text:
    John W. ROBERTS d/b/a Shady Grove Trailer Park, Plaintiff-Appellee, v. HANOVER INSURANCE COMPANY, Defendant-Appellant, and James B. Wells, Defendant-Appellee.
    No. 13005.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.

      Blanchard, Walker, O’Quin & Roberts by J. Edgerton Pierson, Jr., Shreveport, for defendant-appellant Hanover Ins. Co.
    Mayer, Smith & Roberts by Paul R. Mayer, Shreveport, for plaintiff-appellee John W. Roberts d/b/a Shady Grove Trailer Park.
    James B. Wells & Associates by James B. Wells, Bossier City, for defendant-appellee James B. Wells.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

This is a concursus proceeding instituted by John W. Roberts to determine entitlement to $984.64 deposited into the registry of the court by Roberts in payment of a judgment rendered in the suit of Pollard v. Roberts. The claimants are James B. Wells, attorney for Pollard in the suit, who claims preference under LSA-R.S. 9:5001, and Hanover Insurance Company, who claims preference as a judgment creditor of Pollard who seized Pollard’s interest in the suit and subsequently instituted garnishment proceedings against Roberts. In affirming the judgment of the district court in favor of Wells, we hold that LSA-R.S. 9:5001 gives the attorney a first privilege over the judgment proceeds.

Pollard and Wells executed a contingent fee contract in which Pollard agreed to pay a fee of 40% of any amount collected and by which Pollard assigned Wells a 40% interest in his claim against Roberts in accordance with LSA-R.S. 37:218. Subsequently, while the suit against Roberts was pending, Hanover seized Pollard’s interest in the suit under a writ of fieri facias obtained pursuant to a judgment rendered in favor of Hanover against Pollard in another suit.

Judgment was rendered in favor of Pollard against Roberts. Subsequently, Hanover filed a petition for garnishment which was served on Roberts, who subsequently answered the petition and admitted the indebtedness. Roberts then provoked this concursus. Thereafter, Wells filed a copy of the written contingent fee contract in the record of the Pollard v. Roberts suit and in the record of this concursus proceeding.

The trial court decided that the claim of James B. Wells outranked that of Hanover Insurance Company and rendered judgment in favor of Wells for 40% of the amount deposited into the registry of the court and in favor of Hanover for the remaining 60%. On appeal, Hanover argues that the attorney’s privilege claimed by Wells was effective against third persons only from the date the employment contract was filed in the public records and is, therefore, inferior to the privilege of Hanover arising out of the earlier seizure and garnishment.

Under LSA-C.C. Arts. 3186 and 3187, privileges are ranked by their nature and by the rank given the privilege by the law establishing it. LSA-R.S. 9:5001 grants to attorneys a privilege of first rank for their fees on judgments obtained by them and on the property recovered thereby. LSA-C.C.P. Art. 2292 gives the seizing judgment creditor a privilege on the property seized entitling the creditor to preference over “ordinary creditors”. LSA-R.S. 13:3865, relating to seizure of the interest of a litigant in a lawsuit, gives the seizing creditor a “lien or preference” on whatever is realized by his debtor out of the suit, but does not purport to elevate the rank of the preference stipulated in LSA-C.C.P. Art. 2292 for seizures generally. An attorney with a privilege of first rank is not an ordinary creditor. By its nature, Wells’ privilege for attorney’s fees outranks that of Hanover as seizing creditor against the judgment obtained by the attorney and the proceeds thereof.

The statute creating and ranking the attorney fee privilege contains no requirement that there be a written contract nor that any written contract or other written evidence be filed or recorded in order for the privilege to come into existence and be effective as against other creditors of the client who may have claims against the judgment obtained by the attorney.

In arguing that the privilege is not effective against third parties until it is recorded, Hanover relies on the provisions of LSA-R.S. 37:218. Hanover argues that since LSA-R.S. 9:5001 and LSA-R.S. 37:218 were both originally enacted by Act 124 of 1906, they must be read together and the recordation provisions of LSA-R.S. 37:218 should be applied to the privilege granted by LSA-R.S. 9:5001.

Although LSA-R.S. 9:5001 and LSA-R.S. 37:218 were both contained in Act 124 of 1906, the two sections were meant to deal with separate problems. The attorney fee privilege on judgments obtained by the attorney was established by even earlier legislation. The first paragraph of the 1906 act (now LSA-R.S. 9:5001) amended the attorney fee privilege provisions to subject not only the judgment but any property recovered thereunder to the privilege. The second paragraph of the 1906 act (now LSA-R.S. 37:218) for the first time, authorized and recognized a written contract between a client and an attorney whereby the attorney may acquire as his fee an interest in the subject matter of a suit or claim. It also authorized a stipulation against settlement or other disposition of the suit or claim by either party without the consent of the other. It provided that either party may file the written contract with the clerk of court and thereafter any settlement or other disposition made of the suit or claim by either the attorney or the client without the written consent of the other is null and void. LSA-R.S. 37:218 provides to an attorney a method of protecting himself in the recovery of his fee where he has a written contract granting him an interest in the subject matter of the suit, which method is in addition to and supplemental to the privilege granted by LSA-R.S. 9:5001.

The history of these statutes and their intent and purpose is discussed in detail in Davis Finance & Securities Co. v. O’Neal, 160 So. 463 (La.App.Orl.1935), a case closely in point with the instant ease. Davis involved competing claims by an attorney and a seizing creditor against an amount owed under a judgment obtained by the attorney. The seizing creditor made essentially the same arguments that are made in the instant case. The court recognized the attorney’s privilege as a first privilege priming the privilege of the seizing creditor and held that no written contract or recordation thereof was essential for the privilege to come into existence. The reasoning of Davis is sound and is applicable here.

Hanover cites Palmer & Palmer v. Stire, 195 So.2d 706 (La.App. 1st Cir. 1967). In Palmer, an attorney obtained a judgment for his client, Ory, against one Griffin. Ory and Griffin, without the attorney’s knowledge or consent, settled the judgment and Ory had the judgment canceled from the mortgage records. Griffin subsequently granted mortgages on his property in favor of other parties. The attorney sued to have the judicial mortgage created by recordation of the judgment reinscribed and recognized as a first mortgage against Griffin’s property. There was no written contract between the attorney and client filed of record and the court quite properly reached the result that the client was not prohibited from settling his claim against Griffin and cancelling the judicial mortgage. The attorney was not entitled to have the judicial mortgage reinstated, particularly not to the prejudice of Griffin’s mortgagees who relied on the public records.

Language employed in the Palmer ease on which Hanover relies must be read in the context of the facts and issues involved in that case, which are in no way similar to those involved in the instant case. Palmer is authority only for the proposition that a written contract must be filed before an attorney can, under LSA-R.S. 37:218, set aside a settlement or disposition of a claim made by his client.

Selly v. Watson, 210 So.2d 113 (La.App. 1st Cir. 1968), also cited by Hanover, stands for the proposition that the attorney’s privilege must be asserted in some manner prior to disbursement of the judgment proceeds to a third party. The court in Selly noted that the attorney could have preserved his privilege in that case by filing an affidavit of record or intervening in the proceedings by which the funds were disbursed. The court explained:

“Had relator’s claim for attorney’s fees been filed at any time prior to disbursements of the proceeds by the Sheriff said claim would have taken its regular and lawful place as first privilege.”

Wells asserted his claim prior to disbursement of the proceeds. His privilege, therefore, takes first rank as provided by LSA-R.S. 9:5001. Accordingly, the judgment is affirmed at appellant’s costs.

Affirmed.

      . LSA-R.S. 9:5001 provides:
      “A special privilege is hereby granted to attorneys at law for the amount of their professional fees on all judgments obtained by them, and on the property recovered thereby, either as plaintiff or defendant, to take rank as a first privilege thereon.”

      . LSA-R.S. 37:218 provides:
      “By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution or defense of which he is employed, whether the claim or suit be for money or for property. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client’s domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition had been made.”


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Dixie Harper HODGE, Plaintiff-Appellant, v. James Richard HODGE, Defendant-Appellee.
    No. 13006.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.

      Kostelka, Blackwell & Swearingen by Lawson L. Swearingen, Jr., Monroe, for plaintiff-appellant.
    Johnson, Johnson & Joyce by John R. Joyce, Monroe, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

This is an appeal from the dismissal of a rule to determine and make executory past due child support. Dixie Harper Hodge obtained a separation from James Richard Hodge on October 24, 1974. She was awarded custody of the two minor children and defendant was ordered to pay her $200 per month for child support. On February 12, 1976, plaintiff filed a rule to make exec-utory past due child support alleging defendant had paid $152 per month rather than the $200 provided in the judgment.

The trial court, in dismissing plaintiff’s rule, apparently accepted defendant’s explanation that an agreement was made with plaintiff for him to pay $48 per month to the holder of a mortgage on the family home in partial satisfaction of the child support obligation.

Plaintiff contends this was not her understanding of the agreement she made with defendant in regard to payment of child support. She contends she agreed for the application of the $48 per month on the mortgage payment for the duration of the time she and the children continued to occupy the home. She further contends that she vacated the house in early December, 1974, and that defendant is liable for the full payment of $200 per month from that date through the trial of the rule on March 18, 1976. Plaintiff also contends the trial court had no discretion to reduce or modify the amount accrued under the terms of the judgment which has become a vested property right, and that the judgment remains in full effect in her favor until defendant obtains a court modification of the decree. These are correct statements of the general principles of law concerning the rights and obligations flowing from support decrees as a husband does not have a right to make payment in any manner other than direct to the wife. However, this is to be distinguished from the payment made by the husband to some third party in accord with an agreement made with the wife which is a permissible method of satisfying all or a portion of the obligation of support.

Thére is no doubt that these parties initially entered into such an arrangement as contended by defendant. This is admitted by the plaintiff. The disputed issue of fact is how long this method of payment was to continue.

