text:
    John A. FAUST and Ingrid Piller v. John MENDOZA, et al.
    No. 14687.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Dennis R. Whalen, Baton Rouge, for plaintiffs-appellants John A. Faust and Ingrid Piller.
    Jack M. Alltmont, Shirley Nassif Kopsa, New Orleans, for defendants-appellants The Sonesta Intern. Hotels Corp. and Maryland Cas. Co.
    John Mendoza in pro. per.
    Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellee City of New Orleans.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   LEAR, Judge.

This suit emanates from an incident in which co-plaintiffs, John A. Faust and Ingrid Piller, were allegedly battered and arrested by a City of New Orleans police officer, John Mendoza, at the Royal Sonesta Hotel in New Orleans, Louisiana. Plaintiffs originally filed this suit seeking damages for personal injuries and malicious prosecution, against Mendoza, the City of New Orleans (hereinafter referred to as “City”), Travelers Insurance Company (hereinafter referred to as “Travelers”), allegedly the City’s liability insurer, Sonesta International Hotels Corporation (hereinafter referred to as “Sonesta”), owner of the Royal Sonesta, and United States Fire Insurance Company (hereinafter referred to as “U. S. Fire”), allegedly the liability insurer for Sonesta. Plaintiffs subsequently amended their petition to substitute Maryland Casualty Company (hereinafter referred to as “Maryland”) for U. S. Fire as defendant and alleged insurer of Sonesta. Before trial, Travelers was dismissed as a defendant upon its motion for summary judgment and that ruling of the trial court was not appealed. The City and Mendoza jointly filed an exception of venue, which was overruled by the trial court.

Trial on the merits was held on February 12, 1981. At the close of trial, the trial court rendered judgment in favor of Faust in the sum of $3,315.00 and Piller in the sum of $1,578.00, against Mendoza, City, Sonesta, and Maryland, in solido, for the personal injuries sustained by plaintiffs as a result of the battery. The trial court, however, rejected plaintiffs’ claim for damages based upon malicious prosecution.

From the judgment of the trial court, plaintiffs perfected a devolutive appeal. Subsequently, Sonesta and Maryland filed a cross appeal. Mendoza and the City did not timely appeal and, therefore, the judgment to the extent it is adverse to them, is now final.

The incident which gave rise to the instant suit occurred in New Orleans on February 9, 1975. On that date, the City of New Orleans was in the midst of its annual celebration of the Mardi Gras holiday. Plaintiffs had traveled together from Baton Rouge to New Orleans on the afternoon of the day in question to join in the festivities. Plaintiffs spent the afternoon and part of the night in New Orleans’ French Quarter drinking wine and beer and following parades on foot. The last parade which plaintiffs had been following finished its procession at approximately 10:00 p. m. Faust testified that, at this point, he noticed the ice cream parlor in the Royal Sonesta and, having not had anything to eat all day, he and Piller decided to go in for ice cream.

Once inside the ice cream parlor, plaintiffs got in a line that had queued up to the serving counter. According to Faust, Pil-ler, and Sonia Weaver, one of the workers behind the counter, Faust had his head on the counter, due to his fatigued and intoxicated state. Faust kept his head on the counter and did not move forward when the persons in line in front of him did so. As a result, another of the employees behind the counter requested that Faust move up and place his order. According to the testimony of Weaver, when Faust failed to move up, Mendoza, who had entered the ice cream shop earlier, accosted Faust and told him to move. When Faust failed to move up, Mendoza launched an unprovoked attack upon Faust. This attack culminated in Mendoza’s striking Faust upon the forehead with his “billy” club. During the melee, Piller tried to come to Faust’s aid and was also struck in the head by Mendoza with his “billy” club.

Faust testified that the blow to his head knocked him unconscious. He said that the next thing he recalled, after being struck by Mendoza, was waking up on the sidewalk in front of the ice cream parlor. Faust stated that he, together with Piller, then went back inside the ice cream parlor to get the ice cream cone which he had ordered. He testified at that point he was attacked again. Faust stated that he later found out from Mendoza that it had been Mendoza who attacked him. He testified that he and Piller then were arrested for assault upon a police officer and brought to Charity Hospital and ultimately central lockup in New Orleans.

Weaver did not recall Faust’s being ejected and then coming back inside. Instead, she testified when Faust arose from the floor after being hit, Mendoza then threw him into the glass door causing it to shatter. Both Faust and Piller testified that they had been struck twice with the “billy” club by Mendoza.

Mendoza’s version of the incident was sharply divergent from that of plaintiffs and Weaver. He testified that, on the day of the incident, he was employed as a police officer by the City. During the Mardi Gras season, he would work a twelve hour shift for the City. On the day of the incident, his shift was from 11:00 a. m. to 11:00 p. m. His assignment on that day was to help maintain crowd control in the vicinity of the parades. In addition to and after his regular work shift with the police force, during Mardi Gras, Mendoza was employed by Sonesta to maintain order in its ice cream parlor. Mendoza testified that he would begin his second job at 11:00 p. m., immediately after the end of his work day for the City, and would get off work at 3:00 a. m. While on duty at the ice cream parlor, Mendoza would wear his police uniform.

Mendoza testified that on the day in question he finished his assigned police duties of maintaining crowd control in the vicinity of the parades at approximately 10:00 p. m. Since his job with Sonesta began at 11:00 p. m., he decided to go to the ice cream parlor and wait until it was time for him to begin work. He stated that though he was at the ice cream parlor, he was still on duty as a police officer for the City and had not begun his job with Sones-ta. Mendoza further testified that he had been at the ice cream parlor for approximately ten minutes when he noticed Faust and Piller walk up to the serving counter. He stated that he heard Faust order an ice cream cone, which order he embellished with an obscene adjective. Mendoza testified that, at this point, he tapped Faust upon the shoulder and admonished him concerning his choice of language. According to Mendoza, Faust then became very hostile and told Mendoza that “he had spent a lot of money in this town and could do as he damn well pleased.” Mendoza testified that Faust then struck him in his chest for no apparent reason. Mendoza then grabbed Faust and held him. However, Mendoza stated that Piller then began to physically interfere with him and began to try to get his service revolver. He stated at this point he struck Piller with his “billy” club causing her to fall to the floor. According to Mendoza, Faust then tried to attack him again and he was forced to hit Faust in the head with his night stick. He stated that he then immediately arrested plaintiffs for assault on a police officer and brought them to a police car outside, accidentally breaking the glass door to the ice cream parlor in the process.

The affidavits which Mendoza prepared charging plaintiffs with assault upon a police officer were subsequently amended to charge them with battery.

After a trial on the criminal charges, both Piller and Faust were found not guilty.

On appeal, Sonesta and Maryland seek reversal of the trial court’s finding that Sonesta was vicariously liable for the damages sustained by plaintiffs as a result of the battery by Mendoza. Through their appeal, plaintiffs ask this court to reverse the trial court’s rejection of their claim for damages based upon malicious prosecution.

Vicarious Liability of Sonesta:

On appeal, Sonesta and Maryland contend that the trial court erred in finding that they were liable for the battery by Mendoza under the doctrine of respondeat superior. They argue that Mendoza was not acting within the scope of his employment with Sonesta because the battery occurred at approximately 10:15 p. m. and it was undisputed that Mendoza was not scheduled to go on duty at the ice cream parlor until 11:00 p. m. The trial court rejected this argument, finding that Mendoza was performing the exact duties for which he was hired by Sonesta at the time of the battery and, therefore, that he was acting within the course and scope of his employment.

Under Louisiana law, an employer is liable for a tort committed by his employee, if at the time, the employee is acting within the scope of his employment. La.Civ.Code, art. 1920; LeBrane v. Lewis, 292 So.2d 216 (La.1974). The proper test for determining whether or not an employee was acting within the scope of his employment in a situation where the tort occurred before or after the employee’s normal working hours was recently enunciated by our Supreme Court in Daniels v. Conn, 382 So.2d 945, 948 (La.1980) as follows:

“[T]he inquiry is whether the employee’s tortious conduct ‘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.’ ” (Citation omitted.)

In the instant case, Mendoza was performing the exact duties for which he was employed by Sonesta, i.e., maintaining order in the ice cream parlor, and at the exact place at which he was employed to perform them. While the tort occurred approximately forty-five minutes prior to the time he was scheduled to go on duty, Mendoza could give no explanation as to why he was at the ice cream parlor at that time. Moreover, forty-five minutes is not so long a period of time as to, by itself, remove Mendoza from the scope of his employment with Sonesta. Under the circumstances, we find that the trial court was not clearly wrong in finding that “the tortious conduct was so closely connected in time, place and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business.” See Daniels v. Conn, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Malicious Prosecution:

While the trial court found the plaintiffs were entitled to recover for the personal injuries they sustained as a result of the battery, it rejected their claim for damages based upon malicious prosecution. It is apparent from the trial court’s oral reasons that the basis for rejection of that claim is its conclusion that Mendoza acted with probable cause in effecting the arrest and instituting the prosecution by way of affidavit, notwithstanding the fact that plaintiffs were ultimately found not guilty of the charges.

