author: SARTAIN, Judge.

text:
    CAPITAL SAVINGS ASSOCIATION v. A. J. RUNNELS, Jr.
    No. 12058.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      W. Frank Gladney and W. Steven Man-near, Baton Rouge, of counsel for respondent-appellee R. Lowenbaum Manufacturing Co. et al.
    Ralph W. Brewer, Baton Rouge, of counsel for respondent-appellee United Fashions, Inc.
    John S. Campbell, Jr., Baton Rouge, of counsel for plaintiff-appellee Capital Savings Association.
    M. Carr Ferguson, Gilbert E. Andrews, Crombie J. D. Garrett, Thomas M. Walsh, Washington, D. C., and George Hardy and Darrell D. White, Asst. U. S. Attys., Baton Rouge, of counsel for defendant-appellant United States.
    A. J. Runnels, Jr., in pro per.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is a concursus proceeding brought by the Sheriff of East Baton Rouge Parish to determine the priority of lien claims to the sum of $18,961.00, the balance of the proceeds of the sheriff’s sale of property owned by the defendant, A. J. Runnels, Jr., after payment of the sums due plaintiff, Capital Savings Association, and the costs of the sale. The facts are undisputed. They were stated as follows by the trial court:

“The defendants’ claims and the priority to be assigned thereto are based on the following sequence of events:
1. Recordation of a conventional mortgage on the subject property in favor of Capital Savings Association on February 21, 1967.
2. Recordation of a judgment for $2,165.33 in favor of United Fashions, Inc., against Runnels on February 10, 1971.
3. Recordation of a notice of a federal tax lien for $7,191.81 against Runnels later on February 10, 1971.
4. Recordation of a judgment for $1,139.84 in favor of R. Lowenbaum Manufacturing Co., against Runnels on May 7, 1971.
5. Recordation of a judgment for $178.72 in favor of Caron Jewelry and Gift Co., against Runnels on June 23, 1971.
6. Recordation of a notice of a federal tax lien for $2,182.00 on July 23, 1971.
7. Recordation of a judgment for $783.00 in favor of C.B.S. Dress and Sportswear Co., against Runnels on September 3, 1971.
8. Recordation of a notice of a federal tax lien for $4,573.44 on September 13, 1971.
9. Recordation of a notice of a federal tax lien for $2,982.27 on October 18,1971.
10. Seizure of the property by the United States Government on July 18, 1975, pursuant to provisions of the Internal Revenue Code. 26 U.S.C. 6331.
11. Sale of the property by the government, following advertisement, on September 9,1975. At the sale, the minimum bid price of $7,304.50 was not received. The property was then declared to be purchased by the government pursuant to 26 U.S.C. 6335(e). A deed to the property was executed on February 4, 1976, and recorded with the Clerk of Court of East Baton Rouge Parish on February 6, 1976, pursuant to 26 U.S.C. 6338(c).
12. Seizure of the property by the East Baton Rouge Parish Sheriff’s office on February 8, 1977, pursuant to a writ of seizure issued at the request of Capital Savings Association.
13. Sheriff’s sale of the property to Donald V. Regner for $35,250.00.
Costs and attorney’s fees incurred in connection with the Sheriff’s sale, amounting to $1,279.85 have been paid. The claim of Capital Savings Association amounting to $13,132.25 has been satisfied. The balance of $18,961.00 remains to be distributed.”

All parties agree that United Fashions, Inc., should be paid first out of the balance remaining. We must determine the rights of the remaining claimants: the United States of America, R. Lowenbaum Manufacturing Co., Jack M. Caron, d/b/a Caron Jewelry & Gift Co., and C.B.S. Dress & Sportswear Co. In the remainder of this opinion the United States of America will be referred to as the Government and the other claimants as the junior lienors.

The main issue for our determination is the effect of the purported “sale” to the Government on September 9, 1975. The Government urges that the sale along with the recordation of its deed to the property discharged the property from all encumbrances inferior to that of its first tax lien. 26 U.S.C. § 6339(c). Therefore the Government as owner should receive the surplus after payment to United Fashions, since there would then remain no inferior encumbrances. C.C.P. Art. 2373.

The junior lienors urge that the surplus should be paid to lienors inferior to United Fashions in the order in which their liens were placed on the property. They argue first that state law is applicable under which the “sale” to the Government would be considered a datien en paiement which would not extinguish their rights. See Quality Finance Co. of Donaldsonville, Inc. v. Bourque, 315 So.2d 656 (La.1975). They then argue that even under federal law the “sale” did not extinguish their rights. Finally, they urge that the deprival of their lien rights in this manner constitutes the denial of due process. We will discuss these assertions of the junior lienors in turn.

Federal law is clearly controlling as to the operation and enforcement of federal tax liens. See, e. g., United States v. Equitable Life Assurance Society, 384 U.S. 323, 86 S.Ct. 1561, 16 L.Ed.2d 593 (1966); United States v. Speers, 382 U.S. 266, 86 S.Ct. 411, 15 L.Ed.2d 314 (1965); Aquilino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960); S. D’Antoni, Inc. v. Great Atlantic & Pacific Tea Co., 496 F.2d 1378 (5th Cir. 1974); Bank of Nevada v. United States, 251 F.2d 820 (9th Cir. 1957), cert. den. 356 U.S. 938, 78 S.Ct. 780, 2 L.Ed.2d 813 (1958). The definition of sale under Louisiana law is therefore irrelevant. The Government proceeded in accord with the federal statutory scheme in having itself declared owner of the property in question. It first levied on the property pursuant to 26 U.S.C. § 6331 in a summary effort to collect its first lien of $7191.81 which the debtor had refused to pay after notice and demand. The property was advertised as required by statute. 26 U.S.C. § 6335(b). In accordance with 26 U.S.C. § 6335(e)(1) the Government set a minimum price of $7304.50 at which the property could be sold. When this price was not bid the property was declared to be purchased by the Government at the minimum price. 26 U.S.C. § 6335(e)(1). When neither Runnels nor the junior lienors redeemed the property within one hundred twenty days as provided by 26 U.S.C. § 6337(b), a deed in favor of the Government was executed. 26 U.S.C. § 6338(c). The Government asserts that this deed discharged the property from all junior encumbrances. 26 U.S.C. § 6339(c).