The narrative of facts submitted by the parties in lieu of a transcript of testimony does not show that plaintiff made any demands upon defendant to change the mode of payment, or took any legal action to enforce direct payment to her of the full amount of the support payment after she moved from the home. This lack of complaint on her part lends credence to the version of the agreement contended by defendant and a tacit acquiescence in the continuation of this method of payment. The trial judge resolved this factual issue against plaintiff, and there is no showing that his conclusion was manifestly erroneous. The judgment appealed is affirmed at appellant’s costs.


text:
    Elzie A. SHOWS, Plaintiff-Appellee, v. ADMINISTRATOR, DEPARTMENT OF EMPLOYMENT SECURITY, et al., Defendants-Appellants.
    No. 13007.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    En Banc. Rehearing Denied, Nov. 1, 1976.
    Writ Refused Jan. 7,1977.

      Marion Weimer, James A. Piper and James A. McGraw, by James A. McGraw, Baton Rouge, for defendants-appellants.
    Baker, Culpepper & Brunson by James R. Hatch, Jonesboro, for plaintiff-appellee.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Elzie Shows filed a claim for unemployment benefits after he was terminated from his position as a guard at the Continental Can Company plant in Hodge, Louisiana. The Department of Employment Security denied his claim and Shows appealed to the district court. Shows’ obtained a judgment by confirmation of default after the Department failed to timely file the record of the administrative proceedings or responsive pleadings.

The sole issue on appeal is whether a district court can render a default judgment against the Department of Employment Security in the absence of the claimant’s administrative proceeding record. Under LSA-R.S. 23:1634, the factual findings of the Department’s Board of Review are conclusive, and the district court retains jurisdiction only over questions of law. Since the Department failed to lodge the record in the instant case there was nothing before the court to review. Therefore, the judgment rendered by confirmation of default was improper. See McBride v. Doyal, 276 So.2d 394 (La.App. 2nd Cir. 1973); Sykes v. Doyal, 265 So.2d 780 (La.App. 2nd Cir. 1972); and Walsworth v. Heard, 84 So.2d 254 (La.App. 2nd Cir. 1955).

The claimant is not without relief, however, because he can file either a rule for contempt or invoke mandamus proceedings to force the Department to file the administrative record as suggested in Walsworth v. Heard, 84 So.2d 254, 256 (La.App. 2nd Cir. 1955).

The default judgment of the district court is vacated, and this case is remanded to that court for proceedings consistent with the views expressed herein.


author: HALL, Judge.

text:
    Marion HUNTER, wife of/and Stephen J. Hunter, Jr., Plaintiffs-Appellants, v. EVERGREEN PRESBYTERIAN VOCATIONAL SCHOOL et al., Defendants-Appellees.
    No. 13008.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    Rittenberg & Wilks by William E. Ritten-berg, Dale C. Wilks, New Orleans, for plaintiffs-appellants.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendants-ap-pellees.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

This is a wrongful death action filed by the parents of Stephen J. Hunter, III. The decedent, a moderately to severely retarded young man, drowned in a pond on the premises of Evergreen Presbyterian Vocational School, where he had been a student for three and one-half years. In a perceptive written opinion, the trial court rejected the plaintiffs’ demands against the school, finding no breach of duty by the school or its personnel. We affirm.

Evergreen is a church sponsored vocational school offering a comprehensive training program for young adults who are mentally, emotionally or socially handicapped. The school is located in a rural area of northwest Louisiana on a 400 acre tract of land, the main campus consisting of about 50 acres. Located on the campus are several ponds, adding aesthetically to the beauty of the campus and providing recreational value for fishing, a primary activity on the campus.

The training program is designed to help each student achieve his or her maximum level of success according to the student’s potential and to develop good personal work habits and attitudes. Training is given in a variety of working experiences, such as carpentry, masonry, mechanics, maintenance, and domestic work. The goal for each student is to reenter society as a productive, useful and better adjusted individual.

Evergreen has no locks on doors and no fences. Students are generally allowed freedom to come and go within the campus without being constantly watched by school personnel. With a student-staff ratio of about 2 to 1, there is close, but not constant, supervision.

The decedent worked on the yard maintenance crew as part of his vocational training. Each work group had a staff supervisor. The supervisors, as a rule, did not stay continuously with the crews. At the time of the accident, the landscape staff supervisor was away from the area near the pond where the students were working, having left for a few minutes to have repairs made to his van. While he was gone, the decedent went into the pond, apparently to retrieve a yard tool, and drowned.

The conduct complained of is the failure of the school to provide continuous supervision of Stephen while he was working close to an unfenced pond. It is not difficult to conclude that the conduct complained of was a cause-in-fact of the accident. But for the existence of the pond and the absence of the supervisor, the accident probably would not have happened.

The next inquiry in making a determination of negligence and liability is to ascertain whether the school owed a legal duty which encompassed the particular risk that caused harm to the decedent. Jones v. Robbins, 289 So.2d 104 (La.1974). Evergreen undisputedly had a duty to use reasonable care to protect Stephen from harm. The principal issue in this case is whether the standard of care owed by the school to the decedent required continuous supervision throughout the working day. Plaintiffs argue that custodial care of severely retarded children requires continuous supervision, and that the school was aware that Stephen in particular needed such supervision.

Evergreen’s duty to use reasonable care in this instance did not dictate continuous supervision. The school’s policy to allow its students a certain amount of freedom consistent with their mental capacities was reasonable and necessary to the accomplishment of the school’s purposes.

As to the duty owed Stephen in particular, he had been at Evergreen for three and one-half years. It was not shown that he received continuous supervision at any time during his stay. During those three and one-half years, he had given no indication that he was dangerous to himself. His only mishap came when he cut himself on the foot with a yard tool. This was not sufficient to give Evergreen notice that continuous supervision was necessary for Stephen’s safety. Many times in the past Stephen had worked near and walked by the pond in which he drowned.

The educational advantages of providing the students some freedom and opportunity to learn self-reliance, and the quality-of-life advantages of the open-space rural environment in which the students lived and worked, far outweigh the risks of harm attendant thereto. The risks were minimal and were not unreasonable under the circumstances.

The duty of the school to provide reasonable care to protect the retarded student from harm did not include the duty of providing continuous supervision or the duty of enclosing the pond. The school’s conduct did not create an unreasonable risk of harm to the decedent, nor was the school’s conduct substandard. There was no breach of the duty of reasonable care.

Plaintiffs attempt to invoke the attractive nuisance doctrine. Application of the attractive nuisance doctrine is nothing more than nomenclature given to a determination that a defendant has breached its duty of reasonable care for the safety of others by maintaining on its premises an unreasonable and foreseeable hazard to children or others with childlike judgment. Stanley v. Missouri Pacific Railroad Company, 179 So.2d 490 (La.App. 3d Cir. 1965). Considering the importance of the pond to the school program and the fact that the students, including Stephen, walked by and worked near the pond daily for years without incident prior to this tragic occurrence, the existence of the unguarded pond did not present an unreasonable and foreseeable hazard to the school’s students.

Plaintiffs contend that the doctrine of res ipsa loquitur applies to this case. Res ipsa loquitur does not apply if there is sufficient, direct evidence explaining the occurrence and establishing the details of the negligence charged. King v. King, 253 La. 270, 217 So.2d 395 (1968). In this case there is sufficient direct evidence, without application of the doctrine, to establish the essential facts of how the accident occurred and the details of the conduct complained of as constituting negligence. We have concluded, however, that the conduct complained of did not constitute a breach of duty and was not negligence. Res ipsa loquitur is not applicable to this case.

The drowning accident was a tragic and unfortunate event, but it was not due to the fault of Evergreen or its employees. LSA-C.C. Art. 2315. Accordingly, and for the reasons assigned, the judgment of the district court is affirmed at appellants’ costs.

Affirmed.


author: JONES, Judge.

text:
    J. L. HASKINS, Plaintiff-Appellant, v. Ben J. CLARY, Sup’t of Utilities, et al., Defendants-Appellees.
    No. 13009.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    En Banc. Rehearing Denied, Nov. 1, 1976.
    Writ Granted Jan. 14,1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Waltman, Napper & Madden by O. L. Waltman, Jr., Ruston, for Ben J. Clary.
    Hale M. Walker, Ruston, for City of Ru-ston.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff has appealed from a judgment sustaining an exception of no cause of action to his suit for $15,000 against the City of Ruston and its Superintendent of Utilities, Ben J. Clary. The claim is based on an alleged breach of contract by the city. We affirm the trial court.

Plaintiff alleges that he negotiated a verbal contract with the city through its authorized agent, Ben J. Clary, by the terms of which the city agreed to convey to him a large transformer as compensation for plaintiff’s obtaining a buyer for generating equipment the city no longer needed and desired to sell. This compensation was to be in addition to a finder’s fee paid plaintiff by the buyer. Plaintiff alleges that he obtained a buyer for the equipment but that the city did not convey the transformer to him, but in fact conveyed it, along with other electrical equipment, to the buyer located by plaintiff.

It is well settled that an exception of no cause of action addresses itself to the sufficiency in law of the petition and is triable on the face of the papers; that for the purpose of determining the issues raised by this exception, the well pleaded facts in the petition must be accepted as true, and that a suit will not be dismissed on an exception of no cause of action if allegations of fact set forth a cause of action as to any part of the demand. Pence v. Ketchum, 326 So.2d 831 (La.1976).

In order for a city to dispose of property no longer needed for public purposes, it must comply with LSA-R.S. 33:4712 which requires, among other things, that a proposed ordinance outlining the details of the transaction wherein the property is to be disposed of, must be introduced by the governmental authority and advertised 3 times in a 15 day period before its adoption. The plaintiff asserts as one specification of error that there has been “substantial colorable compliance with R.S. 33:4712”.

A review of the petition reflects no allegations of fact indicating any compliance whatsoever with the statute in regard to the alleged contract by the terms of which the City of Ruston was to convey the transformer to plaintiff.