In Hill v. Smith, 399 So.2d 708, this court spelled out the elements of an action for malicious prosecution as follows:

“An action for malicious prosecution lies where there is a concurrence of the following:
“(1) The commencement or continuance of an original criminal or civil judicial proceeding.
“(2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding.
“(3) Its bona fide termination in favor of the present plaintiff.
“(4) The absence of probable cause for such proceeding.
“(5) The presence of malice therein.
“(6) Damage conforming to legal standards resulting to plaintiff.
“Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975); Eusant v. Unity Industrial Life Ins. and Sick Benefit Ass’n. of New Orleans, 195 La. 347, 196 So. 554 (1940).”

In the instant case, Mendoza charged plaintiffs, by way of affidavit, with assault upon a police officer. At the time of the incident, assault was defined under Louisiana Revised Statutes 14:36 as follows:

“Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”

The trial court expressly found that Faust provoked the attack by Mendoza and that Piller attempted to physically aid Faust. The basis for the trial court’s assessment of damages against defendants was its conclusion that Mendoza had responded with excessive force in defending himself against Faust and Piller and in effecting their arrest. Despite its conclusion that Mendoza acted with excessive force, the trial court obviously found that the initial attacks by Faust and Piller constituted attempted batteries, or assaults. Our review of the entire record reveals a reasonable factual basis for these conclusions and further reflects that they are not clearly wrong. See Arceneaux v. Domingue, supra. Under these circumstances, the trial court’s finding that Mendoza had probable cause to institute and pursue the criminal proceedings against plaintiffs is correct. Therefore, the trial court was also correct in rejecting plaintiffs’ claims for malicious prosecution. See Hill v. Smith, supra.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of appeal are to be paid equally by plaintiffs-appellants, John A. Faust and Ingrid Piller, and defendants-appellants, Sonesta International Hotels Corporation and Maryland Casualty Company.

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge. SHORTESS, Judge,

license: Public Domain

text:
    Hughline DUFFY and Louis W. Duffy v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 14714.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      John R. Burgess, Livingston, for plaintiff.
    Samuel Cicero, Baton Rouge, for defendant.
    Before ELLIS, COVINGTON, LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is a suit ex delicto by Louis W. Duffy and his wife, Hughline, against the State of Louisiana, through the Department of Transportation and Development for personal injuries and property damages sustained in a one-vehicle accident. From judgment in favor of plaintiffs, defendant has appealed.

FACTS

On October 30, 1979, between 12:30 and 1:00 p. m., plaintiffs were returning home from a trip to Montpelier where they had purchased approximately 700 pounds of animal feed, which was in the back of their lk ton pickup truck. Mrs. Duffy was driving and her husband was seated on the passenger side. They were traveling on Louisiana Highway 441, a two-lane gravel road, which traversed an open range area. At the time, the road was being graded by the State. The grading operation caused a buildup or ridge of gravel of approximately seven to ten inches in the center of the road. Mrs. Duffy testified that she made this trip every two or three weeks; that every time she made the trip she saw cattle roaming at large; that she was leery of cattle because one had jumped in front of her before; and that she was familiar with the grading operation, i.e., “graded down one side and come back on another and then I guess they go back over the center to spread it.” She further testified that she saw this ridge of gravel in the road both on the trip to Montpelier and on the way back; that the height of this ridge varied along the highway; that she did not see the grader on the way to Montpelier but saw it parked off the road on the way back; that she moved toward the left side of the road after she saw two cows that were to her right in a ditch grazing; also, that her lane had begun to narrow as she approached a cattle guard; that she slowed upon seeing the cattle and slowed further as she turned towards the left lane; that stopping for the cattle would have done no good; that as she turned to the left, her wheels caught in the gravel, causing the steering wheel to pull to the left; and that she pulled the steering wheel back to the right, but the truck went out of control into a ditch and struck a utility pole.

An expert in mechanical engineering testified that if a vehicle turns towards the left and into an uneven ridge of loose gravel in the center of the road, a drag on the left side of the vehicle would be created, causing a sudden heavy pull to the left; and that a strong pull to the right would be necessary to prevent the vehicle from steering violently to the left.

The state employee grading this road testified that he usually made three to four passes over it with his grader; that at the time of the accident he had completed three passes but had not finished his work; that he parked the grader off the road while he took a lunch break; that he had not on this occasion, nor ever, posted signs warning the public of the danger present during grading operations; and that he had never received instructions to post signs.

As a result of this accident, plaintiffs sustained serious personal injuries. Both plaintiffs were taken to Our Lady of the Lake Hospital in Baton Rouge where they were seen by an orthopedic surgeon.

TRIAL COURT

The trial judge based his decision on La. Civ.C. Art. 2317, specifically finding that the buildup of a ridge of loose gravel created an unreasonable risk of harm to others thus causing the highway to be defective. He specifically found that Mrs. Duffy was not driving at an excessive speed, and thus there was no victim fault. Judgment was rendered in favor of Mr. and Mrs. Duffy for property damages in the amount of $6,706.24, and in favor of Mrs. Duffy for general damages in the amount of $7,500.00, and Mr. Duffy for general damages in the amount of $73,250.00.

ISSUES

In appealing, the State argues that the issues on appeal are whether plaintiffs-ap-pellees proved their case by a preponderance of the evidence; whether the negligence of Hughline M. Duffy was the cause of the accident; and whether the trial judge committed manifest error in his factual conclusions and award of damages.

I

As stated above, the trial judge based his decision on La.Civ.C. Art. 2317. The applicability of this Codal Article to the State in cases dealing with road or highway defects has been clearly established. Foggan v. Louisiana Department of Transportation and Development, 402 So.2d 154 (La.App. 1st Cir. 1981); Scott v. State, Department of Transportation and Development, 392 So.2d 482 (La.App. 1st Cir. 1980) writ den. 396 So.2d 921 (1981). To establish a case under this article a plaintiff must prove that: (1) the thing causing the injury was in the custody of the defendant; (2) the thing causing harm was defective, i.e., created an unreasonable risk of harm to others; and (3) that the defective thing caused the plaintiff’s injury. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981); Loescher v. Parr, 324 So.2d 441 (La.1975).

Without question, the accident occurred on La. 441, and this highway was under the care, custody and control or garde of the State. However, did a seven to ten inch buildup or ridge of gravel in the center of the roadway constitute a vice which created an unreasonable risk of harm to others so as to be a defective thing within La.Civ.C. Art. 2317? We are of the opinion that the buildup or ridge of gravel did not create an unreasonable risk of harm to others.

This situation is not analogous to the typical road shoulder case where there is a drop-off. In cases of that nature, the courts have oftentimes stated that the purpose of a shoulder is to allow a vehicle that has momentarily left the traveled portion of the roadway to reenter safely, and that any unusual drop-off prevents a safe reentry. However, this buildup or ridge only existed when the roadway was being repaired. The buildup or ridge is created by the grading operations. Without the normal maintenance work being done, the buildup or ridge would not exist, but yet, the road surface would continue in disrepair. To hold that this buildup or ridge of loose gravel created by the grading operation was a vice that created an unreasonable risk of harm to others would place the State in a “Catch-22” situation. Stated another way, if the State allows the road surface to deteriorate to an unsafe standard, then it would be liable for any accidents under La.Civ.C. Art. 2315 (negligence) or La.Civ.C.Art. 2317 (strict liability), whereas when the State attempts to repair and maintain the road surface, thus creating the buildup or ridge of loose gravel, then it would be liable under La.Civ.C. Art. 2317. Simply stated, the State could not win. The State would be forced to close state highways of this nature to traffic while same are being repaired.

The construction and maintenance of traffic arteries are necessary functions of government. All roads and highways within the state cannot be hard surfaced. Some must be constructed of shell and gravel, and as such must be constantly maintained. The amount of traffic that travels on country shell and gravel roads does not justify the hard surfacing of these roadways, yet these roadways are important to the infrequent travelers that they do carry. Importantly, the buildup or ridge of loose gravel created by the grading operation in maintaining shell or gravel road surfaces is only of a temporary nature, and the probability of an accident being caused thereby is lessened. We are of the opinion that the utility to be derived from road surfaces of shell or gravel far outweighs the risk of harm that might be occasioned by an accident caused by a loose gravel buildup or ridge during grading. Therefore, we find the trial judge in error in relying on La.Civ.C. Art. 2317.

II

Though we have disallowed recovery by plaintiffs under La.Civ.C. Art. 2317, we must still determine whether there is any liability on the part of the State under La.Civ. Art. 2315.

To find the State liable we must first determine that the State owed plaintiffs a duty, that this duty was breached, and that the breach of this duty was the cause in fact of the accident.

It is well established that the State holds the duty to the motoring public to maintain highways in a reasonably safe condition. State Farm Mutual Automobile Insurance Company v. Slaydon, 376 So.2d 97 (La.1979); Brandon v. State, through Department of Highways, 367 So.2d 137 (La.App. 2nd Cir. 1979). In attempting to fulfill its duty to maintain highways in a reasonably safe condition, the State conducted grading operations, which in turn produced a buildup or ridge of loose gravel that could present a danger to an unwary driver. Included within the duty to maintain highways is the concomitant duty to adequately warn motorists of dangerous conditions on highways. State Farm Mutual Insurance Company v. Slaydon, supra, Shively v. Pickens, 346 So.2d 1314 (La.App. 3rd Cir. 1977); Christ v. State, Department of Highways, 161 So.2d 322 (La.App. 3rd 1964); Davis v. Department of Highways, 68 So.2d 263 (La.App. 2nd Cir. 1953). Thus we find that there is a duty to maintain, and while maintaining there is a duty to warn.

