author: BOUTALL, Judge.

text:
    Douglas BROWN v. AVONDALE SHIPYARDS, INC.
    No. 5-281.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 18, 1982.
    Stewart E. Niles, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Avondale Shipyards, Inc. defendant-appellant.
    Donald S. Klein, Klein & Klein, New Orleans, for Douglas Brown plaintiff-appellee.

      Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   ON WRIT OF CERTIORARI

BOUTALL, Judge.

We issued a writ of certiorari to the trial court in order that we may make a determination of the correctness of a ruling permitting only limited cross-examination of an expert witness on his qualifications.

Douglas Brown filed a suit for workman’s compensation benefits against Avon-dale Shipyards, Inc., for disability resulting from his contraction of an industrial disease of silicosis during the scope and course of his employment. At the beginning of the trial, plaintiff produced as its first witness Dr. Morton Brown, M.D., who, without any examination whatever, was immediately tendered by plaintiffs counsel to the court as an expert witness in the field of pulmonary medicine on the basis that he had already been accepted in previous litiga-tions as an expert in that field. Defense counsel announced that he would not agree to accept Dr. Brown as an expert, but the court ruled that he had accepted Dr. Brown as an expert in a previous case and that he would accept Dr. Brown in this case. Defense counsel restated his objection to accepting the doctor as an expert without being able to traverse the qualifications of the doctor. After considerable discussion between counsel and the court, the court eventually ruled that he would accept Dr. Brown as an expert in the field of internal medicine and pulmonary diseases and that he would permit defense counsel to examine Dr. Brown on his qualifications “relative to anything that was not brought up at the last time, any new matters.” The reference to the last time was to a particular case, Charles Zenon v. Johns-Manville Corporation, heard by the judge a month earlier in which this defendant’s co-counsel represented another defendant in that case. The trial judge is in error in his ruling.

Expert witnesses, unlike ordinary witnesses, are permitted to express opinions based upon relevant facts. Their expertise and experience may be of appreciable value in assisting the trial court to arrive at reasonable inferences and conclusions that may be reached upon the proven facts. Obviously this value will vary from instance to instance dependent upon a number of factors that may influence the correctness of the opinions or inferences stated. Our system of adversary trials requires that the opposing party be granted the opportunity to cross-examine a tendered expert witness on the extent of his qualifications and experience, his partiality or interest in the case, and other relevant matters that may effect the value that can be placed upon his opinions.

Additionally we point out that our constitution, Article V Section 10(B) provides that the scope of appellate review extends to both law and facts. The case of Arceneaux v. Dominque, 365 So.2d 1330 (La.1978) requires us to examine the entire record in our appellate review. This we are not able to do where the trial judge acts upon knowledge that he obtained in a different case, the facts of which are not available in the present case. The conclusions of the trial judge must be based on the evidence produced at trial. See for comparison Phillips v. Ursin, 280 So.2d 243 (La.App. 4th Cir. 1973) at p. 248.

We refer the parties to the case of Jackson v. Ed’s Cab Company, et al, 333 So.2d 701 (La.App. 4th Cir. 1976), in which we answered most of the questions posed by the trial court and the attorneys. We quote at page 702:

“(1) Expert witnesses, upon qualification and designation as such, are then and there, granted an important and far reaching franchise not enjoyed by their lay counterparts: they are privileged and encouraged to express opinions based upon their expertise.
(2, 3) To be thus empowered, expert witnesses may first be obliged to respond to interrogation questioning their expertise. This may properly include a well grounded attempt to demonstrate the existence of bias or partiality. It properly follows that if, over a period of time and by reason of a course of conduct, an individual who seeks qualification as an expert has become sufficiently conspicuous or controversial as to have been, himself, the subject matter of prior judicial pronouncements, then those pronouncements may, under appropriate circumstances, form a basis for cross-examination of that witness regarding his qualifications.”

We recognize of course that the cross-examiner may not harrass a witness and that his examination must stay within the bounds of relevancy. It is the function of the trial judge to control the examination as part of the orderly procedure of the court and within the bounds of relevancy and reasonableness.

We set aside and annul the order of the trial court permitting cross-examination limited only to new matters not brought out in other cases. Defense counsel is permitted full cross-examination within the bounds of relevancy and reasonableness in accordance with the views expressed herein.

The costs of these proceedings shall be assessed by the trial court in its final determination of the case.

ORDER SET ASIDE AND ANNULLED.


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    Ernest N. MORIAL v. COUNCIL OF the CITY OF NEW ORLEANS, and Sidney J. Barthelemy, Joseph I. Giarrusso, Frank Friedler, Jr., James M. Singleton, Mike Early, Brod Bagert, Philip C. Ciaccio, Individually and in Their Official Capacities as Members of The Council of the City of New Orleans.
    No. 12164.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 1982.
    Rehearing Denied May 19, 1982.

      Camp, Carmouche, Palmer, Barsh & Hunter (APLC), New Orleans, Donald A. Hoffman, New Orleans, for plaintiff-appellant.
    Arthur A. Lemann,. Ill, and Ronald P. Nabonne, New Orleans, for defendant-ap-pellee.
    Sidney M. Bach, Gerald Wasserman, Clyde P. Martin, Jr., New Orleans, for in-tervenor-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

This appeal concerns the constitutionality of an ordinance enacted by the New Orleans City Council which requires the City to withhold from the salary of any requesting City employee “dues or other expenses to any organization to which he belongs or to which he incurs expense [sic] which are related to his employment with the city

Mayor Morial vetoed the ordinance and by a five to two vote the Council overrode the veto and the ordinance became law. The Mayor then filed this suit against the Council for a declaratory judgment that the law is unconstitutional because it violates the doctrine of separation of powers mandated by the Louisiana Constitution and the New Orleans Home Rule Charter. The Police Association of Louisiana Local 253 and the Public Employees Association filed interventions in support of the ordinance. The parties entered a joint stipulation of facts and cross-motions for summary judgment were filed. In written reasons the Trial Judge noted that under the City Charter employee compensation is a legislative responsibility and held that the formulation of a policy permitting deductions is no less legislative and the Council’s ordinance was therefore constitutional.

Plaintiff asserts that LSA-R.S. 42:457 provides the “employing authority” with discretion over payroll deductions and the New Orleans Home Rule Charter should be interpreted as designating the Mayor or his representative as the “employing authority” for City employees. Plaintiff argues that if the legislature had intended the City Council to have this power, the statute would have used the term “governing authority” rather than “employing authority”. Further, since the right to employ City workers (except the Council and its staff) is vested in the executive branch, the ordinance is in contravention of LSA-R.S. 42:457 and unconstitutional. Plaintiff also points out that the Council does not set compensation, but rather adopts or rejects recommendations of pay plans and the Council’s responsibility is appropriating funds rather than setting salaries. Hence, the Trial Court’s reasoning is based upon a faulty premise.

Defendants submit that for years the City permitted unrestricted payroll deductions, but in March, 1979 the Director of Finance advised that certain payroll deductions would be discontinued because of a reduced budget. That prompted the Council to pass this ordinance which requires the City to make requested deductions unless the organization bears “. . . no substantial relationship to the employee’s wages, hours, grievances, working conditions, duties, or rights as a city employee.” The ordinance permits the City to collect $5.00 a month per twenty-five or fewer individual charges for each specified organization.

In answer to plaintiff’s contention that the Mayor is the “employing authority”, defendants reason that if the legislature intended “employing authority” and the Mayor to be synonymous it would have used the term “appointing authority”. Defendants assert the term “employing authority” refers generally to the City as an entity and the question is whether the executive or legislative branch, or both, have the discretion to refuse/permit payroll deduction privileges. Defendants conclude that upon passage of this ordinance City employees have a statutory right to take advantage of this privilege by paying a nominal charge to the City and any contrary regulation by the Mayor (plaintiff) would be subordinate to the ordinance.

Prior to the 1974 Constitution it was well-settled that municipal corporations were creatures of the state and possessed only specific delegated powers. Some municipal corporations derived all their powers and were shaped by the legislative process, while others were restricted to legislation permitted by the Constitution. Bradford v. City of Shreveport, 305 So.2d 487 (La.1974). The City of New Orleans was of the latter type in that its Home Rule Charter was founded on a constitutional grant, specifically art. XIV, § 22 of the 1921 Constitution, as amended by Act 551 of 1950, and became effective May 1, 1954.

The 1974 Constitution reversed this philosophy: rather than limiting the powers of local governments to those expressly delegated by the Constitution or legislative, “... [i]f authorized by their home rule charter . .., the local governments are authorized to exercise any power necessary, requisite or proper for local government— providing that such powers are not (a) inconsistent with the 1974 constitution or (b) denied them by general legislation. Art. 6, Sections 4 (pertaining to the New Orleans Charter), 5(E), 7(A).” City of Shreveport v. Kaufman, 353 So.2d 995 (La.1977) at p. 997. (Emphasis in Original) However, City of Shreveport v. Curry, 357 So.2d 1078 (La.1978) did not allude to the 1974 constitutional changes and relied on the earlier rule. 357 So.2d at 1080.

Our initial concern is whether this matter is subject to “local” treatment. If the ordinance conflicts with or is inconsistent with the Constitution or if the ordinance “infringe(s) the spirit of state law or (is) repugnant to the general policy of the state”, then the ordinance is unconstitutional. National Food Stores of Louisiana, Inc. v. Cefalu, 280 So.2d 903 (La.1973) at p. 907 citing City of Minden v. David Brothers Drug Company, 195 La. 791, 197 So.2d 505 (1940). LSA-R.S. 42:457 does not specify nor indicate an attempt by the legislature to preempt the area of payroll deductions. The statute makes reference only to dues for labor organizations with the qualification that the employing authority may elect whether or not to make such deductions; therefore, we conclude that local regulation is permissible if it is not in conflict with the Home Rule Charter or otherwise unconstitutional.

