text:
    TRAVELERS INSURANCE COMPANY et al. v. Paul SONNIER.
    No. 8556.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Birch P. McDonough, New Orleans, for relator.
    Grayson H. Brown, for respondent.
    Before REDMANN, STOULIG and BEER, JJ.
   REDMANN, Judge.

Defendant was sued for personal and property damage arising from defendant’s rear-ending plaintiff’s insured’s automobile. Defendant third-partied a mechanic who had repaired defendant’s brakes, alleging that brake failure caused the accident. This was a proper third-party demand within La.C.C.P. 1111 because defendant sought indemnity for the damages plaintiff was seeking from defendant. But defendant also sought his own damages to person and property from the collision. On exception to the use of “third party demand” the trial court dismissed the demand for defendant’s own damages. We grant defendant’s application for writs and reverse.

Third-party-defendant argues that the first paragraph of C.C.P. 1111 restricts third party demands to demands for remedy over:

The defendant in a principal action by-petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.

Under third-party-defendant’s view, no defendant could ever make a demand against a co-defendant or a non-party except for indemnification against all or part of the principal demand.

This view is inconsistent with this court’s prior decisions, save one which we now overrule.

Gehr v. Department of Highways, La.App. 4 Cir. 1976, 337 So.2d 691, allowed a defendant to claim his own damages (from the accident he was sued on) from a co-defendant and (citing C.C.P. 463) from a third party as well.

Kennedy v. Joseph, La.App. 4 Cir. 1976, 325 So.2d 769, similarly upheld some defendants’ claims against their codefendants (“the other persons involved in the collision detailed in plaintiff’s original petition”). That those claims were not simply for judgment over is clear from the opinion’s suggestion that the demands “were not third-party demands within the definition of C.C.P. 1111, but rather in the nature of interventions, Bellow v. New York Fire & Marine Underwriters, Inc., La.App. [3 Cir.] 1968, 215 So.2d 350.” 325 So.2d at 770.

Mid-States Ins. Co. v. Fireman’s Fund Ins. Co., La.App. 4 Cir. 1970, 240 So.2d 908, writ refused 257 La. 608, 243 So.2d 274, allowed a defendant driver to claim his own damages from a third party who defendant claimed caused the collision between defendant and plaintiff driver by strewing gravel on the roadway. (The claim for defendant’s own damages was added by amendment to his claim for indemnity.)

Beneficial Fin. Co. of N.O. v. Bienemy, La.App. 4 Cir. 1971, 244 So.2d 275, while accepting that a defendant sued on a note by its payee could make a third-party demand for redhibition of a sale (or for quanti minoris), held that the amount of the third-party demand could not exceed the amount of the main demand: “the maximum judgment in the third party action cannot be for a greater amount [than judgment on the main demand]”, 244 So.2d at 279-280. This limitation on amount would, in every case, prevent a defendant from claiming against a third party (“including a codefendant,” C.C.P. 1111) the defendant’s own damages in addition to the damages the plaintiff demanded.

Beneficial does not mention Mid-States (which might have been deemed not a precedent because it merely allowed the added demand without discussing the issue), and Kennedy and Gehr do not mention Beneficial, which we find impossible to distinguish.

That Beneficial involved a claim against a non-party while Kennedy and Gehr involved claims against co-defendants is not a distinction, since C.C.P. 1111 defines third parties to include co-defendants.

We must overrule either Beneficial or Kennedy and Gehr (and, in its implication at least, Mid-States). To follow the nothing-but-indemnification rule of Beneficial is to require, in every case, that a defendant who wishes to demand his own damages from one properly made a third-party-defendant (“including a codefendant”) must file a separate action against the third-party-defendant which he might then move to consolidate for trial under C.C.P. 1561 (and which probably will be consolidated, at least for trial of the common issues). Moreover, if a defendant can properly “bring in” (C.C.P. 1111) a third party, the question of what demands against that third party can be cumulated would appear to be governed by C.C.P. 462: actions may be cumulated if each is within the court’s jurisdiction and in the proper venue and all are mutually consistent and employ the same form of procedure. (Even if the cumulation is improper, unless for lack of jurisdiction or venue, the court may merely order separate trials of the actions, C.C.P. 464(1).)

Beneficial is also inconsistent with Gallin v. Travelers Ins. Co., La.App. 4 Cir. 1975, 323 So.2d 908, writ refused 329 So.2d 452. There, with en banc approval of overruling an earlier contrary decision, we held that a non-party could intervene in a damage suit to claim his own damages. It would be inconsistent to rule that a party (a defendant) could not claim his own damages from another party (one properly made third-party-defendant) in the same lawsuit.

Finally, Beneficial is inconsistent with the provision of C.C.P. 1111 allowing a third-party-defendant to reconvene against a third-party-plaintiff. Art. 1111 would let a third-partied driver in a collision suit reconvene for his own damages arising out of the same collision, but Beneficial would not let a third-party-plaintiff demand the same kind of damages that a third-party-defendant could demand.

We conclude judicial efficiency is served by allowing a third party demand for judgment over to further demand the third-party-plaintiff’s own damages arising out of the circumstances (in addition to the damages demanded of him in the main demand). In our case, efficiency requires that there be only one trial of the questions whether brake failure caused the accident and whether the repairman caused, the brake failure. We can discern no advantage to ruling that that one trial can only be had by filing two petitions (the third-party petition and the separate petition for defendant’s own damages) and then a motion to consolidate, rather than one petition for all the relief defendant may be entitled to. Beneficial Fin. Co. of N.O. v. Bienemy is therefore overruled.

Defendant’s application is granted, and it is ordered that the judgment maintaining third-party-defendant’s exception be set aside and the exception be overruled at third-party-defendant’s cost.

      . Third-party-defendant argues that Gallin is not supportive because the trial court ruled intervenor could not add parties defendant. The correctness of that ruling was not before us and was not decided by us. But see Gehr, supra.

      . Under this court’s internal rule, this opinion has been submitted to the court en banc which has approved overruling Beneficial.


source: Caselaw Access Project

author: REDMANN, Judge. GULOTTA, Judge, STOULIG, Judge,

license: Public Domain

text:
    Ele Waylan PEARCE v. Maxine Bailey, wife of Ele Waylan PEARCE.
    No. 8188.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1977.
    Rehearing Denied April 13, 1977.
    Writ Granted June 2, 1977.

      Garland R. Rolling, Metairie, for plaintiff-appellee.
    John H. Wells, Wells & Breaux, New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON, GULOT-TA, STOULIG and MORIAL, JJ.
   REDMANN, Judge.

The real issue in this appeal from a post-no-fault-divorce alimony award is whether an apparently alcoholic and perhaps menopausal wife, whose continual drunken misbehavior makes living with her insupportable, is at “fault” within La.C.C. 160 so as to deny her alimony.

We deem it not an issue whether the trial judge disbelieved the testimony by the ex-husband and by the couple’s major daughter which detailed the ex-wife’s misbehavior, and believed instead the ex-wife’s testimony that, with the then help of Alcoholics Anonymous which she no longer needs, she had overcome her alcohol problem 15 years before the marital break-up. This is not an issue because the trial judge never gave any hint that he disbelieved the ex-husband and, especially, the daughter: and to disbelieve the daughter would brand her an abominable liar, one who vilifies her mother to help her father evade an alimony obligation arising from a marriage of 20-odd years. Furthermore, the daughter in testimony appears almost sympathetic towards, and not condemnatory of, her mother. The daughter is a registered nurse, and spoke understandingly of her mother’s alcohol problem: she felt her mother was ill. In the absence of an express declaration by the trial judge that he rejected the daughter’s testimony as a charade, we conclude that the trial judge did not disbelieve her testimony (or that of the ex-husband). Had the trial judge deemed the daughter so wanton a liar, he would not have described this as “a very close case, really, and an unfortunate ease.”

We see closeness in the question whether an alcoholic is at “fault” for his drunkenness. If alcoholism is an illness, the alcoholic is no more responsible for his illness than is the diabetic or the hemophiliac. Yet legion are alcoholics who do not drink alcohol, and thus avoid drunkenness. Thus it may, with considerable logic, be said that the sober alcoholic who begins to drink alcohol is at fault in doing so because he knows that he cannot drink in moderation.

We see no closeness in the possible question whether a menopausal wife is at fault for misbehavior caused by menopause. (Defendant ex-wife is of menopausal age, and her ex-husband’s description “impossible to get along with” is suggestive of menopausal problems.) A wife who has behaved supportably well over many years of marriage cannot be fairly denied alimony because menopause during the last year or two makes living with her difficult or even — in the view of a husband who may have his own problems — insupportable. The law cannot blind itself to the comparative involuntariness of menopausal misbehavior. It is not a wife’s “fault” that menopause afflicts her and, through her, her husband.

The evidence before us establishes that the wife’s habitual intemperance made living with her insupportable (prima facie, grounds for separation under C.C. 138(3)), but it also suggests that the wife’s responsibility for her misbehavior is diminished by the illness of alcoholism and possibly menopause (and is conceivably, therefore, not grounds for separation). The lay evidence might suffice to establish the wife’s alcoholism, but alcoholism per se cannot exculpate a spouse for continual drunken misbehavior. However, we decline to equate drunkenness from alcoholism with the “habitual intemperance” of C.C. 138(3) and thus (see Fulmer v. Fulmer, La.1974, 301 So.2d 622) make it “fault” within C.C. 160 in every case. Although the lay evidence here does not suffice to establish it, we suppose it possible that a wife’s individual condition of alcoholism, especially if aggravated by other circumstances such as menopause, could so greatly diminish her responsibility that she should be deemed without fault for purposes of post-divorce alimony under C.C. 160 (as well as for purposes of C.C. 138(3), although that question is not here involved).

That possibility is suggested, though not proven, in our case.

Because the initial determination of fault has life-long consequences, we conclude that the just disposition of this case, C.C.P. 2164, is to set aside the award of alimony and to remand to enable the wife to present (perhaps from her family doctor or gynecologist, or from a psychologist or psychiatrist) expert evidence of the extent to which her alcoholism and other factors reduce her culpability.