The state employee grading this road testified that he did not put out any signs warning of the grading operations, or any other warnings, and that he had never been instructed to post warning signs. Thus the duty to warn was clearly breached.

However, the breach of a duty only results in recovery for plaintiff if the breach is the cause in fact of the injury. Here we have a driver who was familiar with the road, knew that cattle were at large, knew that it was being graded, had traveled this road previously when it was being graded, and knew of the buildup or ridge of gravel. We seriously question of what benefit would a warning sign or signs have been to this driver. What benefit would it have been for a sign to say “CAUTION-ROAD GRADER AHEAD,” or “CAUTION — ROAD WORK AHEAD,” or “CAUTION — LOOSE GRAVEL AHEAD”? A sign sufficient in size to give warning in detail of the danger of attempting to cross a buildup or ridge of loose gravel would either have to be so large or the print so small that the sign would become a menace in and of itself to the driver. Therefore, we reach the conclusion that the absence of warning signs, or the breach of the duty to post warning signs, was not the cause in fact of the accident.

Since we have reached the conclusion that the failure to post warning signs was not the cause in fact of the accident, we pretermit discussion of the remaining issues.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed, and IT IS NOW ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the defendant, State of Louisiana, through the Department of Transportation and Development, dismissing plaintiffs’ suit. All costs both in this court and in the trial court are assessed to plaintiffs-appellees.

REVERSED AND RENDERED.

SHORTESS, J., dissents and assigns reasons.

COVINGTON, J., dissents.

SHORTESS, Judge,

dissenting.

I respectfully dissent.

The majority holds that (1) under C.C. Art. 2317 the buildup or ridge of gravel did not create an unreasonable risk of harm to others; and (2) under C.C. Art. 2315 the breach of the State’s duty to warn of the maintenance work was not a cause in fact of the accident.

In Sinitiere v. Lavergne, 391 So.2d 821 (La.1980) the Supreme Court found that permitting a 3V2- to 4-inch drop-off between the highway and the shoulder of the road to exist was a breach of the duty owed by the Highway Department to the plaintiff. Here, the majority says that a 7- to 10-inch buildup of gravel in the middle of the road did not create an unreasonable risk of harm because it was “only of a temporary nature.” The expert witness, Andrew McPhate, testified that a turn from the left into an uneven ridge of loose gravel in the center of the road, as in this case, would create a drag on the left side of the vehicle causing a heavy pull to the left; and that a strong pull to the right would be necessary to prevent the vehicle from steering violently to the left. His opinion was uncon-tradicted and was used by the trial court in its finding that the State had created an unreasonable risk of harm. I feel that any cause which produces a violent effect on an automobile’s steering should be considered an “unreasonable risk.” I agree with the trial court’s conclusion, which should be given great weight.

The majority also found that the State breached its duty to warn plaintiff, but they go further and hold that the breach was not a cause in fact of this accident, because they question what benefit a warning sign or signs would have been to this plaintiff. It would be speculation for me to anticipate what this plaintiff’s reaction to a sign warning of the dangerous accumulation of gravel ahead of her would have been.

The trial judge said,

The court finds that the plaintiff was not driving at an excessive speed, but was proceeding as a prudent operator. Further, there is specifically no finding of contributory negligence on the part of either plaintiff, as none was proven by the defendant.

I agree with this finding. The majority pretermits this issue, after having found that the State’s fault was not a cause in fact of this accident. I must ask, then: what caused it? I feel that but for the 7- to 10-inch ridge of gravel in the middle of the road and/or the State’s failure to warn plaintiff of its presence, this accident would not have happened.

I would affirm the trial court’s decision.


author: LEAR, Judge.

text:
    Bobby V. REACH, d/b/a Cool Pool Supplies & Services v. Vincent Anthony MATRANGA, et al.
    No. 14715.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rykert O. Toledano, Jr., Covington, for plaintiff-appellee.
    G. Brice Jones, Slidell, for defendants-appellants.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   LEAR, Judge.

This is a suit to recover the costs of materials and enforce a materialman’s privilege. Plaintiff, Bobby V. Reach, d/b/a Cool Pool Supplies & Services (Reach) sold certain swimming pool materials to defendant, Tom’s Champion Swimming Pools, Inc., which were ultimately used in the construction of a swimming pool on property owned by defendants, Vincent and Audrey Ma-tranga (Matranga).

After a trial on the merits, judgment was rendered in favor of plaintiff and against all three defendants, which judgment awarded plaintiff the costs of the materials sold to defendants, recognized the lien and privilege on the Matranga property and other incidental relief. From this judgment the Matrangas have appealed.

In their assignment of error, appellants contend that plaintiff failed to prove delivery and incorporation of the materials into the construction, as is provided for by LSA-R.S. 9:4812.

With regard to the construction of the pool, the parties stipulated that there was no recorded contract nor was any bond required or filed. Under these circumstances, sellers of movables sold to the contractor or sub-contractor that become component parts of the immovable have a claim against the owner and the contractor to secure payment for the movables sold and, further, the claim against the owner is secured by a privilege on the immovable on which the work is performed. LSA-R.S. 9:4802; 4811; 4812.

It is well settled that when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir. 1980); Brooks v. Roussel, 384 So.2d 576 (La.App. 4th Cir. 1980).

In this instant case, the trial court’s findings of fact included the following:

“In late June, 1978, a kit was picked up by the defendant builder from the plaintiff’s business establishment in Baton Rouge and hauled by a U-Haul trailer to the job site on Mr. Matranga’s property in Slidell, where it was used in the construction of the Matranga swimming pool, on or about July 21,1978, additional supplies were picked up at the plaintiff’s business establishment by Mrs. Fedrow-isch and that date delivered to the job site at the Matranga residence in Slidell. These parts were ultimately used in the construction of the Matranga pool.”

These factual findings were clearly supported by the testimony and documentary evidence introduced at trial. Plaintiff testified that he sold the materials to the defendant contractor, through its representative, Mr. Fedrowisch, who was a principal in the defendant contractor’s firm. Mr. Fed-rowisch stated that he did receive the materials at issue and immediately transported them to the Matranga job site in Slidell. He further stated that these materials were then incorporated into the construction of the swimming pool on the Matranga property. Mr. Matranga testified that, although he did not know where these supplies came from, they in fact were incorporated into the pool which was constructed on his property.

The judgment of the trial court is clearly supported by the evidence and we find no error in the trial court’s factual findings.

For the foregoing reasons, the judgment of the trial court is hereby affirmed. The costs of appeal are to be paid by appellants-defendants, Vincent Matranga and Audrey Matranga.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Michael N. SMITH v. DIVISION OF ADMINISTRATION, LOUISIANA INFORMATION PROCESSING AUTHORITY (three cases).
    Nos. 14716-14718.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Michael N. Smith, in pro. per.
    John R. Sheppard, Staff Atty., Div. of Admin., Baton Rouge, for appellee.
    Laura Denson Holmes, Civ. Service Legal Counsel, Dept, of State Civ. Service, Baton Rouge, for George Hamner, Director, Dept, of State Civ. Service.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CHIASSON, Judge.

This is an appeal taken by Mr. Michael N. Smith from the final disposition of his three consolidated appeals before the State’s Civil Service Commission and the Commission’s denial of Requests for Summary Disposition filed by the Division of Administration. Different aspects of these three appeals have been litigated for the past six years without any final determination of any one of them.

The facts of this protracted litigation are set out as succinctly as possible by the Commission as follows:

