author: MARVIN, Judge.

text:
    RED RIVER VALLEY BANK, Plaintiff-Appellee, v. Billy G. KECKLER, Defendant-Appellant. Billy G. KECKLER, et al., Plaintiffs-Appellants, v. RED RIVER VALLEY BANK, Defendant-Appellee.
    Nos. 14866, 14867.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.

      Sam N. Gregorio and James G. Cowles, Jr., Shreveport, for appellant, Billy G. Keckler, et al.
    C. William Gerhardt, Shreveport, for ap-pellee, Red River Valley Bank.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

In consolidated cases arising out of the bank’s foreclosure by ordinary process of Keckler’s home, Keckler appeals a judgment which dissolved a TRO against the foreclosure sale and which dismissed his action to enjoin the enforcement of, and to annul, the bank’s default judgment under which the sale was advertised.

On appeal, Keckler contends that the note upon which the bank sued was marked paid and returned to him and that the bank had not met its burden of proving otherwise. We find no manifest error in the trial court’s factual determination that the note had not been paid and that the bank erroneously and unintentionally marked the note paid and returned it to Keckler.

The bank answers the appeal and contends that attorney fees should be allowed for the services of its attorney below and here in dissolving the TRO. We affirm the judgment in all respects.

After 1978, Keckler had two secured loans with the bank. The first (Loan No. 89,214) was a $14,000 promissory note dated January 13, 1978, payable in $238 monthly installments. This note was secured by the pledge of a $20,000 mortgage on Keckler’s home. The second (Loan No. 89,218) was a $5,500 promissory note payable in full 90 days after date. This note was secured by a pledge of an $8,000 chattel mortgage on Keckler’s Ford van and by a pledge of the $20,000 house mortgage mentioned above.

On March 1, 1979, Keckler placed, with instructions, a $6,500 check with the bank. The bank was instructed on the deposit slip to deduct from the $6,500, a “pay-off” of $5,030.31 on the van, “payments” of $750.05 which were credited to the $14,000 note (Loan No. 89,214), and a deposit of the remainder ($729.64) in Keckler’s checking account.

The bank’s index card for the $5,500 van loan (No. 89,218) is stamped “PAID IN FULL” and bears a handwritten notation, “Title Released to customer 3-1-79 with paid note.” This latter notation cannot be correct because it was shown at the trial of these cases that the $5,500 van note was yet in possession of the bank.

Before and after March 1, 1979, the bank periodically withdrew from Keckler’s checking account as its balance permitted, the $238 monthly installment payments on the $14,000 house loan (No. 89,214). When Keckler’s checking account was short of funds, a bank officer telephoned Keckler to make a deposit to cover these periodic withdrawals.

When Keckler failed to pay or deposit funds for the payment of the installment payments on the $14,000 note in the latter part of 1980, the bank and its attorney made several written demands on Keckler. On February 21, 1981, the bank brought suit for the balance on the note and sought recognition of its lien and mortgage security under the pledge of the $20,000 house mortgage. The bank also alleged that the $14,000 note had been “lost” or “mislaid” and that advertisement had been made concerning the lost or mislaid note. A default judgment was signed on April 22, 1981, for $6,259.02, plus interest, a delinquency charge, and 25 percent attorney fees. This judgment also recognized the bank’s lien and mortgage arising out of the pledge of the $20,000 house mortgage.

On July 21,1981, Keckler moved to enjoin the pending sale of his house by the bank and later brought his separate action to annul the default judgment. These actions were consolidated and the trial revealed that Keckler was in possession of the $14,-000 house note (No. 89,214) stamped with the bank’s stamp, “PAID IN FULL, MAR 1 1979”.

Keckler asserted that he had had many loans with the bank and that the bank withdrew periodic installments from his checking account to pay some of these loans while he paid other loans from time to time in full either by check or by cash. Keckler claims that after he paid the van note with a part of the $6,500 check on March 1,1979, he returned to the bank and paid Julia Hill, a bank employee, in cash, the approximate $7,000 or $8,000 balance due on the house note and that she gave him the $14,000 note stamped paid in full. Julia Hill categorically denied Keckler’s testimony and introduced bank records of all of the cash transactions of March 1,1979, which reflect that no such transaction or similar transaction occurred on that date. This presents essentially a credibility issue.

We find that it was within the province of the trial court to accept Ms. Hill’s testimony and to reject Keckler’s testimony on this point. Billiot v. Bourg, 338 So.2d 1148 (La.1976); Boatner v. McCrory Corp., 341 So.2d 1174 (La.App. 1st Cir. 1977), writ refused. The bank’s records and other testimony present circumstances from which the trial court could reasonably infer was corroborative of Ms. Hill’s testimony and which support the result below.

We conclude, as did the trial court, that it is more probable than not that the $14,000 house note (Loan No. 89,214) was stamped paid and was given by the bank in error to Keckler when it was the bank’s intention to give him the van note, the full payment of which is not disputed. Under these circumstances, the bank met its burden of proving that the $14,000 note in fact had not been paid and was given to Keckler in error. See Central Bank v. Bishop, 353 So.2d 1109 (La.App. 2d Cir. 1977); Fabian v. Justice, 228 So.2d 739 (La.App. 4th Cir. 1969).

The vice president of the bank agreed that the “arrangement” for attorney fees was the amount stated in the note (25%) and “not more” if the case went to “the Supreme Court” and “not less” if the case was by “default judgment”. The default judgment fixed the attorney fees at 25 percent of the amount of the judgment. The trial court noted that the litigation arose because of the bank’s mistake in giving Keckler the wrong note and that additional attorney fees for the dissolution of the TRO would not be allowed. It has been observed that the use of the word may in Art. 3608, CCP (“Attorney’s fees for .. . the dissolution of a retraining order may be included as an element of damages ... ”) affords some discretion to the courts and that an award of attorney fees is not mandatory in every case. Langevin v. Howard, 363 So.2d 1209 (La.App. 2d Cir. 1978), writ denied.

Under these circumstances, we reject the bank’s contention, made in answer to the appeal, that attorney fees should have been assessed against Keckler for dissolution of the TRO.

At appellant’s cost, the judgment is AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Diana Carpenter GOODE (Jones), Plaintiff-Appellant, v. Robert Harding GOODE, Jr., Defendant-Appellee.
    No. 14868.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Bruscato, Loomis & Deal by Anthony J. Bruscato, Monroe, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

In this latest continuation of a dispute which began in 1976 over custody and visitation with respect to their now 11-year-old daughter, the mother appeals a judgment which orders the child, contrary to the desire of both the mother and the child, to visit with her father for five days after Christmas 1981 and for two weeks in June 1982.

This judgment was signed in September 1981 and has not become moot as to the June 1982 visitation period.

A social worker-child counselor and a psychologist recommended to the trial court that the father’s visitation privileges be terminated because the enforcement is causing the child serious emotional damage, bordering on psychosis. The mother contends the trial court abused its discretion by ordering visitation under these circumstances.

In reasons assigned, the lower court effectively stated that the mother, by allowing her animosity toward the father to continue unchecked and by using the child as a weapon against the father, was abusing the child and was causing the emotional turmoil. The trial court noted that some of the observations of the experts were not to the contrary.

