author: SAMUEL, Judge. LEMMON, Judge,

text:
    STATE ex rel. MAPLE AREA RESIDENTS, INC. v. BOARD OF ZONING ADJUSTMENTS, and Jack R. Cahall.
    No. 9586.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.

      McCloskey, Dennery, Page & Hennesy, Edward J. McCloskey, New Orleans, for plaintiff-appellant.
    Donald A. Hoffman, City Atty., Joseph E. Berrigan, Jr., Asst. City Atty., for defendant-appellee, Bd. of Zoning Adjustments.
    Gertler & Gertler, James H. Looney and M. H. Gertler, New Orleans, for defendant-appellee, Jack R. Cahall.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff, Maple Area Residents, Inc., sought reversal in the district court of a decision of the Board of Zoning Adjustments of the City of New Orleans granting Jack R. Cahall a variance from one of the requirements of the Comprehensive Zoning Ordinance for the City of New Orleans to permit him to convert a two-family residence to four offices at 7840 Maple Street. The property has insufficient off-street parking to meet the zoning requirements for offices.

After submission on stipulations, the trial judge rendered judgment upholding the Board’s decision giving as reason therefor his inability to conclude the Board acted arbitrarily, capriciously, or in violation of the discretion afforded it. Plaintiff has appealed from that judgment.

Plaintiff is an incorporated neighborhood improvement association, the avowed purpose of which is the protection of the neighborhood and promotion of strict enforcement of zoning laws designed to protect the neighborhood.

Defendant obtained the property on January 30, 1975, at which time it was a residential duplex. By September, 1975 he completed the conversion, and during that month he rented three of the office units to a real estate firm, an art gallery and an engineering firm. On July 28, 1975 Cahall also purchased property at 729-31 Fern Street, contiguous to the Maple Street property at its rear property line.

After urging by neighborhood residents, the Department of Safety and Permits of the City of New Orleans inspected the Maple Street premises on December 5, 1975. The inspection determined Cahall did not have the necessary use and occupancy certificate and the premises did not have off-street parking spaces required by the zoning law.

The Department notified Cahall of the variations on December 8, 1975, and on December 17 he applied to the Board for a variance reducing the number of required spaces from four to two in connection with “proposed conversion residence into three offices and one residence.” The variance request was denied on January 9, 1976 by the chief building inspector for the Department of Safety and Permits because compliance with off-street parking requirements necessitated waiver of more than two off-street parking spaces.

Cahall’s application for a variance was subsequently altered to request a waiver of six of the required twelve parking spaces and to allow parking in the front yard required by the zoning ordinance. Notice of public hearing was given by the Board on September 9, 1976 and a public hearing was held on September 16, at which time various neighborhood residents presented vigorous opposition to the variance. On October 6, 1976 the Board published its decision to permit conversion of the property and to permit stacked parking. However, the Board denied Cahall the right to park in the front yard area and made its approval contingent on Cahall’s submitting to the Board a letter outlining a parking procedure which would be sufficient to' make practical use of a paved area adjacent to the property for stacked parking.

Plaintiff argues the variance allowed by the Board was not within its discretion for numerous technical reasons. However, its primary argument is that the Board acted on the variance in favor of Cahall solely to protect his economic interest in the property. They argue that if he undertook the conversion without obtaining proper permits and variances in advance, mere financial hardship caused by his own failure to obtain necessary approval is not sufficient justification under the zoning ordinance to grant a variance.

The technical arguments by plaintiff are not persuasive and need no extensive discussion. For example, plaintiff argues the Board’s decision is invalid for failure to comply with its own procedural requirements in that it did not conduct a hearing on the application for a variance within 45 days of receipt of the application. It is obvious this provision benefits Cahall and not the surrounding neighbors. Cahall makes no argument regarding this technical variation from the Board’s procedure, and the issue is therefore moot.

The evidence reveals the building converted by Cahall was in existence in 1970 when the Comprehensive Zoning Ordinance took effect. The lot on which it is constructed forms the corner of Maple and Fern Streets and measures 90’ front on Maple and 40’ front on Fern. The property is zoned B-l, Neighborhood Business District. Offices are a permitted use in a B-l zoning district.

This court previously has held a trial court must afford a presumption of regularity to the decisions of the Board of Zoning Adjustments. While this presumption is re-buttable, a reviewing court cannot simply substitute its own judgment for that of the zoning board or other properly constituted administrative agency. A reviewing court must first determine whether the decision of the Board is supported by substantial and competent evidence. This court will not substitute its judgment for that of administrative tribunals in the absence of a showing by the complaining party that the administrative tribunal was arbitrary and capricious or that it abused its discretion.

The record before us indicates plaintiff purchased a large building on a comparatively small lot. This type construction was characteristic of buildings in New Orleans, particularly prior to the enactment of the Comprehensive Zoning Ordinance. The right of ownership carries with it the right of use, and it seems axiomatic that a property zoned for offices should be so used in the absence of extraordinary circumstances making the use particularly dangerous or inconvenient to the local community.

By definition, a variance is a method of granting an exception to a general rule which, if applied literally and strictly, would deny an owner the beneficial use of his property. A variance is a method of alleviating a hardship caused a property owner by the superimposition of a zoning ordinance subsequent to the construction of a building which makes the actual position or construction inconsistent with the zoning uses and requirements thereby allowed. This court has stated previously that each zoning case must be decided on the facts peculiar to it, and no general rule can be formulated as to what constitutes hardship or unusual and practical difficulties sufficient to authorize grant of a variance. No single factor is determinative, and all relevant factors must be considered. Moreover, while economic hardship on the property owner cannot be the only factor to be considered, it nevertheless can be one of the factors considered.

The record before us shows the Board considered smallness of the lot and its B-l zoning when it arrived at its determination to waive or reduce off-street parking requirements. Our analysis indicates it would be, for all practical purposes, impossible to provide off-street parking conforming to the zoning ordinance for any commercial use for which the property in suit is zoned. Aside from economic considerations, the physical facts establish a “peculiar and exceptional practical hardship” in addition to the owner’s economic hardship resulting in his premature conversion of the property without permits and variances.

Considering the Board’s recitation, the existence of all standards for granting a variance provided by the Comprehensive Zoning Ordinance and the entire record of the proceeding, we conclude the granting of the variance is supported by substantial and competent evidence and the Board did not act arbitrarily, capriciously or in abuse of the discretion afforded it by the Comprehensive Zoning Ordinance. Given this finding, we cannot substitute our judgment for that of the Board and must recognize the presumption of regularity of the Board’s decisions.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge,

concurs and assigns reasons.

The purpose of a variance is to provide relief from the literal terms of a zoning ordinance which, if strictly applied, would deny a property owner all beneficial use of his land and thereby amount to confiscation. 2 Anderson, American Law of Zoning § 14.02 (1968). Article 15, Section 2.3, Subsection 1 of the Comprehensive Zoning Ordinance provides nine standards to be applied in authorizing a variance, and the Board cannot grant a variance unless all nine standards are met. In this case plaintiff contends four standards were not met.

1. Subsection 1 a:

“Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district.”

The smallness of the lot and the largeness of the two existing buildings (one was torn down to provide an area for parking) which virtually covered the entire lot constitute special conditions and meet this standard.

2. Subsection 1 c:

“The special conditions and circumstances do not result from the actions of the applicant or any other person who may have or had interest in the property.”

The special conditions and circumstances existed at the time the applicant purchased the property. Whether or not he remodeled the property, he could not have used it for commercial purposes (the use to which it had been rezoned in 1970) without obtaining a variance, and it is therefore immaterial in reviewing the grant of the variance that he did expend a large sum of money in remodeling for commercial use.

3. Subsection 1 g:

“The purpose of the Variance is not based exclusively upon a desire to serve the convenience or profit of the property owner or other interested party(s).”

Here, the purpose of the variance was to avoid a harsh situation resulting from special conditions and circumstances which existed when the applicant purchased the property. The rezoning of the area into a commercial district eliminated or substantially lessened the possibility of beneficial use of the property as a multifamily dwelling, while on the other hand the property could not be used for commercial purposes unless the variance was granted. Thus the applicant was faced with owning property which had no beneficial use.

4. Subsection 1 i:

“The proposed Variance will not impair an adequate supply of light and air to adjacent property, or increase substantially the congestion in the public streets, or increase the danger of fire, or endanger the public safety.”

This is the toughest standard to justify, especially since proof of a negative is required. The streets in the area were already congested because of insufficient off-street parking. However, this situation had apparently resulted from the 1970 rezoning of the area to commercial uses.

The standard under discussion involves considerations of substantial detriment to the public good. Since the determination of congestion is different in commercial areas than in residential areas, and since the standard requires a substantial increase in congestion in an area which is now zoned for neighborhood business use, I cannot say that the Board abused its discretion by finding this standard had been met.

      . Ordinance 4264 M.C.S., effective August 1, 1970. To permit him to convert a two-family residence to four offices at 7849 Maple Street, with insufficient off-street parking.

      . Cahall sold the property to another person while this proceeding was pending. However, because the subsequent purchaser had nothing to do with the facts involved in the appeal, the defendant will be referred to as Cahall.

      . Article 15, Section 2.3, Subsection 5, Comprehensive Zoning Ordinance.

      . Gertler v. City of New Orleans, La.App., 346 So.2d 228.

        .Nassau Realty Company v. City of New Orleans, La.App., 221 So.2d 327. See also Chism v. City of Baton Rouge, La.App., 244 So.2d 48.

      . State v. Board of Zon. Adjust, of City of New Orleans, La.App., 197 So.2d 916.

      . Times Picayune Pub. Corp. v. City of New Orleans, La.App., 316 So.2d 147.