The Government appears to be correct. The clear wording of the statute is that “a deed to real property executed pursuant to section 6338 shall discharge such property from all liens, encumbrances, and titles over which the lien of the United States with respect to which the levy was made had priority.” The junior lienors, however, argue that the statute was never intended by Congress to cover this situation and that this lacuna in the law should be filled by resort to the equitable principle of “first in time, first in right.”

The wording of the statute is clearly broad enough to cover the situation where the Government has adjudicated the property to itself. The statute was intended as a codification of prior jurisprudence. See H.Rep. No. 1884, 89th Cong., 2d Sess., p. 62 citing Blacklock v. United States, 208 U.S. 75, 28 S.Ct. 228, 52 L.Ed. 396 (1908) and Commercial Credit Corp. v. Schwartz, 130 F.Supp. 524 (E.D.Ark.1955); S.Rep. No. 1708, 89th Cong., 2d Sess., p. 20, U.S.Code Cong. & Admin.News 1966, p. 3722. Under these cases it is clear that if a third party had purchased the property from the Government after the distraint sale and adjudication he would have received the property free and clear from the claims of the inferior lienors. Blacklock, above. Likewise, if a third party had purchased at the distraint sale he would be protected. Commercial Credit Corp., above. We see no reason to give the Government less protection. It, in effect, paid $7304.50 for the property. Its first lien of $7191.81 was satisfied and it itself absorbed the cost of the sale and the distraint proceedings. 26 U.S.C. § 6335(e)(1).

Under Louisiana procedure the seizing creditor may always bid in the property. C.C.P. Art. 2339. In such a situation if the amount of his accepted bid is the amount of his security plus costs, he will simply pay the amount of costs to the sheriff. The federal procedure is the same, except since the seizing creditor itself is acting as “sheriff” costs are not paid but are simply absorbed. Under Louisiana law if the seizing creditor bid the property in this manner he would obtain it free and clear of all junior encumbrances, just as did the federal government under its procedure. C.C.P. Arts. 2375-2377. The property would likewise remain subject to superi- or encumbrances, as under federal law. C.C.P. Art. 2372. Although such Louisiana procedure is certainly not controlling in this action, it shows that the federal procedure is not at all unusual.

We are forced to conclude that the district court fell into error when it, by analogy, applied the holding in Commercial Credit Corporation v. Schwartz, above, to the facts in the instant case. In that case the court was concerned with the proceeds from a distraint sale of property, the title to which was never vested in the Government. There was no intervening statute adversely affecting inferior liens. We are in complete accord with its holding. See: Summer v. Allison, 127 Ga.App. 217, 193 S.E.2d 177 (1972).

In the case at bar, however, title to the property had been vested in the Government and there was an intervening statute adversely affecting inferior liens, namely, Sec. 6339(c).

The district judge conceded that had a third party purchased the property at the distraint sale they would have received the same free and clear of inferior liens. The judge a quo theft reasoned that equitable considerations dictate against permitting the Government to take title to the property, hold the same, wait for a superior lienor to force its sale, and then claim the proceeds thereof to the prejudice of junior lienors.

By the same token we say that a junior lienor should not be permitted to refrain from purchasing the property at the dis-traint sale, decline to exercise its right of redemption, permit the Government to take title, wait for a superior lienor to force another sale, then claim lien rights to the proceeds under the principal of “first in time, first in right.”

We do not ascribe to the seizure of the property by the Government the constitutional infirmity averred by the junior lienors. The summary tax collection procedures of the Government have been universally upheld in suits between the Government and the property owner or taxpayer. C.I.R. v. Shapiro, 424 U.S. 614, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976); Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931).

For the above reasons, we reverse the judgment of the district court insofar as it decreed that the funds remaining on deposit after payment to United Fashions, Inc. be distributed to the remaining junior lienors according to the priority of recordation and decree that after the payment to United Fashions, Inc. and all costs of these proceedings any sums remaining be paid to the United States of America. This matter is herewith remanded to the district court for this purpose.

REVERSED AND REMANDED.

      . 26 U.S.C. 6339(c).
      “A certificate of sale of personal property given or a deed to real property executed pursuant to section 6338 shall discharge such property from all liens, encumbrances, and titles over which the lien of the United States with respect to which the levy was made had priority.”

      . C.C.P. Art. 2373.
      “After deducting the costs, the sheriff shall first pay the amount due the seizing creditor, then the inferior mortgages, liens, and privileges on the property sold, and shall pay to the debtor whatever surplus may remain.”

      . 26 U.S.C. 6331.
      “(a) Authority of Secretary or delegate. — If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer (as defined in section 3401(d)) of such officer, employee, or elected official. If the Secretary or his delegate makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary or his delegate and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section.
      (b) Seizure and sale of property. — The term ‘levy’ as used in this title includes the power of distraint and seizure by any means. A levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the Secretary or his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible).
      (c) Successive seizures. — Whenever any property or right to property upon which levy has been made by virtue of subsection (a) is not sufficient to satisfy the claim of the United States for which levy is made, the Secretary or his delegate may, thereafter, and as often as may be necessary, proceed to levy in like, manner upon any other property liable to levy of the person against whom such claim exists, until the amount due from him, together with all expenses, is fully paid.
      (d) Cross references.—
      (1) For provisions relating to jeopardy, see subchapter A of chapter 70.
      (2) For proceedings applicable to sale of seized property, see section 6335.”

      . 26 U.S.C. 6335(b).
      “The Secretary or his delegate shall as soon as practicable after the seizure of the property give notice to the owner, in the manner prescribed in subsection (a), and shall cause a notification to be published in some newspaper published or generally circulated within the county wherein such seizure is made, or if there be no newspaper published or generally circulated in such county, shall post such notice at the post office nearest the place where the seizure is made, and in not less than two other public places. Such notice shall specify the property to be sold, and the time, place, manner, and conditions of the sale thereof. Whenever levy is made without regard to the 10-day period provided in section 6331(a), public notice of sale of the property seized shall not be made within such 10-day period unless section 6336 (relating to sale of perishable goods) is applicable.”

      . 26 U.S.C. 6335(e).
      “(1) Minimum price. — Before the sale the Secretary or his delegate shall determine a minimum price for. which the property shall be sold, and if no person offers for such property at the sale the amount of the minimum price, the property shall be declared to be purchased at such price for the United States; otherwise the property shall be declared to be sold to the highest bidder. In determining the minimum price, the Secretary or his delegate shall take into account the expense of making the levy and sale.”

