Superintendent of Police for violation of sick leave regulations.

The relevant facts found by the Commission and supported by the record are that on September 23, 1977 James M. Willem sustained an injury to his left leg and right finger while making an authorized arrest. He remained on sick leave under the care of his personal physician until October 13, 1977. His physician and the police department’s physician found plaintiff fit to return to duty on the following day, October 14th. On October 13th, plaintiff reported to his assigned District station his availability for duty on October 14th. At 10:00 p. m. on the evening of October 13th plaintiff “went to Johnny White’s Restaurant and Bar on 731 St. Peter Street without reporting same to the authorities.” According to plaintiffs, he had remained at the bar until approximately 12:00 p. m. when he returned home.

In a November 8, 1977 letter informing plaintiff of the suspension, the superintendent stated that plaintiff’s misconduct (not returning to his residence on October 13th after visiting the doctor and reporting his availability for duty for the following day) was in violation of the following New Orleans Police Departmental Regulations:

“DR 630-3) CONDUCT WHILE ON SICK LEAVE
II. Restrictions
3. An employee on sick leave shall not leave his residence or other authorized location of confinement prior to returning to duty from sick leave, except as provided herein.
4. Employees who must visit personal physicians during short periods of sick leave (several days) shall notify the Medical Section accordingly, giving the name of the physician and the office, clinic or hospital address where the visit is to be made. The Medical Section shall be notified when an employee returns from such a visit.
6. When an employee is unable to notify the Medical Section of a physician’s visit and when an employee’s unit has no Platoon Commander on duty, the Command Desk (Communications Section) shall be notified and furnished information as required in paragraph 4.
III. Returning to Duty
13. When an employee reports himself as being sick, he remains on the sick list until he is ordered back by the departmental physician or until he actually returns to duty. For example, if an employee reports himself as being sick on the morning shift, which is from 7:00 A.M. to 3:00 P.M., and recuperates sufficiently during the day so that he feels that he will be able to return to work on the following day, he will not, after 3:00 P.M. consider himself as no longer being sick and must remain at home for the full 24 hours.”

The Civil Service Commission stated in its findings:

“The facts clearly show that appellant left his residence prior to returning to duty and that he does not come under any exception cited in that regulation. Thus, appellant clearly violated Departmental Regulation 630-3."

Plaintiff first contends that the findings of the Commission are neither consistent with the appointing authority’s reasons for suspension nor consistent with the evidence. Furthermore, relying on Louisiana Constitution of 1974 Article 10, Section 10(A) which vests the Commission with broad and general rule making powers, plaintiff claims that Departmental Regulation 630-3 infringes on the exclusive authority of the Commission to make rules governing the administration and regulation of the classified service. According to plaintiff, because the Departmental Regulation is more “stringent” than the relevant Civil Service Commission Rules relating to sick leave, the Departmental Regulations are unconstitutional.

Considering plaintiff’s first contention we conclude that the Commission’s findings are consistent with plaintiff’s admissions at the hearing. Willem stated that after returning from the doctor and after reporting his availability for duty on the following day, he did not return home but went to a restaurant and bar. Although the record does not strongly support the Superintendent’s observations in the letter of suspension regarding prior sick leave violation, nevertheless, the record does support the Superintendent’s findings of violations of Regulations 630-3, Section II, paragraphs 3, 4 and 6, and Section III, paragraph 13.

Furthermore, we find no merit to plaintiff’s claim of unconstitutionality of the pertinent regulations. Because the Louisiana Constitution confers upon the Commission broad and general rule making power and the authority for administration and regulations of classified service, including employment conditions and suspensions, the Department is not prohibited from adopting disciplinary regulations for the proper and effective administration of the police department. We do not consider the Police Department’s Regulations to be in contravention of or inconsistent with the Constitutional rule making power of the Commission, but rather as an implementation of these rules. Accordingly, we conclude that the Departmental Regulations involved in this ease do not constitutionally infringe upon the authority of the Civil Service Commission as provided for in Louisiana Constitution 1974 Article 10, Section 10. Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . Plaintiff claims the Superintendent stated in the letter suspending plaintiff that Willem had been guilty of prior sick leave violations and the record before the Commission did not support this finding.