“Appellant was employed by the Division of Administration, as an Electronic Data Processing Programmer III for the Louisiana Information Processing Authority in the classified service and was serving with permanent status.
“By letter dated April 20, 1976, appellant was advised that he was being removed from his position effective April 26, 1976, for having been on ‘unauthorized leave without pay’ since March 9, 1976. A notice of appeal was filed on May 20, 1976, wherein appellant denied the allegations and alleged that his absence since March 9, 1976 was approved. As relief, appellant sought reinstatement with full back pay. This appeal was docketed as number 1486. By an opinion dated September 10, 1976, the Commission reinstated appellant to his position because appellant had not been furnished reasons for his removal prior to the effective date thereof, which is in contravention of Civil Service Rule 12.3. On September 17, 1976, appellant was reinstated effective April 26, 1976. He was placed in leave without pay status per order of the Commission. On October 8, 1976, appellant filed an application for appeal to the Court of Appeal, wherein he questioned the Commission’s order reinstating him in the status of leave without pay and wherein he raised the issue of back pay. Appellant alleged that after his attempted termination, he tendered himself for duty and therefore was entitled to back pay from the date he tendered himself for duty. This appeal was not processed to the Court of Appeal, but was placed on the Commission’s agenda for the taking of testimony as to the issue of back pay. Meanwhile, by letter dated September 30, 1976, appellant was advised that he was being removed effective October 1, 1976. As cause for removal, appellant is charged with marginal work performance, verbally abusing his supervisor and unauthorized absence from duty since March 9, 1976. By an undated letter received in the Director’s office on October 29, 1976, appellant, through counsel, appealed the termination and alleged that the charges were false, insubstantive and alternatively, not grounds for dismissal. As relief, appellant seeks full back pay and reinstatement. (This notice of appeal- was docketed on December 18, 1980 because it had been previously overlooked.) This appeal was docketed as number 2668.
“On February 14, 1977, the Court of Appeal held that employees of the Division of Administration were in the unclassified service and that the Civil Service Commission was without jurisdiction to review the employment practices of the Division of Administration. In Re Division of Administration, 343 So.2d 277 (La.App.1977) The Louisiana Supreme Court denied writs on May 11, 1977, stating there was no error of law in the judgment of the Court of Appeal. In Re Division of Administration, 345 So.2d 504 (La.1977).
“In response to these court decisions, by an opinion dated June 14, 1977, Docket Number 1486 was summarily dismissed for lack of jurisdiction. On June 27, 1977, appellant filed an application for appeal to the Court of Appeal challenging the June 14, 1977 opinion of the Commission dismissing his case.
“On January 9, 1978, appellant was reinstated to his position as an Electronic Data Processing Programmer III in the unclassified service. By letter dated November 28, 1978, appellant was advised that he was being terminated effective December 8,1978, for having been absent from duty since October 9, 1978 without approval. No appeal was filed challenging this removal. On January 23, 1978, the Court of Appeal affirmed the Commission’s dismissal of appellant’s appeal. Smith v. Division of Administration, 358 So.2d 1291 (La.App.1978) The Supreme Court granted writs and on September 5, 1978, rendered judgment reversing the Court of Appeal and declaring that the employees of the Division of Administration are classified employees. This judgment became final on October 5, 1978. Smith v. Division of Administration, 362 So.2d 1101 (La.1978).
“On April 18, 1980, appellant filed an appeal wherein he complains that Docket Number 1486 has never been concluded because the issue of whether he was entitled to any back pay upon reinstatement in April 1976 has never been resolved. Further, appellant contends that after the Commission ordered him reinstated, he reported for duty, was kept waiting for one hour and then was handed a letter of termination. Appellant alleges he was never paid for the one hour and therefore, was never actually reinstated. This appeal was docketed as number 2421. On May 14, 1980 another letter was received from appellant wherein he seeks to amend the appeal to include a request for back pay for certain periods. “On November 18, 1980, a Motion for Summary Disposition was filed on behalf of the appellee urging dismissal of Docket Number 2421 on the grounds that it is res judicata and that the appeal was untimely.”

The parties were advised by a letter dated November 18, 1980, that a hearing to be set would be limited to a consideration of the Request for Summary Disposition. Thereafter, the parties were then advised that consideration of the Request for Summary Disposition would be heard at the outset of the hearing on the merits set for February 3, 1981.

The Division of Administration filed an additional Request for Summary Disposition on January 8,1981, urging dismissal of all three appeals. By letter dated January 9, 1981, all of the parties were advised that the February 3rd hearing would be limited to a consideration of the Requests for Summary Disposition. Appellant wrote a letter, dated January 13, 1981, opposing these requests.

Director of the State Civil Service Commission, George Hamner, responded to Mr. Smith’s letter of opposition in a letter dated January 14, 1981, reiterating that the February 3rd hearing would be limited to a consideration of the Requests for Summary Disposition and his opposition thereto. Mr. Hamner wrote, “[T]he hearing has been limited to enable the Commission to resolve these legal questions before the parties go to the time and expense of locating witnesses that would be needed for a hearing on the merits. If the Commission denies the requests for summary disposition, this matter will be placed on the April 1981 agenda so that it may finally be concluded.”

A hearing was held on February 3, 1981. Testimony offered by the Division of Administration was received and the Commission, in their opinion dated April 8, 1981, denied the Requests for Summary Disposition and further, rendered a judgment on the merits of all three appeals. The Commission held that Mr. Smith is to be paid back pay for the periods of April 14, 1976 through April 18, 1976 and December 14, 1977 through January 9, 1978, less a set-off for wages earned during these periods.

Specifically, the Commission found that: “Prior to his removal in April 1976, appellant was in leave without pay status. The unresolved issue in Docket Number 1486 is whether appellant tendered himself for duty prior to April 26,1976 and if so, when. Ordinarily, a resolution of these issues would require the Commission to order an evidentiary hearing. However, a hearing on these issues has already been held. On December 13, 1976, testimony was taken before a referee appointed by the Commission. A verbatim transcript of those proceeding appears of record. Based on the refereed proceedings, the Commission concludes that appellant presented himself for work on April 14, 1976 and was not allowed to resume his duties. Therefore, appellant is entitled to be paid for the period April 14, 1976 through April 18, 1976.

In Docket Number 2668, Mr. Smith complained of his October 1, 1976 termination and sought reinstatement with back pay. Mr. Smith was reinstated on January 9, 1978. The Commission found as a fact that the State’s December 13, 1977 check to Mr. Smith in the net amount of $21,018.86 represented back wages for the period of April 19, 1976 through December 13, 1977, rather than a damage settlement. Further, the Commission held:

“Since the appointing authority did not reinstate appellant until January 9, 1978 and did not show any justification for the delay and since they did not place him in any leave status for that period, appellant is entitled to be paid for the period of December 14, 1977 through January 8, 1978.”
“In Docket Number 2421, appellant reiterates the request for pay that he raised in Docket Numbers 1486 and 2668. Additionally, he seeks pay from ‘the time of the October 1976 order [September 10, 1976] until such time . .. that the Division of Administration was taken out from under Civil Service jurisdiction [February 14, 1977] and [f]rom the time .. . which the Division of Administration was replaced under Civil Service jurisdiction [October 5, 1978] until such time as the Commission may rule upon case # 2421’. Appellant clearly is not entitled to all of this relief. He has been paid for the period from April 19, 1976 through December 13, 1977. He was reinstated effective January 9, 1978 and was terminated from that position effective December 8, 1978. This termination was not appealed. Therefore, appellant is not entitled to any additional pay or back pay after January 9, 1978.”

After the Commission’s opinion was rendered, Mr. Smith requested a hearing on the merits of his three appeals. In response thereto, the Commission informed Mr. Smith that the April 8th opinion was a final disposition of his appeals.

Mr. Smith perfected the instant appeal and argues that the Director of the State Civil Service Commission is without the power to limit hearings to a consideration of a Request for Summary Disposition and that the Commission denied him due process, i.e., notice and a full evidentiary hearing, by its ruling on the merits of his three appeals.

The Division of Administration argues that any additional evidentiary hearing would be superfluous and/or moot since Mr. Smith has now been granted all of the relief which he is entitled to in his three appeals.

Procedural due process and its relation to the field of administrative law was discussed by Judge Landry in the case of Hamilton v. La. Health & Human Resources Administration, 341 So.2d 1190 (La.App. 1st Cir. 1976), as follows:

“The procedure by which rights may be enforced and wrongs remedied is subject to state regulation and control, and no one has a vested right to any given mode of procedure, provided constitutional requirements of due process (due notice and opportunity to be heard) are observed. “Procedural due process, in its application to the field of administrative law, is generally regarded as being of greater flexibility than it is in its applicability and relevancy before a strictly judicial tribunal.
* * * * * *
“... it is clear that due process does not necessarily mean a full trial in every instance. Where the constitutional requirements of notice and opportunity to be heard are afforded, due process may be achieved short of a full blown trial in the generally accepted sense.” (Citations omitted)

From the large record before us on appeal, it appears that Mr. Smith’s right to due process of the law has not been violated. Instead, the record shows that Mr. Smith has been afforded his rights to counsel, to cross-examine witnesses and to present witnesses on his own behalf at every step of these proceedings. In light of the broad rule-making power of the Commission, the interest of judicial economy and recognizing the flexibility of procedural due process and its applicability to the field of administrative law, we cannot say that Mr. Smith was prejudiced in any manner by the Commission’s final disposition of his three consolidated appeals, Hamilton, supra.

Additionally, in his Supplemental Brief to this Court he contends that, according to our holding in the case of Retha M. Stafford v. Division of Administration, 407 So.2d 87 (La.App. 1st Cir. 1981) the Commission does not have the right to consider and classify transactions made during the time it did not have the jurisdiction to sanction, approve or control such things, and therefore, the Commission erred in using the State’s 1977 payment to him in determining the back wages due him. Our Supreme Court, by its decision in the case of Smith v. Division of Administration, supra, determined that Mr. Smith has always been a classified employee and, as such, the State Civil Service Commission has always had jurisdiction over him. Therefore, Mr. Smith’s assignment of error lacks merit.

In reviewing the record as a whole, the Civil Service Commission did not err in its factual determinations which are clearly supported by sufficient and competent evidence. Ryder v. Department of Health & Human Resources, 400 So.2d 1123 (La.App. 1st Cir. 1981); Stiles v. Department of Public Safety, Drivers’ License Division, 361 So.2d 267 (La.App. 1st Cir. 1978)

For the reasons expressed herein, and affirming the opinion of the State Civil Service Commission, we hold that Mr. Smith is entitled to back pay for the periods of April 14, 1976 through April 18, 1976, and December 14, 1977 through January 8, 1978, less a set-off for wages earned during said periods. Costs of this appeal are to be paid by Michael N. Smith, appellant.

AFFIRMED.