      . 26 U.S.C. 6337(b).
      “(1) Period. — The owners of any real property sold as provided in section 6335, their heirs, executors, or administrators, or any person having any interest therein, or a lien thereon, or any person in their behalf, shall be permitted to redeem the property sold, or any particular tract of such property, at any time within 120 days after the sale thereof. (2) Price. — Such property or tract of property shall be permitted to be redeemed upon payment to the purchaser, or in case he cannot be found in the county in which the property to be redeemed is situated, then to the Secretary or his delegate, for the use of the purchaser, his heirs, or • assigns, the amount paid by such purchaser and interest thereon at the rate of 20 percent per annum.”

      . 26 U.S.C. 6338(c).
      “If real property is declared purchased by the United States at a sale pursuant to section 6335, the Secretary or his delegate shall at the proper time execute a deed therefor, and without delay cause such deed to be duly recorded in the proper registry of deeds.”

      . C.C.P. Art. 2339.
      “The judgment debtor and the seizing creditor may bid for the property.”

      . Art. 2375.
      “The purchaser is liable for nothing beyond the purchase price. He shall pay the full purchase price to the sheriff, despite the existence of a mortgage, lien, or privilege on the property inferior to that of the seizing creditor.”
      Art. 2376.
      “The sheriff shall give the purchaser a release from the mortgage, lien, or privilege of the seizing creditor, and from all inferior mortgages, liens, and privileges, and he shall direct the recorder of mortgages to cancel their inscriptions in so far as they affect the property sold.”
      Art. 2377.
      “The sheriff shall pay the inferior mortgages, liens, and privileges, after payment of the costs and the amount due the seizing creditor. When the sum remaining after payment of the costs and the amount due the seizing creditor is insufficient to pay such inferior claims in full, the sheriff may deposit the remainder with the court and proceed by contradictory motion against the inferior creditors to have their claims referred to the proceeds of the sale.”

      . C.C.P. Art. 2372.
      “The property is sold subject to any real charge or lease with which it is burdened, superior to any mortgage, lieri, or privilege of the seizing creditor.”


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    HOME FINANCE CORPORATION v. Louis L. FISHER.
    No. 12087.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      George R. Covert, Baton Rouge, of counsel for plaintiff-appellee Home Finance Corp.
    C. Alvin Tyler, Baton Rouge, of counsel for defendant-appellant Louis L. Fisher.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is a suit on a promissory note by the plaintiff holder, Home Finance Corporation, against the defendant maker, Louis L. Fisher, in the principal sum of $1984.28. The note was executed on August 29, 1969, in the amount of $2096.28 payable to plaintiff in 36 monthly installments of $58.23 each, plus interest at the rate of 8% per annum from September 15,1974, and 20% additional upon principal and interest as attorney’s fees. The first payment was due on October 15, 1969, and the note provided:

“Default in the payment of any installment hereof, shall, at the option of the holder hereof, and without notice or demand, render the entire balance at once due and payable.”

No payments were made on the note until February of 1975, and those that were made were paid in the following manner:

February, 1975 $ 34.00
June, 1975 t 42.00 '
t February, 1976 ' 36.00
$112.00

Suit was filed on August 9, 1976, and in response thereto the defendant filed the peremptory exception of five years prescription based on La.C.C. Article 3540. The exception was dismissed by the trial court and the defendant filed an answer generally denying the allegations of the plaintiff’s petition.

The trial court rendered judgment in favor of plaintiff and against the defendant in the amount of $1984.28 with interest thereon at the rate of 8% per annum from August 9, 1976, until paid, together with 20% additional on principal and interest as attorney’s fees.

The defendant, Louis L. Fisher, has taken this appeal; the plaintiff, Home Finance Corporation, has not answered nor has it appealed.

Defendant first contends that because he defaulted on the first payment due, the entire balance of the note became immediately due in October of 1969 and began the running of prescription which accrued as to the entire note five years thereafter in October of 1974, which was before any payment or the filing of the suit herein.

The answer to this contention is that the acceleration clause in the note quoted above was not automatic and that the plaintiff holder never exercised its option to accelerate the maturity of the note.

Defendant’s alternative contention is that all installments due more than five years before the filing of this suit, i. e. August 9, 1971, are prescribed and the principal bal-anee is reduced to the sum of $815.22.

We find, as both parties apparently agree, that the trial judge was in error in dismissing the defendant’s exception of prescription as to all 36 installments under the note.

The following rule pertinent to the facts presented herein was stated in Anthon v. Knox, 155 So.2d 53 (La.App. 1st Cir. 1963):

“ ‘. . . where there is an acceleration clause giving the creditor the right upon certain contingencies to declare the whole sum due, the statute begins to run, only with respect to each installment, at the time the installment becomes due, unless the creditor exercises his option to declare the whole indebtedness due, in which case the statute begins to run from the date of the exercise of the option.’ ”

By the time of the first payment in February of 1975, five years had elapsed from the time of the due date of each of the first five installments, i. e., on the installments which were due from the months of October 15, 1969, to February 15, 1970. Thus, the payment in February of 1975 served to interrupt prescription on all installments due after February 15, 1970, i. e., those due from March 15, 1970 to September 15, 1972, a total of 31 installments at $58.23 representing the sum of $1805.13. Since payments were made in the amount of $112.00 the defendant is therefore entitled to a credit of that amount leaving a principal balance of $1693.13.

Plaintiff, not having appealed or filed an answer to the appeal, is not entitled to have the interest begin on September 17, 1974, instead of on August 9, 1976, as allowed by the trial court.

Accordingly, the exception of prescription is maintained as to the first five installments and dismissed as to the remaining installments. The judgment of the trial court is amended to reduce the principal sum to the amount of $1693.13, and affirmed in all other respects.

Costs of this appeal are to be equally divided between the parties.

AFFIRMED IN PART, REVERSED IN PART, AND AMENDED,

      . See: Collin v. Gill, 216 So.2d 620 (La.App. 4th Cir. 1968), writ refused; Morgan’s Discount Corporation v. Belote, 338 So.2d 1222 (La.App. 3rd Cir. 1976); Thomas v. Jones, 353 So.2d 301 (La.App. 1st Cir. 1977).


author: REDMANN, Judge.

text:
    Robert MITT et al. v. SECURITY INSURANCE CO. et al.
    No. 9291.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 12, 1978.