      . “§ 10. Rules; Investigations; Wages and Hours
      Section 10. (A) Rules. (1) Powers. Each commission is vested with broad and general rule-making and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; . .


text:
    Clarence P. FORET v. Jeanne L. SCHROEDER et al.
    No. 9908.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Jacob L. Karno, a Professional Law Corporation, Jacob L. Karno, Metairie, for plaintiff-appellee.
    Phelps, Dunbar, Marks, Claverie & Sims, Harry A. Rosenberg, New Orleans, for defendant-appellant J. L. Sand Co., Inc.

      Oscar J. McMillan, New Orleans, for defendants-appellants, Schroeder, Sanders and Waguespack.
    Before GULOTTA, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff is the lessee of some land in Jefferson Parish owned by defendants, Mrs. Jeanne L. Schroeder and her two daughters (hereinafter collectively referred to as Mrs. Schroeder) by virtue of a written lease made on November 7, 1974. The lease contained the following:

“Lessors reserve unto themselves the right to terminate this lease provided a bona fide purchaser of the premises as described hereinafter shall desire to cancel said lease. Lessors shall give one hundred and fifty (150) days written notice to Lessee of their desire to sell said premises, and Lessee shall have ninety (90) days in which to match said bona fide offer in the event it desires to purchase the premises. The tenant covenants to execute, acknowledge and deliver a surrender of this lease within ninety (90) days from the service or mailing of said notice in the event a sale to a third party is consummated and, in such event, Lessee shall receive a prorata refund of any rental payment hereunder.”

On July 26,1976, Mrs. Schroeder received an offer to purchase the property from defendant J. L. Sand Company, Inc. (hereinafter Sand) on terms of $140,000 cash, the act of sale to be passed on or before April 30, 1977, and requiring a cash deposit of $5,000 upon acceptance by Schroeder. On July 26 Schroeders’ attorney sent a letter to plaintiff at the address designated for' plaintiff in the lease by registered mail, return receipt requested, advising him as follows:

“According to the terms of the batture lease with you dated Nov. 7,1974, you are hereby notified of owners desire to sell this batture property, and you are hereby given 150 days notice of their desire to sell same.
“I attach to this notice a copy of a bona fide offer to purchase, which has been accepted by owners, subject to the lease agreements with you and your rights thereunder.
“According to the terms of the lease (paragraph 5, page 3) I shall within 90 days of this notice, expect from you a matching offer to purchase, or a surrender of your lease and an agreement terminating said lease. The termination to be effective on the day of act of sale to the third party, said sale shall pass not less than 150 days from the date of this notice.
“Please contact us at your earliest convenience so that this matter may be consu-mated (sic).”

In response thereto the attorney who was then representing plaintiff but who, on May 13, 1977, was replaced by present counsel, addressed the following letter to Schroeder’s attorney on August 9, 1976:

“Your letter of July 26,1976 addressed to Mr. Foret has been forwarded to us and we have had an opportunity to discuss with Mr. Foret his intentions in the matter.
“At this time Mr. Foret has indicated to us a desire to match the offer to purchase and to take title in his own name. “Under the provision of the lease, he has 90 days in which to formally match the offer. Mr. Foret has indicated to us that he is making arrangements at this time and should be back in touch with us within the next two weeks in order to commence the procedure for formalizing his decision. We will be communicating with you further at that time and in the event that we can supply any further information to you prior to that time kindly feel free to call.
“Mr. W. F. Denkman of our office will be handling this matter and we suggest that you communicate with him after his return from vacation on August 17, 1976.”

On October 28, 1976, plaintiff’s attorney delivered to Schroeders’ attorney an agreement dated and signed by plaintiff on October 23, 1976, to purchase the property for $140,000, the sale to be passed on or before April 30,1977, and calling for a cash deposit of $5,000, together with a check drawn by plaintiff to the order of his then attorney, dated October 22, 1976, and endorsed and made payable to Schroeders’ order. On November 2 the offer and check were returned to plaintiff, and he was informed that his offer was too late since it was beyond the 90 day deadline given him in the lease to make a matching offer. This suit followed on November 12.