The statute is silent on who is the “employing authority” with discretion to authorize deductions. We disagree with plaintiff that the formulation of a “dues checkoff” policy is reserved exclusively to the executive branch. To the contrary, it appears the legislature intended to leave this decision to the governmental “unit” and not dictate which branch is to make the decision. We find no statutory prohibition against the Council enacting this ordinance.

Having found that preemption was not intended by the statute and that “employing authority” is not a mandate by the legislature to leave this decision to the May- or but rather a directive to the local entity, then the last question is: who has the power to authorize payroll deductions under the City Charter which does not clearly define legislative or administrative functions.

The “Summary of the Preliminary Draft of the Proposed Home Rule Charter” gives a general description of the city government. “[I]t makes the Mayor solely responsible for the administration of the government. This centralizes executive authority in one elected official, and the people can hold him accountable for the performance of the departments of government.” (P. 5). “... [T]he Mayor is made the administrative head of government and the Council is restricted to legislative and policy functions.” (P. 6) “The Council . .. would be a legislative body, and would be responsible for determining policy and expressing it by passing the laws of the City, by considering and passing the budget appropriation ordinance, and for investigating the administrative actions of the Mayor.” (P. 7)

The Charter clearly intended a separation of powers. Sec. 3-101(1) provides:

“Legislative Powers. (1) All legislative powers of the City shall be vested in the Council and exercised by it in the manner and subject to the limitations hereinafter set forth." (Emphasis Supplied)

Sec. 4-101 provides:

“Executive Powers. All executive and administrative powers of the City shall be vested in and exercised by the Executive Branch.”

Apparently the Council has specific limitations, whereas, in contrast Sec. 4-206 enumerates specific executive powers.

Defendants and intervenors urge Sec. 3-112(5) in support of their position because the ordinance establishes a “charge for services rendered” and grants a privilege:

(5) “Proposed ordinance on any of the following specified subjects can be adopted only at a regular meeting of the Council and shall not be adopted until at least twenty-one days after
(a) Levying any tax or excise .. .
(b) Imposing any license, requiring any permit, establishing any charge for services rendered, ...
(c) Zoning or rezoning, ...
(d) Alienating any immovable property; granting any servitude, franchise, or privilege.” (Emphasis Supplied)

We feel Sec. 3-118 of the Charter which authorizes the Council to adopt pay plans is sufficient to establish the Council’s authority to enact this ordinance authorizing payroll deductions. We also note that Sec. 4-107 supports this conclusion by subordinating executive regulations to Council ordinances “affecting the public and necessary to the performance of the functions assigned to such office or department”.

Plaintiff cites City of Charlotte v. Local 660, International Association of Firefighters, 426 U.S. 283, 96 S.Ct. 2036, 48 L.Ed.2d 636 (1976) which involved an equal protection challenge to the city’s refusal to withhold union dues. The city had determined it would withhold only for programs of general interest in which all city employees could “without more” participate which excluded withholding for unions because union membership was a prerequisite. The Supreme Court held this was not an arbitrary line so devoid of reason that it violated equal protection. In Charlotte, there was no contract, statute or ordinance involved and it is not applicable to this case.

We therefore hold that Ordinance Number 828 M.C.S. (Code of the City of New Orleans), Chapter 2, Sec. 2-11.1 is constitutional and the District Court judgment is affirmed with plaintiff/appellant to pay all costs of appeal.

AFFIRMED.

      . LSA-R.S. 42:457. Union dues
      “Any state, parish, or city employee may authorize his employing department, board or agency to withhold from his salary a specific amount for such pay periods as may be designated, for payment of his dues to any labor organization to which he belongs and which he designates therein. In such cases, the employee must voluntarily execute and furnish to the employing department, board or agency a written and specific authorization for such deductions; provided, however, that the employing authority may elect whether or not to make such deductions. Any amount withheld in accordance with the provisions of this Section shall be remitted forthwith to the organization designated. In the event such deductions are made, the employer shall be authorized to deduct postage and such other expenses that may be incurred in connection with such collection and remittance.”

      . “Governing authority” is defined as the body which exercises the legislative functions of political subdivisions. LSA-Const. Art. 6, § 44.

      . Ten organizations were notified that deductions would terminate: World Insurance Company, Black Organization of Police, Friedberg’s Uniforms, Inc., American Federation of Police, Labiche’s Inc., Fraternal Order of Police, Pan American Life Insurance, Public Employees Association of New Orleans, Police Association of Louisiana (Local 253 — PAÑO) and Police Mutual Benevolent Association.

      . Section 4-206. Powers and Duties. (1) Executive and Administrative Powers. “The Mayor shall be the chief executive officer of the City. He shall have the power and shall be required to:
      ♦ ♦♦♦♦♦
      (3) Other Powers. “The Mayor shall:
      (a) Exercise such other powers and perform such other duties as may be prescribed by this Charter, by ordinance or by applicable State Law.
      (b) Have a voice but no vote in the proceedings of all boards created by this Charter of which he is not made an ex officio member.”

      . Section 3-118. “Adoption of Pay Plans. All persons employed by the City or any of its boards, whether as officers or otherwise, and paid either in part or in whole from appropriations made by the Council, except those whose compensation is fixed in this Charter, shall be compensated only in accordance with pay plans adopted by the Council. The pay plan for those persons in the classified service shall be in accordance with the prevailing provisions of the civil service law and the rules and regulations adopted thereunder. The pay of all other persons shall be upon the basis of a pay plan recommended by the Mayor and adopted by ordinance.”

      .Section 4-107(3). “Powers and Duties of Officers and Department Heads.

      The Mayor, or each officer or department head with the consent of the Mayor, shall submit to the Council for its approval such reasonable regulations affecting the public and necessary to the performance of the functions assigned to such office or department. No such regulation shall become effective until approved by resolution of the Council and inscribed in the Book of Regulations. Any such regulation may be rescinded or amended either by the same process as when originally submitted or by the Council at any time. All regulations shall be subordinate to the ordinances of the Council.” (Emphasis Supplied)


text:
    T. D. BICKHAM CORPORATION v. Dr. Ronald HEBERT & Alpha Partnership d/b/a Elk Place Dental Center.
    No. 12695.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 1982.
    Rehearing Denied May 19, 1982.
    McGlinchey, Stafford & Mintz, B. Franklin Martin, III, Elwood F. Cahill, Jr., New Orleans, for plaintiff-appellant.

      John J. Fenerty, III, New Orleans, for defendant-appellee.
    Before BARRY, BYRNES and WARD, JJ.
   BARRY, Judge.

T. D. Bickham Corp. purchased the Elk Place Medical Plaza in New Orleans at a judicial sale. Dr. Ronald Hebert, d/b/a Elk Place Dental Center occupied two suites in the Plaza pursuant to separate leases with initial ten year terms and two five year options. Bickham sued to evict Dr. Hebert contending the leases were subordinate to the mortgage on Plaza and the judicial sale canceled both leases. Bickham also sued Alpha Partnership alleging Dr. Hebert assigned both leases to Alpha contrary to a lease provision. The Trial Judge dismissed plaintiff’s eviction rule and the following issues are on appeal:

1) Is an unrecorded lease dissolved because of a judicial sale?
2)' Was the lease voided because of its alleged transfer?
3) Does the subordination clause rank the recorded lease inferior to a subsequent mortgage?

On October 2, 1975 Dr. Hebert signed a lease with Plaza for suite 1700 and on September 1, 1976 Dr. Hebert, d/b/a Elk Place Dental Center, executed a lease on suite 1717. The second lease was recorded on December 2, 1976. On December 22, 1977 the owner of Plaza placed a mortgage on the property in favor of Mutual Life Insurance Company of New York which later foreclosed and Bickham purchased the Plaza at the judicial sale on October 27, 1980. Bickham then notified Dr. Hebert the two leases were canceled but occupancy could continue pending renegotiation of the leases. The parties could not agree on new terms and on February 18, 1981 Bickham gave ten days notice to vacate after which this eviction rule was filed.

The lower court dismissed Bickham’s lawsuit and in brief oral reasons stated: “And all parties were aware of the amounts of the improvements that were made by some of the tenants and the considerations that were given to those tenants in order that these improvements would be made.” The court then said both leases were properly recorded.

We find no proof that the lease for suite 1700 was recorded and defendants’ answer to the eviction rule admitted the lease was never recorded. Any contract affecting immovable property is without effect as to third parties until filed for registry in the public records. LSA-C.C. Art. 2266; LSA-R.S. 9:2721. The unrecorded lease was dissolved by the judicial sale. Flower v. Pearce, 45 La.Ann. 853,13 So. 150 (1893). The lower court finding to the contrary was clearly wrong and is reversed.

Whether or not Dr. Hebert subleased suite 1717 is a question of fact. The lease provides:

“Lessee shall neither make a sublease nor any transfer of this lease, in whole or in part, nor give nor grant to anyone the use, possession or occupancy of any portion of the leased premises for desk room or other purposes ...”

Bickham maintains the Alpha articles of partnership mention suite 1717 as its address and the lease was Dr. Hebert’s contribution to its capital. Also, the dentists agreed to indemnify each other for any liability in excess of their pro-rata shares. Bickham cites LSA-C.C. Art. 2725 which provides that a sublease prohibition clause is to be strictly construed and LSA-C.C. Art. 2729 entitles either party to a cancellation. In Illinois Central Gulf Railroad Co., v. International Harvester Co., 368 So.2d 1009 (La.1979) the Supreme Court held the strict construction required by art. 2725 applied against the lessee. Bickham urges Dr. Hebert’s actions amounted to a sublease violation which dissolved the lease.

