text:
    Laster M. LEACHMAN et al., Plaintiffs-Appellants, v. EL DORADO POULTRY CO. et al., Defendants-Appellees.
    No. 13157.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.

      Baker, Culpepper & Brunson by James R. Hatch, Jonesboro, for plaintiffs-appellants.
    Gold, Hall, Hammill & Little by Henry B. Bruser, III, Alexandria, for defendants-ap-pellees.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Plaintiff has appealed the judgment rejecting his demands for damages for breach of contract. The question is whether the contract is voidable because of an error of fact in the principal cause.

Laster M. Leachman named El Dorado Poultry Company, The Pillsbury Company, and Imperial Foods, Ltd. as defendants in this action. El Dorado Poultry is an affiliate of the J-M Poultry Packing Company which is a corporate division of Pillsbury.

The facts of this litigation and the contentions of the parties are concisely stated by the trial judge in his comprehensive reasons for judgment:

On June 11, 1970, plaintiff and J-M Poultry executed an instrument designated as a Lease Contract and Agreement under the terms of which plaintiff leased to J-M Poultry a total of six broiler houses and the equipment contained therein . . . . The lessee obligated itself to place broilers in the houses as well as provide feed and medication. . The duration of the lease was seven years with an option on the part of the lessee to extend the contract for an additional four years. .
Plaintiff’s actual dealings under this contract were with Ruston Broiler Company, presumably either a division of J-M Poultry or a sister corporate division of The Pillsbury Company.
Following complaints from plaintiff and other growers that they were not realizing adequate profits from long-term growing contracts such as that described above, Ruston Broiler Company initiated a policy of entering into individual “batch-to-batch” contracts with growers in plaintiff’s area. These agreements proved to be more financially advantageous to the growers but obligated the supplier to furnish only one batch of chickens and terminated with the delivery of that particular batch which normally took about eight weeks to grow. Each agreement constituted a separate contractual obligation. Plaintiff executed this kind of contract with Ruston Broiler Company on August 16 and November 8, 1971, and on January 31 and April 24, 1972. Then, on May 10, 1972, plaintiff signed and remitted to Ruston Broiler Company the following document:
“Ruston, Louisiana 71270 I, LASTER LEACHMAN, do hereby release Ruston Broiler Company and J. M. Poultry Packing Company of all obligations and liabilities in the Contract and Agreement made and executed on the 11th day of June, 1970, which covered a period of 6 years from date executed, which I terminated on 5-10-72.
* * * * * *

Plaintiff continued doing business with Ruston Broiler Company on a “batch-to-bateh” basis until December, 1972, when J-M Poultry decided to discontinue broiler operations in the Ruston area. It was at this time that the confusion arose which led to this litigation. Apparently the release executed by plaintiff was retained in the files of Ruston Broiler Company in its Ruston office instead of being sent to J-M Poultry’s district office in Alexandria, Louisiana. Therefore, when J-M Poultry elected to withdraw from plaintiff’s area it forwarded to the office of El Dorado in El Dorado, Arkansas, the original long-term broiler growing contract dated June 11, 1970, under the impression that its obligations thereunder to plaintiff were still viable.

In January of 1973 representatives of El Dorado visited plaintiff’s farm to inform him that, although he was outside that company’s geographic area and that they would prefer not take him on as a grower, they felt obligated to do so under the terms of his original contract with J-M Poultry. Plaintiff expressed a desire to be placed on a “batch-to-batch” basis with El Dorado’s other growers because of this arrangement’s attractive financial features, but his request was denied. Given time to consider whether he wished to be serviced under the long-term contract, plaintiff telephoned his acquiescence to El Dorado a few days later. Pursuant thereto El Dorado began placing broilers in plaintiff’s houses. Plaintiff grew several batches of chickens during 1973 for which he received remuneration from El Dorado in accordance with the June 11, 1970 contract. However, plaintiff continued to express to El Dora-do his dissatisfaction with the financial features of that agreement.

* >}: * * * *

In October, 1973, plaintiff complained to the United States Department of Agriculture that he was growing broilers for El Dorado but did not have a signed contract. Upon receiving an inquiry from the government agency, the manager of El Dorado checked the records in the Ruston office of Ruston Broiler Company and discovered the release which had been executed on May - 10, 1972. Therefore, El Dorado wrote Leachman a letter dated December 13, 1973, as follows:

* sit * * * *
This is to confirm the conversation Lonnie Couch and I had with you yesterday, where we agreed to put in one more batch of broilers under the terms of the contract presented. You are to let us know in the next few days as to whether you will accept this batch or not.
Our company has made the decision to cut back to our original operating area due to the shortage of diesel fuel. Our allotment of fuel has already been cut back, but we feel we can feed your houses one more cycle in order to give you ample notice that we are cutting back.
sj< * sfc sjs ^ *

Plaintiff rejected El Dorado’s offer to supply him with one last batch of broilers and, consequently, did not raise chickens for any of the defendants or their subsidiaries after December, 1973. He began negotiating with ConAgra to grow broilers for that company and proceeded to spend some $24,000.00 to modify his broiler houses in order to meet the requirements of ConAgra. Plaintiff received his first batch of broilers from that supplier on April 12, 1974, and has subsequently been involved as a grower for ConAgra, apparently on more attractive financial terms than he enjoyed with El Dorado.

It is plaintiff’s position that the offer by El Dorado in January, 1973, to service him under the terms of the June 11,1970, contract with J-M Poultry constituted the formation of a new contract containing the identical provisions of the original long-term growing agreement. Therefore, El Dorado’s letter of December 13, 1973, breached that contract causing damages to plaintiff which consisted primarily of his expenses incurred in insulating his broiler houses to comply with Con-Agra’s specifications.
On the other hand defendants argue that the agreement whereby El Dorado undertook to service the 1970 contract was entered into by that defendant under a mistake of fact, namely ignorance of the existence of the release, which was the principal cause or motive for the 1973 undertaking.

A valid contract must have the consent of the parties legally given. La.Civil Code Art. 1779. There is no consent where it has been produced by error. Art. 1819. An error of fact “. . . proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.” Art. 1821. To invalidate a contract, the error must be in the principal cause for making the agreement and the opposing party must have knowledge thereof. Art. 1823 and 1826.

“Engagements made through error, . are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, . . . .” Art. 1881.

The trial judge found that the sole reason El Dorado agreed to continue servicing plaintiff under the 1970 contract was its mistaken belief that this contract was still in effect since El Dorado was unaware of plaintiff’s having executed the release in 1972. The court further found the principal cause for El Dorado’s making the agreement with plaintiff was based on this error of fact, and that El Dorado had taken proper steps to void the agreement. This finding is in accord with the evidence, the pertinent codal articles, and the jurisprudence. See Marcello v. Bussiere, 284 So.2d 892 (La.1973); McCarty v. Anderson, 58 So.2d 255 (La.App. 1st Cir. 1952), and Cheramie v. Stiles, 215 La. 682, 41 So.2d 502 (La.1949).

We do not find any merit to plaintiff’s argument that El Dorado had constructive knowledge of the 1972 release signed by plaintiff which was in the files of the Ruston Broiler Company. Although the evidence is scant on the legal relationship of these firms, they appear to have been separate corporate entities and did not have common management. Under these circumstances, El Dorado did not have constructive knowledge of the release.

Plaintiff alternatively contends he is entitled to be compensated under the doctrine of unjust enrichment or quantum me-ruit. To recover under these equitable doctrines, it is incumbent on plaintiff to show enrichment without justification of the adverse party which has caused him impoverishment, and that he has no other remedy at law. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

Plaintiff has failed to establish either the enrichment of defendants or his own impoverishment. The evidence shows it was unprofitable for El Dorado to service plaintiff’s brooders because he was located beyond El Dorado’s normal area of activity.

The expenses plaintiff claims in insulating some of his brooders to comply with ConAgra’s requirements are not losses, but capital improvements on his property.

The judgment is affirmed. Costs are assessed to the appellant.


source: Caselaw Access Project

author: BOLIN, Judge.

license: Public Domain

text:
    James E. PRICE, Plaintiff-Appellant v. WHEELING PIPELINE, INC., et al., Defendants-Appellees.
    No. 13149.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    McKneely & McKenzie by Roland V. McKneely, Jr., Bossier City, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendants-appellees.
    Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff sues for personal injuries he received when his car was struck by a truck. Plaintiff, after an earlier stop, neglected to disengage the emergency flashers on his Chevrolet and they remained activated as he traveled along the inside lane of a four-lane divided highway. Following plaintiff and traveling in the same direction were, respectively, a car driven by Sally Cunningham and a large gasoline truck owned by Wheeling Pipeline, Inc. Intending to make a left turn, plaintiff engaged his car’s left turn indicator but it did not work because the emergency blinkers were already engaged. Confronted with the suddenly decelerating Chevrolet, Mrs. Cunningham and the driver of the gasoline truck undertook evasive action. Mrs. Cunningham was successful but the truck swerved into the median and struck the Chevrolet during its left turn maneuver.

Plaintiff sued Wheeling, Sally Cunningham, and their insurers but the demands against Wheeling were settled. Plaintiff contends Mrs. Cunningham suddenly changed lanes from the outside to the inside lane in front of the Wheeling truck, causing the truck driver to apply his brakes, turn left, and strike plaintiff’s Chevrolet as it entered the crossover. The trial court rejected plaintiff’s demands. He appeals and we affirm.

Assuming Mrs. Cunningham was negligent, the decisive issue is whether plaintiff was contributorily negligent.