      . In the Stafford case this court held that the decision in the case of Smith v. Division of Administration, supra, should not be applied retroactively.


author: PER CURIAM.

text:
    M & L INDUSTRIES INCORPORATED v. Robert W. LIRETTE d/b/a Lirette Enterprises.
    No. 14722.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Edmund J. Connely, Houma, for plaintiff and appellee.
    Cleveland J. Marcel, Jr., Houma, for defendant and appellant.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   PER CURIAM.

This appeal was schedule for submission on February 17, 1982, and all attorneys of record were notified. Appellant was not present or represented at that time, nor had any brief or motion for continuance been filed on his behalf. On authority of Rule VII, Section 5(b), this court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    Grandville TENNENT v. Harry PHILLIPS, et al.
    No. 14729.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Grandville Tennent, pro se.
    Joseph P. Macaluso, Jr., Staff Atty., La. Dept, of Justice, Baton Rouge, for defendants-appellees Harry Phillips and Dannie Mixon.
    Conrad S. Adkins, Baton Rouge, for defendants-appellees J. Al Amiss, Sheriff of East Baton Rouge Parish and North River Ins. Co.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   PER CURIAM.

This appeal was scheduled for submission on February 17, 1982, and all attorneys of record and appellant (appearing in proper person) were notified. Appellant was not present or represented at that time, nor had any brief or motion for continuance been filed on his behalf. On authority of Rule VII, Section 5(b), this court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    HERLITZ CONSTRUCTION COMPANY, INC. v. CLEGG CONCRETE, INC.
    No. 14730.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Ralph E. Hood, Baton Rouge, for plaintiff-appellee Herlitz Const. Co., Inc.
    Michael V. Clegg, Paul Marks, Jr., Baton Rouge, for defendant-appellant Clegg Concrete, Inc.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CHIASSON, Judge.

Clegg Concrete, Inc., defendant-appellant, appeals a judgment awarding damages in the amount of $10,802.60 to Herlitz Construction Company, Inc., plaintiff-appellee, for corrective work necessitated by deficient concrete supplied by Clegg.

The facts of this case are thoroughly set forth in our previous opinion. See Herlitz Construction Company, Inc. v. Clegg Concrete, Incorporated, 378 So.2d 1002 (La.App. 1st Cir. 1979). In the earlier case, we found that remedial repairs were necessary due to the fault of the subcontractor; we reduced the trial court’s award of damages to $9,399.83 and we remanded this case to the trial court for the receiving of more evidence on items of damage other than labor and additional concrete.

On remand, the trial court awarded Her-litz Construction Company, Inc., several itemized items of expenses allegedly incurred as a result of the corrective work performed.

Clegg alleges the trial court erred: (1) in awarding the amounts of $1,720.30 and $2,581.68 which represent work performed by Nichols Construction Company and We-bre Steel Company; (2) in awarding $4,083.12 which represents work performed by General Sand & Gravel as an item of damage; and (3) in allowing an associate of A.A. Sollay Corp. to testify as to the business records of that firm.

As to the first assignment of error, Clegg contends that Herlitz failed to mitigate its damages or minimize the cost of the curative work by not cancelling its order for the mats necessary for the heavy equipment to be used in the next phase of construction, once it was discovered that the seven (7) day test results showed a radical deficiency in the strength of the concrete and, therefore, Herlitz is not entitled to collect the monies allegedly due for the work performed by Nichols and Webre. Herlitz argues that its actions in awaiting the test results of two testing laboratories before cancelling its order were reasonable under the circumstances of this particular case and contract. The record shows that it is not unusual for concrete to fail the seven (7) day test and still be of sufficient compressive strength at the twenty-eight (28) day break. Additionally, it was important to all of the parties that the construction project proceed on schedule. This being the case, the delivery of the mats used to support the heavy equipment needed for the next stage of the project proceeded as scheduled up until it was finally determined that the concrete did not meet the requisite compressive strength.

The trial court concluded that, based upon the circumstances of this particular case and contract, Herlitz was not unreasonable in not stopping its order to deliver the mats when it first learned that a problem with the concrete might exist. From a review of the record before us, such a factual determination by the trial judge is supported by reasonably credible evidence and is not manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Therefore, we affirm the trial judge’s awards of $1,720.30 and $2,581.68, which represent the work of delivering and removing mats to the construction site which was performed by Nichols Construction Company and Webre Steel Company, respectively.

As to the second assignment of error, Clegg contends, according to Louisiana Civil Code Article 1934, it, as the good-faith debtor, is liable only for such damages as were contemplated, or as may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. Clegg contends that Herlitz is not entitled to recover the amount paid since the fill sand was not a contemplated item of damage.

Herlitz urges that, according to Civil Code Article 1934, contemplated damages are those which may “.. . fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in contemplation of both parties, at the time they made the contract, as the probable result of its breach.” Stewart Carnal Co. v. Postal Telegraph Cable Co., 4 Orl.App. 194 (1907). Under this reasoning, Herlitz concludes the need for the fill sand to bring the slab up to grade arose naturally from the contract breach.

The record shows that due to the defective concrete, the pouring of the floor slab was delayed while the rest of the project moved along as scheduled. Since the structural steel work had proceeded, the sun was not able to get to the soil to dry it out after the bad weather had set in. A “quagmire of mud” resulted and it became necessary to excavate and replace the mud with fill sand.

The trial court stated in its reasons for judgment that “... In considering what damages might be contemplated, it is necessary to determine the nature of the contract. In construction activities, it is common knowledge that time is of great importance in completing construction work. This court finds that those in the construction field know that the elements must be considered.” We affirm the trial judge’s award of $4,038.12 since we are convinced that the fill sand needed to bring the slab up to grade was an item of damage which was contemplated by the parties at the time of the contract and arose naturally from the contract breach.

Finally, Clegg urges that the trial court erred in allowing Mr. Gary McConnell, an associate of A.A. Sollay Corp., to testify as to the accuracy of the business records of A.A. Sollay and therefore, improperly awarded Herlitz the sum of $550.00.

Clegg contends that Mr. McConnell is not the proper person to testify as to such accuracy since he is not an officer or the treasurer or the custodian of the records. On the other hand, Herlitz argues that regardless of the status of Mr. McConnell with A.A. Sollay, the $550.00 charge was a proper item of damage correctly awarded by the trial court according to the tests delineated in the cases of Trinity Universal Insurance Company v. Normand, 220 So.2d 583 (La.App. 3rd Cir. 1969) and Rue v. State Department of Highways, 376 So.2d 525 (La.App. 3rd Cir. 1979).

In the case of Rue, the Third Circuit aptly stated the following applicable principles:

“Essentially, for a party to prove the amount of damages or expenses to which he is entitled, without the testimony of those who actually performed the services for which the party incurs the expenses, involves, a four-point procedure:
(1) testimony that he has paid the amounts;
(2) corroborated by introduction into evidence of the bills paid;
(3) identification of the bills as items incurred;
(4) by opponent’s default.”

The testimony of Mr. John Bennett reveals that he personally paid the invoice of A.A. Sollay Corp. in his capacity as treasurer of Herlitz. Furthermore, it was established that the amount represented by that invoice was incurred solely as a result of the defective concrete delivered by Clegg and the invoice was entered into evidence without objection. Therefore, the trial court correctly allowed Herlitz the sum of $550.00.

Herlitz answered the appeal and alleges that the trial court erred: in not allowing their $640.50 claim; in not allowing them $1,708.18 for A.M. Franco Company’s redesign work paid by them to Milton H. Wom-ack, Inc., the General Contractor; and, in sustaining opposing counsel’s objection to the introduction of a bill received from A.M. Franco Company for such redesign work.

Herlitz contends that the trial court erred in not awarding it $640.50 which represents the fair rental value for trucks and a pager owned by Herlitz and used during the time that it was doing corrective work necessitated by the bad concrete. The trial court, in denying recovery of such amount, did not find that sufficient evidence was presented by Herlitz to show that such charges constituted a fair and reasonable rental charge.

We find that the trial court properly disallowed Herlitz’s $640.50 claim based on the statement which was introduced into the record. “There is no proof that these notations constitute records kept in the regular course of Herlitz’s business. On the contrary, these materials appear to have been prepared for purposes of trial and lack sufficient reliability to justify admission.” Herlitz Construction Company, supra.

Mr. Bretz, Chief Executive Officer of Contracting for Milton J. Womack, Inc., testified that certain redesign work was necessary as a result of the defective concrete. Herlitz urges that the trial court erred in sustaining opposing counsel’s objection to the introduction of a bill received from A.M. Franco, Co., for such redesign work, on the ground that it is a third-party charge constituting hearsay evidence.

The accuracy of the invoices was not verified at trial. Although some third-party charges have been held admissible in other trials, the reliability of these other records was supported by the testimony of third parties. Therefore, as in our first hearing of this matter, we find that the element of reliability is lacking in this case and therefore, we find the trial court properly sustained opposing counsel’s objection to the introduction of the invoices of A.M. Franco, Co., Herlitz Construction Co., supra, and the cases cited therein.

For the foregoing reasons, the judgment of the trial court is affirmed at the appellant’s costs.

AFFIRMED.


author: SHORTESS, Judge. LEAR, Judge,

text:
    AETNA CASUALTY & SURETY COMPANY v. Jeanne S. NERO. and Christopher KNIGHTEN and Kenneth Knighten v. Jeanne S. NERO, et al.
    Nos. 14736, 14737.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Writ Granted July 2, 1982.

