author: CULPEPPER, Judge. MILLER, Judge

text:
    PEOPLES FURNITURE AND GIFT, INC., Plaintiff and Appellee, v. CARSON HICKS AND FRIEDRICHS REFRIGERATION, INC., Defendant and Appellant.
    No. 5309.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 1976.
    Brittain & Williams by John G. Williams, Natchitoches, for defendant-appellant-appellee.
    Offices of Gerard F. Thomas, Jr. by Edwin Dunahoe, Natchitoches, for plaintiff-appellee-appellant.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

A panel of three judges of this Court previously decided this case, 326 So.2d 919 (3rd Cir. 1976). In our previous decision, the judgment of the trial court was modified and there was one dissent. However, the three member panel of this Court unanimously agreed to each modification of the trial court judgment. The dissent sought only to further modify the trial court decree. The dissenting judge did not agree with the trial judge in any respect. Under these circumstances, the original three judge panel was of the opinion that it was not necessary to reargue the case before a panel of five judges as provided in Section 11 of Article V of the Louisiana Constitution of 1974.

Following our previous decision, counsel for defendants applied to our Supreme Court for writs, contending that the case should have been reargued before a panel of five judges. On April 7, 1976, our Supreme Court, 329 So.2d 754, granted the writ and ordered reargument in the Court of Appeal before a panel of five judges in accordance with the cited provisions of the Constitution of 1974.

On May 19, 1976, the case was reargued in this Court before a panel of five judges, in compliance with the order of our Supreme Court. A majority of the members of the five-judge panel now adopt as the decision of this Court the majority decision rendered by the three-judge panel on February 26, 1976, as reported in 326 So.2d 919.

For the reasons assigned, the majority decision previously rendered by a three-judge panel of this Court on February 26, 1976 and reported in 326 So.2d 919 is reinstated and made the final decision of this Court.

PREVIOUS MAJORITY DECISION OF THIS COURT REINSTATED.

MILLER, J., dissents and assigns written reasons.

HOOD, J., dissents for the reasons assigned by MILLER, J.

MILLER, Judge

(dissenting).

Peoples Furniture has used Friedrichs’ air conditioner for more than two years. The sale has been rescinded not because the unit was defective, but because Fried-richs and Hicks declared to Peoples Furniture that the unit, which was unrated at the time, was a twenty ton unit when, in fact, it was later rated at sixteen tons.

This suit resulted when the store owned by Peoples Furniture was not adequately cooled after the Friedrichs’ air conditioning unit was installed. Peoples Furniture understood the Friedrichs’ unit alone was not adequate to cool the furniture store. Fleming’s testimony to that effect was quoted at 326 So.2d 924. In written reasons, the trial court held as a fact that Friedrichs’ representative . . recommended a canopy be erected on the front of the building to shade (the open glass front in) that area, and suggested that the ceiling be lowered and insulated.” These changes were not undertaken, and according to the record, this wasn’t done because it was too costly to Peoples Furniture. Tr. 52, 3. It is ironic that Peoples Furniture’s refusal to make these improvements and its refusal to maintain and operate its other four air conditioners leads to a recovery of some $7000+ on a $4,734.32 purchase. This recovery is in addition to the use it had of Friedrichs’ sixteen ton air conditioner for more than three summers.

Furthermore, as noted in the dissent, 326 So.2d 919 at 924, Peoples Furniture knew the Friedrichs unit alone would not cool its building. Peoples Furniture was obliged to operate its other four air conditioning units, three of which were on top of the store and one out back. According to Hicks (Tr. 34, 5) only two of these four units were working, and maybe only one was working properly. The compressor was out of one of the remaining four units and the fan motor did not work in another.

The record leads me to conclude that 1) had Peoples Furniture maintained and used its other four air conditioners (and they do not contend Friedrichs’ unit replaced these units), and 2) had Peoples Furniture met what the trial court found to be the recommendations — placed an awning over the glass storefront, lowered the ceiling, and insulated the ceiling — then Peoples Furniture might have obtained adequate cooling. And the fact that Peoples Furniture was liquidating its business when it sought to rescind this sale might be relevant. I respectfully submit the equities of the situation require a different result.

The ultimate decision in this case does not rest on defects in the equipment. The defects in the equipment were promptly and satisfactorily repaired. When suit was filed and at trial the air conditioner was operating satisfactorily as rated. Tr. 58A. Peoples Furniture’s Fleming so testified at Tr. 44, and this was not contradicted by Wingo, the other owner of Peoples Furniture.

In a redhibitory action, the purchaser seeks rescission of the sale and a return of the purchase priee for one of two reasons —either because a defect in the thing sold renders it absolutely useless, or its use so inconvenient, that the buyer would not have purchased it had he known of the defect (LSA-C.C. art. 2520); or because a declaration was made by the seller (in bad faith, LSA-C.C. art. 2547, or in good faith LSA-C.C. art. 2529) that the thing had some quality it did not have, and that quality was the principle motive for making the purchase. In either case, the court may decree merely a reduction in price if the evidence so warrants (LSA-C.C. art. 2543). Further, appellate courts are authorized to render a judgment which is just, legal, and proper upon the record on appeal (LSA-C.C.P. art. 2164).

LSA-C.C. art. 2529 was probably intended to widen the scope of the redhibitory action to include the case where the object sold lacked a certain quality the vendor had declared it to possess, even though the lack of such quality did not constitute a “vice or defect in the thing sold.” 42 Tul. L.Rev. 374 at 377.

In redhibitory actions, LSA-C.C. art. 2543 permits a decree granting a reduction of the price, if the circumstances of the case so warrant. In every redhibitory action if the evidence establishes only a partial failure of consideration, a reduction in the purchase price may be granted to the buyer. Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 at 802 (La.App. 1 Cir. 1975). See also Wolfe v. Henderson Ford, Inc., 277 So.2d 215 (La.App. 3 Cir. 1973); Tauzin v. Sam Broussard Plymouth, Inc., 283 So.2d 266 (La.App. 3 Cir. 1973); and Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4 Cir. 1974).

Although the reduction in price in these cases was decreed by the trial court and affirmed on appeal, the law is applicable here and we have authority to amend the trial court judgment under LSA-C.C.P. art. 2164.

For the reasons assigned here and in the dissent, 326 So.2d at 924, I would grant a reduction in the purchase price as permitted by LSA-C.C. art. 2543 together with attorney’s fees as permitted by LSA-C.C. art. 2547.

I respectfully dissent.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Emily BERTRAND, as Administratrix of the Estate of Bradley Keith Bertrand, etc., Plaintiffs and Appellants, v. STATE FARM FIRE & CASUALTY COMPANY et al., Defendants and Appellees.
    No. 5470.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied July 1, 1976.
    Granted in Part Sept. 29, 1976.

      Hunt, Godwin, Painter & Roddy by David Painter, Lake Charles, for plaintiffs and appellants.
    Stockwell, St. Dizier, Sievert & Viccellio by John S. Bradford, Lake Charles, for defendants and appellees.
    Before HOOD, CULPEPPER and PETERS, JJ.
   CULPEPPER, Judge.

This is one of four consolidated cases for the wrongful deaths of a child and his maternal grandfather. The two year old child, Bradley Keith Bertrand, drowned in an oxidation pond alleged to be an attractive nuisance. At the funeral, two days after the child’s death, his maternal grandfather, Mr. George E. Bertrand, Sr., collapsed and died of a heart attack caused by emotional distress.

Four suits were filed. In No. 5470 on the docket of this Court, Mrs. Emily Bertrand, widow of George E. Bertrand, Sr., seeks damages individually and as ad-ministratrix of the estate of her deceased husband, for the wrongful death of the child. They were in the process of adopting the child, having obtained an interlocutory decree of adoption but not having secured a final decree. Additionally, Mrs. Emily Bertrand sues as administratrix of the estate of the deceased child for damages due for his wrongful death.

In companion suit No. 5471, 333 So.2d 326, Mrs. Emily Bertrand sues individually and as administratrix of the estate of George E. Bertrand, Sr. for damages resulting from his wrongful death. Joining in that suit as plaintiffs are Mrs. Emily Bertrand, as natural tutrix to her two minor children, and five major children of George E. Bertrand, Sr., these children seeking damages for the death of their father.

In companion suit No. 5476, 333 So.2d 327, Mrs. Sallie Bertrand LeBlanc, seeks damages for the wrongful death of her father, George Bertrand, Sr.

In suit No. 5477, 333 So.2d 327, Mrs. Sallie Bertrand LeBlanc, the natural mother of the deceased child, seeks damages for the wrongful death of the child.

The defendants in each of the four consolidated cases are Mr. Robert James Chandler, owner of Linnwood Arms Apartments and of the oxidation pond in which the child drowned, and his liability insurer, State Farm Fire & Casualty Company.

In each suit, the district judge sustained the “exception of no right and no cause of action filed by defendants” and dismissed plaintiffs’ suit. Plaintiffs in each case appealed.

The issues are: (1) Do the plaintiffs respectively have a cause of action for the death of Mr. George E. Bertrand, Sr., who died of an alleged heart attack resulting from emotional distress at the funeral of the child? (2) Do the natural mother and/or the adopting parents have a right of action for the wrongful death of the child?

For the purposes of the exception of no cause of action and the exception of no right of action, there is no dispute as to the facts set forth in the allegations of the respective petitions. These facts show that the minor child, Bradley Keith Bertrand, was born on April 20, 1972. The natural mother, Sallie Lea Bertrand, was 16 years of age and unmarried. The father is unknown. The mother later married a man named LeBlanc, but that is not material to the issues.

On October 5, 1973, the mother appeared before a notary public and two witnesses and executed an act surrendering her child to her parents, George Earl Bertrand, Sr. and Emily Bertrand, for adoption as provided by the laws of the State of Louisiana. On November 26, 1973, an interlocutory decree of adoption was signed by the juvenile judge. No final decree of adoption was ever entered.

On March 31, 1974, several members of the family were visiting in the home of Mr. and Mrs. George E. Bertrand, Sr. at Linn-wood Arms Apartments in Moss Bluff, Louisiana. On that occasion, the child in question had been playing behind the apartment house with two other children. He was missed, and, after a search, he was found drowned in the oxidation pond.