Mrs. Cunningham was proceeding east in the inside lane when she noticed plaintiff’s car overtaking her from the rear with the emergency lights flashing. Thinking there was an emergency, she yielded the left lane and allowed plaintiff’s car to proceed. After she had driven in the right lane for a short distance she came upon a slow-moving truck in this lane. She also noticed from her rear view mirror that the large Wheeling gasoline truck was in the right lane and rapidly closing in on her vehicle. She became alarmed and suddenly and without any signal drove her car into the left lane. She testified the truck was still in the right lane as she changed lanes. After she got into the left lane she noticed the brake lights of plaintiff’s Chevrolet. She brought her car almost to a stop and avoided striking plaintiff’s car by slowly driving to the right of the Chevrolet as it slowed and made its left turn into the crossover.

The Wheeling driver testified he was already in the left lane and in the process of passing the Cunningham vehicle when its driver suddenly and without warning changed lanes; that in order to avoid striking the Cunningham car he applied his brakes and pulled to the left; that he struck plaintiff’s Chevrolet after it had completed its left turn and was in the crossover. He testified he saw the brake lights of the Chevrolet but that he undertook his evasive actions solely to avoid striking the Cunningham vehicle.

In a written opinion the trial judge found Mrs. Cunningham and the truck driver had apparently changed lanes at the same instant. The testimony of the two drivers being irreconcilable, we accept this conclusion. Based upon this finding, we do not accept the truck driver’s version that it was solely the presence of the Cunningham car immediately in front of his truck which precipitated his evasive action. To the contrary we find the truck driver’s actions were caused by his seeing the brake lights of plaintiff’s Chevrolet and his realization that a collision with either the Chevrolet or the Cunningham car was imminent.

The negligence of plaintiff in operating his vehicle on a heavily traveled highway with the emergency blinkers on, and in making a left turn without observing following traffic and timely giving a left turn signal was, at least, a contributing cause of the accident.

The judgment is affirmed at appellant’s cost.


author: BEER, Judge.

text:
    Clyde P. MARTIN, Jr. v. SEWERAGE AND WATER BOARD et al. Clyde P. MARTIN, Jr. v. SEWERAGE AND WATER BOARD.
    Nos. 7487 and 8323.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearings Denied March 15, 1977.

      Ronald F. Plaisance, New Orleans, for plaintiff-appellant.
    John A. Gordon, Vincent T. LoCoco, Richard M. Olsen, Many, LoCoco & Dwyer, Ralph D. Dwyer, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

These consolidated cases come to us — by different routes — from the Civil District Court for the Parish of Orleans and from the Civil Service Commission of the City of New Orleans. We conclude that the actions of both were correct and, accordingly, affirm.

In view of the basis for our conclusion, we limit the discussion in this opinion to the issue upon which our decision is founded.

At all times pertinent, appellant, Clyde P. Martin, Jr., was an employee of the Sewerage & Water Board of New Orleans. By 1974, through diligent and conscientious effort, he had progressed to the position of Mechanical Engineer III and was in charge of drainage and sewerage pumping operations for the Board.

In the performance of his duties up to and including the year 1974, Martin had clearly merited the special recognition which had brought about successive promotions and led to his assignment to a position of importance and responsibility in the conduct of the affairs of the Board. It was in this climate that he was recommended for and appointed to the position designated as Mechanical Engineer IV, effective in December of 1974.

This appointment had directly resulted from Martin’s previous performance as well as from the results of competitive examination and subsequent selection from the list of successful examinees, a Promotional Register Certificate having been issued to him to evidence this achievement.

The rules of the Civil Service Commission provide for a “test period” which commences upon the appointment or certification of an individual to a position in the classified service. We are of the view that the test period necessary for his ultimate final designation as Mechanical Engineer IV began with his initial appointment or certification as Mechanical Engineer IV in December of 1974.

The Commission’s rules require that an individual thus appointed or certified is obliged, for a period of six months, to serve in a probationary status while the test period runs its course. In other words, the promotion, though actually in effect, is, nevertheless, tentative and, thus, subject to being recalled. The reason is obvious. The promoted individual must, in effect, prove himself in his new and higher paid capacity during this testing period.

The rules also provide that the so-called test period can be extended. This is obviously done to give all interested and involved parties the opportunity for further consideration when there is some doubt about an individual’s ability to perform in the new capacity which may (though not necessarily) involve greater responsibilities (with commensurate increase in pay).

Although only approximately three months had passed from the time of Martin’s tentative designation as Mechanical Engineer IV, he was notified (and acknowledges receipt of such notification) that his probationary working test period was, then and there, extended for an additional six months. Specifically, this notification took place on March 12, 1975.

However, the issue of that notification is, essentially, mooted by the fact that within the original six-month period from December of 1974, Martin was duly notified of his reassignment as Mechanical Engineer III. This took place in April of 1975.

In our view, the internal decision to return Martin to his pre-December, 1974 position as Mechanical Engineer III is not, in the context of these appeals, properly before us for review since the rules of the Civil Service Commission set out a basis for the taking of this action which is not reviewable either by the Civil Service Commission or the Civil District Court or this court.

The action taken by the Board was within the time limit provided for by the rules and did nothing more and nothing less than return Martin to his previous position as Mechanical Engineer III within the chronological perimeters which the rules provide for.

Stated another way, Martin was not demoted from Mechanical Engineer IV to Mechanical Engineer III. He was only conditionally promoted from Mechanical Engineer III to Mechanical Engineer IV. Within the probationary period of his conditional promotion, his superiors deemed that his performance did not demonstrate a basis for making the promotion permanent, and, so, during this probationary period, he was, accordingly, returned to his status as Mechanical Engineer III.

While men of good will might differ as to the substantive basis for reaching such a decision, such consideration is outside the ambit of jurisdiction of the Civil Service Commission, the Civil District Court and this court and is solely an internal matter within the Sewerage & Water Board when reached during the probationary period. The New Orleans Home Rule Charter grants authority to the Civil Service Commission to adopt rules governing promotion, and those rules, duly promulgated, include the specific right of the appointing authority to unilaterally revoke such promotion during the probationary period.

Since the action by the Board was taken during the probationary time period when its decision regarding same is, then and there, a final decision, there was never any jurisdiction for review of the Board’s action in either the Civil Service Commission, the Civil District Court or this court. The fact, conceded by all, that Martin was, at all times pertinent, a permanent employee of the Board is of no consequence. His designation as a permanent employee cannot be said to entitle him to permanent designation as Mechanical Engineer IV in derogation of the requirement that he serve in the promoted slot for a probationary period before the promotion becomes permanent. The same must be said for the fact that his duties with the Board were unchanged subsequent to his provisional promotion since the promotion was obviously made in the ordinary course of the Board’s affairs and was, thereafter, recalled in the same ordinary course of the Board’s affairs. Accordingly, the appeals are dismissed at appellant’s cost.

AFFIRMED.

      . Parenthetically, we do feel obliged to observe that the internal action taken in this matter appears to have been with supporting reasons or, at the very least, neither arbitrary nor capricious.


author: SCHOTT, Judge. REDMANN, Judge, SAMUEL, Judge, BOUTALL, Judge,

text:
    Felton LOWE and Gilda Lowe v. GENTILLY DODGE, INC. and ABC Insurance Company.
    No. 7637.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Murphy & Simon, E. Kelleher Simon, New Orleans, for defendants-appellees.
    Kronlage, Dittmann & Caswell, Joseph Maselli, Jr., New Orleans, for plaintiffs-appellants.
    Before SAMUEL, REDMANN, BOU-TALL, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

Plaintiffs filed this suit against Gentilly Dodge, Inc. (Gentilly) and its public liability insurer, Allstate Insurance Company, for damages sustained by them when their automobile was thrown against the railing of an elevated portion of Interstate Highway 10, in New Orleans while the car was being towed by a truck driven by Tommy Austin, an employee of Gentilly. From a judgment in favor of the defendants dismissing plaintiffs’ suit, plaintiffs have appealed.

On June 29, 1973, Felton Lowe purchased a used automobile from Gentilly. The next day, he and his sister, the other plaintiff herein, were driving to the vendor’s establishment in the vehicle to obtain the bill of sale and related documents. The automobile stalled on Interstate Highway 10, and Felton telephoned Gentilly for assistance. Some time later one of Gentilly’s employees, Tommy Austin, came to their assistance and attempted to tow the automobile back to defendant’s establishment with the plaintiffs riding in the towed vehicle. Austin' lost control of the truck he was operating, and it struck the railing of the highway causing injury to both plaintiffs and damage to plaintiff’s automobile.

The only question to be resolved is if defendant’s employee, Austin, was acting in the course and scope of his employment when he towed the automobile from the highway and caused the accident in suit.

When Lowe purchased the automobile the sale was handled by Steve B. Powell, Gentilly’s salesman. Powell’s superior was Ross Liles, the used car manager. At that time Tommy Austin was also employed by Gentilly Dodge as a used car porter. Austin’s duties were to place keys in the used vehicles when business opened, start them each morning, and clean them prior to delivery upon sale.

When Lowe telephoned for assistance on the day after the sale, he spoke to Powell. Powell received the call in the office of the used car manager in the presence of Austin. Powell told Lowe he would send a wrecker to assist him if Liles authorized him to do so. According to Powell, Austin offered to help Lowe but was told by Powell not to do so because a wrecker would be dispatched. Powell then left to locate Liles, and as he returned to the office he saw Austin leaving the used car lot in a pickup truck placed on the lot for sale.

After Austin arrived at the scene of plaintiffs’ breakdown, he called Liles from a nearby service station.

In Liles’ own words he said to Austin: “And I asked Tommy what seemed to be the matter and he said he didn’t really know. I asked him if he would go back over and check the car and see if it had gas in it and try to start it. If it had gas in it, if he couldn’t get it started, come back and call me and we would send a wrecker out and pick it up.”

Contrary to Liles’ instructions, Lowe rented a tow chain from the service station and, after the chain had been connected to the truck and the automobile, Austin Commenced towing the car down from the elevated interstate highway.