      John W. Perry, Jr., Ben Louis Day, Baton Rouge, for plaintiff-appellant Aetna Cas. & Sur. Co.
    Máxime LaBranche, Baton Rouge, for plaintiffs Kenneth and Christopher Knight-en.
    Ronald J. Coleman, Walton J. Barnes, Baton Rouge, for defendant-appellee Jeanne S. Nero.
    Samuel R. Cicero, Asst. Parish Atty., Baton Rouge, for third party defendant-appel-lee City of Baton Rouge, Parish of East Baton Rouge, in No. 14736.
    A. S. Easterly, III, W. Luther Wilson, Baton Rouge, for defendant-appellee Gulf States Utilities Co.
    Sera H. Russell, III, Baton Rouge, for third party defendant-appellee Arthur Rankin d/b/a Arthur’s Lounge.
    James J. Zito, Asst. Parish Atty., Baton Rouge, for defendant-appellee City of Baton Rouge in No. 14737.
    Before LOTTINGER, EDWARDS, PONDER, LEAR and SHORTESS, JJ.
   SHORTESS, Judge.

On January 1, 1978, Jeanne S. Nero was employed as an operator at South Central Bell Telephone Company in Baton Rouge, Louisiana. At approximately 7:45 p. m., she was released from work and proceeded toward her apartment located at 1080 North 48th Street, in her 1967 Mustang. Near the intersection of 48th Street and Gus Young Avenue, Ms. Nero’s vehicle struck and killed Mack E. Knighten (decedent).

These suits arose from that accident. A motion to consolidate and transfer was denied by the Division I trial judge, but the parties stipulated that the plaintiffs in No. 14,737, “Christopher Knighten and Kenneth Knighten vs. Jeanne S. Nero, et al.,” would be bound by the liability findings in No. 14,736, “Aetna Casualty & Surety Company vs. Jeanne S. Nero.”

After trial on the issue of liability only, the trial judge, on motion of all defendants, dismissed both suits at respective plaintiff’s costs. Aetna Casualty & Surety Company had brought suit as conventional subrogee of Richard A. Knighten and Mack E. Knighten, Jr., descendants of the decedent. Filed in evidence were subrogation receipts wherein each acknowledged receipt of $3,000.00 from Aetna, which provided uninsured motorist insurance coverage on decedent. The plaintiffs in Knighten vs. Nero appeared solely in connection with the liability issue, and all other issues such as quantum and relationship were specifically reserved.

In addition to Jeanne Nero, made defendants in both suits were Arthur Rankin, owner of and doing business as Arthur’s Lounge, City of Baton Rouge, Parish of East Baton Rouge, and Gulf States Utilities.

Testimony at trial developed the following facts: that the decedent arrived at Arthur’s Lounge around 5:30 p. m. on January 1, 1978, with an unknown female companion; that he was intoxicated; that upon being seated a waitress took his order, but before it could be delivered, decedent slumped over and went to sleep, whereupon his companion left; that at approximately 8:00 p. m. decedent, still intoxicated but under his own power, left the lounge after being awakened by Arthur Rankin; that decedent was wearing dark clothing; that shortly thereafter he was struck by Jeanne Nero’s 1967 Mustang; that Ms. Nero was going in an easterly direction on Gus Young Avenue, a straight and level four-lane undivided street, at about 25 miles per hour, proceeding toward her apartment; that as she approached the intersection of 48th and Gus Young, she decided to go to a friend’s house so did not turn on 48th Street; that approximately 84 feet past the eastern edge of the intersection her vehicle struck Knighten; that a chemical analysis of the decedent’s blood indicated he had a blood-alcohol level of .47% by weight at the time of his death; that Gulf States Utilities maintained the street lights on Gus Young Avenue near Arthur’s Lounge for the City of Baton Rouge and Parish of East Baton Rouge; that three street lights were in the vicinity of the accident but two were not lit at the time.

Upon completion of the evidence, all defendants moved for dismissal under the provisions of Article 1810 of the Louisiana Code of Civil Procedure, and the trial judge granted the motion as to all parties. In his oral reasons for judgment, the trial judge indicated that (1) plaintiffs had not borne the burden of proof by a preponderance of evidence to show that the lack of the street lights in the area had in any way contributed to Knighten’s death; (2) there was insufficient evidence to find that Arthur Rankin had contributed to Knighten’s death; and (3) Jeanne S. Nero was not negligent in causing his death.

The only specifications of error assigned by appellants concern the finding that Ms. Nero was not negligent.

We believe, however, that there was sufficient evidence to find Jeanne S. Nero negligent, contrary to the findings of fact of the trial court. On the night of the accident, Ms. Nero was traveling on a straight and level four-lane undivided street which was very familiar to her, as were the surrounding buildings. She had lived in the immediate area for about six years. She had been in Arthur’s Lounge on occasion and admitted that she knew that from time to time drunks congregated in the area. The weather was clear and dry. Her headlights were working properly as was her car. There were no parked cars or other obstructions to block or impede her vision. She was completely sober and was traveling well within the 35 mile per hour speed limit, in the right-hand lane. As she approached the intersection of 48th and Gus Young, rather than turn she continued eastward past Arthur’s Lounge. About this time, a car passed her driven by George Jackson, a friend. Almost immediately thereafter she struck and killed decedent, whom she did not see until after she hit him. She did not brake until she hit him. Her car left from 46 to 50 feet of skid marks in a straight line from the point of collision.

The trial court found that Knighten either walked or ran in front of the vehicle. We believe that this finding was speculative. Considering decedent’s .47% blood-alcohol level, it is highly unlikely that he ran in front of the car. Admittedly, he could possibly have walked or staggered in front of the vehicle. Other reasonable possibilities are that he was either standing relatively still or was just getting up out of the middle of the street when he was struck.

The law of Louisiana concerning the duty of an automobile driver was clearly enunciated in early cases. Rottman v. Beverly, 183 La. 947, 165 So. 153 (1935) at p. 156, held that:

The first duty of those who operate engines or motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger.

Our Supreme Court in Baumgartner v. State Farm Mutual Insurance Company, 356 So.2d 400 (La.1978), re-stated the long-held rule of Jackson v. Cook, 189 La. 860, 181 So. 195 (1938):

... the well-recognized and settled rule that the duty of those in charge of motor cars and engines to look ahead and observe never ceases; that what they can see they must see and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.
181 So. at 197.

The findings of the trial court were clearly wrong with regard to Ms. Nero. Just prior to impact Ms. Nero saw a car pass her and recognized the driver. It was nighttime and while the record is silent as to whether said car was traveling east or west, it is obvious that she momentarily moved her attention away from the roadway to the passing car. This negligent act prevented her from seeing what she should or could have seen. The trial court failed to consider the passing car in its findings of fact, so the conclusion that Ms. Nero was free from negligence was not based on all of the facts and was manifestly erroneous and clearly wrong. Additionally, she was familiar with the vicinity and the occasional presence of drunks in the area. While we do not know how decedent got into the street, and even if we assume he was guilty of contributory negligence, Ms. Nero’s failure to see what she should have seen when there was absolutely no reason not to have seen decedent, imposes liability upon her. Jackson v. Cook, supra., Baumgartner v. State Farm Mutual Insurance Company, supra.

Having held that the trial judge’s findings of fact on these two points are clearly wrong, we reverse those findings. [Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Perniciaro v. Brinch, 384 So.2d 392 (La.1980).] In No. 14,737, judgment is rendered in favor of Aetna Casualty and Surety Company and against Jeanne S. Nero for $6,000.00, together with legal interest from date of judicial demand until paid. No. 14,737 is remanded for further proceedings consistent with these reasons.

In all other respects the judgment of the trial court is affirmed.

All costs of this appeal are taxed to Jeanne S. Nero.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART, REVERSED AND REMANDED IN PART.

EDWARDS and LEAR, JJ., dissent.

LEAR, Judge,

dissenting.

I find the trial court to be eminently correct.


text:
    Maurice STAFFORD v. DOW CHEMICAL CORPORATION and the Aetna Life & Casualty Company.
    No. 14746.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Michael J. Samanie, Houma, for plaintiff and appellant.
    Sidney Patín, Houma, for defendants and appellees.
    Before LOTTINGER, EDWARDS, COLE, SHORTESS and CARTER, JJ.
   LOTTINGER, Judge.

This is a workmen’s compensation suit by Maurice Stafford against his employer, Dow Chemical Corporation (Dow), and its workmen’s compensation insurer, the Aetna Life & Casualty Company. From a judgment maintaining a dilatory exception of prematurity, plaintiff has appealed.

FACTS

We glean the following facts from the record. On October 6, 1976, plaintiff was injured in an automobile accident in the course and scope of his employment while riding in a Dow-owned truck. Plaintiff filed a damage suit against the third party tortfeasor and his insurer, and obtained a judgment on October 26,1977. The defendant insurer, as of December 8,1980, refused to pay plaintiff any further compensation. On March 5, 1981, a satisfaction of judgment was filed of record with the Clerk of Court of Terrebonne Parish.

Defendants did not intervene in plaintiff’s damage suit and do not seek reimbursement for any compensation benefits previously paid by them. They contend that they do not owe any workmen’s compensation benefits until the credit which they are entitled to under the damage judgment has been exhausted. Until that time, they argue plaintiff’s suit is premature.