The ultimate question is whether the wife’s misbehavior was fairly her “fault” within C.C. 160, in the “general and popular use of the words,” C.C. 14.

Because we remand we do not review quantum. We do, nevertheless, note that Ward v. Ward, La.1976, 339 So.2d 839, rules that the ex-wife’s earning potential is not a factor.

Remanded.

GULOTTA, Judge,

dissenting.

I view this matter as one involving primarily a burden-of-proof question. It is incumbent upon the wife to show her freedom from fault if she is to receive alimony. Although the trial judge did not assign reasons for judgment, the fact that he awarded alimony is based on a finding of the wife’s freedom from fault. When the evidence is taken as a whole, i. e., the testimony of the parties and particularly the daughter, a registered nurse who resided with her parents, it is clear that a prima facie showing was made by the wife that the drinking resulted from alcoholism. In this respect, the daughter, though not a psychiatric medical expert, testified that her mother’s drinking problem is an illness.

I am not in agreement with the majority decree ordering the remand. The decree places upon a practically destitute wife of 25 years, the difficult, if not impossible, burden of obtaining psychiatric medical evidence. The husband’s task, in this regard, would not be nearly as difficult. His net earnings amount to over $1,000.00 per month, and he resides with the daughter and her mechanical engineer husband. I dissent from the majority decree and would award alimony to the wife in the sum of $250.00 per month.

STOULIG, Judge,

dissenting.

I respectfully dissent.

At the time the divorce action was instituted the parties had been married for more than 28 years, 24 of which they resided together as man and wife before they physically separated. Mrs. Pearce obtained a judgment of separation from bed and board on June 14, 1972, predicated on living separate and apart from her husband for more than one year. Subsequently Mr. Pearce filed this divorce action on October 2, 1975, based upon nonreconciliation of the parties and the elapse of more than one year and 60 days from the finality of the judgment of separation.

The trial judge did not render findings of fact when awarding Mrs. Pearce $100 per month post-divorce alimony out of defendant’s average monthly gross earnings of $1,600. From the record I may assume the trial judge based his award of alimony on either of these factual findings: (1) he accepted Mrs. Pearce’s testimony that since joining Alcoholics Anonymous 15 years ago she did not drink; or (2) that he believed the statements by Mr. Pearce and their daughter that defendant drank heavily but concluded the cause was psychological and this would not constitute fault sufficient to deprive her of the right to permanent alimony. (C.C. art. 160.) As did the majority, I too speculate as to what conclusions of fact the trial judge made; however, the evidence reasonably suggests either of the above conclusions.

There is no testimony whatsoever to suggest menopausal unpredictability and both the husband and daughter of Mrs. Pearce stated they never saw her take a drink within recent years. The majority’s reference to “continual drunken misbehavior” is therefore surprising. The testimony of the daughter is adverse to her mother and the record suggests a reason for her hostility might be that the mother disapproved of her daughter’s choice of a husband.

For this court to indulge in speculation not based on evidence in the record violates basic rules of appellate review. When a trial judge views witnesses he has the opportunity to judge their veracity and reliability. This is why great weight should be accorded his judgments. His is a three-dimensional view while our evaluation of testimony is from the limited vantage point of the written word. With respect to finding of fault the judgment of the trial court should be affirmed.

I am convinced from a reading of the record, considering the wife’s needs and the ability of the husband to respond, that the award of alimony should be increased to $230 per month.

      . The ex-husband’s argument that C.C. 160 violates various constitutional principles is answered by Whitt v. Vauthier, La.App. 4th Cir. 1975, 316 So.2d 202, writ refused La., 320 So.2d 558.


author: JONES, Judge.

text:
    Charles B. BICE et al., Plaintiffs-Appellees, v. SOUTHSIDE MOTORS, INC., Defendant-Appellant.
    No. 13160.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.

      Hayes, Harkey, Smith & Cascio by Louis D. Smith, Monroe, for defendant-appellant.
    Bice, Russell & Allen by Charles B. Bice, Winnfield, for plaintiffs-appellees.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Southside Motors, Inc., defendant and plaintiff in reconvention, appeals from a trial court decision finding it owed rent of $1350, maintaining a writ of sequestration on its movable property, and rejecting its reconventional demand. We affirm the trial court as to the demand for rent, but reverse its decision on the reconventional demand, dissolve the writ of sequestration, and award damages.

Plaintiffs, Charles B. .Bice and William M. Russell, verbally leased a building in Winn-field, Louisiana to defendant for use as a furniture store, commencing in February, 1975. Plaintiffs claim the rent for the building was agreed to be the greater of $350 per month or a percentage of gross receipts based on a sliding scale. South-side claimed the rent for the building was $350 per month without reference to gross receipts. There is no dispute Southside paid rent of $350 per month for each month during the term of the lease.

Plaintiffs testified they met with Leon F. Surratt, owner and president of Southside Motors, and Gene Dorman, a managerial employee of Southside, in plaintiffs’ law offices in Winnfield on January 25, 1975, and that Surratt agreed to a one year lease of the building for the greater of $350 per month or a percentage of the gross receipts. Bice and Russell also testified Surratt agreed to this rental only upon the condition he would have the right to cancel the lease upon 60 days notice. It was the intent of all the parties a written lease would be prepared to reflect their verbal agreement.

On May 13,1975, plaintiffs mailed a written lease to Surratt for execution, along with a corporate resolution authorizing Sur-ratt to sign the lease and other supporting documents. Russell testified he contacted Surratt on June 13,1975, to inquire why the lease had not been signed and returned. Surratt stated to Russell the signing was unnecessary as he was giving the required 60 days notice of cancellation of the lease. Plaintiffs received a certified letter from Surratt dated that same day which also gave plaintiffs the required 60 day notice of cancellation of the lease. Several weeks later, in late June, Surratt told plaintiffs that he intended to liquidate the stock of the store, and remove all the stock he was unable to sell. At this meeting Surratt also unequivocally denied he owed any rent under the percentage portion of the lease.

Southside began a well advertised liquidation sale on July 3, 1975. On the same day, plaintiffs filed this suit to collect the rent defendant refused to pay under the disputed terms of the rental provision in the verbal lease and, in addition, had all movable property on the premises sequestered. Southside answered, denying any rent was due, and reconvened for damages for wrongful seizure of their property under the writ of sequestration.

Plaintiffs introduced the unsigned written lease and supporting documents into evidence at trial. Surratt testified he refused to enter into the percentage lease agreement proposed by plaintiffs, and they finally agreed to rental in an amount of $350 per month, with Southside to provide all insurance coverage. Surratt further testified he attempted to .call Bice several times after receipt of the written lease in early May to state his refusal to rent under the percentage provisions but was never able to get in touch with him. Dorman’s testimony corroborated Surratt’s statements concerning his refusal to enter into a percentage lease during the January 25, 1975 meeting.

The trial court noted the letter of cancellation, written by Surratt several weeks after he received the written lease containing the disputed percentage rental provisions, made no mention of his disagreement as to the rental provisions. The court found Surratt’s statements concerning his attempted calls to Bice to refuse to rent the building under the terms of the written lease, were not corroborated by any other evidence. The trial court then held although the testimony of the parties present at the time of the confection of the verbal lease was in conflict, plaintiffs had established their version of the verbal lease by a preponderance of the evidence. The trial judge based this decision on finding plaintiff’s actions in preparing and mailing the unsigned lease, when considered in connection with the failure of defendant to prove it promptly objected to the terms of the written lease after receiving it,’ supported a holding that the unsigned written lease embodied the terms of the verbal lease.

Defendant urges the trial court erred in holding plaintiffs carried their burden of proof, stating the jurisprudence is clear where the unsupported testimony of a party having the burden of establishing a particular fact is contradicted by the testimony of the other party, and the credibility of neither is attacked, in the absence of corroborating evidence or circumstances it cannot be said that the party having the burden of proof has sustained that burden. See Johnson v. Johnson, 296 So.2d 470 (La.App., 2d Cir. 1974); Diaz v. Breaux, 252 So.2d 697 (La.App., 1st Cir. 1971). While this statement is correct, it has no application to the situation before us. The finding of the trial court of the failure of defendant to promptly object after receipt of the written lease or to establish by evidence other than the uncorroborated testimony of Sur-ratt that he attempted to telephone plaintiffs and state Southside’s absolute refusal to lease the building under the percentage provisions, is just the sort of circumstances intended by the jurisprudence as sufficient to alone support a party’s otherwise uncorroborated testimony. See Winford v. Wilson, 59 So.2d 498 (La.App., 2d Cir. 1952).

Defendant also urges that plaintiffs have not introduced the testimony of “ . . . one credible witness •. . . ” to substantiate their claim for rent, as required by LSA-C.C. art. 2277, which states:

“ * * * [S]uch contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

The jurisprudence is clear in establishing the requirement of “ . . . one credible witness . . . ” can be satisfied by the testimony of a party to the proceeding. Burt v. Hebert, 338 So.2d 717 (La.App., 1st Cir. 1976).

The findings of fact by the trial court are entitled to great weight and much discretion, and we cannot say the trial judge abused this discretion. As stated in Canter v. Koehring, 283 So.2d 716 (La.1973):

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. . . . The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate, . . . witnesses . . . but also upon the proper allocation of trial and appellate functions between the respective courts.” Id. page 723.

The decision of the trial court awarding judgment against Southside for $1350 as unpaid rent is correct.

Defendant also asserts it is entitled to damages and attorney’s fees for a wrongful seizure of its property claiming the writ of sequestration should not have been issued because the grounds stated for issuance of the writ in plaintiffs’ verified petition are not established.

Plaintiffs’ petition asserted defendant had agreed to the percentage rent agreement earlier discussed, and payments under this agreement were past due at the time suit was filed. Plaintiffs further asserted they had a lessor’s privilege over the property on the leased premises, and it was within the power of the defendant to conceal, part with, or dispose of the property located on or about the leased premises. Based on these grounds, plaintiffs asked for issuance of a writ of sequestration over all the movable property of defendant on the leased premises.

