author: ELLIS, Judge:

text:
    J. J. McKERNAN and Keith D. Jones v. Thomas L. WATSON.
    No. 14384.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Keith D. Jones, in pro. per.
    Frank J. Saia, Baton Rouge, for defendant-appellant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

This is a suit for an attorneys’ fee. Plaintiffs J. J. MeKernan and Keith D. Jones were consulted by Thomas L. Watson, who had been arrested and charged with armed robbery. Mr. Watson testified that he was told a fee of $5,000.00 would be charged for the representation. Plaintiffs represented defendant Watson through arraignment and the preliminary hearing, and filed a couple of discovery motions.

The charge against Mr. Watson was reduced to simple robbery by the district.attorney. However, the assistant district attorney who was handling the case testified that, had the case gone the trial, he would have upped the charge to armed robbery.

Eventually, defendant discharged plaintiffs and retained another attorney. He paid nothing to plaintiffs. This suit was filed for $2,500.00, alleging that the contract between the parties was for $5,000.00, but, because plaintiffs did not handle the matter through trial, they were demanding only half of the original fee.

From the testimony in the record it would appear that plaintiffs spent about five hours in office and courtroom time on defendant’s case. There is testimony in the case that $5,000.00 is a reasonable fee for the defense of an armed robbery case, and that the fee is not based solely on the amount of time spent on the defense, although it is a consideration. Other factors involved are the seriousness of the charge and the degree of expertise required in handling the case.

The trial judge felt that plaintiffs were entitled to recover the sum of $2,500.00 and signed a judgment accordingly. Defendant has appealed, and argues in this court that plaintiffs are entitled to be compensated on a basis of quantum meruit based, on the amount of time spent on the case, and that the award made is excessive.

Under the above circumstances, we find no error in the result reached by the trial judge. Considering the amount of time spent on the case, the seriousness of the charge, the diligence and skill of the representation afforded defendant and the degree of expertise involved in the case, we think the trial judge correctly resolved the issue before her. See Barranger, Barranger and Jones v. Cromp, 286 So.2d 474 (La.App. 1st Cir. 1973), writs denied 288 So.2d 647 (La.1974). Fiasconaro & Fiasconaro v. Orlando, 342 So.2d 1261 (La.App. 4th Cir. 1977).

The judgment appealed from is therefore affirmed at defendant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Gregory PORTIS v. DEPARTMENT OF CORRECTIONS, HUNT CORRECTIONAL CENTER.
    No. 14403.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Benn Hamilton, Staff Atty., Capital Area Legal Services Corp., Baton Rouge, for appellant.
    Annette R. Seng, Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for appellee.

      Laura Denson Holmes, Civ. Services Legal Counsel, Dept, of State Civ. Service, Baton Rouge, for George Hamner, Director of the Department of State Civil Service.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented in this Civil Service Commission appeal is whether or not the appointing authority carried its burden of proof in showing there was legal cause for appellant’s dismissal. An examination of the record reveals the Commission did not err in concluding legal cause existed for the dismissal; therefore, we affirm.

Appellant was employed as a Correctional Officer II at Hunt Correctional Institute. On August 1, 1979, the incident giving rise to this litigation occurred. Appellant was assigned to the gymnasium area where he was supervising a work crew of inmates. Sergeant Alfred Robinson and Lieutenant Jessie Dauzart entered the gym in order to make final preparations for a boxing match which was to take place later that day. Sergeant Robinson was smoking a cigarette, in violation of the rules. Appellant approached Robinson and informed him smoking was not allowed in the gym. Robinson agreed to extinguish the cigarette and began to do so when appellant became very angry and continued to rant about the violation of the rule. Lieutenant Dauzart, concerned that a confrontation would take place in view of the nearby inmates, assured appellant the matter was settled and that he, Dauzart, would take care of Robinson and the cigarette. When appellant pressed the issue, Dauzart reassured him that Robinson was extinguishing the cigarette and told him to go back to his job. Appellant continued to argue about the cigarette and informed Dauzart he had been speaking to Robinson rather than to Dau-zart. Dauzart again ordered appellant to return to his job. Appellant testified that Lieutenant Dauzart insulted him with racial slurs. Dauzart denied making such comments and Robinson testified he heard no such remarks.

When appellant walked away from Dau-zart and Robinson he went to the gym office and telephoned Major Edward Boeker, the shift supervisor. Boeker said he would come investigate the matter and all parties involved in the dispute met Major Boeker outside the gym. Boeker testified appellant stated he was going to “jump Dauzart” if Dauzart did not leave him alone. It is evident all parties were in an agitated state. Boeker instructed appellant to go to the “K building” while Boeker discussed the matter with Robinson and Dauzart. Appellant was then allowed to return to the gym where he and Dauzart again began to argue. Dauzart testified he simply wanted to explain to appellant the reason for his interference, i.e., that he wanted to preclude any confrontations in front of the inmates. Appellant testified he tried to explain his side of the story to Dauzart but was met with more racial slurs. Dauzart testified appellant became extremely angry and clenched his fists as if ready to fight. A co-employee, Joseph Tul-lier, interceded and attempted to calm appellant. Major Boeker then reassigned appellant to a dormitory for the remainder of the shift.

That night appellant went to Boeker’s officer and told him he wanted to file a disciplinary report on Dauzart. Appellant prepared a report and submitted it to Boeker. The next day Boeker asked for reports from Dauzart, Robinson and Tullier. Based upon these reports, his personal knowledge of the event, and information provided by inmates who had witnessed the incident, Boeker recommended Portis be terminated from his employment. On August 3, 1979, appellant received a letter informing him of his suspension pending his termination. Appellant filed a notice of appeal on August 15,1979, complaining of his suspension. By an undated letter appellant was informed he was terminated from his employment effective August 18, 1979.

A hearing was held before the Commission and the Commission ruled appellant had created the disturbance in the gym. The Commission also concluded appellant had failed to obey a direct order of a superi- or officer by remaining where he was and continuing to argue about the cigarette when Lieutenant Dauzart had instructed him to drop the matter and go back to his job. Therefore, the Commission denied the appeal of the suspension. Appellant then filed this appeal.

It is well settled a permanent classified civil service employee may be dismissed for cause if the conduct complained of impairs the efficiency of public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Stiles v. Dept. of Pub. Saf., Drivers’ Lic. Div., 361 So.2d 267 (La.App. 1st Cir. 1978); Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (La.1962). However, the mere fact that such employee has disagreements with co-employees or with superiors does not subject the employee to disciplinary action unless it is shown that such conduct produces results detrimental or prejudicial to the efficiency of the public service. Stiles, supra; Brickman v. New Orleans Aviation Board, 236 La. 143, 107 So.2d 422 (La.1958).

We have no difficulty in concluding that appellant’s behavior in causing the disturbance, in continuing to argue about the matter, and disobeying the direct order of his superior to drop the matter and return to his job, did indeed impair the “efficient and orderly operation of the public service in which the employee is engaged.” Appellant was a correctional officer whose primary duty was to supervise the inmates and see that order and good conduct were maintained. His performance was severely impaired when he instituted the argument and then devoted his undivided attention to solving his personal problems rather than to supervising the inmates as he should have been doing. It is highly inappropriate and detrimental to the overall objectives of a correctional institution for an employee to become belligerent and to disobey the order of his superior in the presence of the inmates. We are in complete agreement with the observation made by the Commission in its opinion, which reads as follows:

“For a correctional institution to function, the inmates must recognize and yield to the authority of the correctional officers. This concept of authority is undermined when a correctional officer refuses to submit to the authority of a superior officer.”

Even in cases involving institutions other than correctional institutions this court has recognized that respect for one’s superiors and obedience to lawful orders and directives of those in charge are essential to the efficient operation of the institution. Hamilton v. La. Health & Human Resources Adm’n, 341 So.2d 1190 (La.App. 1st Cir. 1976), writ denied 1977. In Hamilton an employee of an institution for the mentally retarded arbitrarily refused to bag linens as she was instructed. We confirmed the Commission’s finding that this unjustified refusal to follow instructions constituted grounds for her dismissal.

For the foregoing reasons, the decision of the Commission is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . Appellant was ranked as a sergeant.

      . Robinson and Portis are black. Dauzart is white.

      . Mr. Portis did not file an appeal to the termination.


author: BARRY, Judge.

text:
    CORINNE PARK CIVIC ASSOCIATION, George W. Martin, N. P. McCrimmon, Ronald J. Juneau, Joseph W. Juneau, Lawrence Brown, William L. Dunlap, Claiborne T. Baye, Herbert R. Buras, and James L. Guarino v. The POLICE JURY OF the PARISH OF ST. BERNARD, Bertrand Odinet, Roy Gonzales, Peter Perniciaro, Louis Munster, John Metzler, Nick Cusimano, Claude Mumphrey, Celestine Melerine, Scott Molero, and Roland J. Bergeron, Thomas Reed, Parish Engineer, and Angelo Chetta, in His Capacity as Director-Secretary of the St. Bernard Parish Planning Commission.
    No. 12107.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 1981.
    Rehearing Denied Dec. 18, 1981.
    Writ Granted Feb. 19, 1982.
    William J. Dutel, Russell J. Nunez, Jr., New Orleans, for plaintiffs-appellants.
    Marcel Gueniot, Chalmette, for defendants-appellees.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

This appeal is from a judgment which held that the St. Bernard Parish Police Jury was not responsible for maintenance of a canal which caused property damage.