      Robert M. Caswell, New Orleans, for plaintiffs-appellants.
    Leonard A. Young, New Orleans, for Security Ins. Co. of Hartford, defendant-appellant.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   REDMANN, Judge.

From a judgment on jury verdict against a garbage truck driver and the truck’s insurer for the wrongful death of a 17-year-old boy working with the garbage truck crew, his biological father, his legal father, his mother and the truck’s insurer appeal.

We preliminarily reverse the judgment against the insurer, whose applicable exclusion is effectively identical to that applied in Spain v. Travelers Ins. Co., La.1976, 332 So.2d 827. (We therefore do not rule on the expert fee questions raised by the insurer alone.)

Plaintiffs’ appeal aims primarily at Pat Ford, president of the corporate employer of the garbage truck crew. The jury found him negligent but found his negligence not a “proximate cause” of the accident.

The accident occurred when the driver suddenly drove the truck backwards to catch a missed pick-up and the boy fell under the truck from a “picker’s platform” at its rear.

Plaintiffs’ theory of Ford’s liability is that “he actually knew that his drivers were . . . backing up huge garbage trucks in residential subdivisions . . .” Accepting that the presence of young children in a residential area might impose a duty upon the driver towards the children not to back up, and thus arguably might impose a duty upon the company president to instruct drivers not to back up, nevertheless injury to an employee who falls off the truck is not a risk designed to be avoided by the imposition of that duty upon the company president. Breach of that duty towards the children is therefore not a legal cause of the injury to and death of the employee. See Pierre v. Allstate Ins. Co., 1970, 257 La. 471, 242 So.2d 821. (Moreover, the jury may also have concluded that it was not the simple backing up, but the suddenness of it, that caused the boy to fall.)

Similarly, plaintiffs’ argument that Ford’s causative fault was failure to “train, instruct and supervise employees as to safe operating procedures” (ignoring that Ford and the truck’s other garbage picker testified that Ford did instruct pickers not to stand on the back of the truck but on its side towards the rear) is unpersuasive because directing employees not to back up in a residential subdivision is a duty owed, if at all, to the children of the subdivision and not to the truck employees.

That Ford let the boy work in shoes with worn heels and no shoestrings, of which plaintiffs complain, was not shown to be a “cause in fact”, Pierre, supra, (a sine qua non or condition precedent, a “but for” element) of the accident. That the boy’s clothing was “dangerous and unsafe” is similarly remote.

Plaintiffs’ argument that hiring a known incompetent as a driver makes a corporate officer personally liable for the incompetent driver’s driving torts may be legally sound but it is not factually supported. Despite his fault in this .accident, this driver was not shown to be a known incompetent.

Plaintiffs also argue that Ford “knew or should have known” that the boy was a 17-year-old minor rather than an 18-year-old major. They cite Boyer v. Johnson, La.1978, 360 So.2d 1164, which we distinguish because of the statutory prohibition there involved. A legislature might proscribe employing 17-year-olds on garbage trucks to prevent their exposure to unreasonable risks (possibly including that the truck should back up suddenly and cause them to fall to injury or death under its wheels); or a jury might (if it had more facts than this one had) conclude that hiring this 17-year-old for such work was a causative fault of his injury and death (because, for example, if the evidence had shown it, he was obviously as immature as a ten-year-old, unable to protect himself against the ordinary risks on a garbage truck). But in the absence of legislative proscription or evidence of patent, unusual immaturity or the like, the hiring of a 17-year-old is not fault causative of an injury which, like that which here occurred, could as easily have occurred had he been 18 or 20.

We cannot substitute our evaluation of the evidence for that of the jury, Canter v. Koehring Co., La.1973, 283 So.2d 716, and we therefore cannot say the jury’s verdict is not supported by the evidence.

On the argument by the boy’s biological father that the $35,000 award is inadequate, we find no abuse of the jury’s “much discretion”, C.C. 1934(3); Coco v. Winston Ind., Inc., La.1977, 341 So.2d 332.

On the appeal by the boy’s “legal father” (“the husband of the mother”, C.C. 184) and mother from the rejection of their claims, we first note that the mother and her husband had been living separate and apart for nine years at the time of the boy’s birth, and that, from the time the boy was three or four months old (or a year, the mother also testified) he lived with and was raised by not the mother but the biological father and his family.

C.C. 2315 provides, in part,

The survivors in whose favor this right of action [for the decedent’s own non-property damages] survives may also recover the damages which they sustained through the wrongful death of the deceased.

The jury evidently concluded that one having no relationship whatsoever to the decedent other than the fictional position of “legal father”, although by law within the category of beneficiaries with a right of action for damages “which they sustained”, did not sustain any damages by the wrongful death. We affirm this view.

Presumably the jury’s view was identical as to the mother. It is true that the mother, unlike the “legal father”, is more than a fictional parent; she is also a biological parent. Additionally, she did testify that her son saw her “off and on” and had told her “right before he got killed” that he had a job. However, there is no other evidence than her testimony to support a conclusion that the mother had any social relationship whatsoever with her son. The jury presumably concluded that she had not met her burden of proving that she had suffered damages through the wrongful death of her son. We cannot say that this conclusion is unsupported and we therefore must leave it undisturbed; Canter, supra.

(The mother and legal father do not argue for recovery on the basis that the boy’s own entitlement to damages for his suffering prior to death devolves to them rather than to the biological father under C.C. 2315.)

Reversed at plaintiffs’ cost as to Security Insurance Company of Hartford; otherwise affirmed.


author: BEER, Judge.

text:
    STATE of Louisiana in the Interest of Catherine Leah ROTOLO.
    No. 9313.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.

      Reed, Reed, & D’Antonio, Bruce G. Reed, Metairie, for appellant.
    Gauthier & Murphy, Kenner, Patrick J. McCabe, Metairie, for appellee.
    Before GULOTTA, STOULIG and BEER, JJ.
   BEER, Judge.

On April 30, 1976, Henry L. Rotolo, father of five-year-old Catherine Leah Rotolo, filed a petition in the Juvenile Court of the Parish of Jefferson, pursuant to La.R.S. 13:1569(16)(b) and La.R.S. 14:403(C), alleging that Catherine had been abused while in the custody of her mother, Gayle Raymond Rotolo. He supported these contentions with a handwritten note over the signature of Dr. R. J. Sanders, a pediatrician who had examined Catherine on January 5,1976, and concluded: “My impression was child abuse, but received no cooperation from family.”