In our earlier discussion, we found the written, unsigned lease embodied the terms of the agreement between the parties. In that lease, following the terms of the sliding scale provision, is the following statement:

“The actual lease payments [under the sliding scale] will be calculated at the end of the ¡ease. However, payments to be credited to the actual lease payment will be made monthly, in advance, by the 10th of the month, in the amount of Three hundred fifty and 00/100 dollars ($350.00) per month.” (emphasis added).

Therefore, the rent under the sliding scale provision was not yet due when suit was filed and the writ of sequestration was issued. It was also established defendant was not in arrears in its monthly rent payments. It being established there was no rent yet due at the institution of this suit, the writ of sequestration based on past due rent was improperly issued and should be dissolved.

Although plaintiffs had established at trial they had sufficient grounds to properly obtain a writ of sequestration to protect their lessor’s privilege based on rent not yet due, LSA-C.C.P. art. 3572, they did not allege these facts in their petition, and could not rely on these grounds to support the writ issued. Hancock Bank v. Alexander, 256 La. 643, 237 So.2d 669 (1970); Wright v. Hughes, 254 So.2d 293 (La.App., 4th Cir. 1971).

Defendant is entitled to receive compensation for its actual damages sustained as a result of the wrongful sequestration. LSA-C.C.P. art. 3506. However, the proof to substantiate claims of damages must be clear and definite and not subject to conjecture. Talley v. Bradley, 177 So.2d 624 (La.App., 3d Cir. 1965); Ralph’s Fleet, Inc. v. American Marine Corporation, 157 So.2d 317 (La.App., 4th Cir. 1963). The only damage defendant has adequately established is $220 for the cost of the bond obtained to release the property seized under the writ. Defendant is also entitled to reasonable attorney’s fees in connection with efforts to dissolve the writ. LSA-C. C.P. art. 3506. We find the amount of reasonable attorney’s fees to which defendant is entitled to be $500.

For the reasons expressed, we affirm the trial court judgment in favor of plaintiffs as regards the award of $1350 for rent due. As to defendant’s reconventional demand, we reverse the trial court, dissolve the improperly issued writ of sequestration, and award judgment in favor of defendant and against plaintiffs in an amount of $720 for damages and attorney’s fees, plus legal interest from date of judicial demand until paid. All costs are to be paid one-half by plaintiffs and one-half by defendant.

Affirmed in part, reversed in part.

      . The percentage provisions of the lease were:
      “Four percent (4%) on the amount of gross sales of goods made by lessee, on the premises, provided such sales do not reach or exceed One Hundred Thousand and 00/100 Dollars ($100,-000.00) for the period this lease is in effect; plus
      “Three percent (3%) on the amount of gross sales over One Hundred Thousand and 00/100 Dollars ($100,000.00) but less than Two Hundred Thousand and 00/100 Dollars ($200,-000.00); plus
      “Two percent (2%) on the amount of gross sales over Two Hundred Thousand and 00/100 Dollars ($200,000.00); plus
      “One percent (1%) on the amount of gross sales in excess of Three Hundred Thousand and 00/100 Dollars ($300,000.00).”
      Plaintiffs stated in its answer to interrogatories the gross receipts for the period it occupied the building were $94,512.56. The trial court found after applying the applicable percentage of the sliding scale to this amount, when reduced by the monthly rent already paid by defendant as required in the lease, left a sum of $1350 still owed by defendant as rent.

      . “Art. 3572. Sequestration before rent is due

      “A sequestration based upon a lessor’s privilege may be obtained before the rent is due, if the lessor has good reason to believe that the lessee will remove the property subject to the lessor’s privilege. If the rent is paid when it becomes due, the costs shall be paid by the plaintiff.”


author: MARVIN, Judge.

text:
    Joe S. CUSH, Plaintiff-Appellant, v. Succession of Travis Thomas HAILEY, Sr., Defendant-Appellee.
    No. 13162.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    Lynch & McWilliams by William B. Lynch, Bossier City, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by J. W. Jones, Shreveport, for defendant-ap-pellee.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiff appeals from the dismissal of his suit on a promissory note on an exception of liberative prescription. We affirm. C.C. Art. 3540.

The note, dated in 1966, was made by the decedent who died in 1974. Plaintiff filed suit on the note in 1975. Plaintiff testified that the decedent gave him in pledge a life insurance policy on decedent’s life which he held until a fire in plaintiff’s store destroyed the policy in 1968. The note shows that a life insurance policy was given as collateral security for the note.

Plaintiff contends the tolling of prescription is interrupted by the pledge even though the possession of the thing pledged does not remain in the possession of the pledgee, citing First National Bank of Shreveport v. Querbes, 253 So.2d 123 (La.App.2d Cir. 1971) and Scott v. Corkern, 231 La. 368, 91 So.2d 569 (1956).

The general rule is that prescription does not run in favor of a debtor whose debt is secured by a pledge, but is interrupted as long as the thing pledged is in actual or constructive possession of the pledgee. It is not the contract or act of pledge that interrupts prescription but rather the retention by the pledgee of the thing pledged which serves as a constant acknowledgement of the debt and renunciation of prescription. Reconstruction Finance Corp. v. Holloway, 191 La. 583, 186 So. 35 (1938); and Succession of Picard, 238 La. 455, 115 So.2d 817 (1959).

In First National Bank of Shreveport, the thing pledged was placed by the parties with a bank for collection and it was expressly recognized that the bank was acting as a trustee. Closer in point is Scott, the second case on which plaintiff relies. There, a life insurance policy was the thing pledged and the pledgee was the named beneficiary of the policy. The policy unex-plainably was found in the pledgor’s lock-box after the pledgor’s death. The court emphasized that the debtor gave written directions to the insurer to make the creditor the beneficiary and to return the policy to a particular bank “with instructions to just hold in escrow as they have already been advised . . . ” Between the time of these instructions (1929) and the time of the debtor’s death (in 1953) the bank failed and went into receivership. In 1940, the bank’s records were lawfully destroyed or disposed of. The court said:

“ ‘Possession, though essential to the validity of the pledge, need not be always in the creditor. It is sufficient that the thing pledged be in the possession of one occupying ad hoc, the position of a trustee. The debtor himself may, in some cases, be considered as such trustee and be given possession of the thing by him pledged, provided his tenure be precarious and clearly for account of the creditor. The Louisiana doctrine is in perfect accord with both the common, the Roman and French laws.’ (Citing a long list of authorities and commentaries from various jurisdictions in suppor¿ of the statement).
“Thus, it is manifest that the mere circumstance that the pledged insurance policy was found in the possession of the pledgor does not justify the conclusion that the pledge was extinguished and, in the absence of any evidence showing that the parties intended that the pledge be terminated or even that the pledgor considered it terminated, it will be presumed that the possession of the pledgor was precarious or as an agent pro hac vice.” 91 So.2d 569, 572.

The court then held that the pledgor-debtor possessed the policy precariously and as trustee pro hac vice for the pledgee-creditor since he did not change the pledgee’s status as beneficiary of the policy or do anything else inconsistent with respect to the pledge during the years before his death. Because of these factors, the court held the running of prescription was continuously interrupted.

Such factors as were present in Scott, are not present here. The record is devoid of evidence showing since 1968 the reissuance of the policy with plaintiff as the named beneficiary, if indeed we assume the policy existed and plaintiff was in fact the named beneficiary on the policy before the fire. We have no policy shown to be in existence (whether in possession of the pledgee or in possession of another who holds for the pledgee) at the time of this litigation from which we can conclude continuous acknowledgement of the pledge and interruption of prescription.

C.C. Art. 3540 states that actions on promissory notes are prescribed by five years. Assuming the policy existed with plaintiff as the named beneficiary before the 1968 fire, does not avail plaintiff. Prescription would have been interrupted during the existence of the pledge but not after the thing pledged was destroyed. See Conger v. City of New Orleans, 32 La.Ann. 1250, 1253 (1880). Under the circumstances shown, the note sued on prescribed in 1973, five years after the 1968 fire, and this suit was not instituted until 1975.

At appellant’s cost, judgment is

AFFIRMED.


author: BOLIN, Judge.

text:
    Eugene B. HOLT et al., Plaintiffs-Appellees, v. James E. MORGAN et ux., Defendants-Appellants.
    No. 13165.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.

      Charles E. Tooke, Jr., Shreveport, for defendants-appellants.
    D. E. Burchett, Jr., Bossier City, for plaintiffs-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiffs and defendants owned adjoining lots in a recorded subdivision. Plaintiffs, alleging the boundary between the two lots had not been amicably or judicially established, brought a boundary action against defendants. Following trial judgment was rendered in favor of plaintiffs establishing the boundary in conformity with a plat prepared by a surveyor who testified for plaintiffs. Defendants appeal, contending the boundary should be fixed as recommended by the court-appointed surveyor. We affirm.

Plaintiffs alleged they owned Lot 104 and the west half of Lot 103 of the Riverside Subdivision located in Bossier City and that defendants owned the east half of Lot 103 and Lot 102 of the same subdivision; that the boundary between the two tracts had never been established; that plaintiffs had their property surveyed by Sammie Craft, an engineer and licensed surveyor, but that defendants refused to acknowledge the correctness of this survey and to amicably establish a boundary between the two tracts; and that it was necessary for the court to appoint a surveyor to survey the property and report his findings.

In the posture of this case it was mandatory that the establishment of a boundary between plaintiffs and defendants be preceded by a survey made by a court-appointed surveyor in compliance with Louisiana Civil Code Articles 833 through 841. Bollin v. Stafford, 297 So.2d 711 (La.App. 1st Cir., 1974) and cases cited therein. The court appointed Charles Coyle to inspect and survey the properties and render his report to the court. Coyle completed the survey and rendered a procés-verbal all in accordance with law. According to his procés-verbal and his testimony during trial, he found an excess of 2.6 feet in the tier of lots number 99 through 114 which he apportioned equally between the sixteen lots.