ISSUES

The issues are whether defendants received notice of the pending tort suit, and whether the trial judge was correct in sustaining the exception of prematurity.

I

It is apparent from the record and briefs in this case that defendants were never served with any formal or official notice of the filing of suit. However, it is abundantly clear that defendants knew of the pending tort litigation, and that the trial judge was convinced that they knew of the pending suit. Therefore, we conclude as a matter of fact that the defendants knew of the pending damage suit, and thus notice or the lack thereof is not an issue. This issue was basically conceded or abandoned in favor of plaintiff during oral argument.

II

Without question the issue presented by the facts of this case is res nova. Simply stated, is the employer entitled to any credit for workmen’s compensation benefits due in the future from a judgment obtained in a damage suit instituted by the employee against a third party tortfeasor when the employer knew of the suit but failed to intervene? The controlling law is found in La.R.S. 23:1101, 1102, and 1103, which provide:

Section 1101:
“When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as third person) other than those persons against whom the said employee’s rights and remedies are limited in Section 1032 of this Chapter, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.
“Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to such employee or his dependents.” Section 1102:
“If either the employee or his dependent, or the employer, brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.”
Section 1103:
“In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six per cent per annum, and shall be satisfied by such payment.
“No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him.”

Previous cases of this court have held that the employer and insurer are not precluded from claiming credit from a judgment received in a damage suit, even though they failed to intervene, when workmen’s compensation liability was consistently denied. Booth v. Travelers Insurance Co., 217 So.2d 483 (La.App. 1st Cir. 1968); Geter v. Travelers Insurance Company of Hartford, 79 So.2d 120 (La.App. 1st Cir. 1955).

Additionally, cases hold that where a damage suit is filed, employer fails to intervene, and the suit is settled rather than going to judgment, then the employer is not entitled to any credit from the settlement. Crabtree v. Bethlehem Steel Corporation, 284 So.2d 545 (La.1973); Compton v. North River Insurance Company, 281 So.2d 848 (La.App. 1st Cir. 1973). For a case where the employer intervened in the damage suit, same was settled, and the employer was denied credit, see Roberson v. Fontenot Petroleum Co., Inc., 322 So.2d 287 (La.App. 1st Cir. 1975), writ refused 325 So.2d 277 (La.1976).

The statutory law, La.R.S. 23:1101, 1102 and 1103, when read together rather than out of context is simple and clear. Section 1101 recognizes the right of the employee and the employer to sue the tortfeasor. If either sues the tortfeasor, he must notify the other, who may then intervene as a party plaintiff in the suit, Section 1102. It must be noted that Section 1102 does not create the right to sue the tortfeasor, but merely requires that notice be given and establishes the right to intervene.

The critical section to the resolution of the issue before this court is Section 1103. Section 1103 provides that “in the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102 . ..,” then the judgment is apportioned. The only way the employee or the employer can become a party plaintiff as provided by Section 1102 is by intervening. To become a party plaintiff other than by intervention is covered by Section 1101. Thus the provisions of 1103 which apportion the judgment, or resolve the conflict where there is not enough money in the judgment to reimburse the employer (or more than enough), only come into play in the event that the employee or the employer intervenes.

It is certainly true that the reasoning behind R.S. 23:1101, 1102 and 1103 is to prevent double recovery on the part of the employee, but the scheme set up by the legislature very clearly provides in Section 1103 that the employer must intervene. The vehicle that the employer must use in claiming credit for compensation benefits already paid or to be paid in the future is intervention in the damage suit. Absent that intervention, we know of no provision in the law which authorizes the employer to refuse to pay compensation or to seek a credit. Thus, the dilatory exception of prematurity is without merit.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed and remanded for further proceedings consistent with the views hereinabove expressed. All costs of this appeal are to be paid by defendants-appellees.

REVERSED AND REMANDED.

SHORTESS, J., dissents and assigns reasons.

SHORTESS, Judge,

dissenting.

I respectfully dissent.

This court has consistently held, in Geter v. Travelers Insurance Company of Hartford, 79 So.2d 120 (La.App. 1st Cir. 1955), and in Booth v. Travelers Insurance Co., 217 So.2d 483 (La.App. 1st Cir. 1968), that when the wage earner obtains a judgment or settlement from the tortfeasor which compensates him fully for damages, neither he nor his dependents may recover additional workmen’s compensation benefits, notwithstanding the employer’s failure to intervene in the tort action, because to permit same would allow double recovery. Factually, the only difference between the instant case and Geter is that in Geter the compensation carrier took the position that no compensation was legally owing by it, so did not intervene. Here, the employer had no reason for failing to intervene; however, the overriding issue in both cases is double recovery.

Here, we are dealing with a final judgment, not a compromise, which has been satisfied and which supposedly compensated plaintiff in full for the damages he sustained in the work-related accident.

Defendants assert that since plaintiff has recovered a money judgment for his damages, they are entitled to a credit for future workmen’s compensation benefits that may be owed. I would hold that plaintiff is not entitled to a double recovery, and a credit would apply against future workmen’s compensation benefits, notwithstanding the employer’s failure to intervene.

      . On the re-argument of this case, appellant’s counsel mentioned for the first time that he settled for less than his judgment because of the insured’s policy limits.

      . A remand is necessary so an evidentiary hearing can be held on the issue of double recovery.


text:
    David J. DANSKY and Jane Calvin Dansky v. Jimmy C. THOMPSON and Arlene Carroll Thompson.
    No. 14755.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Boolus J. Boohaker, Baton Rouge, for plaintiffs-appellants David J. Dansky and Jane Calvin Dansky.
    Russell L. Dornier, Baton Rouge, for defendants-appellees Jimmy C. Thompson and Arlene Carroll Thompson.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CHIASSON, Judge.

David J. Dansky and Jane Calvin Dansky, plaintiffs-appellants appeal the judgment of the trial court which dismissed their suit seeking rescission of the sale of a home and damages arising out of alleged defects in a residence which they purchased from Jimmy C. Thompson and Arlene Carroll Thompson, defendants-appellees.

On May 31, 1977, plaintiffs-appellants purchased a home owned by defendants-ap-pellees for the sum of $95,452.00. The Dan-skys allege the existence of certain hidden vices and defects in the home which were not discoverable by mere inspection and which the Thompsons failed to disclose. Specifically, the Danskys cite as redhibitory defects the presence of rotten French doors in the den area, a rotten ceiling in the cabana or bathhouse, the difficulty in flushing the toilets during periods of rain, the condition of the electrical system, the inadequate drawing capacity of the den fireplace, and the soaking of the carpet in the garden room when it rained. In the alternative, the Danskys seek a reduction of the purchase price.

The Thompsons reconvened against the Danskys for damages allegedly sustained as a result of Mr. Dansky’s inattention, negligence and misrepresentation in the performance of his duties as a real estate agent for the Thompsons and for breach of the purchase agreement.

The trial court, in dismissing the Dan-skys’ suit found that, with the exceptions of the problem of water in the den area and the difficulty of flushing the toilets in wet weather, all of the alleged defects were easily discoverable by simple inspection and, therefore, the Danskys had not carried their burden of proving redhibitory vices or defects.

On appeal, the Danskys urge that the trial court erred: In holding that all of the alleged defects were easily discoverable by a simple inspection; in finding that the Thompsons did not know of the den flooding and of the rotten French doors; and in finding that poor maintenance caused a leak in the den.

The Thompsons answered the appeal and request this Court to reverse the judgment of the trial court denying their reconven-tional demand.

Louisiana Civil Code Articles 2520 and 2521 provide:

“Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice. “Art. 2521. Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

Jurisprudence has held purchasers to the “average prudent man” standard when evaluating reasonable methods of inspection for apparent defects in redhibition cases. Fraser v. Ameling, 277 So.2d 633 (La.1973); Pursell v. Kelly, 244 La. 323, 152 So.2d 36 (1963); and their progeny.

We agree with the trial court’s finding that the alleged defects were easily discoverable by an average prudent man’s inspection.

As the trial court pointed out, the problem with the den fireplace was specifically called to the attention of the Danskys by the Thompsons and the problem with the toilets flushing when it rains is common to all of the surrounding neighborhood and its source is the City-Parish sewer and drainage system and not with the house in question. Therefore, such items cannot be classified as redhibitory defects.

Scant evidence was presented with regard to the condition of the electrical system. The only evidence introduced was to the effect that the electrical panel was hanging off of the outside wall and that it could have been seen by simply walking around the house.

The same is true of the cabana or bathhouse. Betty Thomas, a realtor with C. J. Brown, testified that the cabana was not listed in the market analysis since it was obviously an unfinished project and Mr. Dansky testified that he did not even go inside to inspect it. Such an obviously unfinished project, not inspected by a prospective purchaser, cannot be considered a red-hibitory defect forming the basis for a rescission of the sale.

With regard to the water problem in the garden room, it was the opinion of the trial court that the soaking of the carpet was not being caused by water being forced up through the foundation as contended by the Danskys, but rather that the source of the water is the failure to properly maintain the flat roof. Basing its opinion particularly on the testimony of Mr. B. Lane Grisby, an expert in the field of civil engineering, the Court concluded that the water is leaking from the flat roof into the attic and finding a path into the house down the interior wall. Additionally, the Court further opined that this leakage is being caused by water which is being allowed to pool on the roof because of poor maintenance. “Therefore, such leakage is not a redhibitory defect as the existence of the flat roof was certainly discoverable by the simplest of inspections and the problem has been created in large part by the lack of proper maintenance after the sale to the plaintiffs.”