      . Article 13, § 11, ¶ 1, Comprehensive Zoning Ordinance.

      . Article 15, § 223, Subsection 1.

      . See Gertler v. City of New Orleans, supra, note 4.

      . Just as the applicant should not be granted a variance because he remodeled the property before obtaining the proper permits, he should not be denied a variance (if otherwise proper) as a penalty for doing so.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Lee CLINKSCALES v. SUPERIOR PONTIAC-GMC, INC., et al.
    No. 9590.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.

      Bernard, Micholet & Cassisa, Stephen N. Elliott, Metairie, for plaintiff-appellant.
    Ronald S. Ruiz, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff filed suit against Superior Pontiac-GMC, Inc. seeking rescission of the sale of a 1975 Pontiac Grand Prix automobile based upon the alleged existence of numerous redhibitory defects. Plaintiff later amended the suit to include General Motors Corporation, the manufacturer of the vehicle. She also sought damages and attorney’s fees from both defendants. Both defendants answered, denying liability and alleging affirmative defenses, and Superior Pontiac filed a third party demand against General Motors for indemnification.

Following trial on the merits, judgment was rendered in favor of plaintiff and against defendants solidarily for $3,500, and judgment was further rendered in favor of Superior Pontiac against General Motors, granting indemnification.

General Motors has appealed. Plaintiff has answered the appeal, seeking attorney’s fees of $1,500. Superior Pontiac did not appeal and the judgment is final as to it.

In this court appellant contends the trial court committed error in rendering judgment in favor of plaintiff solely on the basis of her complaints of latent defects. Relying on the provisions of Civil Code Article 2530, which states:

“The buyer who institutes the redhibi-tory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”,

appellant argues plaintiff did not prove the existence of a defect before the sale was made and the presumption set forth in that article is not applicable because she did not offer sufficient proof to establish that the defects appeared within three days of the sale.

Plaintiff encountered numerous problems with the automobile, including leaks, transmission slippage, defective windshield washers, improper motor alignment, defective brakes, a cruise control which failed to disengage when the brakes were applied, an air conditioner which did not adequately cool the vehicle, and other defects. The evidence indicates these defects manifested themselves shortly after plaintiff accepted delivery and continued to appear on a regular basis thereafter. When plaintiff took delivery, the vehicle’s engine would not stay running, and she returned it the same day to the defendant dealership. She returned that afternoon to pick up the vehicle, and the next day was obliged to return it for repair of brake problems, which the dealership’s service personnel imputed to air in the brake line. On the third day plaintiff testified she went through an intersection without stopping because the brakes did not function, and shortly after that the vehicle leaked during a rain. Approximately two weeks after purchase plaintiff again returned the vehicle because the power steering did not function and she continued to have trouble with her brakes. Approximately six weeks after the purchase, plaintiff still had problems with the steering and brakes, and also complained the air conditioner did not properly cool the vehicle, the front end vibrated at 50 miles per hour, the back glass leaked badly, and water entered the trunk through an opening between the trunk lid and the body.

All of these defects were not supported by Superior’s records, and defendants produced testimony which contradicted that offered by plaintiff in an effort to show the vehicle was not defective. Plaintiff’s testimony of the defects in some part is based on a diary which she kept. She also introduced the testimony of a mechanic regarding the failure of the cruise control to disengage and the physical possibility that power brakes could fail intermittently while working properly between failures. Plaintiff also introduced lay testimony regarding the failure of her brakes and the inability of the air conditioning system to properly cool the vehicle.

As stated above, defendants produced witnesses which contradicted plaintiff’s evidence squarely with regard to many of the more important defects complained of, and presented substantial questions of fact for the trial judge’s determination. Our settled law is that a plaintiff need not introduce expert testimony to prove the underlying cause of an alleged malfunction, but need only prove the defect or malfunction existed at the time of the sale. In Mattes v. Heintz, this court said:

“. . . The language of LSA-C.C. art. 2530 does not mean that the buyer must prove by eyewitnesses the existence of the vice before the sale, or that such a vice was known to exist. The court may take into consideration such surrounding circumstances as may appear and deduce therefrom the fact of the existence of the vice prior to the sale.”

The Supreme Court in Rey v. Cuccia, made the following statements:

“If the defect appears within three days following the sale, it is presumed to have existed before the sale, Article 2537. However, even where the defect appears more than three days after the sale (as here, when it appeared on the second day of use, but ten days after the sale), if it appears soon after the thing is put into use, a reasonable inference may arise, in the absence of other explanation or intervening cause shown, that the defect existed at the time of the sale.”

The ultimate question of the existence of redhibitory defect and the amount awarded in quanti minoris are questions of fact for the trial judge which should not be disturbed in the absence of manifest error or abuse of the wide discretion afforded him.

In our view, the trial judge clearly did not abuse his discretion in finding the defects existed at the time of the sale; we also find that, although we may disagree with the amount by which he reduced the purchase price, he did not abuse the wide discretion afforded him; and, accordingly, his decision must stand.

The remaining question for our determination is whether the trial judge committed error by not awarding plaintiff attorney’s fees. Civil Code Article 2545 provides for an award of attorney’s fees in a redhibitory action if the seller knows the vice of the thing he sells and omits to declare it. The established jurisprudence of Louisiana has created a presumption that a manufacturer knows the vices of his products and that actual knowledge is not required. This presumption is sufficient to impute knowledge to the manufacturer and justify an award of attorney’s fees.

In Sokol v. Bob McKinnon Chevrolet, Inc., the court reiterated the established rule that evidence of the value of an attorney’s services is not necessary where the services are rendered under the supervision of the court. In Boudreaux v. Mazda Motors of America, Inc., this court increased an award of attorney’s fees by the trial court to include the services of the attorney on appeal. Because the record is before us and because plaintiff’s attorney has rendered services in our presence, we set his fee at $1,000 on the theory that this amount is reasonable under all the circumstances.

For the reasons assigned, the judgment appealed from is amended to grant plaintiff the additional sum of $1,000 against defendant, General Motors Corporation, as a reasonable attorney’s fee. As thus amended, and in all other respects, the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

      . Subsequent to the judgment, plaintiff sold the automobile and admits she is entitled only to relief in quanti minoris and not rescission. See Bendana v. Mossy Motors, Inc., La.App., 347 So.2d 946.

      . Moreno’s, Inc. v. Lake Charles Catholic H. Schs., Inc., La., 315 So.2d 660; Crawford v. Abbott Automobile Company, 157 La. 59, 101 So. 871.

      . La.App., 69 So.2d 924, at 927.

      . La., 298 So.2d 840, at 843.

      . Canter v. Koehring Company, La., 283 So.2d 716; Muller v. A. K. Durnin Chrysler-Plymouth, Inc., La.App., 361 So.2d 1257.

      . See Muller v. A. K. Dumin Chrysler-Plymouth, Inc., supra, note 5. The trial judge could well have proportioned a part of this award to plaintiff for inconvenience. See Meador v. Toyota of Jefferson, Inc., La., 332 So.2d 433.

      . Rey v. Cuccia, supra, note 4; George v. Shreveport Cotton Oil Co., 114 La. 498, 38 So. 432; Muller v. A. K. Durnin Chrysler-Plymouth, Inc., supra, note 5.

      . La.App., 307 So.2d 404.

      . La.App., 347 So.2d 504.

      . Muller v. A. K. Durnin Chrysler-Plymouth, Inc., supra, note 5; Porche v. Robinson Bros., Inc., La.App., 349 So.2d 975; Smith v. Max Thieme Chevrolet Company, Inc., La.App., 315 So.2d 82.


author: GARRISON, Judge.

text:
    Elmo DANIELS v. ALBACH COMPANY, INC.
    No. 9593.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.

      Smith, Walters & Gray, Lloyd R. Walters, Slidell, for plaintiff-appellant.
    Christovich & Kearney, C. Edgar Cloutier, New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   GARRISON, Judge.

On March 28, 1973, plaintiff, Elmo Daniels, was employed by Bagwell Coatings, Inc. as a painter working at the Tenneco Refinery in Chalmette. The work was being done by using an air powered workbasket which was moved up and down the furnace stacks. There was one permanent rigging attached to the stack.

To facilitate the work the Tenneco maintenance engineer, George McLean, requested that another basket be used. The Bag-well foreman, Dwayne Mulvaney, said that it would be necessary to send to Baton Rouge for a suitable stack hook from which to “rig” the workbasket. Mr. McLean suggested it might be quicker to have a hook fabricated locally. Mr. Mulvaney accordingly drew a sketch of the hook and examined the stack to determine the proper dimensions. Such hooks are usually made of 1 — lVs inch cold rolled steel. Mr. Mulvaney testified that McLean took the sketch to Tenneco’s engineers who drew plans of it, including a three dimensional view. Mr. McLean testified that he then brought Mul-vaney’s sketch to Albach for fabrication. In any case there was no indication on either sketch of the intended use of the hook.

The Albach Company fabricated the hook according to the sketch. The only variation from the design was that they used VA inch cold rolled bar steel since they had no lVa inch in stock. The hook was not tested because Albach does not perform tests on their fabrications unless the customer so requests. There were no requirements in the design as to the load bearing capacity of the hook. Albach has fabricated similar hooks, but they had no idea of the intended use of this particular one.

The hook appeared to be very well made and was in accord with the specifications. However, after 1 to 3 days of use it broke cleanly causing plaintiff’s workbasket to fall. Mr. Daniels was left suspended from his independent safety line. The cable holding the basket wrapped around his neck causing scarring and bruises.

Plaintiff filed suit against the Albach Company and the case was heard on December 22,1977. On February 13, 1978 the trial court rendered judgment in favor of defendant, dismissing the suit. Plaintiff has appealed.