The petitions allege that the oxidation pond was fenced only on three sides and was an attractive nuisance to children playing in the area. The negligence of the owner of the apartment building is alleged to have caused the death of the child on the theory of attractive nuisance.

At the funeral of the child on April 2, 1974, Mr. George E. Bertrand, Sr. is alleged to have collapsed and died of a heart attack resulting from his mental anguish brought on by the death of the child.

EXCEPTION OF NO CAUSE OF ACTION AS TO CLAIMS FOR DEATH OF MR. BERTRAND, SR.

The first issue is whether the respective plaintiffs have a cause of action for the death of Mr. Bertrand, Sr. The jurisprudential rule is settled in Louisiana that a cause of action does not lie for emotional stress or resulting physical injury caused by injury to or death of another person. Black v. Carrollton Railroad Company, 10 La.Ann. 33 (1855); Sperier v. Ott, 116 La. 1087, 41 So. 323 (1906); Brinkman v. St. Landry Cotton Oil Company, 118 La. 835, 43 So. 458 (1907); Kaufman v. Clark, 141 La. 316, 75 So. 65 (1917); Seligman v. Holladay, 154 So. 481 (La.App., 2d Cir. 1934); Warr v. Kemp, 208 So.2d 570 (La.App. 3rd Cir. 1968); Voelker v. Liberty Mutual Insurance Company, 190 So.2d 136 (La.App., 4th Cir. 1966); Sabatier v. Travelers Insurance Company, 184 So.2d 594 (La.App., 4th Cir. 1966); Duet v. Cheramie, 176 So.2d 667 (La.App., 1st Cir. 1965). We are aware that this jurisprudence has been criticized. Stone, Lou-siana Tort Doctrine: Emotional Distress Occasioned by Another’s Peril, 48 Tul.L. Rev. 782. However, the rule is still controlling in Louisiana.

The district judge correctly sustained the exceptions of no cause of action as to the respective claims for damages for the death of Mr. Bertrand, Sr.

EXCEPTION OF NO RIGHT OF ACTION AS TO CLAIMS FOR THE DEATH OF THE CHILD

The next issue is whether the natural mother and/or her parents, who were in the process of adopting the child, have a right of action for the child’s death.

LSA-C.C. Art. 2315 provides in pertinent part for the survival of death actions as follows:

“The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: . . . (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving.
“As used in this article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.”

Under this article, it is clear that a person who has adopted a child may sue for his wrongful death. In the present case, the child was being adopted pursuant to the provisions of LSA-R.S. 9:421, et seq. Under this statute, the natural mother had surrendered the child to Mr. and Mrs. Bertrand, Sr. for adoption, and the interlocutory decree had been entered, but the final decree of adoption had not been granted.

Mrs. Bertrand, Sr. contends that the natural mother lost all of her rights to the child under the following provisions of LSA-R.S. 9:429: “After the interlocutory decree has been granted by the judge, the withdrawal of consent by the “legitimate parent or parents, by the mother or . . . shall not bar a final decree of adoption.”

Mrs. Bertrand, Sr. urges that In re Adoption of Giambrone, 262 So.2d 566 (La.App., 4th Cir. 1972), is controlling on the issue presented here. There the court stated: “Once consent to adoption is freely and lawfully given and an interlocutory decree has been entered, the so-called natural rights of the natural parent are ended.”

We do not find In re Giambrone controlling here. In Giambrone the issue presented for the court was whether withdrawal of consent by the legitimate parent was “good cause” for recalling the interlocutory decree. The court held that in accordance with LSA-R.S. 9:431 and 9:432 consent of the parents to the' adoption is not a necessary requisite to the final decree. It was only with regard to withdrawal of consent by the legitimate parents that the court made the above quoted statement. We find it is inapposite in the instant case.

In Rodden v. Davis, 293 So.2d S78 (La.App. 3d Cir. 1974), we held:

“Adoption is a creature of statutory law, and being in derogation of the natural right of a parent to his or her child such statutes are always strictly construed in favor of the parent. In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963). See also Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966); In re Genin, 240 So.2d 46 (La.App. 4th Cir. 1970).”

In this case the adoption was not complete. Only an interlocutory decree had been rendered. It was not certain that a final decree would be rendered granting the adoption. For example, if a petition were not filed within two years asking for a final decree of adoption, the interlocutory decree would have become null and void. LSA-R.S. 9:431. And even if such petition had been filed within the requisite time limit, the judge could still have refused to decree the child adopted, based on his considerations of “the best interest of the child.” LSA-R.S. 9:432 (B). See 36 Tul.L.Rev. 201 at 220-221.

We conclude that since the final decree of adoption had not been granted, Mr. and Mrs. Bertrand, Sr. were not the mother and father of the child “by adoption” within the meaning of LSA-C.C. Art. 2315, and they have no right of action for the child’s death.

We hold further that since the adoption was never completed, the natural mother, Sallie Bertrand LeBlanc, did not lose her rights to recover for the death of the child under I.SA-C.C. Art. 2315.

For the reasons assigned, the judgment in the instant case, sustaining the exception of no right of action and the exception oí no cause of action and dismissing plaintiffs’ suit, is affirmed. All costs of the appeal in this case are assessed against the plaintiffs-appellants.

AFFIRMED.


text:
    Emily BERTRAND et al., Plaintiffs and Appellants, v. STATE FARM FIRE & CASUALTY COMPANY et al., Defendants and Appellees.
    No. 5471.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Writ Refused Sept. 29, 1976.
    Hunt, Godwin, Painter & Roddy by David Painter, Lake Charles, for plaintiffs and appellants.
    Stockwell, St. Dizier, Sievert & Viccellio by John S. Bradford, Lake Charles, for defendants and appellees.
    Before HOOD, CULPEPPER and PETERS, JJ.
   CULPEPPER, Judge.

This is a companion suit to No. 5470 on the docket of this Court entitled “Emily Bertrand, as Administratrix of the Estate of Bradley Keith Bertrand, Etc.’’, 333 So. 2d 322, in which a separate judgment is being rendered by us this date. For the reasons assigned in Suit No. 5470, the judgment in the present case sustaining the exception of no right of action and the exception of no cause of action and dismissing plaintiffs’ suit, is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.


text:
    Sallie Bertrand LeBLANC, Plaintiff and Appellant, v. STATE FARM FIRE & CASUALTY COMPANY et al., Defendants and Appellees.
    No. 5476.
    Court of Appeal of Louisiana, Third Circuit.

      May 26, 1976.

    Rehearing Denied July 1, 1976.
    Writ Refused Sept. 29, 1976.
    Raleigh Newman and James Miguez, Lake Charles, for plaintiff and appellant.
    Stockwell, St. Dizier, Sievert & Viccellio by John S. Bradford, Lake Charles, for defendants and appellees.
    Before HOOD, CULPEPPER and PETERS, JJ.
   CULPEPPER, Judge.

This is a companion suit to No. 5470 on the docket of this Court, entitled “Emily Bertrand, as Administratrix of the Estate of Bradley Keith Bertrand, Etc.”, 333 So. 2d 322, in which a separate judgment is being rendered by us this date. For the reasons assigned in Suit No. 5470, the judgment sustaining the exception of no right of action and the exception of no cause of action, as to plaintiff’s claims for the death of her father, is affirmed. All costs of the appeal in this case are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    Sallie Bertrand LeBLANC, Plaintiff and Appellant, v. STATE FARM FIRE & CASUALTY COMPANY et al., Defendants and Appellees.
    No. 5477.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Raleigh Newman and James Miguez, Lake Charles, for plaintiff and appellant.
    Stockwell, St. Dizier, Sievert & Viccellio by John S. Bradford, Lake Charles, for defendants and appellees.
    Before HOOD, CULPEPPER and PETERS, JJ.
   CULPEPPER, Judge.

This is a companion suit to No. 5470 on the docket of this Court, entitled “Emily Bertrand, as Administratrix of the Estate of Bradley Keith Bertrand, Etc”, 333 So. 2d 322, in which a separate judgment is being rendered by us this date. For the reasons assigned in Suit No. 5470, the judgment in the present case, sustaining the exception of no right of action and the exception of no cause of action by Sallie Bertrand LeBlanc for damages for the wrongful death of her child, Bradley Keith Bertrand, is reversed and set aside. These exceptions are overruled and this case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendant, State Farm Fire & Casualty Company. Assessment of costs in the district court must await a final determination there.

REVERSED AND REMANDED.


author: SAMUEL, Judge.

text:
    Edwin N. HALLER, Jr. d/b/a Haller’s Air Conditioning Maintenance & Engineering Service v. William K. CHRISTOVICH.
    No. 7016.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Windhorst, Heisler, de Laup & Wysocki, Melvin Ripp, Jr., New Orleans, for plaintiff-appellant.
    A. D. Freeman, New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA and BEER, JJ.
   SAMUEL, Judge.

This is a suit for $1,433.12 allegedly due plaintiff under a contract for performing repairs and installing new parts in an air conditioning and heating system in defendant’s home. Defendant answered in the form of a general denial and reconvened for the sum of $4,000 for depreciation of the equipment allegedly caused by the plaintiff, inconvenicence and discomfort while the system was inoperative, and the return of $1,000 paid under an error of fact. Alternatively, reconvenor prayed that any judgment in favor of plaintiff be restricted to the value of that part of plaintiff’s work which was not necessitated by plaintiffs negligence.

Following trial on the merits, there was judgment dismissing both plaintiff’s suit and defendant’s reconventional demand. Plaintiff has appealed and defendant has answered the appeal limited to the recon-ventional demand.

The record reveals the following facts: The fifteen ton air conditioning and heating system in defendant’s home had been a problem since its installation for approximately seven years prior to March, 1970. Plaintiff was contacted at the suggestion of Mr. Wiley Mossy, father of defendant’s wife, and in May, 1970 he met with Mrs. Christovich and Mr. Mossy at defendant’s home to inspect the equipment and make suggestions and recommendations for its repair.

Plaintiff recommended a condensor motor be replaced in one area; a condensor fan motor in the five ton area be replaced with a larger one; the pulleys be increased in size; the condensor coil be cleaned; the thermostats be checked and verified; and an erratic timer motor be repaired. The cost of the proposed repairs was $968.32. Mrs. Christovich would not authorize the repairs because her husband was out of town, but she expected him to return over the weekend. At that time she was to discuss the matter with him and give plaintiff a definite answer on the following Monday. The unit was not operating and she asked plaintiff for some relief over the weekend. He jumped the timer and thus started the unit.