Dr. Hebert testified he was a self-employed orthodontist and wasn’t employed by, nor received a salary from, the Alpha Partnership. He was the sole owner of Elk Place Dental Center when he signed the 1717 lease. He stated the clinic was originally organized for some dentists to be employees and others to participate in its ownership. After two years his dental associates decided to buy into the clinic and that was accomplished by forming Alpha. Each contributed capital and the partners assumed the rental for suite 1717. Dr. Hebert said Alpha had no bank account and Elk Place Dental Center made all lease payments.

These facts indicate Alpha Partnership was only a vehicle for business purposes. The lease was always in Dr. Hebert’s name, d/b/a Elk Place Dental Center. The same parties used the suite before and after Alpha was formed and the premises were never used for anything other than dental offices. Further, we note Dr. Hebert’s personal liability for the lease didn’t change. Defendants’ possession of 1717 remained constant from inception of the lease and Bickham’s status as lessor was never in jeopardy. Our courts have been reluctant to dissolve a lease, and then only when the lessor is clearly entitled it. Atkinson v. Richeson, 393 So.2d 801 (La.App. 2d Cir. 1981). Based on this record we conclude Dr. Hebert’s actions did not constitute a sublease in contravention of the lease.

The last issue is res nova and involves a question of law, i.e., the interpretation of the following subordination provision:

“This lease shall at all times be subject and subordinate to the lien of any mortgage or mortgages now or hereafter placed upon said “EPMP” (Plaza), and to all advances made or hereafter to be made upon the security thereof. Lessee agrees to execute and deliver such further instrument or instruments, subordinating this lease to the lien of any such mortgage or mortgages, at any time same may or shall be desired by any mortgage or proposed mortgage of any Lessor.”

There was testimony from a former employee of the Plaza who negotiated the leases with Dr. Hebert. Over Bickham’s objections, he testified about discussing the subordination clause with Dr. Hebert and advised him of its meaning, after which Dr. Hebert borrowed money for improvements to the suites. However, this testimony is immaterial because leasehold improvements aren’t germane to our determination of the subordination clause’s validity.

The 1717 lease was recorded December 2, 1976 and the former owner’s mortgage executed on December 22, 1977. Bickham argues the mortgage rendered the lease inferior as a matter of law and the judicial sale dissolved the lease as if it had been recorded subsequent to the mortgage. Bickham cites Richey v. Venture Oil & Gas Corp., 346 So.2d 875 (La.App. 4th Cir.) writ ref., 350 So.2d 891 (La.1977), wherein the court approved a similar contractual provision modifying rights established by law. Bickham asserts the language of the subordination clause is clear and unambigious and means the lease would be inferior to any mortgage and it is entitled to rely on the recorded lease indicating the Plaza was purchased free and clear of the leases. Bickham argues the rationale of this clause is the negative economic effect of a long term lease which impairs the value of a building. Also, the clause protects the lender in the event of a foreclosure.

Defendants respond that the subordination clause is general and indefinite, whereas the clause in Richey, supra, was specific in subordinating land to a specific mortgage. Defendants assert a strict reading of the clause clearly shows an intention to reserve to the lessor the right to enter into a future mortgage, but subordination would take place only after a mortgage and upon execution of a specific contract with the lessee which never happened.

We feel the subordination clause is clearly ambiguous and therefore should be interpreted in favor of the lessee. Wilson v. Cost + Plus of Vivian, Inc., 375 So.2d 683 (La.App. 2nd Cir. 1979). It provides lease subordination” ... to the lien of any mortgage or mortgages now or hereafter placed ...” (emphasis added). This would allow a lessor to subordinate a lease at any time merely by borrowing any amount of money and the lessor’s good faith is immaterial. If the lessor isn’t satisfied with the current lease, or higher rents are desired, then a fresh mortgage and subsequent foreclosure cleans the slate and the lessee is at the mercy of the lessor to either sign a new lease or be evicted. This type of general open-end provision is vague, indefinite and repugnant to the bilateral nature of a contract, and in our opinion is contra bonos mores. “Every condition of a thing impossible, or contra bonos mores (repugnant to moral conduct) or prohibited by law, is null, and renders void the agreement which depends on it.” LSA-C.C. Art. 2031.

We note the very broad and indefinite qualifying provision of the subordination clause:

“Lessee agrees to execute and deliver such further instrument or instruments, subordinating this lease to the lien of any such mortgage or mortgages, at any time same may or shall be desired by any mortgage or proposed mortgage of any Lessor.”

Bickham does not assert, nor is there proof, that defendants were ever requested to execute a subordination instrument after the mortgage on December 22, 1977.

We therefore sever from the suite 1717 lease the entire provision relating to subordination as quoted hereinabove. Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1976). The lower court judgment is reversed so that plaintiff/appellant is awarded possession of suite 1700 of the Plaza; in all other respects the judgment of the District Court is affirmed with appellant to pay all costs of appeal.

REVERSED IN PART; AFFIRMED IN PART.

      . LSA-C.C. Art. 2725. LESSEE’S RIGHT TO SUBLEASE. The lessee has the right to under-lease, or even to cede his lease to another person, unless this power has been expressly interdicted.
      The interdiction may be for the whole, or for a part; and this clause is always construed strictly.

      . LSA-C.C. Art. 2729. FAILURE OF PARTIES TO FULFILL OBLIGATIONS. The neglect of the lessor or lessee to fulfill his engagements, may also give cause for a dissolution of the lease, in the manner expressed concerning contracts in general, except that the judge can not order any delay of the dissolution.


author: BAILES, Judge. GARRISON, Judge,

text:
    Doyle R. PATRICK, for Anthony Patrick v. Charlene INCAPRERA, and First of Georgia Insurance Company.
    No. 11871.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 1982.
    Rehearings Denied May 19, 1982.

      Giraud, Cusimano, Yerderame & Loev, Thomas L. Giraud and Robert M. Loev, New Orleans, for plaintiff-appellee.
    Turner & Young, Emile L. Turner, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA, GARRISON, KLIEBERT and BAILES, JJ.
   BAILES, Judge.

This is an appeal by defendants, Charlene Incaprera, and her public liability insurer, First of Georgia Insurance Company, from the judgment of the trial court rendered on the verdict of the jury which tried the case.

This tort action arises from an injury which the minor, Anthony Patrick, age fifteen years, sustained to his right foot on August 30, 1977 while cutting grass on the vacant lot of ground owned by defendant, Charlene Incaprera. The situs of the accident was adjacent to the home property of the plaintiff who resides at 3412 West Loyola Drive in the city of Kenner, Louisiana.

This lot had been owned by Mrs. Incap-rera since the 1960s. She maintained no regular schedule for the physical care of the lot. However, from time to time during her ownership when called on by the City of Kenner weed department she would pay the cost of cutting the grass and weeds. The record shows that the lot was last cut on August 17, 1977 which was thirteen days prior to the accident. Mr. Greg Cantrell, the contractor who cut the grass the last time, appeared as a witness with his records which verified the date of the last cutting.

It appears that on the morning of the accident Anthony Patrick, after cutting his own yard, moved over to the adjoining In-caprera lot to cut what was referred to as a buffer strip six to eight feet wide next to the Patrick fence. His testimony explains his version of how the accident occurred:

“Q. All right. Let’s talk about how the accident occurred. You are pushing, and you are pushing along, and then what happened?
A. I was pushing along, normal pace. And the lawn mower struck something. I don’t know what it was, struck something; kicked up at an angle, say like the lawn mower would be sitting like this (indicating) kicked like this. I was coming down, you know, when you come down like that (indicating); and the lawn mower just hit it and the blade struck my foot right at the seam of my shoe.
Q. You’re pushing it, and you are certain that the blade hit something?
A. I assume the blade hit something, yes.
Q. Could it have been the front of the cover?
A. It may have been, I don’t know. It happened so fast, I really didn’t get to stop and look. I was worried about bleeding to death right there.
Q. When you were pushing this particular lawn mower, and it struck something, did it go up?
A. No, it didn’t go up. It sort of like it hit and it kind of like, you know, when something jumps back — it happened so fast, it just went — it just jumped back a little, and went up like that (indicating). And I walked into it.”
(T-181, Lines 13-29; T-182, Lines 1-12)
Q. Are you saying that your right foot went underneath?
A. It didn’t go underneath, It was sort of like it went up, and then when I was finally — it happened so fast that it just struck my foot. I just let go of the lawn mower, and I hopped to the car.
Q. Isn’t there a safety device on the back of that lawn mower?
A. Yes, and somehow it kicked up. I don’t know how, but it did kick up.
Q. And it came back, is that what your testimony is?
A. Just a little.
Q. And you still had your hands on the handle?
A. Yeah. It happened so fast, I really didn’t have time to let go of it.
Q. You are sure that it kicked back and it didn’t just go up, and you put your foot underneath?
A. Yes, sir.”
(T-182, Lines 25-29; T-183, Lines 1-16)

The plaintiff’s theory of recovery for the injuries sustained by young Patrick is that he was an invitee on the premises because he was there to perform a service for the benefit of the owner, that to a person of such status the owner is required to use ordinary care in maintaining the premises in a reasonable condition for such use by the invitee as is consistent with his purpose. Plaintiff argues that there is sufficient evidence to find that Mrs. Incaprera had not maintained her property in a “reasonably safe condition” for the use of a grass cutter.

Further, the plaintiff argues that if the invitee status is ignored and attribute a “licensee” status to young Patrick “Mrs. Incaprera’s reckless omissions and utter disregard for the safety of her neighbors represents a clear violation of the duty owed to a licensee.”

The plaintiff’s argument and analysis of the status of the injured is the traditional approach to the question of liability. However, the Supreme Court in the case of Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (1976) found the invitee-licensee-trespasser classification as defined in the common law to be of little help in applying Louisiana Civil Code Article 2315.