“Products liability” is . “helpful as a catch-phrase aid[s] to memory, as on burden of proof, but all tort liability in Louisiana arises exclusively from . [Article 2315] of the Louisiana Civil Code . ” Guilyot v. Del-Gulf Supply, Inc., 362 So.2d 816, 818 (La.App. 4th Cir. 1978), citing, Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978); see also Atchison v. Archer-Daniels-Midland Co., 360 So.2d 599 (La.App. 4th Cir. 1978).

Under the classic Louisiana “fault” doctrine of La. Art. C.C. 2315 plaintiff’s case must fail. Plaintiff did not show that defendant acted unreasonably in the fabrication of the hook. To the contrary, plaintiff established that the hook was made to design specifications and in fact was “very well-built.”

But even if one were to apply the jurisprudential rules of products liability plaintiff would not prevail. To be successful plaintiff must prove: 1. a defect in the product; 2. that at the time of its failure it was in normal use; 3. that it was unreasonably dangerous in that use; and 4. that the injuries were caused by the defect. Davis v. Reliance Elec. Co., 351 So.2d 1238 (La.App. 1st Cir. 1977); w. d. 353 So.2d 1334, 1335; Dixon v. Gutnecht, 339 So.2d 1285 (La.App. 1st Cir. 1976), w. d. 342 So.2d 673.

A product is defective and unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risks involved or if the risks are greater than a reasonable buyer would expect. Welch v. Outboard Marine Corp., 481 F.2d 252 (5th Cir. 1973); Foster v. Marshall, 341 So.2d 1354 (La.App. 2d Cir. 1977), w. r. 343 So.2d 1067 and 343 So.2d 1077. In the case at bar plaintiff did not show that the defendant knew the intended use of the hook, therefore he could not know of the risks involved. It was reasonable for the defendant to rely on the designer-buyer to specify a hook suitable to his own purposes.

It has been stated that “the essence of Louisiana’s strict liability against manufacturers or sellers of products with latent defects is that the purchaser or consumer relied on the representations of the manufacturer or seller that the product was safe for its intended use, and that the danger inherent in the product was within the manufacturer’s or seller’s power to prevent ” (emphasis added). Heirs of Fruge v. Blood Services, 506 F.2d 841 (5th Cir. 1975); at 847; citing Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So.2d 754 (1971). If Albach fabricated the hook exactly to specifications (and there is no proof to the contrary) then it was not within its power to prevent the danger inherent in the product.

Finally, although it is obvious that the hook fabricated by Albach failed, the cause of the failure was not established. It was shown that the design specifications were met (and even improved upon). However, there is no proof that the steel or the fabrication process was faulty. It is possible that the design or specifications presented to Albach were inadequate. In any event, the trial judge must be regarded as having determined that the plaintiff did not prove that Albach’s fabrication was the cause of the accident.

Based upon the record this conclusion is not manifestly erroneous and should not be disturbed on appeal. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

AFFIRMED.


author: BOUTALL, Judge. BEER, Judge,

text:
    Dr. Wilson COUCH v. FRICHTER’S SPORTSMEN’S HAVEN, INC.
    No. 9594.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearings Denied Jan. 16, 1979.
    Writ Refused Feb. 23, 1979.

      Val A. Schaff, III, Schaff & Currier, New Orleans, for Dr. Wilson Couch, plaintiff-ap-pellee.
    Peter A. Feringa, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for Ford Motor Co., third party defendant-ap-pellee.
    Robert J. Prejeant, Watkins, Watkins & Walker, Houma, for M & L Industries, Inc., third party defendant-appellee.
    G. Frederick Seemann, Opelousas, for Frichter’s Sportsmen’s Haven, Inc., defendant-appellant.
    Before STOULIG, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is a case involving a claim for reduction of the purchase price of a sale of a fishing boat.

Briefly stated, the facts are these: Dr. Wilson Couch, appellee in this action, purchased a 26 foot Sport Fisherman’s boat from the appellant, Frichter’s Sportsmen’s Haven, Inc., in July of 1974. The exact date of this sale is a contested issue in this case. This same boat was purchased by Frichter’s from Bluefin Sabre Corp. which was originally named as a third party in this suit, but is no longer in business and was never served. During the first months of service the boat had some engine problems which were remedied by M & L Marine Industries of Houma, Louisiana, under warranty obligations of the Ford Motor Company. Both M & L and Ford were named as third party defendants and are appellees before this court.

The problem at issue developed when Dr. Couch and several companions were on a fishing trip in the boat in June of 1976. On the return trip, the starboard engine developed some trouble evidenced by the emission of steam from the engine. Dr. Couch requested repairs from M & L Industries, but after inspection was informed that the engine block was not manufactured for marine use, but rather was intended for automotive use. Any warranty would only cover automotive use. He was then advised that Ford would not pay for the repairs nor would any repairs done be warranted for marine use. Dr. Couch then authorized installation of a new engine and instituted this action.

After trial on the merits, the trial judge found in favor of Dr. Couch and against Frichter’s in the amount of $2,200 and dismissed the third party actions, which had been brought against M & L and Ford. Frichter’s appeals from this judgment, both as to Dr. Couch and, alternatively as to the third party actions. Dr. Couch answers the appeal praying for an increase in the award to cover all of his expenses, including the cost of the new engine.

Appellant, Frichter’s, first alleges that the claim of Dr. Couch is barred by prescription under Civil Code Article 2534. This Article reads as follows:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.”

Appellant contends that the sale took place on July 10, 1974, the day on which the purchaser signed a document alleged to be the bill of sale. Appellee claims, in the other hand, that this was merely a work order, that he left a $1,000 deposit on this date, and that the sale and transfer of title actually occurred on July 17, 1974. Suit was filed on July 16, 1975.

Our examination of the record discloses that one of the exhibits introduced by ap-pellee, labelled by the trial court Plaintiff’s exhibit No. 4, is entitled “Manufacturer’s statement of origin to a boat or motor.” This document shows the transfer by Blue-fin to Frichter’s dated February 1, 1974. The first assignment (from Frichter’s to Dr. Couch) is listed as having taken place on July 17, 1974 and is signed by James Fri-chter and notarized on the same date. We therefore conclude that the sale took place on July 17th and that the overruling of the exception of prescription by the trial judge was correct.

Appellant next contends that the engine was fit for the purposes intended and was therefore not subject to an action to reduce the purchase price. The trial judge found that the evidence established the fact that the engine was manufactured for automotive use and that, therefore, Dr. Couch was entitled to a reduction in the purchase price. We agree. He stated that Frichter’s was liable for the transfer of engines which were not manufactured to be marine engines regardless of their lack of knowledge as to the difference. We agree.

An action for redhibition or reduction lies notwithstanding the good faith of the seller where the thing sold lacks a quality which it was represented to have, if this quality was a principal motive for making the contract. See Aiken v. Moran Motor Company, 165 So.2d 662 (La.App. 1st Cir. 1964) and Civil Code Article 2529 and 2544.) The marine nature of an engine intended to be one of a matched pair which is purchased to be used in a fishing boat is certainly a principal motive for making the purchase.

Appellees prayer for the reimbursement of all expenses including the new motor, however, must be rejected. The trial judge found that the malfunction occurring in June of 1975 was caused by plaintiff’s negligence rather than any defect in manufacture. A review of the testimony reveals that this conclusion is amply supported by the evidence. The malfunction was apparently caused by a broken belt on the engine. Dr. Couch restarted the engine after the initial breakdown and again attempted to use it for propulsion. The testimony is to the effect that this negligence caused whatever damage there was in the engine. There is, on the other hand, no evidence to link the mistake in the engine’s intended use to this malfunction.

The proper measure of damages in an action to reduce the sale price of an object has been phrased as the difference between the sale price and the price a reasonable buyer and seller would have agreed upon had they known of the defect. Menville v. Stephens Chevrolet, 300 So.2d 858 (La.App. 4th Cir. 1974); Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir. 1975). We feel that this test applied to this case would be most accurately reflected by the amount necessary to give Dr. Couch an installed marine, rather than an installed non-marine engine. In this case Dr. Couch is entitled to damages equal to the amount necessary for rebuilding the automotive engine into a marine engine, rather than a marinized or converted engine, plus expenses of installation.

The only testimony in the record on this point indicates that this could have been done for between $1,500 and $2,500. The expenses for installation, as shown in some of the evidence introduced by plaintiff, come to approximately $500. We cannot, therefore, find that the figure of $2,200 awarded by the trial judge is manifestly erroneous. The trial judge must be given great discretion in matters of this type. See Canter v. Koehring, 283 So.2d 716 (La.) (1973) and Civil Code Article 1934(3).

The trial court found that only Bluefin Sabre Corp. could have been called in warranty, and since it was not cited, that no third party actions were available to Fri-chter’s. The evidence shows Ford was in no way responsible for the adaptation and installation of this engine for marine purposes. M & L’s position in this case is solely that of a repairer for Ford’s warranty obligations. We agree with the trial judge’s dismissal of the third party actions against M & L and Ford.

For all of the above reasons, the judgment appealed is affirmed. Costs of this appeal to be borne by the appellant Fri-chter’s.

AFFIRMED.

BEER, J., concurs in part and dissents in part.

BEER, Judge,

concurring in part and dissenting in part.

I agree with the majority’s opinion in all respects except for that portion of the opinion which affirms a $2,200 diminution in the purchase price.