In custody disputes between parents, the paramount concern, as the trial court correctly observed, is the best interest of the child. Visitation is an adjunctive custodial relationship, the control of which lies within the discretion of the trial court. CC Art. 157. Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Johnson v. Johnson, 357 So.2d 69 (La.App. 4th Cir. 1978), writ refused. This discretion includes the weight to be given opinion evidence in determining the degree of visitation, if any, which shall be ordered.

This record shows that the trial judge has been involved in this continuing dispute since December 1978 and is familiar with the dispute and the parties since it arose in 1976. Before the last hearings resulted in the judgment appealed, the trial judge had other hearings on some of the rules relating to visitation which were filed after December 1978 on the dates of February 12 and March 5, 1979; October 28, 1980; and February 17, February 27, and April 16, 1981.

The conclusions and findings of the trial court are reasonably supported by evidence and we do not find that the trial court abused its discretion. For reasons assigned below, which we adopt, and at appellant’s cost, we AFFIRM the judgment appealed.


author: SEXTON, Judge.

text:
    A. C. HAULCY, Plaintiff-Appellant, v. CHRYSLER MOTOR CORPORATION, DODGE TRUCK DIVISION, et al., Defendant-Appellee. Howard BROWN, Plaintiff-Appellant, v. CHRYSLER MOTOR CORPORATION, DODGE TRUCK DIVISION, et al., Defendant-Appellee. Robert A. CANTY, Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee.
    Nos. 14869, 14870 and 14871.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.

      Goff, Goff & Levy by A. K. Goff, III, Ruston, for plaintiffs-appellants, Howard Brown and A. C. Haulcy.
    Richard R. Storms, Monroe, for plaintiff-appellant Robert A. Canty.
    McGlinchey, Stafford, Mintz & Hoffman by C. G. Norwood, Jr., New Orleans, Daw-kins, Coyle & Carter by Robert G. Dawkins, Ruston, for defendant-appellee.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

This is an appeal in a products liability case in which the trial court found that the plaintiffs, Robert A. Canty, A. C. Haulcy, and Howard Brown had failed to carry their burden of proving that a defect existed in the brake system of a 1976 Dodge truck manufactured by the defendant, Chrysler Corporation. We affirm.

On September 10, 1977, Robert A. Canty while operating the 1976 Dodge truck with a 17-foot Crestliner boat and trailer in tow, failed to stop at the intersection of Lincoln Parish Highway 26 and Louisiana Highway 554. The truck traveled through the “T” shaped intersection, collided with a tree and burst into flames. The driver and the two guest passengers (Brown and Haulcy) were all injured. The truck, trailer and boat, as well as all the personal property contained therein, were destroyed in the conflagration. Brown was the most severely injured and was taken to Lincoln General Hospital by a passing motorist. Canty and Haulcy remained on the scene and were questioned by Trooper Gregory C. Gossler of the Louisiana State Police as to the cause of the accident. Canty stated that the brakes failed, thus rendering it impossible for him to stop the vehicle. Trooper Gossler however testified that the brakes were operative. He based this determination on a complete set of skid marks found at the scene of the accident.

Howard Brown and A. C. Haulcy each filed a separate suit against the driver-owner of the truck, Robert A. Canty, and the manufacturer of the truck, Chrysler Motor Corporation, Dodge Truck Division. Mr. Haulcy also named as defendant Fireman’s Fund Insurance Company alleging that Robert A. Canty was an uninsured motorist and as such under the terms of Mr. Haulcy’s contract of insurance with the insurer, Fireman’s Fund Insurance Company (Fireman’s) is liable ex contractu for damages occasioned by the uninsured motorist. Howard Brown also named his insurer, Aet-na Life and Casualty Insurance Company (Aetna), based on the uninsured motorist provisions of the policy of insurance issued to him by Aetna. These claims against the two insurers were settled prior to trial. In each of these suits, the defendant, Canty, filed a Third Party Demand against the manufacturer of the vehicle, Chrysler Motor Corporation, Dodge Truck Division. Robert Canty, in a separate suit named as defendant, Chrysler Motor Corporation, Dodge Truck Division, asserting liability due to the alleged faulty brake system. These cases were consolidated and heard by the trial court which ultimately rendered judgment for A. C. Haulcy and Howard Brown against Robert A. Canty. All claims against Chrysler Motor Corporation were dismissed.

Howard Brown, A. C. Haulcy and Robert A. Canty all appeal the trial court’s dismissal of their claim against the defendant, Chrysler. The quantum of the' damages awarded to the plaintiffs Brown and Haul-cy are not contested on appeal. Haulcy and Brown allege that the court erred in the burden of proof it required the plaintiffs to bear with regard to the issue of the defective brake system, and also that the court erred in giving more weight to the testimony of expert witnesses than to the “uncon-tradicted” testimony of the parties. The plaintiff-appellant Canty alleges as his sole specification of error the trial court’s acceptance of expert testimony over that of the plaintiff who was an “eyewitness.”

All appellants contend that their testimony at the trial was uncontradicted and therefore was conclusive as to the determination of the facts. However, we find, as did the trial court, that the testimony of the plaintiff, Robert Canty, was contradicted on the all-important issue of whether the brakes were operative. Canty testified that at a distance of approximately 100 yards from the intersection he applied his brakes and got no response from them. Trooper Gossler of the Louisiana State Police testified that he found two sets of skid marks 24 feet and 18 feet in length near the intersection where the accident occurred. He testified that these skid marks were made by the front and rear tires of the Canty vehicle, and that the existence of such marks were indicative of a functioning brake system. In answer to questions posed to him on direct examination Canty testified as follows:

“Q. Okay. Now, did you ever — did the brakes ever work to your knowledge?
A. To my knowledge I didn’t think they ever did catch.
Q. Do you have information from somebody else that they might have caught?
A. Well, going back and checking and Trooper Gossler testified that they did catch but at that time, I didn’t think they did at all.”

Thus the plaintiff’s evaluation of what happened was contrary to the physical evidence found at the scene and was further contradicted by the trooper who testified as to the significance of the skid marks. Further contradiction of the plaintiff-appellant’s version of the accident was supplied by expert witnesses for plaintiff and defendant who testified on the subject of the design and operation of the brake system involved.

Plaintiff’s expert, Dr. John Calhoun, a professor of mechanical engineering at Louisiana Tech University was accepted as an expert in mechanical engineering but not as an expert in brake systems. Dr. Calhoun admitted his expertise was limited as follows:

“Q. You don’t hold yourself out to be a specialist in automotive braking systems do you?
A. No, I do not.
Q. With regard to the particular brake system on this pick up truck, do you have any detailed technical knowledge of the matter in which the system operates?
A. Well, I have a technical knowledge of the operation of the individual elements. As far as having participated in a design or a testing program of the elements of a Dodge pick-up truck, no.
Q. So you haven’t tested or had experience in testing any elements of the brake system of the Dodge pick-up truck?
A. I have not.
Q. Have you had any background in testing or evaluating the loss of vacuum, for example, in a power brake system?
A. Not as a formal test, I have experienced this as an individual on my own personal automobile and I’m aware of what the consequences were and since I do have some engineering analysis and training, I knew what the situation was and I would say I have evaluated it perhaps at least more than a lay person would have even though it was just in my personal operation.”