It appears indisputable that the cause in fact of Anthony Patrick’s injury was the presence of uncut grass growing on the Incaprera lot. Had there been no grass or weeds on this lot there would have been no occasion for Anthony to mow the buffer strip next to the Patrick fence.

According to the holding of Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (1976), a finding that the defendant’s conduct was the cause in fact of plaintiff’s injury, singularly, does not establish liability. In addition, it is necessary to determine and find that the landowner breached a legal duty imposed to protect the injured party against the risk involved.

In Shelton the Supreme Court said on page 410:

“ * * * * The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Thus the landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner. Alexander v. General Accident Fire and Life Assurance Corp., [98 So.2d 730] supra; Crittenden v. Fidelity and Casualty Co., 83 So.2d 538 (La.App.2d Cir. 1955).”

We find the plaintiff’s injury was brought about through his own negligence. He was attempting to cut the grass and weeds with a lawnmower and while doing so apparently struck some object the identity of which escapes this record thus causing the light machine to be thrown rearward into his foot. It was the lawnmower which caused the injury, and it was young Patrick who brought the mower onto the Incaprera lot. He was familiar with the premises, he and his father having cut the grass in this particular area on previous occasions. We find that the defendant, Charlene Incap-rera, breached no duty she owed Anthony Patrick. The injury was caused by the negligent operation of the lawnmower.

In argument before this court, the plaintiff, through his counsel, contends the facts indisputably establishes that the lot owned by Mrs. Incaprera was a “garbage dump, a cesspool, a place infested with snakes and rodents . . . ”; that defendant Incaprera breached the duty owned to the plaintiff; and that such condition presented an undue risk of harm to him.

Even assuming, arguendo, that the defendant breached the duty of keeping her premises safe from the undesirable qualities attributed to it, the injury to young Patrick did not arise from the risk encompassed within the duty breached. Shelton v. Aetna Casualty & Surety Company, supra.

Accordingly, for the foregoing reasons, the judgment appealed is reversed and the demands of the plaintiff are rejected at his cost.

REVERSED AND RENDERED.

GARRISON, J., dissents with written reasons.

GARRISON, Judge,

dissents and assigns reasons.

I respectfully dissent from the majority opinion on the ground that this case is not one in negligence, but one in strict liability on the part of the landowner for loss occasioned as a result of that ownership. The landowner knowingly allowed a dangerous condition to continue to exist after numerous warnings by the adjoining property owners. In the course of attempting to conserve and protect their own property, the adjoining property owners incurred the loss. Thus, the loss incurred arose out of a predial servitude under C.C. Arts. 651, 656, 667, and most important, Art. 688, which provides:

“A landowner has the right to demand that the branches or roots of a neighbor’s trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor.
“A landowner does not have this right if the roots or branches do not interfere with the enjoyment of his property.”

In the instant appeal, it is obvious that the overgrowth interfered with the adjoining property owners’ enjoyment of their property. Ronald Blackwelder, whose property also bordered on the vacant lot, testified to the condition of the vacant property and the landlord’s knowledge thereof:

“I called her and I told her that it was a cesspool, that the grass was high; that the rats and the mosquitos were coming out. I told her that. I also told her that if my little girl fell into it and drowned, that she was going to have problems. And she hung up on me.
“Q. And did you do anything personally to alleviate the problem which was caused by the lot between your house and the Patricks?
“A. Yes, sir, I did. My fence was right on the borderline. I went out there with a shovel and tried to dig some of the dirt to pack it around my fence. It kept falling into her property — her property, and on my side, her property right now is down about three feet. At that time, it was down more. There is water that just stands along the whole area, almost a hundred and thirty feet deep. Along the whole edge there is just water and mud and swash, mosquitos and rats.
******
“A. There are rats on it, there are snakes on it. There was mosquitos and they are imbedded. It’s a cesspool is what it is. We are getting rats in our house. Before it was mice, now it is rats. There was one that run in my stove last night. Now, there is no other empty property around. My dog died from the snake coming out of that — crawling up out of that empty lot.”

Under the doctrines of Canter v. Koehring, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), great weight is given to the credibility determinations and factual findings of the trier of facts, in this instance, the jury, because of its ability to observe the demeanor of the witness. This court is bound to uphold those findings and credibility determinations when, upon a full and independent review of the record, the appellate court cannot find that the trier of fact was manifestly erroneous. In the instant appeal, I cannot conclude that manifest error exists. I also find, as did the jury, that the landowner was given notice of the defective and dangerous condition of the premises on several occasions.

C.C. Art. 2316 provides as follows:

“Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

Additionally, C.C. Art. 2317 provides:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody -”

The test to be applied to determine landowner liability under C.C. Arts. 2316 and 2317 is, whether in the management of his property, the landowner acted as a reasonable man in view of the probability of injury to others. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976); Davis v. Moreau, 381 So.2d 1297 (La.App. 4th Cir., 1980).

In the light of the evidence presented we cannot disagree with the jury’s verdict that the defendant failed to act as a reasonable man in the light of the probability of injury due to the deplorable condition of the lot. Defendant’s property was literally an accident waiting to happen.


author: SWIFT, Judge.

text:
    RAPIDES MERCHANTS ASSOCIATION, et al., Plaintiffs-Appellants, v. RAPIDES PARISH POLICE JURY, Defendant-Appellee.
    No. 8853.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 1982.
    Christopher J. Roy, Alexandria, for plaintiffs-appellants.
    Edwin 0. Ware and Gus Voltz, Jr., Alexandria, Oliver Williams, Baton Rouge, Gravel, Robertson & Brady, Dan E. Melic-har, Alexandria, for defendant-appellee.
    Before CUTRER, SWIFT and LA-BORDE, JJ.
   ON RECONSIDERATION EX PROPRIO MOTU MOTION TO DISMISS

SWIFT, Judge.

We dismissed, ex proprio motu, the plaintiff-appellant’s appeal in the above captioned case, due to appellant’s failure to follow Section 1 of our internal rules which required the appellant’s brief be filed within 60 calendar days after the date of filing of the transcript of appeal.

The appellant has filed a Motion to Reconsider our order of dismissal. We deny appellant’s motion.

Appellant argues that his failure to file his brief timely was due to a misunderstanding between appellant’s counsel and the clerk’s office as to when appellant’s brief was due. Our examination of the facts reveals this allegation to be incorrect. Although prior to the filing of the appeal there were discussions between counsel for the appellant and the clerk’s office as to whether the appeal was taken pursuant to Title 18 or Title 26 of the Revised Statutes, the clerk informed all counsel of record in this case on the day of filing that the court considered the appeal as one taken pursuant to Title 26, and therefore would be handled as an ordinary appeal. Pursuant thereto, the clerk sent out notice of appeal to all counsel of record. To these notices were attached “SPECIAL NOTICE OF RULE CHANGES” which notice clearly informed counsel of the internal rule of this court. Also on the notice of appeal itself was clearly set forth the date appellant’s brief was due, which notice is reproduced in pertinent part below.

Appellant further argues that this appeal was dismissed without any prior notice, This allegation we find is not correct. On January 25, 1982 counsel for the appellant was sent a letter informing him that his brief had not yet been received and therefore not timely filed, and specifically called counsel’s attention to our internal rule implementing Section 5(b), Rule 7 of the Uniform Rules, Courts of Appeal, that his appeal would be dismissed if his brief was not filed within 60 days of the date of the lodging of the record. A copy of this letter is reproduced below.

As to appellant’s last argument, that his counsel and the clerk had conversations concerning this case, we find such allegation to be true but all such conversations occurred prior to the 60 days having passed.

Appellant having failed to timely file his brief under our internal rule, even after having been warned of the consequences of his failure to do so, its appeal is hereby dismissed.


author: GULOTTA, Judge.

text:
    Freddie WILLIAMS v. Cornelius BERNARD, Sr., Cornelius Bernard, Jr. and the Allstate Insurance Company.
    No. 12609.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.

      Darleen M. Jacobs, New Orleans, for plaintiff-appellee.
    Murphy & Simon, E. Kelleher Simon, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and KLEES, JJ.
   GULOTTA, Judge.

In this action for Uninsured Motorist benefits, the sole issue confronting us is whether a jury properly awarded plaintiff an $8,000.00 judgment where the policy limit of coverage is $5,000.00. The policy was not introduced into evidence and its limit was not stipulated.

The insurer, appealing, claims introduction of the policy was unnecessary because of a “stipulation of the policy” during trial. We disagree. Accordingly, we affirm.

In an action under an insurance contract, the insured bears the burden of proving the existence of the policy and coverage. Collins v. New Orleans, Public Service, Inc., 234 So.2d 270 (La.App. 4th Cir. 1970); writ refused, 256 La. 375, 236 So.2d 503 (1970); B.T.U. Insulators, Inc. v. Maryland Casualty Co., 175 So.2d 899 (La.App.2d Cir. 1965). The insurer, however, bears the burden of showing policy limits or exclusions. Massachusetts Protective Ass’n. v. Ferguson, 168 La. 271, 121 So. 863 (1929); B.T.U. Insulators, Inc. v. Maryland Casualty Co., supra; Paz v. Implement Dealers Mutual Insurance Company, 89 So.2d 514 (La.App.1956).