I agree with my brothers that Dr. Couch would be entitled to the amount necessary to make the engine a “marine engine” comparable in all respects to the other engine that it was originally identified with as one of a pair. However, the burden of proving this differential has not been carried by plaintiff in a manner sufficient to provoke a calculable award. Accordingly, I respectfully dissent from that portion of the majority opinion which affirms the $2,200 award to Dr. Couch.


author: STOULIG, Judge. BEER, Judge,

text:
    Herman RILEY et al. v. AMERICAN MOTORISTS INSURANCE COMPANY et al.
    No. 9596.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.

      Jerald N. Andry and Gilbert V. Andry, III, Edwin R. Fleischmann, Jr., New Orleans, for Herman Riley, plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Timothy T. Roniger, New Orleans, for defendants-appellants.
    Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Herman Riley, individually and as administrator of the estate of his minor son, Carien Jones, obtained an $8,144.05 judgment against defendants, American Motorists Insurance Company; Texaco, Inc.; and Marshall Robertson, Jr., for general and special damages incurred in a bicycle-truck accident.

The accident occurred at 11:30 a. m. on July 4, 1975, on Louisiana Highway 631, an asphalt undivided roadway with one lane for eastbound and one lane for westbound traffic. At the accident site there is a narrow uneven dirt shoulder estimated between one and two feet wide on the west side of the roadway and a railroad track laid parallel to and approximately 20 feet to the side of the road. Residences border the east side of the highway, which, although used mostly by local traffic, has a 45-mile-per-hour speed limit.

Robertson, the truck driver, was proceeding in the westbound lane as was young Jones, the cyclist. Robertson testified that he first noticed the boy on the bicycle when he turned into the highway and was some two to three blocks from the youth. At the same time a train was passing on the track to Robertson’s right and he noticed the boy was watching the train. According to the truck driver the boy was riding on the uneven mud shoulder; according to the boy he was riding in the roadway.

As defendant driver approached young Carien from the rear, he testified he “figured” the boy could not hear or see him. He admitted an awareness of danger first because a child was riding a bicycle in or near the roadway and second because the child’s attention was riveted on the train then moving parallel to the roadway. His response to this situation was to reduce his speed from 15 to 10 miles per hour and to maneuver his vehicle to the left so that as it approached the boy it straddled the center line dividing the traffic lanes. The eastbound lane was clear at the time and it would have been possible for Robertson to pass the boy entirely in the left lane. He did not sound his horn in an attempt to alert the boy to his presence.

What happened immediately before and up to the moment of impact is not certain. According to the truck driver, the youth suddenly turned sharply to his left into the path of his vehicle. According to the cyclist the bicycle was toward the right hand side of the right lane when it was hit. From his testimony it was presumably hit directly from the rear.

Although there are written reasons for judgment, we are not informed how this credibility question was resolved. Rather the trial court held defendants liable because the driver had breached the duty of care imposed by law under the circumstances.

The standard of care by which a motorist’s actions are measured when his vehicle strikes a bicycling youth is stringent. Our jurisprudence describes his duty with the superlative “highest” degree of care. Kelly v. Messina, 318 So.2d 74 (La. App. 4th Cir. 1975); Tate v. Hill, 197 So.2d 107 (La.App. 1st Cir. 1967). As Messina points out, when the child involved is old enough to have his actions measured under standards of contributory negligence, the motorist is generally liable if the evidence establishes he had the last clear chance to avoid the accident.

The facts before us lend themselves to the application of the last clear chance theory. Carien Jones, 12 years old at the time of the accident, was old enough to have his conduct evaluated in terms of negligence. Jones was not paying attention to traffic conditions because he was watching a train moving to his right. Whether he was riding on the narrow shoulder or in the roadway itself (we think the latter is more likely in view of the condition of the shoulder), he was admittedly negligent in not observing traffic conditions around him.

Robertson not only was aware of the presence of the young boy on the highway or shoulder, but also he perceived the youth’s concentration on the train rather than the roadway. There was no question in Robertson’s mind that the bicyclist he approached was dangerously inattentive to traffic conditions. He did respond to the situation. He slowed his vehicle from 15 to 10 miles per hour and he moved from the right lane to a position straddling the center line. However, these maneuvers proved ineffective. He did not try to attract the boy’s attention by sounding his horn; nor did he cross completely to the eastbound lane. We think the highest duty of care contemplates taking every available means to apprise the person in danger of his precarious position and at the same time exercising all maneuvers possible to avoid injury. Thus, we affirm the finding of liability because Robertson, having the last clear chance of avoiding the accident, failed to take all precautionary measures available to him.

Appellants alternatively contend that if their liability is affirmed, they are entitled to a reduction in general damages. The medical evidence establishes young Jones suffered lumbosacral strain, bilateral strain of the cervical muscles, strain of the left sternocleidomastoid muscle and multiple cuts and bruises to the right knee and left elbow. He received diathermy treatments for his back which showed a considerable improvement by November 26, 1975 (approximately five months after the accident) and for the cervical area until December 30, 1975. C.C. art. 1934(3) vests much discretion in the trial judge in assessing damages and we cannot say that the award complained of is excessive.

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

AFFIRMED.

BEER, J., dissents in part with written reasons.

BEER, Judge,

dissenting in part.

I agree with the majority opinion insofar as liability is concerned. However, I believe that the trial court abused its discretion in the amount of the award. In my view, the extreme limit of the trial court’s discretion for an award of pain and suffering was $2,500. Accordingly, I dissent from that portion of the judgment in excess of that amount plus special damages of $644.05.


author: BEER, Judge.

text:
    John E. SMITH v. Louisiana BOARD OF REVIEW OFFICE OF EMPLOYMENT SECURITY.
    No. 9598.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.

      Ivor A. Trapolin, New Orleans, for plaintiff-appellant.
    Marion Weimer, James A. Piper, James A. McGraw, Baton Rouge, for defendant-appellee.
    Before STOULIG, BOUTALL and BEER, JJ.
   BEER, Judge.

John E. Smith’s application to the Department of Employment Security for unemployment compensation benefits was rejected, and he appeals. Throughout the administrative handling of this claim, the disputed issue was whether his separation from employment was the result of his quitting or being fired from his position with United Parcel Service. The Department determined that Smith had quit his job without good cause. He appealed, and the Appeals Referee affirmed. Thereafter, the Board of Review affirmed the Appeals Referee’s decision, but the Civil District Court for the Parish of Orleans set aside the affirmation by the Board of Review and remanded the case for additional evidence. Following the remanded hearing, the Board of Review affirmed, and the Civil District Court affirmed the Board of Review.

Appellant’s narrow but clearly stated contention on appeal is that the administrative determination was not supported by sufficient evidence and, thus, is incorrect as a matter of law. He urges through able and articulate counsel that the evidence produced at the administrative level was legally insufficient because it did not include the crucial testimony of Mr. Dave Karlak, who appellant contends issued the alleged discharge.

LSA-R.S. 23:1634 limits appellate jurisdiction to questions of law where the findings of the Board of Review, in the absence of fraud, are supported by sufficient evidence. See Ware v. Doyal, 320 So.2d 212 (La.App. 3rd Cir. 1975); Lee v. Brown, 148 So.2d 321 (La.App. 3rd Cir. 1962). But, says appellant, the evidence cannot be sufficient without the contravening testimony of the person who (appellant contends) did the firing.

Here, as in McGinnis v. Moreau, 149 So.2d 188, 191 (La.App. 3rd Cir. 1963), where the factual issue also was whether the claimant was fired or quit, the evidence adduced at the administrative levels is open to more than one reasonable construction. But we must not overrule the administrative agency’s factual determination if it is based upon a supportable version.

Conceivably, Smith may have sincerely believed himself fired. But he did not exercise his right to subpoena Karlak, and his own testimony about his alleged discharge is somewhat vague and confusing. His unemployment benefits application form stated that he was discharged for refusal to transfer into another department. Yet, at the hearing, he stated that he was discharged because Karlak disliked him. Though the evidence is, perhaps, susceptible to more than one construction, the record does, we find, support a conclusion that Smith did quit. We cannot say that the absence of Karlak’s testimony has the absolute legal effect of refuting the otherwise acceptable affirmative evidence of Smith’s resignation.

The judgment is affirmed, at appellant’s cost.

AFFIRMED.

      . A different Appeals Referee presided at the second hearing.


author: GULOTTA, Judge. REDMANN, Judge, SCHOTT, Judge,

text:
    SUCCESSION of Lawrence ROUSSEL.
    No. 9601.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Becnel & Becnel, Vacherie, for Mrs. Aldo-nia Alexis Roussel and Olamae Roussel Joshua, appellees.
    Rodney J. Madere, New Orleans, for Henry Roussel, appellant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment upholding the validity of a nuncupative will under private signature, executed August 14, 1969 and probated on March 3, 1977. Plaintiff contends that the formalities of Civil Code art. 1581 were not fully complied with, because less than five of the signing witnesses were residents of St. James Parish, the place of execution of the will. There is no dispute as to the St. James Parish residency of four of the witnesses, but plaintiff seeks to invalidate the will on the grounds that a fifth witness, Whitney J. Jasmine, Jr., was a non-resident of St. James Parish on the day he witnessed decedent’s will. We reject plaintiff’s argument and hold that Whitney J. Jasmine, Jr. was a bona-fide resident of St. James Parish on August 14, 1969.

Jasmine’s residence of origin was St. James Parish. He was born in St. James, attended school there, and continued to attend church there even after his temporary absence from the parish. Because of his economic circumstances, after marriage in 1966, Jasmine lived with his in-laws in St. John Parish. Although Jasmine was residing in that parish with his in-laws on the date he witnessed the will, he testified that he had no intention, at that time, of abandoning his St. James residency.