Dr. Calhoun’s evaluation of the accident and its possible causes were based entirely upon the statements of the plaintiff-driver. Dr. Calhoun testified that although he looked at the remains of the vehicle there was not enough of the brake assembly left intact to support a conclusion as to the cause of the collision. However, Dr. Calhoun did testify that in his opinion the booster system within the brake system had failed. He further stated that, due to the existence of the skid marks, the hydraulic brake system was functional. Therefore the loss of braking power allegedly experienced by the driver must have been due to a failure within the booster system. Testimony was further adduced from him to the effect that if the hydraulic system was intact (as Dr. Calhoun determined it was) then, even had the booster malfunctioned the driver could effectively stop the vehicle by increasing the pressure with which he applied the brake.

The defendant, Chrysler Motor Corporation, also supplied an expert witness, Mr. Jerry Boyd. Mr. Boyd is an employee of Chrysler and since 1962 has been engaged in developing and testing brake systems for the defendant’s products. In the course of his employment, Mr. Boyd testified that he had conducted extensive tests on systems similar to the one involved here. Mr. Boyd was accepted as an expert in the field of braking systems. Basically Mr. Boyd testified that there was enough of the braking system intact to rule out a mechanical blockage of the brake system. Mr. Boyd opined that the system was working properly at the time of the accident. He further testified that the plaintiff’s description of the accident was indicative of a “panic stop situation.” Mr. Boyd also agreed that the failure of a booster system would not cause the brakes to be non-operational but rather would merely make the brakes harder to apply. The vehicle could still be stopped in the event of a booster failure. However, Mr. Boyd found no evidence to support a finding that the booster system failed.

To be successful in a product liability claim such as the one presently before the court, the plaintiff must prove: (1) a defect in the product; (2) that at the time of its failure it was in normal use; (3) that it was unreasonably dangerous in that use; and (4) that the injuries were caused by the defect. Daniels v. Albach Company, Inc., 365 So.2d 898 (La.App. 4th Cir. 1978); Davis v. Reliance Elec. Co., 351 So.2d 1238 (La.App. 1st Cir. 1977), writ denied, 353 So.2d 1334 (La.1978); Dixon v. Gutnecht, 339 So.2d 1285 (La.App. 1st Cir. 1976), writ denied, 342 So.2d 673 (La.1977).

Here, the trial court determined that the plaintiffs had not met their burden of proving that a defect existed in the product. Without such a showing that a defect existed, the plaintiffs’ claims for damages must be dismissed. In Farmer v. Ford Motor Company, 316 So.2d 140 (La.App. 2d Cir. 1975), this court was faced with essentially the same factual circumstances presented in this appeal. In Farmer this court upheld the trial court’s determination that the plaintiff’s testimony as to what he experienced with regard to the malfunction of the vehicle’s rear axle was not sufficient to overcome contrary expert testimony. In the instant case the trial court was confronted with the testimony of the plaintiff-occupants of the truck, only one of whom actually operated the brake pedal, to the effect that the brakes failed. Contra to this testimony was the testimony of the expert witness supplied by the defendant who testified that after viewing the remains of the brake system and analyzing the plaintiffs’ testimony, there was no indication that the accident was caused by a design defect or a manufacturing defect. This testimony was corroborated by an independent witness, the state trooper.

The question put to the trial court was one of credibility of witnesses. In a well documented and well reasoned opinion the trial court found there was no showing of a defect and the most probable cause of the accident was driver negligence in failing to apply the brakes timely. The trial court stated:

“The court must in this case as in every case weigh and consider all of the evidence and testimony in the case. At the time of the trial the court was not satisfied that the plaintiffs had discharged their burden of proof as against Chrysler Motor Corporation. In an effort to be sure that all of the evidence and testimony was properly weighed and considered, the court has read the complete record on two occasions and still is of the opinion that the plaintiffs have not demonstrated that it was more probable than not that there was in fact a brake failure on the Dodge Truck.”

The trial court further stated:

“The preponderance of the evidence is that the truck was near the intersection when the driver realized that it was going to be impossible for him to stop the truck. Had the driver started application of the brakes at the point and in the manner that he described it, the evidence is almost conclusive that the hydraulic brakes on the truck would have stopped the truck even with the load of the boat, trailer and passengers before it reached the intersection. This is assuming there was a power or vacuum failure. The preponderance of the evidence is that the accident resulted from the failure of the driver of the car to apply the brakes when he knew or should have known that he was approaching the intersection.”
(emphasis ours)

These conclusions are supported by the record. We do not find that the trial court’s holding is clearly erroneous. Without such a finding of manifest error the lower court will be affirmed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the reasons assigned the trial court’s judgment is affirmed at appellants’ costs.

AFFIRMED.


author: FRED W. JONES, Jr., Judge.

text:
    Trent J. CLARKE, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY LICENSE CONTROL DIVISION, Defendant-Appellant.
    No. 14873.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Wayne R. Crouch, Associate Gen. Counsel, Dept, of Public Safety, Baton Rouge, for defendant-appellant.
    Thompson L. Clarke, St. Joseph, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

The State of Louisiana, through the Department of Public Safety, appeals a district court judgment granting Trent J. Clarke a restricted driver’s license. Finding that the trial court exceeded its authority, we reverse.

In his petition for a restricted driver’s license pursuant to La.R.S. 32:415.1 , Clarke alleged that the court to which his petition was addressed had previously granted him a restricted driver’s license on April 9,1980, but that his driving privileges were revoked on August 1, 1980 because of a reckless driving offense and a violation of a restriction placed by the court on his driving.

At the hearing on the petition, Clarke reiterated that he already had been issued one restricted driver’s license.

La.R.S. 32:415.1(C) explicitly states that a restricted driver’s license may be issued only one time.

Further, even if Clarke had not been issued a restricted driver’s license prior to filing this petition, under La.R.S. 32:415.-1(A)(1), a restricted driver’s license may be issued only after the first suspension or revocation of driving privileges. In re Taber, 393 So.2d 931 (La.App. 4th Cir. 1981); Vice v. Dept. of Public Safety, 393 So.2d 357 (La.App. 1st Cir. 1980); Fusilier v. Dept. of Public Safety, 389 So.2d 803 (La.App. 3rd Cir. 1980). Since Clarke had previously been granted a restricted driver’s license, it is obvious that the August 1,1980 revocation was not his first revocation or suspension.

For these reasons, it is clear that the trial court exceeded its authority in granting Clarke a second restricted driver’s license. Therefore, the judgment appealed is reversed and there is judgment in favor of the State of Louisiana, through the Department of Public Safety, denying the application of Trent J. Clarke for a restricted driver’s license. Appellee is assessed with costs of this appeal.

      . A. (1) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice to the department, and thereupon to determine whether the allegations of hardship have merit. . Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family. .. .

      . C. A violation of the restrictions or a subsequent conviction of any offense involving the operation of a motor vehicle during the term of the restricted license shall result in the extension of the period of suspension, revocation, or cancellation for one year from the date upon which the licensee would otherwise have been able to apply for new license and shall also constitute contempt of court. Suspension, revocation, or cancellation that results from such a violation shall not be subject to appeal as set forth in this Section. The restricted driving privileges for this Section may be allowed to a person only once. (Emphasis added)


text:
    Leroy H. SCOTT, Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellee.
    No. 14882.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.