Apparently determining — without resort to a contradictory proceeding — that there was a sufficiently clear (though ex parte) showing of abuse to warrant immediate action, the Juvenile Court issued a writ of habeas corpus for Catherine and, upon compliance with the writ, granted temporary custody to Mr. Rotolo.

The record shows no further activity up to November 15, 1976, when counsel for Mrs. Rotolo sought an order to fix a hearing date on a rule to show cause why the temporary custody order of April 30, 1976 (discussed above) should not be set aside.

More delay ensued, apparently while the court awaited the filing of a report of investigation by a social worker from the Louisiana Health & Human Resources Administration. Finally, with the report filed as of April 26, 1977, notice went to the parties that the “Rule to Revoke Custody” would be heard on May 12, 1977, in the Juvenile Court.

The record of proceeding of the hearing on May 12th causes us much concern. The fact that this, the first contradictory proceeding in a matter as critical as custody of a child of tender years, took place more than a year after the temporary custody order was signed in an ex parte proceeding is, alone, quite unsatisfactory. But even more disquieting, and the cause of our greatest concern, is that upon a careful reading of the record, we are unconvinced that Catherine’s interests have been fully protected or that sufficient credible evidence was adduced to form a proper and acceptable foundation for adjudication of this sensitive issue — so important to the well being of this child.

The social worker who conducted the investigation finally rendered a report which is of minimal evidentiary value, being based, in large measure, on hearsay. Even so, the report might have formed a satisfactory outline for the subsequent development of admissible evidence in support of a conclusion that Catherine was abused while in her mother’s custody and seem to fare better while in the temporary custody of her father. However, no proof, in the form of credible evidence, was adduced at the hearing to support such a conclusion. We have only the self-serving and totally irreconcilable testimony of the battling parents and their partisans.

It does appear to us that, on the sketchy showing made, we would have been more inclined to conclude that Catherine was abused and that her prospects for further abuse, within the general overall descriptive meaning of the term, were greater while in the custody of her mother than in the custody of her father. Stated another way, we would have been more inclined to the view that Catherine’s best interests would be served by her continuing to be cared for by her paternal grandparents who actually looked after her during the time that her father had temporary custody.

However, the judge who heard and observed the witnesses concluded that the April 30, 1976 order of temporary custody should be revoked and recalled and Catherine returned to her mother.

Though appellants first allegation of error on the part of the Juvenile Court is with respect to insufficient notice of the contradictory hearing, we conclude that his voluntary appearance at the hearing effectively waived any serious objection to service. See: La.R.S. 13:1576(A).

Turning, then, to the merits, we address the issues of what proof is required and who must carry the burden of such proof in a proceeding to adjudicate neglect. In re State ex rel. Thaxton, 220 So.2d 184, 186-187 (La.App. 1st Cir. 1969), gives us helpful guidelines:

“The law in cases such as this is well settled and may be briefly stated thusly: The deprivation of a parent of the custody of his or her child is a harsh proceeding and as here the mother is entitled to their custody unless it is shown by legal and competent evidence that she is morally, mentally, or otherwise unfit or incapable of caring for them, or, that for some other reason, it would be detrimental to the children’s health, safety or welfare to permit them to remain with the mother. In re State in the Interest of Elliott, 206 So.2d 802 (2d La.App., 1968). However, it is also well settled that even the paramount right of a mother to the custody of her children is subject to the authority of the State to deprive her thereof if she is morally, mentally or otherwise unfit or incapable of caring for the children, or if the children’s welfare so requires. State ex rel. Rothrock v. Webber, 245 La. 901, 161 So.2d 759; State ex rel. Brode v. Hatcher, 233 La. 636, 97 So.2d 422; State ex rel. Paul v. Department of Public Welfare, La.App., 170 So.2d 549.
“The burden of proving that a parent is unfit or incapable of caring for a child rests with the State who has in fact and in law interceded in the affairs of the parent for the sake and in the interest of the child. State ex rel. Paul v. Department of Public Welfare, supra.
“In cases involving the custody of children a great deal of discretion is accorded to the trial judge and his decision will not be reversed on appeal except in the clearest case of abuse of such discretion.”

Here we have only a questionable and incomplete description of the actual situation in which Catherine found herself as of May 12, 1977, and absolutely no knowledge of her situation as of this appellate review, over one year after return to her mother’s custody.

Rejection of the abundant hearsay evidence introduced into this record leaves nothing more than the testimony of the parties and their respective friends and/or relatives. In such circumstances, we have little choice but to conclude that no clear cut showing of manifest error has been demonstrated. What appears to be a credibility call favoring the mother’s version brings the case squarely within that area where we are mandated to refrain from substituting our views for those of the trier of facts. Thus, we cannot disturb the result reached by the Juvenile Court, which is, accordingly, affirmed.

AFFIRMED.

      . Unfortunately, the Juvenile Court did not order continuing supervision of the mother s custody pending appeal.


text:
    Josephine C. Pinkham, wife of/and Edward PINKHAM v. SHERWIN WILLIAMS COMPANY et al.
    No. 9322.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.

      Brierre & Malone, J. David Malone, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, Ben C. Toledano, Ralph R. Alexis, III, New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG and BEER, JJ.
   BEER, Judge.

Josephine C. Pinkham filed this damage suit against Sherwin-Williams Company, Irwin A. Kraft, Maryland Casualty Company and the City of New Orleans, contending that she was injured as a result of a fall on the sidewalk adjacent to property owned by Kraft, insured by Maryland and leased to Sherwin-W illiams.

All defendants (appellees here) moved for summary judgment on the basis of allegations made in Pinkham’s petition and Pink-ham’s response to certain questions put to her in the course of a discovery deposition. The motions were granted, Pinkham’s suit was dismissed, and she appeals.

Movers for summary judgment take no issue with Pinkham’s factual contention that she fell at the spot where the sidewalk is uneven. They rely upon the contention that Pinkham has failed to show any causal connection between the unevenness of the sidewalk and her fall. Specifically, when asked if she knew what caused her to fall, she replied: “No, I don’t remember.”

Perhaps more compellingly influential in support of the motion is the showing, on the part of movers, that Pinkham’s deposition testimony obviates her ability to obtain judgment by reason of her acknowledged contributory negligence. In that deposition, she admits her long-term awareness of the uneven condition of the sidewalk — an awareness based on her having traversed this sidewalk to and from work on an almost daily basis for over three years.