Mrs. Christovich did not contact plaintiff until a week or so later when she complained of noise in the equipment and plaintiff made a service call at that time. She called again on June 5, 1970 because the equipment was not operating and she wanted temporary relief because she was having a party. Plaintiff went to defendant’s home accompanied by Frank New-som, an air conditioning specialist. He jumped the timer again to give temporary relief and again requested authority to begin the previously suggested repairs, but Mr. Christovich was out of town. Haller and Newsom both claim Mrs. Christovich was warned not to use the unit beyond the week end because of possible damage, but Mrs. Christovich denies any such warning, or that jumping the timer was ever discussed with her. Defendant was billed $25 for each of the two service calls.

Several weeks later, at a time when Mr. Christovich again was out of town, the condensor exploded and Mrs. Christovich authorized plaintiff to begin immediate repairs. He sent a workman out at once, but now, in addition to the original problems, it was necessary to dismantle and rebuild the compressor. Mrs. Christovich was so informed and understood this constituted additional work. After all of the work was completed defendant was sent bills for the original repairs in the sum of $968.32, $50 covering the two service calls, and a separate invoice for the additional repairs at a total cost of $1,414.80, including $552.-25 for labor, and $862.55 for parts. Defendant paid $1,000 and refused to pay the balance because he was of the opinion the additional damage was caused by plaintiff. This suit followed.

We are called upon to determine: (1) whether plaintiff is entitled to the balance which he claims is due; and (2) whether defendant is entitled to damages claimed in his reconventional demand.

The claim for the balance due concerns the repairs not contemplated in plaintiff’s initial proposal. Defendant’s refusal to pay the additional charge is based upon his contention that the explosion of the equipment was caused by plaintiff jumping the timer.

Testimony at the. trial was given by six witnesses. Plaintiff and Fred Newsom, his air conditioning expert, were called by the plaintiff. The defendant, Mrs. Christo-vich, Mr. Mossy and Joseph E. Leininger, an air conditioning expert, testified on behalf of the defendant.

The experts agree that the purpose of the timer is to prevent the machinery from operating continuously. In the event the machine stops for any reason, the timer prevents its restarting for four to four- and-one-half minutes, thus allowing the compressor to stabilize and primary safety devices to reset themselves. It is clear from the record that with a by-passed timing device the machinery should not be run for an extended period.

Mr. Newsom, plaintiff’s expert, was of the opinion that the timer device was only a secondary safety device used to prevent the compressor from short circuiting, and the damage to the defendant’s unit was not caused by jumping the timer for the period of time Mrs. Christovich was instructed to use it.

Plaintiff was of the opinion that running the machine after he had jumped the timer was not responsible for the demise of defendant’s compressor because it was in a jeopardized condition at the time of his first meeting with Mrs. Christovich and Mr. Mossy as a result of all the things which needed correcting. He stated the compressor failed as a result of continuous running through a period whereby the temperature increased beyond 85°, and the compressor would have failed even if a new timer had been installed at that time.

Mr. Leininger, defendant’s expert, visually examined the defendant’s equipment externally as to the outer casing and control section on August 2, 1974, four years subsequent to the work done by plaintiff. He did not look at the entire unit or familiarize himself with the Carrier air conditioning manual covering this unit. Although he testified without elaboration that there were several factors other than the timer which could have caused the condensing system to fail, he felt there could be a causal link between jumping the timer and damage to the compressor. He explained that jumping the timer bypassed the safety devices and could have caused foam to mix with oil in the compressor which could affect the pistons, cause damage to the valves and/or connecting rods in the crank case of the machine, and that the machine would have to be rebuilt or replaced with a new machine.

The trial court dismissed plaintiff’s suit because it was instituted on a written contract. At the trial it was apparent the agreement, if any, was oral. Thus, the trial court concluded plaintiff could not recover on the basis of a written contract, or on the basis of quantum meruit because it was not pleaded, nor was evidence introduced to warrant such a judgment.

We prefer to base our determination on the evidence which preponderates to the effect that the damage to the compressor was caused or hastened by plaintiff’s jumping the timer which he knew, or should have known, would cause serious damage to the equipment if allowed to run continuously. We are satisfied that had defendant’s wife understood the consequences of permitting the equipment to run continuously, she would not have done so. We agree the additional repairs were necessitated by plaintiff’s actions. Thus, plaintiff is entitled to be paid only the sum of $968.32 for the original repairs and $50 for the two service calls, or a total of $1,018.32. Since he has been paid $1,000, he is entitled to an additional award of $18.32 and we will amend the judgment accordingly.

Evidence offered in support of defendants reconventional demand was given by Mr. Christovich who testified that shortly after the repairs were commenced, his family took up residence at his father-in-law’s home “for a few days” while the latter was at his summer home. The family had to pack up and move out of their own home because it was very hot and there was no air conditioning. There were considerable commotion, equipment and workmen around constantly, and plaintiff was unsure how long the repairs would take. Within a month after the work was performed the motor plaintiff had replaced in the utility room burned out completely and defendant was forced to spend several hundred dollars with another air conditioning firm to replace the motor. They have since had numerous service calls. (Plaintiff testified the unit he replaced was warranted for one year but he was not called by defendant to repair or replace it.) Mr. Christovich stated his wife took care of the bills and he had no idea of the amount, other than it was hundreds of dollars. The record contains no other evidence as to the amount allegedly expended for replacing the motor. Mrs. Christovich did not testify as to any such amount. As to the claim for inconvenicence and discomfort, we are unable to determine from the record what length of time is included in the “few days” plaintiff had to move his family out of his home nor what part thereof was due to the repair of the compressor as opposed to the original repairs.

We are therefore of the opinion, as was the trial judge, that plaintiff in reconvention has not offered sufficient proof of damages to merit an award on the recon-ventional demand.

For the reasons assigned, it is now ordered that there be judgment on the main demand in favor of plaintiff-appellant and against defendant-appellee in the sum of $18.32. As thus amended, and in all other respects, the judgment appealed from is affirmed. Costs of this appeal are to be paid by plaintiff-appellant.

Amended and affirmed.


author: BARON B. BOURG, Judge pro tern.

text:
    Anna Burglass DeSalvo DUNKER v. FINANCE FUNDS GROUP, INC.
    No. 6471.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 29, 1976.
    Rehearing Denied June 30, 1976.

      Anna Burglass DeSalvo Dunker, in pro. per.
    Richard T. Simmons, New Orleans, for defendant-appellee.
    Before STOULIG and MORIAL, JJ., and BARON B. BOURG, J. Pro Tern.
   BARON B. BOURG, Judge pro tern.

Appellant, Anna Burglass Dunker, plaintiff below originally filed suit to rescind a sale of immovable property on grounds of lesion beyond moiety. A judgment was rendered by the trial court and an appeal was taken to this court. We remanded the suit for additional evidence, 252 So.2d 498 (La.App. 4th Cir. 1970). On remand the district court rendered a judgment ordering the dismissal of plaintiff’s demands and recognizing defendant, Finance Funds Group, Inc., as the owner of the property in question. A motion for a new trial was filed but denied. The appellant now seeks to have the trial court’s judgment set aside on the ground that fraud had been practiced against her.

Appellant, Mrs. Dunker, was the owner of a certain tract of land which is the subject of this suit. Because the property was under foreclosure and seizure, Mrs. Dunk-er wished to purchase the property at a sheriff’s sale but was unable to secure sufficient funds to do so.

Appellant was informed that Finance Funds Group, Inc., would be willing to purchase the property from her prior to sale for $15,000 and thereby reduce her loss which would have occurred if the property were sold at the sheriff’s sale for $8,600. Appellant agreed to this solution.

The attorney for Finance Funds Group, Inc. attempted to arrange for a postponement of the sheriff’s sale. He met opposition from the seizing creditor who would not agree to any postponement unless he was paid in full. Finance Funds thereupon agreed to advance $8,569.95 (the balance Mrs. Dunker needed in order to purchase the property from the creditor) and take an assignment to protect their interest until a sale to them could be completed. Such sale from appellant to Finance Funds Group, Inc. was completed on Monday, October 26, 1964, at which time Mrs. Dunker was paid the difference between $8,569.95 and the $15,000 purchase price.

Mrs. Dunker later filed suit on the ground of lesion beyond moiety alleging that the property was worth more than twice the sale price on the date of the transaction. The district court on remand rendered the herein appealed judgment dismissing plaintiff’s demands against defendant.

We have heard oral arguments in this cause and have carefully considered the briefs submitted by counsel and the lengthy record on appeal. As to the issue of lesion, it is our conclusion that the appellant has failed to demonstrate an abuse of the power vested in the trial judge.

Article 1870, LSA-C.C., reads as follows :

“When lesion is alleged to invalidate a partition or sale, the party alleging it must first prove the value of the property sold, in the state in which it was at the time of the contract, according to the usual terms of credit given on sales or property of that description. He must then show how much the price given was less than such value; the court shall determine whether according to law applied to the circumstances of the case, there is a lesion sufficient to invalidate the contract.”
(Emphasis added.)

The jurisprudence is to the effect that a vendor suing to set aside the sale of an immovable for lesion beyond moiety must establish his case by strong and convincing proof. Thomas v. Sewell, 239 La. 66, 117 So.2d 912 (1960); Broussard v. Ketchens, 231 La. 508, 91 So. 2d 775 (1956); Armwood v. Kennedy, 231 La. 102, 90 So.2d 793 (1956); Poos v. Creaghan, 226 La. 619, 76 So.2d 907 (1954); White v. Bergstedt, 164 La. 993, 115 So. 59 (1927); Hyde v. Barron, 125 La. 227, 51 So. 126 (1909).

In concluding that the appellant had failed in her burden of proof, the trial judge found that the plaintiff did not produce any evidence to indicate that the subject property had a value on the date of the sale in excess of twice the sale price. She offered neither expert witnesses, nor lay witnesses as to valuation. The defendant, on the other hand, offered expert testimony and, in the absence of any other expert witness for the plaintiff, the trial judge accepted the value of the property on the date of sale to be $18,810.

As to the allegations by plaintiff that the subject transaction may have been a simulated sale, mortgage or loan, the trial judge, in his well written reasons for judgment, analyzed the transaction and found it to be a sale.