      Harold D. Vaught, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by John D. Collinsworth, Shreveport, for defendant-appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

Finding that an employee was not acting within the scope of his employment when he committed a battery upon plaintiff, the trial judge sustained a motion for a directed verdict filed on behalf of the employer’s liability insurer and rejected plaintiff’s demands for damages. Plaintiff appealed. Concluding that the trial judge’s factual determination was not clearly wrong, we affirm.

Plaintiff’s testimony was the only evidence presented at the trial dealing with the factual context of this litigation. It revealed that on March 12, 1974 plaintiff, a Shreveport attorney, visited the business premises of Columbia Equipment Company, Inc., in Bossier City, to check on repairs to his tractor; to confer with George Despot, a company official, about legal matters; and to discuss with Mercer, an employee, his wife’s arrearages on a mortgage note held by plaintiff.

Upon learning from Despot that Mercer was the mechanic who had worked on his tractor, plaintiff went back into the shop area to contact that employee, who was pointed out to plaintiff by another worker. Plaintiff testified that he and Mercer began their conversation by discussing the nature of the repairs to the tractor. Deciding to inspect that piece of equipment, the two left the shop and started walking to the lot where the tractor was parked. At that point, plaintiff broached the subject of the delinquent note payments and inquired of Mercer what he and his wife planned to do about the arrearage. Mercer replied that they intended to vacate the mortgaged premises, adding that he knew plaintiff (who was legal counsel for the employer) could get him fired. Plaintiff denied any such intent. Thereupon, according to plaintiff, “out of a clear blue sky” Mercer struck him in the mouth with a can (described as about eight inches high and just smaller in diameter than a standard-sized oil can), causing the injuries for which plaintiff seeks damages.

Although Mercer was originally named as a defendant, he and plaintiff entered into a compromise agreement which resulted in a dismissal of the suit as to that defendant. Trial on the merits as to the remaining defendant, the employer’s liability insurer, was had on October 14, 1981.

An employer is liable for a tort committed by his employee if, at the time, the employee was acting within the scope of his employment. La.C.C. Art. 2320; Miller v. Keating, 349 So.2d 265 (La.1977); LeBrane v. Lewis, 292 So.2d 216 (La.1974).

An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours. Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer’s objectives. Bradley v. Humble Oil & Refining Co., 163 So.2d 180 (La.App. 4th Cir. 1964).

The particular facts of each case must be examined to determine whether the employee’s tortious conduct was within the scope of his employment. Miller v. Keating, supra; Walters v. Sentry Insurance Co., 354 So.2d 1087 (La.App. 2d Cir. 1978).

In the LeBrane case, supra, a supervisory employee stabbed another employee whom the assailant had just fired and was attempting to evict from the employment premises. Finding the employer vicariously liable, the court reasoned:

“The dispute which erupted into violence was primarily employment-rooted. The fight was reasonably incidental to the performance of the supervisor’s duties in connection with firing the recalcitrant employee and causing him to leave the place of employment. It occurred on the employment premises and during the hours of employment.
“In short, the tortious conduct of the supervisor was so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. It can thus be regarded as within the scope of the supervisor’s employment, so that his employer is liable in tort to third persons injured thereby.”

Also see and compare Weysham v. New Orleans Public Service, Inc., 385 So.2d 19 (La.App. 4th Cir. 1980); Posey v. Fabre, 369 So.2d 237 (La.App. 4th Cir. 1979).

In this case, plaintiff stated that, just prior to being struck by Mercer, the two were discussing the delinquent status of the note secured by the mortgage on the property of Mercer’s wife. Plaintiff candidly admitted in his testimony that this had nothing to do with Mercer’s employment. Consequently, we do not find the trial judge committed manifest error in determining that “at the time the blow was struck ... they were discussing personal business” as opposed to an employment-related subject.

Since Mercer’s striking plaintiff was “motivated by purely personal considerations entirely extraneous to the employer’s interests”, his tortious act was not committed within the scope of his employment; his employer is not vicariously liable for that conduct; and the trial judge correctly sustained the defendant insurer’s motion for a directed verdict.

Plaintiff’s argument on appeal that Despot’s consent to plaintiff’s discussion of a personal matter on employment premises with Mercer rendered the employer vicariously liable for Mercer’s tort is without merit. The granting of this permission was apparently for the convenience of plaintiff and not for the furtherance of the employer’s interests. There was no reason for the employer to anticipate that the conversation would provoke a violent reaction by the employee. Therefore, the battery committed by Mercer upon the plaintiff could not reasonably be regarded as “a risk of harm fairly attributable to the employer’s business.”

For these reasons, the judgment of the district court is affirmed, at appellant’s cost.


author: HALL, Judge.

text:
    Michael COCKERN and Charles Cockern, Plaintiffs-Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al., Defendant-Appellee.
    No. 14891.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Rehearing Denied June 17, 1982.
    Johnston, Thornton, Dawson, Hunter & Feinberg by W. Orie Hunter, III, Shreveport, for plaintiffs-appellants.
    Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   HALL, Judge.

On October 3, 1978 one of the plaintiffs was involved in an automobile accident with an uninsured motorist. Plaintiffs filed suit against the uninsured motorist and Government Employees Insurance Company, seeking to recover against GEICO under the provisions of the uninsured motorist coverage contained in an insurance policy issued by GEICO to plaintiffs. GEICO filed a motion for summary judgment contending the policy was canceled prior to the accident. Summary judgment was granted in favor of the defendant insurer and plaintiffs appealed. Finding that the defendant is not entitled to judgment as a matter of law we reverse and remand for further proceedings.

The plaintiffs purchased an automobile in June 1978 and secured insurance on the vehicle with defendant GEICO, effective June 30, 1978. The annual premium of $659 for the insurance was financed with Intech Premium Funding Corporation. A substantial down payment of $198 was made by the plaintiffs with the balance to be paid in monthly installments of $62 beginning July 30. Plaintiffs entered into an agreement with Intech in which they granted Intech an irrevocable power of attorney with full authority to cancel the insurance policy in the event the insured defaulted in the payment of any installment under the premium financing agreement.

On September 28, 1978, at a time when the July and August payments had not been made, Intech mailed a notice to GEI-CO to cancel the policy effective September 30. The cancellation notice was received by GEICO on October 2 and on October 24 GEICO mailed plaintiff a notice of cancellation of the automobile policy effective September 30.

There is no showing that GEICO took any steps to cancel the policy until October 24 when it mailed notice to plaintiff and there is no showing that plaintiff received any notices or warnings from either the premium finance company or the insurance company prior to the accident.

Plaintiffs argue on appeal that they were entitled to 10 days notice of cancellation prior to cancellation of the insurance policy under the terms of LSA — R.S. 22:636.1. That section provides in pertinent part:

“§ 636.1 Automobile liability insurance policies, cancellations
“A. As used in this chapter: ...
“(6) ‘Nonpayment of premium’ means failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit.
“B. A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons: “(1) Nonpayment of premium; or ...
“D. No notice of cancellation of a policy to which Subsections B or C applies shall be effective unless mailed or delivered by the insurer to the named insured at least twenty days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given... . ”

Defendant GEICO argues that Section 636.1 is not applicable to the facts of this case because that section deals with cancellation of an insurance policy by the insurer and in this case the policy was canceled by the insured, through his agent. Defendant GEICO argues that since the policy was canceled by an authorized agent of the insured, LSA — R.S. 22:637 dealing with cancellation by the insured is the applicable statute.