Such an acknowledgement of contributory negligence formed the basis for summary judgment in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), U. S. cert. den., 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98, which holding, in our view, is applicable here. Consideration of the record as a whole and, particularly, the deposition testimony of Pinkham leads us to conclude that the trial court did not manifestly err in granting summary judgment, and, accordingly, the judgment of the Civil District Court for the Parish of Orleans is affirmed, at appellant’s cost.

AFFIRMED.


author: STOULIG, Judge.

text:
    THOMAS BUILDERS, INC. v. Mrs. Peggy Worthington WEBB and Dr. James S. Webb.
    No. 9326.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.

      Pittman & Matheny, Iddo Pittman, Jr., Hammond, for plaintiff-appellee.
    Roy L. Price, Metairie, for defendants-appellants.
    Before GULOTTA, STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Thomas Builders, Inc., obtained a judgment of $18,817.43 in a suit for the unpaid balance due for residential construction. Defendants, Dr. and Mrs. James S. Webb, have appealed, urging, as they did in the trial court, plaintiff’s unsatisfactory performance not only cancelled the original contract balance but also created a debt by plaintiff to defendants for the cost of remedying defective workmanship. In addition they reconvened for damages they incurred because plaintiff failed to complete the contract within the time stipulated. Joined as a third party defendant was the contractor’s surety, Fidelity and Deposit Company of Maryland. Judgment was rendered dismissing defendants’ reconventional demand and third party action.

We affirm. Of the contract price with extras totaling $151,546.48, defendants paid $132,729.05, leaving an unpaid balance of $18,817.43. The residence at 400 Hector Street in Metairie was to be completed at the end of May 1973; however, five change orders for extras were entered after construction under the original agreement was in progress. Of these, three were authorized by either the architect, Paul Charbonnet, or Dr. Webb after the May 1973 completion date.

Dr. Webb discharged Charbonnet as his architect sometime after June 1973. Char-bonnet testified that he had no complaints about plaintiff’s performance through the date of his own dismissal from the job, at which time plaintiff had completed 60 to 75 percent of the contract. In removing the architect, Dr. Webb hoped to accelerate the pace of construction that he felt was delayed at that time by friction between the construction superintendent, Carlo Costa, and the architect.

In any event, defendants moved into the residence on September 4,1973 while it was still incomplete. Ten days later they executed a formal acceptance which authorized the bank handling interim financing to release the final partial payment to Thomas (exclusive of the 10-percent retainage and incidental charges withheld until the expiration of the 30-day lien period after acceptance). At the time the acceptance was made the contractor agreed to complete items on a punch list compiled by his representative and Dr. Webb prior to the acceptance. The trial court concluded the contractor made a good faith effort to complete the items enumerated but defendants refused to let plaintiff’s men return to the job.

Appellant’s first complaint is that the trial court erred in disallowing their claim for moving expenses, rental and furniture storage fees occasioned by plaintiff’s failure to complete the work within the time specified. The evidence establishes defendants sanctioned the extension in construction and even expanded the work originally contracted for after the May 31 deadline. No damages are due under these circumstances. See C.C. arts. 1807 and 1811.

The next complaint of error is that the trial court upheld the formal acceptance signed by Dr. and Mrs. Webb on September 13, 1973. In rejecting the argument they were forced to sign in order to have a place to live, the trial judge in verbal reasons cited the facts that militate against this conclusion. We quote:

“The Court finds these facts to be significant. There is no doubt there was some dispute between the parties concerning the work after Mr. Charbonnet left the job. Mr. Charbonnet testified before • he left the job that he had no complaint. The Court finds significant the fact that the house was occupied by the owners on September 4,1973, that an acceptance was signed by both Dr. and Mrs. Webb with a punch list attached, on September 13, 1973, some week after they had moved in. And, further, that the house or, that an extra on the construction contract was billed and paid sometime around October 5th, which was about a month after the occupancy of the house, which was occupied on September 4.”

Appellants next complain the trial court erred in failing to award damages for remedial work; however, the reconventional demand through which they claimed this amount was not proven with that certainty required by law. The plaintiff in reconvention carries the same burden of proof as does the plaintiff in the original cause and that is to establish the claim by a preponderance of the evidence. Rapides Packing Company v. Viking Packing Co., 246 So.2d 725 (La.App. 4th Cir. 1971).

The proof offered in support of the recon-ventional demand was vague and unconvincing. For example, Dr. Webb testified he spent more than $100,000.00 on remedial work and additional construction after plaintiff left the job, without assigning a dollar amount to the alleged corrective work. Paul Charbonnet, the discharged architect who was reemployed by defendants to make an estimate after the dispute between these litigants erupted, stated it would cost $72,521.68 to remedy plaintiff’s defective construction. He failed to give a breakdown of cost and labor in detail but he did mention that painting alone would cost $18,000.00. In view of the fact that this figure was 2Vá times greater than the total amount of the original painting subcontract, the trial court stated it could not accept this figure.

In his reasons for judgment dictated into the record, the trial judge stated:

“The Court has no doubt that there was some corrective work to be done but is unable to arrive at any cost that would be involved in doing this corrective work. As I was saying, Mr. Charbonnet gave the only estimate that was introduced as to cost and, his was a lump sum based on a list that was made by Mrs. Webb. He has no corroboration or he has no detailed breakdown as to what the cost of this work would be from any contractor except one that got in — I don’t know whether I would or would not have let it in; it may have been a proffer, had I realized at the time, but it was a sheet-rock estimate of $5,442 and I note that Counsel for Defendants and Plaintiffs in reconvention did proffer another breakdown of $18,000, roughly, for painting. The Court would note that that is two and a half times as much as was paid for the original painting work on the house. So, it would be beyond the ability of the Court to arrive at an amount that would be due for any corrective work simply because the Plaintiffs have failed to carry the burden of proof as to what the costs of this corrective work may be * *

We fully agree with his analysis of the evidence that some defects did exist but that the defendants failed to prove the costs necessary to correct them and affirm his dismissal of the reconventional demand.