LSA-C.C. Article 2236 provides:

“The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.”

See also Godwin v. Neustadt, 42 La.Ann. 735, 7 So. 744 (1890).

In Breaux v. Royer, et al, 129 La. 894, 57 So. 164 (1912), the Supreme Court said:

“ . . . upon the trial, however, defendant offered parol testimony to show that the conveyance from Royer to A. S. Chappuis, which, upon its face, is an ordinary notarial act of sale, duly recorded, was intended to operate as a mortgage, but, in the absence of any allegation that defendant was induced to execute it by reason of error, misrepresentation, or fraud, the testimony was properly excluded.’’

The copy of the Act of Sale introduced into evidence was signed by appellant, Mrs. Dunker, as vendor, Finance Funds Group, Inc., as vendee, two witnesses and a notary public. The trial judge, thus finding all the essentials of an authentic act, concluded it to be so. Furthermore, despite the fact that parol evidence was admitted, the court concluded that the intent of the parties was to execute a sale.

Even were we to disagree with the findings of the trial judge, it is well settled that the findings of a trial judge on questions of fact, will not be set aside nor disturbed by an appellate court in the absence of manifest error. Spreen v. Gibbs, et al, 305 So.2d 494 (La. 1974); Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.1974); Canter v. Koehring Company, 283 So.2d 716 (La.1973); Andrews v. Williams, 281 So.2d 120 (La.1973); Town of Slidell v. Temple, 246 La. 137, 164 So.2d 276 (1964).

It is our opinion that since appellant has failed to show apparent or obvious error and has also failed to meet her burden of proof shoeing that the judgment of the trial court is manifestly erroneous, the judgment of the trial court will not be disturbed.

In brief and in oral argument appellant has strongly urged a plea of fraud, apparently based upon certain actions which occurred surrounding the transfer of property. We are unable to consider this issue for the reason that it was not set up originally as a plea in the trial court.

“In pleading fraud, or mistake, the cir'cumstances constituting fraud, or mistake shall be alleged with particularity. Malice, intent, knowledge, and other condition of the mind of a person may be alleged generally.” LSA-C.C. Article 856.

Since the issue of fraud was not raised by the pleadings, it is not properly before this Court and cannot be considered on appeal. State v. Great Atlantic & Pacific Tea Co., 190 La. 925, 183 So. 219, certiorari denied 305 U.S. 637, 59 S.Ct. 108, 83 L.Ed. 410 (1938); A. Sulka & Co. v. City of New Orleans, 208 La. 585, 23 So.2d 224 (1945); Louisiana Land Co. v. Blakewood, 131 La. 539, 59 So. 984 (1912).

For the reasons assigned, the judgment of the trial court is affirmed, appellant to pay all costs of this appeal.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Herman ROSENSWEIG v. The TRAVELERS INSURANCE COMPANY and Vista Shores Club, Inc.
    No. 7143.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 1, 1976.
    Rehearing Denied June 30, 1976.

      Parker & Parker, John E. Parker, New Orleans, for H. Alvin Strauss, plaintiff-appellant.
    Russ M. Herman, Herman & Herman, New Orleans, for Herman Rosensweig, plaintiff-appellant.
    Donald O. Collins of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Travelers Ins. Co. and Vista Shores Club, Inc., defendants-appel-lees.
    René A. Curry, Jr., of Drury, Lozes & Curry, New Orleans, for Union Const. Co., Inc., defendant-third party defendant-ap-pellee.
    M. N. Grossel-Rossi, Leach, Grossel-Rossi & Paysse, New Orleans, for Oxford Chemical Co., defendant-appellee, and Center Chemical Co., third party defendant-ap-pellee.
    Francis G. Weller of Deutsch, Kerrigan & Stiles, New Orleans, for J. Buchanan Blitch, defendant-third party defendant-appellee.
    Donald P. Schwarz, Metairie, for Nat Canovsky, defendant-appellee.
    Before LEMMON, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This case was consolidated for trial with Strauss v. Travelers Insurance Company, No. 7144 of our docket, La.App., 333 So.2d 339, as each has almost an identical issue of liability. The plaintiffs, Mr. Herman Rosensweig and Mr. H. Alvin Strauss, sued for personal injuries arising out of two separate slips and falls at defendant’s Vista Shores Club, Inc., ballroom. Mr. Rosensweig’s original petition named as defendants Vista Shores Club and Travelers Insurance Company. By supplemental and amended petition Mr. Rosensweig added nine defendants. These defendants were averred to have committed negligence in the design and construction of the club’s building and also negligence in the manufacture and application of the wax used on the floor of the ballroom. The original defendants answered the supplemental and amended petition and further filed a third party demand against many of the additional defendants. The trial court gave judgment for all of the defendants dismissing the plaintiffs’ suit and the third party demand. Both plaintiffs have appealed.

The facts of these cases are these: The Krewe of Mecca hired the ballroom and services of the Vista Shores Club in order to have a supper dance. Among the couples invited were the Trestmans, Strauss’, Rosensweigs and Wexlers. All these couples sat together at the party or in very close proximity. The ballroom of the Vista Shores Club is a large rectangular room. The layout for the party had a large horseshoe of tables at one end, a dance floor in the middle of the horseshoe and buffet tables at the other end. Beyond the buffet tables were the restrooms and the kitchen. The floor of the ballroom is made of terrazzo and is regularly waxed.

Early in the evening of the party Mrs. Trestman left the table to go to the restroom. Upon passing the buffet tables she slipped on a substance she could only describe as looking like food or gravy. On the way back from the restroom she again slipped in the same spot. Neither time did she fall down or injure herself. Becoming concerned she reported the condition of the floor to a man in a tuxedo at the buffet tables. She testified that she felt this man was an employee of Vista Shores Club because he was wearing a tuxedo while everyone else at the party was attired for a luau and because he was directing the food operations at the buffet tables. All of the services provided were by Vista Shores Club through its own employees.

Approximately one-half to one hour after Mrs. Trestman slipped, Mr. Rosensweig left the table to go to the kitchen on an errand. Upon returning from the kitchen he fell near the buffet tables in the area where Mrs. Trestman had slipped earlier. He was helped up and seated in a chair near the buffet tables. When word of Mr. Rosensweig’s fall reached the table, Mr. Strauss and Dr. Wexler got up and began to hurry in the direction of the buffet tables in order to assist their friend. As they passed the buffet tables they both slipped and fell in the same area as had Mr. Rosensweig. None of the men who had fallen could say what it was that caused them to slip. They all merely testified that the area was very slippery.

Immediately following Mr. Rosensweig’s fall, Mr. Cook, the manager of Vista Shores Club, was summoned from his office downstairs. Apparently by the time he reached the ballroom Mr. Strauss and Dr. Wexler had already fallen. He inspected the area around the.-buffet tables and found nothing on the floor except salt. He stated that salt was often put on slippery floors because of its non-skid properties. He is unaware of who put the salt on the floor or why.

Plaintiffs contend that they have set out a prima facie case and that defendants have failed to rebut the inference of fault raised by them. Defendants, on the other hand, contend that plaintiffs have failed to carry their burden of proof.

The law in this area is not without doubt. However, it is clear that a plaintiff has the burden of showing that the hazardous condition of the floor caused his fall and that the condition was caused by or attributable to the defendant, or the defendant had actual or constructive knowledge of the hazardous condition and did nothing to remedy the condition.

The trial court rendered written Reasons for Judgment and in them it explained why it found in favor of defendants and dismissed plaintiffs’ suits. In summary, plaintiffs failed to show that they slipped in the same substance that Mrs. Trestman slipped in. Plaintiffs failed to show that Mrs. Trestman reported the event to a Vista Shores Club employee. The evidence does not support the proposition that Vista Shores Club employees were aware of any substance on the floor before the falls. Plaintiffs could not identify the substance they slipped in. There was no eyewitness to either of the falls except Dr. Wexler. Mr. Cook received no notice of a slippery condition until after both falls had occurred.

We believe the trial court to have committed error in the application of the law to the facts.

First, the trial court stated that it could not impose the same duty of care upon Vista Shores Club as is commonly imposed upon supermarkets. While it is true that the circumstances surrounding such a duty will be different, the duty remains the same. The duty imposed upon the owners of a country club holding a supper dance is the same general duty imposed upon the owners of any premises having business invitees. This duty is to use reasonable care to protect the invitees against every hazard which creates an unreasonable risk of harm. Prosser, Law of Torts, 3d Ed. §§ 401-405. This would include country clubs as well as supermarkets. As the Supreme Court recently said, “This duty includes a reasonable effort to keep objects off of the floor which might give rise to a slip and fall.” Kavlich v. Kramer, 315 So.2d 282 (S.Ct.1975).

Under the present jurisprudence a plaintiff is required to establish a prima facie case of negligence on the part of the defendant, after which the burden is on the defendant to go forward with evidence to rebut this inference of negligence. The trial judge weighs the circumstantial evidence at the conclusion of the trial and determines whether the defendant’s negligence is the most plausible explanation for the injury. Gonzales v. Winn-Dixie, Louisiana, Inc., 326 So.2d 486 (S.Ct.1976). We hold that plaintiffs have established their inference of negligence and defendants have failed to rebut it.

Plaintiffs have shown that four people, including themselves, had slipped in the same spot. There was a time lapse of between one-half to one hour between the first slip and the last. The first slip was reported to a person of authority at the buffet table, most probably an employee of defendant, Vista Shores Club. The area where the slips occurred is very close (between one and two feet) to the buffet tables. Part of defendants’ duty would include supervising this area, especially so when patrons are handling food items.

At the time of the latter three slips there was no discernible substance on the floor. However, it remains a fact that the floor was very slippery in the very spot that the foreign substance was first reported. The trial court found that the plaintiffs could not identify the substance in which they slipped and in fact there was no evidence that any substance ever existed. The trial court is correct that plaintiffs need not identify the substance with any great accuracy, and it is true that there was no discernible substance on the floor. However, what is also true is that this area, described as a two foot square, was very slippery; more slippery than any other part of the floor. We will not speculate as to what the substance was, we simply find that a two foot square, very slippery area on a ballroom floor is an unreasonable hazard. The causal link between defendants and the slippery area is the unrefuted testimony of Mrs. Trestman that she had earlier slipped in this same spot and reported the incident.