Jasmine testified further, that he had every intention of returning to St. James Parish as soon as he had found a suitable place to live; that he had made unsuccessful attempts to locate a residence in St. James; that he had purchased a lot in St. James (on January 31, 1970, five and one-half months after the will was made), upon which he intended to build a home. This Act of Sale contains a recitation that Jasmine was a resident of St. James Parish. In this connection, Jasmine testified that he purchased the property with the intention of returning to live in St. James Parish. His testimony is:

“My family was up there and I liked living up there all my life, so I had intended to move on back there as soon as I had the money or so to build my home up there.”

Jasmine registered to vote in St. James Parish when he became twenty-one years of age, but upon his temporary move to St. John he had re-registered in the latter parish. His Voter Registration, made part of the record, indicates that he had voted in St. John nine times between 1966 and the date of the execution of the will; however, he testified that this change of registration to St. John Parish was for the purpose of supporting a “black” candidate who was running for office.

A person retains his bona-fide residence until he acquires another. This rule is in accordance with the doctrine that a domicile once gained remains until another is acquired, where the question is largely one of intention at an unsuspicious time. In Caufield v. Cravens, 138 La. 283, 70 So. 226 (1915), the Supreme Court stated:

“One does not, however, lose his status as an actual, bona fide, resident of a place, either because he finds it necessary to establish his family elsewhere, or does not, in the absence of his family, maintain a domestic establishment in such place. The question is one largely of intention, and the intention of a person, in that respect, is determined by his expression thereof, at times not suspicious, and his testimony, when called on, considered in connection with his conduct in the circumstances of his life.”

We reject the contention of opponents that Jasmine lost his residence of origin because he found it necessary to live with his in-laws in St. John parish and that he registered and voted, on a number of occasions, in that parish. The evidence demonstrates that Jasmine’s intention at an unsuspicious time (expressed in the Act of Sale) was to return to his parish of origin.

Accordingly, we conclude that Jasmine was a bona-fide resident of St. James Parish at the time he witnessed the nuncupa-tive will by private act. The judgment is affirmed.

AFFIRMED.

REDMANN, J., concurs and assigns reasons.

SCHOTT, J., dissents and assigns reasons.

REDMANN, Judge,

concurring.

Whitney Jasmine resided, in the ordinary sense of the phrase, “in the place” (Vacher-ie, of St. James and St. John the Baptist parishes) in which decedent’s nuncupative will by private act was executed. But Jasmine resided in the St. John parish part of Vacherie and the will was executed in the St. James parish part of Vacherie.

La.C.C. 1581’s requirement of five witnesses “residing in the place” the will is executed would not by its wording disqualify witnesses who live in the small, rural “place” identified as Vacherie, as did the six witnesses here — notwithstanding that Vacherie is located principally in St. James parish but partly in St. John parish (in which part two of the six witnesses lived). C.C. 1594, however, expressly declares “residence in the place” should be understood “residence in the parish”. It seems likely, nevertheless, that C.C. 1594 intends to expand “place” beyond village or town to the broader area of the whole parish, so that anyone from anywhere within the entire parish could be a witness, even though he does not reside in the “place”, in the sense of village or area where the will was executed. The “place” Vacherie includes parts of two parishes and thus a literal interpretation of C.C. 1594 would defeat its evident purpose and contract “place” under our peculiar facts, disqualifying witnesses who do reside in the place where the will was executed but not in the parish where the will was executed.

C.C. 13’s injunction not to disregard the letter of the law on the pretext of pursuing its spirit is not applicable here because, on our facts, the law is not “clear and free from all ambiguity”. Applicable, instead, is C.C. 18:

The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.

Testacy is always favored by law, and C.C. 1594 evidently intends to favor testacy by qualifying more witnesses than C.C. 1581 appears to qualify, rather than to disqualify some witnesses that C.C. 1581 appears to qualify.

Accordingly, because Vacherie (of both St. James and St. John) was the “place” any witness residing in Vacherie is competent, notwithstanding that the will was executed in the St. James parish part of Vacherie and the witness’s home is in the St. John parish part of Vacherie.

The substantive due process issue (under La.Const. art. 1 § 2 and art. 1 § 4, guaranteeing the right to dispose of property, subject to “reasonable statutory restrictions”, and under U.S.Const. Amend. 14 § 1) need not be elaborated because Vacherie’s being but one “place” within C.C. 1581 (despite C.C. 1594) distinguishes this case from Soileau v. Ortego, 1938, 189 La. 713, 180 So. 496. Were that not so, Soileau would be distinguishable by its failure to raise the constitutional issue. Especially as applied to a Vacherie situation, because of the statutory trap set by C.C. 1581’s “place” and sprung by C.C. 1594’s rule that place means parish, the rule that a testament must have two extra witnesses unless all five witnesses live within the parish of execution is scarcely more reasonable than the same requirement if the will is written on a Tuesday, or if some of the witnesses are redheads.

SCHOTT, Judge,

dissenting.

I would prefer to reach the result my colleagues have in this case because to do otherwise is to declare the will invalid because of a highly technical defect in its confection. Nonetheless the jurisprudence is to the effect that unless the technical requirements for the confection of a nuncu-pative will under private signature as set forth in C.C. Art. 1581 are complied with the testament is invalid. Soileau v. Ortego, 189 La. 713, 180 So. 496 (1938).

Art. 1594 declares without equivocation that the phrase “residing in the place where the will is received” in Art. 1581 is to be understood as “their residence in the parish where that testament is made.” Whitney Jasmine, the witness to the will, whose residence is at issue here, had absolutely no residence whatsoever in St. James Parish at the time the will was confected.

To uphold the validity of this will we must reach a conclusion which is diametrically opposed to the jurisprudence as expressed in Purdy v. Klock, 179 La. 902, 155 So. 394 (1934). There the court was confronted with the problem of a witness who had a temporary residence in the Parish where the will was confected but a permanent residence elsewhere. The court noted the distinction between a domicile and a residence and held that all that was necessary for compliance with Arts. 1581 and 1594 was for the witness to have a residence in the Parish where the will was made even though such residence might only be temporary. Jasmine might very well have maintained in St. James Parish a domicile which as is pointed out in the Purdy case, is a legal relation between a person and a place, but he had no residence there.

I would reverse the judgment of the trial court.

      . C.C. art. 1581: A nuncupative testament, under private signature, must be written by the testator himself, or by any other person from his dictation, or even by one of the witnesses, in presence of five witnesses residing in the place where the will is received, or of seven witnesses residing out of that place.


author: SCHOTT, Judge.

text:
    Mrs. Gerald J. GEGENHEIMER, Individually, and as Tutrix and Administratrix of the Minors, Ronald Joseph, Gerald John, Jr. and Cindy Lou Gegenheimer v. CITY OF NEW ORLEANS, Department of Highways, State of Louisiana, New Orleans Public Service, Inc. and John Doe Insurance Company.
    No. 9608.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.
    Writ Refused March 5, 1979.

      Walter F. Gemeinhardt, a Professional Law Corp., John P. Keegan, New Orleans, for plaintiffs-appellees.
    Philip K. Jones, Norman L. Sisson, Marshall W. Wroten, Baton Rouge, Jesse S. Guillot, New Orleans, for defendant-appel-lee La. Dept, of Transp. and Development.
    Floyd F. Greene, New Orleans, for defendant-appellant New Orleans Public Service, Inc.
    George R. Simno, III, Deputy City Atty., Donald A. Hoffman, City Atty., New Orleans, for defendant-appellee City of New Orleans.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

The widow and children of Gerald J. Ge-genheimer brought this wrongful death action against New Orleans Public Service, Inc. (NOPSI), the Louisiana Department of Highways and the City of New Orleans. The case against NOPSI was tried to a jury which returned a verdict in favor of plaintiffs for $200,000. The trial judge dismissed the suit against the other defendants. Both NOPSI and plaintiffs have appealed.

The decisive issue in the case is the decedent’s contributory negligence. The record makes it crystal clear that the jury’s resolution of this issue in plaintiffs’ favor constituted error which was blatant and manifest compelling us in the exercise of our constitutional duty to reverse the judgment awarded plaintiffs.

The accident occurred at about 7 P.M. on January 18, 1971, at the intersection of Chef Menteur Highway and Paris Road in New Orleans. It was dark, the weather was clear and the roadways dry. At this intersection Chef Menteur Highway ran east and west and consisted of four lanes, each twelve feet wide with two lanes on each side of a thirty-two foot wide neutral ground. Paris Road, twenty feet eight inches wide, ran north-south and was perpendicular to the highway. There was a fifty-two foot break or cut in the neutral ground to accommodate the crossing of Paris Road. The intersection was controlled by a combination of five semaphore signals strung across the highway with one over each lane of traffic and one over the center of the intersection. The speed limit for highway traffic was fifty-five miles per hour.

Before the accident decedent was operating his pickup truck west on the highway in the left lane of traffic. Intending to make a left turn at Paris Road, he activated his left turn signals. Facing him on the neutral ground were two signs reading: “Left Turn On Green Permitted.” Since the light facing him was green he turned into the crossover and without stopping continued across the east bound lanes of the highway. As he crossed the second lane his truck was struck broadside by a NOPSI bus.

LSA-R.S. 32:122 provides as follows:

“The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard.”

Every witness who testified, including the bus driver, a passenger on the bus and a motorist who was in his automobile on Paris Road north of the highway waiting for the light to change, agreed that decedent simply left the neutral ground and entered the path of the bus without stopping. This was a clear violation of the quoted statute. Plaintiffs raised no question about decedent’s duty to yield and, indeed, produced as witnesses a police officer and two traffic engineers who discussed the duty of a left hand motorist to yield to vehicles approaching from the opposite direction.