Plaintiff sought injunctive relief against defendants from executing a purchase and sale of the property and requiring Schroeder to transfer the property to him. The rule for a preliminary injunction was tried on December 2, 1976. In pleadings and at trial plaintiff took the position that his offer of October 28 was timely because, while it was sent to him on July 26 he did not have notice of Sand’s offer until July 31. On January 3,1977, that rule was dismissed by the trial judge, and although the appeal was never perfected with the posting of the necessary bond, and that judgment became final. On March 21, 1977, defendants moved for a summary judgment, seeking a dismissal of plaintiff’s suit, and oppositions were filed by plaintiff on April 15 in which reliance was again placed on the October 28,1976, attempt to make a matching offer. On May 13, 1977, present counsel came into the case and filed a supplemental opposition to defendants’ motion for summary judgment along with a supplemental and amended petition in which, for the first time, plaintiff took the position that the letter of August 9, 1976, constituted a matching offer in compliance with the lease. The motion for summary judgment was denied and the case proceeded to trial on February 21, 1978. On May 4, 1978, the trial judge rendered judgment in favor of plaintiff, ordering defendants to convey the property to him pursuant to the offer. From that judgment defendants have appealed.

In his reasons for judgment the trial court found that the August 9 letter, various conversations between plaintiff and his lawyers at that time and evidence that plaintiff was arranging for a loan to purchase the property were sufficient to show that plaintiff intended to purchase the property and he conveyed his intentions to his then attorneys. The court held that the August 9 letter constituted an acceptance in accordance with the lease terms and conditions.

In this court, defendants filed an exception of no cause of action to plaintiff’s petition because plaintiff failed to allege that his attorney was authorized in writing to make an offer to purchase the property from defendant. Plaintiff moved to strike this exception, but we have denied that motion since LSA-C.C.P. Art. 2163 specifically authorized the filing of a peremptory exception in the Court of Appeal under the circumstances.

Defendants’ exception is based primarily on the well established proposition that the mandate authorizing the agent to buy or sell immovable property must be in writing and an agreement to buy and sell immovable property must likewise be in writing. Tchoupitoulas, Inc. v. McCullough, 349 So.2d 346 (La.App. 4th Cir. 1977). Obviously, if plaintiff was not bound by his attorneys’ verbal representations and the letter of August 9 neither could defendants be bound. Defendants’ position seems identical to that upheld by the court in Paul Voisin Corp. v. Torrey, 271 So.2d 624 (La.App. 1st Cir. 1972) writs refused, 275 So.2d 780. Thus, defendants’ exception appears to be meritorious.

At the trial of the case evidence was elicited without objection by defendants from plaintiff’s former attorneys that they did not have written authority from plaintiff to send the August 9 letter. Plaintiff would have us disregard this evidence and this issue because it was not raised in the pleadings by defendants and was not even mentioned until the matter came to this court. It appears that these objections are answered by C.C.P. Art. 1154’s provisions that when issues not raised by the pleadings are tried by consent of the parties they shall be treated in all respects as if they had been raised by the pleadings and Art. 2164’s broad definition of the scope of an appeal. Nevertheless, we need not decide the case on this issue because the August 9 letter, even if valid under principles of mandate, was not sufficient to constitute an exercise by plaintiff to make a matching offer to purchase defendants’ property.

The quoted lease provisions provided plaintiff with “ninety (90) days in which to match said bona fide offer in the event it desires to purchase the premises.” The August 9 letter is no more than a vague expression of plaintiff’s desire to purchase. It simply does not purport to match Sand’s offer no matter how it is read. Plaintiff speaks of the letter as being an exercise of his option and an acceptance of defendants’ offer to sell, and the trial judge also spoke of the letter as some sort of acceptance of an offer he found to be made by defendants in the lease itself. But the terms of the lease simply do not support such an interpretation. The words are plain and unambiguous, they required plaintiff to make a firm, definite and clear offer to purchase the property from defendants on the same terms which Sand had made. The August 9 letter did not meet this requirement.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of defendants, Mrs. Jeanne L. Schroeder, Jeanne Lee Schroeder Sanders and Alma Lois S. Waguespack and J. L. Sand Company, Inc., and against plaintiff Clarence P. Foret, dismissing his suit at his cost.