Plaintiffs are a civic association and property owners in Corinne Park Subdivision and Corinne Park Extension Number Two situated in St. Bernard Parish. They sued the parish police jury for damages to their homes which allegedly occurred from periodic overflowing of the Kierr Canal allegedly due to lack of maintenance. Following a pre-trial conference the litigants stipulated the following contested issues of law for determination:

1. Is the St. Bernard Parish Police Jury charged with the responsibility for the operation, maintenance and control of the Kierr Canal?
2. By the Act of Dedication of the drainage canal to the Parish of St. Bernard, the approval of the plans for road and drainage for Corinne Park by the Parish engineer, and acceptance of the off-site improvements by St. Bernard Parish, did the Police Jury accept responsibility for the maintenance and control of the Kierr Canal?
3. Was the Police Jury’s action in widening the Kierr Canal in 1974, the periodic cleaning out of the Canal, and the installation of drainage pipe, evidence of the Police Jury’s assumption of responsibility for maintenance, operation and control of the Canal?
4. By the performance of the work set forth in (3) above, is the Police Jury estopped from denying responsibility for maintenance and operation of the Canal?
5. Does the Police Jury have a duty to maintain the Canal so as to facilitate the flow of drainage through the Corinne Park Subdivision and Corinne Park Extension Number Two?

The District Court dismissed plaintiffs’ lawsuit holding that the legislature vested responsibility for drainage in St. Bernard Parish to the Lake Borgne Basin Levee District and that the St. Bernard Parish Police Jury did not expressly or tacitly accept responsibility for operation, maintenance, and control of the Kierr Canal.

A survey of Corinne Park Subdivision refers to a “proposed canal” and was accepted by the Parish engineer on June 22, 1952. Also in the record is a drainage design plan specifically for Corinne Park that refers to the canal as “outfall canal” and was approved by the Parish engineer. The road design plan for the subdivision includes a servitude for an outfall canal measuring 20.83 feet which was also approved by the Parish engineer on June 20,1953. It is uncontested that the canal in the survey, drainage and road design plans refers to the Kierr Canal.

Developers of the subdivision, by Act of Dedication on August 24, 1954, dedicated the Canal to St. Bernard Parish. On November 5, 1957 the St. Bernard Parish Police Jury by resolution accepted “... the off-site improvements from the St. Bernard Highway No. 1 (State Highway No. 39) to Claiborne Avenue for public use and perpetual maintenance; the said off-site improvements consisting of the concrete street known as Corinne Avenue from St. Bernard Highway No. 1 (State Highway No. 39) to Claiborne Avenue, and the concrete gutter bottom extensions, concrete curbing, and also the drainage system thereof, including catch basins and drainage lines.”

The Kierr Canal extends from St. Bernard Highway to the 20-Arpent Canal. Water flows from the streets into the drainage lines and through the pipes into the Canal which drains into the 20-Arpent Canal. From the maps, surveys, plans, and documents in evidence, it appears the Kierr Canal is an integral and essential part of the drainage system in the subdivision.

The Police Jury points out that responsibility for drainage in St. Bernard Parish is vested in the Lake Borgne Basin Levee District under the provisions of LSA-R.S. 38:1076(D) and LSA-R.S. 38:113 and that it has never exercised its discretionary authority under LSA-R.S. 33:1236(13). Further, the Police Jury argues that its November 5, 1957 resolution accepting the “drainage system” excluded the Kierr Canal since it was not expressly included.

On several occasions the Police Jury employed persons to clean out or perform other work on the Kierr Canal. In 1974 the Police Jury contracted for mucking and cleaning and on December 1, 1978 contracted for installation of culverts and catch basins. Depositions of Parish employees reveal that the Police Jury was aware of the drainage and flooding problems which developed from erosion, silt buildup in culverts, and loss of soil from rear yards.

We agree with the District Court that the Levee District has the primary responsibility for drainage in St. Bernard Parish and that the Police Jury has the authority to maintain drainage canals if they elect to do so. In very well prepared reasons for judgment the District Judge refers to the Act of Dedication and Police Jury resolution accepting the off-site improvements and concludes:

“It is readily apparent that the Police Jury did not accept the act of dedication of the proposed drainage canal. The resolution specifically states what the Police Jury was accepting and the fact that the canal was not mentioned, particularly in the light of the Act of Dedication, is a clear expression of their intention not to accept responsibility of the canal.” (emphasis in original)

We disagree and feel the language and intent of the resolution is clear and unambiguous in its resolve:

“THEREFORE BE IT RESOLVED, that the Police Jury of the Parish of St. Bernard accepts the off-site improvements from the St. Bernard Highway No. 1 (State Highway No. 39) to Claiborne Avenue for public use and perpetual maintenance; the said off-site improvements consisting of the concrete street known as Corinne Avenue from St. Bernard Highway No. 1 (State Highway No. 39) to Claiborne Avenue, and the concrete gutter bottom extensions, concrete curbing, and also the drainage system thereof, including catch basins and drainage lines.” (emphasis supplied)

We fail to see how this language can exclude the Kierr Canal when it is an integral part of the drainage system without which there would be no water flow and drainage in the subdivision. The fact that the Canal was not mentioned by name is immaterial because of its primary and essential function in the drainage system. The Police Jury had no reason to include the “drainage system” in its resolution if it only intended to accept the catch basins and drainage lines.

Once the Police Jury elected to assume responsibility of the Kierr Canal it had the duty to provide proper maintenance to insure the normal flow of drainage through Corinne Park and is liable for failing to do so.

A stipulation was signed by the parties which stated that the issue of liability had been submitted to tb Court, and if the defendants were case m judgment each plaintiffs’ recovery was specified.

Accordingly, the judgment of the District Court is hereby reversed and set aside and judgment is now entered in favor of the plaintiffs and against the defendant, in soli-do, in the following amounts:

Mrs. N. P. McCrim-mon $ 350.00
Joseph Juneau 785.00
Lawrence Brown 60.00
William Dunlap 300.00
Claiborne T. Baye 700.00
George Martin 325.00
Herbert Buras 330.00
Mr. & Mrs. James Guarino 2,100.00
Harold Bonck 1,100.00

Legal interest is due to each plaintiff from judicial demand until paid.

Costs of this appeal are assessed against the St. Bernard Parish Police Jury subject to limitation by law.

REVERSED AND RENDERED.

      . By Act 237 of 1948 the Chalmette Back Levee District had primary responsibility for drainage in St. Bernard Parish until 1964 when it was consolidated into the Lake Borgne Basin Levee District.

      . The Levee District passed a resolution on February 19, 1974 asserting that it had no responsibility for the Kierr Canal based upon a study by the Louisiana Department of Public Works.

      . LSA-R.S. 38:1076. General powers and duties of board
      * * * * * *
      D. The board shall be invested with the control of all public levees, back levees and levee drainage structures and all operating equipment in the district, with authority to require the Department of Public Works to lay out, furnish estimates, and perform all engineering work necessary to the location, construction and repairs of the levees and levee drainage, reserving, however, the right to the parishes in which the levees are located, also to provide funds and to construct and repair levees and levee drainage and exercise the powers now granted to them by law.
      ******

      . LSA-R.S. 38:113. Control of drainage channels in levee and drainage districts
      The various levee and drainage districts shall have control over all public drainage channels within the limits of their districts and for a space of one hundred feet on each side of the channel, selected by the district and recommended and approved by the Department of Public Works, whether the drainage channels have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels, and may adopt rules and regulations for preserving the efficiency of the drainage channels.

      . LSA-R.S. 33:1236. Powers of police jury The police juries shall have the following powers:
      * * * * * *
      (13) To construct and maintain drainage, drainage ditches, and drainage canals; to open any and all drains which they may deem necessary and to do and perform all work in connection therewith; to cut and open new drains, ditches and canals, to acquire lands for necessary public purposes, including rights of way, canals and ditches by expropriation, purchase, prescription or by donation; to enter into contracts for the construction of such drainage works, and to purchase machinery and have the work performed under their own supervision; to allocate, use and expend the general alimony of the parish for any of the above purposes; to incur debt and issue bonds for drainage and drainage canals in the manner provided for by Subtitle II of Title 39; and use such other funds as may be legally expended for such purposes; to levy taxes for the maintenance of said drainage works in the manner provided for and under the authority of Article X, Section 10 of the Constitution of the State of Louisiana, as amended, and to construct any works and do any and all things necessary to effect proper drainage and carry this Paragraph into effect; to enter into contracts or agreements, under such terms and conditions as may be mutually agreeable with the State of Louisiana, through the Department of Public Works for the securing of State aid for the purposes herein authorized; ... They may perform all other acts necessary to fully drain all the land in their respective parishes and maintain such drainage when established. This Paragraph is intended to furnish additional means whereby parishes in the State of Louisiana may accomplish the objects and purposes herein referred to, and shall be liberally interpreted.


author: CULPEPPER, Judge.

text:
    SUCCESSION OF Henry J. SPANN. Dorma Fay Harris SPANN, Plaintiff and Appellee v. Henry and Mildred SPANN, Defendants and Appellants.
    No. 8446.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.
    Writ Denied Feb. 19, 1982.
    Hal J. Scott, Jonesville, for defendants & appellants.

      Charles F. Wagner, Pineville, for plaintiff & appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CULPEPPER, Judge.

The opponents, mother and father of the decedent, have taken a suspensive appeal from an order obtained by the administra-trix, surviving spouse of the decedent, authorizing a public sale of a home which is the separate property of the succession.

The parties stipulated the legal issues are:

(1) Does the administratrix have the right to sell the succession property under the circumstances of this case? (2) Is the formula to be used, for determining the value to which the administratrix is entitled as a creditor of the separate estate of the decedent, based upon the enhanced value of the real property involved or the actual input into the property in terms of labor and money? (3) To what percentage of the estate is the surviving spouse entitled? This Court will only decide the first enumerated issue, because the order complained of only authorizes a public sale of certain immovable property. It does not make any determination as to what amount the administratrix is entitled as creditor or the percentage of the estate to which she is entitled.