Plaintiffs argue last clear chance but this theory cannot fit the facts of the case. Until decedent began to leave the neutral ground area the bus driver had a right to assume that decedent would not violate the law and enter directly into his path. The evidence is uncontradicted that decedent was traveling only ten to fifteen miles per hour as he began to turn and crossed the neutral ground. From that point when he left the neutral ground he traveled 20.5 feet to the point of impact and at fifteen miles per hour was traveling twenty-two feet per second. Thus, the bus driver had less than a second in which to anticipate that decedent would attempt to cross over in front of him.

All of the evidence establishes that the bus was traveling forty to forty-five miles per hour or about sixty-five feet per second. Plaintiffs produced two expert witnesses who testified that the minimum reaction and braking time for the bus would require 150 feet and 244 feet respectively. In either case, it was physically impossible for the bus driver to avoid the collision.

We are keenly aware of the restraints on appellate review enunciated in Canter v. Koehring Co., 283 So.2d 716 (La.1973). We have no hesitation about reversing this judgment because there is absolutely no evidence to support exoneration of decedent from contributory negligence as a proximate cause, if not the sole and only cause, of this accident or to conclude that the NOPSI bus driver had any chance to avoid the accident. This jury committed manifest error purely and simply.

As to the issues raised against the State and the City, it is unnecessary to address these in view of our conclusion as to decedent’s negligence. Parenthetically, we must observe that the evidence fell far short of establishing plaintiffs’ case against these defendants.

Accordingly, that portion of the judgment which is in favor of plaintiffs and against defendant New Orleans Public Service, Inc. is reversed and set aside and there is judgment in favor of defendant, dismissing plaintiffs’ suit at their cost.

That portion of the judgment dismissing plaintiffs’ suit against the City of New Orleans and the State Department of Highways is affirmed.

REVERSED IN PART, AFFIRMED IN PART, and RENDERED.

      . See Casimere v. Ryder Truck Rental, Inc., 324 So.2d 855 (La.App. 4th Cir. 1975).


author: SCHOTT, Judge. GULOTTA, Judge,

text:
    John THOMAS v. W & W CLARKLIFT, INC. and Reliance Insurance Company.
    No. 9605.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.
    Writ Granted March 5, 1979.

      Montgomery, Barnett, Brown & Read, Harold B. Carter, Jr., Thomas E. Loehn, New Orleans, for defendants-appellants.
    Coleman, Dutrey, Thomson, Meyer & Ju-risich, Jack W. Thomson, Jr., New Orleans, for third party defendants-appellees-cross appellants.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

This matter is before the court on appeal by W & W Clarklift, Inc. and its insurer, Reliance Insurance Company, from a judgment dismissing their third-party demand against John Leckert, Sr., John Leckert, Jr., Joseph Blackburn and Frank Burns, hereinafter referred to as Leckert. For an understanding of the issues the chronology of the case must be clearly set forth.

Plaintiff brought his suit against Clark-lift and Reliance for damages growing out of an accident which occurred on September 18, 1974 while he was an employee and on the premises of Dennis Sheen Transfer Company. In his petition he alleged that he was injured when the counterweight of a forklift machine, sold as a used forklift by Clarklift to Dennis Sheen on August 30, 1974, fell on him, and that the said forklift had been repaired and overhauled by Clark-lift. He alleged that bolts which secured the counterweight to the forklift were missing from the forklift, and he charged Clark-lift with negligence and breach of its warranty to Dennis Sheen.

Plaintiff originally filed his suit in Jefferson Parish on August 20,1975, and Clarklift answered that suit on October 20. No third-party demand was ever filed in those proceedings. On June 17, 1977, the present suit was filed in New Orleans and on July 26 Clarklift and Reliance filed their answer. On January 24, 1978, Clarklift and Reliance filed third-party demands against Leckert, alleging that they were officers and supervisory personnel of Dennis Sheen and were negligent in failing to discover the unsafe condition of the forklift, breaching their duty to inspect the job site and equipment used by Sheen’s employees. Clarklift and Reliance sought indemnity or contribution against Leckert.

Leckert filed exceptions of no right or cause of action, an exception of prescription of one year based on LSA-C.C. Art. 3536, an exception of prescription of 90 days, based on C.C.P. Art. 1067. In the judgment which is now on appeal, the trial court maintained the exception of no right of action with respect to the claim for indemnification but overruled the exception of no right of action for contribution. He overruled the exception of prescription of one year but maintained the exception of prescription of 90 days, and accordingly dismissed the third-party demand.

Leckert has answered Clarklift’s appeal, reurging its exceptions of no cause of action and of prescription of one year.

Clarklift and Reliance have moved to dismiss Leckert’s answer to the appeal, contending that the issues they raised in their answer were not final but interlocutory, and thereby not appealable under C.C.P. Art. 2083. They rely on established jurisprudence to the effect that an appeal does not lie from a judgment which overrules an exception, so that an answer to an appeal which is tantamount to an appeal from a judgment overruling exceptions is likewise not properly before the appellate court.

The judgment appealed from expressly maintained the exception of no right of action as to the claim for indemnification. This left to the court for disposition the claim for contribution. The judgment finally dismissed the third-party demand in its entirety. The trial judge included in the judgment what we consider to be his reason for dismissing the demand for contribution, to wit, the 90 day limitation prescribed by C.C.P. Art. 1067. In effect, we have concluded that his judgment of dismissal of the third-party demand was correct but he was in error in assigning C.C.P. Art. 1067 as his reason, but should have dismissed the suit because of the one year prescription of C.C. Art. 3536. By the same token we have concluded that the dismissal of the claim for indemnity was correct but the judge was in error for the reason he assigned as the maintenance of the exception of no right of action. He should have maintained the exception of no cause of action. We will first address the issue of contribution.

Art. 1067 as amended by Act 86 of 1974 provides as follows:

“When prescribed incidental or third party demand is not barred.
An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.”

Clarklift and Reliance contend that this article has no application to third-party demands but is limited to reconventional demands, but we are unable to agree with this argument considering the legislative history of the article.

The article was added to the Code of Civil Procedure by Act 472 of 1970. In its original form, the article read as follows:

“Art. 1067. When prescribed reconvention is not barred.
A reconvention is not barred by prescription if it was not barred at the time the main demand was filed; provided such reconvention is filed within ninety days of date of service of main demand.”

Thus, in its original form the article was limited in its application to reconventional demands, but when it was amended by Act 86 of 1974 the legislature made it clear that it applied not only to reconventional demands but also to any incidental demands, including third-party demands. The title to the act is as follows:

“To amend and reenact Article 1067 of the Louisiana Code of Civil Procedure relative to the filing of prescribed recon-ventional demands by providing time within which to file any incidental demands and third party demands after the filing of the main demand.”

This expressed purpose for the act was further clarified in the title of Art. 1067, which reads:

“When prescribed incidental or third party demand is not barred.”

The fact that this article remains in Section 2 of Chapter 6, which has to do with the reconventional demand is in no way persuasive. And it is explained by the fact that the article originally applied only to the reconventional demand but has now been expanded to include all incidental demands.

To consider the application of the article the first inquiry to be made is whether or not the claim has prescribed. Under its plain wording it applies only to an incidental demand which has otherwise prescribed. For this reason we have concluded that the trial judge was in error when he concluded that the claim had not prescribed and therefore overruled the exception of prescription of one year and then proceeded to apply Article 1067’s 90 day limitation. If the claim has not otherwise prescribed in the first place the article has no application whatsoever and if we were to agree with the trial judge that the claim did not prescribe we would reverse his judgment dismissing the third-party demand. But for the reasons to be discussed we have concluded that the third-party demand has prescribed and since the incidental demand was filed more than 90 days after the date of service of the main demand, the article does not save Clarklift and Reliance from having their third-party demand dismissed.

The liberative prescription of C.C. Art. 3536 ran in favor of Leckert one year after plaintiff’s accident on September 18, 1974, unless prescription was interrupted by the filing of the first suit in Jefferson Parish on August 20, 1975. In this suit only Clarklift and “ABC Insurance Corporation” were named defendants, but only Clarklift was served with the citation and petition. If the alleged liability of Clarklift and Leckert was solidary the filing of the suit against Clarklift interrupted prescription against Leckert. C.C. Arts. 2090, 2097 and 3552.

In brief, the argument that Clarklift and Leckert were solidary obligars was based on the premise that they were joint tort fea-sors who, under C.C. Art. 2324, are solidarily liable to plaintiff. We have concluded that this argument misses the mark because it was not Clarklift but one or more of its employees who might conceivably be a joint tort feasor with Leckert.

Clarklift’s alleged liability to plaintiff is the vicarious liability imposed on the master for the servant’s tort under C.C. Art. 2320. In Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373 (1948), the court held that the employer is not liable in solido with the employee for a tort committed by the employee. In Caldwell v. Montgomery Ward & Company, Inc., 271 So.2d 363 (La.App. 2nd Cir. 1972), the court dismissed a suit against an employer where a settlement was made against the employee with plaintiff specifically reserving his rights to proceed against the employer. The court held:

“Under our Civil Code, Article 2315, the liability of a servant for damages to another caused through his negligence is primary. Conversely, the master’s liability imposed by LSA-C.C. Art. 2320 in favor of third persons for the damages resulting from his servant’s negligence, while engaged in the course and scope of his employment, rests solely on the principle of respondeat superior and, in all cases where the master himself is not at fault, is derivative or secondary. According to the jurisprudence, where the master’s liability is purely secondary or vicarious, he is entitled to reimbursement from his servant, the one primarily responsible, in the event he is required to pay a third person damages resulting from the servant’s negligence. They are not considered to be joint tortfeasors. Costa v. Yochim, 104 La. 170, 28 So. 992 (1900); Spurlock v. Boyce-Harvey Machinery, La.App., 90 So.2d 417 (1st Cir.1956); Jobe v. Hodge, 253 La. 483, 218 So.2d 566 (1969); Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960).”