LSA-C.C. Art. 2320 provides that:
“Masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed.”

While the evidence shows that Austin had no authority to take the truck initially what Liles said to Austin when he telephoned constituted a ratification of Austin’s use of the truck. Far from telling Austin to return with the truck immediately, Liles told Austin to “check the car” and to “try to start it.”

Considering the circumstances that Lowe’s car had broken down on an interstate highway only the day after it was sold by Gentilly at a time when he was returning to Gentilly, in effect to complete the sale, it becomes clear that Liles was anxious for Austin to keep the customer happy. Not only was his conversation devoid of an intention to terminate Austin’s authority but it also went beyond authorizing Austin simply to check to see if gas was in the car.

The following from Dunn v. Campo, 179 So. 102 (La.App.Orl.1938) is pertinent:

“The foregoing and other authorities sustain the proposition that an employee who violates an order or rule of his employer with respect to the manner of discharging some function of his employment in furtherance of the master’s business would not, on that account, be regarded as out of character as employee so as to relieve his master of responsibility for his tortuous conduct.”

Austin was discharging some function of his employment in furtherance of Gentilly Dodge’s business, to wit, to pacify a customer and to promote Gentilly’s good will with that customer. He had not been told to return immediately but had been encouraged to start Lowe’s automobile. Since he was out on the interstate highway with a truck his decision to move the customer’s vehicle was not incompatible with his status as Gentilly’s employee.

Also, the following from St. Paul Fire & Marine Insurance Co. v. Roberts, 331 So.2d 529 (La.App. 3rd Cir. 1976) is pertinent:

“We hold that an employee on a special errand, pursuant to specific request or direction of his master, is within the scope and during the course of his employment from the time of embarking on the errand until his return or deviation from the mission for personal purposes. In this instance we find no deviation because Robert’s intent was to return to his home, although the return route may have been slightly longer than that by which the delivery was made. We conclude that Roberts was acting within the scope and during the course of his employment at the time of the accident.”

Austin’s conduct constituted a minor or slight deviation from his instructions at worst. This is true when considered from Liles’ point of view alone. But when considered from plaintiff’s point of view it is even more so. Here was Lowe stranded on 1-10 and being assisted by Gentilly’s employee with Gentilly’s specific authorization. Even if Lowe had been privy to the conversation between Liles and Austin, which he was not, he could assume that the authorization to Austin to do what he could to get the automobile started included the removal of the automobile from its position of being stranded on 1-10.

Our decision has been reached based upon Liles’ testimony as to the extent of Austin’s authority under the circumstances. Austin himself could not be located and, therefore, did not testify. Plaintiff’s testimony shed no light on the question and for that reason the trial judge’s statement in his reasons for judgment that he was “not impressed with the testimony of plaintiffs” does not dispose of the problem as we see it.

Likewise, the evidence offered by Gentilly that Austin and Lowe were acquainted before the incident and that Austin had sought a part of the commission on the sale of the car because he had produced the cüstomer is unrelated to the principal issue in the case, to wit, the applicability of C.C. Art. 2320.

Having concluded that defendants are liable to plaintiffs for their damages, it becomes necessary to assess quantum. Both plaintiffs saw Dr. Carl H. Rabin on July 6, 1973, and copies of his reports were placed in the record by stipulation.

In his initial examination of Felton Lowe, Dr. Rabin found spasm and tenderness of the cervical and dorsal spines. He diagnosed moderately severe cervical and dorsal strain. He prescribed medication, ultrasonic physiotherapy and a soft cervical collar. The collar was worn for one month and the therapy was administered until September 17, at which time Lowe still complained of pain and was instructed to continue with oral medication and a heating pad. Dr. Rabin expected Lowe’s symptoms to be resolved in the next two or three weeks.

In his initial examination of Gilda Lowe, Dr. Rabin found spasm and tenderness of the lumbar spine and diagnosed a moderately severe lumbosacral strain. He prescribed medication and physiotherapy. The latter was administered until September 7, at which time she still complained of pain and was told to continue with oral medication and a heating pad. X-rays had revealed a spondylolysis defect of L5 and Dr. Rabin felt that this would prolong her convalescence. Nevertheless, he expected her symptoms to be resolved in two to four weeks.

Felton Lowe is entitled to recover $494 for Dr. Rabin’s bill, $55 for X-rays, $877.63 for lost wages and $110.42 for automobile expenses. Gilda Lowe is entitled to recover $410 for Dr. Rabin’s bill and $40 for X-rays. Each plaintiff will be awarded the sum of $500.00 for general damages.

Accordingly, the judgment appealed from is reversed and there is judgment in favor of plaintiff Felton Lowe and against defendants, Gentilly Dodge, Inc. and Allstate Insurance Company, jointly and in solido in the sum of $2037.05 with legal interest from date of judicial demand until paid, and for all costs of these proceedings, and

There is judgment in favor of plaintiff, Gilda Lowe and against defendants, Gentilly Dodge, Inc. and Allstate Insurance Company, jointly and in solido in the sum of $950.00 with legal interest from date of judicial demand until paid, and for all costs of these proceedings.

REVERSED AND RENDERED.

REDMANN, J., concurs with written reasons.

SAMUEL and BOUTALL, JJ., dissent with reasons given by SAMUEL, J.

REDMANN, Judge,

concurring.

The trial judge’s reasons for judgment were that he “was not impressed with the testimony of the plaintiffs.” He disbelieved them.

I agree with the plurality’s analysis of the law which makes defendants liable even if plaintiffs are totally disbelieved. I believe the plurality errs in not according to the trial judge’s disbelief of plaintiffs the significance it has in fixing quantum. The significance is that plaintiffs’ subjective complaints of pain must be rejected except insofar as supported by other credible evidence. The only objective evidence of any injury was spasm on the first visit to a doctor; none is reported found thereafter. The damage to the car was slight ($110). I conclude that the injuries were minimal.

SAMUEL, Judge,

dissenting.

Plaintiffs’ right to recover in this matter is controlled by Civil Code Article 2320. The majority opinion quotes that article only in part. The complete article reads:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed. Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.” LSA-C.C Art. 2320 (emphasis ours).

As provided by that article, the questions presented are (1) at the time the accident occurred, whether Austin was exercising a function in which he was employed, and (2) if so, whether Gentilly Dodge, his employer, could have prevented the act which caused the damage and failed to do so. I find both questions must be answered in the negative.

The evidence is uncontradicted as to the following facts: Gentilly Dodge’s policy was not to tow vehicles itself but engage a wrecker or commercial tow truck when needed for that purpose; Austin, who had to be aware of this policy, had been refused permission to go to Lowe’s assistance; despite that refusal and in direct disobedience thereof, he took the pickup truck out of defendant’s premises and did go to help Lowe; the pickup truck used by Austin was not a Gentilly Dodge truck, was not equipped for towing, did not display Gen-tilly Dodge’s emblem or logo, and was in fact simply a used truck on its lot for resale. In addition, the record is devoid of any evidence showing, or even tending to show, that Austin’s superiors authorized him to tow the automobile; the only evidence is to the contrary. The instructions given to Austin by Liles, the used car manager, correctly quoted in the majority opinion, definitely limited Austin’s authority to determining whether the automobile had gas in it and to trying to get it started (Austin was on the scene at that time). Austin clearly was told if he could not get the automobile started, a wrecker would be sent to pick up that vehicle. This telephone conversation between Liles and Austin not only did not give the latter permission to tow the automobile, it limited his authority to trying to get the car started and, by telling Austin a wrecker would be sent to tow the car in the event of failure to start, effectively prohibited Austin from attempting to tow.

Referring to the first question presented, it appears quite clear to me that Austin was not exercising a function in which he was employed. He was employed solely as a used car porter and his duties were limited to placing keys in the used vehicles when business opened, starting them each morning, and cleaning them prior to delivery •following sale. As has been pointed out, Austin was not authorized to tow the Lowe automobile; Liles’ instructions effectively were directly contrary to such authorization.

Even assuming arguendo that Austin was exercising a function in which he was employed, I am of the firm opinion that Gen-tilly could not have prevented Austin from towing the automobile. In total disregard of a superior’s (Powell’s) orders not to do so, Austin had taken the truck out of Gentilly’s used car area and gone to Lowe’s assistance. After arriving at the scene, he called another superior (Liles) and, as has been pointed out, was quite effectively told not to tow the automobile. In view of these and all the other circumstances, I cannot see what Gentilly could have done to prevent the towing. The majority suggests Liles could have ordered Austin “to return immediately”, but how this would have prevented Austin from towing the automobile escapes me. Austin had been ordered not to go to Lowe’s assistance; he had been effectively ordered not to tow the vehicle; and the two combined certainly were more emphatic, and more likely to be obeyed, than an order “to return immediately.”

The majority’s quotation from Dunn v. Campo, 179 So. 102,104, is not authority for the majority holding; it is only dictum which the Dunn court did not follow. With the exception of one old Louisiana case (Winston v. Foster, 5 Rob. 113, handed down in 1843 and, interestingly, decided in favor of the defendants), the authorities referred to in the quotation are cases from other states and a general summation in Corpus Juris. In Dunn, a suit for personal injuries, the employee was hired by the defendant, a retail grocer, to make deliveries either on foot or with the use of a wheel barrow furnished by the employer. On the day of the accident, the employee borrowed an automobile from a third person and negligently injured the plaintiff while making deliveries in the automobile. Finding the employer did not know or tacitly approve of the employee’s use of the automobile to make the deliveries, the Dunn court held in favor of the employer and dismissed the suit. Thus, insofar as it may be applicable in this case, Dunn supports the judgment appealed from. In this case, Gentilly not only did not know Austin was going to tow the automobile, Gentilly did, in my opinion, all it reasonably could to prevent that towing.