REVERSED AND RENDERED.


text:
    Huey FORTENBERRY and A. L. Melancon, Inc. v. DIXIE BREWING COMPANY, INC.
    No. 9913.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Grisbaum & Kleppner, Charles Grisbaum, Jr., Metairie, for plaintiffs-appellants.
    Henican, James & Cleveland, Joseph P. Henican, III, New Orleans, for defendant-appellee.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, A. L. Melancon, Inc., has appealed a declaratory judgment decreeing that defendant, Dixie Brewing Company, Inc. (Dixie), had legal cause to terminate the exclusive right of plaintiff to distribute beer in parts of Orleans and St. Tammany Parishes.

Appellant first complains that the trial court erred procedurally in rendering judgment beyond the scope of the declaratory relief sought, and, alternatively, plaintiff next urges the factual evidence does not support the judgment.

The scope of the declaratory judgment suit is outlined by C.C.P. arts. 1871 et seq. Under C.C.P. art. 1872, “a person interested under a * * * contract * * * may have determined any question of construction or validity arising under the * * * contract * * The suit may be filed either before or after the breach (C.C.P. art. 1873). The trial court, in addition to making the status determination sought, may grant supplemental relief where necessary and proper under C.C.P. art. 1878. Issues of fact in these cases are to be tried and determined in the same manner as in other civil actions. (C.C.P. art. 1879)

Thus, if the pleadings stipulate the supplementary relief sought, the issue is properly before the court. Plaintiff’s petition not only puts the validity of the contract at issue but it also raises the question of what constitutes a breach. The prayer for judgment asks the court to decree “ * * * that termination of the distributorship would be a violation of the terms of the agreement dated August 11,1959 * *.”

Defendant’s answer sets forth the issues with clarity, namely, (1) Does plaintiff operate the distributorship under a contract?; and (2) if the letter on which plaintiff bases its claim is in fact a contract, has plaintiff’s performance justified its termination?

At the trial, plaintiffs counsel objected to introduction of any evidence offered to establish unsatisfactory performance on the part of plaintiffs agents. The trial court properly overruled the objection because the pleadings filed by both litigants set forth unsatisfactory performance as an issue.

In appellant’s brief, counsel states that Dixie’s attorney indicated prior to trial that the narrow issue was whether the letter of 1959 was in fact a contract. We note plaintiff’s counsel did not raise this point during the course of the trial, and we have not been referred to any written stipulations that would reflect such an agreement. Our review is limited to evidence contained in the record; therefore, we cannot consider counsel’s statement concerning the limitation of issues. Discon v. Saray, Inc., 262 La. 997, 265 So.2d 765 (1972).

Further, in the interest of judicial economy, it is questionable whether the issue, once raised, could be deleted. Our law does not sanction piecemeal trials. (Cooper v. Cooper, 205 So.2d 98 [La.App. 2d Cir. 1967])

Turning to the merits, the record establishes that Mr. and Mrs. A. L. Melancon began as distributors for Dixie in 1944. At Melancon’s request, Dixie issued a letter dated August 11, 1959, declaring an intent “ * * * to continue its relationship with Mr. and Mrs. Aynaud Melancon in the capacity of distributor of Dixie Beer in Boga-lusa-Slidell, Louisiana area * * In 1966 the corporation, A. L. Melancon, Inc., was formed to assume operation of the distributorship, which A. L. Melancon actively managed until his death in 1971. At that time Huey Fortenberry assumed control of the operations.

The legal effect of the 1959 letter, viewed in the light most favorable to the plaintiff, evidenced a contract for an exclusive distributorship in a given area of Orleans and St. Tammany Parishes. The distributorship vested originally in the individual Melancon and was later transferred to the Melancon corporation, which continued to act. Passage of 12 years from the time of incorporation to the notice of termination suggests Dixie tacitly agreed the distributorship could vest in the corporation. (See C.C. art. 1817) The trial court’s reasons for judgment do not discuss whether a valid contract was in existence between plaintiff and defendant in 1978 because its factual finding that the plaintiff’s performance entitled defendant to cancel whatever agreement, if any, was in existence, made the first issue academic.