Plaintiff further urges that he had a valid contract with the city even though the cited statute was not complied with. This argument is without merit. In Coleman v. Bossier City, 305 So.2d 444 (La.1974), the city entered into certain contracts with plaintiff without complying with statutes requiring advertisements and performances of other special conditions prior to entering into the contracts. The court held Bossier’s failure to comply with these statutory requirements resulted in the contracts being null, void and unenforceable.

Even in the absence of a valid contract with a municipality, a good faith party may be entitled to recover under the doctrine of unjust enrichment.

In Smith v. Town of Vinton, 216 La. 9, 43 So.2d 18 (1949), plaintiff, who performed work under a void contract, was held entitled to recover under the unjust enrichment doctrine for the amount actually expended for labor, materials, insurance, and equipment rental in doing work on the electrical distribution system of the Town of Vinton. He was denied the right to recover expenses, profit, and engineering fees.

In Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627 (1943), plaintiff supplied material to the State Highway Commission on void contracts and was permitted to recover actual cost of material without any allowance for profit or expenses incurred.

In Coleman v. Bossier City, supra, plaintiff was held entitled to recover under void contracts for his actual cost in the construction of water and sewerage facilities for the City under the unjust enrichment doctrine.

Plaintiff has alleged no out of pocket cost incurred by him similar to those found in Smith, Boxwell and Coleman. Plaintiff’s only alleged loss was the transformer which was nothing more than an additional profit which he was to receive in addition to the finder’s fee to be paid by the buyer. The cited cases all denied recovery of profit under the doctrine of unjust enrichment.

Plaintiff claims that Clary, as Utility Superintendent, had apparent authority to act for the city in this type of transaction, and that he could rely on Clary’s representation. In 56 Am.Jur.2d, Section 504, is the following:

“ * * * It is generally held that those dealing with the officers or agents of a municipal corporation must at their peril see to it that such officers or agents are acting within their authority, . . ..” (Emphasis added).

In Chandler and Chandler v. City of Shreveport, 162 So. 437 (La.App.2d Cir. 1935), in discussing the actions of the Mayor, the court stated:

“ * * * The powers and duties of municipal officers are fixed by law. Persons dealing with them do so at their peril, and must take notice of their limitations . [if] . . . not an ordinary administrative affair. . . .” Id. at pages 439, 440.

Plaintiff dealt with Clary at his peril. Clary could not enter into a binding contract with plaintiff on behalf of the City of Ruston without compliance with R.S. 33:4712.

Finally, plaintiff claims that his petition stated a cause of action against Clary personally under the provisions of Civil Code Article 3013:

“The mandatary is responsible to those with whom he contracts, only when he has bound himself personally, or when he has exceeded his authority without having exhibited his powers.”

Plaintiff’s petition fails to allege that Clary bound himself personally in connection with the alleged contract. The petition specifically alleges that Clary was authorized to negotiate and enter into binding agreements on behalf of the city. The petition contains no allegations that Clary’s actions as agent for the city exceeded his authority.

For the reasons set forth, it is clear that plaintiff’s petition contains no allegations of a cause of action against either defendant.

The decision of the trial court is affirmed at appellant’s cost.


text:
    Harold HARP d/b/a Power Plant Maintenance Co., Plaintiff-Appellant, v. TOWN OF LAKE PROVIDENCE and Board of Aldermen of the Town of Lake Providence, Defendants-Appellees.
    No. 13010.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    Wright & Joyce by Patrick H. Wright, Jr., Monroe, for plaintiff-appellant.
    Voelker, Ragland & Brackin by David C. Lensing, Lake Providence, for defendants-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff, Harold Harp, sued the Town of Lake Providence for $7,200, the purchase price of a rotor and fly wheel shaft (tail shaft) for a Fairbanks-Morse generator which he alleged was ordered from him. In the alternative, he sues for the actual cost of the equipment, $5,650, together with $350 for his expenses on the theory of unjust enrichment.

The trial court denied recovery on the basis of contract because there was no contract in compliance with the provisions of LSA-R.S. 38:2211 requiring an advertisement for public bids unless this requirement was dispensed with by the declaration of an emergency by the public body. The trial court also denied recovery on the theory of unjust enrichment on the basis that the town did not receive any benefit from plaintiff’s successful effort in providing the town with the generator tail shaft. Plaintiff appealed, seeking recovery on his alternative demand for unjust enrichment. We reverse and award plaintiff his actual out of pocket cost in acquiring the tail shaft.

The only issue is whether the Town of Lake Providence received a benefit from the tail shaft for its Fairbanks-Morse generator acquired at Harp’s cost.

Burton Stigen was employed early in 1973 by the Town as its power plant engineer. When he commenced his employment he found one of the generators in the power house not functioning. It was his opinion that the generator should be repaired because the Town needed the additional generating capacity. Stigen attended a regular meeting of the Mayor and Council of the Town in March or April, 1973, and sought authority to repair the defective generator. He left the meeting believing he had received such authority. Stigen concluded the generator needed a new tail shaft to effect its repair. He contacted several sources of supply and found that a new tail shaft would cost $25,000. He called Harp at his home in Sherman, Texas seeking a tail shaft at a lesser price. Harp came to Lake Providence about August 13, 1973, examined the tail shaft, and submitted a proposal to Stigen to acquire a tail shaft for the Town for $7,200. On August 31, 1973, while Harp was in Lake Providence taking exact measurements for fabrication of the shaft, he was given a written purchase order on the Town’s order stationery by Stigen to acquire the shaft for a recited price of $7,200. On September 11, Harp submitted suggested modifications of his original design by letter to Stigen. On September 17, Stigen, by letter to plaintiff on the Town’s stationery, acknowledged receipt of Harp’s letter of September 11, regarding alterations of the shaft and stated: “The proposed alterations on the extension shaft and crank shaft meet with the full approval of the City Counsel and myself.”

Plaintiff proceeded, at his expense, to have the tail shaft manufactured. It was delivered to the Town in March, 1974. The Town refused to pay for the shaft because no legal contract for its acquisition existed between Harp and the Town of Lake Providence. The Town’s records reflect no authorization in the minutes of any meetings of the Mayor and Council for the acquisition of the shaft. Harp concedes that the public contract law was not followed.

Where contracts with municipalities are illegal because of the failure to comply with the public contract statute recovery may still be had by the performing party when the parties are in good faith. The recovery is limited to the extent the municipality has benefited by the performance of the void contract. No recovery of profits, overhead or expenses are permitted. The award in such cases is based on the doctrine of unjust enrichment under Civil Code Art. 1965. See Smith v. Town of Vinton, 216 La. 9, 43 So.2d 18 (1949) and Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627 (1943). The Supreme Court in Coleman v. Bossier City, 305 So.2d 444, approved the cited cases, saying:

“In these decisions, contracts for work performed or for supplies and materials were held to be null and void because of noncompliance with the public contract law, which (as noted) requires advertisement and competitive bidding. Nevertheless, the supplier or contractor was allowed recovery against the public body, not on the contract itself (which was held to be null and void), but rather on an unjust enrichment theory, Civil Code Article 1965, for the actual cost of the materials, services, labor, etc., but without allowance for overhead and profits.” (Emphasis added) Id. at page 445.

Harp was in absolute good faith. He received a purchase order for the shaft from the Town, and confirmation of the order following his modification of the design. The Town’s power plant engineer, Stigen, was in good faith in placing the order. He discussed repair of the generator with the Council. One member of the Council testified he believed an emergency was declared, and that Stigen was empowered to order the tail shaft. One Council member acknowledged Stegin’s presence at the meeting and that Stigen was empowered to repair the generator, although he denies Stigen was empowered to make the subject purchase. Harp discussed the repair of the generator with two of the Council members and with the Mayor. He testified that the Mayor, in January, 1974, urged him to attempt immediate delivery of the equipment.

While plaintiff was in the process of having the shaft manufactured, the Town was preparing this generator for effective operation when the tail shaft became available. In connection with this work, the main shaft was removed from the generator and sent to Texas to be polished. It was then discovered the main shaft was cracked and could not be repaired, and it was junked. Because the main shaft was not available, no attempt was made to place the generator in service when the tail shaft was later delivered to the Town.

The initial cost of the generator in question was $300,000-$350,000. When Harp ordered the new tail shaft, he was unaware that the generator needed not only a tail shaft, but a main shaft. He had no reason to be aware of this fact and was not employed to evaluate the complete generator. Harp was called by Stigen only to submit a proposal to provide the generator with a tail shaft. The defective main shaft came to light only after it was examined in Texas. There is no evidence in the record that the cost of a main shaft would have been prohibitive. The generator needed a main shaft at the time Harp was directed by written order of the Town to provide the tail shaft. The Town now has a generator which needs no tail shaft.

Benefit is defined by Webster’s Dictionary as follows:
“Anything contributing to an improvement in condition; advantage.”
In American Law Institute, Ch. 1, 1 Unjust Enrichment, Restatement of Restitution
sjc sC »fe * * *
Comment (b) What constitutes a benefit.
“A person confers a benefit upon another if he gives to the other possession or some other interest in money, land, chattels, or choses in action, performs services beneficial to or at the request of the other, satisfies a debt or a duty of the other, or in any way adds to the other’s security or advantage. He confers a benefit not only where he adds to the property of another, but also where he saves the other from expense or loss. The word ‘benefit,’ therefore, denotes any form of advantage. . . .’’At page 12

The Town now has a generator, originally costing in excess of $300,000 which will require less expense to place into service than it did before Harp complied, in good faith, with the void contract. With a new tail shaft available, the generator has a value of at least $5,650 greater than it had before the new tail shaft was provided. This is an obvious benefit to the Town. Under the rationale of Smith, Boxwell, and Coleman, supra, Harp is entitled to recover the actual cost he incurred in acquiring the tail shaft for the Town, or $5,650. He is not entitled to profit or expenses.