Craft testified he was employed by plaintiffs prior to this litigation to survey the property and establish a boundary between plaintiffs’ and defendants’ lots. He found 1.9 feet of excess footage in Lots 99 through 114.

When a survey has been made by a court-appointed surveyor it is presumed to be correct. Jewell v. Porche, 2 La.Ann. 148 (1847); Harvey v. Havard, 274 So.2d 917 (La.App. 1st Cir., 1973), affirmed, 287 So.2d 780 (La.1974); Lo-Bar Development Company, Inc. v. Johnson, 340 So.2d 396 (La.App. 2d Cir., 1976). However, this presumption is rebuttable and where there is testimony from other surveyors and the opinions of the experts differ, the court’s decision must be based upon what it considers the preponderance of the evidence. Dufrene v. Bernstein, 190 La. 66, 181 So. 859 (1938).

The trial judge in his written reasons acknowledged that a survey made under court order was presumed to be correct; however, he accepted the Craft survey and stated:

While the two surveyors used the same basic approach in attempting to fix the boundary between the parties litigant, they differ on how the excess footage should be allocated. Mr. Coyle felt that his excess of 2.6 feet should be prorated equally to each of the sixteen lots in the tier. This would mean a gain of about 1.89 inches per lot. Mr. Craft found that 1.75 feet of his 1.9 ft. excess existed in lots 105, 106, 107 and 108 which are all owned by one party. [Not a party to this suit] The remaining .15 ft. he found to exist in the Holt property. Since he found that Mr. Morgan received the exact footage called for in his deed, Craft decided to fix the boundary between the properties of Holt and Morgan in accordance with the ancient monuments found by him.

We find the record supports the conclusion of the trial judge. We also find no error in that portion of the judgment assessing the fee for the court-appointed surveyor as costs and apportioning this cost equally between the parties. Louisiana Code of Civil Procedure Article 1920.

The judgment is affirmed. The appellants are assessed with the cost of this appeal.


author: PRICE, Judge.

text:
    John Horace GILBERT, Plaintiff-Appellant, v. BITUMINOUS CASUALTY CORPORATION, Defendant-Appellee.
    No. 13167.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.

      Campbell, Campbell & Johnson by Cecil P. Campbell, Minden, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

The issue in this workmen’s compensation proceeding is whether the rupture of an aneurysm was causally related to the claimant’s employment entitling him to benefits for a total and permanent disability and related medical expenses.

Bituminous Casualty Corporation is the compensation insurer of Ascot Oils, Inc., the employer of John Horace Gilbert.

The factual background and the issues in dispute are concisely and accurately stated by the trial judge in his reasons for judgment as follows:

, The plaintiff was a “land man” and for several weeks prior to the accident hereinafter described was in the process of acquiring a block of oil and gas leases for his employer. In his employment he drove his automobile several hundred miles each week, examined records in various courthouses to determine availability of property for mineral leasing, contacted land owners, negotiated for leases, and in general did the work customarily done by land men in this area.
The evidence shows that plaintiff had for some time suffered from arteriosclerosis and that an aneurysm had formed upon his abdominal aorta.
On the day of the accident, November 29,1971, he had driven a number of miles in North Louisiana and South Arkansas and while returning from El Dorado to his home in Minden, his car left the road and struck a tree and he was seriously injured.
It was later determined that in the accident plaintiff sustained a fracture of the first lumbar vertebra and he was paid compensation for 114 weeks until his doctor reported that he was able to return to his work. Additionally, all medical expenses in connection with the back injury have been paid.
This lawsuit, however, is not really concerned with the back injury. When plaintiff was examined by Dr. S. W. Pittman immediately after the accident, it was determined that he was suffering from a ruptured aneurysm which, as mentioned above, had previously formed upon his aorta. His condition was critical because of this rupture and as a matter of fact the fractured vertebra was not even detected. He was taken to Schum-pert Hospital in Shreveport where Dr. Wallace Brown repaired the ruptured aneurysm. Plaintiff recovered from this surgery and only after his release from the hospital did he see an orthopedic specialist and receive treatment for the back injury.
While the defendant paid all medical expenses relating to the back injury and workmen’s compensation benefits during his disability attributed to that injury, it refused to pay the considerable medical expenses incurred as a result of the ruptured aneurysm. Plaintiff brought suit initially to recover for these expenses and later amended his suit asking for workmen’s compensation after the defendant terminated the payments when his doctor reported him recovered.
The real dispute in this case is whether the plaintiff’s work related activities caused or contributed to the rupture of the aneurysm. If the aneurysm was ruptured in the accident, or if there is a causal connection between the ruptured aneurysm and his work, then the plaintiff should be successful in this lawsuit. On the other hand, if the aneurysm was not ruptured in the accident and no causal connection is shown, then his demands should be rejected.

The trial court rejected Gilbert’s demands. It found that a preponderance of the medical testimony showed the aneurysm ruptured prior to the accident, and that the medical evidence did not establish a causal relation between Gilbert’s work and the rupture.

The judgment is reversed, and plaintiff is awarded benefits for a total and permanent disability and additional medical expenses for the following reasons.

An employee is entitled to compensation benefits for disability resulting from personal injury from an accident arising out of and in the course of his employment. La.R.S. 23:1031. The rupture of an aneurysm is an “injury by accident” within the meaning of the statute. Francis v. Gerlach Meat Company, Inc., 319 So.2d 534 (La.App. 2nd Cir. 1975). There is no dispute that the injury in this instance occurred within the course of plaintiff’s employment. The difficult problem is the determination of whether the injury was caused by the employment.

• The causal relationship may be inferred when there is proof of an accident during the course of employment with no intervening cause. Leleux v. Lumbermen’s Mutual Insurance Company, 318 So.2d 15 (La.1975).

This court has recently reviewed in detail the development of the jurisprudence permitting recovery of benefits by claimants who have suffered heart attacks, strokes, or related circulatory type injuries. Fields v. Sperry Rand Corporation et al., 343 So.2d 339 (La.App. 2nd Cir. 1977).

In Fields, we summarized the now prevailing jurisprudential rules for recovery as follows:

. When the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown, the statutory requirements for an accidental injury are present. An injury is accidental if it is unexpected and unforeseen and happens suddenly and violently, producing objective symptoms of injury at the time. . . .
It is equally well settled, however, that disability is compensable only if it results from a work-related accident. The question presented is generally factual in nature: is plaintiff’s disability causally related to an employment accident? . It is not necessary that the accident be caused by extraordinary activities of an employee or that the employment activities be the exclusive cause of an accidental injury. It is only necessary that the accidental injury be caused, precipitated, aggravated or contributed to by the actions, exertion or other factors directly connected with the employment. It is immaterial that the disability could have been brought on by causes other than a work-related accident. ...

In Fields, this court followed the standard of medical evidence required to establish causal relationship of employment in heart attack and related cases as set forth in Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975).

The court in Roussel awarded compensation benefits because the medical testimony revealed that the claimant’s myocardial infarction could have been caused or precipitated by the usual and customary actions of the claimant.

In this case, the evidence reveals the ruptured aneurysm could easily have been caused by Gilbert’s customary exertion at work. Prior to the accident, Gilbert had spent two or three weeks assembling oil and gas leases on a 14,000 acre block. He testified he had been working ten to fourteen hours per day. On the day of the accident, Gilbert drove from his home in Minden to Ascot’s office in Shreveport. After spending a short time in Shreveport, he drove to Monroe, back through the Homer oil fields, and on to El Dorado. In El Dorado, he spent two to three hours on his feet checking titles and also visited an attorney. The accident occurred while he was returning to Minden after driving approximately 300 miles on that date.

The stress of this job, particularly to a man of advanced age such as Gilbert, is evident. Dr. S. W. Pittman, who was the first doctor to examine Gilbert after the wreck, testified that an aneurysm may rupture as the result of the stress of increased blood pressure, and that he believes it reasonable that the nature of Gilbert’s work could have caused the rupture. Although Dr. Brown was more guarded in his opinion on the possibility of the employment being a cause of the rupture, he admits it clearly could have been the cause.'

In light of the presumption of causation established by Leleux and the medical testimony at trial, plaintiff has shown his employment was a precipitating cause of the rupture of the aneurysm.

The evidence reveals that the combination of pre-existing arteriosclerosis, the ruptured aneurysm, the injured back, and advanced age render Gilbert totally and permanently disabled.

There is no showing that defendant’s termination of payment of compensation benefits or its refusal to pay the medical expenses connected with the ruptured aneurysm was arbitrary or capricious. Therefore, plaintiff’s claim for penalties and attorney’s fees is denied.

For the reasons assigned, the judgment of the district court is reversed and it is ordered, adjudged, and decreed there be judgment in favor of John Horace Gilbert against Bituminous Casualty Corporation for workmen’s compensation benefits at the rate of $49 per week beginning November 30,1971, and continuing for the duration of plaintiff’s disability, not to exceed 500 weeks, with legal interest thereon from the due date of each weekly payment until paid.

It is further ordered that all accrued amounts together with interest be paid in a lump sum subject to a credit for the amount of compensation previously paid plaintiff of 114 weeks from November 30, 1971, through February 4, 1974.

It is further ordered that defendant pay unto plaintiff the sum of $5,040.31 for accrued medical expenses together with legal interest thereon from date of judicial demand. Costs of this appeal together with costs of the trial court are assessed to defendant.


text:
    ARK-LA-TEX BUILDERS & REALTY, INC., Plaintiff-Appellant, v. Paul L. HOGE, d/b/a Camper Sales, et al., Defendants-Appellees.
    No. 13169.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    Charles E. Tooke, Jr., Shreveport, for Ark-La-Tex Builders & Realty, Inc.
    Edmund M. Thomas, Shreveport, for Paul *L. Hoge.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for Terry Industries of Texas, Inc.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

In a redhibitory action, the trial court denied rescission of the sale of a travel trailer, but allowed a reduction of $500 in the purchase price. Plaintiff appeals. We affirm.