In reviewing the evidence, we conclude the factual findings of the trial court are not “clearly wrong.” We did not limit our review of facts to reading of the record simply to ascertain if it revealed a reasonable factual basis for the trial court’s finding. We went one step further and weighed the question as to whether this finding was “clearly wrong.” Arceneaux v. Domingue et al., 365 So.2d 1330 (La.1978).

Briefly stated, the record establishes the defendant’s officials became aware of deficiencies throughout plaintiff’s territory by a survey it conducted in December 1976. The problems included the presence of stale beer on the shelves of retail outlets serviced by plaintiff, the lack of advertising in the store, the failure to procure adequate shelf space, and the failure to furnish all the products available in the Dixie line to the stores in the territory. Not only did Dixie officials advise Fortenberry to correct the deficiencies in his territory more than once, they also offered, assistance which was never accepted. Finally, after ten months of attempting to have the problems in this distributorship corrected, Dixie terminated the arrangement between it and plaintiff. It was justified.

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

AFFIRMED.

      . According to the uncontradicted testimony tendered by defendant, in the industry the shelf life of beer is 90 days from the date stamped on the containers, after which period there is a radical change in its taste. In the September survey defendant found violations in the first six stores it inspected. In other instances it found some of its products were six months old and some more than a year old.

      . Defendant conducted several merchandising surveys of the areas serviced by the plaintiff, copies of which were attached to the following letters itemizing the deficiencies found: December 13, 1976; January 20, 1977; June 8, 1977 (at which time plaintiff’s distributorship was placed on 60 days’ probation); July 28, 1977 and September 23, 1977. On October 10, 1977 defendant notified plaintiff by letter that the distributorship was terminated because of its failure to correct the deficiencies repeatedly called to its attention.


author: REDMANN, Judge.

text:
    Jeannine Phillippe GALATA as tutrix of the minor, Daniel Pleustache v. FIRESTONE TIRE & RUBBER CO.
    No. 9942.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Arthur G. Kingsmill, Gretna, for plaintiff.
    Benjamin R. Slater, Jr., William J. Hamlin, Benjamin R. Slater, III, Monroe & Lem-ann, New Orleans, for defendant.
    Before REDMANN, LEMMON and GARRISON, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment awarding penalty wages and attorney’s fees under La.R.S. 23:632 for failure to pay plaintiff wages as required by R.S. 23:631. (Plaintiff, a minor when employed and when suit was brought, has been substituted in this suit brought by his mother.)

R.S. 23:631 (before its amendment by Acts 1977 No. 317) made it “the duty” of every person employing laborers to pay discharged or resigned employees within 24 hours of termination upon “demand” by the employee at the place of usual payment. R.S. 23:632 (as amended, Acts 1964 No. 422) penalized noncompliance with penalty wages until compliance, up to a maximum of 90 days, and attorney’s fees.

Mason v. Norton, La.1978, 360 So.2d 178, holds the statute applicable to hourly wage earners who are paid “by the day, week or month” (with a possible exception of employees who do “piece work,” as in Gros v. LeBlanc, La.App. 1 Cir. 1974, 304 So.2d 49). Accordingly the statutory clause “whose employment is by the day, week or month” does not make the statute inapplicable to plaintiff, an hourly wage laborer paid weekly. Although plaintiff was supposedly employed as a “part-time” laborer as needed, in the four days of his employment he worked 33.25 hours, or more than the usual full-time measure of eight hours a day. Thus we conclude plaintiff’s employment cannot be characterized as piece-work like Gros’s, as defendant argues (and we need not decide whether Gros should be followed). Plaintiff’s work was not merely occasional work—e. g., two hours one day, four hours a few days later—and in that sense “part-time as needed” and therefore arguably like Gros’s piece-work. This record supports the conclusion that plaintiff was a regular employee during the four days of his employment, notwithstanding that he expected to work less, though still six days and 36 hours a week, in the future when school would occupy him until noon daily.