After a stipulation that the defendant-driver was an uninsured motorist, the following exchange concerning uninsured motorist coverage took place during plaintiff’s testimony:

“Q. At the time of the accident did you have in effect and were you paying on a policy of uninsured motorist coverage with the Allstate Insurance Company?
A. Right.
Q. And would you please tell the jury the number of that policy.
THE COURT:
I don’t think that’s necessary.
MS. JACOBS: [Plaintiff’s attorney]
Okay. The policy has not been stipulated. The policy has not been stipulated to, Your Honor.
MR. BURVANT: [Insurer’s attorney]
Nobody has requested it. I have the policy here. We stipulate coverage.
MS. JACOBS:
But it’s not yet stipulated coverage.
THE COURT:
Well, I thought I saw an admission of coverage. Just one second. Let’s just check and see.
MS. JACOBS:
Judge, if counsel is willing to stipulate there was a policy of uninsured motorist coverage in effect with Allstate Insurance Company, that ends it as far as I am concerned. I don’t have to go into—
THE COURT:
Did you wish to do that, Mr. Burvant? MR. BURVANT:
Yes, Your Honor. Sure.
THE COURT:
The Court accepts the stipulation that Allstate did have in full force and does admit in its answer that it has a policy of insurance coveraging [sic] Mr. Williams for uninsured motorist at the time of this accident.”

It is clear from this exchange that plaintiff met the burden of establishing uninsured motorist coverage. Despite this stipulation, no mention was made of the $5,000.00 limitation and it was not brought to the jury’s attention. Once coverage is established, it then becomes incumbent upon defendant either to offer evidence of the limit of the amount of coverage or to stipulate the limit. Defendant failed to carry this burden. The jury’s failure to be aware of the policy limit was attributable to defendant. After coverage has been stipulated, an insurer cannot remain silent on extent of coverage and then complain when a jury awards an amount in excess of the policy limit.

We find support in Masaracchia v. Inter-City Express Lines, 162 So. 221 (La.App.1935), where the court was confronted with a burden of proof question involving an insurer’s limit of liability. In that case the court stated:

“Having given the matter further thought, we conclude that where, in a suit against a main defendant and also against the main defendant’s insurer, the insurer admits that it has issued a policy, it is a fair assumption, in the absence of allegations and proof to the contrary, that the policy limits are coextensive with the liability which, in the petition, is averred to exist, and that if it is not so coextensive, the insurer will so allege and will submit proof in support of its allegations.”

We recognize, however, that an insurer, as a matter of trial strategy, might very well decide not to introduce the policy into evidence because of fear that the policy limit may induce a jury to bring back a higher award for minor injuries. In our case, because plaintiff sustained soft-tissue injuries to the cervical and lumbar spine requiring conservative treatment by a family physician for approximately a four-month period, the insurer may well have valued the claim at far less than policy limits. Under these circumstances, although the jury awarded an amount in excess of the limit, we cannot say, even with the benefit of hindsight, that a strategy of not- introducing the policy was unwise. Nevertheless, we conclude-plaintiff is entitled to receive the $8,000.00 award. The judgment is affirmed.

AFFIRMED.

REDMANN, J., dissents.

      . Although defendant argues the trial judge should have granted a new trial to allow introduction of the policy, the real thrust of the appeal is that the jury award is excessive because it is above the policy limit.

      . The trial judge in oral reasons for denial of the motion for new trial stated, in pertinent part:
      “Numerous opportunities were given to Allstate’s counsel to introduce the policy and for trial tactics he did not wish that policy to be introduced into evidence, or for the jury to have knowledge of it. The Court wants to be very sure that if this matter is appealed, that it was not an inexcusable error or neglect, but a definite trial tactic by Allstate not to introduce the policy.”


text:
    STATE of Louisiana, DEPARTMENT OF NATURAL RESOURCES, DIVISION OF STATE LANDS v. Dennis J. TALLEY.
    No. 12841.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Cuthbert H. Mandell, Gerald P. Theriot, Baton Rouge, for plaintiff-appellee.
    Charles E. McHale, Jr., New Orleans, for defendant-appellant.
    Before GULOTTA, CIACCIO and LO-BRANO, JJ.
   GULOTTA, Judge.

Dennis J. Talley, the occupant of the premises 9025 Old Gentilly Road, appealing from a judgment of eviction in favor of the State of Louisiana, claims the First City Court of the City of New Orleans is without jurisdiction to render the eviction judgment. According to defendant, his answer claiming ownership of the land by virtue of thirty-year acquisitive prescription placed title and ownership of the subject property in issue and the City Court was without jurisdiction to determine title to immovable property. Talley argues further that the evidence to support the judgment of eviction was insufficient because only he was present at the hearing, no evidence was offered to support the State’s claim, and no appearance was made by counsel for the State.

Because we conclude the State has failed to establish title to the property to support the rule for eviction where title to the property has been placed in issue, we reverse and set aside the eviction judgment and remand the matter.

In the recent case of Michael J. Crowley v. Mrs. Sandra Jones Crowley, 409 So.2d 403, we stated that the First City Court was without jurisdiction to determine ownership of property in an eviction proceeding. However, we conclude in Crowley, where a defense to eviction is ownership or equity in the subject property, the plaintiff has the burden of showing a landlord-tenant relationship and must prove title to the property for eviction purposes (not necessarily title as against the world such as might be required in a title suit; but, a proprietary interest establishing the right to evict).

It is true that under LSA-Const. Art. 12, § 13, prescription cannot generally run against the State. Nonetheless, where title or ownership is raised as a defense, as in our case by defendant’s claim of ownership by thirty-year acquisitive prescription, plaintiff bears the burden of establishing title to the property for eviction purposes. Absent a showing of ownership in the State, the prohibition against the running of prescription is not applicable. It was clearly incumbent upon the State to establish by competent evidence its ownership of the subject property in this case beyond mere assertion of that ownership in the rule. The State simply failed to carry this burden.

We point out further that although the judgment states that G. P. Theriot, attorney for plaintiff, was present at the hearing of the rule, the State acknowledges in its brief that it was represented at the hearing by a deputy clerk of the First City Court who acted as an agent for the State. Significantly, no evidence of any agency relationship was included in the record.

While we might be inclined to dismiss the eviction suit, we deem it more appropriate to remand the matter for the opportunity of taking evidence not inconsistent with the views expressed herein. Accordingly, the judgment of eviction is reversed and set aside, and the matter is remanded for further proceedings.

REVERSED AND SET ASIDE; REMANDED.

      . Defendant relied on LSA-C.C.P.Art. 4848(1) which reads as follows:
      “Art. 4848 Limitations upon jurisdiction
      A parish court, city court, or justice of the peace court has no jurisdiction in any of the following cases or proceedings:
      (1) A case involving title to immovable property;”

      . LSA-Const.Art. 12, § 13 reads as follows:
      “Section 13. Prescription Against State
      Prescription shall not run against the state in any civil matter, unless otherwise provided in this constitution or expressly by law.”


text:
    FIREMEN’S CHARITABLE AND BENEVOLENT ASSOCIATION OF NEW ORLEANS, et al. v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 12859.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Writ Denied May 28, 1982.
    James Everett Brown, New Orleans, for plaintiff-appellee.

      Floyd F. Greene, New Orleans, for defendant-appellant.
    Before GULOTTA, CIACCIO and LO-BRANO, JJ.
   GULOTTA, Judge.

Plaintiff was awarded a judgment in the trial court in the amount of $8,158.01, the cost of repairs to a cemetery fence which was damaged when a New Orleans Public Service, Inc. bus went off the roadway, jumped the curb and struck the fence.

Defendant, appealing, claims plaintiff’s suit is barred by one-year prescription. (LSA-C.C. Art. 3536). According to NOP-SI, after the November 8, 1974 accident a NOPSI claims representative investigating the accident was advised by plaintiff that the repairs to the fence would be made by plaintiff’s contractor, but no agreement had been made on the price of the repairs or the estimate of the cost. NOPSI claims that it was not until 1976 that the invoice for the repairs was sent to them by plaintiff and demand for payment made. Based on the lapse of a period in excess of one year between the November 8, 1974 accident date and plaintiff’s May 17, 1976 demand for payment, NOPSI asserts the claim has prescribed.

Defendant’s exception of prescription was referred to the merits and after trial judgment was awarded in favor of plaintiff for the cost of repairs. No reasons were assigned.

Because we conclude that defendant acknowledged the indebtedness to plaintiff for the cost of repairs, we affirm the judgment.

LSA-C.C. Art. 3520 provides:

“Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.”

In the comparatively recent case, Flowers v. U.S. Fidelity & Guaranty Co., 381 So.2d 378 (La.1980), on rehearing, the Louisiana Supreme Court applying the Codal provision in a one-year prescription personal injury case stated that acknowledgement sufficient to interrupt prescription “... may be made verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways; and that it may be implicit or it may be inferred from the facts and circumstances.” (Cases cited.) The Flowers court in the original hearing had concluded also that an acknowledgement may be made by a debtor without knowing the exact amount of the debt owed. Also, according to Flowers, the acknowledgement need not be in any particular form and may be either expressed or tacit.

Our consideration leads to a conclusion, also apparently reached by the trial judge, that NOPSI acknowledged responsibility of and payment for the repairs to the fence.

Although the testimony regarding the circumstances surrounding the acknowl-edgement is conflicting, the record supports a finding that an acknowledgement was in fact made. Charles Danner, a plaintiff-executive officer, stated that a representative from NOPSI had come to see him shortly after the accident and agreed to allow plaintiff’s contractor to repair the fence. John C. Freese, Jr., the secretary-treasurer of F.C.B.A. stated that approximately three days after the accident a representative from NOPSI had come to the cemetery office to discuss the fence damage. According to Freese, this representative agreed to allow Wallace C. Drennan, plaintiff’s contractor, to make the repairs. NOPSI was interested in the work being done by a reliable contractor and Drennan was known by NOPSI and had done work for the public utility company.