The issues are factual, and primarily concern to what extent, if any, the trailer was rendered useless because it allegedly leaked. The testimony conflicted as to the existence and extent of the leakage at given times and as to the success of defendant’s efforts in stopping the leak or leaks. Mitigating against plaintiff’s claims that the trailer leaked extensively so as to render it useless, was evidence relating to a somewhat regular and periodical use of the trailer while it allegedly leaked for some nine months between the purchase and the filing of suit; the partial renovation of the trailer and testing for leaks by the manufacturer after suit was filed; and the testimony of plaintiff’s expert repairman that the leak or leaks complained of could be permanently repaired for $350.

If the evidence in a redhibitory action establishes only a partial failure of consideration, the trial court is empowered to decree reduction. LSA-C.C. Art. 2543. The Civil Code speaks only in general terms as to the circumstances under which the court in its discretion, may grant reduction instead of redhibition. Redhibition is the remedy when the defect in the thing sold renders it (1) “. . . absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased [the thing], had he known of the vice” (Art. 2520), or (2) . . useless and altogether unsuited to its purpose . . .” (Art. 2541).

Art. 2541 also allows the purchaser a reduction in the purchase price when the defect is “such as merely to diminish the value [of the thing sold] . . .” Art. 2542 likewise allows the purchaser reduction when a declared, but missing, quality of the thing sold is not of “such importance as [would] induce him to demand a redhibition.”

Under these codal principles, if the circumstances of the particular case are such that the defect complained of does not render the thing sold useless, or its use inconvenient to the degree that it is altogether unsuited to its purpose, the court is warranted in denying redhibition and granting a reduction. In any case, this is essentially a factual determination best made by the trial court. See Williamson v. Strange, 323 So.2d 875 (La.App. 2d Cir., 1975) and cases cited therein; Wade v. McInnis Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir., 1975).

The lower court, in its written reasons for judgment, considered all of the factual issues and resolved them against plaintiff-appellant. We find no error on the part of the lower court in allowing the reduction in the purchase price instead of rescinding the sale. At appellant’s cost, judgment below is

AFFIRMED.


author: HALL, Judge.

text:
    James J. O’DONNELL, Jr., Plaintiff-Appellee, v. FIDELITY GENERAL INSURANCE COMPANY et al., Defendants-Appellants-Appellees.
    No. 13170.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.

      Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendant-appellant Market Ins. Co.
    Booth, Lockard, Jack, Pleasant & LeSage by Henry A. Politz, Shreveport, for plaintiff-appellee James J. O’Donnell, Jr.
    Pugh & Nelson by Robert G. Pugh, Shreveport, for defendant-appellee Yellow Cab Company of Shreveport, Inc.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff, James J. O’Donnell, Jr., was injured on October 19, 1969, when he was struck by a taxicab driven by an employee of Yellow Cab Company of Shreveport, Inc. He filed suit against (1) the driver, Ella Mae Lampkin; (2) Yellow Cab Company; (3) Fidelity General Insurance Company, the primary insurer of Yellow Cab with policy limits of $25,000; and (4) Market Insurance Company, excess insurer of Yellow Cab with policy limits of $75,000. The action was stayed against Fidelity General, which had been placed in conservation.

After trial, judgment was rendered in favor of plaintiff against the remaining defendants in solido for $97,760.88, with Market Insurance Company’s liability being limited to the amount over $25,000, or $72,-760.88, together with 7% interest from date of judicial demand until paid and all costs.

Market appealed, contending that the damages awarded were excessive, that the terms of its policy relieved it of liability for interest and costs, and, alternatively, that legal interest should be at the rate of 5%. Plaintiff and Yellow Cab answered the appeal, asking that the judgment be interpreted or modified to cast Market with all legal interest on the total amount of the judgment and all costs. We affirm the principal amount of the judgment and modify it to clarify the liability of the parties for interest and costs.

Quantum

Plaintiff’s injuries were a fracture of the proximal fibula, torn cartilage and ligaments in the right knee, and a sprain in the lower back. He underwent surgery on the knee, was hospitalized for over a month, and wore a full leg cast for another two weeks. When the cast was removed, the knee was found to be unstable, and the leg was swollen and discolored. In late March, plaintiff reentered the hospital. He was diagnosed to be suffering from a serious case of thrombophlebitis, an inflammatory reaction of blood vessels associated with the formation of a clot. The attending physician testified that the phlebitis was a frequent complication following surgery and resulting inactivity. The right leg was very swollen, and was still extremely swollen and discolored at the time of trial.

The phlebitis is chronic, permanent, and likely to worsen with the passage of time. The condition makes further surgery on plaintiff’s unstable knee impossible. Plaintiff’s back condition, described as a severe sprain, cannot be corrected due to his circulatory problems. The trial judge found that the injuries “are serious, permanent' and were nearly fatal.” He further found that the accident “had seriously reduced the vitality and life expectancy of an extremely energetic individual.” He awarded $10,-260.88 in special damages and $87,500 in general damages.

The combination of the phlebitis, the bad knee, and the sprained back has been disabling. Plaintiff functions with difficulty, and the testimony of the attending physician establishes that his condition is likely to worsen rather than improve. Under these circumstances, the trial judge did not abuse his discretion in the award of damages. See Coco v. Winston Industries, 341 So.2d 332 (La.1976).

Interest and Costs

Market’s insurance policy expressly excludes interest on judgments and costs from the coverage provided by the policy. Although plaintiff and Yellow Cab argue that the policy provisions are contradictory and ambiguous, the exclusion is express. The policy provides that the insurer agrees to indemnify the insured in accordance with the applicable insuring agreements of the primary insurance against “loss” as fully and to all intents and purposes as though the primary insurance had been issued for the combined limits of the two policies. However, “loss” is defined to exclude “all expense and costs.” The term “costs” is defined to include “interest on judgments.”

The provisions of the insurance policy should be given effect except to the extent they conflict with law or public policy.

LSA-R.S. 13-4203 provides that interest shall attach from date of judicial demand on all judgments sounding in damages, ex delicto. Any provision of a liability insurance policy which purports to limit the insurer’s liability for legal interest to less than the legal rate on the amount of the judgment against the insurer from date of judicial demand until paid contravenes the statute and, to that extent, cannot be given effect. Soprano v. State Farm Mutual Automobile Insurance Company, 246 La. 524, 165 So.2d 308 (1964); LeBlanc v. New Amsterdam Casualty Co., 202 La. 857, 13 So.2d 245 (1943); Doty v. Central Mutual Insurance Company, 186 So.2d 328 (La.App. 3d Cir. 1966), writ refused 249 La. 486, 187 So.2d 451 (1966). The statute does not, however, require an insurer to pay legal interest on any amount beyond its policy limits or the amount of the judgment against it. Accordingly, numerous cases hold that an insurer is liable for legal interest from judicial demand only on the amount of the judgment against the insurer and not on the amount of any excess judgment against the insured. Doty v. Central Mutual Insurance Company, supra; Ogaard v. Wiley, 325 So.2d 642 (La.App.3d Cir. 1975); Glazer v. Louisiana Trailer Sales, Inc., 313 So.2d 266 (La.App. 4th Cir. 1975); Richardson v. Tate, 269 So.2d 278 (La.App. 4th Cir. 1972), writ refused 271 So.2d 260 (1973); Inabinet v. State Farm Automobile Insurance Co., 262 So.2d 920 (La.App. 1st Cir. 1972); Orgeron v. Earl Gibbon Transport, Inc., 235 So.2d 134 (La.App. 4th Cir. 1970); McCrossen v. Bieszczard, 234 So.2d 763 (La.App. 4th Cir. 1970); Pittman v. Fowler, 191 So.2d 172 (La.App. 3d Cir. 1966).

Most liability insurance policies contain a “supplementary payments” provision obligating the insurer to pay, in addition to the applicable limits of liability, all interest on the entire amount of any judgment which accrues after entry of judgment and before the company has paid that part of the judgment which does not exceed the company’s liability thereon. This provision has been interpreted to obligate the insurer to pay legal interest from date of judgment on the total amount of the judgment against the insured, even though such judgment exceeds the amount for which the insurer is liable. The reasoning behind the policy provision and the court’s interpretation thereof is to prevent the insured from incurring additional interest because of an appeal by the insurer who has control of the litigation. Doty v. Central Mutual Insurance Company, supra; Glazer v. Louisiana Trailer Sales, Inc., supra; Appleman, Insurance Law and Practice, § 4899; Couch on Insurance 2d, § 56:36. See also Annot., 76 A.L.R.2d 983 (1961).

The excess liability policy issued by Market does not contain a “supplementary payments” provision obligating it to pay interest on the entire judgment from date of judgment. To the contrary, the policy expressly excludes any obligation on the part of the insurer to pay interest on judgments. The holding of the Doty line of cases is not applicable to the insurance policy in this case, and Market is not obligated to pay interest on the entire judgment after date of judgment. Its obligation is limited to that required by LSA-R.S. 13:4203, i. e., legal interest on the amount of the judgment against it from date of judicial demand until paid.

The circumstances of this case would not usually occur. Ordinarily, there would be judgment against the primary insurer, which under the supplementary payments provisions of its policy, would be obligated to pay interest on the amount of the judgment against it from judicial demand until date of judgment and on the entire amount of the judgment after date of judgment. See Ogaard v. Wiley, supra; Glazer v. Louisiana Trailer Sales, Inc., supra; Richardson v. Tate, supra.

The problem in the instant case arises from the inability to obtain judgment against the primary insurer because it was placed in conservation, effectively leaving Yellow Cab uninsured and as a self-insurer as to the first $25,000 of liability. Nothing in the excess liability policy requires Market to assume what would have been the primary insurer’s liability, either for the principal amount or for legal interest on the amount of the primary coverage. Yellow Cab’s payment of legal interest which it would not have had to pay if the primary coverage was effective is due to the failure of the primary coverage — not to any inequities or unreasonable provisions in the excess policy.