The other case relied on and quoted from by the majority is St. Paul Fire & Marine Insurance Co. v. Roberts, La.App., 331 So.2d 529. That opinion states there is no hard and fast rule for determining whether or not an employee is acting within the scope and during the course of his employment (each case must be decided in the light of its own peculiar facts and circumstances) and lists numerous factors which should be considered in making that determination. The only such factor considered by the majority in this case is their conclusion that “Austin was discharging some function of his employment in furtherance of Gentilly Dodge’s business, to wit, to pacify a customer and to promote Gentilly’s good will with that customer.” How could Austin be discharging a function of defendant’s business by towing the Lowe vehicle in direct violation of the two orders not to go to Lowe’s aid and not to attempt the towing?

There is another reason why I cannot agree Austin was discharging a function of the defendant’s business. Evidence in the record indicates Austin and Lowe were acquaintances and perhaps friends and Austin sought a commission from Gentilly on the ground he had produced Lowe as a customer. In addition, Lowe testified he had told Austin “. . . if he would have it [the car purchased by Lowe] shined up nice for me I would tip him and to get some of the feet rests that goes under the floor I would tip him and he said that he could do that.” Under these circumstances, especially in view of the fact that Austin volunteered to go to Lowe’s assistance and did so despite being ordered not to, it appears to me that Austin was acting in his own behalf rather than discharging a function of his employment.

As I would affirm the judgment of the trial court, I respectfully dissent.

BOUTALL, Judge,

dissenting.

BOUTALL, J. dissents for the reasons expressed in the dissent by SAMUEL, J.

      . Allstate was made a defendant by supplemental and amended petition.

      . Judges Schott and Morial are of the opinion that Felton Lowe is entitled to $2,000 and Gilda Lowe $1,500, for general damages. However, LSA-Const. 1974, Art. 5, § 8(B), provides that a majority of the judges sitting in a case before the Court of Appeal must concur to render judgment.

      . It should be noted that while our jurisprudence has equated “in the exercise of the functions in which they are employed” as used in Article 2320 with “course and scope of employment”, a stricter interpretation and construction of “course and scope of employment” is used in cases arising under Article 2320 than is true of the liberal interpretation afforded to that phrase in workmen’s compensation cases. As this court said in Bradley v. Humble Oil & Refining Company, 163 So.2d 180, 184:
      “While LSA-Civil Code Art. 2320 imposes liability on employers for torts of their employees committed ‘in the exercise of the functions in which they are employed’, it is absolutely necessary that such a wrong occur in the course and scope of the servant’s employment. While a very liberal interpretation is afforded to the phrase ‘course and scope of employment’ in the workmen’s compensation cases, it is equally true that a more strict interpretation and construction thereof is applied in tort cases where a plaintiff is endeavoring to impose vicarious liability on an employer for personal injuries inflicted by an employee.”

      . A tow chain was rented from a nearby service station. Lowe paid the rental charges.


author: GULOTTA, Judge.

text:
    Patricia BLAIR v. Calvin DIAZ et al.
    No. 7661.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Refused May 6, 1977.

      Murray, Murray, Ellis & Braden, Romual-do Gonzalez, New Orleans, for plain tiff-appellant.
    Michael H. Bagot, John H. Gniady, New Orleans, for Calvin Diaz.
    Before SAMUEL, REDMANN, GULOT-TA, STOULIG and BOUTALL, JJ.
   GULOTTA, Judge.

This litigation arises out of a contract to purchase real property. Plaintiff-purchaser in a suit for refund of his deposit names the vendor and his real estate agent as defendants. Judgment was rendered in favor of plaintiff and against the realtor and his realty company in the sum of $4,000.00, the amount of the deposit. Judgment was further rendered in favor of the seller on his reconventional demand in the sum of $1,750.00, for rent during plaintiff’s occupancy of the premises.

In appealing, plaintiff complains the trial judge erred in failing to cast defendant-seller in judgment, in solido, with the realtor for the amount of the deposit and seeks further to have the judgment in favor of defendant-in-reconvention set aside. Neither the seller nor the realtor has appealed or answered the appeal.

The standard real estate form contract included the following stipulations: “ . for the sum of Thirty-eight thousand— ($38,000.00) Dollars, on the terms of Four thousand dollars Cash, Balance of $10,-000.00 down payment to be made upon settlement of litigation concerning husband’s death. House to be restored to original condition as nearly as possible.” The agreement was entered into on June 30, 1971, and the act of sale was to be passed on or before August 31, 1971.

Mrs. Blair moved into the premises on July 16, 1971. According to her testimony, nothing had been done to make repairs on the house at that time. The needed improvements included, among others, floor repairs, painting, faucet replacements, dishwasher, garbage disposal and sink repair, other plumbing repairs, and fixing the inoperative central air and heating system. Plaintiff testified that for the most part the needed repairs, with the exception of those to the central air and heating system, were made (during her occupancy) through her efforts and those of a friend. •

It is the failure by the seller and his agent to repair the air conditioning and heating system which caused the sale to be aborted after extensions had been granted to January 7, 1972. Plaintiff continued to occupy the premises from July 16, 1971 to February 16, 1972. According to Mrs. Blair, repeated attempts to have the realtor-agent arrange for the air conditioning and heating system repairs were to no avail. Complaints made to the seller were referred to the agent. Because of lack of heating, plaintiff vacated the premises in February, 1972, and this suit followed.

We are confronted, initially, with the question whether the purported agreement actually came into existence. The perfection of the contract is dependent upon the happening of an uncertain event, i. e., “Balance of $10,000.00 down payment to be made upon settlement of litigation concerning husband’s death”. In such case, the uncertainty the settlement of litigation, becomes a condition. LSA-C.C. art. 2043 relating to suspensive conditions provides that when an obligation is dependent on a future and uncertain event, the obligation cannot be executed until after the happening of the event. See also Dufrene v. Tracy, 232 La. 386, 94 So.2d 297 (1957); Boudreaux v. Elite Homes, Inc., 259 So.2d 669 (La.App. 4th Cir. 1972), writ denied, 261 La. 1061, 262 So.2d 42 (1972).

According to the purported agreement, the sale was to take place on or before August 81, 1971. This date was extended to January 7, 1972; however, the sale did not take place. Plaintiff’s wrongful death claim was settled with a jury verdict in June, 1973. Approximately 18 months elapsed between the extended date for the passing of the act of sale and the date of the settlement of the death claim.

In those cases where agreements are silent as to date, our courts have supplied a “reasonable” date. Perrin v. Hellback, 296 So.2d 342 (La.App. 4th Cir. 1974), writ denied, 300 So.2d 184 (La.1974); Guzzo v. Liggio, 224 La. 313, 69 So.2d 357 (1953). When we consider the extended date for the passing of the act of sale, and the date that the claim was actually settled, we conclude that the happening of the occurrence did not take place within a reasonable time as contemplated by the agreement. Under the circumstances, the agreement did not come into existence and no rights flow either to the purchaser or to the seller. See Barber Asphalt Paving Co. v. St. Louis Cypress Co., 121 La. 152, 46 So. 193 (1908); Kansas v. Schaeffer, 299 So.2d 474 (La.App. 4th Cir. 1974), writs refused, 302 So.2d 616 and 302 So.2d 617 (La.1974); Bornemann v. Richards, 245 La. 851, 161 So.2d 741 (1964). Accordingly, plaintiff is entitled to recover the $4,000.00 deposit, not only against the agent, but against the owner also, in solido. See Williams v. Meyer, 29 So.2d 599 (La.App. Orl. 1947).

We are in agreement with the conclusion reached by the trial judge that the defendant-seller is entitled to recover rent from plaintiff for the seven-month period that she occupied the premises. The agreement provided for immediate occupancy by the purchaser. Clearly, authorization for occupancy by the prospective purchaser was predicated on the sale of the property and, therefore, no agreement was made between the parties for any rent payment. Nevertheless, because plaintiff was “unjustly enriched” at the owner’s expense by occupying the premises without any rent payment for the seven-month period, defendant is entitled to recover reasonable rent for that period. We are of the opinion, however, that the lack of air conditioning and heating during plaintiff’s occupancy, caused by the owner’s and his agent’s dereliction, makes the sum of $250.00 per month rental, as determined by the trial judge, excessive. We conclude $100.00 per month is a more appropriate amount. Accordingly, defendant is entitled to offset the $4,000.00 award in favor of plaintiff by the sum of $700.00, rent for the seven-month period at $100.00 per month.

Consistent with the above, the judgment of the trial court is amended and recast as follows: It is ordered that there be judgment herein in favor of Patricia Blair and against Carlton Picou, the Carver Realty Company and Calvin Diaz, in solido, in the sum of $4,000.00 with interest from the date of judgment in this court until paid. It is further ordered that there be judgment in favor of Calvin Diaz and against Patricia Blair in the sum of $700.00, together with interest thereon from the date of judgment in this court until paid. This amount is to be set off against the $4,000.00 judgment in favor of Patricia Blair. Costs to be paid by Calvin Diaz. In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

. REDMANN and BOUTALL, JJ., dissent in part.

REDMANN and BOUTALL, Judges, dissenting in part.

The death claim settlement provision of the written contract of June 30, 1971 may indeed be a condition — a condition which was not met by the contract’s performance date of August 31, 1971. Even so, that June 30 contract authorized plaintiff to immediately occupy the premises (rent-free, since no rent was provided), and therefore the owner cannot complain of plaintiff’s having occupied the premises under that contract.

Furthermore, the petition alleged and the answer admitted that the contract was extended many times. The condition of settling the death claim still was not met.

However, defendant himself testifies that on December 29, 1971 (while the extended contract was still in effect) he agreed with the lender’s notary to pledge $4,400 of stock to the lender as additional security, to enable it to lend the entire balance of the price (including that part of the intended “down payment” which was to come from the settlement of the death claim). The act of sale was set for January 7, 1972 on those terms.