The action against Leckert sounds purely in tort. For the sake of discussion, let us concede that they were joint tort feasors with the employee(s) of Clarklift who failed to secure the counterweight properly. But since Clarklift is not solidarily liable with its employee who committed the tort it can hardly be said that it is solidarily liable with Leckert and the filing of the suit against Clarklift alone did not interrupt prescription against Leckert.

The parties devoted much attention in their arguments to the applicability of C.C. Art. 2103, which provides as follows:

“When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi contract, an offense, or a quasi offense, it should be divided between them. As between the solidary debtors, each is liable only for his virile portion of the obligation.
A defendant who is sued on an obligation which, if it exists, is solidary may seek to enforce contribution, if he is cast, against his solidary co-debtor by making him a third party defendant in the suit, as provided in Article 1111 through 1116 of the Code of Civil Procedure, whether or not the third party defendant was sued by the plaintiff initially, and whether the defendant seeking to enforce contribution if he is cast admits or denies liability on the obligation sued on by the plaintiff.”

Clarklift and Reliance argue that their claim has not prescribed because of the jurisprudence which has held that the third party demand permitted under the second paragraph of this article is optional with the filing of an independent suit for contribution after final judgment is obtained against it. See Morris v. Kospelich, 206 So.2d 155 (La.App. 4th Cir. 1968), affirmed, Supreme Court, 253 La. 413, 218 So.2d 316 (1969). But the right to contribution in any case is specifically limited in Art. 2103 to the situation where there is solidary liability. Since there is none between Leckert and Clarklift the article is inapplicable.

Having disposed of the claim for contribution, we return to the dismissal of the claim for indemnity which was brought by Clarklift and Reliance pursuant to C.C.P. Art. 1111, the first paragraph of which provides as follows:

“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.”

Leckert filed an exception of “no right or cause of action” to the claim. Although the trial judge specifically maintained the exception of no right of action and made no disposition of the exception of no cause of action we surmise that this may have been an inadvertence. In any event, we deem the exception of no cause of action to be properly before us (see C.C.P. Art. 927) and will reach the same end result as the trial judge did although, perhaps, for a different reason.

The pleadings do not raise any question and we cannot conceive of any with respect to contractual indemnity in favor of Clarklift by Leckert, so that the only conceivable theory of indemnity is that of tort indemnity first applied in Appalachian Corporation v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539 (1922) and discussed in Marquette Casualty Co. v. Brown, 235 La. 245, 103 So.2d 269 (1958) and Edward Levy Metals, Inc. v. New Orleans Pub. Belt R., 243 La. 860, 148 So.2d 580 (1963). The Appalachian doctrine permits indemnity by one who is only technically or constructively at fault against another whose alleged negligence was the primary cause of the injuries received by the plaintiff. In the instant case, Clarklift’s liability is technical in the sense that it is only vicarious but it depends wholly upon the liability of its employee who failed to install the counterweight properly. As between that employ-. ee and Leckert it can hardly be said that the Clarklift employee’s fault was only technical or constructive while that of Lec-kert was the primary cause of plaintiff’s injuries. Under the pleadings the opposite is the case. The primary fault was on the Clarklift employee who failed to put in the bolts and Leckert breached no duty owed toward Clarklift or its employee. We have thus concluded that Clarklift has stated no cause of action against Leckert for indemnification.

Since Clarklift’s and Reliance’s claim for contribution against Leckert has prescribed and since they failed to state a cause of action for indemnity, the judgment dismissing the third-party demand is affirmed.

AFFIRMED.

GULOTTA, Judge,

concurring.

I concur in this result.

      . For another example of confusion which can result from the placement of amendments in the Code of Civil Procedure, see Book VIII and particularly Art. 4833 B.


author: LEMMON, Judge.

text:
    Angelo D. MARSALONE v. COURTNEY CORPORATION.

    No. 10297.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 1979.

      Leo S. Roos, New Orleans, for plaintiff-appellant.
    Martzell & Montero, Janine Syll Dingle-man, New Orleans, for defendant-appellee.

        Editor’s Note: The opinion of the Court of Appeal of Louisiana in Bernard v. Bernard, published in the advance sheets at this citation (365 So.2d 918) was withdrawn from the bound volume by order of the court.

   ON MOTION TO DISMISS

Before LEMMON, BOUTALL and GARRISON, JJ.

LEMMON, Judge.

This matter is before the court on a motion to dismiss a suspensive appeal.

This action commenced with a petition for a writ of mandamus, seeking to have the Recorder of Mortgages cancel a Notice of Lis Pendens recorded by Angelo Marsal-one in C.O.B. 2313, folio 671 in connection with other litigation between the parties. Although the petition sought cancellation only insofar as the inscription affected the immovable property at 444 Broadway, the prayer demanded cancellation of the entire inscription.

On December 7, 1978 the trial court rendered the following judgment:

“IT IS ORDERED, ADJUDGED AND DECREED that the alternative writ of mandamus be made peremptory; and accordingly, Francis J. Demarest, Recorder of Mortgages for this Parish, is directed to cancel the inscription in C.O.B. 2313, Folio 671 of the public records of this parish of the Notice of Lis Pendens filed by Angelo Marsalone on June 29, 1978”.

Marsalone applied for a new trial, and after a hearing on the application the trial court on December 15, 1978 rendered the following judgment:

“IT IS ORDERED, ADJUDGED AND DECREED that the judgment formerly rendered on December 7,1978 be clarified to read as follows:
“ ‘IT IS ORDERED, ADJUDGED AND DECREED that the Writ of Mandamus be made peremptory; and accordingly, Francis J. Demarest, Recorder of Mortgages for this Parish, is directed to cancel the inscription in C.O.B. 2313, Folio 671 of the public records of this parish of that part of the Notice of Lis Pendens filed by Angelo Marsalone on June 29, 1978 which pertains to the property located at 444 Broadway [the rest of said Notice of Lis Pendens, i. e., that pertaining to 1428 Bourbon Street, to remain in full force and effect]. All cost? of this proceeding are to be paid by Angelo D. Marsalone.’
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant’s motion for a new hearing be and is hereby denied”.

On January 24, 1979 Marsalone obtained an order for a suspensive appeal and furnished the required security. Defendant thereafter moved to dismiss the suspensive appeal as untimely filed.

Defendant contends that the judgment of July 15 was merely a clarification of the earlier judgment which altered the phraseology of that judgment, but not the substance, and that the 30-day delay provided by C.C.P. art. 2123 for taking a suspensive appeal began to run on December 16, 1978, the day after the court’s refusal to grant the application for new trial.

The December 7 judgment ordered cancellation of the entire inscription in C.O.B. 2312, folio 671. At the December 15 hearing on the application for new trial, the trial court clearly intended to modify the earlier judgment by ordering cancellation only insofar as the inscription pertained to the property located at 444 Broadway. However, the court could not do so pursuant to C.C.P. art. 1951, because the modification imposed was clearly one of substance. The court could only modify the earlier judgment by granting a new trial, and although the court did not do so in form, it did so in substance, and the judgment must be so construed.

Thus, the judgment of December 15 in effect set aside the December 7 judgment and granted a new triál. The court then rendered a new judgment, from which either party could have applied for a new trial. Accordingly, the delay for taking a suspensive appeal did not begin to run until the delay for applying for a new trial elapsed on December 27,1978, and the petition for suspensive appeal was timely filed.

The motion to dismiss the suspensive appeal is denied.

MOTION DENIED.

      . Since the only question before this court is the timeliness of the suspensive appeal, we do not address the issue of whether the trial court, after implicitly granting a new trial, properly proceeded to render immediately a new and different judgment without assigning the matter for hearing on the new trial. See C.C.P. art. 1977; Pickering v. Hibernia National Bank, 306 So.2d 469 (La.App. 4th Cir. 1975).


text:
    Maria V. BENTON v. Augusto LEMON, d/b/a Lemon Beauty Salon.
    No. 9614.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    A. D. Barnes, Jr., and Michael D. Cucullu, New Orleans, for plaintiff-appellant.
    Meyer Sabludowsky, New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   GARRISON, Judge.

Plaintiff was a customer of defendant’s beauty salon for several years. In mid December of 1975 and on April 30, 1976 Mr. Lemon gave Mrs. Benton permanent waves. Plaintiff claims that the last permanent damaged her hair and that Lemon negligently applied the wrong chemicals and improperly applied the treatments.

The trial court specifically found there was no showing of negligence. The record supports this finding. We affirm.

Plaintiff’s expert, Mr. Angelo Pa-vone, testified that the products used by the defendant were proper and indeed of “better” quality. The record also shows that the plaintiff had been having her hair colored every 2-3 weeks for 14 years. Inasmuch as plaintiff’s expert testified that any chemical treatment damages the hair, the alleged condition of plaintiff’s hair cannot be attributed solely to the April 30, 1976 wave. Plaintiff herself testified that the hair “had been looking pretty bad” before the permanent. Furthermore, John Jay, who had worked on her hair occasionally over the years — was qualified as an expert and testified that he examined her hair after the treatment and found no change in its condition.

Plaintiff relied upon the doctrine of res ipsa loquitur.

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

Sheppard v. Travelers Ins. Co., 333 So.2d 342 (La.App. 3rd Cir. 1976) at 344. However, the invocation of this doctrine does not relieve the plaintiff of the burden of showing that she was damaged. La.C.C. Art. 2315. This plaintiff failed to do.