Market contends that because its policy states that the company shall “indemnify” the insured for its loss, the contract is an indemnity contract and not liability insurance, and the rules applicable to liability policies do not apply. Numerous cases have rejected this contention in various contexts, one of the more recent being Ralston Purina Company v. Cone, 304 So.2d 735 (La.App. 2d Cir. 1974). The policy issued by Market is in every respect a liability insurance policy. It is even labeled as such by the company itself.

Market also argues that the legal rate of interest should be governed by the date of the accident, which occurred prior to the time that the legal interest rate was raised from 5% to 7%. In ex delicto cases, legal interest attaches from the date of judicial demand. That date fixes the interest rate. Winzer v. Lewis, 251 So.2d 650 (La.App. 2d Cir. 1971), writ refused 259 La. 934, 253 So.2d 379 (1971); Inabinet v. State Farm Automobile Insurance Co., supra; Hebert v. Travelers Insurance Company, 245 So.2d 563 (La.App. 3d Cir. 1971), writ refused 258 La. 903, 248 So.2d 332 (1971). Since the 7% rate was in effect at the time of the filing of the instant suit, interest on the judgment is due at the rate of 7% from the date of judicial demand.

The judgment of the district court cast all defendants in solido for costs. The policy provision excluding payment of costs by the insurer is contrary to LSA-C.C.P. Art. 1920 which provides that the court may render judgment for costs against any party as it may consider equitable. The policy provision cannot be given effect. Ogaard v. Wiley, supra. The assessment of costs against all defendants in solido was within the trial court’s discretion and was not inequitable.

Conclusion

In accordance with the views expressed in this opinion, the judgment of the district court is amended and recast as follows:

It is hereby ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, James J. O’Donnell, Jr., and against defendants, Yellow Cab Company of Shreveport, Inc., Ella Mae Lampkin, and Market Insurance Company, in solido, in the amount of $97,760.88, together with 7% per annum legal interest thereon from date of judicial demand until paid, and all costs of these proceedings; with Market Insurance Company’s liability being limited to $72,-760.88, together with 7% per annum legal interest on $72,760.88 from date of judicial demand until paid and all costs of these proceedings.

As amended, the judgment is affirmed. The costs of appeal are assessed to Market Insurance Company.

Amended, and as amended, affirmed.


text:
    RALSTON PURINA COMPANY, Plaintiff-Appellee, v. Norman J. CONE, Jr., et al., Defendants-Appellants-Appellees.
    No. 13171.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.

      Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley and Frank M. Walker, Jr., Shreveport, for defendants-appellants Henry S. Matthews, Clerk of Court, and Underwriters at Lloyd’s.
    Cook, Clark, Egan, Yancey & King by Sidney B. Galloway, Shreveport, for plaintiff-appellee Ralston Purina Co.
    Campbell, Campbell & Johnson by John T. Campbell and John D. Johnson, Minden, for defendants-appellees Norman J. Cone, Jr. and James Walter Frazier.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff, Ralston Purina Company, filed suit to foreclose a mortgage held by it affecting certain lots in Pleasant Lake Estates Subdivision, Webster Parish. Named as defendants were Norman J. Cone, mortgagor of the property; James Walter Frazier, who bought the property from Cone; and the Clerk of Court of Webster Parish, who had erroneously cancelled the mortgage on the mortgage records. Frazier filed a third party petition against the Clerk and his liability insurer, Underwriters at Lloyd’s, seeking to recover any damages resulting from the foreclosure suit. Frazier had purchased the property in reliance on the public records which showed the mortgage as cancelled and on a mortgage certificate issued by the Clerk which did not list the Ralston Purina mortgage but listed only a $25,000 vendor’s lien and mortgage granted by Cone to Northwest Louisiana Milling Company, Inc.

After trial, judgment was rendered (1) in favor of plaintiff against Cone for $45,200, the balance of the indebtedness secured by the mortgage; (2) in favor of plaintiff against Frazier, recognizing the mortgage as superior to the rights of Frazier and ordering it enforced against the property; and (3) in favor of Frazier against the Clerk and his insurer for $20,650, the value of the property as determined by the district court.

The Clerk and his insurer appealed sus-pensively. Third party defendants contend on appeal that (1) Frazier has suffered no injury or loss because the value of the property is less than the amount of the outstanding $25,000 vendor’s lien and mortgage; (2) alternatively, the measure of Frazier’s damage is the purchase price of the property which he failed to establish; (3) alternatively, the award should not exceed the value of the property, which was established at an amount substantially less than the value found by the trial court; and (4) the amount Ralston Purina would take to release the property from the mortgage is irrelevant and is not an appropriate measure of damages.

In support of the result reached by the trial court, third party plaintiff contends that (1) the proper measure of his damages is the amount Ralston Purina would take to cancel the mortgage, which amount is the appraised value of the property, that is, $20,650; and (2) alternatively, the proper measure of damages is the value of the property, which the trial court found to be $20,650.

All parties concede that in spite of the erroneous cancellation of the mortgage from the mortgage records by the Clerk of Court and the purchase of the property by a third party relying on the public records which showed the mortgage to be cancelled, the mortgagee is entitled to enforce it against the mortgaged property. National Acceptance Company of America v. Wallace, 194 So .2d 194 (La.App.2d Cir. 1967), writ refused 250 La. 467, 196 So.2d 533 (1967).

The statutory basis of the Clerk’s liability is LSA-C.C. Art. 3394 which provides:

“The register of mortgages and the parish recorders performing the same duty, are answerable for injury resulting: 1. From omitting to record such acts as are directed to be recorded in their office. 2. From omitting to mention m their certificates one or several acts existing on their registers, unless in this latter case the error proceeds from a want of exactness in the description, which can not be imputed to them.
“Each register of mortgages and/or parish recorder shall obtain and maintain in effect at all times liability insurance to cover any such errors and omissions which may occur in his office. Any amounts deductible from the coverage of such insurance shall be payable out of his clerk’s salary fund.
“All judgments rendered against the register of mortgages and/or the parish recorders by reason of the liability provided by this article shall be payable out of the clerk’s salary fund.”

The question to be decided in this case is the extent and amount of “injury resulting” from the actions of the Clerk.

Third party plaintiff bought the property in reliance upon the public records and upon the Clerk’s mortgage certificate showing the only encumbrance to be the $25,000 vendor’s lien and mortgage. The actual existence of the Ralston Purina mortgage affecting the property and the enforcement of that mortgage has effectively caused the eviction of third party plaintiff. As between the seller and the purchaser there has been a breach of the warranty against eviction. As between the Clerk and the purchaser there has been a breach of the Clerk’s statutory duty resulting in the eviction of the purchaser. The relationships are closely analogous and the resulting injury to the purchaser is one and the same.

The Civil Code specifically establishes the rights of the buyer against the seller in case of eviction. Article 2506 provides:

“When there is a promise of warranty, or when no stipulation was made on that subject, if the buyer be evicted, he has a right to claim against the seller:
1. The restitution of the price.
2. That of the fruits or revenues, when he is obliged to return them to the owner who evicts him.
3. All the costs occasioned, either by the suit in warranty on the part of the buyer, or by that brought by the original plaintiff.
4. The damages, when he has suffered any, besides the price that he has paid.”

By analogy, the measure of damages provided by Article 2506 should control the damages recoverable by third party plaintiff from the Clerk in this case. Principally, the measure of damages is return of the purchase price paid by Frazier to Cone for the property from which he is being evicted.

The property affected by the Ral-ston Purina mortgage was purchased by Frazier as part of a rather unusual transaction in which Cone, joined by Northwest Milling, conveyed to Frazier several tracts of land containing approximately 1,000 acres. The transferors agreed to discharge several mortgages affecting the property conveyed, including the $25,000 vendor’s lien and mortgage affecting the Pleasant Lake lots. The consideration stated included the transfer of certain preferred stock in Northwest Milling by Frazier and his payment and agreement to pay certain amounts to and for the account of the transferors. The purchase price attributable to the property involved in this suit cannot be determined from the instrument and neither side offered any evidence beyond the instrument to establish the actual purchase' price.

LSA-C.C. Art. 2514 provides:

“If in case of eviction from a part of the thing, the sale is not canceled, the value of the part from which he is evicted, is to be reimbursed to the buyer according to its estimation, proportionably to the total price of sale.”

Frazier is being evicted from part of the property purchased by him. Since the purchase price attributable to this property cannot be determined, the measure of loss is the value at the time of purchase of the part from which he is evicted.

Two appraisers testified at the trial. One estimated the value at not more than $12,-635. The other estimated the value at $20,-650. The trial court found the latter estimate corroborated by prices of previous sales of lots in the subdivision and found the fair market value of the property to be $20,650. Both appraisers testified as to value at the time of their appraisals shortly before trial, but it was established that the property had not appreciated much since the time of purchase. The trial court’s finding as to value was reasonable on the basis of the evidence presented and will not be disturbed by this court.

Third party defendants argue that the property, valued at $20,650, is subject to a vendor’s lien and mortgage of $25,000 and, therefore, has no value to Frazier. By losing the property, they argue, Frazier has suffered no loss or damage.

The $25,000 vendor’s lien and mortgage, granted by Cone to Northwest Milling, dated November 29, 1967, payable in monthly installments of $1,000 each beginning December 27, 1967, has not been cancelled from the mortgage records. However, the note secured by the vendor’s lien and mortgage is prescribed on its face. There is no evidence that the note is unpaid or that it is presently held by anyone other than the payee, Northwest Milling, who was one of the transferors who guaranteed its discharge.

Even if the existence of a secured indebtedness is a relevant consideration in determining third party plaintiff’s damages, which it is not necessary to decide, the evidence does not establish the existence of a viable, unpaid encumbrance against the property or that the value of the property or Frazier’s loss is diminished by reason of the vendor’s lien and mortgage.

For the reasons assigned, the judgment of the district court is affirmed at appellants’ costs.