In Armstead v. Aetna Casualty & Surety Company, 322 So.2d 299 (La.App. 1st Cir. 1975), writ denied 323 So.2d 476 (La.1975), the court recognized that an insured’s right to cancel an insurance policy could properly be assigned by the insured to a third party. The court in Armstead was faced with cancellation of an insurance policy financed under a premium finance agreement; however, the court did not reach the issue of whether notice to an insured is required when the insured’s agent requests cancellation because the insured in that case had been given at least 10 days notice prior to cancellation of the policy.

There is a strong public policy, expressed in the Insurance Code, requiring prior notice to the insured of the cancellation of an insurance policy. The purpose of the notice of cancellation to the insured, as recognized in Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (La.1973), is to make known to the insured that his policy is being terminated and to afford him sufficient time to obtain other insurance protection.

As reenacted in 1958, the insurance Code contained Section 636 dealing with cancellation by the insurer and Section 637 dealing with cancellation by the insured, the sections being applicable to insurance policies generally. In 1968, Act 632 added Section 636.1 dealing specifically with cancellation of automobile insurance policies. Section 636.1 permits cancellation of automobile policies for “nonpayment of premium” and defines nonpayment of premium as including failure of an insured to pay premiums whether the premium is payable directly to the insurer or indirectly under any premium finance plan. In order for cancellation of a policy for this reason to be effective, 10 days notice of cancellation is required.

Section 636.1 contains specific provisions dealing with the exact facts presented by this case and requires notice to the insured. Automobile insurance is for the protection of other persons as well as the named insured and the public policy of notice to the insured before an automobile insurance policy can be canceled for nonpayment of premium is just as important where the premium is owed to a premium finance company as where it is owed to the insurance company. Section 636.1 recognizes that fact and deals with it.

The Armstead case correctly held that an insured can assign the right to cancel an insurance policy to a premium finance company, but Section 636.1 provides that such a cancellation for nonpayment of an obligation due to a premium finance company is effective only after 10 days notice to the insured.

There is no showing in this case that the plaintiffs were given notice of cancellation of the policy until after the purported effective date of cancellation and after the accident occurred. The purported cancellation was ineffective and the insurance policy remained in effect through the date of the accident.

Additionally, there is no showing that GEICO actually canceled the policy prior to the date of the accident. Defendant received Intech’s request for cancellation on the day prior to the accident, but there is no showing that defendant did anything to cancel the policy until after the accident.

It is noted that the facts of this case arose prior to the enactment of Act 694 of 1980 by which the legislature added LSA— R.S. 9:3550 regulating insurance premium finance companies. This statute requires 10 days notice from the premium financing company to the insured in the event the company exercises its power of attorney to cancel the insurance policy upon default under a premium finance agreement.

The summary judgment granted in favor of the defendant is reversed and set aside, the motion for summary judgment is overruled, and the case is remanded to the district court for further proceedings. Costs of the appeal are cast to the defendant GEICO.

Reversed and remanded.


text:
    Kay Beatrice JEFFREYS, Individually and as Tutrix of the Minor, Loxi Karin Jeffreys, Plaintiff-Appellant, v. John D. MIXON, et al., Defendants-Appellees.
    No. 14892.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Writ Granted July 2, 1982.

      Bodenheimer, Jones & Simmons by J. W. Jones, Shreveport, for plaintiff-appellant.
    Robert P. Waddel, Shreveport, for John D. Mixon.
    Hudson, Potts & Bernstein by Jesse D. McDonald, Monroe, for Allstate Ins. Co.
    Before PRICE, FRED W. JONES Jr., and SEXTON, JJ.
   SEXTON, Judge.

The plaintiff in this pedestrian-automobile accident case appeals the trial court’s granting of the defendant’s (Allstate Insurance Company) motion for summary judgment. By granting the defendant’s motion, the trial court found that under the terms of the defendant insured’s policy, the owner of the offending automobile was a resident of the defendant insured’s household and therefore the automobile was not covered by the defendant insured’s policy of insurance and thus, defendant insurer is not liable under its policy. We affirm.

On November 9, 1977, the minor, Loxi Jeffreys, was walking on the sidewalk leading to the entrance of a convenience store located at 8315 Wyngate Street, Shreveport, Louisiana. Before reaching the entrance, Loxi Jeffreys was struck by an automobile that had lurched forward and jumped the curb. Loxi was knocked to the ground and severely injured. The automobile was owned by Donna Waldon and at the time of the accident was being operated with the owner’s permission by Kathryn Mixon, the minor daughter of Mr. and Mrs. John D. Mixon. Also at the time of the accident Donna Waldon, who is Mrs. Mix-on’s daughter and Mr. Mixon’s stepdaughter, was physically living in the home of Mr. and Mrs. Mixon. These facts are uncontested.

The contest at the trial level was whether Donna Waldon was a “resident” of the Mix-on “household.” The issue is significant because if Donna is found to be a resident of the Mixon household, no coverage will exist under the terms of the policy of insurance between the defendant insurance company and the defendant insured. However, if Donna is found not to be a resident of the Mixon household, the defendant insurer may be liable under its policy for the accident caused by the insured’s daughter’s operation of a “non-owned” automobile.

Pertinent excerpts from Allstate’s policy of insurance with Mr. Mixon are reproduced as follows:

Section I — Liability Protection
The following persons are insured under this Section
1. The named insured with respect to the owned or non-owned automobile provided the use of such non-owned automobile is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission;
2. Any resident of the named insured’s household with respect to the owned automobile;
******
Definitions of words used under this Section
1. Persons Insured
(a) “insured” means any person or organization listed as insured in this Section;
(b) “named insured” means the individual named in the declarations, and his spouse if a resident of the same household; and
(c) “relative” means a relative of the named insured who is a resident of the same household.
2. Automobiles Covered
(a) “automobile” means a land motor vehicle designed by use principally upon public roads;
(b) “owned automobile” means the vehicle described in the declarations, and, as defined herein, any replacement automobile, any additional automobile, any temporary substitute automobile, and any trailer owned by the named insured; however, this definition shall not apply under any coverage unless a premium is charged for the application of such coverage with respect to such vehicle;
* * ‡ ‡
(f) “non-owned automobile” means an automobile, including a trailer, not owned by, or furnished or available for the regular use of, the named insured or any resident of his household other than a temporary substitute automobile, provided the use thereof is with the permission of the owner;
3. Miscellaneous
******
(e) “residentV or “reside” means, when used with reference to the named insured’s household, bodily presence in such household and an intention to continue to dwell therein. However, the named insured’s unmarried and un-emancipated children, while away from his household attending school or in the military service, are deemed to be residents of his household.