From the evidence before us, such factual conclusions by the trial court are amply supported by the record and we cannot say that any of the conclusions are manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We also agree with the trial court’s finding that the Thompsons failed to carry their burden of proving that they are entitled to recover any damages from the Dan-skys for any breach of the purchase agreement or for improper performance of services as a real estate agent, and therefore, the trial court properly dismissed the Thompsons’ reconventional demand.

For these reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: SAVOIE, Judge.

text:
    Louie C. SLATON, Jr. v. SENTRY INSURANCE COMPANY.
    No. 14758.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Stephen K. Peters, Baton Rouge, for plaintiff-appellant Louie C. Slaton, Jr.
    Paul Marks, Jr., Baton Rouge, for defendant-appellee Sentry Ins. A Mut. Co. (sued as Sentry Ins. Co.).
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

Plaintiff, Louie C. Slaton, Jr., filed this tort action seeking damages for personal injuries which he incurred in an automobile collision at the intersection of Eighth and Maryland Streets in Port Allen, Louisiana.

In his original petition, plaintiff alleged that the City of Port Allen (hereinafter referred to as the City) was negligent in failing to maintain any traffic control signal or device at the intersection. He named the City’s liability insurer, Sentry Insurance A Mutual Company, (erroneously sued as “Sentry Insurance Company” and hereinafter referred to as Sentry), as the sole defendant. Sentry answered the suit, denying generally the allegations of plaintiff’s petition and specially pleading contributory negligence as an affirmative defense. Subsequently, Sentry filed a motion for summary judgment, contending that, even if the allegations of the petition were true, plaintiff would not be entitled to judgment against it.

After the filing of the motion for summary judgment, plaintiff amended his petition to allege, additionally, that the City was negligent in having an improperly installed and maintained stop sign at the intersection, which led petitioner to believe that he had the right of way. The trial court granted the motion for summary judgment insofar as it related to plaintiff’s claim based upon the allegations of the lack of a traffic control device at the intersection, but maintained plaintiff’s claim based upon the grounds of negligence asserted in his amending petition. The trial court signed a “partial summary judgment” in accordance with its ruling. Plaintiff then timely perfected the current appeal.

Sentry maintains that, conceding all the facts alleged in plaintiff’s original petition to be true, it is entitled to judgment as a matter of law.

It is well established that a party moving for summary judgment has the strict burden of establishing the truth, and showing that any genuine issue of material fact is excluded thereby. Vermilion Corporation v. Vaughn, 397 So.2d 490 (La.1981). Moreover, even if the opposing party does not show that a genuine issue of material fact does exist, the party moving for summary judgment still must bring forth sufficient evidence to show that he is entitled to judgment as a matter of law. La.Code of Civ.Proc. art. 966; Blount v. Exxon Corporation, 395 So.2d 355 (La.App. 1st Cir. 1981). Any doubt as to the existence of a genuine issue of material fact will be resolved against the moving party; and summary judgment will only be granted if reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law on the facts before the court. Thornhill v. Black, Sivalls v. Bryson, Inc., 394 So.2d 1189 (La.1981).

In the instant case, Sentry contends that there is no genuine issue of material fact and that the law is clear that a municipality, or other governmental body, may not be held liable for the absence of a traffic control sign or signal at an intersection. As was correctly noted by defendants in brief, this court recently summarized the law in that regard in Morgan v. Allstate Insurance Company, 393 So.2d 324 (La.App. 1st Cir. 1980). In Morgan, Judge Cole, writing for the court, penned the following language at 393 So.2d 327-328:

In conclusion, an examination of the applicable cases reveal (sic) two basic situations that arise frequently in the missing stop sign cases. On the one hand there is the situation where the plaintiff is traveling on the road normally controlled by the stop sign. The plaintiff is involved in an intersectional collision and sues the public entity for his damages. The courts have refused to allow recovery in this situation, reasoning that plaintiff’s breach of his duty in failing to approach the intersection with due care is the sole proximate cause of the accident. Although the public entity’s negligence may well be a cause in fact the courts obviously feel it inequitable to allow a negligent plaintiff to recover in this situation.
On the other hand there are situations where the plaintiff is traveling on the superior road and rightfully has the right of way. The defendant is traveling on the inferior road with the missing stop sign and proceeds through the intersection without stopping. As to the innocent plaintiff, courts have been willing to find solidary liability on the part of the negligent driver and the negligent public entity. The courts reason that if the stop sign had been in its proper place, the driver would have heeded it. (Citations omitted)

Sentry contends that, based upon the allegations contained in plaintiff’s petition, it is entitled to summary judgment. It filed no affidavits in support of its motion. The only other evidence which might have been considered by the trial court in ruling on the motion was the depositions of the plaintiff and Ms. Linda Gaines. However, nowhere in the petition or the depositions is it established whether or not plaintiff was driving on the favored street. Obviously, under the holding in Morgan, supra, if plaintiff had been driving on the favored street at the time of the accident, then he would have a cause of action against the City, due to the absence of a traffic control device at the intersection. Hence, Sentry failed to meet its burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Blount v. Exxon Corporation, supra.

Judgment of the District Court is reversed and the matter is remanded for trial on the merits.

Appellee is to pay the costs of this appeal. All other costs shall await final disposition of the suit.

REVERSED.


author: ELLIS, Judge:

text:
    FORD MOTOR CREDIT COMPANY v. Booker T. KNIGHTEN and Julia S. Knighten.
    No. 14759.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    E. Wade Shows, Baton Rouge, for plaintiff-appellee Ford Motor Credit Co.
    James C. Dixon, Baton Rouge, for defendant-appellant Julia S. Knighten.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

This is a suit for a deficiency judgment by Ford Motor Credit Company against Booker T. Knighten and Julia S. Knighten, whose automobile had been previously seized and sold by executory process. Julia S. Knighten answered, denied liability on the ground that certain disclosures required by the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq., had not been properly made on the original automobile retail installment contract, and reconvened for damages arising from that alleged failure.

Plaintiff then moved for summary judgment on the principal and reconventional demands, attaching thereto an affidavit attesting to the balance due on the indebtedness. No counter affidavits were filed, and defendants’ counsel waived his appearance at the hearing on the motion. Summary judgment was signed rejecting the recon-ventional demand and giving plaintiff judgment as prayed for on the main demand. From that judgment, Julia S. Knighten has appealed.

Mrs. Knighten bases her argument on the fact that the contract did not specifically disclose the amount of the sales tax. She argues that under 15 U.S.C. § 1605(d)(3), the sales tax must either be included in the finance charge or separately itemized, but that, in this case, the sales tax was included in the cash price of the automobile. It is argued that this does not satisfy the requirements of the law.

Plaintiff answers the above argument by pointing out that Federal Reserve Board Regulation Z, Section 226.4(b)(3), which implements 15 U.S.C. § 1605(d)(3), requires only that “taxes not included in the cash price” be included in the finance charge or separately itemized.

15 U.S.C. § 1605(d)(3) provides:

“d. If any of the following items is itemized and disclosed in accordance with the regulations of the Board in connection with any transaction, then the creditor need not include that item in the computation of the finance charge with respect to that transaction:
“(3) Taxes.”

Federal Reserve Board Regulation Z, § 226.4, entitled “Determination of finance charge”, provides, in part, as follows:

“(a) Except as otherwise provided in this section, the amount of the finance charge in connection with any transaction shall be determined as the sum of all charges, payable directly or indirectly by the customer, and imposed directly or indirectly by the creditor as an incident to or as a condition of the extension of credit, whether paid or payable by the customer, the seller, or any other person on behalf of the customer to the creditor or to a third party, including any of the following types of charges:
“(1) Interest, time price differential, and any amount payable under a discount or other system of additional charges.”
“(b) Itemized charges excludable. If itemized and disclosed to the customer, any charges of the following types need not be included in the finance charge:
“(3) Taxes not included in the cash price.”

Regulation Z, § 226.2(n) provides:

“ ‘Cash price’ means the price at which the creditor offers, in the ordinary course of business, to sell for cash the property or services which are the subject of a consumer credit transaction. It may include the cash price of accessories or services related to the sale ..., and may include taxes to the extent imposed on the cash sale, but shall not include any other charges of the types described in § 226.4.”

It is apparent from the above that the sales tax may be included in the cash price of the transaction, and need not be separately disclosed or included in computing the finance charge. There is no merit to defendant’s argument to the contrary. Our finding herein is consistent with an unofficial staff interpretation of the above regulations, as revealed by FRB letter of April 5, 1979, No. 1338, by Glenn E. Loney, Section Chief, C.C.H. Consumer Credit Guide Reporter, Volume V at 67,030. See also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980), which states that the constructions placed on its own regulations by the Federal Reserve Board, and its staff, are entitled to “considerable respect” and Smathers v. Fulton Federal Sav. and Loan Ass'n, 653 F.2d 977 (5th Cir. 1981), which gives the same respect to unofficial staff opinions.

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

AFFIRMED.