Affirmed.

      . On a previous appeal in this case, this court held that third party plaintiff has a direct action against the Clerk’s insurer under LSA-R.S. 22:655. Ralston Purina Company v. Cone, 304 So.2d 735 (La.App.2d Cir. 1974).


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    Harry Lavern RAMSEY, Plaintiff-Appellee, v. The HANOVER INSURANCE COMPANY et al., Defendants-Third-Party Plaintiffs-Appellants, v. OUACHITA PARISH POLICE JURY et al., Third-Party Defendants-Appellees. Arnold FRANKLIN, Plaintiff-Appellee, v. John E. SIKES et al., Defendants-Third-Party Plaintiffs-Appellants, v. OUACHITA PARISH POLICE JURY et al., Third-Party Defendants-Appellees.
    No. 13173, 13174.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendants-third party plaintiffs-appellants, Hanover Ins. Co. and John E. Sikes.
    Jones, Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellee, Arnold Franklin.
    Bruscato & Loomis by Albert E. Loomis, III, Monroe, for plaintiff-appellee, Harry Lavern Ramsey.
    Cook, Clark, Egan, Yancey & King by Gordon E. Rountree, Shreveport, for third party defendants-appellees, Ouachita Parish Police Jury and Reliance Ins. Co.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Plaintiffs in consolidated actions arising out of a motor vehicle accident were awarded damages against the driver and automobile public liability insurer of the other vehicle involved. The original defendants asserted third party demands for contribution against the Ouachita Parish Police Jury and its liability insurer. These third party demands were dismissed by the lower court and it is from the dismissal that original defendants appeal. We affirm.

The highway on which the accident occurred is a rural blacktop road, adjacent to which the police jury maintains a five-acre garbage dump. Original plaintiffs were the driver (Franklin) and the owner (Ramsey) of a pickup which was struck from behind by a milk truck driven by Sikes, one of original defendants.

A dense screen of smoke from one or more fires at the dump extended across the highway on the morning of the accident (7:30 a. m.). Franklin stopped the pickup on the highway behind another vehicle which had also stopped before entering the dense smoke screen. Within a few seconds, the wind shifted and the stopped vehicles became engulfed in, and obliterated from sight by, the dense smoke. Franklin turned on his truck lights and began to blow his horn when he heard, but could not see a vehicle approaching from his rear. His efforts proved fruitless and his pickup was struck from behind by the oncoming milk truck. Sikes’ negligence in proceeding blindly into the smoke screen at a relatively high speed is not at issue here. The sole issue here is the concurring negligence vel non, of the police jury with respect to its operation of the garbage pit.

Parish employees were not allowed to burn trash at the dump. Signs prohibiting the burning of trash were placed, and when torn down, were replaced, at the dump. One or more bulldozers were used by the parish to bury trash deposited in the dump in open pits dug for that purpose. The dump had been in use for some time and had reached maximum capacity. Because of this, no one was on duty at the dump on the morning of the accident. Trash disposal facilities were maintained at other locations by the parish.

Notwithstanding the prohibition against burning, scavengers at the dump sometimes started fires in their search for metal to sell as junk. Parish employees inspected the dump daily and immediately extinguished fires when they were discovered or reported. While smoke from fires existed from time to time, it was not of sufficient density or volume to interfere with traffic on the adjacent highway until the time of the accident out of which this litigation arose. All witnesses, including the driver-litigants, who frequently traversed the area, testified to this effect.

It is not negligence for a public body to maintain a garbage dump or to burn trash near a public highway. Badeaux v. Patterson Truck Line, Inc., 247 So.2d 875 (La.App. 3d Cir. 1971) and Bonilla v. Arrow Food Distributors, Inc., 202 So.2d 438 (La.App. 4th Cir. 1967). The predicate of liability is (1) the existence of a dangerous condition; (2) actual or constructive notice of the dangerous condition on the part of the public body whose duty it is to correct it; and (3) the public body’s failure to timely correct the dangerous condition. Cain v. Houston General Insurance Co., 327 So.2d 526 (La.App. 2d Cir. 1976); Mixon v. Allstate Insurance Company, 300 So.2d 232 (La.App. 2d Cir. 1974); Netterville v. Parish of East Baton Rouge, 314 So.2d 397 (La.App. 1st Cir. 1975); and Desselle v. State, Dept. of Public Highways, 328 So.2d 389 (La.App. 3d Cir. 1976).

The record supports the lower court’s findings that the police jury did not have actual or constructive notice of the existence of any dangerous condition (traffic hazard created by smoke) before the accident, and that the police jury was not negligent in failing to pose warning signs along the highway.

At the respective cost of each appellant, judgment in each consolidated case dismissing the third party demands of each appellant is

AFFIRMED.


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    W. B. P. REALTY, INC., Plaintiff-Appellant, v. Leon FONTANA and Reggie Fontana, d/b/a Leon Fontana Contractors, Defendants-Appellees.
    No. 13176.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    Marvin L. Duke, Monroe, for plaintiff-appellant.
    Kidd, Katz & Striekler. by Paul H. Kidd, Monroe, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

This appeal involves the question of whether or not an exception of no right of action must be separately pled and disposed of or whether the exception may be pled and tried with a motion to dissolve a writ of sequestration.

Plaintiff sued defendants seeking a money judgment and in connection with its main demand caused certain property to be sequestered. Following the filing and disposition of pleadings not pertinent to this appeal, defendants filed an exception of no right of action which was included in and coupled with a motion to dissolve the sequestration and grant damages for its wrongful issuance. Plaintiff’s counsel of record was personally served with this motion, together with an order fixing the return date. Neither plaintiff nor its attorney were present when the motion was tried.

The trial court rendered judgment sustaining the exception of no right of action, dissolving the sequestration, and awarding attorney fees for its wrongful issuance, and plaintiff appeals.

Appellant’s only complaint before this court is that the exception of no right of action should not have been heard and disposed of at the same time the motion to dissolve was tried. The appeal totally lacks merit. The judgment appealed from is responsive in every detail to the pleadings which were personally served on plaintiff’s counsel.

The judgment is affirmed at appellant’s cost.


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    Cryel DICKSON d/b/a Dickson Supply Company, Plaintiff-Appellant, v. Frank Scott MORAN et al., Defendants-Appellants.
    No. 13179.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.

      Bethard & Davis by Henry W. Bethard, III, Coushatta, for plaintiff-appellant.
    Richie & Kernaghan by Edward O. Ker-naghan, Shreveport, for defendants-appellants.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff seeks to recover sums expended by him for labor and materials in the partial performance of a verbal building contract, by the terms of which he agreed to build a home for defendant Frank Scott Moran, hereafter referred to as owner. He also sought loss of profits which he would have earned had he been allowed to complete the contract, and demands recognition of a laborer’s and materialman’s lien which he filed affecting the land on which the construction was performed, standing of record in the name of Joe E. Moran, the father of the owner. The owner reconvened for damages consisting of the cost of demolishing the portion of the structure constructed by the plaintiff, along with sums previously paid to plaintiff under the contract, and loss of income. Both the owner and his father demanded cancellation of the lien and asked for damages caused by its wrongful recordation. The trial judge ordered the lien cancelled, and rejected all other demands. All parties have appealed. We affirm.

Under the terms of the verbal contract, the plaintiff was obligated to construct the owner’s home according to plans and specifications prepared by an architect for a total price of $66,400. He commenced the work on November 12, 1974. The owner paid plaintiff approximately $14,000 under the terms of the contract on January 2. On January 20 he stopped plaintiff from performing further work under the contract because of numerous defects in the portion of the house completed and plaintiff’s failure to follow the plans and specifications. The owner had another contractor complete the construction of his home and correct many of the defects which existed in the portion of the structure previously completed by plaintiff.

The principal issues on this appeal are:

I. Did the plaintiff establish he was entitled to any additional sums from the owner for his work on the house after having failed to follow the plans and specifications, and leaving defects in the unfinished structure?

II. Did the owner establish he was entitled to recover the costs of demolishing the structure from the contractor along with recovery of amounts previously paid under the contract?

III. Is a contractor liable for general damages when he wrongfully files a laborer’s and materialman’s lien in good faith and without malice?

I. Claim of contractor

It is implied in every building contract that the work of the builder will be performed in a good and workmanlike manner, and free from defects in either material or workmanship. Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App., 2d Cir. 1974).

The contractor’s liability for noncompliance with the construction contract is governed by Civil Code Art. 2769:

“If the undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

The jurisprudence has construed this article to mean when a contractor has “substantially performed” the building contract, he is entitled to recover the contract price even though some defects are present, and the owner of the house is relegated to having the price reduced by an amount sufficient to perfect or complete the work. Neel v. O’Quinn, 313 So.2d 286 (La.App., 3d Cir. 1975); Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961).

However, if the building contract has not been substantially performed, the contractor’s recovery is limited to quantum meruit, Airco Refrigeration Service, Inc. v. Fink, supra, and if the defects are such that they cannot be corrected except by removing and replacing the construction, the owner may even require the contractor to remove the object from the land and restore the premises to their prior condition, and may also be entitled to damages. Neel v. O’Quinn, supra.

Thus the initial determination to be made in a dispute between the contractor and the owner, such as presented in this litigation, is whether the contract was substantially performed. Plaintiff urges his substantial compliance with the building contract until January 20, 1975 should be considered as a “substantial performance” of the contract. We agree with the trial court that this argument has no merit. “Substantial performance” requires the structure be usable for the purpose which it was intended. Keating v. Miller, 292 So.2d 759 (La.App., 4th Cir. 1974); Cannon v. Van Valin, 211 So.2d 751 (La.App., 4th Cir. 1968). The evidence shows the house was only 25-40% complete when plaintiff and-his employees stopped work on January 20. At that time it was not usable for the purpose for which it was intended and therefore failed to meet the criteria for “substantial performance”.