The parties stipulated the facts. Pertinent to our decision are the following: The defendant, Henry Jefferson Spann, died on July 16,1980. He was survived by his wife, Dorma Faye Harris Spann, and his parents, Henry Owen Spann and Mildred Alberta Spann. Dorma Faye Harris Spann was appointed administratrix of her husband’s succession on September 8, 1980. The principal item of succession property is the family home. There are also a few items of movable property.

The family home was constructed by the decedent and his surviving spouse, with the assistance of friends and family, on a lot which was separate property of the decedent, having been donated to him individually by his parents. The administratrix first petitioned the court for authorization of a private sale of the property for $38,500 offered by a Mr. Moore, to pay the debts of the succession, but this petition was not granted. The major debt of the succession is that owed to the surviving spouse for the use of community property, labor or industry to improve the decedent’s separate property. Since the community terminated on the death of the husband on July 16, 1980, the new Matrimonial Regimes law, which took effect on January 1, 1980, probably applies. See LSA-C.C. Articles 2325, et seq., particularly Articles 2366 and 2368 which provide for reimbursement to the surviving spouse for community property, labor or industry used to improve separate property. But these issues are not now before us.

The administratrix then filed a petition for a public sale of the property. On December 10,1980, the trial court ordered that the property be sold at a public auction for a minimum price of $38,500. On January 9, 1981, decedent’s parents appealed the December 10,1980 judgment ordering a public sale. This is the only judgment before us on appeal.

The parents contend a public sale is not in the best interest of the succession because they have offered to pay whatever amount is owed by the succession to the administratrix. However, the record shows the debt owed to the administratrix is substantial. The house constructed during the community clearly benefited the decedent’s separate property. Whether the prior law, LSA-C.C. Article 2408, or the new Articles 2366 and 2368 apply, the property must be sold to pay the debt owed to the surviving spouse.

A trial court may authorize a public sale of succession property upon application of the administratrix for any purpose, and such an order is a final, appealable judgment. Succession of Voland, 296 So.2d 406 (La.App. 4th Cir. 1974), writ denied 300 So.2d 184 (La. 1974); LSA-C.C.P. Articles 3261 and 3271.

There is no dispute as to the minimum price of $38,500 fixed in the order for public sale. The opponents-appellants have shown no irregularity in the procedure concerning the sale. A public sale may produce more than the $38,500 offered for a private sale. If the parents who oppose the sale wish to retain the property, they can bid at the public sale. In effect, what the parents are asking is that they be given the right of first refusal, to the possible detriment of the succession and its ability to pay its debts. It is noteworthy that the parents have not offered to pay $38,500 in a private sale. Apparently, they are not willing to pay that much.

We conclude the trial judge did not abuse his discretion in ordering the property sold at a public auction for not less than $38,500. See Duplechin v. Duplechin, 248 So.2d 631 (La.App. 3rd Cir. 1971).

For the above and foregoing reasons, the order of the trial court authorizing a public sale of the property is affirmed. All costs of this appeal are assessed against the opponents-appellants.

AFFIRMED.


author: CUTRER, Judge. CULPEPPER, Judge,

text:
    W. R. ROGERS, Plaintiff-Appellee, v. NELSON DODGE, INC. and Chrysler Corporation, Defendants-Appellants.
    No. 8474.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.

      Collings & Codings, R. William Codings, Lake Charles, for defendants-appellants.
    Camp, Carmouche, Palmer, Barsh & Hunter, Wade N. Kelly, Lake Charles, for plaintiff-appellee.
    Jones, Patín, Tete, Nolen & Hanchey, Kenneth Spears, Lake Charles, for defendant-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

This is a suit to recover damages for a breach of a contract to repair a motor home.

The facts presented in this case are: On September 15, 1978, W. R. Rogers purchased a used 23 foot Dodge Motor Home from Tracey Cooper for the sale price of $14,500.00, of which $1,500.00 was paid and the remainder financed through Lakeside National Bank of Lake Charles at $244.95 per month for seven years. Including finance charges, Rogers would pay over $20,-000.00 for the motor home. This vehicle, at the time of purchase, had 3,500 miles on the odometer and by the date of trial, December 10, 1980, the mileage was 11,500 miles.

During the first week after purchase Rogers took the motor home to defendant, Nelson Dodge, Inc. (Nelson), who was the factory authorized service center for Dodge-Chrysler products, complaining of engine noise and a loss of power steering. Service personnel at Nelson stated that they did not service such vehicles. A mechanic stated, however, that the noise sounded like a loose belt and he tightened it for Rogers. Rogers then drove the motor home to New Orleans and, in the process, discovered that the suspension sagged. He returned the motor home to Nelson on September 26, 1978, but was again told that Nelson did not work on these vehicles. Rogers continued to use the motor home even though the problems existed. On October 6, 1978, Rogers made a trip to Houston, Texas and experienced a loss of power and a squealing noise in the engine. He returned again to Nelson for help on October 9th but was refused.

Rogers parked the motor home in his driveway from October 9 to December 13, 1978. He again returned to Nelson hoping to have the motor home certified as fully operational for use in the up-coming swim season in which his son participated with the Y.M.C.A. One of the reasons for the purchase was that he wanted to avoid hotel/motel expenses as the family participated in various activities. Nelson again refused to check the motor home. On January 6, 1979, Rogers and family attended a swim meet in Baton Rouge. On this journey he experienced again the same loss of power and, upon return to Lake Charles, took the motor home to Nelson on January 10, 1979 where he was met with the same refusal.

The motor home was not used again until February 23,1979. At that time, the motor home stalled in Lake Charles and Rogers was unable to start it. He telephoned Nelson who towed the motor home to their shop on February 27, 1979. Nelson disassembled the engine to ascertain the problem. The testimony indicates that a valve problem existed which Nelson contended it repaired. The engine was reassembled and turned over to Rogers on March 15, 1979.

While enroute home Rogers noticed there was no oil pressure registering on the dash board gauge. He called Nelson who sent out a wrecker on March 16th to return the motor home to the shop. Nelson replaced the oil pump and the motor home was returned to Rogers two weeks later.

Rogers then took a trip to Alexandria on Easter Sunday, April 15th. He experienced a noise in the engine and returned the vehicle on April 17th and 19th for inspection. On April 19th a mechanic informed him that the noise sounded like an engine knock but the service manager assured Rogers that he would be able to make a trip to Houston that Rogers had planned. Rogers did so on April 19th. Upon his return he experienced loud noises and a loss of power, necessitating driving at 15-20 miles per hour from Beaumont to Lake Charles. He returned the motor home to Nelson on April 23, 1979.

Nelson then kept the motor home for more than three months. Rogers was told the problem was due to the main bearings having been installed incorrectly in the engine. Testimony by one of Nelson’s mechanics indicated that the problem may have been due to the engine being started without it having been filled with oil at the time it was torn down for inspection February 27 through March 15, 1979.

To remedy the problems Nelson decided to make some major changes in the.engine. Chrysler Corporation furnished a short block to Rogers for customer relations purposes and Nelson installed it. The installation of the short block evolved into a reduction of the size of the engine from 440 cubic inches to 360 cubic inches. A dispute over who was to pay for labor arose and Rogers paid a $1,001.55 labor charge under protest so he could regain possession of his motor home. Rogers got delivery of the motor home on July 16th. On this date he and a mechanic made a test drive and the vehicle’s alternator indicator discharged due to improperly installed wiring. The motor home was then returned and picked up again on July 26th.

On July 27th, Rogers and his family attended a swim meet in Alexandria. On this trip he experienced unstable handling and extremely poor performance. He found the rear left springs were not properly tightened. He returned the motor home to Nelson on July 30th where the distributor was re-set and tightened down. This had not been done when the engine was installed in February 1979. The rear left springs were also tightened.

On August 1st, Rogers started on a trip to Wisconsin. While on this trip, engine noises developed again. Upon inspection by a mechanic in Missouri, it was found that the flywheel dust cover, oil line retaining clips and transmission line retainer were all left off at the time of the previous repair by Nelson. Also, there were several oil leaks. The mechanic in Missouri did not have parts for the necessary repairs. He told Rogers that he could drive the motor home with the existing problems and deficiencies but that Rogers would have to watch the oil level carefully in view of the leaks. Rogers managed to get back to Lake Charles by following such instructions and adding oil. He returned the motor home to Nelson on August 13th. Rogers made several calls requesting work to be done and when nothing was done by August 28th, he took the motor home to his house, parked it in his yard and instituted this suit.

Rogers filed suit for damages against Nelson Dodge and Chrysler Corporation. Chrysler’s exception of prescription was sustained and suit was dismissed as to this defendant. After a jury trial, a general verdict was returned awarding damages to Rogers and against Nelson in the amount of $10,000.00. From that judgment, Nelson has perfected this appeal.

The issues presented on appeal are:

(1) Whether Nelson is liable to Rogers for the breach of a contract;
(2) Whether Rogers failed to mitigate his damages; and
(3) Whether the award by the jury was excessive.

BREACH OF CONTRACT

The first issue is whether Nelson is liable for damages to Rogers for a breach of contract to repair, the motor home.