The sale did not go through on January 7 because defendant did not repair the non-functioning central heat and air conditioning system and plaintiff (on advice of counsel) would not take title without it being repaired. (The buy-sell agreement obliged defendant to “restore to original condition as nearly as possible” and original condition included a functioning heating system.)

It thus appears that (1) the parties orally agreed to substitute for the death-claim condition a provision for a higher loan to be partly secured by the seller’s stock, and (2) the orally-modified contract was breached by the seller by his failure to repair the heating system.

Any contract to sell land which depends for vitality upon an oral modification cannot be enforced because of parol evidence exclusionary rules. Nevertheless, the fact in our case is that there was a written contract, extended at least through December 29,1971, under which plaintiff was entitled to occupy the house free of rent. (There was further oral agreement, at least through January 7,1972, under which plaintiff could continue to occupy the house rent-free. Oral evidence is not admissible to prove title to immovables, but it should be admissible to prove that one occupied premises under an oral agreement which the occupier did not breach. However, this view relates to only a few days of plaintiffs occupancy.)

Plaintiff did not breach the contract, and there is no reason to penalize her for defendant’s breach of the contract. It hardly seems fair that plaintiff could refuse to perform a (technically unenforceable) contract because the owner fails to spend $500, yet because of her refusal plaintiff must pay $700. Plaintiff would have been better off to tolerate the owner’s partial breach and suffer the damages of $500 (or sue for that $500) rather than pay $700.

The owner’s claim is, at best, one in the nature of unjust enrichment, an action de in rem verso (see Minyard v. Curtis Products, Inc., 1967, 251 La. 624, 205 So.2d 422). But plaintiff did not impoverish the owner by her occupancy during the period of the purchase agreement (and its extensions); she did not enrich herself “at the expense of” the owner, C.C. 1965 (if at all: when she left this house, she simply moved back to her mother’s house, presumably rent-free). The owner would presumably not have been able to rent the house during the initial two-month period of the agreement (or during its extensions) while awaiting the scheduled sale, and therefore lost nothing by reason of plaintiff’s occupancy. (Even had impoverishment occurred, there was no absence of justification or cause for the “enrichment”; the buy-sell agreement authorized the occupancy.)

Plaintiff continued occupancy, however, for ten days after she abandoned the buy-sell agreement (if its last extension had not already expired) by letter demanding return of her deposit. At that point she was without justification to remain without paying for occupancy, and the owner should have been free immediately to rent the house. The $250 monthly rate the trial judge allowed (the interest only of a loan on the $38,000 house) is reasonable upon the evidence, but the total award should be $83.33 for a third of a month.

      . LSA-C.C. art. 2049 reads as follows:

        Art. 2049. Certainty of term

      “Art. 2049. A term may not only consist of a determinate lapse of time, but also of an event, provided that event be in the course of nature, certain; if it be uncertain, it forms a condition.”

      . LSA-C.C. art. 2021 reads of follows:

        Art. 2021. Conditional obligations, definition

      “Art. 2021. Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition.”

      . LSA-C.C. art. 2043 reads as follows:

        Art. 2043. Kinds of suspensive conditions, effective date of obligations

      “Art. 2043. The obligation contracted on a suspensive condition, is that which depends, either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties.
      “In the former case, the obligation can not be executed till after the event; in the latter, the obligation has its effect from the day on which it was contracted, but it can not be enforced until the event be known.”

      . In our case, the agreement was silent on the date for the “settlement of litigation concerning” the death claim.

      .. See Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); V-8 Taxi Cab Service, Inc. v. Hayes, 322 So.2d 442 (La.App. 4th Cir. 1975).

      . Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848 (La. 1974); Neyrey v. Wright, 134 So.2d 345 (La.App. 4th Cir. 1961); Olinde Hardware & Supply Co. v. Ramsey, 98 So.2d 835 (La.App. 1st Cir. 1957).

      . Interest on unliquidated claims (other than delictual claims [LSA-R.S. 13:4203]) runs from date of final judgment rather than from date of judicial demand. See Sugar Field Oil Co. V. Carter, 214 La. 586, 38 So.2d 249 (1948); Liwerant v. Elwin Corporation, 206 So.2d 766 (La.App. 4th Cir. 1968); Succession of Butler, 294 So.2d 512 (La. 1974).


author: GULOTTA, Judge. REDMANN and BOUTALL, Judges,

text:
    Zelia ACOSTA v. John DOE and the Louisiana Coca-Cola Bottling Company, Ltd.
    No. 7679.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Refused April 26, 1977.

      Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Henry Sarpy, Jr., New Orleans, for defendant-appellant, the Louisiana Coca-Cola Bottling Company, Ltd.
    Before REDMANN, GULOTTA, BOU-TALL, SCHOTT and MORIAL, JJ.
   GULOTTA, Judge.

Mrs. Zelia Acosta sustained back injury in an accident when a truck backed into an automobile occupied by her. We are confronted solely with a quantum question. The trial judge awarded $2,021.64 in special damages and $14,738.36 in general damages. Defendant’s appeal is directed toward the excessiveness of the general damage award.

One of the considerations, among others, of the trial judge, in making the award, was stated in written reasons as follows:

“ * * * In this case the problems confronting a person of advanced age are easily shown due to the fact that the Plaintiff had X-rays taken one month prior to the accident during a routine physical and these X-rays reflected normal findings. Those X-rays taken following the accident showed degenerative changes which were attributed to trauma. * * * ”

Defendant claims the trial judge, in reaching his conclusion, misinterpreted the medical evidence. According to defendant, depositions of plaintiff’s treating physicians do not support the conclusion that degenerative changes were attributed to trauma. We agree.

Dr. Robert A. Robinson, who examined the 67-year-old (at time of trial) plaintiff initially on April 15, 1974, the date of the accident, and continued treatment up to two weeks prior to the trial date on September 23, 1975, stated that his examination of two x-rays — one taken on March 23, 1974, prior to the accident and another taken on August 25, 1975, post-accident— shows arthritic changes that were about the same. The 1974 radiology report indicates “. . there are minor hypertrophic changes in thoracic spine”. And the 1975 post-accident radiology report states: “Mild degenerative changes are present in dorsal spine.”

According to Dr. E. J. Dabezies, who examined plaintiff on February 6, 1975, the effect of the injury had been resolved. Dr. Dabezies further indicated. “There was no evidence of a significant underlying orthopedic disorder. The osteoarthritis of the lumbar spine was considered to be pre-ex-isting and to be unrelated to the injury.”

The remaining physician who testified was Dr. Raoul Guevara. Plaintiff received a course of treatment from his physician along with the treatment administered to her by Dr. Robinson. No mention was made in Dr. Guevara’s testimony which supports the determination of the trial judge that degenerative changes were attributed to trauma.

Under the circumstances, we are compelled to conclude that any award which includes damages for degenerative changes in the spine is necessarily excessive and must be reduced accordingly. We now consider the injuries sustained by Mrs. Acosta as reflected in the medical evidence.

Mrs. Acosta was seen by Dr. Robinson on April 15, 1974, the date of the accident. His diagnosis revealed traumatic fibrositis of the ligaments about the twelfth thoracic (chest vertebra), fourth lumbar, lumbo-sacral and both sacroiliac joints. According to the doctor, he had known plaintiff professionally for a period of approximately 20 years, and during the course of treatment in that period of time, plaintiff had not experienced any back problems. The treatment prescribed by Dr. Robinson for the museular-ligamentous-type injury involved injections on 45 different occasions from April 15, 1974 to July 14, 1975. Dr. Robinson stated that in the weekly or bi-weekly intervals of the visits to his office, injections of Novocain and cortisone were introduced into the sites of the back where tenderness was exhibited. According to the doctor, on some occasions, five injections were administered and as many as eight injections were given at a time on some occasions. Dr. Robinson further testified that during the approximate 15-month period of treatment, plaintiff suffered intermittent pain. He further indicated that some future medical care can reasonably be anticipated. Dr. Robinson added that at the time of the taking of his deposition, October 6, 1975, there existed some residual pain.

Dr. Raoul Guevara administered injections to Mrs. Acosta on five occasions. According to this physician, injection of a cortisone and local anesthetic is an accepted method of treating muscular-ligamentous-type injury of the back. Dr. Guevara added that he had seen plaintiff initially on April 16, 1974, and that she was experiencing muscle spasm at that time.

In a deposition, Dr. Dabezies disagreed with the course of treatment administered by Drs. Robinson and Guevara. According to Dr. Dabezies, he would not prescribe a course of treatment for chronic back syndrome which would involve frequent multiple injections of cortisone. This physician’s regimen of treatment would involve injections at intervals of not less than eight weeks apart. Based on Dr. Dabezies’s testimony, defendant contends that the treatment administered to plaintiff was excessive and that defendant should not be held responsible for the payment of this expensive overtreatment. We find no merit to this contention. In Hillebrandt v. Holsum Bakeries, Inc., 267 So.2d 608 (La.App. 4th Cir. 1972), we stated that no reduction will be allowed based on claimed excessive treatment.

Considering no showing was made that degenerative changes in the spine resulted from the accident, we deem that a $5,000.00 reduction in the amount of the general damage award is reasonable.

Accordingly, the judgment of the trial court awarding general damages to plaintiff in the sum of $14,738.36 is amended and reduced to the sum of $9,738.36. In all other respects, the judgment is affirmed. As amended, affirmed.

AMENDED AND AFFIRMED.

REDMANN and BOUTALL, Judges,

dissenting in part.