The trial court found plaintiff breached his contract with the owner because of the numerous defects in the completed portion of the house, and by his substantial deviations from the plans and specifications for the house. The evidence clearly supports this finding. Since there was a breach of contract, the owner had “cause” to terminate plaintiff, and therefore plaintiff cannot recover any loss of profit but is entitled only to recover under quantum meruit. Thibodeaux v. Kern, 143 So.2d 422 (La.App., 3d Cir. 1962).

Plaintiff attempted to show the amount of material and labor that had been expended on the house by introducing various invoices, checks, and check stubs. Although he testified all expenses reflected by these documents were for material and labor used on the owner’s house, most of these contained no notation or other indication they were connected to this house, and several were clearly for items not used in the construction of the house. The trial judge found this evidence did not establish plaintiff had incurred expenses on the owner’s house in excess of the amount he had previously been paid. See Cannon v. Van Valin, supra. The trial judge further held plaintiff did not show the value of the structure, as it existed on January 20, 1975, was more than the amount he had previously been paid. We agree with these findings of the trial court. Plaintiff has therefore not met his burden of proof to recover under quantum meruit.

II. Claim of owner

The owner’s demand for the costs of demolition and removal of the partially completed structure is without merit for the reason he has not proven the structure to be so defective it should have been demolished. The fact that the owner had most of the defects repaired and then completed the structure supports this finding.

The evidence shows the owner had a building that was some 25-40% complete on January 20 when he terminated the contract with plaintiff. Plaintiff established there existed some indeterminate amount of additional material on the property, and these materials were used in further construction on the house. The owner’s claim for reimbursement of approximately one-fourth of the contract price paid by him prior to the termination of the contract was not proven. The owner failed to establish the cost of modifying the structure to comply with the agreed plans and specifications or that the structure existing on January 20, along with the materials left on the premises, were worth less than the amount he previously paid. Henson v. Gonzalez, 326 So.2d 396 (La.App., 1st Cir. 1976).

The trial judge also correctly denied the owner’s request for lost income, general damages and attorney’s fees. Attorney’s fees are not recoverable except where authorized by contract or statute, Stanfield v. Stanfield, 342 So.2d 1195 (La.App., 2d Cir. 1977), neither of which circumstances existed here, and the owner’s alleged general damages and loss of income were not established by the evidence.

III. Claim based on wrongfully recorded lien

The owner and his father complain the laborer’s and materialman’s lien on their property was wrongfully recorded by plaintiff, as he had no rights to such a lien. They ask for cancellation of the lien, attorney’s fees and general damages occasioned by this action of plaintiff’s.

Plaintiff admits he was a general contractor, and was operating without a written contract. Under these circumstances, plaintiff was not entitled to a lien. LSA-R.S. 9:4801, 4802. State ex rel. Bagur Company v. Christy-Ann-Lea Corporation, 223 So.2d 421 (La.App., 1st Cir. 1969); Gauguin, Inc. v. Addison, 288 So.2d 893 (La.App., 1st Cir. 1973).

The jurisprudence is clear that damages are not allowed unless the wrongful lien recordation is made in bad faith or with malice. Patterson v. Lumberman’s Supply Company, Inc., 167 So. 471 (La.App., 2d Cir. 1936); Loeb v. Johnson, 142 So.2d 518 (La.App., 1st Cir. 1962); Stallings v. W. H. Kennedy & Son, Inc., 321 So.2d 411 (La.App., 2d Cir. 1975). Not only did the owner fail to introduce any evidence of bad faith or malice, but plaintiff testified he •recorded the lien in good faith and upon advice of counsel. The trial judge was correct in ordering the inscription of the lien cancelled and erased, and in denying defendants’ request for damages for the rec-ordation of the lien.

For the foregoing reasons, the judgment of the trial court is affirmed, costs of this appeal to be paid one-half by plaintiff and one-half by defendants.

Affirmed.


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    Dorris MORRIS et al., Plaintiffs-Appellees, v. Leon GRAY, Defendant-Appellee, James D. McPherson et al., Defendants-Appellants.
    No. 13180.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.

      Cook, Clark, Egan, Yancey & King by Benjamin C. King, Shreveport, for defendants-appellants James D. McPherson, Norma Jo McPherson, and Empire Fire & Marine Ins. Co.
    John S. Stephens, Coushatta, for defendant-appellee Leon Gray.
    Whitehead & McCoy by C. R. Whitehead, Jr., Natchitoches, for plaintiffs-appellees Dorris Morris & Martha Jean Davidson.
    John G. Williams, Natchitoches, for plaintiff-appellee Martha Jean Davidson.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

This is a tort action by guest passengers in an automobile which collided with the rear end of a dump truck parked on a highway at night. At approximately 2:30 a.m. on October 12, 1975, a convoy of five large dump-bed trucks transporting rock from Arkansas for revetment work on Red River was proceeding south on Highway 1 in Red River Parish. Several miles north of Armistead, one of the trucks developed axle trouble causing the rear tires to catch fire. The burning truck pulled onto the right shoulder of the road. The other drivers, who stopped to render assistance, were concerned that the fire would cause the truck to explode and took precautions to warn passing motorists of the potential danger. A partial roadblock was established north of the disabled truck to warn southbound traffic. The driver of the lead truck in the convoy, J. D. McPherson, instructed his wife to place their truck in the southbound lane south of the burning truck to alert motorists traveling from the south. Mrs. McPherson positioned their truck at an angle so that the headlights beamed in a southeasterly direction across the northbound lane of travel. No flares were placed by Mrs. McPherson at their truck as they had been taken by Mr. McPherson for use at the burning truck.

Approximately thirty minutes later, an automobile owned and driven by Leon Gray approached this scene from the north. Gray was carrying three guest passengers: Dorris Morris, Martha Jean Davidson, and Willie Mae Bonner.

Gray observed the warning given north of the burning truck and passed the hazard by pulling over to the extreme left side of the highway. After passing, he pulled his car back into the right lane and accelerated. He then saw the McPherson truck, applied brakes, and skidded into the rear of the truck with considerable force.

Dorris Morris filed this action seeking damages for personal injuries, loss of wages, and related expenses resulting from the accident. He contends the accident was caused by the concurring negligence of Leon Gray and the McPhersons. These parties are made defendants along with Empire Fire and Marine Insurance Company, the liability insurer of the McPherson truck.

Martin Jean Davidson has intervened seeking damages for personal injuries and related expenses against the same defendants.

The trial court rendered judgment against all defendants, in solido, awarding Dorris Morris damages of $49,858.00 and Martha Jean Davidson damages of $10,-221.50.

Appellants contend primarily that the sole cause of the accident was the negligence of Gray in failing to see the parked truck, driving at an excessive speed, and being intoxicated to the extent his reaction ability was impaired. They further contend that the only negligence imputed to the McPhersons by the trial judge was the failure to place warning flares as required by La.R.S. 32:141, and as they were acting as Good Samaritans in an emergency situation, this statutory violation was not a legal cause of the accident. Appellants also contend in the alternative that plaintiffs were contributorily negligent in riding with Gray who they knew or should have known was under the influence of intoxicating beverages.

The defense of contributory negligence is without merit. We pretermit any consideration of whether Gray was intoxicated to an extent that his condition was a contributing factor in his failure to see the truck in time to avoid the collision. There has been no showing made by appellants that plaintiffs should have known or believed Gray was intoxicated by his appearance, driving, or other actions at the time they accepted a ride in his automobile. The investigating trooper who had known Gray for several years, testified he had no reason to believe Gray was under the influence at the time he questioned Gray at the scene of the accident. He ordered a blood alcohol test because there was an odor of alcohol present and several open cans of beer in Gray’s car. Appellants rely on the results of the test showing .10 grams blood alcohol content and the fact that plaintiffs had been with Gray for several hours prior to the accident at night clubs in Powhaten and Grand Bayou. There is no evidence that Gray consumed anything other than beer or that he had been noticeably affected by the quantity consumed. The trial judge made a specific finding that Gray was not intoxicated.

The Supreme Court rejected the defense of assumption of the risk by voluntarily riding with an intoxicated driver under much stronger evidence than is present in this case. See Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976). Under this recent guideline, appellants have clearly failed to prove contributory negligence.

We further find no manifest error in the conclusion of the trial court that the McPhersons were negligent in failing to provide warning flares at their parked truck under the weather conditions that prevailed on the night of the accident.

The evidence shows there was intermittent fog in the area. Although the evidence on the degree of visibility is conflicting, there is testimony showing it was difficult to see the rear of the McPherson truck from the site of the burning truck, a distance of approximately one quarter mile. The angle at which the truck was parked made it even more difficult for an overtaking motorist to see under the impaired visibility. Because of these circumstances, McPherson should have foreseen the danger his parked vehicle would present to southbound drivers after they had passed the apparent scene of danger. The “Good Samaritan” rule is not applicable to the facts of this case. Sufficient time had elapsed for McPherson to have recognized the hazard his vehicle posed without proper warning flares.

Appellants lastly contend the general damages awarded by the trial judge are excessive and should be reduced.

Dorris Morris was thrown into the windshield as a result of the collision. He suffered severe facial lacerations and a back injury. He continues to complain of numbness in his arm, headaches, and blurred vision. There is also evidence showing his ability to remember has been diminished by the trauma to his head. Dr. Fred Willis, who has treated Morris since his release from the hospital, testified that he believed Morris would be unable to reenter the work force due to the accident.

Dr. John Valiulis, a plastic and reconstructive surgeon, testified that four separate surgical procedures would be necessary because of the severe scars on Morris’ face. Dr. Valiulis further testified Morris would have permanent scars even after the plastic surgery.

In view of this medical evidence, the $40,-000.00 award for general damages to Morris is not an abuse of the discretion accorded the trial court in determining damages for personal injuries.

Martha Jean Davidson was rendered unconscious at the time of the collision. She suffered facial lacerations and contusions, a cervical sprain, and a concussion. She was subjected to cervical traction and faces plastic surgery to repair her facial scars. The trial court’s award of $7,500.00 is within the bounds of discretion.

The judgment is affirmed at appellants’ costs.