In concluding that Harp cannot recover under unjust enrichment because the Town received no “benefit” from the tail shaft, the trial court, in our opinion, committed error.

For the reasons assigned, we reverse the trial court and award plaintiff Harold Harp judgment for $5,650, plus whatever costs may be legally assessable against the Town of Lake Providence. Costs of this appeal are also assessed against the Town of Lake Providence.

Reversed and rendered.


author: MARVIN, Judge.

text:
    The OUACHITA NATIONAL BANK IN MONROE, Plaintiff-Appellee, v. B. E. WILLIAMSON, Third-Party Plaintiff-Appellee, v. A. E. SOUTHERN, Jr., Third-Party Defendant-Appellant.
    No. 13011.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    Dimos, Brown & Erskine by J. N. Dimos, Monroe, for Third-Party defendant-appellant.
    Hudson, Potts & Bernstein by Robert C. Downing, Monroe, for plaintiff-appellee.
    Joe D. Guerriero Law Offices by Allan L. Placke, Monroe, for Third-Party plaintiff-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

The plaintiff bank sued Williamson on a promissory note. Williamson, as third-party plaintiff, sued Southern as third-party defendant on Southern’s written assumption of the note. The bank was awarded judgment on the main demand against Williamson. Williamson was awarded judgment on the third-party demand against Southern. Southern appeals. We affirm.

Williamson and Southern were engaged with others, as a corporation in utility construction business under the name of Southern and Williamson Construction Company, Inc. The corporation was not making a profit when the transaction at issue herein occurred. Williamson owned 3,000 shares of the corporate stock.

Sometime before April 4, 1975, Williamson executed to the bank a promissory note for $2,000. On April 4, 1975 (or April 6, 1975), Southern and Williamson executed this agreement, written and prepared by Southern:

“I, A. E. Southern, Jr., agree to assume a $2,000 note to Ouachita National Bank in the name of B. E. Williamson as full payment of 3,000 shares of stock of Southern & Williamson Construction Co., Inc.
“I further agree to assume all responsibilities that B. E. Williamson may have in connection with Southern & Williamson Construction Co., Inc.”

Williamson transferred his stock to Southern when the agreement was signed. When Williamson’s note became due, neither Williamson nor Southern paid it.

On May 26, 1975, Williamson obtained an endorser (apparently satisfactory to the bank) and he and his endorser executed a “new” note to the bank for $2,049.31 due 90 days from its date. This was the note sued on by the bank in November, 1975.

In his answer to the third-party demand Southern admitted:

“. . . the contractual agreement [of April 4, 1975] was entered into as alleged but shows that the responsibilities contemplated by the agreement concern only the responsibilities of B. E. Williamson insofar and only insofar as his duties for and on behalf of the corporation were concerned and had nothing whatsoever to do with any legal liability of the said B. E. Williamson to Ouachita National Bank or in connection with any other obligations contracted by third party plaintiff on behalf of the Southern & Williamson Construction, Inc. or otherwise.” Record, page 10.

Southern contends here that the trial court erred in not holding that the “new” note of May 26, 1975, effected a novation and released him from any obligation he may have assumed toward the bank by reason of the agreement of April 4.

Novation, as is discussed infra, is the extinguishment of an existing obligation and the substitution, in its place, of a new obligation. It is an affirmative defense which must be “affirmatively set forth” in the answer to a demand, or otherwise factually pleaded so as to afford “fair notice” of the defense to the plaintiff. (See C.C.P. Art. 1005; Cox v. Heroman & Co., Inc., 298 So.2d 848 (La.1974) and Paxton v. Ballard, 289 So.2d 85 (La.1974)). See also Campbell v. Clark, 43 So.2d 553 (La.App. Orl.1950). Southern’s pleading did not raise the affirmative defense of novation in express terms or by an assertion of sufficient facts which would afford “fair notice” to Williamson that Southern was attempting to raise such a defense. As we appreciate Southern’s answer, he is attempting to show that the written agreement was not intended to encompass the assumption of any personal debts of Williamson to the bank or to other creditors. The record shows that Williamson’s counsel objected to Southern’s attempt in the trial court to raise the affirmative defense of want or failure of consideration, as contrary to C.C.P. Art. 1005. The record does not show that Southern attempted to raise the affirmative defense of novation in the trial court, or that novation was argued to the trial court. We are not favored with what arguments, if any, were made below and we do not have before us any reasons, oral or written, assigned for the judgments below by the trial court.

The affirmative defense of novation was not properly before the lower court because of the circumstances we have mentioned. As an appellate court, we are authorized by C.C.P. Art. 2164 to render any judgment which is just and proper on the record, but this authority does not extend to our consideration on appeal of defenses which are required to be pleaded below and which may not be pleaded here. See Young v. Warner, 283 So.2d 547 (La.App. 1st Cir. 1973). Under the circumstances of this case, the affirmative defense of novation may not be raised for the first time on appeal.

Even should our holding be otherwise as to raising the defense of novation, appellant is found substantively lacking. The record clearly shows that the May 26, 1975 note sued on was merely a renewal and extension of Williamson’s earlier note to the same creditor. Williamson’s obligation to the bank was not extinguished by the May 26 note. Novation is not to be presumed and the intention to effect novation must be clearly shown by the terms of the agreement under which novation is contended or by a full discharge of the original debt. See C.C. Arts. 2185, 2187, 2190; Davis v. Welch, 128 La. 785, 55 So. 372 (1911); and Bank of Coushatta v. Coats, 170 La. 163, 127 So. 587 (1930).

Southern also complains that parole evidence was erroneously permitted below “to prove [a] promise to pay the debt of a third person” contrary to C.C. Art. 2278. Testimony relating to the April 4 agreement was properly admitted to show that the debt assumed was the same debt as evidenced by the May 26 note sued upon. The assumption of Williamson’s debt by Southern was in writing. This writing was prepared by Southern. If there be any ambiguity in the writing it is to be construed against Southern. C.C. Arts. 1955, 1957; Edwards v. Terminix, 292 So.2d 851 (La.App. 2d Cir. 1974).

At appellant’s cost, judgment is

AFFIRMED.


text:
    Fred A. NACKLEY, Plaintiff-Appellant, v. ZETCO, INC., Defendant-Appellee.
    No. 13013.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    En Banc. Rehearing Denied, Nov. 1, 1976.
    Nelson & Achee, Ltd., by Roland J. Achee, Shreveport, for plaintiff-appellant.
    Peters, Ward & Miller, by Frederic L. Miller, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Fred A. Naekley, the sole stockholder of Caddo Office Supplies, Inc., sold the principal assets of this corporation as a going' business to Zetco, Inc. as of October 1,1972. The sale included the accounts receivable, inventory, furniture, fixtures, vehicles, and prepaid advertising as reflected by an unaudited balance sheet prepared by Caddo’s accountants dated July 31, 1972.

Naekley subsequently received the remainder of the assets of the corporation consisting mostly of the proceeds of the sale and the cash on hand which was not transferred following a dissolution of the corporation.

A dispute thereafter occurred between Naekley and Zetco over the liability for an account payable owed to a supplier, Steel-case, Inc., for three delayed invoices totaling $7,993.70. Naekley contends that it was the intention of the parties that Zetco assume all accounts payable owed by Caddo known or unknown including the invoices in dispute. Zetco contends its intention was to assume only those accounts payable reflected in the accounting records of Caddo supporting the July 31, 1972 balance sheet and those accruing in the regular course of business subsequent to that date.

Naekley paid the amount of the disputed invoices to Steelcase, and brought this action against Zetco for recovery of the amount paid.

The trial court rejected Naekley’s demands, and he has appealed.

The invoices in question were for merchandise furnished by Steelcase in connection with a sale of furnishings by Caddo to television station KSLA in Shreveport in June, 1972. KSLA paid Caddo in full for the purchase on July 12,1972, which included the equipment furnished by Steelcase amounting to $7,993.70. Through oversight, Steelcase failed to invoice Caddo until February, 1973, long after the sale of the business to Zetco. The accounting procedure followed by Caddo was to note the indebtedness for merchandise purchased in the accounts payable ledger only upon receipt of the invoice from the supplier and after verification with a receiving report. Therefore, no entry existed on its accounting records at the time of the negotiation and completion of the sale to Zetco which gave any indication such an indebtedness existed.

The written agreement to buy and sell signed on September 30, 1972, provided for assumption of liabilities by Zetco as follows: ARTICLE 6. LIABILITIES OF SELLER.

6.01 Purchaser does not assume any of the debts, liabilities or obligations of seller except as follows:
(a) That certain item shown on the unaudited balance sheet of Seller prepared by Brooke, Mayo & Browning, Certified Public Accountants, dated July 31, 1972, as “Accounts Payable”. The total amount of such accounts payable to be assumed by Purchaser shall be subject to reduction (and payment thereof by Seller) only to the extent that the inventory value of the acquired assets (as set forth hereinabove) is less than $120,000.00

This trial court in its written reasons for judgment found this clause when construed with the remainder of the agreement to be unambiguous and limited the assumption of Zetco to those accounts payable traceable to the July 31st balance sheet.

Naekley contends the assumption provision is ambiguous and the trial court should have referred to the parol evidence to ascertain the true intent of the parties. He contends the negotiations for the purchase of his business were initiated by representatives of Zetco who were anxious to complete the transaction by October 1, 1972, and that the parties knew the specific amount owed to the various suppliers was not accurately reflected by the accounts payable shown on the July 31st balance sheet. Naekley contends this is self-evident as the accounts shown on the July 31st schedule would have been paid in the regular course of business prior to the signing of the purchase contract on September 30. He further contends the second sentence of sub paragraph (a) provides for protection of Zetco in the event the assumed liabilities were misrepresented to an extent that the net assets being acquired were reduced below $120,000, which did not occur. The precise inventory taken on September 31, less the debts actually paid by Zetco showed it received net assets of $136,839.48. To further support his position, Nackley shows the amount of accounts payable actually paid by Zetco was $39,619.32 whereas the July 31st balance sheet reflected the total to be only $30,895.47. This he contends constituted an acknowledgment by Zetco that its responsibility was not limited to the specific amount shown on the July balance sheet.