The undisputed facts regarding Donna Waldon’s presence in the Mixon home show that Donna had separated from her second husband after four months of marriage and had moved back into her mother and stepfather’s home, bringing her clothes and belongings with her. It was further revealed that after her separation she could not afford an apartment of her own and had no residence other than with the Mixons. At the time of the accident, Donna had been physically present in the Mixon household for three weeks. Her stay ultimately lasted five months. During the time Donna was physically present in the Mixon home, she shared a bedroom with Kathryn Mixon, she took her evening meals with her mother, stepfather, and stepsister, and she contributed $20.00 per week as “rent.”

The defendant — insurer, Allstate Insurance Company, filed a motion for summary judgment and supporting deposition testimony. Plaintiff filed no opposing affidavits or other opposing evidence. Upon considering the depositions presented and the lack of dispute as to the facts surrounding Donna Waldon’s physical presence in the Mixon home, the trial court granted the defendant’s motion for summary judgment, thus dismissing the plaintiff’s claim. In its “OPINION ON MOTION FOR SUMMARY JUDGMENT” the trial court stated:

“There is no question as to Donna Wal-don’s physical presence in the Mixon household. Therefore, the final question is whether she had an intention to continue to dwell therein. The court is not faced with the situation where a person has moved into a house and, during the first week of staying in the house, a decision must be made as to whether the person intends to continue to dwell therein.
The facts show that Donna Waldon remained in this house for a period of approximately five months and, coupled with the deposition testimony presented, the court rules that she did intend to continue to dwell in the Mixon household. Neither the policy nor the jurisprudence requires that a person intend to dwell in a particular household for any set period of time before meeting the definition contained in this policy. The court does not at this time establish a five month cutoff, nor does the court say that one day would be sufficient. The court simply rules that based on the facts of this case that there was an intention to continue to dwell in the Mixon household.”

The issue on appeal involves the propriety of the use of the summary judgment in this case in which the plaintiff had requested a jury trial. LSA-C.C.P. Arts. 966 and 967, which provide the statutory basis for the application of summary judgment in Louisiana, read as follows:

Art. 966. Motion for summary judgment; procedure
The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. As amended Acts 1966, No. 36, § 1.
Art. 967. Same; affidavits
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or an otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition; the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt. As amended Acts 1966, No. 36, § 1.

More specifically, the plaintiff argues that the determination of Donna Waldon’s status, either resident or nonresident, is a material question of fact about which a genuine issue exists and therefore, the defendant’s motion for summary judgment was improperly granted. The granting of a summary judgment is proper if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to a material fact, and that mover is entitled to a judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Jewell v. Thompson, 386 So.2d 689 (La.App. 3d Cir. 1980).

Thus the crux of the plaintiff’s contention on appeal involves whether the trial court in its granting of the defendant’s motion for summary judgment made a factual determination regarding the issue of Donna Waldon’s status in the Mixon household. The plaintiff contends that the determination of that status is a question of fact and therefore should have been determined by the jury. Hernandez v. Comco Insurance Company, 357 So.2d 1368 (La.App. 4th Cir. 1978), writs denied, 359 So.2d 1305 (1978). In Hernandez the court stated the following:

“... The problem of defining the word ‘household’ has been faced by innumerable courts with no clear or easy resolution. See 19A Words and Phrases Household (West 1970). Ultimately, whether a person is a member of a given household is a question of fact, to be determined after consideration of all the circumstances.”

In the case at bar however, the facts regarding the physical presence of Donna Waldon in the Mixon household, her reasons for being there, her relation to Mr. and Mrs. Mixon, her activities while there and the length of her stay are not disputed. Thus the sole question presented to the trial court on the motion for summary judgment was whether, under the undisputed facts, Donna Waldon’s status was that of a resident of the Mixon household as defined by the terms of the insurance policy held by Mr. Mixon. This involves not a determination of fact, but “rather, an application of uncontested facts to the terms of a contract and thus summary judgment is appropriate. See Labit v. Welch, 375 So.2d 139 (La.App. 3d Cir. 1979), writs denied, 376 So.2d 1271 (1979), wherein the court stated the following:

“... The jurisprudence has clearly established that where the evidence is without dispute and contains every fact material to a final determination, then the ultimate conclusion based upon those facts as to whether coverage of a policy extends to a particular individual or activity is a question of law. White v. Robinson, 367 So.2d 1358 (La.App. 4th Cir. 1979); Hamilton v. State Farm Mutual Automobile Insurance Company, 364 So.2d 215 (La.App. 3rd Cir. 1978), writ refused, 366 So.2d 915 ([La.] 1979). See also Chaisson v. Domingue, 365 So.2d 1115 (La.App. 3rd Cir. 1978).”

See also Hamilton v. State Farm Mutual Automobile Insurance Company, 364 So.2d 215 (La.App. 3rd Cir. 1978), writ refused, 366 So.2d 915 (La.1979), which deals specifically with the issue of the applicability of summary judgment to the determination of residency under the terms of an automobile insurance policy. The court in Hamilton resolved this issue as follows:

“... Whether a person is or is not a resident of a particular place is a question of law and fact. Taylor v. State Farm Mutual Automobile Insurance Co., 248 La. 246, 178 So.2d 238 (1965). Once all the facts are marshaled, and it is made to appear that the marshaled facts are without dispute, then the ultimate conclusion as to residency becomes a question of law, i.e., whether such facts disclose residency of a particular place as a matter of law and within the meaning of the policy of insurance in question. See Ladner v. Andrews, 216 So.2d 365 (La.App. 3rd Cir. 1968) in which this very same issue was disposed of on motion for summary judgment; ...”

We now determine that the defendant has successfully borne his burden under LSA-C.C.P. Arts. 966 and 967, that there is no genuine issue of material fact in dispute contained within the record and that as a matter of law, it is entitled to a summary judgment.

For the assigned reasons, the judgment of the trial court is affirmed and all costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.


text:
    Larry BADGETT et al., Plaintiffs-Appellees, v. Bruce KEITH, Defendant-Appellant.
    No. 14895.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Richard N. Ware, Coushatta, for defendant-appellant.
    Bethard & Davis by J. Q. Davis, Coushat-ta, for plaintiffs-appellees.
    Before PRICE, FRED W. JONES, Jr., and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

The trial judge awarded a husband and wife $5,224.86 for damages sustained as a result of defendant’s firing two shots in the direction of the wife while she was in the community automobile. The only issue presented on appeal is one of quantum, with defendant-appellant asserting that the judgment is excessive and plaintiffs, in their answer to the appeal, contending that it is inadequate.

Finding that the trial court’s award for damages does not constitute a clear abuse of its broad discretion, we affirm.

Although the occurrence of the assault with a dangerous weapon is not at issue on this appeal, the circumstances surrounding the incident have a direct bearing upon what was apparently the most substantial element of damages — the mental distress suffered by the plaintiff wife.

At about six o’clock P.M. on Friday, June 5, 1981, Mrs. Tina Badgett, 21 years of age, drove her Toyota automobile out of Cous-hatta on Highway 71 en route to her rural residence. Immediately in front of Mrs. Badgett and proceeding in the same direction was a blue pickup truck driven by Bruce Keith, also 21 years old. Neither of the parties knew the other. Both of the vehicles turned off of Highway 71 onto the Hickory Grove Road. Since Keith was driving at the speed limit, Mrs. Badgett did not attempt to pass the truck, but followed it at a distance of some six car lengths.