Defendant also suggests that plaintiff did not “demand” his wages within the statute. Defendant’s store manager testified that plaintiff asked, upon his discharge, “when” he would be paid, and was told that he would be paid the following Saturday. Plaintiff returned the following Saturday but the check had not arrived from defendant’s central office in Akron, Ohio. Defendant’s manager testified plaintiff “did return I’d say three or four times, but this was within a two to three week period.” Plaintiff testified, supported by a telephone bill showing such a long distance call, that on August 22, 1975 he even called defendant’s office in Berea, Ohio, to try to get his check. Plaintiff’s several actions constituted ample demand under the statute.

The check was dated August 23, but was not delivered to plaintiff nor was plaintiff notified that it was available. Defendant’s manager says he could not find plaintiff’s telephone (listed in his stepfather’s name) or address. (The manager did not call Akron for that information from plaintiff’s employment application which had been sent to Akron.) The manager also asked a friend of plaintiff to let plaintiff know that the check had arrived, but that friend testified that he did not see plaintiff. Meanwhile plaintiff contacted counsel and followed his advice to let the 90-day statutory maximum for penalty wages go by before making any further demand. Defendant argues that these circumstances should be considered as “equitable defenses” within cases such as Miletello v. Noble Drilling Corp., La.App. 2 Cir. 1975, 316 So.2d 505.

Defendant sees the case as one in which the employee agreed to wait for the regular payday (otherwise, said the manager, he would have been paid on the spot in cash) and then did not claim his check when it arrived. This view is a fair one insofar as it might support a waiver of plaintiff’s right to payment within 24 hours and until the following Saturday when the check was supposed to arrive. But this view ignores defendant’s own evidence that plaintiff attempted to claim his check “three or four times . . . within a two to three week period” before it finally arrived. When the check did not arrive during the time plaintiff had agreed to wait, defendant should then have paid plaintiff in cash. The statutory duty is clear, and defendant’s violation was not merely a “technical” one like Mile-tello found. Defendant apparently has not taken measures to insure compliance with its statutory duty. The duty is defendant’s, and defendant cannot place the duty upon the employee to continue to demand, time after time, the pay defendant is obliged to render within 24 hours.

Defendant finally argues that the $350 attorney’s fee is excessive in relation to the wages involved. We answer that a lawyer cannot be hired to try a lawsuit for a pittance. If the fee were determined by some fraction of the $70 originally in dispute, plaintiff could not find a lawyer to take his case to court. The employer could mock the law with impunity. The fee must therefore be a reasonable one, sufficient to enable hiring a lawyer, notwithstanding that the unpaid wages are only a few dollars.

Affirmed.


author: BEER, Judge.

text:
    Alton RYAN v. TELLEPSEN CONST. CO. and Employers National Insurance Company.
    No. 10041.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    LaBorde & Lewis, Gerald Thos. LaBorde, New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, Esmond Phelps, II, New Orleans, for defendants-appellees.

      Before GULOTTA, SCHOTT and BEER, JJ.
   BEER, Judge.

Alton Ryan was working as a carpenter for Tellespen Construction Company (insured by Employers National Insurance Company) when he slipped into a hole between two concrete slabs. Ryan continued working for about a month and a half after this incident but then ceased working because of back pain. Thereafter, he sought and received compensation payments until certified by his treating physician as able to return to his job though he never did, in fact, return. Subsequently, a non-work-related incident occurred: while raking leaves at home, Ryan experienced a “heat wave” type of pain in his back. This incident, he contends, has resulted in possible disc herniation and is related in causal effect to the incident first noted above. The trial court dismissed his suit for permanent and total disability and he appeals.

Dr. Dabney Ewing first examined Ryan on October 28, 1975, three days after his first report of the incident which had allegedly taken place some six weeks prior. Dr. Ewing diagnosed a lumbar muscle spasm of undetermined cause but doubted that it was a result of the incident of September 8th. Even so, Ryan received compensation payments until a subsequent examination by Dr. Ewing showed him to have full range of motion and able in all respects to return to work.