Taking all of the above circumstances into account we hold that plaintiffs have set out a prima facie case of negligence on the part of defendants.

Defendants have failed to rebut the inference of negligence raised by plaintiffs. Defendants offered no witnesses at the trial and only introduced the deposition of Robert Cook, the manager of the club. Defendants relied upon the supposition that plaintiffs could not carry their burden of proof. As such there is no testimony as to clean-up procedures during buffet supper dances. The only pertinent testimony offered by Mr. Cook was that the floor was waxed about monthly and cleaned only when dirty. He did admit that the floor became slippery when wet and that when he arrived at the scene of the accidents someone had spread salt on the floor to stop further slipping.

We hold that had the defendant, Vista Shores Club exercised reasonable care under the circumstances these two accidents would not have occurred. Gonzales v. Winn-Dixie, Louisiana, Inc., 326 So.2d 486 (S.Ct.1976). Accordingly we find Vista Shores and its insurer to be liable for plaintiffs’ damages.

The trial court correctly pointed out that there was no evidence adduced at the trial that would even suggest negligence on the part of any defendant other than Vista Shores Club. Accordingly, we affirm that part of the judgment dismissing the plaintiffs’ claims against all defendants except Vista Shores Club and Travelers Insurance Company. We further affirm the dismissal of the third party demand by Vista Shores Club and Travelers Insurance Company.

MR. ROSENSWEIG’S DAMAGES

Having disposed of the issues of liability, we now pass to a consideration of the damages involved. As a result of the fall Mr. Rosensweig was taken to the emergency room at Touro Infirmary for examination and treatment. It was determined that he suffered a comminuted fracture through the surgical neck of the humerus and sustained a tear of his tendons in the shoulder area. His injuries were very painful and he was required to take codeine, and then Percodan for relief of the pain. His arm was immobilized by a Velpeau bandage. He was treated by Dr. Russell C. Grunsten, an orthopedic surgeon, from the date of his injury to November 8, when he was discharged. Dr. Grunsten reported that he still has a 10 to 15% permanent disability as far as his right upper extremity is concerned and that he has developed a tendonitis or bursitis causing painful flareups on occasions. It was explained that Mr. Rosensweig, who was 64 years old at the time of the accident, will continue to experience these episodes from time to time throughout the rest of his life. For his injuries, pain and suffering, we consider an award of $10,000 to be reasonable.

Additionally, there was introduced into evidence medical expenses in the sum of $572.87 which we hold to be recoverable by Mr. Rosensweig. The evidence further discloses Mr. Rosensweig’s injury prevented almost any work activity except brief supervisory activity from July 24, 1971 until September 2, 1971. The shoulder sling was not removed until September 16, 1971 and he continued to receive physiotherapy treatments two or three times a week up until October. He offered a preponderance of evidence to show that during this period he suffered a loss of earnings which we compute to he the sum of $3,853.40, based upon his expected profit from loss of gross income during that period. He is entitled to recover this sum.

For the foregoing reasons, we affirm the judgment of the trial court except that portion thereof rendered in favor of defendants, Vista Shores Club, Inc. and The Travelers Insurance Company against Herman Rosensweig, which we now set aside and reverse. We render judgment in favor of plaintiff, Herman Rosensweig, and against defendants, Vista Shores Club, Inc. and The Travelers Insurance Company, in solido, in the sum of $14,426.27, together with interest from date of judicial demand until paid and for all costs of these proceedings.

AFFIRMED IN PART, REVERSED IN PART.

      . The man in the tuxedo was apparently Santos Sanabria, the head waiter at Vista Shores Club at that time. At the time of trial lie was living in Hattiesburg, Mississippi and unavailable to plaintiffs and defendants for the trial or a deposition.

      . The trial court noted that it is not required for a plaintiff to identify the hazardous sub-sstance with great accuracy. However, the court felt plaintiffs failed to show that a hazardous substance or condition even existed.

      . There is a good deal of conjecture about whether Santos Sanabria observed one, both or neither of the falls. Mr. Sanabria did not testify, (see footnote 1.)

      . The defendants and the trial court both stress that there is no evidence that the first slip by Mrs. Trestman was reported to an employee of the Vista Shores Club. This seems to be grounded mainly on the unavailability of Santos Sanabria, the head waiter at the club. We note that the trial court made no finding as to the credibility of Mrs. Trestman, her testimony stands unrefuted. Mrs. Trestman testified that she reported her slips to a man dressed differently than all the other people at the dance, a man directing the food operations by the Vista Shores employees at the buffet table. Defendants have brought forth no evidence to rebut this testimony. Therefore, it appears to this court more probable than not that the person informed of the substance on the floor, where later plaintiffs injured themselves, was a Vista Shores Club employee.


text:
    H. Alvin STRAUSS v. The TRAVELERS INSURANCE CO., and Vista Shores Club, Inc.
    No. 7144.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 1, 1976.
    Rehearing Denied June 30, 1976.
    Parker & Parker, John E. Parker, New Orleans, for H. Alvin Strauss, plaintiff-appellant.
    Donald O. Collins of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Travelers Ins. Co. and Vista Shores Club, Inc., defendants-appel-lees.
    Donald P. Schwarz, Metairie, for Nat Canovsky, defendant-appellee.
    Francis G. Weller of Deutsch, Kerrigan & Stiles, New Orleans, for J. Buchanan Blitch, defendant-third-party defendant-appellee.
    René A. Curry, Jr., of Drury, Lozes & Curry, New Orleans, for Union Const. Co., Inc., defendant-third-party defendant-ap-pellee.
    Russ M. Herman, Herman & Herman, New Orleans, for Herman Rosensweig, plaintiff-appellant.
    M. N. Grossel-Rossi, Leach, Grossel-Rossi & Paysse, New Orleans, for Oxford Chemical Co., defendant-appellee, and Center Chemical Co., third party defendant-appellee.

      Before LEMMON, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is the companion case to Rosensweig v. The Travelers Insurance Company, #7143 of our Docket, La.App., 333 So.2d 334 handed down this same date. We have explained the procedural posture and examined into the question of liability in the companion case. We held that the defendants, The Travelers Insurance Company and Vista Shores Club, Inc., were solidarity liable for the damages due the plaintiff in that case, Herman Rosensweig, and for the same reasons, we hold these same defendants to be liable for the damages caused to H. Alvin Strauss, plaintiff in this cause, for the slip and fall he suffered at the same time and place on these premises. Accordingly, we proceed to an examination of his injuries and damage.

Mr. Strauss also injured his shoulder in the fall, although not as severely as Mr. Rosensweig. He was similarly taken to the Touro Infirmary Emergency Room for treatment and Dr. Grunsten was his treating physician. It was determined that he suffered a tear of .the rotator cuff musculature in his right shoulder. This is a series of muscles connecting the scapula to the humerus, and as a result of the tear some scar tissue remains at the site. It was necessary that his arm be placed in a sling and he was given medication for pain. He was deprived of the use of his arm for about a month and was not discharged for about six weeks after his injury. It was necessary that he continue to exercise his shoulder and arm in order to achieve as much range of motion as possible. Mr. Strauss testified that he continues to have trouble with his arm, and that he has limitations upon its use, and occasional periods of pain. The doctor testified that it remains necessary to exercise the arm and shoulder and that there is a tendency for tendonitis or bursitis to develop in the area. We believe that an award of $2500 is adequate under the circumstances. We also award him medical expenses of $60.00.

For the reasons assigned above and in the companion case, we affirm the judgment appealed from with the exception of that portion of the judgment rendered in favor of The Travelers Insurance Company and Vista Shores Club, Inc. against the plaintiff, H. Alvin Strauss, which we set aside and reverse. It is now ordered that there be judgment herein in favor of plaintiff, H. Alvin Strauss and against the defendants, The Travelers Insurance Company and Vista Shores Club, Inc. in solido in the full sum of $2,560.00, together with interest from date of judicial demand until paid, and for all costs of these proceedings.

AFFIRMED IN PART, REVERSED IN PART.


author: Penrose C. ST. AMANT, Judge Pro Tem.

text:
    Mrs. Joan O. GIBSON et al. v. The SUCCESSION of Mrs. Ruth O’Brien GUMBEL et al.
    No. 7336.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.

      James O. Manning, Metairie, for Joan O. Gibson, et al, plaintiffs-appellants.
    M. Hepburn Many, Many LoCoco & Dwyer, New Orleans, for succession of Mrs. Ruth O’Brien Gumbel and John Or-mond, et al., defendants-appellees.
    Before GULOTTA, SCHOTT and ST. AMANT, JJ.
   Penrose C. ST. AMANT, Judge Pro Tem.

This is an action to nullify a will. The trial court rejected plaintiffs’ demands and they appealed. We affirm.

The trial court initially dismissed plaintiffs’ demands on a peremptory exception of no right or cause of action but on appeal to this court we reversed and remanded for a trial on the merits. Gibson v. Succession of Gumbel, 290 So.2d 397 (La.App. 4th Cir. 1974). The thrust of that opinion was to the effect that “when considering allegations as to lack of testamentary capacity, a cause of action is stated.”

The burden of proof is on the opponent who alleges lack of testamentary capacity. Succession of Schmidt, 219 La. 675, 53 So.2d 834 (1951). The only persons to testify on the issue of testamentary capacity were the notary public and the two witnesses before whom the will was executed and the decedent’s attending physician. The testimony of all of these witnesses was to the effect that although the testatrix was physically ill and confined to Touro Infirmary at the time of the execution of the will she was mentally alert, in full possession of all of her faculties, and perfectly cognizant of what she was doing. There is a total absence of any proof to support the allegation of lack of testamentary capacity.

Plaintiffs do not seriously contend that they have met the burden of proof with regard to the alleged lack of testamentary capacity. Instead they contend primarily that the will should be set aside on the basis that the attorney who prepared the will is the principal beneficiary thereof and that he exercised undue influence over the testatrix.

We have not been cited to any constitutional, statutory or jurisprudential rule ever recognized in this state which would prohibit an attorney from inheriting under a will prepared by him nor are we aware of any such rule. Furthermore our statutory law specifically prohibits evidence of dispositions having been made through cap-tation or undue influence. Civil Code Article 1492 reads as follows:

“Proof is not admitted of the dispositions having been made through hatred, anger, suggestion or captation.”