As they proceeded down the Hickory Grove Road, Mrs. Badgett noticed that Keith started driving in an erratic manner, slowing down and then suddenly speeding up. Then, according to Mrs. Badgett, Keith abruptly stopped his truck in the middle of the highway, jumped out of the vehicle with a revolver in his hand, walked toward the stationary Badgett automobile and fired a shot at the front of that car. Mrs. Bad-gett immediately placed her vehicle in reverse and began backing up, preparatory to turning around and fleeing in the opposite direction. As she stopped her car near a ditch, at an angle in the road, Keith fired another shot at the Toyota.

Mrs. Badgett was finally able to turn her automobile around and go back in the direction from which she had come. However, looking in her rearview mirror, she observed that Keith had apparently also turned his truck around and was “tailgating” the Toyota. After traveling about half a mile, Mrs. Badgett lost control of her car and ran into a ditch. Noticing several dwellings in the vicinity, Mrs. Badgett went to one to seek assistance and report the incident. Keith drove on by.

At the trial on the merits, held some four months after the assault, Keith gave this explanation for his bizarre conduct: “I was tired of people following me. Especially that particular car.” He conceded, however, that he did not know who was in the Toyota. Obviously, he should have been able rather easily to discern that he was being followed by a lone female.

Keith admitted having fired his revolver twice, but stated that he pointed it “down toward the ground.” A spent bullet was retrieved from the left rear tire of the Badgett automobile the day after the incident.

Mrs. Sammy Bass, to whose house Mrs. Badgett went for assistance, testified that “there was a pounding on the door, and I answered it and there was a girl, crying, very upset, and trying to tell me that someone had ... shot at her ... she couldn’t control her crying.”

When Larry Badgett, the victim’s husband, arrived at the Bass residence he found his wife “was broken down, crying, screaming to me, you know, about somebody was after her, somebody was shooting at her, you know, that she was scared.”

Trooper Webb, who investigated the incident the following day, found Mrs. Badgett “highly agitated, upset, crying, almost incoherent at times, just nervous. She was on the edge of ... not panic, but on the edge of hysteria, in my opinion.”

Mrs. Badgett was examined by her family physician, Dr. Wyche Coleman, on the day following the incident. Dr. Coleman testified that he found no objective signs of trauma but it was evident to him that she was “quite anxious.” As a consequence, he prescribed medication for her nerves. Although he subsequently treated Mrs. Bad-gett for other complaints, none of these involved the incident of June 5.

Mrs. Badgett, five feet tall and weighing 113 pounds, testified that the incident in question had completely changed her life, explaining:

“I stay nervous and upset ... I cannot stay by myself ... and if I do, if I stay there at night ... I have to keep a gun beside my bed and I never go to sleep. I have to make sure that the doors are locked. Usually ... my husband doesn’t leave me by myself ... I still have nightmares about it now, even though it’s been three or four months. In the day time, even when nothing happens, I remember about it, and I guess you call it flashbacks that I see him ... I see him shooting at me, just for no reason.”

Mrs. Badgett also stated that, after the shooting incident, she became extremely upset when Keith came into the Coushatta bank where she worked as a teller. Two of her co-workers corroborated this, testifying that when Keith came into the bank on one of his regular visits to cash a salary check, Mrs. Badgett became visibly disturbed, fled her teller’s window regardless of the number of customers standing in line, went into another room and started weeping.

Mrs. Badgett’s testimony that prior to June 5,1981 she experienced no problems of this nature was unrefuted.

In addition to the victim’s mental distress occasioned by the shooting incident, there was evidence that property damage to the Toyota (when Mrs. Badgett ran into the ditch) amounted to $650.44.

Further, Mr. Badgett testified that, as a consequence of this assault upon his wife, he missed three days work, losing $309.60 in wages.

Defendant-appellant asserts in his brief that the trial court awarded Mrs. Bad-gett $4,000 for mental anguish and $240 for lost wages, and awarded Mr. Badgett $309.60 in lost wages and $650.44 for property damage to the Toyota. Plaintiffs-ap-pellees also state in their brief that the trial judge awarded Mrs. Badgett $4,000 damages for mental suffering. As we have previously noted, the judgment of the trial court simply awarded damages to Mr. and Mrs. Badgett in the sum of $5,224.86. Nowhere in the record is there a statement by the trial judge breaking this lump sum down into specific amounts for various elements of damages. Be that as it may, the record amply supports the award to Mr. Badgett for his special damages. Assuming that the balance of the judgment — $4,240— is for general damages to Mrs. Badgett for her mental distress, the question is whether the trial judge’s award constitutes a clear abuse of his broad discretion. La.Civil Code Art. 1934(3); Cheatham v. City of New Orleans, 378 So.2d 369 (La.1980); Beck v. Stevens, 373 So.2d 498 (La.1979). Based upon our review of the record and the evidence which is summarized above, we do not find such an abuse of discretion. Therefore, the judgment is affirmed, at appellant’s cost.

      . Since there was no medical evidence of physical injury to Mrs. Badgett resulting from the shooting incident, we assume that this element was not included in the damage award by the trial judge. Be that as it may, under our law recovery may be had for mental anguish, pain and distress even though unaccompanied by physical injury. Johnson v. Best Manufacturing Co., Inc., 263 So.2d 436 (La.App. 1st Cir. 1972); Collins v. Lefort, 210 So.2d 895 (La.App. 1st Cir. 1968).


author: NORRIS, Judge.

text:
    B. R. EMORY, et al., Plaintiffs-Appellees, v. David Lee GARDNER, Defendant-Appellee.
    No. 14898.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.

      Shotwell, Brown & Sperry by George Wear, Jr., Monroe, for plaintiff-appellee.
    Kostelka, Swearingen & Street by C. Daniel Street, Monroe, for defendant-appel-lee.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-in-rule-appellant.
    Before HALL, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

In this proceeding, a court appointed surveyor appeals the trial court’s sustaining of an exception of res judicata to a petition seeking a rule nisi to have his expert witness fee fixed for services rendered in connection with a boundary action.

On May 15,1978, B. R. Emory and others claiming to be owners of certain immovable property located in Ouachita Parish, Louisiana, filed a Petition to be Restored to Possession and to Fix Boundary against David Lee Gardner. Attached to the petition was an order appointing V. A. Hubka, a registered land surveyor, to survey the property in question. Further contained within that order was the provision that the fee of the surveyor be taxed as cost. On September 26,1978, counsel for the parties filed a joint motion and order to have the formerly appointed surveyor removed and James R. McCoy appointed in his stead. Thereafter, the case was fixed for trial and tried oh June 19, 1979.

On July 9, 1979, the trial court rendered written reasons for judgment. Included within those written reasons is the following applicable language:

* * * * * *
The Court-appointed surveyor resurveyed the line and prepared a plat, which is in evidence, showing that the correct line is as contended by Gardner. This plat also shows the “Emory” fence line which is still quite visible.
***** *
Judgment is rendered in favor of Plaintiffs as prayed for except that the cost of the Court-appointed surveyor is to be divided between the parties.
******
The Court regards the surveyor’s statement, which was placed in the record, to be excessive and will schedule a hearing to consider the fixing of his fee. Counsels are to present evidence as to the value of his services.