Reference was made by Freese to a June 4, 1975 letter sent to NOPSI in which he enclosed the Drennan April 24,1975 invoice in the amount of $8,158.01. A copy of this letter was introduced into evidence; however, NOPSI claims it never received this letter. Also introduced into evidence was a May 17, 1976 letter from Freese to NOPSI in which was enclosed a copy of the Dren-nan invoice, together with a copy of the June 4, 1975 letter “requesting payment of the claim.” Finally, Freese corroborated Danner’s testimony that the NOPSI representative authorized Drennan to make the repairs. Freese explained that he was under the impression that the Drennan invoice had been paid immediately after the June 4, 1975 letter to NOPSI and it was not until May or June, 1976 when he was informed by Danner that Drennan’s bill had never been paid. It was then that he sent the May 17, 1976 communication to NOPSI. Defendant’s response in writing on July 14, 1976 to Freese was a denial of liability based on prescription.

The testimony of Freese regarding the authorization by the NOPSI representative to allow Drennan to make the repairs was corroborated by Carl E. Hellmers. Hellm-ers testified that he heard the conversation between Freese and the NOPSI representative which took place at the plaintiff’s office a few days after the accident. According to Hellmers he overheard the NOPSI representative say that NOPSI would be responsible for the damages and that they had insurance coverage.

Albert Browne, on the other hand, the NOPSI claims representative handling this claim, stated that he talked to Danner at the cemetery office but denied that he had talked to Freese or to Hellmers at any time regarding the claim. He stated that no authorization was made for Drennan to make the repairs, no figure on costs for restoring the fence had been agreed upon and no acknowledgment of payment by NOPSI was made for repairs to the fence. It was Browne’s understanding from a December 26, 1974 conversation with Danner and with Drennan that Drennan would let him, Browne, know the full cost of the repairs. Subsequent to January, 1975, according to Browne, he had heard nothing from Drennan or plaintiff and made no attempt to contact them.

Based on the facts surrounding the occurrence of the accident, the testimony of Dan-ner, Freese and Hellmers, and the exhibits, we hold that NOPSI acknowledged the indebtedness for the fence repairs thereby interrupting prescription. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . Although the Louisiana Supreme Court in Flowers, on rehearing reversed the conclusion reached in the original hearing, nonetheless, the legal conclusions regarding acknowledgement reached in the original opinion were reaffirmed on rehearing.


text:
    Charles J. KRAMER v. C. DONOVAN, Alwynn J. Cronvich, Sheriff of the Parish of Jefferson, and the Jefferson Parish Sheriffs Office.
    No. 12379.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Writ Denied May 17, 1982.

      George C. Stringer, Jr., Harahan, for Charles J. Kramer, plaintiff-appellee.
    A. W. Wambsgans of Cronvich, Wambs-gans & Michalczyk, Metairie, for C. Donovan, Alwynn J. Cronvich, Sheriff of the Parish of Jefferson, and the Jefferson Parish Sheriff’s Office, defendants-appellants.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This is a suit by an arrested person against a police officer for damages arising out of personal injury caused during his arrest. The trial court found that excessive force was used by the officer and awarded damages of $10,500.00. The defendants appealed and the plaintiff answered the appeal asking for an increase in damages.

Charles J. Kramer was arrested for reckless operation of a motor vehicle and driving while intoxicated in the early morning of November 6, 1977. He contends that Deputy Sheriff Charles Donovan beat him with a night stick without any justification and sues Deputy Donovan and his employer Alwynn Cronvich, Sheriff of the Parish of Jefferson. Kramer contends that after he was taken from his automobile, Deputy Donovan placed a night stick across his throat and pushed him against the side of his automobile to make a search. Kramer tried to remove the night stick because he could not breathe, and was struck repeatedly by the deputy with the night stick and knocked to the ground. Later he was taken to the Jefferson Parish East Bank Lockup where more events took place, but plaintiff had a faulty memory of those events.

In defense, the defendants contend that there was no beating at the scene of the arrest, but that the injuries plaintiff complains of took place in a section of the East Bank Lockup where preparations were being made to do the paperwork preparatory to an intoximeter test. Deputy Donovan contends that when he took the handcuffs off of the plaintiff, the plaintiff suddenly became violent, grabbed the deputy and struck him and a struggle ensued. The injuries were as a result of the struggle caused by plaintiff’s aggression.

The trial judge gave detailed reasons for judgment, and in those reasons he discussed the evidence presented, noting that there are many conflicts in the testimony. He resolved this problem as follows:

“Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact are left to the discretion of the trier of fact. Canter v. Koehring Company, 283 So.2d 716 (La.1973).
Dr. Clark testified that the plaintiff’s injuries would not have resulted from hitting the table and falling to the floor. Further, this Court feels that Dr. Clark’s testimony concerning the injuries more closely corroborates the testimony of the plaintiff.
Under all of the circumstances, this Court believes that excessive force was used by the defendant, Sgt. Donovan, against the plaintiff, during the arrest on November 6, 1977.”

Our examination of the evidence discloses that there are indeed a number of conflicts. The testimony conflicts as to the location where the injuries were inflicted, the weapons or objects that caused the injuries, and whether plaintiff was the aggressor. A reasonable trier of fact could reach a decision in support of either party, dependent upon which testimony he believed to be credible. As quoted above, the trial judge concluded that plaintiff’s injuries could not have occurred in the fashion that the defendant testified to, but the injuries were consistent with those that would be inflicted by a club or night stick. We note that regardless of where the beating took place, the plaintiff testified that he was beaten with a night stick and the defendant testified that he was struck only with fists, and that falling against various articles of furniture caused the major injuries. We agree with the trial judge that the testimony of Dr. Norman Clark of Ochsner Hospital, who examined plaintiff just after the events took place, is to the effect that the injuries were consistent with those that would be inflicted by a club. Accordingly, we must affirm the trial court’s decision.

The standards of appellate review of facts are delineated by the Supreme Court in the case of Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In explanation of the principles of appellate review stated in Canter v. Koehring, supra, relied on by the trial judge, the Supreme Court stated that an appellate court should not disturb a finding of fact unless it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding of the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous). In applying that principle to this case, although one could reasonably reach an opposite result, we cannot say that the decision of the trial judge is clearly wrong.

In our consideration of the evidence presented, we also note the objection taken by the defendant to the trial judge’s refusal to permit evidence of the plaintiff’s conviction on a criminal charge of simple battery against the police officer. The defendant offered the proof of conviction under the provisions of L.R.S. 13:3739 which we quote:

“A person claiming damages for injury to person or property, or for wrongful death, in a civil action may introduce evidence that a party alleged to have caused the damages was convicted, either after a trial or upon a plea of guilty, but not upon a plea of nolo contendere, of a crime punishable by death or imprisonment and arising out of the factual circumstances in which the party is alleged to have caused the damages.
Proof of the conviction in the civil action shall create a rebuttable presumption that the party in fact committed those acts essential to the commission of the crime. A judgment of conviction shall not be admissible during the pendency of an appeal to a Louisiana appellate court.”

The trial judge refused to permit the evidence to be introduced pointing out that the defendant, who sought to introduce the conviction, was not “a person claiming damages” but that the plaintiff was such a person. We agree that the statute may be availed of only by the person claiming damages, and the evidence was properly excluded.

The only other issue before us is the amount of damages which are complained of as excessive by the appellant and complained of as insufficient by the appellee in his answer to the appeal, Louisiana Civil Code Article 1934(3) provides that much discretion must be left to the judge in the assessment of damages in cases of offenses, and we see no reason to disturb his discretion in this case.

For the reasons assigned the judgment is affirmed.

AFFIRMED.


text:
    Yvetta CHESSER v. The FIDELITY & CASUALTY COMPANY OF NEW YORK.
    No. 12388.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Roger J. Larue, Jr., Metairie, for Yvetta Chesser, plaintiff-appellant.
    Charles R. Capdeville, Metairie, for Fidelity & Cas. Co. óf New York, defendant-ap-pellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This appeal is taken by a plaintiff from a judgment awarding her $5,000.00 for general damages as a result of being injured in an automobile accident. The plaintiff appeals claiming that the award is unreasonably low. We affirm.

On January 13,1978, Yvetta Porter Ches-ser was driving her vehicle down the River Road in Marrero, Louisiana, when a car being driven by the defendant, Cynthia Re-boul, struck Chesser’s car in the rear. Chesser had been driving her car to work when she noticed that she was having some mechanical problems so she decided to pull her car onto the shoulder of the road. In the meantime, Reboul had been following her for sometime and when Chesser began to have mechanical troubles, Reboul stopped her car to allow Chesser to get off the road. Reboul then proceeded forward somehow hitting the curb causing her to crash into Chesser’s vehicle. As a result of the accident, Chesser claims that her head snapped back causing injuries to her neck and back. In addition, she argues that these injuries has caused her additional mental problems which kept her from holding onto a job.

At trial, several doctors for both parties testified to the mental disposition of the plaintiff. Their opinions ranged from one opinion that the mental state of the plaintiff was one of hysteria to several opinions that she was completely normal. In regards to the physical injuries suffered in the accident, it was determined that Chesser had been suffering from some severe back pain long before the accident occurred and, in fact, Chesser was wearing a back brace at the time of the accident. Subsequently, she was also involved in a second accident which caused further complications in roughly the same area. In view of these facts, we cannot say that the jury award was unreasonably low. In situations of this kind, it is difficult to accurately assess the amount of injuries that the plaintiff suffered in the incident in question because of her prior condition and the subsequent accident. With this in mind, we believe the damages award of $5,000.00 made by the jury was not an abuse of discretion. See L.S.A.C.C. 1934(3).

Appellant also argues that the award given was unreasonably low because the trial judge made improper jury charges. At trial, the plaintiff requested two special charges concerning the right of the plaintiff to recover for any psychiatric injuries that she may have suffered or for the aggravation of any prior mental condition. The trial judge refused both charges preferring to give the general charges that he had prepared concerning any possible mental anguish that the plaintiff may have incurred as a result of the accident in question.