In resolving the issue before us, we think it is significant that although Zetco did actually pay accounts totaling more than the amount shown on the July balance sheet, all of the accounts paid were traceable to the balance sheet and were on the accounting records of Caddo during the period of negotiation. This is distinguishable from the disputed invoices which formed no part of the records and could not have been discovered by examination of the books of the company.

Article 6, 6.01 (a) of the agreement, as quoted above, must be construed along with the warranties and representations of the seller as follows:

6.02 Seller agrees that it will pay and discharge all of its debts, liabilities and obligations other than the debts, liabilities and obligations specifically assumed in Article 6.01. .
8.02 The balance sheet of the Seller for the period ended July 31, 1972, and prepared by Brooke, Mayo & Browning, Certified Public Accountants, fairly represents the financial condition of the Seller as of said date, and the results of its operations for the period ended, all in accordance with generally accepted accounting principles and practices consistently applied.
8.09 Since July 31, 1972, the Seller has not, and prior to the closing Date, it will not have, entered into any transaction other than the regular and normal course of business, nor sold, transferred or conveyed any portion of the acquired assets except in the regular course of business.

The testimony of all accountants who testified on behalf of either party is to the effect that the omission of the disputed invoices from the accounts payable on the July 31st balance sheet caused the accounts payable and the inventory to be understated by the amount of the total of the invoices.

The misstatement, although completely unintentional and unknown to Nackley because of the error of Steelcase, resulted in these disputed accounts payable accruing out of the ordinary course of business. In the normal cycle of business and accepted accounting methods, the invoices would have been received for this merchandise in July, and an account payable established to balance a credit to inventory or an account receivable from KSLA until payment was received for the retail sale. This did not happen, however, and payment of the retail sales price was made by KSLA to Caddo in July which Nackley ultimately received. Under Nackley’s argument, the delayed invoices would obligate Zetco to pay these disputed invoices without receiving a corresponding account receivable or credit to inventory. Such a result is inequitable and the provisions of the contract should not be interpreted to give this effect.

The judgment appealed is affirmed. Costs of this appeal are assessed to appellant.


text:
    Lynda JOHNSON, Plaintiff-Appellant, v. DeWanna Lawson POWELL et al., Defendants-Appellees.
    No. 13014.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    Joe D. Guerriero, Monroe, for plaintiff-appellant.
    James D. Sparks, Jr., Monroe, for appel-lee.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff, Lynda Johnson, brought suit against DeWanna Faye Lawson Powell, De-Wanna’s sisters, Barbara and Linda Lawson, and her brother, James Lawson, for damages for plaintiff’s injuries arising out of an altercation at the Ebony Lounge in Monroe on February 7, 1975. With no reasons given in the record or otherwise noted, the trial court found for the plaintiff against DeWanna Faye Lawson Powell only, awarding $666.84 for medical expenses and $250 for pain and suffering. Plaintiff appeals seeking in her specification of error only an increase in the amount of damages awarded to her for pain and suffering against DeWanna Lawson Powell.

The only issue is whether this court should increase the amount awarded plaintiff for pain and suffering.

There was animosity between Lynda Johnson and DeWanna Lawson Powell because DeWanna accused Lynda’s sister of charging clothes to her account. DeWanna had threatened to shoot plaintiff’s sister. DeWanna told Lynda not to go to the lounge. She went anyway. When DeWan-na walked into the lounge after Lynda’s arrival, Lynda made a statement heard by DeWanna and directed to her, “That’s the bitch.” DeWanna proceeded to the bar took a seat near the door where she was engaged in taking up “cover charges” from people entering the lounge. While DeWan-na was sitting at the bar, Lynda got up from a table and went to the bar at a location immediately adjacent to DeWanna and attempted to order some drinks from Michael Powell, the bartender and husband of DeWanna. Powell did not attempt to serve Lynda, and in fact, went to the other end of the bar. Lynda then struck DeWan-na with her knee and again called her a “bitch”. DeWanna immediately turned and grabbed Lynda in the back, apparently by the collar, whereupon Lynda turned and faced DeWanna and they engaged in an exchange of blows which resulted in Lynda being knocked or thrown to the floor with DeWanna on top of her. At this point the fight was broken up by bystanders.

Lynda was hospitalized for approximately one week for treatment of injuries received in the altercation.

The doctor’s report, offered in lieu of his testimony, reflected that Lynda complained of pain in the back, right leg, and knee. She was discharged from treatment February 28 asymptomatic. This was three weeks following the occurrence of the altercation.

The battery Lnyda inflicted upon De-Wanna with her knee was a minor one. The provocative, aggressive actions by Lynda are considerations that the trial court could have used in mitigation of damages. Morneau v. American Oil Company, 272 So.2d 313 (La.1973).

In Watts v. Aetna Casualty Surety Company, 309 So.2d 402 (La.App.2d Cir. 1975) at page 409, this court stated that the decision of “. . . when and how damages should be mitigated . . . [are questions peculiarly] . . . within the discretion of the trier of facts.”

While the trial judge assigned no reasons for the admittedly low award for pain and suffering, we are compelled to uphold his decision unless the record demonstrates that the trial court abused the “much discretion” provided for in fixing damages. Bitoun v. Landry, 302 So.2d 278 (La.1974). “The question is not whether a different award might have been more appropriate but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it.” Bitoun v. Landry, supra.

Since we find that the actions of Lynda Johnson could have warranted mitigation of'damages against her, we cannot say the award of $250 for pain and suffering was an abuse of discretion by the trial court. Affirmed.

Plaintiff, Lynda Johnson, is cast for cost.

Affirmed.


text:
    Phyllis WOODS, Plaintiff-Appellant, v. R. J. WOODS, Defendant-Appellant.
    No. 13015.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    En Banc. Rehearing Denied, Nov. 1, 1976.
    Emmons, Henry & Reeves by Joseph A. Reeves, Jr., Jonesboro, for plaintiff-appellant.

      Baker, Culpepper & Brunson by Donnie G. Brunson, Jonesboro, for defendant-appellant.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

In a divorce action not contested here, the lower court increased the monthly alimony award to the wife from $111 (made in separation proceedings about a year before) to $150, as “permanent” alimony. The wife appeals seeking an increase in the award of the lower court.

The pendente lite monthly alimony of $111 was based on the amount of a monthly note for an automobile the wife received in a subsequent community property settlement. In the instant case, the divorced husband’s disposable monthly income (after taxes and other mandatory deductions) was found to be $1,100. For permanent alimony determination, the divorced wife’s needs were found to be $500 per month. See Bernhardt v. Bernhardt, 283 So.2d 226 (La. 1973).

Mrs. Woods (the divorced wife) has income from two businesses which the court considered in reaching the eventual award. One business, ■ a sole proprietorship, is engaged in framing pictures and similar ob-jets d’art. It is not disputed that the framing business produces Mrs. Woods a net income averaging $50 per month. Mrs. Woods’ second business is a partnership selling antiques. She owns one-half of this business, which is encumbered with a $10,-000 debt. In the partnership’s 1974 tax return, this business showed a gross profit of $7,600. The net income (or ordinary income after deductions on the tax return) was $2,400 or $1,200 to each partner. These amounts are respectively taxable to each partner and it is readily apparent that Mrs. Woods’ income after taxes, from this business is something less that $100 per month.

The trial court misconstrued the tax return for the partnership. In written reasons for the award, the lower court recited Mrs. Woods’ income at $50 per month from the framing business and “$300 per month from the antique business.”

Considering that the monthly needs of Mrs. Woods were found to be $500 and her monthly income is not more than $150 per month, we amend the award made below to increase it from $150 to $350 monthly. We approve the lower court’s observation that the award may be modified as circumstances may warrant, such as an increase in the income of Mrs. Woods from her businesses.

At appellee’s cost, judgment as amended, is

AFFIRMED.


text:
    Henry G. JAMISON, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 13017.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.

      Mecom, Scott & Woods by B. J. Woods, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendants-ap-pellees.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

Factual issues only are presented in this appeal by plaintiff whose demands for damages sustained in an intersectional automobile collision were rejected below. We affirm the trial court.

Plaintiff, proceeding westerly, was making a left turn from Hollywood to proceed south on Jewella in Shreveport when he was struck by defendant who was traveling easterly on Hollywood approaching the intersection. The intersection is controlled by traffic signals of conventional type which allow a left turn with a green arrow for traffic proceeding westerly. When the green arrow is illuminated for a left turn, Hollywood traffic proceeding easterly is faced with red lights. The sequence and timing of the traffic signals were introduced into evidence. It is impossible for plaintiff to have been faced with a green arrow while defendant was faced with a green light.

Plaintiff contends that he turned left when the arrow was green while defendant contends she was faced with a green light. Plaintiff suffered severe and permanent injuries in the collision and sued defendant and her liability insurer.

On the liability issue, the lower court also heard testimony from the policeman who investigated the accident, from a college physics professor who testified as an expert in his field in answer to hypothetical questions, and from an eyewitness who was a passenger in an automobile parked near the collision site and who was called a “disinterested” witness by the lower court.

On appeal, plaintiff contends the lower court erred in its conclusions resolving factual and legal issues against plaintiff, and alternatively that it should be concluded here on the basis of the evidence that defendant had forfeited the right of way in her favor by excessive speed.

The lower court obviously was impressed by the disinterested eyewitness who corroborated defendant’s version of how the accident occurred. While the lower court did not comment on the testimony of the expert witness in its opinion, we are certain that the court performed its duty in considering this testimony and assigning appropriate weight thereto. The facts the expert was asked to assume were not in exact accord with the evidence before the court and we cannot say the lower court erred in not accepting plaintiff’s version of the accident on the basis of the expert’s testimony to hypothetical questions. Essentially, the trial court was faced with credibility issues as to speed and traffic signals.