This is not a case of reduction of quantum because of excessiveness. Quantum is wrong because the trial judge expressly but mistakenly found traumatic arthritis, and not because he awarded too much for the minor injury from a parking-lot bump which plaintiff in fact suffered. There is no way to tell what the trial judge’s evaluation of that injury would have been. The appellate court must therefore itself fix the damages for that injury. We would fix about $4,000.

      . We do not perceive this matter as a violation of the “much discretion” rule. Accordingly, the guidelines set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.S.Ct.1976), are not applicable.


author: BOUTALL, Judge.

text:
    Maria PRICE v. NEW ORLEANS PUBLIC SERVICE, INC., et al.
    No. 7703.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Robert T. Hughes, Carl & Roussel, New Orleans, for Maria Price.
    v Paul P. Rutledge, Metairie, for Billups Western Petroleum Co., and Hartford Ins. Group.
    A. R. Christovich, Jr., New Orleans, for James Mackey and New Orleans Public Service, Inc.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This is an appeal by plaintiff seeking an increase in quantum from a judgment awarding her $10,000 for personal injuries and damages arising out of a truck-bus collision.

The facts show that plaintiff, Maria Price, was a passenger on a New Orleans Public Service bus on May 25, 1971, when the bus was struck in the right side by a gasoline tank truck owned by Billups Western Petroleum Company. As a result of the collision plaintiff was hurled onto the floor of the bus and wound up on the other side of the bus under a seat, catercorner on her right side. She is not certain whether she was knocked unconscious, but she was certainly dazed, and was taken to Touro Infirmary Emergency Room from the scene of the accident. She received bruises, contusions and hematomas and suffered pain in her back, head, arm and leg on the right side. From the time of the accident down through trial date, Mrs. Price has sought and received treatment from a number of doctors, and had been examined by many more either in consultation with the treating physicians or for evaluation of the injuries on behalf of defendants. Some of her injuries resolved quickly, but the pain in her back required treatment over an extended time, not being resolved until trial time. However, her difficulties with her right arm and hand continued through this period of two years and eleven months, and at trial time her right hand and wrist were still swollen, with a prognosis that she would probably have such swelling the rest of her life.

The record shows that the plaintiff incurred medical expenses for doctors, hospitals, medical appliances and drugs in the amount of $5,700. Additionally, she had been employed as a practical nurse at a salary of $60.00 per week, and had not worked since the time of the accident. The trial judge made an award of $10,000 without specifying any amount for medical bills, lost wages or pain and suffering, nor did he give any reasons for his award. The award in this case comes under the provisions of Louisiana Civil Code Article 1934(3) which provides much discretion must be left to the judge in the assessment of damages.

Plaintiff contends that the award is simply much too small and that the trial judge has abused the discretion granted in that codal article. The Supreme Court of Louisiana has laid down the principles that we must follow in this determination. It is impermissible for us to substitute our opinion for that of the trial judge. To modify the award we must find that the trial judge has abused the much discretion accorded by the codal provision. The adequacy or inadequacy of the award should be determined on the basis of the facts and circumstances peculiar to the case under review, having in regard also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that of residual pain. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (La.1971); Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La.1974).

Without specific findings of the trial judge, we are compelled to examine the record on each facet of the issues presented and arrive at a determination after assessment of each.

Of paramount importance to this case is a determination of the extent of the injuries suffered by Mrs. Price. We note that she was taken from the accident scene to the emergency room at Touro Infirmary where she was examined and x-rays were taken of various portions of her body about which she complained. It was discovered that she had no critical problems, and she was discharged with the suggestion that she get bed rest, utilize ice packs, and that she consult her private physician for treatment. On May 27, 1971 she saw Dr. Solomon Wi-noker, who began treating her in the rehabilitation department at Southern Baptist Hospital. She complained of pain in her right arm, low back, both knees and her right ankle. Dr. Winoker’s examination disclosed that she did indeed have injuries to these areas and he undertook her treatment through July 14, 1971. Despite Dr. Winoker’s best efforts she continued to have swelling and pain in her right hand, wrist and ankle, and pain in the back. Finally, on July 14th, 1971 he decided that his treatment was not affording her relief and suggested that she should obtain further consultation and treatment with other doctors.

Mrs. Price then consulted Dr. Alvin E. Johnson who undertook her treatment from July 26,1971 until June 28,1972. Dr. Johnson noted that Mrs. Price was unable to raise her right arm, that she had a swollen right hand, shoulder, arm, ankle, some discoloration in these areas, pain in the lower back and limitation of grip in the right hand. He too determined that she had no fractures or dislocations and could find no course of treatment that seemed to resolve the plaintiff’s condition. He found a number of prominent physical findings, and there was no question in his mind but that the residuals were from a soft tissue injury in the areas involved. The back injury slowly improved itself, but there was no abatement of the symptoms in the shoulder, arm and hand. He concluded that plaintiff was not capable of working during the course of the treatment because she could not use her right arm or hand, and because of the additional factor of back problems. He referred plaintiff to several specialists during this time. All of the specialists agree that Mrs. Price did suffer the swelling complained of and that there would be some complaints of discomfort and pain referable to her injuries. It should be noted that on one occasion Dr. Gernon Brown, who examined her at defendant’s request, did not find the swelling but a later examination confirmed the swelling. None of these doctors were able to offer a definite basis for Mrs. Price’s continuing swelling and her complaints. Each within his field could not ascertain what caused the continued swelling, but nevertheless it existed in fact. The general consensus was that Mrs. Price had suffered some soft tissue injuries leading to these residuals, and it was admitted that a trauma of the type she suffered, together with the history she related, could result in the findings made.

Dr. Johnson finally concluded that he could not offer to Mrs. Price any hope of successfully resolving her problems, and since she had been in attendance with Dr. Kenneth Vogel, a neurologist, from September 1971, Mrs. Price continued her treatment with Dr. Vogel. He continued to treat her until February 1973, when he caused her to be confined to Mercy Hospital for neurological and cardio-vascular examinations. When Dr. Vogel had first seen Mrs. Price on September 2, 1971 he noted that she had swelling below the right del-toid area, glove hypalgesia to the elbow and hypalgesia of the right foot. He considered that the swellings he noted were possibly caused by lymphadema, the reason for which was unknown, probably caused by trauma. In relation to her back, he concluded that she had suffered an acute lum-bo-sacral strain and degenerative osteo-ar-thritis. He concluded that the accident she suffered had accelerated the onset of the osteo-arthritis making it symptomatic, and he began concentration of treatment in those two areas. He was able to resolve her back injury to the extent that he felt that she could go back to work as a practical nurse or nurse’s aid as of February, 1973, but he could make no recommendation regarding her right arm.

Dr. Vogel also consulted with a number of other specialists, and could not resolve the arm problem. Accordingly, in May of 1973 she began being treated by Dr. W. Hammond Newman, an orthopedist. He found persistent swelling in her right arm all through his course of treatment and referred her to Dr. Alton Ochsner, Jr., a vascular surgeon. These doctors concluded that the swelling probably represented lym-phadema secondary to soft tissue injury with fibrosis in the upper arm. Dr. Newman continued treatments through time of trial, and it is noted that although plaintiff’s symptoms have been relieved somewhat, no solution has been found.

Based upon the medical testimony, we conclude that Mrs. Price was certainly unable to work as of February 1973, and since that time she has suffered some partial disability. She has suffered pain down through the time of trial and the expectation is that she will continue to suffer pain in the future.

Having arrived at this conclusion, we are of the opinion that the damages awarded were insufficient, and are exceeded by the special damages alone. The medical expenses incurred by the plaintiff amount to the sum of $5,700. Additionally, we conclude that plaintiff is entitled to an award for loss of wages in the amount of $6,240.00.

Plaintiff’s occupation was that of a nurse’s aid or practical nurse, and she tended sick patients in their homes, and was so engaged at the time of her injuries. Her duties involved moving the patient in bed, as well as bathing and other chores. She could not do any heavy lifting or manipulation of the patient during the time of her disability, which we consider total, up to the end of February, 1973, with some partial disability thereafter.

The record discloses that she now can do her work, except that she must be careful in lifting, etc., and that she may have brief episodes in which her right arm will pain her. It is difficult to define with exactness the disability she has suffered since February 1973, because it is related mainly to pain, and the extent of that pain is largely a matter of plaintiff’s complaints of it. It is apparent that she has suffered pain and will continue to do so to some lesser extent. To the award of $11,940 for the special damages noted above, we would add an award of $12,500 for the pain and suffering she has already experienced and will continue to experience in the future.

We conclude that the trial judge has abused his discretion in the award of $10,-000, which we find to be inadequate and increase to $24,440.

Accordingly, the judgment of the trial court is amended and increased from an award of $10,000.00 to an award in favor of plaintiff in the amount of $24,440.00, and as thus amended, the judgment is affirmed. Appellees are assessed costs of this appeal.

AMENDED AND AFFIRMED.


author: SAMUEL, Judge.

text:
    Blanche HOLMES v. NEW ORLEANS PUBLIC SERVICE, INC., and Eric G. Fobbs.
    No. 7766.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Carl & Roussel, William S. Vincent, JR, New Orleans, for plaintiff-appellant.
    Floyd F. Greene, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   SAMUEL, Judge.

Plaintiff appeals from a judgment dismissing her suit for injuries incurred while she was a fare-paying passenger on a bus. Defendants are the driver of the bus and New Orleans Public Service, Inc., his employer.

The record contains evidence sufficient to either establish, or furnish a reasonable basis for the trial court to find (and we are satisfied the trial court did find), the following facts:

Plaintiff boarded the bus, paid her fare, and started toward a seat, getting as far as the third seat, when the vehicle made a sudden stop. She fell to the bus floor and was injured. The bus had started forward in an open inside lane when an automobile suddenly turned from the middle lane into the path of the bus. The sudden stop which caused plaintiff to fall resulted from an application of his brakes by the bus driver in order to avoid a collision with the car.