We have read the charges in question and find that in the general charges submitted to the jury by the trial judge, he specifically charged the jury to award compensation for any pain, suffering, or mental anguish for injury sustained which proximately resulted from the accident. The trial judge also charged the jury to compensate the plaintiff for pain, suffering, or mental anguish that the plaintiff is reasonably certain to suffer in the future which is the proximate result of the accident. Additionally, he charged that the jury may award damages for any loss of plaintiff’s ability to perform normal physical activities and functions as well as personality changes that may affect her activities. Consequently, we find no error in the trial judge’s rulings regarding the jury charges in question.

In accordance with the above opinion, we affirm the jury’s finding that the plaintiff is entitled to $5,000.00 in general damages for injuries sustained in the accident in question.

AFFIRMED.


text:
    Pamela Flynn DESHOTEL v. AVONDALE SHIPYARDS, INC.
    No. 5-202.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Writ Denied May 28, 1982.
    Delbert G. Talley, Gretna, for Avondale Shipyards, Inc., defendant-appellant.
    Gerald T. Laborde, New Orleans, and Gregory W. Roniger of Dalton, Gillen & Roniger, Jefferson, for Pamela Flynn Desh-otel, plaintiff-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

A worker sues her employer seeking workmen’s compensation benefits for a work-related accident which she claims left her permanently disabled. The trial court determined that she was temporarily disabled and awarded her weekly benefits of $135.57 for a period of about two years. The employer appeals.

On March 9,1979, Pamela Flynn Deshotel was working for Avondale Shipyards, Inc., as a laborer when she was struck in the back by a piece of equipment causing injuries to her back, shoulder, and arm. She was taken to Ochsner Foundation Hospital for immediate care and was later referred to Dr. Naum Klainer, an orthopedist. Dr. Klainer examined her and found her to be in great pain in the neck and shoulder areas. Dr. Klainer had her admitted to West Jefferson Hospital to be tested for nerve conduction studies to determine if she was suffering from a herniated disc in her neck. The results were negative and she was then referred to another orthopedist, Dr. Mark Juneau. Dr. Juneau’s report reflected that she was suffering from a cervical strain; however, after a few weeks of traction he released her to return to full duty status on May 14, 1979, despite her constant complaints of pain. Relying on Dr. Juneau’s report, Avondale terminated all compensation benefits on May 16, 1979.

Deshotel attempted to return to work but found that she was unable to perform her duties because of the pain in her hand, shoulder and back. She then went to another orthopedist, Dr. Irving Redler, and a family practitioner, Dr. W. M. Bagnetto, in June of 1979. Both doctors’ reports indicated that she had experienced some pain but felt she was capable of returning to work. Although she claims she was still experiencing pain, Deshotel attempted to return to work in the summer of 1979, but was refused admittance to the Avondale work yard. She later attempted to do other types of work but claims she was incapable of holding any steady employment because of her weakened condition. She finally was referred to Dr. Arthur J. Morris & Associates, radiologists. Thermographic studies were performed on the patient on November 19, 1980, and again on March 13, 1981. These studies simply detect abnormal heat patterns of the body which would indicate any muscular injuries or spasms. Dr. Morris testified that the results of the first examination proved without question that due to abnormal heat patterns, she must have sustained some type of nerve root injury in the hand and arm as well as the muscular damage to the back. In addition, Dr. Morris testified that the results of the second examination showed that most of her injuries had healed and that she should be able to return to work. The trial court awarded Deshotel compensation benefits from June 1, 1979, until March 13, 1981.

Avondale appeals the award arguing that the benefits paid through May of 1979 more than adequately compensate her considering the medical evidence presented in the record. Avondale argues that the reports of Drs. Juneau, Redler and Bagnetto more than reasonably prove that Deshotel was capable of returning to work in the summer of 1979. However, the trial court was impressed with the testimony of Dr. Morris concerning the use of thermography and its advantages over the EMG’s and x rays used by the other doctors. Dr. Morris explained that thermography could detect many injuries that existed much more readily than the other tests mentioned and that ther-mography was extremely accurate. It was his belief that Deshotel had some persistent injuries as a result of the work-related injury but that some injuries had cleared up as of the second examination date. In its reasons for judgment, the trial court was convinced that the information gathered by the use of thermography was reliable and that it accurately indicated the condition of Deshotel. The trial court weighed the probative value of the doctors’ reports against the testimony of Dr. Morris and the use of thermography and decided to award Desho-tel compensation.

We agree with that determination made by the trial court. After reading the testimony and examining the evidence presented, we cannot say that Avondale has shown to us that the decision made by the trial court was manifestly erroneous. On the contrary, the evidence indicates that Desho-tel was seriously injured in the accident in question and the injuries complained of may indeed manifest themselves for some time. Accordingly, we affirm the trial court’s granting Deshotel workmen’s compensation benefits from June 1, 1979, through March 13, 1981, at $135.57 per week.

AFFIRMED.


author: SCHOTT, Judge.

text:
    James Lawrence DECKER and Patricia Reardon Decker v. Michael A. MARCHESE and Kathryn Phyllis Guerra Lindfors.
    No. 12803.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.
    William T. Steen, New Orleans, for plaintiffs-appellees.
    Bush L. Gamble, Gamble & Gamble, New Orleans, for defendant-appellee.
    Ivor A. Trapolin, New Orleans, for third-party defendant-appellant.
    Before SCHOTT, KLEES and WARD, JJ.
   SCHOTT, Judge.

This suit was instituted by plaintiffs, Mr. and Mrs. James Lawrence Decker, against defendants, Michael A. Márchese and Kathryn Phyllis Guerra Lindfors, as an action by the buyers of a house in Chalmette, Louisiana, against the sellers for the cost of repairing a leaking roof over a portion of the premises. Defendants brought a third-party demand against C & Y Contractors and Builders, Inc. (hereafter appellant) alleging that appellant had breached its contract with defendants to repair the roof. The parties stipulated as to the cost of the roof repairs and defendants’ liability to plaintiffs for this amount on the main demand. After a trial of the third-party demand the court awarded defendants a judgment and this appeal has followed. The principal issue is whether the trial court correctly found that the contract between defendants and appellant was ambiguous so as to be properly construed against appellant. The other issue is whether appellant’s attempts to repair the leaks just prior to and following the sale from defendants to plaintiffs, had any probative value in assessing liability against appellant.

While defendants were residing in this house (they were married at the time but subsequently were divorced and both remarried) it was damaged in a flood on May 3,1979, and a fire on May 10,1979. Following the flood and the fire the Fidelity Homestead Association which held the mortgage on defendants’ home engaged C. Earl Colomb to estimate the damage to the property. He did so and apparently verified that the amount tendered by the flood insurer was in order. With respect to the fire loss he negotiated with the fire insurer in behalf of both the Association and defendants, reaching a settlement of $16,500. On March 26, 1979, appellant, of which Co-lomb was one of the principal officers and owners, entered into a contract with defendants to repair the damage to the property for $16,500.

The contract begins on the first page under the letterhead of C & V Contractors and Builders, Inc. and the name and address of defendant, Mr. Michael Márchese, with the reference:

“Fire Loss
612 W. Prospher Street
Chalmette, La.”

This same reference “Fire Loss” is repeated at the top of each of the following three pages of the contract. Following the reference on the first page the contract reads: “We propose to furnish all the necessary labor and material to complete the following work:” There follow four pages of detailed specifications of the work to be done including the items to be replaced, the material to be applied or installed and items to be removed and demolished on a room by room, wall by wall, and ceiling by ceiling basis. Under the category “EXTERIOR” the contract calls for such detailed work and contains the following:

“Check roof for leaks and replace any missing or broken shingles or ridge tiles.”

The contract was performed and the house was subsequently put up for sale by defendants with Colomb as their real estate agent. He sold the house to plaintiffs and the act of sale was scheduled for February 7, 1980. On February 2 plaintiffs discovered that the roof over the solarium and playroom of the house was leaking. The main part of the house consisted of a living room, kitchen, three bedrooms and a laundry room. Over this portion of the house was a built up roof with shingles and ridge tiles but beyond the laundry and kitchen was the 30 foot long solarium and playroom connecting the main part of the house with the garages. Over the solarium and playroom was a flat roof constructed with plywood and topped by tin. Colomb had his company, appellant, do some patch work on the tin roof for $154 of which $87 was paid from the construction escrow account on deposit with the homestead and the balance of $67 he paid to appellant. The act of sale proceeded on schedule, but after plaintiffs moved into the house they discovered that the tin roof over the solarium was still leaking. At no expense to anyone Colomb had his company, appellant, do some additional patch work on this roof. In due course it developed that the tin roof had to be replaced at a cost of $2000, which is the amount of the judgment in the case.

At trial appellant offered the testimony of Colomb, its president Ferdinand Von Behren, and its supervisor, Edmond DeJan, to establish that the fire of May, 1978, had been confined to the main part of the house and did not affect the roof over the solarium. Some work in the solarium was included in the contract but it resulted from smoke or soot damage, and it consisted specifically of replacement of one window screen, wire brushing, sanding and cleaning wood ceiling and wall panels, applying one coat of stain and varnish to the ceiling, walls, doors and wood trim, replacing three missing jalousies, doing some work on the floor and replacing the door between the solarium and the garages. They testified that there was never any work contemplated or required on the roof over this room because it sustained no damage in the fire. They testified that throughout the period of time when the construction was going on, beginning in March, 1979, and while Colomb as real estate agent was trying to sell the property there was never any leak in the solarium. On the other hand, defendants offered evidence that some phonographs and toys which were in the solarium at the time of the fire melted because of the heat.