Dr. Russell Grunsten, an expert in the field of orthopedic surgery, examined Ryan on December 9, 1975, and, after prescribing exercise treatment, released him for full duty as of January 13, 1976. His initial examination had revealed no evidence of spasm or neurological defect. Dr. Grunsten saw Ryan again on March 23 and April 11 (soon after the leaf raking incident) and noted appreciable yet unexplainable variations between certain tests conducted at the April 11 examination. These inconsistencies indicated to Dr. Grunsten that Ryan was apparently magnifying his complaints. At any rate, Dr. Grunsten found overall satisfactory mechanical capacity referable to the low back region and again recommended that Ryan return to work. Furthermore, he found no objective evidence of nerve root irritation or mechanical restriction nor could he identify any ruptured disc pathology. Essentially, he could find no justification for Ryan’s complaints.

Dr. Thomas Whitecloud found no abnormalities of the lumbar spine on his examination of December 12, 1975, and his diagnosis at that time was mild lumbosacral sprain. He believed that Ryan could return to work. Then, on May 11, 1975, some two months after the non-work-related incident, he noted paravertebral muscle spasm, an objective diagnostic sign of a possible disc problem and, accordingly, recommended hospitalization. Dr. Whitecloud hospitalized Ryan for traction for one week and performed a myelogram, the results of which were normal. However, a July 13th venogram indicated possible herniation of the L-4, L-5 discs on the left. "Dr. White-cloud acknowledged that it was impossible to state that the September incident caused Ryan’s possible disc problem. It was his “honest opinion” that the raking of the leaves caused the trouble but that the September slipping incident at work could be interrelated.

The able trial judge has succinctly summarized the testimony and the evidence as follows:

“None of the physicians could say that more probably than not plaintiff’s current complaints, dramatically commencing in May, 1976, are causally related to his fall on September 8, 1975. In the absence of such proof, his claim must be dismissed.”

We agree. The judgment is affirmed, at appellant’s cost.

AFFIRMED.

      . Specifically, he received compensation payments of $898.57, and medical expenses of $554.32 were paid in his behalf.


text:
    INSURANCE COMPANY OF NORTH AMERICA v. ATLAS CONSTRUCTION COMPANY, INC., T. L. James & Company, Inc. and Highlands Insurance Company.
    No. 10046.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Dillon & Cambre, Gerard M. Dillon and Carmelite M. Bertaut, New Orleans, for defendants-appellants.
    Joe M. Inabnett, New Orleans, for plaintiff-appellee.
    Before GULOTTA, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff is the workmen’s compensation insurer of U.S. Industries, Inc., Con-plex Division, and brought this action as subro-gee of certain employees who were hurt in an accident on January 27, 1976. Defendants are Atlas Construction Company, Inc. and T. L. James & Company, Inc. (hereinafter collectively referred to as “James”) and their insurer Highlands Insurance Company.

In February, 1973, employees of James assembled and installed on a truck various components to produce a piece of equipment by which the truck could be located on and move along a bridge or overpass and a scaffolding could be suspended beneath the bridge to enable workmen to reach the pillars and other parts of the structure beneath the bridge. Among the components were a double boom mounted above the truck, running parallel to the surface where the truck was located and extending on both sides beyond the perimeters of the bridge or overpass, a drum, cable, various gears to transfer the truck’s power to turn the shaft holding the winch, brake, clutch and levers. The contraption was used successfully and without difficulty until some time at the end of 1975 when the large bronze or “bull” gear mounted on the shaft became worn to the extent that the worn gear attached to the power source could no longer remain engaged with the teeth of the bull. As a result the contraption was overhauled by replacement of the bull gear, both bearings and the brake.

About three months after this overhaul an arrangement was made between employees of Con-plex and James, whereby Con-plex borrowed the machine for use in removing forms beneath a bridge which it had constructed. The contraption was used from four to six weeks without any difficulty when on the date of the accident while a crew was working on the scaffolding under the bridge and truck the drum holding the cable suddenly began to unwind freely and the scaffolding dropped to the ground causing injury to Con-plex employees who were working there.