In Miller v. New Orleans Public Service, 196 So. 86, this court recognized the rule that unless there is something about the passenger’s appearance showing he is physically or for some other reason handicapped to the extent that he is likely to fall while attempting to walk in a moving public conveyance, there is no duty on the operator of the conveyance to delay starting until such a passenger has reached a seat. In the instant case the plaintiff was not so handicapped and the bus driver was not required to delay starting until she had reached a seat.

We find, as did the trial court, that the defendant driver was confronted with a sudden emergency through no fault of his own, and that the emergency stop was due solely to the negligence of the motorist who suddenly turned into the path of the bus.

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

AFFIRMED.

      . See Canter v. Koehring Company, La., 283 So.2d 716.

      . See Walker v. New Orleans Public Service, Inc., La.App., 245 So.2d 763; Shannon v. Shreveport Transit Company, La.App., 149 So.2d 206; Johnson v. Shreveport Transit Company, La.App., 137 So.2d 463.


author: LEMMON, Judge.

text:
    Marco MORALES v. HOUSTON FIRE AND CASUALTY COMPANY, INC. (Consolidated with No. 7799, Glen Schurr vs. Houston Fire & Casualty Company, Bell Cleaner, Inc. & William Mora, Jr.)
    No. 7800.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Refused May 6, 1977.

      Kronlage, Dittmann & Caswell, Samuel E. Schudmak, III, New Orleans, for plaintiffs-appellees.
    Bienvenu, Foster, Ryan & O’Bannon, Ernest L. O’Bannon and David E. Walle, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

The liability insurer of Bell Cleaners, Inc. has appealed from a judgment in favor of plaintiff for the amount of fire damage to movable property located in plaintiff’s second story apartment above Bell’s business establishment. The issue is the sufficiency of plaintiff’s proof of Bell’s liability for causing the fire.

Bell’s business occupied four buildings, which were located one behind the other. Clothes distribution and some pressing took place on the lower floor of the two-story building which fronted on Broad Street. The fire started in a small shed located about three to five feet behind the main two-story building. The shed, which Bell used for pressing shirts, had only one door and no windows. Pipes carried steam into the pressing shed from the third building, which was the boiler room. The last building was the chemical shed.

The pressing shed could be seen from the street and was accessible by means of an unfenced alley which ran alongside the main building. All three accessory buildings were apparently located in an open area, surrounded by apartment houses whose residents had complete access to the buildings.

On the night of the fire the owner of the business locked and secured the premises about 9:30 p.m., although pressing operations generally ceased about 5:30 p.m. The fire broke out about 3:30 the following morning.

The pressing shed was completely consumed in the fire. The fire inspector found no evidence of arson and was unable to determine the cause of the fire or the precise point of origin in the pressing shed.

The record contains no other evidence as to the cause of the fire (except hearsay testimony by the inspector reciting improbable statements by a neighbor that at about 1:00 a.m. she saw boys throwing objects at the building, that one of the objects was lighted, that she called the fire department, and that she then “went to watch the fire”).

Thus, while the record established that the fire caused plaintiff’s damage, there was no direct evidence as to what caused the fire. Causation, however, like any other fact, need not be proved by direct evidence and may be shown by circumstantial evidence. The ultimate question is the preponderance of all evidence. Proof, whether by direct or circumstantial evidence, is sufficient to constitute a preponderance when the proof, taken as a whole, shows that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972); Hanover Ins. Co. v. Jacobson-Young, Inc., 294 So.2d 564 (La.App. 4th Cir.1974).

Although the circumstances surrounding the occurrence of a fire may give rise to an inference that a particular defendant was negligent, that negligence is not presumed from the mere happening of the fire, because there can be many causes of fires. The determination of preponderance depends on whether the evidence taken as a whole shows that the particular defendant’s negligence was the most plausible or likely cause of the fire.

All that is shown by the evidence in this case is that a fire began somewhere in the pressing shed and spread to the main building, and that the buildings had been locked about six hours before the fire started. These facts alone do not raise an inference that negligence by the operator of the cleaning business caused the fire.

The only evidence as to the use of the pressing shed was testimony given by plaintiff’s family and answers to interrogatories, and there was no suggestion in the record that combustible materials, flammable liquids or other dangerous substances were kept there or were improperly used or stored in any of the four buildings used by Bell. Indeed, the word “cleaning fluid”, although used in argument, does not appear in the record. Furthermore, there was no evidence of open flames, pilot lights or other ignition sources in the shed. On the basis of this record, and especially in view of the fact that none of Bell’s employees were in the shed when the fire started and had not conducted any activity there for over six hours before the fire started, one could as reasonably infer that the fire was started by burglars in the course of breaking into the shed, by mischievous vandals in the neighborhood, or even by cigarettes thrown by neighbors in the yard as by Bell’s negligence. Compare Barber v. Books, Inc., 316 So.2d 154 (La.App. 4th Cir.1975).

Furthermore, the requirement of preponderating evidence is not lessened by the fact that any evidence which may have identified the cause of the fire was destroyed by the complete overburn of the shed. A plaintiff cannot sustain his eviden-tiary burden by simply showing that proof is virtually impossible or that information explaining the occurrence was more accessible to the defendant. A plaintiff sustains his burden only by showing sufficient circumstances, raising inferences of defendant’s negligent causation, to outweigh other possible explanations.

We conclude that plaintiff has failed to prove by a preponderance of the evidence that Bell’s negligence caused the fire and resulting damages.

Plaintiff contends, however, citing Langlois v. Allied Chemical Co., 258 La. 1067, 249 So.2d 133 (1971), that negligence need not be proved, since a proprietor is absolutely liable under C.C. art. 667 when his use of his property causes damage to a neighbor.

The liability of a proprietor to those damaged by his use of property is absolute in the sense that liability does not depend upon proof of negligence or other fault. See 32 La.L.Rev. 183, 185 (1972). While this theory of absolute liability may dispense with the necessity of proving that the proprietor was negligent in the use of his property, it does not dispense with the necessity of proof that the proprietor’s non-negligent use caused the damages.

Proof of causation is missing in this case, and plaintiff therefore cannot avail himself of any C.C. art. 667 theory of absolute liability.

For these reasons, the judgment of the trial court is reversed, and it is now ordered that plaintiff’s suit be dismissed. Each party is to bear his own costs.

REVERSED AND RENDERED.

      . This neighbor did not testify, but the fire department’s records showed that the first call about this fire came at 3:37 a.m. Another neighbor, whose open second story window overlooked the open area in which the shed was located, was up until 1:30 a.m. watching television and neither saw nor heard anything unusual before retiring.

      . For a discussion of the “more probable than not” burden, see XXIII La. Bar J. 263 (1976).


author: MORIAL, Judge.

text:
    CHARTRES CORPORATION v. Jack A. HONEYCUTT, d/b/a Commercial Contractors.
    No. 7807.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Refused May 6, 1977.

      Derbes & Derbes, James G. Derbes, New Orleans, for plaintiff-appellee.
    Hecker & Orrill, R. Ray Orrill, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Defendant Jack Honeycutt d/b/a Commercial Contractors (Commercial) appeals from a judgment of the district court in favor of Chartres Corporation (Chartres) in the amount of $4,634.74.

Commercial was engaged in the construction of a housing project at Fort Polk, Louisiana. Commercial determined that it would use a specialized flooring material called “Dex-o-Tex” to cover the balconies of the housing project. Crossfield Products (Crossfield), Pascagoula, Mississippi the manufacturer of “Dex-o-Tex” was contacted by Commerical about purchasing the product. Commerical was informed by Crossfield of its policy of limiting the sale of “Dex-o-Tex” to factory trained applicators. Crossfield required distributors of “Dex-o-Tex” to provide purchasers with a factory trained expert to supervise the installation of this specialized product. This expert supervision included a determination of the suitability of the floor base for the application of “Dex-o-Tex.” Ronald Byrd, one of Crossfield managers referred Commercial to Chartres, a factory trained distributor and applicator of “Dex-o-Tex”. Chartres and Commercial had several discussions after which Chartres ordered the materials from Crossfield and had them delivered to the job site in June 1973. During the discussions Chartres agreed to send an expert to advise and instruct Commercial with regard to the installation of “Dex-o-Tex”. Some time after the materials were delivered to the job site, Chartres sent an expert to inspect the job site. The exert determined that the sub-base of the balconies was not suitable for the application of “Dex-o-Tex”.

Chartres sent Commercial an invoice for $335.00 for the expert’s services. In late November, Commercial sent a wire to Crossfield requesting the proper address to which it was to return the materials. The materials were returned to Crossfield on December 15, 1973. Neither a manager nor a supervisor of Crossfield were present at the time of delivery. Later that week a Crossfield manager took an inventory of the materials that had been returned by Commercial. He determined that some of the materials were missing and a portion of the remaining materials were rendered useless by exposure to moisture and improper storage. These materials were discarded by the factory.

Chartres received credit for the materials returned in usable condition, but was billed a 15% restocking charge of $1,037.83. Chartres was also billed $3,261.91 for the materials which had been determined to be useless and which were discarded. Plaintiff paid Crossfield. Chartres sued Commercial for the costs of the discarded materials, the 15% restrocking charge and the expert fee of $335.00.

The district court found for plaintiff without any reasons for judgment. We reverse.

Chartres was a factory trained applicator of “Dex-o-Tex” and, as such, had a superior knowledge with regard to the handling, and prerequisites for installation of this specialized material. It is reasonable to conclude that an experienced manufacturer trained distributor would know or should know that “Dex-o-Tex” could not be placed on every flooring base used in the construction industry. In view of plaintiff’s special knowledge and experience relating to the installation of “Dex-o-Tex” it came under a duty to ascertain the suitability of the sub-base prior to ordering and having shipped a large and valuable quantity of a special type of materials without having first inspected the fitness of the sub-base. Chartres acted negligently and, therefore, should sustain any loss incurred as a result of its improper conduct.