Similar cases involving hair damage can be distinguished on the facts:

Bethancourt v. Employers Liability Assurance Corp., 153 So.2d 921 (La.App. 4th Cir. 1963), found a cosmetologist negligent for failing to perform a test curl on bleached hair before applying a wave. In that case the plaintiff’s hair was not merely tinted as in the case at bar, rather her hair had been bleached and stripped, a much harsher process. In Mrs. Benton’s case defendant did employ a test curl. Plaintiff’s attorney makes much of the fact that the curl was not tested for the same length of time as Mrs. Benton’s hair. However, defendant testified he checked the condition of her hair itself. Furthermore, in the Be-thancourt case the plaintiff had a dermatologist examine her hair within a week of the treatment and he testified that her hair was completely dehydrated. Thus damage clearly was established in that case.

In Horton v. Seligman and Latz, Inc., 260 So.2d 731 (La.App. 4th Cir. 1972), w. d. 262 La. 191, 262 So.2d 788, plaintiff’s hair broke off over her entire scalp as a result of a negligently applied wave to her bleached hair.

In Katz v. Employers Group of Insurance Companies, 204 So.2d 695 (La.App. 4th Cir. 1967); Sheppard v. Travelers Ins. Co., supra, Mouton v. Godchaux’s Inc., 360 So.2d 600 (La.App. 4th Cir. 1978), the plaintiffs all suffered losses of hair. And in Bailey v. American Motorists Insurance Company, 189 So.2d 106 (La.App. 1st Cir. 1966) not only did the hair fall out, but plaintiff’s scalp was left raw and irritated. Thus in all of these cases, the damage was evident.

The trial court’s judgment in favor of defendant is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    RUDY BROWN BUILDERS, INC. v. William A. HOUGHTON and Air Flo Systems, Inc.
    No. 9624.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.

      Robert G. Creely, Gretna, for Rudy Brown Builders, Inc., appellant.
    Thomas J. Toranto, Jr., New Orleans, for William A. Houghton and Air Flo Systems, Inc., defendants-appellees.
    Before STOULIG, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment denying a contractor recovery under a building contract.

Rudy Brown Builders, Inc., sued William A. Houghton and Air Flo Systems, Inc. to recover the amount due under two building contracts. At the trial it was stipulated that one building contract was for Hough-ton individually, and he owed a certain balance due. On the other contract it was stipulated that the price was $46,000 and the sole question to be litigated was whether Houghton individually, or Air Flo Systems, Inc., was responsible for that amount. The trial judge decided in favor of Hough-ton and we affirm.

The basic issue on this appeal is a matter of credibility of the witnesses. The only evidence in support of plaintiff’s case is the testimony of Rudy Brown who testified that, although suit was entered upon a written contract, he could not say for certain there was a written contract in existence, because his entire file concerning this matter had disappeared. He testified that all of his transactions were with Houghton himself, and that the agreement to build a building was made with Houghton individually as owner of the ground and not with Air Flo Systems, Inc., of which Houghton was President. He believed that the building was to be leased by Houghton to some other party, perhaps the Coca-Cola Bottling Company or some other bottlers, but that the building was never occupied by anyone to his knowledge.

In opposition to this Houghton testified that he entered into the contract solely as President of Air Flo Systems, Inc., and that he had nothing to do with the construction of that building individually. He denies ever telling Rudy Brown that the building was to be built for his personal account, and says that the building was to be solely occupied and used by Air Flo Systems for its own purposes. In support of his testimony he produced a copy of a document on letterhead of Rudy Brown Builder, dated July 22,1975, addressed to Air Flo Systems, Inc. Attn. Mr. Houghton, stating the price to furnish a particular metal building and itemizing the main specifications. In further support he introduced a number of other documents, all tending to show that plaintiff must have been aware at that time that he was dealing with the corporation and not Houghton individually. We especially refer to the document upon which the first building was to be constructed, similarly upon the same letter-head dated July 7,1975 but addressed to William A. Hough-ton setting out the price and specifications for the first building.

Although the trial judge did not render any written reasons, it impresses us, and it must have impressed him that the written evidence does indeed show that the building in question was built for the account of Air Flo Systems, Inc. and not William A. Houghton, individually. With this evidence supporting Houghton’s testimony, there is ample basis for the trial judge’s conclusion that the suit against Houghton should be dismissed. We find no error.

The judgment is affirmed.

AFFIRMED.


text:
    Mr. and Mrs. Vincent J. MONTALBANO v. BERNER’S, INC.
    No. 9626.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Rehearing Denied Jan. 16, 1979.
    Mmahat, Gagliano, Duffy & Giordano, Nicholas J. Gagliano, Metairie, for plaintiff s-appellees.
    Satterlee, Mestayer & Freeman, A. D. Freeman, Charlotte A. Hayes, New Orleans, for defendant-appellant.
    Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

Defendant, Berner’s, Inc., has appealed a judgment ordering it to replace a 2V2-ton-capacity condenser in an air-conditioning system with one with a 3-ton capacity. Plaintiffs, Mr. and Mrs. Vincent J. Montal-bano, answered this appeal, requesting this court to award the attorney fees they expended to bring this suit on a contract.

On March 25, 1970, plaintiff entered into a written contract with Berner’s, Inc., to install air-conditioning units in two apartments they own at 1422-24 Carrollton Avenue in Metairie. Plaintiffs occupy the larger apartment and rent the smaller one. The contract specifies a 3V2-ton unit was to be installed in plaintiffs’ apartment while a 3-ton unit would be placed in the rental property.

Mr. Montalbano testified that A. J. Pitcher of Berner’s estimated the cooling requirements of the small and larger apartments at 2V2 and 3 tons respectively, but suggested that plaintiff increase the capacity by a half ton for each unit for maximum comfort. Both plaintiffs testified that these are the size units Berner’s agreed to install and the contract bears out this statement. They also testified that the rental apartment was never adequately cooled between 1970, the time of installation, and 1975. Although the record does not indicate there was an inordinate amount of service calls, it does bear out plaintiffs’ testimony that there were frequent complaints of insufficient cooling. In fact Ber-ner’s records reflect Mrs. Montalbano’s statement to a serviceman that the unit had never cooled properly in the four years it had been installed. In addition, William Foret, the tenant who occupied the rental side for three years, testified the cooling was never adequate when it was needed in the hot summer months.

It was not until July 1975 that plaintiffs learned that a 214-ton unit rather than the specified 3-ton unit had been installed in the smaller apartment. While servicing the unit, one of Berner’s representatives referred to the actual size.

Berner’s defense rested on its assertion that it contracted to install a 2V2-rather than a 3-ton unit. While Pitcher, the representative of defendant, did not deny Mon-talbano’s statement that he increased tonnage at Pitcher’s suggestion, he insisted the notation 3-ton unit on the contract was a mistake. Without belaboring the point it is obvious the trial court was unimpressed with Pitcher’s testimony. Further it appeared that Berner failed to produce Pitcher’s estimate as to the cooling needs, while those documents it did produce contained erasures of figures crucial to the case. Ber-ner did not explain why part of the file was kept and other parts discarded. In any event the trial court concluded plaintiffs contracted for a 3-ton unit and received one with a 2V2-ton capacity. The evidence fully supports a finding that Berner breached its agreement.

We next consider the measure of damages due. The trial court ordered specific performance and we conclude this is the only available remedy by which the plaintiffs can be made whole. In written reasons for judgment, the trial judge pointed out this agreement is a building contract (Long Leaf Lumber, Inc. v. Summer Grove Develop., Inc., 270 So.2d 588 (La.App. 2d Cir. 1972), and Mangin v. Jorgens, 24 So.2d 384 (La.App.Orl.1946); therefore, damages for nonperformance are fixed by C.C. art. 2769 as “ * * * the losses that may ensue from his non-compliance with his contract.” He further pointed out the damage here is the cost of replacing the smaller unit with a larger one, which the defendant can do more economically than can plaintiffs. He also noted that normally defendant would be allowed some credit for the use of the smaller unit; however, that credit is not susceptible of calculation.

We agree with the result and the reasoning behind it. Further, we think appellant correctly argues the same conclusion could validly be based on C.C. art. 1927 which permits the obligee to sue for specific performance. That article points out that ordinarily the party aggrieved is only entitled to damages, unless this remedy is inadequate. Then, if possible, specific performance should be ordered.

In this case it is impossible to place a monetary damage figure on the inconvenience to the landlord in receiving numerous complaints about an ineffective air-conditioning unit. Likewise it is impossible to calculate the value to the landlord or his tenant of a lukewarm air conditioner. It is questionable if an inefficient air-conditioning system has any value at all. In any event the contractor claiming an offset for use had the burden of pleading and proving the value of said use. But see Peoples Fur. & G. v. Carson Hicks/Friedrichs Ref., Inc., 326 So.2d 919 (La.App. 3d Cir. 1976). Therefore we affirm the judgment ordering specific performance.

Appellees contend they are entitled to attorney fees under .C-C. art. 2545. Because that article is concerned with contracts of sale where the seller knowingly delivers a defective object, we will not base a fee award on it in a claim on a building contract. In this connection we note that we are not satisfied that the nonperformance by Berner’s was a bad faith breach. The possibility of error or inadvertence has not been negated. It is as reasonable to infer that defendant somehow installed the wrong size unit inadvertently as well as that it deliberately substituted an inadequate system to inflate its profit.

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

AFFIRMED.

BEER, J., concurs with written reasons.

BEER, Judge,

concurring.

I feel obliged to concur in the result only because of the fact that no evidence was adduced to substantiate Berner’s valid claim for some offset as a result of Montal-bano’s use of the 2xh ton unit for a number of years.