“. . . where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973).
The lower court observed:
“The Court . . . is of the opinion that plaintiff failed to carry his burden to establish that he made the left hand turn on a green light. The Court is of the opinion . . . that the light was green for the defendant’s vehicle at the time she entered the intersection. Plaintiff has failed to establish that defendant was negligent in the operation of her vehicle.
“The Court believed the disinterested witness . . . when he stated that the light was green at the time of impact for traffic traveling east on Hollywood. Should the Court be in error in this conclusion . . . the Court feels it is clear that the plaintiff was contributorily negligent. The physical factors are such that the plaintiff’s turning maneuver was in so close proximity to defendant’s oncoming car that he turned in the face of that oncoming vehicle at a time that he knew or should have known that he did not have time to safely negotiate his driving maneuver. This is accentuated by the plaintiff’s own testimony where he states he did not see defendant’s vehicle until she actually collided with his and he could give no explanation for not observing the oncoming vehicle.” Opinion, pages 2 and 3.

We find no error in the lower court’s rejecting plaintiff’s demands.

At appellant’s cost, judgment is

AFFIRMED.


text:
    Joseph W. BELANGER et al., Plaintiffs-Appellees, v. EAST TEXAS SERVICE CORPORATION, Defendant-Appellee, (A. C. Black), Defendant-Appellant.
    No. 13019.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.
    Hal V. Lyons and James L. Fortson, Jr., Shreveport, for defendant, plaintiff in re-convention-appellant.
    Wiener, Weiss & Madison by John M. Madison, Jr., Shreveport, for plaintiffs, defendants in reconvention-appellees.
    Burnett, Harrison, Sutton & Walker by Bobby D. Sutton, Shreveport, for defendant, plaintiff in reconvention-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

The issue in this case is factual: Was there a prior sale of 100 shares of corporate stock to the appellant before plaintiff Be-langer sold 40 shares thereof to his five co-plaintiffs? The trial court answered no. We affirm.

In 1973, Belanger owned 100 shares of the capital stock of the defendant corporation (ETSC). In September, 1973, Belanger was dissolving various business associations he maintained with two other gentlemen in another corporation. A formal contract was executed to accomplish this but this contract did not mention Belanger’s stock in ETSC, although the contract was executed at ETSC offices in Shreveport. At that time, A. C. Black, appellant, purchased 2,200 shares of ETSC stock for $2.25 per share from one Jules LaMothe, who was one of Belanger’s associates. Black contends that Belanger agreed at that time to sell Black his 100 shares of stock at the same price but that Belanger has since refused to transfer the stock.

In November, 1973, Black notified ETSC that he had purchased Belanger’s stock and instructed ETSC to transfer ownership to Black when Belanger forwarded the share certificate to ETSC.

About one year later, ETSC received written direction from Belanger to transfer and apportion Belanger’s 100 shares among the six plaintiffs in various share amounts. When ETSC informed Belanger of Black’s earlier notification and of its refusal to make the transfer as Belanger directed, Be-langer and the other plaintiffs brought suit against ETSC to compel the transfer. ETSC converted this action into a concursus proceeding, alleging the conflicting claims of plaintiffs and of Black. Black then formally appeared and proceeded to litigate the issue.

Black contended below and contends here that the “sale” of Belanger’s stock was complete or “perfect” when there existed in September, 1973, a verbal “agreement” between him and Belanger for Black to purchase the 100 shares at $2.25 per share. La.C.C. Art. 2456. The trial court found that Black did not prove by a preponderance of the evidence that there was such an agreement and rejected his demands.

Four witnesses were called by Black, none of which were present at the time and place with Black and Belanger when the “sale” allegedly occurred. Belanger repeatedly denied agreeing to sell the 100 shares to Black and showed that Black had repeatedly pestered or bothered Belanger on several occasions in an attempt to get Belanger to agree to sell the stock to him at any price. The trial court expressly noted the “balance [of the evidence] is pretty close” and that it was “not satisfied” by a preponderance of the evidence that Belan-ger agreed in September, 1973, to sell his stock to Black.

We cannot say the trial court erred in weighing the evidence. The record presents a reasonable factual basis for the trial court’s conclusions. See Jamison v. Liberty Mutual Ins. Co., 338 So.2d 179 (La.App.2d Cir. 1976) and Ritter v. Leigh & Wiggins, Inc., 337 So.2d 281 (La.App.2d Cir. 1976).

At appellant’s cost, judgment is

AFFIRMED.


author: BOLIN, Judge.

text:
    GLOBAL UNDERWRITERS, INC., Plaintiff-Appellant, v. MERCHANTS INSURANCE AGENCY, INC., Defendant-Appellee, v. W. L. RAMBO DRILLING COMPANY, Third-Party Defendant.
    No. 13018.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 1976.

      Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for plaintiff-appellant.
    Sanders & Hennigan by Martin S. Sanders, Jr., Winnfield, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

Global Underwriters, Inc., a high risk insurance broker, sued Merchants Insurance Agency, Inc., for workmen’s compensation premiums due under an insurance policy which Global secured with Fidelity General Insurance Company for W. L. Rambo Drilling Company, a customer of Merchants. Merchants denied the debt and made Rambo a third party defendant. The lower court rejected plaintiff’s demands upon a finding that Global failed to prove it sold the Fidelity policy to Merchants. We affirm.

The issue is whether plaintiff proved its case.

Paragraph 2 of Global’s petition sets forth the basis of its demand:

That they did sell to Merchants Insurance Agency, Inc., certain insurance which was financed under a premium finance agreement on or about the 8th day of January, 1970, which installments have not been paid, as reflected by the statement which is attached and which there is a balance due thereon and owing in the amount of ONE THOUSAND EIGHT HUNDRED FORTY NINE AND 71/100 ($1,849.71) DOLLARS, all of which is shown more fully by the statement as well as the premium finance agreement, which is attached hereto and made a part hereof.

Contrary to Global’s petition, no finance agreement was attached nor was it filed in evidence. The only reference to Merchants in the Fidelity policy states Merchants was the “producer”.

In his written opinion the trial judge found the Fidelity' policy was issued to Rambo and that there was no evidence Global sold insurance to Merchants. We find the record supports this finding and, since it is elementary that a plaintiff must prove all the essential elements of his petition, Global’s suit must fall for lack of proof. Iennusa v. Rosato et al., 207 La. 999, 22 So.2d 467 (1945); Meyer v. State, Dept. of Public Safety License Control, etc., 312 So.2d 289, 292 (La.1975).

The judgment is affirmed at appellant’s cost.


text:
    ALPHONSE BRENNER COMPANY, INC., Plaintiff-Appellee, v. Leroy PHILLIPS, Defendant-Appellant.
    No. 13020.
    Court of Appeal of Louisiana. Second Circuit.
    Sept. 27, 1976.
    En Banc. Rehearing Denied, Nov. 1, 1976.

      Eugene J. Coen, Shreveport, for defendant-appellant.
    Cook, Clark, Egan, Yancey & King by Stephen R. Yancey, Shreveport, for plaintiff-appellee.

      Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

The issue in this case is whether or not a husband is liable for all or any portion of the balance owed to a furniture company for purchases made by his wife during the marriage. The lower court rendered judgment in favor of the furniture company against the husband for the entire amount. We amend the judgment so as to reduce the award.

While defendant and Joyce Phillips were married and living together Joyce opened a revolving charge account with plaintiff in 1970. Although only the wife signed the application for credit, this form reflected she was married to defendant.. The wife bought furniture from plaintiff on five different occasions from the date the account was opened until 1975. During this same period the store carried the account in the name of Mrs. Joyce Phillips, rendered statements addressed to her, and received regular payments from her. The husband made no purchases or payments and never promised to pay any of the debt.

The furniture bought before 1975 was placed in the family home and used by both defendant and his wife. He made no objections to the purchases made by his wife and the community enjoyed the benefit and use of the items purchased. The husband’s actions constituted consent and ratification and, even assuming these items were not necessaries, the husband is liable for this portion of the debt. Montgomery v. Gremillion, 69 So.2d 618 (La.App. 2d Cir., 1953) and cases cited therein.

On August 15, 1975, the wife bought four items the cost of which totaled $837.80. The delivery sheet shows the wife’s address to be different from the family home and testimony of other witnesses indicates the address was that of the wife’s mother. This sheet, which contained no information that the wife had purchased the goods on credit, stated the furniture would be called for in about two weeks. On August 29, defendant picked up this furniture, signed the delivery sheet, and delivered the furniture to his wife at her mother’s address. This was the only contact between the company and defendant. The furniture remained in the original crate until taken by the wife to Dallas, Texas. Defendant testified without contradiction that he and his wife were living separate and apart on the day he picked up this furniture and that he made the delivery only as a favor to his wife.

The evidence is uncontradicted that none of the items purchased in August, 1975 were things which the husband is required to furnish his wife for the convenience of life as provided in Louisiana Civil Code Article 120.

Under Article 2404 of the Louisiana Civil Code the husband is the head and master of the community and ordinarily he is the only one who may obligate the community. Two exceptions to this rule are, (1) when the wife acts as an agent of the community, and (2) when the obligation is ratified by the husband. (Montgomery v. Gremillion, supra). It is contended the husband ratified the August 15 purchase by picking up the crated furniture and signing the delivery ticket. This evidence is not sufficient to warrant a finding the husband ratified his wife’s purchases.

The furniture company contends the husband’s actions in allowing the wife to make purchases on behalf of the community for a period of several years constituted her the agent of the community. In this case we find this conclusion is unjustified. As previously stated, all of the transactions were between the furniture company and defendant’s wife. There is no evidence the company knew the husband used any of the furniture. With the possible exception of signing for and picking up the furniture in 1975, the husband never did anything that would lead plaintiff to believe he was holding his wife out as agent for the community. There is no evidence this one act in any way influenced plaintiff to extend the wife credit as an agent for the community. This case is factually different from Alphonse Brenner Co., Inc. v. Dickerson, 283 So.2d 849 (La.App. 2d Cir., 1973).