Finally appellant complains the trial court erred in not granting a new trial based on newly discovered evidence. At the trial, Charbonnet, subpoenaed some two weeks before, failed to bring his file on this construction. He testified he had no complaints as to the quality of plaintiff’s workmanship until his discharge in June 1973; however, defendants allege that after the trial the architect discovered letters in his file directed to Thomas Builders in which complaints in construction are outlined for times prior to the June termination. Without commenting on what effect if any these letters would have, we point out that C.C.P. art. 1972 makes the granting of a new trial peremptory when newly discovered evidence becomes available after the trial. However, the applicant must show that even with due diligence it could not have been obtained or produced during the trial. The correspondence in question was available prior to trial and upon discovering that Mr. Charbonnet did not have it physically in his possession, no request for a recess was made in order to produce it.

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

AFFIRMED.

      . The building contract provided for construction of a two-story brick veneer residence containing 12 rooms and three baths for the contract price of $127,571.00. It was executed on September 7, 1972 and had a specified completion date of May 11, 1973. The five change orders for extras were as follows: March 26, 1973, $3,831.80; April 20, 1973, $6,700.00; June 12, 1973, $4,048.24; July 26, 1973, $5,325.67; and October 5, 1973, $4,069.77.


author: GULOTTA, Judge.

text:
    Succession of Hattie Simon, wife of Leonard AUGUSTUS.
    No. 9327.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.

      Scheuermann & Jones, Arthel J. Scheuer-mann, New Orleans, for appellee, Hattie Ewing, Duly Qualified Executrix of the Succession of Hattie Simon, Wife of Leonard Augustus.
    James J. Grevemberg, New Orleans, for appellant, Leonard Augustus.
    Before GULOTTA, STOULIG and BEER, JJ.
   GULOTTA, Judge.

Decedent bequeathed to her husband the usufruct of her separate property under the following conditions:

“ . . . said usufruct to be for his lifetime and to terminate only upon his death or in the event he allows Thelma Poitant Augustus or Cecile Hill to enter this house.”

By way of background, from 1937 to 1946, Leonard Augustus, the usufructuary, lived with decedent, Hattie Simon. In 1946, he married Thelma Poitant; however, shortly thereafter returned to live with decedent. In 1960, while Augustus was still married to Poitant, Simon executed the statutory will containing the conditions upon which the usufruct terminated. In 1968, Augustus divorced Poitant and married Simon, with whom he lived until her death in 1969. In 1971, Augustus remarried Poitant and they lived in the house upon which Augustus enjoyed a conditional usu-fruct.

The trial judge, pursuant to a rule brought by the executrix for termination of the usufruct, made the rule absolute and ordered Augustus to vacate the premises.

The legatee, Augustus, appeals. We affirm.

It is not disputed that Poitant lived in the premises with Augustus subsequent to the testator’s death. Augustus seeks to set aside the condition terminating the usu-fruct on the ground that the condition is against public policy and contra bonos mores. The testamentary usufructuary relies on LSA-C.C. art. 1527 which provides:

Art. 1527. Charges or conditions imposed by donor
“Art. 1527. The donor may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals.”

Citing dicta in Succession of Ruxton, 226 La. 1088, 78 So.2d 183 (1955) and French Commentators (Aubry and Rau) in Civil Law Translations, Vol. 3, § 692, at page 290, Augustus claims that the condition for termination of the usufruct is a restriction of the legatee’s right to remarry and is therefore contrary to law and against good morals.

In the first place, the condition places no restriction on the legatee’s right to remarry. If, as contended by the legatee, the bequest does place such a restriction, we find no merit to his contention.

LSA-C.C. art. 542 provides:

Art. 542. Absolute or conditional establishment of usufruct
“Art. 542. Usufruct may be established simply, or to take place at a certain day, or under condition; in a word, under all such modifications as the person who gives such a right may be pleased to annex to it.”
Further, LSA-C.C. art. 1712 provides: Art. 1712. Intention of testator
“Art. 1712. In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.”

In Succession of Ruxton, supra, the holding of the court was that a condition in a bequest based on the legatee’s being unmarried at the time of testator’s death is not contrary to good morals or public policy. Also, bequests in restraint of a second marriage are not opposed to the public policy of this state. See Labarre v. Hopkins, 10 La. Ann. 466 (1855). See also LSA-C.C. art. 916, the legal usufruct article, providing the usufruct shall cease upon remarriage.

Although we conclude, in addressing legatee’s argument, that a condition contained in the will terminating the usu-fruct upon the legatee’s remarriage is not contra bonos mores, we point out that we do not interpret the condition in the will in our case to restrict or prohibit the legatee’s right to remarry. The condition merely prohibits Thelma Poitant from entering decedent’s separate property. We fail to find this condition either violative of law or against good morals.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . The court, in dicta, said:
      “ . . . but conceding, without deciding, that a legacy conditioned upon the legatee remaining unmarried is against the public policy of this State . .

      . Other persuasive Codal provisions are LSA-C.C. arts. 608 and 610.


text:
    Joseph Francis VITARI, Jr. v. Samuel LEWIS, Jr. and Allstate Insurance Company.
    No. 9339.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.

      Steven R. Plotkin, New Orleans, Martin L. Broussard, Jr., Metairie, for plaintiff-ap-pellee.
    Porteous, Toledano, Hainkel & Johnson, E. Ross Buckley, Jr., New Orleans, for defendant-appellant, Allstate Insurance Co.
    Before GULOTTA, STOULIG and BEER, JJ.
   GULOTTA, Judge.

Plaintiff, injured in a “head-on” collision on April 24,1976, on Lakeshore Drive in the City of New Orleans, was granted a $2,000.00 jury award.

The suit was directed against plaintiff’s insurer under the uninsured motorist provision and against the driver of the offending vehicle. A preliminary default was entered against the driver and the matter proceeded to trial against the insurer.

At trial, after plaintiff and his treating physician’s testimony were heard and the police report of the accident was stipulated into evidence, plaintiff rested his case. Defendant thereupon moved for a directed verdict (in accordance with LSA-C.C.P. art. 1810 enacted in 1977) on the grounds that plaintiff had failed: 1) to show insurance coverage; 2) to establish the uninsured status of the tortfeasor; and 3) to prove negligence on the part of the other driver. Following the filing of this motion, plaintiff sought leave to reopen the matter to testify regarding his own uninsured motorist insurance coverage and to introduce into evidence an affidavit from the Casualty and Surety Division attesting to the fact that the defendant driver was uninsured at the time of the accident. The trial court permitted the case to be reopened; the affidavit was introduced; and plaintiff testified relative to his insurance coverage. The matter was then submitted to the jury resulting in a $2,000.00 award. Samuel Lewis, defendant driver, was not present and did not testify.