The obligations of one who undertakes the performance of a contract for services are set forth in the ease of Tiger Well Service v. Kimball Production Co., 343 So.2d 1153, 1157 (La.App. 3rd Cir. 1977), where this court held as follows:

“It is generally held that under the cited articles every contract for work or services carries an implied obligation on the part of the contractor that he will perform in a good workmanlike manner in default of which he must respond in damages for the losses that may ensue. In Hebert v. Pierrotti, 205 So.2d 888 (La.App. 3rd Cir. 1968), we stated:
‘As a general rule, there is implied in every contract for work or services that the work will be performed in a skillful, careful, diligent and good workmanlike manner. LSA-C.C. arts. 1930 and 2769; [ ] Wolfe v. LeVasseur-Hinson Construction Company, 147 So.2d 747 (La.App. 2d Cir. 1962); Hunter v. Mayfield, 106 So.2d 330 (La.App. 2d Cir. 1958); Rotolo v. Stewart, 127 So.2d 24 (La.App. 1st Cir. 1961); Rathe v. Maher, 184 So.2d 256 (La.App. 1st Cir. 1966); 17A C.J.S. Contracts § 329, p. 292; 17 Am.Jur.2d, Contracts Sec. 371, p. 814:

As we examine the record in light of these principles we conclude that Nelson failed to perform the repair work in a workmanlike manner. The evidence reflects that Rogers encountered a succession of serious problems with the operation of the motor home. The motor home became unreliable and practically useless to Rogers. The evidence shows that such condition was due to lack of workmanlike performance by Nelson in its endeavors to make repairs.

The initial dismantling and reassembly of the engine, and the ultimate change of engines, resulted in a succession of problems caused by lacki of workmanlike performance.

We find that the evidence clearly justifies the jury conclusion that Nelson had breached its contract to render the repair services. Such breach of contract would entitle Rogers to any damages he may have incurred.

DAMAGES

The damages recoverable for a breach of a service contract were set forth by the Supreme Court in the case of Meador v. Toyota of Jefferson, Inc., 332 So.2d 433, 434, 435 and 437 (La.1976):

“Generally, recovery for damages upon the breach of a contract is limited to the loss a person has sustained or the profit of which he has been deprived.... However, in certain limited circumstances a person may, upon the breach of a contract, recover damages for nonpecuniary loss. . . .
******
“Thus, we would interpret Article 1934(3) [ ] as follows: Where an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification) nonpecuni-ary damages as a consequence of nonful-fillment of that object are not recoverable.”

The trial judge properly instructed the jury that any damages to be awarded to Rogers must be limited to pecuniary losses incurred by Rogers. Nelson contends that the award of $10,000.00 as a pecuniary award was excessive.

The trial judge, in his reasons for overruling a motion for a new trial, made these following observations:

“I don’t know what the jury based its decision on. It obviously had to be one of two things: one, it accepted plaintiff’s testimony that the motor home was of no value, that it probably could not have been repaired, that it would never serve the function of a motor home and, considering the established initial value based on the purchase price and a calculation of some salvage value, the jury reached the decision of $10,000.00. The other approach it might have taken was to consider the actual money paid by plaintiff to Nelson Dodge, $1,000.00 for repairs, five months of down time during the time the repairs were being made, and many months of down time when the plaintiff parked the motor home at his house and left it there, and the simple multiplication of the total months of down time by the amount of payments that he made, which was an approach sanctioned in the case of Meador v. Toyota, 332 So.(2d) 433 (La.1976). By using these figures and adding a reasonable amount for depreciation, the jury could have come up with $10,000.00.
“There was no appraisal testimony presented by either side, nor was there any expert mechanic testimony presented by either side with regard to the condition of the vehicle at the time plaintiff parked it at his house or later. .... There is plaintiff’s own testimony and that of his wife about how the vehicle ran and how much trouble he had with it, and I had no hesitation and the jury obviously felt the same way in believing plaintiff. His testimony was highly credible. .... The fact that defendant tried many, many times to repair the vehicle and according to a preponderance of the testimony it failed to repair the vehicle is additional evidence that it could not be repaired.”

We agree with the trial judge. There is ample evidence in the record to support the verdict of the jury. Due to a lack of expert testimony, the damages of Rogers cannot be estimated exactly, but this lack of exactness does not bar the jury from awarding reasonable damages according to the facts and circumstances of the case. In Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151, 155 (1971), the Supreme Court stated as follows:

“Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all the facts and circumstances of the case. Civil Code Art. 1934(3); Brantley v. Tremont & Gulf Ry. Co., 226 La. 176, 75 So.2d 236 (1954), and decisions therein cited. ... .”

See also: North American Contracting Corp. v. Gibson, 327 So.2d 444 (La.App. 3rd Cir. 1975), writ den., 332 So.2d 280 (La.1976).

We find that the jury was not clearly wrong in its award of damages.

MITIGATION OF DAMAGES

Nelson contends that Rogers’ recovery should be reduced due to his failure to mitigate his damages by not having his motor home repaired rather than letting it sit from August 28, 1979, to December 10, 1980, the date of the trial.

It is well settled law that:

"... it is the duty of an injured party to mitigate his damages after a wrongful action occurs. This rule applies to both tort and breach of contract action.”

Landry v. Racca, 386 So.2d 1013, 1015 (La. App. 3rd Cir. 1980). In Dupre v. Tri-Parish Flying Service, Inc., 355 So.2d 554, 556 (La. App. 3rd Cir. 1978), we quoted the test adopted by our Supreme Court in Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823 (La. 1968), which stated:

"... the consequences of an injury are recoverable where the injured party acts with such care and diligence as a man of ordinary prudence would under the circumstances, and his efforts to minimize damages are determined by the rules of common sense, good faith and fair dealing."

The trial judge, in his reasons for overruling the motion for a new trial, properly disposed of this issue in view of the principles set forth above. We quote, in part, such reasons:

“In connection with this issue defendant’s argument is that plaintiff simply parked the vehicle that needed only minor repairs and let it sit for months and that he should not be allowed to recover damages for all that time when he could have repaired it and used it. Of course, the answer to that is there is no evidence at all in the record that the vehicle could have been repaired and used. And plaintiff’s explanation of why he did that is plausible and I believe truthful when he explained that having experienced defendant’s vain attempts to repair the vehicle he came to the conclusion it couldn’t be repaired. Furthermore, he had an additional problem, where would he take it to be repaired? The only Dodge dealership nearby was Nelson Dodge.”

We hold that Rogers did not violate any duty to mitigate damages.

For the reasons assigned, the judgment of the trial court is affirmed. Defendant, Nelson Dodge, Inc., is to pay all costs of this appeal.

AFFIRMED.

CULPEPPER, J., dissents and assigns reasons.

CULPEPPER, Judge,

dissenting.

I dissent, being of the opinion plaintiff has not proved pecuniary damages of $10,-000.

Briefly, the facts are that plaintiff purchased the motor home in 1978 from a third party for $14,500. It had 3,500 miles on it at the time. By the time of trial in 1980, it had 11,500 miles on it.

Although Nelson Dodge, Inc. did not want to attempt the repairs, it finally agreed to try, motivated principally by Chrysler Corporation’s agreement to furnish a new engine of less horsepower. Chrysler Corporation was dismissed on an exception of prescription. Now, Nelson Dodge is faced with paying a $10,000 judgment for defective repairs which it did not want to attempt in the first place.

Although I can agree that the attempted repairs were unworkmanlike, I cannot agree that plaintiff has proved pecuniary losses of $10,000. There is no evidence as to the value of the motor home before or after the repairs by Nelson Dodge. Nor is there any other evidence to show any pecuniary loss by plaintiff. He lost the use of this recreational vehicle for several months, and there is no doubt that the delay and the mechanical difficulties caused him much aggravation, mental distress and inconvenience. However, these nonpecuniary damages are not recoverable.

The law is clear. Under Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976) non-pecuniary damages for breach of contract are not recoverable except where the contract has for its object the gratification of some intellectual enjoyment. LSA-C.C. Article 1934(3). In Meador, an 18-year-old girl took her Toyota automobile to defendant for repairs. Defendant delayed repairs and did not return the automobile to plaintiff for several months. She sued for damages for aggravation, distress and inconvenience caused by the delay. The trial court awarded her $1,554. The Supreme Court, with only one dissent, reversed, holding that plaintiff was not entitled to damages for aggravation, distress and inconvenience. The court stated the object of the contract was not intellectual enjoyment, citing LSA-C.C. Article 1934(3).

Although Meador has been criticized, it is still the law and is controlling on us in the present case.

For the reasons assigned, I respectfully dissent.

      . LSA-C.C. art. 1930 states:
      “The obligations of contract [contracts] extending to whatsoever is incident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.”
      LSA-C.C. art. 2769 states:
      “If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

      . LSA-C.C. art. 1934 reads, in pertinent part, as follows:
      “Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications.”
      ******
      “3. Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.”


author: HUGHES, Judge.

text:
    Patricia Lee YODER and Thomas Yoder v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS, INC.
    No 11691.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 1981.
    Law Offices of Guy W. Olano, Jr., Frank P. Tranchina, Jr., Kenner, for plaintiffs-ap-pellees.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, William G. Tabb, III, New Orleans> ^or defendant-appellant.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   HUGHES, Judge.

The defendant, Schwegmann Brothers Giant Super Markets, Inc., appeals the amount of an award made to plaintiff, Patricia Yoder, contending that the trial court abused its discretion by making an excessive award. We affirm.

Patricia Yoder sustained a fracture of the right radial head of her elbow when she fell in a Schwegmann’s Super Market on. Veterans Highway in Jefferson on April 12,1978. There was minimal displacement of the fracture fragment. Mrs. Yoder’s physician placed her arm in a long cast and he treated her for some two months after her accident. At the trial of this case, Mrs. Yoder and her husband testified that she was still experiencing limitation in the movement of her arm and that she was unable to fully extend the arm. They also testified concerning the pain and discomfort experienced by Mrs. Yoder between the time of the accident and the date of the trial. Mrs. Yoder’s physician indicated that it was possible that there might be residual disability in the nature of degenerative arthritis. Based on this evidence, the lower court awarded plaintiff-appellee $7,500.00 general damages.