Subsequently, on August 1,1980, the trial court signed a written judgment which contained the following pertinent provision:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs of these proceedings, except the fee of the court appointed surveyor, are awarded in favor of Plaintiffs, and against Defendant. The fee of the court appointed surveyor is hereby fixed at FIVE HUNDRED AND NO/100 DOLLARS, half of which is to be paid by Plaintiffs, and half of which is to be paid by Defendant.

Subsequently, on August 7, 1980, a motion for new trial was filed by plaintiffs limited to that portion of the trial court’s judgment dividing the cost of the court appointed surveyor between the parties. This motion was heard on November 17, 1980, and on November 19, 1980, the court in written reasons denied the motion stating that “The court felt it necessary to appoint its own surveyor to confirm or deny the finding of the defendant’s surveyor.”

No appeal was taken from the judgment, and that judgment became final prior to July 13,1981. There is nothing of record to show that the court appointed surveyor, James McCoy was ever given notice of judgment, nor is there anything of record reflecting that any type of hearing was held by the court regarding the fixing of his fee.

On July 13, 1981, McCoy filed a petition seeking the issuance of a Rule Nisi directed to all parties ordering them to show cause why petitioner’s fee and expense in the amount of $6,627.50 should not be fixed as costs herein and paid according to law.

On November 9, 1981, defendants in rule filed peremptory exceptions of res judicata contending that in the judgment of August 1,1980, the fee of plaintiff in rule was fixed by the Court in the amount of $500, and that no appeal was taken from this judgment making it final. It was further contended that when the court fixed the fee, it had before it the bill of plaintiff in rule as well as the bill of the surveyor who initially surveyed the property for defendant Gardner when he purchased it. It was further contended that the issue had already been decided by the court, no appeal had been taken, and the judgment had become final thereby causing the judgment to have acquired the authority of the thing adjudged, making it res judicata.

After a hearing on this exception, the court ruled in favor of exceptors. It is from this judgment that McCoy appeals assigning only one error, the trial judge’s sustaining of the Exceptions of Res Judica-ta.

It is the contention of McCoy that the judgment rendered as between the original parties is not res judicata as to appellant because he was not a party to that judgment.

Louisiana Civil Code Article 2286 contains the applicable law relating to res judicata. It provides:

The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

The Louisiana Supreme Court in Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978) stated as follows:

See 51 Tul.L.Rev. 611 (1977); Maloney, Preclusion Devices in Louisiana; Collateral Estoppel, 35 La.L.Rev. 158 (1974). Louisiana legislative authority for res ju-dicata establishes a presumption of correctness and precludes relitigation of the object of the judgment only when there is (1) an identity of the parties, (2) an identity of “cause” and (3) an identity of the thing demanded. C.C. 2285-2287, 3556(31); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Sliman v. McBee, 311 So.2d 248 (La.1975); Scurlock Oil Co. v. Getty Oil Co., 294 So.2d 810 (La.1974). The absence of any of these identities is fatal to a plea of res judicata.
There exists an identity of parties whenever the same parties, their successors, or others appear so long as they share the same “quality” as parties. See Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965); 2 Planiol, Traite Elem-entaire de Droit Civil, No. 54A(4) at 35-36 (11th ed. La. State L.Inst. trans. 1959). (Emphasis added.)

Furthermore, because res judicata is stricti juris, a second suit is not barred where there is any doubt about the applicability of Article 2286. Scurlock Oil Co. v. Getty Oil Co., 294 So.2d 810 (La.1974).

Any doubt as to the concurrence of identities must be resolved in favor of maintaining the action. Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965). This identity of parties refers not to physical identity but to identity of “quality.” See John A. Dixon, Jr., et al, “Res Judicata in Louisiana since Hope v. Madison,” 51 Tul.L.Rev. 611 (1976).

Applying the foregoing to the instant case, we conclude that McCoy was not a party to this litigation. He was a court-appointed surveyor; therefore, he became an officer of the court from the time of his qualification until the rendition of the final judgment in this case. La.Code of Civil Procedure Art. 373. Appellees’ argument that McCoy was a party to the lawsuit is clearly without merit.

We also find that in this case that the object of the demand in the petition filed by McCoy differs from the object of the demand in the earlier petition filed by the original plaintiffs. The Louisiana Supreme Court has equated “object of the demand” with the kind of relief sought in Quarles v. Lewis, 226 La. 76, 75 So.2d 14 (1954). Quarles states the general rule that:

... res ad judicata can not apply when the demand is not the same as that previously made, even though it might have been asserted in the original action.

In Grain Dealers Mutual Ins. Co. v. Hardware Dealers Mutual Fire Ins. Co., 196 So.2d 650 (La.App. 1st Cir. 1967), the appellate court reversed the sustaining of an exception of res judicata in a case where one insurer sued another insurer for costs in a subsequent action after the court held that the costs of the earlier suit in which both parties were defendants should be paid equally between them. The issue presented to the court was whether or not the provision of the earlier judgment pertaining to costs was final and determinative of the issue between the parties. In concluding that it was not final and determinative, the court stated:

It has been repeatedly held that the formula contained in the above article is stricti juris and each element of the formula must be present in order to maintain a plea of res judicata. Lafayette Memorial Park, Inc., v. Trinity Universal Insurance Co., La.App., 191 So.2d 318; Durmeyer v. Steiffer, 215 La. 585, 41 So.2d 226; Woodcock v. Baldwin, 110 La. 270, 34 So. 440; Shell Oil Co. v. Texas Gas Transmission Corp., La.App., 176 So.2d 692. That formula requires there must be identity in the two suits as to the thing demanded, the cause of action, and the parties involved. The present action does not involve the same parties. There has been a complete realignment in the position of litigation between the two parties involved herein. The cause of action in the prior suit was one on tort and insurance coverage. In addition, the object of demand here is totally different from that of the plaintiffs in the prior suit. Accordingly, the exception of res judicata must fall.

That analysis is equally applicable to the instant situation and bolsters our conclusion that the trial court was clearly wrong in sustaining the exceptions of res judicata. The cause of action in the original suit is an action to fix a boundary. The cause of action in McCoy’s petition against the plaintiffs and the defendant in the original suit is to fix a reasonable fee for the surveyor. Thus, there is presented to the court in this instance a complete realignment of parties as well as a different identity of the thing demanded. Because all of the requisite elements of res judicata are not present, the exception must be overruled.

Accordingly and for the foregoing reasons, the judgment of the trial court is reversed, and judgment is rendered overruling the exceptions of res judicata and remanding this matter to the trial court for proceedings consistent with this opinion. Costs of this appeal are cast against appel-lees.

REVERSED, RENDERED, and REMANDED.

      . This matter was earlier before this court on a motion to dismiss appeal which was denied.

      . La.Code of Civil Procedure Art. 373 provides as follows:
      An expert appointed by a trial court to assist it in the adjudication of a case in which his special skill and knowledge may aid the court is an officer of the court from the time of his qualification until the rendition of final judgment in the case.

      . We note that Quarles v. Lewis has been overruled by Ugulano v. Allstate Ins. Co., 367 So.2d 6 (1978) only to the extent that it recognizes collateral estoppel as applying in Louisiana.