Furthermore, a buyer has the right to reserve to himself the right to inspect and try a product to determine if the product is fit for him and its intended use. Until the buyer is satisfied with the trial, which is a kind of suspensive condition of the sale, the sale is incomplete. See LSA-R.C.C. Article 2460. In this case, the determination of the suitability of the floor base by the expert was a kind of suspensive condition. LSA-R.C.C. Article 2471 provides that a sale, made with a suspensive condition does not transfer the property to the buyer, until the fulfillment of the condition. If the thing is destroyed before the condition occurs, the loss is sustained by the seller. The finding by Chartres expert of non-suitability of the floor base to receive the application of “Dex-o-Tex” rendered the fulfillment of the suspensive condition impossible and prevented the consummation of the contract of sale. Therefore, the risk of loss was never shifted to Commercial. Chartres remained responsible for the preservation of the goods at all times during the transaction and thus liable for any losses incurred.

For the foregoing reasons the judgment of the district court is reversed. Appellee is to pay all costs.

REVERSED.

      . Defendant being unable to obtain instructions from the plaintiff regarding the return of the merchandise had it delivered to Crossfield at its expense.


author: SCHOTT, Judge. REDMANN, Judge, BOUTALL, Judge,

text:
    KOHLMEYER & CO., in Liquidation through its Liquidators, Herman S. Kohlmeyer, Sr., et al. v. Edgar L. BRAUD et al. KOHLMEYER & CO., in Liquidation through its Liquidators, Herman S. Kohlmeyer, Sr., et al. v. Robert R. WOLF.
    Nos. 7809, 7810.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearings Denied March 15, 1977.
    Writs Refused May 6, 1977.

      Chaffe, McCall, Phillips, Toler & Sarpy (George A. Kimball, Jr. and James P. Far-well), New Orleans, for plaintiffs-appellants.
    Reynolds, Nelson & Theriot (Charles W. Nelson, Jr.), New Orleans, for defendants-appellees, Brown, Duffy, Kremer & Odence.
    Mark W. Malloy, New Orleans, for defendant-appellee, Edgar L. Braud.
    Flanders & Flanders (Dudley D. Flanders), New Orleans, Breazeale, Sachse & Wilson (Victor A. Sachse), Baton Rouge, Baldwin, Haspel, Rainold, Meyer, Reso, Dussom & Little (Michael F. Little), New Orleans, for amici curiae.
    Before REDMANN, STOULIG, BOU-TALL, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiffs, as the liquidators of a partnership, instituted these proceedings against ten general partners alleging that the partnership agreement provided in pertinent part as follows:

“The net losses of the partnership annually shall be . borne by the general partners in the proportions set opposite their respective names . . . ”

They alleged further that the partnership suffered losses in each of the years from 1969 through 1974 and prayed for judgment against each defendant in various amounts.

Six of the defendants filed various peremptory, declinatory and dilatory exceptions. One of these defendants settled his case. With respect to the remaining five, the trial judge maintained their exceptions of no cause of action and dismissed plaintiffs’ suit against them. From this judgment plaintiffs .have appealed.

The basis for the exceptions of no cause of action filed by defendants is that a partner is not liable for the payment of a specific sum before there has been a final accounting and settlement of partnership affairs. They cite a plethora of cases in our jurisprudence which stand for the proposition that a partner cannot be required to account to his other partners for a debt arising out of their relationship as partners until the partnership has been completely liquidated and there has been a final accounting for all partnership assets and liabilities and a final settlement of all partnership affairs. However, they acknowledge that the jurisprudence has supplied an exception in that the rule does not apply where the parties have by express agreement segregated a particular item of account from the partnership settlement. Parker v. Davis, 225 La. 359, 72 So.2d 877 (La.1954), Rondeau v. Pedesclaux, 3 La. 510 (1832).

Plaintiffs have alleged that there was a special agreement among the partners with respect to each bearing his proportion of the annual losses of the partnership so that they allege facts which give rise to the principle enunciated in the cited cases. Defendants attempt to distinguish the Rondeau ease on the theory that the partnership agreement there provided that the partners would sign a note for their indebtedness, the defendant partner in the case did sign such a note and this constituted a true segregation from other partnership accounts of the particular indebtedness involved; but the basis for the decision in the Rondeau case was the partnership agreement itself, just as in this case the partnership agreement itself imposed an obligation on defendants to put up their proportionate shares for the losses in the years in question.

Defendants would make a distinction because this case is brought by the liquidators with the connotation that the affairs of this partnership are now being wound up so that the theory of preventing actions against individual partners until a final settlement is especially appropriate. LSA-C.C.P. Art. 692 provides that a liquidator is the proper plaintiff to sue to enforce a right of a partnership. Surely if the partnership itself had the right to insist under the partnership agreement that the defendants put up their proportionate shares of the losses, the liquidators now have the same right.

Finally, defendants have contended that the agreement is unclear since the word “borne” might be interpreted to mean that the losses might be charged to the partners but not necessarily collected. If the language is unclear evidence might be admissible to show the intention of the parties and perhaps the manner in which this particular part of the partnership agreement had been implemented in the pasr. None of this is before us since we are dealing only with the exception of no cause of action.

Accordingly, the judgment appealed from is reversed and set aside, the exceptions of no cause of action are overruled and the case is remanded to the trial court for further proceedings. All costs of this appeal are to be borne by defendants. Liability for other costs is to be determined by the trial court.

REVERSED AND REMANDED.

REDMANN, J., dissents with written reasons.

BOUTALL, J., dissents with written reasons.

REDMANN, Judge,

dissenting.

Even if “borne” means “paid in cash”, plaintiff’s petition alleges nothing more than that a partnership which is in liquidation suffered losses which the partners are supposed to pay. That petition does not state a cause of action.

One supposes that the partners would be paying themselves, and that the liquidators would ultimately return to each partner 100% of his partnership capital. Surely the liquidators who may already have 75% of the capital of each cannot demand the other 25% in order to return 100%. Or does one suppose that the partnership has creditors to whom the partner’s payments must be paid? If the latter is the case, then the petition should allege the facts that justify the partners being forced to pay capital deficits into a partnership which is already in liquidation. It does not allege such facts. The exception of no cause of action was proper, although leave to amend to state a cause of action might properly be allowed.

BOUTALL, Judge,

dissenting.

The majority opinion has accurately described the issue herein. If Article 10 of the partnership agreement is interpreted to require that each partner shall pay into the partnership the amount of the loss experienced for that year as a special yearly payment, then a partner could be made to pay under the agreement, just as in the case of Rondeau v. Pedesclaux, 3 La. 510 (1882). Basically, my disagreement is that the quoted provision of Article 10 does not require payment as was the case in Rondeau.

At the outset I must point out that the petition is rather vague, and I believe necessarily so, in order that the petitioners may make a better showing of compliance with the Rondeau exception. Although the petition makes frequent references to the partnership agreement, it does not make the agreement a part of the petition so that the court may use the document for an examination of that particular section of Article 10 in light of the entire agreement between the parties. However, my interpretation of Article 10 is simply that annually, (presumably at the end of the calendar or fiscal year) an audit will be made to determine whether the company made money or lost money, and that amount will then be either credited to or deducted from whatever other assets or credits of the partner are held by the partnership. The petition in itself discloses that no demands have ever been made of any of the partners in either suit to pay at the end of any year such amount as may have been claimed as a loss.

It should be kept in mind that this is not an ongoing partnership such as the Ron-deau situation. This is a liquidation to wind up the affairs of the partnership, the net result of which will be to distribute to each partner his proportionate share of the assets or debts of the partnership. Thus in effect, it is in the nature of a partial accounting, which is denounced by numerous jurisprudential cases. The petition, although particularized to losses for specific years, shows in itself that it is not just an assessment of a specific year’s loss in accordance with a proportionate division amongst the partners. An analysis of the sums mentioned show that there is no proportionate correlation amongst them from year to year, and this, coupled with the allegations that the losses are adjusted subject to certain credits, etc., demonstrate that this is simply a guise to enforce contribution from particular partners without an accounting of their overall standing in the partnership. Specifically, it is noted that in the suit against partner Wolf, the petition alleges that he was a partner since 1966, and although it states that in each specific year in which there was a loss an adjustment was made of credits and debits resulting in a certain figure, there is no statement that his account anywhere along the way was in arrears, or even is in arrears at the time of filing of the suit. In the suit against the several partners, there is no statement as to when they became partners, but a similar set of allegations prevail.

Thus, under the allegations of this petition, any of these partners may be in a capital position superior to that of the partners not party to the suit and yet they are being asked to contribute money to the liquidation of the partnership. I can only consider this as an attempt to defeat the final adjustment of account owed to the partners under the law. Presumably, if this suit is permitted to proceed, not one of these defendants would be able to use as a defense the fact that the partnership owes him money, and presumably he will be unable to require that the account of other partners be considered in relationship to his. Any accounting between the partners or interrelation of their accounts can hardly be considered without reference to the entire partnership agreement, only a few selected words of which are placed before us in this petition. It may be that reference to the entire partnership agreement would support plaintiff’s position that it has a cause of action. If so, then the exception should be maintained, but plaintiff given an opportunity to amend.

However we have before us only the bare allegations as noted above. One can glean from the allegations that the partnership is in liquidation, that the affairs are being wound up, and the accounts of the various partners are being settled. To bring this suit, requiring the defendants to pay specific year’s losses without regard to the partners’ overall status in the partnership and without an accounting, is representative of the very evil that the general rule of partnership suits is designed to prevent. The judgment of the trial court should be affirmed.