Our review of the medical evidence and the testimony of plaintiff and her husband leads to the conclusion that the record fails to support the contention of the defendant that the trial judge abused his great discretion in assessing the amount of general damages owed. Under Louisiana law it is error for an appellate court to find that the trier of fact abused his discretion simply by comparing previous awards made for medically similar injuries without considering the particular facts and circumstances of each case. Reck v. Stevens, 373 So.2d 498 (La.1979).

The defendant suggests that since Mrs. Yoder did not see a therapist as suggested by her physician, this is indicative of the fact that she was not severely injured. However, Mrs. Yoder is a nurse and she testified that after her cast was removed she began exercising with a 6 pound weight twice a day. It is obvious that she feels that her physical therapy was helpful but she testified that her right arm was still weaker than it had been before. In reference to this, Mrs. Yoder’s husband testified that it was apparent that there were still occasions when her arm was causing her trouble. He indicated that occasionally she would lose her grip and drop something, like a plate.

It is apparent on review of the record that the trial judge accepted the testimony of Mr. and Mrs. Yoder as an accurate and truthful description of the problems that she experienced following her accident. There is no evidence in this record that would lead us to conclude that the trial judge was in error in his assessment of the evidence. Absent any manifest error on the part of the trial court, we are obliged to affirm the factual findings and his assessment of the credibility of witnesses. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We therefore conclude that the trial judge’s award of $7,500.00 is supported by the record and we are of the opinion that it is not substantially different from previous awards in similar cases. Accordingly, the decision of the trial court is affirmed.

AFFIRMED.


author: PONDER, Judge.

text:
    NORTH FOREST HOMEOWNERS’ ASSOCIATION, et al. v. HOMECRAFT CORPORATION, et al.
    No. 14172.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      John F. Robbert, New Orleans, for plaintiffs.
    Pat Berrigan, Slidell,'James Jenkins, Abi-ta Springs, Margaret Ann Brown, New Orleans, for defendants.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiffs, homeowners and a civil association, filed suit in redhibition, negligence and unjust enrichment against defendants, contractors and the parish police jury, because of defective streets and inadequate drainage of their subdivision. They appealed from the judgment of dismissal on peremptory exceptions of prescription, no right of action and no cause of action.

The issues are prescription, actio de in rem verso, and failure to allow amendment after sustaining a peremptory exception of no cause of action.

We affirm in part, reverse in part and remand.

Circle R, Inc., developed North Forest Subdivision during the early 1970’s. It sold all the lots, developed in three phases, to Homecraft Corporation, the predecessor of U. S. Home Corporation. The latter built homes on the lots and from 1974 to 1977 sold them to purchasers, among them the three individual plaintiffs herein. Final approval of the subdivision was given by resolution of the police jury on May 16,1974 for the first phase, July 18, 1974 for the second phase and December 17, 1974 for the third phase.

Appellants contend that liberative prescription did not commence running until June, 1979, for multiple reasons: that defects were not discovered until then, that attempts to repair were not abandoned until then, that buyers were ignorant of facts entitling them to bring suit, that the tort was a continuing one, and that defendants had lulled appellants into a false sense of security.

With exceptions to be hereafter noted, the trial court has correctly treated the exceptions in written reasons which we adopt as our own.

“Circle R, Inc., filed the following exceptions:
* * * * * *
b. peremptory exceptions:
(1) to the use of the class action vehicle;
(2) prescription;
(3) no right of action; and
(4) no cause of action.
U. S. Home Corporation, successor to Homecraft Corporation, filed peremptory exceptions of prescription and no right of action.
The St. Tammany Police Jury joined with Circle R, Inc., and pleaded * * * a peremptory exception to the use of a class action.
First, after reviewing the pleadings, and the evidence, both parol and documentary, the Court finds that Circle R, Inc., dedicated to the public all streets in the North Forest Subdivision. This dedication was clearly and properly accepted by the St. Tammany Parish Police Jury, as indicated on the plats covering the three phases of the subdivision, and by excerpts from minutes of the meetings of Police Jury.
Therefore, the streets belong to the public — not Circle R, Inc., — and they are subject to the exclusive authority of the St. Tammany Parish Commission Council, successor to the Police Jury, insofar as maintenance and repairs are concerned.

In Article XVI of the petition plaintiffs allege:

In the alternative and in the event the Police Jury does not have exclusive authority to repair roads, and in the event this Court finds Circle R the owner of said roads, Circle R has created a nuisance in fact and in law as a result of which the plaintiffs’ property has depreciated in value and plaintiffs are entitled to an order of this Court ordering the Parish to repair said streets at the expense of Circle R. (Emphasis added)

Therefore, due to the findings of the Court that there has been a valid dedication of the streets by Circle R, Inc., to the public, and considering the alternative method by which it is claimed a nuisance has been created by Circle R, Inc., the plaintiffs have no right or standing to pursue the nuisance claim against Circle R, Inc. This claim will be dismissed with prejudice without the necessity of addressing the matter of prescription.

Donnie Ray Benson, and his wife, Virginia Benson, acquired their home in the subdivision by deed dated April 23,1975. At the time the Bensons occupied their home, or very shortly thereafter, street deterioration was noticed. Support rods were working through the concrete; the concrete streets were cracking and buckling. Holes were developing in the streets. Curbs buckled. The drainage was inadequate to remove water accumulating from heavy rains, with the result that the entrance sometimes flooded to such an extent as to deny homeowners access to and from the subdivision by automobile.

U. S. Homes was in the midst of construction in the summer of 1975, and its construction supervisor, Phil Switzer, was on the site. Mrs. Benson spoke to Mr. Switzer about the street and drainage problems during the summer of 1975, and she was advised by him that Homecraft, now U. S. Homes, would do nothing about the problem.

Switzer and Homecraft expressed their readiness to repair any damages caused by the ongoing construction, and did repair some street signs and clean out a drain. In fact, he felt that Homecraft did repair all damages caused by construction. He felt that the complaints dealt with ‘problems’ unrelated to new home construction. His opinion and the position of Homecraft to accept no responsibility for the condition of the streets and drainage within the subdivision were unequivocally conveyed to Mrs. Benson and other residents of the subdivision.

The street and drainage problems, together with the expressed position of no responsibility on the part of Homecraft was the driving force that brought about the organization in late 1975 of the North Forest Homeowners’ Association.

Plaintiff, James Anderson, acquired his home in the subdivision by deed dated June 30, 1975, and was elected president (the second president) of the Homeowners’ Association in 1976, and served from September, 1976, through September, 1977. At the time of his purchase, all streets were complete, and he noticed some puddling of water in the streets and some curb deterioration. Although he assumed Homecraft would make repairs when home construction was complete, he was never told so.

From the time he entered the office of president of the Homeowners’ Association he received complaints regarding the streets.

By letter dated March 12, 1977, directed to Phil Switzer of Homecraft, Mr. Anderson advised that he was being constantly questioned by subdivision homeowners regarding the condition of streets and drainage within the subdivision. He advised Mr. Switzer that ‘Most homeowners have strongly voiced their growing disgust at the rapid rate with which the streets are deteriorating and the apparent lack of interest by anyone on a responsible level to take positive actions to correct the situation.’ He requested a response from Switzer by March 22, 1977, so that the Association would be “entirely clear’ on Homecraft’s position regarding the streets and drainage.

On March 23, 1977, Switzer responded in writing to the Anderson letter, and reiterated the Homecraft policy to repair any areas damaged during construction. He concluded that ‘This cannot and does not mean, however, that we will assume the responsibility of either developer or governing body to perform maintenance on the public facilities of the subdivision.’

On March 24, 1977, Mr. Anderson was in contact with the Police Jury and first learned that Circle R had constructed the streets.

In early 1977, Mr. Anderson and other members of the Homeowners’ association maintained regular contact with police jurors and anyone else whom they thought might get them relief, including the Governor’s Office of Consumer Protection. They received only rhetoric, but no promises from anyone to effect the repairs.

In 1977, as a result of meetings and pressure from the homeowners and the police jury, Circle R agreed to a payment to the Police Jury of $12,500.00 to repair the streets, provided that Homecraft would match the' funds. Homecraft eventually deposited the matching $12,500.00 under protest, and the Police Jury made some repairs in the summer of 1978. At no time, however, did Circle R or Homecraft admit their responsibility or liability for the condition of the streets. To the contrary, such liability was strongly denied. It would appear that the funds were made available as a public relations gesture.

The homeowners were not satisfied with the repairs made by the Police Jury in the summer of 1978. At this time they clearly knew, or should have known, that their concerted and extensive efforts to obtain street and drainage repairs were all to no avail. No further repair work has been undertaken by the Police Jury. This lawsuit followed on January 14, 1980.

Plaintiff Henry Allen Sorrels III acquired his home from Homecraft on April 29,1977, and Homecraft completed its construction and development of the subdivision with the closing of its last act of sale in November, 1977.

The complaint made by the plaintiffs alleges an omission on the part of Circle R and Homecraft in not warning of the condition of the streets and drainage before closing the acts of sale. Nothing occurred in the relationship between the parties to interrupt the one year liberative prescription, and this claim has clearly prescribed.

* * * * * *

A claim is made against Circle R under the doctrine of actio de in rem verso. The principle behind this claim is based in equity. Our Supreme Court dealt with such a cause of action in Minyard v. Curtis Products, Inc., [251 La. 624] 205 So.2d 422 (La.1967).

The Court set forth five prerequisites to the successful suit by actio de in rem verso:

(1) there must be an enrichment,
(2) there must be an impoverishment
(3) there must be a connection between the enrichment and resulting impoverishment,
(4) there must be an absence of ‘justification’ or ‘Cause’ for the enrichment and impoverishment, and
(5) the action will only be allowed when there is no other remedy at law, i.e., the action is subsidiary or corrective in nature.