In deciding the case in favor of plaintiff the trial judge found that James was the manufacturer of the equipment and applied the principle of strict liability on the part of the manufacturer in holding defendants liable. Defendants have appealed, contending that plaintiff failed to prove that there was a defect in the equipment when it left James’ hands as manufacturer and that failure of the equipment was the result of normal wear and tear as opposed to a defect. Defendants also contend that they are not liable because James was a gratuitous lender. We will consider these contentions in reverse order.

For our purposes here we will assume that the loan of the equipment was gratuitous. Defendants rely on Mudd v. Travelers Indemnity Company, 309 So.2d 297 (La.1975), which applied LSA-C.C. Art. 2909 and held that the liability of the gratuitous lender is limited to injuries which result from known defects. However, that principle has no application to a lender of an object which he manufactured because the manufacturer is presumed to know of defects in his products. Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La.1974). Furthermore, plaintiff’s position is one of subrogee, i. e., it stands in the shoes of the injured workmen. They are not in the position of recipients of a gratuitous loan but are strictly third-parties in relation to James as the manufacturer of a defect containing object. Thus, the gratuitous nature of the transaction between their employer and James has no effect on the liability of James to the compensation insurer of these employees.

Defendants’ other contentions are more difficult to resolve. They rely on the principle expressed in Madden v. Louisiana Power & Light Co., 334 So.2d 249 (La.App. 4th Cir. 1976) that plaintiff must prove that this equipment “was defective when it left the hands of the manufacturer,” and they maintain that the particular defect which caused the equipment to fail was more likely the result of inadequate maintenance or normal wear and tear.

At the outset of this discussion, it seems that the scaffolding fell because of a space between the gear housing and the drum holding the cable which permitted the drum to slip over to the gear housing causing the other side of the drum to become disengaged from a clutch which was supposed to prevent the drum from unwinding the cable. After the accident the problem was remedied by the installation of a washer on the shaft to fill this space. The record is not clear as to exactly how the machinery was constructed but it seems that teeth were to slip into the drum to prevent it from slipping in much the same way as a ratchet would prevent the drum from unwinding. Since the thing was built in 1973 and performed without problems for almost three years it seems unlikely that the problem existed from the beginning. In any event, the burden of proof on the point was on plaintiff and it produced no such evidence. We apply the principle discussed in Foster v. Marshall, 341 So.2d 1354 (La.App. 2nd Cir. 1977) Writ refused, that a manufacturer cannot be expected to design products whose parts do not wear out.

The next question is, what effect was had on liability by the overhaul of the equipment by James about three months before it was loaned to Con-plex. This overhaul was precipitated by a specific problem with wear on the bull gear. The replacement of that gear was not shown to relate to the failure of the equipment in the subject accident. The mechanic who did the overhaul might have decided to install the washer had he removed the clutch on the side of the drum opposite from the gear but his attention was not directed to this area and his particular concern was with the gear on the other side. Furthermore, there is no showing that this space had developed on the shaft at that time. It could have developed through normal wear and tear over the period of time between the date of overhaul and the date of the accident. It was plaintiff’s burden to prove negligence on the part of the mechanic, and it failed to do so.

The overhaul does not provide any other basis for legal liability on James. The equipment was still the same old thing which had been in use since 1973 and which was vulnerable to wear and tear. When it was overhauled James did not contemplate loaning it to anyone and when it was loaned to Con-plex no warranty was extended. Perhaps the problem is best addressed by analogy. Suppose this equipment had been located in an outside yard for several years when one day Con-plex asked to borrow it. Suppose further that after James agreed, Con-plex’s employees began to use the equipment and shortly thereafter the machine failed because of rusted bolts and the accident resulted. On what basis would James be liable? It warranted nothing. The risk of the machine’s failure was assumed entirely by Con-plex and it alone would be liable to the employees.

The facts of this case do not support a different result. The injured workmen could look to their employer alone under the circumstances for recovery because James breached no duty, whether in tort or contract, to them. Their subrogee, the plaintiff, likewise cannot recover from James.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of defendants, Atlas Construction Company, Inc., T. L. James & Company, Inc. and Highlands Insurance Company, and against plaintiff, Insurance Company of North America dismissing its suit at its cost.

REVERSED AND RENDERED.