We find the wife had no authority, either express or implied, to bind the community in making the purchase in August, 1975. Watson v. Veuleman, 260 So.2d 123 (La. App. 3d Cir., 1972).

The judgment is amended by deducting $837.80 from the total award. It is further amended to delete the vendor’s privilege on the furniture listed in items (h) through (k) of the judgment.

As thus amended the judgment is affirmed. Cost of this appeal is assessed against the plaintiff.


text:
    Michael R. McCULLOCH v. STATE.
    8 Div. 818.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Daniel G. McDowell, Russellville, for appellant.
    William J. Baxley, Atty. Gen., and Joel L. Dillard, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found defendant (appellant) guilty of burglary in the second degree; the court fixed his punishment at imprisonment in the penitentiary for five years and sentenced him accordingly.

. According to the testimony of Alvin T. Bradford, owner of the Bradford Drug Store in Russellville, he went to the drug store on the night of November 1, 1975, unlocked the front door, went in and saw two people inside with ski masks on. He promptly turned around and locked the door; he then heard a noise and went into the alley behind the store; he then saw a person running away. He attempted to obtain assistance from passers-by but did not succeed. He heard another noise and went into the alley again, stepped around the corner and saw another person, whom he took captive and turned over to the police. The captive was positively identified on the trial by the testimony of one of the officers as the appellant. Mr. Bradford further testified that he went back into the alley and observed that the police had captured another individual, one Spencer Burns, who had a ski mask on, rubber gloves and a sack containing drugs from the drug store of the value of between $4,000 and $5,000. Mr. Bradford said that upon investigation of the inside of the store he found a manhole in the roof that had been broken into. The testimony of Mr. Bradford, corroborated in its many details by some of the officers in their testimony, fully established the corpus delicti of the crime charged in the indictment.

Mr. Bradford did not identify defendant as one of the burglars in the store, but the testimony of one of the officers identifying defendant as the person apprehended by Mr. Bradford and delivered to the officers was undisputed. In addition, one of the police officers stated that after arrival of the prisoners at the jail he, the witness, observed defendant with a ski mask in his hand, not the ski mask found in the possession of Burns. Furthermore, there was testimony that before the officers left with the prisoners from the scene of the crime and while there was some discussion among the officers as to the possibility of there being a third person in the vicinity, defendant, as well as Burns, was heard to say, “There was nobody else with us.”

At the conclusion of the State’s case, defendant moved to exclude the testimony. The court overruled the motion, and the defense immediately rested. Appellant does not contend that the motion to exclude the evidence should have been granted. No reasonable contention can be made that the evidence was not more than ample to warrant a verdict finding defendant guilty.

A point is made, without any citation of, or reference to, authority, to the effect that the court was in error in admitting in evidence ski masks, the rubber gloves and the bag found in the possession of Burns when Burns was apprehended. As previously indicated, the evidence was sufficient to warrant a finding that there was a burglary and that defendant was a participant in the burglary. The mere fact that the particular items of evidence were found on the other participant does not insulate them from admissibility. They were portions of the circumstances that combined to establish defendant’s criminal intent in breaking and entering the store. It is not contended by appellant that they were rendered inadmissible because they were found after the consummation of the alleged burglary, but to such a conceivable contention, the answer is that they were properly admitted in evidence.

“The State may prove against the accused, the existence after the crime, of a physical fact which tends to show his coconspirator’s guilt:
“Dawkins v. State, 20 Ala.App. 54, 100 So. 619 (stealing hog; that part of the hog meat was found at accused’s house and part at coconspirator’s, admitted); Lancaster v. State, 21 Ala.App. 140, 106 So. 609, cert. den. 214 Ala. 2, 106 So. 617 (homicide; the murderers got muddy in committing the crime; muddy clothing found in coconspirator’s possession, admitted); Jones v. State, 18 Ala.App. 626, 93 So. 332 (distilling; ‘still slop’ on coconspirator’s pants soon after the raid admitted).” McElroy, Law of Evidence in Alabama, § 195.-03(8).

During closing argument for the prosecution, the following occurred:

“MR. JOLLY: He was guilty and he knew he was. He told them so, on that night.
“MR. McDOWELL: I object to that and I move to exclude that.
“THE COURT: All right, I sustain. “MR. McDOWELL: At this time, I would like to make a motion for a Mis-Trial based on the District Attorney’s statement that the defendant told the officers he was guilty.
“THE COURT: Well, I overrule that Motion, but I’ll sustain the objection to the statement that he told he was guilty and Ladies and Gentlemen, disregard that statement.”

To what counsel for the prosecution was referring, we are uncertain. We do not understand, however, that he was making a positive statement of fact to the effect that defendant had confessed the crime. More likely, it seems to us, he was drawing the conclusion contained in what he said from the action of defendant soon after the burglary and his statement, “There was nobody else with us.” Even so, the trial court probably took the better position in sustaining defendant’s objection excluding the statement from the consideration of the jury. The incident did not justify the declaration of a mistrial.

Another incident complained of in the closing argument of the prosecution is shown by the following:

“MR. JOLLY: Most of the facts in this case are not disputed.
“MR. McDOWELL: I want, at this time, to make a Motion for a Mis-Trial based on the District Attorney’s Argument as to the disputed facts in this case, which in effect was a comment on the defendant’s failure to testify.
“THE COURT: Overruled.”

Appellant’s contention is answered adversely in Farr v. State, 54 Ala.App. 80, 304 So.2d 898, 904, as follows:

“Title 15, Section 305, Code of Alabama 1940, as last amended does not prohibit a prosecutor from drawing reasonable inferences from the evidence presented in a case, and statements to the effect that the evidence is uneontradicted or unde-nied are not prohibited by the statute. Swain v. State, 275 Ala. 508, 156 So.2d 368; Sellers v. State, 48 Ala.App. 178, 263 So.2d 156; Whistenant v. State, 50 Ala. App. 182, 278 So.2d 183.”

Failing to find any error in the record prejudicial to defendant, we conclude that the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.

CATES, P. J., not sitting.


author: OVERTON, Chief Justice. ROBERTS, Justice

text:
    SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Petitioner, v. Eric COX, a minor, By and Through his guardian and next friend, J. W. Caldwell, Respondent.
    No. 47139.
    Supreme Court of Florida.
    May 19, 1976.
    Rehearing Denied Oct. 26, 1976.
    Michael N. Brown of Allen, Dell, Frank & Trinkle, Tampa, for petitioner.
    R. J. Beckham of Beckham & McAliley, Miami, for respondent.
   OVERTON, Chief Justice.

This cause is before us on petition for certiorari to review a decision of the Second District Court of Appeal reported at 308 So.2d 154 (Fla.App.2d 1975). There is conflict with the First District Court of Appeal’s decision in Seaboard Coast Line Railroad Company v. Arnett reported at 303 So.2d 653 (Fla.App. 1st 1974). We have jurisdiction to harmonize these decisions.

The legal issue to be decided concerns the applicability of estoppel by judgment.

The circumstances of this case are as follows. In May of 1972 the parents of the respondent, Eric Cox, were passengers in an automobile involved in an auto-train collision. Both were killed. Prior to the action now before this Court, the respondent Eric Cox, a minor, brought a suit through his guardian for the wrongful death of his mother. He recovered a judgment which was molded from a special verdict submitted to the jury in anticipation of a requirement to apportion damages among joint tortfeasors stemming from Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). The jury found total damages of $300,000 and that the defendant, Seaboard Coast Line Railroad Company, was 85% at fault. The decedent parents were found not to have been at fault, and the remaining 15% of liability apparently was attributable to the driver of the automobile who was not a party to the action. The judgment was appealed by Seaboard to the District Court of Appeal, which affirmed. There was no cross-appeal concerning the submission of a special comparative verdict.

Subsequent to that action respondent Eric Cox brought the instant suit for the wrongful death of his father. Upon the respondent’s motion, the trial court granted a partial summary judgment against the petitioner Seaboard Coast Line Railroad Company on the issue of liability, holding that estoppel by judgment applied. Petitioner Seaboard took an interlocutory appeal, asserting both error in granting the partial summary judgment, or, in the alternative, contending the trial court erred by not expressly limiting recovery to 85% of damages proved. The District Court affirmed the partial summary judgment, applying estoppel by judgment, and citing this Court’s decision in Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591 (Fla. 1956). In doing so, the District Court receded from its own prior decision in Culloden v. Music, 226 So.2d 240 (Fla.App.2d 1969).

On the assertion that recovery should be limited to 85% of the damages established, the District Court held :

“ . . . [T]he plaintiff is estopped from relitigating the determination that the defendant was not liable to the extent of 15%. The first judgment is final, and even if the apportionment procedure on which it was based was in error, it is nevertheless that judgment upon which the estoppel is predicated.” 308 So.2d at 157.

There is conflict with the decision of the First District Court of Appeal in Seaboard Coast Line Railroad Company v. Arnett, supra. The First District in the Arnett case refused to apply estoppel by judgment citing as authority the Second District decision in Culloden v. Music, supra, from which the Second District receded in the decision below. The factual situation there is distinguished from the instant case only by the fact that the railroad defendant prevailed. Regardless of which side prevails, estoppel by judgment must be evenhandedly applied.

The petitioner Seaboard in the instant case contends that estoppel by judgment does not apply to different causes of action, such as those arising from deaths of different persons, even though the parties are identical and the incidents giving rise to the claim are the same. Estoppel by judgment requires (1) that the real parties in interest in both suits be identical, and (2) that the issue in the second action that is sought to be estopped from relitigation be identical to necessary and material issues resolved in the first suit. There are no factual differences in the causation of the deaths of the two parental victims in this case.