Obviously, this doctrine has no application to the case at bar. This comes clear on an analysis of the fifth prerequisite, which makes further examination unnecessary. The Supreme Court, [205 So.2d] at page 433 in the Minyard case, pointed out:

‘The fifth requirement, that there be no other remedy available at law, is simply an aspect of the principle that the action must not be allowed to defeat the purpose of a rule of law directed to the matter at issue. It must not, in the language of some writers, “perpetrate a fraud on the law.” Article 21 of the Louisiana Civil Code prohibits a reference to principles of equity in cases which would allow application of more specific legal action.’

Therefore, the peremptory exception of no cause of action directed toward this cause of action will be sustained.

The plaintiffs also seek, in Article XVIII of their petition, a reduction in the selling prices of their lots and homes. This claim must be viewed in light of the codal articles on redhibition. To this claim, there has been filed a peremptory exception of prescription.

The applicable codal articles are 2534, 2545 and 2546:

‘Art. 2534. The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.

This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.’

‘Art. 2545. The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.’

‘Art. 2546. In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice.’

This vice is not to be presumed; it must be proved by the seller.

Homecraft or U. S. Homes carried its burden of proof, and adequately established that in early 1977, North Forest residents considered their streets and drainage to be in bad repairs. In fact, it was on March 12, 1977, that Mr. James E. Anderson, president of the Homeowners’ Association, wrote Mr. Switzer advising of the growing disgust of the North Forest residents over their streets and drains. The very tone of the letter approached that similar to what one would expect in a demand letter. No defendant promised to satisfy the homeowners’ complaint. To the contrary, Homecraft was consistent in its denials of responsibility as far back as 1975. There has been nothing done by Homecraft or Circle R that would result in an interruption of prescription. The exceptions of prescription will be sustained.

Consequently, all claims against Circle R, Inc., and U. S. Homes Corporation will be dismissed at plaintiffs’ cost.”

Appellants ascribe error to the failure to recognize Art. 669 and to assign 10 years prescription. The article does not lend itself to the facts of this case; we find it inapplicable.

In oral argument appellants have urged the court to apply the oblique action, the right of a suing creditor to exercise, in the insolvent debtor’s name, the latter’s rights and actions. We are not persuaded to employ this action, expressly and intentionally omitted from the Code of 1825 and used only a few times in our jurisprudential history.

The cause of action against the police jury is expressed in terms of failure to maintain streets and failure to use collected taxes for street maintenance. We agree with the trial judge that those allegations fail to state a cause of action because of the discretion given to the governing body and the reluctance of the courts to assume the authority to supervise the exercise of that discretion.

However, a cause of action may be stated against the governing authority. See Eschete v. City of New Orleans, 258 La. 134, 245 So.2d 383 (1971); McCloud v. Parish of Jefferson, 383 So.2d 477 (4th Cir. 1980); Pennebaker v. Parish of Jefferson, 383 So.2d 484 (4th Cir. 1980). We therefore believe that the trial judge erred in not giving plaintiffs an opportunity to amend their pleadings in accord with La.Code of Civil Procedure Art. 934.

For these reasons, we affirm the judgments insofar as it maintained the exceptions and dismissed the suits against Circle R, Inc., and U. S. Home Corporation. We affirm the judgment insofar as it maintained the exceptions of no cause of action against the St. Tammany Parish Police Jury. We reverse, however, the dismissal of the suit, and remand the case for further proceedings in accord with this opinion. The plaintiffs are cast with all costs of both courts.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . La.Civil Code Art. 669:
      “If the works or materials for any manufac-tory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place.”

      . See Comment, The Oblique Action, 54 Tul. L.R. 699 (1980).

      . La.C.C.P. Art. 934:
      “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”


author: CHIASSON, Judge:

text:
    Bertha Dedon ANDROWSKI, et al., v. OLE McDONALD’S FARMS, INC.
    No. 14281.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Writ Denied Jan. 18, 1982.

      Charles S. McCowan, Jr., Baton Rouge, for plaintiffs Bertha Dedon Androwski, David Michael Androwski, Patricia Elaine Androwski, John Stanley Androwski and Daniel William Androwski.
    Bobby L. Forrest, Baton Rouge, for defendant Ole McDonald’s Farms.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge:

Plaintiffs, Bertha Dedon Androwski, David Michael Androwski, Patricia Elaine Androwski, John Stanley Androwski and Daniel William Androwski, appeal the judgment of the trial court sustaining the exception of no cause of action filed by defendant, Ole McDonald’s Farms, Inc., and dismissing plaintiffs’ damage suit against defendant.

Plaintiffs’ petition alleges that they are the owners in indivisión of an eighty-seven (87) acre tract of land situated in the Parish of East Baton Rouge; that defendant owns real property which adjoins the property owned by petitioners in the Northeast corner thereof with a common boundary of approximately twenty-two hundred (2200) feet; that defendant has constructed upon its property a sewage oxidation pond within five to ten feet of the common boundary and extending the full length of the common boundary; that the Division of Health of the Louisiana Health and Human Resources Administration and the Department of Public Works of the City Parish Government of Baton Rouge, Louisiana, require that sewage oxidation ponds be constructed at least two hundred (200) feet from any residence; that both the Federal Housing Administration and the Veterans Administration will not approve a mortgage loan on residences located nearer than two hundred (200) feet to a sewage oxidation pond; that plaintiffs’ property is in a rapidly developing residential area and they plan to develop their property into a residentiaj subdivision in the very near future; that defendant has constructed a work on its property which deprives plaintiffs the liberty of using 7.45 acres of their property in a reasonable manner; and that plaintiffs are thus entitled to damages under Article 667 of the Civil Code.

The peremptory exception of no cause of action is decided on the face of the pleadings and “(N)o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La.C.C.P. art. 931.

The purpose of the exception of no cause of action is to test whether the allegations of the petition entitle the petitioner to a remedy under any theory of law. For the purpose of deciding this exception, all well pleaded allegations of fact in the petition must be accepted as true. Every reasonable interpretation must be afforded the language of the petition so as to maintain the sufficiency of the petition and to afford plaintiff his or her day in court. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Adserv Corp. v. Lincecum, 385 So.2d 432 (La.App. 1st Cir. 1980); American Bank & Trust Company v. French, 226 So.2d 580 (La.App. 1st Cir. 1969).

The issue presented by plaintiffs’ petition is: Does the construction of an oxidation pond adjacent to and within five to ten feet of the property line separating contiguous estates give rise to a claim for damages for diminution in value of the neighboring property when no negligence, physical intrusion, or ultrahazardous activities are involved?

Louisiana Civil Code Articles 667 and 668 are respectively relied on by plaintiffs and defendant to sustain their contentions in this case. These articles of the Civil Code read as follows:

Art. 667.
“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”
Art. 668.
“Although one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
“Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors’s [neighbor’s] house, because this act occasions only an inconvenience, but not a real damage.”

Both parties to this action base their positions on interpretations of the 1975 Supreme Court case of Hero Lands Company v. Texaco, Inc., supra. The claim in Hero was for damages for the depreciation of property value due to the presence of a high pressure gas pipeline bordering plaintiffs’ property which was to be developed as a subdivision. The lower courts had held that no damages for depreciation of land value were available when no physical intrusion occurred and sustained an exception of no cause of action. The Supreme Court reversed, finding the allegations of the Hero Lands Company’s petition were sufficient in law to state a cause of action for damages resulting from the installation of the pipeline by Texaco. The Per Curiam on Application for Rehearing has been quoted as supporting the position of both parties in the present case, so it is reprinted here, as follows:

“The application for rehearing argues that Jeansonne v. Cox, 233 La. 251, 96 So.2d 557 (1957) is contrary to our holding in this case. Apparently, defendants misunderstand the consequences of our opinion. We have not held that allegations of damage based upon a depreciation of land value because of ordinary constructions and activities on a neighbor’s property necessarily state a cause of action. The opinion has held that allegations that the maintenance of an ultra-hazardous construction on defendant’s servitude has caused them damage does under the factual allegation state a cause of action. We have remanded for trial on the merits to determine if the proof in support of these allegations entitles plaintiff to recovery of damages for the fault of defendant under the theory of abuse of right as expressed by La.Civil Code arts. 667 and 668.”
9ft SfC Sf¡ JfS * *

Defendant contends Hero and the Per Curiam stand for the proposition that only ultrahazardous activities can cause real damage, as opposed to mere inconvenience, where no physical invasion of property is involved.

Plaintiffs, on the other hand, contend Hero overruled prior decisions requiring a physical intrusion, and recognized that this is only one factor to be considered in the inconvenience-damage scale and quote from Hero the following:

“ * * * When the actions or works cease to be inconveniences and become damaging is a question of fact. The problem is one which involves the nature of the intrusion into the neighbor’s property, plus the extent or degree of damage. No principle of law confines this damage to physical invasion of the neighbor’s prem-ises_an extrinsic injury, as it were. The damage may well be intrinsic in nature, a combination of facts and conditions which, taken together, do not involve a physical invasion but which, under the circumstances, are nevertheless by their nature the very refinement of injury and damage. * * * ”

Plaintiffs further contend the Hero Court’s Per Curiam could well be paraphrased, as follows:

“Allegations of damage based upon a depreciation of land value resulting from ultrahazardous activities necessarily state a cause of action under Civil Code Articles 667-8 and the allegations of the petition. Allegations of damage based upon ordinary constructions do not necessarily state a cause of action; this is a question of fact that depends upon the nature of the intrusion into the neighbor’s property plus the extent of the damage.”