The trial judge in his reasons for judgment found that appellant prepared the renovation contract “which was intended to repair all the damage to the property from both casualties.” He found further that the contract language with regard to the roof was ambiguous with the result that he construed it against appellant as the draftsman of the contract. He further found that the fire caused the damage to the solarium roof and concluded that the contract obligated appellant to repair that roof and that appellant had breached its contract by failing to make such repairs.

At the outset we find that the contract is not ambiguous with respect to the roof and did not oblige appellant to repair the tin roof over the solarium. As already noted, the contract meticuously spells out all of the work to be done in the house as to labor and material and contains no details of any roof damage to be repaired other than the replacement of missing or broken shingles or ridge tiles. We have concluded that the trial judge erred in construing the words “check roof for leaks” as an obligation to remove and replace the plywood and tin over this solarium. If the parties intended this result they would have specified that work the same way as they specified the hundreds of other items contained in the contract.

Once this conclusion is reached the case could come to an end because defendants’ cause of action against appellant is based purely and simply on a breach of this contract. However, in his reasons for judgment the trial judge apparently attached some significance to the fact that when the roof leaks were found by plaintiffs Colomb immediately called his company to make the repairs and the company returned three or four times after the sale was passed to attempt additional repairs. We are unable to conclude that these efforts on appellant’s part somehow made it liable for the cost of replacing the tin roof. Any legal liability on appellant must flow from its original contract. Appellant’s gratuitous attempts to patch up the roof could not enlarge its contractual obligations.

The other point need not be addressed for our purposes in this opinion but will be addressed for the benefit of any reviewing court. We find that the trial court committed manifest error in concluding that the leaks in the tin roof were caused by the fire. We find from the testimony of appellant’s witnesses that the fire did not extend beyond the kitchen and laundry room and did not generate enough heat to cause any damage to the ceiling and roof over the solarium. This room extended 30 feet back from the laundry room to the garages and all of the leaks were on the end near the garages. The work required in the front of the house consisted of considerable demolition work with the removal of walls and ceilings. No such extensive work was required on the walls and ceilings in the solarium. The only evidence offered by defendants as to the effects of the fire in the solarium was with respect to damage to phonograph records and toys, but they offered no evidence, lay or expert, to show that this roof damage was caused by the fire. The evidence shows that the roofer engaged by plaintiffs was available to testify at the beginning of the trial but was excused. Perhaps he could have testified that the roof damage was caused by the fire but he was not called as a witness.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of third-party defendants, C & V Contractors and Builders, Inc., and against defendants and third-party plaintiffs, Michael A. Márchese and Kathryn Phyllis Guerra Lindfors, dismissing their third-party demand at their cost.

REVERSED AND RENDERED.


text:
    Louise Mackey, Wife of and Melvin MACKEY v. UNITED STATES FIDELITY AND GUARANTY CO., Lambert Electric Co., Inc. and Melvin Bouie.
    No. 12866.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Marc L. Popkin, Manard, Schoenberger & Ryan, New Orleans, for plaintiffs-appellants. i
    Shelley Hammond, Montgomery, Barnett, Brown & Read, New Orleans, for defendants-appellees.
    James M. Colomb, III, Murphy & Simon, New Orleans, for defendant in reconvention (Louise Mackey).
    Before SCHOTT, KLEES and WARD, JJ.
   SCHOTT, Judge.

This case arose out of an automobile accident which occurred at the intersection of St. Bernard Avenue and North Miro Street in New Orleans. Both drivers testified that the semaphore signals facing them were green at the time they entered the intersection and they both called independent witnesses who corroborated their testimony. In dismissing the consolidated suits of both drivers the trial judge stated that “it is impossible to say that either litigant has proved the correctness of his or her position by a preponderance of the evidence, or that his or her action did not contribute to the accident, hence barring recovery by either one or the other.” Louise Mackey, who was driving on St. Bernard Avenue has appealed from the judgment along with her husband, Melvin Mackey. Melvin Bouie, the other driver, did not appeal or answer the appeal. The issue is whether the dismissal of the Mackey suit should be reversed in the light of jurisprudence which tends to require the Court of Appeal to resolve such a dispute in favor of one driver or the other.

Bouie, traveling on North Miro Street, testified that the light facing him was green. Wanda Marie Aubert, driving her automobile also on North Miro alongside Bouie’s truck, testified that the light facing her was green when Bouie entered the intersection and even as the impact occurred. Her passenger, Shirley Aubert, testified that the light facing them was green as they entered the intersection.

Louise Mackey testified that the light facing her was green as she entered the intersection. Mathew Love, who was talking on a telephone at a booth on the corner, testified that he looked up at the light facing St. Bernard when the impact occurred and it was green. t

The Mackeys rely on United Services Auto Ass’n. v. Travelers Ins. Co., 255 So.2d 418 (La.App. 4th Cir. 1971) where this court, faced with a similar conflict in testimony with respect to which driver had the green light, held that the trial court which dismissed both claims had erred in failing to resolve the dispute. The court went on to say:

“In a case where both litigants present evidence on the same point, the decision on that point must favor one or the other, unless the evidence is exactly equal. When both sides present considerable evidence (as here), it is not practical and only remotely possible to accord exactly equal weight to the evidence on each side.”

The court went on to evaluate the testimony of all of the witnesses and concluded that one of the drivers had the green light, so that the other was negligent in failing to stop at the intersection.

However, in City of New Orleans v. Williams, 292 So.2d 744 (La.App. 4th Cir. 1974) this court, recognizing the applicability of the United Services Auto Ass’n. case, found that the duty to reconcile apparent conflicts cannot be discharged in a case where all the testimony is in hopeless conflict and other evidence in the record supports neither side. The court concluded that neither plaintiff nor defendant had discharged the burden of proof required by the law of the state and found that both claims were properly rejected.

In the instant case the trial court specifically found that neither driver proved his or her case by a preponderance of the evidence. From our review of the record we are compelled to reach the same conclusion. These are two separate consolidated cases. In theirs, the Mackeys alleged that Mrs. Mackey had the green light and Bouie violated the law by entering the intersection against a red light. Bouie based his case on the allegation that he had the green light and Mrs. Mackey violated the law by entering the intersection against a red light. Each driver had the burden to prove his or her case, and the trial court, after hearing the parties and the witnesses produced by each driver, concluded that neither carried his or her burden of proof. After reviewing the testimony of the witnesses we cannot conclude that the trial court committed manifest error in reaching his conclusion.

We add that the only appeal before us is by the Mackeys. If we were compelled to reach a conclusion opposite the one reached by the trial court we would be more inclined to resolve the dispute in favor of Bouie since his testimony was corroborated by a driver of an automobile alongside of his. Surely this driver was in a better position to know the status of the light at the intersection than was the Mackeys’ witness who was talking on a telephone at the corner of the intersection.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    JOE BONURA, INC. v. Betty Salisbury PARHAM.
    No. 12790.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.

      Clyde A. Ramirez, New Orleans, for defendant-appellant.
    Richard K. Simoneaux, New Orleans, for plaintiff-appellee.
    Before SCHOTT, KLEES and WARD, JJ.
   SCHOTT, Judge.

According to plaintiff’s witnesses the work under the contract had reached the stage where the floors were refinished and the walls papered or painted when George Parham told them to paint the ceilings. They testified that they explained to George that the painting would be expensive because of the extra care required to protect the finished work but George told them to proceed. Although George denied these allegations the trial judge resolved the conflict in plaintiff’s favor and that resolution is accepted in this court. As to the other extra items the record shows that most were authorized by George Parham although one or two were apparently authorized by defendant herself.

As to the painting and the other items authorized by her husband, defendant contends that he had no authority to bind her. However, the record supports defendant’s liability based on the principle of apparent agency even if she did not confer specific authority on her husband to speak for her. In Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (La.1973) the court discussed the principle thusly:

“. .. In this context, it is both fair and equitable to govern mutual rights and liabilities by the apparent scope of an agent’s authority because third persons, who are not privy to the actual terms of the agency agreement, must rely entirely upon the indicia of authority with which the agent is vested.... ”

In AAA Tire & Export, Inc. v. Big Chief Truck, 385 So.2d 426 (La.App. 1st Cir. 1980) the court had this to say:

“... The principal will be bound for such actions if he has put his agent in such a position or has acted in such a manner as to give an innocent third person the reasonable belief that the agent has authority to act for the principal. The facts and circumstances of each case must be examined to determine the reasonableness of the third party’s belief. One must look from the viewpoint of the third person to determine whether an apparent agency has been created. . .. ”

The doctrine’s application is warranted by the facts of the case. Parham regularly came to the house while the work was in progress and admittedly was there to check on the work for his wife. She never came and admittedly depended on him to keep her posted. He discussed the work with plaintiff’s personnel and specifically told them to paint the ceilings and do the other extra work. In addition, an independent craftsman who was not involved in plaintiff’s work and was, therefore, a disinterested witness, testified that Parham authorized him to install a dishwasher. The inference was clear to plaintiff’s personnel and others that Parham was in charge and was clothed with his wife’s authority to give them instructions. She was clearly bound by his actions.

Plaintiff is entitled to collect for its services on a quantum meruit basis. Although there was no contract for the price of the work plaintiff is entitled to a reasonable amount for labor and materials, overhead and profit. Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La.App. 3rd Cir. 1976); Brummett v. Hamel’s Dairy, Inc., 324 So.2d 502 (La.App. 2nd Cir. 1975). With respect to the painting of the ceiling, plaintiff established that he is entitled to the $2222.19 awarded. The extra care required to protect the refinished floor and freshly completed walls explained the high labor cost of this work. Plaintiff offered testimony to break down the charge into labor, materials, overhead and profit. Plaintiff offered similar testimony to support the trial judge’s award for the other extra work. Defendant offered no evidence to show that plaintiff’s charges were unreasonable. We conclude that there was no manifest error in the trial court’s conclusion.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.