Petitioner asserts that there is no identity of parties since the action is derivative in nature and stems from deaths of different persons. We disagree. There is no cause of action at common law for a decedent. The basis for such an action is statutory. Martin v. United Security Services, Inc., 314 So.2d 765 (Fla. 1975); Louisville & N. R. Co. v. Jones, 45 Fla. 407, 34 So. 246 (1903). The right of action belongs to a living person. We are unpersuaded by the contentions of the petitioner. This Court has previously applied estoppel by judgment in situations where the actions were derivative. See Shearn v. Orlando Funeral Home, supra; Rehe v. Airport U-Drive, Inc., 63 So.2d 66 (Fla. 1953); Epps v. Railway Express Agency, 40 So.2d 131 (Fla. 1949). See also Tuz v. Edward M. Chadbourne, Inc., 290 So.2d 547 (Fla.App. 1st 1974). We agree with the opinion of Judge Grimes in the instant case and in particular his interpretation of the applicability of Shearn and the fact that Youngblood v. Taylor, 89 So.2d 503 (Fla. 1956), did not modify our Shearn decision.

We conclude that there is no merit in petitioner’s argument and that it is bound by the result of the first action.

We further hold that the respondent may not now contest the propriety of applying the percentage of liability determination made by the jury in the first suit. The respondent allowed the first judgment to become final without attack, and he cannot now collaterally attack that result. The petitioner’s 15% nonliability as determined by the jury in the first trial is therefore applicable in the second action for damages.

The decision of the District Court of Appeal is approved and the petition for certiorari is discharged.

It is so ordered.

BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ROBERTS, J., dissents with an opinion.

ADKINS, J., dissents.

ROBERTS, Justice

(dissenting).

This Court previously held in Youngblood v. Taylor, 89 So.2d 503 (Fla.1956), that,

“To illustrate, if two persons wholly unrelated are passengers in a motorcar that becomes involved in an accident, only one set of circumstances arises as a basis for recovery. But it does not follow that there is but one cause of action for each of the injured persons has the right to sue and the action of one is not determined by the adjudication of the action of the other.
“It might appear in the present controversy that the ‘facts essential’ to the maintenance of both actions were the same because not only was there a single mishap but a lone person was injured; that, therefore, one element of res judi-cata is present; and that by the same token an element of estoppel by judgment is present because the ‘precise facts’ seem to have been adjudicated.”

Subsequently in Tuz v. Chadbourne, Inc., 310 So.2d 8 (Fla.1975), this Court reiterated the above and asserted that nothing stated in the decision before it altered the holding in Youngblood, supra.

      . Art. V, § 3(b)(3), Ma.Const.


author: OVERTON, Chief Justice.

text:
    ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Petitioner, v. Inez WILSON, Respondent.
    No. 47278.
    Supreme Court of Florida.
    May 19, 1976.
    Rehearing Denied July 9, 1976.

      Robert P. Gaines of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for petitioner.
    R. P. Warfield of Levin, Warfield, Graff, Mabie & Rosenbloum, Pensacola, for respondent.
   OVERTON, Chief Justice.

This cause is before us on petition for writ of certiorari to review a decision of the First District Court of Appeal reported at 309 So.2d 604 (Fla.App. 1st 1975). Conflict is asserted with Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We hold the District Court misapplied the rules allowing retrial under the doctrine of comparative negligence as set forth in Hoffman, and therefore conflict certiorari jurisdiction vests in this Court.

In December 1970, respondent’s husband was killed when his automobile collided with petitioner’s train. Respondent instituted two tort actions, one as administratrix of decedent’s estate, the other individually. The administratrix’s action proceeded first, and a jury verdict and judgment were entered for the petitioner railroad on April 25, 1972. The case was affirmed by the First District on July 24, 1973. Wilson v. St. Louis & San Francisco Railroad Company, 280 So.2d 722 (Fla.App.1st1973), cert. denied, 287 So.2d 321 (Fla.1973).

In the second action for individual damages, the trial court on July 10, 1972, granted a summary judgment for the petitioner railroad holding the respondent was estopped by the earlier judgment in the ad-ministratrix’s action. Notice of appeal was timely filed, but the respondent did not proceed until the cited Supreme Court cer-tiorari review in the administratrix’s action was completed in November 1973.

During that dormant period, this court on July 16, 1973, held comparative negligence replaced contributory negligence as the law of Florida. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

The appeal of the instant action in the District Court was commenced in October 1972. The respondent first raised the issue of the changed negligence doctrine barring the applicability of estoppel by judgment in his briefs filed after February 1974. The comparative negligence issue was not specifically raised in the assignments of error or in any other manner in the trial proceedings.

The First District held estoppel by judgment would apply to this situation but for the change from contributory negligence to comparative negligence as set forth in Hoffman v. Jones, supra. The District Court found the trial in the first adminis-tratrix’s action included the issue of contributory negligence. Inherent in its conclusion also was a finding that comparative negligence was appropriately made a question for appellate review.

In our simultaneous decision in Seaboard Coast Line Railroad Company v. Cox, 338 So.2d 190, we stated:

“. . . estoppel by judgment requires (1) that the real parties in interest in both suits be identical, and (2) that the issue in the second action that is sought to be estopped from relitigation be identical to necessary and material issues resolved in the first suit. . . .”

The real parties in interest are the same. The principal question we must determine is whether the issues in the two actions are identical. To answer this question, we must determine whether comparative negligence was properly and appropriately made a question of appellate review since this instant case was on appeal at the time of the Hoffman decision. The issue of comparative negligence was never raised before the trial court. Assertion of the comparative negligence issue for the first time in the briefs on appeal does not meet the requirement that the issue has appropriately been made a question of appellate review as required by category four of the criteria for reviewability as set forth in Hoffman v. Jones, supra. We hold that for the change in our negligence law to change the issue for determination and thereby prevent es-toppel by judgment, it must be properly made an issue in the trial or appellate courts as required in Hoffman v. Jones, supra. Such was not done in the instant cause and estoppel by judgment applies.

The decision of the District Court is quashed and the judgment of the trial court is reinstated.

It is so ordered.

BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ROBERTS and ADKINS, JJ., dissent.

      . Art. V, Sec. 3(b)(3), Fla.Const.; See Wale v. Barnes, 278 So.2d 601 (Fla.1973) ; Rinker Materials Corp. v. City of North Miami, 286 So.2d 552 (Fla.1973) ; Guerrero v. State, 289 So.2d 396 (Fla.1974).


text:
    SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Petitioner, v. Paul J. ARNETT, Jr., Respondent.
    No. 46771.
    Supreme Court of Florida.
    May 19, 1976.

      Clark W. Toole, Jr., and Gary A. Bubb of Toole, Taylor, Moseley and Milton, Jacksonville, for petitioner.
    Arthur T. Boone and Gordon H. Lee, Jacksonville, for respondent.
   OVERTON, Chief Justice.

This cause is before us on petition for writ of certiorari to review a decision of the First District Court of Appeal reported at 303 So.2d 653 (Fla.App. 1st 1974). It concerns the application of estoppel by judgment. There is conflict with the Second District Court’s decision in Seaboard Coast Line Railroad Company v. Cox, 308 So.2d 154 (Fla.App. 2d 1975), approved by this Court in Case No. 47,139, 338 So.2d 190, rendered simultaneously with this cause. There is also conflict with Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591 (Fla.1956). We have jurisdiction.

On March 1, 1970, Paul Joe Arnett and Carol Arnett, minor children of Paul J. Arnett, Jr., were fatalities in a train-auto collision. The auto in which they were passengers was driven by a third individual not involved in the instant cause. The respondent father, Paul J. Arnett, Jr., brought two tort actions. The first was commenced on June 8, 1970, for the death of Carol, naming the auto driver, the train engine operator, and petitioner Seaboard Coast Line Railroad Company as defendants. A jury verdict in this first action was returned finding the auto driver liable in the amount of $10,000, but exonerating petitioner Seaboard. The trial court entered judgments on the verdict on January 15, 1971.

Respondent brought the second action which is the subject of this review on March 11, 1971, for the death of his son, Paul Joe. The complaint names only the petitioner Seaboard as defendant. At trial Seaboard sought to interpose the defense of estoppel by judgment, but respondent successfully moved to strike the defense. Seaboard then took a petition for common law certiorari to the First District Court of Appeal seeking review of that order. The First District denied certiorari, holding estoppel by judgment was not a defense for petitioner Seaboard because the two actions arose from the deaths of two different persons. The court cited as authority Culloden v. Music, 226 So.2d 240 (Fla.App. 2d 1969), since receded from by the Second District in Seaboard v. Cox, supra.

We disagree. Our simultaneous decision in Seaboard Coast Line Railroad Company v. Cox, Case No. 47,139, Fla., 338 So.2d 190, controls. If estoppel by judgment applies when the plaintiff prevails in the first action, it also applies when the defendant prevails.

The change in the applicable tort law from contributory to comparative negligence does not prevent use of estoppel by judgment in the present factual situation. This contention was first raised by the respondent in briefs before this Court. The record reflects that the defense of contributory negligence was not an issue in the first trial. The only possible basis for the finding of Seaboard’s nonliability by the jury in the first trial was a factual determination that the petitioner Seaboard was not negligent.

When the real parties in interest are the same and the identical issue in the first trial was properly determined, that determination may be relied upon by the parties to estop later relitigation between them. Seaboard Coast Line Railroad Company v. Cox, supra, and Shearn v. Orlando Funeral Home, Inc., supra. Since contributory negligence was not an issue in the first trial, respondent’s attempt to evade estoppel by judgment, founded as it is on the change to comparative negligence, is without merit.

The decision of the District Court is quashed, and the cause is remanded for disposition consistent with this opinion.

It is so ordered.

BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ROBERTS and ADKINS, JJ., dissent.

      . Art. V, § 3(b)(3), Fla.Const.