In Hero, supra, the damage alleged by plaintiffs-landowners was the reduction of property value within a two hundred fifty (250) feet corridor surrounding the defendant’s high pressure pipeline. In this case the damage alleged by plaintiffs-landowners is the reduction of property value within two hundred (200) feet of the oxidation pond. The damage claims in the two cases originate from different causes: In Hero from the hesitancy of the public to purchase land near known hazards; in the instant case from the inability to build because of state and local regulations.

We find that Hero does not hold that only ultrahazardous activities can cause real damage where there is no physical invasion of the neighboring property. Certainly, La.C.C. arts. 667 and 668 do not contain such a restriction. Ordinary use by a proprietor coupled with existing governmental regulations may result in real damage, as opposed to mere inconvenience, to a neighboring proprietor. It is the location selected by defendant for the site of the oxidation pond which establishes the location of the perimeter within which no residence can be built because of governmental regulations.

In a similar case, Merco Lands, Inc. v. Hutchinson, 306 So.2d 856 (La.App. 3rd Cir.1975), the Third Circuit Court of Appeal held that La.C.C. art. 667, in conjunction with La.C.C.P. art. 3601, entitled petitioner to an injunction preventing defendants from constructing, completing, or using an oxidation pond upon their property within fifty (50) feet of the property of the petitioner. The petitioner contemplated drilling a water well on its property and cited a provision of the Sanitary Code which provided that water wells shall not be located less than fifty (50) feet from an oxidation pond. This case involved only the enforcement of the legal servitude created by C.C. art. 667.

In the case before us, reparation for damages are being sought for allegedly violating the obligations contained in C.C. art. 667. The breach of any obligation “results in legal responsibility if the law provides a sanction for that breach, for, without any sanction, the obligation is merely an imperfect or natural obligation, neither of which can be enforced by any judicial action. C.C. 1757.” Dean v. Hercules, Incorporated, 328 So.2d 69 (La. 1976).

With reference to legal responsibility under C.C. art. 667, the majority in the Hero case stated:

“As expressed in the Article, the principle is a limitation the law imposes upon the rights of proprietors in the use of their property. It is a species of legal servitude in favor of neighboring property, an expression of the principle of sic utere. An activity, then, which causes damage to a neighbor’s property obliges the actor to repair the damage, even though his actions are prudent by usual standards. It is not the manner in which the activity is carried on which is significant; it is the fact that the activity causes damage to a neighbor which is relevant. Chaney v. Travelers Insurance Company, 259 La. 1, 249 So.2d 181 (1971). The article expresses, as this Court has often stated, a doctrine of strict liability which does not depend upon deliction. Craig v. Montelepre Realty Co. [252 La. 502, 211 So.2d 627], supra; Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955); Devoke v. Yazoo & M.V.R. Co., 211 La. 729, 30 So.2d 816 (1947).”

Justice Barham in a concurring opinion was “of the opinion that a suit for damages based on a violation of La.C.C. Art. 667 may constitute a delictual action based upon fault under Article 2315. It is fault which does not require proof of negligence. See Langlois v. Allied Chemical, 258 La. 1067, 249 So.2d 133 (1971).”

In Dean v. Hercules, Incorporated, supra, Justice Dixon in an unanimous decision held:

“An action for damages for a violation of article 667 is most closely associated with an action for damages based on C.C. 2315 et seq. Indeed, it can be said that a violation of article 667 constitutes fault within the meaning of article 2315.4 Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971).5 In effect, C.C. 667 imposes liability without negligence. * * *
“4 See Stone, Tort Doctrine in Louisiana:, The Obligations of Neighborhood, 40 Tul.L. Rev. 701, at 709, wherein the author points out that such an approach finds favor among many of the French commentators.
“5 In note 14 of the Langlois decision, article 667 is cited as an example of liability for fault which does not encompass negligence.”

Doctrinal writers have also differed as to the characterization of an action for damages under La.C.C. art. 667. See Stone, Tort Doctrine in Louisiana: The Obligations of Neighborhood, 40 Tul.L.Rev. 701, 708 (1966); Malone, The Work of the Louisiana Appellate Courts, 1969-70; Torts, 31 La.L.Rev. 231 (1971); Yiannopoulos, Civil Responsibility in the Framework of Vici-nage: Articles 667-69 and 2315 of the Civil Code, 48 Tul.L.Rev. 195 (1974); Dainow, The Work of the Louisiana Appellate Courts for the 1965-66 Term, 26 La.L.Rev. 459, 538 (1966); and Yiannopoulos, Violations of The Obligations of Vicinage: Remedies Under Articles 667 and 669, 34 La.L. Rev. 475 (1972).

Under either characterization, and accepting as true all well-pleaded facts in plaintiffs’ petition, we hold plaintiffs have stated a cause of action and defendant’s exception should not have been sustained by the trial court. Whether there has been a compensable abuse of the rights of ownership by a proprietor toward his neighbors is a question of fact to be decided at the trial of the case on the merits.

For these reasons, the judgment of the trial court is reversed and judgment is rendered herein overruling defendant’s exception of no cause of action. The case is remanded to the trial court for further proceedings in accordance with law.

Costs of this appeal are assessed against defendant. All other costs are to await the final determination of this action.

REVERSED, RENDERED AND REMANDED.


text:
    L. J. HARDING v. Johnny COLEMAN.
    No. 14364.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      Robert W. Stratton, Baker, for defendant-appellant, Johnny Coleman.
    William C. Bradley, Baker, for plaintiff-appellee, L. J. Harding.
    John Engelsman, Baker, for third party defendant-appellee, James P. Cox.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a judgment awarding damages for the breach of a building contract.

The issue on appeal is the admissibility of evidence of the subsequent sale of the building and lot by the plaintiff and the alleged unjust enrichment of plaintiff.

We affirm.

On a prior appeal, this court remanded “for the narrow purpose of receiving evidence concerning the cost of repairing the defects.... ” The finding of a defective performance on the part of the defendant was affirmed in that judgment.

In addition to evidence on the “cost to repair,” the defendant proffered the certified copy of a sale of the lot and building, subsequent to the first trial, together with proffered testimony that $110,000.00 of the price was for the building. He wanted to show that since the cost of the building was $29,000.00, plaintiff has suffered no loss. The trial judge held that the evidence on proffer was irrelevant and that the plaintiff was entitled to $14,300.00 subject to an offset of $6,372.00 still owed on the contract.

The defendant argues that the evidence on proffer was admissible and that the trial court should have proceeded in equity under Louisiana Civil Code Article 21. He further argues for application of the equitable actio de in rem verso provided for in Louisiana Civil Code Article 1965.

The trial court correctly denied the introduction of evidence on the new issues. The proffered evidence was beyond the scope of the order on remand. Collins v. Slocum, 317 So.2d 672 (3rd Cir. 1975), writ denied 321 So.2d 362, 363, 364 (La.1975).

For these reasons, the judgment is affirmed at the cost of the defendant.

AFFIRMED.

      . Harding v. Coleman, 388 So.2d 59 (1st Cir.1980).

      . La. Civil Code Article 21:
      “In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.”

      . La. Civil Code Article 1965:
      “The equity intended by this rule is founded in the Christian * principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must ** apply these principles to determine what ought to be incidents to a contract, which are not required by equity.
      * Note error in English translation of French text; ‘Christian’ should be ‘religious.’
      ** Note error in English translation of French text; ‘must’ should be ‘may.’ ”


author: LOTTINGER, Judge.

text:
    Charles A. HAASE, Jr. v. George DONALDSON.
    No. 14365.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Lawrence J. Fritz, Metairie, for plaintiff-appellee, Charles A. Haase, Jr.
    Stephen W. Cavanaugh, Baton Rouge, for defendant-appellant, George Donaldson.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit for a writ of sequestration. Defendant reconvened, seeking to dissolve the sequestration, and asked for damages for wrongful issuance of the writ. After a hearing, the trial court resolved the issue of ownership and found that the sequestration was not wrongfully issued. Defendant has appealed.

In October of 1979 Charles Haase, a part-time builder of racing vehicles, and George Donaldson, a competition driver of dragsters, agreed to pool their resources in an effort to build the top fuel dragster in question. Plaintiff Haase would construct the chassis and body of the car and the defendant would furnish the engine. Both parties performed the work assembling and constructing the vehicle at the plaintiff’s shop in New Orleans. On April 27,1980 the parties attended the Cajun Nationals in Baton Rouge, where the racing vehicle was entered into competition. Immediately after the competition, defendant decided to keep the racing vehicle in Baton Rouge over the weekend. When the vehicle was not returned to New Orleans on the following Monday, several phone calls from plaintiff to defendant were unsuccessful in having the vehicle returned to New Orleans. The plaintiff was informed by the defendant that the car was in the hands of a third party and it was not going back to New Orleans at any time. At that point, plaintiff instituted the present proceeding. The trial court found that the plaintiff was the owner of the car as a whole and ordered the vehicle released to him. The court further held that the engine, transmission, wheels, tires, and parachute cables were the property of the defendant, and these were ordered returned to him.

In appealing defendant-appellant assigns four specifications of error:

I. The judgment signed by the Trial Court on September 3, 1980, was not accurately reflective of the order of the court at trial on August 28, 1980, in that it failed to award to Appellant the wheels and tires.
II. The judgment signed on September 3,1980 is inexact in that it fails to specify which are motor and transmission parts.
III. The Trial Court erred in declaring that the sequestration of the vehicle was not wrongful because Appellee “owned” the vehicle. The judgment clearly was that Appellee owned only part of the vehicle, and testimony at trial established that the value of Appellant’s and Appel-lee's parts were nearly equal.
IV.The Trial Court erred in admitting and relying on, over the objection of Appellant’s counsel, hearsay documents such as receipts and invoices purporting to be for parts used in the building of the machine.