Defendant, appealing, claims the trial judge abused his discretion in allowing plaintiff to reopen the matter and erred in failing to grant defendant’s motion for a directed verdict. Defendant complains also the trial judge erred when he gave a charge to the jury “that the testimony of the plaintiff and plaintiff’s witnesses shall be taken as true unless the defendant is able to rebut or contradict such testimony with other evidence”. In this connection, the insurer argues the police report' indicating defective steering on the Lewis vehicle and plaintiff’s testimony that Lewis told him of the defect constitute “unrefuted evidence that the accident was caused as a result of mechanical failure” and not negligence on the part of the defendant driver. Finally, defendant claims the award is excessive.

The rule is well established that a decision by the trial judge to reopen a matter for introduction of further evidence after the parties have rested is within the sound discretion of that judge. See LSA—C.C.P. arts. 1631, 1632; Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970); Bradford v. Brewton Butane Company, Inc., 319 So.2d 892 (La.App. 3d Cir. 1975). In Dupre v. Hartford Accident & Indemnity Company, 200 So.2d 753 (La.App. 3d Cir. 1967), cited by plaintiff, reopening for the introduction of evidence of the tortfeasor’s lack of insurance coverage was held not to be an abuse of discretion. In the instant case, it is clear that plaintiff, at the time of trial, had possession of the affidavit of the defendant driver’s non-insured status but inadvertently failed to introduce it and to testify regarding his own uninsured motorist coverage. The trial judge, in permitting the matter to be reopened, stated that he was exercising his discretion “in order to do justice and equity in the matter”. The circumstances considered, we cannot say the action of the trial judge is an abuse of discretion.

On the question of the evidence relating to Lewis’s negligence, our examination of the record leads us to conclude that a prima facie case was made out by plaintiff by his uncontradicted testimony that the Lewis vehicle violated plaintiff’s lane of travel and struck plaintiff’s vehicle head on in plaintiff’s lane of the two-way street. Plaintiff’s testimony was:

“ * * * He wasn’t going too fast, maybe twenty miles an hour and when he got within twenty yards or so of me I saw him swing over into my lane and I put on my brakes and when I saw him coming straight to me I blew my horn and I believe even stopped. He just plowed right into my front and I was far over. I couldn’t jump the curb because I was right up against it.”

Also supportive of plaintiff’s claim of Lewis’s negligence is the police report (stipulated into evidence) which indicates the head-on collision occurred in plaintiff’s lane of travel.

When, as in the instant case, pri-ma facie evidence establishes that the offending driver violated plaintiff’s lane of travel, it becomes defendant’s burden to exculpate himself from any fault, however slight, contributing to the collision. See Simon v. Ford Motor Company, on rehearing, 282 So.2d 126 (La.1973); Johnigan v. State Farm Mutual Automobile Insurance Company, 345 So.2d 1277 (La.App. 3d Cir. 1977). It is also clear that a defendant relying on a latent defect in his vehicle to exculpate himself must produce more evidence than his own uncorroborated testimony. Simon v. Ford Motor Company, supra. In the instant case, the only evidence of the steering failure is the notation in the police report of Lewis’s uncorroborated statement to the police officer. Under the circumstances, we find no error in the charge complained of by defendant which was given as follows:

“I charge you that once a plaintiff has presented a prima facie case it is up to the defendant to rebut the witnesses’ evidence as presented if they can.
“Practically this means that the testimony of the plaintiff and plaintiff’s witnesses shall be taken as true unless the defendant is able to rebut or contradict such testimony with other evidence.”

In addition, we point out that no specific objection was made by defendant to the charge. In Caldwell v. Parker, 340 So.2d 695 (La.App. 4th Cir. 1976), writ denied, 342 So.2d 1120 (La.1977), we held that where no specific objection was made to a charge at the time the charge was given, a complaint on appeal has been waived. A blanket objection such as:

“I will object to all of the charges that were given.”

as made by defendant in this case will not suffice. See LSA-C.C.P. art. 1793.

Although no medical bills were offered into evidence, plaintiff testified that he suffered shoulder, leg and knee injuries for approximately a three-week period. In addition, he stated that he had been emotionally upset and aggravated as a result of the accident. It is true, as pointed out by the internist who testified, that a subsequent heart attack which occurred approximately one month after the accident, was not accident-related. Although we deem the $2,000.00 jury award to be generous, we cannot say the award is an abuse of the jury’s discretion. The judgment is affirmed.

AFFIRMED.

      . LSA-C.C.P. art. 1810 provides:
      Art. 1810. Directed verdicts
      “A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”


text:
    Robert N. MALANDERS v. AVONDALE SHIPYARDS, INC., XYZ Insurance Company, El Paso Natural Gas Company and ABC Insurance Company.
    No. 9728.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.
    Windhorst, Heisler, DeLaup & Wysocki, James A. Wysocki, Steven M. Koenig, New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, New Orleans, for defendant-appellee, Avondale Shipyards, Inc.
    Before GULOTTA, STOULIG and BEER, JJ.
   ON MOTION TO DISMISS

GULOTTA, Judge.

On defendant’s motion, we dismiss plaintiff’s appeal. Trial in the district court was held on October 5, 1977 and judgment was rendered on October 7, 1977. No notice of judgment was mailed nor was an application for new trial filed. A petition for appeal was filed on November 8, 1977 and signed on November 10, 1977. The bond was filed on June 1, 1978 and costs were paid on June 29, 1978.

Assuming but not deciding that a notice of judgment was required under LSA-C. C.P. art. 1913, the delays for perfecting the appeal began the day the order was signed granting the devolutive appeal, and a bond filed in excess of six months subsequent to the granting of the appeal is untimely. See LSA-C.C.P. art. 2087.

Accordingly, the appeal is dismissed.

APPEAL DISMISSED.

      . See Carlisle v. Carlisle, 313 So.2d 908 (La.App. 2d Cir. 1975), writ denied, 319 So.2d 442 (La. 1975).

      . We distinguish Bacmonila Garden Apartment, Inc. v. Williams, 355 So.2d 288 (La.App. 4th Cir. 1978) which held no devolutive appeal bond is required when costs are paid within the delays for perfecting the appeal. In the instant case, costs were paid after the delays had elapsed.