In the recent case of Guidry v. Hardy, 254 So.2d 675 (La.App. 3rd Cir. 1971), the court applied this codal principle in the following language:

“No inquiry is permitted into the motives which may have influenced a testator to make testamentary dispositions. ‘Undue influence,’ therefore, is not a ground for invalidating a will in Louisiana

Although we rest our decision squarely on this fundamental principle of law we note that even if the rule were otherwise the plaintiffs still would not prevail. The evidence is to the effect that the will in question was but an updated revision with minor changes of a will which had been prepared a decade earlier by another attorney who is now deceased, and that this earlier will was prepared before the beneficiary was admitted to the bar.

Furthermore, although the present will was executed while the decedent was hospitalized at Touro, it was executed before a notary other than the attorney beneficiary who prepared the will. Finally, the testatrix did not expire during this period of hospitalization. She was subsequently discharged remaining at home for a period of approximately thirty days, then readmitted to the hospital for a period of time and discharged again for approximately sixty days before being readmitted to Touro for her final hospitalization. There was ample time during these intervals to change the will had she elected to do so. The decedent’s attending physician testified that in these intervals between hospitalization “she was her old self sitting in her apartment and giving out orders.” (Tr. p. 47). The evidence as a whole simply does not substantiate the allegation of undue influence.

At the conclusion of the trial the district judge summed up the situation in the following language:

“There is every reason in the world to believe that this is what the lady wanted to do and in fact did accomplish it. And I am going along with it. I am not going to turn over her intent which I find was clearly expressed and I think within valid and legal bounds and this is the order and judgment of the court.”

The record amply supports this conclusion of the trial judge. Therefore the decision appealed from is affirmed at appellants’ cost.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Gail McFarland SHEPPARD, Plaintiff and Appellant, v. TRAVELERS INSURANCE COMPANY and J. C. Penney Company, Inc., Defendants and Appellees.
    No. 5452.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.

      Edwards, Stefanski & Barousse by Homer Ed. Barousse, Jr., Crowley, for plaintiff and appellant.
    Davidson, Meaux, Onebane & Donohoe by Ken Williams, Lafayette, for defendants and appellees.
    Before DOMENGEAUX, WATSON, and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, Gail McFarland Sheppard, instituted this tort action against the defendants-appellees, J. C. Penney Company, Inc., and its liability insurer, Travelers Insurance Company, for damages allegedly caused to her by an employee of the former. From a judgment of dismissal the plaintiff has appealed. We reverse.

On September 5, 1972, plaintiff entered the beauty salon of the J. C. Penney Company, Inc. store in Lafayette, Louisiana, to have her hair “retouched”. Some time prior thereto plaintiff had had her hair bleached blonde at the same beauty salon and was returning for a periodic treatment by which a portion of her hair representing new growth was to be bleached so that its color would correspond with the hair which had been previously treated.

The original bleach treatment and subsequent bleach retouch procedures were apparently performed by the same individual, Pauline Nix. On the date in question Ms. Nix began to perform the bleach retouch treatment on plaintiff’s hair. Prior to commencement of the treatment she inquired as to whether plaintiff was currently taking any type of medication. After receiving a negative response she proceeded with the bleach retouch. After some time Ms. Nix noticed that plaintiff’s hair was breaking off a short distance from the scalp on the frontal portion of the head and again queried plaintiff about medication. This time plaintiff admitted that she was presently taking two drugs, viz: val-ium 5 and thyroid pills.

Ms. Nix hastily removed the remainder of the bleaching agent from plaintiff’s hair and applied massive doses of a protein conditioner. Plaintiff was told, in effect, “that everything would be alright” and was given a type of wiglet to wear over the injured portion of her hair. When plaintiff removed the wig some four days later she discovered that a substantial portion of the hair along the front portion of her head was broken off approximately one-half inch from the hairline. She returned to the defendant’s beauty salon and was furnished wigs and given remedial treatments at no charge for a period of approximately two months. After that time defendant ceased said “gratuities”. She subsequently instituted this law suit claiming that the damage to her hair was caused by defendant’s employee’s negligently “overlapping” the bleaching agent onto that portion of the hair already treated, thus damaging it to a point of breakage. Defendant contended that the damage was a result of the combination of the bleach and the medications which plaintiff was taking at the time.

Plaintiff alleges two specifications of error :

1. The trial judge erred in his failure to apply the doctrine of res ipsa lo-quitur to the instant case.
2. The trial judge erred in finding that plaintiff failed to prove her case by a preponderance of the evidence.

The principle of res ipsa loquitur is a rule of circumstantial evidence. To invoke applicability of the doctrine, three requirements must be met: (1) The accident which damaged plaintiff must be caused by an agency or instrumentality within the actual or constructive control of the defendant; (2) The accident must be of a kind which ordinarily does not occur in the absence of negligence; and (3) The evidence as to the true explanation of the accident must be more readily accessible to the defendant than to the plaintiff. See Calix v. Whitson, 306 So.2d 62 (La.App. 4th Cir. 1974); Wells v. Woman’s Hospital Foundation, 286 So.2d 439 (La.App. 1st Cir. 1973), writ refused 288 So.2d 646; Haymark and Sons, Inc. v. Prendergast, 268 So.2d 110 (La.App. 3rd Cir. 1972); 25 La.L.Rev. 748, 750.

Applicability of the res ipsa loqui-tur rule is further conditioned upon a factual finding which indicates that the negligence of the defendant rather than some other factor is the most plausible explanation of the accident. See Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972); and Pilie v. National Food Stores of Louisiana, Inc., 245 La. 276, 158 So.2d 162 (1963).

Application of the doctrine has the effect of shifting- the burden of proof to the defendant to show an absence of negligence on his part. See Day v. National U. S. Radiator Corporation, 241 La. 288, 128 So.2d 660 (1961); Langlinais v. Geophysical Service, Inc., 237 La. 585, 111 So.2d 781 (1959); Horton v. Seligman and Latz, Inc., 260 So.2d 731 (La.App. 4th Cir. 1972); writ refused 262 La. 191, 262 So.2d 788.

The doctrine has been held applicable to hair treatment situations in Horton v. Seligman and Latz, Inc., supra, but must be applied on a case by case basis.

To determine the applicability of the res ipsa loquitur rule to the facts presented by the instant litigation a careful review of the evidence is in order.

Joy Howlley, an expert cosmetologist, was called as a witness for the plaintiff. She testified that her experience has shown that the process of “overlapping” will almost invariably cause breakage. The witness gave the following description to the court of the phenomenon of overlapping:

“Overlapping is applying bleach to areas of hair that have been prebleached, and this is not desirable. When you retouch a bleached hair — head of hair, you work only with the new growth, the dark growth, trying to lighten it as much as you’ve lightened the previously bleached hair. Now, if you apply bleach to hair that’s been previously — previously bleached and leave it on as long as you leave it on the new growth, almost invariably, breakage will occur.”

As to the effect of the combination of medication with a bleaching agent, Ms. Howlley further testified:

“Well, I have seen hair loss because of strong medication and very serious illnesses. Now, I’m not saying it could not happen like this, but I am saying in my experience, the hair seems to fall out all over the hair and thins at a — you know, just all over everywhere. Or it could come out in splotches, you know, just large areas. But just to concentrate just on the front because of medication, it doesn’t seem feasible to me.
Well, personally, I don’t know what medication and bleach, the combination would do. I dont’ know. I’ve — I know I’ve worked on patron’s hair who have been taking medication and I have bleached and colored and permanented their hair and have never had this experience. But I do know that overlapping will cause this to happen, and I know this for sure.”

This expert witness further testified that she had been taking valium and a hormone pill for a number of years and had had her own hair bleached a number of times without any adverse reaction.

Two expert cosmetologists testified on defendant’s behalf: Pauline Nix, the beautician who worked on plaintiff’s hair on the date of the accident and prior thereto, and Dianne Leblanc, a former co-worker of Ms. Nix’s at J. C. Penney Company, Inc., who was also present on the date of said accident.

Ms. Nix testified that she felt that she had not overlapped plaintiff’s hair and concluded that the cause of the damage should be attributed to an adverse reaction of the bleaching agent with the medication which plaintiff was taking at the time. However, Ms. Nix was unable to state categorically that the combination of valium 5 and thyroid with the bleaching agent was actually the specific cause of said damage. She testified as follows:

“Q. But what I’m asking you today is you cannot testify that the problem with her hair was the result of the medication she was taking ?
A. I can’t say either way.
Q. You just don’t know whether the medication had anything at all to do with the problem ?
A. I would assume that it was beings that I had bleached her hair previously and didn’t have this problem.”

The witness further testified that although the bleaching agent was applied to a substantial portion of plaintiff’s hair, the breakage occurred only in the area near the forehead. Ms. Nix was unable to give a satisfactory explanation of this phenomenon, and we find it illogical to conclude that the medication which allegedly permeated all of plaintiff’s hair would only react with the bleach in a particular and isolated portion of the head, especially in light of Ms. Howlley’s testimony relative to that subject.

As to the effect of medication, the following testimony was elicited from Ms. Leblanc:

“Q. Now, why is it that it is important to learn if a person is on medication before bleaching the hair ?
A. Well, in my experience, any medication — well, not any medication, but most medication that you are taking variates the heat of the body. (Emphasis added).
Q. Did it? Did the type she was taking cause any variations ?
A. To my knowledge, it does have some degree.
Q. Well, tell us what it does and what it—
A. I’m not a chemist and I’m not a doctor. I just know what I’ve seen.
Q. Then you have really no knowledge that it changes the temperature or any — any texture or anything at all in the hair?
A. No. No professional knowledge of that type, no.
Q. Okay. So your testimony is you don’t know what the Valium and the thyroid pills cause a reaction to hair? You don’t know? You say it will take a chemist and you’re not a chemist?
A. Right.”

All of the above expert witnesses testified that overlapping will almost invariably cause breakage such as that experienced by the plaintiff. While these witnesses testified that certain combinations of medication and bleach might cause an adverse reaction to the hair, none of them were able to specifically state that the medications which plaintiff was taking at the time could bring forth such a result. Their testimony was general and speculative, and Ms. Leblanc candidly admitted that she lacked the necessary background in chemistry to conclude that the medication taken by plaintiff could cause an adverse reaction during the bleaching process. For these reasons, we find that the defendant’s negligence (overlapping) is the most plausible explanation of the injury caused to plaintiff. Therefore, we find that the doctrine of res ipsa loquitur is applicable to this situation and that it became incumbent upon the defendant to show an absence of negligence on its part.