ASSIGNMENT OF ERROR NO. 1

An examination of the record points out that the trial court did award the wheels and tires to the defendant, and that these items were left out of the judgment signed on September 3, 1980. Therefore, the judgment will be amended accordingly.

ASSIGNMENT OF ERROR NO. 2

Defendant claims that the judgment rendered was not sufficiently explicit so as to provide certainty as to what parts composed the engine and transmission.

In response to plaintiff’s interrogatories the defendant did list the complete shifter, the fuel injection fuel pump metering valve, and the idle bypass valve in the list of parts he had purchased. Response to these interrogatories was not questioned by the plaintiff.

From a complete review of the record we conclude that the complete shifter should logically be included as part of the transmission, and that the metering valve and idle bypass valve are concomitant to the engine and must be awarded to the defendant. However, we are also of the opinion that the fuel injection fuel pump intake hose, the coupler, and the retaining accessories are not truly part and parcel of the engine or transmission and must remain with the plaintiff. The judgment will be amended accordingly.

ASSIGNMENT OF ERROR NO. 3

Sequestration is intended to allow a claimant to prevent the destruction, waste or alienation of property he alleges is his during the pendency of the demand. La.C. C.P. art. 3571. Plaintiff alleged that the defendant threatened to dispose of or destroy the vehicle. This Court is impressed, as was apparently the trial court, that plaintiff was not worried for the safety or welfare of the chassis or body of the car, but for the car as a whole.

The issue is what components of the vehicle belonged to whom. It was necessary that the plaintiff cause the entire vehicle to be sequestered so that the parties could litigate what pieces of the vehicle belonged to each. In Donald v. Glazer, 194 So.2d 176 (La.App.2nd Cir.1967), the court held that where two withdrawing partners had proprietary interest in partnership property under the exclusive management of another partner and where the identity of the orn-ership of some of this property whether by the partnership or by another partner was uncertain, then the issuance of a writ of sequestration over all the property of the partnership was not improper. The facts of this case are most similar.

We additionally find aid in the Civil Code Articles pertaining to the accession of moveables. La.C.C. art. 508 provides that things are divided into principals and accessories, and that an accessory is a corporeal moveable which serves the use, ornament, or complement of the principal thing. La. C.C. art. 509 states that when there is doubt as to which moveable is principal and which is accessory, the more valuable is deemed principal. Additionally, Article 509 provides that the most bulky thing is principal if the value of the two moveables is nearly equal.

The trial court apparently believed that the chassis and body of the car was in the nature of a “principal” thing and that the engine, transmission, and etc. were more like “accessory.” Thus, since the plaintiff proved ownership of the chassis and body, he proved ownership of the “vehicle” as a whole, so as to validate sequestration. We agree with the trial court, especially in light of testimony that a top fuel dragster required more than one engine to be truly competitive, and that it was a common practice to change engines completely between each running of such vehicles.

The defendant lastly argues that sequestration of the entire vehicle was wrongful because the plaintiff admitted at all times that the engine belonged to th,e defendant. The fact alone that the defendant still argues on appeal what parts belong to the engine makes it clear that plaintiff took the proper course in sequestering the entire vehicle.

We do not advocate as a general rule that a plaintiff cause sequestration of items which he knows do not belong to him. Only when as a practical matter it is impossible to ascertain what specific items comprise the components of a complex and detailed subject matter such as a top fuel dragster, can a sequestration of the entire subject matter be justified, where the plaintiff is aware that some component parts are not his. Thus, this decision is limited to the facts before us.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the introduction of the invoices in question violated the hearsay rule. When the invoices were first mentioned during the trial, the defendant objected to their introduction as inad-missable hearsay. The objection was overruled. We note, however, that the invoices were not actually offered into evidence at that time. They were subsequently offered at which point the trial court asked the defendant if he wished to make the same objection. His answer was “No, your hon- or. We have no objection.” The trial judge was apparently attempting to show the defendant that his prior objection had been premature, and that the defendant needed to object at the time that the invoices were actually offered for introduction. Because the defendant made no objection at the time the invoices were actually offered into evidence, the objection is waived.

Therefore, for the above and foregoing reasons, the judgment of the trial court is amended to award the defendant, George Donaldson, in addition to those items awarded in the trial court judgment the wheels, tires, complete shifter, the fuel injection metering valve, and the fuel injection idle bypass valve of the racing vehicle X085-2471. In all other respects the judgment of the trial court is affirmed at defendant-appellant’s costs.

AMENDED AND AFFIRMED.


text:
    H. E. WIESE, INC., et al., v. WESTERN STRESS, INC., et al.
    No. 14366.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      W. Arthur Abercrombie, Baton Rouge, for plaintiffs-appellees H. E. Wiese, Inc. and Copolymer Rubber & Chemical Corp.
    Henry D. Salassi, Jr., Baton Rouge, for defendant-appellant Western Stress, Inc., et al.
    Arthur H. Andrews and Terrence C. McRea, Baton Rouge, for defendant-appel-lee Security Ins. Co. of Hartford.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

This is a suit for damages by H. E. Wiese, Inc. and Copolymer Rubber & Chemical Corporation against Western Stress, Inc., and Security Insurance Company of Hartford. Plaintiffs allege that Western improperly performed certain stress relief work on a boiler, causing damages stipulated to be $73,000.00. Western answered, denying liability, and third partied Security, which had denied coverage under its policy, seeking indemnification. After trial on the merits, judgment was rendered in favor of plaintiffs and against Western for the stipulated damages, and dismissing both the main and third party demands as to Security. From this judgment, Western has appealed.

Wiese entered into a contract with Copo-lymer to overhaul a boiler. The work required Wiese to remove a tube sheet and 1,400 tubes from the boiler and replace them with new material. After the tube sheet had been replaced in the shell of the boiler, it was necessary to relieve the stresses caused by welding the tube sheet to the shell. Wiese contracted to have this work done by Western.

On March 7, 1977, Western presented a quotation for performing the job, including the following language:

“Job Scope:
“To provide stress relieving services at your Baton Rouge, Copolymer jobsite on an as required basis.
“For the Services:
“Western Stress will provide all necessary personnel, equipment and expendable materials required to post weld heat treat Tube Sheet welds at your Copolymer job-site.
“All stress relieving services will be recorded and documented and be presented to your representative to provide a permanent record of work performed.”

On March 11, 1977, a work contract was executed, containing the following pertinent provision:

“Contractor agrees to perform the following work: Furnish labor, materials not furnished by owner, supervision, tools, equipment, insurance, utilities, facilities, and perform each and every act necessary to do the stress relieving work on Waste Heat Boiler at Company’s jobsite within the Copolymer Rubber and Chemical Company’s complex at Baton Rouge, Louisiana, all in strict accordance with instructions from company’s Field Superintendent.”

Stress relief is a process, whereby newly welded joints are heated to about 1,100°F. in order to relieve internal stress caused by the welding. In this case, the work was to be performed after the tube sheet was welded to the outer shell of the boiler. The tube sheet itself is a circular sheet of steel, two inches in thickness and ten and one-half feet in diameter, perforated to receive 1,400 boiler tubes.

After the heat treatment had taken place, the tube sheet was found to be so distorted that many of the tube holes were so out of round that the tubes could not be inserted through the holes. As a result the tube sheet had to be removed and reshaped, and then reinstalled and properly heat treated.

In performing the stress relief work, Western heat treated only the welds proper. Plaintiffs’ expert witness testified that not only the welds but the tube sheet itself had to be heat treated to relieve the internal stresses without resulting distortion.

Western’s expert testified that it did the work in accordance with its contract and with specifications provided by the American Society of Mechanical Engineers.

The trial judge accepted the testimony of plaintiffs’ expert that both the welds and the tube sheet should have been heat treated if the stresses were to be relieved without distortion, and found that Western had not properly performed the stress relief work. He further found that, under the work contract, Western was obligated to “perform each and every act necessary to do the stress relieving work”, and was therefore responsible for its own failure. He rejected Western’s argument that it was obligated, by its job quotation, only to heat treat the tube sheet welds. In this court, Western assigns as error the finding of the court in both respects.

We find no error. The trial court accepted the testimony of plaintiffs’ expert as to the proper method of conducting the stress relieving work. This is a finding based on evaluation of credibility of the witnesses, and we find no error in the ruling of the trial judge in this respect.

As to the second point, we find that the work contract controls. The job quotation is not the contract between the parties, but a preliminary step in arriving at an agreement. The work contract is the final agreement between the parties, and governs their relationship. We think that it clearly requires Western to do everything necessary to perform the stress relief work properly, and to furnish the expertise necessary thereto. Western failed in this respect and thereby breached the contract.

Finally, Western complains of the denial of its third party complaint against its insurer, Security, which denied coverage under its policy and refused to defend. Security claims that Western had no coverage under the policy because of the following exclusionary language therein:

“This insurance does not apply: . . . (k) to property damage to .. . (3) property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control; ...”

The trial judge found as a fact that Western had the care, custody, and control of the boiler and the tube sheet while it was carrying out its work. We find this to be correct as a matter of law and fact. The evidence shows that Western’s personnel performed all of the stress relief work. The law is clear that where the damaged property is the subject of the work performed, it is deemed to be in the care, custody, and control of defendant. See Hendrix Elec. Co., Inc. v. Casualty Reciprocal Exch., 297 So.2d 470 (La.App. 2nd Cir. 1974). We therefore agree with the trial judge that Security’s policy afforded no coverage to Western for the damages in this case.

The judgment appealed from is affirmed, at Western’s cost.

AFFIRMED.