We likewise find, under the above recited facts that defendant has failed in its burden to demonstrate its freedom from negligence.

We now turn to the issue of damages.

Pursuant to LSA C.C.P. Article 2164, the Courts of Appeal are empowered with the authority to award damages in cases such as this where the trial court initially rendered a judgment of dismissal. See Schexnaydre v. Becnel, 142 So.2d 555 (La.App. 4th Cir. 1962).

Awards granted in similar cases may serve as guidelines to aid in our determination of the degree of damages to be awarded in the instant litigation. See Titard v. Lumbermen’s Mutual Casualty Company, 291 So.2d 857 (La.App. 3rd Cir. 1974) and cases cited therein.

In the case of Bethancourt v. Employers’ Liability Assurance Corp., 153 So.2d 921 (La.App. 4th Cir. 1963), plaintiff’s hair was ruined by a permanent wave treatment which necessitated her cutting it to a length of approximately one-half inch. The hair grew back within a nine month period, and plaintiff was awarded $556.00 plus special damages.

Bailey v. American Motorists Insurance Company, 189 So.2d 106 (La.App. 1st Cir. 1966) involved a plaintiff who suffered for an irritated scalp for approximately one month after receiving a hair treatment. All of her hair either broke or fell out and what remained was short, stubby and unmanageable for a period of approximately six months and necessitated her wearing wigs for that period. Plaintiff was awarded $2,000.00 plus special damages.

In Katz v. Employers Group of Insurance Companies, 204 So.2d 695 (La.App. 4th Cir. 1967) plaintiff suffered a burned and irritated scalp and lost all of her hair in an area several inches in diameter. The hair eventually grew back. Plaintiff received $2,500.00 plus special damages.

Finally, in the case of Horton v. Seligman and Latz, Inc., supra, plaintiff’s hair broke off over most of her scalp. She was forced to cut her hair very short and was required to wear hair pieces for approximately five months. For her temporary loss of hair, inconvenience, pain, embarrassment, and anguish, plaintiff was awarded $1,500.00.

In the instant case plaintiff suffered hair breakage in the frontal portion of the scalp only, although she subsequently cut all of her hair very short. Her condition necessitated the wearing of a wig for approximately one year. There was no proof of damage to plaintiff’s scalp, but she suffered some degree of mental anguish and embarrassment.

After considering the general range of awards granted in the above outlined cases, the extent of damages, the dates of said awards, and the evidence adduced as to the extent of plaintiff’s injuries in the case at hand, we feel that a general award of $1,000.00 is adequate and justified under the circumstances presented herein.

For the above and foregoing reasons the judgment of the district court is reversed. Judgment is hereby rendered in favor of plaintiff, Gail McFarland Sheppard, and against defendants, J. C. Penney Company, Inc. and Travelers Insurance Company, in solido, in the amount of $1,000.00, plus legal interest thereon from date of judicial demand until paid. Costs at trial and on appeal are assessed against defendants.

REVERSED AND RENDERED.

      . Plaintiff claimed no special damages. As shown in the opinion, she was gratuitously furnished wigs, wiglets and remedial treatments by tlie defendant Penney after the incident.


author: WATSON, Judge. GUIDRY, Judge

text:
    LOUISIANA LIVESTOCK SANITARY BOARD, Plaintiff-Appellant, v. Arlington MANUEL, Defendant-Appellee.
    No. 5448.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.
    Burgess E. McCranie, Metairie, for plaintiff-appellant.
    Preston N. Aucoin, Ville Platte, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Plaintiff, Louisiana Livestock Sanitary Board, filed this suit against defendant, Arlington Manuel, to obtain a mandatory injunction compelling Manuel to pen his cattle for identification and brucellosis re-testing. The trial court concluded that the Board had not carried its burden of proving brucellosis infection in Manuel’s cattle and dismissed the suit. The Board has appealed.

The principal issue is whether there is manifest error in the trial court’s conclusion that the Board failed to prove its case. Subsidiary issues relate to the sufficiency and admissibility of various evidence.

LSA-R.S. 3:2221 provides that anyone owning cattle with evidence of brucellosis infection or cattle that have been exposed to brucellosis infection shall present and restrain the cattle for identification and testing. Pertinent to this matter are sections A and B of the statute:

“A. Any person owning or having charge of any male or female cattle over eight months of age in a herd which has shown evidence of brucellosis infection, or has intermingled with or otherwise been exposed to brucellosis infected animals, upon at least thirty days prior written notification by an authorized agent of the Livestock Sanitary Board shall present and restrain the cattle for identification and testing, and such infected herds shall be retested until these herds have become classified brucellosis negative as defined in Regulation 17 of the Livestock Sanitary Board. Cattle in open range country shall be worked at a time to correspond to the normal procedure for handling such cattle.
B. Evidence of infection includes finding one or more reactors to an official brucellosis agglutination test on animals bred on the farm, at livestock auction market, at a slaughter establishment or concentration point, or upon official report of a positive brucellosis milk ring test of a dairy herd.”

The Board’s petition for a mandatory injunction alleged: that Manuel had consigned certain cattle to the Tate Commission Barn in Ville Platte; that among these cattle were two animals which were purchased by a Mississippi meat company; and that the blood of the two tested positive for brucellosis.

A rule was issued by the trial court against Manuel to show cause why his cattle should not be penned and tested.

This matter was tried on November 3, 1975. The Board produced three witnesses and various documents to establish its case.

Plaintiff’s first witness, Edwin Tate, testified that in March, 1973 he was a “co-manager” of the commission barn but did not have custody of the records relative to Manuel’s cattle. Plaintiff’s counsel stated that he would produce another witness who was custodian later in the hearing but failed to do so.

Plaintiff’s next witness was Curtis Brown, an employee of the Louisiana Department of Agriculture. He established the method of tagging cattle at sales, but could not testify specifically concerning any of Manuel’s cattle.

Plaintiff’s final witness, Ollie Newton, also with the Department of Agriculture, testified that he went to Manuel’s home on October 25, 1973, and that Manuel declined to allow his cattle to be tested. On cross it was established that Newton did not know how many, if any, cattle Manuel had on that date.

The documents relied on by the Board were chiefly: (1) the records of Tate Commission Barn identifying the cattle; (2) affidavits from persons in Mississippi relating to blood tests for brucellosis; and (3) copies of reports on brucellosis tests. The latter are not affidavits and were clearly inadmissible.

The first essential point in the Board’s case was to establish that the cattle, whose blood was alleged to show brucellosis, were Manuel’s. To do so it was essential to prove the tagging and identification records of the commission barn.

As noted above, Edwin Tate, a co-manager of the commission barn, testified that he did not prepare the records and had no personal knowledge of the tagging and identification of the cattle. Jennings Tate and his wife, the bookkeeper, who had custody of the records of the commission barn, were not called to testify.

The trial court correctly declined to admit the records into evidence. A proper foundation must be laid to receive business records; here there was none.

The Board failed at the outset to demonstrate that the cattle were Manuel’s. It follows that the blood samples to which the affidavits relate were not identified as coming from Manuel’s cattle. The only other testimony on this point was that of Curtis Brown, an employee of the Louisiana Department of Agriculture, who testified that he could not identify the cattle in question as belonging to Arlington Manuel.

A blood sample which is found to be brucellosis reactive must be shown to have come from cattle owned by the person against whom an injunction is sought. Pearce v. Gunter, 221 So.2d 599 (La.App. 3 Cir. 1969); writ refused 254 La. 469, 223 So.2d 872; appeal after remand, 238 So.2d 534; writ not considered 256 La. 888, 239 So.2d 543.

In addition to the failure to identify the cattle as Manuel’s, the Board could not prove the test results by the Mississippi affidavits. The Board contends that its suit is one for a prelimiary injunction and that proof could be made by these affidavits, which the trial court ruled inadmissible.

The admissibility of the affidavits involves the question of whether the injunction sought is merely preliminary and within the purview of LSA-C.C.P. art. 3609 which provides that “(t)he court may hear an application for a preliminary injunction . . . upon the verified pleadings or supporting affidavits . . . ”

This court has not previously resolved the issue of whether, in suits for mandatory injunctions under LSA-R.S. 3:2221, proof may be by affidavits. See Pearce v. Johnson, 213 So.2d 117 (La.App. 3 Cir. 1968); writ denied, 252 La. 960, 215 So.2d 129.

In the instant case, the trial court concluded that the mandatory injunction sought by the Board was a permanent rather than preliminary injunction requiring proof by a preponderance of evidence. The affidavits are in the record as a proffer. The trial court stated;

“Well, I don’t see how there could be any other trial in this one. You know this is the merits. What else is there to try?”

Counsel for the Board answered:

“Well, there is never anything more to try in a mandatory injunction.” (TR. 93)

The mandatory injunction sought would require the penning and testing of defendant Manuel’s cattle and may result in their branding and slaughter. LSA-R.S. 3:2226 and 3 :2227. The granting of such a mandatory injunction requires affirmative action by an owner — perhaps very extensive in the instance of a large herd. The possible branding and slaughter, and the penalties, both civil and criminal, the latter prescribed in LSA-R.S. 3:2232, expose the owner to severe sanctions.

Thus, the mandatory injunction can hardly be equated with a preliminary injunction:

“Ordinarily, a preliminary injunction is a procedural device interlocutory in nature designed to preserve a status pending final determination of an action.” Schwegmann Bros. G. S. Mkts. v. Louisiana Milk Com’n, 290 So.2d 312 at 316 (La., 1974).

We conclude that the injunction sought is not preliminary in nature and can not be tried on affidavits. The trial court properly refused to admit the affidavits into evidence.

We find no manifest error in the trial court’s dismissal of the Board’s suit.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs, insofar as allowed by law, are taxed against appellant.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge

(dissenting).

On November 26, 1973 the plaintiff, Louisiana Livestock Sanitary Board, filed this action seeking an order requiring defendant, Arlington Manuel, to restrain and present his cattle for 'brucellosis testing, under the provisions of R.S. 3:2221, subd. A., which reads as follows:

“Any person owning or having charge of any male or female cattle over eight months of age in a herd which has shown evidence of brucellosis infection, or has intermingled with or otherwise been exposed to brucellosis infected animals, upon at least thirty days prior written notification by an authorized agent of the Livestock Sanitary Board shall present and restrain the cattle for identification and testing, and such infected herds shall be retested until these herds have become classified brucellosis negative as defined in Regulation 17 of the Livestock Sanitary Board. Cattle in open range country shall be worked at a time to correspond to the normal procedure for handling such cattle.”

The defendant answered the plaintiff’s suit denying the allegations thereof and in addition filed a reconventional demand asking for damages as a result of an alleged absolute quarantine imposed by the plaintiff on defendant’s animals and their movements,, and for a declaratory judgment decreeing R.S. 3:2221 and R.S. 3:2223 unconstitutional.

The trial, of this matter, which commenced on November 3, 197S, had been delayed pending a final decision by the Louisiana Supreme Court in the case of Johnson v. Pearce, 313 So.2d 812 (La., 1975). In Johnson, supra, the issues raised were similar, if not identical, with those set out in the defendant’s reconventional demand. The Supreme Court in Johnson, supra, upheld the constitutionality of the cited statutes and held further that the Commissioner’s attempt to enforce R.S. 3:2221 and R.S. 3:2223 would not entitle the cattle owner to damages for malicious prosecution. The record in this matter indicates that as a result of the Johnson decision the defendant abandoned his reconventional demand.

The plaintiff herein, as aforestated seeks an order requiring defendant tO' restrain and present his cattle for brucellosis testing. The order sought is in the nature of a mandatory injunction. The plaintiff’s petition is not clear as to whether a preliminary or a permanent injunction is sought, although plaintiff does make use of summary procedure and prays that the hearing be on verified pleadings and supporting affidavits. The use of summary procedure is not specifically provided for in R.S. 3:2221 but such action was sanctioned by this court in Pearce v. Gunter, 221 So.2d 599 (La.App. 3rd Cir. 1969); 254 La. 469, 223 So.2d 872; appeal after remand, 238 So.2d 534; writ not considered, 256 La. 888, 239 So.2d 543. It should be noted at this point that upon the filing of plaintiff’s petition the trial court ordered that a rule nisi issue, such order further providing that on the trial of said rule evidence might be adduced by verified pleadings, affidavits, depositions, or by oral testimony, as in ordinary cases, or by any or all of such methods at the option of the party offering the proof. This order is dated November 26, 1973. At the trial of this case the plaintiff attempted to present sworn affidavits in support of its application for a mandatory injunction requiring defendant to restrain, and present his cattle for brucellosis testing. The plaintiff at that time argued these introductions were admissable proof under Code of Civil Procedure Article 3609, the court having so ordered, a copy of such order having been served upon the defendant at the time the notice of hearing was sent and a copy of the affidavits having been timely delivered to the defendant.

At the hearing the defendant objected to the plaintiff’s offering. The trial court sustained the defendant’s objection and disallowed the introduction of plaintiff’s supporting affidavits. Presumably, the trial court held that the plaintiff’s action under R.S. 3:2221 was one for a permanent injunction, requiring full proof of the claim, and accordingly declared the plaintiff’s supporting affidavits inadmissable evidence. As a consequence of this action the trial court dismissed the plaintiff’s demand for lack of evidence but allowed the affidavits in the record under a proffer of proof. My brethren of the majority affirm the trial court judgment. I respectfully disagree in that I determine that the mandatory injunction sought by plaintiff herein is a preliminary injunction and the proof offered by plaintiff was sufficient and admis-sable under the provisions of C.C.P. 3609.

In speaking to the difference between the preliminary injunction and the permanent injunction this court in Gulf Toy House, Inc. v. Bertrand, 306 So.2d 361, 364 (La.App. 3rd Cir. 1975) stated:

“A preliminary injunction is a procedural device which is interlocutory in nature. Its purpose is to preserve a status pending final determination of an action. Unlike the permanent injunction, the preliminary injunction may be issued pursuant to a summary proceeding and may be based upon verified pleadings or affidavits, as well as upon ordinary proof, which present a prima facie case that irreparable injury may otherwise result. La.C.Civ.P. arts. 3601, 3602, 3609, Schwegmann Bros., G.S. Mkts. v. Louisiana Milk Com’n., 290 So.2d 312 (La. 1974). Employers Overload Co. v. Employers Overload Co., N.O., 266 So.2d 546 (La.App. 4th Cir. 1972). Cloud v. Dyess, 172 So.2d 528 (La.App. 3rd Cir. 1965).”

La.R.S. 3:2221 in pertinent part provides that under certain conditions owners of cattle, upon written notification by an authorized agent of the Livestock Sanitary Board, must present and restrain their cattle for identification and testing for brucel-losis. It sets forth a test for the evidence of infection and for retesting herds until said herds have become brucellosis negative as defined in Regulation 17 of the Livestock Sanitary Board.

La.R.S. 3:2223 and 3:2227 state a policy of eradication of brucellosis, provide for slaughter of the cattle so infected, and further institute a program to prevent reinfection of livestock with brucellosis, delegating to the Sanitary Board the authority to promulgate necessary rules and regulations to effectuate these purposes.

The state, in enacting this legislation, has determined that brucellosis should be controlled and eradicated. Upon an examination of the cited statutes, mindful of their intent and purposes, it becomes obvious that the provision under which the Sanitary Board in the instant matter has prayed for an injunction, directing defendant to pen and restrain his cattle for testing, is a first step, directed only at determining if the defendant’s cattle do in fact have brucellosis. Upon the issuance of such an injunction the status quo is preserved pending determination as to the necessity for the Sanitary Board to take other and more permanent measures for the eradication of brucellosis, i. e., slaughter of the animals infected, or imposition of an absolute quarantine to prevent the infection of other livestock.

As aforestated we previously held in Pearce v. Gunter, supra, that relief under R.S. 3:2221 can be sought by way of summary procedure.

The irreparable injury which might otherwise result if plaintiff be denied the injunction which it seeks is apparent, i. e., the spread of brucellosis.

Clearly then the injunction sought herein, directing defendant to pen and restrain his cattle for brucellosis testing, is in the nature of a preliminary injunction for it meets all the tests of a preliminary injunction: (a) preservation of the status quo; (b) it is tried summarily; and, (c) its issuance will prevent irreparable injury which might otherwise result.

Having concluded that the injunction sought herein is a preliminary injunction as opposed to a permanent injunction I next determine if the affidavits, submitted by the plaintiff under a proffer of proof, are admissable and if so, do the affidavits constitute sufficient proof to establish the plaintiff’s right to the injunction.

Louisiana Code of Civil Procedure Article 3609 provides:

“The court may hear an application for a preliminary injunction or for the dissolution or modification of a temporary restraining order or a preliminary injunction upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases. If the application is to be heard upon affidavits, the court shall so order in writing, and a copy of the order shall be served upon the defendant at the time the notice of hearing is served.
At least twenty-four hours before the hearing, or such shorter time as the court may order, the applicant shall deliver copies of his supporting affidavits to the adverse party, who shall deliver to the applicant prior to the hearing copies of affidavits intended to be used by such adverse party. The court, in its discretion, and upon such conditions as it may prescribe, may permit additional affidavits to be filed at or after the hearing, and may further regulate the proceeding as justice may require.”

The record in this matter discloses that the court order, in writing and served upon defendant at the time the notice of hearing was served, allowed for the adduction of evidence by verified pleadings and supporting affidavits. The trial court having so ordered I am of the opinion that the affidavits, copies of which were timely delivered to the defendant, were admissable evidence under Article 3609 of the Code of Civil Procedure.

As to the sufficiency of the evidence, plaintiff’s witness, Edwin Tate, manager of Joe Tate’s Commission 'barn testified that the defendant, Arlington Manuel, brought his cattle to the Tate barn where they were tagged for auction. A receipt, issued by the Tate barn and admitted into evidence, showed that the defendant had consigned six (6) cattle to the Tate barn, said cattle bearing tag identification numbers 72TV93S2 through 72TV9357. The sworn affidavits of Norbert Morgan, Dr. James Turnage, and Charles Robinson set forth the following facts. Norbert Morgan, a receiving clerk at Pioneer Beef, Inc. stated that he received two cows from the Tate Commission Barn, bearing tagged identification numbers 72TV9352 and 72-TV9356. Dr. James Turnage, a United States Department of Agriculture Veterinarian in charge at Pioneer Beef Company, performed an ante mortem on the tagged cattle, blood samples were collected, and the tags from the slaughtered cattle were placed around the respective blood sample tubes. Dr. Turnage mailed these tagged samples, bearing the numbers 72TV93S2 and 72TV-9356 to the Veterinary Diagnostic Laboratory, Jackson, Mississippi. Charles Robinson, a supervisory medical biological technician at the Veterinary Diagnostic Laboratory stated that upon receipt of the blood samples one of his subordinates filled out Form ANH 4-54, a Brucellosis Testing Record. The blood samples received, bearing tag numbers 72TV9352 and 72TV9356 were then analyzed and the cows were determined to be reactors, having had a positive reaction to the brucellosis test. These results were entered on the record Form ANH 4-54, which is attached to the affidavit. A second test on these samples was run by Robinson and again found to be positive. R.S. 3 ¡2221(B) provides that “evidence of infection includes finding one or more reactors to an official brucellosis agglutination test on animals ... at livestock auction market, at a slaughter establishment or concentration point

Considering the testimony of Edwin Tate, the accompanying receipt from the Tate Commission Barn issued to the defendant, Arlington Manuel, and the facts as set forth in the three affidavits with attachments, I find that the evidence presented by the plaintiff was sufficient to establish a prima facie case for issuance of the injunction under R.S. 3:2221, subd. A. Accordingly, I would reverse the trial court judgment which dismissed the plaintiff’s action, and render judgment in favor of the plaintiff ordering that the injunction prayed for issue, conditioned upon the plaintiff’s renotification of the defendant, Arlington Manuel, at least 30 days prior to the restraining and testing of defendant’s cattle.

For the above and foregoing reasons I respectfully dissent.

      . A reconventional demand for damages was filed by Manuel against the Board but was not decided. The reconventional demand has apparently been abandoned as a result of the decision in Johnson v. Pearce, 313 So.2d 812 (La., 1975).